Bullock v. Wooding, Randall v. Clairton, Stone v. Pasadena, and Richmond v. Deans Records and Briefs

    JdO'LLOCK V.
W UODINQ

iSiiiJ'IJDAj: ,A V.
OF/J.RTON 

STOr'M FA Si DEN 1
R I C H I E V .  DEAN

RECORDS
AND

BRIEFS











£frw Iferawj Stuprme (Enurt

ALLIE BULLOCK,
Prosecutrix, 

vs.

J. ARTHUR WOODING, Clerk of the City 
of Long Branch, New Jersey, and the 
CITY OF LONG BRAN CH / County of 
Monmouth, New Jersey,

Defendants.

On
Certiorari.

STATE OF CASE.
\

UPPERMAN AND YANCEY,
Attorneys for Prosecutrix.

ROBERT S. HARTGROVE,
Of Counsel for Prosecutrix.

LEO J. WARWICK,
Attorney for Defendants.

Arthur W. Cross, Inc., Law Printers, 71-73 Clinton Street, Newark, N. J.





INDEX

PAGE
Petition ........................................................  1

Exhibit 1, Ordinance Annexed to Petition 8
Registration Card Annexed to Petition. . 12
Affidavit of Allie Bullock Annexed to 

Petition ....................................................  13
Affidavit of Harry Friedman Annexed to 

Petition .....................   14
Notice of Application..................................... 15
Stipulation of Continuance.............................  17
Writ of Certiorari............................................  18

Allocatur ......................................................  19
Return to W rit................................................  20

Ordinance Annexed to Return...................  21
Amended Ordinance Annexed to Return 25
Registration Card Annexed to Return. . .  29

Reasons ........................................   30
Affidavit of Stenographer...............................  34
Testimony ........................................................  35
Certificate of Supreme Court Commissioner 102

W itnesses  pok P ro secu trix .

J. Arthur Wooding,
D irect ................................................  36
Cross ................................................  64
Re-direct ..........................................  71
Re-cross ............................................  76



11

PAGE
Virginia Audrey Flowers,

D irect ................................................. 62
Cross ................................................  63

Mrs. Anna Mumby,
D irect................................................  81
Cross ................................................  83

Mrs. Allie Bullock,
D irect................................................  86
Cross .............   88

Reverend Lester Kendall Jackson,
Direct .........................   93
Cross ................................................  95
Re-direct ........................................... 97

Jeanette Sample,
D irect................................................  97
Cross ................................................  99

Dr. Julius C. McKelvie,
Direct ................................................  100
Cross ................................................  102

E x h ib it s .
A dm itted  P rin ted  
at P age at Page

P-1—Ordinance, June 6, 1933............ 37 37
P-2—Amended Ordinance, June

7, 1938 ....................................... 37 40
P-3—Application of Harold Fried­

man 60 60



Petition.

dkxrm] Buynnw Okurt

J. A r t h u r  W ooding , Clerk of the 
City of Long Branch, New 
Jersey, and the C it y  of L ong 
B r a n c h , New Jersey,

A ll ie  B u l l o c k ,

vs.
Prosecutrix,

Defendants.

On Certiorari.
Petition.

10

To the Honorable Thomas J. Brogan, Chief 
Justice of the New Jersey Supreme Court:

The petition of Allie Bullock respectfully shows 
unto Your Honor that:

1. She is a citizen of the City of Long Branch, 
a resident of the City of Long Branch, County of 
Monmouth and State of New Jersey, and has re­
sided in said City of Long Branch and at number 
439 Hendrickson Avenue for the past thirteen 
years.

2. The said prosecutrix is a Negro and a mem­
ber of the Colored race.

3. Prosecutrix’ husband, William L. Bullock, 
with whom prosecutrix resides and at all times 
hereinafter mentioned, is a property owner and a 
taxpayer in the said City of Long Branch. 4

4. On June 7, 1938, the Board of Commission­
ers of the said City of Long Branch passed an 40

30



2

ordinance to amend an ordinance entitled, “ An 
Ordinance providing for the maintenance and 
regulation of bathing beaches in the City of Long- 
Branch and authorizing the imposition by the 
Board of Commissioners of the City of Long 
Branch or their duly authorized agent of fees 

10 for the use of said beaches, ’ ’ passed June 6, 1933.

5. A certified copy of the ordinance as 
amended and as to which prosecutrix complains, 
is annexed to this petition and made a part 
thereof.

6. Under the operation and exercise of the said 
amended ordinance the said City Commissioners 
of the said City of Long Branch and/or the City

20 Clerk of the said City divided that portion of the 
beach front of the Atlantic Ocean, embraced 
within the said limits of the said city and oper­
ated by it, into four segments or parts for bath­
ing facilities, said segments or parts being dis­
tinctly marked and distinguished as Beach No. 1, 
Beach No. 2, Beach No. 3 and Beach No. 4.

7. On Sunday, July 17, 1938, at about 1:45 
o ’clock in the afternoon of that day prosecutrix

30 in the City Hall of Long Branch made application 
to the City Clerk for the registration of her name 
and for a badge for the purpose of using the bath­
ing facilities at the Long Branch Beach. At the 
time that the prosecutrix made the application as 
aforesaid, she was given a registration card, a 
copy of which is hereto annexed and made a part 
of this petition. After the execution of the said 
registration card she tendered to the said City 
Clerk, J. Arthur Wooding, a fee of one dollar 

40 ($1.00) as required by the said amended ordi-

Petition.



3

nance, requesting of him at the same time that 
she be given a badge for bathing facilities for 
Beach No. 1. After making the request as afore­
said the said City Clerk refused to receive your 
petitioner’s application and the one dollar ($1,00) 
as tendered to him and as aforesaid, and also re­
fused to issue to her a badge or permit for Beach 
No. 1.

8. At the time that the said J. Arthur Wood­
ing, Clerk as aforesaid, refused to accept the ap­
plication of prosecutrix and as above set forth, 
he stated to her that he had received orders and 
directions from the Mayor of the City of Long 
Branch that no badges or permits should be is­
sued to Colored people for any of the beaches as 
aforesaid except Beach No. 3.

9. After prosecutrix had made application for 
a badge for use of Beach No. 1 and as aforesaid 
the said City Clerk of Long Branch issued beach 
badges for bathing facilities to many other per­
sons and of the White race for use of Beach No. 1 
and for use of Beach No. 2 and Beach No. 4.

10. The residence of prosecutrix and as afore­
said is so geographically situated that it is closer 
to Beach No. 1 for which she had applied for bath­
ing facilities as aforesaid than to Beach No. 3.

11. At various times since the enactment and 
adoption of the said amended ordinance the said 
City Clerk of Long Branch, acting under the guise 
and pretense of preventing congestion upon the 
said beaches, has refused to sell to persons of the 
Colored race badges or permits for any of the 
beaches except Beach No. 3. At the time that

Petition.

10

20

30

40



4

these refusals were made and as aforesaid there 
were no congestions upon any of the beaches and 
the said City Clerk at these times was selling 
badges for Beaches Numbers 1, 2 and 4 exclu­
sively to members of the White race.

10 12. The said City Hall of the said City of Long
Branch where the badges or permits are issued 
to patrons, is located at a distance of one mile 
from the said beaches of Long Branch.

13. The prosecutrix has been informed and 
verily believes that the purpose of the amended 
ordinance as above set forth, and the practice 
thereunder, are to restrict, segregate and forbid 
the use of any of the said beaches under consider-

20 ation by members of the Colored race except 
Beach No. 3 and as above set forth.

14. Prosecutrix is informed and verily be­
lieves that, as a resident and citizen of the said 
City of Long Branch, and as above set forth, she 
is interested in the conditions created by the said 
amended ordinance, and that she is entitled to 
any and all equal rights, advantages and privi­
leges of any citizen of the said City of Long

30 Branch or of the State of New Jersey, irrespec­
tive of color or race.

15. Prosecutrix is informed and verily believes 
that the enactment of the aforesaid amended ordi­
nance, and the acts of the said Clerk of the City 
of Long Branch as above set forth, are illegal, 
void and are and were in excess of jurisdiction in 
that:

(a) The said amended ordinance was not
40 legislation for the common good, interest,

health or safety of the community of the said 
City of Long Branch.

Petition.



(b) The said amended ordinance was leg­
islation for the benefit of a class.

(c) The said amended ordinance was an 
attempt to legislate as to the private rights 
of the prosecutrix and by the Citv of Long 
Branch as to the use of the public beaches 
of the City of Long Branch and the waters 
of the Atlantic Ocean, notwithstanding such 
rights should be determined and can be deter­
mined only by judicial proceedings under 
public statute.

(d) The said amended ordinance is an at­
tempt by legislation to abate a public nuis­
ance, and also an attempt to provide a sum­
mary proceedings, in the nature of a criminal 
proceedings, to try and adjudicate what would 
otherwise be an indictable offense, and thus 
deprive the prosecutrix of her right to indict­
ment and trial by jury.

(e) The said amended ordinance is in con­
flict with the general laws of the State of 
New Jersey.

(f) The said amended ordinance is in con­
flict with the Civil Rights Act of the State of 
New Jersey in it denies to the prosecutrix 
and other members of the Colored race, as 
well as all persons within the jurisdiction of 
the State of New Jersey, the full and equal 
accommodations, advantages, facilities and 
privileges to the public beaches of the City 
of Long Branch, and the public bath houses 
thereon.

(g) The said amended ordinance intro­
duces a policy contrary to and at variance 
with the public policy of the State of New 
Jersey.

5

Petition.

10

20

30

40



10

20

30

40

6

(h) The said amended ordinance is a dele­
gation of the legislative powers of the gov­
erning bodies of the municipality to an agent 
thereof.

(i) The said amended ordinance, as a 
revenue measure, is discriminatory and illu­
sory.

(j) The said amended ordinance, as a rev­
enue measure, is detrimental to the financial 
welfare of the said City of Long Branch.

(k) The said amended ordinance, as a rev­
enue measure, is an unlawful delegation of 
the taxing power of the governing body of 
the City of Long Branch to the City Clerk 
or an agent thereof.

(l) The said amended ordinance is unrea­
sonable, arbitrary, uncertain and indefinite 
in its terms, operation and exercise.

(m) The said amended ordinance vests in 
a municipal agent, to wit, the City Clerk, 
powers arbitrary and oppressive, and a dis­
cretion to prevent private citizens of the City 
of Long Branch, State of New Jersey, from 
the use of the beach and the waters of the 
Atlantic Ocean.

(n) The said amended ordinance gives no 
right of appeal from the exercise of the arbi­
trary or discretionary powers by the said 
City Clerk of Long Branch.

(o) The said amended ordinance provides 
no procedure for the prosecutrix or any ap­
plicant to obtain a badge or permit for the 
use of the bathing facilities and access to the 
said beaches.

Petition.



7

(p) The said amended ordinance is viola­
tive of the rights of the prosecutrix as set 
forth by the Constitution of the State of New 
Jersey, and the Fourteenth Amendment to 
the Constitution of the United States of 
America.

(q) The said amended ordinance is vio­
lative of the Laws of the State of New Jer­
sey, to wit, the so-called Home Rule Act, as to 
the penalty which it seeks to impose upon the 
prosecutrix or any other person violating any 
of the terms of the said amended ordinance.

W h erefo re , the premises considered, the prose­
cutrix, Allie Bullock, prays that a rule issue out 
of the Supreme Court of New Jersey directing 
and commanding J. Arthur Wooding, City Clerk 
of the City of Long Branch, to show cause why 
a writ of certiorari should not issue out of the 
said Supreme Court of New Jersey to test the 
legality of the said amended ordinance as above 
set forth and the acts thereunder of the said City 
Clerk of the said City of Long Branch and as 
above set forth.

And that the said prosecutrix might have any 
and all other relief that might be legal and just.

And the said prosecutrix will ever pray, &c.

A llie  B u l l o c k , 
Prosecutrix.

W alter  J. U p p e r m a n , 
R oger M. Y a x l e y , 

Attorneys for Prosecutrix.

R obert S. H artgrove,
Of Counsel for Prosecutrix.

Petition.

10

20

30

40



8

I , J. A r t h u r  W ooding do certify that the fol­
lowing is a true copy of Ordinance passed June 
7th, 1938.

J. A r t h u r  W ooding , 
(Seal) City Clerk.

10
A n O rd in a n c e  to amend an ordinance entitled: 

“ An Ordinance providing for the maintenance 
and regulation of bathing beaches in the City of 
Long Branch and authorizing the imposition 
by the Board of Commissioners of the City of 
Long Branch or their duly authorized agent of 
fees for the use of said beaches,”  passed June 6, 
1933.

20 The Board of Commissioners of the City of 
Long Branch Do O rdain  :

Section 1. That Section 2 of the above entitled 
ordinance be and the same is hereby amended so 
that it supersedes the present Section 2 in said 
ordinance and shall read as follows:

Section 2. For the government, use and opera­
tion of said public beaches the following rules and 
regulations shall be in force and effect and the 
fees hereinafter provided for shall be imposed and 
charged:

1. All persons desiring the use of the bathing- 
facilities and access to said beaches shall register 
in the City Clerk’s Office, City Hall, and upon 
paying the fee or charge as hereinafter provided, 
shall receive from the City Clerk a badge, check or 
other insignia which shall be worn by the regis­
trant when required, or shall be shown at the re- 
quest of any officer or employee of the City of

Exhibit 1 Annexed to Petition.



9

Long Branch. A11 badges, checks or other in­
signia and all written evidence of the right to use 
said beaches shall not be transferable.

2. For the purpose of avoiding congestion on 
any of said beaches, and for a proper distribution 
of patrons, and for the better protection and 
safety of patrons on said beaches, the City Clerk 
is authorized and directed to issue badges, checks 
or other insignia of distinctive design or color for 
the use of each of the respective beaches.

3. The said fees hereinafter provided for shall 
entitle said registrant to said use for a period of 
not less than ten weeks beginning not before June 
15th and ending not later than October 1st, of each 
year, as the period for use shall be from time to 
time determined by the Director of the Depart­
ment of Parks and Public Property, subject, how­
ever, to the direction of the Board of Commis­
sioners of the City of Long Branch.

4. All permits, licenses or other rights and 
privileges to use said bathing facilities shall be 
subject to such regulations as are now in force or 
which may hereafter be made during the period 
covered by such permit.

5. The Board of Commissioners may by reso­
lution adopt such additional rules and regulations 
for the .government, use and policing of such 
beaches and places of recreation not inconsistent 
with the provisions of this ordinance.

6. F e e s : There shall be charged for the use
of the bathing facilities and access to said recrea­
tional grounds the following fees:

Exhibit 1 Annexed to Petition.

10

20

30

40



10

Exhibit 1 Annexed to Petition.

Bona fide residents of the City of Long 
Branch per season.....................................$ 1.00

Guests of residents (not more than two 
guests per day) for each guest, plus a de­
posit of 50c per badge.......................................50

10 Non-residents, seasonal perm it....................  3.00
Where bathing house facilities are provided 

bath house for not more than five persons, 
per season ..................................................  25.00

Section 2: That Section 4 of the above entitled
ordinance be and the same is hereby amended so 
that it supersedes the present Section 4 of said 
ordinance, and shall read as follows:

20 Section 4: All persons residing in a charitable 
institution or institutions in the City of Long 
Branch shall be entitled to enter upon that part of 
the bathing beaches in this ordinance described 
or in the waters adjacent thereto, as shall be from 
time to time designated by the Director of the De­
partment of Parks and Public Property of the 
City of Long Branch for that purpose without 
charge.

The City of Long Branch shall comply with all 
30 the laws regarding the safety of bathers and shall 

provide all such safety devices for bathers as are 
required by the laws of New Jersey and particu­
larly shall keep and observe all the provisions of 
Chapter 174 of the Acts of the Legislature of the 
State of New Jersey for the year 1900, and upon 
the failure to do so the Director of the Depart­
ment of Parks and Public Property may close 
said beaches or any part thereof and the Director 
of the Department of Parks and Public Property 

40 may at any and all times close said beaches and



11

forbid bathing thereon because of storm or condi­
tions of the beaches or ocean which may be deemed 
dangerous for bathers.

All expenses and costs to the City of Long 
Branch in carrying out the terms of this ordinance 
shall be paid from the appropriations made in the 
budget of the City of Long Branch, for the cur­
rent year for this purpose.

All fees and income from the operation of said 
beaches shall be collected by the City Clerk and 
transmitted to the Treasurer of the City of Long 
Branch to become the property of the City of 
Long Branch. All matters relating to the use and 
administration of said beaches are hereby com­
mitted to the Director of the Department of Parks 
and Public Property subject, however, to the pro­
visions of this ordinance and such rules and regu­
lations as may hereafter be duly adopted by the 
Board of Commissioners of the City of Long 
Branch.

All persons violating any provisions of this 
ordinance shall upon conviction before the Re­
corder or other officer having jurisdiction forfeit 
and pay a tine not exceeding $50.00 for each of­
fence and in default of payment of such fine shall 
be imprisoned in the County Jail for a term not 
exceeding 30 days in the discretion of the Re­
corder or Police Magistrate.

Introduced May 24, 1938.
Passed June 7, 1938.

A lto n  V . E vans 
W alto n  S h e r m a n  
F r a n k  A . B razo 

Commissioners.
Attest:

J. A r t h u r  W ooding,
City Clerk.

Exhibit 1 Annexed to Petition.

10

20

30

40



12

Registration Card Annexed to Petition. 

P u b lic  N otice

The foregoing ordinance was finally passed by 
the Board of Commissioners of the City of Long 
Branch, New Jersey, on the seventh day of June, 
1938.

Dated Long Branch, N. J., June 7, 1938.

J. A r t h u r  W ooding, 
City Clerk.

Registration Card Annexed to Petition.

B a t h in g  R egistration  R esiden t

20 C it y  of L ong B r a n c h

NEW JERSEY

Badge No....................... Date.................................
Name ..........................................................................
Address ......................................................................

In accordance with an ordinance of the City of 
Long Branch regulating the use of the bathing 
beaches of the City of Long Branch by bathers, I 
represent that I am a bona fide resident of the 

3 0  City of Long Branch, and I herewith make appli­
cation for bathing privileges for the season of 
1938, and herewith pay the fee of One Dollar 
($1.00) for the same. I agree to abide by the 
rules and regulations set forth in the said ordi­
nance and assume all risks incident thereto.

Signature of Applicant.

40



13

S tate  of N e w  J ersey , 1
7 SS. I

C o u n t y  of M o n m o u t h , ^

A llie  B u l l o c k , residing at 439 Hendrickson 
Avenue, in the City of Long Branch, county and 
state aforesaid, being duly sworn upon her oath, jq 
deposes and says:

1. I am the prosecutrix named in the foregoing 
^petition and am a citizen of the City of Long 
Branch, State of New Jersey, having resided in 
the said City of Long Branch for thirteen years 
last past.

2. I have read the contents of the said fore­
going petition and as to the matters and facts 20 
therein set forth, I swear the same to be true just
as fully and to the same extent as if the same 
were herein set forth; and as to the matters and 
facts therein set forth upon information and be­
lief, I believe the same to be true just as fully and 
to the same extent as if they were herein set forth.

A llie  B u l l o c k .

Subscribed and sworn to before me ) 
this 20th day of August, 1938.  ̂ ^

I rvin g  R. W ebster ,
Notary Public of New Jersey.

My Commission Expires April 15, 1942.

Affidavit of Allie Bullock Annexed to Petition.

40



14

S tate  of N e w  J eesey ,
C o u n t y  of M o n m o u t h .

H arky  F r ie d m a n , of full age, being duly sworn 
according to law upon his oath deposes and says:

10
1. He is a resident of the City of Long Branch, 

residing at No. 156 Union Avenue, Long Branch, 
New Jersey, and is a member of the Caucasian or 
White race. *

2. On Sunday, July 17th, 1938, at about 1:50 
o ’clock in the afternoon of that day he appeared 
at the office of the Clerk of the City of Long 
Branch, registered, tendered a fee of One Dollar

2o and asked for a badge for Beach No. 4. He was 
given a badge for Bathing Beach No. 4, and re­
turned about one half hour later and exchanged 
said badge for a badge for Beach No. 1, known as 
the North Long Branch Beach.

3. Deponent further says that his place of 
residence geographically is situated at a greater 
distance from Beach No. 1, known as the North 
Long Branch Beach, than the home of Allie Bul- 
lock who resides at No. 439 Hendrickson Avenue.

H arry F r ie d m a n .

Subscribed and sworn to before me J
this 20th day of August, 1938. j

I rving  R. W ebster ,
Notary Public of New Jersey.

My Commission Expires April 15, 1942.

Affidavit of Harry Friedman Annexed to Petition.

40



15

Notice of Application.

NEW JERSEY SUPREME COURT.

J. A r t h u r  W ooding, Clerk of the 
City of Long Branch, New 
Jersey, and the C it y  or L ong 
B r a n c h , New Jersey,

A llie  B u l l o c k ,

vs.
Prosecutrix,

Defendants.

On Certiorari.
Notice of 

Application.

On Petition. 10

To the City Commissioners of Long Branch,
J. Arthur Wooding, City Clerk of Long 20 
Branch, Leo J. Warwick, City Solicitor of 
Long Branch.

P lease ta k e  n o tice  that on Monday the 29th 
day of August, 1938, at ten o ’clock in the forenoon 
of that day (daylight saving time) or as soon 
thereafter as counsel can he heard, I shall apply 
to the Honorable Joseph B. Perskie, Justice of 
the Supreme Court of New Jersey, at his Cham- 
bers located in the City of Atlantic City, New 
Jersey, for a writ of certiorari to review an ordi­
nance passed by the City Commissioners of the 
City of Long Branch, in the State of New Jersey, 
on the 7th day of June, 1938, entitled “ An Ordi­
nance to amend an ordinance entitled: ‘ An 
Ordinance providing for the maintenance and 
regulation of bathing beaches in the City of Long- 
Branch and authorizing the imposition by the 
Board of Commissioners of the City of Long

Sirs:

40



16

Notice of Application.

Branch or their duly authorized agent of fees for 
the use of said beaches,’ ”  passed June 6, 1933, 
and also the acts of the City Clerk of the said City 
of Long Branch under the said ordinance as 
amended.

10 A nd ta k e  n o tice  fu r t h e r  that annexed to this 
notice and made a part thereof are exact copies 
of the petition and affidavits and exhibits thereto 
annexed upon which the application as aforesaid 
will be made.

Yours truly, &c.,

W alte r  J. U pp e r m a n  
and

20 R oger M. Y a n c e y ,
Attorneys for Prosecutrix.

R obert S. H artgrove, 
Counsel for Prosecutrix.

30

40



17

NEW JERSEY SUPREME COURT.

Stipulation of Continuance.

J. A r t h u r  W ooding , Clerk of the 
City of Long Branch, New 
Jersey, and the C it y  of L ong 
B r a n c h , New Jersey,

A llie  B u l l o c k ,

vs.
Prosecutrix,

Defendants.

On Certiorari.
Stipulation of 
Continuance.

On Petition. 10

It is hereby stipulated by and between the At­
torneys for the respective parties herein that the 20 
application for a rule to show cause why a writ 
of certiorari should not be issued herein, which 
application was originally returnable on August 
29tli, 1938, before the Honorable Joseph B. Per- 
skie, a Justice of the New Jersey Supreme Court, 
at his chambers, Guarantee Trust Building, At­
lantic City, and continued until September 17,
1938, be and the same is hereby further continued 
until Saturday, October 1, 1938, before said Jus­
tice, at the aforesaid chambers, at the hour of 3 0  
11 o ’clock in the forenoon.

It is further stipulated that the prosecutrix 
may present her aforesaid application on the con-

40



18

tinued date as if same were moved on the original 
return date, August 29th, 1938.
Dated: September 16, 1938.

U p p e r m a n  & Y a n c e y , 
Attorneys for Prosecutrix, 

Allie Bullock.

L eo J. W a r w ic k , 
Attorney for J. Arthur Wooding, 

Clerk of the City of Long 
Branch, New Jersey, and the 
City of Long Branch, New 
Jersey.

Writ of Certiorari.

20
Writ of Certiorari.

N e w  J ersey , ss. : T h e  S tate  of N e w  J ersey  to

J . A r t h u r  W ooding, C le rk  
of t h e  C it y  of L ong  B r a n c h , 

(L . S .)  N e w  J ersey , an d  T h e  C it y

of L ong B r a n c h , C o u n t y  of 
M o n m o u t h — G reetin g  :

We being willing, for certain reasons, to be cer­
tified of a certain municipal ordinance, to wit, 
An Ordinance to amend an ordinance entitled: 
“ An Ordinance providing far the maintenance 
and regulation of bathing beaches in the City of 
Long Branch and authorizing the imposition by 
the Board of Commissioners of the City of Long 
Branch or their duly authorized agent of fees for 
the use of said beaches,”  passed June 6, 1933, 
introduced at a meeting of the City Commission­
ers of the said City of Long Branch on the 24th 
day of May, 1938 and passed June 7, 1933, and 
the decision of the City Clerk of the said City of

40



19

Long Brandi acting thereunder on the 17th day 
of July, 1938 in rejecting the application of Allie 
Bullock for a permit or license to use the bathing 
facilities of Beach No. 1 in the said City of Long 
Branch, do command you that you certify and 
send under your seal, to our Justices of our Su­
preme Court of Judicature, at Trenton, on the 
21st day of October, 1938, the said municipal Ordi­
nance and the said decision of the said City Clerk 
of Long Branch above mentioned, together with 
all things touching and concerning the same, as 
fully and completely as they remain before you, 
together with this our writ, that we may cause 
to be done thereupon what of right and justice 
and according to the laws of the State of New 
Jersey ought to be done.

W it n e ss , T h o m as  J. B rogan , Esquire, Chief 
Justice of our Supreme Court, at Trenton, this 
3rd day of October in the year of our Lord One 
Thousand Nine Hundred and Thirty-eight.

F red L. B loodgood, 
Clerk.

W alter  J. U p p e r m a n ,
B oger M . Y a n c e y ,

Attorneys for Prosecutrix.

B obert S. H artgrove,
Of Counsel for Prosecutrix.

Writ of Certiorari.

Allocatur.

The Writ of Certiorari is allowed.
Depositions may be taken by either party upon 

five (5) days’ notice.
J oseph  B . P e r sk ie , 

Justice.

10

20

30

40



20

Return to Writ.

NEW JERSEY SUPREME COURT.

A llie  B u l l o c k ,
Prosecutrix,

vs.

J. A r t h u r  W ooding, Clerk of the 
City of Long Branch, New 
Jersey, and the C it y  of L ong 
B r a n c h , County of Monmouth, 

Defendants. I, 2

I , J. A r t h u r  W ooding , Clerk of the City of 
2 Q Long Branch, do hereby send to the Supreme 

Court of the State of New Jersey,

1. The Ordinance entitled: “ An Ordinance 
providing for the maintenance and regulation of 
bathing beaches in the City of Long Branch and 
authorizing the imposition by the Board of Com­
missioners of the City of Long Branch, or their 
duly authorized agents, of fees for the use of said 
beaches.”  Passed June 6, 1933.

2. An Ordinance to amend an Ordinance en­
titled: “ An Ordinance providing for the mainten­
ance and regulation of bathing beaches in the City 
of Long Branch and authorizing the imposition 
by the Board of Commissioners of the City of 
Long Branch, or their duly authorized agents, of 
fees for the use of said beaches.”  Passed June 7, 
1938. Together with all papers and things touch­
ing and concerning the same, as by the writ of 
certiorari sealed the third day of October, 1938 
before Honorable Thomas J. Brogan, Chief Jus­
tice of the Supreme Court, I am commanded to do.

30

On Certiorari. 
Return of Writ.



21

I certify that I am the Clerk of the City of Lon" 
Branch in the County of Monmouth and State of 
New Jersey, and that the following are true copies 
of Ordinances passed by the Board of Commis­
sioners of the City of Long Branch relating to the 
regulation of bathing beaches, form of application 
for bathing privileges, and that together they con-  ̂0 
stitute the entire record of the proceedings in the 
above entitled action.

Signed this twentieth day of October, one thou­
sand nine hundred and thirty-eight, and sealed 
with the seal of the City of Long Branch, County 
of Monmouth, State of New Jersey.

J. A r t h u r  W ooding ,
City Clerk of the Citv of Long Branch.

20

Ordinance, June 6, 1933.

Ordinance Annexed to Return.

A n O rd in an ce  providing for the maintenance and 
regulation of bathing beaches in the City of 
Long Branch and authorizing the imposition by 
the Board of Commissioners of the City of 
Long Branch or their duly authorized agent of 
fees for the use of such beaches. 30

The Board of Commissioners of the City of 
Long Branch do ordain:

1. That so much of the lands and premises ly­
ing east of Ocean Avenue as are now or shall be 
hereafter owned by the City of Long Branch and 
not used for any other purpose, or over which the 
City of Long Branch may, by consent of the own­
ers, or otherwise have control for the purpose, 40



22

shall be maintained and operated as public beaches 
by the City of Long Branch so that they may be 
used for bathing and recreation.

2. There shall be charged for the use of the 
bathing facilities and access to the said recrea-

10 tional grounds the sum, of $1.00 for each person, 
which said fee shall entitle the said person to the 
use of any part of the said premises for recrea­
tional and bathing purposes for a period not less 
than twelve weeks beginning not before June first 
and ending not later than October first in each 
year, as the period for use of said beach or bath­
ing ground shall be from time to time determined 
by the Director of the Department of Parks and 
Public Property, subject to the direction of the

20 Board of Commissioners of the City of Long- 
Branch, provided, however, if any person or per­
sons shall desire the use of the grounds, in the 
ordinance set forth, for one day only, he or she 
shall pay the sum of Fifty Cents. Every person 
registered and paying therefor shall receive a 
badge, check or other insignia which shall be worn 
by the registrant when required, or shall be shown 
at the request of any officer or employee of the
City of Long Branch having jurisdiction.

30
3. All children of the age of twelve years or 

under shall be admitted to the said beaches and 
bathing privileges without charge, provided, how­
ever, that the Director of the Department of 
Parks and Public Property, or his duly author­
ized representative shall make reasonable regula­
tions for the care of said children and may in his 
discretion not permit any such child to enter upon 
such beaches or in the waters adjacent to the

40 beaches unless he or she is accompanied by a com­
petent person of mature age.

Ordinance, June 6, 1933.



23

4. All persons residing in a charitable insti­
tution or institutions in the City of Long Branch, 
shall be entitled to enter upon that part of the 
bathing beaches in this ordinance described or in 
the waters adjacent thereto, as shall be from time 
to time designated by the Director of the Depart­
ment of Parks and Public Property of the City 
of Long Branch for that purpose without charge.

The City of Long Branch shall comply with all 
the laws regarding the safety of bathers and shall 
provide all such safety devices for bathers as are 
required by the laws of New Jersey and particu­
larly shall keep and observe all the provisions of 
Chapter 174 of the Acts of the Legislature of the 
State of New Jersey for the year 1900, and upon 
the failure to do so the Director of the Depart­
ment of Parks and Public Property may close said 
beaches or any part thereof and the Director of 
the Department of Parks and Public Property 
may at any and all times close said beaches and 
forbid bathing thereon because of storm or con­
ditions of the beaches or ocean which may be 
deemed dangerous for bathers.

All expenses and costs to the City of Long 
Branch in carrying out the terms of this ordi­
nance shall be paid from the appropriations made 
in the budget of the City of Long Branch for the 
current year for this purpose.

All fees and income from the operation of said 
beaches shall be collected by the Director of the 
Department of Parks and Public Property or his 
duly authorized agent and transmitted to the 
Treasurer of the City of Long Branch at the end 
of each day, to become the property of the City 
of Long Branch. All matters relating to the use 
and administration of said beaches are hereby 
committed to the Director of the Department of

Ordinance, June 6, 1933.

10

20

30

40



24

Parks and Public Property, subject, however, to 
the control at all times by the Board of Commis­
sioners of the City of Long Branch.

Ordinance, June 6, 1933.

10

Introduced May 13, 1933. 
Passed June 6, 1933.

J . W il l ia m  J ones 
D orm an  M cF addin  
W alto n  S h e r m a n  
W il l ia m  I. R osenfeld ,

Commisioners.
Attest:

F r a n k  A. B razo ,
City Clerk.

20

P ublic  N otice

The foregoing ordinance was finally passed by 
the Board of Commissioners of the City of Long 
Branch, New Jersey, on the sixth day of June, 
1933.
D a t e d : Long Branch, N. J., June 7, 1933.

F r a n k  A. B razo ,
City Clerk. 
134 (Thurs.)

40



25

A n  O rd in an ce  to amend an ordinance entitled: 
“ An Ordinance providing for the maintenance 
and regulation of bathing beaches in the City of 
Long Branch and authorizing the imposition 
by the Board of Commissioners of the City of 
Long Branch or their duly authorized agent of 
fees for the use of said beaches,”  passed June 6, 
1933.

The Board of Commissioners of the City of 
Long Branch Do O r d a in :

Section 1. That Section 2 of the above entitled 
ordinance be and the same is hereby amended so 
that it supersedes the present Section 2 in said 
ordinance and shall read as follows:

Section 2. For the government, use and opera­
tion of said public beaches the following rules and 
regulations shall be in force and effect and the 
fees hereinafter provided for shall be imposed and 
charged:

1. All persons desiring the use of the bathing 
facilities and access to said beaches shall register 
in the City Clerk’s Office, City Hall, and upon 
paying the fee or charge as hereinafter provided, 
shall receive from the City Clerk a badge, check or 
other insignia which shall be worn by the regis­
trant when required, or shall be shown at the re­
quest of any officer or employee of the City of 
Long Branch. All badges, checks or other in­
signia and all written evidence of the right to use 
said beaches shall not be transferable. 2

2. For the purpose of avoiding congestion on 
any of said beaches, and for a proper distribution

Amended Ordinance Annexed to Return.

10

20

30

40



26

of patrons, and for the better protection and 
safety of patrons on said beaches, the City Clerk 
is authorized and directed to issue badges, checks 
or other insignia of distinctive design or color for 
the use of each of the respective beaches.

10 3. The said fees hereinafter provided for shall
entitle said registrant to said use for a period of 
not less than ten weeks beginning not before June 
15th and ending not later than October 1st, of each 
year, as the period for use shall be from time to 
time determined by the Director of the Depart­
ment of Parks and Public Property, subject, how­
ever, to the direction of the Board of Commis­
sioners of the City of Long Branch.

20 4. All permits, licenses or other rights and
privileges to use said bathing facilities shall be 
subject to such regulations as are now in force or 
which may hereafter be made during the period 
covered by such permit.

5. The Board of Commissioners may by reso­
lution adopt such additional rules and regulations 
for the government, use and policing of such 
beaches and places of recreation not inconsistent

gQ with the provisions of this ordinance.

6. F e e s : There shall be charged for the use 
of the bathing facilities and access to said recrea­
tional grounds the following fees:
Bona fide residents of the City of Long

Branch per season.....................................$ 1.00
Guests of residents (not more than two 

guests per day) for each guest, plus a de­
posit of 50c per badge

Amended Ordinance, June 7, 1938.

40 .50



27

Amended Ordinance, June 7, 1938.

Non-residents, seasonal perm it...................  3.00
Where bathing house facilities are provided 

bath house for not more than five persons, 
per season ..................................................  25.00

Section 2: That Section 4 of the above entitled ^g
ordinance be and the same is hereby amended so 
that it supersedes the present Section 4 of said 
ordinance, and shall read as follows:

Section 4: All persons residing in a charitable
institution or institutions in the City of Long 
Branch shall be entitled to enter upon that part of 
the bathing beaches in this ordinance described 
or in the waters adjacent thereto, as shall be from 
time to time designated by the Director of the De- gQ 
partment of Parks and Public Property of the 
City of Long Branch for that purpose without 
charge.

The City of Long Branch shall comply with all 
the laws regarding the safety of bathers and shall 
provide all such safety devices for bathers as are 
required by the laws of New Jersey and particu­
larly shall keep and observe all the provisions of 
Chapter 174 of the Acts of the Legislature of the 
State of New Jersey for the year 1900, and upon 
the failure to do so the Director of the Depart­
ment of Parks and Public Property may close 
said beaches or any part thereof and the Director 
of the Department of Parks and Public Property 
may at any and all times close said beaches and 
forbid bathing thereon because of storm or condi­
tions of the beaches or ocean which may be deemed 
dangerous for bathers.

All expenses and costs to the City of Long 
Branch in carrying out the terms of this ordinance 
shall be paid from the appropriations made in the



28

Amended Ordinance, June 7, 1938.

budget of the City of Long Branch, for the cur­
rent year for this purpose.

All fees and income from the operation of said 
beaches shall be collected by the City Clerk and 
transmitted to the Treasurer of the City of Long 
Branch to become the property of the City ol 

10 Long Branch. All matters relating to the use and 
administration of said beaches are hereby com­
mitted to the Director of the Department of Parks 
and Public Property subject, however, to the pro­
visions of this ordinance and such rules and regu­
lations as may hereafter be duly adopted by the 
Board of Commissioners of the City of Long 
Branch.

All persons violating any provisions of this 
ordinance shall upon conviction before the Re- 
corder or other officer having jurisdiction forfeit 
and pay a fine not exceeding $50.00 for each of­
fence and in default of payment of such fine shall 
be imprisoned in the County Jail for a term not 
exceeding 30 days in the discretion of the Re­
corder or Police Magistrate.

Introduced May 24, 1938.
Passed June 7,1938.

30

Attest:
J. A r t h u r  W ooding, 

City Clerk.

A l t o n  V . E vans 
W alto n  S h e r m a n  
F r a n k  A . B razo 

Commissioners.

40



29

Registration Card Annexed to Return. 

P u b lic  N otice

The foregoing ordinance was finally passed by 
the Board of Commissioners of the City of Long 
Branch, New Jersey, on the seventh day of June, 
1938.

Dated Long Branch, N. J., June 7, 1938.

J. A r t h u r  W ooding, 
City Clerk.

Registration Card Annexed to Return.

B a t h in g  R egistration  R esiden t

C ity  of L ong  B r a n c h  
n e w  jersey

Badge No....................... Date.................................
Name .........................................................................
Address .......................................... ..........................

In accordance with an ordinance of the City of 
Long Branch regulating the use of the bathing 
beaches of the City of Long Branch by bathers, I 
represent that I am a bona fide resident of the 6 
City of Long Branch, and I herewith make appli­
cation for bathing privileges for the season of 
1938, and herewith pay the fee of One Dollar 
($1.00) for the same. I agree to abide by the 
rules and regulations set forth in the said ordi­
nance and assume all risks incident thereto.

Signature of Applicant.
40



30

Reasons.

NEW JERSEY SUPREME COURT.

10
J. A r t h u r  W ooding, Clerk of the 

City of Long Branch, New 
Jersey, and the C it y  of L ong 
B r a n c h , New Jersey,

A llie  B u l l o c k ,
Prosecutrix,

vs.

Defendants.

On Certiorari.
Reasons.

The said prosecutrix, by her attorneys, comes 
and prays that “ An Ordinance to amend an ordi­
nance entitled: ‘ An Ordinance providing for the 
maintenance and regulation of bathing beaches in 
the City of Long Branch and authorizing the im­
position by the Board of Commissioners of the 
City of Long Branch or their duly authorized 
agents of fees for the use of the said beaches, 
passed June 6, 1933’ enacted and passed by 
the Board of Commissioners of the City of Long 
Branch, New Jersey, on the 7th day of June, 1938, 
be declared null and void, and for nothing holden,

1. That the said amended ordinance of the 
said City of Long Branch upon which the City 
Clerk of the said City of Long Branch relied in 
rejecting the application of the prosecutrix for a 
permit or license to use the bathing facilities of' 
Beach No. 1 of the said City of Long Branch is 
unconstitutional and violative of both the state 
and the federal constitutions in that:

(a) It is discriminatory.

30 for the following reasons, to wit:

40



31

(b) The said amended ordinance was not 
legislation for the common good, interest, 
health or safety of the community of the said 
City of Long Branch.

(c) The said amended ordinance was 
legislation for the benefit of a class.

(d) The said amended ordinance was an 
attempt to legislate as to the private rights 
of the prosecutrix and by the City of Long 
Branch as to the use of the public beaches 
of the City of Long Branch and the waters of 
the Atlantic Ocean, notwithstanding such 
rights should be determined and can be de­
termined only by judicial proceedings under 
public statute.

(e) The said amended ordinance is an at­
tempt by legislation to abate a public nuis­
ance, and also an attempt to provide a sum­
mary proceedings, in the nature of a criminal 
proceedings, to try and adjudicate what would 
otherwise be an indictable offense, and thus 
deprive the prosecutrix of her right to indict­
ment and trial by jury.

(f) The said amended ordinance is in con­
flict with the spirit and letter of the general 
laws of the State of New Jersey.

(g) The said amended ordinance in oper­
ation and effect is in conflict with the Civil 
Rights Act of the State of New Jersey in that 
it denies to the prosecutrix and other mem­
bers of the colored race, as well as all persons 
within the jurisdiction of the State of New 
Jersey, the full and equal accommodations, 
advantages, facilities and privileges to the

Reasons.

10

20

30

40



Reasons.

public beaches of the City of Long Branch, 
and the public bath houses thereon.

(h) The said amended ordinance intro­
duces a policy contrary to and at variance 
with the public policy of the State of New 
Jersey.

(i) The said amended ordinance is an un­
warranted and unlawful delegation of the 
legislative powers of the governing bodies of 
the municipality to an agent thereof.

(j) The said amended ordinance, as a rev­
enue measure, is discriminatory and illusory.

(k) The said amended ordinance, as a 
revenue measure, is detrimental to the finan­
cial welfare of the said City of Long Branch.

(l) The said amended ordinance, as a 
revenue measure, is an unlawful delegation of 
the taxing power of the governing body of the 
City of Long Branch to the City Clerk or an 
agent thereof.

(m) The said amended ordinance is un­
reasonable, arbitrary, uncertain and indefin­
ite in its terms, operation and exercise.

(n) The said amended ordinance vests in 
a municipal agent, to wit, the City Clerk, 
powers arbitrary and oppressive, and a dis­
cretion to prevent private citizens of the City 
of Long Branch, State of New Jersey, from 
the use of the beach and the waters of the 
Atlantic Ocean.

(o) The said amended ordinance gives no 
right of appeal from the exercise of the arbi­
trary or discretionary powers by the said City 
Clerk of Long Branch.



33

(p) The said amended ordinance provides 
no procedure for the prosecutrix or any ap­
plicant to obtain a badge or permit for the 
use of the bathing facilities and access to the 
said beaches.

(q) The said amended ordinance is viola­
tive of the Laws of the State of New Jersey, 
to wit, the so-called Home Rule Act, as to the 
penalty which it seeks to impose upon the 
prosecutrix or any other person violating 
any of the terms of the said amended ordi­
nance.

(r) The said amended ordinance is in 
divers other respects illegal, unjust and op­
pressive and should be set aside and be for 
nothing holden.

W alter  J. U p p e r m a n , 
R oger M . Y a n c e y , 

Attorneys for Prosecutrix.

R obert S. H artgrove, 
Counsel for Prosecutrix.

Reasons.

30

20

30

40



34

Affidavit of Stenographer.

NEW JERSEY SUPREME COURT.

10

A l l ie  B u l l o c k ,
Prosecutrix,

vs.

J. A r t h u r  W ooding, Clerk of the 
City of Long Branch and the 
C it y  oe L ong B r a n c h , New 
Jersey,

Defendants.

On Certiorari.
Affidavit of 

Stenographer.

