Gunn v. University Comm. to End War in Viet Nam

PETITIONER:Lester Gunn, Sheriff of Bell County, Texas et al.
RESPONDENT:University Comm. to End War in Viet Nam
LOCATION: Central Texas College

DOCKET NO.: 7
DECIDED BY: Burger Court (1970-1971)
LOWER COURT: Federal district court

CITATION: 399 US 383 (1970)
ARGUED: Jan 13, 1969 / Jan 14, 1969
REARGUED: Apr 29, 1970 / Apr 30, 1970
DECIDED: Jun 29, 1970

ADVOCATES:
David W. Louisell – For the Appellants
Sam Houston Clinton, Jr. – For the Appellees

Facts of the case

Members of the University Committee to End the War in Viet Nam (Protestors) were protesting at a speech by President Lyndon B. Johnson at Central Texas College in Killeen, Texas. After being attacked by the gathered crowd, the Protestors were arrested and charged with disturbing the peace. The Protestors sued and asked that a three-judge panel be convened in the district court to overrule the disturbing-the-peace statute since it violated their First Amendment rights. That court found the statute unconstitutional but stayed the injunction that would prevent enforcement of the statute until the next session of the Texas legislature, so that the legislature might enact a constitutionally permissible statute. However, the Texas legislature did not enact a new statute at its next session, and the court took no further action. Lester Gunn, the local sheriff, appealed directly to the Supreme Court of the United States. Gunn based his appeal on the Three-Judge Court Act, which allows direct appeals to the Supreme Court from orders granting or denying an injunction by a federal court of three judges.

Question

Does the Three-Judge Court Act allow direct appeals to the Supreme Court of the United States when the a district court does not specifically grant or deny an injunction?

Earl Warren:

Number 269, Lester Gunn et al., appellants versus University Committee to End the War in Vietnam et al.

Mr. Louisell?

David W. Louisell :

Mr. Chief Justice and may it please the Court.

Few cases that I have seen in recent years, so much invoke the ancient admonition owe to distinguish the reality of things from the tyranny of labels, or as this Court put it I believe in Trop against Dulles, how simple would be the task of constitution of adjudication if the decision of specific problems were a matter of selecting the labels pasted upon them.

We respectfully submit Your Honors that the court, the three-judge District Court below in the Western District of Texas by seizing upon the label of Dombrowski against Pfister without penetrating through to the context and the meaning in context of that teaching of this Court that the three-judge court has done violence to the realities of the situation as defied logic experience and history and requires reversal.

Now, our facts here Your Honors are from a stipulation between the appellants and the appellees counsel and from the affidavits filed by the individual plaintiffs and the few of their fellow students and the affidavits of the sheriff of Bell County, Texas and his deputies.

That’s the source of the facts here, those stipulation and affidavits.

Very briefly on December 12, 1967, just a little more than four years within the shadow of Dallas, the President went to Central Texas College to make a dedicatory speech.

The night before his arrival, the secret service had a conference with the local police officers of the surrounding cities, with the sheriffs of both counties, the land involved here lies in both Bell and Coryell counties had a conference soliciting cooperation in protection of the defendant — in protection of the president.

On the morning of December 12, the plaintiffs and others, member of the committee, our associates, hearing that this event was going to take place started out from Austin about 60 or 70 miles from Collin and proceeded to the neighborhood of Collin, Texas.

This college is near Collin. Collin serves one of the biggest military reservations in the United States Fort Hood, thousands of troops stationed there, many of them on the way to Vietnam, many of them just returned from Vietnam.

These people at least seven in number and at least in two automobiles proceeded to the area of the college where the president was to speak and when they arrived there, he had begun to speak or was about to begin.

They have their signs, their signs of protest against the war in Vietnam.

Very shortly, almost immediately I think I can say, after their arrival on the scene, violence broke out.

I think I can put in a nutshell the condition of the violence by reference to one item in the evidence, a big burly sergeant was heard to remark, “Let me add them, they’d never seen blood.”

There were 50 cops, their signs were torn to shreds, it was a dangerous situation.

