Donovan v. City of Dallas

PETITIONER:Donovan
RESPONDENT:City of Dallas
LOCATION:Alabama State Capitol

DOCKET NO.: 264
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: Supreme Court of Texas

CITATION: 377 US 408 (1964)
ARGUED: Apr 22, 1964
DECIDED: Jun 08, 1964

Facts of the case

Question

Audio Transcription for Oral Argument – April 22, 1964 in Donovan v. City of Dallas

Earl Warren:

— 264, James P. Donovan et al., Petitioners, versus City of Dallas, et al.

Mr. Donovan.

James P. Donovan:

Mr. Chief Justice, Associate Justices, may it please the Court.

The case which we are about to argue has been variously described as a contempt case and in the Monday’s Washington Post under the calendar, it was described as a runaway construction case.

Actually, what we are here involved with is a question which I believe is of great importance federally because we are involved not so much with contempt but with the judicial power of the United States.

Briefly, how this case arose, in April of 1961, a group of people, small people, little people who live in the neighborhood of Love Field, a municipal airport in the City of Dallas, Texas, retained counsel in an effort to stop the expansion of that field and the construction of a new runway for the purpose of carrying jet traffic over their homes.

46 people were involved.We filed an action in the state court of Texas, the District Court, praying for an injunction against such construction.

As grounds for that injunction, we offered the Texas Constitution and its prohibition against seizure or damage to property without compensation in advance.

In the course of the temporary hearing, we discovered that he was proposed to support this and finance this new runway by the issue of revenue bonds.

There had been no elections so we amended our pleading and included that as a ground, an additional ground for an injunction.

In other words, the issuance, proposed issuance of revenue bonds without having submitted the proposition to an election as required by Texas law.

We had a motion for summary judgment which was granted against the plaintiffs.

We appealed to the Court of Civil Appeals which reviewed the case and rendered decisions supporting or sustaining the summary judgment.

We then applied for writ of error to a Texas Supreme Court which writ of error was denied, no reversible error.

We consider that the in re portion of the Supreme Court decision is important because of the rule in Texas which states that where a decision, where the Court, the Supreme Court is in accord with the result of the case, whether it’s not wholly satisfied that the Court of Civil Appeals has correctly declared the law, then it is a reversible refused, no reversible error decision.

In other words, the result is right but the court of the — the Supreme Court is not in agreement on all points of law mentioned in the opinion, which we believe is important in this case.

William J. Brennan, Jr.:

(Inaudible)

James P. Donovan:

It isn’t — no, we have a — an affirmance in the rules too where we have an affirmance that affirms the law stated in the decision of the lower court.

William J. Brennan, Jr.:

(Inaudible)

James P. Donovan:

It affirms the judgment but —

William J. Brennan, Jr.:

(Inaudible)

James P. Donovan:

Not for the reasons — not necessarily for the reason stated in the opinion of the lower court.

William J. Brennan, Jr.:

But then there is something else (Inaudible)

James P. Donovan:

Yes, there is a — there is another ruling error refused, period.

That’s — that’s the whole thing.

That means that the law and the decision and the judgment are correct.

William J. Brennan, Jr.:

Is that also (Inaudible)

James P. Donovan:

It — it is for practical fact.

It’s — it’s an affirmance.

But the type of affirmance is different.

James P. Donovan:

The error refused to be the same as if the Court said affirm.

Byron R. White:

(Inaudible)

James P. Donovan:

No, sir, there is no way.

So that — that — we were incidentally denied a motion for rehearing in the original decision of the Supreme Court which denied or affirmed the judgment rather, no reversible error.

Following that action, we applied to this Court for review on certiorari.

During the period of the pendency of the case in the Supreme Court of Texas, the case of Griggs against Allegheny County had been decided by this Court and the decision handed down and it was upon the basis of that case so we came here for relief.

However, that relief was refused.

We made a motion for rehearing and went back to Texas.

In the decision of the Court —

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir.

The class is, perhaps, important because in the original suit, the class was described as “The homeowners, families and individuals who live, work, reside and attend schools, churches and other community centers in the area embraced with the approach areas of planned runway, 1331 (l).

Actually, the type of class is important because of the fact that it was not a taxpayer’s action even though people that were involved in the suit were taxpayers.

Now, then in the interim, the action was pretty fast in this case.

The suit was filed April 3rd, summary judgment rendered July 16, 1961, certiorari denied by this Court in July of 1962.

And the motion for rehearing was denied in October 1962.

In the Court of Civil Appeals’ opinion, on the question of the injunction predicated on the proposed issue bonds the Court stated that we were not entitled to the injunction and that no election was required on those bonds.

However, on examination of the authority cited by the Court of Civil Appeals established that the case has cited held that under the law of Texas, it was not possible to enjoin a proposed issue of bonds that the remedy available to the taxpayer and the citizen was to go in to Court after the bonds had been issued.

The rule says that the only way that you can attack it is to go in and seek to enjoin the payment of bonds.

The idea behind the rule is stated in those cases that if a bond issue is void, then there is no damage to the taxpayer, therefore, an injunction of a proposed issue will not be granted.

So in that situation reviewing the law and having learn the considerable amount about the operation and the interim between the beginning of the suit and the determination of the appeals, 30 of the original plaintiffs in the Atkinson case which was the first suit, joined by another 92 plaintiffs who were not in the first suit, brought an action in federal court which we refer to here as the Brown case.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir, to straight — to straighten all on our suit, it was actually filed April 3rd, 1961.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

That’s right.

About the 10th of April, we had a temporary hearing, our hearing and an application of a temporary injunction.

Following that application, the city, which was the only defendant, moved for summary judgment.

The plaintiffs or petitioners then filed an amended complaint which was June 23rd, 1961.

James P. Donovan:

And the amended complaint is the one that we were heard on and the judgment was granted on.

Now, then, in the federal action, we had not only some 90 new plaintiffs who were not involved in the original Atkinson state suit but we also had a new group of defendants.

We have the original defendant, the only common defendant to the Atkinson and Brown case, the City of Dallas.

We join the Attorney General of the State of Texas because of his obligation under law to certify to the legal issuance of bonds.

We join the mayor, the city manager, the city auditor, treasurer, secretary and counsel of the City of Dallas because of their activities in connection with the issuance of bonds and a bond issue which was not in existence at the time of the institution of the original case.

We join — join the bond house which was handling the distribution sale of these bonds and we join the bond attorneys upon whose advised these bonds were being offered to the public.

So that we had a very wide difference in parties in the first action and in the — in the state action and then the action subsequently filed in the federal court.

Now, the federal action was —

Byron R. White:

The first — the first action is purportedly an applied action?

James P. Donovan:

Yes, sir.

Byron R. White:

Why — why would the plaintiffs in that case represent all the plaintiffs in the second case?

James P. Donovan:

Because they did not sue as taxpayers.

His second action was not a class action.

The first action in the state suit claim to represent not the taxpayers in the City of Dallas but to represent the homeowners, the families and the individuals who live, work, reside and attend schools —

Byron R. White:

There were no parties in the second suit of — were there parties in the second suit of and bond holders or other than — what was the class represented in the first action?

James P. Donovan:

This — the class represented in the first action were the homeowners, families and individuals who live, work, reside and attend schools, churches and other community centers in the area embraced within the approach areas of plan runaway of 13R-31L.

Byron R. White:

Who were the plaintiffs in the second?

James P. Donovan:

The plaintiffs in the second were 122 individuals who sought to represent themselves, all of whom were taxpayers.

Byron R. White:

Yes, but were they also homeowners and things in that area?

James P. Donovan:

Yes, sir, they live in the area —

Byron R. White:

None of — none of them was — at least one-half they were wearing was — the fact was — represented people that were representing the first action.

James P. Donovan:

They were a part of the class in the first action except that they were — our first action was not a taxpayer’s action and our first action did not attack any outstanding bonds because of the fact that there were no bond owners represented as defendants.

Byron R. White:

Now, if there was no difference between the first and the second suit other than the — than the identity of the defendants, would you — would you say that res judicata was not to be imposed?

James P. Donovan:

Yes, I would, Your Honor, because I believe that when a group of people — I mean these were not necessarily taxpayers, not first class.

We had every type of person —

Byron R. White:

We’re talk about defendants.

James P. Donovan:

About defendants.

Well, the only common defendant we have is the City of Dallas and —

Byron R. White:

Well, I know but —

James P. Donovan:

And I think that the addition of the —

Byron R. White:

Say the only case between the two — since — then — in — in the defendants.

Would you say that res judicata was there?

James P. Donovan:

I would say that still there would be no application of res judicata because there was no privity of parties.

We were not suing the same party or — nor were we’re suing persons who were in privity with that party.

In other words, we have attorneys and bond houses and everything in the second suit that we didn’t have in the first.

Now, the prayer for relief in the second suit may help answer your question on that point because in the second suit, we — we braced our action on the Civil Rights Law Title 42.

We also — we predicated that upon the denial of the election provided by statute, Article 46 (d) (9) of the statute to Texas.

We also pleaded that the construction of an airway — airport runway in violation of the United States statutes and regulations adopted pursuant thereto was a burden on interstate commerce.

And then further, we charge that the action of these defendants involving an issue which was not in existence at the time when the state suit was in violation of the Securities Exchange Act of the United States and was in violation of the postal laws because of the circulation of false and fraudulent statements relative to the sale of bonds.

Now —

Byron R. White:

None of these federal questions are raised in the first suit.

James P. Donovan:

None of those were raised in the first suit.

Byron R. White:

Any constitutional question?

James P. Donovan:

The constitutional question of the first suit was the seizure of property without — without compensation.

Byron R. White:

That was raised in the second?

James P. Donovan:

It’s also raised in the second suit merely for the purposes joined special interest.

Now, in addition to that fact, the original judgment was entered on July 16, 1961.