20
S tate  of N ew  J ersey , 
C o u n t y  of M o n m o u t h .

ss.:

M yrtle  E. H o yt , of full age, being duly sworn 
according to law, upon her oath deposes and says: 
That she will carefully, faithfully and impartially 
take stenographically and reproduce in manu­
script or typewriting the testimony given in the 
above entitled cause.

M yrtle  E. H o yt .

30 Subscribed and sworn to before me | 
this 21st day of November, 1938. ^

J u l iu s  J . G olden ,
Master in Chancery of New Jersey.

40



35

Testimony.

NEW JERSEY SUPREME COURT.

A ll ie  B u l lo c k ,
Prosecutrix,

vs.

J. A r t h u r  W ooding, Clerk of the 
City of Long Branch and the 
C it y  of L ong B r a n c h , New 
Jersey,

Defendants.

Transcript of testimony taken before Julius J. 
G olden , a Supreme Court Commissioner of New 2 0  
Jersey, at his offices, at 190 Broadway, Long 
Branch, N. J., on Monday, November 21st, 1938 
at 10:00 o ’clock A. M.

By consent of all counsel, this testimony was 
taken down stenographically, by questions and an­
swers, by Myrtle E. Hoyt, a stenographer, who 
was first duly sworn to take such evidence care­
fully, faithfully and impartially, and to make a 
true and correct transcript thereof.

Appearances: ^
W alter  J. U pp e r m a n  and R oger M. Y a n c e y ,

Esqs., for the Prosecutrix.
L eo J. W a r w ic k , E sq., for J. Arthur Wood­

ing and the City of Long Branch.

10
On Certiorari. 

Testimony.

40



36

J. Arthur Wooding, for Prosecutrix—Direct.

J. Arthur W ooding, called as a witness on be­
half of the prosecutrix, being first duly sworn 
testified as follows:

Direct examination hy Mr. Yancey:

10 Q- What is your name? A. J. Arthur Wood­
ing.

Q. What is your official capacity? A. City 
Clerk of the City of Long Branch.

Q. How long have you been the City Clerk? A. 
Since May 19, 1936.

Q. And were you the Clerk of the City of Long 
Branch on or about the 7th day of June, 1938? A. 
Yes, sir.

Q. On that day the Board of Commissioners 
20 passed an ordinance to amend an ordinance pro­

viding for the maintenance and regulation of 
bathing beaches in the City of Long Branch and 
authorizing the imposition by the Board of Com­
missioners of the City of Long Branch or their 
duly authorized agent of fees for the use of said 
beaches? A. Yes, sir.

Q. Were you the Clerk of the City of Long 
Branch on or about July 17th, 1938? A. Yes.

Q. And in the same capacity at the present 
2 Q time? A. Yes, sir.

Q. As such Clerk of the said City of Long 
Branch, you have direct supervision and control 
of the issuance of the licenses or passes upon the 
beaches of the city? A. At that time?

Q. At that time. A. Yes.
Q. You did have that control on the sixteenth 

day of July? A. That is right.
Q. Do you have the total registrations with 

you on that date? A. I have.
Q. Let us have them. Can you give them to us ? 

A. Just the figures of that date?
40



37

Q. Yes, the figures of that date.
(After off-the-record discussion.)
Mr. Yancey: I now offer the original or­

dinance and the amended ordinance in evi­
dence. (The original ordinance and the 
amended ordinance referred to were re- 10 
spectively marked Exhibit P-1 and P-2.)

The original ordinance referred to reads 
as follows:

“ A x ordinance  providing for the main­
tenance and regulation of bathing beaches 
in the City of Long Branch and authoriz­
ing the imposition by the Board of Com­
missioners of the City of Long Branch or 
their duly authorized agent of fees for the 20 
use of such beaches.

The Board of Commissioners of the City 
of Long Branch do ordain:

1. That so much of the lands and prem­
ises lying east of Ocean Avenue as are 
now or shall be hereafter owned by the 
City of Long Branch and not used for any 
other purpose, or over which the City may,
by consent of the owners, or otherwise, 30 
have control for the purpose, shall be 
maintained and operated as public beaches 
by the City of Long Branch so that they 
may be used for bathing and recreation.

2. There shall be charged for the use of 
the bathing facilities and access to the said 
recreational grounds the sum of $1.00 for 
each person, which said fee shall entitle 
the said person to the use of any part of
the said premises for recreational and ^

Exhibit P-1, Original Ordinance.



bathing purposes for a period not less than 
twelve weeks beginning not before June 
first and ending not later than October 
first in each year, and the period for the 
use of said beach and bathing ground shall 
be from time to time determined by the 
Director of the Department of Parks and 
Public Property, subject to the direction of 
the Board of Commissioners of the City of 
Long Branch, provided, however, if any 
person or persons shall desire the use of 
the grounds, in the ordinance set forth, 
for one day only, he or she shall pay the 
sum of Fifty Cents. Every person regis­
tered and paying therefor shall receive a 
badge, check or other insignia which shall 
be worn by the registrant when required, 
or shall be shown at the request of any 
officer or employee of the City of Long 
Branch having jurisdiction.

3. All children of the age of twelve 
years or under shall be admitted to the said 
beaches and bathing privileges without 
charge, provided, however, that the Direc­
tor of the Department of Parks and Pub­
lic Property, or his duly authorized repre­
sentative shall make reasonable regulations 
for the care of said children and may in 
his discretion not permit any such child to 
enter upon such beaches or in the waters 
adjacent to the beaches unless he or she is 
accompanied by a competent person of ma­
ture age.

L All persons residing in a charitable 
institution or institutions in the City of 
Long Branch, shall be entitled to enter

Exhibit P-1, Original Ordinance.



39

upon that part of the bathing beaches in 
this ordinance described or in the waters 
adjacent thereto, as shall be from time to 
time designated by the Director of the De­
partment of Parks and Public Property of 
the City of Long Branch for that purpose 
without charge.

The City of Long Branch shall comply 
with all the laws regarding the safety of 
bathers and shall provide all such safety 
devices for bathers as are required by the 
laws of New Jersey and particularly shall 
keep and observe all the provisions of 
Chapter 174 of the Acts of the Legislature 
of the State of New Jersey for the year 
1900, and upon the failure to do so the Di­
rector of the Department of Parks and 
Piiblic Property may close said beaches or 
any part thereof and the Director of the 
Department of Parks and Public Property 
may at any time and all times close said 
beaches and forbid bathing thereon because 
of storm or conditions of the beaches or 
ocean which may be deemed dangerous for 
bathers.

All expenses and costs to the City of 
Long Branch in carrying out the terms of 
this ordinance shall be paid from the ap­
propriations made in the budget of the 
City of Long Branch for the current year 
for this purpose.

All fees and income from the operation 
of said beaches shall be collected by the 
Director of the Department of Parks and 
Public Property or his duly authorized 
agent and transmitted to the Treasurer of 
the City of Long Branch at the end of each

Exhibit P-1, Original Ordinance.

10

20

30

40



\

day, to become the property of the City of 
Long Branch. All matters relating to the 
use and administration of said beaches are 
hereby committed to the Director of the 
Department of Parks and Public Property, 
subject, however to the control at all times 
by the Board of Commissioners of the City 
of Long Branch.
Introduced May 13, 1933.
Passed June 6, 1933.

J . W il l ia m  J ones , 
D orm an  M cF ad d in , 
W alto n  S h e r m a n , 

W il l ia m  I. R oseneeld , 
Commissioners.

Attest:
F r a n k  A. B razo ,

City Clerk.

Exhibit P-2, Amended, Ordinance.

P ublic  N o tice .

The foregoing ordinance was finally 
passed by the Board of Commissioners of 
the City of Long Branch, New Jersey, on 
the sixth day of June, 1933.

Dated: Long Branch, N. J., June 7, 1933.

F r a n k  A. B razo , 
City Clerk.” '

The amended ordinance referred to reads 
as follows:

A n  O rdinance  to amend an ordinance 
entitled: ‘ An Ordinance providing for the



41

maintenance and regulation of bathing 
beaches in the City of Long Branch and 
authorizing the imposition by the Board of 
Commissioners of the City of Long Branch 
or their duly authorized agent of fees for 
the use of said beaches,’ passed June 6, 
1933.

The Board of Commissioners of the City 
of Long Branch do okdain  :

Section 1. That Section 2 of the above 
entitled ordinance be and the same is here­
by amended so that it supersedes the pres­
ent Section 2 in said ordinance and shall 
read as follows:

Section 2. For the government, use and 
operation of said public beaches the fol­
lowing rules and regulations shall be in 
force and effect and the fees hereinafter 
provided for shall be imposed and charged:

1. All persons desiring the use of the 
bathing facilities and access to said beaches 
shall register in the City Clei’k ’s Office, 
City Hall, and upon paying the fee or 
charge as hereinafter provided, shall re­
ceive from the City Clerk a badge, check or 
other insignia which shall be worn by the 
registrant when required, or shall be shown 
at the request of any officer or employee of 
the City of Long Branch. All badges, 
checks or other insignia and all written evi­
dence of the right to use said beaches shall 
not be transferable.

2. For the purpose of avoiding conges­
tion on any of said beaches, and for a 
proper distribution of patrons, and for the

Exhibit P-2, Amended Ordinance.

10

20

30

40



42

better protection and safety of patrons on 
said beaches, the City Clerk is authorized 
and directed to issue badges, checks or 
other insignia of distinctive design or color 
for the use of each of the respective 
beaches.

10
3. The said fees hereinafter provided 

for shall entitle said registrant to said use 
for a period of not less than ten weeks be­
ginning not before June 15th and ending 
not later than October 1st, of each year, as 
the period for use shall be from time to 
time determined by the Director of the De­
partment of Parks and Public Property, 
subject, however, to the direction of the

20 Board of Commissioners of the City of
Long Branch.

4. All permits, licenses or other rights 
and privileges to use said bathing facilities 
shall be subject to such regulations as are 
now in force or which may hereafter be 
made during the period covered by such 
permit.

5. The Board of Commissioners may by 
resolution adopt such additional rules and 
regulations for the government, use and 
policing of such beaches and places of rec­
reation not inconsistent with the provisions 
of this ordinance.

6. F e e s : There shall be charged for 
the use of the bathing facilities and access 
to said recreational grounds the following- 
fees :

Exhibit P-2, Amended Ordinance.

40



43

Exhibit P-2, Amended Ordinance. 

Bona fide residents of the City of
Long Branch per season..............$ 1.00

Guests of residents (not more than 
two guests per day) for each 
guest, plus a deposit of 50  ̂ per
badge .......................................................50

Non-residents, seasonal permit.......  3.00 10
Where bathing house facilities are 

provided bath house for not 
more than five persons, per sea­
son ..................................................  25.00
Section 2: That Section 4 of the above

entitled ordinance be and the same is here­
by amended so that it supersedes the pres­
ent Section 4 of said ordinance, and shall 
read as follows: 2 q

Section 4: All persons residing in char­
itable institution or institutions in the City 
of Long Branch shall be entitled to enter 
upon that part of the bathing beaches in 
this ordinance described or in the waters 
adjacent thereto, as shall be from time to 
time designated by the Director of the De­
partment of Parks and Public Property of 
the City of Long Branch for that purpose 
without charge. 30

The City of Long Branch shall comply 
with all the laws regarding the safety of 
bathers and shall provide all such safety 
devices for bathers as are required by the 
laws of New Jersey and particularly shall 
keep and observe all the provisions of Chap­
ter 174 of the Acts of the Legislature of 
the State of New Jersey for the year 1900, 
and upon the failure to do so the Director

40



of the Department of Parks and Public 
Property may close said beaches or any 
part thereof and the Director of the De­
partment of Parks and Public Property 
may at any and all times close said beaches 
and forbid bathing thereon because of 
storm or conditions of the beaches or ocean 
which may be deemed dangerous for bath­
ers.

All expenses and costs to the City of 
Long Branch in carrying out the terms of 
this ordinance shall be paid from the ap­
propriations made in the budget of the City 
of Long Branch, for the current year for 
this purpose.

All fees and income from the operation 
of said beaches shall be collected by the 
City Clerk and transmitted to the Treas­
urer of the City of Long Branch to be­
come the property of the City of Long 
Branch. All matters relating to the use 
and administration of said beaches are 
hereby committed to the Director of the 
Department of Parks and Public Property 
subject, however, to the provisions of this 
ordinance and such rules and regulations 
as may hereafter be duly adopted by the 
Board of Commissioners of the City of 
Long Branch.

All persons violating any provisions of 
this ordinance shall upon conviction be­
fore the Recorder or other officer having 
jurisdiction forfeit and pay a fine not ex­
ceeding $50.00 for each offence and in de­
fault of payment of such fine shall be im­
prisoned in the County Jail for a term not

Exhibit P-2i Amended Ordinance.



45

exceeding 30 days in the discretion of the 
Recorder or Police Magistrate.

J. Arthur Wooding, for Prosecutrix— Direct.

Introduced May 24, 1938.
Passed June 7, 1938.

A lt o n  V . E va n s , 
W alto n  S h e r m a n , 
F r a n k  A . B razo , 

Commissioners.
Attest:

10

J. A r t h u r  W ooding, 
City Clerk.

P u b lic  N o tic e .
A\)

The foregoing ordinance was finally 
passed by the Board of Commissioners of 
the City of Long Branch, New Jersey, on 
the seventh day of June, 1938.
Dated: Long Branch, N. J., June 7, 1938.

J. A r t h u r  W ooding ,
City Clerk.”

Q. Now, Mr. Wooding, what was the total 
registration on the 16th day of July, 1938? A. 30 
On July 16th there was a registration of 678.

Q. 67.8? A. Yes.
Q. And what was the total registration on the 

17th day of July, 1938?
Mr. Warwick: At the completion of the 

day?
Mr. Yancey: Yes.

A. 296.
40



46

Mr. Warwick: That is the total regis­
tration on the cards sold on that day?

The Witness: Yes.

Q. Referring to your record again, Mr. Clerk, 
will you kindly tell us the registration on the 21st

10 day of July, 1938? A. On the 21st day of July?
Q. Yes, of 1938. A. 22.
Q. 22? A. Yes, sir.
Q. Referring again to the records, how about 

the 24th day of July! A. Nothing.
Q. Referring to your records, how about the 

14th day of August, 1938? A. 60.
Q. 60? A. 60.
Q. And how about the 17th day of August, 1938? 

A. 27.
20 Q. 27? A. Yes.

Q. Now, Mr. Wooding, have you any way of 
telling the total registrations or sales allowed for 
each beach on these dates? The dates I have just 
asked you. A. No, sir.

Q. As a matter of fact, under this ordinance, the 
beach is divided into how many sections? A. 
Four beaches.

Q. How are they designated? A. 1, 2, 3 and
4.

30 Q- You have no way of telling what was sold 
for these different beaches? A. Yes, sir.

Q. Suppose you give us the number sold to the 
beaches. Now, in respect to the 16th day of July? 
A. What is your question?

Q. What was the total sold to Beach No. 1? A. 
436 for the 16th day of July.

Q. How about Beach No. 2? A. 45.
Q. No. 3? A. 14.
Q. 14? A. Yes.

40 Q. No. 4? A. 178.

J, Arthur Wooding, for Prosecutrix— Direct.



47

Q. How about July 17th? A. Now, you are 
going to find a discrepancy of five on this date. 
There were three guest tags sold and during the 
first part of the sales there was no record kept of 
what beaches the guests went to and the same is 
true as to non-residents. There were 2 non-resi­
dents sold and 3 guests which would bring the 
total to 678.

Q. All right. On the 17th day of July for 
Beach No. 1? A. For Beach No. 1 there were 
179.

Q. Beach No. 2? A. 18.
Q. Beach 3? A. 14.
Q. Beach 4? A. 67, and also on that day there 

were 15 guest tags and 3 non-residents making a 
total of 296.

Q. How about the 21st of July, same year? A. 
Beach 1—12, nothing for Beach 2 and 3 and 9 for 
Beach 4, 1 non-resident, making a total of 22.

Q. All right. On July 24th? A. Nothing sold 
for any beaches.

Q. No tags sold? A. No tags.
Q. Then on the 14th day of August? A. Beach 

1—21, Beach 2—2, Beach No. 3—3, Beach No. 4— 
5, and 29 guests making a total of 60.

Q. On the 17th day of August? A. Beach No. 
1—6, Beach 2—none, Beach 3—4, Beach 4—14, 
and 3 guests making a total of 27.

Q. Now, we notice Mr. Wooding that on the 
24th of July no tags were sold? A. That is right.

Q. Do I understand no persons applied at all 
for use of the beaches on that day? A. I believe 
that there was a terrible rain storm on that day.

Q. Were there any tags refunded on that day? 
A. No refunds or anything.

Q. Were there any refunds on the 23rd day of 
July of 1938? A. None.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



48

Q. On the 24th? A. None.
Q. On the 25th? A. Two.
Q. On what beaches were they bought, or shall 

I say refunded? A. I can tell you if you will 
give me a few minutes.

Q. You said two refunds? A. Yes, there were 
10 2 refunds on that day. Oh! There is a mistake. I

read 2 for 2 persons instead of $2.00. It should 
he 4. There is a refund of $2.00 on 4 tags.

Q. Will you give me the beach numbers? A. 
The records show that there were 4 refunds. I 
am sorry that I cannot tell you for what beaches 
the tags were issued. The tags are not marked. 
We did not start to mark them until August some 
time.

Q. These tags that I am asking you about, are 
20 they the season tags on the refunds? A. No, 

they are daily or guest tags for the day.
Q. I see. Then there were no refunds up to 

the present time with respect to the season tags? 
A. Yes, I believe so. On the 16th day of July we 
gave a refund. Do you want to know what that 
is?

Q. Yes. A. We gave a refund of $7.00 on 7 
tags.

Q. Were they season tags? A. Yes, sir.
Q. What beaches were they for? A. They 

were all for Beach No. 3.
Q. Who were they refunded to ? A. I think to 

Peter J. Donnelly of 113 Liberty Street, Alfredo 
Rodriquez, Rex Hotel, 82 Ocean Avenue, Rita Jef­
ferson of 194 Belmont Avenue, Charles H. Dicker- 
son of 72 Oakhill Avenue, Rosalie Gel, or Gee, of 
171 Belmont Avenue, Susie Farmer of 194 Bel­
mont Avenue and Richard Gee of 171 Belmont 
Avenue.

J. Arthur Wooding, for Prosecutrix— Direct.



49

Q. Now, let me see. Do you know why they 
were refunded? A. Yes, I think I do. They were 
not satisfied with the beach and they said it was 
misrepresented.

Q. Misrepresented? What was misrepre­
sented? A. That they wanted tags for another 
beach and they were given this beach.

Q. This was Beach No. 3? A. Yes, and they 
said that they would not bathe at Beach No. 3 and 
to satisfy them they asked for their money back 
and I gave them their money back.

Q. Do you recall whether or not they asked for 
tags for another beach? A. They might have. I 
don’t recall. I don’t remember any of these 
people.

Q. Did they come singly or in a body? A. In 
a body, but I only gave the money to one party.

Q. Who did you give the money to? A. I don’t 
know whether I remember, but I do remember that 
I paid it to one person.

Q. Was it a lady by the name of Mrs. Anna 
Mumby? A. I don’t recall the name, but I might 
recognize her if I saw her.

Q. Did you see her this morning? A. I am not 
sure.

Q. But you do think you would recognize her? 
A. I might. I am not sure. That was a very 
busy day.

Q. But you do remember that they did come in 
in a body and claimed and alleged misrepresen­
tation of the condition of the beach? A. Not the 
condition of the beach, but that they did not want 
to go to Beach 3. They were sold tags for 
Beach No. 3 and they wanted their money back.

Q. Before they purchased the tags, were they 
told that they were getting tags for Beach No. 3? 
A. I did not sell them the tags. I was not selling 
that day.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



50

Q. When they came back for the money, at that 
time they did not ask, or you don’t recall being 
asked, for tags for Beach 1, 2 or 4? A. I would 
not say. I can’t remember.

Q. Referring to your previous testimony re­
garding the parties who came in that group, is 

10 this the lady you refunded the money to? A. I 
have seen her before, but I am not sure.

Q. All this took place on the 16th day of July? 
A. That is right.

Q. Plow about the refunds on July 26th? A. I 
think we started on July 25th and there were two 
and nothing on the 26th of July.

Q. On the 27th? A. Nothing on the 27th.
Q. The 28th? A. There was one on the 28th.
Q. Prom what beach was that? A. Just a min- 

20 ute, let me see. Yes, one.
Q. On Beach No. 1? A. Yes. Again that was 

a guest tag and not a season one.
Q. Now, how about July 29th? A. There was 

none.
Q. And on the 30th? A. One.
Q. What beach was it for? Was it a guest tag 

or a season tag? A. A guest tag.
Q. Can you give us the total refunds, both for 

the season and for guests, for Beach No. 3 during 
30 the entire period? A. No, I can’t unless I go 

through all the records. The first part of July we 
did not mark the guest tags as to what beach they 
were for.

Q. How about the season tags? They were 
marked? A. Yes, I can tell you that, but I will 
have to go through all my tags.

Q. I hate to impose that upon you but we would 
like to know the total refunds on seasonal passes.

40 Mr- Warwick: You want to know the
number of refunds on seasonal passes?

■  J. Arthur Wooding, for Prosecutrix— Direct.



51

Mr. Yancey: Yes, that is right.
(After off-the-record discussion).

Q. Mr. Wooding, do you know how many per­
sons resided in charitable homes or institutions in 
the City of Long Branch! A. I don’t know.

Q. Do you know how many charitable institu­
tions are situate in the City of Long Branch! A. 
No.

Q. Do you have any record of the number of 
institutions! A. We have no record.

Q. Doesn’t that come under your jurisdiction 
as City Clerk! A. No, sir.

Q. In your capacity as Clerk and under the op­
eration of this particular ordinance, wouldn’t you 
be required to know how many inmates and insti­
tutions were located in the City of Long Branch 
in these charitable institutions! A. I believe I 
would not have to know.

Q. Under that ordinance you would not have 
to know! A. No.

Q. In other words, you would have no control, 
no knowledge and no advice as to the number of 
persons entering upon Beach 1, 2, 3 or 4 from the 
charitable institutions of Long Branch at any 
time! A. I have not.

Q. And of course, not having any knowledge as 
to that, you could not regulate or really operate 
under this ordinance!

Mr. Warwick: I object to that.
The Commissioner: The objection has 

been noted. Answer the question.

A. What is your question!
The Commissioner: State your question.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



52

(The question was read by the stenog­
rapher. )

A. I believe so.
Q. How? A. From information from the 

beach that they were overcrowded.
10 Q. Who would give you that information? A.

1 would get the information from the beach as to 
the number that was there. For instance, on No.
2 Beach, Mr. Potter would tell me.

Q. Just a minute, who is Mr. Potter? What is 
his connection with that beach? A. I believe his 
capacity was sort of head of that beach.

Q. Under you? A. No, the Beach Commis­
sioner.

Q. And did he have anything to do with the is- 
20 suance of the passes? A. No, sir.

Q. How often would he report to you? A. He 
just told me that they were pretty well crowded 
on that particular beach.

Q. Can you fix the time that you got the report 
that Beach No. 2 was crowded? When did you 
get this information?

Q. Was it some time around the 1st of August, 
1938? A. Yes.

Q. Hid you have any one to report to you on 
30 Beaches No. 1, No. 3 and No. 4? A. No, I did not. 

Q. Now, did you ever get any report on 
Beaches No. 1, No. 3 and No. 4 before this one 
you speak of that Mr. Potter gave you? A. No. 

Q. Have you had any since? A. No.
Q. Now you say that on August 1st, 1938 he 

reported to you that Beach No. 2 was congested. 
Could you look at your records and tell us how 
many tags were sold on that day? A. On August 
1st? &

Q. Yes. A. For Beach No. 2.

J. Arthur Wooding, for Prosecutrix— Direct.

40



53

Q. Yes. A. On Beach No. 2 I sold 14 on that 
day.

Q. On August 1st you sold 14. Now how many 
did you sell after that date, do you recall? A. 
Just a minute.

Q. How many did you sell for Beach No. 2 
from the 1st to the 17th of August? A. From 
the 1st to the 17th?

Q. Yes. A. By quick addition, 63.
Q. 63? How about Beach No. 1 from August 

1st to the 17th? A. Including the 17th? or the 
16th?

Q. Including the 17th. A. 339.
Q. For Beach No. 1? A. Yes, Beach No. 1.
Q. How about Beach No. 3 for the same period 

of time?
Mr. Warwick: From the 1st to the 17th?
Mr. Yancey: Yes.

A. 64.
Q. How about Beach No. 4? A. 217.
Q. Now what is the distance from your office 

as City Clerk, at City Hall to the beaches? To 
Beach No. 1, Beach No. 2, Beach No. 3 and Beach 
No. 4, how far is that? A. From City Hall to 
Beach No. 1, it is approximately, my guess is, one 
and one-half miles.

Q. How about Beach No. 2? A. About the 
same distance.

Q. Beach No. 3? A. Three-quarters of a mile.
Q. Beach No. 4? A. Three-quarters of a mile.
Q. How did you determine, Mr. Wooding, con­

gestion upon the beaches? A. By the number of 
tags we were selling for the beaches.

Q. By the number of tags? Guest tags, season 
tags, or both? A. Season tags.

Q. Now did you have these badges colored any 
particular color? A. Yes, sir.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



54

Q. How was that arranged? A. Beach No. 1 a 
resident season was aluminum, non-resident was 
a red heart of celluloid.

Q. Beach No. 2? A. A  resident was a red cel­
luloid marked “ Avenel”  on it and the non-resi­
dent was a blue tag marked “ Avenel”  on it.

10 Q. As to Beach No. 3? A. The resident was a 
blue heart and the non-resident a red heart.

Q. And Beach No. 4? A. On Beach No. 4 the 
resident was a brass tag and the non-resident a 
red heart.

Q. Now referring to your records again, you 
sold 436 badges for Beach No. 1? A. What are 
you referring to?

Q. I am going back to the sales you had on July 
16th? A. Yes.

20 Q. 45 for Beach No. 2? A. Yes.
Q. 14 for Beach No. 3? A. Yes.
Q. And 178 for Beach No. 4, and you further tes­

tified that on the same day there were 3 guests and 
2 non-residents, making a total of 678 for that 
day? A. Yes.

Q. On the same day there were 7 tags refunded? 
A. That is right.

Q. All these persons who bought tags and were 
refunded, were colored people? A. I gave the 

30 $7.00 to a colored person. I don’t think all seven
people were there when the refund was made.

Q. Do you recall whether on that day the per­
sons who purchased those tickets and then re­
turned them because they were not satisfied with 
the Beach No. 3, whether they asked you for tags 
to Beach No. 2 or Beach No. 4, or to any other 
beach ?

Mr. Warwick: I  object. That is repeti­
tion. He has already stated that he does 

40 not recall.

J. Arthur Wooding, for Prosecutrix— Direct.

A. That was my answer.



55

Q. Did you ever refuse to sell tags to colored 
people, to members of the negro race, for Beaches 
No. 1, No. 2 and No. 4? A. I did.

Q. Why? A. Well, Beach No. 1— I don’t know 
whether I should go into detail on this. Can this 
be off the record?

(After off-the-record discussion.)

A. The reason why was creating a condition 
which might lead to serious trouble.

Q. Was it because of congestion? A. No.
Q. Were you trying to make distribution ac­

cording to numbers? A. No.
Q. Was it for the proper distribution of patrons 

and better protection and safety of the patrons 
on the beach? A. Yes and no.

Q. Yes and no? A. Separate it and I will an­
swer it.

Q. Was it for the better protection and safety 
of the patrons on the beach? A. Yes.

Q. In what way? A. There might be trouble 
with the patrons with the mixing of the races.

Q. Was it your purpose to segregate and sepa­
rate the colored race from the white race on the 
beaches? A. Yes, for the protection of the 
public.

Q. Was that the only purpose of issuing the 
separate tags? A. Yes.

Q. Now were you instructed, Mr. Wooding, to 
follow this course or procedure, namely to segre­
gate and separate the races at the beach? Were 
you instructed to do that? A. Indirectly, yes.

Q. Now what do you mean indirectly? A. In­
directly means not directly by any person.

Q. Who, then, instructed you indirectly to seg­
regate and separate the colored people from the 
white people? A. Many.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



56

Q. Name them please. A. Suppose I could not 
remember them all?

Mr. Warwick: I object to the question 
on the ground that the ordinance gives to 
the City Clerk the directions and authority 
to issue these beach privileges and no one 
else had any authority. Whether or not 
any one stated to him or gave him any in­
formation as to the methods in issuing the 
badges is not pertinent to the issue. There 
is no recital in the ordinance which gives 
any one else the right to issue badges or to 
direct the City Clerk.

The Commissioner: Note the objection. 
Answer the question, Mr. Wooding.

Indirectly, I was talked to------
Mr. Warwick: I object to any indirec­

tion. It is not pertinent, and, I therefore 
object to it.

The Commissioner: Note the objection, 
and answer the question.

Mr. Dey—Mr. Emil Dey, Kearney Eeid, Rich­
ard Van Dyke, Mayor Evans, Mr. Frank Brazo, 

3 0  Mr. Paul Nastasia, Mr. Frederick Wardell and 
many, many more. It is a hard matter to start to 
think. There must be 25 at least. There was a 
delegation of 15 who came in to see me.

Q. When was that? When did this delegation 
call on you? A. On the morning of July 16th 
there was a delegation.

Q. Who is Mr. Evans. A. Alton Evans.
Q. What is his capacity? A. Mayor of the City 

of Long Branch.
40 Q- When did he speak to you? A. I think he 

was in the office and he wanted to know how many 
tickets were sold.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

A.



57

Q. Was that on the first day? A. No, on July 
15th.

Q. On July 15th? A. In the afternoon of July 
15th.

Q. What did he tell you? A. He was fearful 
when I told him the number of colored people who 
had taken Beach No. 1 and Beach No. 2, he was 
fearful of the results of a terrible situation might 
come about.

Q. You had no specific instances? A. That was 
on the first day.

Q. That was on the first day? A. Yes, sir.
Q. You had nothing to go along on except some 

imaginary fears? A. By the number of requests 
for Beach No. 3, and for the Beaches No. 1, No. 2 
and No. 4, it looked as though they were boycot­
ting Beach No. 3, and that was what he referred to.

Q. Did you sell any badges to white people to 
Beach No. 1 on that day? A. I could not say.

Q. After you had this conversation with the 
Mayor did you sell any badges to white people for 
Beach No. 3? A. If we knew they were white we 
would not sell them badges for Beach No. 3.

Q. Why? A. Because we did not want the mix­
ture.

Q. What do you mean by that? A. The colored 
and white mixing.

Q. Mr. Wooding, were your actions, confining 
ourselves to July 15th or 16th, were your actions 
as a result of an attempt to use your own discre­
tion, or as a result of your conferences with the 
Mayor of the City of Long Branch and others? 
A. Both, to be honest. I think I was swayed by 
the talks that people gave me of the situation.

Q. Before having had these talks with the 
Mayor and the others you named, you were in­
clined to discharge your duties as set forth in this 
ordinance? A. That is right.

J. Arthur Wooding, for Prosecutrix— Direct.

10

20

30

40



58

Q. Without any thought of discrimination or 
what beaches they went to ? A. That is right.

Q. Now, how did you know if one went to the 
beach that they purposely bought the badge for? 
How did you know that they went to the beach? 
A. That was up to them. I did not know.

10 Q. So your only way in determining the con­
gestion was purely guess work?

Q. You were talking— Now, you said you talked 
to a Mr. Sherman ? A. I did not.

Q. To Mr. Brazo? A. Yes.
Q. Who is he? A. Commissioner of Public 

Safety.
Q. Of the City of Long Branch? A. Yes.
Q. Who is Mr. Nastasia? A. Commissioner of 

Streets.
20 Q. Who is Mr. Warded? A. Chief of Police of 

the City of Long Branch.
Q. After you had this conference or talk with 

these men who are connected with the govern­
ment of the City of Long Branch, then it was that 
you formulated a definite policy to make Beach 
No. 3 solely and exclusively a beach for the colored 
people?

Mr. Warwick: I object to the question.
oq It is very leading and putting the words in

the mouth of the witness.
The Commissioner: The objection has 

been noted. Answer the question.

A. Yes.
Q. Mr. Wooding, what kind of beach did you 

intend Beach No. 3 to be?

Mr. Warwick: I object. Whatever his 
intentions are have nothing to do with this 
matter. This proceeding is an attack on

J. Arthur Wooding, for Prosecutrix— Direct.

40



59

the validity of an ordinance providing for 
the maintenance of the public beaches of 
the City of Long Branch in which specific 
authority is given to the Clerk for the issu­
ance of privileges to the applicants. What 
the intention of the City Clerk is is not 
pertinent to the issue and is not in any way 10 
involved in this proceeding.

Mr. Golden: The objection has been 
noted. Answer the question.

A. Beach No. 3 was set up as a bathing beach 
with the thought in mind that the colored people 
would use it.

Q. Do you mean use it exclusively? A. Yes.
Q. In other words, there was a denial generally 

of all applications for colored people for Beach 20 
No. 1, Beach No. 2, and Beach No. 4? A. I will 
answer that, “ Yes, after the first day.”

Q. Do you know Mrs. Allie Bullock, the prose­
cutrix in this matter! A. No, I don’t.

Q. Do you recall her making an application for 
a badge after registering on the 17th day of July?
A. No, sir.

Q. Does the record show that she did make such 
an application on the 17th day of July, 1938? A.
The records would not show that, unless she was 30 
issued a badge for Beach No. 3.

Q. Does it show that she made application for 
a badge for Beach No. 1? A. For Beach No. 1?

Q. Yes. A. No.
Q. Could you look at your records, Mr. Clerk, 

and tell us if on July 17th one Harry Friedman 
made application for Beach No. 4? A. I can’t 
tell you any more than on the other. I can tell 
you whether a tag was issued to him.

J. Arthur Wooding, for Prosecutrix— Direct.

40



60

Exhibit P-3, Application of Harold Friedman.

Q. That is what we want. We want to know 
whether a tag was issued for Beach No. 4. A. I 
see no application for a badge issued for Beach 
No. 4.

Q. None for Beach No. 4! A. No.
Q. How about Beach No. 1? A. For that day? 

10 Q. Yes. A. For Friedman?
Q. Yes. A. What is the first name?
Q. Harry Ffriedman. A. Arc you sure that 

that is the right name? We have one for Harold 
Friedman of 156 Union Avenue.

Q. Yes, that is it. Does that show a transfer 
from Beach No. 4 to Beach No. 1?

The Commissioner: The application of 
Harold Friedman is introduced into the 

20  record and is marked Exhibit P-3.
The application of Harold Friedman 

reads as follows:

Bathing Registration Resident

City oe Long Branch
NEW JERSEY.

Badge No. 2993 265 Date: 7/17/38 
Name Harold Friedman

30 Address 156 Union Avenue, Long Branch.
In accordance with an ordinance of the 

City of Long Branch regulating the use of 
the bathing beaches of the City of Long 
Branch by bathers, I represent that I am a 
bona fide resident of the City of Long 
Branch, and I herewith make application 
for bathing privileges for the season of 
1938, and herewith pay the fee of One Dol­
lar ($1.00 ) for the same. I agree to abide 
by the rules and regulations set forth in the

40



61

said ordinance and assume all risks inci­
dental thereto.

Harold Friedman, 
Signature of Applicant.

Q. What were the receipts for the use of the 
beaches for the season of 1938?

Mr. Warwick: I object to that on the 
ground the question of the amount of re­
ceipts, or badges issued, is not relevant or 
pertinent to the issue.

A. $3,115.00.
Q. How much? A. $3,115.00.
Q. And what was the cost of the operation of 

the beaches? A. I don’t know.
Q. Do you know what the receipts were for the 

last year? A. No, sir.
Q. Mr. Wooding, you did issue some badges at 

some time to colored people for beaches other 
than Beach No. 3? A. I believe that was so.

Q. Did anything ever come to your attention 
of any trouble or any disturbances as to their use 
of Beaches No. 1, No. 2 and No. 4? A. No.

Q. There never was any trouble? A. No.
Mr. Yancey: That is all.
The Commissioner: It is twelve o ’clock. 

Let us adjourn one hour for lunch.
The Commissioner: Mr. Warwick, do 

you want to cross examine this witness?
Mr. Warwick: I do. Yes.
Mr. Yancey: Will you consent, Mr. 

Warwick to put another witness on before 
your cross examination of this witness? 
This witness is from up state and must get 
back as soon as possible.

J. Arthur Wooding, for Prosecutrix—Direct.

10

20

30

40



10

20

30

40

62

Mr. Yancey: With reference to this 
other witness, Judge, we could almost stip­
ulate her testimony. Could we hold over a 
little longer, your Honor, to examine some 
witnesses which Dr. McKelvie says are only 
free during lunch time?

The Commissioner: When will they be 
here!

Mr. Yancey: Between twelve and one, 
but they have not come here yet.

The Commissioner: Mr. Warwick, do 
you want to examine Mr. Wooding!

Mr. Warwick: Yes, I do. I was expect­
ing to do it after lunch.

(It was consented to by Mr. Warwick to 
cross examine Mr. Wooding later.)

Virginia Audrey Flowers, for Prosecutrix
— Direct.

V irginia A udrey Flowers, called as a witness 
on behalf of the prosecutrix, being first duly 
sworn, testified as follows:

Direct examination by Mr. Upperman:

Mr. Upperman: Can we stipulate that 
Miss Flowers is one who could be, and ordi­
narily would be taken for a member of the 
white race? In any other country she 
would be considered as a member of the 
white race. We could give a number of 
specific instances.

The Commissioner: Suppose we do this? 
Let us say that this witness appears to be 
white and under ordinary circumstances 
would be taken to be a white person and 
not a member of the negro race.

(After off-the-record discussion.)



63

Q. Miss Flowers, where do you live? A. Eight 
now?

Q. Yes. A. 206 North Avenue, Cranford, New 
Jersey.

Q. Were you in Long Branch during the months 
of July and August of this year? A. Until Au­
gust 14th. I left then.

Q. Are you acquainted with Mrs. Anna Mumby ? 
A. Yes.

Q. Did you, during the month of July, 1938, 
apply to the City Clerk of the City of Long 
Branch for bathing privileges to bathe on Beach 
No. 4? A. Yes.

Q. In whose name? A. I got seven badges.
Q. For whom? Name the people for whom you 

procured badges. A. Miss Cathleen Mumby, 
Miss Sylvia Callard, Mr. Waif redo Leon, Mr. 
Charles Callard, Miss Alice Callard, Mrs. Vic­
toria Leon and Mr. Leon.

Q. Are you acquainted with all seven of these 
persons? A. Yes.

Q. Are they colored or white? A. Colored.
Q. When did you make these purchases? A. I 

think it was about the third week in July.
Q. About the third week in July? A. Yes.

Mr. Upperman: That is all.

Cross examination by Mr. Warwick:

Q. You made application for a beach privilege 
for yourself, did you not? A. No, I did not.

Q. You did not? A. No.
Q. Therefore you did not use the facilities of 

the bathing beaches? A. No.
Q. Who signed these applications that you have 

just mentioned? A. When I purchased the tags 
there was a tall fellow who took the applications.

Virginia Audrey Flowers, for Prosecutrix
■— Cross.

30

20

30

40



64

Q. You had to sign a card? A. I signed them 
myself.

Q. You signed them? A. Yes.
Q. In each case, did you make these applica­

tions separately or in bulk? A. I made four the 
first time and three the nest time.

10 Q. Stating that you were doing it on behalf of 
friends? A. Yes.

Q. And they were promptly granted? A. Yes.
Q. No questions were raised? A. No.

Mr. Warwick: That is all.
The Commissioner: Since the witnesses 

which you expected have not arrived, we 
will adjourn for lunch until 1 :15 o ’clock.

J. Arthur Wooding, for Prosecutrix— Cross.

20
(The Hearing Was Resumed.)

Cross examination of J. Arthur Wooding 
hy Mr. Warwick:

Q. Mr. Wooding, you testified that there are 
four public beaches, designated and known as No. 
1, No. 2, No. 3 and No. 4, is that correct? A. That 
is right.

3 0  Q. That designation was made by the Depart­
ment of Parks and Public Property for the pur­
pose of the issuing of the seasonal tags, was it? 
A. No, I believe it was done by me.

Q. It was done by you? A. Yes.
Q. These four beaches are they all adjacent to 

one another, all four? A. No.
Q. Beach No. 1 is located in what we call the 

North Long Branch section, is it not? A. Yes.
Q. Beach No. 2, is that adjacent to No. 1? A. 

It is.40



65

Q. How far distant is Beach No. 3 from No. 2? 
A. Approximately one half mile.

Q. Where is it located with respect to streets? 
A. Beach No. 3?

Q. Yes. A. It runs from a jetty which is north 
of Madison Avenue to about the north line of 
South Broadway.

Q. And Beach No. 4 is located where? A. 
Prom South Broadway to the pier which is about 
at Laird Street.

Q. Both Beaches No. 3 and No. 4 are approxi­
mately a block in length, are they not? A. Yes.

Q. Beach No. 1 is approximately how long? 
Would you say that that is about a block, or less? 
A. A little over a block considering the measure­
ment of No. 3 Beach.

Q. And Beach No. 2? A. That is a small beach. 
Q. Having a frontage of about how many feet? 

A. Fifty or sixty feet.
Q. Beaches No. 3 and No. 4 are located near the 

business section of the city, are they not? A. 
They are.

Q. Can you tell us how many tags were issued 
up to and including July 17th, 1938?

Mr. Yancey: Fix the time.

Q. From the time you started issuing badges 
up to and including July 17th, 1938, on Beach No. 
1? A. On Beach No. 1?

Q. Yes, how many were issued? Give us the 
total number? A. 823.

Q. And the total amount, including July 17th, 
for Beach No. 2? A. 133.

Q. And what was the total amount issued for 
Beach No. 3? A. 32.

Q. And Beach No. 4? A. 346.

J. Arthur Wooding, for Prosecutrix— Cross.

10

20

30

40



66

Q. Now, will you kindly tell me the total num­
ber of season permits issued for Beach No. 1, if 
you can?

Mr. Upperman: For the whole season?
Mr. Warwick: Yes.

 ̂ Mr. Upperman: What Beach?
Mr. Warwick: Beach No. 1.

A. 1,623.
Q. That is right. And for Beach No. 2? A. 

291.
Q. Beach No. 3? A. 139.
Q. And for Beach No. 4? A. 844.
Q. So that practically during the whole season 

and up to the very close of the season No. 3 Beach 
was the least congested beach of the four, was it 
not? A. Yes.

Q. Now, in your direct testimony you referred 
to what you termed ‘ ‘ refunds ’ ’, stating that there 
were two refunds made on July 25th, 1938. Will 
you kindly explain what you mean by refunds? 
A. On what date?

Q. On July 25th, 1938, or any refunds? A. 
On July 25th, it was on four guest badges which 
were a daily privilege for which they pay a de- 

3q posit of fifty cents and a charge of fifty cents for 
the use of the beach, and the refund was the re­
turning of the badges.

Q. That was the regular practice with respect 
to all daily permits? A. Yes.

Q. They would make a deposit for the badge 
and after they used the privilege they would get 
back fifty cents on the return of the badge? A. 
We would also make a charge of fifty cents on 
registering.

Q. All refunds are refunds of this type? A. 
No.

J. Arthur Wooding, for Prosecutrix— Cross.

40



67

Q. Excepting the $7.00 one on July 16th for 
seven tags? A. Yes, for seven tags.

Q. And in that case this was not so much a re­
fund as a return of their money ? A. It was a re­
turn of money and not a refund.

