Thomas v. Mississippi Petition for Writ of Certiorari

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October 7, 1963

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Brief Collection, LDF Court Filings. Thomas v. Mississippi Petition for Writ of Certiorari, 1963. d3af77fe-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/0e2d5339-679e-490a-ac89-c54fd6982365/thomas-v-mississippi-petition-for-writ-of-certiorari. Accessed April 29, 2025.

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In the

(Emxt of % 1 nltth BUttz
October Term, 1963

No_________

Henry J. Thomas, James F armer, John Lee Copeland, Ernest
Patton, Jr., Grady H. Donald, Peter A ckerberg, James
Luther Bevel, Pauline Edythe Knight, Charles David
Myers, Carolyn Yvonne Reed, Joseph John McDonald,
Raymond Randolph, Jr., A lexander A nderson, Lester G.
McK innie, W illiam E. Harbour, Zev Aelony, Marvin A llen
Davidov, Claire O’Connor, David Kerr Morton, K atherine
A. Pleune, Robert F ilner, Elizabeth S. A dler, Sandra
Nixon, Terry Susan Perlman, Edward J. Bromberg, Lestra
A lene Peterson, Thomas V an Roland, Joan Frances Pleune
and Grant Harlan Muse, Jr.,

Petitioners,

State oe Mississippi.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF MISSISSIPPI

Jack Greenberg
James M. Nabrit, III
Derrick A. Bell, Jr.

10 Columbus Circle
New York, New York 10019

Jack Y oung
Carsie Hall

115JT North Farish Street
Jackson, Mississippi

R. Jess Brown
1 2 5 North Farish Street
Jackson, Mississippi
Attorneys for Petitioners

Carl Rachlin
Leroy D. Clark
Michael Meltsner

Of Counsel

I N D E X

Opinions Below .................................................................... 2

Jurisdiction ...............................-........ -................................ 2

Questions Presented........ ..................... -................. - ......... 3

Statutory and Constitutional Provisions Involved ....... 4

Statement ........— ...... ................. -............................... -..... 7

Facts in Common .......................................... -.......... 9
A. Trailways Continental Bus Station .........— 11

1. May 24, 1961 .......................-...................... - 11
(a) Bevel and Anderson — ..................... 14

(b) Thomas, Farmer, Copeland, Donald
and Ackerberg ................ 14

2. May 28, 1961 .......... ............. ........................ 16

3. June 2, 1961 ................................................— 17

4. June 7, 1961 ................. ............... ............... 19

B. Greyhound Bus Terminal ......................... 19

1. May 28, 1961 .......................................... 19

2. June 11, 1961 ............................... — ...... 20

3. June 16, 1961 ............................. ...... ......... 21

C. Illinois Central Train Station ---- -------------- 22

1. May 30, 1961 ........................................... .... 22

2. June 8, 1961 ....... ................. .................. . 23

3. June 9, 1961 ............................... ...... -...... - 23

4. June 20, 1961 ......... ..................................... 24

PAGE

How the Federal Questions Were Raised and De
cided Below ..... ............................................................. 26

Reasons for Granting the W rit ....... ..................... -............ 31

I. Petitioners’ Convictions Offend Due Process
Because Based on No Evidence of Guilt ......... 32

II. The Statute Used to Convict Petitioners Is So
Vague, Uncertain and Indefinite as to Conflict
With the Due Process Clause of the Fourteenth
Amendment................ .............................. ............... 37

III. These Convictions Constitute State Enforce
ment of Racial Segregation in Interstate Facili
ties Contrary to . the Equal Protection Clause
of the Fourteenth Amendment, Article 1, Sec
tion 8, Clause 2 (Commerce Clause) of the
United States Constitution and 49 U. S. C., Sec
tions 3(1) and 316(d) ........ - ____ ____ ________ 40

IV. These Convictions Conflict With First Amend
ment Guarantees of Free Speech, Assembly
and Association ......................................... 44

Conclusion ............................................................................ 45

A ppendix I ............................................................................ la

Opinion Below, Thomas v. Mississippi............... . la

Concurring Opinion, Thomas v. Mississippi ______ 29a

Opinion Below, Farmer v. Mississippi .................... 36a

Opinion Below, Knight v. Mississippi ............. ..... 40a

I l l

A ppendix II ......................................................... -......... — 46a

Mississippi Code

§ 2351 ........................................................................- 46a

§2351.5 ...... ...................................... -.................. -----.... 46a

§ 2351.7 ................. -............................................-............ 47a

§ 7784 ............. ......... ............ .............................. .......... 48a

§ 7785 .....................................................-....... -......... -.... 49a

§ 7786 ................ ......... ...................... -............... -........... 51a

§7786.01 ...................................................................----- 51a

§ 7787 ...................................-............. ~~........................ 52a

§7787.5 .............................................................. - 52a
Jackson, Mississippi, Ordinance Passed January 12,
1956 ..................................................................................- 55a

A ppendix III ............................................ -..................... — 58a

Opinion Below, Rogers Case ........................ — 58a

Judgment from Mississippi Supreme Court in
Thomas Case ................................-........................... — 59a
Order Overruling Suggestion of Error in Thomas
Case ...................................................... -.......... ....... ..... 61a

T able of Cases

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961) ....................... ........... ..... .................. ..... ....... 10,42,43

Bailey v. Patterson, 206 F. Supp. 67 (S. D. Miss. 1962) 10
Bailey v. Patterson, 323 F. 2d 201 (5th Cir. 1963) ...... 10
Bailey v. Patterson, 368 U. S. 346 ............----- ------- ----- 10

PAGE

Bailey v. Patterson, 369 U. S. 31 .............................10, 32, 42
Boynton v. Virginia, 364 U. S. 454 ..... ......... ............... 32, 43
Buchanan v. Warley, 245 U. S. 60 ................................... 33
Burstyn v. Wilson, 343 U. S. 495 ......... ............................. 44

Cantwell v. Connecticut, 310 U. S. 296 .... .................. 39, 44
Connally v. General Construction Co., 269 U. S. 385 .... 39
Cooper v. Aaron, 358 U. S. 1, aff’g 257 P. 2d 33 (8th

Cir. 1958) ............................................... ........................ 33,37

Edwards v. South Carolina, 372 U. S. 229 ...... ........ 37, 44, 45

Fields v. South Carolina, 375 U. S. 44 .......................37, 44

Garner v. Louisiana, 368 U. S. 157 ...... ................. .......36, 44
Gayle v. Browder, 352 U. S. 903 ............ ...................... 32, 43

Henderson v. United States, 339 U. S. 816..................... 43
Henry v. Bock H ill,------ - U. S .------ (April 6, 1964) ....37,44

Keys v. Carolina Coach Co., 64 Motor Carrier Cases
769 .................................................................................... . 43

Lanzetta v. New Jersey, 306 U. S. 451 .................. 39
Lombard v. Louisiana, 373 U. S. 267 .................... 43

Mitchell v. United States, 313 U. S. 80 ................... 43
Morgan v. Virginia, 328 U. S. 373 ...................................32, 43

NAACP v. Alabama, 357 U. S. 449 ................. ............. 44
NAACP v. Button, 371 U. S. 415 ................................... 39
NAACP v. St. Louis-S. F. B. Co., 297 I. C. C. 335 ....... 43
Nesmith v. Alford, 318 F. 2d 110 (5th Cir. 1963) ...... 39

PAGE

Peterson v. Greenville, 373 U. S. 244 43

Ealey v. Ohio, 360 U. S. 423 ........... ................. ................. 39

Stromberg v. California, 283 U. S. 359 ..... ..... - ..... ....... 44

Taylor v. Louisiana, 370 U. S. 154 ........................-......36,38
Terminiello v. Chicago, 337 U. S. 1 .............................. 45
Thompson v. Louisville, 363 U. S. 199 ...... ......... 36
Thornhill v. Alabama, 310 U. S. 8 8 .......... ...... .... ...... . 44

United States v. City of Jackson, 318 F. 2d 1 (5th Cir.
1963) ............. 10,41

Watson v. Memphis, 373 U. S. 526 .................................. 33
Wright v. Georgia, 373 U. S. 284 .......................33, 36, 37, 38

Constitutions, Statutes, Ordinances
and R egulations

Jackson City Ordinance, January 12, 1956 (Minute
Book “ F F ” ) ................................. 6,42

49 C. F. R., Section 180(a) (1)-(10) ________________ 32

Mississippi Code, Title 11, Section 2087.5 (1942 as
amended) ............... ................ ............... ............ -.... —4, 9, 27

Mississippi Code, Title 11, Section 2089.5 ................... 9

Mississippi Code, Title 11, Sections 2351, 2351.5,
2351.7 ..................-......... -................. -................. ............... 6,41

Mississippi Code, Title 17, Section 4065.3 ................. ..28, 40

Mississippi Code, Title 28, Sections 7784, 7785, 7786,
7786.01, 7787, 7787.5 ........... 6,41,42

Mississippi Constitution, Section 225 .... ...................... 28

United States Code, Title 28, Section 1257(3) ............. 3

PAGE

United States Code, Title 49, Section 3(1) ...................3,40

United States Code, Title 49, Section 316(d) ....3, 6, 27, 32, 40

United States Constitution, Article 1, Section 8, Clause
3 .......................................................... ............. ..... 4,27,31,40

United States Supreme Court Rule 23(5) ..................... 3,8

In the

i&ttprpmp tour! of tlie United BtdUs
October T eem, 1963

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

H enry J. T homas, James F armer, J ohn L ee Copeland,
E rnest P atton, J r., Grady H. D onald, P eter A cker-
berg, J ames L uther B evel, P auline E dythe K night,
Charles D avid Myers, Carolyn Y vonne R eed, J oseph
J ohn M cD onald, R aymond R andolph, J r ., A lexander
A nderson, L ester G. M cJvinnie , W illiam E. H arbour,
Z ev A elony, Marvin A llen D avidov, Claire O ’Connor,
D avid K err M orton, K atherine A . P leune, R obert
F ilner, E lizabeth S. A dler, Sandra N ison , T erry
Susan P erlman, E dward J. B romberg, L estra A lene
P eterson, T homas V an R oland, J oan F rances P leune
and Grant H arlan M use, Jr.,

Petitioners,
— v.—•

State of M ississippi.

PETITION FOR WHIT OF CERTIORARI TO THE
SUPREME COURT OF MISSISSIPPI

Petitioners pray that a writ of certiorari issue to review
the judgments of the Mississippi Supreme Court entered
in the above-entitled cases as set forth in “ Jurisdiction,”
infra.

Opinions Below

The opinions of the Mississippi Supreme Court are re
ported as follows: Thomas v. State, 160 So. 2d 657 (App.
p. la) ; Farmer v. State, 161 So. 2d 159 (App. p. 36a) ;
Knight v. State, 161 So. 2d 521 (App. p. 40a). The remain

ing cases were decided by brief opinions affirming on the
authority of the Farmer and Thomas cases. Their cita
tions are set forth in the footnote below.1

Jurisdiction

The judgment of the Mississippi Supreme Court in
Thomas v. State, No. 42,987, was entered on February 17,
1964. Judgments in Farmer v. State, No. 42,983; Bevel v.
State, No. 42,960; Aelony v. State, No. 42,980; Bavidov
v. State, No. 42,723; McDonald v. State, No. 42,970; Van
Roland v. State, No. 43,029; Myers v. State, No. 42,968;
Peterson v. State, No. 43,034; Patton v. State, No. 42,956;
Katherine Pleune v. State, No. 42,957; Copeland v. State,
No. 42,722; Muse v. State, No. 42,975; O’Connor v. State,
No. 42,982; Joan Pleune v. State, No. 43,036; Donald v.
State, No. 42,951; Nixon v. State, No. 42,966; Filner v.
State, No. 42,978; Anderson v. State, No. 42,985; Perlman
y. State, No. 42,961; Harbour v. State, No. 42,963; Acker-
berg v. State, No. 42,984; Reed v. State, No. 43,031; Ran
dolph v. State, No. 43,032; and Morton v. State, No. 42,973,
were entered on March 2, 1964, and in Knight v. State, No.
42,958; Bromberg v. State, No. 42,967; McKimiie v. State,
No. 42,971; and Adler v. State, No. 42,999, on March 9,
1964.

Suggestions of error were overruled in Thomas, on
March 16, 1964; in Farmer, Knight, Patton, McDonald,
Bromberg, Filner, Aelony, Nixon, Myers, Donald, Acker-
berg, Harbour, Perlman, Reed, Morton, Anderson, Cope
land, Muse, O’Connor, Van Roland, Adler, McKinnie, K. 1

1 Copeland and Bavidov, 161 So. 2d 161; Donald, Patton, and
K. Pleune, 161 So. 2d 162; Bevel, Perlman, and Harbour, 161 So.
2d 163; Nixon, Myers, and McDonald, 161 So. 2d 164; Morton,
Muse, Filner, 161 So. 2d 165; Aelony, O’Connor, Anderson, 161
So. 2d 166; Ackerberg, Roland-, Reed, 161 So. 2d 167; Randolph,
Peterson, J. Pleune, 161 So. 2d 168; McKinnie, 161 So. 2d 520;
Bromberg and Adler, 161 So. 2d 528. (See App. pp. 58a et seq.)

Pleune, Davidov, Bevel, Randolph, and Peterson, on April
6, 1964; and in J. Pleune on April 13, 1964.

Jurisdiction of this Court is invoked pursuant to Title
28, U. S. C., §1257(3), petitioners having alleged below,
and alleging here, deprivation of rights, privileges and
immunities secured by the Constitution of the United
States.2

Questions Presented

Whether the arrest, prosecution and conviction of peti
tioners, Negro and white interstate passengers, deprived
them of rights protected b y :

1. the due process clause of the Fourteenth Amendment
in that the records are devoid of any evidence of guilt;

2. the due process clause of the Fourteenth Amendment
in that the statute under which they were convicted is so
vague and indefinite as to afford no ascertainable standard
of guilt and fails to warn of the conduct punishable;

3. the due process and equal protection clauses of the
Fourteenth Amendment in that their arrests, prosecutions
and convictions were designed to enforce racial segrega
tion required by state statutes and by ordinance of the
City of Jackson in interstate facilities;

4. the First and Fourteenth Amendments to the United
States Constitution in that petitioners were exercising
rights of free expression and assembly in peacefully pro
testing racial segregation in interstate facilities;

5. Title 49, United States Code, §§3(1) and 316(d), pro
hibiting racial discrimination in interstate bus and train
facilities;

2 A common writ of certiorari is filed pursuant to Rule 23(5)
of the Rules of this Court.

6. Article 1, Section 8, clause 3 of the United States
Constitution (the Commerce Clause) in that the prosecu
tion of petitioners constituted an unlawful burden on com
merce.

Statutory and Constitutional Provisions Involved

These cases involve Section 1 of the Fourteenth Amend
ment to the United States Constitution and Article 1, Sec
tion 8, Clause 3 (Commerce Clause) of the United States
Constitution.

Each petitioner was convicted under Title 11, Code of
Mississippi, Annotated, Section 2087.5 (1942 as amended):

§2087.5. Disorderly conduct—may constitute felony,
when.

1. Whoever with intent to provoke a breach of the
peace, or under circumstances such that a breach of
the peace may be occasioned thereby:

(1) crowds or congregates with others in or upon
shore protecting structure or structures, or a
public street or public highway, or upon a. public
sidewalk, or any other public place, or in any
hotel, motel, store, restaurant, lunch counter,
cafeteria, sandwich shop, motion picture theatre,
drive-in, beauty parlor, swimming pool area, or
any sports or recreational area or place, or any
other place of business engaged in selling or serv
ing members of the public, or in or around any
free entrance to any such place of business or pub
lic building, or to any building owned by another
individual, or a corporation, or a partnership or
an association, and who fails or refuses to disperse
and move on, or disperse or move on, when ordered

so to do by any law enforcement officer of any
municipality, or county, in which such act or acts
are committed, or by any law enforcement officer
of the State of Mississippi, or any other authorized
person, or

(2) insults or makes rude or obscene remarks or
gestures, or uses profane language, or physical
acts, or indecent proposals to or toward another
or others, or disturbs or obstructs or interferes
with another or others, or

(3) while in or on any public bus, taxicab, or
other vehicle engaged in transporting members of
the public for a fare or charge, causes a disturb
ance or does or says, respectively, any of the mat
ters or things mentioned in subsection (2) supra,
to, toward, or in the presence of any other pas
senger on said vehicle, or any person outside of
said vehicle or in the process of boarding or de
parting from said vehicle, or any employee en
gaged in and about the operation of such vehicle,
or

(4) refusing to leave the premises of another when
recpiested so to do by any owner, lessee, or any
employee thereof,

shall be guilty of disorderly conduct, which is made
a misdemeanor, and, upon conviction thereof, shall
be punished by a fine of not more than two hundred
dollars ($200.00), or imprisonment in the county jail
for not more than four (4) months, or by both such
fine and imprisonment; and if any person shall be guilty
of disorderly conduct as defined herein and such con
duct shall lead to a breach of the peace or incite a riot
in any of the places herein named, and as a result of

said breach of the peace or riot another person or per
sons shall be maimed, killed or injured, then the per
son guilty of such disorderly conduct as defined herein
shall be guilty of a felony, and upon conviction such
person shall be imprisoned in the Penitentiary not
longer than ten (10) years.

Each case involves Title 49, United States Code, Section
316(d) :

. . . It shall be unlawful for any common carrier by
motor vehicle engaged in interstate or foreign com
merce to make, give, or cause any undue or unreason
able preference or advantage to any particular person,
port, gateway, locality, region, district, territory, or
description of traffic, in any respect whatsoever; or
to subject any particular person, port, gateway,
locality, region, district, territory, or description of
traffic to any unjust discrimination or any undue or
unreasonable prejudice or disadvantage in any respect
whatsoever. . . .

Each case also involves Sections 2351, 2351.5, 2351.7, 7784,
7785, 7786, 7786.01, 7787, 7787.5 of the Code of Mississippi,
1942 and ordinance of the City of Jackson, Mississippi,
adopted January 12, 1956, and recorded in Minute Book
“ FF,” page 149. These state statutes and Ordinance of the
City of Jackson are appended, infra pp. 46a-57a.

Statement

These are twenty-nine of more than three hundred “ Free
dom Eider” cases tried in Jackson, Mississippi.3 The ar
rests, involving common facts relevant to the constitutional
issues, occurred in 1961 in bus and train terminals in the
City of Jackson.4 Each petitioner was tried separately
though common facts and identical federal constitutional
and state law issues were involved. All were charged
with the same offense and received identical sentences.5 The

8 There are twenty-nine separate records and trial transcripts.
However, the principal record is Thomas v. State, No. 42,987.
The testimony and witnesses are essentially the same in all cases.

4 Arrested at Trailways Continental Bus Terminal were: Henry
J. Thomas, No. 42,987 (It. 4) ; James L. Farmer, No. 42,983 (R.
4 ); John Lee Copeland, No. 42,722 (R. 3) ; Ernest Patton, Jr.,
No. 42,956 (R. 4 ) ; Peter Ackerberg, No. 42,984 (R. 4 ) ; James
Luther Bevel, No. 42,960 (R. 4 ) ; Grady Donald, No. 42,951 (R.
4 ) ; and Alexander Anderson, No. 42,985 (R. 4) (May 24, 1961).
Pauline Edythe Knight, No. 42,958 (R. 4) and Charles David
Myers, No. 42,968 (R, 4) (May 28, 1961) ; Carolyn Yvonne Reed,
No. 43,031 (R. 4) and John J. McDonald, No. 42,970 (R. 4)
(June 2, 1961). Raymond Randolph, Jr., No. 43,032 (R. 4) (June
7.1961) .

The following were arrested at Greyhound Bus Terminal: Lester
G. McKinnie, No. 42,971 (R. 4) ; William Harbour, No. 42,963
(R. 3) (May 28, 1961). Katherine A. Pleune (June 10, 1961) (No.
42,957). Zev Aelony, No. 42,980 (R. 4 ) ; Marvin Allen Davidov,
No. 42,723 (R. 4) ; Claire O’Connor, No. 42,982 (R. 4 ) ; David
Kerr Morton, No. 42,973 (R. 4) (June 11, 1961). Robert Filner,
No. 42,978 (R. 4) and Elizabeth S. Adler, No. 42,999 (R. 4) (June
16.1961) .

The following were arrested at Illinois Central Train Terminal:
Sandra Nixon, No. 42,966 (R. 4) (May 30, 1961) ; Terry Susan
Perlman, No. 42,961 (R. 4) (June 8, 1961). Edward Bromberg,
No. 42,967 (R. 4) • Lestra Peterson, No. 42,034 (R. 4) ; Thomas
Van Roland, No. 43,029 (R. 4 ) ; Joan Frances Pleune, No. 43,036
(R. 4) ; and Grant Harlan Muse, No. 42,975 (R. 4) (June 20, 1961).

