Anderson v. City of Albany, GA Brief for Appellants

    I n  the

Initefc i>tatpa (Burnt rtf Apprala
F or the  F ift h  Circuit 

No. 20,501

W. G. A nderson, et al.,
Appellants,

— v .—

T he City of A lbany, Georgia, et al.,
Appellees.

BRIEF FOR APPELLANTS

C. B. K ing
221 South Jackson Street 
Albany, Georgia

D onald L. H ollowell 
Cannolene Building 
859% Hunter Street, N.W. 
Atlanta, Georgia

Constance Baker Motley 
J ack Greenberg 
Norman A maker

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



I N D E X
PAGE

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

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

Specifications of Errors ................................................ 14

A rgument

I. Dismissal of This Cause by the Court Below on 
the Ground That the Action Was Not Main­
tainable by Appellants as a Class Suit Was 
Erroneous ...............      15

II. Refusal to Enjoin Continuation of Appellees’ 
Policy and Practice of Enforced Segregation 
in Its Public Facilities and to Enjoin Inter­
ference With Peaceful Protest Against That 
Policy and Practice Denied Appellants’ Consti­
tutional Rights ..................    22

Conclusion .................................................     27

T able of Cases

Bailey v. Patterson, 369 D. S. 31, 7 L. ed. 2d 512
(1962) ..................................................................15,21,24

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) ....... 20
Blazer v. Black, 196 F. 2d 139 (1952) ........ ................... 26
Bowles v. J. J. Schmidt and Co., 170 F. 2d 617 (2nd

Cir. 1948) ...................................................................  26
Browder v. Gayle, 352 U. S. 903 (1956), affirming 142 

F. Supp. 707 (M. D. Ala. 1956) 24



11

PAGE

Brown v. Board of Trustees of LaGrange, Ind. School 
Dist., 187 F. 2d 20 (1951) ....................................... 15

Cantwell v. Connecticut, 310 U. S. 296 (1940) ..........  25
City of Montgomery v. Gilmore, 277 F. 2d 364 (5th

Cir. 1960) ..... ...........................................................  22
City of St. Petersburg v. Alsup, 238 F. 2d 830 (5th

Cir. 1956) .....................................-.......................... 24
Cobb v. Montgomery Library, 207 F. Supp. 880 (M. D.

Ala. 1962) .......................... .......................................  24

Dawson v. Mayor of the City of Baltimore, 220 F. 2d 
386 (4th Cir. 1955), aff’d 350 U. S. 877 .............. ...... 23

Edwards v. South Carolina, -----TJ. S. ------ , 9 L. ed.
2d 697 (1963) .............................................................  25

Evers v. Dwyer, 358 U. S. 202 (1958) ...................... 20, 21

Fields v. South Carolina (1963), ------ U. S. ----- , 9
L. ed. 2d 965 ........................... ................................. 25

Fireside Marshmallow Co. v. Frank Quinlan Construc­
tion Co., 199 F. 2d 511 (8th Cir. 1952) ..................... 26

Flowers v. City of Memphis, Civ. No. 3958 (W. D. 
Tenn. July 11, 1962) ....... .......................................... 24

Gibson v. Board of Public Instruction of Dade County, 
Florida, 246 F. 2d 913 (1957) ...................................  18

Hague v. C. I. O., 307 U. S. 496 (1939) ..................... 25
Hanes v. Shuttlesworth, 310 F. 2d 303 (1962), affirming 

Shuttlesworth v. Gaylord, 202 F. Supp. 59 (N. D.
Ala. 1961) .................................................................  20

Holmes v. City of Atlanta, 350 H. S. 879 (1955) ..........  24
Hutches v. Renfroe, 200 F. 2d 337 (5th Cir. 1952) ......  26



Ill
PAGE

McCabe v. Atchison, Topeka & S. F. Ry. Co., 235 U. S.
151, 59 L. ed. 169, 25 S. Ct. 69 (1914) ............. ....... 15

Potts v. Flax, 313 F. 2d 284 (1962)............... ................ ig

Tate v. Department of Conservation and Development,
352 U. 8. 838 (1956) ..............................................._ ’ 24

Thornhill v. Alabama, 310 IT. S. 88 (1940) .................  25
Turner v. City of Memphis, 369 IT. S. 350 (1962) ..... 24
Turner v. Randolph, 195 F. Supp. 677 (W. D Tenn 

1961) ........................................................... .............  24



I n the

Itttfrft Butw  ( to r t nf Appeals
F or the  F ift h  Circuit

No. 20,501

W . G. A nderson, el al.,
Appellants,

T h e  City of A lbany, Georgia, et al.,
Appellees.

BRIEF FOR APPELLANTS

Statement of the Case

This appeal is from a final order of the United States 
District Court, Middle District of Georgia, Albany Divi­
sion, entered March 15, 1963. The order appealed from 
dismissed this action, consolidated with two other related 
cases, after a full trial on the merits. The two other cases 
remain undecided.

All three cases arise out of attempts by the Albany Move­
ment, an unincorporated association of individuals, pre­
dominantly Negroes, to desegregate publicly owned and 
operated recreational, library and auditorium facilities in 
the City of Albany, Georgia. Desegregation of taxicabs, 
theatres, local buses, the bus depot and train station were 
also objectives. In addition, the Albany Movement sought 
to persuade private business establishments, such as de­
partment stores patronized by Negroes, to employ Negroes 
and to end discriminatory treatment of Negroes within 
these establishments (R. Vol. Y, pp. 25B-26B).



2

Desegregation of all public facilities was initially sought 
by petitioning the appellee Mayor and Board of Commis­
sioners of the City of Albany to change the City’s separate- 
but- equal policy in the order of priority suggested by the 
Albany Movement. City officials flatly refused all demands. 
This blanket refusal led to a different approach designed 
to force the City officials to negotiate the issues, i.e., peace­
ful picketing and non-violent protest demonstrations against 
segregation. Department stores were picketed, Negro and 
white demonstrators attempted to use public facilities on 
an integrated basis, and prayer vigils were held or at­
tempted in front of City Hall by groups led to the center 
of town by the leaders of the Albany Movement in columns 
of two walking on the sidewalk and observing traffic signals.

