NAACP v. Harrison Petition for Writ of Certiorari to the Supreme Court of Appeals of Virginia

    IN  THE

fflmtrt rtf tip IhxxUh States
October Term, 1960

No.

NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE, ETC.,

v.
Petitioner,

A. S. HARRISON, JR., Attorney General of Virginia, et al.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

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

New York 18, New York,

Oliver W. H ill,
214 East Clay Street, 

Richmond 19, Virginia,
Attorneys for Petitioner.

H erbert 0 . Reid,
of Counsel.



I N D E X
PAGE

Petition for Writ of Certiorari to the Supreme Court 
of Appeals of Virginia...............................................  1

Opinion Below ..............................................................  1

Jurisdiction ....................................................................  1

Statute Involved .........................    2

Statement ........................................................................  5

Question Presented ....................................................... 10

Reasons for Allowance of the W rit...........................  11

Conclusion ....................................................................   20

Appendix A—Opinion of Supreme Court of Appeals
of Virginia ................................................................... la

Judgment ................................................................. 29a
Denial of Petition for Rehearing........................ 29a

Appendix B—Opinion of the United States District 
Court for the Eastern District of Virginia entered 
January 21, 1958.........................................................  30a

Table of Cases

Ades, In re, 6 F. Supp. 467............................. 14,18, fn 14,19
Baltimore & Ohio Railroad Co. v. United States, 298

U. S. 349....................................................................... 11
Barbier v. Connelly, 113 U. S. 27.............................  19
Bates v. Little Rock, 361 U. S. 516......................... 6, fn 2,16



11
PAGE

Blackburn v. Alabama, 361 U. S. 199.........................  11
Brannon v. Stark, 185 F. 2d 871 (D. C. Cir. 1950),

aff’d 342 U. S. 451....................................................  19
Brown v. Board of Education, 347 U. S. 483..........8,14, 15
Brush v. Carbondale, 299 111. 144, 82 N. E. 252 (1907) 19
Cantrell v. Connecticut, 310 U. S. 296..................... 18, fn 13
Cooper v. Aaron, 358 U. S. 1.....................................  15
Crow, In re, 359 U. S. 1007......................................... 19
Davies v. Stowell, 78 Wis. 334, 47 N. W. 370.............. 19
Evers v. Dwyer, 358 U. S. 202.................................  18
Feiner v. New York, 340 U. S. 315.........................  11
Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 S. E.

2d 602 (1940) .............................................14,17, fn 10,19

Harrison v. Day, 106 S. E. (2d) 636.........................  15
Hooven & Allison Co. v. Evatt, 324 U. S. 652.......... 11
Hurd v. Hodge, 334 U. S. 2 4 . . ................................. 18, fn 17
James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) 15
Koningsburg v. State Bar of California, 353 U. S.

252 ................................................................................  13
Marsh v. Alabama, 326 U. S. 501........................... 18, fn 13
Missouri ex rcl. Gaines v. Canada, 305 U. S. 3 3 7 .... 14
Morey v. Doud, 354 U. S. 457.....................................  13
Muir v. Louisville Park Theatrical Assn., 102 F.

Supp. 525 (W. D. Ky. 1951), aff’d 202 F. 2d 275 
(6th Cir. 1953), vacated and remanded, 344 U. S.
971 ................................................................................  11

N.A.A.C.P. v. xilabama, 357 U. S. 449..................6, fn 2,16
N.A.A.C.P. v. Harrison, 360 U. S. 167 . . .  .5, fn 1, 9, fn 3,10
N.A.A.C.P. v. Patty, 159 F. Supp. 503...................... 8
Napue v. Illinois, 360 U. S. 264.....................................  11
Ng Fung Ho v. White, 259 U. S. 276.........................  11
Niemotko v. Maryland, 340 U. S. 268.........................  11
Norris v. Alabama, 294 U. S. 587.............................  11



I ll
PAGE

Ohio Valley Water Co. v. Ben Avon Borough, 253 
U. S. 287......................................................................  11

Pierre v. Louisiana, 306 U. S. 354.............................  11
Raley v. Ohio, 360 U. S. 423 ...........................................  7
Royal Oak Drain. Dist. v. Keefe, 87 F. 2d 786 (6th 

Cir. 1937) ....................................................................  19
St. Joseph Stock Yards Co. v. United States, 298

U. S. 38........................................................................  11
Schware v. Board of Bar Examiners, 353 U. S. 232 13
S’hanks Village Committee against Rent Increases 

v. Cary, 103 F. Supp. 566 (S. D. N. Y., 1952) .. .18, fn 18 
Shelton v. Tucker, — U. S. —, 29 L. W. 4058, dec.

Dec. 12, 1960 .......................................................16,18, fn 19
Smith v. Allwright, 321 U. S. 649...............................  14
Spano v. New York, 360 U. S. 315.................................  11
Stark v. Wickard, 321 U. S. 288, 310...................... 14,18
S'weatt v. Painter, 339 U. S. 629.................................  14
Talley v. California, 362 U. S. 60................................. 16
Terral v. Burke Construction Co., 257 U. S. 5 2 9 .... 19
Theard v. United States, 354 U. S. 278...................... 19
Truax v. Corrigan, 257 U. S. 312.................................  19
Vita-phone Corp. v. Hutchison Amusement Co., 28 

F. Supp. 526 (D. Mass. 1939).................................... 19
AVatts v. Indiana, 338 U. S. 49.....................................  11
AVilliamson v. Le Optical o f Oklahoma, 348 U. S.

483 ................................................................................  13

Constitution Cited

United States:

Thirteenth Amendment.........................................  13
Fourteenth Amendment ................................ 6,10,11,13
Fifteenth Amendment .........................................  6,13



IV

Statutes, Texts and Miscellaneous Citations
PAGE

Canons of Professional Ethics (1938):
Canon 3 5 ..................................................................  12
Canon 4 7 ..................................................................  12

Opinion 148, Committee on Professional Ethics and 
Grievances, A. B. A. (1935)................................. 14,17, fn 7

Opinion 282, Committee on Professional Ethics and 
Grievances, A. B. A. (1950).....................................  14

Code of Virginia as Amended:
Section 54-74 ........................................................... 2
Section 54-78 ........................................................... 4
Section 54-79 ........................................................... 5

United States Code, Title 28:
Section 1257(3) ................................. ...................  2

Note, 3 R. R. L. Rep. 1257 (1958)......................... 14,15,20
58 Yale L. J. 574 (1949)......................................... 14,18, fn 12

Bunche, R., Scottsboro Defense Committee..........17, fn 11

Church, S. H., “ Trade Unionism and Crime” , New 
York Times, Oct. 1, 1922......................................... 17, fn 6

Jaffe, “ Judicial Review; Constitutional and Juris­
diction Fact” , 70 Harv. L. Rev................................... 11

“ Programs, Ideologies and Tacits and Achievements 
of Negro Betterment and Inter-Racial Organi­
zations ...................................................................... 17, fn 11

Radin, “ Maintenance by Champerty” , 24 Calif. L.
Rev. 48 (1935)............................................................. 19

Schlesinger, A. M., Crisis of the Old Order (1957), 
pp. 113, 1 4 9 .................................................17, fn 8,17, fn 11

Smith, R. H., Justice and the Poor (1921), p.
134 ...............................................................17, fn 9,18, fn 15



V

American Committee for the Protection of Foreign 
Born ..........................................................................18, fn 20

American Committee for the Defense of Puerto Rican
Political Prisoners ...................................................17, fn 9

“ Judicial Administration and the Common Man” ,
287 Annals, pp. 34-41, 43-52,110-119,120-126 (1953) 19

“ Lagging Justice” , 328 Annals, passim (1960)___  20
Letter of Gordon M. Tiffany, Staff Director of United 

States Commission on Civil Rights to Senator 
Jacob K. Javits........................................................ 14, fn 4

Nat’l Assn, of Manufacturers publication, “ The 
Crime of the Century and Its Relation to Politics ’ ’, 
p. 24 ............................................................................17, fn 6

National Committee for the Defense of Political 
Prisoners, “ News You Don’t Get” , published 
January 3 and August 11, 1936, April 27 and May 
5, 1938 ......................... 17, fn 6,17, fn 9,18, fn 13,18, fn 20

New York Times Articles, “ Champion of Indians,
March 3, 1958...........................................................18, f i l l  2

PAGE



IN THE

^uprattp Glmtrt at %  Jlmtpfc Btutvj
October Term, 1960

No.

N ational A ssociation foe the A dvancement of 
Colored People, etc.,

Petitioner,
v.

A. S. H arrison, Jr., Attorney General of Virginia, et al. 
---------------------- o---------------------

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF APPEALS OF VIRGINIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Appeals of Virginia 
entered on September 2, 1960, in the above-entitled cause.

Opinion Below

The opinion of the court below is reported at 202 
Va. 142, 116 S. E. 2d 55, and is appended hereto, infra 
at page la.

Jurisdiction

The judgment of the Supreme Court of Appeals of Vir­
ginia, appended hereto, infra at page 29a, was entered on 
September 2, 1960. An order was entered on October 12, 
1960, denying petition for rehearing and is appended hereto, 
infra at page 29a.



o

Application for an extension of time to and until Janu­
ary 31, 1961, in which to file this petition was granted by 
Mr. Justice Frankfurter in an order dated January 3, 
1961.

Jurisdiction of this Court to review the judgment below 
is invoked under Title 28, United States Code, §1257(3).

Statute Involved

Chapter 33
A cts of the General, A ssembly of V irginia 

Extra Session, 1956
(Sections 54-74, 54-78 and 54-79 of the Code of 

Virginia as amended)
An Act to amend and reenact %% 54-74, 54-78 and 54-79 of 
the Code of Virginia, relating, respectively, to procedure 

for suspension and revocation of licenses of attorneys 
at law, and to running and capping.

Approved September 29, 1956

Be it enacted by the General Assembly of Virginia:

1. That §§ 54-74, 54-78 and 54-79 of the Code of Virginia 
be amended and reenacted as follows:

§ 54-74. (1) Issuance of rule.—If the Supreme Court of 
Appeals or any court of record of this State, observes, or 
if complaint, verified by affidavit, be made by any person to 
such court of any malpractice or of any unlawful or dis­
honest or unworthy or corrupt or unprofessional conduct 
on the part of any attorney, or that any person practicing 
law is not duly licensed to practice in this State, such court 
shall, if it deems the case a proper one for such action, 
issue a rule against such attorney or other person to show 
cause why his license to practice shall not be revoked or 
suspended.



(2) Judges hearing case.—At the time such rule is is­
sued the court issuing the same shall certify the fact of 
such issuance and the time and place of the hearing thereon, 
to the chief justice of the Supreme Court of Appeals, who 
shall designate two judges, other than the judge of the 
court issuing the rule, of circuit courts or courts of record 
of cities of the first class to hear and decide the case in 
conjunction with the judge issuing the rule, which such 
two judges shall receive as compensation ten dollars per 
day and necessary expenses while actually engaged in the 
performance of their duties, to be paid out of the treasury 
of the county or city in which such court is held.

(3) Duty of Commonwealth’s attorney.—It shall he the 
duty of the attorney for the Commonwealth for the country 
or city in which such case is pending to appear at the 
hearing and prosecute the case.

(4) Action of court.—Upon the hearing, if the defend­
ant be found guilty by the court, his license to practice law 
in this State shall he revoked, or suspended for such time 
as the court may prescribe; provided, that the court, in 
lieu of revocation or suspension, may, in its discretion, 
reprimand such attorney.

(5) Appeal.— The person or persons making the com­
plaint or the defendant, may, as of right, appeal from the 
judgment of the Court to the Supreme Court of Appeals 
by petition based upon a true transcript of the record, 
which shall be made up and certified as in actions at law.

(6) “ Any malpractice, or any unlawful or dishonest or 
unworthy or corrupt or unprofessional conduct” , as used 
in this section, shall be construed to include the improper 
solicitation of any legal or professional business or employ­
ment, either directly or indirectly, or the acceptance of 
employment, retainer, compensation or costs from any per­
son, partnership, corporation, organization or association



4

with knoivledge that such person, partnership, corporation, 
organization or association has violated any provision of 
Article 7 of this chapter, or the failure, without sufficient 
cause, within a reasonable time after demand, of any attor­
ney at law, to pay over and deliver to the person entitled 
thereto, any money, security or other property, which has 
come into his hands as such attorney; provided, hoivever, 
that nothing contained in this Article shall be construed to 
in any way prohibit any attorney from accepting employ­
ment to defend any person, partnership, corporation, or­
ganization or association accused of violating the provisions 
of Article 7 of this chapter.

(7) Representation by counsel.—In any proceedings to 
revoke or suspend the license of an attorney under this or 
the preceding section, the defendant shall be entitled to 
representation by counsel.

§ 54-78. As used in this article:

(1) A  “ runner”  or “ capper”  is any person, corpora­
tion, partnership or association acting in any manner or 
in any capacity as an agent for an attorney at law within 
this State or for any person, partnership, corporation, 
organization or association which employs, retains or com­
pensates any attorney at law in connection with any judicial 
proceeding in which such person, partnership, corporation, 
organization or association is not a party and in which it 
has no pecuniary right or liability, in the solicitation or 
procurement of business for such attorney at law or for 
such person, partnership, corporation, organization or asso­
ciation in connection with any judicial proceedings for 
which such attorney or such person, partnership, corpora­
tion, organization or association is employed, retained or 
compensated.

The fact that any person, partnership, corporation, 
organization or association is a party to any judicial pro­
ceeding shall not authorize any runner or capper to solicit



0

or procure business for such person, partnership, corpora­
tion, organization or association, or any attorney at laic 
employed, retained or compensated by such person, part­
nership, corporation, organization or association.

(2) An “ agent”  is one who represents another in deal­
ing with a third person or persons.

§ 54-79. It shall be unlawful for any person, corpora­
tion, partnership or association to act as a runner or cap­
per as defined in % 54-78 to solicit any business for an 
attorney at law or such person, partnership, corporation, 
organization or association, in and about the State prisons, 
county jails, city jails, city prisons, or other places of deten­
tion of persons, city receiving hospitals, city and county 
receiving hospitals, county hospitals, police courts, county 
courts, municipal courts, courts of record, or in any public 
institution or in any place or upon any public street or 
highway or in and about private hospitals, sanitariums 
or in and about any private institution or upon private 
property of any character whatsoever.

2. An emergency exists and this act is in force from 
its passage.

Statement

Petitioner is a nonprofit membership corporation, incor­
porated under the laws of the State of New York (F. 45, 
165, 496-502)P It is licensed to do business in Virginia 
as a foreign corporation (F. 191). * 2

1 There are two transcripts which make up the record in this 
case: (1 ) The printed record used in connection with the appeal 
in N.A.A.C.P. v. Harrison, No. 127, Oct. Term, 1958, 360 U. S. 
167— the citations to that record will be identified by the prefix “ F” ;
(2 ) the printed record of additional testimony taken in the Circuit 
Court of the City of Richmond, when suit was there instituted for 
an authoritative state construction and interpretation of the legislation 
at issue in this petition— references to this record will be identified 
by the prefix “ S” .



6

Petitioner’s activities in Virginia are carried on through 
some 89 chartered branches scattered throughout the state. 
These branches are grouped together into an unin­
corporated association called the Virginia State Conference 
of Branches which acts on matters of statewide concern 
(F. 46, 134-135, 136). Its basic aims and purposes are to 
improve the status of Negroes in American life,2 and 
through the national organization, the Virginia State Con­
ference of Branches, local branches and members, petitioner 
seeks full citizenship rights for all persons in Virginia with­
out debilitation based upon race.

In its effort to achieve this overall objective, petitioner 
encourages Negroes to assert their constitutional rights 
and in some instances, assists those who institute litiga­
tion that seeks vindication of the guarantees against racial 
and color differentiations contained in the Fourteenth and 
Fifteenth Amendments to the Constitution of the United 
States (F. 170, 171). While petitioner, of course, attempts 
to achieve its aims in other ways as well (F. 171, 172), the 
issues raised in this case relate solely to its involvement 
in litigation in which Negroes resort to the courts in an 
effort to free themselves and the country of the burdens 
of racial discrimination.

The Virginia State Conference has a legal committee 
presently composed of 15 lawyers (S. 93) residing in 
different parts of the state. This committee, more com­
monly known as the legal staff, is elected at each annual 
state convention, and it in turn elects a chairman (F. 48, 
157; S. 102-104).

The petitioner organization becomes involved in liti­
gation when an aggrieved person contacts either a member 2

2 The Court has had occasion to examine the aims, purposes and 
organizational structure of the petitioner organization. See N.A.A.C.P. 
v. Alabama. 357 U. S. 449; Bates v. Little Rock, 361 U. S. 516. 
Hence, no detailed explanatory statement in that regard is being set 
forth in this petition.



/

of the legal staff in person or the Executive Secretary of 
the Virginia State Conference of Branches, who then refers 
the complaining party to the Chairman or to some other 
member of the legal staff, if the situation appears to be 
a genuine grievance concerning state-imposed racial dis­
crimination (F. 48, 147-150, 207, 563, 567). The Chairman 
either confers with the complaining party or is apprised of 
the facts by a member of the legal staff. If he concludes 
that the situation is one with which the organization should 
concern itself, he recommends that the State Conference 
assume the financial obligations involved in prosecuting 
the matter in the courts (F. 48, 150, 209, 210). This recom­
mendation is communicated to the President of the State 
Conference and upon the latter’s concurrence the Confer­
ence obligates itself to underwrite the expenses of the 
litigation (F. 48, 150). In most instances the lawyer 
handling the litigation is a member of the legal staff (F. 
152, 153, 159), and there is no complaint in the record from 
any litigant in this regard. Once the Conference under­
takes to underwrite the cost of the litigation, it does not pay 
any monies to the complaining party. The funds go to 
the attorney representing the litigant for out-of-pocket 
expenses incurred, plus a fixed per diem for time spent 
in the preparation and trial of the cause (F. 48, 209-210, 
646-647). The compensation received by the lawyers is 
well below that which they would normally feel entitled 
to demand (F. 321, 325, 329).

Petitioner’s policy against discrimination is well known, 
and the public is aware of the fact that it will underwrite 
the costs of prosecuting in the courts a legitimate com­
plaint involving discrimination which it believes to be 
unlawful (S. 113).

Petitioner is not a legal aid society. It does not give as­
sistance to Negroes merely because they are Negroes or be­
cause they are indigent, and membership in the organization 
is not essential for aid to be forthcoming. Petitioner con­
cerns itself solely with the validity of racial discrimination



8

where resolution of the question involved may affect 
Negroes in general (S. 121). For the past several years— 
since 1950 at least—it has refused to finance litigation 
involving racial discrimination unless the court action was 
aimed at contesting the legality of racial segregation per se 
(S. 113, 125). Tt does not act until some individual comes 
asking for help (F. 144), and if there is a change of heart 
and the individual wishes to withdraw prior or subsequent 
to the commencement of the law suit, there is never any 
problem of his being able to do so (F. 232; S. 80, 131).

Chapter 33, along with Chapters 31, 32, 35 and 36, was 
passed as a package at the 1956 Extra Session of the 
General Assembly of Virginia. These statutes were part 
of Virginia’s “ massive resistance”  plan to implementation 
of this Court’s decision in Brown v. Board of Education, 
347 U. S. 483. The chronology of events, from the appoint­
ment of the Gray Commission on Public Education, which 
was empowered to recommend ways and means for deal­
ing with the Brown decision, to the 1956 Extra Session of 
the General Assembly, called to enact legislation to pre­
serve segregated schools and at which Chapter 33 became 
law, is set out in the opinion of Judge Soper in N.A.A.C.P. v. 
Patty, 159 F. Supp. 503 (E. D. Va. 1959), appended hereto 
infra, pages 30a, 40a-47a, and will not need repetition here.

In the belief that Chapters 31, 32, 33, 35 and 36 were 
enacted to destroy the organization and that the laws 
denied due process, equal protection of the laws, free­
dom of speech and association to petitioner and all those 
connected with it in seeking the development and imple­
mentation of constitutional doctrine outlawing racial dis­
crimination, petitioner brought suit in a specially-consti­
tuted statutory United States District Court for the East­
ern District of Virginia attacking the constitutionality of 
all of these statutes and seeking to enjoin their enforce­
ment (See N.A.A.C.P. v. Patty, supra). That court, on Janu­
ary 21, 1958, struck down Chapters 31, 32 and 35. It found 
Chapters 33 and 36, however, too ambiguous for construe-



9

tion by the federal court prior to an authoritative construc­
tion and interpretation by the state courts, and as to these 
latter statutes, petitioner was instructed to institute pro­
ceedings in the state courts.3

The instant proceedings were instituted in the Circuit 
Court of the City of Richmond seeking a judgment declara­
tory of the construction and interpretation of Chapters 33 
and 36 to the effect that the activities of petitioner, its affili­
ates, officers, members, contributors and voluntary workers, 
in encouraging Negroes to assert their constitutional rights 
and in expending monies to defray the cost of litigation 
designed to eliminate state-imposed racial segregation; the 
practice of litigants, in accepting such aid in cases aimed 
at the establishment of legal and constitutional standards 
of equal justice without regard to race or color; and the 
activities of attorneys, in representing such litigants when 
the fees and expenses are paid by petitioner, were lawful 
and not in violation of Chapters 33 and 36. In addition, peti­
tioner alleged that if Chapters 33 and 36, as construed, 
rendered these aforesaid activities unlawful, that Chapters 
33 and 36 were unconstitutional and void, being in violation 
of the due process and equal protection clauses of the 
Fourteenth Amendment to the Constitution of the United 
States, and their enforcement against petitioner, and those 
associated with it should be permanently enjoined.

The case was tried in the Circuit Court on the record 
and exhibits used in connection with the appeal in

3 Subsequently, sub nom N.A.A.C.P. v. Harrison, 360 U. S. 
167, the judgment of the federal court in respect to Chapters 31, 
32 and 35 was vacated upon the grounds that the doctrine of federal 
abstention required the federal court to withhold a decision on the 
merits in respect to these statutes until they had been given an 
authoritative interpretation by the state courts. Such proceedings 
are now pending in the Circuit Court o f the City of Richmond. The 
outcome of those proceedings will undoubtedly be affected by this 
determination.



10

N.A.A.C.P. v. Harrison, 360 U. S. 167, the bill of complaint 
hied by petitioner, respondent ’s answer and additional tes­
timony and exhibits adduced at the trial in the Circuit 
Court of the City of Richmond.

That court construed Chapters 33 and 36 as proscribing 
petitioner’s giving assistance to persons in litigation involv­
ing racial discrimination and found no inconsistency be­
tween the statutes as thus construed and the constitutional 
guarantees of equal protection and due process.

On appeal to the Supreme Court of Appeals of Virginia, 
Chapter 36 was held to be fatally defective, in that it was 
violative of the Fourteenth Amendment to the Constitution 
of the United States. Chapter 33, however, was found to be a 
proper regulation of the legal profession and a valid prohi­
bition of the activities of the petitioner which were held to 
constitute the unlawful solicitation of legal business. The 
Supreme Court of Appeals concluded that Chapter 33 pro­
hibited petitioner’s giving assistance to litigants to vindicate 
their constitutional rights to freedom from racial discrimi­
nation, by referring complaints brought by such persons to 
attorneys associated with petitioner and by paying to the 
attorneys whatever fees and expenses such litigation 
involved.

Application for rehearing was denied and petitioner 
brings the cause here.

Question Presented

Whether a state, under the guise of regulating the 
practice of law, may make criminal the activities of peti­
tioner and its affiliates, in defraying the costs and expenses 
of litigation instituted by Negroes who seek to vindicate 
their constitutional right to be free of racial discrimination, 
where these activities are not undertaken to promote any 
private or commercial interests, and may subject attorneys 
acting as counsel in such litigation to disbarment or other



11

disciplinary proceedings, without violating the Fourteenth 
Amendment mandates of due process and equal protection 
of the laws and without abridging the Constitution’s guar­
antee of free access to the courts.

Reasons for Allowance of the Writ

1. This Court’s consistent practice of making its own 
independent evaluation of the evidentiary facts upon which 
a lower court’s adjudication of constitutional claims is based 
compels the granting of this petition. See, Blackburn v. 
Alabama, 361 U. S. 199; Spano v. New York, 360 U. S. 315; 
Napue v. Illinois, 360 U. S’. 264; Muir v. Louisville Park 
Theatrical Association, 102 F. Supp. 525 (W. D. Ivy. 1951), 
aff’d, 202 F. 2d 275 (6th Cir. 1953), vacated and remanded, 
344 U. S. 971; Niemotko v. Maryland, 340 U. S. 268, 271; 
Feiner v. New York, 340 U. S. 315, 316, 322, fn. 4; Watts v. 
Indiana, 338 U. S. 49, 50-51; Hooven £  Allison Co. v. Evatt, 
324 U. S. 652, 659; Pierre v. Louisiana, 306 U. S. 354, 358; 
Baltimore £  Ohio Railroad Company v. United States, 298 
U. S. 349, 372; St. Joseph Stock Yards Company v. United 
States, 298 U. S. 38, 49-55; Norris v. Alabama, 294 U. S. 587, 
389, 590; Ohio Valley Water Company v. Ben Avon Borough, 
253 U. S. 287. Cf. Ng Fung Ho v. White, 259 U. S. 276, 284, 
285. And see Jaffe, “ Judicial Review: Constitutional and 
Jurisdiction Fact,”  70 Ilarv. L. Rev. 953 (1957). Indeed, 
this case is strikingly illustrative of the wisdom of the 
Court’s refusal to foreclose reappraisal of a finding that is 
essential to determination of a constitutional question.

Here, the state and federal courts, on virtually the same 
evidence, reached irreconcilable conclusions as to what facts 
the record discloses. The Supreme Court of Appeals reads 
the evidence as showing that petitioner is “ engaged in 
fomenting and soliciting legal business”  in which it is 
not a party and has “ no pecuniary right or liability,”  and 
which it channels “ to the enrichment of certain lawyers 
employed”  by it, “ at no cost to the litigants and over



12

which the litigants have no control”  (See Appendix A, 
infra at p. 15a). It found no merit in petitioner’s argument 
that its activities are not “ what are commonly considered 
as solicitation of business contrary to the canons of legal 
ethics”  (id. at p. 16a). It concluded that the petitioner 
and its affiliates act as intermediaries between the client 
and the lawyer in the solicitation of legal business and. 
therefore, that acceptance of employment by attorneys of 
cases handled under petitioner’s auspices violate Canons 
35 and 47 of the Canons of Professional Ethics in force 
in Virginia since October 21, 1938, 178 Va. p. X X X II (id. 
at 17a). The court stated that Chapter 33 was designed, 
to and could appropriately curb the kind of activities in 
which petitioner is engaged and, held that in regulating 
and restricting petitioner’s actions, the statute does not 
violate constitutional guarantees of freedom of speech or 
association, due process or equal protection of the laws.

The federal court, on the other hand, found that the 
activities of petitioner did not “ amount to a solicitation of 
business or a stirring up of litigation of the sort condemned 
by the ethical standards of the legal profession”  (See 
Appendix B, infra at p. 81a). Moreover, it found peti­
tioner’s activities authorized by Canon 35 of the Canons 
of Professional Ethics of the American Bar Association 
(id. at p. 79a). While finding Chapter 33 obscure and 
difficult to understand, the court concluded “ the general 
purpose seems to be to hit any organization which parti­
cipates in a law suit in which it has no financial interest 
and also to fasten the charge of mal-praetice upon any 
lawyer who accepts employment from such an organization. 
If the statute should be so interpreted as to forbid a con­
tinuance of the activities of [petitioner] in respect to liti­
gation as described in this opinion, it would in large 
measure destroy [its] effectiveness,”  (id. at p. 83a).

That the state and federal courts reached disparate 
determinations as to petitioner’s constitutional claims was



13

the inevitable consequence of the division between them 
as to what the evidentiary facts disclosed. Pursuant 
to the principle enunciated in the cases hereinabove cited, 
it is respectfully submitted that this petition should be 
granted. Then, this Court, after an independent evaluation 
of all the evidentiary facts contained in this record, may 
determine for itself whether there is merit to petitioner’s 
contention that Chapter 33, as applied to its activities, 
infringes rights of freedom of speech and of association, 
denies due process and equal protection of the laws and 
constitutes an effective barrier to free access to the coui'ts 
raised against those seeking relief from racial discrimina­
tion imposed by state officials.

2. In characterizing petitioner’s activities as the 
solicitation of legal business under the terms of Chapter 
33, the court below gave a construction and interpretation 
to the statute which renders it arbitrary and unreasonable 
within the meaning of applicable decisions of this Court. 
See Koningsburg v. State Bar of California, 353 U. S. 252; 
Schware v. State Bar Examiners, 353 U. S. 232; Morey 
v. Bond, 354 U. S. 457; Williamson v. Lee Optical of 
Oklahoma, 348 U. S. 483. Maintenance of the integrity 
of the legal profession is, of course, a matter of appropriate 
concern for the state legislature. In dealing with Chapter 
33, however, as it relates to petitioner’s activities, it should 
be recognized, petitioner submits, that far more than that 
abstract question is present.

The petitioner organization, since its inception, has 
been engaged in an effort to secure equal civil rights for 
Negroes within the democratic process. Prevailing politi­
cal, social and economic forces have offered little prospect 
of legislative or executive action to correct the inequi­
ties of second-class citizenship. But complaint in respect to 
the validity of caste and color differentiations lends itself to 
adjudication in the courts, since what is involved is a 
determination of the meaning and scope of the Thirteenth, 
Fourteenth and Fifteenth Amendments to the Constitution 
of the United States.



