Patterson v. Bailey Appendices to Petition of City of Jackson

    IN  TH E

S U P R E M E  CO U R T OF T H E  U N I T E U  STAT ES
OCTOBER TERM, 1963

No.

JOE T. PATTERSON, ET AL, Petitioners,

vs.

SAMUEL BAILEY, ET AL, Respondents.

APPENDICES TO PETITION OF CITY OF JACKSON; 
ALLEN THOMPSON, DOUGLAS L. LUCKEY AND 
THOMAS B. MARSHALL, COMMISSIONERS OF THE 
CITY OF JACKSON, AND W. D. RAYFIELD, CHIEF 
OF POLICE OF THE CITY OF JACKSON, AND JACK- 
SON MUNICIPAL AIRPORT AUTHORITY, A PUBLIC 
BODY CORPORATE, FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT.

E . W . S te n n e tt ,
Jackson City Attorney,
Jackson, Mississippi,

T hom as H. W a t k in s ,
Suite 800—Plaza Building, 
Jackson, Mississippi,

Attorneys for the City of 
Jackson and Officials.

J o h n  M. K uyken dall ., J r .,
Suite 829—Deposit Guaranty 
Bank Bldg.,
Jackson, Mississippi,

Attorney for Jackson Municipal 
Airport Authority.



INDEX
Page

A ppen d ix  A — Order of Three-Judg*e Court of No­
vember 17, 1961.................................... 1

A ppen d ix  B —Opinion of Three-Judge Court. 199
F.Supp. 595 .........................................  2

A ppen d ix  C —Dissenting Opinion, Three-Judge
Court. 199 F.Supp. 603..................... 27

A ppen d ix  D —Opinion, Supreme Court, December 
18, 1961, denying injunctive relief
pendente l ite ........................................ 54

A ppen dix  E —Opinion, Supreme Court, February 26,
1962, remanding to District Court.
369 U.S. 31, 7 L.ed.2d 512................... 56

A ppen d ix  F —Opinion and Declaratory Judgment of
District Court, May 3, 1962.................  62

A ppen dix  G — Oral Amendment to Findings of Fact,
District Court, May 31, 1962. R. 843 68

A ppen d ix  H— Supplemental Findings of Fact, Con­
clusions of Law and Declaratory Judg­
ment, District Court, July 25, 1962. . . 70

A ppen d ix  I — Opinion of District Court in letter
form, August 24, 1962. R. 850.........  74

A ppen dix  J — Order of District Court of August 24,
1962, overruling in part and sustaining 
in part Motion to amend Supplemental 
Findings of Fact, Conclusions of Law
and Declaratory Judgment................. 76

A ppen d ix  K —Opinion, Court of Appeals, September
24, 1963. 323 F.2d 201.....................  79

A ppen dix  L —Judgment of Court of Appeals, Sep­
tember 24, 1963.................................... 95

A ppen d ix  M—Order of Court of Appeals denying 
Petition for Rehearing, November 8,
1963 ......................................................  96

—9488-8



11 IN D E X

Page
A ppen d ix  N—Order staying mandate for sixty days,

November 15,1963................................  97
A ppen dix  0  —Segregation Statutes of Mississippi. . 98
A ppen dix  P —Ordinance of the City of Jackson, Mis­

sissippi .................................................  102
A ppen d ix  Q — Breach o f  the Peace Statutes o f  the

State of Mississippi............................  105
A ppen dix  R —Mississippi Statutes Re : Municipal

Airport Authority................................  109



APPENDIX “ A ”

[705] (R-838) Order

(Title Omitted—Filed Nov. 17, 1961)
Pursuant to the opinion of the Court filed herein on No­

vember 17, 1961, it is now ordered by the Court that juris­
diction of this action is retained, but that all further [706] 
proceedings herein he stayed for a reasonable length of time 
for the parties to repair to the State Court in which such 
issues may he now pending, or in any court of the state 
where any of the parties hereto may elect to institute an 
action for the adjudication of the issues.

Ordered, this the 17th day November, 1961.

United States Circuit Judge.
/ s /  S id n ey  C. M ize ,
United States District Judge.
/ s /  C laude  F. C la y to n ,
United States District Judge.

Order Book 1961 at page 542.
# # # # # # #

(1)



2

APPENDIX “ B”

(Filed—Nov. 17, 1961)

M ize , District Judge:
The plaintiffs in this case are Samuel Bailey, Joseph 

Broadwater and Burnett L. Jacob, each of whom is an 
adult Negro citizen of the United States and the State 
of Mississippi, who filed their complaint herein on June 
9, 1961. The defendants in the case as shown by the 
amended complaint are Joe T. Patterson, The City of 
Jackson, Allen C. Thompson, Douglas L. Luckey, W. D. 
Bayfield, Jackson Municipal Airport Authority, Continental 
Southern Lines, Inc., Southern Greyhound Lines, Illinois 
Central Railroad, Inc., Jackson City Lines, Inc., Cicero 
Carr. Each of the defendants has filed an answer to the 
amended complaint, setting out their defenses. The issues 
are clearly defined by these pleadings. The amended com­
plaint was in substance a substitution of the original 
complaint.

It is the contention of the plaintiffs that Sections [631] 
2351, 2351.5, 2351.7, 7784, 7785, 7786, 7786-01, 7787, and 
7787.5 of the Code of Mississippi of 1942 are unconstitu­
tional ; that the defendants are seeking to enforce these stat­
utes; and that a preliminary injunction should be issued 
enjoining the defendants and each of them and their suc­
cessors from enforcing any of these statutes or any other 
statutes requiring racial segregation on common carriers 
or in the facilities maintained by common carriers. Plain­
tiffs further contend that the defendant, City of Jackson 
and its officials are enforcing an ordinance of the City of 
Jackson adopted January 12, 1956, and contend that this 
ordinance of the City is unconstitutional on its face, but 
that notwithstanding its unconstitutionality, the defendants, 
City of Jackson and its officials, have threatened to enforce 
this ordinance against the plaintiffs and members of their 
class. Plain-(R-729) tiffs further contend that the defen­
dants and each of them, acting under color of the laws of

[630] (R-728) Opinion- op T hree-J udge C ourt



3

the state of Mississippi and under color of Sections 2087.5, 
2087.7 and 2089.5 of Mississippi Code of 1942, have pur­
sued and will continue to pursue a policy and custom of 
segregation of negro and white persons on common car­
riers in the State of Mississippi unless restrained, and 
they contend further that they have no other speedy or 
adequate remedy at law other than by injunction. Plain­
tiffs pray for the organization of a three-judge court as 
required by Title 28 USC, Section 2284, and pray for 
the issuance of preliminary and permanent injunction en­
joining [632] each of the defendants from enforcing or 
attempting to enforce any of the aforementioned statutes 
or any other statute of the State of Mississippi requiring 
segregation; pray for an injunction enjoining the City 
of Jackson or any of its officers from enforcing any of 
the ordinances of the City of Jackson hereinabove referred 
to; to enjoin the defendants and each of them from con­
tinuing to enforce any policy or custom under color of 
State law or City ordinances of segregating negro and 
white passengers on common carriers or in facilities main­
tained by any common carrier, from continuing to enforce 
any policy or custom of segregating the races in the 
facilities and services of the Jackson Municipal Airport 
or its restaurant operated by Cicero Carr, and from con­
tinuing to arrest, intimidate or threaten to arrest members 
of their class in connection with the exercise of their 
Federally protected right to use inter and intra state 
transportation and services without segregation or dis­
crimination because of their race.

The defendants and each of them in their answers deny 
that they are enforcing or attempting to enforce any of 
the statutes against the plaintiffs or any of their class 
because of their race. Defendants contend that this is 
the type of action wherein the Federal Court should abstain 
from (R-730) passing on these statutes until the State 
courts have first had an opportunity to pass on its own 
laws and city ordinances.
[633] All the defendants contend that no injunction 
should issue against either of the defendants. More spe­
cifically, the defendant Joe T. Patterson contends that this



4

is not properly a class action; that the amended complaint 
raises factual and legal controversy involving unsettled 
questions of state law which should properly be decided 
first by the Supreme Court of Mississippi in order to avoid 
unnecessarily deciding constitutional questions, and that 
there is a full and adequate procedure existing in the state 
tribunals of the state for the plaintiffs to assert all of their 
rights and privileges claimed by this suit; and that none 
of the laws of the State of Mississippi that are complained 
of in the amended complaint have ever been presented to 
the highest tribunal or any other court of the State of 
Mississippi for adjudication. The Attorney General fur­
ther contends that in effect this suit against the Attorney 
General in his official capacity is an action against the 
State of Mississippi, which, under the provisions of the 
Eleventh Amendment to the Constitution could not be main­
tained without its consent, and further, that the complaint 
attacks the enforcement of parts of the criminal laws of 
the State of Mississippi which have been passed in the 
sovereign capacity of the State for the purpose of pro­
tecting all persons of the state against domestic violence, 
and undertakes to prevent the enforcement of the ordi­
nances of the City of Jackson and to prevent the State 
officials of Mississippi from enforcing Sections 2087.5, 
2089.5 of the Mississippi Code of 1942. "(These statutes are 
2087.7 and [634] set out in Appendix I). He contends that 
these statutes are constitutional and are not being uncon­
stitutionally enforced. He further contends that this ac­
tion constitutes an attempt to control the law enforcement 
officials of the City of Jack- (R-731) son, as well as the State 
of Mississippi in the exercise of their valid discretionary 
powers and authority.

The defendants, City of Jackson and Allen Thompson, 
its Mayor, the Commissioners and Chief of Police contend 
that the amended complaint raises primarily factual issues 
and that the primary issue raised by the amended com­
plaint involves the arrest of the so-called Freedom Riders 
under Sections 2087.5 et seq. of the Code of 1942 and that 
the arrest of the Freedom Riders was legitimate and in 
accord with these sections, and that these sections were not



0

unconstitutionally enforced. They contend specifically that 
there was no effort to enforce segregation laws by the ar­
rests, but simply to maintain law and order and to prevent 
breaches of the peace. They further contend that this 
Court should abstain from passing on the constitutionality 
of these Acts until passed upon by the Supreme Court of 
Mississippi and contend, also, that the City of Jackson 
is an agency of the State of Mississippi and, therefore, not 
subject to suit.

The defendants, Continental Southern Lines, Inc., South­
ern Greyhound Lines, Illinois Central Railroad, Inc., Jack- 
son City Lines, Inc,, Jackson Municipal Airport Authority 
and Cicero Carr contend that they have not caused the 
arrest [635] of anyone and that they are not seeking to 
enforce the segregation laws of the State of Mississippi, 
and contend that no injunction should issue against them, 
for the reason that the plaintiffs have a full, complete and 
adequate remedy at law to redress any grievances they 
may have.

Briefly, these are the main contentions of the respective 
parties as reflected by the pleadings in this case.

The majority of the Court has reached the conclusion 
that under the issues as raised by the pleadings in this 
case it is the duty of this court to abstain from passing 
on the issues, but retain the cause of action on its docket 
and remit the plaintiffs to the State Courts of Mississippi 
for (R-732) a prior adjudication of the issues and of the 
scope and meaning of its own statutes as so defined. This 
Court should simply stay its hand until the adequate and 
proper remedies provided for by the statutes of the State 
of Mississippi should be exhausted. By this procedure 
the comity existing between the Federal Courts and the 
State Courts would be maintained without any serious in­
jury to anyone. With the exception of Sections 2351 and 
7784,1 the sections of the [636] Mississippi Code complained 1

1 The Mississippi Supreme Court in Louisville, N.O. & T.R. Co. v. State, 
66 Miss. 662, 6 So. 203, held that the Mississippi Act o f March 2, 1888, 
now Sections 2351 and 7784, Mississippi Code 1942, Recompiled, applied 
solely to (R-733) commerce within the state and affirmed a conviction based



6

of and the constitutionality of which is under attack 
herein have never been passed upon by the Supreme Court 
of Mississippi. These sections 2351, 2351.5, 2351.7, 7784, 
7785, 7786, 7786-01, 7787, and 7787.5 of the Mississippi Code 
of 1942 as amended are set out in Appendix II to this 
opinion. Before this Court should pass upon the constitu­
tionality of these statutes in this particular case, wherein 
it is shown by the contentions of the parties that there 
will be factual issues as well as the constitutionality of the 
statutes involved, the courts of the State of Mississippi 
should be afforded an opportunity to pass upon them.

This equitable principle of abstention is well supported 
by the decisions of the Supreme Court of the United 
States, as well as by many of the decisions of the various 
Courts of Appeal and District Courts. It will not be neces­
sary to refer to all the decisions that have adhered to this 
[637] doctrine, but the quotations from a few of the 
leading cases will be decisive. Probably the one most 
nearly in point is the case of Harrison, Attorney General 
of Virginia, et al v. National Association for the Advance­
ment of Colored People, et al, 360 IT.S. 167, in which it 
was held by the Supreme Court of the United States that 
the Federal Courts should not adjudicate the constitu­
tionality of state enactments fairly open to interpretation 
until the State Courts have been afforded a reasonable 
opportunity to pass upon them. (R-734) The court said:

on a violation of the Act. In affirming, the United States Supreme Court 
held, in Louisville, N. 0. & T. B. Co. v. Mississippi, 1889, 133 U. S. 587, 
that a state may require railroads to provide separate accommodations for 
the white and colored races without violating the commerce clause of the 
Constitution so long as the statute applies only to commerce within the 
state.

Tn 1912, the Mississippi Supreme Court held, in Alabama d■ V. By. Co. 
v. Morris, 103 Miss. 511, 60 So. 11, that Sections 4059 and 1351, Mississippi 
Code 1906, now Sections 2357 and 7784, applied to interstate travelers 
and was a reasonable exercise of the police power of the state, and, in 
1919, the Mississippi Supreme Court held that Section 4059, Mississippi 
Code 1906, now Section 7784, Mississippi Code 1942, Recompiled, did not 
violate either the commerce clause of, or the Fourteenth Amendment to, 
the federal Constitution. Illinois Central B. Co. v. Bcdmond, 119 Miss 
765, 81 So. 115.



7

“ According every consideration to the opinion of the 
majority below, we are nevertheless of the view that the 
District Court should have abstained from deciding the 
merits of the issues tendered it, so as to afford the Vir­
ginia courts a reasonable opportunity to construe the three 
statutes in question. * * *

“ This now well-established procedure is aimed at the 
avoidance of unnecessary interference by the federal 
courts with proper and validly administered state con­
cerns, a course so essential to the balanced working of 
our federal system. To minimize the possibility of such 
interference a ‘ scrupulous regard for the rightful inde­
pendence of state governments . . . should at all times 
actuate the federal courts.’ Matthews v. Rodgers, 284 
IT. S. 521, 525, as their ‘ contribution . . .  in furthering 
the harmonious relationship between state and federal 
authority . . . ’ Railroad Comm’n v. [638] Pullman Co., 
312 U. S. 496, 501. In the service of this doctrine, which 
this Court has applied in many different contexts, no prin­
ciple has found more consistent or clear expression than 
that the federal courts should not adjudicate the constitu­
tionality of state enactments fairly open to interpretation 
until the state courts have been afforded a reasonable 
opportunity to pass upon them. See e.g., Railroad Comm’n 
v. Pullman Co., supra; Chicago v. Fieldcrest Dairies, Inc., 
316 U.S. 168; Spector Motor Service, Inc., v. McLaughlin, 
323 U.S. 101; American Federation of Labor v. Watson, 
327 U.S. 582; Shipman v. DuPre, 339 U.S. 321; Albertson 
v. Millard, 345 U.S. 242; Government & Civic Employees 
v. Windsor, 353 U.S. 364. This principle does not, of 
course, involve the abdication of federal jurisdiction, but 
only the postponement of its exercise; it serves the policy 
of comity inherent in the doctrine of abstention; and it 
spares the federal courts of unnecessary constitutional ad­
judication. See Chicago v. Fieldcrest Dairies, Inc., supra, 
at 172-173.

“ The present case, in our view, is one which calls for 
(R-735) the application of this principle, since we are 
unable to agree that the terms of these three statutes leave 
no reasonable room for a construction by the Virginia



8

courts which might avoid in whole or in part the necessity 
for federal constitutional adjudication, or at least mate­
rially change the nature of the problem.”
[639] The Court said, further: “ We do not intimate the 
slightest view as to what effect any such determinations 
might have upon the validity of these statutes. All we 
hold is that these enactments should be exposed to state 
construction or limiting interpretation before the federal 
courts are asked to decide upon their constitutionality, so 
that federal judgment will he based on something that is a 
complete product of the state, the enactment as phrased 
by its legislature and as construed by its highest court.”

Just as was said by the Supreme Court of the United 
States, supra, wo do not in this case undertake to pass upon 
any of the issues that have been raised, nor do we intimate 
whether the statutes are constitutional or unconstitutional, 
for the reason that the courts of the State of Mississippi 
should he permitted to pass upon these questions, unin­
fluenced by any adjudication or intimation of ours as to the 
statutes. We have given careful consideration not only 
to the opinion of the majority of the Court in that case 
and the governing rule announced by it, but we also have 
considered the thinking of Mr. Justice Douglas, who dis­
sented, in which he was joined by the Chief Justice and 
Mr. Justice Brennan, whose opinion set out the history 
and doctrine, considering also the decisions cited in the 
dissenting opinion. However, as a general rule, every 
lawsuit must be determined by the issues raised in the 
pleadings in the particular case, and it is our view that 
in this particular case, where the con- [640] stitionality of 
the statutes of Mississippi is questioned and has never 
been passed upon by the highest court of the (R-736) State, 
a sound discretion requires that the federal courts abstain. 
In the case of Spector Motor Co. v. McLaughlin, 323 U. S. 
101, the Supreme Court used this language:

“ If there is one doctrine more deeply rooted than any 
other in the process of constitutional adjudication, it is 
that we ought not to pass on questions of constitutionality— 
here the distribution of the taxing power as between the



9

State and the Nation—unless such adjudication in un­
avoidable. And so, as questions of federal constitutional 
power have become more and more intertwined with prelim­
inary doubts about local law, we have insisted that federal 
courts do not decide questions of constitutionality on the 
basis of preliminary guesses regarding local law.”  (Citing 
authorities).

In connection with Harrison v. N.A.A.C.P., supra, see 
the many authories cited in the dissenting opinion of Judge 
Sterling Hutcheson, 159 Fed. Sup. 535, with reference to 
abstention. In that exhaustive dissent he reviews, at page 
540, et seq., the many authorities upholding this doctrine 
of absention.

We are in thorough accord with the opinion of the Court 
of the Fifth Circuit in the case of Empire Pictures Dis­
tributing Company, Inc., et al v. City of Fort Worth, et al, 
273 Fed. (2) 529, in which the Court upheld the doctrine of 
absention and quotes at length from many of the applicable 
[641] authorities to that doctrine, and particularly appli­
cable to the issues raised in the case here. In that case 
the Court said: “ At the threshold of the case lies the ques­
tion whether the trial court ought not sua sponte to have 
withheld action ‘while the parties repaired to a state 
tribunal for an authoritative declaration of applicable state 
law’.”  The Court then, in a very able opinion, and ex­
haustive, cited the many authorities, quoting from a num­
ber of them to the effect that the trial courts should have 
abstained. We shall not quote at length from that opinion 
more than to say that we adopt it as announcing the con­
trolling principles of the law (R-737) governing us in ab­
stention in this case. In the earlier case of Railroad 
Comm’n of Texas, et al v. Pullman Company, et al, 312 
IT. S. 496, the Supreme Court of the United States said:

“ Few public interests have a higher claim upon the 
discretion of a federal chancellor than the avoidance of 
needless friction with state policies, whether the policy 
relates to the enforcement of the criminal law, Fenner v. 
Boykin, 271 U. S. 240, Spielman Motor Co. v. Dodge, 295 
U. S. 89; or the administration of a specialized scheme for



10

liquidating embarrassed business enterprises, Pennsylvania 
v. Williams, 294 U. S. 176; or the final authority of a state 
court to interpret doubtful regulatory laws of the state, 
Gilchrist v. Interborough Co., 279 IT. S. 159; cf. Hawks 
v. Hamill, 288 IT. S. 52.61. These cases reflect a, doctrine 
of abstention appropriate to our federal system whereby 
the [642] federal courts, ‘ exercising a wise discretion,’ 
restrain their authority because of ‘ scrupulous regard for 
the rig’htful independence of the state governments’ and 
for the smooth working of the federal judiciary. See Cava­
naugh v. Looney, 248 U. S. 453, 457; Hi Giovanni v. Camden 
Ins. Assn., 296 U. S. 64, 73. This use of equitable powers is 
a contribution of the courts in furthering the harmonious 
relation between state and federal authority without the 
need of rigorous congressional restriction of those powers.”

We think the above authorities and those cited below2 
along with those mentioned in the various opinions in the 
cases supra are ample to require that the federal court 
abstain.
(R-738) Moreover, the doctrine of abstention is peculiarly 
applicable in this case because of the attack made upon 
Sections 2087.5, 2087.7 and 2089.5 of the Mississippi Code 
of 1942 generally known as the peace statutes. All the 
authorities hereinbefore cited are applicable to these stat­
utes, but there are other authorities which we think are 
just as applicable and for that reason we are treating these 
separately. [643] As shown by the pleadings, the plain­
tiffs are contending that the defendants are using these 
statutes to enforce segregation and the defendants are 
contending that these statutes are constitutional and are 
not being used to enforce segregation, but are being used 
for the purpose of protecting the public against violence 
and disturbance of the peace. This Court, in the case 
of Wykcoff, had an occasion to pass upon a petition for 
habeas coi’pus growing ont of the arrest of one of the

2 Martin v. Creasy, 360 U. S. 219; County o f Allegheny v. Mashuda Co., 
et al, 360 U. S. 185; Watson v. Buck, 313 U. S. 387; Callaway v. Benton, 
336 U. S. 142; Government and Civic Employees Organization of C.I.O'. 
v. Windsor, 353 U. S. 664; Two Guys from Harrison— Allentown v. 
McGinley, 366 U. S. 589.



