Wolfe v. North Carolina Brief on the Merits
Public Court Documents
October 5, 1959
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1959
NO. 7
LEON W OLFE, GEORGE S IM KIN S, JR.
JOSEPH STURD IVEN T, SAMUEL MURRAY,
and ELIJAH H. HERRING, Appellants
vs.
STA TE OF NORTH CAROLINA
Appeal from the Supreme Court of the State of North Carolina
BRIEF ON THE MERITS
Counsel of Record for Appellants:
J. Alston Atkins
c/o Kennedy and Kennedy
13 East Third Street
Winston-Salem, N. C.
Other Counsel for Appellants:
Harold L. Kennedy and
Annie Brown Kennedy
13 East Third Street
Winston-Salem, N. C.
C. O. Pearson
20372 E. Chapel H ill Street
Durham, N. C.
Carter W . Wesley
P. O. Box 3086
Houston 1, Texas
James M. Nabrit, Jr.
330 College Street, N. W.
Washington, D. C.
H. Carl Moultrie, I
3005 Georgia Avenue, N. W.
Washington, D. C,
INDEX
Pages
Opinions in Court Below ........................................................ 1
Grounds of Jurisdiction ............................................. -........... 1- 2
State Statute Involved ............................................................. 2
Provisions of U. S. Constitution Involved ............................ 3
Questions Presented by Th is Appeal:
The Supremacy Clause Questions .............................. 3- 4
The Fourteenth Amendment Questions:
Under the Equal Protection Clause .................. 4- 5
Under the Due Process Clause ............................ 5
The Question of Judicial Notice................................... 5- 6
Statement of the Case ........................................................ .- 6-16
Summary of Argument:
On the Question of Jurisdiction ................................... 16-17
On the Merits:
Under the Supremacy C lause.............................. 18
Under the Fourteenth Amendment.................... 18-19
The Question of Judicial Notice ................................... 19
Argument I, The Question of Jurisdiction:
Raising of Federal Questions Be low ..........-................ 19-25
Actions of Courts Below on Federal Questions......... 25-26
Jurisdiction of U. S. Supreme Court:
Regarding Federal Questions in Pleadings...... 26-28
To Examine Record for Racial Discrimination .. 28-29
To Determine Validity of State Statute ........... 29
To Determine Equal Protection
Other Than Racial ................................................. 30
To Determine Questions of Due Process........... 30-32
Pages
To Determine Effect of Agreement
with United States ............................... ................. 32
To Protect Judgments of Federal Courts ......... 32-34
As Determined in Frank v Maryland ...... -........ 35-36
Since State Court Considered "The Merits" .... 36
As Determined in Irvin v Dowd ......................... 36-37
Legal Meaning of "The Merits" ......................... 37-38
Argument II, The Case on the Merits:
The Supremacy Clause Questions.-
(1) Does the State policy of making Gillespie
Park Golf Course "a private club for members
and invited guests only" collide unconstitutionally
with the policy of Federal law that this facility
must provide "the greatest degree of public use
fulness"? Is the State's criminal trespass statute
unconstitutional as applied in this case, because
it seeks to implement such a State policy that is in
direct conflict with Federal law? .............................. 38-41
(2) Can the State constitutionally avoid or vitiate
the agreement made with the United States by its
agencies, City of Greensboro and Greensboro
City Board of Education, that during its useful life
this golf course would be operated "fo r the use
and benefit of the public" and would not "be
leased, sold, donated, or otherwise disposed of
to a private individual or corporation, or quasi
public corporation"? Is the State's criminal tres
pass statute unconstitutional as applied in this
case, because it seeks to implement avoidance by
the State's agencies of their agreement with the
United States that this golf course would be thus
operated? ...................................................................... 41-43
(3) Can the State constitutionally make a crime
out of identical acts and conduct which the Fed-
ii
Pages
erai Courts have held to be protected by the
Constitution of the United States, and make law
ful acts of the State's agencies which the Federal
Courts have held to have been "unlaw fully" com
mitted against the "constitutional rights" of the
appellants? Is the State's criminal trespass statute
unconstitutional as applied in this case, because
it renders ineffectual the judgments of the United
States Courts? ............................ ............................... . 43-50
The State was constitutionally a party to the
Federal Court proceedings ................... ................. 46-48
Question of offering the Federal Court records
in evidence ..................................................... ............. 48-50
The Fourteenth Amendment Questions:
The "Equal Protection of the Laws" Questions:
(1) Does the record show racial discrimination
against appellants in the use of Gillespie Park
Golf Course (a) by the "facts" in the "published
opinion" of the Federal Court, which the State
Supreme Court said were known to the state
courts? or (b) by the Declaratory Judgment of the
Federal Court, which was alleged verbatim in the
Motion to Set Aside the Verdict and which was
not denied or controverted by the appellee State
in any way? or (c) within the "ru le of exclusion"
established by the decisions of this Court? Is the
State's criminal trespass statute unconstitutional
as applied in this case, because it seeks to imple
ment and make good racial discrimination?........ 50-55
(2) Does the "lack of standards in the license-issu
ing practice" for playing on Gillespie Park Golf
Course constitute "a denial of equal protection"
without regard to racial discrimination, within the
meaning of the decisions of this Court? Is the
State's criminal trespass statute unconstitutional
iii
Pages
as applied in this case, because it seeks to make
lawful such "lack of standards"? ............................ 55-59
The "Due Process of Law" Questions ....................... 59-71
(1) Do the State rules in this case which closed
the mouths to the truth of certain key witnesses
violate the justice and fundamental fairness which
the Due Process Clause of the Fourteenth Amend
ment commands of the States in criminal prosecu
tions? Is the State's criminal trespass statute un
constitutional as applied in this case, because
it seeks to implement and make lawful such im
pediments to the discovery of truth? .................... 60-65
(2) The Supreme Court of North Carolina having
for the very first time held in this case that this
criminal trespass statute applies also to public
lands, and not just to lands "privately held," does
the judgment in this case send each of the appel
lants "to jail for a crime he could not with reas
onable certainty know he was committing"? ...... 65-67
(3) Do the multiple criminal proceedings against
appellants in this case reach the areas which the
Due Process Clause forb ids?................... ................. 67-71
Argument III, The Question of Judicial Notice.................. 72-79
Documents Representing Federal
Court Proceedings ........... ...... ........................................ 72-73
Documents Which Represent Federal Law ................ 73-74
Judicial Notice in Applications of
Federal Law ............................................................ 75
Judicial Notice of Public Documents ......................... 75-76
Principles and Philosophy of Judicial Notice ......... 76-77
Conclusion ................................................................................. 77-79
Appendixes ............................................................................... 80-98
iv
TABLE OF CASES
Allied Stores etc. v Bowers,__US__ , 3 L ed 2d 480 .... 27, 36
36
Angel v Buliington, 330 US 183 ................................................. 34
Ashcraft v Tennessee, 322 US 143 .......................... ................. 28
Aycock v Richardson, 247 NC 234 ........... ............................... 50
Bartkus v Illinois, — US— , 3 L ed 2d 684 ................................ 59
Bell v Hood, 327 US 678 ............................................................. 38
Bibb v Navajo Freight Lines,__US__ , 3 L ed 2d 1003 ......... 12
Bland Lumber Co. v National Labor Relations Board,
177 Fed 2d 555 ...................................................................... 32
Bonham v Craig, 80 NC 224 ..................................................... 25
Bowles v United States, 319 US 33 .................................. 75, 77
Brock v North Carolina, 344 US 424 ............................ 5, 31, 67,
70, 71
Brown v Board of Education, 344 US 1 ................................... 72
Brown v Western Ry of Alabama, 338 US 294 ............. 27, 36
Capital Service, Inc. v National Labor Relations Board,
347 US 501 ................................................................................ 32
City of Greensboro v Simkins, 246 Fed 2d 425 .................. 6, 9
Clearfield Trust Co. v United States, 318 US 363 ............. .... 40
Cooper v Aaron, 358 US 1 ..................................... . 45, 46, 47
Eubanks v Louisiana, 356 US 584 ............................................. 51
Frank v Maryland, US— , 3 L ed 2d 877 .................... 35, 36
Garner v Teamsters etc., 346 US 485 .............................. 48, 74
Haley v Ohio, 332 US 596 ........................ ................................ 43
Hawkins v United States, US— , 3 L ed 2d 125 ........ 60, 65
Pages
Hernandez v Texas, 347 US 475 ....................................... 4, 51
Hoag v New Jersey, 356 US 464 ........................ ........ 5, 31, 67
Irvin v Dowd, _ U S _ , 3 L ed 2d 900 ....................... 36, 37, 73
Ivanhoe Irrigation Dist. v McCracken, 357 US 275 ___ 40, 41
Jackson v Carter O il Co., 179 Fed 2d 524 ........................... 32
Jacksonville Blow Pipe Co. v Reconstruction Finance
Corp., 244 Fed 2d 394 ........................................ ................. 32
Leiter Minerals, Inc. v United States, 352 US 220 ............ ..... 32
L illy v Grand Trunk Western R. R. Co., 317 US 481 .... 40, 75
Local 24 etc. v O live r,__US__ , 3 L ed 2d 3 1 2 .................... 41
Mangum v Atlantic Coast Line Ry. Co., 188 NC 689 .......... 74
Marsh v Alabama, 326 US 501 ..... 29
Mason v Commissioners of Moore, 229 NC 626 ___________ 50
M iller v Arkansas, 352 US 187 ................................. ........ 40, 41
NAACP v Alabama, 357 US 449 ................. ........... ................. 66
Napue v Illin o is ,__US__ , 3 L ed 2d 1217 ..................... 11, 28
Niemotko v Maryland, 340 US 268 ...... ........... 5, 28, 30, 55,
56, 57, 58, 59, 66
Parker v Brown, 317 US 341 ........ ..... ........................ ...... ....... 76
Pocahontas Terminal Corp. v Portland Bldg. & Const.
Trades Council, 93 Fed Supp 2 1 7 .................... ......... 73, 74
Public Utilities Commission v United States, 355 US 534 ___ 47
Raley v O h io ,__US__ , 3 L ed 2d 1344 ____________ 3, 4, 59
Schulte v Gangi, 328 US 1 0 8 ..................................... ................ 76
Scull v V irg in ia ,__US__ , 3 L ed 2d 865 .................. 5, 31, 65
Shelley v Kraemer, 334 US 1 ................................................ . 58
vi
Pages
Pages
Simkins et ai. v City of Greensboro, et a!.,
149 Fed Supp 562 .........— .................... 9, 11, 12, 13, 14,
15, 18, 20, 21, 22,
23, 24, 30, 32, 43,
44, 46, 49, 51, 52,
54, 61, 67, 77, 78
Southern Pacific Company v Steward, 245 US 359 ----- 42, 74
State v Best, 111 NC 638 --------- ---- —........— .................. -...... 35
State v Clyburn, 247 NC 455 -------------------------- —- 5, 65, 66
State v Cooke et al., 246 NC 518 ............. .................. 1, 9, 10,
68, 70
State v Cooke et ai., 248 NC 485 ....... ........... -....................... 1
State v Council, 129 NC 371 (511) ..................................... 2, 50
State v Godwin, 5 Iredell (NC) 401 ................... -.......- ........... 35
State v Smith, 129 NC 546 ........................................................ 69
State v W illiam s, 151 NC 660 .....................................-............. 69
Staub v City of Baxley, 355 US 313 .....-..................... ---- 26, 36
Thomason v Cooper, 254 Fed 2d 808 - .....—.................. 33, 47
Tomkins v Missouri, 323 US 485 ....................................-........... 25
United States v County of Allegheny, 322 US 174 ....... . 42, 43
United States v John J. Felin Co., 334 US 624 ...........—........ 73
United States v Reynolds, 345 US 1 — .......................... 60, 65
W ells v United States, 318 US 257 ...... .....................- ........— 72
W illiam s v Georgia, 349 US 375 ...........................................— 50
W olf v Colorado, 338 US 25 ------------ ------- —......... -........ 59, 65
Zahn v Transamerica Corporation, 162 Fed 2d 36 ............. 75
vii
C O N STITUTIO N OF UN ITED STA TES
Pages
Article VI, Paragraph 2 ................................ 3, 17, 18, 19, 20,
38-50, 73, 74, 77
Fourteenth Amendment................................... 3, 17, 18, 20, 22,
44, 45, 50-71, 78
FEDERAL S TA TU TES
28 USC 1257 (2) ...................................................... 2, 17, 38, 77
28 USC 2103 ................................................... 2, 17, 38, 77
28 USC 2201 ........................................................................... 47, 74
28 USC 2283 ..................................... ..................................... 32, 33
53 Stat 927, Chap 252 ................... ............................... 6, 38, 39
W PA RULES AND REGULATIONS
Manual of Rules and Regulations, Library of Congress
Book HD 3881 .A58 ........................................................ 3, 39
GENERAL STA TU TES OF NO RTH CAROLINA (1953)
Section 1-159 .................................................................................. 25
Section 7-64 .......................... .............................. ..................... 69
Section 14-134 ...................................................... 2, 4, 5, 10, 12,
17, 18, 19, 24, 31,
38, 44, 47, 51, 77, 78
TEX TS
By-Laws, Gillespie Park Golf Club, Inc ............................ 58, 59
Certificate of Clerk, Supreme Court of North Carolina .. 2, 50
"Evidence-Cases and Materials"—Morgan, Maguire and
Weinstein (1957)
57 Harvard Law Review—"Judicial Notice"
76
76
2 Stanford Law Review—"Sense and Nonsense About
Pages
Judicial Notice" ...................................................................... 76
"The North Carolina Guide"—Robinson (1955) .................... 52
APPENDIXES
1 (a), 1(b) and 1 (c) ................................................. 6, 7, 42, 52
2 (a), 2 (b), 2 (c), 2 (d), 2 (e) and 2 (f) ............................ 16, 53
2 (g) ........................................................................... 8, 16, 53, 55
3 (a), 3 (b), 3 (c), 3 (d), 3 (e), 3 (f),
3 (g), 3 (h), 3 (i) ............................................ 39, 40, 41, 52
4 (a) and 4 (b) — ............................... .......... -...................... 49, 77
IN THE SUPREME COURT OF TH E UN ITED STA TES
October Term, 1959
No. 7
Leon Wolfe, George Simkins, Jr.,
Joseph Sturdivent, Samuel Murray, and Elijah H. Herring
Appellants
v
State of North Carolina
Appeal from the Supreme Court of the State of North Carolina
BRIEF ON THE MERITS
This Court having, on January 12, 1959, entered an order
postponing further consideration of the question of jurisdic
tion to the hearing of the case on the merits (R 140), appel
lants file this Brief on the Merits pursuant to Rules 40 and 41
of the Revised Rules of this Court.
(a) Opinions in the Court Below
The Opinion of the Supreme Court of North Carolina de
livered upon rendering the judgment here appealed from is
reported in State v Cooke et al., 248 NC 485, 103 SE 2d 846.
(R 107) That Court's Opinion upon a former trial upon another
set of warrants charging the identical trespass upon the munici
pal Gillespie Park Golf Course is reported in State v Cooke et
al., 246 NC 518, 98 SE 2d 885. (Page 55 of Appellants' State
ment as to Jurisdiction)
(b) Grounds of Jurisdiction
This is a criminal prosecution commenced in the Munici
pal-County Court of Greensboro, North Carolina, alleging a
1
simple trespass by appellants upon the municipal Gillespie
Park Golf Course. The warrants were issued under Section 14-
134 of the General Statutes of North Carolina (1953), which
appellants contend is unconstitutional under the Federal Con
stitution as upheld and construed and applied in this case.
The Judgment of the Supreme Court of North Carolina
appealed from was entered on June 4, 1958. (R 118) The
sentence involved is 15 days in jail for each of appellants.
(R 26-27)
No Petition for Rehearing in a criminal case is permitted
in the Supreme Court of North Carolina. State v Council, 129
NC 371 (511), 39 SE 814. See also the Certificate of the Clerk
of that Court. (R 139) Notice of Appeal to this Court was filed
in the Supreme Court of North Carolina on August 27, 1958.
(R 132) Appellants filed the Record and their Statement as to
Jurisdiction and docketed the case in this Court on October
22, 1958, becoming No. 466 of the October Term, 1958.
Appellants believe that this Court has jurisdiction of this
appeal under 28 USC 1257 (2). However, appellants have
prayed in their Statement as to Jurisdiction and also in their
Brief Opposing the Motion to Dismiss, and here renew that
prayer, that if they should be mistaken in this belief, then that
the appeal papers be treated as a Petition for Certiorari under
28 USC 2103 and that such Petition be granted.
(c) State Statute Involved
The validity under the Constitution of the United States
of Section 14-134 of the General Statutes of North Carolina
(1953), as upheld and construed and applied by the State
Courts to convict the appellants, is drawn in question upon
this appeal, the Supreme Court of North Carolina having
necessarily sustained said Statute's validity, said section read
ing:
" I f any person, after being forbidden to do so, shall
go or enter upon the lands of another without a license
therefor, he shall be guilty of a misdemeanor and on con
viction shall be fined not exceeding fifty dollars or im
prisoned not more than thirty days."
(c) Provisions of U. S. Constitution Involved
The provisions of the Constitution of the United States
which appellants contend are offended by the above-quoted
State statute, as upheld and construed and applied in this
case, are the following:
Article VI, Second Paragraph
"Th is Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Jreaties
made, or which shall be made, under the Authority of the
United States, shall be the supreme Law of the Land; and
the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Con
trary notwithstanding."
Fourteenth Amendment, Section 1
"A ll persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life,
liberty, or property, without due process of law; nor deny
to any person within its jurisdiction the equal protection
of the laws."
(d) Questions Presented by This Appeal
1. TH E SUPREMACY CLAUSE Q UESTIO N S
Is the State's criminal trespass statute (GS 14-134) uncon
stitutional "as applied"* in this case because:
(1) It seeks to implement the State's policy of making
Gillespie Park Golf Course "a private club" (R 44, 75) in direct
conflict with the policy of Federal law that this facility must
provide "the greatest degree of public usefulness" (Manual of
Rules and Regulations of W.P.A., Vol. II, Chap. 5, Page 1,
Library of Congress Book No. HD 3881.A58)?
*(See Raley v Ohio,___US___ 3 L ed 2d 1344, 1 3 5 3 ,____S C t__)
3
(2) It seeks to implement the State's effort to render in
effectual the agreement made by the State's agencies, City of
Greensboro and Greensboro City Board of Education, with the
United States, that during the useful life of this golf course it
would be operated "fo r the use and benefit of the public" and
would not "be leased, sold, donated, or otherwise disposed of
to a private individual or corporation, or quasi-public corpora
tion"? (See Fact No. 4, infra, and Appendixes 1(a), 1(b), and
1(c), Pages 80-82.)
(3) It seeks to implement the State's effort to make a crime
of identical acts and conduct which Federal Courts held
to be protected by the Constitution of the United States, and
make lawful acts of the State's agencies which the Federal
Courts have held to have been "unlaw fully" committed against
the "constitutional rights" of the appellants? (R 92)
II. TH E FO URTEEN TH AM ENDM ENT Q UESTIO N S
Is the State's criminal trespass statute (GS 14-134) uncon
stitutional "as applied"* in this case:
A. Under the Equal Protection Clause:
(1) Because it seeks to implement and make good the
practice of racial discrimination against appellants by the
State's agencies, as shown:
(a) By the "facts" in the "published opinion" of the United
States District Court for the Middle District of North Carolina,
which the Supreme Court of North Carolina said in its opinion
in this case were before the State courts (R 115)? (b) By the
Declaratory Judgment which was alleged verbatim in the Mo
tion To Set Aside the Verdict (R 92) and which allegation was
not controverted by the appellee State in any way? (c) Within
the "ru le of exclusion" established by the decisions of this Court
(e.g. Hernandez v Texas, 347 US 475, 480, 98 L ed 866, 871,
74 S Ct 667)?
(2) Because a "lack of standards" in the permission-grant
ing authority to play Gillespie Park Golf Course constitutes
*(See Raley v Ohio,— US__ , 3 L ed 2d 1344, 1353, S Ct )
4
"a denial of equal protection" without regard to racial dis
crimination, within the meaning of such cases as Niemotko v
Maryland, 340 US 268, 273, 95 L ed 267, 271, 71 S Ct 325?
B. Under the Due Process Clause:
(1) Because it seeks to implement a denial of due process
to appellants in this case:
(a) In that the State rules which closed the mouths to the
truth of certain key witnesses in this case violate the standards
of justice and fundamental fairness which the Due Process
Clause of the Fourteenth Amendment requires of States in
criminal prosecutions?
(b) In that the Supreme Court of North Carolina for the
very first time held in this case that this criminal trespass stat
ute (GS 14-134) applies also to public lands, and not just to
lands "privately held" (State v Clyburn, 247 NC 455, 458, 101
SE 2d 295), and the judgment here thus sends each of the
appellants "to jail for a crime he could not with reasonable
certainty know he was committing" (Scull v Virginia,— US
___, 3 L ed 2d 865, 871, 79 S Ct 838)?
(c) In that the multiple criminal proceedings against appel
lants in this case reach areas which the Due Process Clause
forbids, such as "fundamental unfairness" or "unduly harassing
an accused" (Hoag v New Jersey, 356 US 464, 467, 2 L ed 2d
913, 917, 78 S Ct 829), or "merely in order to allow a prose
cutor who has been incompetent or casual or even ineffective
to see if he cannot do better a second time" (Concurring Opin
ion in Brock v North Carolina, 344 US 424, 429, 97 L ed 456,
460, 73 S Ct 349)?
III. TH E Q UESTIO N OF JUDICIAL NOTICE
Insofar as this question should become important in this
case, appellants believe that it may cut across both the Ques
tion of Jurisdiction and the Case on the Merits. Therefore,
this Question of Judicial Notice is given separate treatment.
The Question Is: What documents or facts which may be
come germane to a decision of this case come within the prin
5
ciples under which this Court w ill take judicial notice of such
documents and facts?
STA TEM EN T OF THE CASE
Linder the Federal Emergency Relief Appropriation Act of
1939, 53 Stat 927, Ch 252, the appellee's agencies, City of
Greensboro and Greensboro City Board of Education, made
application for a WPA grant to build the golf course involved
in this case. The grant of 65 per cent of the cost was made and
the golf course was built, later becoming known as Gillespie
Park Golf Course. (See Appendix 1 (a), Page 80 and Fact No.
4, infra, Page 13.)
As required by said Federal Act and its authorized regula
tions, appellee's said agencies agreed with the United States
(1) that the golf course would be a public course, (2) that the
City of Greensboro would maintain and operate the golf
course during its useful life for the benefit of the public, and
(3) that during the useful life of the golf course it would not be
leased or otherwise disposed of to a private individual or
corporation or to a quasi-public corporation. (See Fact No. 4
infra, Page 13.)
Appellee State's agency, City of Greensboro, describes
the agreement with the United States Government on Pages
4, 7 and 8 of its "B rie f and Appendix" on appeal to the United
States Court of Appeals for the Fourth Circuit (No. 7450 on the
Docket of that Court, filed May 14, 1957) and photographic
reproductions of those pages are attached hereto as Appendix
1 (a), Appendix 1 (b), and Appendix 1 (c), respectively. The
District Court's Finding of Fact No. 20 and Conclusion of Law
No. 3, complained of by City of Greensboro on said pages,
but affirmed by the Court of Appeals, read as follows (See
pages 71, 76 of Appellants' Statement as to Jurisdiction.):
Finding of Fact No. 20: "On the 15th day of February,
1940, the defendant City of Greensboro and the defendant
Greensboro City Board of Education entered into an agree
ment with the Government of the United States for the con
struction of a golf course on land, part of which was owned by
the City of Greensboro and part by the Greensboro City Board
6
of Education, under which agreement the United States Gov
ernment provided 65% of the cost of constructing said golf
course. That in order to induce the United States Government
to provide 65% of the cost, the defendants City of Greens
boro and Greensboro City Board of Education agreed with the
United States Government that (1) this golf course was 'for
the use or benefit of the public.' (2) that the City of Greens
boro would maintain and operate said golf course for the use
and benefit of the public during the useful life of said golf
course and (3) that said golf course would not 'be leased,
sold, donated, or otherwise disposed of to a private individual
or corporation, or quasi-public corporation, during the useful
life of' said golf course. Said golf course became known as
the Gillespie Park Golf Course and is the golf course involved
in this action."