Q. You testified that on August 1st, 1938, 14 
tags were issued on 14 privileges for Beach No. 
2? A. Yes, 14 on August 1st.

Q. Will you kindly state the total number of 
tags issued for Beach No. 2 up to and including 
August 1st, 1938? A. 231.

Q. Now, in receiving applications and issuing 
tags, weren ’t you to a great extent guided by what 
you determined was the proper distribution for 
the respective beaches? A. Yes, I was somewhat.

Q. And that guide was the result of your 
records of the patronage of the respective beaches, 
was it not? A. Yes.

Q. In other words, if there was heavy patron­
age to Beach No. 4, you would attempt to issue 
badges to other beaches than to Beach No. 4, 
would you not? A. Yes.

Q. Was not the consideration of the residence 
of the applicant also taken into account in grant­
ing permits? A. It was.

Q. Were privileges, or badges representing the 
privilege, issued to people of the colored race for 
all four beaches? A. They were.

Mr. Yancey: A little specific on that. 
You mean all the time?

Mr. Warwick: I think the answer is in 
response to the question, is it not? Any 
way, it is up to the Court to determine later 
on.

Q. Mr. Wooding, the prosecutrix, Allie Bullock, 
states in her petition that she resides at No. 429

J. Arthur Wooding, for Prosecutrix— Cross.

10

20

30

40



68

Hendrickson Avenue, Long Branch. You know 
Hendrickson Avenue, do you not? A. Yes.

Q. You know where it is located? A. Yes.
Q. Is Hendrickson Avenue nearer to Beach No. 

1 than to Beaches No. 3 or No. 4? A. No.
Q. As a matter of fact, isn’t Hendrickson Ave- 

10 nue approximately three-quarters of a mile from 
Beaches No. 3 and No. 4, or can you give the ap­
proximate distance ? A. I think it is about three- 
quarters of a mile from Hendrickson Avenue to 
Beach No. 3 or to Beach No. 4.

Q. And what is the approximate distance from 
Beach No. 1 or No. 2? A, About one and one- 
quarter miles.

Q. Now in the course of your testimony you 
have mentioned some individuals who have, you 

20 say, on occasions discussed or talked to you about 
the patronage of these respective public beaches. 
Did any of these people that you have mentioned 
give you specific orders or directions ?

Mr. Yancey: We object to that. He has 
testified to that.

Q. What is your answer? A. No.
Q. And in the final analysis whatever you did 

„ was the result of your own interpretation of the 
ordinance and the carrying out of the same? A. 
Yes.

Q. Mr. Wooding, the ordinance provides that 
all persons desiring the use of the bathing facili­
ties and access to said beaches shall register in 
the City Clerk’s office and make application for 
the privilege at your office. That was carried out, 
was it not? A. Yes.

Q. The actual issuing of the badges was not 
solely confined to your office, though, was it? A. 
No.

J. Arthur Wooding, for Prosecutrix— Cross.

40



69

Q. You used other rooms in the building for the 
purpose, did you not? A. Yes, that is right.

Q. You know that there was, during the season 
of 1937, and at the present time, a state law with 
respect to the protection of beaches operated by 
private institutions and public beaches?

Mr. Yancey: Just a minute. We object 
to that. The objection to that question is 
that as far as we are able to determine this 
is not the issue before the Court and, there­
fore, it is irrelevant and immaterial and 
certainly incompetent.

Mr. Warwick: If the Court please, in re­
ply to Mr. Yancey’s objection I might state 
that it is before the Court because it is re­
cited in the ordinance and made part of it, 
in that the governing body in Section 4 de­
clares that the City of Long Branch shall 
comply with all the laws regarding the 
safety of bathers and shall provide all such 
safety devices for patrons as are required 
by the laws of New Jersey and particularly 
shall keep and observe all the provisions of 
Chapter 174 of the Acts of the Legislature 
of the State of New Jersey for the year 
1900, which is the Act I refer to.

Mr. Yancey: But I think you have to take 
its entire contents due to the fact that the 
testimony that we have elicited here this 
afternoon has to do with the operation and 
carrying out of this city ordinance and all 
the testimony given by the Clerk of the 
city has had to do with his functions in that 
office respecting this particular city ordi­
nance. And coming to this particular sec­
tion having to do with something which we 
have not discussed one way or the other it

J. Arthur Wooding, for Prosecutrix— Cross.

10

20

30

40



70

is not material. He has said what he has 
done by virtue of a city ordinance which 
we say is illegal. However, it certainly is 
immaterial whether he knew it or not.

Mr. Upperman: And a further reason. 
The ordinance, section 4, just quoted by 

10 Judge Warwick refers to acts which must be
performed by the City of Long Branch and 
states that the Director of Parks and Pub­
lic Property may act in certain instances, 
but the City Clerk acts under this ordinance 
only as to such acts as have been delegated 
to him by this ordinance, and certainly the 
enforcement of Chapter 174 of the laws of 
1900 have not been delegated to the City 
Clerk under this ordinance and, therefore, 
his knowledge of the provisions of that law 
would be immaterial.

The Commissioner: Answer the question.

A. What is the question!

(Question repeated by the stenographer.)

A. I did.
Q. You knew that it was made one of the decla­

rations of this ordinance! A. Yes.
Q. Do you know, Mr. Wooding, how many life 

savers were provided at each of the beaches! 
A. No, I do not.

Q. In making distribution of the patronage to 
these beaches, did you also have that law in mind! 
A. Yes.

Q. Y ou knew too that the Amending Ordinance 
in question set forth the purpose of dividing up 
the beach patronage! A. I did.

Q. And the reason for it! A. Yes.

J. Arthur Wooding, for Prosecutrix— Cross.

40



71

Q. And wasn’t that reason, as stated in the ordi­
nance, for the purpose of avoiding congestion on 
any of such beaches and for the proper distribu­
tion of patronage and for the better protection of 
patrons? A. That is right.

Q. So that in issuing these badges, that was one 
of the features that you had in mind in spreading 10 
out the patronage?

Mr. Upperman: I object for the reason 
that on his direct examination he clearly 
testified that his purpose was not to relieve 
congestion nor to accomplish a distribution.
Now, for Mr. Warwick to raise a question 
which premises that congestion and distri­
bution was the purpose is contrary to his 
direct testimony.

Mr. Warwick: My recollection of the 
direct testimony may be in error, but it is 
that he referred to the question of con­
gestion as one of the basis. There may be 
others, but the record will speak for itself.

Mr. Upperman: Well, I am making this 
objection.

Mr. Warwick: That is all.

Re-direct examination by Mr. Yancey:

Q. Mr. Wooding, when an applicant of the col­
ored race came before you for a registration and 
privilege, did you make any inquiries as to that 
person’s residence with respect to the distance 
from the beach to their homes? A. No, I did not.

Q. As a matter of fact, all that you did was to 
issue the license for Beach No. 3? A. Yes, if they 
so desired.

Q. If they so desired? A. Yes.

J. Arthur Wooding, for Prosecutrix— Re-direct.

40



72

Q. Now you testified that during this season 
Beach No. 2 was apparently the most congested 
from the number of badges you sold? A. For the 
size of the beach.

Q. Yes. You had a record of the number of col­
ored persons, that is members of the colored race, 

10 who inquired for badges to go to Beaches No. 1, 
No. 2 and No. 4? A. No.

Q. You have no record? A. No.
Q. If Beach No. 2 was congested and a colored 

person inquired for Beach No. 1 or No. 4 would 
you give it to him? A. In some cases.

Q. Name the cases. How many cases?
Mr. Warwick: If you can recall.

A. About five or six.
Q. Five or six? A. Five or six that I know of. 
Q. Would you say whether five or six colored 

persons applied for permission to go on those 
beaches during that period? A. Yes, there were 
more than five or six.

Q. But you only issued to five or six? A. Yes. 
Q. Did you at any time during the summer or 

during the season refuse to sell a white person a 
badge to Beaches No. 1 and No. 2? A. Yes.

Q. You did? A. Yes.
Q. Did you ever sell any of them a badge for 

Beach No. 3? A. Not to my knowledge.
Q. Did you ever advise them that Beach No. 1 

and Beach No. 2 was congested and that Beach 
No. 3 was not? A. Who?

Q. White people. A. I did advise them that 
Beach No. 2 was crowded and to take another 
beach.

Q. To take another beach? Did you suggest a 
beach to them? A. I don’t remember that I did.

J. Arthur Wooding, for Prosecutrix— Re-direct.

40



73

Q. Now you testified that you are familiar with 
the provisions of Chapter 174 of the laws of 1900. 
Did you have this law in mind when you made dis­
tribution of the patronage? A. Yes.

Q. Can you give us briefly the provisions of 
that law? A. No, I can’t. I have read it, but I 
am not familiar enough with it to repeat it to you.

Q. What did you have in mind? A. There was 
more help to take care of a bigger crowd at 
Beaches No. 1, No. 3 and No. 4 than there was on 
No. 2 to take care of the crowd.

Q. What provision of the law is that? A. 
Where did you get that from?

Q. Only once did you have any notice that Beach 
No. 2 was crowded and that was from Mr. Potter. 
You did not make any inspection of the beach? 
A. Yes, I did.

Q. Did you go down every day? A. No.
Q. Did you have any agents to notify you as to 

the status of Beaches No. 1, No. 3 and No. 4? A. 
No.

Q. You only acted on what you thought to be 
the condition? A. Yes.

Q. You had no way of telling whether the per­
son, after paying for the tag, went to the beach? 
A. No.

Q. These other offices where badges were sold, 
they were under your supervision? A. Yes.

Q. And you also exercised supervision over this 
supplementary office ? A. That is right.

Q. It was your purpose, Mr. Wooding, to build 
as to Beach No. 3 a segregated beach for colored 
people ?

Mr. Warwick: I object to what his pur­
pose was. The attack is against the legis­
lature of the governing body of the City

J. Arthur Wooding, for Prosecutrix— Re-direct.

10

20

30

40



74

of Long Branch in the nature of an ordi­
nance and what the purpose of this witness 
was is in no way pertinent to the issue, the 
issue being the validity of this ordinance in 
question.

Mr. TTpperman: Your honor, this is a 
10 man in whom is vested discretion to regu­

late the patronage as far as patronage and 
distribution is concerned and it certainly 
is very material to show how he exercised 
that discretion.

A. Yes.
Q. Under what section of the ordinance were 

you operating? A. My own discretion.
Q. You were not operating under the ordinance? 

20 A. No.
Q. So when you said on the cross examination 

that your actions were your own interpretation 
of the ordinance and the carrying out of the same, 
you did not mean it? A. How is that?

Q. When you said on cross examination that 
your actions were your own in the interpretation 
of the ordinance and the carrying out of the same, 
you did not mean it? A. Yes, I meant it.

Q. I will show you the ordinance and ask you 
d0 what pait of the ordinance you were operating 

under?

Mr. Warwick: He was operating under 
all of it.

J. Arthur Wooding, for Prosecutrix— Re-direct.

A. Yes, I was operating under all of it.
Q. You can’t point out any specific instance 

when you were not? A. No.
Q. Referring to Subdivision 2 of Section 2, were

40 ny°U trying to avoid congestion on any of the 
beaches? A. Yes.



75

Q. In what way? A. Did you say on No. 1 and 
No. 2?

Q. I spoke of Subdivision 2 of Section 2 of the 
ordinance. In building up this segregated beach 
on Beach No. 3, were .you trying to avoid conges­
tion upon Beaches No. 1, No. 2 and No. 4? A. 
Yes.

Q. You started about July 16th or 17th. A. On 
the 16th.

Q. You testified that you did not hear of the 
congestion until August 1st. How do you explain 
this? A. As I testified before, I have a record of 
July. On July 15th, there was 208 for Beach No. 
1, 70 for Beach No. 2, 4 for Beach No. 3 and 101 
for Beach No. 4.

Q. If that is the case why didn’t you send every­
body, or at least the majority, to Beach No. 3 
where you did not have any one ? A. On the first 
day the percentage was all on Beach No. 1 and 
Beach No. 2. On Beach No. 3 there was only 4 
tags sold. It looked like they were making a 
grand rush for Beaches No. 1 and No. 2.

Q. Who are they? A. Everybody.
Q. I see.

Mr. Warwick: You mean the bathing 
public?

A. Yes, the bathing public.
Q. I f you were having a grand rush on No. 1 

why didn’t you send them to No. 3? A. Of course, 
No. 1 with 208 didn’t mean anything, except the 
percentage. Altogether on Beach No. 1 there 
was some 1,623.

Q. You still haven’t answered my question. A. 
There was no congestion on Beach No. 1 with 208.

Q. How about thel6th? A. No, there was 436.
Q. The testimony is in that you refused colored 

people on July 16th. If there was no congestion

J. Arthur Wooding, for Prosecutrix— Re-direct.

10

20

30

40



76

why couldn’t they get Beaches No. 1, No. 2 and 
No. 4? A. The answer is for the protection of 
the public.

Q. Then it was not for congestion, was it! A. 
No.

Q. Would you mind telling us what it was for? 
A. The protection of the public.

Q. In what way or manner? A. From the mix­
ing of the colored and white together, as I stated 
before this morning.

Q. Now, you have a copy of the ordinance be­
fore you, is there anything in there that tells you 
that the colored should be separated from the 
white? A. For the benefit of the public.

Q. Is there anything in the ordinance that tells 
you that the colored should be separated from the 

2 Q white for the benefit of the public? A. No, sir.
Q. Then won’t you kindly explain how you 

were acting under the ordinance? A. The an­
swer is, “ I was not,”  I guess.

Q. In view of your statement just now, then 
you were not acting under the ordinance or your 
interpretation of the ordinance in carrying out 
the same? A. As far as colored people were con­
cerned.

Q. You were or were not? A. I was not.
30 Mr. Yancey: I guess I am through with

Mr. Wooding. That is all.
The Commissioner: Is there any further 

cross examination, Mr. Warwick?
Mr. Warwick: Yes.

Re-cross examination by Mr. Warwick:

Q. So you admit, Mr. Wooding, that you did not 
altogether confine yourself to the terms of the 

4 q ordinance? A. Yes.

J. Arthur Wooding, for Prosecutrix— Re-cross.



77

Q. But you were guided in what you considered 
was distribution by the number of tags issued for 
the respective beaches, were you not? A. Yes.

Q. That guide was your own record at City 
Hall? A. Yes.

Q. Now, with respect to Beach No. 3, Mr. Wood­
ing, let me ask you. In 1936, in the season of 10 
1936, was that beach used as a public beach by the 
City?

Mr. Yancey: It is immaterial whether it 
was in 1936, whether it was a public or pri­
vate or anything else, and it is incompetent 
for this issue.

A. No.
Q. Not by the City? A. No. 2 q
Q. In 1936 it was rented out to a private indi­

vidual, was it not? A. Yes.
Q. And at that time and for many years prior 

thereto was used solely by the colored people of 
the City?

Mr. ITpperman: Objected to. It is im­
material for the reason that we are argu­
ing under an ordinance passed under date 
of May 24th, 1938.

30
Q. So that in making your distribution in 1938 

when the City operated this and the other beaches, 
you naturally issued permits for Beach No. 3 to 
the colored people as they had before used this 
beach?

Mr. Upperman: Objected to as imma­
terial for the reason that the City Clerk is 
bound by the discretion delegated to him 
under this ordinance.

J. Arthur Wooding, for Prosecutrix— Re-cross.

40



78

Q. Now, when an applicant came to you for 
privilege on the beach, he filed an application card, 
did he not? A. That is right.

Q. Haven’t there been instances, let us say, 
when an applicant, let us say, from Morris Ave­
nue made an application that you would suggest 

10 to him the nearest beach to his home? A. Yes, I 
would.

Q. You said in your re-direct examination that 
you did not know any of the addresses when you 
issued a permit, you were in error in that, were 
you not?

Mr. Upperman: I object to that, and for 
Judge Warwick to go back and to question 
the gentleman as to whether or not he was 

2o in error— There was one or two times when
he said he didn’t do it.

Mr. Warwick: I think it is a proper func­
tion of cross examination to call the wit­
ness’ attention to what appears to be lapses 
in his thoughts as to a particular question.

Mr. Upperman: But this is re-cross on 
re-direct examination.

A. I didn’t know the addresses.
3 q Q. But when an applicant came in he filled out 

a card, did he not? A. That is right.
Q. And he would fill out his address on that 

card? A. Yes.
Q. So that when you issued the badge you would 

know where he resided? A. Yes, sir.
Q. There have been instances, as you have 

stated, that you have suggested a beach nearer to 
the applicant s home aftei' getting' his cai'd? A. 
\ es. Many times they wanted to know the nearest 

40 ^each to where they lived and we gave them this 
information.

J. Arthur Wooding, for Prosecutrix— Re-cross.



79

Mr. Warwick: That is all.

By Mr. Upperman:
Q. And when a colored person would apply for 

bathing facilities, would you suggest the nearest 
beach to the colored person! A. No, I don’t 
think I did.

Q. You never did? A. I was never asked.
Q. If a white person made application and 

didn’t ask for the nearest beach, would you make 
any suggestion? A. I asked them which beach 
they wanted to go to.

Q. Did you ask that same question to colored 
applicants? A. No.

Q. You testified that congestion and distribu­
tion was considered in dealing with the appli­
cants in making out of the badges, but in your 
dealing with colored people in sending them solely 
to Beach No. 3, congestion and distribution were 
not your motives? Were they? A. No.

Mr. Upperman: That is all.

By Mr. Warwick:
Q. You mentioned, Mr. Wooding, in your di­

rect examination the names of some people who 
had talked to you about the patronage on these 
public beaches, among them a Mr. Van Dyke, a 
Mr. Reid and Mr. Dev. They are men employed 
in the office? A. Yes, in my office.

Q. The discussions you had were just general 
discussions? A. Yes.

Q. They did not give you orders of what you 
should do? A. No.

Q. And that is also true in respect to Mr. War- 
dell who you identify as the chief? A. Yes.

Q. Most of all, he had no power as far as you 
know? A. No.

J. Arthur Wooding, for Prosecutrix— Re-cross.

10

20

30

40



80

Q. Is that also true of Mayor Evans, Commis­
sioner Brazo and Commissioner Nastasia? None 
of these men gave you directions or orders? A. 
No.

Q. There were other citizens in town who had 
discussions with you regarding the beaches? A.

10 On July 16th I had at least fifty telephone calls 
between 9:00 A. M. and noon and a delegation of 
about fifteen in the office at 10:00 A. M., and 
later during the day I had twenty-five or thirty 
more.

Q. You also had delegations from the other 
side representing the colored people? A. Yes, I 
was in a hot spot.

Mr. Warwick: That is all.
90 By Mr. Yancey:

Q. You did tell the Keverend Jackson that 
Mayor Evans directed you not to sell badges to 
the colored people except for Beach No. 3? A. 
No.

Q. Did you tell that to Dr. McKelvie? A. No.
Q. Did you tell any one that you had directions 

from the Mayor to see that the colored people 
only got Beach No. 3? A. No.

30 Q. You understood from the general conversa­
tions and the telephone calls that you should put 
them on Beach No. 3? A. Yes, that is right.

Q. As a matter of fact you are an appointee of 
the Commissioners! A. Yes, all of them.

Q. But you come under the Mayor? A. After 
the first appointment.

Q. And you had a conversation with the Mayor 
about the beaches? A. Yes.

Mr. Yancey: That is all.

J. Arthur Wooding, for Prosecutrix Re cross.

40



81

Mrs. Anna Mumby, for Prosecutrix—Direct. 

By Mr. Warwick:

Q. Let us clear up the political angle. You 
were appointed City Clerk by the Board of Com­
missioners of five members who consist of Frank 
Brazo, J. William Jones, Paul Nastasia, Walton 
Sherman and Mayor Evans? A. That is right.

Mr. Warwick: That is all.

Mrs. Anna Mitmby, called as a witness on be­
half of the prosecutrix, being first duly sworn, tes­
tified as follows:

Direct examination by Mr. Upperman:

Q. Mrs. Mumby, where do you live? A. 214 20
Monmouth Avenue, Long Branch.

Q. Bid you live there in July, 1938? A. Yes.
Q. Bid you have occasion during July, 1938 to 

apply to the Clerk of the City of Long Branch for 
bathing tags? A. Yes, I did.

Q. Bid you purchase tags? A. Yes.
Q. What tags did you purchase? A. I pur­

chased tags for Beach No. 3.
Q. For whom? A. For Elisha Collard, Sylvia 

Collard, Mr. Leon, Victoria Leon, Walfredo Leon, 30 
Charles Collard and Cathleen Mumby.

Q. Now, Mrs. Mumby, these persons for whom 
you purchased tags, of what race are they? Are 
they members of the negro race or what race are 
they members of? A. Negro.

Q. You purchased tags for Beach No. 3 ? A 
Yes.

Q. You gave the tags to the persons for whom 
they were bought? A. Yes.

40



82

Q. And did they use the tags? A. They went 
down to the beach and there was no one there at 
Mrs. Dixon’s beach.

Q. What number is that beach? A. No. 3.
Q. What did they do? A. They came home and 

I took the tags back to City Hall the next day.
10 Q:. When was that? A. On a Sunday.

Q. What month? A. July.
Q. Some time in the middle of July? A. Yes.
Q. To whom did you take these tags this Sun­

day? A. I took them to Mr. Poole in charge of 
the front office.

Q. What did you tell him? A. I told him that 
I didn’t want that beach. It was a segregated 
beach and I wanted tags for Beach No. 4, or my 
money back. And he said that he couldn’t give 

20 me tags for Beach No. 4.
Q. Why? A. Because I was colored.
Q. What statement did he make to you at that 

time? A. He said that he could not give me the 
tags for Beach No. 4 and I asked for Mr. Wood­
ing. And then I talked to Mr. Wooding and I 
asked him why I could not have tags for Beach 
No. 4, and he said that he had orders not to issue 
tags to Beach No. 4 to colored people,

Q. Did he tell you from whom those orders 
20 came ?

Mr. Warwick: Objected to. It is clearly 
hearsay.

Mr. Upperman: This man is a defendant 
and any admissions made by him would cer­
tainly be binding upon him according to the 
Act.

Mr. Warwick: This is a certiorari to at­
tack the provisions of an ordinance, and 

40 the validity of an ordinance, and instituted

Mrs. Anna Murnby, for Prosecutrix— Direct.



83

by one Allie Bullock, prosecutrix, alleging 
that her rights had been discriminated 
against, and, therefore, the testimony of 
this witness is incompetent.

Q. What is your answer? A. What is the ques­
tion ?

Q. Did he tell you that he was given his orders 
by the Mayor? Did he mention his name? A. 
No, he said from the Mayor.

Q. What did you do then? A. I asked to see 
the Mayor.

Q. Did you see the Mayor? A. No.
Q. What did you do then? A. I told him that 

I wanted tags for Beach No. 4, or my money back, 
and so he returned my money and said that I 
could not have tags for Beach No. 4.

Q. Did you at any later time get tags for Beach 
No. 4? A. Yes. I sent Audrey Flowers and she 
got them.

Q. She is the young lady who testified that she 
got tags for those same people? A. Yes.

Q. For what beach? A. Beach No. 4.
Q. She got tags for these people you named for 

Beach No. 4? A. Yes.

Mr. Upperman: That is all.

Cross examination by Mr. Warwick:

Q. Mrs. Mumby, the day you went up and pur­
chased the tags originally was when? A. I think 
it was a Saturday morning.

Q. Do you know the date? A. I could not give 
you the exact date. It was the Saturday before 
the Sunday when Mr. Wooding returned the 
money.

Q. In the middle of July? A. Yes.

Mrs. Anna Mumby, for Prosecutrix— Cross.

10

20

30

40



84

Q. You asked for tags for Beach No. 4 at that 
time! A. I asked for tags for the beach, and 
they gave me tags for Beach No. 3 to go there.

Q. Did you go there! A. Yes.
Q. Did you get a tag for yourself! A. No.
Q. But you did get these tags for the people 

10 you just mentioned! A. Yes.
Q. Did they use them on that same day! A. 

Yes, they went down to the beach and there was 
no one there.

Q. Did you go down with them! A. My daugh­
ter did.

Q. You don’t know what happened! A. They 
told me.

Q. You don’t know of your own knowledge 
what happened! A. Only what they told me. 

20 There couldn’t be any. They came back.
Q. That, of course, is hearsay. From your own 

knowledge, from what you saw, you don’t know 
what happened! A. Yes.

Q. You didn’t see them go in! A. Yes, I saw 
them.

Q. You went down on the beach! A. Yes.
Q. Where did you go! A. I was on the board­

walk.
Q. And they were down on the beach! A. Yes. 

30 Q. Were they in bathing suits! A. Yes.
Q. Did they go in bathing that day! A. They 

didn’t stay. We all came back again.
Q. Do you know whether there was any one 

there! A. Yes, there wasn’t any one there.
Q. 1 ou didn t go down on the beach! A. I was 

on the boardwalk looking over.
Q. Is it possible that some one was there and 

you didn’t see them! A. I don’t know.
Q. On that particular beach there are house 

40 facilities! A. Yes.

Mrs. Anna Mumby, for Prosecutrix—Cross.



85

Q. There are bathing houses? A. There are a 
few.

Q. There are several. Some ninety as a matter 
of fact? A. Ninety? I never saw them.

Q. And there is also a kind of pavilion attached 
to Beach No. 3? A. Yes.

Q. And did you see the pavilion? A. You 10 
could see the pavilion from where I was standing.

Q. With benches on it? A. Yes.
Q. Those facilities were all there? A. Yes.
Q. But you didn’t see any one on the beach? No 

one in the way of a superintendent or manager 
directing the operations of the beach? A. Yes.
No.

Q. You did not? A. No.
Q. You say that this was on a Saturday? A.

Yes. 20
Q. Did they go back again on Sunday? A. 

Sunday morning the first thing, I took the------
Q. Just answer the question. Did they go back 

again on Sunday to the beach? A. No.
Q. You say that you took the tags from all 

these people and Sunday you went back to City 
Hall and saw a Mr. Poole? A. I presume it was 
Mr. Poole.

Q. It was not Mr. Wooding? A. No, it wasn’t 
Mr. Wooding. 30

Q. Later on, as you say, all of these people you 
mention did obtain privileges on Beach No. 4?
A. Yes, through Audrey Flowers.

Q. And used the privilege? A. Yes.
Q. For the rest of the season? A. Yes.

Mr. Warwick: That is all.

Mrs. Anna Mumby, for Prosecutrix— Cross.

40



Mbs. Allie Bullock, the prosecutrix, being 
called as a witness on her own behalf, and being- 
first duly sworn, testified as follows:

Direct examination by Mr. Upperman:

Q. Mrs. Bullock, where do you live? A. 439 
Hendrickson Avenue, Long Branch.

Q. How long have you resided in Long Branch? 
A. For thirteen years.

Q. What race are you a member of? A. 
Negro.

Q. Negro? A. Yes, negro.
Q. Are you married Mrs. Bullock? A. Yes.
Q. What is your husband’s name? A. William 

L. Bullock.
Q. Does he reside in Long Branch? A. Yes.
Q. At the same address? A. Yes.
Q. Do you own property in the City of Long 

Branch? A. In my husband’s name.
Q. And as such, you are a tax payer? A. Yes.
Q. Mrs. Bullock, in respect to your home and 

the beach or the beaches in Long Branch, which 
beach is closest to your home? A. The most con­
venient beach is the North Long Branch beach.

Mr. Warwick: I move to strike out the 
answer as not responsive.

Q. This is the closest to you? A. I never 
measured the distance, I could not say. I could 
not say which is the closest. The most convenient 
to reach is Beach No. 1 because I would go to it 
from Joline Avenue.

Q. When you say that Beach No. 1 is the most 
convenient for you, how do you arrive at that? 
A. Because I prefer that beach.

Q. Is it because it is more convenient for you 
to reach? A. It is easier to reach by going to

Mrs. Allie Bullock, Prosecutrix— Direct.



87

Joline Avenue and then straight down Atlantic 
Avenue.

Q. It is easy to reach down Atlantic Avenue? 
A. Yes, I am near Seventh Avenue, and I can go 
down Atlantic Avenue to Beach No. 1.

Q. Of all four beaches, which is the most con­
venient for you? A. Beach No. 1.

Q. Of all four beaches, which do you prefer? 
A. Beach No. 1.

Q. Do you recall Sunday, July 17th, 1938? A. 
Ido.

Q. Did you have occasion to appear before the 
City Clerk of Long Branch on that date? A. 
Yes.

Q. Who was with you? A. Mrs. Bennett, Mrs. 
Sample, Bachel Redd, Oliver Newton and Rev. 
Jackson.

Q. Did you have a conference with Mr. Wood­
ing, the City Clerk? A. I did.

Q. What was the nature of your conversation 
with him? A. Before my conversation with Mr. 
Wooding, I applied for a registration card.

Q. To whom did you make that application? 
A. To the gentleman sitting at the desk.

Q. What desk? A. The desk in the office where 
they were issuing tags.

Q. Were tags being issued that day? A. Yes. 
Q. Did you make application then? A. Yes, 

I made an application card out and handed it to 
him with One Dollar and told him that I wanted a 
tag for Beach No. 1, and he said that he could not 
issue a tag for that beach to me.

Q. Did he give you any reason why he would 
not issue it to you? A. I asked him why and he 
said he could only issue a badge to Beach No. 3 
to me, and I asked him why and he said that he was 
told not to issue tags to any colored people to any

Mrs. Allie Bullock, Prosecutrix— Direct.

10

20

30

40



88

beach except Beach No. 3. And I asked him why 
and he said that that was the orders from the boss 
or the man who hired him. And I asked him who 
hired him and he said Mr. Wooding. I think Bev. 
Jackson brought Mr. Wooding in and I asked him 
the same questions I asked the man at the desk and 

10 he said that he couldn’t issue any tags to any 
colored people for any beach except Beach No. 3. 
He said he was very sorry but those were his 
orders and he must follow them. And I asked 
him who gave him those orders and he said that 
the Mayor of the city did.

Q. What else did he say? A. I said to him 
that if I went to the same window to pay my taxes 
as every one else did, why couldn’t I get a tag for 
any beach I wanted. He said that he was very 

20 sorry but that he could not issue any beach to 
me. He said that he had orders not to issue tags 
for any colored people except to Beach No. 3.

Q. What happened to the card you filled out 
and the One Dollar fee you offered? A. I took 
the card back and I put the One Dollar back in my 
pocket book.

Q. Did you offer him the One Dollar? A. 
Sure, with the registration card.

Q. What time of the day was it? A. About 
30 1 :30 in the afternoon.

Mr. Hpperman: That is all.

Cross examination by Mr. Warwick:

Q. You say, Mrs. Bullock, that your home is 
most convenient to Beach No. 1? A. Yes.

Q. Is that right? A. Yes.
Q. You give the reason for that supposed con­

venience stating that it is because you prefer 
40 Beach No. 1, is that right? A. Yes. For both

Mrs. Allie Bulloch, Prosecutrix— Cross.



89

reasons. Because of convenience and because I 
prefer it.

Q. As a matter of fact, isn’t it more convenient 
for you to go to Beach No. 3 or Beach No. 4? A. 
Why so? I would have to go down to Broadway, 
so it would not be more convenient.

Q. Isn’t your home much closer to Beaches No. 
3 and No. 4? A. I have never measured the dis­
tance, and for that reason I don’t know.

Q. You don’t know the distance from each 
beach? A. No.

Q. In going to Beach No. 1 you would walk 
down? A. Sure, I would walk down.

Q. Don’t you know the walking distance to 
Beaches No. 3 and No. 4 is much shorter? A. 
That doesn’t make any difference to me.

Q. You do know, as a matter of fact that your 
home is closer to Beaches No. 3 and No. 4? A. 
I don’t know whether it is. I have never measured 
the distance.

Q. You are the prosecutrix in this case? A. 
Yes, sir.

Q. And you filed a petition with the Court? A. 
Yes, sir.

Q. Didn’t you represent in that petition that 
geographically you were situate closer to Beach 
No. 1 than to Beach No. 3?

Mr. Upperinan: Objected to as imma­
terial.

Q. Wliat is your answer? A. I thought at first 
that it was closer, but as I was thinking after­
wards—I couldn’t say just exactly the distance, 
but I know that I prefer that beach and it was 
more convenient.

Q. If you did not know the distance, why did 
you make this representation to the Court for the

Mrs. Allie Bulloch, Prosecutrix— Cross.

10

20

30

40



90

purpose of this writ? A. I didn’t represent it to 
get the writ especially.

Q. Not to get the writ? You did not? A. No.
Q. You signed an affidavit verifying the truth 

of the statement that you lived closer to Beach 
No. 1?

Mr. Upperman: Objected to. At first 
she thought it a fact and it is useless repe­
tition and further the petition speaks for 
itself.

Mr. Yancey: It is immaterial and incom­
petent at this time in view of the testimony 
heretofore given.

Q. So that at the time you made this repre- 
sentation, you did not know? A. I thought it was 
and now you speak as though it wasn’t. I haven’t 
measured the distance and I wouldn’t say. I 
didn’t say that I had measured the distance. I 
said it was more convenient.

Q. You say it now, but you didn’t say it before. 
A. I said it was closer. But it is you that is giv­
ing me the impression that it is not closer and 
more convenient.

Q. Did you bathe during the summer of 1938? 
A. No, I did not. I was refused a tag.

Q. You didn’t bathe all summer because you 
didn’t get a tag for Beach No. 1? A. Yes.

Q. Did you bathe last year? A. No.
Q. In 1936? A. No.
Q. In 1935? A. No.

Mr. Yancey: Of course, all that is imma­
terial whether she bathed in 1940 or 1840.

Q. Now you say that on July 17th you did go 
40 City Hall and make your application and signed 

the usual card handed to you? A. I did.

Mrs. Allie Bullock, Prosecutrix— Cross.



91

Q. And when you handed in your card you made 
a request for the privilege on Beach No. 1? A.
I did.

Q. The man to whom you handed the card 
stated that he could not issue the tag to you for 
that beach! A. Yes.

Q. You say that he stated that those were his 10 
instructions from Mr. Wooding? A. Yes.

Q. You then wanted to see and speak to Mr. 
Wooding? A. Yes.

Q. Where was he? A. In the office.
Q. In the same office? A. Sure, in the same of­

fice. He came in afterwards. Then I had a con­
versation with him.

Q. You had a conversation with him then? A.
Yes, I asked him the same question.

Q. When you started this conversation with Mr. 20 
Wooding all these other people you mention, were 
they present? A. Yes.

Q. Was there a general conversation being had 
by all the people at the time with Mr. Wooding?
A. The different ones would ask questions and 
take turns. We would not all be talking at the 
same time.

Q. You were not all talking to him at the same 
time? A. No. I talked to him personally and 
then some one else. 30

Q. Did the Reverend Jackson have something 
to say also? A. Yes, before and afterward.

Q. You say that Mr. Wooding made the state­
ment that he got orders from the Mayor not to 
issue tags to colored people except to Beach No.
3? A. Yes.

Q. As a matter of fact, wasn’t that statement 
made by some one of your party? A. What state­
ment ?

Mrs. Allie Bullock, Prosecutrix— Cross.

40



92

Q. Wasn’t that statement made by some one of 
your party? A. I asked Mr. Wooding where he 
got his authority to say that I couldn’t have a tag 
for any beach except Beach No. 1.

Q. Isn’t it true that the Reverend Jackson put 
the words in Mr. Wooding’s mouth? A. He 

10 didn’t say a word. Mr. Wooding said that he got 
the orders from the Mayor.

Q. Who else was talking during this conversa­
tion. Was Mr. Newton? A. Yes. Yes, certainly 
he was there. We were all refused at the same 
time.

Q. There was a general conversation? A. No, 
one at a time. When I spoke to Mr. Wooding, 
just the two of us were talking, and the rest talked 
to him when their turn came.

20 Q. This was in the Clerk’s office? A. In the 
Clerk’s office.

Q. Where they issued the tags? A. Yes, where 
they issued the tags.

Q. You did not go back later and attempt to get 
a privilege on the beach? A. No, it was final 
when one man told me in the office.

Q. You made no further attempt? A. No.
Q. You made no attempt to bathe on any of 

these public beaches? A. No.
30 Q. You have taken no other means to force or 

require the City Clerk to issue you a permit? A. 
Why no.

Mr. Upperman: Objected to as imma­
terial.

Mr. Warwick: That is all.
The Commissioner: Have you any fur­

ther witnesses.
Mr. Upperman: Yes, I would like to call 

40 the Reverend Jackson.

Mrs. AUie Bulloch, Prosecutrix— Cross.



93

Reverend Lester K endall Jackson, called as 
a witness on behalf of the prosecutrix, being first 
duly sworn testified as follows:

Direct examination by Mr. Upperman:

Q. You were in the City of Long Branch dur­
ing the month of July, 19381 A. I was.

Q. Do you remember July 17th, 1938? A. Ido.
Q. Do you recall whether or not, you, in the 

presence of Mrs. Bullock and others, went to the 
City Clerk’s office at City Hall on that day! A. 
Yes, I led the delegation there.

Q. Were you present at the time a conversation 
was had with Mr. Wooding, the City Clerk, with 
reference to the bathing privileges! A. I was.

Q. Did you hear that conversation! A. I did.
Q. Did you take part in the conversation! A. 

I did.
Q. Describe just what happened. A. A party 

of four went in with me and made application for 
bathing facilities, namely Mrs. Allie Bullock of 
Hendrickson Avenue, Mrs. Rachel Redd of Lib­
erty Street, Miss Jeannette Sample of Potter Ave­
nue and Mr. Arthur Newton of Liberty Street. 
They all filled out their applications and passed 
them to the clerk, I guess you would call him. 
And they all requested Beach No. 1 ,1 think it was, 
and were told by the clerk that they could not have 
Beach No. 1 and that he could not issue badges 
to Beach No. 1. Mrs. Bullock asked him why and 
he said those were the orders, and we asked him 
who gave such orders as that and he said the man 
who hired him. We then asked him who hired 
him and he said Mr. Wooding. And then I asked 
where Mr. Wooding was and he said that he was 
in another part of the building somewhere and at

Reverend Lester Kendall Jackson,
for Prosecutrix— Direct.

10

20

30

40



94

that point I went out. All this was in the Mayor’s 
office and I went out and found Mr. Wooding in 
the hall and brought him in to the Ma3ror ’s office 
where this controversy was then going on. When 
he came in I stated to him that I had a delegation 

10 of taxpayers who had been refused badges on the 
ground that he had given orders not to let colored 
people have badges except for Beach No. 3. And 
he stated that those were his orders.

Q. Who said that. Mr. Wooding? A. Yes. I 
asked him under the ordinance where do you get 
such power and authority, and he stated that he 
was sorry, just as sorry as I was, hut those were 
the orders given to him and he had to abide by 
them. And then I asked him who gave him the 

20 orders and he said that Mayor Evans had strictly 
co m m anded and ordered him not to let colored 
people have tags for any beach except for Beach 
No. 3, and there was nothing he could do about 
it. He was sorry that he had to do this, he said, 
Mrs. Bullock went through practically the same 
discourse with him.

Q. Did other persons in this room make ap­
plication for the bathing facilities on Beach No. 
1? A. Yes.

30 Q- Did they fill out application cards? A. Yes.
Q. And did they tender the fee of One Dollar? 

A. Yes.
Q. This was in the room where beach tickets 

were being sold? A. Yes.
Q. And in the presence of Mr. Wooding? A. 

They filled out the applications and presented 
their money and I think at this time both the 
money and the applications were on the table.

Q. When Mr. Wooding came in? A. Yes.
40 Q. Did they make known to Mr. Wooding what 

they wanted? A. l 7es, they all did in order. After

Reverend Lester Kendall Jackson,
for Prosecutrix— Direct.



95

I spoke and Mrs. Bullock spoke. I am not sure 
whether Mrs. Sample and Mrs. Redd spoke or not, 
but Mrs. Bullock and Mr. Newton spoke.

Q. And it was refused to you? A. Yes.
Q. Did you have any further conversations with 

Mr. Wooding for the use of the beaches other 
than Beach No. 3 for the colored? A. Yes, I had 
other subsequent conversations with him.

Q. Did he make any statement to you as to 
whether or not members of the negro race could 
use the beaches other than Beach No. 3?

Mr. Warwick: Objected to. This pro­
ceeding is between Allie Bullock and the 
Clerk of the City and is based upon the al­
leged refusal to grant to the prosecutrix a 
privilege.

Mr. Yancey: In our petition we recited 
that the prosecutrix has been informed and 
verily believes that it was the purpose to 
separate and segregate the colored people 
to Beach No. 3, and for this reason I think 
the question is right and pertinent.

Q. What is the answer? A. Practically the 
same as on the 17th. He told me that the Mayor 
had instructed him not to let colored people have 
permits except for Beach No. 3.

Q. Subsequent to July 17th, 1938? A. It was 
the day that Mrs. Redd was there and later on 
that same day he said the very same thing.

Cross examination by Mr. Warwick:

Q. You say that you brought your delegation 
of four applicants there? A. Yes, sir.

Q. And all of the people involved all entered 
the office together, did they not? A. Yes, sir.

Reverend Lester Kendall Jackson,
for Prosecutrix— Cross.

10

20

30

40



96

Q. As a result of their presenting their applica­
tions this conference took place? A. Yes, sir.

Q. And you spoke with who ever was in charge? 
A. Yes, I think he was in charge.

Q. And you were informed that he could not 
10 issue the badges for the beaches requested be­

cause of instructions from Mr. Wooding? A. I 
wasn’t informed of that. Mrs. Bullock was.

Q. In your hearing? A. In my hearing.
Q. You located Mr. Wooding and brought him 

in? A. Yes.
Q. And then this conference again took place? 

A. Yes.
Q. There was quite considerable confusion 

among the whole group? A. There was five of 
20 us in there and as soon as one got through talk­

ing to him another had him.
Q. You say that Mr. Wooding very definitely 

stated to you that the action on his part was be­
cause of orders from the Mayor? A. He not 
only stated that but he also said that he was as 
sorry as I was and that there was nothing he 
could do about it.

Q. As a matter of fact, didn’t you say to him, 
“ I suppose you are doing this on instructions 

30 from Mayor Evans?”  A. Absolutely not.
• Q. That is not true? A. That is not true. I 

would have no way of telling whether he was 
sorry or not.

Q. Bid you personally make application for a 
privilege? A. Yes, sir.

Q. Was it granted to you? A. Yes, sir.
Q. For what beach? A. Beach No. 2, or Ave- 

nel.
Q. No issue was raised with you at that time? 

40 A. No, sir.

Reverend Lester Kendall Jackson,
for Prosecutrix— Cross.



97

Mr. Warwick: That is all.

Re-direct examination by Mr. Upperman:

Q. When did you make your application? A. 
On Friday.

Q. The first day of the sale started? A. Yes, 
sir.

Re-direct examination by Mr. Yancey:

Q. That was the day that they were isshing 
badges to practically every one who came in? A. 
Yes.

Q. You are a very well known figure in town, 
Reverend Jackson ? A. I don’t know about that. 
I am pastor of the First Baptist Church of Long 
Branch.

Q. And you are recognized as a leader among 
your people? A. I don’t know about that.

Mr. Yancey: That is all.

Jeanette Sample, for Prosecutrix— Direct.

Jeanette Sample, called as a witness on behalf 
of the prosecutrix, being first duly sworn, testi­
fied as follows:

Direct examination by Mr. Upperman:

Q. Where do you live? A. 259 Potter Ave­
nue, Long Branch.

Q. Did you live in Long Branch during July, 
1938? A. I did.

Q. Did you apply for the use of the beach and 
bathing facilities during July, 1938? A. I did.

Q. What date? A. On July 17th.
Q. Were you present with Reverend Jackson 

and Mrs. Bullock? A. Yes.