14

Petitioner has sought the establishment in the funda­
mental law of such yardsticks as would outlaw the evil of 
racial discrimination. Pursuant to this end petitioner sup­
ports test cases aimed chiefly at determining the reach 
and scope of due process, equal protection and constitu­
tional guarantees against disenfranchisement. Some of 
these cases reached this Court, e.g., Missouri ex rel. Gaines 
v. Canada, 305 U. S. 337; Smith v. AUwright, 321 U. S. 649; 
Sweatt v. Painter, 339 U. S. 629; Brown v. Board of Educa­
tion, 347 U. S. 483. That petitioner has made possible the 
preparation and research necessary for presentation of the 
constitutional issues involved in the above and other litiga­
tion concerning the validity of some aspect of racial dis­
crimination; that it has paid the legal fees and expenses; 
and that attorneys associated with it were counsel in such 
cases has been no secret. See Note, 58 Yale L. J. 574 (1949). 
The high cost of litigation makes sponsorship of this kind of 
litigation by the individual Negro an impossibility.4 Peti­
tioner does not concern itself with business or private in­
terests of individuals. It involves itself in litigation relat­
ing solely to civil rights, and then only where the question 
being litigated is likely to have an impact upon the Negro 
community as a whole. Of course, in a larger sense the 
issues determined in litigation sponsored by petitioner affect 
the whole American public. The lawyers involved, while 
receiving some financial remuneration, do not obtain any­
thing close to what would be considered an adequate fee for 
legal services.5 Petitioner’s activities and those of the 
lawyers come within that category which the courts and bar 
associations have given unqualified approval. See e.g., In re 
Ades. 6 F. Supp. -167 (Tb C. Md. 1934); Gunnels v. Atlantic 
Bar Assn., 191 Ga. 366, 12 S. E. 2d 602 (Ga. 1940); Opinion 
No. 148, A. B. A. Opinions of the Committee on Professional 
Ethics and Grievances 308 (1935); Opinion 282, id., at page 
591 (1950); Note, 3 R. R. L. R. 1257.

4 See letter of Gordon M. Tiffany, Staff Director of the United 
States Commission on Civil Rights to Senator Jacob K. javits, 106 
Cong. Rec. (No. 35) 3376-3377 (Feb. 27, 1960).

5 See Tiffany, op. cit. supra, note 4.



15

Certainly the kinds and types of litigation with which 
petitioner is connected make it highly improbable that its 
activities are of that class that gives the bench and bar 
concern about the maintenance of the integrity of the legal 
profession. Indeed, little interest was manifested in peti­
tioner’s support of litigation until some states began to 
seek a means to avoid adhering to Brown. See Note, 
3 R. R. L. Rep. 1257 (1958). Since implementation of any 
doctrine of constitutional law, unless voluntarily adhered 
to by state officials, requires the institution and prosecu­
tion of court litigation, it soon became evident that the 
state policy of segregation might be preserved for a while, 
at least, if petitioner was prevented from supporting liti­
gation to invalidate segregation.

Viewed realistically, therefore, there is no escape from 
the conclusion that Virginia sought by this statute to under­
gird its plan of “ massive resistance”  to the implementation 
of the Brown decision. With decisions in Cooper v. Aaron, 
358 U. S. 1; Harrison v. Bay, 106 S. E. (2d) 636; James v. 
Almond, 170 F. Supp. 331 (E. D. Va. 1959), appeal dis­
missed, 359 U. S. 1006, “ massive resistance”  proved to be a 
bankrupt policy, and it was abandoned. Resistance to full 
implementation of constitutional proscriptions against 
racial segregation, however, is still a potent force in the 
state today.

Whatever the intent and purpose of Chapter 33, as now 
construed and applied its effect is to immobilize petitioner 
organization and greatly handicap the effort to secure 
implementation of the Brown decision in Virginia. On the 
other hand, all the state’s resources are being used to 
maintain the prevailing pattern of segregation, thereby 
preventing many residents and citizens of Virginia from 
enjoyment of their declared constitutional rights.

In the light of these circumstances, the construction and 
application of Chapter 33 enunciated below is not reasonably



16

related to a valid governmental objection, and the statute, 
therefore, is fatally defective. Cf. Shelton v. Tucker, — 
U. S. —, 29 L. W. 4058, decided December 12, 1960.

3. As construed, Chapter 33 cannot be squared with the 
decisions of this Court in N.A.A.C.P. v. Alabama, 357 
U. S. 449, and Bates v. Little Rock, 361 U. S. 516. The court 
below states that petitioner and its associates “ may not be 
prohibited from acquainting persons with what they believe 
to be their rights and advising them to assert their rights, in 
so doing it is prohibited from soliciting legal business for 
their attorneys or any particular attorneys.”  Moreover, the 
court below held that petitioner’s activities constituted 
solicitation. Thus, the asserted protection of freedom of 
speech and association guarantees becomes empty cant. 
The court holds that petitioner and its members cannot 
engage in the activities revealed in this record. No attor­
ney on the petitioner’s State Conference legal staff can 
safely act as counsel in any litigation in which petitioner 
has acquainted persons with their rights, advised them to 
assert same or contributed money for prosecution of the 
law suit, without being prospectively guilty of violating 
this statute. No other attorneys can act in such cases 
since they are subject to being the “ particular attorneys”  
for whom petitioner has engaged in solicitation of legal 
business. The short of it is that petitioner must forego 
any activity relating to litigation to avoid the pinch of 
Chapter 33. Since this has been the area of petitioner’s 
greatest effectiveness, Chapter 33, therefore, as now con­
strued means a serious weakening, if not destruction, of 
petitioner organization in Virginia. As such, it is sub­
mitted, the rights of petitioner’s members to freedom of 
association and to take lawful action to secure the lawful 
objective of equal citizenship privileges for all persons with­
out regard to their race have been seriously impaired. See 
N.A.A.C.P. v. Alabama, supra; Bates v. Little Rock, supra; 
Cf. Talley v. California, 362 U. S. 60.



17

4. The decision below seriously restricts group sponsor­
ship of test litigation, designed for ultimate determination 
by this Court, ill which serious and legitimate claims are 
made concerning the constitutional validity of a federal or 
state statute, action or regulation which poses a threat to 
some group interest. As such the questions raised should be 
settled by this Court since this is a case of first impression 
having far reaching consequences of national import and 
affecting a myriad variety of federal rights. Cf. Raley v. 
Ohio, 360 U. S. 423.

Group sponsorship of litigation has been an accepted 
practice in the United States, for many years. Labor 
unions,0 trade associations,6 7 consumers organizations,8 na­
tionality groups,9, bar associations,10 11 ad hoc committees,11

6 See reprint of testimony of Walter Drew before Senate Judiciary 
Committee (1914) in, “ The Crime of the Century and Its Relation to 
Politics,” p. 24 (Nat’l. Assn, of Manufacturers publication) : News 
You Don’t Get, August 11, 1936, April 27 and May 5, 1938 (pub­
lished by National Committee for the Defense of Political Prisoners) 
pages unnumbered; Church, S. H., “ Trade Unionism and Crime.” 
New York Times, Oct. 1, 1922.

7 E.g., The National Erector’s Association retained Walter Drew 
to represent it in litigation. See reprint referred to in note 6 supra. 
Counsel cannot document the fact that trade associations have given 
support to litigation which seeks to determine the validity of laws 
affecting business interests since such information is not contained 
in the case reports. However, it would be a fair assumption that 
such support does take place, especially since Bar Association hold­
ings have condoned litigation of this character. See Opinion 148, 
Committee on Professional Ethics and Grievances, A.B.A. (1935).

8 The Consumers League sponsored litigation involving the con­
stitutionality of social welfare legislation in the 1930’s. Schlesinger 
A. M., Crisis of the Old Order (1957) pp. 113 and 419.

9 Between 1856 and 1875 the German Society provided a special 
legal committee to protect newly arrived immigrants. Smith, R. H., 
Justice and the Poor (1921) p. 134, American Committee for the 
Defense of Puerto Rican Political Prisoners. News You Don’t Get, 
op. cit, supra, note 6.

10 Gunnels v. Atlanta Bar Association, 191 Ga. 366, 12 S. E. 
(2d) 602 (1940).

11 E.g., See Schlesinger, A. M., op. cit. supra, note 8 at page 113; 
Scottsboro Defense Committee, Bunche, R . ; “ Programs, Ideologies 
and Tacits and Achievements of Negro Betterment and Inter-Racial 
Organizations,”  manuscript prepared for the Carnegie Foundation 
Study by Gunnar Mydral of the Negro in America (1940).



18

racial groups,12 religious groups,13 labor defense commit­
tees,14 child welfare organizations,15 16 civil liberties groups,10 
property owners,17 tenants,18 professional group,19 and 
committees for protection of immigrants20 have sponsored 
litigation involving some legal question affecting the inter­
ests of the group concerned. In the field of constitutional 
law where adjudication of a case or controversy is a pre­
requisite to judicial determination of whether governmental 
action is constitutionally permissible, the test case is a 
recognized method of raising constitutional claims. See 
Stark v. Wickard, 321 T . S. 288, 310; Evers v. Dwyer, 358 
U. S. 202.

The right of individual or groups to sponsor litigation 
where there is no agreement to share the proceeds and 
where the members of the group have a common or general 
or patriotic interest in the principle of law to be estab­

12 See New York Times article, Champion of Indians, March 
3, 1958; Note, 58 Yale L. J., supra.

13 E.g., Johovah’s Witnesses apparently sponsored a number of 
cases in the United States Supreme Court, e.g., Marsh v. Alabama, 
326 U. S. 501, and Cantwell v. Connecticut, 310 U. S. 296. The 
Methodist Federation for Social Service provided financial assistance 
in the Scottsboro Case. News You Don't Get, Jan. 3, 1936, pages 
unnumbered.

14 E.g.. See. In Re Ades, 6 F. Supp. 467 (D. Md. 1934).
15 E.g., The Children’s Aid Society of Boston, Smith, R. H., 

Justice and the Poor, op. cit. supra, note 7 at page 223 (1921), p. 
223.

16 E.g., The American Civil Liberties Union.
17 Opinions of the Committees on Professional Ethics of the 

Association of the Bar of the City of New York and the New York 
County Lawyer’s Association, Columbia Univ. Press, 1956, Op. No. 
113; Hurd v. Plodge, 334 U. S. 24.

18 Shanks Village Committee Against Rent Increases v. Cary, 
103 F. Supp. 566 (S. D. N. Y. 1952).

19 E.g., Shelton v. Tucker, —  U. S. — , 29 L. W . 4058, decided 
Dec. 12, 1960.

20 E.g., American Committee for the Protection of the Foreign 
Born assisted Otto Richter, a German refugee seeking political 
asylum, News You Don’t Get. Feb. 25, 1935, pages unnumbered.



19

lished has been sanctioned by court decisions. See Brannon 
v. Stark, 185 F. 2d 871 (D. C. Cir. 1950), aff’d 342 U. S. 451; 
Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 S. R. 2d 602 
(1940) ; Brush v. Carbondale, 299 111. 144, 82 N. E. 252 
(1907); Davies v. Stowell, 78 Wis. 334, 47 N. W. 370; Royal 
Oak Drain. Dist. v. Keefe, 87 F. 2d 786 (6th Cir. 1937); Vita- 
phone Corp. v. Hutchison Amusement Co., 28 F. Supp. 526 
(D. Mass. 1939); In re Ades, 6 F. Supp. 467 (D. Md. 1934).

This decision below, therefore, not only affects peti­
tioner’s interests and those associated with it, but is ad­
verse to the sponsorship of litigation by any group. This 
raises serious questions relating to the individual’s right 
and opportunity to subject governmental action to measure­
ments against the requirements of the Constitution of the 
United States. It seriously hampers the individual in 
exercise of his right of access to the courts, see Terral v. 
Burke Construction Co., 257 U. S. 529; Truax v. Corrigan, 
257 U. S. 312, 334; Barhier v. Connelly, 113 U. S. 27, 31, and 
raises grave questions in respect to state authority to de­
limit the prosecution of federal rights in the federal courts. 
Cf. Theard v. United States, 354 U. S. 278; In re Crow, 
359 U. S. 1007.

Barratry, maintenance and champerty were the great 
evils of a bygone era. See Radin, “ Maintenance by Cham­
perty,”  24 Calif. L. Rev. 48 (1935); Note, 3 R. R. L. 
Rep. 1257 (1958). Today the court and the bar seek 
to guard against commercialization of the law and the 
reduction of the profession from a high and noble priest­
hood to a competitive business enterprise with a resultant 
lowering of ethical standards. The high cost of legal serv­
ices, and its unavailability to lower and middle-income 
groups, see “ Judicial Administration and the Common 
Man,”  287 Annals pp. 34-41, 43-52, 110-119, 120-126 
(1953), and the time-consuming factor in litigation, see 
“ Lagging Justice,”  328 Annals, passim (1960), have been 
the chief concerns in modern day administration of justice.

At best, the state’s power to deal with the evils of bar­
ratry must compete with the public interest in keeping the



20

pathway to the courts unimpeded. In attempting to ac­
commodate these two competing claims, suppression of fun­
damental personal freedom must be avoided.

Whether, therefore, an organization, such as that now 
before the Court, in seeking the adjudication and settlement 
of constitutional questions which affect the lives, hopes and 
aspirations of a sizeable segment of the nation’s popula­
tion, is engaged in unlawful activities in furnishing the 
means for prosecution of litigation testing the validity of 
racial discrimination, is a question of paramount impor­
tance which should be determined by this Court.

CONCLUSION

Wherefore, for the reasons hereinabove stated, it is 
respectfully submitted that this petition should be 
granted.

Respectfully submitted,

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

New York 18, New York,

Oliver W. H ill,
214 East Clay Street,

Richmond 19, Virginia,
Attorneys for Petitioner.

H erbert 0 .  R eid,
of Counsel.



APPENDIX A

(Opinion of the Supreme Court of Appeals of Virginia)

Present: All the Justices

-----------------------o-----------------------
Record No. 5096

N ational A ssociation for the A dvancement of 
Colored P eople, etc.

A. S. H arrison, J r ., Attorney General of Virginia, et al.

Record No. 5097
N.A.A.C.P. L egal Defense and E ducational F und, I nc.

—v.—
A. S. H arrison, Jr., Attorney General of Virginia, et al.

---------------------- o-----------------------

Opinion by Justice L awrence W . I ’A nson 

Staunton, Virginia, September 2, 1960 
F rom the Circuit Court of the City of R ichmond

E dmund W . H ening, Jr., Judge:

The National Association for the Advancement of Col­
ored People, hereinafter referred to as the NAACP, and 
the NAACP Legal Defense and Educational Fund, Inc., 
hereinafter referred to as the Fund, appellants herein, filed 
their separate bills of complaint in the court below against 
Albertis S. Harrison, Jr., Attorney General of the Common­
wealth of Virginia, the attorneys for the Commonwealth of



2a

the cities of Richmond, Newport News and Norfolk, and the 
counties of Arlington and Prince Edward, Virginia, appel­
lees herein, to secure a declaratory judgment construing 
chapters 33 and 36, Acts of Assembly, Ex. Sess., 1956, 
codified as §§ 54-74, 54-78, 54-79, Code of 1950, as amended, 
1958 Replacement Volume, and §§ 18-349.31 to 18-349.37,1 
inclusive, Code of 1950, as amended, 1958 Cum. Supp., as 
they may affect the appellants, their officers, members, 
affiliates of NAACP, contributors, voluntary workers, at­
torneys retained or employed by them or to whom they may 
contribute monies and expenses, and litigants receiving 
assistance in cases involving racial discrimination, because 
of the activities of the NAACP and the Fund in the past or 
the continuation of like activities in the future.

The NAACP, in addition to seeking a construction of 
the aforementioned statutes, alleged that the statutes are 
unconstitutional and void because their enforcement would 
deny to it, its affiliates, officers, members, contributors, 
voluntary workers, attorneys retained or employed by it, 
and litigants whom it may aid, due process of law and 
equal protection of the laws in violation of the Fourteenth 
Amendment to the Constitution of the United States.

The two suits were heard and considered together in the 
court below, by consent of all parties, on the appellants’ 
bills; their exhibits, which included a transcript of the evi­
dence, exhibits, the majority and dissenting opinions of the 
three-judge federal court, and the judgment entered in the 
case of National Association for the Advancement of Col­
ored People v. Patty, 159 F. Supp. 503 (judgment vacated 
and remanded sub nom. Harrison, et al. v. National Asso­
ciation for the Advancement of Colored People, 360 U. S. 
167, 79 S. Ct. 1025, 3 L. ed. 2d 1152); the answers and 
exhibits of the appellees; and ore tenus testimony on behalf 
of the appellees and the NAACP, except one deposition 
taken on behalf of the NAACP. No testimony was taken 
on behalf of the Fund. *

iN ow  §§ 18.1-394 to 18.1-400, 1960 Cum. Supp.



3a

The court below held, so far as need here be stated,
(1) that chapters 33 and 36 do not violate the constitutional 
guarantees of freedom of speech and assembly, due process 
of law and equal protection of the laws under the Four­
teenth Amendment; (2) that the evidence shows that the 
appellants, their officers, affiliates, members, voluntary 
workers and attorneys are engaged in the improper solici­
tation of legal business and employment in violation of 
chapter 33 and the canons of legal ethics; (3) that attorneys 
who accept employment by appellants to represent litigants 
in cases solicited by the appellants, and in which they pay 
all costs and attorneys’ fees, are violating chapter 33 and 
the canons of legal ethics; and (4) that the appellants and 
those associated with them advise persons of their legal 
rights in matters in which the appellants have no direct 
interest, and whose professional advice has not been sought 
in accordance with the Virginia canons of legal ethics, and 
as an inducement for such persons to assert their legal 
rights through the commencement of or further prosecution 
of legal proceedings against the Commonwealth of Vir­
ginia, any department, agency or political subdivision 
thereof, or any person acting as an employee for either or 
both or any of the foregoing, the appellants furnish attor­
neys employed by them and pay all court costs incident 
thereto, and that these activities violate either chapter 33 
or 36, or both.

The court’s decree enumerated certain detailed activ­
ities of the appellants which do not violate chapters 33 and 
36, and since they are not challenged by any of the parties 
hereto, they need not be stated herein.

From the decree of the chancellor we granted an appeal 
and supersedeas in each cause. They will be considered to­
gether by us, as they were in the court below, except the 
statutes involved will be considered separately.

The questions presented on these appeals are:
(1) Do the activities of the appellants, or either of 

them, amount to solicitation of business, prohibited by chap­
ter 33?



4a

(2) Do the activities of the appellants, or either of 
them, amount to an inducement to others to commence or 
further prosecute lawsuits against the Commonwealth, its 
officers, agencies, or political subdivisions, as prohibited by 
chapter 36?

(3) Do the provisions of either chapters 33 or 36 violate 
the Virginia Bill of Rights (Constitution § 12) and the 
Fourteenth Amendment to the Constitution of the United 
States ?

The evidence shows that the NAACP and the Fund are 
non-profit membership corporations organized under the 
laws of the State of New York with authority to operate in 
this Commonwealth as foreign corporations. The NAACP 
and the Fund functioned as one corporation with the same 
officers, directors and members from 1911 until 1948, when, 
for tax purposes and other reasons, the Fund was organ­
ized as a separate corporation.

The principal purpose of the NAACP is to eliminate all 
forms of racial segregation. It has been described by its 
counsel as a political organization for those who oppose ra­
cial discrimination.

Affiliated with the NAACP are approximately one thou­
sand unincorporated branches operating in forty-five states 
and the District of Columbia. The branches are chartered 
by the NAACP, and, for failure of the branch officers to 
follow strictly the policies and directives of the national 
body, their charters may be revoked or their officers re­
moved. The branches are generally grouped together in 
each state into an unincorporated association. In Virginia 
the association is known as the Virginia State Conference 
of NAACP Branches.

The State Conference holds annual conventions which 
are attended by delegates from the local branches. It takes 
the lead in NAACP’s activities in this State under the ad­
ministration of a full-time salaried executive secretary who 
is responsible to a board of directors. The executive sec­
retary coordinates the activities of the branches in accord­
ance with the policies and objectives of the Conference and



5a

the NAACP, supervises local membership and fund rais­
ing campaigns, distributes educational material dealing 
with racial matters, and performs many other duties.

The executive secretary, members of the legal staff, and 
other representatives of the State Conference make 
speeches before local branches and other groups for the 
purpose of advising those present that all segregation laws 
are unconstitutional and void, and urging them to chal­
lenge laws to eliminate segregation through the institution 
of legal proceedings which the State Conference, the 
NAACP and the Fund sponsor at no cost to the litigants.

The aid given litigants to initiate suits is in the form 
of furnishing lawyers who are members of the legal com­
mittee of the Conference, the NAACP, and regional counsel 
of the Fund, the payment of court costs and other expenses 
of litigation.

The Conference receives financial support to defray the 
cost of litigation it sponsors and other expenses from the 
local branches, the national bodies, and contributions.

Letters and directives addressed to officers of local 
branches and signed by the executive secretary of the Con­
ference, filed as exhibits by the appellees, show the plans, 
methods and procedures used by the NAACP to sponsor lit­
igation in school cases.

A  letter dated May 26, 1954, reads in part as follows: 
“ It is of utmost importance that your branch retain the 

leadership in all actions engaged in in your community. ’ ’
In a letter dated June 16, 1954, it is said:
‘ ‘ The Conference is proceeding with the development of 

its plan and will advise you thereof as soon as this work is 
completed.”

A  confidential directive of June 30, 1955, from the presi­
dent and executive secretary to local branches relative to 
the handling of petitions for presentation to local school 
boards stated in part as follows:

“ Petitions will be placed only in the hands of highly 
trusted and responsible persons to secure signatures of 
parents or guardians only.



6a

“ The signing of the petition by a parent or guardian 
may well be only the first step to an extended court fight. 
Therefore, discretion and care should he exercised to se­
cure petitioners who will—if need be—go all the way. * * *

“ The Education Committee chairman will forward 
completed petitions to the Executive Secretary of the 
State Conference. * * *

“ Following the above procedure, it becomes apparent 
that the faster your branches act the sooner will your 
school board be petitioned to desegregate your schools. 
Every act of our branch and the State Conference officials 
from this point on should be considered as an emergency 
action, and must take precedence over routine affairs— 
personal or otherwise.”

Another directive contained in part these instructions:
“ Organize the parents in the community so that as 

many as possible will be familiar with the procedure when 
and if law suits are begun in behalf of plaintiffs and parents.

“ I f no plans are announced or steps taken towards de­
segregation by the time school begins this fall, 1955, the 
time for law suits has arrived. At this stage court action 
is essential because only in this way does the mandate of 
the Supreme Court that a prompt and reasonable start 
towards full compliance become fully operative on the 
school boards in question.

“ At this stage the matter will be turned over to the 
Legal Department and it will proceed with the matter in 
court. ’ ’

An official report of NAACP and its Virginia Confer­
ence activities from May 17, 1954, to September 13, 1957, 
shows the purpose and a continuation of their method of 
operation as follows:

“ U p to D ate P icture op A ction by N A A C P  B ranches 
Since M ay 31.

“ A. Petitions filed and replies.
“ A total of 55 branches have circulated petitions.
“ B. Where suits are contemplated.



7a

“ Petitions have been tiled in seven (7) counties/cities. 
Graduated negative response received in all cases.

“ C. Readiness of lawyers for legal action in certain 
areas.

“ Selection of suit sites reserved for legal staff.
“ State legal staff ready for action in selected areas.
“ D. Do branches want legal action?
“ The majority of our branches are willing to support 

legal action or any other program leading to early desegre­
gation of schools that may be suggested by the National 
and State Conference officers. Our branches are alert to 
overtures by public officials that Negroes accept voluntary 
racial segregation in public education.”

An explanation of the above report was made by the 
executive secretary of the Conference as follows: The
language, “ Where suits are contemplated,”  referred to 
places where petitions had been denied by local school 
boards; “ Readiness of lawyers for legal action in certain 
areas, ’ ’ meant financial aid was available; and ‘ ‘ Selection 
of suits reserved for legal staff,”  meant that members of 
the legal staff would pick the places where suits would be 
brought.

The State Conference maintains a legal staff of fifteen 
members, one of whom serves as chairman without compen­
sation for that particular service. The members of the 
staff are elected at the annual convention of the Conference 
after being nominated by a committee, which in turn re­
ceives its recommendations for candidates from the chair­
man of the legal staff, and there have never been additional 
nominations from the floor of the convention.

The members of the legal staff of the Conference are re­
imbursed for expenses incurred in speaking before local 
branches and other groups and are paid fees at the rate of 
$60.00 per day for their services in cases in which NAACP 
has interested itself, “ as long as such attorneys adhere 
strictly to NAACP policies,”  namely, that a school case 
must be tried as a direct attack on segregation. Every 
item of expense and all legal fees paid by the Conference



8a

are approved by the chairman of the legal staff, except the 
expenses and fees of its chairman, which are approved by 
the president of the Conference. One member of the legal 
staff testified that he entered two of the school segregation 
cases at the suggestion of the chairman, and that the rela­
tionship “ has been so pleasant and so profitable.”  Only 
members of the legal staff are selected by NA A OP to bring 
suits in which it has an interest, and the places for bring­
ing such suits are selected by the chairman, who refers the 
case to a member of the legal staff residing in the area from 
which the complaining party came. Without exception, 
when a member of the legal staff brings a lawsuit in his 
community other members of the staff are associated with 
him.

The chairman of the legal staff of the Conference is a 
member of the legal committee of the NAACP, Virginia 
counsel for the NAACP, and its registered Virginia agent.

The NAACP is not a legal aid society. Its policy dur­
ing the past several years has been not to participate in 
cases simply because Negroes need assistance on account of 
poverty. Assistance is given only in cases involving con­
stitutional rights, and then only so long as litigants adhere 
to the principles and policies of the NAACP and the Con­
ference.

The initial contact in the Charlottesville school segrega­
tion case was made by the president of the local branch 
of the NAACP when he requested the chairman of the legal 
staff to speak at a meeting of parents of certain school 
children. At this meeting some of the parents signed 
authorization forms for the chairman to represent such 
parents and their children in legal proceedings to desegre­
gate the schools of that city. Other authorization forms 
were distributed and signed with no attorney’s name 
appearing thereon, but the name of the chairman of the 
legal staff was inserted later.

In the Arlington school case, the petition presented to 
the local school board for desegregation of the schools 
was prepared by the State Conference, and most of the



9a

signatures were obtained by the vice-president of the 
Arlington branch, who was also one of the plaintiffs in 
a suit later instituted. She was told by the chairman of 
the legal committee of the Conference and the regional 
counsel of the Fund that they would institute legal pro­
ceedings if the school board denied the request to desegre­
gate the schools.

All authorization forms used in the school segregation 
cases were prepared by the chairman of the legal staff 
and most of them authorized the attorney named therein 
to associate such other attorneys as he desired. Usually, 
the general counsel of the NAACP and the regional counsel 
of the Fund are associated in the trial of cases sponsored 
by the Conference, even though such association is not 
directly authorized by the litigants.

Ordinarily a complaint is filed with the executive secre­
tary, who refers it to the chairman of the legal staff, and 
the chairman with the concurrence of the president of the 
Conference, decides whether suit will be instituted. The 
executive secretary, however, testified that he did not 
refer any of the plaintiffs in the school segregation cases 
to the chairman of the legal staff.

Many of the litigants in school cases had no personal 
contact with any of the lawyers handling cases in which 
their names appeared as parties plaintiff, and learned 
of the institution of suits from newspaper accounts. Some 
of the litigants stated that they did not know the names 
of the lawyers representing them, but they did know they 
were NAACP lawyers.

Only one witness, out of some twenty-four litigants in 
school cases, testified that he would have instituted legal 
proceedings if the NAACP had not agreed to finance them.

The Fund has a small membership and no affiliates. Its 
financial support comes from contributions solicited bv 
letters and telegrams from New York City. The purpose 
of the Fund, as stated in its certificate of incorporation, is 
as follows:



10a

“ (a) To render legal aid gratuitously to such Negroes 
as may appear to be worthy thereof, who are suffering legal 
injustice by reason of race or color and unable to employ 
and engage legal aid and assistance on account of poverty.

“  (b) To seek and promote the educational facilities for 
Negroes who are denied the same by reason of race or 
color.

“ (c) To conduct research, collect, collate, acquire, com­
pile and publish facts, information and statistics concern­
ing educational facilities and educational opportunities 
for Negroes and the inequality in the educational facilities 
and educational opportunities provided for Negroes out of 
public funds, and the status of the Negro in American life.”  

The director-counsel of the Fund is charged with the 
duty of carrying out the purposes set out in the charter 
and the policies fixed by its board of directors. He has 
under his direction a legal research staff of six full-time 
lawyers who reside in New York City but who may be 
assigned to places out of New York. In addition to the 
full-time legal staff, the Fund has five regional counsel, 
including one residing in Richmond, Virginia, at an annual 
retainer of $6,000. The Fund also has at its disposal 
social scientists, teachers of government, anthropologists 
and sociologists who are used principally in cases involving 
school litigation.

The regional counsel of the Fund residing in Richmond, 
Virginia, is also a member of the legal staff of the Con­
ference and the legal committee of the NAACP.

The Fund has been approved by the State of New York 
to operate as a legal aid society because of the provisions 
of the barratry statute of New York, but counsel stated it 
does not operate as such. A representative of the Fund 
testified in the case of the National Association for the 
Advancement of Colored People v. Patty, supra, that it 
furnishes legal assistance when a Conference lawyer re­
quests it or when it is revealed from an investigation, made 
by the New York office through its regional counsel or 
one of the lawyers on the State Conference staff, that



11a

discrimination exists because of race or color. All costs 
and expenses incurred in such suits brought on behalf of 
Negroes are borne by the Fund. The assistance given may 
be in the form of providing lawyers to assist Conference 
staff lawyers in the trial of a case, or in the preparation 
of briefs.

