Speed v Tallahassee FL Brief in Opposition

    No. 783

3  it tip Supreme Court of tip Putted jitatee
October Term, 1957

LEONARD D. SPEED, JOSEPH 
SPAGNA, and JOHNNY HERNDON,

Petitioners,

vs.

THE CITY OF TALLAHASSEE, 
FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
CIRCUIT COURT OF THE SECOND JUDICIAL 

CIRCUIT OF THE STATE OF FLORIDA

BRIEF FOR THE RESPONDENT THE CITY OF 
TALLAHASSEE, FLORIDA IN OPPOSITION

Leo L. Foster 
P. O. Box 669 
Tallahassee, Florida 
Counsel for Respondent

March 5, 1958.



I N D E X

PAGE

Opinions Below________________.—*------------------------ 1
Jurisdiction __ _l------- ~----- —.------------------------- ------- 2-6
Question Presented________________ -__ __________  7
Statute Involved __ *___—__-__-_—__ ...------- ...----------  7
Statement of the Case________-— ...------------------------  7-10
Argument ____ _______________----------------------------— 10-14

I—How Federal Questions were Raised______ — 10
II—The Decision Below is Clearly Correct--------- 11-14

Conclusion ________________ _____________ *---------- - 14
Appendix A—Judgments and Sentences in Cases No.

60022, 60023, and 60024_____________ 15-17
B—Article 5, Sections 1, 3, 4, 5, and 6, Con­

stitution of the State of Florida______  18-24

CITATIONS
Cases :

Bowe vs. Scott, 233 U. S. 658, 664-5___________  6
Capital City Dairy Co. vs. Ohio, 183 U. S. 238, 248 4
Central Union Co. vs. Edwardsville, 269 U. S. 190,

194-5 __________________________________  3
Davis vs. Schmell, 81 Fed. Supp. 872, Affirmed

336 U. S. 933_______________ -___________  12
Enterprise Irrig. Dist. vs. Farmers Mut. Canal

Co., 243 U. S. 157, 163-4____________ -___6
Fox Film Corp. vs. Muller, 296 U. S. 207„_----- -— 6
Harding vs. Illinois, 196 U. S. 78, 88___________ - 4
Herndon vs. Georgia, 295 U. S. 441, 442-3_____ 4
Hunt vs. City of Jacksonville, 34 Fla. 504, 16 So.

398 ____________________________________ 2



I N D E X

CITATIONS— ( Continued )
PAGE

Cases: (Continued)

Malone vs. City of Quincy, 66 Fla. 52, 62 So. 922— 2
Matthews v. Huwe, 269 U. S. 262, 265-6------------ 3
Mernaugh v. City of Orlando, 41 Fla. 433, 27 So. 34 2
New York Central vs. New York, 186 U. S. 269,

273 ____________________________________  5
New York ex rel Bryant vs. Zimmerman, 278

U. S. 63, 67-8_,____ ...____________ _________  6
Oxley Stave Co. vs. Butler County, 166 U. S. 648,

655 ___________________________________  4
Parker vs. Illinois, 333 U. S. 571, 574-5--------------- 3
Pennsylvania R. Co. vs. Illinois Brick Co., 297

U. S. 447, 462-3_______ „ _________________  3
Stratton vs. Stratton, 239 U. S. 55--------------------- 3
United Automobile Aircraft and Agricultural Im­

plement Workers of America vs. Wisconsin 
Employment Relations Board, 350 U. S. 521— 13

Yick Wo vs. Hopkins, 118 U. S. 356---------------- - 12

Statutes :

28 U. S. C. Section 1257____ i_________________  3
Ordinance No. 368, as amended by Ordinance No.

659, as Amended by Ordinance No. 741 of the 
City of Tallahassee, Florida------------------------  7

Other Authorities :

Constitution of the State of Florida, Article 5, Sec­
tions 1, 3, 4, 5, and 6---------------------------------  2



31 it tlje Supreme (Umtri of ifft Ptttiefr Stales
October Term, 1957

No. 783

LEONARD D. SPEED, JOSEPH 
SPAGNA, and JOHNNY HERNDON,

Petitioners,

vs.

THE CITY OF TALLAHASSEE,
FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE 
CIRCUIT COURT OF THE SECOND JUDICIAL 

CIRCUIT OF THE STATE OF FLORIDA

BRIEF FOR THE RESPONDENT THE CITY OF 
TALLAHASSEE, FLORIDA IN OPPOSITION

OPINIONS BELOW
The opinion of the Municipal Judge of the City of 

Tallahassee, Florida was merely a ruling on a motion 
for a directed verdict at the conclusion of the City’s case 
and is not a final judgment or order. The motion for 
directed verdict is found at page 62 of the certified tran­
script of the proceedings in the Municipal Court and the 
ruling thereon is found on page 74 thereof.

