Warren E. Burger: We’ll hear arguments now in Number 48 Original, State of Mississippi against the State of Arkansas. Mr. Ward you may proceed whenever you’re ready.
Mitchell E. Ward: Mr. Chief Justice and may it please the Court. The State of Mississippi has filed this original action asking the Court to make a judicial determination of a disputed boundary line between the two states. The uncertainty of the boundary line is due to the fact that it is located in an abandoned Bend of the Mississippi River but formerly was a boundary but which is now been cut-off by the action of the U.S. Engineers in making a neck cut-off in 1935. When the two states were admitted to the union, the Acts admitting the union made the Mississippi River the common boundary. In the area in question, the river loop westward and southward and then eastward around a long neck of land which was located in Mississippi known as Carter Point, Mississippi and this map have depicted in the Arkansas-Mississippi Refuge Quadrangle was attached to the Special Master’s Report, the Honorable Clifford O'Sullivan.
Potter Stewart: Which is at -- which map is it? Which --
Mitchell E. Ward: That’s the map like this.
Potter Stewart: Appendix A?
Mitchell E. Ward: That’s right, appendix A, yes.
Potter Stewart: Appendix A, thank you.
Mitchell E. Ward: The black line on this map shows the location of the river when it was surveyed by the Surveyor General of the United States. It is the contention of Mississippi that from about 1823 to 1830, the time of the original G.L.O. surveys that the river migrated slowly and imperceptibly caving in to the Arkansas bank and adding accretions to Carter Point, Mississippi until such time as it moved approximately 2,000 feet to the west, in the location in 1935. In the year 1935, the United States Engineers made a cut-off across the neck of Carter Point which is shown on this exhibit, appendix A, thus, diverting the flow of the river from its old channel around the Carter Point and creating a new channel within a matter of some three months, all navigation left the over -- old channel and adopted the new channel through Tarpley Point.
Speaker: Mr. Ward, I take it the only argument here is over Luna Bar, is that right?
Mitchell E. Ward: Yes, that area around Luna Bar. Luna Bar actually created the problem.
Speaker: Is this a very valuable piece?
Mitchell E. Ward: Yes, sir.
Speaker: Appellant exercised here on a --
Mitchell E. Ward: Its -- by now it has probably close to thousand acres of land. All of this land shown in Spanish Moss Bend has filled in. There have been numerous problems in the enforcement of criminal law. The State of Mississippi arresting residents of the State of Arkansas on this Bar where the intended confusion about which state has criminal jurisdiction. It is the contention of the State of Arkansas that this gradual migration did not occur but that in the year 1872, the river, Mississippi River suddenly jumped, caved into the Arkansas bank, went over bank, scout out a completely new channel behind the mainland of Arkansas bank and then re-entered the Mississippi channel at a lower area there thus, creating a island which they is Luna Island and not Luna Bar. The Special Chancellor, I mean the Special Master resolved this conflict in favor of Mississippi and we are here today on exceptions to his report. We’re not sure just what the position of the Supreme Court is at this time about the weight to be given or the finality to be given to the finding of a Special Master. We do note that in Rule 9 (2) of the Supreme Court rules at -- they say that where applicable, the Federal Civil Rules will be given effect and in Rule 53 of the Civil Rules, it is provided that the finding -- factual findings of a Master will not be disturbed unless clearly erroneous. Actually, we are in agreement with Mississippi and Arkansas in agreement with the basic law which is the law of the thalweg and we’re really here arguing a point of fact as to whether the finding of the -- the report of the Master should be approved on that finding. We both agree that the law is that if the river migrates slowly and imperceptibly and the thalweg continues to cave in to a bank, that that -- where that thalweg is the boundary line between states that that changes -- does not change the state boundary but the boundary follows the deepest line of navigation of sailing line or thalweg used interchangeably and it remains the state line wherever it might be. We agree on that. We further agree that if the river suddenly abandons its old bed and carves out a new bed by -- in a very short period of time by an avulsive action that this freezes the state line and the line of navigation, the sailing channel where it was located prior to the avulsion after that reach of the river has ceased to be a flowing stream. So --
Potter Stewart: Mr. Ward, am I correct in assuming that there really isn’t any argument on the law at all between the two states.
Mitchell E. Ward: No, sir.
Potter Stewart: It’s just the application of --
Mitchell E. Ward: The application of the law. There's one other point of law which, I think, we are in agreement on and that is this that in the brief below, Arkansas conceded that Mississippi had made a prima facie case and that the burden of proof rested upon them to establish the 1872 avulsion. This was quoted. I did not argue it in my brief because it was quoted by Justice -- by the Special Master and was not controverted by Arkansas. That is the law anyway as I understand it to be because an avulsion is an extraordinary thing and not the ordinary thing that would happen. Fortunately, we were able to find numerous maps and charts, direction for navigation, reports to Congress involving this sector of the river over some approximately 200 of them. So we have a rarely com -- a fairly complete historical picture of this. From the time that Mississippi and Arkansas were admitted to the union, there are numbers of maps particularly the all western palette which was -- gave directions to navigators and which included maps of this sector of the river which stated that the sailing vessels when they go through Spanish Moss Bend should go over and hold hard against the bed -- against the bank of the Mississippi River thus fixing the sailing line against the concave, hard bank of the Arkansas River from 1820 up until 1860. There's not -- the largest years in gap in this period of time was only nine years, so we have a graphic depiction of the fact that from 1820 to 1860, there seems to be no question but what the sailing line, the thalweg, the channel of navigation was hard against the Arkansas bank. Also, during that time, there was no evidence of a detached bar as we call it, a piont bar, an island as Arkansas call it. There was no evidence of any detached land mass appearing of Carter Point. The maps all, however, did show that attached to Carter Point there was building and continued to build a sandbar, accretion formation. And in 1863, and we now move into the war years, a law, it's 1863 on the Mississippi River which was drawn up for the purpose of showing this very thing, islands, sandbags, further fortifications and land -- and mines that had been placed out -- was printed and this 1863 map goes into great detail showing a very decided sandbar formation attached to the distal end of Carter Point, Mississippi with no land mass formation out in the river. Following the end of the Civil War and doing the efforts to reconstruct the South, the United States sent a -- General Humphreys down to make a -- an inspection and report, particularly on the condition of the levees along the Mississippi River. The levee being as you know an earth and bank mud that is thrown up at that time parallel within quite close to the bank line for the purpose of trying to contain the Mississippi waters when it was in (Voice Overlap). This report that Mr. -- that General Humphreys made in 1866 to Congress and a subsequent report that he made to Congress in 1869 reported that the bank was caving badly in this Bend that the levees had fallen into a state of disrepair and that breaks were evident in the levees in several places, all in this Spanish Moss Bend area. Then in 1872, the State of Arkansas also became concerned with this and they appointed a surveyor named Douglas, to make surveys of the existing levees and to make recommendations for new levees to take the place of the gaps into old levees. This is a first historical proof of the existence of this land mass known as Luna Bar in a situation where it has become detached from Carter Point. Mr. Douglas surveyed a -- in great detail the Arkansas bank there. He showed farms. He showed forests. He showed sloughs. He showed the levees in place and levees which had been breached. Luna Bar, he did not designate its sect but in the river over against the Mississippi shore, he showed and I -- a formation detached from the shore utterly devoid of any sculptural symbolization which would indicate, we have no report of Mr. Douglas, but it was slightly indicate by leaving it blank that he did not consider it a part of Arkansas. The most important thing about Douglas’ survey however, is the fact that he locates with great detail the then existing levee system with its breaks which coincide exactly to the reports that General Humphreys made through Congress in 1866 and 1869. And the engineering witnesses introduced by -- the engineering witness and it was only engineering witness introduced by Mississippi was able to overlay subsequent surveys right up to the present time and you can see that all the levee’s prior to 1860 in place, you can walk them both sides considered they’re there. You can walk them along the bank, on the Arkansas side. There is no levee formation or whatsoever on Luna Bar which is some 2,000 the crest of it is some 2,000 feet to the east.
