City of Hartford v. Town of Glastonbury Supplemental Brief of Plaintiffs-Appellees on Rehearing En Banc

    ] ): W I S  V.  1 I L M 1 N G T Q M  
SCHOOL BIST-

HARRIS V. ST. LOUIS

SIMM O H S V . BOAR D 
OF M U SKOGEE

humharbt y. 
LOFTON















E dward Meade

vs.

M. E stelle D ennistone and 
Mary J. B ecker.

I n  T he

Court of Appeals
Of M arylan d .

October T erm, 1937.

General D ocket No. 26.

APPELLANT’S BRIEF.

W. A. C. HUGHES, JR.,
Solicitor for Appellant.

The Daily Record Co. Print, Baltimore.





E dward Meade

vs.

I n  T he

Court of Appeals
Of Maryland.

M. E stelle D ennistone and 
Mary J. B ecker.

October T erm, 1937.

General D ocket No. 26.

APPELLANT’S BRIEF.

STATEMENT OF THE CASE.
The record presents an appeal from a final decree 

passed by the Circuit Court of Baltimore City, granting 
a permanent injunction, restraining the Appellant Meade, 
his heirs and assigns, from using or occupying premises 
No. 2227 Barclay Street and perpetually enjoining and 
restraining him, or any one on his behalf, from procuring, 
authorizing or permitting any Negro or persons of Negro 
or African descent to use or occupy No. 2227 Barclay 
Street.

QUESTIONS IN CONTROVERSY.
Question / .

Does enforcement of a neighborhood covenant forbid­
ding the use or occupancy of a house by Negroes or per­
sons of African descent violate the Fourteenth Amend­
ment to the Constitution of the United States?

The Court below held it does not.

The Appellant contends that it does.



2

Question II.

Is the covenant contrary to public policy and therefore 
unenforceable?

The Court below held that it is not.

The Appellant contends that it is.

Question III.

Does this covenant run with the land so as to bind the 
Appellant Meade, or is it merely a personal covenant, 
binding only upon the contracting parties?

The Court below held that the covenant runs with the 
land.

The Appellant contends it is merely a personal cove­
nant.

STATEMENT OF THE FACTS.
On November 14, 1927, No. 2227 Barclay Street, a resi­

dence property in Baltimore City, was owned, as tenants 
in common, by Anna M. Tighe, Francis L. Tighe, Mary V. 
Tighe and Anna R. Gugerty, (hereinafter called the 
Tighes), all of whom signed the covenant hereinafter re­
ferred to. The Tighes conveyed the property to Florus 
Barry, who then conveyed it to Mary Y. Tighe and Anna 
R. Gugerty, from whom Frank Berman purchased the 
property (R. pp. 10, 14, 15). On October 22, 1936, 
Frank Berman sold the property in question to the Ap­
pellant Meade, a Negro, for a consideration of $1,100.00, 
of which $150.00 was paid in cash, balance to be paid 
monthly, on conditional sales agreement (R. p. 10). 
Meade moved into possession and occupied the property 
prior to the filing of the Bill of Complaint.

On January 27, 1928, there was recorded among the 
land records of Baltimore City, a covenant signed by



3

eighteen (18) property owners in the twenty-two hun­
dred block of Barclay Street. The Tighes were among 
these signers. Each of these signers covenanted for 
himself, his heirs, successors and assigns, “ That neither 
the said respective properties nor any of them nor any 
part of them or any of them shall be at any time occupied 
or used by any Negro or Negroes or person or persons 
either in whole or in part, of Negro descent or African 
descent except only that Negro or persons of Negro or 
African descent either in whole or in part may be em­
ployed as servants * # * nor shall any sale, lease, dis­
position or transfer thereof be made or operate otherwise 
than subject to the aforesaid restrictions as to and upon 
use or occupancy * * * shall run with and bind the land 
and each and all of the above mentioned properties and 
premises and every part thereof * * * but no owners 
or occupant is to be responsible except for his, her or its 
acts or defaults while owner or occupant * * *”  (R. pp. 
11, 12, 13).

There are twenty-nine properties in the block in ques­
tion and the owners of 11 properties refused to sign this 
restrictive covenant. One colored family owns and lives 
in 2238 Barclay Street at the present time.

The agreement dated on November 14, 1927, was pro­
posed as a result of a meeting of the property owners in 
an area of twenty-four square blocks bounded on the 
north and south by Twenty-fifth Street and North Ave­
nue and on the east and west by Barclay and Charles 
Streets. Some time before the meeting, a colored family 
moved into the 2300 block of Guilford Avenue, and at the 
time of the meeting there were rumors that a colored 
family was to occupy one of the vacant houses on Barclay 
Street. Twenty-third Street from Guilford Avenue and



4

G-reenmount Avenue, Twenty-second and a half Street, 
and most of Twenty-fourth Street are occupied by col­
ored people. All of these are cross streets and Twenty- 
second and a half Street is an alley. Twenty-third Street 
and Twenty-second and a half Street have been colored 
since the War. The twenty-three hundred block of Guil­
ford Aveue is occupied by colored people. Brentwood 
Avenue, a narrow street, running from North Avenue 
to Twenty-fifth Street, between Barclay Street and 
Greenmount Avenue, is also occupied by colored people. 
There are two (2) colored churches on Twenty-third 
Street near Barclay (R. p. 15).

Mary J. Becker, one of the Complainants, testified that 
when she signed the restrictive covenant, it was with 
the understanding that the whole area, comprising twen­
ty-four blocks, was to be restricted and had she known 
the whole area would not be restricted, she would not have 
signed the agreement (R. pp. 16, 19, 20). She further 
testified she did not own the ground her house was built 
on and that the owner of the ground did not sign the 
agreement (R. p. 17). Mrs. Becker testified that none of 
the signatories to this agreement had any financial or 
property interest in her house and she had none in theirs 
(R. p. 18). The house next door to Mrs. Becker, No. 2236, 
has no restrictions on it.

M. Estelle Dennistone, the other Complainant, testified 
that she understood all of the property owners would sign 
the agreement and she did not know all had not signed, 
but that she would have signed the agreement irrespec­
tive of this (R. p. 20). Mrs. Dennistone owns No. 2221 
Barclay Street. The property next door to her is not 
subject to this agreement (R. p. 21).



5

ARGUMENT
QUESTION NO. I.

ENFORCEMENT OF A RESTRICTIVE COVENANT IN WHICH 
PEOPLE IN A NEIGHBORHOOD MUTUALLY AGREE THAT 
THEIR RESPECTIVE PROPERTIES SHALL NEVER BE USED OR 
OCCUPIED BY NEGROES OR PERSONS OF AFRICAN DESCENT, 
EXCEPT AS SERVANTS, AND THAT ANY SALE, LEASE OR DIS­
POSITION OF THE PROPERTY SHALL BE SUBJECT TO SUCH 
RESTRICTIONS, VIOLATES THE 14TH AMENDMENT TO THE 
CONSTITUTION OF THE UNITED STATES AND THE UNITED 
STATES STATUTES.

The decision of the Supreme Court in Buchanan vs. 
Warley would seem to have settled the question of segre­
gated housing for all time. In a lengthy opinion, the 
Court plainly held that the Fourteenth Amendment was 
intended to guarantee to white and colored persons alike, 
the right to buy, sell and occupy real property without 
restriction based exclusively upon color.

Buchanan vs. Warley, 245 U. S. 60.

But that which was determined impossible of accom­
plishment by Federal or State action now sought a new 
method of evasion. Groups of people entered into mu­
tual covenants not to dispose of their property to Ne­
groes. A majority of the Courts of this country have 
held that restraints upon alienation of property to Ne­
groes are unenforceable because they are against public 
policy. In the instant case, the restraint is upon occu­
pancy, not alienation. The right of Negroes to acquire 
property is assured and no longer subject to question. 
Section 1978 (8 U. S. C. A. 41, 42) passed pursuant to 
the Fourteenth Amendment, reads as follows:

“ All, citizens of the United States shall have the 
same right, in every State and Territory, as is en



6

joyed by white citizens thereof, to inherit, purchase, 
lease, sell, hold and convey real and personal prop­
erty.”

The right to use or occupy property is an inseparable 
concomitant of ownership and equally protected.

“ Property is more than the mere thing which a 
person owns. It is elementary that it includes the 
right to acquire, use and dispose of it. The constitu­
tion protects these essential attributes of property.”  

Buchanan vs. Warley, supra.
Holden vs. Hardy, 169 U. S. 366, 391.

The Court pointed out that:
‘ ‘ Colored persons are citizens of the United States 

and have the right to purchase property and enjoy 
and use the same without Laws discriminating 
against them on account of color.”  (Italics mine.) 

Buchanan vs. Warley, 245 U. S. 60, 78.

Undoubtedly, the Fourteenth Amendment and the stat­
utes passed subsequent thereto, relate only to action by 
the State and not to action by individuals. But State 
action includes judicial as well as legislative and execu­
tive action.

“ They have reference to actions of the political 
body denominated a State, by whatever instruments 
or in whatever modes that action may be taken. A 
State acts by its legislative, its executive or its judi­
cial authorities. It can act in no other way. The 
constitutional provision, therefore, must mean that 
no agency of the States, or of the officers or agents 
by whom its powers are exerted, shall deny to any 
person within its jurisdiction, the equal protection 
of the laws. Whoever, by virtue of public position 
under a state government; deprives another of prop­
erty, life or liberty, without due process of law, or



7

denies or takes away the equal protection of the 
laws, violates the constitutional inhibition; and as he 
acts in the name for the State, and is clothed with the 
State’s power, his act is that of the State.”  (Italics 
mine.)

Ex parte Virginia, 100 U. S. 34.
See also:

Scott vs. McNeal, 154 V. S. 34.
Chicago, Burlington ancl Quincy R. R. vs. Chi­

cago, 166 U. S. 226, 233.
U. S. vs. Harris, 106 U. S. 629, 639.

If the State legislature is powerless to pass-a law re­
straining occupancy of certain property by Negroes, then 
the State judiciary is likewise powerless to permit what 
the Constitution forbids any State department to do. Mr. 
Justice W h it e  said:

“  # * * how can it be said that the judicial depart­
ment, the source and fountain of justice itself, has 
yet the authority to render lawful, that which if done 
under express legislative sanction would be violative 
of the Constitution? If such power obtains, then the 
judicial department of the government sitting to up­
hold and enforce the Constitution is the only one pos­
sessing a power to disregard it. If such authority 
exists, then in consequence of their establishment, 
to compel obedience to law and to enforce justice, 
courts possess the right to inflict the very wrongs 
which they were created to protect.”

Hove.y vs. Elliott, 167 U. 8. 409, 417.

In a covenant not to lease to Chinese persons, a case 
very similar to the instant case, it was said:

“ It would be a very narrow construction of the 
constitutional admendment in question and of the de­
cisions based upon it, and a very restricted applica­
tion of the broad principles upon which both the 
amendment and the decisions proceed, to hold that,



8

while the State and municipal legislatures are for­
bidden to discriminate against the Chinese, in their 
legislation,, a citizen of the State may lawfully do so 
by contract, which the courts may enforce. Such a 
view is, I think, entirely inadmissible. And result 
inhibited by the Constitution can no more be accom­
plished by contract of individual citizens than by 
legislation, and the Court should no more enforce 
the one than the other. This would seem to be very 
clear.”

Gandolfo vs. Hartman, 49 Fed. 181,182.

It is submitted that to lend judicial recognition to the 
covenant in this case would violate the Constitutions of 
the United States and of Maryland in their entirety, in­
cluding the letter and spirit and the fundamental plan 
thereof, whereby the legislative, executive and judicial 
branches of the government, both State and Federal, were 
made and intended to be co-ordinate and of co-equal dig­
nity and power, each in its own sphere.

The decision in the case of Corrigan vs. Bulkley, 271 
U. S. 323, does not preclude a decision'by this Court con­
sonant with the argument heretofore advanced because 
the argument that enforcement of the covenant consti­
tuted State action in violation of the Fourteenth Amend­
ment, was not raised in the petition for appeal or by as­
signment of error and hence was not properly before the 
Court for decision. Therefore, any discussion of this 
point was merely dictum. The case was “ dismissed”  
for want of jurisdiction.

It might be added that the District of Columbia is not a 
State and the Supreme Court of the District of Columbia 
was not acting as a State agency, therefore, the Four­
teenth Amendment was not applicable to the Corrigan 
case.



9

QUESTION NO. II.
THE COVENANT IS CONTRARY TO PUBLIC POLICY AND 

THEREFORE UNENFORCEABLE.

Housing has until recent years been a private problem. 
During the past three years there has developed a public 
conscience that accepts the obligation of attempting to 
house the poor in conformity with a minimum standard 
of decency, comfort and convenience. Proper housing 
has become a City, State and National problem. The 
Home Owners Loan Corporation, the Wagner-Ellenbo- 
gen Housing Bill, the housing projects of the Public 
Works Administration and the Resettlement Administra­
tion, the Federal Housing Administration are all indica­
tive of the trend of modern thought upon the question of 
housing. In addition to adoption of the aforementioned 
projects, the City of Baltimore has undertaken slum 
clearance projects and pursuant thereto, razed what was 
formerly known as the “ lung block”  and erected upon 
that site, a beautiful school. These undertakings illus­
trate clearly that housing has become a public policy of 
this State and Nation.

The Appellant Meade purchased a home compatible 
to his means and station in life but after purchasing the 
home he found himself in the analamous position of own­
ing a home in which he cannot live, unless this Court re­
verses the decision of the Circuit Court of Baltimore. 
Carried to its logical conclusion, this means, under the 
decision of the lower Court, that if white property owners 
throughout the City of Baltimore unite in similar cove­
nants, probably 90 per cent of the homes are close to oc­
cupancy by Rev. Meade. Since it is a well-known fact 
that housing conditions among the Negro populations 
are the poorest in the City 145,000 Negroes could not hope



10

to improve their housing to any appreciable extent with­
in the limits of Baltimore City.

“ It means for them living in one room or even 
part of a room, the indecencies and the health men­
aces of inadequate or non-existent sanitary conveni­
ences, an environment that is depressing and degrad­
ing, conducive to immorality, stifling to self-respect 
and incentive to crime.

Health Department, Police Department, Fire De­
partment, Juvenile Court, social agency records es­
tablish that where housing accommodations are sub­
standard these conditions are found:

Tuberculosis is most prevalent and most deadly.
Illegitimate children are most numerous.
Syphilis takes its heaviest toll.
Crime recruits the greatest number of its practi­

tioners.
Delinquency among children reaches its highest 

peak.
Infant mortality is highest.
The death rate for all ages is highest.
Residence fires and fatalities from fires are most- 

numerous.
Relief rolls are heaviest.”

The Evening Sun, December 16, 1936.

The State of Maryland has a corrective agency for 
each of the above-mentioned ills. It cannot be denied 
that a cure for these ills is a public policy of Maryland 
and conversely anything tending to increase these evils 
is against public policy. Hence, any agreement between 
citizens of this State which contributes either directly or 
indirectly, towards a continuation of these ills is against 
public policy and should not be enforced by a Court of 
Equity. The matter affects the social welfare of a large 
part, if not all, of the community.



11

“  * * * the Courts have frequently quoted and 
often approved of the statement that public policy is 
that principal of the law which holds that ‘ no one 
can lawfully do that which has a tendency to be in­
jurious to the public or against the public good; that 
rule of law that declares that no one can lawfully do 
that which tends to injure the public, or is detri­
mental to the public good; the principles under which 
freedom of contract or private dealing is restricted 
by law for the good of the community.”

50 Corpus Juris, Sec. 62, p. 858.
Words and Phrases.

If it is illegal for the State of Maryland to pass a law 
specifying in what localities Negroes shall live, then it is 
at least against public policy for private citizens to com­
bine to do that which the State is forbidden to do. It is 
essentially a conspiracy to accomplish indirectly that 
which is forbidden of accomplishment directly. Chief 
Justice Chase said:

“  * * * there can be no doubt but that all con­
federacies whatsoever wrongfully to prejudice a 
third person, are highly criminal at common law; as 
where divers persons confederate together by divers 
means to impoverish a third person.”

State vs. Buchanan, 5 H. & J. 317, 366.

It has been held that a conspiracy between two or more 
persons to prevent Negro citizens from exercising the 
right to lease and cultivate land, because they are Ne­
groes, is a conspiracy to deprive them of a right secured 
to them by the Constitution and laws of the United States. 

U. S. vs. Morris, 125 Fed. 322.

Shelter is, in America, a necessity of life and any com­
bination designed to deprive a person of it should be de­



12

prived of the protection of a Court of Equity for “ He 
who comes into Equity must do so with clean hands.”

Courts of Equity frequently enforce restrictive cove­
nants on the use of real property. In such cases, how­
ever, the objection is to the use itself. But here the ob­
jection is not to the use but to the occupancy of the prop­
erty. The restriction is therefore against the person, 
and easily distinguished from the cases involving party 
walls, saloons, amusement places, and other offensive 
nuisances.

QUESTION NO. III.
THIS IS A PERSONAL COVENANT WHICH DOES NOT RUN 

WITH THE LAND AND IS NOT BINDING UPON 
THE APPELLANT MEADE.

At the time this covenant was executed, all of the signa­
tories thereto owned their respective properties. No 
one had any interest whatsoever in the property of any 
other and no intention to convey or acquire any such in­
terest. They entered into an agreement among them­
selves, that they would not dispose of their property to 
Negroes and though they stipulated that the covenant 
was to be binding upon their heirs and assigns and to run 
with the land, it, in fact, is incapable of binding any but 
the original parties because there has never been any 
privity of estate between the Tighes and those seeking to 
enforce the covenant. The law upon this point is sum­
marized as follows:

“ It is a general rule that a covenant which may 
run with the land can do so only when there is a sub­
sisting privity of estate between the covenantor and 
the covenantee, that is, when the land itself, or some 
estate, or interest therein, even though less than the 
entire title, to which the covenant may attach as its



13

vehicle of conveyance is transferred; and if there is 
no privity of estate between the contracting parties, 
the assignee will not be bound by, nor have the benefit 
of any covenants between the contracting parties not­
withstanding they relate to the land which he takes 
by purchase or assignment from one of the parties 
to the contract.”

15 C. J. 1242, Sec. 55; also p. 1260, Sec. 85.
Frank on Real Property, p. 100.
Poe, Practice and Pleading (5th Ed.), Vol. 1, 

Sec. 330, p. 282.
Summers vs. Beater, 90 Md. 474, 479, 480.
Bartell vs. Senger, 160 Md. 685.

As stated in Best on “ Restrictions and Restrictive 
Covenants,”  at p. 3:

“ Inasmuch as the covenant must be one that runs 
with the land, or with an interest or estate in the 
land, there must be land intended to be benefited by 
the covenant, and there must be a conveyance or 
lease of said land, or an assignment of the leasehold 
interest therein, by one of the parties to the covenant, 
though not necessarily by the same instrument but 
in the same transaction, transferring the said inter­
est or estate in the land with the covenant adhering 
to it. In other words, there must be privity of estate 
between the covenantor and covenantee, such privity 
resulting from the said conveyance, lease or assign­
ment. ’ ’

Citing:
Glen vs. Canby, 24 Md. 127.

The authorities uniformly hold that there must be priv­
ity of estate in order for the covenant to run with the 
land. The question of what constitutes privity of estate 
has been debated for hundreds of years and there seems 
to be no unanimity of opinion. An examination of the



14

better text-books and the cases from which their authors 
draw their conclusions discloses a well-established opin­
ion that privity of estate can be created only where there 
is some actual transfer of a property interest at the time 
of the creation of the covenant.

Sims on Covenants, at page 197, says:
“ In modern times it has become settled in Eng­

land, as we shall see, that not even the grant of an 
easement is sufficient to allow an accompanying cove­
nant to run.

“ The American law is generally settled that the 
covenant without some sort of a grant is merely a 
personal obligation.”

It is submitted that there was no conveyance in this 
case to which the covenant could attach in order to run 
with the land, and consequently there was no privity of 
estate between the Tighes and the other signatories to 
this agreement. Since nothing passed and no possession 
attended the conveyance, the covenant does not run.

“ With a very few exceptions, the uniform current 
of authorities from the time of Webb vs. Russell, 37 
T. R. 393, to the present day, requires a privity of es­
tate to give one man a right to sue another, upon a 
covenant where there is no privity of contract be­
tween them; consequently, that, where one who 
makes a covenant with another in respect to land 
neither parts with, nor receives any title or interest 
in the land at the time with and as a part of making 
the covenant, it is at best a mere personal one, which 
neither binds his assignee, nor inures to the benefit 
of the assignee of the covenantee, so as to enable the 
latter to maintain an action in his own name for a 
breach thereof.”  (Italics mine.)

Washburn on Real Property, 4th Ed., Vol. 2, 
p. 285.



15

See also:
Tiffany on Beal Property, (3rd Ed.), Sec. 391, 

p. 1407.
7 R. C. L., p. 1103.
66 L. R. A., p. 682, note.
Sharp vs. Cheatham, 88 Mo. 498.

Poe, in his Practice and Pleading, 5th Edition, Vol. 1, 
p. 282, says:

“ Whether a stranger to the land can enter into a 
covenant respecting it which will pass to the as­
signees of the land so as to enable them to maintain 
an action upon it is very doubtful. Sir Edward Sug- 
den maintains that there is no direct authority for 
the proposition.”

In arguing that there must be privity of estate in order 
for this covenant to run, I am not overlooking the deci­
sion of this Court in Clem vs. Valentine, 155 Md. 19, 26, 
where it was held that it is not necessary In Equity “ in 
order to sustain the action that there should be privity 
of estate or contract.”  But in Bartell vs. Senger, 160 
Md. 685, p. 691, after quoting from Clem vs. Valentine, 
supra, the Court remarked, “ nor does it certainly appear 
that there is any privity either of estate or contract be­
tween the parties to this proceeding,”  and held upon this 
and other facts “ the appellants have no standing in a 
Court of Equity to enforce the restrictions.”

If, however, this Court holds that the covenant in this 
case should be binding upon the Appellant Meade irre­
spective of privity of estate, there are other grave and 
equitable reasons why it should not be enforced in this 
case. Mrs. Becker testified that she thought a majority 
of signers controlled, and had she known that the entire 
area (24 blocks) would not have been restricted she would



16

never have signed the covenant. At the time she signed, 
she thought every other owner was going to sign the cove­
nant. Mrs. Dennistone testified to substantially the 
same thing, except that she would have signed the cove­
nant irrespective of whether the other signed, in the 
hope that they would sign later. These statements show 
clearly that they did not understand the nature and ex­
tent of these covenants.

The present situation surrounding these properties is 
such that the original purpose can no longer be effected. 
Eleven of the 29 properties within the block, including 
those next door to the Appellees, are not subject to this 
covenant, and Negroes could occupy them tomorrow. 
The surrounding streets are largely, if not predominant­
ly, occupied by Negroes. When faced with these circum­
stances,

‘ ‘ Courts of Equity have uniformly refused to inter­
fere for the purpose of enforcing observance of a 
restrictive covenant where the evidence shows that 
a state of things has arisen in the march of events 
which the parties to the agreement did not contem­
plate when it was made, and which would render its 
enforcement inequitable and unjust, resulting in in­
jury to the defendant without permanent benefit to 
the complainant.”

Boston Bapt. Social Union vs. Boston Univer­
sity, 183 Mass. 202.

Jackson vs. Stevenson, 156 Mass. 426.
Amerman vs. Deane, 132 N. Y. 355.

The Appellant Meade will be irreparably harmed in 
the premises should this covenant be enforced. He can­
not live in the property and yet he must continue to buy 
for if this Court enforces this covenant, Rev. Meade is not 
relieved from his obligation to purchase the property.



17

He must hope and depend upon rent to help him finance 
this property and he must in turn, rent elsewhere unless 
he is one of the few people able to purchase two homes 
at the same time. On the other hand, the Appellees will 
not be materially benefited because other Negroes may 
and can move next door to them. Already, one Negro 
owns and occupies one property in the block.

In still another respect, this covenant is of little prac­
tical effect. None of these people who signed the cove­
nant owned the land upon which his home was built. If 
for any reason the property should become vested in the 
reversioner, that particular piece of property would be 
freed of this covenant and the property could then be 
sold to Negroes for occupancy.

In McDowell vs. Biddison, where the facts showed that 
to close an old road would do no harm to the complain­
ant, but to keep it open would cause great damage and 
loss to the defendant, J. Burke held:

“ But if it be conceded that the agreement was 
made and established, the case is not one in which 
the injunction could have been continued. No real 
harm has been done the plaintiff by the closing of 
the old road, and very great harm would be done to 
the defendant by granting the relief prayed for. It 
is said in McCutcheon’s Heirs vs. Rawleigh, 76 8. W. 
51, that it is not every plain and certain contract that 
will be specifically enforced, whatever may be the 
legal rights of the parties in an action of damages 
for its breach.”  * * * “ If to enforce specifically an 
agreement would do one party great injury and the 
other but comparatively little good, so that the result 
would be,' more spiteful than just, the Chancellor will 
not require its execution.”

120 Md. 118, p. 127.



18

If we weigh the equities—the comparative burdens and 
benefits—we see that the Court is asked to deprive one 
man of the right to occupy a house he owns to satisfy 
the prejudice of two women who live some distance from 
the house in question. It is now impossible for them to 
secure what they originally bargained for, i. e., an ex­
clusively white neighborhood.

Respectfully submitted,

W. A. C. HITCHES, JR.,
Solicitor for Appellant.



19

INDEX TO RECORD.

PAGE.

Agreement as to Record................. ...................... ....... 3

Docket Entries .......... .......................................... .........  3,4

Statement of Case ........ ......................................... .......  4

Bill of Complaint ....................... ..... ............................  4

Answer of Frank Berman..........................................  7

Answer of Edward Meade.............    8

Covenant ....................................      11

Testimony of Mary J. Becker..................... ................ 16

Testimony of M. Estelle Dennistone.... .......... ........... 20

Final Decree .............................................   22

Order for Appeal ........................................................  23

Certification by Clerk .....................„.......................... . 24





E dward Meade 

vs.

I k  T he

Court of Appeals
Of Maryland.

>
M. E stelle D ennistone and 

Mary J. B ecker.
October T erm, 1937.

General D ocket No. 26.

BRIEF FOR APPELLEE.

J. S. T. WATERS,
WILLIAM L. MARBURY, JR., 
ROBERT R. PORTMESS,

Attorneys for Appellee.





E dward Meade

In The

vs.

M. E stelle D ennistone and 
Mary J. B ecker.

Court of Appeals
Of Maryland.

October T erm, 1937.

J  General D ocket No. 26.

BRIEF FOR APPELLEE.

STATEMENT OF THE CASE.

This is an appeal from an Order of the Circuit Court 
of Baltimore City (S olter, J.) enjoining the appellant, 
Edward Meade, a negro, from using or occupying the 
premises known as 2227 Barclay street in the City of 
Baltimore, and further enjoining and restraining Frank 
Berman, his heirs, etc., from permitting the appellant 
to use or occupy the premises aforesaid. The injunction 
was issued to enforce a neighborhood restrictive agree­
ment entered into by the appellees and the predecessors 
in title of the appellant. The questions involved in the 
appeal depend upon the validity of this agreement, and 
its enforceability in equity.

THE QUESTIONS IN CONTROVERSY.

I.

Is the Restrictive Agreement Valid?

The trial court answered this question in the affirma­
tive by issuing an injunction. The appellee contends that 
the ruling of the trial court is correct for the following 
reasons:



2

A. The agreement is not contrary to public policy.

B. The agreement does not place an unreasonable 
restraint upon alienation.

C. The agreement is not repugnant to the grant.

D. Enforcement of the agreement does not deprive 
the appellant of property without due process of law.

II.
Has Equity Jurisdiction to Enforce the Agreement?

The trial court answered this question in the affirma­
tive by issuing the injunction. The appellant contends 
this is correct for the following reasons:

A. Equity has jurisdiction to enforce a restrictive 
covenant, although it does not run with the land.

B. There need be no privity of estate and contract be­
tween the covenantor and the covenantees.

C. There is no adequate remedy at law.

III.
Has the Covenant Failed In Its Purpose?

The trial court answered this question in the negative. 
The appellant contends that this ruling is correct for the 
following reasons:

A. The record shows no material changes in condi­
tions since the execution of the agreement.

B. The record does not show that enforcement of the 
agreement will depreciate the value of the property.



3

STATEMENT OF FACTS.

Sometime prior to November 14, 1927 a colored family 
moved into the 2300 block of Guilford avenue in the City 
of Baltimore. Shortly thereafter it was rumored that a 
colored family was to occupy a vacant house nearby on 
Barclay street. A  meeting was then called of the prop­
erty owners in the area of twenty-four square blocks, 
bounded on the north and south by Twenty-fifth street 
and North avenue, and on the east and west by Barclay 
street and Charles street. Following this meeting an 
agreement was signed by a number of the property 
owners of houses on Barclay street (R. 15).

The agreement is dated the 14th day of November, 1927, 
and was recorded among the Land Records of Baltimore 
City on January 27, 1928. It was signed by the owners 
of eighteen properties in the 2200 block of Barclay street 
and provided that the parties thereto—“ jointly and sev­
erally for themselves and each of themselves, their and 
each of their personal representatives successors and as­
signs grant warrant covenant promise and agree amongst 
themselves and each and all of them with all and each one 
of the others their heirs and each of their heirs personal 
representatives successors and assigns that they and each 
of them their heirs and each of their heirs personal repre­
sentatives successors and assigns shall and will have hold 
stand seized and possessed of the said respective prop­
erties interest and estate subject to the following restric­
tions limitations conditions covenants agreements stipu­
lations and provisions to wit THAT neither the said re­
spective properties nor any of them nor any part of them 
or any of them shall be at any time occupied or used by 
any negro or negroes or person or persons either in 
whole or in part of negro or African descent except only



4

that negro or persons of negro or African descent either 
in whole or in part may be employed as servants by any 
of the owners or occupants of said respective properties 
and as and whilst so employed may reside on the prem­
ises occupied by their respective employers nor shall any 
sale lease disposition or transfer thereof be made or oper­
ate otherwise than subject to the aforesaid restrictions 
as to and upon use or occupancy that neither the said 
parties nor any of them their or any of their heirs per­
sonal representatives successors and assigns will do or 
permit to be done any of the matters or things above- 
mentioned excepting only as aforesaid”  (R. 12-13). It 
further provided that the restrictions set forth should 
run with the land and bind the properties and any suc­
cessors of all the parties to the agreement and should 
inure to the benefit of any successor at any time owning 
or occupying any of said properties.

The appellees, M. Estelle Dennistone and Mary J. 
Becker, who were respectively the owners of Nos. 2221 
and 2234 Barclay street, signed the agreement as did 
Annie M. Tighe, Mary Y. Tighe, Francis L. Tighe and 
Anna R. G-ugerty, who were then the owners of 2227 Bar­
clay street. Thereafter, on May 27, 1935, the aforesaid 
owners of 2227 Barclay street conveyed the property to 
Florus Barry, who on the same day conveyed it to Mary
V. Tighe and Anna R. Gugerty, who on November 4, 1936 
(Mary V. Tighe) conveyed the property to Frank Ber­
man (R. 14). On October 22, 1936 Frank Berman, 
through his agent, contracted to sell 2227 Barclay street 
to the appellant, Edward Meade, a negro, for the sum of 
$1,100, of which $150 was paid in cash, the balance to be 
paid on conditional contract of sale. Thereafter, and 
prior to the 24th day of November, 1936, Edward Meade



5

entered into possession of the premises and with his 
family  occupied the same as a residence (B . 10).

On November 24, 1936 the appellees filed their bill of 
complaint against the appellant and Frank Berman re­
citing the aforesaid facts and praying that the appellant 
be enjoined and restrained from using or occupying No. 
2227 Barclay street, and that the defendant, Frank Ber­
man, be enjoined and restrained from procuring and au­
thorizing or permitting any negro or negroes or person 
or persons either in whole or in part of negro or African 
descent to use or occupy the property contrary to the 
provisions of the agreement set forth in the bill of com­
plaint. On the same date Judge F e a u k  signed an order 
requiring the defendant to show cause on or before De­
cember 1, 1936, why the injunction should not issue as 
prayed (B. 6).

The defendant, Frank Berman, filed his answer in 
which he asserted that the agreement was null and void 
for the reason that it had been executed upon the under­
standing that the owners of all the properties in the block 
would sign, whereas the owners of eleven of such prop­
erties never did sign the agreement; and for the further 
reason that the agreement had failed to accomplish its 
purpose. Berman also alleged that by reason of the occu­
pation of nearby properties by negroes, the value of the 
property in question would be greatly increased by recog­
nition of the invalidity of the agreement.

Thereafter, the appellant, Edward Meade, answered 
the bill alleging that the agreement was invalid and unen­
forceable because: (a) it was a personal covenant and did 
not run with the land; (b) it was contrary to public pol­
icy ; (c) there was no privity of estate or contract between 
the covenantor and the covenantee; (d) it was an unrea­



6

sonable restraint placed upon the free alienation of the 
property in question; (e) the reason for its execution no 
longer obtained; (f) enforcement of the agreement would 
deprive the appellant of his property without due process 
of law. To the answer was appended a demurrer on gen­
eral grounds, and on the ground that the appellee had 
an adequate remedy at law.

The case came on for hearing and testimony was taken. 
It was conclusively shown by the testimony of the appel­
lees that they had executed the agreement with full knowl­
edge that other owners either failed or refused to sign 
(R. 19). No testimony to the contrary was produced on 
behalf of the appellant or the defendant, Frank Berman.

The testimony further showed that, at the time the 
agreement was entered into, Twenty-third street was in­
habited by colored people and there were two colored 
churches on that street, an alley known as Twenty-second 
and a half street was occupied by colored people, and one 
colored family had moved into the 2300 block of Guilford 
avenue. It was shown that with the exception of the 
Guilford avenue block the streets in question had been 
colored for many years (R. 15, 20). The testimony fur­
ther showed that, at the time of the trial, Brentwood ave­
nue, a narrow street running from North avenue to 
Twenty-fifth street between Barclay and Guilford ave­
nue, was inhabited by colored people and that a part of 
Twenty-fourth street was also inhabited by colored peo­
ple, but the record failed to show whether this condition 
existed at the time when the agreement was entered into.

The testimony also showed that since the signing and 
recording of the agreement there had been no occupancy 
of Barclay street by colored people with the single excep­



7

tion of 2238 Barclay street, which stands at the southwest 
corner of Barclay and Twenty-third street. This prop­
erty was a dressmaking shop on the first floor catering 
exclusively to white trade, which was entered from Bar­
clay street; it had an apartment on the upper floor which 
was entered from Twenty-third street and was occupied 
by a colored man and his wife who used the Twenty-third 
street entrance exclusively. This property had never 
been covered by the agreement, and the use made thereof 
was not objectionable to the white residents on Barclay 
street (R. 15).

The appellees offered in evidence an agreement duly 
executed and recorded on December 14, 1936 signed by a 
number of property owners in the 2200 block of Barclay 
street who were not signatories to the original agree­
ment. This agreement was in substance identical with 
the agreement signed by the complainants and the prede­
cessor in title of the appellant and the defendant Berman. 
It was shown that the agreement had been signed and 
originally recorded on July 21, 1936, but that by reason 
of defective acknowledgment it had been necessary to 
record the agreement again subsequent to the institution 
of the present suit. The trial court ruled that the agree­
ment could not be admitted into evidence, and an excep­
tion was duly noted (R. 21).

On January 18, 1937 the trial court entered a decree 
in accordance with the prayer of the bill. The appellant, 
Edward Meade, duly appealed, but the defendant Frank 
Berman took no appeal from the order.



8

ARGUMENT
The undisputed facts in the case and the pleadings 

themselves somewhat narrow the issues on this appeal. 
There is no dispute as to the signing of the agreement, 
as to its recordation, as to appellee’s title or as to the fact 
that the appellant derived his right of possession directly 
from a signatory to the agreement. The only questions 
presented are as to the validity of the agreement, and its 
enforceability by a court of equity.

I.
T H E  A G R E E M E N T  IS V A L ID .

A .  The Agreement Is Not Contrary to Public Policy.

It is hardly necessary to argue that an agreement re­
stricting the occupancy of land against negroes or per­
sons of African descent is consistent with the public pol­
icy of this State. That policy was authoritatively ex­
pressed by this Court in the case of State v. Gurry, 121 
Md. 534, where, an ordinance of Baltimore City requir­
ing the segregation of the negro and white races was 
considered and the general policy of segregation ap­
proved although the ordinance was held invalid on other 
grounds. A new ordinance obviating the defects pointed 
out in that decision was enacted and went unchallenged 
until a similar ordinance of the City of Louisville was 
held invalid in the case of Buchanan v. Warley, 245 U. S. 
60, but we do not perceive how that decision can affect the 
public policy of the State of Maryland, nor indeed can 
Buchanan v. Warley be taken to indicate disapproval of 
the policy, the decision turning on the power of the City 
to pass the ordinance.



9

In any event, cases arising in other jurisdictions have 
unanimously held that a covenant against use or occu­
pancy by negroes is valid and enforceable. Some cases 
draw a distinction between covenants against occupancy 
by negroes and covenants against sale to negroes, holding 
the latter invalid as contrary to public policy. Other 
cases reject the distinction and hold such contracts 
equally valid, but no case has been found holding that a 
covenant against occupancy is invalid as against public 
policy or for any other reason.

A summary of the decisions follows:

(1) Cases holding covenants againt sale to negroes to 
be valid:

Corrigan v. Buckley, 299 F. 899 (Ct. of App.
D. C. 1924) appeal dismissed, 271 U. S. 
323

Torrey v. Wolfes, 6 F. (2d) 702 (Ct. of App. 
D. C. 1925)

Russell v. Wallace, 30 F. (2d) 981 (Ct. of App. 
D. C. 1929) certiorari denied, 279 U. S. 
871

Cornish v. O’Donoghue, 30 F. (2d) 983 (Ct. of 
App. D. C. 1929) certiorari denied, 279 
IT. S. 871

Koehler v. Rowland, 275 Mo. 573, 205 S. W. 
217, 9 A. L. E. 107 (1918)

Queensborough Land Co. v. Caseaux, 136 
La. 724, 67 So. 641, L. E. A. 1916 B, 1201 
(1915)

(2) Cases holding covenants against sale to negroes to 
be void:

Title Guarantee & Tr. Co. v. Garrott, 42 Cal. 
App. 152, 183 P. 470, (1919)

, Los Angeles Inv. Co. v. Gary, 181 Cal. 680,
186 P. 596, 9 A. L. E. 115, (1919)



10

Janss Inv. Go. v. Walden, 196 Cal. 753, 239 P. 
34, (1925)

Wayt v. Patee, 205 Cal. 46, 269 P. 660 (1928) 
Mandlebaum v. McDonnell, 29 Mich. 78, 18 

Am. Rep. 61, (1874)
Porter v. Barrett, 233 Mich. 373, 206 N. W.

532, 42 A. L. R. 1267 (1925)
White v. White, 108 W. Ya. 128, 150 S. E. 531, 

66 A. L. R. 518 (1929)
(3) Cases, such as the one at bar, involving the validity 

of a covenant against occupancy by, as distin­
guished from sale to negroes. Every case decided 
on the question has held such a covenant to be 
valid and it has been so held even by jurisdictions 
which hold covenants against the sale to negroes 
to be void.

Los Angeles Inv. Co. v. Gary, supra 
White vs. White, supra 
Parmalee v. Morris, 218 Mich. 625, 188 N. W. 

330, 38 A. L. R. 1180 (1922)
Porter v. Barrett, supra 
Janss Inv. Go. v. Walden, supra 
Wayt v. Patee, supra
Schulte v. Starks, 238 Mich. 102, 213 N. W. 102, 

(1927)

Covenants against occupancy by negroes are not con­
trary to public policy:

In Parmalee v. Morris, supra, the deed to the property 
in question provided that “ No building shall be built 
within 20 feet of the front line of the lot. Said lot shall 
not be occupied by a colored person, nor for the purpose 
of doing a liquor business thereon.”  The defendants, 
colored people, contracted to buy the property and the 
plaintiffs, owners of similarly restricted properties in



11

the same subdivision, sought to have the defendants en­
joined from violating the restriction. One of the 
grounds for the defendants’ contention that the covenant 
was void was that it was contrary to public policy.

In upholding the validity of the covenant the court 
said (218 Mich. 628):

“ Is the restriction contrary to public policy?
“ It has been said that certain acts are contrary 

to public policy so that the law will refuse to recog­
nize them when they have a mischievous tendency 
so as to be injurious to the interests of the state. 
This brings up the question as to what interests of 
the state are likely to be injured if an owner of prop­
erty, for reasons which are satisfactory to himself, 
refuses to sell himself, or permit his assignors to 
sell, to certain persons who may be distasteful to 
him as neighbors. Are there any interests of the 
state which will be promoted or advanced compelling 
the creation of such a condition in the community! 
The law is powerless to eradicate racial instincts or 
to abolish distinctions which some citizens do draw 
on account of racial differences in relation to their 
matter of purely private concern. For the law to at­
tempt to abolish these distinctions in the private 
dealings between individuals would only serve to 
accentuate the difficulties which the situation pre­
sents.

“ One of the purposes of the restriction in the in­
stant case was apparently to preserve the subdivi­
sion as a district unoccupied by negroes. Whether 
this action on the part of the owner was taken to 
make the neighborhood more desirable in his estima­
tion, or to promote the better welfare of himself and 
his grantees, is a consideration which I do not be­
lieve enters into a decision of the case. So far as



12

I am able to discover, there is no policy of the state 
which this action contravenes. Were defendants’ 
claim of rights based upon any action taken by the 
authority of the state, an entirely different ques­
tion would be presented.”

In Corrigan v. Buckley, 299 F. 899, 902, (Ct. App. D.
C., 1924), appeal dismissed 271 U. S. 323, the covenant 
in question forbade the sale or leasing to, or occupancy 
by, negroes. It was contended that the covenant vio­
lated the 14th Amendment of the Constitution and was 
contrary to public policy. After holding that the cove­
nant did not violate the 14th Amendment the court said 
(p. 902):

“ It follows that the segregation of the races, 
whether by statute or private agreement, where the 
method adopted does not amount to the denial of 
fundamental constitutional rights, cannot be held to 
be against public policy. Nor can the social equal­
ity of the races be attained, either by legislation or 
by the forcible assertion of assumed rights. * * *”

Nor have any of the cases involving the validity of 
covenants against occupancy by negroes, cited supra, 
held such covenants to be contrary to public policy.

B. The Agreement Does Not Place an Unreasonable 
Restraint Upon Alienation.

The cases cited in the preceding section of this brief 
are unanimous in holding that a covenant against occu­
pancy by negroes is not a restraint upon alienation, but 
is merely a restraint against the use of real property. 
Some cases hold that a covenant against sale to negroes 
is invalid as being an unreasonable restraint on aliena­
tion, although there are many decisions to the contrary.



13

Not a single case, however, holds that a covenant merely 
forbidding occupancy by negroes is invalid as a restraint 
on alienation. See especially:

Los Angeles Inv. Co. v. Gary, supra 
White v. White, supra 
Parmalee v. Morris, supra 
Porter v. Barrett, supra 
Janss Inv. Co. v. Walden, supra 
Wayt v. Patee, supra.
Schulte v. Starks, supra.

C . The Covenant Forbidding Occupancy by Negroes Is Not Void 
As Being Repugnant to the Grant.

Although all courts agree that conditions or restric­
tions completely destroying the right to alienate prop­
erty, even for a limited time, are void, as inconsistent 
with complete ownership, and many courts hold even 
partial restraints on alienation void as repugnant to the 
interest created, the question of the restriction of the 
right to alienate, either complete or partial, is not in­
volved in this case. The covenant in question is not a 
restriction on the right to alienate but on the use of the 
property, and such covenants against occupancy by ne­
groes have been held to be valid restraints on the use of 
the property in every case in which their validity has 
been questioned and in no instance to be repugnant to 
the grant:

Los Angeles Inv. Co. v. Gary, supra 
Wayt v. Patee, supra 
White v. White, supra 
Parmalee v. Morris, supra 
Schulte v. Starks, supra.



14

D . Enforcement of the Agreement Does Not Deprive the Appellant 
of His Property Without Due Process of Law.

The question of the validity of restrictive agreements 
of this type under the Fourteenth Amendment of the Con­
stitution of the United States was closed by the decision 
of the Supreme Court in Corrigan v. Buckley, 271 U. S. 
323, 331 (1926) where the Court dismissed as without 
merit an appeal from a decision of the Court of Appeals 
of the District of Columbia affirming an injunction ■ en­
forcing an agreement among private individuals forbid­
ding the sale of the property to negroes. It will be noted 
that this injunction upheld an agreement not to sell, 
which is far more drastic than an agreement against oc­
cupancy. The ground of the decision was that enforce­
ment of a covenant against occupancy or sale of property 
is not a violation of the Fourteenth Amendment, but 
merely tolerates discrimination by individuals and in no 
wise sanctions such discrimination by the State either 
through its legislative or judicial departments.

As it is elementary that the first,Section of the Four­
teenth Amendment has exclusive reference to the inva­
sion of individual rights by the States and has no appli­
cation to the invasion of individual rights by individuals, 
it follows that the Fourteenth Amendment is not applic­
able.

The Civil Rights Cases, 109 U. S. 3 
Corrigan v. Buckley, 299 F. 899, 901 (Ct. of 

App. D. C. 1924), 271 U. S. 323, 330, 331 
(1926)

Los Angeles Inv. Co. v. Gary, supra 
Parmalee v. Morris, supra.



15

II.
EQUITY HAS JURISDICTION TO ENFORCE 

THE AGREEMENT.
A , A Restrictive Covenant May Be Enforced in Equity Against an 

Assignee of a Covenantor, Although It Does Not 
Run With the Land.

In order to be enforced in equity a restrictive cove­
nant as to the use of land need not be one “ running with 
the land”  in the technical sense of the term:

“ Even in jurisdictions where, as in England, the 
burden of a covenant does not run with the land, an 
agreement as to the use of land may, under certain 
circumstances, affect a subsequent purchaser of the 
land who takes with notice of the agreement. As 
stated in the leading case on the subject, ‘ the ques­
tion is not whether the covenant runs with the land, 
but whether a party shall be permitted to use the 
land in a manner inconsistent with the contract en­
tered into by his vendor, and with notice of which he 
purchased’. # * Such an agreement may occur in
connection with a conveyance of land, restricting the 
grantor, * * * or restricting the grantee. * * # Or it 
may be independent of any conveyance of land, be­
ing merely an agreement between adjoining owners 
as regards the use of their land.”

2 Tiffany on Real Property (2nd ed.) 1425, 
1426 Sec. 394

In Pomeroy’s Equity Jurisprudence (4th ed.) Sects. 
688 and 689, the rule is stated as follows:

“ A purchaser with notice of a prior contract to 
sell or to lease takes subject to such contract, and is 
bound in the same manner as his vendor to carry it 
into execution. # # # On the same principle, if the 
owner of land enters into a covenant concerning the 
land, concerning its uses, subjecting it to easements 
or personal servitudes and the like, and the land is



16

afterwards conveyed or sold to one who has notice of 
the covenant, the grantee or purchaser will take the 
premises bound by the covenant, and will be com­
pelled in equity either to specifically execute it, or 
will be restrained from violating it ; and it makes no 
difference whatever, with respect to this liability in 
equity, whether the covenant is or is not one which 
in law ‘ runs with the land ’, ’ ’

In Clem v. Valentine, 155 Md. 19, 26, the court quoted 
the following from Columbia College v. Lynch, 70 N. Y. 
440, 449:

“ Whether it was a covenant running with the 
land, or a collateral covenant, or a covenant in gross, 
or whether an action at law could be sustained upon 
it, is not material as affecting the jurisdiction of a 
court of Equity, or the right of the owners of the 
dominant tenement to relief upon a disturbance of 
the easements.”

After quoting this language, the Court in Clem v. Val­
entine, said:

“ It seems to be well settled by the weight of au­
thority that any grantee of the land to which such 
a right is appurtenant acquires by his grant a right 
to have the servitude, or easement, or right of 
amenity, protected in equity, notwithstanding that 
his right may not rest on the covenant, which simply 
runs with the title to his land, and notwithstanding 
that it may also be true that he may not be able to 
maintain an action at law for the vindication of his 
right. ’ ’

In Schmidt v. Hersey, 154 Md. 302, 306, the Court said 
that the “ right is one enforced ‘ by virtue of the equit­
able doctrine applicable, and does not depend upon the 
existence of a covenant running with the land, or



17

upon the existence of any right to relief under the com­
mon law. ’ ’ ’

In Newbold v. Peabody Heights Co., 70 Md. 493, 500, 
the court said:

“ It may be very true that the covenant is not of 
a character to run with the land, in the strict legal 
technical sense of those terms; but if it be of a char­
acter to create a right and an equity in favor of the 
vendor or lessor, and those claiming in his right, 
as against those holding and occupying the land, a 
Court of Equity will assume jurisdiction and admin­
ister relief. This is a well settled principle. * * *”

In order for a covenant, restricting the use of land, to 
be enforceable in equity against a subsequent holder of 
the land, it must appear that the intention of the cove­
nanting parties was that the restriction was to bind not 
only the promisor, but subsequent owners of the land as 
well.

In Wood v. Stehrer, 119 Md. 143, 149, Chief Judge 
Boyd, in speaking of whether a certain restrictive cove­
nant was binding on the heirs and assigns of the cove­
nantors, said:

“ * * # if it is intended to bind heirs and assigns 
by such restrictions, it must be so stated, or at least 
there must be enough in the instrument to show that 
such was the intention. ’ ’

And, because the covenant involved did not refer to the 
heirs and assigns of the covenantors, or provide that 
they should “ use or hold the remainder of the property 
subject to the same restrictions imposed on the lot con­
veyed” , it was held to be a mere personal agreement of 
the grantors which was not enforceable against other 
proprietors.



18

In Baft ell v. Senger, 160 Md. 685, 690, the Court said 
that “ It is apparent,”  that in proceedings in equity in­
volving restrictions or restrictive covenants, “ all techni­
cal considerations, whatever may be their nature, are sub­
ordinate to the intention of the parties”  to the covenant.

The presumption is that the parties to the covenant in­
tended that the restriction was to bind all subsequent 
holders of the land and not merely the promisor.

“ What the intention was in this regard is a ques­
tion of construction, but since it is ordinarily imma­
terial to the promisee who may make any particular 
use of the property, the presumption would seem to 
be, in the absence of a clear showing to the contrary, 
that such a use by any person whomsoever is intend­
ed, and an intention to this effect would appear to be 
clearly indicated by the fact that the agreement in 
terms binds the promisor’s assigns, or that the 
agreement is an impersonal form, that the land shall 
not be used in a particular way.”

2 Tiffany on Beal Property (2nd ed.) p. 1438, 
Sect. 397.

There can be little doubt, upon examining the language 
of the agreement between the covenanting parties, 
that their intention was that the restriction against oc­
cupancy of any of their properties by negroes was to ap­
ply to subsequent holders of their properties as well as 
to themselves. The language of the instrument is abso­
lutely unequivocal to that effect, providing that “ they 
and each of them their heirs and each of their heir’s per­
sonal representatives successors and assigns shall and 
will have hold stand seized and possessed of the said re­
spective properties interest and estate subject to the fol­
lowing restrictions limitations conditions covenants 
agreements stipulations and provisions to wit, That “ etc.



19

After reciting the restrictions the agreement further 
provides “ that all and singular the restrictions limita­
tions conditions covenants agreements stipulations pro­
visions matters and things whatsoever herein contained 
or mentioned shall run with and bind the land and each 
and all of the above mentioned properties and premises 
and every part thereof and the heirs personal representa­
tives successors or assigns of each and all of the parties 
hereto and shall be kept and performed by and inure to 
the benefit of and be enforceable by all and every per­
son and persons body and bodies politic or corporate at 
any time owning or occupying said land. * * * ”  It would 
be difficult to imagine a more specific statement by the 
covenanting parties that they intended all subsequent 
holders of the land, as well as themselves, to be bound 
by the covenant and the restriction therein contained.

In order for a covenant, restricting the use of land, 
to be enforceable in equity against a subsequent pur­
chaser of the land, it must also appear that the subse­
quent purchaser took with notice of the restriction—

“  * * * a restrictive agreement is enforced in equity 
against a subsequent purchaser only when he takes 
with notice thereof. Such notice may be either ac­
tual or constructive, and the purchaser is, in accord­
ance with the general rule as to notice, charged with 
notice of anything showing or imposing such a re­
striction which may be contained in a conveyance in 
the chain of the title under which he claims. * * *”  

2 Tiffany on Real Property (2nd ed.) p. 1439, 
Sect. 398.

“ The notice may be actual, as where a convey­
ance was made ‘ subject to the restrictions and con­
ditions in said deed recited’, referring to an earlier 
deed. Ringgold vs. Denhardt, 136 Md. 136, 140. Or,



20

it may be constructive. Thus, the constructive no­
tice furnished by the record of an instrument con­
taining the restrictions properly recorded among the 
land records is sufficient to satisfy the rule requir­
ing notice of the restrictions.”

Best on Restrictions and Restrictive Cove­
nants, p. 39.

In Lowes v. Carter, 124 Md. 678, the question was 
whether the recording of a 'certain restrictive covenant 
gave sufficient notice to a purchaser of land subject there­
to to warrant the enforcement of the covenant against 
him in equity.

The Court held that actual notice by the purchaser of 
the existence of the restrictive covenant was not neces­
sary to enforce its provisions against him in equity but 
that the recording of the instrument, giving the pur­
chaser constructive notice thereby, was sufficient.

In the present case, therefore, the appellant, the sub­
sequent purchaser of No. 2227 Barclay Street, one of the 
lots bound by the covenant against occupancy by negroes, 
had sufficient notice of the existence and provisions of 
the covenant to warrant his being bound thereby in a 
court of equity. The instrument, embodying the cove­
nant in question, was recorded among the land records 
of Baltimore City in Liber S. C. L. 4841, folio 354, on 
January 27, 1928, some time prior to the appellant’s en­
tering into the contract to purchase No. 2227 Barclay 
street. Being on record at the time of contracting to 
purchase said lot, the appellant cannot contend that he 
had no notice of the covenant’s existence as the prior re­
cording of the covenant served to notify him construc­
tively thereof.



21

B. A Restrictive Covenant Is Enforceable in Equity, Although There
Was No Privity of Contract and Estate Between the 

Parties Thereto.

Although it may be true that, in order for a covenant 
to “ run with the land”  in the technical sense of the term, 
so as to sustain an action at law, there must be privity 
of both estate and contract between the covenantors and 
covenantees, such privity is not necessary for the enforce­
ment of a restrictive covenant in equity and hence the 
presence or absence of such privity in this case is entirely 
academic.

In Clem v. Valentine, 155 Md. 19, 26, the court, after 
holding that a covenant need not be one running with 
the land, in the legal sense, in order to be enforceable in 
equity, said:

“ Nor is it necessary, in order to sustain the action, 
that there should be privity of estate or contract, but 
there must be found somewhere the clear intent to 
establish the restriction for the benefit of the party 
attempting to restrain its infringement.”

Furthermore, the necessity for privity of estate and 
contract in order for a covenant to run with the land at 
law is a purely technical requirement and need not neces­
sarily be present for the enforcement of a restrictive 
covenant in equity:

“  . . .  it is apparent that in such a proceeding as 
this all technical considerations, whatever may be 
their nature, are subordinate to the intention of the 
parties. ’ ’

Bartell v. Senger, 160 Md. 685, 690.

Covenants similar to the one in question have been fre­
quently enforced in equity even though the parties there­
to were adjoining owners and there was no privity of es­
tate between them.



22

In 2 Tiffany on Real Property (2nd ed.) p. 1426, Sect. 
394, discussing the types of restrictive covenants en­
forceable in equity, it is said:

‘ ‘ Such an agreement may occur in connection with 
a conveyance of land, restricting the grantor, or the 
subsequent transferees of the grantor, as regards the 
use of the land retained by him, or restricting the 
grantee as regards the use of the land conveyed. Or 
it may be independent of any conveyance of land, 
being merely an agreement between adjoining own­
ers as regards the use of their land.”

In Wayt v. Patee, 205 Cal. 46, 269 P. 660 (1928), 
the various lot owners in a sub-division entered into 
a covenant restricting the use of their land by for­
bidding occupancy “ by any persons other than of the 
Caucasian race. ’ ’ One of the owners subsequently nego­
tiated the sale of his lot to negroes. Certain of the other 
lot owners brought an action in equity to enjoin the con­
veyance to the negroes and to enjoin the negroes from 
occupying the premises.

The court enforced the covenant and granted the in­
junction even though it that case, as in the case at bar, 
there was no privity of estate between the covenanting 
parties.

In Corrigan v. Buckley, 299 F. 899, (Ct. of App. D. C. 
1924), certain adjoining and neighboring property own­
ers entered into a covenant against sale or rental to, or 
occupancy by, negroes. Although there was no privity 
of estate between the covenanting parties the court, nev­
ertheless, at the instance of certain of the covenanting 
parties, restrained another of the parties to the covenant 
from selling to a negro.

In Russell v. Wallace, 30 F. (2d) 981, (Ct. of App. D. 
C., 1929), the owners of the lots in Randolph Place, Wash­



23

ington, D. C., together bound themselves by a covenant 
against a transfer of any of the properties, in any man­
ner, to negroes. Although, as here, there was no privity 
of estate between the several parties to the covenant, the 
court of equity nevertheless enforced the covenant at the 
behest of certain of the lot owners and restrained a sale, 
by one of the parties to the instrument, to negroes.

C. There Is No Adequate Remedy at Law.

The absence of adequate remedy at law is clear. A suf­
ficient ground is that there is no privity of estate, it being 
well-settled that “ by the common law no stranger to any 
covenant, action or condition had any advantage or bene­
fit of the same by any ways in the law, except such as 
were parties or privies thereto.”  Moale v. Tyson, 2 H. 
& McH. 387, 388. It may also be suggested that the rem­
edy at law would necessarily depend upon whether the 
covenant is one which runs with the land. Glenn v. Can- 
by, 24 Md. 127, 130; Whalen v. B. & 0. R. Co., 108 Md. 
11, 20.

III.
T H E  C O V E N A N T  H A S  N O T  F A IL E D  IN IT S  P U R P O S E .

A . The Record Shows No Material Change in Conditions Since the 
Execution of the Agreement.

The record utterly fails to show a material change in 
conditions since the execution of the agreement. It is 
true that the record would indicate that negroes live in 
the 2300 block of Guilford avenue; that Brentwood ave­
nue, a narrow street running from North avenue to Twen­
ty-fifth street, between Barclay street and Greenmount 
avenue, is inhabited by colored people; that an alley 
known as Twenty-second and a half street, and Twenty- 
third and part of Twenty-fourth streets are inhabited by 
colored people; that there are two negro churches on



24

Twenty-third street; and that 2238 Barclay street is oc­
cupied by colored people.

However, the instrument, containing the restrictive 
covenant in question, is dated November 14, 1927, and 
was recorded January 27,1928. At the time of the agree­
ment there was a negro church on Twenty-third street, 
Twenty-second and a half was colored and had been so 
since the Great War, as also had Twenty-third street. 
One colored family had already moved into the 2300 block 
of Guilford avenue, which was, in fact, one of the reasons 
for the neighborhood meeting out of which grew the cove­
nant under consideration. The record fails to show 
whether Brentwood avenue, or Twenty-fourth street were 
colored when the agreement was signed.

On this record there is no evidence of substantial 
change in the character of the neighborhood since the 
restrictive agreement was signed. The surrounding 
neighborhood was partially colored and was becoming in­
creasingly so. Alarmed by a colored family moving into 
the 2300 block of Guilford avenue, certain residents of 
the nearby 2200 block of Barclay street banded together 
and, by virtue of a restrictive covenant, sought to stem 
the advancing tide of colored people. The one block in 
Guilford avenue has become entirely colored, but the 
signers of the covenant foresaw that that would probably 
happen and for that very reason entered into the cove­
nant in an effort to protect their own homes.

Indeed the only material change, in regard to negroes 
occupying property in the entire restricted area of twen­
ty-four square blocks was the occupancy of 2238 Barclay 
street by colored persons. This has been the sole occu­
pancy of Barclay street by a negro family since the sign­
ing and recording of the covenant. This single occu­



25

pancy by negroes has not so altered things, however, that 
the original purpose of the signers in so restricting their 
properties can no longer be accomplished. They are 
still substantially removed and protected from undesir­
able proximity with colored people as 2238 is on a corner, 
at the end of the block. Furthermore the dressmaking 
establishment on the first floor of 2238 draws no colored 
people as it caters exclusively to white patrons, nor are 
the upper floors objectionable as the entrance thereto is 
on a side street which has always been colored. The 2200 
block of Barclay street still is, to all intents and purposes 
a white block, and the purpose of the covenant was to 
preserve it as such.

This occupancy of 2238 Barclay street by colored peo­
ple did not in itself amount to a breach of the covenant 
as the owner of the property did not sign it. The lot 
was, therefore, not subject to the restriction but was out­
side of the restrictive tract both geographically and fig­
uratively, and the change may be said to have taken place 
outside of the restricted tract. No colored family had 
ever occupied a house within the restricted area before 
the appellant, Meade, moved into 2227.

B. There Is No Evidence That the Value of the Property Will Be 
Diminished by Enforcing the Agreement.

It has also been contended that by reason of the large 
number of colored families now occupying properties 
close to the 2200 block of Barclay street, the said block 
has already depreciated in value for occupancy by white 
people, and the value of said properties would be greatly 
increased by recognition of the invalidity of the agree­
ment referred to and the right of occupancy by negroes.

