Adams v. Lucy Brief for Appellees

    1ST T H E

Infill tourt nt Kppt&lB
For the Fifth Circuit

No. 15,839

WILLIAM F. ADAMS,

vs.
Appellant,

AUTHERINE J. LUCY and POLLY ANNE MYERS,
Appellees.

A ppe a l  pro m  t h e  ITn it e u  S tates D istr ic t  C ourt eor t h e  
N o r th er n  D istr ic t  oe A labama, W e st e r n  D iv isio n

BRIEF FOR APPELLEES

A r t h u r  D . S h o res ,
1630 Fourth Avenue, North, 

Birmingham, Alabama.

C o n stance  B a k er  M otley , 
T hurgood M a r sh a ll ,

107 West 43rd Street,
New York 36, N. Y.

Attorneys for Appellees.

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320



I jST t h e

luttefli BUUb (tart of Ajjjmtls
For the Fifth Circuit 

No. 15,839

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

W il l ia m  F. A dams,
Appellant,

vs.

A u t h e r in e  J. L ucy  a n d  P olly A n n e  M yers ,
Appellees.

A pp e a l  from  t h e  U n ited  S tates D istr ic t  C ourt for t h e  
N o r th er n  D istr ic t  of A labama, W ester n  D iv isio n--------------------- o---------------------

BRIEF FOR APPELLEES

Statement Of Case

Appellant’s statement of the case is supplemented by 
the following facts for the information of this Court:

On September 2, 1955, simultaneously with the filing of 
the Notice of Appeal to this Court, appellant (defendant 
below, hereinafter referred to as defendant) moved the 
Court below for an order suspending its injunction pend­
ing appeal (E 203). On September 6, 1955, the Court 
below entered such an order suspending its injunction for 
a period of four months from September 6, 1955 in the 
event that this appeal is not finally adjudicated prior to 
the expiration of such period of time (E 205).



2

On September 9,1955 a motion made by appellees (plain­
tiffs below, hereinafter referred to as plaintiffs) to reinstate 
the injunction order was denied by Judge Rives, one of the 
Judges of this Court.

Pursuant to a motion made by plaintiffs in the United 
States Supreme Court on September 13, 1955, that Court 
on October 10, 1955 reinstated the injunction order “ to 
the extent that it enjoins and restrains the respondent and 
others designated from denying these petitioners Autherine 
Lucy and Polly Anne Myers the right to enroll in the 
University of Alabama and pursue courses of study there.”
Lkcy v. Adams, -----  U. S. ----- , 100’ L. ed. (Adv.) 1, 2
(1955).

Thereafter, defendant refused to admit plaintiffs on the 
ground that they had not presented themselves for regis­
tration prior to October 6, 1955, the last day of registration 
for credit at the University of Alabama.

Following this refusal, plaintiffs moved the Court below 
for an order directing defendant to show cause why he 
should not be cited for contempt. Such an order was issued 
by the Court below returnable October 28, 1955. Follow­
ing the hearing on October 28, the Court below by order 
entered October 29, 1955 vacated its order to show cause 
and denied plaintiffs’ prayers for relief. From this order 
plaintiffs have appealed to this Court by the filing of a 
Notice of Appeal on November 1, 1955, filing and docketing 
their record on appeal on December 3, 1955.

On December 3, 1955 plaintiffs moved this Court for 
an order advancing the date of argument of this latter 
appeal to the date of argument of the instant appeal.



3

Brief Of Argument

I. The facts found by the District Court, as set forth 
in its Amended Findings of Fact (R 198), are amply sup­
ported by the evidence presented upon the trial of this 
cause (R 67-178).

II. A district court of three judges is not required in 
this case since plaintiffs do not seek to restrain ‘‘the 
enforcement, operation or execution of any State statute 
by restraining the action of any officer of such State in the 
enforcement or execution of such statute or of an order 
made by an administrative board or commission acting 
under State statutes” 1 but seek merely to restrain the 
action of the defendant who, “ in refusing plaintiffs’ admis­
sion to the University,” was in fact “ acting personally, 
although purporting to act under color of” office (R 37).