Potter Stewart: Mr. Ward, in respect to that last statement, does your opposition agree with you on that. Wasn’t there some testimony somewhere that there is evidence of an old levee on Luna Bar?
Mitchell E. Ward: No, sir. I think not. There was some testimony of an old house site on Luna Bar.
Speaker: Or an old cistern was --
Mitchell E. Ward: Cistern, that’s right and then the witness Putnam (ph) said, he thought he saw a chimney. On his second visit back, he could not locate the chimney. No one was able to locate any habitation on Luna Bar. The witness, Dr. Durham, even went so far as to get a metal detector and go -- they assumed that there were houses there because there were chinaberry trees. In that part of the country, they do plant chinaberry trees around house sites so they saw some chinaberry trees also brought in by birds. But they did --
Speaker: Is there any habitation there now?
Mitchell E. Ward: Sorry.
Speaker: Is there habitation there now?
Mitchell E. Ward: No, sir.
Speaker: But you’re still arresting people on Luna Bar for something?
Mitchell E. Ward: Mississippi is arresting people on Luna Bar.
Speaker: What -- for what -- on what kind of charges?
Mitchell E. Ward: By game violation. There has not been one -- this really started the series of suits was a -- Mississippi making these arrests. And I think that’s really what precipitated the litigation.
Speaker: The litigation.
Mitchell E. Ward: Litigation and we thought it well to bring it to -- in a proper way.
Speaker: Well, these are hunters?
Mitchell E. Ward: Hunters, yes. One was a hunter from Missouri, came down with an Arkansas license and was arrested and tried in Mississippi and another one, I believe had in Arkansas license and was also arrested.
Potter Stewart: So is that -- those episodes that motivated this litigation to get the (Inaudible).
Mitchell E. Ward: Started the litigation then in the lower courts. One suit was filed in the District Court at Greenville. Another suit was filed in the Chancery Court of Arkansas and we were getting litigation all over the place and Mississippi decided they wanted to bring it here then have some definite adjudication of where the line was.
Potter Stewart: Are these geese or ducks or --?
Mitchell E. Ward: Deer mostly -- there is very good goose and duck but mainly deer and the turkey.
Potter Stewart: And who’s the owner of the property in litigation?
Mitchell E. Ward: Carter Point is owned by a lumber company, Anderson-Tully Company, the Arkansas bank well, right north of Carter Point is owned by Chicago Mill and Lumber Company which do not involve in this suit the land owners to the west of various one, Dr. Wells is now dead, Mrs. Smith, Arkansas Land & Cattle Company and then they have further owners, further other owners further downstream that have not yet become involved in any of the litigation.
William H. Rehnquist: When this dispute is to the historical movement of the river, unsettled private titles as well as the boundaries between the states.
Mitchell E. Ward: Yes sir. On that Duke versus Deffrey (ph), they recognized that private litigants can settle their titles one by one if they finally get an unappealable decree but it is difficult crossing state lines to get personal surveys on land owners and to make a decree which you feel confidence in. Also that does not resolve the question of taxes. There’s the question of criminal jurisdiction and recently there has been a good bid of all activity in Washington County which is immediately adjacent to that, has always been a good bid. In Arkansas, I’m not quite sure about this particular county. But in any rate, the Douglas 1872 survey was the first historical evidence of this situation being there. Also in 1872, Louisiana since they were getting the water when the water flowed through the breached levees in Arkansas, they flowed downstream and came in to what is known as the tinsel bottom and Louisiana also sent, a Captain Richardson (ph) up to make an investigation and report and he made a report in 1872 to the Louisiana Levee Commissioner reiterating the same situation found in Humphreys’ reports. In addition to the breaks that he found and shown on Douglas’ Report, he found an additional break of 200 feet in the levee. The important thing about all of these reports, it seems to me is this, one, no mention was ever made of an avulsion taking place in 1872 whereby the river jumped into Arkansas and caved through the land and came back out. The geological witnesses, Dr. Kolb, from Mississippi, Dr. -- Mr. Spillers (ph) and Doctor Durham from Louisiana all conceded that in there experience as geologist and all of the geological literature there had never been any mention or ever has any history of any such phenomenon taking place as Arkansas claims to have happened here. In fact Dr. Kolb said, I had to coin the phrase and he called it an outside avulsion and said, I never heard of it, I just made it up. Mr. Spillers made one, he said it’s -- I call it reoccupying an old channel. He admitted that there was no such accepted phrase in geologic literature and he said he had to coin the phrase too. So, with all of these weighed down in this particular narrow sector of the river it is -- it seems to be incredible that if this phenomenon took place, it has never happened before and it never happened since -- but they were concerned with the integrity of the levees when they were concerned with trying to protect the backland of Arkansas from flooding that they would've swept this remarkable situation under the road.
Speaker: Mr. Ward, there was a testimony by a forester with respect to the existence of three rather mature trees, one, a red mulberry tree, I think and the other, a black walnut tree and as I remember the species of the third tree was not identified which Arkansas says tends to support their theory. Where were those, it wasn’t clear to me, where those trees -- where the forester testified he found those trees or tree stumps and what the --
Mitchell E. Ward: Significance of them?
Speaker: -- significance of them would be?
Mitchell E. Ward: Mississippi takes a position that those of stumps of trees that had had been severed from their bowl in years past and had floated in over some flood in preceding years. And substantiation of that position which we think is a valid one. The two, the -- if the Court please, one of the old mulberry tree was found on the lower end of Luna Bar, the other two trees were found about the center, west center portion of Luna Bar. The remarkable thing about it was that they -- that these witnesses pinpointed and they are on the exhibits. They pinpointed the location of these tree stumps which they said -- they thought were stumps of trees in place.
Speaker: And they testified, they were deeply rooted there, they were -- didn’t they?
Mitchell E. Ward: One of them, yes, one of them was rooted, one was -- been over and was not real, one had the moss on the roots, it couldn’t have been Putnam -- that Mr. Putnam before said it was rooted. Then I call his attention, the fact that there was moss on the roots. Then he said, well, that -- it wouldn’t have moss on the roots. But the complete refutation of that in our opinion is this that the witness, Smith, the all -- all of these maps were blown up to a common scale, one foot equal 20,000 feet, one to 20,000. It’s possible by getting your benchmarks, your levees and so on and lining them up to overlay and -- transparent overlay is made of all these exhibits. To put one exhibit transparency over the other and locate various geographical points, the mulberry stump and the other two stumps which they said were of ancient age, in 1894 the soil was in and one place was 10 feet lower and another 15 feet lower and another place 20 feet lower. So between 1894 and 1970, when Mr. Putnam went on to Luna Bar there had been a filling so that the elevation had been increased from 1894 as laymen, I’d say fill, it had been filled in. The elevation had been increased as much as 20 feet, 15 feet, 10 feet, so these stumps were -- they would've hanging in the air if they had been there in 1894. In the meantime, the river had come in and deposited and these stumps had obviously floated in, a phenomenon that’s accepted up and down the river. It floated in on some subsequent rise and had attached there. While you have raised the question of forest, we find with exception to these dead trees, which we didn’t find, we never could locate, and they found them.
Speaker: If in fact, trees of that age had grown in that spot then your theory would be erroneous, wouldn’t it?
Mitchell E. Ward: No, sir. Because it would've been impossible because they grew in an area which by subsequent maps the 1882 survey, Mississippi River Commission, we call the MRC Survey, the 1894 survey, they show subsequent shows -- survey show that this area was in the bed of the river, (Voice Overlap).
Speaker: Well, as I see it, but --
Mitchell E. Ward: Otherwise, we would have to disregard those facts.
Speaker: Well, yes. But my question was if those trees had in fact grown where they were found of that age then all of your evidence is wrong, isn’t it?
Mitchell E. Ward: No, sir. I wouldn’t agree to that because --
Potter Stewart: It can only -- in other words, they could've been on the bottom of the river or the trees wouldn’t have grown there. You assert -- assume with me if you will, contrary to what you strenuously represented to be the facts that the trees in fact did grow in those spots for 84 years, a hundred years, whatever it was year old trees and had they grown there, then your theory as to the historic facts would be mistaken wouldn’t it?
