ALLEGHENY COUNTY v. MASHUDA CO.

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Argument of Philip Baskin

Chief Justice Earl Warren: No 347, County of Allegheny, Petitioner, versus Frank Mashuda Company.

Mr. Baskin may proceed.

Mr. Philip Baskin: Mr. Chief Justice may it please the Court.

This case is before the Court on the certiorari granted for the Court of Appeals for the Third Circuit.

A judgment of the Court of Appeals reversed the action of the District Court, sitting at Pittsburgh, Pennsylvania, which had sustained a motion by the County of Allegheny to dismiss the complaint filed by the respondents who were the plaintiffs below.

Now the Creasy case which was heard just before this case discussed the question of a road leading to the airport, which takes us right to the airport itself.

The plaintiffs complained below, and had alleged that the County of Allegheny had taken their property, purportedly for airport purposes, but in fact there was a taking for a private purpose, and that since it was not a public purpose that taking was invalid.

They, therefore, asked for the following relief.

Plaintiff stated wherefore the plaintiff demands judgment of ouster and damages against the two defendants, in addition, or in the alternative plaintiffs demand an injunction restraining the County of Allegheny, from proceeding further against plaintiffs in the Court of Common Plea in regard to the said man and a re-conveyance to the land to which the County had wrongfully acquired title.

In short the bill of complaint asked for a stay of a pending court proceeding in which the parties were then involved.

The County of Allegheny filed a motion to dismiss.

The motion was based on the following grounds.

First, at section 2283 of 28 U.S.C. prevented the issuance of an injunction against a pending State Court proceeding and that therefore the District Court had no jurisdiction over the action.

The second ground given for the motion to dismiss was that this condemnation proceeding in a State Court was an In rem action and that the State Court having acquired jurisdiction over the raise, it had exclusive jurisdiction and that the District Court could not entertain an action which had to concern itself with a title to the land.

The County, however, went further in its motion to dismiss.

It said assuming that the District Court had jurisdiction in view of the fact that there was pending proceeding in a State Court and the parties before the District Court with the same parties before the State Court proceeding and since there was a question that the state law involved that the plaintiffs should have raised that question of the invalidity of the taking first in the State Court proceeding and that therefore the District Court should refrain from exercise its jurisdiction.

The motion to dismiss also stated that there was no basis for the cause of action, but that is not relevant to this appeal.

Now the facts which brought this case to the District Court are quite simple, because all that we have in here really is aggrieved complaint and a motion to dismiss.

The Board of County Commissioner of Alleghany County, pursuant to their powers under the Second Class Code, had passed a resolution in June of 1955, condemning various properties for use for the greater Pittsburgh Airport.

Included in these properties were 8 acres which were owned by the Mashudas who are the respondents in this case.

The County then petitioned for a Board of Viewers and in March of 1956 a Board of Viewers came in with an award of approximately $52,000 for the property.

The County appealed that award, claiming that the award was excessive.

The property owners appealed claiming that it was an adequate and the case was then set at issue before the Court of Common Pleas.

This case was set at issue in the early Court of 1957, which was almost two years after the original resolution and approximately 18 months after the petition for the appointment of viewers.

Then in May of 1957, the respondents, plaintiffs below, went into the District Court and claimed for the first time that the taking by the county was improper in that we were using it not for a public purpose, not for airport purposes, but for a private purpose.

I think before going into the argument on the case it might be well to review very briefly the procedure for eminent domain in Pennsylvania some of which was covered in the preceding argument.

Chief Justice Earl Warren: Is it in the record what, what purpose it was for, what private purpose it was claimed it was?

Mr. Philip Baskin: Yes it is Mr. Chief Justice.

Chief Justice Earl Warren: What it is –-

Mr. Philip Baskin: What happened was that they added as a defendant, in the District Court proceedings, a contractor who the county had issued a contract to for construction of part of the airport paving and the county had also licensed the contractor to use a certain portion of the Mashuda property temporarily for storage purposes for his materials during his construction contract.

Now, we have attached that license that the County gave this contractor to our motion to dismiss and it is in the record and that temporary license that was given to him was given to him more than a year after the original taking.

However, since the complaint states that it was for a private purpose which we say it on its face is shown not to be and since we moved to dismiss we are proceeding with the case as though there was some grounds for the allegation that there was a taking for a non public purpose.

Chief Justice Earl Warren: Was that the only non public purpose that is alleged, just a temporary use of it by the contractor for the construction of the airport?

Mr. Philip Baskin: Well, as far as we conceive from the complaint that's all that there is.

I think in fairness to plaintiffs they did make an allegation that the county had no plan for using this property other than this plan to temporarily lease it for this contractor.

That was really the reason why we added to our motion to dismiss the fact that because of that, there was no cause of action in the case, that on its face there was, and there was no basis for action.

However, that is not before the court and it wasn't before the Court of Appeal below.

Justice Felix Frankfurter: May I ask before you go into the procedural detail as given, according to it the law as annunciated by the people of Pennsylvania, if the county or the state came before – can before the People of Pennsylvania and said yes Your Honor we want to condemn, we want to condemn land solely to a private purpose in the sense this will advantage some private enterprise because they apparently think it will add to the economy of the county or the state, is the law of your state court is so clear (Inaudible) in such a case?

Mr. Philip Baskin: Yes I think it is your Honor.

Justice Felix Frankfurter: What is it?

Mr. Philip Baskin: I think the law is that we cannot take property for a private purpose.

Justice Felix Frankfurter: That is the doctrine or the principle (Inaudible) the power to condemn and declare by your court is that it must be for public purpose so that I suppose the controversies have been contemplated before your court as well as before this Court whether the purpose as arisen public in the context of a particular case.

Mr. Philip Baskin: That is correct Your Honor.

There is no question that in Pennsylvania the land must be taken for a public purpose.

Now --

Justice Felix Frankfurter: Who determines the validity of the claim that it is for public purpose?

Mr. Philip Baskin: Well we say that under law of Pennsylvania that's determined in the Board of Viewers proceedings, in other words condemnation proceeding as such.

Justice Felix Frankfurter: Are you going to deal with that?

Mr. Philip Baskin: I'm going to deal with it right now.

What happens is, once a resolution is passed condemning property there is an appointment of Viewers made by the Court of Common Plea.

The Viewers then consider what is taken, what is not been taken and then hands down an award.

From that award there is an appeal to the Court of Common Pleas which appointed the Board in the first instance and before the Court of Common Pleas you can raise any questions, it's almost a de novo proceeding.

From there you can appeal to the appellate courts of Pennsylvania as in any other case.

Now, the peculiar thought about this case that makes its so different from any other case that we can find either in Federal Law or State Law, is that this is the first time that a Federal Court has taken action concerning title to property which is then involved in a condemnation proceeding which has been going in the State Court.

All the cases that we have been to find which are cited in our brief have held flatly that when the condemnation proceeding is pending in the state court, that the District Court will not interfere with that state proceeding.

Justice Felix Frankfurter: Would you mind giving me (Inaudible) just by way of date, the date when the state proceedings were initiated, where they were when the federal proceedings began?

Mr. Philip Baskin: Yes sir.

The original condemnation resolution was in June of 1955.

The viewers were appointed shortly thereafter and in March of 1956 the viewers handed down their award.

Then there was an appeal --

Justice Felix Frankfurter: Was the public versus private purpose of the taking an issue before the viewers?

Mr. Philip Baskin: It was not raised.

What happened --

Justice Felix Frankfurter: (Inaudible)

Mr. Philip Baskin: No what happened Your Honor was this, that in a petition which was subsequently filed from the award of the viewers, the plaintiff themselves avert that the condemnation resolution was duly adopted in conformity with the Second Class County Code.

Justice Felix Frankfurter: Before the common pleas' review.

