Appellants Brief — King v. Priest

F=3 26 1948

SRAALIS ILOORE GROPLEY

OLERK

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1947.

DANIEL KING, ROBERT GOLDSMITH, )

ALBERT DALLAS, JOHN R. JUDGE,

TOBIN ANDERSON, JULIUS HOFF,

CHESTER WALK, JOHN ROONEY

and FRANK DEMPSEY, for and on

Behalf of Themselves and All Other

Patrolmen, Sergeants and Turnkeys

of the Metropolitan Police Force of

the City of St. Louis, Similarly

Situated, Appellants,

VS.

H. SAM PRIEST, THOMAS H. COBBS,

FRANCIS L. GEORGE, BEN L.

LIBERMAN and ALOYS P. KAUF-

MANN, Constituting the Board of

Police Commissioners of the City of

St. Louis, Appellees. )

Appeal from the Supreme Court of the State of Missouri.

APPELLANTS’ BRIEF IN OPPOSITION TO

DISMISSAL OF APPEAL.

/ S. D, FLANAGAN,

E. D, FRANEY,

506 Olive Street,

St. Louis 1, Missouri,

Attorneys for Appellants.

v

Sr. Louis Law Parintine Co., 415 North Eighth Street. CHE antral 4477.

coccesevddsaeeecvecerossetssresree™

Argument ......---seccrreeeerereseceersereseeeree®

(a) Rule 23, Section 342 of the Police Manual is a

‘‘Statute of a State’’ within the meaning of Sec.

237 (a) of the Judicial Cede. .ccccccccccsveces

(b) The appeal does involve a substantial federal

question as to the validity of Rule 23, Section

349 of the Police Manual......----++++++++++:

Cases Cited.

Brownwell v. Russell, 76 Vt. 326, 57 A. 108.....-000-

C. J. Hendry Co. v. Sematovich, 316 U. S. 643, 86 L. Ed.

1728, 62 S. Ct. 10381. .... 0. eee eeeeeeeccsectrssees

Carter v. Thompson, 1935, 164 Va. 312, 180 S. E. 410..

City of Jackson v. McLeod, 199 Miss. 676, 24 So. (2d)

319, certiorari denied 399 U. §. 863, 90 L. Ed. 1633,

66S. Ct. 1368 ....cec cece ee eeeeececeeercesserers

City of Springfield v. Clouse, 206 S. W. (2d) 539... .4,5,9

Congress of Industrial Organizations v. City of Dallas,

198 S. W. (2d) 148.....-- eee ee ere eeerreeeeeeeees

Ex Parte Curtis, 106 U. S. 371, 97 L. Ed. 232, 1 S. Ct.

GON _ .ccccccccssccescesoccesccaseossosonsvoveose

Fraternal Order of Police v. Harris, 306 Mich. 68, 10

N. W. (2d) 310, cert. den. 321 U. S. 68, 88 L. Ed.

1076, 64 S. Ct. TL... . ee cee eeeeerereeeerteresees

Frederick v. Owens, 1915, 35 Ohio Cir. Ct. R. 538... 10

Hutchinson v. Magee, 1923, 278 Pa. 119, 122 A. 34... 10

John P. King Mfg. Company v. City Council of Au-

gusta, 277 U. S. 100, 72 L. Ed. 801, 48 S. Ct. 197....

ii

McAuliffe v. Mayor of City of New Bediord, 155 Mass.

Ste Be Oia Te MIE Anode duececdeccceveeuedcseeses 10

Perez v. Board of Police Commissioners, City of Los

Maan, TH FOO. CBE). Gai scccccccvccccvcsescess 9

Seattle High School, Chapter No. 200, v. Sharples,

1930, 159 Wash. 424, 293 P. 994, 72 A. L. R. 1215. ..9, 10

State ex rel. Kennedy v. Remmers, 340 Mo. 126, 101

| SAS nee r aren 3

United Public Workers v. Mitchell, 330 U. S. 75, 91

Ss f 8 2g ee eee 7

United States v. Wurzbach, 280 U. S. 396, 74 L. Ed.