The federal action was not brought until September of 1962 and in the interim, there were considerable changes of fact on the basis of the pleadings under the federal rules which do not require you to — to plead evidence.

It is impractical and impossible to determine an issue as being a matter of fact submitted in a prior judgment because it’s pleading to plead your evidence and without particular reference to identical regulations and things you cannot say that a matter is res judicata.

Then he went — this suit was filed in the federal court on September 24th and on September 25th, the City of Dallas came in appearing for all defendants in the action and filed what they designated as a motion to advance.

In that pleading, they pleaded the Atkinson case as res judicata and asked for an immediate trial on the merits.

Apparently, they changed their mind about wanting to contest the merits of our suit because on October 6, they went to the Court State of Appeals, the Court of Civil Appeals of Texas and filed an application for what they call a writ of prohibition.

Now, that application was directed to all of the defendants — all of the petitioners in the Brown case and to the attorney for the Browns.

It did not join the federal judge, although under the Texas law, the normal practice under writ of prohibition is to direct that writ to a judge itself.

We were in federal court on October 10th after this application to the state court.

We went to the District Judge and we filed an application for injunction.

We said, “We have here of course before this Court, this Court has jurisdiction.

We want this Court to protect this jurisdiction and give us a trial before it.

We therefore asked that you enjoin the Court of Civil Appeals and the Supreme Court of Texas from any interference and that,” I beg your pardon, “and that action was only the Court of Civil Appeals from interfering with our federal suit.

We want a federal trial.”

James P. Donovan:

Strangely enough, the Court of Civil Appeals adopted the answer filed by the defendants in the Brown case and came in and said that the — the cause of the defendants was right even they were going to hear us within four days but they joined in the general answer filed and the Federal Judge turned down our application for injunction stating that she had confidence in the state court to do the right thing and that as a matter of comity, she let them continue.

We therefore went in the Court, the Court of Civil Appeals on this application for writ of prohibition.

We filed an application to disqualify the Court on the ground that it had intervened the federal action and prejudged the case.

That application was denied.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

No sir, not at this point.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

That’s later.

So that we went into the argument on the prohibition case, the Court heard us, there was a full hearing, we moot to deny the writ and at the conclusion of the hearing, the Court of Civil Appeals entered judgment in substance stating in their opinion that the filing of the federal suit did not interfere with the judgment in the original Atkinson case, which it’s agreed was a judgment of the Court of Civil Appeals.

Now, under Texas law, it is agreed that that judgment was final.

There was no appeal from —

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

That judgment was December 16, I believe.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

It’s in the record.

I don’t —

(Inaudible)

James P. Donovan:

I will check, Your Honor, I’ll find it over my hands right away.

In any event, that judgment became final and there was no more appeal to the Supreme Court.

Now, then, instead of accepting the judgment of the Court of Civil Appeals as the final judgment from which there was no appeal, the city then applied to the Supreme Court of Texas for a writ of mandamus.

A writ of mandamus to reverse the judgment, the final judgment from which there was no appellate jurisdiction in the Court of Civil Appeals and to order the attorney for the plaintiffs in the Brown case and all of those plaintiffs to drop their suits in federal court.

We argued on that writ of mandamus.

We pointed out to the Court that the only authority, legal authority in — in the Texas constitutional laws was for that Court to issue a mandamus in accordance with the principles agreeable to law or agreeable principles of law.

A final judgment involves judicial discretion and has been held in the 50 States of this union that a mandamus will not or issued order a discretionary act performed.

It may order the act performed but it will not dictate the manner in which the act shall be performed.

So that on that basis, there was no authority in the Court to issue such a writ.

(Inaudible)

James P. Donovan:

No, sir, I think that’s a pretty general question over the United States.

The — the statute itself says agreeable to principles of law.

(Inaudible) said law that your Court will not issue the mandamus.

James P. Donovan:

Yes, sir, that — in that sense it is.

It’s — it’s better state statute affecting jurisdiction which establishes the jurisdiction of the Court.

That — to that extent it is state law but I think the term agreeable to principles of law would involve the law of the United States of —

William J. Brennan, Jr.:

Yes, isn’t —

James P. Donovan:

— general acceptance.

William J. Brennan, Jr.:

Isn’t more than that as far as we’re concerned.

James P. Donovan:

I beg your pardon.

William J. Brennan, Jr.:

So far as this Court is concerned, whether or not your Supreme Court was right or not, if they interpreted the state statute where it concluded by whatever interpretation they gave the statute, aren’t they?

James P. Donovan:

I think not, Your Honor, when that interpretation applies in basis of — of federal court jurisdiction.

Because if, as a matter of law —

William J. Brennan, Jr.:

Well, that’s another question.

James P. Donovan:

It’s — it — this law —

William J. Brennan, Jr.:

That’s a different question.

James P. Donovan:

That’s right.

William J. Brennan, Jr.:

Whatever is the meaning of the statute that’s — your Supreme Court has declared, we have to take that meaning and then go on from there as to whether —

James P. Donovan:

I’m not wholly in accord with their position, Your Honor, for this reason that if a court can wholly ignore a state statute and render a decision contrary to common sense and reason, I don’t think this Court is bound by such an act because if it were, then we can — of due process can be avoided by —

William J. Brennan, Jr.:

That’s a different question, isn’t it?

But what the meaning of the Texas statute maybe is the province of the — your States Supreme Court declare.

We can’t give it a different meaning from that — which — that Court gave, can we?

James P. Donovan:

I believe that you can when it becomes such a distorted interpretation that it is not logical or reasonable.

In other words —

Byron R. White:

Well, this isn’t very important to your case anyway.

James P. Donovan:

No, sir, I think the big question —

Byron R. White:

(Voice Overlap) —

James P. Donovan:

— I think the big question is the violation of federal jurisdiction.

Now, then, after the hearing in the federal court — in the court — Supreme Court of Texas, the mandamus was conditionally issued.

In other words, the Court of Civil Appeals was in substance each ordered to issue whatever writs were necessary to stop us from continuing any further litigation in federal court.

Byron R. White:

What — what condition was that then?

James P. Donovan:

The condition being that — unless the lower court did issue these writs, they would issue the writ of mandamus.

In other words, they don’t issue their writ.

Byron R. White:

But what judgement that they — that — was that — the plaintiffs were entitled to stop you —

James P. Donovan:

That’s right.

Byron R. White:

— from going on?

And — and this is the judgment that has been brought here, isn’t it?

James P. Donovan:

Part of it, yes.

There’s — it involves further action.

We — that came as a result of this judgment.

Byron R. White:

Yes, but this — this is the —

James P. Donovan:

That’s the judgment of the Supreme Court —

Byron R. White:

— that’s the — the Supreme Court of Texas —

James P. Donovan:

— which is here for review.

Byron R. White:

— (Voice Overlap) to complain here.

James P. Donovan:

That’s right.

That’s — this is one of them.

In other words, they said, this — the city is entitled to its — its writ of prohibition.

In the judgment, they said that — I pointed out and I had pointed out an argument that there was no judge involved.

And the Supreme Court disposed of that by saying that’s a technical rule of law so we’ll just set it aside.

Well, it maybe technical but the legal effects are different.

Out of an injunction, you have to prove something irreparable damage and things like that.

On the writ of prohibition, you don’t have to do that, you just show the judge not doing his job.

So they ignored this technical rule of law.

Now, then —

Tom C. Clark:

You said that it’s a (Inaudible)

James P. Donovan:

Judges must follow that, Mr. Associate Justice Clark.

Following this Supreme Court judgment, the — a copy thereof was sent to the Court of Civil Appeals.

The Court of Civil Appeals, without notice to the petitioners, issued what they call a “writ of prohibition”.

Now, it’s clear on the record that —

Tom C. Clark:

Is that here?

James P. Donovan:

Yes, sir, that’s — that’s here before the Court, the so-called “writ of prohibition”.

Byron R. White:

Was that had been appealed?

James P. Donovan:

Yes, sir, that’s been appealed too.

Byron R. White:

Well, they have — would that — was that appeal in the Supreme Court of Texas —

James P. Donovan:

No.

No, it was not an appeal.

Byron R. White:

— to that — to that event?

James P. Donovan:

No, it was a final decision.

Byron R. White:

And so, do you brought that here too?

James P. Donovan:

That’s right, Your Honor.

Tom C. Clark:

It’s not of your business (Inaudible)

Byron R. White:

No, sir, but there is no appellate jurisdiction in the Supreme Court from action of the — of the Court of Civil Appeals.

Tom C. Clark:

Well, they just did what the Supreme Court told them.

James P. Donovan:

They did what the Supreme Court told them to do.

But there was no appellate jurisdiction by which we could appeal.

That — the original writ of prohibition was supposed to be final and that was reversed by a mandamus and then we had no place to go after the second one — second judgment.

The original judgment was reversed without notice to anybody.

The judge signed an order which was not tested by the clerk, which did not bear the seal of the clerk and which was not mailed — it was mailed out to everybody with no personal service.

That order was sweepy.

It prohibited the attorney and all the parties involved from bringing action anywhere and anyway interfering with the construction of this runway.

What was — what was the effect under your state law the pendency of the federal suit?

James P. Donovan:

Well, the —

From their appendix.

James P. Donovan:

They paid no attention to it.

They told us to — to stop prosecution of the federal suit.

No, what I mean, could the State if going to have — having a favorable judgment from the city, you’re going to have — having a favorable judgment in the state courts with the issuance of those bonds?

James P. Donovan:

I think they could.

As a matter of fact at page 8 of their brief, they showed that on the day the suit was filed, this federal suit was filed in federal court September 24th, 1962, that there was pending in this Court the motion for rehearing.

So they were going ahead with the sale on September 24th when this Court did not turn us down finally until October 12th, 1962.

