Bates v. City of Little Rock Brief for Petitioners

    1ST THEiutpmtte (Emart of %  Intfri* i ’tatpfi
OCTO BER TERM , 1959

No. 41

DAISY BATES,

v.

CITY OF LITTLE BOCK,

BIRDIE WILLIAMS,

v.

Petitioner,

Respondent.

Petitioner,

CITY OF NORTH LITTLE ROCK,
Respondent.

O s W hit op Certiorari to the  Supreme Court of the 
S tate op A rkansas

BRIEF FOR PETITIONERS

R obert L. Carter,
20 West 40th Street,

New York, New York,

George H oward, J r.,
329^ Main Street,

Pine Bluff, Arkansas,
Attorneys for Petitioners.



I N D E X
PAGE

Jurisdiction ...............................................................  1
Question Presented ..................................................  2
Statement ..................................................................  2
The Ordinances Involved..........................    5
Summary of Argument.............................................  8
Argument .....................................................    11

I. N.A.A.C.P. v. Alabama Controls Decision Here 11
II. Unwarranted Interference With the Free Exer­

cise of Bights of Freedom of Speech and of 
Association Is Here Involved .......................  13
The Interference Effected Cannot Be Sus­
tained on the Ground That It Is a Part of 
a Long State Tradition....................................  13
The Occupation License Tax Ordinances In­
volved Here, With Their Manifold Amend­
ments, Have No Application to the Activities of 
a Non-Profit Membership Organization Whose 
Primary Objectives and Principal Activities 
Are Directed Towards the Improvement of the 
Status of Negro Citizens ...............................  15
Even Assuming Arguendo That These Ordi­
nances Could Be Validly Applied Here, the Re­
quirement That the Names of Members and 
Contributors Be Disclosed to City Officials and 
Be Subject to Public Inspection Bears No Rea­
sonable Relationship to A. Lawful and Effective 
Exercise of the Municipal Taxing Authority,
Which Is the Purported Purpose of These 
Regulations  .............................................  18

III. The Ordinances Are Actual And Effective 
Interferences With the Freedom of Associa­
tion and Not A Mere Abstract Impairment of
Constitutional Rights ...................................... 22

Conclusion ................................................................ 24



11

Table of Cases
PAGE

Aaron v. Cooper, 358 U. S. 1, 3 L. ed. (Adv. pp. 3, 16) 11, 23 
American Communications Association v. Douds, 339 

U. S. 382 ............................................................... 9,12
Barenblatt v. United States, 360 U. S. 109..............  9,12
Berry v. Hope, 205 Ark. 1105, 172 S. W. 2d 922 (1943) 15
Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 1957),

vacated and remanded, 354 U. S. 933 ...................... 23
Bryant v. Zimmerman, 278 U. S, 6 3 ...........................  9
DeJonge v. Oregon, 299 U. S. 353 ............................. 9
First Unitarian Church v. Los Angeles, 357 U. S.

545 .........................................................................  9,12
Ft. Smith v. Midland Valley R. Co., 156 Ark. 479,

246 S. W. 842 (1923) ............................................. 15
G-arner v. Board of Public Works, 341 U. S. 716__  12,14
Gibson v. Florida Legislative Investigation Commit­

tee, 360 U. S. 919 ..................................................  23
Grosjean v. American Press Co., 297 U. S. 233 .........  9, 21
Hughes v. Superior Court, 339 U. S. 460 ................  9,12
Murdock v. Pennsylvania, 319 U. S. 105..................9, 15, 21
N.A.A.C.P. v. Alabama, 357 U. S, 449 . . .2, 5, 8,10,11,12, 23 
N.A.A.C.P. v. Arkansas, es rel. Bruce Bennett, At­

torney General, 360 U. S, 909 ................................  23
N.A.A.C.P. v. Bennett, 360 U. S. 471 .......................  23
N.A.A.C.P. v. Committee on Offenses Against the

Administration of Justice, 358 U. S. 40 ............. 23
N.A.A.C.P. v. Harrison, 360 U. S. 467 .................... 23
N.A.A.C.P. v. Williams, 359 U. S. 550 .................... 23
Newark v. Edwards, 208 Ark. 276, 185 S. W. 2d 925 

(1945) 15



1U

PAGE

Scull v. Virginia, 359 U. S. 344................................  23
Shelton v. McKinley, — F. Supp. — (E. D. Ark. June

8, 1959) .......................................................    23
Speiser v. Randall, 357 IT. S. 513.............................9,12,17
Staub v. Baxley, 355 U. S. 313 ................................  11
Sweezy v. New Hampshire, 354 U. S. 234 .............. 9,10,11
Talley v. Blytheville, 204 Ark. 746, 164 S. W. 2d 900

(1942) ....................................................................  15
Texarkana v. James & Mayo Realty Co., 187 Ark. 764,

62 S. W. 2d 42 (1933) ............................................... 15
Texarkana v. Taylor, 185 Ark. 1145, 51 S. W. 2d 856

(1932) ....................................................................  15
Thomas y. Collins, 323 U. S. 516................................ 9
United States v. Rumely, 345 U. S. 4 1 .......................  9
Uphaus v. Wyman, 360 U. S. 7 2 ................................  9,12
Wieman v. Updegraff, 344 U. S. 148 .......................  9,12



IN' THE

(Emtrt nf tire United States
OCTO BER TER M , 1959 

No. 41

------------------------------------- 0 — ----------- -----------------
D asey B ates, et ah.,

v.
Petitioners,

City of L ittle B ock, et al.,
Respondents.

On W rit of Certiorari to the S upreme Court of the 
S tate of A rkansas

----- —--------- o-------------------

BRIEF FOR PETITIONERS

The opinion of the Supreme Court of the State of 
Arkansas (R. 66-77) is reported at 319 S. W. 2d 37. The 
opinion was from a divided court with Justices Holt and 
Smith dissenting.