Subsequently, the Municipal Court entered final judg­
ments and sentences in the three cases which are printed 
in Appendix A, infra.

1



2

JURISDICTION
The Circuit Court of the Second Judicial Circuit in and 

for Leon County, Florida, which affirmed the judgments1 
in these three cases, is the primary trial court in Florida 
and has final appellate jurisdiction of all cases arising 
in Municipal Courts and no appellate proceedings lie in 
such cases from the Circuit Courts,2 but the Supreme 
Court and the District Courts of Appeal have express 
power to issue writs of certiorari which is a common law 
writ which issues in the sound judicial discretion of the 
Court to an inferior court, not to take the place of an 
appeal, but to cause the entire record of the inferior 
court to be brought up by certified copy for inspection in 
order that the superior court may determine from the 
face of the record whether the inferior court has ex­
ceeded its jurisdiction; or has not proceeded according 
to the essential requirements of the law in cases where 
no direct appellate proceedings are provided by law. Ma­
lone vs. The City of Quincy, 66 Fla. 52, 62 So. 922.

The judgment of the Circuit Court under the Florida 
Constitution is not final and is reviewable by the District 
Courts of Appeal and by the Court of last resort, the 
Supreme Court of Florida, where it can be shown, as is 
alleged here, that the Circuit Court has not proceeded 
according to the essential requirements of the law. The 
validity of City ordinances are often tested in Florida in 
this manner. Hunt v. The City of Jacksonville, 34 Fla. 
504, 16 So. 398; Mernaugh v. City of Orlando, 41 Fla. 433, 
27 So. 34; Malone v. City of Quincy, 66 Fla. 52, 62 So. 922.

1 The three judgments and sentences in the cases No. 60022 
(City of Tallahassee vs. Joseph Spagna) ; No. 60023 (City of 
Tallahassee vs. Johnny Herndon); and No. 60024 (City of 
Tallahassee vs. Leonard D. Speed) are set out in the Appen­
dix A, infra.

2 Article 5, Sections 1, 3, 4, 5, and 6, Constitution of the 
State of Florida, are set out in Appendix B, infra. Article 5 
is the judiciary article of the Florida Constitution.



3

If there is discretionary review by a higher State 
Court, the exercise of such discretion must be invoked. 
Stratton vs. Stratton, 239 U. S. 55; Matthews v. Huwe, 
269 U. S. 262, 265-6.

The jurisdictional statute permitting this Court to re­
view State Court cases by certiorari relates only to the 
final judgments rendered “by the highest court of a State 
in which a decision could be had.” 28 U. S. C. Section 
1257. A decision could have been had in these three cases 
in the District Court of Appeal and in the Florida Su­
preme Court by the writ of certiorari.

It is essential to the jurisdiction of this Court under 
Section 1257, supra, that a substantial Federal question 
has been properly raised in the State Court proceedings. 
The Federal right, privilege, or immunity must have 
been specially set up or claimed and the proper method 
of raising the Federal question is dependent upon Florida 
practice. Central Union Co. v. Edwardsville, 269 U. S. 
190, 194-5; Pennsylvania R. Co. v. Illinois Brick Co., 297 
U. S. 447, 462-3; Parker v. Illinois, 333 U. S. 571, 574-5.

On the 19th of January, 1957, one Emory Elkins filed 
his affidavit that Joseph Spagna, John Herndon, and 
Leonard Speed did unlawfully occupy a space on a motor 
transportation bus operated for hire by Cities Transit, 
Inc., other than the space assigned by the driver or oper­
ator of said transportation bus and did then and there 
refuse to accept and occupy the space assigned them, and 
upon tender of the fare paid, refused peaceably and with­
out disorder to remove themselves from the motor trans­
portation bus after being requested so to do by the driver 
or operator thereof contrary to the ordinance of the City 
of Tallahassee, Florida, in such cases made and provided 
and on the same date warrants for their arrest were is­
sued by the Municipal Judge. The Defendants did not 
file a motion to quash the affidavit as they should have



4

done according to Florida practice but in lieu thereof 
entered pleas of not guilty and the case went to trial 
on the issue of whether or not the Defendants had vio­
lated the ordinance. They were found guilty and judg­
ment and sentence of the Municipal Court were entered.

The Defendants filed their grounds for appeal as fol­
lows: (1 ) the verdict is contrary to the weight of the 
evidence; (2 ) the verdict is contrary to the law; (3 ) the 
court erred in denying defendants motion for directed 
verdict. The material part of the motion for a directed 
verdict of acquittal is as follows: “The ordinance, as 
promulgated and as enforced by the City of Tallahassee, 
is in violation of the Constitution of the State of Florida, 
the Constitution of the United States; more specifically, 
the 14th Amendment, the Due Process Clause and the 
Equal Protections Clause of said Constitution of the 
United States, in that the salient parts of this ordinance 
ostensibly require seating passengers in order to dis­
tribute weight, avoid health hazards, preserve peace, 
tranquility and good order, and numerous other illusory 
and certainly almost mythical factors.” (T-63, 64)

The Circuit Court affirmed the judgments and sen­
tences of the Municipal Court.

