Nixon v. Condon Respondents' Brief

    IN TH E

Supreme Court of the United States
October Term, 1952. 

No. 517.

O l iv e  B. B arrow s, R ic h a r d  P ik k a r  and M. M. O ’Gara,

Petitioners,
vs.

L eola J a ck son ,
Respondent.

Petition for Rehearing After Hearing and Decision 
on the Merits on Writ of Certiorari to the District 
Court of Appeal of the State of California, Second 
Appellate District.

J o h n  C. M il e s ,
J. W allace  M cK n ig h t , and 
Ch a r les  L ela n d  B agley ,

408 South Spring Street, 
Los Angeles 13, California,

Counsel for Petitioners.

Parker & Company, Law Printers, Los Angeles. Phone MA. 6-9171.



SUBJECT INDEX
PAGE

I .

Statement of the case........................................................................  1

A. An exception to a jurisdictional limitation which had no
exceptions ................................................................ .............  3

B. The court’s decision is based upon considerations which 
petitioners did not have an opportunity to brief or argue, 
to-wit: (1) The constitutional rights of classes; (2) 
Whether the class designated “non-Caucasian” has any 
constitutional rights which might be affected by a judg­
ment for petitioners; (3) Whether a judgment for peti­
tioners would affect those rights, if any exist................... 23

(1) The constitutional rights of classes............................... 26

(2) The class designated “non-Caucasian” has no con­
stitutional rights which might be affected by a judg­
ment for petitioners........................................................  32

(3) Judgment for petitioners cannot affect any supposed
rights of unidentified non-Caucasians........................... 33

INDEX TO APPENDICES

Appendix A. Cover and pages 16, 17, 18 and 19 of the June, 
1953, issue of the national Negro magazine “Color.”

Appendix B. Pages 8, 9 and 10 of June, 1953, national Negro 
magazine, “Sepia.”

Appendix C. Cover and pages 71, 72 and 73 of the July, 
1953, issue of the national Negro magazine, “Ebony.”



TABLE OF AUTHORITIES CITED

Cases page

Buchanan v. Worley, 245 U. S. 60, 62 L. Ed. 149...................14, 15

Civil Rights Cases, 109 U. S. 3........................................................  35

Coleman v. Miller, 307 U. S. 433....................................................  6

Comm. Cas. Ins. Co. v. Ind. Acc. Comm., 110 Cal. App. 2d 83,
242 P. 2d 13.................................................................................... 16

Estabrook Co. v. Ind. Acc. Comm., 177 Cal. 767, 177 Pac.
848 ............................................... ......................................14, 16, 17

Greene v. State, 83 Neb. 84, 119 N. W. 6.................................14, 15

Johnson, Estate of, 139 Cal. 532, 73 Pac. 424................................. 20

Joint Anti-Facist Refugee Com. v. McGrath, 341 U. S. 123,
95 Fed. 817.................................................................................... 21

Nowak, Ex parte, 184 Cal. 701, 195 Pac. 405............................... 18

Pacific Indemnity Co. v. Myers, 211 Cal. 645, 296 Pac. 1087.... .
............................................................................................. 18, 19, 20

People v. Globe Grain & Milling Co., 211 Cal. 127, 294 Pac. 5.. 18 

Pierce v. Society of Sisters, 268 U. S. 510.........7, 8, 9, 10, 11, 12

Quong Ham Wah Co. v. Ind. Acc. Comm., 184 Cal. 26.............
............................................................. ...—14, 15, 16, 17, 18, 19, 20

Security-First National Bank v. Bank of America, 7 Cal. 2d 771,
59 P. 2d 1023.................................................................................. 18

Shelley v. Kraemer, 334 U. S. 1.................................................. 3, 7

Terrance v. Thompson, 263 U. S. 197, 68 L. Ed. 255....... 9, 10, 12

Truax v. Corrigan, 257 U. S. 312, 66 L. Ed. 254............... 9, 11, 12

Truax v. Raich, 239 U. S. 33, 60 L. Ed. 131................... 11, 12, 13

Van Camp Sea Food Co. v. Newbert, 76 Cal. App. 445, 244 
Pac. 949 ............................................................................. 18, 19, 20



M iscellaneous PAGE

Color, June, 1953, pp. 16-19............................................................  30

Ebony, July, 1953, pp. 71-73............................................................  30

Noble and Wolf, Ontario Weekly Notes (1949), p. 488...............  30

Report to the Governor’s Council Meeting of May 25, 1953, p.
2, by California Youth Authority on “Departmental Activities 
During April, 1953”......................................................................  29

Sepia, June, 1953, pp. 8-10................................................ ...............  30

23 Uniform Crime Reports for the United States and Its Pos­
sessions, issued by Federal Bureau of Investigation, U. S. 
Dept, of Justice, No. 2, Annual Bulletin, 1952 (U. S. Govt. 
Printing Office, Wash., D. C.)..................................................  27

Wolfson and Kurland, “Reynolds Robertson and Francis R. 
Kirkham, Jurisdiction of the Supreme Court of the United 
States,” Chap. 38, p. 541 (Matthew Bender & Co., 1951).......  23

S tatu tes

Civil Code, Sec. 1466............................................................ ...........  34

United States Constitution, Fourteenth Amendment................... 11

T extbooks

15 Corpus Juris, p. 1301..................................................................  34



IN THE

Supreme Court of the United States
October Term, 1952.

No. 517.

O l iv e  B. B arrows, R ic h a r d  P ik k a r  and M . M. O ’Gara,

L eola J a ck son ,
vs.

Petitioners,

Respondent.

Petition for Rehearing After Hearing and Decision 
on the Merits on Writ of Certiorari to the District 
Court of Appeal of the State of California, Second 
Appellate District.

Petitioners pray that a rehearing be granted to review 
the decision of this Court rendered June 15, 1953, in the 
above entitled cause.

I .

Statement of the Case.
On or about the 21st day of October, 1944, petitioners 

Barrows [R. 1] and O’Gara [R. 2] and the ancestor in 
title of petitioner Pikkar [R. 2], and respondent Leola 
Jackson [R. 2], each owned lots in Tract 1462 in the City 
of Los Angeles. On or about that date, in consideration 
of the mutual benefit to themselves and their respective 
properties, said owners, including respondent, executed and



2

caused to be recorded an “agreement imposing restric­
tions” [R. 2], By the terms of said agreement each of the 
signers promised and bound himself, his heirs, executors, 
administrators, successors and assigns, by a continuing 
covenant, that no part of his said real property described 
therein should ever at any time be used or occupied by any 
person or persons not wholly of the white or Caucasian 
race [R. 3]. By the terms of said agreement each of the 
signers further promised that this restriction should be 
incorporated in all papers and transfers of lots or parcels 
of land of said signers [R. 3].

On or about February 2, 1950, respondent, Leola Jack- 
son, and one Dorothy May Grace, executed a grant deed 
to Pearnell Smalley and Florine Smalley [R. 4], Respon­
dent, Leola Jackson, failed to incorporate in said deed the 
restrictions contained in said agreement against use and 
occupancy by persons not wholly of the white or Caucasian 
race, which failure constituted the first breach of respon­
dent’s contract complained of by petitioners [R. 5].

On or about September 4, 1950, persons not of the white 
or Caucasion race moved into and began to use and occupy 
the property as to which respondent had contracted that it 
would never at any time be used or occupied by persons 
not of the white or Caucasian race [R. 4], Said use and 
occupancy on or about and after the 4th day of September, 
1950, constituted the second breach of respondent’s con­
tract complained of by petitioners. As a result of the 
breaches of contract, and each of them, petitioners have 
suffered actual and severe depreciation in the value of their 
property, as alleged in their second amended complaint [R. 
5 and 6], Respondent’s demurrer was sustained without



— 3—

leave to amend [R. 16]. The District Court of Appeal 
of the State of California, Second Appellate District, 
held that the complaint states a cause of action for dam­
ages for breach of contract under the common law prin­
ciples of California [R. 32, 34] and that the covenant 
is constitutionally a valid agreement [R. 34], but that 
because of Shelley v. Kraemer, 334 U. S. 1, the courts 
of California may not permit petitioners to recover their 
actual provable monetary damages [R. 56].

The opinion of the majority of this Court held that al­
though the contract sued upon is valid and although re­
spondent would not be deprived of any of her constitu­
tional rights by a judgment for the damages suffered by 
petitioners, yet respondent could assert constitutional 
rights claimed by “non-Caucasians, unidentified but iden­
tifiable” as possible future bidders for unidentified land 
from prospective sellers.

A. An Exception to a Jurisdictional Limitation W hich Had
No Exceptions.

An exception should not be recognized to a jurisdic­
tional limitation which had no exception without the bene­
fit of full and complete consideration in the briefs and 
arguments of the parties. The opinion of the majority 
in the case at bar is based upon the asserted rights of 
unknown persons with no standing in this litigation. In 
justification, the majority opinion has held on page 5, 
that the rule of standing and interest has application only 
in cases challenging the constitutionality of a statute:

“The common thread underlying both requirements 
is that a person cannot challenge the constitutionality 
of a statute unless he shows that he himself is injured 
by its operation.” (Emphasis added.)



4

This distinction between a statute and other state ac­
tion is emphasized by the use of the phrase “state action” 
in the sentence preceding the one quoted, balanced against 
the use of the word “statute” in the sentence quoted, and 
is further emphasized by footnote number 3 which uses 
the word “statute” in the statement of nearly every case 
cited, and the other cases cited obviously involved a 
statute.

The distinction relied upon is again emphasized on page 
6 of the decision in these words:

“There are still other cases in which the Court has 
held that even though a party will suffer a direct 
substantial injury from application of a statute, he 
cannot challenge its constitutionality unless he can 
show that he is within the class whose constitutional 
rights are allegedly infringed.” (Emphasis added.)

The reliance upon a distinction between legislative ac­
tion and other state action is further developed on page 
6 of the majority opinion by the statement of a reason 
for the rule of “standing” applying only to tests of 
statutes:

“One reason for this ruling is that the state courts, 
when actually faced with the question, might nar­
rowly construe the statute to obliterate the objec­
tionable feature, or it might declare the unconstitu­
tional provisions separable.”

Another reason why the “standing rule” should be ap­
plied in testing statutes only is given on page 7 of the 
opinion to add to the validity of the distinction relied upon 
by the majority as a justification for exceeding the “con-



— 5—

stitutional limitation on the jurisdiction of this Court to 
‘cases’ and ‘controversies.’ ” (See Majority Opinion p. 5.)

“It would indeed be undesirable for this Court to 
consider every conceivable situation which might pos­
sibly arise in the application of complex and com­
prehensive legislation. Nor are we so ready to frus­
trate the express will of Congress or that of the state 
legislature.”