Title 42 U. S. C. § 1983 (formerly Title 42 U. S. C. 
§43) (R 35);

Title 28 U. S. C. § 1343(3) (R 35);
Beal v. Holcombe, 193 F. (2d) 384 (C. A. 5, 1952);
Wichita Falls Junior College Hist. v. Battle, 204 

F. (2d) 632 (C. A. 5, 1953);
Cf. Whitm.ore v. Stillwell, ----- F. (2d) -----

(C. A. 5, decided Nov. 23, 1955);
Cf. Detroit Housing Commission v. Lewis, 226 

F. (2d) 180 (C. A. 6, 1955);
Cf. Dawson v. Mayor <& City Council of City of 

Baltimore, 220 F. (2d) 386"(C. A. 4, 1955), aff’d 
-----U. S .------ , 100 L. ed. (Adv.) 75;

Cf. Kansas City v. Williams, 205 F. (2d) 47 (C. A. 
8, 1953), cert. den. 346 U. S. 826;

Cf. McKissick v. Carmichael, 187 F. (2d) 949 
(C. A. 4, 1951), cert. den. 341 U. S. 951;

i Title 28 U. S. C. § 2281.



4

Cf. Mitchell v. Wright, 154 F. (2d) 924 (C. A. 5, 
1946), cert. den. 329 U. S. 733;

Cf. Alston v. The School Board, 112 F. (2d) 992 
(C. A. 4, 1940), cert. den. 311 U. S. 693.

III. The individual members of the Board of Trustees 
of the University of Alabama are not indispensable parties 
to this action since “ the decree granting the relief sought 
will” not require any of them “ to take action, either by 
exercising directly a power lodged in” them “ or by hav­
ing a subordinate exercise it for” them, that is, a decree 
enjoining this defendant, alone, will be effective, in and of 
itself, to secure the relief sought.

Hynes v. Grimes Packing Co., 337 U. S. 86 (1949);
Williams v. Fanning, 332 U. S. 490 (1947) ;
Colorado v. Toll, 268 U. S. 228 (1925);
Whitmore v. Stillwell, supra;
Koepke v. Fontecchio, 177 F. (2d) 125, 127 (C. A. 

9, 1949);
Rank v. Krug, 90 F. Supp. 773, 802 (S. D. Cal. 

1950);
deKoning v. Zimmerman, 89 F. Supp. 891, 893 

(E. D. Penn. 1950);
Tanish v. Phelan, 86 F. Supp. 461, 462 (N. D. Cal. 

1949);
Farrell v. Moomau, 85 F. Supp. 125, 127 (N. D. 

Cal. 1949);
National Radio School v. Marlin, 83 F. Supp. 169, 

170 (N. D. Ohio 1949).

IV. The federal courts, including the United States 
Supreme Court, have long recognized the right of one or 
more members of a class, unlawfully discriminated against 
or deprived of constitutional rights on a group or class 
basis, to bring an action on behalf of himself or themselves 
as plaintiffs and on behalf of all other members of the



5

class, although the rights sought to be vindicated are indi­
vidual, wherein a common question of law or fact is adju­
dicated and a common relief is secured.

Rule 23(a)(3) Federal Rules of Civil Procedure;
Brown v. Board of Education of Topeka, 347 U. S. 

483, 495 (1954)';
Gray v. University of Tennessee. 342 17. 8. 517 

(1952);
Detroit Housing Commission v. Lewis, supra, at 

180;
Bruce v. Stillwell, 206 F. (2d) 554 (C. A. 5, 1953);
Wit chit a Falls Junior College District v. Battle, 

supra;
Beal v. Holcombe, supra;
Kansas City v. Williams, supra, at 51-52;
Mendez v. Westminister School District, 64 F. 

Supp. 544, 545, 551 (S. D. Cal. 1946), aff’d 161 
F. (2d) 774;

Morris v. Williams, 149 F. (2d) 703, 704, 709 
(C. A. 8, 1945);

Frazier v. Board of Trustees, 134 F. Supp. 589, 
592 (M. D. N. C. 1955);

Jones v. City of Hamtramck, 121 F. Supp. 123 
(1954);

Constantine v. Southwestern Louisiana Institute, 
120 F. Supp. 417 (W. D. La. 1954) ;

Vann v. Toledo Metropolitan Housing Authority, 
113 F. Supp. 210 (1953);

Gonzales v. Sheeley, 96 F. Supp. 1004, 1007, 1009 
(D. Ariz. 1951) {

Wilson v. Board of Supervisors, 92 F. Supp. 986, 
988 (E. D. La. 1950), aff’d 340 U. S. 909;

Johnson v. Board of Trustees, 83 F. Supp. 707, 
709-710 (E. D. Ky. 1949) ;

Davis v. Schnell, 81 F. Supp. 872, 874, 881 (S. D. 
Ala. 1949), aff’d 336 U. S. 933;



6

Brown v. Baskin, 78 F. Supp. 933, 935, 942 (E. D. 
S. C. 1948), aff’d 174 F. (2d) 391;

Whitmyer v. Lincoln Parish School Board, 75 F. 
Supp. 686 (W. D. La. 1948);

Lopes v. Seccombe, 71 F. Supp. 769, 771, 772 
(S. D. Cal. 1944);

Mills v. Board of Education, 30 F. Supp. 245, 248, 
251 (D. Md. 1939).

