Brown v. A. J. Gerrard Manufacturing Co. Brief of the NAACP Legal Defense and Educational Fund as Amicus Curiae

    In t h e

(Enurl of the llnitrit States
October Term, 1959 

No_______

B ru ce  B o y n to n , 

—v.—
Petitioner,

C o m m o n w ea lth  oe V ir g in ia ,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

M a rtin  A. M artin

118 East Leigh Street 
Richmond 19, Virginia

Clarence  \Y. N ew som e  
118 East Leigh Street 
Richmond 19, Virginia

T hurgood  M arshall  
C onstance  B aker  M otley  
J ack  G reenberg

10 Columbus Circle 
New' York 19, New York

Attorneys for Petitioner



I n  t h e

jshtprpmp ( to r t of %  Mniteb
October Term, 1959 

No. ..............

B bu ce  B o y n to n , 

—v.—
Petitioner,

C o m m o n w ea lth  o r  V ir g in ia ,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Appeals of the 
Commonwealth of Virginia.

Opinions Below

No opinion was rendered in this case by the Supreme 
Court of Appeals of Virginia when it denied the petitioner 
a writ of error to the judgment of the Hustings Court of 
the City of Richmond on the 19th day of June, 1959. No 
opinion was rendered by the Hustings Court of the City 
of Richmond on the 20th day of February, 1959 when it 
found petitioner guilty of a violation of §18-225 of the 
Code of Virginia, 1950, as amended.

Judgment

The judgment of the Supreme Court of Appeals of Vir­
ginia was rendered on the 19th day of June, 1959 and a 
stay of execution and enforcement of the judgment of said



2

Court was granted on the 24th day of July, 1959 staying 
the execution and enforcement of same until the 17th day 
of September, 1959, unless the case has before that time 
been docketed in this Court in which event enforcement of 
said judgment shall be stayed until the final determination 
of this case by this Court.

Questions Presented

1.
Whether the criminal conviction of plaintiff, an inter­

state traveller, for refusing to leave an interstate bus 
terminal restaurant where he sought refreshment at a 
regularly scheduled stop in the course of his interstate 
journey and was barred solely because of his race, is invalid 
as a burden on interstate commerce in violation of Article 
I, §8, Clause 3 of the United States Constitution.

2 .
Whether said conviction violates the due process and 

equal protection clauses of the 14th Amendment of the 
Constitution of the United States.

Constitution and Statutory Provisions Involved

This case involves:

Article I, §8, and the due process and equal protec­
tion clauses of the XIV Amendment of the Constitution 
of the United States.

§18-225 of the Code of Virginia of 1950. This statu­
tory provision is set forth in the statement, infra, 
p. 4.



3

Statement of the Case

Bruce Boynton, petitioner, a Negro student at the 
Howard University School of Law, Washington, D. C., 
purchased a ticket, in Washington, D. C., for transportation 
by Trailways Bus to Montgomery, Alabama, via Richmond, 
Virginia, and then with connecting carrier to his home in 
Selma, Alabama. He boarded a Trailways Bus in Washing­
ton, D. C., at 8 :00 p. m., and arrived at the Trailways Bus 
Terminal in Richmond, Virginia about 10:40 p. m. The 
bus driver notified him and all other passengers that there 
would be a forty minute layover at the Richmond Trailways 
Terminal (R. 31-33).

Petitioner left the bus, entered the waiting room of the 
terminal and noticed a small restaurant crowded with 
colored patrons. He proceeded through the waiting room 
and approached another restaurant, which was practically 
empty, adjacent to the waiting room (R. 33). He entered 
that restaurant, where the white waitress informed him that 
he could not be served. She advised him to go to the colored 
restaurant. He explained that the colored restaurant was 
crowded, that he was an interstate passenger, and that he 
desired to be served before boarding his bus which was due 
to leave shortly (R. 34-35). She persisted in stating that 
it was not the custom to serve Negroes in that particular 
restaurant. He then inquired who could serve him. The 
waitress called the assistant manager who demanded that 
petitioner leave, and stated that he could not be served in 
that restaurant because he was colored (R. 35).

When petitioner refused to leave the restaurant the as­
sistant manager caused him to be arrested (R. 35) and 
charged with a violation of §18-225 of the Code of Virginia 
of 1950, as amended which provides:



4

“If any person shall without authority of law go 
upon or remain upon the lands or premises of another 
after having been forbidden to do so by the owners, 
lessee, custodian or other person lawfully in charge of 
such land, or after having been forbidden to do so by 
sign, or signs posted on the premises at a place or 
places where they may be reasonably seen, he shall be 
deemed guilty of a misdemeanor, and upon conviction 
thereof shall be punished by a fine of not more than 
$100.00 or by confinement in jail not exceeding thirty 
days, or by both such fine and imprisonment.”