Jurisdiction

The judgment of the court below was entered on Decem­
ber 22, 1958 (R. 77, 78). Rehearing was denied on January 
19, 1959, with the mandate being stayed pending the filing 
and disposition of a petition for writ of certiorari in this 
Court (R. 78, 79). The petition was filed on March 13,1959, 
and was granted on May 18,1959 (R. 80). The jurisdiction 
of this Court rests on Title 28, United States Code, Section 
1257(3).



2

Question Presented

Whether Ordinance No. 10,638, an amendment to Ordi­
nance No. 7444 governing the payment of an occupation 
license tax levied for the privilege of doing business within 
the city of Little Bock, and Ordinance No. 2683, an amend­
ment to Ordinance No. 1786 governing the payment of an 
occupation license tax levied for the privilege of doing 
business within the city of North Little Bock, under which 
petitioners were tried and convicted because of their re­
fusal to supply to city officials the names and addresses of 
the members and contributors of the National Association 
for the Advancement of Colored People in the munici­
palities involved, are inconsistent with the guaranty of 
freedom of association and of privacy in associational 
relationships secured against state encroachment by the 
Fourteenth Amendment to the Constitution of the United 
States?

Statement

The National Association for the Advancement of 
Colored People, as this Court knows from prior litigation, 
consists of a national organization, which is incorporated 
under the laws of the State of New York as a non-profit 
membership corporation, and local affiliates, which are 
independant unincorporated associations with membership 
in the local affiliates being equivalent to membership in the 
national organization. See N.A.A.C.P. v. Alabama, 357 
U. S. 449.

Petitioners Bates and Williams are members of the local 
affiliate of the National Association for the Advancement 
of Colored People in Little Bock and in North Little Bock, 
respectively. Each is custodian of the membership list of 
the local organization to which she belongs, and petitioner 
Williams is President of the N.A.A.C.P. Branch in North 
Little Bock.



3

Ordinance No. 10,638 of Little Rock and Ordinance No. 
2638 of North Little Rock are identical. They are the 
progency of the Attorney General of Arkansas. They are 
popularly known as the “ Bennett” ordinances and are so 
designated in the opinion of the court below (R. 66). Each 
ordinance requires that any organization operating within 
the municipality in question must supply to the City Clerk 
upon request and within a specified time (1) the official 
name of the organization; (2) its headquarters or regular 
meeting place; (3) the names of the officers and their 
salaries; (4) the purpose of the organization; (5) a state­
ment as to dues, assessments and contributions paid, by 
whom and when paid, together with a statement reflecting 
the disposition of the funds and the net income; (6) and an 
affidavit indicating whether the organization is subor­
dinate to a parent organization and the latter’s name. The 
ordinances specifically provide that all information fur­
nished shall be public and subject to inspection during rea­
sonable office hours (R. 29-31, 37-38).

A demand was made on petitioner Bates for the afore­
said information in respect to the N.A.A.C.P. in Little Rock, 
and on petitioner Williams in respect to the N.A.A.C.P. in 
North Little Rock. In each instance, substantially all the 
information was furnished except the names of members 
and contributors.

The Little Rock and the North Little Rock Branches of 
the N.A.A.C.P. advised the city council by letter, through 
their respective Presidents, of their official name, their place 
of meetings and the names of their officers, all of whom 
are unsalaried. The Articles of Incorporation of the parent 
organization were quoted as follows:

. . . voluntarily to promote equality of rights 
and eradicate caste or race prejudice among the 
citizens of the United States; to advance the interest 
of colored citizens; to secure for them impartial suf­
frage; and to increase their opportunities for secur-



4

ing justice in the courts, education for their children, 
employment according to their ability, and complete 
equality before the law. To ascertain and publish 
all facts hearing upon these subjects and to take any 
lawful action thereon; together with any kind and 
all things which may lawfully be done by a member­
ship corporation organized under the laws of the 
State of New York for the further advancement of 
these objects.

for a description of aims and purposes. It was stated that 
each local affiliate had been chartered and organized in 
accord with those purposes and was seeking to effectuate 
the stated objectives within its community. The specific 
information requested as to finances was not given, but a 
statement showing total receipts, total expenditures and. 
the balance on hand was furnished. The requisite affidavit, 
to the effect that the organization was an affiliate of the 
National Association for the Advancement of Colored 
People, a New York corporation, was filed.

The anti-N.A.A.C.P. climate in the State, a belief that 
public identification of members and contributors might 
subject them to harassment, economic reprisals and bodily 
harm, and a claim of a constitutional privilege under both 
the federal and state Constitutions were cited as the bases 
for the refusal to disclose the names and addresses of 
members and contributors and any information leading to 
their ascertainment. Copies of the Constitution of the 
national organization and of the Constitution and By-laws 
for Branches were enclosed (R. 25-28, 40-43).

Each petitioner was tried and convicted for a violation 
of the ordinance in question in the Municipal Court of her 
respective community. Mrs. Bates was fined $100.00 and 
Mrs. Williams was fined $25.00. On appeal to the Circuit 
Court of Pulaski County each was tried de novo, again 
convicted and each fined $25.00 (R. 25, 65). The ordinances 
were held valid, and claimed infringements of constitu­
tional rights were held to be without substance (R. 25, 65).



5

The cases were consolidated in the Supreme Court of 
Arkansas, and the sentences and convictions upheld by a 
divided court (R. 77). In its opinion the court below sought 
to distinguish the instant litigation from this Court’s holding 
in N.A.A.C.P. v. Alabama, 357 IT. S. 449. It concluded that 
here the intrusion on freedom of speech and association 
was a “ mere incident to a permissible legal result” (R. 75). 
As such, the ordinances were held to impinge in no way 
upon the safeguards provided under the due process clause 
of the Fourteenth Amendment to the Constitution of the 
United States.