The first case, filed in the court below on July 20, 1962 by 
the Mayor, the City Manager and the Chief of Police of 
Albany sought to enjoin these protest demonstrations and 
the picketing. The complaint alleged that the action was 
brought:

” . . .  to vindicate rights of the citizens and inhabitants 
of the City of Albany, Georgia, a public corporation, 
to the free and equal use of the streets, sidewalks and 
other public places in and about the City of Albany; 
to secure to said citizens and inhabitants equal pro­
tection of the laws as guaranteed to them by the Con­
stitution of the United States; and to secure to said 
citizens and inhabitants the free and uninterrupted use 
of their respective private properties, free from or­
ganized mass breaches of the peace which tend to pre­
vent and hinder plaintiffs and other duly constituted 
authorities from according to said citizens and inhabi­
tants the equal protection and due process of the law.”

The relief sought was an injunction enjoining the Albany 
Movement and others from:



3

“ . . . continuing to sponsor, finance, incite or encourage 
unlawful picketing, parading or marching in the City 
of Albany, from engaging or participating in any un­
lawful congregating or marching in the streets or other 
public ways in the City of Albany, Georgia; or from 
doing any other act designed to provoke breaches of 
the peace or from doing any act in violation of the 
ordinances and laws [parading without a license, dis­
turbing the peace, etc.] hereinbefore referred to.”

Based upon the allegations of this complaint, a tempo­
rary restraining order without notice was issued by the 
court below enjoining the Albany Movement, and others, 
as requested on July 20, 1962 at 10:55 o’clock P. M. and 
setting a hearing on the restraining order for July 30, 1962. 
Thereafter, the District Judge left the state. On July 24, 
1962, on application of the Albany Movement and others, 
an order was entered by Chief Judge Tuttle of this Court 
vacating the temporary restraining order on the ground 
that: 1 ) the court below was clearly without jurisdiction 
to enter such an order, and 2) the order was under the 
circumstances a temporary injunction, since the District 
Judge had been absent from the state ever since defendants 
had notice of the signing of the order.

The second case, the instant appeal, was filed on July 24, 
1962 to enjoin city officials from continuing to enforce 
racial segregation in public libraries, parks, playgrounds, 
and the city’s auditorium. Plaintiffs also sought to enjoin 
the enforcement of racial segregation in privately owned 
and operated buses, taxicabs, theatres and other places of 
public amusement as required by local ordinances. In addi­
tion, the prayer of the complaint sought to enjoin defen­
dants from threatening to arrest, arresting, and harrassing 
plaintiffs and members of their class while utilizing or 
attempting to utilize public or privately owned facilities



4

referred to in the complaint. With the complaint, appel­
lants filed a motion for preliminary injunction with notice 
that the motion would be brought on for hearing on August 
1, 1962. However, this motion was not heard until August 
30, 1962 because on August 1, 1962 the trial court was 
hearing testimony in the City’s suit. That testimony was 
heard after the motion of the Albany Movement and others 
to dismiss that suit on the ground that, as Judge Tuttle 
had held, “the federal court clearly had no jurisdiction to 
hear such a case” was overruled. Testimony in the City’s 
case commenced on July 30 and continued through August 
3rd, recessed until August 7, and ended August 8, 1962.

At the conclusion of the City’s case, appellants requested 
an early hearing on their motion for preliminary injunction 
in this case which was denied on the ground that the court 
had other business. Hearing on the motion for preliminary 
injunction did not commence until August 30 at 2 o’clock 
P. M., at which time, over the objections of appellants, the 
instant case was consolidated with the City’s case and a 
second case brought by appellants and others to enjoin in­
terference with peaceful picketing and protests against 
segregation.

After consolidation, appellees were permitted to argue 
their motion to dismiss the complaint for approximately 
2% hours. After a brief argument by appellants, decision 
on the motion was withheld pending testimony. Testimony 
did not begin until August 31, 1962. Appellants concluded 
their case at the end of that day. The court then continued 
the hearing until further notice. Appellants moved for an 
immediate preliminary injunction based on the testimony 
already before the court and the testimony in the City’s 
case. This was denied (E. Yol. V. pp. 197 B-198 B). Testi­
mony in the instant case was not resumed until September 
26, 1962 and concluded on that date. Testimony in the third 
suit brought by appellants was also concluded on that day.



5

The third suit, the second filed by appellants, also had 
been filed on July 24, 1962. It seeks to enjoin city officials 
from continuing to deny Negro citizens the right to peace­
fully picket and protest against racial segregation in the 
City of Albany, and from continuing to thwart such activ­
ity by arrest, threat of arrest, abuse of state court process, 
state court injunction, harassment and intimidation.

By agreement of counsel for both parties, at the conclu­
sion of all the testimony on September 26, 1962, the court 
below considered the testimony as that offered on a final 
hearing.

At the conclusion of the testimony on September 26, 1962, 
appellants also renewed their motion for a preliminary 
injunction (R. Vol. VI. pp. 318 B-319 B). However, there 
was no ruling by the court until February 14, 1963, when 
appellees’ motion to dismiss was granted dismissing this 
case on the ground that appellants had not, themselves, 
been denied admission to or segregated in any public facil­
ity, and, since appellants had not been denied or segre­
gated, they could not sue for the class which they purported 
to represent (R. Vol. VI. pp. 324 B-328 B).

A notice of appeal was filed after the opinion and order 
dated February 14,1963 (R. Vol. VI. p. 329 B). Thereafter, 
the District Judge, pursuant to inquiry by appellants’ 
counsel as to whether this was the final order, entered 
another order on March 15, 1963 dismissing the case. This 
order has been sent up in a supplemental record. A second 
notice of appeal was filed on the same date (R. Vol. VI. 
p. 329 B). The record was docketed here on April 24, 1963.

The testimony in all three cases has been brought here 
because the cases were consolidated for trial, thus making 
the testimony common to all. Moreover, the prayer of the 
complaint in the instant action was for “such other, fur­
ther, additional or alternative relief as may appear to a



6

court of equity to be equitable and just in the premises”, 
thus entitling appellants to any other relief to which the 
evidence might show they are entitled whether they have 
specifically prayed for it or not.

