Wright v. Georgia Brief for Respondents

    IN TH E

SUPREME COURT OF THE UNITED STATES,
OCTOBER TERM, 1962.

No. 68.

NATHANIEL WRIGHT, et al., 
Petitioners, 

vs,
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia,

P. 0. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia.

ANDREW J. RYAN, JR.,
Solicitor General, Eastern Judicial 

Circuit of Georgia,
SYLVAN A. GARFUNKEL,

Assistant Solicitor General,
Eastern Judicial Circuit of Georgia, 

Attorneys for Respondent.
P. 0. Address:

Room 305 Court House,
Chatham County,

Savannah, Georgia,

S t . L o u is  L aw  P r in tin g  Co., I n c .. 415 N. Eighth Street. CEntral 1-4477.



INDEX.

Pago
Questions presented ........................................................  1

Statement .........................................................................  2

Argument I ...................................................................  7
Petitioners argue that the statute under which they 

were convicted was too vague and indefinite to 
provide an ascertainable standard of guilt...........  7

Argument IT .....................................................................  14
Petitioners further argue that the judgment below 

does not rest upon adequate non-federal grounds 
for decision...............................................................  14

Conclusion ........................................................................ 18

Cases Cited.
Chaplinskv v. New Hampshire, 315 IT. S. 568, 86 L. ed.

1031 ...............................................................................  9

Edelman v. California, 344 U. S. 357. . . . 1..................... 17
Fox v. The State of Washington, 236 U. S. 273, 59 L. 

ed. 573 (1914) ..............................................................  9

Garner v. Louisiana, 368 IT. S. 157, 7 L. Ed. (2) 207.. .8, 11 
Glasser v. United States, 315 IT. S. 60, 70..................... 15
Henderson v. Lott, 163 Ga. 326 (136 S. E. 403) .........  15
Herdon v. Georgia, 295 IT. S. 441.....................................  17

Lawrence et al. v. State Tax Commission of Missis­
sippi, 286 IT. S. 276......................................................  17

Michel v. Louisiana, 350 U. S. 91........................   17



11

National Labor Relations Board v. Fanstoel Metal
Corporation, 306 U. S. 240, 83 L. ed. 027................... 11

Parker v. Illinois, 333 U. S. 571.................................... 17
People v. Galpern, 259 N. Y. 279, 181 N. E. 572........... 9,13
Samuels v. State, 103 Ga. Appeals 60, 118 S. E. 2nd

231 (1901) .....................................................................  7
Staub v. City of Baxley, 355 U. S. 313...................15,10,17
Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 589. .10, 17
Union P. R. Co. v. Publie Serviee Commission, 248 

U. S. 07...........................................................................  10



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1962.

No. 68.

NATHANIEL WRIGHT, et al., 
Petitioners,

vs.
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

QUESTIONS PRESENTED.
i

I.
Whether the conviction of petitioners for unlawful as­

sembly denied them due process of law under the Four­
teenth Amendment, when they were convicted on evidence 
which showed that they were grown Negro men who took 
over a playground in a predominantly white neighbor­
hood at a time when the playground was reserved for 
and was to be used by school children and they refused 
to leave when requested by the police.

IT.

Whether the decision below asserts any adequate non- 
federal grounds for limiting consideration of an aspect 
of an important constitutional right where the court 
below determined that such right had been abandoned.



STATEMENT.
Petitioners were convicted of violating Section 26-5301, 

Georgia Code Annotated in that they did assemble in the 
County of Chatham on January 23, 1961 at Daffin Park 
for the purpose of disturbing the public peace and refus­
ing to disburse (sic) on being commanded to do so by 
Sheriff, Constable ai.d Peace Officer, to wit: W. H. Thomp­
son and G. W. Hillis . . .  (R. 8).

The State of Georgia introduced four witnesses, the first 
witness, Officer G. H. Thompson stated:

When we arrived at this Basket Ball Court we 
found around seven colored hoys playing basket hall 
there . . . (R. 39).

