Staub v. City of Baxley

RESPONDENT:City of Baxley
LOCATION:Hazlehurst Manufacturing Company

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: State appellate court

CITATION: 355 US 313 (1958)
ARGUED: Nov 18, 1957 / Nov 19, 1957
DECIDED: Jan 13, 1958
GRANTED: Jan 14, 1957

J. H. Highsmith – for the appellee
Morris P. Glushien – for the appellant

Facts of the case

Rose Staub was convicted and fined for attempting to organize a branch of the International Ladies’ Garment Workers Union at Hazlehurst Manufacturing Company. She violated an ordinance in the neighboring town of Baxley, where many of the Manufacturing Co. workers lived. That ordinance required anyone soliciting members for a union to apply for a permit from the mayor and city council. The mayor and city council had unlimited discretion to grant or deny the permits for any reason. Staub argued that the ordinance violated her constitutional right to free speech. The Court of Appeals of Georgia affirmed the conviction, but did not consider the constitutional question because Staub did not attempt to comply with the ordinance. The Supreme Court of Georgia denied certiorari.


Does an ordinance requiring union organizers to obtain a permit before recruiting violate free speech?

Earl Warren:

Number 48, Rose Staub, Appellant, versus City of Baxley.

Morris P. Glushien:

Mr. Chief Justice, may it please —

Earl Warren:

Mr. Glushien.

Morris P. Glushien:

May it please the Court.

This case presents a dramatic example of a Southern community, frustrating and delaying union organization for nearly four years under the guise of enforcing a patently unconstitutional ordinance.

Felix Frankfurter:

Couldn’t be any different if a Northern community did it, would it?

Morris P. Glushien:


This is the — I — there was a — accord to what I’m going to say though, Mr. Justice Frankfurter.

What I wanted to say next was that this ordinance is represented of the great and growing number of such ordinances found, so far as I researched presently discloses throughout the south and not the north which is why I made a point I did.

A union organizer was convicted from the City of Baxley, Georgia under a licensing ordinance and this is the ultimate appeal from the conviction which has been sustained through the Georgia Courts.

In February 1954, two organizers of the International Ladies’ Garment Workers Union appeared in the City of Baxley.

They had been sent there to organize or try to organize the plant of the Hazelhurst Manufacturing Company which is located in Hazelhurst, Georgia, a town which neighbors Baxley.

The Hazelhurst Manufacturing Company is a company engaged in interstate commerce.

It draws its workers both from the town of — the City of Hazelhurst and also from the City of Baxley.

And these organizers were staying at a motel in Baxley and were trying to solicit among others, residents of the City of Baxley.

I might add parenthetically that the City of Hazelhurst has an ordinance which is almost verbatim, a copy of the Baxley ordinance.

On this day, on February 15th, 1954, when they first came there on a Monday, they approached two workers at the home of one of them on the porch of one them, the workers, told them that they were trying to get the workers of the Hazelhurst Manufacturing Company to join the union and discussed the union with them, arrange or survey to hold a — another meeting on Friday, that written on the case.

And that meeting took place Friday at noon again in the home of one of the workers.

At that meeting there were four workers present together with the two organizers.

At the meeting, the organizers discussed with them the advantages of joining the union, urge them to join, told them about the membership cards that they had, told them among other things that the dues were 64 cents a week, and a discussion went on concerning the advantages and disadvantages of joining the union.

Nobody joined during that noon meeting.

But there were some further discussion about having a further meeting that evening at which additional workers would be present to be held at 7 o’clock that night.

But before that meeting could be held, the Police Chief of Baxley arrested these two organizers.And they were charged with the offense, I’m quoting.

“The offense of soliciting members for an organization without a permit or license.”

Now, the ordinance in question was passed in 1949 and as appears from the original question and answer transcript, Mr. Highsmith, the city solicitor, my learned adversary, stated there that he thinks he wrote that ordinance.

Now, the ordinance appears on pages 9 to 11 of the record and I would like briefly to summarize it.The ordinance is a 9-section ordinance, starts at the bottom of page 9.

And essentially, the first section provides that before any person — it doesn’t have to be, mind you, a person who was paid for his actions or who receives any remuneration of any kind.

Any person who solicits membership for any organization, union or society of any sort which requires from its members the payments of membership fees, dues or is entitled to make assessments, must apply to the Mayor and to the City Council for a permit to solicit members.

