Christian v. Jemison Brief for Appellees

    Ik t h e

Mxntzb States (tort of Appeals
F oe th e  F if t h  C ircuit

No. 19120

J ack  C hristian , et al.,
Appellants,

T heodore J . J em ison , et al.,
Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

A. P. T ureaud

1821 Orleans Avenue 
New Orleans 16, La.

J ack  Greenberg 
Constance B aker M otley 
J ames M. N abrit, III 
D errick A. B ell

10 Columbus Circle 
New York 19, N. Y,

Attorneys for Appellees

JAM ES M. NAiBHilT, ill



SUBJECT INDEX

Statement of tlie Case......... ..............................................  1

A rgument  :

I. The Plea Of Ees Judicata And The Alternative 
Motions That The Case Be Remitted To State 
Courts And For A Jury Trial Were Properly 
Overruled And Denied By The Court Below .... 7

II. The Baton Rouge Bus Segregation Ordinance Is 
Plainly Invalid Under Settled Precedent And 
There Were No Genuine Issues Of Material

PAGE

Facts ......................................................................... 11

Co n c l u s io n ........................................................................... 14

T able op Cases C ited

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958)  .....12,13
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961)  .......  12
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) .................... ............... .......... ....... ................-  12
Bratley v. Nelson, 67 F. Supp. 272 (S. D. Fla. 1946) .... 10 
Browder v. City of Montgomery, 146 F. Supp. 127

(M. D. Ala. 1956) ...........................................................  12
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956),

aff’d. 352 U. S. 903 (1956) ............. ........... 7, 8, 9,10,11,12
Brown v. Board of Education, 347 U. S. 483 (1954) .....  7, 8
Brown v. Board of Education, 349 U. S. 294 (1955) ..... 7, 8

Douglas v. City of Jeannette, 319 U. S. 157, 163 ........... 10



XI

Fletcher v. Norfolk Newspapers, Inc., 239 F. 2d 169 
(4th Cir. 1956) .................................................................  13

Harrison v. NAACP, 360 IT. S. 185 ......... ......................... 9

Iselin v. C. W. Hunter Co., 173 F. 2d 388 (5th Cir. 1949) 7

Jemison v. City of Baton Rouge, No. 46,023, 19th Jud.
Dist. Ct. of La. (Jan. 20, 1954) ................................ . 6

Lawlor v. National Screen Services Corp., 349 IT. S.
322, 99 L. ed. 1122, 75 S. Ct. 865 (1955) ....................... 8

Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958), cert, 
den. 357 IT. S. 944 (1958) ....................................... 9,12,13

(Means Parish School Boaxvl v. Bush, 268 F. 2d 78, 80 
(5th Cir. 1959) ........    9

Richard v. Credit Suisse, 242 N. Y. 346, 152 N. E. 110 
(1926) ..............................................................................  14

Toomer v. Witsell, 334 U. S. 385, 392 n. 15 (1948) ....... 9

Williams v. Kolb, 79 IT. S. App. D. C. 253, 145 F. 2d 344 
(D. C. Cir. 1944) ............................................ ................  13

Other A uthorities Cited

1 Moore’s Federal Practice, Par. 0.401, p. 4018  ........... 8
5 Moore’s Federal Practice, Par. 38.24[1]  .................  12
6 Moore’s Federal Practice, Par. 56.04, pp. 2028 et seq. 14
28 United States Code, §1331....... ............... ..................... 2
28 United States Code, §1343 ........................................... 2

PAGE



Ill

PAGE

42 United States Code, §1981............................................ 2
42 United States Code, §1983 ............................................ 2

Emergency Ordinance, No. 251 of the City of Baton 
Rouge ..................................................... 2, 3,4, 5, 6, 7,12,13

L.S.A.-R.S. 45:194, 45:195, 45:196, which were repealed 
by Act No. 261, Louisiana Acts of 1958 .......... ............  2

Restatement, Judgments, §46, Comment b, §53, Com­
ment c ................... ..........................................................  8

Rule 56, Federal Rules of Civil Procedure................. . 13



In t h e

Wuxteb States (Emtrt of Appals
F ob th e  F ifth  Cikcuit 

No. 19120

J ack  Christian , et ol.,

-v.-
Appellants,

T heodore J . J em ison , et al.,
Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF LOUISIANA

