Henry v. Greenville Airport Commission Brief and Appendix for Plaintiff-Appellant

    I n  t h e

Mnxteb (Eiuirt nf Kppm h
F ob the F oubth Circuit

Civil Action No. 8009

R ichard B. H enry,
Plaintiff-Appellant,

—v.—

Greenville A irport Commission ; 0. L. A ndrews, Manager, 
Greenville Municipal A irport; W illiam T. Adams, 
Chairman, Greenville A irport Commission and H ugh 
K. A iken ; Olin H. Spann ; E dward McCrady ; W illiam 
B. Coxe, Members of the Greenville A irport Commis­
sion,

Defendants-Appellees.

BRIEF AND APPENDIX FOR 
PLAINTIFF-APPELLANT

L incoln C. J enkins, J r.
1107% Washington Street 
Columbia, South Carolina

T hurgood Marshall 
J ack Greenberg

10 Columbus Circle 
New York 19, New York
Attorneys for Appellant



INDEX TO BRIEF

Statement of the Case....... ....................................... 1

Questions Involved ........ .......... .................... ...........  5

Statement of the Facts .......... ................... ...... .........  6

\ Argument 1...................................................................  8

PAGE

I. The court below erred in holding that Four­
teenth Amendment rights had not been de­
nied, thereby dismissing the complaint, and in 
holding that there was no jurisdiction under 
Title 28 U. S. C. §1343 and Title 42 U. S. C.
§1983 .......................... ........... ........................  8

II. The court below erred in dismissing the com­
plaint which alleged that appellant, an inter­
state passenger in the course of his interstate 
journey, was racially segregated in his use 
of the facilities at the Greenville Municipal 
Airport contrary to Article I, Section 8 of 
the United States Constitution (Commerce 
Clause) ................... .................. ................... 17

III. The court below erred in dismissing the com­
plaint insofar as it alleged that on informa­
tion and belief the Greenville Airport Com­
mission has from time to time received sub­
stantial sums of money from the government 
of the United States for the purposes of con­
structing substantial portions of and main­
taining operations at said Airport whereby 
the discrimination against appellant violated 
the due process clause of the Fifth Amend­
ment to the Constitution of the United States 19



11

IY. The court below, contrary to Rule 23(a)(3) 
of the Federal Rules of Civil Procedure, 
erred in striking paragraph 2 of the com­
plaint which alleges that this is a class action 21

V. The court below erred in denying appellant’s 
application for preliminary injunction which 
was based upon an uncontroverted affidavit 
supporting the allegations of the complaint.... 24

VI. The court below erred in not permitting ap­
pellant to introduce evidence on the motion 
for preliminary injunction ..........................  26

Table oe Cases

Air Terminal Servs. Inc. v. Rentzel, 81 F. Supp. 611
(E. D. Va. 1949) .....................................................  10

Alston v. School Board of the City of Norfolk, 112 
F. 2d 992 (4th Cir. 1940), cert, denied 311 U. S. 693 18

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .... 16
Bolling v. Sharpe, 347 U. S. 497 .................... ........10,19, 20
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala. 1956),

aff’d, 352 U. S. 903 ......................... ........................  9,10
Brown v. Board of Education, 347 U. S. 483 (1954) .. 9

Chance v. Lambeth, 186 F. 2d 879 (4th Cir. 1951),
cert, denied, 341 U. S. 941 ..... ...............................  17

Clemons v. Board of Education of Hillsboro, Ohio,
228 F. 2d 853, 857 (6th Cir. 1956), cert, denied,
350 U. S. 1006 ................................. .......................  24

Conley v. Gibson, 355 U. S. 41, 4 7 ............................  13
Cooper v. Aaron, 358 U. S. 1, 19 ...............................  10

PAGE



Ill

Dawson v. Mayor, 220 F. 2d 386 (4th Cir. 1955), 
aff’d 350 IT. S. 877 .............. ........... ........................  9

Evers v. Dwyer, 358 U. S. 202 ......... ......... -.............  11

Flemming v. South Carolina Elect. & Gas Co., 224 
F. 2d 752 (4th Cir. 1955), app. dism., 351 IT. S. 901 10

Frasier v. Board of Trustees of the ITniv. of N. C.,
134 F. Supp. 589, 592 (M. D. N. C. 1955), aff’d,
350 U. S. 979 (1956) ........... ................................ . 9, 22

Frost Trucking Co. v. E. E. Commission, 271 U. S.
583 ................................. ..............- ......... ..............  18

Gossnell v. Spang, 84 F. 2d 889 (3rd Cir. 1936), cert, 
denied, 299 U. S. 605 ________________ ____ 25

Hague v. C.I.O., 307 U. S. 496 ...................................  15
Hawkins v. Board of Control of Florida, 253 F. 2d

752 (5th Cir. 1958) __ ___________ _____ _____  26-27
Henderson v. United States, 339 U. S. 816, 825 ___  18
Heyward v. Public Housing Administration, 238 F.

2d 689 (5th Cir. 1956) .... .....................................  20
Holmes v. Atlanta, 124 F. Supp. 290 (N. D. Ga. 1954) 16

Jinks, et al. v. Hodge, 11 F. E. D. 346 (E. D. Tenn.
1951) ___ ____________________ _______ ___  22

Johnson v. Board of Trustees of ITniv. of Ky., 83 F.
Supp. 707 (E. D. Ky. 1949) ____ __________ ____  15

Lonesome v. Maxwell, 220 F. 2d 386 (4th Cir. 1955) .. 9,11

Morgan v. Virginia, 328 U. S. 373 ................... ......... 17

Nash v. Air Terminal Servs., 85 F. Supp. 545 (E. D.
Va. 1949) ............. .................... ........... .................  10,20

PAGE



IV

N. Y. N. H. & H. R. Co. v. Nothnagle, 346 U. S. 128 .... 18

Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 229 19
Royal Brewing Co. v. Missouri K. & T. Ry. Co., 217 

F. 146 (D. Kan. 1914) ............... ........... ................  25

Sprout v. South Bend, 277 U. S. 163, 168 .................  19

Union Tool Co. v. Wilson, 259 U. S. 107,112.............. 24
United States v. Yellow Cab Co., 332 U. S. 218, 228 19

Whiteside v. Southern Bus Lines, 177 F. 2d 949 (6th 
Cir. 1949) ................................................................  17

Williams v. Howard Johnson’s Restaurant, 268 F. 2d 
845 (4th Cir. 1959) .................................... ............. 10

Wrighten v. Board of Trustees of Univ. of S. C., 72 
F. Supp. 948 (E. D. S. C. 1947) ............................  15

STATUTES

South Carolina Statutes

Act. No. 919 of the Acts and Joint Resolutions of 
the General Assembly of the State of South Caro­
lina ........................................................................... 1,6

United States Constitution

Article 1, Section 8 ..................................................... 5, 8,17
Fifth Amendment ........ .......... ............. ....................  10,19
Fourteenth Amendment ............................................  2,19

PAGE



V

U nited States Code

PAGE

Title 28 §1331 ....... ........................-................... . ..2, 4,14,15
Title 28 §1332 ...... ..... ........... ......... .......... ......... .... ..2, 5,14
Title 28 §1343 ........ .......... ......... ......... .......... ..5, 8,14,15
Title 42 §1981 .... ........................ ........................ 2
Title 42 §1983 .............. .......... .................... ....... ......  8,9

F ederal R ules oe Civil P rocedure 

Rule 6 ............................... .... ........... ......... ........ ......  2
Rule 12(b) _____ ________________ ________ ___ 2
Rule 23(a)(3) ............. ....................................... .... 2, 21, 22
Rule 65 ................... .................................. .......... ......  26

Other A uthority

2 Race Relations Law Reporter 269 (1957) .... . 15



VI

INDEX TO APPENDIX
PAGE

Complaint................   la
Exhibit “A”—Acts and Joint Resolutions of the 

General Assembly ........................................... 5a

Motion for Preliminary Injunction ........ .................. 8a

Affidavit, of Richard B. H enry...................................  9a

Motion to Strike .......................................................  11a

Motion to Dismiss ....... .............................................. 13a

Renewal of Motion for Preliminary Injunction......  14a

Affidavit of Richard B. Henry .................................  15a

Affidavit of Freda A. McPherson ............................  18a

Order Dated September 8, 1959 ..................................  20a

Excerpts from Transcript of Proceedings, July 20,
1959 ..........................................      21a

Opinion of Hon. George Bell Timmerman, U. S. D. J. 26a



I n t h e

Inttpft BMta ©mart at Kppmh
F oe the F ourth Circuit 

Civil Action No. 8009

R ichard B. H enry,
Plaintiff-Appellant,

—v.—

Greenville A irport Commission ; 0. L. A ndrews, Manager, 
Greenville Municipal A irport; W illiam T. Adams, 
Chairman, Greenville A irport Commission and H ugh 
K. A ik e n ; Olin H. Spa n n ; E dward McCrady; W illiam 
B. Coxb, Members of the Greenville A irport Commis­
sion,

Defendants-Appellees.

BRIEF FOR PLAINTIFF-APPELLANT

Statement of the Case
This action was filed in Greenville, South Carolina, in 

the United States District Court for the Western District 
of South Carolina, Greenville Division, on January 20, 
1959, against the Airport Commission for the City and 
County of Greenville, an entity created by Act No. 919 of 
the Acts and Joint Resolutions of the General Assembly 
of the State of South Carolina, passed at the regular ses­
sion of 1928 (see Exhibit to Complaint). Two of the indi­
vidual appellee members of said Commission are, by said 
statute, selected by the City Council of the City of Green­
ville ; two are selected by the Greenville County Delegation 
in the General Assembly of the State of South Carolina; 
another member is selected by a majority vote of said four



2

members. The remaining appellee, 0. L. Andrews, is 
manager of the Greenville Municipal Airport.

The appellant is a civilian employee of the United States 
Air Force, and a resident of Michigan, who in the course 
of his employment was required to use the facilities of the 
Greenville Municipal Airport (Complaint, f[6; Appendix* 
pp. 2a-3a) and reasonably expects that such duties will con­
tinue to take him to said airport (Complaint, 1(3).

Appellant prayed for an interlocutory and permanent in­
junction restraining appellees from making any distinc­
tion based upon color in regard to service at the Greenville 
Municipal Airport. Along with the Complaint was filed a 
Motion for Preliminary Injunction and Notice of Motion. 
In support of the Motion for Preliminary Injunction an 
affidavit was filed relating racial discrimination practiced 
against him at the airport upon which the suit and motion 
were founded.

On February 7, 1959, appellees filed a Motion to Dis­
miss the complaint under the provisions of Rule 12(b)(1) 
and (6) of the Federal Rules of Civil Procedure on the 
grounds (1) that the court had no jurisdiction of the sub­
ject matter of the action and, (2) that the complaint failed 
to state a claim upon which relief could be granted. Ap­
pellees also filed a Motion to Strike as immaterial, under 
the provisions of Rule 12(f) of the Federal Rules of Civil 
Procedure, the following portions of the Complaint:

“1. (a) The jurisdiction of this Court is invoked 
under Title 28, United States Code, Section 1331 as 
this action arises under Article 1, Section 8, and the 
Fourteenth Amendment of the Constitution of the 
United States, Section 1; and Title 42, United States 
Code, Section 1981 and the matter in controversy ex-

* Appendix refers to the appendix to plaintiffs’ brief printed herein.



3

“1. (c) The jurisdiction of this Court is invoked 
under Title 28, United States Code, Section 1332, plain­
tiff being a citizen of the State of Michigan and defen­
dants being citizens of the State of South Carolina 
and the matter in controversy exceeding the sum or 
value of Ten Thousand ($10,000.00) Dollars exclusive 
of interest and costs.

“2. Plaintiff brings this action pursuant to Rule 23
(a) (3) of the Federal Rules of Civil Procedure for 
himself and on behalf of all other Negroes similarly 
situated, whose numbers make it impracticable to bring 
them all before the court; they seek common relief 
based upon common questions of law and fact.

“5. Plaintiff alleges on information and belief that 
said Greenville Airport Commission has from time to 
time received substantial sums of money from the gov­
ernment of the United States for the purposes of 
constructing substantial portions of and maintaining 
operations at the Greenville Municipal Airport.”

Thereupon, the cause was transferred to and ultimately 
heard in Columbia although still in the Greenville Division 
of the Western District.

Appellees filed no counter affidavit or other refutation of 
appellant’s factual allegations.

At the hearing on July 20 appellant filed a motion en­
titled Renewal of Motion for Preliminary Injunction which, 
with slight variation, restated the averments of the original 
application for preliminary injunction (App. p. 14a). In 
support of the renewed motion there were filed appellant’s 
affidavit (App. p. 15a) which paralleled the earlier affi­

ceeds, exclusive of in te res t and  costs, the sum  or value
of Ten T housand ($10,000.00) D ollars.



