NAACP Legal Defense and Educational Fund, Inc. v. Harrison Petition for Appeal

    Record No. 5097
IN THE

Supreme Court of Appeals of Virginia
AT RICHMOND

N. A. A. C. P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., Appellant,' \

\

versus

A. S. HARRISON, JR., ATTORNEY GENERAL OF VIR­
GINIA, ET AL., Appellees.

PETITION FOR APPEAL.

SPOTTSWOOD W. ROBINSON, III 
623 North Third Street 
Richmond 19, Virginia.

THURGOOD MARSHALL 
10 Columbus Circle, Suite 1790 
New York 19, New York.

Counsel for Appellant.



INDEX TO PETITION

Record No. 5097.
Page

Petition For Appeal ............................................................  1*
Statement of Material Proceedings in the Lower Court .. 2*
Errors Assigned .................................................................... 4*
Questions Involved in the Appeal .....................................  7*
Statement of the Facts ........................................................  9*
Appellant’s Constitutional Contentions in the Federal 

Forum: Chapters 33 and 36 Abridge Freedoms of 
Expression And Association And Violate The Due 
Process and Equal Protection Clauses Of The Four­
teenth Amendment ........................................................  13*

A. The Offenses Created By Chapters 33 and 36
Are Defined So Broadly That Activities Related 
To The Exercise Of First Amendment Freedoms 
Are Made Criminal ................................................  14*

B. The Offenses Provided For Under Chapters 33
and 36 Are Framed So As To Amount To A 
Denial Of Due Process Of Law .........................  19*

C. Chapters 33 and 36 Violate The Due Process 
Clause Of The Fourteenth Amendment Because 
They Fetter Access To The Federal Courts .. 22*

D. Chapters 33 and 36 Violate The Due Process
Clause Of The Fourteenth Amendment Because 
They Are Infringements On Liberty .................  24*

E. Chapter 36 Legalizes A Long List Of Maintenous
Activities And Resultingly Violates The Equal 
Protection Of The Law ......................................... 26*

Argument ...............................................................................  28*

Neither Chapter 33 Nor Chapter 36, Properly Con­
strued In The Light Of Appellant’s Constitutional 
Contentions Under Settled Rules Of Statutory Con­
struction, Can Properly Be Construed To Prohibit 
The Activities Of Appellant Which The Court Below 
Held To Be Inhibited Thereby .................................  28*

A. The Statutes Involved ...........................................  28*

1. Chapter 33 .................   29*
2. Chapter 3d ........................................................  30*



B. The Court Below Failed To Apply Well Settled
Rules of Statutory Construction In Declaring 
Chapters 33 and 3*6 To Apply To And Prohibit 
The Activities Of Appellant Involved On This 
Appeal .......................................................................  31'

C. Chapters 33 And 36 Should Xot Be Construed To 
Apply To Or Prohibit The Activities Of Appel­
lant Which Were Declared Violative Thereof .. 36*

1. Appellant’s Activities Declared To Be Vio­
lative Of Chapter 33 Do Not Amount To An 
Improper Solicitation Of Legal Or Pro­
fessional Business Or Employment Within 
The Meaning Of That Chapter When Prop­
erly Construed In The Light Of Appellant’s 
Constitutional Contentions Under Settled 
Rules of Statutory Construction .................  38*

2. Appellant’s Activities Declared To Be Vio­
lative Of Chapter 36 Do Not Amount To An 
Inducement To Commence Or Prosecute Law 
Suits Within The Meaning Of That Chapter 
When Properly Construed In The Light Of 
Appellant’s Constitutional Contentions Un­
der Settled Rules Of Statutory Construction . 46*

Conclusion .............................................................................  50*

Page

Prayers ...........................................................................  50*
Request For Oral Argument .....................................  50*
Adoption Of Petition As Opening Brief On Appeal . 50* 
Certificate Of Mailing Of Copies Of Petition To 
Opposing Counsel ........................................................  50*

Certificate As To Parties On Appeal .............................  51*
Certificate Of Opinion As To Review .............................  51*

Table of Citations.

Cases.

Ades, In Re: 6 F. Supp. 467 (D. C. Md.) . . .  .16*, 17*, 25*,
45*, 49*

Adkinson v. School Board of City of Newport Neivs, 3
Race Rol. L. Rep. 938 ....................................................  23*

Aetna Bldg. Maintenance Co. v. West, 246 P. (2d) 11
(C a l .) '...............................................................................  41*



Air-Way Electric Appliance Corp. v. Day, 266 U. S. 71 . 26* 
Alex Foods v. Metcalf, 37 Cal. App. (2d) 415, 290 P. (2d)

646 ...................................................................................  41*

Page

Allen v. County School Board of Prince Edward County,
Va., 249 F. (2d) 462, cert, denied 355 U. S. 953, 
motion for further relief denied in part 164 F. Supp.
786, reversed F. (2d) (decided May 5, 1959) .......... 22*

Allen v. School Board of Charlottesville, 1 Race Rel. L.
Rep. 886, affirmed 240 F. (2d) 59, cert, denied 353 
U. S. 910, motion for further relief granted 3 Race 
Rel. L. Rep. 937, 938, appeal dismissed 4 Race Rel.
L. Rep. 39 .......................................................................  23*

American Communication v. Douds, 339 U. S. 382 .......... 15*
Andetrson v. Commonwealth, 182 Va. 560, 29 S. E. (2d)

838 ...................................................................................  32*
Atkins v. School Board of City of Newport News, 148 F. 

Supp. 430, ruling on merits 2 Race Rel. L. Rep. 334, 
affirmed 246 F. (2d) 325, cert, denied 355 U. S. 855 
sub nom. Adkins on v. School Board of City of New­
port News, 3 Race Rel. L. Rep. 938 .........................  23*

Barbier v. Connelly, 113 U. S. 27 .....................................  23*
Barrows v. Jackson, 346 U. S. 249 .....................................  14*
Bartels v. Iowa, 262 U. S. 404 ......................... '.............. 25*
Beckett v. School Board of City of Norfolk, 148 F. Supp.

430, decided on the merits 2 Race Rel. Rep. 337 af­
firmed 246 F. (2d) 325, cert, denied 355 IT. S. 855, 
motion for further relief granted 3 Race Rel. L. Rep.
1155, affirmed 260 F. (2d) 18 ....................................  23*

Bigelow v. Old Dominion Copper Mining & Smelting Co.,
74 N. J. Eq. 457, 71 A. 153 .................................16*, 17*

Brannon v. Stark, 185 F. (2d) 871 (D. C. Cir.) .......... 16*
Brewer v. Iloxie School Dist. No. 46, 238 F. (2d) 91

(8th Cir.) ........................................................................ 14*
Brown v. Board of Education, 347 U. S. 483, 349 U. S.

294 ...................................................................................  22*
Brush v. Cafbondale, 299 111. 144, 82 N. E. 252 .............. 16*
Buchanan v. Warley, 245 U. S. 60 .....................................  14*
Campbell v. Third District Committee, 179 Va. 244, 18

S. E. (2d) 883 ................................................................  42*
Chester H. Roth, Inc. v. Esguide, Inc., 186 F. (2d) 11

(2nd Cir.) ........................................................................ 21*
Chreste v. Commonwealth, 171 Ky. 77, 186 S. W. 919 . . . .  19* 
City of Bridgeport v. Equitable Title & Mortgage Co.,

106 Conn. 542, 138 A. 452 ........................... ..'...16* , 17*
City of Houston v. Jas. K. Dobbs Co., 232 F. (2d) 428

(5th Cir.) ........................................................................ 14*
Commonwealth v. Armour & Co., 118 Va. 242, 87 S. E.

610, a ff’d. 246 U. S. 1 .............................................34*, 36*



Commomvealth v. Carter, 126 Va. 469, 102 S. E. 58 . . . .  34* 
Commomvealth v. Dodson, 176 Va. 281, 11 S. E. (2d)

120 ...................................................................................  34*
Commonwealth v. Dupuy, 4 Clark 1, 6 Pa. Law J. 223 .16*, 17*
Commomvealth v. Maclin, 3 Leigh (30 Va.) 809 .......... 33*
Commonwealth v. Mason, 175 Pa. Super. 576, 106 A.

(2d) 877 ...........................................................................  46*
Concordia Fir'e Insurance Co. v. Illinois, 292 U. S. 535 .. 26*
Cone v. Ivinson, 4 Wyo. 203, 35 P. 933 .........................  49*
Cotting v. Kansas City Stock Yards Co., 183 U. S. 79 .. 28*
Crandall v. Nevada, 6 Wall. (U. S.) 36 .........................  23*
Davies v. Stowell, 78 Wis. 334, 47 N. W. 370 ..........16*, 20*
Davis v. Commomvealth, 17 Grat. (58 Va.) 617 ....2 3 * , 33* 
Davis v. County School Board of Prince Edward\ County,

Va., 103 F. Supp, 337, reversed 347 U. S. 483, re­
manded 349 U. S. 249, decree on remand 1 Race Rel.
L. Rep. 82, motion for further relief referred to one- 
judge District Court 142 F. Supp. 616, motion for 
further relief denied 149 F. Supp. 431, reversed 
sub nom. Allen v. County School Board of Prince 
Edward County, Va., 249 F. (2d) 462, cert, denied 
355 U. S. 953, motion for further relief denied in 
part 164 F. Supp. 768, reversed F. (2d) (decided

Page

May 5, 1959) .................................................................  22*
Doughty v. Grills, 260 S. W. (2d) 379 (Tenn.) ........... 19*
Elliott’s K. I. S. & C. Corp. v. State Corporation Commis­

sion, 123 Va. 63, 96 S. W. (2d) 353 .........................  32*
Faulkner v. South Boston, 141 Va. 517, 127 S. E. 380 .. 32*
Follett v. McCormick, 321 U. S. 573 .................................  19*
Fonden v. Parker, 11 Mees & W. 75 .................................  20*
Frost v. Paine, 12 Me. (3 Fairf.) I l l  .............................  16*
Gibson v. Gillespie, 4 W. W. Harr. (Del.) 331, 152 A.

589 ...................................................................................  20*
Government & C. E. O. C., CIO v. Windsor, 353 U. S.

364 ...................................................................................  13*
Gowen v. Nowell, 1 Me. (1 Greenl.) 292 ........................ 16*
Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 125 E. (2d)

cno o n *  A A *

Hannabass v. Ryan, 164 Va. 519, 180 S. E. 416 . .32*, 34*, 35* 
Harrison v. National Asso. for A. C. P., U. S. (decided

June 8, 1959) ....................... ............................13*. 15*, 41*
Hartford Steam Boiler Inspection & Insurance Co. v.

Harrsion, 301 U. S. 459 .....................................26,* 27*
Hildebrand v. State Bar, 18 Cal. (2d) 816, 117 P. (2d)

860 ...................................................................................  41*
Huahes v. Van B rug (fen, 44 N. M. 534, 105 P. (2d) 494 .. 48* 
In B e: Ades, 6 F.'Supp. 467 (D. C. M d .)....16* , 17*, 25*

45*, 49*
In Re: Mitgang, 385 111. 311, 52 N. E. (2d) 807 .......... 19*



In R e : Newell, 174 App. Div. 94, 160 X. Y. S. 275 .......... 19*
Jahn v. Champagne Lmmber Co., 157 F. 407 (D. C.

Wis.) ....................................................................... 20*, 21*
Joint Anti-Fascist Refugee Committee v. McGrath, 341

U. S. 123 .......................................................................  14*
Jones v. School Board of Alexandria, 4 Race Rel. 31,

33 23*
Jordon v. South Boston, 138 Ya. 838, 122 S. E. 265 .. 32*
Kelley v. Boyne, 239 Mich. 204, 214 N. W. 3 1 6 .............. 19*
Kilby v. County School Board of Warren County, unre­

ported (decided Sept. 8, 1958), affirmed 259 F. (2d)
497 ...................................................................................  23*

Konigsberg v. State Bar of California, 353 U. S. 252 .. 25* 
La Page v. United States, 146 F. (2d) 536 (8th Cir.) .. 46* 
Lewis v. Commonwealth, 184 Va. 69, 34 S. E. (2d) 389 .. 32* 
Matthews v. Commonwealth, 18 Grat. (59 Va.) 989 .. 33* 
Mayflower Farms v. Ten Eijek, 297 U. S. 266 ....2 6 * , 28*
McCloskey v. Tobin, 252 U. S. 107 ............................. 42*, 45*
McIntyre v. Thompson, 10 F. 531 (C. C. N. C.) .............  20*
McKay v. Commonwealth, 137 Va. 826, 120 S. E. 138 .. 32*
Meyers v. Nebraska, 262 U. S. 390 ...................................  25*
Miller v. Commonwealth, 172 Va. 639, 2 S. E. (2d)343 34* 35*
Millhiser Mfg. Co. v. Galleqo, 101 Va. 579, 44 S. E. 760 .. 33*
Mitgang, In Re: 385 111. 311, 52 N. E. (2d) 807 .............. 19*
Mobile & 0. R. Co. v. Etheridge, 84 Tenn. (16 Lea) 398 .. 16*
Mor’ey v. Loud, 354 U. S. 457 . . ......................... 26*, 27*, 28*
Morthland v. Lincoln National Life Ins. Co., 220 Ind. 692,

42 N. E. (2d) 41 .............................................................. 47*
Murdock v. Pennsylvania, 319 U. S. 105 .........................  19*
N. A. A. C. P. v. Patty, 159 F. Supp. 503 (D. C. Va.), 

vacated sub nom Harrison v. National Association 
for the Advancement of Colored People, IT. S.
(decided June 8, 1959) .................................14*, 36*, 41*

Nash v. Douglass, 12 Abb. Prac. N. S. 187 (N. Y.) . .41*, 42* 
National Asso. For The A. C. P. v. Alabama, 367 U. S.

449 ....................................................................13*, 15*, 41*
Newell, In R e : 174 App. Div. 94, 160 N. Y. S. 275 . . . .  19*
Nixon v. Herndon, 273 IT. S. 536 ......................................... 26*
Norfolk & W. Ry. Co., v. Virginia Ry. Co., 110 Va. 631,

66 S E 863 ............................... 33* 34*
Nye & Niss'en v. United States, 168 F. (2d) 846 .......... 49*
O’Connor v. Smith, 188 Va. 214, 49 S. E. (2d) 310 . . . .  32*
People v. Ficke, 343 111. 367, 175 N. E. 543 ............ 41*, 47*
People v. Gray, 52 Cal. App. (2d) 620, 127 P. (2d) 72 .. 20*
People v. Grout, 38 Misc. 181, 77 N. Y. S. 321 ................. 47*
People v. Juskoivitz, 173 Misc. 685, 18 N. Y. S. (2d)

897 ...................................................................................  46*
People v. Levy, 8 Cal. App. (2d) 763, 50 P. (2d) 509 .. 41*

Page



People v. Lewis, 365 111. 156, 6 N. E. (2d) 175 ....4 1 * , 47*
Pierce v. Society of Sisters, 268 U. S. 5 1 0 ................. 14*, 25*
Rahke v. State, 168 Ind. 615, 81 N. E. 584 .....................  46*
R e: Shay, 133 App. Div. 547, 118 N. Y. S. 146, a ff’d.

196 N. Y. 530, 89 N. E. 1112.......................    19*
Richmond A ss ’n. of Credit Men v. Bar Association, 167

Va. 327, 189 S. E. 153 .........................................17*, 42*
Royal Oak Drain Dist. v. Keefe, 87 F. (2d) 786 (6th

Cir.) .................................................................................  16*
Sampliner v. Motion Picture Patents Co., 255 F. 242 (2nd

Cir.) .................................................................................  20*
Sandefur-Julian Co. v. Stake, 72 Ark. 11, 775 AY. 506 .. 41* 
School Board v. Patterson, 111. A7a. 482, 69 S. E. 337 .. 36* 
Schwahe v. Estes, 202 Mo. App. 372, 218 S. AV. 908 . . . .  46* 
SchwaYe v. Board of Bar Examiners of the State of Neiv

Page

Mexico, 353 U. S. 232 ................................................  25*
Seattle T. & T. Co. v. Seattle, 86 AVasli. 594, 150 P. 1134 .. 41*
Sellers v. Dies. 198 Va. 49, 92 S. E. (2d) 486 .............. 32*
Skinner v. Oklahoma, 316 IT. S. 535 ................................. 26*
Slaughter House Cases, 16 AA7all. (U. S.) 36 .................  23*
Smith v. Cahoon, 283 IT. S. 553 .................................26*, 27*
Snider v. Wimberly, 327 Mo. 491, 209 S. AY. (2d) 239 .. 48*
Southern Railway Co. v. Greene, 216 U. S. 400 .............. 26*
Sp'ector Motor Service v. O’Connor, 340 U. S. 602, rev’g.