So that my belief is that much of this is just to avoid a hearing on the merits because the facts in the record show that this argument brought harassments and delay does not apply.

They prove it themselves.

The action was not good to stop it, as far as I know they sold the bonds.

James P. Donovan:

But we didn’t stop there.

We went to the federal court again and we filed an application, an independent suit for injunction, that’s here on review too, again with the Federal District Judge saying judge that court — Supreme Court of Texas and the Court of Civil Appeals had tried to decide this lawsuit.

We are here before your Court, the defendants have submitted the jurisdiction.

We want a trial by the federal court, not the state courts and we ask you to enjoin these two courts from any further interference.

Now, the judge turned us down on temporary injunction and gave us a hearing, and we have that hearing in federal courts in the record and that the cause of the — of the hearing, the Court dismissed the case first on the ground that it was moot.

I’ve skipped the page here because going back to the Brown case, a minute this writ of prohibition was — was filed and signed by the state court, the city then went into federal court on the Brown action and moved for a hearing, for a motion to dismiss and filed a supplemental motion pointing out that we are under injunction from the state court.

The Court heard the Brown case first even though we were trying to get a temporary injunction against interference.

And from the clause of the hearing state that we were under prohibition against further prosecution and therefore, she was going to dismiss the case which he did.Now —

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, Judge Hughes.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

No, she stated as I read that record that that was the finding of the — of the Supreme Court of Texas.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir.

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

Yes, sir, we have called your attention to that Section which you — you say that she held it was res judicata.

She said the issues that are sought to be litigated in the case in the federal court have been held by the Supreme Court to be the same as the issues which have been litigated in the Atkinson case.

Well, now, that’s a holding by the Supreme Court of Texas.

We didn’t want a decision of the Supreme Court of Texas on this.

We wanted it from the federal court, which had jurisdiction of the parties and the subject matter.

In any event, following the dismissal of the Brown case, we ask for a hearing on the injunction suit.

It was granted to us.

On the injunction case, she had — the judge has stated that the case was moot and I called to her attention that it was not moot because we had that morning filed in appeal to the Circuit Court which made the case not moot and in any event she said, “Well, for the reason stated, I dismiss this suit.”

Then we were brought in an order to show cause which was served personally on each — on each of the parties here and upon the attorney as to why we shouldn’t be punish for contempt.

We had a postponement granted.

We had a two day hearing.

Now, our position was that the order was invalid under the original writ of prohibition was invalid because it wasn’t processed.

The rules quoted in my brief in the appendix show that no order or process out of the Court of Civil Appeals must bear the signature of the Chief Judge.

James P. Donovan:

It must bear the signature of the clerk and the seal of the Court.

And it must be serve personally by a — by a sheriff or constable.

All they did here, the record will show, was that the city took an order which had the judge’s signature on it.

They duplicated it, put it in envelopes and mailed it.

And that never has the proof of mailing is not even in the record.

At page 173, it’s — we noted that the Court of Civil Appeals said it would reserve its opinion.

They — they did reserve their opinion.

They never presented the proof of mailing again so that we were all convicted without any service or proof of service of an order without ever having an order introduced in the evidence.

And we contested the fact that there had been two orders.

Byron R. White:

This was criminal contempt, isn’t it?

James P. Donovan:

Criminal contempt is what it was.

Byron R. White:

(Voice Overlap) —

James P. Donovan:

I beg your pardon.

Byron R. White:

I thought — were you sentenced?

James P. Donovan:

Sentenced, I was sentenced and served 20 days.

And —

Arthur J. Goldberg:

Well, what’s the charge?

James P. Donovan:

The charge specifically against me was filing a suit, the injunction suit against the two courts and federal court.

(Inaudible)

James P. Donovan:

That was the only charge.

It was placed against me for contempt that I —

Tom C. Clark:

(Inaudible)

James P. Donovan:

Yes, sir, I appealed the Brown case dismissal and then after I was in jail — got out of jail, I was told that unless that suit was dismissed, I’d be put back in again.

Byron R. White:

Because this was also in violation of the writ of prohibition.

James P. Donovan:

That’s what they claim.

And we —

Byron R. White:

Did they dismiss it?

James P. Donovan:

They dismissed the appeal.

Byron R. White:

(Voice Overlap) you did, didn’t you?

James P. Donovan:

I had to reply for or I’ll stay in jail.

James P. Donovan:

And I filed an application to the District Court to dismiss the appeal on the ground that we were threatened with further imprisonment and fines unless we did do that and —

Byron R. White:

And they did dismiss it?

James P. Donovan:

Yes, sir.

We asked the Court to dismiss it.

Byron R. White:

So, that judgment has never been brought here.

James P. Donovan:

Well, I tried to bring it on certiorari but there’s no way that I can get it here.

The application for certiorari was refused but I do believe that we can get relief under 1651 of Title 28.

In that, if this Court finds that we were right and that there was a federal jurisdiction invasion here and that the orders which we violated were void, then I think to carry out the judgment of this Court, the — this Court could exercise a supervisory authority and then instruct the District Court to reinstate our suit.

Byron R. White:

You wouldn’t care if you got relief here.

All you have to — you wouldn’t need to resurrect the old so that you could file a new one.

James P. Donovan:

Well, I’m running to a roadblock again on the ground of res judicata because there is an order on record dismissing the original suit.

Byron R. White:

Well, that’s —

James P. Donovan:

It’s an order on the merits, it says.

Byron R. White:

If you got relief here, that’s what you mean very much of it.

James P. Donovan:

It might be pretty important.

Well, I should like to reserve the balance of my time for rebuttal.

Thank you.

Earl Warren:

Mr. Kucera.

H. P. Kucera:

May it please the Court.

First, I should like to correct some of the things that have been referred to and what this meaning of the judgment of the Court of Civil Appeals with reference to the Atkinson case and then let’s talk about whether or not this was a class suit or a taxpayer suit.

Counsel has stated over here that the state law of Texas requires a referendum on the matter of issues or revenue bonds.

I defer with that and the cases that I’ve cited to you here in our brief that in the revenue bond cases, under the Texas law and even on ad valorem taxation, there is no constitutional requirement whatsoever that that be a referendum.

However, the legislation did provide that.

About 1899, that — with reference to ad valorem tax bonds, their vote isn’t necessary by the taxpayers.

But there is none required on the revenue bonds.

They — keeps on doctrine over here and how that had been denied the civil rights of franchise.

Well, this is — since this statute doesn’t provide for a franchise, there was no civil right denied there.

And I think that question is whole of this side issue.

Now, then, the statement was made over here that the Court of Civil Appeals in Atkinson case held that the — that these plaintiffs or taxpayers did not have the right or as residence to contest the bond issue and that there was no provision in the law to contest bond illegally issued until they’re offered for payment.

With that, I disagree and I think those are in the brief.

H. P. Kucera:

I will support to my view on that.

Hugo L. Black:

Suppose you’re right on the law of Texas —

H. P. Kucera:

Sir?

Hugo L. Black:

— suppose you’re right on the law and that a man had no case in federal courts, is that the issue before us here?

H. P. Kucera:

Yes.

The question is the — if there really showed you this over here.

Hugo L. Black:

Well, I thought the real issue was whether Texas courts could enjoin litigants who are rightfully in federal courts pursuing their claim.

H. P. Kucera:

Well, that’s —

Hugo L. Black:

Or whether the lawyers can be put in jail for not dismissing a suit in the federal court.

H. P. Kucera:

On the ground that the — the matter had already been litigated, it — they are both —

Hugo L. Black:

On — on the ground — on one ground of which has the premises, I would suppose.

H. P. Kucera:

Well —

Hugo L. Black:

Can — can any man who filed a civil rights sue in Texas that — his civil rights, let’s forget this case, that his civil rights, can the state courts can get him into the Court and enjoin him from pursuing his suit in the federal court —

H. P. Kucera:

If the state —

Hugo L. Black:

— suppose the federal court passes on him?

H. P. Kucera:

Our position is this that since they submitted that question to the state court over here, this claim in the state court was the right of franchise, that it was denied the civil rights.

The Court has judged it against him.

Now, he sought to relitigate it again.

The real basic issue over here on —

Hugo L. Black:

The two courts there involved and the question of a man’s right to pursue a claim that he had certainly has in the federal court where the federal court has not dismissed it.

Is it — does your case stand up on this proposition, that the state courts of Texas have power under the Constitution, to call a litigant in and he was litigated in the federal — in its federal court?

So you either dismiss this or go to jail until you dismiss it, is that — you — you’re saying that power for the court of Texas?

H. P. Kucera:

My — my position in this case is this that he has submitted that question in the state court and it was adjudicated against him and this Court —

Hugo L. Black:

Suppose it had been, suppose he went into the federal court and claimed that it was wrong for violating his right or take a man in the civil rights where there’s more involved in it in this simple bond issue.

Is the federal — does your state court has the right to take litigants out of the federal court and power under the Constitution and put their lawyers in jail if they do not dismiss (Voice Overlap) —

H. P. Kucera:

He exercise is right, Your Honor, by asking for a certiorari to have the judgment of Texas court reviewed by this Court.

And this Court denied here in the relief on that very same issue.

Hugo L. Black:

Yes, but what is it — he’s asked to release here on the ground of what’s going on there, hadn’t he?

You — he had to dismiss his case.

They’ve made him dismiss this case.

H. P. Kucera:

Because of the — the fact that he has been litigated otherwise he — there was —

Hugo L. Black:

Well, that’s right because — because the state —

H. P. Kucera:

— a litigation somewhere in those — somewhere.

Hugo L. Black:

— the state court says now that it has the right to determine whether each are gone in the federal court which it can enforce by putting a lawyer in the federal courts litigant in jail either him or as — well, you — it pursues.

Do you defend that as the right of Texas court?

H. P. Kucera:

Yes.