Most of the litigants in the school segregation cases 
brought in this State were financially able, according to 
the standards set by the Fund, to finance their own pro­
ceedings.

[1] The appellants contend that chapters 33 and 36 
are: (1) penal statutes and should be strictly construed; 
(2) that the statutes are vague and ambiguous; (3) that 
the language of the statutes cannot be construed to apply 
to their activities; and in addition the NAACP says (4) 
if the statutes are construed to apply to their activities 
they are unconstitutional and void because they deny to it, 
its officers, employees, members, contributors, affiliates 
and attorneys the rights of freedom of speech and as­
sembly, equal protection of the laws and due process of 
law under the Fourteenth Amendment to the Constitution 
of the United States.

Chapter 33 amends and re-enacts §§ 54-74, 54-78 and 54- 
79, Code of 1950. The pertinent parts of the chapter, with 
the amended parts in italics, are set out in the margin 
below.2 These sections deal with solicitation of any legal

2 Be it enacted by the General Assembly of Virginia:
1. That at 54-74, 54-78 and 54-79 of the Code of Virginia be 

amended and re-enacted as follows:
§ 54-74.

*  * *  *

(6 ) “Any malpractice, or any unlawful or dishonest or unworthy 
or corrupt or unprofessional conduct” , as used in this section, shall be 
construed to include the improper solicitation of any legal or profes­
sional business or employment, either directly or indirectly, or the 
acceptance of employment, retainer, compensation or costs from any 
person, partnership, corporation, organization or association with 
knowledge that such person, partnership, corporation, organization 
or association has violated any provision of Article 7 of this chapter,

[Continued on page 12a]



12a

or professional business or employment, either directly or 
indirectly, and provide for the disbarment of attorneys

[Continued from page 11a]
or the failure, without sufficient cause, within a reasonable time after 
demand, of any attorney at law, to pay over and deliver to the person 
entitled thereto, any money, security or other property, which has 
come into his hands as such attorney; provided, however, that nothing 
contained in this Article shall be construed to in any way prohibit 
any attorney from accepting employment to defend any person, part­
nership, corporation, organisation or association accused of violat­
ing the provisions of Article 7 of this chapter.

*  *  *

§ 54-78. As used in this article:
(1 ) A  “ runner” or “ capper” is any person, corporation, partner­

ship or association acting in any manner or in any capacity as an 
agent for an attorney at law within this State or for any person, part­
nership, corporation, organisation or association which employs, 
retains or compensates any attorney at law in connection with any 
judicial proceeding in which such person, partnership, corporation, 
organization or association is not a party and in which it has no 
pecuniary right or liability, in the solicitation or procurement of 
business for such attorney at law * or for such person, partnership, 
corporation, organisation or association m connection with any 
judicial proceedings for which such attorney or such person, part­
nership, corporation, organization or association is employed, retained 
or compensated.

The fact that any person, partnership, corporation, arganization 
or association is a party to any judicial proceeding shall not authorise 
any runner or capper to solicit or procure business for such person, 
partnership, corporation, organisation or association, or any attorney 
at law employed, retained or compensated by such person, partner­
ship, corporation, organisation or association.

(2 ) An “ agent” is one who represents another in dealing with a 
third person or persons.

§ 54-79. It shall be unlawful for any person, corporation, part­
nership or association to act as a runner or capper * as defined in 
§ 54-78 to solicit any business for * an attorney at law or such per­
son, partnership, corporation, organization or association, in and 
about the State prisons, county jails, city jails, city prisons, or other 
places of detention of persons, city receiving hospitals, city and county 
receiving hospitals, county hospitals, police courts, * county courts, 
municipal courts, * courts of record, or in any public institution or 
in any public place or upon any public street or highway or in and 
about private hospitals, sanitariums or in and about any private in­
stitution or upon private property of any character whatsoever.



13a

guilty of “ malpractice, or [of] any unlawful or dishonest 
or unworthy or corrupt or unprofessional conduct.”

The 1956 amendment to § 54-74, subsection (6), broadens 
the definition of “ malpractice”  to include the acceptance 
of employment from any person, partnership, corporation, 
organization or association with knowledge that such per­
son, etc., has violated any provision of article 7, chapter 
4, title 54, Code of 1950, (§§54-78 to 54-83, inclusive).

The amendment to § 54-78 broadens the definition of 
“ runner”  or “ capper”  to include any person, association 
or corporation acting as an agent for another person, 
association or corporation who or which employs an attor­
ney in connection with any judicial proceeding in which such 
person, association or corporation is not a party and has 
no pecuniary right or liability therein.

The amendment to § 54-79 broadens the offense spe­
cified which theretofore made it unlawful for any person, 
corporation, partnership or association to act as a runner 
or capper for an attorney at law or to solicit any business 
for him, to make it unlawful for a person, association or 
corporation to solicit any business for an attorney at law 
or any other person, corporation or association.

Violations of § 54-79 are made misdemeanors, and the li­
cense of any attorney violating any of the provisions of 
chapter 33 is subject to revocation or suspension.

While it is true that penal statutes are to be strictly 
construed, yet in construing such statutes the intention of 
the legislature must govern, and such intent may be found 
by giving to the words used their ordinary and usual mean­
ing. Tiller v. Commonwealth, 193 Va. 418, 420, 69 S. E. 2d 
441, 443; Northrop & Wickham v. Richmond, 105 Va. 335, 
339, 53 S. E. 962, 963; Gates & Son Co. v. Richmond, 103 
Va. 702, 706, 707, 49 S. E. 965, 966.

We find no vagueness or ambiguity in the language of 
chapter 33. The words used are clear and definite in their 
meaning.

It is clear from the language of the act that the intent 
and purpose of the legislature in amending and re-enact­



14a

ing chapter 33 was to strengthen the existing statutes to 
further control the evils of solicitation of legal business for 
the benefit of attorneys by a person who is not a party to 
a proceeding and in which he has no pecuniary right or lia­
bility. Solicitation of legal business has been considered 
and declared from the very beginning of the legal profes­
sion to be unethical and unprofessional conduct.

[2] There is no merit in the contention of the appellants 
that the statutes cannot be construed to apply to their ac­
tivities. When we apply the plain language and meaning 
of the statutes to the evidence, it is perfectly manifest that 
the NAACP, its Virginia Conference, its branches and the 
Fund are engaged in the unlawful solicitation of legal busi­
ness for their attorneys, in which resulting litigation they 
are not parties and have no pecuniary right or liability, in 
violation of chapter 33.

The declared purpose of the NAACP and the Fund is to 
eradicate every form of racial discrimination. To accom­
plish this objective the NAACP has organized Negroes 
throughout the Commonwealth into branches, and formed a 
legal staff for the purpose of directing and controlling all 
actions pertaining to racial matters. Members of the 
N AACP, representatives of the Conference and its legal 
staff appear before the membership of local branches and 
other groups in communities in which the organizations 
wish suits to be brought and by persuasive methods urge 
those present to assert their constitutional rights to elimi­
nate racial discrimination by becoming parties plaintiff to 
legal proceedings, when many of the prospective litigants 
have had no previous thought of doing so. The services of 
attorneys selected by the NAACP, its Conference and the 
Fund are offered at no cost to the prospective litigants as 
an inducement to institute suits. The litigants and attor­
neys, however, must adhere to a policy of permitting the 
NAACP, the Conference and the Fund to direct and control 
the litigation.



15a

The absence of the usual contact between many of the 
litigants and the attorneys instituting proceedings is indic­
ative of the control of the litigation by the NAACP and 
the Conference.

Since the appellants do not operate as legal aid societies, 
the financial ability of litigants to prosecute their own cases 
is not considered by the NAACP, the Conference and the 
Fund in soliciting litigants. A  person does not have to be 
indigent for the NAACP, the Conference and the Fund to 
pay all costs of litigation.

The communications and activities of the NAACP, the 
Conference and branches, indicate their plans, methods and 
procedures in obtaining litigants, and may be summarized 
as follows:

“  * * * ]yxr. Thurgood Marshall, chief legal counsel of P 
the NAACP, has said that the hardest job his staff has had 'fos ^  
in bringing equal-education suits has been to persuade 
Negro teachers and representative Negro parents to stand 
as plaintiffs. * * (The National Association for the Ad­
vancement of Colored People; A  Case Study in Pressure 
Groups, St. James, Exposition Press, Inc., at p. 107.)

In short, the activities of the NAACP, its Conference 
and the Fund clearly show that they are engaged in fo­
menting and soliciting legal business in which they are not 
parties and have no pecuniary right or liability, and which 
they channel to the enrichment of certain lawyers employed 
by them, at no cost to the litigants and over which the liti­
gants have no control.

There was evidence on behalf of the Fund in the record 
of the case of the National Association for the Advance­
ment of Colored People v. Patty, supra, heard by the three- 
judge Federal court, and filed as a part of the record in 
these causes, that it participates in cases only when a pros­
pective litigant appears and requests assistance. However, 
that does not appear to be the case under the additional 
evidence taken in these causes, much of which was heard 
ore tenus by the court below. Legal business is solicited by



16a

the NAACP, representatives of the Conference and its legal 
staff, of which the regional counsel for the Fund is a mem­
ber, and he and the Fund are fully acquainted with methods 
and procedures used to obtain litigants to whom the Fund 
gives assistance. The evidence shows that the regional 
counsel of the Fund is usually associated with Conference 
lawyers in school segregation cases, although he is not gen­
erally named in the authorization or power of attorney to 
institute suit.

[3] There is no merit in the appellants’ argument that 
their activities are not what are commonly considered by 
the legal profession as solicitation of business contrary to 
the canons of legal ethics. They rely on several cases which 
are readily distinguishable under the facts from these 
causes now before us. Typical of the cases cited is Gunnels 
v. Atlanta Bar Association, 191 Ga. 366, 12 S. E. 2d 602, 
132 A. L. R. 1165.

In the Gunnels case the court upheld the right of the 
Atlanta Bar Association to furnish counsel to persons who 
had been victims of sharp loan practices. The attorneys 
did not receive compensation for their services and the 
Bar Association did not stand between counsel and client 
or exercise control over the litigation. The usual and 
proper relationship of attorney and client existed in that 
case, which does not exist under the evidence in the causes 
now before us.

In referring to the relationship that should exist between 
attorney and client, in the case of Richmond A ss ’n of Credit 
Men v. Bar Association, 167 Ya. 327, 189 S. E. 153, this 
Court quoted with approval the following (167 Va. at p. 
335, 189 S. E. at p. 157):

“  ‘The relation of attorney and client is that of master 
and servant in a limited and dignified sense, and it involves 
the highest trust and confidence. It cannot be delegated 
without consent, and it cannot exist between an attorney 
employed by a corporation to practice law for it, and a 
client of the corporation, for he would be subject to the



17a

directions of the corporation and not to the directions of 
the client.’ Re Co-Operative Law Co., 198 N. Y. 479, 92 
N. E. 15, 16, 32 L. R. A. (N. S.) 55, 139 Am. St. Rep. 839, 
19 Ann. Cas. 879.”

The acceptance of employment by an attorney in cases 
in which the NAACP, its Conference and branches act as 
intermediaries in the solicitation of legal business not only 
violates chapter 33, but also canons 35 and 47 of the canons 
of professional ethics adopted by this Court on October 21, 
1938, 171 Va. p. xxxii.

Canon 35 reads in part as follows:
“ Intermediaries.— The professional services of a lawyer 

should not be controlled or exploited by any lay agency, 
personal or corporate, which intervenes between client and 
lawyer. A  lawyer’s responsibilities and qualifications are 
individual. He should avoid all relations which direct the 
performance of his duties by or in the interest of such inter­
mediary. A  lawyer’s relation to his client should be per­
sonal, and the responsibility should be direct to the client. 
Charitable societies rendering aid to the indigent are not 
deemed such intermediaries.”  171 Va. p. xxxii.

Canon 47 reads as follows:
“ Aiding the Unauthorized Practice of Law.—No lawyer 

shall permit his professional services, or his name, to be 
used in aid of, or to make possible, the unauthorized prac­
tice of law by any lay agency, personal or corporate.”  171 
Ya. p. xxxv.

In the Ninth Annual Report of the Virginia State Bar, 
p. 39, is found an opinion, rendered by the Committee on 
Unauthorized Practice, which is pertinent in these causes. 
A union retained an attorney on a salary basis to represent 
all of its individual members in their claims for compensa­
tion before the State Industrial Commission. He received 
no fees from the individuals for such representation. His 
sole compensation came from the salary paid him by the 
union. The committee held that the union was engaged in



18a

the practice of law without a license; that it was intervening 
between the attorney and his clients; and that the attorney 
was violating the canons of legal ethics.

Courts from other jurisdictions have held that corpora­
tions or associations carrying on activities somewhat simi­
lar to those of the appellants were engaged in the illegal 
practice of law and their attorneys were violating the 
canons of legal ethics.

In re Maclub of America, Inc., 295 Mass. 45, 3 N. E. 2d 
272, 105 A. L. R. 1360, an automobile association had been 
formed for the purpose of furnishing its members with 
lists of attorneys who would perform services for suck 
members free of charge. The attorneys looked to the as­
sociation for payment, but the association took no part in 
the direction or control of the case. The court held that the 
association was engaged in the illegal practice of law; 
that the relationship of attorney and client did not exist 
between the association’s members and the attorney; that 
the particular attorney was compensated by the association 
and subject to its instructions; that the association pos­
sessed the right to hire and fire; and that the practice was 
considered a contract to furnish legal assistance rather than 
a contract to pay for legal assistance.

In People ex rel. Courtney v. Association of Real Estate 
Taxpayers, 354 111. 102, 187 N. E. 823, 826, a corporation 
was organized to permit united protection of certain tax­
payers in matters of taxation and legislation. The owners 
of real estate were invited to become members by the pay­
ment of a fee. Attorneys were selected and paid by the 
corporation to represent it in taxation litigation and the cor­
poration would determine what questions would be litigated. 
The court held that, even though suits were brought in the 
names of individual members, and fees would have cost an 
individual approximately $200,000, the corporation was en­
gaged in the illegal practice of law.



19a

For other cases, see People ex rel. Chicago Bar Associa­
tion v. Chicago Motor Club, 362 111. 50, 199 N. E. 1; (a non­
profit corporation) Doughty v. Grills, 37 Tenn. App. 63, 
260 S. W. 2d 379; Hildebrand v. State Bar of California, 
36 Cal. 2d 504, 225 P. 2d 508; Atchison, Topeka <& Santa Fe 
Railway Co. v. Jackson (10 Cir.), 235 F. 2d 390, 393; In re 
Brotherhood of Railroad Trainmen, 13 111. 2d 391, 150 N. E. 
2d 163, 167.

[4] The appellants also argue that because they are 
aiding others in asserting their constitutional rights chap­
ter 33 should not be construed to limit their activities. 
This argument is without merit. Statutes enacted by the 
General Assembly in the public interest to regulate the 
practice of law cannot be violated, and canons of legal 
ethics should not be ignored simply because constitutional 
rights are asserted. The law provides a procedure for one 
to follow in asserting his constitutional rights, as well as 
all other legal rights, and the objective may be achieved 
without violating statutes and the standards of the legal 
profession.

[5} The NAACP next contends that chapter 33 is un­
constitutional and void because it violates the rights of 
freedom of speech and assembly, and denies to it, its af­
filiates, officers, employees, voluntary workers, attorneys 
and contributors due process of law and the equal protec­
tion of the laws guaranteed by the Fourteenth Amendment 
to the Constitution of the United States. There is no merit 
in this contention.

In support of the argument that chapter 33 violates 
their rights of freedom of speech and assembly, protected 
under the First Amendment and guaranteed by the Four­
teenth Amendment to the Constitution of the United States, 
they.rely on such cases as Watkins v. United States, 354 U. S. 
178, 77 S. Ct. 1173,1 L. ed. 2d 1273; Sweezy v. State of'New 
Hampshire, 354 U. S. 234, 77 S. Ct. 1203, 1 L. ed. 2d 1311; 
and Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 89 L. 
ed. 430.



20a

In the Watkins case, supra, a congressional committee 
inquired of a witness as to his past associations and he re­
fused to identify his associates during that period on the 
ground that he did not believe they were now identified with 
the Communist Party and the questions asked were “ out­
side the proper scope of the committee’s activities.”  On 
appeal from his conviction for contempt, the Supreme Court 
held that the pertinency of the question had not been shown; 
that Congress had not authorized the committee to make 
an investigation of this nature; and that a conviction for 
contempt for refusal to answer could not be sustained.

In Sweezy v. State of New Hampshire, supra, the wit­
ness, a teacher in the State university, refused to tell a 
committee of the state legislature the substance of a lec­
ture he had given at the university, or anything about his 
opinions and beliefs, on the grounds that the questions were 
not pertinent to the inquiry and infringed on his freedom 
of speech, protected under the First Amendment. The 
court held that the witness was not in contempt, since the 
resolution of the legislature authorizing the inquiry was 
not broad enough to permit the question.

Obviously, the holdings in the Watkins and Sweezy 
cases have no application here, since the court’s decisions 
rested on the relevancy and pertinency of the questions 
asked by the committees.

It is true that under the holding in the case of Thomas 
v. Collins, supra, representatives of the NAACP and the 
Conference have a right to peaceably assemble with the 
members of the branches and other groups to discuss with 
and advise them relative to their legal rights in matters 
concerning racial segregation. But under the evidence of 
the causes before us the appellants and their associates go 
beyond that. They solicit prospective litigants to author­
ize the filing of suits by NAACP and Fund lawyers, who 
are paid by the Conference and controlled by NAACP 
policies, in violation of chapter 33.



21a

Chapter 33 does not deny the appellants, or those asso­
ciated with them, freedom to speak and assemble. The pur­
pose and intent of the chapter is to regulate the practice of 
law and to bring such practice in harmony with the ethical 
standards of the profession. It prohibits, under certain 
circumstances, the solicitation of legal business. The pro­
hibition of solicitation of legal business is merely a regu­
lation in the interest of the public and the legal profession.

A State, under its police power, has the right to require 
high standards of qualifications and ethical conduct from 
those who desire to practice law within its borders (Brad- 
well v. Illinois, 83 U. S. (16 Wall.) 130, 139, 21 L. ed. 442; 
Scliware v. Board of Bar Examiners of the State of )New 
Mexico, 353 U. S. 232, 77 S. Ct. 752, 756, 1 L. ed 796, 64 
A. L. R. 2d 288), and it may revoke or suspend the license 
to practice law of attorneys who are guilty of unethical 
conduct. Richmond Association of Credit Men v. Bar A s­
sociation, 167 Ya. 327, 334-336, 189 S. E. 153, 157; Campbell 
v. Third District Committee, 179 Va, 244, 249, 250, 18 S. E. 
2d 883, 885.

A  statute which forbids laymen to solicit employment 
for attorneys, or engage in the business of furnishing at­
torneys to render legal services, is a valid police regulation 
not violative of any constitutional restriction. McCloskey 
v. Tobin, 252 U. S. 107, 40 S. Ct. 306, 64 L. ed. 481; High­
tower v. Detroit Edison Co., 262 Mich. 1, 2(47 N. W. 97, 
86 A. L. R. 509; Kelly v. Boyne, 239 Mich. 204, 214 N. W. 
316, 53 A. L. R. 273; Chicago, B. & Q. R. Co. v. Davis, 111 
Neb. 737, 197 N. W. 599, 601; 14 C. J. S., Champerty and 
Maintenance, § 35, p. 381; Anno. 53 A. L. R., p. 279-280.

[6] We shall now direct our attention to chapter 36 
(§§ 18-349.31 to 18-349.37, inclusive, Code of 1950, as 
amended, 1958 Cum. Supp.) Acts of Assembly, Ex. Sess.



22a

195G, p. 37, the pertinent parts of which are printed in 
the margin.3

3 Be it enacted by the General Assembly of Virginia:
1. § 1. (a) It shall be unlawful for any person not having a 

direct interest in the proceedings, either before or after proceedings 
commenced:

to promise, give or offer, or to conspire or agree to promise, 
give or offer, or

to receive or accept, or to agree or conspire to receive or ac­
cept, or

to solicit, request or donate.
Any money, bank note, bank check, chose in action, personal 

services or any other personal or real property, or any other thing of 
value, or any other assistance as an inducement to any person to 
commence or to prosecute further any original proceeding in any 
court of this State, or before any board or administrative agency 
within the said State, or in any United States court located within 
the said State against the Commonwealth of Virginia, any depart­
ment, agency or political subdivision thereof, or any person acting 
as an officer or employee for either or both or any of the foregoing; 
provided, however, this section shall not be construed to prohibit 
the constitutional right of regular employment of any attorney at law, 
for either a fixed fee or upon a contingent basis, to represent such 
person, firm, partnership, corporation, group, organization or associa­
tion before any court or board or administrative agency.

(b ) It shall be unlawful for any person, not related by blood or 
marriage or who does not occupy a position of trust or a position in 
loco parentis to one who becomes the plaintiff in a suit or action,, who 
has no direct interest in the subject matter of the proceeding and 
whose professional advice has not been sought in accordance with 
the Virginia canons of legal ethics, to advise, counsel or otherwise 
instigate the bringing of a suit or action against the Commonwealth 
o f Virginia, any department, agency or political subdivision thereof, 
or any person acting as an officer or employee for either or both or 
any of the foregoing.

(c )  As used in this act, “ person” includes person, firm, partner­
ship, corporation, organization or association; “ direct interest” means 
a personal right or a pecuniary right or liability.

[Continued on page 23a]



This chapter, like chapter 33, deals with the regulation 
and supervision of the practice of law and is a valid legis­
lative enactment under the State’s police power unless it 
invades rights protected and guaranteed by the State and 
Federal Constitutions.

The NAACP contends that the chapter is unconstitu­
tional and void because it violates the rights of freedom of 
speech and assembly and denies to it, its officers, employees, 
voluntary workers, attorneys and contributors due process 
of law and the equal protection of the laws under the Four­
teenth Amendment to the Constitution of the United States.

On the other hand, the appellees say that the chapter does 
not violate any constitutional guarantees, and that under

[Continued from page 22a]

(d ) Any person violating any of the provisions of § 1 of this act 
shall be guilty of a misdemeanor and, upon conviction thereof, shall 
be fined not more than one thousand dollars or confined in jail for 
not more than one year, or both.

*  * *  *

§ 6. This act shall not be applicable to attorneys who are parties 
to contingent fee contracts with their clients where the attorney does 
not protect the client from payment of the costs and expense of 
litigation, nor shall this act apply to a mandamus proceeding against 
the State Comptroller, nor shall this act apply to any matter involv­
ing zoning, annexation, bond issues, or the holding or results of any 
election or referendum, nor shall this act apply to suits pertaining 
to or affecting possession of or title to real or personal property, re­
gardless of ownership, nor shall this act apply to suits involving the 
legality of assessment or collection of taxes or the rates thereof, nor 
shall this act apply to suits involving rates or charges or services 
by common carriers or public utilities, nor shall this act apply to 
criminal prosecutions, nor to the payment of attorneys by legal 
aid societies approved by the Virginia State Bar, nor to proceed­
ings to abate nuisances. Nothing herein shall be construed to be in 
derogation of the constitutional right of real parties in interest to em­
ploy counsel or to prosecute any available legal remedy under the laws 
of this' State. The provisions hereof shall not affect the right of a law­
yer in good faith to advance expenses as a matter of convenience 
but subject to reimbursement.



the evidence the appellants have violated the statute, which 
is merely a common law definition of maintenance 4 with 
the recognized exceptions.

Section 1(a) of the act makes it unlawful, with certain 
exceptions, for any person not having a “ direct interest”  
in a legal proceeding to promise, give, offer, donate money, 
personal services, or any other thing of value, or “ any 
other assistance as an inducement to any person to com­
mence or to prosecute further any original proceeding 
in any court of this State, or before any board or adminis­
trative agency within the said State, or in any United 
States court located within the said State against the 
Commonwealth of Virginia,”  its agencies or political sub­
divisions, or any officer or employee thereof. (Emphasis 
added.)

Section 1(b) makes it “ unlawful for any person, not 
related by blood or marriage or who does not occupy a 
position of trust or a position in loco parentis to one who 
becomes the plaintiff in a suit or action, who has no direct 
interest in the subject matter of the proceeding and whose 
professional advice had not been sought in accordance with 
the Virginia canons of legal ethics, to advise, counsel or 
otherwise instigate the bringing of a suit or action against 
the Commonwealth of Virginia, any department, agency 
or political subdivision thereof, or any person acting as 
an officer or employee for either or both or any of the 
foregoing.”  (Emphasis added.)

We have frequently said that the test of the constitu­
tional validity of a law is not merely what has been done 
under it, but what may by its authority be done. Edwards 
v. Commonwealth, 191 Va. 272, 285, 60 S. E. 2d 916, 922;

4 Maintenance is “ an officious intermeddling in a suit that in no 
way belongs to one by maintaining or assisting either party with 
money or otherwise to prosecute or defend it.’’ 4 Blackstone’s Com­
mentaries, p. 135. See also 10 Am. jur., Champerty and Mainte­
nance, § 1, p. 549.



25a

Richmond v. Carneal, 129 Va. 388, 393, 106 S. E. 403, 405, 
14 A. L. R. 1341; Violett v. City of Alexandria, 92 Va. 561, 
574, 23 S. E. 909, 913, 31 L. R. A. 382.

Under § 1(a) a friend or neighbor of a poor man is 
prohibited from aiding him in asserting his claim against 
the Commonwealth, its agencies or political subdivisions, 
if his claim does not fall within the exceptions enumerated 
in § 6 of chapter 36, no matter how meritorious it may be.

The law has always recognized the right of one to assist 
the poor in commencing or further prosecuting legal pro­
ceedings. To deny this right would be oppressive and 
enable the other party, if his means so permits, an advan­
tage over one with little means. Aiding the indigent is 
one of the generally recognized exceptions to the law of 
maintenance. Gilman v. Jones, 87 Ala. 691, 5 So. 785, 786- 
787; Rice v. Farrell, 129 Conn. 362, 28 A. 2d 7, 9; 14 C. J. S., 
Champerty and Maintenance, § 24, p. 368; 4 Blackstone’s 
Commentaries, ch. 10, pp. 135 et seq.

This section denies to an indigent person free access 
to the courts, both State and Federal, except those within 
the enumerated class under § 6 of chapter 36, which is a 
fundamental right of all men, and denies to him due process 
of law.

A  person who desires to aid an indigent suitor, unless 
his case falls within the expected class, is deprived, under 
the terms of the act, of his fundamental right to use his 
property in a lawful manner and is made criminally liable 
if he does give such aid.

[7] Where the principle of free discussion is concerned, 
it is the statute and not the accusation or the evidence under 
it which prescribes the limits of permissible conduct. 
Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. ed. 
1093.

Under § l ( b )  of the act, no person or association, in­
cluding the appellants, except those within the excepted 
classification, may advise or counsel any person or group



26a

with respect to instituting or prosecuting actions against 
the State, its agencies or political subdivisions, or their 
officers or employees, to assert what these persons or 
groups may believe are their legal or constitutional rights. 
Nor may the appellants render financial aid to these people 
in such litigation, even though the litigants may select and 
employ counsel of their own choosing, in accordance with 
the recognized canons of legal ethics.

This section denies the right of freedom of speech, guar­
anteed by the Virginia Bill of Rights (Constitution §12), 
secured by the First Amendment to the Constitution of the 
United States and guaranteed by the Fourteenth Amend­
ment, which give one the right to hold views on all con­
troversial questions, to express such views, and to dis­
seminate them to persons who may be interested, and 
neither the Federal nor State government can take any 
action which might prevent such free and general dis­
cussion of public matters as may seem to be essential to 
prepare people for an intelligent exercise of what they 
may consider to be their rights as citizens. See 16 C. J. S., 
Constitutional Law, § 213(1), pp. 1093, 1091, and the many 
cases there cited.

A  state may forbid one to practice law without a license, 
but it cannot prevent an unlicensed person from making 
a speech before an assembly, telling them of their rights 
and urging them to assert same. See Thomas v. Collins, 
supra, (concurring opinion, 323 U. S. 516, p. 544, 65 S. Ct. 
315, 89 L. ed 430).

State statutes must be specifically directed to acts 
or conduct which overstep legal limits, and not include 
those which keep within the protected area of free speech. 
Edwards v. Commonwealth, supra (191 Va. at p. 285, 60 
S. E. 2d at p. 922).

While the appellants, and those associated with them, 
cannot solicit and channel legal business to attorneys whom 
they pay, and who are subject to their directions, in viola­
tion of chapter 33, a statute which prohibits them from



27a

advising any person or group to institute suits for the 
purpose of asserting what they believe to be their legal 
rights is a denial of the right of freedom of speech, and 
is unconstitutional and void.

[8] Section 1(b) not only violates the right of free­
dom of speech, but § 6 of the act exempts from its opera­
tion a host of potential litigants, and says in effect that 
what is a criminal act when done by unexcepted litigants, 
including the appellants, is not a criminal act when done 
by excepted litigants. There is no reasonable basis for 
excepting a great number of litigants from the application 
of the act while making it applicable to others. Thus it 
denies to the unexcepted litigants the equal protection of 
the laws.

Equal protection of the laws, guaranteed under the 
Fourteenth Amendment, does not preclude a State from 
resorting to classification for purposes of legislation, but 
such classification must be reasonable and not arbitrary, 
and rest on some ground of difference or distinction which 
bears a fair and substantial relation to the subject or object 
of legislation, so that all persons similarly situated shall be 
treated alike. C. I. T. Corp. v. Commonwealth, 153 Va. 
57, 68, 149 S. E. 523, 525, 526; Bryce v. Gillespie, 160 Va. 
137, 143, 168 S. E. 652, 655.