BRIEF FOR APPELLEES

Statement of the Case

This action was filed February 4, 1957 in the United 
States District Court for the Eastern District of Louisiana 
by plaintiffs, Theodore J. Jemison, Edward \Y. Brown, 
Felton B. Hitchens, Dupuy H. Anderson, Curtis J. Gil­
liam and Louis J. Jones. The defendants in this action 
are numerous named individuals who hold offices as the 
Mayor-President of the City of Baton Rouge and Parish 
of East Baton Rouge, Louisiana, the members of the City- 
Parish councils of said city and parish, the city chief of 
police, the parish sheriff, and the manager of the Baton 
Rouge Bus Company, Inc. The last-mentioned corporation 
was also named as a defendant.

Jurisdiction of the trial court was invoked on alterna­
tive grounds, namely (1) “ federal question” jurisdiction



2

under 28 U. S. C. §1331, the matter involving questions 
under the Fourteenth Amendment to the Constitution of 
the United States and under 42 U. S. C. §1981; and (2) 
“ civil rights” jurisdiction under 28 U. S. C. §1343 as au­
thorized by 42 U. S. C. §1983 to enforce rights under the 
Fourteenth Amendment and 42 U. S. C. §1981. The Com­
plaint sought injunctive and declaratory relief, against 
several state statutes (which have now been repealed)1 and 
a city ordinance, i.e., Emergency Ordinance No. 251 of the 
City of Baton Rouge, which provides as follows:

Amending Title 10, Chapter 2, of the Baton Rouge 
City Code of 1951, by amending Section 118, “ Seating 
of Passengers,” so as to provide for the separation of 
races in the buses in the City of Baton Rouge; pro­
viding for the reservation of certain seats; making 
certain exceptions; and providing penalties for failure 
to comply therewith.

W hereas, on March 11, 1953, the City Council of 
the City of Baton Rouge adopted Ordinance No. 222, 
providing a method for seating passengers riding any 
buses for hire within the City of Baton Rouge; and,

W hebeas, by an opinion dated June 18, 1953, .the 
Office of the Attorney General held that such ordinance 
was invalid as being in conflict with the Louisiana,: 
Revised Statutes Title 45, Section 194 and 195; and,

W hereas, it is necessary that the Council now adopt 
a suitable ordinance regulating the seating of pas­
sengers on buses for hire within the City of Baton 
Rouge and an emergency, within the meaning of Sec­
tion 2.12 of the Plan of Government exists, requiring 
that such ordinance be adopted without the necessity

1 These statutes were L.S.A.-R.S. 45 :194, 45 :195, 45 :196, which 
were repealed by Act. No. 261, Louisiana Acts of 1958. Cf. Mor­
rison v. Davis, 252 F.2d 102 (5th Cir. 1958), cert. den. 357 U.S. 
944 (1958).



3

of a public hearing or introduction and a second read­
ing, as otherwise required by Section 2.12 of the Plan 
of Government:

Now, therefore, be it ordained by the City Council 
of the City of Baton Rouge that Title 10, Chapter 2, 
of the Baton Rouge City Code of 1951, be and the same 
is hereby amended by repealing the present Section 
118 thereof and re-enacting same so as to add thereto 
a section 118, which shall read as follows:

Section 118. Seating of Passengers.

(1) Separation of Races in Buses: Every transpor­
tation company, lessee, manager, receiver or owner 
thereof, operating passenger buses in the City of Bat­
on Rouge as a carrier of passengers for hire, shall 
require that all white passengers boarding their buses 
for transportation shall take seats from the forward 
or front end of the bus and that all Negro passengers 
boarding their buses for transportation shall take 
seats from the. back or rear end of the bus.

(2) Reservation of Seats: No white passenger shall 
occupy the long rear seat of the bus, which shall be re­
served for the sole and exclusive use of negro pas­
sengers. No negro passenger shall occupy the two 
front seats facing the aisle of the bus, but such seats 
shall be reserved for the sole and exclusive use of 
white passengers.

(3) No passengers of different races shall occupy 
the same seat.

(4) When there maybe or become vacant and avail­
able for occupancy any seat in the rear of a seat oc­
cupied by a Negro passenger or passengers, such 
negro passenger or passengers shall, when requested 
by the operator of the bus, remove to such rear seat;



4

and, likewise, when there may be or become vacant 
and available for occupancy any seat in front of any 
seat occupied by a white passenger or passengers, such 
white passenger or passengers shall, when requested 
by the operator of the bus, remove to such front seat.