Mr. Philip Baskin: Before the common pleas review, in other words after the award of the viewers which was in March of 1956, within 30 days there were appeals filed by the county and the property owners.

At no time have the property owners raised this question of the invalidity of taking either in the Viewers' proceedings or in the pending Court of Common Pleas proceeding.

The case was then set down for issue and would have been tried except for this proceeding in the District Court which was instituted in May of 1957.

Justice Felix Frankfurter: When in the ordinary course of business, would you say the appeal was taken -- or the award it was in 1956 and within 30 days after --

Mr. Philip Baskin: The award was in March of 1956, so within 30 days there was an appeal filed.

Now this case was then pre-tried.

It is not shown in the record but it was pre-tried and set for trial and we have an order of Court which I like to file with the Court since it's coming up by the Court of Common Pleas.

As a matter of fact it was signed by Judge Alpern who is now the Attorney General Alpern, who argued preceding case, and the order of Court states that the reason for not proceeding to trial with the issue was the fact that the attorney for the property owners came in and asked that it be postponed pending the determination of the Federal Court proceeding.

Justice Felix Frankfurter: How about the –-

Mr. Philip Baskin: And that was in --

Justice Felix Frankfurter: (Inaudible) In March 1956 the appeal was filed in the common plea within 30 days, it brings us to April.

Mr. Philip Baskin: That's correct.

Justice Felix Frankfurter: Then there was pre-trial, was there a pre-trial step taken?

Mr. Philip Baskin: Yes, Your Honor.

Justice Felix Frankfurter: And were they motioned?

Mr. Philip Baskin: There was a pre-trial postponed until November 1956.

Then there was a trial, a trail set for March 11, 1957, which was postponed until May 14, 1957.

And it was in May of 1957 then that this Federal Court action was instituted and on the basis of that Federal Court action the plaintiffs asked the State Court to stay its proceeding pending a determination of the Federal --

Justice Felix Frankfurter: The postponement of the hearing in common pleas was not out of deference or by agreement that the federal proceeding to be initiated and go on.

Mr. Philip Baskin: Oh no, we never agreed with that Your Honor.

Now if --

Chief Justice Earl Warren: Instead of filing the suit in the Federal Court, the defendants in the common law -- Common Pleas court had moved to remove it to the Federal Court on grounds of the first, could have they have done that?

Mr. Philip Baskin: Well I think Mr. Chief Justice they might --

Chief Justice Earl Warren: This is simply a diversity case.

Mr. Philip Baskin: Yes, they might have been able to do it had they done it properly, that is within the 30 days after the appeal was filed with the Court of Common Pleas, but this case was filed in a District Court almost a year after the appeal was taken to the Court of Common Pleas and I think there is no question that the removal of jurisdiction would be lacking.

Justice William O. Douglas: As I understand it this issue could not have been litigated in the common pleas action.

Mr. Philip Baskin: Well, Mr. Justice Douglas that's the crux of this case.

We say that it could be tried there, in fact we say that it can't be tried anywhere else and we say that the Board of Viewers proceedings concerns itself not merely with an award of damages, but with any question of law relating to the taking for example.

Justice Felix Frankfurter: (Inaudible) nobody raised it?

Mr. Philip Baskin: That's correct Your Honor.

What we we're saying is this, that when a Board of Viewers makes an award of damages, that it must be predicated upon a lawful taking, otherwise the award itself is a void act, but what happens in these viewers proceeding is ordinarily there is an allegation made as there was in these proceedings that the taking was in conformity with law.

Nobody objects to that allegation, therefore all that happens is that viewers go along and award damages.

Occasionally --

Justice Felix Frankfurter: That's the only thing that is contested before the viewers?

Mr. Philip Baskin: Just the damages in this case, in this case, but what we are saying is --

Justice Felix Frankfurter: I understand, but in this case.

Mr. Philip Baskin: That's correct, but what we are saying they could have raised --

Justice William J. Brennan: They could have raised it before the Board of Viewers?

Mr. Philip Baskin: Well, we say that they could have and we say that the Pennsylvania Law says that it is must be raised in that proceeding.

Justice William J. Brennan: But would the Board of Viewers determine this particular question, whether this was taking for a public use?

Mr. Philip Baskin: We believe they would have, yes.

We say that in order to award damages, they must be grounded upon the fact that there is a taking.

It must be a lawful taking otherwise I don't see how the award could be lawful.

Now in most cases nobody contests the taking, but --

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip Baskin: Well it's -- we say that it's a determination which is inherent in the award when nobody raises the question.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip Baskin: It's a quasi judicial body Your Honor in Pennsylvania, it's an arm of the Court of Common Pleas, it's appointed by the Court of Common Pleas.

It has power to make findings and give an award which is binding, unless it's appealed from to the Court of Common Pleas, so in that sense it's a quasi judicial body.

Justice William J. Brennan: (Inaudible) Court of Common Pleas?

Mr. Philip Baskin: When it comes to the Court of Common Pleas --

Justice William J. Brennan: Suppose this question had not been raised before the viewers, but on the appeal, put it on the appeal then be raised in the trial de nevo in Court of Common Pleas.

Mr. Philip Baskin: We believe so, yes sir.

Justice William J. Brennan: So you get two cracks at it.

Mr. Philip Baskin: Well, we believe that it's jurisdictional because if there hasn't been a proper taking then there is no power to making an award and we say --

Justice William J. Brennan: But it is clear that even if you don't raise it before the Board of Viewers you may still have an opportunity to raise it in the Court of Common Pleas?

Mr. Philip Baskin: Yes sir.

Justice William O. Douglas: (Inaudible)

Mr. Philip Baskin: Well, no we do not admit that Your Honor.

We say that in Pennsylvania once condemnation proceedings have commenced, that you can't bring it in an independent suit and that's where the Circuit Court of Appeals we believe was erroneous in its judgment.

The Circuit of Court of Appeals said that since you could bring an independent action in the State Court, the test of validity of the taking, that there being diversity of citizenship you could bring an action in the Federal Court.

We say that under Pennsylvania law you must bring it in the present state proceeding.

Now we went further than that.

We --

Justice William O. Douglas: How about the Spann case?

Mr. Philip Baskin: Well, the Spann case, Your Honor was a District Court -- a case of a school district in which that question was not raised.

Nobody raised the question of jurisdiction in that case.

It was brought before the equity court and the court decided, but I think if you read that case you will see that nobody questioned the jurisdiction of the court, none of the parties did and the Court went ahead and decided the case --

Justice William O. Douglas: But they entertained the suit.

Mr. Philip Baskin: They entertained the suit, but that was also before the Gardener case which we refer to in our brief.

Now what we are --

Justice Felix Frankfurter: (Inaudible) must interrupt you there for asking whether you can -- whether Pennsylvania can foreclose bringing the question, raising the question in a diversity suit in the Federal Court, although the state law may limit it to local Pennsylvania court, is the question that I should think has been Wholly clear in the light of the Madisonville case, but the point here is, that in fact it wasn't raised either before the viewers whether they had been granted quasi judicial or not and it was certainly not raised before the Common Pleas which is an indubitable judicial tribunal, is that right?

Mr. Philip Baskin: That's correct.

Now what --

Justice Felix Frankfurter: And that being endeavor to raise it by independent action, not through removal of the Federal Court, of the cause on diversity ground, but to raise it by independent action after the state proceedings in the state courts had been in process it is perfectly clear on the fact of this case.

Mr. Philip Baskin: That's correct.

Now I would like to direct this to Mr. Justice Douglas to point out what could conceivably happen here.

The Circuit Court in effect said in its opinion that there was no jurisdiction in the pending State Court to try this question of the validity of the taking, that's really what they grounded their opinion on.

Now they are at best guessing at what the state Supreme Court would say would be the jurisdiction of this court.