For the reasons given, we hold:
(1) That chapter 33 is a valid regulation of the prac­

tice of law, enacted under the police power of the State, 
and is not violative of any constitutional restrictions;

(2) That the solicitation of legal business by the appel­
lants, their officers, members, affiliates, voluntary workers 
and attorneys, as shown by the evidence, violates chapter 
33 and the canons of legal ethics;

(3) That the attorneys who accept employment by ap­
pellants to represent litigants in suits solicited by the 
appellants, or those associated with them, are violating 
chapter 33 and the canons of legal ethics;



28a

(4) That chapter 36 is unconstitutional and void be­
cause it violates the right of freedom of speech under both 
the State and Federal Constitutions and denies due process 
of law and equal protection of the laws under the Four­
teenth Amendment. Therefore,

(a) the appellants and those associated with them may 
not be prohibited from acquainting persons with what they 
believe to be their legal rights and advising them to assert 
their rights by commencing or further prosecuting a suit 
against the Commonwealth of Virginia, any department, 
agency or political subdivision thereof, or any person act­
ing as an officer or employee of such, but in so advising 
persons to commence or further prosecute such suits the 
appellants, or those associated with them, shall not solicit 
legal business for their attorneys or any particular at­
torneys; and

(b) the appellants and those associated with them may 
not be prohibited from contributing money to persons to 
assist them in commencing or further prosecuting such 
suits, which have not been solicited by the appellants or 
those associated with them, and channeled by them to 
their attorneys or any other attorneys.

The decree appealed from is affirmed in part, reversed 
in part, and remanded for the entry of a decree consistent 
with the views expressed herein.

Affirmed in part; reversed in part; and remanded.



29a

(Judgment)

This day came again -the parties, by counsel, and the 
court having maturely considered the transcript of the rec­
ord of the decree aforesaid and arguments of counsel, is of 
opinion, for reasons stated in writing and filed with the 
record, that there is error only in part of the decree ap­
pealed from. It is therefore adjudged, ordered and de­
creed that the said decree, in so far as it holds that Chap­
ter 33, Acts of Assembly, Extra Session, 1956, is a consti­
tutional and valid enactment, and that the appellant and 
those connected with it in carrying out the activities of 
the appellant are in violation of the provisions of this chap­
ter, be, and the same is hereby affirmed.

It is further adjudged, ordered and decreed that the 
said decree, in so far as it holds that Chapter 36, Acts of 
Assembly, Extra Session, 1956, is a constitutional and valid 
enactment, be, and the same is hereby reversed and an­
nulled, and the cause is remanded to the said circuit court 
for the entry of a decree consistent with the views expressed 
in the said written opinion of this court.

And the appellees having substantially prevailed, it is 
further adjudged, ordered and decreed that the appellant 
pay to the appellees their costs by them expended about 
their defense herein.

Entered: September 2, 1960

(Denial of Petition for Rehearing)

(Filed October 12, 1960)

On mature consideration of the petition of National As­
sociation for the Advancement of Colored People, a corpo­
ration, appellant, to set aside the decree entered herein on 
September 2, 1960, and grant a rehearing thereof, the 
prayer of the said petition is denied.



30a

APPENDIX B

(Opinion of the United States District Court for the 
Eastern District of Virginia Entered January 21, 1958)

O -

N ational A ssociation for the A dvancement of Colored 
People, a corporation, N A A C P . Legal Defense and E du­
cational F und, I nc., a corporation,

Plaintiffs,
against

K enneth  C. Patty, Attorney General for the Common­
wealth of Virginia, et al.,

Defendants.
o

Before:
S oper, Circuit Judge and
H utcheson and H offman, District Judges.
H utcheson, District Judge concurring in part and dis­

senting.

S oper, Circuit Judge:
These companion suits were brought by the National 

Association for the Advancement of Colored People and 
the N. A. A. C. P. Legal Defense and Educational Fund, 
Inc., corporations of the State of New York, against the 
Attorney General of the Commonwealth of Virginia and 
the Commonwealth Attorneys for the City of Richmond, the 
City of Newport News, the City of Norfolk, Arlington 
County and Prince Edward County, Virginia, to secure a 
declaratory judgment and an injunction restraining and en­
joining the defendants from enforcing or executing Chap­
ters 31, 32, 33, 35 and 36 1 of the Acts of Assembly of the

1 These Acts have been respectively codified in the Code of 
Virginia at §§ 18-349.9 et seq., 18-349.17 et seq., 54-74, 78, 79; 
18-349.25 et seq., and 18-349.31 et seq.



31a

Commonwealth, all of which were passed at the Extra Ses­
sion convened between August 27, 1956, and September 29, 
1956, and were approved by the Governor of the Common­
wealth on September 29, 1956.

The suits are based on the allegation that the statutes 
are unconstitutional and void, in that they deny to the 
plaintiffs rights accorded to them by the Fourteenth 
Amendment to the Constitution of the United States.

Jurisdiction is invoked under the civil rights statutes, 
42 U. S. C. §§ 1981 and 1983 and 28 U. S. C. * 1343, under 
which the district courts have jurisdiction of actions 
brought to redress the deprivation under color of state law 
of any right, privilege or immunity secured by the Con­
stitution or statutes of the United States providing for 
equal rights of all persons within the jurisdiction of the 
United States. Jurisdiction is also invoked under 28 U. S. 
C. §§ 1331 and 1332 wherein jurisdiction is conferred upon 
the federal courts in all civil actions where the matter in 
controversy exceeds the sum of $3,000.00 exclusive of in­
terest and costs and arises under the Constitution and law 
of the United States or between citizens of different states. 
Accordingly, the present three-judge district court was set 
up under 28 U. S. C. § 2281 and evidence was taken upon 
which the following findings of facts are based.

The National Association for the Advancement of 
Colored People is a non-profit membership organization 
which was established in 1909 and incorporated under the 
laws of the State of New York in 1911. It is licensed to do 
business as a foreign corporation in the State of Virginia. 
The purposes of the corporation are set out in the state­
ment of its charter:

“ That the principal objects for which the corpo­
ration is formed are voluntarily to promote equality 
of rights and eradicate caste or race prejudice among 
the citizens of the United States; to advance the 
interests of colored citizens; to secure for them im­
partial suffrage; and to increase their opportunities 
for securing justice in the courts, education for their



32a

children, employment according to their ability, and 
complete equality before the law.

‘ ‘ To ascertain and publish all facts bearing upon 
these subjects and to take any lawful action thereon; 
together with any and all things which may lawfully 
be done by a membership corporation organized 
under the laws of the State of New lo rk  for the 
further advancement of these objects.”

The activities of the Association cover forty-four states, 
the District of Columbia and the Territory of Alaska. It 
is the most important Negro rights organization in the 
country (see 6 Western Res. L. Rev. 101, 102; 58 Yale L. J. 
574, 581), having approximately 1,000 unincorporated 
branches. A  branch consists of a group of persons in a 
local community who enroll the minimum number of mem­
bers and upon formal application to the main body are 
granted a charter. In Virginia, there are eighty-nme 
active branches. A  person becomes a member of a branch 
upon payment of dues which amount, at a minimum, to 
$2.00 per year and may be more at the option of the member, 
up to the sum of $500.00 for life membership. The regular 
dues of $2.00 per year are divided into two parts, one-half 
being sent to the national office in New York and one-half 
retained by the local branch.

In a number of states, including Virginia, the branches 
are voluntarily grouped into an unincorporated State Con­
ference, the expenses of which are paid jointly by the 
national organization and the local branches, each contribut­
ing 10-cents out of its share of each member’s dues. In 
Virginia, the branches contribute a greater sum for the 
support of their State Conference.

The principal source of income of the Association and 
its branches in the several states consists of the membership 
foes which are solicited in local membership drives. Other 
income is derived from special fund raising campaigns and 
individual contributions. In the first eight months of the 
year the greater number of annual membership drives



33a

are conducted. During that period in 1957 the Association 
enrolled 13,595 members in Virginia. This represents a 
sharp reversal of the rising trend in membership figures in 
the same eight-month period in the preceding three years, 
which showed 13,583 members in 1954, 16,130 in 1955 and 
19,436 in 1956. The income of the Association from its 
Virginia branches during the first eight months of 1957 
was $37,470.60 as compared with $43,612.75 for the same 
period in 1956. The total amount received by the Associa­
tion from Virginia was $38,469.59 in the first eight months 
of 1957 as compared with $44,138.71 for the same period in 
1956. The total income of the Association from the country 
as a whole for the year 1956 was $598,612.84 and $425,608.13 
for the first eight months of 1957.

At the top of the organizational structure of the national 
body is the annual convention, which consists of delegates 
representing the 1,000 branches in the several states. It 
has the power to establish policies and programs for the 
ensuing year which are binding upon the Board of Directors 
and upon the branches of the Association. Each year the 
convention chooses sixteen members of a Board of forty- 
eight Directors, each of whom serves for a term of three 
years. The Board of Directors meets eleven times a year 
to carry out the policies laid down by the convention. Under 
the Board an administrative staff is set up, headed by an 
executive secretary who, representing the Board, presides 
over the functioning of the local branches and State Con­
ferences throughout the country under the authority of the 
constitution and by-laws of the national body.

The Virginia State Conference takes the lead of the 
Association’s activities in the state under the administra­
tion of a full-time salaried executive secretary, by whom the 
activities of the branches in the state are co-ordinated and 
local membership and fund raising campaigns are super­
vised. The State Conference also holds annual conven­
tions attended by delegates from the branches, who elect 
officers and members of the Board of Directors of the



34a

Conference. Through its representatives the State Con­
ference appears before the General Assembly of Virginia 
and State Commissions in support of or in opposition to 
measures which in its view advance or retard the status of 
the Negro in Virginia. It encourages Negroes to comply 
with the statutes of the state so as to qualify themselves to 
vote, and it conducts educational programs to acquaint the 
people of the state with the facts regarding racial segrega­
tion and discrimination, and to inform Negroes as to their 
legal rights and to encourage the assertion of those rights 
when they are denied. In carrying out this program, the 
public is informed of the policies and objectives of the 
Association through public meetings, speeches, press re­
leases, newsletters and other media.

One of the most important activities of the State Con­
ference, perhaps its most important activity, is the contribu­
tion it makes to the prosecution of law suits brought by 
Negroes to secure their constitutional rights. It has been 
found, through years of experience, that litigation is the 
most effective means to this end when Negroes are sub­
jected to racial discrimination either by private persons or 
by public authority. Accordingly, the Virginia State Con­
ference maintains a legal committee or legal staff composed 
of thirteen colored lawyers located in seven communities 
scattered over the greater part of the state. The members 
of the legal staff are elected at the annual convention of the 
State Conference and they in turn elect a chairman. Ordi­
narily the legal staff is called into action upon a complaint 
made to one or more members of the staff by aggrieved 
parties, but sometimes a grievance is brought directly to 
the attention of the Executive Secretary of the Conference, 
and if in his judgment the case presents a genuine grievance 
involving discrimination on account of race or color, which 
falls within the scope of the work of the Association, he 
refers the parties to the Chairman of the legal staff. If 
the Chairman approves the complaint, he recommends 
favorable action to the President of the State Conference



35a

and if he concurs, the Conference obligates itself to defray 
in whole or in part the costs and expenses of the litigation. 
With rare exceptions the attorneys selected by the com­
plainant to bring the suit have been members of the legal 
staff. When a law suit has been completed the attorney is 
compensated by the Conference for out-of-pocket expendi- 
tui'es, including travel and stenographic services, and is 
also paid per diem compensation for the time spent in his 
professional capacity. No money ever passes directly to 
the plaintiff or litigant. The attorneys appear in the course 
of the litigation for and on behalf of the individual litigants, 
who in every instance authorize the institution of the suit.

In brief, the Association, in various forms, publicizes 
its policies against discrimination and informs the public 
that it will offer aid for the prosecution of a legitimate 
complaint involving improper discrimination. Thus it is 
generally known that the State Conference will furnish 
money for litigation if the proper need arises, but the 
Association does not take the initiative and does not act 
until some individual comes to it asking for help.

Sometimes a complainant seeks damages for violation of 
his rights, as in cases involving the treatment accorded 
Negroes in public conveyances. In such a case, the Associa­
tion ordinarily does not furnish aid if the complainant is 
financially able to prosecute his claim. In the most fruitful 
field of litigation in respect to public education, the rights 
of large numbers of colored people in the community are 
involved and a class suit is brought; and the Association 
pays the expenses even if one or more of the complainants 
is possessed of financial resources. In most of these cases 
the expenses of the suit are so great that it could not be 
prosecuted without outside aid. The fees paid the lawyers 
are modest in size and less than they would ordinarily earn 
for the time consumed.

The N. A. A. C. P. Legal Defense and Educational Fund, 
Inc., the plaintiff in the second suit, also takes a prominent 
part in support of litigation on behalf of Negro citizens.



36a

It is a membership corporation which was incorporated 
under the law of the State of New York in 1940. Like the 
Association, the Fund is registered with the Virginia Cor­
poration Commission as a foreign corporation doing busi­
ness in the state. It was formed, as its name implies, to 
assist Negroes to secure their constitutional rights by the 
prosecution of law suits of the sort that have just been 
described. The charter declares that its purposes are to 
render legal aid gratuitously to Negroes suffering “ legal 
injustice”  by reason of race or color who are unable on 
account of poverty to employ and engage legal aid on their 
own behalf. Other purposes are to secure educational 
facilities for Negroes who are denied the same by reason 
of their race and color and to conduct research and to com­
pile and publish information on this subject and generally 
on the status of the Negro in American life. The charter 
forbids the corporation to attempt to influence legislation 
by propaganda or otherwise and requires it to operate 
without pecuniary benefit to its members. The charter 
was approved by a New York court after service upon and 
without objection from the local bar association so that it 
obtained the right under the law of New York to operate 
as a legal aid society.

The Fund is governed by a Board of Directors which, 
under its charter, consists of not less than five and not 
more than fifty members. Its work is directed by the usual 
executive officers. It operates from an office in New York 
City and has no subordinate units. It employs a full-time 
staff of six resident attorneys and three research attorneys 
stationed in New York City, and it keeps four lawyers on 
annual retainers in Richmond, Dallas, Los Angeles and 
Washington. It also engages local attorneys for investiga­
tion and research in particular cases. It has on call one 
hundred lawyers throughout the country and a large num­
ber of social scientists who operate on a voluntary basis 
and work without pay or upon the payment of expenses 
only. By virtue of its efforts to secure equal rights and



37a

opportunities for colored citizens in the United States, the 
Fund has become regarded as an instrument through which 
colored citizens of the United States may act in their efforts 
to combat unconstitutional restrictions based upon race 
and color.

In order to give information as to the nature of the 
work of the Fund, members of the legal staff engage in 
public speaking and lectures in colleges and universities 
throughout the country on a variety of subjects connected 
with the legal rights of colored citizens and the race prob­
lem in general. But in conformity with the charter of the 
Fund, the officers and employees of the corporation do not 
attempt to influence legislation, by propaganda or other­
wise.

It is apparent that so far as litigation is concerned the 
purposes of the Association and of the Fund are identical, 
and they in fact cooperate in this activity. They are, 
however, separate corporate bodies with separate offices. 
At one time some of the executive officers were in the 
employ of both corporations but at the present no person 
serves as an officer or employee, although many persons 
are members of both bodies. The Fund was formed as 
a separate organization because it was thought that it 
should have no part in attempting to influence legislation 
and the complete separation has been promoted by rulings 
of the Treasury Department, which disallow tax deduc­
tions for contributions to organizations engaged in political 
activity. Deductions for contributions to the Fund are 
allowed.

The revenues of the Fund are derived solely from con­
tributions received in response to letters sent out four 
times a year throughout the country by the Committee of 
One Hundred and, to some extent, from solicitations at 
small luncheons or dinners. There are no membership 
dues. The Committee of One Hundred was organized in 
1941 by Dr. Neilsen, former president of Smith College, 
and consists predominantly of educators and lawyers who



38a

have joined together for the purpose of raising the money 
necessary to keep the organization going. Most of the 
money comes in the form of $5.00 and $10.00 contributions. 
Substantial sums are received from charitable founda­
tions, of which the largest was $15,000 and the aggregate 
was $50,000 in 1956. For the four or five years prior to 
1957 the income showed a steady increase. The income 
for 1956 wras $351,283.32. For the first eight months of 
1955, 1956 and 1957 the income was $152,000.00, $246,000.00 
and $180,000.00, respectively. The receipts from Virginia 
were $1,469.50 in 1954; $6,256.19 in 1955, a portion of which 
was a refund from prior litigation; $1,859.20 in 1956, and 
$424.00 for the first eight months in 1957.

The total disbursements of the Fund for the year 1956 
were $268,279.03. The total expenses for Virginia during 
the past four years consisted principally of the sum of 
$6,000.00, which was the annual retainer of the regional 
counsel.

The Fund supplements the work of the legal staff of the 
Virginia State Conference by contributing the services of 
the regional counsel and, more particularly, by furnishing 
results of the research of scientists, lawyers and law pro­
fessors in various parts of the country. The Fund also 
contributes the very large expenditures which are needed 
for the prosecution of important cases that go from the 
federal courts in Virginia and other states to the Supreme 
Court of the United States in which the fundamental rules 
governing racial problems are laid down. In this class 
of case the expenses amount to a sum between $50,000 and 
$100,000, and in the celebrated case of Brown v. Board of 
Education, the expenses amounted to a sum in excess of 
$200,000. The expenses of cases tried in the lower courts, 
including an appeal to the Court of Appeals for the Circuit, 
amount to approximately $5,000.00.

The Fund has made only a superficial investigation 
into the financial competency of complainants to whom it 
has rendered aid in Virginia. For the most part the cases 
have been class actions brought for the benefit of all the



39a

colored citizens in a community with children in the local 
public schools and the regional counsel of the Fund has 
entered the cases at the request of members of the legal 
staff of the State Conference. It has been obvious in such 
instances that the burden of the litigation was too great 
for the individual litigants to bear, and the lawyers for 
the Fund have not regarded their participation as a vio­
lation of the charter provision authorizing the Fund to 
aid indigent litigants even if it was shown that some of 
the complainants in a case had legal title to homes of sub­
stantial value.2

Statutes in Suit

The five statutes against which the pending suits are 
directed, that is, Chapters 31, 32, 33, 35 and 36 of the Acts 
of the General Assembly of Virginia, passed at its Extra 
Session in 1956, were enacted for the express purpose of 
impeding the integration of the races in the public schools 
of the state which the plaintiff corporations are seeking 
to promote. The cardinal provisions of these statutes are 
set forth generally in the following summary.

Chapters 31 and 32 are registration statutes. They 
require the registration with the State Corporation Com­
mission of Virginia of any person or corporation who 
engages in the solicitation of funds to be used in the prose­
cution of suits in which it has no pecuniary right or lia­
bility, or in suits on behalf of any race or color, or who 
engages as one of its principal activities in promoting or 
opposing the passage of legislation by the General As­
sembly on behalf of any race or color, or in the advocacy 
of racial integration or segregation, or whose activities

2 Testimony as to the activities of the Association and of the Fund 
was given in large part by Roy Wilkins, executive secretary of the 
Association; Thurgood Marshall, director counsel of the Fund; 
W . Lester Banks, executive secretary of the Virginia State Con­
ference; Oliver W . Hill, chairman of the legal staff of the Virginia 
State Conference; Spotswood W . Robinson III, southeast regional 
counsel for the Fund.



tend to cause racial conflicts or violence. Penalties for 
failure to register in violation of the statutes are provided.

Chapters 33, 35 and 36 relate to the procedure for 
suspension and revocation of licenses of attorneys at law, 
to the crime of barratry and to the inducement and instiga­
tion of legal proceedings. It is made unlawful for any 
person or corporation: to act as an agent for another who 
employs a lawyer in a proceeding in which the principal 
is not a party and has no pecuniary right or liability; or 
to accept employment as an attorney from any person 
known to have violated this provision; or to instigate the 
institution of a law suit by paying all or part of the 
expenses of litigation, unless the instigator has a personal 
interest or pecuniary right or liability therein; or to give 
or receive anything of value as an inducement for the 
prosecution of a suit, in any state or federal court or 
before any board or administrative agency within the 
state, against the Commonwealth, its departments, subdivi­
sions, officers and employees; or to advise, counsel, or 
otherwise instigate the prosecution of such a suit against 
the Commonwealth, etc., unless the instigator has some 
interest in the subject or is related to or in a position of 
trust toward the plaintiff. Penalties for the violation of 
these statutes are provided.

The legislative history of these statutes to which we 
now refer conclusively shows that they were passed to 
nullify as far as possible the effect of the decision of the 
Supreme Court in Brown v. Board of Education, 347 U. S. 
483 and 349 U. S. 294.

L egislative H istory or Statutes in Suit

On May 17, 1954, the Supreme Court in Brown v. Board 
of Education, 347 U. S. 483, after argument and reargu­
ment, denounced the segregation of the races in public 
education as a violation of the equal protection clause of 
the Fourteenth Amendment, and requested the parties 
as well as the attorneys general of the affected states to



41a

file briefs and present further argument to assist the court 
in formulating its decrees.3

On May 31, 1955, the Supreme Court, after further 
argument, reaffirmed its position, reversed the judgments 
below and remanded the cases to the lower courts to take 
such proceedings as should be necessary and proper to 
admit the parties to the public school on a racially non- 
discriminatory basis with all deliberate speed.

Amongst the cases in the group considered by the 
Supreme Court was Davis v. County School Board of 
Prince Edward County, Virginia, which was instituted on 
May 23, 1951, on behalf of colored children of high school 
age in that county. The case had been tried by a three- 
judge district court after the Commonwealth of Virginia 
had been permitted to intervene. The court upheld the 
validity of the constitutional and statutory enactments 
of the state which required the segregation of the races 
in the state schools, but found that the buildings, curricula 
and transportation furnished the colored children were 
inferior to those furnished the white children and ordered 
the defendants to remedy the defects with diligence and 
dispatch. 103 F. Supp. 337. As we have seen, this decision 
was reversed by the Supreme Court on the constitutional 
point and the duty to eliminate segregation was directly 
presented to the state authorities.4 Their reaction is de­
picted in the following recital.

3 On the same day, in Bolling v. Sharpe, 347 U. S. 497, the 
Court held that segregation in the public schools in the District of 
Columbia is a denial of the due process clause of the Fifth Amend­
ment.

4 On remand, after the filing of numerous motions and the render­
ing of arguments thereon, the Court entered a decree enjoining racial 
discrimination in school admission but refused to set a time limit 
within which the Board should begin compliance, observing the likeli­
hood of the schools being closed under state law. 149 F. Supp. 431. 
This refusal was reversed on appeal, Allen v. County School Board 
of Prince Edward County, Va., 4 Cir., —  F. 2d — .



42a

On August 30, 1954, the Governor of Virginia appointed 
the Gray Commission on Public Education, composed of 
thirty-two members of the General Assembly, and directed 
it to study the effect of the segregation decision and make 
such recommendations as might be deemed proper. The 
Commission submitted its final report to the Governor on 
November 11, 1955. Referring to prior decisions of the 
Supreme Court and to the non-judicial authority cited by 
it in support of the segregation decision, the Commission 
characterized the latter in the following terms:

“ With this decision, based upon such authority, 
we are now faced. It is a matter of the gravest 
import, not only to those communities where prob­
lems of race are serious, but to every community 
in the land, because this decision transcends the 
matter of segregation in education. It means that 
irrespective of precedent, long acquiesced in, the 
Court can and will change its interpretation of the 
Constitution at its pleasure, disregarding the orderly 
processes for its amendment set forth in Article V 
thereof. It means that the most fundamental of 
the rights of the states and of their citizens exist 
by the Court’s sufferance and that the law of the 
land is whatever the Court may determine it to be 
by the process of judicial legislation.’ ’

The Commission’s general conclusion was that “ sepa­
rate facilities in our public schools are in the best interest 
of both races, educationally and otherwise, and that com­
pulsory integration should be resisted by all proper means 
in our power” . To this end the Commission recommended 
that a special session of the General Assembly he called to 
authorize the holding of a constitutional convention in 
order to amend § 141 of the Constitution of Virginia which 
shortly before had been held by the Supreme Court of 
Appeals of Virginia in Almond v. Day, 197 Va. 419, to 
prohibit the payment of tuition and other expenses of 
students who may not desire to attend public schools. The 
Commission also recommended that legislation he passed



43a

conferring broad discretion upon the school authorities to 
assign pupils in the public schools and to provide for the 
expenditure of State funds in the payment of tuition grants 
so as to prevent enforced integration. In response to 
this recommendation, the General Assembly, on December 
3, 1955, meeting in Extra Session, enacted a bill submitting 
to the voters of the state the question whether such a 
convention should be held, and on January 9, 1956, the 
holding of the convention was approved by the voters.

On February 1, 1956, the General Assembly in its regu­
lar session adopted an “ interposition resolution”  by votes 
of 36-to-2 in the Senate and 90-to-5 in the House of Dele­
gates. In this resolution the following declarations were 
included:

“ That by its decision of May 17, 1954, in the 
school cases, the Supreme Court of the United States 
placed upon the Constitution an interpretation, hav­
ing the effect of an amendment thereto, which inter­
pretation Virginia emphatically disapproves; * * *

“ That with the Supreme Court’s decision afore­
said and this resolution by the General Assembly 
of Virginia, a question of contested power has 
arisen: The court asserts, for its part, that the 
States did, in fact, in 1868, prohibit unto themselves, 
by means of the Fourteenth Amendment, the power 
to maintain racially separate public schools, which 
power certain of the States have exercised daily 
for more than 80 years; the State of Virginia, for 
her part, asserts that she has never surrendered 
such power;

“ That this declaration upon the part of the Su­
preme Court of the United States constitutes a 
deliberate, palpable, and dangerous attempt of the 
court itself to usurp the amendatory power that lies 
solely with not fewer than three-fourths of the 
States; * * *

“ (That Virginia) * * * anxiously concerned at 
this massive expansion of central authority, * * * 
is in duty bound to interpose against these most 
serious consequences, and earnestly to challenge the 
usurped authority that would inflict them upon her 
citizens. * * *



44a

“ And be it finally resolved, that until the ques­
tion here asserted by the State of Virginia be settled 
by clear Constitutional amendment, we pledge our 
firm intention to take all appropriate measures 
honorably, legally and constitutionally available to 
us, to resist this illegal encroachment upon our 
sovereign powers, and to urge upon our sister States, 
whose authority over their own most cherished 
powers may next be imperiled, their prompt and 
deliberate efforts to check this and further en­
croachment by the Supreme Court, through judicial 
legislation, upon the reserved powers of the States. ’ ’

The constitutional convention authorized by the voters 
was held on March 7, 1956, and amended § 141 of the con­
stitution of the state in accordance with the recommenda­
tion of the Gray Commission.

On August 27, 1956, the General Assembly was con­
vened in Extra Session in response to the call of the 
Governor of the State. He made an opening address to 
the assembled lawmakers,5 in the course of which he said:

“ The people of Virginia and their elected repre­
sentatives, are confronted with the gravest _ prob­
lems since 1865. Beginning with the decision of 
the Supreme Court of the United States on May 17, 
1954, there has been a series of events striking at 
the very fundamentals of constitutional government 
and creating situations of the utmost concern to all 
our people in this Commonwealth, and throughout 
the South.

“ Because of the events I have just mentioned, I 
come before you today for the purpose of submitting 
recommendations to continue our system of segre­
gated public schools * * * ”

‘ ‘ The principal bill which I submit to you at this 
time defines State policy and governs public school 
appropriations accordingly. The declaration reads, 
in part, as follows:

5 Sec. 73 of the Virginia Constitution provides: “ The Governor 
shall . . . recommend to (the General Assembly’s) consideration such 
measures as he may deem expedient, and convene the General 
Assembly . . . when, in his opinion, the interest of the State may 
require.”



45a

‘ The General Assembly declares, finds and 
establishes as a fact that the mixing of white 
and colored children in any elementary or second­
ary public school within any county, city or town 
of the Commonwealth constitutes a clear and 
present danger * * * and that no efficient system 
of elementary and secondary public schools can 
be maintained in any county, city or town in 
which white and colored are taught in any such 
school located therein.’
“ The bill then defines efficient systems of ele­

mentary and secondary public schools as those 
systems within a county, city or town in which 
there is no student body, in the respective cate­
gories, in which white and colored children are 
taught. Following these definitions is this further 
declaration:

“ The General Assembly for the purpose of 
protecting the health and welfare of the people 
and in order to preserve and maintain an efficient 
system of public elementary and secondary 
schools hereby declares and establishes it to be 
the policy of this Commonwealth that no public 
elementary or secondary schools in which white 
and colored children are mixed and taught shall 
be entitled to or shall receive any funds from 
the State Treasury for their operation, and, to 
that end, forbids and prohibits the expenditure 
of any part of the funds appropriated * * * for 
the establishment and maintenance of any sys­
tem of public elementary or secondary schools, 
which is not efficient.’
‘ ‘ This policy is in harmony with § 129 of the 

State Constitution, which provides that ‘ The Gen­
eral Assembly shall establish and maintain an effi­
cient system of public free schools throughout the 
state.’ Manifestly, integration of the races would 
make impossible the operation of an efficient sys­
tem. By this proposed legislation, the General 
Assembly, properly exercising its authority under 
the Constitution, will clearly define what constitute 
an efficient system for which State appropriations 
are made.”