They were pretty well dressed at that time; some 
of them had on dress shirts, some of them had on 
coats—not a dress coat, hut a jacket. I didn’t notice 
what particular type shoes they had on, as far as I 
know they didn’t have “ Tennis shoes”  on. I am 
familiar with the type of shoes that people wear 
when they play basket hall, they didn’t have that 
type of shoes on as well as I remember . . . (R. 39).

I think that these defendants ranged in age from 
23 to 32 . . . (R. 39).

There is a school nearby this Basket Ball Court, it 
is located at Washington Avenue and Bee Road, T 
mean, at Washington Avenue and Waters. There is 
another school on 44th Street—there are two schools 
nearby; T believe that they are both “ grammar”  
schools. T patrol that area and the children from 
these schools play there, they come there every day 
T believe, I believe they come there every afternoon 
when they get out of school, and T believe they come 
there during recess. The school, I believe, gets out 
about 2:30 in the afternoon, and this was around 2:00 
o ’clock . . . (R. 40).



— 3

When I came up to those defendants I asked them 
to leave; I spoke to all of them as a group when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an op­
portunity to leave. One of them, I don’t know which 
one it was, came up and asked me who gave me orders 
to come out there and by what authority I came 
out there, and I told him that I didn’t need any 
orders to come out there. The children from the 
schools, would have been out there shortly after that. 
The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there were five or six cars driving around the park 
at the time, white people. They left only after they 
were put under arrest, they were put under arrest ap­
proximately 5 to 10 minutes after I told them to 
leave. It seemed like to me that they were welcom­
ing the arrests, because all of them piled into tin* 
car, Officer Hillis’s car, at the time, and he had to 
stop them . . . (R. 4fi).

On cross-examination Officer Thompson further testi­
fied:

Under ordinary circumstances I would not arrest 
hoys for playing basketball in a public park. I have 
never made previous arrests in Baffin Park because 
people played basketball there . . . (R. 41).

On redirect he stated:
There have been colored children in Daffin Park, 

hut I did not arrest those children, but I arrested 
these people because we were afraid of what was 
going to happen. Colored children have played in 
Baffin Park, and they have fished there . . . (R. 4*2).

The next witness the State put up was Carl Hager, 
Superintendent of the Recreational Department of the 
City of Savannah. He stated:



—  4 —

As Superintendent I am over all of the playgrounds 
in the City of Savannah, Chatham County, Georgia; 
that includes Daffin Park and all the other parks that 
have playgrounds. These playgrounds are mostly in 
neighborhood areas. There are neighborhood areas 
where colored families live, and neighborhood areas 
where white people live, we try to establish them in 
that manner, and, then there are certain areas where 
they are mixed to a certain extent. We have a play­
ground in the Park Extension, and that is a mixed 
area for white and colored—a white ~ection and a 
colored section—it is mostly white, but there are 
several colored sections within several blocks. The 
Daffin Park area, mostly around that area is mostly 
white. It has occurred, from time to time, that colored 
children would play in the Daffin Park area and in 
the Park Extension area, but no action had been 
taken, because it is legal, it is allowed, and nobody 
has said anything about it. The playground areas 
are basically for young children, say 15 to 16 and 
under, along that age group, we give priority to the 
playground to the younger children over the grown­
ups, it made no difference as to whether they were 
white or colored. Anytime that we requested anyone 
to do something and they refused we would ask the 
police to stop in, if we would ask them to leave and 
they did not we would ask the police to step in. We 
have had reports that colored children have played 
in the Park Extension, but they were never arrested 
or told to leave . . . (R. 42-43).

On cross-examination, Mr. Hager stated in answer to 
questions:

I testified that if there was a conflict between the 
younger people and the older people using the park 
facilities the preference would be for the younger



o ---

people to use them, hut we have no objection to older 
people using the facilities if there are no younger 
people present or if they are not scheduled to be used 
by the younger people . . . (R. 44).

It has been the custom to use the parks separately 
for the different races. I couldn’t say whether or not 
a permit would or would not be issued to a person 
of color if that person came to the office the Recre­
ational Department and requested a permit to play 
on the courts, hut I am of the opinion that it would 
have been, we have never refused one, the request 
never has been made . . . (R. 45).