SS Ae Ms Da tin bnbebuseceeddescescencccey: 8

Statutes Cited.

Constitution of the United States, First and Fourteenth

DEE HnndDih dadctencaecesaeesteeessececed 6

Judicial Code, Sec. 237 (a) (c)..........eccceeees 2, 3,10

Se EE CED A EE ccc ecttcoccucecctcéccvadsce

ELEED THROUGH ~— POOR COPY

IN THE

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1947.

DANIEL KING, ROBERT GOLDSMITH, )

ALBERT DALLAS, JOHN R. JUDGE,

TOBIN ANDERSON, JULIUS HOFF,

CHESTER WALK, JOHN ROONEY

and FRANK DEMPSEY, for and on

Behalf of Themselves and All Other

Patrolmen, Sergeants and Turnkeys

of the Metropolitan Police Force of

the City of St. Louis, Similarly | No

Situated, Appellants, { ‘© °°"

vs.

H. SAM PRIEST, THOMAS H. COBBS,

FRANCIS L. GEORGE, BEN L.

LIBERMAN and ALOYS P. KAUF-

MANN, Constituting the Board of

Police Commissioners of the City of

St. Louis, Appellees. |

Appeal from the Supreme Court of the State of Missouri.

APPELLANTS’ BRIEF IN OPPOSITION TO

DISMISSAL OF APPEAL.

OPINIONS BELOW.

The opinions of the Supreme Court of the State of

Missouri in this cause are reported in 206 S. W. (2d) 547.

Since appellees in their statement of suggestions making

against the jurisdiction of this court are in effect asking

for a dismissal of the appeal heretofore allowed herein, ap-

pellants are filing this brief in opposition to such dismissal.

Inasmuch as in our statement as to the jurisdiction of

this court, particularly sections (e) and (f) thereof, we

have fully stated why we believe this court has jurisdic-

tion, we shall not repeat the arguments there set forth,

but shall endeavor to confine ourselves to replying to the

contentions of appellees in their statement.

(a)

Rule 23, Section 342 of the Police Manual, Is a ‘‘Statute

of a State’ Within the Meaning of Sec. 237 (a)

of the Judicial Code.

Appellees in their statement contend that since Rule 23,

Section 342 of the Police Manual, prohibiting members of

the Metropolitan Police Force from belonging to a union,

applies only to members of the force, and is not of general

application, it is not a ‘‘statute of a state’’ within the

meaning of Sec. 237 (a) of the Judicial Code. However,

we find nothing in the decisions of this court which would

thus restrict its jurisdiction. One of the leading cases de-

fining the term ‘‘statute of a state’’ is John P. King Mfg.

Company v. City Council of Augusta, 277 U. S. 100, 72

L. Ed. 801, 48 S. Ct. 197, where this court said:

‘*Any enactment from whatever source originating,

to which a state gives the force of law, is a statute of

the state, within the meaning of the clause cited re-

lating to the jurisdiction of this court.’

Appellees admit that municipal ordinances have been

considered ‘‘statutes of a state’’ by this court, since they

ELEED THROUGH — POOR COPY

a

are enacted by the municipal legislative bodies under au-

thority of power delegated to them by state legislatures.

A rule adopted by the Board of Police Commissioners of

the City of St. Louis under authority delegated to it by

Sec. 7695, R. S. Mo. 1939, was likened to an ordinance of

a municipality by the Supreme Court of Missouri in the

ease of State ex rel. Kennedy v. Remmers, 340 Mo. 126,

101 S. W. (2d) 70, 72. Consequently, a decision of the

Supreme Court of Missouri sustaining the validity of

such a rule should be reviewable by this court as in the

case of an ordinance of a municipality.