The distinction relied upon by the majority is expressly 
set forth on page 7 of the opinion in these words:

“But in the instant case, we are faced with a 
unique situation in which it is the action of the state 
court which might result in a denial of constitutional 
rights . . .” (The word “court'’ is emphasized
by the opinion; emphasis has been added to the 
word “might.” )

The Court has taken a very radical and far-reaching 
step in thus limiting the “standing” rule to litigation 
testing the constitutionality of statutes only. Only after 
thus limiting the “standing rule” to litigation testing stat­
utes does the majority opinion state, “This is a salutary 
rule, the validity of which we reaffirm.”

Aside from the constitutional authority of this Court 
to open its doors to the friends of persons affected by 
state action other than legislative action, the departure 
from the formerly invariable limitation must result in 
great mischief by permitting the Court to go out of its 
way to protect supposed rights, because in so doing the 
Court must assume situations which may never arise.



—<>—

Thereby the Court will, in more ways than can now be 
foreseen, prevent litigants from enjoying rights which 
they might otherwise have enjoyed. This case is an 
example.

If this distinction is permitted to continue to represent 
the views of the Court, it will be applied by state courts 
to situations beyond the present contemplation of this 
Court; and many years, perhaps, decades, will be required 
for this Court to circumscribe the aberrations. The in­
justices suffered in the meantime could never be undone. 
It has been said that hard cases make bad laws, and un­
fortunately this is sometimes true. If the Court is not 
in sympathy with the petitioners or their exercise of their 
freedom, this should not cause it to depart from an in­
variable limitation on constitutional jurisdiction1 and 
thereby open Pandora’s box and loose its contents on 
future litigation.

Contract cases are not the only ones which will be revo­
lutionized by the distinction spelled out by the majority 
opinion. All cases not involving a statute will become 
the arena for seriously championing the nebulous rights of 
strangers, unidentified but equally identifiable. The courts 
will feel free to rely on this shimmering image, the rights 
of strangers, undefinable, unlimited, having no existence 
in any justiciable set of facts, and relying thereon to de­
stroy constitutional property rights “which might result

xMr. Justice Frankfurter, concurring in Coleman v. Miller, 307 
U. S. 433, 461:

“No matter how seriously infringement of the Constitution 
may be called into question, this is not the tribunal for its 
challenge except by those who have some specialized interest 
of their own to vindicate, apart from a political concern which 
belongs to all. Stearns v. Wood, 236 U. S. 75; Fairchild v. 
Hughes, 258 U. S. 126.”



— 7—

in a denial of constitutional rights . . (Emphasis
added.)

This distinction between the testing of state action by 
a legislature and the testing of state action by a court 
is particularly difficult to appreciate in view of the unani­
mous opinion of this Court in Shelly v. Kraemer, 334 
U. S. 1, wherein the bulk of the opinion was devoted to 
showing that court action is state action the same as 
legislative action and must be tested by the same rules. 
Now we are told that the Constitution itself limits the 
jurisdiction of this Court in testing statutes2 but not in 
testing the action of state courts.

Petitioners can find no authority for this distinction. 
The authorities cited by the majority opinion do not sup­
port this distinction. The majority cites the case of 
Pierce v. Society of Sisters, 268 U. S. 510, but this case 
does not recognize this distinction, nor any distinction, 
nor any exception to the constitutional limitation of the 
jurisdiction of this Court to the adjudication of the con­
stitutional rights of the litigants only. In the case of 
Pierce v. Society of Sisters {supra) the Oregon statute 
deprived the appellees of a constitutionally recognized 
property right. The consideration of the rights of par­
ents and guardians was only material to the determina­
tion of the reasonableness of the legislation. This is a 
question which must be dealt with in statute cases, but 
it has no constitutional significance in contract cases. 
The rights of litigants limited by legislation and the rea-

2The requirement of standing is often used to describe the 
constitutional limitation on the jurisdiction of this Court to ‘cases’ 
and ‘controversies.’ See Coleman v. Miller, 307 U. S. 433, 464 
(concurring opinion).” (See Majority Opinon p. 5.)



— 8—

sonableness of the legislation are two distinct considera­
tions and should not be confused, but petitioners respect­
fully submit that this Court has confused them in order to 
cite Pierce v. Society of Sisters, supra, in this contract 
case. Suppose the Pierce case involved a contract rather 
than a statute. Suppose the parents and guardians had 
made a valid contract among themselves to send their 
children to public school. If one of the parties breached 
this agreement and another party plaintiff could prove 
some damage, what constitutional defense could the party 
defendant raise? Could he cite Pierce v. Society of 
Sisters on the reasonableness of similar legislation or 
to show the constitutional right of the school upon which 
the Pierce case was based? That the Pierce case was 
decided upon the right of the appellees in conformity 
with the constitutional requirement is plain from the fol­
lowing language:

“Appellees asked protection against arbitrary, un­
reasonable, and unlawful interference with their pa­
trons, and the consequent destruction of their busi­
ness and property. Their interest is clear and im­
mediate, within the rule approved in Truax v. Raich, 
Truax v. Corrigan, and Terrance v. Thompson, 
supra, and many other cases where injunctions have 
issued to protect business enterprises against inter­
ference with the freedom of patrons or customers.” 
(Emphasis added.)

Pierce v. Society of Sisters, 268 U. S. 510, 536, 
69 L. Ed. 1070.

The cases cited in this quotation conclusively establish 
the fact that the Court was adjudicating the rights of 
the appellees not that of strangers. Truax v. Raich will



-9-

be dealt with more thoroughly because it has been cited 
along with the- Pierce case as authority for departing 
from the “standing rule.” The other two cases will be 
touched only lightly.

In Truax v. Corrigan (1921), 257 U. S. 312, 66 L. 
Ed. 254, an employer was denied an injunction against 
peaceful picketing although all the facts required to state 
a course of action in equity were stated in the complaint. 
The denial was based solely upon a statute preventing 
injunction against peaceful picketing. The view of courts 
upon the constitutionality of such statutes has changed 
some since 1921, but that does not change the fact that 
the employer was asserting his own alleged constitutional 
rights, and the decision was based solely on the rights of 
the employer as they were then found to exist, not on 
the rights of strangers. The appellees in Pierce v. So­
ciety of Sisters showed their interest as clearly and im­
mediately as did the employer in Truax v. Corrigan, 
supra.

In Terrance v. Thompson (1923), 263 U. S. 197, 68 
L. Ed. 255, the appellants challenged the constitutionality 
of the Alien Land Law of the State of Washington. 
One of the appellants owned land and was prevented 
by the statute from leasing it to the other appellant. 
The other appellant was an ineligible alien prevented by 
the statute from taking the lease. (It should be kept in 
mind that this limitation was by statute without the con­
sent of the appellants; it was not by contract to which 
all litigants were consenting parties.) The view of some 
courts, at least, have changed since 1923 as to the consti­
tutionality of alien land laws, but that does not change the 
fact that the landowner and the proposed tenant were as-



10—

serting their own constitutional rights not the right of 
strangers. The opinion in the Pierce case was expressly 
based upon the interest of the appellees which was ex­
pressly recognized to be as “clear and immediate” as 
that of the landowner and proposed tenant in Terrance 
v. Thompson, supra.

Suppose the Pierce case were based upon a contract 
among the schools themselves. Suppose they contracted 
among themselves by a valid contract not to enroll pupils 
from a certain district. Suppose one of the schools which 
executed the contract breached the contract, and another 
school which also executed the contract filed suit against 
the first school and could show actual damages. What 
constiutional defense could the defendant school raise? 
Could the defendant school cite Pierce v. Society of Sis­
ters, supra?

These are not idle suppositions. The practice of cit­
ing statute cases to justify a decision in a contract case 
may in some situations have logical justification, but 
there can be no logical justification for citing a statute 
case solely for its language and reasoning in deciding the 
reasonableness of the statute. That language and rea­
soning has no constitutional relevancy to the enforce­
ment of a contract between the litigants which may even 
seem unreasonable, because the litigants have accepted 
the terms and have been paid for their acceptance and 
have consented to be bound by the terms. If the terms 
are too unreasonable, the common law of the state or 
the statutes of the state will reach them, but the Consti­
tution of the United States is not concerned with any 
such test of a contract as distinguished from a statute 
or other state action not consented to.



11

The majority opinion cites the case of Truax v. Raich, 
239 U. S. 33, 60 L. Ed. 131, as authority for permitting 
respondent to rely solely upon the rights of an amorphous 
class. Petitioners respectfully submit that the opinion in 
Truax v. Raich recognized no exception to the “stand­
ing rule” but instead expressly brought the complainant 
within the rule and decided the constitutionality of the 
challenged legislation solely upon the rights of the liti­
gant.

The Pierce case, supra, and Truax v. Raich, supra, 
belong in a well recognized class of cases which test the 
constitutionality of statutes by the constitutional rights 
of litigants whose constitutional rights are indirectly af­
fected by the legislation, but nevertheless it is the con­
stitutional rights of the litigants or the class to which 
they belong which is controlling on “standing,” never the 
constitutional rights of an amorphous class of strangers.

In Tniax v. Raich, supra, a statute of Arizona was 
about to take effect which purported to prevent anyone 
employing 5 or more persons from employing over 20% 
of aliens. Raich was an alien. His employer employed 
over 5 employees. His employer had notified him that 
he would be discharged when the statute took effect and 
that the statute would be the sole cause of the discharge. 
Raich brought suit to prevent this irreparable injury to 
him on the grounds that the statute was unconstitutional 
because it deprived him of his constitutional right to 
“the ordinary means of earning a livelihood” in violation 
of the Fourteenth Amendment to the Constitution of the 
United States.

“It requires no argument to show that the right 
to work for a living in the common occupations of



12-

the community is of the very essence of the personal 
freedom and opportunity that it was the purpose 
of the amendment to secure.”

Tm ax v. Raich, 239 U. S. 33, 41, 60 L. Ed. 131, 
135.

“The discrimination is against aliens as such in 
competition with citizens in the described range of 
enterprises, and in our opinion it clearly falls under 
the condemnation of the fundamental law.” (Ibid., 
p. 43.)

Can this case stand as an example of a case decided 
upon the rights of an amorphous class, strangers to the 
action. The language of the Court is directed entirely 
to the constitutional rights of the appellee and brought 
the case within the uniformly recognized “standing rule.” 
Clearly this case contains no language recognizing any 
exception to the “standing rule,” but instead is cited in 
the same breath with, and for the same proposition as, 
Terrance v. Thompson, 263 U. S. 197, 68 L. Ed. 255, and 
Truax v. Corrigan, 257 U. S. 312, 66 L. Ed. 254, in 
Pierce v. Society of Sisters, 268 U. S. 510, 536. Can 
these four cases be cited as authority for any exception 
to the “standing rule,” much less the distinction between 
legislative action and court action relied upon by the ma­
jority opinion?