11

“ Freedom Riders”  in the City of Jackson, wherein it was 
contended by the petitioner in that case that this statute 
was being used to enforce segregation. Her petition for 
the writ of habeas corpus alleged that she was convicted 
of violation of Section 2087.5 of the Mississippi Code and 
that she did not have any remedy at law other than the 
writ of habeas corpus to secure her release, and that her 
imprisonment was a denial of her due process of law 
under the Fifth and Fourteenth Amendments to the Con­
stitution of the United States. The respondent, the Sheriff 
of Hinds County, in answering the petition for the writ, 
averred that she was convicted in a court having jurisdic­
tion and that he was holding the petitioner by virture 
of a commitment from that court. The matter was heard 
before the Court of the Southern District of Mississippi 
and the writ denied. She immediately petitioned the Court 
of Appeals for the Fifth Circuit for an appeal in forma 
pauperis, that the petition be granted and the case ad­
vanced. The Court of Appeals [644] denied the petition 
and since the opinion has not been published, a copy of 
the opinion rendered by the Court is attached hereto in 
Appendix III.
(R-739) In the trial before the lower court it was con­
tended by petitioner that she had no adequate remedy at 
law, which contention was not upheld, as it was shown 
that under the statutes of Mississippi particularly she did 
have a full, adequate and speedy remedy at law and these 
statutes are set out in the opinion of the District Court. 
196 F. Supp. 515. In that case the Court did retain juris­
diction, but since the petitioner did have adequate remedy 
at law, the writ was denied. In that opinion the Court 
said: “ As heretofore stated, the federal courts are very 
reluctant indeed to interfere with the orderly process of 
a state court involving state matters.”  And cited the 
cases of Davis v. Burke, 179 U. S. 399; Ex Parte Hawk, 
321 U. S. 114; Stock v. Boyle, 342 U. S. 1; Brown v. Allen, 
344 U. S. 443.

It is true that upon an application for a writ of habeas 
corpus there is a federal statute which prohibits the fed­
eral courts from interfering with the state courts, ex­



12

cept in those cases specifically authorized by Congress. 
However, the principle involved is the same, since it is the 
general doctrine that the federal courts should not lend 
their equitable powers and injunctive powers until the state 
courts first have passed upon the constitutionality of its 
own acts. Section 2283, Title 28, U. S. C. A. prohibits a
[645] court of the United States from granting an injunc­
tion to stay proceedings in a state court except as expressly 
authorized by the Act of Congress, or when necessary in 
aid of its jurisdiction, or to protect and effectuate its judg­
ments. In view of that statute the writ of habeas corpus 
was denied in the Wykcoff case, and citing in support 
thereof: Empire Pictures Distributing Co. v. City of Fort 
Worth, 273 Fed.2d 529; Douglas v. City of Jeannette, 319 
U. S. 157.

At pages 163-164 of the City of Jeannette case, supra, 
the Supreme Court of the United States said:
(R-740) “ The power reserved to the states under the 
Constitution to provide for the determination of con­
troversies in their courts may be restricted by federal 
district courts only in obedience to Congressional legisla­
tion in conformity to the Judiciary Article of the Con­
stitution. Congress, by its legislation, has adopted the 
policy, with certain well defined statutory exceptions, of 
leaving generally to the state courts the trial of criminal 
cases arising under state laws, subject to review by this 
Couid of any federal questions involved. * * *

“ * * * No person is immune from prosecution in good 
faith for his alleged criminal acts. Its imminence, even 
though alleged to be in violation of constitutional guaran­
ties, is not a ground for equity relief since the lawfulness
[646] or constitutionality of the statute or ordinance on 
which the prosecution is based may be determined as 
readily in the criminal case as in a suit for injunction. 
* * * Where the threatened prosecution is by state offi­
cers for alleged violations of a state law, the state courts 
are the final arbiters of its meaning and application, sub­
ject only to review by this Court on federal grounds ap­



13

propriately asserted. Hence the arrest by the federal 
courts of the processes of the criminal law within the 
states, and the determination of questions of criminal liabil­
ity under state law by a federal court of equity, are to 
be supported only on a showing of danger of irreparable 
injury ‘ both great and immediate’ . * * #

“ * * * It does not appear from the record that peti­
tioners have been threatened with any injury other than 
that incidental to every criminal proceeding brought law­
fully and in good faith, or that a federal court of equity 
by withdrawing the determination of guilt from the state 
courts could rightly afford petitioners any protection which 
they could not secure by prompt trial and appeal pursued 
to this Court.”
(R-741) The principles announced in the Jeannette case 
have been reaffirmed on the basis of that case and the 
Stefanelli case, 342 U. S. 117, 123-124, in two Supreme 
Court cases decided this year: Wilson v. Schnettler, et al, 
365 U. S. 381, and Tugach v. Dollinger, 365 IT. S. 458. 
These cases are discussed more at length in the Wyckoff 
case, 196 F. Supp. 522- [647] 523.

The whole question of State-Federal relationships and 
their history is discussed in a recent decision of the Court 
of Appeals for the Fifth Circuit in Smith & Son, Inc. v. 
Williams, 275 F. 2d 396. Beginning on page 402 will be 
found a large number of cases applicable to the questions 
before us.

Statutes generally known as peace statutes exist in most 
of the States of the Union and have been applied under 
a variety of circumstances in recent times. They have 
been used by the officers of the States and subdivisions 
thereof to prevent violence and more serious offenses 
where people have gathered, or are threatening to gather 
in numbers under pressure of emotional stress. The public 
press carried an account recently of a congregation of a 
large number of white people when Negroes sought to 
make use of bathing beaches at or near Chicago. It was 
stated that the state officers made use of load speakers



14

to order the crowd to leave the scene or be subject to 
imprisonment under state laws. It was not hinted that 
those who had collected did not have the full right to be 
where they were. Acting under state peace statutes, the 
officers simply required them to move on, because in their 
judgment their presence was likely to lead to a breach 
of the peace. The scope and reach of such statutes varies 
from state, and their application to a given situation makes 
a peculiar call on the judgment of state tribunals before 
such application should be tested in [648] a court of the 
United States.

(R-742) The situation disclosed by the facts in this 
record fall, in our opinion, directly within the scope of 
the decisions of the Supreme Court requiring abstention 
until the State courts have decided the full meaning of their 
respective statutes and their application to the situations 
which are presented to us.

The record before us shows the pendency of a number 
of proceedings before the State Courts of Mississippi under 
the peace statutes, and the class for which the plaintiffs 
here purport to act is already participating in state court 
proceedings where all of the questions raised before us 
may be fully presented with the right of appeal to the 
Supreme Court of the United States.

An order will be entered, therefore, abstaining from 
further action in this cause to give the State Courts of 
Mississippi a reasonable opportunity to act either in the 
cases already pending or in any new case which any of the 
parties may elect to commence.

* * * * * *  #



15

(B-743) A ppen d ix  I

S tatu tes  I nvolved  

Mississippi Code of 1942
p. 2087.5—“ 1. Whoever with intent to provoke a 

breach of the peace, or under circumstances such that 
a breach of [649] the peace may be occasioned thereby:

“ (1) crowd 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 pictures theatre, drive-in, beauty parlor, swim­
ming pool area, or any sports or recreational area 
or place, or any other place of business engaged in 
selling or serving members of the public, or in or 
around any free entrance to any such place of business 
or public 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 munici­
pality, or county, in which such act or acts are com­
mitted, 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 used 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 [650] 
other vehicle engaged in transporting members of the 
public for a fare or charge, causes a disturbance or 
does or says, respectively, any of the matters or 
things mentioned in subsection (2) supra, to, toward, 
or in the presence or any other passenger on said 
vehicle, or any person outside of said vehicle or in the 
process of boarding or departing from said vehicle,



16

or any employee engaged in and about the operation 
of such vehicle, or

“  (4) refusing to leave the premises of another when 
requested so to do by any owner, lessee, or any em­
ployee 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 dol­
lars ($200.00), or imprisonment in the county jail for 
not (R-744) 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 conduct 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 persons shall be maimed, killed or injured, 
then the person guilty of such disorderly conduct as 
defined herein shall be guilty of a felony, and upon 
conviction [651] (R-744) such person shall be im­
prisoned in the Penitentiary not longer than ten (10) 
years.

“ 2. The provisions of this act are supplementary to 
the provisions of any other statute of this state.

“ 3. If any paragraph, sentence, or clause of this 
act shall be held to be unconstitutional or invalid, the 
same shall not affect any other part, portion or provi­
sion of this act, but such other part shall remain in 
full force and effect.”

Source: Laws of 1960.
p. 2087.7—“ 1. It shall be unlawful for any person or 

persons, while in or on the premises of another, whether 
that of an individual person, or a corporation, or a 
partnership, ox- an association, and on which prop­
erty any store, restaurant, sandwich shop, hotel, motel, 
lunch counter, bowling alley, moving picture theatre 
or drive-in theatre, barber shop or beauty shop, or 
any other lawful business is operated which eixgaged



17

in selling articles of merchandise or services or ac­
commodation to members of the public, or engages 
generally in business transactions with members of 
the public, to :

“ (1) prevent or seek to prevent, or interfere with, 
the ownei' or operator of such place of business, or 
his agents or employees, serving or selling food and 
[652] drink, or either, or rendering service or accom­
modation, or selling to or showing merchandise to, or 
otherwise pursuing his lawful occupation or business 
with, customers or prospective customers, or other 
members of the public who may then be in such build­
ing, or

“ (2) prevent or seek to prevent, or interfere with, 
or seek to interfere with, other persons, expressly or 
impliedly invited upon said premises, or prospective 
customers, coming into or frequenting such premises 
in the normal course of the operation of the business 
conducted and carried on upon said premises,
“ shall be guilty of disorderly conduct, a misdemeanor, 
and upon conviction thereof, shall be punished by a 
fine of not more than five hundred dollars ($500.00), 
(R-745) or by imprisonment in the county jail for not 
more than six (6) months, or by both such fine and 
imprisonment.

“ 2. The provisions of this act are supplementary 
to the provisions of any other statute of this state.

“ 3. If any paragraph, sentence, or clause of this 
act shall be held to be unconstitutional, or invalid, the 
same shall not affect any other part, portion or pro­
vision thereof, but such other part shall remain 
in full force and effect.”  Source: Laws of 1960.
[653] p. 2089.5—“ 1. Any person who disturbs the 
public peace, or the peace of others, by violent, or 
loud, or insulting, or profane, or indecent, or offen­
sive, or boisterous conduct or language, or by intimida­
tion, or seeking to intimidate any other person or per­
sons, or by conduct either calculated to provoke a



18

breach of the peace, or by conduct which may lead to 
a breach of the peace, or by any other act, shall be 
guilty of a misdemeanor, and upon conviction thereof, 
shall be punished by a fine of not more than five hun­
dred dollars ($500.00), or by imprisonment in the 
county jail not more than six (6) months, or both.

“ 2. The provisions of this act are supplementary 
to the provisions of any other statute of this state.

“ 3. If any paragraph, sentence or clause of this act 
shall be held to be unconstitutional or invalid, the 
same shall not affect any other part, portion or provi­
sion thereof, but such other part shall remain in full 
force and effect.”  Source: Laws of 1960.

* * * * *

(R-746) A ppen dix  II

S tatutes I nvolved 

Mississippi Code of 1942
p. 2351—“ If any person or corporation operating a 

railroad shall fail to provide two or more passenger 
cars for [654] each passenger train, or to divide the 
passenger cars by a partition, to secure separate ac­
commodations for the white and colored races, as pro­
vided by law, or if any railroad passenger conductor 
shall fail to assign each passenger to the car or com­
partment of the car used for the race to which the 
passenger belongs, he or it shall be guilty of a mis­
demeanor, and, on conviction shall be fined not less 
than twenty dollars nor more than five hundred dol­
lars.”  Source: Code of 1892.

p. 2351.5—“ Every railroad company, bus company 
or other common carrier for hire owning, maintain­
ing or operating a passenger depot, bus station or 
terminal where a waiting room for passengers is main­
tained and operated shall cause to be constructed and 
maintained in connection with such reception or wait-



19

ing room two closets or retiring or rest rooms to be 
exclusively used by white passengers in intrastate com­
merce 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 intra­
state travel” ; and likewise two closets or retiring or 
rest rooms shall be constructed and maintained for 
colored passengers in [655] 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 operator 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 per­
sons 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 
(R-747) 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.

p. 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 [656] be guilty of a misdemeanor and upon con­
viction thereof shall he fined not more than one thou­
sand dollars ($1,000.00) and imprisoned in jail not 
more than sixty (60) days, or both such fine and im­
prisonment.

“ 2. No white person shall enter, frequent, occupy 
or use the colored waiting room of any depot, hus sta-



20

tion 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 wait­
ing room of any depot, bus station or terminal when 
same is marked in bold letters as required by law, ex­
cept, however, regularly employed persons of the owner 
or operator of depots, bus stations or terminals may 
enter same in the discharge of their assigned and re­
quired 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 employees 
[657] be subject to suit for damages on account of such 
common carrier of passengers ir its employees com­
plying with the provisions of this act.

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

p. 7784—'“ Every railroad carrying passengers in 
this state shall provide equal but separate accom­
modations for the white and colored races by provid­
ing two or more passenger cars for each passenger 
train, or by dividing the passenger cars by a partition 
to secure separate accommodations; and the conduc­
tor of such passenger train shall have power, and is 
required, to assign (R-748) each passenger to the car, 
or the compartment of a car, used for the race to 
which such passenger belongs; and should any pas­
senger refuse to occupy the car towhich he or she is 
assigned by the conductor, the conductor shall have 
power to refuse to carry such passenger on the train, 
and for such refusal neither he nor the railroad com-



21

party shall be liable for damages in any court.”  
Source: Code of 1892.

p. 7785—•“ All persons or corporations operating 
street railways and street, or municipal buses, carrying 
passengers in this state, and every common carrier by 
[658] motor vehicle of passengers in this state as de­
fined by section 3(e) of chapter 142 of the laws of 
1938 (p. 7634, Code of 1942), shall provide equal, but 
separate, accommodations for the white and colored 
races.
“ Every common carrier by motor vehicle of passen­
gers in this state, as defined by section 3(e) of chapter 
142 of the laws of 1938 (p. 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 state of 
Mississippi shall use a latticed movable partition ex­
tending 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 ac­
commodation; provided, however, that this act shall 
not apply to buses operated exclusively for the carrying 
of military personnel; and the operators of such pas­
senger buses shall have power, and are required, 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 [659] passenger be permitted 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 compartment to which 
he or she belongs and is assigned, the operator shall 
have 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 oper­
ator shall not be required and shall refuse to take on



22

any further passengers in violation of this act. Even 
though such additional passengers may have purchased 
and may hold tickets for transportation on the said 
bus, the only remedy said passengers shall have for 
failure or refusal to carry them under such circum­
stances is the right to a refund of the cost of his 
ticket, and for said refusal in either case neither the 
operator nor the (R-749) 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.

p. 7786—“ The operators of such street cars and 
street buses and motor vehicles, as defined by chapter 
142 of the laws of 1938 (p.p. 7632-7687, Code of 1942) 
shall have power and are required to assign each 
passen- [660] ger 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 imprison­
ment 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, assigning 
or placing a passenger to the space or compartment 
others than the said one set aside for the race to 
which said passeng'er 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
p. 7786.01—“ Every person or corporation operating 

street railways and street or municipal buses, carrying 
passengers 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



23

(p. 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 tine of twenty-five [661] 
dollars ($25.00) for each offense, and each day’s vio­
lation of the provision hereof shall constitute a separate 
violation of this act; provided, however, that in the 
case of persons or corporations operating street rail­
ways and street or municipal buses, the fine shall be 
ten dollars ($10.00) instead of twenty-five ($25.00). 
Source: Laws of 1944.

p. 7787—“ All officers and directors of street railway 
companies 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 
dollars or be imprisoned in the county jail not less 
than sixty, and not more than six months, and any con­
ductor 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 
(R-750) 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 con­
tained shall be construed as applying to nurses at­
tending children of the other race.”  Source: Code of 
1906.

p. 7787.5—“ 1. In all passenger depots, bus stations 
or terminals owned, operated or leased in the State of 
[662] Mississippi by a railroad company, bus company 
or any other common carrier of passengers, the owner 
or operator thereof shall cause to be constructed and 
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



24

depot, bus station or terminal there shall be con­
structed, provided and maintained a separate Wait­
ing or reception room for the color intrastate passen­
gers, on each entrance to which shall be painted or 
shown in bold letters the following: “ Colored wait­
ing room, intrastate 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 tiled in the county in which such depot, bus sta­
tion or terminal is situated, by either the attorney 
general, the district attorney of the district, or the 
[663] county attorney of the county in which said pas­
senger 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 
district attorney of the district, or county attor­
ney 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 compliance with the provisions of this act, 
and the chancery 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 passengers failing to comply with 
the orders and decrees of the court directing com­
pliance with this act.

“ 3. The requirements of this act shall not be (R- 
751) applicable to any person, firm or corporation op­
erating a place of business wherein said person, firm 
or corporation 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.



25

[664] (R-752) A ppen d ix  III

I n  t h e  U nited  S tates C ourt of A ppeals  for th e  F if t h
C ircuit

In the Matter o f :

E liza b e th  P orter W y c k o ff  For a writ of Habeas Corpus

Before T u t tle , Chief Judge, J ones and W isdom , Circuit 
Judges.

By the C ourt :

The petitioner herein seeks an order authorizing her 
to appeal from an order entered July 6, 1961, entered by 
the United States District Court for the Southern Dis­
trict of Missisippi, and moves for permission to proceed 
on her appeal upon the original papers filed in said Dis­
trict Court. Petitioner further moves for an immediate 
hearing of said appeal.

Petitioner asserts that she was arrested “ for entering 
the white waiting room at the Continental Bus Terminal, 
Jackson, Mississippi, in the company of other interstate 
passengers of the Negro race, was sentenced on June 5, 
1961, to two months imprisonment in the Hinds County 
jail, suspended, and a fine of $200 for violating Section 
2087.5, Mississippi Code of 1942, As amended.”

Petitioner asserts that because of the short term of her 
detention, and “ the clear violation by respondent of the 
constitution and laws of the United States, the [665] re­
quirements that she must first exhaust her state remedies 
would, in effect, deny her the right of habeas corpus, in 
a situation where it was the sole effective remedy with 
(R-753) which to safeguard her statutory and constitutional 
rights and liberties.”

It no where appears in the petition that the petitioner 
has attempted to exhaust remedies available to her in the 
courts of the state of Mississippi, or that there is either an 
absence of available state remedies or that other circum-



26

stances exist which render such state remedies ineffective 
to protect the rights of the prisoner.

The jurisdiction of a federal court is fixed by the Acts 
of Congress. 28 U.S.C.A. p. 2254 provides as follows:

p. 2254. State custody; remedies in State courts. An 
application for a writ of habeas corpus in behalf of a 
person in custody pursuant to the judgment of a 
State Court shall not be granted unless it appears that 
the applicant has exhausted the remedies available 
in the courts of the State, or that there is either an 
absence of available State corrective process or the 
existence of circumstances rendering such process in­
effective to protect the rights of the prisoner.
An applicant shall not be deemed to have ex- [666] 
hausted the remedies available in the courts of the 
State, within the meaning of this section, if he has 
the right under the law of the State to raise, by any 
available procedure, the question presented.”

It not appearing from anything asserted in the petition 
in this case that petitioner sought to appeal her con- 
(R-754) viction, which she alleges to have been void and 
unconstitutional, or that she is financially unable to make 
bond pending such appeal, and it not appearing that peti­
tioner has no right to test her detention by habeas corpus 
in the state courts of Mississippi, there appears to be no 
sound reason for this Court to grant petitioner’s motion for 
expediting the hearing in this Court. There thus appears 
to be no sound reason for granting petitioner’s motion 
for permission to appeal upon the original papers, since 
no allegations are contained in the petition asserting peti­
tioner’s financial inability to cause the record to be pre­
pared in accordance with the rules of this Court.

The motions are, therefore, D en ied .

* # # * * # #



APPENDIX “ C”

(Filed—Nov. 17, 1961)

O.A. No. 3133

S am uel , B a ile y , e t  a l .

v.
J oe T. P atterson , Attorney General of the State of 

Mississippi, Jackson, Miss., et al.

R ives, Circuit Judge, dissenting:
The complaint seeks to enjoin state-imposed racial segre­

gation in public travel facilities in the State of Mississippi 
and the City of Jackson, Mississippi. It seeks relief 
against two types of statutes and ordinances: (1) laws 
which on their face require the segregation of the races, 
and (2) laws which purport to deal with the mainte­
nance of law and order but which, according to the com­
plaint, are used to maintain segregation.