181 F. (2d) 150 (2nd Cir.) and aff’g. 88 F. Supp. 711
(I). C. Conn.) ................................................................  13*

Sped or Motor Service, Inc. v. Walsh, 15 Conn. Sup. 205 
aff’d. in part and rev’d. in part 135 Conn. 37, 61 A.
(2d) 89 ............................................................................ 13*

State v. Brown, 143 AA7is. 405, 127 N. AA7. 956 ...........  46*
State v. Fraker, 148 Mo. 143, 49 S. AY. 1017 ........... 47*
State v. Franco, 76 Utah 202, 289 P. 100 ....................  47*
State v. Nye, 56 AVkly. Bull. 273 (Ohio) ...............  41*
State ex rel. Nebraska Bar A ss’n. v. Basye, 138 Nebr.

806, 295 N. AV. 816 ........................................................  19*
iState ex re?. Wright v. Hinckle, 137 Nebr. 735, 291 N. AA7.

68 ............. '....................................................................... 19*
Sweatt v. Painter, 339 U. S. 629 ......................................... 22*
Sweezv v. New Hampshire, 354 U. S. 234 ..........13*, 15*, 18*
Terrell v. Burke Construction Co., 257 IT. S. 529 .......... 23*
Thomas v. Collins, 323 IT. S. 516 .....................................  15*
Thompson v. County School Board of Arlington County,

Va., 144 F. Supp. 239, affirmed 240 F. (2d) 59, cert, 
denied 353 IT. S. 911, motion to amend decree granted 
2 Pace Rel. L. Rep. 810, motion for further relief 
granted 159 F. Supp. 767, affirmed 252 F. f2d) 929, 
cert, denied 356 IT. S. 958, motion for further relief 
denied in part 166 F. Supp. 529, affirmed in part 263 
F. (2d) 226, remanded 264 F. (2d) 946 ..............22*, 23*



Truax v. Raich, 239 U. S. 33 . . . ......................... 14*, 23*, 26*
United States v. C. I. 0., 335 U. S. 106 .................... 18*
United States v. Haxriss, 347 U. S. 612 ...................  15*
United States v. Lancaster, 44 F. 885 (C. C. Ga.) _ 23*
United States v. Rumley, 345 U. S. 4 1 .......................  18*
Urick v. Appeal Board, 325 Mich. 599, 39 N. W. (2d) 85 .. 41* 
Village of Scribner v. Mohr, 90 Nebr. 21, 132 N. W. 734,

Ann. Cas. 1912D, 1287 ................................................  41*
Vitaphone Corp. v. Hutchison Amusement Co., 28 F.

Supp. 526 (D. C. Mass.) ................................................  16*
Waller v. Commomvealth, 192 Va. 83, 63 S. E. (2d) 713 .. 32*
Watkins v. United States, 354 U. S. 178 ................. 15*, 18*
Wiernan v. Updegraff, 344 U. S. 183 .............................14*, 18*
Yick Wo v. Hopkins, 118 U. S. 356 .................................  26*

Constitutions.
Constitution of the United States:

Page

First Amendment............................................ 14*, 15*, 45*
Fourteenth Amendment ..2*, 13*, 14*, 15*, 22*, 23*

24*, 28*, 45*, 49*
Statutes.

Colorado Rev. Stat., Sec. 40-7-41 .....................................  20*
Illinois Stats. Anno., Chap. 38, Sec. 66 .........................  20*
Virginia Acts of the General Assembly, Extra Session 1956:

Chapter 31 ...................................................................... 2*
Chapter 32 ...................................................................... 2*
Chapter 33 . . . .1 * , 2#, 3*, 4*, 5*, 6*, 7*, 8*, 13*, 14* 

15*, 18*, 19*, 22*, 23*, 25*, 27*, 28*,
29*, 31*, 32*, 34*, 36*, 37*, 38*, 39*,

40*, 41*, 42*, 46*, 46*
Chapter 35 ................................................................2*, 36*

Page
Chapter 36 . . . .1 * , 2*, 3*, 5*, 6*, 7*, 8*, 13*, 14*, 15*, 

18*, 19*, 20*, 22*, 23*, 24*, 25*, 26*,
27*, 28*, 29*, 30*, 31*, 32*, 34*, 36*,

37*, 38*, 46*, 47*, 49*
Virginia Code (1950):

Secs. 18-349.9 to 18-349.30 ......................................... 2*
Secs. 18-349.31 to 18-349.37 ......................................... 1*
Section 54-74 ..................... 1*, 19*, 28*, 29*, 38*, 39*
Section 54-78 ..................... 1*, 19*, 28*, 29*, 30*, 38*, 39*
Section 54-79 ......................... 1*, 19*, 29*, 30*, 38*, 39*
Section 54-82 ............................................................ 30*, 32*



United States Code:
Page

Title 28, See. 1343(3) ................................................  24*
Title 42, Sec. 1983 ........................................................  24*

Other Authorities. 
American Bar Association:

Canons of Professional Ethics, Canon 35 ....1 7 * , 25*,
42*, 45*

Opinions of the Committee on Professional Ethics
(1957) ........................................................17*, 43*, 45*

American Jurisprudence:
Volume 5, pp. 425-426 .......................................... 19*, 20*
Volume 10, p. 549 .................................................. 21*, 22*

Association of the Bar of the City of New York & New 
York County Lawyers’ Association, Opinions of the 
Committee on Professional Ethics (1956) . ...15*-16*,

17*, 18*
Blackstone’s Commentaries, Vol. 4, p. 135 .....................  20*
Brownell, Legal Aid in the United States (1951) ..18*, 21* 
Cohen, “ The Origins of the English Bar,”  81 Law Q.

Rev. 5 6 .............................................................................  21*
Federal Rules of Civil Procedure, Rule 23(2) (3) . . . .  18* 
McGuire, “ Poverty and Civil Litigation,”  36 Harv. L.

Rev. 361........................................   21*
Miehie’s Jurisprudence, Vol. 17, p. 320 .........................  42*
Mirrors of Justices, 7 Sel. Soc. 14 (1893) .....................  21*
New York Times, Sept. 8, 1957, p. 118 .............................  22*
Radin, “ Maintenance by Champerty,”  24 Cal. L. Rev. 48

(1935) ................. *.................... ' .....................................  21*
Rules of the Supreme Court of Appeals of Virginia, Rule

5 :12(d) . . . ....................................................   38*
Schlesinger, “ Biography of a Nation of Joiners,”  50 Am.

Hist. Rev. 1 (1944)'........................................................  15*
Schlesinger, Crisis of the Old Order (1957) ............. 15*, 21*
Smith, Justice and the Poor (1921) ......................... 18*, 22*
Winfield, “ The Historv of Maintenance and Champ­

erty,”  35 Law Q. Rev. 50 (1919) .............................  20*



IN THE

Supreme Court of Appeals of Virginia
AT RICHMOND

Record No. 5097

N. A. A. C. P. LEGAL DEFENSE AND EDUCATIONAL 
FUND, INCORPORATED, Appellant,

versus

ALBERTIS S. HARRISON, JR., ATTORNEY GENERAL 
OF VIRGINIA, T. GRAY HADDON, COMMON­
W EALTH ’S ATTORNEY FOR THE CITY OF RICH­
MOND, VIRGINIA, WILLIAM L. CARLETON, COM­
MONWEALTH’S ATTORNEY FOR THE CITY OF 
NEWPORT NEWS, VIRGINIA, LINWOOD B. TABB, 
COMMONWEALTH’S ATTORNEY FOR THE CITY 
OF NORFOLK, VIRGINIA, WILLIAM J. HASSAN, 
COMMONWEALTH’S A T T O R N E Y  FOR THE 
COUNTY OF ARLINGTON, VIRGINIA, AND FRANK 
N. WATKINS, COMMONWEALTH’S ATTORNEY 
FOR THE COUNTY OF PRINCE EDWARD, VIR­
GINIA, Appellees.

PETITION FOR APPEAL.

To the Honorable Judcfes of the Supreme Court of Appeals
of Virginia:

Appellant, N. A. A. C. P. Legal Defense and Educational 
Fund, Incorporated, respectfully represents that it is ag­
grieved by a final order of the Circuit Court of the City of 
Richmond, Virginia, entered on February 25, 1959, declaring 
that Chapters 33 and 36 of the Acts of the General Assembly 
of Virginia, Extra Session of 1956 (Sections 54-74, 54-78, 
54-79, as amended, and Sections 18-349.31 to 18-349.37, in-



elusive, of the Code of Virginia of *1950), construed and 
2* interpreted in the light of the constitutional contentions 

theretofore made by appellant in the United States Dis­
trict Court for the Eastern District of Virginia, Richmond 
Division, in the action styled “ N. A. A. C. P. Legal Defense 
and Educational Fund, Incorporated, v. Kenneth. C. Patty, 
Attorney General for the Commomvealth of Virginia, et al.,”  
being Civil Action No. 2436, viz., that enforcement of such 
statutes would infringe rights secured by the Due Process 
and Equal Protection Clauses of the Fourteenth Amendment 
of the Constitution of the United States, apply to and pro­
hibit certain of the customary activities of appellant, its 
officers, members, contributors, voluntary workers, and at­
torneys employed or retained by it or to whom it may con­
tribute monies or services.

A transcript of the record in this case is herewith pre­
sented.

STATEMENT OF MATERIAL PROCEEDINGS IN THE
LOWER COURT.

This suit was brought in the Circuit Court of the City 
of Richmond, for a judgment declaratory of the construction 
of the aforesaid statutes as they may affect appellant, its 
officers, members, contributors or voluntary workers, or at­
torneys retained or employed by it or to whom it may con­
tribute monies, because of appellant’s activities in the past 
or the continuance of like activities in the future, in the light 
of appellant’s contentions that enforcement of these statutes 
would deny it, its officers, members, contributors or voluntary 
workers, or attorneys retained or employed by it or to whom 
it may contribute monies, their liberty and property without 
due process of law and the equal protection of the laws 
secured by the Fourteenth Amendment of the Constitution of 
the United States.

On November 29, 1956, appellant had instituted in the 
United States District Court for the Eastern District of 
Virginia, Richmond Division, Civil Action No. 2436, seeking, 
on the constitutional grounds summarized above, a declara­
tory judgment as to, and an injunction restraining the en­
forcement of, Chapters 31, 32 and 35 (Va. Code 1958 Supp., 
Sees. 18-349.9 to 18-349.30), as well as Chapters 33 and 36 

here involved, of the Acts of the General Assembly 
3* *of Virginia, Extra Session 1956 (PI. Ex. R., p. 2).

Thereafter, following a hearing of this case along with 
a similar case brought by another organization, the National 
Association for the Advancement of Colored People, the

2 Supreme Court of Appeals of Virginia



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 3

Court held that Chapters 33 and 36 were too vague and 
ambigious to warrant decision as to their constitutionality 
prior to their construction by the Virginia courts (159 F. 
Supp. 503; PL Ex. R-7) and entered judgment retaining juris­
diction as to Chapters 33 and 36 for a reasonable time “ pend­
ing the determination of such proceedings in the state courts 
as the plaintiffs may see fit to bring to secure an interpreta­
tion of these two statutes”  and providing that “ plaintiffs 
may petition this Court for further relief if at any time they 
deem it their best interest so to do”  (PI. Ex. R., p. 8).

Accordingly, on May 20, 1958, appellant initiated the in­
stant case for a declaratory judgment construing Chapters 
33 and 36 in the light of the constitutional objections pre­
sented to the District Court and prayed for an adjudication 
as to whether either of said statutes, properly construed in 
the light of those constitutional contentions under settled 
rule of statutory construction, applies to or prohibits ap­
pellant’s activities. The appellees having answered, this 
case was tried on November 10-12, 1958, together with a 
similar suit brought by the National Association for the 
Advancement of Colored People. On January 21, 1959, the 
Circuit Court rendered an opinion and on February 25, 1959, 
entered a final order declaring, inter alia:

4. That the following enumerated activities of complain­
ants, and those persons or attorneys connected with them, 
when conducted in the manner shown by the evidence in these 
cases, amount to either an improper solicitation of legal or 
professional business or employment within the provisions 
of Chapter 33 or an inducement to commence or prosecute 
law suits within the prohibitions contained in Chapter 36, 
or both, whether conducted separately or in conjunction with 
the permitted activities hereinbefore mentioned:

A. Contribution to any person or group, of advice respect­
ing his or its legal rights in a matter, case or proceeding in­
volving an issue of racial segregation or discrimination or any 

other issue.
4* *B. Expending of monies to defray the costs and ex­

penses, in whole or in part, of litigation involving an 
issue of racial segregation or discrimination, or any other 
issue.

C. Assisting litigants in such litigation, cases or proceed­
ings by persuading them to express and assert legal riadits 
by receiving or accepting assistance in the nature of advice 
and monies, within the contemplation of A & B above.

D. Contributions to any person or group, of monies toward



4 Supreme Court of Appeals of Virginia

counsel fees and other expenses of litigation or the services 
of attorneys in a matter, case or proceeding involving an 
issue of racial segregation or discrimination, or any other 
issue.

5. That the following enumerated activities of attorneys, 
when conducted in the manner shown by the evidence in 
these cases, amount to a violation of the provisions of Chap­
ter 33:

E. (1) Acceptance by an attorney of assistance from the 
complainants in the form of legal advice, monies toward 
counsel fees and other expenses of litigation in a matter, 
case or proceeding involving an issue of racial segregation 
or discrimination, or any other issue.

(2) Acceptance by an attorney of employment by a person 
or group for the purposes of rendering legal service to such 
person or group in a matter, case or proceeding in which 
either complainant has furnished or will furnish assistance 
in the nature of advice, monies toward counsel fees and other 
expenses within the contemplation of subparagraphs A, B 
and D of paragraph 4 and E (1) above.

(3) Acceptance by an attorney of employment by either 
complainant for purposes of rendering legal services to a 
person or group desiring his service in a matter, case, or 
proceeding involving an issue of racial segregation or dis­
crimination, or any other issue.

6. That those activities prohibited to either of the com­
plainants are likewise prohibited to the complainants’ affili­
ates, officers, members, attorneys, voluntary workers, or 
others within the control of complainants; * * *

On April 21, 1959, appellant’s notice of appeal and assign­
ments of error were filed in said Court.

ERRORS ASSIGNED.

Appellant submits that the order appealed from is er­
roneous in the following particulars:

5# *First: The Court erred in declaring that contribu­
tion by an attorney employed or retained by, or associ­

ated with, appellant of advice to a person or group, respect­
ing his or its legal rights in a matter, case or proceeding in­
volving an issue of racial segregation or discrimination



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 5

amounts to either an improper solicitation of legal or pro­
fessional business or employment within the provisions of 
Chapter 33, or an inducement to commence or prosecute law 
suits within the prohibitions contained in Chapter 36, or both, 
for the reason that neither of said statutes, properly con­
strued in the light of appellant’s constitutional contentions 
under settled rules of statutory construction, applies to or 
prohibits said activities.

Second: The Court erred in declaring that the expendi­
ture of monies by appellant to defray the costs and expenses, 
in whole or in part, of litigation involving an issue of racial 
segregation or discrimination amounts to either an improper 
solicitation of legal or professional business or employment 
within the provisions of Chapter 33, or an inducement to 
commence or prosecute law suits within the prohibitions 
contained in Chapter 36, or both, for the reason that neither 
of said statutes, properly construed in the light of appellant’s 
constitutional contentions under settled rules of statutory 
construction, applies to or prohibits said activities.

Third: The Court erred in declaring that assistance by
appellant, its officers, members or voluntary workers, or at­
torneys employed or retained by, or connected with it, to 
litigants in litigation, cases or proceedings involving an issue 
of racial segregation or discrimination by persuading them 
to express and assert legal rights by receiving or accepting 
assistance in the nature of advice respecting their legal 
rights therein and monies to defray the costs and expenses 
thereof amounts to either an improper solicitation of legal 
or professional business or employment within the provisions 
of Chapter 33, or an inducement to commence or prosecute 
law suits within the prohibitions contained in Chapter 36, 
or both, for the reason that neither of said statutes, properly 
construed in the light of appellant’s constitutional conten­
tions under settled rules of statutory construction, applies to 

or prohibits said activities.
6* ^Fourth : The Court erred in declaring that contribu­

tions by appellant to a person or group of monies to­
ward counsel fees and other expenses of litigation or of the 
services of attorneys in a matter, case or proceeding in­
volving an issue of racial segregation or discrimination 
amounts to either an improper solicitation of legal or pro­
fessional business or employment within the provisions o f 
Chapter 33, or an inducement to commence or prosecute law 
suits within the prohibitions contained in Chapter 36, or both, 
for the reason that neither of said statutes, properly con­
strued in the light of appellant’s constitutional contentions



under settled rules of statutory construction, applies to or 
prohibits said activities.