Even if this were true (and the record fails to disclose 
any testimony to support the contention), it would not



26

warrant a refusal by a court of equity to enforce the cove­
nant. The mere fact that a property would be more valu­
able if used for the purpose forbidden by a restrictive 
covenant does not justify the refusal of a court of equity 
to enforce the same.

In Allen v. Massachusetts Bonding & Ins. Co., 248 
Mass. 378, 143 N. E. 499, 502 (1924), action was brought 
in equity to enforce a restriction against digging a cellar 
beyond a certain depth. One of the defendant’s reasons 
for contending that the restrictions should not be en­
forced was that greater value would attach to the prop­
erty if free from the restriction. In holding that the 
covenant should be enforced, the court said:

4 4 The great increment in the value of the land of 
the defendant which will arise from refusal to en­
force this restriction is of slight if any consequence. 
The restriction was a matter of record in the chain 
of the defendant’s title and the defendant was bound 
by notice thereof.”

In Reeves v. Comfort, 172 Gfa. 331, 157 S. E. 629 
(Ga. 1931), it was held that restrictive covenants run­
ning with the land will not be set aside at the suit of an 
owner of a restricted lot against other owners of restrict­
ed lots on the ground that the property would be en­
hanced in value by annulment of restrictions.

In Noel v. Hill, 158 Mo. A. 426, 138 S. W. 364, 370, 
(1911), in a similar case, the court said:

44We have heretofore held in Spahr v. Cape, 143 
Mo. App. 114, 122 S. W. 379, that the mere fact that 
lots subject to building restrictions created by cove­
nants in the deed by which they were limited to use 
for residence purposes only, became more valuable 
or suitable for business than for residence purposes, 
is not in itself any ground justifying a court of 
equity in overturning and annulling such covenants.”



27

In Continental Oil Co. v. Fennemore, 38 Ariz. 277, 299 
P. 132, 135 (1931), the court said, in quoting from an 
earlier case:

44 ‘ The fact that apart from and surrounding the 
tract some business has grown up, and that the land 
has become more valuable in consequence, in no man­
ner entitles defendants to be relieved of the restric­
tions they have created. This condition is but the 
natural result of the improvement of the various 
tracts, and the fact that the property may have be­
come more valuable thereby for business purposes 
is immaterial. ’ ’ ’

To this effect also, see:
Evans v. Foss, 194 Mass. 513, 80 N. E. 587, 

(1907)
Reed v. Hazard, 187 Mo. A. 547,174 S. W. I ll, 

(1915)
Spahr v. Cape, 143 Mo. A. 114, 122 S. W. 379, 

(1909),
Drexel State Bank of Chicago v. O’Donnall, 

344 111. 173, 176 N. E. 348 (1931).

It is therefore submitted that even if the restricted 
properties would be more valuable if relieved of the re­
striction—which fact is in no wise admitted by the ap­
pellees, a court of equity would not be justified in refus­
ing to enforce the covenant on that ground.

CONCLUSION.
For the foregoing reasons it is respectfully submitted 

that the decree of the trial court should be affirmed.

J. S. T. WATERS,
WILLIAM L. MARBITRY, JR., 
ROBERT R. PORTMESS,

Attorneys for Appellee.





No. 28051

SUPREME COURT OF OHIO

STATE OF OHIO, E X  REL. THEODORE LEW IS and 
M ARY ELIZABETH LEW IS, parents and next friends 
of CHARLES ED W A R D  and THEALOU LEW IS, 
minors,

Relators-Appellants,
vs.

THE BOARD OF EDUCATION of the W ILM IN G TO N  
SCHOOL DISTRICT and HARRY W . HODSON, 
Superintendent of Schools, et al.

Respondents-Appellees.

BRIEF FOR APPELLANTS

Theodore M . Berry,
William A. McClain,

Of Lawson, Berry & McClain, 
Attorneys for Appellants.

Hubert T. Delany,
Belford V . Lawson, Jr.,
Thurgood P. Marshall,

Of Counsel.

Court Index Press, In c . -  Law  Printers -  Cincinnati, Ohio





INDEX

Page
Assignments of Error .................................................  1
Questions of Law Involved............................... ..........  3
Statement of Facts ........................ '....... ....................  4
Argument ---- .----- ------- --- ------ -................................  6
Judgment of Trial Court Contrary to Law ...... ....... 6
No Power to Assign Colored Children in Absence of

Express Authority .............................      8
Weaver Case Not Applicable in This Case ...............  14
Action of Board Contrary to Law and Constitution

of Ohio .................. ....................... ......... ........ . 15
Assignment by Race Violates Fourteenth Amend­

ment of United States Constitution .................. . 23
Error in Holding Mandamus Not Issuable .............  27
Error in Excluding Relevant Testimony ................... 28
Judgment in Prior Case Not Res Judicata ............... 30
Conclusion ........................        34
Appendix .........    39

CASES CITED

Berea College v. Kentucky, 211 U. S. 45 ....................  35
Bibb v. Alton, 179 111. 615 .................... ........................ 29
Bibb v. Alton, 193 111. 309, 312 ............................19, 28, 29
Board of Education v. State, 45 O. S. 555 .........3, 9, 27
Board of Education v. State, 114 O. S. 188 ____ 3, 9, 28
Board of Education v. Tinnon, 26 Kans. 1; 39 L.R.A.

1020 .................................................................. . 9
Board of Education v. Wickman, 80 O. S. 133; 88

N. E. 412 ................................................ .............  27
Buchanan v. Warley, 245 U. S. 60 ...............................  23
Cartwright v. Board of Education, 73 Kans. 32.......... 10



II.

Clark v. Board of Directors, 24 la. 266 .... .............— 12
Clark v. Maryland Institute, 87 Md. 643 ....................  22
Crawford v. District School Board, 68 Ore. 388; 137

Pac. 217 ........................................................ ....... 11
Dred Scott v. Sandford, 19 Howard (U. S.) 393 (1856) 15
Eastern School District v. Cincinnati, 19 Ohio 176,

191 ....................................-................................. 9
Ex Parte Virginia, 100 U. S. 339, 346 ........ ............  23
Gaines v. Canada, 305 U. S. 337, 350 ..........20, 23, 24, 28
Games v. McCann, 21 O. S. 198 .................. ...............15, 18
Gibson v. Board of Education, 2 O. C. C. 557 ...... —. 8
Gong Lum v. Rice, 275 U. S. 78 ........ ........................  18
Harlingen v. Board of Education, 104 O. S. 360; 136

N. E. 19 ................................................... -...........  27
Jones v. Newlon, 81 Colo. 25; 253 Pac. 386 ............. . 13
Knox v. Board of Education, 45 Kans. 152................ . 10
Milhoof v. Board of Education, 76 0. S. 297; 81 N. E.

Page

568 ..................................................................... . 27
Nixon v. Condon, 286 U. S. 73 ... ................ ...............  27
Patterson v. Board of Education, 11 N. J. Misc. 179 .... 13 
Pearson v. Murray, 169 Md. 478; 182 Atl. 590

.................. ...................13, 22, 24, 28
People v. School Board, 161 N. Y. 598; 56 N. E. 81......  19
Pierre v. Louisiana, 306 U. S. 354, 358 ..................... 17
Plessy v. Ferguson, 163 U. S. 537 .................... 18, 25, 26
Roberts v. New York, 295 U. S. 264 ............................. 24
Schwing v. McClure, 120 O. S. 335; 166 N. E. 230 ...... 8, 24
Smith v. Independent School District, 40 la. 518........  12
State v. Duffy, 7 Nev. 34............................................. 19
Steele Company v. Miller, 92 O. S. 115........................  25
Tape v. Hurley, 66 Calif. 473; 6 Pac. 129....................  11
Truax v. Corrigan, 257 U. S. 312 ............................... 26
United Heating v. State Building Commission, 124

O. S. 413; 179 N. E. 138 ...................................... 27
Ward v. Flood, 48 Calif. 36 ............................... ........ 19
Weaver v. Board of Trustees of Ohio State Univer­

sity, 126 O. S. 290 .............................................. 1, 3, 6
Woolridge v. Board of Education, Kans. 157 Pac. 1184 10



III.

Workman v. Board of Education of Detroit, 18 Mich.
400 ............. -........................................................... 11

Wright v. Board of Education, 295 Mo. 466; 246 S. W.
43 .................... -.......... -...................................... 21, 23

Wysinger v. Crookshank, 82 Calif. 588 .................11, 26
Yick Wo v. Hopkins, 118 U. S. 356 - ..... ....................  25

Page

CONSTITUTIONAL PROVISIONS AND STATUTES

29 Ohio Laws 422 - ..........................................   7
51 ” ” 429 ... ......... ....... ................................ 7
75 ” ” 513 ........................... .......................... 7
84 ” ” 34 ........... ..................................... . 7
Ohio Revised Statutes—Section 4008 ....................  7
Ohio Constitution—Article I Sections 1, 2, 7, 19__ 3, 20, 21

Article II—Section 1; Article VI
Section 2 .............. .................. 20, 21

Ohio General Code—Sections 7644; 7681; 7684; 7690;
7942 ; 7948; 12940 ......................................3, 7, 8, 14

United States Constitution—Fourteenth Amendment, 
Section I ............................................................... 4

TEXTBOOKS AND MISCELLANEOUS

Cardozo, Benjamin—“The Nature of the Judicial
Process” , pp. 21, 23, 151, 163 ........ ............15, 25, 37

10 American Jurisprudence 904 ...............................  8
12 American Jurisprudence 129, 271 .................... 23, 25
2 Freeman on Judgments (5th ed.) 1433, 1434, 1447,

1453, 1455, 1530, 1534, 1582, 1592,1594.... 31, 32, 33, 34
1 Jones On Evidence (4th ed.) 251 ...........................  29



IV.
Page

23 Ohio Jurisprudence 973, 974, 1003, 1008, 1015
..................................... 31, 32, 34

25 Ohio Jurisprudence 1006 ................. -................... 27
36 Ohio Jurisprudence 188, 189, 313, 316-318 ..........7, 8
President’s Advisory Committee on Education 1939— 

“Special Problems of Negro Education” , p. 34,
152-153 ............................................................. 36, 37

Quillin, Frank U.—“The Color Line in Ohio,” Chap­
ter II ..................................................................  6

15 Ruling Case Law 955, 964, 982, 984, 1015, 1016
......... .................................. 31, 32. 34

24 Ruling Case Law, 562, 565, 569, 575 ............. 8, 23, 27



SUPREME COURT OF OHIO
No. 28051.

State of Ohio, ex rel. T heodore L ew is  and Mary E liza­
beth Lew is , parents and next friends o f  Charles 
Edward and T healou L ew is , m inors,

Relators-Appellants, 
vs.

T he Board of Education of the  W ilmington School D is­
trict and H arry W . H odson, Superintendent of 
Schools, et al.

Respondents-Appellees.

ASSIGNMENTS OF ERROR
First : The Court of Appeals erred in holding that a

writ of mandamus was not the proper and available 
remedy under the circumstances of this case.

Second: The Court of Appeals erred in its construc­
tion of Ohio General Code Sections 7684 and 7690 to 
include the power to make assignment of students ac­
cording to race.

T hird : The Court of Appeals erred in following and
interpreting the decision of the Supreme Court in the 
Case of State ex rel Weaver v. Board of Trustees of Ohio 
State University, 126 O.S. 290 as granting authority to 
Boards of Education to classify students by race.

Fourth : The decision of the Court of Appeals is er­
roneous in that it is contrary to the Constitution, estab­
lished law and public policy of the State of Ohio.



2

F if t h : The decision of the Court of Appeals is er­
roneous in that it is in conflict with and violative of the 
Fourteenth Amendment (Section I) of the Constitution 
of the United States.

Six t h : The Court of Appeals erred in excluding rele­
vant and admissible testimony to the prejudice of Ap­
pellants.

Seventh : The Court of Appeals erred by hastening
and obstructing the trial to the prejudice of appellants.



3

BRIEF FOR APPELLANTS

QUESTIONS OF LAW INVOLVED
This cause is appealed on question of law to the Su­

preme Court from an original proceeding and decision 
in the Court of Appeals for the First Appellate District 
of Ohio and involves the following legal questions:

1. In the absence of express legislative enactment by 
the State of Ohio providing for separate schools accord­
ing to race, does not the action of a board of education in 
assigning Colored students to a separate school resulting 
in segregation by race constitute a violation of general 
law and the Constitution of the State of Ohio, Article I 
Section 1, 2, 7, 16, 19 and Artcle II Section 1?

2. Does the statutory authority given to boards of edu­
cation under Ohio General Code 7684 to assign pupils 
include the power to make such special assignments as 
result in the segregation of Colored children in a sepa­
rate school?

3. Does the decision of the Supreme Court in the case 
of State ex ret Weaver v. Board of Trustees of Ohio State 
University, 126 O.S. 290 overrule the cases of Board of 
Education v. State, 45 O.S. 555 and Board of Education v. 
State, 114 O.S. 188 and establish the power of a board of 
education to consider race as a basis in making assign­
ments of students?

4. Is not the special assignment of Colored pupils by 
a board of education under circumstances not applicable 
alike to all pupils irrespective of their race or color such 
an abuse of the discretionary power to make assignments 
of pupils and a violation of law as to entitle appellants 
to the remedy of mandamus?



4

5. In the absence of express legislative enactment by 
the State of Ohio to provide for separate schools accord­
ing to race, does not the action of a board of education 
in assigning Colored students to a separate school re­
sulting in segregation by race constitute a violation of 
Section I of the Fourteenth Amendment of the United 
States Constitution?

STATEMENT OF FACTS
The facts in this case are presented by stipulation of 

counsel and oral testimony of witnesses during the trial.
The Board of Education of the Wilmington School 

District, a corporate body, maintains and operates four 
elementary schools within the district. One of these 
schools, Midland School, has a teaching staff and student 
body composed entirely of Colored persons, and the re­
maining three schools are composed entirely and only of 
White teachers and pupils.

The Relator-Appellants, Theodore Lewis and Mary 
Elizabeth Lewis are citizens of Ohio and the United 
States and residents of the Wilmington School District 
and have two minor children, Charles Edward, age 9 
years and Thealou Lewis, age 6 years, eligible for enroll­
ment to an elementary school; both appellants and their 
children are Colored persons. At the beginning of the 
school term September 5th, 1939 appellants presented 
their two children for enrollment and admission at the 
Smith Place School, the one nearest their home and 
attended by the White children in the immediate neigh­
borhood; the appellants’ children were refused admis­
sion and were told they would have to attend the Mid­
land School. Appellants continued to present their chil­
dren to Smith Place School and the Main School, the



5

next nearest school to their home and were at all times 
refused admission.

All Colored children, except those of appellants, attend 
Midland School, and prior to October 11th, 1939 all those 
living in the section near appellants home were obliged 
to walk a distance of one and a quarter miles past Smith 
Place School and Main School through the business sec­
tion of the City and across two railroads to attend the 
Midland School.

On October 7th, 1939, pursuant to an affidavit issued 
by a school attendance officer Theodore Lewis was ar­
rested and placed in jail for failure to send his children 
to school, notwithstanding that the children had been re­
peatedly presented to Smith Place School and Main 
School and were refused admission.

On October 11th, 1939, after appellants continued to 
present their children for admission to the two schools 
nearest their home, the Board of Education at a special 
called meeting adopted a motion that “Thealou Lewis 
and Charles Edward Lewis be assigned to the Midland 
School”. And on the same date the Board of Education 
adopted a resolution to provide bus transportation for 
pupils residing more than a mile from the school they 
attended.

On October 18th, 1939 appellants filed their petition 
in the Court of Appeals for the First Appellate District 
for a peremptory writ of mandamus to compel the 
Board of Education, Superintendent and Principal to 
admit and enroll Charles Edward and Thealou Lewis to 
the Smith Place School or other school of the district 
under conditions applicable to all youth regardless of 
race or color. The Court of Appeals after trial denied 
the writ of mandamus from which this appeal on ques­
tions of law is taken.



6

ARGUMENT

I.

The Judgment and Order of the Trial Court are Contrary 
to the Law Applicable to the Case.

The Court of Appeals of the First Appellate District 
in the instant case based its opinion and judgment on 
the doctrine of the case of State ex ret Weaver v. Board of 
Trustees of Ohio State University, 126 O.S. 290 (1933), 
and concluded that by reason of that decision a board 
of education under its general powers to assign pupils is 
also delegated the authority to consider racial differences 
in making assignments. We submit the lower Court was 
in grave judicial error and expressed a reactionary social 
view.

A. T he Legislative P olicy of Ohio R epudiates the 
D octrine of R ace Classification.

It cannot be said that the State of Ohio has at all times 
followed a liberal policy in treatment of its Colored 
citizens. The infamous “Rlack Laws” in varied forms 
were in force from 1804 to 1849 and imposed humilia­
tions and civil disabilities upon all persons of color in the 
State.1

In reference to education the State of Ohio has ex­
perienced three stages as it applied to Colored children. 
At first no provision was made for their education, not­
withstanding the Constitution of the State imposed a 
duty upon the General Assembly to provide “a thorough

Quillin, Frank U. “ The Color Line in Ohio” — Univ. of Michigan 
Studies (1913) Chap. II.



7

and efficient system of common schools throughout the 
State” (Article VI Section 2) (See 29 0. L. 422)

The second stage was the period when the General 
Assembly by statute required the establishment of sepa­
rate schools for Colored children (51 O. L. 429 March 14, 
1853). Later the Act of 1878 (75 0. L. 513; Rev. Stat. Sec. 
4008) provided:

“When in the judgment of the board (of edu­
cation), it will be for the advantage of the dis­
trict to do so, it may organize separate schools 
for Colored children; * * *.”

Even this “separation law” was discretionary and not 
mandatory. See: 36 O. Jur. 316, 317, 318.

The third stage began when the law granting the 
power to establish separate schools (Rev. Stat. Sec. 4008 
supra) was repealed by the General Assembly on Feb­
ruary 22, 1887 (84 O. L. 34). Thereby separate schools 
for Colored children were abolished and the legislative 
policy clearly established by the State of Ohio.

Moreover, the positive aspect of the new legislative and 
public policy of the State was expressed by the enact­
ment of the Civil Rights Law (Ohio General Code Section 
12940) on February 7, 1884 (81 O. L. 15). This law was 
intended to assure the Colored citizen every civil right 
in places of public accomodation as all other citizens 
irrespective of his color.

We call upon this Court to take judicial cognizance 
of the fact that by constitutional provisions and statu­
tory law of this State public schools are institutions of 
public accommodation, and within the meaning of Ohio 
General Code Section 12940 the judgment of the trial 
court is erroneous.



8

B. I n  the Absence of Express A uthority the  Board of 
Education of W ilmington Has N o P ower to A ssign 
A nd Separate Colored Children in  Only  One Ele­
mentary School and Exclude T hem  From A ll Other 
Schools.

The authority of a board of education is derived solely 
from statute, both duties and authority being clearly 
defined by legislation and is limited strictly to such pow­
ers as are expressly granted or clearly implied.

36 0. Jur. 188, 189
24 R. C. L. 562, 565, 569
Schwing v. McClure, 120 0. S. 335; 166 N. E.

230

By Ohio General Code Sec. 7690 it is provided:
“Each city * * * board of education shall

have the management and control of all the 
public schools * * * in the district.”

And by O. G. C. 7684 it is provided:
“Boards of education may make such an as­

signment of the youth of their respective dis­
tricts to the schools established by them as in 
their opinion best will promote the interests of 
education in their districts.”

Nothing in either of these sections gives express authori­
ty to make assignments by race. On the contrary it has 
been held that unless there is some statute explicitly giv­
ing the right to make a distinction of this kind, it would 
be contrary to the spirit of the law and unauthorized.

36 0. Jur. 313
10 Amer. Jur. 904
State ex ret Gibson v. Board of Education,

2 O.C.C. 557



9

In the absence of statutory authority, White and Colored 
children are equally entitled to, and must be admitted to 
the same schools upon the same terms without distinction 
on account of color.

State ex ret Eastern School District v. Cin­
cinnati, 19 Ohio 178, 191

The leading, and we submit controlling case in this 
State is Board of Education of Oxford v. State, 45 O. S. 
555 (1888). That case was a proceeding in mandamus 
to compel the board of education to admit relators’ chil­
dren to a common school from which they had been 
excluded by the board under a resolution requiring all 
Colored children to attend a separate school. The Court 
in awarding a peremptory writ, per curiam, said:

“Whilst under the later section (Rev. Stat.
4013 and same as 0. G. C. 7684) power is con­
ferred on boards of education to make such as­
signments of the youth in their respective dis­
tricts, such power cannot be exercised with ref­
erence to the color or race of the youth; and 
Section 4008 having been repealed * * *
February 22, 1887 (84 O. L. 34) separate schools 
for Colored children have been abolished and no 
regulation can be made under Section 4013 
(O.G.C. 7684), that does not apply to all chil­
dren irrespective of race or color.” (Italics ours)

And this case was followed unanimously in Board of 
Education of Dayton v. State ex rel Reese 114 O. S. 188 
(1926)

We may well consider the weight of authority on this 
issue outside of Ohio.

One of the most important cases on this point is the 
case of Board of Education v. Tinnon, 26 Kans. 1, 39



1 0

L.R.A, 1020 (1881). In this case the pleadings were so 
framed and admissions were so made that the only 
question pi-esented to the Supreme Court of Kansas was 
“whether the board of education of a city of the second 
class has the power to establish separate schools for 
White and Colored children, and to exclude Colored chil­
dren from the schools established for White children for 
no other reason than that they are Colored children”. 
The board of education sought to justify its ruling con­
cerning the establishment of separate schools under a 
Kansas statute providing that:

“The board of education shall have power to 
elect their own officers, except the treasurer; to 
make their own rules and regulations, subject to 
the provisions of this article; to organize and 
maintain a system of graded schools; to estab­
lish a high school whenever in their opinion the 
educational interests of the city demand the 
same; and to exercise the sole control over the 
schools and school property of the city.” (26 
Kans. at p. 16)

After a careful consideration of the entire question in 
its opinion the Supreme Court of Kansas followed the 
precedent that:

“It must be remembered that unless some stat­
ute can be found authorizing the establishment 
of separate schools for Colored children, that no 
such authority exists; and we have been unable 
to find any such statute, and none has been 
pointed out to us.” (26 Kans. at p. 23)

See also: Knox v. Board, 45 Kans. 152 (1891) 
Cartwright v. Board of Education, 73 Kans.

32 (1906)
Woolridge v. Board, 157 P. 1184, 98 Kans.

397 (1916)



11

The question as to what the legislature might have 
done is beside the point; the administrative authority 
cannot take unto itself legislative functions.

Tape v. Hurley, 68 Calif. 473, 6 P. 129 (1885)
See also: Wysinger v. Crookshank, 82 Calif.

588 (1890)

In the case of Crawford v. District School Board, 68 Ore. 
388, 137 P. 217, (1913), the Supreme Court of Oregon 
granted mandamus to an Indian child for admission to 
the “White” school stating in its opinion that:

“When the state legislature has not passed an 
act expressly authorizing them to do so, school 
boards, created for carrying on the public 
schools of the state, have no lawful power to pro­
vide separate schools for the education of White 
and Colored children.” (137 P. at p. 220)

The same rule was applied in Michigan in 1869 in the 
case of Workman v. Board of Education of Detroit, 18 
Mich. 400 (1869). The statutes of Michigan provided 
that:

“All residents of any district shall have an 
equal right to attend any school therein; Pro­
vided that this shall not prevent the grading of 
schools according to the intellectual progress of 
the pupils, to be taught in separate places when 
deemed expedient.”

The Supreme Court of Michigan granted a writ of man­
damus to a Negro on the following grounds:

“It cannot be seriously urged that with this 
provision in force, the school board of any dis­
trict which is subject to it may make regula­
tions which would exclude any resident of the



12

district from any of its schools, because of race 
or color, or religious belief, or personal peculiari­
ties. It is too plain for argument, that an equal 
right to all the schools, irrespective of all such 
distinctions, was meant to be established.” (18 
Mich, at p. 409)

The ruling was established in Iowa in 1888 by the case 
of Clark v. Board of Directors, 24 Iowa 266, where the 
Supreme Court of Iowa granted a peremptory writ of 
mandamus, the court in its opinion stating that:

“Our statute has expressed the sovereign will, 
that all the youths of the State between the ages 
of five and twenty-one years shall be entitled to 
the privileges and benefits of our common 
schools, and it is not competent for the board of 
directors to resist the sovereign will and declare, 
that, since ‘public sentiment in their district is 
opposed to the school’ they will deny equal privi­
leges to some of the youths.” (24 Iowa at p. 276)

“In other words, all the youths are equal be­
fore the law, and there is no discretion vested in 
the board of directors or elsewhere to interfere 
with or disturb that equality. The board of di­
rectors may exercise a uniform discretion equal­
ly operative upon all, as to the residence, or 
qualifications, or freedom from contagious dis­
ease, or the like, of children, to entitle them to 
admission to each particular school, but the 
board cannot, in their discretion, or otherwise, 
deny a youth admission to any particular school 
because of his or her nationality, religion, coloi', 
clothing, or the like.” (24 Iowa at p. 277)

See also: Smith v. Independent School District,
40 Iowa 518 (1875)



13

Local school officials are not only prohibited from es­
tablishing separate schools without express statutory au­
thority but are also prohibited from setting up separate 
classes in the same school. The establishment of sepa­
rate swimming classes in a public school of Trenton, 
New Jersey, was declared unlawful by the New Jersey 
Supreme Court in 1933. The opinion in this case stated 
that:

“It appears that the Trenton board of educa­
tion provides a course in swimming in the new 
central high school. Although there is no dis­
crimination between races in the class room or 
the gymnasium, the Colored youth are not per­
mitted to take swimming lessons, except with 
those of their own race. Such action is discrimi­
nation. Boys or girls enrolled in a class in the 
public schools of this state are entitled to receive 
instructions, without any discrimination, predi­
cated upon race. To say to a lad you may study 
with your classmates, you may attend the gym­
nasium with them, but you may not have swim­
ming with them because of your color, is unlaw­
ful discrimination.” Patterson v. Board of Edu­
cation, 11 N. J. Mise. 179 (1933) See also: Jones 
v. Newton, 81 Colo. 25, 253 Pac. 386, 50 A.L.R.
1263 as to social functions.

In the case of Pearson v. Murray, 169 Md. 478, 182 A. 
590 (1936), the Court of Appeals of Maryland affirmed 
the ruling of the lower court granting mandamus to a 
qualified Negro applicant for admission to the Law 
School of the University of Maryland. Statutory pro­
vision was made in Maryland for the establishment of 
separate elementary and high schools but there was no 
provision authorizing separate universities. In granting



14

the writ of mandamus the Court of Appeals of Maryland 
held that:

“But in Maryland no officers or body of officers 
are authorized to establish a separate law school, 
there is no legislative declaration of a purpose to 
establish one, and the Courts could not make the 
decision for the State and order its officers to 
establish one. Therefore the erection of a sepa­
rate school is not here an available alternative 
remedy.” (182 A. at p. 594)

C. T he W eaver Case is Not A pplicable Nor D ecisive of 
the Question Involved in T his Case.

1. The reasoning and interpretation made by the Court 
of Appeals in the instant case in attempting to construe 
the Weaver Case as authority to boards of education to 
make racial assignments stretches the doctrine of j udicial 
precedent to the breaking point.

The facts, issues, and rationale of the Weaver Case are 
entirely different. The case was primarily decided on 
the “social status theory” and construed Sections 7942 and 
7948 of the Ohio General Code, while we are concerned 
here with the rights, privileges, duties and powers of the 
parties under Sections 7644, 7681 and 7684 of the General 
Code.

2. To avoid future confusion and errors the decision 
in the Weaver Case should be repudiated and overruled 
by this Court. The opinion in that case appears to be 
based more on social expediency than sound reasoning 
and prevailing judicial precedent. The Court in the 
Weaver Case chose to disregard the clearly established 
legislative policy of the State by repeal of the separation 
statute and all other Black Laws and its positive action 
in enacting the Civil Bights Law. Moreover, the Court



15

based its decision upon Games v. McCann, 21 O. S. 198 
(1871) which was decided at a time when the law of the 
State provided for separate schools according to race, 
but had been overruled and repudiated by repeal and 
two Supreme Court decisions in 1888 and 1926. We 
submit that the Games Case had no more merit or valid 
basis for use in deciding the Weaver Case than the Dred 
Scott Decision. The latter might have been better used 
to serve the end desired, if expediency rather than jus­
tice was the end sought.

The majesty of justice commands that prior decisions 
be overruled when manifestly erroneous. “That court 
best serves the law which recognizes that the rules of 
law which grew up in a remote generation may, in the 
fullness of experience, be found to serve another genera­
tion badly.”

Cardozo—“The Nature of the Judicial Pro­
cess” p. 151. \

II

The Action of the Board of Education and Superintend­
ent of Schools in Assigning Appellants’ Children 
to a Separate School and Excluding Them From all 
Other Schools is Contrary to the Laws and Consti­
tution of Ohio.

A. T he Board of Education has no A uthority to A ssign 
P upils to Separate Schools A ccording to R ace in 
the A bsence of E xpress Statutory A uthority.

The argument on this aspect of the case has been set 
forth in full with adequate supporting authority cited in 
Section I B of this brief. To repeat it at this point would



16

be to risk redundancy, however we call the Court’s at­
tention to this section of the brief for purposes of em­
phasizing this phase of the case.

In view of the established legislative policy of the State 
of Ohio as expressed in the enactment of the Civil Rights 
Law (1884) and the repeal of the separate school law 
(1887) together with the prevailing weight of judicial 
authority, we submit this Court cannot hold otherwise 
than that the policy and practice of assigning the children 
of appellants and all other Colored children similarly 
situated to a separate school and x-efusing them admis­
sion to all other schools was unlawful. This Court must 
with clarity and finality repudiate the meaning and ex­
tension of authority given to the Weaver Case by the 
Court of Appeals and reaffirm the well established princi­
ple that the power of a school board to assign pupils does 
not imply or confer the authority to consider race as a 
basis for making assignments.

If the Court omits to decide this question unequivocally 
it will condone the arrogation of legislative powers by 
administrative bodies and throw wide the door to racial 
discrimination and segregation and all forms of undemo­
cratic abuses. The social progress and racial good will 
developed in the past half century in Ohio will be lost.

We are constrained to caution the Court against sophis­
ticated contentions.

1. The school authorities insist that the assignment 
made of appellants’ children was not based on color, but 
in line with an effort to equalize the per room attendance 
in the various schools.

This contention must be measured by its reasonable­
ness and its result; in both it fails. It is within the prov-



17

ince of the Court to search and look behind the record to 
determine truth.

Pierre v. Louisiana 306 U. S. 354, 358 (1938)

(a) Every grant of discretionary power implies a 
reasonable exercise of that discretion and any arbitrary 
or unreasonable use thereof is an abuse and should be 
corrected by the Courts. Thus, in order to attain the so- 
called per room attendance equalization, the Board of 
Education assigns White pupils living on Grant Street 
in the immediate vicinity of Midland School to other 
schools, and insists that all Colored children residing on 
Grove Street and Thorne Street, more than a mile and a 
quarter from Midland School, to travel through the con­
gested section of the City and across two railroads to at­
tend Midland School. We submit this violates all rules 
of reasonableness. Moreover, it ignores the guiding 
principles of safety, health and welfare of the pupils sub­
jected to such a rule. (See Bill of Exceptions pp. 17, 18, 
25 and map exhibit).

(b) The so-called effort to “equalize per room attend­
ance” is in fact a pretext and lip excuse to cloak an ac­
tual unlawful practice of racial segregation. The records 
prove this is not being attempted or accomplished in 
fact. In the first grade at Main School there are 25 pupils, 
at Smith Place School 27 pupils, and at Midland School 
only 11 pupils (all Colored). At the Main, Smith Place 
and East End Schools the total enrollment in each is 
approximately 200 pupils (all White) and at the Midland 
School 71 pupils (all Colored).
Will this Court permit such sophistry to confuse the 

issue? Does this not establish clearly an intent and prac-



18

tice to segregate according to color? In the final analysis 
the gravamen of this cause is the result and effect of the 
Board of Education’s action and practice, not its motive, 
rationale, or alleged good faith. This Court must pierce 
the veil of sophisticated pretext in order for truth and 
justice to prevail.

It is significant that at no place in the minutes of the 
Board of Education from 1937 to date of trial is there any 
reference made to a policy or program of equalizing at­
tendance or correcting over-crowded conditions. The 
only reference to assignment of any pupils in the entire 
School District specifically names appellants’ children. 
A professed good intention cannot remedy a harmful re­
sult.

2. The school authorities insist that the accomodations 
and facilities at Midland School are equal and thereby 
the question is settled.

On the contrary we contend that such contention is an 
admission of all we contend, namely that Midland School 
is maintained solely as a separate and segregated school 
and is unlawful.

We submit that “equality of accomodation” is not a 
relevant issue in this cause for the reason that there is no 
law in Ohio providing for separate schools. The ques­
tion of equal and separate facilities arises only where 
there is a specific statutory authority for the establish­
ment of separate schools.

Plessy v. Ferguson 163 U. S. 537 
Gong Lum v. Rice 275 U. S. 78

The case of Games v. McCann 21 O. S. 198 with its 
“classification” theory cannot be followed because it was 
based upon an existing law providing for separate schools 
which has since been repealed.



19

A leading and controlling case on this question is 
People ex rel Bibb v. Alton, 193 111. 309, 312, (1901) in 
which the Supreme Court of Illinois held:

“The complaint of the relator is that his chil­
dren have been excluded on account of their 
color, from the public school of said City located 
near his residence and been required to attend 
a school located a mile and a half distant from 
his residence, established exclusively for Colored 
children. Such complaint is not met by showing 
that the schools established for Colored children 
in said City equal or surpass in educational fa­
cilities the schools established in said City for 
White children. Under the law the Common 
Council of said City had no right to establish 
different schools for White children and Colored 
children of said City and to exclude the Colored 
children from the schools established for White 
children, even though the schools established for 
Colored children furnished educational facili­
ties equal or superior to those of the schools es­
tablished for White children.” (Italics ours)

The same Court adds further at page 313:
“No reason appears in this record for the ex­

clusion of said children or their assignment to 
the Lovejoy School, other than their color. Such 
exclusion in law amounted to discrimination 
against the children of relator on account of 
their color” .

See also: Ward v. Flood 48 Cal. 36 
State v. Duffy 7 Nev. 342 
People v. School Board 161 N. Y. 598; 36 

N. E. 81

3. The Board of Education contends that since bus 
transportation has been made available there is no reason 
to complain.



2 0

It is to be noted by the Court that this bus transporta­
tion was provided on October 11,1939 only after Theodore 
Lewis had been jailed for not sending his children to 
Midland School and the issue was made a public scandal. 
We submit that providing bus transportation is a further 
admission of all that appellants contend. Since, in fact, 
the bus serves only Colored children to carry them to 
Midland School it is a conclusive admission that Midland 
School is a segregated school for Colored.

Providing bus transportation may mitigate the dis­
crimination and segregation, but does not cure or re­
move its unlawful nature.

Missouri ex rel Gaines v. Canada 305 U. S.
337, 350 (1938)

B. T he A ction of the Board of Education in  A ssigning 
Appellants’ Children to a Separate School and 
Befusing A dmission to all Other Schools is in 
V iolation of the Constitution of Ohio.

1. It violates Sections 1, 2, 7, 19 of Article I, Section 1 
of Article II and Section 2 of Article VI of the Ohio Con­
stitution. These sections provide:

Article I—Section 1:
“All men are, by nature, free and independent, 

and have certain inalienable rights, among which 
are those of enjoying and defending life, liberty, 
acquiring, possessing, and protecting property, 
and seeking and obtaining happiness and safety” .

Article I—Section 2:
“All political power is inherent in the people. 

Government is instituted for their equal pro­
tection and benefit, * * *”



2 1

Article I—Section 7:
“ * * * , it shall be the duty of the General As­

sembly to pass suitable laws * * * to encourage 
schools and means of instruction.”

Article I—Section 19:
“Private property shall ever be held inviol­

ate, * * *”

Article II—Section 1:
“The legislative power of the State shall be 

vested in a general assembly * * * ”

Article VI—Section 2:
“The General Assembly shall make such pro­

visions * * * as * * * will secure a thorough 
and efficient system of common schools through­
out the state * * *”

2. The rule of the Board of Education and Superin­
tendent imposed upon appellants’ children which does 
not apply to all others equally irrespective of color or 
race:

(a) Constitutes an infringement upon his consti­
tutional right of freedom and independence.

(b) Constitutes an unwarranted limitation upon 
his property right since the right to share and 
participate in the public school system is a 
property right.

In Wright v. Board of Education, 295 Mo. 466; 246 S.W. 
43 (1922) the Court said:

“ * * * the public school system owes its exis­
tence and perpetuity to taxes drawn from the



2 2

people; in a sense therefore the citizen may be 
said to have a proprietary interest in the system.

This is true not only in a pecuniary sense in 
that he contributes annually to its support but 
on account of the advantages extended to his 
children, who, within the contemplation of the 
law, are entitled without stint or distinction, to 
whatever rights and benefits the system affords” . 
(Italics ours).
(c) Deprives him of equal protection and benefits of 

the law.
(d) Usurps and arrogates legislative power which 

exclusively is vested in the General Assembly.

In the case of Clark v. Maryland Institute, 87 Md. 643 
(1898) the Court was called upon to construe a consti­
tutional provision similar to Article VI Section 2 of the 
Ohio Constitution, and at page 662 said:

“The Constitution of this state requires the 
General Assembly to establish and maintain a 
thorough and efficient system of free public 
schools. This means that the schools must be 
open to all without expense. The right is given 
to the whole body of the people. It is justly 
held by the authorities that to single out a cer­
tain portion of the people by the arbitrary stan­
dard of color, and say that these shall not have 
rights possessed by others, denies them equal 
protection of the laws”.
See also: Pearson v. Murray, 169 Md. 487, 

A.L.R. 706 (1936).
103



23

III.

The Assignment of Appellant’s Children to Midland 
School on Conditions not Applicable to all Pupils 
Alike Irrespective of Race or Color Violates Section 
I of the Fourteenth Amendment of the United States 
Constitution.

A. It D eprives A ppellants of P roperty W ithout D ue 
P rocess of L a w .

1. The action of the Board of Education is State ac­
tion within the meaning of the Fourteenth Amendment. 
School districts and boards of education are agents of the 
State for the sole purpose of administering the state sys­
tem of public education.

24 R.C.L. 562, 565
Ex Parte Virginia—100 U.S. 339, 346 (1879) 
Pearson v. Murray, 169 Md. 478; 103 A.L.R. 706 

(1936)
Gaines v. Canada, 305 U.S. 337.

2. The property interests protected by the due process 
clause include not only physical possession but all rights 
of use and enjoyment.

Buchanan v. Warley, 245 U.S. 60 (1917)
Wright v. Board of Education, 295 Mo. 466; 246 

S.W. 43 (1922).

3. The due process clause is intended to protect the 
citizen against arbitrary deprivation of his rights or prop­
erty. It is a limitation upon arbitrary power and a guar­
anty against arbitrary legislation.

.12 Amer. Jur. 271.



24

4. To the extent that the Board of Education and Su­
perintendent have arbitrarily, and without legislative 
authority, assigned appellants’ children to a separate and 
segregated school and denied their admission in any 
other school thereby appellants have been deprived of a 
proprietary right without due process of law.

5. And the refusal of the trial court to issue a writ of 
mandamus in effect ratified, confirmed, and endorsed the 
deprivation of appellants property by the arbitrary, un­
lawful, and unconstitutional acts of appellees, and there­
by amounted to depriving appellants of their property 
without due process of law.

12 Amer. Jur. 274
Roberts v. New York, 295 U.S. 264.

B. T he Arbitrary A ction of the  B oard of Education 
and Superintendent A gainst A ppellants’ Children 
A mounts to a Denial of Equal P rotection of th e  
Law s .

The acts of a board of education, being a creature of 
the State is state action within the meaning of the Four­
teenth Amendment.

Pearson v. Murray, 169 Md. 478; 182 At. 590 (1936) 
Gaines v. Canada, 305 U.S. 337.

This Court is called upon to consider and apply the 
constitutional guaranty of equal protection of the laws 
from a fresher and broader point of view than hereto­
fore given in the majority of cases dealing with questions 
of race. The Court is challenged to break with the nar­
row social concept that shaped judicial thought in past 
decisions. It becomes a test as to whether a modem 
Court will with discernment break with the rigid tradi­
tion of judicial precedent and pronounce a new and more



25

liberal doctrine to meet the advanced social thought of our 
times.

“We have to distinguish between the prece­
dents which are merely static, and those which 
are dynamic—and subordinate precedent to jus­
tice”. Cardozo, The Nature of the Judicial Pro­
cess. p. 163.

In general it has been held that the guaranty of the 
equal protection of the laws means that no person or 
class of persons shall be denied the same protection of 
the laws which is enjoyed by other persons or other 
classes in like circumstances.

12 Amer. Jur. 129 (cases cited)
“Equal protection of the laws is a pledge of the 
protection of equal laws”.

Yick Wo v. Hopkins, 118 U.S. 356.

The guiding principle is that this constitutional guar­
anty requires that all persons shall be treated alike, under 
like circumstances and conditions, both in privileges con­
ferred and in liabilities imposed.

12 Amer. Jur. 129
Steele Co. v. Miller, 92 O.S. 115.

However, when this broad principle has been applied 
to the question of race and equal protection of the laws 
earlier decisions have drawn a distinction. Thus it was 
held that the 14th Amendment guarantees equality and 
not identity of rights.

Plessy v. Ferguson, 163 U.S. 537.

And race and color have been recognized as a proper 
basis for classification under laws providing for separate 
accomodations.



26

But in every instance wherein that distinction has been 
made the State law made a racial classification and pro­
vided for separate accomodations.

But see Justice Harlan’s dissent in Plessy v. Ferguson, 
supra pp. 554-564.

Thus the question posed by the instant cause is whether 
in the absence of a State law providing for racial clas­
sifications and separation in public schools, a board of 
education, being an administrative agency of the State, 
which adopts a rule classifying and assigning pupils to 
separate schools according to color does not by such acts 
deny the equal protection of the laws to those thus dis­
criminated against?

We submit that it is a denial of equal protection of 
the laws. Granting that it is within the power of the state 
of Ohio to enact a law providing for separate schools by 
race (which once it did), we contend that until it does 
so, it does not lie within the power or authority of any 
agency of the State to impose a rule or practice which in 
any way limits or denies the benefits of the present law 
unless that limitation applies equally to all similarly 
situated regardless of race, color or condition.

10 Amer. Jur. 902, 903.
Wysinger v. Crookshank, 82 Calif. 588 (1890)

Class legislation discriminating against some and fav­
oring others is what is prohibited by the equal protection 
clause of the Fourteenth Amendment to the Constitution. 

12 Amer. Jur. 140 
Truax v. Corrigan, 257 U.S. 312 
Yick Wo v. Hopkins, 118 U.S. 356



27

“The 14th Amendment, adopted as it was with 
special solicitude for the equal protection of 
members of the Negro race, lays a duty upon the 
Court to level by its judgment these barriers of 
color” . Cardozo, J.

Nixon v. Condon, 286 U. S. 73, 89 (1932)

IV

The Court of Appeals Erred in Holding That a Writ of 
Mandamus was not Issuable in this Case.

It is recognized that the lawful discretion vested in an 
individual or board cannot be controlled by the writ of 
mandamus.

But the lower court overlooked an equally settled ex­
ception to this rule, namely, that a writ of mandamus 
may issue to correct an abuse of discretion or violation 
of law.

25 O. Jur. 1006
24 R.C.L. 575
State ex rel. Harlingen v. Board of Education, 

104 O.S. 360; 136 N.E. 196
State ex rel. United D. Heating v. State Bldg. 

Com’ii., 124 O.S. 413; 179 N.E. 138
State ex rel. Milhoff v. Board of Education, 76

O.S. 297; 81 N.E. 568
Board of Education v. Wickman, 80 O. S. 133, 88 

N. E. 412.

It is settled law in Ohio and other jurisdictions that 
mandamus is the proper and available remedy to correct 
an abuse of discretion by a board of education to obtain 
admission to a school on equal terms with other children 
regardless of color.

Board of Education v. State, 45 O.S. 555; 16 N.E. 
373



28

Board of Education v. State, 114 O.S. 188; 151 
N.E. 39

Bibb v. Alton, 193 111. 309
Pearson v. Murray, 169 Md. 478
Gaines v. Canada, 305 U.S. 337.

We submit that it has been sufficiently shown earlier 
in this brief wherein the action of the Board of Education 
in this cause was both unlawful and an abuse of its dis­
cretionary power. For these reasons a writ of man­
damus was properly issuable and should have been grant­
ed under the circumstances of this case.

V

The Court of Appeals Committed Prejudicial Error in 
Excluding Revelant Testimony Offered by Appellants.
Error was made in sustaining appellee’s objections and 

refusing to permit answers to the following questions 
over appellants’ exceptions:

1. “What school would the Lewis children have been 
sent to or assigned to if they had been White children?” 
p. 16.

2. “That is immediately in the vicinity of the Midland 
School?” p. 18.

3. “As a matter of fact the Board of Education could 
very well dispense with Midland School and save con­
siderable money, couldn’t it?” p. 24.

4. In this plan of equalization, Mr. Hodson, have you 
or the Board of Education ever sent White students to 
Midland School to accomplish this equalization?” p. 25.

5. I will ask you if you had any conversation with 
Mr. Hodson with reference to admission of your children 
to the Smith Place School?” p. 29.



29

It is submitted that each of the above questions were 
relevant, proper and the testimony in response thereto 
was admissible.

Questions 1, 2 and 4 above were proper in every respect 
to determine the principal question at issue, namely, 
whether assignments were based on color.

“Where knowledge or intention of a person is 
in issue proof of matters which are apparently 
collateral is admissible. Obviously it happens 
that motive or intent can be shown in no other 
way since while a single act may leave the secret 
motives in doubt, such act in connection with 
others of same character may afford decisive 
proof and remove all uncertainty” .

1 Jones on Evidence (4th ed.) p. 251.

By refusing to permit the witness to answer the Court 
denied appellants of testimony which clearly would tend 
to establish the essence of the case—all to the appellants 
prejudice.

Further, by refusing to permit the witness Edna John­
son to testify as to her conversation with Mr. Hodson with 
reference to admission of her children to Smith Place 
(question 5 above and p. 29 Bill of Exceptions) the Court 
erred.

Remoteness in point of time does not necessarily ren­
der evidence irrelevant. And it is well settled that evi­
dence of prior acts and events are admissible to prove 
a general scheme, common plan, intent or motive.

In the case of Bibb v. Alton, 179 111. 615 (1899) an action 
in mandamus to compel admission of relator’s children 
to a public school from which it was alleged that they 
were excluded on account of color, it was held that the 
relator was not confined to proof of the motive for ex-



30

eluding his children alone, but might show that all Col­
ored children were likewise excluded from White schools.

It was held further that where the board made no pub­
lic record for their action in carrying out their design to 
keep Colored children out of White schools, the existence 
of such illegal motives might be established by other 
competent evidence.

We submit the Court improperly excluded competent 
evidence which would establish the true motives and facts 
in this case.

VI

The Judgment of the Court of Common Pleas of Clinton 
County in Case Number 14714 does not Constitute 
Res Adjudicata of the Instant Cause.

The concurring opinion of Presiding Judge Hamilton in. 
the trial Court sustains a plea of res adjudicata. In an­
ticipation of appellees argument on this question we sub­
mit the followng discussion.

A. T here I s No Identity of P arties or P rivies.

The right to an education in public schools is a 
personal right. In the former case an action was brought 
on behalf of Charles Edward Lewis; in the instant case 
action is brought in behalf of Charles Edward Lewis and 
Thealou Lewis by both parents and while it is a joint 
action; it is to assert their several personal rights to 
attend school. None can gainsay that a separate action 
could have been prosecuted for each child.

At the time of the prior action Thealou Lewis was not 
of school age and had no rights that were violated and 
the rules of privity cannot be applied to include her and 
bar her rights by the doctrine of res adjudicata.



31

“Privity is not established from the mere fact that per­
sons may be interested in the same question or in proving 
the same state of facts.”

15 R. C. L. 1016.

Privity denotes mutual or successive relationship to 
the same right of property, and is classified as privity in 
estate, privity in blood, and privity in law.

The right of Thealou Lewis to attend school is one 
created and given by the State and comes not by suc­
cession of estate or blood through either her brother or 
parents. The right exists regardless of her relations. 
Hence, the doctrine of privity contended for my Defend­
ants is inapplicable.

23 0. Jur. 1008, 1015.
15 R. C. L. 1015.

B. T here I s No Identity of Causes of A ction.

The defendants urge that because there appears to be 
an identity of subject matter that this constitutes res 
judicata. Such is not the rule.

Identity of subject matter is not essential to estoppel 
by judgment. The test for such estoppel is identity of 
causes of action and adjudication thereof.

There must be a distinction made between subject 
matter and cause of action, since the subject matter of 
two actions may be the same and yet the causes of action 
may be entirely different. New rights in the same sub­
ject matter may intervene between the two actions. “The 
facts which establish the existence of a right and its vio­
lation constitute the cause of action” . (See Freeman on 
Judgments (Vol. II) p.p. 1433, 1434, 1447.



32

The test of identity of causes of action, even when the 
matter in dispute may be the same in both actions (i. e. 
the same subject matter) is whether the same evidence 
would sustain both.

23 0. Jur. 973, 974.
15 R. C. L. 964.
Freeman on Judgments (Vol. II) p. 1447.

In the instant cause of action (i. e. the facts constitut­
ing a violation of plaintiffs’ rights) arose at the begin­
ning of the school year of 1939 in September and have 
continued by various acts of the School Board, Superin­
tendent and Principals in denying admission of plaintiffs’ 
children for reasons not applicable to all other children 
similarly situated regardless of their race or color. More­
over, the singular and remarkably different evidence 
existing in this cause of action not existent in the prior 
case is the formal action by motion of the Board of 
Education making a special classification and assign­
ment of plaintiffs’ children by name different from and 
not applicable to other children similarly situated.

This we submit constitutes separate and different 
causes of action wherein res judicata has no application.

Counsel for defendants insists that the same question 
or matter was in issue in the former case as in the present 
cause. But similarity of issues is not enough, it must 
clearly appear to have been adjudicated in the prior 
case. We submit that there was no such adjudication.

Freeman on Judgments (Vol. II) p. 4453 (Sec.
689), 1455.



33

C. T hat Case N umber 14714 W as Not A Judgment On 
T he Merits.

We call the Court’s attention to the decision of the 
Court of Common Pleas in Case No. 14714. The final 
language of the Court therein after reviewing the evi­
dence is “the petition will be dismised at his (plaintiff’s) 
cost.”

This raises the important question as to whether a dis­
missal of a petition for mandamus is a judgment on the 
merits within the meaning of the doctrine of res j udicata.

Freeman on Judgments (Vol. II - 5th ed.) p. 1582 says:
“Judgments merely of dismissal, whether vol­

untary or involuntary, in actions at law are not 
on the merits and do not operate as a bar or 
estoppel in subsequent proceedings involving the 
same matters. Even though they may under 
some circumstances be on the merits when they 
are not of such character, very clearly they do 
not bar a new action * * * Though the code
sections governing dismissals * * * pr0_
vides that in all cases other than those men­
tioned, the judgment must be on the merits, 
a judgment merely of dismissal, though not one 
of these particularly specified will not be treated 
as a judgment on the merits.” (Italics ours)

We submit that the language of the Courts decision in 
substance was a nonsuit for lack of sufficient evidence 
presented by plaintiffs.

And Freeman on Judgments (Vol. II) p. 1592 says:
“The granting of a non-suit is merely a ruling of law 

that plaintiff has not made a case * * * and deter­
mines no issues of fact. While it terminates the action 
it does not adjudicate its merits” * * * (p. 1594).

“A dismissal or non-suit not determining the 
rights of the parties cannot support the plea of



34

res adjudicata. Nor will the reasoning and 
opinion of the Court upon the subject, on the 
evidence adduced before it, have the force and 
effect of a thing adjudged, unless the subject 
matter be definitely disposed of by the judg­
ment.”

It is submitted that the Court in the former case ren­
dered no j udgment on the real issue in the cause, namely 
whether the Board of Education has abused its discre­
tionary powers and made a classification according to 
color, but instead dismissed the action for failure of 
proof by plaintiff which was not a judgment on the 
merits to constitute res judicata.

Freeman on Judgments (Vol. II) pp. 1530, 1534.
15 R. C. L. 955, 982, 984.
23 0. Jur. 1003.

CONCLUSION.
lhe record in this case shows clearly and conclusively 

that there has been an attempt on the part of the de­
fendants to assign all Negro students including the plain­
tiffs to Midland School irrespective of distance. We ad­
mit that this might be in keeping with traditions, cus­
toms and even with the prejudices of the citizens of Wil­
mington, Ohio; but this does not make such assignment 
lawful or just. Justice is found not in the strict adher­
ence to customs and traditions but in an honest attempt 
on the part of Courts to decide any given case in the 
terms of our democratic ideals.

In interpreting statutes Courts ought to adopt a con- 
stiuction, a limitation, or a definition not in accordance 
with undemocratic traditions and oppressive race preju­
dices but in accord with the ideals of our democracy. 
This thought was expressed by Justice Harlan’s dissent



35

in Berea College v. Commonowealth of Kentucky, 211 
U. S. 45 (1908) when he said:

“Have we become so inoculated with preju­
dice of race that an American government, pro­
fessedly based on the principles of freedom, 
and charged with the protection of all citizens 
alike, can make distinction between such citi­
zens in the matter of their voluntary meeting 
for innocent purposes simply because of their 
respective races? Further, if the lower Court 
be right, then a State may make it a crime for 
White and Colored persons to frequent the same 
market place at the same time, or appear in an 
assemblage of citizens convened to consider 
questions of a public or political nature in 
which all citizens, without regard to race, are 
equally interested. Many other illustrations 
might be given to show the mischievous, not to 
say cruel character of the statute in question, 
and how inconsistent such legislation is with 
the great principle of the equality of citizens 
before the law.”

A study of the present status of the separate school 
systems in eighteen states by the Advisory Committee on 
Education appointed by President Roosevelt reveals that 
separate schools do not provide equal opportunities. A 
survey of elementary and secondary schools in states 
maintaining separate schools is summarized as follows:

“The indexes presented in this chapter point 
to extreme differences in the educational oppor­
tunities of White and Negro children in the 
Southern States. In the numbers of children 
out of school; in the length of school terms; in 
the progress of pupils through the grades; in 
facilities for transporting pupils to school; in 
the pupil-loads of teachers, their educational 
qualifications, and their salaries; and finally,



36

in the adequacy of school plants and equip­
ment—“in all these respects there is reflected 
a program of public elementary and secondary 
education for Negroes which is far less exten­
sive than, and markedly inferior to, that af­
forded for the White population. “Special Prob­
lems of Negro Education”, prepared for the Ad­
visory Committee, Published by Government 
Printing (Mice, Washington, D. G., 1939, page 34.

A survey of the entire problem of Negro Education as 
compared with education in general leads to the follow­
ing conclusions:

“The significance of these educational in­
equalities lies in what they entail for the social 
effectiveness of the Negro citizens, and hence, 
for the general welfare of the Nation. Several 
considerations are pertinent in this regard.

“The most immediate effect of racial inequali­
ties in public elementary and secondary edu­
cation is reflected in the relative scholastic 
achievement of Negro children. There have 
been numerous studies of racial differences in 
scholastic achievement and their relationship to 
corresponding differences in school environment. 
They have demonstrated such facts as these:
(1) That the extent of racial differences in 
scholastic achievement varies markedly among 
different school systems; (2) that such dif­
ferences are greater in segregated than in non- 
segregated schools; (3) that there is close cor­
respondence between the extent of racial dif­
ferences in scholastic achievement and racial 
differences in school environment; (4) that dif­
ferences between the achievement of White and 
Negro pupils in Northern school systems are 
attributable almost entirely to scholastic defic­
iencies on the part of Negro migrants from im­
poverished school systems in the South; and (5)



37

that Negro graduates of Northern high schools 
maintain better scholastic records in South­
ern Negro colleges than do graduates of South­
ern Negro high schools. Such facts as these 
afford one basis for appraising the effective­
ness of traditional programs of education for 
Negroes in separate schools.” Ibid, pages 152- 
153.

True democracy in education can only be realized by 
guaranteeing to every United States citizen the right 
to have his child educated on the same basis as all 
other citizens. This can not be realized by establishing 
separate schools.

“Every new case is an experiment, and if the 
accepted rule which seems applicable yields a 
result which is felt to be unjust, the rule is re­
considered * * * The sentence of today will
make the right and wrong of tomorrow.”
Cardozo, J.—The Nature of the Judicial Process, 

p. 21, 23.

It is respectfully submitted that the order of the Court 
of Appeals dismissing the petition for a peremptory 
writ of mandamus should be set aside and that the lower 
Court be ordered to issue said writ as prayed for in the 
petition for writ of mandamus.

Respectfully submitted,
T heodore M. B erry,
W illiam  A. McClain ,

Of Lawson, Berry & McClain, 
Attorneys for Appellants.

Hubert T. D elany,
Belford V. L awson , Jr .,
Thurgood P. Marshall,

Of Counsel.





APPENDIX A.

COURT OF APPEALS
First Appellate District of Ohio. 

Clinton County, No. 126.

State of Ohio, ex rel. T heodore L ew is  a n d  Mary Eliza­
beth L ew is , as parents and next friend  o f  Charles 
Edward L ew is  and T hea L ou L ew is , m inors,

Relators,
vs.

The B oard of E ducation of T he W ilmington School 
D istrict, a Body Corporate of Wilmington, Ohio, 
et al.,

Respondents.

OPINION 
January 5th, 1940.

Messrs. Lawson, Berry & McClain, for Relators.
Messrs. Smith, Rogers & Kirk, for Respondents.

By T he Court:
This is a proceeding in mandamus in which the rela­

tors aver that the respondents have discriminated against 
their children on account of their race, in excluding 
them from Smith Street Public School of the School Dis­
trict of the City of Wilmington. They pray that the court 
award a peremptory writ, commanding the respondent 
school board to admit and enroll his children as students 
in the Smith Street School.



40

There are three school buildings in this school district. 
There is no claim that any one of these buildings was 
located or built with reference to or for the purpose of 
maintaining a separation of the races in the schools. 
Presumptively the determination to build and the loca­
tion of the sites were in the exercise of a sound discretion 
to promote the education of the youths of the district.

However, in the course of time, circumstances changed, 
so that most of the children of school age are now in 
close proximity to the Smith Street School, and, if mere 
convenience in getting to the school were allowed to con­
trol, the Smith Street School would be overcrowded, and 
the other schools would not be attended to anything like 
their capacity.

This condition caused the respondent to require some 
students living near the Smith Street School to attend 
the Midland School. The relator’s children refused to 
attend that school. The hoard refused to allow them to 
attend the Smith Street School. As the Midland School 
is about one and one-fourth miles from relator’s resi­
dence, the respondent has furnished transportation by 
automobile from the relator’s residence to the school, 
and has proferred to continue to supply such transporta­
tion.

One of the relators has refused to allow his children 
to attend the Midland School, which is a school attended 
largely, if not exclusively, by Negro children. There is 
no claim, however, that it is overcrowded, or that the 
educational facilities and opportunities furnished there 
are in any way inferior to those at the Smith Street 
School.

It clearly appears from this record that the respondent 
was entirely justified in requiring some students living



41

near the Smith Street school to attend some other school 
in the district. They chose the relator’s children as the 
ones to be educated elsewhere and chose the Midland 
School as the place where they should attend.

One of the questions presented is whether this court 
can control that discretion or substitute its discretion 
for that of the school board. We have reached the con­
clusion that the law has vested this discretion in the 
school board, and that it is beyond the power of the 
court to control that discretion by writ of mandamus.

The writ of mandamus should only be awarded to 
compel the performance of a duty specifically enjoined 
by law, such as a duty resulting from an office, station, 
or trust. 25 Ohio Jur. 974. The duty thus enforced must 
be mandatory—a nondiscretionary ministerial duty. Id., 
991, et seq. And the xfight must be clear. Id., 997. 
Assuming, without deciding, that the respondents may 
have been influenced by considerations of x’ace in the 
choice of relator’s children to attend the Midland School, 
rather than some other children living near the Smith 
Street School, it is clear that this court cannot say that 
the occasion did not exist for a choice to be made. 
Choice implies the exercise of discretion. This court has 
no power to make that choice or to direct the respondents 
as to how they shall make it. To require the respondents 
to admit and enx’oll the relators’ children in the Smith 
Street School would be to nullify the choice which the 
respondents had made to send these children to the Mid­
land School, which choice the court cannot say did not 
rest upon adequate legal grounds. The order would be 
tantamount to a direction to the Board of Education to 
transfer two other children from the Smith Sti’eet School 
to the Midland School. If the court did that it should



42

lay down the rule or standard by which the Board should 
be guided in making the selection. We know of no rule 
to be applied in making such a selection.

2. While it is conceded that the state has the power to 
establish separate schools, it is urged that it has not 
conferred any such power upon the board of education. 
The main sources of power of the board are found in 
Section 7684 and 7690, General Code. By Section 7690, it
is enacted that “Each city......board of education shall
have the management and control of all the public 
schools, of whatever class or character in the district.” 
By Section 7684, it is provided that “Boards of educa­
tion may make such an assignment of the youth of their 
respective districts to the schools established by them as 
in their opinion best will promote the interests of edu­
cation in their dstricts.”