5 In Municipal Court each petitioner received 60 days suspended
sentence and $200.00 fine. In trials de novo in the County Court
of Hinds County they were sentenced to four months in jail and
$200.00 fine, the maximum provided by statute.

same state law and federal constitutional questions were
raised in each case after trials in the Municipal and County
Courts of the City of Jackson,6 and on appeal to the Circuit
and Supreme Courts of Mississippi. See infra, pp. 26-31.

Three affirming opinions were written for all twenty-
nine cases by the Mississippi Supreme Court: Thomas v.
State, No. 42,987; Farmer v. State, No. 42,983; and Knight
v. State, No. 42,958. See infra, pp. la-45a. All others were
affirmed without opinion, merely citing Thomas and Farmer.
See infra, p. 58a. Therefore, for convenient presenta
tion, the issues are brought here by petition for writ of
certiorari in a single document. Supreme Court Rule 23(5),
cf. Petition for Writ of Certiorari, Goher, et al. v. City
of Birmingham, 373 U. S. 374.

Petitioners, white and Negro interstate passengers, were
tried and convicted in the Municipal Court of Jackson
under affidavits charging them with breach of the peace
under Section 2087.5, Miss. Code Annot., 1942 as amended,
in that they did “ wilfully and unlawfully congregate with
others” in “ a place of business engaged in selling members
of the public” and failed or refused “ to move on when
ordered” by a law-enforcement officer.7 Upon conviction
they were sentenced to four months in jail and $200.00 fine,
which convictions were affirmed on appeal to the County,
Circuit, and Supreme Courts of Mississippi.

For purposes of clarity, a resume of the facts in common
in all twenty-nine cases is presented first. Events are then

6 The sentencing portion of each of the 29 records is identical.
Record citations are indicated by name of defendant and page.

7 (R. Ackerberg 4, Adler 4, Aelony 4, Anderson 4, Bevel 4,
Bromberg 4, Copeland 3, Davidov 4, Donald 4, Farmer 4, Filner
4, Harbour 3, Knight 4, McDonald 4, McKinnie 4, Morton 4, Muse
4, Myers 4, Nixon 4, O’Connor 4, Patton 4, Perlman 4, Peterson
4, J. Pleune 4, K. Pleune 3, Randolph 4, Reed 4, Thomas 4, Van
Roland 4.)

described sequentially and by place of arrest as follows:
Trailways Continental Bus Station, Greyhound Bus Ter
minal and Illinois Central Railroad Station. Thereafter
follows a detailed exposition of the facts of all the cases
annotated by record citations.

Facts in Common8
Almost identical circumstances surrounded the arrests

of these twenty-nine petitioners. All were interstate pas
sengers protesting racial segregation in interstate bus and
train facilities. All were in racially mixed groups and all
were arrested by police immediately upon arrival in the
City of Jackson.

a 8 In the spring and summer of 1961, more than three hundred
“Freedom Riders,” including these twenty-nine petitioners at
tempted to use travel facilities on an unsegregated basis in Jack-
son, Mississippi. ̂ They were arrested, jailed and later charged
with violating Mississippi disorderly conduct—breach of the peace
statutes. (Title 11, §§2087.5 and 2089.5.)

Though the facts and charges were almost identical, the State
of Mississippi required a separate trial for each of the more than
three hundred persons arrested, including these twenty-nine peti
tioners. Trials were conducted at the rate of two per day over
a period of months. All were convicted. All were initially fined
two to five hundred dollars ($200,00-$500.00) and given sentences
ranging from sixty days suspended to four months in jail, not
suspended. Practically all sought trials de novo in the County
Court and posted bonds in the amount of five hundred dollars
($500.00) each to assure appearance. Two persons dismissed their
County Court appeals and served out their fines and sentences.
Fifty-four persons entered pleas of nolo contendere, paid fines
and costs and accepted suspended jail sentences. The rest pleaded
not guilty, had their convictions affirmed and sentences increased
to a fine of five hundred dollars ($500.00) and four months in
jail. Those appealing to the Circuit Court from County Court
convictions were required to post additional cash bonds of one
thousand dollars ($1,000.00) each, bringing bond to one thousand,
five hundred dollars ($1,500.00) per person. Indeed, bond costs
alone exceeds three hundred seventy-two thousand dollars ($372,-
000.00). Travel costs, counsel fees and other expenses have fur
ther increased the financial burden.

An additional fourteen thousand dollars ($14,000.00) was paid to
the Clerk of the Mississippi Supreme Court as security for prepara-

1 0

Captain of Police Ray testified in each case that he had
advance notice that petitioners were coming to Jackson
to “ create an incident.” He had numerous police officers
on the scene for the purpose of arresting them and a patrol
wagon parked outside to carry petitioners off to jail. In
each case, he alleged that “ ugly” crowds met petitioners,
though prosecution witnesses as well as petitioners con
tradicted Ray’s testimony. In no case did Captain Ray
arrest anyone in the crowd “ threatening” petitioners.

In no instance did Captain Ray inquire of petitioners
whether they had reason to be in the station. No allegation
was made that any of the petitioners committed any act of
violence or was anything but peaceful. The only evidence
of guilt is their mere “ presence” in the bus and train
terminals in racially mixed groups. In each case, imme
diately upon arrival they were ordered to “ move on and
move out of the terminal” and upon refusal, were arrested.

State statutes as well as an ordinance of the City of
Jackson required segregation in interstate bus and train
facilities (App. pp. 47a-57a). At all places of arrest there
were separate waiting rooms for Negro and white persons
designated by “ white” and “ colored” signs “ By Order of
Police.”

Hereafter follows the detailed facts upon which the
above summary is based.

tion of the twenty-nine records for this petition for certiorari. This
security, like all appearance and appeal bonds posted in these cases,
was in the form of cash as no surety bonds can be obtained by civil
rights demonstrators in Mississippi. See Memorandum of United
States as Amicus Curiae, pp. 2-4, on Motion for a Stay of Injunc
tion Pending Appeal, Bailey v. Patterson, 368 U. S. 346.

Collateral proceedings arising out of these incidents are reported
as follows: Bailey v. Patterson, 199 P. Supp. 595 (S. D. Miss. 1961),
vac. 369 U. S. 31; on remand 206 F. Supp. 67 (S. D. Miss. 1962) ;
aff’d in part and rev’d in part, 323 P. 2d 201 (5th Cir. 1963). See
also Z7. 8. v. City of Jackson, 318 P. 2d 1 (5th Cir. 1963).

1 1

A. Trailways Continental Bus Station:

1. May 24, 1961:

Petitioners Thomas, Farmer, Copeland, Patton, Donald,
Ackerberg, Anderson and Bevel9 boarded Trailways buses
in Montgomery, Alabama for Jackson, Mississippi on May
24, 196110 11 (R. Thomas 562-63). The buses arrived in Jack-
son under heavy police escort (R. Thomas 406).11 After

9 Petitioners Bevel’s and Anderson’s bus arrived in Jackson at
2 :00 p. m. (R. Bevel 18; Anderson 217). They were with a racially
mixed group of twelve (R. Bevel 18). Thomas, Farmer, Copeland,
Patton, Donald and Ackerberg arrived in Jackson together around
4:45 p. m. (R. Thomas 409, 444) with a group of fifteen (R.
Thomas 535). The facts governing the arrival of the two buses are
almost identical.

10 Petitioners had gathered in Montgomery, Alabama from vari
ous parts of the country (R. Thomas 311). Here they regrouped
and travelled to Jackson (R. Thomas 311, 368, 371). W. B. Padgett,
Alabama Department of Public Safety, testified:

“ I had read the itinerary [Freedom Rider] in newscasts, news
papers . . . after leaving Washington, D. C., it was from
Augusta, Georgia, to Atlanta, Georgia, southern part of Georgia
to Birmingham, Alabama; from Birmingham, Alabama to
Montgomery, Alabama; from Montgomery, Alabama to Jack-
son, Mississippi; from Jackson, Mississippi, to New Orleans,
Louisiana and lower end of Louisiana” (R. Thomas 374, 375).

11 Padgett was at the Alabama-Mississippi state line when the
first and second “Freedom Rider” buses crossed on May 24, 1961
(R. Thomas 394-398, 373, 377) and testified:

“ . . . After the first bus passed through the state line into
Mississippi, the officers escorting that bus from Montgomery
to the state line remained there until the second bus passed
through. That would have made . . . approximately twenty-
eight units of automobiles transporting state investigators,
highway patrol officers, National Guard, with each bus. There
were approximately five cars with heavy arms” (R. Thomas
399).

He also stated:
“At the time the [second] bus actually arrived at the line, . . .
there was one helicopter and two or three airplanes circling
the area, maintaining air surveillance over this area.

# # # * *

1 2

National Guardsmen and newspapermen unboarded (R.
Thomas 565; Farmer 25; Bevel 22-23), petitioners walked
quietly down the ramp between two lines of newspapermen
and policemen12 (R. Thomas 565, 593-594; Bevel 24) into
the white waiting room13 14 (R. Thomas 505, 606-607). Captain
of Police Ray testified that “ 50 or 60 people” were inside
the terminal including “ twenty-five” newspapermen (R.
Thomas 566, 617)11 and “ six or eight police officers.” About
75 policemen with three police dogs surrounded the bus
station (R. Bevel 19; Farmer 21).

Ray also testified that he had advance notice that peti
tioners were coming to Jackson to “ create an incident” and
was present at the terminal , “ to maintain law and order”
(R. Thomas 573-574, 613; Bevel 18). He stated that people
in the terminal were in a “ foul mood” and “ as they [peti

“ There was no incident . . . At the time the bus actually trans
ferred from Alabama to Mississippi, there were an estimated
one hundred highway patrolmen, and National Guardmen,
and a large group of Mississippi highway patrolmen and Mis
sissippi National Guard at the time of the actual transfer”
(R. Thomas 400).

12 Captain of Police Ray testified in Thomas:
“ The Trailways bus arrived about 4 :45 p. m., parked in loading
dock number eight, and after this bus stopped, a group of
National Guardmen got off the bus, then a group of news
papermen or reporters, people with cameras and so forth, got
off the bus; then a group of fifteen, of which Henry Thomas
was one of them got off the bus. They kind of stayed together
until they began walking down the ramp (R. Thomas 565).

# # # # #

“ They walked in the door to the waiting room” (R. Thomas
539).

13 The main waiting room located on the west side of the termi
nal was designated for white persons (R. Thomas 505, 507, 591-
592), with a smaller waiting room on the east side of the terminal
for Negroes.

14 Ray testified that “ thirty or forty” people were in the termi
nal when petitioner Bevel arrived (R. Bevel 18). See, too (R.
Farmer 19).

tioners] entered the terminal, feeling that it would be best
to get . . . the group . . . out of the bus station, in order to
prevent violence, I . . . ordered them to move on and to
move out of the terminal. They acted as though they did
not hear me even though I talked in a loud tone of voice”
(E. Thomas 571). However, he neither spoke to nor ar
rested persons allegedly threatening petitioners (E. Thomas
624; Bevel 28; Donald 34; Farmer 27; Ackerberg 73).

Wallace Dabbs, a reporter for the Clarion Ledger and a
prosecution witness, testified that petitioners caused no
violence at the time they entered the bus terminal (E.
Thomas 503, 513), and that they walked peacefully into the
white waiting room (E. Thomas 503, 505). Moreover,
“no incidents” or “ remarks of an offensive nature” oc
curred inside the terminal (E. Thomas 513, 631; Farmer
28), and police were “ maintaining superb order in the sta
tion” (E. Thomas 513, 514).15

Another prosecution witness, W. C. Shoemaker of the
Jackson Daily News testified that he saw no act of violence
committed either by petitioners or other persons in the
station (E. Ackerberg 52) and that the police had “ every
thing under control” 16 (E. Thomas 541, 544, 545, 546;
Farmer 38).

15 On cross-examination, Dabbs testified :
“ Q. So the upshot of it is that during the entire period

from the time that defendant arrived in the white waiting
room until you saw him taken away in the paddy wagon, you
saw no violence or anything untoward at all?

A. No.
Q. And the police had the situation outside on the street

as much under control as they had inside the terminal?
A. I would say so, yes.

# * * * *
Q. You saw no violence in Jackson whatsoever?
A. No; that’s true” (R. Thomas 517).

16 Shoemaker wrote an article on the May 24 events which
appeared in the Jackson Daily News on May 25, in which he stated
that when the “Freedom Riders” arrived only “ a few persons

(a) Bevel and Anderson

Petitioners Bevel and Anderson, both Negroes (R. Bevel
75-76; Anderson 239), arrived in Jackson on the first bus
around 2:00 p.m. in a racially mixed group of twelve (R.
Bevel 18; Anderson 217). Inside the terminal eight of them
went to the restroom while four walked to the concession
stand (R. Bevel 25; Anderson 218).

Captain Ray testified that he arrested the four at the
concession stand first and then went into the restroom and
arrested the other eight defendants (R. Bevel 30). Bevel,
Anderson and their companions were alone in the restroom
when Captain Ray entered and ordered them to “ move on
and move out of the terminal” (R. Bevel 25, 26; Anderson
228). They refused and were arrested (R. Bevel 26; Ander
son 219). Bevel and Anderson were quiet and peaceful at
all times (R. Bevel 34; Anderson 232).

(b) Thomas, Farmer, Copeland, Donald
and Ackerberg

These petitioners arrived on the second bus at 4 :45 p.m.
(R. Donald 14, 15; Farmer 20; Copeland 15-16, 25-26;
Ackerberg 48) in a group of “ fourteen Negroes and one
white” (R. Donald 51, 53). On entering the station they
were ordered immediately to “ move on and move out”
(R. Thomas 571; Farmer 25; Copeland 28; Donald 17;
Ackerberg 58, 64). When they did not respond they were
arrested and taken to the police wagon which had been
parked outside the terminal prior to their arrival (R.
Thomas 625-26). Petitioner Donald testified:

watched from the sidewalk a few blocks away.” He also stated
that the “police watched each arriving bus in the event more
'Freedom Eiders’ attempted to violate segregation laws” (R.
Thomas 543).

[W]hen I entered the Trailways bus station, several
of the persons who accompanied me to the Trailways
bus station were already being arrested, and I pro
ceeded to turn around, to leave along with another
companion of mine, and one officer said, ‘you wait here
too, you are under arrest.’ He asked my name, I gave
him my name, and he said, ‘you are under arrest also’
(E. Donald 54).

Petitioners were peaceful and quiet at all times (R.
Thomas 621, 629; Donald 22; Farmer 25, 26, 36; Copeland
35).

Captain Eay, however, felt that petitioners’ “presence”
could cause “possible” disorder (R. Thomas 613, 620):

Q. [T]he time you ordered defendant and his com
panions to leave, was there any act of violence com
mitted, up to this moment ?

A. Nothing other than their presence there, by which
a breach of the peace might have been occasioned (E.
Thomas 613).

Ray also testified:

Q. . . . So, the only disorderly act, if you can call it
that, in the waiting room, that you saw after the arrival
of the defendant and his companions, or saw anywhere
in the bus terminal, was the refusal to obey your order
to leave the station?

A. That was the only arrest made there and that was
the only disorderly conduct that had happened at that
time (E. Thomas 625).

In Ackerberg Ray stated:

Q. Now did you see any acts of violence committed
by the defendant . . .?

A. No, Ms presence there was what caused the vio
lence or would have caused it (E. Ackerberg 69).

2. May 28, 1961:
Petitioners Knight, a Negro (E. Knight 63), and Myers,

a white person (E. Myers 42), were arrested around 1:30
p.m. with seven other companions in the white waiting room
(E. Knight 31; Myers 15, 17).

Captain Eay testified:
They all came in together. After they got inside the
terminal, they split up. This defendant [Myers] and
three others stayed together, and the other four, they
moved to another part of the terminal, and then I gave
them an order (E. Myers 17).

When Myers refused to obey Eay’s order to move out of
the terminal he was arrested (E. Myers 18). Eay further
testified that everything was peaceful until Myers and his
group arrived, that a crowd was in the station in an “ugly
and angry” mood threatening to harm Myers (E. Myers
17), and that he “wanted to get the cause or the root of
the trouble out of there and this defendant and his group
was the cause or root of the trouble” (E. Myers 27). How
ever, Eay admitted that no overt act was committed against
Myers (E. Myers 27) and that Myers created no disturbance
himself (E. Myers 26, 32).

Q. All right, Captain Eay. Now, the defendant
walked in, and he goes immediately to a seat and sits
down. That’s right?

A. That’s correct.
Q. Did he do anything other than go immediately

to this seat and sir [sic] down?
A. No (E. Myers 27).

Petitioner Knight was arrested at the telephone booth
when, according to Captain Ray, “ other people in the station
started towards her” (R. Knight 24). No effort was made
to arrest these persons (R. Knight 24, 25). Ray stated
that Miss Knight:

[W]alked into the terminal . . . She walked in with
her group; they stopped. I ordered them to move on
and move out of the terminal. At that time this defen
dant and her group separated. This defendant walked
to the west-end of the waiting room to a telephone
booth (R. Knight 24).

Miss Knight was quiet and peaceful at all times (R.
Knight 23, 31-32).

Ray testified that “ 30 or 35” people were in the terminal
upon petitioners’ arrival along with “ 12 to 15” policemen
(R. Myers 16).

3. June 2, 1961 :

Petitioners Reed and McDonald arrived at the Trailways
terminal around 6:40 in the evening (R. Reed 16). Miss
Reed, a Negro (R. Reed 60) was arrested in the white
waiting room when she refused to obey Captain Ray’s order
to move out of the terminal (R. Reed 29). Ray testified:

Q. When you entered the waiting room, did you see
the defendant?

A. I did.
Q. Where was she at the time?
A. She was still walking. When I entered, she was

walking. She was walking to the news or concession
stand.

# # # # #

Q. Now, as the defendant entered the waiting room
and walked toward the concession stand, what did you
observe?

A. I observed the crowd. At that time it became in
an ugly, angry mood, and I determined that this defen
dant was the cause of the trouble.

# # # # #
Q. I see. And did you determine who they were

mad at?
A. At this defendant and her group.
Q. All right. Did you say anything to any of these

people at this time, this group of people?
A. I did not at that time.

# # # # #
Q. . . . Now, when you gave your order, what was

the defendant doing . . .?
A. . . . She was standing there.

# * # * #
Q. Now, what did you say to this defendant?
A. I ordered her to move on and move out of the

terminal.
Q. Did the defendant say anything, make any reply?
A. She stood there as though I had said nothing

(E. Eeed 27-29).

McDonald, a white person (R. McDonald 67) separated
from the group and entered the “ Negro” waiting room
where he was immediately arrested (R. McDonald 15, 16,
17).

C. R. Keys of the Jackson Police Department testified on
cross-examination :

Q. In other words, he wasn’t doing anything dif
ferent from the other people that came in prior to his
arrival that would cause disturbance in there?

A. Nothing other, only his presence.
Q. Only his presence?
A. That is correct (R. McDonald 33).

There were sixteen police officers in the terminal (R.
Eeed 17).

4. June 7, 1961:

Petitioner Randolph, a Negro (R. Randolph 67) and six
companions entered the Trailways terminal about 1 :10 in
the afternoon (R. Randolph 16). Captain Ray testified:

I arrived at the Trailways bus terminal . . . twenty
minutes before this defendant and his group arrived.
At that time, everything was peaceful, normal, people
going about their business in a normal way. This de
fendant and his group came in, they got off the bus;
they all waited together until they got their luggage.
They walked down the ramp together until they got
to the first waiting room, and at that time, three
went into that waiting room, and then this defendant
and two others continued on to the next waiting room,
and by that time people were beginning to mill around
and moving toward this defendant (R. Randolph 18).

He determined that Randolph was the “ root of the trouble,
he and his group” and ordered him to leave the terminal
(R. Randolph 19). Randolph refused and was arrested (R.
Randolph 19). Randolph was entirely peaceful and orderly
(R. Randolph 33).

B. Greyhound Bus Terminal:

1. May 28, 1961s

Petitioner McKinnie, a Negro (R. McKinnie 66), was
arrested around 5 :30 a.m. in the white waiting room of the
Greyhound bus terminal (R. McKinnie 15, 66).