This appeal is, therefore, from the final order dismissing 
the case after a full trial on the merits and from failure 
of the court below to grant an injunction enjoining: 1 ) 
state enforced racial segregation in all public parks, libra­
ries and the City auditorium, whether by policy, custom 
or usage; 2) enforcement of the City ordinances requiring 
segregation in taxi-cabs, at theatres, and on buses; 3) ar­
rests for peaceful picketing of department stores and other 
private business establishments open to the public; 4) 
arrests for orderly prayer vigils in front of City Hall; 
5) arrests for walking two abreast on the sidewalks to 
City Hall while observing all traffic signals; 6) arrests for 
attempting to use public recreation, transportation, and 
library facilities on an integrated basis.

Statement of the Facts

The plaintiffs in this case are Dr. W. G. Anderson, presi­
dent of the Albany Movement, Elijah Harris, Slater King 
and Emanuel Jackson, members of the Albany Movement, 
who brought this suit on behalf of themselves as residents 
of the City of Albany, Georgia and other members of the 
Albany Movement similarly situated (R. Vol. Y, pp. 119B- 
120B, 127B-128B).

All public facilities in Albany are under the immediate 
jurisdiction of the City Manager who is responsible to the 
City Commissioners. The City Commissioners, as well as 
the City Manager, were made defendants in this suit. The 
library facilities in Albany are under the control of the 
Board of Trustees of the Carnegie Library. The trustees



7

are appointed by the City Commissioners. The members 
of this Board were also made defendants in this action (R. 
Vol. V,pp. 28B-30B, 43B).

Recreational policy for the City is determined by the 
Commissioners (R. Vol. V, pp. 29B-30B). Library policies 
are determined by the Board, but with respect to the re­
quest by Negro residents of Albany to desegregate the 
libraries, the Board determined that it would let the City 
Commissioners make that decision since it contributes the 
most financial assistance (R. Vol. VI, p. 226B).

The Albany Movement, a non-violent anti-segregation 
protest organization organized in November 1961, has as 
its purpose desegregation of all publicly owned or oper­
ated facilities and private businesses patronized by Negroes 
in the City of Albany. Employment of Negroes is also a 
program objective (R. Vol. V, pp. 25B-26B, 120B-121B, 
139B). At the first meeting, the minutes reveal, the organi­
zation decided to seek to achieve its goals in the following 
order: bus stations, train stations, libraries, parks, hospi­
tals, local city buses, municipal employment, jury repre­
sentation, job opportunities in private employment (PI. 
Exh. 1). The organization also decided that one of the 
grievances it would seek to have redressed by city officials 
was the matter of police brutality (PI. Exh. 1, No. 730).

Prior to the organization of the Albany Movement, Dr. 
Anderson met with the appellee mayor of Albany and sug­
gested to him that a biracial committee be appointed to 
bring about desegregation of all public facilities. The mayor 
never replied to this request (R. Vol. V, pp. 102B-103B).

November 1961, Dr. Anderson and three others met with 
the mayor and presented him with a copy of the minutes 
of the first meeting. At this meeting, Anderson asked the 
mayor to “prevail upon the City Commission to seek means



of peaceful desegregating the City of Albany’s public facili­
ties” (R. Vol.V,p. 103B).

At the next regular meeting of the appellee Commis­
sioners, Dr. Anderson appeared and requested a reply to 
the Albany Movement’s desegregation requests. The mayor 
replied that these requests had been considered but there 
were no common grounds for agreement (R. Vol. V, pp. 
104B-105B).

Thereafter, in January 1962, after another appearance 
by Dr. Anderson at a regular meeting of the Commission, 
a written statement was published in a local newspaper, the 
Albany Herald, setting forth the Commission’s views (PL 
Exh. 4, R. Vol. V, pp. 54B-59B, 105B-106B). Dr. Anderson 
appeared before the Commission on a subsequent occasion, 
again with reference to the Albany Movement’s demands, 
but no action was taken (R. Vol. V, pp. 59B-60B).

In addition, Dr. Anderson, as president of the Albany 
Movement, discussed desegregation of all public facilities 
with the mayor on numerous occasions and requested action 
but none was taken (R. Vol. V, pp. 55B-56B, 83B). Finally, 
with respect to all requests for desegregation, the City 
Commissioners advised Dr. Anderson to “go to court” since 
there were no areas of agreement (R. Vol. IV, pp. 777A- 
778A, 781A-783A).

Upon the hearing, the mayor admitted that the City Com­
missioners had discussed desegregation of the swimming 
pool and recreational facilities in the parks and the public 
libraries (R. Vol. V, pp. 35B, 37B, 40B-41B, 45B). The 
Commission also discussed the city ordinances requiring 
racial segregation (R. Vol. V, pp. 47B-50B). One ordinance 
required segregation on buses. Another ordinance required 
discrimination by taxicabs in that the taxicabs were re­
quired to carry only Negro or white passengers and to 
indicate same by a sign on the door of the cab. The third



9

ordinance required that theatres provide separate lines for 
Negroes and whites seeking to purchase tickets (PI. Exhs. 
2 and 3). In addition, the City Commissioners had dis­
cussed segregation in the waiting rooms of the train and 
bus stations sought to be desegregated by the Albany Move­
ment and where Negroes had been arrested following the 
ICC order of November 1, 1961 prohibiting segregation 
(R. Vol. V, pp. 51B-52B). However, despite these discus­
sions there was no official action taken (R. Vol. V, pp. 
55B-56B).

The City’s policy was best defined by the mayor’s candid 
pronouncements on cross examination by his own counsel. 
He described, in detail, the separate facilities available to 
Negroes and asserted that they were comparable to those 
available to whites, based upon the relative population 
percentages of the two groups. There is no doubt in this 
record about the City’s policy. The mayor stated, for ex­
ample, that Carver Park was “designed” for members of 
the Negro community (R. Vol. V, pp. 60B-61B, 63B-64B) 
and that he and the other white people in Albany would 
rather see the swimming pools closed than integrated (R. 
Vol. V, pp. 64B-65B, 76B-77B).

