Fortson v. Toombs

PETITIONER:Fortson
RESPONDENT:Toombs
LOCATION:United States Post Office and Courthouse

DOCKET NO.: 300
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 379 US 621 (1965)
ARGUED: Nov 18, 1964 / Nov 19, 1964
DECIDED: Jan 18, 1965

Facts of the case

Question

  • Oral Argument – November 18, 1964
  • Audio Transcription for Oral Argument – November 18, 1964 in Fortson v. Toombs

    Audio Transcription for Oral Argument – November 19, 1964 in Fortson v. Toombs

    Earl Warren:

    Number 300 Ben W. Fortson, Jr., Secretary of State of Georgia, et al., appellants, versus Henry J. Toombs et al. Mr. Leverett you may continue your argument.

    E. Freeman Leverett:

    Mr. Chief Justice, and if it please the Court.

    Yesterday I had just begun discussing the question of mootness and it endeavored to distinguish the line of election cases relied upon by the appellees on the ground that they are related to situations where an injunction was sought with respect to a particular election only, that election had been held in the meantime and therefore there was nothing thereafter that any court could to do to offset what have been done.

    I would like to discuss one of two other cases since we did not have an opportunity to file our brief in opposition to the motion then I will endeavor to answer the question posed by Mr. Justice Goldberg.

    In J. I. Case Company versus National Labor Relations Board, 321 U.S. 332, the NLRB had issued an order which in effect prohibited the company from giving effect to individual contracts of employment that the company had secured with its employees prior to the time that a collective bargaining agent had been certified.

    The Court of Appeals rendered an enforcement order pending an appeal to this Court.

    The individual contracts expired under their own terms and a collective bargaining agreement was entered into between the certified agent and the company.

    This Court refused to dismiss on the ground that the case was not moot because in the terms of the Court of the continuing character of the obligation imposed by the order and we think that is analogous here because in both cases orders have been rendered, the immediate application of which has been somewhat removed but which nevertheless imposed a continuing obligation in the future and will govern conduct showed a state of facts have arise to come under them.

    [Inaudible] to vacate that on the interim?

    E. Freeman Leverett:

    No sir.

    They want to vacate it but not to reverse it or not to set it aside.

    In other words, they want it dismissed as moot which would not be an adjudication on the merits and which would still leave us with the prospect of a — an injunction hanging over, should the State undertake to resubmit the Constitution.

    I will discuss that in detail in momentarily.

    If I have an answer to your question at that time Mr. Justice Harlan I’ll be glad to endeavor to do so.

    Another case of some relevance is Leonard versus Earle which was a petition for mandamus to compel the issuance of an annual oyster license.

    The licensee had alleged that he had declined to agree to comply with one part of the requirements imposed by the licensing statute namely that he agreed to turn back 10% of all the oyster shells for reclamation and that he thought that was unConstitutional, pending an appeal the time for which the license was sought to expire, was an annual faith.

    This Court held nevertheless that the case was not moot in view of the fact that the proposed licensee represented that he had intended to remain in the oyster business and in that connection we have stated in our brief and I wish to reiterate it this time that the governor of Georgia is giving consideration to resubmitting the same Constitution either at the January 1965 session or at some special session.

    Another case, the Amalgamated Association versus Wisconsin Employment Relations Board, 340 U. S. 383 at 416, Mr. Justice Goldberg argued that case before this Court I recall.

    Now that case was where an injunction had been issued under the Wisconsin Anti-Strike Law relating to public utilities, pending the injunction compulsory arbitration procedures will begin and award was rendered.

    Pending an appeal to the Court, the arbitration award was carried out, a motion was made to dismiss on the ground that the case was moot and this Court held that the mere fact that an order may have been obeyed below does not moot the case because it is still continuing in nature.

    Another case is NLRB versus Greyhound Lines in 303 U S. 261 at page 271, that was a case where the NLRB had issued a cease and desist order directing the employer from to quit giving recognition to a company dominated union and pending the appeal on enforcement order, another union was certified and a collective bargaining agreement was entered into between the employer and the union and this Court held that the mere fact that the order had been obeyed and the fact that its need was not so much now as it was at one time did not moot the case.

    A case particularly significant, we think to this case is Southern Pacific Terminal Company versus Interstate Commerce Commission in 219 U. S. 498.

    In that case, the Interstate Commerce Commission had issued a cease and desist order directing the carrier from giving or prohibiting the carrier from giving undue preferences to a specified shipper from and after November the 15th and for a period of two years following.

    A suit was brought to set aside the order, and pending appeal that order expired of its own terms.

    This Court held however that the case was not moot and distinguished the line of election cases relied upon by the appellees on the same ground that I have undertaken to do so but this Court used some language that is very pertinent we think to our case and that is quote.

    “In the case at bar, the order of the Commission made to some extent the exact extent it is unnecessary to define, be the basis of future proceedings.

    But there is a broader consideration.

    The question usually involved in the orders of the Interstate Commerce Commission are continuing as are ours, especially those in the case at bar and those considerations ought not to be as they might be defeated by short term orders capable of repetition yet evading review and at one time the government and in another time the carrier have their rights determined by the Commission without a chance of redress.

    If all the experience in the field of reapportioning of a senate as any guide, we could well expect that if this Court should dismiss this appeal as being moot and under the Munsingwear case of course that would care whether the vacation of the — an order below we could well expect a suit for injunction to be instituted shortly before the 1966 General Election at which time the Constitution could be resubmitted.

    Under circumstances when this Court is in vacation we would have it no way of getting the determination of it.

    E. Freeman Leverett:

    We had the same thing in our senate reapportionment problem, we had suits filed on this countywide voting on multi-senate or multi-district counties and we had three cases in Fulton County and two in Chatham County and the cases in Fulton County were resolved against us and we didn’t have time to get an appeal on it.

    So, what we think is the effect of what is sought to be done here is not to dismiss a moot case, but to moot a case by dismissing and vacating and then putting us on a procedure called Sacro from which we cannot be extricated.

    And moreover, we submit that the interest of the State of Georgia is more urgent here for regardless of the fact that a dismissal for mootness would carry with it a vacating of the judgment below, it does not alter the fact that is obvious to all that that remains unreversed on the merits a holding a decision by a United States District Court in Atlanta to the effect that the legislature is not empowered to act.

    Now under those circumstances, the governor of Georgia is not in a position to contentiously resubmit or ask the legislature to reconsider.

    We have already spent a million dollars on this special session that was called primarily for the purpose of Constitutional revision to have the principal product of that session set aside and with that judicial “Sword of Damocles” hanging over his head the governor could not in the very nature of things assumed the responsibility of asking the General Assembly to resubmit and go through all of the expense and time knowing that there still is although no technical order outstanding that is an opinion which is necessarily going to be controlling as I would come to momentarily.

    This Court has gotten into this area by getting around or surmounting the obstacles of justiciability and lack of equity.

    But I think you must recognize that they are considerations present in this type of case which are not present in the ordinary traditional type of litigation.

    The effect of an unreversed opinion of a court or holding of the Court has a very definite, it’s very much alike to represent it as in to a political officers who are charged with making policies and they are certainly not going to run the risk again of being accused of spending all the time and money when they should have known that the Court has already ruled although technically there’s no order outstanding.

    Arthur J. Goldberg:

    Do you think that you’ve been through also of the – whether this Court vacated it now, is that it?

    E. Freeman Leverett:

    I do not think sir that the legislature of the government either one could draw that nicer distinction.

    Now, if you reverse it there’s no question then but to simply vacate it.

    It does not alter the fact that a very responsible and highly respected Federal Court in Georgia has made a ruling and it’s likely — it very likely as a matter of course to make the same ruling if the case is presented to them again and Mr. Justice Goldberg I come to the point I think that perhaps deals with the question that you posed yesterday.

    It’s important to note here that the District Court below did not enjoin the submission of the proposed Constitution because of some particular substantive provision that this Constitution either had or did not have it.

    The basis of the Court’s decision below was that any Constitution proposed as this one was by legislature which it had concededly was malapportioned.

    Ipso facto and with that regard to looking at its countent had such vitiating biases built into it that the Court would enjoin its submission.

    So consequently whether or not the 1965 General Assembly should change provisions is completely immaterial under the rationale of the Court’s opinion.

    Arthur J. Goldberg:

    Well that would have [Inaudible]

    E. Freeman Leverett:

    I’m coming to that too.

    Now, the Act that I have, the thought that I have sought to convey is that the practical effect of a dismissal for mootness and a vacating of the judgment below is no different than if you had simply affirmed the injunction and declared it non-reviewable because the only contingency upon which this case would be moot would be that the legislature either sometime in 1965 either had the regular 45-day session or a special call session would not undertake to resubmit.

    What I’m saying is that the procedure that is being sought to be in part here virtually assures that very thing coming about and it’s a situation of where a dismissal is sought to moot a case rather than dismissing a case that is in fact moot.

    Now there are three situations as I see it.

    Potter Stewart:

    But the legislature is going to reapportion.

    E. Freeman Leverett:

    Oh yes.

    Yes sir.

    Potter Stewart:

    And in within what period of time?

    E. Freeman Leverett:

    They’ve got to pass a legislation according to the wording of the Court order at the regular session next year and they’ve got — they can continue throughout 1965 but they will of necessity they have to have special elections, special primaries during 1965 for a reapportioned house to take off this fully one year term beginning in 1966 then we will have our regular biannual general election in November of 1966 for a two year term.

