Turner v. City of Memphis Brief for Appellant

    I n

Qlflurt of %nxUh States
OcTOBEE Teem, 1961 

No. 84

J esse T uenee,

V.

City of Memphis, et al.,

Appellant,

Appellees.

APPEAL FEOM THE UNITED STATES DISTEICT COUET 
WESTEEN DISTEICT, TENNESSEE, WESTEEN DIVISION

BRIEF FOR APPELLANT

J ambs M. N abeit, I II  
D eeeick a . B ell 
Michael Meltsnek

of Counsel

Constance B akee Motley 
10 Columbus Circle 
New York 19, New York

J ack Gebenbeeg
10 Columbus Circle 
New York 19, New York

B. B. SUGAEMON
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Appellant.



TABLE OF CONTENTS

PAGE

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

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

Constitutional Provisions, Statutes, Ordinances and 
Eegulations Involved.....................................................  2

Question Presented ...........................................................  4

Statement of the Case .....................................................  5

Summary of A rgum ent.....................................................  10

A rgument

I. Appellees’ Policy of Racial Segregation in the 
Municipal Airport Restaurant Constituted 
State Action of a Nature So Clearly Prohibited 
by the Fourteenth Amendment That the Court 
Below Plainly Erred in Denying the Requested 
Injunction ..............................................................  12

II. The Court Below Erred in Applying the Doc­
trine of Abstention to the Facts of This Case 14

III. This Action Is One Required by Title 28 U. S. C., 
Section 2281 to Be Heard by a District Court 
of Three Judges and This Court Has Juris­
diction of This Direct Appeal Under Title 28 
U. S. C., Section 1253 .........................................  19

Conclusion ....................................................................................  29



n

T able of Cases

PAGE

Alabama Public Service Commission v. Southern Eail- 
road Co., 341 U. S. 341.................................................  18

Board of Supervisors v. Wilson, 340 U. S. 909, affirming
92 F. Supp. 986 (E. D. La. 1950) ..............................  13

Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th
Cir. 1960) ........................................................................  12

Browder v. Gayle, 142 F. Supp. 707 (1956) (D. C. Ala.),
aff’d per curiam, 352 II. S. 903 .............................. .......  20

Brown v. Board of Education of Topeka, 347 U. S.
483 (1954) ................................................................ 16, 21, 22

Bryan v. Austin, 354 U. S. 933 ..................................11, 25, 28
Burford v. Sun Oil Co., 319 V. S. 315 ..........................  18
Burton v. Wilmington Parking Authority, 365 U. S.

715 ......................  10,12,16,21
Bush V. Orleans Parish School Board, 138 F. Supp.

336 (E. D. La. 1956) mandamus den. 351 U. S. 948, 
aff’d 242 F. 2d 156 (5th Cir. 1956) cert. den. 354 U. S.
921 ....................................................................................  22

Clay V. Sun Insurance Co., 363 U. S. 207 ......................  17
Clemons v. Board of Education, 228 F. 2d 853 (6th Cir.

1956), cert. den. 350 U. S. 853 ........................................  13
Cleveland v. United States, 323 U. S. 329 (1945) ........... 20
Coke V. Atlanta, 184 F. Supp. 579 (N. D. Ga. 1960) ....... 13
Cooper V. Aaron, 358 U. S. 1 (1958) .................................  16
County of Allegheny v. Frank Mashuda Co., 360 U. S.

185 .................................................................................. 17,18

Davis V. County School Board, 142 F. Supp. 616 (D. C.
Va. 1956) ........................................................................  22

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert, den., Casey v. Plummer, 353 U. S. 922 ............... 13



Ill
PAGE

Enelow v. New York Life Insurance Co., 293 U. S. 379
11,26, 27

Ettleson v. Metropolitan L. Ins. Co., 317 U. S. 188 —.11, 26,
27, 28

Evers v. Dwyer, 358 IJ. S. 202 .........................................  8
Ex Parte Poresky, 290 U. S. 3 0 .....................................  22

Florida Lime and Avocado Growers v. Jacobsen, 362 
U. S. 7 3 .................................................................... 11,19, 20

Glen Oaks Utilities, Inc. v. City of Houston, 280 P. 2d
330 (5tb Cir. 1960) ................................................. 11, 26, 27

Gov’t Civic Employees Organization Com. v. Wind­
sor, 347 U. S. 901, aff’g 116 P. Supp. 354 (N. D. Ala. 
1953) (Order reprinted at 146 P. Supp. 214) —11, 25, 28 

Gray v. Board of Trustees of the University of Ten­
nessee, 100 F. Supp. 113 (E. D. Tenn. 1951) dis­
missed as moot, 342 U. S. 517.....................................  22

Great Lakes Dredge and Dock Co. v. Huffman, 319 
U. S. 293 ........................................................................  18

Harrison v. NAACP, 360 U. S. 167..........................9,10,19
Henry v. Greenville Airport Commission, 284 P. 2d 

631 (4th Cir. 1960) .....................................................10,13

La Buy v. Howes Leather Co., 352 U. S. 249 ...............11,27
Lambert Run Coal Co. v. Baltimore & 0. R. Co., 258

U. S. 377 ........................................................................  22
Louisiana Power & Light Co. v. Thibodaux, 360 U. S.

25, 26 .................................................................11,17,18,27

McLaurin v. Oklahoma State Regents, 337 U. S. 637 —. 19 
Martin v. Creasy, 360 U. S. 219..................................... 17,18



IV

PAGE

Muir V. Louisville Park Theatrical Association, 347 
U. S. 971, vacating and remanding, 207 F. 2d 275 
(6th Cir. 1953) ................................. ...............................  16

NAACP V. Bennett, 360 U. S. 471 .......................... 11, 25, 28

Pennsylvania v. Williams, 294 U. S. 179 ......................  18
Phillips V. United States, 312 U. S. 246 ...................... 20, 23

E. E. Comm, of Texas v. Pullman Co., 312 U. S. 496 .... 17

Spielman Motor Sales v. Dodge, 295 U. S. 89 (1935) .... 20 
State V. Lasater, 68 Tenn. 584 (1877) ..........................  17

Toomer v. Witsell, 334 U. S. 385 ...................................... 18

Union Tool Co. v. Wilson, 259 U. S. 107...................... 10,13

U nited S tates S tatutes

Annotation: Three Judge Court, 4 L. ed. 2d 1931, 1958, 
Note 1 ............................................................................  22

18 Stat. at L. 335 .....................................................  17

28 U. S. C. Sec. 1253 ................................1,10,11,19, 24, 28

28 U. S. C. Sec. 1343(3) .....................................................  5

28 U. S. C.

Sec. 2281 ............................................................. 19,20,23
Sec. 2282 ....................................................................  28

Sec. 2284 ....................................................... 21,22,23,25



V

PAGE
State S tatutes an d  E egulations 

Tenn. Code Ann.