Now assuming that the board of education was in­
fluenced in whole or in part by considerations of dif­
ference in race in assigning the relators’ children to Mid­
land School, do these sections delegate to it the authority 
of the State to take that fact into consideration? Coun­
sel for relators cite Board of Education v. State, 45 Ohio 
St., 555, and Board of Education v. State, 114 Ohio St., 
188, as authority requiring an answer in the negative. 
And had the Supreme Court not spoken later to the con­
trary, we would regard those cases as requiring a nega­
tive answer to the question. We believe the Supreme 
Court has so spoken in the case of State ex ret. Weaver v. 
Board of Trustees of Ohio State University, 126 Ohio St., 
290. In that case the court was required to determine 
the power of the board of trustees to consider race in the 
assignment of students taking the course of Home Eco­
nomics at the Ohio State University. The authority of 
the Board was found in Sections 7942 and 7948, General



43

Code. By Section 7942, it was enacted that: “The gov­
ernment of the Ohio State University shall be vested in 
a board of trustees”, and by Section 7948, that: “The
board of trustees may adopt by-laws, imles, and regula­
tions for the government of the University.” The Su­
preme Court held that the board of trustees had such 
power. The court cited the earlier case of Games v. 
McCann, 21 Ohio St., 198, which holds that a board of 
education has such authority, and at page 297 quoted, 
with approval, the following passage: “Any classifica­
tion, which preserves substantially equal school advan­
tages is not prohibited by either the state or federal con­
stitution, nor would it contravene the provisions of 
either.”

In our judgment, the scope of the power conferred 
by “management” and “control” , and “assignment of 
youth” in the section relating to boards of education is as 
broad as the power conferred by “government” with 
right to “Adopt by-laws, rules, and regulations” , in the 
section relating to the Board of Trustees of Ohio State 
University. It is our opinion that the Supreme Court 
has so decided in State, ex ret. Weaver v. Board of 
Trustees of Ohio State University, supra, and that we are 
bound by that interpretation.

For these reasons, the writ of mandamus prayed for 
is denied, and the action dismissed at the cost of the 
relators.

Matthew s, & Ross, JJ., concur.

Hamilton, P. J., concurring:
I concur in the conclusion reached by the majority of 

the Court, for the reason that the plea of res adjudicata,



44

set up by the respondents in the third defense, is a good 
defense.

In 34 Corpus Juris, Section 1282, the law is stated as 
follows:

“A fact or question which was actually and 
directly in issue in a former suit, and was there 
judicially passed upon and determined by a 
domestic court of competent jurisdiction, is con­
clusively settled by the judgment therein, so far 
as concerns the parties to that action and per­
sons in privity with them, and cannot be again 
litigated in any future action between such 
parties or privies, in the same court or in any 
other court of concurrent jurisdiction, upon 
either the same or a different cause of action.”

There are no new or changed facts in the case under 
consideration which would warrant a different judgment 
from the judgment entered by Judge Clevenger. As 
stated by Judge Clevenger on page 2 of his opinion:

“These allegations and denials boil down to 
the issues to the simple question whether the as­
signment of said child was wholly because of his 
rase. Relator says it was, and the Board by 
answer, says it was not.”

And Judge Clevenger held that judgment should be ren­
dered for the respondent, Board of Education.

lhat seems to me to be the only issue in the instant 
case. There is another child, of the same family, living 
at the same place, the parties to the action are the same, 
and all the conditions and circumstances of the case are 
the same.

Iherefore, the judgment of Judge Clevenger must be 
held to be conclusive of all the rights here sought to be 
litigated.



IN THE

Supreme Court of Missouri
DIVISION NO. 2,

JANUARY CALL, 1937

JOSEPH P. HARRIS,
Appellant,

VS.
CITY OP ST. LOUIS,

A Municipal Corporation, et al.. 
Respondents.

APPEAL FROM  T H E  CIRCUIT COURT, C ITY  OF ST . L O U IS, 

M ISSOURI.

H ONORABLE O 'N E IL L  R Y A N , JUDGE.

ABSTRACT OF THE RECORD FOR APPELLANT

S. R. Redmond,
H enry D. E spy, Esq., 

A ttorneys fo r  Appellant (P la in tiff).

•PE N C R It D . S O V A R D , L A W  P R IN T E R . Q U H B S L  »L D < * . K . C . .  U P . V I . « » « •





No. 34,587
IN THE

Supreme Court of Missouri
DIVISION NO. 2.

JANUARY CALL, 1937

JOSEPH P. HARRIS,
Appellant,

VS.
CITY OF ST. LOUIS,

A Municipal Corporation, et al., 
Respondents.

APPEAL PROM  T H E  CIRCUIT COURT, C ITY  OF ST. LOU IS, 

M ISSOURI.

HONORABLE o ’ N E ILL  R Y A N , JUDGE.

ABSTRACT OF THE RECORD FOR APPELLANT

This is an action for an injunction instituted 
August 27, 1934, by the appellant, plaintiff below, 
against respondents, defendants below, by filing his 
suit in the Circuit Court of the City of St. Louis. 
The amended petition, omitting caption, is as fol­
lows :



2

AMENDED PETITION 

(Caption omitted)

By leave of Court had and obtained, comes 
now, Joseph P. Harris and for his cause of 
complaint states that he is a citizen and resident of 
the City of St. Louis, State of Missouri and has 
resided in said City and State for 40 years; that 
he is a tax-payer and owner of real estate in said 
city and state, and that he brings this action on 
behalf of himself and other such citizens of the 
City of St. Louis, State of Missouri, as care to 
join in same.

Complainant further states that the City of 
St. Louis, is a Municipal Corporation, duly incor­
porated; that H. C. Menne, is the treasurer of the 
City of St. Louis, a municipal corporation; that 
Joseph P. Darst, is the Director of Public Service 
of the said City of St. Louis; that James Darst is 
the manager of the Municipal Auditorium and 
Community Center, located at 14th and Market 
Streets, St. Louis, Missouri; that the other de­
fendants are members of the Municipal Auditorium 
Commission, a commission created by Ordinance 
No. 40145 of the City of St. Louis, State of Mis­
souri.

Complainant further states that in pursuance 
to Sections 3 and 11 of Article 10, of the Constitu­
tion of the State of Missouri, and Section 1, of 
Article 1, and Section 1 of Article 18 of the



3

Charter of the City of St. Louis, State of Missouri,
an ordinance No....................... was duly passed by
the Board of Aldermen of the City of St. Louis,
State of Missouri, on the ............................  day of
....................................... , 1922 and signed by the
Mayor of the City of St. Louis, State of Missouri, 
containing the following proposition:

“ For the acquisition of a site, and the 
erection thereon of a civil building to be 
known as the “ Municipal Auditorium and 
Community Center Building,”  to be used for 
the holding of public meetings, gatherings, and 
conventions for the discussion of public ques­
tions, including matters submitted to the peo­
ple under the referendum or initiative, and 
to provide suitable meeting places for educa­
tional, moral, musical, industrial, labor, and 
other purposes, five million dollars 
($5,000,000.00).”

That said proposition was on the.....................
day of February, 1923, voted on by the people of 
the City of St, Louis, State of Missouri, and the 
said proposition carried by the necessary vote. 
The purpose of said money voted by the people 
in the said proposition was for the acquisition of 
a site and erection thereon of a civil building to 
be used for the holding of public meetings, gather­
ings, and conventions for the discussion of public 
questions and to provide suitable meeting places 
for educational, moral, musical, industrial, labor 
and other purposes.



4

Complainant further states that said building 
is now and has been for some time completed or 
partially completed and is being used for and by 
some of the citizens and tax-payers of the City of 
St. Louis, State of Missouri, to the exclusion of 
others; that on or about the 27th day of June, 
1933, an ordinance was passed No. 40145, and same 
was duly signed by the Mayor and became one 
of the regularly constituted ordinances of the City 
of St. Louis, State of Missouri, a copy of said 
ordinance is attached hereto and marked “ Plain­
tiff’s Exhibit ‘A ’, ’ ’ and asked to he considered 
as much a part hereof as if copied herein.

Plaintiff further states that he is a Negro and 
that said Commission, the City of St. Louis, a 
Municipal Corporation, the Mayor of the City of 
St. Louis, and the other defendants herein who 
have full and complete control of the maintenance, 
operation and leasing of said building, in violation 
of the Constitution of the United States of 
America and of the State of Missouri and the 
ordinances heretofore mentioned that were passed 
in pursuance thereto, have deprived him and all 
members of the Negro race the full and same 
right of admission to, and the opportunity of at­
tending public attractions given in said Auditorium 
for educational, moral, musical, labor, and other 
worthwhile purposes and still deprive him and 
other members of the Negro race of the advantages, 
conditions, and benefits to be derived from said 
building.



5

Complainant states that as a tax-payer, he has 
been taxed for the erection, up-keep, maintenance 
and completion of the said Auditorium and Com­
munity Center; that his money and that of thous­
ands of other Negroes, as a part of the general 
revenue of the City, is being used to maintain and 
keep up said public building that is operated in an 
illegal manner in that the defendants, who are in 
charge of said building, discriminate against 
Negroes and deny them admission to public per­
formances in said building, even though it was 
erected by all the people, for all the people, and 
at the expense of all taxpayers; that thousands of 
Negroes are taxpayers in the City of St. Louis 
and pay taxes to said City.

Complainant would further show that the ex­
penditure of the revenue of the City of St. Louis, 
for the maintenance of said building is illegal and 
will remain illegal as long as the aforementioned 
discriminating practice prevails.

Complainant would further show that defend­
ants, as a subterfuge for performing their duty 
and treating all citizens alike, have concocted and 
formulated a plot and plan whereby the large 
auditorium in said building is rented to individuals 
who connive with defendants and are permitted, 
encouraged, and allowed to and in violation of the 
law refuse to sell tickets of admission to public 
performances to Negroes for the sole reason they 
are Negroes.

Complainant states further that he has no com-



6

plete and adequate remedy at law, and therefore he 
brings this suit in equity.

WHEREFORE, plaintiff prays that this court 
permanently enjoin the defendants, all or any of 
them, their agents, successors in office, and/or 
assigns from leasing, letting, renting, hiring or in 
any wise permitting the said civic building known 
as the “ Community Center and Municipal Audi­
torium,”  or parts thereof, to be leased, hired, 
rented, let, or in any wise used for educational, 
moral, musical industrial labor and other perform­
ances that promote the common weal, at which 
plaintiff or members of the Negro race are ex­
cluded or denied the same rights of admission as 
any other race, solely because of their race or 
color; that the defendants, all or any of them 
deemed necessary by the court, their agents, suc­
cessors in office and/or assigns be permanently 
enjoined from paying out of the funds of the 
treasury of the City of St. Louis, State of Mis­
souri, any money whatsoever for the maintenance, 
upkeep, and completion of said auditorium and 
community center until said building is operated 
in such manner that no tax-payer is segregated 

, because of his race and color, and until all citizens 
and tax-payers of the City of St. Louis are given 
the same right of admission to said building with­
out any restrictions whatsoever because of race or 
color; that pending final judgment in this cause 
the Court shall order that a temporary injunction 
be issued restraining and enjoining the defendants 
from doing any and all the aforesaid acts; and if



7

plaintiff has not prayed for the proper relief 
then he prays for such other and further relief as 
to the court seems meet and just.

Further praying, plaintiff prays that the City 
of St. Louis, a Municipal Corporation, he made a 
party-defendant and that summons be issued,

Attorneys for Plaintiff, 
State of Missouri, City of St. Louis, ss.

Joseph P. Harris, first being duly sworn on 
his oath states, that the matters and things set- 
forth in the above and foregoing petition are true 
and correct according to the best of his knowledge, 
information and belief.

Jos. P. Harris,
Plaintiff.

Sworn to and subscribed before me this 22 
day of September, 1934.

My commission expires 3/6/36.
Silas E. Garner,

Notary Public.

RETURN TO ORDER TO SHOW CAUSE. 
(ANSWER)

Thereafter, the respondents filed their return 
as an answer, which return, omitting caption, is as 
follows:



8

Come now the defendants and admit that the 
City of St. Louis is a municipal corporation; admit 
that defendants occupy, respectively, the official 
positions in the petition alleged; admit that on the
...................................  day of February, 1923, the
proposition set out in the petition was adopted by 
a vote of the people of St. Louis; admit that the 
building referred to in said proposition is now par­
tially completed and in use, but deny that the 
same is being used for and by some of the citizens 
and taxpayers of the City of St. Louis to the exclu­
sion of others; admit that Ordinance 40145 was 
duly enacted and approved by the Mayor of the 
City of St. Louis on the 27th day of June, 1923; 
admit that the defendants have control of the 
maintenance, operation and leasing of said build­
ing, but deny that they have deprived the plaintiff 
and all members of the negro race of the same right 
of admission to and the opportunity of attending 
public attractions given in said Auditorium, and 
deny that the defendants are depriving the plain­
tiff and other members of the negro race of the 
advantage, conditions and benefits which may be 
derived from said building.

The defendants deny that said building is 
operated in an illegal manner by discriminating 
against negroes in denying them admission to pub­
lic performances in said building; deny that they 
have concocted and formulated a plot whereby the 
large auditorium of said building is rented to indi­
viduals who connive with defendants and are per­
mitted, encouraged and allowed to, in violation of



9

the law, refuse to sell tickets of admission to public 
performances to negroes for the sole reason that 
they are negroes; and the defendants deny each and 
every other allegation in the petition contained.

WHEREFORE, having made full return to the 
order to show cause, the defendants pray that 
plaintiff’s application for a temporary injunction 
be denied.

Chas. M. Hay,
Oliver Sexti,
Attorneys for Defendants.

REPLY

Thereafter, the plaintiff filed his reply in said 
cause which reply, omitting caption, is as follows:

Comes now the plaintiff and for a reply to- 
defendants’ return to order to show cause denies 
that the Municipal Auditorium is not being used 
by some citizens of the City of St. Louis to the 
exclusion of others; denies that the plaintiff and 
other members of the Negro race are given the 
same right of admission to and the opportunity of 
attending public attractions given in said audi­
torium; denies that the defendants are not de­
priving plaintiff and other members of the Negro 
race of the advantages and benefits that are being 
derived and are to be derived from said building; 
denies that said building is operated in a legal 
manner and denies that defendants are not discrim­



10

mating against Negroes in not admitting them to 
public performances in said building; denies that 
defendants have not concocted and formulated a 
plot and plan to exclude Negroes from said build­
ing and to deprive them of the right of buying 
tickets to performances in said building.

Attorneys for Plaintiff.

PLAINTIFF’S MOTION FOR A RE-HEARING 
(Caption omitted)

Comes now the plaintiff and moves the Court 
to set aside its verdict and grant it a rehearing in 
the above-styled cause for the following reasons:

1. The judgment of the Court is for the wrong 
party.

2. The judgment of the Court is against the 
weight of the evidence and contrary to the law.

3. The Court erred in refusing the finding 
of facts and conclusions of law submitted by plain­
tiff.

4. The judgment of the Court is contrary to 
and in violation of Section 30 of Article 2 of the 
Constitution of the State of Missouri in that it 
deprives plaintiff of his liberty and property with­
out due process of law.

5. The judgment of the Court is contrary to 
and in violation of the Fifth and Fourteenth 
Amendments to the Constitution of the United



11

States in that it deprives plaintiff of his property 
and liberty -without due process of law.

6. The finding of facts made by the Court is 
erroneous and contains many immaterial matters 
and matters not in evidence and omits many perti­
nent and vital matters.

7. The Court erred in putting the Municipal 
Auditorium on the same basis as a private enter­
prise.

8. The Court erred in its conclusions of law.
9. The Court erred in basing its conclusions 

of law on facts not in the record.
10. The judgment of the Court is contrary to 

Section 3 of Article 10 of the Constitution of the 
State of Missouri which provides that taxes may 
be levied and collected for public purposes only.

Attorneys for Plaintiff.

FINDINGS OF FACT AND LAW 

(Caption omitted)

This case filed August 27, 1934, was heard 
October 1.1 last on a return to an order to show 
cause issued September 24, was later fully briefed 
and argued, and on April 8, the return was re-filed 
as an answer and reply filed and cause submitted 
on the merits on the evidence heard in October.



12

The petition alleges plaintiff is a citizen and 
resident of St. Louis for forty years, a tax payer 
and owner of real estate, and that he brings the 
action for himself and such other citizens as care 
to join therein. Makes suitable allegations iden­
tifying the defendants, the City of St. Louis, the 
City Treasurer, H. C. Menne, Director of Public 
Service Joseph M. Darst, Manager of the Audi­
torium James Darst, and states the other defend­
ants are Members of the Municipal Auditorium 
Commission, a body created by City Ordinance No. 
40145. Alleges that pursuant to the Constitution 
of the State, the Charter of the City, and a City 
Ordinance a bond issue of $5,000,000 was proposed 
and adopted by a vote of the people to acquire a 
site and a civil building, to be known as the “ Mu­
nicipal Auditorium and Community Center Build­
ing”  to be used holding public meetings, gather­
ings, conventions to discuss public questions * * # 
and to provide suitable meeting places for edu­
cational, moral, musical, industrial, labor, and other 
purposes. That the building is now wholly or 
partly completed and is being used for and by 
some citizens and tax payers to the exclusion of 
others. Ordinance No. 40145, approved June 27, 
1933, is pleaded whereby the Commission was 
authorized and its power and duties defined. The 
Commission consisting of the Mayor, the Comp­
troller, the President of the Board of Aldermen, 
the City Counselor, the Director of Streets and 
Sewers, the Director of Public Safety, five Mem­
bers of the Board of Aldermen, selected by that



13

body, and seven others to be appointed by the 
Mayor, to hold office during his pleasure, to repre­
sent certain bodies, convention bureau, etc. etc., 
all serving without compensation. The Commission 
to act in an advisory capacity in the management, 
control and use of the building, with power to 
make rules and regulations, cooperating with civic 
bodies that work to the same end to secure events 
appropriate for the Auditorium and Community 
Center, and which would benefit the City. The 
Commission to establish a schedule of charges for 
the use of the building, and with the right to ex­
empt in whole or in part from any charges for use 
by the convention of an organization which might 
draw an attendance that would result in a con­
siderable return to the City. All monies collected 
for the use of the Auditorium and Center to be 
deposited with the City Treasurer. The Conven­
tion, etc. Bureau to be afforded sufficient office 
space to aid its civic activities in bringing events 
here, and to be charged for space, heat, etc., as 
determined by the Commission. Plaintiff alleges 
he is a negro and that the Commission, in viola­
tion of the Constitution, Charter, and Ordinances, 
have deprived him and all negroes of the full and 
same right of admission to public attractions given 
in the Auditorium, and of the benefits derived 
from the building. That he has been taxed for the 
erection, upkeep, etc., of the building and this 
money and the money of thousands of other ne­
groes, as part of the general revenue of the City, 
is used for this public building and it is operated



14

in an illegal manner by defendants in that they 
discriminate against negroes, and deny them 
admission to public performances therein, and the 
use of the revenue while such discrimination con­
tinues is illegal. That as a subterfuge the 
defendants have concocted a plot whereby the large 
auditorium is rented to individuals who connive 
with defendants and are permitted and encouraged 
and allowed to refuse to sell tickets of admission 
to public performances to negroes solely because 
they are negroes. That he has no remedy at law 
and hence prays equitable relief to-wit to enjoin 
defendants, etc., from leasing, renting, etc., said 
building or parts thereof for performances for 
educational, etc., purposes that promote the 
common weal at which plaintiff or members of the 
negro race are excluded or denied the same rights 
of admission as any other race, solely because of 
their race or color, and from paying City funds 
to maintain, etc., the building until it is operated 
so there will be no race segregation or discrimi­
nation, etc.

The answer makes some formal admissions, 
and then specifically denies any taxpayers use 
the building to the exclusion of others, and denies 
they have deprived plaintiff and all others of his 
race of the same right of admission to, and oppor­
tunity to attend public attractions given in the 
Auditorium, and they deny they are depriving 
them of benefits, etc., derived from the building. 
Deny illegal operation of the building by discrimi­
nation or that there was a plot or a conniving



15

with others to refuse to sell negroes as alleged. 
The reply is in effect a denial of defendants’ 
denials. The evidence was, in substance, that 
plaintiff resident here over fifty years, a tax 
payer about thirty years, and a deputy clerk in 
our Probate Court, and others of his race, all who 
testified being very respectable persons engaged 
in various occupations, had sought to buy tickets 
for admission to different parts of the Atiditorium 
to hear grand opera, presented to the public by 
Mr. Guy Golterman, the licensee from the City, 
which acted through the Municipal Auditorium 
Commission, for a period of some weeks in the 
spring of 1934, when the Auditorium was first 
opened to the public, and again in the fall of that 
year. The license, which seems to have been 
based on forms used in other cities, was non- 
assignable and revocable, and reserved the right 
of the City to control the management of the 
Auditorium, and to enforce all necessary rules 
for its management and operation. It provided 
for certain payments for the use of the Auditorium, 
and contained numerous provisions of no moment 
here. There was nothing in the license that in 
any way restricted the right of the licensee to 
say that negroes, or any other persons of what­
ever kind of race, should not be permitted to 
occupy seats except in such parts of the house as 
the licensee might designate for their use. Plaintiff 
and his witnesses testified they sought to buy 
tickets of admission at the office on Olive street 
where tickets were sold and were denied the right



16

to buy seats save certain side seats on the main 
floor and certain one dollar seats in the upper 
balcony. More expensive and more desirable 
seats not being sold to negroes. There was some 
question of whether this refusal was by direct 
authority of the Commission through Mr. Darst or 
because of Mr. Golterman’s orders, but that is 
immaterial for this reason. A committee, thor­
oughly representative of the colored people, had 
a conference with the Mayor, and others repre­
senting the Commission, protested against the 
discrimination as to their people, and suggested 
a clause in the license contracts forbidding same. 
The result was that on May 18th a letter was sent 
the chairman of the Committee, Mr. R. N. Owens, 
signed by Mr. James E. Darst for the City Com­
mission reading as follows:

“ At its last meeting the Auditorium Com­
mission heard your letter and directed me to 
refer you to a rule of the Commission, made at 
a previous meeting:

When the Auditorium Commission through 
the Manager leases any part of the Auditorium, 
for any sort of dramatic production, concert, 
reception, athletic event, etc., it shall leave to the 
discretion of the lessee any regulations regarding 
admission, price, sale of tickets and such matters.

The Commission ruled that this applied to 
the admission of persons of various races and 
that it was within the province of the lessee to



17

say who should be admitted and under what con­
ditions. ’ ’

This is a very explicit statement of the 
City’s position and policy which the evidence 
: shows remains unchanged. There has been some 
modification by Mr. Golterman by way of liberal­
izing his policy as to seats for colored people. 
Instead of being limited to parts of the upper 
balcony on the right and left of center, they may 
now occupy any balcony seats. They could for­
merly buy only some seats in the rear sides of 
the main, or orchestra, floor, which seats 1770 
people. It does not appear explicitly what is the 
present rule as to that floor but the Court’s con­
clusion from the evidence is that the rule as to 
that floor has not been changed. The second 
floor is arranged thus: In front a row of boxes 
seating, in all, 108; then two rows of mezzanine 
seats for 120; then the lower balcony, called at 
the hearing the dress circle, rows A to L inclusive, 
seating 719; then a passage way (on a level with 
the last upper stop of elevators from the lobby 
floor of the building) and then the upper balcony, 
rows M to Z inclusive, seating 854. The length 
of a line drawn from the stage to row Z, the 
extreme high row in the upper balcony, would 
be about 150 feet. The acoustics are excellent 
and speakers on the stage may be heard in the 
upper balcony. Loud speakers are used. The 
very large stage may be seen clearly from all 
parts of the house, though scenes or people on the 
stage may not be distinguished so satisfactorily



18

from the upper parts of the house, and one sees 
better down stairs than up. One of plaintiff’s 
witnesses said persons over fifty, or very heavy, 
or with certain troubles (heart, kidney, vision), 
might have difficulty in ascending to and using 
the high parts of the house. There are four 
assembly halls, with stages, two on either side 
of the large hall, which will each seat 698. Two 
of these may be used for dances. There is a 
great space called the exposition floor beneath 
the entire building, and the interior is now being 
finished of a convention hall, in the south end 
of the building, that will ordinarily seat 8500, and 
seats may be added to accommodate in all between 
12000 and 13000. The large hall rents for $375.00, 
the Assembly halls for $75.00 and $50.00. There 
are lounge rooms, etc., adjoining the large hall 
and each of the assembly halls. Mr. Golterman, 
•Jr., testified there had been no complaints from 
colored people during the fall season of opera. 
The colored people were fully represented on the 
large Citizens’ Committee that arranged the 
various civic celebrations, lasting some days, at 
the opening of the Auditorium Center in the 
spring of 1934, and were freely admitted to all 
the civic entertainments. They had their own 
night of entertainment in the Auditorium (where 
the grand opera was later presented), and Miss 
Franklin, a colored teacher of dancing, used it 
for a dance recital of her school of dancing. 
Miss Franklin, who is a director of dancing for 
the City during summer months, said she dis­
tributed blocks of tickets to admit colored people



19

to the three Play Ground Festivals given by the 
City in the Auditorium in April and September 
last year. Colored people have also freely rented 
the assembly halls for their own use. Sometimes 
fraternities have used the halls admitting only 
their own members. Practically all the use made, 
since the opening of the building in the spring of 
1934, of' the large auditorium, and the assembly 
halls and exposition floor, has been made by 
licensees, paying, the City therefor. In all the 
entertainments given under the direct auspices of 
the City there has been no discrimination, and 
there was no evidence that licensees, other than 
Mr. Golterman who only presented Grand Opera, 
in any way discriminated against colored people, 
and no complaints were made bv them as to any 
discrimination save in the Grand Opera seasons. 
Mr. Hay, the City Counselor, and a member there­
fore of the Commission, testified it did not intend 
to discriminate against colored people, but, while 
wanting to be absolutely fair to them, the Com­
mission did believe the licensee should have the 
right to control the question of who should be 
permitted to attend the entertainments, for which 
the license was granted. That licensees might 
limit attendance to the people of a special race or 
color or creed if they saw fit to do so. There was 
no evidence to sustain the allegation that there was 
a plot entered into by defendants among them­
selves, or with licensees, Golterman or any other, 
to refuse to sell tickets of admission to the large 
Auditorium to negroes because they were negroes. 
One witness for the plaintiff stated there were



20

between 93000 and 95000 colored people in this 
city, as per the 1930 census, many of whom were 
tax-payers. The part hereof descriptive of the 
building is taken from the evidence given in Court 
May 20, after a visit to the building, made May 6, 
by the Court accompanied by counsel for plaintiff 
and defendants—and plaintiff personally. The 
above resume not only sets forth the salient points 
necessary for consideration of the legal questions 
presented by counsel but is a finding of facts that 
meets a request made by counsel for plaintiff 
when the case was finally submitted May 20th.

The petition might be dismissed because of 
failure to prove the specific charges made as the 
basis of complaint, namely, that the building was 
operated in an illegal manner in that the defendants 
discriminated against negroes, and denied them 
admission to public performances, and hence the 
use of revenue from the building was illegal, and 
that defendants had concocted a plot in renting 
the large auditorium to individuals who connived 
with defendants, and were permitted, encouraged 
and allowed to refuse to sell tickets to negroes 
for admission to public performances solely be­
cause they were negroes. However the case took 
a wide range, and the Court will pass on the 
question of the legal right of the City, through 
its Commission in charge of the Auditorium 
building, to license the use of parts therof, leav­
ing to the licensees’ discretion as to “ the ad­
mission of persons of various races, and that it 
was within the province of the lessee to say who



21

should be admitted and under what conditions.”  
Plaintiff contends that this policy of discrimina­
tion by the City which the City could not make 
and must prevent its licensees from making — 
Conceding that the City could not make it the 
proof is that when the City is the host at enter­
tainments in the building it does not make such 
discrimination, nor does it refuse to let any part 
of the building to negroes upon the same terms 
as a letting to whites. The legality of the bond 
issue was thoroughly considered by our Supreme 
Court in the Halbruegger case, 302 Mo. 573, in an 
opinion, in banc, written by Judge J. T. Blair. 
The decision turned on the question whether the 
money voted was to be used for a public purpose 
so that it came within the provisions of our Con­
stitution, Section 3 of Article 10 that: *‘ Taxes 
may be levied and collected for public purposes 
only.”  The substance of the decision is that the 
“ public purposes”  to be served, of providing a 
building for public meetings, conventions, and 
gatherings of various kinds, for educational, moral, 
musical, industrial, labor and other purposes, jus­
tified the expenditure of public money. The 
opinion was a learned and exhaustive review of 
what were municipal rights, and decisions relating 
thereto, in the way of spending revenue for the 
general welfare and happiness of the people, and 
whatever would “ advance the cause of education 
and morals among the people of a community and 
aid in contributing to the general welfare, the 
progressive influence of moral and cultural forces



2 2

essential to the advancement of the race.”  That 
the Auditorium building would not be used for 
meetings, exhibitions and entertainments, educa­
tional, musical, and otherwise, held only under the 
direct auspices of the City, may well be inferred 
from the broad language of the proposition voted 
on, and this was recognized by the legislative 
branch of the City government when it passed 
the ordinance. (No. 40145), under which the 
Commission was provided for and giving it the 
right, in connection with its general control of 
the building, to fix a schedule of charges for its 
use. The building is very large, and the accom­
modations for public gatherings range from small 
halls where seven hundred may gather, to the 
great convention hall that, on special occasion, may 
seat thirteen thousand people. Manifestly every 
step taken was with a view to a structure that 
could be used by the City in whole or in part as 
needed, at any time for purely civic matters, and 
when not so needed, and that must be for the 
greater part of the time, rented, as to its various 
parts, to persons who would pay for the parts 
used just as one might rent any place for purposes 
of public entertainment. In such event the City 
becomes, for the time, the landlord and the person 
renting its tenant. The Charter gives the right 
to the City to lease, Ordinance No. 40145 carries 
out that right with respect to this building. It 
is the law generally that a City when it owns 
property that, for a time, cannot be used for a 
strictly public purpose may rent it for private



23

uses. That general rule has been specifically 
recognized and applied in this State in the Heger- 
Tower Grove Park case in 323 Mo. 1031, and the 
principle sustained in the much earlier case of 
Attorney General against Schweickhardt, 109 Mo. 
496, which related to the operating of a restaurant 
in Forest Park under a contract with the owner 
made by the City under a City Ordinance. The 
City in matters of that kind does not act in its 
governmental or political capacity but in a quasi­
private capacity.

Counsel for plaintiff in their oral arguments, 
supplemented by able briefs have emphasized their 
thought that what has happened here is a violation 
of the Fourteenth Amendment to the Constitution 
of the United States, and they have analyzed that 
amendment with clearness and precision, citing- 
many cases construing it in varying circumstances. 
The Court does not think that question is present 
in this case. The City has not segregated colored 
people from white people. It has not discriminated 
in any way against the former. It has not shut 
its doors to them, or said they cannot make use 
of this or that part of the building, or sit in 
this or that section of any part thereof. It has 
rented, and undoubtedly will continue to rent, 
any part thereof they wish to use to the colored 
people as to the white people—and either, when 
a renter, may say to the other—If you want to 
come in you will be assigned to certain parts only 
and to none other. That this may be irritating 
and vexing, and may run counter to a natural



24

pride is true, but if the City may rent a hall as 
any landlord might do, and it is within the legal 
rights of the lessee as to what he may do with the 
place he has rented for the night, or the week, 
then those admitted only on his terms cannot say 
they have been legally hurt—They have no ground 
for legal complaint because of his action—This 
was recognized as true by our Supreme Court in 
the Judah case, in 111 Mo., where a theatre owner 
in Kansas City was held to have the right to let 
colored persons occupy only balcony seats espe­
cially set apart for their use. Judge Black said:

“ Colored persons have their own school, 
their own churches, and often their own 
places of amusement. Whites attending 
places of amusement designed specially for 
colored persons may be required to occupy 
separate seats. When colored persons at­
tend theatres and other places of amusement, 
conducted and carried on by white persons, 
custom assigns to them separate seats. Such 
separation does not necessarily assert or 
imply inferiority on the part of one or the 
other. It does no more than work out nat­
ural laws and race peculiarities. It ordi­
narily contributes to the convenience and com­
fort of both. The colored man has and is 
entitled to have all the rights of a citizen, 
but it cannot be said that equality of rights 
means identity in all respects. Here the 
defendant did not exclude or attempt to 
exclude colored persons from his theatre.



25

He provided accommodations for them, but 
in doing so required them to purchase tickets 
for and take seats in the balcony, and this 
rule adopted by him accords with the custom 
and usage prevailing in this State. Such 
custom has the force and effect of law until 
some competent legislative power shall es­
tablish some other and different rule. The 
defendant’s rule was no more than a reason­
able regulation which he had a right to make 
and enforce.”

That case is the law of this State today, and 
if the Court is right in holding that the City can 
let the different parts of the Auditorium building, 
when not needed for its own use, as any property 
owner might let halls he owned, then it may allow 
the lessee, or licensee, to regulate the admission 
and seating of those who buy tickets, and the 
Commission’s resolution to that effect is lawful.

It follows that the plaintiff’s petition must 
be dismissed, and judgment entered for defendants 
and it is so ordered.

O ’Neill Ryan,
Judge.

June 3, 1935.

TRIAL, SUBMISSION AND JUDGMENT

And thereafter, at the September Term, 1934, 
of said Court, on October 11th, said cause being



26

called to trial on an order to show cause issued 
September 24th and all parties appearing ready 
for trial, the said cause was heard before the 
Honorable O’Neill Ryan. At the conclusion of 
said hearing the said cause was submitted.

Thereafter, on April 8th, 1935, the return 
heretofore filed was refiled as an answer and the 
reply heretofore filed was refiled. The submis­
sion of October 11th, 1934, was set aside, addi­
tional testimony was heard and the case submitted 
on the merits of the evidence heard in October, 
1934, and on April 8th, 1935. At the conclusion 
of the trial, petitioner submitted a finding of facts 
and a declaration of law.

Thereafter, on June 3, the Court refused both 
the finding of facts and declaration of law and 
duly entered a decree dismissing the petition and 
judgment was entered for defendants, to all of 
which action by the court plaintiff duly excepted 
and still excepts.

MOTION FOR A REHEARING FILED
And thereafter, on June 6th, 1935, plaintiff 

filed his motion for a rehearing.

MOTION FOR REHEARING OVERRULED 
And thereafter, on the 24th day of June, 1935,



27

after consideration of said motion for rehearing 
the court overruled same.

AFFIDAVIT FOR APPEAL FILED

And thereafter, on the 2nd day of July, 1935, 
plaintiff filed an affidavit for appeal in said 
cause and was granted an appeal to the Supreme 
Court of Missouri.

BILL OF EXCEPTIONS FILED

On the 11th day of September, 1935, at the 
June Term, 1935, the appellant’s bill of exceptions 
was presented, allowed, signed and ordered made a 
part of the record, said hill of exceptions is as 
follows, omitting caption and formal parts:

BILL OF EXCEPTIONS 
ON BEHALF OF APPELLANT

BE IT REMEMBERED that at the Septem­
ber Term, A. D., 1934, of the above-entitled Court 
and on, to-wit, beginning the 11th day of October,
A. D., 1934, the above entitled cause came on for 
trial and was tried in the above-entitled Court be­
fore the Honorable O’Neill Ryan, Judge of said 
Court, and the following proceedings were had, to- 
wit:



28

APPEARANCES:

FOR THE PLAINTIFF:

S. R. Redmond, Esq., and Henry D. Espy, Esq.

FOR THE DEFENDANTS:
Charles M. Hay, Esq., and Oliver Senti, Esq.

PLAINTIFF’S EVIDENCE

THEREUPON, the plaintiff, in order to sus­
tain the issue upon his part to be sustained, offered 
and introduced the following evidence, to-wit :

JOSEPH P. HARRIS (B. Ex. 1, p. 3-13) was 
the first witness in his own behalf. He testified 
that he has lived in St. Louis over fifty years; 
that he owns real estate and pays taxes to the City; 
that he has paid taxes over thirty years; that he 
attempted to purchase tickets to the Opera at the 
Municipal Auditorium during the opening of the 
Auditorium; that he did not get any tickets;

Q. What happened? A. The lady at the 
Odeon (Aeolian) when I went to get them the lady 
claimed she had sold all the dollar tickets—I 
hadn’t asked for any class of tickets—and I said, 
“ Well, what other tickets have you?”  and she said, 
1 ‘ Well, we have three and five-dollar tickets, ’ ’ and I 
asked where they were located and she told me, 
and I said, “ Let me have them,”  and she said, 
‘ ‘ I cannot sell you any. ’ ’

That she said she had orders to sell my people



29

only one dollar tickets and all of them were sold; 
that the lady had five dollar tickets hut refused 
to sell me one because I was colored; that he ap­
plied again for tickets on October 3rd; that he 
had the money with which to buy a ticket.

Q. And you requested a ticket? A. Yes; 
and I applied on the 3rd of October for tickets 
for the present opera. I asked for the diagram, 
and she had it and showed it, and I said, “ What 
is the price of those three seats,”  and she said, 
“ Three dollars,”  and I said, “ Give me two 
tickets,”  and she turned away and came back and 
said, “ I cannot sell you any of those tickets,”  and 
I said, “ Why,”  and she said, “ Those are my 
orders, but,”  she said, “ I can sell you tickets 
around here.”  I said, “ Have you any?”  and she 
said, “ We have plenty of them, but I can not sell 
any to you.”

On Cross Examination; That he made appli­
cation for the tickets on the 3rd at the downtown 
ticket office; that a young lady was selling the 
tickets and gave him her name; that the tickets 
were sold at the Odeon (Aeolian)—the number is 
1004; that it was about ten of eleven in the morning 
when he was there.

Examination by the Court:

Q. What did she say—when you inspected 
the diagram and she Avent away and came back, 
just what did she say? A. She said, “ I cannot 
sell you any of those tickets. We can sell you 
tickets in the diagram around on the side, but



30

cannot sell yon any of them here,”  and I said, 
“ Have you got any of them!”  and she said. “ Oh, 
yes, we have plenty of them; but it is not my fault, 
I have orders not to sell you any of them.”

Q. When she said, “ We sell around here,”  
where did she indicate? A. That was around 
on the side of the main floor. If I had the dia­
gram, I could tell, because she pointed out on the 
diagram.

Q. On the same floor with those seats you 
had selected in the diagram? A. Yes, sir; it 
was on that floor.

Q. But around on the side? A. Yes, sir.
Q. But she said she had plenty of those seats 

you asked to buy? A. Yes, she said she had 
plenty of them.

When she said she had orders not to sell, did 
she say to whom? A. She said she had orders 
not to sell to my people, the colored people. She 
said it wasn’t her fault, but she had orders.

Mr. Redmond: (continuing) Q. That hap­
pened on October 3rd, after this suit was filed? 
A. Yes, sir; on the 3rd.

On Re-Cross Examination: I was at the Audi­
torium during the opening week on the night the 
colored people had a program; that was the only 
night I attended; that the lady said she had plenty 
of the kind of tickets I wanted but could not sell 
me any because of her orders.

Examination by the Court.

Q. Were those opera seats which you sought



31

to buy, in the spring of the year, on the main floor, 
on the same floor where you were selecting seats 
on the morning of October 3rd? A. Why, in 
the spring of the year, it seems she said—we had 
moved up to the window where the people were 
purchasing tickets, and I said, “ I want to get two 
tickets for the opera,”  and she said, “ We haven’t 
any, they are all sold, all the dollar seats,”  and I 
said, “ What other seats have you?”  and I said, 
“ let me have two of those,”  and she said, “ I can­
not sell you any. The dollar seats are in the bal­
cony,”  and I said, “ I am not asking you for those. 
You have other seats there,”  and she said, “ Yes, 
but I cannot sell them to you.”

Mr. Senti: (continuing) Q. I have the dia­
gram here representing the two floors of the Audi­
torium, so if you can indicate on there where the 
tickets were that she offered to sell you, I will 
show you which side it is on. This is in the balcony 
(indicating), and this is in the orchestra (indicat­
ing.) This is the first floor, and this is the second 
floor (indicating). See if you can indicate.

A. This is not made just as that was. There 
was a space in between here (indicating), on the 
one she had.

Q. Perhaps it was this one here? A. No. 
When I asked there, she said, “ Right in here, 
right in the center.”

The Court: Q. You are looking at the main 
floor now, are you?

Mr. Senti: No, this is the balcony.
A. (By the witness) Well, it was right in 

the center, here, where I spoke of the seat it was,



32

three-dollar seats, and then she went away and 
she came back and said she would sell me seats like 
around here (indicating), but couldn’t sell me any 
here (indicating).

The Court: Q. The seats you indicated as 
those you could not get are about two-fifths of the 
wray back from the stage and on either side of the 
central passageway from the stage to the exit; is 
that right?

A. Yes, sir.
The Court: Q. And those you said she could 

give you are those to the rear on the right and 
left of the sides of the Auditorium?

A. Yes, sir.
Mr. Senti: Q. That would be the space then 

to about here (indicating).
A. Yes, about where she indicated would be 

about like that.
The Court: Q. About eight or ten rows from 

the rear on the extreme right or the extreme left?
A. Yes, sir.
Mr. Senti: Q. Those are the seats she told 

you she could sell you?
A. Yes, sir.
Mr. Senti: Q. That was on this last occasion 

in October ?
A. Yes, sir.
The Court: Q. Now, on the first occasion 

you did not select your seats?
A. No, sir; on the first occasion I did not 

select seats. She just told me all the dollar seats 
were gone.

Q. And she told you the dollar seats were in



33

the balcony! A. Yes, sir.
Q. Did she say what part of the balcony? 

A. No, sir; she said they were all sold.
Q. But she didn’t say where they were, in 

any event, except that they were balcony seats 
and they were all sold? A. Yes, sir.

J. R. TERRY (B. Ex. pp. 13-19) introduced 
by plaintiff, testified that he has lived in St. Louis 
over seven years and is a teacher of music; that 
he is a graduate of Chicago Musical College and 
has taught music fifteen years; that he went to 
the Municipal Auditorium several nights during 
the celebration of the opening.

Q. Did you ever go to the opera at the Munici­
pal Auditorium! A. No.

Q. Did you ever try to go? A. I made 
an attempt to purchase tickets to go.

Q. Explain the attempt you made to go.
The Court: Q. And when it was, approxi­

mately.
A. It was approximately during the spring— 

I don’t remember the exact date—during the spring 
opera. I made an attempt to purchase tickets for 
the entire season, and I got in line as all other 
purchasers had done, and when my turn came I 
went to the window and asked for tickets of the 
young lady—I don’t know her name—and the re­
sponse was that all the balcony tickets were sold 
out and that she had tickets on the first floor, and 
I stood there a moment, and she said, “ Who do



34

you want them for?”  and I said, “ I want them 
for myself,”  and, of course, when I said that her 
demeanor or attitude seemed to change, and she 
said, “ I am sorry, but you are. not allowed there,”  
and I stood there for a moment or two, so she 
jumped up and went to somebody at the other side 
of the window, and I stood there, and she said, “ I 
am sorry, but you are not allowed up there,”  and 
I didn’t say anything further and I returned to my 
office.

On Cross Examination: I attended the exer­
cises during the dedication of the Auditorium about 
three times, particularly during the nights that the 
Negroes were connected with the celebration; that 
the Negroes had one night and one Sunday after­
noon ; that I was there both times; that the Opera 
House was then turned over to everyone; that a 
large number of both races were present; that 
Indians and Italians participated in the celebra­
tion; that there were no restrictions as to seats; 
that no question arose about seats at any of the 
dedicatory performances; that the only time I had 
any difficulty was in getting tickets for the Opera; 
that I have never been there since; that the only 
difficulty concerning admission that I know of is 
the Opera.

On Re-direct Examination: That I conducted
a chorus of one thousand voices on Sunday after­
noon and a chorus of one thousand voices during 
the evening performance at the Auditorium; that 
there was no admission paid that day.



35

Re-cross Examination: That admission was
by tickets and tickets were given to groups who 
sponsored the attraction and the distribution was 
by them; that no charge was made.

NATHANIEL H. SWEETS (B. Ex. pp. 19-24) 
testified that he has lived in St. Louis six years 
and is in newspaper work; that he has never been 
to the Municipal Auditorium; that he has attempted 
to go.

Q. When did you make an attempt and under 
what circumstances? A. At the opening of the 
Grand Opera season at the Municipal Opera, and 
I attempted to go to the first two performances 
given at the Auditorium. I went to the downtown 
ticket office to purchase tickets to those perform­
ances and I was in line with a number of others, 
who were purchasing tickets, and when it came 
my turn—

The Court: Q. That was at the Aeolian of­
fice?

A. Yes, sir. I asked for two tickets, and they 
said “ We haven’t any more dollar tickets,”  and I 
said I wasn’t particular about buying dollar tickets, 
“ I want tickets at any price,”  and she said, “ We 
have nothing less than $2.50 and $5.00 tickets,”  
and I said, “ I will take two of those,”  and she 
said, “ I am sorry, but I cannot sell them to you ’

Q. Did you ask the young lady where she got 
her authority not to sell any tickets?”

Mr. Hay: I think that is objectionable.



36

The Court: He may answer.
A. I stopped when the young lady told me 

she was sorry she could not sell them to me. I 
asked her what was the objection. She said she 
had received orders not to sell any of the $2.50 or 
$5.00 seats to the colored; and I asked her from 
whom she had got her instructions, and she said, 
“ Those are the orders I have received from Mr. 
Darst.”  I said, “ Who is Mr. Darst?”  and she 
said, “ He has charge of the Auditorium, and, if 
you want any further information, you may go up 
to see him;”  and I said, “ Thanks,”  I would go up 
to see him.

Examination by the Court:

Q. Well, did you? A. I went up to see 
Mr. Darst, hut I didn’t find him the evening I went 
up.

Q. Now, I understood you to say you Sought 
to get in for both the first and second perform­
ances? A. Yes, sir; of the Grand Opera.

Q. Was it just the first performance, or did 
you attempt to get seats for both performances at 
the same time? A. No; I went there the first 
time, and she said they hadn’t any tickets, and I 
went back to get tickets for the second performance 
and I had an attorney with me when I went back 
the second time.

Q. Now, how long before the opera opened 
was it when you went the first time approximately? 
A. As near as I recall, it was approximately, a 
week or two weeks before.



37

Q. And yon were told then that the house was 
sold out and no seats of any kind available? A. 
Yes, sir; sold out.

Q. And how long after that was it that you 
went to secure seats for the second performance? 
A. It was after the first performance that I went 
back to secure the second seats.

Q. And it was then what happened what you 
referred to? A. Yes, sir.

Q. And after waiting at Mr. Darst’s office, 
you never had any conversation with him at all? 
A. No, sir; I did not.

On Cross Examination-. I am positive the 
young lady mentioned the name of Mr. Darst. I 
asked her to repeat his name; that I know nothing 
about Mr. Golterman; that I never saw Mr. Darst; 
that if I remember correctly, the young lady did 
not give her name though I asked for it; that I 
was at the ticket office in the afternoon around 
two o ’clock; that I don’t recall just how the lady 
looked as I wasn’t paying any particular attention 
to her; that I was very much impressed with what 
she said but not to the extent to gaze into her face 
to see what kind of a lady she was; that she was a 
young lady.

R. L. WITHERSPOON (B. Ex. pp. 24-29) tes­
tified that he is an attorney and lives at 11 North 
Jefferson Avenue.

Q. Did you ever have occasion to purchase, 
or attempt to purchase, any tickets to the Grand



38

Opera being presented at the Municipal Audi­
torium? A. I did.

Q. State when and under what circumstances, 
please. A. I don’t recall the exact date I went 
down to the company with Mr. Sweets, who just 
testified. I first went to the Municipal Audi­
torium, over here at Fourteenth and Market, and 
inquired for the ticket office, and we were 
directed to go down to the Aeolian Piano Company, 
where the tickets were being sold, and we got down 
there and got in line with the other persons who 
were in line to purchase tickets, and when our 
turn came at the window Mr. Sweets was in front 
and he asked for tickets, and the conversation en­
sued as he stated it; and I asked for tickets, and 
the young lady at the window, who was selling 
the tickets, stated that all the dollar tickets had 
been sold, and I asked for her next lowest priced 
ticket, and she told me that it was—I think she 
said it was $2.50—and I asked for one of those, 
and she said she was sorry but she couldn’t sell 
me one of those tickets, and I asked her for the 
next priced ticket, and she said it was a $5.00 
ticket, and I asked her for one of those tickets, 
and she said she was sorry but she couldn’t sell 
me one of those. Then I asked her did she have 
those $2.50 and those $5.00 tickets, and she said 
yes, she had those tickets. Then I asked her, “ Why 
do you refuse to sell me one of those tickets?’ ’ 
She said, “ I have orders from Mr. Darst, the man 
who is in charge of the building, not to sell the 
colored people other than the balcony tickets, and 
they are all sold out.”



39

On Cross Examination: I am speaking of the 
Opera last spring; that I made no attempt to pur­
chase tickets this year; that I attended some of 
the other performances at the Auditorium; that I 
don’t recall any question about admission or seat­
ing arrangements because the ticket which admitted 
me was given to me; that white and colored people 
were there in large numbers; that I do not know 
whether they sat promiscuously in the building or 
not; that the only instance I know of of any dis­
cussion concerning admission was at the Opera.

Examination by the Court: That I attended 
the Friday night performances where the partici­
pants were mostly colored and there was a chorus; 
that I think I went to the one Mr. Terry spoke of 
but I am not sure; that I can’t say whether groups 
of white and groups of colored were clustered to­
gether because I was upstairs and didn’t see very 
many white people upstairs; that I do not know 
what the condition was downstairs; that I attended 
the automobile show.

On Re-direct Examination: That at least 
ninety per cent of the people I saw seated were 
colored; that it was known as Negro Night and 
was free.

ROBERT OWENS (B. Ex. pp. 29-47) testified 
that he has lived in St. Louis eighteen years and is 
an attorney; that he has not been to the Grand



40

Opera at the Municipal Auditorium; that he has 
attempted to go on two occasions.

Q. State the circumstances attending your 
attempts. A. Well, as I recall now, as near the 
date as I can recall, was between the 15th and 
18th of April, I went down to the Auditorium to 
get seats to see one of the operas there, and they 
said they were not allowed to sell any tickets there, 
to go down to the Aeolian Company, on Olive 
Street. So I went down there and applied, and 
the young lady at the window told me that all of 
the dollar seats had been sold, and they were not 
selling seats to colored excepting the dollar seats 
in the balcony.

Q. Did you get any tickets? A. I did
not.

Q. Did they have any tickets? A. She had 
tickets, other people were buying them there.

Q. Did they refuse to sell you one? A. She 
did.

The Court: Q. Well, you should state more 
specifically what she said by way of refusing to sell 
you one. A. She said she had no dollar seats 
and those were the only ones sold to colored peo­
ple.

Q. Is that all she said? A. No; in addi­
tion to that, Your Honor, she said that she had 
received orders from Mr. Darst, who had charge 
of the opera, to sell only the dollar seats to Ne­
groes. In other words, she said she had been 
working for Mr. Darst quite a number of years. 
I think she said she was the same lady that sold 
tickets at the Odeon, “ and we are not accustomed



41

to sell tickets to colored other than the balcony,”  
and the same applied here.

Mr. Redmond: (continuing) Q. Did you go
there again after that time?

A. Last spring.
Q. Was that this year or last year? A. 

This year; in April, 1934.
Q. Well, have you been there since then to 

purchase a ticket? A. I went there on the 2nd 
of October, this present season.

Q. Then what happened. A. Well, I went 
there to get a ticket for the opera on the 10th, I 
think, which was Carmen, and asked her to see 
the diagram, and she showed me the diagram, and 
I selected a seat in the second section on the first 
floor, and she said the price of tickets was $3.00, 
and I asked for one of those, and she said she 
couldn’t sell me those seats there, but she could 
sell me on the side, and I said, “ Why can’t you 
sell me the seats in the center, are they all taken?”  
and she said they were there but she had orders 
from Mr. Grolterman not to sell to colored the seats 
in the center, and I asked her name, and she told 
me her name was Miss Onger.

The Court: Q. That her orders from him 
were what?

A. Not to sell that center section to colored.
Mr. Redmond: (continuing) Q. After you

were not sold tickets, you wrote a letter to the 
Mayor, did you?

A. I did.
Q. Did you take it up with any one? A.



42

Yes; that same afternoon I went over there and we 
had a conference in the Mayor’s office.

Examination by the Court:

Q. By “ we”  who do yon mean? A. A 
committee of colored citizens had a conference in 
the Mayor’s office, that represented several asso­
ciations of negro advisement on colored people, the 
Civic Cooperative League, the Emergency Advisory 
Council for Negroes, and the Tom Powell Post of 
the American Legion. I had this conference in the 
Mayor’s office. Mr. Hay was present, as I re­
call, and the Mayor and Mr. Darst.

Q. Who were some of the members of the 
committee, Mr. Owens? A. Mr. George Brant­
ley, principal of the Sumner High School; Mr. 
Robert Watts, of the Vashon High School; Mr. 
Elmer Mosee, Attorney George L. Vaughn.

Q. Who is Mr. Mosee, just what identity has 
he? Is he connected with anything? A. Yes, 
sir; he represented the Democratic—

Q. And who is the fourth person you named? 
A. Attorney George L. Vaughn, and Mr. Jordan 
Chambers.

Q. Identify him, please. A. He is con­
nected with the Civic Cooperative League.

Q. What is he in business? A. He is an 
undertaker.

Q. Any others that you recall? A. Mr. 
Tocus, he has charge of the musical colored school, 
and Mr. Williams of the Urban League.

Q. What is his business or profession? A.



43

I think he is industrial secretary; and Mr. Collier, 
also of the Urban League; and there was Mr. Mor­
ris, of the Pine Street Y. M. C. A., and Mr. Frank 
Williams, principal of the Vashon, was there, but 
he couldn’t stay, he had to leave. Those are all 
that I recall, but there were several others.

Q. Is Mr. Watts the principal of the Yashon 
School? A. No; I think he teaches English 
there, Robert Watts.

Q. Very well. A. That committee took the 
matter up with the Mayor about the Negroes not 
being able to get tickets.

Q. Who was your spokesman? A. Well, 
who spoke there was Mr. Mosee.

Q. Well, who started? A. Elmer Mosee.
Q. Very well. Now, tell us what he said. A. 

He called the attention of the Mayor that the 
negroes had been refused tickets over there, and 
he said that he was a friend of the administration, 
and he would not like the administration to start 
off with the Auditorium giving the Negroes the 
right to criticize him; that he was a friend of the 
administration, that was his business—well, that 
is about the gist of what he said; and Mr. Brantley, 
I don’t know exactly what he said, but I know it 
was a protest against the refusal of selling Negroes 
tickets; and the same thing was more or less along 
that line.

Q. Who was the one you said spoke as in 
general there against this discrimination? A. 
Mr. Brantley; and Mr. Vaughn also spoke, and 
Mr. Grant also spoke at this meeting.

Q. You didn’t name him so far. Who is he?



44

A. He is in the City Counselor’s office.
Q. One of your own race? A. One of our 

own race.
Q. All right. Tell us, unless they said some­

thing special, in which event you may indicate it, 
tell us what vTas the response by the Mayor and 
either Mr. Hay or Mr. Darst, if they entered into 
the discussion. A. The Mayor said it was all 
new to him; he didn’t know7 anything about it; it 
was the first time it had been brought to his atten­
tion, and he called on Mr. Darst, and Mr. Darst 
spoke and he said that the question hadn’t come 
up at the time that he made the contract with the 
opera company, and that when he made the contract 
it was a stock contract, that he obtained it when he 
consulted other cities wdiere they had municipal 
auditoriums, and he didn’t see anything of that 
kind in the contract, but, after he had made the 
contract, he didn’t see how he could do anything; 
he didn’t see any clause in any other contract that 
he had obtained from other cities with regard to 
the admission of Negroes,

Q. Well, did he say there was a clause of that 
kind in this contract? A. No; he said that he 
hadn’t thought of that, and that he couldn’t control, 
after he leased it out to private individuals, whom 
they vTould admit. Then in answer to that I said 
this: ‘ ‘ That the opera season will soon be over, 
so it doesn’t make so very much difference about 
this present opera, but w7hat wTe are mostly con­
cerned about is your future policy. Could you put 
a clause in your future contracts so there would 
not be any discriminations against Negroes on ac-



45

count of their race?”  and he said no, that was 
impracticable, that couldn’t be done.

Q. Mr. Darst said that? A. Mr. Darst.

Plaintiff’s Exhibit No. 1 is a copy of the 
contract used by the City when it leases the build­
ing. It was introduced into evidence.

PLAINTIFF’S EXHIBIT 1

THIS AGREEMENT is made and entered into
this..................... day of .................................  19.....,
by and between the City of St. Louis, a Municipal 
Corporation of the State of Missouri, acting by and 
through the Municipal Auditorium Commission, 
party of the first part, hereinafter referred to as
the AUDITORIUM, and.............................................
................ .......... .... ............ .....  party of the second
part, hereinafter referred to as the EXHIBITOR. 
The EXHIBITOR is desirous of having the non-
assignable use of the ........................... ...................
in the Municipal Auditorium and Community Cen­
ter Building in the City of St. Louis, State of 
Missouri, upon terms and conditions as hereinafter 
expressed.

NOW, THEREFORE, THIS AGREEMENT 
WITNESSETH:

For and in consideration of the sum of One 
Dollar, lawful money of the United States, by each 
of the parties hereto to the other in hand paid, the



46

receipt whereof is hereby acknowledged, and in 
further consideration of the mutual covenants here­
inafter contained, the parties hereto agree:

FIRST: The AUDITORIUM in considera­
tion of the promises of the EXHIBITOR to the 
AUDITORIUM hereinafter expressed, hereby 
grants to the EXHIBITOR, a non-assignable, re­
vocable license to use the............................... ...........
in the Municipal Auditorium and Community
Center Building for the purpose of.........................
............................  therein a....................................... .
it being the intent of this agreement to furnish 
to the exhibitor the use of the interior, auditorium
and lobby of the..........................................................
in the Municipal Auditorium and Community Cen­
ter Building for the purpose of................................
therein .......... ........................................... ................
above mentioned, excluding from this license and 
reserving unto the AUDITORIUM, the manage­
ment’s box or space in said....................................... f
in the Municipal Auditorium and Community Cen­
ter Building, contained and all other space on the 
inside, outside and roof of said premises which is 
not hereinbefore specifically granted to the EX­
HIBITOR.

SECOND: For such non-assignable, revoc­
able license, the EXHIBITOR agrees to pay to the 
AUDITORIUM at the City Treasurer’s Office in 
the City Hall of St. Louis or at the office of the 
AUDITORIUM the sum of ($.....................)
...................................................................... Dollars,
plus any tax which may be imposed on such



47

 ..................... by any govern­
mental authority, payable in cash or Cashier’s 
Check to the order of Treasurer, City of St. Louis, 
payable as follows:....(one-fourth upon signing of
this instrument, one-fourth within ten days of date 
of first performance under this contract and bal­
ance before noon of the day of the first perform­
ance under this contract), and if for any reason 
said rental be not paid as aforesaid, it is agreed 
that any box office receipts in the possession of the 
AUDITORIUM may be applied to the payment of 
said rent.

THIRD: The EXHIBITOR shall .................
.......... ..................... ........................................ in said
...............................................of the Municipal Audi­
torium and Community Center Building during 
said term only what is known as ............................

FOURTH: The AUDITORIUM agrees dur­
ing the term of said license to furnish said..............
as above defined.........................................................

FIFTH: The EXHIBITOR agrees to pay 
every other expense of every name and nature 
whatsoever, and every charge incurred in connec­
tion with the..................................................  of said
................................... -................................... in said
.........................................................  not hereinabove
provided to be paid for by the AUDITORIUM, 
and does hereby agree to indemnify and hold harm­



48

less the AUDITORIUM from any claim or claims 
on account of such costs, charges or expenses; and 
the EXHIBITOR hereby authorizes the AUDI­
TORIUM to retain on account thereof any moneys 
heretofore received by it from the EXHIBITOR.

SIXTH: The license hereby granted by the
AUDITORIUM to the EXHIBITOR for the use
of said.................................................................... , is
subject to the following further terms and condi­
tions, to all of which the EXHIBITOR hereby 
assents and agrees:

(1) Should the attraction of the EXHIBITOR 
be deemed by the manager of the AUDITORIUM 
to be at any time publicly criticized as illegal, in­
decent, obscene, immoral or in any manner publicly 
offensive, the AUDITORIUM shall have the right 
and is hereby given the right to demand of the 
EXHIBITOR that he immediately delete such por­
tions of the production as have received such criti­
cism or to re-write or have changed the said attrac­
tion so that it will not be publicly offensive or of­
fensive to the manager of the AUDITORIUM and 
the EXHIBITOR agrees immediately upon receipt 
by it of such notice to make such changes.

(2) The EXHIBITOR does further agree not 
to distribute or circulate, or permit to be distri­
buted or circulated, any advertising matter or pro­
grams at the entrance to or in or about any part 
of the Municipal Auditorium and Community Cen­
ter Building at any time during the term of this 
Agreement, except such advertising or program as 
may be permitted in writing by the AUDITORIUM.



49

(3) The EXHIBITOR agrees not to deface, 
or permit Ms agents, servants or employees to de­
face, the lobby or the interior walls, or any other 
part of the premises the use of which is hereby 
licensed, in any manner, nor to make permanent 
or other alterations therein, nor to make any altera­
tions or improvements thereon or therein. The 
EXHIBITOR further agrees that the EXHIBI­
TOR and every member of the company organized 
to present the said above-named attraction, and all 
such other persons employed by the EXHIBITOR 
in connection with such attraction, shall abide by 
and conform to the rules and regulations promul­
gated for the government of the said building dur­
ing the term of the license hereby granted and that 
the EXHIBITOR will pay for any and all damage 
which the AUDITORIUM may sustain as a result 
of any act or omission on the part of the EXHIBI­
TOR and/or his agents, servants and employees.