Section II then goes on, “To set forth the kind of information that must be provided in the application for the permit among other things that requires you to name the officers of the organization, and whether you are a salaried employee of the organization.”

Section III goes on to say that, “This application shall be submitted to a meeting of the Mayor and the City Council and provision was made for a hearing.

Morris P. Glushien:

And Section IV is a critical section indeed.”

I like to read it to you.

It says that, “In passing upon such application, the Mayor and Council shall consider the character of the applicant, the nature of the business of the organization for which members are desired to be solicited, and its effects upon the general welfare of citizens — of the citizen of the City of Baxley.”

The next section was on to talk about the grant or refusal of the licence on how — how that is to be determined.

And then Section VI is another critical section.

It provides that in the event that person is a salaried employee or an officer, then the permit shall only be issued upon payment of a slight little fee of $2000 per year, and to make sure that it’s very clear, it goes on to say, “Also $500 for each member obtained.”

And then, the remaining sections provide that penalties for non-compliance of the ordinance or appeal at any conflicting ordinances and a separability clause.

What is it?

Morris P. Glushien:

Penalty under this simply says that it would be the same as provided by Section 85 of the Criminal Code, and I’m sorry to say Your Honor, I don’t know what that is except that the particular penalty in this case on the conviction was a fine of $300 or 30 days in jail.

Now, this ordinance, this arrest took place and the trial followed in the Mayor’s Court of the City of Baxley.

In the Mayor’s Court, the two organizers, Staub and Merritt, represented by a competent counsel who raised in detail or very carefully, the same federal constitutional questions and also questions under the state constitution which we hope we are presenting to this Court.

He did show that, and I may add had that these constitutional questions were preserved at every later stage of the appeals through the Georgia courts.

They were convicted, as I said, and fined of $300 or 30 days on each of the two organizers to receive the same penalty.

And parenthetically, I should say that we have here only the Staub appeal, and by stipulation of counsel, it is agreed of the outcome of the Merritt conviction shall await the — and be handled in the same way as the Staub case.

Now, in an effort to try to dispose of this more speedily, the union instituted a declaratory judgment action in the Superior Court of Georgia.

I think immediately after the arrest as I recall, the Superior Court judge dismissed the complaint in the declaratory judgment action of which we sought to restrain the holding of the trial on the ground that the statute, the ordinance was unconstitutional.

And we took an appeal from that dismissal directly to the Supreme Court of Georgia which sustained the dismissal of the declaratory judgment complaint.

And thereupon, the Mayor’s Court conviction or a criminal proceeding as I should say, continued.

After the conviction took place, we took an appeal to the next layer of the Georgia courts which is the Superior Court.

I want to tell you that in order to take such an appeal, you have to file a bond.

And immediately after the conviction on — in March 1954, the very same afternoon or evening, our counsel presented that fine to the clerk of the court and asked, “Are you the clerk of the Mayor’s Court?”

Because on the Georgia procedure, if she was the clerk of the Mayor’s Court, then she had it countersigned or approved the bond.

If there wasn’t a clerk, the mayor himself had to do so.

Being assured that she was the clerk of the Mayor’s Court, he handed her the bond with typewritten words on it saying the clerk of the Mayor’s Court, she signed it.

We took the appeal to the Superior Court and after a while, the city moved to dismiss on the ground that she wasn’t really the clerk of the Mayor’s Court.

She was only the clerk of the City Council.

And the Superior Court threw out that appeal without appeal.

Well, on a further appeal to the Georgia courts, that was reversed and it came back to the Superior Court with instructions to hear our appeal on the merits, the bond was sufficient.

There, we were again on merits.

This time the Superior Court denies the appeal again, and despite the fact that the constitutional questions had been fully presented, it will — no opinion at all denied on the conviction.

Morris P. Glushien:

We then appealed to the Court of Appeals which is the next mayor and the Georgia structure.

In the Court of Appeals, the conviction was affirmed again, this time we could get an appeal.

But the Court didn’t pass on the constitutionality at all and said it’s unnecessary to do so, and why?

Well, two reasons, the Court assigned.

One, that if Staub wanted to challenge this ordinance, she should have applied for a permit first.

And having failed to apply to affirm it under the ordinance, she had no standing to challenge.

This ground by the way, is one which had been ruled out specifically by this very Court in Lovell against Griffin, not too many years before, also at Georgia case and which was presented to this Court of Appeals again in — in our briefs and again on rehearing, again they — they never mentioned Lovell against Griffin.