    Potter Stewart:

    Does reapportionment would take place and then new legislature will be — that the legislature under the reapportioned formula will be elected when, in 1965 or —

    E. Freeman Leverett:

    Be elected next year but to take office in 1966 for one year, so they’re waiting up (Voice Overlap)

    Potter Stewart:

    Yes —

    E. Freeman Leverett:

    – one term.

    Potter Stewart:

    And the — any Constitutional amendment submitted by such a reapportioned legislature of course wouldn’t be under the terms of the reasoning of the Court at all.

    E. Freeman Leverett:

    No sir, I think there is a little technicality there within that in that respect that I wish to discuss momentarily.

    That brings me to the merits of the case enjoining the submission of the proposed Constitution the District Court below relied upon both federal considerations as to malapportionment and state considerations as to the proper procedure under the State Constitution and I would — I feel little constrained to point out that we could take a literalistic interpretation of this Court decree and actually the legislature even though malapportioned in 1965 under the literal language could go ahead and resubmit the Constitution and when if you look at it from a purely literalistic standpoint we don’t — we wouldn’t need any relief.

    Well that’s because of the impreciseness of language used in the decree which is framed in terms of placing the Constitution on the ballot rather than the legislature’s passing it but we know what the Court means and the Court knows what it means and the appellees know what the Court means and we aren’t trying to play “cat and mouse.”

    We know that the whole thing, the whole thrust of the decree was the idea that has a malapportioned or a part of the malapportioned body undertaking to change the organic law of the State.

    Now at the outset we think it’s important to point out that this is not a case where state has consistently evaded its Constitutional obligations by series of dilatory tactics which when the Court felt necessary to take drastic action in order to fraud a state into complying with its Constitutionally imposed mandate.

    When the District Court below ruled in May 1962 that one house had to be reapportioned, Georgia – said in about four or five months when this Court ruled in the Westbury case that have a congressional districts had to be reapportioned, that was done in a month.

    Although in all fairness I think I should point out that the matter had been under consideration by the legislature for a couple of months before that.

    So this is not a case where drastic remedies are indicated in order to compel the doing of something which has been the case recently in Oklahoma and also in the State of Washington where the Courts conceded the drastic remedies that they were employing well for the purpose of parting some action.

    Secondly, this is not a case as I have previously pointed out where the Constitution has been enjoined because of some substantive provision that’s contained in it.

    The Court below was simply ruling that any Constitution has a conclusively presumed the rule of substantive law is defective if it’s submitted by a malapportioned body.

    The basic issue then comes down to this.

    In the June 15th decisions from the six states, this Court has recognized that in many instances there will be situations where a malapportioned legislature nevertheless would be committed to, — permitted to continue for a period of time of pending compliance.

    The question there is to what extent during that interim period is a Court empowered to delimit the normal processes of legislation and normal functions of the legislature, Constitutional amendment with some respects being not considered legislation.

    Potter Stewart:

    But you have an argument either broader than that I should think this Constitutional amendment would not and could not become effective unless it’s approved by a majority of the voters in the state, isn’t that —

    E. Freeman Leverett:

    That is correct so we don’t deal with that.

    Potter Stewart:

    Now, my point is this is not a legislative function that we’re talking about.

    E. Freeman Leverett:

    That’s right.

    The legislative function was complete here.

    The function of the legislature was complete at the time the Court order was actually signed in this case.

    The motion for further relief was filed while the General Assembly was considering it but it didn’t pray anything with respect to the Constitution.

    That was decided by the District Court.

    Potter Stewart:

    And I suppose the — a state could provide that Constitutional amendments can be proposed by a small group of voters signing a petition —

    E. Freeman Leverett:

    That’s correct sir.

    Potter Stewart:

    Or even by a President of the State University.

    E. Freeman Leverett:

    That’s right sir.

    Potter Stewart:

    But if they’re not going to be enacted until they’re approved by a majority of the voters of the State I — it seems to me that this submission is hardly – is not a legislative function at all.

    E. Freeman Leverett:

    That is the holding of some courts.

    Of course we are not presently under an injunction.

    Potter Stewart:

    Because it mean that argument could be made.

    E. Freeman Leverett:

    That we have made that in our brief and I plan to touch on that momentarily.

    Now, it seems to me that the procedure that has been employed here does not alleviate a system of poor representation.

    It substitutes no representation for admittedly some representation.

    Stated differently, all the normal processes of state government to be hamstrung is the state to be practically put in a receivership pending the spirit of reapportion and more important than that it seems to me that we come down to the crux of it, assuming that it should what type of question is that, is it a policy of the question as to whether or not the legislature should be restrained in any particular area whether it relate to the Senate say passing on confirmations of nominations made by the governor, or the passing of certain legislation and making them certain appointments of a legislature — a few opposition to have a state government.

    Those are policy of the questions which themselves should be made by either the people or by some representative body.

    That brings in to focus the — to the rationale relied upon by the appellees.

    They place a reliance upon a Central Kentucky and Natural Gas Company versus Railroad Commission which stands for the proposition that a Federal Court can as a means of protecting the public interest pending compliance with its decrees impose conditions as the price of the lake or as the price of the certain relief that they are granted but its interesting to note that the case itself although recognizing that that principle existed held that the application of it in that case was not permissible because it was an effort in effect by the Court to invade the province of the legislature.

    The Youth State Utility Commission had issued a 45 cents per thousand feet rate for natural gas.

    A suit was brought in Federal Court attacking that is being confiscatory under due process.

    The District Court agreed and said we will issue an injunction on condition that you agree to refund ten cents of the 60-cent rate that you have yet to have been charged.

    The case came to this Court.

    This Court declared that while that rule was recognized that this was an effort by the District Court itself to write a rate which was a purely legislative function and that the jurisdiction had limitations inhered in the nature of the system which prevented the court from undertaking to do that.

    Now, ever since the dictum in Mississippi versus Johnson in which District Court refused to permit the State of Mississippi to file an original bill attacking the enforcement of the reconstruction acts by President Johnson.

    It’s been has been very well settled that courts will not enjoin legislative functions.

    It was a dictum in that case, but in the later case of New Orleans Water Works case on 188 — 164 U. S. 471 this Court enunciated in clear language the proposition that courts would not enjoin legislative functions.

    The McCord case involving an effort to enjoin the making of rates while the rate-making process was going on, carried that further.

    Now these things come down with this.

    None of these cases have delineated very clearly the rationale behind the rule that courts do not enjoin legislative processes, but Mr. Justice Harlan’s decision in the New Orleans Water Works case referred to the mischievous consequences that would ensue and mentioned separation of powers.

    I think it comes down to this that separation of powers considerations its concept of justiciable controversy the fact that the legislative process might breakdown of its own accord as in this case that people might have rejected this proposed Constitution.

    It’s considerations of comity here with a Federal Court on the one hand and a state body on the other.

    Secondly, aside from these general considerations, we think that they are some peculiar to Georgia that shows that this particular relief should not have been granted.

    The Constitution of 1945 which is in existence now was submitted in the identically same fashion that the proposed 1964 Constitution was and yet the legislature that submitted the 1945 Constitution was much more malapportioned than the 1964 General Assembly which submitted the 1964 Constitution.

    At the time of the submission of the 1945 Constitution the nine largest districts in the Senate and in the State having over 50% of the States population had only 16% of the Senate and yet the 1964 General Assembly.

    In that General Assembly the Senate and then the eight largest counties or nine largest counties in the State having 43% of the people had exactly 43% of the Senate , which is perfectly qualified.

    So we say that if you say that this 1964 Constitution could not stand what happens to our existing Constitution.

    It was even more the product of a malapportioned body and its also significant to note in this context that much if perhaps not the majority of the agitation for Constitutional reform in Georgia came from the urban areas and looking at the proposed instrument, the 1964 provision, it is much more liberal in favor of municipalities in the metropolitan areas and it was the 1945 document contains broad powers of home rule, record transit, municipal parking systems, furnishing of municipal type said this is by counties and what is more significant for the first time in the history of our state a provision was written in to the 1945 Constitution permitting cities to share in the automatic Constitutional allocation of road funds derived from motor fuel tax.

    There’s no question that the 40th, — that the 1964 Constitution was much more favorable to municipalities than the 1945 laws.

    This brings me down and I might point out here that the reason for Constitutional reform in Georgia has been the unusual specificity in detail above the existing Constitution.

    Since 1945 we’ve had approximately 500 amendments to it.

    This 1964 General Election, we had a 103 local amendments alone in one election and 14 general amendments.

    E. Freeman Leverett:

    The ballot in Georgia sometimes reaches monstrous proportions because of the statutory detail above our Constitution.

    Potter Stewart:

    What do you mean by Local Amendments?

    E. Freeman Leverett:

    We have amendments that affect only a particularly local subdivision.

    A classic example is the existing Constitution says that Boards of Education shall consist of five members appointed by the grand jury.

    We’ve had over 50 amendments amending that, saying that that shall not be true and ex-county that they will be elected by wards.

    The last point I wish to discuss is the Court’s reliance below or upon its interpretation of state law.

    Earl Warren:

    Mr. Leverett before you get to that, may I ask what this new Constitution provides as to apportionment of your legislative bodies?

    E. Freeman Leverett:

    Yes sir.

    We have — and as far as the Senate is concerned, it continues in substantially the same language the amendment that was adopted in 1962 as a result of Federal Court litigation stating that the Senate shall be based upon population, shall be realigned every 10 years, it shall be 54 districts with one senator from each district and as to that House — it completely struck away the 3-2-1 formula that is under sought here and that we concede is – does not meet the requirements of this Court and substituted a provision which simply said that there should be not less than a 162, not more than 216 I believe, members of the House to be apportioned in such manner as the General Assembly might provide.