The P arks

There are three major parks in the City of Albany— 
Tift Park, Carver Park and Tallulah Massey Park (R. 
Vol. V, p. 28B). Both Tift Park and Tallulah Massey 
Park were designed for the white citizens of Albany, 
although Negroes were permitted to use picnic areas in 
Tift Park and to visit the zoo (R. Vol. V, pp. 30B, 32B, 
40B). The swimming pool and rides for children in Tift 
Park were restricted to whites. Tift Park contains an 
Olympic sized swimming pool which is the only one in the 
City (R. Vol. VI, p. 250B). Carver Park has a much



10

smaller pool (E. Vol. V, pp. 31B-32B; Vol. VI, p. 234B). 
The parks were closed by the police daring the Albany 
Movement’s attempts to desegregate Tift Park (R. Yol. 
VI, pp. 259B-268B). They have remained closed except 
for the zoo and the concession stands (E. Vol. VI, pp. 
256B-257B). These parks also contain teen centers, the 
one in Tift Park being limited to white teenagers. Tift 
Park also has a hobby shop limited to whites. A similar 
facility was located in the teen center in Carver Park 
(R. Vol. V, pp. 32B-33B).

Libraries

There are two libraries in the City of Albany, the main 
library, Carnegie Library, is limited to white citizens. 
Albany recently constructed at a cost of $25,000 a newT 
library known as the Lee Street Branch for Negroes. 
“If a person [Negro] wants a book from the Carnegie 
Library, all he has to do is to request it and it will be made 
available at the other library” (R. Vol. V, pp. 43B-44B, 
63B). The libraries were closed also by the police depart­
ment, without the knowledge of the Board of Trustees of 
the Carnegie Library, after Negroes attempted to use the 
Carnegie Library (R. Vol. VI, p. 221B).

A u ditoriu m

The auditorium in controversy is owned and operated 
by the City but is sometimes leased to private groups 
for functions either limited to the membership of the 
group or open to members of the public. Seating in the 
auditorium is segregated (R. Vol. V, pp. 86B-88B). When­
ever Dr. Anderson has visited the auditorium he has been 
directed to the area reserved for Negroes (R. Vol. V, pp. 
111B-112B). The City permits the lessee of the auditorium 
to determine whether the patrons of the affairs will be 
segregated (R. Vol. V, p. 86B).



11

T he C ity’s T ran sporta tion  Facilities

The Cities Transit, Inc. operated buses in the City of 
Albany pursuant to a franchise granted by the City. 
Negroes sought to desegregate the buses in Albany through 
the Albany Movement. When the Albany Movement failed 
to accomplish this, Negroes refused to ride the buses, 
as a result of which the bus company went out of business 
and is still out of business (R. Vol. V, pp. 67B-68B). 
However, Negroes were arrested following the I. C. C. 
order of November 1961 in the interstate bus depot and 
in the train station for going into the white waiting room 
and restaurant (R. Vol. I, pp. 153A-155A, 159A-160A, 
162A; Vol. V, pp. 167B-169B).

P laintiffs’ Use o f P ublic  Facilities

Plaintiff Anderson testified that he went to Tift Park 
for the purpose of swimming one Sunday in July 1962; 
the Negro pool in Carver Park was closed (R. Vol. V, 
p. 137B). A member of his party, a white person from 
New York City, sought to purchase a ticket for admission 
to the pool and was denied (R. Vol. V, pp. 137B-138B). 
Anderson’s son was refused when he sought to ride on the 
the rides for children in the Park (R. Vol. V, pp. 108B- 
110B). Anderson had been segregated in the city audito­
rium on at least four occasions (R. Vol. V, p. 112B). 
The other plaintiffs did not testify as to the use of any 
public facilities. The court would not permit Dr. Anderson 
to testify about his inability to secure taxicabs for guests 
in his home on the ground that a cab driver had a right 
to carry anyone he chose and there was no connection 
with the City of Albany shown although the evidence is 
clear that taxicabs in Albany are marked “For White” 
or “For Colored” as required by City Ordinance (R. Vol. 
V, pp. 144B-148B, 98B, 71B, PI. Exh. 3).



12

A rrests o f  A ppellan ts and O thers

After petitioning city officials to desegregate public facil­
ities, appellants did not use or attempt to use any public 
facility in the City of Albany reserved for white persons, 
except Appellant Anderson who attempted to swim in 
the pool at Tift Park. He was not arrested on that oc­
casion. However, other Negro persons were arrested when 
they tried to use the library in the City of Albany (R. Vol. 
V, pp. 110B-111B). A Negro girl was arrested for 
refusing to move to the back of a local city bus when 
the buses were in operation (R. Vol. V, pp. 155B-162B; 
Vol. VI, pp. 199B-211B). A Negro man was arrested 
when he and a companion went into the white restaurant 
in the Trailways Bus Terminal in Albany (R. Vol. V, 
pp. 167B-169B). After the I. C. C. ruling of November 1, 
1961, barring segregation, Negroes were repeatedly ar­
rested in the white waiting room of the Trailway Bus 
station (R. Vol. I, pp. 153A-155A, 159A-160A, 162A). 
A cab driver was arrested for carrying white passengers, 
without charge, who were stranded on the outskirts of 
the City and requested that he drive them into the City. 
This driver was convicted and fined (R. Vol. V, pp. 96B- 
102B). Negro high school students were arrested by the 
Chief of Police when they conferred with the owner of 
a local theatre about the owner’s segregation policy which 
resulted in the students having to leave their seats on 
one occasion to make room for the white patrons in the 
Negro section (R. Vol. V, pp. 178B-185B).

Appellant Anderson was arrested in front of City Hall 
for picketing (R. Vol. V, p. 149B; Vol. I, pp. 144A-145A) 
and for picketing in front of department stores along 
with appellants King, Harris and Jackson (R. Vol. IV, 
pp. 889A-891A). When appellants were arrested, they 
were carrying signs in front of stores in the 100 block



13

of North Washington Street, Two of them wTere on one 
side of the street and two on the other (R. Vol. V, pp. 
149B-151B). The sign carried by Dr. Anderson read: 
“Walk, live and spend in dignity” (R. Vol. IV, p. 889A). 
Other Negroes were also arrested for similarly picketing 
in small numbers (R. Vol. I, p. 249A). Still others in 
small numbers were arrested for participating in a prayer 
vigil in front of City Hall (R. Vol. I, pp. 144A-145A, 
146A). Appellant Anderson was also arrested for leading 
a group of persons to City Hall while walking on the 
sidewalk two abreast. Dr. Anderson testified traffic signals 
were observed. The Chief of Police testified they were not 
(R. Vol. I, pp. 41A-43A; Vol. IV, pp. 895A-896A).

