Earl Warren: Number 37, Gene Durfee et al., Petitioners, versus Julia E. Duke. Mr. Ross.
August Ross: Mr. Chief Justice, gentlemen. This controversy had its inception about 1956 in the filing of acquired title suit in Richardson County, Nebraska is most quite title suits went, there was no big difference that involved. However, the defense by the defendants of the property was without the jurisdiction of the court that is in the adjoining State of Missouri, it was river bottom ground. The defendant was served with process and the defendant appeared in the Nebraska suit, specifically set up the question of the jurisdiction that is the contention that the ground was situate within the State of Missouri and therefore, the State of Nebraska did not have jurisdiction. She offered evidence, she testified personally. It --
Arthur J. Goldberg: (Inaudible)
August Ross: None, Your Honor.
Arthur J. Goldberg: (Inaudible)
August Ross: I understand there's no such contention. And that there was a decision of the District Court of Douglas -- of Richardson County, Nebraska affirming the title of the plaintiff which was based on a tax deed and deeds from other individuals of record. Then, the Missouri claimant, if I may refer to her as such, prosecuted an appeal to the Nebraska Supreme Court. And under Nebraska procedure in an equity action, the trial is de novo. And she has then a new and complete review of the evidence, on the record however, before the Nebraska Supreme Court and that Court affirmed the judgment of the Richardson County District Court, made fact findings and confirmed the convention of the District Court that the property was in Nebraska. And I might say in that regard, that every court that has reviewed the evidence has concluded that this ground originally was in Nebraska, of that, they all made the determination that when Nebraska was admitted to the union on basis of evidence offered, the ground in dispute was in Nebraska as opposed to being in Missouri and if -- of necessity, is in one State or the other. After the judgment was affirmed in the Nebraska Supreme Court and she sought no appeal from that judgment to this Court. She went back across the river and then the Circuit Court, I believe, they call it, of the State of Missouri instituted precisely the same action, same parties, no dispute about, stipulated and found no (Inaudible), same real estate, no question about it, stipulate. They raise precisely the same issue, ownership of the ground and the -- repeated the contention that it is in Missouri. The case was removed to the Federal District Court for the Western District of Missouri and tried there before Judge Duncan and the defense of res judicata was asserted and the court took evidence and by agreement, all of the evidence which -- went into the Nebraska court was received by stipulation of having been previously prepared in the Nebraska appellate proceeding. There was some offer of additional evidence but, in my opinion and consequential, it was matter to a forester who testified that a tree was cut on this ground and in his opinion the tree was of a certain age. Well, it doesn't conflict with the ruling because the Nebraska court found that the ground -- the grounding question not only was in Nebraska, but it existed for a fixed period of time, it doesn't conflict with it. And there was -- in this ground, I might state, is some one to two miles west and by west -- I mean -- I mean west, from where it was at the time Nebraska was admitted to the union. That's just to give you an idea of the distance that the river had to move in order to move with it at the boundary. So that it was our contention there and the court, although it did find it necessary to determine on it, it was our contention that once that boundary line was established, it was incumbent upon them if they contended that the ground was in Missouri to establish that that river moved from its initial point at the time Nebraska was admitted as the result of accretion as opposed to avulsion because as soon as you have the first avulsion, the boundary would remain where it was and the state boundary wouldn't change it but the court concluded that the ground in question was situated west of a point where the river was established and didn't have to determine the other feature as to how the river got to where it was since it was already west of that particular point, the ground was in Nebraska and consequently, it didn't come to any conclusion as to how the river changed, that is whether by accretion or avulsion up to a point that is referred to in the pleadings and in the briefs, as what they call the old shoot. So, I mentioned that so that there was really no dispute as to the fact that there's going to lease at one time was in Nebraska and the Nebraska court held that it is still in Nebraska. Referring en banc in --
Potter Stewart: The -- the boundary between the two States, Mr. Ross, is the Missouri River at that point.
August Ross: That is correct, sir.
Potter Stewart: Is the midstream of --
August Ross: Midstream --
Potter Stewart: -- in the Missouri River --
August Ross: -- of the Missouri River.
Potter Stewart: -- is not one bank or the other?
August Ross: No, sir.
Potter Stewart: Midstream.
August Ross: Midstream is the boundary line between the States of Nebraska and Missouri. The Federal District Court granted the defense or honor to recognize the defense of res judicata but he proceeded to make what he called fact findings that in the event that he was free to conclude independently of the Nebraska decision as to where the ground was situated, he would conclude that the ground was in Missouri. And I might mention that he mentions it and he doesn't try to answer how the ground ever got from where it was originally at the time Nebraska was admitted to any particular point by accretion or avulsion. He -- and the opinion is in the record, he says assuming that the main channel of the river was west of the ground in dispute. Well, I'll submit that if we're going to assume that one, we assume the very crux of our argument because if the main channel of the river was west of where the ground is in dispute, then the ground is in Missouri.
William J. Brennan, Jr.: May I ask you?
August Ross: Sure.
William J. Brennan, Jr.: (Inaudible)
August Ross: I can't say that -- obviously, of course, we have no authority to intervene. We tried the interest, the State of Missouri in the litigation and they were not interested and I assume, although, of course, I cannot speak that the State of Missouri.
Hugo L. Black: (Inaudible)
August Ross: Well, that, of course, would conclude the boundary line but I don't think that it would conclude the rights of the parties particularly. In other words, their rights, as I stated besides the tax deed, the -- it was also dependant upon other conveyances in the chain of title. So that conceivably, although essentially, the case was tried on the basis of whether it was in Missouri or Nebraska, the result could still be otherwise even though the court should find that -- with boundary made them.
Earl Warren: Well, what would happen if Missouri did bring such an action in this Court and -- and this Court found that the property was in Missouri, what would happen to your judgment?
August Ross: Your Honor, I don't think it would have any effect on. I don't think that --
Earl Warren: You'd -- res judicata would still apply?
August Ross: I -- I think -- that is correct, Your Honor. This Court certainly has jurisdiction to determine the boundary line but in determining that boundary line, I don't think that it uproots all of the interest of the parties in their title along the side of -- along the river or if we just have --
William J. Brennan, Jr.: Is that to say (Inaudible)
August Ross: Sir, I didn't understand you.
William J. Brennan, Jr.: Is that -- is that -- is it -- is the answer you just gave to the Chief Justice mean that you say your title is good whether the land is in Nebraska or in Missouri?
August Ross: That I -- I'm sure is the result of -- that's our position.
William J. Brennan, Jr.: That would be, I see.
August Ross: Yes, sir.
Byron R. White: If you win here, it won't make any difference whether the land is in Missouri or Nebraska, you alone. And if Missouri brings the lawsuit and it was -- if you win here, then Missouri brings the lawsuit here and the result is the reverse, you will still own the competent.
August Ross: I think that's correct, Your Honor, I can't see how it would be otherwise.
Speaker: (Inaudible)
August Ross: It might, Your Honor, but let me -- apparently, I haven't made myself too clear. In addition to the tax title, we also have deeds of conveyance from the previous owners of record of the property. Now, it is true that they refer to that property as being situated in Nebraska in those conveyances, but I think that that dissolved those ought to be a matter of identification.
Earl Warren: What is your title rest on -- in -- in Nebraska court? There -- on your tax title or on these other deeds?
August Ross: Both of them, Your Honor, and that they were --
Earl Warren: The court --
August Ross: -- they were --
Earl Warren: -- specifically said so.
August Ross: (Voice Overlap) so to speak. They were not repugnant to each other. They --
Earl Warren: I beg your pardon.
August Ross: -- they were complementary deeds, in other words, deeds from everyone of record that claimed any interest in the property as well as the -- the tax title which is their procedure is equivalent of the mortgage foreclosure. Actually, they instituted precisely the same ways, process, issues, individuals served and sale is at a public sale.
Tom C. Clark: You have possession?
August Ross: On the question of possession, Your Honor, after the affirmance of the Nebraska decision, a writ of assistance issued from the Nebraska court and the sheriff of Richardson County, Nebraska accompanied Mr. Durfee, placed him in possession of the property and he moved a building of some type on their cabin and proceeded to remain there and was prepared to remain there under force severance. And rather than avoid any possible conflict and it had all the potential of possible conflict, we entered into a written agreement with the parties on the other side that the property would continue to be farmed during the pendency of the litigation, that the proceeds would be placed in trust and that they would abide the results of the litigation and then value mention never intended to get to it because in the supplemental statement of facts which the have filed in here, they make the assertion that we are not now and never have been in possession. And I state that because the record will show from the Nebraska courts that the writ of assistance issued, it will show the return of the sheriff that he physically and actually accompanied him to the property, placed him in possession of it and then certainly, they have knowledge of our pending existence agreement with them that the farming and -- will continue and the proceeds will be deposited with member banks which they have designated and will abide themselves with its location.