4

davit except for reference to the fact that on the day prior 
to hearing appellees were continuing to maintain the 
segregation in question and an affidavit of one Freda Mc­
Pherson, a resident of Greenville, relating her knowledge 
that the practices complained of were maintained by ap­
pellees (App. p. 18a). Appellees objected to the re­
newed motion and the affidavits in support thereof on the 
ground that “ [t]he motion for preliminary injunction men­
tions nothing about any further affidavits to be filed” 
(Transcript of Proceedings,* p. 3; App. p. 21a). Upon 
this assertion the court declined to hear the motion for 
preliminary injunction at that time and proceeded to hear 
appellees’ motion to strike and dismiss (Tr. p. 5; App. 
p. 22a). Thereupon appellant offered also to place on 
the stand as witnesses the affiants who were then in court 
to testify and subject themselves to cross-examination (Tr. 
p. 6). To this the court stated “I realize that I may do that. 
I also realize that it could aid one side or the other to get 
an advantage that they are not entitled to. I don’t intend 
being a party to that” (Tr. p. 6; App. p. 23a). Follow­
ing this ruling plaintiff stated that “we will submit to 
having it [the motion for preliminary injunction] heard 
on that single affidavit at this time” (Tr. p. 8; App. p. 24a).

Appellant argued the motion for preliminary injunction. 
Appellees argued their motions to strike and to dismiss.

At the end of the hearing the court stated that “the court 
will refuse the motion for a preliminary injunction” (Tr. 
p. 39; App. p. 25a). Thereafter, on September 11, the 
court entered an order denying the motion for preliminary 
injunction (as it had held in open court) and granting ap­
pellees’ motions to strike paragraphs 1(a), 1(c), 2 and 5 
of the complaint and to dismiss the complaint,

In granting the motions to strike the court below ruled 
that there was neither federal question (28 U. S. C. §1331)

Hereinafter referred to as Tr.



5

nor diversity (28 U. S. C. §1332) jurisdiction. The opinion 
of the court (App. p. 35a) holds that neither was there 
jurisdiction under 28 U. S. C. §1343.

On September 25 appellant filed notice of appeal.

Questions Involved
1. (a) Whether the court below erred in granting ap­

pellees’ motion to dismiss where the complaint alleged that, 
contrary to the equal protection and due process clauses 
of the Fourteenth Amendment to United States Constitu­
tion, appellant had been racially segregated by appellees, 
governmental officers, in his use of the waiting room facili­
ties of the Greenville Municipal Airport; and

(b) which alleged that appellant, an interstate passenger 
in the course of his interstate journey, was racially segre­
gated by appellees, governmental officers, in his use of 
the facilities of the Greenville Municipal Airport, contrary 
to the commerce clause, Article 1, Section 8 of the United 
States Constitution; and

(c) which alleged that, on information and belief, the 
appellee Greenville Airport Commission has from time 
to time received substantial sums of money from the gov­
ernment of the United States for the purpose of construct­
ing substantial portions of and maintaining operations at 
the Greenville Airport, whereby the racial segregation of 
appellant constituted also a denial of due process of law 
guaranteed by the Fifth Amendment to the United States 
Constitution.

2. Whether the court below erred in holding that it had 
no jurisdiction of the cause.

3. Whether the court below erred in granting appellees’ 
motions to strike paragraphs 2 (alleging that this is a 
class action), and 5 (that there have been substantial fed­



6

eral contributions for construction and maintenance of the 
airport), of the complaint as immaterial.

4. Whether the court below erred in denying appellant’s 
motion for preliminary injunction supported by appellant’s 
affidavit—in opposition to which no factual issue had been 
raised.

5. Whether the court below erred in refusing to permit 
appellant to present testimony at the hearing on motion 
for preliminary injunction on the ground that the motion 
did not state that testimony would be presented.

Statement of the Facts
This ease was dismissed on motion to dismiss and con­

sequently the averments of the complaint have been ac­
cepted as true for purposes of the motion and this appeal.

The appellees in this case are the Airport Commission 
for the City and County of Greenville which has been 
created by Act No. 919 of the Acts and Joint Resolutions 
of the General Assembly of the State of South Carolina, 
passed at its regular session of 1928. This Commission 
consists of five members selected as follows: Two by the 
City Council of the City of Greenville; two by the Green­
ville County Delegation in the General Assembly and one 
selected by a majority vote of the four selected as above 
described (Exhibit to complaint; App. p. 5a). At Green­
ville, South Carolina this Commission performs the widely 
recognized governmental function of maintaining an air­
port for the service of interstate air travelers. The com­
plaint alleges, on information and belief, that the appellee 
Greenville Airport Commission has from time to time re­
ceived substantial sums of money from the government of 
the United States for the purpose of constructing substan­
tial portions of and maintaining operations at the airport 
(Complaint, fl5; App. p. 3a).



7

Appellant is a resident of the State of Michigan and a 
citizen of the United States. He is a civil service employee 
of the United States Air Force at Headquarters, 10th Air 
Force, Selfridge Air Force Base, Michigan. In such capac­
ity he is required to travel about the United States. His 
travels have taken him to the Greenville Airport and it is 
reasonably expected that they will take him there again 
(Complaint, 113; App. p. 2a). In the course of his travels 
appellant, early in November 1958, was at Donaldson Air­
port near Greenville, South Carolina, on air force business. 
When it was time for appellant to return to Michigan the 
air force travel officer arranged his ticket reservation and 
appellant arrived at the Greenville Air Terminal about 4 :20 
Friday, November 7,1958. Before boarding his plane which 
was scheduled for a 5 :2l p.m. take-off, appellant seated him­
self in the waiting room. Shortly thereafter the manager 
of the Greenville Airport, appellee 0. L. Andrews, or­
dered plaintiff out, advising him that “we have a waiting 
room for colored folks over there.” Appellant protested 
that this was a violation of his federal rights. Nevertheless, 
appellee Andrews insisted that appellant go and as a con­
sequence appellant was required to be racially segregated 
(Complaint, H6; App. p. 3a). The complaint also alleges 
that appellant is but one of a class of travelers constituted 
of Negroes similarly situated whose numbers make it im­
practicable to bring them all before the court and that they 
seek common relief based upon common questions of law 
and fact (Complaint, H2; App. p. 2a).

The complaint alleges that the segregation of appellant 
under the circumstances described constitutes a denial of 
equal protection and due process of law guaranteed by the 
Fourteenth Amendment to the United States Constitution 
and a denial of due process of law secured by the Fifth 
Amendment to the United States Constitution and an un­
constitutional burden of interstate commerce contrary to



8

Article 1, Section 8 of the Commerce Clause to the United 
States Constitution.

In support of the motion for preliminary injunction ap­
pellant filed an affidavit, which for all practical purposes 
related his experience at the airport, and in so doing swore 
to the factual averments of the complaint.

A R G U M E N T

I.
The court below erred in holding that Fourteenth 

Amendment rights had not been denied, thereby dismiss­
ing the complaint, and in holding that there was no 
jurisdiction under Title 2 8  U. S. C. §1343 and Title 42 
U. S. C. §1983.

Appellant will discuss the substantive question of Four­
teenth Amendment rights and the question of jurisdiction 
under Title 28 U. S. C. §1343 and Title 28 U. S. C. §1983 
together, for it is obvious that they stand or fall as a single 
argument. Indeed, it appears that the holding, in its 
opinion (App. pp. 35a~39a) of the court below that there 
was no jurisdiction was inseparable from its substantive 
ruling that there was no claim stated upon which relief 
could be granted.

The core of the complaint is that the Greenville Munici­
pal Airport is a governmentally owned and operated facility 
and that under the Fourteenth Amendment the airport 
commission composed of governmental officers may not 
practice racial discrimination at such a place. The juris­
dictional argument is inextricably intertwined with the 
substantive one for §1343 provides that the district courts 
shall have jurisdiction of actions to redress deprivation, 
under state law, of constitutional rights assuring equality:

“ (3) To redress the deprivation, under color of any 
State law, statute, ordinance, regulation, custom or



9

usage, of any right, privilege or immunity secured by 
the Constitution of the United States or by any Act 
of Congress providing for equal rights of citizens or 
of all persons within the jurisdiction of the United 
States

And Title 42 IT. S. C. §1983 provides similarly that an 
action lies for deprivation under state law of constitutional 
rights:

“Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, of any State or 
Territory, subjects, or causes to be subjected, any citi­
zen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceed­
ing for redress.’’

Therefore, if appellant has been denied his substantive 
constitutional civil rights an action will lie under these 
jurisdictional provisions. Conversely, there would be no 
point in discussing jurisdiction if no constitutionally pro­
tected civil right is involved.

On the substantive question it is now clearly settled that 
governmental officers may not practice racial segregation. 
This is true as to intrastate travel, Browder v. Gayle, 142 
F. Supp. 707, 717 (M. D. Ala. 1956), aff’d, 352 U. S. 903; 
as to recreational facilities, Lonesome v. Maxwell, 220 F. 
2d 386 (4th Cir. 1955); Dawson v. Mayor, 220 F. 2d 386 
(4th Cir. 1955), aff’d 350 U. S. 877; as to elementary and 
high schools, Brown v. Board of Education, 347 U. S. 483 
(1954); as to graduate and professional schools, Frasier 
v. Board of Trustees of the TJniv. of N. C., 134 F. Supp. 
589, 592 (M. D. N. C. 1955), aff’d, 350 U. S. 979 (1956). 
So far as airports are concerned there has been no decided



10

case involving Fourteenth Amendment rights, but when 
separate-but-equal was still recognized as good law it was 
held that the Fifth Amendment’s due process clause pro­
hibited segregation compounded by inequality at the Wash­
ington, D. C., airport. See Nash v. Air Terminal Servs., 
85 F. Supp. 545 (E. D. Va. 1949); see also, Air Terminal 
Servs. Inc. v. Rentzel, 81 F. Supp. 611 (E. D. Va. 1949). 
Because of the intimate correspondence between Fifth 
Amendment due process and Fourteenth Amendment equal 
protection and due process, see Bolling v. Sharpe, 347 
U. S. 497, Cooper v. Aaron, 358 IT. S. 1, 19, the decisions 
point to the obvious result that segregation at airports is 
to be treated by the courts like all other governmentally 
imposed segregation.

In the face of this uniform body of authority, however, 
the opinion of the court below states:

“It is inferable from the complaint that there were 
waiting room facilities at the Airport, but whether 
those accorded the plaintiff: and other negroes were in­
ferior, equal or superior to those accorded white citi­
zens is not stated” (App. p. 37a).

But no authority whatsoever is suggested by the court be­
low to indicate that the separate-but-equal doctrine is viable 
today in the slightest degree. See, Browder v. Gayle, 142 
F. Supp. 707, 717 (M. D. Ala. 1956), aff’d 352 U. S. 903 
(1956); Flemming v. South Carolina Elect. & Gas Co., 224 
F. 2d 752 (4th Cir. 1955), app. dism., 351 U. S. 901.

The opinion below relies heavily on Williams v. Howard 
Johnson’s Restaurant, 268 F. 2d 845 (4th Cir. 1959) (App. 
p. 37a). But in that case the restaurant in question was 
clearly a wholly privately owned entity, the proprietors 
were not state officers. In this case the airport is clearly 
a governmental facility; the appellees are state officers.



11

The opinion below relies on the fact that there is no 
statute in the State of South Carolina requiring the segre­
gation involved (App. p. 36a), but obviously, it is not 
necessary that there be a statute for there to be state action. 
The discriminatory acts of governmental officers without 
benefit of statute are just as unconstitutional. Lonesome 
v. Maxwell, supra.

The opinion below states:

“ . . .  It is also inferable from the complaint that 
the plaintiff did not go to the waiting room in quest 
of waiting room facilities, but solely as a volunteer for 
the purpose of instigating litigation which otherwise 
would not have been started. The Court does not and 
should not look with favor on volunteer trouble makers 
or volunteer instigators of strife or litigation” (App. 
p. 37a).

But there is no evidence to indicate that appellant re­
quested equal rights as a volunteer for the purpose of 
instigating litigation. Indeed, it is obvious that he was 
acting in the course of his duties for the United iStates 
Air Force, But even if the court’s wholly gratuitous as­
sumption1 were true, Evers v. Dwyer, 358 U. S. 202, holds 
that an action certainly lies.

The opinion below states that the complaint is unclear 
as to what is the nature of the discrimination complained 
of.

1 The opinion also states:
“The Court’s attention has been directed to no law that confers on any 

citizen, white or negro, the right or privilege of stirring up racial discord, 
of instigating strife between the races, of encouraging the destruction of 
racial integrity, or of provoking litigation, especially when to do so the 
provoker must travel a great distance at public expense” (App. p. 37a). 
There is certainly not a shred of evidence in the record indicating that 
the factors mentioned in this quotation exists.