Vol. 9, §53-2120 ................................................. 2, 6,14,15

Vol. 9, §53-2121....................................................... 2, 6,14

Vol. 11, §62-710....................................................... 3,8,19

Tenn. Dept, of Conservation, Division of Hotel and 
Eestaurant Inspection (Approved June 18,1952 filed 
in Office of Secretary of State)

Eegulation No. E-1 ............................................... 3,15

Eegulation No. E-18 (L) ...................... 3,6,15,16,19



I n  t h e

Court of tijr Hmtrfi t̂atro
OcTOBEB T eem, 1961 

No. 84

J esse Tuenee,

V.

City o f  Memphis, et al.,

Appellant,

Appellees.

APPEAL FROM THE HNITED STATES DISTEICT COHET 
WESTERN DISTEICT, TENNESSEE, WESTERN DIVISION

BRIEF FOR APPELLANT

Opinions Below

The per curiam opinion below is unreported but appears 
at pages A1-A3 of the Jurisdictional Statement.

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
the provisions of Title 28, United States Code, Section 
1253, providing for direct appeals in cases required by 
Congress to be heard and determined by three judges. The 
order appealed from was entered below on February 10, 
1961. Notice of appeal was filed in the District Court on 
March 1, 1961. The appeal docketed here on May 1, 1961. 
On October 9, 1961, this Court entered an order postponing 
consideration of the question of jurisdiction to the hearing 
on the merits and transferred case to summary calendar.



Constitutional Provisions, Statutes, 
Ordinances and Regulations Involved

This case involves the following provisions of the Ten­
nessee Code relating to the Division of Hotel and Restau­
rant Inspection, Department of Conservation of the State 
of Tennessee:

§53-2121—Rules and regulations authorized—Arbitra­
tion of inconsistencies.—The division is hereby author­
ized to make such rules and regulations, including a 
code of sanitation, as may be necessary to carry out 
the purpose of §§53-2101—53-2121 and to protect the 
public health and safety. In any instances where there 
is an inconsistency as between the requirements of 
the division and those of a local county, or city, health 
officer, such inconsistency is to be arbitrated by a 
three (3) man board consisting of the director, the 
local health officer concerned, and a third member to 
be chosen by these two. (Tenn. Code Ann. Vol. 9.) ^

§53-2120—Violation of regulations or provisions penal­
ized.—Every owner, manager, proprietor, agent, les­
see, or other person in charge of conducting any hotel 
or restaurant, who shall fail or refuse to comply with 
any of the provisions of §§53-2101—53-2121 or with 
the rules and regulations promulgated by the division, 
shall be deemed guilty of a misdemeanor, and shall be

' This section was amended, effective February 18, 1961, to read 
as follows:

“Rules and regulations authorized—The division is hereby 
authorized to make such rules and regulations as may be neces­
sary pertaining to the safety and/or sanitation of hotels and 
restaurants in order to carry out the provisions of this chap­
ter.”

This amendment became effective after entry of the order of 
the court below.



fined not less than ten dollars ($10.00) nor more than 
one hundred dollars ($100) for each offense, and each 
day after sufficient notice has been given shall con­
stitute a separate offense. (Tenn. Code Ann. Vol. 9.)

Involved also is Eegulation No. E-18(L), promulgated 
by the Division, which provides:

Eestaurants catering to both white and negro patrons 
should he arranged so that each race is properly 
segregated. Segregation will he considered proper 
where each race shall have separate entrances and 
separate facilities of every kind necessary to prevent 
patrons of the different races coming in contact with 
the other in entering, being served, or at any other 
time until they leave the premises. (Tennessee Laws, 
Eules and Eegulations for Eestaurants, Department 
of Conservation, Division of Hotel and Eestaurant In­
spection. Approved June 18, 1952, filed in Office of 
Secretary of State.) (Emphasis added.)^

This case also involves another provision of the Ten­
nessee Code:

§62-710—Eight of owners to exclude persons from 
places of public accommodation.—The rule of the com­
mon law giving a right of action to any person ex­
cluded from any hotel, or public means of transporta­
tion, or place of amusement, is abrogated; and no 
keeper of any hotel, or public house, or carrier of

’■ Regulation R-1 provides as follows:
“Definition of Terms. * # *

(d) The term ‘shall’ as used in these regulations is manda­
tory.

(e) The term ‘should’ as used in these regulations indicates 
desirability.



passengers for Mre (except railways, street, inter- 
urban, and commercial) or conductors, drivers, or em­
ployees of such carrier or keeper, shall he bound, or 
under any obligation to entertain, carry, or admit any 
person whom he shall, for any reason whatever, choose 
not to entertain, carry, or admit to his house, hotel, 
vehicle, or means of transportation, or place of amuse­
ment; nor shall any right exist in favor of any such 
person so refused admission; the right of such keepers 
of hotels and public houses, carriers of passengers, 
and keepers of places of amusement and their em­
ployees to control the access and admission or ex­
clusion of persons to or from their public houses, 
means of transportation, and places of amusement, to 
be as complete as that of any private person over his 
private house, vehicle, or private theater, or places of 
amusement for his family. (Tenn. Code Ann. Vol. 11.)

The answer of appellee City of Memphis relied upon 
city ordinances as the basis for requiring segregation in 
restroom facilities in the airport. All parties agree that 
segregation is no longer enforced with respect to such 
facilities. However, the ordinances on which the City 
relied are set forth in the Jurisdictional Statement, Ap­
pendix B.

Question Presented

Whether the three-judge court below, in a case involving 
segregation of Negroes by the lessee of a municipally- 
owned airport restaurant, erroneously refused to issue a 
permanent injunction enjoining such segregation and in­
correctly failed to exercise its jurisdiction, instead requiring 
appellant to file suit for declaratory judgment in the state



courts for interpretation of statutes, regulations and 
ordinances pleaded by appellees.

Statement of the Case

This suit for permanent injunction was instituted on 
April 1, 1960, by the appellant, Jesse Turner, who is an 
adult Negro citizen of the United States and of the State 
of Tennessee, residing in Memphis, Tenn. Appellant is 
the executive vice-president and cashier of the Tri-State 
Bank and a member of the Shelby County Democratic 
Executive Committee. He uses the Memphis Municipal 
Airport three or four times per year in connection with 
his business and public office (R. 3, 56-57). Appellant sought 
service in the main dining room of Dobbs Houses restau­
rant in the Memphis airport on April 28, 1959, and again 
on October 29, 1959. On each occasion he was denied 
service in the main dining room, solely on account of his 
race and color, by the hostess, but directed to a small room 
reserved for Negroes. Each time appellant asked to see 
the manager who advised him that Negroes were served 
in a separate, small room off to the side. Appellant de­
clined these offers to be served on a racially segregated 
basis and left the restaurant (R. 23-24, 57).