To require that plaintiffs prove the actual number of 
members in the class and the identity of each member of 
the class would place an unnecessary and, in most cases, 
impossible burden, thus defeating the purpose and objec­
tive of the class action rule.

Smith v. Swarmstedt, 57 U. S. 288, 302-303 (1853);
Moore’s Federal Practice (2d ed.), Vol. 3,

pp. 3424, 3426.

Whether a class is so numerous as to make it imprac­
ticable to bring them all before the Court, is a determina­
tion for the trial court based upon its detailed knowledge 
of the facts, and its decision is final, unless abuse is shown.

In re Engelhard, 231 U. S. 646, 650 (1914);
Moore’s Federal Practice (2d ed.), Yol. 3.,

p. 3422.



7

ARGUMENT

I. The District Court’s Amended Findings Of Fact Are
Adequately Supported By The Record.

The District Court’s Amended Findings of Fact 
(E 198) are supported by the following references to the 
record:

The8plaintiff’s are citizens of Jefferson Comity, Ala 
bama. Plaintiff Lucy attended Linden Academy at Linden, 
Alabama, from which institution she graduated in 1947. 
Plaintiff Myers attended Ullman and Parker High Schools 
in Birmingham, Alabama. She graduated from the latter 
institution in 1949. Plaintiffs graduated from Miles Col­
lege in Birmingham, in May, 1952 (R 100, 117, 158, 161).

On September 4, 1952, plaintiffs by separate letters 
wrote the Dean of Admissions at the University of Ala­
bama, stating that they were interested in attending the 
University and requesting application blanks. In the let­
ter written by the plaintiff, Polly Anne Myers, it was stated 
that she was interested in attending the University of 
Alabama to specialize in Library Science; while in the 
letter written by the plaintiff, Autherine J. Lucy, it was 
stated that she was interested in attending the University 
of Alabama to study Journalism. On the following day 
the defendant replied enclosing the necessary forms for 
admission. On that date the Assistant Dean of Women 
wrote the plaintiffs advising them of the facilities avail­
able at the University and stating that a check or a money 
order for $5.00 was required as a deposit for room reserva­
tion. Upon receipt of this information plaintiffs each for­
warded their deposits. These deposits were acknowledged 
by a letter dated September 10, 1952, receipts for same 
were enclosed, and plaintiffs were advised they were 
assigned to Adams-Parker dormitory. On September 13,



8

1952, President Gallalee wrote the plaintiffs that Dean 
Adams had advised him that they were coming to the 
University and that he wished to assure them that they 
would be welcome on the campus (R 101, 102, 105, 118-120, 
125-126, 132, 179, 180, 181).

Plaintiffs mailed their applications and transcripts of 
credits to the Dean of Admissions on September 17. These 
were received by Dean Adams on the afternoon of the 19th. 
Plaintiff Myers ’ application recites that she' desired to 
register in the College of Arts and Science, majoring in 
Journalism, and that she planned to complete her work 
for the degrees of B. A. and M. A. at the University. 
Plaintiff Lucy’s application recites that she desired to enter 
the College of Education, majoring in Library Science 
[sic], and that she intended to complete her work for the 
degrees of B. S. and M. S. (R 92, 98, 138, 158, 161).

On the morning of September 20, plaintiffs appeared 
at the offices of the Dean. There is a dispute in the evi­
dence as to the exact conversation that occurred. It is 
undisputed, however, that defendant tendered to each of 
the plaintiffs her room deposit and advised them the courses 
which they sought were available at Alabama State Col­
lege in Montgomery. Their applications were rejected at 
that time. By letter of September 14, 1952 plaintiffs, 
through their attorney, appealed to President Gallalee for 
admission to the University. Dr. Gallalee did not accept 
their applications for admission but contacted a party in 
Birmingham and asked him to intervene with the attorney 
in an attempt to persuade the plaintiffs to withdraw their 
applications and seek admission to the Alabama State 
College and Tuskegee Institute, both of which are Negro 
institutions. The attorney appealed to Governor Persons, 
President ex-Officio of the Board of Trustees. Governor 
Persons placed the applications before the Board at its 
annual meeting on June 1, 1953. On June 6, 1953,



