Dawson v. Mayor and City Council of Baltimore, MD Appendix to Appellants' Brief

    1  nlteh  d t a t o  (Emtrt o f  A p p e a ls

For the Fourth Circuit

No. 6903
ROBERT M. DAWSON, JR., et al.,

Appellants,
vs.

MAYOR AND CITY COUNCIL OF BALTIMORE CITY, 
CITY HALL, BALTIMORE, MARYLAND, et al,

Appellees.

No. 6904
MILTON LONESOME, et al,

Appellants,
vs.

R. BROOKE MAXWELL, et al,
Appellees.

A ppeals F rom the U nited States District Court for. the 
District of Maryland

APPENDIX TO APPELLANTS’ BRIEF

L inwood K oger, Jr.,
1607 West North Avenue, 

Baltimore, Md.,

T ucker, R. Dearing,
716 North Gay Street,

Baltimore 2, Md.,

Robert L. Carter,
Jack Greenberg,
T hurgood Marshall,

107 West 43rd Street,
New York, New York,

Attorneys for Appellants.



I N D E X

PAGE

Complaint in No. 6903 ...................................................  la
Answer............................................................................ 10a
Motion for Judgment on Pleadings ......................... 15a
Stipulation .......................................................................  16a
Answer to M otion......................................................... Ha
Complaint in No. 6904 ....................................................  18a
Answer .............................................................................  25a
Opinion of Court Ee Vacating- Preliminary Injunc­

tion, etc.......................................................................  29a
Motion for Judgment on Pleadings............................  38a
Answer to Plaintiffs’ Motion for Judgment on

Pleadings ..................................................................  39a
Stipulation ....................................................................  10a
Excerpts From Transcript of Proceedings.............  41a
Opinion of Thomsen, D. J........................................... 14a
Motion for Final Judgment...........................................  69a
Order ................................................................................  69a
Motion for Final Judgment.........................................  70a
Order ................................................................................. 70a



la

APPENDIX TO APPELLANTS’ BRIEF

ImtTii CEmtrt nf Appeals
For the Fourth Circuit

--------------------- o---------------------
No. 6903

R obert M. Dawson, Jr., et al.,

vs.
Plaintiffs,

Mayor and City Council op Baltimore City, City H all, 
Baltimore, Maryland, et al.

Defendants.
----------------------o----------------------

Complaint in No. 6903

1. (a) The jurisdiction of this 'Court is invoked under 
Title 28, United State Code, Section 1331, this being an 
action which arises under the Constitution and laws of the 
United States, viz., Fourteenth Amendment of said Con­
stitution and Title 8, United States Code, Sections 41 and 
43, wherein the matter in controversy exceeds, exclusive of 
interest and costs, the sum of three thousand dollars 
($3,000).

(b) Jurisdiction of this Court is also invoked under Title 
28, United States Code, Section 1343, this being an action 
authorized by law to be brought to redress the deprivation 
under color of law, statute, regulation, custom and usage 
of a state of rights, privileges and immunities secured by 
the Constitution and laws of the United States providing 
for Khe equal rights of the citizens of the United States 
and of all persons within the jurisdiction of the United 
States, viz., Title 8, United States Code, Sections 41 and 43.



2a

2. Plaintiffs further show that this is a proceeding for 
declaratory judgment and injunction under Title 28, United 
States Code, Section 2201 and Section 2202, and Rule 57, 
Rules of the Civil Procedure for the District Courts of the 
United States for the purpose of determining a question in 
actual controversy between the parties, to w it:

(a) The question of whether this policy, custom, and 
usage and practice of defendants in denying, on account of 
race and color, to plaintiffs and other Negro citizens simi­
larly situated, rights and privileges of attending and mak­
ing use of, both beaches and both bathhouse facilities, situ­
ated in the recreational park known as Fort Smallwood 
Park in Anne Arundel County, Maryland, and which is 
owned and operated by the City of Baltimore, Maryland, 
and which is available by said municipality for the use, 
comfort, convenience, enjoyment and pleasure of citizens 
and residents of said City.

(b) The question of whether the custom, policy, and 
usage and practice of the defendants in denying, on account 
of race and color, to plaintiffs and other Negroes similarly 
situated, rights and privileges of using the same bathhouse 
facilities and beach advantages offered to white persons 
at Fort Smallwood Park, is in violation of the equal pro­
tection clause of the Fourteenth Amendment to the United 
States Constitution.

3. All parties to this action are residents, citizens and 
domiciled in the State of Maryland and the United States.

4. This is a class action authorized pursuant to Rule 
23A of the rules of Civil Procedure for the District Courts 
of the United States. The rights here involved are of com­
mon and general interest to the members of the class repre­
sented by the plaintiff, namely Negro citizens and residents

Complaint



3a

of the State of Maryland and of the United States who have 
been denied use of recreational facilities equal to those 
offered to white persons by the City of Baltimore. The 
members of the class are so numerous as to make it imprac­
tical to bring them all before the court, and for this reason, 
plaintiffs prosecute this action in and on behalf of the class 
which they represent without specifically making the said 
members thereof, individual plaintiffs.

5. The plaintiffs, Bobert M. Dawson, Jr., Edith D. 
Bryant, and Lacy H. Hayes are citizens of the State of 
Maryland and of the United States and are residents of and 
domiciled in the City of Baltimore, Maryland. They are 
over the age of 21 and are taxpayers of the City of Balti­
more, State of Maryland and of the United States. Plain­
tiffs, Peter H. Dawson, Bobert F. Dawson, Phyllis J. Daw­
son, Catherine S. Dawson, Jr., John Bichard Bryant, Har­
rison James Bryant, Jr., and Vashti Murphy Smith are 
citizens of the State of Maryland and of the United States 
and residents of and domiciled in the City of Baltimore. 
They are minors and are bringing this action by their 
parents and next of kin. All of the plaintiffs are classified 
as Negroes under the laws of the State of Maryland.

6. Defendant, Mayor and City Council of Baltimore, is 
a body corporate, incorporated under the laws of the State 
of Maryland, having power to establish and supervise 
bathing beaches, bathhouse facilities and other recreational 
facilities for the benefit of the citizens and residents of the 
City pursuant to authority vested under Article XI-A of 
the Constitution of Maryland, Article IV, Section 6(16) 
and Section 6 B, Public Local Laws of Maryland and 
Article 25, Section 3 of the Code of Maryland.

7. Defendants, James C. Anderson, President, George 
C. Shriver, Gerald S. Wise, Samuel L. Hammerman, Bev.

Complaint



4a

Wilbur H. Waters, James H. Gorges, and Mrs. Victoria 
Rysanek are members of the Board of Recreation and 
Parks of Baltimore, an instrumentality of the City of 
Baltimore, with authority to maintain, supervise and con­
trol the operation of bathing beaches and other recrea­
tional facilities maintained by the City for the benefit and 
use of the citizens of the City of Baltimore pursuant to 
authority vested under Section 96 of the Baltimore City 
Charter, and R. Brooke Maxwell is the director of the 
Bureau of Recreation and Parks, with authority, under 
Section 95 of the Baltimore City Charter to direct the 
operation of the Department of Recreation and Parks.

8. Defendant, Sun and Sand, Inc., is a body corporate, 
incorporated under the laws of the State of Maryland. It 
is a lessee from the defendants, the Board of Recreation 
and Parks, and operates its concession under the super­
vision and control of the Board of Recreation and Parks 
in order to add to the comfort, convenience, enjoyment and 
pleasure of those persons using the facilities available at 
Fort Smallwood Park.

9. All the defendants are being sued in their official 
and representative capacities as such.

10. Pursuant to municipal authority set forth in Sec­
tion 96 of the Baltimore City Charter, defendants have 
established and are maintaining and operating bathing 
and recreational facilities at Fort Smallwood Park as a 
part of the recreational facilities maintained and operated 
by and through the City of Baltimore. This park is a 
public facility which is supported out of public funds and 
operated by the City to afford recreational facilities and 
advantages to citizens and residents of the City of Balti­
more.

Complaint



5a

11. The defendants herein are charged with the duty 
of maintaining, operating and supervising the said Fort 
Smallwood Park. As a part of their supervisory control 
and authority with respect to Fort Smallwood Park, these 
defendants are clothed and vested with the exclusive power 
to promulgate and enforce rules and regulations with 
respect to the use, availability and admission to said Fort 
Smallwood Park to the persons who desire to use same.

12. On August 10, 1950, plaintiffs Lacy Hayes, Edith 
D. Bryant, Harrison J. Bryant, Jr., John R. Bryant and 
Vashti Murphy Smith sought the use of these facilities 
and were denied same solely because of their race and color 
while at the same time white persons were permitted the 
use of said facilities without question. Admission to the 
locker facilities, was refused by an attendant, to the plain­
tiffs, solely because of their race and color, and Kenneth 
C. Cook, President of the Sun and Sand, Inc., lessee of the 
bathing house and food concessions from the City, as­
serted that he was the manager of the said Park, and that 
bath and beach facilities at Fort Smallwood Park were not 
available to the plaintiffs because they were Negroes; 
whereupon plaintiffs left after making protests.

13. On July 3, 1950, Robert M. Dawson, Jr., Peter H. 
Dawson, Catherine S. Dawson Jr., and Phyllis J. Dawson, 
were admitted to the only bathhouse and beach facilities 
at Fort Smallwood Park, but were called from the water, 
by Kenneth C. Cook, President of the Sun and Sand, Inc., 
after the Dawsons had been swimming there without in­
cident for almost an hour. Robert M. Dawson, Jr., pro­
tested for himself and his children, and they left.

14. On August 10, 1950, plaintiffs appealed to the Board 
of Recreation and Parks asserting their right to admission

Complaint



6a

and use of all facilities of Fort Smallwood Park as resi­
dents and citizens of the City of Baltimore and protesting 
the refusal of the defendants to admit them because they 
were Negroes.

15. On August 28, 1950, plaintiffs were advised by an 
official of the Board of Recreation and Parks that they 
could not be admitted to Fort Smallwood Park because 
they were Negroes. Because of their refusal of entry to 
Fort Smallwood Park, plaintiffs were denied their consti­
tutional rights to the use of public facilities and suffered 
mental anguish and embarrassment due to such refusal. On 
September 15, 1950, plaintiffs appeared before the Board 
of Recreation and Parks to protest their exclusion from 
Fort Smallwood Park on account of race and color. No 
reversal of the policy excluding plaintiffs was effected by 
the Board.

16. On March 2, 1951, this Honorable Court rendered 
judgment for Plaintiffs who were refused entry to Fort 
Smallwood Park on August 10, 1950, and subsequently 
signed an Order enjoining the defendants from excluding 
plaintiffs from facilities at Fort Smallwood Park. During 
the summer of 1951, by order of the Board of Recreation 
and Parks, colored persons exclusively used the bathhouse 
facilities at Fort Smallwood Park on certain days, while 
white persons used them on all the other days.

17. On January 25, 1952 the Board of Recreation and 
Parks formally voted to establish separate bathhouse and 
beach facility for the exclusive use of colored persons at 
Fort Smallwood Park, and to reserve the original bath­
house and beach facility of 1950 and 1951 for the exclusive 
use of white persons.

Complaint



7a

18. On February 29, 1952 the Board of .Recreation 
and Parks passed a resolution accepting the lowest bid of 
$32,354 to build a separate bathhouse for colored persons 
at Fort Smallwood Park, and recommended approval to 
the Board of Estimates. Subsequently, the Board of Esti­
mates approved this estimate, and the separate bathhouse 
for colored was built and reserved for colored.

19. On April 1, 1952 Plaintiffs’ attorney demanded by 
letter to the Board of Recreation and Parks, that every fa­
cility at the park be opened to everybody without any racial, 
religious, or color bar. The letter of the Secretary of the 
Board of Recreation and Parks in reply merely acknowl­
edged the letter stating that he would keep Plaintiffs in­
formed of policy decisions of the Board. Since then, the 
colored bathhouse has been completed and made available, 
so that one bathhouse and beach is for exclusive use of 
colored persons, and the original bathhouse and beach is 
for the exclusive use of white persons. The Board of 
Recreation and Parks has never reversed this policy of 
separate bathhouse and beach facilities for colored and 
white persons.

20. Plaintiffs maintain that these separate beaches con­
stitute an inequality, in that colored persons are still com­
pletely excluded from the original bathhouse and beach, 
and that the colored bathhouse and beach are located in a 
different locality, off the bay, thus constituting physical 
and psychological inequality under the Fourteenth Amend­
ment to the United States Constitution. The policy, cus­
tom and usage of defendants, and each of them, of provid­
ing, maintaining and operating recreational facilities at 
Fort Smallwood Park for the white citizens and residents 
of the City of Baltimore, out of public funds while failing 
and refusing to admit Negroes to all of these recreational

Complaint



8a

facilities, wholly and solely on account of their race and 
color is unlawful and constitutes a denial of their rights to 
the equal protection of the laws and of the Fourteenth 
Amendment to the Constitution of the United States.