V iolence

There was never any violence in the use of parks by 
Negroes or whites at the time that the Chief of Police 
closed them and at the time Negroes sought to use the 
libraries. The Chief merely anticipated violence (R. Vol. 
VI, pp. 259B-261B; Vol. V, pp. 110B-111B). As a matter 
of fact, there was never any violence on the part of any 
appellant or others identified as members of the Albany 
Movement.

P erm it D enied

A permit to hold a protest demonstration against segre­
gation was denied the Albany Movement by the City Man­
ager whose duty it is to issue permits for parades or 
demonstrations (R. Vol. IV, p. 893A).



14

Specifications of Errors

The court below erred in :
1. Granting appellees’ motion to dismiss this cause on 

the ground that appellants were not arrested or 
segregated in the use of any public facility and con­
sequently could not maintain this action as a class 
action on behalf of others who were so arrested 
or segregated.

2. Refusing to enjoin the appellees from:
a. continuing to enforce racial segregation in pub­

licly owned and operated libraries;
b. continuing to enforce racial segregation in the 

publicly owned and operated auditorium;
c. continuing to enforce racial segregation in pub­

licly owned and operated parks and playgrounds 
and the recreational facilities thereof;

d. continuing to enforce racial segregation in pri­
vately owned and operated buses and bus depots;

e. continuing to enforce racial segregation in pri­
vately owned and operated taxicabs;

f. continuing to enforce racial segregation in pri­
vately owned and operated theatres and other 
places of public amusement.

3. Refusing to enjoin appellees, Asa Kelley, Mayor of 
Albany, Stephen Roos, City Manager, The Board of 
City Commissioners and Laurie Pritchett, Chief of 
Police from denying appellants’ right of peaceful 
protest against racial segregation by arrests for 
peacefully walking two abreast upon the public side­
walks of the City of Albany observing all traffic



15

regulations, by arrests for prayer vigils, by arrests 
for peaceful picketing, and by denial of permits or 
appropriate approval for peaceful demonstrations.

A R G U M E N T

I.

Dismissal of This Cause by the Court Below on the 
Ground That the Action Was Not Maintainable by Ap­
pellants as a Class Suit Was Erroneous.

In its opinion of February 14, 1963, the court below cit­
ing Bailey v. Patterson, 369 U. S. 31, 7 L. ed. 2d 512 (1962) 
and McCabe v. Atchison, Topeka & S. F. By. Co., 235 U. S. 
151, 59 L. ed. 169, 25 S. Ct. 69 (1914) as well as Brown 
v. Board of Trustees of LaGrange, Ind. School Dist., 187 
F. 2d 20 (1951), ruled that appellants here did not repre­
sent the class on whose behalf they brought suit because 
it had not been shown that they had ever been denied 
access to the public facilities in suit or had been compelled 
to use them on a segregated basis. The Court stated that:

. . . the plaintiffs have not been denied the rights nor 
suffered the injuries referred to in the complaint. This 
being so, the plaintiffs lack standing to seek injunctive 
relief for others who may have been injured, because 
the plaintiffs cannot represent a class of whom they 
are not a part (R. Yol. VI, p. 328B).

The Court, therefore, also denied relief to appellants in 
their individual capacities. Appellants submit that the 
court below erred because it failed to accord proper sig­
nificance to 1 ) the character of the action brought and, 
2) the facts relative to appellants’ standing as revealed in 
the record.



16

1) The character of this suit is essentially the same as 
the action brought on behalf of Negro school children to 
desegregate the public school system of Fort Worth, Texas, 
in Potts v. Flax, 313 F. 2d 284 (1962). As in Potts v. Flax, 
appellants here instituted this action for the purpose of 
eradicating a city-wide policy of racial discrimination 
against Negroes in the use of the Albany, Georgia public 
facilities. Though this action does not seek class injunctive 
relief against school segregation, the principles which this 
Court found determinative of the propriety of the existence 
of a class suit in Potts are controlling here where the in­
terests of an entire community of Negro citizens are in­
volved.

In Potts v. Flax, supra, this Court said that:
Properly construed the purpose of the suit was not to 
achieve specific assignment of specific children to any 
specific grade or school.4 The peculiar rights of spe­
cific individuals were not in controversy. It was di­
rected at the system-wide policy of racial segregation. 
It sought obliteration of that policy of system-wide 
racial discrimination. In various ways this was sought 
through suitable declaratory orders and injunctions 
against any rule, regulation, custom or practice having

4 Contrary to the formal suggestion of mootness or want of 
parties filed with us by the Board, maintenance of a case making 
a frontal attack on a policy of system-wide segregation does not 
depend on the presence of one specific child making formal demand 
for admission to an all-white school as the one closest to the 
student’s residence. Plans for desegregation often provide for this 
during the transitional stage. But the constitutional right asserted 
is not to attend a school closest to home, but to attend schools 
which, near or far, are free of governmentally imposed racial dis­
tinctions. Incidents are not required to ‘make’ a ease. Gibson v. 
Board of Public Instruction of Dade County, 5 Cir. 1957, 246 F. 2d 
913; Baldwin v. Morgan, 5 Cir. 1958, 251 F. 2d 780, 787. The fact 
that one or more of the Teal children or the Flax child may no 
longer live closer to a white school does not alter this suit.



17

any such consequences. The case therefore had those 
elements which are sometimes suggested as a distinc­
tion between those which are, or are not, appropriate 
as a class suit brought to5 vindicate constitutionally 
guaranteed civil rights. The pleaded reason for chal­
lenging the class suit was, therefore, unfounded. 313 
F. 2d at 288-289. (Emphasis supplied.)

Appellants submit that “properly construed” the purpose 
of this suit was to achieve relief against the long-standing 
policy of racial discrimination directed against the residents 
of Albany, Georgia as a class and the principles which con­
strained this Court in Potts to hold that class relief was 
appropriate are applicable here.