The plaintiffs are three adult Negro citizens residing 
in Jackson, Mississippi, who sue on behalf of themselves 
and of other Negroes similarly situated and affected by 
the statutes and ordinances complained of.1 The defend­
ants are the Attorney General of Mississippi; the City of 
Jackson, its Mayor, Commissioners and Chief of Police; 
Jackson Municipal Airport Authority; Continental South­
ern Lines, Inc.; Southern Greyhound Lines; Illinois Cen­
tral Railroad, [668] Inc.; Jackson City Lines, Inc.; and 
Cicero Carr d /b /a Cicero’s Airport Restaurant.

The original complaint and motion for preliminary in­

[667] (R-811) Dissenting Opinion of Judge Rives

1 According to the complaint, “ the class is composed of Negro citizens 
and residents o f the State of Mississippi and other states who utilize the 
facilities and services of the defendant carriers located in the City of 
Jackson, and located in other cities of the State of Mississippi, and who 
travel in both intrastate and interstate commerce.”



28

junction were filed on June 9,1961. A bearing on the plain­
tiffs ’ motion for preliminary injunction was set for July 
10, 1961. That hearing was continued because of the ill­
ness of an Assistant Attorney General of Mississippi. The 
hearing was reset for August 7, 1961.
(R-812) Meanwhile, an Amended Complaint was filed on 
July 17, 1961. The hearing set for August 7, 1961 was 
confined to the argument of motions to dismiss, motions to 
dissolve the three-judge court, motions to abstain, motions 
for more definite statements, motions to require the plain­
tiffs to furnish security for costs, and to the plaintiffs’ 
insistence upon a hearing of their motion for preliminary 
injunction. By order entered on that date, August 7, 1961, 
the court allowed the Amended Complaint which had been 
filed July 17, 1961; allowed the plaintiffs to join as an addi­
tional party defendant the Jackson Municipal Airport Au­
thority; provided for service upon that party and for the 
filing of any motions and answers on its behalf; denied 
the motions to dismiss for lack of indispensable parties; 
denied, on conditions immediately met, the motions for 
more definite statements and the motions to require the 
plaintiffs to furnish security for costs; and carried with 
the case for later disposition the other motions to dismiss, 
the motions [669] to dissolve the three-judge court, and 
the motions to abstain.

Over the plaintiffs’ objection, their request to be heard 
on their motion for preliminary injunction was denied “ in 
view of the broadening of the issues2 by the Amended 
Complaint filed on July 17, 1961, and of the bringing in on 
this date of a new party defendant,”  and the hearing of 
the motion for preliminary injunction was passed until Sep­
tember 25, 1961. It was further ordered that on that date 
the court would hear the case, both on said motion and 
on the prayer for permanent relief.

2 Paragraph 15 of the complaint was amended so as to make specific 
reference to the disorderly conduct and breach of the peace statutes, Secs. 
2087.5, 2087.7 and 2089.5 of the Mississippi Code Annotated (1942), as 
among those under color of which the defendants pursued a policy, practice, 
custom and usage of segregating Negro and white passengers.



29

(R-813) The court stated its intention finally to dispose 
of the case following the hearing set for September 25,1961.

On September 25, 1961, over certain objections noted 
in the transcript of testimony, the court did proceed with 
the hearing of the case both on the motion for preliminary 
injunction and on the prayer for permanent relief. The 
taking of testimony consumed three days—Monday, Tues­
day and Wednesday, September 25, 26 and 27. On Thurs­
day, September 28, oral arguments of counsel were heard, 
and a further exhibit of the plaintiffs (No. 36) was re­
ceived. The defendant Greyhound Corporation was per­
mitted to take the deposition [670] of A. W. Wilson, which 
was filed on October 10, 1961. The testimony has 
now been transcribed and was filed on October 20, 1961, 
and additional briefs have been filed by the parties and 
by the amicus curiae, the United States of America.

The evidentiary disputes are not very material. The 
formal allegations of the complaint, the identity and resi­
dence of the plaintiffs, their use of the transportation facil­
ities, in question, the identification of the carrier defend­
ants, their use of the busses, cars, terminals, depots, rest 
rooms, drinking fountains, etc., were all either admitted 
or established by undisputed evidence. Continental South­
ern and Greyhound admitted that in their Jackson termi­
nals or depots there are signs on the outside doors of one 
waiting room which read: “ C olored W aitin g  R oom— I n tea- 
state P assengers, ”  and signs on the outside doors of an­
other waiting room which read: “ W h ite  W aitin g  R oom—  
I ntrastate  P assengers, ”  and on the sidewalks outside the 
respective waiting rooms are signs which read: “ W a it ­
in g  R oom fob C olored O n l y— B y  O rder P olice D e p t . ”  and 
“ W aitin g  R oom fob W h ite  O n l y— B y  O rder P olice D e p t . ’ ’ 
Each bus company claimed that it did not place the signs 
on the sidewalks, and that the signs on or over the doors 
were placed “ pursuant to the provisions of Chapter 258, 
Laws of 1956, Regular Session of Mississippi Legislature.”  
(R-814) The bus companies further admitted that similar 
[671] signs on or over the doors appear on waiting rooms 
in all terminals or depots in the State of Mississippi.

Illinois Central admitted that in its railroad terminal



30

or depot in Jackson it maintains two separate waiting 
rooms, on the sidewalk outside of one of which are signs 
reading respectively: “ W aitin g  R oom fob C olored O n l y , 
B y  Order P olice D ept . ”  and “ W aitin g  R oom for W h ite  
O n l y , B y  Order P olice D ept . , ”  and that similar signs are 
located in the railroad terminal at the bottom of the stairs 
leading from the trains.

The Chief of Police of Jackson in his testimony ad­
mitted that the signs on the sidewalk were placed by the 
Police Department pursuant to the City segregation ordi­
nance.

Both the two Bus Companies and the Railroad denied 
enforcing segregation on busses or cars.

The Jackson City Lines admitted that, pursuant to State 
law, it maintains signs on its busses directing that Negroes 
and whites sit in separate parts, and that, when "those 
directions are not observed and a “ breach of the peace is 
imminent,”  it has a policy of stopping the bus and proceed­
ing no further.

The Jackson Municipal Airport Authority admitted seg­
regation of the rest rooms and drinking fountains in its 
waiting rooms. Cicero Carr,, the lessee of the restaurant 
at the Airport, admitted that he would not serve Negroes 
in the main dining room, but would serve them on a back 
counter in a room partially used for storage.
[672] The Mayor of the City of Jackson, the chief law 
enforcement official of the City, and the State Attorney 
General were questioned on their racial policy with respect 
to public transportation facilities. The majority ruled that 
such testimony was inadmissible, and I dissented.
(R-815) The testimony was admitted under Rule 43(c) 
of the Federal Rules of Civil Procedure as a specific offer 
of evidence. The statement of the Mayor is so pertinent 
it should be quoted at length. (The ordinance under dis­
cussion in his testimony is the City ordinance requiring 
the segregation of transportation facilities.)

Q. . . .  State your understanding’ of the racial policy 
of the City of Jackson with respect to trans­
portation facilities in the City of Jackson.



31

“ A. . . . It has been the policy of mine as chief law 
enforcement officer, and the members of the city 
council and the police department and of the 
people of Jackson, to maintain what has worked 
over the last hundred years to bring happiness 
and peace and prosperity to everyone within our 
city. That has been done by a separation of the 
races, not segregation. We never refer to it as 
segregation. Now, of course, you know and I 
know the State law upon which the City ordi­
nance was patterned in 1956, with the preamble 
put in as ours, showing why—to maintain 
peace and order [673] and to keep down dis­
turbances. Since I have been Mayor I do 
not recall one incident where there has been an 
arrest under this ordinance or any segregation 
ordinance. We have at all times tried to main­
tain peace and keep down disturbances. That 
is the policy. Our policy calls for a great deal 
of give and take. It is agreeable to both the 
white and the colored. . . .  So you see that laws 
can come and laws can go and laws can be changed, 
but the policy adopted here is to maintain hap­
piness and contentment between the races, within 
the law, and at the same time giving the benefit 
of the great advantage over the years of living- 
together in peace and quiet.

“ Q. Does this ordinance accurately reflect this policy, 
in effect, which you have just stated!

“ A. I think so. . . . However, as Your Honors have 
read it, you read the last paragraph there, it 
says, ‘ 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 wel­
fare of all its citizens,’ and then of course we 
adopted the State ordinance in this.

“ Q.............Does the body of the ordinance, apart
[674] from the preamble, reflect the policy of 
the City of Jackson as you have stated it?



32

“ 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 sepa­
ration of the races.”

(R-816) The State Attorney General testified on direct 
examination that it was his duty to enforce all of the laws 
in the State. He was extremely evasive on answering 
whether the State segregation laws affected his duty as 
Attorney General; however, he did say that they were laws 
of the State, that they had not been declared unconsti­
tutional, and that he would enforce them “ if conditions 
arise to such a point that I thought it was necessary to 
bring them into effect.”  He said in a concluding state­
ment :

“ My sole purpose since the beginning of these insti­
gated troubles that were instigated outside our State 
and brought to our State, has been the preservation 
of peace and order within the borders of the State 
of Mississippi. I have undertaken that, along with 
all other public officials and law enforcement officers 
of this State.”

Part of such undertakings were meetings prior to and just 
after the arrival of the first group of Freedom Riders 
on May 24, 1961, attended by himself, the Mayor and Chief 
of [675] Police of Jackson. Plans were discussed at these 
meetings for dealing with the Freedom Riders. On this 
point he testified:

“ Q. Did you discuss with the Chief of Police what 
steps he was g’oing to take to preserve law and 
order ?

“ A. Yes, we discussed plans.
“ Q. What were those plans?
“ A. The plan was to do exactly what they did, first 

of all to keep down riot and disorder, and these 
arrests necessarily followed. They could have 
been easilv avoided had your clients only wanted 
them avoided. . . . ”



33

The Attorney General is not responsible for the enforce­
ment of state law in the local courts; he is, nevertheless, 
the chief policymaker of state law enforcement.

The plaintiffs offered evidence of the arrests for breach 
of the peace of passengers on the defendant carriers. 
There is evidence of two incidents on the busses of the 
Jackson City Lines. (In fact, the records of the City 
Lines contain reports on only two incidents.) Plaintiff 
Bailey testified to the arrest of one Charles Patterson, 
a Negro, for re- (817) fusing to move when a white man 
got on the bus and sat down next to him. Witness Doris 
Grayson testified to the arrest of herself and three com­
panions who got on a City Lines bus in the center of the 
City and sat in a front seat. The bus [676] was stopped 
for 10 minutes before a policeman came along. In neither 
instance is there any evidence in the record of an actual 
or threatened breach of the peace. The driver in the 
Grayson incident testified:

“ Q. Were there any white persons on the bus?
“ A. Yes.
“ Q. At the time these four Negroes were on the bus?
“ A. Yes.
“ Q. Was there any disturbance on the bus?
“ A. Not a bit.
“ Q. Was there any disturbance outside the bus?
“ A. No, not any.”

The record also includes evidence on the arrests of 
approximately 300 Freedom Riders in the terminals of 
the defendant interstate carriers. Captain Ray of the 
Jackson Police Department, who personally made the 
majority, if not all, of the arrests, testified as follows with 
respect to the activities of the Negroes arrested in the 
white waiting room of the Illinois Central Railroad:

” Q. What were the Negroes doing that you arrested 
in there?

“ A. They came in the terminal.
“ Q. What did they do?
“ A. They came in and some of them had seats and 

some of them stood.



34

“ Q. What else did they do!
“ A. That is about all.
“ Q. Were they armed?
[677] “ A. I never found any of them armed.
“ Q. Were they loud?
“ A. No.
“ Q. Did they use any curse words?
“ A. No.
“ Q. Did they strike anybody?
“ A. No.
“ Q. Did they threaten anybody?
“ A. No.
“ Q. Did you arrest them?
“ A. I sure did.
“ Q. For what?
“ A. Because their presence provoked people and 

caused them to become disturbed, and I felt it 
best to maintain law and order and to order 
them to leave there. When they refused to obey 
my order, they were arrested.

“ Q. Would you explain what you mean by ‘ their 
presence there provoked people’ ?

(B-818) “ A. Well, as I stated earlier, we had ad­
vance notice that they were coming to Jackson 
to create an incident similar to what has hap­
pened in other cities, and my duty there was to 
maintain law and order, and I felt it best to get 
the root of the trouble out of there, and that is 
when I ordered them to leave.

[678] “ Q. What did they do in violation of law and 
order?

“ A. When I ordered them to leave, they just stood 
there, as though they hadn’t heard me say a 
word. I repeated that order several times, and 
they refused to obey, and that is when I arrested 
them.”

He testified that all the other arrests in the waiting rooms 
of the remaining depots were virtually identical.

The testimony with respect to the circumstances sur-



35

rounding the arrests is equally explicit. Chief of Police 
Rayfield was questioned on the existence of crowds of 
people around any of the terminals when a group of Riders 
arrived and were arrested. He testified that there were 
two such occasions, one on the first arrival at the Trail- 
ways terminal on May 24 when he was present, and another 
when the first group came to the Illinois Central terminal, 
of which he had a report. At the Trailways terminal, he 
testified that a number of people were waiting in cars 
and others congregated outside the terminal. To his knowl­
edge none of them were fighting, loud or armed; their at­
titude, however, he termed hostile. The ones not in cars 
were asked to disperse, and they did. At the Illinois 
Central terminal, Rayfield had reports that 10 or 15 people 
were milling about in the street exhibiting a hostile and 
disturbed attitude. They were asked to move, they com­
plied and were gone by the time the Riders arrived. He 
then testified:

‘ ‘ Q. Did you receive any other reports from your police 
officers of this nature!

[679] “ A. That’s the only two.
“ Q. The only two reports you know’ about.”
“ A. The only two I received where there could have 

been any situation like you were just discussing. 
Now, the others I don’t recall that there has been 
any other trouble around any of the terminals.”

Captain Ray testified that the events within the terminal 
were roughly similar for all the arrests: Before the arrival 
of a (R-819) group, people inside the terminal would make 
remarks, none of which particularly threatened violence. 
If nceesary, he would order all those who did not have 
tickets or some business in the terminal to leave; they al­
ways complied. When the group arrived, some remarks 
were made, people in the terminal would follow them 
around, but no acts of violence ever took place. Captain 
Ray ventured the opinion that there might have been in­
cidents of violence had he not arrested the Riders, but 
there is no indication that the situation could not have



36

been handled by restraining or arresting the offending 
party.

This is the extent of the evidence in the record on 
potential breaches of the peace.

This action was brought by three Negro plaintiffs from 
the City of Jackson as a class action, on behalf of them­
selves and other Negroes similarly situated, under the 
Civil Eights Act, 42 U.S.C. p.1983, which creates an equi­
table cause of action against

[680] “ Every person who, under color of any statute, 
ordinance, regulation, custom, or usage, or any State or 
Territory, subjects, or causes to be subjected, any 
citizen of the United States, or other person within 
the jurisdiction thereof to the deprivation of any 
rights, privileges, or immunities secured by the Consti­
tution and laws. . . . ”

The jurisdiction of the three-judge court is invoked pur­
suant to 28 U.S.C. p.2281, p.2284 because the constitution­
ality of state statutes has been attacked. The statutes at­
tacked are the so-called segregation statutes of the State of 
Mississippi which require racial segregation in all common 
carriers and in waiting room and rest room facilities used 
by the carriers, and provide criminal penalties for carriers 
and persons refusing to abide by these laws.3 
(R-820) The defendants attacked the jurisdiction of the 
three-judge court on the ground that these statutes have 
never been enforced and no arrests have been made under 
their provisions. Under the recent case of Poe v. Ullman, 
1961, 367 U. S. 497, the complete failure to enforce a state 
law, coupled with its open and notorious violation, prevents 
the federal courts from reaching the constitutionality of 
the statute since no case or controversy is presented. [681] 
If such were the case here, the three-judge court would 
not have jurisdiction. The evidence shows, however, that 
the defendant carriers and the Jackson police maintain 
signs pursuant to the command of these statutes. This is

8 These statutes are: Title 11, Sections 2351, 2351.5, 2351.7, and Title 28, 
Sections 7784, 7785, 7786, 7786-01, 7787, 7787.5, Miss. Code Ann. (1942).



37

sufficient evidence of enforcement to create a case or contro­
versy and maintain the jurisdiction of the three-judge court.

In the alternative, the defendants argue that jurisdiction 
over the segregation statutes may not extend to the col­
lateral problem of enforcement of segregation by means 
of the breach of the peace statutes on the grounds: (1) 
there is no authority under p.2284, and (2) the court may 
not consider issues of fact. The concept of federal juris­
diction is by no means this narrow. In Sterling v. Con­
stantin., 1932, 287 U.S. 378, the jurisdiction of the three- 
judge court, originally invoked to test a state statute 
limiting oil production, extended to the Govenor of Okla­
homa’s attempt to institute the same production limita­
tions by fiat under martial law. The three-judge court 
made extensive findings and concluded: ‘ ‘ The evidence 
shows no insurrection nor riot, in fact, existing at any 
time in the territory, no closure of the courts, no failure 
of civil authorities.”  On this basis, the court held that 
the invocation of martial law was invalid and that the 
military orders enforcing the production limitations were 
a denial of due process. The Supreme Court upheld the 
district court and (B-821) specifically approved the ex­
tensive findings of fact:

[682] “ Accordingly, it has been decided in a great 
variety of circumstances that when questions of law 
and fact are so intermingled as to make it necessary, 
in order to pass upon the federal question, the court 
may and should, analyze the facts.”  (287 U.S. at p. 
398.)

The Court went on say that the jurisdiction of the three- 
judge court

“ . . . extends to every question involved, whether of 
state or federal law, and enables the court to rest 
its judgment on the decisions of such of the questions 
as in its opinion effectively dispose of the case.”  (287 
U-S. at pp. 393-94.)



38

See also, Hum v. Oursler, 1933, 289 U.S. 238; Florida Lime 
Growers v. Jacobsen, 1960, 362 U.S. 73; Evers v. Dwyer, 
1958, 358 U.S. 202.

The City of Jackson, its Mayor, Commissioners and 
Chief of Police urge that the City cannot be sued in this 
action. They rely upon Monroe v. Pape, 1961, 365 U.S. 
167, 191 n. 50, and Egan v. City of Aurora, 1961, 365 U.S. 
514 . The question is also relevant to relief against the 
Jackson Airport Authority.

The direct holding in Monroe v. Pape is that a municipal 
corporation is not a “ person”  within the meaning of Sec­
tion 1983 for the purpose of holding it liable for damages, 
and is based upon the finding that Congress rejected an 
amendment which would have made such corporations 
liable for money damages in specific cases. 365 U.S. at 
188. [683] The defendants argue that if the City is not
a “ person”  for purposes of damages, it cannot be a 
“ person”  for purposes of an injunction, and further argue 
that the Supreme Court specifically so held in footnote 
50 of Monroe v. Pape, supra at p. 191, when it said:

“ In a few cases in which equitable relief has been 
sought, a municipality has been named, along with 
city officials, as defendant where violations of 42 U.S.C. 
p. 1983 were alleged. See, e.g., Dotoglas v. City of 
Jeannette, 319 U.S. 157; Holmes v. City of Atlanta, 
350 U.S. 879. The question dealt with in our opinion 
was not raised in those cases, either by the parties 
or by the Court. Since we hold a (R-822) municipal 
corporation is not a ‘ person’ within the meaning of 
p. 1983, no inference to the contrary can any longer 
be drawn from those cases.”

The question of whether a municipality could be sued 
under p. 1983 for equitable relief, however, was not before 
the Court, and I do not believe that the Court intended 
in a footnote to overrule prior cases indicating that a 
municipal corporation could be so sued. See Douglass v. 
Jeanette, supra; Holmes v. City of Atlanta, supra; Mayor 
and City Council of Baltimore City v. Dcrnson, 350 U.S. 
877, affirming 220 F. 2d 386 (4 Cir., 1955). This is especially



39

true when the legislative history upon which the Court 
relies is directed solely to the question of damages. We 
are not here [684] concerned with the question of tortious 
action and the liability of the City taxpayers for such 
actions over which they had little possible control. The 
question here is one of prospective equitable relief for the 
protection of the plaintiffs’ constitutional rights against not 
just the tortious activity of individuals, but the enforce­
ment of City ordinances, officially declaring City policy, 
and officially recorded on the City Journal. This same 
issue has been before the Seventh Circuit Court of Ap­
peals since Monroe v. Pape, and that Court held:

“ None of the reasons which support a city’s immunity 
from an action for damages for tortious injuries al­
ready inflicted by its officers, agents or servants applies 
to this case. No reason is apparent why a city and 
its official should not be restrained from prospectively 
violating plaintiffs’ constitutional rights pursuant to 
its own legislative enactment, and an injunction not 
be granted as provided in p. 1983.”

Adams v. City of Park Ridge, 7 Cir., 1961, 293 F.2d 585, 
587. For these reasons, I believe that footnote 50 in 
Monroe v. Pape may be construed to say that, whether or 
not a municipal corporation is subject to equitable relief 
under p. 1983, no inference from cases indicating that it 
may is relevant to the issue of its liability for damages. 
(K-823) More fundamentally, however, the plaintiffs’ right 
[685] of action against the City does not depend alone 
upon p.1983. The rights asserted here are based on the 
Constitution which itself creates the cause of action for 
equitable relief and, within the meaning of 28 U.S.C. 
p.1343 (3) (the jurisdictional provision upon which this suit 
is based), authorizes this suit. Cf. Bell v. Hood, 1946, 327 
U.S. 678; Brewer v. Hoxie School District No. 46, 8 Cir., 
1956, 238 F.2d 91, 103; Hart & Wechsler, The Federal 
Courts And The Federal System 794-97 (1953). Doctrines 
of immunity can have no application to suits in equity 
brought to restrain invasions of federal constitutional 
rights. Sterling v. Constantin, 1932, 287 U.S. 378, 393;



40

Ex parte Young, 1908, 209 U.S. 155, 156; Graves v. Texas 
Company, 1936, 298 U.S. 393, 403-04; Georgia RR v. Red- 
wine, 1952, 342 U.S. 299, 305 n. 17.