Now let's assume that the present state proceeding goes on to a conclusion and that we take the position in the pending State Court proceeding that this question could have been raised and the state Supreme Court says yes it could have been raised because there was jurisdiction in the State Court to entertain it, not having been raised it's res judicata.

Now we have then a situation wherein the State Court we have res judicata because the issue wasn't raised, at the same time we have a federal suit progressing which is entertaining the very question which the state Supreme Court says was foreclosed in the State Court action.

Now I am not --

Justice Felix Frankfurter: (Inaudible) not here because the state proceeding didn't go to adjudication?

Mr. Philip Baskin: Well but it may and the very --

Justice Felix Frankfurter: (Inaudible) res judicata until you have adjudication.

Mr. Philip Baskin: Well a very interesting question would arise it seems to me Mr. Justice Frankfurter is when it goes to adjudication and not having been raised, will it then be res judicata and what will be its effect against any decision that the District Court might make concerning the invalidity of the taking.

I think we have that question of --

Justice Felix Frankfurter: No, does this is in your, is your attack against the action of the Court of Appeals in reversing the District Court resting on claims, this is res judicata because if the state proceedings are allowed to be completed, it would be adjudicated that's the ground of your argument?

Mr. Philip Baskin: No, no, that is not the ground.

Justice Felix Frankfurter: Alright.

Mr. Philip Baskin: We are only suggesting that is one of the questions which will be raised subsequently if we permit this District Court proceeding to go on.

Now we say that the lower court had no jurisdiction because of Section 2283 of 28 U.S.C. which states that you cannot enjoin a pending State Court proceeding.

Now the relief that was requested before the District Court asked for that in those very words.

It says wherefore plaintiffs demand judgment of ouster, and in addition or in the alternative an injunction restraining the County of Allegheny from proceeding further.

Now the I think in this very language, the relief places itself within Section 2283, the Circuit Court of Appeals took the position that the plaintiffs were abandoning all thoughts of equitable relief and were asking only for ouster which would be what they consider an action of ejectment.

However, we say that even if we would presuppose that the plaintiffs had abandoned that relief which would not abandon in the District Court that there is no difference between ordering the County of Allegheny to leave the property or ordering them not to take any further steps in connection with that property and the cases are quite clear that if the result of a District Court action has the same result as an injunction against pending State Court proceedings that the Section 2283 comes into play.

Now we have cited in our brief many cases in which other circuits have entertained this exact situation that is where condemnation proceedings were pending and a claim was made in the District Court that the taking was invalid because it wasn't for a public purpose.

And in each one of those cases the Circuit Court has held that Section 2283 prevents the exercise of jurisdiction, but we are prepared to go even further.

We are prepared to say that even if Section 2283 were not here involved and it was just a question of whether the District Court should exercise its jurisdiction or not that there are very cogent reasons why it shouldn't because if the State Court, if the plaintiff is going to the State Court and say here is our question will you handle it and the State Court says yes, we will, there isn't a single federal question that's left open, there is no question of whether Section 2283 applies in this case, there is no question of whether this is an In rem proceeding, in other words all the many questions that have been raised in this proceeding disappear.

But if the District Court says that we will try the case, then all these questions remain and also this question that I presented before of what will happen eventually if the State Court proceeding goes to award of damages and the Federal Court proceeding goes on to a judgment of ouster and you have an award of damages in favor of the plaintiffs in one court and another court those same plaintiff saying that the land was not taken and they are entitled to the land which prevails and which has the effect of res judicata.

Now all we are suggesting in connectin with that is that the purpose of comity principle is to avoid these jurisdictional conflicts between state and Federal Courts.

Here is an opportunity for the plaintiffs who are already in the pending State Court proceeding to say to the State Court here is our claim and will you pass upon it and if the State Court says yes we will, there is nothing to this case.

Justice Felix Frankfurter: Let me ask you this in this case is there any such question as that (Inaudible) controversy in the last case, namely the so called irreparable damages?

Mr. Philip Baskin: No, Your Honor there is no question of irreparable damages here because we have admitted that they are entitled to damages if there is a taking and no matter how long the trial may proceed --

Justice Felix Frankfurter: But they claim that that the state procedure is such that undue delay will embarrass them in such a way that no damages can compensate to it?

Mr. Philip Baskin: You mean in the preceding case?

Justice Felix Frankfurter: No, no, in this case?

Mr. Philip Baskin: Oh no, no sir I don't --

Justice Felix Frankfurter: That's out of the question --

Mr. Philip Baskin: I don't think --

Justice Felix Frankfurter: This is merely a question whether the Federal Court should entertain a diversity proceeding brought a year after the matter was in submission or in claim of decision by the state, the Common Pleas Court in the state condemnation proceeding, is that right?

Mr. Philip Baskin: That's correct, Your Honor and I might point out that they cannot be hurt by delay in this case, because if they are entitled the damages for a taking then they are entitled to what we call the pension money which was in effect interest on the award.

Justice Felix Frankfurter: Now let me ask you -- I meant to ask the Attorney General, I rather was thinking of asking the Attorney General, in the other case the Attorney General Alpern said that, when asked about these Pennsylvania judges, he said they get us (Inaudible) knowledge of Pennsylvania law.

Here we have got again out of three, two, Pennsylvania judges if it's not truly relevant my curiosity is going to be peak why these Pennsylvania judges would want to sit as Pennsylvania condemnation court.

Mr. Philip Baskin: Well I should that what Attorney Alpern said about them I could very charitable he say about them --

Justice Felix Frankfurter: Well I know.

But that merely brings me to the next question, why should they jettison?

Mr. Philip Baskin: Well I think Your Honor --

Justice Felix Frankfurter: Is there some, is there something below the surface that makes the condemnation process of Pennsylvania ruthless, or severe, or difficult, or obscure or --

Mr. Philip Baskin: No, but there are very, there are some very obscure questions concerning procedure.

Now I might say --

Justice Felix Frankfurter: They think they can do it better than the State Courts?

Mr. Philip Baskin: Well I'll use your language.

Justice Felix Frankfurter: If they're more interested in it.

Mr. Philip Baskin: Your language at best it's a forecast rather than a determination of what the state Supreme Court would say.

However, I want to point out in fairness to the Circuit Court below in our case that the Gardner case which we refer to in our brief and which came down subsequent to their decision is the first case which really seem to deal very squarely with a question of the powers of the Board of Viewers on questions of law.

In other words, the Gardner case said a Board Viewers doesn't just assess damages, that's what the Circuit Court below said a Board of Viewers could do.

The Gardner case said that the Board of Viewers determined all relevant questions of law --

Justice William J. Brennan: Are we hearing that Circuit Court said in the Gardner case?

Mr. Philip Baskin: Well that's what the Circuit Court said, but what I am suggesting here is let's assume that we don't know who is right, the Circuit --

Justice William J. Brennan: (Inaudible)

Mr. Philip Baskin: Well --

Justice William J. Brennan: (Inaudible)

Mr. Philip Baskin: All Circuit Court judges are very good Your Honor.

Yeah what I --

Justice Felix Frankfurter: Are they fungible?

Mr. Philip Baskin: What we are suggesting here, what this Court has repeatedly said that no matter how learned they are in the law that when it's a question of state law that only the Supreme Court of that state can adjudicate at best as a forecast rather than a determination.

And what we said to the court below and what we are saying here is, let's assume that we are not correct about the Gardner case, let's assume that it doesn't say all that we say it does, there is no law that says what the Circuit Court says either, so why not let the State Court which now has jurisdiction over the parties and over the subject matter have a chance to entertain the question while the parties are still there.

And we think that that will avoid all of these many questions that are in our brief about the nature of the proceeding of whether 2283 applies or not.

We think it could take that view of the case, there is no necessity for determining the jurisdictional questions involved in this case.