This is a — this a peculiar case in this sense, that the mere filing of the lawsuit over (Inaudible) the bond issued destroys the efficacy of the state judgment.

The Supreme Court of Texas, counsel has misstated though I let go again the proposition that we could have sold those bonds.

The Supreme Court of Texas in this very case solely stated, that these bonds could not be sold, that regardless how frivolous a lawsuit may be filed immediately, the sale of the bonds to which the city expect to of those related funds, it would reach to build their own way was equivalent to an injunction which the Court had decided he was not entitled to.

Hugo L. Black:

What you are saying as I understand it, when a man — when the state court thinks a man is barred by formal adjudication, he files a suit in the federal courts that the state court is the one that has the right to determine that question and he — he doesn’t — he has no right in the federal court at all which the state court paid enjoined him for — from pursuing.

H. P. Kucera:

Well, he certainly again that it would never be in to litigation.

Take the case of Princess —

Hugo L. Black:

Well, it might be.

The federal court says it’s not interminable.

H. P. Kucera:

Well, we think it is allowed because it’s almost four years but still — still arguing by the one that has started in —

Hugo L. Black:

But —

H. P. Kucera:

1861.

Hugo L. Black:

— basically, this question, so far as I’m concerned unless you can show me differently, gets down to this.

Can the state court of Texas or any other court call in a litigant which tried to assert constitutional rights in the federal court, as this case pending, can the state court put him in jail either him or his lawyer, if he refuses to dismiss this case on the federal court?t

H. P. Kucera:

I am saying the law with reference to this case, they should be applied from the standpoint of what we were litigating over here.

As I stated —

Hugo L. Black:

But it — but —

H. P. Kucera:

— he had litigated a question on civil rights.

Hugo L. Black:

— but it’s raised not in the question of which you are litigating but it’s raised in question with the power of the Court or state court to put a lawyer representing a party and the federal court in jail if he doesn’t dismiss this case in the federal court.

H. P. Kucera:

Your Honor, in the case of Princess Lida against Thompson, same situation happened there.

There was a suit filed in the Common Pleas Court in Pennsylvania litigating over a thrust of matter.

When some proceeding — there is a certain stage in the state court.

One of the dissident fighters went to the federal court and sought to litigate the very same thing.

The state court of Pennsylvania issued a rule against these fighters to show cause why they should not be enjoined from prosecuting the case in the federal court.

The case proceeded on trial and that it did order them.

H. P. Kucera:

They joined the trial court and an appeal was taken to the Supreme Court of Pennsylvania which affirmed the injunction against the prosecution of the suit in the federal case — federal court.

And this Court, in the opinion by Justice Roberts, affirmed that judgment.

Now, they have filed out —

Hugo L. Black:

You — you are resting again on that point on what is the main issue on the Thompson.

H. P. Kucera:

The issue was this that these parties have headed them in court, litigating their problem that they have — with the courts and having, the first of page — jurisdiction — they have the right to proceed to or judgment is in that case.

There, the case arose on the Fifth District within the last two or three years while the litigant was litigating in the state courts in Florida.

He lost all the way through, then he went to Houston.

William O. Douglas:

That was a — the Thompson case was in rem, wasn’t it?

It was not a personam.

H. P. Kucera:

That’s correct, Your Honor.

But the — they also say — he has also says in there that the course of having competent — common jurisdiction, state and federal, that one — the Court can proceed irrespective to the other one until there is a judgment rendered which can then the final judgment.

Now, we had a final judgment in our case.

William O. Douglas:

It — it doesn’t say that.

I have it in front of me.

It says that at least until.

Hugo L. Black:

At least.

Well, the intimation is little stronger, Your Honor, in the — in the Kline case as in (Inaudible).

The — the Blanchard case from the Fifth Circuit, their writ was denied.

He went to Houston and sought to litigate the very same thing.

There was a plea, a motion filed which called attention of the trial courts of two things.

One, that the Florida Supreme Court had enjoined him from prosecuting the case in this — the federal court of Houston.

And second, the plea of res judicata.

The trial court sustained a plea of res judicata and dismissed the cause.

On appeal, the judgment was modified to the effect that the Court should not have pass upon the plea of res judicata but should have recognize the injunction issued by the Florida Supreme Court and dismiss the lawsuit on that ground and that was the judgment of the Circuit Court in that case.

The Court also say to the state that if the opinion or the judgment in the — of the Florida Supreme Court were not satisfactory to this party, that he — his remedy was to seek readdress in this Court by certiorari appeal which of the case maybe and not to — to litigate elsewhere.

Similarly in this case over here, when the Supreme Court of Texas order the Court of Civil Appeals to proceed with the enforcement of the judgment which it had rendered in the Atkinson case by one of our — writs were necessary, it was then moved to ask the state — of this Court, well, they didn’t do it.

They waited to 89th day to that — after all the contempt proceedings and the final debate the — the sentence was served.

So the point here is — over here, that you tried to go to the Federal District Court over here to get Judge Hughes to stop the Supreme Court of Texas from proceeding with the enforcement of his judgment.

Now, somewhere down the line, we got to have some order over here if — if they’re going to have a rule of law particularly in its sue in a case of this order.

If a person can ad — al infinitum proceed to throw a judgment — I mean a lawsuit against proposed bond issue which the Supreme Court of Texas is — cannot be sold while litigation is pending, then public improvement will stop from then on.

Hugo L. Black:

They of course, have little — said that time and time again.

And this is — this is the case that we’re involved here.

They were not trying to protect their homes over here as far that goes in the second suit because the Texas Supreme Court and under their Constitution, guarantees these people over here, if when — when they suffer damages that they will be paid.

We cannot go to Article 1, Section 17, confiscate or damage of property without legal responsibility.

But they use this device of — the second suit.

They’ve waited about two hours to file the second suit before we readvertise for the — for sale of the bonds and immediately, the bond issue was killed, so that — that’s the kind of lawsuit that we have over here.

One of the questions that I think bears some —

Byron R. White:

Could I ask you if — if you were right on (Inaudible) brought the suit, what would have been wrong if presenting to Judge Hughes your plea of res judicata and your motion to dismiss on the ground of res judicata can — base from the state court action, why wasn’t that the proper way of pursuing?

H. P. Kucera:

Your Honor, again, the delay over — of an appeal to the U.S. Circuit Court and a writ over here which it would take another year.

Here it held holding up public improvements.

And since the question was unquestionably decided and for the fact that the same question that would have been presented here, the validity of the bonds and the right to enjoin the construction as a damage under the Texas Constitution having been passed upon by this Court before —

Byron R. White:

Now — but you wouldn’t have been to anymore delay than you have been because here, your — your prohibition action, prohibition mandamus action was brought here and it was granted and here you are.

H. P. Kucera:

Well, that’s just the tragedy of the whole —

Your whole point is, I suppose, that the state court which was acting under its own citizen have got the right to prevent the frustration of a state judgment, fully litigated, whether the frustration takes place in the state court or federal court (Voice Overlap) —

H. P. Kucera:

That’s exactly the point, Your Honor.

Exactly the point.

Otherwise, there is no point if — to litigate if it’s going to be litigating every time the city wants to proceed to — with an improvement of this character because there will always be somebody or some visitor that would want to file a suit.

Could the — could I ask you this question?

H. P. Kucera:

Yes, sir.

Could the effect of the pendency of the federal suit, starting from the federal suit, the effect of that on initiated the bond issues, is that a matter of judicial law or —

H. P. Kucera:

Your Honor, that’s the whole —

— of the statute?

H. P. Kucera:

— (Inaudible) of the Supreme Court of Texas in the — in this very opinion which is by a way of review, that the moment, irregardless how frivolous a lawsuit is filed that took the bond issue, those bonds cannot be sold, the Texas law provides and requires that the Attorney General of State of Texas must certify as to the validity of those bonds and he is prohibited from so certifying so long as there is any character of litigation pending irregardless how frivolous it maybe.

Byron R. White:

Well, you just face the same thing that everybody else around the country, does it, in that regard?

H. P. Kucera:

Well —

Byron R. White:

People want to sue (Inaudible)

H. P. Kucera:

Perhaps that’s — that’s true but at the same time, there ought to be an end of litigation respect over here.

Now —

Tom C. Clark:

(Inaudible)

H. P. Kucera:

Exactly.

H. P. Kucera:

That is the moment it was —

Tom C. Clark:

(Inaudible)

H. P. Kucera:

The moment the suit is filed is just as effective of injunction.

Now, under the Texas —

Hugo L. Black:

What you — what you are saying then, particularly because it wants to adopt a law, providing the bond issues shall not be close — can’t be sold by the litigation going on, has thereby taken away from the federal courts their right to try a lawsuit so legitimate in the trial therein, can they have the issue determined?

H. P. Kucera:

No, that’s not —

Hugo L. Black:

Do you think the state of Texas (Voice Overlap) —

H. P. Kucera:

— the best — that’s not the question.

Hugo L. Black:

— on the other —

H. P. Kucera:

The Texas —

Hugo L. Black:

— state —

H. P. Kucera:

— the Texas —

Hugo L. Black:

— that’s the right to enjoin a federal court from proceedings brought in it?

H. P. Kucera:

The Texas Supreme Court holding this to the effect that a plea of res judicata is in lots of adequate remedy to — to deal with their situation of this sort.

Hugo L. Black:

Well, maybe, they might think that.

But the federal law might think that’s enough, in which control the federal law or the state law?

H. P. Kucera:

On — on this — this kind of situation, I think when it comes to construing whether or not the Texas Constitution guarantees these people compensation or whether they got a right of — pass a law in Texas in which it can authorize the city to issue bonds without a vote, I think that’s a local matter and I think incidentally that very same question I haven’t got the case over here but a three-judge federal court in the — Kentucky within the last six months so held that the question of federal franchises not in those identical statute and they cite the Walters (ph) case and the two or three cases supported it.