21. Plaintiffs, and those similarly situated and affected 
and on whose behalf this suit is brought, will suffer ir­
reparable injury and are threatened with irreparable in­
jury in the future, by reason of the acts herein complained 
of. They have no plain, adequate or complete remedy to 
redress the wrongs and illegal acts herein complained of 
other than this suit for a declaration of rights and an 
injunction. Any other remedy to which plaintiffs and 
those similarly situated could be remitted would be at­
tended by such uncertainties as to deny substantial relief, 
would involve multiplicity of suits, cause further irrepar­
able injury and occasion damage, vexation and inconveni­
ence to the plaintiffs and those similarly situated.

W herefore, Plaintiffs pray:

1. That proper process issue and that this cause be 
advanced upon the docket.

2. That the Court adjudge, decree and declare the 
rights and legal relations of the parties to the subject 
matter here in controversy in order that such declaration 
shall have the force and effect of a final order or decree.

3. That the Court enter a judgment and declare that 
the policy, custom, usage and practice of the defendants 
in refusing to permit Negroes to make use of both bath­
houses and both beach facilities at Fort Smallwood Park, 
while permitting white persons to use one bathhouse and

Complaint



9a

beach without question, solely on account of race and color, 
is in contravention of the Fourteenth Amendment to the 
Constitution of the United States.

4. That this Court issue a permanent injunction for­
ever restraining the defendants and each of them, their 
lessees, agents and their successors in office from denying 
to plaintiffs and other Negro residents of the City of 
Baltimore, the use and enjoyment of any beach or bath­
house established, operated, and maintained by the City 
of Baltimore, on account of race and color.

/ s /  L inwood G. K oger, Jr.,
Linwood G. Koger, Jr.,

Attorney for Complainants, 
1607 West North Avenue, 

Lafayette 1513.

Complaint



10a

The defendants respectfully show that the Complaint 
filed herein is a continuation of the litigation in Civil 
Action No. 5170 in this Court. The defendants in both 
actions are the same except that the Reverend Wilbur H. 
Waters has taken the place on the Board of Recreation and 
Parks of Dr. Bernard Harris, and Mrs. Victoria Rysanek 
has taken the place on said Board of Dr. J. Ben Robinson; 
five of the plaintiffs in Civil Action No. 5847 were plaintiffs 
in Civil Action 5170; counsel for the plaintiffs in both 
actions is the same; the legal question in both actions is 
the same, to wit, whether segregation of the members of 
the negro race from members of the white race in the use 
of the public facilities maintained by the City of Baltimore 
for bathing at Fort Smallwood Park is legal. The defend­
ants assert that it is; the plaintiffs deny the legality of 
such segregation.

Many of the paragraphs of the Complaint in the present 
action are substantially, if not entirely, identical with the 
corresponding paragraphs in Civil Action No. 5170. The 
defendants refer to the pleadings in Civil Action No. 5170 
and pray that they may be read in connection with this 
Answer.

The Order of this Court in Civil Action No. 5170, 
referred to in Paragraph 16 of the Complaint in Action 
No. 5847 is dated April 6, 1951, and is as follows:

‘ ‘ Obdee

The motion of the plaintiffs for judgment on the 
pleadings in the above-entitled civil action came on 
to be heard on March 2, 1951, before the Honorable 
W. Calvin Chesnut, Judge.

The pleadings were read and considered and 
counsel for the respective parties were heard. There 
is no substantial difference between the material 
facts stated in the Complaint and the facts stated

Answer



11a

in the Answer. There is no difference between the 
plaintiffs and the defendants as to the applicable 
law. The defendants, in their Answer, expressly 
recognize their obligation to furnish substantially 
equal recreational facilities to negroes and whites 
at Fort Smallwood Park, if they maintain recrea­
tional facilities there open to either race; and defend­
ants have no objection to the Court passing an order 
to that effect.

It is, therefore, ordered, adjudged and decreed, 
That each of the defendants is hereby perpetually 
enjoined from discriminating against negroes on 
account of their race or color to their prejudice in 
the use of the recreational facilities maintained by 
the Mayor and City Council of Baltimore at Fort 
Smallwood Park.

Costs to be paid by the defendants.”

After the entry of said Order, the Board of Park Com­
missioners adopted a schedule for the use of the bathing 
beach at Fort Smallwood as follows:

“ Negroes to have the exclusive use of said 
facilities:—

May 30 and 31,
June 21 to June 30, inclusive,
July 21 to July 31, inclusive,
August 21 to August 31, inclusive.

“ The facilities to be reserved for white persons 
on all other days during the season of 1951.”

After the adoption of this schedule the bathing facilities 
at Fort Smallwood were used during the season of 1951 
by 13,897 white patrons and 1,143 negro patrons; the 
total use for 1951 was 15,040 patrons. In the previous

Answer



12a

year, 1950, when white patrons alone used the beach, the 
attendance was 42,531.

Further answering, the defendants say Fort Small­
wood Park was acquired by the City in May, 1928, from 
the United States Government for the sum of Fifty Thou­
sand Dollars ($50,000) and contains approximately one 
hundred (100) acres of land; the park is situated about 
twenty (20) miles distant from the heart of Baltimore 
City on a peninsula, or point, known as Rock Point, which 
projects into the Patapsco River in Anne Arundel County, 
Maryland. The City maintained a bathing beach on the 
west side of said peninsula from 1928 until 1941. During 
World War II—from 1941 to 1946—this bathing beach 
was closed, primarily because of wartime restrictions, and 
also because of the fact that this beach was partly washed 
away. In 1947 the City constructed a bathing beach on 
the east side of the peninsula, which was the one that was 
used, on alternate days as aforesaid, by both negroes and 
whites during 1951. In 1952 the City erected a bathing 
beach on the west side of the peninsula and, beginning 
May 30, 1952, opened this beach for the exclusive use of 
negroes, and limited the use of the beach on the east side 
for the exclusive use of the whites. The length of the 
beach now used exclusively by negroes is three hundred 
sixty (360) feet in length with a depth of one hundred 
fifteen (115) feet. The length of the beach used by whites 
is eight hundred fifty (850) feet, with a depth of fifty 
(50) feet. Both beaches border on the waters of the 
Patapsco River. This will appear by an examination of 
Defendants’ Exhibit No. 1, filed herewith, the said exhibit 
being “ General Highway Map, Anne Arundel County, 
Maryland, prepared by the Maryland State Roads Com­
mission, Traffic Division, in cooperation with the United 
States Department of Commerce, Bureau of Public Roads, 
data obtained from State-wide Highway Planning Survey” ;

Answer



13a

also by Defendants’ Exhibit No. 2, filed herewith, said 
Exhibit No. 2 being a map—“ City of Baltimore,Depart­
ment of Public Works, Bureau of Harbors—Approaches 
to Baltimore Harbor” .

Answering’ Paragraph 12 of the Complaint, defendants 
say that Sun and Sand, Inc. is a concessionaire of certain 
privileges at Fort Smallwood Park and was such con­
cessionaire on or about August 10, 1950, when some of 
the plaintiffs visited Fort Smallwood Park and were 
denied the use of the bathing facilities there situate at 
that time, but, as stated in Paragraph 6 of the Answer 
of these defendants in Civil Action No. 5170, the Park 
Board, prior to August 10, 1950, had received no request 
from negroes to use the bathing beach at said park and 
such use was denied them on August 10, 1950, because no 
bathing facilities had at that time been constructed for 
negroes at Fort Smallwood Park. As hereinbefore stated, 
the situation with reference to bathing’ facilities at said 
Park is now different from what it was on August 10, 
1950, in that a bathing beach for the use of negroes 
exclusively has since been constructed and is now being 
maintained.

Answering Paragraph 20 of the Complaint, defendants 
say that neither of said bathhouses and beaches are directly 
located on the bay proper. Defendants further say that 
no two pieces of land or beaches are exactly alike, but 
defendants deny that the facilities maintained by the City 
for bathing at each of said beaches are not substantially 
equal. The beach on the west side of said peninsula, used 
by the negroes, has some advantages which the beach on 
the east side, used by the whites, does not have; for 
instance, the negro bathing beach is more conveniently 
located with reference to the pier where the boat running 
from the City of Baltimore to Fort Smallwood docks for 
the discharge of passengers for Fort Smallwood Park. 
Said bathing beach is also surrounded by picnic groves and

Answer



14a

playground facilities more conveniently located with 
reference to said negro bathing beach than for the beach 
which is used exclusively by white patrons. Also, im­
mediately behind the beach used by white patrons is a 
large swamp or lagoon, which detracts from the pleasure 
of the users of the white bathing beach; the users of the 
negro bathing beach do not have to contend with the dis­
advantages of this swamp or lagoon. The bathhouse for 
negroes has a capacity of 1,050 bathers, while the white 
bathhouse can accommodate 2,944.

All facilities, other than the bathing beaches, main­
tained by the City at Fort Smallwood are open to both 
negroes and whites. Defendants deny that they violate 
any constitutional or legal right of the plaintiffs by main­
taining one beach for white patrons and the other for 
negroes.

A nd n o w , h avin g  f u lly  answ ered , defendants pray the 
Bill of Complaint be dismissed with proper costs to the 
defendants.

/s /  T homas N. B iddison,
Thomas N. Biddison, City Solicitor,

E dwin H arlan, Deputy City Solicitor,

/ s /  A llen A. Davis,
Allen A. Davis,

Attorneys for all defendants except
Sun and Sand, Inc.

/s /  David P. Gordon,
David P. Gordon,

Attorney for Sun and Sand, Inc.

Answer



15a

Motion for Judgment on Pleadings

Robert M. Dawson, Jr.; Peter H. Dawson, Minor, by 
Catherine S. Dawson, Sr., Ms mother and next of kin; 
Robert F. Dawson, Minor, by Catherine S. Dawson, Sr., 
his mother and next of kin; Catherine S. Dawson, Jr., 
Minor, by Catherine S. Dawson, Sr., her mother and next 
of kin; Lucy H. Hayes; Edith D. Bryant; Harrison J. 
Bryant, Jr., Minor, by Rev. Harrison J. Bryant, his father 
and next of kin; John H. Bryant, Minor, by Rev. Harrison 
J. Bryant, his father and next of kin; Vashti Murphy 
Smith, Minor, by Ida Murphy Smith, her mother and next 
of kin; plaintiffs herein, move the Court to enter judgment 
on the pleadings filed in this case in favor of the plaintiffs 
and against the defendants and assign therefore the fol­
lowing reasons:

1. The complaint alleges a violation of plaintiffs’ con­
stitutional rights in that defendants require racial segre­
gation in the facilities which are the subject of this action.

2. The answer admits that defendants exclude plain­
tiffs from these city-operated facilities to which they sought 
admission solely because of their race.

3. Such racial segregation violates the Fourteenth 
Amendment to the United States Constitution.

/ s /  L inwood  G. R oger, J r ., 
Linwood G. Koger, Jr.,

1607 West North Avenue, 
Baltimore, Maryland.

/ s /  Tucker R. Dearing,
Tucker R. Hearing,

716 North Gay Street, 
Baltimore, Maryland.

/ s /  Jack Greenberg,
Jack Greenberg,

107 West 43rd Street,
New York, New York.



16a

Stipulation

(Filed June 18, 1954)

It is stipulated and agreed by and between the parties 
in this case that the separate facilities in question herein 
are physically equal at this time.

/ s /  Linwood G. K oger, Jb., 
/ s /  T uckeb. R. B earing ,
/ s /  Jack Greenberg,

Attorneys for Plaintiffs.

/ s /  T homas N. B iddison,
City Solicitor, 

/ s /  E dwin H arlan,
Deputy City Solicitor, 

/ s /  H ugo A. R icciuti,
Assistant City Solicitor, 

/ s /  Francis X . Gallagher,
Assistant City Solicitor, 

/ s /  F rancis X. Gallagher,
Attorneys for all defend­
ants except Sun & Sand, 
Inc.

/ s /  David P. Gordon,
Attorney for Sun & Sand, 
Inc.



17a

Now come the Mayor and City Council of Baltimore, 
James C. Anderson, President, George G. Shriver, Gerald 
S. Wise, Samuel L. Hammerman, Rev. Wilbur H. Waters, 
James H. Gorges and Mrs. Victoria Rysanek, constituting 
the Board of Recreation and Parks, R. Brooke Maxwell, 
Director of the Bureau of Recreation and Parks, and 
Charles A. Hook, Superintendent of Parks and Pools for 
Baltimore City, Respondents, and, in answer to the Motion 
heretofore filed for judgment on pleadings by the plaintiffs 
herein, say:

1. That the Respondents admit the allegations con­
tained in Paragraph 1 of the said Motion.

2. That the Respondents deny they excluded the plain­
tiffs from the City-operated facilities, and aver that they 
merely required the plaintiffs to use the bath house and 
beach so designated for people of their race.

3. That the Respondents deny the allegations contained 
in Paragraph 3 of the said Motion.

W herefore, having answered said Motion, Respondents 
pray that it may be denied, with proper costs.

/s /  T homas N. B iddison,
Thomas N. Biddison,

City Solicitor,
/ s /  E dwin H arlan,

Edwin Harlan,
Deputy City Solicitor,

/ s /  H ugo A. R icciuti,
Hugo A. Ricciuti,

Assistant City Solicitor,
/ s /  F rancis X . Gallagher,

Assistant City Solicitor,
Attorneys for Respondents.