12

“ . . . From whom was he segregated? The affidavit 
doesn’t say. Was he segregated from his family or 
from his friends, acquaintances or associates, from 
those who desired his company and he theirs? There 
is nothing in the affidavit to indicate such to be true. 
Was he segregated from people whom he did not 
know and who did not care to know him? The affi­
davit is silent as to that also. But suppose he was 
segregated from people who did not care for his com­
pany or association, what civil right of his was there­
by invaded? If he was trying to invade the civil 
rights of others, an injunction might be more prop- 
erly invoked against him to protect their civil rights. 
I know of no civil or uncivil right that anyone has, 
be he white or colored, to deliberately make a nuisance 
of himself to the annoyance of others, even in an effort 
to create or stir up litigation” (App. p. 29a).

But, in the context of the complaint it is difficult to imagine 
what could have been intended by it except to aver that 
appellant was discriminated against racially. The com­
plaint states:

“Early in November, 1958, plaintiff was at Donald­
son Air Force Base near Greenville, South Carolina 
on Air Force business. When it was time for him 
to return to Michigan the Air Force travel officer 
arranged his ticket reservations, and plaintiff arrived 
at the Greenville Air Terminal at about 4:20 p. m., 
Friday, November 7, 1958. Before boarding his plane, 
which was scheduled for a 5:21 p. m. take-off, plain­
tiff seated himself in the waiting room. Shortly there­
after the manager of the Greenville Airport ordered 
plaintiff out, advising him that ‘we have a waiting 
room for colored folks over there.’ Plaintiff informed 
him that he was an interstate traveler and that plain­



13

tiff believed that said manager’s action was in viola­
tion of federal law and ICC regulations. Neverthe­
less, said manager insisted that plaintiff go. As a 
consequence plaintiff was required to be segregated” 
(Complaint H3, App. 2a).

Moreover, the opinion of the court below itself clearly 
interprets the complaint as one assailing the racial segre­
gation of the plaintiff by the defendants at the municipal 
airport. The reference to separate-but-equal in the opinion, 
discussed above, and the court’s statement that “even 
whites, as yet, still have the right to choose their own 
companions and associates, and to preserve the integrity 
of the race with which God Almighty has endowed them” 
(App. 30a) both acknowledge that this case involves an 
issue of racial discrimination. The statement in the opinion 
that there is no state law requiring racial segregation in 
the airport waiting room and the court’s quotation from 
the complaint—“we have a waiting room for colored folks 
over there”—would hardly leave any doubt in the mind 
of an objective reader, as there obviously was no doubt in 
the mind of the court, that here is anything but a com­
plaint asserting constitutional rights against racial dis­
crimination.

Appellants submit that here there is no ambiguity at 
all in the complaint. It requires nothing but an objective 
reading to comprehend what plaintiff’s claim is. But the 
federal rules go further than is here required. As was 
stated in Conley v. Gibson, 355 U. S. 41, 47:

The respondents also argue that the complaint 
failed to set forth specific facts to support its gen­
eral allegations of discrimination and that its dis­
missal is therefore proper. The decisive answer to 
this is that the Federal Rules of Civil Procedure do



14

not require a claimant to set out in detail the facts 
upon which he bases his claim. To the contrary, all 
the Eules require is ‘a short and plain statement of 
the claim’ that will give the defendant fair notice 
of what the plaintiff’s claim is and the grounds upon 
which it rests. The illustrative forms appended to 
the Eules plainly demonstrate this. Such simplified 
‘notice pleading’ is made possible by the liberal op­
portunity for discovery and the other pretrial pro­
cedures established by the Eules to disclose more 
precisely the basis of both claim and defense and to 
define more narrowly the disputed facts and issues. 
Following the simple guide of Eule 8(f) that ‘all 
pleadings shall be so construed as to do substantial 
justice,’ we have no doubt that petitioners’ complaint 
adequately set forth a claim and gave the respondents 
fair notice of its basis. The Federal Eules reject the 
approach that pleading is a game of skill in which 
one misstep by counsel may be decisive to the outcome 
and accept the principle that the purpose of pleading 
is to facilitate a proper decision on the merits. Cf. 
Maty v. Grasselli Chemical Co., 303 U. S. 197, 82 L. 
ed. 745, 58 S. Ct. 507.

If, as has been established, the defendants have wrong­
fully imposed a racial classification on plaintiff, a cause 
of action lies under the Fourteenth Amendment and the 
District Court had jurisdiction to hear the cause.

Among the jurisdictional provisions upon which appellant 
bases the complaint was Title 28 U. S. C. §1343. Appellees’ 
motion to strike which attacked the complaint’s assertion 
of federal question of jurisdiction under Title 28 U. S. C. 
§1331 and diversity jurisdiction under Title 28 U. S. C. 
§1332, made no issue whatsoever of the averment of juris­



15

diction under Title 28 U. S. C. §1343, although at the oral 
argument jurisdiction on this ground was assailed also. 
It is obvious, however, that the defendants’ motion to 
strike was correct in not attacking §1343 jurisdiction. 
This section since Hague v. G. I. 0., 307 U. S. 496, has been 
the basis upon which almost all civil rights cases have been 
brought. As Mr. Justice Stone wrote in that case §1343 
would be meaningless unless it permitted suit for redress 
of civil rights incapable of pecuniary valuation:

Since the two provisions [§1331 and §1343] stand 
and must be read together, it is obvious that neither is 
to be interpreted as abolishing the other. . . .  By 
treating [§1343(3)] as conferring federal jurisdiction 
of suits brought under the Act of 1871 in which the 
right asserted is inherently incapable of pecuniary 
valuation, we harmonize the two parallel provisions of 
the Judicial Code, construe neither as superfluous, and 
give to each a scope in conformity with its history and 
manifest purpose. 307 U. S. at 530.

Appellants respectfully submit that many of the authori­
ties are so well discussed and summarized in an exhaustive 
analysis of federal jurisdiction in civil rights cases which 
appears in 2 R. R. L. R. 269 (1957), from which the fol­
lowing quotation is excerpted, that little further need be 
added:

Jurisdiction under Section 1343 has been sustained 
in actions by Negro applicants for declaratory judg­
ments against universities (Johnson v. Board of Trus­
tees of University of Kentucky, 83 F. Supp. 707, E. D. 
Ky. 1949; Wrighten v. Board of Trustees of University 
of S. C., 72 F. Supp. 948, E. D. S. C. 1947), by persons 
excluded on account of race from government-operated 
places of recreation (Holmes v. Atlanta, 124 F. Supp.



16

290, N. D. Ga. 1954, 1 Race Rel. L. Rep. 146, 1956, 
affirmed 223 F. 2d 93, 5th Cir. 1955, 1 Race Rel. L. Rep. 
149, 1956, vacated and remanded with direction 350
U. S. 879, 76 S. Ct. 141, 100 L. E d .----- , 1955, 1 Race
Rel. L. Rep. 14, 1956, golf courses; Williams v. Kan­
sas City, Mo., 104 F. Supp. 848, W. D. Mo. 1952, 
affirmed 205 F. 2d 47, certiorari denied 346 U. S. 826, 
74 S. Ct. 45, 98 L. Ed. 351, 1953, swimming pool; 
Lopez v. Seccombe, 71 F. Supp. 769, S. D. Cal. 1947, 
swimming pool and park facilities), by Negro teachers 
asking a declaratory judgment or an injunction against 
salary discrimination (Thompson v. Gibbes, 60 F. 
Supp. 872, E. D. S. C. 1945; Davis v. Cook, 55 F. Supp. 
1004, N. D. Ga. 1944; Thomas v. Hibbitts, 46 F. Supp. 
368, M. D. Tenn. 1942; Mills v. Board of Education, 
30 F. Supp. 245, D. Md. 1939), and by children seek­
ing an injunction against segregation in a city’s 
schools (Allen v. School Board of the City of Char­
lottesville, 1 Race Rel. L. Rep. 886, W. D. Va. 1956; 
Romero v. Weakley, 226 F. 2d 399, 9th Cir. 1955, 1 
Race Rel. L. Rep. 48, 1956). 2 R. R. L. R. at 283.

See also Baldwin v. Morgan, 251 F. 2d 780, especially at
787 (5th Cir. 1958).



17

II.

The court below erred in dismissing the complaint 
which alleged that plaintiff, an interstate passenger in 
the course of his interstate journey, was racially segre­
gated in his use of the facilities at the Greenville Mu­
nicipal Airport contrary to Article 1, §8 of the United 
States Constitution (Commerce Clause).

In Morgan v. Virginia, 328 U. S. 373 the United States 
Supreme Court held that Virginia could not require racial 
segregation on interstate buses. The basis of the decision 
is that the enforcement of such seating arrangements so 
disturbed Negro passengers in interstate motor travel that 
a burden on interstate commerce was created in violation 
of Article 1, Section 8 of the United States Constitution. 
Id. at 381-82. The United States Supreme Court held that 
absent congressional legislation on the subject the Con­
stitution required “a single uniform rule to .promote and 
protect national travel.” Id. at 386. An identical rule has 
been applied to similar racial restrictions on commerce 
imposed by rules of the carrier enforced by arrest and 
criminal conviction. Whiteside v. Southern Bus Lines, 
177 F. 2d 949 (6th Cir. 1949); Chance v. Lambeth, 186 F. 2d 
879 (4th Cir. 1951), cert, denied 341 U. S. 941. It is obvious 
that interstate air travel cannot be conducted without 
airports and airport waiting rooms and anyone who has 
flown on commercial planes knows that it is necessary 
to arrive at the airport substantially in advance of de­
parture time to allow for ticketing, receipt of baggage and 
other incidents of air transportation. In fact, in this case, 
the complaint reveals that appellant arrived at approxi­
mately one hour befor flight time, certainly not an inordi­
nate or unusual length of time in advance of the flight, and 
seated himself in the waiting room as any air traveler



18

would expect to do. To humiliate him on the basis of race 
and require him to go to a waiting room for ‘‘colored folks” 
certainly may be expected to embarrass and disturb anyone 
so treated. Henderson v. United States, 339 U. S. 816, 825, 
while dealing with the Interstate Commerce Act, con­
demned racial segregation in railroad dining cars as “em- 
phasiz[ing] the artificiality of the difference in treatment 
which serves only to call attention to a racial classification 
of passengers holding identical tickets and using the same 
public dining facility.” These same considerations apply 
with equal force to the restrictions imposed upon plaintiff.

The natural and expectable result is either to discour­
age the use of air travel by Negroes or to encourage them 
to arrive at the terminal immediately before flight time so 
that the waiting room will not have to be used. This latter 
result would, of course, hamper air travel by interfering 
with the orderly processing of passengers sufficiently in 
advance of flight time. A third possibility—-submission to 
segregation or waiting outside of the building—is so ob­
viously an unconstitutional condition as to require no fur­
ther discussion. See, Frost Trucking Co. v. R. R. Commis­
sion, 271 U. S. 583; Alston v. School Hoard of the City of 
Norfolk, 112 F. 2d 992 (4th Cir. 1940), cert, denied 311 
U. S. 693 (1940).

The airport was built as an integral and essential part 
of interstate air travel. It cannot seriously be urged that 
because the terminal is stationary or local as to perhaps 
some persons, it is therefore not in interstate commerce 
at all and that petitioner’s treatment for that reason did 
not constitute a burden on interstate commerce. The 
United States Supreme Court has held that a transaction 
with a red cap at a railroad station is in interstate com­
merce, N. Y. N. H. & H. R. Co. v. Nothnagle, 346 U. S. 128. 
As stated in that case at page 130, “Neither continuity of



19

interstate movement nor isolated segments of the trip can 
be decisive. ‘The actual facts govern. For this purpose, 
the destination intended by the passenger when he begins 
his journey and known to the carrier, determines the char­
acter of the commerce,’ ” citing Sprout v. South Bend, 
277 U. S. 163, 168. Moreover, grain elevators surely as 
stationary as the air terminal have been held to be in 
interstate commerce. See Rice v. Santa Fe Elevator Corp., 
331 U. S. 218, 229. And taxi service between two rail 
terminals in Chicago which to the man in the street might 
look like ordinary local taxi traffic also has been held to 
be in interstate commerce. United States v. Yellow Cab 
Co., 332 IT. S. 218, 228.

Therefore, to have racially segregated plaintiff, an in­
terstate traveler, in the course of an essential use of the 
waiting room during his interstate journey did constitute 
a burden on interstate commerce and certainly the com­
plaint as to this count should not have been dismissed.

III.

The court below erred in dismissing the complaint 
insofar as it alleged that on information and belief the 
Greenville Airport Commission has from time to time 
received substantial sums of money from the govern­
ment of the United States for the purposes of construct­
ing substantial portions of and maintaining operations 
at said Airport whereby the discrimination against plain­
tiff violated the due process clause of the Fifth Amend­
ment to the Constitution of the United States.

