Kankakee County Housing Authority v. Laural Spurlock Brief and Argument for Appellant

    No. 33045

i n  THE

Supreme Court of Illinois
J a n uary  T e r m , A. D. 1954.

KANKAKEE COUNTY HOUSING AU-"j 
THORITY, a Municipal Corporation,

Appellee,

Appeal from the 
Circuit Court of 

Kankakee County.

VS. >

LAURA SPURLOCK,
Appellant. ,,

Honorable 
C. D. Henry, 

Judge Presiding.

BRIEF AND ARGUMENT FOR APPELLANT.

M oore, M in g  & L e ig h t o n ,
123 West Madison Street, 
Chicago 2, Illinois, 

Attorneys for Appellant.

C h r is t o p h e r  C. W im b is h , 
G eorge N. L e ig h t o n ,

Of Counsel.

The Scheffer Press, Inc.—ANdover 3-6850

Oral Argument Requested



IN THE
S U P R E M E  C O U R T  OF I L L I N O I S  

J a n uary  T e r m ,, A. D. 1954.

KANKAKEE COUNTY H O U S I N G  A Appeal from the
AUTHORITY, a Municipal Corpora- Circuit Court of
tio n , Kankakee County.

Appellee, L ------
VS. Honorable

LAURA SPURLOCK, C. D. Henry,
Appellant. _ Judge Presiding.

BRIEF AND ARGUMENT FOR APPELLANT.

STATEMENT OF THE CASE.
Nature of the Action.

This is an Eminent Domain proceeding by which the 
Appellee, Kankakee County Housing Authority, a Munic­
ipal Corporation, invoked powers vested in it by Illinois 
law, Chap. 67%, Sec. 9 and Ch. 47, Secs. 1-16, 111. Rev. 
Stat. 1951.

Nature of the Pleadings.
The action was commenced by a Petition for Condemna­

tion by which Appellee sought to acquire by eminent do­
main land belonging to Appellant and 10 other owners 
of real estate situated in Kankakee County (Abst. 1-14). 
The petition to condemn contained 12 Counts and in it 
petitioner alleged that by virtue of “ An Act in Relation 
to Housing Authorities,” approved March 19, 1934, Chap. 
67% 111. Rev. Stat. (1951) it is empowered to take for 
public use the land described in the petition. Petitioner 
alleged that it sought “ * * * to acquire said land herein-



after described for the purpose of constructing thereon a 
housing project for public use which is a public work * * *” 
(Abst. 1) The separate counts of the petition to condemn 
realleged the same facts against the other parcels described.

Appellant and the other owners filed a motion captioned 
“ Motion to Controvert the Petitioner’s Eight to Condemn 
and to Strike and Dismiss the f’etition’ ’ (Abst. 14-32). 
This motion to strike and dismiss was directed against 
each count of the petition. Appellant and the owners by 
their motion questioned the right of petitioner to con­
demn the land in question and denied that the petitioner 
had filed a petition sufficient in law in that the petitioner 
had failed to set forth “ the purpose for which said prop­
erty is sought to be taken or damaged” (Abst. 22). The 
appellant and the owners put at issue the right of peti­
tioner to condemn the land involved by alleging that the 
petitioner was proceeding under supposed authority of the 
laws of the State of Illinois and was seeking State judicial 
action through the exercise of delegated eminent domain 
powers to acquire appellant’s land in order to construct 
thereon” * * * 40 housing units for a certain Ethnic Race 
commonly known as “ Negroes” or colored people. Appel­
lant and the land owners said that the housing project, for 
which use petitioner intends to acquire the real estate 
described in the petition, was not for use by the public, 
but would be used by the Ethnic group commonly known 
as ‘Negroes’ * * *” (Abst. 24-25).

Appellant, and the other owners, alleged in the motion 
that the use to which petitioner was going to put the land 
described in the petition was not a public use, because it 
was to erect, establish and maintain a race segregated 
housing project contrary to the public policy of the State 
of Illinois and in direct violation of the laws of the State 
of Illinois. Appellant then cited Chapter 38, Sec. 128(k),



111. Rev. Stat. (1951) and alleged that the use to which 
appellant’s land would be put after condemnation by the 
petitioner would be a direct violation of said statute. Ap­
pellant in the motion then cited Article II, Sec. 2 of the 
Constitution of the State of Illinois and cited, in haec verba, 
Title 8, U.S.C.A., Sec. 41, Sec. 42 and Sec. 43, and Appel­
lant further cited and relied upon the 14th Amendment 
to the Constitution of the United States and put at issue 
in said motion the constitutional validity of the acts of peti­
tioner in the condemnation proceeding in attempting to 
acquire land upon which would be constructed in the State 
of Illinois a race segregated housing project (Abst. 24-25).

The motion to dismiss further alleged that in connection 
with, and as a part of, the 40-unit public housing project 
for Negroes to be built upon the land of appellant, and 
the other 10 owners, the petitioner had acquired vacant 
land upon which petitioner would construct 80 housing units 
for white persons.

Appellant and the other 10 owners further alleged in 
their motion that petitioner had submitted to the Public 
Housing Administration of the Federal Government con­
tract on application for an annual contribution under 
which petitioner would attain allocation of federal funds 
with which to build and maintain the race segregated pub­
lic housing projects as announced and planned by peti­
tioner, putting at issue the constitutional right of the 
petitioner to invoke the judicial power of the State of 
Illinois in accomplishing these agreements and purposes. 
The Appellant and the other land owners asserted that 
the acts and conduct of the petitioner as described and al­
leged in the motion to dismiss were violative of the rights 
of Appellant and the other land owners protected and 
guaranteed by the due process clause of the 14th Amend­
ment to the Constitution of the United States and of the

—  3 —



—  4 —

federal statutes set forth in the motion, and were in viola­
tion of the protection afforded to Appellant and the other 
land owners by Article II, Section 2 of the Constitution 
of the State of Illinois and in violation of the privileges 
granted and the protection guaranteed by Chapter 38, 
Section 128(k), 111. Rev. Stat. (1951).

Leading Facts.
The Court set the motion to dismiss for hearing. Evi­

dence was introduced showing that the Appellee was or­
ganized as a housing authority under the provisions of 
Chapter 67%, 111. Rev. Stat. (1945). It conducted housing 
surveys in Kankakee, Illinois, and determined that the 
community needed a public housing project. The decision, 
however, included the determination that the public hous­
ing project was to consist of two separate installations: 
one, consisting of 40 units, was to be occupied by Negroes 
(Abst. 35, 36, 39) on land owned by Appellant, a Negro, 
and the 10 other Negro owners of parcels in Hardebeck’s 
Subdivision, Kankakee County (Abst. 34; See Ex. 216A- 
216B in Petitioner’s Exhibit 10 and Defendant’s Exhibits 
1 and 2, Abst. 39-43); the other, consisting of 80 units, was 
to be occupied by white persons ( Abst. 34; See Ex. 216A 
& 216B in Petitioner’s Exhibit 10 and Defendant’s Ex­
hibits 1 and 2, Abst. 39-43). The project to be occupied 
by white persons was to be constructed on vacant land 
(Abst. 39-43). The project to be occupied by Negroes 
was to be constructed on land subject of the condemna­
tion petition (Abst. 39-43).