But as I say, held that we had no standing to challenge this ordinance because we haven’t applied for a permit under it.

The second ground they assigned was that we had challenged the ordinance as an entirety instead of specifying which of these nine sections we thought were unconstitutional, but we thought all of them unconstitutional.

The ordinance only relates to one subject matter, and we challenged the entire ordinance.

And as we make clear in our brief, both under Georgia practice, that was the proper procedure.

The Georgia Supreme Court has held that.

And a state court cannot deny our rights to challenge an ordinance on federal grounds by preventing us from attacking an entire ordinance when in fact the entire ordinance is invalid.

Anyway, the Court of Appeals denied our application for hearing.

The Supreme Court of Georgia denied an application for certiorari without any opinion and we then came to this Court which noted probable jurisdiction.

Now, we challenge this ordinance on a number of grounds, claiming first that it violates our rights under the First Amendment to engage in associational activities to speak freely, to write freely to assemble.

That it violates our rights under the due process clause of the Constitution, that it violates our rights under the Equal Protection Clause.

And finally, since this is a company which engages an interstate commerce, the workers of which in Hazelhurst Manufacturing Company.

That factually has no power to present qualifications on the right of the organizers to urge the workers of this company engaged in commerce to join a union of their choice.

William J. Brennan, Jr.:

Well, do I understand though that in view of the concession that Section VI is invalid, would be no occasion for you to argue the in — invalidity of that Section?

Morris P. Glushien:

I assume so, sir.

But I want to go beyond that to say that I trust that this statute or ordinance would be considered not alone on Section VI but in other aspects heard, case laws.

William J. Brennan, Jr.:

No, I’m talking — I — I didn’t intimate that, I suggest though that — am I correct that in the light of the concession of including the VI, and that’s not now before us?

Morris P. Glushien:

Well, Mr. Justice Brennan, I agree that the exorbitant fees in itself do make the ordinance unconstitutional as it’s conceded.

But our argument goes much beyond that in this respect —

William J. Brennan, Jr.:

I understand that if that’s right —

Morris P. Glushien:

— even on that section, even on that section.

What I want to argue to you is that any license fees of any size as a predicate for organizing is unconstitutional.

Now —

William J. Brennan, Jr.:

Is that the question before us?

Morris P. Glushien:

I beg your pardon, sir?

William J. Brennan, Jr.:

Is that question of fees before us at all?

Morris P. Glushien:

Well, I say to you that the — the entire ordinance is before you because she was convicted not for violating Section VI but for violating the ordinance.

That was the conviction, and what I am concerned about is this, let me make it perfectly plain.

There are a whole draft of such ordinances now throughout the south and growing in number.

We found them in every — in about a dozen states all, and more being enacted everyday.

There have been thus far, two challenges in the federal courts, two such ordinances.

One, the City of Carrollton, Georgia and the other, in Russellville, Kentucky.

In both instances, when the litigation began both communities hastened to amend their ordinances.

An accounted ordinance, there are no — I always have felt that Carrollton one and our ordinance were competitors for the — for the price I was speaking which were the most exaggerated.

Our ordinance had a $2000-annual fee and with — plus $500 for each member obtained.

The Carrollton ordinance provided for $1000 down payment so to speak with a $100 a day.

Well, when the Carrollton litigation been all the while, Carrollton changed its ordinance to — to knock out the — the daily fee and made it $1000 flat.

In the Russellville case, the Kentucky case, the ordinance was a somewhat more restraining one.

It provided for a fee, flat fee of only $250 for certain categories and a 150% in other categories.

William J. Brennan, Jr.:

Are you suggesting that in any even, you want us to say that any flat fee, even a dollar —

Morris P. Glushien:

Well, if you’re going —

William J. Brennan, Jr.:

— you wouldn’t make the Section unconstitutional?

Morris P. Glushien:

Your Honor, if you’re going to get to the point where it’s a pure registration statute with a dollar fee merely to police the — or to process the application, I think we’re getting to a somewhat more difficult question.

But if you say it’s a dollar fee for the right to organize a fee, a license fee, I think that would be unconstitutional under your decision and for — I wanted to — if I my digress from my argument.

William J. Brennan, Jr.:

The flat fee, you mean?

Morris P. Glushien:

Because it’s a flat fee on a First Amendment guaranteed right for a further reason.

That if this is an operation in interstate commerce.

Then I think any flat fee on the right to organize in such an — in such an area is again unconstitutional.