10

20

30

40



98

Jeanette Sample, for Prosecutrix— Direct.

10

20

30

40

Q. When yon made application for bathing 
facilities, what beach did yon ask for? A. Beach 
No. 1.

Q. Did you have a conversation with the per­
son selling the bathing privileges? A. Yes.

Q. What was the conversation that you had? 
A. The conversation wTas to the effect that in 
spite of the fact that I made application and tend­
ered my dollar and asked for Beach No. 1 they 
would not give it to me because I was colored and 
said that I would have to purchase a tag for 
Beach No. 3 only.

Q. You are a member of the negro race? A. 
I am.

Q. Did you have a conversation with Mr. Wood­
ing? A. I didn’t speak to Mr. Wooding.

Q. Were you present when a conversation was 
held with Reverend Jackson and Mrs. Bullock? 
A. Yes.

Q. During the course of this conversation where 
was your application and your dollar ? A. In my 
hand. I had offered it to the acting clerk, to the 
person taking the applications.

Q. What conversation did you hear between 
Mr. Wooding and the other members of your 
party? A. I heard Mr. Wooding say, after he 
came in, that he was very sorry that things had oc­
curred, but he was acting only on the authority 
and orders of the Mayor and that he could only 
do what he was told.

Q. Who was the first person to make that state­
ment? A. The two men at the desk.

Q. And after that were they asked who was 
their superior, and they said that it was the City 
Clerk? A. Yes.

Q. Who was the first who mentioned receiving 
orders from Mayor Evans? A. The person at the 
desk selling.



99

Q. Did any member of your party mention it? 
A. No.

Mr. Upperman: That is all.

Cross examination by Mr. Warwick:

Q. And now, the young man who was there 
when you first walked in, Mrs. Sample, was the 
first one who told you that he could not issue 
passes for Beach No. 1? A. Yes.

Q. During the conversation he stated that those 
were his instructions from his boss. A. Some­
thing like that.

Q. Was it boss or not? A. I don’t know. It 
was not boss. It was probably superior or some­
thing like superior.

Q. You heard Mrs. Bullock say you heard him 
use the word “ boss” ? A. It was to the same ef­
fect.

Q. Never mind the effect, I am asking for the 
conversation. Whom did he refer to as his su­
perior? A. Mr. Wooding.

Q. That was what he said? A. That is all I 
remember.

Q. He did not also mention the Mayor? A. 
No, he did not say the Mayor.

Q. And then later on, Mr. Wooding came in and 
there was a general group conversation with him? 
A. Yes.

Q. Everybody stood up? A. Yes.
Q. And Dr. Jackson entered into the conversa­

tion? A. I didn’t understand.
Q. Dr. Jackson entered into the conversation 

with Mr. Wooding? A. Yes.
Q. And Mrs. Bullock did also? A. Yes.
Q. You did? A. Yes.
Q. You say that the first man to mention any­

thing about Mayor Evans giving instructions was 
Mr. Wooding? A. Yes.

Jeanette Sample, for Prosecutrix—Cross

10

20

30

40



100

Q. You are sure that no one else made that 
statement ? A. Yes.

Q. You heard him saying that? A. Yes.
Q. As a matter of fact wasn’t that said by some 

one else, some one in your party? A. No.
Q. Didn’t he say that he was issuing these 

10 passes? A. No, he said definitely that he was 
acting on instructions ordered by Mayor Evans.

Q. Did you secure a beach privilege later on? 
A. No, I was not able to.

Q. You never applied for it again? A. No.
Q. Then you don’t know whether you were able 

to? A. I was told that day.
Q. You didn’t go back and try to get it after 

that? A. No.
Q. You did not exercise any bathing facilities 

20 during the summer? A. No, not at all.
Mr. Warwick: That is all.

Dr. Julius C. McKelvie, for Prosecutrix—Direct.

Dk. J u liu s  C. M cK elvie , called as a witness on 
behalf of the prosecutrix, being first duly sworn, 
testified as follows:

Direct examination by Mr. U pperman:
30 Q. Dr. McKelvie, where do you live? A. 55 

Rockwell Avenue, Long Branch.
Q. Did you live in the City of Long Branch dur­

ing July, 1938? A. Yes.
Q. You are acquainted with Mr. Wooding, the 

Clerk of the City of Long Branch? A. Yes.
Q. Have you at any time had occasion to dis­

cuss with Mr. Wooding the matter of selling bath­
ing facilities and privileges to members of the 

4 0  colored race in the City of Long Branch? A. Yes.



101

Q. When was it that you had this conversation ? 
A. On July 21st, I think it was.

Q. What was your conversation with him? A. 
I went in, on the advice of counsel, to secure copies 
of the amended ordinance, the old ordinance and 
one of the application cards.

Q. What was the conversation that you had?
Mr. Warwick: I object to any conversa­

tion had between the witness and the City 
Clerk on the ground that it is irrelevant, 
immaterial and not pertinent to the issue 
here involved in the validity of an ordi­
nance, that this proceeding is one instituted 
by Allie Bullock, prosecutrix, alleging that 
she was discriminated against on an appli­
cation filed on July 17th, and any conversa­
tion had on any other day by the witness 
is irrelevant to the issue.

A. He volunteered an apology for having had to 
refuse Miss Cecil Gardner on the former Satur­
day, and said that he had it on orders from the 
Mayor, and that the Mayor had told him that he 
was not to issue badges to colored people to any 
beach other than to Beach No. 3, and no white 
person was to be issued a badge to Beach No. 3.

Q. That was on the 21st day of July, 1938? A. 
That is right.

Q. That was some time after the beginning of 
the sale of the badges? A. Yes.

Q. Did you have any other conversations with 
Mr. Wooding? A. Yes.

Q. Give the number of occasions? A. There 
were so many times.

Q. Do you recall any of the dates? A. Not 
specifically.

Q. Can you approximately name the date? A. 
Any number of times. When we were appearing

Dr. Julius C. McKelvie, for Prosecutrix— Direct.

10

20

30

40



102

Certificate of Supreme Court Commissioner.

before the Commissioners and that was weekly 
for about five months.

Q. I am talking about between the fifteenth day 
of July and the seventeenth day of August? A. 
No, I can’t remember specifically any conversa­
tion.

10 Q. But you did have weekly conversations with 
him? A. I would not say with him, but I did 
speak to him on any number of occasions.

Mr. Upperman: That is all.

Cross examination by Mr. Warwick:

Q. You were not present, Doctor, when the 
prosecutrix, Mrs. Allie Bullock, made the applica­
tion, were you? A. No.

20 Q- So you do not know anything about the cir­
cumstances attached to that? A. No.

Mr. Warwick: That is all.

Certificate of Supreme Court Commissioner.

I h ereby  certify  that the foregoing testimony, 
consisting of eighty-eight typewritten pages, was 

3 0  taken before me, sitting as a Supreme Court Com­
missioner, at the time and place stated therein; 
that the testimony was taken stenographically by 
Myrtle E. Hoyt, a stenographer, selected by con­
sent of counsel, and duly sworn, which testimony 
was afterwards reduced to typewriting.

I f u r t h e r  certify  that according to the best of 
my knowledge and belief the foregoing is a true 
and correct transcript of the testimony given be­
fore me.

40 J u liu s  J . G o ld en ,
Supreme Court Commissioner.



£mu Jersey Supreme (Court

ALLIE BULLOCK,
Prosecutrix,

vs.

J. ARTHUK WOODING, Clerk of the City 
of Long Branch, New Jersey, and the 
CITY OF LONG BRANCH, County of 
Monmouth, New Jersey.

Defendants,

On
Certiorari.

BRIEF OF PROSECUTRIX.

WALTER J. UPPERMAN,
ROGER M. YANCEY,

A ttorneys fo r  P rosecu trix , A llie B ullock.

ROBERT S. HARTGROVE,
Of Counsel fo r  P rosecu trix .

Arthur W. Cross, Inc., Law Printers, 71-73 Clinton Street, Newark, N. J.





Nwu Ilprspg (tort

A llie  B u l l o c k ,
Prosecutrix,

vs.

J. A r t h u r  W ooding, Clerk of the 
City of Long Branch, New Jer­
sey, and the C it y  of L ong 
B r a n c h , County of Monmouth, 
New Jersey,

Defendants.

On Certiorari.

BRIEF OF PROSECUTRIX.

Facts.

Under the Amended Ordinance, passed by the 
Board of Commissioners of the City of Long 
Branch, New Jersey, on the seventh day of June, 
1938, the City of Long Branch attempted to regu­
late the use of the bathing beaches of the City of 
Long Branch by requiring “ all persons desiring 
to use the bathing facilities and access to said 
beaches”  to register with the City Clerk of the 
said city in his office at the City Hall, and upon 
paying the fee or charges, receive from him a 
badge, check “ or other insignia of distinctive 
design or color for the use of each of the respec­
tive beaches.”  The beach front of the City of 
Long Branch was divided into four segments 
known and designated as Beach No. 1, Beach No. 
2, Beach No. 3 and Beach No. 4. The fees charged 
to non-resident users of the bathing facilities and 
access to the beaches were higher than those 
charged to resident users. Exemption from all



2

charges was given to “ all persons residing in a 
charitable institution or institutions in the City 
of Long Branch”  when they entered upon that 
part of the bathing beaches described in the said 
Ordinance or in the waters adjacent thereto, as 
would be from time to time designated by the 
Director of the Department of Parks and Public 
Property of the City of Long Branch.

The declared purpose of the Ordinance was the 
avoiding of congestion on any of the beaches, a 
proper distribution of patrons and the better pro­
tection and safety of patrons on said beaches.

On July 17, 1938 the prosecutrix, a resident of 
Long Branch and a member of the colored race, 
applied to the City Clerk for a badge or permit 
for the use of the bathing facilities and access to 
one of the beaches, tending a license fee of $1 
as required by the said Ordinance.

The said City Clerk refused to issue to prose­
cutrix a badge or permit for any beach except 
Beach No. 3, to which said Beach all colored 
people had been exclusively assigned by the City 
Clerk. The purpose of the City Clerk was to seg­
regate the colored persons to Beach No. 3, as tes­
tified by him, and was at the instance of the City 
Commissioners of the City of Long Branch.

The Ordinance also provided that the regis­
trant or licensee should be entitled to the use of 
the beaches for a period of not less than 10 weeks, 
said periods beginning on or about June 15th and 
ending on or about October first of each year. It 
contained other features hereinafter adverted to. 
The Ordinance provides for a penalty for the 
violation of any of its provisions.

The purpose of these proceedings is to review 
the legality of the said Amended Ordinance and 
the acts of the City Clerk thereunder.



3

A R G U M E N T .

P O I N T  I .

An ordinance can be adjudged to be void 
before a conviction and before action to en­
force it has terminated in a judgment where 
it appears that it is void in toto.

See:
Siciliano v. Neptune Twp., 83 N. J. Law 

158, 83 Atl. 865;
Rosencranz v. Eatontown, 77 Atl. 88, 80 

F. J. Law 227;
State (Tomlin, Prosecutor) v. City of 

Cape May, et al., 63 N. J. Law 429, 44 
Atl. 209.

Prosecutrix is a resident of the City of Long 
Branch and has a personal interest which would 
be affected by the enforcement of the amended 
Ordinance sub judice.

See:
Tallon v. Mayor, Sc. of City of Hoboken, 

60 N. J. Law 212.

P O I N T  I I .

The amended ordinance is discriminatory 
and for the benefit of a class, because,

1. Subdivision 1 of Section 2 of the said 
Amended Ordinance sets forth that:

“ All persons desiring the use of the bath­
ing facilities and access to said beaches shall 
register in the City Clerk’s Office, City Hall 
and upon paying the fee or charge as herein­
after provided, shall receive from the City



4

Clerk a badge, check or other insignia which 
shall be worn by the registrant when required, 
or shall be shown at the request of any officer 
or employee of the City of Long Branch. All 
badges, checks or other insignia and all writ­
ten evidence of the right to use said beaches 
shall not be transferable.”

See: State of Case, p. 25, 11. 27-38.

In such form the said Amended Ordinance is 
both prohibitive and restrictive. It limits the right 
of use of the bathing facilities and access to pub­
lic beaches to all persons holding badges, checks 
or other insignia, while at the same time it pro­
hibits all other persons who might desire access 
to the beaches. Access to the public beaches is de­
pendent upon the desire to use the bathing facili­
ties. It does not discriminate between users of the 
bathing facilities and persons who merely desire 
to walk along the beaches or to sit upon the same. 
It is a notorious fact that bathing beaches have 
become public arteries for pedestrians. To pro­
hibit one to walk along the public beaches except 
upon the payment of a fee is unreasonable and in 
restraint of personal liberty. A condition is there­
by created for the benefit of a class of persons 
who, desiring to take advantage of the bathing 
facilities, gain the right of access to the beaches. 
Such a discrimination is without any substantial 
basis and without any benefit to the public at 
large. It is beyond the powers of the City of Long 
Branch.

As to these features the said Ordinance is un­
duly indefinite and vague and should be set aside.

See:
State (Tomlin, Prosecutor) v. City of 

Cape May, et al, supra.;
McConvill v. Mayor, dec. of Jersey City, 

39 N. J. Law 38.



5

“ All persons residing in a charitable in­
stitution or institutions in the City of Long 
Branch shall be entitled to enter upon that 
part of the bathing beaches in this ordinance 
described or in the waters adjacent thereto, as 
shall be from time to time designated by the 
Director of the Department of Parks and 
Public Property of the City of Long Branch 
for that purpose without charge.”

See: State of Case, p. 27,11. 14-22.

The most precursory reading of this Section of 
the Ordinance, and in comparison with Subdivi­
sion 1, Section 2, of the same, will lead to the con­
clusion that a privileged class is definitely estab­
lished. The language of Section 4 is sufficiently 
comprehensive to include all institutions, both 
public and private, IN the City of Long Branch; 
but it does not confine itself to charitable institu­
tions or institutions OF the City of Long Branch. 
Such institutions might belong to the county, or 
even to the State of New Jersey or to private en­
terprises. Persons residing therein might be the 
superintendant, maintenance men or any other 
character of employees, as well as inmates. People 
residing in such institutions, perforce the location 
of the same, reside in Long Branch. They are 
exempt from charges. Nevertheless all other per­
sons residing in private dwellings in Long Branch 
are forced to pay fees. The distinction thus made 
between residents within the city limits for no 
other reason than places of dwelling therein, is 
without legal justification and is class distinction. 
The condition thus created by the Amended Ordi­
nance sub judice sets one group of residents 
within the city limits of Long Branch over against 
another group, in spite of the fact that all fees 
and income from the operation of the said beaches

2. Section 4 of the said Amended Ordinance
sets forth that:



6

become the property of the City of Long Branch 
and are paid into the budget thereof for the main­
tenance and operation of the said beaches. No 
reason can be advanced as to why residents of 
private institutional enterprises should be vested 
with public privileges not possessed by other res­
ident members of the public, and at their expense.

See: State of Case, p. 27, 11. 38-40; p. 28, 
11. 1-18.

This is class legislation and in its worst form.
See:

Patterson v. Bd. of Education of the City 
of Trenton, 164 Atl. 892 (Aff. 112 N. J. 
Law 99);

Kohr Bros. v. Atlantic City, 104 N. J. 
Law 468;

City of Burlington v. P. B. R. Co., 104 
N. J. Law 649;

Central R. R. Co. v. State Bd. of Asses­
sors, 75 N. J. Law 771;

Quigley v. Lehigh Valley R. R. Co., 80 
N. J. Law 486;

Doherty v. Spitsnagle, 104 N. J. Law 38.

P O I N T  I I I .

The legislature of the State of New Jersey 
has not vested the City of Long Branch with 
the right to enact the amended ordinance sub 
judice, because,

1. Whatever police power the municipality 
has, is derived from the sovereign state. It is not 
inherent. This is elementary.

See:
Lynch v. City of Long Branch, 111 N. J.

Law 148.



7

No inference can be gathered from the general 
welfare clause of the Home Rule Act vesting mu­
nicipalities with this kind of authority. The Act 
gives municipalities the power,

“ to make, enforce, amend, and repeal such 
other ordinances, regulations, rules, and by­
laws not contrary to the laws of this state or 
of the United States as they may deem neces­
sary and proper for the good government, 
order, protection of persons and property, 
and for the preservation of the public health, 
safety and prosperity of the municipality and 
its inhabitants as may be necessary to carry 
into effect the powers and duties conferred 
and imposed by this Act or by any law of this 
state.”

See:
Home Rule Act, P. L. 1917, Ch. 152, Art.

14, Sec. 2.—Rev. St. of 1937, 40:48-2.

This legislation is not specific enough to em­
brace the right of prohibition of access to the 
beaches or to the waters of the Atlantic Ocean. 
By an amendment to the Home Rule Act the Leg­
islature of New Jersey declared that:

“ The governing body of every municipal­
ity shall have power to make, publish, en­
force, amend or repeal ordinances for the fol­
lowing purposes: * * * (j) To regulate
or prohibit swimming or bathing in the 
waters of, in or bounding the municipality, 
* * * ( d d ) T o  establish, maintain, regu­
late and control a lifeguard upon any beach 
within or bordering on the municipality.”

See:
Home Rule Act as amended, P. L. 1932, 

Ch. 87, Art. 14, subd. (j) and (dd), 
Rev. St. 1937, 40:48-1 (9), (27).



8

It can not be inferred that it was the intent of 
the Legislature by the enactments aforesaid to 
vest a municipality with the right or the power to 
foreclose the public from any beaches within or 
bordering on the City of Long Branch. This is 
exactly what the Amended Ordinance sub judice 
attempts to do when it couples access to the 
beaches with the use of bathing facilities.

2. The waters of the Atlantic Ocean are an 
avenue of commerce between states and nations. 
Nothing said in the Home Rule Act as to the sec­
tions referred to, places jurisdiction over these 
waters in the municipality.

It has been held that,
“ As the seas are the joint property of na­

tions, whose rights and privileges relative 
thereto are regulated by the laws of the na­
tion and treaties, such cases necessarily be­
long to the admiralty jurisdiction.”

See:
Chisholm, v. Georgia, 2 Dali (H. S.) 419;
Public Welfare Picture Corp. et al v.

Brennan, 134 Atl. 866, 100 N. J. Eq.
367.

“ In the absence, however, of an expressed 
delegation or of a necessary conferment, re­
sulting from some inherent or given ex­
pressed power, the municipality cannot law­
fully act.”

See:
27 Cyc. 69, (Quoted in Public Welfare 
Picture Corp. v. Brennan, supra).

3. Residents as well as citizens of Long Branch 
are restricted to bathing facilities and access to 
the beach for a period of ten weeks of each year. 
During the remaining 42 weeks of each year no



9

person can have access to the beaches or use of 
bathing- facilities. The Director of the Depart­
ment of Parks and Public Property can so regu­
late the ten weeks ending on October first of each 
year as to prevent any one from entering upon 
the beaches or using the bathing facilities at any 
time prior to July 15th of each year. The Ordi­
nance, therefore, is more than regulatory. It is 
prohibitive during 42 weeks of each year and not 
for public welfare or the safety, protection and 
morals of the people.

See: State of Case, p. 36, 11. 10-19.
A lso:

II. Krumgold d  Sons, Inc. of Jersey City, 
130 Atl. 635, 102 N. J. Law 170;

McGonnell v. Bd. of Commissioners of 
the City of Orange, 121 Atl. 135, 98 
N. J. Law 642;

Dorrison v. Saul, 118 Atl. 691, 98 N. J. 
Law 112.

4. The maintenance of the public beaches from 
which the tax-payers and residents of Long 
Branch are excluded for 42 weeks of each year, 
and qualifiedly admitted for ten weeks of each 
year, is paid for by the tax-payers, since the 4th 
Section of the said Ordinance declares that:

“ All expenses and costs to the City of Long 
Branch in carrying out the terms of this Or­
dinance shall be paid from the appropriations 
made in the budget of the City of Long 
Branch, for the current year for this pur­
pose.”

See: State of Case, p. 27, 11. 38-40; p. 28, 
11. 1-3.

The above-quoted section of the Amended Ordi­
nance sub judice means, if anything, that the tax­



10

payers of the City of Long Branch bearing the 
burden of government by taxation, must submit to 
a diversion of public funds for the benefit of a 
privileged class of people, to wit, the residents 
of charitable institutions and institutions in the 
City of Long Branch. This diversion of public 
funds is not in fulfillment or advancement of civil 
rights under government, but in limitation and 
suppression thereof. Public property is thereby 
converted into private ownership by the City 
Commisioners of the City of Long Branch. A 
definite group of residents and tax-payers of the 
City of Long Branch is thus denied the liberty 
of public beaches, without rational or legal basis, 
or upon equality with other residents of the said 
City of Long Branch. Such a diversion of public 
funds amounts. to a payment by tax-payers, resi­
dents and citizens of the said City of Long Branch 
for the maintenance of public oppression by legis­
lation and is tyranny under government.

P O I N T  I V .

The amended ordinance suh judice is in­
valid as an unreasonable exercise of police 
power, because,

1. Section 2 of the Amended Ordinance con­
cedes that the beaches are public. This Section 
also delares that the said Ordinance is for the 
government, use and operation of the said beaches. 
If the City of Long Branch possesses jurisdiction 
over the beaches and waters of the Atlantic Ocean 
adjacent thereto, it will be conceded that it is 
vested with power reasonably to regulate the 
same. But no one would say that this power gives 
them the right to deny the “ use”  of the beaches 
to the people of the public. Just what the Ordi­



11

nance means by “ use”  of the public beaches no 
one can say, since the Ordinance itself is silent 
as to this feature. Manifestly, it can not be a 
reasonable regulation to prevent a person from 
walking upon the beaches, entering- upon the same, 
or doing any other lawful act upon the beaches, 
when the doing of the same would in nowise tend 
to a breach of the public peace or jeopardize the 
safety or the welfare of the community. Such a 
power is not derived by the City of Long Branch 
from any source. In the form in which the Ordi­
nance has been enacted, a citizen even in the 
face of an emergency could not go upon the beach 
to render aid except he had in his possession a 
check or badge or other insignia evidencing his 
right “ to use the said beaches” .

An ordinance, to be sustained as an exercise of 
police power, must have for its object the pre­
vention of some offense or manifest evil or the 
preservation of public health, safety, morals or 
public welfare.

See:
Erie B. R. Co. v. Mayor & Aldermen of 

Jersey City, 84 Atl. 697—83 N. J. Law, 
92;

Cily of Passaic v. Paterson Bill Posting 
(&c. Co., 62 Atl. 267, 72 N. J. Law, 285;

Read v. City of Camden, 24 Atl. 549, 54 
N. J. Law, 347.

State of Case, p. 25, 11. 21-25.

Whether the said Ordinance is unreasonable or 
the reverse is a practical question. It does not 
depend upon abstract considerations ^WrigEWoF” 
wrong. But where the ordinance is subject to such 
imputation, the court will not hesitate to pro­
nounce it a nullity.



12

See:
Penn. R. R. Co. v. Mayor & Aldermen of 

Jersey City, 47 N. J. Law, 286;
Kobr Bros. v. Atlantic City, supra.

2. The Ordinance sub judice is oppressive and 
provocative of public evils.

Subdivision 1 of Section 2 of the said Ordinance 
declares, that,

“ All persons desiring the use of the bath­
ing facilities and access to said beaches shall 
register in the City Clerk’s Office, City Hall, 
and upon paying the fee or charge as here­
inafter provided, shall receive from the City 
Clerk a badge, check or other insignia which 
shall be worn by the registrant when re­
quired, or shall be shown at the request of 
any officer or employee of the City of Long 
Branch.”

See: State of Case, p. 25, 11. 29-38.

The Ordinance in vesting this power for exhi­
bition upon request, does not confine it to any 
particular officer or employee of the City of Long 
Branch. Such officer might be the Chief of Police 
or any guard then confined to the beach. It might 
be also the City Clerk or any minor employee in 
the City Hall or any other public building of the 
City of Long Branch. It will also embrace stenog­
raphers or drivers of the City’s ash trucks, or 
such like employees of the said city.

If the Ordinance is for regulation certainly the 
City of Long Branch did not intend that such per­
sons as aforementioned, and without limitation 
or restraint, can exercise the power as aforesaid. 
Such powers will lead to officious intermeddling. 
The Ordinance is silent as to the circumstances 
under which the request for exhibition is to be 
made. The fact that the Ordinance declares that 
the check, badge or other insignia shall be worn



13

by the registrant when required”  is not sufficient. 
By whom shall the request for wearing be made? 
Under the frame of the Ordinance any registrant 
is at the mercy of any officer or city employee 
who, without evidencing his connections with the 
city government, and without reason, method or 
limitation, is empowered to demand an exhibition 
at any time and under all circumstances. Private 
rights are thus invaded. The attendant evils upon 
such an exercise of powers are obvious. Any un­
due invasion of the private rights is an undue 
exercise of legislative powers by the city. The 
vesting of all city employees with the powers 
aforesaid must bear some substantial relation to 
the public welfare sought to be conserved.

So zealous have the legislators and our courts 
been in their diligence to safeguard the private 
rights of citizens that it has been held that a city 
can not pass an ordinance which conflicts directly 
or indirectly with state laws.

See:
Atlantic City R. R. Co. v. City of Pleas- 

antville, 124 Atl. 357, 99 N. J. L. 328;
Penn. R. R. Co. v. Mayor <& Aldermen of 

Jersey City, supra;
Singer v. First Criminal Court of the 

City of Newark, 75 Atl. 433, 79 N. J. 
Law, 386;

Jersey Supply Co. v. Mayor & Aldermen 
of Jersey City, 60 Atl. 381, 71 N. J. 
Law, 631;

Hudson <& Manhattan R. R. Co. v. Mayor 
of the City of Hoboken, 66 Atl. 60. (Not 
officially reported.)

“ When the state or any agency thereof 
seeks by restraint to abridge the exercise of 
private rights under guise of police power 
the restriction must bear some definite or



14

substantial relation to the public safety and 
this is especially true where the legislature 
has prescribed the rights and privileges of 
an individual or of a company. The City 
government can not qualify or abridge the 
force of legislation. As against such a grant 
of right or franchise beyond reasonable regu­
lation the city is powerless to act.”

See:
Hudson £  Manhattan R. R. Co. v. Mayor 

of the City of Hoboken, supra;
43 C. J. tit.: “ Municipalities” , p. 210;
State (Nicoeli, Prosecutor) v. Lowery, 

49 N. J. Law 391.

The exertion of police powers by a munici­
pality is to conserve the comfort, welfare and 
peace of the public and not in satisfaction or ad­
justment of private differences or private wrongs.

See:
Bregguglia v. Lord Mayor, 53 N. J. L. 

168. “
“ Yet the exercise of the power must bear 

a substantial relation to the public welfare, 
so defined, and in all respects a reasonable 
measure for the attainment of the relief 
sought.”

See:
Mansfield & Swett Inc. v. Town of W. 

Orange, et al., 120 N. J. Law 145;
State v. Gaynor, 119 N. J. Law 582.

The means to be employed for the accomplish­
ments of the objectives of the said Amended Ordi­
nance are neither reasonable nor appropriate.



15

P O I N T  V .

The amended ordinance sub judice is by in­
tent, purpose and operation legislation for race 
segregation, because,

1. The intent and purpose of the Ordinance 
as set forth in Subdivision 2 of Section 2 thereof 
is superficial and covert. It declares:

“ For the purpose of avoiding congestion 
on any of said beaches, and for a better dis­
tribution of patrons, and for the better pro­
tection and safety of patrons on said beaches, 
the City Clerk is authorized and directed to 
issue badges, checks or other insignia of dis­
tinctive design or color for the use of each of 
the respective beaches.”

See: State of Case, p. 25, 11. 38-40; p. 26,
11. 1- 10.

Manifestly the distinctive color or design of the 
badges, checks or other insignia will not of them­
selves avoid congestion on any of the said beaches 
or aid in proper distribution of patrons. Neither 
will they give better protection and safety to pa­
trons on said beaches. There is nothing mystical 
in color schemes, and in our institutional life 
under democratic government our courts have 
not as yet recognized spectrum of colors as social 
agents for public welfare. The use of different 
colors was designed for manipulation. The said 
Ordinance does not define what constitutes con­
gestion. The sizes of the beaches are not stated. 
Neither does the said Ordinance determine the 
meaning of a proper distribution of patrons or 
what would constitute their better protection and 
safety. If it is that congestion wall cause an unsafe 
condition of patrons, manifestly these patrons, as 
human beings, would of their own volition spread



16

out to less densely populated parts of the beach. 
It is obvious that legislation is not necessary for 
this purpose. Experience has demonstrated that 
the needed protection for patrons using the bath­
ing facilities is from the waters of the ocean. Life­
guards afford this.

2. The intent and purpose of the said Ordi­
nance is, however, made manifest by the testi­
mony of the City Clerk of Long Branch. His tes­
timony can not be gainsaid.

The said City Clerk testifies that the sale of 
badges was refused to colored people for Beaches 
Nos. 1, 2 and 4, urging as a specious reason, the 
prevention of “ serious trouble” ; that it was to 
prevent congestion; that it was for distribution 
of patrons upon the beaches; that it was to pro­
cure segregation and separation of the races the 
interminglement of which, as he declared, would 
cause trouble, while at the same time admitting 
that no trouble had resulted from the mixing of 
the races on Beaches Nos. 1, 2 and 4. The City 
Clerk also frankly testified that as the result of 
conferences with Alton B. Evans, the Mayor of 
the City of Long Branch, Frank A. Brazo, Com­
missioner of Public Safety, Paul Nastasia, the 
Commissioner of Streets, Frederick Wardell, the 
Chief of Police of the City of Long Branch, and 
other persons, the purpose was to make Beach 
No. 3 exclusively one for colored people which 
was set up “ with thought in mind that colored 
people would use it.”

See: State of Case, pp. 55, 56, 57, 58, 59, 
60 and 61.

It will be observed that Messrs. Evans, Sher­
man and Brazo were the framers of the Ordinance.

See: State of Case, p. 45.



17

A more definite purpose for racial segregation 
can hardly be conceived of. The Ordinance is not 
operating generally and alike upon all persons in 
the same class and becomes thereby special or 
private in character, and to satisfy the whims 
and desires of a particular class.

“ The primary object of a municipal regu­
lation is public in character and not private. 
The police power may not be exercised for 
private purposes nor for the exclusive bene­
fit of particular individuals or classes.”

See:
43 C. J. tit.: ‘ ‘ Municipalities, ’ ’ p. 2228.

The separation of the racial groups was for 
aesthetic considerations which are matters of 
luxury and indulgence rather than necessity. It 
is only necessity which justifies the exercise of 
police power to invade private rights and prop­
erty rights and for the public welfare.

See:
City of Passaic v. Paterson Bill Posting 

Advertising and Sign Painting Co., 72 
N. J. Law 285, 62 Atl. 267.

No such derivative rights as claimed by the 
City of Long Branch can be read into the Home 
Rule Act and the amendments thereof.

The Legislature of the State of New Jersey 
could not legally vest the City of Long Branch 
with such a right.

See:
Public Welfare Picture Corp. et al. v. 

Brennan> supra.

“ The Legislature indubitably has power to 
vest a large measure of discretionary au­
thority in an agency created with the admin­
istration of a law, enacted in pursuance of 
the police power to secure the health and 
safety of the people. This authority is one of 
common exercise.”



18

But it is necessary that the statute establish a 
sufficient basic standard—a definite and certain 
policy and rule of action for the guidance of the 
agency created to administer the law.

See:
State v. Newark Milk Co., 179 Atl. at p. 

125, 118 N. J. Eq. 54.

The acts of the City Commissioners of Long 
Branch as well as the City Clerk thereof evince a 
palpable misconception of the law. The standard 
is not the advantage or dislikes of particular per­
sons desiring to bathe in the Atlantic Ocean, but 
rather the effect upon the entire community of the 
City of Long Branch as a social, economic and 
political unit. That which makes for the exclusive 
and preferential benefit of a particular group of 
persons desiring to use the bathing facilities of 
the City of Long Branch, with no relief to the 
community as a whole, is not a valid exercise 
of police power. Such authority may not be ex­
erted to bar the ordinary use of the beaches be­
cause repugnant to the sentiments or desires of 
a particular class.

“ It may be interposed only in the event 
that the use is detrimental to the interests of 
the public at large. ’ ’

See:
Mansfield d  Swett v. Town of West Or­

ange, 198 Atl. 225,120 N. J. Law 145.

In relegating all colored persons to Beach No. 
3, the absence of a legislative standard would be 
provocative of the very evils which the said Ordi­
nance, upon its face, seeks to avoid, to wit, con­
gestion, a proper distribution of patrons and the 
better protection and safety of patrons on said 
beaches.



19

3. The design and purpose of the said Ordi­
nance are clearly against the policy of the State 
of New Jersey as expressed in its legislative en­
actments and decrees and decisions of its courts.

“ All persons within the jurisdiction of the 
State of New Jersey shall be entitled to the 
full and equal accommodations, advantages, 
facilities and privileges of any places of pub­
lic accommodations, resort or amusement, sub­
ject only to the conditions and limitations es­
tablished by law and applicable alike to all 
persons. * * # A place of public accom­
modation, resort or amusement within the 
meaning of this Act shall be deemed to in­
clude inn, tavern, road house * * * pub-
lie bath house, public boardwalk, public sea­
shore accommodation, &c. ”

See:
Civil Rights Act, P. L. 1921, Ch. 174, p. 

469, Rev. St. 1937,10:1-2,5;
Patterson v. Pd. of Education of the City 

of Trenton, supra.

P O I N T  V I .

The ordinance sub judice is invalid as a tax 
measure, because,

1. Access to the public beaches and use of the 
bathing facilities by the public are recreational 
ventures and not a trade or business. The Home 
Rule Act vests the City of Long Branch with no 
power to tax recreations. The statutory enact­
ment sets forth:

“ (c) Automobile garages, dealers in sec­
ond-hand motor vehicles and parts thereof, 
bathhouses, swimming pools, restaurants, 
hotels, boarding houses, lodging houses, or 
other places used for sleeping or lodging pur­
poses, and the keepers thereof;



20

(d) Lumber and coal yards, stores for the 
sale of meats, groceries and provisions, dry 
goods and merchandise, and goods and chat­
tels of every kind, and all other kinds of busi­
ness conducted in such city other than those 
herein mentioned, the place or places of busi­
ness or premises in which or at which the 
different kinds of business or occupations 
are to be carried on or conducted; travel­
ing or other shows, circuses, plays, dances, 
exhibitions, concerts, theatrical perform­
ances, and all street parades in connec­
tion therewith; and also theatres, show 
houses, opera houses, concert halls, dance 
halls, pool or billiard parlors, exhibition 
grounds, and all other places of public amuse­
ment ; ’ ’

See:
P. L. 1929, Ch. 215, Sec. 1, subd. (c) and 

(d), Kev. St. 1937, 40:52-1 (d) ( e ) ;
Lynch v. City of Long Branch, 167 Atl. 

664, 111 N. J. Law 148.

2. As to fees exacted from patrons the Ordi­
nance is inequitable and unjust in that it makes 
an unwarranted and arbitrary differentiation be­
tween citizens possessed of equal rights under 
the law, and engaged in the same recreational 
venture.

(a) The Ordinance provides that all persons 
residing in charitable institutions or institutions 
in the City of Long Branch shall be tax exempt.

See: State of Case, p. 27, 11. 13-23.

This exemption is arbitrary and unreasonable 
and gives an advantage to one resident of the 
City of Long Branch not possessed by another 
resident living outside of such institutions.

(b) The Ordinance provides that a bona fide 
resident of the City of Long Branch is assessed



21

$1 per season and a non-resident $3 per season 
for access to the beaches and bathing facilities. 
Assuming this to be a reasonable fee for one re­
siding in the City of Long Branch, upon what 
principle can a charge of $3 be made against one 
who does not reside therein and who might reside 
one or two city blocks outside of the city limits of 
Long Branch? What circumstances incident to 
the one can subject the public officials to greater 
burden or trouble in considering and granting 
license, than those belonging to the other ? A non­
resident might be a tax-payer owning real estate 
located in Long Branch. He might even be a 
citizen of Long Branch.

See:
Muhlenbrinck v. Commissioners, 42 N*. J. 

Law 365;
Borough of Haddon Heights v. Hunt, 90 

N. J. Law 35. (Aff. 91 N. J. Law 696.)

It has been held in respect to businesses and 
trades that:

“ The control it (municipality) may exer­
cise over business and trade, is such only as 
belongs to the necessities and demands of 
local government, such as have relation to the 
general prosperity of the citizen, the public 
health, order and morals of the community. 
It can not, enter into the arena of business 
competition, to advance a favored class and 
retard others. All citizens in the pursuit of 
a legitimate, honest business, stand equal be­
fore the law, and a police power intrusted to 
a corporation is unreasonably exercised in 
making invidious distinctions between citi­
zens endowed with equal rights.”

See:
Muhlenbrinck v. Commissioners, supra.



22

If this is the law in respect to business and oc­
cupation it should apply with peculiar force to 
recreations upon public beaches.

See also:
Kipp v. City of Paterson, 26 N. J. L., 

298;
State (Thurow Medical Co., Prosecutor) 

v. Commisioners, <&c. of the City of 
Salem, 67 N. J. L., I l l ,  50 Atl. 475.

3. The said Amended Ordinance is a revenue 
measure. It sets forth that:

“ All fees and income from the operation of 
said beaches shall be collected by the City 
Clerk and transmitted to the Treasurer of 
the City of Long Branch to become the prop­
erty of the City of Long Branch” .

See: State of Case, p. 28, 11. 3-10.

But license fees can not be imposed for rev­
enue in the absence of statutory authority.

See:
North Hudson, R. R. Co. v. Hoboken, 41 

N. J. Law, 41.

The exaction of license fees by the City of Long 
Branch is an exercise of municipal authority.

See:
28 C. J. 624 (Quoted in Public Welfare 

Picture Corp. v. Brennan, supra).

P O I N T  V I I .

The ordinance sub judice is an illegal dele­
gation of authority by the City Commissioners 
of the City of Long Branch to the City Clerk 
thereof, because,

1. The determination of “ congestion on any of 
the said beaches ’ ’ is left entirely to the City Clerk.



23

The Ordinance is silent as to the significance of 
“ congestion” . It gives no guide-post, rules, 
methods or standards to be used by the City Clerk 
in making his determination. The Ordinance it­
self should set forth the governing principle, 
policy and their effectuation. This is necessary in 
all regulatory ordinances. It should establish a 
standard and not permit the City Clerk to ex­
ercise legislative functions. Such powers are not 
within the competency of the framers of the Ordi­
nance or the Legislature.

See:
43 C. J. tit.: “ Municipalities” , p. 250;
State v. Newark Milk Co., supra;
Mansfield & Swett v. Town of W. Orange, 

supra.

When the City Clerk passes on what consti­
tutes “ congestion”  his acts are not ministerial. 
They transcend administration. He passes on 
“ congestion”  in accordance with his own views or 
discretion and without limitations imposed by the 
said Ordinance.

See:
43 C. J. tit.: ‘ ‘ Municipalities ’ ’, p. 241;
Chicago v. Mattheis, 320 111., 352.

In the case of Chicago v. Mattheis, supra, the 
ordinance was declared void because of its fail­
ure to define “ rooming house” , the ordinance 
leaving it to the discretion of the administrative 
office to do this. The power of the City Clerk to 
say that one of the beaches is congested is the 
power to say that any or all of the beaches are 
congested. It is the power to say who shall have 
access to the beaches and who shall bathe in the 
ocean comprised within the city limits of the City 
of Long Branch. It is the power of exclusion. The 
rights of every resident of Long Branch and of



24

New Jersey are dependent npon the discretion of 
the City Clerk when he passes npon the undefined 
word “ congestion” . No limit is placed upon his 
actions and no appeal is given.

What is true as to “ congestion”  is also true 
as to “ a proper distribution of patrons” , and 
“ the better protection and safety of patrons on 
said beaches” .

“ This is a general maxim applicable with 
peculiar force to any form of sovereign power 
and operates to prevent the governing body 
of a municipal corporation, intrusted by the 
state with police power, from delegating its 
high functions to any body or officer, even to 
the mayor or other member of the body; the 
trust is official and personal and may be dis­
charged only by those to whom the state com­
mits it” .

See:
28 Cyc. 698 (Quoted in Public Welfare 

Picture Cory. v. Brennan, supra).

If the Legislature of New Jersey had clothed 
the City of Long Branch with the right to impose 
license fees for the use of the bathing facilities 
and access to the beaches, and if the license fees 
are a tax for revenue, certainly the City Commis­
sioners of the City of Long Branch can not dele­
gate the power and right to the City Clerk thereof 
to determine what revenues shall come into the 
treasury of the City of Long Branch by exercis­
ing his powers of determining congestion, proper 
distribution and protection and safety of the pa­
trons on the beaches, and without established 
standards under the said Ordinance. In such a 
situation, we would have, not municipal govern­
ment under laws, but under the unlimited and ar­
bitrary discretion of subordinate employees of the 
municipality. The taxing powers of the munici­
pality are, if any place, in the city government.



25

P O I N T  V I I I .

The amended ordinance is indefinite, un­
certain and misleading, because,

1. It leaves undefined and undetermined “ con­
gestion” , “ proper distribution of patrons”  and 
“ better protection and safety of patrons on the 
beaches” .

2. Under Subdivision 3 of Section 2 it is pro­
vided that the registrant shall have the use of 
the beach and bathing facilities * * * “ for a 
period of not less than 10 weeks beginning not 
before June 15th and ending not later than Oc­
tober 1st, of each year, as the period for use shall 
be from time to time determined by the Director 
of the Department of Parks and Public Prop­
erty” .

See: State of Case, p. 26, 11. 10-20.

The right of a private citizen, residents and 
non-residents of the City of Long Branch, to 
bathe in the waters of the Atlantic Ocean within 
the territorial limits of the City of Long Branch 
is confined by the Director of the Department of 
Parks and Public Property and the City Commis­
sioners of the City of Long Branch to a period of 
about 10 weeks of each year. It is possible under 
the said Ordinance for the Commissioners to so 
juggle the time within the two given periods as 
to exclude bathing on July 4th of each year or to 
exclude bathing on Labor Day of each year, ir­
respective of the weather conditions or the wel­
fare and good of the community. What will hap­
pen to anybody entering upon the beaches within 
the city limits of Long Branch outside of the 
10 weeks’ period, is primarily a guess. Certainly



26

an infliction of a penalty under the said Ordi­
nance was not intended for such an act. If the 
City Commissioners by ordinance have the power 
to fix the period of bathing, that period of time 
should be definite and certain and not left to the 
mere discretion of any member of the Board of 
Commissioners, in order that the right of all per­
sons might be properly determined, and neither 
private rights destroyed nor public rights in­
vaded.

3. Section 4 of the said Ordinance provides 
that:

“ The City of Long Branch shall comply 
with all the laws regarding the safety of 
bathers and shall provide all such safety de­
vices for bathers as are required by the Laws 
of New Jersey and particularly shall keep 
and observe all the provisions of Chapter 174 
of the Acts of the Legislature of the State of 
New Jersey for the year 1900, and upon fail­
ure to do so the Director of the Department 
of Parks and Public Property may close said 
beaches or any part thereof and the Director 
of the Department of Parks and Public Prop­
erty may at any time and at all times close 
said beaches and forbid bathing thereon be­
cause of storm or conditions of the beaches or 
ocean which may be deemed dangerous for 
bathers.”