I would hold that the City of Jackson and the Jackson 
Airport Authority are proper parties.

All motions attacking this court’s jurisdiction should be 
overruled.

Nor should this court abstain from considering the merits. 
The court may not rely on Harrison v. N.A.A.C.P., 1959’, 
360 U.S. 167, which approves abstention where the state 
law attacked might be construed by the state courts to 
avoid the constitutional question, since the seg*regation 
statutes are incapable of a valid construction. No au­
thority whatsoever may be found for the proposition that, 
where a state statute is clearly and unavoidably unconsti­
tutional on its face, comity requires that state courts be 
allowed the [686] privilege of so declaring. Such a rule 
would be, not abstention, but abdication of our judicial 
function. Nor may this court rely on Douglas v. Jeannette, 
1943, 319 U.S. 157, which held that federal courts, as a 
matter of comity and equitable discretion, should not in­
terfere with state criminal proceedings and law enforce­
ment officials when an adequate remedy is provided in the 
state proceedings for the (R-824) protection and assertion 
of all constitutional rights. The primary requirement of 
Douglas v. Jeannette is that there be an adequate state 
remedy; that is not the case here. An exception to Jean­
nette has developed in favor of class actions on behalf of 
Negroes combating state supported segregation. As stated 
by the Court of Appeals in Morrison v. Davis, 5 Cir., 1958, 
252 F.2d 102, 103:

“ This is not such a case as requires the withholding 
of federal court action for reason of comity, since 
for the protection of civil rights of the kind asserted 
Congress has created a separate and distinct federal 
cause of action. 42 U.S.C.A. p.1983. Whatever may 
be the rule as to other threatened prosecutions, the 
Supreme Court in a case presenting an identical factual 
issue affirmed the judgment of the trail court in the 
Browder case (Browder v. Gayle, D.C. Ala., 142



41

F.Supp. 707, aff’d 352 U.S. 903) in which the same 
contention was advanced. To the extent that this is 
inconsistent with Douglas v. City of Jeannette, Pa., 
319 U.S. 157, [687] 63 S.Ct. 877, 87 L.Ed. 1324, we 
must consider the earlier case modified.”

Actually, this is not so much an exception as a practical 
application of the Jeannette requirement of “ adequacy.”  
For the alternative to this suit is that a great number of 
individual Negroes would have to raise and protect their 
constitutional rights through the myriad procedure of local 
police courts, county courts and state appellate courts, 
with little prospect of relief before they reach the United 
States Supreme Court. That Court already has a 
heavy docket without numerous such cases. Moreover, 
the proof of segregation may not he a straightforward 
proposition. As in the case here, the true nature of 
state policy and practice may become apparent only after 
proof of a pattern and practice over an extended period 
of time. Such a record can only he prepared in a single 
suit which finally settles the issue once and for all. The 
some 300 citizens arrested in Jackson since May cannot 
he expected to provide at their trials a record similar 
to the one in this case; and yet, without it, there may 
be no way for them to assert and protect their constitu­
tional rights. All these

* *  * *  #

(The following letter is an explanation of a correction 
on Record Page No. 826.)



42

[688 ] (R -8 2 5 ) U nited  S tates C ourt of A ppeals F if t h
J udicial  C ircu it

Richard C. Rives,
Judge.
Montgomery 2, Alabama.

November 30, 1961.

(Filed—Dec. 1, 1961)
Miss Loryce E. Wharton, Clerk,
United States District Court,
Southern District of Mississippi,
Jackson, Mississippi.

R e : Samuel Bailey, et al. v. Patterson, et al.

Civil Action No. 3133

Dear Miss Wharton:
We have been advised that there is a technical error in 
Judge Rives’ dissenting opinion in the above case. At 
page 15, line 12, of the typed opinion which we submitted, 
“ de novo circuit court trail”  should read “ de novo county 
court trail.”  Will you please make this change where- 
ever necessary.

Sincerely yours,
/ s /  P eter  R . T a f t ,

Law Clerk to Judge Rives.
PRT/ef
c c : Honorable Sidney C. Mize, Honorable Claude F. Clayton.

* * = # # # * *

[689] (R-826) factors go to the “ adequacy”  of the breach
of the peace criminal proceedings and weigh against it. 
Equally important under the circumstances of this case 
is that, for some of the reasons above, Negro citizens in 
Mississippi will not even attempt to exercise their consti­
tutional rights because their state remedies possibly “ ade­
quate in theory”  are wholly in adequate in practice.



43

Another factor bearing on the adequacy of the state 
criminal proceedings is that the Freedom Riders arrested 
in this case were travelers in interstate commerce. For 
such travelers to be delayed by arrest and trail, to be 
required to return for a de novo county court trial, and 
perhaps again for an appeal, is an unreasonable burden 
on interstate commerce when their only crime is the as­
sertion of undisputed statutory and constitutional rights. 
This burden makes the state criminal proceedings wholly 
inadequate as an alternative to the present suit.

Any further doubts as to the validity of the distinction 
drawn in Morrison v. Davis, or the refutation of Douglas 
v. Jeannette, are put to rest by considering the hearing 
of the Fourteenth Amendment and 42 U.S.C.A. p. 1983 on 
the duty of this court. The Supreme Court had an oppor­
tunity to pass on the basic thrust and purpose of the 
Fourteenth Amendment soon after it was adopted. In 
the Slaughter-House Cases, 1872, 83 U.S. 36, 71-72, the 
Court said:

“ We repeat, then, in the light of this recapitula­
tion of events, almost too recent to be called history, 
[690] but which are familiar to us all; and on the 
most casual examination of the language of these 
amendments, no one fail to be impressed with the one 
pervading purpose found in them all, lying at the 
foundation of each, and without which none of them 
would have been even suggested; we mean the freedom 
of the slave race, the security and firm establishment 
of that freedom, and the protection of the newly-made 
freeman and citizen from the oppressions of those who 
had formely exercised unlimited dominion over him. 
It is true that only the fifteenth amendment, in terms, 
mentions the negro by speaking of his color and his 
slavery. But it is just as true that each of the other 
articles was addressed to the grievances of that race, 
and designed to remedy them as the fifteenth.
(R-827) " “ We do not say that no one else but the 
negro can share in this protection. . . . But what we 
do say, and what we wish to be understood is, that 
in any fair and just construction of any section or



44

phrase of these amendments, it is necessary to look 
to the purpose which we have said was the pervading 
spirit of them all, the evil which they were designed 
to remedy. . . . ”

The last section of the Fourteeenth Amendment provides 
that “ The Congress shall have power to enforce, by ap­
propriate legislation, the provisions of this article.”  Such 
legislation [691] was already on the books when the 
Slaughter-House Cases were decided, and the very section 
under which the plaintiffs have brought this suit, 42 
U.S.C.A. p. 1983, may be traced to section 1979 of the Re­
vised Statutes and section 1 of the Ku Klux Act of April 
20, 1871, 17 Stat. 13. This section was recently before the 
Supreme Court in Monroe v. Pape, supra, where the Court 
discussed in detail its legislative history and purposes. 
As with the Fourteenth Amendment, this section was passed 
by Congress to secure the newly-won freedom of the Negro 
population in the South; it was intended to deal more 
specifically, however, with the securing of these rights 
in an atmosphere of violence caused by the unleashing of 
passions and prejudices which the mere assertion of these 
rights engendered in a portion of the white population. 
The Congressional solution was to create a remedy through 
the federal courts. The Court states:

“ The debates are long and extensive. It is abun­
dantly clear that one reason the legislation was passed 
was to afford a federal right in federal courts be­
cause, by reason of prejudice, passion, neglect, intol­
erance or otherwise, state laws might not be enforced 
and the claims of citizens to the enjoyment of rights, 
privileges, and immunities guaranteed by the Four­
teenth Amendment might be denied by the state agen­
cies.”  (365 U.S. at 180.)

Mr. Justice Frankfurter adds to this in his separate 
opinion [692] what might be called the substantive right 
to the exercise of federal jurisdiction:

“ . . . the theory that the Reconstruction Congress 
could not have meant p. 1979 principally as a ‘ juris­



45

dictional’ provision granting access to an original 
(B-828) federal forum in lieu of the slower, more 
costly, more hazardous route of federal appeal from 
fact-finding state courts, forgets how important pro­
viding a federal trial court was among the several 
purposes of the Ku Klux Act . . . .  Section 1979 does 
create a ‘ substantive’ right to relief. But this does 
not negative the fact that a powerful impulse behind 
the creation of this ‘ substantive’ right was the purpose 
that it be available in, and be shaped through, original 
federal tribunals.”  (365 U.S. at 251-52.)

Not only is it apparent that the purpose of these provisions 
is to protect the very kind of rights the plaintiffs assert, 
but the legislative history of section 1983 makes clear that 
the greater the danger of violence, the more important it is 
that the federal courts should accept and exercise jurisdic­
tion. Thus, the major portion of the defense of the City 
of Jackson and of the Attorney General of Mississippi, 
attempting to justify their actions because of the danger 
of violence, actually provides the most powerful argument 
for this court to exercise its jurisdiction and grant a federal 
remedy to [693] protect the plaintiffs’ rights.

The majority takes the position that the major issue in 
this case is the questionable use of the breach of the peace 
statutes, and that under the Harrison case we should ab­
stain to allow the state courts to construe them. The plain­
tiffs ’ attack, however, is upon the segregation statutes, not 
the breach of the peace statutes, and they allege that the 
State is practicing the simplest of all evasions—it makes 
arrests under the breach of the peace statutes for viola­
tions of the segregation statutes. If there is substance to 
this allegation, it would be a fraud upon the jurisdiction 
of this court to abstain and give recognition to such an 
evasion. Wihen the constitutionality of a state statute is 
attacked, we are under a duty to inquire into the law as 
it is actually applied. In Poe v. Ullman, supra, such an 
inquiry demonstrated that there was no case or controversy. 
In an earlier case, Nashville, C. & St. L. Ry. Co. v. Brown­
ing, 1940, 310 IJ. S. 362, such an inquiry uncovered a valid



46

administrative amendment to a tax-assessing statute and 
tlie alleged discrimination was found to be a valid distinc­
tion.4 5
(R-829) [694] In Sterling v. Constantin, supra/, the in­
quiry uncovered the evasion of the Governor of Oklahoma. 
As a later Supreme Court case interpreted Sterling v. 
Constantin,

“ There martial law was employed in support of an 
order of the Texas Railroad Commission limiting pro­
duction of oil in the East Texas field. The Governor 
was sought to be restrained as part of the main objec­
tive to enjoin ‘ the execution of an order made by an 
administrative . . . commission,’ and as such was in­
dubitably within p. 266 (now p. 2284).” 6

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 arrests are a simple evasion to en­
force segregation. This evasion provides no ground for 
abstention.6

4 “ Here, according to petitioner’s own claim, all the organs of the state 
are conforming to a practice, systematic, unbroken for more than forty 
years, and now questioned for  the first time. It would be a narrow con­
ception of jurisprudence to confine the notion of ‘laws’ to what is found 
written on the statute books, and to disregard the gloss which life has 
written upon it. Settled state practice cannot supplant constitutional 
guarantees, but it can establish what is state law. The Equal Protection 
Clause did not write an empty formalism into the Constitution. Deeply 
embedded traditional ways of carrying out state policy, such as those of 
which petitioner complains, are often tougher and truer law than the dead 
words of the written text.”  Nashville, C. & St. L. Rv. Co. v. Browning, 
1940, 310 U. S. 362, 369.

5 Phillips v. United States, 1941, 312 U.S. 246, 253.
6 See also Evers v. Dwyer, 1958, 358 U.S. 202, where the Court ordered 

a three-judge court, whose jurisdiction was invoked to enjoin Tennessee 
transportation statutes requiring segregation, to hear that and “ any other 
method o f state-enforced segregation on Memphis transportation facilities.”

The Court has continually struck down state-enforced schemes of segre­
gation, whether they were done directly or “ ingeniously or ingenuously.” 
Cooper v. Aaron, 1958, 358 U.S. 1, 17; Smith v. Texas, 1940, 311 U.S. 
128, 132; Lane v. Wilson, 1939, 307 U.S. 268, 275; see Bush v. Orleans



47

[695] The statutes and ordinances which on their face 
require the segregation of the races in any transportation 
facility should be declared unconstitutional, null, and void. 
Brown v. Board of Education, 1954, 347 U.S. 483; Browder 
v. Gayle, M.D. Ala., 142 F.Supp. 707, aff’d 352 U.S. 903 
(1954) ; Baldivin v. Morgan, 5 Cir., 1958, 251 F.2d 780 ; 
Boman v. Birmingham, Transit Co., 5 Cir., 1960, 280 F.2d 
531.

It should he declared impermissible to use laws which 
purport to deal with maintenance of law and order, or any 
other laws, to maintain segregation of the races in any 
transportation facility. To that end, it should be declared 
that no passenger or intended passenger is subject to arrest 
for disorderly conduct or breach of the peace unless the 
passenger is himself disorderly or does something more 
than to occupy some facility or place intended for use by 
persons of another race and to refuse to remove himself 
from such place or facility. To arrest a passenger under
[696] such circumstances is state-enforced segregation and 
therefore unconstitutional.

The defendants argue strongly on this last point that 
the State has merely been asserting its rights under the 
police power to maintain law and order. The evidence 
clearly shows, however, that none of the passengers arrested 
was ever himself disorderly. This poses the question of 
whether a passenger, whose only crime is the exercise of 
an undisputed constitutional right, may be arrested because 
this exercise provokes others to threaten or actually commit 
disorderly acts. That this is the substance of the defend­
ants’ position is clearly inferred from the facts to which 
they themselves testified—the signs on the sidewalk outside 
the waiting rooms pursuant to the segregation ordinance, 
the arrest of all those who attempted to “ crack the (E-831) 
laws’ ’ of Mississippi (to use the words of the State Attor­
ney General), and the complete lack of disorderly conduct
Parish School Board, E.D.La., 194 F. Supp. 182, aff’d sub nom. Gremillion 
v. United States, 30 L.W. 3120 (Sttp.Ct. 1961). It is not uncommon for 
the states to attempt to enforce segregation through general police power 
statutes. Boynton v. Virginia, (R-830) 1960, 364 U.S. 454 (trespass) ; 
Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 F.2d 531 (breach 
of the peace).



48

on the passenger’s part at the time of arrest. This infer­
ence is made explicit, however, by the testimony of the 
Mayor, who states that, by definition, anyone who attempts 
to test the “ separation of the races”  creates a breach of 
the peace and provokes disorder.

This issue must be met head on for the evidence shows 
that on at least two occasions there was a danger of riots 
and disorder. Although past disorder does not concern us 
as far as prospective injunction is concerned, there is [697] 
a strong possibility that a similar situation would arise 
after an injunction did go into effect.

The issue is decided by again returning to the basis of 
this suit, the Fourteenth Amendment and section 1983. The 
Amendment was adopted and this section passed soon after 
the completion of the Civil War. A glance at the legis­
lative history of section 1983, cited in Monroe v. Pape, 
supra, demonstrates that Congress had before it extensive 
evidence of the violence caused in the South by the newly- 
won Negro rights. Yet, no where, either in the Amendment 
or in section 1983, can there be found an intimation that 
either the danger or the existence of such violence is 
grounds for the revocation of constitutional rights granted 
primarily to Negroes. Rather, the answer of Congress was 
to provide federal jurisdiction and a federal remedy for 
their protection. From this it can only be concluded that 
the provocation of violence in others is no defense to the 
denial of these plaintiffs’ constitutional rights. If it were, 
the defendants and this court know that this case would 
spell the postponement of full enjoyment of constitutional 
rights by Negroes in the Deep South for many years to 
come. The Supreme Court faced and decided this issue 
in Cooper v. Aaron, 1958, 358 U.S. 1, 16, when it said :

(R-832) “ The constitutional rights of respondents 
are not to be sacrificed or yielded to the violence and 
disorder which have followed upon the actions of the 
Governor and Legislature. As this Court said some 
[698] 41 years ago in a unanimous opinion in a case 
involving another aspect of racial segregation: ‘ It is 
urged that this proposed segregation will promote the 
public peace by preventing race conflicts. Desirable



49

as this is, and important as is the preservation of 
the public peace, this aim cannot be accomplished 
by laws or ordinances which deny rights created or 
protected by the Federal Constitution.’ Buchanan v. 
Warley, 245 U.S. 60, 81. Thus law and order are not 
here to be preserved by depriving the Negro children 
of their constitutional rights.”

See also, Sterling v. Constantin, 1932, 287 U.S. 378; Sellers 
v. Johnson, 8 Cir., 1947, 163 F.2d 877; Rockwell v. Morris, 
1961, 211 N.Y.S.2d 25.

A police officer would be justified in requiring a person 
to move from a transportation facility because of a sudden, 
unexpected, and extreme danger of bloodshed which could 
not be otherwise avoided. There is no evidence in this 
record, however, of such a situation having arisen. In the 
case of the incidents on the Jackson City Lines buses, there 
is not even the intimation of potential disorder. Except 
for the two Freedom Eider arrivals where crowds gathered 
outside the transportation terminals, there is no evidence 
of an actual breach of the peace or a potential which a 
minimum of police officers could not have readily handled 
by arresting the individual actually creating the disorder. 
In the [699] case where the crowd surrounded the Illinois' 
Central, it was easily dispersed before the Eiders even 
arrived, putting it in the same situation as all the others. 
On May 24, the day of the first Eider group, although the 
crowd was sizable, and their attitude hostile, they never 
created an actual disturbance or reached proportions be­
yond the ability of the police to handle, even had the Eiders 
been allowed to remain in the terminal. It should, at this 
point, be noted that the Mayor of Jackson had been notified 
by the Attorney General of the United States before the 
Eiders’ arrival that, if, in the Mayor’s opinion, the situation 
could not be handled (E-833) by local authorities, he stood 
ready to send in Federal Marshals to aid the enforcement 
of order as had been done in Montgomery, Alabama. And 
I think it can be said with assurance that, if at any future 
time the law enforcement officials of Mississippi find that 
they cannot themselves handle the provocation of violence



50

caused by the Negroes’ exercise of their constitutional 
rights, the Attorney General of the United States would 
stand ready to send in Federal Marshals or any stronger 
force necessary to enforce order. There is no necessity to 
forego the exercise of rights guaranteed by the Constitution 
and laws of the United States in order to prevent violence 
on the part of persons opposed to the exercise of such 
rights. Any such surrender to mob rule would tremen­
dously encourage mob spirit. We must continue to he 
ruled not by the mob, but by the Constitution [700] and 
laws of our Country.

It is my opinion that a permanent injunction should issue 
against the City of Jackson, its Mayor, Commissioners and 
Chief of Police, and the Jackson Municipal Airport Au­
thority to restrain them from acting contrary to the fore­
going declarations and to protect to the best of their ability 
the right of any passenger or intended passenger to exer­
cise his constitutional rights on public transportation 
facilities.

This permanent injunction should extend to the State 
Attorney General. While he is not responsible for the 
enforcement of State laws through the local courts, and 
has prosecuted none of the arrests found in the record, 
he partook in meetings both before and after the arrival 
of the Freedom Riders on May 24, which determined the 
manner in which the situation would be, and thereafter was, 
handled. As the State official primarily charged with the 
duty to enforce State law, he must be held responsible for 
the plans made at those meetings and the way in which 
they have been carried out.
(R-834) A permanent injunction should issue against 
Cicero Carr requiring him to serve without discrimination 
at the Airport Restaurant all members of the public who 
use and frequent the Jackson Municipal Airport and re­
quest service.

The carriers, Continental Southern Lines, Inc., Southern 
Greyhound Lines, Illinois Central Railroad, Inc., [701] and 
Jackson City Lines, Inc., have stated that they are acting 
under apparent compulsion of City ordinance or State stat­
ute in any maintenance of segregation of the races in their



51

transportation facilities of which they may be guilty; and, 
that, promptly upon this court’s declaration that such stat­
utes and ordinances are unconstitutional, they will remove 
all signs indicating that any place or facility is intended 
for the use of persons of any particular race and will not 
further enforce or have any part in enforcing segregation 
of the races in any transportation facility. A simple de­
claratory judgment is therefore all that seems necessary 
as to said carrier defendants. This court should retain 
jurisdiction, however, so that further orders and judgments 
could he entered if it should thereafter be necessary or 
advisable.

In their prayer for relief, the plaintiffs ask that the 
enforcement of the segregation statutes and any other stat­
utes used to enforce segregation be enjoined. They include 
in this prayer not only the restraining of future enforce­
ment, but also the continued enforcement of these statutes 
against all of those arrested after the filing of this suit. 
According to the evidence, this includes some 190 persons. 
The power of the court to grant this request is supported 
fully by law. In Ex parte Young, 1908, 209 U.S. 123, the 
Supreme Court reaffirmed the principle that a court of 
equity could enjoin criminal proceedings commenced after 
the filing of a suit in federal court to enforce the [702] 
same right. The Court stated:

(R-835) “ It is further objected . . . that a court of 
equity has no jurisdiction to enjoin criminal proceed­
ings, by indictment or otherwise, under the state law. 
This, as a general rule, is true. But there are excep­
tions. When such indictment or proceeding is brought 
to enforce an alleged unconstitutional statute, which is 
the subject matter of inquiry in a suit already pending 
in a Federal court, the latter court having first obtained 
jurisdiction over the subject matter, has the right, in 
both civil and criminal cases, to hold and maintain such 
jurisdiction, to the exclusion of all other courts, until 
its duty is fully performed . . . .  Where one com­
mences a criminal proceeding who is already party to 
a suit then pending in a court of equity, if the criminal 
proceedings are brought to enforce the same right that



52

is in issue before that court, the latter may enjoin such 
criminal proceedings.”