In the course of its proceedings and deliberations Ap­
pellee administratively determined to exercise its delegated 
powers of eminent domain as to the Appellant’s land and 
the land belonging to the other 10 Negro owners of land 
in Kankakee County and in Hardebeck’s Subdivision,



Thereafter Appellee made applications for an annual con­
tributions contract under which it would receive federal 
funds. The applications were made to the Chicago Office 
of the Public Housing Administration under provisions of 
Title III, 42 U.S.C., Sec. 14101 a) (Abst. 39-43). Approval 
of the Chicago Field Office, Public Housing Administration, 
was given on July 10, 1952. In its application to the fed­
eral agency two separate files were “ tendered” contain­
ing separate data for the white and non-white projects 
(Abst. 39-43).

The motion to dismiss the petition to condemn Appel­
lant’s land for use in constructing the project for Negroes 
(Abst. 14-32) was then filed on the grounds already stated. 
On May 22, 1953 the Court denied the motion to dismiss 
stating that “ * * * the court having considered the evi­
dence produced and the law applicable thereto, it is ordered 
by the court that the motion to dismiss be and the same 
is hereby denied and all objections overruled * * *” (Abst. 
46).

The Court then ruled that a jury trial will be had on 
Appellant’s parcel only, Count I of the petition to condemn 
(Abst. 47). After the jury was selected, but before any 
evidence was heard, Appellant filed a motion to discharge 
the jury for the reason that it had come to her attention 
that Negroes were excluded from the jury panel (Abst. 
47-51). This motion was heard (Abst. 52). Testimony of 
the following witnesses were introduced in evidence to sup­
port the allegations of the motion:

Appellant testified that during the 28 years of residence 
in Kankakee County she had never seen or heard of a 
Negro serving on the jury (Abst. 52). Hlizabeth Luckey 
testified that she had lived in Kankakee, Illinois since 1902 
and during that time she learned that one Negro had been

—  5 —



—  6 —

called on the grand jury and two on the petit jury (Abst. 
54). Rev. John T. Frazier testified that he had lived in 
Kankakee, Illinois since January, 1950 and had been in 
the County Court at least 12 times a year and in the Cir­
cuit Court at least 6 times a year and he had never seen 
a Negro on the jury (Abst. 54-55).

Orville Warren, Clerk of the County Court testified and 
was shown defendants’ Exhibits 1 and 2 of June 30, 1953 
purporting to be correspondence between him and the 
Honorable Corneal Davis, a State Representative. The 
letters, dated March 1, 1953 and April 30, 1953, concerned 
a petition to the County Commissioners of Kankakee 
County “ * * * protesting the fact that no Negroes are in­
cluded in the jury call and requesting that they be asked 
to serve on an equal basis with all persons in the County 
of Kankakee * * *” (Abst. 55-56). Orville Warren ad­
mitted having received the letter and the petition (Abst.
56) . These two letters were offered in evidence (Abst. 
56-57) by Appellant. The court denied admission of the 
letters, giving as its reason the fact that the jury panel 
had been made in September of the previous year (Abst.
57) . The witness, Warren, then testified that in the six 
years he had been Clerk of the County Court two Negroes 
had served on the jury. This question was then asked the 
witness: “ Q. Now, Mr. Warren in these juries that you 
saw, these various panels that you personally saw, did 
you see any members of the Negro race on these panels? 
A. Well I don’t know, I don’t remember specifically.” 
(Abst. 58-59)

Frank Burns testified that he had lived in Kankakee 
County 63 years and had been a member of the bar in 
Kankakee County since 1902 (Abst. 60). That there were 
approximately 5000 Negroes in Kankakee County (Abst. 
59). During that period of time he had never seen a 
Negro on the jury (Abst. 59).



At the close of this evidence the court denied Appellant’s 
motion to discharge the jury because Negroes were ex­
cluded from the jury panel (Abst. 61). The court then 
ordered that Appellant’s parcel of real estate be submitted 
to a jury for trial (Abst. 61). The jury brought in its 
verdict (Abst. 61) and the trial court entered judgment on 
the verdict (Abst. 64). Appellant then filed her notice of 
appeal, presented and filed the report of Proceedings and 
perfected review in this Court (Abst. 62).

Decisions and Rulings.
1. The trial court denied the motion to controvert the 

right to condemn and to strike and dismiss the petition 
by its order of May 22, 1953 as follows:

“ * * * Now on this day this case having been under 
advisement relevant to objections, motion, etc. and 
the court having considered the evidence produced and 
the law applicable thereto, it is ordered by the court 
that the motion to dismiss be and the same is hereby 
denied and all objections overruled * * (Abst. 46)

2. The trial court denied Appellant’s motion to dis­
charge the jury because Negroes were excluded from the 
jury panel (Abst. 47, 61).

The trial court denied admission in evidence of Appel­
lant’s Exhibits 1 and 2 of 6/30/53 (Abst. 56-57).

The trial court denied Appellant’s motion for a new 
trial (Abst. 64).

The trial court entered judgment in favor of Appellee 
(Abst. 64).



Errors Relied Upon for Reversal,
1. The trial court erred in denying the motion to con­

trovert petitioner’s right to condemn and to strike and 
dismiss the petition.

2. The trial court erred in ruling that the petition to 
condemn was sufficient in law.

-3. The trial court erred in sustaining the petition to 
condemn appellant’s land after proof that the purpose for 
which said land would be used was unlawful. The trial 
court erred in denying the motion to dismiss and in pro­
ceeding with the condemnation after all the evidence in­
troduced showed that Appellee had abused the state dele­
gated sovereign power of eminent domain and was in­
voking state judicial action in a manner that deprived 
Appellant of the rights secured by state and federal laws 
and protected by state and federal constitutions.

4. The trial court erred in overruling the objections 
of Appellant that the state court proceedings were state 
action evoked by petitioner to effectuate a purpose that 
deprived Appellant of rights protected by Article II, 
Section 2 of the Constitution of the State of Illinois, and 
secured and protected by the 14th Amendment to the Con­
stitution of the United States.