Arthur J. Goldberg: (Inaudible)
August Ross: Yes, sir.
Arthur J. Goldberg: (Inaudible)
August Ross: I dispute -- is, Your Honor, he doesn't for instance, when it comes to analys of the -- analysis of the evidence, doesn't touch on the evidence, for instance, that was offered by the defendants themselves in the District Court where they testify -- where their witnesses testified and there was one gentleman I recall in particular, there was 90 some years old and he lived on from this river about all his life and they produced the witness testifying that he recalls steamship, paddlewheels coming up and down what they call the old shoot, they don't offer that. As a matter of fact, in commenting on the evidence, Your Honor, I'd like to point out that the claimant in the Missouri action then testified again in the Federal District Court and her testimony -- was testimony when she not offered in the original act. In somewhere along the line, we've got to stop. It's where we're going.
Arthur J. Goldberg: (Inaudible)
August Ross: I could see it, Your Honor, that he made that --
Arthur J. Goldberg: (Inaudible)
August Ross: That's -- that assertion is -- is bold and is firm as -- as anyone can make it, that's true. And I would like to point out in the regard too, the obviousness, it managed of bringing over and submitting to a court a cold record of a proceeding that was tried in another State. Its hard, really, to get the full import of the testimony when he reads that and as opposed for instance, the Nebraska court that -- that the witnesses came in, they testified, you have the opportunity to observe their demeanor. There are -- are many factors involved there. And as I say, as far as the evidence, I'm sure that we can go through the case and you'll find that there was a conflict of evidence, there is no doubt. Then proceeding, the case then went for review to the Eight Circuit Court of the Appeals. In the Court there, in effect, said that res judicata in full faith and credit are not applicable that the Federal District Court could make a sense or did make a determination that it was in Nebraska. It would remand it, did remand that case or ordered it remanded for the Federal District Judge to go ahead and directed him if he is still has an opinion, I presume, to enter the judgment contrary to the Nebraska Supreme Court. Now, I submit fundamentally, without first touching on the authorities and they cited, I don't believe any authority for the action. Let's assume just for the purposes of argument that that this is a proper determination, then where are we? The Court concludes that as a matter of what they call "certain policy", when you have a land question involved that it is not necessary to give full faith and credit to the determination of the other court. So the Missouri court says, "We conclude that this ground is in Missouri and we don't have to pay any attention to the Nebraska's judgment and govern ourselves accordingly." Well, if that is true, then Nebraska, on the other hand, has -- doesn't have to pay any attention to the Missouri judgment because if it's a matter of policy, Nebraska concludes that the judgment -- that the ground is in Nebraska and then can disregard the Missouri judgment. And where -- where is the litigation to end? Where is it final? Because if res judicata is not applicable, then you're -- you're just be chasing yourself from one jurisdiction to the other and the -- there is no limit on the number of times that you can assume the same matter if -- if you don't have any limitations on res judicata.
Earl Warren: May I ask you --
Arthur J. Goldberg: (Inaudible)
August Ross: Your Honor, they could --
Arthur J. Goldberg: (Inaudible)
August Ross: -- as against -- again, as against the determination of the boundary line.
Arthur J. Goldberg: But what is (Inaudible) there is filed as subsequent private litigation --
August Ross: Subsequent private litigation.
Arthur J. Goldberg: (Inaudible)
August Ross: As to the subsequent private -- subsequent private litigation but not a litigation that have occurred before, yes, Your Honor. The only problem is --
Arthur J. Goldberg: (Inaudible)
August Ross: Obviously not and so we are put to our only remedy of resorting to the Court that we did reserve. Now, this Court has held in -- in a number of decisions that jurisdiction like other matters are fact matters that when they're determined, when they're litigated that they become binding and have the same force and effect as res judicata. There are a number of decisions starting with the Hammond case, and this parallels the Hammond case in many respects and that she, by she, the Missouri claimant, sought a review in the Nebraska Supreme Court of that Court of this very question. Now, she was entitled and did receive a trial de novo but she's not happy with the result.She did not seek a review of them from that to this Court but just went over and found another District Court and re-file the lawsuit. I submit that the Hammond case touches on it very definitely and says that -- that she voluntarily contend to it. That case also involved a matter of an appellate review in the state court and the court says there, all the principles and res judicata including subject matter itself are applicable. She's bound by the decision and it's final.
Arthur J. Goldberg: But she can file a (Inaudible)
August Ross: How is that?
Arthur J. Goldberg: (Inaudible)
August Ross: And the same thing is true in the Hammond case of course. The parties didn't volunteer to commence, somebody had to institute the action. That is true. But I think that also in -- in the -- in the subsequent cases that have been before this Court touching with subject matter, jurisdiction, this Court has held that where the matter of jurisdiction of the Court was litigated, actually litigated in the forum which determines that it has jurisdiction and that determination is permitted to become final, that -- then the parties are bound by that determination. Now, the Circuit Court yet cite, I believe it was two or three cases where this Court did not apply the rules of res judicata but I submit that there are marked distinctions in the -- in those cases. There were specific -- one case with a specific provisional act in a bankruptcy action wherein the Bankruptcy Act specifically provided that no jurisdiction in banks, the Court existed over an insurance company. And I believe there was determination of adjudicating a bank so -- in an insurance company and I also submit in that case, there was not an active adjudication of the question of jurisdiction. It was the --
Arthur J. Goldberg: But what if the (Inaudible) to the certiorari, what would have been the federal question (Inaudible) the record?
August Ross: Your Honor, I'm not so sure the she did have one but she was --
Arthur J. Goldberg: (Inaudible) so that could be that there would be no (Inaudible) case at all.
August Ross: That might very well have been. That often is the case, I'm sure.
Arthur J. Goldberg: (Inaudible)
August Ross: Yes, Your Honor, but with this qualification, when that lawsuit was instituted, she, at that time, had the option to say, "I will not litigate the question in this Court and then she would not have been precluded from litigating the question in Missouri but once having commended that Court to litigate --
Byron R. White: Who'd you been -- you don't think she would've been concluded if she would've been served by publication? This was a quite title action.
August Ross: That's quite title action but I don't think she would have been concluded in the State of Missouri. Then you still have the question as would have had the question open, I think, as to where the ground was situated. I believe in the case of Riley versus New York Trust, it dealt with a -- an in rem action but it dealt with an action for the probate of an estate. And in that case, the husband came in and -- it's a rem proceeding and contested in the State of Georgia, the question of the domicile of his wife contending that it was New York and that the Court did not have jurisdiction in Georgia that decided against him. Then an administrator was appointed in New York and this Court stated in its opinion that as far as the husband is concerned, he win in the State of Georgia. He litigated that question and he is bound. He, however, did determine that there was not the privity relationship between the husband and the administrator and therefore, the administrator was still free to --
Byron R. White: Although the defendants here had been cleared by publication and had not appeared personally, they would have been permanently and forever barred from re-litigating it in Nebraska.
August Ross: I think that that is correct, Your Honor, that's the effect of Nebraska judgment assuming, of course, that (Inaudible) got --
Arthur J. Goldberg: (Inaudible)
August Ross: If she is contented that it was in another jurisdiction, I think that is correct or she could have removed the action in a federal court, if she didn't want the Nebraska state court to -- to litigate it.
Arthur J. Goldberg: (Inaudible)
August Ross: Well, we have diversity.
Arthur J. Goldberg: (Inaudible)
August Ross: Say the diversity existed and the value existed, I think that it would have been an action.
Arthur J. Goldberg: (Inaudible)
August Ross: Yes, Your Honor. She is a resident of Missouri. Our client is resident of Nebraska. But I don't think that she can come in, litigate at Nebraska, take her chances there and say, "Well, I don't like it there, so I'm going to go try it somewhere else."
Byron R. White: Well, how could she have removed if her tenants were also, maybe dependent from her?
August Ross: They were also residents of Missouri.
Byron R. White: They necessarily were residents of Nebraska under this plaintiff's theory.
August Ross: Well, first, in -- it depends on what you mean by residents. They actually lived and resided in --
Byron R. White: Is there any question that her tenants --
August Ross: Resided in Missouri? No, they lived, as a matter of fact, they lived --
Byron R. White: I see.