209 U.S. at 161-162. See also, In re Sawyer, 1888, 124 U.S. 
200, 211; Truax v. Raich, 1915, 239 U.S. 33, aff’g 219 Fed. 
273 (D. Ariz., 1915). In terms of the anti-injunction stat­
ute, 28 U.S.C. p. 2283, it is a power ‘ in aid of our juris­
diction”  to prevent state courts from interfering with the 
determination of issues properly before the federal court. 
The propriety of granting such a request, however, is dis- 
[703] cretionary, and only the strongest equities will sup­
port such outright interference with state proceedings 
already commenced. I am of the opinion that such equities 
exist in this case.

The plaintiffs have had a motion for preliminary in­
junction pending since the filing of the original complaint 
on June 9, 1961. Although the plaintiffs filed an amended 
complaint on July 17 to make more explicit their attack 
upon the breach of peace arrests, the original complaint 
is broadly enough framed to include them. When a motion 
for preliminary injunction has been made, a three-judge 
court is directed by statute to give an expeditious hearing 
and decision. 28 U.S.C. p. 2284(4) provides, “ the appli­
cation shall be given precedence and assigned for hearing 
at the earliest practicable day.”  28 U.S.C. p. 1253 provides 
that the granting or denial of this motion may be appealed 
directly to the Supreme Court; the appeal lies as a matter 
of (R-836) right. R.G.A. v. United States, N.D. 111., 1950, 
95 F.Supp. 660; aff’d, 341 U.S. 412 (1951). Thus, not only 
were the plaintiffs entitled to an early hearing and decision, 
but, in my opinion, they were entitled to a preliminary in­
junction. As Mr. Justice Brandeis wrote in Union Tool 
Co. v. Wilson, 1922, 259 U.S. 107, 112: ‘ ‘Legal discretion 
. . . does not extend to refusal to apply well-settled prin­
ciples of law to a conceded state of facts.”  The essential 
facts in this case are undisputed, the law to be applied is 
clear, irreparable [704] injury is established by evidence 
of a clear and continued deprivation of constitutional rights. 
The defendants’ argument that such an injunction would 
have changed the status quo and therefore should not have



53

been granted was before the Fourth Circuit Court of 
Appeals in a very similar case involving segregation of 
transportation facilities, and was decided adversely to the 
defendants. Henry v. Greenville Airport Commission, 4 
Cir., 1960, 284 F.2d 631. The defendants should not be 
allowed to rely upon their own continued unconstitutional 
behavior for the purposes of defeating a motion for pre­
liminary injunction. I would follow the ruling in the Henry 
case. See also Clemons v. Board of Education, 6 Cir., 1956, 
228 F.2d 853, 857; Board of Supervisors v. Wilson, 340 U.S. 
S09, affirming 92 F.Supp. 986 (E.D.La., 1950) (preliminary 
injunction granting admission to L.S.U.). Had such an 
injunction issued, arrests and prosecution of those arrested 
would have been terminated, starting at the very latest 
with the date of the first hearing, July 10, 1961.

The continued refusal to rule on this motion, although 
it has been pending since the 9th of June, is in violation 
of this court’s duty under the law, and the refusal should 
therefore be construed as a de facto denial. The reason 
for continuing the first hearing until August 8, 1961, due to 
the sickness of an Assistant Mississippi Attorney General, 
may have been warranted with respect to relief against his 
superior, but the City was present and, [705] (K-837) as 
subsequent events have shown, it was both willing and able 
to carry on a vigorous defense in its own behalf.

Thus, because of the undisputed facts, the clear violation 
of the plaintiffs’ rights, and the unreasonable delay in 
ruling on the preliminary injunction, all prosecutions of 
passengers or intended passengers who were arrested for 
breach of the peace after the filing of the original complaint 
on June 9,1961, but who, as the evidence in this case shows, 
were not themselves disorderly, should be enjoined.

Since this dissenting opinion was written, I have had 
the opportunity to read the memorandum opinion of Judge 
Frank M. Johnson, Jr., in Lewis, et al. v. The Greyhound 
Corporation, et al., M.D. Ala., C.A. 1724-N, m/s, filed No­
vember 1, 1961, and find myself in agreement with nearly 
all of the views expressed by Judge Johnson in that opinion.

I respectfully dissent.
* * * * * * *



54

APPENDIX “ D”

*[368 U S  346]

* S a m u e l  B ailey  et al.

v.
J oe T. P atterson  et al.

368 US 346, 7 L ed 2d 332, 82 S Ct 282 

Decided December 18, 1961.

S u m m a r y

A motion for an injunction to stay the prosecution of 
criminal cases in a state court was denied by the Supreme 
Court of the United States in a per curiam opinion, for the 
reasons appearing in headnote 1, infra.

B la ck  and F r a n k fu r te r , JJ., concurred solely on the 
ground that the movants were not themselves being prose­
cuted or threatened with prosecution in the state courts.

H eadnotes

Classified to U. S. Supreme Court Digest, Annotated 
Courts § 698—enjoining state prosecution—standing.

1. A motion for an injunction to stay prosecution in state 
criminal proceedings will be denied by the Supreme Court 
of the United States, where, in addition to the considera­
tions normally attending an application for such relief, it 
appears that a serious question of standing is presented 
in that the movants themselves are not being prosecuted 
in the state courts.
Courts § 69'8—enjoining state prosecution.

2. A federal injunction to stay state criminal proceed­
ings is an extraordinary remedy.

Appearances of Counsel, p. 939, infra.

[332] U. S. S upreme Court R eports



55

Opin io n  of th e  C ourt

Per Curiam.
This is a motion for an injunction to stay the prosecution 

of a number of criminal cases in the [Headnote 1] courts 
of Mississippi [Headnote 2] pending an appeal to this 
Court from the judgment of a three-judge Federal District 
Court. A federal injunction to stay state criminal pro­
ceedings is an extraordinary remedy. Cf. Douglas v. Jean­
nette, 319 US 157, 87 L ed 1324, 63 S Ct 877, 882; Ex parte 
Young, 209 US 123, 52 L ed 714, 28 S Ct 441, 13 LEA NS 
932, 14 Ann Cas 764. In addition to the considerations 
normally attending an application for such relief, a serious 
question of * [368 US 347] standing is presented on this 
*motion, in that it appears that the movants themselves 
are not being prosecuted in the Mississippi courts. On the 
record before us the motion for a stay injunction pending 
appeal is denied.

Mr. Justice Black and Mr. Justice Frankfurter concur 
in the denial of a stay solely on the ground that the three 
movants are not themselves being prosecuted or threatened 
with prosecutions in Mississippi and they therefore reach 
no other questions.



56

*[369 U S  31]

*S a m u e l  B ailey  et al., Appellants,

v.

J oe T. P atterson  et al.

368 US 31, 7 L ed 2d 512, 82 S Ct 549 

[No. 643]

February 26, 1962 

S u m m a r y

The present action was instituted in the United States 
District Court for the Southern District of Mississippi by 
Negroes living in Mississippi, seeking injunctions to enforce 
their constitutional rights, to nonsegregated service in inter­
state and intrastate transportation, alleging that such rights 
had been denied them under color of state statutes, munici­
pal ordinances, and state custom and usage. A three-judge 
District Court was convened and abstained from further 
proceedings pending construction of the challenged laws 
by the stat courts. (199 F Supp 595.)

On appeal, the Supreme Court, in a per curiam opinion, 
vacated the judgment below’, holding unanimously that no 
state may require racial segregation of interstate or intra­
state transportation facilities, and that, the constitutional 
issue presented by the defendants being essentially fictitious 
in view of earlier decisions, no three-judge court was re­
quired to hear the action.

APPENDIX “ E”

[512] U. S. Supreme Court R eports



57

H eadnotes

Parties § 24; Statutes § 37—who may attack—criminal 
statute—class suits.
1. Persons who do not allege that they have been prose­

cuted or threatened with prosecution under a state criminal 
statute lack standing to enjoin criminal prosecutions of 
others under the statute; they cannot represent a class of 
which they are not a part.

Civil Eights §12.5—enforcement of rights.
2. Negro passengers compelled, under state statutes, 

municipal ordinances, and state custom and usage, to use 
segregated transportation facilities have standing to en­
force their rights to nonsegregated treatment.

[Nee annotation reference 1]

Carriers § 36—racial segregation.
3. No state may require racial segregation of interstate 

or intrastate transportation facilities.
[See annotation reference 1]

Courts § 225.5—three-judge court—frivolous claims.
4. 28 USC § 2281, which requires the convening of a three- 

judge court in a suit for an injunction against the enforce­
ment of a state statute on the ground of its unconstitu­
tionally, does not require a three-judge court where the 
claim that a statute is unconstitutional is wholly _ insub­
stantial, legally speaking nonexistent, or where prior de­
cisions of the United States Supreme Court make frivolous 
any claim that a state statute on its face is not unconsti­
tutional.

[See annotation references 2, 3]

Classified to U. S. Supreme Court Digest, Annotated



58

Courts §225.5; Statutes § 199—provision for three-judge
court—construction.
5. The provision in 28 USC § 2281 for the convening of 

a three-judge court upon an application for an injunction 
against the enforcement of a statute upon constitutional 
grounds is a technical one to he narrowly construed.

[See annotation references 2, 3]

Courts § 225.6—three-judge court—racial segregation.
6. A suit brought by Negroes to enjoin the enforcement 

of state enactments requiring segregated transportation 
facilities is not one required to be heard by a District Court 
of three judges under 28 USC §§ 1253, 2281, since the claim 
that these enactments, on their face, are not unconstitu­
tional is essentially fictitious.

[See annotation references 2, 3]

Appeal and Error § 286—from three-judge court—powers
of Supreme Court.
7. Although under 28 USC § 1253 a judgment of a three- 

judge District Court is not directly appealable to the United 
States Supreme Court where the suit was not one required 
under 28 USC § 2281 to be heard by a three-judge court, 
the Supreme Court, on appeal from such a judgment, has 
jurisdiction to determine the authority of the court below 
and to make such corrective orders as may be appropriate 
to the enforcement of the limitations which § 1253 imposes.

Briefs of Counsel, p. 1011, infra.

O p in io n  of t h e  C ourt 

*[369 US 32]
*Per Curiam.
Appellants, Negroes living in Jackson, Mississippi, 

brought this civil rights action, 28 USC §1343 (3), in the 
United States District Court for the Southern District of



59

Mississippi, on behalf of themselves and others similarly 
situated, seeking temporary and permanent injunctions to 
enforce their constitutional rights to nonsegregated service 
in interstate and intrastate transportation, alleging that 
such rights had been denied them under color of state 
statutes, municipal ordinances, and state custom and usage.1 
A three-judge District Court was convened, 28 USC § 2281, 
and, Circuit Judge Rives dissenting, abstained from further 
proceedings pending construction of the challenged laws 
by the state courts. 199 F Supp 595. Plaintiffs have ap­
pealed, 28 USC § 1253; National Asso. for Advancement 
of Colored People v Bennett, 360 US 471, 3 L ed 2d 1375, 
79 S Ct 1192. We denied a motion to stay the prosecution 
of a number of criminal cases pending disposition of this 
appeal. 368 US 346, 7 L ed 2d 332, 82 S Ct 282.

Appellants lack standing to enjoin criminal prosecutions 
under Mississippi’s breach-of- [Ileadnote 1] peace statutes, 
since they do not allege that they have been prosecuted or 
threatened with prosecution under *[369 US 33] them. 
They cannot Represent a class of whom they are not a 
part. McCabe v Atchison, T. & S. F. R. Co. 235 US 151, 
162, 163, 59 L ed 169, 174, 175, 35 S Ct 69. But as passen­
gers using the [Headnote 2] segregated transportation 
facilities they are aggrieved parties and have standing to 
enforce their rights to nonsegregated treatment. Mitchell 
v United States, 313 US 80, 93, 85 L ed 1201, 1210, 61 S Ct 
873; Evers v Dwyer, 358 US 202, 3 L ed 2d 222, 79 S Ct 178.

We have settled beyond question that no State may re­
quire racial segregation of interstate [Headnote 3] or intra­
state transportation facilities. Morgan v Virginia, 328 US 
373, 90 L ed 1317, 66 S Ct 1050, 165 ALR 574; Gayle v 
Browder, 352 US 903, 1 L ed 2d 114, 77 S Ct 145; Boynton 
v Virginia, 364 US 454, 5 L ed 2d 206, 81 S Ct 182. The 
question is no longer open; it is foreclosed as a litigable 
issue. Section 2281 does not require a three-judge court

1 The statutes in question are Miss. Code 1942 Tit. 11, §§ 2351, 2351.5, 
2351.7, and Tit. 28, §§ 7784, 7785, 7786, 7786-01, 7787, 7787.5.



60

when [Headnote 4] the claim that a statute is unconstitu­
tional is wholly insubstantial, legally speaking nonexistent. 
Ex parte Poresky, 290 US 30, 78 L ed 152, 54 S Ct 3; Bell 
v. Waterfront Comr. of New York Harbor (CA2 NY) 279 
F2d 853, 857, 858. We hold that three judges are similarly 
not required when, as here, prior decisions make frivolous 
any claim that a state statute on its face is not unconsti­
tutional. Willis v Walker (DC Ky) 136 F Supp 181; Bush 
v Orleans Parish School Board (DC La) 138 F Supp 336; 
Kelley v Board of Education (DC Tenn) 139 F Supp 578. 
We denied leave to file petitions for mandamus in Bush, 
351 US 948, 100 L ed 1472, 76 S Ct 854, and from a similar 
ruling in Booker v Tennessee Board of Education, 351 US 
948, 100 L ed 1472, 76 S Ct 856. The reasons for convening 
an extraordinary court are inapplicable in such cases, for 
the policy behind the three-judge requirement—that a single 
judge ought not to be empowered to invalidate a state stat­
ute under a federal claim—does not apply. The three- 
judge requirement is a technical one to be [Headnote 5] 
narrowly construed, Phillips v United States, 312 US 246, 
251, 85 L ed 800, 805, 61 S Ct 480. The statute comes into 
play only when an injunction is sought “ upon the ground 
of the unconstitutionally”  of a statute. There is no such 
ground when the constitutional issue presented is essen­
tially fictitious.

*[369 US 34] *

*This case is therefore not one “ required . . .  to be 
heard and determined by a district [Headnote 6] court 
of three judges,”  [Headnote 7] 28 USC §1253, and there­
fore cannot be brought here on direct appeal. However, 
we have jurisdiction to determine the authority of the 
court below and “ to make such corrective order as may 
be appropriate to the enforcement of the limitations which 
that section imposes,”  Gully v Interstate Natural Gas Co. 
292 US 16, 18, 78 L ed 1088, 1091, 54 S Ct 565; Oklahoma 
Gas & E. Co. v. Oklahoma Packing Co. 292 US 386, 392, 78 
L ed 1318, 1322, 54 S Ct 732; Phillips v United States, 312 
US 246, 254, 85 L ed 800, 806, 61 S Ct 480. Accordingly,



Cl

we vacate the judgment and remand the case to the District 
Court for expeditious disposition, in light of this opinion, 
of the appellants’ claims of right to unsegregated trans­
portation service.

Vacated and remanded. * 1

A n n o t a t io n  R e f e r e n c e s

1. Race discrimination in transportation, 94 L ed 1121, 1128; 98 L ed 
882, 883; 100 L ed 488; 3 L ed 2d 1556; 6 L ed 2d 1302, 1303.

2. Necessity and propriety (under 28 USC 5 2281) of three-judge Fed- 
era District Court in suits to enjoin enforcement of state statute or ad­
ministrative order, 4 L ed 2d 1931.

3. Circumstances rendering necessary or proper a three-judge Federal 
District Court, 83 L ed 1193, 85 L ed 807.



62

APPENDIX “ F ”

[732] (R-1470) F indings  of F ac t , C onclusion s  of L a w ,
an d  D eclaratory J u d gm en t

(Title Omitted—Filed May 3, 1962)

This action was brought by three Negro citizens and 
residents of Jackson, Mississippi, to enjoin the alleged en­
forcement of certain Mississippi statutes which are alleged 
to be unconstitutional. The statutes sought to be enjoined 
are Title 11, Sections 2351, 2351.5 and 2351.7, and Title 28, 
Secs. 7784, 7785, 7786, 7786-01, 7787, 7787.5, Mississippi Code 
Annotated (1942), hereinafter referred to as Mississippi 
segregation statutes. Plaintiffs attack the constitutionality 
of said statutes.

The plaintiffs also seek to enjoin the arrests and prose­
cutions of persons other than the plaintiffs [733] under 
Sections 2087.5, 2087.7 and 2089.5 of the Mississippi Code 
Annotated (1942), as amended in 1960, hereinafter referred 
to as Mississippi breach of peace statutes.
(R-1471) Plaintiffs do not contend that these statutes are 
unconstitutional. A three-judge District Court was con­
vened in this case under Title 28 U.S.C. Section 2281. A 
hearing on plaintiffs’ motion for a preliminary injunction 
was consolidated with a hearing on the merits. The three- 
judge Court abstained from further proceedings pending 
construction of the challenged laws by the state courts. 
199 F.Supp. 595. Plaintiffs appealed, and the Supreme 
Court of the United States denied a motion for an injunc­
tion pending disposition of the appeal. 368 U.S. 346. The 
Supreme Court of the United States held that this was not 
a proper matter for a three-judge District Court, vacated 
the judgment, and remanded the case to this Court for 
expeditious disposition of plaintiffs ’ claims of right to un­
segregated transportation service. ------U .S .------- , 7 L.Ed.
2d 512. Accordingly, an order has been entered herein 
dissolving the three-judge Court.



63

F indings  of F act

1. None of the plaintiffs has been arrested or threatened 
with arrest under any of the segregation statutes attacked 
in this case. The plaintiffs have not been arrested or 
threatened with arrest under any of the Mississippi breach 
of peace statutes referred to in the [734] amended com­
plaint. The plaintiffs have not been denied any right, 
privilege or immunity claimed by them by virtue of said 
segregation statutes.

2. The interests of the plaintiffs are antagonistic to and 
not wholly compatible with the interests of (R-1472) those 
whom they purport to represent. They do not belong to 
a class which would include the persons arrested and prose­
cuted in the Mississippi Courts under the breach of peace 
statutes.

3. There have been no arrests or prosecutions under the 
segregation statutes attacked in this case for many years, 
and said statutes have not been enforced in Mississippi.

4. Evidence offered by the plaintiffs affirmatively estab­
lishes as a fact that none of the defendants has made any 
effort to control the action of Negroes in any of the termi­
nals or on any of the carriers involved in this case.

5. The evidence discloses isolated instances of improper 
behavior on the part of certain law enforcement officers. 
The fact that they are relatively few in number emphasizes 
their absence as a general practice or policy. As much as 
we would like to see it otherwise, law enforcement officers 
are not infallible. Being human, there are those who are 
guilty of improper conduct, but the evidence in this case 
proves that such conduct is a [735] rare exception rather 
than the general practice. While we cannot condone the 
mistakes made by a few law enforcement officers, we cannot 
indict a municipality or a State because of isolated errors 
in judgment on the part of such officers. For instance, one 
of plaintiffs’ witnesses testified that he used the Jackson 
airport from fifteen to twenty times a year. On one occa­
sion an unidentified waitress refused to serve him in the 
restaurant. He did not report this incident to anyone in 
authority with the (R-1473) airport or with the City.



64

Plaintiffs’ witness, Dr. Jane McAllister, testified that she 
had commuted daily by bus from Jackson to Vicksburg, 
Mississippi, for ten years. As a colored person, she had 
always sat where she wished on the bus. On one occasion 
she was treated rudely by a Jackson policeman. The same 
is true of several other isolated instances reflected by 
plaintiffs’ evidence.

6. There was no evidence of any arrest in the City of 
Jackson of a Negro prior to April, 1961, when the Freedom 
Riders began their much publicized visits to that City. The 
arrests of those persons involved both white and colored 
people who were arrested at the same place and for the 
same reason. Neither race nor color nor location of facility 
being used had anything to do with those arrests. No such 
arrest was made under any of Mississippi’s segregation 
statutes. The cases arising out of those arrests are now 
pending in the Courts of the [736] State of Mississippi, 
and this Court should not attempt to determine the merits 
of those State Court actions.

7. All segregation signs have been removed from the 
premises of all of the carrier defendants. All facilities 
in all terminals of the carrier defendants are now being 
freely used by members of all races, and there is no justifi­
cation for the issuance of an injunction in this case.

(R-1474) C onclusions  op L aw

1. This Court has jurisdiction of the parties hereto and 
the subject matter hereof.

2. This is not a proper class action, and no relief may 
be granted other than that to which the plaintiffs are per­
sonally entitled. In the complaint plaintiffs purported to 
represent themselves and “ other Negroes similarly situ­
ated” . In the amended complaint plaintiffs purported to 
represent “ Negro citizens and residents of the State of 
Mississippi and other states” . Plaintiffs’ right to repre­
sent anyone but themselves was put in issue by the plead­
ings. The testimony of the plaintiffs was conflicting as to 
the identity of the class purported to be represented. They 
proved no authority to represent any other person and 
admitted that other Negroes did not approve of this action.