Captain of Police Ray testified that McKinnie:

. . . Goes in the terminal, he kind of turns to the right
after he passes the ticket office and so forth, and there

2 0

is a water cooler there. He and six others were at the
water cooler, and that’s when I approached this de
fendant because the crowd was in an ugly and angry
mood after this defendant entered. I saw that there
was going to be trouble, I tried to determine the cause
of the trouble, and I found out the cause was this
defendant and his group. So, not wanting any dis
turbance or any violence, I was going to remove that
cause and I ordered this defendant and his group to
move on and move out of the terminal. I gave that
order twice, I asked if they understood the order and
if they were going to obey the order, and they did not
and that’s when I arrested them (R. McKinnie 22-23).

2. June 11, 1961:
Petitioners Aelony, Davidov, O’Connor and Morton, all

white persons (R. Aelony 103; Davidov 76; O’Connor 66;
Morton 69), arrived in Jackson from Memphis, Tennessee
(R. Aelony 50; Davidov 14; O’Connor 16). They were ar
rested as they entered the Negro waiting room of the Grey
hound terminal around 12:45 p.m. in a racially mixed group
of six (R. Davidov 16; Aelony 50).

Captain Ray testified that “ 25 or 35 people” were inside
the bus terminal and that they became “ ugly and angry”
when petitioners entered (R. Davidov 17; Aelony 46). In
order to prevent violence, he “ acted quickly” and asked
petitioners to move out of the terminal (R. Aelony 46, 47).
Petitioners refused and were arrested (R. Davidov 19). He
admitted that petitioners were peaceful, but stated that their
“ presence” created a disturbance.

Q. Now, Captain Ray, I believe you testified that
prior to this, and at this time, this defendant had said
or had done nothing, to indicate that it was his pur
pose to create a disturbance. I mean, he had done noth

2 1

ing, or he had said nothing, or he made no gesture that
indicated that he intended to create a disturbance?

A. No, his presence there was what created a dis
turbance.

Q. But he didn’t do anything?
A. No, he didn’t (R. Davidov 30, 31).

3. June 16, 1961:

Petitioners Pleune, Pilner and Adler, white persons (R.
Pleune 58; Filner 74; Adler 230), arrived in Jackson from
Nashville, Tennessee at 1 :10 in the afternoon (R. Filner 45,
46; Pleune 15) and were arrested as they entered the wait
ing room of the Greyhound terminal (R. Filner 42).

Petitioner Filner testified:
We got off the bus. There was five of us. We walked
into the waiting room, in the bus station. Sat down at
the counter, and I looked around and a police officer
came toward us. The other people kept watching with
curiosity. He [Captain Ray] came toward us and or
dered us to move on, and we didn’t, because it was our
constitutional right to be there, and he arrested us.

Q. Was there any indication, as far as you were
able to ascertain as to what mood these people were in?

A. Well, they didn’t cause any trouble. Of course,
some of these were watching what was going on . . .
just curious, I am sure. The police officer mentioned
they seemed to be advancing threateningly; I didn’t
notice any of this. As soon as we walked in, the police
officer came toward us (R. Filner 41-42).

Filner further testified that his group had been in the
station only a minute when the police walked up to them
(R. Filner 42), that they were peaceful and quiet and

2 2

simply wanted something to eat after a long trip (R.
Filner 42).

Captain Bay testified:

The bus pulled in. This defendant and the group
that he was with got off and walked inside the wait
ing room, and when they entered the waiting room,
people began to get up and moved toward them. That’s
when I felt it necessary to act, and act quickly, to pre
vent any violence. At that time, he had a seat at the
stool, and I ordered him to move on and move out of
there. I asked him if he’d heard the order and if he
was going to obey the order (R. Filner 19).

Petitioners were neither noisy nor violent (R. Filner 42).
Moreover, Eay could recall no actual threats against peti
tioners from the crowd (E. Filner 20-23).

C. Illinois Central Train Station:

1. May 30, 1961:

Petitioner Sandra Nixon, a Negro (R. Nixon 69), arrived
at the Illinois Central train station around 10:15 in the
morning (R. Nixon 15-17) with seven companions (R. Nixon
17). She entered the white waiting room and was im
mediately ordered to leave by Captain Ray who testified
that persons in the station became restless and threatened
to harm her (R. Nixon 20). Determining that petitioner
Nixon and her group was “ the cause or root of the trouble”
he ordered her to move out of the terminal (R. Nixon 18).
She refused and was arrested (R. Nixon 18). He did not
inquire of her business there and stated that she at no
time spoke to him (R. Nixon 27).

2. June 8, 1961:

Petitioner Perlman, a Negro (E. Perlman 61), arrived at
the train terminal at 10:10 in the morning. She was ar
rested upon entering the white waiting room with eight
others (R. Perlman 15, 20-21).

On cross-examination, Captain Ray testified:

Q. All right, sir. Now, Captain Ray, you said that
when the defendant entered the waiting room, that
you were in there, I believe, when she came inf

A. That’s correct.
Q. What was the disposition of the people who were

in the waiting room when the defendant came in?
A. After this defendant and her group entered, they

became in an ugly and angry mood, moved toward this
defendant, started mumbling to each other and that’s—

Q. Do you know— , pardon me.
A. And that’s when I determined the cause of the

trouble and felt it necessary at that time to remove
that cause and I ordered her to leave.

Q. Did you talk to any of these people?
A. At that time?
Q. At that time.
A. At that time, I did not (R. Perlman 23).

3. June 9, 1961:

Bromberg, a white person (R. Bromberg 37), was ar
rested at 5 :30 in the morning as he entered the train ter
minal with a. racially mixed group (R. Bromberg 14, 15, 20).
He was neither loud nor committed any act of violence (R.
Bromberg 22).

Ray stated that “ about fifteen” people were in the ter
minal (R. Bromberg 18) and about a dozen policemen (R.
Bromberg 20). He testified:

Q. Well, explain to the Court, if you would, why
with these other people you would ask them what
their business was before ordering them to move on,
whereas this defendant you ordered him to move on
without making any inquiries as to what his business
was?

A. Well, as I stated earlier, I was there to maintain
law and order. When this defendant and his group
entered, I felt it necessary to act and act quickly. I
didn’t feel like that I needed to go into a lengthy con
versation, because I was there to prevent violence.

Q. Was there a danger of violence that day?
A. Yes, sir.
Q. Now from whom did you fear the violence?
A. We didn’t know what to expect, but from the

remarks that had been made anything could have
happened.

Q. Well, were you afraid this defendant might be
come violent?

A. No, sir, but he was the root of the trouble.
Q. Did this defendant talk in a loud voice or curse?
A. No, sir.
Q. Or push anybody?
A. No, sir.
Q. Was he armed?
A. No, sir.
Q. Did he do anything out of the way, anything dif

ferent from what any other person ordinarily would
do in the train station?

A. No, sir (R. Bromberg 22-23).

4. June 20, 1961:

Petitioners Peterson, Van Roland, Pleune and Muse,
all white persons (R. Peterson 69; Van Roland 84; Pleune
73; Muse 84), refused to leave the Negro waiting room

when ordered to by Captain. Bay and were arrested along
with ten others (E. Peterson 17; Van Eoland 15; Pleune
17; Mnse 17). Petitioner Van Eoland testified:

I had my bag with me. I got off the train and walked
down a platform and down some stairs, I believe it was,
or a ramp into what was the terminal, the waiting room
in the terminal (E. Van Eoland 40).

. . . I walked into the waiting room and I decided that,
I wanted some lunch. So I asked the first officer that
I saw if there was a lunch room in the terminal. He
told me there wasn’t, so I decided I would just sit down
on the bench in the waiting room for a few minutes
until I could find out where there was a place to eat.
. . . I had just about got seated when Captain Eay
approached me and he asked me to move on. I asked
him why, and he didn’t tell me. He just ordered me
to move on again, and I didn’t see any reason for
doing so. And at that point Captain Eay placed me
and the people with me under arrest and put us in the
paddy wagon that was waiting outside (B. Van Eoland
42).

Van Eoland further testified that police were stationed
around the walls in the waiting room and that there were
no other persons in the station except the police (E. Van
Eoland 44).

Petitioner Muse, in the same group, testified:

. . . I was rather heavily loaded with baggage and was
the last one to get off the coach, and the others of the
group that I was traveling with, had gone into the wait
ing room by the time I got off the platform. As I ap
proached the waiting room, I heard voices and I arrived
in the waiting room to hear ‘on you all.’ I subsequently

learned that that was the last of two commands to move
on, and it was followed by an arrest, and we were put
aboard the jail wagon (R. Muse 39).

Muse was arrested in the Negro waiting room (R. Muse
41). He saw “ three colored persons sitting on benches”
in the waiting room. (R. Muse 41).

Captain Ray testified that Muse was present when he gave
the group both orders to move on (R. Muse 50). Moreover,
Ray stated that a crowd in the station was threatening peti
tioners at the time he arrested them (R. Muse 50, 51).

How the Federal Questions Were
Raised and Decided Below

Petitioners were convicted in the Municipal Court of
the City of Jackson, sentenced to sixty days suspended sen
tence and two hundred dollars ($200.00) fine, and appealed
to the County Court of Hinds County, Mississippi for trials
de novo. Pleas of not guilty were entered by all petitioners.

During trial in the County Court it was ruled that no
evidence would be permitted as to the race of petitioners
or racial segregation in travel facilities. Proof was of
fered at the end of trial that (1) an ordinance of the City
of Jackson, Mississippi and State statutes required racial
segregation on all common carriers (App. pp. 46a-57a), and
(2) petitioners used the racially segregated waiting rooms
on a racially desegregated basis.

At the conclusion of the State’s case petitioners filed
motions for directed verdict alleging:

(1) the State failed to prove the offense charged in the
affidavit;

(2) a conviction would deprive them of due process of
law secured by the Fourteenth Amendment to the United
States Constitution because there was no evidence of guilt;

(3) that Section 2087.5 under which they were charged
was unconstitutional on its face and as applied because
(a) vague, (b) it failed to warn them of the conduct pro
hibited, and (c) it penalized conduct constitutionally pro
tected under the First and Fourteenth Amendments to the
United States Constitution;

(4) the conviction would violate the Fourteenth Amend
ment’s equal protection clause, Article 1, Section 8, Clause
3 of the United States Constitution, as well as the Inter
state Commerce Act, 49 U. S. C. 316(d) (and interpretation
thereof by the Interstate Commerce Commission) in that
Section 2087.5 of Miss. Code Annot., 1942 as amended, and
as applied, denied them the right to use interstate bus
facilities on a racially desegregated basis and deprived
them of the right to move freely from state to state solely
because of race.17

The motions were denied and petitioners were convicted
and sentenced to serve four months in jail and five hun
dred dollars ($500.00) fine. Petitioners requested instruc
tions to the jury requiring the jury to bring in a verdict of
not guilty should they find that the only act committed by
petitioners was refusing to move when ordered to do so by
the arresting officer. The court refused the instruction and
the jury returned a verdict of guilty.

17 (R. Ackerberg 32; Adler 38, 228; Aelony 75; Anderson 237,
265; Bevel 45, 73; Bromberg- 36, 59; Copeland 39; Davidov 74;
Donald 44; Farmer 41; Filner 36, 53; Harbour 32; Knight 35;
McDonald 37; McKinnie 35; Morton 41, 67 ; Muse 31; Myers 35;
Nixon 43, 67; O’Connor 64; Patton 40 ; Perlman 33, 59; Peterson
39 ; J. Pleune 47 ; K. Pleune 29, 55; Randolph 34; Reed 32; Thomas
674; Van Roland 34.)

Motions for new trial alleging that the convictions were
contrary to the evidence and renewing objections raised in
the motion for directed verdict were also denied.18

Appeals were taken to the Circuit Court for the First
Judicial District of Hinds County alleging that the court
below erred in:

(1) denying the motions for directed verdict;

(2) overruling the motions for new trial;

(3) refusing to permit testimony that the terminals were
racially segregated by order of the Police Department, and
that petitioners were in racially mixed groups; and

(4) refusing to judicially notice §§4065.3, 2065.7, 2351.5,
2351.7 and 4259 of the Miss. Code and §225 of the Missis
sippi Constitution, and the Jackson city ordinance (Minute
Book “ FF,” p. 149) 1956, requiring segregation in travel
facilities. The Circuit Court affirmed the convictions.

On appeal to the Supreme Court of Mississippi peti
tioners again alleged that the court below erred in (1)
denying their motions for directed verdicts, (2) overruling
the motions for new trial, (3) sustaining objections to
the introduction of the ordinance of the City of Jackson
requiring racial segregation in travel facilities.

In Thomas the Supreme Court of Mississippi affirmed
the conviction and held that (1) the evidence supported the
arrest and conviction of defendant for disorderly conduct,
and (2) the conviction violated no state or federal law.
The court stated:

18 (E. Ackerberg 33; Adler 229; Aelony 101; Anderson 266;
Bevel 74; Bromberg 60; Copeland 66; Davidov 75; Donald 81;
Farmer 69; Filner 73; Harbour 65; Knight 62; McDonald 66J4 •
McKinnie 65; Morton 68; Muse 83; Myers 63 ; Nixon 68 ; O’Connor
65; Patton 68; Perlman 60; Peterson 68; J. Pleune 71; K. Pleune
56; Kandolph 66; Keed 63; Thomas 708; Van Roland 74.)

. . . In order for the State to convict under §2087.5,
Miss. Code 1942, Rec., the following elements must be
present: (1) There must be a crowding or congregat
ing with others; (2) defendant must be in a place of
business engaged in selling or serving members of the
public . . . ; (3) there must be an order given to dis
perse or move on by a law-enforcing officer of a mu
nicipality or county; (4) the order must be disobeyed;
and (5) the intent to provoke a breach of the peace,
or the existence of circumstances such that a breach
of the peace may be occasioned thereby.

The record in this case reflects the following: (1)
the defendant entered the terminal building in Jackson,
Mississippi, on the day in question in the company of
others; (2) the terminal is a place of business engaged
in serving or selling to members of the public; (3) an
officer of the Jackson Police Department ordered de
fendant to move on out of the area; (4) the defendant
refused to obey the officer’s orders and (5) the wit
nesses testified that at the time the defendant and his
companions entered the station, the crowd of people
already there became antagonistic toward defendant;
that if the officer had not acted in ordering defendant
to move on, there would have been violence (App.
p. 12a).

The court concluded:
In the case at bar the defendant not only knew the
situation but he came to the South for the deliberate
purpose of inciting violence, or, as he put it, “ for the
purpose of testing the Supreme Court decision in re
gard to interstate travel facilities.” He left a trail of
violence behind him in Alabama. The jury was, there
fore, warranted in finding that he intended to create
disorder and violence in Jackson, and that, in fact,

disorder and violence were imminent at the time when
Thomas refused to obey the police officer’s order to
move on (App. p. 14a).

# # # #

. . . We hold that the constitutional rights of defen
dant were not violated by his conviction for disorderly
conduct. The state’s interest in preventing violence
and disorder, which were imminent under the undis
puted facts, is the vital and controlling fact in this
case. If the defendant had been denied the exercise
of his right to enter the white waiting room, or to
assemble for the purpose of exercising the right to
protest or of free speech, his argument would be perti
nent. But defendant is in no position to claim that he
was merely exercising a constitutionally guaranteed
right, for it is manifestly true that he and his associ
ates participated in a highly sophisticated plan to
travel through the South and stir up racial strife and
violence. All of their activities were broadcast in a
manner to create the greatest public commotion and
uneasiness. When defendant and his companions
reached Jackson, the police had notice of all that had
transpired in Alabama. There is no evidence that the
police did anything other than keep the peace. They
did not deny defendant the right to enter the white
waiting room and were willing and ready to escort
defendant anywhere he wanted to go. This Court can
not escape the duty to accord to the police the authority
necessary to prevent violence, and this is true what
ever the motives of those who are about to cause the
violence, or to precipitate it. In the situation the police
found themselves, it was reasonable to require defen
dant to move on to wherever he wanted to go (App.
p. 26a).

In Farmer the court held that the circumstances “were
such that a breach of the peace was likely as a result of
the presence of the appellants and those congregated with
him,” and in Knight the court again found that the evi
dence supported petitioner’s conviction for disorderly con
duct. The remaining cases were affirmed without opinion,
merely citing Thomas and Farmer.

Following judgment in the State Supreme Court, sug
gestions of error were filed alleging, in essence, that:

(1) no evidence supported the convictions;

(2) the ordinance under which they were tried and con
victed is unconstitutionally vague and failed to warn them
of the conduct proscribed;

(3) the arrests and convictions were based upon a policy
of racial discrimination required by city ordinance; and

(4) the convictions violated Article 1, Section 8, Clause
3 in that petitioners were deprived of the right to travel
on a racially desegregated basis in interstate facilities.

Suggestions of error were overruled pursuant to which
this petition for writ of certiorari is filed.

Reasons for Granting the Writ

The decisions of the Mississippi Supreme Court conflict
with applicable decisions of this Court on important con
stitutional issues.

Petitioners’ Convictions Offend Due Process Because
Based on No Evidence of Guilt.

Petitioners, white and Negro interstate travelers, were
convicted under a disorderly conduct statute, which pun
ishes :

Whoever, with intent to provoke a breach of the peace,
or under circumstances such that a breach of the peace
may be occasioned . . . crowds or congregates with
others in . . . any place of business engaged in selling
or serving members of the public . . . and refuses to
disperse or move on, when ordered so to do by any
law enforcement officer . . .

That petitioners had a clear right to use bus and train ter
minal facilities in the City of Jackson, Mississippi, on a
racially unsegregated basis is indisputable, Boynton v. Vir
ginia, 364 U. S. 454; Gayle v. Browder, 352 U. S. 903;
Morgan v. Virginia, 328 U. S. 373; Bailey v. Patterson, 369
U. S. 373; 49 U. S. C. §316(d); 49 C. F. R. §180(a) (1)-(10)
(I. C. C. regulations prohibiting racial segregation in
terminal facilities serving interstate passengers), and un
disputed. Despite this clear right, however, and despite
petitioners’ entirely lawful attempts to exercise this right,
they were immediately arrested in the City of Jackson by
police officers who awaited their arrival in the terminals,
and were convicted. In Thomas, the Mississippi Supreme
Court held that “ the evidence shows that the officer arrested
the defendant in good faith, under reasonable apprehension
of an imminent breach of the peace” and that “ [t]he State’s

interest in preventing violence and disorder, which were
imminent under the undisputed facts, is the vital and con
trolling fact in this case” (App. p. 26a).

This holding is patent error. It flies in the face of the
records in these cases as well as repeated decisions of this
Court. Cooper v. Aaron, 358 U. S. 1, affirming 257 F. 2d
33, 38-39 (8th Cir. 1958); Watson v. Memphis, 373 U. S.
526; Wright v. Georgia, 373 U. S. 284; Buchanan v. Warley,
245 U. S .60.

In its opinion the Supreme Court of Mississippi stated
that:

. . . In order for the State to convict under §2087.5,
Miss. Code 1942, Rec., the following elements must be
present: (1) There must be a crowding or congregat
ing with others; (2) defendant must be in a place of
business engaged in selling or serving members of the
public . . . ; (3) there must be an order given to dis
perse or move on by a law-enforcing officer of a mu
nicipality or county; (4) the order must be disobeyed;
and (5) the intent to provoke a breach of the peace, or
the existence of circumstances such that a breach of the
peace may be occasioned thereby.

The record in this case reflects the following: (1) the
defendant entered the terminal building in Jackson,
Mississippi, on the day in question in the company of
others; (2) the terminal is a place of business engaged
in serving or selling to members of the public; (3) an
officer of the Jackson Police Department ordered de
fendant to move on out of the area; (4) the defendant
refused to obey the officer’s orders and (5) the wit
nesses testified that at the time the defendant and his
companions entered the station, the crowd of people
already there became antagonistic toward defendant;
that if the officer had not acted in ordering defendant
to move on, there would have been violence (R. Thomas
777-78).

The evidence in these cases clearly fails to meet the re
quirements for a finding of guilt under this statute. Not
only is the sole evidence of “ crowding or congregating” the
simple fact that petitioners arrived in groups,19 these rec
ords are barren of any indication that petitioners either
intended to provoke a breach of the peace or that a breach
of the peace was likely from their actions.

These petitioners did nothing unlawful. Captain of Police
Ray and other prosecution witnesses agreed that petitioners
were entirely peaceful and quiet at all times while in bus
and train terminals in the City of Jackson, Mississippi.
Not a single disorderly or violent act occurred in any ter
minal at any time.20 Indeed, Ray testified that he feared no
violence from petitioners. While an estimated “ crowd” of
white people were present in the terminals upon petitioners’

19 Indeed, several petitioners were arrested while sitting' or stand
ing alone or with a few other persons (R. Knight 247; McDonald
67; Van Roland 42).