The jurisdiction of this Court to re-examine the final 
judgment of the State Court cannot arise from mere 
inference but only from averments so distinct and posi­
tive as to place it beyond question that the petitioner in­
tended to assert a Federal Right. Oxley Stave Co. vs. 
Butler County, 166 U. S. 648, 655. The Supreme Court 
will not take cognizance of a claim grounded upon a mere 
reference to the Constitution of the United States. Hern­
don v. Georgia, 295 U. S. 441, 442-3; Harding vs. Illinois, 
196 U. S. 78, 88; Capital City Dairy Co. vs. Ohio, 183 U. S. 
238, 248.



5

We recognize that where the State Court holds that a 
Federal question is before it and then proceeds to con­
sider and dispose of same, the Supreme Court’s concern 
with proper raising of the Federal question disappears 
but “ it is well settled in this Court that it must be made 
to appear that some provision of the Federal, as distin­
guished from the State Constitution, was relied upon and 
that such provision must be set forth.” New York Cen­
tral vs. New York, 186 U. S. 269, 273. Here the only 
claim made was “ the ordinance, as promulgated and as 
enforced by the City of Tallahassee is in violation of the 
Constitution of the State of Florida, the Constitution of 
the United States * * *.” The Court overruled the mo­
tion opining “An ordinance * * * comes into Court with 
a presumption of legality and constitutionality * * 
(T-74)

The judgment on appeal provided “This cause coming 
on to be * * * heard upon the appeal * * * and the record 
in said cause having been examined and no denial of any 
constitutional * * * right of appellants * * * having been 
made to appear * * * ORDERED * * * that the * * * 
judgment appealed from * * * is * * * affirmed * * *.”

The motion for review sets up three grounds:
“ 1. That the judgment of this Court which reads 

in part: ‘no denial of any constitutional or statutory 
right of appellants or pre-judicial error other­
wise, having been made to appear, and the court 
being advised in the premises . . . . , ’ does not 
take into consideration Ground Number 1 of the 
appellants’ assignment of errors which urges that 
the appellees did not prove the commission of any 
crime cognizable by law beyond and to the exclusion 
of a reasonable doubt, said assignment dealing with 
the sufficiency of evidence and not with any statu­
tory, constitutional or prejudicial error.



6

“ 2. That this Court erred in ruling that there 
has been no denial of any constitutional or statutory 
right.

“ 3. That this Court erred in ruling that there has 
been no prejudicial error made to appear in this 
case.”

The order denying motion for review states: “This 
cause coming on * * * to be * * * heard upon the motion 
of appellants for review of the Court’s final judgment
* * * and it now appearing to the Court that the suffi­
ciency of the evidence to sustain the conviction of the 
said defendants was duly considered as well as each and 
every other assignment of error or ground for the ap­
peal * * * ORDERED * * * that said motion * * * is
* * * denied * * *.”

If the claim is made that an ordinance is unconstitu­
tional it will be assumed that reference is being made 
to the State Constitution and rights thereunder rather 
than the Federal Constitution. New York ex rel Bryant 
\vs. Zimmerman, 278 U. S. 63, 67-8; Bowe v. Scott, 233 
U. S. 658, 664-5. These judgments and opinions neither 
explicitly or impliedly recognize the presence of a Fed­
eral question nor do they render a decision thereon. The 
judgment of the Circuit CouD here sought to be reviewed 
is based on non-Federal grounds: (1 ) sufficiency of the 
evidence; (2 ) no denial of any Florida Constitutional 
right. The non-Federal grounds are adequate to support 
the judgment, and review by this Court is precluded. 
Fox Film Corp. v. Muller, 296 U. S. 207; Enterprise 
Irrig. Dist. v. Farmers Mut. Canal Co. 243 U. S. 157,163-4.



7

QUESTION PRESENTED
IS THE ORDINANCE AS PROMULGATED AND 

AS ENFORCED BY THE CITY OF TALLAHASSEE, 
IN VIOLATION OF THE CONSTITUTION OF THE 
UNITED STATES, 14TH AMENDMENT, THE DUE 
PROCESS CLAUSE AND THE EQUAL PROTECTION 
CLAUSE IN THAT SALIENT PARTS OF THIS ORDI­
NANCE OSTENSIBLY REQUIRE SEATING PASSEN­
GERS IN ORDER TO DISTRIBUTE WEIGHT, AVOID 
HEALTH HAZARDS, PRESERVE PEACE, TRAN­
QUILITY AND GOOD ORDER?

This was the question presented to the trial court. 
(T. 63-64)

STATUTE INVOLVED

Ordinance No. 368, as amended by Ordinance No. 659, 
as amended by Ordinance No. 741, of the City of Talla­
hassee, Florida.