Jurisdiction of the court below was invoked pursuant 
to the provisions of Title 28, United States Code, §1343(3). 
The complaint did not rely upon or seek to enjoin the 
enforcement of any specified state statute, state regula­
tion or city ordinance. The complaint alleges, inter alia, 
that defendants, acting under color of the laws of Ten­
nessee and ordinances of the City of Memphis, have 
adopted and presently pursue a policy, practice, custom 
and usage of segregating Negroes and white persons in 
the airport restaurant and restroom facilities (R. 3-4). 
The complaint sought to enjoin the city of Memphis and



the defendant, Dobbs Houses, Inc., the lessee of the city’s 
airport restanrant (R. 2-3), from “making any distinctions 
based on race or color” in public facilities at the airport, 
including the restanrant (R. 4).

On April 21, 1961, all appellees filed answers in which 
they admitted public ownership of the airport, the segrega­
tion complained of, and the leasing of the restaurant to 
Dobbs Houses, Inc. (R. 5-21).

A copy of the lease, evidencing extensive public control 
over the leased premises, is attached to the City’s answer 
and in paragraph 3 thereof it is provided th a t:

3. Lessee agrees to conduct a first-class cafe and 
to sell only such articles and wares as are sanitary, 
wholesome and clean and of the highest character, and 
agrees not to charge prices higher than those prevail­
ing in the City of Memphis for the same articles. All 
novelties to be sold upon said premises must first be 
approved by the Lessor, or its authorized agent. 
(R. 9.)

This lengthy lease details the city’s controls which relate 
to the use of the premises as an airport restaurant and the 
city’s participation in the profits through a rental arrange­
ment calculated on the basis of a percentage of gross sales 
(R. 8-17). The city granted this lessee “exclusive” rights 
(with limited exceptions) to sell food and other items at 
the airport (R. 10).

In their answers all appellees prayed for the convening 
of a three-judge court on the ground that the Division of 
Hotel and Restaurant Inspection had promulgated Regula­
tion No. R-18(L), applicable to Dobbs Houses, pursuant 
to §53-2121 of the Tennessee Code, violation of which 
would constitute a misdemeanor punishable by fine under 
§53-2120 of the Tennessee Code (R. 7,19-20).



Both appellees relied upon the regulation as justification 
for the segregation of Negroes in the restaurant and 
claimed that unless the regulation is declared unconstitu­
tional “by a court of competent jurisdiction and of final 
review” appellees would consider it a violation of Ten­
nessee law and the lease if separate facilities for the ser­
vice of Negro and white citizens were not provided (E. 7, 
21).

Appellee City of Memphis alleged that “the officials of 
the City of Memphis conceive it to be their duty to object 
to desegregation of the races by the defendant Dobbs 
Houses, Inc. in the airport restaurant, as a violation of 
the laws of the State of Tennessee, and, therefore, a vio­
lation of paragraph 20 of its lease with the City”—in the 
absence of a declaration of unconstitutionality of the regula­
tion (B. 7).

Appellees, as a first defense, claimed that the complaint 
failed to state a claim upon which relief could be granted 
(E. 5, 18).

As a second defense Dobbs Houses alleged that, “As a 
matter of business practice and in accordance with custom 
and usage of the area it requires that negro customers 
be served in an area which is segregated from that in 
which white customers are served” (E. 19).

The regulation referred to above was its third defense 
and. as a fourth defense it averred, that “it operates a 
restaurant at the Memphis Municipal Airport as a private 
facility to which the 14th Amendment does not apply, and 
that it has a legal right to enforce any rules and policies 
which it deems desirable in regard to the seating of pa­
trons, including the right to seat and serve patrons in 
separate areas because of race and color” (E. 20-21). The 
City concurred (E. 7-8).



8

After the answers were filed, appellant moved for a 
summary judgment on May 18, 1960, on the ground that 
the attached affidavit of appellant and the pleadings showed 
no genuine issue as to any material fact and appellant was 
entitled to judgment as a matter of law (R. 21-24).

The motion for summary judgment came on for hearing 
before a single judge court. Judge Marion S. Boyd, on 
June 3, 1960. The court first heard argument on the ques­
tion whether a three-judge court was required. Appellant 
contended that this case was not properly one for a three- 
judge court on the ground that there was no substantial 
constitutional question involved with respect to the regula­
tion (R. 28) and that Section 62-710 is not involved in 
this case (R. 32). Appellee Dobbs Houses moved in open 
court for leave to amend their answer to specifically plead 
Section 62-710 of the Tennessee Code (R. 32). At the close 
of the hearing the court orally ruled: “This will be a 
three-judge hearing. And that means the motion for sum­
mary judgment is not acted upon, of course, at this time 
. . . ” (R. 35).^

® On June 4, 1960, appellant’s counsel wrote a letter to the chief 
judge of the Sixth Circuit, advised of the ruling of Judge Boyd on 
June 3, and requested the chief judge to arrange to have the ease 
heard before the same three-judge court which was to sit in 
Memphis on June 27, 1961, to hear the ease of Evers v. Dwyer, 358 
U. S. 202, a ease remanded by this Court for further proceeding 
consistent with its opinion (E. 41). A letter was addressed on the 
same date to Judge Boyd pointing out that a three-judge court, 
of which he was a member, would be sitting on the 27th, and re­
spectfully requested him to take steps to have this case heard at 
that time (R. 41). On that same date, appellant served a second 
notice and motion for summary judgment on the Governor and 
Attorney General of Tennessee, as well as all defendants, putting 
them on notice that appellant would bring on his motion before a 
three-judge court on June 27, 1960. The motion was filed on 
June 6, 1960 (R. 36-37, 45). The three-judge court below, which 
was the same court which sat on the Evers case on June 27, 1960, 
was appointed by the chief judge of the Circuit by order dated 
June 9, 1960, but the order was not filed with the Clerk below until 
June 20, 1960 (R. 46). On June 27, appellant’s counsel appeared



Thereafter, the case came on for trial before the court 
below on November 9, 1960 (R. 47). Neither the Governor 
nor the Attorney General has appeared, answered, or filed 
any brief in this case.

Prior to the trial, on November 2, 1960, appellees moved 
the court for leave to amend their answer to rely on the 
doctrine of abstention (R. 48-51). These motions were 
granted at the trial (R. 51-53).

On the trial, appellant testified that in addition to being 
refused service on April 28, 1959, as alleged in his com­
plaint, he was denied service on October 29, 1959 by the 
manager of Dobbs Houses (R. 57). Appellees otfered no 
testimony and the case was taken under advisement.

On January 23, 1961, the court rendered a brief per 
curiam opinion holding that, “ . . . the plaintiff’s cause 
herein shall be stayed pending the prosecution of a proper 
declaratory judgment suit to be brought by the plaintiff 
in the courts of Tennessee for the purpose of obtaining an 
interpretation of state statutes, regulations and city 
ordinances under consideration herein” (R. 89). In so 
doing, reliance was placed wholly and solely upon this 
Court’s decision in Harrison v. NAACP, 360 II. S. 167 
(R. 88).

