Motion to Dismiss or Affirm — State of Illinois v. State of Indiana

MOTION FILED OCT 10 1950

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1950

No. 349

PUBLIC SERVICE COMPANY OF OKLAHOMA,

Appellant,

vs.

TOWN OF SKIATOORK, a Muwtcipat Corporation,

BOARD OF TRUSTEES OF THE TOWN OF SKIA-

TOOK, ET AL.

APPEAL FROM THE SUPREME COURT OF THE STATE OF OKLAHOMA

MOTION FOR LEAVE TO FILE STATEMENT OPPOS-

ING JURISDICTION, STATEMENT OPPOSING

JURISDICTION AND MOTION TO DISMISS OR

AFFIRM.

R. L. Davipson, Jr.,

James G. Davinson,

Counsel for Appellees.

INDEX

Sussect Iwpex

Motion for leave to file statement opposing jurisdic-

tion

Statement opposing jurisdiction

Motion to dismiss or affirm

Exhibit ‘‘A’’—Act of Congress of June 16, 1906

Exhibit ‘‘B’’—Title 11, O. S., 1941, See. 482

Exhibit ‘‘C’’—Title 11, O. S., 1941, See. 1042

Exhibit ‘‘D’’—Title 19, O. 8., 1941, See. 11

Taste or Cases Crrep

Allen Bradley Local v. Wisconsin Employment Re-

lations Board, 315 U.S. 740, 86 L. ed. 1154...

Jett Bros. Distilling Co. v. Carrollton, 252 U.S. 1, 64

L. ed. 421 _..

Kammerer v. Kroeger r, 299 U. S. 302, 81 L. ed. 253

Lynch v. People of Ne ~w York, ex rel. Pierson, 293

RR § SS ee ere oe

Parker v. McLain, 237 U. 8. 469, 59 L. ed. 1051...

Southern ypeade Co. v. Secheingl 249 U. S. 472, 63

148 Se ae ae eee ee

Utley v. City ‘of St. ‘Petersburg, Florida, 292 U. S.

106, 78 L. ed. 1155 ;

Zucht v. King, 260 U.S. 174, 67 L. ed. 194

Sratutes Crrep

Act of Congress of June 16, 1906, 34 U.S. Statutes at

Large, pp. 267-278, Section 21

Oklahoma Statutes Annotated:

Title 11:

Section 482 .

Section 1042

Title 19:

Section 11

—471

4,5

a

IN THE SUPREME COURT OF THE STATE

OF OKLAHOMA

No. 34,166

A. W. PALMER aysp PUBLIC SERVICE COMPANY

OF OKLAHOMA, a Corporation,

Appellants,

vs.

TOWN OF SKIATOOK, a Muwicipat Corporation, ef AL.,

Appellees

MOTION FOR LEAVE TO FILE STATEMENT OPPOS.

ING JURISDICTION OUT OF TIME

Come now the Town of Skiatook, a municipal corpora-

tion, the Board of Trustees of the Town of Skiatook, Ear!

E. Yeargain, J. Milton Patrick, Russell G. Jones, William

J. Supernaw, Frank Cochran, and the Exchange Bank of

Skiatook, a corporation, and respectfully move the court

that they be given and granted leave to file their state-

ment making against the jurisdiction of the Supreme Court

of the United States in the above styled appeal and their

motion to dismiss or affirm out of time.

In support of said motion it is respectfully shown as

follows:

(1) That appellants served upon counsel for appellees

their petition for the allowance of an appeal, assignment

| —

of errors, order allowing appeal, statement of jurisdictional

grounds, praecipe for transcript of record and citation on

the 24th day of August, 1950.

(2) That appellants failed and neglected to comply with

the rules of the Supreme Court of the United States, Rule

12, Paragraph 2(b), by failing and neglecting to serve upon

appellees or any one of them or their counsel a statement

directing attention to the provisions of Paragraph 3 of

Rule 12 as required by said Paragraph 2 of Rule 12.

(3) That thereafter and on the 26th day of September,

1950, appellants served counsel for appellees with state-

ment calling attention to Paragraph 3 of Rule 12 of the

United States Supreme Court Rules as required by the

provisions of Rule 12, Paragraph 2(b); that by reason of

appellants failure to comply with the provisions of Rule

12, Paragraph 2(b), appellees were not apprized in suffi-

cient time to file with the Clerk of the Court possessing

the record their statement disclosing matters or grounds

making against the jurisdiction of the Supreme Court of

the United States within the time allowed by Paragraph

3 of Rule 12.