STATEMENT OF THE CASE
On the 19th of January, 1957, one Emory Elkins filed 

his affidavit averring that the Defendants Spagna, Hern­
don and Speed, performed certain acts and deeds con­
trary to the ordinance of the City of Tallahassee. The 
Defendants entered pleas of not guilty and the cases 
proceeded to trial on that issue. The Defendants made 
no motion to quash nor did they in any way attack the 
affidavit charging the offense as is customary and usual 
in the Florida practice. The Defendants were found 
guilty and the judgment and sentence of the Municipal 
Court were entered.

The Defendants filed their notice of and grounds for 
appeal. At the trial held before the City Judge, William 
F. Jacobs was called as a witness on the behalf of the 
City of Tallahassee and testified that he had prepared 
City of Tallahassee Exhibit No. A, which is the chart



8

showing the seating arrangements on the City Transit 
bus and the chart was admitted into evidence without 
objection. This chart is very material evidence in this 
case.

Emory Elkins was then called by the City and testi­
fied that he was a driver for the bus company and was 
so employed during January, 1957. He examined the 
chart (City’s Exhibit No. A ) and testified that the chart 
accurately portrayed the position of seats on the bus in 
question and that he was driving the bus on January 
19th, 1957, and that Joseph Spagna, John Folsom and a 
person whose name was Kennedy, came on his bus as a 
party of three; they gave him transfers as they entered 
the bus and he assigned them seats, which he was re­
quired to do as a part of his job. The seats that he as­
signed the three were 15, 16, and 17, which seated them 
—two together and one across the aisle. He further testi­
fied that they then sat in the seats so assigned.

He further testified that the Defendant Dan Speed 
and the Defendants John Herndon and Harold Owens 
also approached his bus as a party of three and handed 
him transfers; that they entered the bus and he assigned 
them seats numbered 19, 21, and 22, which sat two of 
them together and one across the aisle. He further testi­
fied that they also sat in their assigned seats; that other 
people were passengers on the bus and after the passen­
gers were seated he proceeded to continue on his regu­
larly assigned run; that his first stop was Gadsden and 
Georgia Streets where a passenger was let off, at which 
time the Defendants Spagna, Speed, and Herndon 
switched seats; that is, the Defendant Speed, who had 
been assigned seat no. 19, moved to seat no. 16; Folsom 
moved from his seat to another, and the Defendant 
Spagna moved from the seat assigned to him to another 
seat. Neither of the three Defendants had asked for a 
re-assignment of their seats and this switching of seats



9

was done without any authority. He testified that he 
asked them to take their assigned seats or accept a re­
fund of their money and they refused the fare and re­
fused to get off and refused to resume their assigned 
seating arrangements; that he then telephoned the po­
lice; that the police responded to his call and when they 
arrived the Defendants were still sitting in the seats 
which they had arbitrarily appropriated and were not 
occupying the space assigned to them by the driver.

On cross examination Elkins stated that he started the 
assignment of seats on his bus to all passengers at all 
times; that he was instructed to assign seats according 
to the weight of the persons boarding the bus, to take 
into consideration the possibility of a collision in dis­
tributing this weight; that he was also instructed to as­
sign seats taking into consideration health hazards; that 
he was not instructed to refrain from assigning seats to 
colored and white passengers together; that he was in­
structed to assign passengers to seats in such manner 
as to preserve the peace, tranquility and good will of the 
community and that in studying the system of assign­
ments he made a study of Ordinance No. 741 and all the 
factors involved therein. He further testified that once 
assigned a seat, an individual would have no right to 
change that seat.

Robert Maige, Captain Tallahassee Police Department, 
testified that when he got to the bus, Herndon and Ken­
nedy were sitting in seats 15 and 17; Speed was sitting 
in 16; Folsom in 18; Spagna in 20 and Harold Owens 
in 22; that the driver asked them to get back in the seats 
they had been assigned and they refused; that the driver 
offered them their pay back to get off the bus and they 
would not do that; that Captain Todd asked them to 
resume their seats and they would not move, and that 
they were then placed under arrest. Captain Wayne 
Todd corroborated Maige’s testimony.



10

The City Attorney then introduced into evidence a 
certified copy of paragraph 7 of the original petition for 
declaratory judgment and injunctive relief filed in Civil 
Action No. 603 in the United States District Court for 
the Northern District of Florida, Tallahassee Division, 
as City Exhibit No. B, which constitutes a sworn judicial 
admission as to the facts contained therein. This Exhibit 
is also material to the issues before the Court. The City 
then rested its case and the Defendants moved for a di­
rected verdict. The Court overruled the motion for a 
directed verdict. The Defendants then announced that 
they did not wish to present any testimony and rested. 
The Court then found the Defendants Spagna, Speed, 
and Herndon guilty.