The Ordinances Involved

Arkansas Statutes, 1947, Section 19-4601 authorizes 
municipalities to levy a tax on any person, firm, individual 
or corporation engaging in any “ trade, business, pro­
fession or calling” within their territorial limits. The 
pertinent statutory provisions follow:

Hereafter any city council, board of commis­
sioners of board of aldermen . . . shall have the 
power to enact . . .  an ordinance . . . requiring any 
person, firm, individual or corporation who shall 
engage in, carry on, or follow any trade, business, 
profession, vocation or calling, within the corporate 
limits of such city . . .  to take out and procure a 
license therefor and pay into the city or town treas­
ury before receiving same, such a sum or amount 
of money as may be specified by such ordinance or 
ordinances for such license and privilege. The city 
council. . . shall have the right to classify and define 
any trade, business, profession, vocation, or calling 
and to fix the sum or amount any person, firm, 
individual or corporation shall pay for such license 
required for the privilege of engaging in, carrying 
on, or following, any trade, business, vocation, or 
calling, based on the amount of goods, wares or 
merchandise carried in stock in any business, or 
the character and kind of trade, business, profession,



6

vocation, or calling, but no classification shall be 
based upon earnings or income and shall have the 
full power to punish for violation of such ordi­
nance . . .

Pursuant to these provisions, the city of Little Rock 
enacted Ordinance No. 7444 (R. 29) and North Little Rock 
enacted Ordinance No. 1786 (R. 37) which established an 
annual occupation license tax on various businesses, occu­
pations and professions.

Ordinance No. 10,638 of Little Rock and Ordinance No. 
2683 of North Little Rock are the latest in a long series 
of amendments to these basic privilege license tax enact­
ments. Ordinance No. 10,638 enacted by the City of Little 
Rock, which is identical in terms to Ordinance No. 2683, 
provides as follows:

W hereas, it has been found and determined that 
certain organizations within the City of Little Rock, 
Arkansas, have been claiming immunity from the 
terms of Ordinance No. 7444, as amended, govern­
ing the payment of occupation licenses levied for 
the privilege of doing business within the city, upon 
the premise that such organizations are benevolent, 
charitable, mutual benefit, fraternal or non-profit, 
and

W hereas, many such organizations claiming the 
occupation license exemption are mere subterfuges 
for businesses being operated for profit which are 
subject to the occupation license ordinance; Now, 
T herefore, B e I t Ordained by the City Council oe 
the City oe L ittle R ock, A rkansas :

Section 1. The word “ organization” as used 
herein means any group of individuals, whether in­
corporated or unincorporated.

S ection 2. Any organization operating or func­
tioning within the City of Little Rock, including but 
not limited to civic, fraternal, political, mutual bene­
fit, legal, medical, [fol. 59] trade, or other organ­
ization, upon the request of the Mayor, Alderman,



7

Member of the Board of Directors, City Clerk, City 
Collector, or City Attorney, shall list with the City 
Clerk the following information within 15 days after 
such request is submitted:

A. The official name of the organization.
B. The office, place of business, headquarters or 

usual meeting place of such organization.
C. The officers, agents, servants, employees or 

representatives of such organization, and the sal­
aries paid to them.

D. The purpose or purposes of such organiza­
tion.

E. _ A financial statement of such organization, 
including dues, fees, assessments and/or contribu­
tions paid, by whom paid, and the date thereof, 
together with the statement reflecting the disposi­
tion of such sums, to whom and when paid, to­
gether with the total net income of such organ­
ization.

F. An affidavit by the president or other offi­
ciating officer of the organization stating whether 
the organization is subordinate to the parent or­
ganization, and if so, the name of the parent organ­
ization.

S ection 3. This ordinance shall be cumulative 
to other ordinances heretofore passed by the City 
with reference to occupation licenses and the col­
lection thereof.
[fol. 60] S ection 4. All information obtained pur­
suant to this ordinance shall be deemed public and 
subject to the inspection of any interested party at 
all reasonable business hours.

Section 5. Any section or part of this ordinance 
declared to be unconstitutional or void shall not 
affect the remaining sections of the ordinance, and 
to this end the sections or subsections hereof are 
declared to be severable.



8

S ection 6. Any person or organization who 
shall violate the provisions of this ordinance shall 
be deemed guilty of a misdemeanor, and upon con­
viction thereof shall he fined in a sum not less than 
$50.00 nor more than $250.00, and each day of viola­
tion shall constitute a separate offense. The City 
Council in the enforcement of this ordinance shall 
have the power to see injunctive relief.

Section 7. It has been found and determined 
by the City Council that certain organizations op­
erating within the City of Little Bock have failed 
to comply with the terms of Ordinance No. 7444, as 
amended, governing the payment of occupation li­
censes, and as a result thereof, needed revenue is 
being lost, and the enactment of this ordinance will 
provide for more efficient administration of such 
ordi- [fol. 61] nance. Therefore, an emergency is 
declared to exist, and this ordinance being necessary 
for the preservation of the public peace, "health, and 
safety, shall take effect and he in force from and 
after its passage and approval.

Summary of Argument

Petitioners have been convicted and fined for violating 
the municipal ordinances here involved, because of their 
refusal to furnish to city officials the names and addresses 
of N.A.A.C.P. members and contributors. Petitioners con­
tend that these ordinances are invalid under the rationale 
of N.A.A.C.P. v. Alabama, 357 TJ. S. 449. Here, as there, 
the enforced public identification of those associated to­
gether in the N.A.A.C.P. constitutes an effective restraint 
upon the free exercise of constitutional guarantees of 
freedom of speech and association and is an unwarranted in­
fringement upon the privacy of associational relationships. 
The corrosive and stifling effect on freedom and privacy 
which these ordinances accomplish cannot be justified under 
any yardstick established in the decisions of this Court.