5. The trial court erred in inflicting upon Appellant 
state court action, thus enabling petitioner to effectuate a 
purpose violative of the State of Illinois and deprivation 
of rights secured to Appellant by Article II, Section 2 of 
the Constitution of the State of Illinois and the 14th 
Amendment to the Constitution of the United States.

—  8 —



—  9 —

6. The trial court erred in granting relief to petitioner 
in the condemnation proceeding thus invoking state action 
that denied Appellant the equal protection of the laws as 
secured and protected by the 14th Amendment to the Con­
stitution of the United States.

7. The trial court erred in denying Appellant’s motion 
to discharge the jury because Negroes were excluded from 
the jury panel, thus denying to Appellant due process of 
law and the equal protection of the laws, as secured by 
the 14th Amendment to the Constitution of the United 
States.

8. The trial court erred in denying admission in evi­
dence of Appellant’s Exhibits 1 and 2 of 6/30/53.

9. The trial court erred in overruling the motion for 
a new trial and entering judgment in favor of Appellee.



—  10 —

PROPOSITIONS OF LAW AND AUTHORITIES.

I .

State delegated eminent domain powers do not authoirze 
appellee to take appellant’s land by condemnation for 
the construction of a race-segregated public housing 
project, because the operation, maintenance and use of 
public property, on the basis of race distinctions, will 
violate Illinois laws.

Gillette v. Aurora By. Co., 228 111. 261.
Harvey v. Aurora <$> Geneva Ry. Co., 174 111. 295.
Bell v. Mattoon Water Works Co., 245 111. 544.
Bierbaum v. Smith, 317 111. 147.
Pickett v. Kuchan, 323 111. 138.
White v. Pasfield, 212 111. App. 73.
Baylies v. Curry, 128 111. 287.
Chicago <& N. W. Ry. Co. v. Williams, 55 111. 185.
Chase v. Stephenson, 71 111. 383.
People ex rel. Longress v. Board of Education of 

the City of Quincy, 101 111. 308.
People ex rel. Bibb v. City of Alton, 193 111. 309.
Peck v. Cooper, 112 111. 192.
Dean v. Chicago <& N. W. Ry. Co., 183 111. App. 317.
Denny v. Dorr, 333 111. App. 581.
People ex rel. Touhy v. City of Chicago, et al., 394 

111. 471.
II.

Even if the use of eminent domain powers by appellee to 
acquire appellant’s land for a race-segregated public 
housing project is authorized by Illinois law, the exer­
cise of such power, and the judgment of the trial court 
are State actions which deprived appellant of her prop­
erty without due process of law and denied appellant 
equal protection of the laws, in violation of rights se­
cured to appellant by the 14th Amendment to the Consti­
tution of the United States.

Department of Public Works & Buildings v. Kirk- 
endall,...... Ill......... , 112 N. E. 2d 611.



—  11 —

Department of Public Works & Buildings v. Chi­
cago Title $  Trust Company, et al., 408 111. 41. 

Chicago, B. <& Q. B. Co. v. City of Chicago, 116 
U. S. 226, 17 S. Ct. 581.

Gillette v. Aurora By. Co., 228 111. 261.
Board of Education v. City of Chicago, 402 111. 291. 
Missouri Pacific By. Co. v. State of Nebraska, 164 

U. S. 403, 17 S. Ct. 130:
Shelley v. Kraemer, 334 U. S. 1, 68 8. Ct. 836. 
Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16. 
Harmon v. Tyler, 273 U. S. 668, 47 S. Ct. 471. 
Bichmond v. Deans, 281 U. S. 704, 50 S. Ct. 407.

III.
Exclusion of members of the negro race from the jury 

panel, as shown in this case, was a denial of equal pro­
tection of the laws in violation of appellant’s rights under 
the Fourteenth Amendment to the Federal Constitution.

Brown v. Allen, 344 II. S. 443, 73 S. Ct. 397.
Avery v. State of Georgia, 345 U. S. 559, 73 S. Ct.

891.



— 12 —

ARGUMENT,

I .

State delegated eminent domain powers do not authorize 
appellee to take appellant’s land by condemnation for 
the construction of a race-segregated public housing 
project, because the operation, maintenance and use of 
public property, on the basis of race distinctions, will 
violate Illinois laws.
Illinois law of Eminent Domain rests on two funda­

mental constitutional conditions: First, that the nse to 
which private property is to be devoted shall be a public 
one; the second, that just compensation shall be made to 
the owner for the property taken. Gillette v. Aurora Ry- 
Co., 228 111. 261, 275. In this case, no question is raised 
concerning the constitutional requirement of just compen­
sation. The controversy revolves around the use which 
Appellee, Kankakee County Housing Authority, intends 
for the land taken from Appellant by these condemnation 
proceedings.

The Appellee in its petition for condemnation (Abst. 1- 
14) alleged that “* * # by virtue of ‘An Act in Relation 
to Housing Authorities’ * * * it is empowered to take for 
public use (sic) condemnation proceedings, without the 
consent of the owners, the land * * described in the 
petition and belonging to Appellant. The statute upon 
which Appellee depends for its authority to condemn Ap­
pellant’s land is Chapter 67%, 111. Rev. Stat. 1951. Ref­
erence to that statute shows that Section 8 confers upon 
Appellee, a housing authority, powers to investigate hous­
ing needs in the area of its operation and to cooperate with 
the regional or State planning agency within its area of



—  13 -

operation. That section empowers Appellee to operate 
projects and to construct, reconstruct, improve, alter or 
repair projects and act as agent of the Federal Govern­
ment in the construction or management of a project. 
Appellee is to function in accordance with the section as 
an agency of the city, village or town or act as an agent 
of the government relating to housing and the purposes 
of the Act. Appellee has power under the Act to lease 
or rent housing or other accommodations and to acquire 
interest in any firm, corporation or instrumentality of 
the State or Federal government. The Act makes Appellee 
“ * # * a municipal corporation and shall constitute a body 
both corporate and politic exercising a public and essen­
tial governmental function * * *” Section 9 of the Act 
authorized Appellee to acquire property, and if necessary 
by exercise of Eminent Domain in accordance with the 
Eminent Domain Act, Chapter 47, Secs. 1-16, 111. Rev. Stat. 
1951. That section further provides that the Appellee 
submit to the State housing board and obtain its approval 
of plans for the development and redevelopment of ac­
quired property. Appellee, as a housing authority, is 
authorized to hold or use property acquired by it for uses 
authorized by the Act. Section 14 of the Act provides for 
approval of the State Housing Board for the projects prior 
to the acquisition of title by Appellee to any real prop­
erty.