F ifth : The Court erred in declaring that acceptance by
an attorney of assistance from appellant in the form of legal 
advice, monies toward counsel fees and other expenses of 
litigation in a matter, case or proceeding involving an issue 
of racial segregation or discrimination amounts to a viola­
tion of the provisions of Chapter 33, for the reason that 
said statute, properly construed in the light of appellant’s 
constitutional contentions under settled rules of statutory 
construction, does not apply to or prohibit said activities.

Sixth: The Court erred in declaring that acceptance by
an attorney of employment by a person or group for the 
purpose of rendering legal services to such person or group 
in a matter, case or proceeding involving an issue of racial 
segregation or discrimination wherein appellant has fur­
nished or will furnish assistance in the nature of advice re­
specting his or its legal rights therein, or monies toward 
counsel fees or costs and other expenses thereof, amounts to 
a violation of the provisions of Chapter 33, for the reason 
that said statute, properly construed in the light of appel­
lant’s constitutional contentions under settled rules of statu­
tory construction, does not apply to or prohibit said activities.

Seventh: The Court erred in declaring that acceptance
by an attorney of employment by appellant for the purpose 
of rendering legal services to a person or group desiring his 

services in a matter, case or proceeding ‘ involving an 
7* issue of racial segregation or discrimination amounts to 

a violation of the provisions of Chapter 33, for the 
reason that said statute, properly construed in the light of 
appellant’s constitutional contentions under settled rules of 
statutory construction, does not apply to or prohibit said 
activities.

QUESTIONS INVOLVED IN THE APPEAL.

Presented for consideration and decision are the following 
questions:

First: Does the contribution of advice by an attorney em­
ployed or retained by, or associated with, appellant to a 
person or group, who requests or whose attorney requests the 
advice, in a matter, case or proceeding involving an issue of 
racial segregation or discrimination amount to either an 
improper solicitation of legal or professional business or em­
ployment within the provisions of Chapter 33 or an induce­
ment to commence or further prosecute law suits within the

6 Supreme Court of Appeals of Virginia



prohibitions of Chapter 36, or both, properly construed in 
the light of appellant’s constitutional contentions under 
settled rules of statutory construction?

Second: Does the expenditure of monies by appellant to 
defray in whole or in part the costs and expenses of litigation 
involving an issue of racial segregation or discrimination 
when the litigant therein, or his attorney, has requested such 
financial assistance amount to either an improper solicita­
tion of legal or professional business or employment within 
the provisions of Chapter 33 or an inducement to commence 
or further prosecute law suits within the prohibitions of 
Chapter 36, or both, properly construed in the light of ap­
pellant’s constitutional contentions under settled rules of 
statutory construction?

Third: Does the contribution of the services of an at­
torney employed or retained by, or associated with, appellant 
to a person or group, who requests or whose atttornev re­
quests the services, in a matter, case or proceeding involving 
an issue of racial segregation or discrimination amount to 
either an improper solicitation of legal or professional busi­
ness or employment within the provisions of Chapter 33 or 
an inducement to commence or further prosecute laAv suits 
within the prohibitions of Chapter 36, or both, properly con­
strued in the light of appellant’s constitutional contentions 

under settled rules of statutory construction?
8* *Fourth: Does advocacy by appellant that persons

subjected to racial segregation or discrimination assert 
their legal rights in appropriate litigation and, at the re­
quest of such persons or their attorneys, its contribution of 
legal advice, or the services of an attorney, or monies toward 
defraying the expenses of the litigation, amount to either an 
improper solicitation of legal or professional business or 
employment within the provisions of Chapter 33 or an in­
ducement to commence or further prosecute law suits within 
the prohibitions of Chapter 36, or both, properly construed 
in the light of appellant’s constitutional contentions under 
settled rules of statutory construction?

Fifth : Does acceptance by an attorney of assistance from 
appellant in the form of legal advice or monies toward coun­
sel fees and other expenses of litigation in a matter, case or 
proceeding involving an issue of racial segregation or dis­
crimination amount to a violation of the provisions of Chap­
ter 33 when properly construed in the light of appellant’s 
constitutional contentions under settled rules of statutory 
construction?

Sixth: Does acceptance by an attorney of emplovment by 
a person or group for the purpose of rendering legal services

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 7



8

in a matter, case or proceeding involving an issue of racial 
segregation or discrimination where appellant has contri­
buted or will contribute, at the request of the litigant or his 
attorney, assistance in the form of advice respecting the 
litigant’s legal rights therein or monies toward counsel fees 
and other expenses thereof amount to a violation of the pro­
visions of Chapter 33 when properly construed in the light of 
appellant’s constitutional contentions under settled rules of 
statutory construction ?

Seventh: Does acceptance by an attorney of employment 
or retainer by, or association with, appellant for the purpose 
of rendering legal services to a person or group requesting 
appellant’s assistance in a matter, case or proceeding involv­
ing an issue o f racial segregation or discrimination amount 
to a violation of the provisions of Chapter 33 when properly 
construed in the light of appellant’s constitutional contentions 
under settled rules of statutory construction1?

9* ‘ STATEMENT OF THE FACTS.

Pursuant to stipulation of counsel the Circuit Court ad­
mitted in evidence the record of the proceedings in the federal 
court, see pp. 2-3, ante, and all evidence material to the issues 
i-aised below and involved in this appeal is contained in the 
transcript of the trial proceedings in that case (Tr., pp. 5-17; 
see Tr., pp. 364-365). Eeferences to that transcript are cited 
as “ PI. Ex. K-9, p. . ”  Neither appellant nor appellees in­
troduced additional evidence as to the character and activi­
ties of appellant as to the matters now before this Court.

Appellant, hereinafter sometimes referred to as the 
“ Fund,”  is now and since March 20, 1940, has been a non­
profit membership corporation incorporated under the laws 
of the State of New York; and it is now, and since October 
30, 1956, has been duly authorized by the State Corporation 
Commission to function as a foreign corporation in Virginia 
for the following principal purposes:

(a) To render legal aid gratuitously to such Negroes as 
may appear to be worthy thereof, who are suffering legal 
injustices 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, compile 
and publish facts, information and statistics concerning 
educational facilities and educational opportunities for Ne­
groes and the inequality in the educational facilities and

Supreme Court of Appeals of Virginia



educational opportunities provided for Negroes out of public 
funds; and the status of the Negro in American life.

This charter was approved by a New York Court without 
objection from any of the several bar associations so that the 
Fund thereby obtained the right under New York law to 
operate as a legal aid society (PI. Ex. 1 with complaint; 
PI. Ex. R-9, p. 311).

The Fund is governed by a Board of Directors which, 
under its charter, consists of not less that five and not more 
than fifty members (PL Ex. 1 with complaint; PI. Ex. R-9, 
p. 252) and is headed by the usual executive officers (PI. Ex.

R-9, p. 252). It operates from an office in New York 
10* City its only #office (PI. Ex. R-9, pp. 252-253); it has 

no affiliated or subordinate units (PI. Ex. R-9, p. 252).
The Fund has pursued its authorized corporate objectives 

in Virginia and elsewhere by conducting research and col­
lecting, collating and compiling facts, information and statis­
tics concerning the extent of racial segregation and discrimi­
nation, the lack of scientific basis therefor, and the benefits 
of desegregation to humanity and governments, state and 
federal; by compiling scientific data upon racial and other 
minority discrimination within the United States; by obtain­
ing legal research from lawyers, law school professors and 
others in the field of constitutional law, with particular re­
ference to civil rights of individuals; by rendering, upon 
request, legal aid and assistance to litigants seeking redress 
for denial of civil rights by reason of race or color, where the 
litigant is financially unable to bear the cost of the litigation; 
and by informing citizens, through public meetings, speeches, 
lectures and other media as to their legal rights (PI. Ex. 
R-9, pp. 258, 267-268). It has contributed monies, legal serv­
ices, data, and the results of expert studies in a large number 
of civil rights cases litigated both within and without Vir­
ginia, including nearly every major litigation since 1940 in­
volving a question of the validity of governmental action 
predicated upon race (PI. Ex. R-9, pp. 258-262). By virtue 
of its efforts to secure equal rights and opportunities in the 
United States, the Fund has come to be regarded as an im­
portant instrument through which individuals may act in their 
efforts to combat unconstitutional color restrictions and it 
occupies a unique position as the only organization gratuit­
ously providing such assistance and services on a national 
basis (PI. Ex. R-9, pp. 258-262, 274, 278-a, 318). In con­
formity with its charter, the Fund does not attempt to in­
fluence legislation by propanganda or otherwise (PI. Ex. R-9, 
p. 257).

N.A.A.C.P. v. A. S. Harrison, Jr., Attv. Gen. of Va. 9



10 Supreme Court of Appeals of Virginia

In the prosecution of this program the Fund employs a 
full-time staff of attorneys in its office in New York City, en­
gages on an annual retainer basis five additional attorneys 
outside of New York, including one in Richmond, Virginia, 
engages local attorneys for investigation, research and other 

legal services in particular cases, and utilizes the volun- 
11* tary services *of approximately a hundred lawyers and 

a number of social scientists serving without compensa­
tion throughout the United States, some of whom are in the 
State of Virginia (PL Ex. R-9, pp. 252, 254, 258-262, 265-268, 
270, 284, 320).

The Fund derives all of its revenue from contributions 
solicited from individuals and corporations in Virginia and 
elsewhere (PI. Ex. R-9, pp. 277-a-277-b). There are no mem­
bership dues (PI. Ex. R-9, p. 277). One of its committees, 
known as the Committee of One Hundred, consisting of promi­
nent persons who have joined together for the purpose of 
raising the money necessary to keep the organization func­
tioning, sends out letters four times a year throughout the 
country (PL Ex. R-9, pp. 277-b, 279). A smaller source of 
revenue consists in contribution soliciting at small luncheons 
and dinners (PL Ex. R-9, p. 277-b). Most of the money 
comes from small contributions, but some monies are received 
from charitable foundations, the largest of which was $15,- 
000.00 and the aggregate of which is less than $50,000.00 
a year (Pl. Ex. R-9, pp. 283-284).

Since 1954 the Fund’s income rose steadily until 1956 when 
it dropped to $351,283.32 (PL Ex. R-9, pp. 277b, 318), due to 
the fact that the Fund’s volunteer solicitators had to drop 
Texas from the list of states in which services and assistance 
were available— the state having restrained its operations 
during that time (Pl. Ex. R-9, pp. 278, 279). Another drop 
is reflected in the comparative income for the first eight 
months of 1957 and that for the same period in 1956: $152,- 
000 and $246,000, respectively (Pl. Ex. R-9, p. 278), i. e., 
after the precariousness of Fund operations in Virginia was 
widely publicized.

While studies by professional fund raising advisors reveal 
that the Fund’s income from Virginia cannot be determined 
precisely because many Virginia contributors work in and 
mail their contributions from Washington, Fund income from 
Virginia to the extent that is shown on the books shows a de­
cline from $6,256.19 in 1955 to $1,859.20 in 1956 to $424.00 for 
the first two-thirds of 1957 (Pl. Ex. R-9, p. 280).

As to the Fund expenditures for services in Virginia, ex­
clusive of the services and personal counsel contributed 

12* by the New York Staff in *Virginia litigation (e. g., 
see Pl. Ex. R-9, p. 319), the amounts are $6,344.39 in



1954, $6,000.00 in 1955, $6,490.00 in 1956 and $3,500.00 in 
1957 for the first eight months (PI. Ex. R-9, p. 281).

There is no dispute on the record as to the effect of the 
assailed statutes upon the operations of the Fund in Vir­
ginia, especially in the present atmosphere of fear and un­
easiness: contributions have dwindled and will cease (PI. 
Ex. R-9, pp. 280, 281) with a resulting cessation of contri­
butions from the intransigent South (PI. Ex. R-9, p. 283); 
many lawyers, white as well as Negro, would not work for 
or with the Fund (PI. Ex. R-9, pp. 284, 324, 331, 338); and 

, would restrain the Fund from participating in civil rights 
litigation and ultimately destroy it (PI. Ex. R-9, p. 285).

The Fund assists in litigation only when specifically re­
quested to do so by the litigant or his attorney (PI. Ex. R-9, 
pp. 253, 270-271, 272, 319). Requests from Virginia may be 
addressed to its New York Office or to its regional counsel in 
Virginia (PI. Ex. R-9, p. 270). The Fund makes its own 
decision in each case as to whether it will assist (PI. Ex. 
R-9, pp. 254, 272-273), and in no event is assistance forth­
coming unless the particular case is basically meritorious 
and involves an issue of denial of civil rights on the basis of 
race or color (PL Ex. R-9, pp. 253-254, 255-256). The as­
sistance afforded may consist in advice, data, services and 
money, including the entire cost of litigation and attornev’s 
fees (PL Ex. R-9, pp. 254, 255-256, 264, 265, 319-320). This 
assistance may he afforded to litigants who have retained 
lawyers not connected with either the Fund or the National 
Association for the Advancement of Colored People. (PL 
Ex. R-9, pp. 274-275, 290), and the legal services supplied 
by the Fund may he rendered either by a staff attorney, an 
annually retained regional attorney, or by an attorney spe­
cially engaged for the purpose (PL Ex. R-9, pp. 265-266, 270). 
Salaried and annually retained attorneys do not receive extra 
compensation in such instances (PL Ex. R-9, pp. 265, 274), 
and once the attorney-client relation is established, the Fund 
neither reserves nor exercises any control over the litigation, 
this being a matter for the litigant and the attorney conform­
able to the Canons of Legal Ethics (PL Ex. R-9, pp. 256, 352- 
353).

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 11

13* *APPELLANT’S CONSTITUTIONAL CONTEN­
TIONS IN THE FEDERAL FORUM: CHAPTERS 33 
AND 36 ABRIDGE FREEDOMS OF EXPRESSION 
AND ASSOCIATION AND VIOLATE THE DUE PRO­
CESS AND EQUAL PROTECTION CLAUSES OF 
THE FOURTEENTH AMENDMENT.



12 Supreme Court of Appeals of Virginia

Chapters 33 and 36, both of which relate to and provide 
penal and disciplinary sanctions for improper practice of 
law, respectively amend and expand the provisions of the 
Virginia Code defining “ unprofessional conduct”  and the 
offense of “ running and capping”  or “ ambulance chasing,”  
Sections 54-74, 54-78, 54-79 (PL Ex. No. 9, p. 507), and for­
mulate a statutory definition of the common law offense of 
maintenance (PI. Ex. 9, p. 506). Appellant, conformably 
to the ruling of the District Court (159 F. Supp. 503, 534; PI. 
Ex. 7, p. 42) sought from the Circuit Court a construction 
or interpretation of these statutes in the light of the con- . 
stitutional contentions presented by them to the federal 
forum. See Government & C. E. 0. C., CIO v. Windsor, 353 
U. S. 364; Spector Motor Service v. O’Connor, 340 IT. S. 602, 
which reversed 181 F. (2d) 150 (2nd Cir.) and affirmed 
Spector Mot of Service v. McLaughlin, 88 F. Supp. 711 (D. 
Conn.). Cf. Spector Motor Service, Inc. v. Walsh, 15 Conn. 
Sup. 205, affirmed in part and reversed in part 135 Conn. 37,
61 A. (2d) 89._

Those constitutional contentions were presented to the 
Circuit Court by the complaint, in the brief and on oral argu­
ment therein. In short, they were and are that enforcement 
of Chapters 33 and 36 against appellant, its officers, mem­
bers, employees, contributors, voluntary workers, and at­
torneys employed or retained by it, or to whom they may 
contribute advice or monies, abridges freedoms of expression 
and association and violates rights secured under the Due 
Process and Equal Protection Clauses of the Fourteenth 
Amendment.

That appellant may assert the constitutional rights of 
members, employees, contributors and others closely related 
to its activities or, in other words, has standing to litigate 
with respect to the effect of contested legislation upon such 
persons is, of course, now firmly established in our constitu­
tional jurisprudence. National Asso. For The A. C. P. v.