2) In Potts, the propriety of a class suit was determined 
by “what the total record revealed, not upon the conclusory 
declarations (pleaded or oral) of the litigants.” 313 F. 2d 
288. Due consideration of what the total record here re­
veals supports the conclusion that contrary to the lower 
court’s determination, these appellants have in fact been 
denied the rights and suffered the injuries referred to in 
the complaint and, therefore, have ample standing to seek 
injunctive relief for themselves and for the class of which 
they are a part.

5 See 2 Barron & Holtzoff §562.1 (Wright ed. 1961) ; and com­
pare Reddix v. Lucky, 5 Cir., 1958, 252 F. 2d 930, and Sharp v. 
Lucky, 5 Cir., 1958, 252 F. 2d 910.

Additionally, as we have recently pointed out, a school segre­
gation suit presents more than a claim of invidious discrimination 
to individuals by reason of a universal policy of segregation. It 
involves a discrimination against a class as a class, and this is 
assuredly appropriate for class relief. Bush v. Orleans Parish 
School Board, 5 Cir., 1962, 308 F. 2d 491, 499, modified on re­
hearing, 308 F. 2d 503. See also Ross v. Dyer, 5 Cir., 1962, 312 
F. 2d 191.



18

The record reveals numerous occasions on which appel­
lant Anderson and other members of the Albany Move­
ment sought in advance of suit, a redress of the grievances 
which are the subject matter of the suit by petitioning the 
appropriate city officials. Prior to the organization of the 
Albany Movement, appellant Anderson met with the appel­
lee Mayor of Albany and approached him about the estab­
lishment of a biracial committee which would work to affect 
peaceful desegregation of all public facilities. But this 
approach was unsuccessful, as were subsequent approaches 
(R. Vol. V, pp. 102B-103B). After the formation of the 
Albany Movement, appellant Anderson and others again 
prevailed upon the Mayor to go to the City Commission 
and with them seek means of peacefully desegregating the 
city’s public facilities (R. Vol. V, p. 103B). On three subse­
quent occasions, appellant Anderson and others appeared 
before the Mayor and the Commission, requesting, as be­
fore, that steps be taken to desegregate the public facilities 
of Albany, Georgia (R. Vol. V, pp. 104B-106B, pp. 54B- 
60B). These requests were followed by still others (R. Vol. 
V, pp. 55B-56B, 83B) until finally appellants were told to 
“go to court” (R. Vol. IV, pp. 777A-778A, 781A-783A, 
788A).

Appellants, after these numerous requests and petitions, 
were not required to do more in order to “make a case.” 
As this Court said in Gibson v. Board of Public Instruction 
of Dade County, Florida, 246 F. 2d 913 (1957) where the 
issue of justiciable controversy was raised because plain­
tiffs had not made application for admission to particular 
schools :

The issue of justiciable controversy under such a 
complaint has been settled in Bush v. Orleans Parish 
School Board, D. C. E. D. La. 1956, 138 F. Supp. 337,



19

340.2 affirmed by this Court in 5 Cir., 1957, 242 F. 2d
156.3

Under the circumstances alleged, it was not necessary 
for the plaintiffs to make application for admission to 
a particular school. As said by Chief Judge Parker 
of the Fourth Circuit in School Board of City of Char­
lottesville, Va. v. Allen, 4 Cir. 1956, 240 F. 2d 59, 63, 
64:

‘Defendants argue, in this connection, that plain­
tiffs have not shown themselves entitled to in­
junctive relief because they have not individually 
applied for admission to any particular school and 
been denied admission. The answer is that in 
view of the announced policy of the respective 
school boards any such application to a school 
other than a segregated school maintained for

2 The district court said :
‘Defendants also move to dismiss on the ground that no 

justiciable controversy is presented by the pleadings. This 
motion is without merit. The complaint plainly states that 
plaintiffs are being deprived of their constitutional rights by 
being required by the defendants to attend segregated schools, 
and that they have petitioned the defendant Board in vain 
to comply with the ruling of the Supreme Court in Brown v. 
Board of Education of Topeka, supra. The defendants admit 
that they are maintaining segregation in the public schools 
under the supervision pursuant to the state statutes and the 
article of the Constitution of Louisiana in suit. If this issue 
does not present a justiciable controversy, it is difficult to con­
ceive of one.’ 138 F. Supp. at page 340.

3 This Court said:
‘Appellees were not seeking specific assignment to particular 

schools. They, as Negro students, were seeking an end to a 
local school board rule that required segregation of all Negro 
students from all white students. As patrons of the Orleans 
Parish school system they are undoubtedly entitled to have 
the district court pass on their right to seek relief.” 242 F. 2d 
at page 162 (246 F. 2d 914).



20

Colored people would have been futile; and equity 
does not require the doing of a vain thing as a 
condition of relief.’ 240 F. 2d at pages 63, 64.

Cf. Hanes v. Shuttlesworth, 310 F. 2d 303 (1962), affirming 
Shuttlesworth v. Gaylord, 202 F. Supp. 59 (N. D. Ala,. 
1961). It was just as effective a denial of the constitutional 
rights of appellants to have their requests for desegrega­
tion repeatedly ignored and rejected as it would have been 
had each individual plaintiff, after having made these re­
quests, persisted in the futile course of attempting to use 
facilities which long-standing official policy and practice 
barred to them.

Neither were appellants required, as a prerequisite for 
their standing to sue, to expose themselves to arrest for the 
attempt to use the facilities in suit. Baldwin v. Morgan, 251 
F. 2d 780, 787 (5th Cir., 1958); Evers v. Dwyer, 358 TJ. S. 
202 (1958). Indeed, in Evers v. Dwyer, a case involving 
the attempt to use public transportation facilities on a 
nonsegregated basis, the United States Supreme Court 
said that:

. . .  We do not believe that appellant, in order to 
demonstrate the existence of an ‘actual controversy’ 
over the validity of the statute here challenged, was 
bound to continue to ride the Memphis buses at the 
risk of arrest if he refused to seat himself in the space 
in such vehicles assigned to colored passengers. A 
resident of a municipality who cannot use transporta­
tion facilities therein without being subjected by stat­
ute to special disabilities necessarily has, we think, a 
substantial, immediate, and real interest in the va­
lidity of the statute which imposes the disability. (358 
U. S. 204)



21

And in the very case relied upon by the court below 
Bailey v. Patterson, supra, the United States Supreme 
Court while holding that plaintiffs who were not themselves 
being prosecuted criminally in the state courts could not 
enjoin criminal prosecutions, did hold that these same plain­
tiffs, “as passengers using the segregated transportation 
facilities . . . are aggrieved parties and have standing to 
enforce their rights to nonsegregated treatment,” 369 IT. S. 
33 (emphasis supplied), without reference to the occur­
rence of specific incidents of segregated treatment or 
arrest.

