California v. Zook/Dissent Frankfurter
Mr. Justice FRANKFURTER, dissenting.

My brother BURTON has set forth in convincing detail how the regulation of 'travel bureaus' for arranging transportation of passengers by motor carriers engaged in interstate commerce was taken over by federal authority, after experience had disclosed the inadequacy of state regulation. What I have to say only serves to emphasize my agreement with his conclusion.

In State of California v. Thompson, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219, this Court recognized that positive intervention of Congress was required to displace the reserve power of the State to promote safety and honesty in the business of arranging for motor carrier transportation even beyond state lines. As to such business the power of Congress to regulate commerce 'among the several States' was an excluding, not an exclusive, power-State action was not barred by the Commerce Clause but only by appropriate congressional action. State action is displaced only to the extent that Congress chooses to displace it. One would suppose that, when Congress has proscribed defined conduct and attached specific consequences to violations of such outlawry, the States were no longer free to impose additional or different consequences by making the same misconduct also a state offense. And that is this case.

For the first time in the hundred and twenty-five years since the problem of determining when State regulation has been displaced by federal enactment came before this Court, Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23, the Court today decides that the States can impose an additional punishment for a federal offense unless Congress in so many words forbids the States to do it. When Congress deals with a specific evil in a specific way, subject to specified sanctions, it is not reasonable to require Congress to add, 'and hereafter the States may not also punish for this very offense,' to preclude the States from outlawing the same specific evil under different sanctions.  To do so would impute to Congress the purpose of imposing upon a nationwide rule the crazy-quilt of diversity-actual or potential-in State legislation, when the federal policy was adopted by Congress precisely because it concluded that the manner in which the States, under their permissive power, dealt with the evil was unsatisfactory. Such an inference is a strained and strange way of interpreting the mind of Congress. It also disregards an important aspect of civil liberties, namely, avoidance of double punishment for the same act even though such double punishment may be constitutionally permissible. See Jerome v. United States, 318 U.S. 101, 105, 63 S.Ct. 483, 486, 87 L.Ed. 640.

Of course the same physical act may offend a State policy and another policy of the United States. Assaulting a United States marshal would offend a State's policy against street brawls, but it may also be an obstruction to the administration of federal law. Scores of such instances, inevitable in a federal government, will readily suggest themselves. That was the kind of a situation presented by United States v. Marigold, 9 How. 560, 13 L.Ed. 257. Passing counterfeit currency may, in one aspect, be 'a private cheat practiced by one citizen of Ohio upon another,' and therefore invoke a State's concern in 'protecting her citizens against frauds,' 9 How. at pages 568, 569, 13 L.Ed. 257, but the same passing becomes of vital concern to the Federal Government because it tends to debase the currency. Such a situation is quite different from this case. It merits repetition to say that we are now reversing a State court for holding that the very same conduct for the disobedience of which federal regulation imposes a maximum fine of one hundred dollars for the first offense cannot be prosecuted in a State court under a State law imposing a larger fine and, perchance, a prison sentence.

The talk about 'conflict' as a basis for displacing State by Federal enactment is relevant only in situations where Congress has chosen to 'circumscribe its regulation and occupy only a limited field,' while State regulation is 'outside that limited field,' and yet an inference of negation of State action is sought to be drawn. See Kelly v. State of Washington ex rel. Foss Co., 302 U.S. 1, 10, 58 S.Ct. 87, 92, 82 L.Ed. 3. Even in each circumstances this Court has drawn inferences of implied exclusion of State action although in no sense of the word would there have been physical clash between State and Federal regulation so as to preclude concurrence of vitality for both regulations. See, e.g., Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 786, 86 L.Ed. 754; Hill v. State of Florida ex rel. Watson, 325 U.S. 538, 65 S.Ct. 1373, 89 L.Ed. 1782. In this case we have the very conduct theretofore left to State regulation taken over by Federal regulation, and yet the Court superimposes upon the displacing Federal regulation the State regulation which was consciously displaced. That a Court which only on April 4, 1949, decided H. P. Hood & Sons v. Du Mond, 336 U.S. 525, 69 S.Ct. 657, as it did, should now decide this case as it does, presents indeed a problem for reconciliation. 

Notes

United States: fine of not more than $100 for the first offense and not more than $500 for any subsequent offense. 49 Stat. 564, 49 U.S.C. § 322(a), 49 U.S.C.A. § 322(a).

California: fine of not over $250 or imprisonment for not over 90 days or both, and on the second conviction, imprisonment for not less than 30 days or more than 180 days. For subsequent convictions, imprisonment for no  less than 90 days and not more than one year. Cal.Pen.Code § 654.3 (1947 Supp.).

Washington: fine of not over $250 or not over 90 days in jail; apparently additional offenses do not increase the punishment. Wash.Rev.Stat.Ann. § 2266 (1940), §§ 6397-19, 6397-20, (1941 Supp.).

Wyoming: fine of not less than $25, nor more than $100, or imprisonment for not more than six months or both. Wyoming Comp.Stat. §§ 60-1309, 60-1362 (1945). The applicability of these sections to a situation of the present type is not free from doubt.