Alabama, 357 U. S. 449; Sweezy v. New Hampshire, 354 
14* U. S. 234, 250; *Bafrows v. Jackson, 346 U. S. 249;

Joint Anti-Fascist Refugee Committee v. McGrath, 341 
U. S. 123, 159, 187; Pierce v. Society of Sisters, 268 IT. S. 
510: Buchanan v. Worley. 245 U. S. 60; Truax v. Raich, 239 
IT. S. 33; BCewer v. Hoxie School Dist. No. 46, 238 F. (2d)
91 (8th C ir.); City of Houston v. Jas. K. Dobbs Co., 232 F. 
(2d) 428 (5th C ir.); N. A. A. C. P. v. Patty, 159 F. Supp. 503, 
529 (D. C. Va.), vacated on other grounds sub nom Harrison 
v. National Association for the Advancement o f  Colored 
People, U. S. (decided June 8, 1959).



A. The Offenses Created By Chapters 33 and 36 Are De­
fined So Broadly That Activities Related To The Exercise 
Of First Amendment Freedoms Are Made Criminal.

Appellant is a non-profit membership corporation engaged 
in activities aimed at vindicating and establishing the rights 
of Negroes to be free from racial discrimination. It has a 
relatively small membership but enjoys wide support of 
contributors through the nation, some of whom are in the 
State of Virginia. Primarily, the Fund is a medium through 
which its members and contributors may pool their re­
sources to furnish legal aid to worthy Negroes who may 
assert in meritorious litigation rights denied or abridged 
because of race (PI. Ex. R-9, pp. 254-256, 258-262, 277). It 
also does educational work in the form of distributing liter­
ature, giving lectures, etc., to help further civil rights (PI. 
Ex. R-9, pp. 258, 267-268).

Appellant, therefore, is in essence a medium of expression 
for those who express or assert opposition to racial degrega- 
tion or discrimination by instituting or prosecuting litiga­
tion challenging it in a judicial or administrative forum. 
Whether speech is expressed individually or, as has become 
more and more necessary in contemporary society, in con­
cert, it is protected by the great restraints Avhich were 
initially written into the First Amendment and made ap­
plicable to the states by the Fourteenth. As Justice Frank­
furter wrote in Wieman v. Updegraff, 344 U.S. 183, 195, 
“ joining is an exercise of the rights of free speech and 
free inquiry.”  It is significant that some of the major cases 
of recent years involving free speech have involved con­
certed activity and that the constitutional protections of 

free speech have been unquestionably held applicable 
15* to them. *See, e.g., Watkins v. United States, 354 U.S.

178, Siveezy v. New Hampshire, 354 U. S. 234; United 
States v. Harriss, 347 U.S. 612; American Communications 
v. Doiids, 339 U.S. 382; Thomas v. Collins, 323 U.S. 516.

Today it is the rare free speech case which involves the 
individual street-corner speaker, for as Mr. Justice Jackson 
pointed out in Thomas v. Collins, supra, free speech ques­
tions today do not arise unencumbered by purportedly valid 
regulations of daily business activities, 323 U.S. at 546, 547; 
“ It is not often in thise country that we now meet with 
direct and candid efforts to stop speaking or publication as 
such. Modern inroads on these rights come from associating 
the speaking with some other factor which the state may 
require so as to bring the whole within official control.”  
Such an inroad on the freedoms of expression and associa­

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 13



14

tion has been made by Virginia where, under the guise of 
protecting the administration of justice, Chapters 33 and 
36 expressly prohibit group support of civil rights litigation 
by and through appellant as well as effectively proscribe 
speech which proffers assistance in such suits. This, we 
submit, Virginia cannot do because it abridges rights se­
cured under the First Amendment and shielded against state 
action by the Fourteenth Amendment. National Asso. For 
The A.C.P. v. Alabama, 357 U.S. 449. _

Croup sponsorship of litigation is as indigenous to 
twentieth century America as is group sponsorship of wel­
fare and charities. See Schesinger, Crisis Of The Order 
(1957); Schlesinger, “ Biography of a Nation of Joiners,”  
50 Am. Hist. Rev. 1 (1944). It generally occurs after a group 
or some member of the group has urged the initiation of 
a lawsuit or the support of a pending case to secure some 
legal right in which the group has a special or general 
interest. Counsel is then either chosen by the group, or the 
services of a volunteer are accepted, or the litigant’s at­
torney is paid by the group. Other costs of the litigation are 
generally borne in whole or in part by the group. And in 
most cases the group appeals to its members or to the public 
for financial support. See Association of the Bar of the 

City of New York & New York County Lawyers’ 
16* * Association, Opinions Of The Committeeb On Pro­

fessional Ethics, Ops. No. 113, 170, 210, 320, 321, 343, 
585, 707 (1956).

No court in the United States has ever denied the right 
of individual or group sponsorship of litigation, such as is 
here involved, where there is no agreement to share the 
proceeds and where the members of the group have a com­
mon or general or patriotic interest in the principle of law 
to be established. In cases in which this right has been 
challenged the courts have expressly upheld it despite con­
tentions that is was barratrous, champertous, or maintenous 
activity, or that it constituted malpractice or unethical 
solicitation and procurement of legal business. See Brannon 
v. Stark, 185 F. 2d 871 (D C. Cir.), a ff’d 342 U.S. 451; 
Gunnels v. Atlanta Bar Assn., 191 Ga. 366, 12 S.E. 2d 602; 
Brush v. Carbondale, 299 111. 144, 82 N.E. 252; Davies v. 
Stowell, 78 Wis. 334, 47 N.W. 370; Royal Oak Drain Dist. 
v. Keefe, 87 F. 2d 786 (6th C ir.); Vitaphone Corp. v. Hutchi­
son Amusement Co., 28 F. Supp. 526 (D. C. Mass.). See also 
In Re Ades, 6 F. Supp. 467 (D. C. M d.); Bigeloiv v. Old 
Dominion Copper Mining & Smelting Co., 74 N. J. Eq. 457, 
71 A. 153; Mobile & O. R. Co. v. Etheridge, 84 Tenn. (16 
Lea) 398; Frost v. Paine, 12 Me. (3 Fiarf.- III. Gowen v.

Supreme Court of Appeals of Virginia



Nowell, 1 Me. (1 Greenl.) 292; City of Bridgeport v. Equit­
able Title & Mortgage Co., 106 Conn. 542, 138 A. 452; Com­
monwealth v. Dupuy, 4 Clark 1, 6 Pa. Law J. 223.

Brannon v. Starli, supra, upheld the right of certain hand­
lers of milk to finance the litigation of certain milk pro­
ducers. Gunnels v. Atlanta Bar Assn., supra, upheld the 
right of the Atlanta Bar Association to furnish counsel for 
the litigation of those who had been victims of the loan 
sharks. Brush v. Carbondale, supra, upheld the right of 
citizens to finance an appeal by the city in a test case. Davis 
v. Stowell, supra, upheld the right of buyer's of worthless 
stock to prosecute a test case brought by plaintiff to deter­
mine defendant’s liability, each buyer contributing to the 
expense of plaintiff’s case. Royal Oak Drain Dist. v. Keefe, 
supra, upheld the right of a bondholders’ protective com­
mittee to bring a class suit to determine the validity of 
bonds Vitaphone Corp. v. Hutchison, supra, upheld the main­
tenance of a copyright protection bureau by a group of 
movie producers and distributors to protect their copyrights 

by bringing suit where necessary.
17* *In Re Ades, supra, upheld the right of a lawyer, 

who had been employed by the International Labor 
defense, a group which sponsored litigation, to volunteer 
his services to persons accused of crimes. Bigelow v. Old 
Dominion Copper Mining & Smelting Co., supra, sustained 
the right of stockholders to press for and contribute toward 
litigation by a corporation. Gowen v. Nowell, supra, upheld 
the right of a group to urge and support a test case in­
volving taxes. City of Bridgeport v. Equitable Title & 
Mortgage Co., supra, involved the participation of original 
owners of property assessed in their names in, and their 
support of, a suit to foreclose tax liens. And in Common- 
tvealth v. Dupuy, supra, the right of a group of citizens to 
urge and contribute towards a criminal prosecution was 
upheld.

Not only has the practice of individual and group spon­
sorship of litigation been sustained by the courts, but it 
has also been approved by bar associations. The Committee 
on Professional Ethics of the Association of the Bar of the 
City of New York says as to group sponsorship of litigation: 
“ A litigant may solicit the cooperation of persons interested 
in the same principle of law; and such solicitation may prop­
erly be done by his attorney, when it is primarily and funda­
mentally in the interests of the client * * * ”  Opinions of The 
Committees on Professional Ethics, supra, Op. No. 343. See 
Ops. No. 113, No. 170, No. 281, No. 321, No. 363, No. 586. 
As to individual sponsorship of litigation, the same com­

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 15



16

mittee says: “ Under proper circumstances and where real 
interests are involved, lawyers may act for one party where 
legal fees and other expenses are defrayed by another.”  
Id., Op. No. 707.

Indeed, the Canons of Professional Ethics of the Ameri­
can Bar Association expressly approve the activities of 
charitable organizations in paying the expenses of the liti­
gation of others. Canon 35. See Richmond A ss’n. of Credit 
Men v. Bar Association, 167 Va. 327, 334; American Bar 
Association, Opinions Of The Committee On Professional 
Ethics, Op. No. 148 (1957). Cf. In Re Ades, 6 F. Supp. at 
475. Moreover, the development of Anglo-American Juris­
prudence has always been toward expanding the opportuni­
ties of litigants to present their cases as fully and com­

pletely as justice may require and to avail themselves 
18* whatever assistance they *need in their presentation.

Legal Aid, in the United States, passim, (1951); Smith, 
Justice and the Poor, passim, (1921). Conformably there 
has been continued liberalization of rules of procedure which 
has facilitated the development of group sponsored litiga­
tion. See, e.g., Rule 23 (a) (3), Federal Rules of Civil 
Procedure; Association of the Bar of the City of New York 
& New York County Lawyers’ Association, Opinions Of The 
Committees On Professional Ethics, Op. No. 113 (1956).

Now when a labor union urges the bringing of suit to test 
the validity of anti-labor legislation; when a trade associa­
tion urges the bringing of a suit to test the validity of a 
law regulating trade; when a consumers group urges the 
defense of a suit testing the validity of social welfare legis­
lation; when a racial group urges one of its members to 
challenge the validity of racially discriminatory legislation; 
when a tenant’s association urges the bringing of a suit to 
test the validity of a new rent increase— are these groups 
engaged in the commission of a crime or are they engaged 
in exercising their constitutionally protected rights to free­
dom of speech, freedom of assembly, freedom of association 
and freedom of the press? Appellant says it is the latter. 
Virginia says it is the former. For Chapters 33 and 36 de­
clare that, despite the fact that such groups are not engaged 
in stirring up groundless litigation and despite the fact that 
their objective is neither monetary profit for themselves nor 
the vexation of others, the activities of these groups are 
violative of the offenses defined or redefined therein.

Appellant’s view of the law, in sum, is that when groups, 
including the Fund, take concerted action in the form of 
joint sponsorship of such litigation by agreeing to furnish 
legal counsel or to defray expenses, or both, they are not

Supreme Court of Appeals of Virginia



engaged in maintenance or “ running and capping.”  They 
are exercising their rights to freedom of expression on 
public issues and the rights of their supporters to pool their 
resources and support action for the benefit of all. Cf. 
Sweezy v. New Hampshire, 354 U.S. 234; Watkins v. United 
States, 354 U.S. 178, 250-251; Weiman v. Updegraff, 344 
U.S. 148; United States v. Rumely, 345 U.S. 41, 46. It is 
the manifestation of group sentiment. Cf. United States v.

C. I. 0., 335 U.S. 106, 143-144 (concurring opinion).
19* *And appellant also views the law as saying that, 

when financial contributions are solicited from the 
public to assist in defraying tbe expenses of such litigation, 
these groups are engaged in the exercises of the right to in­
fluence others, a right incidental to the exercise of freedom 
of speech and assembly. Murdock v. Pennsylvania, 319 U.S. 
105; Follet v. McCormick, 321 U.S. 573.

B. The Offenses Provided For Under Chapters 33 and 36 
Are Framed So As To Amount To A Denial Of Due Process 
Of Law.

Chapters 33 and 36 relate to the improper practice of law. 
The amendment of Sections 54-74, 54-78 and 54-79 of the 
Virginia Code contained in Chapter 33 and the offenses 
created by Chapter 36 are new in the law of the State. Vir­
ginia, of course, may reasonably regulate the practice of 
law. But appellant submits that where such regulation pro­
hibits activities otherwise approved or endorsed by those 
whose experience is closer to such matters—the bench and 
the bar—as guardians of the deep seated interests o f society 
which are reflected in legislation dealing with punishment 
for maintenance and ambulance chasing, it amounts to a 
denial of due process of law.

Turning to the offense defined in Chapter 33, “ running 
and capping”  or “ ambulance chasing”  generally forbids 
those activities of laymen who follow up accidents and 
approach the injured or their personal representatives to 
induce them to sue for damages with a view towards solicit­
ing business for an attorney in consideration for a share of 
the proceeds. In re Mitgang, 385 111. 311, 52 N.E. 2d 807, 
816; Doughty v. Grills, 260 S.W. 2d 379, 387 (Tenn.); In re 
Newell, 174 App. Div. 94, 160 N. Y. S. 275, 278; State ex 
rel. Nebraska Bar A ss’n v. Basye, 138 Neb. 806, 295 N.W. 
816, 817. See State ex rel Wright v. Hinckle, 137 Nebr. 735, 291 
N.W. 68; Clxreste v. Commonwealth, 171 Ky. 77, 186 S.W. 919. 
“ Ambulance chasing”  also has included within its ambit an 
attorney’s solicitation of employment either personally or

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 17



18 Supreme Court of Appeals of Virginia

through others, especially in personal injury cases where the 
consideration is a share in the recovery. 5 Am. Jur. 425-426; 
Kelley v. Boyne, 239 Mich. 204, 214 N.W. 316, 318. See State 
ex rel. Wright v. Hinckle supra; Re Shay, 133 App. Div. 547, 
118 N. Y. S. 146, affirmed 196 N. Y. 530, 89 N.E. 1112. Today 

“ ambulance chasing”  is considered as embracing any 
20* attorney *who obtained employment in any type of liti­

gation either personally or through others who share in, 
or are compensated out of, the recovery. 5 Am. Jur., supra. 
See People v. Gray, 52 Cal. App. 2d 620, 127 P. 2d 72.

However the offense has been defined by statute or judicial 
construction or in disciplinary proceedings, whether termed 
“ ambulance chasing”  or “ running and capping,”  the one 
common element is that the solicitation is carried on for a 
share in the personal or real property recovered.

Maintenance, the offense created by Chapter 36, is also 
aimed at trafficking in lawsuits. But, unlike “ ambulance 
chasing” , “ no personal profit is expected or stipulated.”  
Sampliner v. Motion Picture Patents Co., 255 F. 242 (2nd 
Cir.). Precise statutory definitions of maintenance are rare, 
See 111. Stats. Anno., Ch. 38, Sec. 66; Colo. Rev. Stat., Sec. 
40-7-41 (1953), but at common law it was succinctly defined 
as officiously aiding another in his suit. Winfield, “ The His­
tory of Maintenance and Champerty,”  35 Law Q. Rev. 50. 56 
(1919). More common law definitions are plentiful, e.g., “ of­
ficiously interfer| [ing] in a law suit, in which [one] has no 
present or prospective interest, to assist one of the parties 
against the other, with money or advice, without authority 
of law,”  McIntyre v. Thompson, 10 F. 531, 532 (C. C. N. C .) ; 
the unlawful taking in hand or upholding of quarrels or sides 
to the disturbance or hindrance of common right, Gibson v. 
Gillespie, 4 W. W. Harr. (Del.) 331, 152 A. 589; “ an officious 
intermeddling in a suit that no way belongs to one, by main­
taining or assisting either party with money or otherwise to 
defend it,”  4 Blackstone 135, quoted in Sampliner v. Motion 
Picture Patents Co., supra; and “ maintenance, as I under­
stand it, upon the modern construction, is confined to cases 
where, a man improperly, for the purpose of stirring up liti­
gation and strife, encourages others either to bring actions or 
make defenses which they have right to make,”  Fonden v. 
Parker, 11 Mees. & W. 75, quoted in John v. Champagne Lum­
ber Co., 157 F. 407 at 418 (D. C. Wis.) and Davis v. Stowell, 
78 Wiss 338, 47 N.W. 371.

According to 10 Am. Jur. 548-549, which summarizes the 
early law and modern view, the following conclusions are 
stated.



21* * Considering the modern view and the general modi­
fication and amelioration of the rules regarding main­

tenance, there is considerable doubt whether any of the at­
tempts at giving strict definitions of what constitutes main­
tenance at the present day are either successful or useful 
(Id. at 549).