There is no minimum or maximum age limit for the 
use of basket ball courts, however, at the present time 
we have established a minimum-—a maximum age 
limit of 16 years for any playground area.

On redirect Mr. Hager further explained:
On school days these courts and the playground 

area at Daffin Park are available for only certain age 
groups and they are only used at that time of day 
by the schools in that vicinity, it is, more or less, 
left available for them, that is the way we have our 
recreation setup' . . . (R. 46).

I would like to say that normally we would not 
schedule anything for that time of the day because 
of the schools using the total area there. The schools 
use the area during school hours. The Parochial 
School uses it during recess and lunch periods and 
also for sport, as also the Lutheran School, and the 
public schools bring their students out there by bus 
and at various times during school hours all day 
long, we never know when they are coming, and they 
use Cann Park the same way, I might add . . . (R. 47).

If it was compatible to our program we would 
grant a permit for the use of the basketball court in



6 —

Daffin Park to anyone regardless of race, creed or 
color, however, at that time of day it would not be 
compatible to our program . . . (R. 47-48).

Officer Hillis, the next witness for the State, stated as 
follows:

My name is G. W. Hillis. I am a police officer 
of the Savannah Police Department, and I was a 
member of and on duty with the Savannah Police 
Department on or about the 23rd day of January of 
this year; I was on duty then and I had on my police 
uniform. When I arrived there I saw the defend­
ants, they were playing basketball. Officer Thompson 
talked to them first, and then I talked to them. I asked 
them to leave, Officer Thompson had already asked 
them, I heard him ask them. They did not leave, and 
they did not stop playing until I told them they were 
under arrest. We called the wagon (cruiser). Officer 
Thompson told them that they would have to leave, he 
told them that at first, and they did have an oppor­
tunity to leave after he told them that. He asked 
them to leave, and then T asked them to leave after 
I saw they wasn’t going to stop playing, and when 1 
asked them to 'eave one of them made a sarcastic 
remark, saying: “ What did he say, I didn’t hear 
him’ ’, he was trying to be sarcastic. When I told 
them to leave there was one of them who was writing 
with a pencil and looking at our badge numbers. 
They all had an opportunity to leave before I arrested 
them, plenty of time to have left, but I told them to 
leave, they wouldn’t leave and T put them under arrest 
. . . (R. 49-50).

I am familiar with the fact that there are schools 
in that area, and that children would be out there 
in about 15 minutes to play in that area . . . (R. 50).



ARGUMENT I.

Petitioners Argue That the Statute Under Which They
Were Convicted Was Too Vague and Indefinite to 

Provide an Ascertainable Standard of Guilt.

In their argument on this point, Petitioners seek to lead 
the court to believe that this statute is a statute that has 
rarely been used and they base this on the fact that there 
is a paucity of appellate decisions involving its construc­
tion. As pointed out in the opinion of the Georgia Su­
preme Court (R. page 52 at page 56) the crime of un­
lawful assembly is itself of common law origin.

To determine whether breach of the peace statutes are 
seldom used, I refer the court to the Uniform Crime Re­
ports of 1961 printed by the United States Department of 
Justice which on page 30 carries Breach of the Peace a> 
disorderly conduct in their records. On page 93 the chart 
shows that there were 468,071 arrests for disorderly con­
duct (Breach of the Peace) made in the United States din­
ing 1961. Other than the amount of people arrested for 
drunkenness this was by far the most common charge1 
placed against individuals. As to whether such a charge 
was too vague and indefinite to warrant a conviction, 
page 86 of the report shows that there were 62.6% find­
ings of guilty against all people arrested for disorderly 
conduct and 15.4% acquittals or dismissals. What is 
most probably true is that due to the antiquity of the 
crime “ Breach of the Peace” , it has rarely been chal­
lenged in the Appellate Courts.