Suppose Truax v. Raich, supra, were a contract case. 
Suppose first that the employer had signed a valid con­
tract with other employers by which they all agreed that 
not over 20% of their employees would be aliens. We 
are not now concerned with non-federal questions. Sup­
pose the alien brought suit to require the employer to 
breach that contract based solely on the strength of



- 13-

constitutional rights. Petitioners will not hazard a sug­
gestion as to what the result would be. Whether or 
not this Court would cite Truax v. Raich as controlling 
is immaterial to the case at bar because such a case 
would not be analogous to the case at bar. In such a 
case the non-contracting, non-consenting alien would be 
identified, he would be before the Court, and his rights, 
if any, could be analyzed in an existing justiciable set 
of facts.

On the other hand, suppose that, after the employer 
signed the valid contract for consideration, he breached 
the valid contract. Suppose one of the other signers of 
the valid contract could show damages as a result of 
the breach and sued the first employer for those damages. 
Suppose the state court held that the contract was valid 
and that the complaint stated a cause of action for dam­
ages for breach of contract on common law principles. 
What constitutional defense would this signer of a valid 
contract have? He could not properly cite Truax v. 
Raich, supra. That case would not even be material to 
his defense to his contract much less controlling.

Every United States Supreme Court case cited by 
the majority opinion in the case at bar either recognizes 
the “standing rule” and expressly brings the claimant 
within it by showing his constitutional rights or else 
omits any consideration of standing at all. No case is 
cited wherein the Supreme Court of the United States 
has ever recognized any exception to the “standing rule,” 
i, e., the constitutional limitation upon the jurisdiction of 
this Court to the adjudication of the rights of litigants 
before this Court only.



14—

One case is cited wherein a minority of the justices 
of the Supreme Court of California stated as dicta a 
claimed “well-defined” exception to the “standing rule.” 
That case is Quong Ham Wah Co. v. Industrial Acc. 
Comm. (1920), 184 Cal. 26.

In that case an employer claimed that the workmen’s 
compensation statute of California was unconstitutional 
as to injuries occurring outside the state to persons em­
ployed within the state for the reason that it applied to 
residents of California only. Four concurring opinions 
were written: One by Mr. Justice Lennon was concurred 
in by Mr. Justice Lawlor and Mr. Justice Sloane; one 
by Mr. Justice Olney; one by Mr. Justice Shaw was con­
curred in by Chief Justice Angellotti; and one by Mr. 
Justice Wilbur.

Mr. Justice Lennon stated one of “one or more of the 
recognized exceptions to the general rule enunciated in the 
Estabrook case” as follows:

“Thus, where no member of a class alleged to be 
unlawfully discriminated against by a statute is in 
a position to raise the constitutional question, then 
any person affected by the application of the statute 
can urge its unconstitutionality.”

Mr. Justice Lennon feels that his is a recognized 
exception because of only two cases, i. e., Greene v. State 
(1908), 83 Neb. 84, 119 N. W. 6, and Buchanan v. 
Worley, 245 U. S. 60, 62 L. Ed. 149. In Greene v. 
State, supra, a defendant was convicted of violation of a 
statute which made that defendant guilty of a crime 
for extortion against a citizen of Nebraska but which 
would not punish a person who committed the same act



—15—

against a non-citizen of Nebraska. The Nebraska court 
thought that the only discrimination was against non­
citizens and held that the defendant could assert the con­
stitutional rights of the non-citizens because they could 
not themselves challenge the statute. The Nebraska court 
and Mr. Justice Lennon failed to realize that the statute 
applied unequally to the defendant without a reasonable 
classification and denied him equal protection of the laws. 
It is significant that in the forty-five years since the 
Greene case was decided it has only been cited twice by 
the courts of Nebraska and has never been followed by 
any other decision in Nebraska on the “exception” stated. 
Petitioners cannot find where it has ever been followed 
by any judge in the United States except the three out of 
seven justices in Quong Ham Wah Co. v. Industrial 
Acc. Comm., supra.

In addition to Greene v. State, supra, Mr. Justice 
Lennon understood the decision of this Court in Buchanan 
v. Worley, 245 U. S. 60, 62 L. Ed. 149, to be “precisely 
in point in the instant case.” In other words, Mr. Justice 
Lennon thought that this Court had departed from the 
constitutional limitation upon jurisdiction commonly 
called the “standing rule” in deciding Buchanan v. Wor­
ley, supra; whereas, in fact, this Court expressly recog­
nized the “standing rule” as controlling and based its 
decision upon the constitutional rights of the plaintiff in 
error.

After defining an exception dependent upon the ex­
istence of a class which could not test the constitution­
ality of the statute, Mr. Justice Lennon goes on in his 
opinion to hold that the Constitution prevents the limita­
tion of the workmen’s compensation statute benefits to



1 6 -

residents and automatically extends them to non-residents. 
Clearly, therefore, non-residents could file claims for com­
pensation and, by successfully asserting their constitu­
tional rights, obtain the benefits. {Comm. Cas. Ins. Co. 
v. Ind. Acc. Comm., 110 Cal. App. 2d 83, 242 P. 2d 13.) 
This being the case, the condition upon which Mr. Justice 
Lennon’s exception was based did not exist in that case 
according to his own opinion. Therefore, the application 
of the exception was erroneous and its discussion obiter 
dictum.

It is most significant that the Quong Ham Wah Co. 
case had been heard before by the Supreme Court of the 
State of California.

The decision upon the first hearing reported in 59 
Cal. Dec. 18, was also written by Mr. Justice Lennon 
and concurred in by a majority of the then Court in­
cluding Mr. Justice Olney and Mr. Justice Shaw. Mr. 
Justice Wilbur wrote a brilliant dissenting opinion. The 
first decision expressly overruled Estabrook Co. v. In­
dustrial Acc. Comm,, 177 Cal. 767, 177 Pac. 848, and, 
relying solely upon the exception claimed to the “standing 
rule,” held the statute unconstitutional and reversed the 
award of the Commission. In his opinion after rehear­
ing, Mr. Justice Lennon reaffirmed his exception to the 
“standing rule” by obiter dictum; and, after finding the 
statute constitutional by extending it to non-residents, he 
affirmed the award of the Commission.

Mr. Justice Shaw, who had concurred with Mr. Len­
non’s exception to the “standing rule” in the first opin­
ion, did not concur when it was repeated in the second 
decision; but instead he wrote a separate opinion in 
which he only agreed with the conclusion that the peti-



—17—

tioners had standing and added his weight to the second 
part of Mr. Lennon’s opinion, to wit, “that the provision 
of the Constitution of the United States, ipso facto, car­
ries this privilege to and confers it upon every citizen 
of any other state whose contract of employment is 
made in this state, and thus prevents the statute from 
being discriminatory in effect.” This opinion was con­
curred in by Chief Justice Angellotti.

Mr. Justice Olney, who had also concurred with Mr. 
Justice Lennon’s exception to the “standing rule” in the 
first decision overruling Estabrook Co. v. Industrial Acc. 
Comm., 177 Cal. 767, 177 Pac. 848, did not concur in 
the second opinion; but, instead, he wrote a separate con­
curring opinion expressly rejecting the discussion of the 
Estabrook Co. case, supra.

Mr. Justice Wilbur’s concurring opinion is in keeping 
with his dissent to the first opinion but concurs with the 
right of non-residents to the benefits of the statute.

It is plain that as to the first part of Mr. Justice 
Lennon’s opinion in Quong Ham Wah Co. v. Industrial 
Acc. Comm. (1920), 184 Cal. 26, the only part material 
here, he spoke only for himself and two other justices, 
while four justices did not concur. Instead they wrote 
concurring opinions omitting the exception to the “stand­
ing rule” or rejecting it but concurring with the second 
part of Mr. Justice Lennon’s opinion extending the bene­
fits of the statute to non-residents.

It is plain therefore that the first part of Mr. Justice 
Lennon’s opinion expresses the view of a minority of 
the justices; while the second part expressed the unani­
mous view of all the justices. Petitioners can find where 
the second, i. e., unanimous, part of Mr. Justice Lennon’s



—1 8 -

opinion has been cited in nineteen cases including four 
decisions of this Court; but petitioners can only find five 
cases which have cited the first part of that opinion; and 
three of those cases cited it only to distinguish it. Those 
three cases are E x parte Nowak, 184 Cal. 701, 195 Pac. 
405; People v. Globe Grain & Milling Co., 211 Cal. 127, 
294 Pac. 5, and Security-First National Bank v. Bank 
of America, 7 Cal. 2d 771, 59 P. 2d 1023. The first part 
of Mr. Justice Lennon’s opinion in Ouong Ham Wah Co. 
v. Industrial Acc. Comm., supra, i. e., the view of the 
minority of that court, has been cited and followed only 
twice since 1920, in spite of the frequency of cases where 
one of the litigants is barred from success by the “standing 
rule.” Those two cases are Pac. Indemnity Co. v. Myers 
(1931), 211 Cal. 645, 296 Pac. 1087, and Van Camp 
Sea Food Co. v. Nezvbert (1926), 76 Cal. App. 445, 244 
Pac. 949. Petitioners can not find where this view of 
the minority of justices has ever been cited or followed 
in any other jurisdiction except the opinion of the ma­
jority in the case at bar.

In Pac. Indemnity Co. v. Myers, supra, the only case 
in the Supreme Court of California to follow the alleged 
exception to the “standing rule,” the exception was not 
contested or in other words, the petitioner lost that point 
and therefore, the case by default.

“Counsel for the petitioner, however, do not dis­
pute the existence of the rule, referred to by both 
parties as an exception to the general rule, that when



—19-

no member of the injured class can complain the 
question may be raised by anyone whose interests 
are affected.”

Pacific Indemnity Co. v. Myers, 211 Cal. 635, 644, 
296 Pac. 1084.

In the case of Van Camp Sea Food Co. v. Newbert, et al., 
76 Cal. App. 445, 244 Pac. 946, the Sea Food Company 
filed an application for an order allowing it to reduce 
4,500 tons of sardines to fertilizer. The application failed 
to state the present capacity of the plant as required by 
the statute, but instead stated the future expected capacity. 
The Commission issued the order subject to a condition. 
Sea Food Company seeks to mandamus the issuance of an 
order without condition. The Commission points out (1) 
that the Sea Food Company’s application is fatally de­
fective, and (2) that the statute is unreasonable in per­
mitting canners of sardines to reduce 25% to fertilizer 
but not permitting other packers the same right. The 
Court held that the conditional permit issued by the 
Commission was not based on statutory facts and was 
a nullity and that for the same reason petitioner’s appli­
cation did not justify any new permit, conditional or 
otherwise under the statute, Flaving thus disposed of 
petitioner’s interest, the Court nevertheless proceeded on 
the strength of the exception to the “standing rule” ex­
pressed by Mr. Justice Lennon and a minority of the 
Court in Quong Ham Wah Co. v. Ind. Acc. Comm., 
supra, and declared the statute unconstitutional.