Then after criticising the vice of formulating a strict defini­
tion and providing a string of exceptions, it concludes, at 
p. 549:

A definition in consonance with the modern view, and often 
judicially stated, is that maintenance means the act of one 
improperly, and for the purpose of stirring up litigation and 
strife, encouraging others either to bring actions or to make 
defenses which they have no right to make, and the term 
seems to be confined to the intermeddling in a suit of a 
stranger or of one not having any privity or concern in the 
subject matter, or standing in no relation of duty to the 
suiter.

Agreeably, the United States Court of Appeals for the Sec­
ond Circuit in a recent case ruled that there was no main­
tenance because it found no “ purpose”  on the part of the 
alleged maintener “ to foment suits which did not seek to 
protect a legitimate business of its own.”  Chester H. Roth, 
Inc. v. Esquire, Inc., 186 F. 2d 11, 15. And, earlier, in John v. 
Champagne Lumber Co., 157 F. 407, 418, the conclusion was 
that the giving of financial aid to a poor suitor who is prose­
cuting a meritorious cause of action neither violated the law 
nor offended public policy: “ The law does not tolerate the 
notion that a powerful defendant may force the abandon­
ment of a suit whenever he is able to exhaust the slender 
means of a weak antagonist.”

So, despite the attempts which have been made throughout 
our legal history to pervert the judicial machinery into an 
instrument of oppression, the courts have never penalized 
those who, in good faith, befriended the suitor. Radin, Main­
tenance By Champerty,”  24 Cal. Rev. 48 (1935). And, in line 
with this, the development of the law has always been toward 
expanding the opportunities of litigants to present their cases 
as fully and completely as justice may require and to avail 
themselves of whatever assistance they need in their pres­
entation. See Schlesinger, Crisis of the Old Order 113, 419, 
(1957); Mirrors of Justices, 7 Seld. Soc. 14 (1893); McGuire, 
“ Poverty and Civil Litigation,”  36 Harv. L. Rev. 361; Cohen, 
“ The Origins of the English Bar,”  81 Law Q. Rev. 56, 72-73;

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 19



20 Supreme Court of Appeals of Virginia

Brownell, Legal Aid In the United States (1951); 
22* *Smith, Justice and the Poor (1921); “ Legal Aid Proj­

ect Arouses Dispute,”  New York Times, Sept. 8, 1957,
p. 118.

However, Virginia, by enacting Chapters 33 and 36, has 
ignored historical experience and disregarded the basic ele­
ments of the crimes defined therein, including the firmly 
established exceptions thereto—and all this under the guise 
of protecting the administration of justice. As framed, these 
laws forbid a continuance of the activities of appellant and, in 
large measure, operate to destroy its effectiveness. This Vir­
ginia cannot do, appellant submits; it amounts to a denial 
of due process of law.

C. Chapters 33 and 36 Violate The Due Process Clause of 
The Fourteenth Amendment Because They Fetter Access To 
The Federal Courts.

Any litigation is expensive; that with which appellant has 
come to be identified is uncontrovertably too dear for most 
named plaintiffs therein to bear, either individually or jointly 
without outside assistance in the form of money or services, 
or both (PI. Ex. 9, p. 345). Indeed, the expense incurred in an 
anti-discrimination case which is tried and then concluded 
following review in a United States Court of Appeals ap­
proximates $5,000; if it has to be taken up to the Supreme 
Court of the United States, the. cost usually mounts to around 
$50,000 although in protracted litigation like Siveatt v. 
Painter, 339 U.S. 629 and the School Segregation Cases, 
Brown v. Board of Education, 347 U.S. 483, 349 U.S. 294, the 
expenses have ranged from around $100,000 to over $200,000 
(PI. Ex. 9, pp. 262-269, 314). In Virginia, the final figure in 
some of the suits seeking to secure nonsegregated schooling 
may be ever greater because none has been concluded and 
most have been litigated and relitigated at each level of the 
federal system. See, e.g., Davis v. County School Board of 
Prince Edward County, Va., 103 F. Supp. 337, reversed 347, 
U.S. 483, remanded 349 U.S. 249, decree on remand 1 Race 
Rel. L. Rep. 82, motion for further relief referred to one- 
judge District Court 142 F. Supp. 616, motion for further 
relief denied 149 F. Supp. 431, reversed sub nom. Allen v. 
County School Board of Prince Edward County, Va., 249
F. 2d 462, cert, denied 355 U.S. 953, motion for further relief 
denied in part 164 F. Supp. 786, reversed F. 2d (decided May 
5, 1959); Thompson v. County School Board of Arlington 
County, Va., 144 F. Supp. 239, affirmed 240 F. 2d 59, cert.



denied 353 U.S. 911, motion to amend decree *granted 
23* 2 Race Rel. L. Rep. 810, motion for further relief

granted 159 F. Supp. 767, affirmed 252 F. 2d 929, cert, 
denied 356 U.S. 958, motion for further relief denied in part 
166 F. Supp. 529, affirmed in part 263 F. 2d 226, remanded 
264 F. 2d 946; Allen v. School Board of Charlottesville, 1 Race 
Rel. L. Rep. 886, affirmed 240 F. 2d 59, cert, denied 353 U.S. 
910, motion for further relief granted 3 Race Rel. L. Rep. 937, 
938, appeal dismissed 4 Race Rel. L. Rep. 39; Atkins v. School 
Board of City of Newport News, 148 F. Supp. 430, ruling on 
merits 2 Race Rel. L. Rep. 334, affirmed 246 F. 2d 325, cert, 
denied 355 U.S. 855, re-filed sub nom Adkivson v. School 
Board of City of Neivport Neivs, 3 Race Rel. L. Rep. 938, 
pending decision; Beckett v. School Board of City of Norfolk, 
148 F. Supp. 430, decided on the merits 2 Race Rel. Rep. 337, 
affirmed 246 F. 2d 325, cert, denied 355 U.S. 855, motion for 
further relief granted 3 Race Rel. L. Rep. 1155, affirmed 260
F. 2d 18. Kilby v. County School Board of Warren County 
(unreported, decided Sept. 8, 1958), affirmed 259 F. 2d 497; 
Jones v. School Board of A lexandriadecided on the merits 
4 Race Rel. L. Rep. 31, 33, appeal pending. Thus it seems not 
only .indigent Negro litigants and those of moderate means 
but even the few with somewhat substantial resources cannot 
have access to, and secure full and complete relief from, the 
federal courts in school integration cases without the services 
and assistance which appellant is prohibited from giving and 
litigants are forbidden to accept under Chapters 33 and 36.

Unfettered access to federal courts is a right secured to 
every citizen and every natural or legal person in Virginia; 
and any state interference with it is a denial of due process. 
Terrell v. Burke Construction Co. 257 U.S. 529; Truax v. 
Baich, 257 U.S. 312, 334; Barbier v. Connelly, 113 U.S. 27, 31; 
Slaughter House Cases, 16 Wall. (U.S.) 36; Crandall v. 
Nevada, 6 Wall. (U.S.) 36, 44; United States v. Lancaster, 44 
F. 885 (C. C. Ga.).

In Crandall v. Nevada, the Supreme. Court of the United 
States said that “ the right to free access [to] the courts of 
justice in the several states * * * is in its nature independent 
of the will of any state.”  And in Barbier v. Connelly, the 

Court said that the Fourteenth Amendment undoubtedly 
24* Untended “ that all should have like access to the: courts 

of the country for the * * * prevention and redress of 
wrongs * * ”

Moreover, free and unfettered access to federal courts is 
expressly secured by a federal statute which creates a right 
of action at law or in equity to every person deprived o f any 
constitutional right, privilege or immunity under color of

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 21



22 Supreme Court of Appeals of Virginia

state law, Title 42 U.S.C., Sec. 1983, and jurisdiction is con­
ferred on United States District Courts under 28 U.S.C., Sec. 
1343 (3) to hear such cases.

In Virginia, the legislative and executive arms of the state 
government have opposed the elimination of state-enforced 
racial segregation in public schools (Tr., pp. 14-16). As a re­
sult, the sole avenue of redress for persons seeking to remove 
such restrictions has been the judiciary. And it is publicly 
known that appellant has, and is now, engaged in assisting 
Virginia Negroes, who so request, in litigation aimed at over­
coming those restrictions. Equally well publicized has been 
the determination of Virginia’s chief executive (Tr., pp. 15- 
16) and lawmakers (Tr., p. 14; 159 F. Supp. 503, 511, 523- 
534; PI. Ex. 7, pp. 9, 26-42; PI. Ex. 9, pp. 513, 524-525, 527, 
530, 531, 532, 535) to block achievement of nonsegregated 
education through resort to the courts. It was in this atmos­
phere that Chapters 33 and 36 were enacted; and their ob­
jective, operation and effect literally forbid a continuance of 
complainant’s activities and deny or unduly restrict most, if 
not all, Virginia Negroes’ access to the courts in violation of 
the due process clause of the Fourteenth Amendment.

D. Chapters 33 and 36 Violate The Due Process Clause Of 
The Fourteenth Amendment Because They Are Infringe­
ments On Liberty.

In Bolling v. Sharpe, 347 U.S. 497, 499-500, the Chief Justice 
concluded as to the scope of “ libei’ty”  under the Federal 
Constitution: “ Although the; Court has not assumed to define 
‘ liberty’ with any great precision, that term is not confined 
to mere, freedom from bodily restraint. Liberty under law 
extends to tlie full range of conduct which the individual is 
free to pursue, and it cannot be restricted except for a proper 

governmental objective.”
25* " *Tbe right to engage in lawful activities or to pursue 

a profession free from arbitrary governmental restraint 
is protected by the Constitution. Appellant’s activities are 
aimed at the eradication of racial discrimination from public 
life in America through peaceful persuasion and the securing 
of rights guaranteed Negroes under the Constitution and 
laws of the United States by aiding these persons to obtain 
vindication thereof in the courts.

The lawyers who cooperate with appellant toward achieve­
ment of these aims are, of course, engaged in the pursuit of 
their professions. Cf. Konisgsberg v. State Bar of California, 
353 U.S. 252; Sclnvare v. Board of Bar Examiners of the 
State of Neiv Mexico, 353 U.S. 232; Pierce v. Society of Sis­



ters, 268 U.S. 510; Bartels v. loiva, 262 U.S. 404; Meyers v. 
Nebraska, 262 U.S. 390.

The destructive impact of Chapters 33 and 36 on the right 
of attorneys associated with appellant to practice their pro­
fession and of appellant to render charitable legal aid is clear. 
Lawyers who volunteer their professional services in cases 
which appellant gives assistance are subject to disbarment as 
well as other penalties.

In addition, as shown above, the statutes in suit violate the 
right of appellant and the lawyers associated with it, without 
due process of law, by failure to take into account the well 
established rule that lawyers may volunteer their services to 
the poor and exploited, Gunnels v. Atlanta Bar Association, 
191 Ga. 366,12 S.E. 2d 602, even in controversial causes, In re 
Ades, 6 F. Supp. 467 (D. Md.), when acting for benevolent 
purposes and that they may act for charitable societies with­
out violating the ethics of the profession (Canon 35, Canons 
of Professional Ethics, ABA). And the activities of appellant 
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 aid; its ac­
tivities are also covered by Canon 35. Finally, Chapters 33 
and 36 violate due. process for they are designed to put the 
appellant out of business by forbidding it to assist Negroes to 
assert rights established by the decisions of this Court and 
the Supreme Court of the United States.

26* *E Chapter 36 Legalizes A Long List Of Maintenous 
Activities And Resultingly Violates The Equal Pro­

tection Of The Law.

Chapter 36 exempts from the operation of its terms litiga­
tion involving annexation, zoning, bond issues, the holding or 
results of any election or referendum, possession of or title 
to real or personal property regardless of ownership, assess­
ment or collection of taxes or the rates thereof, rates or 
charges or services by common carriers or public utilities, 
criminal prosecutions, abatement or nuisances. It also ex­
empts the payment of attorneys by legal aid societies ap­
proved hv the Virginia State Bar.

The Virginia legislature, recognizing that group sponsor­
ship of litigation is involved in all of these, exceptions and 
recognizing the wide variety of cases other than racial segre­
gation cases in which such group sponsorship is lawful, has 
narrowed the statute’s operation to include only group spon­
sored litigation which involves challenges or tests of state 
imposed racial restrictions. If Virginia permits all groups

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 23



24 Supreme Court of Appeals of Virginia

in the state to sponsor litigation except those which sponsor 
litigation relating to race, which as a practical matter in­
cludes only appellant and the National Association for the 
Advancement of Colored People, then the constitutional guar­
antee of equal protection is meaningless.

The equal protection of the laws is “  a pledge of the protec­
tion of equal laws.”  Tick Wo v. Hopkins, 118 U. S. 356, 369. 
State statutory classifications violate the Equal Protection 
Clause if based upon nonexistent differences or if the differ­
ences are not reasonably related to a proper legislative ob­
jective. Morey v. Doud, 354 U. S. 457; Skinrier v. Oklahoma, 
316 U. S. 535; Hartford Steam Boiler Inspection & Insurance 
Co. v. Harrison, 301 U. S. 459; Mayflower Farms v. Ten Eyck, 
297 U. S. 266; Concordia Fire Insurance Co. v. Illinois, 292 
U. S. 535; Smith v. Cahoon, 283 XJ. S. 553; Nixon v. Herndon, 
273 U. S. 536; Air-Way Electric Appliance Corp. v. Day, 266 
U. S. 71; Truax v. Raich, 239 U. S. 33; Southern Railway Co. 
v. Greene, 216 U. S. 400. Discriminations of the character 
outlawed by the equal protection provision are epitomized 
in the legislation under consideration. It operates to create 
a class embracing only persons and organizations giving as­
sistance in litigation involving an issue of racial segrega­

tion or discrimination and leaves all others free to carry 
27* on *or pursue the same character of activities.

The real vice of Chapter 36 cannot be fully appre­
ciated without reference to its true impact upon the efforts 
of Negro citizens of Virginia to secure their constitutional 
rights to nonsegregated public education. The defendant 
school hoards are financially able to, and do, retain the best 
law firms in the state. In addition, they are usually rep­
resented by the Attorney General of the Commonwealth and 
special assistant attorneys general. By the provisions of 
Chapter 36, Virginia now denies these Negroes the right to 
accept legal assistance from appellant; and Chapter 33, in 
conjunction with Chapter 36, prohibits appellant from offer­
ing such assistance. Even with the amount of legal assis­
tance which appellant is financially able to afford plaintiffs in 
these cases, the legal match is an uneven one. Without ap­
pellant’s assistance, there would be no match.

The cases in which appellant gives assistance are not 
cases between private litigants. They are cases of great 
public moment, involving one or more Negroes who sue local 
school boards or other state instrumentalities to test govern­
mental action allegedly infringing rights, privileges or im­
munities secured them by the State or Federal Constitution.

In sum, the Commonwealth of Virginia lias assured local 
school hoards and other state agencies the full panoply of



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 25

state support, including financial and legal assistance, and, 
at the same time, has made it impossible for Negro plain­
tiffs to obtain the finances or legal assistance needed in their 
litigation.

Furthermore, if Virginia’s objective is to safeguard the 
administration of justice, then it is settled that a statutory 
discrimination must be based on differences that are reason­
ably related to the purpose of the legislation. Morey v. Doud, 
354 U. S. 457. I f the purpose is the safeguarding of the 
administration o f justice, then discrimination in favor of all 
groups except those concerned with issues involving racial 
segregation or discrimination does not conform to this pur­
pose. Cf. Morey v. Doud, supra; Smith v. Cahoon, 283 U. S.

553; Hartford Co. v. Harrison, 301 U. S. 459.
28* *The effect of the discrimination, unquestionably, is 

to subject to criminal and disciplinary sanctions ap­
pellant’s activities related to assisting in the initiation and 
further prosecution of litigation and to legalize identical 
activities by others. In Cotting v. Kansas City Stock Yards 
Co., 183 U. S. 79, the Court held that a regulatory statute 
that, in fact, applied to only one stockyard in a state violated 
the equal protection clause.

The effect of the discrimination is also to give all but 
Negroes an opportunity to raise sufficient funds to carry on 
costly litigation—in other words, an economic advantage is 
secured by all but Nearroes. Cf. Mayflower Farms, Inc. v. 
Ten Eyck, 297 U. S. 266.