(4) That equity and justice require that appellees be

given an opportunity to file their statement making against

the jurisdiction and that the rights of appellants will not

be prejudiced by the allowance and granting of this motion.

The statement making against the jurisdiction of the

Supreme Court of the United States, together with a

motion to dismiss or affirm, are hereto attached to be filed

in this cause upon the granting of leave as herein requested.

Respectfully submitted,

R. L. Davinson, Jr.,

James G. Davinson,

Attorneys for Appellees.

IN THE SUPREME COURT OF THE STATE

OF ORLAHOMA

No. 34,166

A. W. PALMER ayn PUBLIC SERVICE COMPANY

OF OKLAHOMA, a Corporation,

Appellants,

vs.

TOWN OF SKIATOOK, a Municrpat Corporation, Ef AL.,

Appellees

STATEMENT OPPOSING JURISDICTION

Come now the appellees with leave of court having been

first obtained and file this their statement of matter and

grounds making against the jurisdiction of the Supreme

Court of the United States as asserted by the appellants.

It is the contention of appellees that the Supreme Court

of the United States is without jurisdiction of this purported

appeal for the following reasons, to-wit:

(1) The decision of the Supreme Court of the State of

Oklahoma herein complained of does not draw in question

the validity of any statute of the State of Oklahoma on the

ground of its being repugnant to the Constitution, treaties

or laws of the United States. The record discloses that

appellants have not at any stage of the proceedings attacked

the validity of Title 11, OS Annotated, Sections 482 and

1042, and are raising the question of the validity of said

_-

Sections of the Statutes of the State of Oklahoma for the

first time on this attempted appeal. The mere objection to

an exercise of authority granted by a statute whose validity

is not attacked cannot be made the basis for review by

appeal.

Cases relied upon by appellees as making against the

jurisdiction are:

Jett Bros. Distilling Co. v. Carrollton, 252 U. S. 1, 64

L. Ed. 421;

Zucht v. King, 260 U.S. 174, 67 L. Ed. 194.

4

(2) The record discloses that no substantial federal

question is presented for review for the following reasons:

(a) The Act of Congress, June 16, 1906, 34 U. S.

Statutes at Large, pp. 267-278, Section 21, provides

that the Osage Indian Reservation should be erected

into a single county and that the boundaries of the

county should not be changed until the lands of the

Osage Indian Reservation had been allotted in sever-

alty and until such boundaries should be changed by

the Legislature of Oklahoma. The Statutes of the

State of Oklahoma, to-wit, 11 O. S. 1941, Sections 482

and 1042, which sections appellants contend are repug-

nant to the Act of Congress, June 16, 1906, 34 U. 8.

Statutes at Large, Section 21, prescribe the method

and manner and give the authority to municipal corpo-

rations in the State of Oklahoma to change, alter and

expand their corporate limits. It is apparent that the

boundary of a county is not synonymous and does not

include the corporate limits of a city or town. The text

of the pertinent portion of the Act of Congress, June

16, 1906, 34 Statutes at Large, pp. 267-278, Section 21;

Section 482 of Title 11 O. S. 1941; and Section 1042 of

Title 11 O. S. 1941, are appended hereto and marked

Exhibits ‘‘A’’, ‘‘B’’ and ‘‘C’’, respectively. The pro-

visions of the Statutes of the State of Oklahoma relat-

ing to the alteration and changing of county bound-

aries are contained in Title 19 O. S. 1941, Section 11,

5

ete., the provisions of Section 11 being appended

hereto and marked Exhibit ‘‘D’’. The federal ques-

tion attempted to be raised herein by appellants is

frivolous and devoid of merit for the reason that it is

based upon obviously false assumption, to-wit: That

a change in city or town boundaries is the same equiva-

lent to or tantamount to a change in county boundaries.

The cases relied upon by appellees making against

jurisdiction for the above grounds are: Southern

Pacific Co. v. Arizona, 249 U. S. 472, 63 L. Ed. 713.