— 20—

In this connection petitioners wish to quote from page 
6 of the majority opinion in the case at bar:

“There are still other cases in which the Court has 
held that even though a party will suffer a direct 
substantial injury from application of a statute, he 
cannot challenge its constitutionality unless he can 
show that he is within the class whose constitutional 
rights are allegedly infringed. (Citing cases.) One 
reason for this ruling is that the state court, when 
actually faced with the question, might narrowly 
construe the statute to obliterate the objectionable 
feature, or it might declare the unconstitutional pro­
visions severable.” (Emphasis added.)

The Van Camp Sea Food Company case is a most 
excellent example of the wisdom of the statement quoted 
above, particularly the portion emphasized, in view of the 
rule of Estate of Johnson, 139 Cal. 532, 73 Pac. 424, 
approved by all of the justices in Quong Ham Wah Co. 
v. Industrial Acc. Comm., supra. Similarly, because of 
this rule of the Estate of Johnson, one of the bail dis­
criminated against in Pacific Indemnity v. Myers, supra, 
might assert his own constitutional right to equal privi­
leges; this possibility removes the condition upon which 
the alleged exception is based. Yet the Court applied the 
exception and destroyed a remedial statute.

The folly of the exception to the “standing rule” ex­
pressed by a minority of the justices in Quong Ham Wah 
Co. v. Industrial Acc. Comm., supra, could not be more 
plainly illustrated than in that case and the two follow­
ing it.



-21—

Yet that case is the only case cited by the majority 
opinion in the case at bar which recognizes any exception 
to the otherwise uniformly recognized and controlling 
constitutional limitation upon the jurisdiction of this Court. 
Can it be said that that case is an authority in this Court 
for any exception much less the distinction spelled out 
by the majority between cases testing legislative action 
and cases testing court action, since that case was a 
statute case and flies in the teeth of the reasons given 
by the majority opinion herein for the “standing rule” 
in statute cases.

Petitioners pray this Court to consider the pernicious 
effect upon litigation in all states if this indefensible 
opinion of a minority of the justices of the Supreme 
Court of California is elevated and adopted as the ma­
jority opinion of the Supreme Court of the United States 
and permitted to retain that position.

Petitioners respectfully recommend for the considera­
tion of this Court the profoundly wise language of Mr. 
Justice Frankfurter in Joint Anti-Fascist Refugee Com. 
v. McGrath, 341 U. S. 123, 149-150, 95 Fed. 817, 842:

“The more issues of law are inescapably entangled 
in political controversies, especially those that touch 
the passions of the day, the more the Court is under 
a duty to dispose of a controvery within the narrow­
est confines that intellectual integrity permits . . .
But in a case raising delicate constitutional questions 
it is particularly incumbent first to satisfy the 
threshold inquiry whether we have any business to 
decide the case at all. Is there, in short, a litigant



- 22-

before us who has a claim presented in a form and 
under conditions 'appropriate for judicial determi­
nation?’ ”

Mr. Justice Frankfurter is referring to the presence 
of constitutional rights of the litigants themselves. Mr. 
Justice Frankfurter went on to find constitutional rights 
of the petitioners themselves. The majority opinion in 
that case also recognized that the “standing rule” required 
the petitioners to rely upon their own constitutional rights 
and held that such rights existed.

Petitioners respectfully submit that it is the Constitu­
tion of the United States which places the “standing rule” 
limitation upon the jurisdiction of this Court3 and it 
is this Court which determines whether it will respect 
that constitutional limitation. It is the sacred duty of 
the Justices of this Court to observe and obey that 
constitutional mandate. This duty is not performed by 
stating that an exception exists. The language of the 
constitution does not disclose it. Nor does the combined 
wisdom of all past decisions of this Court support it.

Petitioners respectfully submit that a rehearing should 
be granted by this Court to reexamine the application 
of this “standing rule” in this case in the light of these 
considerations not heretofore advanced by petitioners who 
reasonably relied upon the belief that this rule was not 
open to question.

8“The requirement of standing is often used to describe the 
constitutional limitation on the jurisdiction of this Court to ‘cases’ 
and ‘controversies.’ ” (See page S of the opinon of the majority 
in the case at bar.)



—23

B. The Court’s Decision Is Based Upon Considerations 
W hich Petitioners Did Not Have an O pportunity to Brief 
or Argue, to-wit:

1. The Constitutional Rights of Classes,

2. W hether the Class Designated “Non-Caucasian” 
Has Any Constitutional Rights W hich M ight Be 
Affected by a Judgment for Petitioners,

3. W hether a Judgm ent for Petitioners W ould Affect 
Those Rights if Any Exist.

Petitioners did not have an opportunity to brief or argue 
the considerations upon which the decision was based for 
the reason that overwhelming authority in the form of 
countless decisions of this Court established that this Court 
had jurisdiction to consider the rights of litigants only. 
This invariably controlling rule prohibited argument based 
on the rights of strangers to the action as irrelevant and 
an unnecessary burden on this Court.

Perhaps the most scholarly and most highly esteemed 
treatise concerning the Appellate Jurisdiction of the Su­
preme Court of the United States published in the United 
States is “Reynolds Robertson and Francis R. Kirkham, 
Jurisdiction of the Supreme Court of the United States,” 
by Richard F. Wolfson and Philip B. Kurland, 1951, 
Matthew Bender & Company. Chapter 38 of that work is 
dedicated entirely to the rule which limited petitioners’ 
briefs and arguments and begins as follows on page 541 
thereof:



—24—

“§297. B a sic  R u le— N ecessity  of E x is t in g  or 
Cer t a in ly  I m p e n d in g  I n ju r y  to T h ose  P ersonal 
or P roperty  R ig h t s  of Co m p l a in in g  P arty 
W h ic h  A re E n t it l e d  to and  S u sc e pt ib l e  of P ro­
tec t io n  by J u d ic ia l  A c t io n .

“So much of the discussion in the preceding chapters 
as dealt with the cognate requirement of case or con­
troversy and with the subject of moot and abated 
cases has indicated the necessity that parties to cases 
heard in the Supreme Court establish their legal 
standing to invoke adjudication by that Court. But 
that discussion does not fully cover the requirements 
respecting the interest and status of parties. It is not 
sufficient that the issue presented be a live and not a 
moot one, that the parties be truly adversary, that the 
question urged be justiciable, and that the proceeding 
be one invoking the entry of a final judgment or de­
cree. Something more has historically been neces­
sary successfully to invoke the exercise of judicial 
power; the showing of necessity for protection of 
rights personal to the parties before the Court—rights 
entitled to and susceptible of such protection. As 
stated by the Court in the leading case of Tyler v. 
Judges of the Court of Registration (footnote, 179 
U. S. 405, 406-407, 21 S. Ct. 206, 45 L. Ed. 252):

“ ‘The prime object of all litigation is to establish a 
right asserted by the plaintiff or to sustain a defense 
set up by the party pursued. Save in a few instances 
where, by statute or the settled practice of the courts, 
the plaintiff is permitted to sue for the benefit of an­
other, he is bound to show an interest in the suit 
personal to himself, and even in a proceeding which 
he prosecutes for the benefit of the public, as, for 
example, in cases of nuisance, he must generally aver



-25-

an injury peculiar to himself, as distinguished from 
the great body of his fellow citizens.

“ ‘The very first general rule laid down by Chitty, 
Pleading p. 1, is that “the action should be brought 
in the name of the party whose legal right has been 
affected, against the party who committed or caused 
the injury, or by or against his personal representa­
tive.” An action on contract (p. 2) “must be brought 
in the name of the party in whom the legal interest 
in such contract was v e s t e d a n d  an action of tort 
(p. 69) “in the name of the person whose legal right 
has been affected, and who is legally interested in 
the property at the time the injury thereto was 
committed.” As stated by another writer: “No one 
can be a party to an action if he has no interest 
in it. A plaintiff cannot properly sue for wrongs 
that do not affect him, and on the other hand, a 
person is not properly made a defendant to a suit 
upon a cause of action in which he has no interest 
and as to which no relief is sought against him.” ’

“This historic view has from the outset been 
regarded as controlling the Supreme Court in the 
exercise of its original jurisdiction (footnote, See 
Sec. 302, post) and as constituting a component 
element of the statutes delimiting its appellate juris­
diction (footnote, Tyler v. Judges of the Court of 
Registration, 179 U. S. 405, 407, 21 S. Ct. 206, 
45 L. Ed. 252; Marshall v. Dye, 231 U, S. 250, 257- 
258, 34 S. Ct. 92, 58 L. Ed. 206.)

“It results that in every case coming to the Su­
preme Court, whether invoking the exercise of its 
original jurisdiction or seeking review of the decision 
of state or lower federal court, it is a jurisdictional 
prerequisite that the Supreme Court be satisfied that 
the suit involves the vindication of rights personal



-26—

to the parties thereto, which are entitled to and sus­
ceptible of protection by judicial action in that pro­
ceeding, and which are being invaded, or the invasion 
of which is certain and impending. (Footnote, ‘see 
all cases cited in this chapter.’) ” (Emphasis added.)

(1 )  T h e  C o n st it u t io n a l  R ig h t s  of C lasses.

The decision of June 15, 1953, is based upon the rights 
of a class unrepresented by a member thereof as a party 
to this action and without any consideration of the rights 
of the class to which the litigants belong. Heretofore this 
Court has not permitted any presentation of the rights 
of classes because of the rule that only the constitutional 
rights of litigants are justiciable. Now, however, if the 
rights of one class is properly before the Court, the rights 
of the class to which the parties belong is also.

Freedom of association is a constitutional right as 
implicit and absolute as the right to be free from illegal 
imprisonment or restraint. If it is to be regulated, it 
must be by legislation which is reasonably related to a 
valid legislative purpose, and the determination is legis­
lative.

Petitioners wish to point out, on behalf of the class to 
which they belong, that these racial restrictive covenants 
are not just examples of some wilfulness of man and do 
not merely represent man’s inhumanity to man. It does 
not help us not to recognize that behind this are certain 
facts of life. We cannot escape facing those sociological 
facts if we open this case to the rights of classes, which 
petitioners feel should not have been done. But since it has 
been done, let us face the facts.



-2 7 -

According to an article on page 4 of the February 26, 
1953, issue of one of two Negro newspapers published 
in Los Angeles “approximately one-half of the arrests 
for narcotics in the city of Los Angeles involves Negroes.”