As fundamental as the Fourteenth Amendment’s pro­
hibition on state imposed racial discrimination is the Fifth 
Amendment’s proscription of federally imposed racial dis­
crimination. Bolling v. Sharpe, 347 U. S. 497. To the ex­



20

tent that the airport in question has been built and main­
tained by substantial sums of money from the federal 
government the Fifth Amendment therefore also applies. 
The case involving the Washington, D. C. airport, discussed 
supra, Nash v. Air Terminal Services, 85 F. Supp. 545 
(E. D. Va. 1949), held in 1949 before the separate but 
equal doctrine was finally discredited, that a federally 
owned airport may not segregated where Negro facilities 
are inferior to white ones. Obviously, in view of later 
legal developments which definitively have struck down 
separate but equal, such an airport cannot now segregate 
whether the facilities are equal or not. Similarly, Heyward 
v. Public Housing Administration, 238 F. 2d 689 (5th Cir. 
1956), held that a cause of action under the Fifth Amend­
ment was stated against the Public Housing Authority in 
charging it with racial discrimination in expending fed­
eral funds for public housing. Id. at 696. And, of course, 
Bolling v. Sharpe, supra, establishes a parallel proposition 
with regard to federally maintained schools.

There is neither reason in logic nor authority why sub­
stantial sums of federal money should be insulated from 
the constitutional requirement of nondiscriminatory appli­
cation by the fact that said sums may be given to state offi­
cers for maintenance of a facility rather than said facility 
being maintained by federal officers themselves. Plaintiff 
respectfully submits, therefore, that paragraph 5 of the 
complaint alleging this federal participation also states 
a cause of action and that this portion of the complaint 
should not have been dismissed or stricken as immaterial.



21

IV.
The court below, contrary to Rule 2 3 ( a ) ( 3 )  of the 

Federal Mules of Civil Procedure, erred in striking para­
graph 2 of the complaint which alleges that this is a class 
action.

Rule 23(a)(3) of the Federal Rules of Civil Procedure 
states:

Rule 23. Class Actions.
(a) Representation. If persons constituting a 

class are so numerous as to make it impracticable 
to bring them all before the court, such of them, one 
or more, as will fairly insure the adequate represen­
tation of all may, on behalf of all, sue or be sued, 
when the character of the right sought to be enforced 
for or against the class is

# # # *  *

(3) several, and there is a common question of law 
or fact affecting the several rights and a common 
relief is sought.

The complaint alleges that:
Plaintiff brings this action pursuant to Rule 23(a) 
(3) of the Federal Rules of Civil Procedure for him­
self and on behalf of all other Negroes sim ila r ly  
situated, whose numbers make it impracticable to 
bring them all before the court; they seek common 
relief based upon common question of law and fact. 
(Complaint ]\2, App. p. 2a.)

Clearly this is an adequate statement under the scope 
of the rule and appellant should have been permitted to 
make his proof without this paragraph having been



22

stricken and the complaint having been dismissed out of 
hand. The authority for dismissing as a class action cited 
by the court below was Jinks, et al. v. Hodge, 11 F. R. D. 
346 (E. D. Tenn. 1951).

However, the Jinks case holds flatly contrary to the 
proposition for which it is cited.

That case involved a complaint which sought an injunc­
tion and also was sounded in tort. As to the cause of action 
in tort the court in Jinks held, as the court below here has 
pointed out, that a class action was inappropriate.

However, as to that portion of the complaint which 
prayed for an injunction—as the complaint in the instant 
case prayed—Jinks, et al. v. Hodge held that a class action 
was appropriate.

The action purports to be a class suit under Rule 23 
of the Federal Rules of Civil Procedure 28 U. S. C. A. 
So far as the action seeks an injunction, this suit may 
be considered a class action. 11 F. R. D. at 347.

In Frasier v. Board of Trustees of the University of 
North Carolina, 134 F. Supp. 589 (M. D. N. C. 1955), aff’d 
350 U. S. 979, the plaintiffs sought a declaratory judgment 
that the order of defendant board denying plaintiffs’ ad­
mission to the university was a violation of their rights 
under the Fourteenth Amendment. The board defended 
by stating that such a judgment in a class action would 
deprive the school of its power to pass upon the qualifica­
tions of each individual applicant to the university. The 
court in rejecting defendant’s position stated:

Such is not the case. The action in this instance is 
within the provisions of Rule 23(a) of the Federal 
Rules of Civil Procedure because the attitude of the 
University affects the rights of all Negro citizens of



23

the State who are qualified for admission to the under­
graduate schools. But we decide only that the Negroes 
as a class may not be excluded because of their race 
or color; and the Board retains the power to decide 
whether the applicants possess the necessary qualifica­
tions. This applies to the plaintiffs in the pending 
case as well as to all Negroes who subsequently apply 
for admission. 134 F. Supp. at 593.

Similarly, in this case one may conceive of circumstances 
in which a traveler might be excluded from the airport. 
Such a circumstance, however, would not include the 
traveler’s race.

In any event, all that the class action aspect of this suit 
seeks is an injunction against racial distinctions practiced 
against appellant “and all other Negroes similarly situ­
ated.” Plaintiff should be permitted to make his proof 
unless, of course, it is inherently incredible that other 
Negroes employ air transportation at the Greenville Air­
port—a contention which would not be worthy of serious 
consideration.2 Indeed, the existence of a place for “colored 
folks,” to use appellee manager’s language quoted in the 
complaint, would belie an assertion that no other Negroes 
use the terminal.

2 See the affidavit of Freda McPherson (App. p. 18a) (which was ex­
cluded from consideration by the court below) and the proffer of her testimony 
(App. pp. 23a; 25a) which was not permitted. This affidavit and proffer are 
hardly needed to sustain the proposition that Negroes other than defendant 
employ air transportation, but merely serve to confirm a matter of common 
knowledge.



24

y.
The court below erred in denying appellant’s appli­

cation for preliminary injunction which was based upon 
an uncontroverted affidavit supporting the allegations of 
the complaint.

Rule 65 of the Federal Rules of Civil Procedure provides 
for the issuance of preliminary injunctions upon notice 
and hearing. It is a well recognized proposition, of course, 
that whether or not to issue a preliminary injunction is in 
the discretion of the court. However, the existence of “dis­
cretion” does not mean that there is unfettered discretion. 
As Justice Brandeis wrote in Union Tool Co. v. Wilson, 
259 U. S. 107, 112, “legal discretion . . . does not extend 
to a refusal to apply well-settled principles of law to a 
conceded state of facts.” And as was held in Clemons v. 
Board of Education of Hillsboro, Ohio, 228 F. 2d 853, 857 
(6th Cir. 1956), cert. den. 350 IJ. S. 1006, a suit in which 
Negro children sought the abolition of segregated school­
ing, “it is generally held that the trial court abuses its 
discretion when it fails or refuses properly to apply the 
law to conceded or undisputed facts.” The Clemons case 
further stated:

If injunction will issue to protect property rights and 
“to prevent any wrong” ; . . .  it will issue to protect 
and preserve basic civil rights such as these for which 
the appellant seeks protection. While the granting 
of an injunction is within the judicial discretion of the 
District Judge, extensive research has revealed no 
case in which it is declared that a judge has judicial 
discretion by denial of an injunction to continue the 
deprivation of basic human rights.



25

The application for preliminary injunction was based 
upon appellant’s affidavit which supported the averments 
of the complaint and which at this point in the brief it 
would be redundant to once more recite. Much is made 
by the opinion of the court of the allegation in the affidavit 
that “a man purporting to be the manager” ordered the 
appellant to leave the white waiting room (App. p. 10a). 
It should be noted also that in paragraph 5 of the affidavit 
it is stated that “plaintiff is further informed that 0. L. 
Andrews [appellee herein] is manager of the said Green­
ville Municipal Airport” (App. pp. 9a-10a). Of course, the 
appellant with information available to him at the time 
could not allege other than that appellee Andrews held 
himself out to be manager. But there is no denial of the 
fact that appellee Andrews is the manager and the use 
of the word “purporting” merely means in the context of the 
affidavit “professing outwardly” (Webster’s New Interna­
tional Dictionary, 2d ed.). If appellee 0. L. Andrews were 
not the manager one might properly have expected a motion 
to dismiss him from the suit as an improper party. No 
such motion, of course, was filed.

It is respectfully suggested that if any issue were to 
be made of this factor, it would behoove appellees to 
have filed a counter-affidavit and not to argue tenuously 
with respect to the interpretation of plain language and 
indeed the situation with which appellant was confronted. 
There is no reason why in this case the court below should 
not have followed the general rule which is that a verified 
complaint or affidavit standing undenied may be presumed 
true. See Royal Brewing Co. v. Missouri K. T. Ry. Co., 
217 F. 146 (D. Kan. 1914); Gossnell v. Spang, 84 F. 2d 
889 (3rd Cir. 1936), cert. den. 299 U. S. 605.



26

VI.
The court below erred in not permitting appellant to 

introduce evidence on th e  motion for preliminary in­
junction.

At the hearing of the motion for preliminary injunc­
tion appellant sought to introduce additional affidavits. 
One affidavit, that of appellant, merely related the aver­
ments of the first affidavit filed with the original motion 
for preliminary injunction and also stated that the dis­
criminatory practice in question was still being maintained 
on the day before the hearing (App. p. 15a). Another affi­
davit, that of Freda McPherson, a resident of Greenville, 
stated that she too knew of the existence of the discrimina­
tory practice assailed in the complaint (App. p. 18a).

Appellees objected to the introduction of these affidavits 
on the ground that they had not had sufficient oppor­
tunity to study these documents and decide upon a course 
of action with respect to them prior to the hearing (App. 
pp. 21a-22a). The court refused to permit the affidavits 
to be introduced because the motion for preliminary in­
junction “mentions nothing about any further affidavits 
to be filed” (App. p. 21a).

At this time appellant requested permission to place 
on the witness stand two witnesses: appellant and Mrs. 
McPherson who would testify, it was proffered, concerning 
the discrimination in question (App. pp. 23a, 25a). This 
the court denied, apparently on the ground that the mo­
tion had not stated that witnesses would be presented on 
the hearing (App. pp. 23a-24a).

Rule 65 of the Federal Rules of Civil Procedure requires 
that a motion for preliminary injunction “shall be set 
. . . for hearing . . . ” As stated in Hawkins v. Board of



27

Control of Florida, 253 F. 2d 752, 753 (5th Cir. 1958) 
“hearing” requires that there be a trial of an issue of 
fact:

Hearing requires a trial of an issue of fact. Trial 
of an issue of fact necessitates an opportunity to pre­
sent evidence. Sims v. Greene, 161 F. 2d 87 (3rd Cir. 
1947). Since appellant was not given the opportunity 
to present evidence in his behalf, the order denying the 
preliminary injunction must be set aside.

It is inherent in the application for preliminary injunc­
tion and the requirement that a hearing be given thereon 
that testimony may be proffered. Indeed, it generally has 
been held that although a motion for preliminary injunc­
tion can be decided on affidavits, especially upon uncon­
troverted affidavits as in this case, it is better that oral 
testimony be heard. 7 Moore’s Federal Practice jf65.04[3], 
especially page 1639 (2d ed.).

The motion while stating that it was based upon ap­
pellant’s affidavit, certainly did not state that the appended 
affidavit would be the only grounds upon which appellant 
would move. The implicit requirement of a hearing cer­
tainly required that appellant be permitted to make full 
and fair proof. While an objection of hearsay or insuffi­
cient time might be made with respect to affidavits certainly 
no such objection is tenable with respect to witnesses. It 
is normally expected that they will be heard and a full 
opportunity to cross examine them is, of course, always 
granted.

In view of appellees’ failure to traverse even the affidavit 
which had been before them or to produce witnesses in 
opposition to it, it seems inappropriate for them to argue 
that if they had known that witnesses would be presented



28

—which they reasonably might have expected—they would 
have been prepared in some other manner.

Of course the opportunity to present witnesses, it may 
be argued, was not flatly denied, but merely denied at 
that time. It might have been that at some later date the 
court would have permitted witnesses to appear on the 
motion for preliminary injunction, or such an inference 
at least may be urged. However, appellees had notice of 
a hearing which implies that testimony may be taken. 
Moreover, appellant had waited six months for hearing 
on his motion for preliminary injunction. Further delay 
would for all practical purposes have completely defeated 
the purpose which a preliminary injunction is to serve, 
that is, according speedy relief.

While, it is submitted, on appellant’s uncontroverted 
affidavit alone it was an abuse of discretion to deny appel­
lant his preliminary injunction, further ground for reversal 
exists in the fact that appellant was denied a complete 
hearing by the arbitrary exclusion of his witness’ testimony.

W herefore fo r the foregoing reasons it is respectfully 
submitted tha t the judgm ent below should be reversed.