(5) Authority of Bus Operator: The operator on 
all passenger buses in the City of Baton Rouge shall 
have authority to refuse any passenger further oc­
cupancy or use of any bus in the City of Baton Rouge 
unless such passenger shall comply with the provisions 
of this ordinance.

(6) Chartered and Special Buses: The provisions 
of this ordinance shall not apply to any chartered bus 
or special bus run strictly designated for the exclusive 
use of members of any race, but in all such cases, such 
bus or buses shall he plainly marked “ Charter” or 
“ Special.”

(7) Penalties: Any person, firm, corporation or as­
sociation of persons or a member thereof convicted of 
violating any provisions of this ordinance shall be 
fined not less than ten dollars ($10.00). nor more than 
one hundred dollars ($100.00), or imprisonment for 
not less than ten (10) days, nor more than sixty (60) 
days, or both, at the discretion of the Court for each 
offense.

(8) This ordinance, being an emergency ordinance, 
shall be effective upon adoption.

The verified complaint (R. 3-15), alleged, in summary, 
that plaintiffs were Negro citizens of the City of Baton 
Rouge, and Parish of East Baton Rouge, Louisiana, and 
that they used the public transportation system operated 
by the defendant bus company. The complaint alleged the 
identity of the various defendants as public officials, the



5

identity of the manager of the bus company, and that the 
company was engaged in carrying passengers for hire 
under a franchise issued by the City of Baton Rouge. It 
was further alleged that on December 28, 1956, plaintiffs 
met with the bus company manager and requested that they 
and other Negroes be permitted to use the company buses 
on a nonsegregated basis; that the manager informed them 
that the bus company would abide by the existing state 
laws and municipal ordinances; that on January 3, 1957 
plaintiffs met with the defendant Mayor-President of the 
City and Parish and members of the City-Parish councils 
again requesting the right to use the buses on a non­
segregated basis; and that these defendants “ told plain­
tiffs that the aforementioned statutes of the State of Louisi­
ana and ordinances of the City of Baton Rouge, Louisiana 
are valid and would be enforced by defendants until de­
clared unconstitutional, null and void by a court of com­
petent jurisdiction” (R. 11-12).

On March 27, 1957, in response to the complaint defen­
dants filed a motion to dismiss, a plea of res judicata, an 
alternative request that the case be remitted to the state 
courts, and a further alternative request for a jury trial 
(R. 16-21; 29-32). Following a hearing on October 14, 
1957, the court entered an order denying the various de­
fense motions on March 24, 1957 (R. 79). Thereafter no 
further proceedings were had until plaintiffs filed a motion 
for summary judgment on February 29, 1960 (R. 80). The 
defendants filed their Answer on October 12, 1960 (R. 84- 
92). The answer defended Ordinance No. 251 as a valid 
exercise of the police powers, generally admitted the iden­
tity of the various defendants, admitted that the two meet­
ings referred to in the complaint had occurred, but denied 
the allegations that plaintiffs were Negro residents of 
Baton Rouge who used the city buses, denied jurisdiction, 
and denied that the buses were being operated on a “ segre­



6

gated basis.” The answer acknowledged that the ordinance 
in suit was “ in effect.” In addition, a copy of a prior or­
dinance requiring separation of the races in buses was 
appended to the answer, which asserted that the “ only dif­
ference” between the two ordinances was that the current 
ordinance contains a provision which “ reserves the long 
rear seat on the bus for the exclusive use of those Negro 
passengers who wish to use it, and a reservation of the 
two short front seats for the exclusive use of those white 
patrons who wish to use them” (R. 90).

Defendants appended to their pleadings copies of the 
petition (R. 64-78), opinion (R. 32-50), and judgment (R. 
50-51) in a case decided on January 20, 1954 in the Louisi­
ana 19th Judicial District Court, captioned Jemison v. City 
of Baton Rouge, No. 46,023, which was relied upon to sup­
port the claim of res judicata in bar of the present action. 
This prior case was concluded in 1954, prior to the events 
of 1956 and 1957 which formed the basis for the present 
suit. The prior litigation was primarily concerned with a 
claim that Emergency Ordinance No. 251 was not authorized 
by various provisions of local law (see Petition R. 65-77). 
The validity of the ordinance under the Fourteenth Amend­
ment to the Constitution of the United States was not put 
in issue, and no Federal Constitutional issues were decided 
by the state court, on the ground that no specific consti­
tutional provisions had been invoked (R. 49). Only two 
of the plaintiffs in the instant case (Jemison and Hitchens) 
were parties to the prior proceeding and none of the de­
fendants in the present suit were parties to the prior case, 
the only defendant named in that case being the City of 
Baton Rouge (R. 64).