(4) The EXHIBITOR shall at his sole cost
and expense comply with such orders, rules and 
regulations as may be promulgated during the 
period of this license by the various governmental 
departments having jurisdiction over the said 
building in so far as such orders, rules and regula­
tions apply or relate to the operation of said build­
ing and/or the.......... .................................therein.

(5) In case the space contracted for in the 
Municipal Auditorium and Community Center 
Building, or any part thereof shall be destroyed 
or damaged by fire or by any other cause, or if any 
other casualty or unforeseen occurrence shall ren-



50

der the fulfillment of this contract by the AUDI­
TORIUM impossible, the said AUDITORIUM shall 
not in any case be held liable or responsible to the 
EXHIBITOR for any damage caused to him there­
by.

(6) In renting the space above mentioned in 
the Municipal Auditorium and Community Center 
Building to the EXHIBITOR, the AUDITORIUM 
does not relinquish and does hereby retain the right 
to control the1 management thereof and to enforce 
all necessary and proper rules for the management 
and operation of the same, and duly authorized 
representative of the AUDITORIUM may enter the 
same, and all of the premises at any time, and on 
any occasion.

(7) The EXHIBITOR does hereby agree that 
he will not sell or dispose, or permit to be sold or 
disposed, more tickets in excess of the seating 
capacity or admit a larger number of persons than 
can safely and freely move about in the rented 
areas, and the decision of the AUDITORIUM in 
this respect shall be final.

(8) The EXHIBITOR will permit no chairs 
or movable seats to be or remain in the passage­
ways, and will keep said passageways clear at all 
times.

(9) The AUDITORIUM reserves the right to 
control the sale of any and all refreshments and 
other merchandise, in or about the premises, to con­
duct a check room, to make photographs for its 
own records, and other privileges and the EX-



51

HIBITOR shall not engage in any of the aforesaid 
activities without the written consent of the AUDI­
TORIUM. The AUDITORIUM also reserves the 
right through its duly appointed representatives, to 
eject any objectionable person or persons from the 
premises, and by  exercise o f this authority, through 
the duly appointed representative the EXHIBI­
TOR hereby waives any and all claims fo r  damages 
against the A U D IT O R IU M  or any and all o f  its 
officers or agents.

(10) All portions of the sidewalks, entries, 
passages, vestibules, halls, elevators, and all ways 
of access to public utilities of the premises shall not 
be obstructed, or cause to be obstructed, by the 
EXHIBITOR or used for any purpose other than 
for ingress or egress, to and from the premises. 
The doors, skylight, stairways or openings that 
reflect or admit light into any place in the build­
ing, including hallways, corridors and passageways, 
also radiators, and house lighting attachments, 
shall in no way be obstructed by the EXHIBITOR. 
The water closets and water apparatus shall not 
be used for any purpose other than for which they 
were constructed, and no sweepings, rubbish, rags, 
papers or other substances shall be thrown therein. 
Any damages resulting on account of use or mis-use 
thereof of any nature or character whatsoever, 
shall be paid by the EXHIBITOR.

(11) The EXHIBITOR shall not assign this 
agreement nor suffer any use of the premises other 
than herein specified, nor sublet the premises or 
any part thereof, without the written consent of the
a u d it o r iu m .



52

(12) The AUDITORIUM assumes no respon­
sibility whatsoever for any property of any nature 
placed in any part of the premises by the EXHIBI­
TOR or his employees or agents and the AUDI­
TORIUM is hereby expressly released and dis­
charged from any and all liability for any loss, in­
jury or damage to the persons or property that 
may be sustained by reason of the occupancy of the 
premises under this agreement, and all watchmen 
or other protective service desired by the lessee 
must be arranged for by special agreement.

(13) The EXHIBITOR agrees that should it 
be necessary to employ any help and/or labor 
other than that specified herein, that he employ and 
pay for such help and/or labor and that such help 
and/or labor shall be members of the recognized 
unions who have jurisdiction over such help and/or 
labor.

(14) If the EXHIBITOR desires to have his 
performance or performances broadcast, making 
use of the broadcasting facilities of the AUDI­
TORIUM, he shall obtain the consent of the man­
agement. Only the broadcasting equipment of the 
AUDITORIUM shall be used for such broadcasts 
unless with the consent of the management.

In Witness Whereof, the parties hereto have 
caused these presents to be duly signed and sealed 
the day and year first above written.

By
Title.



53

By
CITY OF ST. LOUIS, MO.,

Comptroller.
MUNICIPAL AUDITORIUM,

B y ...............................................
Manager.

(On back)

Contract .................
Unit

Date

MUNICIPAL AUDITORIUM 
and

COMMUNITY CENTER 
BUILDING 
Leased To

REMARKS:

Mr. Owens testified further that the Mayor 
had someone call Mr. Golterman to come over but 
Mr. Golterman was busy and could not do so. The 
Mayor then made an appointment with Mr. Goiter- 
man to meet this committee at eight o ’clock the



54

following morning in the Auditorium; that Mr. 
Golterman was at the meeting the following morn­
ing; that the same group was present and in addi­
tion there were Mr. McLemore, Mr. Bledsoe and 
Mr. Golterman.

A. Mr. Golterman stated that he had given 
Grand Operas in several cities and was quite ex­
perienced along that line, and that was the first 
time he had ever had a question of this kind to 
come up. He stated that the opera here was 
started by people who had subscribed to large 
blocks of seats, as well as the boxes, and he felt 
that if Negroes were permitted to go on the first 
floor indiscriminately that they would cancel their 
subscriptions and he would not like to assume 
the responsibility of making a decision on that 
matter until he had consulted his opera commit­
tee, and he wanted a day or so to do that before 
he would give a decision on that.

Mr. Redmond: (continuing) Q. Was it at
this meeting that Mr. Hay, the City Counselor, 
offered any proposition?

A. Yes, Mr. Hay did at this meeting. Mr. 
Hay stated that he could appreciate why the col­
ored people would object to being given certain 
seats, if the colored would be given undesirable 
seats that it was no more than reasonable they 
would object to it; but he said if any section of 
the theater, if you were given a particular place 
set aside, as it were, over some various sections, 
he thought that would be reasonable and fair; and,



55

of course, we discussed it pro and con from that 
angle. But, at any rate, Mr. G-olterman couldn’t 
give any decision, even on that, until he had con­
sulted his committee.

Plaintiff’s Exhibit No. 2, being a letter re­
ceived from the Mayor acknowledging receipt of 
a letter which Mr. Owens had written the Mayor 
after he had received the decision from Mr. Goiter- 
man, was introduced in evidence. It reads as fol­
lows:

EXHIBIT NO. 2

Office of the Mayor 
CITY OF ST. LOUIS

(Seal) The Common Seal of the City of St. Louis.

Bernard F. Dickmann 
Mayor

April 25, 1934.
Mr. Robert N. Owens, Chairman 
Emergency Advisory Council for Negroes 
2947 Delmar Boulevard 
St. Louis, Missouri.
Dear Sir:

Your letter of April 21st received, and I have 
referred same to Hon. Frank J. McDevitt, Chair­
man of the Auditorium Commission.



56

The Auditorium Commission is in charge of 
the affairs of the Auditorium and decide on the 
policy of the Auditorium and I have asked them 
to make an appointment with your committee re­
garding the matter.

Sincerely,
Bernard F. Dickmann,

Mayor.

The Court: Go on.
A. We met Mr. Golterman’s son in the cor­

ridor of the Auditorium about three o'clock (the 
next day). He said his father was quite busy 
preparing for the opera and was not able to be 
there, but he read there a prepared statement, and 
in his statement, as far as I can recall, he stated 
that those who had bought tickets, or who had 
tickets, they would be honored but, so far as that 
tended to the policy of selling Negroes tickets, they 
would adhere to the original policy. That is the 
sum and substance of it.

Plaintiff’s Exhibit No. 3, being a letter to Mr. 
Robert N. Owens from Mr. McDevitt, Chairman of 
the Auditorium Commission, was offered in evi­
dence and reads as follows:

“ May 18, 1934. Dear Sir: The Audi­
torium Commission has considered the matter



57

which you had brought to its attention, and 
instructed the manager, Mr. James E. Darst, 
to write and inform you what action the Com­
mission decided upon. (Signed)

Frank J. McDevitt, Director of Streets 
and Sewers.”

Plaintiff’s Exhibit No. 5, being a letter from 
Mr. Darst, was introduced in evidence and reads as 
follows:

“ Attorney Kobert N. Owens, Chairman.

Dear Sir: At its last meeting, the Audi­
torium Commission heard your letter and 
directed me to refer you to a rule of the Com­
mission made at a previous meeting:

When the Auditorium Commission, 
through the Manager, leases any part of the 
Auditorium for use for any sort of dramatic 
production, concert, reception, athletic event, 
etc., it shall leave to the discretion of the 
lessee any regulations regarding admission, 
price, sale of tickets and such matters.

The Commission ruled that this applied 
to the admission of persons of various races 
and that it was within the province of the 
lessee to say who would be admitted and under 
what conditions.



58

Mr. McDevitt has asked me to transmit 
this to you for your information.

Very truly yours, (Signed)
James E. Darst.”

On Cross Examination: That I attended one
celebration during the dedication of the Auditorium 
that being Negro Night; that white people were 
present; that a white lady set next to me; that I 
do not know of any discussion concerning the seat­
ing of Negroes at performances other than at 
the Opera; that the meeting called at eight o ’clock 
in the morning was in an effort to, try to adjust 
the matter between the colored people and Mr. 
Golterman; that the proposition suggested by Mr. 
Hay was discussed; that an attempt was made to 
explain the situation the City was in as between 
Mr. Golterman, the lessee, and the City; that the 
meeting was pleasant and no harsh words were 
passed; that there was a conference the next day 
with Mr. Golterman’s son; that I tried on the 
3rd of October to get a ticket for the present 
Opera; that the ticket seller said her instructions 
were from Mr. Golterman; that I understood the 
sale of the tickets was under the direction of Mr. 
Golterman; that Mr. Darst had nothing to do with 
the sale of the tickets.

On Re-direct Examination: That no written 
communication was received from Mr. Golterman 
and the last word was the letter published in the



59

paper that showed that the Auditorium Commission 
had charge of the building.

SIDNEY ft, WILLIAMS testified that he is 
the Assistant Industrial Secretary of the St. Louis 
Urban League; that he reserved some tickets to 
the Opera and when he went to get them he was 
advised by the lady at the window that she had 
orders from Mr. Golterman not to sell tickets to 
any Negroes unless she had specific orders from 
him and consequently he was denied his tickets; 
that he later secured tickets from a member of 
another group (white person) in the City; that 
he used the tickets and was completely surrounded 
by white people; that the relations there were 
most cordial.

On Cross Examination-. That my tickets were 
ordered at the Auditorium; that I was seated in 
the dress circle; that I did not see any other colored 
people at the first performance; that I saw some 
at a subsequent performance; that I do not recall 
seeing a couple of colored ladies on the first 
floor; that I remember seeing Mr. Hay at the 
Opera; that I saw him in the mezzanine next to 
Mr. Dickman.

Examination by the Court: That Mr. Dickman
was in a box; that the first Opera presented was 
Aida and the second was 11 Travatore; that I went 
again and saw Madame Butterfly; that the eon-



60

ference was held, resolutions were adopted by the 
committee and as a result of that meeting I could 
get tickets without any difficulty following this 
condition that was set forth under which we could 
get them; that I reserved my tickets through a 
lady at Washington University.

On R ecross Exam ination : That the people 
around me were most cordial; that many people 
looked at us when we walked in; that after the 
first act we walked around and several outstanding 
citizens and members of the committee spoke to 
us and there was a change of the expression of a 
number of other people; that the ushers were 
cordial; that after the conference I got my tickets 
from the Aeolian office. Apparently word had 
been passed on to her.

Redirect Examination'. That the tickets had 
been reserved by a white person for me.

R ecross Exam ination: That I was refused 
tickets for the first performance and got a white 
person to get them for me; that I got the tickets 
myself for Madame Butterfly.

Examination by the C ourt: That a white friend 
got tickets for II Travatore for me as I had been 
refused; that I got tickets myself for Madame 
Butterfly which was following the conference.

S. R. REDMOND (B. Ex. pp. 56-63) testified



61

that he is an attorney and. has lived in St. Louis 
about five years; that the tickets to the Opera are 
tax exempt; that he got tickets to Negro Night 
hut wanted some to the other nights and wrote 
Mayor Dickman on behalf of the N. A. A. C. P. 
a letter of protest to remind him of the fact of 
all the colored people there were in the City and 
asked him if some provision could be made whereby 
they could get tickets to the other five per­
formances; that the Mayor sent me a letter and 
one or two hundred tickets to see St. Louis on 
Parade which was an automobile show downstairs; 
that I was unable to get tickets to the night per­
formances other than the one known as Negro 
Night; that the free performances had nothing to 
do with the Opera; that I went to the Aeolian on 
Friday to get two tickets when they were first 
put on sale and the young lady showed me the 
chart and I wanted to get two, two dollar tickets 
for La Tosca and she showed me the two dollar 
tickets started in Row M and ended in Row W ; 
that I wanted some in the center but she offered 
me some over on the side and refused to sell me 
any in the center telling me she had them but 
couldn’t sell them to Negroes; that I later called 
up and asked what was the attitude of the 
Aeolian Music House in selling tickets to Negroes 
and she said that the Negroes were being sold 
tickets on the side for one dollar and two dollar 
seats; that I made a visit there on a Friday and 
called up three or four days later; that I was 
permitted to buy tickets on the side in Row N 
which was the second row of the two dollar tickets;



62

that Row 1ST is upstairs and the only tickets 
Negroes could buy were the two dollar and one 
dollar tickets.

Examination by the Court: That Row N to 
W are the two dollar tickets and from W on back 
are the one dollar tickets; that W, X, Y and Z 
are one dollar seats; that Negroes could buy on 
the side from N to Z but not in the center; that 
I asked for one in the center and the lady said, 
“ I am sorry but that is the only place I can sell 
you a ticket, on the side,”  and then she went on 
to show me how good they were; that I wanted 
center seats; that I went on Friday, the first day 
the tickets were sold, so that I could get as near 
to the front of the two dollar tickets as possible; 
that I was refused a ticket in the center; that she 
did not say right or left side but “ side” ; that 
she offered me seats in Row N, left.

THEREUPON, the plaintiff rested his case.

DEFENDANTS’ CASE IN CHIEF

THEREUPON, the defendants in order to 
sustain the issues in their behalf, offered and 
introduced the following evidence:

JAMES E. DARST (B. Ex pp. 63-85) testified 
that he is superintendent and manager of the



63

Auditorium and secretary of the Auditorium Com­
mission; that the Auditorium Commission is a 
body under which I work; that it consists of 
seventeen men appointed by the Mayor, of which 
Mr. McDevitt is chairman; they are the governing 
policy body and entrust the actual management 
to me and when a question of policy arises, I 
always report the matter to them; that I am in 
charge of the executive part of the building and 
I am under the general direction of this Com­
mission; that I have had this position ever since 
the Auditorium was opened and several months 
prior to that; that the dedicatory exercises lasted 
the better part of two weeks; that the Commission 
and the Mayor, in order to make the building as 
widely used as possible, set up a general super­
visory committee composed of several hundred 
for the dedicatory exercises; that every group in 
the City was represented on the committee and it 
was decided to turn one night over to each group 
for a show with the understanding that the tickets 
were to be free; that there are approximately 
thirty-five hundred seats in the Opera House; that 
the performers wanted two thousand which left 
about fifteen hundred to the general public and 
the tickets were given to the members of the com­
mittee after two thousand had been given to the 
performers; that no plan was made for the order 
in which the seats should be located; that they 
were given out indiscriminately; that no complaint 
was made of discrimination; the only complaint 
being the inability to get seats; that the colored 
people were well represented on the citizens’



64

committee and had a night which their repre­
sentative asked for; that there were no complaints 
about being denied admission; that there was an 
unusually heavy demand for the colored per­
formances; that I have seen colored people in the 
large Auditorium frequently; that Negroes at­
tended the play ground affair and participated in 
it; that no complaints were made because Negroes 
were excluded; that I recall a complaint made 
about the sale of tickets for the Opera last spring; 
that I was summoned to the Mayor’s office rather 
late one afternoon and found the group referred 
to by the witness. "We went into a conference. 
The Mayor was present and Mr. Hay, and the 
Mayor called me in to state the situation as I 
understood it, which I did, and I told it, and my 
recollection of it is about the same as the wit­
ness. When the contract was written no such 
matter came up. At that time, the Opera was 
about to start in a few days or very shortly; that 
I do not recall any discrimination since that time; 
that I do not know of any dissatisfaction or ex­
clusion since then; that neither the Committee 
nor I have adopted any policy excluding Negroes 
from the Auditorium; that no complaint has come 
to me because of the adoption of such a policy; 
that neither I nor any member of the Commission 
have entered into any arrangements with any 
lessee as the result of which colored people wTere 
to be excluded; that since the dedication, the large 
Auditorium has been used for attractions spon­
sored by colored people; that no complaint has 
been registered about any restrictions that were



65

imposed upon their use of the Auditorium; that 
Miss Franklin wrote the Commission a compli­
mentary letter; that she gave a performance for 
the Mildred Franklin School of Expression; that 
the tickets for admission were turned over to Miss 
Franklin, the lessee, and she distributed them as 
she saw fit; that there were no restrictions on 
the distribution of those tickets; that I have kept 
informed only in a general way as to the sale of 
the Opera tickets; that the Grand Opera Society 
founders sell their own tickets and none are sold 
at the Auditorium at all; that no complaint of 
colored people being unable to get tickets for the 
present Opera has come to me; that I was in 
charge of the Auditorium when the Christmas 
dinner was given; that colored people were ad­
mitted there free; that I was there all day and 
there was no discrimination whatever; that 
Negroes were served meals on the same basis as 
the whites; that they were at the same tables 
with the whites; that I am familiar with the 
construction of the Auditorium building as to 
sound and vision; that in my opinion, in the case 
of the Grand Opera, there would be very little 
choice of seats; that we have an acoustically per­
fect house; that you can sit in the last row of 
the balcony and hear a very softly modualted voice 
on the stage and there was no post in the way of 
the vision at all and I would as soon sit in the 
back row as the front of the balcony; that there 
is some difference in the seeing and hearing but 
not appreciative; that there is an exhibition hall



66

on the first floor and four assembly halls used for 
dances in the Auditorium; that colored people use 
the assembly halls quite frequently; that there is 
no restriction against colored people using them; 
that colored and white use them on the same 
terms; that the only complaint from them has 
been one night they were too hot; that no com­
plaints on account of distinction between -the 
colored and white has ever been made because 
of the hall; when the smaller halls are rented the 
tickets are turned over to the lessee to sell as he 
sees fit; the same policy applies to colored people; 
that no complaint has been received about Negroes 
using the halls but on the contrary received com­
pliments ; that I did not give the young lady selling 
tickets to the Opera instructions not to sell tickets 
to Negroes; that I gave no instructions to any 
young lady or anyone else about selling tickets; 
that I had nothing whatever to do with the sale 
of Grand Opera tickets.

On Cross Examination: That the Auditorium
is used preeminently for pay performances; that 
when the Negroes complained of discrimination 
the contract for the use of the Auditorium building 
had been executed; that the second contract for 
the Opera was negotiated at approximately the 
same time as the first one; that since then a 
contract has been entered into for the performance 
of the Follies; that no provision saying there shah 
be no discrimination on account of races was in­
serted in the contract; that I am acting under 
instructions of the Commission; that the Audi-



67

torium Commission has full control over the 
Auditorium; that I was present when the Com­
mission took up Mr. Owens’ letter and wrote him 
that the Commission took a vote on policy and 
decided to let the lessee handle the matter of 
admissions; that I leased the building to Miss 
Mildred Franklin and she wrote a letter praising 
the Commission; that every seat in the Auditorium 
is a good seat; that the prices range from one 
dollar to five dollars which is customary; that 
the comptroller makes contracts for the City; that 
I conduct all preliminaries; that the contract is 
written in my office; that we didn’t reserve the 
rights to sell tickets and prefer not to sell them; 
that most lessees use our ticket sellers but a large 
proposition like the Symphony or Grand Opera 
has its own ticket sellers; that there is a separate 
booth for their sellers and one for our own; that 
we retain control of the building during the 
performance; that is preparing a lease, we have 
never discussed with lessees about permitting 
colored people to come in as other citizens; that 
we did not treat the matter of discrimination 
lightly but the form of contract is one used 
throughout the country; that it was drawn by the 
City Counselor and passed on to the Auditorium 
Commission and I couldn’t arbitrarily change it; 
that protection of union labor was passed on by 
the Committee and it is customary to protect the 
morality of the citizensp that it was impossible 
to make any change in the contract that had 
been signed; that I was informed the one dollar



68

and two dollar tickets were being sold to Negroes 
and all of them were sold; that I did not protest 
to the Auditorium Commission and the Auditorium 
Commission did not protest the sale of only one 
dollar and two dollar tickets to Negroes.

EDWARD GOLTERMAN (B. Ex pp. 85-88) 
testified that he is secretary of the Grand Opera 
Founders; that the sale and distribution of tickets 
is under his supervision at the box office of the 
Aeolian Company; that he is there several times 
daily; that there have been no complaints this 
season from colored people on account of having 
been denied the purchase of tickets for the Grand 
Opera;

Q. Do you know what policy has been adopted 
there for the sale of the tickets to the colored 
people for the present opera1? A. Yes, our 
policy is to sell tickets from the lower “ N”  back 
the entire second section of the balcony for $2.00 
and $1.00.

The Court: Q. What row?
A. All over this row “ N,”  Your Honor, that 

my father gave those instructions through me; that 
the girl in charge is complying with those instruc­
tions.

On Cross Examination: That the lease for the 
last spring called for ten performances and was 
made between my father and Mr. Darst; that five



69

performances were given last year and eight this 
year; that the second lease for eight performances 
was signed about a month or two months ago.

WILLIAM CBONK (B. Ex. pp 88-99) testi­
fied that he is treasurer of the Municipal Audi­
torium and has been since last March; that I sell 
tickets as the lessee wants me to do so; that I 
have never refused to sell tickets to a person be­
cause he was colored; that I have never received 
a complaint from colored people because they could 
'not buy tickets; that I see colored people going to 
entertainments frequently; that as far as I know, 
Negroes have never been excluded; that the only 
complaint I have ever heard was for the Grand 
Opera last spring.

Cross Examination: That they have had 
other performances there and I remember tickets 
were sold to Negroes; that my instructions were 
to sell the tickets to colored people as well as 
any others; that I don’t remember how many 
performances were given in the large Auditorium 
between the time the Grand Opera closed last 
spring and the summer; that I have no idea; that 
I saw Negroes go to the Marionettes; that Father 
McDonald, who presented the Marionettes, wanted 
no discrimination whatever; that I do not re­
member the exact time of the voting on some 
issue about then but that we had nothing to 
do with that; that I called Father McDonald up



70

and asked him should tickets be sold to Negroes 
and he said sell to colored as well as to white;

Q. If he told you to restrict to white people, 
you would have excluded the colored! A. I 
would have done------

Q. (Interrupting) But you are working for 
the Municipal Auditorium Commission? A. 
That is right.

Redirect Examination: That if a controversy 
came up about whether to sell tickets to colored 
people or not, I would take it up with my superior, 
Mr. Darst.

On Recross Examination: That Father Mc­
Donald who is a priest Avho was in charge of the 
“ Queen’s Work” ; that he brought the Marionettes 
to St. Louis for the benefit of the “ Queen’s 
Work” ; that it was his idea and order that 
Negroes be admitted as any other people at those 
performances.

On Further Direct Examination: That on no 
occasion other than the Grand Opera has there 
been a question as to whether the colored people 
should be admitted or not; there has been no 
complaint about the colored people except at the 
Opera; that Father McDonald was not leasing 
the Auditorium because iof the election.

On Further Recross Examination: That I 
called Father McDonald up because I knew him 
personally and it was a matter I wanted to



71

clarify in my own mind; that there was no need 
for clarification but I just wanted to know how 
he wanted the tickets sold.

Q. The policy was not to admit Negroes, and 
you wanted to see what Father McDonald wanted 
'to do? A. There was no policy set up about 
it at all.

Q. Well, what was the need for the call? A. 
There was just a question in my mind as to 
how he wanted it handled.

Q. Did you ask him if you must sell tickets 
to Indians? A. I would not be that imperti­
nent to Father McDonald.

Q. Well, you asked him with reference to 
Negroes? A. I asked him how he wanted to 
handle his ticket sales.

Q. With reference to Negroes, you must 
have said that? A. That was brought up in 
many of the discussions we had about tickets. 
There was some difference in the tickets, which 
is in the printing of them.

Q. I am talking about the time you called 
Father McDonald and asked him about the sale. 
I want to know the cause of the call. Why was 
it necessary to call him as to what he wanted 
done, if the policy was to treat all alike? A. I 
I said there was a question in my mind and I 
called him up.

Examination by the Court:

Q. Just what led you to speak to Father 
McDonald on the subject of whether or not you



72

should sell to Negroes as well as to whites, Mr. 
Cronk? That is the point of inquiry. A. I 
just wanted to satisfy a question in my own mind.

Q. Well, why should you have that question 
in your own mind? A. Well, working in 
theaters for a number of years around St. Louis, 
I  had that thought in my mind.

Q. And not because of any policy that had 
theretofore been followed in selling tickets for 
admission to the hall? A. No, sir.

MILDRED P. FRANKLIN testified that she 
teaches dancing and is connected with the 
Mildred P. Franklin School of Dancing; that her 
school gave the entertainment mentioned by Mr. 
Darst; that the tickets were turned over to her 
and she had absolute charge of all tickets, that 
some were sold through the box office at the 
Auditorium and were handled by the City; that 
no complaints came to her because of refusal to 
admit colored people; that there were no restric­
tions whatever on the use of the Auditorium 
and she had absolute charge; that she received 
most courteous treatment from the Auditorium and 
had no complaint at all.

On Cross Examination: That she did not
discriminate against white people who attended 
her performance; that her performance was in 
the large Auditorium; that during the summer 
months I serve as dancing director on the City



73

pay roll and have served since 1930 and would 
like to serve next summer; that I was instructed 
to issue 250 or 300 tickets on four occasions, 
three of them being in the Opera House; that 
the tickets were distributed promiscuously over the 
house with no discrimination whatever; that those 
performances were free; that there was absolutely 
no discrimination in connection with those tickets 
given by the City.

CARR CABANNE LINK (B. Ex. pp. 102-104) 
testified that he is general assistant of the 
Municipal Auditorium and has charge of the serv­
ice staff, ushers and ticket takers; that the 
ushers work under my direction; that I am always 
on the floor whenever there is a performance; 
that I have been there since January; that I 
have seen colored people go to the large auditorium 
at different times; that Negroes are seated wher­
ever their tickets call for; that I have never had 
a complaint from a colored person not being 
admitted where he ought to be.

On Cross Examination: That I have nothing
to do with the policy of the Auditorium and do 
as my superiors direct.

CHARLES M. HAY (B. Ex. pp. 104-116) 
testified that he is City Counselor of St. Louis



74

and a member of the Commission; that I heard 
the testimony about the complaint last spring 
and think it is substantially correct; that I was 
not present at the Commission when the resolution 
was offered and passed with reference to the 
sale by the lessee; that the Commission had in 
mind absolute freedom of access of all matters 
of a municipal nature and over which the City 
had control; that there would be no question 
with respect to any performance so far as the 
City is concerned; that it is the consensus of the 
Commission that where the lessee leases the 
building, the lessee would have the right to 
determine the policy to be adopted but it was 
not in the minds of the Commission to discriminate 
or eliminate any colored person but it was with 
the conception of the right of the lessee, in order 
to be fair to the lessee, in the matter; that the 
Commission was very much concerned when the 
Opera matter came up and it was an affair of 
Mr. Golterman, the lessee, and the colored people; 
that the Commission feels that there should be 
free and full use of the building in all matters 
over which the City has control; that I heard no 
further complaint and was surprised when suit 
was filed as I thought the matter had been sat­
isfactorily adjusted; that I am not sure there 
would be no hesitancy on the part of the Com­
mission to reconsider its present policy which is 
not satisfactory to an appreciable number of 
people because we want to adopt an attitude of 
absolute fairness to colored people as well as the



75

rest of the community; that I saw a couple of 
colored ladies sitting three of four seats in front 
of me (that was on the main floor); that I don’t 
know of any member of the Commission who has 
any desire to discriminate against colored people.

On Cross Examination: I thought this matter 
had been adjusted; that I heard for the first time 
in this case that Negroes were sold only two 
dollar and one dollar tickets and didn’t know 
anything about it; that the contract was in final 
form when it was submitted to my office and 
I vouched for its form; that the City retains 
general control of the building during the per­
formances ; that I do not know if that would enable 
the City to say you can not discriminate and 
would be very happy to have the opinion of the 
Court on it; that the Commission wants to be 
fair to the lessee; that the freedom of some may 
be restricted in order that others may have free­
dom; that it never entered my head as to whether 
the colored people had rights or not any more 
than the question of any other people; that the 
theory of exclusion never occurred to me; that 
Union labor is one of the things that is to be 
protected and it is to the credit of the colored 
and white people of this community that when 
one sits down to pass on a contract he doesn’t 
think of the race question, it is so foreign here; 
that I think that if, instead of filing this law 
suit, you had come to me or come to the Com­
mission, this whole thing could have been ironed



76

out to your entire satisfaction; that I did not 
know the Commission voted to give the lessee full 
control of those who entered performances until 
that matter was entered into here today; that I 
did not know that the committee had acted on 
that matter; that I was not present when a motion 
was made to permit Negroes to go to the Audi­
torium just like white people; that Darst had so 
many meetings of the Commission I had to stop 
going.

Examination by the Court: That Mr. Darst
stated that he had entered into the contract for 
the Opera and no question arose at the time about 
Negroes being admitted and it was too late now 
to change the contract; that I don’t recall whether 
anything was said indicating what the policy 
would be later on; that the contract for the 
present Opera season was made in May; that 
nothing has come up before the Commission 
concerning the policy of admission since Mr. 
Owens was advised of the Commission’s action; 
that I saw colored people at the Opera and 
thought the thing had been ironed out; that the 
attitude of the Commission remains the same now 
'as expressed in Mr. Darst’s letter to Mr. Owens 
(Upon inquiry by the Court, Mr. Darst stated that 
this matter has not been discussed by the Commis­
sion since he wrote Mr. Owens the letter which 
appears in evidence).



77

ALFRED FLEISCHMAN testified that he 
is superintendent of recreation for the City; that 
the recreation department had three affairs at 
the Auditorium and he was in charge; that there 
was no question about discrimination and tickets 
were given .out to various children through the 
supervisors who were white and colored; that no 
complaints of discrimination were received from 
colored people but a number of them sent many 
compliments; that white and colored were included 
indiscriminately and sat in the front and back 
rows.

At this point defendants offered a letter from 
A. J. Cos sin which was marked Exhibit “ B ”  
which complimented the City on the performance.

On Cross Examination: That the per­
formances were free and by tickets; that there 
was no disturbance because white and colored peo­
ple sat together and the children dressed in the 
same dressing room.

During a conversation between the Court 
and counsel, Mr. Golterman stepped up and stated 
that under their policy, the only place Negroes can 
buy seats is from “ N”  back in the balcony, they 
cannot go in the lower part of the house at all.

The Court: Very well. Now, you have that 
qualified. Now, on the facts after, and I am 
going to deal with the situation from now on—I



78

mean I am not going to be bothered much by 
what happened last spring, that water has gone 
over the dam, why bother about it. You want 
your rights determined now and hereafter, not 
what you were deprived of six months ago. Now, 
we have the facts as to what is the attitude of 
this opera, this lessee, as to this season’s opera, 
which is ended now, as to Mr. Golterman, no 
seats for your race anywhere except in the bal­
cony from “ N,”  inclusive, back------

Mr. Golterman: (Interrupting) That is cor­
rect.

The Court: (continuing) And the City’s
attitude that they have a right to those, so that 
is a fact.

Mr. Hay: Yes, that is the attitude that we 
have taken and contend by this resolution which 
was adopted. They take the position that the 
lessees should have the right to determine the 
'rules and regulations. I think this, further; of 
course, that resolution goes to that whole extent.

! The Court: Absolutely.

Mr. Hay: And there has been no subsequent
action, and I think that is the position we must 
stand on.

The Court: Now, I understand that in so 
far as the powers of this Commission are con­
cerned, they are before me somewhere through



vX
"

M U S I C  H A L L  
A Y U N I C I P A L  A U D I T  O K I  U

O R C H E S T I C  A  
F L O O R  P L A N



78

mean I am not going to be bothered much by 
what happened last spring, that water has gone 
over the dam, why bother about it. You want 
your rights determined now and hereafter, not 
what you were deprived of six months ago. Now, 
we have the facts as to what is the attitude of 
this opera, this lessee, as to this season’s opera, 
which is ended now, as to Mr. Golterman, no 
seats for your race anywhere except in the bal­
cony from “ N,”  inclusive, back-.....

Mr. Golterman: (Interrupting) That is cor­
rect.

The Court: (continuing) And the City’s
attitude that they have a right to those, so that 
is a fact.

Mr. Hay: Yes, that is the attitude that we 
have taken and contend by this resolution which 
was adopted. They take the position that the 
lessees should have the right to determine the 
'rules and regulations. I think this, further; of 
course, that resolution goes to that whole extent.

The Court: Absolutely.

Mr. Hay: And there has been no subsequent
action, and I think that is the position we must 
stand on.

The Court: Now, I understand that in so 
far as the powers of this Commission are con­
cerned, they are before me somewhere through



M U  S I  C H A L L  
M U N I C I  P A L  A U D I T O R I U M

O R C H E S T R A  
F L O O R .  P L A N



M U S ) 
M U N I C I P A



79

the pleadings, either by the pleadings or something 
attached by the pleadings. There: is an ordinance 
creating this commission?

Mr. Redmond: Yes, sir.

The Court: And they are doing that because 
the city hasn’t control of that situation!

Mr. Hay: I don’t think so, under the action 
of the Commission.

A diagram of the building was marked 
Exhibit 5 and offered in evidence.

THEREUPON, defendants rested.

THEREAFTER, on the 20th day of May, 1935, 
the submission of the case was set aside and it 
was reopened for the introduction of the follow­
ing testimony:

DEFENDANTS’ ADDITIONAL EVIDENCE

EDWARD J. BURKE (B. Ex. pp. 133-157) 
testified that he is superintendent of operation 
of the Municipal Auditorium; that on the 2nd 
of this month he pointed out certain locations 
in the Municipal Auditorium to His Honor, Judge 
Ryan, Attorney Redmond, Mr. Senti and Mr. Hay;



80

that the parties mentioned first went to the Opera 
House and it was pointed out that the distance 
from the stage to the north wall is seventy-five 
feet and the distance from the orchestra pit to 
the main floor of the balcony is one hundred and 
fifty feet; that the question of acoustics came 
up and a stranger was seated in a balcony; that 
Judge Ryan spoke to him to see if he could hear 
and he could and the Judge asked him to go 
to the last row and repeat his questions and he 
did; that the tone of voice Judge Ryan used was 
considerably lower than one used by a performer 
on the stage; that at the time Judge Ryan was 
talking, he was on the first floor near the stage 
and the other man was in the last row of the 
balcony; that the balcony consists of a separa­
tion, consisting of two parts, the lower part being 
known as the dress circle and the upper part is 
the balcony; that each aisle runs east and west; 
•that the lower part has 119 seats; that the lower 
part is termed the mezzanine row consisting of 
112 seats and in front of them are the boxes; 
that the boxes seat 108; that there are 20 boxes 
seating from four to six each; that back of the 
mezzanine is the lower balcony; that the dress 
bircle is now called the balcony; that the part 
of the dress circle below the mezzanine seats 71:9 
and are rows A to L; that the two mezzanine 
rows are called A and B ; that the first row of 
the lower balcony is A ; that the dress circle is 
A to L inclusive; that an aisle separates L and 
M and above the aisle are rows M to Z; that



81

there are 854 seats in rows M to Z ; that we 
left the balcony and went to the assembly halls; 
that there are four assembly halls; that assembly 
'hall No. 3 seats 698 people; that all are identical 
but rent for different amounts; that there is an 
elevation in one end and it is used for stage 
productions; that it rents for $75.00 because it is 
fixed up for a theater; that halls No. 1 and No. 2 
rent for $50.00 and No. 3 and No. 4 for $75.00; 
that the main hall rents for $375.00; that the ex­
position hall is on the ground floor and runs 
under the entire structure from Market Sreet to 
the alley, a distance of about 468 feet; that the 
distance east and west is about 276 feet; that 
we did not go into the main room that is now 
under construction; that is the convention hall 
and is on the same floor as the orchestra in the 
Opera House; that its seating capacity is 8500 
(and can be made to seat 12,000 and 13,000.

On Cross Examination: That the place was
empty when Judge Ryan made his test of hearing; 
that originally the two large compartments 
upstairs were known as the dress circle and bal- 
Icony; that its name was changed three or four 
months ago. “ I said in the beginning, in naming 
the lower portion the ‘ Dress Circle’ and the 
other top part the ‘Upper Balcony,’ they did not 
want the folks to get the impression that the 
tipper balcony was a gallery, or what was termed 
‘ Negro Heaven,’ and I added on to it and apolo­
gized for it, as I knew it, that I paid ten cents 
to get into the gallery, the third floor was always



82

known as ‘Negro Heaven.’ ”  (B. Ex. p. 143.) 
That that statement slipped, while the gentlemen 
above-mentioned were inspecting the building; 
that the name of the place was not changed because 
it was referred to as Negro Heaven; that you 
should hear better when the Opera House is 
filled rather than when it is empty; that there 
has been no complaint of the acoustics; that the 
elevator goes to the balcony where we were 
standing at the time, and that patrons are seated 
from there upward; that the elevator goes to 
the landing between the upper and lower balcony; 
people wanting to go from rows M to Z would get 
off on that level and walk up; that there are 
thirteen rows of seats and two steps to a row and 
counting the landings there are about thirty steps 
from where you get off the elevator to the last 
row; that the dedication covered fifteen days; 
that the Opera House was in charge of a dif­
ferent person during the dedication exercises; 
that the Negroes had one night; that there was 
no charge for admission; that the Mayor has 
called a number of meetings at different places 
in the building; that all affairs given by the 
Mayor were open to all citizens; that the price 
of tickets is left to the lessee; that there have 
been one or two occasions where tickets in the 
upper balcony have been the same as those in 
the orchestra; that in all theaters the cheapest 
seats are those in the upper balcony; that the 
upper balcony seats are the farthest back; that 
the seats in the upper balcony are cheaper than



83

those in the lower balcony; that the distance 
from row M to row Z is 35 feet; that row Z is 
about 40 or 50 feet from the first floor of the 
orchestra, the rear end; that the rear end is 
higher than the other end as the floor slants; 
that the seating capacity of the orchestra is 1770, 
the boxes, 108, the mezzanine 112, the lower 
balcony or dress circle, from A to M, 719, the 
'upper balcony, M to Z, 854, making a total of 
3563 seats; that the assembly halls seat 698; 
the convention hall is intended to seat 8500 per­
manent seats; that the distance from A to L in 
the balcony is 17 feet and from M to Z is 19^ 
feet; that row A in the lower balcony is from 10 
to 12 feet above the orchestra floor; that the dis­
tance from row A down to the orchestra floor would 
go about 15 or 16 feet.

PLAINTIFF’S REBUTTAL EVIDENCE

ROBERT L. WITHERSPOON testified that 
he had testified in this case before; that he has 
occupied a seat both in the orchestra and the 
balcony of the Opera House; that the seat in the 
balcony was six or seven rows beyond M and he 
had to lean over most of the time in order to hear 
what was going on on the stage and the hearing 
was very difficult; that I sat five rows most the 
rear down stairs and the hearing was good; that 
one can hear much better in the orchestra than 
in the upper balcony; that the colored population



84

of St. Louis is between 93,000 and 95,000; that a 
large number of the colored people are tax-payers.

On Cross Examination: That I did not make 
any complaint to the Auditorium staff about the 
difficulty in hearing; that those are the only two 
times I have been in the Auditorium; that I had 
to lean over to see what was going on when I 
was up stairs; that I could see much better down 
stairs than up stairs.

WALLACE B. CHRISTIAN (B. Ex pp. 163- 
173) testified that he is a physician and has 
practiced since 1906; that he has practiced in Mis­
souri since 1919; that sound travels in waves and 
one would hear probably better at the distance of 
150 feet if there was a slight elevation and no 
'obstruction; that any break such as an alleviated 
body or any material that does not give back a 
sound in an alteration and a mitigation in the 
transmission of sound; that you can hear better in 
an empty auditorium than in a full auditorium 
though in an empty auditorium you might get 
some echoes; that a large number of individuals 
cannot sit way up high; that they are not accus­
tomed to height and have some discomfort when 
they are put on an elevation; that this is not 
limited to sick people; that most any heart 
condition or a kidney condition will cause this 
feeling; that any person who weighs 200 pounds 
has some inconvenience from walking up two



85

flights of steps; that a person with defective 
hearing could not hear as well in the balcony and 
that a nearsighted person could not see as well.

On Cross Examination: That I was in the 
Auditorium merely looking through it; that the 
seats are slightly elevated; that sound waves are 
continuous and any obstruction would naturally 
interfere with them and to illustrate, one individual 
two seats behind would get less sound than the 
individuals in front if he is between that person 
and the point which the sound comes. His body 
is an interference to some extent; that if the 
person behind were elevated there would not be 
the same obstruction as if he were on the same 
level; that loud speakers overcome the obstruction 
to a certain extent; that sound can be so intense 
the drum of the ear will not record it which ex­
plains why we can some times hear better on the 
radio from a distance; that some people experience 
discomforts on an elevation; that if they could 
not see anything below it would not make any 

■ difference but if they could see something, like 
the street, then their reactions would be in ac­
cordance; that there is discomfort or dizziness 
sitting in a seat in the balcony that is somewhat 
higher than the other seats; that the discomforture 
depends on how much higher the seat is than the 
individual’s accepted position; that the discomfort 
increases in proportion to the height above his 
normal.



86

EDWARD J. BUBBLE was recalled by de­
fendant and testified that there are amplifiers 
that come off the stage board to take care of the 
Opera House; that it is on at all performances 
unless a request is made to leave it off; that 
unless a person is absolutely deaf, there is no 
reason any person should not hear very clearly 
all over the building; that when Judge Ryan spoke 
at the Auditorium the other day, it was just his 
natural voice; that no complaint has ever come 
about the hearing and the acoustics are praised; 
that I have been to all parts of the building; that 
an exception might be with an amateur performer 
who is not accustomed to throwing his voice, it is 
a trifle difficult to hear; that with average hearing 
you should hear a voice all over the building.

Both sides rested.

THEREUPON, plaintiff presented to the 
Court and asked the Court to find the following 
Binding of Facts:

FINDING OF FACTS

Request having been made for a finding of 
facts separate from conclusion of law, the Court, 
in compliance therewith, does find from the evi­
dence that Joseph P. H;arris, the plaintiff, is a Ne­



87

gro; that there are about 95,000 Negroes living in 
the City of St. Louis, Missouri; that thousands of 
them are tax payers.

The defendant City of St. Louis erected and 
maintains the Municipal Auditorium with public 
funds raised from the taxation of all citizens 
regardless of race or color; that Negroes, because 
of their race and color, are discriminated against 
in the use of the Municipal Auditorium in that 
they are not permitted to sit anywhere they choose 
in the Oepra House of the Municipal Auditorium 
but are restricted to use of the seats in the balcony.

Judge.

THEREUPON, plaintiff presented to the 
Court and asked the Court to give the following 
Conclusions of Law:

CONCLUSIONS OF LAW

The Court declares the law to be:

That it is the duty of the defendants to use 
public property for the purpose for which it was 
erected and to make it equally accessible on the 
same terms to all citizens regardless of race, creed 
or color.

That the City of St. Louis and the other de-



f’endants cannot permit their lessees to do what 
they themselves cannot do.

That it is illegal for the defendants to exclude 
members of the Negro race from certain sections 
of the Opera House at public performances solely 
because of their race and color, and that such 
exclusion on the part of the defendants was 
discriminatory and resulted in a loss to petitioner 
and he is entitled in this action to an injunction 
restraining the defendants from a continuation 
of the discriminatory practices.

Judge.

Both of which were refused by the Court and 
plaintiff duly excepted and still excepts.

FINDINGS OF FACT AND LAW BY THE 
COURT

(Caption omitted)

This case filed August 27, 1934, was heard 
October 11 last on a return to an order to show 
cause issued September 24, was later fully briefed 
and argued, and on April 8, the return was re­
filed as an answer and reply filed and cause sub­
mitted on the merits on the evidence heard in Octo­
ber.



89

The petition alleges plaintiff is a citizen and 
resident of St. Louis for forty years, a tax-payer 
and owner of real estate, and that he brings the 
action for himself and such other citizens as care 
to join therein. Makes suitable allegations identi­
fying the defendants, the City of St. Louis, the 
City Treasurer, H. C. Menne, Director of Public 
Service Joseph M. Darst, Manager of the Audi­
torium James Darst, and states the other defend­
ants are Members of the Municipal Auditorium 
Commission, a body created by City Ordinance No. 
40145. Alleges that pursuant to the Constitution 
of the State, the Charter of the City, and a City 
Ordinance a bond issue of $5,000,000 was proposed 
and adopted by a vote of the people to acquire a 
site and a civil building, to be known as the 
“ Municipal Auditorium and Community Center 
Building”  to be used holding public meetings, 
gatherings, conventions to discuss public questions 
* * # and to provide suitable meeting places
for educational, moral, musical, industrial, labor, 
and other purposes. That the building is now 
wholly or partly completed and is being used for 
and by some citizens and tax payers to the exclu­
sion of others. Ordinance No. 40145, approved 
June 27, 1933, is pleaded whereby the Commission 
was authorized and its power and duties defined. 
The Commission consisting of the Mayor, the 
Comptroller, the President of the Board of Aider- 
men, the City Counselor, the Director of Streets 
and Sewers, the Director of Public Safety, five 
Members of the Board of Aldermen, selected by



90

that body, and seven others to be appointed by 
the Mayor, to hold office during his pleasure, to 
represent certain bodies, convention bureau, etc., 
etc., all serving without compensation. The Com­
mission to act in an advisory capacity in the man­
agement, control and use of the building, with 
power to make rules and regulations, cooperating 
with civic bodies that work to the same end to 
secure events appropriate for the Auditorium and 
Community Center, and which would benefit the 
City. The Commission to establish a schedule of 
charges for the use of the building, and with the 
right to exempt in whole or in part from any 
charges for use by the convention of an organiza­
tion which might draw an attendance that would re­
sult in a considerable return to the City. All 
monies collected for the use of the Auditorium 
and Center to be deposited with the City Treasurer, 
The Convention, etc., Bureau to be afforded suf­
ficient office space to aid its civic activities in 
bringing events here, and to be charged for space, 
heat, etc., as determined by the Commission. Plain­
tiff alleges he is a Negro and that the Commission, 
in violation of the Constitution, Charter, and 
Ordinances, have deprived him and all Negroes of 
the full and same right of admission to public at­
tractions given in the Auditorium, and of the bene­
fits derived from the building. That he has been 
taxed for the erection, upkeep, etc., of the building 
and this money and the money of thousands of 
other Negroes, as part of the general revenue of 
the City, is used for this public building and it is



91

operated in an illegal manner by defendants in 
that they discriminate against Negroes, and deny 
them admission to public performances therein, and 
the nse of the revenue while such discrimination 
continues is illegal. That as a subterfuge the de­
fendants have concocted a plot whereby the large 
auditorium is rented to individuals who connive 
with defendants and are permitted and encouraged 
and' allowed to refuse to sell tickets of admission 
to public performances to Negroes solely because 
they are Negroes.' That he has no remedy at law 
and hence prays equitable relief to-wit to enjoin 
defendants, etc., from leasing, renting, etc., said 
building or parts thereof for performances for edu­
cational, etc., purpose that promote the common 
wealth at which plaintiff or members of the Negro 
race are excluded or denied the same rights of ad­
mission as any other race, solely because of their 
race or color, and from paying City funds to main­
tain, etc., the building until it is operated so there 
will be no race segregation or discrimination, etc.

The answer makes * some formal admissions, 
and then specifically denies any taxpayers use the 
building to the exclusion of others, and denies they 
have deprived plaintiff and all others of his race 
of the same right of admission to, and opportunity 
to attend public attractions given in the Audi­
torium, and deny they are depriving them of 
benefits etc., derived from the building. Deny 
illegal operation of the building by discrimina­
tion or that there was a plot or a conniving with 
others to refuse to sell Negroes as alleged. The



92

reply is in effect a denial of defendants’ denials. 
The evidence was, in substance, that plaintiff, re­
sident here over fifty years, a tax payer about 
thirty years, and a deputy clerk in our Probate 
Court, and others of his race, all who testified be­
ing very respectable persons engaged in various 
occupations, had sought to buy tickets for admis­
sion to different parts of the Auditorium to hear 
grand opera, presented to the public by Mr. Guy 
Golterman, the licensee from the City, which acted 
through the Muncipal Auditorium Commission, for 
a period of some weeks in the spring of 1934, when 
the Auditorium was first opened to the public, and 
again in the fall of that year. The license, which 
seems to have been based on forms used in other 
cities, was non-assignable and revocable, and re­
served the right of the City to control the manage­
ment of the Auditorium, and to enforce all neces­
sary rules for its management and operation. It 
provided for certain payments for the use of the 
Auditorium, and contained numerous provisions of 
no moment here. There was nothing in the license 
that in any way restricted the right of the licensee 
to say that Negroes, or any other persons of what­
ever kind or race, should not be permitted to oc­
cupy seats except in such parts of the house as the 
licensee might designate for their use. Plaintiff 
arid his witnesses testified they sought to buy 
tickets of admission at the office on Olive street 
where tickets were sold and were denied the right 
to buy seats save certain side seats on the main 
floor and certain one dollar seats in the upper 
balcony. More expensive and more desirable seats



93

not being sold to Negroes. There was some ques­
tion of whether this refusal was by direct authority 
of the Commission through Mr. Darst or because of 
Mr. Golterman’s orders, but that is immaterial for 
this reason. A committee, thoroughly representa­
tive of the colored people, had a conference with 
the Mayor, and others representing the Commis­
sion, protested against the discrimination as to 
their people, and suggested a clause in the license 
contracts forbidding same. The result was that on 
May 1.8th a letter was sent the chairman of the 
Committee, Mr. K. N. Owens, signed by Mr. James
E. Darst for the City Commission reading as fol­
lows :

“ At its last meeting the Auditorium Com­
mission heard your letter and directed me to 
refer you to a rule of the Commission, made at 
a previous meeting:

When the Auditorium Commission through 
the Manager leases any part of the Audi­
torium, for any sort of dramatic production, 
concert, reception, athletic event, etc., it shall 
leave to the discretion of the lessee any regula­
tions regarding admission, price, sale of tickets 
and such matters.

The Commission ruled that this applied to 
the admission of persons of various races and 
that it was within the province of lessee to say 
who should be admitted and under what condi­
tions.”
This is a very explicit statement of the City’s 

position and policy which the evidence shows re-



94

mains unchanged.. There has been some modifica­
tion by Mr. Golterman by way of liberalizing his 
policy as to seats for colored people. Instead of be­
ing limited to parts of the upper balcony on the 
right and left of center, they may now occupy any 
balcony seats. They could formerly buy only some 
seats in the rear sides of the main, or orchestra, 
floor, which seats 1770 people. It does not ap­
pear explicitly what is the present rule as to that 
floor but the Court’s conclusion from the evi­
dence is that the rule as to that floor has not been 
changed. The second floor is arranged thus: In
front a row of boxes seating, in all, 108; then two 
rows of mezzanine seats for 120; then the lower 
balcony, called at the hearing the dress circle, rows 
A to L inclusive, seating 719; then a passage way 
(on a level with the last upper stop of elevators 
from the lobby floor of the building) and then the 
upper balcony, rows M to Z inclusive, seating 854. 
The length of a line drawn from the stage to row 
Z, the extreme high row in the upper balcony, 
would be about 150 feet. The acoustics are excellent 
and speakers on the stage may be heard in the up­
per balcony. Loud speakers are used. The very 
large stage may be seen clearly from all parts of 
the house, the scenes or people on the stage may 
not be distinguished so satisfactorily from the up­
per parts of the house, and one sees better down 
stairs than up. One of plaintiff’s witnesses said 
persons over fifty, or very heavy, or with cer­
tain troubles, (heart, kidney, vision,) might have 
difficulty in ascending to and using the high parts 
of the house. There are four assembly halls, with



95

stages, two on either side of the large hall, which 
will each seat 698. Two of these may be used for 
dances. There is a great space called the exposi­
tion floor beneath the entire building, and the in­
terior is now being finished of a convention hall, 
in the south end of the bidding, that will ordinarily 
seat 8500, and seats may be added to accommodate 
in all between 12000 and 13000. The large hall 
rents for $375.00, the Assembly halls for $75.00 and 
$50.00. There are lounge rooms, etc., adjoining the 
large hall and each of the assembly halls. Mr. 
Golterman, Jr. testified there had been no com­
plaints from colored people during the fall season 
of opera. The colored people were fully represent­
ed on the large Citizens’ Committee that arranged 
the various civic celebrations, lasting some days, at 
the opening of the Auditorium Center in the spring 
of 1934, and were freely admitted to all the civic 
entertainments. They had their own night of en­
tertainment in the Auditorium, (where the grand 
opera was later presented) and Miss Franklin, a 
colored teacher of dancing, used it for a dance re­
cital of her school of dancing. Miss Franklin, who 
is a director of dancing for the City during sum­
mer months, said she distributed blocks of tickets to 
admit colored people to the three Play Ground 
Festivals given by the City in the Auditorium in 
April and September last year. Colored people 
have also freely rented the assembly halls for their 
own use. Sometimes fraternities have used the 
halls admitting only their own members. Prac­
tically all the use made, since the opening of the 
building in the spring of 1934, of the large audi­



96

torium, and the assembly halls and exposition floor, 
has been made by licensees, paying the City there­
for. In all the entertainments given under the di­
rect auspices of the City there has been no dis­
crimination, and there was no evidence that li­
censees, other than Mr. Golterman who only pre­
sented Grand Opera, in any wray discriminated 
against colored people, and no complaints were 
made by them as to any discrimination save in the 
Grand Opera seasons. Mr. Hay, the City Counse­
lor, and a member therefor of the Commission, 
testified it did not intend to discriminate against 
colored people but, while wanting to be absolutely 
fair to them, the Commission did believe the licen­
see should have the right to control the question of 
v/ho should be permitted to attend the entertain­
ments, for which the license was granted. That 
licensees might limit attendance to the people of 
a special race or color or creed if they saw fit to 
do so. There was no evidence to sustain the allega­
tion that there was a plot entered into by defend­
ants among themselves, or with licensees. Golter­
man or any other, to refuse to sell tickets of admis­
sion to the large auditorium to negroes because 
they were negroes. One witness for the plaintiff 
stated there were between 93000 and 95000 colored 
people in this city, as per the 1930 census, many 
of whom were taxpayers. The part hereof descrip­
tive of the building is taken from the evidence 
given in court May 20, after a visit to the building, 
made May 6, by the court accompanied by counsel 
for plaintiff and defendants—and plaintiff person­
ally. The above resume’ not only sets forth the



97

salient points necessary for consideration of the 
legal questions presented by counsel but is a find­
ing of facts that meet a request made by counsel for 
plaintiff when the case was finally submitted May 
20th.

The petition might be dismissed because of 
failure to prove the specific charges made as the 
basis of complaint, namely, that the building was 
operated in an illegal manner in that the defend­
ants discriminated against negroes, and denied 
them admission to public performances, and hence 
the use of revenue from the building was illegal, 
and that defendants had concocted a plot in renting 
the large auditorium to individuals who connived 
with defendants, and were permitted, encouraged 
and allowed to refuse to sell tickets to negroes 
for admission to public performances solely be­
cause they were negroes. However the case took 
a wide range, and the Court will pass on the ques­
tion of the legal right of the city, through its Com­
mission in charge of the Auditorium building, to 
license the use of parts thereof, leaving to the 
licensees’ discretion as to “ the admission of per­
sons of various races, and that it was within the 
province of the lessee to say who should be ad­
mitted and under what conditions.”  Plaintiff con­
tends that this policy of discrimination by the City 
which the City could not make and must prevent 
its licensees from making—Conceding that the City 
could not make it the proof is that when the City 
is the host at entertainments in the building it does 
not make such discrimination, nor does it refuse



98

to let any part of the building to negroes upon the 
same terms as a letting to whites. The legality of 
the bond issue was thoroughly considered by our 
Supreme Court in the 11 alb megger case, 302 Mo. 
573, in an opinion, in banc, written by Judge J. T. 
Blair. The decision turned on the question whether 
money voted was to be used for a public purpose so 
that it came within the provisions of our Con­
stitution Section 3 of Article 10 that: ‘ ‘ Taxes may 
be levied and collected for public purposes only.”  
The substance of the decision is that the “ public 
purposes”  to be served, of providing a building for 
public meetings, conventions, and gatherings of 
various kinds, for educational, moral, musical, in­
dustrial, labor and other purposes, justified the ex­
penditure of public money. The opinion was a 
learned and exhaustive review of what were muni­
cipal rights, and decisions relating thereto, in the 
way of spending revenue for the general welfare 
and happiness of the people, and whatever would 
“ advance the cause of education and morals among 
the people of a community and aid in contributing 
to the general welfare, the progressive influences 
of moral and cultural forces essential to the ad- 
\ancement of the race.”  That the Auditorium 
building would not be used for meetings, exhibi­
tions and entertainments, educational, musical and 
otherwise, held only under the direct auspices of 
the City, may well be inferred from the broad lan­
guage of the proposition voted on, and this was 
recognized by the legislative branch of the City 
government when it passed the ordinance. (No. 
40145), under which the Commission was provided



99

for and giving it the right, in connection with its 
general control of the building, to fix a schedule 
of charges for its use. The building is very large, 
and the accommodations for public gatherings 
range from small halls where seven hundred may 
gather, to the great convention hall that, on special 
occasion, may seat thirteen thousand people. Mani­
festly every step taken was with a view to a struc­
ture that could be used by the City in whole or in 
part as needed, at any time for purely civic mat­
ters, and when not so needed, and that must be 
for the greater part of the time, rented, as to its 
various parts, to persons who would pay for the 
parts used just as one might rent any place for 
purposes of public entertainment. In such event 
the City becomes, for the time, the landlord and 
the person renting its tenant. The Charter gives the 
right to the City to lease, Ordinance No. 40145 
carries out that right with respect to this building. 
It is the law generally that a City when it owns 
property that, for a time, cannot be used for a 
strictly public purpose may rent it for private 
uses. The general rule has been specifically rec­
ognized and applied in this State in the Heger- 
Tower Grave Park case in 323 Mo. 1931, and the 
principle sustained in the much earlier case of 
Attorney General against Schweickhardt, 109 Mo. 
496, which related to the operating of a restaurant 
in Forest Park under a contract with the owner 
made by the City under a City Ordinance. The 
City in matters of that kind does not act in its 
governmental or political capacity but in a quasi­
private capacity.



1 0 0

Counsel for plaintiff in their oral arguments, 
supplemented by able briefs, have emphasized their 
thought that what has happened here is a viola­
tion of the Fourteenth Amendment to the Consti­
tution of the United States, and they have 
analyzed that amendment with clearness and pre­
cision, citing many cases construing it in varying 
circumstances. The Court does not think that 
question is present in this case. The City has not 
segregated colored people from white people. It 
has not discrimiated in any way against the 
former. It has not shut its doors to them, or said 
they cannot make use of this or that part of the 
building, or sit in this or that section of any part 
thereof. It has rented, and undoubtedly will 
continue to rent, any part thereof they wish to 
use to the colored people as to the white people— 
and either, when a renter, may say to the other— 
If you want to come in you will be assigned to 
certain parts only and to none other. That this 
may be irritating and vexing, and may run 
counter to a natural pride is true, but if the City 
may rent a hall as any landlord might do, and it 
is within the legal rights of the lessee as to what 
he may do with the place he has rented for the 
night, or the week, then those admitted only on 
his terms cannot say they have been legally hurt 
—They have no ground for legal complaint be­
cause of his action—This was recognized as true 
by our Supreme Court in the Judah case, in 111 
Mo., where a theatre owner in Kansas City was 
held to have the right to let colored persons oc­



1 0 1

cupy only balcony seats especially set apart for 
their use. Judge Black said:

“ Colored persons have their own schools, 
their own churches, and often their own places 
of amusement. Whites attending places of 
amusement designed specially for colored 
persons may be required to occupy separate 
seats. When colored persons attend theatres 
and other places of amusement, conducted and 
carried on by white persons, custom assigns 
to them separate seats. Such separation does 
not necessarily assert or imply inferiority on 
the part of one or the other. It does no 
more than work out natural laws and race 
peculiarities. It ordinarily contributes to the 
convenience and comfort of both. The col­
ored man has and is entitled to have all the 
rights of a citizen, but it cannot be said that 
equality of rights means identity in all re­
spects. Here the defendants did not exclude 
or attempt to exclude colored persons from 
his theatre. He provided accommodations 
for them, but in doing so required them to 
purchase tickets for and take seats in the 
balcony, and this rule adopted by him accords 
with the custom and usage prevailing in this 
State. Such custom has the force and effect 
of law until some competent legislative power 
shall establish some other and different rule. 
The defendant’s rule was no more than a 
reasonable regulation which he had a right to 
make and enforce.’ ’



1 0 2

That case is the law of this State today, and 
if the Court is right in holding that the City can 
let the different parts of the Auditorium building, 
when not needed for its own use, as any property 
owner might let halls be owned, then it may allow 
the lessee, or licensee, to regulate the admission 
and seating of those who buy tickets, and the Com­
mission’s resolution to that effect is lawful.