Answer to Motion



18a

— ------ ------ o------------------
No. 6904

M ilton L onesome, et al.,

vs.
Plaintiffs,

Sidney D. Peveeley, Chairman, et al.,
Defendants.

----------------------o----------------------

Complaint in No. 6904

1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1331, this being an 
action which arises under the Constitution and laws of 
the United States, viz., Fourteenth Amendment to said 
Constitution and Title 8, United States Code, Sections 
41 and 43, wherein the matter in controversy exceeds, 
exclusive of interest and costs, the sum of Three Thousand 
Dollars ($3,000).

(b) Jurisdiction of this Court is also invoked under 
Title 28, United States Code, Section 1343, this being 
an action authorized by law to be brought to redress the 
deprivation under color of law, statute, regulation, custom 
and usage of a state of rights, privileges and immunities 
secured by the Constitution and laws of the United States, 
viz., Title 8, United States Code, Sections 41 and 43.

2. Plaintiffs further show that this is a proceeding 
for a temporary restraining order, interlocutory, and 
permanent injunction and declaratory judgment under 
Title 28, United States Code, Sections 2201-2202, and Rules 
57 and 65, Federal Rules of Civil Procedure for the pur­



19a

pose of determining the questions in actual controversy 
between the parties, to wit:

(a) Whether the policy, custom and usage, and practice 
of Defendants in denying, on account of race and color, 
to Plaintiffs and other Negroes similarly situated, rights 
and privileges of using, without being racially segregated, 
all recreational facilities, situated in Sandy Point State 
Park and Beach, in Anne Arundel County, Maryland, which 
area is made available by the state for the use, comfort, 
convenience and enjoyment of its citizens and residents, 
is in violation of the Fourteenth Amendment to the Con­
stitution of the United States?

(b) Whether the facilities offered Plaintiffs and the 
class they represent at Sandy Point State Park and Beach 
afford Plaintiffs the equal protection of the law where 
the facilities set apart for the Plaintiffs and the class they 
represent are physically inferior and psychologically 
stigmatize Plaintiffs in a manner which makes it impossible 
for them to obtain recreation equal to that afforded white 
persons?

3. All parties to this action are citizens of the United 
States and are domiciliaries of the State of Maryland.

4. This is a class action authorized pursuant to Buie 
23A of the rules of Civil Procedure for the District Courts 
of the United States. The rights here involved are of 
common and general interest to the members of the class 
represented by the Plaintiffs, namely, Negro citizens and 
residents of the State of Maryland and of the United 
States who have been segregated in the use of recreational 
facilities in Sandy Point State Park and Beach and have 
been denied use of recreational facilities equal to those

Complaint



20a

offered to white persons by the State of Maryland. The 
members of the class are so numerous as to make it 
impractical to bring them all before the Court, and for 
this reason, Plaintiffs prosecute this action in and on 
behalf of the class which they represent without specifically 
making all members thereof individual Plaintiffs.

5. The Plaintiffs, Milton Lonesome, Marion J. Downs, 
Alvin Graham, Beatrice Martin, and Bowen Jackson, are 
citizens of the United States and are residents and domi- 
ciliaries of the State of Maryland. They are over the age 
of 21 and are taxpayers of the State of Maryland and of' 
the United States. Minor Plaintiffs Karleen Downs, 
Christine Jackson, and Lilly Mae Jackson are citizens of 
the United States and residents and domiciliaries of the 
State of Maryland; this action is brought in their behalf 
by their parents and next of kin. All of the Plaintiffs are 
classified as Negroes under the laws of the State of Mary­
land.

6. Defendants, members of the Commission of Forests 
and Parks of Maryland, Sidney D. Peverley, Bernard I. 
Gonder, H. Lee Hoffman, J. Miles Lankford, and J. Wilson 
Lord, are empowered under Article 39A, and Article 25, 
Section 3 of the Annotated Code of Maryland to establish 
and supervise recreational facilities, including bathing 
beaches and bathhouse facilities for the benefit of the 
citizens and residents of the State of Maryland. Defend­
ant Joseph F. Kaylor, is Director of the Department of 
Forests and Parks of Maryland and supervises the opera­
tions of the Department under Article 39A, Section 2 of 
the Annotated Code of Maryland. Defendant Joseph 
Henderson is Superintendent of Sandy Point State Park 
and Beach by appointment and under the supervision of 
the Commission and Director. The immediate control and

Complaint



21a

operation of the facilities, subject to this suit, is in the 
hands of the Superintendent of said facility.

7. All Defendants are being sued in their representa­
tive and official capacities.

8. Pursuant to authority set forth in Article 39A of 
the Annotated Code of Maryland, Defendants have estab­
lished and are maintaining and operating bathing and 
recreational facilities and advantages to citizens and resi­
dents of the State of Maryland.

9. The Defendants herein are charged with the duty 
of maintaining, operating and supervising Sandy Point 
State Park and Beach as a part of their supervisory 
control and authority. These Defendants have the exclu­
sive power to promulgate and enforce rules and regulations 
with respect to the use, availability and admission to Sandy 
Point State Park and Beach.

10. On July 4,1952, Plaintiffs Milton Lonesome, Marion 
J. Downs, Karleen Downs, Alvin Graham, Beatrice Martin, 
Bowen Jackson, Christine Jackson, and Lilly Mae Jackson, 
sought the use of these facilities and were denied by Joseph 
P. Kaylor the use of the facilities at South Beach at Sandy 
Point Beach and Park, solely because of their race and 
color, and Joseph P. Kaylor directed them to use the East 
Beach for colored persons, while at the same time white 
persons entered and used all facilities at South Beach, 
including roads, bathhouse, beach, concession, and picnic 
grounds, without question. Plaintiffs protested that such 
denial deprived them of their constitutional rights.

11. Plaintiffs were escorted to East Beach by Defend­
ant Kaylor and refused to use said facilities because they

Complaint



22a

were physically unfit for use, and psychologically undesir­
able, since segregated facilities could not afford them 
complete, wholesome recreation.

12. (a) The inequality, physical and psychological as 
referred to elsewhere herein, are more fully described in 
Plaintiffs’ Exhibits A through I.

(b) Exhibit A is the affidavit of Dr. Roscoe Brown, 
member of the faculty of New York University, Department 
of Physical Education and Recreation, who made a com­
parative study or survey on July 11,1952, of the facilities at 
the East and South Beaches at Sandy Point State Park.

Exhibit B is the affidavit of Mrs. Juanita Jackson 
Mitchell, member of the Executive Board of the Baltimore 
Branch of the National Association for the Advancement 
of Colored People, who held a conference with officials of 
the State Dexmrtment of Public Improvements on July 
15, 1952, at 506 Park Avenue, Baltimore, Maryland.

Exhibit C is the affidavit of Mr. Bowen Jackson, Plain­
tiff in this action, citing his reasons for his request to 
this Court for the temporary restraining order.

Exhibit D is an official aerial photograph of the Sandy 
Point State Beach and Park, made by the Maryland Air 
Photo Service, Harbor Field, Baltimore 22, Maryland, for 
the State Department of Public Improvements, which was 
given to Mrs. Juanita Jackson Mitchell by Mr. Nathan L. 
Smith, Director of the Department of Public Improve­
ments at a conference held in his office at 506 Park Avenue, 
on July 15, 1952. Mrs. Mitchell’s affidavit to this effect 
is attached to said Exhibit D.

Exhibits E, P, G, H, and I, are photographs taken by 
Irving Henry Phillips, 904 Whitmore Avenue, Baltimore, 
Maryland, on the East and South Beach facilities on July 
4, 1952.

Complaint



23a

13. Plaintiffs and those similarly situated and on whose 
behalf this suit is brought, have suffered, are suffering, 
and will suffer irreparable injury by the acts herein com­
plained of. The rights which they seek to have enforced 
are peculiarly enjoyable only during the summer months. 
They have no plain, adequate, or complete remedy to 
redrees the wrongs and illegal acts herein complained of 
other than this suit for temporary restraining order, inter­
locutory injunction, permanent injunction, and declaratory 
judgment. Any other remedy to which Plaintiffs and those 
similarly situated could be remitted would be attended 
by such uncertainties as will deny substantial relief, will 
involve multiplicity of suits, cause further irreparable 
injury, vexation, and inconvenience to them.

W herefore, Plaintiffs pray:

1. That proper process issue and that this cause be 
advanced upon the docket.

2. That the separate motion for temporary restrain­
ing order be entertained at once and be granted.

3. That a preliminary or interlocutory injunction be 
granted enjoining further denial to plaintiffs or any other 
person similarly situated from using the facilities at South 
Beach.

4. That the Court adjudge, decree, and declare the 
rights and legal relations of the parties to the subject 
matter here in controversy in order that such declaration 
shall have the force and effect of a final order or decree.

5. That the Court enter a judgment and declare that 
the policy, custom, usage and practice of the Defendants 
in refusing to permit Negroes to use all the facilities at 
Sandy Point State Park and Beach contravenes the

Complaint



24a

Fourteenth Amendment to the Constitution of the United 
States.

6. That the Court enter a judgment and declare that 
the policy, custom, usage and practice of the Defendants 
contravene the Fourteenth Amendment to the Constitu­
tion of the United States where the facilities set aside for 
the use of Plaintiffs and those similarly situated at Sandy 
Point State Park and Beach are physically inferior and 
inflict psychological damage, making equal recreation 
impossible.

7. That this Court issue a permanent injunction for­
ever restraining the Defendants and each of them, their 
lessees, agents and successors in office from denying to 
Plaintiffs and other Negro residents of the State of Mary­
land, the use and enjoyment of any beach or bathhouse 
establishment, operated and maintained by the State of 
Maryland, on account of race and color.

/s /  L in wood G. K ogeb, Jr.,
Linwood G. Koger, Jr.,

1607 West North Avenue, 
(Lafayette 1513),

Baltimore, Maryland,

Complaint

/ s /  T ucker  R . D earing ,
Tucker R. Dearing,

1235 North Caroline Street, 
(Peabody 6651),

Baltimore, Maryland,
Attorneys for Complainants.



25a

The Answer of the Defendants herein, by Hall Ham­
mond, Attorney General of the State of Maryland, and 
Robert M. Thomas, Assistant Attorney General, their 
counsel, to the Complaint filed against them herein respect­
fully says:

(1) The Defendants are without knowledge or informa­
tion sufficient to form a belief as to the truth to the allega­
tions contained in paragraphs 1, 2, 3, 4, and 5 of the Com­
plaint.

(2) The Defendants admit the allegations contained in 
paragraphs 6, 7, 8, and 9 of the Complaint.

(3) Answering paragraph 10 of the Complaint, the De­
fendants admit that on July 4, 1952, the Defendant Joseph 
P. Kaylor denied certain Negroes “ the use of the facilities 
at South Beach at Sandy Point Beach and Park, solely 
because of their race and color”  and “ directed them to use 
the East Beach for colored persons, while at the same time 
white persons entered and used all facilities at South 
Beach, including roads, bathhouse, beach, concession, and 
picnic grounds, without question” , but Defendants are 
without knowledge or information sufficient to form a be­
lief as to the truth of the allegation contained in said para­
graph 10 of the Complaint that the Negroes so denied the 
use of South Beach on July 4, 1952, were the plaintiffs 
listed in said paragraph 10 and that said Plaintiffs pro­
tested that the action of the Defendant Kaylor deprived 
them of their constitutional rights. Further answering 
said paragraph 10, the Defendants allege that the afore­
mentioned action of the Defendant Kaylor was taken pur­
suant to the policy and practice of the Defendants to

Answer



26a

reserve South Beach at Sandy Point State Park for the 
exclusive use of white persons and to reserve East Beach 
at said Park for the exclusive use of Negroes, and pursuant 
to the policy and practice of the Defendants to do all 
within their power to keep the two said Beaches and the 
facilities thereon equal in size, in proportion to the white 
and Negro population of the State of Maryland, and equal 
in quality.

(4) Answering paragraph 11 of the Complaint, the De­
fendants admit that on July 4, 1952, the Defendant Kaylor 
directed certain Negroes to East Beach, but are without 
knowledge or information sufficient to form a belief as to 
the truth of the allegation in said paragraph 11 that the 
said Negroes “ refused to use said facilities because they 
are physically unfit for use, and psychologically unde­
sirable” .

(5) Answering paragraph 12 of the Complaint, the 
Defendants deny generally the inequality alleged in para­
graph 12 of the Complaint and in Plaintiffs’ Exhibits A 
through I attached to said Complaint, but the Defendants 
admit that whereas East Beach and South Beach were 
originally natural beaches equal in quality, unusually heavy 
storms in the Spring of 1952 and other natural causes 
beyond the control of the Defendants have caused East 
Beach to erode, with the result that some sand has been 
washed away and parts of the beach have become muddy. 
Further answering said paragraph 12 and Plaintiffs’ Ex­
hibits thereto, the Defendants allege that engineers have 
already studied the erosion problem at East Beach and 
have devised plans for the correction thereof. The De­
fendants have submitted their budget requests to the State 
Planning Commission, giving the highest priority to the

Answer



27a

funds required to correct the aforementioned deficiencies 
at East Beach. The Defendants further allege that it may 
be possible to correct the erosion problem at East Beach 
prior to the official reopening of Sandy Point State Park 
in the Summer of 1953 and that the Defendants will do all 
within their power to accomplish that result. The defend­
ants further allege in answer to said paragraph 12 of the 
Complaint that the photographs contained in Plaintiffs’ 
Exhibits D, E, F, G, H, and I, or copies thereof, have not 
been served on any of the Defendants and that, therefore, 
the Defendants are without knowledge or information suffi­
cient to form a belief as to whether said photographs ac­
curately portray the conditions at Sandy Point, State Park, 
and on the various beaches thereof, at the times in question 
in this proceeding.