    The idea being that it would be better to leave it in general terms so that if Constitutional doctrine changes, we wouldn’t be frozen in with something that we couldn’t change.

    In enjoining the submission of the proposed Constitution, the District Court relied not only upon considerations of malapportionment but also upon its own interpretation to the effect that this proposed amending procedure was not valid under the State Constitution.

    The procedure employed in adopting or ratifying the 1945 Constitution was identical to that being pursued here within three steps.

    The tracking of the instrument by a Constitutional revision Commission created by statute, some of the members of which were appointed by the Governor, others of which were simply ex-official named in the resolution itself.

    The submission to an approval of that draft and — with changes by the legislature, by two-thirds of vote of both houses.

    Thirdly, submission to the people at the next ensuing General Elections.

    Now the existing Constitutional provisions governing amendment procedures for all practical purposes here were identical, under the Constitution in effect at the time the 1945 document was ratified and those in effect now under which the 64th document was ratified.

    That similarity in both Constitutional procedure and in Constitutional provisions makes relevant, a case decided by the Georgia Supreme Court.

    Following the adoption of the 1945 Constitution, a suit was brought challenging it in effect on the ground that under the Georgia Constitution they complete the new Constitution as distinguished from amendments to particular provisions that were separatist, and individualist in nature could be done only by Constitutional convention.

    The Supreme Court of Georgia in Wheeler versus Fargo Consolidated School District which is discussed in the briefs rejected that holding that the convention procedure was not exclusive and that is was applicable only if the legislature solved it to follow the convention procedure.

    Now, appellees disagree with us upon the interpretation of that case.

    I think that the Court can read it for itself, it’s — to me it’s very clear, I would point out this though that the Court itself said in that case that the Constitution had to have been submitted in the courts with the legal machinery or it would have been struck down even after it’s ratification by the people.

    Arthur J. Goldberg:

    [Inaudible]

    E. Freeman Leverett:

    Yes sir and I respectfully disagree with the Court’s decision.

    Arthur J. Goldberg:

    [Inaudible] the ratification?

    E. Freeman Leverett:

    No sir.

    Arthur J. Goldberg:

    [Inaudible]

    E. Freeman Leverett:

    Prior —

    Arthur J. Goldberg:

    [Inaudible]

    E. Freeman Leverett:

    That’s correct sir.

    Prior to the time that this litigation arose, the Attorney General of Georgia had rendered an opinion on this very question holding that the convention method was not an exclusive method.

    E. Freeman Leverett:

    That brings into analogy, it seems to me this Court’s decision in the Thibodaux case, the Louisiana Light and Power Company where the Attorney General of Louisiana had rendered an opinion questioning whether a city very similar to Thibodaux City could expropriate the assets and facilities of a public utility and this Court held that the District Court was correct in abstaining and remanding the matter to a state court in view of the unsettled nature of Louisiana law as brought out by the Attorney General’s opinion.

    Now we say here that in all fairness to the District Court below I think that a fair reading of this opinion of the Supreme Court of Georgia very clearly supports our view of it but the District Court itself conceded that the question was doubtful and having done even that much, it’s certainly we think was under a duty to abstain.

    Earl Warren:

    All three judges were from Georgia, weren’t they?

    E. Freeman Leverett:

    Let’s see, Judge Tuttle was, Judge Bell was, and Judge Morgan, yes sir.

    Arthur J. Goldberg:

    And part of their decision is that they [Inaudible] opinions of the jurisdiction [Inaudible]

    E. Freeman Leverett:

    No sir.

    I’m asking you to remand it and let the proper Court resolve it.

    Arthur J. Goldberg:

    You’re asking us to remand it, but the Federal Court did remand all these questions about the State court rule.

    E. Freeman Leverett:

    That’s right sir.

    Mr. Justice Goldberg —

    Potter Stewart:

    You’re not asking us to decide what the Georgia law is?

    E. Freeman Leverett:

    No sir.

    Potter Stewart:

    We can reverse the District Court on that basis?

    E. Freeman Leverett:

    No sir.

    Potter Stewart:

    But not as my brother Harlan suggested to remand it and tell the District Court to not decide that this is important, that this is a question of Georgian law until they have them to the Georgian Court.

    E. Freeman Leverett:

    That’s right sir.

    A major contribution —

    Hugo L. Black:

    Do you have a provision for declaratory judgment in Georgia?

    E. Freeman Leverett:

    Yes sir.

    Hugo L. Black:

    Why hadn’t it been used?

    E. Freeman Leverett:

    Well, the State is —

    Hugo L. Black:

    This wouldn’t prevent it though —

    E. Freeman Leverett:

    No sir.

    Hugo L. Black:

    You could have raised the issue, could you not?

    E. Freeman Leverett:

    Well, of course if the whole thing was moot after the District Court had acted – and nobody has seized that moving around — how is that sir?

    Hugo L. Black:

    Is it moot now?

    How is that?

    E. Freeman Leverett:

    No sir.

    Hugo L. Black:

    Why isn’t it moved?

    E. Freeman Leverett:

    The issue as far as we want an injunction from the Court holding we though we’d get relief from this Court.

    Hugo L. Black:

    But you are not enjoined from going into the State court to get a declaratory judgment, weren’t you?

    E. Freeman Leverett:

    I’m not sure that the declaratory judgment would allow in favor of the State.

    I think that unquestionably an injunction suit would allow in behalf of some individual who wanted to contest the procedure.

    Hugo L. Black:

    Oh you do — you’re not sure then that the declaratory judgment could have been obtained?

    E. Freeman Leverett:

    No, on behalf of the State.

    Hugo L. Black:

    Why?

    Why couldn’t you do it?

    E. Freeman Leverett:

    Well we have some —

    Hugo L. Black:

    — the official of the State.

    E. Freeman Leverett:

    We have some questions that had risen us to back — whether it’s a justiciable controversy.

    Perhaps it might, we have given a —

    Hugo L. Black:

    But it’s justiciable, isn’t it?

    Being just — being indicated now.

    E. Freeman Leverett:

    The — I would say this Mr. Justice Black, I can’t answer your question because of course it’s sufficient enough to me that we have not been directed to file one.

    It was discussed but in view of the fact that this case was pending, we anticipated that a decision would be forthcoming at the proper form and at this Court or the Lower Court directs us to have the question determined in State Courts we will certainly do so.

    Hugo L. Black:

    You’d be — or you’re not afraid to try to have it determined in the State Court?

    I’m talking about that particular issue, under declaratory judgment.

    E. Freeman Leverett:

    I think that we are free to do it, yes sir.

    The decision of making of instituting suits of course is with the government not with the Attorney General on the Georgia law, so that’s the question he would have to resolve.

    Hugo L. Black:

    But we had to assume that the State of Georgia is here presenting his view, or not just the Attorney General.

    E. Freeman Leverett:

    Yes sir, but what I am saying is this, that if this Courts grants us the relief that we ask for with the suggestion.

    If we do that we will certainly do it.

    Hugo L. Black:

    You are asking us to overrule three Georgian Judges on the question of Georgia law?

    E. Freeman Leverett:

    I don’t think that’s quite a fair statement of it Mr. Justice Black.

    Hugo L. Black:

    Well you’re saying if we should — if we don’t overrule it we should assume they’re wrong enough to send it, or doubtful enough and send it back and then stop all the proceedings until you can file a declaratory judgment and get it ruled on by the State Court, is that it?

    E. Freeman Leverett:

    We think that as far as reliance upon the State question is concerned that that part of the District Court’s determination should be set aside and if that being so before any Constitution is submitted I think that if that is the disposition of this Court, I think I can probably speak for the State of Georgia to the extent of saying that we will accommodate — we will follow the suggestion of this Court and institute a declaratory judgment proceeding under state law.

    Of course that still doesn’t relieve us of this federal question that’s involved in this case.

    Now, to answer your question and also Mr. Justice Goldberg’s question, at page 168 of the record, the last paragraph that we do not feel that it would be proper to permit such new Constitution as maybe proposed to be submitted to the people for ratification or rejection when it is as is the case here proposed under the conditions of doubtful legality by a malapportioned mount of portion legislative body.

    Arthur J. Goldberg:

    That is the [Inaudible]

    E. Freeman Leverett:

    That’s — the record at page 168, the last paragraph.

    E. Freeman Leverett:

    That’s the opinion rather than the order itself.

    And we take the position that number one, that this question of state law was so clear on it’s face, we think that it would warrant this Court in making a determination but apparently some justices have expressed reservation in overruling the District Court but in any event we say, that certainly the District Court should have abstained on this question particularly when it wasn’t even raised by the parties themselves, the District Court itself injected this issue into the case.

    It had been played about in the newspapers several weeks before this litigation was renewed and the Attorney General had rendered this opinion but this was not raised by the parties.

    Hugo L. Black:

    Or is it or wasn’t, wasn’t it absolutely necessary that these judges in usual situation had to pass on this question and meet this problem one way or the other?

    E. Freeman Leverett:

    Not as to the State question.

    Hugo L. Black:

    Well, if they thought that under the State law that it — that was necessary for them to protect the rights of the people in connection with apportionment, you take some steps in connection with it, it was that due to the defense on it, wasn’t it?

    E. Freeman Leverett:

    As far as federal question —

    Hugo L. Black:

    Or else that, you say abstain?

    E. Freeman Leverett:

    There was plenty of time for necessary proceedings to be brought in state court.

    Our state courts, had more liberal rules as far as appeals in the Federal Courts.

    You can appeal from the old ruling of a general – in State Courts.