Taking all these factors into consideration—the remote­
ness of the relation of the discrimination to the purpose of 
the act, i. e., safeguarding the administration of justice, the 
creation of a class consisting, in fact, of only appellant and 
the National Association for the Advancement of Colored 
People, and the accompanying economic advantage which 
accrues to all others except Negroes—it is clear that in line 
with the United States Supreme Court’s most recent decision 
on statutory discriminations, Morey v. Doud, supra. Chapter 
36 is a patent violation of the Equal Protection Clause of 
the Fourteenth Amendment.

ARGUMENT.

NEITHER CHAPTER 33 NOR CHAPTER 36, PROPERLY 
CONSTRUED IN THE LIGHT OF APPELLANT’S 
CONSTITUTIONAL CONTENTIONS UNDER SET­
TLED RULES OF STATUTORY CONSTRUCTION, 
CAN PROPERLY BE CONSTRUED TO PROHIBIT 
THE ACTIVITIES OF APPELLANT WHICH THE



26 Supreme Court of Appeals of Virginia

COURT BELOW HELD TO BE INHIBITED THERE­
BY.

A. The Statutes Involved.

Chapters 33 and 36 are vague and ambiguous to the point 
that there is substantial doubt as to their meaning and in­
tended operation as respects the activities of the appellant. 
As the District Court found, “ the language of [Chapter 33], 
especially portions of Section 54-74(6) Section 54-78(1), is 
obscure and difficult to understand”  (159 F. Supp. at 533-534; 
PI. Ex. R-7, pp. 40-41), and “ the language [of Chapter 36] 

is ambiguous, and doubts have *arisen as to whether the 
29* giving of advice to persons as to their constitutional 

rights amount to the ‘ instigation’ of a suit or whether 
the giving of money to needy litigants amounts to an ‘ induce­
ment’ to bring a suit.”  (159 F. Supp. at 534; PI. Ex. R-7, p. 
42). Accordingly, the Court concluded, “ Since Chapters 33 
and 36 are vague and ambiguous we do not pass upon their 
constitutionality,”  (Id.), but, rather, “ 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 in­
terpretation of these statutes; * * *”  (Id.). See Harrison v. 
National Association for the Advancement of Colored People, 
IT. S. (decided June 8, 1958).

1. Chapter 33.

Chapter 4 of Title 54 of the Code of Virginia contains 
the statutes regulating the practice of law and defining the 
elements of malpractice by an attorney and the offenses of 
“ running”  and “ capping.”  Prior to the amendments of 
these statutes effected in 1956 by Chapter 33, an attorney’s 
license was subject to revocation or suspension upon a find­
ing, in appropriate proceedings, that the attorney is guilty 
of “ any malpractice, or of any unlawful or dishonest or un­
worthy or corrupt or unprofessional conduct.”  (Va. Code 
1950, Sec. 54-74(1), (4). It was then also provided that

“ Any malpractice, or any unlawful or dishonest or un­
worthy or corrupt or unprofessional conduct,”  as used in this 
Section, shall be construed to include the improper solicita­
tion of any legal or professional business or emnlovment, 
either directly or indirectly, * * * (Sec. 54-74(6), Italics 
supplied).



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 27 

and that it would be

* * * unlawful for any person, corporation, partnership or 
association to act as a runner or capper for any attorney 
at law or to solicit any business for him * * * (Sec. 54-79, 
Italic supplied).

and “ runner”  or “ capper”  was defined as

* * 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 in the solicitation or pro­
curement of business for such attorney at law, * * * (Sec. 
54-78, Italics supplied).

and “ agent”  was defined as

30* * * * * one who represents another in dealing with
a third person or persons. (Sec. 54-78 (2) ).

Chapter 33 amended Sections 54-74(6) by extending the 
definition of “ Any malpractice, or any unlawful or dishonest 
or unworthy or corrupt or unprofessional conduct”  to also 
include

* * * the acceptance of employment, retainer, compensa­
tion or costs from any person, partnership, corporation, or­
ganization or association with knowledge that such person, 
partnership, corporation, organization or association has 
violated any provision of Article 7 of this chapter * * *

It also enlarged the definition of “ running”  or “ capping”  
contained in Section 54-78 (a part of Article 7), which there­
tofore had consisted in “ acting * * * as an agent for an 
attorney at law * * * in the solicitation or procurement of 
business for such attorney at law,”  to also embrace

* * * any person, corporation, partnership or association 
acting in any manner or in any capacity as an agent * * *for 
any person, partnership, corporation, organization or asso­
ciation which employs, retains or compensates any attornev 
at law in connection with any judicial proceeding in which 
such person, partnership, corporation, organization or as­
sociation is not a partv and in which it has no pecuniary 
right or liability, in the solicitation or procurement of busi­
ness * * * for such person, partnership, corporation, organi­
zation or association in connection with any judicial pro-



28 Supreme Court of Appeals of Virginia

ceedings for which such attorney or such person, partner­
ship, corporation, organization or association is employed, 
retained or compensated * * * (Italics supplied).

and broadened the offense specified by Section 54-79 (also 
a part of Article 7), which heretofore made it unlawful “ to 
act as a runner or capper for any attorney at law or to solicit 
any business for him,”  to also make it unlawful

* * * to act as a runner or capper * * * to solicit any busi­
ness for such person, partnership, corporation, organization 
or association * * * (Italic supplied).

The license of an attorney violating any of these provisions 
is subject to revocation or suspension (Sec. 54-74), and 
violations of Section 54-79 are punishable by fine and in­
carceration (Va. Code 1950, Sec. 54-82).

2. Chapter 36.

Chapter 36 makes it unlawful for any person not having 
a “ direct interest”  in the proceedings to promise, give, offer, 
receive, or solicit any money, personal services, or any other 
thing of value, or any further assistance “ as an inducement 

to any person to commence or to prosecute ‘ further 
31* 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 de­
partment, agency or political subdivision thereof, or any 
person acting as an officer or employee for either or both 
or any of the foregoing; * * * ”  (Sec. 1-a). It also makes 
it unlawful for any person “ not related by blood or mar­
riage 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 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 of Virginia, any de­
partment, agency or political subdivision thereof, or anv 
person acting as an officer or employee for either or both 
or any of the foregoing”  (Sec. 1-b). “ Person”  includes 
“ person, firm, partnership, corporation, organization or as­
sociation” ; “ direct interest”  means “ a personal right or a 
pecuniary right or liability”  (Sec. 1-c). The exceptions 
specified in the act do not embrace appellant.

Any violation of these provisions constitutes a mis-



demeanor punishable by fine and incarceration (See. 1-d) 
and attorneys violating any such provisions “ shall * * * be 
forever barred from practicing before any court or board or 
administrative agency of this State”  (Sec. 4).

B. The Court Below Failed To Apply Well Settled Buies 
Of Statutory Construction In Declaring Chapters 33 and 
36 To Apply To And Prohibit The Activities Of Appellant 
Involved On This Appeal.

The court below improperly construed these statutes to 
be prohibitive of the activities of appellant involved in this 
appeal. The character of the legislation considered, well 
settled canons of statutory construction impose limitations 
upon the judicial function in this litigation far too substantial 
for the language of the statutes to overcome.

1. Heavy penalties are prescribed for activities which 
Chapter 36 undertakes to forbid. It denominates the pre­
scribed conduct a misdemeanor (Sec. 1-d) and specifies that 
any attorney who shall violate any provision thereof shall 

be disbarred (Sec. 4). Violations of the prohibitions of 
32* ‘ Chapter 33 are likewise punishable by fine and in­

carceration (Va. Code 1950, Sec. 54-82), and by revoca­
tion or suspension of the license of a violating attornev (Id., 
Sec. 54-74).

The universal principle that penal statutes are strictly 
construed against the state has found frequent application 
in Virginia. Sellers v. Bles. 198 Va. 49, 92 S. E. (2d) 486; 
Waller v. Commonwealth, 192 Va. 83, 63 S. E. (2d) 713; Lewis 
v. Commonwealth, 184 Va. 69, 34 S. E. (2d) 389: Anderson 
v. Commonwealth, 182 Va. 560, 29 S. E. (2d) 838; Davis v. 
Commonwealth, 17 Grat. (58 Va.) 617. The judicial limita­
tions to be observed in administering such laws have been 
delineated bv this Court in identical language in Faodhver v. 
South Boston. 141 Va. 517, 524, 127 S. E. 380, 382; Jordan v. 
South Boston. 138 Va. 838, 847. 122 S. E. 265, 268: and McKay 
v. Commonwealth. 137 Va. 826, 830, 120 S. E. 138, 139:

“ A penal statute cannot be extended by implication or 
construction. It cannot be made to embrace cases not within 
the letter though within the reason and policv of the law. 
To constitute the offense the act must be both within the 
letter and spirit of the statute defining it. Those who con­
tend that a penalty is imposed must show that the words 
of the act distinctly cover the case * * * I f  a penal statute

N.A.A.C.P. v. A. S. Harrison, Jr.* Atty. Gen. of Va. 29



30 Supremo Court of Appeals of Virginia

be so ambiguous as to leave reasonable doubt of its meaning, 
it is the duty o f the court to refuse to impose the penalty.

Appellant’s activities do not fall within the letter of Chap­
ter 33 or 36. At the very least, there is more than a reason­
able doubt as to their applicability. Accordingly, there was 
no room for the Circuit Court to extend the laws by implica­
tion or construction to embrace those activities.

2. It is well established in Virginia, as elsewhere, that 
statutes in derogation of the common law are strictly con­
strued, and will not be enlarged in their operation by con­
struction beyond their express terms. Sellers v. Bles, 198 
Va. 49, 92 S.' E. (2d) 486; O’Connor v. Smith, 188 Va. 214, 49 
S. E. (2d) 310; Hannabass v. Ryan, 164 Va. 519, 180 S. E. 
416; Elliott’s K. I. S. & C. Corp. v. State Corporation Com­
mission, 123 Va. 63, 96 S. E. (2d) 353. In determining the 
meaning of a statute, it will be presumed, in the absence 
of words therein specifically indicating the contrary, that the 
legislature did not intend to innovate, unsettle, disregard, 

alter or violate the common *laAv. Norfolk & W. Ry. Co. 
33* v. Viraima Ry. Co., 110 Va. 631, 66 S. E. 863; Millhiser 

Mfg. Co. x. Gallego, 101 Va. 579, 44 S. E. 760; Mathews 
v. Commonwealth, 18 Grat. (59 Va.) 989; Commonwealth v. 
Marlin, 3 Leigh (30 Va.) 809; Davis v. Commonwealth, 17 
Grat. (58 Va.) 617.

These principles found expression in Davis v. Common- 
wealth, supra, and Commonwealth v. Maclin, supra, whore 
this Court, referring to the common law rule that dogs are 
not “ property”  so as to constitute the subject of larcenv, 
construed statutes making it a crime to destroy “ prortertv”  
as not authorizing prosecutions for the destruction of dovs. 
Similarly, in Millhiser Mfg. Co. v. Galleao, supra, a statute 
provided that warehouse receipts marked “ negotiable”  and 
issued by a “ licensed”  warehouse would be transferable bv 
indorsement and delivery, and that any person to whom such 
receipt should be so indorsed and delivered would be deemed 
the owner of the property specified therein, and provided 
certain penalties for the issuance of licensed warehouse re­
ceipts by anvone not keeping a regularlv licensed warehouse. 
Tt was held that the statute, by its specification of “ licensed”  
warehouses, did not abrogate, as to unlicensed warehouses, 
the common law rule that delivery of a warehouse receipt 
vests title in the goods, but was merelv declaratory of the 
common law as to licensed warehouses, leaving the rule as to 
unlicensed warehouses unchanged, since “ Statutes * * * ‘ are 
not presumed to make any alteration in the common law,



further or otherwise than the act does expressly de­
clare * * * ’ ”  (101 Va. at 595, 44 S. E. 760).

Likewise, in Norfolk dfc W. Ry. Co. v. Virginian Ry. Co., 
supra, this Court construed statutes providing for the ap­
pointment of five commissioners in condemnation proceed- 
ings, any three of whom could act and award damages, and 
further providing that the court might appoint other com­
missioners if those appointed reported their “ disagreement.”  
Five commissioners had been appointed, all of whom were 
sworn and acted, but in their report, one disagreed with the 
conclusions of the other four. It was contended that no law­
ful report could be made unless all five of the commissioners 
agreed. This Court, referring to the common law rule that a 

decision of a majority is valid, overruled the contention 
34* and held that the *“  disagreement”  mentioned in the 

statute had reference to a failure to agree on the part 
of the number of commissioners authorized to make a report, 
rather than to a lack of unanimity, pointing out that:

* * * it has been frequently decided by this court, and may 
be taken as established law with us, that the common law is 
not to be considered as altered or changed by statute unless 
the legislative intent be plainlv manifested * # * (110 Va. 
at 646 66 S. E. 863).

Chapter 36 attempts a legislative affirmation of the com­
mon law of maintenance and Chapter 33 undertakes amplifi­
cation of the time honored injunction against solicitation of 
legal business and employment. Limitations broadly recog­
nized in the common law of both topics would exempt ap­
pellant from any charge of impropriety. The language of 
these laws does not manifest a clear purpose to so far exceed 
the common law doctrine as to render appellant amenable to 
prosecution thereunder.

3. It is presumed that the legislature, in enacting a statute, 
did not intend to violate constitutional proscriptions. Ac­
cordingly, where the statute is susceptible of two construc­
tions, by one of which it might be unconstitutional and by 
the other it would be valid, the court will construe the statute 
to avoid not only the conclusion that it is unconstitutional, 
but also serious doubt on that score, and will restrict its 
language to a legitimate field of legislation. Commonwealth 
v. Dodson, 176 Va. 281, 11 S. E. (2d) 120; Miller v. Common­
wealth, 172 Va. 639. 2 S. E. (2d) 343; Hamnabass v. Ryan, 
164 Va. 519, 180 S. E. 416; Commonwealth v. Carter, 126 Va. 
469, 102 S. E. 58; Commonwealth v. Armour & Co., 118 Va. 
242, 87 S. E. 610, aff’d. 246 TJ. S. 1.

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 31



In Miller v. Commonwealth, supra, the defendant was con­
victed of the unlawful possession of alcoholic beverages on 
evidence merely establishing that he had in his automobile 
a container of- liquor not bearing government stamps or 
seals. The conviction rested upon a statute providing that 
spirits in the possession of any person and in containers not 
bearing the required government stamps or seals should be 
deemed to have been illegally acquired. The defendant con­
tended that the statute created a conclusive presumption 
and amounted to a denial of due process. In construing the 

statute to create only a rebuttable presumption, this 
35* Court said, 172 Va. at *648, 651, 2 S. E. (2d) 343:

“ A presumption of constitutionality always exists in favor 
of a statute. If its language be such that its meaning is so 
cloudy, obscure and ambiguous that it is open to more than 
one construction, one of which would render it void or of 
doubtful validity, and the other is reasonable and in harmony 
with the Constitution and conforms to the general purpose of 
the statute and its associated provisions, then we must adopt 
such construction as sustains its validity.”

• • • • •

“ To say the least, the language of the section under re­
view fails of precision. It is cloudy, obscure, and somewhat 
ambiguous. It is fairly open to more than one construction. 
One construction is capable of producing injustice, incon­
venience, hardship, and, under certain conditions, absurdities. 
A construction that the presumption therein set up is con­
clusive or irrebutable as to the fact it imports, would pre­
clude any benefit that a defendant would otherwise derive 
from opposing evidence of the true state of facts. In effect, 
it would deny to him the right, preserved in Virginia by the 
Constitution and statutes, to call for evidence in his favor 
and to testify in his own behalf.”

Similarly, in Hannabass v. Ryan, supra, the Court con­
strued statutes authorizing state licensing of minors be­
tween 14 and 16 years of age but forbidding such minors to 
drive an automobile in a city if prohibited from so doing by 
a proper city ordinance, and imposing liability for resultant 
damages on the owner of an automobile knowingly per­
mitting such minor “ who is not permitted under the provi­
sions of this act”  to drive an automobile. A father per­
mitted his 14 year old son, who had a state license, to drive 
a car in Richmond, and an accident followed. Richmond

32 Supreme Court of Appeals of Virginia



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 33

had an ordinance requiring a permit to drive and forbidding 
issuance o f such permit to any person under the age of 18. 
In reversing a judgment against the father and son, this 
Court said, 164 Va. at 525, 526, 180 S. E. 416:

Our construction of the language employed in [the 
statute], ‘who is not permitted under the provisions of this 
act to drive,’ deals solely with those who are not licensed 
by the state to operate a motor vehicle upon the streets and 
highway * * * Unless this section is so interpreted, the 
owner of a motor vehicle may be held liable under the state 

law for any act of negligence while his car was being 
36* driven by such minor in *the city of Richmond, but for 

the same act of negligence the owner would be without 
liability while his car was being operated by such minor upon 
the streets of another city of the state. There may be some 
reason for cities of the state being allowed to prohibit minors 
under sixteen years of age from operating cars upon their 
streets, but no justification can be found for the state to 
fasten liability on the owner of a car for the negligent opera­
tion of his car under such circumstances as are here shown 
in the city of Richmond, while for the same negligent act 
under the identical circumstances in other parts of the state 
there would he no liability on the owner. If such be the in­
tent of the act, its validity is at once open to inquiry. Under 
such circumstances, the court will adopt that interpretation 
of the statute which will harmonize it with the fundamental 
law. Commonwealth v. Armour £  Co., 118 Va. 242, 87 R. E. 
610. Especially is this true when no violence is done to the 
language of the statute and such interpretation satisfies its 
terms. School Board v. Patterson, 111 Va. 482, 69 R. E. 
337.”