Potter Stewart:

On the basis of those of facts, I have a little difficulty seeing how they fit within the language of the Texas statute appearing on the bottom of page 3 and the top of page — above page 2 and the top of page 3 of your brief.

David W. Louisell :

That is correct.

I don’t see how it was possible.

Of course, we are dealing here with the rural area, a non-lawyer justice of the peace and so forth, how it was possible to concede that that statute would have any application anything that these plaintiffs had been involved in.

Potter Stewart:

Because —

David W. Louisell :

I want to enlarge if I may.

Potter Stewart:

The statute seems to require at least some kind of noise, doesn’t it?

David W. Louisell :

Precisely.

It just had nothing to do with this particular statute with any of the facts that the record shows.

Potter Stewart:

It either noise or something it can — indecent exposure.

David W. Louisell :

That’s precisely right.

Potter Stewart:

Or they displaying of a weapon.

David W. Louisell :

Whoever as the statute reads, whoever shall go into or near any public place or into or near any private house and shall use loud and vociferous or obscene vulgar or indecent language, or swear or curse, or yell or shriek, or expose his or her person to another person at the age of 16 years or over.

Another statute of course rules under 16 or rudely display any pistol or deadly weapon in a manner calculated to disturb the person of person’s present at such place or house shall be punished by a fine not exceeding $200.00.

Potter Stewart:

I suppose that could be argued that the use of not of loud and vociferous certainly, but the use of obscene vulgar or indecent language could be by writing rather than orally.

David W. Louisell :

Oh!

Undoubtedly but there’s no indication that there was any obscenity involved in the language here or any indecent protest involved in the language.

The important thing to stress it seems to me in the study of the facts here that despite of the occasion and there were about 25,000 —

William J. Brennan, Jr.:

Who do you represent counsel?

David W. Louisell :

I represent the appellants, the sheriff, the county attorney and the justice of the peace. Despite —

William J. Brennan, Jr.:

I confess I’m confused.

You just conceded with statute and the lack of ability.

David W. Louisell :

I say that they were charged.

The charge under the statute did not cover any of the conduct that the record alleges.

William J. Brennan, Jr.:

I thought the three-judge court would struck down the statute for overbreadth, did they?

David W. Louisell :

It struck down the statute as nearly as one can tell for overbreadth and it struck it down in the abstract and it’s specifically said it wasn’t examining into the application of the statute.

William J. Brennan, Jr.:

Well, your position that is, is what?

David W. Louisell :

Our position is twofold.

First of all, that in the situation that developed here with a dismissal of these foolish criminal charges under the so-called “disturb or dist the peace” complaint that had been filed.

The dismissal of those charges and the complete absence of the scintilla of indication that the State of Texas was using this statute to repress freedom of speech rendered the case surely an advisory proposition, and that the three-judge court should have grant the motion to dismissed.

That’s the first proposition.

The second proposition is that if you do have to reach the question of the statutes constitutionality or if the court below had to on its face did as clearly nothing unconstitutional statute as vague or overbroad.

Earl Warren:

Do you conceive that as it was interpreted the law that it was unconstitutional?

David W. Louisell :

They didn’t interpret it below Your Honor.

That — I will excuse that, I mean they didn’t apply it to the facts.

You will note from the opinion of the court below on page 89, the court said before we discuss the issues presented as to the merits of this controversy, it may be wise to state what is not involved, at the top of page 89.

This case does not involve in any way an appraisal of the constitutionality of the application of the statutes to the plaintiffs.

We do not evaluate whether Article 474 was constitutionally applied to these plaintiff’s activity.

Our sole concern is the determination of whether Article 474 on its face is — and so forth unconstitutional.

William J. Brennan, Jr.:

But with the injunction —

David W. Louisell :

The injunction and I must admit it is couched in very unusual format.

The injunction comes at the very end of that opinion on page 92 at the very bottom of the page.

William J. Brennan, Jr.:

There is probably a declaratory judgment that the statute is impermissibly and constantly broad and to injunctive relief against the enforcement of Article 474 is not worthy insofar as any specialized guarantee under circumstances, is that it?

David W. Louisell :

That is correct.