August Ross: -- even further in off of -- this was unoccupied -- by -- unoccupied and no structures on it. So I don't --
Byron R. White: There were (Inaudible).
August Ross: It was -- no structure, so I'm sure that questions were not have been involved. I will seek to reserve a few minutes for rebuttal if it's alright.
Earl Warren: You may, Mr. Ross. Mr. Brown.
Robert A. Brown: Mr. Chief Justice, gentlemen of the Court. If you will bear with me, I'd like to belabor the evidence a little on this case because the facts should findings and the legal conclusions are based, in my judgment, primarily upon a rather complicated set of facts. And I also expect to point out where Mr. Ross is in complete error in some statements he has made here. Now, this involves title to approximately 808 acres of bottomland which lies in the Missouri River bottoms shortly south of what's known as the "Little Old Bridge", that's the railroad bridge leading from Missouri over to little old Nebraska. Richardson County, Nebraska is on the west side of the river, Missouri is on the east. It's true the river, at that point, lies or flows south and easterly but I think you, gentlemen, will understand it better if we would assume that the river flows north and south. We can then place the left bank or the Missouri side on the east, the right bank or the Nebraska side on the west. This land is all on the east side of the river and is all joined to Holt County, Missouri. Now, prior to 1855, there was a survey in 1855, prior to 1855, the Missouri River very definitely laid at the east of this land. As some of you, gentlemen, will recognize a river of the type of the Missouri, a meandering river has, in historical times, occupied practically the entire bottom. The -- I would say the bottom of that point is, perhaps, and as an old duckhunter, I'm familiar with it, it's perhaps 12 or 14 miles wide. There is a lake, a big lake in Missouri located -- a state park, located a mile or two east of this present land which obviously is an obstacle remaining from one of the convolutions of the Missouri River. So there is no question that the river, and time has passed, has occupied all of the bottom. In 1955, it had moved to the west from its prior location, but at that survey, it was still east of the land in question. Now, in -- by the 1930s, the river was entirely west of the land in question. This suit, when it was filed, was filed not only against Julia Duke, who the defender or who I will call "Duke", but against her mother, Nelly Duke. Now, in the teams, Duke's father, secured land lying east of their land in controversy. This land, according to the testimony, began to accrete to that land. And in the early 1920s, Duke's father was raising cattle on this land, making use of the land. The land was forming, as we contend, as accreted land. Duke herself began curing the land later on. She got a swamp land title from Missouri in 1945. Mr. Durfee, who has never been on the land, that when Mr. Ross said he moved the house over there, Mr. Ross is incorrect. A house was moved over there and was placed on land belonging to the Cunninghams, which has nothing to do with this, and the Cunninghams told him to get off because he was trespassing and he got off. No house has ever been placed on this land by Mr. Durfee and Mr. Durfee has not been in possession of this land and the record will so indicate. Now, when this suit was instigated and as to Judge Blackman's opinion from the Eight Circuit clearly indicates, the suit was not only against Julia Duke but Mr. Durfee claimed he owned the Nelly Duke land. He claimed all of this land and the theory was that the river in 1855 was over here and by avulsion in the 1930s that it leaped over here, therefore, all the land in between remain Nebraska land. It was the theory of the Dukes that the river moved to the west by slow degrees, accreting on the east and decreting or cutting away on the -- on the west. Now, in the District -- Mr. Justice Goldberg, asked a question about service, Julia Duke is not a resident of Nebraska. She has never been a resident. She is not susceptible of service there. But in my judgment, she was badly advised and she went over there and entered her appearance and tried the lawsuit. I was not in the lawsuit at that time. But she did go over there and consent to try the case in the District Court in Nebraska, which is the original trial court. Now, in that case, bear in mind that Durfee, who had never been on the land and who had a tax title he got in 1956 for something less than $500 as opposed to the many thousands of dollars Duke had spent clearing portions of this land, he claimed it under a tax title and the Blackman opinion points it out, the Blackman opinion says, no -- in so many words that defendant Gene Durfee and Laura, his wife, claimed title of the land under Richardson County, Nebraska sheriff's tax foreclosure sale division to them in 1956. Now, for some unknown reason, when they talk about belaboring the evidence in Judge Duncan's opinion, and I'll come to that, the District Court, the trial court in Nebraska, in a very cursory opinion consisting of approximately two paragraphs, I believe, its in the record, divides the land. No rhyme, no reason, no statement why, but the court finds that the Nelly Duke land is Missouri land, which means, therefore, that the river did accrete, move west slowly at least to that point, but then suddenly finds that the rest of the land is Nebraska land and belongs to Durfee. It went to the Supreme Court of Nebraska and it was tried de novo. Now, bear in mind, the original claim of the petitioners was the river made one jump by avulsion from here over to here. The Supreme Court of Nebraska tries it on a totally different theory and finds that by some hook or crook that the land got down between Nelly Duke -- or the river got down between Nelly Duke and Julia Duke and then it jumped over here west and then it jumped back again to a form of shoot but the land remained intact. Now, that brings up the question of this tree which Mr. Ross says it below -- as -- of little value. There was a state forester from the Conservation Commission of the State of Missouri who testified that on river bottomlands in the Missouri River Valley, the first rule is (Inaudible) rules. Within a year, trees began in the form of cottonwoods. Now, bear in mind that this land was suppose to have existed intact from 18 -- 1855 until the time of this lawsuit. The cottonwood germinates about a year later. The largest tree on the uncleared area of the land was cut in section and the section was brought into court as evidence and it was aged by a forester and it is undisputed that the tree which was cut in 1959, the largest tree on the area, lot of the land that had not been cleared, was 35 years old, therefore, it began to germinate in 1924. And quite obviously, the land could not have been in existence all of these years or they're very deft and it would have been older trees. There were no older trees on the area which substantiates the theory of accretion. Now, after this suit was tried in the Supreme Court of Nebraska, and as I say, affirmed for what reason I do not know, I can't understand their language. It was decided that this was neither full faith from credit and it was not res judicata and that Missouri had a perfect right to determine for itself the question of land belonging to it.
Hugo L. Black: May I ask you a question?
Robert A. Brown: You certainly may, Justice Black.
Hugo L. Black: Is this really the boundary between the two States?
Robert A. Brown: The Missouri River at that point is the boundary between Missouri and Nebraska and further south, it is the boundary between Missouri and Kansas.
Hugo L. Black: What does the title depend on as to States?
Robert A. Brown: The title to the States?
Hugo L. Black: What does the title of anyone of this land depend on as to the States? What relations do they have?
Robert A. Brown: Well, the -- I -- if I understand you --
Hugo L. Black: If it's in Missouri?
Robert A. Brown: It's Missouri land.
Hugo L. Black: And if it's in Nebraska?
Robert A. Brown: It's Nebraska land.
Hugo L. Black: And what court has jurisdiction to determine that boundary there?
Robert A. Brown: This Court, the Supreme Court.
Hugo L. Black: It is your argument that one of the two States can do it or that others can do it?
Robert A. Brown: It's my -- my unqualified opinion that either State has a right to file an original action in this Court to determine the boundary line.
Hugo L. Black: But lacking that, how can either one of the States or in the judgment that's final in determining the boundaries?
Robert A. Brown: I don't think it can. I don't think either State can render a final judgment which will affect the boundary in the -- between the two States.
Hugo L. Black: I had an idea that one of you was saying if Nebraska could do it and the other one was saying Missouri could do it --
Robert A. Brown: Oh, no, no, you misunderstood me, sir. I -- I say that neither Nebraska nor Missouri can render an opinion which will finally determine the boundary if -- if Nebraska and Missouri, and clear information, and it's --
Hugo L. Black: Well, does the -- does the -- who own -- does this depend entirely on which State it's in?
Robert A. Brown: This -- this particular case depends entirely upon which State the land was in. If it was -- if it was a land belonging to Missouri, the opinion of Judge Blackman in the Eighth Circuit must be affirmed. If it was land belonging to Nebraska, then it would have to go back and -- and would be Durfee's land.
Hugo L. Black: Well, you're asking for the affirmance of the --
Robert A. Brown: I am asking for the affirmance of the opinion on the Eighth Circuit.
Hugo L. Black: On the ground that he has -- that Court had a right to determine that it was land belonging to Missouri?