65

On appeal an attempt was made to broaden the alleged class 
to include white and colored [737] freedom riders. Whether 
this is a proper class action involves a question of fact. 
Flaherty v. McDonald, D.C. Cal., 178 F.Supp. 544. The 
plaintiffs cannot make this a legitimate class action by 
merely calling it such. Pacific Fire Ins. Co. v. Reiner, D.C. 
La., 45 F.Supp. 703. The burden of proof on this issue was 
on the plaintiffs. Oppenheimer v. F. J. Young & Co., D.C. 
N.Y., 3 F.R.D. 220. The plaintiffs failed to meet this bur­
den. In addition, a class action cannot be maintained where 
the interests of the plaintiffs are antagonistic to and not 
wholly compatible with the interests of those whom they 
purport to represent. Flaherty v. McDonald, D.C. Cal., 
178 F.Supp. 544; Redmond, (R-1475) et al v. Commerce 
Trust Co., C.C.A. 8th, 144 F.2d 140; Brotherhood of Loco­
motive Firemen and Enginemen v. Graham, et al., C.C.A. 
Dist. of Columbia, 175 F.2d 802; Kentucky Home Mut. Life 
Ins. Co. v. Duling, C.C.A. 6th, 190 F.2d 797; Advertising 
Specialty National Association v. Federal Trade Commis­
sion, C.C.A. 1st, 238 F.2d 108; and Troup v. McCart, C.C.A. 
5th, 238 F.2d 289. The efforts of the plaintiffs to bring 
white and colored freedom riders within the class repre­
sented make it clear that this is not a proper class action. 
Bailey v. Patterson,------U.S. ------- , 7 L.ed.2d 512.

3. The three plaintiffs are entitled to an adjudication of 
their personal claims of right to unsegregated transporta­
tion service by a declaratory judgment [738] herein.

4. It is mandatory upon this Court to declare the Missis­
sippi segregation statutes and City ordinance attacked in 
this case to be unconstitutional and void as violative of the 
Fourteenth Amendment to the Constitution of the United 
States. Bailey v. Patterson,------U .S .------- , 7 L.Ed.2d 512.

5. Under the facts of this case, the plaintiffs are not now 
entitled to injunctive relief. In so holding, this Court is 
seeking to observe a vital and fundamental policy which for 
many years has been pronounced and followed by the United 
States Supreme Court and by other Federal Courts to the 
effect that Federal Courts of equity shall conform to clearly 
defined Congressional policy by refusing to interfere with 
or embarrass threatened prosecution in State Courts ex-



66

eept in those exceptional cases (R-1476) which call for in­
terposition of a Court of equity to prevent irreparable in­
jury which is clear and imminent. The issuance of a writ 
of injunction by a Federal Court sitting in equity is an 
extraordinary remedy. Bailey v. Patterson (on motion for 
stay injunction pending appeal), 368 U.S. 346. Injunctive 
relief will never be granted where the parties seeking same 
have adequate remedies at law. Douglas v. City of Jean­
nette, 319 U.S. 157, 87 L.Ed. 1324; Cobb v. City of Malden, 
C.C.A. 1st, 202 F.2d 701; Brown v. Board of Trustees, U.S. 
C.A. 5th, 187 F.2d 20 ; and [739] State of Mo. ex rel Gaines 
v. Canada, 305 U.S. 337, 83 L.Ed. 208. It is discretionary 
with the Court as to whether it will enjoin enforcement of 
an unconstitutional statute, and it will not do so in the 
absence of a strong showing that the plaintiffs will suffer 
immediate and irreparable injury in the absence of injunc­
tive relief. Kingsley International Pictures Corp. v. City 
of Providence, 166 F.Supp. 456. The Court will not enjoin 
enforcement of an unconstitutional statute in the absence 
of evidence that said statute is being enforced. Poe v. 
Tillman, 367 U.S. 497, 6 L.Ed.2d 989. In Bailey v. Patterson,
------ U.S.------ , 7 L.Ed.2d 512, the Supreme Court of the
United States correctly held that plaintiffs were not en­
titled to enjoin the criminal prosecutions of the freedom 
riders, and said:

“ Appellants lack standing to enjoin criminal prose­
cutions under Mississippi’s breach of peace statutes, 
since they do not allege that they have been prosecuted 
or threatened with prosecution under them.”

(R-1477) 6. The desire to obtain a sweeping injunction
cannot be substituted for compliance with the general rule 
that the plaintiffs must present facts sufficient to show that 
their individual needs require injunctive relief. Bailey v. 
Patterson,------U .S.------- , 7 L.Ed.2d 512; McCabe v. Atchi­
son T. & S. F. By. Co., 235 U.S. 151, [740] 59 L.Ed. 169; 
Brown v. Board of Trustees, U.S.C.A. 5th, 187 F2d 20; 
and Kansas City, Mo., et al v. Williams, et al, U.S.C.A. 
8th, 205 F.2d 47.

7. Although no injunctive relief should now be granted,



67

this Court should retain jurisdiction over this action and 
each of the defendants for such further orders and relief 
as may subsequently be appropriate.

This May 1st, 1962.
/ s /  S. C. M ize .

(R-1478) D eclaratory J udgm ent

It Is Ordered, A djudged  and  D eclared as follows, to-wit:
(1) That this is not a proper class action, and no relief 

may be granted other than that to which the plaintiffs are 
personally entitled.

(2) That each of the three plaintiffs has a right to un­
segregated transportation service from each of the carrier 
defendants.

(3) That the Mississippi segregation statutes and City 
ordinance attacked in this case are unconstitutional and 
void as violative of the Fourteenth Amendment to the 
Constitution of the United States of America.

(4) That the plaintiffs are not now entitled to any in­
junctive relief, but jurisdiction over this [741] action and 
each of the defendants is hereby retained for the entry of 
such further orders and relief as may be subsequently ap­
propriate.

(5) That all Court costs incurred herein be and the same 
are hereby taxed against the defendants.

O rdered, A djudged  and  D eclared, this 1st day of May, 
1962.

/ s /  S. C. M ize ,
United States District Judge.

E ntered  J ackson  D ivision  of t h e  S o u th ern  D istrict of 
M ississippi.

Order B ook 1962, p a ges  208 th rou gh  216.
# # # # # # #



68

[843] (R-1568) The Court: Well, Gentlemen, upon the
findings of facts ! that I have heretofore made, upon the 
merits of the case up to that time, I will adhere to that find­
ing of facts that I made at that time. I think from the rec­
ord those findings of facts were appropriate and proper, ex­
cept that I will amend the findings of fact to the extent 
that Cicero Carr (R-1569) under his testimony I think was 
in violation of the statute and the law where there was 
discrimination. His testimony showed there was some 
discrimination. However, I am not [844] going to pass 
upon the question at this time of whether any injunction 
shall issue against him or not, hut I am going to modify 
my conclusion of the law in the declaratory judgment to 
the extent that Cicero Carr’s method of serving customers 
was discriminatory, and that is not lawful, and there shall 
he and can be no discrimination by him in serving the pub­
lic who come in for service. So the declaratory judgment 
will be amended to that extent.

The Court will permit Cicero Carr ten days within which 
to file any affidavit that he may desire to file as to whether 
or not he has violated or is violating the ruling of the Court 
heretofore made and, if so, whether he intends to discon­
tinue same and comply with any declaratory judgment that 
the Court may render in this cause.

Now, as to the municipal airport, I think those signs 
appearing over the restrooms and over the drinking foun­
tains are improper and unlawful. I think that there must 
be no signs at any of the facilities which tend to show and 
encourage and require, I might say, discrimination or sep­
aration of the races. I think those signs should be removed, 
and I will allow the defendant a week in which to remove 
those signs, eliminate those signs over the restroom and 
drinking fountains. If that is not done, then appropriate 
action will be taken.
(R-1570) In all other respects the findings of fact I have 
heretofore made will be sustained and upheld and adhered

APPENDIX “ G”



69

to, and [845] the motion for amendment will be overruled 
except to the extent I have already announced with refer­
ence to Cicero Carr and the municipal airport.

Now, as to the affidavits on the new occurrences, of course, 
I will not make any announcement until those affidavits 
and the counter-affidavits have been filed, so that I will have 
all the affidavits before me when I pass upon that question.

With that, Gentlemen, the court now stands in recess.

* * * * * * *



70

[785] (R-1572) S u p ple m e n t a l  F in d in g s  o p  F ac t , C o n ­
clusions  of L a w , and  D eclabatory J udgm ent

(Title Omitted—Filed July 25, 1962)

In its declaratory judgment previously entered herein, 
this Court retained jurisdiction over this action and all of 
the parties hereto for the entry of such additional orders 
and for the granting of such additional relief as may he 
subsequently appropriate.

At the time of the entry of the declaratory judgment 
herein, counsel for the plaintiffs submitted the form of a 
judgment which they suggested should be entered [786] 
which granted plaintiffs an immediate injunction against 
all defendants. This was treated as a motion for judgment 
and was denied for the reasons set out in full in this Court’s 
findings of fact, conclusions of law and declaratory judg­
ment in this case.
(R-1573) Prior to the entry of the declaratory judgment 
herein, affidavits were filed in this action on behalf of 
Jackson City Lines, Inc., the Greyhound Corporation and 
Continental Southern Lines, Inc. to the effect that all signs 
indicating use of any facility by any race had been removed 
from the premises and buses of said defendants.
_ Subsequently, an affidavit was filed herein by the plain­

tiff, Broadwater, to the effect that he had observed “ white”  
and “ colored”  signs near the water fountains and rest 
rooms of the Jackson Municipal Airport; that he had ob­
served a sign on a Jackson City Lines Bus indicating that 
white passengers were to take front seats and colored pas- 
engers were to take rear seats; that two waiting rooms 
were being maintained in the terminal of each carrier de­
fendant, and that the City of Jackson maintained signs 
on the public sidewalks near the carrier terminals with 
designations as to white and colored waiting rooms. In 
response, affidavits were filed on behalf of the Jackson 
Municipal Airport and the City of Jackson denying any 
enforcement of the signs complained of and showing use of

APPENDIX “ H”



71

all terminal facilities by members of all races without dis­
crimination of any kind. [787] Jackson City Lines, Inc. 
filed an affidavit to the effect that the failure to remove the 
sign on its buses was an oversight and that same had been 
removed.

A hearing was afforded all parties to this proceeding, at 
which counsel for plaintiffs requested and were granted 
permission to file additional affidavits. Defendants were 
given reasonable time within which to file responsive affi­
davits. The Court ruled tentatively at that time that the 
signs in the Jackson Municipal Airport should be removed 
(R-1574) and that the evidence in the case in chief showed 
discrimination on the part of Cicero Carr, the lessee of the 
Jackson Municipal Airport Restaurant, in serving members 
of the colored race and that said discrimination should be 
discontinued. This finding was supported by an affidavit 
of Derrick A. Bell filed herein. Subsequently, an affidavit 
was filed herein by Cicero Carr to the effect that the air­
port restaurant was being converted to a standup-counter 
service and that there would be no discrimination in serving 
members of the public in said restaurant because of race, 
creed or color. An affidavit was filed on behalf of the Jack- 
son Municipal Airport Authority showing removal of all 
signs from the water fountains and rest rooms in the air­
port.

An affidavit was filed herein by Royce M. Smith that he 
was refused service in a restaurant in the terminal of Conti­
nental Southern Lines, Inc. in Meridian, Mississippi, by 
unidentified employees of said restaurant; that he was 
[788] asked to leave the restaurant by an unidentified police 
officer of the City of Meridian, Mississippi.

An affidavit was filed herein by Mrs. Clarie Collins 
Harvey to the effect that she was asked to leave a waiting 
room of the Continental Southern Lines, Inc. terminal at 
Gulfport, Mississippi, by unidentified police officers. Re­
sponsive affidavits have been filed on behalf of Continental 
Southern Lines, Inc. to the effect that none of its employees 
or representatives participated in or wTere responsible for 
any of the acts complained of.

Subsequently, an affidavit was filed herein by David



72

Campbell to the effect that he was permitted to eat in a 
room operated by Cicero Carr in the Jackson Municipal 
(B-1575) Airport exclusively for airport personnel. A re­
sponsive affidavit was filed by Mrs. Myrtle Nelson, an em­
ployee of Cicero Carr in said restaurant. It appears from 
both affidavits that the occurence arose out of a mutual 
misunderstanding as to the status of David Campbell and 
is not pertinent to any issue of discrimination in this case.

S u p ple m e n t a l  F in d in g s  of F act

The signs referring to race near the water fountains and 
rest rooms of the Jackson Airport were improper but have 
now been removed.

The sign on the bus of the Jackson City Lines complained 
of was improper but has now been removed.
[789] The defendant, Cicero Carr, has discriminated 
against colored passengers in the restaurant operated by 
him in the Jackson Municipal Airport, but such discrimina­
tion has terminated.

All facilities of all carrier defendants and of the Jackson 
Municipal Airport Authority are now being used by mem­
bers of all races without discrimination of any kind.

S u p ple m e n t a l  C onclusion s  of Law

The defendant, Continental Southern Lines, Inc., did 
not participate in and is not responsible for either the 
occurrence at Meridian, Mississippi, or the occurrence at 
Gulfport, Mississippi. Neither of said cities nor the persons 
involved in said occurrences are parties to this action, and 
said occurrences are not pertinent to the issues involved 
herein.
(R-1576) The Court finding that all matters of substance 
complained of have been corrected and that there will be 
no re-occurrence of same, it is of the opinion that the 
plaintiffs are not now entitled to injunctive relief, but that 
this Court should retain jurisdiction over this action and 
each of the defendants for such further orders and relief 
as may subsequently be appropriate.



73

That all future complaints made herein by the plaintiffs, 
or any of them, shall be by one or more supplemental 
complaints reciting the matters and facts [790] complained 
of.

This July 23rd, 1962.
/ s /  S. C. M ize ,

, hedge.

(R-1577) S u p ple m e n t a l  D eclabatoey J udgm ent

It Is O rdered, A djudged and  D eclared as follows, to-wit:
(a) That each of the three plaintiffs has a right to 

unsegregated service from the defendant, Cicero W. 
Carr, in the restaurant at the Jackson Airport.

(b) That the plaintiffs are not now entitled to any 
injunctive relief, but jurisdiction over this action and 
each of the defendants is hereby retained for the entry 
of such further orders and relief as may be subse­
quently appropriate.

(c) That all future complaints made herein by the 
plaintiffs, or any of them, shall be by one or more sup­
plemental complaints reciting the matters and facts 
complained of.

(d) That all Court costs incurred herein be and the 
same are hereby taxed against the defendants.

O rdered, A djudged and  D eclared th is 23rd, day of July, 
1962.

[791] / s /  S. C. M ize ,
United States District Judge.

0. B. 1962, pp. 365, 366, 367, 368, 369, 370.



74

[850] (R-1598) Re: Bailey, et al v. Jackson, Patterson,
et al

No. 3133
Gentlemen:

I have considered the plaintiffs’ motion to amend the 
Court’s supplemental findings of fact and conclusions of 
law and have reached the conclusion from the record and 
all the affidavits that the motion should be sustained in 
part and denied in part, and am herewith enclosing you 
copy of the amended findings of fact and conclusions of law
[851] and the amended supplemental declaratory judg­
ment.

Cicero Carr on or about August 1 and 2, 1962 was guilty 
of discrimination in the operation of the Airport Restau­
rant, but immediately upon learning thereof the Airport 
Authority terminated his lease and he no longer is con­
nected in any capacity whatsoever with the Jackson Munic­
ipal Airport Authority. I have further provided in the 
amended findings of fact that he shall not be rehnployed 
in any capacity or in any connection with the Jackson 
Municipal Airport.

It is my thought and I have so found that all the other 
defendants are complying with the declaratory judgment 
(R-1599) heretofore entered and I am definitely of the 
opinion that they will continue to do so. I think these de­
fendants are acting in good faith and that they recognize 
that the law is well settled now so that there will he no 
further discrimination by any of the defendants.

The matter as to Cicero Carr, as I see it, is really moot, 
since he is no longer connected with any of the defend­
ants and it is not necessary to enter a judgment or any 
injunction against him. For reasons heretofore stated 
in my rulings, I am of the opinion that an injunction is

APPENDIX “ I ”



75

not required in this case and I am convinced, as heretofore 
stated, that all the other defendants will comply with the 
declaratory judgment heretofore entered in this case. You 
will note that the order is dated August 22, 1962.
[852] With kindest regard to all of you, I am

Sincerely yours,
/ s /  S. C. M ize .



76

[846] (R-1594) O rder S u sta in in g  in  P art an d  Over­
r u lin g  in  P art P l a in t if f s ’ M otion  t h a t  th e  C ourt 
A m en d  I ts S u p ple m e n t a l  F indings  of F act , C o n clu ­
sions of L a w , and  D eclaratory  J u d g m e n t .

(Title Omitted—Filed Aug. 24, 1962)

In considering plaintiffs’ motion to amend this Court’s 
supplemental findings of fact, conclusions of law and de­
claratory judgment of July 23, 1962, the Court has care­
fully considered the following:

Plaintiffs’ motion to amend.
Affidavit of Austin Hollander dated August. 3, 1962.
Affidavit of Peter Richard Gilbert dated August 4,
1962.
Affidavit of Robert Henry Johnson dated August 3,
1962.
Affidavit of Lucy Garlock Barker dated August 3,
1962.
Affidavit of Dewey Roosevelt Green, Jr. dated August 3,
1962.
[847] (R-1595) Affidavit of T. A. Turner dated
August 6, 1962.

These affidavits disclose that on August 1 and 2, 1962, 
the defendant, Cicero Carr, was guilty of discrimination 
in the operation of the airport restaurant facilities, but 
that said defendant’s lease agreement with the Jackson 
Municipal Airport Authority was terminated by the Au­
thority on August 6,1962, and as soon as the Authority was 
apprised of the facts set forth in said affidavits. Said affi­
davits further disclose that the said Cicero Carr will not 
hereafter have any interest in or control over the operation 
of the restaurant facilities in the Jackson Municipal Air­
port and that said facilities are now being and will here­

APPENDIX “ J”



77

after be operated without discrimination of any kind. The 
motion filed by the plaintiffs should be and the same is 
hereby sustained in part and overruled in part.

A m ended  S u p ple m e n t a l  F indings  oe F act

The signs referring to race near the water fountains 
and rest rooms of the Jackson Airport were improper but 
have now been removed.

The sign on the bus of the Jackson City Lines complained 
of was improper but has now been removed.

The defendant, Cicero Carr, has discriminated against 
colored passengers in the restaurant operated by [848] 
him in the Jackson Municipal Airport, but said defendant’s 
lease agreement with the Jackson Municipal Airport Au­
thority has been terminated, and he will no longer have 
any interest (R-1596) in or control over said restaurant 
facilities which are now and will hereafter be operated 
without discrimination of any kind.

All facilities of all carrier defendants and of the Jackson 
Municipal Airport Authority are now being used by mem­
bers of all races without discrimination of any kind.

/ s /  S. C. M ize .

A mended  S u p ple m e n t a l  D eclaratory J udgm ent 

It Is O rdered, A djudged  and  D eclared  as follows, to-wit:
(a) That each of the three plaintiffs has a right to 

unsegregated service from the restaurant at the Jack- 
son Airport.

(b) That the defendant, Cicero Carr, should not 
have any interest in or control over the restaurant 
facilities in the Jackson Airport in the future and 
should not be employed in any capacity in the opera­
tion of said facilities.

(c) That the plaintiffs are not now entitled [849] 
(R-1597) to any injunctive relief, but jurisdiction over 
this action and each of the defendants is hereby re-



78

tained for the entry of such further orders and relief 
as may be subsequently appropriate.

(d) That all future complaints made herein by the 
plaintiffs, or any of them, shall be by one or more 
supplemental complaints reciting the matters and facts 
complained of.

(e) That all Court costs incurred herein be and the 
same are hereby taxed against the defendants.

Ordered, A djudged  and  D eclared this 22nd day of 
August, 1962.

/ s /  S. C. M iz e , 
United States District Judge.

O.B. 1962, Pages 434, 435, 436 & 437.
#  *  * # #



79

I n  t h e  U nited  S tates C ourt op A ppeals for t h e  F if th
C ir cu it

No. 20372

S a m u e l  B aile y , et  al , Appellants,

versus

J oe T. P atterson , Attorney General of the State of 
Mississippi, et al , Appellees.

Appeal from the United States District Court for the 
Southern District of Mississippi.

(September 24, 1963.)

Before C am ero n , W isdom  and H ays ,* Circuit Judges.
H ay s , Circuit Judge: Plaintiffs, Negroes living in

Jackson, Mississippi, appeal from judgments of the 
United States District Court for the Southern District 
of Mississippi, S.C. Mize, Judge, which declared un­
constitutional both the so-called Segregation Statutes of 
the State of Mississippi,1 and a similar ordinance of the 
City of Jackson, and declared that each of the plaintiffs 
had a right to unsegregated transportation service from 
each of the carrier defendants,* 1 2 but denied to appellants 
injunctive or class relief against any of the defendants.