The record before this Court presents little controversy 
about the facts. Mr. Armen R. Blanke, Chairman of the 
Kankakee County Housing Authority, though somewhat 
evasive on cross-examination, finally admitted that the use 
for which Appellant’s land was being taken was to build 
two separate projects, one of 80 units to be occupied by 
white people; the other of 40 units to be occupied by 
Negroes (Abst. 35, 36, 39). In its application for federal 
aid under the Act, Appellee submitted two separate de­



—  14 —

velopment programs. These are defendant’s Exhibits 1 
and 2 introduced in evidence on May 6, 1953 (Abst. 39-43). 
Defendant’s Exhibit 1 reveals that Appellee proposes to 
construct on the land being taken from Appellant the 
project for Negro occupancy. Throughout this Exhibit 
are interspersed references to race and race distinction 
uses to which the 40 unit project would be put. The con­
clusion is inescapable that Appellee has administratively 
determined that Appellant’s land is to be used for the 
construction of a project devoted to race segregation. 
This conclusion is supported by defendant’s Exhibit 2, 
introduced in evidence on May 6, 1953 showing that Appel­
lee proposes to use vacant land for the construction of the 
80-unit project for occupancy by white persons who will 
be segregated from the Negroes housed in the 40 unit 
project (Abst. 42).

Appellant’s motion to dismiss the petition put in issue 
the validity of the condemnation proceeding by which 
Appellant’s land was being subjected to Eminent Domain 
proceedings for a race segregatory and race discrimina­
tory use. Our Eminent Domain laws have evolved certain 
clear-cut principles which we submit are controlling in this 
ease. First, Appellee when it “ * * * seeks to exercise the 
power it must be able to point to a statute conferring it 
in express terms # * *” Gillette v. Aurora By. Co., 228 
111. 261, at 275. This Court has had occasion to say 
“ * * * The taking of private property against the will of 
the owner is in derogation of the property rights of the 
citizen, and the authority must not only be conferred by 
statute in express language, but the use for which the 
property is taken must be clearly within the object desig­
nated by the statute. The statute must be strictly con­
strued in favor of the property owner and doubts must 
be solved adversely to the claim of right to exercise the



power. Unless both, the letter and the spirit of the statute 
confer the power it cannot be exercised, and if the words 
of the grant are doubtful they are to be taken most strongly 
against the grantee * # *” Gillette v, Aurora By. Co., 228 
111. 261, at 275. Harvey v. Aurora <& Geneva By. Co., 174 
111. 295, at 305.

Abuse of the right of Eminent Domain will be prevented 
by a court upon proper showing. Bell v. Mattoon Water 
Works Co., 245 111. 544, at 547. While it is true “ * * *The 
question under what conditions the power of eminent do­
main may be exercised is purely legislative, but it is for 
the court to decide, as a preliminary question, when called 
upon, whether the statutory conditions authorizing the 
exercise of such power exist, and if such statutory condi­
tions are not found to exist in the specific case, to dis­
miss the petition for condemnation * * *” Bierbaum v. 
Smith, 317 111. 147, at 149.

Nothing beyond the allegations of the petition was pre­
sented by Appellee to sustain its claim;—that it had the 
right to exercise Eminent Domain and acquire Appellant’s 
land (Abst. 1-2). Nothing in the statute authorizing 
Appellee to exercise the powers of Eminent Domain ex­
pressly or impliedly grants to Appellee the power to take 
Appellant’s land for a race segregated housing project. 
We submit, therefore, that the absence of express or im­
plied powers to take Appellant’s land for a race segre­
gated public housing project is fatal to the condemnation 
proceeding in this case. This issue was precisely raised 
by Appellant in the motion to dismiss (Abst. 14). The 
evidence in this record and the legal basis for the conten­
tion sustain the position of Appellant.

There is a clear reason why the statute creating Appel­
lee does not authorize it to acquire land and property to be

—  15 —



16 —

used on the basis of race distinctions. That reason is found 
in the statutes of this State that expressly prohibit race 
segregation and race discrimination in all the relationships 
upon which legislative action has been taken. Our re­
search has led us to 14 different and distinct statutory 
provisions of this State, all expressly condemning, and 
specifically prohibiting race segregation and race discrim­
ination. We list them in this order:

1. Chapter 14, Section 9, 111. Eev. Stat. 1951, creating 
a division for enforcement of Civil Eights.

2. Chapter 29, Sections 24a-24g, prohibiting race segre­
gation and race discrimination in employment under public 
contracts.

3. Chapter 43, Section 133, prohibiting race segregation 
and race discrimination in taverns.

4. Chapter 23, Section 46, prohibiting race segregation 
and race discrimination in public assistance.

5. Chapter 32, Section 510(9) prohibiting race segre­
gation and race discrimination in employment by housing 
corporations.

6. Chapter 48%, Section 36(3) prohibiting race segre­
gation and race discrimination in private engineering 
schools.

7. Chapter 38, Sections 125-128n, prohibiting race seg­
regation and race discriminations in inns, restaurants, eat­
ing houses, hotels, soda fountains, saloons, barber shops, 
bath rooms, theaters, skating rinks, concerts, cafes, bicycle 
rinks, elevators, ice cream, parlors or rooms, railroads, 
omnibuses, stages, streetcars, boats, funeral hearses and 
public conveyances on land and water, and all other places 
of public accommodation and amusement.



17 —

8. Chapter 38, Section 128k, prohibiting denial or re­
fusal to any person on account of race, color or religion 
equal enjoyment of public property.

9. Chapter 38, Section 471 prohibiting anti-race ex­
hibitions.

10. Chapter 32, Section 503a, prohibiting race segre­
gation and race discrimination in world-fair concessions.

11. Chapter 105, Section 168.1, prohibiting race segre­
gation and race discrimination in state parks.

12. Chapter 122 Sections 6-37, 18-14, prohibiting race 
segregation and race discrimination in public schools.

13. Chapter 127, Section 214, establishing a Human 
Relations Commission.

14. Chapter 127, Section 60, prohibiting race segre­
gation and race discrimination in private schools.

These enumerated statutes have been construed by this 
court on numerous occasions. They have been held to be 
constitutional and valid. Pickett v. Kuchan, 323 111. 138. 
Our courts of review have sustained the right of recovery 
for violation of the protections conferred and guaranteed 
by these statutes. White v. Pas field, 212 111. App. 73; 
Baylies v. Curry, 128 111. 287; Chicago d  N.W. By. Co. v. 
Williams, 55 111. 185; Chase v. Stevenson, 71 111. 383; People 
ex rel. Congress v. Board of Education of the City of 
Quincy, 101 111. 308; People ex rel. Bibb v. City of Alton, 
193 111. 309; Peck v. Cooper, 112 111. 192; Dean v. Chicago & 
N.W. By. Co., 183 111. App. 317; Denny v. Dorr, 333 111. App. 
581.