Robert A. Brown: That Missouri had a perfect right to determine Missouri's -- the title of Missouri residents to Missouri land within the jurisdiction of the courts in the State of Missouri, yes, sir.
Hugo L. Black: And they're claiming the same thing with reference to Nebraska?
Robert A. Brown: They claim the same thing in Nebraska.
Hugo L. Black: But it finally gets back to which State the lands in, doesn't it?
Robert A. Brown: Yes, it does. Certainly, though because that -- that's the basic and that's the reason I'm pointing out all -- all of these evidence.
William J. Brennan, Jr.: Well, what were you about to say anything about the original action, Mr. --
Robert A. Brown: Well, the -- the original action in Nebraska?
William J. Brennan, Jr.: No, no, in this Court.
Hugo L. Black: Yes.
Robert A. Brown: I think to determine the actual boundary between the two States, Nebraska and Missouri, an action would have to be filed by one of the States in this Court. As I understand it, this Court has original jurisdiction of boundary disputes. Now, I was about to say that it is common knowledge and it is pointed out in Mr. Ross's reply brief that there is a whole host of trouble brewing between Nebraska and Missouri and the Governors of the two States are attempting to get together a commission to settle boundary line disputes but that is causing the barn door after the horse has been stolen so far as we are concerned.
William J. Brennan, Jr.: See, what bothers me is and on your premise, this whole thing depends on which State the land lies in.
Robert A. Brown: No question about it.
William J. Brennan, Jr.: I can't understand how this litigation has any status at all, the litigation that to -- to our argument.
Robert A. Brown: Well, you gentlemen accept the certiorari. I can't understand it either (Voice Overlap) --
William J. Brennan, Jr.: Well, is that's why we made it up, that's why we accepted it.
Robert A. Brown: Well, that -- that may well be and that's the reason I'm here to try and prove to you that you were mistaken and you're accepting it.
Hugo L. Black: You want us to all hold the State case that is in your State. The other people want us to hold this in that State.
Robert A. Brown: I want you to hold, Justice Black. I think it is correct that we are not bound by res judicata our full faith and credit, that we have the same --
Hugo L. Black: What about them, about this statement? Would they be bound on that?
Robert A. Brown: Obviously not and in a case cited here and I have --
Hugo L. Black: In other words, you say that this is not to be given full faith and credit and neither is there, so we'd settle nothing do we?
Robert A. Brown: You -- you settle nothing so far as the boundary line between the two States is concerned. You do settle in the Supreme Court of the United States that this should go back to the original trial judge, Judge Duncan, for further proceedings and accordance with his opinion. He then can make a factual finding as to who owns it and that if Mr. Durfee sees fit, can again be appealed to the Eighth Circuit on the factual finding and ultimately may come before this Court for a final determination.
Byron R. White: But he could then go on back into the -- the Nebraska courts then we re-litigate it again?
Robert A. Brown: No, I don't think he could Mr. -- sir, Mr. White.
Byron R. White: Well, why is this been anymore final than the other?
Robert A. Brown: Well, I think when you get a final decision on the facts, if you -- if they seem to pursue that, in the Supreme Court in United States, I think that would be binding on everybody. I don't believe anybody else would question. You see this, all of this stuff --
Hugo L. Black: (Voice Overlap) can we take it from an appellate -- from a state court or do we have to do it originally that I'm suggesting?
Robert A. Brown: Well, you -- Mr. Ross was asked whether you can obtain it from the Supreme Court in Nebraska. I was not in the litigation at that time and I don't know. I -- it's my judgment that very probably, there -- there could've been an attempt to bring it to this Court at that time. I'm quite certain that the case could have been removed to the federal court in Nebraska to start with and from there, going to the -- that would be the Eighth Circuit and then we'll come up but that was not done.
William J. Brennan, Jr.: Well, after all that --
Speaker: (Inaudible)
Robert A. Brown: Yes, Mr. Harlan.
William J. Brennan, Jr.: The real problem here is subject matter jurisdiction, isn't it?
Robert A. Brown: Subject matter jurisdiction of rules (Inaudible).
William J. Brennan, Jr.: Well, was that -- was that -- if that's it, I -- I take it if we would appeal that the subject matter is within the original jurisdiction of this Court and not within the jurisdiction of either the state court or the lower federal courts, which you say (Inaudible) wouldn't you?
Robert A. Brown: I think you would.
Speaker: But supposing, Mr. Brown --
Robert A. Brown: Yes, Mr. Harlan.
Speaker: -- (Inaudible) this case and then the original action is brought in this Court and is determined in the original action in Nebraska on the land, would that have pictured your title?
Robert A. Brown: No, I -- I'm sorry. I -- I'm (Voice Overlap) --
Speaker: Assuming you prevail in this present appeal, in this present review and know that it would prevail in the -- in -- in this action, the Missouri action that you own the land, your clients owned the land and then an original action is brought and is determined in the original action, original action between the States which determine in that action that Nebraska actually owns this land.
Robert A. Brown: I don't think I will change the effect of this, Justice Harlan.
Speaker: It wouldn't affect it?
Robert A. Brown: I don't think it would affect it. Justice, I -- I think, if -- if you reverse the Eighth Circuit and affirm the Nebraska opinion and later there is litigation --
Speaker: Yes. That's --
Robert A. Brown: -- between Missouri and Nebraska, you determine its Missouri land, again, I say it's closing the door after --
Speaker: Closes, yes.
Robert A. Brown: -- (Voice Overlap) it's too late to help up.
Speaker: You and Mr. Ross agree, is it not?
Robert A. Brown: That is -- I agree.
Speaker: Yes.
Arthur J. Goldberg: I don't know what was the aspect of (Voice Overlap) --
Robert A. Brown: Yes, Mr. Goldberg.
Arthur J. Goldberg: -- maybe I just don't get it. Do you mind if I ask this question?
Robert A. Brown: No, sir.
Arthur J. Goldberg: On what theory did you give greater res judicata effect, in your judgment, assuming you get one after trial of the fact, and you would give to the state court judgment, which was a judgment after trial of the fact, now, why would do you think you have a judgment and would be entitled to more res judicata in fact?
Robert A. Brown: Because there is a case from the District Court of Nebraska, recently affirmed in the Eighth Circuit in an opinion by Judge Matthes and I have the opinion here. It is Trader versus 171 Industrial 7400 acres of land, more or less. Now, in that case, there had been adjudication in Iowa. The certain land on the Iowa side of Missouri River belongs to Iowa and the parties had litigated it in Iowa. Nevertheless, they went over to Nebraska and it was the -- the trial in Nebraska judgment or the Iowa judgment in Nebraska and Nebraska did what they say we can't do in this case. And Nebraska examined the jurisdictional question and say, "Uh-uh, Iowa was wrong, this is Nebraska land." The Iowa judgment is not entitled to full faith and credit, is not res judicata and they found it was Nebraska land. Then the United States Government condemned the portion of the land and it was tried in the federal court and that's the questions that went up and the federal court says that where there has been litigation like this where its tried once and then we litigate it in another State, it was re-litigated the third time, the second decision and binding. And if --
Hugo L. Black: (Voice Overlap) -- but you are through when you get --
Robert A. Brown: Sir?
Hugo L. Black: -- I want to ask you about Justice Harlan's question --
Robert A. Brown: Yes, sir.
Hugo L. Black: -- I do not see how, if I understand the record correctly, your answer could possibly be correct. To what source does your client trace his title?
Robert A. Brown: My client traces her title to what is known as a "Swamp Land Patent" from Holt Country, Missouri.
Hugo L. Black: In Missouri?
Robert A. Brown: In Missouri.
Hugo L. Black: To what source does your antagonist trace (Voice Overlap) --
Robert A. Brown: To a tax deed, tax foreclosure deed given 11 years later with the State of Nebraska.
Hugo L. Black: If Nebras -- if that land was not in Nebraska --
Robert A. Brown: (Inaudible)
Hugo L. Black: -- is that a good title?
Robert A. Brown: The deed was no good.
Hugo L. Black: If your land was not in Missouri --
Robert A. Brown: The deed was no good.
Hugo L. Black: -- so that it does affect as to -- as to bound the effect, the case as to who -- which State that land is?
Robert A. Brown: Absolutely, that's the -- that's the crux of the whole case.
Byron R. White: (Inaudible)
William O. Douglas: But there -- there was other evidence --
Robert A. Brown: Perhaps my --
Byron R. White: (Inaudible)
Robert A. Brown: I'll take it on, if it was fine.