Conclusion of Law No. 3: "The said agreement between
the City of Greensboro, the Greensboro City Board of Educa
tion, and the United States Government imposed a duty upon
the defendants in this case to maintain and operate the Gil
lespie Park Golf Course during its useful life fo r the benefit of
public, including the Negro public, and that duty could not be
voided by the execution of the leases involved in this case."
The Greensboro City Board of Education leased its in
terests to the City of Greensboro, and from the time the golf
course was first opened until 1949 the City operated it ex
clusively for white citizens. (See Appendix 1 (a), Page 80, and
Fact No. 2 infra, Page 13.)
When Negro citizens of Greensboro in 1949 became insis
tent upon their right to use the golf course, they were formally
denied such right by resolutions of the Greensboro City Parks
and Recreation Commission and the Greensboro City Council.
(See infra, Page 61.) Thereupon, the Chairman of the City
Parks and Recreation Commission, John R. Hughes, became
the chief promoter of the organization of Gillespie Park Golf
Club, Inc., and the prime negotiator of leases of the golf course
from appellee's agencies, City of Greensboro and Greensboro
City Board of Education to Gillespie Park Golf Club, Inc.
(See infra, Page 62.) When City of Greensboro finally termi-
7
noted the leases, the City Council passed a resolution which
recited: "Whereas, The Gillespie Park Golf Club, Inc., was
created a non-profit, non-stock corporation and no person,
other than the City, has invested any funds in the corporation
or in the Golf Course and its equipment, and the Golf Club
has operated solely on funds derived from the use of the Golf
Course." (See Appendix 2 (g), Page 89.)
Subsequent to the making of the leases, the City of
Greensboro built nine additional holes to the golf course,
"which it had reserved the right to do under the lease," (See
Appendix 1 (a), Page 80.) Apparently in an effort to comply
with the "separate but equal" doctrine, the city built the 9-hole
Nocho Park Golf Course for Negroes. (See Fact No. 3 infra,
Page 13.)
On December 7, 1955, appellants sought permission to
play Gillespie Park Golf Course by paying greens fees, as
others were allowed, but were denied on the ground that " it
was a private club for members and invited guests only" (R 44).
Appellants placed the greens fees on the table and played
without permission of the Assistant Golf Pro in charge. (See
Facts No. 8 and No. 7 infra, Page 14.)
Appellants' conduct was entirely peaceful.—-See testimony
of State's witnesses: Deputy Sheriff Darby (R 49), Assistant Golf
Pro Bass (R 43), and Golf Pro Edwards (R 45). Appellants were
arrested upon warrants in Greensboro Municipal-County Court,
charging criminal trespass under said statute, GS 14-134.
The warrants alleged a trespass upon property of "G ille s
pie Park Golf Course." Appellants were tried and convicted.
Upon appeal to and trial de novo in the Superior Court of
Guilford County, the proof showed the name of the corpora
tion to be "Gillespie Park Golf Club, Inc.," instead of as set out
in the warrants, and amendment of the warrants accordingly
was allowed by the trial court. Appellants were convicted and
sentenced to 30 days in jail.
On appeal, the Supreme Court of North Carolina on its
own motion found a "fatal variance" between the name of the
corporation as alleged in the warrants and the name as shown
8
in the proof and amended warrants. Judgment was for this
reason arrested by the State Supreme Court. 246 NC 518.
While the case upon the first set of warrants was pending
on appeal in the Supreme Court of North Carolina, appellants
brought suit in the United States District Court for the Middle
District of North Carolina against appellee's agencies, City of
Greensboro, Greensboro City Board of Education, and Gilles
pie Park Golf Club, Inc. (Civil Case No. 1058), seeking a dec
laration of the rights of the parties under the Federal Constitu
tion with regard to the acts of appellants in playing golf on
said golf course, for which they had been convicted and sen
tenced in the State court. (See Motion to Quash, R 32-33, and
the Motion to Set Aside the Verdict, R 92)
After trial of the issues appellants prevailed, and the
Federal District Court filed its Opinion, Findings of Fact, Con
clusions of Law, and Declaratory Judgment, (See Pages 67-79,
appellants' Statement as to Jurisdiction), which Judgment de
clared that appellee's said agencies had " . . . unlawfully de
nied the plaintiffs as residents of the City of Greensboro, North
Carolina, the privileges of using the Gillespie Park Golf Course,
and that this was done solely because of the race and color of
the plaintiffs, and constitutes a denial of their constitutional
rights . . (R 92) The Opinion of the Federal District Court is
reported in Simkins et al. v City of Greensboro et al., 149 Fed
Supp 562. The Court of Appeals for the Fourth Circuit affirmed
in City of Greensboro et al. v Simkins et al., 246 Fed 2d 425.
Certiorari was not sought in this Court.
After said affirmance by the Court of Appeals, appellee
State caused indictments to be issued against appellants in the
Superior Court of Guilford County, charging the same alleged
trespass for the same alleged acts of playing golf. (R 36-42)
When the indictments were called for trial on December 2,
1957, the appellee State took a Nol Pros with leave in all of
the indictments. (R 43)
On the same day, December 2, 1957, appellee State
caused appellants to be arrested upon a second set of warrants
in the Greensboro Municipal-County Court, charging the same
alleged trespass for the same acts of playing golf. (R 2-25)
9
These are the warrants upon which the appellants stand
convicted and sentenced to 15 days in jail in this case.
Four of the warrants (R 2, 7, 10, 14) alleged the name of
corporation to be "Gillespie Park Club, Inc./' and only two of
the warrants (R 18, 22) alleged the name to be "Gillespie Park
Golf Club, Inc." But this "fatal variance" which the Supreme
Court of North Carolina noticed of its own motion in its first
opinion (246 NC 518), was not noticed at all in the State Su
preme Court's opinion directly involved on this appeal. (107-
118)
In apt time appellants filed in the Municipal-County Court
a Motion to Quash the warrants, alleging that they were
"Negro citizens of Greensboro," and "that GS 14-134 is here
by being unconstitutionally applied to these defendants on the
following grounds/'—setting out at some length appellants' con
tentions of violations of their rights under the Supremacy
Clause and the 14th Amendment of the Constitution of the
United States. (R 32-36) The motion was denied and appellants
were tried and convicted. (See R 108)
Upon appeal to and trial de novo in the Superior Court
of Guilford County, appellants in apt time renewed their
Motion to Quash, which was denied. (See R 108)
During their voir dire examinations, those members of the
Jury who had played on Gillespie Park Golf Course "stated
very frankly and freely in open court that they had played on
this course without any requirements except the payment of
greens fees." (R 93)
During the trial appellants sought on cross-examination of
appellee's witnesses to show the practice of racial discrimina
tion against Negroes in the operation of Gillespie Park Golf
Course, but appellee State's objection was sustained to this
type of question "as being immaterial." (R 45, 48)
Although John R. Hughes, President of Gillespie Park
Golf Club, Inc., was present in court, appellee State rested its
case without calling him as a witness. (R 50) When appellants
sought to call him as an adverse witness, this request was de
nied. (R 72) Appellants then put the witness Hughes on the
10
stand and sought to prove his testimony before the United
States District Court for the Middle District of North Carolina
in the Simkins Case, supra. But Mr. Hughes said: " I did not
testify for my association in the case of Simkins and others
against City of Greensboro, Board of Education and Gillespie
Park Golf Club, Inc."
Then counsel for appellants in the trial court said: "Q . Mr.
Hughes, I hold in my hand a document purporting to be a
transcript of the testimony in the case." (R 78) The objection of
appellee State was sustained, and the mouth of the president
of appellee's agency, whose employees were the prosecuting
witnesses in this case, was closed against the truth which was
elicited from him in the Federal District Court. That was in the
presence of the Jury.
When the Jury had retired, the following took place, as
appears on Page 79 of the Record:
"In the Absence of the Jury, Mr. John R. Hughes made the
following statement to the Court:
"M r. Hughes: If your Honor please, I would like to ask the
Reporter to read the question and answer which I gave in my
testimony, so that we may get the record straight.
"Question Read by Reporter as follows: 'Mr. Hughes, did
you testify for your Association in the case of Simkins and
others against the City of Greensboro, Board of Education, and
Gillespie Park Golf Club, Inc.?'
"M r. Hughes: In order that there may be no misunder
standing, I did testify in that case, but I was called as an ad
verse witness for the plaintiffs.
"Court: Do you wish to call Mr. Hughes back to the
stand?
’"M r. Marsh: No, your Honor."
Appellants were found guilty. Before they were sentenced
1 Under Napue v Illino is,___US___ 3 L ed 2d 1217, 1221____ S Ct___
it would appear that appellee's Solicitor in charge of the prosecution
had '"the responsibility and duty to correct'" the wrong impression which
the witness Hughes had given to the Jury.
11
appellants filed a Motion to Set Aside the Verdict (R 91-97), by
reference making certain allegations of the Motion to Quash
a part of the Motion to Set Aside the Verdict (R 91), including
the allegation (R 32) "that GS 14-134 is hereby being uncon
stitutionally applied to these defendants," for the reasons
under the Supremacy Clause and the 14th Amendment set out
in the Motion to Quash.
Appellants also set out verbatim in the Motion to Set
Aside the Verdict the Declaratory Judgment and Findings of
Fact No. 33 and No. 30 of the Federal District Court in the
Simkins Case, supra, (R 82, 94, 95-96), and in some detail
alleged violations of the Supremacy Clause and the 14th
Amendment under the facts and circumstances of the case. The
Motion to Set Aside the Verdict was denied. (R 97) On appeal
the Supreme Court of North Carolina upheld the trial court's
denial of the Motion to Quash (R 110) and of the Motion to
Set Aside the Verdict (R 118), and found "N o E rro r" in any of
the actions of the trial court. (R 118)
With reference to the Federal Court proceedings in the
Simkins Case, the Supreme Court of North Carolina said in its
Opinion in this case: "O ur knowledge of the facts in that case
is limited to what appears in the published opinion." (R 115)
2Pertinent "Facts" in said "published Opinion" follow, being
numbered for identification:
2The consideration which this Court gives to "facts" set out in the
Opinion of a United States District Court is indicated by the following
quotation from the case of Bibb v Navajo Freight Lines,___ US____, 3
L ed 2d 1003, 1007,___ S Ct___ :
"Illin o is introduced evidence seeking to establish that
contour mudguards had a decided safety factor in that they
prevented the throwing of debris into the faces of drivers of
passing cars and into the windshields of a following vehicle.
But the District Court in its opinion stated that it was 'con
clusively shown that the contour mud flap possesses no ad
vantages over the conventional or straight mud flap previously
required in Illino is and presently required in most of the states,'
(159 F Supp., at 388) and that 'there is rather convincing
testimony that use of the contour flap creates hazards pre
viously unknown to those using the highways.' Id. 159 F Supp
at 390 ." (Emphasis added.)
12
"Facts" in Federal District Court's Opinion
Fact No. 1—"The City of Greensboro and the Greensboro
City Board of Education concede that they cannot own and
operate the Gillespie Park Golf Course for the public and ex
clude the plaintiffs and other Negro citizens of Greensboro
from these privileges on account of their color." (149 Fed Supp
563).
Fact No. 2—"Although the golf course has been available
to the public for many years, whether by design or otherwise,
Negroes have been denied the enjoyment of the privilege."
(149 Fed Supp 563).
Fact No. 3—"The City of Greensboro, before Brown v
Board of Education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 256,
in an effort to comply with Plessy v. Ferguson, 163 U. S. 537,
16 S. Ct. 1138, 41 L. Ed. 256, erected in the City of Greens
boro a nine hole golf course for Negroes, known as Nocho
Park Golf Course, but it cannot be deemed the equivalent of
an 18 hole golf course like Gillespie Park course which was
restricted to white people." (149 Fed Supp 563).
Fact No. 4—"The Board of Education leased the land it
did not need for school purposes at the time to the City of
Greensboro. Through Works Progress Administration, which
furnished 65% of the cost, the City of Greensboro built the
last nine holes and agreed not to sell or lease for private use
this public property during its life of usefulness." (149 Fed
Supp 563).
Fact No. 5—"Some of the Negro citizens applied to the
City authorities for permission to play on the Gillespie Park
Course in 1949 and, because of opposition on the part of local
citizens against Negroes playing on the course, after some
negotiation, the City of Greensboro and City Board of Educa
tion entered into a lease contract whereby the entire golf
course was leased to Gillespie Park Golf Club, a non-profit
corporation which was organized solely fo r the purpose of tak
ing the lease and maintaining and operating the course as a
public golf course. G.S. N.C. Sec. 55-11." (149 Fed Supp 563)
Fact No. 6—"It is true the directors met with a quorum at
13
first and fixed $60 for annual membership which permitted
them to play without paying additional fees; also authorized
$1 membership who would pay $1.25 greens fees on holidays
and week-ends, and 750 on other days." (149 Fed Supp 563)
Fact No. 7—"The records of the corporation do not dis
close sufficient data to show if rules were really established
and enforced in respect to membership. The evidence does
clearly show that white people were allowed to play by paying
the greens fees without any questions and without being mem
bers. When Negroes asked to play, they were told they would
have to be members before they could play and it clearly
appears that there was no intention of permitting a Negro to
be a member or to allow him to play, solely because of his
being a Negro." (149 Fed Supp 563)
Fact No. 8—"The six plaintiffs presented themselves at the
desk of the man in charge of the golf course and laid down
750 each and asked to play, the first named plaintiff being a
dentist practicing his profession in Greensboro. But they were
not given permission to play. They insisted on their right to
play and played three holes. While playing the third hole, the
manager came and ordered them to leave and they refused to
go unless an officer arrested them. Whereupon the manager
swore out a warrant charging each with trespass upon which
they were tried, convicted and sentenced to 30 days in jail,
the statutory limit, from which an appeal is pending in the
Supreme Court of North Carolina." (149 Fed Supp 563).
Fact No. 9—"The Negroes have not only been denied the
privilege of the golf course but there is no intention on the part
of the defendants to permit them to do so unless they are com
pelled by order of court." (149 Fed Supp 563).
Fact No. 10—"The brief filed by the City of Greensboro
contains this significant statement in its statement of facts: 'In
December, 1955, six of ten plaintiffs in this action were denied
the use of Gillespie Park Golf Course by employees of Gilles
pie Park Golf Club, Inc. That same month the City Council in
structed the City Manager to proceed forthwith to receive bids
for the sale of Gillespie Park Course and upon such sale to
close the Nocho Park course. The land upon which the latter
14
is situated is to be used for governmental purposes and is not
to be soid/ The facts show that the city is still 'in the saddle'
so far as real control of the park is concerned and that the so-
called lease can be disregarded if and when the City decides
to do it. It also lends powerful weight to the inference that the
lease was resorted to in the first instance to evade the city's
duty not to discriminate against any of its citizens in the enjoy
ment in the use of the park." (149 Fed Supp 565).
Fact No. 11—"This golf club permits white people to play
without being members, or otherwise, except it requires the
prepayment of greens fees. The plaintiffs here paid their fees,
were forced off the course by being arrested for trespass.
Everybody knows this was done because the plaintiffs were
Negroes and for no other reason. This court cannot ignore it."
(149 Fed Supp 565).
Fact No. 12—"A decree will be entered declaring that
these plaintiffs have been denied on account of their color
equal privileges to use the golf course owned by the City
Board of Education and the City of Greensboro and operated
by the Gillespie Park Golf Club, and permanently restraining
the defendants from discriminating against plaintiffs and other
members of their race on account of color, so Song as the golf
course is owned by these agencies and operated for the
pleasure and health of the public, their agents, lessees, serv
ants and employees. The court invited counsel for the respec
tive parties to confer and to suggest to the court the best
practical way to make effective the decree, in the event the
plaintiffs prevailed. The final decree will be deferred a short
time to get the result of this conference." (149 Fed Supp 565).
Matters of Common or General Knowledge
There are some matters of common or general knowledge
in this case. They include the policy of racial exclusion of
Negroes from this golf course over the years of its operation,
as stated by Judge Hayes in Fact No. 2 and also in Fact No. 11,
supra, when he said of the exclusion of appellants: "Everybody
knows this was done because the plaintiffs [appellants here]
were Negroes and for no other reason. This court cannot ig
15
nore it." They also include the continued "in-the-saddle" con
nection with the golf course of appellee's State agency, City of
Greensboro, as stated by Judge Hayes in Fact No. 10, supra.
As substantiating matters of common or general knowl
edge pertinent to the issues involved in this case, appellants
attach hereto photographic reproductions of newspaper clip
pings, marked Appendixes 2 (a) to 2 (f) inclusive, and a photo
graphic reproduction of Page 190 of Minute Book No. 31 of
the Minutes of the City Council of the City of Greensboro,
North Carolina, marked Appendix 2 (g).
SUMMARY OF ARGUMENT
The following is a Summary of the Argument for appel
lants:
A. ON THE Q UESTIO N OF JURISDICTION
Appellants contend that Federal Questions involved were
raised in written Motions to Quash and to Set Aside the Ver
dict before the trial court; that appellee State did not answer
to deny or controvert any of the allegations of these Motions;
that under both State and Federal law these allegations should
have been taken as true; that the trial court denied these Mo
tions and this denial was sustained by the Supreme Court of
North Carolina.
Appellants contend that the Opinion of the Supreme
Court of North Carolina in this case shows that the Motions
which raised Federal Questions were denied on the merits, and
not on any ground of local procedure or practice. In this con
nection appellants contend that the Opinion of the Supreme
Court of North Carolina said in so many words that the State
Court was "considering the merits" of the case.
Appellants contend that, since Federal Questions were
raised in pleadings, under the decisions of this Court this
Court w ill decide for itself whether these Federal Questions
were well taken and this Court is not concluded by what the
State courts have decided with regard to these pleadings.
Appellants also contend that the North Carolina Supreme
16
Court's Opinion and judgment themselves deny to appellants
Federal constitutional rights, and that this denial could not be
called to the attention of the Supreme Court of North Carolina,
because no petition for rehearing is permitted in a criminal
case in that court.
Appellants contend that this Court has jurisdiction on ap
peal under 28 USC 1257 (2), because the written Motions be
fore the State courts alleged that the North Carolina criminal
trespass statute which is involved (GS 14-134), as construed
and applied in this case, violates the Supremacy Clause and
the 14th Amendment of the Constitution of the United States,
and that the decisions of the State courts were necessarily in
favor of the validity of this criminal trespass statute as con
strued and applied in this case.
Appellants contend that this Court has jurisdiction (1) to
examine the record to determine for itself whether racial dis
crimination in the use of the public golf course involved is
shown within the meaning of the decisions of this Court; (2) to
determine whether the record shows a denial of equal protec
tion without regard to racial discrimination,- (3) to determine
whether the fundamental fairness required by the Due Process
Clause has been denied to appellants in the trial of this case,-
(4) to determine whether or not the State Supreme Court's
judgment violates the agreement made by the State's agencies
with the United States covering the use of this golf course, or
whether the policy of the State law and the State court's
judgment collide with Federal law and regulations concerning
this golf course,- (5) to protect and effectuate the Declaratory
Judgment of the Federal Courts with regard to this golf course.
Appellants also point to the sim ilarity between the instant
case on the Question of Jurisdiction on appeal and certain
recent decisions of this Court taking jurisdiction on appeal.
However, appellants have prayed that, if they should be
mistaken in their belief that this Court has jurisdiction on ap
peal under 28 USC 1257 (2), that then the appeal papers be
treated as a Petition for Certiorari and that such Petition be
granted under 28 USC 2103.
17
B. ON TH E M ERITS
(1) Under the Supremacy Clause:
Appellants contend that the State's criminal trespass sta
tute (GS 14-134), as applied in this case, and the State Su
preme Court's judgment enforcing said statute violate the Su
premacy Clause in three particulars:
(a) They implement a policy which made Gillespie Park
Golf Course "a private club for members and invited guests
only," directly in conflict with an applicable Federal statute
and its supporting regulations which require that this golf
course "offer the greatest degree of public usefulness."
(b) They implement a policy violating an agreement by
the State's agencies with the United States that this golf
course would be operated for the benefit of the public and
would not "be leased, sold, donated, or otherwise disposed of
to a private individual or corporation, or quasi-public corpora
tion" during the useful life of said golf course.
(c) They implement a policy directly in conflict with a
Federal District Court's Declaratory Judgment in Simkins et
al. v City of Greensboro et al., 149 Fed Supp 562, as affirmed
by the Court of Appeals for the Fourth Circuit.
(2) Under the Fourteenth Amendment:
(a) Denial of Equal Protection.
Appellants contend that they have been denied the equal
protection of the laws in this case because (1) They were de
nied the use of Gillespie Park Golf Course because of race or
color, and (2) The record shows a denial of equal protection
because of a "lack of standards" in the permission-granting
authority for use of the golf course.
(b) Denial of Due Process of Law.
Appellants contend that they have been denied due proc
ess of law in this case in that (1) In the trial of this case the
State closed the mouths of certain key witnesses to the truth,
so that evidence material to appellants' defense was suppres
sed by the State's rules of evidence. (2) The Supreme Court
18
of North Carolina in this case for the first time held the crimi
nal trespass statute applied to the public lands of this golf
course, and not just to lands "privately held," as the State Su
preme Court had theretofore always held, and that appellants
therefore could not know "with reasonable certainty" that
they were violating this statute by playing on this public golf
course. (3) In this case three original, successive criminal pro
ceedings have been prosecuted by the State against appellants
in such a way as to amount to fundamental unfairness as for
bidden by the Due Process Clause of the 14th Amendment.
C. TH E Q UESTIO N OF JUDICIAL NOTICE
Appellants treat the question of Judicial Notice separately
because, insofar as this question may become important in this
case, appellants believe that it may cut across both the Ques
tion of Jurisdiction and The Case on the Merits.
Appellants take the position that the decisions of this
Court on the Question of Judicial Notice, as well as the reason
able bases of judicial notice, would require that judicial notice
be taken of any necessary documents or facts which were not
before the State courts as a matter of uncontroverted pleading
or otherwise.
ARGUMENT I
The Question of Jurisdiction
(a) Raising of Federal Questions Below—
The Federal questions were first raised by appellants in
the trial court by a Motion to Quash the warrants (R 32), and
then by a Motion to Set Aside the Verdict (R 91), the latter in
corporating certain allegations of the former by reference.
In both motions it was alleged that the North Carolina
criminal trespass statute (GS 14-134), under which appellants
stand convicted, was "being unconstitutionally applied" to ap
pellants in that, among other things:
"The State of North Carolina in this prosecution is, con
trary to the Supremacy Clause of the United States Constitu
19
tion, attempting to make a crime out of specific acts and,con
duct which both the United States District Court for the Middle
District of North Carolina and the United States Court of Ap
peals for the Fourth Circuit have specifically held to be pro
tected by the Fourteenth Amendment to the Constitution of the
United States." (R 32, 92)
Both motions also alleged:
"To permit this prosecution to proceed would be in effect
to nullify and render ineffectual the judgment and decree of
the United States Courts, contrary to the Supremacy Clause of
the United States Constitution and such prosecution would
violate the rights of these defendants and laws of the United
States, including the Fourteenth Amendment." (R 34, 92)
Both motions further alleged:
"Based upon the specific facts and conduct alleged by
the State to be a crime in this case, these defendants brought
Civil Action No. 1058 in the United States District Court for
the Middle District of North Carolina, praying for a declara
tory judgment and a decree enjoining the prosecution witnes-
es and the city of Greensboro and the Greensboro City Board
of Education from interfering with the defendants and all other
Negroes similarly situated from playing golf on the Gillespie
Park Golf Course.
"A full hearing was held before United States District
Judge Johnson J. Hayes, who on April 24, 1957, found specif
ically that the prosecuting witnesses and the City of Greens
boro had refused to permit these defendants to play golf
'primarily because of their color' (Finding of Fact No. 33), and
concluded as a matter of law that these defendants 'and other
Negroes similarly situated cannot be denied on account of
race, the equal privileges to the park, notwithstanding the
lease.' " (R 33, 92)
Both motions further alleged:
"These defendants have subpoenaed the Clerk of the
United States District Court for the Middle District of North
Carolina to bring to this trial the full record and judgment roll
20
in said case and respectfully request an opportunity to offer
this evidence upon the hearing of this motion.