The vice of Appellee’s position need not be exposed only 
by reference to the race discriminatory use to which Appel­
lee will put the land condemned. For the purpose of the in­



18

slant ease we consider Appellant’s contention legally un­
assailable when wTe point out that as a matter of law the use 
for which Appellant’s property is being condemned is not a 
public use. It is easily observed that the property will not 
be used for the public but rather for a class within a class; 
that is, Negro persons who will qualify for low rent housing 
in the public housing project for colored occupancy as 
planned by Appellee. Thus, not only is the public in gen­
eral excluded from the use intended for Appellant’s prop­
erty, but even within the class restricted there is the fur­
ther limitation that only those Negroes who qualify for low 
rent housing will be allowed to use the public housing 
project being constructed for Negro occupancy.

These facts being indisputable, they necessarily repre­
sent the question whether the use to which Appellant’s 
land will be put by Appellee is a public use as required by 
our Constitution. This court said in People ex rel. Touhy 
v. City of Chicago, et al, 394 111. 471 at 483-484: “ * * * In 
Bartee Tie Co. v. Jackson, 281 111. 452, in discussing this 
question, we said that to constitute a public use the use 
must concern the public as distinguished from an in­
dividual or a particular number of individuals. Public 
use requires that all persons must have an equal right to 
the use and that it must be in common upon the same terms, 
however few the number who avail themselves of i t ; that 
it shall be open to all people to the extent that its capacity 
may admit of such use. Such use cannot be confined to 
privileged persons and must be for all men or a class of 
men, and not for a special few * * * ”

This doctrine is decisive of the question raised by 
Appellant. We respectfully submit that Appellee has no 
eminent domain powers to condemn Appellant’s land for 
a race segregated housing project. The authority to take 
private property for a race segregated public housing



— 19 —

project cannot be implied because it will be a wide depar­
ture from well established public policy of this State. 
Clearly, the use to which Appellant’s land is to be put by 
Appellee is not a public one. It is a use to be limited to a 
class of low income earners, within a class determined by 
race. There is no authority in Illinois Eminent Domain 
Law for such taking of Appellant’s land.

II.
Even if the use of eminent domain powers by appellee to 

acquire appellant’s land for a race-segregated public 
housing project is authorized by Illinois law, the exer­
cise of such power, and the judgment of the trial court 
are state action which deprived appellant of her prop­
erty without due process of law and denied appellant 
equal protection of the laws, in violation of rights se­
cured to appellant by the 14th Amendment to the Consti­
tution of the United States.
In filing the petition to condemn Appellant’s land (Abst. 

1-14) Appellee exercised a delegated right of the sovereign 
State of Illinois. Department of Public Works d  Build­
ings v. Kirkendall, ......  Ill......... , 112 N. E. 2d 611; De­
partment of Public Works d  Buildings v. Chicago Title 
d  Trust Company, et al., 408 111. 41. Actions of the Ap­
pellee and the rulings and judgment of the trial court are 
State acts within the meaning of the 14th Amendment 
to the Constitution of the United States. “ * * * it must be 
observed that the prohibitions of the (14th) amendment 
refer to all the instrumentalities of the state,—to its 
legislative, executive, and judicial authorities,—and there­
fore whoever, by virtue of public position under a state 
government, deprives another of any right protected by 
that amendment against deprivation by the state, ‘violates 
the constitutional inhibition; and as he acts in the name 
and for the state, and is clothed with the state’s power,



—  20

his act is that of the state’ * * *” Chicago, B. £  Q. R. Co. 
v. City of Chicago, 166 U. S. 226, at 234, 17 S. Ct. 581, at 
583. In overruling Appellant’s motion to dismiss and 
entering judgment against Appellant, the trial court ruled 
adversely to all the federal and state constitutional rights 
asserted. Chicago, B. d  Q. R. Co. v. City of Chicago, 166 
TJ. S. 226, 17 S. Ct. 581.

The principal ground of constitutional protection ad­
vanced by Appellant in the trial court was that the Kan­
kakee County Housing Authority, Appellee, was exercis­
ing state power granted to it by Ch. 67%, 111. Rev. Stat. 
1951, and in so doing it was proceeding with condemna­
tion against Appellant and others, for the purpose of 
taking her land on which to build a public housing project 
for Negroes (Abst. 17-25). Appellant further asserted that 
the acts of Appellee under color of state law were arbi­
trary, capricious and discriminatory in that the acts of 
Appellee were based on decisions to proceed against her, 
a Negro, and to condemn her land on which to build a 
public housing project for Negroes. At the same time, 
however, Appellee had purchased vacant land on which 
to build a public housing project for white persons Abst. 
21-22). Thus, Appellant asserted two serious federal con­
stitutional objections to the condemnation proceeding: 
first, that the taking of Appellant’s land was not for a 
public purpose; second, that the state action was directed 
against her solely because of race distinctions. We turn 
now to the first constitutional objection.

The right of eminent domain is inherent in the sov­
ereign; but its exercise is subject to two constitutional 
conditions which we have already pointed to : first, the 
taking of private property under eminent domain powers 
must be for a public purpose; second, just compensation 
must be paid for the land taken. Gillette v. Aurora Ry.



21

Co., 228 111. 261, 275. We make no assault upon the award 
as contravening the constitutional requirement of just 
compensation—not because we deem it in conformance 
with the constitutional condition, but because we consider 
the infirmities of these proceedings such that the question 
need not be reached.

Appellee’s petition to condemn (Abst. 1-14) alleged only 
that # # Petitioner seeks to acquire said land herein­
after described for the purpose of constructing thereon 
a housing project for public use and which is a public 
work * * *” (Abst. 2). Appellant had the right to con­
test petitioner’s right to condemn, and she did so by 
motion to dismiss; and having done so, the burden was 
on Appellee to maintain its right by proper proof. Board 
of Education v. City of Chicago, 402 111. 291. “ * # * If the 
land owner traverses the allegations of the petition neces­
sary to confer jurisdiction, the court must determine their 
truth or falsity. The necessity will therefore exist for the 
petitioner to introduce such evidence as will, prima facie, 
at least, prove the traversed or disputed allegations of the 
petition * * *” Board of Education v. City of Chicago, 
402 111. 291, at 299.

Evidence introduced by Appellee itself showed that Ap­
pellant’s land was being taken for the construction of a 
public housing project for Negro occupancy (Abst. 33-39). 
The testimony of the only witness for Appellee proved 
that one of the factors considered by Appellee -was the 
concentration of Negro residences in the area where Ap­
pellant’s land was situated (Abst. 35). Appellee’s pur­
pose was to preserve the racial residential segregation 
pattern by the device of building the Negro housing 
project on Appellant’s land (Abst. 36). Evidence then 
introduced by Appellant removes all conjecture as to the 
purpose to which Appellant’s land will be put. Three ex-



22 —

Mbits (Abst. 33-34; 39-43) clearly show the race segregatory 
objectives of Appellee. They also show the discrimination 
exercised by Appellee in proceeding against Appellant 
solely because she was a Negro who owned land in an 
area into which Appellee decided to restrict Appellant and 
others of the Negro race (Abst, 35-36). The conclusion is 
inescapable that the purpose for which Appellant’s land 
was to be taken was not a public purpose.