In their brief petitioners refer to the case of Samuels v. 
State, 103 Ga. Appeals 66, 118 S. E. 2nd 231 (1961), as 
being the only Georgia case in which there has been a 
construction of this statute. In giving the court the facts 
in the Samuels case in order to try and place it within



— 8 —

the bounds of Gamer v. Louisiana, 368 U. S. 157, 7 L. Ed. 
(2) 207, Petitioners left out what was said on page 66 
which came after the fact was shown that they had sat 
down at the lunch counter that had been customarily re­
served for white people only. “ The personnel of the 
store informed the defendants that the lunch counter was 
closed, the lights over the counter were extinguished and 
the defendants were refused service. This action was 
taken because they were Negroes.’ ’ In their opinion the 
court said (page 66), “ Several witnesses testified that in 
their opinion the presence of the defendants at the lunch 
counter would tend to create a disturbance.’ ’ A reading 
of the record in the Georgia Court of Appeals (Transcript 
of Record, page 19) showed that the witnesses referred to 
were the employees of the store, one of whom was a Mr. 
Tyson, who stated, “ We had closed the counter and were 
no longer serving at that lunch counter. Ordinarily we 
would not have closed it up at that time of day. It would 
have remained opened normally until 10:00 that night and 
it was a result of the defendants being at the counter that 
we closed it.’ ’ It was this witness’s opinion that the de­
fendants were creating a disturbance. Mr. Kline, the 
Manager, also stated that he wanted to keep the counter 
closed as long as there was any disturbance and he con­
sidered this a disturbance (Ga. Court of Appeals, Tran­
script of Record, page 20).

It is significant that Samuels was represented by the 
same attorneys who represent the Petitioners in this ac­
tion and that they did not make any suggestion that the 
statute was unconstitutional.

As the respondent understands the argument of the 
petitioners, they are not arguing that the statute was un­
constitutionally applied to them but that the statute itself 
is unconstitutional as being too vague and indefinite.



— 9 —

We, therefore, cite to the court the case of Chaplinsky 
v. New Hampshire, 315 IT. S. 568, 86 L. ed. 1031, which 
involved a statute whose stated purpose was to preserve 
the public peace. The court on page 573 stated “ The 
statute, as construed, does no more than prohibit the face 
to face words plainly likely to cause a breach of the peace 
by the addressee.”  The Petitioner in that case was claim­
ing that the statute was limiting his freedom of speech. 
This court held that such a statute was not so vague *>nd 
indefinite as to contravene the Fourteenth Amendment.

The case of Fox v. The State of Washington, 236 lT. S. 
273, 59 L. ed. 573 (1914), involved a violation of a Breach 
of the Peace statute. The highest court in the state of 
Washington held that the statute was not bad for uncer­
tainty. This court, page 277, said, “ We understand the* 
State Court by implication, at least, to have read the 
statute as confined to encouraging an actual breach of 
law. Therefore, the argument that this act is both an 
unjustifiable restriction of liberty and too vague for a 
criminal law must fail.”

We cite to the court a decision of the Court of Appeals 
of New York, People v. Galpern, 259 X. Y. 279, 181 X. E. 
572, in which that court held: “ The record shows that 
the arrest arose out of a dispute, conducted on each side 
quietly and without disorder, between a citizen, in this 
ease a member of the bar, who asserted a right to stand 
upon the sidewalk of a street in quiet orderly conversation 
with a group of friends, and a police officer, who assorted 
a right to direct, those who use the sidewalk to ‘ move on' 
when in his opinion they were obstructing the sidewalk.”  
The defendant was convicted of a Breach of the Peace for 
failing to move on. The question involved is very much 
similar to the question involved here. On page 573 the 
court held “ Even if we should find that the police officer’s 
interference was unnecessary, and, in the circumstances.



— 10 —

ill-advised, wo could not find that it was unauthorized. 
The defendant, knowing the character and standing of 
his group of friends and that they would not willingly 
annoy or offend others, might conclude that ‘ he inter­
ference was officious; the police officer without such knowl­
edge might conclude that it was a useful precaution to 
avoid possible disturbance. The law authorized the officer 
to use his judgment. Friends may congregate on tin- 
sidewalk in an orderly group for a short conversation, 
without creating disorder or unduly offending or obstruct­
ing others, but they must ‘ move on’ when a police officer 
so directs for the purpose of avoiding possible disorder 
which otherwise might ensue. The Legislature has pro­
vided that failure to obey such direction in itself is dis­
orderly conduct. That provision tends to preserve public- 
order on the streets of a great city.”