20 Q. The time you ordered defendant and his companions to
leave, was there any act of violence up to this moment?

A. Nothing other than their presence there by which a
breach of the peace might have occasioned (R. Thomas 587).

# # * * *
Q. So the only disorderly act, if you can call it that, in the

waiting room, that you saw after the arrival of the defendant
and his companions, saw anywhere in the bus terminal, was
the refusal to leave—your order to leave the station?

A. That was the only arrest made there. That was the only
disorderly conduct that happened at that time (R. Thomas
599-600).

In Davidov, Ray testified on cross-examination:
Q. Now, Captain Ray, I believe you testified that prior to

this, and at this time, this defendant had said or had done
something to indicate that it was his purpose to create a dis
turbance. 1 mean, he had done nothing, or he had said noth
ing, or he made no gestures that indicated that he intended
to create a disturbance ?

A. No, his presence there was what created a disturbance.
Q. But he didn’t do anything ?
A. No, he didn’t (R. Davidov 30, 31).

arrival, numerous police officers were present to “maintain
law and order.” 21 The sole basis for petitioners’ arrest was
their mere “ presence.” 22

In each case Ray testified that he had “ advance notice”
of petitioners’ arrival, and was present at the terminals to
preserve “ law and order.” 23 In each case he stated that a

21 Ray gave estimates of between 35 and 50 people as present
in and around the terminals besides petitioners. However, a num
ber of newspapermen were included in this number. Moreover,
Ray’s testimony is weakened by an article written by Shoemaker,
a reporter for the Jackson Daily News and a prosecution witness
in several cases, who wrote that “only a few persons watched from
the sidewalk a few blocks away” (R. Thomas 543). And petitioner
Van Roland testified that when he arrived at the Greyhound bus
terminal, the police were the only persons present, while Ray spoke
of a “crowd.”

22 On another occasion C. R. Keyes of the Jackson Police De
partment testified:

Q. In other words, he was not doing anything different from
the other people who came in prior to his arrival that would
cause disturbance in there ?

A. Nothing, only his presence.
Q. Only his presence ?
A. That is correct (R. McDonald 33).

23 The principal evidence relied upon by the Court was Captain
of Police Ray’s testimony that he “ definitely believed there would
have been possibly a riot or some disturbance, and that possibly
bloodshed would have taken place” (emphasis added). The records
here utterly belie any such contention.

Ray and the Court also relied heavily upon the fact that some
of the petitioners had met with violence in Alabama. From this
the Court concluded in Thomas :

“ In the case at bar, defendant not only knew the situation but
he came to the South for the deliberate purpose of inciting
violence, or, as he put it, ‘for the purpose of testing the Su
preme Court decision in regard to interstate travel facilities.’
He left a trail of violence behind him in Alabama. The jury
was, therefore, warranted in finding that he intended to create
disorder and violence in Jackson, and that, in fact, disorder
and violence were imminent at the time when Thomas refused
to obey the police officer’s order to move on” (App. p. 14a).

The Court also pointed to the riots accompanying the attempt of
James Meredith to enroll at the University of Mississippi as evi
dence that a race riot might have ensued from petitioner’s presence.
However the Meredith case came after petitioners’ arrests.

“ crowd” was in the terminal which became in an “ugly and
angry mood” and began “moving towards” petitioners. Yet
Ray at no time spoke to the “ crowd” or ordered them to
move back or out of the terminals.24

Evidence of an “ imminent breach of the peace” is ren
dered even less credible in view of the numerous police
officers present when petitioners arrived in the City of
Jackson. Ray expressed confidence on several occasions
that he had everything under control, as did other prosecu
tion witnesses.25

That this evidence utterly fails to establish any conduct
by petitioners which constitutes a crime is patently clear,
and conviction under these circumstances is a manifest
denial of due process under the Fourteenth Amendment.
Thompson v. Louisville, 363 TJ. S. 199; Taylor v. Louisiana,
370 U. S. 154; Garner v. Louisiana, 368 TJ. S. 157; Wright

24 In Perlman, Ray testified:
Q. What was the disposition of the people who were in the

waiting room when the defendant came in ?
A. After this defendant and her group entered, they be

came in an ugly and angry mood, moved toward this defen
dant, started mumbling to each other and that’s—

Q. Do you know, pardon me—
A. And that’s when I determined the cause of the trouble

and felt it necessary at that time to remove that cause and
ordered her to leave.

Q. Did you talk to any of these people ?
A. At that time ?
Q. At that time.
A. At that time, I did not (R. Perlman 23).

25 Dabbs, a reporter for the Clarion Ledger, testified on cross-
examination :

Q. And the police had the situation outside on the street
as much under control as inside the terminal?

A. I would say so, yes.
When the first two buses arrived at the Greyhound terminal, Ray
had approximately 75 police officers in and around the station,
along with three police dogs. The “crowd” consisted of between
35 to 50 persons (R. Thomas 566; Bevel 19; Farmer 21).

v. Georgia, 373 U. S. 284. Mere “presence” of Negroes or
of Negroes and whites together in a public place is no
crime, Garner, supra, nor is failure to obey the command of
an officer when that command is itself violative of the Con
stitution. Wright, supra. Moreover, neither imagined nor
real resentment by others is grounds for denying important
constitutional rights. Cooper v. Aaron, supra; Edwards v.
South Carolina, 372 U. S. 229, 231, 232.

II.

The Statute Used to Convict Petitioners Is So Vague,
Uncertain and Indefinite as to Conflict With the Due
Process Clause o f the Fourteenth Amendment.

In three recent decisions, Edwards v. South Carolina,
372 U. S. 229, Fields v. South Carolina, 375 U. S. 44, and
Henry v. Roc~k Hill, ------ U. S. ------ (Decided: April 6,
1964), this Court has overturned convictions obtained
under a general breach of the peace statute where the
offense charged was “ so generalized as to be . . . ‘not
susceptible of exact definition.’ ” Here petitioners were
charged and convicted under a general disorderly conduct—
breach of the peace statute which punishes anyone who
intends “ to provoke a breach of the peace or under cir
cumstances such that a breach of the peace may be occa
sioned . . . crowds or congregates with others and refuses
to disperse and move on” when ordered by a law enforce
ment officer. As construed and as applied to petitioners,
this vague statute violates due process of law.

It has been shown that petitioners committed no unlawful
act and that when arrested they were simply exercising
lawful rights to use interstate travel facilities free of racial
discrimination. Petitioners had every reason to believe
their actions would be protected. Indeed, their right to be
where they were is nowhere contested. Captain Ray at no

time explained to petitioners the reason for their arrest
but simply ordered them to “ move on and move out of the
terminals.” At no time did he inquire concerning their
business in the station. Moreover, he allowed numerous
white persons to remain who were allegedly in an “ugly”
mood as a result of petitioners’ presence. In fact Kay did
not even speak to the many white persons milling around
the terminals after petitioners’ arrival.

To convict petitioners under these circumstances and
under such a broad, catchall statute is to deny due process.
No actual disturbance of the peace ensued nor was this re
quired under the Supreme Court of Mississippi’s construc
tion of the statute. No specific intent to provoke a breach
of the peace was necessary nor was conduct of a violent or
offensive nature. Indeed, “ intent to provoke a breach of the
peace” was held to be satisfied by the Mississippi Supreme
Court by looking at violence occurring days before in Ala
bama when “ Freedom Kider buses” passed through that
State, and Captain of Police Ray’s general opinion that
people in the terminals were in an “ugly and angry mood.”

To permit these convictions to stand would be to hold
Negroes or racially mixed groups susceptible to arrest and
conviction upon entrance in any public place in the State
of Mississippi. It would also render the constitutional
rights of one group of persons victim to the whim of others
if their mere presence offends the sensitivities of others.
Constitutional rights cannot be so treated. Wright v.
Georgia, 373 U. S. 254, Taylor v. Louisiana, 370 U. S. 154.

This statute does not warn that it punishes “ mere pres
ence” of Negroes and whites together in public places.
Petitioners did not and could not know that merely enter
ing a bus or train terminal was criminally punishable.
While no one would agree that the State of Mississippi

could make it a crime and punish Negro or white persons
who attempted to violate unconstitutional segregation prac
tices by merely appearing in public places, in effect that is
what has been done here. A person is entitled to fair warn
ing of what acts are forbidden. Connally v. General Con
struction Company, 269 U. S. 385, 393. See also, Lametta
v. New Jersey, 306 U. S. 451, 453 (“ No one may be required
at peril of life, liberty or property to speculate as to the
meaning of penal statutes.” ). Raley v. Ohio, 360 U. S. 423.

More invidious still is the use of this statute to prohibit
petitioners’ peaceful protest against racial segregation in
interstate facilities in the City of Jackson, Mississippi.
This Court constantly has warned that vague penal laws,
where freedom of expression is involved, cannot be toler
ated. NAACP v. Button, 371 U. S. 415, 433; Cantwell v.
Connecticut, 310 U. S. 296, 308, 311,

This statute offends due process for still another reason.
It provides no guide by which law enforcement officers may
direct persons to move on, but vests in them complete dis
cretion to determine when a person intends to provoke a
breach of the peace or “ circumstances such that a breach of
the peace may be occasioned.” In effect, the statute permits
a policeman to order a person about public establishments
for any reason he deems fit subject to the peril of criminal
punishment if he fails to comply. The invitation to official
abuse is well illustrated in these cases. Petitioners had a
right to use bus and train facilities in the City of Jackson
on the same basis as other citizens. Yet they were denied
this right because Captain of Police Eay alone determined
that other persons objected to the presence of racially mixed
groups. Not only were petitioners forced to relinquish their
constitutional rights, but they were criminally convicted.
Here, as was recognized in Nesmith v. Alford, 318 F. 2d
110, 121 (5th Cir. 1963):

. . . [LJiberty is at an end if a police officer may with
out warrant arrest, not the persons threatening vio
lence, but those who are its likely victims merely be
cause the person arrested is engaging in conduct which,
though peaceful and legally and constitutionally pro
tected, is deemed offensive and provocative to settled
social customs and practices. When that day comes
. . . the exercise of [First Amendment rights] must
then conform to what the conscientious policeman re
gards the community’s threshold of intolerance to be.

III.

These Convictions Constitute State Enforcement of
Racial Segregation in Interstate Facilities Contrary to
the Equal Protection Clause of the Fourteenth Amend
ment, Article 1, Section 8, Clause 2 (Commerce Clause)
of the United States Constitution and 49 U. S. C., Sec
tions 3 ( 1 ) and 3 1 6 (d ) .

The State of Mississippi is dedicated to the preservation
of racial segregation in all aspects of life, public and
private. 17 Miss. Code Ann., §4065.3 (Compliance with the
Principles of Segregation of the Races) provides:

[T]hat the entire executive branch of the government
of the State of Mississippi, and of its subdivisions,
and all persons responsible thereto, including the gov
ernor, the lieutenant governor, the heads of state de
partments, sheriffs, boards of supervisors, constables,
mayors, boards of aldermen, and other governing offi
cials of municipalities by whatever name known, chiefs
of police, policemen, highway patrolmen, . . . are
hereby required . . . to prohibit by any lawful, peace
ful and constitutional means, the causing of a mixing
or integration of the white and Negro races in public

schools, public parks, public waiting rooms, public
places of amusement, recreation or assembly in this
state by any branch of the federal government, any per
son employed by the federal government . . . and to
prohibit, by any lawful, peaceful and constitutional
means, the implementation of any orders, rules or
regulations of any board, commission or agency of the
federal government, based on the supposed authority
of said Integration Decisions, to cause a mixing or
integration of the white and Negro races in public
schools, public parks public waiting rooms, public
places of amusement, recreation or assembly in this
State. . . .

The Fifth Circuit Court of Appeals in United States v.
City of Jackson, 318 F. 2d 1, took judicial notice of Missis
sippi’s unyielding attitude on segregation. Judge Wisdom,
writing for the Court, stated:

We again take judicial notice that the State of Missis
sippi has a steel-hard, inflexible, undeviating official
policy of segregation. The policy is stated in its laws.
It is rooted in custom. The segregation signs at the
terminals in Jackson carry out that policy. The Jack-
son police add muscle, bone and sinewr to the signs (318
F. 2d 5-6).

At the time of petitioners’ arrest, a panoply of state
statutes required segregation in bus and train facilities:
Title 11, §2351 (separate railroad cars for Negroes and
whites); §2351.5 (railroads and other carriers required to
provide separate toilet facilities for intrastate passengers);
§2351.7 (separate waiting rooms for intrastate passengers) ;
Tit. 28, §7784 (separate accommodations in railroad travel);
§7785 (separate accommodations in street cars and buses) ;
§7786 (passengers on street cars, buses, etc., required to

occupy compartments assigned); §7787.5 (separate waiting
rooms in bus and train terminals to have “ bold letters”
designating “ white waiting room, intrastate passengers,”
“ colored waiting room, intrastate passengers.” Moreover,
an ordinance of the City of Jackson (Minute Book “F F ” p.
149, January 12, 1956) required signs designating “white”
and “ colored” waiting rooms in bus and train terminals
“ by Order Police Dept.” (see App. pp. 55a-57a). These stat
utes have been regularly enforced without distinction be
tween intrastate and interstate travelers. Reporter Dabbs’
article in the Jackson Daily News plainly stated “that the
police watched each arriving bus in the event more ‘Freedom
Riders’ attempted to violate segregation laws” (R. Thomas
543).

In Bailey v. Patterson, 199 F. Supp. 595 (1961), vac. 369
U. S. 31, an action brought by Negro plaintiffs to enjoin
enforcement of these segregation statutes and ordinances
in the State of Mississippi and City of Jackson, Judge
Rives, in his dissenting opinion, specifically found that
racial segregation was maintained in travel facilities. Bus
and train terminal officials admitted the existence of
“ white” and “ colored” signs and the Chief of Police of the
City of Jackson admitted that the signs were placed by the
Police Department pursuant to the City Segregation Ordi
nance. The Mayor of the City of Jackson testified:

Q. * * # Does the body of the ordinance, apart from
the preamble, reflect the policy of the City of Jackson
as you have stated it?

A. The policy of the City of Jackson is certainly
adopted in the ordinance, which is based on State law,
that is taken from State law, and is based on exactly
what I have said, the matter of separation of the races.

Judge Rives further found that state and city officials
met prior to the arrival of these and other petitioners on

May 24, 1961, and discussed plans for “ dealing with the
Freedom Riders” ; that Captain of Police Ray thereafter
arrested more than three hundred “ Freedom Riders” and
testified in most instances that their presence there “pro
voked people and caused them to become disturbed.” Judge
Rives concluded:

Captain Ray ventured the opinion that there might
have been incidents of violence had he not arrested
the Riders, but there is no indication that the situa
tion could not have been handled by restraining or
arresting the offending party (199 F. Supp. at 613).

# # # #
In this case, under the facts shown after a full trial
and the law applicable to these facts, I am unable to
find a bona fide breach of the peace issue. Rather, the
facts clearly show that the arrest [Freedom Riders]
are a simple evasion to enforce segregation (at 618).

That this is a blatant and deliberate case of state en
forcement of unlawful racial discrimination requires no
argument. These convictions which enforce Mississippi’s
declared law and policy of racial segregation are in clear
violation of Federal law. They violate the Fourteenth
Amendment (Gayle v. Browder, 352 U. S. 903; Lombard
v. Louisiana, 373 U. S. 264; Peterson v. Greenville, 373
U. S. 244), the Commerce Clause (Morgan v. Virginia, 328
U. S. 373), and the Interstate Commerce Act (49
U. S. C. §§3(1), 316(d); Boynton v. Virginia, 364 U. S.
458; Henderson v. U. 8., 339 U. S. 816; Mitchell v. V. 8.,
313 U. S. 80; NAACP v. St. Louis-8. F. R. Co., 297 ICC
335; Keys v. Carolina Coach Co., 64 Motor Carrier Cases
769).

IV.

These Convictions Conflict With First Amendment
Guarantees of Free Speech, Assembly and Association.

Petitioners’ attempt to use interstate facilities on a non-
segregated basis was protected by the First Amendment to
the United States Constitution. It is now clear that free
dom of speech encompasses non-verbal as well as verbal
utterances. Thornhill v. Alabama, 310 U. S. 88 (picketing);
Burstyn v. Wilson, 343 U. S. 495 (display of motion pic
tures) ; NAACP v. Alabama, 357 U. S. 449 (joining of as
sociations) ; Stromberg v. California, 283 U. S. 359 (display
of a flag or symbol). Indeed, a Negro sitting at a segregated
lunch counter in a southern state has been recognized as
engaged in a type of non-verbal expression protected by
the Fourteenth Amendment. Garner v. Louisiana, 368 U. S.
157, 185 (concurring opinion).

No question exists of petitioners’ right to use interstate
facilities free of unlawful racial discrimination. Plainly no
question exists of the propriety of petitioners’ protesting
unlawful racial discrimination in use of these facilities.

Edwards v. South Carolina, 372 U. S. 229, is controlling
here. There this Court reversed breach of the peace convic
tions obtained after almost two hundred Negro students
marched to the South Carolina State Legislature to protest
racial segregation. The students sang and chanted and after
forty-five minutes were ordered to disperse by law enforce
ment officials. Upon refusal they were arrested. While
white onlookers gathered, no evidence pointed to any of
fensive or threatening remarks or gestures by the growTd.
In reversing the convictions this Court stated that “ the
Fourteenth Amendment does not permit the state to make
criminal the peaceful expression of unpopular views.” See
also, Fields v. South Carolina, 375 U. S. 44; Henry v. Rock
Hill,------U. S . ------- (Decided: April 6, 1964); Cantwell v.

Connecticut, 310 U. S. 296, 308 (“ A state may not unduly
suppress free communication of views . . . in the guise of
conserving desirable conditions” ) ; Termmiello v. Chicago,
337 II. S. 1, 5.

As in Edwards, the records here are barren of any con
duct threatening or constituting a breach of the peace.
While a “ crowd” of white onlookers allegedly gathered
to watch petitioners, no violence occurred or was even
threatened and not a single incident of any kind by anyone
was cited. Indeed, Captain Ray was confident that he had
ample police available to maintain the peace.

For this reason as well as those stated earlier, this writ
of certiorari should be granted and the convictions reversed.

CONCLUSION

For the foregoing reasons, it is respectfully submitted
that the writ of certiorari should be granted.

Respectfully submitted,

Jack Greenberg
J ames M. Nabrit, III
D errick A. B ell, J r.

10 Columbus Circle
New York, New York 10019

J ack Y oung
Carsie H all

115% North Farish Street
Jackson, Mississippi

R. J ess B rown
125% North Farish Street
Jackson, Mississippi

Attorneys for Petitioners
Carl R achlin
L eroy D. Clark
M ichael Meltsner

Of Counsel

APPENDIX

APPENDIX I

1st the

SUPREME COURT OF MISSISSIPPI

No. 42,987

Opinion Below, Thomas v. Mississippi

H enry J. T homas,

vs.

State of M ississippi.

R odgers, Justice:
An affidavit was lodged with the City Police Court of

Jackson, Mississippi, charging defendant Henry J. Thomas
with disorderly conduct. The ex-officio Justice of the Peace
tried defendant and found him “ guilty.” He appealed to
the Hinds County Court. The case was tried anew, with the
aid of a jury, and the evidence was recorded. The jury
found defendant guilty, and from the sentence of the County
Court, he appealed on the record to the Circuit Court. The
Circuit Judge entered an order affirming the judgment of
the County Court, and from that judgment, the case has
oeen appealed to this Court.

The defendant was charged with violating §2087.5, Miss.
Code 1942, Rec., the pertinent parts of which are as fol
lows :

“ Section 2087.5 Disorderly conduct—may consti
tute felony, when,

“ 1. Whoever with intent to provoke a breach of the
the peace, or under circumstances such that a breach
of the peace may be occasioned thereby:

“ (1) crowds or congregates with others in or upon
* * # any other place of business engaged in selling or
serving members of the public * * * and who fails
or refuses to disperse and move on, or disperse or
move on, when ordered so to do by any law enforce
ment officer of any municipality, or county, in which
such act or acts are committed, or by any law enforce
ment officer of the State of Mississippi, or any other
authorized person * * *

“ * * * shall be guilty of disorderly conduct, which
is made a misdemeanor, and, upon conviction thereof,
shall be punished by a fine of not more than two hun
dred dollars ($200.00), or imprisonment in the county
jail for not more than four (4) months, or by both such
fine and imprisonment * * '* ”

The record in this case shows that defendant Thomas
is a Negro who resides at St. Augustine, Florida. He is a
student at Howard University in the City of Washington,
D. C. He learned that CORE (an organization known as
Congress of Racial Equality) was planning a series of bus
rides for the purpose of testing segregation laws, and he
volunteered his services as a bus rider. He then received
instructions as to how he should act when violence erupted;
that he should hold his hands by his side when he was
being beaten with bicycle chains. Extraordinary advance
publicity was given through the news media, advising the
public that various racially mixed groups, calling them
selves “ freedom, riders” , were enroute through Georgia,
Alabama, and Mississippi, with a “ stop over” at Jackson,

Opinion Below, Thomas v. Mississippi

Mississippi. The law enforcement officers of Alabama be
came apprehensive to such an extent that officers were as
signed to meet the busses in Atlanta, Georgia, and to ride
in the busses as they proceeded across Alabama.