    You can appeal from the granting or denying of a temporary injunction which can be brought and heard two or three days after the suit is filed and that the procedures for getting a state court determination were more expeditious than they were as far as Federal Court adjudication.

    Hugo L. Black:

    How long do you have submitted these to get the determination that you had for it?

    E. Freeman Leverett:

    Two to three months.

    We have cooperated with – seeking to have a test case brought and we generally had good cooperation.

    In most cases we did not in some of these senate reapportionment cases where the procedural fencing boxed us in so to speak and the thing was mooted before we could get it up that due to our bill of exceptions procedure.

    Hugo L. Black:

    How long has it been since the injunction was issued and you knew this issue was here, and you had to meet it?

    E. Freeman Leverett:

    June the — the injunction was rendered June 5th 1964.

    Hugo L. Black:

    You had plenty of time and if you had desired to do so have you not —

    E. Freeman Leverett:

    Yes sir, and so have the plaintiffs in this case.

    Hugo L. Black:

    Well but the — why is that you’re the one who’s complaining about it, aren’t you?

    E. Freeman Leverett:

    Yes sir, but we are so certain of our position that we didn’t think that it was nearly arguable.

    Hugo L. Black:

    But were you still that certain after the three Judges enjoin your rule as they did?

    E. Freeman Leverett:

    Yes sir.

    We are still certain. I’m not interpreting —

    Hugo L. Black:

    Well that’s the lawyer’s prerogative, its based [Inaudible]

    E. Freeman Leverett:

    Yes.

    I am not interpreting —

    Hugo L. Black:

    [Inaudible]

    E. Freeman Leverett:

    The abstention cases too imply that the person invoking it necessarily is the only one that’s — that the duty is imposed upon it.

    E. Freeman Leverett:

    It seems to me that the duty properly falls on the person who really has some doubt about the question.

    Hugo L. Black:

    Well but I presume the plaintiff didn’t have much doubt left after the three judges decided in his favor.

    E. Freeman Leverett:

    They didn’t care.

    They didn’t raise the question.

    Hugo L. Black:

    Oh —

    E. Freeman Leverett:

    In fact they twice disclaimed any desire for that relief and only when the court’s order say we don’t give it to you whether you want it or not that they come in and amend their complaint and then ask for it.

    Hugo L. Black:

    They did ask for it?

    E. Freeman Leverett:

    After the court told them they were going to get it.

    Hugo L. Black:

    So that we can’t assume that they still didn’t want it, can we?

    E. Freeman Leverett:

    I think if you read between the lines, you can discern that they probably didn’t want it.

    Hugo L. Black:

    Did the present question [Inaudible]

    E. Freeman Leverett:

    Which question is that Mr. Justice Black?

    Hugo L. Black:

    They corrected it.

    You said it was through the Constitution.

    E. Freeman Leverett:

    Yes sir, we — after — we did that in the first hearing on June the 19th because I undertook to discuss it and Judge Bell said “You know, you didn’t deal with that any further, the plaintiffs have given you a prefect answer to that, they say they don’t want it.

    So I went on to some other things.

    And when the Court issued it’s proposed order that afternoon in which this was injected and then we came back on June the 24th and did present our views on it.

    Hugo L. Black:

    After the order was entered –-

    E. Freeman Leverett:

    The order was in it on the 24th and then modified in some technical respects on the 30th, as it finally appears.

    Hugo L. Black:

    Do you present it to the authorities and everything on the 24th?

    E. Freeman Leverett:

    Yes sir, this is no authority other than the interpretation of the case itself.

    William J. Brennan, Jr.:

    On the Attorney General’s opinion, is that?

    E. Freeman Leverett:

    Yes sir, we presented that.

    Byron R. White:

    How about — let’s assume for the moment that it was rather clear that this was not the correct procedure to the policy in submitting a new Constitution, but the legislature went ahead and did it anyway or was in the process.

    What if the proper remedy in those circumstances in the Georgia courts if a citizen came in and attempted to enjoin the submission of the new Constitution prior to its submission or would the Georgia courts hold that this isn’t the right remedy you must wait until it’s submitted in the documents.

    E. Freeman Leverett:

    I think that if the procedure itself where the defective thing which would be in this case that the Judges —

    Byron R. White:

    Let’s assume that this — the very question of that issue here where — that was rather clear that this was an improper way of going about submitting an entirely new Constitution.

    E. Freeman Leverett:

    Yes sir.

    I think that the case would lie.

    I think that under the language and reasoning of the Supreme Court —

    Byron R. White:

    So that your courts if it were made clear that they were — that the legislature was making mistakes would enjoin the legislature.

    E. Freeman Leverett:

    Not the legislature.

    Byron R. White:

    What would they —

    E. Freeman Leverett:

    They would enjoin the Secretary of State —

    Byron R. White:

    Alright.

    E. Freeman Leverett:

    And putting it on the ballot but that would be because of some defect in the actual submitting procedure not because of malapportionment considerations or other considerations.

    Byron R. White:

    Oh, I understand that.

    And —

    E. Freeman Leverett:

    It’s never been tested to my knowledge.

    Well — but I don’t recall it may have. I haven’t spend enough to commit myself on that.

    Byron R. White:

    And then I take it you think that the — that your Supreme Court did say in the Wheeler case that — if it weren’t clear that that was in proper procedures used that these — that it could be enjoined?

    E. Freeman Leverett:

    I think the implication of what you said there was that it could be questioned even after it has been reportedly ratified by the people.

    Byron R. White:

    Yes.

    E. Freeman Leverett:

    Because if they haven’t meant that, it wouldn’t have been necessary for them to consider whether or not this Constitution had been submitted ”according to the prevailing legal machinery.”

    Earl Warren:

    Mrs. Francis Shackelford.

    Francis Shackelford:

    Mr. Chief Justice, honorable members of the Court.

    We felt the responsibility to our clients and to this Court to move for dismissal for mootness.

    We still think that we are right.

    We submit that this question has been covered in our brief and then in the colloquies between members of this Court and Mr. Leverett.

    Before we move to the merits of the case however, we do emphasize that the 1965 General Assembly which would have to repass a new Constitution in order for one to be proposed to the people at the General Election in 1966.

    We emphasize that in this new 1965 General Assembly, 20 of the 54 members of the Senate will be new and 67 members of the House with 205 members will be new.

    We think in this case that there are two points which are now very clearly established.

    The first is that the Georgia House is badly malapportioned with the adverse ratio reaching as high as 101.

    The second point we think which is very clear and that is that the only question before this Court is whether the Georgia 1965 General Assembly may itself propose a new Constitution to the people.

    Potter Stewart:

    As a matter of Federal — of the requirements of the Federal Constitution, is that correct?

    Francis Shackelford:

    Yes Your Honor.

    Potter Stewart:

    That’s the basic question before us?

    Francis Shackelford:

    Yes Mr. Justice Stewart.

    On that point we think the heart of the matter may well be shown in this fashion.

    It is completely clear as admitted by the appellants themselves that our three-judge District Court could have ordered the House reapportioned in1964 in time for the 1965 session.

    Francis Shackelford:

    What has been done in this instance?

    Instead of the Courts doing that, it has used this very broad power of equity, this broad power of equity which we call the doctrine of equitable transition which was first set forth by this court in Brown and which again set by — forth by this court in Reynolds and Sims just a few months ago.

    Under this doctrine, these three-judge court instead of doing as it could have done and ordering an immediate reapportionment, it listened to the appellants, it listened to the Governor of the State who made a special appearance.

    What they requested was time.

    The Court gave them everything that they requested for a period of one year for the period of 1965 except in one limited area that limited area is enjoining it from proposing this malapportioned general assembly from proposing a new Constitution.

    However, it very clearly gave the Court the power to propose amendments — any amendments it might desire or a group of amendments.

    Hugo L. Black:

    You mean again the legislature —

    Francis Shackelford:

    Legislature, yes.

    In addition, the legislature also has the power to call a Constitutional convention.

    Byron R. White:

    [Inaudible]

    Francis Shackelford:

    It in effect does that Mr. Justice.

    Byron R. White:

    But why could it be [Inaudible]

    Francis Shackelford:

    Sir?

    Why could it be — why — is it —

    Byron R. White:

    Does it have to be mootness?

    Francis Shackelford:

    Well we feel and argue and believe it is moot because it is highly speculated, entirely uncertain what a new general assembly will do in 1965.

    Byron R. White:

    [Inaudible]

    Francis Shackelford:

    Your Honor, the General Assembly is itself not a party to the action.

    So the ordered cannot and does not go as Mr. Leverett said to the members of the General Assembly.

    The party is still ahead of the — State Election Officials such as the Secretary of State and such as the ordinaries of six counties that the General Assembly and it’s members are not a party.

    Byron R. White:

    I though that [Inaudible] in the order itself.

    I — I suppose you would object then that this is what they need to prove themselves.

    The order of enjoining the holding the General Assembly in the city and [Inaudible] for elections and it’s not an objective of the [Inaudible] they were not, they object it.

    Francis Shackelford:

    But Your Honor, we have no objection to this Court declaring — sustaining our position on mootness and it would automatically follow that —

    [Inaudible]

    Francis Shackelford:

    It would not — won’t wish that reasoning.

    [Inaudible]

    Francis Shackelford:

    Very definitely, yes, Your Honor.

    Hugo L. Black:

    Whose activities?

    Francis Shackelford:

    It reaches the activities of a — it reaches the activities of course of the parties to pursue who are the Secretary of State and the six ordinaries.

    Hugo L. Black:

    So that after the legislature had acted, as you construe it they would have violated no order.