"Defendants respectfully urge the Court to receive and
consider the record and judgment roll in the Federal case and
after such consideration to estop the State and the prosecuting
witnesses from proceeding further with this prosecution." (R
33, 92)
Both motions alleged the former trial upon the first set of
warrants and the indictments in the Superior Court, and al
leged that the trial upon the second set of warrants amounted
to double jeopardy in violation of the Federal Constitution.
(R 34-35, 92)
The Motion to Set Aside the Verdict alleged:
"That the Supremacy Clause (Article VI) of the Constitu
tion of the United States requires this Court to give effect to
and to enforce the judgments of the United States Courts cover
ing the subject matter of this prosecution, particularly the
'Decree and Injunction' of the United States District Court for
the Middle District of North Carolina, in Civil Case No. 1058,
in which these defendants were plaintiffs and Gillespie Park
Golf Club, Inc., was one of the defendants, covering the identi
cal acts and conduct charged by the State to be a crime of
trespass in this case, said 'Decree and Injunction' reading in
part as follows:
" 'It is now ordered, adjudged and decreed that defend
ants HAVE UNLAW FULLY DENIED THE PLAINTIFFS as residents
of the City of Greensboro, North Carolina, the privileges of
using the Gillespie Park Golf Course, AND TH A T TH IS W A S
DONE SOLELY BECAUSE OF TH E RACE AND COLOR OF THE
PLAINTIFFS, and constitutes a denial of their constitutional
rights, and unless restrained will continue to deny plaintiffs and
others similiarly situated.' (Emphasis added.)
"That the State of North Carolina and its jury in this case
undertake to find to be criminal the identical acts and con
duct whch said 'Decree and Injunction' holds to be protected
by the Constitution of the United States, and further undertake
to find to have been lawfully done, that which said 'Decree
21
and Injunction' holds was 'unlawfully' done, and that to permit
said verdict to stand and to punish these defendants on the
basis of said verdict would nullify and render ineffectual the
rights of these defendants which said 'decree and injunction'
holds to be guaranteed and protected by the Constitution and
laws of the United States, including the due process and equal
protection clauses of the 14th Amendment." (R 92)
Said Motion to Set Aside the Verdict quoted Fact No.. 11,
supra, page 15, from the Opinion of Judge Hayes, and follow
ed with this request of the trial Court:
"Defendants respectfully request this Court to take judicial
notice of this matter of common knowledge pertaining to this
public golf course owned and operated by their agency by the
City of Greensboro and the Greensboro City Board of Educa
tion. That this matter of common knowledge about the Gilles
pie Park Golf Course was spoken truly and not idly by Judge
Hayes when he wrote that 'everybody knows' it, was shown by
Jurors in this case in their answers to questions touching their
qualifications. Those who had played on Gillespie Park Golf
Course stated very frankly and freely in open court that they
had played on this course without any requirements except the
payment of greens fees. Defendants respectfully suggest that,
if any confirmation of Judge Hayes' statement that this was
common knowledge which 'everybody knows' is necessary it
is found in these statements of the Jurors in this case." (R 93)
The Motion to Set Aside the Verdict also alleged:
"Defendants respectfully suggest to the Court that to per
mit this verdict to stand under these circumstances would vio
late the rights of these defendants under the Constitution and
laws of the United States, including the due process and equal
protection clauses of the 14th Amendment." (R 93)
The Motion to Set Aside the Verdict also alleged:
"That said 'Decree and Injunction' of the United States
District Court for the Middle District of North Carolina begins
as follows: 'This cause coming on for hearing and the Court
having heard the evidence and argument of counsel and care
fully considered the same and the briefs filed, and having
22
made the findings of fact and conclusions of law which appear
of record/
"Defendants respectfully suggest to the Court that this
reference in said 'Decree and Injunction' to the findings of
fact and conclusions of law which appear of record makes
them a part of the 'Decree and Injunction' just as if written
out therein in fu ll; and for this reason and also because said
findings of fact and conclusions of law are a part of the record
and judgment roll in said case in the United States District
Court fo r the Middle District of North Carolina covering the
identical acts and conduct which said verdict seeks to make a
crime, the Supremacy Clause of the Constitution of the United
States lays a duty upon this Court to respect and give effect
to said findings of fact and conclusions of law, and especially
to Finding of Fact 33, which reads as follows:
" 'White citizens of Greensboro are given the privilege of
becoming permanent members by paying $60.00 per year
without greens fees and others not permanent members by pay
ing $1.00 per year and greens fees of $.75, except on holidays
and weekends, when it is more. On days other than holidays
and weekends when greens fees are $1.25 white citizens are
permitted to play without being members by paying the fees
above set forth and without paying the extra $1.00 and without
any questions being put to them. When the plaintiffs applied
to be given the same privilege they were refused on the
ground that they were not members but primarily because of
their color. Plaintiffs laid the greens fees on the table in the
club house, went out to play and after they had gotten to the
3rd hole the 'pro' in charge of the golf course ordered them
off and they insisted they had a right to play and would not
get off unless they were arrested by an officer, whereupon the
'pro' had them arrested and they were tried and convicted and
sentenced to imprisonment for a period of 30 days, which is the
maximum under the law for the State of North Carolina for
trespassing.'" (R 93-94)
The Motion to Set Aside the Verdict also alleged:
"That the evidence in this case and the instructions of the
Court to the Jury show that the land on which Gillespie Park
23
Golf Course is situated is public and not private property,
whereas GS 14-134, which is the North Carolina statute under
which the warrants were drawn in this case, is meant to cover
private property and not public property." (R 95)
"Defendants respectfully suggest to the Court that this
statute was never intended to apply to public lands or public
property, but was and is intended to apply solely and only to
private property, and that the lands and property and the pos
session alleged to have been invaded in this case was public
lands and property and the possession of an agency of the
City of Greensboro and the Greensboro City Board of Educa
tion, which held the title to said lands and property. In this
connection defendants respectfully call the Court's attention
to Finding of Fact No. 30 in said case in the United States
District Court for the Middle District of North Carolina:
" 'That the leases in this case undertook to turn over to a
corporation having no assets or income highly valuable in
come-producing property belonging to the City and the school
board, the chief officer and promoter of said corporation be
ing an official of the city, and the city having no prospect of
getting anything from said leases except out of the income
which the leased property was already bringing in, and with
the City reserving the right to put into the property further in
vestments from other sources than said income and that under
these circumstances said corporation was in fact an agency of
the City and the school board for the continued maintenance
and operation of the golf course for the convenience of the
citizens of Greensboro.' " (R 95-96)
The Motion to Set Aside the Verdict also alleged:
"Defendants further suggest to the Court that as citizens
and taxpayers of the City of Greensboro, these defendants
along with all other such citizens and taxpayers did have a
license to go upon said lands upon which said Golf Course
was situated, and that there is no evidence whatsoever in this
case that these defendants were 'without a license' to go upon
or to remain upon said lands, and that the absence of such a
license is an indispensable ingredient of the trespass establish
ed by GS 14-134." (R 96)
24
THE APPELLEE STA TE DID NO T ANSW ER OR DENY OR
CONTROVERT THE MOTION TO QUASH OR THE MOTION
TO SET ASIDE THE VERDICT, OR ANY OF THE ALLEGATIONS
CONTAINED IN EITHER MOTION.
The rule of pleading in North Carolina, both by statute
and also by decisions, is that where the allegations of a plead
ing are not answered or denied, the facts alleged must be
taken as true. GS 1-159. Bonham v Craig, 80 NC 224, 227.
Immediately after Section 1-159 of the official edition of
the General Statutes of North Carolina (1953) is the follow
ing: "Editor's Note.—The rule established by this section dis
posed of the necessity of submitting to the jury matters which
the law deems as admitted in the absence of denial."
The same rule applies in the decisions of this Court as to
allegations concerning Federal rights, which are not answered
or denied. Tomkins v Missouri, 323 US 485, 89 L ed 407, 65 S
Ct 370.
(b) Actions of Courts Below on Motions to Quash and to
Set Aside the Verdict—
The trial Court denied the Motion to Quash, the North
Carolina Supreme Court putting it this way: "Before pleading
to the merits in the Superior Court, defendants renewed their
motions to quash as originally made in the Municipal-County
Court. The motions made in apt time were overruled by the
court." (R 108)
In sustaining this action of the trial Court, the Supreme
Court of North Carolina said: "Since none of the reasons nor
all combined sufficed to sustain the motion to quash, the court
correctly overruled the motion and put defendants on trial for
the offense with which they were charged." (R 110)—(Emphasis
added.) It is clear to appellants that since the allegations of
the Motion to Quash were not answered or denied and thus
must be taken as true, the decision of the North Carolina Su
preme Court amounts to a holding that the motion did not
contain allegations sufficient to constitute a defense, under the
Constitution and laws of the United States, to the criminal tres
pass prosecution.
25
As to the Motion to Set Aside the Verdict, this too was
denied by the trial Court (R 97), and in sustaining this action
the Supreme Court of North Carolina said: "Defendants were
not, as a matter of right, entitled to have the verdict set aside."
(R 118) Since the allegations of the Motion to Set Aside the
Verdict were not answered or denied, it is likewise clear to
appellants that this action of the North Carolina Supreme
Court amounts to a holding that the motion did not contain
allegations sufficient to constitute a defense, under the Consti
tution and laws of the United States, to the criminal trespass
prosecution.
With regard to the question of Double Jeopardy, the Su
preme Court of North Carolina said: " It is manifest there is
here no double jeopardy." Appellants believe that this is a
clear decision of this question on the merits.
(c) Decisions of this Court Regarding Federal Questions
Raised in Pleadings—
The general rule was restated in the case of Staub v City
of Baxley, 355 US 313, 318, 2 L ed 2d 302, 309, 78 S Ct 277:
'"Whether a pleading sets up a sufficient right of action
or defense, grounded on the Constitution or a law of the
United States, is necessarily a question of federal law;
and where a case coming from a state court presents that
question, this Court must determine for itself the suffi
ciency of the allegations displaying the right or defense,
and is not concluded by the view taken of them by the
state court.' First Nat. Bank v Anderson, 269 US 341, 346,
70 L ed 295, 302, 46 S Ct 135, and cases cited. See also
Schuylkill Trust Co. v Pennsylvania, 296 US 113, 122, 123,
80 L ed 91, 98, 56 S Ct 31, and Lovell v G riffin, 303 US
444, 450, 82, L ed 949, 952, 58 S Ct 666. As Mr. Justice
Holmes said in Davis v Wechsler, 263 US 22, 24, 68 L
ed 143, 145, 44 S Ct 13, 'Whatever springes the State
may set for those who are endeavoring to assert rights
that the State confers, the assertion of federal rights,
when plainly and reasonably made, is not to be defeated
under the name of local practice.' Whether the constitu
tional rights asserted by the appellant were ' . . . given
26
due recognition by the [Court of Appeals] is a question as
to which the [appellant is] entitled to invoke our judg
ment, and this [she has] done in the appropriate way. It
therefore is within our province to inquire not only
whether the right was denied in express terms, but also
whether it was denied in substance and effect, as by put
ting forward non-federal grounds of decision that were
without any fa ir or substantial support . . . [for] if non-
federal grounds, plainly untenable, may be thus put fo r
ward successfully, our power to review easily may be
avoided/ Ward v Love County, 253 US 17, 22, 64 L ed
751, 758, 40 S Ct 419, and cases cited."
See also Allied Stores of Ohio v Bowers, ------US------ ,3 L ed
2d 480, 483, 79 S Ct 437, where it is stated that this principle
now " is settled."
In Brown v Western Railway of Alabama, 338 US 294,
295, 296, 94 L ed 100, 102, 103, 70 S Ct 105, a demurrer was
sustained to a complaint asserting Federal rights, and the
cause dismissed by the state courts. On certiorari, this Court
said of the conclusions of the Georgia Court of Appeals re
garding the complaint:
"The court reached the foregoing conclusions by follow
ing a Georgia rule of practice to construe pleading al
legations 'most strongly against the pleader.' "
" It is contended that this construction of the complaint
is binding on us. The argument is that while state courts
are without power to detract from 'substantive rights'
granted by Congress in FELA cases, they are free to fo l
low their own rules of 'practice' and 'procedure.' To what
extent rules of practice and procedure may themselves dig
into 'substantive rights' is a troublesome question at best
as is shown in the very case on which respondent relies.
Central Vermont R. Co. v. White, 238 US 507, 59 L ed
1433, 35 S Ct 865, Ann Cas 1916B 252, 9 NCCA 265.
Other cases in this Court point up the impossibility of lay
ing down a precise rule to distinguish 'substance' from
'procedure.' Fortunately, we need not attempt to do so.
A long series of cases previously decided, from which we
27
see no reason to depart, makes it our duty to construe
the allegations of this complaint ourselves in order to
determine whether petitioner has been denied a right of
trial granted him by Congress. This federal right cannot
be defeated by the forms of local practice . . . And we
cannot accept as final a state court's interpretation of al
legations in a complaint asserting it."
"Second. We hold that the allegations of the complaint
do set forth a cause of action which should not have been
dismissed."
(d) Jurisdiction to Examine th e Record to Determine
Whether or Not It Shows Racial Discrimination in This Case—
The appellee made quite a point in its Motion to Dismiss
that "The Question of Racial Discrimination in the Use of the
Golf Course Was Not Involved in This Case."
The jurisdiction of this Court to make such an examina
tion of the record in connection with appellants' assertion of
this Federal right seems to be well established. In Niemotko v
Maryland, 340 US 268, 271, 95 L ed 267, 270, 71 S Ct 325,
this Court said:
"In cases in which there is a claim of denial of rights
under the Federal Constitution, this Court is not bound by
the conclusions of lower courts, but will reexamine the
evidentiary basis on which those conclusions are found
ed."3
In Ashcraft v Tennessee, 322 US 143, 88 L ed 1192, 64 S
Ct 921, Headnote No. 1 in 88 L ed reads:
"Where the claim is made of denial of due process in a
state court by obtaining a conviction through use of a
Regarding this same quotation from Niemotko v Maryland, this
Court in Napue v Illinois, supra (3 L ed 2d at 1222), said that: " I t is now
so well settled that the Court was able to speak in Kern-Limerick, Inc. v
Scurlock, 347 US 110, 121, 98 L ed 546, 556, 74 S Ct 403, of the 'long
course of judicial construction which establishes as a principle that the
duty rests on this Court to decide for itself facts or constructions upon
which federal constitutional issues rest." (Emphasis added.)
28
confession procured by coercion, the Supreme Court of
the United States is bound to make an independent ex
amination of the record to determine the validity of the
claim, and the performance of this duty cannot be fore
closed by the finding of a court or the verdict of a jury,
or both." (Emphasis added.)
(e) Jurisdiction to Determine the Validity of the Criminal
Trespass Statute as Applied in This Case to Impose Criminal
Punishment upon Appellants for Exercising Their "Constitu
tional Rights" to Play Golf, as Upheld by the Federal Courts.
A sim ilar jurisdictional question arose in Marsh v Ala
bama, 326 US 501, 502, 90 L ed 265, 266, 66 S Ct 276. The
Court stated the question as follows:
"In this case we are asked to decide whether a State,
consistently with the First and Fourteenth Amendments,
can impose criminal punishment on a person who under
takes to distribute religious literature on the premises of
a company-owned town contrary to the wishes of the
town's management."
Th is Court continued (326 US 504): "Appellant con
tended that to construe the state statute as applicable to
her activities would abridge her right to freedom of press
and religion contrary to the First and Fourteenth Amend
ments to the Constitution. This contention was rejected
and she was convicted. The Alabama Court of Appeals
affirmed the conviction, holding that the statute as ap
plied was constitutional because the title to the sidewalk
was in the corporation and because the public use of the
sidewalk had not been such as to give rise to a presump
tion under Alabama law of its irrevocable dedication to
the public . . . The State Supreme Court denied certiorari
. . . and the case is here on appeal . . ."
The Marsh Case is particularly pertinent to this case, so
far as jurisdiction is concerned, because the state statute car
rying the criminal sanctions was a criminal trespass statute al
most identical with the statute which appellants allege to be
unconstitutional as applied in this case. This Court held that it
had jurisdiction "on appeal."
29
(f) Jurisdiction to Determine the Question of Equal Pro
tection in This Case Without Regard to the Question of Racial
Discrimination-
In the Niemotka case, supra, appellants were arrested for
using a public park without permission and convicted for
violating a disorderly conduct statute, which was challenged
by appellants as violating their constitutional rights. Despite
the jury's verdict of guilty and the rules of "practice" and "pro
cedure" as determined by the state courts, this Court held that
it had jurisdiction to review the Federal questions, saying: "Be
ing of opinion that the case presented substantial constitutional
issues, we noted probable jurisdiction, the appeal being prop
erly here under 28 USC 1257 (2)." (340 US 270)
(g) Jurisdiction to Determine the Question of Due Process
in This Case Concerning Appellants' Charges of "Fundamen
tal Unfairness"—
(1) Appellants submit that the question of "fundamental
unfairness" arises in connection with the testimony of the
witness, John R. Hughes, president of the Gillespie Park Golf
Club, Inc., and other witnesses. Th is is the witness who told the
Jury: " I did not testify for my association in the case of Sim-
kins and others against the City of Greensboro, Board of Ed
ucation and Gillespie Park Golf Club, Inc." (R 77), but who in
the absence of the jury asked and received permission to dic
tate this statement into the record: "In order that there may be
no misunderstanding, I did testify in that case, but I was call
ed as an adverse witness for the pla intiffs." (R 79)
In connection with the testimony of this very important
witness, these appellants believe that it is quite significant
that Federal Judge Hayes in the Simkins Case devoted several
Findings of Fact to the activities of this witness (See Pages 72-
74 of Statement as to Jurisdiction in this case.), one of which
Findings of Fact (No. 26), with regard to the negotiations by
which the leases were made to the golf corporation, said: " . . .
at all times involved in these negotiations, the said John R.
Hughes was Chairman of the Greensboro Parks and Recrea
tion Commission."
30
(2) Appellants respectfully suggest that in this case the
Supreme Court of North Carolina changed its long-standing
rule that the criminal trespass statute involved in this case
(GS 14-134) applied only to land "privately held," to hold that
it also applied to the public lands of Gillespie Park Golf
Course, and that this question is a substantial one and gives
this Court jurisdiction to determine whether or not the "reason
able certainty" which fundamental fairness requires of state
criminal statutes was present in this case, within the meaning
of such cases as Scull v Virginia, supra. Since no petition for
rehearing was permissible, this change could not be called to
the attention of the State Supreme Court.
(3) These claims are also made in regard to appellants'
allegations of double jeopardy through the multiple criminal
proceedings against them for the same alleged trespass upon
Gillespie Park Golf Course.
In Hoag v New Jersey, 356 US 464, 2 L ed 2d 913, 78 S
Ct 829, this Court held that it had jurisdiction on certiorari to
review the claim of double jeopardy, stating the genera! rule
to be with regard to multiple criminal proceedings: "The ques
tion in any given case is whether such a course has led to
fundamental unfairness." The Court also said: "The question is
whether this case involved an attempt 'to wear the accused out
by a multitude of cases with accumulated tria ls .'" (356 US 467)
On the question of fundamental unfairness in multiple
criminal proceedings, Mr. Justice Frankfurter, concurring in
Brock v North Carolina, 344 US 424, 429, 97 L ed 456, 460, 73
S Ct 349, said:
"A State falls short of its obligation when it callously
subjects an individual to successive retrials on a charge
on which he has been acquitted or prevents a trial from
proceeding to a termination in favor of the accused
merely in order to allow a prosecutor who has been in
competent or casual or even ineffective to see if he can
not do better a second time." (Emphasis added.)
All of these questions of unfairness with regard to the
multiple criminal proceedings against these appellants for
31
playing golf on this public golf course are involved in this
case, and appellants believe that, under the rules announced
in the above cases, this Court has jurisdiction to hear them.
(h) Jurisdiction to Determine the Effect of the Agreement
Made by Appellee's State Agencies with the United States
Concerning Gillespie Park Golf Course-
Judge Hayes' Opinion in the Simkins Case, which the
North Carolina Supreme Court said was before the State
Courts, shows that Gillespie Park Golf Course was originally
built pursuant to an agreement between appellee State's agen
cies, City of Greensboro and Greensboro City Board of Educa
tion on the one hand, and the Government of the United
States on the other hand. (See Fact No. 4, supra).
(i) Jurisdiction to Protect or Effectuate Judgments of the
Federal Courts—
Under 28 USC 2283 the jurisdiction of Federal Courts to
"protect or effectuate" their judgments is not only recognized,
but that jurisdiction is recognized to the extent that it becomes
one of the rare cases meeting "the severe restrictions" of that
statute's limitations upon the jurisdiction of Courts of the United
States "to stay proceedings in a State court." See Leiter Min
erals, Inc. v United States, 352 US 220, 226, I L ed 2d 267,
273, 77 S Ct 287. Also Cf Capital Service, Inc. v National La
bor Relations Board, 347 US 501, 98 L ed 887, 74 S Ct 699.
That the United States District Court for the Middle District
of North Carolina and the Court of Appeals for the Fourth
Circuit would have jurisdiction by injunction to "protect or
effectuate" their judgment in the Simkins case would seem to
be clear. Bland Lumber Co. v National Labor Relations Board,
177 Fed 2d 555; Jacksonville Blow Pipe Co. v Reconstruction
Finance Corporation, 244 Fed 2d 394; Jackson v Carter Oil
Co., 179 Fed 2d 524. In Jacksonville Blow Pipe it was said
(244 Fed 2d at 400):
"Finally, viewing only the statute in the abstract, the
district court's action here appears to be clearly covered by
the authority 'to protect or effectuate its judgments,' since
all that is sought in the state litigation is to change the
32
manifest effect of the actions and orders of the court ap
pointed trustee, of the Referee, and of the court itself in
approving the Bill of Sale including the blow pipe sys
tem; nothing would be as productive of friction between
the state and the federal courts as to permit a state court
to interpret and perhaps to upset such a judgment of a
federal court."
State Court's Frustration of Federal Court's
Judgment at Little Rock Enjoined.
Appellants think Thomason v Cooper, 254 Fed 2d 808
in principle is practically on all-fours with the instant case. In
Thomason an Arkansas Chancery Court at Little Rock issued an
order "restraining the school board from requiring petition
er's child or any other white child from enrolling in and at
tending a school where both white and Negro children are
enrolled and from enrolling Negro children in schools subject
to the jurisdiction of Little Rock School Board which had been
maintained exclusively for white children." (See 254 Fed 2d at
809-810.)
The Court of Appeals for the Eighth Circuit quoted in full
28 USC 2283, which gives jurisdiction to and authorizes a Fed
eral Court to enjoin state court proceedings in order "to pro
tect or effectuate its judgments." Then, affirming the District
Court's order enjoining proceedings under the state court's in
junction, the Court of Appeals (254 Fed 2d at 810) said:
"Obviously, the decree of the state Chancery Court
was in direct conflict with the judgment and decree of the
federal District Court and of this Court affirming that
judgment and decree."
"The federal District Court was certainly not required
to permit the decree of the state court to frustrate the
judgment and decree of the federal court approving and
effectuating the plan of the School Board for the gradual
integration of the schools."
The only difference which appellants see between Thoma
son v Cooper and the instant case is that in Thomason a state
Chancery Court's injunction was used to attempt to frustrate
33
the judgment and decree of the Federal Courts, whereas in the
instant case a state criminal court's warrant is used for this
purpose.
The teaching of such cases as Angel v Bullington, 330 US
183, 91 L ed 832, 67 S Ct 657, as appellants believe, is that
this Court, being "a higher court . . . for an authoritative ad
judication of the federal questions involved," (330 US 187)
has the same jurisdiction with regard to the Federal questions
as a lower Federal Court would have, if the action had been
originally brought in the Federal Courts. Th is Court also said
(330 US 188, 189):
"Here, claims based on the United States Constitution
were plainly and reasonably made in the North Carolina
suit. The North Carolina Supreme Court met these claims.
It met them by saying that the North Carolina statute
did not deal with substantive matters but merely with
matters regulating local procedure. But whether the claims
are based on a federal right or are merely of local con
cern is itself a federal question on which this Court, and
not the Supreme Court of North Carolina, has the last
say. That Court could not put a federal claim aside, as
though it were not in litigation, by the talismanic word
'jurisdiction.' When an asserted federal right is denied,
the sufficiency of the grounds of denial is for this Court
to decide."