Thereafter, an abstention order was entered on February 
10, 1961, holding the case in “abeyance pending the filing of 
such suit and an interpretation of the State statutes in­
volved herein (R. 89-90).”

in court pursuant to the June 4th notice of motion, but the three- 
judge court declined to hear the case on the ground that appellees 
were not ready (R. 42) and on the ground that the ease had not 
been set for hearing by that three-judge court or by the district 
judge (R. 43).



10

Notice of Appeal to this Court was filed on March 1, 
1961, and the case docketed here on May 1, 1961. On Oc­
tober 9, 1961, this Court entered an order postponing fur­
ther consideration of the question of jurisdiction until the 
hearing of the case on the merits and transferred same 
to the summary docket.

On March 1, 1961, appellant also filed a notice of appeal 
to the Court of Appeals for the Sixth Circuit; docketed his 
appeal there on May 25, 1961, pursuant to extension of 
time order; and on May 26, 1961, moved that court for 
an order staying all further proceedings on that appeal 
pending disposition of the instant appeal by this Court, 
which stay was granted on June 5, 1961.

Summary of Argument

The restaurant in the Memphis Municipal Airport, leased 
by exclusive franchise to appellee Dobbs Houses, Inc., is 
a public facility in which discrimination against Negro 
patrons violates equal protection standards of the Four­
teenth Amendment. Burton v. Wilmington Parking Au- 
tkority, 365 U. S. 715. The facts and law are so clear in 
this case that the court below lacked discretion to refuse 
to grant appellant prompt relief. Union Tool Co. v. Wilson, 
259 U. S. 107; Henry v. Greenville Airport Commission, 
284 F. 2d 631 (4th Cir. 1960).

The doctrine of abstention was improperly invoked since 
no construction placed on the state statutes and regulation 
in question would have avoided the constitutional issue 
pleaded and proved. Harrison v. NAACP, 360 U. S. 167, 
was improperly relied upon below as justifying abstention 
under the facts of this case.

The direct appeal of this case, as authorized by Title 28, 
United States Code, §1253, is proper both because the



11

court below was properly convened as a statutory three- 
judge court, since an injunction may have issued on the 
ground of unconstitutionality of the state regulation and 
statutes relied upon, Florida Lime and Avocado Growers 
Inc. V. Jacobsen, 362 U. S. 73, and because the court below 
denied appellant’s injunction plea in terms similar to other 
orders reviewed by this Court. Bryan v. Austin, 354 U. S. 
933; NAACP  v. Bennett, 360 U. S. 471. Appealability 
of an order depends upon its effect rather than its 
terminology. Ettlesony. Metropolitan L. Ins. Co., 317 U. S. 
188; Glen Oaks Utilities, Inc. y . City of Houston, 280 F. 
2d 330, 333 (5th Cir. 1960). The legal operation and ef­
fect of the order appealed from would be the same even 
if it had included the word “denied” as in Gov’t S  Civic 
Employees Organization Com. v. Windsor, 347 U. S. 901, 
aff’g 116 F. Supp. 354 (N. D. Ala. 1953). Non-appeal­
ability of the order would necessitate resort to writ of 
mandamus to require the entry of an order expressly 
stating that the injunction is denied. Cf. La Buy v. Howes 
Leather Co., 352 U. S. 249.

The direct appeal prerequisites of Section 1253 are also 
satisfied by applying the doctrine of the line of this Court’s 
decisions which hold that the stay order itself is to be 
regarded as granting an injunction, since by its substan­
tial effect, it restrains further proceedings in the federal 
court pending action in the state courts. Ettleson v. Metro­
politan L. Ins. Co., 317 U. S. 188, 192; Enelow v. New York 
L. Ins. Co., 293 U. S. 379; Louisiana Power and Light Co. 
v. Thibodaux, 360 U. S. 25, 26, note 1.

Clearly, a conclusion of non-appealability attributed to 
the order of the court below would frustrate the congres­
sional intent explicit in §1253 which makes reviewable by 
this Court decisions of three-judge courts in cases seeking 
to enjoin state laws.



12

Appellees’ Policy of Racial Segregation in the Munic­
ipal Airport Restaurant Constituted State Action of a 
Nature So Clearly Prohibited by the Fourteenth Amend­
ment That the Court Below Plainly Erred in Denying the 
Requested Injunction.

Last term, Burton v. Wilmington Parking Authority, 365 
U. S. 715, held subject to the equal protection clause of the 
Fourteenth Amendment a restaurant facility in a munici­
pally owned parking building leased to a private operator. 
After a review of the lease’s terms the majority concluded:

Addition of all these activities, obligations and re­
sponsibilities of the authority, the benefits mutually 
conferred, together with the obvious fact that the res­
taurant is operated as an integral part of a public 
building devoted to a public parking service, indicates 
that degree of state participation and involvement in 
discriminatory action which it was the design of the 
Fourteenth Amendment to condemn. 365 II. S. 715.

Certainly the degree of “participation and involvement” 
found in the Burton case may be found in the lease here. 
Indeed, the lease between the City of Memphis and Dobbs 
Houses, Inc. (R. 8-17), suggests that this lessee is virtually 
an agent of the City. In addition to denoting the leased 
areas (Par. 1), all of which are publicly owned, and grant­
ing the exclusive franchise to sell food, periodicals, and 
novelties at the Memphis airport (Par. 7) (sufficient in 
itself to invoke the equal protection clause, see Boman v. 
Birmingham Transit Co., 280 F. 2d 531 (5th Cir. I960)), 
the City retained control over what lessee could sell, how 
much could be charged (Pars. 3, 5, 6), and how prices should 
be displayed (Par. 9). Twenty-four hours operation daily



13

was required (Par. 4); and lessee agreed to discharge em­
ployees adjudged “reprehensible” by the City’s agent (Par. 
14). Additional equipment installed by lessee (Par. 15), 
and location of equipment and vending machines outside of 
building (Par. 16) was to be approved by the City. Dobbs 
Houses was not required to pay a fixed rental—rather, the 
City receives six percent of the gross from all sales except 
those designated as gift items, on which the City receives 
10 percent (Par. 10).

A weighing of these controls, obligations, and mutual 
benefits on the scale of the Burton case, left no room for 
the court below to avoid the conclusion that “the proscrip­
tions of the Fourteenth Amendment must be complied with 
by the lessee as certainly as though they were binding 
covenants written into the agreement itself.” 365 U. S. at 
715. See also. Coke v. Atlanta, 184 F. Supp. 579 (N. D. 
Ga. 1960); Derrington v. Plummer, 240 F. 2d 922 (5th 
Cir. 1956), cert. den. Casey v. Plummer, 353 U. S. 922, and 
other cases collected in Burton, supra, note 2.