46a

The purpose for which the Extra Session was called 
was emphasized in the following exhortation with which 
the Governor concluded his address:

“ The proposed legislation recognizes the fact 
that this is the time for a decisive and clear answer 
to these questions:

“ (1) Do we accept the attempt of the Supreme 
Court of the United States, without constitutional 
or any other legal basis, to usurp the rights of the 
States and dictate the administration of their in­
ternal affairs? (2) Do we accept integration? (3) 
Do we want to permit the destruction of our schools 
by permitting ‘ a little integration’ and witness its 
subsequent sure and certain insidious spread 
throughout the Commonwealth? My answer is a 
positive ‘ No’. On the other hand, shall we take all 
appropriate measures honorably, legally and consti­
tutionally available to us, to resist this illegal en­
croachment upon our sovereign powers? My answer 
is a definite ‘ Yes’ and I believe it is to be the answer 
of the vast majority of the white people of Virginia, 
as well as the answer of a large, if unknown, number 
of Negro citizens.”

The Legislature responded at once to the Governor’s 
appeal. The principal bill to which he referred in his 
address became Chapter 71 of the Acts passed at the Extra 
Session. It appropriated funds for the maintenance of 
the elementary and secondary schools of the state for the 
ensuing biennium and included the declarations above set 
out, whereby the use of the funds for integrated schools 
are prohibited. An accompanying Act, Chapter 70, known 
as the Pupil Placement Act, requires each pupil to attend 
his present segregated school unless a transfer is author­
ized by a Pupil Placement Board appointed by the Gov­
ernor; and the Board is required to consider the effect of 
its decisions upon the efficiency of the schools which, ac­
cording to the declarations of the Legislature, can be main­
tained only by preserving segregation of the races. A 
review of the decisions of the Board is provided through a 
cumbersome and costly procedure. Another companion



statute, Chapter 68, provides that if children of both races 
are enrolled in the same school by any school authorities 
acting voluntarily or under the compulsion of an order of 
court, the school shall be closed and removed from the 
public school system and the control of the school shall 
be vested in the state and not reopened until the Governor 
finds that it can be done without enforced integration.

The Pupil Placement Act was considered at length and 
held unconstitutional by this court in Adkins v. School 
Board of the City of Newport News, 148 F. Supp. 430, 
wherein the terms of the Act are set out in full and the 
legislative history is reviewed. The opinion of the court 
pointed out that the administrative remedy afforded to an 
aggrieved person by the Act would consume at least 103 
days between the filing of the protest and the final decision 
which was lodged in the hands of the Governor. On appeal 
the judgment of the District Court was affirmed, 246 F. 
2d 325, cert. den. — U. S. — .

E ffect of Passage of Statutes in Suit

It was in this setting 6 that the Acts now before the court 
were passed as parts of the general plan of massive re­

0 W hile it is well settled that a court may not inquire into the 
legislative motive ( Tenney v. Brandhove, 341 U. S. 367, 377), it is 
equally well settled that a Court may inquire into the legislative 
purpose. (See Baskin v. Brown, 4 Cir., 174 F. 2d 391, 392-393, and 
Davis v. Schne.ll, 81 F. Supp. 872, 878-880, aff’d 336 U. S. 933, in 
which state efforts to disenfranchise Negroes were struck down as 
violative of the Fifteenth Amendment.) Legislative motive— good 
or bad— is irrelevant to the process of judicial review; but legislative 
purpose is of primary importance in determining the propriety of leg­
islative action, since the purpose itself must be within the legislative 
competence, and the methods used must be reasonably likely to accom­
plish that purpose. Because of this necessity, a study of legislative 
purpose is of the highest relevance when a claim of unconstitutionality 
is put forward. Usually a court looks into the legislative history to 
clear up some statutory ambiguity, as in Davis v. Schnell, 81 F. 
Supp. at 878; but such ambiguity is not the sine qua non for a judicial 
inquiry into legislative history. See the decision in Lane v. Wilson, 
307 U. S. 268, in which the Supreme Court showed that the state 
statute before the court was merely an attempt to avoid a previous 
decision in which the “grandfather” clause of an earlier statute had 
been held void.



48a

sistance to the integration of schools of the state under 
the Supreme Court’s decrees. The agitation involved in 
the widespread discussion of the subject and the passage of 
the statutes by the Legislature have had a marked effect 
upon the public mind which has been reflected in hostility 
to the activities of the plaintiffs in these cases. This has 
been shown not only by the falling off of revenues, indi­
cated above, but also by manifestations of ill will toward 
white and colored citizens who are known to be sympathetic 
with the aspirations of the colored people for equal treat­
ment, particularly in the field of public education. A  num­
ber of white citizens who attempted to give aid to the 
movement by speaking out on behalf of the colored people, 
or by taking membership in the Association, or joining 
the complainants in school suits, have been subjected to 
various kinds of annoyance. When their names appeared 
in the public press in connection with these activities 
they were besieged day and night by telephone calls which 
were obscene, threatening, abusive, or merely silent inter­
ruptions to the peace and comfort of their homes. Letters 
and telegrams of like nature were also received. Some 
of these persons found themselves cut by their friends and 
made unwelcome where they had formerly been received 
with kindness and respect. Two crosses were burned near 
the homes of two of them; an effigy was hung in the yard 
of a white plaintiff in a school case, and a hearse was 
sent to the home of the colored president of the Norfolk 
branch of the Association during his absence “ to pick 
up his body.”  The last mentioned person was also chair­
man of the local branch of a labor union and a man of 
prominence in his community. He had been active and 
successful in directing membership campaigns for the 
Association in prior years but in 1957 he found that the 
solicitors were unwilling to continue their work. Colored 
lawyers on the State Conference legal staff were assailed 
with fear that enforcement of the statutes now before this 
court would result in loss of their licenses to practice



49a

should they continue their activities on the Association’s 
behalf. Numerous newspaper articles offered in evidence 
show that the proposal to integrate the schools was a 
prime subject of public interest and discussion throughout 
the state. They are received over objections by the defend­
ants only as evidence of this fact and not to prove the 
accuracy of the statements therein contained. In view of 
all the evidence, we find that the activities of the State 
authorities in support of the general plan to obstruct the 
integration of the races in schools in Virginia, of which 
plan the statutes in suit form an important part, brought 
about a loss of members and a reduction of the revenues 
of the Association and made it more difficult to accomplish 
its legitimate aims.

The defendants on their own behalf produced as wit­
nesses six of the plaintiffs in the Prince Edward County 
school case. All of them had been visited by representa­
tives of the Boatwright Committee of the Legislature, 
which had been created by Chapter 34 of the Acts passed 
at the Extra Session, and had been authorized to make a 
thorough investigation into the activities of corporations 
or associations which seek to influence, encourage or pro­
mote litigation relating to racial activities in the State. 
These witnesses testified either that they did not know 
that they were parties to the Prince Edward suit or that 
they merely wanted better schools for their children and 
did not want integrated schools. They also testified that 
they suffered no mistreatment by reason of their names 
being used as plaintiffs in the suit. The evidence, however, 
shows that the first step leading to the litigation in Prince 
Edward County was a strike of the children in the colored 
high school who refused to attend classes for a period of 
two weeks as a protest against the undesirable conditions 
in the school. After the strike there were meetings of 
the parents in the school building and in the nearby 
Baptist Church which were addressed by lawyers of the 
legal staff of the Virginia State Conference of the Associa­



50a

tion, who were in attendance at the request of the parents 
of the children, as well as by other persons. The speakers 
expressed the opinion that in order to secure fair treat­
ment for the colored pupils it would be necessary to in­
stitute a suit for the establishment of an integrated school. 
It was further shown that each of the six witnesses had 
signed a paper authorizing Hill, Martin and Robinson, 
attorneys, to act for and on behalf of them and their 
children to secure such educational opportunities as they 
might be entitled to under the Constitution and laws of 
the United States and to represent them in all suits of 
whatever kind pertaining thereto. The record in the Prince 
Edward case shows that 186 persons were joined as parties 
plaintiff.

The Attorney General of Alabama testified as to racial 
disturbances and disorders in 1955 and 1956 arising in his 
State in connection with the attempt to enroll colored 
students in white schools and involving acts of violence and 
personal injury to colored persons. He attributed these 
activities in large part to white men associated in a 
splinter organization of the Ku Klux Klan and expressed 
the opinion that the registration of members of the or­
ganization under an act like Chapter 32 in this case would 
aid in the identification and successful prosecution of the 
offenders. Similarly he thought it would be helpful to 
require the registration of members of a Negro organiza­
tion in Tuskegee, which succeeded in some measure to 
the work of the N. A. A. C. P. after it had been enjoined 
from operating in Alabama and had engaged in boycotting 
white merchants in the community and for this purpose 
had engaged in threats and acts of intimidation. The 
Attorney General conceded that he was hostile to the 
N. A. A. C. P. and had filed suit against it in his State 
demanding a list of its members, but that he had not filed 
such suit against the Ku Klux Klan.

The Sheriffs of four southside Virginia counties in 
which the negro population ranges from 45 per-cent to 54



51a

per-cent and in one instance to 77 per-cent of the total, tes­
tified that the relation of the races in their jurisdictions was 
good but that in their opinion integration in the public 
schools would result in disturbances and, perhaps, in blood­
shed; and that a list of persons active in racial matters 
would aid them in preserving the peace and in selecting 
deputies to enforce the law. We find that the opposition to 
integration in the public schools is especially strong in this 
section of Virginia. The Superintendent of the Virginia 
State Police agreed with the opinion that lists of persons 
active in racial matters would helji law enforcement even 
though the lists might contain thirteen or fourteen thousand 
names.

A representative of the law department of the Associa­
tion of American Railroads testified for the defendants 
that through investigations he had become familiar with 
the solicitation of personal injury claims by attorneys, 
and generally with the offenses of barratry and running 
and capping; and that such activities occur in Virginia 
and that the information required to be filed under Chapter 
31 of the Acts of the Extra Session would be helpful in 
investigating such activities.

Mr. C. Harrison Mann, Jr., a lawyer and a delegate 
to the General Assembly, testified on behalf of the defend­
ants that he was the chief patron of the Acts of Legislature 
now in suit and that he was moved by two purposes in 
connection with the legislation. He was alarmed at the 
activities of a white leader who is violently fighting inte­
gration in the eastern part of the United States and was 
operating in Washington shortly before the Extra Ses­
sion convened. It was the opinion of the witness that 
these activities would lead to racial tension and possibly 
violence and that it was highly desirable that the identities 
of the responsible people be made known by registration. 
With respect to the passage of the Acts relating to the 
practice of law in Virginia, the delegate was influenced 
by reports in the press that certain persons were joined



52a

as plaintiffs in the Prince Edward suit without knowledge 
that integration of the races in the schools was at issue 
and that in other parts of the country there were reports 
that the Association was soliciting the institution of suits 
by plaintiffs and practicing law, which he considered to 
be a breach of legal ethics and bad public policy. He also 
gave evidence that he was subject to abuse from various 
sources by reason of his activities.

Defendants’ M otion to D ismiss 

Civil Rights of Corporations

After the institution of the pending suits the defendants 
filed motions to dismiss in each case on the ground that 
the complaints did not state a controversy over which the 
court had jurisdiction. The motions were dismissed after 
argument and the defendants were required to answer with 
leave to renew the contention after the hearing on the 
evidence. They now dispute the jurisdiction of the Court, 
first, on the ground that a corporation is not a person 
entitled to bring suit for deprivation of rights, privileges 
or immunities granted by the Constitution or laws of 
the United States under 42 U. S. C. 1983, over which juris­
diction is conferred upon the district courts by 28 U. S. C. 
§ 1343(3). It is pointed out that these sections are derived 
from the Civil Eights Act of 1871, which was enacted to 
give effect to the provisions of the Fourteenth Amendment 
and thereby to prevent the deprivation of the rights of 
natural persons under the color of any state law. Reliance 
is placed chiefly on the concurring opinion of Justice Stone 
in Hague v. C. 1. 0., 307 U. S. 496, where suit was brought 
by individual citizens and a membership corporation who 
claimed that under an ordinance of Jersey City they were, 
deprived of the privilege of free speech and free assembly 
secured to them as citizens of the United States by the 
Fourteenth Amendment. The ordinance was held uncon­
stitutional as an undue restriction of these rights and



relief was granted to the individual plaintiffs but denied 
to a corporate plaintiff for the reason expressed in the 
opinion of Justice Roberts (page 514) that “ natural per­
sons and they alone are entitled to the privileges and im­
munities which Section 1 of the Fourteenth Amendment 
secures for citizens of the United States” . This holding 
that corporations are not “ citizens”  within this clause of 
the Fourteenth Amendment is not disputed; but Justice 
Stone, who concurred in the judgment but differed with 
the reasons expressed by his colleagues, wrote a separate 
opinion in which he went further and made the following 
statement (page 527):

“ Since freedom of speech and freedom of assem­
bly are rights secured to persons by the due process 
clause, all of the individual respondents are plainly 
authorized by § 1 of the Civil Rights Act of 1871 to 
maintain the present suit in equity to restrain in­
fringement of their rights. As to the American Civil 
Liberties Union, which is a corporation, it cannot be 
said to be deprived of the civil rights of freedom of 
speech and of assembly, for the liberty guaranteed 
by the due process clause is the liberty of natural, not 
artificial, persons. Northwestern Life Ins. Co. v. 
Riggs, 203 U. S. 243, 255; Western Turf Assn. v. 
Greenberg, 204 U. S. 359, 363.”

This pronouncement supports the defendants’ position 
but it cannot be said to be a controlling authority since it 
did not represent the views of the majority of the Court 
but was concurred in only by Justice Reed (see City of 
Manchester v. Leiby, 1 Cir., 177 F. 2d 661, 663, 664).

It is of more importance to note that the opinion of Jus­
tice Stone did not discuss the prior decision of the Court 
in Grosjean v. American Press Co., 297 U. S. 233, where a 
license tax on advertisement was held invalid at the suit of a 
newspaper corporation. The Court held (page 244) that 
freedom of speech and of the press are fundamental rights 
safeguarded by the due process of law clause of the Four­



teenth Amendment against abridgement by state legisla­
tion, and although a corporation is not a citizen within the 
meaning of the privileges and immunities clause, it is a 
person within the meaning of the equal protection and due 
process clause of that amendment. In other words, the cor­
poration was accorded rights to which it would not have 
been entitled if the rule announced by Justice Stone had 
been applied.

Subsequent cases have extended this broad interpreta­
tion of the word “ person”  in the Civil Rights Act and 
have held that a corporation is a person within that Act en­
titled to challenge the deprivation of rights under color of 
a state statute to which a money valuation could not be ap­
plied. Thus in McCoy v. Providence Journal Co., 1 Cir., 
190 F. 2d 760, it was held that a newspaper corporation, as 
well as individual persons employed by the corporation, 
were entitled to bring suit under 28 U. S. C. 1343(3) to 
secure the right to inspect public records which had been 
denied them by municipal authority; and in Watchtower 
Bible and Tract Co. v. Los Angeles County, 9 Cir., 181 F. 
2d 739, it was held that the District Court had jurisdiction 
to entertain a complaint of a corporation engaged in the 
circulation of religious literature that it had been subjected 
to an unconstitutional tax. Both of these decisions relied 
upon the pronouncement of the Supreme Court in Grosjean 
v. American Press Co., supra, and we are in accord with 
their conclusions. It is true that the Fourteenth Amend­
ment as well as the Civil Rights statutes were enacted for 
the purpose of securing colored persons against unjusti­
fiable discrimination, but in the development of the law the 
protection afforded by the Amendment has not been con­
fined to natural persons, and there is no reasonable ground 
at this time to deny the protection afforded by the Civil 
Rights Act to corporations which are engaged through their 
agents in public speech and in the circulation of literature 
designed to protect the rights of natural persons in whose 
interest the enactments were originally passed. In these



oo a

days, when corporate organization is wellnigli necessary for 
the conduct of large enterprises, the propriety of includ­
ing them within the protection of the Act would seem to be 
obvious; and since the word “ person”  in the Fourteenth 
Amendment has been broadly construed to include corpo­
rations in the protection of their property rights,7 there is 
no good reason why the same liberality of interpretation 
should not be used when the corporation is formed not for 
purposes of profit but for the protection of the liberties of 
the individuals.

J l!RISDICT10NAL A mOUSI

Secondly, the defendants contest the right of the plain­
tiffs to obtain relief in this court under 28 U. S. C. §§ 1331 
and 1332 wdiich confer upon the district courts jurisdiction 
over civil actions arising under the Constitution and laws 
of the United States and civil actions between citizens of 
different states, where the matter in controversy exceeds 
the sum of $3,000.00 exclusive of interest and costs. The 
contention is that the plaintiffs did not allege in their com­
plaints or prove at the hearing sufficient facts to establish 
the jurisdictional amount. In substance the evidence shows 
that the membership of the Association in Virginia dropped 
from 19,436 for the first eight months of 1956, prior to the 
passage of the statutes in suit, to 13,595 in the first eight 
months of 1957, after the enactments. In the same period 
the income of the Association in Virginia showed a decline 
from $43,612.75 to $37,470.00, and its national income a de­
cline from $598,612.84 for the year 1956 to $425,608.13 for

7 See Pennekamp v. Florida, 328 U. S. 331 and Burstyn, Inc. v. 
Wilson, 343 U. S. 495, in each of which the Court upheld the right 
of a business corporation to freedom of speech and freedom of the 
press. It seems illogical and meaningless to deny the same rights to 
a nonprofit corporation organized to protect the freedoms of natural 
persons since the latter may always be properly joined as parties 
plaintiff in suits brought by the corporation on their behalf. See 66 
Yale Law Journal 545, 548.



56a

the first eight months of 1957. The Fund also experienced 
losses in these periods. Its income rose steadily until 1956, 
when it became $351,283.32 although its operations in Texas 
were restrained in September by an order of court. Its 
income dropped in the subsequent period, as is shown by 
contrasting its income of $180,000.00 for the first eight 
months of 1957 with its income of $246,000.00 for the same 
period of 1956. In Virginia, its income dropped from 
$1,859.20 for 1956 to $424.00 during the first eight months 
of 1957.

When suit is brought for an injunction to restrain the 
enforcement of a regulatory statute alleged to be invalid 
because of its continuing harmful effect upon the plaintiff 
the jurisdiction of the court is to be tested by the value of 
the object to be gained. Failure to prove that a sufficient 
amount of damage has already been sustained will not de­
feat the remedy if the injury is recurrent or continuous, 
since the advantage to be gained by the complainant from 
x’emoval of the burden imposed by the statute is the mat­
ter in controversy. Glenwood Light & Water Co. v. Mutual 
L. II. & P. Co., 239 U. S. 121, 125, 126; Gibbs v. Buck, 307 
U. S. 66, 74; American R. Co. v. South Porto Rico Sugar 
Co,. 1 Cir., 293 Fed. 670, 673; cf. McNutt v. General Motors 
Acce.pt. Corp., 298 U. S. 178, 181; KVOS  v. Associated 
Press, 299 U. S. 269, 277. Hence the inquiry in the pending 
suits is not limited to the immediate effect upon the plain­
tiffs to be expected from the enforcement of the Virginia 
statutes but extends to the loss likely to flow from then- 
enforcement throughout the years. Nor is the inquiry lim­
ited to the impact of the statutes upon the plaintiffs’ busi­
ness in Virginia, because the registration statutes, Chap­
ters 31 and 32, are not confined to business done in Vir­
ginia, but require both plaintiffs to disclose the details of 
their business throughout the country including a list of all 
members, all contributions, and all expenditures; and Chap­
ters 33, 35 and 36, relating to the practice of law, forbid 
the plaintiffs to pay the costs and expenses of class suits to



o/a

which most of the contributions received by the Fund in 
its recurrent national campaigns are devoted. Taking 
these facts into consideration, it is manifest that the exist­
ence of the required jurisdictional amount is established in 
each of the cases before the court.

Certainly it cannot be said that the claim of loss in ex­
cess of the jurisdictional amount was made by the plaintiffs 
in bad faith for the purpose of conferring jurisdiction, or 
that it has been shown to a legal certainty that less than 
the amount is involved in the pending suits; and hence the 
plaintiffs have met the test laid down in the following ex­
cerpt from St. Paul Indemnity Co. v. Cab Co., 303 U. S. 
283, 288-290:

“ The intent of Congress drastically to restrict 
federal jurisdiction in controversies between citizens 
of different states has always been rigorously en­
forced by the courts. The rule governing dismissal 
for want of jurisdiction in cases brought in the fed­
eral court is that, unless the law gives a different 
rule, the sum claimed by the plaintiff controls if the 
claim is apparently made in good faith. It must ap­
pear to a legal certainty that the claim is really for 
less than the jurisdictional amount to justify dismis­
sal. The inability of plaintiff to recover an amount 
adequate to give the court jurisdiction does not show 
his bad faith or oust the jurisdiction. Nor does the 
fact that the complaint discloses the existence of a 
valid defense to the claim. But if, from the face of 
the pleadings, it is apparent, to a legal certainty, 
that the plaintiff cannot recover the amount claimed, 
or if, from the proofs, the court is satisfied to a like 
certainty that the plaintiff never was entitled to 
recover that amount, and that his claim was there­
fore colorable for the purpose of conferring juris- 
tion, the suit will be dismissed. Events occurring 
subsequent to the institution of suit which reduce 
the amount recoverable below the statutory limit 
do not oust jurisdiction.”



58a

R estraint of Criminal Prosecution

The defendants also invoke the familiar rule that ordi­
narily a court of equity will not restrain a criminal prose­
cution based on a state statute, even if the constitutionality 
of the statute is involved, since this question can be raised 
and settled in the criminal case with review by the higher 
courts as well as in a suit for injunction, Douglas v. 
Jeannette, 319 U. S. 157, 163, 164; and this is especially 
true where the only threatened action is a single prosecu­
tion of an alleged violation of state law. However, it is 
also well recognized that a criminal prosecution may he 
enjoined under exceptional circumstances where there is 
a clear showing of danger of immediate irreparable injury. 
Spiehnan Motor Co. v. Dodge, 259 U. S. 89, 95; Beal v. 
Missouri Pacific R. Corp., 312 U. S. 45, 49. It is obvious 
that the present case falls in the latter category. The 
penalties prescribed hjT the statutes are heavy and they 
are applicable not only to the corporation but to every 
person responsible for the management of its affairs, and 
under Chapter 32 of the statutes each day’s failure to 
register and file the required information constitutes a 
separate punishable offense. The deterrent effect of the 
statutes upon the acquisition of members, and upon the 
activities of the lawyers of the plaintiffs under the threat 
of disciplinary action has already been noted, and the 
danger of immediate and persistent efforts on the part of 
the state authorities to interfere with the activities of the 
plaintiffs has been made manifest by the repeated public 
statements. The facts of the cases abundantly justify the 
exercise of the equitable powers of the court. Ex parte 
Young, 209 IT. S. 123, 147; Truax v. Raich, 239 U. S. 33; 
Western Union Telegraph Co. v. Andrews, 216 U. S. 165; 
Sterling v. Constantin, 287 U. S. 378.



59a

P rior Constructiox of Statutes by State 
S upreme Court

Finally, the defendants urge that we should not exercise 
the power to restrain the enforcement of the state statutes 
but should withhold action until the statutes have been con­
strued by the Supreme Court of Appeals of Virginia. This 
contention is based on the policy defined in decisions of 
the Supreme Court of the United States that the federal 
courts should avoid passing on constitutional questions 
in situations where an authoritative interpretation of state 
law may avoid the constitutional issues. Hence if the 
interpretation of a state statute is doubtful or a question 
of law remains undecided, the federal court should hold 
its proceedings in abeyance for a reasonable time pending 
construction of the statute by the state courts or until 
efforts to obtain such an adjudication have been exhausted. 
See Spector Motor Co. v. McLaughlin, 323 U. S. 101; Gov­
ernment & Civic Employees Organ. Coni. v. Windsor, 347 
U. S. 901 and 353 U. S. 364; Shipman v. Dupre, 339 U. S. 
321.

These rulings, however, do not mean that the federal 
courts lose jurisdiction in cases where the state courts 
have not passed upon the statute under attack or that the 
federal court is powerless to take any action until a decision 
by the state court has been rendered. Such a conclusion 
could not be reached in the pending case since the federal 
statutes expressly confer jurisdiction upon the federal 
courts where civil rights have been violated (42 U. S. C. 
§1983), or where federal questions are involved (28 U. S. 0. 
§ 1331). Thus in Doud v. Hodge, 350 U. S. 485, where the 
constitutionality of a licensing and regulatory statute was 
involved and jurisdiction of the federal court was 
invoked under 28 U. S. C. § 1331, the Court said (page 487) :

“  * * * This Court has never held that a district 
court is without jurisdiction to entertain a prayer 
for an injunction restraining the enforcement of a



60a

state statute on grounds of alleged repugnancy to 
the Federal Constitution simply because the state 
courts had not yet rendered a clear or definitive 
decision as to the meaning or federal constitution­
ality of the statute.

“ We hold that the District Court has jurisdiction 
of this cause. It was error to dismiss the complaint 
for lack of jurisdiction. The judgment of the Dis­
trict Court is vacated and the case is remanded to it. 
We do not decide what procedures the District Court 
should follow on remand.”

See also A. F. of L. v. Watson, 327 U. S. 582, 599, where, 
in directing a district court to retain a suit involving the 
constitutionality of a state statute pending the determina­
tion of proceedings in the state courts, the Supreme Court 
said that the purpose of the suit in the federal court would 
not be defeated by this action, since the resources of equity 
are adequate to deal with the problem so as to avoid un­
necessary friction with state policies while cases go for­
ward in the state courts for an expeditious adjudication 
of state law questions.

The policy laid down by the Supreme Court does not 
require a stay of proceedings in the federal courts in cases 
of this sort if the state statutes at issue are free of doubt 
or ambiguity. See the opinion of Judge Parker in Bryan 
v. Austin, E. D. S. C., 148 F. Supp. 563, 567-568, where it 
A v a s  said:

“ I recognize, of course, that, in the application 
of the rule of comity, a federal court should stay 
action pending action by the courts of a state, where 
it is called upon to enjoin the enforcement of a state 
statute which has not been interpreted by the state 
courts, and where the statute is susceptible of an 
interpretation which would avoid constitutional in­
validity. As the federal courts are bound by the 
interpretation placed by the highest court of a state 
upon a statute of that state, they should not enjoin 
the enforcement of a statute as violative of the Con­



61a

stitution in advance of such an interpretation, if it 
is reasonably possible for the statute to be given 
an interpretation which will render it constitutional. 
* * * The role as to stay of proceedings pending in­
terpretation of a state statute by the courts of the 
state can have no application to a case, such as we 
have here, where the meaning of the statute is 
perfectly clear and where no interpretation which 
could possibly be placed upon it by the Supreme 
Court of the state could render it constitutional. ’ ’

We are not unmindful of the necessity of maintaining 
the delicate balance between state and federal courts under 
the concept of separate sovereigns. We agree that the con­
stitutionality of state statutes requiring special competence 
in the interpretation of local law should not be determined 
by federal courts in advance of a reasonable opportunity 
afforded the parties to seek an adjudication by the state 
court. With these basic principles we find no fault.

It must be remembered, however, that Congress has 
not seen fit to restrict the jurisdiction of the district courts 
by imposing as a condition precedent to action by the fed­
eral courts, the judicial pronouncement by the state court 
in cases where the constitutionality of a state statute is 
presented and injunctive relief is requested. Concurrent 
jurisdiction still exists until modified in the wisdom of the 
legislative branch of our government.

Neither are we given any clear formula to follow under 
the decisions of the Supreme Court. The more recent deci­
sions of the highest court suggest that statutory three- 
judge courts should be hestitant in exercising jurisdiction 
in the absence of state court action, or at least a reasonable 
opportunity to secure same. It is apparent to us that the 
Supreme Court has endeavored to grant cautious discre­
tion to district courts in determining whether jurisdiction 
should be exercised and the matter considered on its merits, 
as contrasted with the acceptance of jurisdiction as such. 
Should this court exercise such jurisdiction under the facts



62a

and circumstances of this case, bearing in mind the im­
portance of the questions presented?

We are advised that Virginia is not alone in enacting- 
legislation seriously impeding the activites of the plaintiff 
corporations through the passage of similar laws (43 Va. 
L. Rev. 1241). As heretofore noted, the problem for de­
termination is essentially a federal question with no pecu­
liarities of local law. Where the statute is free from 
ambiguity and there remains no reasonable interpretation 
which will render it constitutional, there are compelling 
reasons to bring about an expeditious and final ascertain­
ment of the constitutionality of these statutes to the end 
that a multiplicity of similar actions may, if possible, be 
avoided.

Constitutionality of Chaptees 31 and 32

This discussion brings us at last to a consideration of 
the attack made on the constitutionality of the statutes in 
their bearing upon the activities of the plaintiffs. The two 
registration statutes, Chapters 31 and 32, are free from 
ambiguities which require a prior interpretation by the 
courts of the state and hence the obligation to pass on the 
question of constitutionality cannot be avoided.

Chapter 32 is the more sweeping of the two. Section 1 
declares that harmonious relations between the races are 
essential to the welfare, health and safety of the people of 
Virginia and that it is the duty of the government to exer­
cise all available means to prevent conditions which impede 
the peaceful co-existence of all the peoples in the state, 
and that therefore it is vital to the public interest that 
information be obtained with respect to persons or corpora­
tions whose activities may cause interracial tension or 
unrest.



63a

Section 2 8 of Chapter 32 requires the registration of 
any person who in concert with others engages as one of 
his principal activities (1) in promoting or opposing in 
any manner the passage of legislation by the General As­
sembly, in behalf of any race or color, or (2) in advocating 
racial integration or segregation; and the statute also 
requires the registration of any person, (3) whose activities 
cause or tend to cause racial conflict or violence, or (4) 
who is engaged in raising or expending funds for the em­
ployment of counsel or the payment of costs in connection 
with racial litigation.