It was not a public purpose because the use was to be 
restricted to a racial segment of the people. In Illinois, 
the public, as a political and social concept includes every­
body. To exclude everybody and devote property to a 
use limited to a racial segment—Negroes—, is to exclude 
the public, as we understand that word. In this sovereign 
State we can glance retrospectively into its history and 
with gratification say that racial dichotomies and racial 
classifications have never been accepted as a basis for 
grant or denial of public privileges. Yet, this is precisely 
the result for which Appellee sought Appellant’s land.

The condemnation proceeding to take Appellant’s land 
for a use not public, denies Appellant due process. In 
Missouri Pacific Ry. Co. v. State of Nebraska, 164 U. S. 
403, at 412, 17 S. Ct. 130, at 133, for example, a railroad 
company by mandamus, was directed within a stated time, 
to surrender a portion of its right of way for an elevator 
to be used by a group of farmers and others who had 
alleged they lacked elevator services which had been fur­
nished to others. The Supreme Court of the United States 
speaking by Mr. Justice G-ray, said: “ * * * The taking 
by a state of private property of one person or corpora­
tion, without the owner’s consent, for the private use of 
another, is not due process of law, and is a violation of 
the fourteenth article of amendment of the constitution of 
the United States * # *” In Chicago, B. & Q. R. Co. v.



23 —

City of Chicago, 166 U. S. 226, at 241,17 S. Ct. 581, at 586, 
Mr. Justice Harlan speaking for the Court and citing 
Cooley’s Edition of Story on Constitutional Limitations, 
said:

“ * * * ‘Due process of law requires—First, the leg­
islative act authorizing the appropriation, pointing 
out how it may be made and how the compensation 
shall be assessed; and, second, that the parties or of­
ficers proceeding to make the appropriation shall 
keep within the authority conferred, and observe every 
regulation which the act makes for the protection or 
in the interest of the property owner, except as he 
may see fit voluntarily to waive them * * *”

Taking Appellant’s land for what is in effect private 
use is not the only vice attendant upon the condemnation 
here involved. What the evidence indisputably shows is 
this:

Appellee, an agency of the State of Illinois (Abst. 1) 
made an administrative determination that Appellant’s 
land, and the land of other Negro owners not here on ap­
peal, would be condemned because it was desirable to 
build a public housing project for Negroes in the area 
where Appellant’s land was situated and already occu­
pied by Negroes (Abst. 35-36). As part of this deter­
mination, Appellee decided that it will construct an 
80 unit housing project for white persons on vacant land 
(Abst. 39-43). Defendant’s Exhibit 2 (Abst. 39-43) con­
tains an exhibit numbered 216B. This exhibit is an aerial 
photograph showing the vast expanse of the vacant land 
on which Appellee will construct the 80 unit project for 
White persons (Abst. 43). Thus, it will easily be seen 
that the only reason why Appellee elected to proceed with 
condemnation against Appellant is because of the racial 
characteristics of Appellant and the other land o'wners 
involved (Abst. 35-36). The aerial photograph of the vacant



- 24 -

land is paralleled by an aerial photograph in Defendant’s 
Exhibit 1 (Abst. 39-43) showing Appellant’s occupied land. 
These photographs speak silently but eloquently of the 
inherent discrimination and unfairness resting beneath 
Appellee’s administrative determinations.

We are constrained to say respectfully to this Honorable 
Court that race discriminations take many and sometimes 
subtle forms. The case at bar presents race discrimina­
tion in a form not easily detected. Under the guise of 
building a public housing project for 40 Negro families, 
Appellee is imposing discriminatory state action against 
Appellant. The public policy of this State when applied 
by this Honorable Court, we think will furnish adequate 
statutory and constitutional grounds for a reversal; but 
transcending State constitutional protections is the broad 
sweep of the 14th Amendment to the Constitution of the 
United States.

As a predicate for demonstrating the applicability of 
protection under the 14th Amendment to the Constitution 
of the United States, we refer to the record before the 
Court. Pointing again to Defendant’s Exhibits 1 and 
2 (Abst. 39-43) we call attention to the fact that Ap­
pellee instituted these condemnation proceedings in order 
to perform its part of an “ Annual Contributions Con­
tract” (Abst. 39-43), 42 U. S. C. A. Sec. 1410, with the 
Public Housing Administration, a federal agency. Under 
the provisions of Ch. 67%, 111. Rev. Stat. 1951, and 42 
U. S. C. A. Secs. 1401-1430, Appellee, as a State agency 
was under the duty to enter into contracts with the federal 
agency and with the City of Kankakee dealing with the 
construction, maintenance and operation of the racially 
segregated public housing projects. Attention is called 
again to Defendant’s Exhibit 1 (Abst. 39) which con­
tains a letter of transmittal from the Director of the



—  25

Chicago Field Office, Public Housing Administration ask­
ing Appellee to proceed with condemnation of Appellant’s 
land in accordance with the then approved annual con­
tributions contract with the federal agency (Abst. 39).

Condemnation of Appellant’s land, then, was not an 
isolated act of Appellee; it was part of a series of inter­
related agreements, covenants and undertakings which 
could be carried out only with the assistance of the Cir­
cuit Court of Kankakee County. It is clear, that but for 
the intervention of the state court, acting as it did on 
determinations of Appellee based on race, Appellant would 
be free to continue her enjoyment of her property without 
restraint and interference by Appellee. This interference, 
“* * * supported by the full panoply of state power * * *” 
is what the Supreme Court of the United States in The 
Restrictive Covenant Cases said cannot be invoked without 
violation of the equal protection clause of the 14th Amend­
ment to the Constitution of the United States. We re­
spectfully submit that careful study of the doctrine of 
Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 3 ALR 
2d 441 will reveal that it determines the issues at bar.