Parker v. McLain, 237 U. 8. 469, 59 L. Ed. 1051. (b)

The question of the validity of the annexation of terri-

tory located in Osage County to the Town of Skiatook

originally incorporated wholly within Tulsa County,

Oklahoma, was raised by appellants in the trial of said

cause by Sub-paragraph 5 of Paragraph VIII of plain-

tiffs’ petition appearing at page 15 of the transcript

now being prepared for this appeal. The only mate-

rial allegation there made relates to the qualification

of electors who were permitted to vote upon the propo-

sition of issuing the bonds of the Town of Skiatook,

and since the qualification of electors in municipal

elections is a purely State question, the determination

by the Supreme Court of the State of Oklahoma in the

decision now being appealed from to the effect that

said annexations of territory in Osage County were

valid annexations and, therefore, the persons residing

in Ward 3 of the Town of Skiatook, said Ward being

located wholly within Osage County, were properly

entitled to vote at the election authorizing the issuance

of said bonds is not a decision involving a substantial

federal question.

Kammerer v. Kroeger, 299 U. S. 302, 81 L. Ed. 253.

(3) The Supreme Court of the State of Oklahoma in its

decision of May 23, 1950, decided said Cause No. 34,166

upon a non-federal ground which is in itself broad enough

to sustain the judgment even though it should be deter-

mined that there is also involved an independent federal

6

question in the case. The Supreme Court of Oklahoma held

that the annexing ordinances attacked by the appellants

(plaintiffs below) could not be attacked in a collateral pro-

ceeding. As stated by the trial judge (page 53 of the tran-

script being prepared for this appeal), ‘‘The proc edings

were under color of law and there was no legal impediment

to the annexation. Consequently, the Town has at least a

de facto existence and its existence cannot now be col-

laterally attacked.’’ The cases relied upon by appellees

are: United States v. Hasting, 296 U. S. 188, 80 L. Ed. 148;

Utley v. The City of St. Petersburg, Florida, 292 U. 8. 106,

78 L. Ed. 1155.

(4) The record in this appeal is devoid of any proof that

the lands of the Osage Indian Reservation have not been

allotted in severalty within the meaning of Act of Congress,

June 16, 1906, 34 U. S. Statutes at Large, Section 21. The

appellants did not introduce any testimony or evidence dis-

closing or tending to disclose the status of the lands of the

Osage Indian Reservation. It was incumbent upon the

plaintiffs below to sustain by proper proof all the necessary

facts to prove the allegations of their petition. The Su-

preme Court of the United States will not indulge in con-

jecture, implication or inference to read a federal question

into a cause where it does not appear from the record that

such a question was involved. It must stand conceded that,

if in truth and in fact the lands of the Osage Indian Tribe

have been allotted in severalty, the inhibitions contained

in the Act of Congress, June 16, 1906, 34 U. S. Statutes at

Large, Section 21, relating to the changing of the bound-

aries of Osage County would constitute no further impedi-

ment to such a change. The appellants (intervening plain-

tiff below) in failing to introduce any evidence as to the

status of the Osage Indian Tribal lands failed to sustain

the burden of proof and cannot now seek appeal to this

7

court where it would be necessary for the court to go out-

side of the record to establish the facts necessary to raise

a federal question, if any there be.

The decisions relied upon by appellees on the proposition

stated in this section are: Allen Bradley Local v. Wisconsin

Employment Relations Board, 315 U. 8. 740, 86 L. Ed. 1154;

Lynch v. People of New York, ex rel. Pierson, 293 U. S. 52,

79 L. Ed. 191.

R. L. Davinsoyn, Jr.,

James G. Davinson,

Attorneys for Appellees.

IN THE SUPREME COURT OF THE STATE

OF OALAHOMA

No, 34,166

A. W. PALMER anp PUBLIC SERVICE COMPANY OF

OKLAHOMA, a Corporation,

Appellants,

vs.

TOWN OF SKIATOOK, a Munictpat Corporation, ET AL.,

Appellees

MOTION TO DISMISS APPEAL OR IN THE

ALTERNATIVE TO AFFIRM

Come now the appellees above named and respectfully

move to dismiss the appeal herein on the ground:

(1) That the case presents no appealable decision of the

Supreme Court of the State of Oklahoma, but the right of

review, if any there be, is properly by writ of certiorari.

(2) The case presents no substantial federal question.

(3) The decision of the Supreme Court of Oklahoma is

supported by the determination of an independent ques-

tion non-federal in character even if there be an independ-

ent federal question in said case.

(4) The record fails to disclose the necessary jurisdic-

tional characteristics necessary for appeal.

Te Pt REN, Sop

10

And they further move, in the alternative, that, if the

motion to dismiss is not granted, that honorable court

affirm the decision of the Supreme Court of the State of

Oklahoma on the ground that the questions on which the

decision of this cause depends are so frivolous and unsub-

stantial as to need no further argument, all as appears in

the statement of grounds making against the jurisdiction

of the Supreme Court of the United States filed herewith.

R. L. Davipson, Jr.,

James G. Davipson,

Attorneys for Appellees.

11

EXHIBIT “A”

Act of Congress, June 16, 1906, Public Law 234, 34 US

Statutes at Large, pp. 267-286, Section 21, p. 277

‘*See. 21 That the constitutional convention may by ordi-

nance provide for the election of officers for a full State

government, including members of the legislature and five

Representatives to Congress, and shall constitute the Osage

Indian Reservation a separate county, and provide that it

shall remain a separate county until the lands in the Osage

Indian Reservation are allotted in severalty and until

changed by the legislature of Oklahoma, and designate the

county seat thereof, and shall provide rules and regulations

and define the manner of conducting the first election for

officers in said county. * * *”

EXHIBIT “B”

Tire 11, O. S. 1941, § 482.

Annexation On Petition Of Three-Fourths of Voters

And Property Owners—On petition in writing signed by

not less than three-fourths of the legal voters and by the

owners of not less then three-fourths of the (in value) of

the peoperty in any territory contiguous to any incorpo-

rated city or town and not embraced within the limits

thereof, the City Council of the city or the board of trustees

of the town, as the case may be, shall by ordinance annex

such territory to such city or town upon filing a copy of

such ordinance with an accurate map of the territory an-

nexed (duly certified by the mayor of the city or the presi-

dent of the board of trustees of the town), in the office of

the register of deeds of the county where the annexed terri-

tory or the greater portion of it is situated, and having the

same recorded therein. R. L. 1910, § 501.

12

EXHIBIT “C”

Trrie 11, O. S. 1941, § 1042

Addition Of Adjoining Plat—Whenever there shall be

lots laid off and platted adjoining such town, and a record

of the same is made in the register of deeds’ office of the

proper county, the trustees may by a resolution of their

board extend the boundary of such town so as to include

such lots; and the lots so annexed shall thereafter form a

part of such town and be within the jurisdiction thereof.

The trustees shall immediately thereafter file a copy of

such resolution, together with the plat and map of survey

defining the boundaries of such addition, in the office of the

register aforesaid. R. L. 1910, 4718.

EXHIBIT “D”

Titte 19, O. S. 1941, § 11

Vote by People—Tazxable Property—Area—Population

—Before any new counties shall be established, or any

coun‘y lines in this state shall be altered or changed, such

question shall first be submitted to a vote of the qualified

electors residing in the territory to be formed into such

new county or transferred to another county, and shall be

approved by the sixty per centum of the votes cast in each

particular territory sought to be taken from an existing

county in said election; provided, no new county shall be

formed of less than four hundred square miles taxable

area, nor with a population of less then fifteen thousand

people, nor with taxable wealth less than two and one-half

million dollars, as shown by the current tax rolls. Nor

shall any territory be taken from an existing county for

any purpose bringing the newly created lines of such

existing county nearer than ten miles to the county seat

thereof. Nor shall the taxable area, population or taxable

wealth of said existing county be reduced below that

required for a new county. Nor shall any territory, in any

moran

we mm —

pa

13

case, be transferred from one county to an existing county,

if, by such transfer of territory, the county from which the

territory to be taken will then be smaller in area than the

county to which the addition is made; provided, that when

the territory is to be transferred from one existing county

to either a new or an existing county, there must be sixty

per centum of the vote cast in such particular territory in

favor of the transfer, and, in case the transfer to be to an

existing county, the acceptance of such territory must first

be approved by a majority vote of the electors of said

county; provided, that any such election shall be governed

by the general election laws, when same are not in conflict

herewith, Laws 1910-11, ch. 40, p. 72, § 1.

(471)