On May 20, 1961, three groups of “ freedom riders”
reached Montgomery, Alabama, and a race riot occurred on
Sunday night, May 21, 1961. The Alabama officers testified
upon the trial of the instant case that the racial situation
in Alabama was extremely tense. Compare Abernathy v.
State, -------A la .------- , 155 So. 2d 586, where it is said “ four
teen hundred national guardsmen were on duty.”

When the busses in which defendant was a passenger
reached Anniston, Alabama, a large group of angry people
came up and beat on the bus and cursed the occupants,
including the officers in it. People lay on the pavement
in front of the bus, and others lay behind the bus, so that
the driver could not move without injuring them. Finally,
a sufficient number of police arrived to control the crowd.
When the bus left, many automobiles followed it until
the tires on the bus went down and it was brought to a
stop. A large crowd of people went up to the bus and
began to curse the occupants. A smoke bomb was thrown
into the bus and it caught fire. The police arrived and
after they fired their guns, the crowd retreated. The police
directed defendant and other members of his party to move
out to a place of safety, and they obeyed the officers. An
ambulance was brought to the scene and defendant and
other occupants of the bus were taken to the hospital.
Bus drivers refused to operate the busses occupied by de
fendant and his group of demonstrators, and defendant
went back to New York and regrouped under the leadership
of another individual. Defendant again accompanied a

Opinion Below, Thomas v. Mississippi

racially mixed group of persons on two busses through
Alabama and into Mississippi. This time they were ac
companied by Highway Patrolmen and a contingency of
Alabama National Guard to the Mississippi-Alabama state
line.

In the meantime radios broadcast details of the disturb
ance in Alabama. Television broadcast actual scenes of
the riots throughout Mississippi and Alabama, and news
papers left nothing undone in an effort to tell the Nation
the progress of the so-called “ freedom riders.” A great
many agents from the Justice Department preceded the
busses and “ lined the highways.” The people of Missis
sippi became highly outraged and incensed at what they
believed to be an invasion aimed at the tranquillity of the
peace of the people of Mississippi.

The testimony of a banker and an automobile dealer and
other prominent citizens of Jackson, Mississippi, indi
cated that a large percentage of the citizens of Jackson
was uneasy, and apprehensive that the activity of the
defendant and his companions was likely to incite a riot,
particularly in view of the notoriety given the so-called
“ freedom rider movement.”

The Mississippi National Guard and the Highway Patrol
men, armed with shotguns, and using helicopters to fly
over the convoy, met the busses at the Mississippi-Alabama
state line, for the purpose of protecting the caravan. Thus,
this entourage moved from the state line along the high
way, preceded by agents of the U. S. Justice Department,
toward Jackson, Mississippi. In the meantime, the police
department of the City of Jackson had been informed of
the progress of the group of racially mixed out-of-state
demonstrators, and also of the resentment, apprehension,

Opinion Below, Thomas v. Mississippi

and fear engendered in the minds of individuals hv the in
vasion, heralded by news media. The police used the local
radio to ask citizens to stay away from the area of the bus
station. The station was isolated by the police, and a cor
ridor was established around the block in which persons
and traffic were required to “move on.” Nevertheless, in
spite of the precautionary efforts of the police, groups of
men began to assemble outside the corridor; windows above
the street in air-conditioned buildings were opened and it
was observed that many persons were peering out of and
leaning from the windows. Policemen, who could be spared
from the picket line around the block, were stationed on
the ramp outside the bus station and eight or ten within
the station. Persons, who did not have a ticket, and those,
who could not show that they had business at the station,
were required to “ move on.”

The bus, in which defendant was a passenger, arrived
at Jackson, Mississippi’s Continental Bus Station at 4:45
P. M., May 24, 1961. The National Guard personnel de
barked and moved to their appointed positions outside
the bus station. Defendant, in company with his com
panions, proceeded up the ramp, passed by the colored
waiting room, and entered the white waiting room. Noth
ing was done to prevent or obstruct the group from enter
ing the white waiting room. Captain J. L. Ray was in
charge of the police at the station. He followed the defen
dant into the white waiting room. He testified that many
persons got up and moved toward defendant, and that he
observed the people were in an ugly mood. He said some
of the persons he had required to leave the bus station sug
gested “ if you let us handle this situation, we’ll get rid of
this out-of-town group coming here, causing all this trouble

Opinion Below, Thomas v. Mississippi

And he further stated: “As they entered the ter
minal, feeling that it would be best to get this defendant,
Henry Thomas, along with the group he was with, out of the
bus station, in order to prevent violence, I approached this
group of which Henry was a part, ordered them to move on
and move out of the terminal. They acted as though they
did not hear me, even though I talked in a loud tone of
voice . . . He further said: “ I definitely believe that there
would have been possibly a riot or some disturbance, and
that possibly bloodshed would have taken place.” He said:
“ I gave the order twice, then I asked if they refused to
obey the order, at which I received no response.” He said:
“ I was trying to prevent violence” , and when defendant
refused to move on, he was arrested. The officer stated
he would have been happy to have helped defendant get
to wherever he wanted to go.

Testimony shows that Jackson was the destination of
defendant, and there is no testimony as to why defendant
would not move out of the bus station after having reached
his destination, and after having asserted his right to enter
the white waiting room.

There were fifteen persons in the group, including defen
dant, and their names and addresses were as follows: Rev.
Grady H. Donald, 1423 Edgehill Avenue, Nashville, Tennes
see; John H. Moody, .Jr., 917 Wilcox Street, Petersburg,
Virginia; John L. Copeland, 2715 Torgett Street, Nashville,
Tennessee; Lucretia R. Collins, Fort Bliss, El Paso, Texas;
Peter M. Ackerberg, 5424 Arlington Avenue, New York
City; Clarence L. Thomas, Jr., 407 East Bradley Street,
Champagne, Illinois; Henry J. Thomas, Box 156-A, Elton,
Florida; Earnest Patton, Jr., 1429 John Johnson Avenue,
Nashville, Tennessee; James L. Farmer, 85 Bedford Street,

Opinion Below, Thomas v. Mississippi

New York City; John R. Lewis, 1800 White Creek Heights,
Nashville, Tennessee; Frank G. Holloway, 917% Tonty
Street, New Orleans, Louisiana; Doris J. Castle, 917 Tonty
Street, New Orleans, Louisiana.

I.
There are two questions presented by the appeal to be

determined by this Court, growing out of two areas of
legal concept: (1) Did the officer under the conditions
here prevailing have the right to arrest the defendant
for disorderly conduct within the meaning of §2087.5, Miss.
Code 1942, Ree.; and does the evidence support the con
viction? (2) Do the State and Federal Constitutions pre
vent the conviction of an individual under the circumstances
here shown because he claims at the time to be exercising
constitutional rights?

The pertinent part of §2470, Miss. Code 1942, Rec., states:
“ An officer or private person may arrest any person with
out warrant, for an indictable offense committed, or a breach
of the peace threatened or attempted in his presence;
* * #

Section 2469, Miss. Code 1942, Rec., states: “ Arrests
for criminal offenses, and to prevent a breach of the peace,
or the commission of a crime, may be made at any time
or place.”

A breach of the peace was punishable under the com
mon law, and was defined in its broad sense to include
any infraction upon the public order and tranquillity by
any act or conduct inciting to violence or tending to pro
voke or excite others to like conduct. 8 Am. Jur., §3,
Breach of Peace, p. 834.

Opinion Below, Thomas v. Mississippi

Personal violence was not a necessary element under the
common-law definition of breach of the peace. One text-
writer points out: “ If it were, communities might be kept
in a constant state of turmoil, fear, and anticipated danger
from the wicked language and conduct of a guilty party,
not only destructive of the peace of the citizens but of
public morals without the commission of the offense. The
good sense and morality of the law forbid such a construc
tion.” 8 Am. Jur., Breach of Peace, §3, pp. 834-835. More
over, an act which if committed at a certain time and place
would not amount to a breach of the peace, may constitute
a crime if committed at another time or place under dif
ferent circumstances, and whether or not the act is a breach
of the peace can only be determined in the light of circum
stances surrounding the act. State v. Hebert, 121 Kans.
329, 246 P. 507; 48 A. L. R. 81; Davis v. Burgess, 54 Mich.
514, 20 N. W. 540; State v. Reichman, 135 Tenn. 653, 188
S. W. 225; Shields v. State, 187 Wise. 448, 204 N. W. 486,
40 A. L. R. 945; State v. Christie, 97 Vt. 461, 123 A. 849;
8 Am. Jur., supra, §4, p. 835; State v. Cooper, 205 Minn.
333, 285 N. W. 903, 122 A. L. R, 727.

Under the pressure of modern metropolitan life, various
states have enacted laws on the subject of disorderly con
duct. It has been pointed out that under the authority
of some of these statutes, the failure to comply with the
orders of a policeman, such as an order to move on, or to
desist from picketing, may constitute disorderly conduct.
See 17 Am. Jur., Disorderly Conduct, §2, p. 188; Anno. 83
A. L. R. 788; Bennett v. City of Dalton, 25 S. E. 2d 726,
69 Ga. App. 438 (1943); People v. Hippie, 263 N. Y. 242,
188 N. E. 725 (1934); People v. Ward, 287 N. Y. S. 432,
159 Misc. 328 (1936); People, on Complaint of Whelan v.

Opinion Below, Thomas v. Mississippi

Friedman, 14 N. Y. S. 2d 389 (1939); People v. Hassock,
23 N. Y. S. 2d 520, 61 S. Ct. 733, 85 L. Ed. 1107 (1940-
1941); People v. Kieran, 26 N. Y. S. 2d 291 (1940); People
v. Levner, 30 N. Y. S. 2d 487 (1941); People v. Richards,
31 N. Y. S. 2d 457, 177 Misc. 912 (1941); People v. Lo-
Vecchio, 185 Misc. 197, 56 N. Y. S. 2d 354 (1945); State v.
Jasmin, 168 A. 545 (Vt. 1933); People v. Kopezak, 153
Misc. 187, 274 N. Y. S. 629 (1934).

The State of New York has such a law. McKinney’s Con
solidated Laws of New York, Book 39, Part 1, Penal Law,
§722, Disorderly Conduct, Anno., p. 383. This section makes
it a violation of the law to “ (3) Congregate with others on
a public street and refuses to move on when ordered by
the police; * * * ” .

In the case of People, on Complaint of Whelan v. Fried
man, 14 N. Y. S. 2d 389 (1939), the Court pointed out
that in the prosecution for disorderly conduct by holding
a public meeting on the street and refusing to obey a
police officer’s order to move on, defendant could not suc
cessfully claim that his constitutional rights of free speech
and to conduct public meetings in the street had been
violated.

In the case of People v. Galpern, 259 N. Y. 279, 181 N. E.
572, 83 A. L. R. 785, it was shown that four or five friends
were congregating on a public street and an officer directed
these persons, including defendant, to move on. The right
of the officer to make such an order was upheld under a
statutory provision specifically defining disorderly conduct,
including congregation with others, on a public street, and
refusal to move on when ordered by police, whereby a
breach of the peace may be occasioned. The Court held
that the statute applies even though defendant were con

Opinion Below, Thomas v. Mississippi

10a

ducting himself in an orderly and inoffensive manner, and
his acts were probably not unreasonable. The Court pointed
out that “ Police officers are not the final arbiters of the
rights of citizens * # * Reasonable discretion must, in
such matters, be left to them, and only when they exceed
that discretion do they transcend their authority and depart
from their duty. The assertion of the rights of the indi
vidual upon trivial occasions and in doubtful cases may be
ill-advised and inopportune. Failure, even though con
scientious, to obey directions of a police officer, not exceed
ing his authority, may interfere with the public order and
lead to a breach of the peace. Then the Legislature may
determine whether such conduct is ‘disorderly’, and shall
subject the individual to punishment.” See the following
cases upholding convictions for congregating with others:
Anno. 65 A. L. R. 2d 1152; People v. Bogin, 248 N. Y.
530, 162 N. E. 512; People v. Hippie, 263 N. Y. 242, 188
N. E. 725; People v. Hussock, 6 Misc. 2d 182, 23 N. Y. 2d
520, certiorari denied, 312 U. S. 659, 61 S. Ct. 733, 85 L. Ed.
1107; People v. Garvey, 6 Misc. 2d 266, 79 N. Y. S. 2d 456;
People v. Friedman, 6 Misc. 2d 266, 16 N. Y. S. 2d 925.

It has been said that the general outline for legislation
upon the subject in this country seems to have been fur
nished by the Statute of 5 George IY, Chap. 83, which was
a revision of pre-existing statutes of the same class. See
17 Am. Jur. 187, Note 2, Stoutenburgh v. Frazier, 16 App.
DC 229, 48 L. R. A. 220.

In State v. Taylor, 38 N. J. Super. 6, 118 A. 2d 36, the
defendant, who used loud and offensive language in inter
ference of the officer in the lawful discharge of his duty,
was convicted of assault and battery on a police officer.
Defendant appealed, and the appellate court sustained the

Opinion Below, Thomas v. Mississippi

11a

holding of the lower court. The record shows that two
police officers, patrolling a beat after midnight, noticed a
group of people, all Negroes, congregated around parking
meters at Springfield Avenue and West Street where their
automobile was parked. There had been numerous com
plaints about theft from parking meters, and so they walked
across the street to investigate. While the officers were
talking to the group, defendant came upon the scene and
pushed his way into the center of the group, demanding
to know what was going on. Upon being asked whether or
not he belonged to the group, defendant said he did not.
Whereupon, he was told that this was police business and
that he should be on his way. Defendant refused to move
and entered into a tirade against the officers. An altercation
ensued, and the Court held, in effect, that failure to obey a
police order to move on can be justified only where circum
stances show conclusively that the order was purely arbi
trary and not calculated in any way to promote public
order.

In the instant case, in order for the State to convict
under §2087.5, Miss. Code 1942, Rec., the following elements
must be present: (1) There must be a crowding or congre
gating with others; (2) defendant must be in a place of
business engaged in selling or serving members of the
public (or in one of the other places enumerated in the
statute); (3) there must be an order given to disperse or
move on by a law-enforcing officer of a municipality or
county; (4) the order must be disobeyed; and (5) the
intent to provoke a breach of the peace, or the existence of
circumstances such that a breach of the peace may be occa
sioned thereby.

Opinion Below, Thomas v. Mississippi

12a

The record in this case reflects the following: (1) The
defendant entered the terminal building in Jackson, Missis
sippi, on the day in question in the company of others;
(2) the terminal is a place of business engaged in serving
or selling to members of the public; (3) an officer of the
Jackson Police Department ordered defendant to move on
out of the area; (4) the defendant refused to obey the
officer’s orders and (5) the witnesses testified that at the
time the defendant and his companion entered the station,
the crowd of people already there became antagonistic
toward defendant; that if the officer had not acted in order
ing defendant to move on, there would have been violence.

It is argued, in effect, that defendant committed no vio
lence and since he was at a place he had a right to be, he
did nothing to provoke violence or a breach of peace, there
fore, his arrest was illegal, although the officer may have
had probable cause to believe other people were about to do
violence which was engendered by the fact that he exer
cised his right to be in the place where he was arrested.

The evidence in this case does not bear out the position
assumed by the defendant. The testimony shows that de
fendant was acting as an agent for an organization known
as “ CORE” ; that this organization desired to test the
segregation laws of certain states, and that in order to do
so, mixed groups of people were sent into this area after
advance extraordinary publicity was given, advising the
people in these states that waves of mixed “ freedom riders”
were enroute to their community. The defendant knew that
his activity and participation in a previous “ freedom ride”
into Alabama had precipitated violence and caused the burn
ing of a bus and the hospitalization of the occupants. Never
theless, the defendant “ regrouped with others” to return

Opinion Below, Thomas v. Mississippi

13a

to this troubled section of the country again to prove his
right, although he knew it was likely to “ stir up the people.”
The evidence shows he expected to cause violence. He ex
pected to be whipped with bicycle chains. In short, he
came to Jackson, Mississippi, under the auspices of CORE
to show his disapproval of segregation laws and to incite
violence in a series of incidents rather than as he claimed
to prove his right to travel unhampered in interstate com
merce. The defendant and his companions obviously re
alized that such a publicized invasion might create a holo
caust and race riot. It is common knowledge that such
activity has created serious riots not only in the South
but in other sections of the country. (See Note I.)

The officer in charge at the bus station testified, however,
that he knew the situation and repeatedly stated that a
riot was believed to be imminent. After the defendant and
his group had reached their destination at Jackson, Missis
sippi, and had proven their right to enter the white waiting
room, and the right to assemble, they were requested to
“ move on” . The officer in charge, in an attempt to control
the situation at a time when everyone was tense with fear
to such an extent that the mere striking of a door with a
kodak caused newsmen to jump—had a right to hold one
crowd back and tell another crowd or individual to “move
on.” Suppose the officer had not asked these people to “ move
on” , what then? It is not the business of a peace officer
to try a lawsuit, but it is his business to keep the peace.
The officer does not have a lawyer walking by his side ad
vising him what to do next, and he cannot have the same
calm deliberation as one may enjoy who reads of an inci
dent from a cold, printed page. Nevertheless, an officer is
not the final judge of his actions as a peace officer. His
conduct is always subject to review.

Opinion Below, Thomas v. Mississippi

14a

In Bullock v. Tamiami Trail Tours, Inc., 266 F. 2d 326,
a damage suit was brought by certain colored passengers
and his “ apparently white wife,” both of whom were natives
of Jamaica, for injuries from an assault which occurred in
Florida. The Court pointed out that it was the duty of the
bus company to notify foreigners of the custom of segre
gation in the South, and the Court said with reference to
the fact that plaintiff, a colored man, was sitting in the
front part of the bus with a white woman “ We can visu
alize no stronger case than this to show a situation where
two bus drivers and the bus company officials should have
reasonably anticipated that mischief was hovering about
and that the Bullocks were in some danger.”

In the case at bar the defendant not only knew the situ
ation but he came to the South for the deliberate purpose
of inciting violence, or, as he put it, “ for the purpose of
testing the Supreme Court decision in regard to interstate
travel facilities.” He left a trail of violence behind him in
Alabama. The jury was, therefore, warranted in finding
that he intended to create disorder and violence in Jack-
son, and that, in fact, disorder and violence were imminent
at the time when Thomas refused to obey the police officer’s
order to move on.

The Legislature may define disorderly conduct and pre
scribe punishment therefor. This is an offense proscribed
by statute or ordinance and is not cognizable as an offense
under the common law. When used in the legal sense of
conduct prohibited by statute, or ordinance, it has a well-
established meaning relating to public peace and good
order.

We have reached the conclusion in the instant case that
the acts of the. defendant, under the circumstances here in

Opinion Below, Thomas v. Mississippi

15a

volved, were sufficient to sustain his conviction under
§2087.5, Miss. Code 1942, Recompiled.

II.
We consider next the question: Does the claim of defen

dant that he was exercising his constitutional rights make
him immune from arrest and conviction for disorderly con
duct under the facts of this case 1

The gist of appellant’s argument is, first, that the de
fendant was a traveler in interstate transportation, and,
as such, he had the right to use the public facilities offered
by the bus company without discrimination, and that, since
he had traveled by interstate bus to Jackson, Mississippi,
he was immune from arrest although his acts might have
resulted in a breach of the peace.

In the outset, it should be remembered that the police
power to preserve the peace and tranquillity of the people
is reserved in the states subject to limitations imposed by
the state and federal Constitutions. See list of cases set
out under §255, 11 Am. Jur., Constitutional Law, p. 986;
also 16 C. J. S., Constitutional Law, §177, p. 906, §185, p.
922; Hart v. State, 87 Miss. 171, 39 So. 523; Donnell v.
State, 48 Miss. 661; State v. Armstead, 103 Miss. 790, 60
So. 778; State v. J. J. Newman Lumber Co., 102 Miss. 802,
59 So. 923.