Mitchell E. Ward: I would have to say yes, I would have to assume first that the river -- that the land was at that elevation.
Potter Stewart: Right.
Mitchell E. Ward: And that all of these subsequent maps were all wrong.
Potter Stewart: That’s right.
Mitchell E. Ward: And that was a part -- yes, the Judge O’Sullivan made that all of the witnesses for Arkansas found fault with these ancient maps wherever they did not agree with that theory. And that was a way they wash the maps out because he said it doesn’t agree with our theory. Out there, it’d been that the -- why stand there theory being that the group but I can’t get over the fact that there are moss on one of the roots there which would be evidence if they --
Potter Stewart: Alright. I just wanted to be sure I understood the significance of the evidence, so is your answer yes that if the trees had grown there, your theory would be mistake? And all the maps would be mistaken and all the evidence and all the other evidence upon which you relied?
Mitchell E. Ward: Yes and all the maps and all the way to the Mississippi River Commission.
Potter Stewart: Right.
Mitchell E. Ward: And all of that reports to Congress and so forth.
Potter Stewart: Right. I just want to be sure I've understood the significance.
Mitchell E. Ward: Yes, sir. In 1882, and this would bear on the question that has just been asked, in 1882 the Mississippi River Commission made the first -- the definitive control survey of the Mississippi Valley, this was done with great care. It was done on -- tied in with trigonometry, it was tied in with longitude and latitude and they got the elevations and my time is running short, I do want to save a minute but those surveys showed this was just a dry sandbar with no vegetation on it.
Warren E. Burger: Mr. Drew.
William H. Drew: Mr. Chief Justice, may it please the Court. The State of Arkansas will agree with the State of Mississippi on the law. Apparently, there is no contest of the law involved. It will be merely a fact -- factual situation that if Luna Bar or Luna Island is the product of an accretion then of course the evidence is that the river and the thalweg was west of it. If it however did not imperceptibly move, then the theory of the State of Mississippi and it being in the State Mississippi would be incorrect. To go a little further, the State of Arkansas conceded that in its inception that the State of Mississippi raised a prima facie presumption that the river did migrate, it did not concede that the river did in fact migrate across. By the testimony of Mr. Kolb -- Dr. Kolb and the witnesses for the State of Mississippi, we conceded that they raised the prima facie presumption that under normal circumstances and accepted principles there is a westward migration of the river and had been way of this type, however, in the accepted situation, we do not necessarily agree it occurred at that time, in fact we think the evidence is quite contrary. We agree that there are many recorded maps and one particular map of -- was -- the defendant’s exhibit number 8 which was a map of the -- I meant, ownership map of Washington County, Mississippi in 1871. This map does not bear out the contention of the State of Mississippi in any way. Appendix -- the map of 1863, Lloyd’s map, and I believe it’s the 9th exhibit in Judge O’Sullivan’s report. There is an accretion to the northern side of Carter Point but this is not the location of Luna Bar or Luna Island, it is to the north and completely distant by two to three miles. The -- had the rift in 1971 all of the maps and we commenced with the Government Land Office Survey of 1823 on the Arkansas bank, 1830 on the Mississippi bank. From those points on there is no divided channel in Spanish Moss Bend. This goes through the Humphreys and map 1861 which was the general reconnaissance map used by General Grant in the conquest of Vicksburg. There is no divided channel all the way through in 1871 based upon the maps from the Library of Congress and the Senate and the other maps and also the defendant’s exhibit number 8 of Washington County. In 1872, there is a divided channel apparently based upon the maps of Mr. E. A. Douglas who was apparently commissioned to show the breaches in the levee and to get congressional assistance in this area. Immediately, west of Luna Bar, there is about a mile or so of levee that are breached, the report of Mr. -- of General Humphreys is that this levee was breached there but the waters were not going to the tinsel bottoms but were passing back to the main channel of the river. Mr. Smith, in behalf of the State of Mississippi, deduced that the caving in the bank above Columbia was in Spanish Moss Bend. The history of pre-Columbia was the first county seat of Chicot County. It did in fact washed into the river and caved away and the county seat was subsequently was afterward removed. Columbia no longer exists even in any way because it all went into the river and its some several miles south of there. Be that as it may, in 1872, the map of Mr. Douglas, if we will take the -- and assume that the projectile like, the little marking over there is the Mississippi bank or is Luna Bar would be its first appearance. However in 1873, there isn’t any question as to the appearance of Luna Bar or Luna Island. Major Sutter (ph), commissioned by Congress made a quick reconnaissance of the river. He was making this reconnaissance due to the vast flood damage and to make a report to Congress for assistance therein. Major Sutter in his map of reconnaissance which would be defendant’s exhibit number 12 clearly set forth a bar in the river, he clearly wrote legend, Spanish Moss Bend in the eastward channel and shows the thalweg of the river in the western channel. And going through his entire report he meticulously has put the legend of the name of the Bend even when crowded for space where it apparently originally was.
Speaker: Mr. Drew when you refer to this various defendant’s exhibits, those are Arkansas exhibits and they're not attached to the Master’s reports?
William H. Drew: No sir, they are not.
Speaker: But they are here in the file, I take it.
William H. Drew: Yes, Your Honor.
Speaker: Alright.
William H. Drew: Yes, sir. So we know that the island came into existence in 1872. The first hydrographic survey of the river took place in 1879-82, the actual geological survey -- of the surveying and it all took place in ‘71. The map and it’s -- whatever they’ll show in their own continued on through ‘82. And at that point, it shows a divided channel. The Court’s attention is called to the testimony of Dr. Kolb and Mr. Smith and particularly so, sir with reference to the elevations of the island, Mr. Gar (ph) had made a survey line across the island which crosses the north side and is clearly in an accretion area, reference line A to B, C and I believe it goes to D on up to Carter Point. All of the elevations alluded to by Dr. Kolb and Mr. Smith were based upon the elevations of that reference line and not to the highest recorded elevations of the island itself. If the Court please, the Court to locate exhibit number -- I believe its appendix A to the Master’s report will note that the original survey lines of 1823 on the Arkansas bank, 1830, the Mississippi bank are shown therein with heavy pencil. At the distal south, distal end is the island itself, the accretions being the portion to the north. The reference line crossed over on to the northern portion of the island and not through the higher area. Based upon the physical maps and what the -- it thoroughly show, there was no accretion to the distal end of Carter Point, exhibit D-A -- 8, ownership of Washington County completely shows Carter point in its original position. The other exhibits that are made about that time also can reach that same conclusion and therefore we know that the island did come into existence in the year 1872 based upon Mr. Douglas’ map followed by Major Sutter’s. The -- thereafter there is a divided channel at old time but every Mississippi River Commissions Survey from 1880, the first all the way through to the present time, there is a divided channel around the island. The State of Arkansas employed Dr. Kolb, excuse me --
Potter Stewart: Since 19 -- although you said a divided channel has existed right up to the present time.
William H. Drew: Yes, sir.
Potter Stewart: The actual navigable river is down through the Tarpley Cut-off has been since 1935 --
William H. Drew: Mr. Justice Stewart, the river eastward of that point approximately five miles, there was a channel, a dredge through Carter Point, but navigation did adopt. However, the river is still active in Carter Point and I mean, in Spanish Moss Bend and has always been I think the testimony will be that only a very small portion of the island was that at one turn during the suit and other times it had both across those channels but there is still a major stream going through (Voice Overlap)
Potter Stewart: They are still flowing on both sides?
William H. Drew: It still flows, yes, sir. The State of Arkansas does --
Potter Stewart: Although the navigation is down through the --
William H. Drew: Yes, sir.
Potter Stewart: -- Tarpley-Cut-off and then since 1938 the --
William H. Drew: (Voice Overlap) concedes that the navigation is in Tarpley Cut-off.
Potter Stewart: And the levee had been cut-off below it since 1938?
William H. Drew: And the levee had been cut-off. However it does not concede that the river is inactive in that area at all. So it is very active.
Byron R. White: So when is the --
William H. Drew: Yes, Mr. White --
Byron R. White: Is the river boundary then -- is the river boundary then or that the boundary between the two states now fixed or not?
William H. Drew: Sir, the boundary between the two --
Byron R. White: If it’s still an active river, supposedly it isn’t --
William H. Drew: I would see it is not fixed and except for the avulsion that would've taken place in 1872 fixing the channel in the eastern channel in 1872 (Voice Overlap).
Byron R. White: (Voice Overlap) fixed since 70 -- 1872?
William H. Drew: Yes, sir.
Byron R. White: But if you're wrong, it isn’t fixed yet?
William H. Drew: That’s correct sir. Yes, sir. Dr. Durham and Mr. Spillers made an extensive geological investigation of the island itself. The strata of the soil, the leveling -- its level across the same strata run uniformly throughout its length that is inconsistent with a -- an accretion such would have bending waves or layers of soil therein as it accreted and moved outward. Both Dr. Durham and Mr. Spillers also made investigation as to the pre-existing channels that lie westward even of Luna Island itself. The present channel of the western channel, they made an extensive study therein and found the low lying cypress stumps that grew in place that are lying in the bottom of that bed and also are lying east of the western migration of the river itself. The evidence, the physical evidence there concludes that there is or was a low-lying area in there. However, had the river migrated westward as contended by the State of Mississippi, these cypress stumps that are lying east of this westward migration that by ring count or over 250 years old would have been erased? The State of Mississippi says, “Well, they could have floated in and landed there.” With the given description of with all just floating the roots are up when you saw them off, they flop up, they don’t sink downward. However, there was a testimony by experienced foresters; these trees were trees that grew in place their needs, their root systems and all are there. This is in the western channel and not on the island itself. On the island itself, in the higher elevation which will be in that south central part on exhibit, appendix A, the high elevation that is recorded much higher than is shown by the State of Mississippi, there are tree stumps of antiquity there or ancient that were located by Mr. Putnam, who is now deceased and Mr. Campson (ph) both experienced foresters, both testified these stumps are from the trees that grew in that spot, they examined them. The carbon dating of that stump, by Dr. Iddings (ph) which was the tree had been dead -- at the time of its death was 550 years plus or minus 180. As I understand the carbon dating, the longer the half-life is computed the smaller the figure. The time element involved and having established a tree of antiquity much greater than the hundred-year period that would be involved herein. It was not run any longer. This particular tree was the red mulberry stump, sir that was 84 years old by ring count at the time of its death. Even without the carbon dating, we know that from the surveys thereafter the 1882 survey the -- the tree mass was there gone and this tree if growing there had been dead at least by that time which was prior to the clever man’s survey. The other two of those trees: one, a red mulberry and the other a black walnut. The black walnut was flagged and left in place by Mr. Thompson. The ring count they are on was 112 years old. There was no attempt to carbon date yet. It also had been dead longer than the period of time involved and was of age there. The other was the red mulberry with 112 years old or some back at the, exactly, I do not recall. Had the river moved imperceptibly westward as contended by the presumption raised by the State of Mississippi, these stumps could not have existed. Further, we have the testimony of Mr. Richard Proctor, who is an elderly man that I have known all of my life since I was born and raised between two miles of this part. Mr. Proctor testified and if you’ll notice his testimony in came it as not solicited but a voluntary thing, that on this island, he was asked a question and he remembered going upon the island and going into a cistern and taking a mink. We further have the testimony of Dr. -- I’m sorry his name escapes me. The gentleman with his jury topics who could see Mr. -- Judge O’Sullivan could not however he continued, he found evidence of human habitation in the aerial photographs of the 1930.
Potter Stewart: What kind of a vegetation and in particularly trees are on the -- around the Luna Bar to that?
William H. Drew: At this time sir?
Potter Stewart: Yes.
William H. Drew: At this time sir, on the highest elevation on the very top it is a field. There are approximately 800 acres of land adjacent on the accreted areas that have saw timber and willows that our foresters valued at $500 an acre greater at the stump, there are other species of trees, hardwood that this is quite valuable land.
Potter Stewart: Any red mulberries or white walnut?
William H. Drew: Yes, sir.
Potter Stewart: There is the evidence they’ve talked in the brief.
William H. Drew: In the --
Potter Stewart: And the papers here about --
William H. Drew: The only --
Potter Stewart: -- primary growth and secondary growth and the climax growths.
William H. Drew: Yes, Mr. Justice Stewart.
Potter Stewart: -- which are unfamiliar terms for me.
William H. Drew: The --
Potter Stewart: But I don’t (Voice Overlap) --
William H. Drew: The climax series of trees are all on the higher elevation surrounding the field. On the lower elevation sir, they are only trees of the primary species.
Potter Stewart: But on the --
William H. Drew: Higher elevations, trees --
Potter Stewart: On a higher elevated plain are there red mulberries and (Voice Overlap)
William H. Drew: There are only trees of the secondary and primary species on the highest elevation, sir. And this is one of the things that when the foresters called the Court’s attention to. The -- not the tree itself and the present living tree and its age but the complete variety of trees that are now growing there is inconsistent with trees with newly formed lands as contended by the State of Mississippi. The Mississippi River Commission itself in the historical study for the Tarpley Cut-off made a survey, a historical study which is defendant’s exhibit number 32 wherein the State of Mississi -- the Mississippi River Commission itself made the historical study and a map showing the accretions and whatnot from 1880 to date. There -- historical study also does not support the presumption of the State of Mississippi. Further, Dr. Fisk in the geological investigation of a Mississippi River alluvial valley and its ancient courses from Cape Girardeau, Missouri to Downing, Missouri, which was defendant’s exhibit number 30, completely supports the contention of the State of Arkansas, completely supports Dr. Durham and Mr. Spillers. It completely negates the presumption of the State of Mississippi. In its geological investigation, Dr. Fisk shows the area of the island we were just discussing with the secondary and the primary trees they’re on as ancient course number 10. In the hierarchy of the years on the ancient courses, they fixed them by centuries, tenth century, eleventh, and twelfth up to the present time, however, they go back to antiquity. Dr. Fisk also shows that the higher elevation from which the red mulberry, the walnut and all this others were taken as well as the tight forestation as to be in channel number 10 or in existence more than several hundred of years. We have the defendant’s exhibit number 39 which is a county map of Chicot County prepared by Mr. W. A. Miller (ph), who at that time was the County surveyor who shows clearly the Luna Island Bar area as being it in the State of Mississippi. It’s the contention of the State of Arkansas that the report by Honorable Judge -- Mr. Judge O’Sullivan is erroneous in that it adopts the depth or the elevation theory of the State of Mississippi on a reference line was aren’t regard to the true elevation of the island from where the physical facts of antiquity were discovered. Secondly, the map area does not support the contentions in anyway and in fact negates it. We believe that the State of Arkansas has completely negated the presumption raised by Dr. Kolb or by Mr. Smith with physical factual evidence that makes the fact that this would be a part of Mississippi in impossibility. We thank you very much sir.
Warren E. Burger: Thank you Mr. Drew. Mr. Ward, do you have anything further?
Mitchell E. Ward: I have -- I can’t agree with everything that Mr. Drew has said. For instance the exhibit by the Master here shows that old the channel completely clogged off and filled with sand which the Court had before it. The question of forest here, it is not trees that control, it is the question of the forest, the type of the forest. The testimony here is that this was an alluvial forest and that the growth of trees, there is an alluvial forest of the primary species, they’re still there, 40 years old.
Warren E. Burger: Thank you very much gentlemen. Case is submitted.


Earl Warren: Number 423, Government and Civic Employees Organizing Committee, CIO, an Unincorporated Association, et --
Gordon Madison: May it please the Court. There isn't anything mystic or mysterious about the working to labor union. To put it generally known or how they operate in order to accomplish there objectives. As to general, all of them believe in the principle of collective-bargaining and they attempt to bring about collective-bargaining agreements. They use strike in such instances. Where union and non-union members become in daily contact, you'll find in sentence on paragraph 1 that should be close shop.
William O. Douglas: Has Alabama experienced strikes in the case of Government employees, State employees?
Gordon Madison: That is prohibited?
William O. Douglas: No. Has it experience in strikes of -- by state employees?
Gordon Madison: Insofar as I know only there may have been some threats. They do deal sometimes in picketing. Then we all know they have designed that this place to the stores, some other places unfair to organized labor. They insist sometimes on the collection of dues. They asked the employer to take out the money and remit. In their meeting they do have political discussions about candidates which they have a right to do, to a certain extent. And that they used to keep both on regular on (Inaudible) I'm not sure, United State Senate. We have under the merit system, political activity is prohibited. Here's where the borderline will come in these meetings. It's difficult to determine. Except that they have a right to say one will vote or against. You don't have the right to get into organization to make speeches and go out and engage in open political activities. Now, it seems to me that which one all of these things, that could be provided for by the State in its wisdom would be for the legislature to determine. Maybe some or all of them might constitutionally be prohibited by stand of state employee. They cannot belong to a union which engages in these activities. Certainly, that's true as to collective-bargaining. I don't know all the decisions of this Court. You can't read them all and you can't keep up with all them in all the state court decisions. But I believe this Court has said somewhere along the line that collective-bargaining has no place in public employment. Now, the District Court has said when this case was before it, contention was made that this Solomon Act which has been read to you all is unconstitutional on its face. Well, if there is any discrimination in this Act it appears on its page. The District Court said, we don't say there's no way to construe this Act in a constitutional manner. If it had been unconstitutional on its face for any reason, would there have been any logical reason for abstaining and sending the case back to the state court? Wouldn't if federal court have proceeded, is there no way other than to say it's unconstitutional, would have struck down right then. And when it came up here wouldn't this Court have said, “No. We are not going to affirm. There is no possible way it can be constitutional. So, why send it back?" This Court didn't do this -- do that. It affirmed to stay in the lower court. Now, when the union -- and I'll make this point whether there's anything to it or not, I don't know what I'm going to mention. Up to that time, the -- the employee have seen and the union have been thriving together. But when they started in the in the Circuit Court of Montgomery County seeking a construction of this statute, the employee member was dropped or he didn't participate in the suit.And the union alone brought it. Why? I don't know. The other side may answer that (Inaudible) anyway. And then the issue was formulated there. It seems like it was studiously avoided to bring in any question about the constitutionality of Solomon Act. Now, we want you to tell us by declaratory judgment because we've got a dispute between us, as to whether or not you are a labor union or a labor organization within the meaning of the Solomon Act.
Harold Burton: Do I understand you to say that the question of constitutionality was studiously avoided (Inaudible)
Gordon Madison: Well, I said that -- yes. So, I'll put it this way. It was not raised.
Harold Burton: And in the Supreme Court likewise?
Gordon Madison: And in the Supreme Court likewise.
Harold Burton: And this was put in neither the lower state court nor the Supreme Court, the State has passed on the constitutional issue?
Gordon Madison: That's correct, sir.
Felix Frankfurter: Did you say it wasn't raised?
Gordon Madison: He wanted to know whether not he was a union within the meaning of the Solomon Act.
Felix Frankfurter: Yes did you -- I think, did I hear you say correctly that the constitutionality of the Solomon Act, was not before your Supreme Court in the -- in the decision that was -- in which an -- an opinion was rendered in 262 Alabama?
Gordon Madison: That's correct, sir. And it --
Felix Frankfurter: (Inaudible)
Gordon Madison: It was raised neither in the pleadings. It was argued before the Supreme Court on oral argument. The constitutional question was not involved. And it appears in the briefs, I believe. Now, those briefs were not made a part of this record.
Felix Frankfurter: What appears in the briefs?
Gordon Madison: That if there's no argument, of course, the constitutional question was argued. But each side stated, as I recall. There is no constitutional question involved in this case. Just whether or not (Voice Overlap) --
Felix Frankfurter: Voice Overlap) -- That was in the brief that lead to the decision 262 Alabama?
Gordon Madison: That was in the brief filed in this -- in this case. Is that correct?
Earl Warren: Can you supply us with a copy of that brief so we -- we may read it for ourselves?
Gordon Madison: I believe they are in the Court record because they were introduced in evidence on the circuit trial before the District Court. And I think they were left out being printed, but I believe they are here in this Court now.
Earl Warren: Now, would you just state as accurately as you can what was stated in that -- in that brief to that effect?
Gordon Madison: In the brief?
Earl Warren: Well, that's what we're talking about isn't it?
Gordon Madison: You mean in the state court brief, what was in it or what was left out?
Earl Warren: On this -- on this particular subject that the -- that the constitutional question was not being raised. That's what I understood you to say as the brief showed --
Gordon Madison: It was -- it was argued in -- in substance in that case.
Earl Warren: I beg your pardon?
Gordon Madison: That it was argued in substance. I'll state the substance as nearly as I can recall --
Earl Warren: Yes.
Gordon Madison: -- by the other side that they had attempted to bargain collectively with the A.B.C. Board. At the A.B.C. Board had refused to bargain with them and hence they had ceased any attempt to bargain collectively. They then said that we have from that time on conducted merely a discussion group. And being merely a discussion group, we say that the Solomon Act does not apply to us. And we ask this Court to hold that we are a union and our activities as such. That we do not come within the provisions of the Solomon Act. We argued on the other side. Do you want the other side too, Your Honor?
Felix Frankfurter: Before you're going to the other side, let me have no doubt about what you're saying. Am I right in inferring from what you've just said that the others -- that the -- the present petitioners for the present appellants they don't appeal. But the present appellants in the -- in the argument in the proceedings before the Supreme Court of -- of Alabama claimed that there were a discussion group --
Gordon Madison: That's right.
Felix Frankfurter: -- and therefore, outside of the scope of the Solomon Act.
Gordon Madison: That's right.
Felix Frankfurter: Is that right?
Gordon Madison: That's my understanding there.
Felix Frankfurter: And the Court -- and the Alabama's Supreme Court decided that they were not a discussion group merely --
Gordon Madison: That's correct, sir.
Felix Frankfurter: -- but that they were brought, that their activities brought them within the terms of the Solomon Act and that's all it decided.
Gordon Madison: That's right.
Felix Frankfurter: Is that what you're saying?
Gordon Madison: That's right, sir. And I want to state that's the basis for the Supreme Court of Alabama decision. There should be no mistake between them. Let me get that clear. The Supreme Court of Alabama went into the rules of this organization, went into the Constitution. It went into the law of Mr. Philip Murray when it was setting up, this organization all of which provide for collective-bargaining and it's in -- one of the main purposes and objectives of the union. It went into the clauses whereby the -- the member should take an oath to abide by those rules and regulations. That then none of them can't be changed without approval by the executive committee. They went into the question that this union is connected with the International Union. And in that constitution of the International provided for collective-bargaining. And that those rules and regulations constitute a contract between a union and the members and between the members themselves. And it then went on to say that a local union merely on the whim of a representative or the local group cannot change the declared purposes and objectives of that national or international organization. And then they --
Earl Warren: (Voice Overlap) --
Gordon Madison: -- threw him some moreover things about that activities, which I will discuss.
Earl Warren: Mr. Madison, I haven't quite got an answer to -- to the question. I understood you to say that petitioner, in its brief in the state court and its argument represented to the Court that there was not a constitutional question involved. That it was only the question as to whether the ex-conduct of -- of the petitioner constituted or brought them in -- within the act itself. Now, is that -- I -- I just want to know if I'm correct in -- in my recollection of what you said?
Gordon Madison: Well, Your Honor I will put it this way because it -- it maybe important, you'll think. I don't want misstating it. My recollection is that it occurs in both briefs. I know it does in the brief filed on behalf of the State. What I know is that we did argue -- argue the constitutional question for fear that the Court might say this is of such public importance or something.You go ahead and deal with it anyhow. What we stated before we did that, we didn't think that question was in and had been raised.
Earl Warren: But you --
Gordon Madison: In my recollection is they did the same thing.
Earl Warren: You --
Gordon Madison: But I'd rather rely on these briefs. They're here and in order that you may determine for yourself just exactly what they did say.
Felix Frankfurter: But you -- you went beyond that. You also said, if I understood you correctly, that the pleadings disclosed that the constitutional -- that there was no constitutional attack on the Solomon Act.
Gordon Madison: That -- well, I -- it -- it doesn't it -- I'll put it this way. I'll put in the reverse. There's nothing mentioned in the pleadings that the Solomon Act is unconstitutional.
Felix Frankfurter: All right. What -- would you mind stating what is meant, what -- what proper inferences may be drawn from the judgment of the Montgomery County decree saying the prayer for injunctive relief is denied. But what's the significance of that?
Gordon Madison: Well, they asked that the -- the members of the A.B.C. Board and this manager of the store, the supervisor of all to be enjoined from enforcing the provisions of the Solomon Act. Now, they did that on a theory, I guess, if they thought they were not under it and A.B.C. Board was attempting to apply it to them, that you ought to be enjoined from that.
Felix Frankfurter: And did the prayer, that's your remark a little earlier that the pleadings did not attack the constitutionality? That covers I take it, the terms of the prayer by the complainant before the Montgomery County Court?
Gordon Madison: Our recollection is correct.
Felix Frankfurter: But they did not say a wherefore (1) the Act is unconstitutional. Wherefore (2) proceedings under it or acts under it should be enjoined. As far as, my recollection am I wrong or right in -- in having an impression that in your State, you can, one can get an advice from somebody. The Governor or the legislature you can get an advice of the opinion?
Gordon Madison: The Governor can ask for an advice or opinion and so can members of the legislation but nobody else can.
Felix Frankfurter: Nobody else.
Gordon Madison: And they don't have any force or effect of law.
Felix Frankfurter: No, but as of the -- the Governor in the legislature.
Gordon Madison: That's all that I know of.
Felix Frankfurter: But by statute --
Gordon Madison: Though lots of them will try to get them with the admonition.
Felix Frankfurter: Is that by statute or your constitution?
Gordon Madison: I'd -- I don't whether -- I don't recall whether it's constitution or the statute.
Felix Frankfurter: All right.
Gordon Madison: Now, after -- after the Supreme Court had gone into these things that I pointed out, the constitution and rules of the -- this organization and -- and make that declaration for whatever they be aware. Now, that case then went back to the District Court for the second time that court had let it stand for a reasonable time. In order to enable the appellants and I point that isn't one of them that makes (Inaudible), showing the remedy, he might have in the state court. And then insisted in that court, that the District Court then pass on the constitutional issues which it raised when it first filed the suit. Then the three-judge District Court, we had a hearing and argument up there. We introduced the record that before the Supreme Court of Alabama, introduced the briefs on both sides. And then Judge Graves who was the presiding judge in that case along with Judge Grooms and Judge Lynn. They stated that they had given careful consideration to the decision of the lower court, that is the lower state court and the decision of the Supreme Court of Alabama and used the language, as I recall that they were clear to the conclusion that the state courts had not construed the Solomon Act in an unconstitutional manner.
William J. Brennan, Jr.: Excuse me. Can you please tell me what -- what's your understanding of this allegation of the complaint? I'm looking at page 77, tenth paragraph. Reads substantial civil and property rights are depended upon the determination of this controversy and the actions of respondent consisting of the said statue applies from plaintiff and its members and so forth.
Gordon Madison: What do you -- you mean, Your Honor that you might sort of stretch that a little bit to get it cover the constitutional question?
William J. Brennan, Jr.: I'm asking you what it means as you understand it.
Gordon Madison: Where does that appears, sir?
William J. Brennan, Jr.: It appears in paragraph 10, the second sentence, substantial civil and property rights are depended upon et cetera.
Gordon Madison: Well, in short I think it means, Your Honor, that they've been losing $2 a month per person in dues. And if you construe this, actually it was not to embrace them they'd be able to have those members participate for the collection of dues.
Felix Frankfurter: What happens after the Alabama Supreme Court got through because of what they did in 262. Is that automatically does that go back to the Circuit Court of Montgomery County or automatically that's just an affirmance of the decree below?
Gordon Madison: It was an affirmance of the decree below.
Felix Frankfurter: How did you know (Voice Overlap)
Gordon Madison: They didn't file an application for rehearing. They didn't seek to have any determination and the further determination if one could be had and I don't whether it could be if not by this Court or what Supreme Court of Alabama.
Felix Frankfurter: That is -- that is Montgomery -- what you say -- to see if this is correct, in your -- in your point of view. That the Montgomery -- the county court of Montgomery County or the Circuit Court of Montgomery County in effect had before it a prayer for a declaration whether this union or this organization is within the Act period. They said they were within the Act. So, therefore, they wouldn't enjoin. Then went up to Supreme Court, the Supreme Court said yes, you're within the Act period. And that's all. Is that right?
Gordon Madison: That's correct.
Felix Frankfurter: That's your view, of what took place in the Alabama court?
Gordon Madison: That's correct, sir.
Felix Frankfurter: And no more?
Gordon Madison: No more.
William J. Brennan, Jr.: I've thought your position was that the petition, Alabama court the second clause it says looking for the old picture. This (Inaudible)
Gordon Madison: Well it did, Your Honor, but I think what -- what I meant was that's the same thing that he asked, if -- if I understand it correctly. I don't get the distinction between them.
William J. Brennan, Jr.: But did the Alabama Supreme Court say, you notice of Internal organization?
Gordon Madison: No, sir.
William J. Brennan, Jr.: I -- I understand it, within the purview of Solomon Act.
Gordon Madison: No, sir. They did not say that.
William J. Brennan, Jr.: What did they say?
Gordon Madison: It said that you're not a discussion group.
William J. Brennan, Jr.: That's what I thought.
Felix Frankfurter: And therefore, and therefore it was within the Act?
Gordon Madison: That's right sir.
William J. Brennan, Jr.: It forces within the Act.
Felix Frankfurter: Period.
Gordon Madison: Period. And they, they got my period in the wrong place. But I understand to be in the right place.
Felix Frankfurter: I understand that.
Gordon Madison: Now, I do wish to deal just briefly in conclusion with this. As I said, that the courts have said, this Act could be construed on a constitutional manner.I think that means something. I think that take cares of some their argument about discrimination. But as I pointed out, that the labor relations in different parts of the State of Alabama, as if the different county Government body, the different city Government bodies and difference maybe among the teachers and the Board of Education. It may be necessary and desirable into some parts for the local communities to legislate by ordinance of resolutions or by rule or some other way. Either one way another on these questions. Now, yesterday, Mr. Chief Justice has been asking about the higher institutions of learning.
Earl Warren: Yes.
Gordon Madison: Over in the University of Alabama, are possibly our two largest. They are governed by Board of Trustees. And it -- the -- it is provided on their constitution that the sole management and control of those two institutions, shall vest in the Board of Trustees. Now, maybe the others are covered in the exemption containing the statute or that's are not covered by the Solomon Act, to -- to have Board of Trustees or some other civil board. They undoubtedly have rule-making power just exactly like of County Board of Education or City Board of Education. If they adopted the rules, the question would be as -- as I conceive it to be whether not that rule that they've adopted proscribing public employment, of course, of membership to the labor union whether or not that was a reasonable rule. I believe this Court have said that there is constitutional protection to a public employee against unreasonable arbitrary action.Now, with sum on all of these reasons I pointed out about the activities of -- of the labor union they maybe entirely in order -- entirely order permissible in private employment but not in public employment.
Earl Warren: What -- what percentage of your employees of your port authority that -- that's mentioned in here, along the brotherhoods?
Gordon Madison: Your Honor that their game there maybe a dispute. It's not the purpose between counsels. It is my -- if my recollection of what that act provides and what our state statute said that all of them belong, because all of them are railway employees. Now, I understood him to say yesterday that there were some excluded who worked for the docks that were not railway employees. Now, it's marked in the section that that is a mistake that I think the one that excluded the whole railway employees.
Earl Warren: Well, does the Act say so? I don't (Voice Overlap) --
Gordon Madison: It refers to another Act in the code and that Act said so.
Earl Warren: Oh, I see.
Gordon Madison: And, I think it had the same situation that refered to that when it was up here. They did the same thing and your Court pointed that and sees nothing wrong with it.
Felix Frankfurter: Mr. Attorney General --
Speaker: (Voice Overlap) --
Felix Frankfurter: -- I think it -- I think it's appropriate for me to say it, as I've now examined the brief for both sides for the Supreme Court of Alabama and the reply brief of the appellant in this case. They are here and in typewritten form. And I -- on my examination you are fully correct that the issue that was posed before the Supreme Court was the issue of construction. And in the -- but this qualification which I do not think is a qualification that the appellants here urged their construction on the ground that a different construction would raise constitutional questions. But the issue of whether or not the Act itself is constitutional was not as an issue put before that Court. You say in this present suit, an answer was filed by the respondent and the sole issue is whether or not the complaint is the labor union or other labor organizations within the meaning of the Solomon Act. And the reply brief by the present appellant takes up questions that were evidently put from the bench in the argument before your Supreme Court and the reply brief does not raise constitutionality but raises the question whether this is an organization that comes within it by virtue of its activities or whether it's the debating or a cultural organization. I think you're wholly correct -- you are wholly correct in my reading of the brief as to the issue that were put before the Supreme Court of Alabama.
Gordon Madison: Thank you.
Earl Warren: Mr. Shadur, and would you respond to that particular phase of the case please?
Milton I. Shadur: Yes, Your Honor I will. Mr. Chief Justice if it please the Court. I think that a good deal of clarification can be obtained here if we see exactly what the course of this litigation was and why the issues were raised in the places that they were. We start out with the immediately prior to the passage of the Solomon Act with this union which engaged in activities which we will assume for the moment are constitutionally protected. Now, then, the Solomon Act is passed at that point. In literal terms the Solomon Act applies to the point of union. At that point employees begin to leave it and the union goes to a point where from 250 members you end up with one. We, thereupon, go into the Federal District Court in order to challenge the constitutionality of the Solomon Act. And the Court tells us, "No. You can't do that because although perhaps the Solomon Act literally read, is unconstitutional. We cannot presume that the Alabama courts will so construed it." They then say, "We will abstain from exercising our jurisdiction until such time as a construction of the statute may be obtained from the Alabama courts." Now, then, we go into the state courts. We file the same complaint because we have the same activities. But because we're doing it in order to obtain a construction so that the constitutional question which is then pending before the District Court, the United States District Court can be raised with the benefit of an authoritative construction of the Act, we then raise it in exactly the manner that Mr. Justice Frankfurter has stated. We put the fact situation before the Court. At that point having put the fact situation before the Court we say, give us a declaratory judgment on this real controversy which exists between this union and the State of Alabama as to whether this statute on these activities can apply to this union. Because if it is applied, it would raise serious constitutional questions. And we stated specifically in the complaint that the purpose of this action, and this is at pages 77 and 78 of the record. This bill for declaration of complainant's rights is brought in part pursuant to the judgment of the United States District Court for the Northern District of Alabama Case Number 7466. And we asserted that the respondents --
Hugo L. Black: You've read that though (Inaudible)
Milton I. Shadur: Pardon?
Hugo L. Black: To obtain (Voice Overlap) --
Milton I. Shadur: To obtain construction by the Courts of Alabama which is exactly the reason that we were bringing the complaint.
Hugo L. Black: Why'd you -- why'd you allege that the Act is unconstitutional in the petitioner, in you complaint?
Milton I. Shadur: Why did we --
Hugo L. Black: Where'd you allege that?
Milton I. Shadur: In which complaint, Your Honor?
Hugo L. Black: In the state court.
Milton I. Shadur: In the state court, the only reference to a possible allegation of unconstitutionality is the one that Mr. Justice Brennan referred to in paragraph 10. But we specifically brought this action for construction, for a declaratory judgment because the federal court already had jurisdiction, for purposes of determining the constitutionality.
William J. Brennan, Jr.: Well, it'd fair to say that you neither sort nor desired a determination of the Alabama court on the issue of constitutionality because you felt that was pending in the federal court and wanted it determined there?
Milton I. Shadur: That's correct, Your Honor. We already had a case pending. The only reason for any Alabama state court proceeding at all is because the judgement of the Alabama state courts on what the statute means, on the construction of the statute, is binding on the federal courts but the court which first had jurisdiction was the Federal District Court, the three-judge court. That was a court in which the constitutional question had been raised and was pending subject only to the obtaining of a construction to see whether our constitutional question may not have been premature but --
Felix Frankfurter: But must the Alabama Supreme Court decide constitutionality on an argumentative implication that the issue before Federal District Court involved constitutionality if they construe it this way? Can Alabama Supreme Court -- were the tedious people, and there's a good deal of respectful autonomy between state courts and federal courts. Why can't the Alabama or the Supreme Court says if you want us to declare these unconstitutional aspects?
Milton I. Shadur: Well, Your Honor, the Alabama Supreme Court in the question as presented to us, is confronted with an argument that if it construes the statute so as to cover these activities, serious constitutional problems will be raised. If the Alabama Supreme Court, nevertheless, applies the statute to us, the constitutional question which we have preserved in the three-judge District Court is at point available to us and ripe for determination.
Felix Frankfurter: But -- but really if you say to the Alabama Supreme Court or to this the constitutional questions are avoided if you construe it one way rather than another, that isn't a necessary and automatic rule that it must construe that way. That is a proper consideration as this Court indicated yesterday. If you please, an important one in construction. But the Alabama Supreme Court for within its power, about which we can say nothing, thought the consideration which were urged to give it one construction rather than another, didn't require that construction. And it came to an end. And it -- in its determination with that. So, that isn't an implication that it would declare that the statute unconstitutional if that issue were pressed before it.
Milton I. Shadur: That's correct.
Felix Frankfurter: That both progress themselves with issues that are pressed before it.
Milton I. Shadur: That's correct, Your Honor.
Felix Frankfurter: Occasionally, rarely and not often wisely they take matters to respondent. But on the whole if one can say we'll only adjudicate the matter that's pressed before us.
Milton I. Shadur: And that's correct, Your Honor. And the only reason that we were in the state courts was to secure the construction. This is exactly --
Felix Frankfurter: Were you barred by -- I don't know -- I think about it, needless to say. Were you barred by Alabama, by local law from asking the Court that if you are honest you decide if this Court, you decide the construction question against us then 0.34 whatever it is, then we insist that the statute is unconstitutional. Did you ever do that in the Alabama's Supreme Court?
Milton I. Shadur: No, Your Honor we did not.
William J. Brennan, Jr.: Do you place particular significance in the fact that this three-judge proceeding was pending in the District Court? For example, suppose you had not brought any proceeding at all in the federal court until after the proceeding in the Alabama court.
Milton I. Shadur: Yes, sir.
William J. Brennan, Jr.: Would you have been in a better or worst position in your view than you are now?
Milton I. Shadur: I think we would have been in the worst position in that situation. I think, that the pendency of the -- the three-judge court proceeding and the fact that our proceeding into the Alabama courts was in order to comply with the judgment of the three-judge court is a -- is an extremely significant fact in this case because we were directed to go to the Alabama courts, not directed to go there to -- to raise the conditional question --
William J. Brennan, Jr.: Did you have any feeling that you would be barred under the instructions you had from the District Court from raising the constitutional question in the Alabama court?
Milton I. Shadur: No, Your Honor. It was not a question of barring. It was a question of -- of the terms of the direction which the District Court gave us.
William J. Brennan, Jr.: You comply (Voice Overlap) --
Milton I. Shadur: The District Court then told us --
William J. Brennan, Jr.: (Voice Overlap) --
Milton I. Shadur: -- to go, to get a construction of the statue and go to get a construction of the statute we did. And we obtained that construction. Now then --
William O. Douglas: Is that order in the record a -- when they requested that you go to State?
Milton I. Shadur: Yes, Your Honor. That is in the record. You're having to hear it.
Felix Frankfurter: (Inaudible)
Milton I. Shadur: I'll find it. And that's -- in the -- at page 50. Pages 49 and 50.
Speaker: Thank you.
Milton I. Shadur: Providing that the action is not dismissed but is retained and will remain pending for a reasonable time to permit the exhaustion of such state administrative and judicial remedies as may be available. And immediately following that on page 50, was our emotion filed in the Court in which we advised them that pursuant to the order of the Court entered on November 9, appropriate proceedings will be brought promptly by plaintiffs for construction of the Alabama statute here involved. Now, then, having --
Earl Warren: Mr. Shadur --
Milton I. Shadur: Yes -- yes, Your Honor.
Earl Warren: -- before you -- you get off of that matter. Can we assume that you and the -- and the Attorney General are -- are in accord, to the effect, that the question of constitutionality was not raised either in your briefs or in your arguments in this proceeding?
Milton I. Shadur: Yes, Your Honor. Except in the inferential manner to which Mr. Justice Frankfurter has referred. In the -- in the brief at page 2 in the Alabama Supreme Court, the step, the --
Speaker: Was your --
Milton I. Shadur: -- appellants here, in our brief had as Point C. "If the statute be construed as the community insists, grave issues as to it's constitutionality will be avoided there," and it goes on citing the same cases which we refer to here, Wieman against Updegraff. Stating that that is so, that is the avoidance of the constitutional issues because public employees enjoy all the constitutional rights guaranteed by the Due Process Clause. They cannot be removed from public employment in violation of those basic rights. Citing Wieman, we go on to say that the Alabama statute before this Court, if applied to this committee would be incompatible with an exercise of the rights of free speech and free assembly, quoting and citing from Thomas against Collins. And stating, referring specifically to the Federal District Court proceedings in which we had challenged the unconstitutionality, referring to what the Federal District Court had done in directing us to go to the Alabama court and stating that this is why we were before the Alabama court.
Felix Frankfurter: Would you mind stating whether there's anything in what appeared before the Supreme Court of Alabama that would preclude that court today? An issue was before it in agreeing to your argument before this Court that the statute offends the Equal Protection Clause in its exception without at all, even (Inaudible) to adhere to that before that court, that advice which you now claim as a serious body?
Milton I. Shadur: My recollection, Your Honor, is that the -- the argument which is now appraised as the Equal Protection argument in this Court was not raised in a similar manner to the one that I've just read --
Felix Frankfurter: But the (Voice Overlap) --
Milton I. Shadur: -- before the Alabama Supreme Court.
Felix Frankfurter: -- argument isn't the -- isn't that -- isn't discrimination?
Milton I. Shadur: No, Your Honor. That we -- I say that that argument was not raised in the same term.
Felix Frankfurter: But -- you -- you urge that strongly here. If you read --
Milton I. Shadur: Yes, Your Honor. And I think that it's a substantial point here.
Felix Frankfurter: But I'm not questioning that. I'm merely suggesting that nothing that the Alabama Supreme Court would bring any (Inaudible) difficulty in its way of deciding, of saying that issue never went before us. We see its substantiality, we yield to it. Is there?
Milton I. Shadur: Your Honor, the Alabama Supreme Court is on the very issues which are here stated, conscious of the United States Constitution, has held this union and its activities as coming within the Solomon Act. At the time when it knew that we have a pending proceeding which involved and attacked on the constitutionality of the Act if it were applied to our organization and with an argument that raised that problem. Subsequent to that ruling, we came back to the United States District Court and said we have an authoritative construction, which is what you sent us to Alabama for. And having obtained that construction we know say, that this statute as so applied to us, is unconstitutional.
Harold Burton: But then if we should rule upon the -- on issue as now presented to us and would mean that we might be declaring unconstitutional, an act of the State of Alabama, the Supreme Court of Alabama has not passed on that issue.
Milton I. Shadur: Well, Your Honor, in -- in passing on the application of the statute the state Supreme Court has reviewed in all aspects, whether this statute can or cannot covered our union. In exactly, the same manner as for example in the Spector cases, which came before this Court, in which there was also the situation of abstention from jurisdiction. And after this Court directed the plaintiffs in that case who were attacking the unconstitutionality of the Connecticut taxing statute, directed those people to go to the state courts of Connecticut. The Supreme Court of Connecticut refused to pass on the -- on the question of the federal constitutional right. It decided what the construction of the statute was, in light of the fact, that there was already a District Court proceeding pending. And armed with that construction, the plaintiffs then came back to the federal courts and came to this Court and this Court decided the merits that that statute as so applied by the Connecticut Court was unconstitutional.
Harold Burton: This case, the Federal District Court held the case and -- and asked you to go back and exhaust your state remedies. You went back and exhausted them on the -- on the statutory construction but didn't say a thing about the constitutional question that's not been exhausted. Although it's within their jurisdiction to pass on it.
Milton I. Shadur: Well, the exhaustion of the state remedies that was directed by the United States District Court was to secure a construction. Because the thing that the United States District Court hypothesized, Your Honor, was that it was possible that this statute although literally it did not so read, might be applied only to cover an organization in which members belong for the purpose of engaging in collective-bargaining. That issue is no longer in this case. This has -- we have arrived at a conclusive construction and we know have the opportunity to raise this problem.
Earl Warren: Are there any authoritative finding on the part of your -- your Supreme Court in Alabama, to the effect that this Act as applied to you is constitutional?
Milton I. Shadur: An authoritative finding in the Alabama Supreme Court?
Earl Warren: Yes.
Milton I. Shadur: There is no specific statement in the holding with respect to that problem, to my recollection. I might say --
Earl Warren: How -- how can we know then that they would find that -- that is the fact?
Milton I. Shadur: The Attorney General, also argued and much more directly than our argument in the briefs, in the Alabama Supreme Court, that the Solomon Act is valid and is not subject to constitutional objection. Necessarily, the Alabama Supreme Court's decisions with the arguments that had been placed before it, subsumed the constitutional question even though that they may not have said in so many terms. We find that we can constitutionally do so. They have said, "Well, we don't think that the activities of these people are strictly such and so. We also find this and therefore this people are a labor union within the meaning of the Solomon Act." But having had the arguments presented to them, if they did, both by the Attorney General and by ourselves, they necessarily had to pass that problem in order to find the statute applied. Because if they found the statute applied and as so applied was unconstitutional, then they would either have to say, "We will construe the statue differently" or we will say that it would apply, but having so applied it, it is unconstitutional statue.
Earl Warren: Well, but -- you -- you rely heavily on the question of discrimination here.
Milton I. Shadur: That's correct, Your Honor.
Earl Warren: You did not argue that all before the Supreme Court of the State, as I understand.
Milton I. Shadur: That's right, Your Honor.
Earl Warren: Now, suppose that we didn't take any stock in the rest of your argument, but did rely on that. Would there have been a finding in your Supreme Court based upon on argument, that -- that it was not subject to the objection of discrimination?
Milton I. Shadur: Well, in order to avoid that problem, I am prepared to say that the -- that discrimination argument from our point of view is a constitutional argument in this Court. We would -- if -- if that were a preliminarily question, we would consider that only to the extent that it indicated a violation of due process. So, there is no -- in other words, that the due process argument is enhanced by the exclusions from the statue to the same extent that the basic classification is arbitrary. So, are the exclusions arbitrary and show a due process violation.
Felix Frankfurter: (Voice Overlap) They're quite unrelated.
Milton I. Shadur: I agree, Your Honor. I say that the --
Felix Frankfurter: You mean that -- of the statute might be as constitutional -- might be completely void of any difficulty with the Due Process Clause and yet they found on the Equal Protection Clause.
Milton I. Shadur: That's correct, Your Honor. I'm saying that this statute --
Felix Frankfurter: It's projecting the Equal Protection Clause out at just the face of due process.
Milton I. Shadur: No, Your Honor. I'm not attempting to do so. I say that -- I think that this statute flounders so badly on the Due Process Clause that the Equal Protection problem is not necessary to the case.
Felix Frankfurter: No. But you may not agree with your -- the Chief Justice --
Milton I. Shadur: I --
Felix Frankfurter: -- says, we may be more impressed by the exemption.
Milton I. Shadur: I can only hope that you do, Your Honor.
Felix Frankfurter: [Laughs] It's a good hope to be probable.