It is difficult to determine just what, if any­
thing, this section of the said Ordinance means. 
The right of the City Commissioners or the power 
of the Director of the Department of Parks and 
Public Property at all times to “ close said beaches 
and forbid bathing thereon because of storms or 
conditions of the beaches or ocean which might be 
deemed dangerous for bathers, ’ ’ is consonant with 
the powers vested in municipalities under the 
Home Rule Act, to legislate for the general welfare 
of the public. The City of Long Branch functions



27

through its duly elected officers. But if the resi­
dents of Long Branch or of the State of New Jer­
sey are to suffer the consequences of closed 
beaches because of the derelictions of the City 
Government of Long Branch and thus be pre­
vented from exercising their private and personal 
rights, the only conclusion to be drawn is that 
innocent parties will be thus deprived of their 
constitutional rights because of the misfeasance 
or malfeasance in office of the City Commis­
sioners.

This section of the said Ordinance refers to the 
provisions of Chapter 174, the Acts of the Legis­
lature of the State of New Jersey for the year 
1900. What these provisions are the Ordinance 
does not set forth but simply makes a reference 
to the legislative enactment of the State of New 
Jersey by reference to the year and chapter. The 
City Clerk confessed his ignorance of the provi­
sions of these laws.

See: State of Case, p. 73, 11. 1-10.

We are now guided by Revised Statutes of 1937.
What reason in law can be advanced that the 

non-observance of the Laws of the State of New 
Jersey by the City Commissioners should vest one 
of their members with the power to deprive inno­
cent citizens and tax-payers of the right of access 
to the beaches or the use of bathing facilities! 
Manifestly the Ordinance is unreasonable, op­
pressive, unjust and uncertain in its significance, 
and is without warrant by law.

If the Director of the Department of Parks and 
Public Property should determine that the 
beaches should be closed because of the derelic­
tions of the governing officers of the City of Long- 
Branch, he thereupon sits in a judicial capacity 
upon the acts of the said City Comftrissioners, of 
whom he is one. Manifestly the Ordinance can



not delegate such a power to one of the Commis­
sioners which in practice would strip the City- 
Commissioners, acting in concert, of the very 
powers which the Ordinance intended to vest in 
them.

The above-mentioned section of the said Ordi­
nance sets forth that all matters relating to the 
use and administration of the said beaches are 
hereby committed to the Director of the Depart­
ment of Parks and Public Property “ subject, 
however, to the provisions of this Ordinance, and 
such rules and regulations as may hereafter be 
duly adopted by the Board of Commissioners of 
the City of Long Branch.”

See: State of Case, p. 28, 11. 10-18.

Clearly there would be a conflict of authority 
not only between the Director of the Department 
of Parks and Public Property and his fellow Com­
missioners, but also between the City Clerk issu­
ing the badges and the Director of the Depart­
ment of Parks and Public Property. Just where 
the final authority would rest as to the enforce­
ment of the Ordinance or any rules and regula­
tions governing the use and administration of the 
said beaches, no one can, in reason, determine. 
A  more patent legal incongruity could hardly be 
asked. Both upon its face and in operation the 
Ordinance is unreasonable and indefinite.

See:
North Jersey Street & Ry. Jersey

City, 75 N. J. Law, 349;
Falco v. Atlantic City, 99 N. J. Law, 119.

Either one of these grounds would be sufficient 
to have the Ordinance set aside.



29

The municipality does not possess the right and 
the Legislature can not confer upon a munici­
pality any power, the exercise of which will de­
prive one of the rights guaranteed him by the 
Constitution.

See:
H. Krumgold & Sons, Inc. v. Mayor $  

Aldermen of Jersey City, supra.

P O I N T  I X .

The amended ordinance sub judice is un­
constitutional, because,

1. It fails to set forth any standard by which 
the City Clerk, or the Commissioner of the De­
partment of Parks and Public Property, is to act.

See:
Mansfield & Swett v. Town of W. Orange, 

supra.

2. It provides no means of redress to persons
denied access to the beaches and the use of bath­
ing facilities by reason of the determination of 
“ congestion on any of the said beaches, * * # 
a proper distribution of patrons, * * #
and the better protection and safety of patrons 
on said beaches” , by the City Clerk of Long 
Branch, whereby the privileges or immunities of 
citizens of the United States might be safe­
guarded and their liberties protected under due 
process of law.

See:
Constitution of the United States, 

Amend. 14;
Constitution of New Jersey, Art. 1, 

Par. 1.



30

“ For, if the constitutional provision ‘ due 
process of law’, or, as it is sometimes called, 
‘ the law of the land’, or, as the English phrase 
it, ‘ the rule of law’, means anything, it should 
mean equality in the determination of the 
rights of those affected. Out of this premise 
it follows that no man is above the law; that 
every man, irrespective of station in life or 
position presently occupied, is subject along 
with all others to the same laws and the same 
considerations of our courts” .

See:
GrobJiolz v. Murdel Mtge. Inv. Co., 115 

N. J. Eq. 411.

Manifestly, if the right of colored persons to 
have access to Beaches Nos. 1, 2 and 4, under the 
guise of legislative regulation, is to be determined 
in terms of racial connections, then the exposition 
of the law by the Court of Errors and Appeals in 
the case of Grobholz v. Murdel Mortgage and In­
vestment Co., supra, as to “ equality in the de­
termination of the rights of those affected,”  and 
as to “ every man, irrespective of station in life 
or position presently occupied”  being “ subject 
along with all others to the same laws and the 
same considerations of our courts” , is peculiarly 
applicable to the case sub judice.

Segregation of the colored race under the guise 
of regulatory legislation for the public welfare, 
but at the expense of our democratic form of gov­
ernment, is the single and controlling aim and 
purpose of the Amended Ordinance sub judice; 
enacted without regard for the fundamental laws 
and the established policies of our state.



31

Conclusion.

For the reasons above set forth the said Ordi­
nance should be declared illegal and set aside.

Respectfully submitted,

W alter  J. U p p e r m a n , 
R oger M. Y a n c e y , 

Attorneys for Prosecutrix, 
Allie Bullock.

R obert S. H artgrove,
Of Counsel for Prosecutrix.



( 1368)







Nm 3Iw0mj ^itprattp (Eourt

ALLIE BULLOCK,
Prosecutrix,

vs.

J. ARTHUR WOODING, Clerk of the CityV 
of Long Branch, New Jersey, and the/ 
CITY OF LONG BRANCH, County ofl 
Monmouth, New Jersey, 1

Defendants.

On Certiorari

BRIEF ON PART OF DEFENDANTS.

LEO J. WARWICK,
Attorney and of Counsel 
ufdh Defendants.





Nm  leraeij dourt

A llie  B u l l o c k ,
Prosecutrix, I 

vs. [

J. A r t h u r  W ooding , Clerk of the/ On Certiorari 
City of Long Branch, New Jer­
sey, and the Cit y  of L o n gI 
B r a n c h , New Jersey, |

Defendants. I

BRIEF ON PART OF DEFENDANT.

Facts.

The ordinance under attack was passed by the 
defendant municipality on June 7, 1938, and was 
an attempt to regulate the use of the bathing 
beaches owned and operated by the City of Long 
Branch. This amending ordinance sets up the rules 
and regulations applicable to the use of the bathing 
facilities, and provides for the distribution of pa­
tronage for the safeguarding of bathers so that 
there may be a reasonable compliance with the pro­
visions of an Act of the Legislature known as Chap­
ter 174 of the Laws of 1900.

This ordinance amends two sections of an ordi­
nance which was passed on June 6, 1933, which 
original ordinance has been in force and effect since 
its passage.



2

The remedy by certiorari to annul an ordi­
nance is not open to the prosecutrix in advance 
of any action taken against her under its provi­
sions.

“ I t  is  th e  e s ta b l is h e d  r u le  t h a t  a  r i g h t  o f  a c t io n  
d o e s  n o t  e x is t  in  f a v o r  o f  o n e  w h o  is  o n ly  d a m n if ie d  
a s  o n e  o f  th e  p u b l ic  in  c o m m o n  w it h  h is  f e l l o w - c i t i ­
z e n s .

Kean v. Bronson, 6 V r o o m  4 6 8 ;
Montgomery v. Trenton, 7  Id . 7 9 ;
Jersey City v. Traphagen, 2 4  Id . 4 3 4 ;
Tallon v. Hoboken, 31  Id . 2 1 2 ;
Hamblet v. Asbury Park, 3 2  Id . 5 0 2 ;
Kendall Co. v. Jersey City, 3 6  Id . 123 .

I n  Hamblet v. Asbury Park, M r . J u s t ic e  G a r r i ­
s o n , in  d e l i v e r in g  th e  o p in io n  o f  th e  c o u r t ,  s a id :  
“ C o n v ic t io n  a lo n e  c a n  fu r n is h  e v id e n c e  th a t  th e  
o r d in a n c e  a f f e c t s  t h e  p r o s e c u t o r .”

P r o s e c u t r ix  a r g u e s  f i r s t  t h a t  “ A n  O r d in a n c e  c a n  
b e  a d ju d g e d  to  b e  v o id  b e f o r e  a  c o n v ic t io n  a n d  b e ­
f o r e  a c t io n  to  e n fo r c e  i t  h a s  t e r m in a t e d  in  a  j u d g ­
m e n t  w h e r e  i t  a p p e a r s  t h a t  i t  is  v o id  in  t o t o ” . I t  
f o l l o w s  t h e r e f r o m  t h a t  i f  th e  o r d in a n c e  is  n o t  v o id  
in  t o t o ,  p r o s e c u t r ix  c o n c e d e s  th a t  h e r  a p p l ic a t io n  
f o r  a  w r i t  is  p r e m a t u r e .

T h e  o r d in a n c e  u n d e r  a t t a c k  is  a n  a m e n d m e n t  to  
an  o r d in a n c e  p a s s e d  in  1 9 3 3 . T h e  o r d in a n c e  h a s  
b e e n  in  f o r c e  a n d  th e  p u b l ic  b e a c h e s  o f  th e  C ity  
o p e r a t e d  u n d e r  i t s  p r o v is io n s  s in c e  1 9 3 3 . I n  1 9 3 8  
th e  m u n ic ip a l  b o d y  a m e n d e d  S e c t io n  2 o f  s a id  O r d i ­
n a n c e  p r o v id in g  f o r  th e  r e g u la t io n  a n d  p r e s c r ib in g  
r u le s  a n d  r e g u la t io n s  r e la t in g  to  th e  r e s p e c t iv e  
b e a c h e s . I t  is  c le a r  f r o m  a  m e r e  r e a d in g  o f  th e  
o r d in a n c e  th a t  t h e y  a r e  n o t  v o id  in  t o t o  i f  th e  m u ­
n ic ip a l i t y  h a s  b e e n  v e s t e d  b y  th e  L e g is la t u r e  w it h  
th e  p o w e r  a n d  a u t h o r i t y  t o  r e g u la t e  o r  p r o h ib i t  
b a t h in g  in  th e  w a t e r s  b o r d e r in g  th e  m u n ic ip a l i t y .

P O I N T  I .



3

The Legislature has vested the municipality 
with authority to regulate bathing and the ordi­
nance is a valid exercise of that power.

T h e  R e v is e d  S ta tu te s  4 0 :4 8 - 1  p r o v id e s  t h a t :

“ T h e  g o v e r n in g  b o d y  o f  e v e r y  m u n ic ip a l i t y  
m a y  m a k e , a m e n d , r e p e a l  a n d  e n fo r c e  O r d i ­
n a n c e s  t o :

“ R e g u la t e  o r  p r o h ib i t  s w im m in g  o r  b a t h in g  
in  th e  w a t e r s  o f ,  in  o r  b o u n d in g  th e  m u n ic ip a l ­
it y , a n d  to  r e g u la t e  o r  p r o h ib i t  p e r s o n s  f r o m  
a p p e a r in g  o n  th e  p u b l ic  s t r e e ts , p a r k s  a n d  
p la c e s  c la d  in  b a t h in g  c o s tu m e s  o r  r o b e s , o r  c o s ­
t u m e s  o f  a  s im ila r  c h a r a c t e r .

“ E s t a b l is h , m a in t a in , r e g u la t e  a n d  c o n t r o l  a 
l i f e g u a r d  u p o n  a n y  b e a c h  w it h in  o r  b o r d e r in g  
o n  th e  m u n ic ip a l i t y .”

T h e  R e v is e d  S ta tu te s  4 0 :4 8 - 2  e n a b le s  th e  m u n ic i ­
p a l i t y  t o :

“ M a k e , a m e n d , r e p e a l  a n d  e n fo r c e  su ch  o t h e r  
o r d in a n c e s ,  r e g u la t io n s ,  r u le s  a n d  b y - la w s  . . . 
a s  i t  m a y  d e e m  n e c e s s a r y  a n d  p r o p e r  f o r  th e  
g o o d  g o v e r n m e n t ,  o r d e r  a n d  p r o t e c t io n  o f  p e r ­
s o n s  a n d  p r o p e r t y  a n d  th e  p r e s e r v a t io n  o f  th e  
p u b l ic  h e a lth , s a fe t y  a n d  w e l fa r e  o f  th e  m u ­
n ic ip a l i t y  a n d  it s  in h a b ita n ts , a n d  a s  m a y  b e  
n e c e s s a r y  to  c a r r y  in t o  e f f e c t  th e  p o w e r s  a n d  
d u t ie s  c o n fe r r e d  a n d  im p o s e d  b y  th is  s u b t it le , 
o r  b y  a n y  la w .”

T h e  R e v is e d  S ta tu te s  4 0 :6 1 -1  p r o v id e s  t h a t :

“ T h e  g o v e r n in g  b o d y  o f  a n y  m u n ic ip a l i t y  
m a y :

“ f .  B y  o r d in a n c e  m a k e  a n d  e n fo r c e  ru le s  
a n d  r e g u la t io n s  f o r  th e  g o v e r n in g , u se  a n d  p o -

P O I N T  I I .



4

l i c in g  o f  a ll s u c h  p u b l ic  p a r k s , o p e n  s p a c e s , 
p la y g r o u n d s , b e a c h e s , w a t e r  f r o n t s  a n d  p la c e s  
f o r  p u b l ic  r e s o r t  a n d  r e c r e a t io n  a n d  to  p r o v id e  
p e n a lt ie s  f o r  v io la t io n  t h e r e o f . ”

I t  is  th e  e x e r c is e  o f  th e  p o w e r s  a b o v e  s e t  f o r t h  
th a t  r e s u lt e d  in  th e  o r d in a n c e s  n o w  b e f o r e  th e  
C o u r t . S u r e ly  th is  le g is la t io n  is  d is t in c t  a n d  s p e ­
c i f ic  e n o u g h  t o  e m b r a c e  th e  r ig h t  t o  r e g u la t e  b a t h ­
in g  o n  p u b l ic  b e a c h e s  a n d  t o  p r o h ib i t  o r  r e g u la t e  
a c c e s s  t o  s u c h  b e a c h e s  o r  p u b l ic  p la c e s . T h e  a p p l i ­
c a t io n  o f  in fe r e n c e  is  n o t  r e q u ir e d . T h e r e  is  a c le a r  
in t e n t  o n  t h e  p a r t  o f  th e  L e g is la t u r e  to  d e le g a t e  to  
th e  m u n ic ip a l i t y  th e  p o w e r  to  r e g u la te . O u r  L e g is ­
la t u r e  u n d o u b t e d ly  h a d  in  m in d  th e  e x t e n s iv e  b e a c h  
f r o n t  a lo n g  th e  c o a s t  o f  th e  s ta te . I t  r e c o g n iz e s  it s  
r e c r e a t io n a l  f e a t u r e s  a n d  th e  n e e d  f o r  m u n ic ip a l  
a c t io n  f o r  th e  s a fe t y  a n d  w e l fa r e  o f  th e  p u b l ic .

In  p a s s in g  th e  o r d in a n c e s  in  q u e s t io n  th e  d e fe n ­
d a n t  m u n ic ip a l i t y  s a w  fit  t o  im p o s e  a s  p a r t  o f  th e  
r e g u la t io n  th e  f o r c e  a n d  e f f e c t  o f  a n  A c t  o f  th e  L e g ­
is la tu r e  r e la t in g  to  s e a s h o r e  b a t h in g  e s ta b l is h m e n ts  
w h ic h  A c t  is  k n o w n  a s  R e v is e d  S ta tu te s  5 :1 - 1 .  N o t ­
w i t h s t a n d in g  th e  e x c e p t io n  in  th is  A c t  th e  m u n ic i ­
p a l i t y  s p e c i f ic a l ly  p u ts  i t s  p r o v is io n s  in  e f fe c t . T h e  
o r d in a n c e  u n d e r  a t t a c k  p r o v id e s  t h a t  “ T h e  C it y  o f  
L o n g  B r a n c h  sh a ll c o m p ly  w i t h  a ll th e  la w s  r e g u la t ­
in g  th e  s a fe t y  o f  b a t h e r s  a n d  sh a ll p r o v id e  a ll s a fe t y  
d e v ic e s  f o r  b a t h e r s  a s  a r e  r e q u ir e d  b y  th e  L a w s  o f  
N e w  J e r s e y  a n d  p a r t i c u la r ly  sh a ll k e e p  a n d  o b s e r v e  
a ll o f  th e  p r o v is io n s  o f  C h a p t e r  1 7 4  o f  th e  L a w s  o f  
1 9 0 0  (n o w  th e  R e v is e d  S ta tu te s  a b o v e  c i t e d ) ” . T h e  
m u n ic ip a l i t y  in  r e g u la t in g  r e c r e a t io n a l  c e n t r e s  su ch  
a s  b e a c h e s , a n d  f o r  th e  s a f e t y  o f  th e  la r g e  n u m b e r  
o f  u s e r s , r e c o g n iz e s  th e  s a lie n t  f e a t u r e s  o f  th e  
s a fe t y  p r o v is io n s  im p o s e d  u p o n  b a t h in g  e s t a b l is h ­
m e n ts  a lo n g  th e  s e a s h o r e  a n d  t h e r e f o r e  a d o p t e d  its  
p r o v is io n s .  I t  is  s u b m it t e d  th a t  in  d o in g  so  th e  
m u n ic ip a l i t y  n o t  o n ly  e x e r c is e d  a  la w fu l  p o w e r ,  b u t  
in  f a c t  p e r f o r m e d  a  d u t y  d e le g a t e d  to  i t  b y  th e  
S ta te .



5

T h e  p r o s e c u t r ix  a r g u e s  t h a t  th e  w a t e r s  o f  th e  
A t la n t i c  O c e a n  a r e  a v e n u e s  o f  c o m m e r c e  a n d  th e  
S ta te  o r  i t s  s u b d iv is io n  h a s  n o  ju r i s d i c t io n .  In  a p ­
p ly in g  s u c h  a  c o n t e n t io n  to  th e  b e a c h e s  a lo n g  th e  
s h o r e  f r o n t  p r o s e c u t r ix  v io la t e s  th e  w e l l - r e c o g n iz e d  
p r in c ip le  t h a t  b e lo w  h ig h  w a t e r  m a r k  o f  n a v ig a b le  
w a t e r s  th e  S ta te  is  th e  o w n e r  o f  th e  la n d  s u b je c t  to  
th e  r ig h t s  o f  r ip a r ia n  p r o p r ie t o r s .  T h e  S ta te  o f  
N e w  J e r s e y  h a s  e x e r c is e d  th is  r ig h t  b y  e x e c u t in g  
g r a n t s  a n d  le a s e s  o f  r ip a r ia n  r ig h t s  t o  a d ja c e n t  
p r o p e r t y  o w n e r s .  T h e  S ta te  h o ld s  s u c h  la n d  in  t r u s t  
f o r  th e  p u b l ic  a n d  i t  m a y  e x e r c is e  s u c h  c o n t r o l  f o r  
th e  b e n e fit  o f  th e  p u b lic . A l t h o u g h  th is  p o in t  r a is e d  
b y  p r o s e c u t r ix  is  o f  l it t le  im p o r t a n c e ,  y e t  i t  m a y  b e  
s a id  in  p a s s in g  t h a t  th e  s u p p o s e d  a b s o lu te  r ig h t  in 
th e  p u b l ic  t o  th e  u s e  o f  th e  w a t e r s  a d ja c e n t  to  th e  
s h o r e  is  n o t  w i t h o u t  l im it a t io n . T h e s e  w a t e r s  a d ja ­
c e n t  t o  th e  b e a c h e s  a r e  a t  a ll t im e s , b y  r e a s o n  o f  
th e  c u r r e n t s ,  d a n g e r o u s  to  th e  l i f e  a n d  s a fe t y  o f  
th o s e  w h o  b a t h e  in  th e s e  w a t e r s . T o  s a y  th a t  th e  
S ta te  h a s  n o t  th e  r ig h t  t o  r e s t r i c t  o r  r e g u la t e  is  
e q u iv a le n t  t o  s t a t in g  th a t  th e  in d iv id u a l  m a y  j e o p ­
a r d iz e  h is  l i f e  a n d  s a f e t y  o n  p u b l ic  g r o u n d s  a n d  
r e c r e a t io n a l  c e n t r e s  u n d e r  th e  c o n t r o l  o f  th e  m u ­
n ic ip a l i t y .  T h e  S ta te  p o s s e s s e s  th e  in h e r e n t  a u t h o r ­
i t y  t o  r e s o r t  t o  s u c h  m e a s u r e s  as  m a y  b e  n e c e s s a r y  
to  s e c u r e  c o m m o n  s a fe t y  a n d  m o r a l  n e e d s . P u b l ic  
w e l fa r e  is  o f  p r im e  im p o r t a n c e  a n d  th e  c o -r e la t iv e  
r e s t r i c t io n s  u p o n  in d iv id u a l  r ig h t s  a r e  in c id e n t s  o f  
th e  s o c ia l  o r d e r .  T h e  p o li c e  p o w e r  o f  th e  S ta te  m a y  
b e  d e le g a te d  to  th e  m u n ic ip a l  s u b d iv is io n  c r e a te d  
f o r  th e  a d m in is t e r in g  o f  lo c a l  s e l f -g o v e r n m e n t ,  to  
b e  a s s e r te d  w h e n e v e r  n e c e s s a r y  f o r  th e  g e n e r a l  
g o o d  a n d  w e l fa r e .  %

U n d e r  P o in t  I I I  p r o s e c u t r ix  fu r t h e r  c o n t e n d s  th a t  
th e  O r d in a n c e  is  p r o h ib i t iv e  b e c a u s e  th e  lic e n s e s  
is s u e d  f o r  th e  u se  o f  t h e  b e a c h e s  in  q u e s t io n  a re  
l im it e d  to  a  p e r io d  o f  n o t  le ss  th a n  te n  w e e k s  b e ­
t w e e n  J u n e  15  a n d  O c t o b e r  1st. R e fe r e n c e  is  m a d e  
to  th e  f o l l o w in g  c a s e s  in  s u p p o r t  o f  th is  c o n t e n t i o n :



6

H. Krumgold & Sons, Inc., v. Jersey City, 
1 0 2  N . J . L ., p a g e  1 7 0 ;

McConnell v. Commissioners of Orange, 
9 8  N . J . L ., p a g e  6 4 2 ;

Dornson v. Saul, 9 8  N . J . L ., p a g e  11 2 .

T h e s e  c a s e s  a r e  n o t  in  p o in t  a n d  th e  f a c t s  th e r e in  
a r e  in  n o  w a y  c o m p a r a b le  to  th e  c a s e  a t  is s u e .

I , h o w e v e r ,  j o i n  w i t h  th e  p r o s e c u t r ix  in  c i t in g  th e  
c a s e  o f  McConnell v. Commissioners of Orange on  
th e  g e n e r a l  p r in c ip le  o f  th e  r e a s o n a b le n e s s  o f  r e g u ­
la t io n s  im p o s e d  b y  a  m u n ic ip a l i t y .

“ T h e  p o w e r  o f  a  c i t y  c o u n c i l  o r  o t h e r  b o d y  t o  
p a s s  o r d in a n c e s  r e la t in g  t o  th e  v a r io u s  m a t t e r s  
e n t r u s t e d  b y  th e  le g is la t u r e  to  i t s  ju r i s d i c t io n  
c a r r ie s  w it h  i t  th e  im p l ic a t io n  ( e x p r e s s e d  in 
m a n y  c a s e s )  th a t  s u c h  o r d in a n c e s  m u s t  b e  r e a ­
s o n a b le . E v e r y  in t e n d m e n t  is  m a d e  in  f a v o r  o f  
t h e ir  r e a s o n a b le  c h a r a c t e r ,  a n d  to  s u p p o r t  th e m  
a  c o n s t r u c t io n  w il l  b e  p la c e d  o n  th e m  w h ic h  
w il l  m a k e  th e m  r e a s o n a b le  r a t h e r  th a n  u n r e a ­
s o n a b le ;  b u t  th e  q u e s t io n  o f  t h e ir  r e a s o n a b le  
c h a r a c t e r  is  f o r  th e  c o u r t ,  w h ic h  w i l l  n o t  h e s i ­
ta t e  t o  d e c la r e  th e m  v o id  i f  p la in ly  u n r e a s o n ­
a b le . T h is  is  f a m i l i a r  la w , a c te d  on  in  a  m u lt i ­
t u d e  o f  c a s e s , in  m a n y  o f  w h ic h  th e  c o u r t  c o n ­
fin e d  i t s  a c t io n  to  th e  p a r t i c u la r  p a r t  o f  th e  
o r d in a n c e  s h o w n  t o  b e  u n r e a s o n a b le , le a v in g  
th e  r e s t  t o  s ta n d . S o m e  o f  th e  c a s e s  f o l l o w :  
Long v. Jersey City, 3 7  N . J . L .,  3 4 8 , 3 5 1 ;  
Pennsylvania Railroad Co. v. Same, 4 7  Id . 2 8 6 , 
2 8 8 , in  th e  C o u r t  o f  E r r o r s  a n d  A p p e a ls ,  w h e r e  
C h ie f  J u s t ic e  B e a s le y  s a id  in  th e  o p in io n :  ‘ I f  
t h is  b y - la w  ( o r d in a n c e )  b e  s u b je c t  t o  t h is  im ­
p u t a t io n  ( t h a t  i t  is  u n r e a s o n a b le )  t h e r e  c a n  b e  
n o  d o u b t  t h a t  i t  w o u ld  b e  th e  d u t y  o f  th is  c o u r t  
t o  p r o n o u n c e  i t  a  n u l l i t y . ’ Trenton Horse Rail­
road Co. v. Trenton, 53  Id . 1 3 2 ;  Gaslight Co. v.



7

Rahway, 5 8  Id . 5 1 0 ;  Traction Co. v. Elizabeth, 
Id . 6 1 9 ;  Wyse v. Jersey City, 6 8  Id . 1 2 7 ;  North 
Jersey Street Railway Co. v. Same, 7 5  Id . 3 4 9 ;  
Neumann v. Hoboken, 8 2  Id . 2 7 5 ;  Schwarz 
Bros. v. Board, of Health, 8 3  Id . 8 1 ;  a ff irm e d , 
8 4  Id . 7 3 5 .

“ S u c h  b e in g  t h e  r u le  t o u c h in g  a n  o r d in a n c e  
e n a c te d  w it h  d u e  d e l ib e r a t io n  a n d  s o le m n ity , it  
c a n n o t  s a n e ly  b e  s a id  th a t  a n y  o t h e r  r u le  s h o u ld  
a p p ly  t o  a  r e s o lu t io n  w h ic h  is , in  i t s  v e r y  n a ­
tu r e , o f  a  le s s  f o r m a l  c h a r a c t e r .”

S e e  a ls o  State Board vs. Newark Milk Co., 118  
N . J . E q „  5 0 4 .

T h e  o r d in a n c e  in  q u e s t io n  p r o v id e s  t h a t  f o r  th e  
n o m in a l  f e e  p a id  th e  in d iv id u a l  sh a ll b e  e n t it le d  to  
u s e  th e  b e a c h  f o r  a  g iv e n  p e r io d  o f  t im e . W h a t  w a s  
th e  in t e n t io n  o f  th e  m u n ic ip a l  b o d y ?  W h a t  a r e  th e  
c ir c u m s t a n c e s  a n d  c o n d it io n s  to  b e  m e t  a n d  c o n ­
t r o l l e d ?  T h e  c o u r t  m ig h t  ta k e  ju d ic ia l  n o t ic e  o f  th e  
f a c t  t h a t  th e  p e r io d  in d ic a t e d  is  th e  s h o r e  b a t h in g  
s e a s o n , a  p e r io d  w h e n  b a t h in g  b e a c h e s  a r e  c r o w d e d , 
a p e r io d  w h e n  r e a s o n a b le  r e g u la t io n s  f o r  o r d e r  a n d  
s a fe t y  s h o u ld  b e  im p o s e d . I s  i t  r e a s o n a b le  to  p r o ­
v id e  f o r  th e  u se  o f  p u b l ic  b e a c h e s ?  Is  i t  r e a s o n a b le  
to  r e q u ir e  p e r m it t e e s  u s in g  s u c h  b e a c h e s  to  id e n t i fy  
t h e ir  r i g h t  t o  th e  u s e ?  Is  i t  r e a s o n a b le  to  d e le g a te  
to  th e  D i r e c t o r  o f  th e  D e p a r t m e n t  o f  P a r k s  a n d  
P u b l ic  P r o p e r t y  th e  p o w e r  to  c lo s e  s a id  b e a c h e s  b e ­
c a u s e  o f  s t o r m  o r  c o n d it io n s  d e e m e d  d a n g e r o u s  f o r  
b a t h e r s ?  E v e r y  in t e n d m e n t  is  m a d e  in  f a v o r  o f  
t h e i r  r e a s o n a b le  c h a r a c t e r  a n d  th e  a n s w e r  t h e r e fo r e  
m u s t  b e  in  th e  a ff ir m a t iv e .



8

The ordinance is a reasonable exercise of po­
lice power.

U n d e r  P o in t  I V  p r o s e c u t r ix  c o n c e d e s  t h a t  i f  t h e  
C it y  o f  L o n g  B r a n c h  p o s s e s s e s  ju r i s d i c t i o n  o v e r  t h e  
b e a c h e s  a n d  w a t e r s  o f  th e  A t la n t i c  O c e a n  a d ja c e n t  
t h e r e t o  th a t  i t  is  v e s te d  w i t h  p o w e r  r e a s o n a b ly  to  
r e g u la t e  th e  s a m e . A n d , a g a in  p r o s e c u t r ix  s ta t e s  
t h a t  “ A n  o r d in a n c e ,  t o  b e  s u s ta in e d  a s  a n  e x e r c is e  
o f  p o l i c e  p o w e r ,  m u s t  h a v e  f o r  it s  o b je c t  th e  p r e ­
v e n t io n  o f  s o m e  o f fe n s e  o r  m a n i f e s t  e v i l  o r  th e  
p r e s e r v a t io n  o f  p u b l ic  h e a lth , s a fe t y ,  m o r a ls  c r  p u b ­
l i c  w e l f a r e ” .

W it h  th is  c o n t e n t io n  o f  p r o s e c u t r ix  w e  d o  n o t  ta k e  
is s u e . W h a t  h a s  b e e n  s a id  u n d e r  P o in t  I I  h e r e in  
su ffic e s  t o  s u p p o r t  th e  d e fe n d a n t ’ s p o s it io n  th a t  t h e  
o r d in a n c e  is  a  r e a s o n a b le  e x e r c is e  o f  p o l i c e  p o w e r .

P O I N T  I I I .

P O I N T  I V .

The ordinance is general in scope and applies 
to all citizens.

T h e  in t e n t  a n d  p u r p o s e  o f  le g is la t iv e  e n a c t m e n t s  
a n d  m u n ic ip a l  o r d in a n c e s  a n d  r e s o lu t io n s  a r e  to b e  
f o u n d  in  th e  t e r m s  o f  th e  e n a c t m e n t  o r  o r d in a n c e .

T h e  C it y  o f  L o n g  B r a n c h  is  g o v e r n e d  b y  a B e a r d  
o f  C o m m is s io n e r s  u n d e r  th e  p r o v is io n s  o f  C o m m is ­
s io n  G o v e r n m e n t  L a w . T h e r e  a r e  f iv e  m e m b e r s  o f  
th e  g o v e r n in g  b o d y  a s s ig n e d  as D i r e c t o r s  o f  d e p a r t ­
m e n ts  a s  f o l l o w s : D e p a r t m e n t  o f  P u b l ic  A f fa ir s ,  D e ­
p a r t m e n t  o f  R e v e n u e  a n d  F in a n c e , D e p a r t m e n t  o f



9

P u b l ic  S a fe t y ,  D e p a r t m e n t  o f  P u b l ic  W o r k s ,  D e p a r t ­
m e n t  o f  P a r k s  a n d  P u b l ic  P r o p e r t y .  In  a c c o r d a n c e  
w i t h  th e  w e l l - r e c o g n iz e d  p r in c ip le  o f  C o m m is s io n  
G o v e r n m e n t  L a w  a n d  th e  d e c is io n s  o f  o u r  C o u r ts , 
th e  a d m in is t r a t io n  o f  s a id  b e a c h e s  is  c o m m it t e d  b y  
th e  O r d in a n c e  to  th e  D i r e c t o r  o f  th e  D e p a r t m e n t  o f  
P a r k s  a n d  P u b l ic  P r o p e r t y .

T h e  o r d in a n c e  i t s e l f ,  h o w e v e r ,  is . th e  le g is la t iv e  
e n a c t m e n t  o f  th e  m u n ic ip a l  b o d y  c o n s is t in g  o f  a ll 
th e  m e m b e r s  o f  th e  B o a r d  o f  C o m m is s io n e r s . T h is  
h ig h  le g is la t iv e  fu n c t io n ,  d e le g a te d  b y  th e  le g is la ­
tu r e , c a n  o n ly  b e  e x e r c is e d  b y  th e  m u n ic ip a l  b o d y , 
a n d  w h e n  o n c e  p r o n o u n c e d  b y  o r d in a n c e  i t  c a n n o t  
b e  le g a l ly  c h a n g e d  o r  a lt e r e d  b y  a n y  p e r s o n , o ff ic ia l 
o r  o t h e r w is e .

T h e r e f o r e  w e  m u s t  lo o k  to  th e  o r d in a n c e  i t s e l f  to  
a s c e r t a in  th e  in t e n t  a n d  p u r p o s e .  N o w h e r e  in  th e  
o r d in a n c e  c a n  a n y  in t e n t  b e  fo u n d  o f  le g is la t io n  f o r  
r a c e  s e g r e g a t io n , n o r  c a n  a n y  s u c h  in t e n t  o r  p u r ­
p o s e  b e  in fe r r e d  f r o m  a n y  o f  th e  p r o v is io n s  o f  th e  
o r d in a n c e .  R e g u la t io n  2  in  S e c t io n  2  o f  th e  o r d i ­
n a n c e  p r o v id e s  f o r  th e  is s u a n c e  o f  b a d g e s  a n d  th e  
p u r p o s e  o f  d o in g  so  is  s ta te d . T h a t  p u r p o s e  is  to  
a v o id  c o n g e s t io n , t o  d is t r ib u t e  p a t r o n a g e , a ll f o r  th e  
p r o t e c t io n  a n d  s a fe t y  o f  p a t r o n s . T h e  p r o s e c u t r ix  
a r g u e s  t h a t  th e  in te n t  a n d  p u r p o s e  o f  th e  o r d in a n c e  
is  m a d e  m a n i f e s t  b y  th e  t e s t im o n y  o f  th e  C it y  C le rk . 
S h e  fu r t h e r  s ta te s  in  h e r  b r i e f  th a t  th e  a c t io n  o f  th e  
C it y  C le r k  w a s  “ T h e  r e s u lt  o f  c o n fe r e n c e s  w ith  
A lt o n  V . E v a n s , th e  M a y o r  o f  th e  C it y  o f  L o n g  
B r a n c h ;  F r a n k  A .  B r a z o , C o m m is s io n e r  o f  P u b l ic  
S a f e t y ;  P a u l N a s t a s io , th e  C o m m is s io n e r  o f  S t r e e t s ;  
F r e d e r i c k  W a r d e d , th e  C h ie f  c f  P o l i c e , a n d  o t h e r  
p e r s o n s ” . I  s u b m it  th a t  n o  s u c h  e v id e n c e  is  d is ­
c lo s e d . T h e  t e s t im o n y  o n  th is  p o in t  r e a d s  a s  f o l ­
l o w s :

“ Q . N o w  w e r e  y o u  in s t r u c te d , M r . W o o d ­
in g  t o  f o l l o w  th is  c o u r s e  o r  p r o c e d u r e ,  n a m e ly , 
to  s e g r e g a t e  a n d  s e p a r a te  th e  r a c e s  a t  th e  
b e a c h ?  W e r e  y o u  in s t r u c t e d  to  d o  t h a t ?



10

A . In d ir e c t ly , y e s .
Q . N o w  w h a t  d o  y o u  m e a n  in d ir e c t ly ?  A . 

I n d ir e c t ly  m e a n s  n o t  d ir e c t ly  b y  a n y  p e r s o n .
Q . W h o , th e n , in s t r u c t e d  y o u  in d ir e c t ly  to  

s e g r e g a t e  a n d  s e p a r a te  th e  c o lo r e d  p e o p le  f r o m  
th e  w h it e  p e o p le ?

A . M a n y .
Q . N a m e  th e m , p le a se .
A . S u p p o s e  I c o u ld  n o t  r e m e m b e r  th e m  a l l?

Mr. Warwick: I o b je c t  t o  th e  q u e s t io n  on  
th e  g r o u n d  th a t  th e  o r d in a n c e  g iv e s  t o  th e  C ity  
C le r k  th e  d ir e c t io n s  a n d  a u t h o r it y  t o  is s u e  
th e s e  b e a c h  p r iv i le g e s  a n d  n o  o n e  e lse  h a d  a n y  
a u t h o r it y . W h e th e r  o r  n o t  a n y  o n e  s ta te d  to  
h im  o r  g a v e  h im  a n y  in fo r m a t io n  a s  t o  th e  
m e t h o d s  in  is s u in g  th e  b a d g e s  is  n o t  p e r t in e n t  
to  th e  is s u e . T h e r e  is  n o  r e c it a l  in  th e  o r d i ­
n a n c e  w h ic h  g iv e s  a n y  o n e  e lse  th e  r ig h t  to  
is s u e  b a d g e s  o r  to  d ir e c t  th e  C ity  C le rk .

The Commissioner: N o t e  th e  o b je c t io n .  A n ­
s w e r  th e  q u e s t io n , M r . W o o d in g .

A . In d ir e c t ly , I  w a s  ta lk e d  to —

Mr. Warwick : I o b je c t  t o  a n y  in d ir e c t io n . 
I t  is  n o t  p e r t in e n t , a n d  I t h e r e fo r e  o b je c t  t o  it.

The Commissioner: N o t e  th e  o b je c t io n ,  a n d  
a n s w e r  th e  q u e s t io n .

A . M r . D e y — M r . E m il  D e y , K e a r n e y  R e id , 
R ic h a r d  V a n  D y k e , M a y o r  E v a n s , M r . F r a n k  
B r a z o , M r . P a u l N a s t a s ia , M r . F r e d e r ic k  W a r -  
d e ll a n d  m a n y , m a n y  m o r e . I t  is  a  h a r d  m a t ­
t e r  t o  s ta r t  to  th in k . T h e r e  m u s t  b e  2 5  a t  
le a s t . T h e r e  w a s  a  d e le g a t io n  o f  15 w h o  c a m e  
in  to  see  m e .”



11

B u t  th e  s ta t e m e n ts  m a d e  b y  p r o s e c u t r ix  o f  a  c o n ­
fe r e n c e  w it h  th e  M a y o r  a n d  t w o  C o m m is s io n e r s  a n d  
th e  C h ie f  o f  P o l i c e  is  e r r o n e o u s  a n d  n o t  b o r n e  o u t  
b y  th e  te s t im o n y .

S u p p o s in g  th e  C ity  C le r k  d id  a r b i t r a r i ly  a n d  
th r o u g h  s o m e  w h im  o r  p r e ju d ic e  o r  a s  th e  r e s u lt  o f  
a  c o n v e r s a t io n  w it h  s o m e  in d iv id u a l o r  o ff ic ia l c a s t  
a s id e  th e  m a n d a te  o f  th e  o r d in a n c e  a n d  r e fu s e d  to  
is s u e  a  b a d g e  to  a n  a p p lic a n t , w o u ld  th is  a c t  o n  h is  
p a r t  n u l l i fy  th e  o r d in a n c e  w h ic h  is  n o w  u n d e r  r e ­
v ie w ?  T h e  C o u r t  w i l l  n o t  n u l l i fy  a n d  d e c la r e  v o id  
a  fo r m a l  e n a c tm e n t  o t h e r w is e  v a lid  s im p ly  b e c a u s e  
o f  th e  a r b i t r a r y  c o n d u c t  o f  a n  o ff ic ia l w h o  r e fu s e s  
to  c a r r y  o u t  it s  p r o v is io n s .  T h e  r e fu s e d  a p p lic a n t  
u n d e r  su ch  c ir c u m s t a n c e s  h a d  a  v e r y  e f fe c t iv e  r e m ­
e d y . I f  su ch  a p p l ic a n t  w a s  w it h in  h is  o r  h e r  r ig h t s  
a n d  th e  d u ty  to  is s u e  a  lic e n s e  is  c le a r  u n d e r  th e  
te r m s  o f  th e  o r d in a n c e  th is  c o u r t  w o u ld  h a v e  
p r o m p t ly  is s u e d  it s  p r e r o g a t iv e  w r i t  o f  m a n d a m u s , 
w h ic h  I s u b m it  w a s  a n d  is  th e  p r o p e r  r e m e d y .

O u r  C o u r t  h a s  s e v e r a l t im e s  d e te r m in e d  th a t  it  
w i l l  n o t  in t e r f e r e  u n le ss  i t  is  c le a r ly  s h o w n  th a t  th e  
o r d in a n c e  e it h e r  u p o n  th e  f a c e  o f  it s  p r o v is io n s  o r  
b y  r e a s o n  o f  it s  o p e r a t io n  in  th e  c ir c u m s t a n c e s  
u n d e r  w h ic h  it  is  t o  ta k e  e f fe c t  is  u n r e a s o n a b le  o r  
o p p r e s s iv e .

S e e  North Jersey St. Ry. Co. v. Jersey City, 75  N . 
J . L ., p a g e  3 4 9 .

The line of questioning was objected to as not per­
tinent to the issue and this Court can now pass upon
the objection and rule out the testimony.

“ T h e  f a c t  th a t  in  it s  a p p l ic a t io n  a n d  o p e r a ­
t io n  th e  b u s in e s s  o f  th e  p r o s e c u t o r  m a y  s u ffe r  
b y  d is c r im in a t io n  in  f a v o r  o f  c o m p e t i t o r s  w h o  
c o m p ly  w it h  th e  p r o v is io n s  o f  th e  o r d in a n c e



12

will not render the ordinance unreasonable or 
illegal.”

See Feld v. Passaic, 86 N. J. L., page 95.

These and similar cases relate to ordinances af­
fecting property rights.

P O I N T  V .

The ordinance under review is regulatory in 
the exercise of police power and is not a tax 
measure.

The object of the ordinance is the regulation of 
beaches and the use thereof. If incidental thereto 
fees are imposed this does not make the ordinance 
a revenue measure.

“The taxing power of a municipal corpora­
tion is exercised for the purpose of raising rev­
enue and is subject to certain limitations, while 
its police power is exercised only for the pur­
pose of promoting the public health, morals, 
welfare, safety, etc., and although this may be 
attained by licensing occupations, yet the object 
must always be regulation and not the raising 
of revenue, and, hence, the restrictions of the 
taxing power do not apply.”