David W. Louisell :

And it —

William J. Brennan, Jr.:

Is that all you gamble the way with orders?

David W. Louisell :

That is all we have by way of a judgment in this case.

William J. Brennan, Jr.:

And is that what you recourse for review?

David W. Louisell :

And that is why it’s here, that is the appeal was taken.

William J. Brennan, Jr.:

And you say that what we should do is reverse that order that you brought it, and what, remand the direction to dismiss the complaint?

David W. Louisell :

That would be the correct procedure, reverse with instructions to dismiss the complaint as utterly a non-existent controversy.

William J. Brennan, Jr.:

We never reverse the case of a moot case and vacate it.

David W. Louisell :

I believe — yes Your Honor.

But, it would be —

William J. Brennan, Jr.:

This is a non-existence of a non-existing controversy?

David W. Louisell :

That is precisely right, and I think that can be shown by — if you wish, I get right into that.

I might just mention a little more of the chronology here in case it isn’t completely clear, the point I wanted to stress about the facts is that no state official, no state trooper, no sheriff, no city policemen did anything to inhibit these people coming in making their protest.

Abe Fortas:

Counsel, may I ask you this question.

You have two problems here as I understand this case.

One is the Dombrowski issue of jurisdiction, the other is a question as to whether this statutes unconstitutional on its face.

Now, what actually happened here is that there was a criminal prosecution of these people who are here as appellants, and that was dismissed.

No basis for them and the statute according to the Texas courts, that’s not this case.

Subsequently —

David W. Louisell :

May I just state the exact thesis of the dismissal logs that it took place on the federal enclave and was not even within the jurisdiction.

Abe Fortas:

Alright, subsequently, this suit was instituted by the people who appear here as appellees.

David W. Louisell :

Correct.

Abe Fortas:

And the — before three-judge court, that three-judge court granted a declaratory judgment and entered the order that you said, men said we state the mandate and we won’t actually enter an order of injunction right now but a declaratory judgment was granted, is that right?

David W. Louisell :

Well, they said they would await any further injunctive order until a meeting of the Texas legislature, which legislature has convene —

Abe Fortas:

Alright, they grant — they did say that plaintiffs are entitled to a declaratory judgment and that they won’t do anything further by way of injunction until after the Texas legislature met, is that right?

David W. Louisell :

But they also said that plaintiffs were entitled to an injunction.

Abe Fortas:

I understand that.

Now, what your argument here is that there was no jurisdiction under Dombrowski to entertain this action, is that right?

David W. Louisell :

That is correct.

Abe Fortas:

And do you also argue that if jurisdiction lies and nevertheless a statute is not unconstitutional on its face?

David W. Louisell :

Precisely, those were the two points that I wish to emphasize.

Now, to make the rest of the chronology very brief, remember if I may say this that it was the military police who detain these plaintiffs, and it was only after they had detained and that they were brought into the presence of the state people that they were taken by the state people to the jail were this charge which it hadn’t been dismissed because of the federal enclave, certainly, would have had to be dismissed for the reasons already suggested from the bench.

They were release on bail.

Their attorney promptly came and got them release on bail, and it was on December 21st that they started this three-judge suit.

On February 13 as I already mentioned, all these criminal charges were dismissed, February 13, 1968.

On February 15 therefore, the defendants, the appellants here, defendants in the three-judge suit move to dismiss the suit for the reasons already suggested from the bench.

Counsel for these appellants wanted the motion, in fact, he made a special motion to have his motion to dismiss her at first, but the court insisted on merging the motion to dismiss with a hearing on the merits and filed the opinion that we’ve just read from that concluding order part of it on April 10th.

There was a motion for a new trial that was denied a so-called the addendum opinion written and the appeal was taken to this Court.

William J. Brennan, Jr.:

On page 18, I gather, those are the copies of the plaintiff files —

David W. Louisell :

That is correct.

William J. Brennan, Jr.:

Now I am just confused.

Are you saying that that complaint is not taking charge of the Section 474?

David W. Louisell :

I’m saying that I cannot concede how that complaint would make a charge that is a sustainable charge under 474.