The bus terminal was owned and operated by Trailways 
Bus Terminal, Inc. (R. 9-17). The restaurants therein were 
built into the terminal upon its construction and leased by 
Trailways to Bus Terminal Restaurant of Richmond, Inc. 
(R. 9-17). The lease gave exclusive authority to the lessee 
to operate restaurants in the terminal, required that they 
be conducted in a sanitary manner, that sufficient food and 
personnel be provided to take care of the patrons, that 
prices be just and reasonable, that equipment be installed 
and maintained to meet the approval of Trailways, that 
lessee’s employees be neat and clean and furnish service 
in keeping with service furnished in an up-to-date, modern 
bus terminal; prohibited the sale of alcoholic beverages on 
the premises; and permitted cancellation of the lease upon 
the violation of any of its conditions (R. 9-17).

Petitioner was convicted in the police court of the City 
of Richmond and fined $10.00, which conviction was ap­
pealed to the Hustings Court of the City of Richmond which 
affirmed (R. 38). Petition for writ of error to the Supreme 
Court of Appeals was rejected, the effect of which was to 
affirm the judgment of the Hustings Court (R. 42). The 
affirmance by the Supreme Court of Appeals of Virginia, ap­
pears in the Appendix, infra, p. 11. In the Hustings Court



5

of the City of Richmond petitioner objected to the criminal 
prosecution on the grounds that it contravened his rights 
under the Commerce Clause of the United States Consti­
tution (Article 1, Section 8) and the Interstate Commerce 
Act (Title 49 U. S. C., Section 316(d)) and that he was 
thereby denied due process and equal protection of the 
laws (R. 5). Said objections were renewed by notice of 
appeal and assignment of error to the Supreme Court of 
Appeals of Virginia (R. 3). These defenses, however, as 
aforesaid, were rejected at all stages of the litigation with­
out opinion.

Reasons Relied on for Allowance of the Writ

I. T h e  decisions below  con flic t w ith  p r in c ip les  estab lished  
by decisions o f  th is  C ourt by d en y in g  p e titio n e r , a N egro , 
a m eal in  th e  course o f  a regu larly  sch ed u led  sto p  at th e  
restauran t te rm in a l o f  an in tersta te  m o to r  carrier and  co n ­
v ic ting  h im  o f  trespass fo r  seek in g  nonsegrega ted  d in in g  
facilities w ith in  th e  term in a l.

In Morgan v. Virginia, 328 U. S. 373 this Court held that 
Virginia could not require racial segregation on interstate 
buses. The basis of the decision is that the enforcement 
of such seating arrangements so disturbed Negro pas­
sengers in interstate motor travel that a burden on inter­
state commerce was created in violation of Article 1, Sec­
tion 8 of the United States Constitution. Id. at 382. This 
Court held that absent congressional legislation on the 
subject the Constitution required “a single uniform rule 
to promote and protect national travel.” Id. at 386. An 
identical rule has been applied to similar racial restrictions 
on commerce imposed by rules of the carrier enforced by 
arrest and criminal conviction. Whiteside v. Southern Bus 
Lines, 177 F. 2d 949 (6th Cir. 1949); Chance v. Lambeth, 
186 F. 2d 879 (4th Cir. 1951), cert, denied 341 U. S. 941. It



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is obvious that interstate bus travel cannot be conducted 
without regularly scheduled rest stops and anyone who 
has travelled for long distances on an interstate bus knows 
that dining facilities at such stops are an essential part 
of interstate bus service. In fact, in this ease the record 
reveals that the Richmond Terminal, at which petitioner’s 
arrest occurred, was designed to incorporate a restaurant 
at the time of its construction (R. 9). To deny petitioner a 
meal at the terminal obviously was as disturbing to him or 
indeed far more disturbing than the shifting about of pas­
sengers on a bus which this Court condemned in Morgan, 
supra.

Petitioner here testified that the colored restaurant ap­
peared to be crowded at the time he approached it during 
the layover, while the white restaurant was not crowded 
(R. 33). Although the assistant manager of the bus termi­
nal restaurant testified that there was “seating capacity” 
in the colored restaurant at or around the time petitioner 
entered the white restaurant (R. 24) this apparent conflict 
may be explained by the fact that passengers-customers 
come and go: if petitioner had waited in the colored res­
taurant he might have eventually been served. But it surely 
is a burdensome discrimination in service to subject one 
class of passengers to the uncertainty of waiting at a colored 
restaurant for the chance of a seat while seats surely are 
available at the white restaurant.

But petitioner’s objection to the police enforced segrega­
tion is more fundamental. In Henderson v. United States, 
339 U. S. 816, 825, this Court, while dealing with the 
Interstate Commerce Act, condemned racial segregation in 
railroad dining cars as “emphasizing] the artificiality of 
the difference in treatment which serves only to call at­
tention to a racial classification of passengers holding 
identical tickets and using the same public dining facility.” 
An interstate traveler finds such treatment as objectionable



7

in a terminal as he does on a moving diner. Moreover, 
clearly even more disruptive of a smooth interstate journey 
was petitioner’s arrest and conviction which enforced the 
racial restriction see Morgan v. Virginia, supra. These 
decisively interrupted the trip. That the restaurant in 
question was leased by the terminal to a restaurant operator 
hardly made the interruption of petitioner’s journey less 
conclusive.