9

Mr. Bealle, Secretary of the Board, wrote the attorney, 
stating:

“ . . . Much careful consideration was given to this 
matter by the Board but no final action was taken. 
The Board directed me to advise you, as attorney 
for the applicants, of its consideration of this mat­
ter and of its action deferring final action pending- 
receipt of a court decision concerning litigation now 
before the Supreme Court of the United States. 
“ The Board has also directed me to point out to 
you that there are courses in journalism and library 
science given at Alabama College at Montgomery, 
or at Tuskegee Institute, which are available to your 
clients and to suggest that they make application for 
admission to those institutions” (R 72, 78, 83, 103- 
104, 121, 139, 146, 147).

On the occasion that the applications were considered 
by Dr. Gallalee and the Board of Trustees, neither Dr. Gal- 
lalee nor the Board took any steps to deny the applications 
on the ground that the plaintiffs did not possess the 
requisite scholastic requirements for admission (R 72, 77- 
79, 83,146).

The evidence fails to disclose that there is a written 
policy or rule of the University denying admission to pros­
pective students to that institution solely on the ground 
of race or color. However, other Negroes have made appli­
cation for admission. There is no evidence that any one 
of them has ever been admitted. On the other hand, dur­
ing the month of August, 1950, a Negro by the name of 
W. H. Hollins applied for admission to the Law School. 
The defendant furnished him an application, but the accom­
panying letter stated that the State had provided machin­
ery “ through the State Department of Education to assist 
colored students who desired to engage in the study of 
law to obtain opportunities for entering high grade institu-



10

tions located elsewhere which accept colored students.” 
Defendant concluded his letter by stating that “ We hope 
you can persuade yourself not to file your application for 
admission here” (E 69-70, 74, 76, 93, 94, 133-134, 156).

As late as May 31, 1955, one Agnes Studenmire wrote 
Dr. Carmichael, President, stating she was desirous of 
taking some courses at the University Extension Center in 
Birmingham; that she was a Negro and would like to know 
whether or not the policy had changed for the admission 
of Negroes so that she might be accepted as a student. 
Dr. Carmichael replied to this letter advising her that ‘ ‘ the 
admission requirements of the University of Alabama have 
not changed in recent months” (R 134-136, 177-178).

The University has a Department of Journalism in the 
College of Arts and Science and offers courses in that 
department. It also offers courses in School Library 
Services in its College of Education (R 89, 90, 91, 153).

The evidence reveals that the defendant is vested with 
authority to receive or reject applications for admission 
to the University. If an application is rejected, the appli­
cant may appeal his decision (R 76, 88-89).

II. This Is Not A Case For A District Court Of Three 
Judges.

There is no statute of the State of Alabama which bars 
the admission of Negro students to the University of 
Alabama (R 68).

The Board of Trustees of the University of Alabama 
has not promulgated any order barring the admission of 
Negro students to the University of Alabama (R 69-70, 
74, 78, 93).

In their complaint as last amended, plaintiffs do not ask 
the Court to restrain any state officer in the enforcement



11

or execution of any state statute or in the enforcement or 
execution of an order of any administrative board or com­
mission acting under state statute.

If there were a statute barring plaintiffs ’ admission, the 
enforcement or execution of which would have been en­
joined by the injunction order restraining defendant here, 
or if plaintiffs ’ amended complaint had alleged that defend­
ant was acting pursuant to state statute in barring their 
admission, then clearly the provisions of Title 28 U. S. C. 
§ 2281 would be applicable, and the Court below, sitting as 
a single-judge District Court, would not have had jurisdic­
tion to grant such an injunction.

Cf. Brown v. Board of Education of Topeka, supra;
McLaurin v. Oklahoma State Regents, 87 F. Supp. 

52.6, 527 (W. D. Okla. 1948), rev’d on the merits 
339 U. S. 637 (1950).

If the Board of Trustees of the University of Alabama had 
issued an order barring the admission of Negroes from the 
University of Alabama, the enforcement or execution of 
which plaintiffs sought to enjoin by securing an injunc­
tion against defendant here, then clearly a District Court 
of three judges would have been required.

Frazier v. Board of Trustees, 134 F. Supp. 589, 
591 (M. D. N. C. 1955).