William J. Brennan, Jr.:

That would apply to 10 cents then, wouldn’t it?

Morris P. Glushien:

If it’s a flat fee, my position is, sir, that it’s unconstitutional.

I thought you’re attacking the permit and wasn’t the requirement of the permit.

Morris P. Glushien:

Well, the permit and the fee go together.

To get a fee — to get a permit, if you are a salaried employee, you have to, in addition, pay this license fee of $2000 plus $500 for each member obtained.

This — I think the — the violation here was the contended violation, pardon me, sir.

Morris P. Glushien:

Now, I think it is evident under the decisions that the First Amendment rights of association and press and assembly have been infringed by an ordinance such as this which provides that the Mayor and the City Council from denying a permit, if they think it is “not in the best interest of the citizens, uniting the general welfare of the citizens of Baxley that the permit be granted” or they think that they don’t like the “business of the organization for which members have desire to be solicited”.

Mind you, this requirement doesn’t apply only to — to paid organizers, it applies to any person.

And so presumably, one worker urging another worker to join the union of his choice would also be covered by this ordinance.

And I was telling my little daughter at breakfast this morning, presumably, if she urged a little girl to join the girl scouts which is and also an organization, appears that — which charges dues of about $1 a year, that too would be a violation under literal terms of this ordinance.

So, I think it is perfectly plain that this brought an absolute discretion under the many decisions of this Court, is itself enough to render this ordinance unconstitutional.

Now, as Mr. Justice Brennan pointed out, the city concedes that the prohibitory character of the large fees is another reason why this ordinance is unconstitutional.

But our position as I’ve indicated, is that any of my license taxes bond both because it infringes rights under the First Amendment and because in this case where commerce is involved, it infringes rights which the city has no power to regulate.

Now —

William J. Brennan, Jr.:

Well, don’t you suppose the provision for a license and the Section VI are sufficiently separable that provisions for licensing may be valid and to know the others are not, I know your position is they’re not but —

Morris P. Glushien:

Well, I — it’s conceivable, I suppose that a — that if — if the licensing provisions did not require any fee and didn’t have this broad discretionary character, I assume that it may be if you’re getting into a closer area.

That licensing provisions might in some cases be valid, although I got to point out, and then this is again our position, basically that this Court has held in the Murdock against Pennsylvania case and in the Opelika case and others that you cannot require a license fee of this — of any kind of a religious evangelist (Inaudible)

Now, I would think you may have a closer question if it’s a purely — you’re talking about a registration statute where the stranger comes into the community and the police authorities want to know who he is, and they’re not going to delay an unduly by the way in — in exercising his rights so that there’s not a disguised denial of privileged rights in the First Amendment.

Perhaps, you may have a closer contention then.

William J. Brennan, Jr.:

Well, I’m just wondering whether in place of the — face to the flat concession of the invalidity of Section VI.

This case doesn’t now come down to the question of the validity of the license provision alone —

Morris P. Glushien:

Well —

William J. Brennan, Jr.:

— and not a reference to Section VI.

Morris P. Glushien:


Although, I suppose this Court could very well say that on both theory come out both grounds and each separately — separately, this ordinance.

It is now and the conviction therefore should not stand.

I’d — I would like to point out that there are these ordinances in many states which are recounted in our brief on page 31 in note 20 and I don’t think they begin to cover the number and extent of these ordinances.

We find it very difficult to get hold of them.

The — we write to the clerks and one clerk writes back to me as we are about to repeal the ordinance, I don’t think they’re really interested in it.

And other counsel tell me who — who been trying to get all copies of these ordinances for me that the clerks resist very strenuously making them available.

And so I think this is only a small percentage of the actual ordinances in existence but I have done though, and since the brief has been written, we have gathered together a — a number of additional ordinances of somewhat similar character.

And if I may have the permission of the Court, I would like at the end of the argument to add that to – as a supplement to this footnote which list the various ordinances.

We have already given Mr. Highsmith a copy of the ordinance.

Earl Warren:

You may do that and the counsel may — he may respond to it if he wishes.

Morris P. Glushien:

Now, I want to point out one other thing about the ordinances even if that these were much lower than they are.

And this Court had — has recognized this in its discussions of the religious evangelist cases.

Morris P. Glushien:

Even they have a small fee or a relatively small fee, the cumulative effect of such ordinances adds up to a increasingly large burden.

And as these ordinances become increasingly fashionable, the — the real burden is meant to apply that much.