(6) Answering paragraph 13 of the Complaint, the 
Defendants deny the allegations contained in said para­
graph. Further answering said paragraph 13, the defend­
ants allege that Sandy Point State Park was officially 
closed for the season on September 14, 1952, and will not 
be officially reopened until a date yet to be determined in 
May, June or July of 1953. Throughout this entire period 
in which the said Park has been and will be officially closed, 
the public has been and will be permitted to use the Park 
grounds, but no bathhouses or other facilities on either 
East Beach or South Beach have been or will be available 
for the use of the public, and no lifeguards have been or 
will be stationed on East Beach or South Beach. Due to 
the limited use of the said Park during the closed season 
under the circumstances outlined above, the Defendants do 
not deem it necessary or practical to enforce the policy of 
separate and equal facilities throughout said closed season 
and have not attempted and will not attempt to enforce

Answer



28a

segregation of the Plaintiffs or others in the same class 
as the Plaintiffs in the use of said Park throughout the 
period in which it has been and will he officially closed.

W herefore, having fully answered the Complaint filed 
against them herein, the Defendants pray to be dismissed 
hence with their reasonable costs.

A nd, as in duty bound, etc.

/ s /  H all Hammond (per R. M. T.), 
Attorney General.

/ s /  R obert M. T homas,
Asst. Attorney General, 

Attorneys for Defendants, 
1201 Mathieson Building, 

Baltimore 2, Maryland.

Answer



29a

Baltimore, Maryland, July 9, 1953 

Opin io n  (oral)

Opinion of Court Re Vacating Preliminary
Injunction, etc.

Chesnut, J . :

Gentlemen, by the very nature of the ease, it calls for a 
prompt decision. It is well to go back a bit and see when 
this case began, and what is the object of the suit.

The case was instituted sometime late last summer, in 
August, 1952, and the points made in the complaint then 
filed by the plaintiffs were, in the first place, that the State 
Board of Forests and Parks had no authority constitution­
ally to require segregation of races, with regard to the 
beaches at Sandy Point. The second and alternative con­
tention was that the facilities for bathing at Sandy Point 
were unequal. Now, as far as I can recall, there was no 
application to advance the hearing on motion for restrain­
ing order or preliminary injunction against the defendants 
during that summer. It may very well be that because of 
the time and the proximity to the close of the summer sea­
son at Sandy Point made it hardly a practical thing to set 
the case for an earlier hearing. At all events, the first 
hearing that I can recall in the case now is that about the 
first of May, I think, I was asked to assign a date for a 
preliminary injunction hearing, and I fixed a date. In 
due course, that came on to be heard. On the evidence 
then presented I found that the facilities were unequal. 
There was no argument, nor has there been up to the 
present time, any discussion as to the constitutional ques­
tion involved, but a question of fact as to whether the 
facilities were equal.

Now, on the evidence that was presented on June 2nd, 
at the hearing on the plaintiffs’ motion for preliminary



30a

injunction, I found, as a matter of fact, that the facilities 
for white people and colored people, that is, with respect 
to the South Beach for white people and East Beach for 
colored people, were not equal, and it further appeared 
from the evidence at that time that it was quite unlikely, 
as the matters then stood, that there would he a substan­
tial change in the situation for several months, or, I think, 
as it was expressed, until the middle of the summer. So a 
preliminary injunction was awarded to the plaintiffs.

There were two reasons why it seemed unlikely then 
that there could be any equality brought about at the two 
beaches. One was a very serious doubt as to whether the 
State could get any funds which could be used for the 
purpose of improving the East Beach. And, secondly, 
even if the funds could at once be made available, it seemed 
rather doubtful that the improvements would be made in 
time to be of practical benefit to anybody. Of course, the 
Court is not called upon to prophesy about facts that might 
happen in the future.

On or about July 2nd, I received word that the defend­
ants wished to move or had filed a motion to vacate the 
injunction on the ground that the conditions had changed, 
and that the facilities then existing were equal. In due 
process, the plaintiffs were entitled to file their answer to 
that paper, which apparently was filed on July 2nd, with 
the hope on the part of the State to get the advantage of 
the week-end of July 4th for the use of the beaches by the 
people of the State. But, as the plaintiffs were entitled to 
file their answer, they were justified in taking that time 
before filing an answer. They filed their answer on July 
6th, I think, or affidavit made, and I began the hearing on 
the next day. Counsel for the plaintiffs said they were 
not ready then, but I heard the State’s side of the evi­
dence, postponed further consideration of it to give plain-

Opinion of Court Re Vacating Preliminary
Injunction, etc.



31a

tiffs ample opportunity to have an inspection made of the 
beaches, as they desired, and produce such testimony as 
they desired, and then it was understood on Tuesday, 
when we had the hearing, that the final hearing on the 
evidence, at least, would be made. Now, then, that morn­
ing I learned, much to my surprise and astonishment 
really, that the person whom the plaintiffs desired to pre­
sent as an expert on the equality of the beaches had been 
refused admittance to the premises yesterday afternoon, 
at five o ’clock. He was restricted for some reason, not 
being able to examine the South Beach, and he thought 
the thing to do, in order to compare East Beach and South 
Beach, was to decline to inspect the East Beach, although 
the opportunity as to inspection of it was tendered him at 
the time.

I heard the explanation made by representatives of the 
State Board of Forests and Parks as to why this had 
happened, the plaintiffs’ witness had not been given a free 
opportunity to inspect everything he wanted, and I cer­
tainly was not impressed with their reasons for it.

At all events, this morning the plaintiffs were not pre­
pared to go on with the evidence. I think the defendants 
made a primary error of judgment there in attempting to 
limit freedom of inspection. Then, I think there was lack 
of cooperation on the part of the plaintiffs in their refusal 
to inspect East Beach, which was really the one more 
particularly of importance here, because the testimony, as 
I recall it, was that nothing had been done to the South 
Beach at all. So I regretted the lack of cooperation in this 
case between counsel, especially as the Court was doing 
its best to cooperate with everybody in trying to get a 
prompt hearing in the case. However, all that is more or 
less water over the dam or under the bridge, and is of no 
particular consequence, because I have heard all the evi­
dence that both sides desired or were able to produce.

Opinion of Court Re Vacating Preliminary
Injunction, etc.



32a

In the first place, let me say, as to the constitutional 
question that is involved, that has not been argued before 
the Court at this time, and I rather gather that counsel 
for the plaintiffs did not desire to argue it because a very 
similar question is pending now in the Supreme Court of 
the United States, and has been pending there for many 
months. Upon the last session of the Supreme Court, it 
ruled that that case should go over for further argument 
on particular points generally, and in particular, until the 
next term of court in the fall.

The existing constitutional law on the subject, though, 
at the present time, is that segregation is the policy of the 
State, and when it is adopted by the State, it is still consti­
tutional provided facilities for the different races are sub­
stantially equal. Therefore, the Court has nothing to do 
at this time with the first point that is raised. In other 
words, it does not call for any adjudication on my part.

A much narrower question, and the only question before 
me, is whether the facilities for the different races at Sandy 
Point Beaches are substantially equivalent. Now, I have 
given some thought to that matter. In the first place, when 
the hearing took place on June 2nd, there was no question 
but that the East Beach was not equal to that of the South 
Beach and, as I understand it, Mr. Parker, counsel for the 
defendants, expressly concurred in that view as of that 
time. The contention, however, on the other side at the 
present time is that the facilities have been made equal.

Now, what are the essentials of a bathing beach? In 
the first place, there is nobody I know of who contends 
that a bathing beach along the Chesapeake Bay is at all 
comparable in its quality or equal characteristics compar­
able to many features of beaches such as Atlantic City, 
Cape May, and elsewhere. Nature simply has not provided

Opinion of Court Re Vacating Preliminary
Injunction, etc.



33a

the type of bathing beach in the waters of the Chesapeake 
Bay that it has for bathers on the Atlantic Seaboard in 
the Middle States. The essentials of a beach, whether 
Atlantic City or Ocean City or on the Chesapeake Bay, I 
think are of three factors. One is the bathhouse, its sani­
tation, its construction, its water supply, and general facili­
ties for the convenience and comfort of the bathers. Sec­
ondly, is the quality of the beach itself, that is to say, the 
soil or sand of the beach from the bathhouse to the water. 
Third, is the gradual increase in depth of the water as 
you proceed into it. If you have a rapidly shelving beach, 
it may be quite dangerous, especially for young children 
and for not qualified swimmers. If you have water increas­
ing in depth to such a slight degree that you have to wade 
out a half mile before you undertake to swim, that is a 
disadvantage.

Now, I think the question of whether the East Beach 
is substantially so good as the South Beach must be deter­
mined by those three factors, and as of the present time.

Now, what has happened? The injunction was issued 
on June 4th. The State acting, I think, through the author­
ity of the Board of Public Works, very promptly made a 
substantial sum of money available for the improvement 
of the East Beach. I think the evidence was that $36,000 
had been appropriated for that purpose, or made available, 
and a very competent contractor named Asher, who has a 
very considerable experience in this special matter of pro­
viding beaches along the Chesapeake Bay, was engaged to 
improve the East Beach. Instead of taking two months or 
more to do work which possibly could ordinarily not have 
been expected to be done in that time, the evidence before 
me shows that this contractor, a competent and experienced 
man, knowing what to do because he had had similar work 
to do in other places and had successfully done it, this

Opinion of Court Re Vacating Preliminary
Injunction, etc.



34a

contractor put on a special force of men and he went right 
to work. And he did do a very thorough job there. As a 
matter of fact, the State has incurred an expense not only 
of $36,000, when the contract was let, but has actual ex­
penditures of $66,000 for the work done solely on the East 
Beach by the contractor.

What was the work done ? In the first place, there was 
a proper objection made heretofore to the quality and 
character of the land or soil or sand over which people had 
to travel to go from the bathhouses to the water, and a 
good deal of what has been referred to as root mat had 
become imbedded with the sand and gravel. That was all 
taken up, so far as the evidence shows. There is hardly 
any dispute that that has not been done.

It was originally contemplated, according to the evi­
dence, as I recall it, on Tuesday, that 18,000 tons of good 
quality sand should be brought from another point miles 
away by this contractor—Davidsonville I think he referred 
to as the place where he got it—and that he had brought 
in and placed on the East Beach about 30,000 tons of sand. 
Now, then, I have seen samples of that sand which were 
taken and exhibited here in Court. To my mind, it is 
perfectly clear that as of the present time, the quality of 
sand or the soil which is traversed from the bathhouses to 
the water is superior on the East Beach to that on the 
South Beach.

Now, as far as the bathhouses themselves are concerned, 
there has never been any controversy, as I understand it, 
as to the quality of the two being precisely the same. They 
followed, as I understand it, the same specifications in 
building them. The number of separate bath houses, I 
believe, is smaller on the colored section than on the white, 
because statistics here have shown there is a very much 
smaller number of colored people who have availed them­

Opinion of Court Re Vacating Preliminary
Injunction, etc.



35a

selves of the facilities. Possibly it is true that has been 
due to the fact that heretofore they were not equal or 
suitable, and they cannot be blamed for utilizing something 
that is not agreeable. But unless and until there is a 
demand for a larger number of bathhouses for the colored 
people, I find from the evidence that the quality all around 
there is certainly equal to, indeed is the same as that for 
the white people. Of course, if more are needed, they will 
have to be constructed hereafter by the State, if the quality 
is to be maintained.

Now, then, when you come to the gradual increase in 
the depth of water, and the sand under the water, and the 
general comfort and pleasure of bathing, I find that at 
least the greater weight of the evidence here by people 
who I think are most qualified to speak, based on their 
experience, as testified to, is that the approach into the 
water at the East Beach is as good as that at the South 
Beach.

I think that covers the three essentials of what consti­
tutes really a bathing beach. There are some other things 
here the plaintiffs rely on which I think are not really 
material to the case.

In the first place, something is said about there being 
a pond which is more attractive in the rear of the South 
Beach than that, if there is any, at the East Beach. That 
is not an essential of a bathing beach. That is simply one 
of the features at Sandy Point Park as a whole, and it 
has no particular relation to the bathing beaches. Then 
it is suggested that there are more pleasant places to eat 
a. luncheon under the trees on the South Beach than on the 
East Beach. There, again, that is no essential point of a 
bathing beach. So far as I can recall, I don’t remember 
either at Cape May or Atlantic City—I have not been to 
Ocean City recently—that there are any trees at all on the

Opinion of Court Re Vacating Preliminary
Injunction, etc.



36a

beach or right by the beach. Until you cross the boardwalk 
at Atlantic City, I do not think you can find anything 
green. What most people do, I believe, at beaches, accord­
ing to what I have seen in illustrated weeklies, is that they 
have tents out there and sit under them, or they bury 
themselves in the sand and shade themselves or part of 
themselves in that way to some extent. At all events, I 
do not think picnic groves are an essential part of the 
picture to determine whether the facilities at Sandy Point 
are equal.