Petitioners’ brief argues that the determination of a 
purpose to disturb the public peace is left entirely to tin- 
discretion of the police, the courts and the jury (Brief of 
Petitioner, page 13). The question is now asked Peti­
tioners: To whom would they suggest such a question 
should be left if not to the police, the courts and the jury? 
There are many cases where a jury and the courts must 
determine questions of this character as, for instance, 
“ intent”  and “ malice” .

The Petitioners in their brief, page 14, further state. 
“ If the statute is considered without the benefit of tin- 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and 
orderly acts or merely outwardly disorderly conduct.”  
This statement answers itself in that the petitioners recog­
nize that the Samuels case had previously been decided 
and had construed the act so that they are unable to state 
that they were not aware of its construction.



— 11 —

This court has again recently held in the case of Gamer 
v. Louisiana, 368 U. S. 157, 7 L. id. (2) 207, at 216, “ We 
are aware that the Louisiana courts have the final au­
thority to interpret and where they see fit, to reinterpret 
that state’s legislation.”  That case also involved the in­
terpretation of a breach of the peace statute. This court 
on page 215 said, “ WTe, of course, are bound by a state’s 
interpretation of its own statute and will not substitute 
our judgment for that of the state’s when it becomes 
necessary to analyze the evidence for the purpose of 
determining whether that evidence supports the findings 
of a state court.”

The Petitioners have widened their argument from that 
stated in its original heading to the further point that 
the petitioners say that they were arrested solely because 
they were Negroes. During the trial of the case and on 
appeal below, petitioners consistently argued that they had 
gone there merely to play basket ball; whereas, the State 
of Georgia attacked the bona tides of this statement. At 
last on page 15 of Petitioners’ Brief they admit that it 
may be regarded as “ a profound, nonverbal expression 
of the impropriety of racial segregation in public parks” . 
They then argue that this demonstration was within the 
range of freedom of speech as assured bv the Fourteenth 
Amendment.

Surely taking over the playground does more than ex­
press their views and is similar to the sit-down strikes. 
The reasoning employed by the court in National Labor 
Relations Board v. Fansteel Metal Corporation, 306 U. S. 
240, 83 L. ed. 627, expresses the feeling that is applicable 
to this case. At page 253 this Court said, “ The em­
ployees had the right to strike but they had no license to 
commit acts of violence or to seize their employer’s 
plant.”



— 12 —

The State of Georgia is not denying the right of Peti­
tioners to play upon public playgrounds. There is no 
evidence to support a finding that if the children weren’t 
assigned the playground, the Petitioners could not have 
played. What Petitioners want this court to do is to over­
look any and all other evidence in this case except that 
they were Negroes and that they were arrested.

There is no evidence to support such a statement as a 
“ white basket hall court’ ’. That would mean a basket 
ball court reserved exclusively for whites. What the 
testimony does show (R. page 44) is that there are play­
grounds in white areas and playgrounds in colored areas 
(R. page 44). Mr. Hager, Superintendent of the Recrea­
tional Department, testified that they tried to establish 
them in that manner, that there are two playgrounds that 
are in mixed areas. One of them being in Park Exten­
sion and the other in Wells Park (R. page 42). Mr. 
Hager further testified, “ It has occurred, from time to 
time, that colored children would play in the Baffin Park 
area and in the Park Extension area, hut no action had 
been taken because it is legal, it is allowed, and nobody 
has said anything about it’ ’ (emphasis ours) (R. page 43).

I
Officer Hillis stated, “ There have been colored children 

in Daffin Park, hut I did not arrest those children, hut I 
arrested these people because we were afraid of what 
was going to happen. Colored children have played in 
Daffin Park and they have fished there”  (R. page 42).