William J. Brennan, Jr.:

(Inaudible) lawfully and willfully, I guess that may disturb the peace, is that right?

David W. Louisell :

That’s right.

Remember, this was a form of course in print, it looks as though it were a new document, but it was a form merely filled in by the justice with those —

William J. Brennan, Jr.:

Well, this is not a charge of 474, was it?

David W. Louisell :

Well, Your Honor, it was intended undoubtedly by the lay justice of the peace to be in charge, but you don’t charge a person with disturbing peace.

You may as a preliminary matter hoping for a plea of guilty, but his sustainable legal charge would have to be in the language that you’re complaining about, that they did viably and vociferously in a public place and so forth.

Just like you don’t charge a man with murder, you charge him with having on such and such a date.

William J. Brennan, Jr.:

I know.

What I was trying to get at, are you telling us there’s no reason Rule 6 — 474 before us and never has been a rule of case, is that right?

David W. Louisell :

That it never was a valid criminal charge.

William J. Brennan, Jr.:

I know.

David W. Louisell :

— made against these people.

William J. Brennan, Jr.:

That’s not my question.

Are you telling us that this complaint makes no charge in the 474 and therefore, no question about it based otherwise that 474 is even in this litigation?

David W. Louisell :

I’d say that 4 — this was not a sustainable legal charge under 474 in my judgment.

But I don’t suppose that’s too important because in any event, this was dismissed.

This was dismissed because of the federal enclave proposition.

David W. Louisell :

But have not been dismissed Your Honor because of the federal enclave.

It seems to me that the justice unless it where amended correctly to state a charge, would have had to throw it all upon motion of the defendants, and he didn’t certainly the criminal Court of Appeals would’ve thrown that.

And therefore when they come into federal court, with a three-judge suit, there’s just no real fight of any true kind to complain about.

Now, if I may come to the substance of the case as already been indicated from the bench from a legal viewpoint, this really merges into the two points you indicated Mr. Justice Fortas, the advisory point and the question of the official so-called unconstitutionality of the statute.

In addition to the cases in our brief on the advisory point, this Court will remember just of the last term that comprehensive review of the whole Frothingham problem in Flast against Cohen where the court had occasioned to go, I think to the philosophic depths of the whole notion of justiciability and the advisory opinion as a function of it.

And in addition to the case as cited to in the brief, I invite particular attention to cases as old as the famous Muskrat case and even older, the case cited in the Flast against Cohen opinion, California against the San Pablo Railroad, and the other case cited in the Flast opinion.

But if really seems to me, it really seems to me that the most recent cases of this Court just the Princess Anne County Commission case decided at this very term wherein even tending order was set aside because it was ex parte with no chance for an advisory exchange.

That case although brought up by the appellees I think is excellent authority where realistic appraisal of whether there was any contest, any genuine justiciable controversy before the federal three-judge court.

On the constitutionality of the statute, if that has to be reached, let me just say that if this statute is on Constitution when he brought is guilty of overbreadth or of vagueness, what about our California comparable Section 415 of the Penal Code?

What about the New York’s Section on disorderly conduct revised as recently as 1965, Section 24.20 of McKinney’s New York statute?

What about the Connecticut statute that is set forth in detail in the case we cite, the case of Barber against Kinsella?

What about the Minnesota statute to pick up the western jurisdiction?

Minnesota statutes annotated Section 609.72 even the American High Institute hasn’t been able to do anything much more satisfactory than this Texas language.

In its proposed Section 250.2 on disorderly conduct makes unreasonable annoy or offensively course utterance and so forth.

I submit in confidence that a condemnation of the Texas statute written of course not scientific judge and not so many decibels, but in the common part of the country, it’s perfectly beyond the path on its face as unconstitutional.

If it’s even a been or it can ever it is applied in such a way is to deny people their first amendment rights or to inhibit in any realistic sense, not only this Texas law, but federal law under this Court’s holding Monroe against Pape provides a very fine remedy —

William J. Brennan, Jr.:

Well, since that (Voice Overlap) this complaint was dismissed wherein the course of this civil proceeding in California, are you also making the argument that in mere fact that the dismissal now remove any basis upon which three-judge court that either render a declaratory judgment or a comfortable relief there’s nothing will enjoin, no prosecution to enjoin and nothing about what’s to give a declaratory judgment since there was no threat of invoking the statute against these people, did you notice that?