In this case, for example, the Hazelhurst ordinance provided for a $5000 fee.

So the organizer workers of these two — living in this two cities, you would have, theoretically if a $5000 to Hazelhurst, $2000 for Baxley, $500 for each person —

Felix Frankfurter:

She won’t — she won’t —

Morris P. Glushien:


Felix Frankfurter:

— believe those matters, I could prove to you?

Morris P. Glushien:

So, I — I will just spend a few moments then to say that we also think that quite apart from the considerations I have already covered that this ordinance is also invalid apart from the tax itself as conflicting with the National Labor Relations Act insofar as it requires the licensing of — of any organizers.

We think that the — under the decision in Hill against Florida, this Court has held that the licensing of organizers who organize in interstate commerce industries is itself unconstitutional.

Thank you very much.

Earl Warren:

Mr. Highsmith.

J. H. Highsmith:

Mr. Chief Justice and may it please the Court.

I will plead guilty from being from a southern city and also, I would like to say with reference to counsel’s having said that I admitted arriving to the ordinance.

I — as I recall, perhaps I did with the exception as it appears on the original and the minutes of the City of Baxley, the amounts of the license fee were left blank.

I do not attend those counsel meetings.

And my first information of the amounts that when this case was brought to my attention, I then advised the city that — and they — they could not asses that sort of license fee, that it would be unreasonable.

And since then, we have taken the city — taken the position that they could not impose that sort of license fee as it would be unreasonable.

And we — I have no brief for determining the validity of that particular Section VI of the Act.

Of course, the first question that arises in this case is the adequacy or non-adequacy of the federal question involved.

Felix Frankfurter:

Well, before — before you conclude what’s the ordinance, would you mind telling us what Section 85 of the Criminal Code?

J. H. Highsmith:

It provides for a fine, not in excess of $300 or not in — time and not in excess that’s for 30 days I think and that’s what it tells about.

Well, it impose a maximum of $500.

J. H. Highsmith:

Yes, sir, $300.

Yes, sir.

I realized it was going to be quite a long contest about it.[Laughs]

William J. Brennan, Jr.:

Well, is there anything else, Section (Voice Overlap) —

J. H. Highsmith:

But — but —

William J. Brennan, Jr.:

— might — reaching those sentence.

J. H. Highsmith:

It said or, 30 days or —

William J. Brennan, Jr.:

What I mean in this case, where —

J. H. Highsmith:

No, that was a 30 day or —

William J. Brennan, Jr.:

Or the $300.

J. H. Highsmith:

Or the $300, either one would take care of the payments.

As I said, I — I want to discuss briefly the — whether we have actually a decision here by the state court on the — on a federal question on the constitutionality of this ordinance.

It’s true that there has been extended litigation upon.

It was the — have been — the criminal litigation was pending in the Mayor’s Court.

Counsel for the appellants brought an action for a declaratory judgment.

We raised the point on the merit, two points.

One, that when the criminal action was pending and that you could raise that question in that criminal action, that then the Court’s practice was not to issue a restraining order and restrain the criminal action.

Otherwise, since the plea (Inaudible) attacked the ordinance as a whole and didn’t point out any particular sections of it as being invalid that therefore, it was not a proper attack on the constitutionality of the action under Georgia procedure.

The Superior Court does not in Georgia.

As a matter of fact, it’s right in the opinion to say as of — just say we sustained the demurrer or you refuse a certiorari and don’t write — written — don’t give written opinion except in vey exceptional cases.

Our judge never do it.

He did — he did sustain the demurrer to the declaratory action and that was held proper by the Supreme Court of Georgia saying that this was a question they could raise and the criminal’s action, it was pending in the city court and it was not a matter for equity to pass on.

And that was the decision there.

They do have — they came back and it was pried then in the city court.

Now, I want — and on the question and while we’re on the question of the trial, it is I think important in this case for it to be brought out that this case goes further than the case — that the evidence in the case to Thomas versus Collins.

On the trial, it appeared from two of the workers that were present, had testified on the trial before the Mayor’s Court that the organizers in this case solicited money from them, that they told them their dues were 64 cents a week and that if they would pay two weeks in advance, that they would write, then issue them a membership card.

In other words, they were selling membership to this particular time.

We distinguished it from Thomas versus Collins.

And after — on that appeal in Mayor’s Court, some reflection has been made or that the Courts, were just trying to sustain some technicalities.