Respectfully submitted,

L incoln C. J enkins, J r.
1107% Washington Street 

Columbia, South Carolina

T hurgood Marshall
J ack G r e e n b e r g  

10 Columbus Circle 
New York, New York

A t to r n e y s  f o r  A p p e l la n t



APPENDIX TO APPELLANT’S BRIEF



la

HttM States SiHtrirt (Umirt
F oe the W estern District of South Carolina 

Greenville Division

R ichard B. H enry,

-v.-
Plaintiff,

Greenville A irport Commission ; 0. L. A ndrews, Manager, 
Greenville Municipal A irport; W illiam T. A dams, 
Chairman, Greenville A irport Commission and H ugh 
K. A iken ; Olin H. Spann ; E dward McGrady ; W illiam 
B. Coxe, Members of the Greenville A irport Commis­
sion,

Defendants.

Complaint
1. (a) The jurisdiction of this Court is invoked under 

Title 28, United States Code, Section 1331 as this action 
arises under Article I, Section 8 and the Fourteenth Amend­
ment of the Constitution of the United States, Section 1; 
and Title 42, United States Code, Section 1981 and the 
matter in controversy exceeds, exclusive of interest and 
costs, the sum or value of Ten Thousand ($10,000.00) Dol­
lars.

(b) The jurisdiction of this Court is also invoked under 
Title 28, United States Code, Section 1343. This action is 
authorized by Title 42, United States Code, Section 1983 to 
be commenced by any citizen of the United States or other 
person within the jurisdiction thereof to redress the depri­
vation, under color of a state law, statute, ordinance, regula­
tion, custom or usage, of rights, privileges and immunities



2a

secured by the Fourteenth Amendment of the Constitution 
of the United States, Section 1, and by Title 42, United 
States Code, Section 1981, providing for the equal rights 
of citizens and of all persons within the jurisdiction of 
the United States.

(c) The jurisdiction of this Court is invoked under Title 
28, United States Code, Section 1332, plaintiff being a 
citizen of the State of Michigan and defendants being 
citizens of the State of South Carolina and the matter in 
controversy exceeding the sum or value of Ten Thousand 
($10,000.00) Dollars exclusive of interest and costs.

2. Plaintiff brings this action pursuant to Rule 23(a)(3) 
of the Federal Rules of Civil Procedure for himself and on 
behalf of all other Negroes similarly situated, whose num­
bers make it impracticable to bring them all before the 
court; they seek common relief based upon common ques­
tions of law and fact.

3. Plaintiff, Richard B. Henry, is a resident of the City 
of Ferndale and State of Michigan and a citizen of the 
United States. He is a civil service employe of the United 
States Air Force at Headquarters Tenth Air Force, Self­
ridge Air Force Base, Michigan. In such capacity he is 
required to travel about the United States. His travels 
have taken him to the Greenville, South Carolina Airport 
and it is reasonably expected that they will take him there 
again.

4. (a) Defendant, Greenville Airport Commission, is a 
commission created by the Acts and Joint Resolutions of 
the General Assembly of the State of South Carolina, No. 
919 (1928), a copy of which is appended to this complaint as 
Exhibit “A”. Said commission is a governmental body of 
the State of South Carolina, and operates the Greenville, 
South Carolina Airport.

C o m p la in t



3a

(b) Defendant 0. L. Andrews is manager of the Green­
ville Municipal Airport.

(c) Defendant William T. Adams is chairman of the 
Greenville Airport Commission.

(d) Defendants Hugh K. Aiken, Olin H. Spann, Edward 
McCrady and William B. Coxe are members of the Green­
ville Airport Commission.

5. Plaintiff alleges on information and belief that said 
Greenville Airport Commission has from time to time re­
ceived substantial sums of money from the government of 
the United States for the purposes of constructing sub­
stantial portions of and maintaining operations at the 
Greenville Municipal Airport.

6. Early in November, 1958, plaintiff was at Donaldson 
Air Force Base near Greenville, South Carolina on Air 
Force business. When it was time for him to return to 
Michigan the Air Force travel officer arranged his ticket 
reservations, and plaintiff arrived at the Greenville Air 
Terminal at about 4:20 P. M., Friday, November 7, 1958. 
Before boarding his plane, which was scheduled for a 5 :21 
P. M. take-off, plaintiff seated himself in the waiting room. 
Shortly thereafter the manager of the Greenville Airport 
ordered plaintiff out, advising him that “we have a waiting 
room for colored folks over there.” Plaintiff informed him 
that he was an interstate traveler and that plaintiff believed 
that said manager’s action was in violation of federal law 
and ICC regulations. Nevertheless, said manager insisted 
that plaintiff go. As a consequence plaintiff was required 
to be segregated.

7. Requiring plaintiff to be segregated denied to him 
rights guaranteed by the equal protection clause of the

C o m p la in t



4a

Fourteenth Amendment to the United States Constitution, 
and by the due process clause of the Fifth Amendment to 
the United States Constitution, and constituted a burden on 
interstate commerce forbidden by Article I, Section 8 of the 
United States Constitution.

W herefore plaintiff and those similarly situated suffer 
and are threatened with irreparable injury by the acts 
herein complained of. They have no plain, adequate or 
complete remedy to redress these wrongs other than this 
suit for an injunction. Any other remedy would be at­
tended by such uncertainties and delays as to deny sub­
stantial relief, would involve multiplicity of suits, cause 
further irreparable injury and occasion damage, vexation 
and inconvenience, not only to the plaintiff and those sim­
ilarly situated, but to defendants as governmental agencies.

A nd wherefore plaintiff respectfully prays that this 
Court enter interlocutory and permanent injunctions re­
straining defendants from making any distinction based 
upon color in regard to service at the Greenville Municipal 
Airport; and that the court allow plaintiff his costs and 
such other relief as may appear to the court to be just.

Respectfully submitted,

L incoln C. J enkins, J r.
11071/2 Washington Street 
Columbia, South Carolina

Thurgood Marshall
J ack Greenberg

10 Columbus Circle 
New York 19, New York

C o m p la in t

A t to r n e y s  f o r  P la in t i f f



5a

EXHIBIT “A” ANNEXED TO COMPLAINT

ACTS AND JOINT RESOLUTIONS 
of the

GENERAL ASSEMBLY 
of the

State of South Carolina 
Passed At The Regular Session Of 1928

No. 919

A n A ct to Create an Airport Commission for the City and 
County of Greenville and define its Powers and Duties 
and to Authorize the City of Greenville to make Certain 
Donations to Said Commission.

Section 1. G r e e n v il l e  A ir p o r t  C o m m is s io n -—-Ap p o in t ­
m e n t — Be it enacted by the General Assembly of the State 
of South Carolina: There is hereby created a Commission 
for the City and County of Greenville, to be known as 
Greenville Airport Commission. This Commission shall 
consist of five members to be selected as follows: T wto by 
the City Council of the City of Greenville; two by the 
Greenville County Delegation in the General Assembly and 
one to be selected by a majority vote of the four selected 
as hereinabove provided.

Section 2. T e r m s— That the term of office of the members 
of this Commission shall be as follows: The two appointed 
by the Greenville County Delegation shall serve for a 
period of two years; the two appointed by the City Council 
shall serve for a period of four years; and the one selected 
by this Commission shall serve for a period of six years;



6a

and at the expiration of the terms of office of the Commis­
sion as hereinabove selected, the term of office of each 
Commissioner shall be for a period of two years and until 
his successor is appointed and qualifies.

Section 3. Chairman—The Commission herein appointed 
shall select one of its number as Chairman.

Section 4. P owers—The Commission herein created is 
hereby vested with the power to receive any gifts or do­
nations from any source, and also to hold and enjoy prop­
erty, both real and personal, in the County of Greenville, 
as granted to individuals under the laws of this State, for 
the purpose of establishing and maintaining aeroplane 
landing fields and county parks in the County of Green­
ville; and to make such rules and regulations as may be 
necessary in the conduct and operation of said aeroplane 
landing fields and county parks.

Section 5. City op Greenville May A id—The City of 
Greenville is hereby empowered and authorized to appro­
priate and donate to said Commission such sums of money 
as it may deem expedient and necessary for the purposes 
aforesaid.

Section 6. Abandonment op A irport—That in ease the 
property acquired by the Commission as aforesaid shall 
cease to be used for the purposes herein provided, then all 
of the said property, both real and personal, may be sold 
by the Commission and converted into cash and said pro­
ceeds shall be divided among the City of Greenville, the 
County of Greenville, the Park and Tree Commission of 
the City of Greenville, and the American Legion organiza­
tion of the County of Greenville, in equal proportion, and

E x h ib i t  “A ” A n n e x e d  to  C o m p la in t



7a

to that end the said Commission is hereby authorized by 
such officers as it may designate to make, execute and 
deliver deed or deeds of conveyance to any and all of said 
property.

Section 7. All Acts or parts of Acts inconsistent herewith 
are hereby repealed.

Section 8. This Act shall take effect immediately upon its 
approval by the Governor.

Approved the 10th day of March, A.D. 1928.

E x h ib i t  “A ” A n n e x e d  to  C o m p la in t



8a

UNITED STATES DISTRICT COURT 
F oe the W estern District of South Carolina 

Greenville Division

M otion for  Prelim inary Injunction

[same title]

Plaintiff moves the court to grant a preliminary injunc­
tion against defendants and each of them and their agents, 
servants and attorneys and all persons in active concert 
and participation with them pending the final determina­
tion of this action and until the further order of this court 
restraining them from making any distinctions based upon 
color in regard to service at the Greenville Municipal Air­
port on the grounds that unless restrained by this court 
defendants will commit the acts referred to which will 
result in irreparable injury, loss and damage to plaintiff 
during the pendency of this action, as more fully appears 
from the affidavit of plaintiff attached hereto and made a 
part hereof.

L incoln C. J enkins, J r .
1107% Washington Street 
Columbia, South Carolina

T hurgood Marshall
J ack Greenberg 

10 Columbus Circle 
New York 19, New York

A t to r n e y s  f o r  P la in t i f f .



9a

UNITED STATES DISTRICT COURT 
F ob the W estern District of South Carolina 

Greenville Division

Affidavit o f  R ichard B . H enry

[ sa m e  t it l e ]

R ichard B. H enry being duly sworn hereby deposes and 
say s :

1. He is the plaintiff in the above-entitled case.

2. This is an action for interlocutory and permanent 
injunction to restrain defendants from making any dis­
tinctions based upon color at the Greenville Municipal 
Airport.

3. Plaintiff is a resident of the City of Ferndale, Michi­
gan and a citizen of the United States.

4. Plaintiff is a civilian employe of the United States 
Air Force at Headquarters Tenth Air Force, Selfridge Air 
Force Base, Michigan. In such capacity his travels take 
him about the country, have taken him to the Greenville 
Air Terminal and may be expected to take him there again.

5. Plaintiff is informed that defendant Greenville Air­
port Commission is a commission created by the laws of 
the State of South Carolina, that it operates the Greenville 
Municipal Airport and that the chairman of said commis­
sion is William T. Adams; Hugh K. Aiken, Olin H. Spann, 
Edward McCrady and William B. Coxe are members of 
the Greenville Airport Commission. Plaintiff is further



10a

informed that 0. L. Andrews is Manager of said Green­
ville Municipal Airport.

6. Early in November, 1958, plaintiff was at Donaldson 
Air Force Base, near Greenville, South Carolina on Air 
Force business. When it was time for him to return to 
Michigan the Air Force travel officer arranged his ticket 
reservations, and plaintiff arrived at the Greenville Air 
Terminal at about 4:20 P.M., Friday, November 7, 1958.

7. Before boarding his plane, which was scheduled for 
a 5 :21 P.M. take-off, plaintiff seated himself in the waiting 
room. Shortly thereafter a man purporting to be the man­
ager ordered plaintiff out, advising him that “we have a 
waiting room for colored folks over there.” Plaintiff in­
formed him that he was an interstate traveler and that 
plaintiff believed that said manager’s action was in viola­
tion of federal law and ICC regulations. Nevertheless, 
said manager insisted that plaintiff go. As a consequence 
plaintiff was required to be segregated.

8. The reason why plaintiff will suffer great irreparable 
damage unless this injunction is granted is that he reason­
ably expects during the course of his employment in the 
United States Air Force that his travels will, on future 
occasions, take him to the Greenville Municipal Airport 
and that to be denied the opportunity to use said airport 
without being subjected to racial discrimination is a denial 
of his constitutional rights and a gross inconvenience in 
the course of his interstate travels.