The testimony of the members of the Board of Trustees 
upon the trial of this case was that there is no written or 
formulized policy barring admission of Negroes to the 
University (B 69-70, 74, 78).

Defendant testified that at the time he received the 
plaintiffs’ applications he was not under any instructions 
from the Board regarding the admission of Negro students 
(B 93).



12
Despite this testimony, however, defendant now argues 

for the first time in his brief on appeal here, pages 19 and 
22-31, that a district court of three judges is required when 
an injunction is sought to restrain the enforcement of a 
policy of a state administrative board on the ground of its 
unconstitutionality.

The complaint as last amended alleges, “ That in refus­
ing plaintiffs’ admission to the University, defendants were 
in fact, acting personally, although purporting to act under 
color of their office” (R 37).

The Court’s jurisdiction was invoked pursuant to the 
provisions of Title 28 U. S. C. § 1343, this being a suit in 
equity authorized by Title 8 U. S. C. § 43 (R 35).

A District Court of one judge clearly has jurisdiction of 
such cases.

Beal v. Holcombe, supra;
Wichita Falls Junior College Hist. v. Battle, supra;
Cf. Whitmore v. Stillwell, supra;
Cf. Detroit Housing Commission v. Lewis, supra;
Cf. Dawson v. Mayor <& City Council of City of 

Baltimore, supra;
Cf. Kansas City v. Williams, supra;
Cf. McKissick v. Carmichael, supra;
Cf. Mitchell v. Wright, supra;
Cf. Alston v. The School Board, supra.

The undisputed testimony shows that defendant is 
vested with authority to receive or reject applications and 
that his determination is final unless appealed (R 76, 
88-89).

The undisputed testimony also shows that it was this 
defendant who rejected the applications of plaintiffs (R 138- 
139, 75-76, 78, 83).



13

III. The Individual Members Of The Board Of Trus­
tees Are Not Indispensable Parties.

As pointed out above, it was this defendant who re­
jected the applications of plaintiffs and it is this defendant 
whose duty it is to pass upon the eligibility of applicants 
for admission to the University (R 139, 88-89).

As pointed out above also, at the time these plaintiffs 
applied for admission to the University, this defendant was 
not under any instructions from the Board of Trustees 
regarding the admission of Negro students (R 93, 95).

Further, as pointed out above, the members of the 
Board who testified upon the trial, testified that the Board 
has no policy barring admission of Negro students. Thus, 
contrary to the contention of defendant in his brief, pages 
32 and 35, the Board of Trustees does not have such a 
legally protectable interest in this case as would justify 
the conclusion that the individual members thereof are in­
dispensable parties.

What action must the Board take in response to the 
District Court’s order of July 1, 1955? This question 
defendant studiously avoids answering.

An injunction enjoining this defendant from refusing 
to admit plaintiffs does not require the Board members 
to exercise any power lodged in them, take any action, or 
have any of their subordinates exercise any Board powers 
or take any action for them. In other words, a decree 
enjoining the Dean of Admissions of the University of 
Alabama is sufficient relief for plaintiffs’ purposes. If 
the Board of Trustees is not required to take any action 
as a result of the District Court’s order of July 1, 1955, 
and is not required to exercise any of its powers, then 
neither the Board nor any of its members are indispensable 
parties to this action. This is the criterion established by 
the United States Supreme Court in determining whether



14

a superior officer is an indispensable party to a suit against 
his subordinate and which has been followed by the lower 
federal courts.

Hynes v. Grimes Packing Co., supra;
Williams v. Fanning, supra;
Colorado v. Toll, supra;
Koepka y. Fontecchio, supra;
Bank v. Krug, supra;
deKoning v. Zimmerman, supra;
Yanish v. Phelan, supra;
Farrell v. Moomau, supra;
National Radio School v. Marlin, supra.

There is nothing in the record of this case or otherwise 
to suggest that an injunction against this defendant will 
not be effective to obtain the result here sought.

Whitmore v. Stillwell, supra.

IV. This Case Is Properly Maintainable As A Class 
Action And The Court Below Properly Granted 
Relief For The Class.

Defendant relies upon the case of Cook v. Davis, 178 
F. (2d) 595 (C. A. 5, 1950) and Brown v. Board of Trus­
tees of LaGrange Independent School District, 187 F. (2d) 
20, as authority for the proposition that a person may not 
sue to redress the deprivation of his civil rights and to 
redress the deprivation of the rights of those similarly 
situated in a class with him. Neither of these cases so 
held. The holding in the Cook case relates to exhaustion 
of administrative remedies before resorting to a federal 
court for relief. The holding in the Brown case was that 
the complaint should be dismissed for want of equity, the 
plaintiff having failed to prove that he was injured by the 
action complained of.