Hugo L. Black:

Why hasn’t — why isn’t the state court of Texas accomplish precisely what it would’ve accomplished, if it could’ve — it doesn’t enjoin the judge himself?

What (Voice Overlap) —

H. P. Kucera:

Well —

Hugo L. Black:

— are you claiming it’s because it’s done indirectly?

If the Court’s jurisdiction is out indirectly, they — they have a right to defeat the jurisdiction of the United States District Courts?

H. P. Kucera:

The comity of — between the jurisdictions of the federal estate has always been recognized principle but when a person submits himself to the jurisdiction of the state court in the enforcement of their judgement, he certainly is a subject to the — to the orders of that court.

Hugo L. Black:

Well, doesn’t a federal — doesn’t the citizen of the United States have a constitutional right at the end of the federal court?

H. P. Kucera:

If it started over there, yes, but he agreed he —

Hugo L. Black:

But you’ll have to be started there.

Suppose you want to act what was done in the state Court?

H. P. Kucera:

Well, he —

Hugo L. Black:

There are number of instances in which that has had to be done.

H. P. Kucera:

That’s — that’s true but at the same time there’s a regular remedy of appeal to — through certiorari to have the actions of the state court review it over here.

H. P. Kucera:

But he has exhausted that remedy and after the situation was over with, we were still stymying because every time we throw in a lawsuit, we — we were stopped.

Those are the — those are the — that’s the basic question.

Now, we’re raising over here the question over here about the irregularity of the writs in there was not served with the writ of prohibition.

The writ would demonstrates and shows that the writ was partially handed over to the attorney here by the Chief Justice of the court who issued it.

There is an admission over there and that the people got it.

There’s a long record of the hearing.

You — in here on the contempt proceedings that he met with these people as of the name of the places, that he analyzed the decisions and that he told them it is not worth to play for the writ.

Here was a valid order of the state court prohibiting the litigation.

Somebody is on the line and should be avoided based just exactly like was in the (Inaudible) case, in the United Mine Workers case and quite a few others.

On the question of the irregularity or alleged irregularity of the service over here, I think the decision in the (Inaudible) case by — Justice Harlan takes care of that.

There, the same question was raised to the effect of that he was not formally served with the interrogatories under which the — the contempt proceedings were based.

The Court answered while he was in Court.

He heard him and that’s all you need to know.

I object to the decision on that same thing or which we are cite here take care of that because here, they appeared, motion continues, they were granted 10 days leave and that’s 10 days weren’t asked to me.

They were individually called by name in the Court and told by the Chief Justice, “You can go ahead and purge yourself over here by dismissing the suit or obey the orders of the Court once you play here.”

26 of them so took — took that position.

Counsel had the keys to the jail in his pocket when he was commanded to dismiss the litigation over here to obey the orders of the Texas Supreme Court and the Court of Civil Appeals.

Potter Stewart:

Mr. Kucera, is the contempt judgment as such before — before us now?

H. P. Kucera:

Yes, it’s here too.

Potter Stewart:

The contempt judgment.

H. P. Kucera:

That’s right.

Yes, sir.

Potter Stewart:

Well —

H. P. Kucera:

And —

Potter Stewart:

— certiorari was granted to what judgment?

Can you tell me just (Voice Overlap)?

H. P. Kucera:

It was — it was to the judgment of the Supreme Court of Texas ordering the Court of Civil Appeals to enforce the judgment.

Potter Stewart:

Right.

H. P. Kucera:

And then, when the Court of Civil Appeals ordered — they issued a writ of prohibition directing these people to cease from further litigating this matter in to — in the federal court, they were — a judge give before contempt of court and that judgment to the way for review.

Potter Stewart:

So those two, any others?

H. P. Kucera:

No, sir.

We had applied for a review of certiorari to the dismissal of the two cases —

Potter Stewart:

By the federal court.

H. P. Kucera:

By the Federal District Court and the — this was expressly their review so that —

Potter Stewart:

They have been denied.

H. P. Kucera:

That’s denied, yes.

Byron R. White:

Well, Mr. — Mr. Kucera, is the — is the order of the Court of Appeals entered upon the mandate of the Supreme Court.

The Supreme Court ordered the Court of Appeals to issue the writ of prohibition.

The Court of Appeals issued the writ of prohibition.

H. P. Kucera:

That’s right.

Byron R. White:

It is that judgment.

H. P. Kucera:

Yes, it’s here — it’s here.

Now —

Byron R. White:

There are three.

H. P. Kucera:

The — yes.

Byron R. White:

There are three.

H. P. Kucera:

Now, that’s — well, one other point, the question that the Court of Civil Appeals set aside its formal judgment or —

Potter Stewart:

Yes.

H. P. Kucera:

— refusing to grant the writ of prohibition —

Byron R. White:

Yes.

H. P. Kucera:

— without notice.

Now, that is wholly besides the issue because this — this counsel and everyone of its partner were parties to the — to the writ of mandamus suit in the Supreme Court.

They appeared over there by counsel, briefs and everything else and they — when the court — there was nothing for a Court of Civil Appeals to do except to comply with the order of the Supreme Court of Texas.

Now, there are several decisions of the Texas Supreme Court which I didn’t bother this brief with, that there were no time and time again of the — of the inferior court judgments without — without telling them to do so.

They just say, “You will disregard it —

Potter Stewart:

Right.

H. P. Kucera:

— then you will proceed to enforce the judgment in this case.”

Potter Stewart:

Mr. Kucera, in the contempt proceedings, I understand that the punishments of — has — has all the fines been paid?

H. P. Kucera:

Yes, sir.

And the jail terms were served.

Potter Stewart:

And the jail terms were served?

H. P. Kucera:

That’s right.

And Your Honor, furthermore, on the —

Potter Stewart:

So why — why isn’t — is that moot or not, that judgment?

H. P. Kucera:

Well, I thought so.

It maybe it is.

Hugo L. Black:

Still standing, isn’t it, suppose he pursues that claim in the federal court now?

H. P. Kucera:

But what —

Hugo L. Black:

What — what the (Voice Overlap) —

H. P. Kucera:

I don’t know what — what move he might make as far as that goes but —

Hugo L. Black:

Well, what did —

H. P. Kucera:

— they didn’t raise the question of mootness over here but we did over the idea — did want to say this that the judgment of contempt now was framed that the — be given — this individual given 6 days who wished to comply in the — they define or protect its source.

26 of them took the option to — to purge themselves.

And Donovan himself was put in to jail subject to — for the order of the Court when he elected to stay there and serve out his time.

Hugo L. Black:

This man would’ve filed a new suit now, would he be in violation of the order of your court that we have authority?

H. P. Kucera:

If the Texas judgment means anything, he’s — he would be violating, yes.

Hugo L. Black:

Well, what I’m — all I’m asking you is not to argue the — whether it’s right or wrong, is that judgment still, as we have here before, still standing so that if he were now to file a new suit in the federal court, he’d be — he could be sent to jail for contempt again?

H. P. Kucera:

Yes, I think so.

Hugo L. Black:

That’s what I thought.

H. P. Kucera:

Going back once more to this question of — this is not a civil rights case it’s (Inaudible) case.

(Inaudible)

H. P. Kucera:

If — and most of the federal courts in the State Court of Texas have held that there’s no question of franchise there.

So — and similar to Kentucky federal courts so held, there is only one question over here, a question of harassment to stop the city from this improvement by the filing of the lawsuits.

Otherwise, there would be no point — he invokes the jurisdiction of the state courts and if he could’ve gotten in the federal court about that, I’m not going to pass on.

But the same question is this.

He again chose that and when he got through and in light of this issue, this starts — starts the other one.

Otherwise, there would be no end to the litigation of this kind.

This injunction order (Inaudible)

H. P. Kucera:

That’s —

(Inaudible)

H. P. Kucera:

No, sir, it was against the individual plaintiff just exactly like it was done in the Princess Lida-Thompson case from — from Pennsylvania and —

Hugo L. Black:

But the Princess Lida, that’s not what this is on, I happen to be here when that was decided, I’ve just reread it.

It — I — it practically has no value on this.

But —

H. P. Kucera:

Well, if they did is —

Hugo L. Black:

— instead the truth in personam but we did different that this was administration and the Court said that state over company.

H. P. Kucera:

It’s in line with the Arkansas case as it goes a little further.

Hugo L. Black:

Which line?

H. P. Kucera:

Kline Construction Company case, that thing goes a little further.

It’s not in my brief at all.

Hugo L. Black:

Well, I’ll find it.

H. P. Kucera:

I — I think maybe I can find it in one of the briefs, Your Honors.

Hugo L. Black:

Well, you can furnish — furnished by this.

H. P. Kucera:

Yes, it’s 260 U.S. 226.

In closing, I just like to state over here that here, we have a valid outstanding order of the courts which ought to be obeyed.

There is no denial of compensation to these people before the tax.

The law protects those people.

And that under the law, as we see it, this has been nothing but accomplished indirectly — would’ve failed directly.

And having elected to pursue that for us, the judgment that were — were handed down in contempt or for it — it should be affirmed.

Hugo L. Black:

The Kline case (Inaudible) between to that — that’s the case where that was held at the federal courts that enjoined —

H. P. Kucera:

The state court.

Hugo L. Black:

That’s right.

H. P. Kucera:

But the question is —

Hugo L. Black:

Do you think the same rule applies?

H. P. Kucera:

The state court over —

Hugo L. Black:

The state court can do that to the federal courts in view of the Supremacy Clause.

H. P. Kucera:

Well, I thought there wasn’t any particular supremacy on the matter of where the jurisdiction is coextensive.

The one that acquires jurisdiction first, gather the right to proceed the judgment, putting personal in a — in a personal claim like that one before it does stay over here, that somewhere down the line, one can be a bar to the other one we — which renders final judgment in it.