ARGUMENT

I
HOW FEDERAL QUESTIONS WERE RAISED.

These cases were initiated by the Affidavit of one 
Emory Elkins. The Defendants did not file a motion to 
quash the Affidavit nor did they attack it in any manner 
but, on the contrary, at their arraignment, entered pleas 
of not guilty. At the beginning of the trial the Court re­
iterated these facts and asked the Attorney for the De­
fendants if a plea of not guilty was still his plea at the 
morning of the trial. The Defense counsel answered 
“That is the plea.” (T-2)

The case proceeded on the issue made by the plea of 
not guilty and the trial court and the appellate court 
found that the evidence was sufficient to uphold a judg­
ment of guilty and a sentence for the violation of the 
ordinance.



11

II

THE DECISION BELOW IS CLEARLY CORRECT
The trial court did not err in refusing to grant the 

Defendants a verdict of acquittal on the second ground 
interposed: “ The ordinance, as promulgated and as en­
forced by the City of Tallahassee, is in violation of the 
Constitution of the State of Florida, the Constitution of 
the United States; * * * in that the salient parts of this 
ordinance ostensibly require seating passengers in order 
to distribute weight, avoid health hazards, preserve 
peace, tranquility and good order, and numerous other 
illusory and certainly almost mythical factors.”

The ordinance, on its face, does not have the effect of 
depriving the Defendants of their liberty or their prop­
erty without due process of law, and on its face, is a 
reasonable exercise of police power in the seating ar­
rangement requirement provided therein.

In fact the Defendants Herndon and Speed in their 
sworn petition filed in the United States District Court 
for the Northern District of Florida, Civil Action No. 
603, have stated under oath:

“ That while this ordinance purports to make a valid 
classification, its operation and application for all 
practical purposes are discriminary on account of 
race and in violation of Title 18 U. S. Code Section 
242.” (City of Tallahassee Exhibit B (T 57-60)).

The Defendants, therefore, admit that the ordinance 
makes a valid classification but complain that its opera­
tion and application make it discriminatory. Thus, the 
statute is constitutional because, on its face, it estab­
lishes a reasonable classification and does not have the 
effect of depriving Defendants of their liberty or prop­
erty without due process of law, nor does it have as its 
only basis for assignment the prohibited standard of race.



12

See Yick Wo vs. Hopkins, 118 U. S. 356, and Davis vs. 
Schmell, 81 Fed. Supp. 872, affirmed 336 U. S. 933. Nor 
is there any testimony to show that the operation of the 
statute or the enforcement of the statute by the City of 
Tallahassee is in violation of the Constitution of the 
United States, nor does the operation or enforcement 
have the effect of depriving defendants of their liberty 
or property without due process of law or as having im­
plied as its only basis for assignment the prohibited 
standard of race.

The testimony of the driver is uncontradicted that he 
was instructed to assign seats according to weight of the 
persons boarding the bus; to take into consideration the 
possibility of collision in distributing this weight; to as­
sign seats, taking into consideration health hazards; to 
assign passengers to seats in such manner as to preserve 
peace, tranquility and good will of the community. He 
testified that he was not instructed to refrain from as­
signing seats to colored and white persons together. 
He was asked this direct question:
“Q. Were you instructed to refrain from assigning seats

to colored and white passengers together?
*  *  *  *  *

“A. No.” (T  22-24)
* $ . £  * *

“Q, * * * were you instructed to assign passengers 
boarding the bus to seats in such a manner as to 
preserve the peace, tranquility and good will of the 
community?

“A. Yes.
* * * * *
“Q. * * * did you make a study of Ordinance No. 741, 

and all the factors involved therein?
“A. Yes.



13

“Q. And since January 7, 1957, you have been seating 
all passengers on the bus that you are operating 
according to these standards set by Ordinance No. 
741? Is that correct?

“A. Yes.” (T 24-25)
The Defendants offered no evidence to the contrary 

and there is no evidence in this record that the basis 
of assignment was ever the prohibited standard of race. 
In fact, there is no evidence in the record as to the race, 
creed or color of the Defendants or any of the persons 
involved in this controversy. As far as the record goes 
these Defendants could be all negroes, or they could all 
be white.

When counsel, in their brief, state:
“ Tallahassee cannot accomplish indirectly by this 
ordinance that which it is prohibited from doing 
directly by the dictates of the requirement of equal 
protection; for even if the ordinance in question 
can be said to be fair on its face, the record discloses 
that here it was in fact used to separate Negro and 
white passengers solely because of their race, no 
other reason for the separation appearing.”

they bring a matter into Court which is not in the record 
and is no fair inference from the factual situation as pre­
sented by the record. The statement “ the record discloses 
that here it was in fact used to separate Negro and white 
passengers solely because of their race” is untrue. The 
record shows that the undisputed sworn testimony of 
the driver of the bus is to the contrary.