The constitutional objections of appellant sustained by 
the District Court’s holding that Chapter 35, the barrati'v 
laAv enacted as part of the legislative package including the 
statutes in suit, was unconstitutional in its applications to 
appellant, 159 F. Rupp. 503, vacated on other grounds Harri­
son v. National Association for the Advancement of Colored 
People, U. S. (decided June 8, 1959), are eoually applic­
able to Chapters 33 and 36 and could condemn them to a like 
fate if this Court upholds the judgment below. However, 
proper construction of this legislation in the light of ap­
pellant’s constitutional contentions under the above well 
settled rules of statutory construction would have avoided 
the constitutional issue and saved it to ^erve useful ends



with respect to the areas and activities to which it could have 
legitimate operation.

C. Chapters 33 and 36 Should Not Be Construed To Apply 
To Or Prohibit The Activities Of Appellant Which Were 
Declared Violative Thereof.

The court below held that seven aspects of appellant’s 
activities violated either Chapter 33 or Chapter 36, or both. 
While the holding with respect to each aspect was made the 
subject of a separate assignment of error, all are attributable 

either to the Court’s interpretation and ^application 
37* of the “ solicitation”  prohibited by Chapter 33 or the 

“ inducement”  barred by Chapter 36, or both. Exami­
nation of its order discloses that the court below condemned 
four types of appellant’s activities as violative of either or 
both of the statutes, viz.

1. Expenditure of monies by appellant to defray in whole 
or in part the costs and expenses of litigation involving an 
issue of racial segregation or discrimination where the 
litigant has requested such financial assistance (Assignment 
Second, ante p. 5; Question Second, ante p. 7).

2. Contribution of advice by an attorney employed or re­
tained by, or associated with, appellant to a person or group, 
who requests or whose attorney requests the advice, in a 
matter, case or proceeding involving an issue of racial segre­
gation or discrimination (Assignment First, ante p. 5; Ques­
tion First, ante p. 7).

3. Contribution of the services of an attorney employed 
or retained by, or associated with, appellant to a person or 
group, who requests or whose attorney requests the services, 
in a matter, case or proceeding involving an issue of racial 
segregation or discrimination (Assignment Fourth, ante p. 
6 ; Question Third, ante p. 7).

4. Advocacy by appellant that persons subjected to racial 
segregation or discrimination assert their legal rights in 
appropriate litigation and, at the request of such persons 
or their attorneys, its contribution of legal advice, or the 
services of an attorney, or monies toward defraying the ex­
penses of the litigation (Assignment Third, ante p. 5; Ques­
tion Fourth, ante p. 8).

because, in the Court’s opinion, these activities “ amount 
to either an improper solicitation of legal or professional 
business or employment within the provisions of Chapter 33

34 Supreme Court of Appeals of Virginia



or an inducement to commence or prosecute law suits within 
the prohibitions contained in Chapter 36, or both * * *”

In similar fashion, the Court below held three types of 
appellant’s activities to violate Chapter 33, viz.

1. Acceptance by an attorney of assistance from appellant 
in the form of legal advice or monies toward counsel fees 
and other expenses of litigation in a matter, case or proceed­
ing involving an issue of racial segregation or discrimina­
tion. (Assignment Fifth, ante p. 6 ; Question Fifth, ante p. 
8).

2. Acceptance by an attorney of employment by a person or 
group, for the purpose of rendering legal services in a mat­
ter, case or proceeding involving an issue of racial segrega­
tion or discrimination where appellant has contributed or 
will contribute, at the request of the litigant or his attorney,

assistance in the form of advice ‘ respecting the liti- 
38* gant’s legal rights therein or monies toward counsel 

fees and other expenses thereof (Assignment Sixth, 
ante p. 6 ; Question Sixth, ante p. 8).

3. Acceptance by an attorney of employment or retainer 
by, or association with, appellant for the purpose of render- 
ing legal services to a person or group requesting appellant’s 
assistance in a matter, case or proceeding involving an issue 
of racial segregation or discrimination (Assignment Seventh, 
ante p. 6 ; Question Seventh, ante p. 8).

Consequently, the fundamental inquiry on this appeal is 
Avhether these activities amount to a “ solicitation”  within 
the provisions of Chapter 33 or an “ inducement”  within the 
meaning of Chapter 36; and, since each of the seven assign­
ments of error and questions raised depends upon the inter­
pretation thus given, it is unnecessary to burden this Court 
with separate arguments as to each* Accordingly, claritv 
and economy dictate presentation of the argument here with 
respect to each statute in suit rather than each assignment 
of error relied on or question raised. See Rule 5: 12 (d), 
Rules of Supreme Court of Appeals of Virginia.

1. Appellant’s Activities Declared To Be Violative Of 
Chapter 33, Do Not Amount To An Improper Solicitation Of 
Legal Or Professional Business Or Employment Within 
The Meaning of That Chapter When Properly Construed In 
The Light Of Appellant’s Constitutional Contentions Under 
Settled Rules Of Statutory Construction.

Chapter 33 prohibits an attorney from engaging in cer­

N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 35



36

tain types of professional endeavors (Sec. 54-74(6) ) and 
prohibits any persons, whether or not an attorney, from 
acting as a “ runner”  or “ capper”  as these terms are de­
fined (Secs. 54-78, 54-79). It is clear, however, that Chapter 
33 applies only to situations involving an improper ‘ ‘ solicita­
tion. ”

To the extent that it amended Section 54-74 (6), Chapter 
33 condemns an attorney’s conduct only when it amounts to
(a) “ the improper solicitation of any legal or professional 
business or employment, either directly or indirectly,”  or
(b) “ the acceptance of employment retainer, compensation 
or costs from any person, partnership, corporation, organiza­
tion or association with knowledge that such person, part­
nership, corporation, organization or association has violated 
any provision of article 7 of this chapter * * and the 
only section in Article 7 that appellant could by possibility

violate is Section 54-79 which outlaws “ running”  and 
39* “ capping”  and which, in its * applica t ion either to at­

torneys or to other persons or organizations, also re­
quires “ solicitation.”  By the latter section, it is unlawful 
to “ act as a runner or capper as defined in Section 54-78 to 
solicit any business”  for an attorney or for a person or or­
ganization employing, retaining or compensating an attor­
ney; and by the definitions contained in Section 54-78, (a) 
there can be a “ runner”  or “ capper”  for an attorney only 
if there is some person or organization “ acting in any manner 
or in any capacity as agent for an attorney at law * * * in 
the solicitation o,r procurement o f business for such attorney 
at law * * * in connection with any judicial proceedings 
for which such attorney or such “ runner”  or “ capper”  
is employed, retained or compensated,”  and (b) there 
can be a “ runner”  or “ capper”  for a person or orga­
nization employing, retaining or compensating an at­
torney only if there is some other person or organization 
“ acting in any manner or in any capacity as an agent”  for it 
“ in the solicitation or procurement of business”  for it “ in 
connection with any judicial proceedings for which: an at­
torney or such “ runner”  or “ capper”  “ is employed, retained 
or compensated.”  Consequently, “ solicitation”  is essential 
to any violation of Chapter 33 at all.

Chapter 33 could not be construed to apply to appellant’s 
activities unless they involve an improper solicitation of 
professional business for an attorney or a solicitation of 
business for the appellant. Unless an attorney improp­
erly solicits legal employment, either directly or indirectlv, 
or appellant itself engages in “ running”  or “ capping,”

Supreme Court of Appeals of Virginia



there could be no violation of those provisions of Chapter 
33 which are amendatory of Section 54-74 (6) ;  and, un­
less appellant’s activities involve the “ solicitation”  legis­
latively defined as an essential ingredient of the offense 
of “ running”  and “ capping”  in those provisions of Chapter 
33 which are codified in Sections 54-78 and 54-79, it is obvious 
that Chapter 33 could not be construed to restrict in any 

manner the activities of appellant.
40* *The evidence is uncontradicted that neither appel­

lant, nor the attorneys associated with its program, 
solicits law suits or litigants and that assistance is not af­
forded until some individual, either personally or by his 
privately-retained attorney, specifically applies for it (PI. 
Ex. R-9, pp. 253, 270-271, 272, 319). Xo element of solicita­
tion is involved in appellant’s contribution of assistance to 
litigants, upon their previous request therefor made person­
ally or by their attorneys, in the way of monies to defray 
the costs and expenses of the litigation, or the advice or 
services of an attorney retained by or associated with ap­
pellant (Assignments First, Second and Fourth, ante pp. 
5, 6), or in the acceptance by an attorney of employment 
or retainer by, or association with, appellant for the pur­
pose of rendering legal services to litigants requesting such 
services (Assignment Seventh, ante p. 6). Any notion of im­
proper solicitation is effectively dispelled by the fact that 
the assistance must in all instances be requested before it is 
forthcoming.

Xor can solicitation be found in acceptance of such as­
sistance by attorneys directly and regularly retained by the 
litigants. The court below has held that Chapter 33 prohibits 
such attorney from accepting appellant’s assistance in the 
form of legal advice or monies toward counsel fees and other 
expenses of litigation (Assignment Fifth, ante p. 6), and from 
accepting employment by the litigant if appellant has con­
tributed or will contribute, at the request of the litigant or 
the attorney, assistance of that character (Assignment Sixth, 
ante p. 6) We fail to see how the mere acceptance of such 
assistance, or the mere acceptance of employment in a case 
as to which such assistance will be furnished, can possibly 
be construed as involving a solicitation of business.

Xor, we submit, is it possible to find an improper solicita­
tion in appellant’s advocacv that persons subjected to racial 
segregation or discrimination assert their legal rights in 
appropriate litigation, even though appellant may, at the 
request of such persons or their attorneys, contribute monies 
toward the expenses of the litigation or advice by or the

X.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 37



38 Supreme Court of Appeals of Virginia

services of an attorney retained by or associated with it.
(Assignment Third, ante p. 5).

41* *It has been aptly stated that “ solicitation”  assumes 
an initial, active and wrongful effort. Nash v. Doug­

lass, (N. Y.) 12 Abb. Prac. N. S. 187, 190; State v. Nye, 
(Ohio) 56 Wkly. Bull. 273. The activities of the complainants 
could not be so characterized. As the District Court stated, 
159 F. Supp. 503, 533, vacated on other grounds Ha,rrison v. 
National Association for the Advancement of Colored, 
People, TJ. S. (decided June 8, 1959):

“ 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 stand­
ards o f the legal profession. They comprise in substance 
public instruction 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 
initial steps which have led to the institution and prosecu­
tion of racial suits in Virginia with the assistance of the 
Association and the Fund have not been taken until the 
prospective plaintiffs made application to one or the other 
of the corporations for help.”

As the Court below held, appellant is not hindered by 
Chapter 33 in advocating the eradication of racial segregation 
and discrimination. See also National Association for the 
Advancement of Colored People v. Alabama, 357 U. S. 449. 
And while appellant concommitantly offers to worthy litigants 
the opportunity to obtain much-needed assistance in such 
efforts, an improper “ solicitation”  does not folloAv from the 
opportunity afforded, see Aetna Bldg. Maintenance Co. v. 
West, (Cal) 246 P. (2d) 11, 25; Alex Foods v. Metcalf. 137 
Cal. App. (2d) 415, 290 P. (2d) 646; People v. Lewis, 365 
111. 156, 6 N. E. (2d) 175; People v. FicUe, 343 111. 367, 175 
N. E. 543; Seattle T. & T. Co. v. Seattle, 86 Wash. 594, 150 P. 
1134, 1137, or from the requests for aid it honors, see Village 
of Scribner v. Mohr, 90 Neb. 21, 132 N. W. 734, Ann. Cas. 
1912D, 1287; Sandefur-Julian Co. v. State, 72 Ark. 11, 77
S. W. 506. See also Hildebrand v. State Bar, 18 Cal. (2d) 816, 
117 P. (2d) 860; Urick v. Appeal Board. 325 Mich. 599, 39 
N. W. (2d) 85; People v. Levy, 8 Cal. App. (2d) 763, 50 P.



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 39

(2d) 509. If the proffer of assistance associated with 
42* appellant’s advocacy *affords an attraction to litiga­

tion seeking to secure civil rights, it springs from the 
very nature of a legitimate enterprise in which appellant 
has long engaged and is very different from the wrongful 
“ solicitation”  of which the courts take cognizance. Nash 
v. Douglass, supra.

Chapter 33 does not in terms condemn any of appellant’s 
activities and, in using the word “ solicitation,”  the legis­
lature chose a word of known legal import. In common with 
other like terms employed in the legislation which it amended, 
it is to be considered as having been used in its technical 
sense and according to its strict acceptation. See Campbell 
v. Third District Committee, 179 Va. 244, 18 S. E. (2d) 883; 
17 Michie’s Jurisprudence p. 320.

We think that it is quite apparent that the “ solicitation”  
that Chapter 33 condemns is the solicitation traditionally 
considered outside the legitimate scope of a lawyer’s activi­
ties and forbidden by the Canons of Professional Ethics. 
See McCloskeg v. Tobin, 252 U. S. 107. Thus construed, 
these standards of the legal profession do not give appel­
lant’s advocacy and assistance program the taint of im­
propriety. Canon 35, which was quoted with approval by 
this Court in Richmond A ss’n. of Credit Men v. Bar Asso­
ciation, 167 Va. 327, 334, 189 S. E. 153, 159, provides:

“ The professional services of a lawyer should not be con­
trolled 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 lawyer’s re­
lation to his client should be personal, and the responsibility 
should be direct to the client. Charitable societies rendering 
aid to the indigent are not deemed such intermediaries.

“ A lawyer may accept employment from any organization, 
such as an association, club or trade organization, to render 
legal services in any matter in which the organization, as an 
entity, is interested, but this employment should not include 
the rendering of legal services to the members of such an 
organization in respect to their individual affairs.”

Appellant is a charitable organization rendering aid to 
persons litigating issues of a particular type wdio without 
such aid would be unable to preserve their constitutional 
rights. It is organized and functions as a non-profit or-



40 Supreme Court of Appeals of Virginia

ganization and does not gain pecuniarily from the as- 
43* sistance *it thus affords. Nor does it exploit or con­

trol the professional services of the attorneys it em­
ploys or the attorneys whose clients accept its assistance, 
nor does it intervene between the attorney and the client in 
any sort of way. The evidence shows that once the attorney- 
client relation is established, appellant neither reserves nor 
exercises any control or direction over the litigation, this 
being a matter for the attorney and the litigant conformably 
to the canons (PI. Ex. R-9, pp. 256, 352-353).