Our provision has been right long over here that that’s not the case here.

Here, the — the mere filing of the suit, although we’re talking about — there were securities involved in the Princess Lida case, but here, we got a bond issue over here.

H. P. Kucera:

So what’s the difference between a state — citizen security and their private security when you go litigate it when the mere filing of the suit will destroy the ethic to seal of the first judgment, state judgment.

Earl Warren:

Mr. Donovan.

James P. Donovan:

If the Court please, on this question of the mere filing of a suit stopping sale bonds, counsel would like to call the Court’s attention that the bonds that under attack in the Brown case had already been solved.

There were no problem there.

What we were trying to do is stop the city from paying them on the ground that there had been no election.

In that point, counsel says there is no law in Texas requiring an election.

I don’t want to try the Brown case here.

I want to try it in the District Court, that’s where I was trying to try it.

But for this Court’s information, Article 46 (d) (9) in part reads for such purpose as your municipality may issue general or special obligation bonds, revenue bonds, the authority hereby given for the issuance of such bonds and levy and collection of taxes to be exercised in accordance with the provisions of Article 701.

That Article reads, “The bonds of the county or an incorporated city shall never be issued for any purpose unless the proposition for the issuance of bonds shall have been first submitted for qualified voters where property taxpayers of such counties, city and town.”

Now, in the Brown case, it’s our contention that this 1269j is an administrative provision, in other words, that specifies how the issuance is to be made after the authorization by the voters.

But that case, I hope some day to try in the court there, but this contention that this suit stopped the sale of bonds doesn’t even fit with their own brief, on page 8 of the brief.

It’s recited at the top of the page.

This Court, on June 25th 1962, denied a writ of certiorari.

On October 8th, 1962, a motion for rehearing was also denied.

This is as to the Atkinson case.

There was litigation pending.

Now, then, in the next paragraph, it says, “On September 24th, 1962, the day on which bids for the selling of airfield revenue bonds were to be open.”

In other words, they were — they say in their old briefs, they were selling the bonds while litigation is pending.

There is no statute in Texas that says that you can’t sell bonds when litigation is pending, it’s the same thing, it applies all over the United States that upon —

Can you — can you use the proceeds from the sellers?

James P. Donovan:

Yes, sir, there’s no prohibition against it.

It’s a matter that comes out in a sale of bonds.

All the buyers want you to say that there isn’t any litigation pending.

And there isn’t any statute, it’s submitted that there is no statute or any decision that says that that’s got to be —

Potter Stewart:

What did the — what did the Supreme Court of Texas mean when it says it?

James P. Donovan:

The Supreme Court of Texas, so far as I know, just was applying this rule as to — shows in the record in the Civil Appeals that the Court asked him about that.

Incidentally, Mr. Justice Goldberg in that judgment denying prohibitions, October 24, 1962, Record 10 and the writ was issued, alleged to be issued, April 16, 1963 at page 78.

But in the — in — that question was specifically raised and appears in the argument before the Court of Appeals as to whether this was a statutory prohibition against sale while there was litigation pending.

And counsel answered to the Court there that no — finally, it was just a matter they couldn’t sell —

Potter Stewart:

But you just couldn’t sell the bonds.

James P. Donovan:

That’s it.

That’s what they’re demonstrating.

Potter Stewart:

Yes.

James P. Donovan:

Now, the bonds that I — I didn’t have any bonds in the first suit.

I was looking there for an issue to commonwealth, so I couldn’t litigate anything.

I had no bond voters.

In the second suit, I had some seven outstanding issues of bonds which had been sold.

And all I asked for there was an injunction against the payment.

Now, I do have, I admit, certain pleadings in the second suit that appear to be identical with the first.

But let’s conceive that they are.

Does that give the state court to right to throw up the whole federal suit?

Just because one possible issue was tried in the Atkinson case and decided?Our contention is that none were tried.

But even though it be true that there was one issue that had, can they still tell us that you can’t have a federal court decide these other issues?

In other words, they’re saying, you give one lawsuit as a citizen when you finish that against the City of Dallas, you’re through.

We — we don’t think that’s correct.

Potter Stewart:

What’s happened to the — the Love Field, have they ever built a runway?

James P. Donovan:

The runway is under construction, everything is going along fine.

Money is being spent, presumably, the bonds have been sold.

Now, this — the question is still there.

If this whole thing could’ve been resolved on a time base — by having election, we there have about four.

Now, on the element of time coming up here, we’re — we had a motion available for summary judgment on October 6th, 1962.

The city didn’t want to gamble on it.

So they tried this indirect route to get us out of the federal court.

They could’ve made a motion for summary judgment before Judge Hughes.

We could’ve argued it.

We were ready.

We could’ve gone in the Circuit Court in this area and then up here.

We would’ve been here long before Dallas.

Potter Stewart:

It wasn’t — wasn’t there a motion to — to dismiss in the Federal District Court —

James P. Donovan:

Yes, but they find —

Potter Stewart:

— which was granted, wasn’t it?

James P. Donovan:

Not the original motion as I read the record, it was a supplemental motion which was based on our prohibition from suit.

Potter Stewart:

And that was granted by the District Court.

James P. Donovan:

That was granted and we were thrown out and then our appeal was —

Byron R. White:

(Inaudible)

James P. Donovan:

Well, I’m — I —

Byron R. White:

— a case that — that broke the suit?

James P. Donovan:

She discussed in — she discussed, Mr. Justice White, the matter at page 306 and a little prior in the record to this — for that portion was quoted here I’m referring to.

She had — instructed the city attorney to argue his supplemental motion.

She didn’t want to hear the first one.

And the supplemental motion was the allegations as to this writ of prohibition.

In — after her comments on — on the case, I believe and it’s my interpretation and was at that time, that her decision — the meat of her decision lies in the last paragraph in which she said, “You and the litigants in this case have been prohibited from proceeding in this case and therefore, I dismissed the case as asked for by the city attorney’s office.”

Now, I believe that’s why she dismissed it.

Tom C. Clark:

She says so, in my opinion (Inaudible) issues need to be presented in the federal court.

All of the issues had been decided (Inaudible)

James P. Donovan:

That’s true.

Tom C. Clark:

That’s the affirmative position of the Chief Judge.

James P. Donovan:

Alright.

Let us go back —

Byron R. White:

This is a rule on the res — this is a ruling on the res judicata, wasn’t it?

James P. Donovan:

That is a ruling by her but not on anything presented.

Now, prior in the record, you will find that when they brought in this extraneous matter on a motion to dismiss, I asked the Court for permission to treat it as a motion for summary judgment and of our continuance to submit affidavits and that motion was denied.

Now, then, she didn’t have except our argument on the motion to dismiss as originally filed but rather on the motion to dismiss on the basis of the writ of prohibition.

Byron R. White:

Well, let’s assume — let’s assume that Judge Hughes had said, “Well, I know you’ve been — you’ve been enjoined and you’re not before this case.

But I’m going to — I think the federal court has jurisdiction to proceed with this case.

So consequently, I must deal with the first issue res judicata, I find that the suit was res judicata.”

James P. Donovan:

If she had done that and given us our rights under the rules, then I would say — I would’ve been out of court.

Byron R. White:

Well, I — you could’ve appealed.

James P. Donovan:

I could’ve appealed, yes.

Byron R. White:

And your appeal — and then —

James P. Donovan:

But —

Byron R. White:

— and you could’ve appealed this type of — into that — try to upset that her ruling of res judicata, your appeal could — was never perfected.

James P. Donovan:

Oh, yes, it was Your Honor.

Byron R. White:

Well, I mean it was perfected but I mean you couldn’t go forward because you had to dismiss it.

James P. Donovan:

Well, I either go dismiss it or go back to jail and 20 days was enough.

Byron R. White:

But even if Judge Hughes had ruled on res judicata, that’s not the end of the case, right?

James P. Donovan:

It would have been under the prohibition.

Byron R. White:

But wouldn’t it been under prohibition of it?

James P. Donovan:

Yes, because I would’ve been in jeopardy.

I couldn’t — I couldn’t go forward.

I did appeal but I was — I was threatened with jail if I didn’t stop.

Potter Stewart:

So even if Judge Hughes had done what Mr. Justice White suggest that she might have done, that is to say, “I know you’re under a writ of prohibition but nonetheless, it’s the federal court, you have a right to be here.

As far as I’m concerned, I’m going to decide on the merits and I decide its res judicata and therefore, dismiss your complaint,” then you still would have been in the same suit so to speak if — because you would have been prevented from taking your appeal and required to dismiss your appeal under the threat and impact of the contempt order by the Texas state courts, is that it?

James P. Donovan:

I would have been in exactly the same position.

My rights would’ve stopped.

Byron R. White:

You never could’ve gotten here anyway.

James P. Donovan:

I couldn’t get here —

Potter Stewart:

Right.

Byron R. White:

Except from jail.

Potter Stewart:

Right.

James P. Donovan:

That’s the only way I could.

Arthur J. Goldberg:

Mr. Donovan, do you think you were prohibited by the writ of prohibition?

I mean (Inaudible).

James P. Donovan:

No, sir, I don’t.

I don’t think I was prohibited by the writ of prohibition from bringing a suit in federal court to try and enjoin the state courts.

Careful reading of it contains no such prohibition and those are technical things.

Now, I would like to mention along that line, the counsel state that I had the key to my — to the jail in my pocket.

Well, I — I am on disagreement on that point.

And he also stated that people were allowed to purge themselves of contempt.

James P. Donovan:

Let me read from the judgment of the Court.

Hugo L. Black:

What page?

James P. Donovan:

At page 254 of the record and which is the conclusion after the Court had adjudicated everybody in contempt, it went on to say, “Respondents be and are hereby judged to be in contempt of this Court.