The Supreme Court of the United States in the case 
of the United Automobile Aircraft and Agricultural Im­
plement Workers of America vs. Wisconsin Employment 
Relations Board, 350 U. S. 521, stated:

“This general rule does not take from the States 
power to prevent mass picketing, violence, and overt



14

threats of violence. The dominant interest of the 
State in preventing violence and property damage 
cannot be questioned. It is a matter of genuine local 
concern. * * *
“The States are the natural guardians of the public 
against violence. It is the local communities that 
suffer most from the fear and loss occasioned by 
coercion and destruction. We would not interpret 
an act of Congress to leave them powerless to avert 
such emergencies without compelling directions to 
that effect.”

CONCLUSION
For the foregoing reasons it is respectfully submitted 

that this Petition for a Writ of Certiorari 
denied.

;  .. T ^  X "

Leo L. Foster 
P. O. Box 669 
Tallahassee, Florida 
Counsel for Respondent.

should be

March 5, 1958



15

APPENDIX A 

CASE NO. 60022
IN THE MUNICIPAL COURT OF THE 
CITY OF TALLAHASSEE, FLORIDA

Charge

Violation of Seating Arrange­
ment Ordinance, Park and Mon­
roe, Within the City Limits of 
the City of Tallahassee, Florida, 
on the 19 day of January, 1957, 
contrary to the Laws and Ordi­
nances of said City. Defendant 
arranged and plead not guilty.

JUDGMENT
After hearing the evidence and duly considering the 

same, the Court found the Defendant guilty of the charge 
and pronounced the following sentence, to-wit: the sen­
tence of the law and the judgment of the Court is that 
you pay a fine of $500 dollars and in default of said fine, 
that you be confined to the City Jail for a period of 60 
days until this judgment is satisfied, & 60 days.
Date Sentenced 2-27-57

City of Tallahassee, 
vs.

Joseph Spagna

/ s /  JOHN A. RUDD 
Municipal Judge



16

CASE NO. 60023
IN THE MUNICIPAL COURT OF THE 
CITY OF TALLAHASSEE, FLORIDA

Charge

Violation of Seating Arrange­
ment Ordinance, Park and Mon­
roe, Within the City Limits of 
the City of Tallahassee, Florida, 
on the 19 day of January, 1957, 
contrary to the Laws and Ordi­
nances of said City. Defendant 
arranged and plead not guilty.

JUDGMENT

After hearing the evidence and duly considering the 
same, the Court found the Defendant guilty of the charge 
and pronounced the following sentence, to-wit: the sen­
tence of the law and the judgment of the Court is that 
you pay a fine of $500 dollars and in default of said fine, 
that you be confined to the City Jail for a period of 60 
days until this judgment is satisfied, & 60 days.
Date Sentenced 2-27-57

City of Tallahassee, 
vs.

Johnny Herndon

/ s /  JOHN A. RUDD 
Municipal Judge



17

CASE NO. 60024
IN THE MUNICIPAL COURT OF THE 
CITY OF TALLAHASSEE, FLORIDA

Charge

Violation of Seating Arrange­
ment Ordinance, Park and Mon­
roe, Within the City Limits of 
the City of Tallahassee, Florida, 
on the 19 day of January, 1957, 
contrary to the Laws and Ordi­
nances of said City. Defendant 
arranged and plead not guilty.

JUDGMENT

After hearing the evidence and duly considering the 
same, the Court found the Defendant guilty of the charge 
and pronounced the following sentence, to-wit: the sen­
tence of the law and the judgment of the Court is that 
you pay a fine of $500 dollars and in default of said fine, 
that you be confined to the City Jail for a period of 60 
days until this judgment is satisfied, & 60 days.
Date Sentenced 2-27-57

City of Tallahassee, 
vs.

Leonard D. Speed

,/s/ JOHN A. RUDD 
Municipal Judge



18

APPENDIX B

ARTICLE V. JUDICIAL DEPARTMENT 

§ 1. Courts

Section 1. The judicial power of the State of Florida 
is vested in a supreme court, district courts of appeal, cir­
cuit courts, Court of Record of Escambia County, crimi­
nal courts of record, county courts, county judge’s courts, 
juvenile courts, courts of justices of the peace, and 
such other courts, including municipal courts, or com­
missions, as the legislature may from time to time ordain 
and establish. [Adopted general election, Nov. 6, 1956.1

§ 3. Practice and Procedure

Section 3. The practice and procedure in all courts 
shall be governed by rules adopted by the supreme court. 
[Adopted general election Nov. 6, 1956.1

§ 4. Supreme Court

Section 4. (a ) Organization. The supreme court shall 
consist of seven members, one of whom shall be the chief 
justice. Five justices shall constitute a quorum, but the 
concurrence of four shall be necessary to a decision.