If was held that failure to seek to have the federal claims
reviewed by the Supreme Court of the United States after a
final judgment in the Supreme Court of North Carolina, made
the decision of the North Carolina Supreme Court conclusive
by res judicata of the federal claims and federal rights involv
ed, and that these federal claims and rights could not be as
serted by an original action in the Federal Courts. Appellants
believe that the clear implication of this is that this Court, in
reviewing Federal rights and claims asserted in the state
courts, has the jurisdiction and power to give all necessary re
lief to "protect or effectuate" those Federal rights and claims
which the lower Federal Courts would have had, if the action
had been originally commenced there.
34
Similarity to Frank v Maryland On Question of Jurisdiction
An examination of the Transcript of Record in Frank v
Maryland (Decided May 4, 1959), —US—, 3 L ed 2d 877,
79 S Ct 804, shows great sim ilarity with the instant case, so
far as the question of jurisdiction is concerned.
In Frank appellant was first tried upon a warrant charging
violation of a nuisance ordinance before a magistrate in Balti
more Police Court and, over challenge of the ordinance on
constitutional grounds, Frank was found guilty and fined
$20.00. On appeal to the Criminal Court of Baltimore and a
trial de novo, Frank was again found guilty and fined $20.00.
Appellant in Frank raised his constitutional objections to
the ordinance (Frank Record 27) by a "Motion to Dismiss"
(similar to the Motion to Quash in the instant case) on the
ground that the ordinance under which he was charged violat
ed the Constitution of Maryland and "the Fourth and Four
teenth Amendments to the Constitution of the United States."
The Motion to Dismiss in Frank was "Denied" without
opinion by the trial judge.
After all of the evidence was in, the appellant in Frank
(R 40) filed a "Motion for Verdict of 'Not Guilty' " (similar to
the Motion to Set Aside the Verdict in the instant case—which
is a proper pleading under North Carolina law, State v God
win, 5 Iredell 401, State v Best, 111 NC 638, 643, 15 SE 930),
setting out substantially the same constitutional grounds as in
the Motion to Dismiss.
The Motion for Verdict of "Not G uilty" in Frank was also
"Denied" without opinion by the trial judge.
The Court of Appeals of Maryland in Frank denied ap
pellant's "Petition for Certiorari to the Criminal Court of Balti
more" without opinion and without any docket entries (Frank
Record 43, 44.)
While the Supreme Court of North Carolina wrote an
opinion in the instant case, it sustained the actions of the trial
Judge in his denial without opinion of the Motion to Quash
and the Motion to Set Aside the Verdict, which raisedithe con
35
stitutional questions in the instant case much more extensively
than constitutional questions were raised in the Motion to Dis
miss and the Motion for Verdict of "Not G uilty" in the Frank
Case.
State Supreme Court Said it Was "Considering the Merits"
At the outset of its opinion in the instant case, the Su
preme Court of North Carolina said:
"Before pleading to the merits in the Superior Court,
defendants renewed their motions to quash as originally
made in the Municipal-County Court. The motions made
in apt time were overruled by the court.
"Before considering the merits of the cases, we must
ascertain if defendants were properly called upon to an
swer the criminal charges leveled against them. The mo
tions to quash assign three reasons why defendants should
not be called upon to answer the allegation that they vio
lated the criminal laws of the State of North Carolina.
"S . v Cooke, 246 NC 518, 98 SE 2d 885, is relied
upon for two of the reasons assigned. An examination of
that case is necessary to assay the merits of the motions."
(Emphasis added—R 108)
Of course, this Court is not bound by the statement of the
North Carolina Supreme Court that "the motions to quash as
sign three reasons why defendants should not be called upon
to answer the allegation that they violated the criminal laws
of the State of North Carolina." Under Staub v City of Baxley,
Allied Stores of Ohio v Bowers, and Brown v Western Railway
of Alabama, supra, "th is Court must determine for itse lf" what
the allegations and reasons were in the Motion to Quash and
their sufficiency to constitute a defense under the Federal Con
stitution and laws.
Similarity to Irvin v Dowd
The Supreme Court of North Carolina having written
that it was "considering the merits of the cases" and that it
was about "to assay the merits of the motions" to quash, ap
36
pel lee State's claim in its Motion to Dismiss that the Motion to
Quash and the Motion to Set Aside the Verdict were not de
cided upon their merits would seem to find no support in the
opinion of the Supreme Court of North Carolina.
But this claim of appellee does suggest a sim ilarity in this
connection between the instant case and Irvin v D ow d,----US
—,3 L ed 2d 900, 907, 79 S Ct 825, where this court said of an
opinion of the Indiana Supreme Court:
"The court's statement that its conclusion on the escape
point made it 'unnecessary' to consider the constitutional
claim was not a holding that the judgment was rested
on that ground. Rather, the court proceeded to deter
mine the merits 'because of the finality of the sentence'
and 'to satisfy ourselves that there is no miscarriage of
justice.' In this way, in our view, the State Supreme Court
discharged the obligation which rests upon 'the State
courts, equally with the courts of the Union, . . . to guard,
enforce, and protect every right granted or secured by
the Constitution of the United States . . .' Robb v Con
nolly, 111 US 624, 637, 28 L ed 542, 546, 4 S Ct 544."
(Emphasis added)
On Page 1 15 of the Record, the Supreme Court of North
Carolina said in its opinion: "Defendants moved to set aside
the verdict of guilty." There follow the rest of Page 115, all
of Pages 116 and 1 17, and almost half of Page 118, in which
the Supreme Court of North Carolina discusses the Motion to
Set Aside the Verdict, concluding with the sentence: "Defend
ants were not, as a matter of right, entitled to have the verdict
set aside."
Appellants believe that this is a clear approval on the
merits of the trial court's denial of the Motion to Set Aside
the Verdict.
Legal Meaning of Expression "The Merits"
The Supreme Court of North Carolina having spoken of
"the merits" in describing its disposition of the questions before
it, this expression should be understood to have been used
37
with its normal legal meaning and significance. Compare
Bel! v Hood, 327 US 678, 90 L ed 939, 66 S Ct 773, where
the meaning of the expression, "the merits," is discussed in
a jurisdictional setting, in connection with rulings on a plead
ing alleging rights claimed under the Constitution of the United
States.
Appellants respectfully suggest and believe that this Court
has jurisdiction to reach the merits of this case, either under
28 USC 1257 (2) or under 28 USC 2103.
ARGUMENT II
THE CASE ON THE MERITS
A. THE SUPREMACY CLAUSE Q UESTIO N S
(1) Does the State policy of making Gillespie Park Golf
Course "a private club for members and invited guests only"
(R 44, 75) collide unconstitutionally with the policy of Federal
law that this facility must provide "the greatest degree of
public usefulness"? (See Appendix 3-g, Page 94.) Is the State's
criminal trespass statute (GS 14-134) unconstitutional as ap
plied in this case, because it seeks to implement such a State
policy that is in direct conflict with Federal law?
When this golf course was first constructed, 6 5 % of
the cost came from Federal funds provided by the Emergency
Relief Appropriation Act of 1939, of June 30, 1939, 53 Stat
927, Chap 252. (See Fact No. 4, supra.) Section 1 1 (c) and
Section 14 of this Act provide the following:
"Sec. 11 . . . (c) No non-Federal project shall be under
taken or prosecuted under appropriations under this
joint resolution (except under section 4) unless and until
the sponsor has made a written agreement to finance
such part of the entire cost thereof as the head of the
agency, if the agency administers sponsored projects,
determines under the circumstances is an adequate con
tribution taking into consideration the financial ability
of the sponsor . . . "
38
"Sec. 14. Agencies receiving appropriations under this
joint resolution are authorized to prescribe such rules
and regulations as may be necessary to carry out the
purposes for which such appropriations are made."
Section 28 of the Act provides sanctions against "discrim
ination on account of race" and also against depriving "any
person of any of the benefits to which he may be entitled
under any such appropriations . . . "
Pursuant to said Section 14 the W. P. A. adopted the
Manual of Rules and Regulations, Federal Works Agency,
Work Projects Administration (Library of Congress Book Num
ber HD 3881 .A58.) Photographic reproductions of pages
from that Manual, pertinent to this case, are attached hereto
as Appendixes 3 (a) to 3 (i) inclusive. The following quota
tions are examples of the Federal policy that this golf course,
built with Federal funds, was to be fully public and not private:
"The W ork Projects Administration is charged with the
responsibility of providing work for needy persons on
useful public projects. It carries out this responsibility by
operating, or cooperating in the execution of, projects
sponsored by public bodies which are designed to provide
additional facilities, activities, or services of benefit to
the general public." (Emphasis added. See Appendix 3-g.)
"The W ork Projects Administration, in cooperation with
sponsors, is responsible for selecting projects for opera
tion which offer the greatest degree of public usefulness
consistent with the employment of certified workers in
the area." (Emphasis added. See Appendix 3-g.)
"The efficiency of WPA project operations and the use
fulness of completed facilities to the general public
are dependent upon the adequacy of plans and specifi
cations furnished by the project sponsor and the timely
fulfillment of obligations either assumed by the sponsor
or which the sponsor may reasonably be expected to
assume in view of the public benefit accruing to the
community. (Emphasis added.—Appendix 3-h, Page 95.)
"A sponsor of a W PA project must have legal authority
39
to engage in the work embraced by the project and in
the area covered. The sponsor shall further be responsi
ble for the continued public use or benefit of the facility
or service provided by the project sponsored." (Emphasis
added. See Appendix 3-i, Page 96.)
These rules and regulations, of course, have the force of
law. Lilly v Grand Trunk Western Railroad Company, 317 US
481, 488, 87 L ed 411, 416, 63 S Ct 347. In Ivanhoe Irriga
tion District et al. v McCracken, 357 US 275, 295, 2 L ed 2d
1313, 1327, 78 S C t 1174, it is said:
"Also beyond challenge is the power of the Federal
Government to impose reasonable conditions on the use
of federal funds, federal property, and federal privi
leges."
In Clearfield Trust Company v United States, 318 US
363, 366, 367, 87 L ed 838, 841, 63 S Ct 573, this Court said:
"When the United States disburses its funds or pays its
debts, it is exercising a constitutional function or power.
This check was issued for services performed under the
Federal Emergency Relief Act of . . . 1935, 49 Stat 115,
c 48. The authority to issue the check had its origin in
the Constitution and the statutes of the United States and
was in no way dependent on the laws of Pennsylvania or
any other state . . . The duties imposed upon the United
States and the rights acquired by it as a result of the
issuance find their roots in the same federal sources . . .
In absence of an applicable Act of Congress it is for the
federal courts to fashion the governing rule of law ac
cording to their own standards."
The State's Use of Its Criminal Sanctions to Enforce
State Policy in Conflict with Pertinent Federal Policy
In Miller v Arkansas, 352 US 187, 190, I L ed 2d 231,
233, 77 S Ct 257, a contractor bid upon work at an A ir Force
Base in Arkansas, the bid was accepted by the United States,
and the contractor began work on the project.
The State of Arkansas prosecuted the contractor "fo r
40
submitting a bid, executing a contract, and commencing work
as a contractor in the State of Arkansas without having ob
tained a license under Arkansas law . . . "
The contractor was found guilty and fined, and the trial
court's judgment was affirmed by the Supreme Court of
Arkansas.
On appeal to this Court the judgment was reversed be
cause of the "conflict between this license requirement which
Arkansas places on a federal contractor and the action which
Congress and the Department of Defense have taken to in
sure the reliability of persons and companies contracting with
the Federal Government."
Appellants respectfully suggest that likewise in the in
stant case there is a sim ilar conflict between the requirements
of North Carolina that persons seeking to play golf on G illes
pie Golf Course must meet the membership conditions of "a
private club" and the Federal law and policy that this golf
course, built with Federal funds pursuant to a Federal statute
and its authorized rules and regulations, must be operated
so as to "offer the greatest degree of public usefulness." (See
Appendix 3-g.)
In the Ivanhoe Case, supra, this Court said:
"Article VI of the Constitution, of course, forbids state
encroachment on the supremacy of federal legislative
action." (357 US at 295.)
(2) Can the State constitutionally avoid or vitiate the
agreement made with the United States by its agencies, City
of Greensboro and Greensboro City Board of Education, that
during its useful life this golf course would be operated "fo r
the use and benefit of the public" and would not "be leased,
sold, donated, or otherwise disposed of to a private individual
or corporation, or quasi-public corporation"? (See Fact No. 4,
supra) Is the State's criminal trespass statute (GS 14-134) un
constitutional as applied in this case, because it seeks to im
plement avoidance by the State's agencies of their agreement
with the United States that this golf course would thus be
operated?
41
It seems to be settled that "the paramount force of the
federal law remains even though it is expressed in the details
of a contract federal law empowers the parties to make, rather
than in terms in an enactment of Congress. See Railway Em
ployees' Dept. A. F. of L. v Hanson, 351 US 225, 232, 100 L
ed 1112, 1130, 76 S Ct 714." See Local 24 etc. v Oliver,
- U S - , 3 L ed 2d 312, 321, 79 S Ct 297.
In United States v County of Allegheny, 322 US 174, 183,
88 L ed 1209, 1217, 64 S Ct 908, this Court said:
"The validity and construction of contracts through
which the United States is exercising its constitutional
functions, their consequences on the rights and obliga
tions of the parties, the titles or liens which they create
or permit, all present questions of federal law not con
trolled by the law of any state."
That there was such an agreement as indicated in this
question No. (2) under the Supremacy Clause is clear from
the opinion of Judge Hayes which the State Supreme Court
said was before the State courts, and the facts appearing in
that opinion which the State Supreme Court said were known
to the State courts. (See Fact No. 4, supra.) Besides, since the
agreement was required by Federal law, it w ill be presumed
that the agreement was made. Southern Pacific Company v
Steward, 245 US 359, 362, 62 L ed 345, 38 S Ct 130.
It would be an anomaly, if flagrant violation of their
agreement with the United States by appellee State's agen
cies could be made the basis for prosecution and punishment
of citizens by the State for the exercise of rights vouchsafed
to the public by such agreement. In this connection the City
of Greensboro freely admitted in its brief before the Court of
Appeals for the Fourth Circuit (See Appendix I-a) that it
violated this agreement from the first day the golf course was
opened until 1949.
The Federal Agreement as Basis for Bona Fide Belief of a
Right to Play Golf on Gillespie Park Golf Course
Appellants believe that this agreement on the part of
42
appellee State's agencies with the United States gave to citi
zens as members of the public an absolute right to be free
from the membership requirements of "a private club" in
playing golf on this golf course. However, the Supreme Court
of North Carolina said in its opinion in this case (R 111)
that it was a sufficient defense to the crime of trespass "fo r
defendants to establish that they entered upon a bona fide
belief of a right to so enter, which belief had a reasonable
foundation in fact."
It would seem to appellants that this solemn agreement
by the State's agencies with the United States would provide
an unassailable basis for their "bona fide belief of a right"
to play golf on this golf course, as well as for an unquestion
able "reasonable foundation in fact" for such belief. Certainly,
it would seem unreasonable for the jury and the trial court to
find otherwise, especially since those jurors who had played
on this golf course, upon their voir dire examinations, "stated
very frankly and freely in open court that they had played
on this course without any requirements except the payment
of greens fees." (R 93)
This being an agreement with the United States, under
U. S. v County of Allegheny, supra, its effect to give appel
lants such "a bona fide belief of a right" to play golf on this
course presents a question of Federal law "not controlled by
the law of any state;" and under Ashcraft v Tennessee, supra,
the examination of this question by this Court "cannot be
foreclosed by the finding of a court or the verdict of a jury,
or both." See also Haley v Ohio, 332 US 596, 599, 92 L ed
224, 228, 68 S Ct 302.
Especially should this be true, appellants believe, in view
of the fact, set forth in Judge Hayes' opinion (See Fact No.
10, supra,) that "The brief filed by the City of Greensboro . . .
lends powerful weight to the inference that the lease was re
sorted to in the first instance to evade the City's duty not to
discriminate against any of its citizens in the enjoyment in the
use of the park."
(3) Can the State constitutionally make a crime out of
43
identical acts and conduct which the Federal Courts have held
to be protected by the Constitution of the United States, and
make lawful acts of the State's agencies which the Federal
Courts have held to have been "unlaw fully" committed
against the "constitutional rights" of the appellants? Is the
State's criminal trespass statute (GS 14-134) unconstitutional
as applied in this case, because it renders ineffectual the judg
ments of United States Courts?
In their Motion to Set Aside the Verdict the appellants
set out verbatim the Declaratory Judgment of the United
States District Court for the Middle District of North Carolina
in the following allegations (R 92):
"II. That the Supremacy Clause (Article VI) of the Con
stitution of the United States requires this Court to give
effect to and to enforce the judgments of the United
States Courts covering the subject matter of this prosecu
tion, particularly the 'Decree a n d Injunction' of the
United States District Court for the Middle District of
North Carolina, in Civil Case No. 1058, in which these
defendants were plaintiffs and Gillespie Park Golf Club,
Inc., was one of the defendants, covering the identical
acts and conduct charged by the State to be a crime of
trespass in this case, said 'Decree and Injunction' reading
in part as follows:
" 'It is now ordered, adjudged and decreed that de
fendants have unlawfully denied the plaintiffs as residents
of the City of Greensboro, North Carolina, the privileges
of using the Gillespie Park Golf Course, and that this was
done solely because of the race and color of the plain
tiffs, and constitutes a denial of their constitutional rights,
and unless restrained will continue to deny plaintiffs and
others similarly situated.'
"That the State of North Carolina and its Jury in this
case undertake to find to be criminal the identical acts
and conduct which said 'Decree and Injunction' holds to
be protected by the Constitution of the United States, and
further undertake to find to have been lawfully done,
that which said 'Decree and Injunction' holds was 'unlaw-
44
fully' done, and that to permit said verdict to stand and
to punish these defendants on the basis of said verdict
would nullify and render ineffectual the rights of these
defendants which said 'decree and injunction' holds to
be guaranteed and protected by the Constitution and
laws of the United States, including the due process and
equal protection clauses of the 14th Amendment."
The appellee State did not answer or controvert these
allegations in any way.
The general principle of the supremacy of decisions of
the Federal Courts upon Federal matters and rights was set
forth by this Court in Cooper v Aaron, 358 US 1, 18, 3 L ed
2d 5, 16-17, 78 S Ct 1401, as follows-.
"Article VI of the Constitution makes the Constitution
the 'supreme Law of the Land.' In 1803, Chief Justice
Marshall, speaking for a unanimous Court, referring to
the Constitution as 'the fundamental and paramount law
of the nation,' declared in the notable case of Marbury
v Madison (US) 1 Cranch 137, 177, 2 L ed 60, 73, that
'It is emphatically the province and duty of the judicial
department to say what the law is.' This decision declared
the basic principle that the federal judiciary is supreme
in the exposition of the law of the Constitution, and that
principle has ever since been respected by this Court
and the Country as a permanent and indispensable fea
ture of our constitutional system."
Appellee seems to concede, at least by implication, that
it would be bound by the above-quoted Declaratory Judg
ment of the Federal Court if it had in any way been a party
to the proceedings. "The Court w ill further note," appellee
says on Page 4 of its Motion to Dismiss in this Court, "that the
State of North Carolina was in no manner made a party to
this civil action in the Federal Court." (Emphasis added.) This
same concession seems to be implicit in the State Supreme
Court's opinion (R 1 16):
"The State challenges the assertion that there has been
an attack, collateral or otherwise, on the judgment ren
45
dered by the District Court. It maintains that the questions
to be answered are these: (1) Should a court take judi
cial knowledge of facts found at another time by another
court in another action; and if this question be answered
in the affirmative, (2) is the State, in a criminal prosecu
tion, concluded by facts found in a civil action to which
it is not a party?" (Emphasis added)
The first question, of course, appellants believe, was be
side the point, because appellants had alleged verbatim the
Declaratory Judgment of the Federal Court, and appellee
State had not answered or denied or controverted the allega
tions in any way.
The State Was Constitutionally
a Party to the Federal Court Case.
As to the second question, appellants believe that the
State was constitutionally a party to the Simkins Case under
the principles announced and confirmed by this Court in Coop
er v Aaron, supra. The State of North Carolina occupies the
same relationship constitutionally to the Simkins Case that the
State of Arkansas occupied to Cooper v Aaron. In both cases
Negro plaintiffs had sued agencies of the State to vindicate
constitutional rights. In both cases the Federal Courts had
issued Declaratory Judgments establishing those constitutional
rights. The State was not a party by name in either case.
Under these circumstances, in his concurring opinion in
Cooper v Aaron, Mr. Justice Frankfurter said: "Accordingly,
while Arkansas is not a formal party in these proceedings
and a decree cannot go against the State, it is legally and
morally before the Court." (358 US at 22) (Emphasis added.)
Can there be any doubt that the position of this Court
would have been the same in Cooper v Aaron if, instead of
being faced with a situation where the Governor of the State
had called out the National Guard to prevent the Negro
children from exercising their "constitutional rights" which
had been duly declared by the Federal Courts, this Court
had been faced with a situation where the State's prosecutor
had waited until the Negro children went upon the grounds
46
of Central High School (after some representative of the State
had told them to stay away or to leave after they had enter
ed), and then thrown the children in jail on warrants charg
ing a violation of the State's criminal trespass statute? (See
Thomason v Cooper, supra.)
Appellants believe that such is the exact situation pre
sented by the instant case. The warrants involved in this case
were drawn and appellants were arrested under them after
the Declaratory Judgment quoted above had been issued,
and after it had been affirmed by the Court of Appeals for
the Fourth Circuit, establishing (as the Federal Courts are
authorized to do by the Federal Declaratory Judgment Act,
28 USC 2201) that the identical acts and conduct charged
by the State to be a crime in this case represented the "con
stitutional rights" of appellants under the Constitution of the
United States, and also establishing that these "constitutional
rights" had been "unlawfully denied" to appellants by appel
lee State's agencies.
The State thus by its convictions and sentences in this
case as effectively thwarts and renders ineffectual the Declara
tory Judgment of the Federal Courts as the State's National
Guard troops had done in Cooper v Aaron. Appellants be
lieve that the Supremacy Clause forbids such action by any
State. " 'It is of the very essence of supremacy to remove ail
obstacles to its action within its sphere, and so to modify every
power vested in subordinate governments, as to exempt its
own operations from their own influence.'" Public Utilities
Commission v United States, 355 US 534, 544, 2 L ed 2d 470,
478, 78 S Ct 446.
In Cooper v Aaron, supra, this Court said:
" I f the legislatures of the several states may, at w ill,
annul the judgments of the courts of the United States,
and destroy the rights acquired under those judgments,
the constitution itself becomes a solemn mockery . . .' "
(358 US at 18) (Emphasis added.)
It cannot be disputed that the State statute (GS 14-134),
as construed and applied in this case, undertakes in the G uil
ford County Court House to make a crime out of the identical
47
acts and conduct which, across the street in the Federal Court
House, the Federal Courts had already held to represent the
"constitutional rights" of appellants, protected by the Con
stitution of the United States from infringement by the State.
Appellants believe that the Supremacy Clause forbids
the exertion of State power in the form of the convictions
and jail sentences disclosed by the record in this case, in the
teeth of the previously exerted Federal power in the form
of the Declaratory Judgment of the Federal Court. In Garner
v Teamsters, etc, 346 US 485, 500, 98 L ed 228, 245, 74 S Ct
161, this Court said:
"W e conclude that when federal power constitutionally
is exerted for the protection of public or private interests,
or both, it becomes the supreme law of the land, and
cannot be curtailed, circumvented or extended by a State
procedure merely because it will apply some doctrine
of private right. To the extent that the private right
may conflict with the public one, the former is supersed
ed."
Question of Offering the Federal Records in Evidence
While appellants believe that sufficient of the Federal
Court proceedings were in the record and before the State
Courts, the appellee State makes quite a point of this question
in its Motion to Dismiss (See Pages 11 and 23). The State
Supreme Court also makes a point of this contention in its
opinion (R 115) in these words: "Although defendants had the
record in that case identified, they did not offer it in evidence.
It is not a part of the record presented to us. Our knowledge
of the facts in that case is limited to what appears in the
published opinion." (Emphasis added.)