§ 2. Every person, firm, partnership, corporation or associa­
tion, whether by or through its agents, servants, employees, officers, 
oi voluntary workers or associates, who or which engages as one of 
its principal functions or activities in the promoting or opposing in 
any manner the passage of legislation by the General Assembly in 
behalf of any race or color, or who or which has as one of its principal 
functions or activities the advocating of racial integration or segre­
gation or whose activities cause or tend to cause racial conflicts or 
violence, or who or which is engaged or engages in raising or ex­
pending funds for the employment of counsel or payment of costs 
in connection with litigation in behalf of any race or color, in this 
State, shall, within sixty days after the effective date of this act and 
annually within sixty days following the first of each year thereafter, 
cause his or its name to be registered with the clerk of the State 
Corporation Commission, as hereinafter provided; provided that in 
the case o f any person, firm, partnership, corporation, association or 
organization, whose activities have not been of such nature as to 
require it to register under this act, such person, firm, partnership, 
corporation, association or organization, within sixty days following 
the date on which he or it engages in any activity making registration 
under this act applicable, shall cause his or its name to be registered 
with the clerk of the State Corporation Commission, as hereinafter 
provided; and provided, further, that nothing herein shall apply to 
the right of the people peaceably to assemble and to petition the gov­
ernment for a redress of grievances, or to an individual freely 
speaking or publishing on his own behalf in the expression of his 
opinion and engaging in no other activity subject to the provisions 
hereof and not acting in concert with other persons.”



64a

The Association is admittedly engaged in activities (1), 
(2) and (4) and the defendants have offered evidence tend­
ing to show that these activities, if successful in bringing 
about integration, would cause racial conflicts and violence. 
The Fund is engaged in activities (2) and (4).

The sort of registration required by Chapter 32 has a 
definite bearing upon the validity of the enactment, since 
a statement of the business of the registrant in much detail 
is prescribed. The registrant, if a corporation, is required 
by § 3 of the statute to file a statement showing amongst 
other things the business address of all of its offices, the 
purpose for which it was formed, a copy of its charter, the 
names of its principal officers, and the names and addresses 
of all of the persons through whom it carries on its activ­
ities in the state, a list of its members and their addresses, 
a financial statement of assets and liabilities, an itemized 
list of its contributions and other income during the preced­
ing year, and a list of its expenditures in detail.

Section 3 provides that, at the time of registration, in­
formation as to the preceding year shall be furnished under 
oath as to the source of any funds received or expended for 
the purposes set forth in § 2, including the name and ad­
dress of each contributor and an itemized statement of ex­
penditures, and also, if the registrant is a corporation, a 
list of its members in the state and their addresses and a 
financial statement showing the assets and liabilities, the 
source of its income, itemizing contributions and the sources 
thereof, and a list of expenditures in detail.

Section 5 makes it a misdemeanor for any person to en­
gage in the activities described in § 2 without registration, 
punishable, in the case of a corporation, by a fine not ex­
ceeding $10,000.00, each day’s failure to register constitut­
ing a separate offense and punishable as such.

Section 6 provides that any person failing to comply 
with the Act may be enjoined from continuing its activities 
by any court of competent jurisdiction.



65a

Section 9 excepts from the Act newspapers, periodicals, 
magazines or other like means admitted as second class mat­
ter in the United States Post Office, as well as radio, tele­
vision, facsimile broadcast or wire service operations. Also 
excepted are persons or associations in a political election 
campaign or persons acting together because of activities 
connected with political campaigns.

Undoubtedly the burden of supplying these statements 
imposed upon persons who engage in activities (1) and (2) 
constitutes a restriction upon the right of free speech which, 
as we have seen, the Association is entitled to exercise. 
Hence the question arises whether the statute is within the 
police powers which, in the past, have been properly exer­
cised in many fields.9 The defendants point out that the 
promoting or opposing passage of legislation covered by 
clause (1) may involve lobbying, which has long been rec­
ognized as a proper subject of regulation by the state and 
federal governments. Thus it was decided in United States 
v. Harriss, 347 U. S. 612, by a divided court, that the reg­
istration provisions of the Federal Regulation of Lobbying 
Act did not violate freedom of speech, provided the scope 
of the Act was limited to persons who had solicited or re­
ceived contributions to influence or defeat the passage of 
legislation and who intended to accomplish this purpose

9 Among the authorities cited by the defendants were cases up­
holding regulation by registration applicable to vocational activities 
( United States v. Harriss, 347 U. S. 612 (1954) and United States 
v. Slaughter, 89 F. Supp. 205 (1950) on lobbyists; Viereck v. United 
States, 318 U. S. 236 (1943) and United States v. Peace Information 
Center, 97 F. Supp. 255 (1951) on foreign agents), subversion 
( Communist Party v. Subversive Activities Control Board, D. C. 
Cir., 223 F. 2d 531 (1954) and Albertson v. Millard, 106 F. Supp. 
635 (1952)), and presidential election activities {Burroughs v. United 
States, 290 U. S. 534 (1934)). Cases involving Congressional con­
trol of the second class mailing privilege ( Lewis Publishing Co. v. 
Morgan, 229 U. S. 288 (1913)), and state control over fraternities 
in state schools ( Waugh v. Mississippi University, 237 U. S. 589 
(1915) and Webb v. State University of New York, 125 F. Supp. 
910 (1954) are also cited.



66a

through direct communication with members of Congress. 
The plain implication of the decision, as appears clearly 
from the dissenting opinions, is that unless the Act were 
so limited it would he an unwarranted interference with 
the right of free speech. The lobbying statute of the State 
of Virginia, §•§ 32-20 to 30-28, is likewise limited to those 
who employ a person to promote or oppose the passage of 
an act of the General Assembly and to a person accepting 
such employment. Such a person is required to register 
his name upon a legislative docket.

The terms of clause (1) of § 2 of the Act contain no such 
limitation. They apply to any person whose principal ac­
tivities include “ the promoting or opposing in any manner 
the passage of legislation by the General Assembly,”  ex­
cepting however, by § 9 of the Act, newspapers and similar 
publications, communications by radio and television, and 
persons engaged in a political election campaign. Hence 
the duty to register is imposed upon anyone who in concert 
with others merely speaks or writes on the subject, even 
if he has had no contact of any kind with the legislative 
body and has neither received nor spent any money to fur­
ther his purpose. The discriminating and oppressive char­
acter of the provision is emphasized by the exemption of 
persons engaged in a political election campaign who are 
free to speak without registration, whereas, persons hav­
ing no direct interest in elections as such and concerned 
only with securing equal rights for all persons are covered 
by the statute. Manifestly so broad a restriction cannot 
be held valid under the ruling of United States v. Harriss, 
supra.

3'he terms of clause (2) impinge directly upon the field 
of free speech for they apply to anyone, with the same ex­
ceptions, whose present activities include “ the advocacy of 
racial integration or segregation,”  and so the same prob­
lem of the extent of regulatory power is presented. It 
must be borne in mind in considering the question that the



67a

prohibition against laws abridging the freedom of speech, 
press and assembly contained in the First Amendment is 
not absolute, for, as was said in Communications Assn. v. 
Douds, 339 U. S. 382, 394, “ it has long been established 
that these freedoms themselves are dependent upon the 
power of constitutional government to survive.”  Conse­
quently in that case the non-Communist affidavits required 
by the Labor Management Relations Act were upheld even 
though the situation did not meet the clear and present dan­
ger tests laid down in Schenck v. United States, 249 U. S. 
47; and in Dennis v. United States, 341 U. S. 494, the clear 
and present danger test was applied in upholding a convic­
tion under the Smith Act, which made it a crime to or­
ganize a group which knowingly and wilfully advocates the 
violent overthrow of the Government of the United States.

The defendants insist that Chapter 32 was enacted for 
the commendable purpose of protecting the public welfare 
and safety and therefore should be upheld. They point to 
the declaration of the policy in the preamble of the statute 
to eliminate all conditions which impede the peaceful co­
existence of all persons in the state and which, according to 
the testimony of law enforcement officers, is threatened by 
the effort to establish integration of the races in the public 
schools. Great dependence is placed upon the decision of 
the Supreme Court in Bryant v. Zimmerman, 278 U. S. 63 
(1928), which is described as the leading case in this field 
most pertinent to the matter now before the court. The 
Supreme Court upheld a New York statute, aimed at the 
activities of the Ku Klux Klan, which required associations 
having an oath-bound membership to file lists of their mem­
bers and officers with a State officer and made it a crime 
for members to attend meetings knowing that the registra­
tion requirement had not been complied with. It was held 
that the statute as applied to a member of the Ku Klux 
Klan would not violate the due process clause of the Four­
teenth Amendment since the state, for its own protection, 
was entitled to the disclosure as a deterrent to violations



68a

of the law; and also that there was no denial of equal pro­
tection in excepting labor unions, Masons and other fra­
ternal bodies from the statutes, since there was a tendency 
on the part of the Ku Klux Klan to shroud its acts in se­
crecy and engage in conduct inimical to the public welfare.

We do not think that these, decisions justify the restric­
tion upon public discussion which Chapter 32 imposes upon 
the plaintiffs in this case. Obviously the purpose and ef­
fect of a regulatory act must be examined in each case in 
light of the existing situation. In the present instance, the 
executive and legislative officers of the state have publicly 
and forcibly announced their determination to impede and, 
if possible, to prevent the integration of the races by all 
lawful means; and the statutes passed at the Extra Session 
were clearly designed to cripple the agencies that have had 
the greatest success in promoting the rights of colored 
persons to equality of treatment in the past, and are pos­
sessed of sufficient resources to make an effort at this time 
to secure the enforcement of the Supreme Court’s decree. 
The statute is not aimed, as the act considered in Bryant 
v. Zimmerman, at curbing the activities of an association 
likely to engage in violations of the law, but at bodies who 
are endeavoi’ing to abide by and enforce the law and have 
not themselves engaged in acts of violence or disturbance 
of the public peace.

The Act is not saved, in so far as the plaintiffs are 
concerned, by making it applicable to advocates of both 
sides of the dispute so that it requires a disclosure of the 
names of persons who may be led to acts of violence by 
reason of their hostility to integration. Such a provision 
does not lead to equality of treatment under the circum­
stances known by the Legislature to prevail. Registration 
of persons engaged in a popular cause imposes no hard­
ship while, as the evidence in this case shows, registration 
of names of persons who resist the popular will would lead 
not only to expressions of ill will and hostility but to 
the loss of members by the plaintiff’s Association.



69a

Nor can the statute be sustained on the ground that 
breaches of peace may occur if integration in the public 
schools is enforced. The same contention was made in 
Buchanan v. Warley, 245 U. S. 60, where the court struck 
down an ordinance of the City of Louisville which forbade 
colored persons to occupy houses in blocks occupied for the 
most part by white persons. The court rejected the 
contention that the prohibition should be sustained on 
the ground that it served to diminish miscegenation and 
to promote the public peace by averting race hostility. See 
pages 73-74:

“ This drastic measure is sought to be justified 
under the authority of the State in the exercise of 
the police power. It is said such legislation tends 
to promote the public peace by preventing racial 
conflicts; that it tends to maintain 7’acial purity; 
that it prevents the deterioration of property owned 
and occupied by white people, which deterioration, 
it is contended, is sure to follow the occupancy of 
adjacent premises by persons of color.

“ The authority of the State to pass laws in the 
exercise of the police power, having for their object 
the promotion of the public health, safety and wel­
fare is very broad as has been affirmed in numerous 
and recent decisions of this court. Furthermore, the 
exercise of this power, embracing nearly all legis­
lation of a local character, is not to be interfered 
with by the courts where it is within the scope of 
legislative authority and the means adopted reasona­
bly tend to accomplish a lawful purpose. But it is 
equally well established that the police power, broad 
as it is, cannot justify the passage of a law or ordi­
nance which runs counter to the limitations of the 
Federal Constitution; that principle has been so 
frequently affirmed in this court that we need not 
stop to cite the cases.”

This comment strikes home with peculiar force to the 
situation in Virginia where the attitude of the public au­
thorities openly encourages opposition to the law of the 
land, which may easily find expression in disturbances of



70a

the public peace. That which was said in Grosjean v. 
American Press Co., 297 U. S. 233, 250, in respect to a 
state license tax imposed on the owners of newspapers 
is pertinent here:

“  * * * the tax here involved is bad not because 
it takes money from the pockets of the appellees. 
If that were all, a wholly different question would 
be presented. It is bad because, in the light of its 
history and of its present setting, it is seen to be a 
deliberate and calculated device in the guise of a 
tax to limit the circulation of information to which 
the public is entitled in virtue of the constitutional 
guaranties. A  free press stands as one of the great 
interpreters between the government and the people. 
To allow it to be fettered is to fetter ourselves.”

For our purpose it is of special significance that in 
Thomas v. Collins, 323 IT. S. 516, the Supreme Court held 
invalid a statute which required a union organizer merely 
to register and secure an organizer’s card from a state 
officer before soliciting membership in a labor union in 
a public speech. It was said “ that as a matter of principle 
a requirement of registration in order to make a public 
speech would seem generally incompatible with the exercise 
of free speech and free assembly.”  The greater burden of 
the registration statutes in suit is manifest.

The terms of clause (3) of § 2 of the statute requiring 
registration of anyone whose activities cause or tend to 
cause racial conflicts or violence require little discussion. 
They are so vague and indefinite that the clause taken by 
itself docs not satisfy the constitutional requirement that 
a criminal statute must give to a person of ordinary intel­
ligence fair notice of the kind of conduct that constitutes 
the crime, United States v. Harris, 347 U. S. 612.

Clause (4) of Chapter 32 requires the registration of 
anyone who engages in raising or expending funds for the 
employment of counsel or the payment of costs in connec­
tion with litigation on behalf of any race or color. In con­
nection with other provisions contained in Chapters 31,



71a

33, 35 and 36 relating to litigation, it constitutes an im­
portant part, perhaps the most important part, of the plan 
devised by the state authorities to impede or to prevent 
the integration of the races in the schools of the state; 
and it subjects the participant to all of the details of 
registration above described.

In its broad coverage the statute applies to any indi­
vidual who employs and pays a lawyer to act for him in 
a law suit involving a racial question. It also covers the 
plaintiff corporations in their effort to raise the money 
which in the past has been used to assist the colored people 
in the prosecution of suits to secure their constitutional 
rights both before and after the decision in Brown v. Board 
of Education.10

10 The reported cases from both federal and state courts in this 
Circuit in which the Association or the Fund has taken an active 
part include: Dawson v. Mayor and City Council of Baltimore City 
and Lonesome v. Maxwell, 220 F. 2d 386, aff'd mem. 350 U. S. 
877, and Department of Conservation and Development v. Tate, 
231 F. 2d 615, cert, denied 352 U. S. 838, dealing with segregation 
ai Maryland public beaches and Virginia public parks; Morgan v. 
Commonwealth, 184 Va. 24, rev’d 328 U. S. 373, and Flemming 
v. South Carolina Elec. & Gas Co., 224 F. 2d 752 and 239 F. 2d 
277, concerning segregation in bus transportation; Alston v. School 
Board of City o f Norfolk, 112 F. 2d 992, cert, denied 311 U. S. 
693, dealing with discriminatory fixing of school teachers’ salaries; 
University o f Maryland v. Murray, 169 Md. 478 and Kerr v. Enoch 
Pratt Free Library o f Baltimore City, 149 F. 2d 212, cert, denied 
326 U. S. 721, concerning racial discrimination in professional school 
admissions; Briggs v. Elliott, 103 F. Supp. 920, rev’d 347 U. S. 
483, remanded 349 U. S. 294, decree entered 132 F. Supp. 776; 
Davis v. County School Board o f Prince Edward County, 103 
F. Supp. 337, rev’d 347 U. S. 483, remanded 349 U. S. 294, decree 
entered sub nom ; Allen v. County School Board o f Prince Edivard 
County, 149 F. Supp. 431, rev’d —  F. 2d — ; Hood v. Board of 
Trustees o f Sumter County, 232 F. 2d 626; School Board o f the 
City of Charlottesville, Va. v. Allen and County School Board of 
Arlington County, Va. v. Thompson. 240 F. 2d 59; School Board 
of the City of Newport News, Va. v. Atkine and School Board of 
the City o f Norfolk, Va. v. Beckett, 246 F. 2d 325, cert. den. 355 
U. S. — , and Slade v. Board of Education of Harford County, Md., 
152 F. Supp. 114, relating to segregation in the public schools.



72a

The right of access to the courts is one of the great 
safeguards of the liberties of the people and its denial 
or undue restriction is a violation of the due process 
clauses of the Fifth and Fourteenth Amendments. That 
the restriction is onerous in this insistance cannot he 
denied, for it is not confined to identification of the col­
lectors of the funds but requires the disclosure of every 
contributor and of every member of the Association whose 
annual dues may have been used in part to pay the ex­
penses of litigation.

Undoubtedly a state may protect its citizens from 
fraudident solicitation of funds by requiring a collector 
to establish his identity and his authority to act; and the 
state may also regulate the time and manner of the solicita­
tion in the interest of public safety and convenience. 
Cantwell v. Connecticut, 310 U. S. 296, 306; Thomas v. 
Collins, 323 U. S. 516, 540. Corrupt Practices Acts which 
seek to preserve the purity of elections by requiring the 
disclosure of the identity of those who strive to influence 
the choice of public officials are also a proper subject of 
legislative regulation. Burroughs v. United States, 290 
U. S. 534. The statute before us, however, presents a very 
different case. It requires not merely the identity of the 
collector of the funds but the disclosure of the name of 
every contributor. In effect, as applied to this case, it 
requires every person who desires to become a member 
of the Association and to exercise with it the rights of 
free speech and free assembly to he registered, and the 
size of his contribution to he shown. This seems to us 
far more onerous than the requirement of a license to 
speak, which was struck down as unconstitutional in 
Thomas v. Collins, supra, especially as in this instance the 
disclosure is prescribed as part of a deliberate plan to 
impede the contributors in the assertion of their consti­
tutional rights. In our opinion all four clauses of § 2 as 
applied to the plaintiffs in this case are unconstitutional.

In reaching this conclusion we may fairly consider not



73a

only the rights of the plaintiff corporations but also the 
rights of the individuals for whom they speak, particularly 
the rights of the members of the Association and generally 
the members of the colored race in whose interests the 
plaintiffs carry on their work. The rights that the plain­
tiffs assert take their color and substance from the rights 
of their constituents; and it is now held that where there 
is need to protect fundamental constitutional rights the 
rule of practice is relaxed, which confines a party to the 
assertion of his own rights as distinguished from the 
rights of others. See Barrows v. Jackson, 346 U. S. 249, 
257. This rule was applied in Brewer v. Hoxie School 
District, 8 Cir., 238 F. 2d 91, 104, where the school board 
in an Arkansas county brought suit to restrain certain 
organizations from obstructing the board in its efforts to 
secure the equal protection of the laws to all persons in 
the operation of the public schools in the district. The 
court said:

“ The school board having the duty to afford the 
children the equal protection of the law has the cor­
relative right, as has been pointed out, to protection 
in performance of its function. Its right is thus 
intimately identified with the right of tlie children 
themselves. The right does not arise solely from 
the interest of the parties concerned, but from the 
necessity of the government itself. * * * Though, 
generally speaking, the right to equal protection is 
a personal right of individuals, this is ‘ only a rule 
of practice’, * * * which will not be followed where 
the identity of interest between the party asserting 
the right and the party in whose favor the right 
directly exists is sufficiently close.”

For like reasons Chapter 31, which covers much the 
same ground as clause (4) of § 2 of Chapter 32, must also 
be held invalid. The introductory paragraph of § 2 is as 
follows:

“ No person shall engage in the solicitation of 
funds from the public or any segment thereof when



74a

such funds will be used in whole or in part to com­
mence or to prosecute further any original pro­
ceedings, unless such person is a party or unless he 
has a pecuniary right or liability therein, nor shall 
any person expend funds from whatever source re­
ceived to commence or to prosecute further any 
original proceedings, unless such person is a party 
or has a pecuniary right or liability therein until 
any person shall first:” —and then follows

Section 2(1) which requires the corporation to file an­
nually a copy of its charter, a certified list of its officers and 
directors and members, a statement showing the source of 
each contribution or other item of revenue received during 
the preceding year and, if required by the State Corpora­
tion Commission, the name and address of each contribu­
tor; also a statement showing in detail the expenditures 
during the preceding year and any other information re­
quired by the State Corporation Commission.

Section 3 makes a violation of the Act a misdemeanor 
punishable by fine of not more than $10,000 and the denial 
of admission to do business in the state. Violations of the 
Act may be enjoined in any court of record having civil 
jurisdiction. Every director aiid officer of the corporation 
and every person responsible for the management of its 
affairs is personally liable for the payment of the fine.

Further consideration of the restrictions imposed upon 
litigation on behalf of the colored race by the Virginia 
plan will be found in the following discussion in respect to 
Chapters 33, 35 and 36 also passed at the Extra Session of 
1956.

Chapter 35

Chapters 33, 35 and 36 all relate to the improper prac­
tice of law. They are of prime importance since they 
furnish the basis for the contention of the prosecuting 
officers of the state that the plaintiff corporations are un­



lawfully engaged in the practice of law in Virginia and 
hence are not entitled to maintain these suits. Chapters 
35 and 36, and the amendment of the sections of the Vir­
ginia Code relating to the illegal practice of law contained 
in Chapter 33, are new in the statute law of the state and 
are essential parts of the plan which deprives the colored 
people of the state of the assistance of the Association and 
the Fund in the assertion of their constitutional rights. To 
this end each of the statutes contains provisions which 
would bar the Association and the Fund from continuing 
to give the kind of assistance to colored plaintiffs in racial 
litigation which they have rendered for many years in the 
past.

We consider first Chapter 35 since it contains a care­
fully phrased definition of the crime of barratry and is 
free from ambiguity. Barratry is defined in § 1 as stirring 
up litigation; a barrator is one who stirs up litigation; and 
stirring up litigation means instigating a person to in­
stitute a suit at law or equity. The terms “ instigating,”  
“ justified”  and “ direct interest”  are defined in §§ 1(d), 
(e) and (f) as follows:

“ (d) ‘ Instigating’ means bringing it about that 
all or part of the expenses of the litigation are paid 
by the barrator or by a person or persons (other 
than the plaintiffs) acting in concert with the bar­
rator, unless the instigation is justified.

“ (e) ‘ Justified’ means that the instigator is 
related by blood or marriage to the plaintiff whom 
he instigates, or that the instigator is entitled by 
law to share with the plaintiff in money or property 
that is the subject of the litigation or that the in­
stigator has a direct interest in the subject matter 
of the litigation or occupies a position of trust in 
relation to the plaintiff; or that the instigator is 
acting on behalf of a duly constituted legal aid 
society approved by the Virginia State Bar which 
offers advice or assistance in all kinds of legal 
matters to all members of the public who come to



76a

it for advice or assistance and are unable because 
of poverty to pay legal fees.

“ (f) ‘ Direct interest’ means a personal right 
or a pecuniary right or liability.”

The Legislature was careful to make exception of cer­
tain special situations and class suits in the following- 
language :

“ This act shall not be applicable to attorneys 
who are pai-ties to contingent fee contracts with 
their clients where the attorney does not protect 
the client from payment of the cost and expense of 
litigation, nor shall this act apply to any matter 
involving annexation, zoning bond issues, or the hold­
ing or results of any election or referendum, nor 
shall this act apply to suits pertaining to or affect­
ing possession of or title to real or personal prop­
erty, regardless of ownership, nor shall this act 
apply to suits involving the legality of assessment 
of collection of taxes or the rates thereof, nor shall 
this act apply to suits involving rates or charges ox- 
services by common carriers or public utilites, nor 
shall this act apply to criminal prosecutions, nor to 
the payment of attorneys by legal aid societies 
approved by the Virginia State Bar, nor to pro­
ceedings to abate nuisances. Nothing herein shall 
be construed to be in derogation of the constitutional 
rights of real parties in interest to employ counsel 
or to prosecute any available legal remedy under 
the laws of this State.”

The refex-exxce to the Virginia State Bar in §§ l ( e )  and 
(f) is explained by the terxns of Chapter 47, also passed 
at the Exti-a Sessioxx, which authorized the State Bax- 
through its governing body to promulgate rules and regu­
lations governing the function and operation of legal aid 
societies, and empowered the Attorney General to enforce 
such rules and regulations if authorized to do so by the 
State Bar. The record in this case does not show whether 
the State Bar has taken action under the statute, but for



i <a

present purposes this is not important since § l ( e )  of 
Chapter 35 limits the regulatory power of the State Bar to 
legal aid societies which offer advice or assistance in all 
kinds of legal matters to all members of the public who 
come to it advice and assistance and are unable because of 
poverty to pay legal fees. Organizations such as the 
Association and the Fund, which offer advice and assistance 
to a limited class of persons only, could not claim that they 
were “ justified” , even if they should have been approved 
by the State Bar.

Sections 2 and 3 make it a misdemeanor to engage in 
barratry punishable, if the barrator is a foreign corpora­
tion, by a fine of not more than $10,000 and the revocation 
of its certificate of authority to do business in the state; 
and § 6 declares that an attorney at law who violates the 
Act is guilty of unprofessional conduct and that his license 
to practice law shall be revoked after hearing (under §54- 
74 of the Code) for such period as the court may determine.

Obviously the plaintiff corporations will be amenable 
to these penalties if they continue to pay any part of the 
expenses of racial litigation in Virginia since they would 
not be “ justified”  within the terms of § l ( e )  of the Act; 
and attorneys at law connected with the plaintiff corpora­
tions who prosecute suits for colored persons, when author­
ized by them to do so, would also be liable to punishment 
if they assist, as they have done in the past, in bringing 
it about that any part of the expenses of litigation are paid 
by the Association or by the Fund.

The broad question is therefore raised as to whether 
it is within the power of the state to make it a crime for 
any corporation other than a general legal aid society to 
pay in whole or in part the expenses of litigation if it has 
only a general philanthropic or charitable interest in the 
litigation and does not have the kind of special interest 
described in the statute. Specifically, as applied to the facts 
of this case, the question is whether Virginia may make



78a

it a crime for organizations interested in the preservation 
of civil rights to contribute money for the prosecution of 
lawsuits instituted to promote this cause.

The right of the state to require high standards of 
qualification for those who desire to practice law within 
its borders and to revoke or suspend the license to practice 
law of attorneys who have been guilty of unethical con­
duct is unquestioned. Schware v. Board of Bar Examiners, 
353 U. S. 232; Richmond Assn, of Credit Men v. Bar Asso­
ciation, 167 Va. 327; Campbell v. Third Dist. Committee, 
179 Va. 244. Solicitation of business by an attorney is re­
garded as unethical conduct and a proper subject of dis­
ciplinary action; and it has been held that the state may 
prohibit a layman engaged in the business of collecting 
accounts from soliciting employment for this purpose, since 
a regulation which aims to bring the conduct of the busi­
ness in harmony with the ethical practices of the legal 
profession is reasonable. McCloskey v. Tobin, 252 U. S. 
107. Independent of statute, it is contrary to public policy 
for a corporation to practice law, directly or indirectly, 
since the relationship of attorney and client is one involv­
ing the highest trust and confidence and cannot exist be­
tween an attorney employed by the corporation and a 
client of the corporation; and so in Richmond Assn, of 
Credit Men v. Bar Association, supra, it was held that a 
credit association was engaged in the unlawful practice 
of law when, acting with the authority of creditors, it 
selected and paid the lawyers who were employed to make 
the collection by suit or otherwise.

The standards of the legal profession in these respects 
are carefully set forth in Canon 28 of the Canons of Pro­
fessional Ethics of the American Bar Association, which 
condemns the stirring up of strife and litigation and de­
clares it unprofessional for a lawyer to volunteer advice 
to bring a law suit except in cases where ties of blood, 
relationship or trust make it his duty to do so. It is de-



79a

dared to be disreputable to engage in such acts as hunting 
up defects in titles or seeking claims for personal injuries, 
or employing agents or runners for like purposes.

It is manifest, however, that the activities of the plain - 
tiff corporations are not undertaken for profit or for the 
promotion of ordinary business purposes but, rather, for 
the securing of the rights of citizens without any possibility 
of financial gain. Its activites are not covered by Canon 
28 but rather by Canon 35 entitled Intermediaries, which 
relates inter alia to the aid rendered to indigent litigants 
by charitable societies and provides in part as follows:

“ The professional services of a lawyer should 
not be controlled or exploited by any lay agency, 
personal or corporate, which intervenes between 
client and lawyer. A  lawyer’s responsibilities and 
qualifications are individual. He should avoid all 
relations which direct the performance of his duties 
by or in the interest of such intermediary. A law­
yer’s relation to his client should be personal, and 
the responsibility should be direct to the client. 
Charitable societies rendering aid to the indigents 
are not deemed such intermediaries.’ ’

Canon 35 was cited with approval in Richmond Assn, of 
Credit Men v. Bar Association, 167 Ya. at 334. Indeed the 
exclusion of lawyers when acting for benevolent purposes 
and charitable societies, as distinguished from business cor­
porations, from the restrictions imposed by the canons of 
Professional Ethics has long been recognized in the ap­
proval given by the courts to services voluntarily offered 
by members of the bar to persons in need, even when the 
attorneys have been selected by corporations organized to 
serve a cause in a controversial field. See the historic in­
cidents listed in the opinion In re Ades, D. C.-Md. 6 F. Supp. 
467, 475; and see also Gunnells v. Atlanta Bar Assn., 191 
Ga. 366, 12 S. E. 2d 602, where the Supreme Court of 
Georgia refused an injunction to restrain the bar associa­



80a

tion and its members from offering their services to bor­
rowers of money at usurious rates in defense of suits that 
might be brought against them. The Court said at page 
382:

“ It is not wrongful to induce a repudiation of an 
illegal contract. * * * Nor was the defendant’s offer 
to represent free of charge persons caught in the 
toils of the usurious money-lender in defending 
against such illegal exactions, and to represent them 
in bringing actions to recover amounts illegally paid 
under loan contract, a violation of the Code, * * * 
in reference to the solicitation of legal employment 
and the offense of barratry. We do not believe that 
it is true, as contended by counsel for the plaintiff, 
that the enforcement of the usury laws of this State 
is a matter solely for the law-enforcement officers 
and of those from whom usury is being exacted, and 
that it is illegal and unethical for lawyers to publicly 
criticize an alleged widespread violation of such laws 
and to seek to eradicate the evil by the means here 
shown. Much could be said as to why their position 
in the community makes it entirely appropriate that 
they undertake such a movement and assume such 
responsibilities in reference to the general welfare 
of the public. We see no reason why the judgment 
of the learned judge should be disturbed.”