The Petitioners on cross-examination sought to develop 
that one of the reasons the Petitioners were arrested was 
because they were Negroes. This fact, in the policeman’s 
eyes, added an additional reason for asking the Petition­
ers to leave since they had taken over the childrens’ 
playground in an area surrounded by whites and there



was, therefore, more cause to recognize a possible dis- 
turbanee. The Petitioners themselves now admit that 
maybe they weren’t there to play basket ball but that 
they were there to put on what they called a demonstra­
tion.

The fault in the Petitioner’s reasoning is that they have 
not shown that the park was segregated but the state on 
its own volition went out of its way to show that it was 
not segregated, as witnessed by the testimony of Mr. 
Hager, the Superintendent of Playgrounds. In trying to 
demonstrate their right to play, the Petitioners took away 
the rights of those for whom the playground had been set 
aside at that time.

The Petitioners have not shown that the exclusion of 
adults from the playground during these hours was an 
unreasonable exercise of discretion by the playground 
authorities. Petitioners by their precipitate action which 
they classify as a protest (Brief of Petitioners, page 22) 
could easily have inflamed the public. This court has held 
that park segregation is unlawful and rights of minorities 
are to be protected but with a right goes a corresponding: 
duty that is to obey all reasonable requests of a police 
officer. As was said by Judge Lehman writing for the 
New York Court of Appeals in People v. Galpern, 2.19 
X. Y. 279, 181 N. E. 572, “ Failure, even though consci­
entious, to obey directions of a police officer, not exceed­
ing his authority, may interfere with the public order 
and lead to a breach of the peace.”



- 1 4 -

ARGUMENT n .

Petitioners Further Argue That the Judgment Below 
Does ITot Rest Upon Adequate Non-Federal 

Grounds for Decision.

In their argument, Petitioners apparently expand this 
point to include the same point that is included in and 
argued under Argument I above. This is indicated by 
their first statement under Argument II, in which they 
state: “ Initially it should be emphasized that the court 
below indisputably 1 consider and reject petitioners' 
due process claim v. the Fourteenth Amendment . . . 
by asserting: ‘ However, by applying the well-recognized 
principles and applicable tests above-stated, we find no 
deprivation of the defendants’ constitutional rights under 
the Fourteenth Amendment of the United States Consti­
tution’. ’ ’ A careful reading of the decision below shows 
the statement attributed to the court below was in con­
junction with their discussion relating to whether the 
statute, under which the Petitioners were convicted, was 
so vague the Defendants were not placed on notice as to 
what criminal act they committed. As was stated above, 
this point was covered in Argument I and for that reason 
will not here be gone into again.

The Petitioners here present the question of whether 
the court below followed its set rule in treating as aban­
doned any assignments of error not insisted upon by 
counsel in their briefs or otherwise. Here the discussion 
deals with the two assignments of error treated by the 
court below as abandoned. In the Petitioner’s bill of 
exceptions to the court below these two assignments of 
error were on the judgment sentencing each petitioner 
(fourth ground) and on the denial of their motion for a 
new trial (third ground). In reference to these two



— 13 —

grounds in the court below the Petitioners cited no au­
thority, made no argument or even a statement that such 
grounds were still relied upon. In view of the foregoing, 
the court below applied the applicable rule as laid down 
in Henderson v. Lott, 163 Ga. 326 (136 S. E. 403), and 
other cases cited in their decision and therefore correctly 
treated the questions as abandoned (R. 54).

We recognize that this Court will inquire into the ade­
quacy of a decision on state procedural grounds to deter­
mine whether the procedural application involved was 
inconsistent with prior decided cases. Staub v. City of 
Baxley, 355 U. S. 313. Even in the face of the above clear 
rule the Petitioners have not cited to this Court one 
Georgia case to show that the rule laid down in Henderson 
V. Lott, supra, has been inconsistently applied.

Petitioners have apparently conceded that the above 
Georgia procedural rule has been consistently followed 
and therefore have attempted to show that the court be­
low should he reversed for two reasons as follows:

1. “ The court below did not exercise due regard for 
the general doctrine that every reasonable presumption 
is to be indulged against the waiver of a constitutional 
right.”