43 C. J., page 203.

Speaking in North Hudson Co. Railway v. City of 
Hoboken, 41 N. J. L„ page 71, the Court said:

“The distinction between a power to license, 
as a police regulation, and the same power



13

when conferred for revenue purposes, is of the 
utmost importance. If the power be granted 
with a view to revenue the amount of the tax 
is left to the discretion and judgment of the 
municipal authorities; but if it be given as a 
police power for regulation merely, a much 
narrower construction is adopted; the power 
must then be exercised as a means of regula­
tion and cannot be used as a source of reve­
nue.”

The Court further states in quoting Dillon on 
Municipal Corporations:

“Judge Dillon makes a distinction between 
useful trades and employments and amuse­
ments, exhibitions, etc.; with regard to the for­
mer he says under a power of license the limit 
is a reasonable fee for the license and the labor 
attending its issue; but with respect to the lat­
ter the authority of the corporation as to the 
amount of the charges has been regarded as 
greater than in relation to trades and occupa­
tions.”

There is no declaration in the ordinance specific­
ally stating an intention to utilize the license or fees 
as means of raising revenue. The municipality in 
the exercise of its judgment and discretion deter­
mined that for the costs of operation and regulation 
the nominal fees therein set forth were reasonable 
for the purpose.

The ordinance being passed for purpose of regu­
lation provides for the cost and expenses thereof by 
declaring that an appropriation shall be made in the 
annual budget of the City. This provision also sup­
ports the view that the ordinance is not a tax meas­
ure.



14

P O I N T  V I .

The ordinance under review does not vest dis­
cretion in the City Clerk.

It is true that when a public official is vested with 
discretion, definite rules of action for his guidance 
must be set up. But the ordinance in question vest­
ed no such discretion other than the ministerial duty 
of issuing badges on application and requiring him

secure badges of distinctive design for the use 
on the respective beaches.

If it can be said that there is a delegation of 
authority, we must then turn again to the principle 
of police regulation and the wide latitude granted 
to such legislation. It is well-settled that it is not 
always necessary that statutes and ordinances pre­
scribe a specific rule of action, but on the other hand 
some situations require the vesting of some discre­
tion in public officials, as for instance where it is 
difficult or impracticable to lay down a definite com­
prehensive rule, or the discretion relates to the ad­
ministration of a police regulation and is necessary 
to piotect the morals, health, safety and general 
welfare.

See Annotation 12, A. L. R., page 1447. The or­
dinance in question simply delegates to the City 
Clerk ministerial or administrative functions which 
is a \alid exercise of the power of the municipal 
government.



15

CONCLUSION.

For the reasons above set forth I submit that 
the ordinance under review is legal and a valid 
exercise of the powers delegated to the municipal 
government.

R e s p e c t fu l ly  s u b m it te d ,

L E O  J . W A R W I C K ,

Attorney and of Counsel 
with Defendants.

*





IN  TH E

Supreme Court of Pennsylvania
W estern  D istrict .

No. 222 MARCH TERM, 1939.

JOSEPH A. RANDALL, et al, 
vs.

CITY OF CLAIRTON, ALLEGHENY COUNTY, 
PENNA., et at., Appellants.

P re lim in ar y  I n j u n c t io n .

BRIEF FOR APPELLANTS AND RECORD.

Appeal from the Order of the Court of Common Pleas 
of Allegheny County at No. 2573 July Term, 1939.

JOHN A. METZ,
C. JOSEPH RECHT, 

Attorneys for Appellants.
700 Jones Law Bldg.,
Pittsburgh, Pa.

BATAVIA TIMES, LAW PRINTER8,
BATAVIA, N. Y.

JO B IA H  SM ITH C O ., PE N N SYL VA N IA  R E PRESENTATIVE,
7 0 4  S E C O N D  A V E N U E ,  P I T T S B U R G H ,  P A .



INDEX TO BRIEF.

PAGE
Statement of Questions Involved.......................... ' 1
History of the Case...................................................  2
Assignment of Error.................................................  3
Argument................................................................... 4

I. Is a swimming pool a place of public ac­
commodation, resort or amusement with­
in the meaning of the Act of June 11,
1935, P. L. 297?...........................................  4

II. Does a bill in equity lie for the sole pur­
pose of enjoining violation of a criminal 
statute, specifically the Act of June 11, 
1935, P. L. 297?...........................................  11

III. Where a remedy for the matters com­
plained of in a bill in equity is provided, 
by means of mandamus, by Act of As­
sembly, does equity have jurisdiction to 
entertain the bill?.......................................  12

IV. Where the Plaintiffs pray for a prelimi­
nary injunction enjoining and restrain­
ing the defendants from interfering with 
the free use and enjoyment of the facili­
ties of a swimming pool by the plaintiffs 
but fail to prove any such interference 
by the defendants or any of them, should 
the preliminary injunction be issued?.. . 17



INDEX TO RECORD.

Appearance Docket Entry......................................
Bill of Complaint.....................................................

Exhibit “ A ” —Letter dated June 6, 1939 to 
Mayor Mullen and Members of the City 
Council of Clairton, Pa., signed by Jo­
seph A. Randall and Charles P. Hayes.. 

Transcript of Testimony........................................

P e t it io n e e ’ s C a s e :
Direct
Exam.

Cross
Exam.

Dr. Joseph Randall___ . . . .  10 a 15 a
Charles W a d e ............. . . . .  16a 18 a
W. A. Pettis................. . . . .  19 a 20 a
John J. Mullen............. . . . .  2 1 a
John Watko—Called..........
Michael E. Wargo—Called.
Certificate ...........................
Pinal Order of Court.........
Adjudication......................

PAGE

1 a
2 a

7 a 
9 a

28 a
28 a
29 a
30 a 
31a



:? 11
. . . . . . .

■; jJ -
■ « ©  .5:

..........................
: • • • • -  - .......................................................................... :l —

- • ........... .. . . . .
....................... . . . . . .  . . .

• ........................ * • • ....................................... - ■ - .  0  '-0 ■ ' Z i  ,1 i

:■ $ • ..................................................... ‘ " /



Statem ent o f Questions Involved.

Is a swimming pool a place of public accommo­
dation, resort or amusement within the meaning of the 
Act of June 11,1935, P. L. 297 f Not answered.

Does a Bill in Equity lie for the sole purpose of 
enjoining violation of a criminal statute, specifically 
the Act of June 11, 1935, P. L. 2971 Affirmed.

Where a remedy for the matters complained of in 
a Bill in Equity is provided, by means of mandamus, 
by Act of Assembly, does equity have jurisdiction to 
entertain the Bill? Affirmed.

Where the plaintiffs pray for a preliminary in­
junction enjoining and restraining the defendants from 
interfering with the free use and enjoyment of the fa­
cilities of a swimming pool by the plaintiffs but fail to 
prove any such interference by the defendants or any 
of them, should the preliminary injunction be issued? 
Affirmed.



History of the Case.

H istory o f the Case.

. . The City of Clairton, Allegheny County, Pennsyl­
vania, some years ago constructed a swimming pool in 
Clairton Park from the proceeds of bonds issued by 
the City of Clairton, the principal and interest of which 
bonds are being paid by the taxpayers of the City. Un­
til the current year (1939) the City operated this pool. 
During the current year the pool has- not been opened 
or operated and is now closed.

Joseph A. Randall and Charles P. Hayes, two per­
sons of color, on or about June 13, 1939, on behalf of 
themselves and all other persons of color, citizens and 
-residents of the City of Clairton, filed a Bill of Com­
plaint against the City of Clairton, the Mayor of the 
City and the members of the City Council, alleging that 
the defendants had refused them admission to the 
swimming pool and charging that such alleged refusal 
was in violation of the Act of Assembly of Mune 11, 
1935, P. L. 279.

The Bill prayed that the defendants and each of 
them be enjoined and restrained from interfering in 
any manner with the free use and enjoyment of the 
facilities of the swimming pool by the plaintiffs as well 
as by other persons of color, citizens of the City of 
Clairton.

A motion was made for a preliminary injunction 
and after a hearing the court (Smith, Judge) granted 
a preliminary injunction as prayed for.

Prom the order granting a preliminary injunction 
this appeal was taken and a bond filed in accordance 
with the provisions of the Act of Assembly.



Assignment of Error.
3

A ssignm ent o f E rror.

The court erred in making an order granting a 
preliminary injunction. The order and the exception 
thereto are as follows:

“ ORDER (30a).

A nd  N o w , to-wit, this 30th day of June, 1.939, 
the within matter having come up for hearing, 
testimony taken and upon consideration thereof, 
it is hereby ordered, adjudged and decreed that 
the City of Clairton; John J. Mullen, Mayor of 
the City of Clairton; John Watko, John Miller, 
C. D. Jackson and Warren W. Scherer, Council- 
men of the said City of Clairton; are hereby en­
joined and restrained, and all persons, their serv­
ants, agents or employees, employed by the City 
of Clairton are enjoined and restrained from in­
terfering with the Plaintiffs or any citizens or 
residents by reason of race or color of the City of 
Clairton in the free use and enjoyment of the 
facilities of the Clairton Park Swimming Pool, 
and the defendants, and any other person, their 
servants, agents or employees, of the City of Clair 
ton, are restrained and enjoined from discriminat­
ing as regards color or race in the free use and 
enjoyment of the facilities of the Clairton Park 
Swimming Pool.

By the Court,
R. H. S.



4
Argument.

“ EXCEPTION (30a).

Eo die, Exception noted to the defendants and 
bill of exception sealed.

Ralph H. Smith, J. (seal) 
Judge.”

A R G U M E N T .

Pour separate and distinct questions, as specifical­
ly enumerated in the “ Statement of Questions In­
volved,’ ’ are raised in this appeal. "VVe will argue 
them in order. The first question is :

I.

Is a swimming pool a place o f public accommo­
dation, resort or amusement within the m eaning  
of the A ct of June 11 ,1935 , P . L. 297?

In the eighth paragraph of the Bill of Complaint 
(Record, 4a) the appellees charge that the alleged 
refusal by the appellants of the use of the Clairton 
swimming pool is in violation of the Act of Assembly 
of June 11, 1935, P. L. 297.

Section 1 of this Act provides as follows:
“ Section 1. Be it enacted, &c., That any per­

son, company, corporation, being owner, lessee or 
manager of any restaurant, hotel, railroad, street 
railway, omnibus line, theatre, concert, hall or 
place of entertainment, or amusement, who shall 
refuse to accommodate, convey or admit any per-



Argument.
5

son or persons on account of race or color over 
their lines, or into their hotel, or restaurant, 
theatre, concert, hall or place of amusement, shall, 
upon conviction thereof, be guilty of a misde­
meanor, and be punished by a fine not less than 
fifty dollars nor more than one hundred dollars. 
* * * A place of public accommodation, resort or 
amusement, within the meaning of this article, 
shall be deemed to include inns, taverns, road­
houses, hotels, whether conducted for the enter­
tainment of transient guests, or for the accom­
modation of those seeking health, recreation or 
rest, or restaurants or eating houses, or any place 
where food is sold for consumption on the prem­
ises, buffets, saloons, barroms, or any store, park, 
or inclosure where spirituous or malt liquors are 
sold, ice cream parlors, confectioneries, soda foun­
tains, and all stores where ice cream, ice and fruit 
preparations, or their derivatives, or where 
beverages of any kind, are retailed for consump­
tion on the premises, drug stores, dispensaries, 
clinics, hospitals, bathhouses, theatres, motion pic­
ture houses, airdromes, roof gardens, music halls, 
race courses, skating rinks, amusement and recrea­
tion parks, fairs, bowling alleys, gymnasiums, 
shooting galleries, billiard and pool parlors, pub­
lic libraries, kindergartens, primary and second­
ary schools, high schools, academies, colleges and 
universities, extension courses, and all educational 
institutions under the supervision of this Com­
monwealth, garages and all public conveyances



6
Argument.

operated on land or water, as well as the stations
and terminals thereof.’ ’

The court will note that two prominent types of 
amusement places are omitted from the lengthy tabula­
tion of what the term “ place of public accommodation, 
resort or amusement”  is to be “ deemed to include.”

Swimming pools and dance halls are the notable 
omissions.

It is clear that their omission was deliberate and 
for good and sufficient reasons.

The increased element of physical proximity be­
tween persons in the use of a swimming pool, as com­
pared with other types of amusement places, is at once 
apparent to everyone. It was apparent to the members 
of the legislature who therefore omitted swimming 
pools from the list of places of amusement enumerated 
in the Act.

Patrons of a hotel, theater, restaurant or other 
similar place of public accommodation or amusement, 
regardless of their color, need not be in close personal 
contact; but swimming or bathing in the same pool and 
in the same water is an entirely different matter. This 
distinction was recognized by the legislature.

The question of race equality by statute is fully 
and ably discussed in the November Issue of the Uni- 
iversity of Pennsylvania Law Review reported in 
Volume 84, page 75 of the University of Pennsylvania 
Law Review and American Law Register. The fol­
lowing extract from that article appearing on Page 81 
is pertinent:



Argument.
7

“ As may have been expected, there has been 
considerable controversy as to the places covered 
by these statutes. Certain standard provisions 
remove from the field of possible doubt ‘ convey­
ances on land and water ’ theatres, restaurants and 
inns. Barber shops are mentioned by name in 
many statutes as are bath houses and skating 
rinks. In New Jersey, New York and Pennsyl­
vania a large number of places are specified. The 
question of interpretation arises of course over 
places not specifically named. There has been 
litigation over bootblack stands, saloons, dance 
halls, beauty parlors and soda fountains. Courts 
readily adopt the dogma that penal statutes are to 
be strictly construed, and the same is true of those 
in derogation of the common law. When general 
phrases such as ‘ places of public accommodation’ 
are followed by enumeration of specific places, the 
general terms are, of course, limited by the latter 
list. Many statutes, after enumerating specific 
places, add the phrase ‘ and all other places of 
public accommodation.’ Even in such a situation 
it has been held that this general phrase was to 
include only the same type of place as those speci­
fically mentioned. In one case, however, it was 
held that this doctrine of ejusdem generis was in­
applicable since the enumerated places were of so 
diversified a character as to have no common char­
acteristic.

The new Pennsylvania Act does not include 
the phrase ‘ and all other places.’ This makes 
doubly significant the omission of at least two



8
Argument.

prominent types of amusement place in the lengthy 
tabulation of what the term ‘ place of public ac­
commodation’ is to be ‘ deemed to include.’ 
Swimming pools and dance halls are the notable 
omissions, too important to admit of suggestion 
that the failure to include them was due to over­
sight. It is worthy of note that these places are 
not specifically mentioned in any of the Acts, and 
while dance halls have been held included under 
the ‘ and all other places ’ clause, an entirely op­
posite result has been reached even under such a 
clause. The court in the latter case pointed out 
that the omission of such a place may well have 
been deliberate, due to the increased element of 
physical proximity attached to that type of amuse­
ment place. No reported cases have been found 
passing on the question of swimming pools, though 
the exclusion of bath houses at a beach would 
come under the specific ban of most of the statutes. 
It seems safe to predict that pools and dancing 
establishments will not be held answerable to the 
new Pennsylvania Bill, unless the above principles 
are completely disregarded.”

The Act of 1935 is a penal statute and therefore 
must be strictly construed. It should not be construed 
so as to extend its scope beyond its expressed limita­
tions. The legislature, for reasons good and suffi­
cient, saw fit to omit swimming pools from the pur­
view of the Act. It is not within the province of courts 
to attempt to enlarge the statutory enactment by a 
judicial amendment, adding what the legislature



Argument.
9

omitted. The legislature did not and the courts, there­
fore, will not include swimming pools within the scope 
of the Act of 1935.

A case directly in point involving construction 
of a criminal statute, is Commonwealth vs. Herb Roth 
Et Al., 7 Atlantic Reporter 2d 145 (not yet printed 
in official reports).

In that case the defendants were convicted of be­
ing professional pickpockets in a proceeding under 
the Act of June 7, 1901, P. L. 492, Section 1, 18 P. S. 
Section 2831, which Act provides in substance that any 
person charged with being a professional pickpocket 
and who shall have been arrested at any steamboat 
landing, railroad depot or station, ferry house, on the 
platform or inside of any street passenger railway 
car, in any church or the vestibule or corridor thereof, 
in any park or place of public amusement or recrea­
tion, on crowded thoroughfares or in a number of 
other enumerated places shall be committed to the 
county jail for a term of not exceeding ninety days 
etc.

The defendants were arrested in the court house 
at Uniontown, Payette County, at the time of a political 
meeting. The Superior Court, in construing the Act, 
held that court houses, not being enumerated as one 
of the forbidden places mentioned in the Act, could not 
be included by judicial construction and therefore 
reversed the judgment of the lower court and ordered 
that the defendants be discharged.



10
Argument.

In its opinion the court said (Page ) :
“ It is easy enough to-argue that the act should 

be construed to cover the present situation, but the 
legislature,, wisely or unwisely, has not, in our 
judgment, seen tit to do so. The legislature did 
not intend that the Act of 1901 should include every 
place which professional thieves, burglars, or pick­
pockets might possibly frequent or attend, for ‘ it 
is to be noticed * * * that the Act of 1901, in des­
ignating what for convenience may be called the 
forbidden places, includes some places that were 
not mentioned in the local acts (Act of March 13, 
1862, P. L. 115, as amended and extended by the 
Act of March 16, 1864, P. L. 16), others that were 
mentioned, in some instances describing the latter 
with more particularity, and omitting some places 
that were mentioned in the local acts ’ : Common­
wealth ex rel. Melinkoff v. Keeper of Gounty 
Prison, supra, 49 Pa. Superior Ct. 647, at page 
651.

We are not inclined by strained construction 
to extend the scope of the act in question beyond 
its expressed limitations, as it is not within the 
province of eourts to attempt to improve statu­
tory enactments by judicial amendments.”

We submit, therefore, that under the established 
rules of construction, swimming pools do not come with­
in the purview of the Act of 1935. The result, as ap­
plied to this case, is that the preliminary injunction 
restraining an alleged violation of the Act of 1935 in 
refusing the plaintiffs the use of the Clairton swim­
ming pool should not have been granted.



Argument.
11

n.
Does a bill in equity lie fo r  the sole purpose of 

enjoining violation of a criminal statute, specifical­
ly the A ct o f June 1 1 ,193 5 , P . L. 297?

This second question becomes important and need 
be decided if and only if this court should be of the 
opinion that swimming pools do come within the pur­
view of the Act of 1935.

The Act of 1935, P. L. 297, is a criminal statute 
which provides the machinery for punishing* those who 
violate it by fine or imprisonment.

It is not now open to question that a bill in equity 
will not lie to enjoin the violation of a penal statute.

In C ommonwealth Et Al. vs. Smith, 266 Pa. 511, 
this court in an opinion by Mr. Chief Justice Brown, 
said on Page 516:

“ A crime is an act committed or omitted in 
violation of a public law* either forbidding or com­
manding it, and it is well settled that a bill will not 
lie having for its sole purpose an injunction against 
the mere commission of a crime, as is the case here, 
under the unchallenged sixth fact found by the 
learned chancellor: Klein v. Livingston -Club, 177 
Pa. 224. * * * The penal law that is violated is pro­
vided with the machinery for punishing it, and to 
it the violation must be referred. One reason why 
equity cannot interfere is that there is a remedy at 
law by statute, and we must presume it .adequate, 
for it is what the law has provided and no more.”



12
Argument.

Hence, even if the Act of 1935 did apply to swim­
ming pools, the preliminary injunction would never­
theless be improper because it is against the commis­
sion of a crime and such a bill will not lie.

in.
W h ere a remedy for the m atters complained 

o f in a bill in equity is provided, by m eans o f m an­
damus, by A ct of Assem bly, does equity have juris­
diction to entertain the bill?

This third question involved in this appeal has no 
relation whatever to the questions of whether or not 
swimming pools come within the purview of the Act of 
1935 or whether or not equity has jurisdiction to en­
join the violation of a penal statute.

For the purpose of arguing this question and for 
that purpose only, we will assume that the appellees, 
as citizens of the City of Clairton, have an unquestioned 
right to purchase tickets that will admit them to the 
Clairton swimming pool and that the appellants have 
refused to sell them such tickets, or, in other words, that 
appellees have the same right as any other citizen of 
the City of Clairton to purchase tickets which would 
admit them to the swimming pool, and that the city of­
ficials, appellants, have refused to sell them such tick­
ets but have sold tickets to other citizens which per­
mitted them to enter and use the swimming pool.

The granting of the preliminary injunction by the 
court below was improper for a third reason wholly



Argument.
13

separate and distinct from the two reasons argued 
supra.

The Bill is one brought by citizens of the City of 
Clairton to enforce a ministerial duty imposed upon 
the defendants, as the Mayor and members of the City 
Council, in and about the operation of the Clairton 
swimming pool. The pool was built and is maintained 
by the public funds of the City of Clairton and the 
operation and conduct of the pool, along with the other 
parts of the municipal or public plant of the City, de­
volves upon the defendants as the officials of the City. 
The duty of the defendants which is sought to be en­
forced, involves no exercise of their official discretion 
or judgment but is a purely ministerial duty, to-wit, the 
duty of permitting the Appellees, together with all the 
other citizens of the City, to use the pool—the duty, in 
other words, of selling tickets for admission to the 
pool to the appellees as well as to the other citizens.

When the Bill is seen in this light, it is at once ap­
parent that a court of equity has no jurisdiction to en­
tertain it. A plain remedy for the matters complained 
of in the Bill is provided by the Acts of Assembly of 
Pennsylvania relating to the writ of mandamus and, 
for that reason, the remedy provided by statute by 
means of mandamus must be strictly pursued and a 
court of equtiy has no jurisdiction to lend its aid.

The Act of March 21, 1806, P. L. 558, 46 P. S. 156, 
provides that “ where a remedy is provided * * * by 
any Act or Acts of Assembly of this Commonwealth, 
the directions of . the said Acts shall be strictly pur­



14
Argument.

sued, and no penalty shall be inflicted, or anything done 
agreeably to the provisions of the common law, in such 
cases * *

This Act has been construed by your Honorable 
Court in a line of cases beginning with Heller vs. Fish­
man, 278 Pa. 328 and continuing through Stetson’s Es­
tate, 305 Pa. 62 as meaning that where a statute pro­
vides a remedy its directions must be strictly pursued 
and the prior method of procedure to obtain relief, 
whether at common law or in equity, is superseded and 
excluded by the statutory remedy.

If, then, there is a statutory remedy provided for 
the matters complained of in this Bill, it is not open to 
question that the court below had no jurisdiction to 
entertain the Bill. The remedy provided by statute 
should have been resorted to by the appellees.

The only question, therefore, is as to the exist­
ence of a remedy provided by statute for the matters 
complained of in the Bill.

The matters complained of in the Bill constitute 
a clear example of a fact situation for which the remedy 
by mandamus is specifically provided by Act of As­
sembly.

The Act of June 8 , 1893, P. L, 345, 12 P. S. 1911 
et seq., confers statutory power upon the Courts of 
Common Pleas to issue writs of mandamus to public 
officers. A  brief reference to the discussion of man­
damus in the Standard Pennsylvania Practice Volume 
11, Chapter 46, particularly at Pages 154 and 155,



Argument.
15

shows a large compilation of cases to the effect that it 
is settled that mandamus is the appropriate writ by 
which a ministerial act or duty of a public officer will 
be enforced.

As we have pointed out supra, the enforcement of 
a ministerial duty devolving upon the defendants as the 
public officials of the City of Clairton is precisely what 
this Bill seeks.

It is true that the prayer of the Bill is not in terms 
that the defendants be required to sell pool tickets to 
the appellees. The language of the prayer is in the 
negative to the effect that the defendants be restrained 
from interfering with the appellees in the free use of 
the pool in accordance with the rules and regulations 
therefor provided by ordinance—which means, that the 
defendants be restrained from interfering with the 
appellees using the pool by buying tickets of admission 
thereto. The sale of the tickets of admission to the 
pool is under the control of the defendants and the ap­
pellees, by phrasing the prayer of their Bill in the neg­
ative, cannot change the fact that what they are really 
praying for is inevitably that the defendants be re­
quired to sell tickets of admission to the pool to the 
appellees. They are seeking to enforce a duty de­
volving upon the defendants as public officials of the 
City in the management of the public pool thereof— a 
duty which involves the exercise of no official discretion 
and which is, on the contrary, purely ministerial, to­
wn, the duty of selling tickets of admission to the pool 
to all citizens of the City of Clairton'. ■ • :



16
Argument.

By virtue of the provisions of the Act of 1806, 
therefore, as consistently construed by your Honorable 
Court, the court below had no jurisdiction to entertain 
the Bill and grant the preliminary injunction. The 
Acts of Assembly relating to mandamus provide a 
statutory remedy for the matters complained of in the 
Bill and the appellees are obliged to follow the stat­
utory remedy provided.

It should be noted in connection with the statutory 
remedy provided by way of mandamus, that the stat­
ute in question provides a remedy for the matters com­
plained of in the Bill just as clearly whether the relief 
is sought by one citizen of the City of Clairton for him­
self or for and in behalf of all citizens of the same 
class. The practice is established under the Mandamus 
Act that when the duty to be enforced is public and the 
one aggrieved has a special, specific, private interest 
separate, distinct and different from that of the public, 
he sues in his own name simply, without naming the 
Commonwealth. If, however, the injury is to a pri­
vate party in common with other members of the pub­
lic similarly situated the action must be brought in the 
name of the Commonwealth: Standard Pennsylvania 
Practice Volume 11, Pages 167, 168 and 169 and 170. 
Any objection that the Mandamus Act does not pro­
vide a remedy for the matters complained of in the Bill 
on the ground that a multiplicity of suits would be re­
quired in order to secure relief by way of mandamus 
as distinguished from a class bill in equity—is there­
fore wholly untenable.



Argument.
17

IV .

W h ere the plaintiffs pray fo r  a preliminary in­
junction enjoining and restraining the defendants 
from  interfering w ith the free use and enjoym ent 
of the facilities of a sw im m ing pool by the plain­
tiffs but fail to prove any such interference by the 
defendants or any o f them , should the preliminary  
injunction be issued?

The sole purpose of a preliminary injunction is 
to maintain the status quo until final hearing. There 
is never any justification for the issuing* of a prelim­
inary injunction except where equity and good con­
science require that some existing fact situation should 
remain unchanged until the final disposition of the 
case on its merits. The rule applicable here was stat­
ed by this court in Fredericks et al. vs. Huber, 180 Pa. 
572 on Page 575 as follows:

“ This is not the office of a preliminary injunc­
tion, which is not to subvert but to maintain the 
existing status until the merits of the controversy 
can be fully heard and determined. The sole ob­
ject of a preliminary injunction, says Strong, J., 
in Farmers’ R. R. Co. v. Reno, etc., R. W. Co., 53 
Pa. 224, ‘ is to preserve the subject of the contro­
versy in the condition in which it is when the order 
is made.’ ’ ’

In the instant case the public swimming pool in the 
City of Clairton has not been open this season. Tickets 
for admission to the pool have not been sold to any cit­



18
Argument.

izen regardless of color. Neither has the City or any 
of the defendants refused to sell tickets of admission to 
the pool to any citizen of any color.

It is true that in the fourth paragraph of the Bill 
of Complaint (Record, 3 a) the plaintiffs aver that 
at various times and days they offered the necessary 
currency for tickets for admission to the said swim­
ming pool which they allege was refused by the de­
fendants, their agents, servants and employees, but 
proof of any such averment is entirely lacking.

As shown by the record, the only evidence offered 
was that of a colored boy (Record 16 a) who 
claimed that at some time in the past (1938) when the 
pool was open he purchased a ticket from a ticket 
seller and that then the ticket seller took it away from 
him. The record shows that at the time of this alleged 
occurrence which, if it ever did occur, was not during 
the current season, none of the defendants were pres­
ent. Neither is there any evidence that any of them 
had any knowledge of it or that the ticket seller was 
acting under instructions from the defendants or any 
of them.

On the other hand the plaintiffs called John J. 
Mullen, one of the defendants, and the Mayor of Clair- 
ton, for cross examination. Mr. Mullen testified (Rec­
ord 2 1 a) that he had never refused to sell tickets 
to persons of color and that no instructions were ever 
issued to any employee ticket seller to refuse to sell 
tickets to persons of color. This testimony was not 
contradicted. Mr. Mullen frankly admitted that he



Argument.
19

personally was opposed to persons of both, races using 
.the pool. He stated just as frankly that he had never 
refused admission to persons of color and that he had 
not instructed any employee to refuse to sell .tickets to 
persons of color.

The record does show that the plaintiffs as officers 
of the Negro Civic and Protective League, made a de­
mand in writing on the Mayor and the members of 
City Council that they be given exclusive use of the 
swimming pool two days in every week and one Sun­
day in every month (Record 8 a). This request 
was refused and, very properly so, for two reasons: 
First, because the pool was not open for use by any­
one; and Second, because the City officials would have 
no right to grant any group the exclusive use of the 
pool on certain particular days.

In the letter by which this request was made by 
the plaintiffs to the defendants, the plaintiffs them­
selves admitted that they had never been refused ad­
mittance to the pool because of their color (Exhibit 
“ A,”  Record, 7 a).

The only fact situation existing at the time the 
preliminary injunction was granted was that the swim­
ming pool was closed. Tickets of admission were not 
being sold to anyone nor were tickets being refused to 
anyone. The pool was not open then and is not open 
now. The preliminary injunction which was granted 
was neither necessary to maintain that status quo nor 
does it have that effect. On settled principles there 
is no justification for such a preliminary order.



2 0

Argument.

In conclusion we submit that for each of the four 
reasons assigned, the court erred in granting a pre­
liminary injunction and its action in so doing should 
be reversed.

Respectfully submitted,

John A. Metz,
C. Joseph Recht, 
Attorneys for Appellants.



Appearance Docket E ntry.

June 15, 1939, Equity.

June 15, 1939, Bill of Complaint and affidavit 
tiled, and Injunction Affidavits filed.

And now, June 15, 1939, the within Bill of Com­
plaint having been filed, together with injunction affi­
davits, which said injunction affidavits have been sub­
mitted to the Court, and upon consideration thereof, 
it is ordered, adjudged and decreed, the hearing for 
an injunction fixed for Friday, the 23rd day of June, 
1939 at 8:30 o ’clock A. M. (E. S. T.).

June 15, 1939, Notice filed showing service a c ­

cepted, together with copies of Bill of Complaint, June 
15, 1939, by C. Joseph Eecht, Atty. for the defendants.

July 21, 1939, On motion hearing postponed until 
June 30, 1939 at 8:30 A. M., (E. S. T.).

June 30, 1939, Upon hearing it is hereby ordered, 
adjudged and decreed that the City of Clairton; John
J. Mullen, Mayor of the City of Clairton; John Watko, 
John Miller, C. D. Jackson, and Warren W. Scherer, 
Councilmen of the City of Clairton are hereby enjoined 
and restrained and all persons, their servants, agents 
or employees, employed by the City of Clairton are 
enjoined and restrained from interfering with the 
Plaintiffs or any citizens or residents by reason of race 
of color of the City of Clairton in the free use and en­
joyment of the facilities of the Clairton Park Swim­
ming Pool, and the Defendants, and any other person, 
their servants, agents or employees of the City of 
Clairton, are restrained and enjoined from discrim­



2 a
Bill of Complaint.

mating as regards color or race in the free use and en­
joyment of the facilities of the Clairton Park Swim­
ming Pool.

July 1, 1939, Certiorari in Appeal ex parte de­
fendants to the Supreme Court filed.

July 1, 1939, Preliminary Objections to Bill of 
Complaint filed.

Eo die, Praecipe for Argument List filed.

July 1, 1939, it is ordered that Bond for appeal 
in above case be entered in the sum of $500.00.

Eo die, Bond of Defendants with Maryland Cas­
ualty Co., a corp. as surety in the sum of $500.00 pre­
sented in Open Court approved and filed.

From the Record,

W m. H. Frasher,
( s e a l )  Prothonotary.

Bill of Complaint.

(Filed June 15, 1939.)

To the Honorable, the Judges of said Court:

Your Orators complain and say:

1. That your Orators, of the Plaintiffs, citizens of 
the United States of America and the Commonwealth 
of Pennsylvania, and residents of the City of Clairton, 
Allegheny County, State aforesaid, are persons of 
color and as well for themselves as for such other



Bill of Complaint.
3 a

land owners and residents in like relationship to the 
matters hereof as may become parties thereto.

2. That the Defendants above named are of the 
City of Clairton, a Corporate Political Subdivision of 
Allegheny County, Pennsylvania; John J. Mxjllen is 
a citizen and resident of the said City and holds the 
Office of Mayor of said City; and John Watko, John 
Millee, C. D. Jackson and Waeeen W. Scheeee are 
also citizens and residents of the said City and hold the 
offices of Councilmen thereof.

3. That the City of Clairton maintains and op­
erates a public swimming pool in Clairton Park, said 
swimming pool having been constructed from the pro­
ceeds of bonds issued by the City of Clairton, said 
bonds being issued under proper authority, the prin­
cipal and interest of said bonds being paid by the tax­
payers, of which your Orators are a part.

4. That your Orators at various dates and times 
offered the necessary currency for tickets for admis­
sion to the said swimming pool which was refused by 
the Defendants, their agents, servants and employees.

5. Your Orators complain and say that numerous 
other citizens of color in the said City at various times 
and dates offered the required currency for the pur­
chase of tickets for admission to said swimming pool 
but that the currency was refused as well as admission 
to the said swimming pool.

6. Your Orators complain and say that on June 
6, 1939, they appeared before all of the above Defend­
ants in person and made requests for the use of the



Bill of Complaint.
4 a

said swimming pool, which requests the Defendants re­
fused.

7. Your Orators aver that in addition to the oral 
request, they wrote a letter to the above named Defend­
ants under date of June 6, 1939, making demand upon 
said Defendants for the use of said swimming pool, a 
copy of which letter is hereto attached, made a part 
hereof and marked Exhibit “ A .”

8. Your Orators allege, are reliably informed and 
believe that the refusal by the said Defendants for the 
use of the said swimming pool is in violation of the 
Act of Assembly of June 11, 1935, P. L. 297, and are 
further informed, believe and expect to be able to prove 
on the trial of this case that the Defendants within 
named have unlawfully instructed the employees of the 
City of Clairton in charge of the said swimming pool 
to exclude from the said swimming pool all persons of 
color, citizens and residents of the City of Clairton.

9. Your Orators allege that on Tuesday Evening, 
June 6, 1939, all of the Defendants above named pub­
licly expressed themselves to the effect that the said 
swimming pool could not be used by your Orators or 
other persons of color.

10. Your Orators aver that there are Three 
Thousand (3000) residents and citizens of color in the 
City of Clairton who are suffering irreparable injury 
by reason of the action of the above named Defendants, 
their agents, servants and employees.

11. By reason of the unlawful conduct of the 
above named Defendants, and the unlawful instructions



Bill of Complaint.
5 a

issued by the said above named Defendants, as afore­
said, and the unlawful execution of said unlawful in­
structions issued by the agents, servants and employees 
of the said Defendant, your Orators and all other per­
sons of color, citizens and residents of the City of 
Clairton, Defendant, have suffered and will suffer ir­
reparable injury in that they are denied their lawful 
rights as citizens of the United States of America, the 
Commonwealth of Pennsylvania and the City of Clair­
ton.

W h erefore , your Orators, by reason of the prem­
ises, need equitable relief and pray:

1. That a preliminary injunction be issued by 
your Honorable Court directed to the said J o h n  J . 
M u l l e n , Mayor; J o h n  W atk o , J o h n  M iller , C. D. 
J ackson  and W arren W . S ch erer , Councilmen; and 
the C it y  of Cla ir to n , its agents servants and em­
ployees, enjoining and restraining them, and every of 
them, from interfering in any manner with the free 
use and enjoyment of the facilities of the said swim­
ming pool by the Plaintiffs, your Orators, as well as by 
all other persons of color, citizens of the said City of 
Clairton, at all times agreeable to the rules and regula­
tions, as provided for by Ordinance, without discrimina­
tion against the Plaintiffs, your Orators, and all other 
persons of color, citizens and residents of the said City 
of Clairton, on account of race or color; and

2. That a hearing upon the matters set forth in 
the foregoing Bill of Complaint be fixed for the 23rd 
day of June, 1939, at 8:30 o ’clock, A. M., E. S. T. or



Bill, of Complaint.
6 a

as soon thereafter as suits the. convenience of the Court 
for the purpose of taking testimony in connection with 
the allegations set forth in the foregoing Bill of Com­
plaint and pass upon the matters therein contained; 
and

3. That a preliminary injunction be granted un­
til the hearing is had for a permanent injunction; and

4. For such other and further relief as to your 
Honors shall seem meet and the circumstances shall 
demand.

A nd  Yoire Orators W il l  E ver  P r a y , E t c .

J oseph  A. R an dall , M. D.
C harles  P. H a y es .

Commonwealth of Pennsylvania,)
v  gg •

County of Allegheny. ^

Personally appeared before me, the undersigned 
authority, a Notary Public in and for the above Coun­
ty and Commonwealth, J oseph  A. R an dall  and 
C harles  P. H ayes , the Orators herein, who, being duly 
sworn according to law, depose and say that the state­
ments set forth in the foregoing Bill or Complaint 
are true and correct.

J oseph  A. R a n d a ll , M. D.
C harles P. H ay es .

Sworn to and subscribed before me this 13th day 
of June, 1939.

M ildred  M . H a n e y ,
( s e a l )  Notary Public.
My commission expires January 24, 1941,



Bill of Complaint.
7 a

EXHIBIT “ A .”

Clairton, Pa.
June 6, 1939.

Mayor Mullen and Members 
of the City Council 

Municipal Building 
Clairton, Pa.

Bear Sirs:

The executive council of the Negro Civil and Pro­
tective League met and rediscussed the swimming 
pool question. As you know it was proven in court 
by your representatives, that we have never been re­
fused admittance to the pool because of our color; and 
that according to the law we have a right to swim in our 
municipal pool when we please and with whom we 
please; but since the citizens of our community have 
been misinformed from the beginning on this issue, 
through false propaganda, since the true facts have 
never been made known to the public; since our local 
newspapers have not been fair in giving both sides of 
the story; since you say there is so much race hatred 
and animosity between the two groups and realizing 
that some innocent person may sacrifice his life; since 
you as elected representatives have proven that you 
do not believe in racial equality, either mentally, phys­
ically, socially or economically; since you five men 
have all gone on record as endorsing the construction 
of a colored swimming pool; since three of you have 
already vetoed the Low Cost Housing Project, on the 
grounds that it would increase taxes; since our city



8 a
Bill of Complaint.

solicitor offered the high school pool as a compromise 
and realizing this would not be healthy during the hot 
summer months ; and since you did not see fit to call 
a special meeting to settle this question, we as an un­
derprivileged group of taxpayers, voters and respecta­
ble citizens are asking you for our already constructed 
municipal swimming pool two days in every week and 
one Sunday in every month.

We respectfully request an answer tonight.
(signed) J oseph  A. R an d a ll , Pres. 
(signed) C h arles  P. H ayes , Sec.

ORDER OP COURT.

A nd  N ow , to-wit, this 15th day of June, 1939, the 
within Bill of Complaint having been filed, together 
with injunction affidavits, which said injunction affi­
davits have been submitted to the Court, and upon con­
sideration thereof, it is ordered, adjudged and decreed 
the hearing for an injunction is fixed for Friday, the 
23 day of June, 1939, at 8:30 o ’clock, A. M., Eastern 
Standard Time.

By t h e  C o u rt .
R. H. S.



Transcript of Testimony.
9 a

Transcript o f Testim ony.

IN THE COURT OF COMMON PLEAS 
of A l l e g h e n y  C o u n t y , P e n n sy lv a n ia .

J oseph  A. R an d a ll  and C h a r l e s " 
P. H a y s , on behalf of them­
selves and all other persons of 
color, citizens and residents of 
the City of Clairton, Allegheny 
County, Pennsylvania, 

vs.
C it y  op Cla ir to n , Allegheny 

County, Penna., J o h n  J . M u l ­
l e n , Mayor; J o h n  W atk o , 
J o h n  M il le r , C. D. J ac k so n , 
and W arren  W . S ch erer , 
Members of City Council.

No. 2573 July 
Term, 1939.

Pittsburgh, Pa., 
June 30, 1939.

C oram  : H o n . R a l p h  H. S m it h , J.

C ou n sel  :

R. R obert A verbach , E sq., for Petitioner.
J o h n  A . M e t z , E sq., for Defendants.

Reported by:
R oy F. W alters .

June 30th, 1939.

The Court:
Do I understand that the first, second and third 

paragraphs of bill of complaint are admitted?
Mr. Metz:

That is right.



Dr. Joseph Randall— Direct.
1 0  a

Testim ony o f D r. Joseph Randall.

Dr. Joseph Randall, a witness for the petitioner, 
having been duly sworn, testified as follows:

Mr. Averbach:
Q. Doctor, what is your full name?
A. Joseph A. Randall.
Q. Where do you live?
A. Clairton.
Q. I believe you are a practicing physician?
A. That is right.
Q. And a graduate of what school ?
A. Howard University.
Q. How long have you lived in Clairton ?
A. For four years.
Q. Doctor, were you at a meeting held by the 

Mayor and Council on June 6th, of this year?
A. I was.
Q. And was there a discussion at that meeting 

with reference to the use of the swimming pool by 
colored people of Clairton?

A. There was.
Q. Did you have any conversations with either 

the Mayor or any of the councilmen?
A. I presented them a letter.
Q. Did you talk to the Mayor ?
A. I did.
Q. What discussion did you have with the Mayor 

that evening?
A. Well, the answer he gave to the request we 

made was that if we used the pool the whites wouldn’t.
Q. The answer you gave was what?



Dr. Joseph Randall— Direct.
1 1 a

A. The answer he gave me to my request was if 
we used the pool the whites wouldn’t.

Q. Was the purpose of that meeting to determine 
whether or not the colored people were going to use 
the pool that night1? I mean during the season?

A. No. We presented a letter at a regular coun­
cil meeting. They called a special meeting the follow­
ing Thursday with the remark they would give me an 
answer writing.

Q. You were not at the special meeting?
A. I was not invited.
Q. At the regular meeting of June 6th did the 

Mayor give any statement as to whether or not the 
colored people could use the pool?

The Court:
Can we stipulate that the letter the Doctor 

presented is Exhibit “ A ,”  attached to the bill of 
complaint, not admitting any of the allegations, 
but that it is a copy of the paper he presented 
that night?
Mr. Metz:

That is admitted. Yes, sir.
Q. At that meeting was Councilman Watko pres­

ent?
A. Yes.
Q. Was Councilman John Miller present?
A. Yes.
Q. Was Councilman C. D. Jackson present?
A. Yes.
Q. Was Councilman Warren W. Scherer pres­

ent?



Dr. Joseph Randall— Direct.
1 2  a

A. He was.
Q. And John J. Mullen, the Mayor ?
A. That is right.
Q. Did anybody at that meeting make any state­

ment with reference to the colored people using the 
pool?

A. They did.
Q. Who made the statement?
A. The Mayor made the first statement that if 

the negroes of Clairton used the pool he would have to 
close it as the whites would not use it, and the Council- 
men verified it.

Q. What Councilmen?
A. The five of them.
Q. They all made that statement?
A. Yes.
Q. Has any request been made by the colored 

people through you or any other representative prior 
to this time for the use of the pool?

A. There has.
Q. When?
A. The first, I understand, it was in 1931.
Mr. Mete:

I ask that this be stricken out as hearsay.
The Court:

Granted.
Q. Was there any request made in 1938?
A. There was.
Q. Did you make a request ?
A. I did, for a picnic.
Q. And to whom did you make such request ?