Byron R. White: (Inaudible)
William O. Douglas: There -- there was other evidence in the taxing, was it not?
Robert A. Brown: Oh, there was voluminous evidence --
William O. Douglas: Yes.
Robert A. Brown: -- particularly in the second trial.
William O. Douglas: But we don't -- we don't have to choose between other court, didn't it, to choose between --
Robert A. Brown: Oh, no.
William O. Douglas: -- Missouri title and Nebraska title?
Robert A. Brown: No. Judge Duncan, when he handed down an opinion and this was brought out by, I believe it was Mr. Stewart or perhaps, Mr. Justice Goldberg, Judge Duncan handed down an 18 page written opinion and for 16 pages, he belabored the evidence. And -- and this is quite significant, four separate times, he used the term, and I quote this to you because it's important. He says, "It is clear that the land was -- to me, the evidence clearly reveals that prior to the cut through and the formation of the shoot, the main channel goes to the south and west of the land in controversy. Again, I am convinced the evidence clearly shows that prior to the formation of the island in controversy, the main channel of the river was to the south and west thereof." Two more quotes. I won't take the time and read where he says clearly, the land -- the river was west of it and it was Missouri land. Now, having belabored the evidence for 16 pages, he then says with much reluctance, "I am concluded to find that not full faith and credit applies but res judicata does apply."
Byron R. White: (Inaudible) titled opinion do you normally go behind the quiet title decree you'd find in a -- other than the check service?
Robert A. Brown: Oh, yes, yes, I sometimes go behind quiet title decrees and I -- I check title (Inaudible).
Byron R. White: Don't you normally -- don't you normally make the quiet title action as for the purpose of settling a title or is it --
Robert A. Brown: I think a quiet title action, if you want to get into the interior of the State is good, unfortunately, we have so much trouble with the shifting of a land in Missouri River bottoms and we are definitely right on the border there that quiet title action is very frequently, in my judgment, are not worth to pay for the original and I think this is a good example of one that's working that.
Byron R. White: And you think it should be that way.
Robert A. Brown: No, I don't think it should be that way.
Byron R. White: (Voice Overlap)
Robert A. Brown: I think --
Byron R. White: -- the title act is not the main thing.
Robert A. Brown: I think what should be done is that Missouri and Nebraska should get up of their honkers, if you pardon the expression --
Byron R. White: Yes, but they didn't.
Robert A. Brown: -- and have a commission as we did with the State of Kansas and settle the --
Byron R. White: But they didn't.
Robert A. Brown: They have not done it so far.
Byron R. White: And you people would have time (Inaudible) of either --
Robert A. Brown: We're not the only ones. There --
Byron R. White: -- do it in court or with guns, one of the evidence.
Robert A. Brown: You see, Nebraska had a law -- all -- all Nebraska had to do was to come along and arbitrarily put some land on the books as Nebraska land and then they have it taxed and nobody pays the taxes for a couple of years and then it's sold for taxes. And they have a lady district attorney in one of the county's (Inaudible). She is taking -- she's doing what Governor Morris has asked her not to do. She's constantly putting land, it had nothing to do with this case as an illustration no, but we're up against. So there is constant litigation over these boundary lands.
Speaker: That there is -- whatever the outcome of this litigation, Mr. Brown, the State of -- neither the State of Nebraska nor the State of Missouri is concluded by.
Robert A. Brown: Whatever happens here, neither State is concluded as to the boundary. That is why --
Speaker: Exactly, so they can have their original action if they wish to?
Robert A. Brown: They can have their original action.
Speaker: They can have the Boundary Commission. They could do anything they want.
Robert A. Brown: That is correct. Now, I would like to point out that the State of Missouri has filed brief on this. The State of Nebraska filed brief, which had very little to say except -- while it -- it more -- has filed the brief of the petitioner, the State of Missouri has come up with a very interesting and novel brief, which I am frank to say I never considered to my standpoint, Judge Duncan didn't consider and while I have the highest respect was the Blackman opinion as you can judge from the way I've mentioned it. Judge Blackman didn't catch him. And the State of Missouri has pointed out that by statute and decision, now, bear in mind to file in the federal court in Missouri is bound by Missouri law. And by statute ends decision of the Supreme Court in the State of Missouri, the title of the real estate in Missouri can only be determined by the Circuit Court of the county in which the land lies. Any other decision is a nullity and void as neither res judicata nor full faith and credit. And the Supreme Court in Missouri has said that repeatedly and the cases are all in there. Now, the Attorney General makes the argument. He says it's true, Nebraska has decided. A Nebraska court had said that a Nebraska resident has a Nebraska title to Nebraska land. But he said that and bother us, a Missouri court has the same right to say that a Missouri resident has a Missouri title to Missouri land. And I think that makes sense.
Byron R. White: So your (Voice Overlap) is really no good.
Robert A. Brown: What?
Byron R. White: Your -- your -- he said the Missouri is trying down some judgment really is not (Voice Overlap).
Robert A. Brown: Not my judgment. See, all I have is a judgment that --
Byron R. White: (Voice Overlap) --
Robert A. Brown: -- that -- in the Eight Circuit that Judge Duncan should -- was not pre -- precluded from considering this by res judicata.
William J. Brennan, Jr.: And this law may mean he'll now abstain and sends it (Voice Overlap) --
Robert A. Brown: It's up to -- it's up to Judge Duncan to make such finding as he feels he should from the facts. Of course, what he thinks is right.
William J. Brennan, Jr.: A real can of worms, isn't it?
Robert A. Brown: It is the (Inaudible) dismiss I've ever gotten into on a legal proposition. Now, I would like to say this on my time --
Arthur J. Goldberg: Before -- before you leave this.
Robert A. Brown: Well, alright, Judge.
Arthur J. Goldberg: I want to come back to where we were, and you were asserting totally (Inaudible) is that case cited in the brief?
Robert A. Brown: That case is cited in the brief. You --
Arthur J. Goldberg: (Voice Overlap) --
Robert A. Brown: -- you'll have no trouble finding it.
Arthur J. Goldberg: (Inaudible)
Robert A. Brown: Let me see if I can give it to you.
Arthur J. Goldberg: (Inaudible)
Robert A. Brown: It's this U.S. versus -- here, bottom of page 18 and the top of page 19.
Arthur J. Goldberg: In your brief?
Robert A. Brown: My -- my brief, brief of the respondent. Now, what I'd like to point out to you, gentlemen, I or as I say, I believe between us, we've -- we've covered all the cases and there isn't a single case involving title real estate that says a sovereign state is precluded by res judicata from determining jurisdiction. There are a number of cases from your Court. It goes back to comment on Story's commentaries where he says, "Absolutely, the State and its own right has a right to pass on its question of jurisdiction and it is not foreclosed." Full faith and credit is merely an evidentiary matter. If the original judgment was void, it's a nullity and carries no weight. A res judicata is in the same category if the -- if there was no jurisdiction.
Speaker: But not -- not be different where the various subject matter of the rendering the -- the first litigation was the question of jurisdiction, itself.
Robert A. Brown: No, sir. And the cases do not indicate that.
Speaker: Yes.
Robert A. Brown: And the interesting thing is that -- no, I won't have time to go through all of these cases. I've tried analyzing the brief and I'll have to trust you, gentlemen, to read zealously as I worked on. But I would say this, that in the -- the crux of the whole thing is, there is a -- there are two policies, as Judge Blackman pointed out, the policy in favor of the curtail of ending a litigation and the policy in -- in favor of letting a State determine its own -- its own sovereign rights. And in the reinstatement of the law in 1943, under judgment, there was -- there were five reasons where this wouldn't standup. At the same time under conflicts, conflicts didn't say that but it said, "We express no opinion whether and how far -- far you're appearing and participating in the proceedings. It's precluded from many questions, the jurisdiction, the court or the subject matter," that's 1943. In 1948, in the restatement of -- of the law of conflicts that caveat has been removed and they have copied exactly what it says in judgments. And in that, they say where a court is jurisdictional with the parties, it says it has jurisdiction of the subject matter. There -- among others, there are five things which weigh heavily why that does not standup or why it does not res judicata. One, is the lack of jurisdiction over the subject matter was clear. Judge Duncan four times and said there was no question. It is clear. The fifth is the policy against the court's acting beyond its jurisdiction is strong. You, gentlemen, in many of your decisions which I have cited, have repeatedly said that that policy is strong. Now, there is an argument here that there must be an end to litigation. I -- this -- well, it has intrigued me and might intrigue some of you. The Supreme Court of Missouri has been just as zealous as this Court in protecting the rights of individuals. I say the rights of individuals are paramount when it comes to the question as to whether they should be curtailed or litigations should be curtailed. And in the earlier 1840s, prior to the civil war, a colored slave with the name of Charlotte sued the Chouteau family in St. Louis, which was then the leading family in St. Louis, to have her declared free and no longer a slave and she contended she'd been to Canada where -- where slavery was not acknowledged and was, therefore, emancipated. Four times, somebody put up the money for her to fight that in the Circuit Court of St. Louis. Four times, she went to the Supreme Court. Three times the Supreme Court -- the first two times she lost it. In both times to protect her rights, the Supreme sent it back. The third time, she won it and Chouteau appealed and the Supreme Court sent it back in the fourth time. And I have cited that Charlotte versus Chouteau. There -- there are four different decisions showing that our courts have zealously put the rights of an individual far and above the desired curtail litigation. Gentlemen, I've taken all my time and (Inaudible), I want to go out in Nebraska presence to be honest with you. So I'll thank you and I hope you'll find that there is some merit in our presentation. I believe you have considered -- you agree that the Eighth Circuit is correct.