They do have the rule and a lot of technical rules with reference to certiorari, I think in most every court.

They have the rule that if the Mayor’s Court does not have a clerk, then the mayor approves a bond.

Now, the clerk was not asked, was she a clerk.

Of course, Mr. Glushien wasn’t there and he couldn’t be — he doesn’t make an intention anywhere about that.

The party there was asked.

My friend, Leanne Wilson asked me, “Does the city have a clerk?”

Or that’s what I understood him to say.

“Does the city have a clerk?”

And I said, “Yes, the city has a clerk, Ms. (Inaudible).”

J. H. Highsmith:

Later, she — she was put on the stand and he asked you the question, “What is your idea?

What are your — what is your official position with the city?”

And she said, “Clerk of the Mayor and Council of the City of Baxley.

That was her answer at that time.

And if any misrepresentation was made, it wasn’t the clerk of the City of Baxley.

It was — if the city attorney could speak, then it — it was certainly not a misrepresentation.

There was an issue as to whether he said, “Does the Mayor’s Court have a clerk and do the city have a clerk?”

My recollection in the statement was that he said, “Does the city have a clerk?”

Didn’t — isn’t important in this case except to show there wasn’t any just trying to get these people put out of court on technicality.

We did take the position and he said, “Well, she signed it as clerk of the City Court.”

I might well say we — that he went somewhat out of the record at the same time and it doesn’t — important to me as she signed it.

At the same time, the Mayor signed an approval of the bond over a typewritten signature of the clerk of the city court.

I guess if you do those things without notice and they per se sign them, they sign them without too much notice.

I said I didn’t object to them being signed.

And I made that point that there wasn’t a proper bond and the Superior Court sustained it.

The clerk — the Court of Appeals sent a — that Mr. Wilson could have been misled and that they didn’t want it passed on, on that ground but wanted to hear it, have it heard on its merits and send it back.

Again, we — we raised the same question that they hadn’t, under Georgia procedure, properly attacked here the constitutionality of the order because the rule in Georgia is that one section might be constitutional and another section not constitutional.

And therefore, if you’re on a race, the — the question of the invalidity of an ordinance, you have to point out those particular sections.

Now, that may sound or may not sound like an unreasonable rule.

But that is a practice that the appellate courts have followed there.

The first important case, I recall about it, was Glover versus Rome back in 1931.

That same specific thing was held by the Supreme Court of Georgia.

The next case was in 1945, Anthony versus the City of Atlanta, they held exactly the same thing.

And those cases were pointed out to — by a counsel or two counsels for appellant on this arguments that we had.

We had this specific volume to the Georgia’s report there.

They knew about it but they — they persisted in going along the way that they have gone and the Court of Appeal sustained and the Superior Court judge said that that was good, that they hadn’t property attacked the constitutionality of it and decided it that, the certiorari.

When it got to the Court of Appeals, we made the same argument and the Court of Appeals, as is the rule that they won’t go into a constitutionality of a — of a question if they can decide it without by — without deciding on the constitutionality as always.

I believe that same rule prevails almost universally in this Court too, I believe.

And they held that there has not been, under Georgia practice, a proper attack on the constitutionality of this ordinance and specifically did not pass on that question.

We take the position and very strongly that the Court did decide it on an adequate non-federal ground and that this Court could very properly hold that the Court did do that.

J. H. Highsmith:

And as I understand it, the rule of this Court is that unless there is a question of evasion by the state court, that what the practice — the rules of practice are in a particular state, what that — that state court says they are will be followed but this Court.

Now, of course, if this Court should decide that before Court of Appeals of Georgia and the Supreme Court of Georgia were as furiously as a — say in their brief, evading the issue and there was an evasion, then of course say it could this question on its merits.

Felix Frankfurter:

Did you, in this the Court of Appeals, argue or make the concession that you made here that Section VI is clearly unconstitutional?

J. H. Highsmith:

I — I’ve made a concession that I wouldn’t argue that, that it was not.

Felix Frankfurter:

Wouldn’t it —

J. H. Highsmith:

That it was valid.

In our brief because I took the position that I wouldn’t contend it’s the same.

Felix Frankfurter:

Did you — did you argue the merits, the — of the —

J. H. Highsmith:

Yes, sir.

Felix Frankfurter:

— entire ordinance?

J. H. Highsmith:

I might argue it on the question on the demurrer and on the merits.

Yes, sir.

I did both.

Earl Warren:

We’ll recess now Mr. —