This newspaper is not an irresponsible scandal sheet. 
It is published by one of our most respected Negro citizens 
who is a leader in all Negro affairs.

One of the reasons given in that article for the dis­
proportionate number of arrests of Negroes for narcotics 
violations “is the fact that unlike most addicts, he dresses 
the part. A ‘gas’ cigarette holder, exaggerated clothes, 
and a ‘real cool’ attitude to everybody and everything, are 
standard equipment. Thus, the average Negro who has 
been wearing the ‘monkey on his back’ for any length 
of time can easily be spotted.”

It is significant that the article uses the term “average 
Negro.”

The principal reason cited by the article for the dispro­
portionate number of arrests of Negroes is the unequal 
administration by the police department.

According to the “Uniform Crime Reports for the 
United States and its Possessions” issued by the Federal 
Bureau of Investigation, United States Department of Jus­
tice, Volume XXIII, Number 2, Annual Bulletin, 1952, 
United States Government Printing Office, Washington, 
1953, 64% of the persons arrested in the 232 cities reported 
in 1952 for murder and non-negligent manslaughter were of 
the Negro race. 44% of the persons arrested for robbery 
were Negroes, 64% of persons arrested for aggravated as­
sault were Negroes, 40% of persons arrested for other as-



-28 -

saults were Negroes, 30% of persons arrested for burglary­
breaking or entering were Negroes, 32% of persons 
arrested for larceny-theft were Negroes, 19% of persons 
arrested for auto theft were Negroes, 17% of persons 
arrested for embezzlement and fraud were Negroes, 34% 
of persons arrested for stolen property, buying, receiving, 
etc. were Negroes, 14% of persons arrested for forgery 
and counterfeiting were Negroes, 38% of persons arrested 
for rape were Negroes, 29% of persons arrested for 
prostitution and commercial vice were Negroes, 24% of 
persons arrested for other sex offenses were Negroes, 
47% of persons arrested for violation of narcotic drug- 
laws were Negroes, 59% of persons arrested for carrying, 
possessing, etc., weapons were Negroes, 29% of persons 
arrested for offenses against family and children were 
Negroes, 45% of persons arrested for violation of liquor 
laws were Negroes, 15% of persons arrested for driving 
while intoxicated were Negroes, 35% of persons arrested 
for disorderly conduct were Negroes, 17% of persons 
arrested for drunkenness were Negroes, 22% of persons 
arrested for vagrancy were Negroes, 69% of persons
arrested for gambling were Negroes, 26% of persons
arrested for suspicion were Negroes, 26% of persons
arrested for all other offenses were Negroes.

Only 10% of the population of the United States, 
according to the 1950 decennial census are Negro. It is 
important to note that the largest percentages above appear 
in the crimes of violence: Murder, 64% ; Aggravated 
Assault, 64% ; Rape, 38% ; Narcotics, 47% ; Carrying and 
possessing weapons, 59%.

The following is quoted from page 2 of the “Report 
to the Governor’s Council Meeting of May 25, 1953,”



—29-

by the California Youth Authority on its “Departmental 
Activities During April, 1953” :

“R a cial  P roblems Co n t in u e  A c u t e .

“It becomes increasingly apparent to persons with 
firsthand knowledge of the problem that tension be­
tween certain segments of the Los Angeles popula­
tion is increasing. Part of the difficulty stems from 
the expanding population of minority groups with 
consequent overflowing into new neighborhoods. In­
cidence of individual fights between members of ra­
cial groups, vandalism in schools, and slight increase 
in gang activities in schools formerly free from such 
a problem, indicate the heightened tension in certain 
areas of the city. The Los Angeles Probation De­
partment has assigned one full-time person to study 
the problem to determine its actual nature and scope. 
The Chief of Police of the Los Angeles Police De­
partment has pointed out that last year’s arrest sta­
tistics indicated a decrease in arrests in all categories 
of crime with the exception of those of violence and 
narcotics violation. In these last two categories, 
significant increases were noted.

“It is the opinion of some persons that part of the 
explanation of an uprising in those crimes is to be 
found in the increasing tension in certain segments 
of the population. Several service agencies, some of 
whom are leaders among the minority groups, are 
synchronizing their activities in an approach to a solu­
tion to this problem. Representatives from many of 
the service groups met with the Youth Authority 
parole staff in Los Angeles to discuss methods where­
by the activities of the Youth Authority parole staff 
could be closely integrated with other groups from 
the community in an attempt to solve this racial 
problem.”



—30—

These are some of the facts of life that force peaceloving 
people to join racial restrictive covenants. These cove­
nants are valid and constitute a legitimate exercise of 
the “freedom of the individual in and under a democracy” 
which has “implicit in it, as an absolute, the freedom of 
association.”

See:
Re Noble and Wolf, Ontario Weekly Notes (1949), 

at page 488.

Merely occupying houses in white neighborhoods is not 
all that Negroes want. This is apparent from the articles 
published in every national Negro magazine known to 
petitioners.

Attached hereto as Appendix “A” are the cover and 
pages 16, 17, 18 and 19 of the June, 1953, issue of the 
national Negro magazine “Color.” This article complains 
of “red tape” which obstructs marriages between Ameri­
can Negro soldiers and white German women.

The June, 1953, issue of “Sepia,” national Negro maga­
zine, contains on pages 8, 9 and 10 thereof (see App. “B”), 
an article contrasting the marriage to a Negro of a white 
woman in California with two young children by a former 
white husband, with marriage to a white man of a Negro 
woman with two young children by a previous marriage. 
The father of the white children obtained their custody 
in a California court.

Attached hereto as Appendix “C” are the cover and 
pages 71, 72 and 73, of the July, 1953, issues of the 
national Negro magazine “Ebony,” sold in June, 1953.



— 31—

Every national Negro magazine known to petitioners 
on the newsstands this month, June, contains one or more 
articles, either featuring or displaying intermarriage be­
tween Negroes and whites and in other ways illustrating 
the example being set for Negroes. There is no room in the 
philosophy being taught to Negroes for the white man’s 
personal freedom of choice of associates. This attitude 
among Negroes who move into white neighborhoods adds 
to the other factors which, equally understandably, make 
them unwelcome neighbors.

The pattern is the same in every neighborhood. When 
the first Negro moves in, there is a panic among the 
white residents to sell out and move away. “They can 
run but they cannot hide.” This was the expression used 
by one of the columnists in reference to white people in 
his article in the February 14, 1952, issue of the Negro 
newspaper referred to heretofore. There is a market 
among Negroes for only a few of the homes thus of­
fered for sale. The market among white people has dis­
appeared at the price the property would have brought 
if the neighborhood were “lily white.” This is the term 
used by Negro papers all over the nation for a neigh­
borhood which does not have Negro residents. White 
people will not pay the same price for at least two reasons: 
First, there are fewer white people who are willing to 
buy into the neighborhood, with the consequent effect 
of supply and demand on the price; and second, those 
who are willing to buy into the neighborhood know they 
can get it for less. This second reason applies also to 
possible Negro purchases. The result is that when a house 
is occupied by Negroes, the neighboring property owners 
suffer severely, both in the value of their property to 
them and in its sale value on the market.



•32-

(2 )  T h e  C lass D esig n a ted  “ N on-C a u c a sia n ” H as 
no C o n st it u t io n a l  R ig h t s  W h ic h  M ig h t  be 
A ffected  by a  J u d g m en t  for P e t it io n e r s .

The right which the Court feels the unidentified class 
has is defined by the majority opinion in these words:

“If a state court awards damages for breach of 
a restrictive covenant, a prospective seller of restricted 
land will either refuse to sell to non-Caucasians or 
else will require non-Caucasians to pay a higher 
price to meet the damages which the seller may 
incur. Solely because of their race, non-Caucasians 
will be unable to purchase, own and enjoy property 
on the same terms as Caucasians. Denial of this 
right by state action deprives such non-Caucasians, 
unidentified by identifiable, of equal protection of 
the law in violation of the Fourteenth Amendment.”

It is indeed a very startling idea that the unidentified 
non-Caucasians have constitutional rights in the private 
property of prospective sellers which are constitutionally 
beyond the reach of the record owners of that property. 
It is a surprise to the owner of the land in fee simple 
absolute to learn that unidentified strangers to him have 
constitutional rights in his property which he cannot 
contract away. It is even more surprising that this right 
should exist today although this prospective seller is not 
a party to this or any action and exist today even though 
this prospective seller has not now and may never in 
the future ever receive an offer to purchase from any 
non-Caucasian.

By far the most alarming aspect of the rule stated 
above is that unidentified non-Caucasians have a right 
to purchase private property from private parties free



— 33-

from any consideration of race. If there is such a right, 
a non-Caucasian could file suit as plaintiff to have this 
right vindicated. Surely we have not come to a state of 
the law where valid contracts cannot be enforced in any 
way by anyone and valid rights in property cannot be 
asserted by the persons to whom they belong, but only 
by strangers?

Surely, it must be clear that unidentified non-Caucasians 
can have no right in unidentified property belonging to 
unidentified owners in fee simple absolute.

Petitioners respectfully submit that before such a rule 
be permitted to stand, a rehearing should be granted to 
petitioners so that the point may be thoroughly brief 
and argued.

(3 )  J u d g m en t  for P e t it io n e r s  C a n n o t  A ffe c t  A ny  
S upposed  R ig h t s  of U n id e n t if ie d  N o n -C auca­
sia n s .

The language of the majority opinion defining the sup­
posed rights of non-Caucasians in unidentified property 
is quoted again:

“If a state court awards damages for breach of a 
restrictive covenant, a prospective seller of restricted 
land will either refuse to sell to non-Caucasians or 
else will require non-Caucasians to pay a higher 
price to meet the damages which the seller may incur. 
Solely because of their race, non-Caucasians will be 
unable to purchase, own, and enjoy property on the 
same terms as Caucasians.”

This statement presupposes that all property is subject to 
restrictions, for only in that event would non-Caucasians 
be unable to purchase, own, and enjoy property on the



■34-

same terms as Caucasians. The facts are that all public 
housing is unrestricted, all F. H. A. housing begun since 
February 15, 1950, is unrestricted [see R. 56], a large 
percentage of restrictive covenants have expired by their 
terms, a large percentage of restrictive covenants are 
worded in such a way that they can only be enforced 
in equity, which would be barred by the Shelley case, 
finally, a large percentage of the few covenants which 
could be enforced in damages, could not be enforced 
against the present owner because he is not the original 
signatory4 and therefore he would have no hesitancy to 
sell to non-Caucasians.