The challenged rule was adopted under authority of the

State of Missouri, and has the force of law just as if a stat-

ute to the same effect had been adopted by the legislature

of Missouri, for the rule must ‘‘be obeyed by the police

force on pain of dismissal or such lighter punishment * * *

as the board may adjudge.’’ Sec. 7695, R. S. Mo. 1939.

If a statute had been adopted by the Missouri legislature

embodying the substance of the rule, certainly this court

would have jurisdiction to review a decision of the Su-

preme Court of Missouri upholding it, and we are unable

to perceive how the fact that the rule was adopted by ap-

pellees’ predecessors in office, pursuant to authority dele-

gated to them by the legislature, can deprive this court

of such jurisdiction.

If, however, this court feels that an appeal does not lie

in this case, we respectfully pray that the papers on which

the appeal was allowed be regarded and acted on as a

petition for certiorari, and that certiorari be granted.

Sec. 237 (c) of the Judicial Code, as amended. 28 U.S. C. A.

344 (c). C. J. Hendry Co. v. Sematovich, 316 U. S. 643, 86

L. Ed. 1728, 62 S. Ct. 1031.

var Fu

(b)

The Appeal Does Involve a Substantial Federal Question

as to the Validity of Rule 23, Section 342

of the Police Manual.

Appellees contend that since a number of state courts

have upheld rules similar to Rule 23, Section 342 of the

Police Manual, and the decision of the Supreme Court

of Missouri was unanimous in sustaining the rule, this

appeal does not raise any substantial federal question. Ap-

pellees also cite decisions of this court in which restric-

tions on the right of civil service employees engaging in

political activities have been sustained. The question as

to whether a state or a municipality may prohibit its offi-

cers or employees from belonging to a labor union without

violating their rights under the Constitution of the United

States, however, has never been decided by the Supreme

Court of the United States, and we respectfully submit

that it should be in view of the numerous cases arising

and which are likely to arise in which the right to join

unions is or will be asserted by such officers or employees

under their rights of freedom of speech, assembly and

petition guaranteed to all persons by the First and Four-

teenth Amendments to the Constitution of the United

States. After all, the final determination of the rights of

such state and municipal employees under the federal con-

stitution is a matter for this court, and the sooner this

court authoritatively determines the same, the better for

all persons concerned.

The Missouri Supreme Court, en Banc, in the case of

City of Springfield v. Clouse, 206 S. W. (2d) 539, decided

concurrently with the case at bar, while holding that public

officers and employees do not have the right of collective

bargaining with their employers, nevertheless does recog-

nize that public officers and employees generally do have

rreen he wien: . npomnnrano eo

— we

the same rights as other citizens to organize and bring

their problems to the attention of public officers and legis-

lative bodies. We quote from the decision of the court

(1. ¢. 542):

‘This ruling does not mean, as defendants’ counsel

seem to fear, that public employees have no right to

organize. All citizens have the right, preserved by

the First Amendment to the United States Constitu-

tion and Sections 8 and 9 of Article 1 of the 1945

Missouri Constitution, Sections 14 and 29, Art. 2, Con-

stitution of 1875, to peaceably assemble and organize

for any proper purpose, to speak freely and to pre-

sent their views and desires to any public officer or

legislative body. Employees had these rights before

Section 29, Article 1, 1945 Constitution, was adopted.

See Allen-Bradley Local No. 1111, United Electrical,

Radio & Machine Workers of America v. Wisconsin

Employment Relations Board, 237 Wis. 164, 295 N. W.

791, affirmed 315 U. S. 740, 62 S. Ct. 820, 86 L. Ed.

1154; Amalgamated Utility Workers v. Consolidated

Edison Co., 309 U. S. 261, 60 S. Ct. 561, 84 L. Ed. 738.

Organization by citizens is a method of the demo-

cratic way of life and most helpful to the proper

functioning of our representative form of government.