These appellants, therefore, having repeatedly petitioned 
city officials, were not bound either to continue to seek to 
use the facilities nor to subject themselves to arrest before 
instituting suit.

Moreover, the record reveals that appellant Anderson, 
notwithstanding the continued rebuffs on the part of appel­
lees, did seek to use the swimming facilities located at 
Tift Park, but he and the members of his group were denied 
admission to the pool (E. Yol. V, pp. 136B-138B). In addi­
tion, appellant Anderson has been segregated in the city 
auditorium on at least four occasions (R. Vol. V, p. 112B). 
Hence, careful examination of the record refutes the dis­
trict court’s conclusion that none of the plaintiffs has ever 
been denied the use of the facilities in suit (R. Vol. VI, p. 
327B). But even were this conclusion correct, appellants, 
as individual Negro residents of Albany (Evers v. Dwyer, 
supra) and as members of the Albany Movement who had 
petitioned city officials many times on behalf of the Negro 
residents in Albany to end segregation, would still be 
proper persons to bring this suit.



22

II.
R e fu sa l to  E n jo in  C o n tin u a tio n  o f  A pp e llees’ P o licy  

an d  P ra c tice  o f  E n fo rc e d  S eg rega tion  in  I ts  Public- 
F ac ilities  a n d  to  E n jo in  In te r fe re n c e  W ith  P e a c e fu l P ro ­
tes t A gainst T h a t P o licy  a n d  P ra c tice  D en ied  A p p e lla n ts ’ 
C o n stitu tio n a l R igh ts.

There is no question on this record of the continued 
existence of Albany’s long standing policy and practice of 
enforcing racial segregation in the use of all of the City’s 
facilities ostensibly open to the public. Indeed, the record 
surges with evidence of the determination on the part of 
city officials to maintain at all costs the complete separa­
tion of the races in all areas of the City’s public life. For ex­
ample, appellee, Asa Kelley, Mayor of Albany, testified that 
the Carnegie Library as a matter of “custom and tradition” 
was used by the white race “and the other library has been 
used by the Negroes” (R. Vol. V, p. 63B); that one of the 
City’s parks, Carver Park, was “designed” for members of 
the Negro community (R. Yol. V, p. 61B) and that he and 
the other white people in Albany would rather see the 
swimming pools closed than integrated (R. Vol. V, pp. 64B- 
65B). In fact, all the parks in Albany customarily used by 
members of the white race only were closed by the police 
when Negroes attempted to desegregate Tift Park (R. Yol. 
YI, pp. 258B-269B) and have remained closed except for 
the zoo and the concession stands (R. Yol. VI, pp. 257B- 
258B). The Carnegie Library in the City of Albany was 
also closed by the Police Department after an attempt by 
Negroes to use it (R. Vol. VI, p. 221B). But, of course, 
closing of these facilities does not moot the issue of whether 
the unconstitutional policy should be enjoined. City of 
Montgomery v. Gilmore, 277 F. 2d 364, 368 (5th Cir. 1960).



23

In addition, at the time of trial the City had many or­
dinances on its books which required segregation on the 
buses, in the use of taxi cabs and in ticket lines at theaters 
(E. Vol. V, pp. 47B-50B, 66B, 70B-71B, PL Exhs. 2 and 3).

There was also evidence of repeated arrests of Negroes 
who sought to make use of the City’s public facilities (R. 
Vol. V, pp. 110B-111B, 155B-162B; Vol. VI, pp. 199B-211B), 
and arrests of Negroes were made in the “white” restaurant 
in the Trailways Bus Terminal even after the I.C.C. ruling 
of November 1, 1961 (E. Vol. I, pp. 153A-155A, 159A-160A, 
162A). Other arrests for alleged violations of the City’s 
segregation ordinances also occurred (E. Vol. V, pp. 96B- 
102B, 178B-185B).

Thus, the policy of racial segregation in the use of public 
facilities is firmly entrenched and systematically pursued; 
the resolve on the part of appellee city officials to maintain 
that policy unswerving. It was this policy, and the indurate 
nature of the resistance by city officials to changing it in 
any particular, which finally caused these appellants to in­
stitute suit seeking to enjoin its continuation after having 
made repeated entreaties to the city officials and having 
been told that there were “no areas of agreement” (R. Vol. 
V, p. 60B) and that they should “go to court” (R. Vol. IV, 
pp. 777A-778A, 781A-783A). In such circumstances it was 
plain error for the court below to deny the injunctive relief 
requested by appellants since it has long been established 
by numerous decisions in the federal courts that appellants, 
and the class on whose behalf they sued, are entitled to 
the securing of their constitutional rights by way of in­
junction against those who would deny them. It has been 
established that no ordinance, regulation, policy or prac­
tice of a city can require racial segregation in municipally 
owned recreational facilities. Dawson v. Mayor of the City 
of Baltimore, 220 F. 2d 386 (4th Cir. 1955), aff’d 350 IT. S.



24

877; Holmes v. City of Atlanta, 350 IT. S. 879 (1955); Tate 
v. Department of Conservation and Development, 352 IT. S. 
838 (1956); City of St. Petersburg v. Alsup, 238 F. 2d 830 
(5th Cir. 1956). Neither may a city maintain segregation in 
the use of its public libraries, Turner v. Randolph, 195 F. 
Supp. 677 (W. D. Tenn. 1961); Cobb v. Montgomery Li­
brary, 207 F. Supp. 880 (M. D. Ala. 1962). A city owned 
auditorium also may not be segregated. Flowers v, City of 
Memphis, Civ. No. 3958 (W. D. Tenn., July 11, 1962). Fi­
nally, city ordinances which require racial segregation in 
public transportation facilities are unconstitutional, Turner 
v. City of Memphis, 369 IT. S. 350 (1962); Bailey v. Patter­
son, 369 U. S. 31 (1962); Browder v. Gayle, 352 U . S. 903 
(1956), affirming 142 F. Supp. 707 (M. D. Ala. 1956). Under 
these authorities, the issue of whether a city may maintain 
segregation in its public facilities is foreclosed and given 
a record such as the one before the court below, injunctive 
relief should have followed as a matter of course.