The supposed effect of a judgment for petitioners upon 
non-Caucasians is entirely speculative. There is noth­
ing in the record to indicate that non-Caucasians cannot 
purchase all the homes they can afford from F. H. A., 
unrestricted property, property subject to unenforceable 
covenants and property developed by their own entre­
preneurs. Petitioners should be given an opportunity to

4“As a general rule, liabilities cannot be transferred, nor as­
signed ; but there is an exception to this rule in case of covenants 
running with the land, in which case a grantee is liable for breaches 
which occurred while he holds the estate in the land.” (Emphasis 
added.)

15 C. J. 1301.
“Sec. 1466. Who are not. No one, merely by reason of having 

acquired an estate subject to a covenant running with the land is 
liable for a breach of the covenant before he acquired the estate, 
or after he parted with it or ceased to enjoy its benefits.” (Em­
phasis added.)

Civ. Code, Sec. 1466.



- 3 5 -

see the basis for claims that non-Caucasians cannot pur­
chase, own or enjoy property. Petitioners should have 
an opportunity to refute those claims. It should be re­
membered that this is the first time that the Supreme 
Court of the United States has decided a case upon the 
alleged rights of a class not represented by a member 
before the Court. For that reason alone, a rehearing 
should be granted to permit a consideration of the rights 
of other interested classes, particularly the one to which 
petitoners belong.

Petitioners respectfully submit that in considering the 
rights of these respective classes, the Court should be 
mindful of the following statement of this Court in the 
Civil Rights Cases, 109 U. S. 3, 25:

“When a man has emerged from slavery, and by 
the aid of beneficient legislation has shaken off the 
inseparable concomitants of that state, there must 
be some stage in the progress of his elevation when 
he takes the rank of a mere citizen, and ceases to 
be the special favorite of the laws, and when his 
rights, as a citizen or a man, are to be protected in 
the ordinary mode by which other men’s rights are 
protected.”

Petitioners respectfully submit that much of the un­
rest and friction now existing and growing between the 
races would cease if the leadership of certain minorities 
would not so persistently and fanatically urge their mem­
bers to insert themselves like a sliver under the finger­
nail of white society.



-36—

For the reasons set forth hereinabove it is respect­
fully urged that a rehearing of the above-entitled cause 
be granted and that, upon such rehearing, the judgment 
of the District Court of Appeal of the State of Cali­
fornia, Second Appellate District, be reversed and the 
cause be remanded for trial.

Respectfully submitted,

J oh n  C. M iles ,
J. W allace M cK n ig h t , and 
Charles L eland Bagley,

By J. W allace M cK n ig h t , 

Counsel for Petitioners.

Certificate of Counsel.
I hereby ceritfy that the foregoing petition for rehear­

ing is presented in good faith and not for delay.

J. W allace M cK n ig h t ,

Counsel for Petitioners.



APPENDIX A.



Robinson

FIERY FRANCINE



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Members <rf the Philadelphia Variety Club, responsible for this noble project

AMAESS 
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15 COLOR



POSING FOR FAMILY portrait are Sfc. John A. Wall, baby
Astrid, Mrs. Emmy Schucht, Torsten and white daughter, Gisela.

Mrs, Schucht is a divorcee.

rift "MOMMi I  HI



M ixed Couple in Frankfurt N ot Allowed to M arry

Under U. S. Arm y Rules;

Girls Can Now 

Sue for K id ’s Support

for G o lf D o rn se if

f o g .  17 ■ C 0 1 0 I

FOR THE FIRST time approximately 3,500 colored six-year-old boys and 
girls had to register in the Bonn-Republic’s schools last spring 1952 with some 
2,000 more going to the class rooms Easter time 1953.

One of these kids is Torsten Schucht-Wall, star of our picture-story and a 
Frankfurt citizen.

TORSTEN’S FATHER is Sfc. John A. Wall, a 32-year-old US-Army truck- 
driver stationed in Nuremberg, Germany. The boy’s mother, 44-yeartld German 
housewife Emmy Schucht got a divorce from her German husband in 1945 to live 
with Sfc. Wall.

The German-American couple, who are not allowed to marry under present 
US-Army laws, have three children. They are young Torsten, a nine-months-old 
girl, Astrid, and 14-year-old Gisela, white, daughter of Frau Schucht’s German 
ex-husband.

THESE FIVE PEOPLE live in Westhausen, a 
Frankfurt suburb, and Torsten and Gisela go to 
Praunheim Elementary School a few blocks from 
their four-room apartment. Frau Schucht is a secre­
tary employed with a local German firm and her 
eldest daughter, Gisela. takes care of the household 
while Mama works in a downtown office.

Although John and Emmy are unable to marry 
for the time being they live as happily together as 
possible with John getting many overnight passes 
through the channels of an understanding CO who 
knows how bitter it is to live separated in different 
towms.

HAVING LITTLE or no knowledge at all con­
cerning the' strange paths of US-Government and 
Army-routine, German school and welfare officials 
have already stopped wondering about what service­
men and officers may do or not do in the Bonn- 
Republic. Problems like marriage, adoption, etc., 
are handled in so many different ways depending 
on citizenship, unit commander, and good will of 
numerous other people that things are mixed up 
like never before.

As for the Schucht-Wall-family all are well -re­
spected citizens of their community and treated very 
friendly by the neighbors in Westhausen. Nobody 
has ever started discriminating the children or Mrs.

Schucht because of their inter-racial relations with Sfc. John A. Wall. On the 
contrary, Torsten has white playmates by the dozens who don’t care a damn 
about his chocolate complexion.

GENERALLY SPEAKING an estimated 96,000 US., British, and French 
servicemen have fathered illegitimate children—5,000 of them colored—during 
the past seven years in Germany.

Some of these fathers have married the mothers, some have acknowledged 
paternity before an Allied court, some have simply and voluntarily agreed to 
support their children and the mother as in the case of Sfc. John A. Wall who 
can’t get a marriage certificate although he would like to marry his fiancee 
Emmy Schucht as soon as possible.

BUT THE MAJORITY have disappeared beyond the seas and across the 
borders, leaving their children—and a large scale problem—behind in Germany.

The unwed mothers of these children have fought a 
long, uphill battle during the last seven years for 
the right to sue their khaki-clad Romeos for support 
of the children.

Their battle has now been w'on.
WITH RATIFICATION of the Bonn-Republic 

Contractural Agreement with NATO this Spring, 
German girls are now' free to sue their tan ex-lovers 
in order to get paid the amount of money needed 
for raising the occupation kids.

Some 45,000 white and colored Americans, 
40,000 Britishers and 10,000 Frenchmen, many of 
them colored too, face the possibility of a court 
suit or a settlement based on actions which may 
date back seven years to the early, lax days of the 
“love ’em and leave ’em” tradition of all conquerors.

ALTHOUGH 600,000 illegitimate children have 
been bom in Germany since the end of World War 
II, the 96,000 white and colored occupation babies 
have constituted a special problem because of the 
lack of specific legislation providing for their care. 
Up till now the decision to accept moral and legal 
responsibility has rested squarely with the father.

Marriage has provided only an occasional solu­
tion to the many temporary arrangements, partially 
because of strict laws dating hack to early occupa­
tion days which required IContinued on next page)

V A / /-
' 4"' N 1

V■»" Yt

THIS IS ASTRID, nine-month-old-sister of Torsten.

PROMINENT MEMBERS of newly established “League for the Protection of 
Colored German Nationals Against Racial Discrimination” are Mrs. Bertha Roemer, 
Dr. Willibald Schmidt and Heinz Kromer. They are high-ranking school officials.

SFC. JOHN AUSTIN WALL and his son, Tors­
ten, are the best of pals. Since the German side 
of the family could not understand English, John 
had to learn German which he now speaks fluently.

“DADDY” WALL enjoys wearing German 
house jacket, typical for husbands resting at 
home. Torsten and Astrid feel like riding on 

horseback.
IBS mm



SCHOOL REGISTRATION was an exciting affair for Torsten. Norbert Herold (left), Torsten’s 
kindergarten-mate; Torsten, Mrs. Emmy Schucht, mother; and school principal Dr. Wilhelm Ltih

sign documents.

TORSTEN IS VERY POPULAR with his classmates in Frankfurt's Praunheim-Elementary School. 
His best playmate, Norbert, sits next to him scribbling on his slate.

Red Tape Stops ILL’S In
Germany from M arriage

(Continued from, page 17 j
that a soldier married to a German national leave the area 
within a 90-day period.

Perm ission Required
Army permission to marry is still required, visa permis­

sion, which demands checking through consular channels 
and compliance, with all visa restrictions, must also be | 
obtained.

DESPITE THE ASSISTANCE of chaplains and other 
interested officials, few marriage papers, even hand-carried 
applications, can be accomplished in less than six weeks. 
Many a romance has blossomed and withered before an 
original application has been returned.

Some couples, faced with the choice of “being legal'’ and 
leaving, or “shacking up” and staying, have taken the easier 
road, only to have an abrupt transfer catch them with their 
paper work down.

STATISTICS SHOW that 25 percent of the departed 
Allied fathers have sent irregular voluntary financial aid 
to the girls they wooed and won in Germany. But for the 
other 75 per cent of the mothers things are fairly tough.

ITEM: Only one out of every three unwed mothers 
receives relief with the average check totalling about 25 
Deemarks per month I $6.00 ).

ITEM: Many of the mothers have either low-paying 
factory or office jobs, but many more are among Germany’s 
more than 1,000,000 unemployed.

Morale Problem
The Armed Forces, in recognition of the morale problem 

which occurs when fathers are separated “suddenly from 
their family” have granted morale leaves to such men to 
enable them to return to Germany and marry.

RATIFICATION OF the contractual agreements by the ■ 
Bonn-Parliament is the beginning of countless individual 
court cases which will be both time-consuming and expensive.

BIGGEST COST for the German women will be in hiring ’ 
legal representation in the foreign countries involved. 
Affidavits testifying to knowledge of their affair by former 
friends and neighbors will be solicited. Legal experts say 
that love letters in the handwriting of the father will be 
especially valuable to the mother, and if a child is men­
tioned, the case is usually decided.

Such paternity suits could be embarrassing for many a 
(now) older and wiser man, possibly settled down in his 
homeland with a local wife and other children. Many such 
“respectable” men are expected to settle the case out of 
court to save expenses as well as to keep the German­
speaking skeleton hidden in an other-world closet.

BUT IF THE father decides to fight the case and loses,)

TORSTEN’S FIRST TEACHER, Ludwig Weber, is member of Society for Belter Understanding IT COULD BE ART but only Torsten knows as he scribbles on his slate
of Christians and Jews and other organizations promoting cooperation with minorities. instead of doing home work tor next school-day.