It follows that the plaintiff’s petition must 
be dismissed, and judgment entered for defendants 
and it is so ordered.

O ’Neill Ryan,

June 3, 1935.
Judge.

To which action, ruling and order by the 
Court plaintiff duly excepted at the time and still 
excepts.

PLAINTIFF’S MOTION FOR A REHEARING 

(Caption omitted)

Comes now the plaintiff and moves the Court 
to set aside its verdict and grant it a rehearing 
in the above-styled cause for the following reasons:

1. The judgment of the Court is for the 
wrong party.



103

2. The judgment of the Court is against the 
weight of the evidence and contrary to the law.

3. The Court erred in refusing the finding 
of facts and conclusions of law submitted by plain­
tiff.

4. The judgment of the Court is contrary to 
and in violation of Section 30 of Article 2 of the 
Constitution of the State of Missouri in that it 
deprives plaintiff of his liberty and property with­
out due process of law.

5. The judgment of the Court is contrary to 
and in violation of the Fifth and Fourteenth 
Amendments to the Constitution of the United 
States in that it deprives plaintiff of his property 
and liberty without due process of law.

6. The finding of facts made by the Court is 
erroneous and contains many immaterial matters 
and matters not in evidence and omits many per­
tinent and vital matters.

7. The Court erred in putting the Municipal 
Auditorium on the same basis as a private enter­
prise.

8. The Court erred in its conclusions of law.
9. The Court erred in basing its conclusions 

of law on facts not in the record.
10. The judgment of the Court is contrary 

to Section 3 of Article 10 of the Constitution of 
the State of Missouri which provides that taxes



104

may be levied and collected for public purposes 
only.

PLAINTIFF’S MOTION FOE A REHEARING 
OVERRULED

On the 24th day of June, 1935, during the June 
Term of said Court, by an order duly made and 
entered of record, the Court overruled plaintiff’s 
motion for a rehearing; to which action, ruling and 
order of the Court in overruling said motion for 
rehearing, plaintiff, by his counsel, then and there 
duly excepted and still continues to except.

And thereafter, on the 2nd day of July, A. D. 
1935, the plaintiff duly filed in said court in said 
cause, in writing, his affidavit for an appeal in 
words and figures as follows:

AFFIDAVIT FOR APPEAL

State of Missouri, City -of St. Louis, ss.
Henry D. Espy, attorney for Joseph P. Harris, 

plaintiff, being duly sworn, makes oath and says, 
that the appeal prayed for in the above entitled 
cause is not made for vexation or delay, but be­
cause the affiant believes that the appellant is 
aggrieved by the judgment or decision of the 
Court.

(Signed) H enry  D. E spy,
Attorney for Joseph P. Harris, Plaintiff.



105

Subscribed and sworn to before me this 2nd 
day of July, A. D. 1935.
(SEAL) H. Sam Priest,

Clerk.

WHEREUPON, the Court granted plaintiff an 
appeal in said cause to the Supreme Court of Mis­
souri.

BILL OP EXCEPTIONS PILED

Inasmuch as the foregoing evidence, proceed­
ings, matters, things, rulings, and exceptions do 
not appear of record and in order that same may 
be made a part of the record in this cause so as 
to be presented to the Supreme Court of Missouri, 
plaintiff here and now presents to the Court this, 
his bill of exceptions, and prays that the same may 
be settled, allowed, approved, signed, sealed and 
filed and ordered made a part of the record in this 
cause; all of which is accordingly done on this 11 
day of Sept. 1935.

Frank C. O ’Malley,
Judge of the Circuit Court of the 

City of St. Louis, presiding in Divi­
sion No. 2.

O ’Neill Ryan,
Judge of the Circuit Court of the City 

of St. Louis, before whom this cause 
was tried.



106

Approved by:
S. R. Redmond, E sq.,
Henry D. E spy, E sq.,

Attorneys for Appellant (Plaintiff).

Charles M. Hay, E sq.,
Oliver Senti, Esq.,

Attorneys for Respondents (Defendants).

On July 6, 1935, appellant caused to be filed 
in the office of the clerk of the Supreme Court of 
Missouri, a certified copy of the record entry of 
the judgment appealed from in this cause, showing 
the term, day of the term and month and year 
when the same was rendered, together with the 
order of the court granting the appeal herein and 
the docket fee of $10.00 was paid to said clerk and 
said cause is now pending on appeal in this Court.

The foregoing is submitted by appellant as and 
for an abstract of record in this cause.

S. R. Redmond,
Henry D. Espy,

Attorneys for Appellant.





'



INDEX

Title ...................    1
Abstract of Record .................................... 1
Amended Petition ..............    2
Answer .........................................................  7
Reply .......................................................... 9
Plaintiff’s Motion for a Rehearing ...... 10, 26, 102
Findings of Fact and Law ......................... 11, 88
Trial Submission and Judgment .............. 25
Motion for Rehearing Filed and Overruled 26, 102
Application and Affidavit for Appeal..........27, 104
Appeal Granted ........................................... 27, 105
Bill of Exceptions Filed ....... .....................  27, 105
Bill of Exceptions on Behalf of Appellant 27
Appearances ....   28
Finding of Facts ......................................... 86
Conclusions of Law ...................................  87
Certificate .......        106

PAGE

PLAINTIFF’S EVIDENCE
Joseph P. Harris:

Direct Examination ...................   28
Cross Examination ............................. 29
Examination by the Court .................  29
Re-cross Examination .....................   30
Examination by the Court .................  30

J. R. Terry:
Direct Examination ..................   33
Cross Examination ............................  34
Re-direct Examination ..............     34
Re-cross Examination ......................... 35



INDEX Continued

Nathaniel H. Sweets:
Direct Examination ............................. 35
Examination by the Court .................. 36
Cross Examination ..............    37

E. L. Witherspoon:
Direct Examination .............................  37
Cross Examination ............................  39
Examination by the Court .................. 39
Ee-direct Examination.........................  39

Eobert Owens:
Direct Examination ......................   39
Examination by the Court .................. 42
Examination continued .....................  53
Examination continued.........................  56
Cross Examination .............................  58
Ee-direct Examination.........................  58

Sidney E. Williams:
Direct Examination .........................   59
Cross Examination ............................. 59
Examination by the Court .............................59
Ee-cross Examination .........................  60
Ee-direct Examination.........................  60
Ee-cross Examination .........................  60
Examination by the Court ........  60

S. E. Eedmond:
Direct Examination ............................  61
Examination by the Court.................. 62

Plaintiff Eests............................................... 62, 86

PAGE



INDEX Continued

DEFENDANT’S EVIDENCE 
James E. Darst:

Direct Examination ............................  62
Cross Examination ............................  66

Edward Golterman:
Direct Examination ............................  68
Cross Examination .......................    68

William Cronk:
Direct Examination ............................  69
Cross Examination ..............    69
Re-direct Examination .......   70
Re-cross Examination .....    70
Re-direct Examination......................... 70
Re-cross Examination ......................... 70
Examination by the Court .................  71

Mildred P. Franklin:
Direct Examination ............................ 72
Cross Examination ............................  72

Carr Cabanne Link:
Direct Examination ............................  73
Cross Examination ............................  73

Charles M. Hay:
Direct Examination ............................  73
Cross Examination ..............   75
Examination by the Court .................  76

Alfred Fleischman:
Direct Examination ............................  77
Cross Examination ............................  77
Consultation between the court and

counsel ........................................... 77

PAGE



INDEX Continued

Edward J. Burke:
Direct Examination ............................  79
Cross Examination ....................... — 81

Defendants Rest ...........................................  79, 86

PAGE

PLAINTIFF’S EVIDENCE IN REBUTTAL

Robert L. Witherspoon:
Direct Examination .................... ........  83
Cross Examination ...........    84

Wallace B. Christian:
Direct Examination ............................. 84
Cross Examination ............................. 85

DEFENDANT’S EVIDENCE IN REBUTTAL 
Edward J. Burke:

Direct Examination ............................. 86

PLAINTIFF’S EXHIBITS

Exhibit 1—Copy of Contract.....................  45
Exhibit 2—Letter ......................................  55
Exhibit 3—Letter ................................... 56
Exhibit 5—Letter .......................................  57

DEFENDANT’S EXHIBITS 
Exhibit 5—Diagram of building ..............  79



SUPREME COURT OF THE UpITED STATES
I

OCTOBER TERM, 1938

No. 643

WILLIE EYA SIMMONS

vs.
Appellant,

THE BOARD OF EDUCATION OF THE CITY OF 
MUSKOGEE OF THE STATE OF OKLAHOMA 
ET AL.

APPEAL FROM T H E  DISTRICT COURT OF T H E  UN ITED STATES FOR 

T H E  EASTERN DISTRICT OF O KLAH OM A

STATEMENT AS TO JURISDICTION.

C h a r l e s  A. C h a n d l e r ,

Counsel for Appellant.



.



INDEX.

Subject I ndex.
Page

Statement as to jurisdiction...................................... 1
Statutory provisions sustaining jurisdiction. ... 1

The District Court of the United States for 
the Eastern District of Oklahoma had
original jurisdiction of said cause............  1

The Supreme Court of the United States has
jurisdiction of said cause upon appeal. . . .  3

The statutes of the State of Oklahoma contended 
by said appellant to be violative of the Consti­
tution of the United States..............................  4

Date of order and decree sought to be reviewed, 
and date upon which application for appeal 
was presented to trial court and upon which
appeal was allowed to this Court.....................  12

Nature of case and rulings of trial court............  13
Cases sustaining jurisdiction............................  15
Cases in support of the substantial nature of the

Federal questions ...........................................  15
The doctrine of Cumming v. Board of Education

is not applicable to this case............................  16
Opinion of trial court.........................................  16

Exhibit “ A ” —Findings of fact and conclusions of 
law of the District Court of the United States for 
the Eastern District of Oklahoma........................... 19

Table of Cases Cited.

Buchanan v. Warley, 245 U. S. 60, 62 L. Ed. 149......... 15
Cumming v. Board of Education, 175 U. S. 528, 44 L.

Ed. 262....................................................................  16
Herkness v. Irion ei al., 278 U. S. 92, 73 L. Ed. 198.. . 15
Home Tel. and Tel. Co. v. Los Angeles et al., 227 U. S.

278, 57 L. Ed. 510....................   15
McFarland v. Goins, 96 Miss. 67, 50 So. 493..............  15
Norfolk and Western Ry. v. Board of Public Works, 

etc., 3 Fed. Supp. 791............................................... 15
—10012



i i  INDEX
Page

Pierce et al v. Society of the Sisters, etc., 268 U. S.
510, 69 L. Ed. 1070................................................... 15

Reppel v. Board of Liquidation, 11 Fed. Supp. 799. . . 15
State of Missouri ex rel. Gaines v. Canada, etc., No.

57, October Term, 1938, decided December 12,1938. 15
Sterling v. Constantin, 287 U. S. 378...........................  15
Truax v. Raich, 239 U. 8. 33, 60 L. Ed. 131................  15
Yick Wo v. Hopkins, 118 IT. S. 356, 30 L. Ed. 220.......  15

Statutes Cited.

Act of February 13, 1925, Section 8(a) (28 U. S. C.
350, 43 Stat. L. 936).................................................  13

Constitution of the State of Oklahoma, Article 13, 
Section 3 (Yol. II, O. S. 1931, p. 1495, Sec. 13676). . 8

Constitution of the United States, 14th Amendment,
Section 1 .................................................................  3,4

Judicial Code, Section 24, amended (28 U. S. C. 41(1)
and (4 ) ) .......................................... 2

Section 52 (28 U. S. C. 113)..............  2
Section 238, amended (28 U. S. C. 345

(3)) ...............................................  4
Section 266, amended (28 U. S. C.

380) ...............................................  3,4
Oklahoma Statutes of 1931, Chapter 27, Article 5:

Sec. 5412 .............................................................  7
Sec. 5413 .............................................................. 7
Sec. 5414.............................................................. 8

Oklahoma Statutes of 1931, Chapter 34, Article 9:
Sec. 6853 ......................................................  4
Sec. 6861 .............................................................  5
Sec. 6867 ......................................................  5
Sec. 6876 ......................................................  5
Sec. 6880 .............................................................. 6
Sec. 6881 .............................................................. 6
Sec. 6884 .............................................................  7
Sec. 6892 .............................................................. 7

Oklahoma Statutes of 1931, Chapter 34, Article 18:
Sec. 7033 .............................................................. 8
Sec. 7034 9



INDEX 111

Page
Sec. 7035 .............................................................  9
Sec. 7036 ...............................................  9
Sec. 7037 .............................................................  10
Sec. 7038 .............................................................  10
Sec. 7039 .............................................................  10
Sec. 7040, as amended by Sec. 1, H. B. 320, Okla­

homa Statutes, 1937 .......................................  10
Sec. 7045 .............................................................  11
Sec. 7046 .............................................................  11
Sec. 7049 .............................................................  12

Revised Statutes, Section 1977 (8 U. S. C. 41)........... 2
Section 1979 (8 U. S. C. 43)........... 2





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1938

No. 643

WILLIE EVA SIMMONS
vs. Appellant,

THE BOARD OF EDUCATION OF THE CITY OF 
MUSKOGEE OF THE STATE OF OKLAHOMA 
ET AL.

APPEAL FROM T H E  DISTRICT COURT OF T H E  U N ITED STATES FOR 

T H E  EASTERN DISTRICT OF OKLAH OM A

STATEMENT AS TO JURISDICTION.

May it please the H onorable Court :

The appellant in the above entitled cause, Willie Eva Sim­
mons, in support of the jurisdiction of this Honorable Court 
to review the above entitled cause on appeal, respectfully 
represents:

A.
Statutory Provisions Sustaining Jurisdiction.

(a) The District Court of the United States for the East­
ern District of Oklahoma had original jurisdiction of said 
cause.



2

By her first amended and supplemental complaint (R. 1- 
25) filed in said District Court, said appellant prayed for an 
interlocutory injunction and also for a permanent injunc­
tion, under Sec. 266, Judicial Code, Amended, to restrain 
the appellee Mac Q. Williamson, Attorney General and ex- 
Officio Bond Commissioner of the State of Oklahoma; the 
Board of Education of the City of Muskogee, Oklahoma, and 
other local officials from proceeding to issue, sell, certify and 
approve proposed bonds of said Board of Education in the 
sum of $275,000.00, and to restrain said parties from doing 
other acts pursuant to and in the enforcement of the herein­
after mentioned statutes of the State of Oklahoma, it being 
alleged in said complaint and contended by appellant that 
said State Statutes and said acts of the defendants there­
under violate Section 1 of the 14th Amendment to the Fed­
eral Constitution, and violated R. S., Secs. 1977 and 1979 
( I T .  S. C., Title 8, Secs. 41 and 43), providing for equal 
rights of citizens of the United States.

Said appellant, as plaintiff, sued on behalf of herself as 
well as on behalf of many other Negro citizens similarly 
situated. All proper jurisdictional allegations were made 
in said complaint. Plaintiff and all other parties, except 
Mac Q. Williamson, were alleged to be residents of the East­
ern District, and said Mac Q. Williamson, was alleged to be 
a resident of the Western District, all of the State of Okla­
homa (R. 2). It was properly alleged that the amount in con­
troversy exclusive of interest and cost, exceeded the sum and 
value of $3,000.00.

Said District Court for the Eastern District of Oklahoma 
had original jurisdiction. Judicial Code, Sec. 24, Amended, 
U. S. C., Title 28, Sec. 41, paragraphs (1) and (14).

Venue of said cause properly lay in said District Court. 
Judicial Code, Sec. 52; U. S. C., Title 28, Sec. 113.



3

(b) The Supreme Court of the United States has jurisdic­
tion of said cause upon appeal.

Said suit was instituted in said Federal District Court, 
under Sec. 266 of the Judicial Code, Amended, U. S. C., 
Title 28, Sec. 380, amended, for interlocutory injunction and 
also for a permanent injunction to restrain Mac Q. William­
son, as Attorney General and ex-Officio Bond Commissioner 
of the State of Oklahoma, and also to restrain other local 
officers from enforcing and executing the hereinafter men­
tioned statutes of the State of Oklahoma, it being contended 
by appellant that said statutes were unconstitutional and 
violative of Section 1 of Article 14 of Amendment to the Con­
stitution of the United States, and violative of R. S., Secs. 
1977 and 1979, providing for equal rights of persons within 
the jurisdiction of the United States.

It further appeared that due and proper notice of hearing 
in the trial court was properly made and given to said At­
torney General of said State of Oklahoma, to the Governor 
of said State of Oklahoma, as well as to the defendants in 
said cause; and that said cause was heard before a statu­
tory, three-judge court, under J. C., Sec. 266, amended.

This appeal is prosecuted to this Supreme Court of the 
United States from the order of said Federal District Court, 
upon hearing, denying to said appellant an interlocutory in­
junction as prayed for, and also from the final decree in said 
cause, denying to said appellant a permanent injunction as 
prayed for (R. 62, 64).

The appeal herein has been allowed by said Federal 
District Court, and duly perfected to this Court, in all 
respects in conformity with law and agreeably to the rules 
of this Honorable Court (R. 68-106).

Said appellant respectfully contends that this Honorable 
Supreme Court of the United States has jurisdiction in



4

said appeal by virtue of U. S. C. A., Title 28, Sec. 345 
(Judicial Code, 238, as amended by tbe Act of Feb. 13, 
1925); paragraph No. 3 of said Section 238; as well as by 
reason of Sec. 266 of the Judicial Code, Amended; U. S. 
C. A., Title 28, Sec. 380, as amended by the Act of Feb. 
13, 1925, providing for a direct appeal to this Court from 
an order of a statutory three-judge district court denying 
interlocutory injunction, as well as from a final decree de­
nying a permanent injunction in such case. This appeal 
is prosecuted from such order and from such final decree 
in such case.

B.
The Statutes of the State of Oklahoma Contended by Said 

Appellant to be Violative of the Constitution of the United 
States.
It appears from the allegations of the complaint (R. 4, 

paragraph 6), as well as from the findings of fact and con­
clusions of law made by the trial court (copy thereof at­
tached hereto; also, R. 40) that in proceeding to issue, sell, 
and certify the bonds herein sought by appellant to be en­
joined, the appellees are proceeding with the enforcement, 
operation, and execution of the statutes of the State of Okla­
homa, duly enacted by the Legislature of said State, desig­
nated as Article 9, of Chapter 34, 0. S. 1931 (Secs. 6853- 
6914; Vol. I, 0. S. 1931, pp. 1998-2015), and pertaining to 
Independent School Districts.

Appellant respectfully shows to the Honorable Court that 
the provisions of said Article 9 of said Chapter 34, partic­
ularly contended by said appellant to be unconstitutional, 
violative of Section 1 of Article 14 of Amendment to the 
Constitution of United States and also violative of U. S. C., 
title 8, Section 41 (R. S., Sec. 1977), are as follows, to wit: 

Sec, 6853 (Vol. I, 0. S. 1931, p. 1999):
“ 6853. Independent Districts in Cities and Towns.— 

Each city of the first class, and each incorporated town



5

maintaining a four years high school fully accredited 
with the State University, shall constitute an inde­
pendent district and he governed by the provisions of 
this article.”

Sec. 6861 (Yol. I, 0. S. 1931, p. 2001):

“ 6861. Independent District a Body Corporate— 
Powers.—The public schools of each city or town or­
ganized in pursuance of this article shall be a body 
corporate and shall possess the usual power of corpo­
rations for public purposes, by the name and style of
‘ The Board of Education of the city or town o f ------,
of the State of Oklahoma,’ and in that name may sue 
or be sued, and be capable of contracting or being con­
tracted with, of holding and conveying such personal 
and real estate as it may come into possession of, by 
will or otherwise, or as is authorized to be purchased 
by the provisions of this article. ’ ’

Sec. 6867 (Vol. I, 0. S. 1931, p. 2003):
“ 6867. Powers of Boards.—The Board of Education 

shall have power to elect their own officers, except the 
treasurer, to fill any vacancy which may occur in that 
body to serve the unexpired term; to make their own 
rules and regulations, subject to the provisions of this 
article; to organize and maintain a system of graded 
schools; to establish a high school whenever, in their 
opinion, the educational interest of the city demands 
the same, and to exercise the sole control over the 
school and school property of the city. ’ ’

Sec. 6876 (Vol. I, O. S. 1931, p. 2005):
“ 6876. Property Subject to Taxation—Taxes Turned 

Over to Treasurer.—The taxable property of the whole 
city or incorporated town, including the territory at­
tached for school purposes, shall be subject to taxa­
tion. All taxes collected for the benefit of the school 
shall he placed in the hands of the treasurer, subject 
to the order of the hoard of education.”



6

“ 6880. Board May Borrow Money and Issue Bonds 
for Improvements.—Whenever it shall become neces­
sary for the Board of Education of any school district, 
in which is included in whole or in part, a city of the 
first class, to raise sufficient funds for the purchase of 
school site or sites, or to erect or purchase and equip 
a suitable school building or buildings, or both, or for 
the purpose of making repairs of such school building 
or buildings or purchasing a school site or sites, for 
such building or buildings, either or both, it shall be 
lawful for such Board of Education of such city to bor­
row money for which they are hereby authorized and 
empowered to issue bonds bearing a rate of interest, 
not exceeding five per cent, per annum, payable semi­
annually, at such place as may be shown on the face 
of such bonds, which bonds shall be payable in not 
more than twenty-five years from date; and the Board 
of Education is hereby authorized and empowered to 
sell such bonds at not less than their par value: Pro­
vided, that before any bonds shall be issued, the mayor 
of the city composing in whole or in part such school 
district, shall cause an election to be held in such dis­
trict as herein provided: Provided, further, that bonds 
may be voted in one issue at the same election, for any 
or all of the purposes hereinbefore enumerated.”

Sec. 6881 (Yol. I, 0. S. 1931, p. 2007):
“ 6881. Bond Election—Procedure.—It shall be the 

duty of the mayor of each city governed by this article, 
upon the request of the board of education, forthwith 
to call an election, to be conducted in all respects as are 
special elections for city officers in the same city, ex­
cept that the returns shall be made to the board of edu­
cation for the purpose of taking the sense of such 
district upon the question of issuing such bonds, nam­
ing in the proclamation of such election the amount of 
bonds to be voted on and the purpose for which they 
are to be issued; and he shall cause to be published 
in a newspaper of general circulation published in the

Sec. 6880 (Vol. I, O. S. 1931, p. 2006) :



7

said district the time and place of such election, such 
notice to be given at least ten days before such elec­
tion. ’ ’

Sec. 6892 (Vol. I, 0. S. 1931, p. 2009):
“ 6892. School Property Pledged to Pay Bonds.— 

The school fund and property of such city and terri­
tory attached for school purposes is hereby pledged to 
the payment of the interest and principal of the bonds 
mentioned in this article, as the same may become due. ’ ’

It seems that a clear understanding of the afore-quoted 
statutes of the State of Oklahoma, contended by appel­
lant to be unconstitutional, necessitates a consideration of 
the other cognate constitutional and statutory laws of said 
State. Such other and related provisions of the Constitu­
tion and Statutes of the State of Oklahoma are as follows:

Sec. 6884 (Vol. I, 0. S. 1931, p. 2007):
“ 6884. Bonds—Signing and Certifying—Denomina­

tions.—The bonds, the issuance of which is provided in 
the preceding sections, shall be signed by the presi­
dent, attested by the clerk and countersigned by the 
treasurer of the board of education, and shall have en­
dorsed thereon a certificate signed by the county clerk 
or other officer authorized by law to sign such certifi­
cate and the county attorney of the county wherein 
such district is located, stating that said bonds, or evi­
dence of debt is issued pursuant to law and that said 
issue is within the debt limit; provided, that each of 
said bonds shall be for a sum of not less than one hun­
dred dollars.”

Article 5, Chapter 27 (Vol. I, O. S. 1931, pp. 1576-1577):
“ 5412. Attorney General ex-Officio Commissioner.— 

The Attorney General is hereby made ex officio bond 
commissioner of the State of Oklahoma.

“ 5413. Duties of Commissioner—Bonds Incontest­
able 30 Days After Approval.—It shall be the duty of



8

such bond .Commissioner to prepare uniform forms 
and prescribe a method of procedure under the laws 
of the State in all cases where it is desired to issue 
public securities or bonds, in any county, township, 
municipality or political or other subdivisions thereof 
of the State of Oklahoma; and it shall be the further 
duty of said bond commissioner to examine into and 
pass upon any security so issued, and such security, 
when declared by the certificate of said bond commis­
sioner to be issued in accordance with the forms of 
procedure so provided shall be incontestable in any 
court in the State of Oklahoma unless suit thereon 
shall be brought in a court having jurisdiction of the 
same within thirty days from the date of the approval 
of said securities by the bond commissioner.

“ 5414. Bond Invalid Without Certificate.—No bond 
hereafter issued by any political or municipal subdivi­
sion of this State shall be valid without the certificate 
of said bond commissioner.”

Sec. 3, Article 13, of the Oklahoma Constitution (Vol. II, 
O. S. 1931, p. 1495, Sec. 13676):

“ 13676. Separate Schools.—
See. 3. Separate schools for white and colored chil­

dren with like accommodation shall be provided by the 
Legislature and impartially maintained. The term 
‘ colored children,’ as used in this section, shall be con­
strued to mean children of African descent. The term 
‘white children’ shall include all other children.”

And said appellant further represents and shows to the 
court that Article 18 of aforementioned Chapter 34, 0. S. 
1931, concerning “ Separate Schools” , provides as follows:

Section 7033 (Vol. I, 0. S. 1931, p. 2048):
“ 7033. Separation of White and Colored Races.— 

The public schools of the State of Oklahoma shall be 
organized and maintained upon a complete plan of sep­
aration between the white and colored races, with im­
partial facilities for both races.”



9

“ 7034. Definition of Terms.—The term ‘ colored’, as 
used in the preceding section shall be construed to 
mean all persons of African descent who possess any 
quantum of negro blood, and the term ‘white’ shall 
include all other persons. The term ‘public school’, 
within the meaning of this article, shall include all 
schools provided for, or maintained, in whole or in 
part, at public expense.”

Section 7035 (Yol. I, O. S. 1931, p. 2048) :
“ 7035. Separate School Defined.—The county sep­

arate school in each school district is hereby declared 
to be that school in said school district of the race 
having the fewest number of children in said school 
district; provided that the county superintendent of 
public instruction of each county shall have authority 
to designate what school or schools in each school dis­
trict shall be the separate school and which class of 
children, either white or colored, shall have the privi­
lege of attending such separate school or schools in 
said school district. Members of the district school 
board shall be of the same race as the children who 
are entitled to attend the school of the district, not the 
separate school.”

Section 7036 (Vol. I, O. S. 1931, p. 2049):
“ 7036. Allowing child of One Race to Attend School 

of Another—Penalty.—Any teacher in this state who 
shall wilfully and knowingly allow any child of the 
colored race to attend the school maintained for the 
white race, or allow any white child to attend the 
school maintained for the colored race, shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be fined in any sum not less than ten dollars nor 
more than fifty dollars, and his certificate shall be 
cancelled and he shall not have another issued to him 
for a term of one year.”

2 q

Section 7034 (Yol. I, 0. S. 1931, p. 2048):



1 0

“ 7037. Mixed Schools—Punishment for Conducting. 
—It shall be unlawful for any person, corporation or 
association of persons, to maintain or operate any col­
lege, school or institution of this state where persons 
of both white and colored races are received as pupils 
for instruction, and any person or corporation who 
shall operate or maintain any such college, school or 
institution in violation hereof, shall be deemed guilty 
of a misdemeanor, and upon conviction thereof shall 
be fined not less than one hundred dollars nor more 
than five hundred dollars, and each day such school, 
college or institution shall be open and maintained 
shall be deemed a separate offense.”

Similarly, Section 7038 makes it a misdemeanor to teach 
in such mixed school; and Section 7039 makes it a mis­
demeanor to attend such mixed school. In each case, each 
day of such violation is denominated a separate offense.

Sec. 1, H. B. 320, Oklahoma Statutes, 1937, Amending 
Sec. 7040, O. S. 1931 (Okla. Statutes, 1937, p. — ), provides:

“ 320. Separate Schools—Tax Levy—Regulations.— 
In all cases where County Separate Schools for white 
and colored children are maintained, the County Ex­
cise Board shall annually levy a tax on all taxable 
property in their respective counties, sufficient to main­
tain such separate schools as are hereinafter provided. 
Upon estimate made by the County Commissioners, 
said taxes shall be estimated, published, levied, and 
collected in the same manner as other taxes for county 
purposes; provided, however, that in all Independent 
Districts where separate schools for white and colored 
children are maintained, it shall be the duty of the 
Board of Education therein, at the time provided for 
preparing its annual budget, to prepare a separate 
budget showing the amount of money that will be re­
quired to be raised by taxation, for the support and 
maintenance of such separate schools, including a sum

Section 7037 (Vol. I, 0. S. 1931, p. 2049):



li

sufficient to pay a reasonable pro rate share of the cost 
of superintending, supervising and administering the 
schools and school system of said Independent District 
including said separate schools, and the amount neces­
sary to purchase sites and to erect school buildings for 
such separate schools for the coming fiscal year; * * *”

Sec. 7045 (Vol. I, 0. S. 1931, p. 2051) provides:
“ 7045. Teachers—Employment and Qualifications. 

—It shall hereafter be the duty of all County Super­
intendents of Public Instruction to contract with and 
employ all teachers for the county separate schools, 
except independent district, now maintained or here­
after to be established in their respective counties; 
Provided, that the Board of Education in all independ­
ent districts, shall contract with, and employ all teach­
ers in the separate schools of such independent dis­
tricts. Teachers so employed shall possess all the 
qualifications which are now required by law, and the 
County Superintendent of Public Instruction shall have 
the power to prescribe rules and regulations for the 
government of all county separate schools in his 
county, except independent districts.”

Sec. 7046 (Vol. I, O. S. 1931, p. 2051) :
“ 7046. Same.—It shall hereafter be the duty of the 

County Superintendent of Public Instruction to con­
tract with and employ all teachers for the county sep­
arate schools now maintained, or hereafter to be estab­
lished in their respective counties; provided, that the 
Board of Education in all independent districts shall 
contract with and employ all the teachers for the 
schools of such district which have been designated by 
the county superintendents as the county separate 
school within such districts. Teachers, before being so 
employed, shall possess all the qualifications which are 
now required by law, and the county superintendent of 
public instruction shall have the power to prescribe 
rules and regulations for the government of all county



1 2

separate schools in his county, except those within the 
independent districts, and in such independent dis­
tricts where the same is composed wholly or in part 
by a city of the first class the Board of Education of 
such city shall have full control, management and dis­
cipline and prescribe the rules and regulations for the 
government of the separate schools in such districts; 
and that the Board of Education of cities of the first 
class shall keep a separate account of all expenditures 
made in maintaining such separate schools and shall 
at the end of each month, certify the same to the Board 
of County Commissioners of the county in which such 
school district is situated, and said Board of County 
Commissioners shall pay the same.”

Sec. 7049, (Vol. I, 0. S. 1931, p. 2052) :
“ 7049. Payment of Teachers.—Warrants for the 

salary of teachers employed in the separate schools, 
excepting those in independent districts, and all orders 
or warrants for the expense of such schools shall be 
issued upon the Treasurer by the County Clerk and 
countersigned by the County Superintendent; Provided, 
however, that the County Clerk shall not draw on said 
separate school fund for any greater amount for 
teachers employed for any district than is paid the like 
number of teachers for like time by the school district 
for teaching in other schools for said districts.”

C.
Date of Order and Decree Sought to be Reviewed, and Date 

Upon Which Application for Appeal was Presented to 
Trial Court, and Upon Which Appeal was Allowed to 
This Court.
Both the order denying interlocutory injunction and the 

final decree denying permanent injunction were made, 
entered and filed in the trial court on the 12th day of Oc­
tober, 1938 (see order denying interlocutory injunction, R. 
62, and also, judgment (final decree), R. 64).



13

Application for appeal herein (R. 68) to this Honorable 
Court was duly presented to the Honorable Eugene Rice, 
District Judge (and one of the trial judges) on the 4th day 
of January, 1939, within three months after the entry of 
such respective order and final decree, and within the time 
provided by Section 8 (a) of the Act of Congress of Feb­
ruary 13,1925; U. S. Code, Title 28, Sec. 350; 43 Stat. L. 936.

The Appeal herein to this Honorable Court has been per­
fected in all respects in conformity with law, the Equity 
Rules, and the Rules of the Supreme Court.

D.

Nature of Case and Rulings of the Trial Court.
It seems that the nature of the case has been hereinabove 

sufficiently set forth. The trial court denied plaintiff both 
the interlocutory injunction and permanent injunction as 
prayed for (R. 62, 64), and found and held that the statutes 
of the State of Oklahoma in question (Article 9 of Chapter 
34, 0. S. 1931; herein supra; Yol. I, 0. S. 1931, pp. 1998- 
2015) were constitutional and not violative of the 14th 
Amendment. The basis of the rulings of the trial court is 
set forth in its findings of fact and conclusions of law hereto 
attached.

That the Federal constitutional questions involved are 
fundamental, serious, and substantial—and not strained or 
fanciful, appears from the 5th, 6th and 7th assigned errors 
(see assignment of errors, R. 99-107), which are, respec­
tively, as follows:

V.
It appears from the Fifth Finding of Fact that the 

Defendants, under the State laws in question, are pro­
ceeding to expend Five Hundred Thousand Dollars 
($500,000.00) of public funds for improvement of the 
white schools, and that under said State laws it would



14

be illegal for said defendants to expend any part of said 
fund (or of any similar fund) for the separate or Negro 
schools, although the trial court found that the white 
and Negro schools were equally in need of im­
provements ;—such laws and such acts by the defend­
ants deny to Negro citizens and tax payers, includ­
ing plaintiff, equal protection of the laws in violation of 
Section 1 of the 14th Article of Amendment to the Con­
stitution of the United States, and the trial court com­
mitted error in failing and refusing so to find and hold.

VI.
It appearing that under 0. S. 1931, Sec. 7045, the de­

fendant Board of Education of the City of Muskogee 
is given supervision and control of the separate or 
Negro schools in said city; and it appearing from the 
Fifth Finding of Fact (under 0. S. 1931, Sec. 7035) that 
the members of said Board of Education must be of the 
white race; such laws, making it impossible for plain­
tiff, or any other Negro patron or tax payer, to be a 
member of the Board of Education having supervision 
and control of the Negro schools, deny to plaintiff the 
equal protection of the laws and violate Section 1 of the 
14th Article of Amendment to the United States Consti­
tution ; and the trial court erred in refusing so to hold.

VII.
Article 9 of Chapter 34, 0. S. 1931 (Secs. 6880-6884, 

and 6892) purports to give to the defendant Board of 
Education, having supervision of both the white and 
colored schools in the City of Muskogee, ample power 
to issue bonds, secured by all property in the City, to 
provided funds for improving the said white schools, 
but no authority to issue bonds for the improvement of 
said Negro schools; and said laws and the enforcement 
thereof by defendants deny to plaintiff the equal protec­
tion of the laws, they violate Section 1 of the 14th Ar­
ticle of Amendment to the Federal Constitution, and the 
trial court committed error in holding to the contrary.



15

(a) Cases Cited by Appellant in Support of the Jurisdiction
of This Court.

The action being to enjoin the Attorney General, ex-Officio 
Bond Commissioner of the State of Oklahoma, and other 
defendants from enforcing and executing the laws of said 
State alleged to be unconstitutional (under U. S. Constitu­
tion), the District Court had original jurisdiction, and this 
Court has appellate jurisdiction (Judicial Code, See. 266, 
Amended; U. S. C., Title 28, Sec. 380, Amended):

Home Tel. and Tel. Co. v. Los Angeles et al. (1913), 227 
U. S. 278, 57 L. Ed. 510;

Truax et al. v. Raich (1915), 239 U. S. 33, 60 L. Ed. 131; 
Pierce et al. v. Society of the Sisters, etc. (1924), 268 

U. S. 510, 69 L. Ed. 1070;
Herkness v. Irion et al. (1928), 278 U. S. 92, 73 L. Ed. 

198;
Sterling, Gov. of Texas, et al., v. Constantin (1932), 287 

U. S. 378, — L. E d.— ;
Norfolk and Western Ry. v. Board of Public Works, etc.

(1933, D. C. W. Va.), 3 Fed. Sup. 791;
Reppel v. Board of Liquidation (D. C., E. D., La. 1935), 

11 Fed. Sup. 799.

(b) Cases Cited by Appellant in Support of the Substantial­
ity of the Federal Constitutional Questions Involved.

McFarland v. Goins (1909), 96 Miss. 67, 50 So. 493;
Yick Wo v. Hopkins (1885), 118 U. S. 356, 30 L. Ed. 220; 
Buchanan v. Warley (1917), 345 U. S. 60, 62 L. Ed. 149; 
State of Missouri ex rel. Lloyd Gaines v. Canada, etc., 

et al. (No. 57, October Term, 1938, decided Dec. 12, 
1938), not officially reported at date hereof.



1 6

(c) The Doctrine of Oumming v. Board of Education is Not 
Applicable to This Case.

This case, wherein the State statutes in question as well 
as their administration patently and uniformly discriminate 
against the minority group, is not controlled by the doctrine 
of Cumming v. Board of Education (1899), 175 II. S. 528, 44 
L. Ed. 262, in which latter case, in the administration of a 
law which was fair and equal on its face, occurred minor and 
insubstantial inequality which was necessitated by peculiar 
circumstances.

The case of McFarland v. Goins, supra, is squarely in 
point on the present constitutional question raised under the 
14th Amendment; and the opinion in said case clearly dis­
tinguishes the Cumming-Board of Education case from one 
like the instant case.

E.

Opinion of Trial Court.
The trial court did not render a formal opinion, but 

the findings of fact and conclusions of law (pp. 11-32, 
infra) sufficiently disclosed the bases of the rulings of said 
trial court. There were no earlier opinions in this case, nor 
were there any companion cases.

As hereinabove stated, the trial court rendered its order 
denying interlocutory injunction, and also its final decree 
denying permanent injunction (R. 62, 64), and this appeal 
is from both said order and final decree.

It is by this appellant contended that the trial court erred 
and improvidently and abusively exercised the judicial dis­
cretion, in denying both interlocutory injunction and per­
manent injunction, prayed for by appellant. The bases of 
said contentions of appellant are as follows, to-wit:

1. This appellant contended in her complaint (R. 4) 
that said Article 9, Chapter 34, 0. S. 1931, violated the



17

14th Amendment to the Federal Constitution, because 
in the enforcement of said state law the defendants are 
proceeding to expend Five Hundred Thousand Dollars 
($500,000.00) of public funds, for the exclusive benefit 
of the white or Independent Schools in the City of 
Muskogee; that under said state laws it would be illegal 
for said defendants to expend any part of said fund (or 
of any similar fund) upon any of the Negro schools in 
said city; further, that appellant, as a tax payer in said 
city, must under said laws pay taxes to discharge the 
bonds used to raise said funds; and that it would be a 
criminal act for any child of appellant, or of any other 
Negro parent, to attempt to attend any schools so im­
proved by said funds. The trial court held, in effect, 
that plaintiff had an adequate remedy by application 
for writ of mandamus, to procure sufficient funds to 
“ maintain”  said Separate or Negro schools “ a full 
school term”  (See: Fifth Finding of Fact.) Such rul­
ing by the trial court was erroneous, and not dispositive 
of the constitutional question before it, for it was con­
tended by appellant, and the effect of said Amendment, 
that the 14th Amendment guaranteed her the equal pro­
tection of the laws, and not that it guaranteed any group 
a school of any particular quality of length of term.

2. The appellant contended that said laws of the state 
of Oklahoma, creating the appellee Board of Education, 
giving it control and supervision of the Separate or 
Negro schools in the City of Muskogee, and limiting the 
membership of said Board to the members of the white 
race, denied to appellant, as well as to other Negroes, 
the equal protection of the laws. The trial court (Find­
ing No. 4) found that in some of the schools districts in 
the State of Oklahoma, under said state laws, the ma­
jority schools are established and operated for and by 
the Negroes. Said finding and holding by the trial 
court was merely another illustration of the discrimina­
tory and unconstitutional operation of said state laws 
against other minority groups who are denied equal 
protection of the laws; and said finding was not dis­
positive of the constitutional question before said



1 8

court; and said trial court abused its discretion in find­
ing and bolding that said laws in question did not vio­
late said 14th Amendment by denying to appellant and 
other Negroes the equal protection of the laws.

3. By its Fifth Finding of Fact, the trial court found:
“ That up to this time, before this proposition for 

the white schools was made, it appeared from the evi­
dence that white and Negro schools were in equal need 
for improvements”
Then said trial court proceeded to find and to hold that 
said state laws in question, authorizing said appellee 
Board of Education to expend Five Hundred Thousand 
Dollars ($500,000.00) for the improvement of said white 
schools of the City of Muskogee, said public funds to be 
repaid by Negro residents and tax payers, as well as by 
the whites; said Board of Education not being author­
ized to expend any part of said fund (nor of any similar 
fund) for said Negro schools of said city; did not deny 
to said Negro schools or to said Negro residents and tax 
payers of said City, the equal protection of the laws re­
quired by the 14th Amendment. Such holding was so 
clearly erroneous as to amount to an abuse of the judi­
cial discretion.

W herefore it is respectfully submitted by the appellant 
that this Honorable Supreme Court of the United States has 
jurisdiction of this appeal by virtue of Sections 238 and 266 
of the Judicial Code, as amended by the Act of February 13, 
1925.

Respectfully submitted,
Charles A. Chandler, 

Counsel for Appellant.

Note.'—At the date of preparation of this Jurisdictional 
Statement, the Transcript of Record has not been printed; 
and all references therein to the record are to the pages of 
the unprinted record prepared by the clerk of the United 
States District Court for the Eastern District of Oklahoma.



19

EXHIBIT “ A” .

Findings by the Court under Rule 52, the Findings Being 
Made Specially and Conclusions of Law Separately.

Findings of Fact.
(1) That plaintiff is a native born citizen and resident 

of the City of Muskogee, in Muskogee County, Eastern 
District of Oklahoma, all other defendants other than Mac 
Q. Williamson, Attorney General of the State of Oklahoma, 
being citizens and residents of Muskogee County, Eastern 
District of said state, the defendant, Mac Q. Williamson, 
Attorney General and Ex-Officio Bond Commissioner of the 
State of Oklahoma, being a citizen and resident of the 
Western District thereof.

(2) Notice of this hearing before a three-judge court has 
been given to the Governor of said state and to the Attorney 
General thereof as provided by the requirements of the 
judicial code as amended, the Attorney General appearing 
in person. The complainant in open court through her 
attorney states that she does not challenge or question the 
provisions of the Constitution of Oklahoma or of the stat­
utes of said state insofar as they, on their face, provide 
for a separation of the races in the schools of said state.

(3) That defendant, Board of Education of the City of 
Muskogee of said state is a subordinate municipal or politi­
cal corporation. The school district under its administra­
tive control embraces the City of Muskogee and adjacent 
territory thereto attached for school purposes, and the de­
fendants, Arthur Catlett, James A. Lathim, W. H. Cun­
ningham and C. A. Ambrister, and E. D. Cave, except as 
to said Cave, are the duly elected, qualified and acting 
members of said Board of Education, the said Cave being 
the duly appointed, qualified and acting Clerk of said 
board, and other defendants are duly qualified and acting 
officials as designated, to-wit: S. M. McManus, Mayor of 
said city; A. Camp Bonds and Theo Frazier, respectively 
County Attorney and County Clerk of said county in said 
state; and Mac Q. Williamson, Attorney General and Ex-



2 0

Officio Bond Commissioner of said state, and the City of 
Muskogee and the adjacent territory thereto attached for 
school purposes has been duly and legally constituted and 
designated as Independent School District No. 20.

(4) That the majority schools in said district No. 20 are 
designated and established as schools for children of those 
other than of African or negro descent, denominated as 
negroes or colored, the Separate Schools in said district 
being constituted, designated and established as schools for 
children of negroes. That in the State of Oklahoma Sepa­
rate Schools for children have been established and oper­
ated for the two races; that in a number of the districts of 
the State of Oklahoma, the majority schools are established 
and operated for negroes and the Separate or minority 
schools are correspondingly established and operated for 
pupils other than negroes. In the white school districts 
the board members are to correspond with the race for 
which the school is established. If it was for the whites, 
so denominated, the members of the board are to so cor­
respond, if the African or negro race the members of the 
board are to so correspond. That is, if the majority school 
was for the whites, the members of the school board should 
be from the whites, but if the majority school was colored, 
the members of the school board should be from the African 
race.

(5) That in the entire state of Oklahoma, the amount of 
money expended per pupil for the school year of 1935-36 
was approximately $54.00 per capita for white pupils and 
$52.00 per capita for negro pupils, and since that year the 
amount spent per capita for negro pupils has increased 
more in proportion by reason of the operation of the state 
statutes relating to primary and secondary aid. That the 
schools for negroes have been established and are being 
operated in the State of Oklahoma with the same standards 
required as in the case of white schools, and that such negro 
schools so established have increased during the past four 
years more than 24% and high schools established for the 
use of white children have increased only one-fourth of 
1%; that all of said high schools, both for white and 
colored children are duly accredited in the state of Okla­



2 1

homa under the same standards; and that in many cities 
of the State of Oklahoma, other than the City of Muskogee, 
greater amounts are expended for the operation of the 
negro schools than the white schools, particularly in the 
cities of Tulsa and Oklahoma City; that in 38 of the 77 
counties in the state of Oklahoma, the amount per capita 
per annum expended for negro schools is greater than that 
expended for the white schools. That in School District 
No. 20, embracing the City of Muskogee and adjacent ter­
ritory attached thereto for school purposes, the pupils at­
tending negro schools are approximately 23% of the total 
number of pupils in the district; that the negro schools 
have 22% in number of teachers, and have expended a 
budget of approximately 19% of the total amount spent 
for education in said district; that there is expended for 
maintenance of negro schools approximately 22% of the 
total amount expended in said district. That the average 
number of pupils per teacher in the schools of said district 
is 30.2 for the white schools and 31.6 for the negro schools; 
that the average annual salary of teachers in the white 
schools in said district is $1172.72 and in the negro schools 
$887.05; that all the expense of supervision and adminis­
tration, care of grounds and supervision of Art and Music 
of the negro schools has heretofore been paid out of the 
budget provided for the white schools. That substantially 
the same curricula is offered in both the white and negro 
schools and that recent additions and improvements have 
been made to the negro school buildings and, as well, addi­
tional ground has been purchased for their use; that both 
white and negro schools receive the same care and attention 
as to repairs and upkeep; that the negro schools are pro­
vided with a suitable athletic field which is lacking in the 
case of white schools; that the negro high school of the 
City of Muskogee is a duly accredited high school in the 
State of Oklahoma.

That School District No. 20 has heretofore called an elec­
tion for the purpose of voting on the following proposition:

“ Shall the School District comprising the City of 
Muskogee, of the State of Oklahoma, and the territory 
thereto attached for school purposes, incur an indebt­



2 2

edness by issuing its negotiable coupon bonds in the sum 
of two hundred seventy-five thousand ($275,000.00) Dol­
lars to provide funds for the purpose of purchasing a 
site, erecting and equipping a Junior High School, and 
constructing and equipping additions to existing 
schools, all to be owned exclusively by such district; and 
levy and collect an annual tax, in addition to all other 
taxes upon all the taxable property in such district suf­
ficient to pay the interest on such bonds as it falls due, 
and also constitute a sinking fund for the payment of 
the principal thereof, when due, such bonds to bear in­
terest not to exceed the rate of four (4) per centum per 
annum, payable semi-annually, and to become due 
serially within twenty-five (25) years from their date.

“ Provided, however, that the issuance of said bonds 
is expressly conditioned upon the grant to said school 
district of the sum of not less than Two Hundred 
Twenty-five Thousand ($225,000.00) Dollars by the 
Federal Emergency Administration of Public Works, 
said grant to be used as far as may be necessary to aid 
in the payment of the cost of such improvement and 
the balance of such grant to be used for the construction 
of an Athletic Stadium, such Stadium to cost not more 
than Eighty-five Thousand ($85,000.00) Dollars.”

That the election upon said proposed Bond issue was held 
September 15th, 1938, and the same carried and the Board 
of Education advertised for sale of said bonds.

That the evidence does not disclose that any proposition 
is now being made for the improvement of the negro or 
separate school buildings in said district; that all of this 
proposition is for the majority schools or the white schools; 
that up to this time, before this proposition for the white 
schools was made, it appeared from the evidence that the 
white and negro schools were in equal need for improve­
ments. As to whether a county levy has been made for addi­
tional buildings or additions to buildings, that is not clear 
from the evidence.

The proclamation for the call of this election provides:
“ Shall the School District comprising the City of 

Muskogee * * * and the territory thereto attached for



23

school purposes, incur an indebtedness * * * in the 
sum of two hundred seventy-five thousand ($275,000.00) 
Dollars to provide funds for the purpose of purchasing a 
site, erecting and equipping a Junior High School, and 
constructing and equipping additions to existing 
schools. * * * ”

That an athletic stadium does not come within the purpose 
as stated in the proclamation: “ purchasing a site, erecting 
and equipping additions to existing schools * *

That any reservation as to the constructing of a stadium 
from the grant of the Federal Emergency Administration 
of Public Works has not been presented in this case.

That the negro high school auditorium is used also as a 
gymnasium, a part thereof being set off also and used as a 
library, and the negro schools also have an athletic ground 
available for their use. The two high schools for white 
pupils in said city are each equipped with a gymnasium.

That beginning with the fiscal year of 1937-38 by legisla­
tive act and state appropriation substantial and adequate 
primary and secondary aid for the public schools of the 
state, which included not only the white schools but also the 
negro schools, has afforded relief to the end that the schools 
might be adequately maintained for a full school year, which 
was aimed to include from eight to nine months prior to that 
time, and which now is a nine-months ’ school. The available 
school funds prior to that time were not sufficient either in 
the negro schools or the white schools to meet the minimum 
or reasonable requirements for either the white or negro 
schools.

That beginning with the fiscal year 1937-1938, the per 
pupil expenditure in the white high schools was $65.41, and 
in the negro high school was $63.43, and in the white ele­
mentary schools $60.21, and in the negro elementary schools, 
$38.79, and that if these amounts, to-wit, $63.43 for the negro 
high school and $38.79 for the negro elementary schools 
were not reasonably adequate to maintain a full school term, 
that an adequate remedy at law existed by mandamus to re­
quire full levies within the legal limitation to be made for 
tax levies which applied equally to the whites as well as to 
the negro schools, in case the white was the minority or the



24

negro was the minority school, and in many instances in the 
state the whites are in the minority school, and there is no 
showing in the evidence that under the tax limitations an 
additional levy, if such were necessary, was not available.

That the negro high school and white high schools are 
examined by the same inspectors as to qualifications and 
accrediting, and there is no evidence showing any bad faith 
or inefficiency in such examination as to either race.

That as to the Junior College work furnished by the 
white Junior College in Muskogee, the entrants therein 
pay tuition to cover the two Junior College years, and there 
is no evidence in the record to show it is not a reasonable 
tuition, but it does appear that the education therein is not 
free; that if there is any discrimination in this respect, 
there is a legal remedy by mandamus for its correction, 
and there is no evidence shown that any such contention 
has been made or such remedy invoked.

That it does not appear that any part of the Two Hun­
dred Seventy-Five Thousand ($275,000.00) Dollar bond 
issue is to be used for building a stadium, but that the stad­
ium is to be constructed out of the Public Works Adminis­
tration grant, which is the sum of Two Hundred Twenty- 
Five Thousand ($225,000.00) Dollars.

That in said school district, the children of the respective 
races, white and negro, attend separate schools, the ma­
jority schools of said district being attended by white chil­
dren. The members of the Board of Education in said dis­
trict are as provided by the Constitution and statutes of 
the same race as of the children attending the majority 
schools, and the negro children attend the schools desig­
nated as minority or separate schools, the same rule apply­
ing when the negroes are the majority school district, in 
that case the board to be filled by negroes and not whites. 
The existing school enrollment for said schools, white and 
negro respectively, for the school year 1937-38, was 6,391 
white, and 1,916 colored.

That the plaintiff is the mother or parent of a son who 
is of African or negro descent attending said separate 
school in said district, and that she is also of African or 
negro descent, and is a tax payer. That there are many 
other negro residents in said city, citizens of the United



25

States, who are parents of negro children attending said 
separate public schools in said district, and taxpayers in 
said city, and that complainant or plaintiff sues on behalf 
of them as well as for her own benefit.

That the Manual Training High School was erected in 
1909, the Douglas School in 1905, and the Dunbar School 
in 1904, and the evidence shows other additions and im­
provements to the school buildings in said separate dis­
trict since 1909, but there should be some improvement 
apparently, from the evidence, as to the sewerage and toil­
ets, adequate remedy by law being available for such re­
lief.

Conclusions of Law.

(1) That this court has jurisdiction only insofar as the 
constitutionality of the separate school law is involved, as 
contravening the Constitution of the United States, there 
being no diversity of citizenship, the jurisdiction of this 
court being invoked not on the ground of diverse citizen­
ship, the complainant raising a federal question by assert­
ing that her right under the Constitution of the United 
States and especially under Section 1 of the Fourteenth 
Amendment have been violated on account of the provi­
sions in the state constitution of Oklahoma, and the stat­
ute thereof as to separate schools for the negro and white 
races. This court is restricted to the determination of 
that question, as to whether the state constitution and stat­
utes as to separate schools, for the white and negro races 
violate complainant’s federal guaranteed constitutional 
rights. As to the question of the proper administration of 
the separate schools as between the whites and the negroes, 
that issue is not determinable in this case on account of 
lack of diversity of citizenship, the complainant being pre- 
termitted for the determination of her rights in the state 
court where she would have an adequate remedy at law. 
Jew Ho. v. Williamson (9th Cir.), 103 Fed. 10.

(2) The notice served on the Governor and the Attorney 
General wherein the Attorney General also appears in per­
son, complies with the provision of the statute requiring 
such notice as preliminary to his hearing.



2 6

See School District No. 7, Muskogee Co. v. Hunnicut 
(10th Cir.), 51 Fed. (2d) 528; id. 283 U. S. 810; Oklahoma 
Constitution, Article 13, Sections 1, 3, 4, 5, 6, and 7; Article 
10, Section 9 as amended; and Oklahoma Statutes, Section 
7033, 0. S. 1931, Tit. 70, O. S. A. Sec. 451; Section 7034,
O. S. 1931, Tit. 70 0. S. A. Sec. 452; Section 7035, 0. S. 
1931, Tit. 70 0. S. A. Sec. 453; and Section 7040, 0. S. 1931, 
as amended and superseded by Act of May 11, 1937, House 
Bill No. 320, Tit. 70, Sec. 458, Chapter 15, 0. S. A., July 
1937, pp. 554.

In School District No. 7, Muskogee Co. v. Hunnicut, 
supra, it is said:

“ Another contention of the plaintiffs is that the 
action of the county superintendent should be enjoined 
because a discrimination is said to result from the dis­
proportionate funds allowed for the colored school as 
compared with the white school, as the former could 
not then be maintained with equal facilities or advan­
tages, on account of the needs of a greater number of 
pupils.

“ If we assume that there was the alleged disparity 
in the funds, it did not arise from the interchange of the 
schools, but from an insufficient levy by the county ex­
cise board, which is not a party to this suit. It is our 
opinion that the constitutional requirement of equal 
advantages or like accommodations to the schools does 
not mean that the colored race shall have the district 
school or vice versa. The question under the Federal 
Constitution (Amendment 14) is whether there is a 
denial of the equal protection of the laws, but it does 
not occur if equal advantages are granted. United 
States v. Buntin (C. C.), 10 F. 730, cited with approval 
in Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 
172. See Wong Him v. Callahan (C. C.), 119 F. 381.

“ A shortage of funds might exist for either school, 
due to an insufficient levy of taxes. But it works no 
denial of a constitutional right, because all the laws ap­
plicable should be considered, and among them there is 
the remedy to bring a mandamus action to compel an 
additional levy of taxes. Board of Education v. Excise



27

Board, 86 Okl. 24, 206 P. 517. Even a suspension of a 
separate school, for economic reasons under some con­
ditions, may be justified. Cumming v. County Board 
of Education, 175 U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; 
Gong Lum v. Bice, supra.

“ The plaintiffs did not pursue the remedy open to 
them, but chose to contest the statute and the enforce­
ment of it and claim an infringement of their constitu­
tional rights. But there was no invalidity of the statute 
or wrong committed by the defendant. They are not 
entitled to maintain this equity suit, because of an ade­
quate and efficient remedy at law. Section 267, Jud. 
Code (28 U. S. C. A., Section 384).”

This case on appeal to the Supreme Court of the United 
States was affirmed in a per curiam opinion. Id. 283 U. S. 
810.

(3) No question of law raised by complainant as to the 
facts found in paragraph 3.

(4) The Oklahoma statute requires that members of the 
district school board shall be of the same race as the children 
who are entitled to attend the schools of the district (not the 
separate school). See Jelsma, Co. Treas. v. Butler, 80 Okla. 
46,194 Pac. 436.

Section 3, Article 13, Constitution of Oklahoma, provides 
that:

“ Separate schools for white and colored children 
with like accommodation shall be provided by the Legis­
lature and impartially maintained. The term ‘ colored 
children,’ as used in this section, shall be construed to 
mean children of African descent. The term ‘white 
children’ shall include all other children.”

Section 7033, Chapter 34, Article 18, O. S. 1931, provides:
“ The public schools of the State of Oklahoma shall 

be organized and maintained upon a complete plan of 
separation between the white and colored races, with 
impartial facilities for both races.”

Under Section 7034, Chapter 34, Article 18, O. S. 1931,the 
term “ public school,”  within the meaning of this article



2 8

(as defined) shall include all schools provided for, or main­
tained, in whole or in part, at public expense.

Section 7035 thereof provides :
“ The county separate school in each school district 

is hereby declared to be that school in said school dis­
trict of the race having the fewest number of children 
in said school district; provided that the county super­
intendent of public instruction of each county shall 
have authority to designate what school or schools in 
each school district shall be the separate school and 
which class of children, either white or colored, shall 
have the privilege of attending such separate school 
or schools in said school district. Members of the dis­
trict school board shall be of the same race as the 
children who are entitled to attend the school of the 
district, not the separate school.”

Under Section 6950, Chapter 34, Article 12, 0. S. 1931, 
form of report for taking the enumeration of school children 
upon which state and county apportionments of public school 
funds are made is prescribed, and it is held by the Supreme 
Court of said State that funds received by independent 
school district based upon minority scholastic enumeration 
are to be used only for benefit of minority school. Board 
of Ed. v. Board of Comrs., 140 Okla. 229; Board of Comrs. 
v. School Dist. 25, 141 Okla. 65. It has also been held by 
said court that separate schools entitled to equal rights 
under scholastic enumerations required to be made by law. 
Board of Ed. v. Board of Comrs., 127 Okla. 132, 260 Pac. 22. 
As to enumeration provided for by law, see Sections 6951, 
6952, 6953, 6954, 6955, 6956, 6957, 6958, 6959, 6960, 6961, 
Chapter 34, Article 12, O. S. 1931.

In Section 5, Article 1, Constitution of Oklahoma, it is 
provided:

“ Provisions shall be made for the establishment and 
maintenance of a system of public schools, which shall 
be open to all the children of the State and free from 
sectarian control; and said schools shall always be con­
ducted in English: Provided, That nothing herein shall 
preclude the teaching of other languages in said public



29

schools: And Provided Further, That this shall not he 
construed to prevent the establishment and maintenance 
of separate schools for white and colored children.”

Section 7104, Chapter 34, Article 21, 0. S. 1931, provides 
that:

“ In extending aid to the separate schools of any 
county, all of said schools in a county shall be consid­
ered together as one district, and if the county shall 
have levied two mills for common schools, the separate 
schools in said county may receive aid in toto in such 
amounts as is consistent with the provisions of this Act, 
as the State Board of Education may approve.”

H. B. No. 320, Section 1, Oklahoma Statutes, Ann., 1937, 
effective 90 days after May 11, 1937, pp. 554, Tit. 70, Section 
458, Chapter 15, Sections 1 and 2 provide as follows:

“ In all cases where County Separate Schools for 
white and colored children are maintained, the County 
Excise Board shall annually levy a tax on all taxable 
property in their respective counties, sufficient to main­
tain such separate schools as are hereinafter provided. 
Upon estimate made by the County Commissioners, said 
taxes shall be estimated, published, levied, and collected 
in the same manner as other taxes for county purposes; 
provided, however, that in all Independent Districts 
where separate schools for white and colored children 
are maintained, it shall be the duty of the Board of Edu­
cation therein, at the time provided for preparing its 
annual budget, to prepare a separate budget showing 
the amount of money that will be required to be raised 
by taxation, for the support and maintenance of such 
separate schools, including a sum sufficient to pay a rea­
sonable pro rata share of the cost of supervising, super­
intending and administering the schools and school sys­
tem of said Independent District including said sepa­
rate schools, and the amount necessary to purchase sites 
and to erect school buildings for such separate schools 
for the coming fiscal year; provided, that the share of 
the cost of superintending, supervising and administer­



30

ing the schools and school system of said Independent 
District to be charged against the separate schools 
thereof shall be fixed at an amount not exceedingly the 
percentage of the total cost of said superintendence, 
supervision and administration equivalent to the per­
centage thereof, which the average daily attendance at 
the separate schools in said Independent District for 
the preceding school year bear to the total average 
daily attendance at all schools, majority and separate, 
in said Independent District for the preceding school 
year.