    They would not with the —

    Francis Shackelford:

    They would have violated no order Mr. Justice Black but these —

    Hugo L. Black:

    But that the secretary of the state would violate an order if you did.

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    And as I understand your emphasis somebody said that that’s all right, in here because any body in the State come up or somebody could come up and get an injunction anyhow against that election.

    Francis Shackelford:

    Or could attempt to do so.

    Hugo L. Black:

    But if he had attempted to do so (Voice Overlap)

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    What you’re saying is that — its have to enjoin the Secretary of State.

    Francis Shackelford:

    Yes sir, enjoin the parties and the parties in turn would be enjoined from placing before the electorate at a 1966 General Election which is our next General Election, a new Constitution.

    Hugo L. Black:

    But that the legislature has hold it free to go ahead and pass such a law if it decides and submit it to the people.

    Francis Shackelford:

    As not being parties.

    We think it would be very unwise with Mr. —

    Hugo L. Black:

    I’m not talking about that.

    Francis Shackelford:

    No, I understand it sir.

    Hugo L. Black:

    So if an order were made by this Court which recognized that fact and if the legislature is not enjoined that — and it’s its held to be moot for that reason.

    You wouldn’t object to that order, would you?

    Francis Shackelford:

    No, sir.

    Hugo L. Black:

    Of course on the moot order where we think — or know —

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    But you wouldn’t have any injunction at all.

    Francis Shackelford:

    Not at all.

    It would then —

    Hugo L. Black:

    You don’t — you don’t object to that?

    Francis Shackelford:

    No sir.

    No, objection whatever.

    Hugo L. Black:

    And you’d be just right where when you started.

    Francis Shackelford:

    Yes, sir.

    William J. Brennan, Jr.:

    I don’t understand this Mr. Shackelford —

    Francis Shackelford:

    Yes, Mr. Justice Brennan?

    William J. Brennan, Jr.:

    These orders run only against certain state officials?

    Francis Shackelford:

    Certain state officials, yes sir.

    William J. Brennan, Jr.:

    And you think that has an affect?

    This is where I have difficulty following.

    There has never been an injunction against the legislature.

    Francis Shackelford:

    No, sir.

    William J. Brennan, Jr.:

    (Voice Overlap) I think as the legislature has no power to submit it to the people.

    The actual mechanics for submission as I understand it are responsibility of the Secretary of the State and other officials, is that so?

    Francis Shackelford:

    Yes, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    And this present injunction does or does not go against any submission for 1965, 1966, 1967 on the part of these officials?

    Francis Shackelford:

    It does go against it because it enjoins these officials pleasing before the electorate any new Constitution passed by a malapportioned general assembly in 1965.

    William J. Brennan, Jr.:

    Well as a practical matter, well — if that’s the fact that that injunction’s outstanding against those officials with the legislature, the 1965 legislature clashing on the new Constitution for submission knowing in advance that — in the face of that injunction is futile?

    Francis Shackelford:

    Only in our opinion if Mr. Leverett’s position should be sustained here which we urge should not be the case.

    Arthur J. Goldberg:

    Well this is the requirement then and the substance of the Constitutional convention?

    Francis Shackelford:

    Our interpretation of the Georgia statute is that an amendment of an entire new Constitution maybe submitted through a Constitutional convention which is based as near as practicable to use the words of the Constitution on population.

    That convention would normally be called by the legislature which the Constitution provides.

    Arthur J. Goldberg:

    But the malapportioned legislature could do that?

    Francis Shackelford:

    A malapportioned legislature could do that and the order of the Court clearly anticipates that possibility as well as the oral argument, the comments and the oral argument on that precise question.

    The legislature was advised and that it could call and all sorted appears in the ordering of the opinion could call a Constitutional convention or it can pass a series of separate amendments, with these separate amendments being focused upon before the people, but not to propose a new Constitution.

    Hugo L. Black:

    You’re arguing questions of mootness as I understand but in your understanding on your part that where the State agreed to the doctrine that the injunction will be vacated.

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    There will be merit.

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    There would be no injunction against the legislature or against the state officials?

    Francis Shackelford:

    Yes, sir.

    Hugo L. Black:

    And it would be just as though there had been no injunction of the — if we hold that.

    Francis Shackelford:

    If there’s a decision of mootness, yes.

    What do you say to Mr. Leverett’s argument that assuming all that that the legislatures hands are tied because of the opinion that’s been written by the three-judge court or that you — he maybe faced — the State maybe faced with another suit — new legislature acts.

    Francis Shackelford:

    Our opinion on that which is one of this is also one of the reasons that we have moved to concentrate on the merits in our argument but our opinion on that score is that that’s — it’s a matter of speculation as to what the legislature would do —

    Do you think your clients would bring another suit if the legislature did act?

    Francis Shackelford:

    I don’t know.

    We have not consulted with them, Your Honor on that score and I don’t know what they wish to do.

    And you’re certainly in no position to assure the State that you wouldn’t.

    Francis Shackelford:

    No, sir.

    We’re in no position to instruct – to state our — our position as to either way because we don’t know.

    We had no discussions of any kind with our clients on this subject.

    So that while it maybe speculative you just say it’s still a contingency that it is without substance?

    Francis Shackelford:

    It’s a contingency that is — I think in a certain effect, yes Your Honor.

    Yes.

    Hugo L. Black:

    You could not give any assurance even if you would?

    Francis Shackelford:

    No, we could give no —

    Hugo L. Black:

    [Inaudible] to the State.

    That means your own state [Inaudible] file a petition to get an injunction and for this one even as the basis?

    Francis Shackelford:

    I could give no assurance at all that that wouldn’t take place.

    Hugo L. Black:

    So insofar as the State being subjected to filing the lawsuit suggested an injunction it would be any farther the state would care to dismiss this moot, wouldn’t it, than if it’s not.

    Francis Shackelford:

    Well our own —

    Hugo L. Black:

    I’ve been talking less so far as the election is concerned.

    It would still have to be a new suit filed either by you or some other citizen?

    Francis Shackelford:

    Yes, Your Honor there would have to be, yes.

    Now turning if I may to the merits which we feel are so controlling in our favor and I come back to this simple point of equity, this court of ours could have ordered the malapportioned house to be reapportioned in 1964.

    It had that full power.

    It’s a power that it exercised two years ago in the case of our senate.

    It’s a power that was exercised in Sims and Reynolds in one month less time.

    The State itself agrees that that is so, but instead of going folds away what it did was use the broad powers of equity which this Court has urged and the doctrine of equitable transition.

    It used its full powers by permitting the General Assembly to set with full powers except for this one limited area during all of 1965 and it seems very strange to us under these circumstances when the position of the State has been granted in regard to time and when they were allowed that broad scope of powers and when the Court has used it’s battery of powers that exist to it as a court of equity for the State to come in and say that only two possibilities existed.

    One was to reapportion the House immediately and otherwise to let the House sit in 1965 with no limitation of any kind whatever on its powers.

    We urge and emphasize that that is not the case that there was a whole gamut of powers in between them and one of the great doctrines we feel that if initiated in a very difficult area and a sensitive area of this kind is to permit a Court to exercise in accordance with local conditions.

    That power of equity, that whole battery of equity powers that it has in a situation of this kind.

    Potter Stewart:

    Well that’s — I suppose anybody would have to really would, what you’ve just said about the powers of the Court of equity that in between two extremes there’s a broad spectrum of range, equitable discretion but still that doesn’t get to the merits of this case which as a matter in which are these and this issue alone as I understand it, whether as a matter of the requirements of the Federal Constitution, a constitutional amendment has to be proposed to the — for the vote of the people by a fairly apportioned legislature.

    Potter Stewart:

    If that’s true then I think that would hold an unconstitutional, the procedures and practices of almost every state in the union because in the States with which I’m familiar, constitutional amendment can be put on the ballot for a vote by the people, by petition of a small percentage of the voters of the state.

    Francis Shackelford:

    Mr. Justice Stewart we emphasize that the important element on this is the element of timing, if a malapportioned general assembly as it had been done in many states, and many instances, I propose is a new Constitution and that Constitution is ratified by the people and then that’s one situation as we had in 1945, but if on the other hand the action, the legal action is taken before the electorate ever votes on the proposed new Constitution as is the situation here then we submit and we urge that as a matter of federal question and as a matter of state question that the District Court below properly acted in enjoining these election officials to place such a Constitution on the ballot.

    Potter Stewart:

    I understand your argument as to the equity and as to the tempo and the equities of the situation.

    If the Court was right about it’s — about the substantive Constitutional issue but — and perhaps I haven’t made myself clear, I gather that it would be – it would violate the Federal Constitution in your opinion for a state to provide that a Constitutional amendment to be proposed for a vote by the people could be proposed say by committee of six people appointed by the governor.

    Francis Shackelford:

    We say it would depend entirely on the — that would —

    Potter Stewart:

    Well it depends on it, on the requirements of the Federal Constitution.

    Francis Shackelford:

    Yes, sir.

    Potter Stewart:

    You say that the Federal Constitution absolutely requires that no state Constitutional amendment can be put on the ballot except by a fairly apportioned legislature.

    It couldn’t be on — put on by petition.

    It couldn’t be put on by a committee or in any other manner except by a Constitutional convention or a fairly apportioned legislature, that’s your position on the underlying basic Constitutional substantive issue in this case.

    Francis Shackelford:

    Mr. Justice Stewart we suggest that our position has what we believe is more finesse to it than that and the finesse that we think that necessarily has is that it must be taken in the framework of the malapportioned cases and particularly in framework of this malapportionment case and when we take it in that framework and when we look at the powers of the Court of Equity and then we reach a decision, and then under these circumstances and exercising those equity powers and in that framework in our judgment the District Court has properly acted as a federal question.