Earl Warren: Mr. Ross.
August Ross: First place, I like to point out that patents had been issued by the United States Government in the State of Nebraska to people of Nebraska on this ground so that the title did emanate from the United States of America. A chain of title did commence on this very ground from the United States to residents of Nebraska. Secondly, we're in accord that, of course, this determination has no binding effect on the States itself as to the boundary. With reference to the case that he cited at (Inaudible) versus 171 acres, the Court will find on review this situation, the suit required title was filed in the State of Iowa. I've been attempted to find out but can't determine but I'm advised that they did not litigate in that court any jurisdictional question. Subsequent to the entry of the judgment in Iowa, they then brought the judgment to Nebraska for recording under a special statutory proceeding for the recording of foreign judgments. At that time, that court litigated the jurisdictional question and concluded that jurisdiction was wanting in Iowa because the ground was in Nebraska. That is as far as the opinion will go because in completing their appellate process, they fumbled the ball, they didn't get a review and so the judgments stood firm. In other words, they neglected to get the bill of exceptions --
Speaker: Where is the (Voice Overlap) --
August Ross: -- before the appellate court and of course, as the matter then comes for -- to us for review on the pleadings and on the pleading, we can do nothing else but affirm down below. So actually, there is no contrary decision there and there is no denial of the very position which we take here. Now --
Speaker: In -- in this case, the issue as the jurisdiction also determines the issue as to the merits?
August Ross: That's right, Your honor.
Speaker: They're identical?
August Ross: They are identical but I say --
Speaker: I mean it's factually identical.
August Ross: Factually identical but all of which to point out again that besides the tax title which I made it from the State, there was this other chain of title as well, Your Honor and that the title had initially left the United States Government and then transferred to private individuals.
Speaker: On the --
Earl Warren: Mr. Ross, you may continue.
August Ross: First, if I may address myself to Justice Goldberg in an answer to the question he asked me about what could be the party have done on -- on the affirmance of the judgment from the Nebraska Supreme Court and I responded earlier that perhaps there was not a federal question. Well, frankly, it was not my problem. I can't say that -- that there is or none but it appears to me on reflection also that if we have a situation where a Nebraska court was taking Missouri grounds, you might very well had a federal question of taking property without due process. But as I said that I'm outing up the question. Referring to the actual crux of this thing and particularly to the opinion filed by the Circuit Court of Appeals here and then the court relies as has been earlier pointed out on the restatement for its authority and there are five criteria that are set out under restatement. The first of them being that the lack of jurisdiction over the subject matter was clear. I would like to point out that in coming to that particular criteria, the Eighth Circuit Court itself says that Nebraska's lack of jurisdiction is not particularly clear. In other words, here, they are and they go on with the rest of the item. Determination of jurisdiction dependent on a question of law rather than fact, that's the second criterion and the court says, "No, that's not applicable." They come to the next criterion and say the court was one of limited, not general jurisdiction, they say, "No, that's not applicable." But the question was not actually litigated and the court says, "No, that that is not applicable." So we actually have a situation then they come to the last one that says that the policy against the courts acting beyond it's jurisdiction is strong, that's the only remaining criteria and then they relate that one back to the lack of jurisdiction over the subject matter but they had already determined that the court's lack of jurisdiction over the subject matter is not particularly clear. So I submit that aside from the fact that if this is a proper determination of the law, there is no form in which we can get a final answer. That actually, its reasoning in -- is inconsistent. Inconsistent in that they state that the policy which is involved is at one State should not rule upon the jurisdiction of land in another State and then the same breadth, they said that the lack of -- of Nebraska's jurisdiction was not clear and that was the very issue which Nebraska had to decide in determining whether it had jurisdiction. One or two other items that were mentioned and -- I don't think they go to the merits of it but that there was other ground involved when this action was originally filed. The only answer in saying that, that when original lawsuit was filed, in addition to describing the grounds to which we had actual deeds, there was a thought that there might be other accretion land involved and the description was enlarged on. The lower court held that we did not prevail as to the other, no cross-appeal was taken and no question really involved there. I don't think that it ever should get to the point that all of us lawyers make mistakes and I'm afraid our clients have to suffer with them but it -- it was an unfortunate choice as to her counsel in agreeing to come in to a Nebraska court and litigate it. Nevertheless, that's the honor of the dilemma that she chose and I submit respectfully under the law of res judicata that that decision should be by mean.
Byron R. White: (Inaudible)
August Ross: They -- he -- somewhat the same way, Your Honor, that we had --
Byron R. White: (Inaudible)
August Ross: That is true, Your Honor.
Byron R. White: (Inaudible)
August Ross: We chose to go in on the basis that we already had the commission which we felt was under the Federal Constitution entitled to the joint intermeddling operation of res judicata in full faith and credit, yes, Your Honor.
Hugo L. Black: Is -- does your client have tax title?
August Ross: That was part of the title, Your Honor, but that was not the sole basis upon the claim and ownership to the property involved.
Hugo L. Black: (Inaudible)
August Ross: Yes, Your Honor.
Arthur J. Goldberg: (Inaudible)
August Ross: No, I didn't say that, Your Honor, I was unable to conclude that from the reading of the decisions. What I stated is just actually the basic distinction, I believe it is that even though where -- the second decision having become final, the last decision having become final, that, in fact, is the decision which becomes res judicata. I believe that's the reason in that case ultimately, but --
Arthur J. Goldberg: Why was it (Inaudible)
August Ross: Your Honor, as I state, I'm unable to determine from the reports in the first place, whether they ever appeared in Iowa. Whether -- whether jurisdiction was ever litigated in Iowa, on my reading of it, I can't ascertain whether they did. And as I stated, it didn't come up until they brought the action in Nebraska to record the judgment and at the time, the court made inquiry as to the matter of jurisdiction. But I believe the answer is that is the last judgment, right or wrong, which becomes res judicata. Let's assume that we have permitted this -- the Circuit Court's finding in this case to become final, then I think we have no argument any longer to go back and -- and secure an older judgment and say that this one is res judicata that the same thing was true in the Treinies case, I believe, if I pronounced that correctly. Where there were inconsistent judgments and the Court says in that position, is the last determination as well.
Earl Warren: Very well.


Earl Warren: Number 399 William Turner et al., Petitioners, versus New York.
Osmond K. Fraenkel: Mr. Chief Justice may it please the Court. I was not able to see respondent's brief until late Monday because I had been out of the country for some weeks and I therefore prepared a Xerox, a very short reply brief dealing with one point in respondent's brief which I would like to submit and will replace by a printed brief in the requisite number of copies and so on when I get back to New York tomorrow or Friday.
Earl Warren: Very well.
Osmond K. Fraenkel: I have given my advisory a copy.