“ It shall be the duty of the County Excise Boards in 
such counties to levy a tax on all taxable property in 
their respective counties sufficient to pay the cost of 
superintending, supervising, administering, supporting 
and maintaining such separate schools and purchasing 
sites and erecting school buildings for such separate 
schools as shown by such budget so prepared by the 
Board of Education. Said tax shall be published, levied 
and collected in the same manner as other taxes for 
county purposes, and when collected shall be paid over 
to the respective Treasurers of the Boards of Educa­
tion in such districts to be expended upon the order of 
such Board of Education for the purpose for which the 
same was levied and collected.

“ No white child shall attend a colored school, nor a 
colored child attend a white school.”

Section 341, Tit. 68, Section 292, S. B. No. 384, Section 1, 
approved May 22, 1937 (Oklahoma Statutes, Ann., July, 
1937) page 484, provides that:

‘ ‘ Pending the expiration of the time within which pro­
tests may be filed with the State Auditor, no warrant 
shall be issued or debt contracted by any municipality 
for any purpose except as provided hereinafter. * * 
and in such amounts as may be necessary to provide 
accommodations, facilities and school term in the sepa­
rate schools, if any, in each district in the county equal 
to the accommodations, facilities and school term pro­
vided for the other regular public schools in the same



31

district, for county high school, if any, in so far as the 
salaries of teachers and other necessary maintenance 
is concerned, and for aid to the common schools of the 
county. * * *”

H. B. No. 6, Laws, 1937, pages 555, 556, 557, 558, 559, Tit. 
70, Section 648, provides for state aid for the common 
schools, and on the hearing in this case, it was stated that 
prior to the passage of said act, difficulties existed as to a 
full school year of nine months, but that after the passage 
of this act the separate school of district No. 20 did not ex­
perience such difficulty. It was also disclosed that prior to 
the same time, a great percentage of the white schools ex­
perienced the same difficulty.

(5) The conclusion is that the provisions of the Consti­
tution of Oklahoma and also the statutes of said state do 
not violate Section 1 of the Fourteenth Amendment to the 
Federal Constitution, or any other federal guaranteed con­
stitutional right. School District No. 7, Muskogee Co. v. 
Hunnicut (10th Cir.), supra-, Gong Lum v. Rice, 275 U. S. 
78, 72 L. Ed. 172; Cumming v. County Board of Ed., 175 
U. S. 527, 44 L. Ed. 262; Song Him v. Callahan, 119 Fed. 
381; IT. S. v. Buntin, supra-, Jelsma, Co. Treas. v. Butler, 
supra; State ex rel. Gumm v. Albritton, 98 Okla. 158, 224 
Pac. 511; State ex rel. Cheeks v. Wirt, 203 Ind. 121,177 N. E. 
441: Reynolds v. Board of Ed., 66 Kan. 672, 72 Pac. 274; 
Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 81 
L. Ed. 1245; Gulf Refining Co. v. Phillips (5th Cir)., 11 Fed. 
(2d) 967; Thomas v. Gay, 169 IT. S. 264, 142 L. Ed. 740; 
Lawrence v. State Tax Commissioner, 266 IT. S. 276,76 L. Ed. 
1102; Stehhins v. Riley, 268 IT. S. 137, 69 L. Ed. 884; Travel­
lers Ins. Co. v. State of Conn., 185 U. S. 364, 46 L. Ed. 949; 
Colgate v. Harvey, 296 H. S. 404, 80 L. Ed. 299; Plessy v. 
Ferguson, 163 U. S. 537, 41 L. Ed. 256,16 Sup. Ct. Rep. 1138; 
Greathouse v. Board of School Comrs., — Ind. —, 151 N. E. 
411; Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969; 
Newton v. Board of Comrs., — Colo. —, 282 Pac. 1068; and 
Judice v. Village of Scott, — 121 So. 593.

It is concluded that said state statutes and the provisions 
of the constitution for the separation and maintenance of



32

the separate schools on their face do not violate the federal 
constitution, and that the evidence does not prove a dis­
crimination in the administering of the schools in district 
No. 20 so as to deny the negroes equal protection o f the law 
required by Section 1 of the Fourteenth Amendment to the 
Constitution of the United States.

It does not appear that said Board of Education of said 
City of Muskogee, District No. 20, is without constitutional 
or legal authority to issue or sell said bonds, or that the acts 
of said board of education with reference to the proposed 
sale of such bonds are null and void, or that the Attorney 
General and Ex-Officio bond commissioner of said state is 
without legal or constitutional authority to approve or cer­
tify such proposed bonds, or that he should be enjoined and 
restrained from approving said bonds.

The court concludes that as to any matters in the ad­
ministration of the issuance of the bonds, that plaintiff has 
a plain, adequate, speedy and complete remedy at law in the 
matters complained of in her First Amended and Supple­
mental complaint.

Plaintiff’s or complainant’s application for a temporary 
injunction should be denied.

(Signed) Robert L. W illiams,
United States Circuit Judge.

(Signed) A lfred P. Mtjrrah,
United States District Judge.

(Signed) E ugene Rice,
United States District Judge.

Filed Oct. 12,1938.
Filed in the United States District Court January 4,1939.

( 10012)



'

F £ 3  4  1 S 3 9

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1938

No. 643

WILLIE EVA SIMMONS,
Appellant,vs.

THE BOARD OF EDUCATION OF THE CITY OF MUS­
KOGEE OF THE STATE OF OKLAHOMA ET AL.

APPEAL FROM  T H E  DISTRICT COURT OF TH E  UN ITED STATES FOR 

T H E  EASTERN DISTRICT OF OKLAH OM A.

STATEMENT OPPOSING JURISDICTION AND 
MOTION TO DISMISS OR AFFIRM.

Mac Q. W illiamson, 
E zra Brainerd, J r., 
Douglas Garrett,

Counsel for Appellees.

Charles P. Gotwals,
W m . A. K illey,
James D. Gibson,
C. A. A mbrister,

Of Counsel.





INDEX.

Subject I ndex.

Statement opposing jurisdiction and motion to dis­
miss or affirm.........................................................

Table of Cases Cited.

Barker Printing Co. v. Local No. 7 3 4 , etc., 281 U. S.
462, 74 L. Ed. 967, 50 Sup. Ct. Rep. 356..................

Brownlow v. Schwarts, 261 U. S. 216, 67 L. Ed. 620,
43 Sup. Ct. Rep. 263.................................................

Collins, Ex parte, 277 U. S. 565, 72 L. Ed. 990, 48 Sup.
Ct. Rep. 589 ............................................................

Jones v. Montague, 194 IT. S. 147, 48 L. Ed. 913, 24
Sup. Ct. Rep. 611....................................................

Oklahoma Gas and Electric Co. v. Oklahoma Packing 
Co,, 292 U. S. 386, 78 L. Ed. 1318, 54 Sup. Ct. Rep.
732 ..........................................................................

Public National Bank of New York, Ex parte, 278
U. S. 102, 73 L. Ed. 202, 49 Sup. Ct. Rep. 43............

School District v. Hunnicutt, 283 U. S. 810, 75 L. Ed. 
1428, 51 Sup. Ct. Rep. 653.......................................

Statute Cited.

Judicial Code, Section 266 (28 U. S. C. 380)

■10013





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1938

No. 643

WILLIE EVA SIMMONS,
vs. Appellant,

THE BOARD OF EDUCATION OF THE CITY OF MUS­
KOGEE OF THE STATE OF OKLAHOMA ET AL.

APPEAL FROM  T H E  DISTRICT COURT OF T H E  U N ITED  STATES FOR 

T H E  EASTERN DISTRICT OF OKLAH OM A.

STATEMENT OF OPPOSITION TO JURISDICTION 
AND MOTION OF APPELLEES TO DISMISS OR 
AFFIRM JUDGMENT.

The appellees (defendants in the trial court), The Board 
of Education of the City of Muskogee, of the State of Okla­
homa; Arthur Catlett, James A. Lathim, W. H. Cunningham 
and C. A. Ambrister, Members of the Board of Education 
of the City of Muskogee, Oklahoma; E. D. Cave, Clerk of the 
Board of Education of the City of Muskogee, Oklahoma; 
S. M. McManus, Mayor of the City of Muskogee, Oklahoma; 
Theo Frazier, County Clerk of Muskogee County, Okla­
homa ; Douglas Garrett, County Attorney of Muskogee 
County, Oklahoma; and Mac Q. Williamson, Attorney Gen­
eral and ex-officio Bond Commissioner of the State of Okla­
homa, respectfully submit the following statement disclos­
ing matters and grounds, making against the jurisdiction



2

of the Supreme Court of the United States, asserted by the 
Appellant.
The Supreme Court of the United States Does Not Have 

Jurisdiction of This Case on Appeal.
The first amended and supplemental complaint of the 

plaintiff in the court below, as disclosed by the allegations 
contained therein and the prayer, alleges that the defendant, 
The Board of Education of the City of Muskogee, Oklahoma, 
is about to issue and sell the bonds of said Board of Educa­
tion to the amount of $275,000.00, in pursuance of an elec­
tion held in the City of Muskogee and the territory thereto 
attached for school purposes, on the 15th day of September, 
1938, and seeks relief as follows:

(1) A temporary restraining order restraining said 
Board of Education and other local officers from proceeding 
with a proposed issuance or sale of such bonds, and also 
restraining the defendant, Mac Q. Williamson, as Bond 
Commissioner of the State of Oklahoma, from approving or 
certifying the same, such being the only relief sought as 
against the said Mac Q. Williamson, as Bond Commissioner 
of the State of Oklahoma, and he being the only State officer 
as a party defendant in this action;

(2) For an interlocutory injunction enjoining the enforce­
ment, operation and execution of certain statutes of the 
State of Oklahoma, and restraining and enjoining said Bond 
Commissioner from approving and certifying such bonds;

(3) For a permanent injunction as against the same par­
ties above mentioned; and

(4) For costs and additional relief.
There is attached hereto and made a part of this state­

ment and motion, the affidavit of Mac Q. Williamson, Attor­
ney General of the State of Oklahoma, showing that on the 
26th day of October, 1938, the bonds in question were 
approved by the said Mac Q. Williamson, Attorney Gen-



3

eral and ex-officio Bond Commissioner of the State of Okla­
homa, and it, therefore, follows that, as to this defendant, 
this action has become moot.

The said Mac Q. Williamson, Attorney General of the 
State of Oklahoma, is the only State official defendant in this 
action and, therefore, jurisdiction ceased when this cause, 
as to him, became moot.

And the appellees now respectfully move this Court to dis­
miss or affirm.

The appellees, in support of their objections to jurisdic­
tion and motion to dismiss or affirm, respectfully submit the 
following citations—

Under the provisions of Sec. 266 of the Judicial Code, 
U .  S. C., Title 28, Sec. 380, the concurrence of two things is 
necessary to confer jurisdiction— (1) the suit must seek to 
have a State statute declared unconstitutional or that in 
effect; (2) it must seek to restrain the action of an officer 
of the State in the enforcement of such Statutes.

Ex Parte J. D. Collins, 277 U. S. 565, 72 L. Ed. 990, 48 
S. Ct, 589;

Ex Parte In Re Public National Bank of New York, 278 
U. S. 102, 73 L. Ed. 202, 49 S. Ct. 43;

School District v. Hunnicutt, 283 U. S. 810, 75 L. Ed. 
1428, 51 S. Ct. 653.

If there be no basis for relief of any sort against State 
officers, jurisdiction is lacking.

Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., 
292 U. S. 386, 78 L. Ed. 1318, 54 S. Ct. 732.

So far as the jurisdiction of this Court is concerned, the 
controversy on appeal has become moot.

The act of the State official, the doing of which was sought 
to be prevented in the lower court, has been accomplished. 
The bonds have been approved by the Attorney General.

J ones v. Montague, 194 U. S. 147, 48 L. Ed. 913, 24 S. Ct. 
611;





3n tlie ihtpremr Court
of tl)e XCnited States

No. 643, October Term, 1938.
................... .......... ........................................... .....

WILLIE EVA SIMMONS, A p p ella n t,
VERSUS

THE BOARD OF EDUCATION OF THE CITY OF MUS­
KOGEE, OF THE STATE OF OKLAHOMA; ARTHUR 
CATLETT, JAMES A. LATHIM, W. H. CUNNINGHAM, 

AND C. A. AMBRISTER, ETC., E T  A L ., A p p ellees .

i'll..

APPEAL FR O M  T H E  U N I T E D  S T A T E S  D IS T R IC T  C O U R T  FO R  T H E  
E A S T E R N  D IS T R IC T  O F  O K L A H O M A .

Brief o f  A pp ellan t O p p osin g  A p p ellees ’ M o­
tion  to  Dism iss o r  A ffirm .

CHARLES A. CHANDLER,
Muskogee, Oklahoma, 

C ounsel fo r  A p p ella n t.





I N D E X .
PAGE

Brief of appellant opposing appellees’ motion to dismiss
or affirm....................................................................  1

Appendix:
Affidavit....................................................................  7
Letter of Citizens National Bank............................. 8

L i s t  op A u t h o r i t i e s .
Chicot County, Arkansas, v. Sherwood (1893), 149 U. S.

529, 37 L, ed. 546...................................................... 6
Leonard v. Earle (1928), 279 U. S. 392, 73 L. ed. 754, 49

Sup. Ct. 372..............................................................  5
Oklahoma Operating Co. v. J. E. Love, et al. (1919), 252

IT. S. 331, 337, 64 L, ed. 596, 599.............................. 5, 6
Southern Pacific Co., etc., v. Interstate Commerce Com­

mission (1910), 219 IJ. S. 433, 55 L. ed. 283, 31 Sup.
Ct. 228...................................................................... 5, 6

Southern Pacific Terminal Co., etc., v. Interstate Com­
merce Commission (1910), 219 U. S. 498, 514, 516,
55 L. ed. 310, 315, 316, 31 Sup. Ct. 299.....................  5

U. S. v. Trans-Missouri Freight Ass’n (1896), 166 U. S.
290, 307, 41 L. ed. 1007, 1016, 17 Sup. Ct. 540........... 5





In the Supreme Court of the United States
No. 643

O C T O B E R  T E R M ,  1938.

WILLIE EVA SIMMONS, A ppellan t, 
vs.

THE BOARD OF EDUCATION OF THE CITY OF MUS­
KOGEE, OF THE STATE OF OKLAHOMA; ARTHUR 
CATLETT, JAMES A. LATHIM, W. H. CUNNINGHAM, 

AND C. A. AMBRISTER, ETC., E T  A L ., A p p ellees .

APPEAL FR O M  T H E  U N I T E D  S T A T E S  D IS T R IC T  C O U R T  FOR T H E  
E A S T E R N  D IS T R IC T  O F O K L A H O M A .

BRIEF OF APPELLANT OPPOSING APPELLEES’ MO­
TION TO DISMISS OR AFFIRM.

May it Please T he Court :

The appellant, Willie Eva Simmons, has filed herein 
the Jurisdictional Statement required by Rule 12 of this 
Court, which statement, on account of the important na­
ture of the case, was more extended than otherwise would 
have appeared necessary. The appellees have filed herein, 
pursuant to said Rule 12, their Motion to Affirm or Dismiss. 
The attention of this Court is first called to the fact that 
said motion of appellees does not contend in any manner 
that the trial court was without jurisdiction, or that the 
cause is without merit, or that there was any defect in said 
Jurisdictional Statement of appellant, or that the appeal 
18 prosecuted for delay. Their sole contention seems to be



2 Simmons v. B oard of E ducation.

that this Court is without jurisdiction of the cause, upon 
appeal, for the reason, as appellees contend, the contro­
versy has become moot by reason of the approval by the 
Attorney General, appellee herein, after judgment below 
and pending appeal to this court, of the bonds involved in 
the trial court.

It appears from said Motion to Dismiss or Affirm, as 
well as from the affidavit thereto attached, that said appel­
lees take a very narrow view of the nature of this contro­
versy, of the relief sought by the appellant herein, as well 
as of the law relating to moot questions.

It is not controverted that the trial court had original 
jurisdiction of the parties to the suit, other than the At­
torney General; nor is it in anywise contended that the con­
troversy is moot as to said other parties. Said motion of 
appellees wholly ignores the fact that appellant seeks here­
in to restrain the Attorney General, not only from approv­
ing and certifying the specific bonds in question, but also 
from enforcing the state laws in question in the future. Ap­
pellant seeks also, in effect, to have the state laws under 
which said appellee Attorney General is acting, declared 
unconstitutional, and she seeks a permanent injunction “ for­
ever restraining and enjoining the defendants [including 
the Attorney General] and each of them, from enforcing in 
any manner, or from attempting to enforce said laws and 
statutes of the State of Oklahoma herein alleged to be un­
constitutional”  (See Prayer to Complaint R., p. .. .).

Further, said motion of appellees fails in any manner 
to disclose facts even tending to prove that the controversy 
has become moot, or that the final judgment of this Court 
in this cause, if possibly in favor of appellant, will be inef­
fectual to accomplish, completely, the results sought by 
said suit. The actual facts in the case disclose that the pur-



Brief of A ppeliant Opposing M otion. 3

ported approval of said bonds by the Attorney General, ap­
pellee herein, was made in violation of a statement he made 
in open court during trial below; and further, that said 
purported approval was not final, but was, as appears from 
his own affidavit attached to said motion, subject to ju­
dicial review; and that, so far as this controversy is con­
cerned, said purported approval of said bonds will be a 
mere nullity, if this suit should finally be decided in favor 
of appellant.

It appears from a counter-affidavit hereto attached, 
and which is incorporated herein by reference, that the 
bonds in question have not been sold or passed into the 
hands of any stranger to this suit; that no other act, visible 
or tangible, has been performed either by parties to this 
suit or strangers, effectual toward the erection of the struc­
tures sought to be enjoined; that the bidder on said bonds 
in question has refused to accept them pending the outcome 
of this controversy; and that the entire matter is held in 
abeyance pending the final determination of this cause.

It cannot, under any circumstances, be contended that 
said controversy has become moot; or that final judgment 
in this Court will be ineffectual to accomplish every pur­
pose sought by appellant originally. If this Court assumes 
jurisdiction and decides that the state laws in question are 
unconstitutional, it can also decide that the approval of 
said bonds by the appellee Attorney General was a nullity. 
This Supreme Court of the United States can, it would seem, 
restrain the Attorney General from enforcing said laws in 
the future, or from approving future bonds thereunder— 
even though it appears from his affidavit that such action 
by this Court would be contrary to his mandate that ‘ ‘ such 
bonds should be incontestable”  unless contested in such 
manner, court, or time as he should direct.

Further, the authorities cited in said motion of ap-



4 Simmons v. B oard of E ducation.

pellees are applicable only to a controversy which is truly 
moot, and in which it is “ impossible for this Court, if it 
should decide the case in favor of plaintiff, to grant him 
any effectual relief whatever # Jones v. Montague
(1904), 194 U. S. 147, 152, 48 L. ed. 913, 915, 24 Sup Ct. 
611, cited by appellees. In the opinion in said case, by Mr. 
Justice Brewer, it was stated:

“  i * * * ^  necessarily follows that when, pending an ap­
peal from the judgment of a lower court, and without 
any fault of the defendant, an event occurs which ren­
ders it impossible for this court, if it should decide 
the case in favor of the plaintiff, to grant him any 
effectual relief whatever, the court will not proceed to 
a formal judgment, but will dismiss the appeal *** . ” ’ 
(Italics ours.)

And how can the approval of said bonds by the appellee 
Attorney General, made in an ex parte hearing without any 
notice to appellant, and contrary to his voluntary statement 
and declaration in open court, be said to have been done 
“ without any fault”  on his part, as provided by the rule 
stated in said Jones-Montague case relied upon by appellees" 

The other cases cited and relied upon by appellees on 
this proposition, to-wit:

Brownlow v. Schwartz, 261 U. S. 216, 67 L. ed. 620, 
43 S. Ct. 263; and

Barker Painting Co. v. Local No. 734, etc., 281 
U. S. 462, 74 L. ed. 967, 50 S. Ct. 356;

are mere illustrations of the application of the rule stated 
by Mr. Justice Brewer in the opinion in Jones v. Montague, 
supra.

On the contrary, and concerning the proposition under 
consideration, the appellant cites and relies upon the fol­
lowing authorities, to-wit:



Bbief of A ppellant Opposing M otion. 5

U. S. v. Trans-Missouri Freight Ass’n (1896), 166 
U. S. 290, 307, 41 L. ed. 1007, 1016, 17 Sup. 
Ct. 540;

Southern Pacific Co., etc., v. Interstate Commerce 
Commission (1910), 219 IT. S. 433, 55 L. ed. 
283, 31 Sup. Ct. 228;

Southern Pacific Terminal Co., etc., v. Interstate- 
Commerce Commission (1910), 219 IT. S. 498, 
514, 516, 55 L, ed. 310, 315, 316, 31 Sup. Ct. 
299;

Leonard v. Earle (1928), 279 U. S. 392, 73 L. ed. 
754, 49 Sup. Ct. 372;

Oklahoma Operating Co. v. J. E. Love, et al. 
(1919), 252 IT. S. 331, 337, 64 L. ed. 596, 599.

The first two syllabi in U. S. v. Trans-Missouri Freight 
Assn., supra, opinion by Mr. Justice Peckham, are respec­
tively, as follows:

“ The voluntary dissolution of an association of 
common carriers after a decree dismissing a suit in 
equity seeking such dissolution and asking that defend­
ants be enjoined from continuing in a like combina­
tion, and from further conspiring, agreeing, combining, 
or acting together to maintain rates of freight, does 
not prevent this court from taking cognizance of an 
appeal and deciding the case on its merits, where the 
.judgment of this court is sought upon the legality of 
their agreement and defendants claim it to be legal 
and necessary, and on dissolving such association en­
tered into and acted upon another similar agreement.

“ 2. Where parties have entered into an illegal 
agreement and are acting under it, and there is no 
adequate remedy at law, and the jurisdiction of the 
court has attached by the filing of a bill to restrain 
such or any like action under a similar agreement, and 
a trial has been had and judgment entered, the appel­
late jurisdiction of this court is not ousted by a simple 
dissolution of the association, effected subsequently to 
the entry of judgment in the suit.”



6 Simmons v. Board of E ducation.

It appears that in the case last cited, the defendants 
attempted to out-wit and evade the jurisdiction of the fed­
eral court, by the ruse of speciously yielding the relief 
sought by the plaintiff, and making it appear that the suit 
was unnecessary: in the instant case, on the contrary, it 
seems that the appellee Attorney General attempts to set 
at naught the jurisdiction of the Supreme Court of the 
United States, and this circumstance, instead of defeating 
such jurisdiction, seems to make imperative its exercise.

The provision, either in the state statute or in the 
certificate of the Attorney General (see affidavit attached 
to motion) to the effect that such bonds were still eon- 
testable in the state courts could not affect the original 
jurisdiction of the federal court, under federal statutes, to 
inquire into the validity of said bonds, of the certificate of 
the Attorney General, or of the state laws under which they 
existed. Chicot County, Arkansas, v. Sherwood (1893), 148 
U. S. 529, 37 L. ed. 546. And no act of the Attorney Gen­
eral, a party to the suit, could divest the jurisdiction of 
the federal courts, already properly vested. Oklahoma Op­
erating Co. v. Love, supra, in which case was involved an 
appeal under Section 266 of the Judicial Code, and in which 
the state statute the federal constitutionality of which was 
attacked was remedied by the state legislature after the 
institution of the federal suit to enjoin its enforcement.

Wherefore, appellant respectfully submits that the con­
troversy herein is not moot; that this Court has jurisdiction 
of this cause upon appeal, as shown by the jurisdictional 
statement filed herein by appellant; and said appellant 
prays the Court to proceed herein according to law.

Respectfully submitted this 2nd day of February, 1939.
Charles A. Chandler,

Counsel for Appellant.



Brief of A ppellant Opposing M otion. 7

APPENDIX.

AFFIDAVIT.
United States of A merica,
Eastern Judicial District of Oklahoma.—ss.

Charles A. Chandler, being first duly sworn, alleges 
and states upon oath:

That he is counsel for appellant Willie Eva Simmons 
in above cause; that he was present at the trial of said 
cause in the Federal District Court at Muskogee, Oklahoma, 
on October 3, 1938, and at said trial the appellee Mac Q. 
Williamson, Attorney General and Ex-Officio Bond Commis­
sioner of the State of Oklahoma, stated in open court that 
it was an unbroken policy of his office not to approve or 
certify bonds while they were in litigation, and that he 
would not approve the bonds in question while they were 
in litigation. And this affiant, as counsel for appellant, be­
lieved said statement to be made in good faith and to be 
true, and he relied thereupon, and took no steps to super­
sede the decree of trial court dismissing plaintiff’s bill in 
this cause.

That affiant was present at the sale of said bonds, on 
October 3, 1938, when bids were received therefor (pur­
suant to court order); and that at said time the Citizens 
National Bank of Muskogee, Oklahoma, bid in said bonds 
upon the express condition that said hank would not ac­
cept said bonds unless or until they were free and clear of 
litigation.

That neither affiant, as counsel, nor said appellant had 
any notice of any hearing for the approval of said bonds 
by the Attorney General, appellee, nor was either of them 
given any opportunity to be heard in any proceedings for 
such approval.

Further, that said Citizens National Bank, bidder on 
said bonds, has refused to accept said bonds until after 
termination of this suit, and subject to the outcome hereof. 
That said bonds have not been delivered to said Bank, nor 
otherwise sold or disposed o f ; that the Public Works Ad­
ministration has not advanced appellees the proposed funds 
m question; and that appellees have not done nor caused



s Simmons v. Board of E ducation.

to be done anything further, tangible, or visible, looking 
toward the erection of the structures for the financing of 
which said bonds were proposed to be issued. That all of 
said things and matters are held in abeyance pending final 
disposition of the appeal herein, and subject to the final 
determination of this cause.

That there is attached hereto and incorporated herein 
a true and correct copy of the letter of said Citizens Na­
tional Bank, communicated to appellee Board of Education, 
whereby said bank refused to accept said bonds. That said 
letter was widely published in the press of Muskogee, Ok­
lahoma.

Charles A. Chandler,
Affiant.

Subscribed and sworn to before me this 2nd day of 
February, 1939.

W . V. M cClure,
Seal U. S. Court Clerk.

By Ellis Quiett,
Deputy Clerk.

THE CITIZENS NATIONAL BANK of Muskogee, Okla.
November 28, 1938.

Board of Education,
Muskogee, Oklahoma.
Gentlemen:

Begarding the board of education building bonds in the 
sum of $275,000.00, which were offered for sale at public 
auction some time ago and in connection with which this 
bank was the successful bidder.

In our contract for the purchase of these bonds, we 
agreed to pay the sum of $275,000.00' plus accrued inter­
est to date of delivery and a premium of $7.50. In our bid 
we stipulated that we would take these bonds if and when 
approved by a reputable bond attorney.

When the transcript covering these bonds was com­
pleted, we referred it to Chapman & Cutler, bond attorneys 
of Chicago, Illinois, who heretofore have passed on the le­
gality of numerous Oklahoma bond issues and who, in our



Brief of A ppellant Opposing M otion. 9

opinion, are qualified to pass on the legality of this issue. 
They take position they cannot approve the issue until the 
litigation, which is now pending, has been ultimately dis­
posed of.

While we are anxious, ready and willing to pay for the 
bonds at this time, yet with this litigation pending and be­
ing unable to get a favorable opinion from our attorneys, 
we cannot see our way clear to pay for the bonds at this 
time, but will pay for them just as soon as the school board 
can furnish us with a non-litigation certificate in connec­
tion with the bonds.

Our officers and directors have always tried to op­
erate our institution in a conservative manner and we do 
not believe that it is right or proper that we should be asked 
to pay for the bonds until a clear title can be obtained, as 
we feel that we would be derelict in our duty to our stock­
holders and depositors if we should take up the bonds be­
fore the question of their legality has been finally deter­
mined.

In order to show our willingness to do the right thing 
and to make it possible for the board to proceed with the 
contemplated improvements, we are willing to relinquish 
our right to the purchase of the bonds, provided the school 
board can find a legitimate purchaser and one who will pay 
for the bonds immediately.

We reserve the right to take the bonds unless they are 
sold pending the litigation. We are merely agreeing, in the 
interest of the public, to allow you to sell the bonds during 
the pending litigation if you can do so.

We bid these bonds in in good faith and still believe 
that they are a good investment and we would like very 
much to have the bonds in our portfolio and regret that it 
is impossible to take them up at this time on account of the 
pending litigation.

Yours very truly,
(Signed) T. F. K ing,

Exec. Yice President.





SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938

No. 643

WILLIE EVA SIMMONS

vs.
Appellant,

THE BOARD OF EDUCATION OF THE CITY OF 
MUSKOGEE OF THE STATE OF OKLAHOMA 
ET AL.

APPEAL FROM  T H E  DISTRICT COURT OF T H E  U N ITED  STATES FOR 

TH E  EASTERN DISTRICT OF O KLAH OM A

STATEMENT AS TO JURISDICTION.

C h a r l e s  A. C h a n d l e r , 

Counsel for Appellant.





INDEX.

Subject I ndex.
Page

Statement as to jurisdiction.....................................  1
Statutory provisions sustaining jurisdiction. ... 1

The District Court of the United States for 
the Eastern District of Oklahoma had
original jurisdiction of said cause............  1

The Supreme Court of the United States has 
jurisdiction of said cause upon appeal. . . .  3

The statutes of the State of Oklahoma contended 
by said appellant to be violative of the Consti­
tution of the United States..............................  4

Date of order and decree sought to be reviewed, 
and date upon which application for appeal 
was presented to trial court and upon which
appeal was allowed to this Court.....................  12

Nature of case and rulings of trial court............  13
Cases sustaining jurisdiction............................  15
Cases in support of the substantial nature of the

Federal questions ........................................... 15
The doctrine of Cumming v. Board of Education

is not applicable to this case............................  16
Opinion of trial court......................................... 16

Exhibit “ A ” —Findings of fact and conclusions of 
law of the District Court of the United States for 
the Eastern District of Oklahoma..........................  19

Table oe Cases Cited.

Buchanan v. Warley, 245 U. S. 60, 62 L. Ed. 149......... 15
Cumming v. Board of Education, 175 U. S. 528, 44 L.

Ed. 262....................................................................  16
Herkness v. Irion ei al., 278 U. S. 92, 73 L. Ed. 198... 15
Home Tel. and Tel. Co. v. Los Angeles et al., 227 U. S.

278, 57 L. Ed. 510...................................................  15
McFarland v. Goins, 96 Miss. 67, 50 So. 493..............  15
Norfolk and Western By. v. Board of Public Works, 

etc., 3 Fed. Supp. 791..............................................  15
—10012



11 INDEX
Page

Pierce et al v. Society of the Sisters, etc., 268 U. S.
510, 69 L. Ed. 1070................................................... 15

Reppel v. Board of Liquidation, 11 Fed. Supp. 799. . . 15
State of Missouri ex rel. Gaines v. Canada, etc., No.

57, October Term, 1938, decided December 12,1938. 15
Sterling v. Constantin, 287 U. S. 378...........................  15
Truax v. Raich, 239 U. S. 33, 60 L. Ed. 131................  15
Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 220.......  15

Statutes Cited.

Act of February 13, 1925, Section 8(a) (28 U. S. C.
350, 43 Stat. L. 936).................................................  13

Constitution of the State of Oklahoma, Article 13, 
Section 3 (Vol. II, O. S. 1931, p. 1495, Sec. 13676). . 8

Constitution of the United States, 14th Amendment,
Section 1 .................................................................  3 ; 4

Judicial Code, Section 24, amended (28 U. S. C. 41(1)
and (4 ) ) .......................................... 2

Section 52 (28 U. S. C. 113)..............  2
Section 238, amended (28 IT. S. C. 345

(3)) ...............................................  4
Section 266, amended (28 U. S. C.

380) ...............................................  3,4
Oklahoma Statutes of 1931, Chapter 27, Article 5:

Sec. 5412........................................  7
Sec. 5413 .............................................................. 7
Sec. 5414.............................................................. 8

Oklahoma Statutes of 1931, Chapter 34, Article 9:
Sec. 6853 ...............................................  4
Sec. 6861 ............................................................ 5
Sec. 6867 .............................................................. 5
Sec. 6876 .............................................................  5
Sec. 6880 .............................................................. 6
Sec. 6881 .............................................................. 6
Sec. 6884 ...............................................  7
Sec. 6892 .......................................................................7

Oklahoma Statutes of 1931, Chapter 34, Article 18:
Sec. 7033 ................................... 8
Sec. 7034 .............................................................  9



INDEX 111
Page

Sec. 7035 ............................................................. 9
Sec. 7036 ............................................................. 9
Sec. 7037 .............................................................  10
Sec. 7038 ............................................................. 10
Sec. 7039 ............................................................. 10
Sec. 7040, as amended by Sec. 1, H. B. 320, Okla­

homa Statutes, 1937 ....................................... 10
Sec. 7045 ............................................................. 11
Sec. 7046 ............................................................  11
Sec. 7049 ............................................................. 12

Revised Statutes, Section 1977 (8 TJ. S. C. 41)..........  2
Section 1979 (8 U. S. C. 43)........... 2



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SUPREME COURT OF THE UNITED STATES
O C T O B ER  T ER M , 1938

No. 643

WILLIE EVA SIMMONS
VSm Appellant,

THE BOARD OF EDUCATION OF THE CITY OF 
MUSKOGEE OF THE STATE OF OKLAHOMA 
ET AL.

APPEAL FROM T H E  DISTRICT COURT OP TH E UNITED STATES FOR 

T H E  EASTERN DISTRICT OF OKLAHOM A

S T A T E M E N T  A S  T O  JU R IS D IC T IO N .

May it please the H onorable Court :

The appellant in the above entitled cause, Willie Eva Sim­
mons, in support of the jurisdiction of this Honorable Court 
to review the above entitled cause on appeal, respectfully 
represents:

A.
Statutory Provisions Sustaining Jurisdiction.

(a) The District Court of the United States for the East­
ern District of Oklahoma had original jurisdiction of said 
cause.



2

By her first amended and supplemental complaint (R. 1- 
25) filed in said District Court, said appellant prayed for an 
interlocutory injunction and also for a permanent injunc­
tion, under Sec. 266, Judicial Code, Amended, to restrain 
the appellee Mac Q. Williamson, Attorney General and ex- 
Officio Bond Commissioner of the State of Oklahoma; the 
Board of Education of the City of Muskogee, Oklahoma, and 
other local officials from proceeding to issue, sell, certify and 
approve proposed bonds of said Board of Education in the 
sum of $275,000.00, and to restrain said parties from doing 
other acts pursuant to and in the enforcement of the herein­
after mentioned statutes of the State of Oklahoma, it being 
alleged in said complaint and contended by appellant that 
said State Statutes and said acts of the defendants there­
under violate Section 1 of the 14th Amendment to the Fed­
eral Constitution, and violated R. S., Secs. 1977 and 1979 
(TJ. S. C., Title 8, Secs. 41 and 43), providing for equal 
rights of citizens of the United States.

Said appellant, as plaintiff, sued on behalf of herself as 
well as on behalf of .many other Negro citizens similarly 
situated. All proper jurisdictional allegations were made 
in said complaint. Plaintiff and all other parties, except 
Mac Q. Williamson, were alleged to be residents of the East­
ern District, and said Mac Q. Williamson, was alleged to be 
a resident of the Western District, all of the State of Okla­
homa (R. 2). It was properly alleged that the amount in con­
troversy exclusive of interest and cost, exceeded the sum and 
value of $3,000.00.

Said District Court for the Eastern District of Oklahoma 
had original jurisdiction. Judicial Code, Sec. 24, Amended, 
U. S. C., Title 28, Sec. 41, paragraphs (1) and (14).

Venue of said cause properly lay in said District Court. 
Judicial Code, Sec. 52; U. S. C., Title 28, Sec. 113.



3

(b) The Supreme Court of the United States has jurisdic­
tion of said cause upon appeal.

Said suit was instituted in said Federal District Court, 
under Sec. 266 of the Judicial Code, Amended, U. S. C., 
Title 28, Sec. 380, amended, for interlocutory injunction and 
also for a permanent injunction to restrain Mac Q. William­
son, as Attorney General and ex-Officio Bond Commissioner 
of the State of Oklahoma, and also to restrain other local 
officers from enforcing and executing the hereinafter men­
tioned statutes of the State of Oklahoma, it being contended 
by appellant that said statutes were unconstitutional and 
violative of Section 1 of Article 14 of Amendment to the Con­
stitution of the United States, and violative of ft. S., Secs. 
1977 and 1979, providing for equal rights of persons within 
the jurisdiction of the United States.

It further appeared that due and proper notice of hearing 
in the trial court was properly made and given to said At­
torney General of said State of Oklahoma, to the Governor 
of said State of Oklahoma, as well as to the defendants in 
said cause; and that said cause was heard before a statu­
tory, three-judge court, under J. C., Sec. 266, amended.

This appeal is prosecuted to this Supreme Court of the 
United States from the order of said Federal District Court, 
upon hearing, denying to said appellant an interlocutory in­
junction as prayed for, and also from the final decree in said 
cause, denying to said appellant a permanent injunction as 
prayed for (R. 62, 64).

The appeal herein has been allowed by said Federal 
District Court, and duly perfected to this Court, in all 
respects in conformity with law and agreeably to the rules 
of this Honorable Court (R. 68-106).

Said appellant respectfully contends that this Honorable 
Supreme Court of the United States has jurisdiction in



4

said appeal by virtue of U. S. C. A., Title 28, Sec. 345 
(Judicial Code, 238, as amended by the Act of Feb. 13, 
1925); paragraph No. 3 of said Section 238; as well as by 
reason of Sec. 266 of the Judicial Code, Amended; U. S. 
C. A., Title 28, Sec. 380, as amended by the Act of Feb. 
13, 1925, providing for a direct appeal to this Court from 
an order of a statutory three-judge district court denying 
interlocutory injunction, as well as from a final decree de­
nying a permanent injunction in such case. This appeal 
is prosecuted from such order and from such final decree 
in such case.

B .

The Statutes of the State of Oklahoma Contended by Said 
Appellant to be Violative of the Constitution of the United 
States.
It appears from the allegations of the complaint (R. 4, 

paragraph 6), as well as from the findings of fact and con­
clusions of law made by the trial court (copy thereof at­
tached hereto; also, R. 40) that in proceeding to issue, sell, 
and certify the bonds herein sought by appellant to be en­
joined, the appellees are proceeding with the enforcement, 
operation, and execution of the statutes of the State of Okla­
homa, duly enacted by the Legislature of said State, desig­
nated as Article 9, of Chapter 34, 0. S. 1931 (Secs. 6853- 
6914; Vol. I, 0. S. 1931, pp. 1998-2015), and pertaining to 
Independent School Districts.

Appellant respectfully shows to the Honorable Court that 
the provisions of said Article 9 of said Chapter 34, partic­
ularly contended by said appellant to be unconstitutional, 
violative of Section 1 of Article 14 of Amendment to the 
Constitution of United States and also violative of U. S. C., 
title 8, Section 41 (R. S., Sec. 1977), are as follows, to wit: 

Sec. 6853 (Vol. I, 0. S. 1931, p. 1999):
‘ ‘ 6853. Independent Districts in Cities and Towns.— 

Each city of the first class, and each incorporated town



5

maintaining a four years high school fully accredited 
with the State University, shall constitute an inde­
pendent district and be governed by the provisions of 
this article.”

Sec. 6861 (Vol. I, 0. S. 1931, p. 2001):

“ 6861. Independent District a Body Corporate— 
Powers.—The public schools of each city or town or­
ganized in pursuance of this article shall be a body 
corporate and shall possess the usual power of corpo­
rations for public purposes, by the name and style of
‘ The Board of Education of the city or town o f ----- ,
of the State of Oklahoma,’ and in that name may sue 
or be sued, and be capable of contracting or being con­
tracted with, of holding and conveying such personal 
and real estate as it may come into possession of, by 
will or otherwise, or as is authorized to be purchased 
by the provisions of this article. ’ ’

Sec. 6867 (Vol. I, 0. S. 1931, p. 2003):
‘ ‘ 6867. Powers of Boards.—The Board of Education 

shall have power to elect their own officers, except the 
treasurer, to fill any vacancy which may occur in that 
body to serve the unexpired term; to make their own 
rules and regulations, subject to the provisions of this 
article; to organize and maintain a system of graded 
schools; to establish a high school whenever, in their 
opinion, the educational interest of the city demands 
the same, and to exercise the sole control over the 
school and school property of the city.”

Sec. 6876 (Vol. I, O. S. 1931, p. 2005):
“ 6876. Property Subject to Taxation—Taxes Turned 

Over to Treasurer.—The taxable property of the whole 
city or incorporated town, including the territory at­
tached for school purposes, shall be subject to taxa­
tion. All taxes collected for the benefit of the school 
shall be placed in the hands of the treasurer, subject 
to the order of the board of education,”



6

“ 6880. Board May Borrow Money and Issue Bonds 
for Improvements.—Whenever it shall become neces­
sary for the Board of Education of any school district, 
in which is included in whole or in part, a city of the 
first class, to raise sufficient funds for the purchase of 
school site or sites, or to erect or purchase and equip 
a suitable school building or buildings, or both, or for 
the purpose of making repairs of such school building 
or buildings or purchasing a school site or sites, for 
such building or buildings, either or both, it shall be 
lawful for such Board of Education of such city to bor­
row money for which they are hereby authorized and 
empowered to issue bonds bearing a rate of interest, 
not exceeding five per cent, per annum, payable semi­
annually, at such place as may be shown on the face 
of such bonds, which bonds shall be payable in not 
more than twenty-five years from date; and the Board 
of Education is hereby authorized and empowered to 
sell such bonds at not less than their par value: Pro­
vided, that before any bonds shall be issued, the mayor 
of the city composing in whole or in part such school 
district, shall cause an election to be held in such dis­
trict as herein provided: Provided, further, that bonds 
may be voted in one issue at the same election, for any 
or all of the purposes hereinbefore enumerated.”

Sec. 6881 (Vol. I, O. S. 1931, p. 2007):
“ 6881. Bond Election—Procedure.—It shall he the 

duty of the mayor of each city governed by this article, 
upon the request of the board of education, forthwith 
to call an election, to be conducted in all respects as are 
special elections for city officers in the same city, ex­
cept that the returns shall be made to the board of edu­
cation for the purpose of taking the sense of such 
district upon the question of issuing such bonds, nam­
ing in the proclamation of such election the amount of 
bonds to be voted on and the purpose for which they 
are to be issued; and he shall cause to be published 
in a newspaper of general circulation published in the

Sec. 6880 (Yol. I, 0. S. 1931, p. 2006):



7

said district the time and place of such election, such 
notice to be given at least ten days before such elec­
tion. ’ ’

Sec. 6892 (Vol. I, 0. S. 1931, p. 2009):
“ 6892. School Property Pledged to Pay Bonds.— 

The school fund and property of such city and terri­
tory attached for school purposes is hereby pledged to 
the payment of the interest and principal of the bonds 
mentioned in this article, as the same may become due. ’ ’

It seems that a clear understanding of the afore-quoted 
statutes of the State of Oklahoma, contended by appel­
lant to be unconstitutional, necessitates a consideration of 
the other cognate constitutional and statutory laws of said 
State. Such other and related provisions of the Constitu­
tion and Statutes of the State of Oklahoma are as follows:

Sec. 6884 (Vol. I, 0. S. 1931, p. 2007):
“ 6884. Bonds—Signing and Certifying—Denomina­

tions.—The bonds, the issuance of which is provided in 
the preceding sections, shall be signed by the presi­
dent, attested by the clerk and countersigned by the 
treasurer of the board of education, and shall have en­
dorsed thereon a certificate signed by the county clerk 
or other officer authorized by law to sign such certifi­
cate and the county attorney of the county wherein 
such district is located, stating that said bonds, or evi­
dence of debt is issued pursuant to law and that said 
issue is within the debt limit; provided, that each of 
said bonds shall be for a sum of not less than one hun­
dred dollars.”

Article 5, Chapter 27 (Vol. I, O. S. 1931, pp. 1576-1577):
“ 5412. Attorney General ex-Officio Commissioner.— 

The Attorney General is hereby made ex officio bond 
commissioner of the State of Oklahoma.

“ 5413. Duties of Commissioner—Bonds Incontest­
able 30 Days After Approval.—It shall be the duty of



8

such bond Commissioner to prepare uniform forms 
and prescribe a method of procedure under the laws 
of the State in all cases where it is desired to issue 
public securities or bonds, in any county, township, 
municipality or political or other subdivisions thereof 
of the State of Oklahoma; and it shall be the further 
duty of said bond commissioner to examine into and 
pass upon any security so issued, and such security, 
when declared by the certificate of said bond commis­
sioner to be issued in accordance with the forms of 
procedure so provided shall be incontestable in any 
court in the State of Oklahoma unless suit thereon 
shall be brought in a court having jurisdiction of the 
same within thirty days from the date of the approval 
of said securities by the bond commissioner.

“ 5414. Bond Invalid Without Certificate.—No bond 
hereafter issued by any political or municipal subdivi­
sion of this State shall be valid without the certificate 
of said bond commissioner.”

Sec. 3, Article 13, of the Oklahoma Constitution (Vol. II, 
0. S. 1931, p. 1495, Sec. 13676):

“ 13676. Separate Schools.—
Sec. 3. Separate schools for white and colored chil­

dren with like accommodation shall be provided by the 
Legislature and impartially maintained. The term 
‘ colored children,’ as used in this section, shall be con­
strued to mean children of African descent. The term 
‘white children’ shall include all other children.”

And said appellant further represents and shows to the 
court that Article 18 of aforementioned Chapter 34, 0. S. 
1931, concerning “ Separate Schools” , provides as follows:

Section 7033 (Vol. I, 0. S. 1931, p. 2048):
“ 7033. Separation of White and Colored Races.— 

The public schools of the State of Oklahoma shall be 
organized and maintained upon a complete plan of sep­
aration between the white and colored races, with im­
partial facilities for both races.”



9

“ 7034. Definition of Terms.—The term ‘ colored’, as 
used in the preceding section shall be construed to 
mean all persons of African descent who possess any 
quantum of negro blood, and the term ‘white’ shall 
include all other persons. The term ‘public school’, 
within the meaning of this article, shall include all 
schools provided for, or maintained, in whole or in 
part, at public expense.”

Section 7035 (Yol. I, O. S. 1931, p. 2048):
“ 7035. Separate School Defined.—The county sep­

arate school in each school district is hereby declared 
to be that school in said school district of the race 
having the fewest number of children in said school 
district; provided that the county superintendent of 
public instruction of each county shall have authority 
to designate what school or schools in each school dis­
trict shall be the separate school and which class of 
children, either white or colored, shall have the privi­
lege of attending such separate school or schools in 
said school district. Members of the district school 
board shall be of the same race as the children who 
are entitled to attend the school of the district, not the 
separate school.”

Section 7036 (Vol. I, O. S. 1931, p. 2049):
“ 7036. Allowing child of One Race to Attend School 

of Another—Penalty.—Any teacher in this state who 
shall wilfully and knowingly allow any child of the 
colored race to attend the school maintained for the 
white race, or allow any white child to attend the 
school maintained for the colored race, shall be deemed 
guilty of a misdemeanor, and upon conviction thereof 
shall be fined in any sum not less than ten dollars nor 
more than fifty dollars, and his certificate shall be 
cancelled and he shall not have another issued to him 
for a term of one year.”

2 q

Section 7034 (Yol. I, 0. S. 1931, p. 2048):



10

“ 7037. Mixed Schools—Punishment for Conducting. 
—It shall be unlawful for any person, corporation or 
association of persons, to maintain or operate any col­
lege, school or institution of this state where persons 
of both white and colored races are received as pupils 
for instruction, and any person or corporation who 
shall operate or maintain any such college, school or 
institution in violation hereof, shall be deemed guilty 
of a misdemeanor, and upon conviction thereof shall 
be fined not less than one hundred dollars nor more 
than five hundred dollars, and each day such school, 
college or institution shall be open and maintained 
shall be deemed a separate offense. ’ ’

Similarly, Section 7038 makes it a misdemeanor to teach 
in such mixed school; and Section 7039 makes it a mis­
demeanor to attend such mixed school. In each case, each 
day of such violation is denominated a separate offense.

Sec. 1, H. B. 320, Oklahoma Statutes, 1937, Amending 
Sec. 7040, O. S. 1931 (Okla. Statutes, 1937, p. —), provides:

“ 320. Separate Schools—Tax Levy—Regulations.— 
In all cases where County Separate Schools for white 
and colored children are maintained, the County Ex­
cise Board shall annually levy a tax on all taxable 
property in their respective counties, sufficient to main­
tain such separate schools as are hereinafter provided. 
Upon estimate made by the County Commissioners, 
said taxes shall be estimated, published, levied, and 
collected in the same manner as other taxes for county 
purposes; provided, however, that in all Independent 
Districts where separate schools for white and colored 
children are maintained, it shall be the duty of the 
Board of Education therein, at the time provided for 
preparing its annual budget, to prepare a separate 
budget showing the amount of money that will be re­
quired to be raised by taxation, for the support and 
maintenance of such separate schools, including a sum

Section 7037 (Vol. I, 0. S. 1931, p. 2049):



11

sufficient to pay a reasonable pro rate share of the cost 
of superintending, supervising and administering the 
schools and school system of said Independent District 
including said separate schools, and the amount neces­
sary to purchase sites and to erect school buildings for 
such separate schools for the coming fiscal year; * *

Sec. 7045 (Yol. I, 0. S. 1931, p. 2051) provides:
“ 7045. Teachers—Employment and Qualifications. 

—It shall hereafter be the duty of all County Super­
intendents of Public Instruction to contract with and 
employ all teachers for the county separate schools, 
except independent district, now maintained or here­
after to be established in their respective counties; 
Provided, that the Board of Education in all independ­
ent districts, shall contract with, and employ all teach­
ers in the separate schools of such independent dis- 
tiicts. Teachers so employed shall possess all the 
qualifications which are now required by law, and the 
County Superintendent of Public Instruction shall have 
the power to prescribe rules and regulations for the 
government of all county separate schools in his 
county, except independent districts.”

Sec. 7046 (Vol. I, O. S. 1931, p. 2051):
“ 7046. Same.—It shall hereafter be the duty of the 

County Superintendent of Public Instruction to con­
tract with and employ all teachers for the county sep­
arate schools now maintained, or hereafter to be estab­
lished in their respective counties; provided, that the 
Board of Education in all independent districts shall 
contract with and employ all the teachers for the 
schools of such district which have been designated by 
the county superintendents as the county separate 
school within such districts. Teachers, before being so 
employed, shall possess all the qualifications which are 
now required by law, and the county superintendent of 
public instruction shall have the power to prescribe 
rules and regulations for the government of all county



12

separate schools in his county, except those within the 
independent districts, and in such independent dis­
tricts where the same is composed wholly or in part 
by a city of the first class the Board of Education of 
such city shall have full control, management and dis­
cipline and prescribe the rules and regulations for the 
government of the separate schools in such districts; 
and that the Board of Education of cities of the first 
class shall keep a separate account of all expenditures 
made in maintaining such separate schools and shall 
at the end of each month, certify the same to the Board 
of County Commissioners of the county in which such 
school district is situated, and said Board of County 
Commissioners shall pay the same.”

Sec. 7049, (Vol. I, O. S. 1931, p. 2052) :
” 7049. Payment of Teachers.—Warrants for the 

salary of teachers employed in the separate schools, 
excepting those in independent districts, and all orders 
or warrants for the expense of such schools shall be 
issued upon the Treasurer by the County Clerk and 
countersigned by the County Superintendent; Provided, 
however, that the County Clerk shall not draw on said 
separate school fund for any greater amount for 
teachers employed for any district than is paid the like 
number of teachers for like time by the school district 
for teaching in other schools for said districts.”

C.
Date of Order and Decree Sought to be Reviewed, and Date 

Upon Which Application for Appeal was Presented to 
Trial Court, and Upon Which Appeal was Allowed to 
This Court.
Both the order denying interlocutory injunction and the 

final decree denying permanent injunction were made, 
entered and filed in the trial court on the 12th day of Oc­
tober, 1938 (see order denying interlocutory injunction, R. 
62, and also, judgment (final decree), R. 64).



13

Application for appeal herein (R. 68) to this Honorable 
Court was duly presented to the Honorable Eugene Rice, 
District Judge (and one of the trial judges) on the 4th day 
of January, 1939, within three months after the entry of 
such respective order and final decree, and within the time 
provided by Section 8 (a) of the Act of Congress of Feb­
ruary 13,1925; U. S. Code, Title 28, Sec. 350; 43 Stat. L. 936.

The Appeal herein to this Honorable Court has been per­
fected in all respects in conformity with law, the Equity 
Rules, and the Rules of the Supreme Court.

D.

Nature of Case and Rulings of the Trial Court.
It seems that the nature of the case has been hereinabove 

sufficiently set forth. The trial court denied plaintiff both 
the interlocutory injunction and permanent injunction as 
prayed for (R. 62, 64), and found and held that the statutes 
of the State of Oklahoma in question (Article 9 of Chapter 
34, 0. S. 1931; herein supra; Vol. I, 0. S. 1931, pp. 1998- 
2015) were constitutional and not violative of the 14th 
Amendment. The basis of the rulings of the trial court is 
set forth in its findings of fact and conclusions of law hereto 
attached.

That the Federal constitutional questions involved are 
fundamental, serious, and substantial—and not strained or 
fanciful, appears from the 5th, 6th and 7th assigned errors 
(see assignment of errors, R. 99-107), which are, respec­
tively, as follows:

V.
It appears from the Fifth Finding of Fact that the 

Defendants, under the State laws in question, are pro­
ceeding to expend Five Hundred Thousand Dollars 
($500,000.00) of public funds for improvement of the 
white schools, and that under said State laws it would



14

be illegal for said defendants to expend any part of said 
fund (or of any similar fund) for the separate or Negro 
schools, although the trial court found that the white 
and Negro schools were equally in need of im­
provements ;—such laws and such acts by the defend­
ants deny to Negro citizens and tax payers, includ­
ing plaintiff, equal protection of the laws in violation of 
Section 1 of the 14th Article of Amendment to the Con­
stitution of the United States, and the trial court com­
mitted error in failing and refusing so to find and hold.

VI.
It appearing that under 0. S. 1931, Sec. 7045, the de­

fendant Board of Education of the City of Muskogee 
is given supervision and control of the separate or 
Negro schools in said city; and it appearing from the 
Fifth Finding of Fact (under 0. S. 1931, Sec. 7035) that 
the members of said Board of Education must be of the 
white race; such laws, making it impossible for plain­
tiff, or any other Negro patron or tax payer, to be a 
member of the Board of Education having supervision 
and control of the Negro schools, deny to plaintiff the 
equal protection of the laws and violate Section 1 of the 
14th Article of Amendment to the United States Consti­
tution ; and the trial court erred in refusing so to hold.

VII.
Article 9 of Chapter 34, 0. S. 1931 (Secs. 6880-6884, 

and 6892) purports to give to the defendant Board of 
Education, having supervision of both the white and 
colored schools in the City of Muskogee, ample power 
to issue bonds, secured by all property in the City, to 
provided funds for improving the said white schools, 
but no authority to issue bonds for the improvement of 
said Negro schools; and said laws and the enforcement 
thereof by defendants deny to plaintiff the equal protec­
tion of the laws, they violate Section 1 of the 14th Ar­
ticle of Amendment to the Federal Constitution, and the 
trial court committed error in holding to the contrary.



15

(a) Cases Cited by Appellant in Support of the Jurisdiction
of This Court.

The action being to enjoin the Attorney General, ex-Officio 
Bond Commissioner of the State of Oklahoma, and other 
defendants from enforcing and executing the laws of said 
State alleged to be unconstitutional (under U. S. Constitu­
tion), the District Court had original jurisdiction, and this 
Court has appellate jurisdiction (Judicial Code, Sec. 266, 
Amended; U. S. C., Title 28, Sec. 380, Amended):

Home Tel. and Tel. Co. v. Los Angeles et al. (1913), 227 
U. S. 278, 57 L. Ed. 510;

Truax et al. v. Raich (1915), 239 U. S. 33, 60 L. Ed. 131; 
Pierce et al. v. Society of the Sisters, etc. (1924), 268 

IT. S. 510, 69 L. Ed. 1070;
Herkness v. Irion et al. (1928), 278 U. S. 92, 73 L. Ed. 

198;
Sterling, Gov. of Texas, et al., v. Constantin (1932), 287 

U. S. 378, — L. Ed.— ;
Norfolk and Western Ry. v. Board of Public Works, etc.

(1933, D. C. W. Va,), 3 Fed. Sup. 791;
Reppel v. Board of Liquidation (D. C., E. D., La. 1935), 

11 Fed. Sup. 799.

(b) Cases Cited by Appellant in Support of the Substantial­
ity of the Federal Constitutional Questions Involved.

McFarland v. Goins (1909), 96 Miss. 67, 50 So. 493;
Yick Wo v. Hopkins (1885), 118 IT. S. 356, 30 L. Ed. 220; 
Buchanan v. Warley (1917), 345 IT. S. 60, 62 L. Ed. 149; 
State of Missouri ex rel. Lloyd Gaines v. Canada, etc., 

et al. (No. 57, October Term, 1938, decided Dec. 12, 
1938), not officially reported at date hereof.



1 6

(c) The Doctrine of Gumming v. Board of Education is Not 
Applicable to This Case.

This case, wherein the State statutes in question as well 
as their administration patently and uniformly discriminate 
against the minority group, is not controlled by the doctrine 
of Gumming v. Board of Education (1899), 175 U. S. 528, 44 
L. Ed. 262, in which latter case, in the administration of a 
law which was fair and equal on its face, occurred minor and 
insubstantial inequality which was necessitated by peculiar 
circumstances.

The case of McFarland v. Goins, supra, is squarely in 
point on the present constitutional question raised under the 
14th Amendment; and the opinion in said case clearly dis­
tinguishes the Cumming-Board of Education case from one 
like the instant case.

E.

Opinion of Trial Court,
The trial court did not render a formal opinion, but 

the findings of fact and conclusions of law (pp. 11-32, 
infra) sufficiently disclosed the bases of the rulings of said 
trial court. There were no earlier opinions in this case, nor 
were there any companion cases.

As hereinabove stated, the trial court rendered its order 
denying interlocutory injunction, and also its final decree 
denying permanent injunction (R. 62, 64), and this appeal 
is from both said order and final decree.

It is by this appellant contended that the trial court erred 
and improvidently and abusively exercised the judicial dis­
cretion, in denying both interlocutory injunction and per­
manent injunction, prayed for by appellant. The bases of 
said contentions of appellant are as follows, to-wit:

1. This appellant contended in her complaint (R. 4) 
that said Article 9, Chapter 34, 0. S. 1931, violated the



17

14th Amendment to the Federal Constitution, because 
in the enforcement of said state law the defendants are 
proceeding to expend Five Hundred Thousand Dollars 
($500,000.00) of public funds for the exclusive benefit 
of the white or Independent Schools in the City of 
Muskogee; that under said state laws it would be illegal 
for said defendants to expend any part of said fund (or 
of any similar fund) upon any of the Negro schools in 
said city; further, that appellant, as a tax payer in said 
city, must under said laws pay taxes to discharge the 
bonds used to raise said funds; and that it would be a 
criminal act for any child of appellant, or of any other 
Negro parent, to attempt to attend any schools so im­
proved by said funds. The trial court held, in effect, 
that plaintiff had an adequate remedy by application 
for writ of mandamus, to procure sufficient funds to 
“ maintain”  said Separate or Negro schools “ a full 
school term”  (See: Fifth Finding of Fact.) Such rul­
ing by the trial court was erroneous, and not dispositive 
of the constitutional question before it, for it was con­
tended by appellant, and the effect of said Amendment, 
that the 14th Amendment guaranteed her the equal pro­
tection of the laws, and not that it guaranteed any group 
a school of any particular quality of length of term.

2. The appellant contended that said laws of the state 
of Oklahoma, creating the appellee Board of Education, 
giving it control and supervision of the Separate or 
Negro schools in the City of Muskogee, and limiting the 
membership of said Board to the members of the white 
race, denied to appellant, as well as to other Negroes, 
the equal protection of the laws. The trial court (Find­
ing No. 4) found that in some of the schools districts in 
the State of Oklahoma, under said state laws, the ma­
jority schools are established and operated for and by 
the Negroes. Said finding and holding by_ the trial 
court was merely another illustration of the discrimina­
tory and unconstitutional operation of said state laws 
against qther minority groups who are denied equal 
protection of the laws; and said finding was not dis­
positive of the constitutional question before said



18

court; and said trial court abused its discretion in find­
ing and holding that said laws in question did not vio­
late said 14th Amendment by denying to appellant and 
other Negroes the equal protection of the laws.

3. By its Fifth Finding of Fact, the trial court found:
“ That up to this time, before this proposition for 

the white schools was made, it appeared from the evi­
dence that white and Negro schools were in equal need 
for improvements”
Then said trial court proceeded to find and to hold that 
said state laws in question, authorizing said appellee 
Board of Education to expend Five Hundred Thousand 
Dollars ($500,000.00) for the improvement of said white 
schools of the City of Muskogee, said public funds to be 
repaid by Negro residents and tax payers, as well as by 
the whites; said Board of Education not being author­
ized to expend any part of said fund (nor of any similar 
fund) for said Negro schools of said city; did not deny 
to said Negro schools or to said Negro residents and tax 
payers of said City, the equal protection of the laws re­
quired by the 14th Amendment. Such holding was so 
clearly erroneous as to amount to an abuse of the judi­
cial discretion.