In Shelley v. Kraemer, one of the Covenant cases, thirty 
out of a total of thirty-nine owners of property in the 
city of St, Louis, Missouri signed a restrictive covenant 
to prevent occupancy of the affected realty to people of 
the Negro or Mongolian Race. The petitioners who were 
Negroes, purchased for a valuable consideration one of 
the parcels of real estate covered by the covenant. There­
after, in a suit brought by other signers of the covenant, 
the Supreme Court of Missouri held that the White prop­
erty owners were entitled to injunctive relief restraining 
Shelley from occupying his property, and to a decree di­
vesting title from him. On certiorari, Shelley contended 
that judicial enforcement of the restrictive agreements 
violated rights guaranteed him by the Fourteenth Amend­



— 26 —

ment to tlie Federal Constitution and Acts of Congress 
passed pursuant to the Amendment. Specifically, Shelley 
urged that he had been denied equal protection of the 
laws, deprived of property without due process of law, 
and was denied privileges and immunities of a citizen of 
the United States. Mr. Chief Justice Yinson, speaking for 
the Court, said: 334 U. S. 1, at 14, 68 S. Ct. 836, at 842:

“ * * * That the action of state courts and of judicial 
officers in their official capacities is to be regarded as 
action of the State within the meaning of the Four­
teenth Amendment, is a proposition which has long 
been established by decisions of this Court. That prin­
ciple was given expression in the earliest cases in­
volving the construction of the terms of the Fourteenth 
Amendment. Thus, in Virginia v. Rives, 100 U. S. 
313, 318 (1880), this Court stated: ‘It is doubtless 
true that a State may act through different agencies,— 
either by its legislative, its executive, or its judicial 
authorities; and the prohibitions of the amendment 
extend to all action of the State denying equal protec­
tion of the laws, whether it be action by one of these 
agencies or by another.’ In Ex parte Virginia, 100 
U. S. 339, 347 (1880), the Court observed: ‘A State 
acts by its legislative, its executive, or its judicial 
authorities. It can act in no way.’ In the Civil Rights 
Cases, 109 U. S. 3, 11, 17 (1883), this Court pointed 
out that the Amendment makes void ‘State action of 
every kind” which is inconsistent with the guaranties 
therein contained, and extends to manifestations of 
“ State authority in the shape of laws, customs, or 
judicial or executive proceedings.’ Language to like 
effect is employed no less than eighteen times during 
the course of that opinion * * *”

“ We have no doubt that there has been state action 
in these cases in the full and complete sense of the 
phrase. The undisputed facts disclose that petitioners 
were willing purchasers of properties upon which they 
desired to establish homes. The owners of the prop­



27 —

erties were willing sellers; and contracts of sale were 
accordingly consummated. It is clear that but for the 
active intervention of the state courts, supported by 
the full panoply of state power, petitioners would have 
been free to occupy the properties in question without 
restraint * * *” 334 U. S. 1 at 19, 68 S. Ct. 836 at 845.

“ We hold that in granting judicial enforcement of 
the restrictive agreements in these cases, the States 
have denied petitioners the equal protection of the laws 
and that, therefore, the action of the state courts can­
not stand. We have noted that freedom from dis­
crimination by the States in the enjoyment of property 
rights was among the basic objectives sought to be 
effectuated by the framers of the Fourteenth Amend­
ment. That such discrimination has occurred in these 
cases is clear. Because of the race or color of these 
petitioners they have been denied rights of ownership 
or occupancy enjoyed as a matter of course by other 
citizens of different race or color. The Fourteenth 
Amendment declares ‘that all persons, whether col­
ored or white, shall stand equal before the laws of 
the States, and, in regard to the colored race, for 
whose protection the amendment was primarily de­
signed, that no discrimination shall be made against 
them by law because of their color.’ ” 334 U. S. 1, at 
20-21, 68 S. Ct. 836, at 845-846.

In language which we respectfully submit expresses the 
position of Appellant at bar, Mr. Chief Justice Vinson 
said:

“* * * The historical context in which the Fourteenth 
Amendment became a part of the Constitution should 
not be forgotten. Whatever else the framers sought 
to achieve, it is clear that the matter of primary con­
cern was the establishment of equality in the enjoy- 
men of basic civil and political rights and the preser­
vation of those rights from discriminatory action on 
the part of the States based on considerations of race 
or color. Seventy-five years ago this Court announced 
that the provisions of the Amendment are to be con­



— 28

strued with this fundamental purpose in mind. Upon 
full consideration, we have concluded that in these 
cases the States have acted to deny petitioners the 
equal protection of the laws guaranteed by the Four­
teenth Amendment * * * ” 334 U. S. 1, at 23, 68 S. Ct. 
836, at 847.

Shelley v. Kraemer and the case at bar present applicable 
similarities at three important points: first, a race segre- 
gatory pattern is involved in the case at bar as was sought 
enforcement in Shelley; second, aid of the state through 
its judicial arm was sought and effectively invoked so that 
the action against Appellant was “ * * * supported by the 
full panoply of state power, * * *” as it was against 
Shelley; finally, the oppressive action of the State insti­
tuted by Appellee against Appellant was based on deter­
minations and distinctions of race and color as was the 
state action against Shelley. We respectfully submit that 
the broad scope of the 14th Amendment to the Federal 
Constitution will not allow such oppressive State action.

Finally, concluding our argument on the constitutional 
questions, we point to the fact that Appellee seeks to ac­
complish by this condemnation proceeding a result which 
the Supreme Court of the United States has consistently 
said neither the City of Kankakee nor the State of Illinois 
could achieve even by the exercise of police powers. If 
Appellee were allowed to take Appellant’s land and con­
tract a race segregated public housing project, it must 
be assumed that it will carry out its purpose once such a 
segregated project is built. Appellee then could admin­
istratively enforce race segregation in its area of opera­
tion. The City of Kankakee could not adopt an ordinance 
and enforce race segregation within its limits. This was 
the decision of the Supreme Court of the United States in 
Buchanan v. Worley, 245 U. S. 60, 38 S. Ct. 16, where the 
City of Louisville, Kentucky adopted a municipal ordi­



29 —

nance prohibiting any white or colored person from mov­
ing into and occupying as a residence or place of abode 
any house upon any block where a greater number of 
houses are occupied by persons of the opposite race. Bu­
chanan, a white man, accepted an offer from Warley, a 
colored man, by which Warley was to purchase Buchanan’s 
lot. Afterward, Warley, depending upon the municipal 
ordinance, refused to comply with the contract. Buchanan 
then filed a suit for specific performance which was denied 
on the ground that Warley could not occupy the property 
which Buchanan attempted to sell to him. On writ of 
error from the Supreme Court of the United States, after 
affirmance in the highest court of the state, it was held, 
that though Buchanan was a white man, he could raise 
the constitutional question concerning the validity of the 
municipal ordinance under the 14th Amendment. The

“ * * * We think this attempt td prevent the alienation 
of the property in question to a person of color was 
not a legitimate exercise of the police power of the 
state, and is in direct violation of the fundamental law 
enacted in the Fourteenth Amendment of the Consti­
tution preventing state interference with property 
rights except by due process of law * * *” Buchanan v. 
Warley, 245 U. S. 60, at 66, 38 S. Ct. 16, at 20.