Justice Charles E. Whittaker: (Inaudible)

Mr. Philip Baskin: We believe that there is, Your Honor.

He is there now, the trial has not begun and we believe that simply by an amendment to his petition -- in other words when he filed his original petition, he claimed that it was in effect a valid taking, he didn't question the taking, he just asked for an award.

And now we say he can simply amend that petition by saying that after discovered facts have made him believe that the original taking was invalid and that therefore there should not be an award, there should be no award at all, but an adjudication that there has been no taking and that could be handled right in the present State Court proceeding.

Justice Hugo L. Black: I suppose we can take it from your statement.

The Attorney General would not permit the question like it to be raised after having, after having -- you having made the statement here, objection to the amendment that you should give.

Mr. Philip Baskin: Well the Attorney General has nothing to do with this proceeding Your Honor.

This is a proceeding in a Court of Common Pleas by the County of Allegheny --

Justice Felix Frankfurter: And you control that litigation?

Justice Charles E. Whittaker: Do you control that litigation?

Mr. Philip Baskin: Now we control that litigation and there is no question in our minds that we would have no objection for that proceeding.

Justice Hugo L. Black: No question in your mind but in fact if you would not raise any such objection.

Mr. Philip Baskin: No we certainly would not.

Chief Justice Earl Warren: Mr. Schmidt.

Argument of Harold R. Schmidt

Mr. Harold R. Schmidt: Mr. Chief Justice, may it please the Court.

I would like to assure Your Honors that we rely very heavily upon the judicial expertise of the judges in the Court of Appeals but I think as the last two arguments have demonstrated to Your Honors the degree of sanctity which counsel gives to the expertise of any particular court depends upon which side of the argument you are on.

I believe however in this particular case, demonstrably the Court of Appeals for the Third Circuit was correct.

There is here no difficult or undecided question of Pennsylvania law.

I don't mean to in anyway derogate from the judicial experience of judges Goodrich, Staley, and McLaughlin who decided the case below and I don't think I am doing so when I say that these matters are so well decided, these are really matters of what you would consider the lowest echelon of procedural problems in the Commonwealth of Pennsylvania that is fundamental of work which we referred to in our brief as standard Pennsylvania practice makes it very clear that a Pennsylvania citizen in this set of circumstances which we have before us and I would like to allude briefly in a moment to the facts would have a right to bring an action, an ejectment which we in effect have brought in the Federal Court despite the ablation of the forms of action under the Federal Rules of Civil Procedure.

Justice William J. Brennan: (Inaudible) proceeding in the Federal District at the time (Inaudible)

Mr. Harold R. Schmidt: An action of ejectment?

Justice William J. Brennan: Yes.

Mr. Harold R. Schmidt: Yes Mr. Justice Brennan, very clearly we have a right under the unquestioned Pennsylvania law to do that, now we feel that in as much as we are representing Wisconsin residents, Wisconsin citizens who own land in Pennsylvania which was as we contend tortiously taken from them, they have a right to bring it under the diversity jurisdiction in the Federal Courts.

And I would like to advert very briefly and I am not going to read from this book but merely make reference to it that since our brief was printed and filed in this Court on March the 13th, there arrived in our office another volume of what I believe will be a standard work on Pennsylvania practice procedure and legal question called Pennsylvania Law Encyclopedia Volume 13 Eminent Domain Sections 131, 2 and 3, which again very clearly in a court with standard Pennsylvania practice and the decision of the Court of Appeals for the Third Circuit make it clear that a Pennsylvania resident in these circumstances would have the right to bring ejectment to get his property back.

Justice Felix Frankfurter: Is that any controversy?

Mr. Harold R. Schmidt: I believe it is the position of --

Justice Felix Frankfurter: Is there any controversy that whatever right you may have in an ejectment proceeding, you could have asserted in the Common Pleas on appeal on de novo review of the Board of Viewers?

Mr. Harold R. Schmidt: Well I would not want to put words in the mouth of counsel for the county, but I would certainly disagree with any contention that we can engraft an ejectment proceeding against Martin Wise, one of the defendants in this case, into a condemnation proceeding between the County of Allegheny and the Mashudas as to how much money the Mashudas will get for the land which was taken from them.

Justice Felix Frankfurter: But if in the Common Pleas proceeding if state condemnation efforts are frustrated then you have already won, haven't you?

Mr. Harold R. Schmidt: No sir.

Justice Felix Frankfurter: Why not?

Mr. Harold R. Schmidt: We want a remedy, we want a writ, that a sheriff or a marshall can execute by return --

Justice Felix Frankfurter: But if the Common Pleas says that this is a taking for private not public purposes, nobody can touch your land?

Mr. Harold R. Schmidt: They have taken it already Your Honor and they are on it.

Justice Felix Frankfurter: What?

Mr. Harold R. Schmidt: They are there, we want them out.

Justice Felix Frankfurter: Now what would -- what would be the remedy in the Common Pleas court if the question of what private versus public purpose is raisable in that court?

Mr. Harold R. Schmidt: Well I don't mean by inadvertence to agree with your basic proposition Mr. Justice Frankfurter, but caveating that proposition, if we can get in before they take it, we have a remedy of bill in, bill in equity to stop it, the Spann case and many other cases relied upon by the Court of Appeals make that perfectly plain.

Justice Felix Frankfurter: Must the viewers – must the viewers approve the taking under Pennsylvania law?

Mr. Harold R. Schmidt: Under Pennsylvania law the Viewers' proceedings are much different than I believe Viewers' proceedings in any other jurisdiction of which I have knowledge.

Justice Felix Frankfurter: Well is the question of -- is the objection that the taking is for private purposes raisable in the federal -- in the State Court other than for an ejectment proceeding.

Mr. Harold R. Schmidt: It's raised bill in equity, action and ejectment or trespass --

Justice Felix Frankfurter: And if not raisable in the condemnation proceeding itself, resisting it on the ground that it's not for a public purpose?

Mr. Harold R. Schmidt: I submit that it is not, but I do not believe --

Justice Felix Frankfurter: They know nothing about it.

Mr. Harold R. Schmidt: But I do not believe that it is necessary for our success in this case to establish that proposition because --

Justice Felix Frankfurter: It is very important for me to determine whether the condemnation sought by the state maybe denied on the ground that it is for private purpose?

Mr. Harold R. Schmidt: Oh!

Yes there is no if I understand your question correctly Mr. Justice Frankfurter there is no dispute by anybody, the property may not be taken for a private purpose by the Commonwealth of --

Justice Felix Frankfurter: And therefore the condemnation can be arrested by the Common Pleas on (Inaudible), is that right?

Mr. Harold R. Schmidt: I disagree with that, but I –-

Justice Felix Frankfurter: I don't understand –-

Mr. Harold R. Schmidt: But I believe -- well may I explain my answer just a little bit.

In order to prevail in this case as the Court of Appeals indicated the county has to do more than show that it could be raised in the Viewers' proceedings, I believe the county has to establish the proposition to the satisfaction of this Court which had failed to do in the Court of Appeals and I believe it failed properly, that not only can it be but that it must be.

So that the appeal of the Viewers' proceedings and the appeal therefrom are the exclusive remedy because if they are not, if it is not an exclusive remedy then a Pennsylvania citizen has the opportunity to bring ejectment despite the pendency of Viewers' proceedings and if a Pennsylvania citizen has the right to bring an independent proceeding and ejectment, trespass or bill in equity which is quite clear under the Pennsylvania decisions then under the diversity jurisdiction and cases such as Farmer's Loan & Trust against Regan a non-Pennsylvania citizen --

Justice Felix Frankfurter: I don't think that follows necessarily at all, because you can go to the Pennsylvania court, presumably you get justice there and it doesn't follow because you may go into the Federal Court, but the Federal Court must allow you to go there.

Mr. Harold R. Schmidt: In a diversity case?

Justice Felix Frankfurter: In a diversity case.

Mr. Harold R. Schmidt: Well I, if --

Justice Felix Frankfurter: Well we have several decisions of this Court over my dissent in some cases --

Mr. Harold R. Schmidt: But, Your Honor dissented in the Stoody case which reached exactly the opposite conclusion and I believe joined Mr. Justice Black in the conclusion there that because all of all of the other requisites for diversity jurisdiction were present and it was and there were no reasons whatsoever to delay the disposition of the matter in the Federal Court that the diversity jurisdiction should have applied.

As a matter of fact I believe Your Honor said that basically it was not proper to indulge in this type of, I would believe, Your Honor corpus --

Justice Felix Frankfurter: Well my mind has come to rest on important questions?

Mr. Harold R. Schmidt: Well if I may be of assistance I would like to argue that point just a little further?

Justice Felix Frankfurter: I want the defendant in a case where the case is sent back --

Mr. Harold R. Schmidt: I did not hear Your Honor.

Justice Felix Frankfurter: I dissented in a case in which Justice Black wrote fro the court in a diversity case on the ground of the Federal Court is just as well equipped as a State Court.

Mr. Harold R. Schmidt: I think -- well, my own feeling would be about that area of the law, that in all of the cases where Your Honors have indicated that the matter is to be sent to the State Court, that there has been something other than a straight lawsuit based on the diversity jurisdiction.

Justice Potter Stewart: Now isn't this something other than that too Mr. Schmidt, I'm directing your attention to page seven of the record which is the prayer of your complaint and you ask for ouster and damages then you say in addition or in the alternative, that means that you want it either way, either in addition, but at least you want this, plaintiff's demand an injunction restraining the County of Alleghany from proceeding further against the plaintiffs in the Court of Common Pleas, regard as (Inaudible).

Now that makes this quite different from an ordinary action of law, does it not?

Mr. Harold R. Schmidt: It engrafts on it as an alternative request, something more than would be asked for in an ordinary action of law, but may I call Your Honor's attention to this, that Section 2283 of the judicial code which we contend is not applicable here, because this is an action at law within its own framework, provides for the issuance of an injunction to protect the jurisdiction of the District Court, and we believe that by the filing of an action of the ejectment, the District Court will have obtained and I believe properly has obtained jurisdiction over this particular piece of land, and I wound not want to suggest that, that court under certain circumstances which might come up, if the facts of this case are ever permitted to be proved in the District Court, might want to issue an injunction in order to protect its jurisdiction within the framework of Section 2283.

We are not now asking for any equitable relief.

What we want, is to get our land back and may I on the premise that sometimes a page of history is worth a volume of logic, re-advert very briefly to something I should have said probably at the very beginning of this discussion, which is a little fuller explanation of the chronology of this case, because I don't believe that county's counsel intended to gloss over any facts, but there are facts that are of the record here, that I believe are controlling which were not mentioned and I think the chronology is important.

On June the 16th 1955 the County Commissioners passed a resolution which was found on its face, perfectly regular and in accordance with the county law, the Second Class County Code, purporting to condemn these eight acres for airport purposes, under Pennsylvania law, that was the condemnation if the Court please.

We've cited cases to prove that.

That was it.

After that all we had was a right to damages.

Now the county then, under Pennsylvania law that right can be barred by a statute of limitations and frequently is, so that the condemnation is valid even though the right to compensation is gone.

But the county acting promptly in September of 1955 or approximately three months after the taking, petitioned the Court of Common Pleas for a Board of View asking for determination of how much damages will have to paid for this property.

Justice Potter Stewart: Now may I have just one moment with you?

Mr. Harold R. Schmidt: Yes sir.

Justice Potter Stewart: Is there a provision for answering pleading to that petition?

Mr. Harold R. Schmidt: No, not to my knowledge, and its not filed, if -- what happens in a case of that kind is that you appear, as a matter of fact the Board of Viewers by statute in Pennsylvania is not even required to take testimony, they can go out on the land and make their own determination of the value, it's only more or less as a matter of custom and courtesy that the --

Justice William J. Brennan: (Inaudible)

Mr. Harold R. Schmidt: Well generally speaking, yes, although as Attorney General Albern pointed out, our Common Pleas Court has two or three Boards of Views, they sit in groups of threes and cases are customarily assigned to --

Justice William J. Brennan: But are they experts in property evaluation or something like that?

Mr. Harold R. Schmidt: Yeah they purport to be.

Well I don't mean to say anything even inadvertently in criticism of them, many of them being friends of mine, but certainly over the years by getting into this type of question they develop an expertness --

Justice William J. Brennan: Well what kind of people are appointed to it, what's the background, are they real estate people, insurance men, lawyers or what?

Mr. Harold R. Schmidt: Sometimes lawyers, sometimes from a background that I would have to disclaim personal knowledge of Your Honor without really knowing in the case in which this was heard, the Chairman of the Board was a -- was and is a lawyer, a member the Alleghany County Bar.

Now that was the situation in September of 1955, and thereafter we had a hearing, and it was determined that we were entitled to 52,000 odd dollars and the Mashudas were and both parties were dissatisfied with the amount of compensation.

I might say that as the statute points out, the statute contemplates only a determination of the amount of damages.

It presupposes a taking and speaks of the amount of compensation if the parties can't agree and both sides appeal to the Court of Common Pleas raising only the question of damages, no question about --

Justice Felix Frankfurter: Would you have raised any other question except damages for the Common Pleas?

Could you have raised any other question?

Mr. Harold R. Schmidt: In my view, not Your Honor.

Justice Felix Frankfurter: You couldn't?

Mr. Harold R. Schmidt: But in my view even if we could have, we were not required to --

Justice Felix Frankfurter: I understand that, but I just wanted to know whether you -- whether the issue before the Court of Common Pleas and view of the Viewers is clearly, whether it's 52,000 or 83,000.

Mr. Harold R. Schmidt: That in my opinion Your Honor is the only question before the Common Pleas, the only case that we were able to find in the federal courts that passed on that question at least rising out of Pennsylvania, because our law and procedure is different.

In most states, federal condemnation is different.

There is an award made of the land, the determination of the proprietary taken.

Similarly in many of the cases cited by the county, the same law of taxes Missouri and other states, the saw way, not so in Pennsylvania.

In the eastern district of Pennsylvania in the Colgate case which we have referred to in our brief at page -- well several different places; 19, 20, 24 and 33 make it plain that under Pennsylvania law and procedure the trial before the Board of the View and thereafter is really simply a famed issue to determine the question of damages.

Now I believe that the Court of Appeals for the Third Circuit agreed with that, although I would say again that I believe that even if this Court should disagree with me and with the Third Circuit which I earnestly hope that it will not; that, that does not bar us from proceeding in the District Court.

Now let us assume, however, that -- just for the sake of the argument and without making any concession based thereon that we did something wrong by not raising the question up to that time, the appeal was taken.

Then according to our allegations and I believe that the allegations contained in the complaint which you admitted for the purpose of this argument are that, and I'm reading from paragraph eight of the complaint on page 4 of the record, that county prior to the taking had not formulated any definite plan for the use of the land and that it's only plan was to lease it to Martin Wise, a Pennsylvania Corporation for its own private purposes.

Then we allege that thereafter, on or about May 22, 1956; and as I indicated before I believe that the sequence of events is important, because May 22, 1956 is after the appeal was taken, some new acts took place.

Not only was the taking invalid and void in the first instance, but even if it had been valid or have some type of color of validity, then on May 22, 1956, the property is turned over to the other defendant on this record Martin W. Wise Incorporated, a business cooperation.

Justice Hugo L. Black: For what purpose, (Inaudible)

Mr. Harold R. Schmidt: We say that the -- and I believe Mr. Justice Black, that in this record the allegations of the complaint must be taken as true because there was never a trial, that it was leased to the defended Martin W. Wise Incorporated for the benefit of said lessee and for no public use.

Now we say that by the terms of the lease to Martin Wise Incorporated, a county surrendered control and possession of the land to its lessee, and has allowed and does allow and will continue to allow an improper and unlawful private use to be made of the land and then in paragraph 11 we say, the plaintiffs specifically are informed and believe that the defendant Martin W. Wise Inc., as lessee had used and is using, all or part of the purportedly condemned land as a base for its operations as a general contractor, few if any of which operations have anything whatsoever to do for the establishment or maintenance of air navigation or terminal facilities.

Now those are the allegations.

Now admitted for the purposes of this --

Justice Hugo L. Black: Well was that the only purpose and nothing else in the record showed differently?

Mr. Harold R. Schmidt: Correct, Your Honor, correct sir, there is nothing in the record that in anyway negates this because at least before this court the county filed a motion to dismiss.

Now if I may remind the Court of the fact that has not been dwelled upon extensively here, this suit was filed, this action in ejectment of law, if the Court please, against a county and its lessee Martin W. Wise, Incorporated which was possession at the time and as far as this record is concerned is still in possession.

Justice Hugo L. Black: Was he constructing an airport there for use?

I thought that the briefs --

Mr. Harold R. Schmidt: Well, the county, the resolution of the board of county commissioners, if the Court please, stated that it was going to be used for that purpose but as far as I don't want to go outside the record on the basis of my own personal knowledge, but according to the record, according to the record not that I am afraid to answer the question, I'll be glad to answer if I am not trespassing on the proprieties, but the matter first came to our attention when Martin W. Wise appeared in possession and according to the compliant and I think the fair inference to be drawn from the complaint which is admitted here is that it was not known prior to and could not be known prior to May 22nd, 1956 that its going to be used for anything other than the construction of an airport.

Now we allege that it was being by Martin W. Wise generally and let me dwell this --

Justice Hugo L. Black: I am reading from the brief of the other side, I am wondering if we time take that as they cite pages on the record that they were to be used for an airport Wise was going to build it and it was necessary to have this place to store his tools and so forth in order to build the airport.

Mr. Harold R. Schmidt: Well Mr. Justice Black you are exactly 100% right, that's what they say and that's point is up for a reason if I may say so, why we are entitled to try this case in the District Court.

That's taken from the answer of Martin Wise and if that's right then maybe we are wrong on the facts, but the question is where are we going to try this case.

When you get right down to the fundamental reason of why we are here is we want to get back Pittsburg in the western district of Pennsylvania and prove the facts that we allege now that I submit to your honors are taken as admitted.

And taken as admitted they make this purported condemnation as invalid and as tortuous and as completely void as if the county commissioners had sent the sheriff on a passing out with guns and drove the owners off and turned it over to the lessee Martin Wise.

Justice Felix Frankfurter: I believe that there is nothing to try from your point of view if all that's admitted there is nothing to try.

Mr. Harold R. Schmidt: Well it's admitted for the purpose of this argument on the -- since the case was thrown out on the motion to dismiss Your Honor but we want the right to prove those, those facts.

Justice Felix Frankfurter: But there maybe a contest on the facts?

Mr. Harold R. Schmidt: Oh!

Yes and only on the facts.

If the Court please there is no --

Justice Felix Frankfurter: Starting point is, the sovereign position by Pennsylvania that the county has alligated that he wants to condemn this and every (Inaudible) position is the basis of condemnation is a lawful constitutional basis, isn't it?

State doesn't have to, if the United States or the state of county of Allegheny or City of New York wants to condemn nobody is going to, they don't affirmatively prove they need it for a public purpose unless a claim is made of the negative order and that's the claim you are making, isn't that right?

Mr. Harold R. Schmidt: That is the claim we are making Your Honor.

I disagree with Your Honors of the law as it applies in many jurisdictions.

In my research and preparation for this case, I came to the conclusion that in many of the states and particularly those involved in some of the cases cited in the county's brief here, that the reverse is quite true that the -- that the commission in many cases, a railroad commission or something of that kind must in the first instance make a determination even though it is not questioned a determination that taking is for a proper public purpose, not so in Pennsylvania.

What the law is in New York I am not qualified to say, because I haven't looked at it.

But in this particular case we submit, we submit if Your Honor please that in a suggestion by Mr. Justice Whitaker in the earlier argument that legally speaking this taking which for the purpose of this argument only and not for the purpose of the trail on the merit, on the facts submitted for this argument was as tortuous as if the sheriff had gone out with a gun.

And the fact that they've enforced these people off and the fact that they choose to camouflage it as an eminent domain taking, does not vary, the legal result from the standpoint of diversity of citizenship, and the right to proceed in diversity case at law in the federal courts.

Now there is a practical reason why we want to be in the federal court and I don't think we should overlook it and it doesn't sound very, perhaps very philosophical from those standpoint of jurisprudence, but I think it is exactly the kind of practical consideration that the framers of the Constitution had in mind and that the Congress had in mind in enacting the first diversity of citizenship jurisdiction statutes when they did those things and that is this.

I think myself that all Judges try to do a good job.

Most Jurors I believe at least think they are trying to do a good job.

It's an issue that's not before us, but we are against the county of Allegheny, we are from Wisconsin.

We try this case in ejectment of an appeal from the board of view, its going to be before a Jury composed of whom, citizens drawn exclusively from Allegheny county and its going to be tried before a Judge elected by the citizen of Allegheny county.

Now I think when Alexander Hamilton in the Federalist Papers number 80 said that in a diversity case a person from outside the state has a right to go into a tribunal which does not owe any allegiance to local institutions in order to avoid any possibility of bias.

I think he was thinking about just the type of a case that we have here and I don't suggest that any common pleas Judge in Allegheny County is going to be biased, but I think we are all sufficiently realistic to know that local people do have let us say perhaps a special sensitivity to local, to local desires and I think that this is a classic case for the exercise of the diversity jurisdiction.

We are going to have to prove facts, that Pennsylvania law is settled.

Justice Felix Frankfurter: Where is the Jury going from the federal court, what Jury I mean you are going to get?

Mr. Harold R. Schmidt: Jurymen are drawn in western districts, from all over the western district.

However that raises a question that I have in mind if we ever get --

Justice Felix Frankfurter: They are Pennsylvania folk aren't they, not Wisconsin folks.

Mr. Harold R. Schmidt: That's correct but that's the best we can do with the diversity citizenship with the diversity rule as it is.

Justice Felix Frankfurter: I suggest, I suggest that since you invoked Hamilton he merely explained, he gave a reason for that, he wasn't asked for this, neither was Madison neither were any of the plaintiffs, very hot with the federal -- for the diversity ground.

Mr. Harold R. Schmidt: Well as a practical matter, Your Honor I was looking at it from the standpoint of a trial lawyer who is used to operating down on that level I must say that it weighs rather heavily in my determination in any particular case as to which jurisdiction I invoke in this case was one of the reason why I chose on behalf of Mashudas to attempt to get the case into the Federal Court.

Justice Felix Frankfurter: No need to say that trial lawyers like, they don't think that, I know they do.

Mr. Harold R. Schmidt: Well I am willing to admit that on the record and I think it's --

Justice William J. Brennan: (Inaudible)

Mr. Harold R. Schmidt: Well I was going to say was this the, I think I am perhaps jumping the gun just a bit but the next question I had in my mind if we ever do due get back and get a chance to prove these facts was whether or not I'd be able to challenge any Allegheny County resident for cause that's another question.

But the, the next what I'd like to say is this if I may in the time, least time remaining in hand, of course since this is a matter of fact a Jury's verdict will have all the sanctity of a Jury verdict and its not going to be reviewed by any Appellate Court not along this one.

Now we have answered in our brief that particular arguments of the county as to why this case should not be in the diversity one according to us obviously it is.

We don't think 2283 applies, it's not a equity case, a relief or the request for an injunction was merely in the alternative.

We don't think this is an In rem action we have explained why.

There is no question of comity or interference because there is no difficult question of state law or interpretation of a state statute upon which will depend a constitutional issue here, there is a no constitutional issue here.

The only question here is --

Justice Felix Frankfurter: There certainly isn't if you are right.

Mr. Harold R. Schmidt: Only in the diversity sense Your Honor.

Justice Felix Frankfurter: There is no, if you are right, and there is certainly an unconstitutional exercise of eminent domain.

Mr. Harold R. Schmidt: Well the state admits, the state admits that if our facts are true the exercise is invalid and I might say this.

I don't know where Martin Wise stands on this record, they don't appear to be here although the record was reversed as to them below and I'd say again what I want is an opportunity to prove for the Mashudas in the District Court the facts that we have alleged which was taken as true for the purpose of this argument, now we would like the opportunity to prove it in that court because we think it's a classical case on the facts and on the practicalities for determination in a Federal Court under the diversity jurisdiction.

Justice Charles E. Whittaker: Mind I ask you this, how could you (Inaudible)

Mr. Harold R. Schmidt: Well I urge Your Honors to do what the Court had done in other cases that we've referred to in our brief, and that is to rely on the judicial experience and expertness of the three judges, two of whom were Pennsylvania lawyers, have decided that.

I think their decision was correct.

I think that the only thing that clogs the issue is that fact that the county disappointed at the result, now attempts to say that it's a difficult question or that the state, that the Court of Appeals judges jettisoned the state law, I don't think Court of Appeal judges do that, I think they recognized --

Justice William O. Douglas: And was Dickinson who sat in the Colgate Case of Pennsylvania lawyers --

Mr. Harold R. Schmidt: It was an Eastern District of Pennsylvania Case Your Honor and I would assume it would be, because the Eastern District of Pennsylvania is completely within Pennsylvania and I don't know of any federal judge, district judge that is appointed from a state other than that, in which the district is located.

Justice William O. Douglas: He came from the -- it was a three judge court, I thought he might have been brought in.

Mr. Harold R. Schmidt: In the Colgate Case?

Justice William O. Douglas: Yeah he was the Pennsylvania Judge, wasn't he?

Mr. Harold R. Schmidt: Oh I would -- allow me to retract what I said, I thought it was a decision by a single judge, if it's a three judge court, it's conceivable he could have been brought in from other district, although I don't think that's very customary.

So please excuse my inadvertence, I thought there was only one judge, I don't know whether he is from Pennsylvania or not.

Justice Hugo L. Black: I want to ask you one question about Page 10 page of the record.

Assuming there was a petition for appeal from the warden who was a juror, in which the company setup, that this was to be used by an appellee.

How did that get in here, page 10, Exhibit B, Motion to Dismiss, citing -- where you took an appeal from the Board of -- from the Viewers to the Court.

Mr. Harold R. Schmidt: That went in because the county simply appended it as an exhibit to their motion to dismiss and have -- it was filed in the District Court and ever since that time it's been printed as a part of --

Justice Hugo L. Black: Is there anything wrong with it?

Mr. Harold R. Schmidt: Oh no it's perfectly accurate Your Honor, although --

Justice Hugo L. Black: And your people say that this was -- the result could be used or acquired for the purpose of establishing, maintaining their own air navigation and terminal facilities.

Mr. Harold R. Schmidt: Well the only thing that's wrong with it is Your Honor that it wasn't until approximately a month later that we found out that it was leased to Martin Wise which the record also shows uncontradictedly occurred on or about May 22, 1956, approximately one month after the (Inaudible) was taken, the affidavit was sponsored by Mr. Mashuda to this appeal.

Justice Hugo L. Black: Did that show that he had a contract with the County of Allegheny?

Your records show that he at that time had a contract with the County of Allegheny, in connection with the airport or construction of the airport?

Mr. Harold R. Schmidt: We would object strenuously to any incorporation of that fact in the record, we did not allege it.

For the purpose of the record it is -- for the purpose of this argument it is not here, that is purely a defensive statement which would have to be brought out on the --

Justice Hugo L. Black: But it's in the motion to dismiss, isn't it?

Mr. Harold R. Schmidt: No Your Honor --

Justice Hugo L. Black: Attached to their motion to dismiss in the Federal Court?

Mr. Harold R. Schmidt: No sir, I beg to differ with you, that is in the -- is an appendix or an exhibit to the answer on the merits filed by the defendant Martin W. Wise Incorporated, who did not file a motion to dismiss.

That is appended to the answer on the merits of that defendant.

Justice Hugo L. Black: It states at the beginning, exhibit B, the motion to dismiss to Court of Common Pleas of Allegheny County, Pennsylvania.

I just don't quite understand it, the connection --

Mr. Harold R. Schmidt: Well exhibit B, to the motion to dismiss is the petition for appeal from the award of the Board of Viewers.

That's a paper that I filed on behalf of the Mashudas, that's quite correct.

Justice Hugo L. Black: Which setup that it was a -- to be used for public airport.

Mr. Harold R. Schmidt: That's right, that's what we thought, that what the resolution said, and it appeared to be fair on its face.

What Your Honor is referring to --

Justice Hugo L. Black: Then there is an answer to it, which was also attached.

Mr. Harold R. Schmidt: That is correct Your Honor, that is --

Justice Hugo L. Black: Contract between Wise and the County of Allegheny.

Mr. Harold R. Schmidt: That's attached, if Your Honor will look Mr. Justice Black to page 14 of that record, Your Honor will see that page 14 is not a portion of the motion to dismiss, but is the answer of Martin W. Wise Incorporated, the other defendant, who is not a party to the eminent domain proceedings at all.

That answer on the merits was filed and what you're referring to if the Court please as exhibit A, on page 19 is an attachment to that answer.

It is not I submit a part of the motion to dismiss.

Justice Potter Stewart: The Court of Appeals indicates that you pretty well abandoned there your claim for an injunction.

Mr. Harold R. Schmidt: Yes and I would be willing to abandon it in the record here too if it simplifies the matter, because I feel as the Court did that it was mere (Inaudible)

Justice Potter Stewart: It's one of (Inaudible)

Mr. Harold R. Schmidt: We put it in as an excess of caution as trial people do, so as to try to cover everything, but this is really an action of ejectment against one part at least which is not even a party to the record in the eminent domain proceedings.

Justice John M. Harlan: (Inaudible) injunction factual consequences are the same.

Mr. Harold R. Schmidt: Your Honor says it makes very little difference?

Justice John M. Harlan: As far as interfering with the state proceeding is concerned.

Mr. Harold R. Schmidt: I respectfully disagree.

I think that an injunction against the procedure in the state is what Section 2283 had in mind.

Justice John M. Harlan: I appreciate that.

Mr. Harold R. Schmidt: An ejectment action only interferes on the basis that any res judicata situation will interfere with the decision of a similar issue by another court, but the issue is not even similar.

So we contend, if I may say so respectfully, that there is quite a difference.

The action and ejectment raises an entirely different question, and is completely different than bill in equity for an injunction, which might be -- probably would be within the purview of Section 22 --

Justice Felix Frankfurter: (Inaudible) what do you think is the policy that takes away jurisdiction from the Federal Court and enjoins a state proceeding that's underway, what do you think the policy is in light of your feeling that Allegheny judges and juries can't do justice to Wisconsin claimants?