But this suit for injunctive relief succeeded prior efforts 
by appellants and others to induce the appellees via peace­
ful protest demonstrations and peaceful picketing, to change 
their segregation policy and thus obviate the necessity for 
protracted litigation. This attempt, of course, was unsuc­
cessful, but like the suit for injunctive relief the peaceful 
protests were generated by the frustration appellants ex­
perienced when they sought redress of their grievances by 
petitions and attempted discussions with the city fathers. 
Instead, their attempts to proceed by peaceful means were 
met with arrests and these appellants were among those 
arrested (R. Vol. I, pp. 144A-145A, 146A, 249A; Vol. IY, 
pp. 889A-891A; Vol. V, pp. 149B-151B). Hence, the same 
motives which compelled appellants to seek relief in the 
courts compelled them to engage in peaceful demonstra­
tions, i.e., the determination to succeed in their quest for 
the vindication of their constitutional right not to be sub-



25

jected to imposed racial segregation. Consequently, appel­
lants’ demands for injunctive relief and their engaging in 
protest are part and parcel of the same claim of right and 
as such appellants are entitled to injunctive relief to pro­
tect their right to peacefully protest designed to secure the 
unrestricted use of public facilities. Indeed, the right of 
peaceful protest is cognate to the complete realization of 
appellants’ other constitutional rights and stands on as firm 
a ground as those in terms of the constitutional protection 
afforded. Hague v. C.I.O., 307 U. S. 496 (1939); Thornhill 
v. Alabama, 310 U. S. 88 (1940); Cantwell v. Connecticut,
310 U. S. 296 (1940); Edwards v. South Carolina, ---- -
U. S .----- , 9 L. ed. 2d 697 (1963); Fields v. South Carolina,
----- U. S. -------, 9 L. ed. 2d 965 (1963). It was therefore
equally erroneous for the court below to deny appellants 
injunctive relief against interference with their right of 
peaceful protest without which, in the circumstances of this 
record, appellants’ constitutionally guaranteed rights of un­
restricted access to public facilities could not be vindicated. 
This was so even though appellants did not specifically pray 
for this injunctive relief in the instant suit. But in the 
circumstances of this case, particularly in light of the con­
solidation of this suit with appellants’ suit to enjoin the 
thwarting by arrests and other means, of peaceful protests, 
it was entirely appropriate for the court below to grant 
this relief herein since the prayer of the complaint in this 
action asked for “such other, further, additional or alter­
native relief as may appear to a court of equity to be equi­
table and just in the premises” (R. Vol. I, p. 11).

Appellants submit that for the court below to have 
granted injunctive relief against continued interference 
with the right of peaceful protest does no violence to tra­
ditional principles of equitable relief since a court of equity 
has traditionally granted whatever relief the proof adduced 
on trial has mandated. Cases arising in other factual con-



26

texts amply demonstrate that a court may grant the relief 
to which parties-plaintiff are entitled without being- limited 
by the prayer for relief. For example, Hutches v. Benfroe, 
200 F. 2d 337 (5th Cir. 1952) was a case in which this Court 
granted to the plaintiff, in a suit on a contract, the differ­
ence between the contract price and the resale price of the 
subject matter of the suit even though the plaintiff had 
only asked for the difference between the contract price 
and the market price. This Court declared that, “we are 
in no doubt that plaintiff is entitled to the relief to which 
the proven facts entitle him, even though his own legal 
theory of relief may have been unsound.” 200 F. 2d 340. 
Similarly, the Tenth Circuit in Blazer v. Black, 196 F. 2d 
139 (1952), in a suit for damages for the fraudulent con­
version of stock held that the appellant was entitled to 
the equitable relief of an accounting even though this relief 
had not been asked for in the prayer of the complaint. That 
court said, “[i]t is true that appellant prayed for money 
damages, but the legal dimensions of his claim are meas­
ured by what he pleaded and proved—not his prayer. The 
court was not warranted in dismissing the action unless 
upon the facts and law he had shown no right to relief in 
law or equity.” 196 F. 2d 147 (emphasis supplied). To the 
same effect is Bowles v. J. J. Schmidt and Co., 170 F. 2d 
617, 621 (2nd Cir. 1948):

“And as is well known the demand for judgment un­
der F. E. C. P. (Kule 54(c)), is not the strictly limiting 
factor against an appearing defendant that it may have 
been in some past procedures. The one civil action of 
the rules has at times been likened to an envelope into 
which are dropped all the various claims over which 
the parties are at odds.”

Cf., Fireside Marshmallow Co. v. Frank Quinlan Construc­
tion Co., 199 F. 2d 511 (8th Cir. 1952).



27

CONCLUSION

W herefore, for the foregoing reasons, appellants re­
spectfully pray that the judgment below be reversed and 
the cause remanded with directions to grant injunctive 
relief against the continuation of the policy, practice, cus­
tom and usage of racial segregation in the use of the public 
facilities of Albany, Georgia and against the interference 
with appellants’ right of peaceful protest by arrest, harass­
ment, intimidation, denial of permits, abuse of court process 
or other means.

Respectfully submitted,

C. B. K ing
221 South Jackson Street 
Albany, Georgia

D onald L. H ollowell 
Cannolene Building 
859% Hunter Street, N.W. 
Atlanta, Georgia

Constance Baker Motley 
J ack Greenberg 
N orman A maker

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



28

Certificate of Service

This is to certify that I have, this 23rd day of May, 
1963, served one copy each of the printed Brief for Ap­
pellants in the above-styled case on H. G. Bawls, Esq., 
Post Office Box 1496, Albany, Georgia; Eugene Cook, Esq., 
Judicial Building, 40 Capitol Square, Atlanta, Georgia and 
E. Freeman Leverett, Esq., Elberton, Georgia, Attorneys 
for Appellees, by depositing a true copy of same in the 
United States mail, air mail, postage prepaid, addressed 
to them at their respective addresses.

Attorney for Appellants