I think that practically covers the matter. My ultimate 
finding, as a matter of fact, is that the facilities are in fact 
equal, not only substantially equal, using the word with a 
certain amount of leeway, but I think the State has done, 
according to the evidence, a very excellent job there to 
equalize the conditions.

I must add, however, not that it is a thing of impor­
tance at the present time but a problem that will remain 
that must be. taken into consideration.

At the first hearing back in June, I noted that the report 
from the State Geologist was to the effect that the con­
tinuity of desirable conditions on South Beach was a 
matter of natural hazards or sources or conditions likely 
to be more permanent than those of the East Beach, and 
that until jetties were built out into the water, jetties or 
groins, I think they are called, there would likely be from 
time to time an erosion of the East Beach. The problem, 
however, is not what may be the condition as the result of 
a severe storm that may happen here within a week or 
within six months, but what is the condition today. If 
there is a storm which erodes the East Beach at any time 
hereafter during the summer season, and it is not immedi­
ately repaired or repaired as promptly as reasonable ex­
pedition would permit by the Board of Forests and Parks

Opinion of Court Re Vacating Preliminary
Injunction, etc.



37a

then, of course, the plaintiffs are entitled to ask for a 
reopening of the matter, with a probable restoration of the 
injunction. But I think the matter of constructing these 
groins or line of breakwaters to prevent erosion is some­
thing that deals with the long-range problem of mainten­
ance. It is quite possible that if these breakwaters are 
not established during the summer, the ordinary high tides 
of the fall or the more severe water conditions of the. 
winter, may entirely change the situation there and require 
a restoration of the injunction. It is quite probable that 
before another summer season, there may be constitutional 
law to be considered in connection with the whole problem. 
Of course, as I say, the Court is not dealing with that matter 
at this time-.

As I find that by the energies of the State and expendi­
ture of State money for the express purpose of in good 
faith creating equal facilities, that result has at the pres­
ent time, some five weeks after the injunction was issued, 
been accomplished, I think the defendants are entitled to 
have a vacation of the injunction which heretofore was 
passed in the case. And, of course, on the basis of it being 
permissible legally, it is obviously desirable that the people 
of the State of Maryland should have the benefit of this 
more or less natural forest and park area which has been 
acquired for them, and that they should not be closed with 
respect to the particular summer activities of bathing, 
when, as I find, the facilities there are equal.

Counsel can prepare and present to me, if they desire, 
promptly this afternoon, the order vacating the injunction.

Opinion of Court Re Vacating Preliminary
Injunction, etc.

I certify that the foregoing is a true and correct tran­
script of the opinion of the Court in the above-entitled case.

/ s /  Ray F arrell,
Official Reporter.



38a

Motion for Judgment on Pleadings

Milton Lonesome, Marion J. Downs, Karleen Downs, 
Minor, by Marion J. Downs, her mother and next of kin; 
Alvin Graham, Beatrice Martin, Bowen Jackson, Christine 
Jackson, Minor, by Bowen Jackson, her father and next 
of kin; Lilly Mae Jackson, Minor, by Bowen Jackson, her 
father and next of kin, plaintiffs herein, move the Court 
to enter judgment on the pleadings filed in this case in 
favor of the plaintiffs and against the defendants and 
assign therefore the following reasons:

1. The complaint alleges a violation of plaintiffs’ con­
stitutional rights in that defendants require racial segre­
gation in the facilities which are the subject of this action.

2. The answer admits that defendants exclude plain­
tiffs from these state-operated facilities to which they 
sought admission solely because of their race.

3. Such racial segregation violates the Fourteenth 
Amendment to the United States Constitution.

/ s /  Linwood G. R oger, Jr., 
Linwood G. Koger, Jr.,

1607 West North Avenue, 
Baltimore, Maryland.

/ s /  Tucker R. B earing,
Tucker R. Dearing,

716 North Gay Street, 
Baltimore, Maryland,

/ s /  Jack Greenberg,
Jack Greenberg 

107 West 43rd Street,
New York, New York.

Attorneys for Plaintiffs.



39a

Answer to Plaintiffs’ Motion for Judgment 
on Pleadings

Now come the Defendants in the above entitled case, 
by Edward D. E. Rollins, Attorney General of Maryland, 
and W. Giles Parker, Assistant Attorney General, their 
attorneys, and, in answer to the Motion for Judgment on 
Pleadings, says:

1. That the Defendants admit that the complaint alleges 
a violation of Plaintiffs’ constitutional rights.

2. That Defendants deny that Plaintiffs are excluded 
from the State-operated facilities, hut aver that Plaintiffs 
and all others are admitted to Sandy Point State Park, 
and that separate but equal facilities have been provided 
in connection with bath houses and bathing beaches only.

3. That Defendants deny that any acts of theirs con­
stitute a violation of the 14th Amendment to the United 
States Constitution.

A nd, having answered the aforesaid Motion, Defend­
ants pray that the same be dismissed with proper costs.

/ s /  E dward D. E. Rollins, 
Attorney General,

/ s /  W. Giles Parker, 
Assistant Attorney General, 

Attorneys for Defendants.



40a

Stipulation

(Filed June 18, 1954)

It is stipulated and agreed by and between the parties 
in this case that the separate facilities in question herein 
are physically equal at this time.

/ s /  L inw ood  G. K oger, Jr.,
/ s /  T u cker  R. B earing ,
/ s /  J ack  Greenberg ,

Attorneys for Plaintiffs.

/ s /  E dward D. E. Rollins, 
/ s /  W . Giles Parker,

Asst. Attorney General, 
Attorneys for Defendants.



41a

— ---------------------------------- o - ----------------------------------

No. 6903

Robert M. Dawson, et al.,

vs.
Mayor and City Council of Baltimore, et al.

No. 6904

M ilton L onesome, et al., 

vs.
R. Brooke Maxwell, et al.

—----------------------------o---------------------------- --

Excerpts From Transcript of Proceedings *

Tuesday, June 22, 1954.
#  #  *

[3] Mr. Parker: May it please the Court I would like 
to make it clear that I am representing* the Department of 
Forests and Parks of the State of Maryland, and as far as 
I am concerned I am not going to argue the philosophy or 
morality or wisdom or not of any separation of races with 
respect to [4] education per se, but I am solely interested 
in representing the State of Maryland before this Court 
to make out its contention with respect to the Department 
of Forests and Parks represented by a Commission, this 
Commission which issues regulations such as it has in this 
case, and also I mention the fact that at Sandy Point we 
have these equal facilities, and at times other than the swim­
ming time there is no segregation at all, hut we do have

*  Mr. Parker represented defendants in Lonesome vs. Maxwell.
Mr. Harlan, see infra, p. 42a, represented defendants in Dawson 

vs. Mayor.



42a

Excerpts From Transcript of Proceedings

these equal facilities down there and other facilities are 
open to all, and there are no other segregated facilities that 
I know of at other places in the State of Maryland in con­
nection with recreation other than the beach and bathing- 
facilities at Sandy Point, and at Sandy Point State Park, 
as I say, only the bath houses and bathing beach are sepa­
rated. The rest of the park is open to all and there is no 
segregation of any kind in the winter, of course, throughout 
the park, and as far as the other facilities are concerned, 
fishing facilities, and so on, they are open to everyone.

The Court: And you say there are no segregated facili­
ties in the field of public recreation in the State Forests or 
Parks?

Mr. Parker: Yes. The other State Parks are operated 
on a free-for-all basis, open to all, and at Sandy Point the 
only place of any kind where the Department of State 
Forests and Parks operates that is the bath houses and 
[5] bathing beach.

Now, I think there is no dispute that there is that this 
Department has felt that it is necessary to do this because 
they might fear there might be some disorder or something 
of that sort, but of course there is no statute requiring it, 
and I don’t believe there is anything to prevent them from 
requiring segregation other than in the public schools.

*  *  *

[18] The Court: Well, as I understood Mr. Parker, he 
makes the point that there must be some proper Govern­
mental objective, that the rule must be reasonable, a rea­
sonable one in order to achieve the objective, and that there 
must be actual equality.

Mr. Harlan: Yes.
The Court: Assuming these tests are controlling, what 

is the Governmental objective which you seek to maintain 
by segregation?



43a

Excerpts From Transcript of Proceedings

Mr. Harlan: I think the Governmental objective is to 
preserve order, to prevent any fights or riots at the swim­
ming pools, as where you have contact, physical contact, 
physical sport in recreation, you have to do that, as they 
have to be kept apart, if possible.

Now, in the Boyer case there was much trouble where 
those people were ordered to leave and they sat down and 
would not leave. Certainly it was the exercise of a Gov­
ernmental function there, as was pointed out by Judge 
Bond in the Durkee case.

Now, I agree, of course, that conditions have [19] 
changed, that the situation has changed, and you have the 
Brown case and Bolling cases with respect to the field of 
education but to say that that applies or that there is 
sociological or social damage in the field of public recrea­
tion or on public beaches, I think that is going far afield, 
which the Supreme Court has not done. With respect to 
that the Court stated in the Bolling case:

“ Classifications based solely upon race must be 
scrutinized with particular care, since they are con­
trary to our traditions and hence constitutionally 
suspect.”

It is to be noted how that is worded, that they are to 
be looked at carefully, that they are to be scrutinized care­
fully.

The Court: Well, you feel there has to be some public 
necessity which would justify it.

Mr. Harlan: I think there must be segregation in this 
field to prevent contact between the races. Certainly other­
wise you would certainly hurt bathing from an attendance 
standpoint. I think the basic question here is whether you 
apply the Brown and Bolling cases to the field of recrea­
tion or whether you reject the doctrine of Plessy entirely, 
and we feel that the law was laid down in this Court by 
Judge Chesnut in the Boyer case and the other cases that 
were tried here.



44a

The motions for judgments on the pleadings in these 
three cases raise a single legal question: Does segregation 
of the races by the State of Maryland and the City of 
Baltimore at public bathing beaches, bath houses and 
swimming pools deny plaintiffs any rights protected by 
the Fourteenth Amendment.

No. 5965
In this case, filed in August, 1952, plaintiffs, adult and 

minor Negroes, brought suit against the Commissioners 
of Forests and Parks of the State of Maryland and the 
Superintendent of Sandy Point State Park and Beach, to 
restrain defendants from operating the bath houses and 
bathing facilities at Sandy Point State Park on a segre­
gated basis. Plaintiffs alleged that the facilities afforded 
Negroes were not equal to those afforded whites and that 
they had been denied admission to the facilities reserved 
for whites solely because of their race or color. Defend­
ants answered, denying that the facilities were not sub­
stantially equal.

On June 4, 1953, following a hearing on plaintiffs’ mo­
tion for a preliminary injunction, Judge Chesnut entered 
an order in which he found that the South Beach facilities 
(for whites) were superior to those at East Beach (for 
Negroes), and restrained defendants from excluding any 
person, solely on account of race and color, from the facili­
ties at South Beach. On July 1, 1953, having improved the 
facilities at East Beach, defendants moved to vacate the 
preliminary injunction. After a hearing Judge Chesnut 
entered an order on July 9, 1953 in which he found as a 
fact that as of the date of said hearing the bathing facili­
ties at East Beach were at least equal to those at South 
Beach, and vacated and struck out the preliminary injunc­
tion theretofore granted, with the right to plaintiffs to

O p in io n  of Thomsen, D. J.



45a

renew their motion at any time the facilities at South Beach 
and East Beach may not be in substantial equality.

No. 5847
In this case, filed in May, 1952, plaintiffs, adult and 

minor Negroes, are suing the City of Baltimore, its Board 
of Recreation and Parks, and Sun arid Sand, Inc., as cor­
poration which operates a concession under the supervision 
and control of that Board at Fort Smallwood Park, to re­
strain defendants from operating the bath houses and 
bathing facilities at Fort Smallwood Park on a segregated 
basis, alleging that the facilities afforded Negroes are not 
equal to those afforded whites, and that they were denied 
admission to the facilities reserved for whites solely be­
cause of their race or color. Defendants answered, deny­
ing that the facilities are not substantially equal.

No. 6879
In this case, filed in September, 1953, plaintiffs seek to 

restrain defendants from operating on a segregated basis 
any swimming pool established, operated and maintained 
by the City of Baltimore. Defendants are the City, its 
Board of Recreation and Parks, and the Superintendent of 
Parks and Pools. One of the plaintiffs is white; all the 
rest of the plaintiffs are Negroes. Plaintiffs allege that the 
bathing facilities which defendants provide for Negroes 
are not equal to those provided for white persons. Plain­
tiffs also allege that defendants, by operating the facilities 
on a segregated basis, deny plaintiffs the right to associate 
with their friends. Defendants answered that the facilities 
afforded Negroes are substantially equal to those afforded 
white persons, and that any denial of use of the bathing 
facilities which plaintiffs may have experienced was a result 
of the enforcement of rules and regulations establishing a

Opinion of Thomsen, D. J.



46a

policy of segregation in the use of bathing facilities in the 
public parks of Baltimore City.

In all of the cases further proceedings were delayed 
pending the decision of the Supreme Court in the school 
segregation cases.