The essential facts in this case have never been in dis­
pute, and the law to be applied is clear. Without any ques­
tion, appellant was entitled to an injunction granting his 
requested relief. “Legal discretion . . . does not extend 
to refusal to apply well-settled principles of law to a con­
ceded state of facts.” Union Tool Co. v. Wilson, 259 U. S. 
107, 112. See also, Henry v. Greenville Airport Commis­
sion, 284 F. 2d 631 (4th Cir. 1960); Clemons v. Board of 
Education, 228 F. 2d 853 (6th Cir. 1956), cert. den. 350 
U. S. 853; Board of Supervisors v. Wilson, 340 U. S. 909, 
affirming 92 F. Supp. 986 (E. D. La. 1950).



14

II
The Court Below Erred in Applying the Doctrine of 

Abstention to the Facts of This Case.

After this case was submitted on the merits, the court 
below stayed all proceedings pending suit for declaratory 
judgment by appellant in the state courts for construction 
of the statutes under consideration.

Appellant does not understand appellees or the court 
below to claim that the constitutionality of Sections 53- 
2120 (misdemeanor to fail to comply with regulations of 
hotel division), and 53-2121 (division authorized to make 
rules and regulations)^ is questioned by anyone in this ease, 
or that any party to this case sought to enjoin enforcement 
of these statutes on constitutional grounds. Dobbs Houses’ 
answer leaves no doubt that, quite apart from the regulation 
and statutes in question, its own policy is to segregate 
Negroes in this municipally owned restaurant facility which 
it has leased.

Consequently, even assuming arguendo, that the Ten­
nessee courts should hold that under Section 53-2121 the 
Division is without power to promulgate a regulation per­
mitting segregation in restaurants, the constitutional ques­
tion raised by the complaint is not avoided, mooted, or 
altered in any material way. The question is still whether 
this lessee’s policies are proscribed by the prohibitions of 
the Fourteenth Amendment.

Since the order below was entered, Section 53-2121 has been 
amended, effective February 18, 1961, to read as follows:

“Rules and regulations authorized—The division is hereby 
authorized to make such rules and regulations as may be neces­
sary pertaining to the safety and/or sanitation of hotels and 
restaurants in order to carry out the provisions of this chapter.”



15

Eegulation No. E-18 (L), violation of wMcli is a misde­
meanor under §53-2120, provides as follows:

Eestaurants catering to both white and negro pa­
trons should be arranged so that each race is properly 
segregated. Segregation will be considered proper 
where each race shall have separate entrances and 
separate facilities of every kind necessary to prevent 
patrons of the different races coming in contact with 
the other in entering, being served, or at any other 
time until they leave the premises. (Emphasis added.)

The Division’s first regulation, Eegulation E-1, defines 
terms used in the regulations:

“Definition of Terms.
#  #  #  ^  #

(d) The term ‘shall’ as used in these regulations is 
mandatory.

(e) The term ‘should’ as used in these regulations 
indicates desirability.

In the light of these definitions, restaurant segregation 
is clearly not mandatory. The construction of Section 
53-2120 by the Tennessee courts is therefore not necessary 
to a determination of the constitutional question presented 
because if Dobbs Houses does not segregate, either as a 
matter of volition or under court compulsion, it is shielded 
by the nonsegregation option which the regulation affords.

However, since Dobbs Houses has elected to stand on the 
regulation as justification for its segregation, the question

® Tennessee Laws, Rules and Regulations for Restaurants, De­
partment of Conservation, Division of Hotel and Restaurant In­
spection. Approved June 18, 1952, filed in Office of Secretary of 
State.



16

remains whether there is necessity for the Tennessee courts 
to construe this regulation to avoid premature constitu­
tional adjudication. Plainly, there is no justification for 
invoMng abstention with respect to this regulation since 
no construction can make it constitutionally palatable. Ap­
pellant can find no authority whatsoever for the proposi­
tion that, where a state policy is clearly and unavoidably 
unconstitutional on its face, comity dictates that state 
courts be allowed the privilege of a prior declaration to 
this effect. Such a requirement would not be abstention 
but a patent abdication of the duty imposed upon federal 
courts.

Regulation No. R-18 (L) which permits segregation in a 
municipally owned restaurant leased to a private corpora­
tion to operate as a first class cafe for the benefit of the 
public using the airport is void on its face. Brown y. 
Board of Education of Topeha, 347 U. S. 483 (1954) (Kan­
sas had a permissive school segregation sta tu te); Burton 
V. Wilmington Parking Authority, 365 U. S. 715; Muir 
V. Louisville Park Theatrical Association, 347 U. S. 971, 
vacating and remanding, 207 F. 2d 275 (6th Cir. 1953). 
See Cooper v. Aaron, 358 U. S. 1, 19 (1958). Moreover, 
if the Tennessee courts should hold the regulation inappli­
cable to Dobbs Houses, the constitutional question again 
remains the same in view of the position taken by Dobbs 
Houses. Dobbs Houses also elected to rely upon §62-710 
of the Tennessee Code which abrogated the common law 
rule giving a right of action to any person excluded from 
any hotel, or public means of transportation, or place of 
amusement. If the Tennessee courts should hold that this 
statute furnishes Dobbs Houses the legal foundation for 
discrimination against Negroes, the constitutional question 
remains unchanged. Of. Burton v. Wilmhigton Parking 
Authority, supra (concurring and dissenting oxnnions). If 
tlu> TennessiH' courts should hold that this statute does not



17

apply to restaurants, contrary to what appears to be the 
clear intent or purpose of this statute passed in 1875 to 
counteract the supposed effects of the Civil Eights Act 
of 1 8 7 5 ,see State v. Lasater, 68 Tenn. 584 (1877), the 
posture of the constitutional question here is the same.

No abstention principle is more firmly established than 
this Court’s repeated pronouncement that federal courts 
must postpone the exercise of jurisdiction in the face of a 
federal constitutional issue when it appears the issue might 
be avoided, mooted or presented in a different posture by 
a state court determination of pertinent state law. Clay v. 
Sun Insurance Co., 363 U. S. 207; Louisiana Power S  Light 
Co. V. Thibodaux, 360 U. S. 25; Harrison v. NAACP, 360 
U. S. 167; Martin v. Creasy, 360 U. S. 219; R.R. Comm, of 
Texas v. Pullman Co., 312 U. S. 496; see. County of Alle­
gheny V. Franh Mashuda Co., 360 U. S. 185, 189.

In Harrison v. NAACP, supra, the sole case relied on 
below, this Court held that abstention was justified with 
respect to the three statutes involved in that appeal since 
this Court was unable to agree that the terms of those 
statutes left “no reasonable room for construction by the 
Virginia courts which might avoid in whole or in part the 
necessity for federal constitutional adjudication or at least 
materially change the nature of the problem.” (At p. 177.)