9

See Sweesy v. New Hampshire, 354 IT. S. 234; United States 
v. Buniely, 345 IT. S. 41; Wieman v. Updegraff, 344 IT. S. 
148; Thomas v. Collins, 323 U. S. 516; Murdoch v. Pennsyl­
vania, 319 U. S. 105; DeJonge v. Oregon, 299 IT. S. 353; 
Grosjean v. American Press Co., 297 IT. S. 233.

No secret oath-bound organization committed to law­
lessness is here involved, Bryant v. Zimmerman, 278 U. S. 
63; nor are rights of freedom of speech and association 
being asserted to accomplish an unlawful purpose. Hughes 
v. Superior Court, 339 IT. S. 460. There is, moreover, absent 
that problem of suspected subversion which has led this 
Court to sustain inroads upon this area of personal liberty, 
as a proper exercise of governmental right of self-preserva­
tion, which, under other circumstances, would not be counte­
nanced. See Uphaus v. Wyman, 360 IT. S. 72; Baren- 
blatt v. United States, 360 U. S. 109. Nor is the situation 
here presented one in which the infringement complained 
of is a necessary incident to the valid exercise of govern­
mental authority in another area. See, e.g., American Com­
munications Association v. Douds, 339 U. S. 382. Cf. Speiser 
v. Randall, 357 U. S. 513; First Unitarian Church v. Los 
Angeles, 357 IT. S. 545. Indeed, there is no rationale which 
can supply that compelling justification essential to the 
validity of the provisions at issue. See Sweesy v. New 
Hampshire, supra.

The ordinances are amendments to municipal privilege 
license tax laws pursuant to which various commercial, 
business and professional occupations are required to pay 
a fee for the privilege of doing business. This authority 
relates solely to commercial enterprises. There was no 
showing below7 that the N.A.A.C.P. was engaged in any of 
the occupational activities taxed, or that any demand had 
been made upon the organization or its officers for the 
payment of a tax. The record does reveal that the ordi­
nances were enacted to find out what was going on in the 
N.A.A.C.P., but mere curiosity would not seem to be suffi­
cient warrant for curbing freedom of speech and associa-



10
tion or for invading that privacy of association which the 
federal Constitution secures. In fact, there is no substan­
tial relationship between the disclosures here sought and 
effective exercise of the municipal taxing authority which 
is the purported reason for the enactment of both ordi­
nances.

The N.A.A.C.P. is a dissident organization, unpopu­
lar in many areas in the United States, because its funda­
mental purposes and aims are to eliminate enforced racial 
segregation and to secure equal citizenship status for 
Negroes. Movement towards those objectives has effected 
a major upheaval in the complex of Negro-white relations 
throughout the United States. Especially in the South 
today is there fierce resistance to the changes in ideas and 
customs which eradiction of racial discrimination neces­
sitates. The N.A.A.C.P. is regarded as the major 
enemy by those who would maintain the status quo in race 
relations in the South, and its destruction is their primary 
target. It was in this climate that these regulations were 
enacted and petitioners convicted. The basic reason for 
enacting and enforcing these ordinances in Little Rock 
and North Little Rock was to frighten, intimidate and 
coerce those who belong to the N.A.A.C.P., or who believe 
in its objectives, into abandoning their ideas of equality 
and activities in furtherance thereof—in short, to stifle 
freedom of speech and association. The restrictive and 
deadening effect on the free exercise of these freedoms 
is clearly demonstrated in this record, without manifesta­
tions of any compelling subordinating state interest, which 
might conceivably justify this result. The ordinances 
in question and petitioners’ convictions and fines there­
under, therefore, cannot he squared with the principles 
enunciated in the decisions of this Court. See N.A.A.C.P. 
v. Alabama, supra; Sweesy v. New Hampshire, supra.



11

ARGUMENT

I

N .A .A .C .P . v. Alabam a Controls Decision Here.

The present litigation differs from N.A.A.C.P. v. 
Alabama, 357 U. S. 449, only in minor and insignificant 
particulars. In that case, a contempt adjudication based 
upon a refusal to comply with a court order alleged to be 
an invasion of freedom of speech and association was 
involved. Here, convictions and sentences for refusal to 
comply with the terms of municipal ordinances allegedly 
in violation of those constitutional guarantees are before 
this Court. In both instances, the interference complained 
of concern the freedom and privacy of association^ rela­
tionships of members and contributors of the National 
Association for the Advancement of Colored People. Un­
questionably, the constitutional proscription against state 
encroachment on freedom of association is not affected 
merely by the form in which the state’s prohibited action 
is taken. See Aaron v. Cooper, 358 U. S. 1, 3 L. ed. (Adv. 
p. 3, 16). In the Alabama case, the constitutional claim 
was made by the organization on behalf of its members 
and here, by custodians of the membership list as a defense 
to criminal prosecutions, both on their own behalf and on 
behalf of N.A.A.C.P. members and contributors.

Whatever question there may be concerning application 
of the constitutional guarantees of freedom of speech and 
of association to a particular set of facts and circumstances 
in a specific case, there is no doubt that the Fourteenth 
Amendment prohibits governmental interference with these 
freedoms and with individual privacy in their exercise, 
absent a showing of some overriding and compelling state 
justification for the intrusion. See Sweezy v. New Hamp­
shire, 354 U. S. 234; Staub v. Baxley, 355 U. S. 313;



12

N.A.A.C.P. v. Alabama, supra; Wieman v. Updegraff, 344 
U. S. 148.