As the terminal’s lease to the restaurant operator indi­
cates (R. 9), the lease was made prior even to the con­
struction of the terminal. The restaurant was built as an 
integral and essential part of the interstate facility. The 
lessor imposed conditions on the lessee designed to as­
sure adequate sanitary conditions, reasonably priced ser­
vice for restaurant patrons, and the right to cancel the 
lease upon violation of any of its conditions. Access to the 
restaurant obviously facilitated interstate travel, and was 
intended to. Conversely, exclusion impeded the smooth 
flow of national commerce, notwithstanding internal pro­
prietary arrangements within the terminal.

It cannot seriously be urged that because the terminal 
is stationary or local as to some persons, it therefore is 
not in interstate commerce at all and that petitioner’s 
treatment for that reason did not constitute a burden on 
interstate commerce. This Court has held that a transac­
tion with a red cap at a railroad station is in interstate 
commerce, N. Y. N. H. £  H. R. Co. v. Notlmagle, 346 U. S. 
128. As stated in that case at p. 130, “Neither continuity 
of interstate movement nor isolated segments of the trip 
can be decisive. ‘The actual facts govern. For this purpose, 
the destination intended by the passenger when he begins 
his journey and known to the carrier, determines the char­
acter of the commerce,’ ” citing Sprout v. South Bend, 277 
U. S. 163, 168. Moreover, grain elevators surely as sta­
tionary as the bus terminal have been held to be in inter-



8

state commerce. See Rice v. Santa Fe Elevator Corp., 331 
U. S. 218, 229. And taxi service between two rail terminals 
in Chicago which to the man in the street might look like 
ordinary local taxi traffic also has been held to be in inter­
state commerce. United States v. Yellow Cab Co., 332 U. S. 
218, 228.

The operation of a bus terminal surely falls within the 
principle of such cases at least insofar as it applies to 
an interstate bus passenger who attempts to use its facili­
ties in the usual manner in the normal course of an inter­
state bus trip.

II. P e titio n e r’s co n v ic tio n  w h ich  served  o n ly  to  en fo rc e  the  
racial reg u la tion  o f  th e  bus te rm in a l restauran t con flic ts  
w ith  p r in c ip les  estab lished  by  decisions o f  th is  C ourt.

If anything is fundamental in constitutional jurispru­
dence it is that the state may not enforce racial regulations. 
Shelley v. Kraemer, 334 U. S. 1, invalidated judicial enforce­
ment of private racially restrictive covenants by court in­
junction. Barrows v. Jackson, 346 U. S. 249, held that 
racially restrictive covenants could not be enforced by the 
courts by assessing damages for their violation. Marsh v. 
Alabama, 326 U. S. 501 held that the criminal courts could 
not be employed to convict of trespass persons exercising 
Fourteenth Amendment rights.

In this case petitioner conducting himself in a manner 
entirely normal for an interstate passenger ran afoul of 
the terminal restaurant’s racial rule. While he may bring 
civil suit against the terminal for refusal to serve him, see 
Whiteside v. Southern Bus Lines, supra, Chance v. Lam­
beth, supra, Valle v. Stengel, 176 F. 2d 697 (3d Cir. 1949), 
perhaps he might also have chosen to suffer the indignity 
and discomfort and done nothing. But here the terminal 
chose to invoke the power of the State, which readily com-



9

plied, to convict petitioner of a crime. Apart from the 
fairly substantial penalty which could have been imposed 
or the modest, but highly inconvenient penalty and attend­
ing criminal proceedings in which he became embroiled, 
it may be noted that he is a law student whose opportunity 
for admission to the bar obviously will be complicated by 
a criminal conviction on his record. At least to the extent 
that the State criminal machinery has been used to enforce 
discrimination, therefore, the judgment below conflicts with 
the long, consistent line of decision in this Court, For 
this reason, therefore, the writ of certiorari should be 
granted to correct the grievous error and injustice com­
mitted below.

Respectfully submitted,

M a rtin  A. M artin

118 East Leigh Street 
Richmond 19, Virginia

Cla ren ce  W . N ew som e  
118 East Leigh Street 
Richmond 19, Virginia

T hurgood  M arshall

C onstance  B a k er  M otley

J ack  Greenberg

10 Columbus Circle 
New York 19, New York

Attorneys for Petitioner





11

APPENDIX

Judgment of the Supreme Court of Appeals

V ir g in ia :

In the Supreme Court of Appeals held at the Supreme 
Court of Appeals Building in the City of Richmond on 
Friday the 19th day of June, 1959.

The petition of Bruce Boynton for a writ of error and 
supersedeas to a judgment rendered by the Hustings Court 
of the City of Richmond on the 20th day of February, 1959, 
in a prosecution by the Commonwealth against Bruce Boy- 
ington, alias Bruce Boynton, for a misdemeanor, having- 
been maturely considered and a transcript of the record of 
the judgment aforesaid seen and inspected, the court being 
of opinion that the said judgment is plainly right, doth re­
ject said petition and refuse said writ of error and super­
sedeas, the effect of which is to affirm the judgment of the 
said Hustings Court.



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