But as demonstrated above, there is no construction which 
the Tennessee courts could give to the statutes and regula­
tions relied on by appellees which would obviate the neces­
sity for deciding the constitutional issue. The instant case, 
therefore, is not in the same category with the Harrison 
case.

If consideration is given the other principles underlying 
this Court’s development and extension of the doctrine of

«18 Stat. at L. 335.



18

abstention, it is likewise clear that none of these is ap­
plicable here. This Court has required District Courts 
to postpone exercise of jurisdiction where the exercise 
of that jurisdiction would interfere with a state’s admin­
istrative processes, Burford v. Sun Oil Co., 319 TJ. S. 315 
and Pennsylvania v. Williams, 294 U. S. 179, or collide 
with the state’s right to collect taxes, Toom-er v. Witsell, 
334 U. S. 385, 392 and Great Lakes Dredge and Dock Co. 
V. Htiffman, 319 U. S. 293, or result in needless friction 
by unnecessarily enjoining state officers from executing 
state policy concerned with matters of wholly local concern. 
Alabama Public Service Commission v. Southern Railroad 
Co., 341 U. S. 341. All of these reasons for abstention have 
been based upon comity. See, County of Allegheny v. 
Frank Mashuda Co., supra, at 189.

More recently, this Court has required abstention where, 
in addition to all of the foregoing reasons, the case in­
volves “complex and varying effects” on individual situa­
tions involved, Martin v. Creasy, supra, or where the prob­
lem involved “is intimately related to state sovereignty” 
and the state law question may be decisive of the issues 
touching upon the relationship of city to state. Louisiana 
Power & Light Co. v. Thibodaux, supra.

None of the above considerations is involved here. Con­
trolling here is this Court’s recent admonition that absten­
tion is “an extraordinary and narrow exception to the 
duty of a District Court to adjudicate a controversy prop­
erly before it. Abdication of the obligation to decide cases 
can be justified under this doctrine only in the exceptional 
circumstances where the order to the parties to repair 
to the state court would clearly serve an important counter­
vailing interest.” County of Allegheny v. Frank Mashuda 
Co., supra, at pages 188-189. No reason to invoke the nar­
row exception is presented by the facts or the law herein.



19

Indeed, tlie order directing appellant here to the state 
court for declaratory judgment served no apparent pur­
pose hut frustration of constitutional rights long denied.

I ll
This Action Is One Required by Title 28 U. S. C., 

Section 2281 to Be Heard by a District Court of Three 
Judges and This Court Has Jurisdietion of This Direct 
Appeal Under Title 28 U. S. C., Section 1253.

A. This case meets the requirements for the convening 
of a three-judge district court which is required for the 
granting o f:

“ an interlocutory or permanent injunction restrain­
ing the enforcement, operation or execution of any 
State statute hy restraining the action of any officer 
of such State in the enforcement or execution of such 
statute or of an order made by an administrative board 
or commission acting under State statutes, . . . upon 
the ground of the unconstitutionality of such stat­
ute . .  . ”

This is such an action. The term “statute” comprehends 
administrative orders as well as state legislative enact­
ments provided they are of state-wide application. Florida 
Lime and Avocado Growers v. Jacobsen, 362 U. S. 73, 74, 
McLaurin v. Ohlahoma State Regents, 337 U. S. 637.

Section 62-710, Tenn. Code Ann., Vol. 9 and Regulation 
No. R-18 (L), set out above at page 3, were raised as 
defenses to appellant’s allegation that appellees, acting 
under color of the laws of Tennessee, had adopted and 
were enforcing a policy, practice, custom and usage of 
segregating Negroes and whites in the airport restaurant. 
Both the statute and the rule have statewide application.



20

Appellees’ claim is that the statute and regulation au­
thorized the challenged discrimination and were constitu­
tional until declared otherwise by a court of final review 
(R. 7-8, 19-20, 38). They thus interposed the state policy 
evidenced in the regulation against a claim of unconstitu­
tional state action raised by the face of the complaint. It 
therefore clearly appeared from the complaint and answer 
that there was involved here an effort to bring about “state­
wide doom by a federal court of a state’s legislative policy,” 
Phillips V. United States, 312 U. S. 246, 251. So that this 
doom would not be brought about in an “improvident” 
manner. Ibid., three judges were summoned.

In the Florida Lime and Avocado case, supra, this Court 
ruled:

Section 2281 seems rather plainly to indicate a con­
gressional intention to require an application for an 
injunction to be heard and determined by a court of 
three judges in any ease in which the injunction may 
be granted on grounds of federal unconstitutionality. 
(At p. 571.)

This action also involves “restraining the action of . . . 
[an] officer of such state.” See Cleveland v. United States. 
323 U. S. 329 (1945), where local officials were held to be 
officers of the state when enforcing state-wide policy; 
Brou'der v. Gayle. 142 F. Supp. 707 (1956) (D. C. Ala.) 
aff'd per atriam. 352 U. S. tXXl. where bus drivers were held 
to be officers of the state in that they had the authority to 
enforce state policy; Spidman Motor S aks  v. Dod-je. 295 
V. S. 8th tH tlOeob’ AppelUv City of Memphis could only

' "W hen' st.'U'.uo eaiKAvcs s '.\8ky of au
officer. ;d(ho»>gh cl..vM'r. ir, a sr.Kro'Axv.j a iA vr wTfbias
ib.'tt Hmiu'd tevriiery, ir.'^y be ebsTsreo wub l ie  dray of enfoTciioc 
the st!»tnte in the inien'st <vf the 8i;«e and no: simply in tbe interfsi 
of the locality where lie sery es."



21

be restrained by an injunction against its officers. Munic­
ipal officers, of course, may be considered state officers for 
purposes of three-judge court jurisdiction when they en­
force statewide policy, Ihid. Moreover, Dobbs Houses, 
Inc., as lessee of city property on which it is operating a 
public accommodation also is an agency of the state within 
the contemplation of this Court’s decisions construing the 
Fourteenth Amendment’s restraints. Burton v. Wilming­
ton Parking Authority, 365 U. S. 715 (1961).

That the statute and administrative order were raised 
by way of defense rather than by way of complaint is of 
no consequence because the purpose of §‘§■2281 to 2284 is to 
prevent improvident statewide doom by a federal court 
of a state’s legislative policy. If this were not the rule 
then statewide policy could be brought before a one-judge 
court at any time at the choice of the plaintiff who could 
elect to sue the person enforcing the policy to enjoin his 
conduct rather than in terms seeking to enjoin his applica­
tion of a statute. I t  is incredible, for example, that the 
school segregation cases, Brown v. Board of Education, 347 
H. S. 483, could properly have been heard before a one- 
judge court merely at the option of plaintiffs who without 
mentioning state segregation laws could sue an elementary 
school principal for his conduct in excluding a Negro child 
although such a principal was, in fact, acting pursuant to 
the mandate of state statute. Since congressional i>olicy 
is that statewide policy as expressed in statutes and admin­
istrative orders of statewide application should receive 
the mature consideration of three judges, rather than one, 
and should be amenable to speedy review by this Court, 
it would be a serious blow to the congressional scheme if 
the forum were determined by such tac-tical considerations. 
Therefore, this tJourt has held that the jurisdictional 
scheme requires that jurisdiction of a three-judge court



22

may not be defeated by the failure of plaintiffs to pray for 
it where the case involves a statute which could be enjoined 
upon the ground of unconstitutionality even though the 
law might be raised by defendant in his answer, Lambert 
Rwn Coal Co. v. Baltimore d  0. R. Co., 258 U. S. 377, 382.