Several days after the filing of the opinion in the Brown 
v, Board of Education (May 17, 1954), 347 U. S. 483, coun­
sel for plaintiffs asked this Court to set these three cases 
for prompt hearing. Counsel for defendants offered no 
objection, and the court set the hearings for June 22, 1954. 
Thereafter, on May 29, 1954, plaintiffs filed a motion for 
judgment on the pleadings in each of the three cases, as­
serting in each case: (1.) that the complaint alleges a vio­
lation of plaintiffs ’ constitutional rights in that defendants 
require racial segregation in the facilities which are the 
subject of this action; (2.) that the answer admits that 
defendants exclude plaintiffs from these state-(city)-oper­
ated facilities to which they sought admission, solely be­
cause of their race; and (3.) that such racial segregation 
violates the Fourteenth Amendment to the United States 
Constitution. The respective defendants filed answers to 
these motions, denying that their actions violate the Four­
teenth Amendment.

At a pre-trial conference counsel for all parties in No. 
5847 (the Fort Smallwood Bathing Beach case) stipulated 
“ that the separate facilities in question herein are physi­
cally equal at this time.”  A  similar stipulation was filed 
in No. 5965 (the Sandy Point Bathing Beach case). Counsel 
in No. 6879 (the case involving the city swimming pools) 
stipulated “ that the only question to be argued at this 
hearing is the broad question of the right of the City to 
segregate the races in public swimming pools. Any other 
question raised by the pleadings is reserved for argument 
at some future time, if necessary.”

Sandy Point State Park is operated administratively by 
the Commission of Forests and Parks of the State of Mary­

Opinion of Thomsen, D. J.



47a

land under the authority of Sec. 340 et seq., Article 66 c, 
Annotated Code of Maryland (1951 Ed.). The law does 
not require the Commission to operate a bathing beach in 
a segregated or non-segregated manner, nor indeed does 
it require the Commission to operate any bathing beach at 
all. The facilities at Sandy Point State Park, aside from 
the bathing' beaches and bath houses, are entirely unsegre­
gated, but the Commission has provided separate bathing 
beaches and bath houses for whites and Negroes, by rules 
and regulations adopted by the Commission in the exercise 
of its administrative powers. It was stated at the hearing, 
without objection or contradiction, that the bath houses and 
bathing beaches at Sandy Point are the only segregated 
facilities under the control of the Commission of Forests 
and Parks of the State of Maryland.

Section 6, Sub-section 19, Baltimore City Charter grants 
the Mayor and City Council of Baltimore power to estab­
lish, maintain, control and regulate parks, squares and 
municipal recreational facilities; Section 96 of said Charter 
gives the Board of Recreation and Parks authority to 
regulate and control the use of recreational facilities in 
the public parks of Baltimore. Neither the Constitution 
of Maryland, the City Charter, nor any statute or ordi­
nance requires the Board of Recreation and Parks to oper­
ate the bathing, swimming and other recreational facilities 
on a segregated or unsegregated basis. Over the years the 
Board of Recreation and Parks has made and modified 
various rules and regulations dealing with segregation in 
the public parks. At the present time no parks, as such, 
are segregated, but certain recreational facilities, includ­
ing the bathing beaches, the swimming pools, some tennis 
courts and fields for competitive sports, and some play­
grounds and social activities are operated on a segregated 
basis. Effective July 10, 1951, the Board of Recreation 
and Parks set aside for inter-racial play certain athletic 
and recreational facilities in a number of parks. Counsel

Opinion of Thomsen, D. J.



48a

agreed at the hearing that a list of these facilities be made 
a part of the record, and they are referred to later in this 
opinion.

The authority of the respective boards to make the 
regulations which are challenged in these cases is sup­
ported by Durlcee v. Murphy (1942), 181 Md. 259, a case 
involving the segregation of white and Negro players on 
municipal golf courses. In that case Chief Judge Bond, 
after referring to the relevant sections of the Baltimore 
City Charter of 1938 (not substantially different from 
those of the present Charter of 1946) which conferred 
powers upon the Park Board to make rules and regula­
tions, said:

“ And these provisions must, we conclude, be 
construed to vest in the Board the power to assign 
the golf courses to the use of the one race and the 
other in an effort to avoid any conflict which might 
arise from racial antipathies, for that is a common 
need to be faced in regulation of public facilities in 
Maryland, and must be implied in any delegation 
of power to control and regulate. There can be no 
question that, unreasonable as such antipathies may 
be, they are prominent sources of conflict, and are 
always to be reckoned with. Many statutory provi­
sions recognize this need, and the fact needs no illus­
tration. ‘ Separation of the races is normal treat­
ment in this state.’ Williams v. Zimmerman, 172 
Md. 563, 567, 192 A. 353, 355. No additional ordi­
nance was required therefore to authorize the Board 
to apply this normal treatment; the authority would 
be an implied incident of the power expressly 
given.”  181 Md. at 265.

Plaintiffs question whether the statement “ separation 
of the races is normal treatment in this state”  is still true,

Opinion of Thomsen, D. J.



49a

but do not question the power of the respective boards to 
make such regulations except as they may be prohibited 
by the Fourteenth Amendment to the Constitution of the 
United States.

This court has consistently held, following Plessy v. 
Ferguson, 163 U. S. 537, that segregation of races with 
respect to recreational facilities afforded by the State for 
its citizens is within the constitutional exercise of the police 
power of the State, provided the separate facilities afforded 
different races are substantially equal. Law v. Mayor <§ 
City Council of Baltimore (D. C. Md. 1948), 78 F. Supp. 
346; Boyer v. Garrett (D. C. Md. 1949), 88 F. Supp. 353.

Boyer v. Garrett was appealed to the United States 
Court of Appeals for the Fourth Circuit, which affirmed this 
court, 183 F. 2d 582, saying:

“ The contention of plaintiffs is that, notwith­
standing this equality of treatment, the rule provid­
ing for segregation is violative of the provisions of 
the federal Constitution. The District Court dis­
missed the complaint on the authority of Plessy v. 
Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 
256; and the principal argument made on appeal is 
that the authority of Plessy v. Ferguson has been 
so weakened by subsequent decisions that we should 
no longer consider it as binding. We do not think, 
however, that we are at liberty thus to disregard a 
decision of the Supreme Court which that court has 
not seen fit to overrule and which it expressly re­
frained from reexamining, although urged to do so, 
in the very recent case of Sweatt v. Painter, 70 S. 
Ct. 848. It is for the Supreme Court, not us, to 
overrule its decisions or to hold them outmoded.”

Certiorari was denied by the Supreme Court, 340 U. S. 
912.

Opinion of Thomsen, D. J.



Opinion of Thomsen, D. J.

That decision of the Court of Appeals for the Fourth 
Circuit is binding on this court in this case unless the basis 
for the decision of the Court of Appeals has been swept 
away by subsequent decisions of the Supreme Court.

Brown v. Board of Education certainly reexamined the 
decision in Plessy v. Ferguson. Did it overrule that deci­
sion, or establish any principle which makes it clear that 
the “ separate but equal”  doctrine of Plessy v. Ferguson 
may no longer be applied to authorize the provision by a 
state of separate but equal recreational facilities? If it 
did, this court must follow the Supreme Court rather than 
the Court of Appeals for the Fourth Circuit. On the other 
hand, if Brown v. Board of Education, aside from its obvi­
ous effect in the field of education, merely shows which way 
the wind is blowing, and foretells the ultimate and perhaps 
imminent elimination of the ‘ ‘ separate but equal ’ ’ doctrine 
in recreation, transportation and other fields besides edu­
cation, this court is still bound by the decision of the Fourth 
Circuit in Boyer v. Garrett.

It is therefore necessary to analyze the opinion in 
Brown v. Board of Education and to try to determine, with 
such additional light as may be thrown on the matter by 
other decisions of the Supreme Court, whether Brown v. 
Board of Education was intended to wipe out the “ sepa­
rate but equal”  doctrine entirely.

The opinion in Brown v. Board of Education discussed 
the history of the Fourteenth Amendment with respect to 
segregated schools; observed that in the first cases in the 
Supreme Court construing the Fourteenth Amendment the 
Court interpreted it as proscribing all state imposed dis­
crimination against the Negro race; and noted the appear­
ance of the “ separate but equal doctrine”  in Plessy v. 
Ferguson and the subsequent history of the doctrine in the 
Supreme Court. The Court stated that its decision could 
not turn on merely tangible factors, but that the Court



51a

must look to the effect of segregation itself on public edu­
cation. The Court noted a number of factors which show 
that education is perhaps the most important function of 
state and local governments. Reference will be made to 
those factors later in this opinion. The Court stated that 
the question presented was: “ Does segregation of children 
in public schools solely on the basis of race, even though 
the physical facilities and other ‘ tangible’ factors may be 
equal, deprive the children of the minority group of equal 
educational opportunities?”  (347 U. S. 493). Answering 
that question in the affirmative, the court said:

“ To separate them from others of similar age 
and qualifications solely because of their race gen­
erates a feeling of inferiority as to their status in 
the community that may affect their hearts and 
minds in a way unlikely ever to be undone. The 
effect of this separation on their educational oppor­
tunities was well stated by a finding in the Kansas 
case by a court which nevertheless felt compelled 
to rule against the Negro plaintiffs:

“  ‘ Segregation of white and colored children in 
public schools has a detrimental effect upon the col­
ored children. The impact is greater when it has 
the sanction of the laAv; for the policy of separating 
the races is usually interpreted as denoting the in­
feriority of the Negro group. A sense of inferiority 
affects the motivation of a child to learn. Segrega­
tion with the sanction of law, therefore, has a ten­
dency to retard the educational and mental devel­
opment of Neg*ro children and to deprive them of 
some of the benefits they would receive in a racially 
integrated school system.’

“ Whatever may have been the extent of psycho­
logical knowledge at the time of Plessy v. Ferguson,

Opinion of Thomsen, I). J.



52a

this finding is amply supported by modern author­
ity. Any language in Plessy v. Ferguson contrary 
to this finding is rejected. We conclude that in the 
field of public education the doctrine of ‘ separate but 
equal’ has no place. Separate educational facilities 
are inherently unequal. Therefore, we hold that 
the plaintiffs and other similarly situated for whom 
the actions have been brought are, by reason of the 
segregation complained of, deprived of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment. This disposition makes unnecessary 
any discussion whether such segregation also vio­
lates the Due Process Clause of the Fourteenth 
Amendment.”  347 U. S. at 494, 495.

What “ language in Plessy v. Ferguson”  was the Su­
preme Court rejecting as contrary to “ this finding” , i. e., 
the finding in the Kansas case quoted by the Supreme 
Court in the foregoing extract from its opinion?

The heart of Plessy v.. Ferguson lies in the following 
paragraph, which was quoted by Judge Chesnut as the basis 
for his decision in Boyer v. Garrett:

“ The object of the amendment was undoubtedly 
to enforce the absolute equality of the two races 
before the law, but in the nature of things it could 
not have been intended to abolish distinctions based 
upon color, or to enforce social, as distinguished 
from political equality, or a commingling of the two 
races upon terms unsatisfactory to either. Laws 
permitting, and even requiring, their separation in 
places where they are liable to be brought into con­
tact do not necessarily imply the inferiority of either 
race to the other, and have been generally, if not 
universally, recognized as within the competency 
of the state legislatures in the exercise of their

Opinion of Thomsen, D. J.



53a

police power. The most common instance of this 
is connected with the establishment of separate 
schools for white and colored children, which has 
been held to be a valid exercise of the legislative 
power even by courts of States where the political 
rights of the colored race have been longest and 
most earnestly enforced.”  163 U. S. at 544.

It is clear that Brown v. Board of Education overruled 
the implied approval of segregation in the field of educa­
tion contained in the foregoing quotation from Plessy v. 
Ferguson. It appears also that the Supreme Court now 
disagrees with the general statement in Plessy v. Ferguson 
that “ laws permitting, and even requiring, their separa­
tion in places where they are liable to be brought into con­
tact do not necessarily imply the inferiority of either race 
to the other.”  The question of what matters fall within 
the field of “ social equality”  has never been clear. Brown 
v. Board of Education indicates that certain claimed rights 
which may have been heretofore regarded as social mat­
ters should now be considered civil rights entitled to con­
stitutional protection. But has the “ separate but equal”  
doctrine been completely overruled ? May it still be applied 
in the field of transportation? May it still be applied in 
the field of recreation? Brown v. Board of Education did 
not expressly overrule all of Plessy v. Ferguson nor say 
that the ‘ ‘ separate but equal ’ ’ doctrine may not be applied 
in the fields of transportation or recreation. This court 
must consider the force and extent of the implications of 
the decision in Brown v, Board of Education.

Counsel for plaintiffs in the cases at bar have noted 
that the psychological and sociological authorities cited by 
the Supreme Court in Brown v. Board of Education deal 
with all fields of segregation and not alone with segrega­
tion in education. It is true that the authorities cited 
would have supported a broader conclusion than the con-

Opinion of Thomsen, D. J.



