LOCATION: United States Post Office and Courthouse
DOCKET NO.: 300
DECIDED BY: Warren Court (1962-1965)
CITATION: 379 US 621 (1965)
ARGUED: Nov 18, 1964 / Nov 19, 1964
DECIDED: Jan 18, 1965
Facts of the case
Media for Fortson v. ToombsAudio Transcription for Oral Argument - November 18, 1964 in Fortson v. Toombs
Audio Transcription for Oral Argument - November 19, 1964 in Fortson v. Toombs
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:
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.