    I would like to turn very briefly to the State question which it had also used because in our judgment, its construction of the Wheeler case, the 1945 State case, is entirely correct.

    We think that —

    William J. Brennan, Jr.:

    Mr. Shackelford, but before you get at that and I — I mean, this mootness problem is bothering me.

    Francis Shackelford:

    Yes, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    And from what you’ve now said, as I understand it you don’t want this injunction anymore.

    You appreciate that its vacation would mean in no restraints of any kind against the Secretary of the State or anyone else to go out and do whatever they want to do in 1965 and there after, is that right?

    Francis Shackelford:

    Your —

    William J. Brennan, Jr.:

    If we vacate the injunction which as I read it here and as I gather you agree with me, operates against the Secretary of the State and certain officials for 1965 and indeed for what indefinite future though.

    Francis Shackelford:

    For the indefinite future as long as a malapportioned general assembly should propose a new Constitution.

    William J. Brennan, Jr.:

    Now, you’re willing to give that up?

    Francis Shackelford:

    Your Honor, we prefer of course for a decision on the merits which we think are right.

    We felt as I said at the beginning of my argument as a matter of responsibility to raise the question of mootness because we think that we are right on the question of mootness and for the reasons which I’ve given.

    William J. Brennan, Jr.:

    My difficulty is I must say, I’d be dense about this but I simply can’t follow your argument if that’s moot, when you tell us you’re willing to give it up it seems to me really what you’re coming to is saying, “Hey, we don’t want the injunction anymore.”

    Francis Shackelford:

    Your Honor —

    William J. Brennan, Jr.:

    Let it aside, we’re not interested.

    Francis Shackelford:

    We have before you in the classic situation of alternative positions, one is the motion to dismiss on mootness, the other is a motion to affirm on merits.

    William J. Brennan, Jr.:

    Well I’ve indicated to you my considerable difficulty in following you how this is moot.

    Francis Shackelford:

    Well we appreciate your concern over that and we of course greatly respect it.

    We feel on our own thought when you’ve got something as highly speculative as we have here as to what the 1965 General Assembly will do, with so many new faces that it is so speculative that it does become (Voice Overlap).

    William J. Brennan, Jr.:

    Well, frankly if I were in the assembly I’d do nothing.

    If I knew that to do anything it was futile because an outstanding injunction against the Secretary of State for submitting my end product to the people for improvement.

    That’s my problem with it.

    Francis Shackelford:

    [Laughter]

    Tom C. Clark:

    You put the secretary in quite a quandary it seems to me because he has to pass on this new acts of the legislature to assume this legislature is going to pass on that, would say generate the [Inaudible]

    Francis Shackelford:

    Mr. Justice Clark, excuse me?

    Tom C. Clark:

    They sent it on over to the Secretary and he has to determine whether or not it’s malapportioned and he couldn’t do it, because it is malapportioned with the present legislature, isn’t it?

    Francis Shackelford:

    Well our experience —

    Tom C. Clark:

    Is it not?

    Francis Shackelford:

    — with the Secretary of State both in this case as well as from observation in other cases is that the Secretary of State is going to observe any order against him by the federal court.

    I don’t think there would be any question at all on that score.

    I don’t think he would even consider his own separate and independent interpretation as to what the situation might be.

    Tom C. Clark:

    You had an argument that the present legislature is malapportioned, do you not?

    Francis Shackelford:

    Yes, sir.

    Tom C. Clark:

    So he would be enjoined in submitting anything?

    Francis Shackelford:

    Yes, sir.

    And he would — and he in our judgment very clearly and very definitely without any question would follow that injunction.

    Tom C. Clark:

    And you’d had then once said that legislature count it and submit it on the Court on the other side don’t do that?

    Francis Shackelford:

    Yes, sir.

    He would follow it and again in our judgment the specific injunction against him by the Federal Court.

    Tom C. Clark:

    I’m sure he’d been.

    Francis Shackelford:

    We feel and ensured it anyway.

    Hugo L. Black:

    You wouldn’t have him and that there’s a level, would you if the officials dismissed this moot?

    Francis Shackelford:

    No, sir.

    Hugo L. Black:

    As I understand it your position is number one, that the legislative not enjoined at all.

    And I suppose you would argue that we can’t try to probe their minds to see when they’re not enjoined whether there would be a future injunction or something like keeping from going to law.

    Secondly, you say that the secretary while enjoined now will not to be enjoined if it declared moot.

    Francis Shackelford:

    That’s correct, sir.

    Hugo L. Black:

    You’re asking us to declare it moot.

    Francis Shackelford:

    Yes, sir.

    Francis Shackelford:

    And in the — and the alternative and what we believe —

    Hugo L. Black:

    By your judgment you’d judged that you fully, the judgment would be vacated.

    Francis Shackelford:

    We understand thoroughly Your Honor.

    Hugo L. Black:

    And if no injunction would be outstanding of any kind against anybody.

    Francis Shackelford:

    Yes, sir.

    We understand that thoroughly.

    William J. Brennan, Jr.:

    Well Mr. Shackelford if I get you now, you don’t want us to act on the premise that you folded up.

    You want us to act on the premise only if we agree with you that the case is moot, is that it?

    Francis Shackelford:

    Your Honor, we want you to act with us on either ground.

    We believe that both of our grounds, both of our arguments (Voice Overlap)

    William J. Brennan, Jr.:

    Well, are you telling us that you don’t want — you want us to — you want us to understand it.

    You don’t want the injunction any longer and you’re quite willing to have it vacated and disposed off on whatever ground we could find to dispose it?

    Francis Shackelford:

    If you agree with us on our motion to dismiss on mootness we want our motion to be granted.

    Potter Stewart:

    That’s all.

    Francis Shackelford:

    If you disagree with our motion to dismiss on mootness and agree with us as we urge you to do so on merits —

    Potter Stewart:

    On the merits, that what we think.

    Francis Shackelford:

    We won’t be a —

    William J. Brennan, Jr.:

    Well what about the middle ground?

    Are you coming here and telling us you don’t like the injunction any longer?

    Francis Shackelford:

    Well in — insofar as the injunctions against these election officials are concerned in connection with a new Constitution, we realize of course that if our motions on mootness, our motion to dismiss on mootness were granted that that itself becomes vacated.

    William J. Brennan, Jr.:

    But I understood you to say that you made the motion on mootness grounds because you felt that it is your responsibility as officers of the Court to assess that — that problem to it.

    Francis Shackelford:

    Yes, sir.

    William J. Brennan, Jr.:

    But I also understood you to say that if there’s no merit in the mootness ground then you want a decisions on the merits.

    Francis Shackelford:

    Yes, sir.

    William J. Brennan, Jr.:

    And you don’t want a decision on any understanding that you’re giving up voluntarily the injunction you’ve had.

    Francis Shackelford:

    No, sir.

    Tom C. Clark:

    But your motion is that except on the ground of mootness.

    Francis Shackelford:

    Except on the grounds of mootness, exactly.

    Hugo L. Black:

    And you’re giving it up voluntarily on that ground.

    Francis Shackelford:

    Exactly.

    Hugo L. Black:

    You recognized it for the access to do it.

    Francis Shackelford:

    Fully and completely, yes.

    Hugo L. Black:

    And urge we do it.

    Francis Shackelford:

    Yes, sir.

    Byron R. White:

    And your position on mootness really, what you’re saying is that we did no longer have any controversy.

    Francis Shackelford:

    Exactly.

    If we’re right on mootness there is no controversy.

    Byron R. White:

    And that consequently I would — I don’t know why if you don’t think there’s any controversy at all between the two of you that you won’t — wouldn’t consent in the District Court to a vacation of the injunction.

    I thought that you consented to do the vacation of the other matter.

    Francis Shackelford:

    That’s a sensitive matter Mr. Justice White and on a —

    Byron R. White:

    I understand.

    Francis Shackelford:

    — on a state basis and we may well be willing to do that but they’re maybe difficulties in connection with (Voice Overlap)

    Byron R. White:

    But this means that you’re willing to do it up here?

    Francis Shackelford:

    Well, we — we are doing it before this Court because we think each of the two grounds, each of the two alternative grounds which we urge upon this Court, each is thoroughly sound and if you agree with us on our motion to dismiss the case is over.

    Byron R. White:

    But you would — if the Court entered an order modifying or just vacating the order below, not because it is moot, but just vacating, why would the consent of counsel?

    Francis Shackelford:

    We would be unhappy with that.

    Byron R. White:

    So you’re unhappy, you oppose that?

    Francis Shackelford:

    Yes, sir.

    We would —

    Byron R. White:

    Well, if we just put in the word mootness here for it.

    Francis Shackelford:

    Yes, sir.

    Byron R. White:

    May I ask Mr. Leverette to do that —

    Francis Shackelford:

    Oh yes.

    Mr. — Mr. White who is one of my colleagues has discussed this point of sensitivity which you’ve just raised and I think that I’ve said enough in regard to — namely that on this particular point we would have been willing in regard to it namely that on this particular point we would have been willing in regard to the 1965 assembly to have moved along this general line, but it’s a sensitive point and so far as the parties are concerned, if I may turn —

    William O. Douglas:

    Of course if we did — should dismiss this as mootness technically that means that everything is expunged and that the situation that has existed if there had never been any litigation.

    That’s the incidence of mootness.