54a

elusion stated by the Court. The narrowness of the actual 
decision may have been due to tbe policy of tbe Supreme 
Court to decide constitutional questions only when neces­
sary to tbe disposition of' the case at hand, and to draw 
such decisions as narrowly as possible. Sweatt v. Painter, 
339 U. S. 629, 631; Rescue Army v. Municipal Court, 331 
U. S. 549, and cases cited therein. On the other hand it 
may be that the decision was worded as it was because 
the Supreme Court did not intend to rule that the “ sepa­
rate but equal”  doctrine can no longer be applied in fields 
other than education.

Let us see what light is thrown on the matter by deci­
sions of the Supreme Court in cases decided after Brown 
v. Board of Education. On May 24, 1954, the Supreme 
Court refused certiorari in a number of cases involving 
rights of Negroes. Only one of those cases dealt with 
recreation, namely, Beal v. Holcombe (5 Cir.), 193 F. 2d 
384. In that case a municipal corporation had excluded 
Negroes from three golf courses, located in parks set aside 
for white people. The municipality provided no golf 
courses for Negroes. The Court of Appeals for the Fifth 
Circuit held that this action violated the equal protection 
clause of the Fourteenth Amendment, stating that it was 
in full accord with the reasons given and the results reached 
in Law v. Mayer and City Council (D. C. Md. 1948), 78 F. 
Supp. 346, which was based upon the “ separate but equal”  
doctrine.

On the same day the Supreme Court entered an order 
in three cases in which rights of Negroes had been denied 
below. The Court said, per curiam: “ The petitions for 
writ of certiorari are granted. The judgments are vacated 
and the cases are remanded for consideration in the light 
of the segregation cases decided May 17, 1954, Brown v. 
Board of Education, etc., and conditions that now prevail.”  
347 U. S. 971. Two of these cases involved education and

Opinion of Thomsen, D. J.



55a

are clearly controlled by Brown v. Board of Education, 
The third case, Muir v. Louisville Park Theatrical Associa­
tion, involved the equality of the recreational facilities 
afforded Negroes and white persons by the City of Louis­
ville, and the exclusion of Negroes from an amphitheatre 
for theatrical productions located in a city park reserved 
for white people. The trial court found that the failure 
to provide for Negroes facilities for golf and fishing, which 
were provided for whites, was a violation of the Fourteenth 
Amendment. But trial court also held that the city vio­
lated no rights of the plaintiff by leasing the amphitheatre 
to a non-profit organization which excluded Negroes from 
the performances which it sponsored unless the city denied 
equal opportunities to Negro organizations to lease the am­
phitheatre (W. D. Ky. 1951), 102 F. Supp. 525. The appeal 
involved only the second point, and the Court of Appeals 
for the Sixth Circuit affirmed the decision of the District 
Court, 202 F. 2d 275. The phrase “ conditions that now 
prevail”  in the per curiam order of the Supreme Court in 
the Muir case probably refers to the fact that the lease in­
volved in that case had expired and therefore the case 
may have become moot. Counsel in the cases at bar sug­
gested no other significant meaning for the phrase “ condi­
tions that now prevail.”

What light does Brown v. Board of Education throw 
on the proper decision of the Muir case? The real question 
in that case was whether the facility was public or private. 
If it was a public facility, plaintiffs were clearly entitled 
to win on the state of the law before Brown v. Board of 
Education.

The order of May 24, 1954 in the Muir ease had a pre­
cedent in Bice v. Arnold, 340 U. S. 848. In that case the 
City of Miami operated a public golf course, permitting 
Negroes to play one day a week and whites to play on 
other days. The Supreme Court of Florida approved this

Opinion of Thomsen, I). J.



56a

action, Bice v. Arnold, 45 So. 2d, 195. The Supreme Court 
of the United States entered the following per curiam deci­
sion:

ilRice v. Arnold, Superintendent of Miami 
Springs Country Club. On petition for writ of certi­
orari to the Supreme Court of Florida. Per Curiam: 
The petition for writ of certiorari is granted. The 
judgment is vacated and the cause is remanded to 
the Supreme Court of Florida for reconsideration 
in the light of subsequent decisions of this Court in 
Sweatt v. Painter, 339 U. S. 629, and McLaurin v. 
Oklahoma State Regents, 339 U. S. 637.”

On remand, the Supreme Court of Florida said: “ We 
should announce and adhere to our considered judgment as 
to the meaning of the Constitution and its application to a 
particular factual situation so long as it is supported by 
earlier decisions and is not in conflict with more recent 
holdings either directly or by necessary inference.”  It 
found that the Sweatt and McLaurin cases were not con­
trolling in the field of recreation, but vacated its former 
judgment and again affirmed the decision of the Circuit 
Court, 54 So. 2d 114, including among the grounds for 
affirmance this time certain procedural matters, which 
caused the Supreme Court to refuse certiorari, 342 U. S. 
946.

It is clear that the Supreme Court felt in 1950 that its 
decisions in Sweatt v. Painter and McLaurin v. Oklahoma 
State Regents, and feels now that its decision in Brown v. 
Board of Education and Bolling v. Sharpe, 347 U. S. 497, 
throw some light on the proper decision of recreation cases. 
But the Supreme Court has not held that the “ separate 
but equal”  doctrine may no longer be applied in the field 
of recreation; it has left the matter for the lower courts to 
determine “ in the light o f”  its recent decisions.

Opinion of Thomsen, D. J.



57a

This brings us to a consideration of Bolling v. Sharpe, 
the other segregation case decided on May 17, 1954. In 
that case, which involved segregation in the public schools 
of the District of Columbia, the Court said:

“ Classification based solely upon race must be 
scrutinized with particular care, since they are con­
trary to our traditions and hence constitutionally 
suspect. As long ago as 1896, this Court declared 
the principle ‘ that the Constitution of the United 
States, in its present form, forbids, so far as civil 
and political rights are concerned, discrimination by 
the General Government, or by the States, against 
any citizen because of his race.’

*  #  *

“ Liberty under law extends to the full range of 
conduct which the individual is free to pursue, and 
it cannot be restricted except for a proper govern­
mental objective. Segregation in public education 
is not reasonably relative to any proper govern­
mental objective, and thus it imposes on Negro chil­
dren of the District of Columbia a burden that con­
stitutes an arbitrary deprivation of their liberty in 
violation of the Due Process Clause.

“ In view of our decision that the Constitution 
prohibits the States from maintaining racially seg­
regated public schools, it would be unthinkable that 
the same Constitution would impose a lesser duty 
on the Federal Government.”  347 U. S. at 499, 500.

Koramatsu v. United States, 323 U. S. 214, 216, cited in 
Bolling v. Sharpe, involved the exclusion of persons of 
Japanese ancestry from a military area. The Court said:

“ All legal restrictions which curtail the civil 
rights of a single racial group are immediately sus­

Opinion of Thomsen, D. J.



58a

pect. This is not to say that all such restrictions 
are unconstitutional. It is to say that the Courts 
must subject them to the most rigid scrutiny. Press­
ing public necessity may sometimes justify the exis­
tence of such restrictions; racial antagonism never 
can.”  323 U. S. at 216.

Plaintiffs in the cases at bar contend that any classi­
fication or segregation by a state on the basis of race is 
prohibited by the Fourteenth Amendment unless (1) it is 
justified by some proper governmental objective, (2) the 
regulation in question is a reasonable one to achieve that 
objective, and (3) the separate facilities are substantially 
equal, inherently as well as physically, or the field of gov­
ernmental activity in which the classification or segrega­
tion is made is so unimportant that no substantial rights 
under the Fourteenth Amendment are involved. Let us 
apply these tests to the regulations involved in these cases.

(1) What are the objectives sought to be attained by 
the regulations, and are they proper governmental objec­
tives ?

The first objective cited by defendants was the one 
approved by the Court of Appeals of Maryland in Durkee 
v. Murphy, quoted above, namely: “ to avoid any conflict 
which might arise from racial antipathies” , which the 
Court found to he “ a common need to be faced in the 
regulation of public facilities in Maryland.”  181 Md at 265.

Plaintiffs in the case at bar argue that this is not a 
sufficient objective to justify segregation in any field, and 
that only an objective as strong as the preservation of the 
republic in time of war is sufficient. Plaintiffs cite Bu­
chanan v. Warley, 245 U. S. 60, in support of this conten­
tion. In that case the Court held that a statute which 
limited the right of a property owner to transfer or convey 
his property to a person of another race was, as an un­

Opinion of Thomsen, D. J.



59a

reasonable discrimination, a denial of due process of law. 
The Court did not hold that the promotion of the public 
peace by preventing race conflicts was not a proper gov­
ernmental objective, but did hold that desirable as such an 
objective may be, it cannot be accomplished by laws or 
ordinances which deny rights created or protected by the 
Federal Constitution.

In each case the importance of the objective and the 
extent of the alleged deprivation or damage must be con­
sidered. It may well be that only an objective as strong as 
the preservation of the republic will support such a clear 
deprivation of liberty as was involved in Koromatsu v. 
United States or such a clear deprivation of property as 
was involved in Buchanan v. Warley. But it does not fol­
low that the prevention of civil disturbances is not a suffi­
cient objective to support separate but equal bathing and 
swimming facilities. Buchancm v. Warley was decided in 
1917, and thereafter the Supreme Court continued to per­
mit the states to supply or require separate but equal 
facilities in many different fields.

In Bolling v. Sharpe the Court held that segregation in 
public education is not reasonably related to any proper 
governmental objective. The Court did not say what gov­
ernmental objective was sought to be attained by the regu­
lation involved in that case, nor why the objective was 
not a proper one, nor why segregation in education was 
not reasonably related to the objective if it was a proper 
one. The bare statement in Bolling v. Sharpe throws no 
light on the question as it is presented in cases involving 
only bathing and swimming facilities. Certainly neither 
Brown v. Board of Education nor Bolling v. Sharpe holds, 
or clearly implies, that the objectives sought to be attained 
by the State and the City in the cases at bar are not proper 
governmental objectives. Whether the regulations com­
plained of are reasonably related to those objectives,

Opinion of Thomsen, D. J.



60a

whether they deny any rights created or protected by the 
Federal Constitution, and whether the separate facilities 
provided are “ inherently”  as well as physically equal, will 
be considered in (2) and (3) below.

The second objective cited by defendants in the cases 
at bar was “ the greatest good of the greatest number” , 
of Negroes as well as of whites. At the present stage of 
social development in the State of Maryland, most (but not 
all) Negroes are more relaxed and feel more at home among 
members of their own race than in a mixed group of 
Negroes and whites; the same is true of whites. I have 
never heard this statement denied, and it was not denied 
by counsel for plaintiffs at the hearing in this case. The 
fact embodied in the statement is deplored by substantially 
all intelligent Negroes in Maryland, and by some whites. 
It is quite possible that the ending of segregation in public 
education will change this pattern swiftly or slowly. But 
the fact that at this time most Negroes are more relaxed 
and feel more at home in their own group means that most 
Negroes will get more recreation from bathing and swim­
ming with other Negroes than in mixed groups. The 
provision of facilities which will provide the greatest 
amount of recreation for most members of each group is 
not an unreasonable objective, though it cannot be pursued 
in a manner which deprives Negroes or others of their 
constitutional rights. Whatever constitutional rights plain­
tiffs may have are personal and must be enforced. That 
aspect of the problem will be discussed under (3) below. 
We are dealing here only with the objectives which the 
State may properly seek to attain.

Neither the Supreme Court nor the Fourth Circuit has 
held that the objectives sought to be attained by the regula­
tions in these cases are not proper governmental objec­
tives sufficient to justify the segregation of the races at 
public beaches, bath houses and swimming pools, provided 
the regulations are reasonable and the facilities inherently

Opinion of Thomsen, D. J.



61a

as well as physically equal. Boyer v. Garrett is still the 
law of this circuit and of this district on the question of 
the propriety of the first objective discussed above.

(2) Are the regulations reasonable? The degree of 
racial feeling or prejudice in this State at this time is 
probably higher with respect to bathing, swimming and 
dancing than with any other interpersonal relations except 
direct sexual relations. See Gunner Myrdal, An American 
Dilemma, pp. 606, 608 et seq., cited by the Supreme Court 
in Brown v. Board of Education. The State Board of 
Forestry and Parks has recognized this fact, because the 
segregated bath houses and beaches at Sandy Point in­
volved in case No. 5965 are the only segregated facilities 
under control of that Board. The other facilities at Sandy 
Point State Park and at other places under the jurisdic­
tion of that Board (none of which have bathing facilities) 
are completely unsegregated. The State of Maryland and 
its citizens have steadily broadened the permissible and 
customary fields of interracial activities. Counsel for 
plaintiffs, at the oral argument of these cases, denied that 
the statement in Durkee v. Murphy that “ separation of 
the races is normal treatment in this state”  is still true. 
He cited, among others, the following facts: The last 
Jim Crow transportation law in Maryland was repealed 
in 1951. The Johns Hopkins University, Loyola College 
and a number of other private educational institutions 
admitted Negro students before the decision in Brown v. 
Board of Education. Less than three weeks after the 
opinion in that case was published the Board of School Com­
missioners of Baltimore City voted to abolish all segrega­
tion in the Baltimore City Schools effective September, 
1954. The University of Maryland recently admitted 
Negroes to courses where they had previously been denied 
admission. Many new fields of private and public em­
ployment have been opened to Negroes as the result of

Opinion of Thomsen, D. J.



