# Petitioners Reply Brief — Douglas v. City of Jeannette > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0164%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief - **Published:** January 1, 1943 - **Citation:** 318 U.S. 749 ## Text e >: Lo UUPY saat 7 a - os ; #8 Rai aa) 9g ? &§ Dad ee res 7 poe | ome ww i Use - . ; Die RK. « % . SUPREME COURT OF THE UNITE § Ocroper Term $942. : : . & man wea . ° : ; : ° f : s b 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 b= : : : oe) 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 a. | 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 Cases Cyrep Kthing & 6 Co. v. gor aa | i ad (( Cc ‘A-7 .: 2S F. 2d 5 Ait oR i cenatak — a EA EE IE Binderup v. Pathe Exchange City of 5 cculeretiin V. Louisville ‘R. Co. a (C C A-6), 39 F. 2d x29 LE Ie TR oe ae ae ~ City of Toledo, v. Toledo Ry. & Light Co. * (CCAS), 259 BF: 450. et ee Columbus Ry. ‘Power & Light Co. v. Columbus at 260 U; 8, 300, 406 eB ... Aes Ae eee “164 UL. 378 apes ie tca tata pisosecons sigs tise veewitonnate RA General Investme nt Conv NewYork ( ‘ehtral Ry. Co. 271 U. S. 228 PA“) “OM PeT eT Tee Tee eee eee Mee seveceses Se ewesceseesas-see Hague v. C. I. O. 307 U. S..496 ........... Sa een mar os Jones. neo 316 U> S. 584, Jane &, 1942, vacated Fi eh, 15, 1943, and .reargument ordere | a Bae Ail Se eI eb Ne Ree ‘ = 1: " = ‘ ; rn ree ee _ . “ | ; 5° Piles . INDEX | sr ; Subsect INpex ae wes : SS PAGE : Biatenment °...........=.. ACERS Saka petldanskarpnmbcinolebek Oe ERE Se ea ae Oh CRE TR Tel SE ee : g Ph: tar 2 \ : ee . se ‘ ° an . ° noe \ “©. : S as . See ee a ee en, : ae ; ; a p i. Borden's Farm Prod: Co.."Ine. v. Baldwin - &’- 293 ix ‘ s. 104 cb ebeeemen peegerseeee Bt Sus winitsdenel eee <> Be 2 eS to’ Cases CITep - seers ide iy PAGE MNES ee SS Ber ; Lovering & Garrigues Co, y. Morrin : b 289 0-3. 103,:106, 108 ........................- EERE AS Wid nS 3 2 ate : : F i Manchester v. Leiby So! Gre Peder ea "Ts 9 E piidiretinn miancrteencnce nen a oo May Coal ‘& Grain Co. v. Kansas a oe (OR, 10 ny ee a ee Mosher v. City of Phoenix t ; + ei oS Rae as eae ORS I -Oney ‘¥.Oklahoma City us : 120 F. 2d 861 | sevtetendenead eee ee ee ee ee eee eee eee re fe reer ee ee eee) " NO S. Covington Ry. Co. v. Newport ; Per in to rae . .° Sritvres Crrep . > Judicial Code. PN Section’ 24 (1) teceerncecceeseessesee Et cee Semen area - +. United States Constitution 2 | nat 7 Amendment XIV ......... scan inhi Nealccsccarientatiigteials ae » 4 o ’ ’ ° . Se F ‘ ‘ : ) 4 © Y ‘ . < ¢ > e © . . ° . 2 . a = o eo. ‘ : ** a 13) . ° - 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 * 4 . - ° = . 4 - - 2 CITY OF JEANNETTE (Penns ‘ylvania), ‘a municipal corporation, and John M: O’CONNELLE, individually and as Mayor of City of: Jeannette (1 ennsylvania) - Respondents : . = @ ° ‘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 ] ~ 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 - ‘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 ® : : = > . ns : ; me ; + oad ‘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 : o ad “ _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 -4 Bs * 3 ; . ° * “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 t *. © # 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. - | & . , 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. | oY) SG. \ S Confidently wud resiiectfally submitted, a ‘. - 2 : " Sr ee ie : . te HAYDEN 'C. COVINGTON . | Adains St., Brooklyn, N.Y. Attorney for Petitioners - 2 , t wo : ine ® e | i --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386403_0164%3A4. Public record. Not legal advice.