APPENDIX “ K”

* Of the Second Circuit, sitting by designation.
1 Miss. Code Ann. tit. 11, $§ 2351, 2351.5, 2351.7, and tit. 28, 5 § 7784, 

7785, 7786, 7786-01, 7787, 7787.5 (1942).
2 The defendants-appellees, Jackson City Lines, Inc., Jackson Municipal 

Airport Authority, Continental Southern Lines, Inc. (Trailways), Southern 
Greyhound Lines, and Illinois Central Railroad, Inc. are referred to here­
after as the carrier defendants or carrier appellees. The latter four are 
referred to as the interstate carriers. Jackson City Lines, Inc., Continental 
Southern Lines, Inc. and Southern Greyhound Lines are referred to as 
bus company defendants or bus company appellees.



80

We hold that appellants are entitled to injunctive relief 
and reverse the judgments, pro tanto.

Jurisdiction was invoked under the Civil Rights Act, 
28 U.S.C. § 1343, and 42 U.S.C. § 1983. Plaintiffs alleged 
that defendants, acting under color of state law, policy, and 
custom, denied to plaintiffs and the class of all others 
similarly situated, their right to transportation service 
free from racial discrimination. They based their claim 
on the Fourteenth Amendment and the Commerce Clause 
of the Constitution of the United States, and on the In­
terstate Commerce Act, 49 U.S.C. §§3(1), 316(d). Plain­
tiffs sought to enjoin the enforcement of state and muni­
cipal segregation laws affecting common carriers, and to 
enjoin all defendants from maintaining racial segregation 
in any manner, by the use of signs or otherwise, on the 
carriers3 or in or around their terminals or other facilities 
anywhere in the state. Plaintiffs also sought to enjoin 
the municipal authorities from continuing to arrest, harass, 
intimidate, threaten or coerce plaintiffs or members of 
their class in the exercise of their federally protected 
rights.

A three judge court, convened pursuant to 28 U.S.C. 
§2281, invoked the doctrine of equitable abstention “ to 
give the state courts of Mississippi a reasonable op­
portunity to act.”  199 F. Supp. 595, 603 (S.D. Miss. 
1961) (Rives, C.J., dissenting). On a direct appeal, the 
Supreme Court vacated the judgment, and remanded the 
case to the district court “ for expeditious disposition . . . 
of appellants’ claims of right to unsegregated transporta­
tion service.”  369 U.S. 31, 34 (1962). The Supreme 
Court held that the abstention doctrine was inapplicable, 
and that there was no justification for convening a three 
judge court.

“ We have settled beyond question that no State 
may require racial segregation of interstate or intra­
state transportation facilities. Morgan v. Virginia,

3 While the eomplaint does not allege that seating on the trains of the 
Illinois Central Railroad is segregated, this exception does not extend to 
its depots.



81

328 U.S. 373; Gayle v. Browder, 352 U.S. 903 ; Boynton 
v. Virginia, 364 U.S. 454. The question is no longer 
open; it is foreclosed as a litigable issue. Section 2281 
does not require a three-judge court when the claim 
that a statute is unconstitutional is wholly insubstantial, 
legally speaking non-existent. * * * We hold that 
three judges are similarly not required when, as here, 
prior decisions make frivolous any claim that a state 
statute on its face is not unconstitutional.”

369 U.S. at 33.
The Court also disposed of the argument that plain­

tiffs lacked standing to bring the action.
“ [A]s passengers using the segregated transporta­
tion facilities they are aggrieved parties and have 
standing to enforce their rights to nonsegregated 
treatment. Mitchell v. United States, 313 U.S. 80, 
93; Evers v. Dwyer, 358 U.S. 202.”

369 U.S. at 33.4
Upon the remand, the district court, on the original 

record before the three judge court, entered judgment de­
claring the statutes and ordinance unconstitutional, and 
stating that “ each of the three plaintiffs has a right to 
unsegregated transportation service from each of the 
carrier defendants.”  It ruled, however, that the action 
was “ not a proper class action, and no relief may be 
granted other than that to which the plaintiffs are per­
sonally entitled.”  The district court found that the segre­
gation statutes were no longer enforced, that the record 
disclosed only “ isolated instances”  of improper behavior 
by law enforcement officials, that segregation signs had 
been removed from the premises of the carrier defendants, 
and that all terminal facilities of the carriers were now

4 Plaintiffs had also sought to enjoin certain criminal prosecutions under 
Mississippi’s breach of peace statutes. The Supreme Court held that since 
plaintiffs did not allege that they had been prosecuted or threatened with 
prosecution under these statutes, they lacked standing to sue. 369 U.S. 
at 32.



82

being fully used by members of all races. It therefore 
denied injunctive relief, but retained jurisdiction for the 
entry of further orders as might subsequently appear ap­
propriate.

Appellants promptly moved to amend the findings, and 
for further relief on the basis of affidavits showing con­
tinuing segregation. A hearing was held, and the court 
found that signs referring to race had remained posted, 
and that certain other discrimination had continued after 
the initial order, but that the situation had now been cor­
rected. Injunctive and class relief was again denied.

Upon a subsequent motion again alleging continued 
segregation, injunctive relief was denied for a third time.5

Plaintiffs appeal from all three orders, insofar as they 
(a) refused to grant injunctive relief, (b) refused to recog­
nize the class nature of the action, and (c) refused to 
enjoin the City of Jackson from maintaining racial signs 
on the sidewalks outside the waiting rooms at the terminals 
of the carrier defendants. These signs had been ignored 
in the findings and orders of the district court.

Our decision in United States v. City of Jackson, ------
P. 2 d ------, rendered May 13, 1963, after the notice of ap­
peal herein was filed, renders moot the third of the three 
bases of the appeal. We ordered that an injunction should 
issue against the City of Jackson, in Commissioners, and 
its Chief of Police directing the removal of these same 
signs and any others indicating or suggesting that any 
of the terminal facilities are for the use of persons of any 
particular race or color. We further directed that the 
defendants be enjoined from “ otherwise seeking to en­
force or encourage racial segregation in the use of terminal 
facilities of the carriers.”

5 The moving papers alleged that Negroes were still being discriminated 
against in the restaurant at the Jackson Municipal Airport. The court 
found that the manager of the restaurant, the defendant, Cicero Carr, had 
continued to discriminate against Negroes in the restaurant, but that his 
lease had terminated and he would no longer have any interest in or control 
over the restaurant facilities. It ordered that Carr should not be employed 
by those facilities in the future, but denied further relief.



83

Only the first two bases for the appeal herein remain 
for our consideration.

We find it unnecessary to set forth the evidence in de­
tail. Suffice it to say that appellants, all Negro residents 
of Jackson, Mississippi, have experienced racial segrega­
tion in using the facilities of each of the carrier appellees. 
Separate waiting rooms, drinking fountains, rest rooms 
and other terminal facilities were maintained by the car­
rier appellees, and signs directed to race were posted in 
the terminals of the interstate carrier defendants, and on 
the buses of the Jackson City Lines. The latter signs 
directed Negroes to the rear of the bus. Negro witnesses, 
other than appellants, testified to instances in which they 
had been ordered by drivers of each of the bus company 
appellees to sit in the rear of the bus, and in which police 
had been called and the witnesses arrested upon their 
refusal to comply. Appellants introduced in evidence ap­
proximately 190 judgments of conviction for breach of the 
peace entered against persons arrested in waiting rooms 
of the interstate carrier appellees in Jackson at the time 
of the so-called Freedom Ride demonstrations in the sum­
mer of 1961. Appellants themselves have neither been 
arrested nor threatened with arrest for refusal to comply 
with the segregation laws or policies of the appellees. 
They were, however, users of appellees’ segregated facili­
ties and thus acquired standing to sue. Bailey v. Patter­
son, supra, 369 U.S. at 33. The law is crystal clear that 
they were not required to subject themselves to arrest in 
order to maintain this suit. Evers v. Dwyer, 358 U.S. 202 
(1958); Morrison v. Davis, 252 F. 2d 102 (5th Cir.), cert, 
denied, 356 U.S. 968 (1958); Baldwin v. Morgan, 251 F. 2d 
780, 787 (5th Cir. 1958).

Even after the entry of judgment in the present case, 
separate facilities for white and Neg-ro passengers con­
tinued to be maintained by all carrier defendants, and 
racial signs remained posted. The lessees of restaurants 
at the Jackson Municipal Airport and at a Continental 
(Trailways) bus terminal in Meridian, Mississippi, con­
tinued to refuse unsegregated service to Negroes.



84

I
Appellees insist that these practices have now ceased, 

that all racial signs in and around the facilities of the 
carrier defendants have now been removed, and that 
state and municipal segregation laws are no longer en­
forced. Even assuming this to be so, appellants are 
entitled to injunctive relief. Notwithstanding the clear 
pronouncements of the Supreme Court in the present case, 
369 U.S. 31, and in Boynton v. Virginia, 364 U.S. 454 
(I960); Gayle v. Browder, 352 U.S. 903 (1956); and Mor­
gan v. Virginia, 328 U.S. 373 (1946); of this Court in 
Boman v. Birmingham Transport Co., 280 F. 2d 531 (5th 
Cir. 1960); Morrison v. Davis, supra; and Baldwin v. Mor­
gan, supra; of the district courts in United States v. City 
of Montgomery, 201 F. Supp. 590 (M.D. Ala. 1962); Brooks 
v. City of Tallahassee, 202 F. Supp. 56 (N.D. Fla. 1961); 
and Lewis v. Greyhound Corp., 199 F. Supp. 210 (M.D. 
Ala. 1961); and of the Interstate Commerce Commission 
in N.A.A.C.P. v. St. Louis S.F. By., 297 I.C.C. 335 (1955), 
to name but some of the pertinent cases, appellees continued 
to maintain their policies and practices of racial segrega­
tion. The record here shows that these policies and prac­
tices were continued even after the entry of judgment by 
the district court in the present case. The recent statement 
of this court in United States v. City of Jackson, supra, 
is pertinent:

“ We again take judicial notice that the State of 
Mississippi 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 Jackson police add muscle, bone, and sinew to the 
signs.”

------- F. 2d at ------- (footnotes omitted). See also Meredith
v. Fair, 298 F. 2d 696, 701 (5th Cir.), cert, denied, 371 U.S. 
828 (1962).

Under these circumstances, the threat of continued or 
resumed violations of appellant’s federally protected rights



85

remains actual. Denial of injunctive relief might leave the 
appellees “ free to return to [their] old ways.”  United 
States v. W. T. Grant Co., 345 U.S. 629, 632 (1953). “  It is 
the duty of the courts to beware of efforts to defeat injunc­
tive relief by protestations of repentance and reform, espe­
cially when abandonment seems timed to anticipate suit, and 
there is probability of resumption.”  United States v. 
Oregon State Medical Soc’-y, 343 U.S. 326, 333 (1952). In 
the Grant case, supra, the Court said:

“ Along with its power to hear the case, the court’s 
power to grant injunctive relief survives discontinu­
ance of the illegal conduct. TIeclit Co. v. Boyles, supra; 
GoshenMfg. Co. v. Myers Mfg. Co.. 242 U.S. 202 (1916). 
The purpose of an injunction is to prevent future 
violations, Swift & Co. v. United States, 276 U.S. 311, 
326 (1928), and, of course, it can be utilized even with­
out a showing of past wrongs. But the moving party 
must satisfy the court that relief is needed. The neces­
sary determination is that there exists some cognizable 
danger of recurrent violation. . . . ”

345 U.S. at 633. On the present record, it is clear that 
such danger exists. Cf. Berrington v. Plummer, 240 F. 2d 
922, 925 (5th Cir. 1956) and cases cited, cert, denied, sub. 
nom. Casey v. Plummer, 353 U.S. 924 (1957).

II
The decisions of this court are divided on the question 

of whether appellants have standing to represent not only 
themselves but the class of all Negroes similarly situated. 
Fed. K. Civ. P. 23(a). Compare Shuttlesworth v. Gaylord, 
202 F. Supp 59, 62 (N.D. Ala. 1961), aff’d sub nom. Hanes 
Shuttlesworth, 310 F. 2d 303 (5th Cir. 1962), and Berring­
ton v. Plummer, 240 F. 2d 922 (5th Cir. 1956), cert, denied, 
sub nom. Casey v. Plummer, 353 U.S. 924 (1957), with 
Clark v. Thompson, 313 F. 2d 637 (5th Cir. 1963). The 
remand by the Supreme Court in the present case would 
seem to indicate an affirmative answer. The Court specif­
ically noted that this is a class action (369 U.S. at 32).



86

While it distinguished and denied appellants’ attempt to 
enjoin certain criminal prosecutions against members of 
a class of which appellants are not members (id. at 33- 
36)®, it cited Evers v. Dwyer, 358 U.S. 202 (1958), also a 
class action, in remanding the present claims for expeditious 
disposition. See also Turner v. City of Memphis, 369 U S 
350 (1962).

We find it unnecessary to determine, however, whether 
this action was properly brought under Rule 23(a), for 
whether or not appellants may properly represent all 
Negroes similarly situated, the decree to which they are 
entitled is the same. Appellants do not seek the right 
to use those parts of segregated facilities that have been 
set aside for use by “ whites only.”  They seek the right 
to use facilities which have been desegregated, that is, which 
are open to all persons, appellants and others, without re­
gard to race. The very nature of the rights appellants seek 
to vindicate requires that the decree run to the benefit 
not only of appellants but also for all persons similarly 
situated.

In Potts v. Flax, 313 F. 2d 284, 289-90 (5th Cir. 1963), 
a school segregation case, this Court said:

“ There is at least considerable doubt that relief con­
fined to individual specified Negro children either could 
be granted or, if granted, could be so limited in its 
operative effect. By the very nature of the contro­
versy, the attack is on the unconstitutional practice 
of racial discrimination. Once that is found to exist, 
the Court must order that it be discontinued. Such a 
decree, of course, might name the successful plain­
tiff as the party not to be discriminated against. But 
that decree may not—either expressly or impliedly 
—affirmatively authorize continued discrimination by 
reason of race against others. Cf. Shelley v. Kraemer 
1948, 334 U.S. 1, 68 S. Ct. 836, 92 L. E d /1161. More­
over, to require a school system to admit the specific 
successful plaintiff Negro child while others, having 
no such protection, were required to attend schools

6 See note 4, supra,



87

in a racially segregated system, would be for the 
court to contribute actively to the class discrimination 
proscribed by Bush v. Orleans Parish School Board, 
5 Cir., 1962, 308 F. 2d 491, 499, on rehearing 308 F. 
2d 503; see also Boss v. Dyer, 5 Cir., 1962, 312 F. 2d 
191. The effect of this last consideration is to afford 
additional basis for affirmance. In this light, if it 
was an error to treat the case as a class suit and 
enter such a. decree, such error, if any, was harmless 
since the decree for all practical purposes would 
have been the same had it been confined to the Teal 
or Flax children.” 7

These principles are fully applicable here.8

I l l
There remains to be considered which defendants shall 

be enjoined.
To justify the issuance of an injunction against the At­

torney General, appellants refer to Patterson’s testimony 
herein that “ if conditions arise to such a point that I 
thought it was necessary to bring them into effect,”  he 
would enforce the Mississippi segregation laws. Those 
laws have now been declared unconstitutional, however, 
and we cannot assume that the highest legal officer of the 
state would nevertheless seek their enforcement. Under 
these circumstances, we cannot say that the denial of in­
junctive relief against the Attorney General constituted 
an abuse of discretion. Cf. Pope v. Ullman, 367 U.S. 497

7 In a footnote to its opinion, id. at 289, n. 5 the Court said:
“ [A ]s  we have recently pointed out, a school segregation suit presents 
more than a claim of invidious discrimination to individuals by reason 
of a universal policy of segregation. It involves a discrimination 
against a class as a class, and this is assuredly appropriate for class 
relief. Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F. 2d 
491, 499, modified on rehearing, 308 F. 2d 503. See also Ross v. Dyer, 
5 Cir., 1962, 312 F. 2d 191.”

s The cases relied on by the appellees, McCabe v. Atchison, T. & S.F. 
By., 235 U.S. 151 (1914) ; Brown v. Board of Trustees, 187 F. 2d 20 (5th 
Cir. 1951) ; and see note 4 supra, which denied class relief where plaintiffs 
were not members o f the class for which relief was sought, are obviously 
beside the point.



88

(1961); Massachusetts v. Mellon, 262 U.S. 447, 488 (1923).
As indicated above we directed in United States v.

City of Jackson, ------F. 2d------  (5th Cir. 1963) that an
injunction issue against the City, its Commissioners, and 
its Chief of Police, all of whom are appellees herein, en­
joining the maintenance of racial signs or “ otherwise 
seeking to enforce or encourage racial segregation in the 
use of the terminal facilities of the carriers.”  Although 
the injunction has not yet issued, we assume that persons 
using the carrier appellees’ terminals in the exercise of 
their federal rights will, by its terms, be protected against 
arrest, harassment, intimidation, threats, or coercion by 
the City, or its police or other officials. To that extent, the 
injunction prayed for is unnecessary. The mandate in 
United States v. City of Jackson, supra, does not relate, 
however, to persons using the facilities of the Jackson 
Municipal Airport Authority, or the buses of the bus com­
pany appellees. To this extent, we direct that the injunction 
against the City and appellees Thompson, Lucky, Marshall 
and Rayfield issue as prayed for.

An injunction shall issue as prayed for against all carrier 
appellees.9

As against Cicero Carr,10 it appears that further injunc­
tive relief is unnecessary, and the order of August 24, 1962, 
as affirmed.

Affirmed in part, reversed and remanded in part for the 
entry of judgment in accordance with this opinion.

C amekoxt, Circuit Judge, Dissenting:
With deference, I dissent from the majority opinion filed 

in this case.

9 At the appellate argument, appellants suggested that in addition to 
the relief prayed for, the decree should require that the waiting rooms 
formerly set aside for Negroes be closed. Alternatively, it may be appro­
priate to require appellees to post public signs to the effect that all facilities 
are now available to all passengers without regard to race. On the present 
record, however, we can express no opinion on the need for  such relief. 
The question is properly addressed to the sound discretion o f the district 
court.

10 See note 5 supra.



89

I
I would suggest at the outset that the majority is too 

much influenced by the decision of this Court in United 
States of America and Interstate Commerce Commission v. 
The City of Jackson and its Officers, May 13, 1963, 318 
F.2d 1. The specially concurring opinions of Judges Bootle 
and Ainsworth, in slip opinion of July 18, 1963, tend to limit 
the broad sweep of the original opinion. For example, 
in the opinion of Judge Bootle upon rehearing, concurring 
in the result, it is stated:

“ Upon a more careful study of the opinion in con­
nection with the motion for rehearing, and in view of 
the opinion’s extensive comment and broad treatment 
I have decided to restrict the scope of my concurrence 
. . . ”  Page 3 of the slip opinion,------F .2d-------

A good portion of the majority opinion in United States 
v. Jackson, supra, and particularly the “ extensive comment 
and broad treatment”  were devoted to dealing with con­
stitutional questions arising under the Fourteenth Amend­
ment and the Commerce Clause. As I understand these 
opinions, Judges Bootle and Ainsworth have withdrawn 
their concurrences in the portions of the majority opinion 
which rested upon constitutional grounds. This would, I 
assume, eliminate from the opinion in that case some parts 
which are quoted or relied upon by the majority in the 
instant case.

In my opinion, the case of Clark et al v. Thompson, Mayor, 
et a,l, U.S. D.C. Southern District of Miss., May 15, 1962, 
206 F.Supp. 539,11 is more nearly in point in our solution II

II Affirmed in a per curiam opinion by this Court March 6, 1963, where 
this Court sub nom Rev. L. A. Clark, et al v. Allen C. Thompson, Mayor, 
et al, 313 F.2d 637, said:

“ In this ease the appellants complain of the judgment of the trial 
court refusing to grant an injunction and denying relief sought by way 
o f declaratory judgment in an alleged class action in which it was 
claimed that they and others similarly situated were denied the use 
of public recreational facilities in the City of Jackson, Mississippi 
solely upon the grounds of race and color. Upon a careful review 
o f the record, we find ourselves in agreement with the conclusions



90

of the questions discussed in the majority opinion in the 
case now before us. Here, of course, the court below did 
enter a declaratory judgment establishing the rights of 
the parties, merely withholding injunctive relief and re­
taining jurisdiction for the granting thereof, if it should 
subsequently turn out to be necessary. What Judge Mize 
wrote in Clark v. Thompson, now approved by us by our 
affirmance of the case and citing the opinion in it as au­
thority, constitutes an excellent statement of the traditional 
view of the courts towards granting or denial of injunctions 
and, I think, gives us a good blueprint for action here:

“ This is not a proper class action, and no relief may 
be granted other than that to which the plaintiffs are 
personally entitled. Whether this is a proper class 
action involves a question of fact . . . The plaintiffs 
cannot make this a legitimate class action by merely 
calling it such. . . . The burden of proof on this issue 
was on the plaintiffs. . . . The plaintiffs failed to meet 
this burden. A  class action cannot be maintained where 
the interests of the plaintiffs are antagonistic to and 
not wholly compatible with the interests of those whom 
they purport to represent. . . . ”  206 F. Supp. 542.

We omitted from the foregoing quotation the authori­
ties cited. One of them, Troup v. McCart, 238 F.2d 289, 
expresses accurately the attitude of this Court in such 
matters, and clearly supports Judge Mize’s findings.

We quote further (pages 542-543):
“ Voluntary segregation does not violate the Consti­

tution of the United States which does not prohibit 
a municipality from permitting, authorizing or en­
couraging voluntary segregation. . . . [Citing a half 
column of cases.]

“ A desire for a sweeping injunction cannot relieve 
plaintiffs of the obligation to comply with the general 
rule that they must present facts sufficient to show

reached by the trial court. Brown v. Board of Trustees of LaGrange 
Independent School District, 5 Cir., 1951, 187 F.2d 20; Clark et al 
v. Thompson et al, D.C., 206 F.Snpp. 539.”



91

that their individual needs require injunctive re­
lief. . . .

“ The Supreme Court of the United States, in the 
case of Bailey et al v. Patterson et al, 369 U.S. 31, 
82 S.Ct 549, 7 L.Ed2d 512, held that the issuance of 
an injunction was an extraordinary and unusual 
writ. This, of course, does not announce any new 
law. The granting of an injunction is discretionary 
and dependent upon the facts of each case. It should 
be granted with great caution, care and deliberation 
on the part of the trier of the facts, and the power 
to issue injunctions should not be lightly indulged 
in, but exercised sparingly, after thoughtful delibera­
tion and the presence of an urgent necessity. See 
28 American Jurisprudence, Injunctions, Section 25, 
p. 515. Quoting briefly from that authority, it lays 
down the rule as follows:

“  ‘ The relief should be awarded only in clear cases, 
reasonably free from doubt, and when necessary to 
prevent great and irreparable injury.’ . . .

“ The individual defendants in this case are all 
outstanding, high class gentlemen and in my opinion 
will not violate the terms of the declaratory judg­
ment issued herein. They known now what the law 
is and what their obligations are, and I am definitely 
of the opinion that they will conform to the ruling 
of this Court without being coerced so to do by an 
injunction. The City of Jackson, a municipality, of 
course is operated by some of these high class citizens. 
I am further of the opinion that during this period 
of turmoil the time now has arrived when the judiciary 
should not issue injunctions perfunctorily, but should 
place trust in men of high character that they will 
obey the mandate of the Court without an injunction 
hanging over their heads.

“ Neither the facts in the present case nor the 
exigencies of the situation are sufficient or urgent 
enough to require the granting of an injunction. . . . ”



92

II
In the action taken by Judge Mize in the Clark case and 

in the language he used, the highest traditions of equity 
were, in my opinion, exemplified. Obedience of the law 
and of the will of the Court were accomplished without 
needless harassment, without classifying the defendants 
as persons who would not obey the law unless forced to 
do so. A judge in a criminal case exercises the same wise 
discretion when, the facts justifying, he defers sentence 
upon one charged with having transgressed the law.

We have a like situation before us here. There are no 
citizens anywhere, including the individuals and the cor­
porations, of greater integrity or dependability. The 
Judge who tried this case labored over it a long time 
and on many different occasions. After he had made his 
findings of fact and conclusions of law, he permitted the 
appellants to reopen the case as many times as they desired 
to raise questions of law and to supplement the facts by 
affidavit or other means of proof. He modified his findings 
and conclusions on more than one occasion. These sup­
plementary proceedings occupy one whole volume of the 
record. Counsel were given full opportunity to differ­
entiate and discuss all of the recent holdings of the Supreme 
Court.

As an illustration, one party argued that the language 
of the Supreme Court in its decision of this (Bailey v. Pat­
terson) case, quoted from by the majority opinion, indi­
cated inferentially the attitude of the Supreme Court as 
favoring what the majority has now decided. The other 
party was heard to take the attitude illustrated by this 
quotation from the supplemental hearing:

“ In this case, the Court [Supreme] said this: 
‘ . . . remand the case for expeditious disposition in 
the light of this opinion of appellant’s claims of 
rights to unsegregated transportation service.’ Com­
pare that with the language of the remand in the 
Turner v. Memphis case. There the Supreme Court 
said ‘ The case is remanded to the District Court 
with directions to enter a decree granting appropriate



93

injunctive relief against the discrimination complained 
of.’ ”

The trial court manifestly thought, from everything that 
transpired in court, from the demeanor of counsel and 
of the parties, that the appellees were merely urging upon 
it legitimate contentions as to the law and the fact; and, 
after all of the voluminous arguments, it entered this 
decree:

It Is Ordered, A d j u d g e d  and  D eclared as fo llow s , 
t o -w it :

“ (a) That each of the three plaintiffs has a right 
to unsegregated service from the restaurant at the 
airport.

“ (b) That defendant, Cicero Carr, should not have 
any interest in or control over the restaurant facili­
ties and the Jackson Airport in the future and should 
not be employed in any capacity in the operation 
of said facilities.

“ (c) That the plaintiffs are not now entitled to any 
injunctive relief, but jurisdiction over this action 
and each of the defendants is hereby retained for 
the entry of such further orders and relief as may 
be subsequently appropriate. . . . ”

The trial court entered this order after finding’ cate­
gorically and in detail that everything complained of by 
the appellants had been corrected and that “ there will be 
no re-occurrence of same,”  that the parties had been fully 
advised what the law required of them and that an injunc­
tion was unnecessary.

I ll
This action of the court below comes to us, I submit, 

with an unusual presumption of correctness and an unusual 
call upon us to sustain the trial court’s findings, conclu­
sions and orders. Certainly the appellees had a right to 
contest all of the claims made by the appellants and to 
present their views fully and with all proper vigor. The



94

appellants won their case and the appellees were taxed 
with costs in the court below. Their rights have been 
declared. The choice of means by which the court’s will 
should be enforced belonged, under our system, in the 
trial judge. He it is who knows local conditions and who 
must live with and enforce the law as he has declared it.

Something is said in the majority opinion about our 
knowing certain things judicially. Certainly we do not 
know them as well as does the judge below who has spent 
all of his days in the State of Mississippi and in close 
contact with the problems presented in this case. Should 
compliance with the law as it has been declared be en­
forced by the methods chosen by the District Courts or 
by more drastic methods which we might have invoked if 
we had been sitting in his place? For my part, I think 
the answer to that is clear. I would support the judge 
in the field who knows the facts and knows best how obedi­
ence to the law and the mandate of the court can be ac­
complished. I think the law requires us, under the facts 
of this case, to support and affirm the action of the lower 
court.

Judge Gewin has stated much better than I can, the 
attitude I think we, as an appellate court, should take in 
this case. The problems before the Court were much 
like those facing us here; and I adopt what he said in his 
dissenting opinion in No. 20501, W. G. Anderson et al v. 
City of Albany et al, July 26, 1963,------F .2d------- .

I respectfully dissent.
A true copy
Test: E dwakd W. W ad sw o rth ,

Clerk, U. S. Court of Appeals, Fifth Circuit.
By C lara E. J am e s ,

Deputy.

New Orleans, Louisiana, November 29, 1963.



95

U nited  S tates  C ourt of A ppeals for th e  F if t h  C ircu it  

October Term, 1962 
No. 20,372

D. C. Docket No. 3133 Civil 
S a m u e l  B aile y , et a l ., Appellants, 

versus
J oe T. P atterson , A ttorney  G en eral  of t h e  S tate  of 

M ississippi, et  a l ., Appellees.

Appeal from the United States District Court for the 
Southern District of Mississippi

Before C am ero n , W isdom  and  H ays ,* Circuit Judges.

J u d g m e n t

This cause came on to be heard on the transcript of the 
record from the United States District Court for the South­
ern District of Mississippi, and was argued by counsel;

O n  C o n s i d e r a t i o n  W h e r e o f , It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be, and the same is hereby, af­
firmed in part and reversed in part in accordance with 
the opinion of this Court, and that this cause be, and it is 
hereby, remanded in part to the said District Court for 
the entry of judgment in accordance with said opinion;

It is further ordered and adjudged that the appellees, 
City of Jackson, Thompson, Lucky, Marshall and Rayfield, 
and the carrier appellees, be condemned, in solido, to pay 
the costs of this cause in this Court for which execution 
may be issued out of the said District Court.
“ Cameron, Circuit Judge, Dissents”

September 24, 1963.
Issued as Mandate:

* Of the Second Circuit, sitting by designation.

APPENDIX “ L”



96

IT. S. Court of Appeals Filed Nov. 8, 1963. Edward W. 
Wadsworth, Clerk

(614) Ik t h e  U kxted S tates C ourt  oe A ppeals  for th e  

F if t h  C ir cu it

No. 20372

S a m u e l  B a ile y , e t  a l , Appellant, 
v.

J oe T. P attersok , A ttorh ey  G-e k e r a l  of t h e  S tate  of 
M ississippi, e t  a l , Appellee.

Appeal from the United States District Court for the South­
ern District of Mississippi

(Nov. 8, 1963)

O k  P etitio k  for E eh earikg  

Before C a m e r o k , W isdom  and H ay s ,* Circuit Judges.

P er C u r iam  :

It is ordered that the petition for rehearing in the above 
entitled and numbered cause is hereby d ekied .

APPENDIX “ M”

Of the Second Circuit, sitting by designation.



97

U nited  S tates C ourt of A ppeals foe th e  F if t h  C iecuit

No. 20372

S a m u e l  B ailey , et  al , Appellant, 
versus

J oe T. P atterson , A ttoeney  G en eral  of th e  S tate  of 
M ississippi, et  al , Appellee.

On C onsideration  of th e  A pplication  of the Appellees 
in the above numbered and entitled cause for a stay of the 
mandate of this Court therein, to enable Appellees to apply 
for and to obtain a writ of certiorari from the Supreme 
Court of the United States, it  is ordered that the issue of 
the mandate of this Court in said cause be and the same is 
stayed for a period of 60 days; the stay to continue in force 
until the final disposition of the case by the Supreme Court, 
provided that within 60 days from the date of this order 
there shall be filed with the clerk of this Court the certifi­
cate of the clerk of the Supreme Court that certiorari peti­
tion and record have been filed. It is further ordered that 
the clerk shall issue the mandate upon the filing of a copy 
of an order of the Supreme Court denying the writ, or 
upon the expiration of 60 days from the date of this order, 
unless the above mentioned certificate shall be filed with 
the clerk of this Court within that time.

D one at  N ew  Orleans, L a ., T h is  15th day of November, 
1963.

/ s /  P a u l  R . H ays ,
United States Circuit Judge.

(O rig in al  F iled—November 18, 1963.)

APPENDIX “ N”



98

S egregation S tatu tes  oe M ississippi

§2351. Railroads—not providing separate cars.

If any person or corporation operating a railroad shall 
fail to provide two or more passenger cars for each pas­
senger 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 pas­
senger conductor shall fail to assign each passenger to 
the car or compartment of the car used for the race to 
which the passenger1 belongs, he or it shall be guilty of 
a misdemeanor, and, on conviction shall be fined not less 
than twenty dollars nor more than five hundred dollars.

[2351.5 Railroads and other carriers to provide separate 
toilet facilities for the races traveling in intra­
state travel.

Every railroad company, bus company or other common 
carrier for hire owning, maintaining or operating a pas­
senger depot, bus station or terminal where a waiting 
room for passengers is maintained and operated 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 intra­
state travel-”  and likewise two closets or retiring or rest 
rooms shall be constructed and maintained for colored pas­
sengers 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 
operator 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

APPENDIX “ 0 ”



99

the colored closets or rest rooms required by this act, 
and no colored person shall enter, frequent, occupy or 
use the white closets or rest rooms required by this act, 
except, however, regularly employed persons of the owner 
or operator of the passenger depots, bus stations or termi­
nals 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 more than one year, or both.

§2351.7 Persons traveling in intrastate travel by carrier 
required to use waiting room designated for 
their race—penalty for violation.

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 mis­
demeanor and upon conviction thereof shall be fined not 
more than one thousand dollars ($1,000.00) and impris­
oned in jail not more than sixty (60) days, or both such 
fine and imprisonment.

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 person 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 terminals 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 dollars ($1,000.00) 
and imprisonment in jail for not more than one year, 
or both.

3. No action or suit in law or in equity may be brought



100

in any court of this state against any law enforcement 
officer for damages for false arrest of any passenger be­
cause of a violation of this act, nor shall any common 
carrier or passengers, or its employees 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.

§7784. Equal but separate accommodations for the races.
Every railroad carrying passengers in this state shall 

provide equal but separate accommodations for 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 con­
ductor, the conductor shall have power to refuse to carry 
such passenger on the train, and for such refusal neither 
he nor the railroad company shall be liable for damages in 
any court.

§7786. Passengers required to occupy compartments to 
which they are assigned.

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 re­
quired to assign each passenger to the space or compart­
ment 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 con­
viction, shall be liable to a fine of twenty-five dollars 
($25.00) or, in lieu thereof, by imprisonment for a period



101

of not more than thirty (30) days in the county jail; and 
any operator of any street car or street bus or motor vehi­
cle as herein defined, assigning or placing a passenger 
to the space or compartment other than the one set aside 
for the race to which said passenger belongs 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, to 
imprisonment for a period of not more than thirty (30) 
days in the county jail.

§7786-01. Penalty for violation.
Every person or corporation operating street railways 

and street or municipal buses, carrying passengers 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 provi­
sions of this act shall be liable to a fine of twenty-five dol­
lars ($25.00) for each offense, and each day’s violation 
of the provision hereof shall constitute a separate violation 
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) in­
stead of twenty-five dollars ($25.00).



102

A n  Ord inance  R equiring  C om m o n  C arriers of P ersons to 
M a in t a in  in  t h e  C it y  of J ackson  S eparate W aitin g  
R oom and  R est R oom A ccom m odations and  F ac ilities  for 
t h e  W h it e  an d  C olored R a c e s ; M a k in g  it  U n l a w f u l  
for a n y  P erson of t h e  W h ite  R ace to U se S u c h  A c­
com m odations  and  F ac ilities  D esignated  and  S et  A part  
for P ersons of t h e  C olored R aces ; M a k in g  It U n l a w f u l  
for A n y  P erson  of t h e  C olored R aces to U se S u c h  A c­
com m odations  an d  F ac ilities  D esignated  and  S et A part 
for P ersons of th e  W h it e  R a c e ; P rescribing  P en alty  
for V iolation  H ereof ; an d  M ak in g  T h is  Ordinance  Im­
m ed iately  E ffective .

W h ereas , 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 wait­
ing room and rest room facilities and accommodations pro­
vided by common carriers of persons; and

W hereas , a sudden intermingling of the races necessarily 
involved in the common use of such waiting room and rest 
room accommodations and facilities would likely result in 
disturbances, breaches of the peace, disorder and confusion; 
and

W h ereas , 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 purposes;

Now, T h erefore , Be It O rdained  by  t h e  C o u n c il  of th e  
C it y  of J ac k so n , M is s is s ip p i:

S ection  1. That all common carriers of persons which 
have heretofore provided and maintained separate waiting 
rooms, rest rooms and like accommodations and facilities 
be and they are hereby required to continue to maintain 
similar but separate waiting rooms, rest rooms and like ac­
commodations and facilities for the White and for the Col­

APPENDIX “ P”



103

ored 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 race only.

S ection  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.

S ection  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.

S ection  4. That, any person convicted of a violation of 
this ordinance shall be guilty of a misdemeanor and shall 
be punished by a tine 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.

S ection  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, 
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 p p r o v e d :

A ttest :

A llen  C. T h om pso n ,
Mayor.

C. W. A lexander ,
Commissioner.

D. L . L u c k e y ,
Commissioner.

M rs. J. R. S k in n e r ,
City Cleric, (S eal .)

I, Mrs. J. R. Skinner, the duly appointed, qualified and 
acting City Clerk and lawful custodian of the minutes of the



104

Council and seal of said city, certify that the foregoing 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.

W itness  my signature and official seal of office, this 12th 
day of January, 1956.

E x h ib it  P l a in t iff s  31.

W itn ess ,

( S ea l . )

M rs. J. E. S k in n e r ,
City Clerk.

September 26, 1961.



105

B r e a c h  o f  t h e  P e a c e  S t a t u t e s  o f  t h e  S t a t e  o f  M i s s i s s i p p i

§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, restau­
rant, 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 public build­
ing, 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 ges­
tures, or uses profane language, or physical acts, or in­
decent proposals to or toward another or others, or 
disturbs or obstructs or interferes ivith 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 of charge, causes a disturbance or does or 
says, respectively, any of the matters or things men­
tioned in subsection (2) supra, to, toward, or in the 
presence of any other passenger on said vehicle, or any 
person outside of said vehicle or in the process of

APPENDIX “ Q”



106

boarding or departing from said vehicle, or any em­
ployee engaged in and about the operation of such 
vehicle, or
(4) refusing to leave the premises of another when 
requested so to do by any owner, lessee, or any em­
ployee thereof,

shall be guilty of disorderly conduct, which is made a mis­
demeanor, 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 conduct 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 persons shall be maimed, killed or injured, then the 
person 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.

2. The provisions of this act are supplementary to the 
provisions of any other statute of this state.

3. If any paragraph, sentence, or clause of this act shall 
be held to be unconstitutional or invalid, the same shall not 
affect any other part, portion or provision of this act, but 
such other part shall remain in full force and effect.

§2087.7. Disorderly conduct—interference with business, 
customers, invitees, etc.

1. It shall be unlawful for any person or persons, while 
in or on the premises of another, whether that of an in­
dividual person, or a corporation, or a partnership, or an 
association, and on which property any store, restaurant, 
sandwich shop, hotel, motel, lunch counter, bowling alley, 
moving picture theatre or drive-in theatre, barber shop or 
beauty parlor, or any other lawful business is operated 
which engages in selling articles of merchandise or services 
or accommodation to members of the public, or engages



107

generally in business transactions with members of the pub­
lic, to:

(1) prevent or seek to prevent, or interfere with, the 
owner or operator of such place of business, or his 
agents or employees, serving or selling food and drink, 
or either, or rendering service or accommodation, or 
selling to or showing merchandise to, or otherwise pur­
suing his lawful occupation or business with, customers 
or prospective customers, or other members of the 
public who may then be in such building, or
(2) prevent or seek to prevent, or interfere with, or 
seek to interfere with, other persons, expressly or im­
pliedly invited upon said premises, or prospective cus­
tomers, coming into or frequenting such premises in 
the normal course of the operation of the business con­
ducted and carried on upon said premises,

shall be guilty of disorderly conduct, a misdemeanor, and 
upon conviction thereof, shall be punished by a fine of not 
more than five hundred dollars ($500.00), or by imprison­
ment in the county jail for not more than six (6) months, 
or by both such fine and imprisonment.

2. The provisions of this act are supplementary to the 
provisions of any other statute of this state.

3. If any paragraph, sentence, or clause of this act shall 
be held to be unconstitutional, or invalid, the same shall 
not affect any other part, portion or provision thereof, but 
such other part shall remain in full force and effect. 
§2089.5 Disturbance of the public peace, or the peace of

others.
1. Any person who disturbs the public peace, or the 

peace of others, by violent, or loud, or insulting, or pro­
fane, or indecent, or offensive, or boisterous conduct or 
language, or by intimidation, or seeking to intimidate any 
other person or persons, or by conduct either calculated 
to provoked a breach of the peace, or by conduct which 
may lead to a breach of the peace, or by any other act, 
shall be guilty of a misdemeanor, and upon conviction 
thereof, shall be punished by a fine of not more than five



108

hundred dollars ($500.00), or by imprisonment in the 
county jail not more than six (6) months, or both.

2. The provisions of this act are supplementary to the 
provisions of any other statute of this state.

3. If any paragraph, sentence or clause of this act shall 
be held to be unconstitutional or invalid, the same shall not 
affect any other part, portion or provision thereof, but 
such other part shall remain in full force and effect.



109

M i s s i s s i p p i  S t a t u t e s  R e : M u n i c i p a l  A i r p o r t  A u t h o r i t y

“ §7545-32. Creation of municipal airport authority.
Any municipality may, by resolution, create a public 

body corporate and politic to be known as a municipal 
airport authority, which shall be authorized to exercise its 
functions upon the appointment and qualification of the 
first commissioners thereof. Upon the adoption of a reso­
lution creating a municipal airport authority, the governing 
body of the municipality shall, pursuant to the resolution, 
appoint five (5) persons as commissioners of the au­
thority. . . . ”

‘ ‘ §7545-36. Commissioners—compensation—meetings—offi­
cers.

The powers of each authority shall be vested in the com­
missioners thereof. A majority of the commissioners of 
an authority shall constitute a quorum for the purpose of 
conducting the business of the authority and exercising its 
powers and for all other purposes. Action may be taken 
by the authority upon a vote of not less than a majority 
of the commissioners present. . . . ”

§7545-37. General powers of an authority.
An authority shall have all the powers necessary or 

convenient to carry out the purposes of this act (excluding 
the power to levy and collect taxes or special assessments) 
including, hut not limited to, the power:

(a) To sue and be sued, to have a seal, and to have 
perpetual succession;

(b) To execute such contracts and other instruments 
and take such other action as may be necessary or con­
venient to carry out the purposes of this act;

(c) To plan, establish, develop, construct, enlarge, im­
prove, maintain, equip, operate, regulate, and protect air­
ports and air navigation facilities, within this state and

APPENDIX “ R”



n o
within any adjoining state, including the acquisition, con­
struction, installation, equipment, maintenance, and opera­
tion of such airports or buildings and other facilities for 
the servicing of aircraft or for the comfort and accommo­
dation of air travelers, and the direct purchase and sale 
of supplies, goods, and commodities as are incident to the 
operation of its airport properties, without having to make 
purchases thereof through the municipal governing au­
thorities. For such purposes an authority may, by pur­
chase, gift, devise, lease, eminent domain proceedings or 
otherwise, acquire property, real or personal, or any in­
terest therein, including easements in airport hazards or 
land outside the boundaries of an airport or airport site, 
as are necessary to permit the removal, elimination, ob­
struction-marking, or obstruction-lighting of airport haz­
ards or to prevent the establishment of airport hazards___”

(9488-8)