David W. Louisell :

Not precisely that because if in fact the threat of the statute’s application to inhibit First Amendment rights, lurked in the background like in the Dombrowski case —

William J. Brennan, Jr.:

What do you do with Zwickler and Krueger?

Zwickler and Krueger where we set wholly, when we set back to the three-judge court, you said no, this may not be a situation for declaratory judgment at all.

And there are elements required to maintain the declaratory judgment.

We told them they couldn’t have any injunction in that case each time to post to a declaratory judgment but only if that’s the proper suit or a declaratory judgment for such (Inaudible), well then the element is in control, is that what this is?

David W. Louisell :

Not at all.

In that case, of course, there’s a very serious basic substantive conflict of offering a free speech —

William J. Brennan, Jr.:

What do you mean so anxiously to give us to say that they were wrong on reaching the constitutional question of this — on the basis?

If it was, then it was not a proper suit for declaratory judgment or injunction otherwise, is that the end of the case?

David W. Louisell :

That is, it isn’t the proper suit.

William J. Brennan, Jr.:

We don’t have to say they were wrong or the statute and wholly that the statute is unconstitutional, that’s the basic rules.

David W. Louisell :

Well, I don’t say you have to reach that question, no.

But if you do reach it, I do say the answer is very clear and I think that could a situation is very clearly distinguishable, there as I read the opinion of this Court.

William J. Brennan, Jr.:

I don’t understand why you want to distinguish it, I’m trying to help you.

David W. Louisell :

Well, (Voice Overlap) the Krueger case has gone back to the District Court where there is relief —

William J. Brennan, Jr.:

No, what you said and what we said included that.

Yes, in the way a declaratory judgment even though not to an injunction under the circumstances is not much different, unless what, it’s not even entirely to the declaratory judgment unless you’re satisfied with the elements which make up that, that’s that true facts aren’t satisfactory.

David W. Louisell :

That is right.

I’d like to reserve the rest of my time for rebuttal.

Earl Warren:

You may.

Mr. Clinton.

Sam Houston Clinton, Jr.:

Mr. Chief Justice, may it please the Court.

I think in the essence what counsel was indicating when you said that this statute was not applicable, was that my clients were not guilty of violating the statute, and of course, that’s clear.

It not been has much to do with the issue but I gather that’s what he was saying, which brings us to what this lawsuit is all about, the University Committee and the named plaintiffs feeling that there was the chilling effect that this Court has spoken up in similar type cases.

A chilling effect on the exercise of their First Amendment rights, they sued in the court below and the three-judge court was convened.

They asked for three things essentially, declaratory relief that Article 474 was basically invalid.

Second —

William J. Brennan, Jr.:

The question in fact where these complaints, these criminal complaints dismissed before that proceeding was concluded?

Sam Houston Clinton, Jr.:

No sir — oh, before it was concluded I’m sorry.

The underlying complaints were dismissed after the three-judge court had been convened and the manner was noticed for hearing.

William J. Brennan, Jr.:

But before it?

Sam Houston Clinton, Jr.:

But before we actually got before the court for our hearing.

William J. Brennan, Jr.:

They got it for the price that they had been dismissed?

Sam Houston Clinton, Jr.:

By motion (Voice Overlap) by motion, yes sir.

William J. Brennan, Jr.:

Well, then what — how do you justify the three-judge court going on with your case?

Sam Houston Clinton, Jr.:

The same way that the three-judge court justified it with emphasis if I may.

The three-judge court found based upon uncontroverted evidence before it in this case in the form of agreed, a testimony in a form of agreed affidavits and if the people were in court so testified, this is what they testified to.