COLOR . Page 18



GISELA. 14. ami her six-year-old half brother enjoy playing out-of-doors, doing 
a balance act on a sidewalk railing near their home.

the court will oblige him to contribute to the support of the 
child until it reaches the age of 16. The amount of the 
support awarded will vary in each case, and will usually 
depend on the economic status of both parties.

It is a certainty that all over the world at present men are 
searching their souls and thinking back to rosier “never 
had it so good” days. And many others are living their 
normal lives, little suspecting the events now in motion 
which may present them with a white envelope of trouble 
and thought this year 1953.

FOR SOME COUPLES, white and colored, the new 
provision may provide the spark which will bring forth 
happy reunions and the traditional “happiness ever after.” 
Whatever the outcome, the new provision is certain to raise 
controversy and discussion, once the cold wheels of justice 
begin their international duties. THE END.

COULD SHE BE JEALOUS of his call? Torsten says "don’t bother me” to Gudrun. 
his blonde kindergarten girl friend.

NOT READY 'for the Army yet, Torsten ICE CREAM and Gene Autry. How Aroeri-
poses with his daddy’s uniform head piece. can. Torsten teaches his pals how to be

smart cowboys.

BEFORE TORSTEN CAME to school he spent much of his time in this German kindergarten playing with toys sent from overseas by USA-Welfare organizations.

COIOR



MEN BEFORE MARRIAGE cannot do enough for their lady fair, what with promises of enduring 
love, fidelity, etc. But after the ceremony the husband’s attitude is something else again. He 

feels he has got his woman and he is going to make the most of it.

The Men
that ruin

By
JAMES TYLER

IN A  RECENT article entitled “Why good 
Women make Bad Wives,” many salient 
points were assembled to prove the case.

Unfortunately, the labored conclusions 
would not stand up in a court of domestic 
impartiality, being permeated with the fam il­
iar but subtle overtones of the “ age old” 
theni-v of “Masculine superiority” .

THE CASE COULD have been succinctly 
stated, that good women do not usually make 
bad wives, unless they are responding to the 
good men who have made bad husbands.

These husbands are the men who before 
marriage, were paragons of attention and con­
sideration. Experts in the art of anticipating 
the numerous small— but important to wives 
-—things that speak without saying, “you’re 
the one I care for.”

MI-LADY’S HEART tells her “this is it.” 
so she joins heart and hand with this man of 
many considerations following him up the 
highway of “domestic bliss,” or down the 
road of m arital frustration and disillusion­
ment.

These unions are usually “ blissful”  through 
several anniversaries, for consideration re 
mains the rule.

Iv>.

COLOR . Poge 20



APPENDIX R.



SEPIA
RECORD

W A S WILLIE MCGEE 
REALLV GUILTV?

A R E  N E G R O  
81G  L E A G U E R S  

SUPPING?

INTERRACIAL
"Problem”
MARRIAGES

Grace del Marco 
M odel

True Story — #/My Son Was



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Fir 8lfS» GIRLS & PARENTS, too!
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SCRAP FUN FOR EVERYONE. With a few 
sheets of paper, a bit of glue, some odds and 
ends and a pair of scissors you can quickly and 
easily make more than 400 different toys,01 

t as&d nick-nacks.

E D U C A T I N G
SCRAP FUN FOR EVERYONE combines j 
education and amusement. It teaches imagina­
tion and saving and at the same time givesa$sgocLfe£g.$ 
hours of pleasure, jewelry, kitchen 
heeds, airplanes, utility boxes,
Indian craft, useful baskets 
ate just a fraction of the 
in teresting novelties 
anyone can make.

Now make it yourself. Turn waste into valuable 
articles for the house, playroom, den, etc. SCRAP 
FUN FOR EVERYONE shows you how to make 
401 things out of scrap-—easily. You will find 
suggestions, diagrams and printed explanations 
that are as easy to follow as A-B-C. You will be 

\ thrilled with wliat you make. You will find 
|pleasurable past-time in completing useful articles 

. you turn waste into profit. It's almost like 
^finding money. Whether you are 6 or 60, you 
will find hundreds of things to make. SCRAP 
FUN FOR EVERYONE is crammed full of use­
ful, helpful suggestions and ideas between its 
384 instructive pages.

“ S C R A P  w m
FOR

E W E t Y O H E ”

Make your own party deco­
rations . . . hundreds of 
original and useful gift sug- 

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children of all ages 
. , . innumerable 
ideas that will keep 
the  wh o l e  family 
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Examine 5 Dap at Our Risk 
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examination coupon and mail i t  to as. Pay postman 
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arrival. If not satisfied a fte r  5 days, return for 
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ING $2.00 PLUS 25c POSTAGE WITH YOUR 
ORDER . . . SAME MONEY-BACK GUARANTEE.)

l a r c h  b o o k  c o m p a n y
118 fM t i»  St. New York !«, N. Y.

by  IViLYN GLAiNTZ
Arts and Crafts Instructor, New York 

City Public Schools

f  he a ro u n d  th e  clock 
p layroom

Every parent will welcome a copy ot 
SCRAP FUN FOR EVERYONE 
in the home. In "jig-time” everyone 
in the family can make something 
useful . . . made with your own 
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SCRAP FUN is so fascinating and 
useful that its value cannot be 
measured in dollars.

DON’T TUftOW THINGS AMY
Get a copy of SCRAP FUN FOR 

EVERYONE and stop throwing things away. Old 
toys, scraps of paper, bottles and jars, and dozens 

of other things can be quickly turned into interesting 
novelties . . . and all so e.asy. The pictures show

just what to do and the simplified instructions can be fol­
lowed by anyone.

MORE than S0O ILLUSTRATIONS 
384 INSTRUCTIVE PAGES

SCRAP FUN FOR EVERYONE is the work of an expert. 
Evelyn Glantz, the author, has devoted many years to teaching 
handicraft and creation. Printed in large type and bound in
stiff, wcw-io«iifig covers, SCItAS-FUN- F-QB^JEYERYONE.
belongs in every home.

M A I L  C O U P O N  T O D A Y !
■“ “ V'nv?T“oSTfir’8 LA R C H  BOOK CO.

i  118 East 28 S t ., New Y o rk  16, N . Y .
■ Send me SCRAP FUN FOR EVERYONE. I will pay 
B postman $2.00 plus postage and C.O.D. handling charges 
i  on arrival. I m ust be delighted, or I  will return it within 
|  5 days and my money will be refunded. (To save C.O.D. 
g charges, enclose $2.00 plus 25e postage with this coupon 
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1 □  Money enclosed □  Send C.O.D.

1 N A M E .... .  1
I  ADDRESS.

1 CITY.

0 m  t i e  O r n t M d e

Rosetta Lawrence is sultry Del Marco 
beauty. W atch for models' story soon!

Reward
'  , G O

That’s w hat’s feeing 
paid out

In cold cash
for stories and photos— 
t© p eop le all @ve» the  

USA
SEPIA is always in the market for 
fresh, good stories and sparkling 
pictures. W e pay top money for 

the best pictures.
___ _ _ * * n

Send us a letter for information! 
Anyone can be a good reporter and 
photographer. Send us your ideas.

Tit® Editor 
SEPIA Record  
B ox 2257
Fort W orth, T exas



SEPIA record 7

By CHARLES HERNDON
The Concrete Jungle

NEW YORE—Practically every­
one who lives in the concrete 
jungle confesses that it is a hard 
town. In no other place on earth 
are fame and oblivion so closely re­
lated. The glitter of Broadway’s 
brightest lights is often the gate­
way to ruin and heartache for 
those it glorifies.

No one knows the truth of the 
latter better than a barmaid who 
recently started work in an out-of- 
the-way uptown spot. Five years 
ago, she was a toast of the night 
club set. She was beautiful, a 
show girl, with enough men in her 
life to be the envy of every glam- 
ourpuss.

Life was one big party. She got 
a Cadillac and other expensive 
gifts. The cost of her seasonal 
wardrobe would have supported a 
small family a year. Of course, 
there were strings. Eventually, the 
pace caught up with her. She lost 
her beauty, her men, her money. 
And, in return, she got only the 
knowledge t h a t  the concrete 
jungle is the most deceitful of 
lovers.
Skyscraper Blues

The T r e a s u r y  Department, 
which long has had its own sus­
picions, to investigate reported 
bribes between record companies, 
performers and deejays for pref­
erential use of discs by last. Could 
result in income tax and restraint 
of trade raps for several big Negro
platter spinners.* * *

^  Still on a copper kick, the FBI 
missed a good Brooklyn arrest 
when a uniformed city dick acci­
dentally tipped the plot. Bureau 
men were secreted in a store where 
a fugitive gunman, working as a 
Idoor-to-door salesman, had an ap­
pointment.
I Minutes before the suspect was 
Idue, the uniformed cop, ignorant 
■of the trap, walked in and non- 
■chalantly started to smoke a ciga- 
f t  ette. (On duty, too!) Told of the

plot, the cop left. But feeling is the 
suspect, wanted for shooting an 
Army officer in the South, saw the 
uniformed cop waiting, formed his 
own conclusions, and blew—be­
cause he didn’t  show.

Stanley Rawls, the clever young 
commimic, in close conversation 
with Bob Gordon, director of both 
Jolson stories and “The Joe Louis 
Story.” A hint of things to come? 
. . . Chicago ballad singer, Ada 
Moore, a click with downtown east 
side patrons. It couldn’t  happen -to
a nicer person.

* * *
Talk Around Town

Sgt. Lloyd Sealy assigned com­
mand of a Brooklyn police Juvenile 
Aid Squad, marking first time 
Dodgertown has had a Negro 
plainsclothes commander. Too bad 
his wife could not have lived to see 
him get the honor. Her tragic 
death came a month before the as­
signment.

Luscious Corona, LI, model Lor­
raine Welch, getting the big push 
via Bill Keno. . . . Jimmy Ran­
dolph, the Brooklyn swoon bari­
tone, going places on the basis of 
crack radio, TV and personal ap­
pearances. Recently won a thou­
sand bucks on the “Strike It Rich” 
show.
Thinking Out Loud

Question: Which “Fats” Domi­
no is responsible for the blues hit 
parader, “Going Home?” Is he the 
guy doing most of his work in 
Ohio or the fellow with his main 
stomping ground around Georgia? 
Both are entertainers.# jfc if?

Jesse L. Vann, Unofficial Mayor 
of Brooklyn, getting his summer 
program set for Stuyford, Brook­
lyn’s Harlem, improvements. . . . 
Young concert singer Roma La- 
Margue, who scored recently dur­
ing auditions for NBC, flew to Ja­
maica to be near her ill father. . . . 
Telephone receptionist, M i r i a m  
Smith, around after second virus 
attack in six weeks. She works at 
Forest House, biggest of the city’s
settlement houses.