But punishment of each is a fine in the amount of $200 to be paid by each and everyone of them on or before the 27th day of May, 1963 at 5 o’clock in the afternoon at the clerk of this Court.

It is the further order judgment to the decree of this Court that upon failure of the said respondents to pay the fines and above assessed, within the time here and above specified.

Each of said respondents so failing shall be imprisoned in the County Jail of Dallas County, Texas without bail until such time as said respondent shall have purged himself or herself of said contempt by payment of the fine as here and assessed against him or her or until the further orders of this Court.”

Now, then, let’s get go on when to put me in jail.”

It is further ordered the judgment decreed by the Court that the respondent, James P. Donovan be and he is hereby adjudged to be in contempt of this Court and that his punishment be confinement in the County Jail of Dallas County, Texas without bail for a period of 20 consecutive days beginning on this date and that he’d be remanded forth with to the custody of the sheriff of Dallas County, Texas for the purpose of such confinement.”

Now, there is no opportunity to purge yourself there.

That’s a flat commitment for 20 days.

Potter Stewart:

Did you ask for a jury trial?

James P. Donovan:

No, sir, I did not.

Under the laws of Texas, I didn’t believe I was entitled to one.

And —

Byron R. White:

Do you — there’s something in the record here for — to indicate how and why you dismissed your appeal in the Court of Appeals?

James P. Donovan:

Yes, sir, there is an application filed by me in the Brown case with the United States District Court, which appears at 314 and 315 of the record.

314 is the petition to dismiss appeal where I made reference to the appeal taken and then I recited where some of the said appellants have been fined and their attorney jailed for 20 days for filing an injunction suit in the federal court against the Supreme Court of Texas in the said Court of Civil Appeals to test the validity of their orders restraining appellants for the prosecution of this suit.

And whereas the United States District Court for the Northern District of Texas has wholly failed to protect the jurisdiction of these appellants and has dismissed this in the affirmance of injunction suit brought to test the validity of the state court orders.

And whereas the attorney for defendant, City of Dallas and Chief Judge of the Court of Civil Appeals have threatened these appellants and their attorney with further prosecution for contempt resulting in additional fines and imprisonment, now, therefore, under the — the rest above stated appellants name and in those of appeal filed here and on May 16, respectfully request that the said appeal be dismissed.

Hugo L. Black:

And that’s the only reason the Court of Appeals have passed on?

James P. Donovan:

That’s right, Your Honor, because we were going back to jail if we didn’t — didn’t get the appeal out of there.

Tom C. Clark:

That is the court of contempt (Inaudible)

James P. Donovan:

I beg your pardon.

Tom C. Clark:

(Inaudible)

James P. Donovan:

But there was only one contempt here, Your Honor, one hearing on contempts.

Byron R. White:

This was after that.

James P. Donovan:

That’s right.

And that’s after I’d serve my time that this was done.

Tom C. Clark:

(Inaudible)

James P. Donovan:

Yes, sir.

Tom C. Clark:

(Inaudible)

James P. Donovan:

That’s right.

I was sent to jail on the 22nd.

Tom C. Clark:

(Inaudible)

James P. Donovan:

But the appeal was taken — was not dismissed while I was in jail.

This — this appeal was written on longhand and filed with the Court.

Tom C. Clark:

(Inaudible)

James P. Donovan:

But not the — not the appeal to the circuit court, Your Honor.

I think that was dismissed in June.

Arthur J. Goldberg:

June 14.

James P. Donovan:

June 14.

Tom C. Clark:

(Inaudible)

James P. Donovan:

So it’s after I got out of jail.

It’s after I’ve been in jail.

William J. Brennan, Jr.:

But the petition was also filed where the Court of Appeals has —

James P. Donovan:

I had —

William J. Brennan, Jr.:

— is it before the Court of Appeals after you had served the 20 days?

James P. Donovan:

No, I had — I had filed the notice of appeal —

William J. Brennan, Jr.:

Yes.

James P. Donovan:

— to the Circuit Court.

William J. Brennan, Jr.:

When did you file that petition in 314, dismissed in (Inaudible)

James P. Donovan:

That was filed after I got out of jail.

William J. Brennan, Jr.:

After you —

James P. Donovan:

After I got out of jail.

Tom C. Clark:

June 11th.

James P. Donovan:

That’s right.

I was —

Tom C. Clark:

(Voice Overlap) —

Potter Stewart:

The petition recites — excuse me.

James P. Donovan:

I got out on the 10th.

Tom C. Clark:

(Inaudible)

James P. Donovan:

And the — the petition was filed on the 11th.

Potter Stewart:

And recites that you had been jailed for 20 days.

James P. Donovan:

That’s right.

And I didn’t have the key to the jail.

They —

Potter Stewart:

No.

James P. Donovan:

— should have come to that order as I read it.

Arthur J. Goldberg:

You file —

James P. Donovan:

Now —

Arthur J. Goldberg:

— your notice of appeal on May 16th.

James P. Donovan:

No, I have — I have filed —

Arthur J. Goldberg:

You have filed the petition.

James P. Donovan:

That’s right.

William O. Douglas:

(Inaudible)

James P. Donovan:

I had filed the motion of appeal.

William O. Douglas:

(Inaudible)

James P. Donovan:

Yes, that’s right.

Now, then, on this question of whether or not I had been served personally by the Court with this order of prohibition while it’s not particularly, in my opinion, of greater importance here because I think it’s a secondary question.

I would like to call the attention of the Court at the record at page 201 where I had Mr. Bickley, an Assistant City Attorney on — on the stand or on this point.

Keeping in mind that we never had a — of — of writ that I was supposed to have violated or my people were supposed to have violated at anytime presented in evidence on this criminal trial.

No writ was ever presented.

But I was questioning on this point of whether I’d been served.

As to Mr. Bickley, I said, “Did you ever serve me with the laws of application to writ of prohibition?”

His toward — bottom of page to 201.

“No, because you admitted having been.”

Answer – “I don’t care why.”

Mr. Bickley given you and Chief Justice Dixon’s office that morning when it was handed to you and said, No service would be necessary.”

Question – “And that’s the order you were prosecuting this contempt proceeding on, is that right?”

Well, Mr. Bickley didn’t get the chance to answer, Mr. Kucera answered.

James P. Donovan:

He said, “Yes.”

And then Mr. Bickley answered, he said, “No, he wasn’t aware that was.”

And the Chief Justice interrupted saying, “Wait just a minute, Mr. Kucera, I heard you say yes and answer the question.

Now, you’re a — not a witness, you keep quite.”

Then Mr. Bickley answered again, “No, it is not that order Mr. Donovan.

It’s the order that was amended by the Court and then as I understand it, given to you.”

So I was never personally served with anyone.

William J. Brennan, Jr.:

Mr. Donovan, let me see if I get this, if — if you prevail and we set aside the Court of Appeals’ order of prohibition, is that all the relief that you need?

James P. Donovan:

No, I think it has to go beyond that.

I think that we’ve got to order the District Court for the Northern District of Texas to reinstate the Brown case.

Otherwise, if I file a new suit involving a —

William J. Brennan, Jr.:

How do we — how do we have any order of the Northern District of Texas before us?

James P. Donovan:

Well, I applied for certiorari but — after conference with the clerk, I’d guess that’s not within the certiorari rules.

But this Court, as I understand the law, has the power to supervise District Courts.

William J. Brennan, Jr.:

Well, you do but you don’t have any order of the District Court’s clerk, do you?

James P. Donovan:

Well, the notices were served on all of the parties to the proceeding.

Of course, the District Court was never a party to the state proceedings.

The only thing involved there was my federal court action because they didn’t —

Byron R. White:

What’ wrong — what’s wrong with the new suit in the District Court?

James P. Donovan:

Well, I’m afraid that we’ll run into a — a plea there of res judicata by reason of this order of dismissal.

William J. Brennan, Jr.:

Well, suppose — suppose —

Byron R. White:

What order of dismissal?

James P. Donovan:

Of the Brown case by Judge Hughes upon them, the one we’ve discussed about res judicata and the writ of prohibition in the grounds for dismissal.

Byron R. White:

I know but if this Court gives you relief I would think that — I would think the grounds for relief would pretty well illuminate the — that passible.

Well, in any event, Mr. Donovan, what — if we set aside the Texas order, would lead you to return to the District Court and make such application as necessary to reinstate the Brown suit, why isn’t that enough?

James P. Donovan:

I — I would be — I will settle for that.

I think that if this Court makes it clear that the state courts cannot interfere with the federal courts’ jurisdiction and that we are entitled to try our lawsuits, maybe we were wrong, I don’t’ know.

But I think under the law, we are entitled to have the benefit of a federal forum.

If we get that determined and once satisfied, then I hesitate — well, I doubt that the state courts would again try to put us back in jail or fine us if we go ahead to try and enforce our rights.

Hugo L. Black:

Suppose that when we wouldn’t reserve the (Inaudible)

James P. Donovan:

Well, if — if this Court won’t reverse, then I would say that the practice of laws become pretty hazardous because as it’s stated in the Central Bank case against Stevens here, a person is left in this situation and that was anticipated in that case in 1897, that where one jurisdiction ends with — interferes with another or it attempts to decide cases for it that the litigant is put in the position where either must abandon his rights or run the danger of punishment for contempt.

Now, that was the Court’s opinion there.

They anticipated the problem and I got into it.

And I got just what the judges there thought could happen.

And I — my argument now, I’ve been criticized here for — for my language.

Maybe my language does give picture as of your time.

But this Court of Civil Appeals took the travel to condemn me for describing the order of the Supreme Court, as not being worth the favor, it was written on.

Well, I don’t think that’s unlawyer-like conduct.

That’s, in my opinion, a speech that says what you’re trying to say.