The Record itself at Page 92 shows that the State Supreme
Court inadvertently overlooked the fact that the Federal
Court's Declaratory Judgment was "a part of the record pre
sented" to that Court.
As to the Opinion of the Federal District Court, the State
Supreme Court itself acknowledges that that Opinion was be
48
fore the State Courts and that the State Courts had "knowl
edge of the facts" contained in that opinion. (R 1 15).
The Record also shows that the Federal District Court's
Finding of Fact No. 33 (R 94) and Finding of Fact No. 30
(R 95-96), which were two of the key Findings of Fact, were
"a part of the record presented" to the State Supreme Court.
But, generally as to the question of offering the Federal
Court record in evidence, the simple truth is that the record
was in fact offered in evidence and its admission refused.
On Page 79 of the Record appears the following:
"Exception No. 22:
"M rs. Kennedy: If your Honor please, we'd like, if possi
ble, to have a ruling on whether or not these would be ad
missible.
"Court: I am going to sustain the objection as to those
two Exhibits, that is No. 6 and No. 7.
"Exception No. 2 2 ."
Appellants attach hereto photographic reproductions of
Pages 58 and 59, marked Appendix 4 (a) and Appendix 4
(b), of the original "Transcript of Testimony" furnished to
counsel for appellants in the State trial court by the Official
Court Reporter in the trial of this case.
By some quirk of inadvertence the identification of the
Federal Records as "Defendants' Exhibits 6 and 7 ", as shown
by said Appendixes, was omitted entirely from the record
which went to the Supreme Court of North Carolina on appeal.
On Page 14 of appellants' brief before the Supreme
Court of North Carolina, the true fact was called to the at
tention of the Court by the following: "The Court erred in re
fusing to admit defendant's Exhibits 6 and 7, as set out in Ex
ception No. 22. These exhibits were the decrees, the findings
of fact, conclusions of law and opinion of the Federal District
Court in the Simkins case and the opinion of the Court of Ap
peals, Fourth Circuit, in the same case."
49
Exercising its wide discretion to go outside the record for
vital information concerning the true facts as to what tran
spired in the lower court (See Mason v Commissioners of
Moore, 229 NC 626, 627, 51 SE 2d 6, and Aycock v Richard
son, 247 NC 234, 100 SE 2d 379,), the Supreme Court of
North Carolina went outside the record (it could not be found
in the record) to find, with reference to the records of the
Federal Court proceedings, that "the defendants had the rec
ord in that case identified . . ."
But by some quirk of inadvertence the Supreme Court of
North Carolina failed to notice that the Federal Court rec
ords were identified as "Defendants' Exhibits 6 and 7 ," and
therefore erroneously came to the conclusion that appellants
did not offer these records in evidence.
In view of the North Carolina Supreme Court's wide dis
cretion (See Williams v Georgia, 349 US 375, 99 L ed 1161,
75 S Ct 814) to go beyond the record to get at the truth,
appellants do not believe that, if offering these Federal
Court records in evidence should become a material issue, the
above-mentioned quirks of inadvertence will render this Court
powerless itself to look at the true facts in this case. Appel
lants could not call this to the attention of the State Supreme
Court because no petition for rehearing is permitted in a
criminal case in the Supreme Court of North Carolina. (See
State v Council, 129 NC 371 (511), 39 SE 814, and Certificate
of the Clerk of the Supreme Court of North Carolina (R 139).
Nor do appellants believe that on oral argument, the
representatives of appellee will tell this Court that the true
facts about offering the Federal Court records in evidence are
other than as herein set forth.
B. TH E FO URTEENTH AMENDMENT Q UESTIO N S
I. The "Equal Protection of the Laws" Questions
(1) Does the record show racial discrimination against
appellants in the use of Gillespie Park Golf Course (a) by the
"facts" in the "published opinion" of the Federal Court, which
the State Supreme Court said were known to the State courts?
50
or (b) by the Declaratory Judgment of the Federal Court,
which was alleged verbatim in the Motion to Set Aside the
Verdict and which was not denied or controverted by the ap
pellee State in any way? or (c) within the "ru le of exclusion"
established by such cases as Hernandez v Texas, 347 US 475,
98 L ed 866, 74 S Ct 667, and Eubanks v Louisiana, 356 US
584, 2 L ed 2d 991, 78 S Ct 970? Is the State's criminal tres
pass statute (GS 14-134} unconstitutional as applied in this
case, because it seeks to implement and make good such racial
discrimination?
The Opinion of the United States District Court for the
Middle District of North Carolina (149 Fed Supp 562) and
that Court's Declaratory Judgment (R 92) show abundantly and
clearly racial discrimination against appellants. They speak
for themselves.
The "rule of exclusion" by which racial discrimination
may be proved was set forth in Hernandez v Texas, supra, as
follows (347 US at Pages 480, 481):
"Having established the existence of a class, petitioner
was then charged with the burden of proving discrimina
tion. To do so, he relied on the pattern of proof establish
ed by Norris v Alabama, 294 US 587, 79 L ed 1074, 55
S Ct 579. In that case, proof that Negroes constituted
a substantial segment of the population of the jurisdic
tion, that some Negroes were qualified to serve as jurors,
and that none had been called for jury service over an
extended period of time, was held to constitute prima
facie proof of the systematic exclusion of Negroes from
jury service. Th is holding, sometimes called the 'rule of
exclusion', has been applied in other cases, and it is
available in supplying proof of discrimination against a
delineated class." (Emphasis added.)
"To rebut the strong prima facie case of the denial of
the equal protection of the laws guaranteed by the Con
stitution thus established, the State offered the testimony
of five jury commissioners that they had not discriminated
against persons of Mexican or Latin American descent
51
in selecting jurors. They stated that their only objective
had been to select those whom they thought were best
qualified. Th is testimony is not enough to overcome the
petitioner's case."
The record shows that appellants are Negroes (R 32,
91) The 1950 Census shows that Negroes constitute 25 per
cent of the population of Greensboro, North Carolina.* Three
colleges (The North Carolina Agricultural and Technical Col
lege, Immanuel Lutheran College, and Bennett College)*,
whose students and faculties are predominantly Negroes are
located in Greensboro. The Federal Court's Opinion (149
Fed Supp at 563) shows that one of the appellants is "a dentist
and practicing his profession in Greensboro." The Federal
law under which the golf course was built requires (See Ap
pendix 3-g) that this golf course must provide "the greatest
degree of public usefulness."
City of Greensboro candidly conceded in its brief before
the United States Court of Appeals for the Fourth Circuit
that, from the time this golf course was built about 1940
"until 1949, the City operated the golf course exclusively for
white citizens." (See Appendix 1 -a)
Appellee State's witness, Clyde Bass, the Assistant Pro
in charge, testified: "To my knowledge, no Negroes have ever
played at the Gillespie Park Golf Course before this date.
Some Negroes have presented themselves before this date to
play, but none have played to my knowledge." (R 45).
The trial judge sustained the State's objection to the
question: "W hy didn't they play?" (R 45)
Appellants believe that the above presents clear "prima
facie proof of the systematic exclusion of Negroes from"
Gillespie Park Golf Course and of racial discrimination against
the appellants. Especially, in the opinion of appellants, should
the "ru le of exclusion" be applied to supply proof of racial
discrimination in a case like this, since the State courts have
*See Robinson, "The North Carolina Guide," (1955), University
of North Carolina Press, Pages 204, 205.
52
by their rules of evidence closed the mouths to the truth of
the operators of the golf course, they being the persons who
know more about the racial discrimination which they had
practiced than anybody else. (See Record 45, 48, 78) Appel
lants discuss this phase of the case below under the Due
Process Questions.
In this connection, it is revealing that, on Page 13 of its
brief before the State Supreme Court, appellee says: "These
exceptions relate to the exclusion of certain evidence by the
trial court. The question of whether or not Negroes had pre
viously been refused to play on the golf course is utterly im
material." (Emphasis added.) These actions of the trial court
in excluding evidence of racial discrimination were sustained
by the State Supreme Court: "The exceptions to the admission
and exclusion of evidence have been examined. We have
found none which indicates prejudicial error or appears to
warrant discussion." (R 118)
It thus appears that, but for the "rule of exclusion"
established by the decisions of this Court for the proof of racial
discrimination, the State rules of evidence in this case would
effectively prevent appellants from proving their constitutional
right to be free from racial discrimination in the use of
Gillespie Park Golf Course.
Pattern of Racial Discrimination Consistent with
Everything and Inconsistent with Nothing in This Case
Everything in this case matches and is consistent with the
pattern of racial discrimination, while nothing is inconsistent
with that pattern. For instance, if racial discrimination had not
been practiced against appellants in this case, and if "the
question of racial discrimination in the use of the golf course
was not involved in this case," as appellee says on Page 5
of its Motion to Dismiss in this Court, then how does appellee
explain the facts of common knowledge (See Appendices 2-a
to 2-g), which show that on the day before the Federal Court's
injunction became effective forbidding any further racial dis
crimination at the golf course, after the club house had burned,
the City collected the insurance money and appellee State's
53
agencies closed down the golf course and have never operated
it for a single day since the Federal Court's injunction went into
effect?
The pattern of racial discrimination in this case makes
clear the truth of the finding in the Federal Court's Opinion,
(149 Fed Supp at 563), which the State Supreme Court said
the State courts had knowledge of: "The evidence does clearly
show that white people were allowed to play by paying greens
fees without any questions and without being members. When
Negroes asked to play, they were told they would have to be
members before they could play and it clearly appears that
there was no intention of permitting a Negro to be a member
or to allow him to play, solely because of his being a Negro."
The pattern of racial discrimination also makes clear the
truth of the Federal Court's finding in said Opinion (149 Fed
Supp at 565) that the brief of the City of Greensboro in that
case "lends powerful weight to the inference that the lease
was resorted to in the first instance to evade the City's duty
not to discriminate against any of its citizens in the enjoyment
in the use of the park."
Since Gillespie Park Golf Course was one of the busiest
in the Greensboro area (See Appendix 2-e), only the pattern
of racial exclusion of Negroes can explain how it happened,
as found by the Federal District C ol rt in Finding of Fact No.
28 (See Page 73 of appellants' Statement As To Jurisdiction):
"That about seven years have expired under the leases and
that during the time a total cumulative membership did not
exceed 162 persons, and not more than 60 persons have
membership in the corporation at this time." This finding
makes understandable the testimony of the Assistant Pro,
Clyde Bass: " I know most of the members who present them
selves to play." (R 44) This would obviously have been im
possible if all of the people playing at Gillespie Park Golf
Course had to be members, especially since he testified that he
had worked at the golf course only "about 8 or 9 months"
(R 44).
Only the pattern of racial discrimination can explain how
the City of Greensboro could say in its resolution terminating
54
the lease of its "private club" (See appendix 2-g.): "Whereas,
the Gillespie Park Golf Club, Inc., was created a non-profit,
non-stock corporation and no person, other than the City, has
invested any funds in the corporation or in the Golf Course and
its equipment; and the Golf Club has operated solely on funds
derived from the use of the Golf Course." (Emphasis added.)
Especially is this so in view of the testimony of the president
of Gillespie Park Golf Club, Inc., which appellee State seems
to take at face value (See Page 8 of Motion to Dismiss) in ap
pellee's statement that "the corporation invested about
$100,000 in improvements and expanded it into an 18-hole
golf course, and, further, they built a club house at a cost of
about $5,000."
But the City's resolution is perfectly consistent with Find
ing of Fact No. 29 of the Federal District Court (See Page 74
of appellants' Statement As To Jurisdiction) "that the mem
bers and directors of the corporation have not invested a single
cent of their own money in the corporation, while at the same
time some of them have profited through compensation as
officers and employees of the corporation." The State Supreme
Court also seems to take at face value the testimony of the
golf corporation's president: "There is evidence that lessee
had, during its term, expended more than $100,000 in enlarg
ing the course from a nine-hole course to an eighteen-hole
course, constructing a club house, and making other improve
ments." (R 112)
So far as appellants have been able to discover, there is
not a single fact or circumstance in this case which points to
the absence of racial discrimination against appellants. If there
are such facts or circumstances, surely appellee State w ill point
them out in its brief. No State witness denied racial discrimina
tion.
(2) Does the "lack of standards in the license-issuing
practice" for playing on Gillespie Park Golf Course consti
tute "a denial of equal protection" without regard to racial
discrimination, within the meaning of such cases as Niemotko
v Maryland, 340 US 268, 273, 95 L ed 267, 271, 71 S Ct 325?
Is the State's criminal trespass statute (GS 14-134) unconstitu
55
tional as applied in this case, because it seeks to make lawful
such "lack of standards"?
In Niemotko this Court "examined the licensing systems
by which local bodies regulate the use of their parks and
public places." (340 US at Page 271) Th is Court said:
"In the instance case we are met with no ordinance or
statute regulating or prohibiting the use of the park; all
that is here is an amorphous 'practice/ whereby all
authority to grant permits for the use of the park is in
the Park Commissioner and the City Council. No stand
ards appear anywhere; no narrowly drawn limitations;
no circumscribing of this absolute power; no substantial
interest of the community to be served." (340 US 271-
272)
And this Court held in Niemotko:
"It thus becomes apparent that the lack of standards
in the license-issuing 'practice' renders that 'practice' a
prior restraint in contravention of the Fourteenth Amend
ment, and that the completely arbitrary and discrimina
tory refusal to grant the permits was a denial of equal
protection. Inasmuch as the basis of the convictions was
the lack of the permits, and that lack was, in turn, due
to the unconstitutional defects discussed, the convictions
must fa ll." (Emphasis added.)
In his concurring opinion in Niemotko, Mr. Justice Frank
furter said-.
"The vice to be guarded against is arbitrary action by
officials. The fact that in a particular instance an action
appears not arbitrary does not save the validity of the
authority under which the action was taken." (340 US at
285—Emphasis added.)
There is present here, in refusal to grant permission
to appellants to play on the golf course, as this Court held
in Niemotko, a "lack of standards in the license-issuing"
authority entrusted to Gillespie Park Golf Club, Inc., conceded-
ly an agency of the State. "N o standards appear anywhere"
56
and "no narrowly drawn limitations" appear in this case for
granting permission to play on the Gillespie Park Golf Course,
any more than such standards or limitations appeared in
Niemotko, supra.
The State Supreme Court quoted with approval excerpts
from the trial court's charge to the jury, such as: . . the
Gillespie Golf Club, Inc., by leasing the land from the City of
Greensboro to use as a golf course was subjected to the same
obligations as the City of Grensboro would have been had it
operated the golf course itself.' " (R 113) But, under Niemotko
and other cases cited in it, the City of Greensboro was obligat
ed to establish "standards" and "narrowly drawn limitations"
for the use of the golf course. Where do we find any such
"standards" or "narrowly drawn limitations" to govern the
granting of permission to play on Gillespie Park Golf Course?
There are none!
The by-laws of Gillespie Park Golf Club, Inc. provided
in Article 1, Section 2 (R 73): "The golf course and its facili
ties shall be used only by members, their invited guests, mem
bers in good standing of other golf clubs, members of the Caro
lina Golf Association, pupils of the Professional and his invited
guests." (Emphasis added.)
The arbitrary manner in which this section of the by-laws
was used is shown by the fact that, when appellants, who were
members in good standing of Nocho Park Golf Club, appeared
and sought permission to play, the provision in the by-laws
which says "members in good standing of other golf clubs"
(Emphasis added.) was interpreted and administered, without
any amendment as provided in Article 5, Section 1 (R 75), to
read: "members in good standing of other golf clubs which
are members of the Carolina Golf Association." (R 76, 77).
This expansion of the by-laws by interpretation was approved
by the trial judge in his charge to the jury (R 87, 88).
Appellee says in its Motion to Dismiss: "Appellants are
subject to the same eligibility conditions as any other race,"
meaning it seems that some white people might not meet the
"private club" conditions which applied to Gillespie Park Golf
Course. The answer to that suggestion is the same as that
57
given by this Court to a sim ilar suggestion in Shelley v Krae-
mer, 334 US 1, 22, 92 L ed 1161, 1185, 68 S Ct 836:
" it is, therefore, no answer to these petitioners to say
that the courts may also be induced to deny white persons
rights of ownership and occupancy on grounds of race
or color. Equal protection of the laws is not achieved
through indiscriminate imposition of inequalities." (Em
phasis Added.)
Appellee also emphasizes in its Motion to Dismiss (Page
8), as does the State Supreme Court in its opinion (R 114), the
trial court's charge to the jury that all seeking to play on the
golf course must comply "with the reasonable rules and regula
tions for the operation and maintenance and use of the golf
course," and that nobody could be made "to comply with any
unreasonable rules and regulations." The difficulty with this
contention is that "no standards appear anywhere; no narrow
ly drawn limitations" (Niemotko v Maryland, supra) to govern
either the managers of the golf course in granting or withhold
ing permits to play golf, or to govern or guide the jury in its
determination of what is "reasonable" or "unreasonable." For,
it was said in Niemotko:
" It is quite apparent that any disorderly conduct
which the jury found must have been based on the fact
that appellants were using the park without a permit,
although, as we have indicated above, there is no sta
tute or ordinance prohibiting or regulating the use of the
park without a permit." (Emphasis Added.)
That the managers of Gillespie Park Golf Course did
not consider themselves bound by any "standards" or "narrow
ly drawn limitations" is shown by the testimony of the presi
dent of Gillespie Park Golf Club, Inc., when he said: "W e set
up our own rules . . . We operated completely on our own.
The City had nothing whatever to do with it." (R 76)
In addition Section 1 of Article 5 of the by-laws of Gilles
pie Park Golf Club, Inc., said: "Authority for the amending,
altering or repealing of the By-Laws shall be vested in the
Board of Directors." (R 75) By a two-thirds vote the seven
58
directors (R 74) could "amend, alter or repeal these By-Laws"
at w ill. (R 75)
There were no "standards" or "narrowly drawn limita
tions" and "no circumscribing of this absolute power" (See
Niemotko v Maryland, supra) thus vested in the Board of
Directors of Gillespie Park Golf Club, Inc.
What is more, "the voice of the State most presently
speaking to the appellants" (See Raley v Ohio, supra, 3 L ed
2d at 1356), when appellants sought to play this golf course,
was Assistant Golf Pro Clyde Bass. Did he tell appellants of any
"reasonable rules and regulations for the operation and main
tenance and use of the golf course?" He did not. Instead, he
"told them it was a private club for members and invited guest
only" (R 44). No witness testified to the contrary.
The State's agencies, in their zeal to be letter-perfect
in excluding Negroes, ran afoul of the Constitution's command
of equal protection, without regard to racial discrimination.
Appellants feel that in this case, as in Niemotko, supra, "the
convictions must fa ll" for "lack of standards in the license-issu
ing" authority delegated to the managers of the golf course.
II. The "Due Process of Law" Questions
In W olf v Colorado, 338 US 25, 27, 93, L ed 1782, 1785,
69 S Ct 1359, this Court said:
"Th is Clause exacts from the States for the lowliest
and the most outcast all that is 'implicit in the concept of
ordered liberty/ 302 US at 325
"Due process of law thus conveys neither formal nor
fixed nor narrow requirements. It is the compendious ex
pression for all those rights which the courts must enforce
because they are basic to our free society."
And, in Bartkus v Illino is,___ US____, 3 L ed 2d 684, 689,
79 S Ct 676, this Court said:
"Decisions under the Due Process Clause require close
and perceptive inquiry into fundamental principles of
59
our society. The Anglo-American system of law is based
not upon transcendental revelation but upon the con
science of society ascertained as best it may be by a
tribunal disciplined for the task and environed by the
best safeguards for disinterestedness and detachment."
(1) Do the State rules in this case which closed the mouths
to the truth of certain key witnesses violate the standards of
justice and fundamental fairness which the Due Process Clause
of the Fourteenth Amendment commands of the States in
criminal prosecutions? Is the State's criminal trespass statute
(GS 14-134) unconstitutional as applied in this case, because it
seeks to implement and make lawful such impediments to the
discovery of truth?
Concurring in Hawkins v United States,___ US____, 3 L ed
2d 125, 130, 79 S Ct 136, Mr. Justice Stewart said:
Any rule that impedes the discovery of truth in a
court of law impedes as well the doing of justice."
In United States v Reynolds, 345 US 1, 12, 97 L ed 727,
735, 73 S Ct 528, this Court said:
"The rationale of the criminal cases is that, since the
Government which prosecutes an accused also has the
duty to see that justice is done, it is unconscionable to
allow it to undertake prosecution and then invoke its
governmental privileges to deprive the accused of any
thing which might be material to his defense."
The factual situation under this question and appellee
State's attitude toward it are indicated on Page 13 of the
State's brief before the Supreme Court of North Carolina
in this case, as follows:
"O f course, there was no error in the Court refusing
to allow the witness Hughes to be called as an adverse
witness . . . This was a matter in the discretion of the
Court, and counsel for the defendants have evidently
confused Federal practice with State practice."
The question goes deeper than a matter of practice. The
witness Hughes was president of Gillespie Park Golf Club,
60
Inc., and the State had rested its case without calling him as
a witness. (R 50) Th is witness was the same John R. Hughes
who testified in the Simkins Case in the United States District
Court for the Middle District of North Carolina. There Judge
Hayes had made Findings of Fact (See Appellants' Statement
as to Jurisdiction, Pages 72-74) which showed the crucial
nature of the information which this witness held in his bosom:
"21 . That the City of Greensboro operated the Gillespie
Park Golf Course from 1941 until 1949 for the comfort and
convenience of white citizens only.
"22 . That on or about February 1, 1949, the plaintiff,
Arthur Lee, Jr., together with three other Negro citizens of
the City of Greensboro, sought the use of the facilities of
Gillespie Park Golf Course and were denied said use.
"23 . On or about February 15, 1949, representatives of
the Greensboro Men's Club, an organization of Negro citizens
of the City of Greensboro, appeared before the City Council of
the City of Greensboro and requested that Negro Citizens be
given the right to play golf at the Gillespie Park Golf Course
in as much as the city provided no facilities for Negro golfers.
"24 . That on or about February 17, 1949, a group of
Negro citizens of the City of Greensboro appeared before the
City Parks and Recreation Commission and requested the use
of all of the facilities at the Gillespie Park Golf Course. On
March 2, 1949, the City Parks and Recreation Commission
adopted a resolution recommending to the City Council of
Greensboro 'that the City of Greensboro provide golf facilities
for the exclusive use of Negro citizens' and that 'the golf
course located off Asheboro Street, now used by White not
be used by Negroes.' That the resolution embodying these
recommendations was presented to the City Council of Greens
boro on March 15, 1949 by John R. Hughes, Chairman of the
Greensboro Parks and Recreation Commission and that the
recommendations were approved by the City Council on said
date.
"25 . That the Greensboro Parks and Recreation Commis
sion formulates a park and recreation program for the City
61
and serves the City in an advisory capacity in the formulation
of park and recreation budget and policy.
"26 . That the said John R. Hughes who appeared before
the City Council on March 15, 1949 became the chief promoter
and prime negotiator of the leases involved in this case. That
at the first meeting of the Board of Directors of the corporation
he was 'authorized and directed to meet with the Greensboro
City Council and to have full authority to act on behalf of the
corporation in securing a lease of the club house, golf equip
ment, and as much land as might be leased from the city/
and also he 'was further instructed and empowered to con
tact the Greensboro school board and to negotiate an agree
ment for the lease of the nine-hole golf course on the school
property off of .Asheboro Street.' That the said John R. Hughes
did in fact appear before the City Council and the School
Board and did persuade them to authorize the leases involved
in this case, and at all times involved in these negotiations,
the said John R. Hughes was chairman of the Greensboro
Parks and Recreation Commission.
"27. That the said John R. Hughes who appeared before
the City Council on March 15, 1949 became the chief pro
moter and organizer of the defendant Gillespie Park Golf
Club, Inc. That the meetings of the corporation were held
in his office and he successively became a director, vice-
president, secretary and president of the corporation. That
he has been the attorney for the corporation from its inception
to the present time.