A f f id a v i t  o f  R ic h a r d  B . H e n r y

R ichard B. H enry



11a

UNITED STATES DISTRICT COURT 
F oe the Western District of South Carolina 

Greenville Division 

Civil Action No. 2491

M otion to Strike

[ same title]

T o H onorable George Bell T immerman, U nited States 
D istrict J udge for the E astern and W estern Districts 
of South Carolina :

The defendants, under the provisions of Rule 12 (f) of 
the Federal Rules of Civil Procedure, Title 28, move to 
strike certain allegations of the Complaint of the plaintiff 
in the above entitled case, to-wit:

“1. (a) The jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1331 as this action 
arises under Article I, Section 8 and the Fourteenth 
Amendment of the Constitution of the United States, Sec­
tion 1; and Title 42, United States Code, Section 1981 and 
the matter in controversy exceeds, exclusive of interest 
and costs, the sum or value of Ten Thousand ($10,000.00) 
Dollars.”

“1. (c) The jurisdiction of this Court is invoked under 
Title 28, United States Code, Section 1332, plaintiff being 
a citizen of the State of Michigan and defendants being 
citizens of the State of South Carolina and the matter in 
controversy exceeding the sum or value of Ten Thousand 
($10,000.00) Dollars exclusive of interest and costs.”



12a

“2. Plaintiff brings this action pursuant to Rule 23 
(a) (3) of the Federal Rules of Civil Procedure for him­
self and on behalf of all other Negroes similarly situated, 
whose numbers make it impracticable to bring them all 
before the court; they seek common relief based upon com­
mon questions of law and fact.”

“5. Plaintiff alleges on information and belief that said 
Greenville Airport Commission has from time to time re­
ceived substantial sums of money from the government 
of the United States for the purposes of constructing sub­
stantial portions of and maintaining operations at the 
Greenville Municipal Airport.”
on the ground that it appears upon the face of the Com­
plaint that the said allegations are immaterial.

s/ T homas A. W offord

214 Masonic Temple 
Greenville, South Carolina

L ove, T hornton & Arnold 
By: s/ W. H. Arnold

103 Lawyers Building 
Greenville, South Carolina

Attorneys for the Defendants.

M o tio n  to  S t r i k e



13a

UNITED STATES DISTRICT COURT 
F oe the W estern District of South Carolina 

Greenville Division 

Civil Action No. 2491

M otion to D ism iss

[ same title]

To H onorable George Bell T immerman, U nited States 
D istrict J udge for the E astern and Western Districts 
of South Carolina :

The defendants in the above entitled case under the 
provisions of Rule 12 (b) (1) and (6) of the Federal Rules 
of Civil Procedure, Title 28, move to dismiss the Com­
plaint in the above entitled action on the grounds:

(1) That the Court has no jurisdiction of the subject 
matter of the action;

(2) That the Complaint fails to state a claim upon which 
relief can be granted.

s/ T homas A. W offord
214 Masonic Temple 
Greenville, South Carolina

L ove, T hornton & Arnold 
By: s/ W. H. Arnold

103 Lawyers Building 
Greenville, South Carolina

A t to r n e y s  f o r  th e  D e fe n d a n ts .



14a

Renewal of Motion for Preliminary Injunction

UNITED STATES DISTRICT COURT 
F oe the W estern District oe South Carolina 

Greenville Division

[ sa m e  t it l e ]

On January 20, 1959, Plaintiff filed a motion for Pre­
liminary Injunction herein. No action having been taken 
on said motion Plaintiff hereby renews his prayer there­
for.

Plaintiff moves the court to grant a preliminary injunc­
tion against defendants and each of them and their agents, 
servants and attorneys and all persons in active concert 
and participation with them pending the final determina­
tion of this action and until the further order of this court 
restraining them from making any distinctions based upon 
color in regard to service at the Greenville Municipal Air­
port on the grounds that unless restrained by this court 
defendants will commit the acts referred to which will 
result in irreparable injury, loss and damage to plaintiff 
during the pendency of this action, as more fully appears 
from the affidavits attached hereto and made a part hereof.

/ s /  L incoln C. J enkins, J r .
L incoln C. J enkins, J r.

1107% Washington Street 
Columbia, South Carolina

T httrgood Marshall

J ack Greenberg

10 Columbus Circle 
New York 19, New York

A t to r n e y s  f o r  P la in t i f f .



15a

UNITED STATES DISTRICT COURT 
F ob the W estern District oe South Carolina 

Greenville Division

Affidavit o f  Richard B. H enry

[ sa m e  t it l e ]

R ichard B. H enry being duly sworn hereby deposes and 
says:

1. He is the plaintiff in the above-entitled case.

2. This is an action for interlocutory and permanent 
injunction to restrain defendants from making any distinc­
tions based upon color at the Greenville Municipal Air­
port.

3. Plaintiff is a resident of the City of Ferndale, Michi­
gan and a citizen of the United States.

4. Plaintiff is a civilian employe of the United States 
Air Force at Headquarters Tenth Air Force, Selfridge 
Air Force Base, Michigan. In such capacity his travels 
take him about the country, have taken him to the Green­
ville Air Terminal and may be expected to take him there 
again.

5. Plaintiff is informed that defendant Greenville Air­
port Commission is a commission created by the laws of 
the State of South Carolina, that it operates the Green­
ville Municipal Airport and that the chairman of said 
commission is William T. Adams; Hugh K. Aiken, Olin



16a

H. Spann, Edward McCrady and William B. Coxe are 
members of the Greenville Airport Commission. Plaintiff 
is further informed that 0. L. Andrews is Manager of said 
Greenville Municipal Airport.

6. Early in November, 1958, plaintiff was at Donaldson 
Air Force Base, near Greenville, South Carolina on Air 
Force business. When it was time for him to return to 
Michigan the Air Force travel officer arranged his ticket 
reservations, and plaintiff arrived at the Greenville Air 
Terminal at about 4:20 P.M., Friday, November 7, 1958.

7. Before boarding his plane, which was scheduled for 
a 5:21 P.M. Take-off,, plaintiff seated himself in the wait­
ing room. Shortly thereafter a man purporting to be the 
manager ordered plaintiff out, advising him that “we have 
a waiting room for colored folks over there.” Plaintiff 
informed him that he was an interstate traveler and that 
plaintiff believes that said manager’s action wras in viola­
tion of federal law and ICC regulations. Nevertheless, 
said manager insisted that plaintiff go.

8. That on July 19, 1959, plaintiff arrived at the Green­
ville Airport on Eastern Airlines Flight 391. While wait­
ing in the Greenville Municipal Airport waiting room the 
defendant Andrews approached the plaintiff and informed 
him that separate portion of said waiting room was desig­
nated for “colored passengers”. A sign containing the 
word “Colored” was over said portion of the waiting room 
and defendant Andrews directed plaintiff thereto. Plain­
tiff refusing to be segregated thereupon left the terminal 
building and awmited his flight Eastern Airline Flight 783 
to Charlotte outside of the terminal building.

A ff id a v i t  o f  R ic h a r d  B . H e n r y



17a

9. The reason why plaintiff will suffer great irreparable 
damage unless this injunction is granted is that he rea­
sonably expects during the course of his employment in 
the United States Air Force that his travels will, on future 
occasions, take him to the Greenville Municipal Airport 
and that to be denied the opportunity to use said airport 
without being subjected to racial discrimination is a denial 
of his constitutional rights and a gross inconvenience in 
the course of his interstate travles.

/ s /  R ichabd B. H enby 
Richard B. Henry

(Sworn to July 20, 1959.)

A ffid a v it  o f  R ic h a r d  B . H e n r y



18a

UNITED STATES DISTRICT COURT 
F oe the W estern District oe South Carolina 

Greenville Division

Affidavit o f  Freda A. M cPherson

{sa m e  t it l e ]

F reda A. McP herson being duly sworn hereby deposes 
and says:

That she is a citizen of the United States, a resident of 
Greenville, South Carolina and a member of the Negro 
Race:

Approximately two years ago, Helen Edmonds, who was 
employed by the United States State Department was the 
guest speaker for Delta Sigma Beta Sorority Founder’s 
Day, in Greenville, South Carolina. After the speech we 
carried her to Greenville’s Municipal Airport to see her 
off to Charlotte. The plane was delayed for approximately 
an hour and twenty minutes. There was a group of us, 
all Negroes, who accompanied her to the airport to, of 
course, wish her well and thank her for the beautiful 
speech that she rendered. While standing there it seemed 
that someone nearby called the manager. In the mean­
time, after about forty-five minutes most of the group left 
and left Mrs. Edmonds and one other person there, since 
they still had forty-five minutes to wait. They seated 
themselves in the two chairs which were nearest the lobby. 
The station manager came over to them and didn’t say 
anything directly to them, but walked around them several 
times and looked at them and mumbled something as to



19a

his distress as to having been called to the terminal. 
About twenty minutes later two policemen came in, asked 
to speak with Mrs. Edmonds and myself and took us back 
to the room which was marked “Colored”. They wanted 
to know why we were sitting in the lobby in the so-called 
“White Waiting Room”. They explained that they have 
two waiting rooms, one for colored and one for white. 
Mrs. Edmonds reminded them of the interstate law which 
says that there should be no segregation in the air ter­
minals. It was time for the plane to come in and they did 
not further hold us and did not arrest us. But “colored” 
still remains in the colored waiting room. Since that time 
I have been there with friends, who are Negroes, on a 
number of occasions and they have been refused the ser­
vice in the restaurant. I was in the terminal two days 
ago and the “colored” sign is still up.

From time to time I travel by air from the Greenville 
Airport as do friends of mine who are Negroes, but to 
avoid embarrassment we arrive just before flight time and 
do not use any waiting room facilities at all.

F reda A. McP herson

A ffid a v it  o f  F r e d a  A .  M c P h e r s o n



20a

Order Dated September 8, 1959

UNITED STATES DISTRICT COURT 
F oe t h e  W e s t e r n  D is t r ic t  o f  S o u t h  C a r o l in a  

G r e e n v il l e  D iv is io n  

Civil Action 2491

[ sa m e  t it l e ]

The above entitled action was heard by me on July 20, 
1959, on motions of the plaintiff and the defendants. After 
hearing arguments by counsel for both parties, this Court 
denied the plaintiff’s motion for preliminary injunction 
and granted the motions of the defendants, the reasons 
for which are fully set out in the written opinion of this 
Court dated August 4, 1959.

I t is t h e r e f o r e  ordered  that the plaintiff’s motion for 
a preliminary injunction be and the same is hereby denied 
and the defendants’ motions to strike paragraphs 1(a), 
1(c), 2 and 5 of the complaint and to dismiss the complaint 
be and the same are hereby granted.

IT  IS SO ORDERED.

/ s /  Geo. Bell T immerman 
United States District Judge

September 8th, 1959.



21a

Excerpts from  Transcript o f  P roceedings,
July 2 0 , 1 9 5 9

— 3
# # * # *

Mr. Jenkins: Thank you sir. At this time, if Your Honor 
please, plaintiff would like to renew his motion for a pre­
liminary injunction based upon the affidavits previously 
submitted, together with the affidavits which we will now 
submit.

The Court: All right, you may file your affidavits. Have 
you served the other side with them?

Mr. Jenkins: Yes sir.
The Court: When?
Mr. Jenkins: Just now, Your Honor, I have served them 

with a copy.
The Court: Does defense counsel wish time to consider 

them and file counter-affidavits?
Mr. Wofford: If Your Honor please, the motion for the 

preliminary injunction mentions nothing about any fur­
ther affidavits to be filed. They apparently didn’t have any 
further affidavits in mind. I haven’t had an opportunity

—4—
to read what they say in this last affidavit. They refer 
particularly in their motion for a preliminary injunction 
to the affidavit of the plaintiff which was attached and 
made a part of their original.

The Court: They made it a part of it, saying based upon 
the affidavit attached?

Mr. Wofford: Yes sir. And we have no objection to 
proceeding on that affidavit because that is the only affi­
davit that we have any notice of, Your Honor.

The Court: That was the affidavit of the plaintiff?
Mr. Wofford: At that time, yes sir. And at no place as 

I read their Pleading did they say it would be taken upon



22a

further affidavits or upon actual testimony to be taken 
at the trial. And I ain quite sure that, if they had been, 
at that time, relying upon further affidavits, they would 
have so stated and asked that any reply affidavits be fur­
nished them at least twenty four hours or forty eight hours 
before this hearing. Now, to come to a hearing, to this 
Court, and rely upon affidavits as they say—

The Court: Oh, I agree with you about that. No use 
to argue that point. People can’t make motions and 
predicate it upon one statement of fact and then, at the 
time of the hearing, change horses.

—5—
Mr. Wofford: We make a motion, Your Honor, at this 

time, to consider the case upon the records as they have 
heretofore been submitted to the Court. And failing in 
that, Your Honor, if the other affidavits are admitted at 
this time, and they seek to use them as part of the record 
from which to argue their motion for a preliminary injunc­
tion, we move for a continuance of the matter in order 
to give us at least a reasonable opportunity to see what 
they say in these affidavits. I don’t know what they say. 
I haven’t read them, Your Honor. He handed them to me 
at the same time that he handed them to the Court. I 
haven’t had an opportunity to read what they say, nor 
affirm who made them.