* * *
Character charged with hitting 

Detective Paul Senna on the head 
with a club, lucky he wasn’t shot. 
Cops only wanted to question him 
about a burglary. . . . Artist Bill 
Long let it be known he’ll tolerate 
no foolishness from the fellows 
concerning Katherine Sharper, a 
pretty Indian maid.



8

By BETH MICHAELS
Interracial marriages have al­

ways been regarded as social 
T-N-T.

They’ve been “freak” affairs 
—viewed by the public with a 
strict “hands-off” a t t i t u d e .  
Shunned by families (on both 
sides usually), and friends, the 
principals involved have been 
outcasts.

Thus, any interracial mar­
riage starts off with two strikes 
against it. Here are two of the 
most recent victims of this so­
cial stigma.

And here are the facts in 
each union.

Do you think they can last?

BECAUSE she married a Negro, 
a California mother, Mrs. 

Barbara R. Smith, is today faced 
with the loss of her two children.

m i E R
Divorced from her white hus­

band, she was given custody of 
their children without any pro­
test or dissatisfaction.

Everything went along smooth­
ly and everybody was happy, until 
she married a Negro. Then, 
trouble started.

Her ex-husband filed a petition 
on the grounds that “change of 
circumstance” for the children 
warranted his custody. He also 
protested that the man she mar­
ried was of questionable character. 
In court, it was pointed out that 
there were two charges against 
Willie Taylor, the Negro husband. 
He was arrested while playing 
poker in a private home in 1946, 
and he is a Negro.

The father charged that h i s

SEPIA recordf
. .. .u  .j3|

- R n C I H K
All marriages 

Can these
daughter, 10 - year - old Amanda 
Smith, is living in a crowded 
apartment and as a result, is in 
poor health. It was established 
through testimony of physicians, 
psychiatrists and her school teach­
ers that Amanda is in excellent 
health—both physically and men­
tally. The child testified that she’d 
rather live with her mother and 
that her stepfather was very kind 
to her and she is fond of him. It 
was established that the child’s 
living conditions are equal to those 
of her former father and mother.

This Wo I I an M arried N e g r o - -
MRS. BARBARA Smith nearly lost the custody of her two white children because she married a Negro man



9Sf- :: -s:vv;;

P R O B L E m  m R R R I R C E S
of this type create problems, 
couples overcome them?

Her welfare has been checked 
in every way and found to be sat­
isfactory.

Yet, the problem remains. The 
child testified that she did not see 
anything wrong with her mother 
marrying a Negro — but in this 
case, it’s not what she thinks, but 
what her friends and relatives 
think, that really matters. How 
will they treat her?

This little girl is torn between 
the love for her father and res­
pect, for her step-father. S h e  
wants to obey her mother and her

father, but how can she when both 
have such different beliefs? Mr. 
Smith, Amanda’s father, testified 
that the child’s grandmothers, 
aunts and uncles have nothing 
more to do with Mrs. Taylor since 
she has married a Negro. Children 
always consider it a treat when 
they are taken for a visit to grand­
mother and grandfather’s house. 
In fact, they enjoy visiting any 
relative. Can you imagine how she 
feels now that these visits have 
been denied?

Mrs. Taylor had worked at the

T h i s W o I I an M arried  a

United Motor Service in Berkeley 
for two years, but as a result of 
the publicity caused by the case, 
she lost her job.

Amanda testified that she loves 
her little half-brother, John, as 
much as she does her full-blooded, 
white brother, Eric. But as time 
goes on, it will be harder for her 
to prove it. She’ll discover that 
while they have the same mother, 
there’ll be many times when they 
won’t be allowed to go through the 
same doors or associate with the 
same people.

If there are other children born 
to the Taylors,what affect will it 
have on their lives? They have a 
chance to be white, but—no mat­
ter how white they are when born, 
they can be nothing but Negro.

(Please Turn Page)

W hite Man!
THINGS WERE a little smoother for Mrs. Alberto S. Briggs, a former barmaid, who married a millionaire.



10 SEPIA record

M illionaire m arries barm aid
Will their parents’ love and under­
standing be broad enough to make 
them want to be part of this mixed 
family or will they want to es­
cape the complications?

If Mr. Taylor was a wealthy 
man, it would make things easier 
for the family but since he is not,
all they can do is make the best 
of the situation. The luxuries that 
could be bought to help brighten 
the children’s lives cannot be af­
forded.

Mrs. Taylor has an order from 
Judge Harold Jacoby of Contra 
Costa county restraining Mr. 
Smith from taking the children, 
Amanda, 10 and Eric, 3 out of the 
state, while the appeal is pending.

Mrs. Taylor will carry her fight 
to the Supreme Court if it is nec­
essary. If she wins the case, that 
does not mean she will win peace 
and happiness with her family. 
The people around will see that 
she does not. After the trial is 
over, she’ll still be on trial as far 
as they are concerned. Her family 
will be the center of gossip and 
curiosity.

We must admit that marriages 
between Negroes and white create 
larger problems than any other 
interracial marriages. The sad part 
about them, is that the children 
are the ones who usually suffer 
most. Their parents ignore the 
risk of racial conflict and get mar­
ried. They may love and under­
stand each other, but when the 
children come along, instead of 
serving as a tie between the races, 
they become a problem, because 
there is no “in-between” race. 
They are not white and they are 
not Negro. It is easier for them 
to call themselves Negro because 
there are all shades of color in the 
Negro race and also, this race will 
accept them quicker than the 
white one.

The children involved in the 
marriage between Mr. Ernest 
Briggs, the 67-year-old multimil­
lionaire to Miss Alberta Sheffield, 
face a similar problem. Mrs. Briggs 
is the mother of two children, 
James, 3 and Leela, 2 by a prev­
ious marriage. The couple had 
been married a week before the

news leaked out. Yet, when it was 
made public, the father of the two 
small children did not rush in to 
file a petition to take the children 
away from the mother because 
she’d married a white man.

It is true that the family is 
plagued by reporters and photog­
raphers—and even people who call 
because they are curious.

Everyone realized it was an 
unusual incident f r o m  many 
angles. First, it was an interracial 
union. Secondly, it is the “Cin­
derella” type of wedding—since 
Mr. Briggs is a member of a 
moneyed auto parts family.

Thirdly, there’s a vast margin 
between their ages—she being 
and he, 67. We must admit that 
the publicity given them was far 
different from the cruel treatment 
given the marriage of the Taylors,

It has not thrown her two chil 
dren into as much confusion and 
bewilderment. While the Taylors 
are sitting in constant tension, 
waiting and hoping for the best, 
the Briggs family is enjoying life 
and looking forward to a happy 
future together. The two children 
are being adopted by Mr. Briggs 
so they can share his name as well 
as his love and liberality. So far, 
in this case, there are no problems 
to mar this marriage.

Why is there so much difference 
in the two cases? Does it mean 
that enough “cold cash” can pre­
vent “hot gossip” from harming 
you? Or does it mean that the pub­
lic feels that one mother reachedj 
up— while the other stooped down! 
What is your opinion in either

ERNEST BRIGGS talks over old times with dancing m.c., Shorts Davis. case?



A PPEN D IX  C.





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Dancing star of Sunset Club show is Vera Antia, who entertains customers with a sensational shake dance done 
to the accompaniment of a five-piece jump band. Dancer from Cardiff, Wales, has been at club two years.

LONDON’S 
SUNSET CLUB
Liquorless beige-and-blonde 
nitery is popular attraction
L ONDON’S night clubs were carried to the 

peak of a glittery, noisy and iiquory boom 
during the American “occupation.” Today the 
melody lingers on in an institution brand new 
to England—the bumptious beige-and-blonde 
clubs, American style. Like Coca Cola and 
chewing gum, this startling import is now an 
integral part of the English social landscape. 
They do an exceptionally brisk business, cater­
ing to Negroes and white people who wish to 
frolic together in a congenial atmosphere.

Most typical of London’s beige-and-blonde 
places is the Sunset Club, which has become 
so popular that any taxi driver’s eyes brighten 
with recognition at the mere mention of its 
name. Situated on Carnaby Street in Soho, 
near famed Piccadilly, it is a low-ceilinged 
basement of a bombed-out building.

Serving only sandwiches and cokes (liquor 
is forbidden) and having just a passably fair 
floor show, the Sunset Club has just one main 
attraction. It is the spot where white women 
can go and dance freely with Negro men. And 
the club is packed seven nights a week.

Dancing couples at Sunset Club include titled ladies as well as factory and shop girls. They have one thing in common—they love to dance with Negroes. Club has 500 
members who pay $3 to join and 50 cents each night they attend. Third of membership is white women—half English and the others French, German, and American.

Continued on Next Page 71



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Looking as “sent” as any American jitterbug, English girl dances with Air Force 
soldier. In addition to th^ shop and factory girls who are there nightly, Sunset at­
tracts a number of the footloose married women out for a clandestine night.

Did You Ever See aj 
B aldheaded S h eep ?

Tn your ; 
iVlitCeriais

time, in your nwn homfi! No classes—All

Write today for covfplete information

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BOX 144-B, Sta. E ATLANTA, GA.

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W ITH

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TAKE NO SUBSTITUTE
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TO BE SET TO MUSIC
Send Your Poems Today For Free Examination to

J. CHAS. McNEIL
A. B. MASTER OF MUSIC 

510-E So. A lexandria, Los A ngeles 5, Calif.

Lingering goodnights at Sunset’s doorway at 4 a.m. closing time are common. Leslie 
changed name of club from Moonglow to Sunset because as he says, “The new 
name signifies a bright horizon and makes me feel much more optimistic.”

Many women can have i t . . .  
but do not know how!

Lovely, lighter skin beauty often lies hidden be­
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M en and  w om en who h ave  a b u se d  an d  to r tu re d  
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Moil This Coupon Today— SEND NO MONEY

r  ■
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242 East Ohio St., Chicago II,  III.
Rush me the 240-day supply of NIL-O-NAL. If  every­
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THREE $2.00 Jars only $5.00 plus tax, same guar­
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NAME .
(print plainly)

j S T A T E . . . ............................................................................  I
I □  Send C.O.D. I 'll pay postman only $2.00 per jar j 
I plus 20% Fed. tax and C.O.D. postage.
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J □  Enclosed is cash, check or money order for $2.40, I 
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* O  Send prepaid.
i-------------------------------------- 1

1 ADDRESS
I
, C IT Y . . . , . ZONE

Searching patrons ior concealed liquor, Sunset proprietor Gustavos Leslie is cautious 
about conducting a respectable club to win police approval. Unlike most Soho 
district clubs, the Sunset vigorously bars admittance to all known prostitutes.

Or order today from  H ollyw ood
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AFTER

74



Service of the within and receipt of a copy
thereof is hereby admitted this................... day of
July, A. D. 1953.

7-13-53—375