Chapter 35, in failing to recognize this settled rule, vio­
lates well-established constitutional principles in its bear­
ing upon the plaintiff corporations. “ A  State cannot ex­
clude a person from the practice of law or from any other 
occupation in a manner or for reasons that contravene the 
Due Process or Equal Protection Clause of the. Fourteenth 
Amendment” , Schware v. Board of Bar Examiners, 353 
U. S. 232, 238. In the first place, the statute obviously vio­
lates the equal protection clause, for it forbids the plaintiffs 
to defray the expenses of racial litigation, while at the 
same time it legalizes the activities of legal aid societies 
that serve all needy persons in all sorts of litigation. No



81a

argument has been offered to the court to sustain this dis­
crimination. Moreover, Chapter 35 violates the due proc­
ess clause, for it is designed to put the plaintiff corpora­
tions out of business by forbidding them to encourage and 
assist colored persons to assert rights established by the 
decisions of the Supreme Court of the United States. The 
activities of the plaintiffs as they appear in these cases do 
not amount to a solicitation of business or a stirring up of 
litigation of the sort condemned by the ethical standards of 
the legal profession. They comprise in substance public in­
struction of the colored people as to the extent of their 
rights, recommendation that appeals be made to the courts 
for relief, offer of assistance in prosecuting the cases when 
assistance is asked, and the payment of legal expenses for 
people unable to defend themselves; and the attorneys who 
have done the work have done so only when authorized by 
the plaintiffs. The evidence is uncontradicted that the ini­
tial steps which have led to the institution and prosecution 
of racial suits in Virginia with the. assistance of the Asso­
ciation and the Fund have not been taken until the pro­
spective plaintiffs made application to one or the other of 
the corporations for help. In our opinion the right of the 
plaintiff corporations to render this assistance cannot be 
denied.

No doubt, the State of Virginia has the right reasonably 
to regulate the practice of law, but, where that regulation 
prohibits otherwise lawful activities without showing any 
rational connection between the prohibition and some per­
missible end of legislative accomplishment, the regulation 
fails to satisfy the requirements of due process of law. 
Here, under the guise of regulating unauthorized law prac­
tice, the General Assembly has forbidden plaintiffs to con­
tinue their legal operations.

Chapters 33 and 36 are also phrased so as to interfere 
with the activities of the plaintiffs. This is done in Chap­



82a

ter 33 by amending §§ 54-74, 54-78 and 54-79 of Article 7 
of the Code relating to malpractice and to the improper so­
licitation of legal business for an attorney by a “ runner”  
or “ capper” , so as to include within the definition of these 
terms a person who employs an attorney in connection with 
any judicial proceeding in which the person has no pe­
cuniary right or liability. The language of the statute, 
especially portions of § 54-74(6) and § 54-78(1),11 is obscure * 1

ii “ § 54.74,

(6 ) ‘Any malpractice, or any unlawful or dishonest or unworthy 
or corrupt or unprofessional conduct’, as used in this section, shall 
be construed to include the improper solicitation of any legal or 
professional business or employment, either directly or indirectly, 
or the acceptance o f employment, retainer, compensation or costs 
from any person, partnership, corporation, organisation or associa­
tion until knowledge that such person, partnership, corporation, 
organisation or association has violated any provision o f Article 7 
o f this chapter. . .

“'§ 54-78. As used in this article:

(1 ) A  ‘runner’ or ‘capper’ is any person, corporation, partnership 
or association acting in any manner or in any capacity as an agent 
for an attorney at law within this State or for any person, partner­
ship, corporation, organisation or association which employs, retains 
or compensates any attorney at law in connection with any judicial 
proceeding in which such person, partnership, corporation, organisa­
tion or association is not a party and in which it has no pecuniary 
right or liability, in the solicitation or procurement of business for 
such attorney at law * or for  such person, partnership, corporation, 
organisation or association in connection with any judicial proceed­
ings for which such attorney or such person, partnership, corporation, 
organisation or association is employed, retained or compensated.

“ The fact that any person, partnership, corporation, organisation 
or association is a party to any judicial proceeding shall not authorise 
any runner or capper to solicit or procure business for such person, 
partnership, corporation, organisation or association or any attorney 
at law employed, retained or compensated by such person, partner­
ship, corporation, organisation or association.

“ (2) An ‘agent’ is one who represents another in dealing with 
a third person or persons.”



83a

and difficult to understand, but the general purpose seems 
to be to hit any organization which participates in a law suit 
in which it has no financial interest and also to fasten the 
charge of mal-practice upon any lawyer who accepts em­
ployment from such an organization. If the statute should 
be so interpreted as to forbid a continuance of the activ­
ities of the plaintiff corporations in respect to litigation as 
described in this opinion, it would in large measure destroy 
their effectiveness.

Chapter 36, $ 1(a), is aimed at anyone not having a di­
rect interest in the proceeding, who gives, receives or so­
licits anything of value as an inducement to any person to 
commence a proceeding in any court or before any admin­
istrative agency of the state or in any United States court 
in Virginia against the Commonwealth of Virginia, or any 
department or subdivision thereof, or any person acting as 
an officer or employee of any of the foregoing. Section 1(b) 
makes it unlawful for anyone who has no direct interest in 
the subject matter of the proceeding to advise or otherwise 
instigate the bringing of a suit or action against any of the 
defendants above described. Here again the language is 
ambiguous, and doubts have arisen as to whether the giv­
ing of advice to persons as to their constitutional rights 
amounts to the “ instigation”  12 of a suit or whether the 
giving of money to needy litigants amounts to an “ induce­
ment”  to bring a suit. If so construed as to restrict the 
activities of the plaintiff corporations disclosed by the evi­
dence in these cases, their effectiveness would be in large 
measure destroyed. Since Chapters 33 and 36 are. vague 
and ambiguous we do not pass upon their constitutionality.

We have come perforce to these final conclusions since 
the contrary position cannot be justly entertained. If the

12 In Chapter 35 the verb “ to instigate’’ is given a very precise 
definition, but in Chapter 36 it is given no definition at all.



84a

Acts of the General Assembly of Virginia should be held 
to outlaw the activities of the plaintiff corporations, the 
Commonwealth would be free to use all of its resources in 
its search for lawful methods to postpone and, if possible, 
defeat the established constitutional rights of a body of its 
citizens, while the colored people, of the state would be 
deprived of the resources needed to resist the attack in the 
state and federal courts. The duty of this court to avoid 
such a situation, if possible, is manifest.

Accordingly, an injunction will be granted restraining 
the defendants from proceeding against the plaintiffs under 
Chapters 31, 32 and 35 because of the activities of the 
plaintiffs in the past on behalf of the colored people in 
Virginia as disclosed in the evidence in these cases or be­
cause of the continuance of like activities in the future.

As to Chapters 33 and 36, the complaints will be retained 
for a reasonable time pending the determination of such 
proceedings in the state courts as the plaintiffs may see fit 
to bring to secure an interpretation of these statutes; and 
in the meantime, the court will assume that the defendants 
will continue to co-operate, as they have in the past, in 
withholding action under the authority of the statutes until 
a final decision is reached; and the plaintiffs may petition 
the court for further action if at any time they deem it 
their interest to do so.

H offman, D istrict  Judge, concurs.



8oa

H utuheson, District Judge, concurring in part and dis­
senting :

This Court has before it for determination certain ques­
tions which may be resolved into one, simply stated; that 
is, whether this Court is to be bound by well-known prin­
ciples of judicial construction, hrmly embedded in the fabric 
of the law and announced time after time by the Supreme 
Court of the United States, or is this Court to disregard 
these principles and follow a new course based upon infer­
ences tortuously drawn from expressions which may be 
found in some of the opinions? A mere statement of the 
question demonstrates its importance. That importance is 
accentuated by the fact that the case involves the tradi­
tionally delicate balance between the courts of the state and 
the Federal Courts. The importance of the principle can 
hardly be over emphasized.

Repeatedly the Courts have discussed at length the 
“ deeply rooted”  doctrine which has become a “ time-hon­
ored canon of constitutional adjudication”  that Federal 
Courts do not interfere with state legislation when the 
asserted federal right may be preserved without such inter­
ference. We have been told by the Supreme Court in clear 
language that where it is necessary to construe a state 
statute in order to determine whether a federal right is 
involved the construction must be that of the court of the 
state by which the statute is to be enforced. The rule and 
the reason for the rule have been made plain by the same 
authority.

Before discussing the areas in which I find myself in 
disagreement with my learned associates, I am glad to 
concur in their decision that the exercise of jurisdiction be 
withheld as to Chapters 33 and 36 of the Acts of the General 
Assembly until those statutes have been construed by the 
courts of the state, although I do not agree with the rea­
soning upon which that decision is based.



86a

At this point my concurrence ends. Since my views con­
cerning the issues are so much at variance with those 
expressed in the majority opinion I am constrained to file 
this separate opinion. In addition to disagreement with the 
legal conclusions of the majority of the Court, I find myself 
in disagreement with their statement of the facts. In my 
opinion the evidence does not support many factual con­
clusions recited in the elaborate statement found in the 
opinion. Since the facts are of minor importance at this 
point, I shall not undertake to set out the numerous errors 
and omissions which appear. It would serve no useful 
purpose and would unduly prolong this opinion. Howrever, 
for the record I register my disagreement.

In passing, attention is called to what I regard as an 
immaterial and unnecessary discussion of extraneous mat­
ter relating to the action of the Supreme Court in the School 
Segregation Cases, speeches of the Governor of Virginia, 
expressions contained in a report of a Legislative Commis­
sion appointed by the Governor, resolutions of the General 
Assembly, the Constitutional Referendum, and the deci­
sions involving what is known as the Pupil Placement Act. 
The lengthy recital pertaining to the legislative history can 
have only one effect, which is to becloud the issue before 
the Court and to surround the case with an atmosphere 
foreign to the judicial calm which should prevail when a 
legal principle is dealt with. I question the relevancy of 
much of this material at any time, but certainly it can 
have no proper place here where we are concerned with 
orderly procedure in a court of law and with a principle 
of first importance. The issue should not be obscured by 
an emotional approach.

Such facts as need be stated here are simple and may 
be briefly recited. Plaintiffs are corporations chartered 
under the laws of the State of New York and licensed to do 
business in Virginia. The defendants are the Attorney 
General of Virginia and certain other officials, charged with



87a

enforcing the laws of the Commonwealth. The principal 
objectives of the plaintiffs, sofar as here pertinent, are the 
dissemination of information concerning the legal rights of 
members of the colored race, the organization of groups to 
seek the enforcement of such rights, the solicitation of funds 
to be used, and the use of such funds, in promoting the 
objectives stated and in financing litigation involving cases 
in which it is alleged that members of that race are being 
discriminated against on account of racial origin.

In Extra Session in 1956 the General Assembly in Vir­
ginia passed certain statutes which are the subject matter 
of the present controversy. Those statutes fall into two 
categories.

The first, consisting of Chapters 31 and 32, are designed 
to regulate the conduct of persons or corporations who 
solicit funds to be used and to expend funds to finance or 
maintain litigation of others. Emphasis is placed upon 
activities pertaining to conflicting racial interests. The 
statutes would be applicable to activities such as those 
engaged in by the plaintiffs and those of other organizations 
similarly operating in Virginia.

The second set of statutes, being Chapters 33, 35 and 
36, are designed to regulate the conduct of those licensed to 
or engaged in the practice of law in Virginia.

The plaintiffs contend that the statutes are unconsti­
tutional in that if enforced they would be deprived of 
rights guaranteed under the Fourteenth Amendment to 
the Constitution of the United States. The relief sought 
is an injunction and a declaratory judgment. While there 
are actually two cases brought by separate plaintiffs the 
issues are such that they are being dealt with as one.

Motions to dismiss for lack of jurisdiction have been 
filed and there has been a full hearing of the case. The 
various questions presented have been argued, and may be 
concisely stated as dealing with the following:



88a

1. Jurisdiction of the Court;
2. Motives of the General Assembly in enacting 

the statutes;
3. Whether in the exercise of its discretion the 

Court should accept jurisdiction if it exists;
4. The construction of the statutes.

J urisdiction of the Court

The jurisdiction of the Court is attacked upon two 
grounds. The first relates to the jurisdictional amount of 
$3,000.00 under the Diversity Statute, and the second re­
lates to the civil rights of a corporation under the Four­
teenth Amendment.

(a) While it may be debatable, it is my view that the 
jurisdictional amount has been shown by the evidence 
presented sufficiently to justify the Court in hearing the 
cases.

(b) The defendants rely upon Hague v. C. I. O., 307 
U. S. 496, in support of their contention that the corpora­
tions are not entitled to the privileges and immunities 
which the Fourteenth Amendment secured for citizens of 
the United States. For present purposes a recital of the 
facts of that case may be limited to the statement that 
the plaintiffs consisted of certain individuals and a corpo­
ration, all of whom contended that the enforcement of a 
city ordinance would deprive them of the right of free 
speech. The case is directly in point. There were a number 
of opinions filed. In the main syllabus the following 
language is used:

“ The ordinances and their enforcement violate 
the rights under the Constitution of the individual 
plaintiffs, citizens of the United States; but a com­
plaining corporation can not claim such lights. 
P. 514.”



89a

In the syllabus covering the opinion of Mr. Justice 
Roberts substantially the same analysis is given. (2 (b)). 
See also Section 4 in syllabus of the opinion of Mr. Justice 
Stone.

In the opinion of Mr. Justice Roberts, in which Mr. 
Justice Black concurred, the following appears on page 
514 :

“ Natural persons, and they alone, are entitled to 
the privileges and immunities which Section 1 of 
the Fourteenth Amendment secured for ‘ citizens of 
the United States’. (Citing cases.) Only the indi­
vidual respondents may, therefore, maintain this 
suit.”

In the opinion of Mr. Justice Stone, with Mr. Justice 
Reed concurring, on page 527 the following language ap­
pears :

“ Since freedom of speech and freedom of as­
sembly are rights secured to persons by the due 
process clause, all of the individual respondents 
are plainly authorized by Section 1 of the Civil 
Rights Act of 1871 to maintain the present suit in 
equity to restrain infringement of their rights. As 
to the American Civil Liberties Union, which is a 
corporation, it cannot be said to be deprived of the 
civil rights of freedom of speech and of assembly, 
for the liberty guaranteed by the due process clause 
is the liberty of natural, not artificial, persons.”  
(Citing cases.)

In the concurring opinion of Mr. Chief Justice Hughes 
on page 532, the following appears:

“ With respect to the point as to jurisdiction I 
agree with what is said in the opinion of Mr. Justice 
Roberts as to the right to discuss the National Labor 
Relations Act being a privilege of a citizen of the 
United States, but I am not satisfied that the record 
adequately supports the resting of jurisdiction upon 
that ground. As to that matter, I concur in the 
opinion of Mr. Justice Stone.”  See dissenting 
opinion of Mr. Justice Butler.



90a

Mr. Justice McReynolds dissented, being of opinion the 
case should be remanded to the District Court with instruc­
tions to dismiss the bill, he having concluded that the Dis­
trict Court should have refused to interfere Avith the rights 
of the municipality to control its parks and streets. He 
used the following language:

“ Wise management of such intimate local affairs, 
generally at least, is beyond the competency of fed­
eral courts, and essays in that direction should be 
avoided.

“ There was ample opportunity for respondents 
to assert their claims through an orderly proceed­
ing in courts of the state empowered authoritatively 
to interpret her laws with final revieAv here in respect 
of federal questions.”

See also interpretation of Mr. Justice Frankfurter in 
Bridges v. State of California, 314 IT. S. 252, 280, where in 
a dissenting opinion he discussess the rights of the states 
in respect of their internal affairs. He cites Hague as draAv- 
ing a distinction betAveen the rights of natural and artifi­
cial persons.

The plaintiffs here, both being corporations, contend 
they are entitled to such protection and point to the earlier 
case of Gr os jean v. American Press Company, 297 U. S. 
233,1 and other cases involving corporations engaged in the 
publication of neAvspapers, magazines, etc. A careful ex­
amination of Grosjean discloses that it docs not support 
such contention. On page 244 the Court, after observing 
that freedom of speech and of the press are rights of the 
same fundamental character, (the Court did not say the 
rights are the same as Avould appear to be the interpreta­
tion by the majority of this Court) safeguarded by the due 
process of laAV clause, used the following language:

“ Appellant contends that the Fourteenth Amend­
ment does not apply to corporations; but this is only

1 Cited in Hague v. C. I. O. at page 519.



91a

partly true. A corporation, we have held, is not a 
‘ citizen’ within the meaning of the privileges and 
immunities clause. Paul v. Virginia, 8 Wall. 168. 
But a corporation is a ‘ person’ within the meaning 
of the equal protection and due process of law 
clauses, which are the clauses involved here. Cov­
ington <& Lexington Turnpike Co. v. Sandford, 164 
U. S. 578, 592; Smyth v. Ames, 169 U. S. 466, 522.”

The opinion concludes with the following language:
‘ ‘ Having reached the conclusion that the act im­

posing the tax in question is unconstitutional under 
the due process of law clause because it abridges 
the freedom of the press, we deem it unnecessary 
to consider the further ground assigned that it also 
constitutes a denial of the equal protection of the 
laws.”

This language should set at rest the contention that 
that case is controlling as respects the position of the 
plaintiffs. It could not be clearer that it does not support 
that contention but it is consistent with Hague.

Grosjean and similar cases relate primarily to and are 
founded upon the right of freedom of the press. It follows 
that Hague is controlling and corporations are not entitled 
to the rights of a natural person. From the nature of the 
rights it is obvious that it was never intended that a 
corporation should enjoy such rights as a natural person. 
It is equally obvious that freedom of the press should not 
be limited to natural persons. This appears determinative 
of the rights of the plaintiffs. I realize that it is a ques­
tion which properly may be determined by the state court 
and a determination by this Court at this time might be 
premature. My view is that it should finally dispose of 
the case.



92a

M otives of the General A ssembly in 
E nacting the Statutes

The emphasis placed by the majority upon collateral 
occurrences would indicate reliance upon such occurrences 
in reaching the conclusions there stated as a justification 
for disregarding accepted rules of both procedure and con­
struction. The majority has undertaken to assess the 
motives of the legislative body as a collective whole as 
distinguished from the familiar rule relating to legislative 
intention or purpose in construing statutes of uncertain 
meaning. They say, in effect, that by the enactment of 
certain other statutes relating to public schools coupled 
with the statutes now under attack, the Legislature has 
attempted to provide a legal means of avoiding compliance 
with the order of the Supreme Court of the United States 
in the School Segregation Cases. From this premise they 
infer that the statutes here involved are tainted with 
illegality by way of association—a somewhat novel con­
cept which seems to have acquired some judicial recogni­
tion in recent times. They appear to proceed upon the 
theory that the Supreme Court has ordered the public 
schools mixed racially. As has been repeatedly pointed 
out, the Supreme Court did not make such an order. If 
lawful means to comply with the order issued and at the 
same time retain unmixed schools can be found, there 
is no unlawful thwarting of the Supreme Court mandate 
and consequently no invalidity shown. However, we are 
not now concerned with this question.

The issue here goes deeper. That issue is whether the 
Judicial branch of the Government can sit in judgment 
upon the collective personal motives or influences activat­
ing those charged with the responsibility of conducting 
the affairs of one of the other co-ordinate branches. If 
this can be done the result may be far-reaching indeed.

While it is proper for the Court in construing a statute 
to inquire into the intention or purpose of its enactment 
when its language is ambiguous or uncertain, inquiry into



93a

the motives prompting the members of the legislative body 
in casting their votes respecting such enactment presents 
an entirely different situation. Fletcher v. Peck, 10 U. S. 
87, decided in 1810, contains a discussion of the subject 
which is applicable today. In his opinion beginning on 
page 128, Chief Justice Marshall pointed to some of the 
perplexities which would be involved. Mr. Justice Johnson 
elaborated upon this in his opinion beginning on page 148. 
In that case actual fraud coupled with financial gain on 
the part of legislators was shown but the statutes were 
recognized as valid. It is inconceivable that the judicial 
branch of the Government should undertake to exercise 
the power to inquire into the motives of the legislative 
branch as a collective body. If the individual members 
are guilty of fraud or other unlawful conduct, they are 
subject to legal sanctions as individuals and they are 
answerable to their constituents at the polls.

Following the lengthy discussion of what is described as 
the “ setting”  in which the Acts were passed, the majority 
ignores Fletcher v. Peck, gives a nod of recognition to 
Penny v. Brandhove, 341 U. S. 367, with an acknowledg­
ment that a court may not inquire into the legislative motive 
and proceeds with an assertion that the legislative purpose 
may be the subject of inquiry, giving as authority Baskin v. 
Brown, 174 Fed. (2d) 391, 392, 393, and Davis v. SchneU, 
81 Fed. Supp. 872, 878-880, affirmed by per curiam decision 
in 336 U. S. 933, where it was noted that Mr. Justice Reed 
was of opinion that since a constitutional provision of a 
state was involved, probable jurisdiction should be noted 
and the case argued. From the language used by the ma­
jority, it would appear that purpose or intention have been 
confused with motive. The first case relied upon, Davis v. 
Schnell, was from a three-judge District Court in Alabama. 
It involved the right to vote. The Court recited in detail 
the legislative history of the act. In discussing its views 
in Baskin v. Brown, the Court cited Davis v. Schnell and 
quoted from that opinion concerning the intention and pur­



94a

pose of the, legislation. As I read both opinions, they use 
the term “ purpose”  as similar or synonymous with “ in­
tention” . Neither discusses the motives influencing the 
Legislature and in neither is Fletcher v. Peck nor Penny v. 
Brandhove mentioned. While they tend to give color to 
the suggestion that motive may be considered, I am unable 
to accept them as authority for such theory. And see Las­
siter v. Taylor, 152 Fed. Supp. 295 (E. D. N. C.) (1957), 
from which may be inferred a position contrary to the 
Davis and Baskin cases. Lane v. Wilson, 307 U. S. 268, is 
the, third ease upon which the majority bases its conclusion 
upon this point. It must be borne in mind that Lane v. 
Wilson was an action for damages brought under a statute 
conferring original jurisdiction in such cases upon the Fed­
eral Court.

In none of these cases is the question so fully presented 
and discussed as in Fletcher and Penny, in both of which 
the underlying principle is recognized.

If it be conceded that the Courts may inquire into the 
personal motives of legislators a maze of avenues of pos­
sible inquiry is seen. Must the, motive be corrupt; what 
proof will show corruption—a state of mind or personal 
gain? Would undue influence vitiate the act? Must the 
improper motive exist on the part of a m ajority; if not on 
the part of a majority, on what number? If bad motive on 
the part of a majority of the legislature, is required, is it 
necessary that it be a majority of the entire body or of only 
those who supported the legislation? What type of proof 
would be sufficient to show improper motive? Is the bur­
den of proof similar to that required in ordinary cases in­
volving fraud? Must actual fraud be proven or is con­
structive fraud sufficient? In recognition of the principle 
that the acts of a sovereign are pure, upon what historic 
concept can one of the three great branches of a republican 
form of government denounce as impure the act of a co­
ordinate branch? I f this can be done, will it be necessary 
that the third co-ordinate branch concur in the, result? The 
questions posed show the absurdity of the contention urged



95a

by the plaintiffs and apparently approved by the majority 
of this Court, that the motives of the legislature are a 
proper subject of inquiry.

Before, leaving this subject, I call attention to what 
seems an inconsistency. Having assumed the power to in­
terpret the statutes and basing that interpretation, at least 
in part, upon the motives of the Legislature, the majority 
denounce^ only some of the statutes and leaves the others 
for construction by the state Court. There naturally arises 
the question of why such motives should taint only a lim­
ited number of the statutes and not others constituting this 
alleged unlawful scheme.

W hether in the E xercise of Its D iscretion the 
Court S hould A ccept Jurisdiction if it E xists

Time after time the, Courts have given expression to the 
propriety of recognizing the delicate balance between the 
Courts of the states and the Federal Courts. This is as 
important now as it has been in the past.

This principle, of judicial interpretation is based upon 
the fundamental concept of separate sovereigns embodied 
in the Constitution of the United States. The Courts have 
announced in clear and specific language the rule and the 
reasons for the rule.

Cases almost without number decided by the Supreme 
Court have recognized and upheld the doctrine, now involved 
which may be illustrated by Spector Motor Company v. Mc­
Laughlin, 323 U. S. 101, decided in 1944. In that case suit 
was brought in a Federal District Court to enjoin the en­
forcement of a tax imposed by the State of Connecticut and 
a declaratory judgment. The Court proceeded to pass upon 
the constitutional questions presented. The statute had not 
been construed by the, Connecticut Court. The following 
language was used by the Supreme Court:

“ It was conceded below that if the Connecticut 
tax was construed to cover petitioner it would run



96a

afoul the Commerce Clause, we,re this Court to ad­
here to what Judge Learned Hand called ‘ an unbro­
ken line of decisions ’. On the basis of what it deemed 
foreshadowing ‘ trends’, the majority ventured the 
px’ophecy that this Court would change its course, and 
accordingly sustain the tax. In view of the far- 
reaching import of such a disposition by the Circuit 
Court of Appeals we brought the case here.”

After referring to questions touching the taxing powers 
of the states and their relation to the Commerce Clause, the 
Court said:

“ We would not be called upon to decide any of 
these questions of constitutionality, with their vary­
ing degrees of difficulty, if, as the District Court held, 
the statute does not at all apply to one, like peti­
tioner, not authorized to do intrastate business. Nor 
do they emerge until all other local Connecticut issues 
are decided against the petitioner. But even if the 
statute hits aspects of an exclusively interstate busi­
ness, it is for Connecticut to decide from what aspect 
of interstate business she seeks an enaction. It is 
for her to say what is the subject matter which she 
has sought to tax and what is the calculus of the tax 
she seeks. Every one of these questions must be, an­
swered before we reach the constitutional issues 
which divided the court below.

“ Answers to all these, questions must precede 
consideration of the Commerce Clause. To none 
have we an authoritative answer. Nor can we give 
one. Only the Supreme Court of Errors of Connecti­
cut can give such an answer. But this tax has not ye,t 
been considered or construed by the Connecticut 
courts. We have no authoritative pronouncements 
to guide us as to its nature and application. That 
the answers are not obvious is evidenced by the dif­
ferent conclusions as to the scope of the statute 
reached by the two lower courts. The Connecticut 
Supreme Court may disagree with the. District Court 
and agree with the Circuit Court of Appeals as to 
the applicability of the statute. But this is an as­
sumption and at best ‘ a forecast rather than a deter­
mination.’ Railroad Commission v. Pullman Co.,



97a

312 U. S. 496, 499. Equally are we without power to 
pass definitively on the, other claims urged under 
Articles I and II of the Connecticut Constitution. If 
any should prevail, our constitutional issues would 
either fall or, in any event, may be formulated in an 
authoritative way very different from any specu­
lative construction of how the Connecticut courts 
would review this law and its application. Watson v. 
Buck, 313 U. S. 387, 401-402.

“ If there is one doctrine more deeply rooted than 
any other in the process of constitutional adjudica­
tion, it is that we ought not to pass on questions of 
constitutionality—here the distribution of the taxing 
power as between the, State and the Nation—unless 
such adjudication is unavoidable. And so, as ques­
tions of federal constitutional power have become 
more and more intertwined with preliminary doubts 
about local law, we have insisted that federal courts 
do not decide questions of constitutionality on the 
basis of preliminary guesses regarding local law. 
Railroad Commission v. Pullman Co., supra; Chicago 
v. Fieldcrest Dairies, 316 U. S. 168; In re Central R. 
Co. of New Jersey, 136 F. 2d 633. See also Burford 
v. Sun Oil Co., 319 U. S. 315; Meredith v. Winter 
Haven, 320 U. S. 228, 235; Green v. Phillips Petro­
leum Co., 119 F. 2d 466; Findley v. Odland, 127 F. 
2d 948; United States v. 150.29 Acres of Land, 135 
F. 2d 878. Avoidance of such guesswork, by holding 
the litigation in the federal courts until definite de­
terminations on local law are made by the state 
courts, merely heeds this time-honored canon of con­
stitutional adjudication.

“ We think this procedure should be followed in 
this case.”

As will be later shown, the foregoing rule has been con­
sistently applied with a negligible number of exceptions.