To give effect to the claimed right of freedom of speech 
and of association raised here would not license a violation 
of some important state policy, protecting or fostering 
a legitimate societal interest. Cf. Hughes v. Superior Court, 
339 U. 8. 460. The rationale which has sustained the 
right of governments to take measures to meet problems 
of subversion, see Uphaus v. Wyman, 360 U. S. 72; Ameri­
can Communications Association v. Douds, 339 U. S. 382; 
Garner v. Board of Public Works, 341 U. S. 716, "which 
in a different context [would raise] constitutional issues of 
the gravest character,” Barenblatt v. United States, 360 
U. 8. 109, 128, has no present application. Nor is this a 
valid exercise of state taxing authority in which encroach­
ment on freedom of speech and of association is a necessary 
and unavoidable incident. Cf. Speiser v. Randall, 357 U. S. 
513; First Unitarian Church v. Los Angeles, 357 U. S. 545. 
On the contrary, these ordinances and the resultant con­
victions now before this Court are simply attempts on the 
part of city officials to liquidate the pressure for equal 
citizenship rights for Negroes by seeking to resist and turn 
back the momentum of our history, with its ever present 
antipathy to racial discrimination, albeit often ambivalent 
and tenuous, by suppressing the N.A.A.C.P. through the 
exposure of its members and contributors to the hostility 
of an adverse climate of public opinion.

The record fails to disclose any subordinating state 
interest which would justify the interference and restric­
tion which the ordinances effect. It is respectfully sub­
mitted, therefore, that under the yardstick applied in the 
decisions of this Court, these regulations are unconstitu­
tional intrusions on freedom of association, and the con­
victions thereunder must be set aside. See N.A.A.C.P. v. 
Alabama, supra.



13

I 1

Unwarranted Interference With the Free Exercise 
of Rights of Freedom of Speech and of Association
Is H ere Involved.

T h e In te rfe ren ce  E ffected  C annot Be S u sta in ed  on th e  
G round  T h a t It is a  P a r t  o f a  Long S ta te  T rad itio n .

The Supreme Court of Arkansas seeks to justify these 
provisions on the ground that the enforced disclosure of 
organizational members is a requirement of long standing 
in the statutory law of the State. Section 64-1302, Arkansas 
Statutes, 1947, is cited to support this statement. That 
statute provides:

Any association of persons desirous of becoming- 
incorporated, under the provisions of this act 
[§§ 64-1301-64-1308] shall file with the Clerk of the 
Circuit Court and Recorder for the proper county 
a copy of their constitution or articles of association, 
and a, list of all the members, together with a petition 
to said court for a certificate of incorporation under 
the provisions of this act. (Emphasis added.)

In short, where a group of persons desires to incorpo­
rate, it may do so provided certain information is given 
to state officials, including a list of members of the group.

Section 64-1306, Arkansas Statutes, 1947, sets out 
specific advantages which corporate status may bring. It 
provides:

Any such corporation shall have power to borrow 
or raise money necessary or convenient to the ac­
complishment of the purposes of the association or 
corporation and, from time to time, without limita­
tion upon amount, draw, make, accept, indorse, ex­
ecute, and issue promissory notes, drafts, bills of 
exchange, warrants, bonds, debentures and other 
negotiable and non-negotiable instruments and evi­
dences of indebtedness and to secure the payment



14

of any thereof and the interest thereon hy mort­
gage, pledge, conveyance or assignment in trust of 
the whole or any part of the property of the asso­
ciation or corporation whether at the time owned or 
thereafter acquired; to sell, pledge, or otherwise 
dispose of bonds or other obligations of the asso­
ciation or corporation for its corporate purposes; 
to cooperate with any government agency or agencies 
whether national, state, county or municipal, or 
with any business or private agency whatsoever in 
carrying out the purposes herein contemplated; to 
acquire by gift or in any other manner and to sell, 
lease, mortgage, pledge, assign, transfer or other­
wise dispose of lands or real property . . .

Such corporation and association shall have the 
capacity of suing and being sued and is authorized 
to do any and all things necessary, convenient, useful 
or incidental to the attainment of its purposes as 
fully and to the same extent as natural persons 
lawfully might or could do, as principals, agents, 
contractors, trustees or otherwise.

But the foregoing statutes have no bearing on the instant 
litigation. The National Association for the Advancement 
of Colored People, the parent organization, is a New York 
corporation. Neither the Little Rock nor the North Little 
Rock N.A.A.C.P. Branches, which are unincorporated as­
sociations, have sought to avail themselves of the privi­
leges afforded by Sections 64-1302 and 64-1306. These 
statutes require that an organization disclose its members, 
if it desires to obtain those advantages which corporate 
status affords. In exchange for these special privileges, 
the relinquishment of the privacy of associational rela­
tionships is exacted. But Cf. Mr. Justice Frankfurter’s 
opinion in Garner v. Board of Public Works, supra at 724. 
Disclosure is not compelled, it is purely optional.1 Thus, 
petitioners submit, these statutory provisions furnish no 
support for the restrictions here involved.

1 Moreover, it should be added, Section 64-1302 does not require 
the filing with the Secretary of State a current list of members, but 
only a list of those members at the time the incorporation is sought.



15

T h e  O ccu p atio n  L icense T ax  O rd in an ces Involved  
H ere , W ith  T h e ir M anifo ld  A m endm en ts, H ave No 
A p p lica tio n  to  th e  A ctiv ities of a  N on-Profit M em ­
b ersh ip  O rg an iza tio n  W hose P rim ary  O bjec tives 
an d  P rin c ip a l A ctiv ities  A re  D irec ted  T o w ard s 
th e  Im provem en t o f th e  S ta tu s  o f N egro C itizens.

Section. 19-4601, Arkanas Statutes, 1947, and the oc­
cupation license tax ordinances enacted thereunder, apply 
to commercial enterprises. See Texarkana v. Taylor, 185 
Ark. 1145, 51 S. W. 2d 856 (1932) (involving a tax on occu­
pations, including attorneys-at-law); Texarkana v. James 
S  Mayo Realty Co., 187 Ark. 764, 62 S. W. 2d 42 (1933) 
(involving a broker’s tax on persons engaged in the buying 
and selling of real estate); Newark v. Edwards, 208 Ark. 
276, 185 S. W. 2d 925 (1945) (involving a tax on meat mar­
kets) ; Talley v. Blytheville, 204 Ark. 746, 164 S. W. 2d 900 
(1942) (involving a tax on taxicab service).