The Fourteenth Amendment to the United States Con
stitution does not take away from states their police power.
11 Am. Jur., §261, Constitutional Law, p. 995; Barbier v.
Connolly, U. S. Rep. 113, p. 27 (Cal. 1885).

It is also generally recognized that it is the duty of the
states to preserve peace in interstate commerce and that
the states have the right to do so under the state police

Opinion Below, Thomas v. Mississippi

16a

power. If such were not true, the highways throughout this
nation would be permanently patrolled with Federal Agents.
See 11 Am. Jur., Constitutional Law, §265, p. 1002; State,
ex rel., Collins, Atty. Gen. v. Senatobia Blank Book & Sta
tionery Co., 115 Miss. 254, 76 So. 258.

It is pointed out in the case of St. Johnsbury and Lake
Champlain R. R. Company v. Hunt, 60 Vt. 588, 15 A. 186,
that in order to serve a process issued in a civil action, by
which he is commanded to arrest the body of the defendant,
a railroad engineer, an officer may lawfully stop a train or
cars run by such engineer, for the purpose of making the
arrest.

We do not believe the case of Boynton v. Virginia, 364
U. S. 454, cited by appellant, is in point in this case; there
the defendant was charged with having violated a trespass
statute.

In the case at bar the defendant and his companions had
debarked at their destination and had moved into the wait
ing room; they had passed the ticket window and their
business with the bus company was obviously concluded.
There was no good reason why defendant should not have
obeyed the officer and moved out of the situation which was
rapidly deteriorating into serious trouble, unless, of course,
the activities of the defendant were designed to aggravate
others and incite them to violence. In the present case it
is apparent that the officer acted in good faith, and with
reasonable cause, to prevent violence.

Feiner v. People of the State of New York, 340 IT. S.
315, 95 L. Ed. 295, 71 S. Ct. 303 (1950), is particularly
significant and pertinent to the constitutional issues here.
A young man was making a speech in a predominantly
Negro neighborhood, before a mixed audience of about 95

Opinion Below, Thomas v. Mississippi

17a

people, making derogatory remarks concerning public offi
cials and indicating that Negroes should rise up in arms
and fight for equal rights. In view of the excitement aroused
by his speech, a police officer asked him to stop, he ignored
these requests, and was arrested and convicted of disorderly
conduct. The New York statute is somewhat similar to Miss.
Code §2087.5. The New York Court of Appeals affirmed the
conviction. 300 N. Y. 391, 91 N. E. 2d 316. The United
States Supreme Court also affirmed. It gave considerable
weight to the good faith finding of the trial court that the
police officers were justified in taking action to prevent a
breach of the peace; that the officers were acting in good
faith, motivated solely by concern for preservation of order
and protection of the general welfare. The Court then said:

“ It is one thing to say that the police cannot be used
as an instrument for the suppression of unpopular
views, and another to say that, when as here the speaker
passes the bounds of argument or persuasion and un
dertakes incitement to riot, they are powerless to pre
vent a breach of the peace. Nor in this case can we
condemn the considered judgment of three New York
courts approving the means which the police, faced with
a crisis, used in the exercise of their power and duty
to preserve peace and order. The findings of the state
courts as to the existing situation and the imminence
of greater disorder coupled with petitioner’s deliberate
defiance of the police officers convince us that we should
not reverse this conviction in the name of free speech.”

We think Feiner is in point and applicable here.
In the case of Taylor v. Louisiana, 370 U. S. 154 (1962),

six Negroes were convicted in the state court of violating

Opinion Below, Thomas v. Mississippi

18a

Louisiana’s breach-of-tlie-peace law, and were fined and
sentenced to jail. Four of them went into a waiting room
customarily reserved for white patrons at a bus depot and
when requested by police to leave, they refused to do so,
claiming they were interstate passengers. The other two
were arrested while sitting nearby in an automobile which
had brought the six to the bus station. There was no evi
dence of violence before, but the trial court said that the
mere presence of Negroes in the white waiting room was
likely to give rise to a breach of the peace and was sufficient
evidence of guilt. The two petitioners sitting nearby in an
automobile which had brought the six to the bus station were
convicted of counselling and procuring the first four to
violate the law. In that case there was also testimony that
immediately upon petitioners’ entering the waiting room,
many of the people there became restless and some on
lookers climbed in the seats to get a better view. These
persons, however, moved, on order of the police. There
was no evidence of violence. The record shows that the
petitioners were quiet, orderly and polite. The trial court
said, however, that “ the mere presence of Negroes in a
white waiting room was likely to give rise to a breach of the
peace.” The United States Supreme Court said: “ Here,
as in Garner v. Louisiana, 368 U. S. 157, the only evidence
to support the charge was that petitioners were violating a
custom that segregated people in waiting rooms according
to their race, a practice not allowed in interstate trans
portation facilities by reason of the federal law.” The con
viction of the defendants was reversed.

The difference between the facts in Taylor and the in
stant case is obvious. There was no evidence to support
the charge in that case, whereas in the instant case the

Opinion Below, Thomas v. Mississippi

19a

evidence is overwhelming that the officer acted under the
police power of the State of Mississippi to preserve the
peace. It is one thing to say the interstate transportation
cannot be segregated and an entirely different thing to say
that people may incite violence by fanfare and action calcu
lated to incite violence.

The desire of the courts to protect the constitutional
rights of individuals should not result in curtailing, or tak
ing from the states the right and duty to preserve the
peace. Beer Company v. Mass., 97 U. S. 25 (1877).

In Garner v. Louisiana, 368 U. S. 157, 7 L. Ed. 2d 207,
82 S. Ct. 248 (1961), there was a consolidated appeal from
convictions in a Louisiana court under that state’s breach
of the peace statute. It defined disturbing the peace as
“ the doing of any of the following in such a manner as
would foreseeably disturb or alarm the public: * * * (7)
Commission of any other act in such a manner as to un
reasonably disturb or alarm the public.”

In Garner, two Negro students took seats in the lunch
counter of a drug store in Baton Rouge. In Briscoe, the
lunch counter at which seven students sought service was
in the restaurant section of the Greyhound Bus Terminal
in Baton Rouge. In Boston, seven Negro students took
seats at a lunch counter in Kress’s Department Store in
Baton Rouge. In all except Boston, the management did
not ask the defendants to leave. The manager at Kress’s
called the police, they arrived, and ordered the students to
leave. Petitioners did nothing except ask for service, and
the arresting officer said he “believed they were disturbing
the peace by sitting there.” When they declined to obey the
order to leave, they were placed under arrest by the officer.

The Court held that the convictions were so totally de
void of evidentiary support as to render them unconstitu

Opinion Below, Thomas v. Mississippi

20a

tional, under the Due Process Clause of the Fourteenth
Amendment; that they did not rest upon any evidence
which would support a finding that the defendants had
caused a disturbance of the peace. The Court assumed that
the Louisiana courts might construe the statutes to en
compass the traditional common-law concept of disturbing
the peace, and permitted the police to prevent an imminent
public commotion, even though caused by peaceful and
ordinary conduct on the part of the accused, but the court
pointed out that the defendants made no speeches, carried
no placards, and did nothing beyond their mere presence at
the lunch counter to attract attention to themselves or
others. The manager of Kress’s testified that he “ feared
some disturbance might occur.” However, this fear was
completely unsubstantiated by the record. The Court
pointed out that the police “who arrested the petitioners
were left with nothing to support their actions except their
own opinion that it was a breach of the peace for peti
tioners to sit peacefully in a place where custom decreed
they should not sit. Such activity, and the circumstances
of these cases, is not evidence of any kind, and cannot be
so considered either by the police or by the courts.”

In sharp contrast with Garner, the facts in the instant
case amply sustain appellant’s conviction under Code
§2087.5. The evidence shows that the officer arrested the
defendant in good faith, under reasonable apprehension of
an imminent breach of the peace.

We are cognizant of Edwards v. South Carolina, 372
U. S. 229, 9 L. Ed. 2d 697, 83 S. Ct. 680 (1962), where 187
Negroes, charged under the common-law crime of breach
of the peace, were convicted under the following facts: The
defendants gathered at a church and then walked to the

Opinion Below, Thomas v. Mississippi

21a

South Carolina Statehouse grounds in Columbia, the capital.
Their purpose was to protest their dissatisfaction with al
leged discriminatory actions against Negroes. Thirty-six
officers were present, and they were permitted within the
next thirty or forty minutes to walk single file or two
abreast in an orderly way through the grounds, carrying
placards. During this time 200 to 300 onlookers had col
lected, and during this period, there was no evidence to
suggest threats, but mere curiosity. The police advised the
defendants that unless they dispersed within fifteen min
utes they would be arrested. The Negroes declined to do so,
and they were arrested. The Supreme Court of South Caro
lina affirmed the conviction. The United States Supreme
Court on appeal accepted the South Carolina court’s deci
sion that the petitioners’ conduct constituted a breach of
the peace under the State law. But, on an independent ex
amination of the record, it concluded that South Carolina
infringed petitioner’s constitutionally protected right of
freedom of speech and assembly, and freedom to petition
for redress of grievances. Edwards did not involve any
substantial problem of balancing First Amendment rights
against the police power of the state. The instant case, on
the contrary, requires us to apply facts in a different con
text.

The question here is whether a state is constitutionally
prohibited from enforcing laws to prevent breach of the
peace in a situation where city officials in good faith be
lieved, and the record shows without dispute, that disorder
and violence were imminent, merely because the activities
constituting that breach involve claimed elements of con
stitutionally protected speech and assembly. The answer,
we think, is clearly in the negative, on the basis of the un

Opinion Below, Thomas v. Mississippi

22a

disputed facts in this record. The constitutional rights of
appellant to assemble with others and to freely express
his views are manifest. Yet they are and must be subject
to the preservation of good order, under the police power
of the state, where violence and disorder are imminent.

In People v. Kopezak, 274 N. Y. S. 629, the Court held
that, although defendants had the right as a group to gather
or assemble for lawful purposes to protest in peaceful
manner against injustices or oppressions, nevertheless, their
walking up and down the street in front of their landlord’s
premises, carrying signs asking for a rent-strike against
firetrap conditions, constituted disorderly conduct.

People v. Levner, 30 N. Y. S. 2d 487, involved hundreds
of pickets, members of a union and of organizations with
similar interests, who gathered with placards to picket the
mayor’s home at a time when he was on vacation. It was
held there was justification for the police officer’s order
for them to disperse, and those who refused to obey were
properly found guilty of disorderly conduct. The Court
pointed out that a police officer need not wait to take action
until the crime or disorder has occurred, since his obliga
tion is also preventive, and that the constitutional rights
of peaceful assembly and freedom of speech did not permit
the defendants to violate a law against disorderly conduct.

In People v. Richards, 177 Misc. 912, 31 N. Y. S. 2d 457,
where a Long Island State Park Commission concessionaire
operated a restaurant as a necessary facility in a state
park, there was no labor dispute in the record. Picketing
of park restaurant by female pickets in bathing suits carry
ing signs for the purpose of secondary boycott caused large
crowds to gather. The disobeying of an order of park
patrolmen constituted disorderly conduct, and a violation

Opinion Below, Thomas v. Mississippi

23a

of an ordinance of the commission prohibiting display of
advertising in parks and prohibiting parades except by
permit in parks and requiring all persons to obey orders of
local park officers did not violate the defendants’ right of
assembly and free speech; since these rights are relative
and may be regulated in the interest of all, and must be
exercised in subordination to the general comfort and con
venience and in consonance with peace and good order.

In People v. Burman, 154 Mich. 150, 117 N. W. 589, where
the court was considering a conviction of a defendant for
carrying a red flag in a parade in violation of an ordinance
relating to riots and disturbances, etc., (but which did not
in turn refer to the carrying of red flags) it was held that
the carrying of red flags in the parade violated the ordi
nance, and there is no constitutional right to display a red
flag in a procession where those composing the procession
know that the natural and inevitable consequence will be to
disturb the public peace and tranquillity, in violation of the
ordinance. Freedom of speech and assembly are not abso
lute, but may be restricted under the police power of the
state. Whitney v. California, 274 U. S. 357, 71 L. Ed. 1095,
47 S. Ct. 641; Hughes v. Superior Court, 339 U. S. 460, 94
L. Ed. 985, 70 S. Ct. 718; International Brotherhood v.
T. C. W. H. Union & Hanke, 339 U. S. 470, 94 L. Ed. 995,
70 S. Ct. 773; State v. Sugarman, 126 Minn. 777, 148 N. W.
466.

In People v. McWilliams, 22 N. Y. S. 2d 571 (1940),
the defendant was arrested under a charge of making an
anti-Semitic speech in violation of New York’s disorderly
conduct statute, §722, Subsecs. 1, 2, of the New York Penal
Law, viz:

Opinion Below, Thomas v. Mississippi

24a

“ Section 722 of the Penal Law reads in part as
follows:

“ Any person who with intent to provoke a breach of
the peace, or whereby a breach of the peace may be
occasioned, commits any of the following acts shall
be deemed to have committed the offense of disorderly
conduct:

“ 1. Uses offensive, disorderly, threatening, abusive
or insulting language, conduct or behavior;

“ 2. Acts in such a manner as to annoy, disturb, in
terfere with, obstruct, or be offensive to others; * # #

The Court’s opinion stated:

“ As recently stated by the Court of Appeals in a case
under section 722, ‘acts charged as disorderly conduct
must be public in character, and such as actually
do tend to disturb the public peace and quiet.’ People
v. Monnier, 280 N. Y. 77, at pages 78 and 79, 19 N. E.
2d 789, 790.

“ It is not essential that there be an actual breach
of the peace. People v. Nesin, 179 App. Div. 869, 167
N. Y. S. 49; People v. Bevins, 74 Misc. 377, 134 N. Y. S.
212, affirmed 149 App. Div. 935, 134 N. Y. S. 1141.

“ The test in each case is whether the defendant’s
conduct under the circumstances is likely to lead to
disorder or public disturbance. It will be seen that,
in applying this test, the courts have necessarily passed
judgment upon the competing social interests that
would be served by the defendant’s freedom of action,
and those served by penalizing his conduct and utter
ances as objectionable.

Opinion Below, Thomas v. Mississippi

25a

“ It has also been held that to violate the statute,
the threat need not be verbal; it may derive its signifi
cance from the circumstances. People v. Sinclair, 86
Misc. 426, at page 435, 149 N. Y. S. 54, affirmed People
on Complaint of Wilson v. Sinclair, 167 App. Div. 899,
151 N. Y. S. 1136.

“ The right to assemble peaceably in the streets and
public places of the city, like the right to distribute
literature, is protected against state interference by
the Federal Constitution. Hague v. Committee for In
dustrial Organization, 307 U. S. 496, 59 S. Ct. 954, 964,
83 L. Ed. 1423.

“ In that case, however, the court specifically said
that this right ‘may be regulated in the interest of all;
it is not absolute, but relative, and must be exercised
in subordination to the general comfort and conven
ience, and in consonance with peace and good order.’

-V,-fc -a- 'A ' -A'

“ As in the case of all ‘relative’ rights, the point at
which conduct in the course of a meeting becomes un
lawful must be ascertained by the words employed, the
intent of the speaker, the reaction of those there as
sembled and to some extent, where necessary, by bal
ancing conflicting social interests. Against the public
interest in freedom of discussion, it is necessary to
weigh ‘general comfort and convenience’ and the ‘peace
and good order’ of the community * # *

“ The opinion thus recognizes not only the power of
the State to punish abuses of the right, but its duty to
maintain order in connection with street meetings.
That duty is discharged, in this State, by the enforce
ment of section 722 of the Penal Law.”

Opinion Below, Thomas v. Mississippi

26a

In summary, we hold that the constitutional rights of
defendant were not violated by his conviction for disorderly
conduct. The state’s interest in preventing violence and
disorder, which were imminent under the undisputed facts,
is the vital and controlling fact in this case. If the defen
dant had been denied the exercise of his right to enter the
white waiting room, or to assemble for the purpose of exer
cising the right to protest or of free speech, his argument
would be pertinent. But defendant is in no position to
claim that he was merely exercising a constitutionally guar
anteed right, for it is manifestly true that he and his as
sociates participated in a highly sophisticated plan to
travel through the South and stir up racial strife and
violence. All of their activities were broadcast in a man
ner to create the greatest public commotion and uneasi
ness. When defendant and his companions reached Jack-
son, the police had notice of all that had transpired in
Alabama. There is no evidence that the police did any
thing other than keep the peace. They did not deny defen
dant the right to enter the white waiting room and were
willing and ready to escort defendant anywhere he wanted
to go. This Court cannot escape the duty to accord to the
police the authority necessary to prevent violence, and this
is true whatever the motives of those who are about to
cause the violence, or to precipitate it. In the situation
the police found themselves, it was reasonable to require
defendant to move on to wherever he wanted to go.

III.

Finally, it is contended that the statute (§2087.5) under
which defendant was prosecuted is so vague and uncertain
that it is void and unenforceable. Mississippi has not yet

Opinion Below, Thomas v. Mississippi

27a

passed on this question, but it appears that our statute is
somewhat similar to that of the New York Penal Law, Con
sol. Laws, p. 49, §722.

The New York court pointed out in People v. Hussock,
23 N. Y. 2d 520, cert, den., 312 U. S. 659, 61 S. Ct. 733, 85
L. Ed. 1107, that, “ It is clear from the record that although
the complaint especially charged a violation of subdivision
2 of said Section 722, the Court found defendant guilty of
refusing to move on when ordered so to do by the police
man. In other words, the conviction was based upon a
violation of Subsection 3 of said Section 722, pursuant to
which a person may be adjudged guilty of disorderly con
duct ‘who congregates with others on a public street and
refuses to move on when ordered by the police.’ * * * A
great deal of appellant’s brief is taken up by the conten
tion that Section 722 as applied by the Court below is un
constitutional in that it deprives defendant of his liberty
of assembly, freedom of speech and of the press and of
his liberty to worship according to the dictates of his con
science. * * * From a reading of the record we are of the
opinion that defendant was properly convicted # # * .”

In United States v. Harriss, 347 U. S. 612, the Court
held: “ If the general class of offenses as to which a statute
is directed is plainly within its terms, the statute will not
be struck down as vague, even though marginal cases could
be put where doubts might arise.” See: Roth v. United
States, 354 U. S. 476; Winters v. New York, 333 U. S.
507.

After careful analysis of §2087.5, Miss. Code 1942, Rec.,
we conclude that it is not vague and indefinite, and does
not deny appellant in this respect due process of law under
the Fourteenth Amendment to the Constitution of the
United States. The act points out in specific terms the

Opinion Below, Thomas v. Mississippi

28a

elements of the offense and the constituent elements of it.
See Amsterdam, The Void for Vagueness Doctrine, 109
U. of Pa. L. Rev. 67 (1960), reprinted in Selected Essays
on Constitutional Law, pp. 560-599 (1963).

We are therefore of the opinion that the order of the
circuit court affirming the judgment and conviction of the
defendant in the county court should be affirmed.

Conviction and Sentence of D efendant A ffirmed. A ll
J ustices Concur.

Note 1:

Under the authorities of this State, this Court can take
judicial notice of historical facts. Day v. Smith, 87 Miss.
395, 39 So. 526; Clark & Company v. Miller, 154 Miss. 233,
122 So. 475; Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505,
10 A. L. R. 2d 1425. This Court does take notice that the
citizens of Mississippi later (September 30, 1962) under
went the shock of such a riot at the University of Missis
sippi, in which lives were lost and property was damaged.
The President of the United States sent into Mississippi
some 32,000 regular Army troops, and these troops re
mained in Mississippi for many months.

Opinion Below, Thomas v. Mississippi

29a

I n the

SUPREME COURT OF MISSISSIPPI

No. 42,987

H enry J. T homas,

State of M ississippi.

Concurring Opinion, Thomas v. Mississippi

B rady, Justice, Specially Concurring:

I concur in tlie opinion of my colleagues, and suggest
these additional reasons why the verdict and sentence of
the trial court should be affirmed.

An objective, factual analysis of the circumstances which
existed at the time appellant was arrested clearly and un
equivocally distinguishes this case from the cases relied
upon by appellant in support of his contention that his
arrest was illegal, and violated his constitutional rights
of speech, assembly, non-segregated travel in interstate
commerce, and the due process clause of the Fourteenth
Amendment.

The cases cited in the majority opinion are Garner v.
Louisiana, where two Negro students took seats at a lunch
counter in a drugstore; Briscoe v. Louisiana, where seven
students sought service in the restaurant portion of a
Greyhound Bus Terminal; Hoston v. Louisiana, where
seven Negro students took seats at a lunch counter in a
variety store; and Taylor v. Louisiana, where four Negroes

30a

went into the white waiting room of a bus depot leaving
two companions outside sitting in the car which had brought
all six to the station.