On this issue of vital importance the majority opinion 
seems based upon a quotation found in a dissenting opinion 
in Bryan v. Austin (E. D. S. C.), 148 Fed. Supp. 563, 567, 
568. The entire text of that portion of the dissenting opin­



98a

ion so relied upon may be found in the footnote 2. The 
underscored portion is that part omitted from the quotation 
incorporated into the majority opinion.2

With due deference to the learned author of that opin­
ion, my examination of the cases cited does not lead me to 
the same conclusion as that stated, nor have I found any 
other pronouncements of the Supreme Court which lead 
me to that conclusion. After an earlier reference to the 
celebrated declaration of Chief Justice Marshall in Cohens

2 “ I recognize, o f course, that, in the application of the rule of 
comity, a federal court should stay action pending action by the 
courts of a state, where it is called upon to enjoin the enforcement 
of a state statute which has not been interpreted by the state courts, 
and where the statute is susceptible of an interpretation which would 
avoid constitutional invalidity. As the federal courts are bound by 
the interpretation placed by the highest court of a state upon a 
statute of that state, they should not enjoin the enforcement of a 
statute as violative of the Constitution in advance of such an interpre­
tation, if it is reasonably possible for the statute to be given an 
interpretation which will render it constitutional. This is all that is 
held by the Supreme Court in such cases as Shipman v. Dupre, 339 
U. S. 321, 70 S. Ct. 640, 94 L. Ed., 877, and A. F. of L. v. Watson, 
327 U. S. 582, 596, 598, 66 S. Ct. 761, 90 L. Ed. 873. The Supreme 
Court in Alabama Public Service Commission v. Southern Railway 
Co., 341 U. S. 341, 344, 71 S. Ct. 762, 95 L. Ed. 1002, recognizes 
that proceedings should be stayed only where there is involved 
‘construction of a state statute so ill-defined that a federal court 
should hold the case pending a definitive construction of that statute 
in the state Courts’ . In the case o f Toomer v. Wit sell, 334 U. S. 
385, 68 S. Ct. 1156, 92 L. Ed. 1460, in which the District Court had 
upheld the constitutionality of a state statute, the Supreme Court 
reversed the decision without staying proceedings for action by the 
state courts. And in Doud v. Hodge, 350 U. S. 485, 76 S. Ct. 491. 
100 L. Ed. 577, the Supreme Court rez’ersed the dismissal of a case 
by a District Court, 127 F. Supp. 853, where the dismissal n>as 
granted on the ground that a statute alleged to be unconstitutional had 
not been passed upon by the courts o f the state. The rule as to 
stay of proceedings pending interpretation of a state statute by the 
courts of the state can have no application to a case, such as we 
have here, where the meaning of the statute is perfectly clear and 
where no interpretation which could possibly be placed upon it by 
the Supreme Court of the state could render it constitutional.”



99a

v. Virginia, 6 Wheat. 264, concerning the usurpation of 
jurisdiction, he concedes that in Shipman v. DuPre, 339 
U. S. 321 and A. F. of L. v. Watson, 327 U. S. 582, 600, the 
Supreme Court held that the Federal Courts are bound by 
interpretation of the statute by the highest court of the 
state and should not enjoin the enforcement of such statute 
as violative of the Constitution in advance of such inter­
pretation. The following language is then used:

“  * * * if it is reasonably possible for the statute 
to be given an interpretation which will render it 
constitutional. This is all that is held by the Supreme 
Court in such cases as * * Shipman and A. F. 
of L.

The learned author then asserts that “ the Supreme 
Court in Alabama Public Service Commission v. Southern 
Railway Co., 341 U. S. 344, * * * recognizes that proceed­
ings should be stayed only where there is involved ‘ construc­
tion of a state statute so ill-defined that a federal court 
should hold the case pending a definite construction of 
that statute in the state cours.’ ”  (Emphasis supplied.)

I find nothing in Shipman referring to the susceptibility 
of the statute to different interpretations.

A. F. of L. v. Watson, contains the following language 
on page 599:

‘ ‘ The doubts concerning the meaning of the 
Florida law indicate that such a procedure is pe­
culiarly appropriate here.”

The procedure referred to was an interpretation of the 
Florida constitutional amendment by the state court be­
fore the Federal Court exercised jurisdiction. The case 
was reversed and remanded, with directions that the bill be 
retained pending determination of the state court proceed­
ings.

I do not read Alabama as supporting the assertion that 
proceedings should be stayed only where an ill-defined 
statute is involved. The only language I find bearing re­



100a

semblance to such a doctrine appears on page 344, as fol­
lows :

‘ ‘ Federal jurisdiction in this case is grounded up­
on diversity of citizenship as well as the allegation 
of a federal question. Exercise of that jurisdiction 
does not involve construction of a state statute so 
ill-defined that a federal court should hold the case 
pending a definitive construction of that statute in 
the state courts, e.g., Railroad Commission of Texas 
v. Pullman Co., 312 U. S., 496 (1941); Shipman v. 
DuPre, 339 U. S., 321 (1950). We also put to one 
side those cases in which the constitutionality of a 
state statute itself is drawn into question, e.g., Too- 
mer v. Witsell, 334 U. S., 385 (1918).”

In that case suit was brought in a Federal Court to en­
join an order of the Alabama Public Service Commission. 
Without prior action by the state court, the Federal Court 
heard the case and rendered judgment. After pointing 
out that state court review was available to the plaintiff, 
the Supreme Court referring to the “ scrupulous regard 
for the rightful independence of state governments which 
should at all times actuate the Federal Courts” , said:

“ Considering that ‘ few public interests have a 
higher claim upon the discretion of a chancellor than 
the avoidance of needless friction with state poli­
cies’, the usual rule of comity must govern the 
exercise of equitable jurisdiction by the District 
Court in this case. Whatever rights appellee may 
have are to be pursued through the state courts.”

In reversing the lower Court, the Supreme Court cited 
with approval Great Lakes Dredge and Dock Co. v. Huff­
man, 319 U. S., 293, 297-298 (1943).

The other cases referred to in the dissenting opinion are 
Toomer v. Witsell, supra, and Doud v. Hodge, 350 U. S., 
485. Toomer, at best, is also negative authority. In that 
case jurisdiction was exercised with no discussion of the 
principle here involved. Doud merely said that the Supreme 
Court has never held that a District Court is without juris­
diction in such cases, although in reversing the District



101a

Court for dismissing for lack of jurisdiction the Supreme 
Court expressly declined to prescribe further procedure on 
remand. It is obvious that the Supreme Court intended 
that the approved procedure of obtaining construction by 
the state court was to be followed:

From what has been said all that I can read into the 
cases cited as authority for the affirmative assertion that 
proceedings should be stayed until state court action only 
where an ill-defined statute is involved, is at the most of a 
negative character and limited to an insignificant number of 
cases.

The majority adopts that portion of the dissenting 
opinion in Bryan v. Austin, and proclaims as a policy of 
judicial interpretation that a stay of proceedings in the 
Federal Courts is not required in cases in which the state 
statutes at issue are free of doubt or ambiguity. It is 
respectfully submitted that the pronouncement of such a 
doctrine is not warranted by the authorities cited. It is 
true that in some few cases the Supreme Court has not re­
quired such prior interpretation but this fact falls far short 
of establishing a rule of procedure under which proceedings 
in a Federal Court in a case such as this should be stayed 
only where the statute involved is so ill-defined that its 
constitutionality is doubtful until it is construed judicially.

Even should the rule so announced be the correct one, 
it would have no application in this ease, as a reasonably 
careful examination of the statutes will disclose the neces­
sity for interpretation, as later pointed out.

The rule laid down by the Supreme Court and consis­
tently followed is that cited in Spector v. McLaughlin, supra. 
The majority opinion has cited Spector Motor Company and 
Government Employees v. Windsor, 347 U. S., 901 and 353 
U. S., 364; Shipman v. DuPre, supra; A. F. of L. v. Watson, 
supra. This Court is bound to follow, distinguish or dis­
regard those cases and others to be cited. It has no power 
to reverse.

The language of the majority discloses that my learned 
associates have followed the example of the majority of the



102a

Court of the Second Circuit in Spector. To again quote 
the Supreme Court in that case on p a ge  103 :

“ On the basis of what it deemed foreshadowing 
‘ trends’, the majority ventured the prophecy that 
this Court would change its course, and accordingly 
sustained the tax. In view of the far-reaching im­
port of such a disposition by the Circuit Court of 
Appeals we brought the case here.”

As has been seen, after emphasizing the “ deeply rooted”  
doctrine which it termed “ this time-honored canon of con­
stitutional adjudication” , the Supreme Court reversed the 
Circuit Court and remanded the case to await interpreta­
tion by the state court.

The decisions of the Supreme Court proclaiming and re­
peating this principle called the “ doctrine of abstention”  
in Railroad Commission v. Pullman Company, 312 U. S., 
496, at 501, are so numerous and contain such apt expres­
sions that determining which should be cited and discussed 
presents a problem. An exhaustive analysis of all would 
result in a repetitious and unduly long discussion.

Railroad v. Pullman, supra, appears a good starting 
point. In that case a three-judge District Court enjoined 
an order of the Texas Railroad Commission. On appeal 
the Court referred to the fact that the Court consisted of 
an able and experienced judge of the circuit which includes 
Texas and of two capable district judges trained in Texas 
law. Then the Court said:

“ Had we or they no choice in the matter but to 
decide what is the law of the state, we should hesi­
tate long before rejecting their forecast of Texas law. 
But no matter how seasoned the judgment of the 
district court may be, it cannot escape being a fore­
cast rather than a determination. The last word on 
the meaning of Article 6445 of the Texas Civil Stat­
utes, and therefore the last word on the statutory 
authority of the Railroad Commission in this case 
belongs neither to us nor to the district court but to 
the Supreme Court of Texas. In this situtaion a



103a

federal court of equity is asked to decide au issue by 
making a tentative answer which may be displaced 
tomorrow by a state adjudication.”

Could the Court have expressed itself in clearer terms I
Referring to earlier cases the Court continued:

‘ ‘ These cases reflect a doctrine of abstention ap­
propriate to our federal system whereby the federal 
courts ‘ exercising a wise discretion’, restrain their au­
thority because of ‘ scrupulous regard for the rightful 
independence of the state governments’ and for the 
smooth working of the federal judiciary (citing 
cases). This use of equitable powers is a contribu­
tion of the courts in furthering the harmonious rela­
tion between state and federal authority without the 
need of rigorous congressional restriction of those 
powers. ’ ’

The District Court was reversed and the case remanded 
with directions to retain the bill pending a determination 
of proceedings in the state court.

What change has come about since 1941 to justify a 
court in disregarding this clearly stated doctrine?

I find no expression from the Supreme Court changing 
this rule during the intervening years. On the contrary, as 
late as May 1947 the Court delivered its opinion in Govern­
ment Employees v. Windsor, 353 U. S. 364. The pro­
cedural facts of that case are illuminating and significant. 
A  labor organization and one of its members filed suit 
against officials of Alabama Alcoholic Beverage Control 
Board, of which the individual member was an employee. 
Plaintiffs sought an injunction and declaratory judgment 
to restrain the enforcement of a statute of Alabama. A 
three-judge court was convened. Plaintiffs contended that 
the statute was susceptible to no possible construction 
other than that of unconstitutionality and that the Federal 
Court should decline to stay proceedings pending action in 
the state court. Loss of members by the union and loss of 
employment benefits by the members were alleged. As here, 
no state action was pending. Toomer v. Witsell, supra,



104a

appears to have been the authority relied upon by plain­
tiffs. The Court, after citing and discussing cases referred 
to by me, declined to exercise jurisdiction pending an ex­
haustion of state administrative and judicial remedies. 
116 Fed. Supp. 354. The Supreme Court affirmed, 347 
U. S. 901. Thereafter suit was filed in an Alabama Court, 
which declared the statute applicable to the complainant, 
its activities and its members and the injunction was denied. 
On appeal the final decree of that Court was affirmed by 
the Supreme Court of Alabama. 262 Alabama 785, 78 Sou. 
(2d) 646. The case was again submitted to the District 
Court. 146 Fed. Supp. 214. That Court said on p a ge  216 :

“ After a thorough reading and consideration of 
the final decree of the Circuit Court of Montgomery 
County in Equity and of the opinion of the Supreme 
Court of Alabama heretofore mentioned, it is clear 
to us that the Alabama courts have not construed the 
Solomon Bill in such a manner as to render it uncon­
stitutional, and, of course, we can not assume that the 
state court will ever so construe said statute.”

Judgment was entered accordingly.
Upon appeal the Supreme Court in a per curiam opinion 

(353 U. S. 364), after observing that “ none of the constitu­
tional contentions presented in the action pending in the 
United States Distinct Court were advanced in the state 
court action,”  said:

‘ ‘ We do not reach the constitutional issues. In an 
action brought to restrain the enforcement of a state 
statute on constitutional grounds, the federal court 
should retain jurisdiction until a definitive determi­
nation of local law questions is obtained from the 
local courts. One policy served by that practice is 
that of not passing on constitutional questions in sit­
uations were an authoritative interpretation of state 
law may avoid the constitutional issues. Spector 
Motor Co. v. McLaughlin, 323 U. S. 101,105. Another 
policy served by that practice is the avoidance of the 
adjudication of abstract, hypothetical issues. Federal 
courts will not pass upon constitutional contentions 
presented in an abstract rather than in a concrete



105a

form. Rescue Army v. Municipal Court, 331 U. S. 
549, 575, 584. The bare adjudication by the Alabama 
Supreme Court that the union is subject to this Act 
does not suffice, since that court was not asked to 
interpret the statute in light of the constitutional 
objections presented to the District Court. If appel­
lants’ freedom-of-expression and equal-protection 
arguments had been presented to the state court, it 
might have been construed the statute in a different 
manner. Accordingly, the judgment of the District 
Court is vacated, and this cause is remanded to it 
with directions to retain jurisdiction until efforts to 
obtain an appropriate adjudication in the state courts 
have been exhausted. ’ ’

It is worth noting that in June 1957 a three-judge United 
States District Court sitting in the Eastern District of 
North Carolina in Lassiter v. Taylor, 152 F. Supp., 295, 
had before it a case attacking the constitutionality of a 
statute of the state prescribing a literacy test for voters. 
The Court said:

‘ ‘ The only question in the case is whether the Act 
of March 29, 1957, should be declared void and its 
enforcement against plaintiffs enjoined by the court 
on the ground that it is violative of their rights under 
the Federal Constitution.”

The Court then proceeded on page 298:

“ Before we take any action with respect to the 
Act of March 27, (sic) 1957, however, we think that 
it should be interpreted by the Supreme Court of 
North Carolina in the light of the provisions of the 
State Constitution. Government and Civic Employ­
ees Organizing Committee, etc. v. S. F. Windsor, 77 
S. Ct. 838.”  (353 U. S. 364)

The opinion was per curiam but significantly the dis­
tinguished jurist who wrote the dissenting opinion in Bryan 
v. Austin, supra, and who sat on the Court in Baskin v. 
Broivn, was a member of that Court. It should be recalled 
at this point that Government Employees v. Windsor was 
decided the previous month.



106a

Inferentially at least, it would appear that the author 
of the dissenting opinion upon which the majority rests its 
decision has revised his views since that opinion was filed 
and has accepted the views reflected in the earlier cases of 
Doby v. Brown, infra, and Hood v. Board of Trustees, infra, 
and the later cases of Government Employees v. Windsor, 
supra, and Lassiter v. Taylor, supra. Attention is called 
to Hudson v. American Oil Company (E. D. Va.), now be­
fore the Court of Appeals for the Fourth Circuit, in which 
decision has been deferred pending a pronouncement by the 
Supreme Court of Appeals of Virginia of a question involv­
ing an easement in connection with which the state court 
has not yet announced the policy of the state.

The concurring opinion of Mr. Justice Frankfurter in 
Great Lakes v. Huffman, supra, contains an informative 
review of the legislative history of the statutes opening the 
inferior Federal Courts to claims arising under state stat­
utes founded on rights under the Constitution and laws of 
the United States. Prior to 1875 such claims were pursued 
in the state courts exclusively and brought to the Supreme 
Court for review of the Federal question. Upon numerous 
occasions since 1875, Congress has placed restrictions 
around interference with state actions by the lower Federal 
Courts and in 1910 an act was passed placing jurisdiction 
to restrain action of state officials in a District Court con­
sisting of three judges, with the right of appeal directly 
to the Supreme Court. Not satisfied with this safeguard, 
additional limitations have been placed upon inferior courts 
where the action involves matters affecting state laws. In 
addition to that discussion, attention is called to the action 
of Congress as late as 1948, when it enacted Title 28, Sec­
tion 2254, United States Code, spelling out in detail a pro­
hibition against Federal action on applications for writs of 
habeas corpus affecting petitioners in custody pursuant to 
judgment of state courts until remedies available in courts 
of the state have been exhausted.

In 1938, the Supreme Court decided the landmark case 
of Erie v. Thompkins, 304 U. S. 64, in which it recognized



107a

that there had been an invasion of rights reserved by the 
Constitution to the states and proceeded to correct the 
error. The case is not in point here except as casting light 
on the recognition by the Supreme Court of the limited 
jurisdiction of Federal Courts and it emphasizes the “ deli­
cate balance”  so often mentioned. The discussion of Mr. 
Justice Frankfurter in Alabama v. Southern, supra, is also 
illuminating. As will be seen from that opinion he inter­
preted the majority opinion there as laying down a fixed 
rule that in all such eases action by the state court is a pre­
requisite to interference by the Federal Court. If his inter­
pretation of Alabama is correct, and it has been followed 
rather consistently, there is no occasion for further con­
gressional action upon this point as suggested by the major­
ity of this Court. This demonstrates the fallacy of the 
somewhat disturbing assumption of the majority opinion 
that unless jurisdiction has been restricted by Congress or 
the Supreme Court, the inferior United States courts are 
free to assume unlimited jurisdiction.

In Douglas v. Jeannette, 319 U. S. 157, and a number of 
similar eases, a somewhat stricter rule against jurisdiction 
of the Federal Courts appears to have been recognized as 
applicable to statutes imposing criminal sanctions such as 
are here involved. However, I prefer to rest my conclu­
sions upon the broad, general rule announced in the case 
before cited and discussed without limiting consideration 
of the question to a special type of litigation. The under­
lying principle is the same whether the case involves a civil 
suit for the collection of a tax or the enforcement of a stat­
ute denouncing specified conduct as a crime. Both involve 
the police power and both involve the delicate balance which 
prevails between sovereign powers.

The cases last cited and quoted from should be sufficient 
to show with certainty the proper course to be followed by 
this Court. However, those cases by no means include all 
in point and, as earlier indicated, the problem here is to 
limit this discussion to avoid becoming burdensome with a 
discussion of cumulative authority. Some of the cases in



108a

which the doctrine is announced with equal emphasis and 
apt language are listed in the footnote.3 An examination 
of these cases discloses that upon numerous occasions the 
lower courts have undertaken to pass upon the constitu­
tional validity of state statutes only to be reversed by the 
Supreme Court without consideration by it of the consti­
tutional question, with directions that the lower court await 
an interpretation of the statutes by the courts of the state 
affected, e.g. Railroad v. Pullman; Great Lakes v. Huffman; 
Alabama v. Southern; Government Employees v. Windsor. 
There are many other cases which might be cited and dis­
cussed. These cases which have announced the law clearly, 
are not being followed by the majority. They have not 
been distinguished and only a negligible number have been 
cited. The majority have elected to base their decision 
upon authority for which the most that can be said is that

3 Matthews v. Rogers, 284 U. S. 521, 525-526 (1932); Great 
Lakes v. Huffman, 319 U. S. 293 , 296-301 (1943); Meredith v. 
Winter Haven, 320 U. S. 228, 232 (1943); Federation o f Labor 
v. McAdory, 325 U. S. 450 (1945) ; A. F. of L. v. Watson, 327 
U. S. 582, 600 (1946); Rescue Army v. Municipal Court, 331 U. S. 
549 (1947); Shipman v. DuPre, 339 U. S. 321 (1950); Stcfanelli 
v. Minard, 342 U. S. 117, 120-123 (1951); Albertson v. Millard, 
345 U. S. 242 (1953); Doud v. Hodge, 350 U. S. 485 (1956); 
Beasley v. Texas & Pacific, 191 U. S. 492; Cavanaugh v. Looney, 
248 U. S. 453, 457; Fenner v. Boykin, 271 U. S. 240; Gilchrist v. 
Interborough, 279 U. S. 159; Hawks v. Hamill, 288 U. S. 52, 61; 
Harrisonville v. Dickey Clay Co., 289 U. S. 334; U. S. v. Dern, 
289 U. S. 352; Glenn v. Field Packing Co., 290 U. S. 177; Lee v. 
Bickell, 292 U. S. 415; Penn. v. Williams, 294 U. S. 176; Spielman 
Motor Co. v. Dodge, 295 U. S. 89; Di Giovanni v. Camden, 296 
U. S. 64, 73; Beal v. Missouri, 312 U. S. 45; City of Chicago v. 
Fieldcrest Dairies, 316 U. S. 168; Burford v. Sun Oil Co.. 319 
U. S. 315; Eccles v. Peoples, 333 U. S. 426, 431.

Among cases from lower courts peculiarly applicable are: Lassiter 
v. Taylor, 152 Fed. Supp. 295, 298; Doby v. Brown, 232 Fed. (2d) 
504; Hood v. Board of Trustees, 232 Fed. (2d) 626.

For further collection of authorities see: Tribune Reziew Publish­
ing Co. v. Thomas, 120 Fed. Supp. 362. 372, and discussion iti 
Meredith v. Winter Haven, supra.



109a

it is of a negative character and upon a “ prophecy of fore­
shadowing ‘ trends’. ”  This method of judicial interpreta­
tion based upon prophecy was commented upon and rejected 
by the Supreme Court in Spector.

The Construction of the Statutes

This brings us to a consideration of the questioned stat­
utes.

As far as pertinent here, Chapters 31 and 32 deal with 
the authority of the state in the exercise of the police power 
to pass laws regulating the conduct of corporations operat­
ing within the state. Regulatory statutes of this nature 
are fully recognized and any number might be called to 
mind. Bryant v. Zimmerman, 278 U. S. 63, appears to 
be the leading case applicable here. There was involved a 
statute requiring the disclosure of names of members of 
certain organizations. Petitioner was a member of the 
Ku Klux Klan, an organization to which the statute was 
applicable. For failing to comply with the provisions of 
the statute petitioner was held in custody by the state 
authorities. Upon denial of a writ of habeas corpus by 
the state court he appealed to the Supreme Court of the 
United States. Justice McReynolds was of opinion the 
case should be dismissed for lack of jurisdiction without 
any consideration of the merits. The majority of the 
Court held that the case was of such nature that it had 
jurisdiction, but recognized the power of the state to 
enforce the statute saying that the rights of petitioner 
must yield to the rightful exertion of the police power. 
The petition was denied.

It has been suggested that the statute was sustained 
because of the nature of the activities of the Ku Klux 
Klan. It is true that the Court referred to such activities 
when discussing the exception of certain other organiza­
tions from the operation of the statute but I do not under­
stand the language of the Court as holding that this was 
a decisive factor.



110a

Another significant case is Thomas v. Collins, 323 U. S. 
516. That case involved a Texas statute which required 
paid labor organizers to register with the Secretary of 
State and obtain an organizer’s card before soliciting 
members within the state. An injunction was issued re­
straining the petitioner from violating the statute. Subse­
quently he was held guilty of contempt for violating the 
order. Habeas corpus was denied by the Supreme Court 
of Texas. On appeal, the Supreme Court of the United 
States reversed the judgment of conviction. However, 
at page 540 the Court said:

“ We think a requirement that one must register 
before he undertakes to make a public speech to 
enlist support for a lawful movement is quite in­
compatible with the requirements of the First 
Amendment.

“  Once the speaker goes further, however, and 
engages in conduct which amounts to more than the 
light of free discussion comprehends, as when he 
undertakes the collection of funds or securing sub­
scriptions, he enters a realm where a reasonable 
registration or identification requirement may be 
imposed. In that context such solicitation would be 
quite different from the solicitation involved here. 
It would be free speech plus conduct akin to the 
activities which were present, and which it was said 
the state might regulate in Schneider v. State, supra, 
and Cantwell v. Connecticut, supra. That, however, 
must be done, and the restriction applied, in such 
a manner as not to intrude upon the rights of free 
speech and free assembly. In this case the separa­
tion was not maintained.”  (Emphasis supplied.)

See also the concurring opinion of Mr. Justice Jackson. 
Cf. Douglas v. Jeannette, supra.

In a dissenting opinion, concurred in by Chief Justice 
Stone and Justice Frankfurter, beginning at page 548, 
Justice Roberts said:

< ‘ The right to express thoughts freely and to dis­
seminate ideas fully is secured by the Constitution



111a

as basic to the conception of our Government. A 
long series of caseshas applied these fundamental 
rights in a great variety of circumstances. Not until 
today, however, has it been questioned that there 
was any clash between this right to think one’s 
thoughts and to express them and the right of people 
to be protected in their dealings with those who 
hold themselves out in some professional capacity 
by requiring registration of those who profess to 
pursue such callings.”

While the statutes impose the duty to register and 
furnish information concerning names of persons engaged 
in the solicitation of and contribution to funds for certain 
purposes, it does not prohibit the solicitation or expendi­
tures of funds provided registration is had and the re­
quired information filed. We are not called upon at this 
time to determine whether the statutes are constitutional 
or unconstitutional. That is for the state court. Should 
it be proper to follow the reasoning of the majority the 
Court would be called upon to determine whether they 
are so plainly unconstitutional that by no interpretation 
could they be held constitutional. I have found no case 
under which it can be said they are so plainly in violation 
of the Constitution that by no interpretation can they be 
held otherwise.

The remaining statutes, Chapters 33, 35 and 36, dealing 
with the practice of law, are based in part upon the canons 
of ethics recognized by the American Bar Association, and 
in part are declaratory of common law offenses.

The statutes are lengthy and the language employed is 
involved. A consideration of key words found with rela­
tion to other general language is necessary to determine 
the meaning.

Chapter 33, as applied to attorneys, revolves around 
the phrase “ improper solicitation” . As applied to a 
“ runner”  or “ capper”  the act denounced is acting as an 
agent for an attorney, etc.



112a

Chapter 35 denounces as an offense the instigating or 
attempting to instigate a person or persons to institute 
a suit. The statutory definition of “ instigating”  is some­
what ambiguous and will require a judicial interpretation.

In Chapter 36 the significant language to be construed 
relates to inducing one to act and the giving of advice by 
one whose professional advice has not been sought in 
accordance with the canons of legal ethics.

It clearly appears that the language employed must be 
construed as applied to the facts involved. Upon such 
construction will depend the decision of whether the 
statutes apply to the activities of the plaintiffs and the 
members of the bar employed by them.

It is difficult to understand how the majority reached 
its conclusion that Chapters 31, 32 and 35 are clearly in 
violation o f the Constitution but Chapters 33 and 36 will 
require an interpretation. If this Court determines that 
it should hold Chapters 31, 32 and 35 invalid, why should 
it not declare Chapters 33 and 36 valid instead of referring 
them to the state court for interpretation?

At the hearing certain officers of the plaintiff corpora­
tions testified. Upon that testimony the majority has in­
corporated in its opinion a statement of the activities of 
the corporations with relation to the institution of litigation 
to which they are not parties. Assuming that statement 
to be correct it is questionable that Chapters 33, 35 or 36 
would be applicable to those engaged in such activities. I 
express no opinion upon this beyond observing that obvi­
ously a question would be involved. Certain it is that in 
reaching an answer to that question it will be necessary 
that the meaning of the statutes be construed.

Plaintiffs complain that the statutes are directed at 
them. Whether this be true or not is immaterial. The 
evidence shows there are other organizations engaged in 
counter activities in Virginia. However, this facts merits 
only passing reference. As pointed out in Bryant v. 
Zimmerman, supra, the constitutional validity of a statute



113a

is not affected by the failure of the Legislature to pass laws 
covering all cases it might reach or covering the whole 
field of possible abuse.

I expressly refrain from expressing an opinion concern­
ing the constitutional validity of the statutes. As applied 
by the courts they might be held valid, they might be 
found invalid or they might be held valid in part and invalid 
in part. The point here is that they should be construed 
by the courts of the State in which their enforcement will 
take place. Then and only then can the Federal courts 
properly inquire as to their invasion of rights guaranteed 
by the Constitution of the United States. To do otherwise 
would be both to dismiss the obviously questionable lan­
guage used in places in the statutes and to disregard firmly 
established principles of construction long accepted hy 
the Federal Courts as applicable in like situations. In 
this case the Court should observe the “ Doctrine of Ab­
stention”  referred to by the District Court in Government 
Employees v. Windsor, 116 Fed. Supp. 354, at page 358. 
To do otherwise is to disregard established principles and 
to undertake to chart a new course of judicial construction 
with the hope of successfully prophesying “ foreshadowing 
trends”  of judicial action. Failure of the lower court to 
respect the doctrine of stare decisis leads to confusion. 
Failure to do so in this case disturbs the balance between 
state and Federal jurisdiction.

Conclusions

1. (a) The Federal Court has jurisdiction under the 
Diversity Statute.

(b) The plaintiffs being corporations are not entitled 
to the privileges and immunities of natural persons secured 
by the Fourteenth Amendment.

2. This Court may not inquire into the motives of the 
members of the General Assembly actuating them in pass­



114a

ing tlie statutes but may consider legislative history when 
determining the meaning of statutes being construed.

3. While it is my view that the suits are premature, 
the fact that jurisdiction exists under the Diversity Statute 
coupled with the language of the Supreme Court in Doud 
v. Hodge, and some of the other cases considered, the 
proper course is to retain the case on the docket of this 
Court and continue them generally until the Acts have 
been given a definitive construction by the Courts of 
Virginia before the Federal Court undertakes to test 
their validity measured by the Federal Constitution.

/ s /  Sterling H utcheson, 
United States District Judge.



(7707)

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