The plaintiffs’ motion for summary judgment was sub­
mitted to the Court on October 12, 1960 and considered 
again on March 31, 1961. A final Judgment in favor of



7

the plaintiffs was entered on April 5, 1961 (R. 97). The 
Court found that there were no genuine issues as to any 
material facts, and that the ordinance was plainly invalid 
under the Fourteenth Amendment and the federal civil 
rights acts. A judgment granting declaratory and injunc­
tive relief restraining enforcement of the ordinance was 
entered. Notice of Appeal was filed May 2, 1961.

ARGUMENT

I.

The plea of res judicata and the alternative motions 
that the case he remitted to state courts and for a jury 
trial were properly overruled and denied by the court 
below.

A. The prior litigation which is urged in bar of the 
present suit has been described above in the Statement of 
the Case. As indicated therein, the prior litigation in­
volved different parties, different issues and was con­
cluded in 1954, several years prior to the events complained 
of in the present action, namely, (1) the December 1956 
and January 1957 demands by plaintiffs for desegregation 
of the city buses, (2) the refusal of these demands by the 
defendants, (3) and the continuing operation of Emer­
gency Ordinance 251 in the years following. Brown v. 
Board of Education, 347 U. S. 483 (1954), 349 U. S. 294 
(1955), and Browder v. Gayle, 142 F. Supp. 707 (M. D. 
Ala. 1956), aff’d 352 U. S. 903 (1956).

It is familiar doctrine that res judicata precludes fur­
ther litigation of the same cause of action between the 
same parties, but does not bar litigation as to other causes 
of action. See Iselin v. C. IF. Hunter Co., 173 F. 2d 388



8 .

(5th Cir. 1949); 1 Moore’s Federal Practice, fjO.401, p. 
4018.

Lawlor v. National Screen Services Corporation, 349 
U. S. 322, is dispositive of the issue raised by appellants’ 
claim of res judicata. In that case the Court held at 349 
U. S. 322, 327-28:

That both suits involved “ essentially the same course 
of wrongful conduct” is not decisive. Such a course of 
conduct—for example, an abatable nuisance—may fre­
quently give rise to more than a single cause of action. 
And so it is here. The conduct presently complained 
of was all subsequent to the 1943 [prior] judgment.

The Court went on to observe that while a judgment is 
res judicata as to claims arising prior to its entry “ . . .  it 
cannot be given the effect of extinguishing claims which do 
not even then exist and which could not possibly have been 
sued upon in the previous case” (Id. at 349 U. S. 329). It 
was made clear that the rule of the Lawlor case was appli­
cable to proceedings in equity as well as to a damage claim; 
see note 16 at 349 U. S. 329, citing Restatement, Judgments, 
§46, Comment b ; §53, Comment c.

The continuing enforcement of a segregation ordinance 
is plainly a continuing wrongful course of conduct within 
the rule of the Lawlor case. Furthermore, it would be 
manifestly unjust and unconscionable to rule as appellants 
urge, that a segregation ordinance upheld prior to the de­
mise of the “ separate but equal” doctrine in the Brown and 
Browder cases, supra, must therefore go unchallenged for­
ever.

B. Appellants insist that if the plea of res judicata be 
overruled, the appellees should nevertheless be required to 
proceed in the State courts and obtain there a ruling on



9

the ordinance in question. Similar abstention-type argu­
ments have been raised in this Circuit at least twice in 
cases involving statutes and ordinances requiring racial 
segregation in public transportation facilities.

In Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956), 
affirmed, 352 U. S. 903, Judge Rives, speaking for a three- 
judge district court, set forth the guiding principle by 
stating:

. . . the doctrine [of comity] has no application where 
the plaintiffs complain that they are being deprived of 
constitutional civil rights, for the protection of which 
the Federal courts have a responsibility as heavy as 
that which rests on the State courts. 142 F. Supp. at 
713.