Dr. Joseph Randall— Direct.
13 a

A. To the Mayor and Council.
Q. Where was the request made!
A. In Council Chambers.
Q. At that time what kind of a request did you 

make to use the pool?
A. The organization was planning a picnic and 

we requested the swimming pool the day we had the 
park for the picnic.

Q. You wanted the pool for that one day!
A. That is right.
Q. Did you speak to the Mayor that day?
A. Yes. y
Q. Do you recall when that was ?
A. June, 1938.
Q. What did the Mayor tell you then?
A. First he told I would have to see the Park 

Commissioner.
Q. Who is the Park Commission?
A. I never found out who they were.
Q. Do you know now?
A. I could not say definitely.
Q. Did he refuse to allow you to use it at that 

time?
A. He sent me to the Park Commissioner. I 

went to Mr. P. G. Miller. Whether or not he is on the 
Park Commission I don’t know. They told me that 
was a matter I had to go back to Council with. I went 
back to Council with the same request to have the pool 
for the one day for the picnic. At this particular 
meeting the Mayor and five Councilmen turned the mat­
ter over to Mr. Watko, who is in charge of the park.



Dr. Joseph Randall— Direct.
14 a

That evening I stayed until eleven-thirty until Mr. 
Watko was leaving. I said, “ Now, Mr. Watko, since 
it is up to you, can we have.the pool for the picnic?”  
He said, “ Yes.”  I left there and the next day I saw 
Mr. Jackson, a Councilman, and asked him how did he 
feel and I assured him we would act decent while we 
had the pool. He said, “ You cannot get the pool.”  I 
said, “ What do you mean?”  He said, “ We met five 
minutes after you left and decided not to give it to 
you. ’ ’

Q. Mr.. Jackson told you that?
A. Yes, sir, and I went back to Council at the next 

meeting and I asked the Mayor what was the reason for 
rejecting us and he said he had not rejected us and had 
not taken any action. I said, “ Someone is telling a 
falsehood for someone in Council told me you had re­
fused the use of the pool.”  Mr. Jackson spoke up and 
told him and said, “ I didn’t know there were any 
secrets in Council Chambers.”

Q. Do you know when this pool was built?
A. Not exactly; I have an idea.
Q. Do you know how it was built ?
A. As I understand it, a bond issue.
Q. Do you have the City Ordinance that was 

passed by Clairton ?
A. I don’t have it with me.
Q. That was passed for the bonds ?
A. I don’t have it with me.
Q. Do you know whether there were bonds issued 

for the payment of this pool?
Mr. Metz:

Objected to as not being the best evidence.



15 a
Dr. Joseph Randall— Cross, Re-direct.

The Court:
There is no doubt about it, is there!

Q. Did you ever see the City Ordinance!

The Court:
There is no doubt about it, is there! Why ar­

gue about it! That was admitted in the third para­
graph, that it was constructed from the proceeds 
of bonds issued by the said City of Clairton, said 
bonds being issued and under proper authority.

Cross Examination:

Mr. Metz:
Q. When was it you say you asked for the use of 

the pool!
A. For one day!
Q. Yes.
A. It was at a Council meeting of June 6th.
Q. Of last year!
A. 1938.
Q. You wanted the exclusive use of it for that 

day!
A. We wanted it for the picnic.
Q. You wanted the exclusive use of it for that 

day?
A. That is right.
Re-direct Examination:

Mr. Averbach:
Q. Did you have any objection at any time if white 

people came in with you?
A. Not at all.



Testim ony o f Charles W ad e.

Charles Wade, a witness on behalf of the petition­
er, having been duly sworn, testified as follows:
Mr. Averbach:

Q. What is your full name ?
A. Charles Wade.
Q. And what do you do?
A. I go to school.
Q. I mean, do you go to school or work?
A. I go to school.
Q. What school?
A. Clairton High School.
Q. What year in High School are you?
A. Eleventh.
Q. You are in the eleventh grade?
A. Yes.
Q. Where do you live ?
A. 204 Mitchell Avenue.
Q. Clairton ?
A. Clairton.
Q. Did you purchase a ticket of admission to the 

swimming pool in Clairton?
A . Yes.
Q. When ?
A. It was on a June day. I don’t know what date. 
Q. What year?
A. 1938.
Q. Was anybody with you when you purchased 

the ticket?
A. Yes. " '" " '/ .A '.

16. a
Charles Wade— Direct.



Charles Wade— Direct.
17 a

Q. Who was with you?
A. Mr. Pettis.
Q. Do you know what day of the week it was?
A. I am not sure. I think it was a Wednes­

day.
Q. How much did you pay for this ticket?
A. Twenty-five cents.
Q. Who gave you the ticket?
A. The cashier, Miss Coleman.
Q. Is she in the room?
A. No.
Q. Now, after you purchased the ticket what hap­

pened!
A. She gave me the ticket.
Q. How much did the ticket cost you?
A. Twenty-five cents.
Q. All right. How much money did you put 

down?
A. A dollar bill.
Q. You got a ticket and then tell us what hap­

pened?
A. I got the ticket and I started back out to get 

my suit in the car. She said, “ Hold on. I am not 
allowed to sell tickets to you people.”  I said, “ All 
right then. There are no hard feelings,”  and she re­
funded my money and I went on.

Q-. After she sold you the ticket she called you 
back and said, “ I am not allowed to sell you a ticket”  ?

A. Yes.
Q. And you gave her the ticket back and she gave 

you back the money?
A. Yes.



Cross Examination:

Mr. Metz:
Q. None of the Councilmen were there?
A. I haven ’t seen any.
Q. The Mayor wasn’t there?
A. No, sir.

Re-direct Examination:

Mr. Averbach: ..........
Q. Do yon swim in the school pool?
A. Yes, sir.
Q. Has1 there been any trouble about that ?
A. N o; in school we all go together swimming and 

playing ball.
Q. I believe you are on the swimming team at 

Clairton High School?
A. I am not on the swimming team but I am on 

the Football Team.

Re-cross Examination:

Mr. Metz:
Q. The only person you had any dealings with 

there was some woman who sold you the ticket?
A. That is correct.
Q. She doesn’t work there any more?
A. I don’t know.
Q. Who sent you to buy the ticket?
A. Nobody. I went to get it for myself.
Q. Didn’t anybody pay you to go and get it?
A. No. I seen in the paper the week before that 

the pool was open and you could go to swimming and 
I went up there that night. ...........

18 a

Charles Wade— Cross, Re-direct, Re-cross.



W. A. Pettis—Direct.
19 a

Q. Did you talk to Dr. Randall before you went
down?

A. I talk to him all the time.
Q. Did he suggest you buying a ticket and tak­

ing it back to him?
A. Oh, no.

Testim ony o f W . A . Pettis.

W. A. Pettis, a witness on behalf of the petitioner, 
having been duly sworn, testified as follows:

Direct Examination:

Mr. Averbach:
Q. What is your full name, please!
A. William A. Pettis.
Q. And where do you live, Mr. Pettis?
A. Clairton.
Q. How long have you lived in Clairton?
A. Thirty-four years, or more.
Q. Do you know Charles Wade, the young man 

who just got off the stand?
A. Yes, sir.
Q. Were you with him at the pool the day he 

purchased the ticket?
A. Yes.
Q. Did he buy a ticket?
A. He did.
Q. What happened after he purchased the ticket?
A. He started out to get his suit in the car and 

the lady called him back and she said, “ Give me that 
ticket back, we are not allowed to sell you a ticket.”



W. A. Pettis—Cross.
20 a.

He said, “ There are no hard feelings” , and he handed 
it hack to her and she gave him the change.

Cross Examination:

Mr. Metz:
Q. What were you doing down there?
A. I carried them over there.
Q. You mean you took them over in an automo­

bile?
A. Yes. They asked me to take them over there. 
Q. How far away was your car parked?
A. It was outside of the gate.
Q. You just took them over there. Did you go in 

when he bought the ticket?
A. I went in with him to see—I just went in with

him.
Q. Were you going swimming?
A. No, not that day.
Q. He talked to only this girl?
A. That is all.
Q. Now, after she sold him a ticket what did she 

say to him that you heard, if anything?
A. She called him back and said, “ Give me that 

ticket back, I am not allowed to sell you a ticket.”
Q. Did you hear her say that?
A. Yes.
Q. How far away were you?
A. Not more than ten feet.
Q. And he gave it back?
A. Y es.............
Q. None of the .Gouncilmen were there?



John J. Mullen— Direct.
21a

A. I didn’t see them.
Q. And the Mayor wasn’t there? 
A. I didn ’t see him.

Testim ony o f John J. Mullen.

John J. Mullen, having been called for Cross Ex­
amination, and having been duly sworn, testified as 
follows:

Mr. Averbach:
Q. You are Mayor of the City of Clairton?
A. That is right.
Q. Mayor, do you remember the meeting of June 

6th, of this year?
A. I don’t remember the exact date, but 1 re­

member the night Dr. Randall came that he was talk­
ing about. The night Dr, Randall presented a letter.

Q. Mayor, was there some discussion there in 
reference to the use of the swimming pool that night?

A. Yes, sir.
Q. Will you state whether or not yon said that 

night, specifically, “ I appreciate the feelings of the 
colored people but I will go on record as opposing the 
use of the pool by the colored people because it would 
mean a loss of money to the city?”  Did you make that 
statement that night?

A. Substantially, yes.
Q. So that, Mayor, your reasons for refusing to 

allow the colored people to use it is because you fear 
it will mean a loss of revenue?



John J. Mullen— Direct.
22 a

Mr. Metz:
That is objected to. The witness has not tes­

tified they refused to allow them to use it. There 
is no testimony that they have.

The Court:
We think technically that is true.

Mr. Metz:
That involves a statement he has not yet 

made.
Mr. Averbach:

Except he admitted he made a statement that 
night.

Mr. Metz:
He said he was on record as opposing it but 

not that he was going to do it.
Q. Requests were made to you from time to time 

by Dr. Randall and other persons of color in the City 
of Clairton for the use of the pool?

A. Dr. Randall on two specific occasions—that 
night he refers to and the time they asked for the use 
of it at the picnic.

Q. At that time he was accompanied by other 
colored persons?

A. At which time?
Q. The last time when he presented the letter 

were other people with him?
A. I think not. There was a lady there. She 

said not on his behalf, a colored lady. She said she was 
not there with him and was not affiliated with him 
or his committee in any way.



23 a
John J. Mullen— Direct.

Q. She was there also for the use of the pool?
A. No, she didn’t say that.
Q. What was she there for!
A. She didn’t say. She just, was there. She did 

say she thought she would have her personal taxes 
back for pool purposes.

Q. That is the lady that wanted her tax money 
back that she paid in for the pool?

A. She mentioned something along that line, but 
she didn’t ask for the use of the pool.

Q. On the two occasions that Dr. Randall talked 
to you did you say he and the other colored people 
could use the pool?

A. No. I never said that.
Q. As a matter of fact, did you refuse them the 

use of the pool?
A. No.
Q. You never refused them the use of the pool?
A. No.
Q. Did the cashier at the pool have instructions 

either from you or from the councilmen or park com­
mission, with your knowledge, and consent, not to be 
allowed to sell colored people tickets?

A. No, she didn’t.
Q. Tou have never refused to allow colored peo­

ple the use of the pool?
A. Never.
Q. What did you mean when you made the state­

ment on the particular night when Dr. Randall was 
there that you were going on record as opposing the 
use of the pool by the colored people? What did you 
mean by that statement?



John J. Mullen— Direct.
24 a

A. Just what it says.
Q. Explain to us what it means.
A. What could you take from it?
Q. I take from it you would not allow colored 

people to use it.
A. I did not say I would not allow. I said I would 

oppose it because the City of Clairton has an invest­
ment there which would become a white elephant if 
we would allow them in. In other words, our patron­
age is mostly from out of town.

Q. Now, Mayor, you go on record as opposing 
them using it. Is that right ?

A. I think they should not use it, yes.
Q. You think they should not use it?
A. That is right.
Q. Have you any idea of the colored population 

of Clairton ?
A. Roughly, between 2,500 and 3,000.
Q. And they all pay taxes either in the form of 

rent or for property? Is that right?
A. I think so.
Q. The pool was built by public money from a 

bond sale by the City of Clairton?
A. That is right.
Q. And they are included in the taxes paid by 

the people of Clairton?
A. That is right.
Q. So that the pool is being paid for by the peo­

ple in the City of Clairton?
A. That is right.
Q. Will you state again whether or not you 

oppose the use of the pool by the colored people?

i



John J. Mullen—Direct.
25 a

A. As far as trying to stop them from using 
it I never did or never will issue any orders, but I 
am opposed to them using the pool, if that is what you 
want to know.

Q. As far as they are concerned, that means they 
cannot use the pool, doesn’t it?

A. I would not say that.
Q. Well, can they use the pool?
Mr. Metz:

The Mayor is telling you his personal opinion.
Mr. Averbach:

We cannot allow the Mayor to rely on his
personal opinion. He is the chief administrative
officer.
Q. By the way, these bonds were sold to white 

and colored both?
A. I really don’t know.
Q. I mean, there was no distinction when they

were offered for public sale?
A. No, that is right.
Q. How were the bonds sold, through a bond­

ing house, or how?
A. I really could not say, but it is customary 

to sell them that way.
Q. So far as you are concerned, you object to 

the colored people using the pool. Is that right?
A. That is right. Yes.
Q. And will you permit the colored people to 

use the pool?
A. Well, I don’t know that I have the right to 

prevent them if we are ordered to do so.



John J. Mullen—Direct.
26 a

Q. Yon are Mayor of the City and chief execu­
tive. Is that right?

A. Yes.
Q. There is no ordinance forbidding the use of 

the poo] by any person regardless of color. Is that 
right ?

A. To the best of my knowledge there is not.
Q. There is not any ordinance is there?
A. There could not be.
Q. The police take instructions from you?
A. They take orders from me, yes.
Q. Do the employees at the swimming pool take 

instructions from you?
A. Not from me.
Q. From whom do they take them?
A. I would say from Mr. Watko. It is his de­

partment.
Q. What is Mr. Watko?
A. Director of Parks and Public Property.
Q. Is that an appointive or elective position?
A. Elective.
Q. Elective by the people?
A. That is right.
Q. Do you recall in June, of 1938, when Dr. Ran­

dall came to you with reference to the use of the pool 
on a particular day for a picnic?

A. I don’t recall the exact date, but I do recall 
the evening the doctor refers to, yes.

Q. And do you recall at that time when he asked 
for a date that you had agreed to it?

A. No, he is mistaken there. We never agreed 
to that.



John J. Mullen— Direct.
27.a

Q. Wait a minute. Then, did you refuse it?
A. No. We took no action at all. We discussed 

it and decided we had no authority to give the park 
or any part to any particular group at any particular 
time, and that is where she stood.

Q. Isn’t it a fact that at that time you agreed to 
allow the colored people to use it and that included 
the pool, and that later you changed your mind?
- A. No.

Q. You say that Mr. WMtko’s position is elec­
tive. Is that right?

A. As a Councilman, well, he is in charge of 
parks. In other words, they are elected as Council- 
men and various departments are assigned to various 
Councilmen.

Q. By whom?
A. By Council at an organization meeting they 

get together and decide which fellow should handle 
each department.

Q. Do I understand from you that Mr. Watko 
has exclusive jurisdiction over the park?

A. Well, his recommendations are usually car­
ried out by Council.

Q. To whom does he make recommendations?
A. To Council.
Q. Does he have authority over you as to what 

goes on in the park? Is he superior to you?
A. Yes.



John Watko called. 
Michael E. War go, Called.

Testim ony of John W atk o .

John Watko, called by petitioner for cross exam­
ination, but be was not present in court.

Testim ony o f M ichael E . W a rg o .

Michael E. Wargo, called by petitioner for cross 
examination.

Mr. Metz;
I object to this man being called for cross 

examination as be is not a defendant.

The Court:
If be is not a defendant you cannot call him. 

Of course, you can call him but not for cross ex­
amination.

Mr. Averbach:
That is our case, Your Honor.

Mr. Metz:
I want to offer one thing in evidence. Coun­

sel for defendants offers in evidence the follow­
ing portion of Exhibit “ A ” :

“ As you know it was proven in court by your 
representatives, that we have never been refused 
admittance to the pool because of our color.”
Mr. Averbach:

I now want to amend the bill to include the use 
of the park.
Mr. Metz:

You cannot amend a bill after a bearing.



Certificate.
29 a

Mr. Averbach:
I don’t want to draw a new bill, but while 

the Mayor is here I would like to have him under­
stand. In an organization called the Girls Re­
serve most of the girls are white girls. In the 
group three colored girls were in the crowd. They 
have a lodge in the park rented by this Girls 
Reserve organization and Mr. Watko came up to 
them and told them he didn’t know there were 
colored girls in it and they would have to get out 
and he put them out. It seems to me the offi­
cials of Clairton might mean well but they are 
going too far with this. This is a public place 
in the park where the pool is. Of course, I may 
have to present a bill.

The Court:
I don’t think you need present a bill. You 

certainly cannot amend this one after an order is 
signed, but what we say today applies equally to 
the park and I think everybody here knows that.

Certificate.

This is to certify that the proceedings are con­
tained fully and accurately in the notes taken by me 
at the trial of the above cause and that this tran­
script is a true copy of the same.

Roy F. W alters, 
Reporter.



Final Order of Court.
30 a

Final Order o f Court.

(Dated June 30, 1939.)
A nd Now, to wit, this 30th day of June, 1939, the 

within matter having come up for hearing, testimony 
taken and upon consideration thereof, it is hereby or­
dered, adjudged and decreed that the City of Clair- 
ton; John J. Mullen, Mayor of the City of Clairton; 
John Watko, John Miller, C. D. Jackson and Warren 
W. Scherer, Councilmen of the said City of Clairton; 
are hereby enjoined and restrained, and all persons, 
their servants, agents or employees, employed by the 
City of Clairton are enjoined and restrained from 
interfering with the Plaintiffs or any citizens or resi­
dents by reason of race or color of the City of Clair­
ton in the free use and enjoyment of the facilities of 
the Clairton Park Swimming Pool, and the Defend­
ants, and any other persons, their servants, agents or 
employees, of the City of Clairton, are restrained and 
enjoined from discriminating as regards color or race 
in the free use an enjoyment of the facilities of the 
Clairton Park Swimming Pool.

By t h e  C ourt ,
R. N. S.

Eo die, exception noted to defendants and bill of 
exception sealed.

R a l p h  H. S m it h , ( sea l)  
Judge.



Adjudication.
3 1 a

Adjudication.

(Filed Sep. 19,1939.)
S m i t h , J .

This case comes before the Court upon a bill of 
complaint tiled by Joseph A. Randall and Charles P. 
Hayes, on behalf of themselves and all other persons 
of color, citizens and residents of the City of Clair- 
ton, Allegheny County, Pennsylvania, alleging that the 
City of Clairton owns, operates and maintains a swim­
ming pool constructed out of the proceeds of bonds 
sold to the public and backed by the credit of the City 
of Clairton; that in its operation the pool is ostensibly 
opened to the general public upon payment of a fixed 
admission charge; that in its actual operation the City 
of Clairton, acting through its Mayor, John J. Mullen, 
and John Watko, John Miller, C. D. Jackson and War­
ren W. Scherer, Members of City Council, has in the 
past discriminated against persons of color and has 
announced that as a public policy it is the intent of the 
officials of the City of Clairton to continue to discrim­
inate against persons of color; that such discrimination 
is contrary to the law of the Commonwealth of Penn­
sylvania; and that the petitioners are entitled to have 
the prayer of their petition granted, which asks that 
an injunction be issued against said officials restrain­
ing them from such discrimination.

A preliminary objection to the bill of complaint 
was filed on behalf of the defendants, alleging that an 
adequate remedy existed at law and that a court of 
equity was without jurisdiction.



Adjudication.
32 v

A public hearing was held June 30, 1939, and tes­
timony taken, as a result of which the Chancellor makes 
the following findings of fact:

FINDINGS OF FACT.

1. That Joseph A. Randall and Charles P. Hayes 
are persons of color, citizens of the United States of 
America and of the Commonwealth of Pennsylvania, 
residents of the City of Clairton, Allegheny County, 
and bring this bill on their own behalf and on behalf 
of the approximately 2,500 persons of the colored race 
resident in Clairton.

2. That the defendants above named are the City 
of Clairton, a municipality created by an act of the 
legislature; John J. Mullen, a citizen of said city and 
the duly elected and qualified Mayor thereof; John 
Watko, John Miller, C. D. Jackson and Warren W. 
Scherer, each of them citizens of said city and each of 
them a duly elected and qualified member of the said 
City Council.

3. That the City of Clairton, in the exercise of 
proper legal authority, authorized the sale of bonds to 
the public, the proceeds of which were to be used for 
the construction of a swimming pool by said city, and 
that pursuant to such authorization bonds were of­
fered for sale and were sold, and the proceeds thereof 
used by the City of Clairton for the construction of a 
swimming pool, the principal and interest of said bonds 
being paid out of the proceeds of the taxes levied by 
the City of Clairton upon the citizens thereof, among 
whom are the petitioners.



Adjudication.

4. That the City of Clairton maintains and oper­
ates said swimming pool in Clairton Park, a public 
park maintained by the City of Clairton.

5. That for the use of said swimming pool facil­
ities the City .of Clairton has a uniform charge to be 
paid by individual members of the public who desire 
to enjoy the pool and its facilities.

6. That in the organization of the Council of the 
City of Clairton each of the members thereof is assign­
ed chairmanship of one of the sub-committees; that as 
such chairman he is responsible to the Council for the 
work assigned to that committee, and as such chairman 
makes recommendations to the Council from time to 
time regarding matters of public policy and public 
work; and that at the time covered by the matters here 
complained of John Watko was Director of Parks and 
Public Property.

7. That one Charles Wade, a student of Clairton 
High School, and a member of the negro race, in June, 
of 1938, went to the swimming pool, purchased a ticket 
from a cashier, a Miss Coleman, and was about to pre­
sent ticket for admission when recalled by the cashier, 
who informed him that she was “ not allowed to sell 
tickets to you people, ’ ’ and that she recalled the ticket 
and refunded the money.

8. That under the date of June 6, 1939, Joseph A. 
Eandall and Charles P. Hayes, two of the petitioners, 
as President and Secretary, respectively, of the Negro 
Civic and Protective League, addressed to the Mayor



34 a
Adjudication.

and members of City Council of the City of Clairton 
a communication, attached to the bill of complaint, 
made a part thereof, and marked for the purpose of 
identification Exhibit “ A, ”  which read as follow^:

“ Clairton, Pa., June 6, 1939.

Mayor Mullen and Members 
of the City Council 
Municipal Building 
Clairton, Pa.

Bear Sirs:

The executive council of the Negro Civic and 
Protective League met and rediscussed the swim­
ming pool question. As you know it was proven 
in court by your representatives, that we have 
never been refused admittance to the pool because 
of our color; and that according to the law we have 
a right to swim in our municipal pool when we 
please and with whom we please; but since the 
citizens of our community have been misinformed 
from the beginning on this issue, through false 
propaganda, since the true facts have never been 
made known to the public; since our local news­
papers have not been fair in giving both sides of 
the story; since you say there is so much race 
hatred and animosity between the two groups and 
realizing that some innocent person may sacri­
fice his life; since you as elected representatives 
have proven that you do not believe in racial equal­
ity, either mentally, physically, socially or eco­



Adjudication.
35 a

nomically; since you five men have all gone on rec­
ord as endorsing the construction of a colored 
swimming pool; since three of you have already 
vetoed the low cost housing project, on the grounds 
that it would increase taxes; since our city solic­
itor offered the high school as a compromise and 
realizing this would not be healthy during the hot 
summer months; and since you did not see fit to 
call a special meeting to settle this question, we as 
an underprivileged group of taxpayers, voters and 
respectable citizens are asking you for our already 
constructed municipal swimming pool two days in 
every week and one Sunday in every month.

“ We respectfully request an answer tonight.

Yours very truly,

(signed) Joseph A. Randall, 
Pres.

(signed) C h arles  P. H ayes , 
Sec.”

9. That under date of June 6, 1939, the letter 
from Joseph A. Randall and Charles P. Hayes, re­
ferred to in finding of fact Number 8 was presented at 
a regular meeting of the City Council of the City of 
Clairton.

10. That at the meeting of the City Council of the 
City of Clairton on June 6, 1939, there were present 
John J. Mullen, Mayor of the City of Clairton, and 
the following members of Council: John Watko, John 
Miller, C. D. Jackson and Warren W. Scherer.



Adjudication.
36 a

11. That at the meeting of the City Council of 
the City of Clairton on June 6, 1939, John J. Mullen, 
Mayor of the City of Clairton, and each of the Coun- 
cilmen present at said meeting, publicly stated that if 
the negroes of Clairton used the pool it would be nec­
essary to close the pool as the whites would not use it.

12. That John J. Mullen, Mayor of the City of 
Clairton, at the meeting of June 6, 1939, publicly op­
posed the use of the pool by the colored people, alleg­
ing it would result in a loss of money to the City of 
Clairton, which opposition to the use of the pool by 
the colored people was repeated by the Mayor upon the 
stand in court.

13. That persons of color have been denied the use 
of the swimming pool and are not using the same by 
reason of such denial.

14. That students of the white and the colored 
races in the public schools of the City of Clairton use 
the facilities of the swimming pool of said school at 
the same time and engage in athletic contests togeth­
er.

15. That in the maintenance and operation of the 
swimming pool in the City of Clairton the City of 
Clairton, acting through its Mayor and the members 
of City Council, the defendants herein named, have 
denied the use of said pool to persons of the colored 
race by reason of their color.

CONCLUSIONS OF LAW.

1. That equity has jurisdiction because there is 
no adequate remedy at law and the refusal to take jur­



Adjudication.
37 a

isdiction would result in a great number of suits and 
multifarious litigation regarding the same identical is­
sue.

2. That equity has jurisdiction to enjoin repeat­
ed, continued, or anticipated violations of the law by 
the officials of the City of Clairton where their inten­
tion so to violate the law has been clearly and publicly 
made known in a declaration of policy in a formal meet­
ing of the City Council.

3. That Joseph A. Randall, Charles P. Haves and 
the other petitioners, members of the colored race, have 
been subjected to discrimination in the use of the pub­
licly owned, operated and maintained facilities of the 
swimming pool of the City of Clairton by reason of 
their color, which is a denial of equality before the 
law and in violation of the Act of June 11th, 1935, P. L. 
297, known as the Equal Rights Act.

DISCUSSION.

Notice of an appeal from the granting of a pre­
liminary injunction having been received, this adju­
dication setting forth the findings of fact and conclu­
sions of law is filed by the Chancellor in support of and 
explaining the legal necessity for the order from which 
the appeal was taken.



v/







-





2nd Civil No. 12593 
In the District Court of Appeal

SECOND APPELLATE DISTRICT

State of California
Charles Stone, W illiam J. Brock,

W. H. H arrison, James Price, Fred­
erick M. James, Jr., Frederick D.
Sm ith ,

Petitioners and Appellants, 
vs.

Board of D irectors of the City o f  
Pasadena, a municipal corporation; and 
Edward O. Nay, M ilton S. Brenner,
Robert E. Dawson, Carl G. W op- 
schall, A lbert I. Stewart, C. L.
Schuler and Charles C. H amill, 
constituting the members of said Board;
W. H. N icholas, Superintendent of 
Parks of the City of Pasadena; C. W.
Koiner. City Manager of the City of 
Pasadena; Frank H ale, John Doe 
and R ichard Roe,

Defendants and Respondents.

APPEAL FROM THE SUPERIOR COURT o f  LOS ANGELES CO. 

HON. CLEMENT D. NYE, JUDGE.

A P P E L L A N T S’ OPENING BRIEF.

T homas L. Griffith , Jr.,
205 California Bank Bldg., Vernon and Central 

Los Angeles, California,
Attorney for Petitioners and Appellants.





HHamaA





STATEMENT OE QUESTIONS INVOLVED.

I.
Whether or not the first amended petition for 

a writ of mandamus states a cause of action for 
a writ of mandamus, if not, does said first 
amended petition show, expressly or by every rea­
sonable inference, that petitioners are entitled to 
some relief, and if so, should the case be barred 
because of the particular relief sought by peti­
tioners, upon an objection to the introduction of 
any evidence on the ground that said petition 
does not state a cause of action?

II.
Whether or not an injunction is a plain, speedy 

and adequate remedy in the case at bar, and if 
so, does such a remedy in equity deprive peti­
tioners of the remedy of mandamus?

III.
After the introduction of evidence should the 

court, in the absence of any motion to exclude 
the evidence on the grounds that the first amended 
petition does not state a cause of action and 
that mandamus is not the proper remedy in the 
premises, render a judgment based on such a 
motion, where the evidence shows petitioners are 
entitled to such relief as the record presented 
will warrant and where the circumstances could 
not work any injustice.





TOPICAL INDEX.

Statement of Questions Involved..............................Preface

Statement of the Case.......................................................  2

Summary of First Amended Petition.............................  6

Points and Authorities.................   10

I.
The first amended petition states facts sufficient to 

constitute a cause of action-, and a cause of action 
for writ of mandamus...................................................  10

II.
Objections to the introduction of any evidence on the 

ground that the petition does not state a cause of 
action is determined on principles as would be a 
general demurrer .........................................................  35

III.
The remedy of injunction is not a plain, speedy and 

adequate remedy in the case at bar.............. ............  46

(a) In the absence of property rights or incidents
thereto, an injunction will not issue to enforce 
naked personal rights.......................................... 46

(b) The remedy of mandamus is a proper, appro­
priate and adequate remedy where the right is
a personal one.......................................................  56

IV.
The legal remedy of mandamus is not barred by an 

equitable remedy of injunction..................................  66

PAGE



V.
A  judgment based on a motion excluding evidence, 

after evidence has been received, on the ground that 
mandamus is not the proper remedy is in error 
where no motion has been made and the facts 
present a proper case for relief.... ...............................  68

Conclusion .... .....................................................................  74

ii.

PAGE

INDEX TO SUPPLEMENT.

PAGE FOLIO

Clerk’s Transcript ..............................................  1—  1

First Amended Petition for Writ of Man­
damus ..........................................................  1—  3

Judgment .......................................................... 12—  34

Minute Order, Dated July 24, 1939...........  11—  31

Reporter’s Transcript ..........................................  15—  43



111.

TABLE OF AUTHORITIES CITED.

Cases. page

Ah Chong, In re, 2 Fed. 732.........................................  14
Allie Bullock v. J. Arthur Wooding, N. J. Sup. Ct.,

No. 222, Sept. 11, 1939................................................  30
Angelus v. Sullivan, 246 Fed. 54...................................  47
Anglo California Trust Co. v. Kelley, 117 Cal. App.

692 .................................................................................. 43
Ashinsky v. Levenson, 256 Pa. 14, L. R. A. 1917D,

100 Atl. 491.................................................................... 55
Blois, In re, 179 Cal. 29....................................................  25
Bonitz v. Ahoskie School District No. 11, 154 N. C.

375, 70 S. E. 735.......................................................... 17
Buchanen v. Warley, 245 U. S. 60, 38 Sup. Ct. 16

....................................................................................14, 30
Burner v. American Bar Quartz Mining Co., 76 Cal.

App. 767 ........................................................................ 43
California Trust Co. v. Cohn, 214 Cal. 619...................  42
Carter v. Texas, 177 U. S. 442.......................................  14
Catania v. Board of Education, 37 Cal. App. 593.......  31
City of Los Angeles v. Industrial Acc. Com., 8 Cal.

App. (2d) 580, 47 Pac. (2d) 1096...........................  29
City of Stockton v. Frisbie and Latta, 93 Cal. App.

295.................................................................................... 23
Claybrook v. Owensboro, 16 Fed. 297...........................  17
Coger v. Northwestern Union Pac. Co., 37 la. 145... 18
Coker v. Simpson, 7 Cal. 340.........................................  46
Coon v. Biscailuz, 1 Cal. App. (2d) 346.....................  63
Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 738.............

........................................................................13, 16, 17, 31
Coulter v. Pool, 187 Cal. 181.........................................  34



IV.

Crawford v. School District, etc., 68 Ore. 388.............  30
Crocker v. Scott, 149 Cal. S75..............................47; 50, 53
Cushnie v. City of Los Angeles, County Clerk’s File 

No. 181306 ........................................................12, 14, 32
Cuyamaca Water Company v. Superior Court, 193 

Cal. 584 ..........................................................................  34
Dailey v. Superior Court, 112 Cal. 94............... 47, 50, 53
Davenport v. Cloverport, 72 Fed. 689...........................  17
Dove v. Independent School District, 41 Iowa 689.... 31
Draper v. Cambridge, 20 Ind. 268.................................. 16
Dufton v. Daniels, 190 Cal. 577...................................... 63
Eby v. School Trustees, 87 Cal. 166.............................  66
Elmore v. Lingley, 78 Cal. App. 461, 248 Pac. 706.....  37
Fairbairn v. Eaton, 6 Cal. App. (2d) 264...................  43
Foley, Ex parte, 172 Cal. 744........................................  25
Fletcher v. Tuttle, 151 111. 41.......................................... 46
Frank, Ex parte, 52 Cal. 606.......................................... 23
Goldsmith v. Board of Education, 63 Cal. App. 141.... 44 
Greenberg v. Western Turf Association, 140 Cal. 357

.................................................................................... 26, 27
Gustafson v. Byers, 105 Cal. App. 584.........................  43
Hall v. Bell, 143 Wis. 296................................................ 38
Hansen v. Hevener, 69 Cal. App. 337.......................... 39
Harden v. Ware, 2 Cal. Unrep. 72................................ 41
Harrison v. Colgan, 148 Cal. 69..................................... 26
Hayden, Ex parte, 147 Cal. 649........................................ 25
Hibernia Sav. & Loan Soc. v. Thornton, 117 Cal. 481,

49 Pac. 573......................................................................  37
Home Telephone Company v. Los Angeles, 227 U. S.

278....................................................................................  15

PAGE



V.

PAGE

Hutson V. Owl Drug Co., 79 Cal. App. 390.................  27
Jones v. Kehrlein, 49 Cal. App. 646...............................  27
Katz v. Walkinshaw, 141 Cal. 116.................................  47
Kelly v. Cameron, 72 Cal. App. 660...............................  43
Kentucky v. Powers, 201 U. S. 1.................................  14
Kern v. City Commissioners of the City of Newton,

147 Kan. 471.................................................................  32
Knowles v. Baldwin, 125 Cal. 224..................... ...........  41
Knox v. Bd. of Education, 45 Kan. 152.......................  20
Knox v. Board of Education, 11 L. R. A. 830...........  31
Lewis v. Henley, 2 Ind. 332...........................................  16
Lillie v. Weyl-Zuckerman & Co., 45 Cal. 607...............  43
Louisville v.. Vosworth, 230 Fed. 191.............................  16
Marshall v. Donovan, 10 Bush (K y.) 681...................  17
McCabe v. Atchison, Topeka & Santa Fe Railway 

Company, 235 U. S. 151, 35 Sup. Ct. 69, 59 L. Ed.
169 ............................................................................ 18, 30

McFarland v. Goins, 96 Miss. 67, 50 So. 493...............  17
Miller, Ex parte, 162 Cal. 696.......................................  25
Missouri ex rel. Gaines v. Missouri, 305 U. S. 337,

83 L. Ed. 207....................... 18, 20, 31, 53, 56, 57. 58
Moise v. City and County of San Francisco, 55 Cal.

App. 151 ........................................................... 47, 49, 53
Moore v. Douglas, 132 Cal. 399.....................................  37
Murray v. Gast Lithographic Co., 28 N. Y. S. 271

.....................................................................................47, 48
National Council J. O. U. v. State Council, 203 U. S.

151 ............................................................................47, 49
Neblett v. Neblett, 13 Cal. App. (2d) 304...................  42
Nessbit v. Superior Court, 214 Cal. 1.................. . 63



VI.

PAGE

Owen v. Partridge, 82 N. Y. S. 248.............................. 47

Pascoe v. Morrison, 219 Cal. 54.................................... 41
Patterson v. Board of Education, Trenton, 164 Atl.

892 ............................................................................ 30, 32
Patterson, Chester W., v. Board of Education of City

Trenton, 11 N. J. M. R. 179...................................... 30
Payne v. Treadwell, 16 Cal. 220...................................... 29
People v. Ah Sam, 41 Cal. 645...................................... 69
People v. Alton, 193 111. 309, 61 N. E. 1077, 56 L. R.

A. 95 ..............................................................................  17
People v. Board of Supervisors, 27 Cal. 655...............  44
People v. Detroit Board of Education, 18 Mich. 400 17
People v. Gallagher, 93 N. Y. 438..........  20
People v. Von Bradenthal, 8 Cal. App. (2d) 404____ 69
People ex rel. Bibb v. Alton, 179 111. 615............  31
People ex rel. Longress v. Board of Education, 101

111. 308, 40 Am. Rep. 196............................................ 31
Percy v. Powers, 51 N. J. L. 432, 17 Atl. 969, 14

Am. St. Rep. 693..........................................................  14
Pereria v. Wallace, 129 Cal. 397..................................... 44
Piper v. Big Pine School District, 193 Cal. 664...........

................................................................ ............. 20, 25, 30
Pluessy, Ex parte, 45 La. Ann. 80, 11 So. 948, 18

L. R. A. 639..................................................................  18
Poett v. Stearns, 28 Cal. 226............................................ 41
Powers v. Hitchcock, 129 Cal. 325................................ 47
Prioleau v. City of Los Angeles Board of Playground 

and Recreational Commissioners, L. A. County
Clerk’s File No. 285104..........................................21, 32

Prowd v. Gore, 57 Cal. App. 458.................................... 27

Raisch v. Board of Education, 81 Cal. 542....... 28, 29, 63
Raisch v. Warren, 18 Cal. App. 655...............................  54
Reynolds v. Board of Education, 66 Kan. 687........ ..... 31



Vll.

San Francisco v. Superior Court, 94 Cal. App. 318.... 65 
Santa Rosa Lighting Co. v. Woodward, 119 Cal. 30.... 66 
Spaeth v. Ocean Park etc. Inv. Co., 16 Cal. App. 329 37

PAGE

State v. Duffy, 7 Nev. 342.............................................  17
State v. Gibson, 36 Ind. 389, 10 Am. Rep. 42.............  13
State v. Hindson, 44 Mont. 429...................................  45
State Board of Equalization v. Superior Court, 5 Cal.

App. (2d) 374......................................................... 45, 71
State ex rel. Clark v. Maryland Institute, 87 Md. 643 31 
State ex rel. King v. District Court, 95 Mont. 400.... 45 
State ex rel. Pier Co. v. Union District School, 46 N.

J. L. 76...........................................................................  31
Stoutmeyer v. Duffy, 7 Nev. 342........... .......................  31
Sullivan v. San Francisco Gas & Elec. Co., 148 Cal.

368..................................................................47, 51, 53, 54
Swan v. Talbot, 152 Cal. 142.........................................  41
Swim v. Superior Court, 193 Cal. 539.........................  44
Tape v. Hurley, 66 Cal. 473.......................................20, 30
Taylor v. Lewis, 132 Cal. App. 122............ ..................  37
Tucker, May E., v. George W. Howe, 139 Cal. App.

162.................................................................................... 37
United States v. Buntin, 10 Fed. 730........ ..................  30
Van Valkenburg v. Brown, 43 Cal. 43...........................  25
Von Schmidt v. Widber, 105 Cal. 151................ ........... 29
Walsh v. McKeen, 75 Cal. 519.......................................  41
Ward v. Flood, 48 Cal. 36......................................... 17, 31
Warfield, Ex parte, 40 Tex. Rep. 413.........................  47
White v. Lyons, 42 Cal. 279...........................................  41
White v. Pasfield, 212 111. App. 73........................... 47, 53
Whittaker v. E. E. McCalla Co., 127 Cal. App. 583.... 37
Willis v. Lauridson, 161 Cal. 106.......... .....................  54
Wysinger v. Crookshank, 82 Cal. 588...............20, 25, 30
Yick W o v. Hopkins, 118 U. S. 356, 6 Sup. Ct. 1064 14



Vlll.

Statutes. page

California Constitution, Art. I, Sec. 21..........................
............................................................ 2, 8, 11, 24, 26, 28

California Constitution, Art. XI, Sec. 8........................ 6

Civil Code, Sec. 51................................2, 9, 11, 26, 27, 28
Civil Code, Sec. 52.........................................    28
Civil Code, Sec. 3423, Subd. 4.........................................  71

Code of Civil Procedure, Sec. 307................................... 39
Code of Civil Procedure, Sec. 431......................   36
Code of Civil Procedure, Sec. 580................................... 41
Code of Civil Procedure, Sec. 953a......   5
Code of Civil Procedure, Sec. 1003.................................  69
Code of Civil Procedure, Sec. 1084................................. 33
Code of Civil Procedure, Sec. 1085 ..........................33, 38
Code of Civil Procedure, Sec. 1086.................................. 56
Code of Civil Procedure, Sec. 1109...........................   44
Pasadena City Charter, Art. I, Sec. 2, Subsec. 19____

................................................................................................................11, 21, 22
United States Constitution, 14th Amendment, Sec. I 

............................................................2, 8, 10, 13, 24, 28

T extbooks and E ncyclopedias.

5 California Jurisprudence, p. 126......... ......................  25
16 California Jurisprudence, p. 858................................ 44
11 Corpus Juris, Sec. 10, p. 805................................20, 30
Dillon Municipal Corporations, Secs. 253 to 257.........  24
14 Ruling Case Law, Sec. 18, p. 22................................ 30







SECOND APPELLATE DISTRICT

State of California

C h a r l e s  S t o n e , W i l l i a m  J. B r o c k , 

W . H . H a r r is o n , J a m e s  P r ic e , F red ­

e r i c k  M . J a m e s , J r ., F r e d e r ic k  D . 

S m i t h ,

Petitioners and Appellants,

vs.

B o ard  o f  D ir e c t o r s  o f  t h e  C i t y  of  
P a s a d e n a , a municipal corporation; and 
E d w a r d  O. N a y , M il t o n  S. B r e n n e r , 
R o b e r t  E. D a w s o n , C a r l  G. W o p - 
s c h a l l , A l b e r t  I. S t e w a r t , C. L. 
S c h u l e r  and C h a r l e s  C. H a m i l l , 
constituting the members of said Board; 
W. H . . N ic h o l a s , Superintendent of 
Parks of the City of Pasadena; C. W. 
K o i n e r , City Manager of the City of 
Pasadena: F r a n k  H a l e , J o h n  D oe  

and R ic h a r d  R o e ,

Defendants and Respondents.

A P P E L L A N T S’ OPENING BRIEF.



— 2—

Statement of the Case.

This is an appeal from a judgment entered 
that the petitioners take nothing in said cause, 
and respondents recover their costs. The ques­
tions of law presented, however, are of great 
general importance, in that the judgment in­
volves the rights of citizens and taxpayers under 
the provisions of the 14th Amendment, Section I 
of the Constitution of the United States of 
America; Article I, Section 21, of the Constitu­
tion of the State of California, and Section 51 
of our Civil Code.