W herefore it is respectfully submitted by the appellant 
that this Honorable Supreme Court of the United States has 
jurisdiction of this appeal by virtue of Sections- 238 and 266 
of the Judicial Code, as amended by the Act of February 13, 
1925.

Respectfully submitted,
Charles A. Chandler, 

Counsel for Appellant.

Note.— At the date of preparation of this Jurisdictional 
Statement, the Transcript of Record has not been printed; 
and all references therein to the record are to the pages of 
the unprinted record prepared by the clerk of the United 
States District Court for the Eastern District of Oklahoma.



19

E X H I B I T  “ A ” .
Findings by the Court under Rule 52, the Findings Being 

Made Specially and Conclusions of Law Separately.
Findings of Fact.

(1) That plaintiff is a native born citizen and resident 
of the City of Muskogee, in Muskogee County, Eastern 
District of Oklahoma, all other defendants other than Mac 
Q. Williamson, Attorney General of the State of Oklahoma, 
being citizens and residents of Muskogee County, Eastern 
District of said state, the defendant, Mac Q. Williamson, 
Attorney General and Ex-Officio Bond Commissioner of the 
State of Oklahoma, being a citizen and resident of the 
Western District thereof.

(2) Notice of this hearing before a three-judge court has 
been given to the Governor of said state and to the Attorney 
General thereof as provided by the requirements of the 
judicial code as amended, the Attorney General appearing- 
in person. The complainant in open court through her 
attorney states that she does not challenge or question the 
provisions of the Constitution of Oklahoma or of the stat­
utes of said state insofar as they, on their face, provide 
for a separation of the races in the schools of said state.

(3) That defendant, Board of Education of the City of 
Muskogee of said state is a subordinate municipal or politi­
cal corporation. The school district under its administra­
tive control embraces the City of Muskogee and adjacent 
territory thereto attached for school purposes, and the de­
fendants, Arthur Catlett, James A. Lathim, W. H. Cun­
ningham and C. A. Ambrister, and E. D. Cave, except as 
to said Cave, are the duly elected, qualified and acting 
members of said Board of Education, the said Cave being 
the duly appointed, qualified and acting Clerk of said 
board, and other defendants are duly qualified and acting 
officials as designated, to-wit: S. M. McManus, Mayor of 
said city; A..,Camp Bonds and Theo Frazier, respectively 
County Attorney and County Clerk of said county in said 
state; and Mac Q. Williamson, Attorney General and Ex-



20

Officio Bond Commissioner of said state, and the City of 
Muskogee and the adjacent territory thereto attached for 
school purposes has been duly and legally constituted and 
designated as Independent School District No. 20.

(4) That the majority schools in said district No. 20 are 
designated and established as schools for children of those 
other than of African or negro descent, denominated as 
negroes or colored, the Separate Schools in said district 
being constituted, designated and established as schools for 
children of negroes. That in the State of Oklahoma Sepa­
rate Schools for children have been established and oper­
ated for the two races; that in a number of the districts of 
the State of Oklahoma, the majority schools are established 
and operated for negroes and the Separate or minority 
schools are correspondingly established and operated for 
pupils other than negroes. In the white school districts 
the board members are to correspond with the race for 
which the school is established. If it was for the whites, 
so denominated, the members of the board are to so cor­
respond, if the African or negro race the members of the 
board are to so correspond. That is, if the majority school 
was for the whites, the members of the school board should 
be from the whites, but if the majority school was colored, 
the members of the school board should be from the African 
race.

(5) That in the entire state of Oklahoma, the amount of 
money expended per pupil for the school year of 1935-36 
was approximately $54.00 per capita for white pupils and 
$52.00 per capita for negro pupils, and since that year the 
amount spent per capita for negro pupils has increased 
more in proportion by reason of the operation of the state 
statutes relating to primary and secondary aid. -That the 
schools for negroes have been established and are being 
operated in the State of Oklahoma with the same standards 
required as in the case of white schools, and that such negro 
schools so established have increased during the past four 
years more than 24% and high schools established for the 
use of white children have increased only one-fourth of 
1%; that all of said high schools, both for white and 
colored children are duly accredited in the state of Okla­



21

homa under the same standards; and that in many cities 
of the State of Oklahoma, other than the City of Muskogee, 
greater amounts are expended for the operation of the 
negro schools than the white schools, particularly in the 
cities of Tulsa and Oklahoma City; that in 38 of the 77 
counties in the state of Oklahoma, the amount per capita 
per annum expended for negro schools is greater than that 
expended for the white schools. That in School District 
No. 20, embracing the City of Muskogee and adjacent ter­
ritory attached thereto for school purposes, the pupils at­
tending negro schools are approximately 23% of the total 
number of pupils in the district; that the negro schools 
have 22% in number of teachers, and have expended a 
budget of approximately 19% of the total amount spent 
for education in said district; that there is expended for 
maintenance of negro schools approximately 22% of the 
total amount expended in said district. That the average 
number of pupils per teacher in the schools of said district 
is 30.2 for the white schools and 31.6 for the negro schools; 
that the average annual salary of teachers in the white 
schools in said district is $1172.72 and in the negro schools 
$887.05; that all the expense of supervision and adminis­
tration, care of grounds and supervision of Art and Music 
of the negro schools has heretofore been paid out of the 
budget provided for the white schools. That substantially 
the same curricula is offered in both the white and negro 
schools and that recent additions and improvements have 
been made to the negro school buildings and, as well, addi­
tional ground has been purchased for their use; that both 
white and negro schools receive the same care and attention 
as to repairs and upkeep; that the negro schools are pro­
vided with a suitable athletic field which is lacking in the 
case of white schools; that the negro high school of the 
City of Muskogee is a duly accredited high school in the 
State of Oklahoma.

That School District No. 20 has heretofore called an elec­
tion for the purpose of voting on the following proposition:

“ Shall the School District comprising the City of 
Muskogee, of the State of Oklahoma, and the territory 
thereto attached for school purposes, incur an indebt­



22

edness by issuing its negotiable coupon bonds in the sum 
of two hundred seventy-five thousand ($275,000.00) Dol­
lars to provide funds for the purpose of purchasing a 
site, erecting and equipping a Junior High School, and 
constructing and equipping additions to existing 
schools, all to be owned exclusively by such district; and 
levy and collect an annual tax, in addition to all other 
taxes upon all the taxable property in such district suf­
ficient to pay the interest on such bonds as it falls due, 
and also constitute a sinking fund for the payment of 
the principal thereof, when due, such bonds to bear in­
terest not to exceed the rate of four (4) per centum per 
annum, payable semi-annually, and to become due 
serially within twenty-five (25) years from their date.

“ Provided, however, that the issuance of said bonds 
is expressly conditioned upon the grant to said school 
district of the sum of not less than Two Hundred 
Twenty-five Thousand ($225,000.00) Dollars by the 
Federal Emergency Administration of Public Works, 
said grant to be used as far as may be necessary to aid 
in the payment of the cost of such improvement and 
the balance of such grant to be used for the construction 
of an Athletic Stadium, such Stadium to cost not more 
than Eighty-five Thousand ($85,000.00) Dollars.”

That the election upon said proposed Bond issue was held 
September 15th, 1938, and the same carried and the Board 
of Education advertised for sale of said bonds.

That the evidence does not disclose that any proposition 
is now being made for the improvement of the negro or 
separate school buildings in said district; that all of this 
proposition is for the majority schools or the white schools; 
that up to this time, before this proposition for the white 
schools was made, it appeared from the evidence that the 
white and negro schools were in equal need for improve­
ments. As to whether a county levy has been made for addi­
tional buildings or additions to buildings, that is not clear 
from the evidence.

The proclamation for the call of this election provides :
“ Shall the School District comprising the City of 

Muskogee * * * and the territory thereto attached for



23

school purposes, incur an indebtedness * * * in the 
sum of two hundred seventy-five thousand ($275,000.00) 
Dollars to provide funds for the purpose of purchasing a 
site, erecting and equipping a Junior High School, and 
constructing and equipping additions to existing 
schools. * * * ”

That an athletic stadium does not come within the purpose 
as stated in the proclamation: “ purchasing a site, erecting 
and equipping additions to existing schools * # *

That any reservation as to the constructing of a stadium 
from the grant of the Federal Emergency Administration 
of Public Works has not been presented in this case.

That the negro high school auditorium is used also as a 
gymnasium, a part thereof being set off also and used as a 
library, and the negro schools also have an athletic ground 
available for their use. The two high schools for white 
pupils in said city are each equipped with a gymnasium.

That beginning with the fiscal year of 1937-38 by legisla­
tive act and state appropriation substantial and adequate 
primary and secondary aid for the public schools of the 
state, which included not only the white schools but also the 
negro schools, has afforded relief to the end that the schools 
might be adequately maintained for a full school year, which 
was aimed to include from eight to nine months prior to that 
time, and which now is a nine-months’ school. The available 
school funds prior to that time were not sufficient either in 
the negro schools or the white schools to meet the minimum 
or reasonable requirements for either the white or negro 
schools.

That beginning with the fiscal year 1937-1938, the per 
pupil expenditure in the white high schools was $65.41, and 
in the negro high school was $63.43, and in the white ele­
mentary schools $60.21, and in the negro elementary schools, 
$38.79, and that if these amounts, to-wit, $63.43 for the negro 
high school and $38.79 for the negro _ elementary schools 
were not reasonably adequate to maintain a full school tei m, 
that an adequate remedy at law existed by mandamus to i e- 
quire full levies within the legal limitation to be made for 
tax levies which applied equally to the whites as well as to 
the negro schools, in case the white was the minority oi the



24

negro was the minority school, and in many instances in the 
state the whites are in the minority school, and there is no 
showing in the evidence that under the tax limitations an 
additional levy, if such were necessary, was not available.

That the negro high school and white high schools are 
examined by the same inspectors as to qualifications and 
accrediting, and there is no evidence showing any bad faith 
or inefficiency in such examination as to either race.

That as to the Junior College work furnished by the 
white Junior College in Muskogee, the entrants therein 
pay tuition to cover the two Junior College years, and there 
is no evidence in the record to show it is not a reasonable 
tuition, but it does appear that the education therein is not 
free; that if there is any discrimination in this respect, 
there is a legal remedy lay mandamus for its correction, 
and there is no evidence shown that any such contention 
has been made or such remedy invoked.

That it does not appear that any part of the Two Hun­
dred Seventy-Five Thousand ($275,000.00) Hollar bond 
issue is to be used for building a stadium, but that the stad­
ium is to be constructed out of the Public Works Adminis­
tration grant, which is the sum of Two Hundred Twenty- 
Five Thousand ($225,000.00) Dollars.

That in said school district, the children of the respective 
races, white and negro, attend separate schools, the ma­
jority schools of said district being attended by white chil­
dren. The members of the Board of Education in said dis­
trict are as provided by the Constitution and statutes of 
the same race as of the children attending the majority 
schools, and the negro children attend the schools desig­
nated as minority or separate schools, the same rule apply­
ing when the negroes are the majority school district, in 
that case the board to be filled by negroes and not whites. 
The existing school enrollment for said schools, white and 
negro respectively, for the school year 1937-38, was 6,391 
white, and 1,916 colored.

That the plaintiff is the mother or parent of a son who 
is of African or negro descent attending said separate 
school in said district, and that she is also of African or 
negro descent, and is a tax payer. That there are many 
other negro residents in said city, citizens of the United



25

States, who are parents of negro children attending said 
separate public schools in said district, and taxpayers in 
said city, and that complainant or plaintiff sues on behalf 
of them as well as for her own benefit.

That the Manual Training High School was erected in 
1909, the Douglas School in 1905, and the Dunbar School 
in 1904, and the evidence shows other additions and im­
provements to the school buildings in said separate dis­
trict since 1909, but there should be some improvement 
apparently, from the evidence, as to the sewerage and toil­
ets, adequate remedy by law being available for such re­
lief.

Conclusions of Law.

(1) That this court has jurisdiction only insofar as the 
constitutionality of the separate school law is involved, as 
contravening the Constitution of the United States, there 
being no diversity of citizenship, the jurisdiction of this 
court being invoked not on the ground of diverse citizen­
ship, the complainant raising a federal question by assert­
ing that her right under the Constitution of the United 
States and especially under Section 1 of the Fourteenth 
Amendment have been violated on account of the provi­
sions in the state constitution of Oklahoma, and the stat­
ute thereof as to separate schools for the negro and white 
races. This court is restricted to the determination of 
that question, as to whether the state constitution and stat­
utes as to separate schools, for the white and negro races 
violate complainant’s federal guaranteed constitutional 
rights. As to the question of the proper administration of 
the separate schools as between the whites and the negroes, 
that issue is not determinable in this case on account of 
lack of diversity of citizenship, the complainant being pre- 
termitted for the determination of her rights in the state 
court where she would have an adequate remedy at law. 
Jew Ho. v. Williamson (9th Cir.), 103 Fed. 10.

(2) The notice served on the Governor and the Attorney 
General wherein the Attorney General also appears in per­
son, complies with the provision of the statute requiring 
such notice as preliminary to his hearing.



26

See School District No. 7, Muskogee Co. v. Hunnicut 
(10th Cir.), 51 Fed. (2d) 528; id. 283 U. S. 810; Oklahoma 
Constitution, Article 13, Sections 1, 3, 4, 5, 6, and 7; Article 
10, Section 9 as amended; and Oklahoma Statutes, Section 
7033, 0. S. 1931, Tit. 70, O. S. A. Sec. 451; Section 7034, 
O. S. 1931, Tit. 70 0. S. A. Sec, 452; Section 7035, 0. S. 
1931, Tit. 70 0. S. A. Sec. 453; and Section 7040, 0. S. 1931, 
as amended and superseded by Act of May 11, 1937, House 
Bill No. 320, Tit. 70, Sec. 458, Chapter 15, 0. S. A., July 
1937, pp. 554.

In School District No. 7, Muskogee Co. v. Hunnicut, 
supra, it is said:

“ Another contention of the plaintiffs is that the 
action of the county superintendent should be enjoined 
because a discrimination is said to result from the dis­
proportionate funds allowed for the colored school as 
compared with the white school, as the former could 
not then be maintained with equal facilities or advan­
tages, on account of the needs of a greater number of 
pupils.

“ If we assume that there was the alleged disparity 
in the funds, it did not arise from the interchange of the 
schools, but from an insufficient levy by the county ex­
cise board, which is not a party to this suit. It is our 
opinion that the constitutional requirement of equal 
advantages or like accommodations to the schools does 
not mean that the colored race shall have the district 
school or vice versa. The question under the Federal 
Constitution (Amendment 14) is whether there is a 
denial of the equal protection of the laws, but it does 
not occur if equal advantages are granted. United 
States v. Buntin (C. C.), 10 F. 730, cited with approval 
in Gong Lum v. Rice, 275 U. S. 78, 48 S. Ct. 91, 72 L. Ed. 
172. See Wong Him v. Callahan (C. C.), 119 F. 381.

“ A shortage of funds might exist, for either school, 
due to an insufficient levy of taxes. But it works no 
denial of a constitutional right, because all the laws ap­
plicable should be considered, and among them there is 
the remedy to bring a mandamus action to compel an 
additional levy of taxes. Board of Education v. Excise



27

Board, 86 Okl. 24, 206 P. 517. Even a suspension of a 
separate school, for economic reasons under some con­
ditions, may be justified. Gumming v. County Board 
of Education, 175 U. S. 528, 20 S. Ct. 197, 44 L. Ed. 262; 
Gong Lum v. Rice, supra.

“ The plaintiffs did not pursue the remedy open to 
them, but chose to contest the statute and the enforce­
ment of it and claim an infringement of their constitu­
tional rights. But there was no invalidity of the statute 
or wrong committed by the defendant. They are not 
entitled to maintain this equity suit, because of an ade­
quate and efficient remedv at law. Section 267, Jud. 
Code (28 U. S. C. A., Section 384).”

This case on appeal to the Supreme Court of the United 
States was affirmed in a per curiam opinion. Id. 283 U. S. 
810.

(3) No question of law raised by complainant as to the 
facts found in paragraph 3.

(4) The Oklahoma statute requires that members of the 
district school board shall be of the same race as the children 
who are entitled to attend the schools of the district (not the 
separate school). See Jelsma, Co. Treas. v. Butler, 80 Okla. 
46, 194 Pac. 436.

Section 3, Article 13, Constitution of Oklahoma, provides 
that:

“ Separate schools for white and colored children 
with like accommodation shall be provided by the Legis­
lature and impartially maintained. The term ‘colored 
children,’ as used in this section, shall be construed to 
mean children of African descent. The term ‘white 
children’ shall include all other children.”

Section 7033, Chapter 34, Article 18, O. S. 1931, provides:
“ The public schools of the State of Oklahoma shall 

be organized and maintained upon a complete plan of 
separation between the white and colored races, with 
impartial facilities for both races.”

Under Section 7034, Chapter 34, Article 18, O. S. 1931, the 
term “ public school,”  within the meaning of this article



2 8

(as defined) shall include all schools provided for, or main­
tained, in whole or in part, at public expense.

Section 7035 thereof provides:
“ The county separate school in each school district 

is hereby declared to be that school in said school dis­
trict of the race having the fewest number of children 
in said school district; provided that the county super­
intendent of public instruction of each county shall 
have authority to designate what school or schools in 
each school district shall be the separate school and 
which class of children, either white or colored, shall 
have the privilege of attending such separate school 
or schools in said school district. Members of the dis­
trict school board shall be of the same race as the 
children who are entitled to attend the school of the 
district, not the separate school.”

Under Section 6950, Chapter 34, Article 12, 0. S. 1931, 
form of report for taking the enumeration of school children 
upon which state and county apportionments of public school 
funds are made is prescribed, and it is held by the Supreme 
Court of said State that funds received by independent 
school district based upon minority scholastic enumeration 
are to be used only for benefit of minority school. Board 
of Ed. v. Board of Comrs., 140 Okla. 229; Board of Comrs. 
v. School Dist. 25, 141 Okla. 65. It has also been held by 
said court that separate schools entitled to equal rights 
under scholastic enumerations required to be made by law. 
Board of Ed. v. Board of Comrs., 127 Okla. 132, 260 Pac. 22. 
As to enumeration provided for by law, see Sections 6951, 
6952, 6953, 6954, 6955, 6956, 6957, 6958, 6959, 6960, 6961, 
Chapter 34, Article 12, O. S. 1931.

In Section 5, Article 1, Constitution of Oklahoma, it is 
provided:

“ Provisions shall be made for the establishment and 
maintenance of a system of public schools, which shall 
be open to all the children of the State and free from 
sectarian control; and said schools shall always be con­
ducted in English: Provided, That nothing herein shall 
preclude the teaching of other languages in said public



29

schools: And Provided Further, That this shall not be 
construed to prevent the establishment and maintenance 
of separate schools for white and colored children.”

Section 7104, Chapter 34, Article 21, 0. S. 1931, provides 
that:

“ In extending aid to the separate schools of any 
county, all of said schools in a county shall be consid­
ered together as one district, and if the county shall 
have levied two mills for common schools, the separate 
schools in said county may receive aid in toto in such 
amounts as is consistent with the provisions of this Act, 
as the State Board of Education may approve. ’ ’

H. B. No. 320, Section 1, Oklahoma Statutes, Ann., 1937, 
effective 90 days after May 11, 1937, pp. 554, Tit. 70, Section 
458, Chapter 15, Sections 1 and 2 provide as follows:

“ In all cases where County Separate Schools for 
white and colored children are maintained, the County 
Excise Board shall annually levy a tax on all taxable 
property in their respective counties, sufficient to main­
tain such separate schools as are hereinafter provided. 
Upon estimate made by the County Commissioners, said 
taxes shall be estimated, published, levied, and collected 
in the same manner as other taxes for county purposes; 
provided, however, that in all Independent Districts 
where separate schools for white and colored children 
are maintained, it shall be the duty of the Board of Edu­
cation therein, at the time provided for preparing its 
annual budget, to prepare a separate budget showing 
the amount of money that will be required to be raised 
by taxation, for the support and maintenance of such 
separate schools, including a sum sufficient to pay a rea­
sonable pro rata share of the cost of supervising, super­
intending and administering the schools and school sys­
tem of said Independent District including said sepa­
rate schools, and the amount necessary to purchase sites 
and to erect school buildings for such separate schools 
for the coming fiscal year; provided, that the share of 
the cost of superintending, supervising and administer­



30

ing the schools and school system of said Independent 
District to be charged against the separate schools 
thereof shall be fixed at an amount not exceeding^/ the 
percentage of the total cost of said superintendence, 
supervision and administration equivalent to the per­
centage thereof, which the average daily attendance at 
the separate schools in said Independent District for 
the preceding school year bear to the total average 
daily attendance at all schools, majority and separate, 
in said Independent District for the preceding school 
year.

‘ ‘ It shall be the duty of the County Excise Boards in 
such counties to levy a tax on all taxable property in 
their respective counties sufficient to pay the cost of 
superintending, supervising, administering, supporting 
and maintaining such separate schools and purchasing- 
sites and erecting school buildings for such separate 
schools as shown by such budget so prepared by the 
Board of Education. Said tax shall be published, levied 
and collected in the same manner as other taxes for 
county purposes, and when collected shall be paid over 
to the respective Treasurers of the Boards of Educa­
tion in such districts to be expended upon the order of 
such Board of Education for the purpose for which the 
same was levied and collected.

“ No white child shall attend a colored school, nor a 
colored child attend a white school. ’ ’

Section 341, Tit. 68, Section 292, S. B. No. 384, Section 1, 
approved May 22, 1937 (Oklahoma Statutes, Ann., July, 
1937) page 484, provides that:

‘ ‘ Pending the expiration of the time within which pro­
tests may be filed with the State Auditor, no warrant 
shall be issued or debt contracted by any municipality 
for any purpose except as provided hereinafter. * * * 
and in such amounts as may be necessary to provide 
accommodations, facilities and school term in the sepa­
rate schools, if any, in each district in the county equal 
to the accommodations, facilities and school term pro­
vided for the other regular public schools in the same



31

district, for county high school, if any, in so far as the 
salaries of teachers and other necessary maintenance 
is concerned, and for aid to the common schools of the 
county. * * *”

H. B. No. 6, Laws, 1937, pages 555, 556, 557, 558, 559, Tit. 
70, Section 648, provides for state aid for the common 
schools, and on the hearing in this case, it was stated that 
prior to the passage of said act, difficulties existed as to a 
full school year of nine months, but that after the passage 
of this act the separate school of district No. 20 did not ex­
perience such difficulty. It was also disclosed that prior to 
the same time, a great percentage of the white schools ex­
perienced the same difficulty.

(5) The conclusion is that the provisions of the Consti­
tution of Oklahoma and also the statutes of said state do 
not violate Section 1 of the Fourteenth Amendment to the 
Federal Constitution, or any other federal guaranteed con­
stitutional right. School District No. 7, Muskogee Co. v. 
Hunnicut (10th Cir.), supra-, Gong Lum v. Bice, 275 U. S. 
78, 72 L. Ed. 172; Cumming v. County Board of Ed., 175 
U. S. 527, 44 L. Ed. 262; Song Him v. Callahan, 119 Fed. 
381; U. S. v. Buntin, supra-, Jelsma, Co. Treas. v. Butler, 
supra; State ex rel. Gumrn v. Albritton, 98 Okla. 158, 224 
Pac. 511; State ex rel. Cheeks v. Wirt, 203 Ind. 121,177 N. E. 
441: Reynolds v. Board of Ed., 66 Kan. 672, 72 Pac. 274; 
Carmichael v. Southern Coal & Coke Co., 301 U. S. 495, 81 
L. Ed. 1245; Gulf Refining Co. v. Phillips (5th Cir)., 11 Fed. 
(2d) 967; Thomas v. Gay, 169 U. S. 264, 142 L. Ed. 740; 
Lawrence v. State Tax Commissioner, 266 U. S. 276,76 L. Ed. 
1102; Stebbins v. Riley, 268 U. S. 137, 69 L. Ed. 884; Travel­
lers Ins. Co. v. State of Conn., 185 U. S. 364, 46 L. Ed. 949; 
Colgate v. Harvey, 296 U. S. 404, 80 L. Ed. 299; Plessy v. 
Ferguson, 163 U. S. 537, 41 L. Ed. 256,16 Sup. Ct. Rep. 1138; 
Greathouse v. Board of School Comrs., — Ind. —, 151 N. E. 
411; Corrigan v. Buckley, 271 U. S. 323, 70 L. Ed. 969; 
Newton v. Board of Comrs., — Colo. —, 282 Pac. 1068; and 
Judice v. Village of Scott, — 121 So. 593.

It is concluded that said state statutes and the provisions 
of the constitution for the separation and maintenance of



32

the separate schools on their face do not violate the federal 
constitution, and that the evidence does not prove a dis­
crimination in the administering of the schools in district 
No. 20 so as to deny the negroes equal protection of the law 
required by Section 1 of the Fourteenth Amendment to the 
Constitution of the United States.

It does not appear that said Board of Education of said 
City of Muskogee, District No. 20, is without constitutional 
or legal authority to issue or sell said bonds, or that the acts 
of said board of education with reference to the proposed 
sale of such bonds are null and void, or that the Attorney 
General and Ex-Officio bond commissioner of said state is 
without legal or constitutional authority to approve or cer­
tify such proposed bonds, or that he should be enjoined and 
restrained from approving said bonds.

The court -concludes that as to any matters in the ad­
ministration of the issuance of the bonds, that plaintiff has 
a plain, adequate, speedy and complete remedy at law in the 
matters complained of in her First Amended and Supple­
mental complaint.

Plaintiff’s or complainant’s application for a temporary 
injunction should be denied.

(Signed) Robert L. W illiams,
United States Circuit Judge.

(Signed) A lfred P. Murrah,
United States District Judge.

(Signed) E ugene Rice,
United States District Judge.

Filed Oct. 12,1938.
Filed in the United States District Court January 4, 1939.

( 10012)



2 nd Civil N o. 14117 
In the District Court of Appeal

SECOND APPELLATE DISTRICT

State of California
CHRISTINE BURKHARDT,

Plaintiff and Respondent,
•vs.

LEE LOFTON, JOHN DOE, JOHN DOE ONE, JOHN 
DOE TWO, JENNIE P. LOFTON, (sued as JANE DOE 
ONE), and JANE DOE TWO, Defendants,

LEE LOFTON and JENNIE. P. LOFTON,
__________________ Appellants.

DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­
THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. COIN and ALICE MARIE COIN, CLARENCE E.
GRAY, LESLIE A. [ONES and MILDRED J. TONES, 
GERTRUDE KADOTJS, FRED KROEKER and ETHEL 
MAE KROEKER VERNON D. MAXSON AND INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS,
NICK A. VACCARIELLO and JOSEPHINE M. VACCA- 
RIELLO, ALBERT HAMILTON VINCENT and VERDA 
LUELA VINCENT, Plaintiffs and Respondents,

vs.
MAE LIDDY. VINCENT TENCHAVEZ, BERTHA TEN- 

CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and 
JENNIE P. LOFTON, Defendants,

LEE S. LOFTON and JENNIE P. LOFTON,
Appellants.

DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­
THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. GOIN and ALICE MARIE GOIN, CLARENCE E.
GRAY, LESLIE A. JONES and MILDRED J. JONES, 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER, VERNON D, MAXSON and INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS,
NICK A. VACCARIELLO and JOSEPHINE M. VAC­
CARIELLO, ALBERT HAMILTON VINCENT and 
VERDA LUELA VINCENT,

Plaintiffs and Respondents, 
vs.

HENRY LAWS, ANNA LAWS and PAULETTA LAWS 
(sued as ONE DOE),

Defendants and Appellants.

APPEAL FROM SUPERIOR COURT OF LOS ANGELES COUNTY 
HON. ROY V. RHODES, JUDGE.

APPELLANTS’ OPENING BRIEF.

T homas L. Griffith, Jr.,
Loren M iller,

1105 East Vernon Avenue, Los Angeles, 
Attorneys for Appellants.





Statement of Questions Involved.
I. Was the evidence sufficient to support a 

judgment enjoining use and occupancy of two 
parcels of land by Negroes where the parcels are 
located on a border line street still sparsely set­
tled 16 years after the opening of the tract and 
which front on a subdivision occupied almost 
exclusively by Negroes, and was the evidence 
sufficient to support a finding that there has been 
no change in the racial character of the neighbor­
hood sufficient to stay the hand of equity, where 
the evidence shows certain changes in bordering 
tracts and that the lots so used and occupied had 
little or no value to Caucasians, and where plain­
tiffs failed to show either damage by non- 
Caucasian occupancy or benefit by enforcement 
of the covenant?

II. Will a restriction against use and occu­
pancy of property by persons not of the Cau­
casian race be enforced where no time limit is 
specified ? Is a dominant tenement created where 
the grantor reserves the right to modify the re­
strictions at his discretion and where the trustee 
holds legal title to sell and subdivide and closes 
the trust and conveys the unsold lots in the tract 
to the settlors, free of any restrictions, and the 
settlors thereafter convey one of the lots to an 
appellant free of any restrictions?

III. Does the evidence support a finding that 
plaintiffs were not guilty of laches and waiver?

IV. Does judicial decree enforcing a restrict­
ing racial covenant offend the equal protection 
clause of the Fourteenth Amendment of the 
United States Constitution?





TOPICAL INDEX.

Statement of questions involved.......................... Preface

Statement of the case.................................................. 2

Specifications of error.................................................  12

Argument ..................................................................  15

There can be no equitable servitude where no domi­
nant tenement created ......................................... 15

Equity will not enjoin use and occupancy merely
to harass a lot owner..........................................  20

Changes in the character of a neighborhood will
stay enforcement of a restrictive covenant..........  24

Laches and waiver will bar the right to enforce a
restrictive agreement ...........................................  31

A restriction of use and occupancy unlimited as to
time is void.......................................................... 36

All necessary parties to a complete determination 
of an action should be made parties to the action 38 

An injunction should not issue to restrain the al­
leged violation of restrictions in a tract where the 
restrictions have been modified and the original 
grantees took the lots with notice that the grantor 
reserved the right to modify the restrictions......  41
(1) A subsequent grant contrary to restrictions

by a grantor with power to modify oper­
ates as a revocation of the original instru­
ment .............................................................  41

(2) An equitable servitude is not created where
the understanding of the parties is left to 
mere conjecture .....................................-....  45

PAGE



A judicial decree of a state court enforcing, 
against members of the Negro race, restrictive 
residence covenants, offends the equal protection 
clause of the Fourteenth Amendment to the 
United States and Article One, Sections One 
and Twenty-one of the Constitution of the State 
of California .................................................   53

(1) Judicial action constitutes “State” action 
within the meaning of the Fourteenth 
Amendment ........................    53
(a) The broadening scope of the Fourteenth

Amendment as to what constitutes state 
action ..................................................... 54

(b) The broadening protection of Negroes
from discrimination because of race or 
color ............   55

(c) The growing judicial emphasis upon
personal rights as distinguished from 
property or contract rights.......   60

Enforcement of restrictive covenants against the 
Negro race, because of race or color, is against 
the present public policy of the nation, and of 
this state .........   64
(a) National unity urged in the National De­

fense Program ................................ _...........  64
(b) Restrictions because of race, creed or color

are inconsistent with the public policy of 
this state ....................................................... 65

(c) The right to acquire and possess property
is guaranteed by our California Constitution 68

Conclusion .........................................   69

ii.

PAGE



TABLE OF AUTHORITIES CITED.

Cases. page

Allgeyer v. Louisiana, 165 U. S. 578........................  62
Ambassador Petroleum Co. v. Superior Court, 208 

Cal. 667 .................................................... 39

Bank of America v. Superior Court, 16 Cal (2d)
516...........................................................................  39

Bard v. Kent, 37 Cal. App. (2d) 160........................  42
Berryman v. Hotel Savoy Co., 160 Cal. 559..........17, 47
Boye v. Boerner, 12 Cal. App. (2d) 186................... 43

Bresee v. Dunn, 178 Cal. 96............................... ....... 17
Bridges v. California, 86 L. Ed. (Adv. Op.) 179.... 54
Brown v. Wrightman, 5 Cal. App. 391...................... 48
Buchanan v. Worley, 245 U. S. 60...................... 56, 58
Chapman v. Bank of California, 97 Cal. 155.............  31
Cornish v. O’Donoghue, 30 Fed. 298..........................  58
Corrigan v. Buckley, 271 U. S. 323............................ 57
Downs v. Kroeger, 200 Cal. 743...............................

.................................................... 21, 22, 23, 24, 25, 29
Feinberg v. One Doe Co., 14 Cal. (2d) 24...............  24
Firth v. Marovich, 160 Cal. 257................................ 17
Foster v. Stewart, 134 Cal. App. 482.................... 36, 37
Friesen v. City of Glendale, 209 Cal. 524................... 25
Gandolfo v. Hartman, 49 Fed. 181..........................  59
Grady v. Garland, 89 Fed. (2d) 817..........................  58
Hague v. C. I. O., 307 U. S. 496...............................  54
Flamilton v. Regents, 293 U. S. 245..........................  55
Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. App. 462 48 
Hansberry v. Lee, 311 U. S. 32..........24, 34, 35, 39, 57

iii.



IV.

Hartman Ranch Co. v. Associated Oil Co., 10 Cal.
(2d) 232 ................................................................   38

Hess v. Country Club Park, 213 Cal. 613.................. 25
Home Building and Loan Association v. Blaisdell, 290

U. S. 398.................................................................. 63
Hundley v. Gorewitz, ..... Fed. Rep................ 25, 26, 30
Hurd v. Albert, 214 Cal. 14........................................ 25
Kennedy v. Lee, 147 Cal. 596...................................  42
Kern v. Commissioners of City of Newton, 147 Kan.

471 .........................................................................   67
Koehler v. Rowland, 275 Mo. 573.........................25, 27
Kuhn v. Saum, 316 Mo. 805................................ .......  19
Lake v. Dow, 207 Cal. 290...........................................  38
Latteau v. Ellis, 122 Cal. App. 584.........................25, 72
Lorenzen, Ex parte, 128 Cal. 431....................... .......  69
Los Angeles and Arizona Land Co. v. Marr, 187

Cal. 126 .............................................................35, 48
Los Angeles Athletic Club v. Long Beach, 128 Cal.

App. 427 .................................................................. 32
Los Angeles Investment Co. v. Garry, 180 Cal. 680

............................................................................. 57, 58
Lovell v. Griffin, 303 U. S. 444..................................  54
Main St. etc. Railroad Co. v. Los Angeles Traction

Co., 129 Cal. 301.......................................................  42
Martin v. Holm, 197 Cal. 733....................................  47
McBride v. Freeman, 191 Cal. 158..........................44, 47
Minersville School District v. Gobitis, 310 U. S. 586 60
Missouri ex rel. Gaines v. Canada, 305 U. S. 337......  55
Mitchell v. United States, 313 U. S. 80................... 55
Mooney v. Holohan, 294 U. S. 103.................... ........ 53

PAGE



V.

Nixon v. Herndon, 273 U. S. 536.............................. 55

Norris v. Alabama, 294 U. S. 594.............................. 55

O’Connor v. Irvine, 74 Cal. 435.................................  38
One and Three South William St. Bldg. Corporation 

v. Gardens Corporation, 232 App. Div. Reports
(N. Y.) 59............................................................. 19

Palko v. Connecticut, 302 U. S. 219..........................  61
Pierre v. Lousiana, 306 U. S. 354.............................. 55
Piper v. Big Pine School District, 193 Cal. 664........  67
Russell v. Wallace, 30 Fed. (2d) 981............... ......... 58
Sacramento O. etc. Home v. Chambers, 25 Cal. App.

536...........................................................................  67
Schneider v. State, 308 U. S. 147.............................. 54
Simpson v. City of Los Angeles, 4 Cal. (2d) 60,

27 Cal. App. (2d) 293............................................  69
Smith v. Texas, 311 U. S. 129.............. ....................  55
Stone v. Board of Directors of Pasadena, 47 Cal.

App. (2d) 851.........................................................  67
Taylor v. Georgia, 86 L. Ed. (Adv. Op.) 371............ 55
Tenant v. John Tenant Memorial Home, 167 Cal.

575 .......................................................................... 46
Title Guaranty v. Henry, 208 Cal. 185......................  38
Truax v. Corrigan, 257 U. S. 312.............................  59
Tucker v. Beneke, 180 Cal. 588.................................  32
Twohey v. Realty Syndicate Co., 4 Cal. (2d) 397......  42
Tynan v. Kerns, 119 Cal. 447...................................  36
Vesper v. Forest Lawn Cemetery Assn., 20 Cal. App.

(2d) 157..................................................................  23
Wagoner v. Hannah, 38 Cal. I l l .....................   15
Walker v. Haslett, 44 Cal. App. 394..........................  23

PAGE



VI.

Waltz, In re, 197 Cal. 263.......................................... 43
Ward v. Flood, 48 Cal. 36.......................................... 67
Wedum-Aldahl Co. v. Miller, 18 Cal. App. (2d) 745 48
Werner v. Graham, 181 Cal. 174................15, 17, 44, 47
West Coast Hotel Co. v. Parrish, 300 U. S. 379....... 62
Wing v. Forest Lawn Cemetery Assn., 15 Cal. (2d)

472........ .........................................................15, 18, 49
Yick Wo v. Hopkins, 118 U. S. 356........................ . 59

PAGE

Miscellaneous.
57 American Law Reports 336...........................   23
20 California Jurisprudence, 575, 576.......................  39
26 Corpus Juris Secundum 515, 516...........................  17
26 Corpus Juris Secundum 574.........................   22
26 Corpus Juris Secundum 774, 775...........................  23
Executive Order No. 8802, dated June 25, 1941........  64
Wendell Willkie’s address in Los Angeles on July 20,

1942...........................................................................  65
Wendell Willkie, One World.......................... ,........... 71

Statutes.
California Constitution, Art. I, Sec. 1.........................  68
California Constitution, Art. I, Sec. 21.......................  68
Civil Code, Sec. 51................................................    66
Civil Code, Sec. 52.......................................................  66
Civil Code, Sec. 1229....................................................  46
Civil Code, Sec. 1698....................................................  42
Code of Civil Procedure, Sec. 389.......................   39
Code of Civil Procedure, Sec. 711........................ 36, 37
Code of Civil Procedure, Sec. 715  ..................36, 37
Fifth Amendment to the United States Constitution.... 59 
Fourteenth Amendment to the United States Con­

stitution ...................................................................  59



In the District Court of Appeal
SECOND APPELLATE DISTRICT

State of California
CHRISTINE BURKHARDT,

Plaintiff and Respondent, 
vs.

LEE LOFTON, JOHN DOE, JOHN DOE ONE, JOHN 
DOE TWO, JENNIE P. LOFTON, (sued as JANE DOE 
ONE), and JANE DOE TWO,

Defendants,
LEE LOFTON and JENNIE P. LOFTON,

Appellants.
DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­

THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. COIN and ALICE MARIE COIN, CLARENCE E. 
GRAY, LESLIE A. TONES and MILDRED J. JONES, 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER VERNON D. MAXSON AND INEZ
B. MAXSON, TOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS, 
NICK A. VACCARIELLO and TOSEPHINE M. VACCA­
RIELLO, ALBERT HAMILTON VINCENT and VERDA 
LUELA VINCENT,

Plaintiffs and Respondents,
*  vs.

MAE LIDDY, VINCENT TENCHAVEZ, BERTHA TEN- 
CHAVEZ, SIMON D. ROPARIO, LEE S. LOFTON and 
JENNIE P. LOFTON,

Defendants,
LEE S. LOFTON and JENNIE P. LOFTON,

Appellants.
DOLE M. BURKMAN and GENEVA E. BURKMAN, BER­

THA COLLEY, MARY ELIZABETH CRUME, WIL­
LIAM T. DAVIS and BEATRICE DAVIS, CLARENCE
A. COIN and ALICE MARIE GOIN, CLARENCE E. 
GRAY, LESLIE A. JONES and MILDRED J. JONES, 
GERTRUDE KADOUS, FRED KROEKER and ETHEL 
MAE KROEKER, VERNON D, MAXSON and INEZ
B. MAXSON, JOSE MENDOZA and CONSUELO M. 
MENDOZA, ARNOLD THOMAS and PEARL THOMAS, 
NICK A. VACCARIELLO and JOSEPHINE M. VAC­
CARIELLO, ALBERT HAMILTON VINCENT and 
VERDA LUELA VINCENT,

Plaintiffs and Respondents, 
vs.

HENRY LAWS, ANNA LAWS and PAULETTA LAWS 
(sued as ONE DOE),

Defendants and Appellants.

APPELLANTS’ OPENING BRIEF.



— 2 —

Statement of the Case.

This is an appeal from a judgment entered in 
three cases, consolidated for the trial and for 
the purpose of appeal, enjoining defendants, Lee 
Lofton and Jennie P. Lofton, from using, or 
occupying any portion of Lot 498 or any other 
lot in Tract 7421 as recorded in Book 81, pages 
64, 65, 66, of Maps in the office of the County 
Recorder of Los Angeles County, and enjoining 
defendants, Henry Laws, Anna Laws, and Paul- 
etta Laws, from using or occupying any portion 
of Lot 500 or any other lot in the same tract. 
All defendants are Negroes. A perpetual in­
junction was granted on the ground that use or 
occupancy of the lots would be violative of cer­
tain “ Building Restrictions of Tract 7421 known 
as New Goodyear Tract Unit No. 2” recorded in 
Book 3027, pages 35, 36, of Official Records of 
Los Angeles County, the cogent parts of which 
follow:

“That said premises shall not be leased, sold, 
or conveyed to or used or occupied by any 
person not of the Caucasion race.

“ The Bank of Italy hereby reserves the 
right to modify at its discretion the provi­
sions, conditions, restrictions and covenants 
herein contained.”

Tract 7421 is located in the southeasterly sec­
tion of the City of Los Angeles and is bounded 
on the west by Central avenue, on the east by



—3—

Zamora avenue, on the south by East 92nd street 
and on the north by Manchester avenue [Plain­
tiff’s Exhibit 6] and was subdivided in 1923 
[Plaintiff’s Exhibit 2],

Central Gardens Tract adjoins the easterly half 
of Tract 7421 on its southern border. [Rep. Tr. 
p. 323, lines 8 to 11.] Tract 7593 adjoins the 
westerly half of Tract 7421 on its southern bor­
der. [Rep. Tr. p. 322, lines 1 to 4.] The Pardee 
Tract adjoins a portion of Tract 7421 on the 
east. [Rep. Tr. p. 327, lines 8 to 11.] Also 
lying east of Tract 7421 is the Prince Tract. 
[Rep. Tr. p. 327, lines 18 to 21.]

Defendants Loftons’ post office address is 1219 
East 92nd street, Los Angeles [Rep. Tr. p. 223, 
line 19] ; defendant Laws’ post office address is 
1235 East 92nd street, Los Angeles. [Rep. Tr. 
p. 223, line 22.] Defendants Loftons purchased 
their parcel and began occupancy early in Oc­
tober, 1939 [Rep. Tr. p. 222, lines 20, 22], and 
have resided there continuously since. [Rep. Tr. 
p. 223, lines 6 to 8.] Defendants Laws pur­
chased their parcel on contract in November, 
1935 [Rep. Tr. p. 536, line 19], and recorded a 
deed to it on August 29, 1940 (Defendant’s Ex­
hibit A ) ; they began building a home on the par­
cel in June, 1941 [Rep. Tr. p. 540, lines 8 to 10], 
and began occupancy of the home constructed 
by Federal Housing Authority funds about 
March 17, 1942. [Rep. Tr. p. 227, lines 22,



4

23.] Prior to the construction of the home de­
fendant, Henry Laws, had made certain use of 
that parcel [Rep. Tr. p. 564, lines 19, 20; p. 565, 
line 3; p. 566, line 6; p. 567, line 4; p. 567, line 
8], which h^d extended over a period of approxi­
mately seven years. [Rep. Tr. p. 565, line 3.]

There are 21 lots on north side of East 92nd 
street, included in Tract 7421 (Plaintiff’s Exhibit 
6), and at the time the defendants Loftons began 
occupancy of Lot 500 only four of those lots 
were occupied as dwellings. [Rep. Tr. p. 656, 
line 24, to p. 657, line 6.] The only other 
structure of any kind on the north side of 
92nd street, included in Tract 7421, was a busi­
ness structure near Central avenue. [Rep. Tr. p. 
660, lines 14, 15.] The south side of East 92nd 
street between Hooper avenue and Zamora street 
is. included in the Central Avenue Gardens Tract 
occupied almost exclusively by Negroes. [Rep. 
Tr. p. 518, lines 17 to 20.] The house facing 
Lot 500 is occupied by Negroes. [Rep. Tr. p. 
660, line 23, to p. 661, line 2.] All houses 
on the south side of East 92nd street be­
tween Central avenue and Zamora avenue, the 
area fronting on Tract 7421, are used and occu­
pied by non-Caucasians. [Rep. Tr. p. 514, lines 
10 to 14.]

Defendants called three expert witnesses, all 
real estate brokers, zvho testified that Lots 498 
and 500, Tract 7421, had “no sale value to Cau-



— 5—

eastern, races”  [Rep. Tr. p. 489, line 16], but 
“could be sold to colored people”  [Rep. Tr. p. 
490, line 2], explaining that there “are so many 
colored people from Compton avenue over to 
Central that white people wouldn’t buy in there. 
We have tried it; they won’ t buy”  [Rep. Tr. p. 
490, lines 12 to 14]; that “A person of the Cau­
casian race zuould not buy that property”  [Rep. 
Tr. p. 685, lines 6, 7]; that these parcels “woidd 
not have much sale value to people of the Cau­
casian race”  [Rep. Tr. p. 557, line 9 ]; that the 
property woidd have “ limited, very limited, if 
any” sale value to persons of the Caucasion race. 
[Rep. Tr. p. 554, line 9.] No evidence of any 
kind was adduced to the contrary.

All evidence as to changed conditions of racial 
occupancy referred to conditions outside of 
Tract 7421 and in adjoining areas. There were 
few Negroes in the entire surrounding area in 
1923. [Rep. Tr. p. 484, lines 10 to 13.] The 
Central Avenue Gardens Tract, one of the south­
erly adjoining tracts, was developed roughly 
simultaneously with Tract 7421 and the number 
of Negroes living in that tract has steadily in­
creased over the years. [Rep. Tr. p. 511, lines 
21 to 25.] The number of Negroes in the Par­
dee Tract, adjoining a portion of Tract 7421 to 
the east, and subdivided long before subdivision 
of Tract 7421, has increased steadily since 1923. 
[Rep. Tr. p. 627, lines 17 to 20; p. 628, line 9;



p. 630, lines 10 to 12; p. 727, lines 3 to 5; p. 364, 
lines 5 to 16.] The change in the Pardee Tract 
has been from one of a majority of whites to a 
majority of Negroes within the past five or seven 
years. [Rep. Tr. p. 364, lines 5 to 16.] The 
increase in the number of Negroes living in 
tracts adjacent to Tract 7421 has brought a cor­
responding proportionate increase in the number 
of Negroes using the public streets in and about 
Tract 7421. [Rep. Tr. p. 574, line 10; p. 528, 
line 14; p. 529, line 8; p. 601, lines 13, 14; p. 
612, line 23 to 26; p. 501, lines 18 to 23.] The 
number of Negro children at the Firth Boulevard 
School located approximately a mile south of 
Tract 7421 had increased materially in the past 
ten years [Rep. Tr. p. 521, lines 6 to 25], and 
that school now employs one Negro teacher. 
[Rep. Tr. p. 525, lines 18 to 23.] A market lo­
cated in the center of Tract 7421 attracts 
Negro customers [Rep. Tr. p. 764, line 23], and 
of that market’s sixty or so steady customers 
some seven or eight are Negroes [Rep. Tr. p. 
764, line 23], and there are additional Negro cus­
tomers who are more casual customers. [Rep. 
Tr. p. 766, line 15.] A bus line routed through 
Tract 7421 carries more Negro passengers than 
white [Rep. Tr. p. 750, lines 4 to 7], and the 
number of Negro bus passengers is on the in­
crease. [Rep. Tr. p. 751, lines 13 to 15.] 
There were no changes in Prince Tract, which 
remains an area of white occupancy.



—7—

Plaintiffs all kneiv of defendants Loftons’ oc­
cupancy of Lot 498 at the time they began that 
occupancy [Rep. Tr. p. 634, lines 2 to 7] in Oc­
tober, 1939. [Rep. Tr. p. 223, lines 6 to 8.] 
First suit was filed against defendants Loftons 
by plaintiff Burkhardt on June 24, 1940. [Clk. 
Tr. p. 10, lines 19, 20.] Second suit was filed 
by other plaintiffs against defendants Loftons on 
August 7, 1941. [Clk. Tr. p. 42, lines 19, 20.] 
Meanwhile defendants Loftons had made certain 
improvements to their property in the interim 
before the first suit was filed. [Rep. Tr. p. 583, 
line 14; p. 584, lines 14, 20, 24; p. 585, lines 18, 
22, 23, 25; p. 586, lines 3, 5, 22.]

In explanation of the delay in filing suit 
against defendants Loftons plaintiffs were per­
mitted, over objection, to introduce into evidence 
Plaintiff’s Exhibit 45, a letter from an attorney, 
Paul Briskin, to Bank of America in which de­
mand was made on the bank to enforce the re­
strictive covenant, and another letter, Plaintiff’s 
Exhibit 48, from a Mrs. Ada Mclver, not a 
party plaintiff in any of the actions, to Bank of 
America also demanding enforcement of the 
racial restrictions. Replies to each of these let­
ters were also admitted into evidence and are 
marked, respectively, Plaintiff’s Exhibits 47 and 
49. Plaintiffs then “organized a meeting” [Rep. 
Tr. p. 798, lines 8 to 10] and that meeting was 
held about August 23rd, 1939 [Rep. Tr. p. 798,



line 12], and the attorney Briskin was employed 
to represent tract owners. [Rep. Tr. p. 806, 
lines 12 to 16.] He continued to represent that 
group until after the disposition of Case No. 
444,606, not involved in this appeal, and directed 
against a certain other alleged Filipino violator 
of the covenant not before this court. [Rep. Tr. 
p. 806, lines 23 to 26.] Mr. Briskin was attorney 
for the entire group. [Rep. Tr. p. 807, lines 8 
to 11.] From 75 to 100 persons were members 
of that group [Rep. Tr. p. 808, lines 1 to 3] 
which collected funds to employ first the attorney 
Briskin and later an attorney Nathan Snyder 
[Rep. Tr. p. 808, lines 19, 20] and have borne all 
expenses of litigation. [Rep. Tr. p. 812, lines 12 
to 14.] The attorney Snyder first represented 
plaintiffs in the action 453,530, on appeal here. 
[Rep. Tr. p. 809, lines 3 to 6.] That group is 
still active and was the moving spirit behind the 
cases on appeal here. [Rep. Tr. p. 809, lines 9, 
10.] Plaintiffs delayed filing suit on advice of 
counsel that a suit filed against the alleged Fili­
pino violator, prior to entering of suits against 
appellants here, would “take care of any other 
violators in the tract” [Rep. Tr. p. 891, line 22, 
to p. 892, line 3], and who believed that the suit 
filed against the alleged Filipino violator was 
a class or representative suit sufficient to bind 
by its judgment all property owners in the tract 
and all other alleged violators of the agreement. 
[Rep. Tr. p. 894, lines 9 to 19.]



—9—

Defendants Loftons’ deed was silent as to the 
question of restrictions and made no reference to 
the plan of restrictions [Plaintiff’s Exhibit 34] 
and defendants Loftons testified that they had no 
actual notice of the racial restrictions at the time 
of purchase. [Rep. Tr. p. 590, lines 19 to 22.] 
Title to the Loftons’ lot was deraigned through 
mesne conveyances from the Bank of Italy, the 
first of which did set forth the restrictions as to 
the use and occupancy and made reference to the 
plan of restrictions.

Defendants Laws purchased Lot 500 from one 
Gilbert. [Plaintiff’s Exhibit 40.] Gilbert was 
one of four original owners of the entire tract 
who conveyed it in trust to Bank of Italy for sub­
division purposes [Rep. Tr. p. 764, lines 16 to 
18] Bank of America, successor to Bank of Italy, 
entered into a contract for purchase of the lot 
with one Maude Darden [Plaintiff’s Exhibit 37] 
referring to the restrictions. Bank of America 
later conveyed entire interest in tract back to four 
trustors. [Rep. Tr. p. 114, pp. 3 to 9.] Darden 
later quit claimed all her interest in Lot 500 to 
four trustors. [Plaintiff’s Exhibit 38.] Three 
of the four trustors then conveyed all claimed in­
terest in Lot 500 to Gilbert, one of their number 
[Plaintiff’s Exhibit 39] and Gilbert’s conveyance 
to Laws of Lot 500 made no reference to restric­
tions or of the plan of restrictions. Thus de­
fendants Laws deraign title from a grantor in



— 1 0 —

whom both legal and equitable title had 'merged 
at the time of sale and who inserted in the deed 
to that Lot 500 no restrictions and made no refer­
ence in that deed to the plan of restrictions.

Defendants find themselves enjoined from 
using and occupying property which they own 
and which has great value to them but which has 
little or no sale or rental value to persons of the 
Caucasian race, property which had stood vacant 
for many years and which fronts on property 
owned, used and occupied by other Negroes.

In 1930 and prior to the purchase of Lots 
498 and 500 the subdivision trust on Tract 7421 
was closed. The Bank of Italy reconveyed unsold 
lots back to the trustors without inserting in the 
instrument that the lots were subject to the re­
strictions. This act constituted a modification of 
the restrictions which they had a right to do, 
and of which the original grantees had notice. The 
alleged restrictions were no longer enforceable 
since they were created for the benefit of the 
whole tract and not for certain lots in the tract.

The court found that the restrictions are im­
posed for the benefit of each owner of land in said 
tract or any interest therein and was a servitude 
in favor of each and every parcel of land. [Clk. 
Tr. p. 142, lines 12 to 21.]



— 1 1 —

The court found that the provision in said re­
strictions that said lots or parcels of said tract 
shall not be used or occupied by any person not 
of the Caucasian race is valid and enforceable.

The court further found that the character of 
the community in which Tract No. 7421 is located 
had not changed. [Clk. Tr. p. 120, lines 7 to 10.]

The court further found that it is untrue that 
said Bank of Italy, or any successor in interest 
of said bank did exercise any such discretion, or 
did modify any provision, condition, restriction or 
covenant contained in said Exhibit “A ” . [Clk. 
Tr. p. 126, lines 2 to 4.]

As a conclusion of law the court found that 
Lee S. Lofton, Jennie P. Lofton, Henry Laws 
and Pauletta Laws should be restrained and en­
joined from using or occupying any portion of 
Lots No. 498 and 500, or any other lot of said 
Tract No. 7421. [Clk. Tr. p. 144, line 25, to p. 
145, line 9.]

As a conclusion of law the court further found 
that the restrictions are for the benefit of each 
owner of land in said tract, or having any inter­
est therein. [Clk. Tr. p. 142, lines 13 to 16.]

As a conclusion of law, the court further found 
that the restrictions are imposed upon said prop-



— 1 2 —

erty as a servitude in favor of each and every lot 
or parcel of land in said tract as the dominant 
tenement or tenements. [Clk. Tr. p. 142, lines 
18 to 21.]

And as a conclusion of law, the court further 
found that as to each lot owned in said tract, re­
strictions are covenants running with the land and 
the breach thereof for the continuance of any 
such breach may be enjoined, abated or remedied 
by appropriate proceedings. [Clk. Tr. p. 142, 
line 23, to p. 143, line 1.]

Specifications of Error.

1. A finding that the restrictions are imposed 
for the benefit of each owner of land in said tract 
is contrary to law.

2. A finding that the provision in said restric­
tions that said lots or parcels of said tract, shall 
not be used or occupied by any person not of the 
Caucasian race is valid and enforceable is not 
supported by the evidence, is contrary to law, and 
against the policy of the law.

3. A finding that the character of the com­
munity in which Tract No. 7421 is located had 
not changed, is not supported by the evidence.



13—

4. A finding that the Bank of Italy or its 
successors had not exercised its discretion or 
modified the provision, is not supported by the 
evidence.

5. The conclusion of law and the judgment 
permanently and perpetually enjoining Lee S. 
Lofton, Jennie P. Lofton, Henry Laws, Anna 
Laws and Pauletta Laws are not supported by 
the evidence.

6. The preponderance of evidence conclusively 
shows that the racial character of the community 
in which Tract 7421 is located had changed ma­
terially, and that the lots so used and occupied 
by appellants had little or no sale value to 
Caucasians.

7. The preponderance of evidence conclusively 
shows that the Bank of Italy did modify the re­
strictions and that its successors did modify the 
restrictions.

8. That a finding that the Bank of Italy was 
the owner of the real property known as Tract 
7421 and was not a necessary party to a complete 
determination of the controversy, and that there 
has not been a defect or non-joinder of parties 
plaintiff, is not supported by the evidence. (



— 14—

9. A conclusion found that the restrictions 
are for the benefit of each owner of land in said 
tract or having any interest therein, is contrary to 
the evidence' and an error in law.

10. A conclusion found that the restrictions 
are imposed upon said property as a servitude in 
favor of each and every lot or parcel of land in 
said tract as the dominant tenement or tenements, 
is not supported by the evidence and is an error 
in law.

11. A conclusion found that the restrictions 
are covenants running with the land and the 
breach thereof for the continuance of any such 
breach may be enjoined, abated or remedied by 
appropriate proceedings, is not supported by the 
evidence, and is an error in law.

12. A conclusion found that said restrictions 
are for the benefit of each owner of land as 
aforesaid, and are imposed upon said property as 
a servitude in favor of each and every lot or par­
cel of land and are covenants with the land, is 
contrary to the evidence where the evidence af­
firmatively shows that the grantor imposed the 
alleged restrictions on the lots conveyed to the 
grantee, but in nowise bound itself to impose re­
strictions on any which was retained by it, or con­
vey to the property which it may have held sub­
ject to the same or similar restrictions, or to do 
anything in favor of the property of the grantee.



- 1 5 -

ARGUMENT.
There Can be No Equitable Servitude Where 

No Dominant Tenement Created.

The law is well settled in California that there 
can be no equitable easement without the creation 
of a dominant tenement.

Wing v. Forest Lawn Cemetery Assn., 15 
Cal. (2d) 472;

Wagoner v. Hannah, 38 Cal. I l l ;
Werner v. Graham, 181 Cal. 174.

Reference to the so-called “building restric­
tions of Tract 7421 known as the New Goodyear 
Tract Unit No. Two” [Clk. Tr. p. 30, line 11, 
to p. 34, line 24] discloses the fact that the 
instrument purports to create dominant and 
servient tenements in these words, the owner of 
the real property

“hereby certifies and declares that it has 
established and does hereby establish a gen­
eral plan for the improvement and develop­
ment of said Tract, and does hereby estab­
lish the provisions, conditions, restrictions 
and covenants upon and subject to which all 
lots and portions of lots in said Tract, herein 
referred to as ‘said property,’ shall be im­
proved or sold and conveyed by it as such 
owner, each and all of which is and are for 
the benefit of each owner of land in said 
property, or any interest therein, and shall 
inure to and pass with each and every parcel



■16—

of said property and shall apply to and bind 
the respective successors in interest of the 
principal owner or owners thereof, and are 
and each thereof is imposed upon said 
property as a servitude in favor of each and 
every such parcel of land therein as the 
dominant tenement or tenements.” [Clk. 
Tr. p. 30, line 20, to p. 31, line 8.]

Following that declaration the restrictions are 
set forth in detail and if the documents were 
silent except as to restrictions from that point 
forward there could be no question but that a 
dominant tenement had been created, and that 
subsequent grantees would have been given the 
right which they assert in the case at bar. 
However, the subdivider did not stop at that 
point. It provided that:

“ The Bank of Italy hereby reserves the 
right to modify at its discretion the pro­
visions, conditions, restrictions and cove­
nants herein contained.”  [Clk. Tr. p. 34, 
lines 13 to 15.]

Thus, what it had given with one hand, it took 
back with the other hand; it could at any time 
have modified any condition, restriction, or pro­
vision and taking with notice as they did, grantee 
could have had no cause for complaint had the



Bank so modified the conditions, restrictions, and 
covenants as to admit a Negro to the right of 
use and occupancy in the Tract.

An instrument creating or claiming to create 
a servitude will be strictly construed any doubt 
being resolved in favor of the free use of the 
land.

Werner v. Graham, 181 Cal. 174;
Firth v. Marovich, 160 Cal. 257;
Berryman v. Hotel Savoy Co., 160 Cal. 

559;
Bresee v. Dunn, 178 Cal. 96;
26 C. J. S. 515, 516.

The Court in this case is then confronted with 
a situation in which the original grantor was in 
no wise found to impose restrictions and where 
the subsequent grantees could not have com­
plained had the grantor failed or refused to im­
pose restrictions. Under such circumstances the 
grantees cannot maintain an action for injunction 
to restrain alleged violations of the racial restric­
tive covenant. Where the grantor in no wise 
bound itself to impose restrictions on any prop­
erty retained by it or to convey other property 
which it may have held subject to the same or 
similar restrictions or to do anything in favor

— 1 7 -



-1 8 -

of the property of the grantee equitable servitude 
is not created.

Wing v. Forest Lawn Cemetery Assn., 
15 Cal. (2d) 472 at 481.

Where a grantee cannot compel his grantor to 
reserve the restrictions, he cannot compel a sub­
sequent grantee to do so. That statement is 
quoted with approval in Wing v. Forest Lawn 
Assn., supra, in quoting from a Missouri case.