More recently in Morrison v. Davis, 252 F. 2d 102 (5th 
Cir. 1958), cert, denied, 356 IT. S. 968, which involved a test 
of the Louisiana statute requiring segregation in local 
public transportation facilities, this Court per curiam held 
that the withholding of federal court action for reasons of 
comity was not required,'citing the Supreme Court action 
in Browder v. Gayle, supra. See also, Orleans Parish School 
Board v. Bush, 268 F. 2d 78, 80 (5th Cir. 1959).

In Harrison v. NAACP, 360 U. S. 185, the Court applied 
the abstention principle because of its inability to find that 
the terms of the statutes there involved left no reasonable 
room for a construction by the state courts. But there is no 
room for interpretation by the State courts of the Baton 
Rouge ordinance which specifically requires the seating of 
passengers according to race, a requirement which appel­
lees contend renders it unconstitutional on its face. There­
fore, abstention could not result in avoiding decision of the 
federal constitutional issues presented, and would be im­
proper. Toomer v. Witsell, 334 U. S. 385, 392, n. 15 (1948).



10

None of the authorities relied on by appellants alters 
this conclusion. In Bratley v. Nelson, 67 F. Supp. 272 
(S. D. Fla. 1946), plaintiffs sought to void a city ordinance, 
the validity of which was then being tested in the state 
courts by one of the plaintiffs arrested for violating its 
provisions. The court ruled that equitable relief which 
would interfere with state criminal prosecutions, should 
be refused since the facts did not show “ irreparable injury 
which is clear and imminent.” Douglas v. City of Jeannette, 
319 XL S. 157,163.

A contrary decision has been reached by this Court in 
cases similar to those in issue here, Browder v. Gayle, 
supra, Morrison v. Davis, supra, in the latter of which the 
Court indicated that “ to the extent that this [the Browder 
case] is inconsistent with Douglas v. City of Jeannette, Pa., 
we must consider the earlier case modified.” 252 F. 2d at 
103. Appellees suggest that a similar modification of any 
inconsistencies in Judge Johnson’s ruling in Browder v. 
City of Montgomery. 146 F. Supp. 127 (M. D. Ala. 1956) 
must be made in light of the more recent Browder v. Gayle 
case in which Judge Johnson joined the majority.

C. In the further alternative, appellants charge that 
they are entitled to jury trial as to issues of fact regarding 
whether Ordinance No. 251 was adopted in the valid exer­
cise of the police power, and whether conditions existing 
then still prevail. The short answer to this contention is 
that in a suit for injunction which is essentially equitable 
in nature, there is no right to a trial by jury, Moore’s 
Federal Practice, 1138.24 [1]. Here, appellees have sought 
and obtained an injunction. Moreover, it is appellees’ con-, 
tention that there were no substantial issues of fact in­
volved in this case. See Argument II, infra.



11

II.

The Baton Rouge bus segregation ordinance is plainly 
invalid under settled precedent and there were no 
genuine issues of material facts.

The appellants’ contentions that there were material 
issues of fact which required a trial for their resolution 
and that the ordinance in suit is valid under the Fourteenth 
Amendment may be treated together. It is submitted that 
neither claim has merit.

A cursory review of the provisions of Ordinance 251 
reveals that it compels racial segregation in violation of 
the Fourteenth Amendment. One paragraph entitled “ Sep­
aration of Races in Buses,” requires bus companies to re­
quire all white passengers to take seats from the front and 
all Negro passengers to take seats from the rear of the 
bus; the next paragraph reserves a rear seat for Negroes 
and two front seats for white passengers; the next prohibits 
passengers of different races to occupy the same seat; 
the next paragraph requires passengers to move to the 
rear (Negroes) or the front (whites) on direction of bus 
operatorsthe next provision authorizes buses to refuse 
transportation to anyone not obeying the ordinance; the 
next exempts from the law chartered buses run for the 
exclusive use of any race; the next provides criminal pen­
alties ; and the last provides that the ordinance be effective 
immediately upon its adoption as an emergency ordinance.