Not only the three plaintiffs, but the two appellants who were a part of the party of seven represented to the court under oath that they had felt the chilling effect of these prosecutions and worse and had seized all activities in behalf of the University Committee to End the War in Vietnam that they knew others who had done so and it was all for this reason that the court said we do have a not just a broad curtailment of activities, but a suspension of expression altogether, and went on to find that the dispute was the liable, a very liable because here people, we’re saying to the court were no longer taking part in these activities that we have before.

We were handled in the way we were handled up in Bell County.

William J. Brennan, Jr.:

Was there anything the stipulation whether there was any subjective if the statute was going to be enforced against others in this situation, a protest against Vietnam?

Sam Houston Clinton, Jr.:

There was a suggestion in two ways;

One, in the pattern of a conduct of at least two of the defendants — I’m sorry, the appellants here who were the defendants below.

The sheriff and the justice of the peace that well, to put bluntly the sheriff said in the record that, you folks get out of my county and don’t come back, we don’t like people like you around here.

Sam Houston Clinton, Jr.:

The JP said, the justice of the peace said, when the people come before him, we don’t like traitors in this county and I’m setting a $500.00-bond on your case although the maximum fine was $200.00 to make sure that you come back because I want to try this case.

There are other matters —

William J. Brennan, Jr.:

I suppose that all was flat on the complaint to dismiss —

Sam Houston Clinton, Jr.:

Well, that particular part collapse, but the court — but you were asking about any continuing threat, and here, they’re telling them don’t come back.

If you do, we’re in effect I think —

William J. Brennan, Jr.:

Is there anything happens then — where any of these folks prosecuted for anything?

Sam Houston Clinton, Jr.:

There’s no evidence that any —

William J. Brennan, Jr.:

Any demonstrations?

Sam Houston Clinton, Jr.:

Well, the people say they are not going to demonstrate in Bell County as long as the sheriff acts like he does and the JP puts the on the $500.00 invokes the statutes the counsel now tells the court we’re in no manner guilty of, and that’s the thrust of their basis of saying that they are therefore not.

Thurgood Marshall:

Is this declaratory judgment stop him from saying I don’t want you in my county.

If you come near again, I will give you $500.00 fine?

Sam Houston Clinton, Jr.:

No sir, declaratory judgment that — may I preface to that answer by saying actually the court I think has not — the court below has not issued either declaratory judgment or an injunction.

They have said in an opinion that we are entitled to it, but there’s been — they’ve state their mandate, pending the —

Byron R. White:

That’s the final judgment?

Sam Houston Clinton, Jr.:

I beg your pardon?

Byron R. White:

Do you think there’s a final judgment or purpose to sustain any jurisdiction?

Sam Houston Clinton, Jr.:

Well, I mentioned that it — at the beginning of my motion to affirm, but since it has been used in other this similar type thing has happened in particularly some reapportionment cases, I figure that it was probably fine when the court kind of thought so too.

Thurgood Marshall:

Well, there’s a judgment here.

Sam Houston Clinton, Jr.:

There’s the opinion — we have not entered any kind of order of injunction.

There’s no language agreed upon as to some sort of order that would follow the opinion.

The reason that the court did that, it sets out they state their mandate because the legislature was coming into session.

They wanted to give the Texas legislature a chance to work on the statute.

Then, the legislature it happened almost coincidentally.

It met in special session as distinguished from regular session and adjourned without taking any action because of the limited nature of that section.

Before then we could go back to the three-judge court for any further action, papers where filed in this Court and the mandate was state further.

And so, that’s the situation as far as the outstanding nature of any kind of order, there just isn’t any way we have the opinion and it’s been state, the mandate was state first by the court below would now by this Court.

William J. Brennan, Jr.:

I would like to see — are you suggesting if the law enforcement with authority of the county, that would demonstrate they now looked at you, we don’t like that space and if you try to demonstrate here we’re going to prosecute you under the statute that in and of itself, that’s not to authorize a kind of District Court that would consider the constitutionality of the statute mentioned by the law enforcements, and if they found it unconstitutional on its face to enjoin its (Inaudible), is that it?

Sam Houston Clinton, Jr.:

Well, though I think there’s more to it.

There’s more to this case than that.

William J. Brennan, Jr.:

Well, it wasn’t the beginning but what was their absent complaint more than that?

Sam Houston Clinton, Jr.:

I’m satisfied that the court below took into consideration, perhaps the good faith of even the dismissal of the complaints for example.

You see, there is absolutely no evidence in this record that these events did in fact take place on what is now described as a federal enclave.

There is simply no evidence that that’s so.

In fact, circumstantially is if counsel says, the military police first put their hands on the protesters and then delivered them into the hands of the deputy sheriff while still on a college campus suggest it, maybe it wasn’t truly on the federal enclave where criminal jurisdiction have been ceded.

And so I say first that I think the court below may be looked at the timing of the filing of a motion to dismiss and the grounds of the motion to dismiss and the fact that there was no evidence in support of it, plus the court obviously looked to the things that I’m suggesting should be looked to the continuing suspension by these persons of their own activities in Bell County, particularly.

And I think it ought to be said about Bell County that housing or being the home as it is all Fort Hood and being a military installation, this particular committee that I represent looks upon it as a proper place in which to spread its views, and so, it is more than just borrowing or these people feeling they can’t go to Bell County but the Bell County is a place that they think they ought to be, as distinguished from even some of the adjoining counties, it is of special significance to the —

Byron R. White:

That statute is the only breach of peace statute?

Sam Houston Clinton, Jr.:

It’s the — it no, it is not the only one.

It is the general statute —

Byron R. White:

How could they charge that kind of statutes?

Sam Houston Clinton, Jr.:

Well, we allege that that’s what we involved and the appellants here denied in their answer that the 474 was unconstitutional and we stipulated in that stipulation that what was in issue was Article 474.

All of which, it was raised before the three-judge court on the motion to a new trial analyzed by a three-judge court and the three-judge court says clearly, we’ve been litigate in Article 474 here, we would have been here to start with.

Byron R. White:

(Inaudible)

Sam Houston Clinton, Jr.:

No sir.

But I want to answer the other question because behind Article 474, there are other statutes that may be said to relate to breach of peace but this is the one that is — has the short title, disturbing the peace, and this is the one that we’ve all agreed that was raised here and was involved.

One other sort of technical matter, what you have before you or what we have before us, it was dismissed was a complaint filed by the sheriff or a deputy sheriff before the justice of the peace, and that insofar as counsel says that it is inadequate to allege an offense, of course we don’t stand trial necessarily on the offense, we stand trial on any information that is later issued by the county attorney based upon that charge has been found.

We have to make bond, we go — we put to jail on the charge and we have to make bond to be release from the charge.

William J. Brennan, Jr.:

And you don’t get to know the facts until the only information.

Sam Houston Clinton, Jr.:

I’m sorry?

William J. Brennan, Jr.:

You would not know until the information what charge you have to defend against.

Sam Houston Clinton, Jr.:

Right.

What’s specific part of that very broad and multi-positive —

William J. Brennan, Jr.:

What court will the information be charged?

Sam Houston Clinton, Jr.:

The justice of the peace in this instance, the same justice of the peace who made — who —

William J. Brennan, Jr.:

And that was, is there appeal de novo or something?

Sam Houston Clinton, Jr.:

To the — no, there’s — yes.

There is an appealed novo, I’m sorry.

It depends on the amount of fine as to which direction you go.

Let’s say generally, they would be an appeal de novo.

William J. Brennan, Jr.:

No indication that the justice of the peace had filed before him or on the appeal de novo that any defense, constitutional or otherwise would not be entertained?

Sam Houston Clinton, Jr.:

Well, after the justice of the peace was saying what he had done, we didn’t look forward to a trial before him.

He said it to as soon as they were brought before him that he didn’t like traitors in his county, and then he put — imposed — he said well, you can plead guilty and the fine would be $200.00 which is the maximum incidentally.

Or you can make a bond of $500.00.

And when our plaintiffs — I’m sorry, when the appellees who are plaintiffs below protested that that was rather excessive, he said well, I just want to make sure you’re here so I can try this case.

I want to be — they did not believe that they had much future here before him.

Earl Warren:

We’ll recess now.