The records prove that in all of the four cases cited
above the petitioners did absolutely nothing but seat them
selves and ask to be served. There is no trail of turmoil
and violence following the petitioners along their routes
to their destinations. No national racial organizations were
financing and master-minding their courses of action as in
the case at bar. No National' Guardsmen accompanied the
other petitioners, in a bus, in order that safe travel might
be afforded them, as was the case here. In these four cases
and all others cited by appellant there was no anticipated,
large-scale, exacerbated conflicts, no deliberate mass gen
eration of strife and turmoil, no sectional campaign strategy
involving several sovereign states with premeditated in
terstate movements synchronized and methodically executed
step by step, which, when interrupted by mob violence, re
quired a retreat and reforming of plans and procedures
and a recoaching and retutoring of the participants— all of
which is shown to exist in the case at bar.

In the four above cited cases, and in all the other cases
cited by appellant, we find the foregoing evidentiary facts
wanting. In addition thereto, in the cases relied upon by
appellant there was not, as is in the case at bar, a nation
wide, hourly publicity program carried on through the
media of television and radio hook-ups, which on the hour
or half-hour interrupted all programs to propagandize and
publicize the misnamed “ Freedom Eiders” sorties. In the
cases cited by appellant there were no fourteen hundred
National Guardsmen called into service to prevent mob
violence,— or seventy-five policemen who had to be detailed
to the bus stations to isolate the same by a cordon from

Concurring Opinion, Thomas v. Mississippi

contact with any persons save those properly using the
terminal.

The Attorney General’s Office and the Justice Depart
ment played no part in the four and other cases, but in the
case at bar a vital role was played and Department of Jus
tice officers accompanied the riders. In the four and other
cases cited by appellant there was little or no concern or
excitement, while in the case at bar, because of the pub
licity, propaganda, trail of violence aforesaid, excitement
and feeling had risen to a fever pitch so that when the
busses arrived carrying appellant (and his fourteen con
federates), all appellant had to do was to demurely enter
the bus station like a marionette with his fourteen con
federates. The stage of violence had already been set.

The perfectly executed, premeditated scheme of appel
lant, his associates, and affiliates, in which he played a
leading role, had already created by the aforesaid propa
ganda a highly volatile and explosive condition at the bus
station in Jackson, Mississippi, and the slightest incident
would have triggered the potential violence which would
have generated into a bloody riot.

The evidentiary support essential to justify the arrest
of the appellant was present. The order of the policeman
to move on was justified, not because of any subjective con
clusion in his mind, but by the objection realization that a
violent breach of the peace was emminent.

The case of Edwards v. South Carolina can afford but
little benefit to appellant for the reason that although there
were one hundred and eighty-seven Negroes who had left
their church and had walked single file or two abreast
around the Capitol grounds in an orderly manner carrying
placards protesting discriminatory action against Negroes,
the case is completely devoid of any of the premeditation,

32a

propaganda, exciting of public feeling, acts of violence,
and impending bloodshed as was present in this case. In
Edwards the police acted after thirty or forty minutes of
continuous parading because a curious crowd of some two
or three hundred persons had collected on the streets to
watch the picketing. The officers subjectively decided that
the marching would have to stop and the marchers disperse
within fifteen minutes or be arrested. The marchers did not
desist and were arrested. There was absolutely no impend
ing violence shown at the time of the arrest, but only the
possibility that it might arise. The distinction between
Edwards and this case is too obvious to merit further con
sideration.

The transcendent issue presented here is: Can a non
resident citizen, in a deliberate effort to prove a statute
of a state unconstitutional, while traveling in interstate
commerce, violate with impunity that statute and other stat
utes regulating the maintenance of peace, order and tran
quility within that State, and thus supersede or nullify
the State’s right to regulate and control its internal do
mestic affairs?

It is a corollary of durable judicial administration that
the judiciary must guard and protect the respective limited
powers of the separate branches of our State and Federal
governments, of which it is a part, and not be an instru
ment for, or participate in, any procedure or function which
is deliberately calculated to alter or destroy by judicial
decree or fiat the very foundations upon which that repre
sentative government reposes, and which likewise insures
the continued lawful and wise operation of that judiciary.
It is inherent in self-government that a State shall possess
the essential police powers and the right to exercise the

Concurring Opinion, Thomas v. Mississippi

33a

same in the maintenance of peace and order and in regu
lating and conducting its domestic affairs. Mass demon
strations, or threats thereof, intimidations, altercations and
violence, or conduct calculated to incite and produce the
same, are the antithesis of self-government under the law
geared to the maintenance of peaceful and orderly exist
ence.

These strife-fomenting junkets, planned by individuals
and groups erroneously called “ freedom riders,” and poorly
disguised as an exercise of constitutional guarantees, are
the harbingers of government operation, not under law
but under groups of men or committees, the highest ex
pression of which is represented by the Communist order,
throughout the world.

The collective rights of the citizens to enjoy peace and
order and be protected from breaches thereof are synony
mous with the State’s duty and right to maintain peace,
order and tranquility in its domestic affairs. There is noth
ing in the Constitution of the United States or amendments
thereto, and particularly the fourteenth amendment, which
gives preference to the individual rights of the citizens
of the various States over their collective rights as citi
zens thereof. As yet the rights of the individual citizen
of this country are not absolute and must yield to the rights
of the majority of citizens.

If there be a paramount right essential to the mainte
nance of orderly and peaceful self-government in the vari
ous states, it must be the right of the State to see that its
citizens are safe in their persons and in their property
from nationwide mass demonstrations, intimidations,
breaches of the peace and from disorderly conduct deliber
ately planned and calculated to cause breaches of the peace
and actual violence. The degree to which this collective
right of the citizens is successfully protected by the States

Concurring Opinion, Thomas v. Mississippi

34a

and subdivisions thereof varies directly with their respec
tive authority and power to maintain peaceful and orderly
conduct among all citizens—the primary objective of self-
government.

In order that the sacred individual rights of the citi
zens may not be impaired and may endure, it is imperative
that the various states be permitted to perform their in
herent, common law duties and prerogatives of maintain
ing peace and order among their citizens in all their varied
personal contacts and associations. The failure, refusal,
or prohibition of performance of this high duty of main
taining peace, tranquility, law and order on the part of
the States or the political subdivisions thereof is a posi
tive, certain and swift way to destroy completely all local
and State governments which compose this nation, and
thus create uncontrollable, endless turmoil and violence
and its inescapable ultimate— a ruthless, totalitarian or
monolithic State where the rights of the regimented indi
vidual count for naught.

Today when whirlwinds of strife, rebellion and revolu
tion are shaking the foundations of most of the civilized
nations of the world, because of the inability or a complete
failure on the part of those nations and subdivisions there
of to maintain peaceful and orderly conduct in the usual
and customary life of its citizens, we solemnly assert that
the premeditated plans of a group of nonresident citizens,
regardless of their social beliefs, political power or philoso
phy, economic or ethnic status to create strife and violence
in order to test the constitutionality of State laws or city
ordinances, cannot thereby vitiate or destroy the sacred,
nondelegable, inexorable duty which a city or State owes
to all its citizens to maintain peace and order. We hold
this to be true even though the group of nonresident citi

Concurring Opinion, Thomas v. Mississippi

35a

zens assert the subtle subterfuge that they are merely exer
cising their constitutional rights of freedom of speech,
assembly, and uninhibited passage in interstate commerce
in justification of their premeditated and well executed
conspiratory scheme.

A State which cannot, or will not, protect the safety of
all citizens and their property rights, which cannot, or will
not, exercise its inherent common-law police powers re
served and guaranteed to it, to regulate its internal do
mestic affairs in such a situation as is presented here,
has already lost its attributes and characteristics as a
sovereign state. It is, in fact, no longer a State but some
type of unautonomous association which exists merely be
cause of the sufferance of an all-powerful entity which
tolerates its existence.

With proper deference to all concerned, regardless of
constitutional subterfuge, legal sophistry, or judicial
legerdemain, the. communal sinister and divisive plots to
create antagonisms, to breed hatred, and produce violence
and bloodshed in this State among peoples of different
racial origin who have lived together harmoniously for al
most 200 years shall not become stark realities through
failure of this Court to recognize the inviolate constitutional
rights of the citizens of this and other states to lawfully
maintain peace, order and tranquility in their domestic
affairs by punishing those persons who deliberately flaunt
and violate their laws governing the same, and who simul
taneously demand constitutional immunity to do so.

For these additional reasons, in my opinion, the judg
ment of the trial court is affirmed.

M cE lroy and R odgers, ,J J J oin in T his Opinion.

Concurring Opinion, Thomas v. Mississippi

36a

Iw the

SUPREME COURT OF MISSISSIPPI

No. 42,983

Opinion Below, Farmer v. Mississippi

J ames L. F armer,

vs.

State oe M ississippi.

Gillespie, Justice:

James L. Farmer was charged by affidavit with viola
tion of Sec. 2087.5, Miss. Code of 1942, which denounces
disorderly conduct. A judgment of conviction in police
court was appealed to county court where trial de novo
was had and Farmer was again convicted. From that judg
ment he appealed to circuit court where the case was con
sidered on the record made in county court and the judg
ment was affirmed. Farmer then appealed to this Court.

On May 24, 1961, Jackson, Mississippi, was in a state
of crisis. The police had information that appellant and
others were coming to Jackson on a Continental Trailways
bus to create an incident or trouble. The bus from Mont
gomery, Alabama, was scheduled to arrive at 4:45 P.M.1
The excitement and anticipated difficulties attending ap

1 As a matter of interest, see Thomas v. State, No. 42,987, de
cided by this Court February 17, 1964. It is there reflected that
appellant was a fellow traveler with Thomas, defendant in that
case, and appellant and Thomas were arrested at the same time.

37a

pellant’s arrival in Jackson are indicated by the fact that
the Jackson Police Department had taken elaborate pre
cautions. Seventy-five policemen were dispatched to the
immediate area of the Continental Trailways Bus Terminal.
Officers were stationed on all streets in the vicinity of the
bus terminal, on parking lots, on the loading ramps at the
terminal, and inside the waiting rooms. People were not
allowed to congregate in the area and no one was allowed
to enter the immediate area of the terminal except those
having business there and newspapermen. The people gen
erally were required by the police to keep moving or other
wise do as the police directed. When the bus arrived from
Montgomery, a group of armed National Guardsmen got
off first, then appellant and his companions got off and
entered the waiting room wherein were twenty or more
newspapermen and twenty-five or more other people.

While no one actually attempted an assault on appellant
with any kind of weapon, the people in the terminal were in
an angry, ugly and violent mood and began converging on
appellant. Captain J. L. Ray, who was in. charge of the
police inside the terminal, and who was sent on this mis
sion to preserve the peace, ordered appellant to move on and
out of the terminal. Appellant ignored the order and
Captain Ray gave the order again. He then asked appellant
if he was going to obey the order. TJpon appellant ignor
ing Captain Ray’s order and question, he was arrested.
There is no evidence that appellant had any further busi
ness in the waiting room. The undisputed testimony of an
experienced police officer and a newspaperman was that the
circumstances were such that a breach of the peace was
likely as a result of the presence of the appellant and those
congregated with him. All the facts and circumstances sur
rounding appellant’s arrest were shown by the testimony
of Captain Ray and a newspaper reporter.

Opinion Below, Farmer v. Mississippi

38a

Tlie first question raised by appellant’s brief is whether
the proof was sufficient to sustain the conviction. We hold
it was. The constituent elements of the offense charged are
(1) a crowding or congregating with others, (2) in a place
of business engaged in serving the public, (3) the giving of
an order to disperse or move on by a proper officer, (4)
failure to obey the order, and (5) the existence of cir
cumstances such that a breach of the peace might be occa
sioned by refusal to obey the order. Thomas v. State, No.
42,987, decided February 17, 1964.

The first four stated elements were shown without ques
tion. The fifth element was also proven by sufficient evi
dence. The witnesses were of the opinion that the circum
stances were such that a breach of the peace would prob
ably have occurred. The circumstances attending the giving
of the order to move on were shown, and the jury had
ample evidence from which to draw an inference that a
breach of the peace was imminent unless appellant and
his party moved on to wherever they wished to go. It is
significant that appellant does not claim he had any further
business at the bus station. We hold that the evidence was
sufficient to sustain the jury verdict of guilty. Thomas v.
State, supra, and authorities there cited. The facts in the
present case are substantially the same as in Thomas, except
in Thomas there was evidence of the riots and violence
which attended the travels of the “ freedom riders” across
Alabama on their way to Mississippi, and some additional
testimony was offered of the excitement attending the
arrival of the “ freedom riders” in Jackson. Appellant con
cedes in his brief that the facts in the “ freedom rider” cases
(including Thomas) “ show a generally identical fact pat
tern.”

Opinion Below, Farmer v. Mississippi

39a

Appellant also contends that his conviction is invalid
because (1) it denies him the Federal right to unsegregated
interstate travel guaranteed by the interstate commerce act,
and (2) the statute as applied deprives appellant of equal
protection of law and due process of law guaranteed by
the Fourteenth Amendment to the United States Consti
tution, and (3) the statute as applied deprives appellant
of the right of freedom of speech, assembly, and association
guaranteed by the Fourteenth Amendment to the United
States Constitution, and (4) the statute on its face and
as applied is so vague as to amount to a denial of the due
process of law under the Fourteenth Amendment to the
United States Constitution.

These exact questions were raised in Thomas and were
duly considered and rejected by the Court in that case.
It would be useless to again discuss those questions.

The appellant did not testify. He offered no testimony
that ne was denied the right of free speech, protest, or
assembly for any lawful purpose, or to do any act relating
to travel. Appellant claims immunity from the laws of this
State making it a misdemeanor to disobey an officer when
the officer is making a reasonable effort to prevent a breach
of the peace, but offered no proof whatever that he was
in fact seeking to exercise any such guaranteed right. The
proof showed that Captain Eay acted in good faith in an
effort to keep the peace under exceedingly difficult circum
stances. It cannot be contended that Captain Eay acted
arbitrarily or capriciously. The right of the police to
manage people in situations such as that revealed by this
record must be upheld.

A ffirmed.

A ll J ustices Coxcur.

Opinion Below, Farmer v. Mississippi

40a

Opinion Below, Knight v. Mississippi

In the

SUPREME COURT OF MISSISSIPPI

No. 42,958

P auline E dythe K night,

vs.

State op M ississippi.

L ee, Chief Justice:

Pauline Edythe Knight was convicted by the Police Jus
tice of the City of Jackson, acting as an ex-officio Justice
of the Peace of Hinds County, Mississippi, of a violation of
Section 2087.5, Code of 1942, Rec., being a charge of dis
orderly conduct. She appealed to the County Court of
Hinds County where there was a trial de novo, resulting
in a verdict of guilty as charged. Thereafter she appealed
to the Circuit Court of Hinds County, where the judgment
and sentence was affirmed. She has prosecuted her appeal
to this Court.

Simply stated, the evidence was to the following effect :
The date and occurrence of this alleged offense was about
1 :30 P. M. on May 28, 1961, and the place was the Conti
nental Trailways Bus Terminal in the City of Jackson.
Captain J. L. Ray and a detail of other officers from the
police department of the City were sent to the Terminal
for the purpose of maintaining peace and order. They
dant and others were coming to the City of Jackson for
had advance notice, through police channels, that the defen-

4-la

the purpose of creating an incident. The officers put in
appearance at the Terminal prior to the arrival of the bus
and had heard citizens of Jackson and Hinds County ex
pressing themselves about the mission of such persons.
The condition in and around the Terminal at that time was
peaceful.

When the defendant and her group of seven others, after
disembarking from the bus, entered the west (white) wait
ing room of the Terminal, the mood of the fifty people,
including some newspapermen, on the inside, immediately
changed. It became “ugly and nasty.” The people began
to move in and toward the group. The officers saw expres
sions on the faces of the people and heard their talk about
this crowd and their accusations that the group were a
bunch of agitators and trouble makers. The defendant used
no vulgar or indecent language and made no unusual ges
tures; but she appeared to be afraid. At no time did she
advise the officers that she had business in the waiting
room, nor did she assert any claim that she was exercising
her right of free speech or any other right.

Captain Ray, seeing the change in the attitude of the
people, and deeming that the defendant and her group were
the root of the trouble, and believing that, under the cir
cumstances then existing, a breach of the peace was about
to occur, twice ordered the defendant and the other mem
bers “ to move on.” When they refused, he arrested all of
them.

The appellant has assigned and argued, in this case, the
same alleged errors on the part of the trial court as were
set out and argued in the case of Henry J. Thomas v. State,
No. 42,987, decided by this Court on February 17, 1964,
and not yet reported in the official reports. The opinion
in that case deals with those several questions and cites

Opinion Below, Knight v. Mississippi

42a

the authorities on which the affirmance of that case was
rested. See also James L. Farmer v. State of Mississippi,
No. 42,983, decided March 2, 1964, and likewise not yet
reported.

The reasons set forth in those cases and the principles
there enunciated also govern and control the decision in
this case. A further feature of these cases will be com
mented upon hereafter.

On cross examination of a State witness, counsel for
the defendant sought to establish the identification of the
defendant by race, but the objection of the State was sus
tained by the court. The defendant’s position was based
on the Fourteenth Amendment to the Constitution of the
United States and the objection should have been overruled.

Of course, the admission or exclusion of evidence must
result in prejudice and harm, if a cause is to be reversed
on that account. Rule 11 of the Revised Rules of the
Supreme Court of Mississippi 1953. Actually the record
discloses that, immediately before the State began the in
troduction of its evidence, the defendant was present and
was arraigned and entered a plea of not guilty. Obviously
the jury saw her at the time, and all during the trial, and
could tell whether she was a white person or a Negro.
Besides, after the State rested, counsel for the defendant,
with the consent of the court, made the statement into the
record, out of the presence of the jury, that the defendant
was a Negro and that she went into the west waiting room
of the Terminal, which was designated “white waiting
room.” In the first sentence of that brief, the appellant
asserts: “ The appellant was arrested on May 28, 1961, with
a racially mixed group shortly after they entered the white
waiting room of the Trailways Bus Terminal in Jackson,
Mississippi.”

Opinion Below, Knight v. Mississippi

43a

In the Thomas case, supra, the opinion, in note 1, ob
served that this Court can take judicial notice of historical
facts, and cited the following cases: Day v. Smith, 87
Miss. 395, 39 So. 526; Clark & Co. v. Miller, 154 Miss. 233,
122 So. 475; Moore v. Grillis, 205 Miss. 865, 39 So. 2d 505;
10 A.L.E. 2d 1425.

This Court, like everyone else, is somewhat conversant
with historical facts. Hence it knows that slavery, as a legal
institution, existed in this country from the earliest Colonial
days. That status continued unabated even after the Dec
laration of Independence was proclaimed to the world in
1776 and thereafter beyond the adoption of the Consti
tution itself. As a matter of fact, it took a cruel and
bloody civil war to uproot it from all sections of the coun
try. Even after the newly freed slaves were enfranchised,
there was little difference thereafter in the racial attitudes
insofar as social intercourse and acceptance were concerned.
Certain sections of the country, since the time when the
memory of man runneth not to the contrary, because of
physical traits and differences between the white and
colored races and other disparities, real to them although
perhaps imaginary to others, observed and practiced seg
regation of the races. Even the Great Crusader for Free
dom and the Emancipator of the Slaves recognized that
these differences placed a severe limitation on the full
measure of freedom for them. Separate schools, in many
areas, were provided. But suddenly the equalitarian doc
trine began to take root in the land and has apparently
met with substantial acceptance in recent years. Within a
decade novel constructions have nullified settled consti
tutional questions. Segregation in schools and in all means
of public transportation has been declared at an end by
judicial fiat. The cry by certain groups for conformity to

Opinion Below, Knight v. Mississippi

44a

their beliefs rings out endlessly over the land through the
various media of communications. Large numbers of peo
ple, in this broad land, are steeped in their customs, prac
tices, mores and traditions. In many instances, their be
liefs go as deep or deeper than religion itself. If, in the
lapse of time, these principles, sacred to them, shall be dis
proved, then it may be accepted that truth will prevail.
But, until those principles have been tested in the crucible
of time, no abject surrender should be expected, much
less demanded. History shows that there has always been
friction between different ethnic and religious groups in
varying degrees. Compare the intense animosity which has
existed between Jew and Arab, Greek and Turk, and Irish
and English. From the lessons of history, it has been
learned that “ though the mills of the gods grind slowly, yet
they grind exceeding small” and that human nature makes
little change from day to day, month to month, year to year,
and century to century.