The doctrine of Buchanan v. Warley has particular ap­
plication here because Buchanan, a white man was held 
to be in position to attack the constitutionality of a mu­
nicipal ordinance aimed at the segregation of Negroes. The 
court held that because Buchanan’s property rights were 
adversely affected by the ordinance, he could successfully 
make attacks upon its constitutionality.

Now applying that doctrine to the case at bar, we submit 
that Appellant, because her property is affected adversely 
by an administrative determination of Appellant, a munic­



—  30 —

ipal corporation, can put in issue the constitutionality of 
that administrative determination as if it were an ordi­
nance adopted by the City of Kankakee. In either case, 
whether it be an Ordinance of the City of Kankakee, or 
an administrative rule of Appellee, under the Buchanan 
case, she could successfully attack the unconstitutionality of 
such state action on her property rights. Harmon v. Tyler, 
273 U. S. 668, 47 S. Ct. 471; Richmond v. Deans, 281 U. S. 
704, 50 S. Ct. 407; Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 
836.

Therefore, either on the ground that the condemnation 
proceedings denied Appellant due process of law because 
the taking of her land was not for a public use, or because 
the action against her was State action that denied her 
equal protection of the laws in violation of the 14th Amend­
ment to the Constitution of the United States, we submit 
that the record at bar shows that the rulings and judgment 
of the trial court cannot be sustained because they violate 
and contravene basic constitutional guarantees.

III.
Exclusion of members of the negro race from the jury 

panel, as shown in this case, was a denial of equal pro­
tection of the laws in violation of appellant’s rights under 
the Fourteenth Amendment to the Federal Constitution.
The gamut of a jury trial is not without its unpleasant 

experiences. In this case Appellant, after the jury was 
selected, but before any evidence was heard, made a mo­
tion to discharge the jury for the reason that members of 
the Negro race were excluded from the jury panel (Abst. 
48-51). A hearing on this motion was granted by the trial 
court (Abst. 52). At this hearing Appellant introduced 
in evidence the testimony of four witnesses in addition to 
her own testimony. No evidence contradicting the testi­



—  31 —

mony or evidence thus presented was produced by Appel­
lee.

Appellant and two other witnesses testified that it was 
a well known fact in Kankakee County that Negroes could 
not serve on petit juries (Abst. 52). Orville Warren the 
Clerk of the County Court testified and admitted having 
received a letter from a State Representative presenting 
a Petition signed by Negro residents of Kankakee County 
asking the County Commissioners to call Negroes to serve 
on juries on an equal basis with other citizens (Abst. 56). 
Two exhibits consisting of letters concerning this petition 
were offered in evidence and refused by the trial court 
(Abst. 56-57). One witness, an attorney, testified that he 
had been a member of the Bar in Kankakee County since 
1902 and he had practiced law during that time in the 
county and had seen more than 300 juries, but had never 
seen a Negro on the jury in the County. This witness 
testified that there were approximately 5000 Negroes in 
Kankakee County (Abst. 59). Appellant in her motion, 
supported by affidavit, alleged that there were approx­
imately 2490 Negroes in the County. None of these allega­
tions, nor any of the evidence thus introduced by Appel­
lant, was either contradicted or refuted. The court denied 
the Motion (Abst. 60-61).

We submit that Appellant, within the time allowed by 
the circumstances shown in the record, made a prima facie 
showing of discrimination in the selection of the jury that 
was to hear her case. In Brown v. Allen, 344 TJ. S. 443, 
at 470-471, 73 S. Ct. 397, at 414, in an opinion by Mr. 
Justice Reed, the Supreme Court of the United States 
said:

“ * * * Discrimination against a race by barring or 
limiting citizens of that race from participation in 
jury service are odious to our thought and our Consti­
tution, This has long been accepted as the law * * *”



32 —

* * * Such discrimination is forbidden by statute 18 
U. S. C. Sec. 243, 18 U. S. C. A. Sec. 243, and bas been 
treated as a denial of equal protection under tbe Four­
teenth Amendment to an accused, of the race against 
which the discrimination is directed * * *”

In Avery v. State of Georgia, 345 U. S. 559, 73 S. Ct. 
891 the Supreme Court of the United States, in an opinion 
by Mr. Chief Justice Vinson, held that where defendant 
challenged the selection of the jury and charged that mem­
bers of his race had been discriminated against in the 
composition of the jury, and a prima facie case was made, 
a burden was put on the state to overcome such prima facie 
case. In the case at bar we respectfully urge this Honor­
able Court to consider the evidence introduced by Appel­
lant in view of the failure of Appellee to refute or contra­
dict any allegation or any of that evidence. The proof made 
raised a serious federal constitutional question concerning 
the fairness of the trial afforded Appellant. The two ex­
hibits offered in evidence by Appellant (Abst. 56) spoke 
louder than the testimony that supported the allegations 
made. It is very difficult to understand the reasoning of 
the trial court, but it appears that the learned judge ruled 
that because the jury panel was compiled in September, Ap­
pellant could not complain in June that there had been ex­
clusion of Negroes from the panel. It is obvious that Appel­
lant and the other Negroes in the county had no part in 
the forming of the jury panel whether it was constituted in 
September or in June. As Mr. Justice Frankfurter said in 
the Avery Case, “ * * * However that may be, * * * the 
stark resulting phenomenon here was that some how or 
other, * * *” no Negro got onto the panel of jurors from 
which Appellant’s jury was selected. Avery v. State of 
Georgia, 345 U. S. 559, at 564, 73 S. Ct. 891, at 894. The 
only rational explanation for the consistent absence of 
Negroes from juries in Kankakee County as testified to by



—  33

Appellant (Abst. 52), Mrs. Elizabeth Luckey (Abst. 53-54) 
Rev. John T. Frazer (Abst. 55-56), Mr. Orville Warren 
.(Abst. 56-59), and Mr. Frank Burns (Abst. 59) is that they 
were systematically excluded. This exclusion denied Ap­
pellant the guarantees afforded by the equal protection 
clause of the Fourteenth Amendment to the Constitution of 
the United States.

CONCLUSION.

From the foregoing Argument, supported by the author­
ities cited, we respectfully submit that the rulings and the 
judgment of the trial court be reversed, or in the alterna­
tive, that the same be reversed with directions from this 
Honorable Court, or in the further alternative, that this 
Honorable Court enter such order or orders as in its judg­
ment is meet and proper to grant Appellant relief in the 
premises.

Respectfully submitted,

M oore, M in g  & L e ig h t o n , 
Attorneys for Appellant.

C h r is t o p h e r  C . W im b is h  
G eorge N . L e ig h t o n  

Of Counsel