    So you’re conceding much more against your interest by pleading for mootness and if the Court back in sending through a dismissal —

    Francis Shackelford:

    Mr. Justice Douglas we are —

    William O. Douglas:

    That was confusing thing in mind, perhaps you don’t understand that we — we want that what the incidence of mootness is in this Court when we so hold it.

    Francis Shackelford:

    We would willingly make a — and knowingly make no such concession as that.

    Francis Shackelford:

    Our motion —

    William O. Douglas:

    Well you do when you ask that it’d be dismissed as mootness.

    Francis Shackelford:

    Our motion in regard to mootness goes to the question of placing the Constitution a — of a possible proposed new Constitution proposed in 1965 before the electorate in 1966.

    Hugo L. Black:

    Is there anything the Court on the appeal except that one point which you say is moot that is the injunction against submitting a Constitution, is that the sole purpose of the appeal?

    Francis Shackelford:

    In our –in our judgment that is the sole question.

    Hugo L. Black:

    Yes, that was a good — a good statement, does it not?

    Francis Shackelford:

    Yes, it does.

    Hugo L. Black:

    What you’re saying is that that issue has been wiped out as far as you’re concerned it’s moot and that you want to have it held dismissed.

    Francis Shackelford:

    Yes.

    William O. Douglas:

    That issue.

    Francis Shackelford:

    That issue alone.

    William O. Douglas:

    We would just submit at the specific — would you turn to page 200 of the record.

    200 —

    Francis Shackelford:

    Yes, Justice Douglas I —

    William O. Douglas:

    Permanent record paragraph number two, that the only — that’s the one we’re talking about, isn’t it?

    Francis Shackelford:

    Yes, sir.

    William O. Douglas:

    And the only thing you’re talking about?

    Francis Shackelford:

    Yes, sir.

    William O. Douglas:

    That whole paragraph.

    Francis Shackelford:

    That whole paragraph concerning any proposed new Constitution.

    However, we think that — well that would be eliminated.

    That paragraph, the very, very important decision which the District Court has rendered on this whole question of malapportionment and the areas related to it would continue to stand, the only thing that mootness would take care off is this one point in regard to the Constitution.

    If I may I would like to turn briefly to the Wheeler case which has been the subject of great discussion today.

    William O. Douglas:

    That was one — if there were — if we followed your recommendation on mootness then the legislature would be — the malapportioned legislature would be free to do anything to submit a Constitution, they call a convention, to do anything that they might, would be available to them to do on the Georgia law.

    Francis Shackelford:

    Anything that would be available under Georgia law and in our judgment if it would not be available to it under Georgia law to propose a new Constitution as distinguished from separate amendments, but anything available to it under Georgia law would be there.

    William O. Douglas:

    Including a new Constitution.

    Francis Shackelford:

    If it should choose to do so, we would think it would — if it did so it would be doing so illegally.

    William O. Douglas:

    And you could bring another suit, we have to start over again.

    Francis Shackelford:

    Yes, we or some party would bring another suit.

    Potter Stewart:

    Do you think it would be illegal as a matter of Georgia law.

    Francis Shackelford:

    It’s illegal as a matter of Georgia law, yes sir.

    Potter Stewart:

    Well then –-

    Francis Shackelford:

    We feel that very strongly and the reasons we feel that, I will — I will discuss very briefly.

    Potter Stewart:

    What?

    Francis Shackelford:

    Excuse me.

    Potter Stewart:

    Is this for us to decide what the Georgia law is?

    Francis Shackelford:

    The District Court has already decided this point, it’s part of their decision in regard to the merits and I would hope and urge that this Court affirmed the District Court in it’s decision.

    One element of its decision is of course the — is the Georgia question which we took up very carefully, in the Wheeler case.

    Potter Stewart:

    May I ask one other question.

    I —

    Francis Shackelford:

    Yes, sir.

    Potter Stewart:

    I know that we — all us of here maybe asked too many questions but do I — do you also plan that as a matter of the Federal Constitution it would be illegal for the 1965 legislature to propose a — a new Constitution to be voted upon at a regular election by the majority of the voters or by the voters of Georgia?

    Francis Shackelford:

    Yes, sir.

    Potter Stewart:

    And which could only become, become the Constitution if the majority approved the submission that it would be submitted.

    Francis Shackelford:

    Yes, Your Honor we do of course it is now declared malapportioned general assembly.

    Potter Stewart:

    Well where do you get that Constitutional principle?

    Is there anything in our case anywhere that says anything about that?

    Francis Shackelford:

    This is a case of first impression Your Honor on that point that it would not be attainable from cases I don’t think except that have been decided except perhaps in a remote way by — remote way of analogy but we think in sound reasoning and we think the principle on these grounds which we have stated and that is the Court would have been able to have gone all the way it can go lesser ground.

    Potter Stewart:

    All the way on what, but we are talking hereabout the subsidy of issue of Constitutional law.

    Francis Shackelford:

    A federal question.

    Potter Stewart:

    And if you are right, I suggest that the many state provisions which allow Constitutional amendments to be proposed by a small minority, by petition would all be unconstitutional.

    Francis Shackelford:

    Yeah.

    Your Honor we don’t feel that for this reason.

    That could be done in various ways by Commissions or by smaller number of our group of educators or otherwise but in this instance the source that has to do make the proposal is it would be the General Assembly itself by the way of our assumption and it is that General Assembly which is malapportioned and that’s what creates the problem.

    Potter Stewart:

    Well, I don’t see why.

    If — if you concede that so far as the Federal Constitution goes, 3% of the voters of the State can put a proposed Constitutional amendment on a ballot to be voted on by all of the people.

    If that’s Constitutional, then why can’t a malapportioned legislature do it?

    Francis Shackelford:

    3% of the voters can do it by means of initiative, for example, because those three — that 3% is acting very properly.

    On the other hand, they had been determining the 3%, it was found that there were great deal of unregistered names and instead of being 3%, it was 2.9%, it would all show it.

    We say by analogy and for the same reason here that a properly apportioned legislature could — if this could be done at all which we deny for proposing new Constitution, but a declared malapportioned legislature is in the same invalid position.

    Francis Shackelford:

    Now, in this particular point, as a 2.9 initiative would be in our example.

    Potter Stewart:

    Well, that might be a matter of state law where — I’m trying to — on my questions to the requirement of the Federal Constitution.

    Francis Shackelford:

    Yes, I realize that and under the equal protection clause, which of course is what our malapportioned cases are based upon and I’m trying to address myself to that as best as I can.

    Potter Stewart:

    But in — in other words, I’m suggesting only if you’re right as a matter of Federal Constitutional law then, you shouldn’t, then it would follow that a Commission with experts or a small percentage of the voters by petition are nobody else except — it could — could as a matter of Constitutional law submit in any state amendments to the State Constitution to be voted on by the people if, the malapportioned legislature can’t do it.

    Then, it has to be something at the — the proposal itself has to come either then from a Constitutional convention or from a legislature apportioned in accordance with Reynolds against Sims.

    Francis Shackelford:

    The vice, Your Honor in our judgment in such a submission, the vice in such a submission which brings the federal question into the picture is that a federally malapportioned legislature is the proposing body in this example as distinguished from a proper group, whether it be a properly — a properly apportioned legislature or whether it be a percentage of the voters by initiative or whether it be —

    Potter Stewart:

    No, if it’s — if the state law says that 3% of the people by petition — 3% of the registered voters by a petition can put a Constitutional amendment on the ballot, if that is Constitutional, then certainly, wouldn’t it follow that a malapportioned legislature could do the same thing, if only 3% and 97% of the people that don’t want it on the ballot.

    Francis Shackelford:

    Your Honor, the Constitutional question and analogy I should think and the — the crux or point is that — it doesn’t make any difference which one of these various mediums are being used.

    We get into the Constitutional question here because we have a malapportioned legislature, which is attempting to do the act and that could bring us in, in our judgment the federal question that —

    Potter Stewart:

    It’s not a legislative act, I think.

    Francis Shackelford:

    No, Sir.

    It’s not a legislative act — I would say.

    Potter Stewart:

    It’s proposing some to be voted on by the people, by a majority vote.

    Francis Shackelford:

    It’s not an act of legislation, that’s right.

    It’s a proposal, yes sir.

    Potter Stewart:

    You’ve — and you do concede this is — this is a narrow and brand new Constitutional question.

    Francis Shackelford:

    First impression, yes sir.

    Byron R. White:

    Right.

    Let’s assume that the legislature hadn’t been enjoined from submitting this Constitution and it has been submitted and has then passed to this assembly — that this — by this in this last election.

    Well that legislates — that new Constitution has a portion of provisions in it, doesn’t it?

    Francis Shackelford:

    It has portion of provisions in it.

    Byron R. White:

    Which is different from what presently exists?

    Francis Shackelford:

    Yes, interestingly enough by — and the provision covering the Senate, it is by population but there is no such phrase by population in the provision covering the House.

    Byron R. White:

    Yes.

    But nevertheless, there would be now — if that has occurred, there would be now a new Constitution with new apportioned provisions in it.

    Francis Shackelford:

    Yes sir.

    Byron R. White:

    And then, what would be necessary after that for the legislature to comply with the Court’s order.

    I guess what it means is to adopt a new apportionment as a Constitutional amendment.

    Francis Shackelford:

    Yes, a new statute.

    Byron R. White:

    Or would the — or does the present — the new Constitution allows the legislature itself —

    Francis Shackelford:

    Allows the legislature itself by statute to divide these seats and it’s a bracket of seats, a 166 to 214 roughly.

    Byron R. White:

    So, the reason involved — there is not involved in the Constitutional provisions a — a question of the people voting on a specific apportionment.