The proposition that an ordinance requiring racial segre­
gation on local buses and other local public transportation 
facilities is unconstitutional under the Fourteenth Amend­
ment to the Constitution of the United States is so clearly 
settled as not to require argument. Browder v. Gayle, 142 
F. Supp. 707 (M. D. Ala. 1956), affirmed 352 U. S. 903



1 2

(1956) ; Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ; 
Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958); Bonian v. 
Birmingham Transit Co., 280 F. 2d 531 (5th Cir. 1960); 
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961). The 
cases cited above recognize no distinction snch as that 
urged by appellants, between an ordinance which required 
Negroes and whites to occupy certain firmly designated 
portions of a bus, and one like Ordinance No. 251 adopting 
another more flexible formula to require separation of the 
races on buses. There is plainly no merit in appellants’ 
intimation that this ordinance merely provides for volun­
tary segregation; it compels segregation under penalty of 
fine and imprisonment. As the Court stated so recently 
in Baldwin v. Morgan, 287 F. 2d 750, 754 (1961) :

“What is forbidden is the state action in which color 
(i.e. race) is the determinant. It is simply beyond the 
constitutional competence of the state to command that 
any facility either shall be labeled as or reserved for 
the exclusive or preferred use of one rather than the 
other of the races.”

The appellants’ claim that there are material issues of 
fact rests in part upon its legal argument that its statute 
designating certain seats for the exclusive use of Negro 
and white patrons and prohibiting different races from 
occupying the same seat is materially different from the 
laws involved in the Browder case, supra, which required 
segregated sections on buses (see Appellants’ Brief, pp. 
16-17). This is the basis for the defense that there is no 
“ segregation” on the buses, the argument being that this 
is so since there are no segregated sections set aside on 
each bus under the ordinance. It is clear that this does not 
present any factual question requiring a trial. There is 
no suggestion in the record that the defendants have aban­



13

doned Ordinance No. 251 conceding its validity; rather 
defendants continue to maintain the contrary even in this 
Court.

The formal issue raised by the denial that plaintiffs are 
Negroes, are residents of Baton Rouge, and use the buses 
is plainly insufficient to raise a genuine issue. The allega­
tion on these matters was made in a verified complaint, no 
specific averment of the answer alleged any conflicting 
facts—there was merely a general denial; and no opposing 
affidavit or statement indicating the unavailability of proof 
by affidavit was submitted (see Rule 56, Federal Rules of 
Civil Procedure). Where verified pleadings are submitted, 
even though not required by the rules, they may be treated 
as affidavits for the purposes of Rule 56. See Fletcher v. 
Norfolk Newspapers, Inc., 239 F. 2d 169 (4th Cir. 1956); 
Williams v. Kolb, 79 U. S. App. D. C. 253, 145 F. 2d 344 
(D. C. Cir. 1944).

Finally plaintiffs are not required as a prerequisite to 
an action to enjoin a bus segregation ordinance to show that 
they disobeyed the ordinance and risked arrest, or were 
arrested. See Baldwin v. Morgan, 251 F. 2d 780, 787 (5th 
Cir. 1958), and Morrison v. Davis, 252 F. 2d 102 (5th Cir. 
1958). In the Morrison case the Court said:

Since all transportation can be denied them [Ne­
groes] under the statute unless they obey the illegal 
requirement, it is not even apparent that they could 
put themselves in position to be arrested and prose­
cuted even if they sought to test their constitutional 
rights in that manner, which we hold they do not have 
to do (252 F. 2d at 103).

It is settled that under Rule 56, Federal Rules of Civil 
Procedure, the courts can pierce formal allegations or de­
nials in pleadings and render judgment where there are



14

no genuine factual disputes. 6 Moore’s Federal Practice 
T156.04, pp. 2028 et seq. The basic principle applicable here 
was succinctly stated by Judge Cardozo (later Mr. Justice 
Cardozo) in Richard v. Credit Suisse, 242 N. Y. 346, 152 
N. E. 110 (1926) : “The very object of a motion for sum­
mary judgment is to separate what is formal or pretended 
in denial or averment from what is genuine and substantial, 
so that only the latter may subject a suitor to the burden 
of trial.”

CONCLUSION

Appellees respectfully submit that the judgment of 
the Court below should be affirmed.

Respectfully submitted,

A. P. T ubeatjd

1821 Orleans Avenue 
New Orleans 16, La.

J ack (xbebnbebg 
C onstance B akee M otley 
J ames M . N abbit, III 
D ebeick A. B ell

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellees