Petitioners Reply Brief — Douglas v. City of Jeannette

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a a ROBERT *L. DOUGLAS, ALBERT -R. GUNDECKER,

E * FARE KALKBRENNER, CARROL CHRISTOPHER, °

€ ® \ICTOR SWANSON, NICHOLAS KODA, CHARLES

E SEEDERS, ROBERT L AM BORN and ROBERT

E : . 2 MURDOCK, Jr... _—-*- ———_

oe ae oP ee ae Se Petitioners eet

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é . v.

: — OF JEANNEETE (1 canis ania), a municipal

-_ orporation, and JOHN M, O°CONNEEL, individually and

e - as Ms iyor ot Cc itv “or Jeannette (I ennsylvania )

e Respondé nts

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| ON CERTIORARI

£0 THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE THIRD CIRCUIT ,

a "+> PETITIONERS’ REPLY .BRIEF

ff. : % ala Sih eA ae rears

~. HAYDEN ©. COVING'PON

. zi Attorne y for Petitioners

- Covington -& 1, Terupike Road Co. v. Sanford

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SUPREME COURT OF THE. UNITED STATES

October Tees

No. 450

a .

. ROBERT L. DOUGLAS, ALBERT R. GUNDECKER,

EARL KALKBRENNER, CARROL CHRISTOPHER,

VICTOR SWANSON, NICHOLAS KODA, CHARLES

SEDERS, ROBERT LAMBORN and ROBERT

MURDOCK, Jr. |

Petitioners J, ee

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CITY OF JEANNETTE (Penns ‘ylvania), ‘a municipal

corporation, and John M: O’CONNELLE, individually and

as Mayor of City of: Jeannette (1 ennsylvania) -

Respondents :

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‘ON CERTIORARI

"SO THE UNITED STATES CIRCUIT COURS® OF APPEALS ©

2 / FOR THE THIRD CIRCUIT

| PETITIONERS’ REPLY BRIEF

Jurisdiction of: the. district court. is questioned by re-

spondents. We subneit that the court will not consider

the objection raised because RO Cross petition was filed... |,

If the court does give consideration to said argument ~

against. the jurisdiction of ‘the court the n we submit that

it ig without merit, §- 9.

: , Allegations of the complaint were sufficient to invoke. -

“jurisdiction of the trial-court under Section 24 (14) ef

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the Judic val ‘Code because the: facts. ple ude d pe ed: that

_ the ordinante iW question had been enforced against peétt

tioners in such a manne’ as te abridge their right

* freedom of speech, press and w orship: of Almighty God

contrary’ to the ‘due process” clause of the I ‘ourteenth

Amendme nt. and the Civil Rights: Act. =

In support of this conte ntion we ater’ the entire dis-

elixsion on this ‘point by Judge Maris (R.. 150- 161). and

‘make the same a part hereof. - — : Pits

The identical -complaint containing the ‘same ‘allega-

_tions has been questioned , many times, held to state a

cause of action‘and to confer jurisdiction’ upon ‘the cist -

triet court. Circuit Courts of Appeals have so held twice. |

—~ Oney ¥. Oklahoma City, 120 FE. 2d .S861: Manchester- v.

. ) Letby; 17 F206. ora

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‘Similar allegations as to faet concerning state action

against the aight of individuals, together with the elaim

-that such action violated” the Fourteenth Amendment, .

have been ,held sufficient to confer jurisdiction’ upon the

district court. May ( ‘val & Grain Co. v. Aansas (CC A-8),

78. 2d 345; Borden's Farm Prod, Co., knec. v./Baldwii,

993 TT. S. 194: S. Covington. Ry. Co. x. Newport, DY

U.-S. 97: Corinaton & L. Turnpike, Road Cov. Sanford,

¥64. UL SS. 578: Binderup v. Pathe Exchange, 263 U.S.

291, 305. | eae cignd eas

From the faets alleged in the complaint it must appear

that. the claim is so wholly lacking in merit as to be

frivolous anit patently unsubstantial. It fnust manifestly

‘¢ be without color or merit. These factors ‘must appeal

‘ before the court ds warranted in holding that jariedietion

does not exist. In Columbus Ry. Power &. Ayght Cow

Columbus, 249 UL S. 399, 406, suil was to enjoin enforee-

ment of a city ordinance. In answering thé contention

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‘that the: trial court did -not -have jurisdiction this court /—

said: ~ ; ote oe ‘bi

‘*We are of Gpinion tkat there was, jurisdiction in’

the District Court to’ entertain the bill as it presented

‘questions arising under the Fourfeenth Amendment to’

‘the federal constitution not ‘so wholly lacking-in merit.

-as to afford. no basis of jurisdiction. Jurisdiction

"does not depend upon decision of the case, and should |

be entertained if the bill presents questions ef a char-_

acter giving the Ts the right to invoke ‘the judgment

ofa federal céurt.’ cage

: | Tin Mosher v, City of. Phoenix,*28 TUS: 2, 30, an

injunetion’ suit, this court said: |

“Weare ‘of the opinion that the allegations of the

bills of complaint, thai the city acting under color .of :

- state-authority was: violating the asserted private rights

secured by the ‘federal constitution presented a sub-

stantial! federal question, and that it was error of the

District Court: to refuse jurisdiction”.

In Lov ering cf Garrigues Co. _ Morri in, oR U.S. 103,

105, 1O8; an injuyetion suit, hig court in discussing. the

question said: 5

“Tf the-bill or the complaint sets forth a substantial -

claim, a Case is presented within the federal jurisdiction,

however the court, upon consideration, may decide as.

to legal Sufficienes* of the facts alleged to support the ,

‘elaim.”’ f : it :

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_In that ease the court held: there.was no jurisdiction be- |.

callse at the time the-suit was filed two cases had heen

decided adversely io complainant on the identical fatts

alleged.

At the time the complaint was filed in this case the

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“Jones? vy. Opelika cases (S16 U.S. 584, Tune 8, 1942, va-

cated Feb, Ld, 19435 and reargument ordered) had -not

bee ns aecided and at such the law was ndt settled an the

qtiestion against the’. petitioners. See Atkins «&. Co.

Dunw (CCA-7), 28 BF. 2d 0; City of Louisville | v. Louis-

ville R. Co. (CC A-6), 30 BF. 2d 822’; City of Toledo v.

Toledo Ry. f fag ( o, (CCA-6), 250 KY. 4503. and Ge 4

Investment Ca, Mew York Cevtral Ry. Co, 271 U.

22S. 7

It was MNNECeSSary that. there see any allegation ii -

reference to-amount of money invelved because jurisdie-

tion is not claimed: under. See tion 24 (1) but under Section

2+ (14)eanil the ¢ Civil Rights Act. T he court had -jurisdic-

tion on‘authority of Haque v. C. 1. 0., 307 U.S, 496:

“Due process of law’ means the, law of the land and |

is ndt confined to any particular type or sort af abridg-

ment o¥ action on, the-part of; the state. Since the Civil

Rights. Act is relied upon to confer jurisdiction all that

Was necessary tecallege was that the respondents aéted |

‘under color of -the ‘Ordinance, * More than this was alleged,

and ample facts showing that rights of freedom of press,

speech and avorship had heen abridged contrary to the

Fourteenth Amendment, so as to confer jurisdiction under

Section. 24 (14) of the Judie ‘ial Coda,

e If the doetrine contended fer ‘by respondents he sus-

tained, it. will be. inipossible: for a litigant to’ detefmine

when jurisliction exists, under the Jndfcial Code in the’

United States District Courts “where .state action -is

involved: ©. fan ck he as,

ns

Judge M: aris speaking for the court below SAYS:

‘For were we to hold that jeriediction exists anly

if the preven facts justify the conglusion that thert has

beers a deprivation. of liberty without’ due proéess of

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law it would necessarily follow that in every such case

the court weuld have to hear and decide the merits.

This would be a manifest absurdity.”*

The gxtended facts alleged in the complaint clearly .

fo showed that due process of law had been ‘violated. by

-wrengiy applying the ordinance. so as to abridge the rights

‘of fretdom of speech, press and worship guaranteed by

the first amendment which is made applicable against the

states by the fourteenth. - |

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it is respectfully submitted that the trial court had

jurisdiction to entertain the action and that the Circuit

Court of Appeals was correct in-so holding but was in —

error in declaring the ordinance did not abridge the

. rights of petitioners as applied.

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SG. \ S Confidently wud resiiectfally submitted,

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te HAYDEN 'C. COVINGTON .

| Adains St., Brooklyn, N.Y.

Attorney for Petitioners -

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