“The next inquiry is whether the deed 
from the St. Louis Improvement Company 
to respondent imposed a negative easement 
in favor of the grantee on the remaining 
lands of the grantor, which included the lot 
subsequently purchased by appellants. In 
this connection it will be noted that all the 
covenants in that deed, which may be termed 
restrictive, were made on the part of the 
grantee. The grantor made none. That 
fact, standing alone, shows prima facie that 
the restrictions were imposed solely for the 
benefit of the grantor’s remaining land. 
Consequently, if the grantor made use of his 
remaining land which did not conform to 
such restrictions, his grantee had no ground 
of complaint. And if the grantee could not 
compel his grantor to observe the restric­
tions, he could not compel a subsequent 
grantee to do so. Beattie v. Howell, 98 
N. J. Eq. 163, 129 A. 822. However, the



- 1 9 -

deed from the St. Louis Improvement Com­
pany to respondent expressly provided that 
the restrictions were made ‘for the mutual 
benefit of all parties purchasing lots by 
similar conveyances from this grantor.’ But 
the grantor on its part did not covenant to 
make similar conveyances of the lots, or 
any of them, and he did not make a similar 
conveyance to appellants’ grantor.”

Kuhn v. Saum, 316 Mo. 805.

Reservation of the right to modify gives the 
grantor the right to vary the restrictions and to 
permit building of a kind wholly differing from 
those described in restrictions.

One and Three South William St. Bldg.
Corporation v. Gardens Corporation.
232 App. Div. Reports (N. Y.) 59.

In the case just cited earlier deeds provided 
for houses of a certain character and the sub­
division had become one of New York City’s 
most beautiful residential centers. Under the 
right to modify the subdivider permitted the con­
struction of an apartment house. The court 
held that the right to “waive change and modify” 
gave the subdivider the right to permit the con­
struction sought to be enjoined, remarking that 
the grantees had notice of that right through 
the reservation in the restrictions.



— 2 0 -

Equity Will Not Enjoin Use and Occupancy 
Merely to Harass a Lot Owner.

There is no dispute in this case that defendants 
Loftons and Laws who were enjoined from 
using and occupying respectively Lot 489 and 
Lot 500 in Tract 7421, or any other lot or lots 
in the Tract, are Negroes, and that the lots 
occupied by them are located on the southern 
border line street of Tract 7421. Additionally, 
the evidence shows that the lots occupied by them 
are directly across the street from and their 
houses face a subdivision occupied almost ex­
clusively by Negroes. [Rep. Tr. p. 518, lines 
17 to 20.]

The evidence is also clear that of the twenty- 
one lots on East 92nd street, the southern border 
line street of Tract 7241, only six are occupied 
as dwellings [Rep. Tr. p. 656, line 24, to p. 657, 
line 6] and appellants herein occupied two of 
those dwellings. Tract 7421 was opened as a 
subdivision in 1923, but the rest of the lots 
remain vacant. The houses located on East 92nd 
street that face the homes occupied by appellants 
herein are occupied by Negroes. [Rep. Tr. p. 
660, line 23, to p. 661, line 2.]

Appellants’ witnesses testified that the lots 498 
and 500 had little or no sale value to persons of 
the Caucasian race, but could be sold to colored 
people. One witness stated categorically that ef­
forts had been made to sell the property to Cau-



—21

casians, but that they would not buy. [Rep. Tr. 
p. 685, lines 6-7.] There is absolutely no evidence 
to the contrary. The factual situation is plain: 
Appellants are occupying lots on a sparsely set­
tled street, the lots have little or no sale value 
to Caucasians, but do have value to Negroes and 
the lots are located on a street one side of which 
is an area of Negro occupancy. Under that 
situation the effect of an injunction restraining 
continued use and occupancy would be to harass 
appellants herein. Equity will not grant relief 
under such circumstances.

Downs v. Kroeger, 200 Cal. 743.

The situation in Downs v. Kroeger, supra, is 
the identical factual situation presented here, ex­
cept that in Downs v. Kroeger, supra, an effort 
was made to enforce a building restriction and in 
this case a racial restriction is sought to be en­
forced. In the cited case the trial court made 
findings in favor of the alleged violator while 
in the case at bar the trial court has made find­
ings against the alleged violator. But on prin­
ciple it is submitted that the final judgment in 
the case at bar should accord with that which 
finally obtained in the cited case.

Although respondents in the case at bar al­
leged that they would be and were being dam­
aged by appellants’ use and occupancy of the 
lots, it is significant that there is not a single



- 2 2 -

word of testimony to that effect in the record. 
Nor is there any testimony that the granting of 
the injunction would or can confer any benefit on 
them whatsoever. None of the respondents in 
the cases below were residents of East 92nd 
street, the street occupied by appellants herein. 
Although the Court made a general finding 
XLVII [Clk. Tr. p. 123, line 13] that the allega­
tions of the complaints in respect to damages 
were true, such a finding has no support in the 
evidence and it is essential in a case of this kind 
that damage will flow from non-enforcement of 
the restrictive covenant or that benefit will ac­
crue from enforcement of the covenant.

Downs v. Kroeger, 200 Cal. 743.

The rule is well stated as follows:
“While it has been held that under proper 

circumstances equity will give relief in case 
of a breach of a restrictive covenant regard­
less of the fact that the complaint has 
suffered no substantial injury, the more 
general rule, particularly in the case of re­
strictions imposed by a general building- 
plan is that equity will not take cognizance 
of technical or immaterial violations.”

26 C. / .  6'. 574.



—23-

“Equity will not as a rule take cognizance 
of a violation of a restriction . . . where 
the enforcement would have no other result 
than to harass or injure defendant without 
effecting the purpose for which it was 
originally made.”

26 C. J. S. 774, 775.

True enough there is an expression in an earlier 
California case, Walker v. Haslett, 44 Cal. App. 
394, to the effect that damage need not be al­
leged; the practical effect of the holding of 
Downs v. Kroger, supra, is to abrogate that rule 
where as here there are other circumstances such 
as change in the character of the community, as 
will be dealt with later, and other circumstances 
negating damage to plaintiffs. In other words, 
where evidence is introduced showing lack of 
damage and absence of material benefit to com­
plainants the complainants must meet the issue 
by showing damage to themselves.

The foregoing condition is strengthened when 
the relief sought is in essence a mandatory in­
junction.

Vesper v. Forest Lawn Cemetery Assn., 
20 Cal. App. (2d) 157;
57 A. L. R. 336.



—24—

There can be no doubt that mandatory injunc­
tion is sought in this case for the purport of the 
decision if injunction is granted is to require ap­
pellants to act.

Feinberg v. One Doe Co., 14 Cal. (2d) 
24.

The judgment clearly is not supported by the 
evidence as to Lots 498 and 500 and the attempt 
to enjoin appellants’ use and occupancy “ of any 
other lot in Tract 7421” is beyond the jurisdic­
tion of the court since this is not a class or 
representative suit and since each lot in the 
Tract would be subject to an inquiry as to con­
ditions surrounding it.

Downs v. Kroeger, 200 Cal. 743;
Hansberry v. Lee, 311 U. S. 32.

Changes in the Character of a Neighborhood 
Will Stay Enforcement of a Restrictive 
Covenant.

The rule is well established in California that 
equity will not decree enforcement of a restrictive 
covenant against a particular lot in a case where 
by reason of a change in the character of the 
surrounding neighborhood, not resulting from a 
breach of the covenant, it would be oppressive 
and inequitable to give the restriction effect as 
where the enforcement of the covenant would



—25-

have no other result than to harass or injure 
the defendant without benefiting the plaintiff.

Hurd v. Albert, 214 Cal. 14;
Friesen v. City of Glendale, 209 Cal. 524;
Hess v. Country Club Park, 213 Cal. 613;
Downs v. Kroeger, 200 Cal. 743.

The rule as announced in Hurd v. Albert, 
supra, was enunciated as controlling in building 
restriction cases, and is the distillation of a long 
line of cases involving building restrictions. The 
same rule is applicable in cases involving racial 
restrictions.

Latteau v. Ellis, 122 Cal. App. 584;
Koehler v. Rowland, 275 Mo. 573;
Hundley v. Gorewits, ..... Fed. Rep.......

In Letteau v. Ellis, supra, the court discussed 
the question of the applicability of the rule in 
building restrictions to cases involving racial re­
strictions in these words:

“ But, argue respondents, the found 
changed conditions make it unjust and in­
equitable to enforce the conditions. There 
is much authority in support of respondents’ 
position. (Downs v. Kroeger, 200 Cal. 
743; Hess v. Country Club Park, 213 Cal. 
613; Hurd v. Albert, 214 Cal. 15.) These 
cases deal with the restrictive covenant and 
conditions limiting the use of real estate, the



- 2 6 -

particular restrictions being as to the 
maintenance of the property as residential. 
The holding in each case is that where there 
has been a change in the use to which prop­
erty in the neighborhood is being put, so 
that such property is no longer residential 
property, it would be unjust, oppressive and 
inequitable to give effect to such restric­
tions, if such change has resulted from 
causes other than their breach. A refer­
ence to these cases suffice. The subject is 
exhaustively covered and leaves no further 
ground of discussion.”

The court then brushes aside the argument 
that a so-called race restriction is not within 
either the spirit or the letter of the doctrine 
announced in building restriction cases. The 
rule as to change is also well illustrated in Hund­
ley v. Gorewits, supra, where the Court says:

“However, it is equally well settled that 
since the purpose of such restrictions is the 
mutual benefit of the burdened properties, 
when it is shown that the neighborhood in 
question has so changed in its character 
and environment and in the use to which 
the property therein may be put that the pur­
pose of the covenant cannot be carried out 
or that its enforcement shall substantially 
lessen the value of the property, or, in short, 
that injunctive relief would not give a bene­
fit by rather imposing a hardship, the rule 
will not be enforced.”



- 2 7 -

Counsel for respondent raised some question 
in the Court below as to applicability of the rule 
as to changes outside the tract as obtaining in 
building restriction cases to cases involving 
racial restriction. On principle it would seem 
that the rule should not vary and it is unthink­
able that the Courts will throw a greater safe­
guard around the right to establish a business 
than it will around the right of American citizens 
to occupy their own homes. So far as appel­
lants know, the question has never been directly 
adjudicated. However, it has been said:

“ It is true that where circumstances are 
changed owing to the material growth of a 
city or of the principal use of a whole 
neighborhood so that the purposes of a re­
striction in a conveyance no longer can be 
accomplished and it would be oppressive and 
inequitable to give effect to such restriction, 
the Courts will not enforce it.”

Koehler v. Rowland, 275 Mo. 573.

The Court’s finding that there had been in­
sufficient change in the character of the neighbor­
hood to stay the hand of equity in the case at bar 
is contrary to the evidence. There is no dispute 
that the Central Gardens Tract, a portion of 
which adjoins Tract 7421 on the south, was de­
veloped roughly simultaneously with Tract 7421 
although it was apparently laid out a year before 
Tract 7421. The record is replete with evidence



-28—

that Central Gardens Tract is populated almost 
exclusively by Negroes. Ninety-second street is 
the dividing line between Tract 7421 and the 
Central Gardens Tract. Houses on that street 
face each other. Homes occupied by appellants 
face homes occupied by Negroes in the Central 
Gardens Tract. The Pardee Tract adjoins 
Central Gardens Tract and a portion of Tract 
7421 on the east. Conditions of racial occu­
pancy in the Pardee Tract have changed ma­
terially since 1923 and even respondents’ wit­
nesses testified that the change continues. [Rep. 
Tr. p. 630, lines 10 to 12.] The evidence also 
shows that there has been a general northerly 
migration of Negroes toward Tract 7421 since 
the subdivision of Tract 7421, and that whereas 
Negroes in appreciable numbers lived in the 
vicinity of 105 th street when Tract 7421 was 
subdivided, they now live as far north as 89th 
street to the east of Tract 7421 and as far north 
as 92nd street directly south of Tract 7421. 
[Rep. Tr. p. 484, lines 10 to 13.] The increase 
of Negroes in the immediate vicinity has made 
for a consequent increase of Negroes using the 
public streets in and about Tract 7421. A 
market located in the center of Tract 7421 at­
tracts Negro customers. [Rep. Tr. p. 764, line



—29—

23.] A bus line routed through Tract 7421 car­
ries large numbers of Negro passengers. [Rep. 
Tr. p. 750, lines 4 to 7.]

Change is a relative term, and when change 
is asserted as bearing on the right to occupy a 
parcel of land, a court of equity should and must 
view the whole situation. Change sufficient to 
permit occupancy of a border line lot might fall 
far short of change required to permit occupancy 
of an interior lot in a tract. Furthermore, the 
use of a border line lot in violation of a restric­
tive covenant does not invalidate an entire re­
strictive covenant and equity may well find such 
change as will permit violative use of that border 
line lot, while leaving other lots bound as be­
fore.

Downs v. Kroeger, 200 Cal. 743.

It must be remembered that appellants herein 
did not cross-complain for relief invalidating the 
entire restrictive covenant; they sought and they 
seek only to be left undisturbed in use and oc­
cupancy of their border line lots, and certainly 
the weight of evidence as to change as to the 
character of the community in which those 
border line lots are located preponderates in ap­
pellants’ favor when the whole situation is taken



— 30—

into account. The whole situation is that appel­
lants seek to use and occupy lots located directly 
across a forty-foot street from other property 
used and occupied by Negroes; that prior to their 
purchase and use and occupancy the lots on their 
side of the street were largely vacant; the lots 
they use and occupy have little or no value to 
persons of the Caucasian race; the street on 
which the lots are located is continually used as 
a thoroughfare by Negroes; the plaintiffs failed 
to show any damage to themselves by appellants’ 
use and occupancy, and that no material benefit 
will flow to respondents from enforcement of 
the restrictive covenant. Occupied as it is on 
one side by Negroes and with lots on the other 
side largely vacant, 92nd street is essentially a 
“ Negro” street, not only along the border line 
of Tract 7421, but far to the east where it 
bisects the Pardee Tract.

The practical effect of depriving appellants of 
the right to use and occupy their lots would be 
to establish a virtually uninhabitable section of 
the city, a very undesirable result, especially in 
these times when there is already overcrowding 
and inadequacy of housing facilities.

Hundley v. Gorewits, supra.



- 3 1 -

Laches and Waiver Will Bar the Right to 
Enforce a Restrictive Agreement.

The principal factors in determining the ques­
tion of laches are acquiescence and lapse of time 
but other circumstances are also material such 
as that a change in the value or character of the 
property has taken place.

Chapman v. Bank of California, 97 Cal. 
155.

Respondents’ attorney stipulated that all of re­
spondents knew that appellants Loftons began 
occupancy of lot 498 in Tract 7421 at the time 
they began that occupancy in October, 1939. 
[Rep. Tr. p. 636, lines 2 to 7.] The records show 
that the first suit filed against appellants Loftons 
was commenced on June 24, 1940 [Clk. Tr. p. 10, 
lines 19, 20] a period of more than nine months 
after appellants Loftons began occupancy and 
that they had made certain improvements to 
their property before the first suit was filed. They 
had built a fence, constructed a concrete drive­
way, put in a lawn, and made certain additions 
to the porch. [Rep. Tr. p. 583, line 14; p. 584, 
lines 14, 20, 24; p. 585, lines 18, 22 to 25; p. 
586, lines 3 to 5, 22.] It will be observed that a 
greater part of these improvements were done in 
such view that respondents had means of knowl-



-3 2 -

edge, and under some circumstances means of 
knowledge may properly be accounted actual 
knowledge.

Tucker v. Beneke, 180 Cal. 588.

The second suit in which defendants Loftons 
appear herein as appellants was not commenced 
until August 7, 1941 [Clk. Tr. p. 42, lines 19, 
20], a period of one year and ten months after 
Loftons began occupancy. There is no hard and 
fast rule as to what lapse of time coupled with 
other factors will constitute laches. It has been 
held that inactivity for a period of six months 
after completion of work sought to be abated, the 
doctrine of laches is to be invoked.

Los Angeles Athletic Club v. Long Beach, 
128 Cal. App. 427.

In considering the applicability or inapplicabil­
ity of the doctrine of laches, one should consider 
all surrounding circumstances and in this case it 
is submitted that there is no sufficient reason to 
excuse inactivity on the part of respondents 
named in the first action or respondents named 
in the second action.

By way of excuse for their inactivity the trial 
court permitted respondents, over objection of 
appellants, to detail a long series of meetings held



—33—

by owners of lots within the Tract, a consequent 
consultation with various attorneys and the ad­
vice offered by those attorneys. [Rep. Tr. p. 
798, lines 8 to 10; p. 806, lines 12 to 16; p. 806, 
lines 23 to 26; p. 808, lines 19, 20.] The court 
also permitted introductions into evidence over 
appellants’ objections of letters from a resident 
of the Tract not a party to any of these actions, 
to Bank of America and a letter from an attorney 
representing the group of Tract owners and to 
the Bank of America, and replies to each of those 
letters. [Plaintiff’s Exhibits 45, 47, 48, 49.] 
Seasonable motions to strike all evidence relative 
to the activities of the group and the letters as 
admitted, were made by appellants. Appar­
ently respondents and their attorney were act­
ing on the belief that a suit involving restric­
tive covenant was a class or representative 
suit, and that an action against an alleged Fili­
pino violator allegedly living in the interior of 
the Tract was regarded as in essence an action 
against appellants. [Rep. Tr. p. 891, line 22, to 
p. 892, line 3. ] However, it has been held by the 
Supreme Court of the United States that such 
suits are not class or representative suits, and 
the only way that respondents could assert any 
rights as against these appellants was to name 
them parties defendant.



— 34—

“Where the covenant did not create joint 
obligation or liability, the several property 
owners did not constitute a single class, and 
there was a potential conflict of interest as 
between the parties to the suit and the per­
sons purported to be represented in that the 
latter might determine it to their interest to 
challenge rather than assert the restriction.”

Hansberry v. Lee, 311 U. S. 32.

The case just cited also involved attempts to 
enforce a racial restrictive covenant, and the 
holding was clear and plain that such suits are 
not class or representative suit, and that any ad­
judication binds only parties named as defendant 
or as plaintiffs.

In view of that holding it cannot be said in 
the case at bar that respondents relieved them­
selves of any laches by their own mistake of law 
that they could bind appellants’ property by pro­
ceeding against another alleged violator, and in 
view of the lapse of time between the knowledge 
of appellants Loftons’ occupancy and the com­
mencement of the suits it would seem that the 
appellants Loftons should be left undisturbed in 
their use and occupancy.

There is the additional question of waiver, 
especially as it relates to the second action filed 
in 1941, almost two years after knowledge of 
appellants Loftons’ occupancy. Waiver of the 
right to enforce a building restriction is recog-



—35—

nized as a valid defense to an action to enforce 
forfeiture or breach of a condition.

Los Angeles and Arizona Land Co. v. 
Marr, 187 Cal. 126.

Although it is apparent that respondents in 
the second action believe that they could relate 
their rights back to the filing of the first action, 
still in view of the holding in Hansberry v. Lee, 
supra, it is apparent that they could not do so, 
and if they could, their long silence must certainly 
amount to acquiescence in the occupancy of the 
appellants Loftons. In view of the law and the 
evidence as revealed by the record, it is submitted 
that the finding that there had been no laches or 
waiver is against the weight of the evidence in so 
far as appellants Loftons are concerned.

Appellants Laws purchased their parcel on con­
tract November, 1935 [Rep. Tr. p. 536, line 19] 
recorded deed to it August 29, 1940 [Defendant’s 
Exhibit A] and began building a home on it in 
June, 1941. [Rep. Tr. p. 540, lines 8 to 10.] 
Prior to the construction of the home, appel­
lant Henry Laws testified that he had made cer­
tain use of the parcel extending over a period of 
approximately seven years. [Rep. Tr. p. 564, 
lines 19, 20; p. 565, line 3; p. 566, line 6; p. 567, 
lines 4 and 8.] Respondents disputed that testi­
mony sharply, and it is conceded that appellant 
Laws was named defendant in a suit filed shortly 
after he began occupancy. All that has been said



— 36—

of the doctrine of laches and waiver as to ap­
pellants Loftons applies with equal force to appel­
lants Laws with exception of the fact that re­
spondents denied knowledge of his use. That 
denial must, of course, be viewed in light of the 
familiar rule that means of knowledge may in 
some instances be determined to be knowledge, 
and all that respondents could possibly deny was 
not use of the lot but knowledge of the use. 
Means of knowledge is equivalent to knowledge.

Tynan v. Kerns, 119 Cal. 447.

A Restriction of Use and Occupancy 
Unlimited as to Time Is Void.

Where no time is specified in said agreement 
(limiting racial occupancy) for its duration, it 
was void as being contrary to the provisions of 
Sections 711 and 715 of the Code of Civil Pro­
cedure, which prohibit an unlimited restraint on 
alienation.

Foster v. Stewart, 134 Cal. App. 482.

The holding in the cited case is plain and un­
equivocal and it is undisputed that so-called 
“building restrictions” [Plaintiffs Exhibit 2] in 
the case at bar are unlimited as to time. Foster 
v. Stewart, supra, was decided in 1933 and it is 
noteworthy that it has been cited as authority by 
text writers and in virtually in every digest issued 
since the decision. It has never been modified 
or limited or overruled by any later California



■37-

case, either by the Courts of Appeal or by the 
Supreme Court. It certainly is binding until some 
disposition is made of it, and it would seem to 
be controlling in the case at bar. Such criticism 
as has been leveled at Foster v. Stewart, supra, 
seems to be based upon the ground that prior 
decisions had held that restraints on use and 
occupancy are not restraints upon alienation, and 
hence not within the prohibition of Sections 711 
and 715 of the Code of Civil Procedure. That 
criticism begs the points upon which the ruling 
in Foster v. Stewart, supra, was made. A careful 
reading of the case will reveal the fact that the 
agreement in question had provided that “ the 
owners of the said several parcels of land will 
not permit the said property or any part thereof 
to be leased to or rented to nor shall the same 
even be used or occupied by any person” of the 
proscribed groups. In essence the court held that 
where the inducements for the signing of the 
covenant were not segregated and one of the in­
ducements was violative of the rule against re­
straints on alienation the whole covenant would 
be void. Viewed in that light, the decision in 
Foster v. Stewart, supra, is sound. The re­
strictive phrase in the case at bar is very similar 
to the covenant in the cited case, and reads' “that 
said premises shall not be leased, sold, or con­
veyed to or used or occupied by any person not 
of the Caucasian race.” [Clk. Tr. p. 32, lines 
6 to 8.]



- 3 8 -

All Necessary Parties to a Complete De­
termination of an Action Should Be Made 
Parties to the Action.

By seasonable motion [Clk. Tr. p. 50, line 1, 
to p. 51, line 19] appellants moved to require re­
spondents to name as parties plaintiff or defend­
ant each and every lot owner in Tract 7421 on the 
ground that each of said lot owners was an in­
dispensable to the complete determination of the 
controversy. The motion was denied. It is well 
settled that if the necessary parties to a full de­
termination of all issues are not before the court, 
it is the duty of the court on its own motion or 
on the motion of the parties to bring them before 
the court.

Title Guaranty v. Henry, 208 Cal. 185;
O’Connor v. Irvine, 74 Cal. 435;
Lake v. Dow, 207 Cal. 290.

The requirement that indispensable parties be 
before the court is mandatory.

Hartman Ranch Co. v. Associated Oil 
Co., 10 Cal. (2d) 232.

Where the record indispensably shows that a 
complete determination of the controversy cannot 
be had without the presence of other parties, 
such parties become necessary and indispensable,



— 39—

and Section 389 of the Code of Civil Procedure 
is mandatory, and the question then becomes one 
of jurisdiction in that the court may not proceed 
without bringing them in.

Ambassador Petroleum Co. v. Superior 
Court, 208 Cal. 667;

Bank of America v. Superior Court, 16 
Cal. (2d) 516.

If defendants actually before the court may be 
subjected to undue inconvenience or to danger of 
loss or to future litigation or more extensive lia­
bility by reason of the absence of necessary par­
ties, they may object to proceeding without them. 

20 Cal. Jur. 575, 576.

It has been held that cases involving attempts 
to enforce restrictive covenants such as this one 
are not class or representative suits, and that 
adjudication in any such case binds only those 
actually before the court.

Hansberry v. Lee, 311 U. S. 32.

In view of that holding, it is perfectly apparent 
that the decision in this case cannot bind other 
lot owners in Tract 7421. They can even if ap­
pellants finally prevail, file new actions to harass 
and vex appellants. The history of the case in



4 a

that respect is itself restrictive. The first case 
denominated, Burkhardt v. Lofton, filed in 1940, 
was still pending and undetermined when the sec­
ond case, now on appeal, denominated, Burkman 
v. Liddy, et al., was filed. Issues in the two cases 
were identical. Defendants were identical, yet 
appellants herein found themselves faced with 
having to defend a second law suit. Had other 
parties resident in the tract been so inclined, they 
could have filed a third law suit. While this ap­
peal is pending, another resident or group of resi­
dents may file other law suits; the number is 
limited only by number of residents in the tract. 
It is no answer to this state of affairs to say that 
this action is simply one to determine adverse 
claims as to plaintiffs and named defendants. 
Since it is an equity action, and since equity does 
not act piecemeal, the whole controversy should 
be determined at once, and since respondents 
herein initiated the suit, the court should have 
required them to complete the action by naming 
the necessary and indispensable parties to a com­
plete determination of the issue to the end that 
appellants may not be subjected to the danger of 
future litigation. It is respectfully submitted 
that the trial court erred in denying appellants' 
motion for adjoining of additional parties.



— 41—

An Injunction Should Not Issue to Re­
strain the Alleged Violation of Restric­
tions in a Tract Where the Restrictions 
Have Been Modified and the Original 
Grantees Took the Lots With Notice 
That the Grantor Reserved the Right to 
Modify the Restrictions.

(1) A Subsequent Grant Contrary to Re­
strictions by a Grantor W ith  Power to 
M odify Operates as a Revocation of 
the  Original Instrument.

As has been made plain from the statement 
of fact of this case, concerning which there is 
no dispute, the Bank of Italy closed the trust 
in December, 1930, and delivered the assets con­
sisting of unsold lots back to the settlors, the 
legal title having been in the Bank of Italy only 
as trustee. [Rep. Tr. p. 114, lines 3 to 9.] As 
to Lot 500 of said tract, the lot was conveyed 
back to the trustors, who in turn conveyed it to 
one of their trustors, Henry D. Gilbert, who 
conveyed the lot to Henry and Anna Laws in 
1940, appellants and owners of said Lot 500. 
No provision was inserted in the deeds by refer­
ence or otherwise, restricting the use or occu­
pancy because of race. [Plaintiffs’ Exhibits 38, 
39 and 40; Rep. Tr. p. 536, lines 3 to 19; p. 
786, line 9, to p. 787, line 26.]

At once it becomes apparent that when the 
bank conveyed the unsold lots back to the trustors 
without restrictions, trustors’ conduct amounted



-4 2 -

to a modification of the provisions concurred in 
by the trustors. It is a general rule of law that 
the parties to a contract have the right to change 
it at any time during its life.

Kennedy v. Lee, 147 Cal. 596;
Main St. etc. Railroad Co. v. Los Ange­

les Traction Co., 129 Cal. 301;
Civil Code, Section 1698.

A written agreement may be abrogated by an 
executed oral contract.

Twohey v. Realty Syndicate Co., 4 Cal. 
(2d) 397.

In the case of Bard v. Kent, 37 Cal. App. (2d) 
160, the court held:

“That an oral agreement between the 
parties providing for the payment of com­
mission to a real estate broker and the re­
conveyance to the trustor of the remaining 
lots of a subdivision trust was an executed 
oral agreement.”

It would seem, therefore, that in the case at 
bar the reconveyance to the trustors of the re­
maining lots of the subdivision trust was a suf­
ficient executed agreement modifying the restric­
tions set forth in Exhibit “A ” of plaintiffs’ com­
plaints. The actual and presumed intent to 
modify the restrictions is likewise indicated by 
the merger of the legal and equitable estates in



—43—

the trustors, I. B. Rubin, Henry D. Gilbert Solo­
mon Gross and Joseph Moent. By having a fee 
simple title to the unsold lots they held an estate 
inheritable and not subject to conditions or col­
lateral determination.

In re Walts, 197 Cal. 263.

Where the whole legal title as well as the 
equitable, unite in the same person, a merger 
takes place.

Boye v. Boerner, 12 Cal. App. (2d) 186.

We submit, that when plaintiffs or their prede­
cessors in interest purchased lots in the subject 
tract, they were put on notice that notwithstand­
ing the fact that the alleged restrictions were for 
the benefit of each owner of land in said tract, 
or any interest therein as a servitude of each and 
every lot or parcel of land in said tract as the 
dominant tenement or tenements, they took with 
notice as did the appellants herein, that the trus­
tees reserved the right to modify the restrictions, 
which was done in the case at bar. If, there­
fore, a modification of the restrictions took place 
as to the remaining unsold lots, then a modifica­
tion took place as to each and every lot or parcel 
of land in said tract, since the owners of said 
lots took the same with notice that the restric­
tions were covenants running with the land as to 
each and every lot in said tract and subject to a 
modification by the grantor, Bank of Italy. The



44

restrictions were for the benefit of the tract and 
not for the individual lots in said tract since any 
lot in said tract could have been sold free of 
any burdens of restriction by the trustees by vir­
tue of their power to modify the restrictions.

We cannot refrain from stating- at this point 
that the Bank of Italy as trustor, considered the 
restrictions at an end upon the closing of the 
trust, and the acceptance of the unsold lots free 
of any restrictions, covenants or conditions by 
the trustors. It is not a matter of conviction by 
a question long decided by our cases in Califor­
nia. In the case of Werner v. Graham, 181 Cal. 
174, the court held:

“That where the owner of a tract of land 
subdivided it into lots and make sales of the 
lots subject to certain building restrictions, 
and thereafter quit claimed to the owner of 
one of the lots any interest he had in it, the 
effect was to release the restrictive pro­
visions as to such lot so far as it was in the 
power of the original owner to do so.”

In addition to the ample reason already given, 
the provisions are in fact conditions not to be 
enforced by other lot owners under the deeds 
from the same grantor against the appellants, but 
are in favor of the grantor, since by assigns is 
meant the assignor of the reversion or right of 
re-entry.

Werner v. Graham, supra;
McBride v. Freeman, 191 Cal. 158.



—45—

(2 ) A n E qitable Servitude Is Not Created 
W here the U nderstanding of the Par­
ties Is Left to M ere Conjecture.

George Wixson and Rose Wixson, original 
grantees, and predecessors in interest of Lot 
498 of Tract 7421, now owned by Lee S. Lofton 
and Jennie P. Lofton, some of the appellants 
herein, by grant deed took title to said lot' 
February 24, 1928, subject to the provisions of 
the general restrictions on said tract. [Clk. Tr. 
p. 40, line 7; PL Ex. 32.] In 1939 and subse­
quent to the modification heretofore and here­
after mentioned, George Wixson and Rose Wix­
son conveyed title to said lot to Lee S. Lofton 
and Jennie P. Lofton, some of the appellants 
herein. [PI. Ex. No. 34; Rep. Tr. p. 200, 
line 25.]

Maude V. Darden, original grantee and 
predecessor in interest of Lot 500 of Tract 7421, 
now owned by Henry Laws, Anna Laws and 
Pauletta Laws, some of the appellants herein, by 
grant deed took title to said lot August 28, 1930, 
subject to the provisions of the general restric­
tions on said tract. [Clk. Tr. p. 88, line 23, to 
p. 89, line 2; PL Ex. 37.] That thereafter the 
said Maude V. Darden conveyed said lot to I. B. 
Reuben and others. [PL Ex. 38; Rep. Tr. p. 
203, line 10.] I. B. Reuben and others, are the 
original trustors who created the subdivision 
trust'herein. I. B. Reuben and others conveyed



4 6

the said Lot 500 of the tract to Henry D. Gilbert 
and Tillie Gilbert, as joint tenants. [Rep. Tr. 
p. 203, lines 18 to 24.] The said Henry D. 
Gilbert is one of the four original settlors of the 
trust. [PI. Ex. 39.] That thereafter in 1935 
and subsequent to the modification heretofore and 
hereafter mentioned, the said Henry D. Gilbert, 
settlor, and his wife conveyed the said lot to 
Henry Laws, Anna Laws and Pauletta Laws, 
some of the appellants herein. [PI. Ex. No. 40; 
Rep. Tr. p. 204, lines 3 to 9.]

The power of the grantor to revoke or modify 
an instrument where the power is reserved is set 
forth in Section 1229 of the California Civil 
Code, which provides:

“Where the power to revoke or modify an 
instrument affecting the title to, or the en­
joyment of, an estate in real property, is re­
served to the grantor, or given tq any other 
person, a subsequent grant of, or charge 
upon the estate, by the person having the 
power of revocation, in favor of an en­
cumbrancer for value, operates as a revoca­
tion of the original instrument to the extent 
of the power in favor of such purchaser or 
encumbrancer.”

In the leading case of Tenant v. John Tenant 
Memorial Home, 167 Cal. at page 575, the court 
said:

“ Each of these sections is based on the 
assumption that the reservation mentioned



— 47—

would be valid if made. Furthermore, they 
entirely remove the foundation upon which 
these reservations, when inserted in deeds of 
feoffment, were held to be void, that is to 
prevent the danger of secret transfers, to the 
detriment of the lord of the manor, or sub­
sequent purchasers or encumbrancers. There 
is now no lord of the manor, and the sec­
tions provide a complete protection to subse­
quent purchasers or encumbrancers for 
value. Furthermore, the effect of the de­
cisions of this court is that such reservations 
are valid.”

It is of course a rule well settled in California, 
that the deed is the final and exclusive memorial 
of the intention and right of the parties. (Mar­
tin v. Holm, 197 Cal. 733; Werner v. Graham, 
supra; Berryman v. Hotel Savoy Co., 160 Cal. 
559; McBride v. Freeman, supra.) Furthermore, 
any provision of an instrument creating or 
claimed to create such a servitude will be strictly 
construed, any doubt being resolved in favor of 
the free use of the land. ( Werner v. Graham, 
181 Cal. 174.)

Tt is the plaintiffs’ position and the court 
found, that the restrictions are imposed as a servi­
tude in favor of each and every lot in the tract. 
But the restrictions were placed on the tract 
pursuant to a general scheme or plan of building 
up the tract. The subdivision trustee or grantor 
reserved the right to modify the restrictions at



—48—

its discretion, and the plaintiffs had notice. When 
the grantor reconveyed the unsold lots without 
such restrictions and the trustors likewise sold 
the lots, one to one of the appellants in the case 
at bar, the right to enforce the restrictions was 
waived. (Brown v. Wrightman, 5 Cal. App. 
391; Hanna v. Rodeo-Vallejo Ferry Co., 89 Cal. 
App. 462; Los Angeles, etc. Land Co. v. Marr, 
187 Cal. 126; Wedum-Aldahl Co. v. Miller, 18 
Cal. App. (2d) 745.) It is submitted that the 
grantor and trustors not only modified the re­
strictions by their acts and conduct but aban­
doned the plan.

In the case of Wedum-Aldahl Co. v. Miller, 18 
Cal. App. (2d) the court said, at page 753:

“A grantor may waive the right to en­
force a restriction with respect to the use 
of land by his acts and conduct and thus 
estop himself from asserting its future 
validity. . . .”

“ In the case of restrictions imposed in 
pursuance of a general plan, that the 
originator of the plan, the common grantor, 
acquiesces in, that is, fails to take legal action 
to prevent, substantial infringements of the 
plan by some of his grantees, has been re­
garded as showing an abandonment by him 
of the plan, precluding him from subse­
quently enforcing the restriction as against 
others.”



—4 9 -

In the case at bar the grantor did nothing 
about the alleged violation of the restrictions by 
appellants or by the settlors of the trust, namely, 
I. B. Reuben, Henry Gilbert, Solomon Gross, and 
Joseph Moent, and reconveyed unsold lots back to 
the trustors, free of the restrictions. In other 
words, although the grantor by the terms of the 
Building Restrictions, imposed restrictions on 
some of the lots conveyed to some of the 
grantees, it was in no way bound by the re­
strictions.

We, therefore, respectfully submit that the 
court erred in finding that a servitude was im­
posed by the restrictions in favor of each and 
every lot and that the restrictions are for the 
benefit of each owner of land in the tract, for 
the reason that it affirmatively appears that the 
grantor on his part never did covenant to make 
similar conveyances to appellants’ grantors, or to 
plaintififs’ grantors, or to any of the other 
grantees or owners of lots in said Tract. No 
equitable easement was created.

In the leading case of Wing v. Forest Lawn 
Cemetery Association, 15 Cal. (2d) 472, the 
court said at page 480:

“Werner v. Graham, 181 Cal. 174, 183 
Pac. 945, has oft been cited as the leading 
case in this state defining the manner in 
which an equitable servitude may be estab­
lished. The case makes it requisite not



-50—

only that the deed contain (1) a proper 
expression of intent to create an equitable 
easement; that is, reference to a common 
plan of restriction or indication of an agree­
ment between the grantor and grantee that 
the conveyed lot be taken subject to some 
such plan, but also (2) ‘some designation or 
description of what is an essential factor, 
namely, the dominant tenement.’

“Measured by these standards it can 
scarcely be said that an equitable easement 
was created by plaintiff’s deed. Certainly, 
there is no description of a dominant tene­
ment which is to be benefited by the restric­
tion placed upon the property by the grantee. 
The importance of describing with certainty 
the property to be affected by a restrictive 
easement has been commented on by Pro­
fessor William Edward Burby in 10 So. 
Cal. Law Rev. 281, at Page 289, note 21, 
—thusly:

“ ‘The desirability of adhering to the rule 
announced in Wagner v. Hann [38 Cal. 
I l l ,  99 Am. Dec. 354] (cited in Werner 
v. Graham, supra), in connection with the 
creation of equitable easements, seems ap­
parent. There should he some written evi­
dence either in the form of a plat or other­
wise, delineating or pointing out the extent 
of the property affected by the restrictions. 
A more extensive area is usually involved 
in the case of equitable easements than is 
the case in the creation of legally enforce-



—51—

able easements. As a matter of policy, the 
understanding of the parties should be defi­
nite and clear, and should not be left to 
mere conjecture. Property described in the 
deed creating the equitable easements, and 
no other should be affected thereby’ ” (ital­
ics ours).

. . Although the grantor by the
terms of said deed imposed numerous re­
strictions on the lots conveyed to the 
grantee, it in nowise bound itself to impose 
restrictions on any which may have been 
retained by it, or to convey other property 
which it may have held subject to the same 
or similar restrictions or to do anything in 
favor of the property of the grantee.”

“A similar situation was presented in 
the case of Kuhn v. Saum, 316 Mo. 805 
[291 S. W. 104, at p. 105] wherein the 
Supreme Court of Missouri, said:

“  ‘ . . . And if the grantee could not
compel his grantor to observe the restric­
tions, he could not compel a subsequent 
grantee to do so. Beattie v. Howell, 98 
N. J. Eq. 163, 129 A. 822. . . .’

“ . . . Therefore, it cannot be said that
by the mere imposition of restrictions on 
the lands of the grantee, the grantor im­
pliedly placed the same restrictions on lands 
retained by it.”

“ It is true that the deed stated that the 
restrictions on lands of the grantee might



— 52—

be enforced against the land of the grantee 
by other owners of burial space in 
Memorial Park, but said statement did not 
have the effect of creating a reciprocal 
negative easement.”

“And further, at page 482, quoting from 
the case of Moe v. Gier, 116 Cal. App. 403. 
the Court said:

“ • • To create an equitable servi­
tude in the grant of lands in a large 
area it is essential that there must be a 
general scheme of restrictions sufficiently 
uniform in character to indicate unmis­
takably a designated and adopted plan 
throughout common to all purchasers of 
lots. The restrictions must not only appear 
in one deed, but in all the deeds, and must 
expressly declare that such restrictions are 
for the benefit of and run with all other 
lots in the designated area. In other words, 
the restrictions must be for the mutual 
benefit of all parcel owners and each lot 
imposed with a servitude for the benefit 
of each and every lot.’ ”

Appellants urge that no equitable servitude 
was created in the absence of a designation of 
a dominant tenement or tenements, hence there 
is no basis for holding that said restrictions 
are valid and enforceable and that appellants 
have violated any restrictions.



— 53—

A  Judicial Decree of a State Court Enforcing, 
Against Members of the Negro Race, Re­
strictive Residence Covenants, Offends 
the Equal Protection Clause of the Four­
teenth Amendment to the United States 
and Article One, Sections One and Twen­
ty-one of the Constitution of the State of 
California.

The Fourteenth Amendment of the United 
States Constitution, prohibits a state from de­
priving a person of property without due process 
of law. It would seem, therefore, that a decree 
by a state court upholding a provision of re­
strictions that certain premises are not to be 
sold, leased, used or occupied by persons not of 
the Caucasian race as valid and enforceable 
and permanently enjoining and restraining ap­
pellants who are not of the Caucasian race from 
occupying or using any portion of their prop­
erty in the premises, the state is lending its aid 
by the enforcement of such a provision depriv­
ing persons of their property.

(1 ) Judicial A ction Constitutes “State” 
A ction W it h in  the M eaning of the 
Fourteenth A mendment.

This seems to be definitely determined by 
Mooney v. Holohan (1934), 294 U. S. 103, 112. 
“That Amendment” (the Fourteenth), said the 
court, “governs any action of a state ‘whether 
through its legislature, through its courts, or 
through its executive or administrative offices



- 5 4 -

In the most recent consideration of the sub­
ject, the U. S. Supreme Court, in Bridges v. 
California, 86 L. Ed. (Adv. Op.) 179, Dec. 8, 
1941, nullified action by the Superior Court of 
the State of California on the ground that it 
abridged freedom of speech, and hence federal 
due process, under the Fourteenth Amendment. 
Such action by the court would have been im­
possible had the court not construed the word 
“state” in the Fourteenth Amendment as in­
cluding the Superior Court of this County as 
an agency of the state within the meaning of 
“state” in the Fourteenth Amendment.

(a) The Broadening Scope of the Fourteenth 
Amendment as to What Constitutes State 
Action.

The word “ state” in the Fourteenth Amend­
ment includes not only action by a state legis­
lature, but action by municipalities as well. Mu­
nicipalities are deemed to be agents of the state 
within the meaning of the Fourteenth Amend­
ment.

In Hague v. C. I. O., 307 U. S. 496; Lovell 
v. Griffin, 303 U. S. 444; and Schneider v. 
State, 308 U. S. 147, municipal ordinances were 
held void because of infringement of the right 
of freedom of speech; and thus were held to 
constitute state action. (In the last the above 
three cases the Los Angeles Handbill Ordinance



-55—

was held invalid.) Similarly in another Califor­
nia case, in Hamilton v. Regents, 293 U. S. 245, 
a resolution by the Board of Regents of the 
University of California was held to constitute 
state action. To the same effect is Missouri ex 
rel. Gaines v. Canada, 305 U. S. 337.

(b) The Broadening Protection of Negroes 
From Discrimination Because of Race or 
Color:

(i) Selection of Grand and Trial Juries. 
Norris v. Alabama, 294 U. S. 594; Pierre 
v. Loviisiana, 306 U. S. 354; Smith v. 
Texas, 311 U. S. 129.

(ii) The right to vote irrespective of 
color or race. Nixon v. Herndon, 273 U. 
S. 536, 541.

(iii) Attendance at a state university ir­
respective of race. Missouri ex rel. Gaines 
v. Canada, 305 U. S. 337.

(iv) Equality of accommodations in 
transportation. Mitchell v. U. S., 313 U. 
S. 80.

(v) Freedom from Peonage. Taylor v. 
Georgia. 86 L. Ed. (Ad. Op.) 371.

(vi) The Fourteenth Amendment was de­
signed particularly to protect the Negro 
from every form of discrimination because 
of color or race.



— 56—

The law is summarized in Buchanan v. 
Worley, 245 U. S. 60, 77, thus:

“ It (the Fourteenth Amendment) was 
designed to assure to the colored race the 
enjoyment of all the civil rights that under 
the law are enjoyed by white persons, and 
to give to that race the protection of the 
general government, in that enjoyment, 
wherever it should be denied by the states.

“ It ordains that no state shall deprive 
any person of life, liberty or property with­
out due process of law, or deny to any per­
son within its jurisdiction the equal protec­
tion of the laws.

“ What is this but declaring that the law 
in the states shall be the same for the black 
as for the white; and that all persons, 
whether colored or white, shall stand equal 
before the laws of the states, and, in re­
gard to the colored race, for whose pro­
tection the amendment was primarily de­
signed, that no discrimination shall be made 
against them by law because of their color.

“The Fourteenth Amendment makes no 
attempt to enumerate the rights it is de­
signed to protect. It speaks in general 
terms, and those are as comprehensive as 
possible. Its language is prohibitory; but 
every prohibition implies the existence of 
rights and immunities, prominent among 
which is an immunity from inequality of



—57-

legal protection, either for life, liberty or 
property. Any state action which denies 
this immunity to a colored man is in con­
flict with the Constitution.”

“Again this court in Ex parte Virgina. 
100 U. S. 339, 347, said:

“Whoever, by virtue of public position 
under a state government, deprives another 
of property, life or liberty without due 
process of law, or denies or takes away the 
equal protection of the law, violates the 
constitutional inhibition, and as he acts in 
the name of the state, and is clothed with 
the state’s power, his act is that of the 
state.”

Certainly a judicial decree which enforces dis­
crimination in the establishment of residence be­
cause of race constitutes action “by virtue of 
public position” , and hence the exercise of such 
judicial power constitutes the act of the state 
within the meaning and prohibitions of the 
comprehensive terms of the Fourteenth Amend­
ment. Los Angeles Investment Co. v. Garry 
(1919), 180 Cal. 680, and Corrigan v. Buckley 
(1925), 271 U. S. 323, do not foreclose the 
issue adversely to the defendants.

Thus, in Hansberry v. Lee, 311 U. S. 32, 85 
L. Ed. 22, the court by its failure to construe 
the claim of the denial of equal protection of 
the laws by restrictive residential covenants based



—58—

on race, indicated that the issue was still an 
open one so far as that court was concerned.

The court rules in favor of the Negroes on 
an issue involving lack of notice in a class suit.

The examination of the petitioner’s briefs, as 
outlined in the United States Supreme Court 
reports at page 35, and more fully in the Law­
yers Edition Reports at page 24, discloses that 
the precise contention made in the instant case 
was made in behalf of the Negroes, in that 
case. An examination of the decision of the 
court discloses that the court avoided passing 
upon that issue.

Had the court considered Buchanan v. Worley 
or Los Angeles Investment Company v. Garry, 
as conclusive, it would have said so.

Russell v. Wallace, 30 Fed. (2d) 981; Cornish 
v. O’Donoghue, 30 Fed. 298; and Grady v. 
Garland, 89 Fed. (2d) 817, all decisions by the 
District Court of Appeal of the District of 
Columbia are neither binding upon this court 
nor precisely in point; nor is the denial of 
certiorari in each of the cases by the United 
States Supreme Court.

The Supreme Court of the United States has 
declared on numerous occasions that the denial 
of certiorari is not an approval or an affirmance 
of an opinion; it simply is a determination by 
that court that it will not hear that case; it is



- 5 9 -

no indication that that court will not hear a 
similar case at another time.

Moreover, in each of the cases the question of 
“ equal protection of the laws” was not an issue; 
the District of Columbia not being a state, is 
not subject to the Fourteenth Amendment. The 
Fifth Amendment to the United States Consti­
tution which contains guarantees against federal 
action, does not contain an assurance of equal 
protection.

For a comprehensive discussion as to the dif­
ference between the guarantees of the due process 
clause and the equal protection clause, we refer 
to Truax v. Corrigan, 257 U. S. 312.

That the equal protection clause is designed 
particularly to enjoin any kind of state dis­
criminating because of race or color, is disclosed 
by the Truax case, in which the landmark de­
cision Yick Wo v. Hopkins, 118 U. S. 356, 369, 
is approved by the court, the court quoting:

“ These provisions (of the Fourteenth 
Amendment) are universal in their appli­
cation, to all persons within the territorial 
jurisdiction without regard to any differ­
ences of race, of color, or of nationality; 
and the equal protection of the laws is a 
pledge of the protection of equal laws.”

In the early case of Gandolfo v. Hartman, 
49 Fed. 181 (1892), restrictive covenants as



— 6 0 —

applied to the Chinese race were held to violate 
the Fourteenth Amendment, the court declaring:

“ It would be a very narrow construction 
of the constitutional amendment (Four­
teenth) in question and the decisions based 
on it, and a very restricted application of 
the broad principle upon which both the 
amendment and the decisions proceed, to 
hold that while state and municipal legis­
latures are forbidden to discriminate against 
the Chinese in their legislation, a citizen of 
the state may lawfully do so by contract, 
which the courts may enforce . . . Any
result inhibited by the Constitution can no 
more be accomplished by contracts of indi­
vidual citizens than by legislation, and the 
court should no more enforce the one than 
the other.”

(c) The Growing Judicial Emphasis Upon 
Personal Rights as Distinguished From 
Property or Contract Rights.

In recent years the Supreme Court has recog­
nized that constitutional values like all other 
values, when in conflict, must be reconciled 
where possible; in the process of reconciliation, 
each right must be allocated its proper place, 
some being recognized however, as superior to 
others.

Thus, in Minersville School District v. Gobitis, 
310 U. S. 586, 595, the court recognized that



— 61

there was a “hierarchy of legal values,” declar­
ing that, by way of example, “religious freedom 
was inferior to none” in that hierarchy. Re­
cently the highest court in the land has placed 
the great personal liberties, like freedom of 
speech and of the press, and freedom from dis­
crimination because of color or race, as first in 
that hierarchy. Justice Cardozo, speaking for 
the court in Palko v. Connecticut, 302 U. S. 219, 
223, enunciated the “rationalizing principle” 
which brings order out of what would otherwise 
appear to be judicial inconsistency and chaos.

Said Cardozo:
“ We reach a different plane of social 

and moral values when we pass to the 
privileges and immunities that have been 
taken over from the earlier articles of the 
Federal Bill of Rights, and brought within 
the Fourteenth Amendment by a process of 
absorption. These in their origin were ef­
fective against the Federal Government 
alone. If the Fourteenth Amendment has 
absorbed them, the process of absorption 
has had its source in the belief that neither 
liberty nor justice would exist if they were 
sacrificed. This is true, for illustration, 
of freedom of thought and speech. Of that 
freedom one may say that it is the matrix, 
the indispensable condition, of nearly ever}’ 
other form of freedom.”



—62-

That contract and property rights may, un­
der special circumstance, be required to take a 
place, somewhere else than at the head of the 
table, is seen from the recent United States Su­
preme Court decisions.

Thus, in West Coast Hotel Co. v. Parrish, 
300 U. S. 379, 391, in discussing freedom of 
contract the court, speaking Chief Justice 
Hughes, declared:

“What is this freedom? The Constitu­
tion does not speak of freedom of contract. 
It speaks of liberty and prohibits the 
deprivation of liberty without due process 
of law. In prohibiting that deprivation the 
Constitution does not recognize an absolute 
and uncontrollable liberty. Liberty in each 
of its phases has its history and connota­
tion. But the liberty safeguarded is liberty 
in a social organization which requires the 
protection of law against the evils which 
menace the health, safety, morals and wel­
fare of the people.

“ . . . The essential limitation of lib­
erty in general governs freedom of con­
tract in particular.”

The court then quotes from Allgeyer v. 
Louisiana, 165 U. S. 578:

“ . . . freedom of contract is a quali­
fied and not an absolute right. There is 
no absolute freedom to do as one wills, or 
to contract as one chooses.”



—63—

Once again in Home Building and Loan As­
sociation v. Blaisdell, 290 U. S. 398, 435, the 
court in upholding interference with enforce­
ment of mortgage foreclosure contracts, said:

“ The policy of protecting contracts 
against impairment pre-supposes the main­
tenance of a government by virtue of which 
contractual relations are worthwhile—a gov­
ernment which retains adequate authority to 
secure peace and good order of society.”

The court then quotes with approval (page 
443) Chief Justice Marshall:

“We must never forget that it is a con­
stitution we are expounding (McCulloch v; 
Maryland, 4 Wheat., 316, 407) a consti­
tution intended to endure for ages to come 
and consequently to be adapted to the 
various crises of human affairs.”

In other words, the authority of courts of 
equity to impinge upon the alleged absolute 
right of contract or of property, in the inter­
ests of the public good, is on a par with the same 
authority of other departments of the state, 
e. g., the legislatures, so to do.



-64

Enforcement of Restrictive Covenants Against 
the Negro Race, Because of Race or 
Color, Is Against the Present Public Pol­
icy of the Nation, and of This State.

(a) N ational U n it y  U rged in  the 
N ational D efense Program.

Our national policy with respect to racial dis­
crimination has been formally and officially ex­
pressed by the government in Executive Order 
No. 8802, dated June 25, 1941, which reads in 
part:

“Reaffirming Policy of Full Participation 
in the Defense Program by all persons, re­
gardless of Race, Creed, Color, or National 
Origin, and Directing Certain Action in 
Furtherance of said Policy.”

“Whereas, it is the policy of the United 
States to encourage full participation in 
the National Defense Program by all citi­
zens of the United States, regardless of 
race, creed, color or national origin, in the 
firm belief that the democratic way of life 
within the nation can be defended success­
fully only with the help and support of all 
groups within its border.”

Pursuant to that policy, in that Executive Or­
der, the President of the United States has de­
creed that there shall be no discrimination in 
employment in defense industries because of race, 
creed, color or national origin.



— 65—

This national policy, expressed by a Demo­
cratic President, has been best expounded by 
Wendell Willkie in his address in Los Angeles 
on July 20, 1942, protested against “ imperialism” 
at home expressed through racial discrimination 
as interfering with our war effort. He disclosed 
the need for military unity on the part of all of 
the peoples of the United Nations, irrespective 
of race or color, declaring, among other things:

. . But we are learning in this war
that it is not racial classifications nor 
ethnological considerations which bind men 
together. It is shared concepts and kindred 
objectives.

“Racial problems in the United States 
must take several steps toward solution as a 
result of the war, and our Negro citizens 
who make proportionate sacrifice and ef­
forts toward the winning of the war must 
win proportionate reward.”

(b) Restrictions Because of Race, Creed or 
Color A re Inconsistent W ith  the Pub­
lic Policy of T his State.

Although the legislature can authorize the 
segregation of the races, it has not done so. It 
has, however, by enactment compelled a reor­
ganization of the equality of citizens in the right 
to the peculiar services of agencies for the ac­
commodation and entertainment of the public.



-6 6 -

Section 51 of the Civil Code provides as 
follows:

“All citizens within the jurisdiction of 
the state are entitled to the full and equal 
accommodations, advantages, facilities and 
privileges of inns, restaurants, hotels, eat­
ing houses, places where ice-cream or soft 
drinks of any kind are sold for consumption 
on the premises, barber shops, bath houses, 
theatres, skating rinks, public accommoda­
tion or amusement, subject only to the con­
ditions and limitations established by law, 
and applicable alike to all citizens.”

Whoever makes any discrimination, distinction 
or restrictions on account of color or race in re­
spect to the admission of any citizen or his treat­
ment in any of the agencies enumerated in Sec­
tion 51 of the Civil Code is liable in damages 
to the party aggrieved in an amount not less 
than one hundred dollars. ( Civil Code, Sec­
tion 52.)

There is no doubt of the constitutionality of 
the provisions and of the sound public policy of 
such legislation.

Mandamus is the proper remedy too for un­
lawful discrimination of a municipality in re­
fusing to admit Negroes to a swimming pool



—67—

owned and operated by the municipality. (Stone 
v. Board of Directors of Pasadena, 47 Cal. App. 
(2d) 851.) To compel the trustees of a school 
district and a teacher to admit an Indian child 
as a pupil, Piper v. Big Pine School District, 
193 Cal. 664. To compel the admission of a 
Negro to a school, Ward v. Flood, 48 Cal. 36.

In Stone v. Board of Directors of Pasadena, 
supra, the court at page 856 stated the rule held 
in Kern v. Commissioners of City of Newton, 
147 Kan. 471:

“ . . . Deprivation of the privilege of
access to municipal recreation grounds es­
tablished or maintained at the general tax­
payers expense, on account of race or color, 
is legally and traditionally offensive to the 
history of this state, and although this 
court has repeatedly upheld statutes which 
sanction reasonable segregation of the racial 
stocks of this state, White and Colored, we 
have steadfastly held to our oft-repeated 
rule that the legislature alone can authorize 
such segregation; as in the many school 
cases cited above.”

Our state policy with respect to racial dis­
crimination is well expressed in the leading case 
of Sacramento O. etc. Home v. Chambers, 25 
Cal. App. 536, where the question involved



- 68-

Article I, Section 21 of our Constitution for a 
Writ of Mandamus to secure the payment of a 
claim for support of a minor orphan whose par­
ents were aliens and non-residents. Justice 
Burnett, speaking for the court, said at page 
541:

“ Mentally, morally and physically, no 
doubt, the sins and infirmities of the parents 
are often visited upon their descendant, but 
in the realm of civil and political rights, 
and privileges no such principle can be rec­
ognized or tolerated. To affirm the proposi­
tion contended for by respondents, that one 
citizen is, and another is not entitled to this 
privilege in consequence of the difference in 
citizenship and residence of the parents, is 
to deny all efficacy to the constitutional man­
date that privileges must be granted to 
all citizens upon all terms.”

(c) T he R ight to A cquire and Possess 
Property Is Guaranteed by O ur Ca li­
fornia Constitution .

Article I, Section 1 of the California Consti­
tution is as follows:

“All men are by nature free and inde­
pendent, and have certain inalienable rights, 
among which are those of enjoying and de­
fending life and liberty, acquiring, possess­
ing and protecting property; and pursuing 
and obtaining safety and happiness (Con­
stitution of 1849, Art. I, Sec. II). (Italics 
ours.)



- 6 9 -

Enforcement of restrictions as in the case at 
bar against appellants who are Negroes for 
private consideration is a denial to them of one 
of the primary objects of government, guaran­
teed by the constitution. A man is not to be de­
prived of his property or of his property rights 
for any private consideration. {Ex parte Loren- 
sen, 128 Cal. 431.)

The only immunities which can be justly 
claimed by one portion of society from another 
is that each individual is required to use his own 
as not to inflict injury upon his neighbor.

Moreover, the right to use and enjoy property 
by the owner is zealously guarded in this state. 
( Simpson v. City of Los Angeles, 4 Cal. (2d) 
60; 27 Cal. App. (2d) 293.)

Conclusion.
The strict letter of the law favors the position 

of appellants: the uncertainties of the covenant 
should be strictly construed against those seeking 
to enforce it with all doubt resolved in favor of 
free use of the land; the facile findings of the 
trial court that change in the character of the 
community was insufficient to stay the hand of 
equity and that respondents have not been guilty 
of laches in prosecution of their claim are un­
supported by the evidence; the refusal to follow 
the plain holding that an unlimited restraint on 
use and occupancy are void is contrary to law;



—70—

the court acted beyond its jurisdiction in refusal 
to require the presence of indispensable parties 
to a final termination of the controversy; the 
appellant Laws undoubtedly took title freed of 
any burden of the covenant and finally the power 
of a court of equity to exert what in the last 
analysis is the power of the state to accomplish 
residential segregation, when that power is de­
nied to the legislative and administrative 
branches of government, requires careful re­
examination in the light of modern conditions.

But it is well for all concerned to remember 
above all that this is a case in which the aid of 
equity is invoked. Respondents seek to oust 
appellants from their homes—homes they have 
purchased and built— solely on the accidental dif­
ference of color between American citizens. It 
is difficult to conceive a situation in which equity 
ought to tread more carefully. A fair consid­
eration of all the evidence demonstrates that 
appellants seek in good faith only to occupy 
property which has little or no value to those 
who seek to oust them and that appellant home 
owners seek to live in property long spurned as 
residential sites by their now unfriendly neigh­
bors, spurned perhaps because the homes face 
other homes occupied by other Negroes. If re­
spondents prevail, their victory is a barren one;



—71

they will suffer no damage if appellants remain 
in occupancy of lots 498 and 500; they will reap 
no benefits if appellants are dispossessed. The 
attitude they exhibit is well defined by Wendell 
Willkie in his best selling book, One World:

“The attitude of the white citizens of this 
country has undeniably had some of the un­
lovely and tragic characteristics of an alien 
imperialism— a smug racial superiority, a 
willing'ness to exploit an unprotected people.”

Never was there a more unfortunate time than 
this for the display of that attitude.

Census statistics, of which this court can take 
judicial notice, show that the Negro population 
of Los Angeles, city and county, has more than 
tripled since this covenant was conceived in 1923. 
That population increase has brought inevitable 
expansion of the Negro community; people must 
live somewhere and surely this court will not 
stake out an uninhabitable area in a rapidly 
growing city to gratify the whim of those who 
seek to enforce a barren right. This court can­
not shut its eyes to the broad question of public 
policy involved here nor by invoking over-techni­
cal rules of property and become party to the 
social ills that flow from overcrowding and lack 
of adequate housing facilities for those who seek



•72—

only to occupy their own homes. As the court 
well observes in Letteau v. Ellis, supra, at page 
589:

“ A principle of broad public policy has 
intervened to the extent that modern prog­
ress is deemed to necessitate a sacrifice of 
many former claimed individual rights. The 
only obstacle met has been the rule of prop­
erty or as termed the disinclination to dis­
turb vested property rights. To some ex­
tent this too has yielded in the sense that 
many rights formerly labeled as property 
rights by a process of academic relations 
are now considered merely personal and 
have been subjected to the common good.”

Respectfully submitted,
T homas L. Gr iffith , Jr., 

Loren M iller,

Attorneys for Appellants.





Received copy of the within for the judge who
tried the case this...............................day of May,
A. D. 1943.

J. F. M oroney, County Clerk. 

By......... -........ -.......................... ... , Deputy.

Service of the within and receipt of a copy
thereof is hereby admitted this...................day of
May, A. D. 1943.