A tax on interstate commerce was held invalid. See 
Ft. Smith v. Midland Valley R. Co., 156 Ark. 479, 246 S. W. 
842 (1923). And in Berry v. Hope, 205 Ark. 1105,172 S. W. 
2d 922 (1943), an ordinance, requiring a license for the 
house to house selling “ of goods, wares and merchandise 
of any description,” as applied to the sale of religious 
tracts by members of the Jehovah Witnesses, was held to 
constitute an unlawful invasion of guarantees of freedom 
of speech and of religion in accord with this Court’s decision 
in Murdock v. Pennsylvania, 319 U. S. 105. Thus, Arkansas 
decisional law expressly recognizes that the municipal tax­
ing power authorized by Section 19-4601, Arkansas Statutes, 
1947, is subject to limitations imposed by the provisions 
of the federal Constitution.

Ordinance No. 7444 of Little Eock, as originally en­
acted, applied to a variety of commercial enterprises rang­
ing from advertising, abstract and title companies, billiard 
and pool miniature companies, cobblers, florists, mattress



16

manufacturers to vending machine scales (Tr. 65).2 It 
was first amended by Ordinance No. 7469 (Tr. 103, 
106) which sought to clarify the various classifications of 
the businesses affected. Ordinance No. 7475, the second 
amendment, levied a tax on cleaning and pressing estab­
lishments (Tr. 112); Ordinance No. 7483 affected U-Drive 
cars (Tr. 114) ; Ordinance No. 7504, plumbing and gas 
fittings (Tr. 117); Ordinance No. 7527, frozen food lockers 
and public warehouses (Tr. 119); Ordinance No. 7538, air­
plane sales and services (Tr. 121); Ordinance No. 7573, 
interstate and radio broadcasting (Tr. 123); Ordinance 
No. 7677, collecting agencies (Tr. 128); Ordinance No. 
7803, parking lots (Tr. 130); Ordinance No. 7809 relieved 
charitable organizations engaging in the occupations af­
fected from the payment of the privilege tax (Tr. 132); 
Ordinance No. 7876, washaterias (Tr. 134); Ordinance No.
7843, auditors and accountants (Tr. 136); Ordinance No.
7844, stage shows, vaudeville acts, etc. (Tr. 138); Ordinance 
No. 7934, junk dealers (Tr. 142); Ordinance No. 7935, 
coin operated radios (Tr. 144); Ordinance No. 8017, auc­
tioneers (Tr. 146); Ordinance No. 8139, photographers (Tr. 
148); Ordinance No. 8191, tree surgery (Tr. 154); Ordi­
nance No. 8049, premium stamps (Tr. 158); Ordinance No. 
8214, floor finishers (Tr. 161); Ordinance No. 8228, mobile 
produce salesmen (Tr. 163); Ordinance No. 8236, street 
cars and bus advertising (Tr. 167) ; Ordinance No. 8261, 
display advertising (Tr. 169); Ordinance No. 7515, linen 
and towel supply service (Tr. 171) Ordinance No. 8530, 
bakeries and doughnut shops (Tr. 173); Ordinance No. 8531, 
automobile dealers (Tr. 177); Ordinance No. 8554, portable 
typewriters and small adding machines (Tr. 178); Ordi­
nance No. 8568, sightseeing coaches (Tr. 179); Ordinance 
No. 8980, the production of electricity (Tr. 188); Ordinance 
No. 9014, the distribution and sale of natural gas (Tr. 191);

2 The “Tr.” citations here are to the original unprinted record 
on file in the office of the Clerk of this Court.



17

Ordinance No. 9015, the Southwestern Bell Telephone 
Company (Tr. 194); Ordinance No. 9125, meat inspection 
(Tr. 199); Ordinance No. 9161, drive-in theatres (Tr. 205); 
Ordinance No. 9162, television (Tr. 207); Ordinance No. 
9241, pistols (Tr. 211); Ordinance No. 9243, municipal 
owned auditoriums (Tr. 220); Ordinance No. 9306, profes­
sional bondsmen (Tr. 225); Ordinance No. 9328, convales­
cent nursing- homes (Tr. 251); Ordinance No. 9378 re­
pealed Ordinance No. 9241 (Tr. 255); Ordinance No. 
9406, the sale and transfer of pistols (Tr. 256); Ordinance 
No. 9845, ice manufacturing (Tr. 262); Ordinance No. 10,063 
repealed Ordinance No. 9125 with respect to meat inspec­
tion (Tr. 264); Ordinance No. 10,167 amended Ordinance 
Nos. 7476 and 9845 in respect to ice manufacturing (Tr. 
266); Ordinance No. 10,270, automobile express business 
(Tr. 268); Ordinance No. 10,495, the Midwest Video, Inc. 
(Tr. 270); Ordinance No. 10,496, the Rowley United Thea­
tres, Inc. (Tr. 276); and Ordinance No. 10,638, the present 
amendment.

These provisions were squarely aimed at reaching all 
the professional, commercial and business occupations 
within the municipality. The tax is not automatic, and 
before the city can require payment of the tax, there 
must be a showing that the individual or organization 
affected is engaged in one of the activities for wThich a 
license is required. See Speiser v. Randall, supra. Thus, 
here there must have been a showing (1) that the N.A.A.C.P. 
was engaged in a business or commercial activity for 
which a license is required; (2) that a claim for payment 
of the tax has been made; (3) that an immunity based upon 
the non-profit character of the organization was asserted. 
Only then are the provisions of Ordinances No. 10,638 and 
2638 conceivably applicable. None of these prequisities is 
present in this record.