That a statutory scheme provides an option to segregate 
rather than an inflexible requirement makes no difference 
for three-judge court jurisdiction because schemes of this 
sort fall also under §§2281-2284. Indeed, Brown v. Board 
of Education of Topeha, 347 U. S. 489, itself, involved an 
optional segregation statute.

That the unconstitutionality of defendants’ action taken 
under the statutes and regulation and otherwise is patent 
does not obviate the need for a three-judge court. Section 
2281 is clear in stating that no injunction of the kind 
sought here shall “be granted . . . upon the ground of the 
unconstitutionality of such statute unless the application 
therefor is heard and determined by a district court of 
three judges. . . .” E x parte Poreshy, 290 U. S. 30, a pro­
nouncement by this Court on the effect of the substan­
tiality of the constitutional question on the operation of 
§2281 et seq. is not to the contrary. Poreshy was a case 
where the injunction was denied, not granted.

Appellant recognizes that a number of district courts 
have granted injunctions against the enforcement of ob­
viously unconstitutional state segregation statutes while 
sitting as single judge courts. See Gray v. Board of 
Trustees of the University of Tennessee, 100 F. Supp. 113 
(E. D. Tenn. 1951) dismissed as moot, 342 U. S. 517, and 
see discussion of this point in Davis v. County School 
Board, 142 F. Supp. 616, 617 (D. C. Va. 1956); Bush v. 
Orleans Parish School Board, 138 F. Supp. 336, mandamus 
den. 351 U. S. 948, aff’d 242 F. 2d 156 (5th Cir.) cert, 
denied 354 U. S. 921. And see cases collected in Anno:



23

Three-Judge Court, 4 L. ed. 2d 1931, 1958, Note 1. The 
policy considerations in terms of efficient judicial admin­
istration suggested by these decisions are perhaps best 
expressed by Phillips v. United States, 312 U. S. 246, 250, 
251, in which Mr. Justice Frankfurter pointed out that 
the requirement of three judges “entails a serious drain 
upon federal judicial system” and that the appealability 
of three judge court orders directly to this Court places 
a strain upon the docket of this Court. I t may he, there­
fore, that notwithstanding the language of 2281-2284, this 
Court appropriately might construe the three judge court 
act to permit a single judge district court to enjoin the 
enforcement of a clearly unconstitutional statute as sug­
gested in the segregation suits cited above. On the other 
hand, while single judge action in such cases may be per­
missible for reasons of sound judicial administration, where 
three judges actually do take jurisdiction in a case in­
volving an injunction against the enforcement of a state 
statute based on its constitutionality such jurisdiction prop­
erly has attached under the very terms and policy of 
§§2281-2284. I t would be a much heavier burden on the 
federal judiciary for such a case to be subject to multiple 
reviews, first in this Court, then in the Court of Appeals 
and then once more in this Court. For, if this Court now 
determines that the case was cognizable by one judge and 
one judge only, appellant would then have to pursue 
his appeal before the Sixth Circuit whose judgment would 
be reviewable here on the merits. Appellant’s position 
therefore, is th is : The case falls within the language and 
policy of §§2281-2284. As such, three judges who took and 
exercised jurisdiction lawfully possessed such jurisdiction 
and the cause is appealable directly to this Court. Although 
an alternative construction of §§2281-2284 might justify— 
in the light of pressing problems of judicial administration 
—a single judge entering an injunction against the segre-



24

gation here complained of, once three judges took juris­
diction of the ease it was properly theirs and is ap­
propriately reviewable here.

B. Title 28, United States Code, 1253 provides for direct 
appeal by any party to this Court:

“ . . . from any order granting or denying, after notice 
and hearing, an interlocutory or permanent injunction 
in any civil action, suit or proceeding required by any 
Act of Congress to be heard and determined by a 
district court of three judges.”

In this case, after due notice, there was a hearing before 
a district court of three judges on appellant’s prayer for 
a permanent injunction which appellees claimed and the 
court below agreed involved state statutes which the court 
might be required to enjoin (E. 4, 7, 53-62).

Thus, the requirements of Section 1253 were met in this 
case when the three-judge court below held a hearing on 
the merits of appellant’s claim for injunctive relief, which 
involved the claim of constitutionality of alleged appli­
cable state statutes, heard all the evidence of the parties 
and, after the hearing, issued a major order which, in ac­
tual operation and effect, either granted or denied the 
injunction sought.

The order entered here which effectively denied the re­
lief requested provides inter alia,

“It Is, Therefore, Ordered, Adjudged and Decreed, that 
said Cause be and the same is hereby held in abeyance 
pending the filing of such suit for interpretation of 
the State statutes involved herein” (E. 90).



25

It is clear from prior decisions of this Court in reviewing 
similar orders that such orders are appealable under Sec­
tion 1253. In Bryan v. Austin, 354 U. S. 933, this Court 
took jurisdiction of and vacated a similar order.® Likewise, 
in NAACP  v. Bennett, 360 U. S. 471, this Court vacated 
a similar order and remanded the case.®

There appears to be no question that stay orders issued 
by three-judge courts applying abstention where injunctive 
relief is sought are directly appealable to this Court. Oov’t 

Civic Employees Organization Com. v. Windsor, 347 
U. S. 901, afPg 116 F. Supp. 354 (N. D. Ala. 1953) (Order 
reprinted at 146 F. Supp. 214, 215).

The only stay orders issued by three-judge courts which 
may not be appealable are those issued pursuant to Title 
28, §2284 requiring a stay in those instances where the state 
has agreed to stay statutes attacked as unconstitutional 
pending its own state court test. Also, stay orders which 
are merely a procedural step in the nature of a short con­
tinuance, steniming from the inherent power of a District

® The Order in the Bryan case, which is on file in this Court, 
No. 931, October Term 1956 provided;

“ . . .  it is ordered that the ease be retained and remain pending 
upon the docket but that proceedings therein be stayed to 
permit the plaintiffs a reasonable time for the exhaustion of 
state administrative and judicial remedies, after which such 
further proceedings, if any, will be had by this court as may 
then appear proper in the premises.” (Jurisdictional State­
ment, p. 43a.)