Mr. Harold R. Schmidt: I --

Justice Felix Frankfurter: Well if you didn't say couldn't do justice, that they'd be would be partial to Allegheny.

Mr. Harold R. Schmidt: Well I -- perhaps Your Honor is reading more into what I said than what I actually meant.

Justice Felix Frankfurter: Well I thought you felt strongly as lawyers do feel strongly, that an outsider can't get a fair deal, or rather that local judges and jurors are prejudiced against an outsider, is that true?

Mr. Harold R. Schmidt: Well I wouldn't put it that far, because the probabilities --

Justice Felix Frankfurter: I don't understand what else you meant to convey as a matter of fact.

You even suggested that you drive us to disqualify Allegheny citizens from the jury.

Mr. Harold R. Schmidt: Yes I will have to say --

Justice Felix Frankfurter: That's bias isn't it I know on the grounds that you disqualify them.

Mr. Harold R. Schmidt: Interest.

Justice Felix Frankfurter: Interest.

You think (Inaudible) Pittsburgh cares a lot who gets this (Inaudible)

Mr. Harold R. Schmidt: Well Your Honor apparently there is a great deal interest in it or we wouldn't be here, but in answer to Your Honor's question, what is the policy, I don't know, but I disagree that it affects the jurisdiction of the Court to do anymore than issue that particular type of relief.

Justice Felix Frankfurter: I just want to know what you think the policy is behind such a restriction upon the jurisdiction of the Federal Court.

Mr. Harold R. Schmidt: I think this --

Justice Felix Frankfurter: What do you think the policy is?

Mr. Harold R. Schmidt: -- this would be the policy if I may say so briefly.

In a case which is other than a diversity law case, and where there is some very good reason for subscribing, for circumscribing the diversity jurisdiction or otherwise, federal jurisdiction, federal question jurisdiction, then the policy of non-interference with the state might outweigh the basic constitutional considerations giving to the federal court the right to try cases under the diversity jurisdiction.

I say here that consistent with that policy we have the classic case for diversity jurisdiction, at law the absence of any of the countervailing considerations such as avoidance of constitutional questions, direct interference with state operations, because this eminent domain proceeding can go on.

It can go on, they've got the land, we're not holding them up.

It's not like the airport case, they are there, we are not, we are not holding anybody up and that there is no reason why we can't go ahead and try this case anymore than you do in dozens of cases, where a plaintiff files against the defendant in one court, defendant files against the plaintiff in the other court, and the both proceed merrily on their way, until one of them is decided, if one of them isn't removed and consolidated with the other case.

Justice Felix Frankfurter: But 2283 isn't restricted to questions of constitutional problems at all. 2283 applies to a great diversity of cases, and has applied for 150 years.

Mr. Harold R. Schmidt: In a limited area where the Congress has felt that the policy was such that the constitutional diversity idea should be circumscribed or that the -- or the other provision that gives the government the right -- or a citizen a right to go in and have a federal question litigated in the Federal Court.

Justice Felix Frankfurter: That depends a lot on how you feel about diversity jurisdiction.

Mr. Harold R. Schmidt: It's a practical political question, I think is what it is and Congress has seen fit to cut that little bit out of the federal jurisdiction.

Justice Felix Frankfurter: (Inaudible)

Chief Justice Earl Warren: Mr. Schmidt may I ask you this, I understood you to say that you doubted if you could raise the question of private use, before the Court of Common Pleas in this condemnation proceeding.

Mr. Harold R. Schmidt: That is correct Mr. Chief Justice.

Chief Justice Earl Warren: That is correct, all right, now suppose this case had gone to final judgment, the condemnation suit in the state court, and thereafter you had learned about this use that you are speaking of, would there then under Pennsylvania law been available to you an action of ejectment?

Mr. Harold R. Schmidt: Yes sir, yes Your Honor there would be --

Chief Justice Earl Warren: You're not in agreement on that are you, the counsel on the other side and yourself?

Mr. Harold R. Schmidt: Well I don't think he has spoken to that point, but I believe that the Pennsylvania court is quite clear on it.

If we had waited, gone through the eminent domain proceeding and had it all buttoned up, gotten our money, and a year later all this happened, we certainly could have gone in with an action of ejectment tendered the money back, and I can't see why we should have to do all of that or wait when we cut it in the middle of the whole thing, that's the impractical aspect of the county's argument.

We cut it before it went too far, why should we be in any worse position that if we hadn't found it out until two years after the whole thing was over.

Chief Justice Earl Warren: Well, I just like to ask counsel if he agrees with that statement.

Now I understood you to say the opposite, I may have been mistaken.

Rebuttal of Philip Baskin

Mr. Philip Baskin: I did say that Your Honor.

Chief Justice Earl Warren: I beg your pardon.

Mr. Philip Baskin: I did say the opposite, in other words our contention is, if you go through the proceeding, and do not eject to propriety of the taking in the first instance –-

Chief Justice Earl Warren: Yes.

Justice William J. Brennan: (Inaudible)

Mr. Philip Baskin: Well, let me address myself to two different situations which might show the difference in the answers, one is they have alleged here that at the time the county took the property it had no plan for a public purpose, in other words they said at the time of the taking.

Now they could have determined at the time of the taking what the purpose is.

Now going through an entire condemnation proceeding without objecting to the taking, then getting an award in damages, and then coming back two years later and saying we now believe that at the time of the taking, it was an improper taking, I think they would be foreclosed and the matter would be res judicata.

Now there might be a different situation where if at the time of the taking there was a public purpose, and then perhaps five years later, as is done with private railroad companies, they abandon that public purpose, there is a procedure whereby the original owner maybe able to recover the land, but that's not applicable to a taking for an original public purpose with the municipal government in Pennsylvania, and I say this, that if at the time of the taking there was no question raised about the validity and it goes through a proceeding, that res judicata would apply.

Justice Felix Frankfurter: Apart from res judicata, I beg your pardon – apart from res judicata does the resolution set forth or does it have set forth in particularity the purpose of the taking?

Mr. Philip Baskin: No sir, Your Honor in fact your statement of the law as to the assumptions on the public purpose of the taking of Pennsylvania correctly states the law.

In Pennsylvania if the Board of Commissioners say we're taking this for the purpose of adding it to airport purposes, that's a public taking until somebody else shows that it's not for a public purpose.

Justice Felix Frankfurter: Now is that push in the corner determination?

I mean when you say we take it for odd purposes, is everybody in the dark as to the truth or falsity of that statement?

Mr. Philip Baskin: Well, I have to go outside the record.

They are not in the dark because these things go on for months.

For example the property right now is being used for airport purposes.

This was planned several years before the resolution.

There are maps on record.

There are discussions with the county commissioner, that --

Justice Felix Frankfurter: But this may all be a guise to do a favor, to some political henchmen.

Mr. Philip Baskin: Well let me point out this to Your Honor that in the Viewers' proceeding, there is a plan presented, of what's to be taken.

Now if there is any question as to what they want to take of whether they are actually taking it for airport purposes, there is the place to raise it because the meats and bounds are set forth and the purpose is set forth.

So it's very easy for a property owner to say, well let's see if this for an airport purpose or let's see if it isn't.

All that we're saying here is there right there in front of that court, they have admitted before the court in effect that there was a proper taking.

All that we're saying to them is this, why don't you at least go back to that court where you've admitted there a proper taking, say that it wasn't a proper taking and let that court decide its own jurisdiction.

Justice Felix Frankfurter: Who was counsel for the Mashuda Company before the common plea?

Mr. Philip Baskin: I think Mr. Schmidt.

Rebuttal of Harold R. Schmidt

Mr. Harold R. Schmidt: Mr. Chief Justice I don't know if got an answer before, we have this order in Court, which I suggest --

Chief Justice Earl Warren: You may file it now, there is no objection.

Very well --