"28. That about seven years have expired under the
leases and that during the time a total cumulative membership
did not exceed 162 persons, and not more than 6 0 'persons
have membership in the corporation at this time. That no meet
ing of the membership of the corporation has ever been held
during the life of the corporation, and that only the members
who are also on the board of directors have any voice in the
affairs of the corporation. That the board of directors under
the by-laws of the corporation is constituted of seven self-
perpetuating members who have the sole power and authority
to approve persons for membership and to amend or change
62
the by-laws. That no formal, recorded vote by the board of
directors has ever been taken approving any person or per
sons as members and no meeting held for this purpose, all
members appearing on the roll having been approved by
telephone conversations between the Golf Professional and an
undetermined number of the members of the board of di
rectors.
"29 . That all of the funds which have been paid out for
operating the golf course under the leases have ultimately
come from income which the City would have received direct
except for the existence of the leases, and that the members
and directors of the corporation have not invested a single
cent of their own money in the corporation, while at the same
time some of them have profited through compensation as
officers and employees of the corporation. That during the
life of the lease, funds of the defendant City of Greensboro,
from sources other than the golf course have been invested
in the property.
"30 . That the leases in this case undertook to turn over to
a corporation having no assests or income highly valuable
income-producing property belonging to the City and the
school board, the chief officer and promoter of said corpora
tion being an official of the city, and the city having no pros
pect of getting anything from said leases except out of the
income which the leased property was already bringing in,
and with the city reserving the right to put into the property
further investments from other sources than said income and
that under these circumstances said corporation was in fact an
agency of the city and the school board for the continued
maintenance and operation of the golf course for the con
venience of the citizens of Greensboro."
Under these circumstances counsel for appellants asked
permission of the trial court to call the witness, John R. Hughes,
as an adverse witness. This permission was refused. (R 72, 78)
Thereupon counsel for appellants called Mr. Hughes as a
witness and had him to identify the by-laws of Gillespie Park
Golf Club, Inc. (R 72)
Then, on "cross examination" (R 75) the trial court permit
63
ted the witness Hughes to make a number of self-serving
statements for the golf corporation and its officials. (R 75-76)
On Page 77 of the Record appears this testimony of the
witness Hughes: "I did not testify for my association in the case
of Simkins and others against the City of Greensboro, Board
of Education and Gillespie Park Golf Club, Inc."
Then counsel for appellants propounded this query: "Q .
Mr. Hughes, I hold in my hand a document purporting to be
a transcript of the testimony in the case." (R 78)
Immediately following this question, the following appears
in the Record at Page 78:
"M r. Kornegay: Objection.
"Court: Bear in mind that he is your witness.
"M r. Marsh: I called him under 8-50.
"Court: I told you that you could call him as your witness.
I'll be glad to read any statute that you have. The objection
is sustained. Exception No. 19."
On Page 79 of the Record the following appears:
"In the Absence of the Jury, Mr. John R. Hughes Made
the Following Statement to the Court:
"M r. Hughes: If your Honor please, I would like to ask
the Reporter to read the question and answer which I gave
in my testimony, so that we may get the record straight.
"Question Read by Reporter as follows: 'Mr. Hughes, did
you testify for your Association in the case of Simkins and
others against the City of Greensboro, Board of Education,
and Gillespie Park Golf Club, Inc.?'
"M r. Hughes: In order that there may be no misunder
standing, I did testify in that case, but I was called as an ad
verse witness for the plaintiffs.
"Court: Do you wish to call Mr. Hughes back to the stand.
"M r. Marsh: No, your Honor."
64
The trial court had already ruled that appellants could
not prove by this witness what he testified to in the Federal
Court proceedings.
Appellants respectfully submit that the appellee State
has thus impeded "the discovery of truth" in this case and has
thus impeded "as well the doing of justice." (Hawkins v
United States, supra) Appellants further submit that the State
has thus invoked " its governmental privileges to deprive" ap
pellants of a fa ir opportunity to prove their full defense in
this case and that this is "unconscionable" (United States v
Reynolds, supra), and violates that which " is 'implicit in the
concept of ordered lib e rty '" (W olf v Colorado, supra) and also
violates the "fundamental principles of our society" as well as
"the conscience of society" (Bartkus v Illinois, supra.)
Appellants believe that the same principles apply to the
refusal of the trial court to permit appellants to cross examine
the State's witnesses as to the reasons why Negroes had not
been permitted to play on Gillespie Park Golf Course. (R
45, 48)
Witnesses Hughes, Bass and Edwards, as president and
employees, respectively, of the golf corporation, were testifying
as to actions taken when they were agents of appellee State it
self. (R 96)
(2) The Supreme Court of North Carolina having held for
the very first time in this case that this criminal trespass statute
(GS 14-134) applies also to public lands, and not just to
lands "privately held" (State v Clyburn, 247 NC 455, 458, 101
SE 2d 295), does the judgment in this case send each of the
appellants "to jail for a crime he could not v/ith reasonable
certainty know he was committing" (Scull v V irg in ia ,___US___ ,
3 L ed 2d 865, 871, 79 S Ct 838)?
The rule was stated in Scull as follows:
"To sustain his conviction for contempt under these
circumstances would be to send him to jail for a crime
he could not with reasonable certainty know he was
committing. This Court has often held that fundamental
fairness requires that such reasonable certainty exist."
(Emphasis added.)
65
That citizens are entitled to rely upon decisions of the
highest Court of a State which interpret the statutes of the
State seems clear. In National Association for the Advance
ment of Colored People v Alabama, 357 US 449, 457, 2 L ed
2d 1488, 1497, 78 S Ct 1163, this Court said:
"Even if that is indeed the rationale of the Alabama
Supreme Court's present decision, such a local procedural
rule, although it may now appear in retrospect to form
part of a consistent pattern of procedures to obtain ap
pellate review, cannot avail the State here, because
petitioner could not fa irly be deemed to have been ap
prised of its existence. Novelty in procedural require
ments cannot be permitted to thwart review in this Court
applied for by those who, in justified reliance upon prior
decisions, seek vindication in state courts of their federal
constitutional rights." (Emphasis added.)
The appellee State seems to claim that the rule of deci
sion by the Supreme Court of North Carolina has always
been, and indeed still is that this criminal trespass statute
(GS 14-134) applies only to lands "privately held," as was the
holding in State v Clyburn, supra. On Page 18 of its Motion
to Dismiss in this Court appellee says: "The Supreme Court of
North Carolina has not changed its rule in interpreting the
statute because the evidence showed that the property was in
the possession of a private corporation even though it was
impressed with a non-discriminatory use." (Emphasis added.)
Since federal constitutional rights are involved in this
case, this Court w ill, of course, determine for itself whether
this golf course "was in the possession of a private corpora
tion," (Emphasis added.) in determining whether or not ap
pellants had a "justified reliance upon prior decisions" (NAACP
v Alabama, supra) that this criminal trespass statute did not
apply to the public lands involved in this case. In Niemotko
v Maryland, supra, this Court said: "In cases in which there
is a claim of denial of rights under the Federal Constitution,
this Court is not bound by the conclusions of lower courts, but
will reexamine the evidentiary basis on which those conclusions
are founded." (Emphasis added.)
66
The facts show that these lands were owned by the City
of Greensboro and the Greensboro City Board of Education,-
that the golf course was built pursuant to Federal law which
required that these lands be public; that the City and the
Board of Education, in order to induce the United States to
pay 65 per cent of the cost, agreed with the United States
that these lands would remain public and would not be
leased or sold to any private or quasi-public interest; that the
golf corporation was an agency of the City and the Board
of Education, and Judge Hayes even found that the City's
own brief before him "lends powerful weight to the inference
that the lease was resorted to in the first instance to evade the
City's duty not to discriminate against any of its citizens." (149
Fed Supp at 565)
Under these circumstances, how could any citizen under
stand "with reasonable certainty" that these lands were "p r i
vately held", so as to make the criminal trespass statute
(GS 14-134) apply to these lands?
(3) Do the multiple criminal proceedings against appel
lants in this case reach the areas which the Due Process
Clause forbids, such as "fundamental unfairness" or "unduly
harassing an accused" (Hoag v New Jersey, 356 US 464,
467, 2 L ed 2d 913, 917, 78 S Ct 829), or "merely in order
to allow a prosecutor who has been incompetent or casual or
even ineffective to see if he cannot do better a second time"
(Concurring Opinion in Brock v North Carolina, 344 US 424,
429, 97 L ed 456, 460, 73 S Ct 349)?
The facts are clear. The warrants involved in this case
constitute the third consecutive original criminal proceeding
which appellee State has made appellants defend for playing
on this golf course.
The first original proceeding was a set of warrants in
the Greensboro Municipal-County Court, charging a criminal
trespass upon the property of "Gillespie Park Golf Course."
The second original proceeding was a set of indictments
in the Superior Court of Guilford County, charging the identi
67
cal acts to be a trespass upon the property of "Gillespie Park
Golf Club, Inc." (R 36-43)
The third original proceeding was the set of warrants in
Municipal-County Court which are involved on this appeal.
Four of the warrants charged a trespass upon the property of
"Gillespie Park Club, Inc."
(a) On a de novo trial in the Superior Court of the war
rants in the first original proceeding, "the prosecuting officer
obtained the permission of the Court to amend the warrants
so that they would read or describe the trespass as having
been committed on the premises of 'Gillespie Park Golf Club,
Inc.' . . (See Page 3 of Appellee's Motion to Dismiss in this
Court.) On the same page, appellee says:" . . . under local
practice this was a fatal variance. . . "
On appeal from the verdict of guilty, the State Supreme
Court held the amendment to be a "fatal variance." State v
Cooke et al., 246 NC 618, 98 SE 2d 885, reproduced on Page
55 of appellants' Statement as to Jurisdiction. The State Su
preme Court cited cases to indicate that this "fatal variance"
rule was well and long established in the State. (See Page 58
of Jurisdictional Statement.)
Appellants believe that any competent, careful, and ef
fective prosecutor, concerned about justice as well as prosecut
ing, and mindful of the expense, ordeal and embarrassment
of multiple criminal prosecutions for the same offense, would
have known this "fatal variance" rule, and hence would have
started over again without amending the warrants and forcing
appellants to tria l and appeal, only to have to defend again
and again against subsequent criminal prosecutions for the
same alleged offense.
Appellants respectfully suggest that, for the prosecutor
under these circumstances to request and to receive permis
sion for such a "fatal-variance" amendment, and to force
appellants to defend against such an amendment and to
appeal the guilty verdict under the same in order to protect
their "constitutional rights" show either the kind of incompe
tency or the kind of casualness or the kind of ineffectiveness,
68
and hence the kind of fundamental unfairness, which the Due
Process Clause forbids in state prosecutors in criminal pro
ceedings.
(b) Without finally disposing of the warrants as originally
drawn in the first proceeding (only the amendment was held
invalid by the State Supreme Court and so far as the record
is concerned the original warrants in the first proceeding are
still outstanding charging a criminal trespass upon Gillespie
Park Golf Course), the State caused indictments in the Superior
Court to be found against appellants, as the second original
proceeding charging the identical acts as a trespass upon the
property of "G illespie Park Golf Club, Inc." (R 36-43)
A State statute then in force (GS 7-64) had deprived
the Superior Court of jurisdiction under these indictments be
cause, as the State Supreme Court said, the offense charged
was only a misdemeanor (R 109-110), but the State required
appellants to defend against these indictments in court and
when they were called for tria l, the State's prosecutor took
"a No! Pros with leave" in said indictments (R 43), thus leaving
them on the record as pending against appellants. State v
Smith, 129 NC 546, State v Williams, 151 NC 660.
Appellants believe that a competent, careful and effec
tive prosecutor, concerned with justice as well as with prosecu
tion, would have been familiar with this statute of his State
(GS 7-64) and would not have caused these indictments to be
found against appellants and would not have required ap
pellants to defend against these indictments in the teeth of
this statute.
Appellants respectfully suggest that to cause these indict
ments to be found and to require appellants to defend against
them under these circumstances show the kind of incompetency
or the kind of casualness or the kind of ineffectiveness, and
hence the kind of fundamental unfairness, which the Due
Process Clause forbids in State prosecutors in criminal proceed
ings.
(c) The warrants in the instant case constitute the third
original criminal proceeding which the State has brought
69
against appellants for the identical acts charged to be the
crime of trespass in this case. Appellants verily believe that
the only reason why there have been three successive criminal
proceedings instead of one, was "merely in order to allow
a prosecutor who has been incompetent or casual or even
ineffective to see if he cannot do better a second time" (See
Brock v North Carolina, supra.), and in this case a third time.4
In its opinion in 246 NC 518, the Supreme Court of
North Carolina said: " I f the rightful possession is in one other
than the person named in the warrant or bill, there is a fatal
variance." In accordance with this rule, the North Carolina
Supreme Court held on its own motion that there was such a
"fatal variance" between the name "Gillespie Park Golf
Course" in the warrants and the name "Gillespie Park Golf
Club, Inc." as the one claimed in the amended warrants and
proof to have "the rightful possession."
In the teeth of this holding the prosecutor in four of the
warrants here involved alleged that the premises belonged to
"Gillespie Park Club, Inc.", while in two of the warrants he
alleged that the premises belonged to "Gillespie Park Golf
Club, Inc."
Appellants believe that this obviously indicates the pros
4The lack of care and competence with which the prosecutor ap
proached this case is further shown by the fact that the warrants here
involved against Phillip Cooke (R 2,) Leon W olfe (R 7), George
Simpkins, Jr. (name also misspelled, R 10), and Joseph Sturdivent (R 14),
say that the alleged trespass was upon "the premises of Gillespie Park
Club, Inc.," (Emphasis added.), and only the warrants against Samuel
Murray (R 18) and Elijah H. Herring (R 22) say that the alleged tres
pass was upon "the premises of Gillespie Park Golf Club, Inc.," (Em
phasis added.)
There was thus just as much of a variance between the name of
the alleged possessor of the golf course in four of the warrants
which are involved upon this appeal, as in the firs t set of warrants
discussed by the Supreme Court of North Carolina in its first opinion in
246 NC 518, where the warrants charged a trespass upon the property
of "Gillespie Park Golf Course," while the amended warrants and proof
showed an alleged trespass upon the property of "Gillespie Park Golf
Club, Inc."
70
ecutor's indifference to the number of criminal proceedings
he might require appellants to defend against for the same
alleged trespass upon Gillespie Park Golf Course, and also
indicates the prosecutor's confidence that, if the Supreme Court
of North Carolina had again of its own motion noticed the
"fatal variance", prosecutor would again be allowed "to see
if he cannot do better" (See Brock v North Carolina, supra) in
a fourth criminal proceeding against appellants for the same
alleged trespass in this case.
But, either by oversight, or change of rule between the
two opinions (See North Carolina Supreme Court's opinion in
this case, where in the statement of facts it is said that the
warrants charged a trespass "upon the premises of Gillespie
Park Club, Inc.," (R 108) the Supreme Court of North Carolina
did not of its own motion notice the "fatal variance" between
the name "Gillespie Park Club, Inc., in the warrants and the
name "Gillespie Park Golf Club, Inc." as the one claimed in
the proof to have "the rightful possession."
Appellants believe that this oversight or change of rule
between opinions by the Supreme Court of North Carolina
discloses fundamental unfairness and lack of due process and
equal protection, and gives judicial approval to a prosecutor
who has been "incompetent or casual or even ineffective" (See
Brock v North Carolina, supra) in prosecuting successive crimi
nal proceedings against appellants for the same alleged of
fense.
This Court is familiar, of course, with the expense and ordeal
and embarrassment of such multiple, successive criminal pros
ecutions for the same alleged offense, and appellants respect
fu lly submit that the three successive original criminal proceed
ings disclosed in this case for the same acts of playing golf
on this public golf course amount to the kind of undue harass
ment and fundamental unfairness which the Due Process Clause
forbids.
71
ARGUMENT 111
TH E Q UESTIO N OF JUDICIAL NOTICE
Insofar as the Question of Judicial Notice should become
important in this case, appellants believe that it may cut across
both the question of Jurisdiction and the Case on the Merits.
Therefore, this question is given separate treatment. The Ques
tion is:
What documents or facts which may become germane to
a decision of this case come within the principles under which
this Court w ill take judicial notice of such documents and facts?
(1) Documents Representing Federal Court Proceedings
It seems clear that this Court w ill take judicial notice of
documents representing Federal Court proceedings. In Brown
v Board of Education, 344 US 1, 3, 97 L ed 3, 4, 73 S Ct 1,
this Court said:
"Th is Court takes judicial notice of a fourth case, which
is pending in the United States Court of Appeals for the
District of Columbia Circuit, Bolling et al. v. Sharpe et al.,
No. 11,018 on that court's docket. In that case, the appel-
ants challenge the appellees' refusal to admit certain
Negro appellants to a segregated white school in the
District of Columbia; they allege that appellees have
taken such action pursuant to certain Acts of Congress;
they allege that such action is a violation of the Fifth
Amendment of the Constitution." (Emphasis added.)
It w ill thus be noted that this Court took judicial notice even
of the pleadings in the Bolling Case.
In Wells v United States, 318 US 257, 260, 87 L ed 746,
748, 63 S Ct 582, this Court said:
"N o r can we say that there is want of support for the
district court's recital in its order that 'the matters and
things' contained in the application to set aside the con
viction 'have heretofore b e e n adjudicated.' F o r the
Government's brief points out that petitioner, before his
application to the district court in this proceeding, had
72
unsuccessfully sought release from custody in two habeas
corpus proceedings, of which the Federal Courts may
take judicial notice, both brought in the Northern Dis
trict of California. In the second, there was a hearing
in which he testified in his own behalf; other evidence was
taken both oral and documentary, and the court made
findings of fact contrary to the allegations of fact on
which petitioner now relies. We cannot say that the dis
trict court in this case was unfamiliar with those proceed
ings, merely because they do not appear in the record
before us." (Emphasis added.)
In United States v John J. Felin & Co., 334 US 624, 640,
92 L ed 1614, 1626, 68 S Ct 1238, this Court said:
"The prior proceedings between the same parties as to
which we would be blind not to take judicial notice, as
well as the unquestioned facts pertaining to the meat in
dustry are relevant to interpret the findings of the Court
of Claims."
(2) Documents Which Represent Federal Law
The Supremacy Clause of the Federal Constitution says
that "the Judges in every State shall be bound" by "the su
preme Law of the Land" (Emphasis added.) "any Thing in the
Constitution or Laws of any State to the Contrary notwith
standing." Thus it has been held that the duty "rests upon 'the
State courts, equally with the courts of the Union, . . . to guard,
enforce, and protect every right granted or secured by the
Constitution of the United States . . / " Irvin v Dowd, supra.
It seems to be well settled that courts w ill take judicial
notice of all matters of Federal law. In Pocahontas Terminal
Corporation v Portland Building and Construction Trades Coun
cil, 93 Fed Supp 217, 219, it is said:
"W hile the complaint itself makes no mention of this
statute and only incidental reference to the National La
bor Relations Board, this Court takes judicial notice of
any Federal laws necessarily brought into play by the
allegations of the complaint; and it is immaterial that
specific reference to such laws may be omitted in the
73
pleading. Southern Pacific Company v Steward, 1917,
245 US 359, 362, 38 S Ct 130, 62 L ed 345 . . "
In the Southern Pacific Company Case, cited in the Poca
hontas Case, it is said:
"W hile there is no specific allegation in the complaint
that such bill of lading or receipt was issued, as the law
makes it the duty of the carrier to issue the same the
presumption is that such duty was complied w ith." (245
US at 362)
it thus appears that judicial notice w ill be taken of all
matters of Federal law. The Supreme Court of North Carolina
has held that "in construing a Federal statute, a state court is
bound by the construction placed on it by the Federal courts."
Mangum v Atlantic Coast Line Railway, 188 NC 689.
This raises the question as to what is included in "the
supreme Law of the Land" as envisaged by the Supremacy
Clause of the Federal Constitution.
In Garner v Teamsters, supra, this Court said: "W e con
clude that when federal power constitutionally is exerted for
the protection of public or private interests, or both, it becomes
the supreme law of the land." (Emphasis added.)
Certainly a Federal Court's Declaratory Judgment and
its Findings of Fact and Conclusions of Law, as well as its
Opinion, which are clearly authorized by the Federal Declara
tory Judgment Act, 28 USC 2201, represent actions "when fed
eral power constitutionally is exerted," and as such become
a part of Federal law and "the supreme law of the Land." In
this case the North Carolina Supreme Court held that it was
required to take judicial notice only of the "published opinion"
of the United States District Court for the Middle District of
North Carolina. "O ur knowledge of the facts in that case," the
State Supreme Court said, " is limited to what appears in the
published opinion." (R 115) Appellants believe that there is
no valid basis for drawing a distinction between the exertion
of Federal power in the Federal Court's opinion and its exer
tion in the Declaratory Judgment and its supporting Findings.
74
In Bowles v United States, 319 US 33, 35, 87 L ed 1194,
1196, 63 S Ct 912, this Court said the following in connection
with its use of judicial notice in application of Federal law:
"On the argument before us the Government, which in
the district court had denied petitioner access to his Selec
tive Service file, produced from the file, and tendered
for our consideration (1) a copy of petitioner's appeal to
the President from the action taken by the appeal board,
(2) a copy of the decision on that appeal rendered by the
Director of Selective Service, by authority of the President
and pursuant to Section 628.1 of the Selective Service
Regulations, and (3) a copy of the letter of the draft
board notifying petitioner that upon his appeal to the
President his classification had been affirmed and that he
would therefore be ordered to report for induction.
"The decision of the Director, of which we take judicial
notice . . . " was held to be a "controlling determination
of fact . . . " (Emphasis added.)
In Lilly v Grand Trunk Western Railroad Company, 317
US 481, 488, 87 L ed 411, 416, 63 S Ct 347, this Court said:
"Respondent insists that reliance cannot be placed on
Rule 153 because it was not called to the attention of the
tria l court or the jury and its injection now would involve
deciding the case on issues not submitted to the jury. We
do not regard this point as well taken. No claim is advanc
ed that the rule is invalid, and we see no reason for
questioning it. Adopted in the exercise of the Commis
sion's authority, Rule 153 acquires the force of law and
becomes an integral part of the Act . . ., to be judicially
noticed." (Emphasis added.)
(3) Judicial Notice of Public Documents
In Zahn v Transamerica Corporation, 162 Fed 2d 36,
48, the Court says: "W e may take judicial notice of the plead
ings in the Neff case since they are public documents." The
Neff Case was a State Supreme Court case, 232 Ky 66.
(a) Judicial Notice in Applications of Federal Law
75
In Schulte v Gangi, 328 US 108, 120, 90 L ed 1114, 1122,
68 S Ct 925, this Court said: "W e will take judicial notice, as
a matter of common knowledge, that New York City produces
more garments for interstate shipment than any other city in
the Nation." (Emphasis added.)
In Parker v Brown, 317 US 341, 363, 87 L ed 315, 333, 63
S Ct 307, this Court took judicial notice of "available data of
the raisin industry in California."
(5) General Principles and Philosophy of Judicial Notice
In the book, "Evidence—Cases and Materials"—Morgan,
Maguire and Weinstein (1957) Chap. 1, "Judicial Notice,"
Page 11, Mr. Justice Frankfurter is quoted as making the fol
lowing observations in an exchange with counsel upon oral
argument:
"I am merely going to the point that in these matters
this Court takes judicial notice of accredited writings, and
it does not have to call the writers as witnesses. How to
inform the judicial mind, as you know, is one of the most
complicated problems. It is better to have witnesses, but
1 did not know that we could not read the works of ac
credited writers."
In Morgan, "Judicial Notice," (1944) 57 Harvard Law
Review, 269, 286, the general view is taken that anything is
subject to judicial notice which " is capable of immediate ac
curate demonstration by resort to readily accessible sources
of indisputable accuracy."
In "Sense and Nonsense About Judicial Notice" (1950)
Keefe, Landis and Shaad, 2 Stanford Law Review 664, the
authors say:
"W e know that not every fact is proved during the
course of a lawsuit—manifesto probatione non indigent
(what is known need not be proved). Th is practice has its
roots far back in the civil and canon law. It is part and
parcel of legal or judicial reasoning, no step of which
(4) Judicial Notice of Matters of Common Knowledge
76
can be taken without assuming something that has not
been proved. The capacity to perform this process with
competent judgment and efficiency is imputed to judges
and jurors as part of their necessary mental outfit."
