Objection to Petition for Writ — Brasier v. City of Tulsa (No. 634)

FILED

FEB t 1960.

| ee R BROWNING. Clerk

ty The Sesame Court

E GI The United States :

; COPY... |; [ Preesomeme Coos

OCTOBER TERM, 1959

GEORGE H. BRASIER, ~ - - =... © Petitioner

° , vs. "Te . :

. CITY OF TULSA, OKLAHOMA “ -.- Respondent

Ee @

OBJECTION TO PETITION FOR WRIT OF CERTIORARI

he

Charles E. Norman

City Attorney

Luther P. Lane

Finis Smith

Darven L. Brown

Henry Kolbus

John W. Sublett

INDEX

STATEMENT OF CASE a Ba oe .

ARGUMENT

PROPOSITION No. 1:

* we

wt

The Municipality could not be guilty, as a matter of law, of a

conapiracy while oe in a.governmental capacity.

Authorities’

Ex parte- “Duncan, 179 Okl. 353, 65 P. 2d. 1015.

McGuire. v. Wilkerson, 22 Okl. Cr, 36, 209 P. 445.

174 OK1. 416, 50 P; 2d..712, Savage vy. City of Tulsa.

Bottone v. Lindsley, et ai., 170. Fed Rep. 2d. 705, 10th Cir.

-Agnew v. City’ of Compton, 239 F. 2d. 226 (Cal. 9th Cir.

77 S. Ct. 868, 1 L. ed. 910, 353 U:S. 969.

6. Cobb v. City of Malden, et al. 202 F. 2d. 701 (Mass., 1st Cir’)

Hewitt v. City of Jacksonville, or 5th Cir.) 188 F. 2d. 423.

72 S. Ct. 58, 96 L: ed. 631, 242 U.S. 835.

‘“«

—_~

- W ty

PROPOSITION No. 2. >

J

This Court .will ‘not pass on questions not poland or dealt with by -

the Court of Appeals. The question of the validity and constitu--

tionality of the ordinance was not raised and, therefore, was not

passed on by the Court of Appeals. -

- a hd Authorities

“1. Owens v. Union’ Paé. -R. Co., ‘Wash, 1943, 63 S. Ct. 1271, 319

‘U. .. 715, 87 L. Ed. 1683, a denied 65 S. Ct. 4 323

U. S. 740, 89 .L. Ed. 593.

2. Sonzinsky v. U S., Tl. 1937, 57S. Cts 554, 300, U.S. 506, 81 L.

Ed. 772. -. ; a ;

t

No wo Nw NW

No. 634 *

IX THE SUPREME COURT OF ‘THE UNITED STATES |

OCTOBER TERM, 1959 . )

_ GEORGE H."BRASIER, - =. = ‘+ Petitioner

7 on ; her

CITY OF ‘TULSA, OKLAHOMA —-_~——-___ Respondent

; ’

: ‘9 ; . ‘a

°

OBJECTION TO PETITION FOR WRIT OF CERTIORARI

_ SPATEM EN T

Petitioner pitched his right to recover the exhorbitant dam-.

ages prayed for upon the theory thatthe Civil’ Rights Acts were

applicable’ and that ‘the City was guilty of a conspiracy to de-

prive him of his automobile: The ¢ ‘ivil Rights Acts, in the m main,

have to do with intimidating jurors and: -keeping Negr oes from

voting. ~~

Petitioner did not challe ge the validity or constitutionalit y

of the ordinance, which i unded his automobile as a nuisance,

either in the Trial Court or’ the Court of Appeals. On the con-.

trary, he-affirmed in open court. at the tr iul—page 20 of the tran- .

script—that he did not question the constitutionality of-the ordi-

nanee, “He did likewise’ in his oral argument in the Court of

Appeals, as is set forth. inth: ’ Opinion of that ¢ ‘ourt. Petitianer

dealt in glitteri ing gener alities, made 1 reference to the. ‘Due Pfor-

_ ess’ Clausé of the Constitution, but. failed to show w her ein same

Was applic®ble to ‘him in: this Conspiracy suit for ‘damages.

The Trial Court required the City to file answers. to all inter-

togatories. The answers were clear and definite. -Thesé show

_ beyond cavil the violations of the ordinance, after warning, called

) i

—2—

for action | ae the part of the policeman in the = rect

his duty. Petitioner had plain, adequate and complete rem oi.

He elected not to defend in the Mynicipal Court. He elect ts

“not to put up $20.00 which is the maximum ‘bond on viol iti

of this kind in the ‘Municipal Court. He elected not to tine | a

_ replevin suit or a conversion suit. He elected not to challenge

| the validity of the ordinance in either State or Federal Court,

. but sought large money judgment because of an alleged won-

spiracy on the part of the’ Mayor and the Commission. acting

upon the ‘part of the City of Tulsa, to deprive him unlawfully

of his automobile. Nothing could have been farther from tho

truth. The City’ s ane Was so recognized and approved by

the Trial Court and the ‘Appellate Court. The petitioner stood

as any othér citizen, amenable to the Law and Order of the C ity

of Tuilsa in his unlawful use of his automobile. sc

. ele 7

ARGUMENT

| Proposition’ 1. The Municipality could not be guilty, as

a matter of law of a conspiracy while acting ina gov ernment:!

a

capacity. °

, Both the Trial Court and the Appellate Court have ruled

adversely to petitioner. The Wcisions so holding are:

1. Ex —r Duncan, 179 Okl. 353, "65. P. 24:1015

2. McGuire v. Wilkerson, 22 Oki. Cr. 36, 209 Pac 445

= 3. 174 Okt. 416, 50 P. 2d a Vv: City of Tulsa

; A

: §, -Rottone ¥. Lifldsley, ét al., 170- Fed. Rep. 2d 705.

s 2 Cir., This decision airs again by Court in its pres som

Opinion.

Agnew v. City of Compton, F. 2d 226 (Cal. Oth Cir)

eu

| ; At owe

/

ae 3 ;

f This case was taken to the Supreme Court of the United

States by a writ of certiorari, on the 13th day of May,

1957, same was denied. ¢ &. Ct. 868, 1 L. ed. 910, 353

U. S. 969.* The Civil Rights Acts were invoked in this’

case.

6. Cobb-v. City of Malden, et al., 202 F. 2d 701 (Mass., Ist

Cir,).

7. Hewitt v. City of* Jacksonville, (Fla., 5th Cir.) 188 F.

2d 423. Aw rit, of certiorari was denied.. 72S. Ct. 5

» 96 L. Ed. 631, 242 U. S.-835. ;

Proposition 2. This Court will not pass on questions not ~

raised or dealt with by the Court of Appeals. The question of

the validity and constitutionality of the ordinance Was not raised

and, therefore, was not passed on by the Court of Appeals.

Owens v. Uniom Pac. R. Co., Wash. 1943, 63 S. Ct. 1271, 319 .

US. 715, 87 L.Ed. 1683, certiorari denied 65 S. Ct. 57, 323 ULS.

740, 89 L.Ed. 593. :

Sonzinsky v. U. S., Ill. 1937, o7 S.Ct. 554, 300 U.S. SOS, 81°

L.Ed. 772.

ame”

Respondent therefore siiainiaie suggests that the Petition

herein for Writ o Certiorari should be denied.

as Respectfully submitted,

Charles:E. Norman

City Attorney

a

\ Luther P» Lane

‘ - Finis Smith

Darven L. Brown 4

Henry ’Kolbus_ ..

* John W. Sublett