    Francis Shackelford:

    No, Sir, there is not.

    This is in — and we are talking only in terms of a proposed new Constitution, which have been enjoined.

    Byron R. White:

    Well, the reason —

    Francis Shackelford:

    And which of course is not bad (Voice Overlap).

    Excuse me, Mr. Justice?

    William J. Brennan, Jr.:

    The old Constitution had aid an apportionment for the Senate by population.

    Francis Shackelford:

    By population and it did not use the phrase by population in the case of the House.

    William J. Brennan, Jr.:

    Yes.

    Francis Shackelford:

    It left it to the House itself.

    Potter Stewart:

    It’s not a thing do you that this new Constitution incorporates anything that’s unconstitutional in the — in the area of the apportionment of the legislature, do you?

    That it perpetuates any unconstitutional standards in so far as the apportionment of the two houses to the legislature to go.

    Francis Shackelford:

    Insofar as the new Constitution is concerned proposed we — we haven’t brought that —

    Potter Stewart:

    You have no claim about it, do you?

    Francis Shackelford:

    No.

    The only thing we do emphasize which we think it is — it is [Inaudible] and passive and that is that in the case of the Senate that by — the population was very carefully in citing and it was equally carefully left out in the case of the House.

    Hugo L. Black:

    So that is [Inaudible]

    Francis Shackelford:

    If I may turn to the — to the State question and to the Wheeler case, three elements we think that the Wheeler case showed that different action is brought as was brought here before the amendment is — or before a new Constitution is proposed to the people, we think that by the terms of this decision that an injunction would lie.

    It did apply the Constitution was not declared invalid in our judgment in 1945 was because the legal proceedings before brought after ratification but turning briefly to the opinion, to begin with, our Constitution and it’s quoted in the appendix of the appellant’s brief permits the General Assembly to enact individual amendments.

    It’s very clear, I think from paragraph 1 that that is so, in a proposed amendment or your language of that kind, if the same shall be agreed by two-thirds numbers elected by each branch any amendment.

    The — repeated use of the phrase ‘a proposed amendment.

    Potter Stewart:

    Do I understand you to day that this assembly could enact amendments to the Constitution?

    Francis Shackelford:

    No, it could propose.

    It could propose for the ratification of the people individual amendments as distinguished from — in our judgment from a new Constitution.

    And, the first point on this that the Court ruled in regard to this 1945 Constitution and at the same thing was the picture here in the case of the present proposed Constitution and that is that so much had been to done to it in 1945 as in 1964, that it was not an amendment or a series of amendments but it was a new Constitution and the Court ruled specifically on that and we said we conclude that the instrument is not an amendment to the Constitution of 1877, but on the contrary is a completely revised or new Constitution and then it proceeded to consider the case on that.

    And then later, and a very expressed comment and having talked about the early adoption of the Federal Constitution and the convention there it said, speaking of the Federal Constitution, it had no more express authority to frame and submit to the people a new Constitution than did the Georgia legislature or the committee provided for by the resolution, we hardly see how it could be a clearer statement than this that the Georgia legislature had no power to propose a new Constitution.

    Tom C. Clark:

    Well, it is a national analogy.

    Francis Shackelford:

    Yes?

    We’re using —

    Tom C. Clark:

    That seems the analogy.

    They said, well, there’s Federal Constitution itself was adopted in exactly the same manner as the 1945 Georgia Constitution.

    Francis Shackelford:

    They were using it Your Honor as an analogy but in connection with using it and in addressing itself to the question of how — up to what extent a State General Assembly — our general assembly could go — it said that it had no power to propose a new Constitution or express authority to propose one.

    And then, it continues in its opinion.

    We think and with some emphasis —

    Tom C. Clark:

    But just as above that on the page before that —

    Francis Shackelford:

    Yes.

    Tom C. Clark:

    There’s some language there which says that they couldn’t read any such interpretation into your Constitution, don’t you?

    I think in 332 sad it long enough that it was.

    Francis Shackelford:

    Yes, I think and — I think in that regard, there is discussion as to what the – as to whether the only convention that could be called would be a convention that was called by the General Assembly to do it and that was the (Voice Overlap)

    Tom C. Clark:

    — themselves the question that says that this — that division of the Constitution prohibits the sovereign people that they express it from amending the Constitution itself by a convention and they used this language as I remember.

    The words do not say so.

    The language of the Constitution does not say so and they go on and say we wouldn’t be able to by implication read into the Constitution, something that would deprive the sovereign people of their right, their power.

    Francis Shackelford:

    But —

    Tom C. Clark:

    Isn’t that right?

    Francis Shackelford:

    Mr. Justice Clark, that general language and even — that — that’s your — it’s almost a precise way and it’s certainly had been paraphrased were not the precise way.

    It’s very definite basing on the opinion but we think it has to be taken into the context of the time schedule in this case.

    And, the time schedule was — this is emphasized in this portion which I will now read, the time schedule was if this was an action taken not before submission to the people but after the people had ratified the Constitution and the Court emphasizes that in fashion, bearing in mind the well established rule that every reasonable presumption, both of law and fact, is to be endorsed in favor of the validity of a Constitution when it is attacked, after its ratification by the people — bearing in mind the well established rule that every reasonable presumption both of law and fact, is to be endorsed in favor of the validity of a new Constitution when it is attacked after, after this ratification by the people.

    Tom C. Clark:

    Of course, that was to say to comply then?

    Francis Shackelford:

    It would, yes sir.

    And that in our judgment is the reason that the Constitution was sustained and that if the same action had been brought before it was submitted to the people, the result would have been otherwise.

    We agree completely with the analysis of our three Georgians who are on the Federal District Court that heard this case below.

    We think that they’re entirely right and again, in closing, we return to our point that of a the broad equity point which we has — we think has great merit and that is if the — if we could have gone all the way here as the Court could have and ordered immediately reapportionment in 1964, it has powers entirely beyond simply allowing the General Assembly to function with no limitations at all.

    In its battery of powers it can control the function of the limitations and we feel that it’s exercised equity and the classic and finest tradition in this instance in which it just allowed the General Assembly during 1965.

    The function in all respects and in all ways, with the exception of this one limited area and even here if it’s proposed to have a Constitutional convention established or if it’s proposed to pass or proposed an individual amendment or series of amendments, it’s open and clear to do so and we think that far from that being an element of complaint insofar as the state is consigned that the Court in exercising these powers has given great justice if there were any complaining to be done, we feel that it’d be ourselves who had a very strong case as the Court itself said for immediate apportionment, but it is not we that bring him the complaint and it seems strange to us under these circumstances with all of this having the been granted in this exercise of equity powers that has been granted, that we have this complaint before this Court.

    Thank you very much.

    [Inaudible] divide the lines of the dissent that the appellation of the limitation had directed time across the legislature who said and also I am prepared to consider in that way you’ve heard and concede now how that the balance of the injunction or it would be vacated.

    Francis Shackelford:

    I answered — the first of those was questions in regard to — in regard to one year, we think that on a — a balance of equities and because there are certain things that the legislature has to do that are continuing nature committees of an investigatory nature, that it have to have certain budget functions or the things of that kind, we think as a practical matter, that it’s desirable for it to continue as the Court has done for one year.

    We entered — I have agreed to that by stipulation in connection with an order — an amendment that was made to the order of the Court and we think so for what we feel are practical and fair reasons. In regard to the second point which you had raised, we think in that respect and the reason for our motion to dismiss is the particular Constitution of course is now dead because it is not presented to the people on November 3rd and we think that a highly speculated nature of a new Constitution being passed by a new assembly.

    It’s so uncertain that under those circumstance — circumstances, we are willing to accept a dismissal on mootness at that point.

    Francis Shackelford:

    Thank you very much.

    Earl Warren:

    Mr. Leverett do you need some response?

    E. Freeman Leverett:

    One — one point if it please the Court, I would like to address one remark to a question that Mr. Justice Douglas brought up with respect to mootness and that is.

    If this case is moot, it should be dismissed.

    There’s no question about that.

    You have no other alternative.

    It’s a matter of just being an Article III Court, I think the question of mootness goes to justiciable controversy.

    On the other hand, if the case is not by its facts moot, we — there was a protest to any court vacating a judgment not on the merits but simply in order to have the effect of a voting review.

    And it seems to us that what is, when in fact what is sought to be done not purposely, not obviously, the court below and the counsel here are honorable people but the effect in this context, it seems to me is no different than if for example, a lower court want to issue an injunction and every time after he had had expended it’s force at a crucial time and after it got in the appellate court, the lower court would vacate it not on the merits but on some technical grounds so to defeat the appeal.

    We could continue that ad infinitum.

    And that is we think — that is what we think in this particular situation is.

    Thank you.

    Tom C. Clark:

    I have few — one question to that, I did not mean to — that they were saying that the whole case that injunction as a whole which had not defied — which had not been appealed from —

    E. Freeman Leverett:

    No, Sir.

    We aren’t contesting that.

    Tom C. Clark:

    So that if we dismiss that moot, it would simply vacate that part of it from which you took an appeal.

    E. Freeman Leverett:

    That is correct sir.

    We — I didn’t know you have reference to that part.

    Tom C. Clark:

    That’s right, I didn’t understand this.

    Earl Warren:

    Very well.

    Francis Shackelford:

    If it — if it please the Court we would like to ask for permission to file a supplemental brief on the broader question that has particularly been raised by Mr. Justice Stewart in the course of his questions.

    Earl Warren:

    You may file a memorandum if you file it appropriately and of course the counsel may reply to it.

    Francis Shackelford:

    Thank you very much sir.