18

Even A ssum ing  A rg u en d o  T h a t T h ese  O rd in an ces 
Could Be V alid ly  A p p lied  H ere , th e  R eq u irem en t 
T h a t th e  N am es of M em bers a n d  C o n trib u to rs  
Be D isclosed to  C ity  Officials a n d  Be S u b jec t to  
P u b lic  Inspection  B ears No R easo n ab le  R e la tio n ­
ship  to  A L aw fu l an d  E ffective E xercise of th e  
M unicipal T ax in g  A u th o rity , W h ich  is th e  P u r­
p o rted  P u rp o se  of T h ese  R egu lations.

The occupation license tax is either a flat tax on the 
occupation affected, a pro rata tax upon stocks, goods 
on hand or upon capacity of the establishment, or a per 
capita tax upon the number of specialized employees. It 
seems obvious, therefore, petitioners respectfully submit, 
that the names of an organization’s members and contrib­
utors have no bearing upon the effective enforcement of 
the occupation tax ordinance, or upon whether the 
N.A.A.C.P. is engaged in a taxed occupation, is a non­
profit organization and exempt from the tax, or operating 
for profit and subject to the tax.

The evidence in the record conclusively reveals that 
these “ tax revenue measures” were principally intended 
to interfere with the freedom of association of members 
of petitioners’ organization.

Mr. Loy, sponsor of Ordinance No. 10,638, testified as 
follows in respect to its purposes (R. 22-24).

A. The purpose of the ordinance and me being 
Vice Chairman of the Finance Committee of Little 
Rock, and the City being in a condition of very bad 
financial strain, it was determined that if we could 
strengthen the privilege tax ordinance it would bring 
in the additional revenue the City needed and the 
purpose back of the ordinance was strictly to develop 
revenue.

Q. I take it that there had been evidence brought 
before the City Council that there had been viola­
tions of the privilege tax ordinance by organiza­
tions! A. We have had in the City of Little Rock 
in the past year numerous different organizations 
that were formed, clubs, organizations and what-not.



19

It was thought that in many eases that many of 
these organizations were not paying their proper 
privilege taxes.

Q. Well, now, just two questions. I  want to refer 
specifically to Paragraph E of the ordinance. What 
was the purpose of the requirement you made of 
identifying the persons who paid dues, fees, assess­
ments and/or contributions insofar as this would 
strengthen the privilege tax ordinance and bring 
in increased revenue for the City?

# # #
A. Under the State laws, any individual, company 
or corporation or what have you that wants to sell 
beer—if it happened to be in my Ward, I would 
have to approve the approval of the beer license 
before that person, firm or corporation would be 
permitted to have a license in the City of Little 
Rock. Not only that, but in doing that, we have 
to determine who owns or belongs to the different 
organizations from a felony standpoint and from 
a gambling standpoint and consequently that para­
graph in the ordinance was specifically to determine 
whether any of the members or the individual, firm or 
corporation was guilty of a felony or possibly 
gambling or liquor violations or gambling violations 
that had been previously done or would be done in 
the future.

Q. In other words, as I understand your state­
ment, Paragraph E of the ordinance applies only 
to organizations that sell beer or sponsor gambling, 
is that correct? A. There is no way to determine, 
if you read the ordinance and where you have maybe 
50 or 100 or several hundred individuals, firms or 
corporations—to determine what the intent or what 
the characterability of the people was unless you 
had a complete list of who was involved.

Q. Would the list of names help you to know 
whether or not they sold beer or gambled f A. The 
Police Department has a pretty good idea of the 
different people in Little Rock in the different 
organizations, clubs and what have you.

Q. You have in Paragraph D of the Ordinance, 
“ The purpose or purposes of such organization”— 
I am reading from the ordinance? A. That’s right.



20
Q. As I understand your testimony, you need the 

names and addresses of the people you request in 
Paragraph E to determine whether or not they have 
committed some felony or engaged in gambling! 
A. If they had nothing to hide in any way, they 
wouldn’t have any objection to going ahead and 
answering the questions as put out in the ordinance 
if they had nothing to hide.

Mr. Paul 0. Duke, sponsor of Ordinance No. 2683, 
similarly described its purposes (R. 48-50):

Q. Mr. Duke, did you sponsor this Ordinance? 
A. I did.

Q. Then you are quite familiar with the contents 
of it? A. Fairly well.

Q. Now in the introductory clause of this Ordi­
nance, it is stated that it was enacted for the purpose 
of implementing your Privilege Tax Ordinance which 
is No. 1786. Are you familiar with that Ordinance? 
A. That is right, yes, sir.

Q. Also in your introductory clause of 2683 it is 
stated that certain organizations have been claim­
ing immunity to this Privilege Tax. Now, to your 
knowledge, do you know whether or not a request 
has ever been made on the North Little Rock Branch 
of the NAACP for a Privilege Tax? A. Not that 
I know of.

Q. I will further ask you, sir, in what way does 
North Little Rock City Ordinance No. 2683 implement 
your Privilege Tax Ordinance? A. Now, that is 
a connection there that it was just trying to find 
out if there was a privilege tax involved in this, 
in your organization, the NAACP.

Q. Now, you further stated that you are familiar 
with your Privilege Tax Ordinance which is 1786, 
and I believe in that Ordinance you have a list of 
the _ organizations and list of businesses that are 
subject to that privilege tax, is that correct, sir? 
A. Yes, sir, there is.

Q. Now, have you personally examined City Ordi­
nance No. 1786 to determine whether or not this 
organization is covered by this tax? A. Not com­
pletely.



21

Q. And you voted on this measure 2683 before 
you investigated 1786 to determine whether or not 
this organization was subject to it! A. I did.

Q. Well, what did you find, sir! A. That this 
was up to the discretion of the Ordinance to be 
involved to see if there was privilege tax due the 
City of North Little Rock.

Q. And I believe you stated that you are familiar 
with the Privilege Tax Ordinance! A. I said to 
some extent.

Q. To some extent. Then you don’t know 
whether or not your privilege tax ordinance covers 
this organization already, do you! A. I  couldn’t 
say.