In a free and civilized society, differences of opinion
will arise, and freedom of expression must be permitted
at proper times and in proper places. But a cardinal prin
ciple requires that the State must always have the power
to take such measures as may be necessary to prevent vio
lence among its disputant citizens. The Thomas case cites
Feiner v. New York, 340 U. S. 315, 95 L. Ed. 295, 71 S. Ct.
303, a 1950 case, which affirmed a conviction of the defen
dant on a charge of disorderly conduct growing out of his
inflammatory speech to an audience on the street in which
there was an appeal and exhortation to racial prejudice.
The opinion in the Thomas case pointed out the similarity
of the New York statute to Section 2087.5 of the Miss. Code.
It likewise cited the case of Bullock v. Tamiami Trail Tours
Inc,, 266 Fed. 2d 326, in which the United States Fifth

Opinion Below, Knight v. Mississippi

45a

Circuit Court of Appeals dealt with the measure of care
devolving upon a bus driver toward his passengers, namely,
a colored man and his “ apparently white wife” while sitting
together on the front seat of a bus in Florida. The opinion
in that case by Judge Rives pointed out that the employees
of the bus company should have notified these passengers
of the segregation customs in the South. The opinion said
in part: “ We can visualize no stronger case than this to
show a situation where two bus drivers and the bus com
pany officials should have reasonably anticipated that mis
chief was hovering about and that the Bullocks were in
some danger.”

This record, stripped down to the naked truth, estab
lished these facts: The authorities had advance notice that
the defendant and others in a racially mixed group were
coming to Jackson for the purpose of creating an incident.
There were a substantial number of people in the white
waiting room at the bus terminal and they were in a peace
able mood. When this group of Negroes and whites con
gregated in the white waiting room, the mood of the people
changed quickly, the people gave evidence of hostility, and
started toward them. The evidence showed that the officers
believed that a breach of the peace was imminent. Is the
officer helpless to do anything in order to avert violence!
Can it be expected that he shall constitute himself as a
magistrate, hold a hearing on the grounds, and decide the
relative questions then existing! Anger and rage throttle
reason; and, when reason is dethroned, force is the only
answer. Governmental force must be empowered to pre
vent violence and bloodshed. Regardless of rights, none of
which were then asserted, riots and bloodshed must be
averted; otherwise anarchy will prevail within the country.

A ffirmed.

A ll J ustices Concur.

Opinion Below, Knight v. Mississippi

46a

APPENDIX II

Mississippi Segregation Statutes

M ississippi Code of 1942
§ 2351—

“ If any person or corporation operating a railroad
shall fail to provide two or more passenger cars for
each passenger train, or to divide the passenger cars
by a partition, to secure separate accommodations for
the white and colored races, as provided by law, or
if any railroad passenger conductor shall fail to as
sign each passenger to the car or compartment of the
car used for the race to which the passenger belongs,
he or it shall be guilty of a misdemeanor, and, on con
viction shall be fined not less than twenty dollars nor
more than five hundred dollars.” Source: Code of
1892.

§ 2351.5—

“ Every railroad company, bus company or other
common carrier for hire owning, maintaining or oper
ating a passenger depot, bus station or terminal where
a waiting room for passengers is maintained and op
erated shall cause to be constructed and maintained
in connection with such reception or waiting room two
closets or retiring or rest rooms to be exclusively used
by white passengers in intrastate commerce arriving
and departing from such depot, bus station or terminal
and the following notice shall be painted or shown in
bold letters on the door of one: “ Rest Room, white
female only in intrastate travel” , and on the other:
“ Rest Room, white male only in intrastate travel” ;
and likewise two closets or retiring or rest rooms shall

47a

be constructed and maintained for colored passengers
in intrastate travel with like signs painted or shown
in bold letters on the doors thereof, substituting the
word “ colored” for “white” , and such owner or opera
tor shall see that the closets or rest rooms are equally
clean and in equally good sanitary condition.

“ No white person shall enter, frequent, occupy or use
the colored closets or rest rooms required by this act,
and no colored person shall enter, frequent or occupy
or use the white closets or rest rooms required by this
act, except, however, regularly employed person's of
the owner or operator of the passenger depots, bus
stations or terminals may enter such closets or rest
rooms in the discharge of their assigned duties.

“ Any person violating the provisions of this act shall
be guilty of a misdemeanor and upon conviction thereof
shall be fined not more than one thousand dollars
($1,000.00) or confined in jail for not more than one
year, or both.” Source: Laws of 1956.

§ 2351.7—
“ 1. Any person traveling in intrastate travel by

rail, bus, airline or other common carrier for hire who
knowingly or wilfully enters or attempts to enter the
waiting room not marked and provided for persons
other than his or her race as required by law, shall
be guilty of a misdemeanor and upon conviction
thereof, shall be fined not more than one thousand
dollars ($1,000.00) and imprisoned in jail not more
than sixty (60) days, or both such fine and imprison
ment.

Mississippi Segregation Statutes

48a

“ 2. No white person shall enter, frequent, occupy
or use the colored waiting room of any depot, bus
station or terminal when such waiting room is marked
in bold letters as required by law; and no colored per
son shall enter, frequent, occupy or use the white
waiting room of any depot, bus station or terminal
when same is marked in bold letters as required by
law, except, however, regularly employed persons of
the owner or operator of depots, bus stations or termi
nals may enter same in the discharge of their assigned
and required duties.

“ Any person violating the provisions of this section
shall be guilty of a misdemeanor and upon conviction
thereof shall be fined not more than one thousand dol
lars ($1,000.00) and imprisoned in jail for not more
than one year, or both.

“ 3. No action or suit in law or in equity may be
brought in any court of this state against any law
enforcement officer for damages for false arrest of
any passenger because of a violation of this act, nor
shall any common carrier of passengers, or its em
ployees be subject to suit for damages on account of
such common carrier of passengers or its employees
complying with the provisions of this act.

“4. In the event any part or parts of this act shall
be held unconstitutional, the remaining portion of this
act shall remain in full force and effect,” Source:
Laws of 1956.

§ 7784—

“ Every railroad carrying passengers in this state
shall provide equal but separate accommodations for

Mississippi Segregation Statutes

49a

the white and colored races by providing two or more
passenger cars for each passenger train, or by dividing
the passenger cars by a partition to secure separate
accommodations; and the conductor of such passenger
train shall have power, and is required, to assign each
passenger to the car, or the compartment of a car,
used for the race to which such passenger belongs;
and should any passenger refuse to occupy the car to
which he or she is assigned by the conductor, the con
ductor shall have power to refuse to carry such pas
senger on the train, and for such refusal neither he
nor the railroad company shall be liable for damages
in any court.” Source: Code of 1892.

§ 7785—
“ All persons or corporations operating street rail

ways and street or municipal buses, carrying passen
gers in this state, and every common carrier by motor
vehicle of passengers in this state as defined by sec
tion 3 (e) of chapter 142 of the laws of 1938 (§7634,
Code of 1942), shall provide equal, but separate, ac
commodations for the white and colored races.

“ Every common carrier by motor vehicle of passengers
in this state, as defined by section 3 (e) of chapter
142 of the laws of 1938 (§7634, Code of 1942), by
buses or street cars operated entirely within the cor
porate limits of a municipality, or within a radius of
5 miles thereof, shall divide its passengers by the use
of an appropriate sign 4 x 9 inches, for the purpose
of, and in a manner that will “ suitably provide for,
a separation of the races, and all other buses and
motor vehicles carrying passengers for hire in the

Mississippi Segregation Statutes

50a

state of Mississippi shall use a latticed movable par
tition extending from the top of the seat to the ceiling
of the vehicle, said partition not to obstruct the view
of the driver of the vehicle to secure such separate
accommodations; provided, however, that this act
shall not apply to buses operated exclusively for the
carrying of military personnel; and the operators of
such passenger buses shall have power, and are re
quired, to assign each passenger to the compartment
of the bus used for the race to which such passenger
belongs; and in no case shall any passenger be per
mitted to stand in the aisle of the compartment in
which he does not belong and is not so assigned; and
should any passenger refuse to occupy the compart
ment to which he or she belongs and is assigned, the
operator shall have the power to refuse to carry such
passenger on the bus; or should either compartment
become so loaded in transit as not to permit the taking
on of any further passengers for that compartment,
then the bus operator shall not be required and shall
refuse to take on any further passengers in violation
of this act. Even though such additional passengers
may have purchased and may hold tickets for trans
portation on the said bus, the only remedy said pas
sengers shall have for failure or refusal to carry them
under such circumstances is the right to a refund of
the cost of his ticket, and for said refusal in either case
neither the operator nor the common carrier shall be
liable for damages in any court. Such partition may
be made movable so as to allow adjustment of the
space in the bus to suit the requirements of traffic.”
Source: Code of 1956.

Mississippi Segregation Statutes

51a

Mississippi Segregation Statutes

§ 7786—

“ The operators of such street cars and street buses
and motor vehicles, as defined by chapter 142 of the
laws of 1938 (§§ 7632-7687, Code of 1942) shall have
power and are required to assign each passenger to
the space or compartment used for the race to which
such passenger belongs.

“Any passenger undertaking or attempting to go into
the space or compartment to which by race he or she
does not belong shall be guilty of a misdemeanor, and
upon conviction, shall be liable to a fine of twenty-five
dollars ($25.00), or, in lieu thereof, by imprisonment
for a period of not more than thirty (30) days in the
county jail; and any operator of any street car or
street bus or motor vehicle as herein defined, assign
ing or placing a passenger to the space or compart
ment other than the said one set aside for the race to
which said passenger belongs shall be guilty of a mis
demeanor and, upon conviction, shall be liable to a
fine of twenty-five dollars ($25.00), or, in lieu thereof,
to imprisonment for a period of not more than thirty
(30) days in the county jail.” Source: Code of 1906.

§ 7786.01—

“Every person or corporation operating street rail
ways and street or municipal buses, carrying, pas
sengers in this state, and every common carrier of
passengers in this state by motor vehicle, as defined
by section 3 (e) of chapter 142 of the laws of 1938
(§7634, Code of 1942), guilty of wilful and continued
failure to observe or comply with the provisions of
this act shall be liable to a fine of twenty-five dollars

52a

($25.00) for each offense, and each day’s violation of
the provision hereof shall constitute a separate vio
lation of this act; provided, however, that in the case
of persons or corporations operating street railways
and street or municipal buses, the fine shall be ten
dollars ($10.00) instead of twenty-five dollars ($25.00).”
Source: Laws of 1944.

§ 7787—

“ All officers and directors of street railway com
panies who shall refuse or neglect to comply with the
provisions and requirements of the two preceding
sections shall be deemed guilty of a misdemeanor, on
conviction shall be fined not less than one hundred dol
lars or be imprisoned in the county jail not less than
sixty, and not more than six months, and any conduc
tor or other employee of such street car company
having charge of the same, who shall refuse or neglect
to carry out the provisions of this chapter shall, on
conviction, be fined not less than twenty-five dollars
or be imprisoned in the county jail for not less than
ten days nor more than thirty days for each and every
offense; provided, that nothing herein contained shall
be construed as applying to nurses attending children
of the other race.” Source: Code of 1906.

§ 7787.5—

“ 1. In all passenger depots, bus stations or termi
nals owned, operated or leased in the State of Mis
sissippi by a railroad company, bus company or any
other common carrier of passengers, the owner or
operator thereof shall cause to be constructed and

Mississippi Segregation Statutes

maintained waiting or reception rooms as will secure
the comfort of the passengers.

“ In such depots, bus stations or terminals there shall
be constructed, provided and maintained for the white
intrastate passengers a separate waiting or reception
room, on each entrance to which shall be painted or
shown in bold letters the following:—“ White waiting
room, intrastate passengers” ; and in such depot, bus
station or terminal there shall be constructed, pro
vided and maintained a separate waiting or reception
room for the colored intrastate passengers, on each
entrance to which shall be painted or shown in bold
letters the following:—“ Colored waiting room, intra
state passengers.”

“ 2. Any common carrier of passengers for hire
or any railroad or bus company, whether an individual
or corporation, which fails or refuses to comply with
the provisions of this act shall be liable in the penal
sum of one thousand dollars ($1,000.00) per day for
each day of such failure or refusal, to be recovered by
suit filed in the county in which such depot, bus
station or terminal is situated, by either the attorney
general, the district attorney of the district, or the
county attorney of the county in which said passenger
depot, bus station or terminal is situated.

“ In addition to the penalty provided herein, the At
torney General of the State of Mississippi or the dis
trict attorney of the district, or county attorney in the
county in which said depot, bus station or terminal is
situated may file suit in the chancery court of such
county for a mandatory injunction to compel compli
ance with the provisions of this act, and the chancery

Mississippi Segregation Statutes

54a

court of any county wherein the provisions of this act
are not complied with shall have jurisdiction to issue
an injunction to require compliance with this act, and
to hold in contempt of court any railroad company,
bus company or any other common carrier of passen
gers failing to comply with the orders and decrees of
the court directing compliance with this act.

“ 3. The requirements of this act shall not be ap
plicable to any person, firm or corporation operating
a place of business wherein said person, firm or cor
poration acts only as ticket agent for a bus company
or other common carrier in addition to his regular
business and wherein no passenger waiting room or
reception room is maintained.” Source: Laws of 1956.

Mississippi Segregation Statutes

A n Ordinance R equiring Common Carriers oe P ersons to
M aintain in the City of J ackson Separate W aiting R oom
and R est R oom A ccommodations and F acilities for the
W hite and Colored R aces; M aking I t U nlawful for A ny
P erson of tile W hite R ace to U se Such A ccommodations
and F acilities D esignated and Set A part for P ersons of
the Colored R aces; M aking I t U nlawful for A ny P erson
of the Colored R aces to U se Such A ccommodations and
F acilities D esignated and Set A p a r t for P ersons of the
W hite R ace ; P rescribing P enalty for V iolation H ereof;

and M aking T his Ordinance I mmediately E ffective.

W hereas, the citizens of the City of Jackson, Mississippi,
have been accustomed for many generations to separation
of the White race from the Colored races in the use of
waiting room and rest room facilities and accommodations
provided by common carriers of persons; and

W hereas, a sudden interm ingling o f the races necessarily
involved in the common use o f such waiting room and rest
room accommodations and facilities would likely result in
disturbances, breaches o f the peace, disorder and con
fusion ; and

W hereas, the Council of the said City of Jackson owes
the duty to its citizens, regardless of race, color, creed or
station in life, to maintain good order and to prevent
breaches of the peace, and thereby to promote the health
and general welfare of all its citizens, and it has power
to adopt and enforce ordinances to accomplish such pur
poses ;

City Ordinance Requiring Carriers to
Maintain Separate Facilities

56a

Now, T herefore, Be It Ordained by the Council of the
City of J ackson, M ississippi :

Section 1. That all common carriers of persons which
have heretofore provided and maintained separate wait
ing rooms, rest rooms and like accommodations and facili
ties be and they are hereby required to continue to main
tain similar but separate waiting rooms, rest rooms and
like accommodations and facilities for the White and for
the Colored races, and to appropriately designate one of
the said waiting rooms, rest rooms accommodations and
facilities for use by persons of the White race only, and
the other for use of persons of the Colored races only.

Section 2. That it shall be unlawful for any person of
the White race to use as such the said accommodations so
thus provided for use by persons of the Colored races only.

Section 3. That it shall be unlawful for any person of
the Colored races to use as such the said accommodations
so thus provided for use by persons of the White race only.

Section 4. That any person convicted of a violation of
this ordinance shall be guilty of a misdemeanor and shall be
punished by a fine of not less than twenty-five dollars
($25.00), nor more than one-hundred dollars ($100.00), or
by imprisonment in the City Jail not to exceed thirty (30)
days, or by both such fine and imprisonment.

Section 5. It having been found by the Council of the
said City of Jackson, Mississippi, that in the preservation
of good order and peace of the municipality, and in the
promotion of the general welfare of its citizens, it is neces
sary for this ordinance to become immediately effective,

City Ordinance Requiring Carriers to
Maintain Separate Facilities

57a

City Ordinance Requiring Carriers to
Maintain Separate Facilities

and the same having been adopted by the unanimous vote
of all the members of the governing body of said city, it is
further ordained that this ordinance shall be and become
effective immediately.

A pproved:

Allen C. Thompson, Mayor
C. W. Alexander, Commissioner
D. L. Luckey, Commissioner

A ttest :

Mrs. J. R. Skinner
City Clerk

(S eal)

I, Mrs. J. R. Skinner, the duly appointed, qualified and
acting City Clerk and lawful custodian of the minutes of
the Council and seal of said city, certify that the forego
ing is a true and exact copy of an Ordinance passed by
the City Council at its regular meeting on January 12,
1956, and recorded in Minute Book “ F F ” , page 149.

AVitness my signature and official seal of office, this
12th day of January, 1956. -

(S eal)

Mrs. J. R. Skinner,
City Clerk

58a

APPENDIX III

Opinion in R o g e r s Case

March 2, 1964.
Isr t h e

SUPREME COURT OF MISSISSIPPI

No. 42,722

J ohn L ee Copeland,

vs.

State of M ississippi.

R odgers, Justice:

(Not to be Reported in State Reports)

This case is affirmed on the authority of Thomas v.
State, No. 42,987, rendered February 17, 1964, and Farmer
v. State, No. 42,983, this day decided.

A feibmed.

A ll J ustices Concur.

Note:

Opinions in substantially the same language as above
were rendered in the AcJcerherg, Aelony, Anderson, Bevel,
Donald, Filner, Nixon, Randolph, Reed, Harbour, Perlman,
Myers, Peterson, Morton, Patton, Muse, O’Connor, K.
Pleune, Davidov, Roland, McDonald, and J. Pleune cases
on March 2, 1964, and in the Adler, Bromberg, and
McKinnie cases on March 9, 1964.

59a

Judgment of Mississippi Supreme Court,
in Thom as Case

Monday, February 17th, 1964, Court Sitting:

No. 42,987

H einry J. T homas,

vs.

State.

This cause having been submitted at a former day of
this term on the record herein from the Circuit Court of
Hinds County, First District, and this Court having suffi
ciently examined and considered the same and being of the
opinion that there is no error therein—doth order and ad
judge that the judgment of said Circuit Court rendered
in this cause on November 14th, 1962 a conviction of breach
of the peace and a sentence to pay a fine of $200.00 and
serve 4 months in jail be and the same is hereby affirmed.
It is further ordered and adjudged that the State of Mis
sissippi do have and recover of and from Henry J. Thomas
all of the cost of this appeal to be taxed for which let
proper process issue.

Note:

Judgments in the other 28 cases were in substantially the
same language as above; they merely reflect different lower
court judgment dates, different words used to impose the
same sentence, etc. Judgments were entered in the Morton,
Anderson, Aelony, Harbour, Copeland, Davidov, Filner,

60a

Judgment of Mississippi Supreme Court
in Thomas Case

Muse, Myers, Donald, Perlman, McDonald, Patton, Nixon,
Randolph, Farmer, O’Connor, Roland, Bevel, J. Pleune,
Peterson, K. Pleune, Reed, and Acherberg cases on March
2,1964, and in the Bromberg, McKinnie, Knight, and Adler
cases on March 9, 1964.

61a

Order Overruling Suggestion o f Error
in Thomas Case

Monday, March 16, 1964, Court Sitting:

No. 42,987

H estry J. T homas,

vs.

State.

This cause this day came on to be heard on the sugges
tion of error filed herein and this Court having sufficiently
examined arid considered the same and being of the opin
ion that the same should be overruled doth order and ad
judge that said suggestion of error be and the same is
hereby overruled (R. 812).

Note:
Orders in identical language were entered in the Acker-

berg (R. 303), Adler (R. 289), Aelony (R. 160), Anderson
(R. 323), Bevel (R. 130), Bromberg (R. 122), Copeland
(R. 140), Davidov (R. 140), Donald (R. 139), Farmer (R.
132), Filner (R. 132), Harbour (R. 120), Knight (R. 128),
McDonald (R. 127), McKinnie (R. 127), Morton (R. 128),
Muse (R. 143), Myers (R. 124), Nixon (R. 127), O’Connor
(R. 124), Patton (R. 126), Perlman (R. 120), Peterson (R.
128), K. Pleune (R. 113), Randolph (R. 125), Reed (R.
119), Roland (R. 135) on April 6,1964, and in the J. Pleune
(R. 131) case on April 13, 1964.

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Thomas v. Mississippi Petition for Writ of Certiorari

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