Earl Warren: [Inaudible]
Osmond K. Fraenkel: This is on appeal rather by certiorari here from conviction of a group of individuals in the Criminal Court of the City of New York, convictions which where affirmed by the appropriate appellant court and then reviewed by New York's highest Court, the Court of Appeals and there affirmed without opinion, but with an Amendment to the remitted toward indicating the constitutional issues had been raised which are the precise constitutional issues referred to in the petition. The case arose as a result of the meeting held in an area just north of Times Square in New York City known as Duffy Square, which is a triangular area between Broadway and 7th Avenue and this was a meeting protesting the Vietnam War and it began around 4 o'clock on a certain afternoon in summer time. The testimony is somewhat in conflict which I will develop later, but before I get to the testimony I think it is important for the Court to hear exactly what the complaint contained, because my first contention is that these petitioners were convicted for things not specified in the complaint. That conviction therefore cannot stand being a denial of due process under De Jonge against Oregon, Cole against Arkansas, Thomson against Louisiana, and Garner against -- Now the complaint says this. At 4:25 pm on August 8, 1964, vicinity Duffy Square, 47th Street and Broadway the defendants did unlawfully congregate and assembled at the above location obstructing the area to the exclusion of those wishing to use the same and did delay vehicular traffic while carrying placards and using loud and boisterous language; by their actions did cause a crowd to collect. When ordered to move on the defendants did fail to do so, after being informed that their actions were not lawful and the references of course to the New York Disorderly Conduct Statute, Appeal Law Section 722 specifically to Sections 2, 3 and 4 to which I will come later. Now it was the defense's contention at --
Speaker: [Inaudible]
Osmond K. Fraenkel: Yes, oh yes. It was the defendant's contention at the trial, it is that contention all the way up at here that this complaint charged them with holding an unlawful meeting which the police had a right to disperse because the meeting was unlawful in the respects indicated. Whereas at the trial there was testimony produced over objection by the defense specifically on that ground. From various acts committed by most of these petitioners although curiously enough not all, which occurred after the order to disperse, beyond the mere allegation of the complaint that they refused to move on, act such as two of them lying down on the street. One of them hit a policeman's horse, others running around and interfering with the police's attempts to break up the meeting, various acts which was stressed in the appealing of the appellant term affirming the convictions as justifying them. Now our view is that except for the failure to move on, nothing which happened after the order to disperse is relevant to this particular complaint which rests on the proposition that before there was an order to move on, there was an unlawful assemblage. We submit that therefore the convictions cannot stand because in the first place no one can tell from this record whether these petitioners were convicted because there was an unlawful meeting before the order to disperse or because of unlawful conduct afterwards. The trial court wrote no opinion in finding all of the defendants guilty, although some distinction was made in the sentence, three of them were fined $25 and the others were fined with suspended sentences. But the appellant term expressly relied on these subsequent events as justifying the convictions and so does my opponent in his brief here. Now he says that the complaint is susceptible to the interpretation which he gives to it and which the appellant term gave to it, because of the reference in the beginning of the complaint to this time of 4:25 pm, to which I say two things. In the first place these defendants were not operating at that meeting with stop watches in their hands so that they would know at what time of the meeting 4:25 arose, but in the second place and this I consider to be basic and this what is discussed in my brief reply, under New York law, well settled law as decided by our Court of Appeals, the time mentioned in a charge is of no relevant and whatever, except in those rare cases where it might have some relevance as to whether an offense is committed in the day time or at night, but otherwise it's no relevant whatever and the prosecution is in no way bound by it, but can prove the offenses occurring at any time. So that the reference to 4:25 we submit gave no notice or warning to these defendants that they were going to be charged with things that occurred after the order to disperse even if any of them had been conscious of the fact that order was given before 4:25. Now here is what the testimony showed. And I should point out that there were three classes of witness at this trial; police officers, defendants, and a reporter for the New York Times, a man by the name of Joseph Lelyveld who is by line members of this Court may have seen in the Times in recent months. He was there in his capacity as a reporter. He is only therefore disinterested person in our view. Now the testimony was that almost immediately after the meeting began and some words were stated, a police captain and inspector came up to the person holding the meeting and told him the meeting had to disperse. Neither the captain nor the police inspector testified at this trial. What they said was testified to differently by the different groups of people. One and only one police officer said that he heard the captain talk about obstruction of traffic. The reporter from the Times said nothing was said about obstruction of traffic and that was supported by the defendants. There is another significant element to this. This police officer had a tape recording of what was said by the speaker at the meeting. That tape recording for some unexplained reason did not contain anything said by the police captain when approaching the speakers, but it did contain what the speakers said immediately in response, which was that they considered that they had a constitutional right to hold a peaceable meeting and that was the whole thrust of the discussion insofar as it appeared. Now up to that point the evidence of the Times reporter was the meeting was orderly, no excitement, no undue noise, there were perhaps 60 or 70 people present.
Earl Warren: What is the size of this Duffy Square?
Osmond K. Fraenkel: Your Honor, there is a photograph of it in the record I don't know that the exact size with specify, do we have the exact size?
Potter Stewart: You got a pretty good picture of it, on top at page six of the record.
Osmond K. Fraenkel: Well there is a -- Mr. (Inaudible) has given me.
Potter Stewart: Triangular piece of land that is in the the Times Square.
Osmond K. Fraenkel: I would say its looks to be about 30 feet wide at its widest and – you haven't got the dimensions and the length? I would guess about 150 feet. It occupies roughly two blocks, between 45th and 47th Street with a triangular shape in between them. Now the only evidence prior to the order to disperse with respect to possible justification was the evidence of one policeman, but there had been some overflow of people from these paved area raised above the street, on to the street itself and that some cars had to swerve to avoid these people who were there. But he testified that he had not ordered the people to go back on to the, what would be called the sidewalk of the square. Here is the enlarged Duffy Square. This was not in the record but I have no objection of it being considered by the Court. So that our contention is that there is no substantial evidence whatever in this record justifying the original order to disperse.
Potter Stewart: What time of day was this?
Osmond K. Fraenkel: This began around 4 o'clock.
Potter Stewart: On a Saturday afternoon?
Osmond K. Fraenkel: No, was it a Saturday?
Potter Stewart: Saturday afternoon.
Osmond K. Fraenkel: It was a Saturday afternoon.
Potter Stewart: In the summer time?
Osmond K. Fraenkel: In August. Now it is true --
Potter Stewart: How big a crowd there?
Osmond K. Fraenkel: Well that, there's some questions about it. Mr. Lelyveld testified they were about 60 odd people in the meeting. The police officer said they were about 200. There is some testimony in the record about thousands of people walking along on the sidewalks, would be these sidewalks you see the normal sidewalks on which people travel in that area all the time, but there is no evidence that prior to the order to disperse a crowd collected, that any relation to the meeting other than people who were at the meeting themselves. No evidence that these people wandering along the sidewalk where in anyway disturbed or affected by anything which occurred at the meeting. Now there is evidence that after the order to disperse, at least I should point out that the first order to disperse was followed by these remarks of the speaker that they had a right to continue to hold the meeting and then came almost immediately a second order to disperse. Somewhere in respondent's briefs there is mention of a half hour interval, but there is no such testimony in the record, the times are not given specifically clearly enough. But in any case there is no doubt that after the second order to disperse, certain amount of disorder resulted and had some of these individuals been prosecuted specifically what that kind of disorder as the two persons who were charged with having laying down on the sidewalk, or the one who claimed --is charged with having hit a horse, a policeman's horse although his testimony was that he hit that horse because the horse was about to trample on somebody who had fallen near it and he wanted to divert the horse. So I say had they been specifically charged with disorderly conduct of that kind, the issues before this Court would be all together different. I doubt whether the case would be here before this Court but in it's present posture we contend first as I have said, that this complaint did not justify use of any of the evidence as to what could be called disorderly acts of the persons after the order to disperse other than their mere failure to obey that order and that, that failure was not constitutionally, is the subject of a charge, because the police at that stage had no justification for giving the order, but in any case because of the way in which this case was decided both below and in the appellate court, no one can determine on which basis the convictions rested, so that the cases somewhat like that of an improper charge to a jury such as was condemned many, many years ago for instance in the California Red Flag case, the Stromberg case. And therefore what is involved here, is an interference with a lawful meeting held for a lawful purpose of speech, to be sure the speech in connection with an unpopular cause and there is some testimony in the record which in my judgment justifies the inference that it was the unpopularity of the subject of the meeting which induced the original order to disperse. The testimony is that the officer told the people in charge of the meeting that they had no rights to conduct the meeting, not that he told them that they were obstructing traffic. Now --
Speaker: [Inaudible]
Osmond K. Fraenkel: No, I don't know of any such evidence in this case.
Earl Warren: Was this a place where gatherings had customarily been held?
Osmond K. Fraenkel: There was an offer of proof, that other meetings had been held in this area and that was rejected by the trial court. It's not a place like Union Square which has a traditional character or used to have because I think they are fewer now than there used to be, but in any event speak meetings in New York or not unusual (Inaudible) and as I say there was an offer of proof to show that meetings had been held there in connection with bond rallies and some other subjects. Now whether that offer of proof could have been sustained we can't know, but it was rejected. Now we content further in this case that the statute as here applied is unconstitutionally vague. Now here is what the statute says. Subdivision 2; acts in such a manner as to annoy, disturb, interfere with, obstruct or be offensive to others. Subdivision 3; congregates with others on a public street and refuses to move on when ordered by the police. Subdivision 4; by his actions causes a crowd to collect except when lawfully addressing such a crowd. Now as to the first, we submit that as to what constitutes an appearance or being offensive is very vague and in fact the appellant term itself recognized that I thought that it was overcome by the acts which occurred subsequent to the order to disperse. But we submit that there has been no sufficiently definite definition of that provision and that the final case on which reliance was placed in the Court, in the appellant term by my opponent does not support the convictions in these cases -- in this case. As this Court will recall, Finer (ph) was convicted because he made a speech on the streets of, I think it was Syracuse or Rochester, in which he in effect urged Negroes to take the law into their own hands and the police told him to stop because the people around where getting arrested and one of them had indicated some resentment and the police feared that there would be some kind of a disturbance resulting from these inflammatory remarks. This Court, although divided Court, upheld that conviction. Now here of course there was nothing of the kind. They were no inflammatory remarks. No one urged to do anything improper. There was no resentment from anyone listening. There was therefore no basis for the police believing that any unlawful conduct would result from the continuation of this meeting. Now the second --
Potter Stewart: By your own definition you are confining your description to the events preceding the order of the police, is that it?
Osmond K. Fraenkel: That's right.
Potter Stewart: There is plenty of evidence thereafter they run the horses and one of the witnesses slapped a sergeant.
Osmond K. Fraenkel: Well of course the use of the word they, don't forget Your Honor, Mr. Justice there were 17 people charged here jointly. There was no evidence of any joint unlawful conduct, none whatsoever. Had there been any reference to these specific wrong doings in the complaint that it would have been appropriate for the defendants to try to get severance, so different people charged with the different kind of things would receive discreet treatment.
Potter Stewart: I just want to be sure when you talked there was no disorder, you are talking about the –-
Osmond K. Fraenkel: I am talking the time of the order to disperse the meeting.
Potter Stewart: Right.
Osmond K. Fraenkel: But after all until there was an order to disperse there was no reason for dispersing and the order can be justified only by what occurred prior to the order not by what occurred afterwards. This is the reverse of the search and cease situation where the search can be justified by what's found afterwards, but not by what was found before.
Potter Stewart: Doesn't it appear that at least some of these people weren't arrested until they engages, here is a women --
Osmond K. Fraenkel: That's right.
Potter Stewart: -– hit a policeman and now they wouldn't have slapped the policeman.
Osmond K. Fraenkel: Not everybody.
Potter Stewart: -– on a horse with a rolled up placard and they weren't arrested until they did do that?
Osmond K. Fraenkel: Well, no that's not strictly accurate because at least three of these petitioners were never charged with by any witness with having done anything and the appellant term in its opinion so recognizes. They were simply important people in connection with the meeting, but it's true that most of the people arrested were by testimony connected with some act which had it been separately charged as a separate act and no merely as a failure to move on when ordered to break up a peaceful meeting. What if just they found true, would have justified a conviction and as I said before wouldn't have come to this Court. Now we come then to the next subdivision, the congregation with others on a public street, refuse to move on when ordered by the police well that's obviously unconstitutional on its face because not every order by a policeman, because people have congregated two or three people talk together can be justified particularly not when a meeting is being held to discuss some matter of public importance and therefore we can't suppose that the conviction rested on this. And finally we have the vary vague ambiguous provision, by his action causes a crowd to collect to except when lawfully addressing such a crowd, well that's what we contend happened here, he was lawfully addressing such a crowd and there is nothing in this statute which suggests what constitutes lawfully addressing a crowd and what doesn't constitute lawfully addressing a crowd and there are no standards whatsoever in this statute. So that we contend first that the complaint restricted the charge to what occurred prior to the order to disperse. That there is no substantial evidence in this record that anything which occurred prior to the order to disperse justified that order. And that therefore the order was unconstitutional as an interference with freedom of expression along the lines of many cases which this Court has recently decided which I have cited on my brief, which have taken the general view that a broad disorderly conduct statute cannot be made the basis for interference with free expression. That if there are particular circumstances or places where such expression is improper or inappropriate then legislation should be wise dealing with such situations so that people generally maybe advised of what their rights are, but that the broad catch all, this orderly conduct charge is inappropriate to deal with such matters. Finally we contend that there is no substantial evidence justifying these convictions because nobody can determine from this record whether they arrested on the police or the trier of the facts, that the meeting was unlawful and therefore the police had to right to break it up or whether the convictions rested on the police or the trier of the facts that what occurred after the order to disperse justified the conviction. And in that state of doubt we submit there can be no convictions because there can be no proper basis for appellate review and as I said just a moment ago we also claim that as here applied these three provisions of the law under which the convictions -- on which the convictions rested are unconstitutionally vague at least as applied to the particular facts in this case. We ask therefore that the convictions be set aside.
Earl Warren: Mr. Uviller.
H. Richard Uviller: Chief Justice and may it please the Court. I do appreciate the permission which I received from the Court to make use of this visual aid and I have asked that it would be distributed to the bench a rather poor quality photograph of the same thing. I think that it is important to appreciate what the physical location in which these events took place was. Now this is what we call a square in New York. As you can see it is an island between two major arteries in the center of Manhattan, 7th Avenue on the one side and Broadway on the other. Indeed it was referred to throughout the record in this case and is commonly referred to in New York as part of Times Square. Times Square itself being an ill defined area, not a square at all either, but generally considered to be an open space bounded on the one side by east side of 7th Avenue and on the other by the west side of Broadway and extending to the north side of 47th Street on the north and down as far as the north side of what used to be the Times Tower Building which is on approximately 43rd Street. There is a large commercial section within that area and indeed in the part depicted on this chart between 47th and 46th Street there are movie theaters, lining this sidewalk over here together with places for eating, amusement and some gift shops. About the same is true on the other side of Broadway and indeed as is well known Times Square is a heart in Manhattan and an attraction under normal circumstances not only to residents of Manhattan, but to the visitors to New York as well. At the time that events here in question took place we had a so called World Fair in progress in New York and so that the -- as testified in the record the normal influx of visitors which we would expect on a Saturday afternoon in August was somewhat augmented by that attraction.
Potter Stewart: This August of 1965?
H. Richard Uviller: Two and a half years ago, that's 1964.
Potter Stewart: 1964.
H. Richard Uviller: Now coming to this island which is known as Duffy Square itself, the central part of Duffy Square is a statue of Father Duffy located in this small enclosed area enclosed by a fence and elevated by about three or four steps from the rest of this concrete island. The area north of this statue is really not involved in this case. Apparently nothing took place in that area with the possible exception, a rather vague testimony that they may have been some police officers assembled in that area who entered the scene somewhat later. The speakers for this meeting were located on the south steps of the statue approximately in this position here. There are two flag poles as you can see on either side and the sidewalk about 12 feet on either side of the statue extends fully from the north boundary to the south boundary of this concrete island. The sidewalk I should say is not delineated or demarcated from the reminder of the concrete island in any way, but as you can see aside from the fact that the statue is in the center in that fenced area, it flows into the general concrete area between the two curves. There is a subway grading immediately to the south and from the testimony in the record it's quite apparent that the listeners to this meeting, the group which has been estimated in size variously from 60 to 300 people where for most part in the immediate area which is marked by the subway grading standing --.
Potter Stewart: It is not a subway station area?
H. Richard Uviller: No sir it's just merely a grading by which air is allowed down into the tunnel.
Potter Stewart: I know, egress and ingress to the subway –-
H. Richard Uviller: No sir. There are bus stops as marked on the chart on the 7th Avenue side, two, one just in front of the other and these of course are marked by signs and are used the enter the various 7th Avenue buses that proceed south. There is also another statue located at the far south. This is the statue of George M. Cohan and perhaps it should be called Cohan Square, but there was nobody standing in that immediate area either. In between is a small planting area in which there is some greenery. Apparently no one in this meeting with the approximate exception of some newspaper reporters were standing anywhere in this vicinity. Therefore this entire meeting took place in rather limited part of this rather small island between the steps here and the south end of the subway grading here.
Earl Warren: We will recess now.