2. In certain cases this Court has found refusals to pass 
upon federal issues to be unreasonable for reasons other 
than inconsistent procedural application.

The only case Petitioners cite as supporting the first of 
the above two reasons is Glasser v. United States, 315 U. S. 
60, 70. The Glasser case in no way deals with the deter­
mination of a procedural question by a state court, but 
rather concerns itself in the referenced part with the ap­
pointment of specific counsel to assist Defendant in U. S.



- 1 6 -

District Court over his objection to the appointment. The 
holding of the case on this point is clearly stated on page 
70. “ To preserve the protection of the Bill of Rights for 
hard pressed defendants, we indulge every reasonable pre­
sumption against the waiver of fundamental rights.’ ’

We again reiterate that such is not the case here as the 
Petitioners had representation by counsel in the court 
below, to which representation they had expressed no 
objection.

The Petitioners next base their claim for reversal on 
what they allege to be an unreasonable refusal to pass 
upon federal issues.

We ask, is it unreasonable to be consistent? To ask the 
question is to answer it in that inconsistency would lead 
to uncertainty and to a lack of knowledge on how to pro­
tect one’s rights.

Under the procedural rule involved all that is required 
is an insistence on the position taken, that is, let the court 
know what position is taken by argument on the question 
or by covering the question in the brief or by stating the 
assignment of error is insisted upon by counsel.

Petitioners say the above requirement is unreasonable 
under the decisions of this court in Staub v. Baxley, 357) 
IT. S. 313; Terre Haute I. R. Co. v. Indiana, 104 U. S. 570, 
580; Union P. R. Co. v Public Service Commission, 248 
IT. S. 67.

These cases are clearly distinguishable from the prin­
ciple presented in this case. The Union Pacific Railroad 
Company case dealt with the question of whether a consti­
tutional right had been waived by complying with the un­
constitutional statute. This court in taking jurisdiction



— 17

predicated its action in doing so on duress by the State, 
which we submit is not an issue in the current case for 
Petitioners w ere afforded every opportunity to present and 
argue their case.

Terre Haute Railroad Co. also concerns a point not at 
issue here, i. e., untenable construction of a charter granted 
by the State and thus evading the Federal question.

In the Staub v. City of Baxley case this court found the 
lion-federal grounds to be without any fair or substantial 
support and plainly untenable in that the Georgia court did 
not follow a long line of its own decisions in determining 
the procedural matter. The converse is true in the present 
case (R. 54).

Lawrence et al. v. State Tax Commission of Mississippi,
286 U. S. 276, cited by the Petitioners, simply held that 
the purported noil-federal ground put forward by the state 
court for its refusal to decide the constitutional question 
was unsubstantial and illusory. Which is clearly not the 
same as the case now before this court.

The decision in the court below does not impede the 
assertion of federal rights, nor is it burdensome to require 
insistence upon the grounds of appeal. Furthermore, it is 
clearly shown that the rule of the court below to treat as 
abandoned points not insisted upon has b^en consistently 
applied.

It has been held many times by this court that a State 
Court has the power to decide the proper method of pre­
serving Federal questions and such determination will bind 
this Court. Herdon v. Georgia, 295 U. S. 441; Parker v. 
Illinois, 333 IT. S. 571; Edelman v. California, 344 U. S. 
357; Michel v. Louisiana, 350 lT. S. 91. In all of these cases 
this Court deferred to a state court’s determination of its 
own procedural rules.



— 1 8 -

CONCLUSION.

For the foregoing reasons it is respectfully submitted 
that the judgment below should be affirmed.

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia.

P. O. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia.

Respectfully submitted.

EUGENE COOK,
Attorney General of Georgia.

ANDREW ,J. RYAN, JR.,
Solicitor General, Eastern Judicial Cir­

cuit of Georgia,

SYLVAN A. GARFUNKEL,
Assistant Solicitor General, Eastern 

Judicial Circuit of Georgia,
Attorneys for Respondent.

I*. O. Address:
Room 305 Court House, 

Chatham County, 
Savannah, Georgia.