® The Order in the Bennett case is on file in this Court as No. 757, 
October Term 1958, and it provided:

“On this day, pursuant to the opinion of the Court rendered 
by Judge Sanborn, it is O rdered , That the motion for a stay 
of proceedings filed herein by the defendant, Bruce Bennett, 
Attorney General of the State of Arkansas, and joined in by 
certain other defendants, be, and the same is, granted, and 
that this Court will retain jurisdiction of this cause until 
efforts to obtain an appropriate adjudication in the state courts 
have been exhausted.”



Court to control the progress of a cause likewise may not 
be reviewable. Enelow v. New YorJc Life Insurance Co., 
293 U. S .379.

While the order of the court beloAV does not use the words 
“injunction denied”, the order in actual operation and etfeet 
denies the injunctive relief sought, and, instead of relief, 
stays the action indefinitely until appellant is able to obtain 
from the courts of Tennessee a declaratory judgment inter­
preting the questioned state statutes. There is no indica­
tion in the order that appellant’s injunction request is still 
under ad-\-isement. Bather, the court’s order leaves no 
doubt that no further proceedings will be had until there 
has been a state court construction (E. 89).

Logically and properly, whether “an order is subject to 
appeal depends upon its efiect. rather than its terminology.” 
Glem Oaks UiHities, Inc. v. City of Houston, 280 F. 2d 330. 
^  (5ih Or. 1960); Ettleson v. Metropolitan L. Ins. Co., 
317U.S.1SS.

While the order in Windsor, supra, which was affirmed 
here, did recite that “the final relief for which plaintiffs 
prayed in their complaint is hereby denied”, before reciting 
that jurisdiction was retained pending state court construc­
tion of the statute, it is obvious that the actual legal opera­
tion and effect of that order was the same as the effect of 
the abstention orders in the Bryan case, supra, the Bennett 
ease, supra, and in the instant case.

A contrary view of the nature of such orders—that is, 
one which views the trial court as not having “denied” 
the demand for injunctive relief—^̂ vould require appellant 
to seek an extraordinary writ of mandamus requiring the 
court below to enter an order expressly stating that it 
did deny the injunction. ’Ihat such relief would be avail­
able if needed seems plain from the rationale of both the



27

majority and dissenting opinions in La Buy v. Howes 
Leather Co., 352 U. S. 249, where the Court approved a 
writ of mandamus issued to compel a trial judge to vacate 
an order of reference to a master. Without some such 
alternative remedy a trial court order refusing to grant 
an injunction would become beyond this Court’s juris­
diction to review by simply not reciting that it was an 
order of denial. The All Writs Act, however, was plainly 
designed to provide a remedy against such a situation.

There is, of course, an alternative theory of appealability 
applicable here. Under the doctrine of Ettleson v. Metro­
politan L. Ins. Co., 317 U. S. 188, 192; Enelow r. New 
York L. Ins. Co., 293 U. S. 379, and Louisiana Power cmd 
Light Co. v. Thibodaux, 360 U. S. 25, 26, note 1, if even 
limited effect is given to the abolition of the old distinction 
between law and equity (Rule 1, Federal Rules of Civil 
Proendure), the stay order may itself he regarded as an 
injunction which by its substantial effect restrains further 
proceedings in the federal court pending the action in the 
state courts. Indeed, if the stay order in this case is held 
to be neither a denial of an injunction requested nor an 
injunction itself, and thus unappealable, the case law will 
have created the follo'Rnng incredible and unconscionable 
anomaly; Appeals would be allowed from stay orders in 
law actions ''where no injunc-tion wa.s sought) on the fiction 
that a stay is an injunction again.st further proceedings 
in the court is.suing it fa.s in the Thibodaux case); but 
app-eels wouH not be allowed from stay orders issued in 
.suits where an ir.juLction is actually sought and not granterJ 
pending state court acth/n merely W ause the court stay­
ing the ease choote.s not us/; the words “injunction de­
nied” in its order, .Ss/r Olen Oaks CtHitix/s, Iw:. v. ('ity of 
Hourtofi. 2rd' F. 2d 3% C/tb Cir. V.E'h). If the “substantial 
e^eet" prtn.cipi.e ir. appraising ju/lgrnents; is; b> Is; aj>fdied



in aid of a fiction as in Ettleson, supra, 317 U. S. at 192, 
it should also be applied here in aid of reality.

The action of the court below was in fact a denial of 
injunctive relief; it should therefore he regarded as a 
denial in law under §1253. Bryan v. Austin, supra, NAACP  
V. Bennett, supra, Glen Oaks Utilities v. City of Houston, 
supra. Cf. Govt, d  Civic Emplyoees Organizing Com. v. 
Windsor, supra.

Finally and fundamentally, the plain purpose of Con­
gress in enacting §1253 was to make consequential decisions 
of three-judge courts reviewable on direct appeal to this 
Court. The Congressional purpose was to insure that deci­
sions disposing of the important and special class of cases 
wdiere three-judge courts are required could be directly 
and promptly appealed to this Court. This purpose was 
carried out by §1253 which allows appeals from orders 
granting or denying temporary or permanent injunctions 
since applications for such injunctions are present in all 
cases where three-judge courts are required under 28 
U. S. C-, §§2281 and 2282. A rule that stay orders issued 
in the context of the judicially created equitable absten­
tion doctrine are not reviewable would frustrate the Con­
gressional plan of making the decisions of the three-judge 
courts on requests to enjoin state laws reviewable by tbi.t; 
Court.



29

CONCLUSION

It is, therefore, respectfully requested that this Court 
vacate the order of the court below and direct that court 
to enter an injunction granting appellant the relief 
prayed for in the complaint.

Eespectfully submitted,

C o n st a n c e  B a k e r  M o tley  
10 Columbus Circle 
New York 19, New York

J ac k  G r e e n b e r g

10 Columbus Circle 
New York 19, New York

R . B. SUGARMON
588 Vance Avenue 
Memphis, Tennessee

Attorneys for Appellant.

J a m e s  M . N a b r it , III  
D e r r ic k  A. B e l l  
M ic h a e l  M e l t s n e r

of Counsel



30

CERTIFICATE OF SERVICE

This is to certify that on the 2nd day of December, 1961, 
I  mailed a copy of Appellant’s Brief to the following at­
torneys for the City of Memphis and Dobbs Houses, Inc., 
by sending a true copy of same to them via regular United 
States Airmail, Special Delivery, postage prepaid:

Frank B. Giannoti, Jr., Esq. 
City Attorney for Memphis 
146 North Third Street 
Memphis, Tennessee

Edward P. A. Smith, Esq. 
Attorney for Dobbs Houses

James M. Manire, Esq. 
Attorney for the 

City of Memphis 
146 North Third Street 
Memphis, Tennessee

John M. Heiskell, Esq. 
Attorney for Dobbs Houses

1118 Commerce Title Building Commerce Title Building 
Memphis 3, Tennessee Memphis 3, Tennessee

COUSTAUGB B aKEE M oTLEY 

Attorney for Appellant