(6) Judicial Notice in the State Courts
The North Carolina State Supreme Court took judicial
notice of "the published opinion" of the Federal Court in the
Simkins Case, 149, Fed Supp 562, saying: "O u r knowledge of
the facts in that case is limited to what appears in the publish
ed opinion." (R 115—-Emphasis added.)
Appellants filed a formal motion requesting the Supreme
Court of North Carolina to take judicial notice of records in the
Simkins Case, certified copies of which were tendered for the
convenience of that Court. (R 128—See Bowles v United States,
supra.)
In the Motion to Quash filed in the Superior Court appel
lants requested that court "to receive and consider the record
and judgment roll in the Federal case." (R 33) Th is request was
repeated by reference in the Motion to Set Aside the Verdict.
(R 92) Appellants believe that this was an adequate bringing
of the Federal Court records to the attention of the trial court
for purposes of judicial notice. Appellants also specifically re
quested the trial court "to take judicial notice of this matter of
common knowledge" about racial discrimination at the golf
course. (R 93) Of course, the Federal Court records were form
ally offered in evidence but refused admission by the trial
court. (See Appendixes 4(a) and 4(b), Pages 97, 98.)
CONCLUSION
Wherefore, appellants pray that this Court enter an order
as follows:
1. Taking jurisdiction of this appeal under 28 USC 1257
(2) or, in the alternative, treating the appeal papers as a
Petition for Certiorari under 28 USC 2103 and granting such
Petition.
2. Declaring that Section 14-134 of the General Statutes
77
of North Carolina, as construed and applied in this case, col
lides unconstitutionally with Paragraph 2 of Article VI (the
Supremacy Clause) of the Constitution of the United States:
(a) In that said statute has been used here by the State
to implement the State's policy of making a "private club" out
of Gillespie Park Golf Course, contrary to the policy of applic
able Federal law that said golf course should be a public golf
course offering "the greatest degree of public usefulness."
(b) In that said statute has been further used here by
the State to implement a State policy directly contrary to the
agreement made by the State's agencies with the United States
Government that this golf course would be a public golf course
during its useful life and would not during such useful life "be
leased, sold, donated, or otherwise disposed of to a private
individual or corporation, or quasi-public corporation."
(c) In that said statute has been used here by the State
to frustrate and render ineffectual the Declaratory Judgment
of the United States District Court for the Middle District of
North Carolina in Simkins et al. v City of Greensboro et al.,
149 Fed Supp 562.
3. Declaring that Section 14-134 of the General Statutes
of North Carolina, as construed and applied in this case vio
lates the Due Process and/or the Equal Protection Clauses of
the Fourteenth Amendment to the Constitution of the United
States as follows.-
(a) In that in the trial of this case the State closed the
mouths to the truth of key witnesses, so that evidence material
to appellants' defense was suppressed by the State's rules of
evidence.
(b) In that the State in this case has unduly and un
constitutionally harassed appellants by multiple criminal pro
ceedings allowed by the State only to permit a prosecutor who
has been either "incompetent or casual or even ineffective" to
see if he could not do better a second or a third time.
(c) In that appellants were denied the use of Gillespie
Park Golf Course by the State's agencies because of the race
78
or color of appellants, and further in that appellants were
arbitrarily denied use of Gillespie Park Golf Course because
of the absence of standards to govern the State's agencies in
the exercise of the authority granted them to determine who
could and who could not play on said golf course.
4. Protecting and effectuating the above mentioned De
claratory Judgment of the United States District Court for the
Middle District of North Carolina by such process as to this
Court may seem just or proper.
5. Directing the Supreme Court of North Carolina to take
appropriate steps to require the State's agencies to abide by
their agreement with the United States Government covering
said Gillespie Park Golf Course.
6. Ordering appropriate proceedings in the State courts
to set aside the convictions and jail sentences now outstanding
against appellants in this case, and to release appellants en
tire ly therefrom and to release the sureties on the bonds of
appellants.
7. Reversing the judgment of the Supreme Court of North
Carolina in this case.
8. Giving to appellants such other and further relief as
to this Court may seem just and proper under the facts and
circumstances of this case.
Counsel of Record for Appellants:
J. Alston Atkins
Other Counsel for Appellants:
Harold L. Kennedy
Annie Brown Kennedy
C. O. Pearson
Carter W. Wesley
James M. Nabrit, Jr.
H. Carl Moultrie, I
79
4 City of Greensboro, A ppellant, v.
FACTS
In 1940, City of Greensboro and The Greensboro City
Board of Education joined in an application to the Works
Progress Administration of the United States government
for funds with which to construct a nine-hole golf course
on property owned by the school board. The application
was approved, and the City and the W.P.A. constructed
the course. The property was then leased to the City by
the school board. Until 1949, the City operated the golf
course exclusively for white citizens.
In 1949, at the request of the City, the City and the
school board, in two separate leases, leased to Gillespie
Park Golf Club, Incorporated, a private corporation, the
original nine-hole course which was on school board pro
perty, and enough adjacent land owned by the City for an
additional nine holes. In 1950, the City constructed an
additional nine holes on its land, which it had reserved
the right to do under the lease.
Also in 1950, the City constructed a nine-hole golf
course for Negroes at Nocho Park and leased it to Nocho
Park Golf Club, Incorporated, a private corporation.
Statements by the City Accountant show the net ex
penditures (total expenditures minus total income) on
both courses to be the same— approximately fifteen thou
sand dollars for each. (Appendix, p. A26-A28.)
From the date when these golf courses were leased to
private corporations, the lessees have had full control and
management of the golf courses. No lease provides for any
racial segregation of these facilities.
In November and December of 1955, Negroes sought
to use the facilities of the Gillespie Park Golf Course, and
were denied such use by employees of the Gillespie Park
Golf Club, Incorporated.
APPENDIX 1 (a)
80
APPENDIX 1 (b)
George Simkins, Jr., et. al., A ppellees 7
i f it operates them, and it has never asserted the right of its
lessee to do so. All it asks is a dismissal of the action as
to it .
POINT 2. THE DISTRICT COURT ERRED IN
FINDING AS A FACT AND CONCLUDING, AS A
M ATTER OF LAW, THAT AN AGREEM ENT
EXISTED AMONG APPELLANT CITY OF GREENS
BORO, THE GREENSBORO CITY BOARD OF EDU
CATION, AND THE UNITED STATES GOVERN
M ENT, THAT APPELLANT CITY OF GREENSBORO
WOULD “M AINTAIN AND OPERATE SAID GOLF
COURSE FO R THE USE AND BENEFIT OF THE
PUBLIC DURING THE USEFUL LIFE OF SAID
GOLF COURSE.”
POINT 3. THE DISTRICT COURT ERRED IN
FINDING AS A FACT THAT AN AGREEM ENT
EXISTED AMONG APPELLANT CITY OF GREENS
BORO, THE GREENSBORO CITY BOARD OF EDU
CATION, AND THE UNITED STATES GOVERN
M ENT, THAT THE GOLF COURSE PROPERTY
WOULD NOT BE “LEASED, SOLD, DONATED OR
OTHERWISE DISPOSED OF TO A PRIVATE INDI
VIDUAL OR CORPORATION, OR QUASI-PUBLIC
CORPORATION, DURING THE USEFUL LIFE OF
SAID GOLF COURSE.”
(The arguments on Points 2 and 3 would be repetitious
i f stated separately, so they are combined for brevity.)
The issues involved in these points are raised by Finding
of Fact No. 20 and Conclusion of Law No. 3 ( Appendix,
pp. A10-A11 and A15, respectively), which are apparently
based upon provisions found in appellees’ (plaintiffs’) Ex
hibit No. 19. (Appendix, pp. A24, A25.) In their appli-
81
8 C ity o f G reensboro , A p p e l l a n t , v.
cation for federal funds with which to build the original
nine-hole golf course on school property, the applicants
were asked:
“ 18. Is it contemplated that public property to be
improved by this project will be leased, sold, donated
or otherwise disposed of to a private individual or
corporation, or a quasi-public organization, during
the useful life of such improvement? no If
(Yes or no)
‘Yes,’ a complete explanation must accompany the
application.” (Emphasis supplied.) (Appendix p.
A24.)
On the reverse side of the page are the following in
struction's for answering question No. 18:
“Item 18. Property to be improved by a WPA pro
ject must be used for the conduct of normal Govern
mental functions and for the benefit of the public.
Before any proposal may be accepted by this Admin
istration, it must be established that the sponsor
intends to use the property for public purposes during
the useful life of the improvements to be made under
the project. If the question in item 18 is answered
‘Yes,’ complete explanation and documentation must
accompany the application in order that the public
benefit may be established.” (Appendix, p. A24.)
(Emphasis supplied.)
Appellees contended, and the District Court found, that
this language constitutes an agreement which binds the City
and the school board to operate and maintain the golf
course during its useful life, and not to lease it to a private
corporation during this period. But the District Court up
held the validity of the leases, and, in its decree and In
junction, specifically excepts, from the prohibition against
disposal of the property a “bona fide sale.” (Appendix,
p. A22.) Consequently, Finding of Fact No. 20 and Con
clusion of Law No. 3 are in conflict with Paragraph No. 1
of the decree.
APPENDIX 1 (c)
82
GREENSBORO DAILY NEWS
Published Every Day In the S ea r By Greensboro Newt Comsany
E. B. JEFFRESS ................................... R esident MILES H. WOLFF ......................... Executive Editor
APPENDIX 2 (a)
C. O. ........................................................ General Manager
B. W. KENDALL ...................................... Editor
WILLIAM D. SNIDER ........................ Associate Editor
Page 4. Sec. D SUNDAY,
Giye And Take
Out of Raleigh and Richmond Friday
afternoon came the double-whammy of
two judicial decisions—one state and one
federal—demolishing w ith obvious final
ity resistance of the City of Greensboro
to opening of Gillespie P ark Golf Course
to Negroes.
In the S tate Supreme Court case, a
Superior Court finding of guilt against
six Greensboro Negroes for “trespassing”
on golf course premises was knocked
down, largely on grounds of technicality
(an amended w arran t) , bu t knocked
down all the same.
In the U.S. Fourth Circuit Court of
Appeals case, the decision of Judge John
son J. Hayes denying discrimination by
race was tersely upheld, and the only
recourse open to the city was an appeal
to a court even more firm ly staked out
on the issue.
W. S. BARNEY. JR . ............. ........................ Treasurer
GEORGE W. LEMONS ................. Advertlaln* Director
E. D. NICHOLS ........................... Circulation Manager
JUNE 30, 1957
On Golf Courses
Appeal of the case, we think, was fool
ish from the beginning. Experience in
High Point, Charlotte and Asheville
shows th a t dropping of racial restrictions
m akes scarcely no difference in golf
course operation. There is some racial
break-through, yes, hu t it bothers few
if any w hite patrons; and the initial
break-through—that is, elimination of the
stigma—does not ordinarily b ring on a
deluge.
I t would seem far better in the case of
golf courses, libraries, busses and sim ilar
fields for the white South to find some
means of adjustm ent to change; ju st as
i t would seem judicious indeed for Negro
citizens to refra in from pushing the ir
luck in swimming pool experiments and
wholesale public school integration.
The South w ill adjust to some change—
even where i t has exhausted all its legal
resources—unless i t is pushed too hard.
83
APPENDIX 2 (b)
SECTION B— 8 PAGES
TUESDAY, AUGUST 6 , 1 9 5 7
City Gives
I t Intends To End
Golf Club Lease
The Greensboro City Council yesterday gave a 10-
day notice to the Gillespie Park Golf Club Inc. that the
city intends to cancel the club’s lease and take over as
sets of the club.
The club was named a defendant, with the city, in
a suit brought in Federal Court by Negroes claiming
they had been denied admission to the city-owned
course. The city and club lost the case. The city’s lease
to the club was declared valid
by the court, but the court, rul
ing the club was an agency of
the city, stated that Negroes
could not be denied use of the
course.
Notice of cancellation of the
club’s lease brought “no com
ment” from the president of the
club, John R. Hughes.
City councilmen stated in their
resolution that the club had aban
doned the golf course and had
failed to keep the club house and
golf course in a good state of
repair.
To Take Over Assets
They also notified the club that
the council intended to take over
all assets of the club, which was
listed as a nonprofit, nonstock
corporation.
On recommendation of City
Manager James R. Townsend, the
council accepted a cash settle
ment of $7,354 for fire damages
to the club house. The cash was
taken in preference to repairing
the structure.
In other action, the council
postponed for two weeks the
adoption of a resolution ordering
paving on Florida Street from
High Point Road to Hardie Street.
Three owners of tracts in the
right of way told the council they
could not afford assessments for
the improvement.
84
Mft
_________________ Tuesday, August 13, 1957
APPENDIX 2 (c)
City Council
espie Course
Hearing Is Set
For Committee
Here Thursday
BY HAWK JOHNSON
Record Staff Writer
A petition urging the
city to reopen Gillespie
Park Golf Course has been
prepared for presentation
at Greensboro City Coun
cil committee s e s s i o n s
Thursday.
The petition containing names
of 328 white and Negro persons
asks the Gillespie Park Golf Club
and the Council of the City of
Greensboro “ to reopen Gillespie
Park as a municipal golf course
for the recreation of residents of
the City of Greensboro.”
The petition has been placed
on the agenda for discussion
by the city council’s real estate
committee when the four coun
cil committees go in session
at 2 p.m. Thursday in council
chambers.
The request is the latest step
in a series of events concerning
the South Greensboro recrea
tional facility which began last
October when 10 Greensboro Ne
groes filed suit against the golf
club, city and Greensboro Board
of Education. The 10 sought raci
ally integrated use of the 18 hole
course which was operated by a
private club leasing land from
the city and school board. A fed
eral court order gave the 10—
and other Negroes “similarly
situated”—permission to use the
course along with white resi
dents, a decision upheld by the
U.S. Fourth Court of Appeals.
The integration order signed
by Federal Judge Johnson J .
Hayes followed by one day the
announced decision of John R.
Hughes, Gillespie Park Golf Club
Inc., president, that operations a t
the course were suspended due
to a fire which destroyed part of
the clubhouse.
Only last week, city council
gave notice to Gillespie Park
Golf Club that the city will
cancel its lease—which would
have expired next April — on
Aug. 15 (day of the committee
session). City councilmen, in a
resolution approved for cancel
lation of the lease noted that
the club had breached the lease
by failing to keep the clubhouse
and golf course In a state of
good repair. They notified the
club that council Intends to
take over all assets of the
club—a nonstock, nonprofit cor
poration.
The council also accepted a
cash settlement of $7,354 for dam
ages to the clubhouse because of
fire.
Control of the course is still in
doubt, however. The Greensboro
Board of Education owns half of
the course property containing
half of the 18-hole layout. The
board has given no indication of
plans to cancel its lease with
the golf club. Nor has the city
announced what plans, if any, it
has for the property, including
the clubhouse, it holds title to.
The property has been zoned
for industrial purposes and could
be sold. Any sale, however, must
be approved by the federal court
which noted in its integration or
der that “a bona fide” sale of the
property must be given court ap
proval.
The petition bears signatures
of several of the plaintiffs in
the federal court action, names
of a few ministers, both white
and Negro residents of Greens
boro and several with out-of-
town addresses.
I t will be presented to the
council real estate committee
composed of William Folk Jr.,
chairman; Tom E. Brown, vice
chairman; J . M. Denny and Al
bert F. Stevens Jr,
The public works committee,
headed by William B. Burke, will
consider recommendations for
water and sewer installations on
Buff and Barringer Streets, re
port of curb and gutter deficien
cies, widening of 16th Street and
curb and gutter installation, pre
liminary resolutions calling for
public hearings on laying water
and sewer lines along several oth
er city streets.
The transportation committee
will be asked to deny taxicab op
erator’s permit to Lewis E. Tur
ner.85
A P P E N D IX 2 (d)
B1Q—The Greensboro Record, Friday, August 16, 1957
Council To Decide Monday
On Future Of Golf Course
The question of what to do with
a city owned golf course will be
before Greensboro City Council
again Monday following hearing
of a request yesterday to open
Gillespie Golf Course.
City councilmen, sitting in com
mittee sessions, voted to send
the request to council at 2:15
p.m. Monday without recom
mendation.
A delegation of former Gilles
pie Park golfers, led by J. B.
Daniely of 2514 Walker Ave., ap
peared before the real estate
committee to ask that the golf
facilities be reopened. The course
was closed to play June 27 by
the Gillespie Park Golf Club Inc.,
a day before a federal court or
der was handed down prohibiting
segregating golfers by races. The
club, a non-stock, non-profit cor
poration, operated the course un
der a lease agreement with the
city and the school board, prop
erty owners.
Ernest Edwards, golfing pro
fessional at the course, declared
a “dire need” for the facility ex
ists, explaining that 22,OOQ rounds
were played there last year.
J . Kenneth Lee, Negro attor
ney, pleaded for improved main
tenance at Nocho Park Golf
Course for Negroes and insisted
that there is a need for both golf
ing facilities.
An earlier motion by Council
man Tom Brown to send the re
quest to the Parks and Recrea
tion Commission for study was
defeated 4-3 before committee
men decided to refer the peti
tions to a full council meeting
without recommendation.
Other matters heard during
committee sessions included a re
quest by Mayor George H. Roach
to the Guilford Health Depart
ment for 500 doses of Asiatic flu
vaccine to protect city workers.
A request for $10,000 to erect
a footbridge over North Buffalo
Creek to provide access to Kiser
Junior High School was sent to
Monday’s council meeting with
out recommendation as was a
request by the Guilford Humane
Society for an addition of $1,500
to the 1957-58 appropriation to
ward a county-Greensboro animal
shelter.
Committeemen approved hear
ings on public necessity installa
tion of curb and gutter on 16th
Street, water and sewer on Buff
Street and paving on Barringer
Street.
86
A P P E N D IX 2 (e)
B I2 — The Greensboro Record, Tuesday, August 20, 1957
Permanent Closing Is Decreed
For Gillespie Park Golf Course
Gillespie Park Golf Course, al
ready overgrown with grass and
weeds, has been sealed off from
play by the Greensboro City
Council, which yesterday ordered
permanent closing of the recrea
tional facility.
By unanimous vote of council,
a resolution was passed ending
play on the once popular recrea
tional facility—one that has seen
more than 175,000 rounds of golf
played since the course was en
larged to 18 holes in 1950.
In voting to close the course at
which a federal court order
would allow integrated golfing,
the council resolution pointed
out that only a portion of the
land is owned by the city and
that portion is “inadequate for an
18-hole course.” “Funds are not
on hand” for operating the fa
cility, the resolution stated, with
the city having lost revenue this
year from intangible taxes, and
the city could not afford to spend
money on golf course improve
ments without jeopardizing other
recreational projects.
In 1940, the city and the city
board of education, each owning
approximately 75 acres of prop
erty off South Asheboro Street,
applied for Works Progress Ad
ministration funds to build the
course. The property was leased
to the city by the school board
and until 1949 the city operated
the course for white citizens.
Then, the city and board in two
separate leases granted control
to Gillespie Park Golf Club Inc.,
a private corporation. In 1950,
the city constructed an additional
nine holes on its portion of the
property. (Also in 1950, the city
built a nine-hole golf course for
Negroes at Nocho Park.)
Last October, 10 Greensboro
Negroes filed suit in federal court
against the golf club, the city and
school board, asking permission
to play Gillespie Park. That re
quest was granted by the district
court and upheld by a June 28
ruling of the U.S. Fourth Circuit
Court of Appeals.
Golf club directors, however,
on June 27 had announced deci
sion to close the course following
a fire which destroyed a portion
of the clubhouse. The city coun
cil recently voted to terminate its
lease with the golf club as of
Aug. 15 because the club had
ceased to operate the facility and
had failed to maintain the course
property. The school board has
not acted to cancel its lease with
the club.
Attendance and participation
records compiled eaoh year by
The Greensboro Record showed
22,803 rounds of golf were played
at Gillespie Park in 1956, less
than 2,000 rounds under Green
Valley Golf Course, a private
golf course Which led all Greens
boro area golfing facilities in
numbers of rounds played.
Nine year totals for Gillespie
participation—as far back as rec
ords go, show 178,007 rounds had
been played there by the first of
this year. There are no records
for play on the South Greensboro
course for 1957.
The council resolution not'
that the golf course site :'
able for “expanded
cilities,” leading
late that the p
utilized for a If
use. Others c
erty may be s
purposes. An;
must be approv
court which re
in disposal of i
87
B2__Greensboro Daily News, Tuesday, August 20, I9S7 APPENDIX 2 (f)
City Golf Course
Ordered Closed
Permanently
The Gillespie Park Golf Course, closed since a fire
damaged the clubhouse in late June, was ordered per
manently closed by the Greensboro City Council yes
terday.
Action was by unanimous vote of the council. It
brought to an end the speculation created by the
presentation of a petition to the council last week re
questing that the course be reopened. Couneilmen took
no action regarding the nine-hole
Negro course known as Nocho
Patk although a Negro minister,
Rev. J . T. Douglas, pastor of
St. James Presbyterian Church,
gave an impassioned speech ask
ing that the Gillespie and Nocho
courses be improved.
The council resolution closing
Gillespie stated that only a por
tion of the course (nine holes be
longing to the city school board)
was under control of the city,
and that portion was insufficient
to provide an adequate course.
(The city was under court or
der to desegregate the Gillespie
course just prior to the fire.)
Other Needs Cited
Also, the council found that the
city had need for expanding serv
ice facilities. That was inter
preted to indicate the possibility
that the city might use the area
for a land fill for waste use.
The resolution stated, too, that,
with the city having lost reve
nue from intangible taxes (esti
mated at $100,000), it could not
afford to spend money on golf
course improvements without
jeopardizing o t h e r recreation
projects.
After the resolution was read,
a resident of the Gillespie Park
neighborhood, George A. Minnish,
objected to Negro children “run
ning through there,” objected to
t
5
seg-
as-
ncil-
lents
yard
an
mid
ares
two
pro-
rida
hey
3.50
hat
oot,
•es-
old
W.
and
the
.ncil
is-
>r a
l at
■reet
83 3ian
the Gillespie and Nocho courses
being operated by the city and
urged the council to close both
courses.
Couneilmen Reminded
Describing golf as a “vital part
of our community life,” Rev. Mr
Douglas reminded couneilmen
that recreational facilities and
schools are two elements “ se
riously considered by new indus
tries which might be interested
in locating here.”
He said the council’s proposal
to close the Gillespie course was
a “ step backward” at a time
when “we shoud be working to
gether to make progress” in in
terracial relations. The council,
he added, might improve rela
tions by improving neighborhood
recreation areas.
Before concluding Ms talk on
harmony and Christian conduct,
the minister asked God’s bless
ing on the council in the decision
they were to make.
The preacher’s remarks were
followed by a short statement
from Eugene Hood, recognized
anti-integrationist.
Wants Course Closed
“ I’m in favor of closing the
golf course,” said Hood. “There
are a hundred acres out there
you’ve been providing for a hand
ful of golfers. . . Golf is an ex
pensive game. , . , And you
shouldn’t spend taxpayers’ money
for such a small group.”
The council vote, all nine mem
bers voting to close the course,
followed.
No voice, other than the min
ister’s, was raised against the
closing. Last Thursday, however,
Ernest Edwards, golf profes
sional, p r e s e n t e d a petition
signed by more than 300 persons
asking that the course be re
opened. Kenneth Lee, Negro at
torney, also asked that the course
be reopened and that Nocho Park
course be improved.
APPENDIX 2 (g)
The Mayor announced the appointment of the following committee- memberahi m
City-County Committee
D. Keaton Farnell, Chairman
J. M. Denny
Ton K, Brown
Ij Basse 1 N. Burch, City Clark of' the. Cit of
Greensboro, hereby certify this to. h a h rue
and exact copy of Page #190 of Minute Bo k #31
of the City Council of the City of' Green boro.
Witness my hand and the corporate s al of
the City of Greensboro, this the 6th day of
February, 1959
Veter Committee
William B, Burke, Chairman
K. 1. Zane
Elbert F. Lewis
J & f Ciex:
Councilaan Burke introduced the following reeolution and moved its
adaption. The motion was seconded by Councilman Denny, and the reeolution was
adopted on the following roll call vote: Ayes: Brown, Burke, Denny, Farnell,.-Folk
Lewis, loach, Stevens, and Zane. Noes: None.