15

Contrary to the contention of defendant, class actions 
to redress deprivations of rights secured by the Fourteenth 
Amendment to the Federal Constitution have been per­
mitted in a long line of cases. Some of which are:

Browns. Board of Education of Topeka, supra; 
Gray v. University of Tennessee, supra;
Detroit Housing Commission v. Lewis, supra; 
Bruce v. Stillwell, supra,;
Wichita Falls Junior College District v. Battle, 

supra;
Beal v. Holcombe, supra;
Kansas City v. Williams, supra;
Mendez v. Westminister School District, supra; 
Morris v. Williams, supra;
Frazier v. Board of Trustees, supra;
Jones v. City of Hamtramck, supra;
Constantine v. Southwestern Louisiana Institute, 

supra;
Vann v. Toledo Metropolitan Housing Authority, 

supra;
Gonzales v. Sheeley, supra;
Wilson v. Board of Supervisors, supra;
Johnson v. Board of Trustees, supra;
Davis v. Schnell, supra;
Brown v. Baskin, supra;
Whitmyer v. Lincoln Parish School Board, supra; 
Lopes v. Seccombe, supra;
Mills v. Board of Education, supra;
Smith v. Swarmstedt, supra;
In re Engelhard, supra.

Defendant also contends that plaintiff should have intro­
duced proof that the persons embraced within their class 
are so numerous as to make it impracticable to bring them 
all before the Court. Defendant says, page 51 of his brief:



16

“ It is submitted that the evidence introduced on 
the trial of this case failed to show the existence of 
such a class or group of persons.”

This statement must be read in the light of what appears 
on page 93 of transcript of the record on this appeal. 
There it is revealed that when plaintiffs tried to show the 
number of Negro students who had applied for admission 
to the University of Alabama and to ascertain from the 
only person who would be competent to know (the Dean 
of Admissions) the disposition made of their applica­
tions, the defendant objected to this line of questioning and 
his objection was sustained by the Court.

Despite this, however, the defendant himself testified 
that other Negro students have applied for admission 
(R 93). Hill Fergerson, a member of the Board of Trus­
tees of the University of Alabama, testified that other 
Negro students have applied “ from time to time in the 
last 15 or 20 years” (R 70). This defendant wrote one 
applicant, “ I am venturing to write you a friendly letter 
to tell you frankly that the problem posed by your appli­
cation is one of which we have long been conscious and 
which we have from time to time been called upon in the 
past to meet” (R 156). There is no evidence that any 
of the applicants have ever been admitted.

It is, therefore, clear from the record in this case that 
there is a class, which defendant himself recognizes and 
has dealt with, on behalf of which these plaintiffs sue.

To require plaintiffs to prove that the class is numer­
ous would place on plaintiffs an unnecessary burden, since 
that is obvious from the facts and circumstances of this 
case, and an impossible burden since the large Negro 
population of the state makes it impossible for plaintiffs 
to know or bring before the Court all Negro students who 
have applied and who have been denied admission, solely 
because of race and color. Such a burden would defeat 
the whole purpose and objective of the class action rule.



17

Smith v. Swarmstedt, supra;
Moore’s Federal Practice (2d ed.), Vol. 3, pp. 3423.

3426.

Whether a class is so numerous as to make it imprac­
ticable to bring them all before the Court is a determina­
tion for the trial court based upon his detailed knowledge 
of the facts, and his determination is final unless abused.

In re Engelhard, supra;
Moore’s Federal Practice (2d ed.), Vol. 3, p. 3422.

Here the trial court determined that this action is 
properly brought as a class action. The defendant has the 
burden of proving that this was an abuse.

Once it is determined that the class is too numerous to 
be brought before the Court, the only other requirements 
are that there be a common question of law or fact and a 
common relief sought. Rule 23(a)(3) Federal Rules of 
Civil Procedure. These requirements are met here.

Conclusion

For the foregoing reasons, the judgment of the Court 
below should be affirmed.

Respectfully submitted,

A r t h u r  D . S h o res ,
1630 Fourth Avenue, North, 

Birmingham, Alabama.

C onstance  B aker  M otley ,
T hurgood  M a rshall ,

107 West 43rd Street,
New York 36, N. Y.

Attorneys for Appellees.