The Court: Oh, I wouldn’t force you to a trial without 
giving you an opportunity to consider the affidavits and 
reply to them. How about the other motions. Are you 
ready to proceed with those?

Mr. Wofford: We would like to take up, Your Honor, 
in order, the motions made by the defendant, first taking 
up the motion to strike.

E x c e r p t s  f r o m  T r a n s c r ip t  o f  P r o c e e d in g s ,
J u l y  20, 1959



23a

Mr. Greenberg: Excuse me, Your Honor. May I inter­
rupt. May I ask a question please? Does this mean that 
Your Honor will not hear the motion for a preliminary 
injunction?

The Court: No, I will not. Not based upon the affidavits
— 6—

that you have filed. If you want to go ahead without these 
late ones, I will consider it.

Mr. Greenberg: Well, Your Honor, we have also brought 
here witnesses who can testify to the same things that are 
in the affidavits and will be subject to cross-examination. 
And, under the Federal Rules, Your Honor may certainly 
hear evidence taken on a motion for preliminary injunc­
tion. And we have these witnesses ready to present at 
this time.

The Court: I realize that I may do that. I also realize 
that it could aid one side or the other to get an advantage 
that they are not entitled to. I don’t intend being a party 
to that.

Mr. Greenberg: Well, if it please the Court, I don’t see 
how it gives our side an advantage by placing a witness—

The Court: You are asking for a certain relief and you 
have the burden of establishing it. The other side is en­
titled to reply. They cannot reply if they do not know 
what they are expected to reply to in advance.

Mr. Greenberg: Well, we have witnesses to put on the 
stand whom the other side can cross-examine and in op­
position to whom they can offer rebuttal testimony if they 
have any.

The Court: So far as this is concerned, if they had had
—7—

notice that you expected to put up witnesses at this time,

E x c e r p t s  f r o m  T r a n s c r ip t  o f  P r o c e e d in g s ,
J u l y  20, 1959



24a

or to file additional affidavits, they could have immediately 
availed themselves of discovery procedures and found out 
what it was all about before the hearing was had. But 
your notice indicates—in fact it states, specifically, that 
the motion is made upon one affidavit.

Mr. Greenberg: Your Honor yes, but Your Honor cer­
tainly may hear evidence and these witnesses are here to 
present—

The Court: Sure I may, and I will upon sufficient notice 
to the opposite side to be ready for it. No use to argue 
that. I have decided that. Are you ready to go ahead 
with the other motions.

Mr. Greenberg: Pardon me?
The Court: Are you ready for a hearing on the other 

motions l
Mr. Greenberg: Yes. We are also ready for hearing on 

the motion for preliminary injunction and, if Your Honor 
insists—

The Court: Well, I have told you that I am not going 
to hear that, so that ends that.

Mr. Greenberg: I would merely like to add, if Your 
Honor insists on hearing it solely on the affidavit which is 
attached—

The Court: No, I do not insist on anything; I said
—8—

if you want it, I would hear it that way.
Mr. Greenberg: If we cannot have it heard on all the 

testimony and affidavits we desire to present, then we 
would have to have it heard solely on that single affidavit.

The Court: No, you don’t have to. I will give you time.
Mr. Greenberg: Well, Your Honor, we will submit to 

having it heard on that single affidavit at this time.

E x c e r p t s  f r o m  T r a n s c r ip t  o f  P r o c e e d in g s ,
J u l y  20, 1959



25a

The Court: All right, go ahead.
#  *  *  *  #

— 36—

* # # % *
Mr. Greenberg: May it please the Court, at this point 

we would like to renew our objection to the exclusion of 
the testimony of the witnesses we have here today, and 
to proffer to the Court that if they were permitted to 
testify, they would testify to the effect as stated. They 
would testify to the substance that appears in the affi­
davits which were filed here today.

The Court: Anything further?
* * * * *

— 39—

* * * * *
The Court: If there is nothing further, the Court will 

refuse the motion for a preliminary injunction. I think 
if the Court accepts as true every well-pleaded fact in the 
case that it would not warrant such action. As to the other 
part of it, I want to think about it a little bit. That is the 
motions made by counsel for the defendant. I will later 
embody my reasons probably a little more fully for deny­
ing the preliminary injunction when I dispose of the other 
motions that have been argued here today. The Court 
will stand in recess.

E x c e r p t s  f r o m  T r a n s c r ip t  o f  P r o c e e d in g s ,
J u l y  20, 1959

I certify that the foregoing is a correct transcript of 
my notes.

B. D. Cook 
Official Reporter



26a

UNITED STATES DISTRICT COURT

O pin ion  o f  H on. G eorge B ell T im m erm an, U .S .D .J .

F ob t h e  W e s t e r n  D is t r ic t  o f  S o u t h  C a r o l in a

G r e e n v il l e  D iv is io n

C/A 2491

[ s a m e  t it l e ]

Motions in the above stated case were heard on July 20, 
1959, at Columbia, South Carolina. There was, on behalf 
of the plaintiff, a motion for a preliminary injunction, and, 
on behalf of the defendants, motions to strike paragraphs 
1(a), 1(c), 2 and 5 of the complaint, “on the ground it ap­
pears upon the face of the complaint that the said allega­
tions are immaterial” ; and a motion to dismiss the com­
plaint, on the grounds “ (1) That the Court has no jurisdic­
tion of the subject matter of the action” and “ (2) That the 
complaint fails to state a claim upon which relief can be 
granted”. The motion to dismiss is under Rule 12(b)(1) 
and (6) of the Federal Rules of Civil Procedure.

P l a i n t if f ’s M o t io n  f o r  P r e l im in a r y  I n j u n c t i o n

This motion was filed January 24, 1959. When it was 
called for hearing, July 20, 1959, counsel for plaintiff of­
fered two additional affidavits for use on the hearing and 
at that time furnished copies for the first time to counsel 
for the defendants, who objected to the use of the affidavits 
on the hearing because they had had no time to read or to 
prepare a reply to them. The Court ruled that it would 
continue the hearing of the motion to give the defendants 
an opportunity to read the affidavits and reply thereto, un­



27a

less plaintiff was willing to proceed with the hearing on 
the original motion and supporting affidavit. Counsel for 
the plaintiff agreed to proceed without the proferred af­
fidavits being considered. Therefore, the affidavits were not 
considered by the Court on the hearing of the motion.

The purpose of the plaintiff’s motion is to restrain the 
defendants “from making any distinction based upon color 
in regard to services at the Gfreenville Municipal Airport”. 
The motion is based on the stated conclusion of the plaintiff, 
“that unless restrained by this court defendants will com­
mit the acts referred to which will result in irreparable 
injury, loss and damage to plaintiff during the pendency 
of this action, as will more fully appear from the affidavit 
of plaintiff attached hereto and made a part hereof”. The 
only acts attributed to any of the defendants in plaintiff’s 
complaint are contained in paragraph 6 thereof. Therein it 
is stated, (a) “ * * * the manager of the Greenville Airport 
ordered plaintiff out, advising him that ‘we have a waiting 
room for colored folks over there’” ; and (b) “plaintiff in­
formed him that he was in interstate traveler and that 
plaintiff believed that said manager’s action was in viola­
tion of federal law and ICC regulations. Nevertheless, said 
manager insisted that plaintiff go. As a consequence plain­
tiff was required to be segregated”.

As noted above, plaintiff’s motion for injunction is based 
upon his own affidavit. Omitting the formal parts of the 
affidavit the rest of it may be summarized as follows:

1. That he is the plaintiff in this case.
2. That he resides in the State of Michigan and is a 

citizen of the United States.
3. That he is a civilian employee of the United States 

Air Force at Selfridge Air Force Base in the State 
of Michigan.

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4. That he was sent from Michigan to the Donaldson Aii* 
Force Base near Greenville, South Carolina.

5. That in preparation for his return to Michigan an 
official at the Donaldson Air Force Base procured air 
travel tickets for him on a flight schedule to leave 
Greenville Air Terminal Friday, November 7, 1958, 
at 5:21 P.M.

6. That one hour and one minute before the scheduled 
flight of his plane plaintiff went to the Greenville Air 
Terminal and selected and occupied a seat, for an 
hour’s wait, in what he regarded as the white section 
of the waiting rom there.

7. That “a man purporting to be the manager ordered 
plaintiff out, advising him ‘we have a waiting room 
for colored folks over there’ ”. Whereupon “plaintiff 
informed him that he was in interstate traveler and 
that plaintiff believed that said manager’s action was 
in violation of federal law and ICC regulations”.

8. That it is plaintiff’s opinion that he “will suffer great 
irreparable damage” if the preliminary injunction is 
not granted and that the reason for his apprehension 
is “that he reasonably expects during the course of 
his employment * * # that his travels will, on future 
occasions, take him to the Greenville Municipal Air­
port”.

9. That the Greenville Airport Commission was created 
by an Act of the Legislature of the State of South 
Carolina in 1928, “for the purpose of establishing and 
maintaining aeroplane landing fields and county parks 
in the county of Greenville; and to make such rules 
and regulations as may be necessary in the conduct



29a

and operation of said aeroplane landing fields and
county parks”.

Plaintiff’s affidavit as drawn makes it well-nigh impos­
sible to segregate factual statements from surmises and 
opinions; but giving the affidavit most favorable considera­
tion it falls short of indicating any necessity for a prelimi­
nary injunction to protect any legitimate right the plaintiff 
has. According to his affidavit and his complaint it is by 
no means certain that he will ever return to the Greenville 
Airport, although he surmises that he may return at some 
time in the future. The plaintiff speaks of discrimination 
without unequivocally stating any fact warranting an in­
ference of discrimination. The nearest thing to an un­
equivocal statement in his affidavit is the asserted fact that 
the purported manager of the Greenville Air Terminal 
“advised him that ‘we have a waiting room for colored 
folks over there’ ”. Preceding that statement plaintiff’s af­
fidavit contains the bald assertion that the manager “or­
dered me out”. However, the only words attributed to the 
manager by the plaintiff hardly warrant any such inference 
or conclusion. A like comment properly should be made 
concerning the further assertion in plaintiff’s affidavit that 
he “was required to be segregated”. What that loose ex­
pression means is anyone’s guess. From whom was he 
segregated! The affidavit doesn’t say. Was he segregated 
from his family or from his friends, acquaintances or as­
sociates, from those who desired his company and he theirs? 
There is nothing in the affidavit to indicate such to be true. 
Was he segregated from people whom he did not know 
and who did not care to know him? The affidavit is silent 
as to that also. But suppose he was segregated from people 
who did not care for his company or association, What

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30a

civil right of his was thereby invaded? If he was trying 
to invade the civil rights of others, an injunction might be 
more properly invoked against him to protect their civil 
rights. I know of no civil or uncivil right that anyone has, 
be he white or colored, to deliberately make a nuisance of 
himself to the annoyance of others, even in an effort to 
create or stir up litigation. The right to equality before 
the law, to be free from discrimination, invests no one 
with authority to require others to accept him as a com­
panion or social equal. The Fourteenth Amendment does 
not reach that low level. Even whites, as yet, still have the 
right to choose their own companions and associates, and 
to preserve the integrity of the race with which God Al­
mighty has endowed them.

Neither in the affidavit nor in the complaint of the plain­
tiff is there any averment or allegation that whatever the 
defendants may have done to the plaintiff was done at the 
direction or under color of state law. It is nowhere stated 
in either what right the plaintiff claims was denied him 
under color of state law. A state law was passed in 1928 
that “created a Commission # * * to be known as Green­
ville Airport Commission.” That Commission consists of 
five members, two selected by the City Council of the City 
of Greenville, two by the Greenville County Legislative 
Delegation, and the fifth member by the majority vote of 
the other four. The Commission so created is “vested 
with the power to receive any gifts or donations from any 
source, and also to hold and enjoy property, both real 
and personal, in the County of Greenville, * * * for the 
purpose of establishing and maintaining aeroplane landing 
fields * * *; and to make such rules and regulations as may 
be necessary in the conduct and operation of said aeroplane 
landing fields”. (Emphasis added) Further, the Act au­

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31a

thorizes “The City of Greenville * * * to appropriate and 
donate to said Commission snch sums of money as it may 
deem expedient and necessary for the purposes aforesaid”. 
There is nothing in the Act that requires the Commission 
to maintain waiting rooms of any sort, segregated or un­
segregated.

There is nothing in the affidavit or complaint of the 
plaintiff which could be tortured into meaning that the 
defendants had denied the plaintiff the use of the author­
ized airport landing fields. He had a ticket which au­
thorized Mm to board a plane there. He was not denied 
that right. In fact there is no clear cut statement of any 
legal duty owed the plaintiff that defendants breached; 
and there is no showing that the plaintiff was damaged 
in any amount by anything done by the defendants, or 
by any one of them, under color of state law.