BBSOLUTIOW TERMINATING THE LEASE OF THE GILLESPIE PAKJC GOIF
CODES* PROPERTY TO GILLESPIE PARK GOLF CLDB, INC., AND DIRECT
ING THE SDPERV0S08 OF PUBLIC PROPERTY TO TAKE POSSESSION OF
TEK OOLD COURSE AND ALL PROPERTY AND EQUIPMENT Of THE CITY
LOCATED THEREON AND ELSEWHERE
WHEREAS, Paragraph S of the lease of the Gillespie Park Golf
Course to Gillespie Park Golf Club, Inc., which is dated 7 April
1M9 and has been renewed until 7 April 1958, recites that it
is entered into for the purpose of permitting the Gold Club to
operate a golf course on the Golf Course property,and the Golf
Club has now abandoned the operation of the golf course;
WHEREAS, Paragraph 5 of the lease requires the Golf Club to
keep the club house and equipment and facilities located
therein and the personal property used in the operation of the
club house and golf course in good state Of repair, which
the Golf Club has failed to do;
WHEREAS, Paragraph 12 of the lase provides that the City reserves
the right to cancel the same upon ten days written notice to the
Club, upon the failure of the Club to carry out any prosivion
of the lease; and
WHEREAS, The Gillespie Park Golf Club, Inc,, was created a non
profit, non-etock corporation and no person, other than the City,
has invested any funds in the corporation or in the Golf Course
and its equipment, and the Golf Club has operated solely on funds
derived from the use of the Golf Course;
WOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
(BtEENSBORO:
1. That the City Attorney is directed to notify Gillespi*
lurk Golf Club, lac., of the cancellation of the above lease;
3. That the Supervisor of Public Property of the City is
directed, ten days from the adoption of this resolution, to take
possession of that portion of Gillespie Park Golf Course which is
owned by the City; the club house; the equipment which was turned
over to the Oolf Club under the terms of the lease and which is
listed in the lease by inventory; and all.property acquired by
and in the possession of the Golf Club including cash.
(Signed) William B. Burke
The City Manager advised the Council that the insurance company has offi
ed to settle the fire damage to the Gillespie Park Clubhouse tor the full mmemnt
of the damage, i.e. $7,354.00, and recommended acceptance of this amount. Council
man Zane introduced the following resolution and moved its adoption. The motion
warn seconded by Councilman Denny, and the resolution was adopted on the following
roll call rote: Ayes: Brown, Burke, Denny, Farnell, Folk, Lewis, Roach, Stevens,
and Zane. .Woes: Wone.
3515
RESOLUTION AUTHORIZING THE ACCEPTANCE OF PAYMENT FOR DAMAGES
TO GILLESPIE PARE GOUT CLUBHOUSE
WHEREAS, under the terms of a lsass, dated 7 April 19*9, and re
newed from time to tine, City of Greensboro is the beneficiary
of a fire Insurance policy covering the golf clubhouse at
Gillmple Park golf course;
WHEREAS, the clubhouse ham been damaged by fire to- such as ex
tent that it sill cost $7,354,00 to repair it; and
WHEREAS, City of Greensboro has been offered the full amount of
damages in settlement of the Insurance liability;
351$
T grM S M ' BE IT RESOLVED BY THE CITT COUKCXL OF THE CITY
89
APPENDIX 3 (a)
HID seal
A ss PREFACE
The Manual Of Rules and Regulations of the Work Projects Administration is designed for
issuance as a four-volume edition of all policy and regulatory procedures for the organiza
tion and operation of the Work Projects Administration. When completed, it will consist
©f the following volumes:
Volume 1 Organization and Administration
Volume 2 Project Planning and Operation
Volume 3 Employment
Volume 4 Finance
The Manual is issued in loose-leaf form-so astopermit the insertion or removal of pages
upon which additions or deletions of procedural statements are made necessary by changes
in policy or fact. Revised or added pages will be issued as needed, and the volumes shall
be kept up to date by all persons to whom issued and who are entrusted with the responsi
bility of operation of any phase of the program.
To permit ready reference, as well as to provide a simple method of numbering which will
allow expansion or contraction when needed, a page numbering system is provided based upon
a modified decimal plan. Each page dumber consists of three sets of numbers set off by
decimal points. The first series represents the volume number; the second series, the
chapter number within the volume; and the third, the page number within the chapter. As a
result, page 1 of chapter 1 of volume 1 would be identified by the number 1.1.001. Pages
are numbered in a decimal series of three digits, permitting a possible original issuance
of 999 .pages to a chapter. In this way, when it is found necessary to add a page between
two numbered pages (i.e., 1.3.015 and 1,3.016), the new page will be numbered as a fourth
digit of the decimal using the number of three decimal digits immediately preceding the new
page, (i.e,., 1.3.0155).
Volumes are divided into numbered chapters, and chapters into numbered parts. Further
subject divisions are identified by titles but not by numbers. In this way, complete new
subjects below a part division may be added without disturbing the subject numbering.
Revised pages will be identified by the following . statement in the lower inside of
the page "Revised (date) Additional pages will show "Added (date) ..."
Revised or added pages will be transmit ted by means of a series of four "Transmittal letters*"
one series for each volume and numbered consecutively for each series. The transmittal
letters will serve the following threefold purposes;
1. Transmit as an attachment the pages to be substituted or added and give instructions
for insertion,
2. State the new policy or the change is policy involved and the reason for such sew
policy or change in policy,
3. Give such nonrecurring instructions as are necessary to effect the new or changed
policy and the date such policy shall be made effective.
Ill
90
IV • PREFACE
APPENDIX 3 (b)
The material contained in this Manual sill have to remain flexible in order that changes
may be made to meet changing conditions or problems. Complete volumes will be issued in
limited number in order‘to facilitate maintenance of an accurate mailing list for the for
warding of revisions for the maintenance of the books. It is the responsibility of all-SPA,
employees to maintain the material>on a current basis and to insert or substitute all addi
tional or revised pages received. Transmittal letters shall be detached and filed separately.
la accordance with the authority vested in tne Commissioner a Work Projects by the Emer
gency Relief Appropriation Acts, therules and regulations, as stated in the Manual of Rules
and Regulations, are declared to be the rules of the Work Projects Administration until
changed or modified by the order of the Commissioner or the law.
F. C. BARRixofe# /
Commissioner o f Mork Projects
APPENDIX 3 (c)
Chapter I
CREATION AND ORGANIZATION DEVELOPMENT
PART I. GREAT I OR, PURPOSE, AKO QEMERAI. AUTHORITV
• The--Emergency Belief Appropriation Act of 1935, approved April 8, 1935,
provided an appropriation for relief and work relief on useful projects. The
President of the United States was authorized by this act to establish and
prescribe the duties and functions of necessary agencies within the Government
to carry out this purpose*
The President, by Executive Order No. 7034, dated May 6, 1935, created the
Works Progress Administration to administer a program to provide relief and
work relief and to increase employment by providing for useful projects for
which funds were appropriated in the Emergency Belief Appropriation Act of
1935.
S ber* * e n e r
B e l ie f appro*
p r in t io n Act
o f 1935.
Creation of the
Vbrk« P ro* 're t#
M ain itt ration.
O bjective and B asic Functions
The original purpose of the Works Progress Administration as expressed in Ctfined Cbjcc*
Executive Order ilo. 7034 was as follows: "A Works Progress Administration
is established which shall be responsible to the President for the honest,
efficient, speedy, and coordinated execution of the work relief program as a
whole and for the execution of that program in such manner as to move from
the relief rolls to work on such projects or in private employment the maximum
number of persons in the shortest time possible.1*
Under the President's First Plan on Government Heorganization, submitted to
Congress on April 25, 1939, the Works Progress Administration was incorporated
in the Federal Works Agency, under the name of Work Projects Administration.
The Work Projects Administration is responsible for the planning and operation
of useful work projects sponsored by local and Federal agencies and designed
and scheduled so as to provide a maximum employment in all localities where
relief from unemployment is seeded.
iai.OOi
91
APPENDIX 3 (d)
1 .1 .0 0 2 • ORGANIZATION AND ADMINISTRATION
Gtmt innation o f
fe rk e Progress
A dain is tra tio n
by ERA Acts.
A uthority
Vested in th e
Federal Admin
i s t r a t o r by ERA
Act o f 1931.
C reation o f
Work P ro jec ts
Adm inistration
by Reorganisa
t io n Plan No. 1.
Basic P rovi
sions of ERA
Act o f 1919.
Legislative Development of the Work Program
The powers and functions of the Works Progress Administration, as defined
by Executive Order No. 7034, were continued by Executive Orders No. 7396,
dated June 22, 1936, and No. 7649, dated June 29, 1937, which made applicable
to the program carried, on under the Emergency Relief Appropriation Acts of
-1936 and 1937, respectively, all Executive Orders,-rules, and regulations
issued under authority of the Emergency Relief Appropriation Act of 1935#
By the Emergency Relief Appropriation Act of 1933, the Works Progress Adminis*-
tration and the National Youth Administration were extended until June 30, 1939#
This act also vested the Federal Administrator of the Works Progress Adminis*
tration with authority to prescribe rules and regulations necessary for carrying
out the purposes of the act insofar as they relate to the Works Progress
Administration,, and to make allocations to other Federal agencies.
Under authority vested in him by the Reorganization Act of 1939, approved
April 3, 1939, the President evolved Reorganization Plan No. 1 providing for
the consolidation of the Works Progress Administration and its functions (with
the exception of the National Youth Administration! and certain other agencies
into the Federal Works Agency. The plan further provided that the Works Prog
ress Administration and its functions should henceforth be administered as the
Work Projects Administrat ion. Reorganization Plan No. 1 was approved by Congress
in Public Resolution No. 20, 76th Congress, to become effective July 1, 1939#
The Emergency Relief Appropriation Act Of 1939, approved June 30, 1939,
appropriated funds to the Work Projects Administration for the purpose of
prosecuting public projects approved under the Emergency Relief Appropriation
Acts of 1935, 1936, 1937, and 193Q, and certain types of public projects,
Federal and non-Federal, as approved by the President. The act also authorized
the Work Projects Administration to carry on, until June 30, 1940, the functions
formerly vested in the Works Progress Administration subject to the provisions
of the act#
APPENDIX 3 (e) * 1 2 3 4 5
CREATION UNO ORGANIZATION DEVELO PM ENT. 1 ,1 ,0 5 3
Position In the federal Works Agency
In creating the Federal Works Agency, the President provided in Reorganization
Plan No. 1 that a Federal Works Administrator should be placed at the head
thereof and charged with responsibility for the general direction and super
vision over the administration of the several agencies consolidated into the
Federal Works Agency, and for the coordination of their functions.
The agencies consolidated into the Federal Works Agency are:
1. Public Roads Administration (formerly the Bureau of Public Roads in the
Department of Agriculture).
2. Public Buildings Administration (formerly the Public Buildings Branch of
the Procurement Division in the Treasury Department; the Branch of Build
ings Management of the National Park Service in the Department of Interior?
and the functions of the National Park Service in the District of Columbia
in connection'with the general assignment of space, the selection of sites
for public buildings, and the determination of the priority in which the
construction or enlargement of public buildings shall be undertaken!.
3. United States Housing Authority (formerly in the Department of Interior).
4 . Public Works Administration (formerly the Federal Emergency Administration of Public Works).
A d s la lit n to r
o f Federal
tbric* Atcaejb
—Five Mm d.se
Consolidated.
5. ¥ork Projects Adminis tration (formerly the Works Progress Administration).
Reorganization Plan No. lalso provides that the Work Projects Administration
shall be administered by a Commissioner of Work Projects.
The plan further provided for the transfer of the personnel of the several
agencies consolidated into the Federal Works Agency and for the'transfer of
all records and property (including equipmentl of the several agencies to the,
j urisdiction and control of the Federal Works Agency.
Ganln2cHir«|
ferfc Projects.
Personnel xuK
Property
T ransferred t f
Federa l f e l t s A»~cy.
92
APPENDIX 3 (f)
CREATION AKO ORGANIZATION DEVEIOPWNT > 1.1.015
M I T I I I . RELATIONSHIPS BETWEEN MORI PROJECTS ADMINISTRATION
AXO OTHER PUBLIC ASEXCIES
, Tie character of tie SPA program aecessitatesttiat its operation be carried Public %«*,
out la close cooperation wits other public agencies. The other public, agencies
concerned is the operation ol the WA program are classified as follows: 111 JSi, A
pnhlie agencies for which projects are operated and which sponsor such projects;
121 public welfare agencies which refer needy persons to the fork Projects
Administration tor certification for employment on SPA projects; and (31 Federal
agencies which perform administrative and supervisory services for the Work
Projects Administration, liaison with such public agencies is maintained bp \.Z
BA divisions as outlined in this part.
Relations With Project Sponsor*
Each VPA project is required to have a public agency as sponsor. The Step*
gency Belief Appropriation Act of 1939 specifically provides that the funds
appropriated therein shall not be available for the operation of any project
sponsored solely by the Work Projects Administration.
Bliglble sponsors for WA projects are Federal departments; States, political
subdivisions thereof,-or legally constituted public agencies of a State or
politic*! subdivision; and those types of agencies and bodies specifically
authorised to be eligible sponsors by the current Emergency Belief Appropria
tion Act. Is special cases, aonprof it, quasi-public agencies which are legally
controlled by public authority through power of appointment or otherwise,
which receive their principal support by regular budgetary appropriations f rom
public revenue, and the assets of which upon dissolution revert to public
ownership, say sponsor WA projects which are of direct and immediate benefit
to the general public. Other eligible public ageucies may act as co-sponsors
with the official sponsor; nonpublic bodies and individuals who assist sponsors
in planning or carrying out other WA projects are desigaatbd as other con
tributors or cooperating sponsors.
Eligible fn»J.
The operating divisions of the Work Projects Administration are primarily Advising
respoasible for consulting with and advising prospective sponsors as- to the e“ Sponsor*,
development of projects.
The operation of approved projects is a joint responsibility of the sponsors Utltm ®*s
and the Work Projects Administration, liaison with sponsors in the operation %®s«sr*o
of projects is maintained by the WA .operating divisions.
She Emergency Belief Appropriation Act of 1933 also provides that "not 'to
exceed three-fourths of the total cost of all non-Federal projects *' * •
nndertaken within any State, Territory, possession, or the District ef Columbia
* * » shall be borne by the United States, and not less than one-fourth
of such total cost shall be borne by the State and its political subdivisions,
or by the Territory, possession, or the District of Columbia, as the case may
be." Sponsors* contributions to the cost of projects may be in the form of
cesh, materials, and supplies, and to the extent that a financial burden is
involved, such other Hems as equipment rentals, implements, space rentals,
personal services at the project site, transportation and handling charges,
publication and duplication costs, professional consulting services, certain
types of installed equipment, land purchases, leases, easements, rights-of-way,
and costs of production activities. Regulations governing amounts and types
of sponsors' contributions are stated elsewhere in this Manual.
« a & ? -
I
93
APPENDIX 3 (g)
Chapter 5
GENERAL CONDITIONS OF PROJECT OPERATIONS
PART I. AUTHORITY AH# RESPONSIBILITY FOR PROJECT OPEN ATI 01
There will be found in this chapter those regulations*and procedures which
constitute the general conditions applying to the operation of all types o£
projectSi particularly as such regulations and procedures involve principles
or policies which are the special concern of persons charged with the responsi
bility of directing project operations- Special conditions pertaining to the
operation of certain classes of projects and types of work are covered in
succeeding chapters.
HPM Authority and R esp on sib ility fo r P ro je c t Operation
.The Work Projects Administration is charged with the responsibility of pro*
Tiding work for needy persons on useful public projects. It carries out "this
responsibility by operating, or cooperating in the execution of,*prejects
sponsored by public bodies which are designed tef provide additional facilities,
activities, or services of benefit to the general public. Although the spon
sors* participation on some of these projects may be executed under contract
between the sponsor and a contractor, the participation of the Work Projects
Administration in a project so operated is on a "force account" basis and the
contractor is recognized only as a representative of the sponsor.
The Work Projects Administration, in cooperation with sponsors, is responsible
for selecting projects for operation which offer the greatest degree of public
usefulness consistent with the employment of certified workers in the area.
The fact that sponsors may in some instances provide personnel for -project
supervision does not relieve the Work Projects Administration of responsibility
for the efficient and safe operation of WPA projects and the enforcement of
all WPA rales and regulations.
WA *A*thorltf
and ReqpOASi* biliey for
3 & U
mmMrn&rn
of Frej«Gg«i
The UforkProjects Administration is responsible for the general supervision
of WPA projects. While the responsibility of direct supervision of a project Bê oatibilityi
is usually vested in the Work Projects Administration, this responsibility may
be delegated to the sponsor. For purposes of this section, direct supervision
shall be construed, as carrying responsibility only for the execution of a
specific task or series of tasks in accordance with WPA policies administered
under general supervision. The Work Projects Administration also is responsible
for the selection and assignment of WPA employees, timekeeping for WPA employees#
payment of WPA employees, labor relations, accident prevention, providing for
medical care and compensation for WPA employees injured in the line of duty,
and for the care and disposition of Federal property and such sponsors* prop
erty as may be accepted into custody by the Work Projects Administration#
The development of a general plan of operation of a project is the joint
responsibility of the Work Projects Administration and the sponsor. In the
case of construction projects, the Work Projects Administration does not assume
responsibility for such matters as explorations, designs, plans, obtaining
easements, specifications, lay-outs, or the establishment of grades or levels#
2 .5 ,0 0 1
94
APPENDIX 3 (h)
2 .5 .0 0 2 • PROJECT PLANNING AND OPERATION
However, it is expected that these will be checked .in detail by WPA engineer*
©r by appropriate specialists as to adequacy lor the specific purpose, and
that any found not to be in accord with good, practice shall be called to the
attention of the sponsor for review before work based on them is undertaken.
Furthermore, work shall not be initiated until all proposed practices meet
with the approval of the WPA engineers or specialists. The efficiency of WPA
project operations and the usefulness of completed facilities to the general
public are dependent upon the adequacy of plans and specifications furnished
by the project sponsor and the timely fulfillment-of obligations either assumed
by the sponsor or which the sponsor may reasonably be expected to assume in
view of the public benefit accruing to the community.
«~Spon«r** Funds appropriated to the Work Projects Administration are available pri-
Partxeiyatlea. ©arily ’for the payment of wages to persons who are certified as in need.
Since WPA expenditures for nonlabor purposes are limited, the character and
efficiency of the work program supervised or operated by the Work Project*
Administration is largely dependent upon the ability and willingness of project
sponsors to supply funds, services, materials, and equipment promptly in
accordance with the agreement in the project proposal and as required for
project operation*.
95
APPENDIX 3 (i)
m m i C0M3fflCMS SF PROJECT OPgRATICWS e 2.5.003
Sponsor’s Responsibility and Authority
A sponsor of a WA project mast bare legal authority to eugage I# the merit
embraced by the project and in the area covered. The sponsor shall farther
be responsible lor the continued public sse or benefit of the facility or
service provided by the project sponsored.
She sponsor shall be responsible in the ease of eoastraetloa project* for
the adequacy and promptness of such technical services as plans, specifications,
lay-outs, grades, and levels as may be necessary or required for efficient
project op_eration and, in the case of all projects, to the extent required by the
limitations on expenditure of WPA funds for such purposes. He also shall be
responsible for meeting the expense of such personal and sonpersonsl services
as are essential for the efficient operation of the project. Where reports or
certifications from sponsors are required, sponsors are expected to prepare
and transmit such reports and certifications promptly and accurately.
As facilities and services provided through the operation of a OTA project
accrue to the benefit of the sponsoring agency, it is requiredthat the sponsor
assume responsibility for bringing to a useful conclusion alt units of work
started, iu the event that OTA funds are not available for the completion of
such units. Within the limits of funds available, the Work Projects Adminis
tration will mate every effort to complete units of work which have been under
taken, provided the sponsor fulfills his responsibilities relating to the
prosecution of the work.
She Work Projects Administration shall not delegate to the sponsor the
responsibility for direct project supervision unless the sponsor has made
provision.for adeguate and competent supervising personnel. Such personnel
shall be qualified by training and experience in the field of the project
activity and shall be acceptable to the appropriate representative of the Work
Projects Administration.
Authority mg
SipwvlrfM,
Where aprojeet is tobe operated under the direct supervisions! the sponsor, — »A
a WPA representative shall be assigned to the project 'is a capacity which
carries authority to insure observance cf WPA rules and regulations with respect
to the specific project, and such responsibility of the OTA representative
.shall be specifically defined aud understood by all parties concerned. The
sponsor's supervisory personnel shall be responsible to such WA representative
for conducting the project in conformity with the project authorisation aud
all applicable WPA rales and regulations. The sponsor's supervisor shall be
employed sufficiently in advance of the starting of the project to permit the
preparation by him and theWPAarea supervisor of the work schedule, as requited
by the instructions prescribed on pages 2,5.010-8,5.011.
Where direct supervision of project operations is being exercised by the ~ — Authority
sponsor, the sponsor's supervisory personnel shall have authority to plan the
manner in which the work shall be prosecuted and the . methods and sequence of op- ™
erations which shall be followed, subject to the review of the appropriate op
erating division and subject to such limitations as may be fixed oa the scope
and extent of the work approved for operation by the WPA operating divisioa
having jurisdiction. Insuch cases the sponsor's supervisor shall designate the
duties to be performed by such WPA superintendents and foremen, except the
WA representative assigned to the project, and shall approve all request*
for labor, materials, and equipment.
Where the WorkProjects Administration provides general technical supervislo#
ot s professional aud service, type of activity, and the technical supervision
96
APPENDIX 4 (a)
58
MR, MARSH? I have no further question.
MR, XORNEOAYs No questions.
WITNESS EXCUSED,
MRS. KENNEDYt Your Honor, the defendants would
like now to introduee our exhibits into evidence,
THE COURT* Which ones?
MRS, KENNEDYs Exhibit 1, Exhibit 2, Exhibits 3#
4, and 5.
MR. JCOHNEGAYs OBJECTION.
THE COURTS OVERRULED.
(The exhibits previously marked for identiflcati<
DEPENDANTS* EXHIBITS 1, 2, 3, 4, and 5, Introduced
n
in evidence.)
MYRTLE D. COBB, having been first duly sworn,
testified as followss
DIRECT EXAMINATION
BY MRS. KENNEDYs
5 w i n you state your name and address, please?
A I am Myrtle D. Cobb. I am deputy clerk in the Federal.
Court In Greensboro.
ft As Deputy Clerk In the Federal Court here in Greens
boro, Is It part of your duty to keep public records?
97
1
2
8
«
6
6
7
8
9
10
11
m
13
14
IB
IB
17
18
19
29
21
22
28
24
2S
APPENDIX 4 (b)
59
A Yes, It Is,
Q Do you hare a record In the case of Simkins, et al,
vs., Gillespie Park Golf Course, et al?
A Ibis is the case. It is all the original papers
that went up to the Court of Appeals that was filed in our
office,
Q Were the findings of fact part of that record?
A Y es.
MRS, KENNEDY: Your Honor, at this time we*d
like to offer into efidence a decree, the findings of
fact, conclusions of law and opinion, as rendered by the
Judge of the Federal Court, Middle District of Greensboro.
MR. KOMNEGAY: OBJECTION.
THE COURT: Do you hare anything further that
you want to Introduce in regard to that?
MRS. KENNEDY: In addition to that, we have the
opinion of the Circuit Court of Appeals on this case.
MR. KORNEGAY: OBJECTION.
THE COURT: Let the record show that is being
offered in evidence. I will rule on It later.
(The documents referred to were marked for
Identification DEPENDANTS* EXHIBITS 5 and 7.)
THE COURT: Anything else?
MRS. KENNEDY: Not with this witness, your
Honor.
98
1
8
S
4
S
$
7
8
9
10
I I
IS
13
14
15
16
17
IS
19
29
21
22
23
24
§IS
PROOF OF SERVICE
I, ------------------------------------------- ,____ ______ , Assistant Attorney
General of the State of North Carolina, hereby acknowledge
receipt of a copy of the within BRIEF ON TH E M ERITS
in the case of Leon Wolfe et al., Appellants, vs. State of North
Carolina, No. 7, October Term, 1959, now pending in the
Supreme Court of the United States, this th e __________________
--------------------------- ------------------------------------ day of August, 1959
Assistant Attorney General