It should be safeguarded and encouraged as a means

for citizens to discuss their problems together and to

bring them to the attention of public officers and

legislative bodies. Organizations are likewise help-

ful to bring public officers and employees together to

survey their work and suggest improvements in the

public service as well as in their own working condi-

tions. Our General Assembly has even provided by

statute for an organization of all trial and appellate

judges of this state to consider and discuss the work

of the courts and make recommendations for legisla-

tion. See Judicial Conference Act of 1943, Laws 1943,

a

p. 514, Mo. R. S. A. 2039.1-2039-8. Organizations of

other state, county and municipal officers are well

known and have long been recognized as serving a

useful purpose. Nevertheless, the organization and

activity in organizations of public officers and em-

ployees is subject to some regulation for the public

welfare. See United Public Workers v. Mitchell, 330

U. S. 75, 67 S. Ct. 556, 91 L. Ed. ...; Oklahoma v.

United States Civil Service Commission, 330 U. S.

127, 67 S. Ct. 544, 91 L. Ed. ...; King v. Priest, Mo.

Sup., 206 S. W. 2d 547, and cases therein cited. This

is because a public officer or employee, as a condition

of the terms of his public service, voluntarily gives

up such part of his rights as may be essential to the

public welfare or be required for the discipline of a

military or police organization.

‘Therefore, we start with the proposition that

there is nothing improper in the organization of

municipal employees into labor unions; and that no

new constitutional provisions were necessary to au-

thorize them.’’

The Missouri Supreme Court, however, in the case at

bar, has denied appellants the right to organize, which it

says is the right of public officers and employees generally,

on the grounds that such denial in the case of policemen

is necessary for the public welfare. We have referred

in section (f) of our statement as to the jurisdiction of

this court to the decisions of this court which hold that

the rights of freedom of speech, assembly and petition

guaranteed by the First and Fourteenth Amendments are

susceptible of restriction only to prevent grave and imme-

diate danger to interests which the state may lawfully

protect. The opinion of the Missouri Supreme Court in

the case at bar fails to point out what grave and imme-

diate danger to interests which the state may lawfully

ELEED THROUGH — POOR COPY

=

protect arises from membership of appellants in a union

such as the one involved in this case. The record discloses

that Local No. 549 does not have the right to strike, and

Article III of its Constitution, which can never be

amended, provides that the duties of members of the

union as members of the Police Force shall come first and

be superior to any obligation to the local, the American

Federation of State, County or Municipal Employees or

to any other organization, and that all members are

obliged at all times to perform their duties as members

of the police foree diligently « A faithfully and without

partiality or prejudice It soparent, therefore, that this

union does net , of an ordinary

labor unior ganization

of member ciatence #0

fhat its ° sranteed

to ther eace

ably a 0 heir

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kind of

this purpos ; pur

pose could not hy the union

which appellants hav

As we have stated, this court has never passed on the

constitutional questions involved in this case. Appellees

contend that the cases of United Publie Workers v. Miteh-

ell, 330 U. §. 75, 91 L. Ed. 509, 67 8. Ct. 556; Ex Parte

Curtis, 106 U. S. 371, 27 L. Ed. 232, 1 S. Ct. 381, and

United States v. Wurzbach, 280 U. S. 396, 74 L. Ed. 508,

50 S. Ct. 167, in which this court has upheld restrictions

on political activities of federal officers and employees, are

authority for lack of jurisdiction of this appeal. We sub-

mit, however, that these cases do not decide the questions

involved in the case at bar so that this court should de-

cline to take jurisdiction for lack of a substantial federal

question.