The ethical propriety of appellant’s advocacy-assistance 
efforts is further demonstrated by Opinion 148 of the Com­
mittee on Professional Ethics and Grievances of the American 
Bar Association. Opinions Of The Committee On Profes­
sional Ethics and Grievances 308 (1957). A group of at­
torneys from various cities and towns throughout the United 
States had organized for the purpose of preparing and dis­
seminating opinions upon the constitutionality of legislation 
and for the voluntary defense of citizens not able financially 
to retain counsel to defend their rights, and it had been 
announced by radio that one or more of such lawyers would, 
without charge, defend in court the constitutional rights of 
any citizen unable to employ counsel for the purpose. The 
Committee concluded that these activities involved no in­
fringement of the canons. It said:

“ The right of citizens to organize and to give expression 
to views which they entertain upon public questions is one 
of the unalienable rights which Americans enjoy, and lawyers 
enjoy that right as citizens in common with their fellow 
men * * *

“ Moreover, in upholding their right to organize and ex­
press and promulgate their views we need not assume that 
these lawyers are actuated solely by altruistic motives. It 
would be extraordinary indeed if some of the lawyers in 
the list do not have some clients whose rights may he ad­
versely affected by the legislation which the lawyers con­
demn, hut their right to organize and declare their views 
cannot for that reason be denied, and no ethical principle 
is thereby violated * * *

“ With equal assurance we uphold the rights of lawyers 
and others who are in agreement with the policies set forth 
in the legislation complained of, to organize and express 
themselves. Lawyers, farmers and mechanics alike enjoy 
the right of free speech and a free press and the right peace-



ably to assemble and petition the government for a redress 
of grievances * * *

44* *“ The defense of indigent citizens, without compen­
sation, is carried on throughout the country by lawyers 

representing legal aid societies, not only with the approval, 
but with the commendation of those acquainted with the 
work. Not infrequently services are rendered out of sym­
pathy or for other philanthropic reasons, by individual law­
yers who do not represent legal aid societies. There is 
nothing whatever in the Canons to prevent a lawyer from 
performing such an act, nor should there be * * *

“ The Canon proscribing the solicitation of business is 
aimed at commercialization of the profession. It announces 
the principle that the practice of the law is a profession and 
not a trade, and that the effort to obtain clients by advertise­
ment is beneath the dignity of the self-respecting lawyer. 
It has to do, moreover, with the effort to obtain remunerative 
business— the endeavor to increase the lawyer’s practice with 
the end in view of enlarging his income. It certainly was 
never aimed at a situation such as this, in which a group of 
lawyers announce that they are willing to devote some of 
their time and energy to the interest of indigent citizens 
whose constitutional rights are believed to be infringed.”

The same considerations that differentiate good from evil 
in terms of ethical standards also necessitate construction 
of a statute in such manner that, while what is bad is pro­
scribed, that which is wholesome is preserved. In Gunnells 
v. Atlanta Bar A ss’n., 191 Ga. 366, 12 S. E. (2d) 602, a bar 
association prosecuted a campaign designed eradicate viola­
tions of the usury laws. As a part of its campaign, the asso­
ciation invited public cooperation in its endeavors and widely 
publicized its offer to furnish free legal representations to 
persons victimized by usurious interest charges. It was held, 
inter alia, that these activities did not constitute solicitation 
of legal business or barratry within the meaning of statutes 
upon those subjects. The Court said:

“ It is not wrongful to induce a repudiation of an illegal 
contract * * * Nor was the defendant’s offer to renresent free 
of charge persons caught in the toils of the usurious rnonev- 
lender in defending against such illegal exactions, and to 
represent them in bringing actions to recover amounts il­
legally paid under loan contracts a violation of Code, Secs. 
9-405, 9-9902, in reference to the solicitation of legal employ­
ment and the offense of barratry.

N.A.A.C.P. v. A. S. Harrison, Jr., Attv. Gen. of Va. 41



42

“ 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 al­
leged widespread violation of such laws and to seek to eradi­

cate the evil by the means *here shown. Much could be 
45 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.”

These holdings are but manifestations of long standing 
judicial approval of organizational assistance to impecunious 
suitors litigating issues of grave public concern even when 
offered by organizations serving a course in a controversial 
field._ See In B e: Ades, 6 P. Supp. 467, 475. The need for 
restrictive construction required by established constitu­
tional principles applicable to penal laws in derogation of 
common law immunities (ante p. 31 et seq.) is epitomized 
where, as here, it is urged that a statute condemning pro­
fessional touting should be stretched to outlaw a program 
which affords aid only to persons having justiciable eases 
involving issues of racial segregation or discrimination. In 
such matters the issue concerns to all racial minorities, and 
the interest of the individual litigant and the appellant is 
one and the same. Of. Canon 35. ante p. 42. As the A. B. A. 
Committee expressed it in Opinion 148 (ante pp. 43-44):

“ The question presented, with its implications, involves 
problems of political, social and economic character that 
have long since assumed the proportion of National issues, 
on one side or the other which multitudes of patriotic citizens 
have aligned themselves. These issues transcend the range 
of professional ethics.”

To affirm the judgment below is to open the validity of 
Chapter 33 to challenge from a variety of constitutional 
viewpoints already expounded (ante p. 13 et seq.). Given the 
scope which the Circuit Court declared it to have, it would 
abridge the exercise of First Amendment freedoms (ante p. 
14 et seq.). unreasonably fetter access to the federal courts 
(ante p. 22 et seq.), and otherwise infringe on liberties se­
cured by the Due Process Clause of the Fourteenth Amend­
ment (ante p. 19 et seq., p. 24 et seq.). On the other hand, 
it may have a wholesome operation in situations involving

Supreme Court of Appeals of Virginia



N.A.A.C.P. v. A. S. Harrison, Jr., Attv. Gen. of Va. 43

solicitation in the well understood sense. McCloskey v. Tobin, 
252 U. S. 107. That it be given a construction that will limit 

it to that area is demanded by precedent (ante p. 34 
46* et seq.).

*It is accordingly submitted that appellant’s acti- 
ties declared to be violative of Chapter 33 do not amount to 
an improper solicitation of legal or professional business or 
employment within the meaning of that chapter when prop­
erly construed in the light of appellant’s constitutional con­
tentions under settled rules of statutory construction.

2. Appellant’s Activities Declared To Be Violative Of 
Chapter 36 Do Not Amount To An Inducement To Commence 
Or Prosecute Law Suits Within The Meaning Of That Chap­
ter When Properly Construed In The Light Of Appellant’s 
Constitutional Contentions Under Settled Buies of Statutory 
Construction.

Each of the two prohibitions that Chapter 36 seeks to 
effect is limited by a specified term. Section 1 (a), which 
potentially embraces a variety of conduct, outlaws only those 
activities which operate as an “ inducement”  to the com­
mencement or further prosecution of legal proceedings. Sec­
tion 1 (b) is limited in its operation to an undertaking “ to 
advise, counsel or otherwise instigate”  the bringing of an 
action. Properly construed, these limitations effectively (ore- 
close interpretation that would subject appellant and attor­
neys associated with its program to its operation and pen­
alties.

The court below construed Chapter 36 to restrain appellant 
in all important aspects of its legal aid program which it 
considered to involve an “ inducement”  to litigation. But 
“ induce,”  by the general course of judicial decisions, is 
considered to be synonymous with “ persuade,”  “ procure,”  
“ obtain.”  “ influence,”  and “ instigate.”  See LaPaae v. 
United States, 146 F. (2d) 536, 156 A. L. B. 965 (C. A. 8th ); 
State v. Brown, 143 Wis. 405, 127 N. A\. 956, 957: It alike v. 
State, 168 Inch 615, 81 N. E. 584. 586: People v. Juskowitz, 
173 Misc. 685, 18 N. Y. S. (2d) 897, 903: Schaabe v. Estes, 
202 Mo. App. 372, 218 S. W. 908: Commonwealth v. Mason, 
175 Pa. Super. 576, 106 A. (2d) 877. Such definitions liardlv 
fit appellant’s activities. The evidence demonstrates that, 
in the normal acceptation of the words, it does not “ insti­
gate”  law suits, “ procure”  or “ obtain”  litigants or litiga­
tion, or “ persuade”  or “ influence”  specific appeals to tbe 
courts. It does not contribute monies toward litigation ex-



44 Supreme Court of Appeals of Virginia

penses until requested to do so by the ^litigant or the 
47* litigant’s own attorney (PI. Ex. R-9, pp. 253, 270-271, 

272, 319); and a course of action previously determined 
is not “ induced”  by the contribution later made. And ap­
pellant itself does nothing further in the way of assistance 
that could invite the operation of the statute. While it may 
also furnish assistance in the form of the advice or services 
of an attorney it employs, it is clear from the evidence that 
it is the attorney, and not the appellant, who gives the 
advice and renders the services. Consequently, there is no 
“ inducement”  or “ instigation”  to be found in any contri­
bution of monies or legal advice or services that appellant 
might arrange to afford.

Nor does the advocacy feature of its program—its general 
public recommendation that color restrictions be appropri­
ately litigated—invite the condemnation of the statute even 
when considered in the light of its willingness to aid those 
who are financially unable to litigate. The considerations 
here are much the same as those obtaining with respect to 
Chapter 33 (ante p. 40 et seq.) and need not be repeated. 
Advocacy, standing alone, presents no problem, and appel­
lant, in offering assistance to deserving litigants, merely af­
fords an opportunity to reduce or remove the economic 
burden of litigation. This does not establish an “ induce­
ment”  within the meaning of Section 1(a), see Morthlam1 v. 
Lincoln Notional Life Ins. Co., 220 Ind. 692, 42 N. E. (2d) 
41: State, v. Franco, 76 Utah 202, 289 P. 100; People v. Grout, 
38 Misc. 181, 77 N. Y. S. 321, or an “ instigation”  within the 
meaning of Sec. 1(b). See People v. Lewis, 365 111. 156. 6 
N. E. (2d) 175: People v. FicLe, 343 111. 367, 175 N. E. 543. 
See also State v. Fraher, 148 Mo. 143, 49 S. W. 1017.

Any effort to encompass within Chapter 36 the activities 
of attorneys affiliated with appellant’s program is doomed 
to failure. The only language in Section 1(a) that conld be 
utilized for this purpose is that which makes it unlawful 
“ to promise, give or offer, or to conspire or agree to promise, 
give or offer, * * * or to * * * donate, and * * * personal serv­
ices * * * or any other assistance as an inducement”  to the 
commencement or further prosecution of proceedings of the 
type specified. Since these attornevs do receive some compen­

sation for their advice and services, however small, 
48* they do not *“ give”  or “ donate”  such advice and serv­

ices. Furthermore, it is absurb to ascribe to the lovis- 
lature a purpose to outlaw all possibility that an attornev 
serve without compensation in a worthy case simply because 
the litigation involves the Commonwealth or one of its 
agencies. And the legislative iniunction that one not



N.A.A.C.P. v. A. S. Harrison, Jr., Attv. Gen. of Va. 45

“ promise”  or “ offer”  sucli services or assistance, if ap­
plicable to attorneys serving their clients, produces the result 
equally absurb, that all services and assistance by lawyers 
would be illegal since a promise and an offer are implicit 
in every such situation, even where the lawyer is paid. 
Finally, any doubt in this connection is removed by the ex­
press provision in Section 6 that

“ Nothing herein shall be construed to be in derogation of 
the constitutional right of real parties in interest to employ 
counsel or to prosecute any available legal remedy under the 
laws of this State.”

Nor could Section 1(b) have application to such attorney. 
A necessary ingredient to violation of this section is that 
the person rendering the advice or counsel be one “ whose 
professional advice has not been sought in accordance with 
the Virginia canons of legal ethics.”  (PI. Ex. R-9, pp. 524, 
532). The lawyers do not solicit their cases or clients; the 
attorney-client relation is established at the outset and is 
maintained throughout the litigation. As was demonstrated 
by the evidence, the attorneys appear in the course of the 
litigation for and on behalf of the individual litigants without 
control or direction by appellant as to the conduct of the 
case (PI. Ex. R-9, 256, 352-353) and, as heretofore fully con­
sidered {ante p. 42 et seq.), the propriety of their conduct, 
in terms of ethical considerations, is very clear.

We submit, therefore, that ordinary construction of the 
language of Chapter 36 would avoid the Circuit Court’s con­
clusions as to its applicability to appellant. More import­
antly, however, appellant’s objective in the activities which 
the court below held the statute to prohibit must be taken 
into account in interpreting its scope. The statutory lang­
uage judicially connotes a stimulation or goading to action— 
bad action, see Hughes v. Van B r u q g e n ,  44 N. M. 534, 105 

P. (2d) 494, 499; Snider v. Wimberly, 327 Mo. *491, 
49* 209 S. W. (2d) 239; Nye & Nissen v. United States, 168 

F. (2d) 846, 854, and is not referable to a good, virtuous 
and lawful act. See Cone v. Ivinson, 4 Wyo. 203, 35 P. 933. 
It could not encompass activities which deserve commenda­
tion in terms of historical precedent, see In Re: Ades, 6 F. 
Supp. 467, and modern ethical standards (ante p. 42 et seq.)

The character of the legislation demands a limiting con­
struction to activities plainly within its preview. Chapter 
36 is a legislative affirmation of the common law of main­
tenance, and limitations broadly recognized in the common 
law would exempt appellant from the charge of maintenance



46

(ante p. 20 et seq.). The statutory language does not mani­
fest a clear purpose to so far exceed common law doctrine 
as to embrace appellant within its prohibitions (ante pp. 
32-34) or, as a penal statute, to render appellant amenable 
to prosecution thereunder (ante pp. 31-32).

A construction of Chapter 36 making it applicable to ap­
pellant’s activities would raise the broad question whether 
the State may make it a crime for an organization interested 
in securing freedom from racial segregation and discrimi­
nation to assist litigants in the prosecution of law suits in­
stituted to promote this cause. This legislation could not 
hope to survive the principles, already discussed (ante, p. 
13 et seq.), that would condemn its prohibitions on the exer­
cise of constitutionally protected freedoms and liberties as 
a deprivation of Fourteenth Amendment due process and 
its discriminatory operation upon appellant as a denial of 
the equal protection of the laws. On the other hand, con­
struction in the light of these constitutional objections, by the 
application of judicial canons designed to avoid serious 
constitutional implications (ante, pp. 34-36), would save the 
statute for useful operation in areas in which it might legiti­
mately apply.

It is respectfully submitted that appellant’s activities 
declared to be violative of Chapter 36 do not amount to an 
improper inducement to litigation within the meaning of that 
statute when properly construed in the light of appellant’s 
constitutional contentions under settled rules of statutory 
construction.

50* "CONCLUSION.

For the foregoing reasons, appellant respectfully submits 
that the order appealed from is erroneous in the particulars 
herein complained of and should as to those particulars be 
set aside.

Wherefore, appellant prays that an appeal be granted 
in its behalf from said order, and that the parts of said 
order complained of herein be reviewed and reversed, and 
that the court below be directed to enter a further order de­
claring that Chapters 33 and 36 are inapplicable to the 
activities of appellant.

Counsel for appellant desire and hereby request that they 
be permitted to apply, and to present this petition, to the 
Honorable Harold F. Snead, one of the Justices of this Court, 
for an appeal from said order in the particulars herein com­
plained of, and to then state and argue orally to him the 
reasons for reviewing said order.

Supreme Court of Appeals of Virginia



N.A.A.C.P. v. A. S. Harrison, Jr., Atty. Gen. of Va. 47

Appellant adopts this petition as and in lieu of its opening 
brief.

Counsel for appellant hereby certify that on the 23rd day of 
June, 1959, copies of this petition for appeal were mailed, 
with first class postage prepaid, to David J. Mays, Esquire, 
and Henry T. Wickham, Esquire, 1407 State-Planters Bank 
Building, Richmond, Virginia, and C. F. Hicks, Esquire, 
Gloucester, Virginia, opposing counsel in the trial court. 
The original of this petition is filed with the Clerk of this 
Court at Richmond, Virginia.

N. A. A. C. P. LEGAL DEFENSE 
AND EDUCATIONAL FUND, IN­
CORPORATED, Appellant,

By SPOTTSWOOD W. ROBINSON, III, 
623 North Third Street,
Richmond 19, Virginia.

Of Counsel for Appellant.

THURGOOD MARSHALL,
10 Columbus Circle, Suite 1790,
New York 19, New York.

SPOTTSWOOD W. ROBINSON, III,
623 North Third Street,
Richmond 19, Virginia.

Counsel for Appellant.

51* C ER TIFIC ATE.

I, Spottswood W. Robinson, III, of counsel for the ap­
pellant, do hereby certify that the name of the party seeking 
this appeal is N. A. A. C. P. Legal Defense and Educational 
Fund, Incorporated, and that the names of the parties against 
whom the appeal is sought are Albertis S. Harrison, Jr., 
Attorney General of Virginia, T. Gray Haddon, Common­
wealth’s Attorney for the City of Richmond, Virginia, Wil­
liam L. Carleton, Commonwealth’s Attorney for the City of 
Newport News, Virginia, Linwood B. Tabb, Commonwealth’s 
Attorney for the City o f Norfolk, Virginia, William J. 
Hassan, Commonwealth’s Attorney for the County of Ar­
lington, Virginia, and Frank N. Watkins, Commonwealth’s 
Attorney for the County of Prince Edward, Virginia.

SPOTTSWOOD W. ROBINSON, ITT.



CERTIFICATE.

I, Spottswood W. Robinson, III, an attorney duly qualified 
to practice in the Supreme Court of Appeals of Virginia, 
with address at 623 North Third Street, Richmond 19, Vir­
ginia, do hereby certify that in my opinion the order com­
plained of in the foregoing petition for appeal ought to be 
reviewed.

48 Supreme Court of Appeals of Virginia

SPOTTSWOOD W. ROBINSON, III.