Q. All right, sir. I would like for you to tell the 
Court just in what way would the listing of the 
official name of the organization, business place or 
its meeting place, the names and addresses of con­
tributors would implement your tax ordinance! A. 
This was simply put in to see if there was other means 
involved in your organization. We were not—we are 
not acquainted with your organization whatsoever.

Q. Then you just wanted to find out what goes on 
in the organization, is that right! A. That is right. 
By our rights—

Q. Sir! A. By our rights we are asking that.

This testimony indicates that the municipalities pur­
port to use their taxing authority in order to violate rights 
of freedom of speech and association. This, petitioners 
submit, the state cannot do, and these ordinances, therefore, 
do not meet the standards required by the Fourteenth 
Amendment. See Murdoch v. Pennsylvania, supra; Oros- 
jean v. American Press Go., 297 IJ. S. 233.



22

I I I

The Ordinances Are Actual And Effective Inter­
ferences W ith Freedom of Association and Not A  Mere 
Abstract Impairment of Constitutional Rights.

Petitioners based their refusal to comply with the terms 
of the ordinances, which required disclosure of the names and 
addresses of members and contributors of the N.A.A.C.P. 
on the fear and belief that such disclosure would lead to 
reprisals, harassment and bodily harm. In the testimony 
introduced or proffered below, it was shown that there had 
been a loss in membership of both Branches, which was 
attributed to fear on the part of persons who normally 
joined that their names might be published and they might 
suffer hardship (R. 10-19; 52-56; 58-62). There was also 
testimony that persons who had become publicly identified 
with the Association had been subjected to pressures and 
harassment. Both Mr. Fair, Vice President of the North 
Little Rock N.A.A.C.P. Branch, and petitioner Williams 
received annoying telephone calls and had to have their 
telephone numbers changed several times (R. 55, 60). Mrs. 
Williams had rocks thrown at her home, and her life was 
threatened by letter and over the phone (R. 60). She was 
denied temporary employment which she normally received 
each year (R. 61). She was pointed out on the street as 
the woman who had been arrested because of belonging to 
the N.A.A.C.P. (R. 61). The devastating and corrosive effect 
on freedom of association caused by the public identifica­
tion of N.A.A.C.P. members is perhaps best epitomized by 
petitioner Williams’ statement that none of the annoyances 
or harassments testified to had occurred before passage of 
the “ Bennett” ordinance and her public identification with 
the Association. “ I was called a respectable woman before 
that time” (R. 62).

Ordinances 10,638 and 2683 are another in a series of 
efforts on the part of southern communities to restrict and



23

stifle the activities of the N.A.A.C.P., apparently in the 
belief that by silencing the organization, the demand for 
equal rights and equal justice will also die. See Robison, 
“ Protection of Associations Prom Compulsory Disclosure 
of Membership,” 58 Col. L. Rev. 614 (1958); “ Freedom of 
Association,” 4 Race Rel. L. Rep. 207 (1959). Many of 
these attempts have reached this Court. See, e.g., 
N.A.A.C.P. v. Alabama, supra, and 360 U. S. 240 (again re­
versing the judgment of the Supreme Court of Alabama); 
N.A.A.C.P. v. Harrison, 360 IT. S. 467 (vacating and re­
manding the judgment below on application of the doctrine 
of federal abstention); N.A.A.C.P. v. Committee on 
Offenses Against the Administration of Justice, 358 U. S. 
40 (vacating the judgment below and remanding cause as 
moot); N.A.A.C.P. v. Arkansas, ex rel Bruce Bennett, 
Attorney General, 360 U. S. 909 (certiorari denied); 
N.A.A.C.P. v. Bennett, 360 U. S. 471 (vacating and remand­
ing judgment below for reconsideration in light of 
N.A.A.C.P. v. Harrison) ■ N.A.A.C.P. v. Williams, 359 IT. S. 
550 (certiorari denied in absence of a final judgment) ; 
Gibson v. Florida Legislative Investigation Committee, 360 
IT. S. 919 (certiorari denied); see also Scull v. Virginia, 359 
IT. S. 344; Bryan v. Austin, 148 F. Supp. 563 (E. D. S. C. 
1957), vacated and remanded, 354 IT. S. 933; Shelton v. 
McKinley, — F. Supp. — (E. D. Ark. June 8, 1959).

The purpose and effect of these regulations are to restrict 
and curb N.A.A.C.P. activities by interfering with the free­
dom and privacy of associational relationships of members 
in the N.A.A.C.P. Merely because the views and objec­
tives of the Association do not meet with the approval 
of state and local officials in Arkansas, see Cooper v. Aaron, 
supra, the state cannot interfere with the rights of in­
dividuals to freely advocate realization of those objectives 
and to associate together in the N.A.A.C.P. for the pur­
pose of engaging in lawful activity in furtherance of these 
aims. Such, however, is what is attempted here.



24

CONCLUSION

Wherefore, for the reasons hereinabove stated, 
petitioners submit that the convictions and sentences 
here involved should be reversed, and that Ordi­
nance No. 10,638 and Ordinance No. 2638 should 
be struck down as prohibited by the due process clause 
of the 14th Amendment to the Constitution of the 
United States.

Respectfully submitted,

R obebt L. Cabteb,
20 West 40th Street,

New York, New York,

(xEOKGE IIOWAPJ), J r.,
329% Main Street,

Pine Bluff, Arkansas,
Attorneys for Petitioners.

Certificate of Service

I hereby certify that copies of the foregoing brief have 
been served by depositing the same in a United States mail 
box, with first-class postage prepaid, to the following 
counsel of record:

Joseph C. Kemp, Esq.
812 Pyramid Life Building- 
Little Rock, Arkansas

Reed Thompson, Esq. ,
North Little Rock
Arkansas

Dated: Sept. 17, 1959.

R obebt L. Cabteb.



Supreme P rinting Co., I nc., 54 Lafayette Street, N. Y. 13, BEekman 3-2320