62a

efforts of the Interracial Commission and other civic groups. 
The Junior Bar Association is now interracial. Even 
though the City had sustained its right to segregate the 
races on public golf courses and tennis courts, the Depart­
ment of Recreation and Parks of the City of Baltimore 
agreed, in July, 1951, to permit interracial play at all 
times on all municipal golf courses, and set aside one or 
more tennis courts in four public parks for interracial play. 
At the same time the Board made available for inter­
racial competition a number of baseball diamonds, soft 
ball diamonds, football fields, cricket fields and facilities 
for track and field sports. Interracial participation in the 
supervised programs at six playgrounds was permitted. 
The Board has approved additional areas for interracial 
activities since 1951.

Since the hearing in these cases the Housing Authority 
of Baltimore City has eliminated segregation at its thirteen 
low rent housing projects, and the University of Maryland 
has announced that it will admit Negroes in all of its 
schools.

In the face of such a record a federal judge should be 
slow to find the objectives of the State or City improper 
or the judgment of the defendant boards unreasonable, 
although he should not hesitate to strike down any dis­
crimination.

The regulations providing for segregation in the Balti­
more City swimming pools and at Fort Smallwood and 
Sandy Point are supported by the decision of the Court of 
Appeals of Maryland in Durkee v. Murphy. Similar 
regulations in less sensitive fields have been approved in 
the past by this Court and by the Fourth Circuit. Law v. 
Mayor and City Council; Boyer v. Garrett.

In the schools the children are supervised by trained 
and sympathetic teachers, committed to lead their students 
to a proper adjustment to the new conditions. The bath-

Opinion of Thomsen, D. J.



63a

ing and swimming facilities are for all ages, and are 
practically unsupervised, except by young life guards.

It is quite possible that the end of segregation in educa­
tion will weaken racial feeling to the point where it will 
no longer be appropriate to continue segregation in these 
facilities; but at this time I cannot say that the regula­
tions are unreasonable.

(3) It has been stipulated in the Sandy Point and Fort 
Smallwood cases that the facilities in question are phy­
sically equal at this time. No such stipulation has been 
made in the case involving the swimming pools. In that 
case the allegation of inequality was denied by defend­
ants, and it has been stipulated that the only question to 
be argued at the recent hearing was the broad question 
of the right of the City to segregate the races in public 
swimming pools, and that any other question raised by 
the pleadings be reserved for argument at some future 
hearing, if necessary. For the purposes of the decision 
on the motions for judgment on the pleadings, therefore, 
all of the facilities will be considered physically equal.

Are they also “ inherently”  equal, or does the very 
fact of segregation render them “ inherently”  unequal? 
Are the rights involved of sufficient importance to amount 
to a denial of liberty or of equal protection of the laws 
within the meaning of the Fourteenth Amendment? These 
questions must be answered by applying to the facts of these 
cases appropriate criteria or tests, as the Supreme Court 
did in Brown v. Board of Education.

In Brown v. Board of Education the Supreme Court 
emphasized the importance of education in modern 
American life, and said that it was perhaps the most 
important function of state and local governments.

Although the field of public recreation is not so im­
portant a field as public education, modern urban life has 
made the provision of various types of public recreational

Opinion of Thomsen, D. J.



64a

facilities for adults as well as for children an important 
function of state and local governments. The opportunities 
for free private recreation in large city and nowhere near 
so great as in small towns and rural areas. Public recrea­
tion is especially important for persons in the lower 
economic brackets.

The first factor cited by the Supreme Court in Brown 
v. Board of Education to illustrate the importance of pub­
lic education was the compulsory character of the school 
attendance laws. The opposite is true of recreation, which 
is by its very nature voluntary. This difference does not 
mean that recreation is not a sufficiently important field 
of government activity to give rise to rights under the 
Fourteenth Amendment; but it should be considered in 
determining whether separate recreational facilities are 
inherently equal, and will be discussed below.

Let us now examine the factors which caused the 
Supreme Court to find, in Brown v. Board of Education, 
that “ separate educational facilities are inherently un­
equal” , and see whether they apply with equal force in the 
cases at bar, or at least with sufficient force to require this 
Court to find that separate bathing and swimming facilities 
which are physically equal, are nonetheless “ inherently”  
unequal.

In determining that separate school facilities are in­
herently unequal the Supreme Court in Brown v. Board 
of Education based its decision primarily on its finding 
that segregation in grade and high schools causes psycho­
logical damages which deprives the Negro children of 
equal educational opportunities. The Supreme Court said:

“ To separate them”  (the antecedent of “ them”  was 
“ children in grade and high schools” ) “ solely because of 
their race generates a feeling of inferiority as to their 
status in the community which may affect their hearts and 
minds in a way unlikely ever to be undone.”

Opinion of Thomsen, D. J.



65a

“  ‘ Segregation of white and colored children in 
public schools has a detrimental effect upon the 
colored children. The impact is greater when it has 
the sanction of the law; for the policy of separating 
the races is usually interpreted as denoting the 
inferiority of the Negro group. A sense of inferi­
ority affects the motivation of a child to learn. 
Segregation with the sanction of law, therefore, has 
a tendency to retard the educational and mental 
development of Negro children and to deprive them 
of some of the benefits they would receive in a 
racially integrated school system.’ ”  347 U. S. at 
494.

Some of these statements might apply to segregation 
in recreation, although, as noted above, the Supreme Court 
has refrained from deciding or even clearly indicating the 
extent of their application in fields other than education. 
Certainly they apply with greatly diminished force, if at 
all, in the narrow field of public bathing and swimming- 
facilities. The fact that separate bathing and swimming 
facilities are provided does not affect the motivation of 
either children or adults to bathe or swim or play. Segre­
gation in this narrow field has little if any tendency to 
retard the educational or mental or any other development 
of Negro children and adults nor to deprive them of any 
of the benefits they would receive in a racially integrated 
system of bathing and swimming facilities, except social 
integration with white people.

The various types of recreational facilities differ among 
themselves in many ways—with respect to their educa­
tional and cultural values, with respect to the amount and 
kind of supervision supplied, with respect to the age 
groups they cater to, and with respect to the opportunity 
they afford for horseplay and the release of normal (or

Opinion of Thomsen, D. J.



66a

abnormal) animal spirits. We are dealing here only with 
swimming and bathing, which are less like education than 
many other types of recreation.

Plaintiffs’ brief in the cases at bar quotes Butler, Intro­
duction to Community Recreation, New York, 1949, p. 4, 
as follows: “ . . .  it is generally agreed that all recreation 
activity has certain basic characteristics. One is that the 
person engages in it because he desires and chooses to do 
so, without compulsion of any type other than an urge 
from within . . . Another characteristic is that the activity 
brings immediate and direct satisfaction to the individual” . 
From this quotation plaintiffs’ brief draws the conclusion: 
“ By this definition segregation in recreation introduces a 
matter of compulsion which impairs its very nature.”  It 
seems to me that this argument cuts both ways. The 
natural thing in Maryland at this time—whether at pri­
vate or public beaches or pools—is for Negroes to desire 
and choose to swim with Negroes and whites with whites, 
and for the proprietors of the facilities—whether public or 
private—to provide separate bathhouses, beaches and pools 
for the two races. An injunction prohibiting segregation 
would itself contain an element of compulsion which would 
reduce the recreational value of the facilities for many 
Negroes as well as whites. It is true that some Negroes 
and some whites—including the plaintiffs in these cases— 
would prefer to swim together. But the Constitution does 
not require the state to adopt a policy which will afford 
less recreation for the majority of both Negroes and whites 
to satisfy the desires of a few Negroes and a few whites, 
unless they can show that the state is denying them equal 
treatment or some other constitutional right.

What is involved here is not a weighing of the respec­
tive advantages furnished to the two groups. Cf. Corbin 
v. County School Board of Pulaski County (4th Cir.) 177 
F. 2d 924, 926; Carter v. School Board of Alexandria,

Opinion of Thomsen, D. J.



67a

County, Va. (4th Cir.), 182 F. 2d 531, 535, and cases cited 
therein. It is stipulated that the facilities are physically 
equal, and unless the mere fact of segregation renders them 
inherently unequal the State and City are according the 
same or equivalent treatment to persons of different races 
similarly situated.

Nor do we have here any such denial of recreational or 
other facilities as was involved in Beal v. Holcombe, Rice 
v. Arnold, or McCabe v. Atchison, etc. Ry. Co., 235 U. S. 
151 and other transportation cases. The fact that the 
State and the City have provided bathing and swimming 
facilities on a segregated basis does not mean that the 
State and the City have not made the opportunity for such 
recreation available to all on equal terms.

Finally, the plaintiffs make the broad argument that 
separate facilities are unequal simply because they are 
separate. They say that any and all segregation required 
or sanctioned by a state is “ contrary to our traditions,”  is 
degrading to Negroes, restricts their liberty, and makes 
the separate facilities inherently unequal.

It may be that at some time in the near or distant future 
the Supreme Court will seek to destroy the whole pattern 
of segregation and adopt the position that the States may 
no longer provide or require segregated facilities in any 
field. But it has not done so yet. The decisions in Brown 
v. Board of Education and Bolling v. Sharpe were limited 
to the field of education. See Holmes v. City of Atlanta 
(D. C. N. D. Ga. July 8, 1954) — -  F. Supp.------ .

Although there are statements in both opinions which 
would have supported broader conclusions, the Supreme 
Court, in Brown v. Board of Education said “ We conclude 
that in the field of education the doctrine of ‘ separate but 
equal’ has no place. Separate educational facilities are 
inherently unequal” . The conclusion in Bolling v. Sharpe 
was stated as follows: “ Segregation in public education

Opinion of Thomsen, D. J.



68a

is not reasonably related to any proper governmental ob­
jective, and thus it imposes on Negro children of the Dis­
trict of Columbia a burden that constitutes an arbitrary 
deprivation of their liberty in violation of the Due Process 
Clause” . The Court did not find that any and all segrega­
tion required or sanctioned by a state arbitrarily deprives 
Negroes of liberty or that all separate facilities are inher­
ently unequal.

In McLaurin v. Oklahoma State Regents the Supreme 
Court struck down “ restrictions imposed by the state which 
prohibit the intellectual commingling of student” , not social 
commingling or commingling generally. And the per curiam 
opinions in the two recreation cases, Rice v. Arnold and 
Muir v. Louisville Park Theatrical Association did not 
state that separate recreational facilities are unconstitu­
tional, but remanded the cases “ for reconsideration in the 
light o f”  the decisions involving education.

In the light of all the facts and decisions discussed 
above, I find that the facilities at Sandy Point and Fort 
Smallwood are “ inherently”  as well as physically equal. 
Whether the swimming pool facilities provided by the City 
for Negroes are equal to those provided for whites can 
only be determined after a full consideration of all relevant 
facts and of the legal points raised in such cases as Draper 
v. City of St. Louis (E. D. Mo. 1950), 92 F. Supp. 546, and 
in Hyman, Segregation and the Fourteenth Amendment, 
4 Vand. L. R. 555, at 564 (1951).

Plaintiffs’ motions for judgments on the pleadings are 
denied.

Opinion of Thomsen, D. J.



69a

Motion for Final Judgment

On May 29, 1954 plaintiffs filed a motion for Judgment 
on the Pleadings in this case; on July 27, 1954 after a 
hearing the motion for Judgment on the Pleadings was 
denied. Plaintiffs elect to stand upon their motion for 
Judgment on the Pleadings and have no further evidence 
to produce. There being no further issue in the case, 
plaintiffs, therefore move that this Honorable Court enter 
final judgment so that an appeal may be taken.

/ s /  L inwood G-. K oger, Jr., 
Linwood G. Koger, Jr.,

/ s /  Jack Greenberg,
Jack Greenberg,

/ s /  T ucker E. Dearing,
Tucker R. Dearing,

Attorneys for the Plaintiffs.

Order

Upon the aforegoing Motion it is hereby A djudged, 
Ordered and Decreed that the denial of the motion for a 
Judgment on the Pleadings in the above entitled case is 
hereby made final, and it is so ordered that the complaint 
be and it is hereby dismissed with costs.

Date: 25th day of Aug. 1954.

/ s /  R oszel C. T h o m sen ,
Judge.



70a

Motion for Final Judgment

On May 29, 1954 plaintiffs filed a motion for Judgment 
on the Pleadings in this case; on July 27, 1954 after a hear­
ing the motion for Judgment on the Pleadings was denied. 
Plaintiffs elect to stand upon their motion for Judgment 
on the Pleadings and have no further evidence to produce. 
There being no further issue in the case, plaintiffs, there­
fore move that this Honorable Court enter final judgment 
so that an appeal may be taken.

/ s /  L inwood G. K oger, Jr., 
Linwood G. Koger, Jr.,

/ s /  Jack Greenberg,
Jack Greenberg,

/ s /  T ucker R. Hearing,
Tucker R. Dearing,
Attorneys for the Plaintiff's.

Order

Upon the aforegoing Motion it is hereby adjudged, 
ordered and decreed that the denial of the motion for a 
Judgment on the Pleadings in the above entitled case is 
hereby made final, and it is ordered that the complaint be 
and it is hereby dismissed, with costs.

Dated: 25th day of Aug., 1954.

/ s /  R oszel C. T h o m sen ,
Judge.



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