(b ) Jurisdiction. Appeals from trial courts may be 
taken directly to the supreme court, as a matter of right, 
only from judgments imposing the death penalty, from 
final judgments or decrees directly passing upon the 
validity of a state statute or a federal statute or treaty, 
or construing a controlling provision of the Florida or 
federal constitution, and from final judgments or decrees 
in proceedings for the validation of bonds and certificates 
of indebtedness. The supreme court may directly review 
by certiorari interlocutory orders or decrees passing upon



19

chancery matters which upon a final decree would be di­
rectly appealable to the supreme court. In all direct 
appeals and interlocutory reviews by certiorari, the su­
preme court shall have such jurisdiction as may be neces­
sary to complete determination of the cause on review.

Appeals from district courts of appeal may be taken 
to the supreme court, as a matter of right, only from de­
cisions initially passing upon the validity of a state 
statute or a federal statute or treaty, or initially constru­
ing a controlling provision of the Florida or federal con­
stitution. The supreme court may review by certiorari 
any decision of a district court of appeal that affects a 
class of constitutional or state officers, or that passes upon 
a question certified by the district court of appeal to be 
of great public interest, or that is in direct conflict with 
a decision of another district court of appeal or of the 
supreme court on the same point of law, and may issue 
writs of certiorari to commissions established by law.

The supreme court may issue writs of mandamus and 
quo warranto when a state officer, board, commission, or 
other agency authorized to represent the public gener­
ally, or a member of any such board, commission, or 
other agency, is named as respondent, and writs of prohi­
bition to commissions established by law, to the district 
courts of appeal, and to the trial courts when questions 
are involved upon which a direct appeal to the supreme 
court is allowed as a matter of right.

The supreme court may issue all writs necessary or 
proper to the complete exercise of its jurisdiction.

The supreme court or any justice thereof may issue 
writs of habeas corpus returnable before the supreme 
court or any justice thereof, or before a district court of 
appeal or any judge thereof, or before any circuit judge.



20

The supreme court shall provide for the transfer to the 
court having jurisdiction of any matter subject to review 
when the jurisdiction of another appellate court has been 
improvidently invoked.

(c )  Chief Justice. The chief justice of the supreme 
court shall be chosen by the members of the court and 
shall serve for a term of two years. In the event of a va­
cancy, a successor shall be chosen within sixty days for 
a like term. During a vacancy or whenever the chief 
justice is unable to act for any reason, the justice longest 
in continuous service and able to act shall act as chief 
justice.

(d ) Clerk and Marshal; Process. The supreme court 
shall appoint a clerk and a marshal who shall hold office 
during the pleasure of the court and perform such duties 
as the court directs. Their compensation shall be fixed 
by law. The marshal shall have the power to execute the 
process of the court throughout the state, and in any 
county may deputize the sheriff or a deputy sheriff for 
such purpose. [Adopted general election Nov. 6, 1956.1

§ 5. District Courts of A ppeal

Section 5. (a ) Appellate Districts. The state shall be 
divided into three appellate districts of contiguous coun­
ties as the legislature may prescribe.

(b ) Organization; number and selection of judges. A 
district court of appeal shall be organized in each appel­
late district. There shall be three judges of each district 
court of appeal. Not less than three judges shall consider 
each case and the concurrence of a majority shall be nec­
essary to a decision. The court shall hold at least one 
session every year in each judicial circuit within the dis­
trict wherein there is ready business to transact.



21

The judges of the district courts of appeal organized 
hereunder shall be selected as follows: Between June 
first and July first, 1957, the governor shall appoint three 
persons to serve as judges of each district court of appeal 
until their successors are elected, as herein provided. The 
judges so appointed shall take office and assume their 
duties on July first, 1957, and shall serve for a term to 
be designated by the governor in accordance with the fol­
lowing schedule: The governor shall appoint one judge 
in each district for a term expiring on the first Tuesday 
after the first Monday in January 1959, following the 
election of his successor at the general election in No­
vember 1958, which judges shall be identified as Group 
“A ” ; one judge in each district for a term expiring on 
the first Tuesday after the first Monday in January 1961, 
following the election of his successor at the general 
election in November 1960, which judges shall be identi­
fied as Group “B” ; and one judge in each district for a 
term expiring on the first Tuesday after the first Monday 
in January 1963, following the election of his successor 
at the general election in November 1962, which judges 
shall be identified as Group “C” .

The successors of the original judges of the district 
courts of appeal shall be elected at the general election 
next preceding the expiration of their respective terms 
of office.

(c )  Jurisdiction. Appeals from trial courts in each 
appellate district, and from final orders or decrees of 
county judge’s courts pertaining to probate matters or 
to estates and interests of minors and incompetents, may 
be taken to the court of appeal of such district, as a mat­
ter of right, from all final judgments or decrees except 
those from which appeals may be taken direct to the 
supreme court or to a circuit court.