Hugo L. Black:

(Inaudible)

James P. Donovan:

That’s correct, about all courts.

I was also — I was also —

(Inaudible)

James P. Donovan:

I — I (Inaudible) you I was strong in my speech.

I made my argument to the Court, not outside and I argued before my people and actually could the lawyer has not only the right to do that but the duty.

And I —

Potter Stewart:

Do you agree with some, Mr. Kucera, as to — with just — which judgments are before us now?

Some indication in your brief, perhaps, I misread it, but it gives the impression that the federal court judgments are before us in this case but they’re not, are they?

James P. Donovan:

Well, that’s my effort to get him before the Court —

Potter Stewart:

Well, but you’ve failed in that and there you denied certiorari, didn’t you?

James P. Donovan:

On certiorari.

Potter Stewart:

I mean we denied certiorari, didn’t we?

James P. Donovan:

The only point — the only reason those are in there, Your Honor, is because I believe that under —

Potter Stewart:

Give us a picture of what happened.

I understand.

James P. Donovan:

That’s part of it but then I also think that under 1651, for instance if you — if you granted judgment reversing the state court judgments, then I think under that to make your judgment fully effective under 1651, you would have a right to direct the lower court — lower federal court to reverse it here but it’s a long —

Potter Stewart:

Except that — except this case isn’t here, is it?

James P. Donovan:

It’s a long stretch.

I admit.

Potter Stewart:

So what judgments are before us?

Potter Stewart:

What —

James P. Donovan:

We have the Supreme Court of Texas judgment directing the Court of Civil Appeals to — to pray with us we’re going in before our federal court.

Potter Stewart:

Yes.

James P. Donovan:

We have the judgment of the Court of Civil Appeals issuing the alleged writ of prohibition.

Potter Stewart:

Yes.

James P. Donovan:

And we have the judgment of the Court of Civil Appeals in punishing all the individuals and the attorney for contempt.

Potter Stewart:

For contempt.

James P. Donovan:

So we have those judgments before us.

We can’t — I don’t believe legally attack and I may have some remedy in the lower court going back.

I might apply to the Court for reinstatement of the cause and possibly —

Potter Stewart:

That is to the Federal District Court?

James P. Donovan:

That’s right.

Potter Stewart:

Well, I suppose that if we — if this Court should decide that you are right, we would reverse those judgments of the state courts and then it would be clear that the Federal District Court should proceed on the merits of your cause unencumbered and uninfluenced by any — by any writ of prohibition or anything else by the state courts and then would decide your cause on the merits.

Perhaps on the merits, the District Court would decide very promptly that you were foreclosed by res judicata.

James P. Donovan:

They might well do that.

The only hand we might well hold and we were —

Potter Stewart:

And they might hold.

That’s right.

James P. Donovan:

But we would have a decision from the federal court.

Potter Stewart:

On the merits uninfluenced by any prohibition or — or overshadowing by the state courts of Texas.

James P. Donovan:

Correct.

Now, this one other point I would like to comment on and that is whether this judgment of contempt is moot, it is definitely not moot.

There are $9000 in fines in the hands of the Court that were paid by these people and I think that they’re entitled to get it back.

As far as my time in jail was concerned, I learned a lot and —

William J. Brennan, Jr.:

I don’t see how — you — you’re asking that we do something about getting the fine sum?

James P. Donovan:

Well, I think automatically, if these judgments of the Court of Civil Appeals which punished these people for contempt are reversed, the fines will be refunded to them.

William J. Brennan, Jr.:

It maybe but not — I thought you were suggesting we should direct (Voice Overlap) —

James P. Donovan:

Well, I’m asking — I’m asking him my brief that the Court reversed the judgment of the Court of Civil Appeals, fining and punishing these people for contempt and directed that the fines be remanded.

Byron R. White:

Well, what — what do —

Tom C. Clark:

Well, that — suppose that (Inaudible)

James P. Donovan:

Not yet.

I don’t believe, Your Honor.

Tom C. Clark:

(Inaudible)

James P. Donovan:

I don’t think it’s going to the state treasury.

William J. Brennan, Jr.:

We can’t give you 20 days back anyway.

James P. Donovan:

You can’t give you that.

That’s —

Byron R. White:

Well, what if this was (Inaudible) if we got — setting aside the contempt judgement anyway regardless of the validity of the order?

James P. Donovan:

Well, you have the authority and —

Byron R. White:

You not — only that if you happen to have violated the order, you still could have come up here feeling the same judgment you could feel now, the mandamus prohibition (Inaudible)

James P. Donovan:

I might have —

Byron R. White:

Do you think they can violate — you don’t need the violation orders.

James P. Donovan:

That’s — that’s a question, Your Honor, respectfully I submit that there are numerous cases where they say there’s no justiciable interest, you haven’t heard yet.

That’s what I was faced with.

In other word —

Byron R. White:

(Inaudible)

James P. Donovan:

If that happens I could come up —

Byron R. White:

(Inaudible) outstanding order against you to stop litigating with the federal court if you seal that order right up here just like (Voice Overlap) —

James P. Donovan:

That’s — that’s true, I can.

And then I’m faced with the possibility of the Court said, “You haven’t been heard yet.”

Therefore there’s —

William J. Brennan, Jr.:

But you could certainly raise that —

Byron R. White:

You may heard yet.

James P. Donovan:

That — that can happen.

William J. Brennan, Jr.:

What you’re asking, it seems to me, raises United Mine Workers questions and everything else.

I — I have some trouble with that.

James P. Donovan:

Well, what I — what I’m stating, if this order was void, as a lawyer, I was under —

William J. Brennan, Jr.:

Was it the Mine Workers?

James P. Donovan:

I beg your pardon?

William J. Brennan, Jr.:

The Mine Workers’ judgment — injunction was found in the Court of Appeals, wasn’t it?

William J. Brennan, Jr.:

And yet the fine based on violation of it was sustained too.

James P. Donovan:

No, no, that’s the important point because if this was void, then everything that was based on that void order is a violation of due process and the violation of our constitutional rights.

If they weren’t true, you can make a void —

Byron R. White:

Well, you suppose to be free just to make up your own mind and that’s the void order in violation (Inaudible).

James P. Donovan:

I think it’s not only free to do it, I think it’s a duty.

I think it’s a decision every lawyer has to make.

Byron R. White:

I know but you can bring — you can appeal, you can bring the case up here.

James P. Donovan:

Judge, I’ve been practicing 30 years and I’ve been up with these cases and I’ve — I’ve been told, “Well, you shouldn’t be here yet.

You haven’t been heard.

This is just paper.

How do you know?”

Going out there and try to do these things and then we’ve got a justiciable of question.

That’s a decision that’s got to be made by every lawyer in the United States everyday because you — if — besides that, this is an expensive proposition.

Hugo L. Black:

(Inaudible) appeal without being in the further complaint?

James P. Donovan:

Yes, I believe I could.

Hugo L. Black:

At that time.

James P. Donovan:

At that time but I didn’t have — I didn’t know that the courts are going to prohibit me.

I didn’t know they’re going to throw us in jail.

I didn’t know they’re going to stop us in federal court.

We have these opinions that it should be done but there was always a possibility they wouldn’t do it.

And the writs up here cost us $26,130 to print a record.

And I went to poor boy way.

I went to the District Court asking that Court to protect his jurisdiction instead of coming up here because we didn’t have that kind of money.

And who has struggled to get here now?

How far we would be got here and in jail?

But that’s the position we take on it that we — we are only trying to bail on, we aren’t making demonstrations.

Mr. Justice Black pointed out if this is good law, they can stop every civil rights suit in the nation by the simple procedures saying, “Well, there’s a class action been tried on this back there in 1915.

Everybody in that class is bound.

Therefore, you can’t go into federal court.”

Arthur J. Goldberg:

(Inaudible)

James P. Donovan:

No, sir, I’ve not — up to this point I haven’t had any complaint filed against me.

I haven’t been criticized by the bar neither of — ever been help by the bar, I have been standing alone.

And I have had some reaction in — in some of the courts both in Texas not at Texas about being an ex-convict but I pray I don’t have any shame or feeling about it.

But so far as the bar of State of Texas is concerned, no file — no charges have been filed against me.

Byron R. White:

Could this be the basis of (Inaudible)

James P. Donovan:

There was rumor of it while I was in jail but I — I don’t think that I’ve done anything on it during my arguments it’s been true to Court.

In fact, they have a letter from the judge from the Court of Civil Appeals recommended me on my — professional conduct 27 days before he send me to jail for 20.

And I don’t think reading the record, I would grant —

Potter Stewart:

(Inaudible)

Hugo L. Black:

(Voice Overlap) 27 days.

James P. Donovan:

I — I should have given (Inaudible) I guess at that point.

But I grant you, I will fight a lawyer, I fight for my people, I believe in the law and I’ll always have and I’ll fight high.

I don’t think that I did anything here that was illegal.

If my judgment was wrong, yes.

I maybe —

Tom C. Clark:

(Inaudible)

James P. Donovan:

No, sir.

Tom C. Clark:

(Inaudible)

James P. Donovan:

No.

Tom C. Clark:

(Inaudible)

James P. Donovan:

That’s right.

I’m a member of the bar in New York and Texas and also in the federal bars of Oklahoma and Arkansas and New York and Texas and two Circuit Courts and I’ve been working at that for 30 years.

But I had no charges filed against me but I am proud of my records and I’m very interested in getting it clear because I think that I fought for a protection of federal jurisdiction, which is a rare thing in these days and I got punished for it.

And I think I was right.

I don’t think there’s any question to what the States cannot interfere with the federal.

I respectfully ask this Court to reverse the thing and put us back in status quo and to establish once and for all that a lawyer has the right to go to federal court to find out whether he’s right or wrong without the States interfering.

If there are no further questions, I thank you very much I’m here.