Appellants have cited a number of cases in which vari-

ous appellate courts have upheld restrictions on the right

of police, firemen and other public employees to become

members of labor unions. Many of these cases, however,

do not consider or pass on the constitutional questions

raised by appellants in this case. Thus, in Fraternal

Order of Police v. Harris, 306 Mich. 68, 10 N. W. (2d) 310,

no federal questions were raised so far as appears from

the opinion of the court. This was sufficient reason for

this court to deny certiorari. 321 U. S. 68, 88 L. Ed. 1076,

64 S. Ct. 781. Furthermore, the resolution of the Board

of Police Commissioners complained of in the Michigan

ease did not prohibit patrolmen from joining the plaintiff

organization, but only prohibited the taking in of asso-

ciate members who were not police, but members of the

general public, and required that membership in the union

be limited to members of the police department below

' the rank of sergeant.

Likewise in City of Jackson v. McLeod, 199 Miss. 676,

24 So. (2d) 319, certiorari denied 322 U. S. 863, 90 L. Ed.

1633, 66 S. Ct. 1368, the majority opinion of the court did

not discuss the constitutional questions raised in the case

at bar, and it appears that this court was justified in

denying certiorari, since no federal questions were passed

upon. Furthermore, there was a strong dissentine orinion

filed in this case by McGehee, J. The Jackson case is not

eT ees Eee ek | nomnnn nny

_—

in point on the facts either, as the court there laid great

stress on the pledge taken by members of the union in-

volved, whereby they pledged themselves ‘‘at all times to

bear true and faithful allegiance to the American Federa-

tion of State, County and Municipal Employees and to the

labor movement in general.’’ This pledge does not exist

in the case at bar. Members of Local 549, on the other

hand, are bound by Article III of the Constitution of the

local to place their duties as members of the police force

first, and their obligation as such members of the force

is superior to any obligation to the union or any other

organization.

The cases of Perez v. Board of Police Commissioners,

City of Los Angeles, 178 Pac. (2d) 537, and Congress of

Industrial Organizations v. City of Dallas, 198 S. W. (2d)

143, decided respectively by the District Court of Appeals,

Second District, Division 1, of California, and by the Court

of Civil Appeals of Texas, being decisions of intermediate

appellate courts of those states, are certainly not such

authorities as should foreclose this court from inquiring

into the federal questions raised herein by appellants.

Furthermore, the Dallas case is directly in conflict with

the decision of the Missouri Supreme Court in the case of

City of Springfield v. Clouse, supra, as the Court of Civil

Appeals of Texas in the Dallas case upheld an ordinance

which prohibited all officers and employees of the City of

Dallas from belonging to any labor union, whether affili-

ated with an outside organization or not, and thus denied

all such officers and employees their fundamental right to

organize which the Missouri Court said all citizens have,

including public officers and employees, subject to some

regulation for the public welfare.

Appellees in their statement of suggestions making

against the jurisdiction of this court cite Seattle High

School, Chapter No, 200, v. Sharples, 1930, 159 Wash. 424,

293 P, 994, 72 A, L, R, 1215; Frederick v. Owens, 1915, 35

Ohio Cir, Ct. R, 538; Hutchinson v. Magee, 1923, 278 Pa.

119, 122 A, 234; Carter v. Thompson, 1935, 164 Va. 312,

180 S, E. 410; McAuliffe v. Mayor of City of New Bedford,

155 Mass. 216, 29 N, E, 517, and Brownwell v. Russell, 76

Vt. 326, 57 A. 103. We are familiar with all these cases

and have read them carefully. In none of them were the

same constitutional questions raised and passed on as in

the case at bar. Consequently they are not such authori-

ties as should be even persuasive on the substantiality of

the federal questions raised in this appeal.

Appellants respectfully submit that Rule 23, Section

342 of the Police Manual, is ‘‘a statute of a state’’ within

the meaning of Sec. 237 (a) of the Judicial Code so that

this Court has jurisdiction to review the judgment of the

Supreme Court of Missouri upholding it; that the federal

questions raised are substantial, and that this Court should

accordingly take jurisdiction of this appeal.

Respectfully submitted,

S. D. FLANAGAN,

EK. D. FRANEY,

506 Olive Street,

St. Louis 1, Missouri,

Attorneys for Appellants,