The supreme court shall provide for expeditious and 
inexpensive procedure in appeals to the district courts



22

of appeal, and may provide for review by such courts of 
interlocutory orders or decrees in matters reviewable by 
the district courts of appeal.

The district courts of appeal shall have such powers 
of direct review of administrative action as may be pro­
vided by law.

A district court of appeal or any judge thereof may 
issue writs of habeas corpus returnable before that dis­
trict court of appeal or any judge thereof, or before any 
circuit judge in that district. A  district court of appeal 
may issue writs of mandamus, certiorari, prohibition, 
and quo warranto, and also all writs necessary or proper 
to the complete exercise of its jurisdiction.

(d ) Clerks and Marshals. Each district court of ap­
peal shall appoint a clerk and a marshal who shall hold 
office during the pleasure of the court and perform such 
duties as the court may direct. Their compensation shall 
be fixed by law. The marshal shall have power to exe­
cute the process of the court throughout the state, and in 
any county may deputize the sheriff or a deputy sheriff 
for such purpose. [Adopted general election Nov. 6, 
1956.1

§ 6. Circuit Courts

Section 6. (a ) Judicial Circuits. The legislature may 
establish not more than sixteen judicial circuits each 
composed of a county or contiguous counties and of not 
less than fifty thousand inhabitants according to the last 
census authorized by law, except that the county of Mon­
roe shall constitute one of the circuits.

(b ) Circuit Judges. The legislature shall provide for 
one circuit judge in each circuit for each fifty thousand 
inhabitants or major fraction thereof according to the



23

last census authorized by law. In circuits having more 
than one judge the legislature may designate the place 
of residence of any such additional judge or judges.

(c )  Jurisdiction. The circuit courts shall have exclu­
sive original jurisdiction in ail cases in equity except such 
equity j urisdiction as may be conlerred on juvenile courts, 
in ail cases at law not cognizable by subordinate courts, in 
ail cases involving the legality of any tax, assessment, or 
toll, in the action of ejectment, in all actions involving 
the titles or boundaries of real estate, and in all criminal 
cases not cognizable by subordinate courts. They shall 
have original jurisdiction of actions of forcible entry and 
unlawful detainer, and of such other matters as the legis­
lature may provide. They shall have final appellate juris­
diction in ail civil and criminal cases arising in the county 
court, or before county judges’ courts, of all misdemean­
ors tried in criminal courts of record, and of all cases 
arising in municipal courts, small claims courts, and 
courts of justices of the peace. The circuit courts and 
judges shall have power to issue writs of mandamus, in­
junction, quo warranto, certiorari, prohibition, and habeas 
corpus, and all writs necessary or proper to the complete 
exercise of their jurisdiction.

The circuit courts and circuit judges shall have such 
extra-territorial jurisdiction in chancery cases as may 
be prescribed by law.

(d ) Court Commissioners. A circuit judge may ap­
point in each county in his circuit one or more attorneys 
at law, to be court commissioners, who shall have power 
in the absence from the county of the circuit judge, to 
allow writs of injunction and to issue writs of habeas 
corpus, returnable before himself or the circuit judge. 
Their orders in such matters may be reviewed by the 
circuit judge, and confirmed, qualified or vacated. They 
may be removed by the circuit judge. The legislature



24

may confer upon them further powers, not judicial, and 
shall fix their compensation.

(e ) Recommendation to Attorney General; Report to 
Legislature. It shall be the duty of the judges of the cir­
cuit courts to report to the attorney general at least thirty 
days before each session of the legislature such defects 
in the laws as may have been brought to their attention, 
and to suggest such amendments or additional legislation 
as may be deemed necessary. The attorney general shall 
report to the legislature at each session such legislation 
as he may deem advisable.

( f )  State Attorneys. In each judicial circuit a state 
attorney shall be elected by the qualified electors of that 
circuit in the same manner as other state and county 
officials, to serve a term of four years and to fulfill duties 
prescribed by law.

(g ) Clerks of the Circuit Courts. In each county a 
clerk of the circuit court, who shall also be clerk of the 
board of county commissioners, recorder, and ex officio 
auditor of the county, shall be elected by the qualified 
electors of that county in the same manner as other state 
and county officials, to serve a term of four years and to 
fulfill duties prescribed by law. [Adopted general elec­
tion Nov. 6, 1956.1



25

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Brief for 

the Respondent The City of Tallahassee, Florida, In Op­
position, has been furnished by Air Mail, postage pre­
paid, to the following counsel in compliance with Rule 
33, Section 3, Subsection b, Supreme Court Rules.

Thurgood M arshall 
10 Columbus Circle 
Suite 1790 
New York 19, N. Y.

Constance Baker M otley 
10 Columbus Circle 
Suite 1790 
New York 19, N. Y.

Francisco A. Rodriguez 
703 Harrison Street 
Tampa, Florida

L eo L. Foster 
Counsel for Respondent

This 5th day of March, A. D. 1958.