The motion for a preliminary injunction should be denied.

D e f e n d a n t s ’ M o t io n s  to  S t r ik e

When these motions were called for hearing, plaintiff’s 
counsel, in response to an inquiry by the Court, stated 
that this court’s jurisdiction of the instant case “is pri­
marily predicated on Title 28, U. S. Code, Section 1343, 
which provides that ‘The district courts shall have original 
jurisdiction of any civil action authorized by law to be com­
menced by any person: * * * (3) to redress the depriva­
tion, under color of any state law, statute, ordinance, reg­
ulation, custom or usage, of any right, privilege or im­
munity secured by the Constitution of the United States or 
by any Act of Congress providing for equal rights of 
citizens or of all persons within the jurisdiction of the 
United States’ ”.

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32a

The motion to strike paragraphs 1(a), 1(c), 2 and 5 of 
the complaint will be considered in the light of plaintiff’s 
stated jurisdictional position. So the question here is, Shall 
the designated paragraphs be struck on the ground that 
upon the face of them they are immaterial? Paragraph 1(a) 
invokes the jurisdiction of this court under the provisions 
of Section 1331, Title 28, U. S. Code. It provides that dis­
trict courts “shall have original jurisdiction of all civil 
actions wherein the matter in controversy exceeds the sum 
or value of $10,000.00, exclusive of interest and costs, and 
arises under the constitution, laws or treaties of the United 
States”. Under this Section two conditions must concur 
to establish jurisdiction. First, the- matter in controversy 
must exceed the sum or value of $10,000.00; and, second, the 
claim asserted must arise under the constitution or laws 
of the United States. There is not a single well pleaded 
fact that warrants the inference that the matter in contro­
versy exceeds the value of $10,000.00, exclusive of interest 
and costs. There is no allegation in the complaint that plain­
tiff was put to any extra expense or that he was humiliated 
or degraded in the presence of others by anything done by 
the defendants or any of them. Accepting his word for it, 
the only person with whom the plaintiff had any dealings 
at the time alleged in the complaint was a person to whom 
he referred as the “purported manager” of the Greenville 
Airport, and to him is ascribed these words, “we have a 
waiting room for colored folks over there”. How anyone 
could say that such a remark addressed by one person to 
another could possibly injure the person addressed more 
than the amount of $10,000.00 is inconceivable. Besides, 
plaintiff’s complaint points to no injury he sustained, and, 
claiming no injury, he could not legitimately place a value 
of more than $10,000.00 on it. If the Court should supply 
the inference that he was damaged in some way to some

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33a

extent, not an unusual procedure in some courts on occa­
sions, it would still be left to speculation as to what is the 
actual amount in controversy. The mere fact that the con­
troversy presented arises under the constitution or laws 
of the United States, if that should be accepted as a fact, 
would not be sufficient to establish the court’s jurisdiction. 
There would still exist the insurmountable obstacle of lack 
of the jurisdictional amount in controversy.

Paragraph 1(c) of the complaint, which defendants also 
ask the Court to strike, invokes the jurisdiction of the 
Court under Section 1332, Title 28, U. S. Code. Jurisdic­
tion under this Section cannot be invoked, even if diversity 
is shown, since the amount in controversy is not in excess 
of $10,000.00, exclusive of interest and costs. Here again 
jurisdiction fails because the requisite jurisdictional amount 
is not in controversy. Plaintiff doesn’t even ask that he 
be awarded damages in any amount, much less in an amount 
in excess of $10,000.00, exclusive of interest and costs.

Paragraph 2 of the complaint alleges nothing more than 
that the action is brought pursuant to Eule 23(a)(3) of 
Federal Eules of Civil Procedure on behalf of the plaintiff 
and all other negroes similarly situated, without even al­
leging that there are others similarly situated. About him­
self the plaintiff says, he is a resident of the State of 
Michigan, a citizen of the United States, a civilian em­
ployee of the Government, with a civil service rating, and 
that he may some day return to the Greenville Airport. 
And all that he alleges about a class action is that he 
“brings this action pursuant to Eule 23(a) (3) of the Federal 
Eules of Civil Procedure for himself and on behalf of all 
other negroes similarly situated, whose number make it 
impracticable to bring them all before the court; they seek 
common relief based upon common questions of law and 
fact”.

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34a

There is no allegation in the complaint that the defend­
ants have ever done or threatens to do anything that is 
actionable to any negro other than the plaintiff. Moreover, 
there is no allegation that other negroes have been accorded 
unequal treatment at the Airport, that the defendants 
are impecunious, or that, for any other reason, they can­
not be made to respond in damages for any civil wrong 
that they, or any of them, may have done or may hereafter 
do to the plaintiff or to any other negro.

The most that can be said of this case as a class action 
is, that it belongs to that class sometimes denominated 
“Spurious Class Suits” ; and, since no other negro has asked 
to be made a party to it, this action can be classed as nothing 
more than a suit by the plaintiff for the benefit of himself. 
The instant case is quite similar to Jinks, et al. v. Hodge, 
11 F. E. D. 346, the big difference being that the cited case 
was for injunctive relief and to recover for a tort, while 
the instant case is solely for an injunction. Judge Darr 
held the Jinks Case to be “what Professor Moore in his 
Federal Practice calls a Spurious Class Suit, which is a 
permissive joinder device”, adding that:

“No persons other than the named plaintiffs have in­
tervened and this leaves the suit solely by the named 
plaintiffs. The named plaintiffs do have a question 
of law or fact common to others similarly situated but 
the right of each is distinct. The suit based upon this 
portion of the Civil Eights Act, which finds life from 
the First Section of the Fourteenth Amendment, un­
questionably gives a personal right of action to a citi­
zen of the United States. Therefore, the complaint 
is entirely insufficient for the relief claimed”.

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35a

The motion to strike paragraph 5 of the complaint is the 
last of defendants’ multiple motion to strike. All that is 
alleged in this paragraph is, that plaintiff is informed and 
believes that the defendants received contributions from 
the Government from time to time “for the purpose of 
constructing substantial portions of and maintaining opera­
tions at the Greenville Municipal Airport”. Just what the 
Government’s giving or failing to give something to en­
courage the construction of an airport has to do with a 
litigant’s claim that he has been deprived of a civil right 
under color of state law, I fail to see. The allegations of 
paragraph 5 are clearly immaterial.

D e f e n d a n t s ’ M o t io n  to  D is m is s  t h e  C o m p l a in t

This motion is made under Eule 12(b)(1) and (6), Fed­
eral Eules of Civil Procedure. It is predicated, first, upon 
the ground that this court lacks jurisdiction over the subject 
matter of the action; and, second, on the ground that the 
complaint fails to state a claim upon which relief can be 
granted.

The jurisdiction of this court is invoked by the plaintiff 
under Section 1343, Title 28, TJ. S. Code. It is appropriate, 
therefore, that we consider the extent of the jurisdiction 
that is therein conferred on this court. By it district courts 
are given jurisdiction of civil actions “ * # # to redress 
the deprivation, under color of state law, * * * of any right, 
privilege or immunity secured by the Constitution of the 
United States or by any Act of Congress providing for equal 
rights of citizens * * * ’\  Hence we must look to the com­
plaint to ascertain (1) what right plaintiff claims he has 
been deprived of, (2) secured by what constitutional provi­
sion or Act of Congress providing for equal rights of citi­
zens, and (3) under color of what state law? It is not

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36a

enough for the plaintiff to allege that he has been deprived 
of a right or a privilege. He must go further and show 
what right, or privilege, he has been deprived of, by what 
constitutional provision or act of Congress it is secured, 
and under color of what state law he has been deprived 
of his stated right. If the plaintiff fails to allege any one 
or more of the specified elements his action will fail as 
not being within the jurisdiction of this court.

As pointed out hereinabove, there is no allegation in the 
complaint that anything complained of was done under 
color of a specified state law. The Court has been pointed 
to no state law requiring the separation of the races in 
airport waiting rooms, and its own research has developed 
none. Moreover, there is no state law that has been brought 
to the Court’s attention, or that it has discovered, which 
requires the defendants, or anyone else, to maintain wait­
ing rooms at airports, whether segregated or unsegregated. 
Hence the advice which it is alleged that the “purported 
manager” of the Airport gave the plaintiff, saying, “we 
have a waiting room for colored folks over there”, could 
not have been given under color of a state law since there 
is no state law authorizing or commanding such action.

In connection with the tendered issue of the court’s juris­
diction, plaintiff claims that he has a cause of action arising 
under Section 1981, Title 42, U. S. Code. It provides:

“All persons within the jurisdiction of the United States 
shall have the same right in every state # * * to the 
full and equal benefit of all laws and, proceedings for 
the security of persons and property as is enjoyed by 
white citizens, and shall be subject to like punishments, 
pains, penalties, taxes, licenses and exactions of every 
kind * * # ”. (Emphasis added)

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37a

The undoubted purpose of Congress, in enacting Section 
1981, was to confer on negro citizens rights and privileges 
equal to those enjoyed by white citizens, and at the same 
time, to impose on them like duties and responsibilities. 
The Court’s attention has been directed to no law that con­
fers on any citizen, white or negro, the right or jjrivilege 
of stirring up racial discord, of instigating strife between 
the races, of encouraging the destruction of racial integrity, 
or of provoking litigation, especially when to do so the 
provoker must travel a great distance at public expense.

It is inferable from the complaint that there were wait­
ing room facilities at the Airport, but whether those ac­
corded the plaintiff and other negroes were inferior, equal 
or superior to those accorded white citizens is not stated. 
It is also inferable from the complaint that the plaintiff 
did not go to the waiting room in quest of waiting room 
facilities, but solely as a volunteer for the purpose of insti­
gating litigation which otherwise would not have been 
started. The Court does not and should not look with favor 
on volunteer trouble makers or volunteer instigators of 
strife or litigation. A significant feature of Section 1981, 
which by some is little noticed and often ignored, is that 
it places squarely on negroes obligations, duties and respon­
sibilities equal to those imposed on white citizens, and that 
said Section does not confer on negroes rights and privi­
leges that are superior and more abundant than those ac­
corded white citizens.

Williams v. Howard Johnson’s Restaurant, et al., argued 
before the Fourth Circuit Court of Appeals June 15, 1959, 
is in many respects similar to the instant case. As here, 
the plaintiff had a government job. He went from his 
place of public employment into the State of Virginia to 
demand that he be served in a restaurant known to him

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38a

to be operated by its owner, the defendant, solely for white 
customers. He invoked the jurisdiction of the court both 
on its equity side and on its law side for himself and for 
other negroes similarly situated. The suit was dismissed 
by the district court. Upon the hearing it was conceded 
that no statute of Virginia required the exclusion of negroes 
from public restaurants. Hence the Fourteenth Amend­
ment didn’t apply. No action was taken by the defendant 
under color of state law. Notwithstanding the absence of 
a state law applicable to the situation, the plaintiff argued 
that the long established local custom of excluding negroes 
from white restaurants had been acquiesced in by Virginia 
for so long that it amounted to discriminatory state action. 
The Appellate Court disagreed, and so do I. As pointed 
out in Judge Soper’s opinion in the Howard Johnson case, 
“This argument fails to observe the important distinction 
between activities that are required by the state and those 
which are carried out by voluntary choice and without 
compulsion by the people of the state in accordance with 
their own desires and social practices”. Further Judge 
Soper said:

“The customs of the people of a state do not constitute 
state action within the prohibition of the Fourteenth 
Amendment. As stated by the Supreme Court of the 
United States in Shelly v. Kraemer, 334 U. S. 1, 68 S. 
Ct. 836, 842 [92 L. Ed. 1161]:

“ ‘Since the decision of this Court in the Civil Eights 
Cases, 1883, 109 U. S. 3, * * * the principle has 
become firmly embedded in our constitutional law 
that the action inhibited by the first section of the 
Fourteenth Amendment is only such action as may 
fairly he said to he that of the States. That Amend­
ment erects no shield against merely private con­

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39a

duct, however discriminatory or wrongful’. (Em­
phasis supplied)”

To say that the right of one person ends where another’s 
begins has long been regarded as a truism under our system 
of constitutional government. While the rights and privi­
leges of all citizens are declared to be equal by our constitu­
tion there is no constitutional command that they be ex­
ercised jointly rather than severally; and, if there were 
such a constitutional command, the rights and privileges 
granted by the constitution would be by it also destroyed. 
A constitution so written or interpreted would be an 
anomaly.

It is concluded that, for reasons stated, the complaint 
should be dismissed and this case ended. An order for final 
judgment, in conformity with this opinion, will be signed 
on presentation.

This 4th day of August, 1959.

s /  George Bell T immerman 
United States District Judge

O p in io n  o f  E o n .  G eo rg e  B e l l  T im m e r m a n , U .S .D .J .