The first amended petition for writ of man­
damus was filed in the Superior Court of the 
State of California, in and for the County of 
Los Angeles, on July 17, 1939. [Supp. pp. 1 to 
10; Clerk Tr. p. 55, line 15, to p. 64, line 13.] 
General and special demurrers to said first 
amended petition for writ of mandate of re­
spondents W. H. Nicholas, Superintendent of 
Parks of the City of Pasadena; C. W. Koiner, 
City Manager of the City of Pasadena, and 
Frank Hale were filed July 24, 1939. [Clk. Tr. 
p. 65, line 16, to p. 74, line 17.] General and 
special demurrer to said first amended petition 
for writ of mandate of the respondent Board of 
Directors of the City of Pasadena, was filed July 
24, 1939. [Clk. Tr. p. 86, line 16, to p. 96, 
line 16.]

All of said demurrers to said first amended peti­
tion for writ of mandamus came on for hearing



-3—

on July 24, 1939, in Department 34 of the 
Superior Court of the State of California, in 
and for the County of Los Angeles, Honorable 
Emmet H. Wilson, Judge, presiding. [Supp. p. 
11; Clk. Tr. p. 101, lines 1 to 21.]

Judge Emmet H. Wilson overruled the general 
and special demurrer of respondents W. H. 
Nicholas, Superintendent of Parks of the City 
of Pasadena; C. W. Koiner, City Manag'er of 
the City of Pasadena, and Frank Hale with ten 
days to answer. [Supp. p. 11; Clk. Tr. p. 101, 
lines 15 to 17.] The demurrer of the Board of 
Directors was sustained and petitioners allowed 
five days to amend. Petitioners did not serve and 
file a second amended petition, and a judgment 
of dismissal as to respondent Board of Directors 
of the City of Pasadena was entered August 3, 
1939, in book 1024, page 170. [Clk. Tr. p. 104, 
lines 8 to 16.]

The answer and return of respondents W. H. 
Nicholas, Superintendent of Parks of the City 
of Pasadena; C. W. Koiner, City Manager of 
the City of Pasadena; Frank Hale, and H. B. 
Rankin, to the first amended petition for writ of 
mandamus was served and filed August 3, 1939. 
[Clk. Tr. p. 85, lines 8 to 18.]

Judge Emmet H. Wilson transferred the alter­
native writ to Department I and continued the 
same to time of trial. [Supp. p. 11; Clk. Tr.

', the
cause was transferred to Department 30 of the

p. 101, lines 19 to 21.] ^
That on the 11th day of {



4

Superior Court of the State of California, in and 
for the County of Los Angeles, before Honorable 
Clement D. Nye, Judge, for trial. That the cause 
was then continued by Judge Nye to September 
13, 1939, for trial. That on September 13, 1939, 
said cause came on for trial before Honorable 
Clement D. Nye, Judge. That at said time and 
before the first witness was sworn, the respond­
ents objected to the introduction of any evidence 
on the ground that the facts stated in the first 
amended petition for the alternative writ do not 
state a cause of action, or a cause of action for 
a writ of mandamus, and that it appears in the 
petition that mandamus is an improper remedy. 
[Supp. p. 17; Rep. Tr. p. 4, lines 17 to 23.] 
Also, see judgment. [Clk. Tr. p. 106, lines 1 
to 8.]

That the sole grounds urged for the objection 
to the introduction of any evidence is because of 
the particular relief sought by the petitioners 
and that injunction is the proper remedy. [Supp. 
p. 17; Rep. Tr. p. 4, line 23, to p. 5, line 7; see 
also Rep. Tr. p. 4, lines 11 to 14.]

Subject to the Court’s ruling on the objection, 
evidence, oral and documentary, was introduced 
on the 13th, 14th and 15 th days of September, 
1939, oral evidence having been transcribed in 
the reporter’s transcript from page 6 thereof to 
page 230.

After the introduction of evidence, no motion 
to exclude the evidence on the same ground as



— 5-

stated in the objection, was made. [Supp. p. 19; 
Rep. Tr. p. 230, lines 8 to 21.]

That thereafter on January 4, 1940, a judg­
ment was entered sustaining the objection to the 
introduction of any evidence, and granting a 
motion to exclude all evidence on the same 
grounds. [Supp. pp. 12 to 14; Clk. Tr. p. 105. 
line 15, to p. 107, line 14.]

That on December 18, 1939, and before entry 
of judgment, appellants filed their notice of in­
tention to move for a new trial. [Rep. Tr. p. 
233.] The same came on for hearing on January 
30, 1940, and on said day the motion was denied. 
[Rep. Tr. p. 234.]

On January 5, 1940, petitioners filed their 
notice of appeal herein, and served a copy of 
said notice on counsel for respondents, W. H. 
Nicholas, Superintendent of Parks of the City 
of Pasadena; C. W. Koiner, City Manager of 
the City of Pasadena; Frank Hale, and H. B. 
Rankin. [Clk. Tr. pp. 109 to 112.]

On January 9, 1940, petitioners filed their no­
tice to clerk requesting that transcript on appeal 
be made up and prepared under Section 953a of 
the Code of Civil Procedure. [Clk. Tr. pp. 113 
to 114.] Said clerk’s transcript and the phono­
graphic report of the trial was duly prepared and 
filed with the clerk of the District Court of 
Appeal of the State of California, Second Appel­
late District, on the 5th day of March, 1940.



— 6 —

Summary of First Amended Petition.

The first amended petition states that all the 
petitioners for more than five years have been, 
and are now residents and citizens of the City of 
Pasadena and of the State of California, United 
States of America, and are over the age of 
twenty-one years, and members of the Negro 
race. That all of said petitioners are qualified 
electors therein.

Petitioners W. H. Harrison and James Price 
own and occupy property situated in Pasadena, 
and for many years have paid taxes thereon, and 
as such taxpayers they contribute to the financial 
support and maintenance of the bath houses and 
swimming pool in the City of Pasadena. That 
all of said petitioners as citizens and resident 
members of the public of the City of Pasadena 
are beneficially interested in the privileges, man­
agement and control of said bath houses and 
swimming pool.

That the City of Pasadena is a municipal cor­
poration organized under a Charter provision of 
Section 8, Article XI, of the Constitution of the 
State of California, and is the owner of and 
maintains and operates certain bath houses and 
a swimming pool which is known as and at the 
Brookside Park Plunge. The said Brookside 
Park Plunge is maintained, operated and man­
aged by the City of Pasadena by and through 
respondents, who are its duly elected and ap­
pointed officers and agents. It is the only bath



— 7—

house and swimming- pool maintained, managed 
and operated within the limits of the City of 
Pasadena, and which is open to the public, and is 
within one mile of the petitioners’ residences. 
The next nearest pool to petitioners is outside 
the limits of the City of Pasadena, and is about 
fifteen miles away.

The said Brookside Park Plunge is open to 
the public during the summer months, but peti­
tioners and other members of the Negro race 
are refused admission to the bath houses and 
swimming pool at all times when the same is open 
to the public except upon Tuesdays of each week, 
which is known as “ International Day,”  and 
when said day falls upon a holiday, then peti­
tioners and other members of the Negro race 
are denied admission to the plunge on that day 
and are admitted to the plunge on the following 
day.

That the refusal is based solely upon the fact 
that petitioners and other members of the Negro 
race are members of the Negro race.

That at times too numerous to mention, peti­
tioners and other members of the Negro race 
have sought admission to the Brookside Park 
Plunge, but such admission has been refused 
upon the sole ground that they are members of 
the Negro race.

On June 11, 1939, and when the plunge was 
open for public use, petitioners requested admis­
sion to the bath houses and swimming pool at



— 8—

the Brookside Park Plunge, but their admission 
was refused by respondents upon the sole grounds 
that petitioners are members of the Negro race.

Again on June 20, 1939, petitioners demanded 
admission to the bath houses and swimming pool 
at the Brookside Park Plunge, but their admis­
sion was refused upon the sole grounds that peti­
tioners are members of the Negro race. They 
protested and demanded admission to the Brook­
side Park Plunge at all times when the same is 
open to the public, but respondents refused and 
do now refuse to admit petitioners to the bath 
houses and swimming pool at Brookside Park 
Plunge. That notwithstanding the fact that the 
other fraction of the public is admitted to the 
Brookside Park Plunge at all times when the 
same is open to the public, petitioners and other 
members of the Negro race are refused upon the 
sole grounds and for the sole reason that peti­
tioners are members of the Negro race.

All of the petitioners are of clean and moral 
habits, and none of them is suffering from any 
contagious or infectious disease, and none of 
them have any physical or mental defect or dis­
ability such as to make their admission to the 
use of said bath houses and swimming pool 
inimical, harmful or detrimental to the health, 
welfare or safety of other users.

Petitioners allege that respondents are charged 
by Article 14, Section I of the Constitution of 
the United States, and Article I, Section 21, of



-9—

the Constitution of the State of California, and 
Section 51 of the Civil Code with the duty to 
afford equal accommodations, advantages and 
privileges to citizens within the jurisdiction of 
the State of California, and to the equal pro­
tection of the laws, and that petitioners are en­
titled to such equal accommodations, advantages 
and privileges and to equal rights and treatment 
with other persons to the use and enjoyment of 
said bath houses and swimming pool at all times 
when the same are open to the public, but re­
spondents have denied and do now deny peti­
tioners the equal accommodations, advantages and 
privileges and to the equal protection of the laws 
in the use and enjoyment of said bath houses 
and swimming pool at the Brookside Park Plunge 
at all times when the same is open to the public.

That petitioners further contend that they have 
no plain, speedy and adequate remedy in the 
ordinary course of law by which they can en­
force their rights unlawfully denied them by 
respondents.

The petitioners pray that there be issued 
against said respondents a writ of mandamus to 
the end

(a) That petitioners be admitted to the use 
and enjoyment of the bath houses and swimming 
pool at Brookside Park Plunge at all times when 
the same are open to the public;

(b ) That petitioners have such other and fur­
ther relief as may be proper.



10-

POINTS AN D  A U T H O R IT IE S.

I.

The First Amended Petition States Facts 
Sufficient to Constitute a Cause of Action, 
and a Cause of Action for W rit of Man­
damus.

The basis of petitioners’ cause of action is that 
their exclusion from the Municipal Plunge at all 
times when it is open to the public, except one 
day of each week, because of their color, con­
stitutes a denial of the equality of their legal 
right to the enjoyment of the facility which has 
been provided by the City of Pasadena, and such 
denial is unconstitutional, unlawful and an abuse 
of discretion.

The 14th Amendment of the Constitution of 
the United States is as follows:

“ Article 14, Section 1: All persons born 
or naturalized in the United States, and 
subject to the jurisdiction thereof, are citi­
zens of the United States and of the states 
wherein they reside. No state shall make or 
enforce any law which shall abridge the 
privileges and immunities of citizens of the 
United States; nor shall any state deprive 
any person of life, liberty or property, with­
out due process of law, nor deny to any per­
son within its jurisdiction the equal protec­
tion of the laws.”



— 11

Article I. Section 21 of the Constitution of 
California reads as follows:

“Article I, Section 21: No special privi­
leges or immunities shall ever be granted, 
which may not be altered, revoked or re­
pealed by the legislature, nor shall any citi­
zen or class of citizens be granted privileges 
or immunities, which upon the same terms 
shall not be granted to all citizens.”

Section 51 of the Civil Code of the State of 
California provides as follows:

“ Section 51: All citizens within the juris­
diction of this state are entitled to the full 
and equal accommodations, advantages, fa­
cilities, and privileges of inns, restaurants, 
hotels, eating houses, places where ice cream 
or soft drinks of any kind are sold for con­
sumption on the premises, barber shops, 
bath houses, theaters, skating rinks, public 
conveyances and all other places of public 
accommodation or amusement, subject only 
to the conditions or limitations established 
by law and applicable alike to all citizens.” 
(Italics ours.)

Article I, Section 2, subsection 19 of the Char­
ter of the City of Pasadena, adopted January 24, 
1901, and amended subsequently to January 10, 
1939, provides as follows:

“ Section 2: The said city shall continue
vested with all the property of every kind 
now belonging to it and shall have power:



12-

Subsection 19: To acquire, improve and 
maintain public parks, playgrounds, swim­
ming pools, golf links, tennis courts and any 
and all facilities of zvhatever kind or char­
acter necessary and/or convenient for the 
public recreation and amusement, and to 
regulate the same.”  (Italics ours.)

At all times persons of the white race have the 
unhindered right to use the bath houses and 
swimming pool at Brookside Park Plunge, but 
such use is denied entirely to petitioners and 
other persons of the Negro race solely by reason 
of their color.

In the case of Cushnie v. The City of Los 
Angeles, Los Angeles County Clerk’s file No. 
181306, a similar question was involved oyer the 
rights of Negroes to use certain swimming pools 
in the City of Los Angeles. Judge Hartley Shaw 
in holding the petition for a writ of mandamus 
sufficient, in his opinion, among other things, 
stated:

“ At all times except on the particular 
afternoon, all persons, except those of the 
Colored Race may have the unhindered use 
of the bath houses and swimming pools, but 
such use is denied entirely to Colored per­
sons, solely by reason of their color. This



— 13—

is not a segregation of races, but an abso­
lute denial of a privilege to one race, and 
appears to me to be a violation of the 14th 
Amendment as construed in the cases above 
referred to. As stated in McCade v. Atchi­
son et cetera Co., supra, ‘if facilities are 
provided substantial equality of treatment 
cannot be refused.’

“ It is no answer to the constitutional ob­
jection to say, while denying a facility to 
any person because of his race, that at some 
other time or on some other conditions he 
may have it. His constitutional right is, 
that he shall not be denied the facility at 
any time because of his race. For this rea­
son the complaint must be held sufficient.”

The fourth clause of Article 14, Section I of 
the United States Constitution forbids any state 
to “deny any person within its jurisdiction the 
equal protection of the law.” This clause was 
added for the purpose of protecting the newly 
made citizens in the same manner and to the 
same extent that white citizens were protected.

State v. Gibson, 36 Ind. 389, 10 Am.
Rep. 42;

Cory v. Carter, 48 Ind. 327, 17 Am. Rep. 
738.



— 14—

And the 14th Amendment was intended to 
secure to the Colored race all the civil rights 
which the White race enjoy.

Percy v. Powers, 51 N. J. L. 432, 17 Atl. 
969, 14 Am. St. Rep. 693, including 
rights as jurors and witnesses;

Carter v. Texas, 177 U. S. 442, and the 
right to fish;

In re Ah Chong, 2 Fed. 732.

The 14th Amendment has application to all 
persons within the territorial jurisdiction of the 
United States, without regard to any difference 
of race, color or nationality, and the equal pro­
tection of the law is the pledge to protection of 
equal laws.

Yick Wo v. Hopkins, 118 U. S. 356, 
6 Sup. Ct. 1064;

Kentucky v. Powers, 201 U. S. 1;
Buchanen v. Warley, 245 U. S. 60, 38 

Sup. Ct. 16.

The provisions of the 14th Amendment have 
been held to apply to all instrumentalities and 
agencies employed by the state, in the administra­
tion of its government, to its executive, legisla­
tive and judicial departments and to subordinate 
legislative bodies of counties and cities.

Cushnie v. City o f Los Angeles, County 
Clerk’s File No. 181306.



— 1 5 -

In applying the provisions to counties and 
cities and individuals, as well as to the states, 
the Supreme Court of the United States in the 
case of Home Telephone Company v. Los Angeles, 
227 U. S. 278, said:

“ The provisions of the amendment as con­
clusively fixed by the previous decisions, are 
generic in the terms, and are addressed of 
course to the states, but also to every per­
son whether natural juridical, who is a 
repository of state power. By this construc­
tion the reach of the amendment is shown 
to be co-extensive with any exercise by a 
state power in whatever form exerted.”

Paragraphs I, III and IV of the first amended 
petition [Supp. pp. 2 and 3] disclose that the 
City of Pasadena derives its powers by charter 
from the State of California, and said City of 
Pasadena maintains, operates and manages the 
bath houses and swimming pools by and through 
respondents, its duly elected and appointed, quali­
fied and acting officers, agents and employees. 
It would seem, therefore, that the provisions of 
the amendment would apply to respondents, pro­
hibiting respondents from discriminating against 
petitioners because of their color and requiring 
of them equal treatment in the exercise of their 
particular function.



— 16—

As stated in Louisville v. Vosworth, 230 Fed. 
191, as follows:

“ The essence of the 14th Amendment is 
to prohibit discrimination and to require 
equal treatment on the part of each depart­
ment of the state in the exercise of its par­
ticular function.”

In the case at bar the fact remains that peti­
tioners are excluded from the municipal plunge 
at all times except on Tuesday. The use and 
enjoyment of the facility is not afforded petition­
ers on Sundays, holidays or other days in the 
week except Tuesday, and that respondents ex­
clude petitioners and other members of the Negro 
race from the advantages of the Brookside Park 
Plunge that it has established.

An analogous situation is well illustrated in 
the decisions determining the privileges and ad­
vantages of educational facilities. Rights in 
equality of receiving an education like other 
equality of legal rights might have been granted 
or refused to any individual or class of indi­
viduals before the adoption of the Fourteenth 
Amendment.

Cory v. Carter, supra;'

Draper v. Cambridge, 20 Ind. 268;

Lewis v. Henley, 2 Ind. 332.



-1 7 -

It is now held, however, that the exclusion of 
Negro children from the public schools is a denial 
to them of the equal protection of the laws and 
within the provisions of the Fourteenth Amend­
ment, and any public school system provided by 
the states must make equal provision for the 
education of all children of school age, irrespec­
tive of race or color.

Claybrook v. Owensboro, 16 Fed. 297;
Ward v. Flood, 48 Cal. 36;
People v. Alton, 193 111. 309, 61 N. E. 

1077, 56 L. R. A. 95;
Cory v. Carter, supra;
People v. Detroit Board of Education, 18 

Mich. 400;
State v. Duffy, 7 Nev. 342.

It has likewise been held that any system of 
taxation for school purposes which discriminates 
with respect to race or color as to a class or the 
purpose for which the tax is to be imposed is 
unconstitutional and void.

Davenport v. Clover port, 72 Fed. 689;
Claybrook v. Owensboro, supra;
Marshall v. Donovan, 10 Bush (Ky.) 

681;
McFarland v. Goins, 96 Miss. 67, 50 So. 

493;
Bonits v. Ahoskie School District No. 11, 

154 N. C. 375, 70 S. E. 735.



— 18—

Likewise the denial of equal rights in public 
conveyances on account of race or color, or the 
discrimination against passengers for that rea­
son, is a violation of the Constitution of our 
republic.

McCabe v. Atchison, Topeka & Santa Fe 
Railway Company, 235 U. S. 151, 35 
Sup. Ct. 69, 59 L. Ed. 169.

A  colored passenger cannot be compelled to 
take inferior accommodations, although at a 
reduced price.

Coger v. Northwestern Union Pac. Co., 
37 la. 145;

E x parte Pluessy, 45 La. Ann. 80, 11 So. 
948, 18 L. R. A. 639.

A  complete exclusion of petitioners from the 
Brookside Park Plunge six days of each week is 
not segregation, but a violation of the letter and 
spirit of the Fourteenth Amendment of the 
United States Constitution. Our United States 
Supreme Court had occasion to so state in Mis­
souri ex rel. Gaines v. Missouri (October Term, 
1938), 305 U. S. 337, 83 L. Ed. 207. There the 
petitioner, Lloyd Gaines, a Negro, was refused 
admission to the school of law of the State 
University of Missouri. He asserted that the 
refusal because of color constituted a denial of 
the equal protection of the laws in violation of 
the Fourteenth Amendment of the Federal Con­



— 19-

stitution. He brought an action for mandamus. 
The Court said:

“ The basic consideration is not as to what 
sort of opportunities other states provide, or 
whether they are as good as those in Mis­
souri, but as to what opportunities Missouri 
itself furnishes to white students and denies 
to Negroes solely upon the ground of color. 
The admissibility of laws separating the 
races in the enjoyment of privileges afforded 
by the state rests wholly upon the equality 
of the privileges which the laws give to the 
separated groups within the state. The ques­
tion here is not the duty of the state to sup­
ply legal training, or of the quality of the 
training which it does supply, but its duty 
when it provides such training, to furnish 
it to the residents of the state upon the basis 
of equality of right.”

In the City of Pasadena a privilege and advan­
tage has been created by respondents for the 
white resident members of the public, which is 
denied to Negroes by reason of their race. White 
resident members have the unhindered right to 
use and enjoy the facilities at Brookside Park 
Plunge at all times; Negro resident members of 
the public, citizens, taxpayers and voters whose 
presence in the bathhouses and swimming pool 
does not endanger the health, welfare and safety 
of other users are refused admission six days of 
each week and during said time must go outside



— 20—

the City of Pasadena and more than 15 miles 
therefrom to swim. That is a denial of the 
equality of legal right to the enjoyment of the 
privilege.

Missouri ex rel. Gaines v. University of 
Missouri, supra.

The State of California and the City of Pasa­
dena, if given such power by the state through 
its Constitution, could provide, if properly given 
such power, the right to provide for the separa­
tion of the races.

1 1 C ./.  805, Sec. 10;
People v. Gallagher, 93 N. Y. 438.

But in the absence of such constitutional au­
thority there can be no separation of races.

Piper v. Big Pine School District, 193 
Cal. 664;

Wysinger v. Crookshank, 82 Cal. 588;
Tape v. Hurley, 66 Cal. 473.

Public authorities have no power to compel the 
separation of races in the absence of constitu­
tional or statutory authority.

Knox v. Bd. of Education, 45 Kan. 152;
Wysinger v. Crookshank, supra;
Tape v. Hurley, supra.



- 2 1 -

In the absence of any statutory or constitu­
tional authority, then by what authority do re­
spondents exclude petitioners and other Negro 
resident members from the plunge six days of 
each week? Can respondents say to petitioners 
they must not use the pool six days of each week 
and on all holidays because of their race? If 
respondents have such authority, it must be given 
to them by statute or Constitution. There are no 
statutory or constitutional provisions justifying 
or authorizing such a refusal, but on the contrary 
there are statutory and constitutional provisions 
forbidding such exclusion.

Before alluding to local statutory and constitu­
tional provisions prohibiting discrimination and 
creating the equality of rights, let us consider the 
Charter of the City of Pasadena.

Article I, Section 2, subsection 19 of the Char­
ter reads as follows :

“ To acquire, improve and maintain public 
parks, playgrounds, swimming pools, golf 
links, tennis courts and any and all facilities 
of whatever kind or character necessary 
and/or convenient for the public recreation 
and amusement, and to regulate the same.”

In the case of Prioleau v. City of Los Angeles 
Board of Playground and Recreational Commis­
sioners, Los Angeles County Clerk’s File No. 
285104, the Court was called upon to construe 
the Charter provisions governing the powers of



— 22—

the Playground Commissioners. In that case, as 
here, the Board excluded Negroes from one of 
the municipal plunges. Judge Gates, in issuing 
the writ of mandamus against the Board com­
pelling it to admit petitioner to the plunge at all 
times when the same is open to the public, stated: 

“ If there are to be regulations or rules 
for the government of playgrounds, they 
must affect all people alike. There cannot 
be a rule which affects a certain race and 
does not affect another race. In other 
words, they must operate equally upon all 
races without distinction. It is fundamen­
tal that, under our theory of government, 
law must operate equally upon all people. 
The constitutional right to the equal pro­
tection of the laws means that every one is 
entitled to stand before the law on equal 
terms with, to enjoy the same rights that 
belong to, and to bear the same burdens as 
are imposed upon others in a like situation. 
(Standard Oil Co. v. Police Jury, supra: 
Kaine v. Commonwealth, 101 Pa. 490.)”

The provisions of Article I, Section 2, sub­
section 19 of the Charter of the City of Pasa­
dena, do not confer any power or discretion in 
the city administrative officers to discriminate or 
make any distinction on account of race. There



-23—

is no presumption of such power or discretion. 
City o f Stockton v. Frisbie and Latta, 93 Cal. 
App. at page 295, where the Court said:

“And it may pertinently be added here 
that it has been uniformly declared by the 
cases that the reservation to itself of such 
discretionary power by the governing boards 
of municipal corporations in dealing with 
police regulations of the same general nature 
as those with which we are here concerned 
does not have the effect of depriving the per­
sons affected thereby of any of the guaran­
tees either of the federal or state constitu­
tions. See E x parte Fiske, 72 Cal. 125; 
Robinson v. Otis, 30 Cal. App. 769; Wilson 
v. Eureka City, 173 U. S. 32.”

The power and authority of respondents have 
been conferred upon them by the Charter of the 
City of Pasadena, and they are vested with such 
capacity and power only as is conferred or passed 
by necessary implication from the statutory 
grant. In the case of Ex parte Frank, 52 Cal. 
606, the question there involved was an ordi­
nance passed under general power conferred by 
Charter of the City and County of San Fran­
cisco. The question involved in the case, was 
the power conferred upon the corporation in the 
right to license and regulate. The Court in quot­



— 2 4 —

ing from Dillon on Municipal Corporations, 
said:

“ An ordinance passed under a general 
authority of this nature, must be, ‘first, 
reasonable and consonant with the general 
powers and purposes of the corporation, 
and not inconsistent with the laws or policy 
of the state; second, it must not be oppres­
sive; third, it must be impartial, fair and 
general; fourth, it must regulate but must 
not restrain trade.’ Dillon on Municipal 
Corporations, Sections 253 to 257 inclusive, 
and authorities there cited.”

Turning now to the statutory and constitu­
tional provisions of the State of California, the 
equality of right to facilities and the correspond­
ing duty to provide the facilities on the basis of 
equality of right as guaranteed by the 14th 
Amendment of the Federal Constitution may 
be regarded, it seems, as expressly stated in 
Article I, Section 21 of the California Constitu­
tion, which provides as follows:

“ No special privileges or immunities 
shall ever be granted which may not be 
altered, revoked or repealed by the legisla­
ture, nor shall any citizen or class of citi­
zens be granted privileges or immunities 
which upon the same terms, shall not be 
granted to all citizens.”



— 25—

A privilege is a special and peculiar benefit 
or advantage enjoyed by a person, company or 
class, beyond the common advantage of other 
citizens.

5 Cal. Jur. 126;
Van Valkenburg v. Brown, 43 Cal. 43.

The equality of right to privileges, benefits or 
advantages is therefore conferred by the Consti­
tution. Likewise, the exclusion of petitioners 
from the plunge at times when others are ad­
mitted is in violation of the above constitutional 
provision, for the reason that respondents have 
conferred a privilege on persons and classes of 
persons that is beyond the common advantage of 
petitioners and other members of their race. 
Attempts to discriminate in favor of or against 
particular persons or classes of persons as to 
whom no reasonable basis for discrimination 
can be seen to exist, have uniformly been held 
in violation of the Constitution. (In re Blois, 
179 Cal. 29; E x parte Miller, 162 Cal. 696; 
E x parte Foley, 172 Cal. 744; Ex parte Hayden, 
147 Cal. 649.) Race or color are not basis for 
discrimination.

Piper v. Big Pines School District, 193 
Cal. 664;

Wysinger v. Crookshank, 82 Cal. 558.



- 2 6 —

The provisions of our Constitution are man­
datory. (Harrison v. Colgan, 148 Cal. 69.) It 
is to be presumed that the purpose of Article I, 
Section 21, is to guarantee to all citizens of this 
state equality of rights to the facilities and privi­
leges within the state by prohibiting granting of 
special privileges. In effect, the state gives to 
all persons equal rights and privileges.

If there be no warrant in our State Constitu­
tion for the exclusion of petitioners from the 
plunge at all times except on Tuesday, is it 
authorized by statute? At once it becomes ap­
parent that there is a specific legislative intent 
that equality of right, accommodations, advan­
tages, facilities and privileges be given to all 
citizens within the State of California, regard­
less of race, creed or color. Such specific in­
tent is found in Section 51 of the Civil Code. 
The Code section was adopted in 1905. Previous 
thereto, there had been a general law contained 
in the Statutes of 1893, at page 220. Such 
earlier statute is quoted at length in Greenberg 
v. Western Turf Association, 140 Cal. 357. 
Section 51 states that all citizens are entitled to 
the

“Full and equal accommodations, advan­
tages, facilities and privileges of inns, res­
taurants, hotels, eating houses, places where 
ice cream or soft drinks of any kind are 
sold for consumption on the premises, bar­
ber shops, bath houses, theaters, skating



- 2 7 -

rinks, public conveyances and all other places 
of public accommodation or amusement, 
subject only to the conditions and limita­
tions established by law, and applicable alike 
to all citizens.”

Under the Section 51, equality of right is af­
forded to the facilities of bath houses. It is a 
place where, in general, a service or accommo­
dation of some kind is sold and where the person 
patronizing such establishment is directly and 
individually concerned in some way. The pur­
pose of the provision is to compel a recognition 
of the equality of citizens in the right to peculiar 
service afforded by these agencies.

Jones v. Kehrlein, 49 Cal. App. 646;
Proved v. Gore, 57 Cal. App. 458;
Hutson v. Owl Drug Co., 79 Cal. App.

390.

Section 51 is a constitutional and valid exer­
cise of the police power of the state. ( Green­
berg v. Western Turf Association, supra.) In 
that case, our Supreme Court held that the pur­
pose of passing Civil Rights laws as Section 51 
of the Civil Code, the state is prohibiting within 
its jurisdiction what the state itself is prohibited 
from doing under the 14th Amendment of the 
Constitution. (Italics ours.) Under the case 
just cited, the Court further held that the Civil 
Rights law was passed under the unquestionable



— 28—

right o f the state in the exercise o f its police 
power. (Italics ours.) The fact that Section 52 
of the California Civil Code gives a right of 
action for damages for discrimination is no 
grounds for objection to the remedy of man­
damus. Petitioners seek the right to the facili­
ties at the Brookside Park Plunge. In this case 
damages would not be as convenient, effectual or 
beneficial as the use and enjoyment of the facili­
ties and privileges at the Municipal Plunge. 
Damages would fall short of affording the com­
plete satisfaction. The right of action for dam­
ages is not a bar to the remedy of mandamus. 
Such is the decision reported in Raisch v. Board 
of Education, 81 Cal. 542.

Turning from these considerations of the rights 
of petitioners and the corresponding duties of 
respondents, in the use and enjoyment of privi­
leges and advantages to which petitioners are 
entitled under Article 14, Section 1, of the United 
States Constitution; Article I, Section 21 of the 
California Constitution, and Section 51 of the 
Civil Code, we present points and authorities in 
support of our petition that respondents unlaw­
fully preclude petitioners of the right to which 
they are entitled.

As has been observed there is no constitutional 
or statutory authority for the exclusion of peti­



-2 9 -

tioners by respondents who are the duly elected 
and appointed officers and agents of the City of 
Pasadena. In the absence of such authority their 
acts are invalid. They must derive their powers 
from, and can only act in obedience to, legis­
lative authority.

Payne v. Treadzvell, 16 Cal. 220;

Raisch v. Board of Education, supra;

Von Schmidt v. Widber, 105 Cal. 151;

City of Los Angeles v. Industrial Acc.
Com., 8 Cal. App. (2d) 580, 47 Pac. 
(2d) 1096.

In City of Los Angeles v. Industrial Acc. 
Com., supra, the Court held:

“ As stated in 21 California Jurisprudence, 
page 872: ‘The powers of public officers
are limited either by the Constitution or by 
statute, and their acts, to be valid, must 
find warrant in law, either expressly or by 
fair implication.’ ”

There being no constitutional or statutory 
warrant for the acts of respondents in exclud­
ing petitioners because of their race from the 
Brookside Park Plunge six days of each week



— 30—

and on holidays, their acts are invalid. It is, of 
course, settled, that the dignities, equalities and 
rights of citizens cannot be denied to members 
of the Negro race. Such a denial has been held 
by the great weight o f authority to be unlawful 
and an abuse of discretion.

Buchanen v. Warley, supra;

Patterson v. Bd. of Education, Trenton, 
164 Atl. 892;

A Hie Bullock v. J. Arthur Wooding, 
N. J. Supreme Court, No. 222, Sept. 
11, 1939;

Chester W . Patterson' v. Board of Edu­
cation of City o f Trenton, 11 N. J. 
M. R. 179;

Piper v. Big Pine School District, supra;

11 Corpus Juris, 805;

Wysinger v. Crookshank, supra;

Crawford v. School District, etc., 68 Ore. 
388;

14 R. C. L., Sec. 18. p. 22;

United States v. Buntin, 10 Fed. 730;

Tape v. Hurley, supra;

McCabe v. Atchison, Topeka & Santa Fe, 
supra;



— 3 1 —

Gaines v. Missouri, supra;

Catania v. Board of Education, 37 Cal. 
App. 593, holding that actions of sub­
ordinate boards and officers must not be 
arbitrary or capricious;

Reynolds v. Board of Education, 66 Kan. 
687;

People ex rel. Bibb v. Alton, 179 111. 615;

People ex rel. Congress v. Board of Edu­
cation, 101 111. 308. 40 Am. Rep. 196;

Dove v. Independent School District, 41 
Iowa 689;

Knox v. Board of Education, 11 L. R. A. 
830;

State ex rel. Pier Co, v. Union District 
School, 46 N. J. L. 76;

State ex rel. Clark v. Maryland Institute, 
87 Md. 643;

Ward v. Flood, 48 Cal. 36;

Stoutmeyer v. Duffy, 7 Nev. 342;

Cory v. Carter, supra.

The remedy of the writ of mandamus has been 
frequently used in other cases and in other juris­
dictions to compel the admission of a party to the 
use and enjoyment of the privileges and facilities



— 32-

of bath houses and swimming pools. ( Cushnie 
v. City o f Los Angeles, supra; Prioleau v. City 
of Los Angeles, supra; Kern v. The City Com­
missioners o f the City of Newton, 147 Kansas 
471; Patterson v. Board of Education, supra.) 
In Kern v. City Commissioners of the City of 
Newton, supra, in issuing the writ of mandamus 
to compel the governing officers to admit Colored 
citizens to the privileges of the municipal swim­
ming pool, the Court said at page 273:

“Would not the arbitrary or illegal action 
of the governing body of Newton be sub­
ject to correction or redress.

It is quite true, however, that our reports 
are replete with precedent cited by counsel 
for the plaintiff which recognizes the right 
of an invidual to invoke injunction, man­
damus or quo warranto to secure redress 
against public officers for the denial of his 
rights where the grievance is peculiar to 
himself or different in degree from the gen­
eral public.

But we think it clear, that in the interest 
of justice and equity, plaintiff is entitled to 
maintain the action in his own name. He is 
deprived of the privilege of the swimming 
pool. He has as good a right to its privi­



— 3 3 -

leges as any other citizen. Deprivation of 
the privileges of access to municipal recrea­
tion grounds established or maintained at 
the general taxpayers’ expense, on account 
of race or color is legally and traditionally 
offensive to the history of this state. The 
Court holds that the plaintiff can maintain 
the action in mandamus. The Writ states a 
cause of action.”

In this connection it may be stated categorically 
that the first amended petition for writ of man­
damus states a cause of action for a writ of 
mandamus. The exclusion of petitioners from 
the privileges of the plunge established and main­
tained at the general taxpayers’ expense on ac­
count of race is not only legally and traditionally 
offensive to the history of the State of Califor­
nia, but is violation of law and against the policy 
of the law.

The Code of Civil Procedure of the State of 
California provides as follows:

Section 1084: “ The writ of mandamus 
may be denominated a writ of mandate.”

Section 1085: “ It may be issued by any 
court, except a municipal, justice’s or police 
court, to any inferior tribunal, corporation,



- 3 4 -

board, or person, to compel the performance 
of an act which the law specially enjoins, 
as a duty resulting from an office, trust, or 
station; or to compel the admission of a 
party to the use and enjoyment of a right 
or office to which he is entitled, and from  
ivhich he is unlawfully precluded by such 
inferior tribunal, corporation, board or 
person.”  (Italics ours.)

The petitioners are citizens, taxpayers and 
resident members of the public in the City of 
Pasadena, and as such are permitted to prose­
cute this action for alleged violations of public 
rights as a beneficiary of a public trust held by 
respondents, whose functions of the government 
are to be exercised by them for the benefit of 
the public.

Coulter v. Pool, 187 Cal. 181;

Cuyamaca Water Company v. Superior 
Court, 193 Cal. 584.

It is our opinion that the first amended petition 
states facts sufficient to constitute a cause of 
action for some relief, and further, that it states 
a cause of action for a writ of mandamus. For 
reasons heretofore and hereinafter set forth, 
said petition is invulnerable to general demurrer.



-35—

II.
Objections to the Introduction of Any Evi­

dence on the Ground That the Petition 
Does Not State a Cause of Action Is 
Determined on Principles as Would Be a 
General Demurrer.

In addition to all other reasons herein ad­
vanced for reversal, it is apparent from the rec­
ord that the objection to the introduction of any 
evidence on the grounds specified by respondents, 
should not have been sustained.

On September 13, 1939, and after the Court 
announced that petitioners may proceed with 
their evidence, attorneys for defendants, re­
spondents herein, made the following motion:

“ Mr. LeSage: This motion is being made 
to the introduction of any evidence, moving 
to exclude all evidence in support of the 
petition on the ground that the facts stated 
in the first amended petition for the alter­
native writ do not state facts sufficient to 
constitute a cause of action, or a cause of 
action for a writ of mandamus, and that it 
appears in the petition that mandamus is 
an improper remedy. The case is barred 
for that particular relief sought by peti­
tioners. Now, we submit, Your Honor, 
that the proper and appropriate and ade­
quate remedy in the case at bar is an in­
junction directed against [Rep. Tr. p. 5, 
lines 1 to 26]: the responsible officers of



— 3 6 —

the city enjoining them from their alleged 
discrimination against the petitioners, and 
if our premise in that connection is correct 
then petitioners have an adequate and ap­
propriate remedy in equity. The authorities 
agree that where there is an adequate and 
appropriate remedy the writ of mandamus 
must be denied.”

The Code of Civil Procedure at Section 431 
provides as follows:

“ The demurrer must distinctly specify the 
grounds upon which any of the objections 
to the complaint are taken. Unless it does 
so, it may be disregarded.”

The grounds for sustaining the objection to 
the introduction of any evidence is because, as 
contended by respondents, “ The case is barred 
for the particular relief sought by the peti­
tioners.” [Rep. Tr. p. 4, lines 22-25.] . . .
“ that the proper and appropriate and adequate 
remedy in the case at bar is an injunction di­
rected against the responsible officers of the 
City enjoining them from their alleged discrimi­
nation against the petitioners.” . . . [Rep.
Tr. p. 4, line 25, to p. 5, line 7.]

The defects specified by respondents is, the 
relief sought by petitioners, and that the proper 
remedy is in equity rather than mandamus.



— 37—

The ruling of the Court in sustaining respond­
ents’ objection to the introduction of any evi­
dence was equivalent to an order sustaining a 
general demurrer.

Whittaker v. E. E. McCalla Co., 127 
Cal. App. 583;

Moore v. Douglas, 132 Cal. 399;

Spaeth v. Ocean Park etc. Inv. Co., 16 
Cal. App. 329;

Taylor v. Lewis, 132 Cal. App. 122.

In May E. Tucker v. George W. Howe, 139 
Cal. App. at page 162, the Court, in reversing 
a judgment of dismissal entered on objection to 
the introduction of any evidence, said:

“ Such motions are to be determined upon 
the same principles as would be a general 
demurrer to the complaint upon the same 
ground, and this regardless of any grounds 
of special demurrer or any defense set up 
in the answer.”

Hibernia Sav. & Loan Soc. v. Thornton, 
117 Cal. 481, 49 Pac. 573;

Elmore v. Lingley, 78 Cal. xA.pp. 461, 248
Pac. 706.



— 38—

The principle determining a general demurrer 
is to raise an issue of law as to the sufficiency 
of the pleading. The facts alleged are admitted 
as true for testing a question of law, whether 
the complaint fails to state any cause of action 
on any theory. It does not reach defects in mat­
ters of form. Generally a petition is demurrable 
on the grounds that it does not state a cause of 
action if an essential element, which goes to 
constitute the cause of action, is not alleged. 
As, for instance, in the case at bar, failure to 
allege a right in petitioners and a corresponding 
duty on respondents; or failure to allege a right 
to which petitioners are entitled and an unlaw­
ful preclusion of that right by respondents. Peti­
tioners contend that the petition not only alleges 
a right and duty, but also a right and an unlaw­
ful preclusion of that right hy respondents. 
(Italics ours.) The allegations of the petition 
allege facts bringing to case under both parts 
of Section 1085 of the Code of Civil Procedure. 
[Clk. Tr. p. 59, line 14, to p. 62, line 4; Supp. 
pp. 6 to 9.]

The test to be applied in determining the suf­
ficiency of a complaint to state a cause of action 
is stated in Hall v. Bell, 143 Wis. 296:

“ In testing a complaint on demurrer for 
insufficiency, the pleading does not neces­
sarily fail because the pleader did not state 
facts sufficient for the precise cause of ac­
tion intended, or because he misconceived



•39—

the precise nature of his cause of action 
and wrongfully denominated it, or because 
of misapprehension of the nature of the 
relief warranted by the facts. If the plead­
ing, giving it the benefit of every reasonable 
inference, expressly or by such inference, 
or both, states facts showing the plaintiff 
entitled to some relief within the competency 
of the Court to grant, it states a cause of 
action for such relief. Such is the liberal 
rule of the Code as early announced (Morse 
v. Gilman, 16 Wis. 504) and many times 
emphasized and given proper significance in 
recent years. In the most recent case the 
rule was tersely applied thus: A demurrer 
challenges the sufficiency of the complaint 
to state a cause of action, and must not be 
sustained in the face of one which does by 
liberal construction state facts from which 
any liability results, although not for some, 
or all the damages sought to be recovered.”

The above principles are grounded in Cali­
fornia by reason of the fact that all forms of 
action are abolished in this state. (Code of Civil 
Procedure, Section 307.)

In Hansen v. Hevener, 69 Cal. App. 337, it is 
said:

“ In many jurisdictions, especially in those 
in which the distinction between suits in 
equity and actions at law is recognized in



4 a

all its original strength, where at the time 
of the commencement of the suit the plain­
tiff knew that specific performance was im­
possible, no damages are recoverable on the 
equity side of the Court, but the plaintiff is 
obliged to resort to the law side of the Court 
for his remedy. In this state, so far as the 
form of action is concerned, a bill in equity 
is not distinguishable from an action at 
law. There is in this state but one form 
of civil actions for the enforcement or pro­
tection of private rights and the redress or 
prevention of private wrongs. (Sec. 307, 
Code of Civ. Proc.) As is said in the case 
of Spect v. Spect, 88 Cal. 437 (22 Am. St. 
Rep. 314, 13 L. R. A. 137, 26 Pac. 203): 
Courts look to the substantial rights of the 
parties for the purpose of determining the 
remedy to ivhich they are entitled, irrespec­
tive o f the form of the complaint under 
which the remedy is sought. (Italics ours.) 
It is only necessary that the complaint show 
a state of facts entitling plaintiff to some 
relief, and thereupon (assuming the evidence 
to justify it) the Court will afford such 
relief without reference to the manner or 
form of the pleading. (Carpenter v. Bren- 
ham, 50 Cal. 549.) In the case of Merri- 
man v. Walton, 105 Cal. 403 45 Am. St. 
Rep. 50, 30 L. R. A. 786, 38 Pac. 1108), 
the statement is made that ‘under the system 
of procedure which obtains in this state, 
where various kinds of relief are admin-



— 4 1 —

istered by the same tribunal, and where 
there is but one form of civil action for the 
enforcement or protection of civil rights, a 
party who presents a complaint showing his 
right to the relief asked, is not to be denied 
that relief because he might have sought it 
under a different form of action.’ ”

We submit that mandamus is the proper 
remedy, but assuming that it is not, petitioners 
are not to be denied relief just because of the 
particular relief sought. (Swan v. Talbot, 152 
Cal. 142; White v. Lyons, 42 Cal. 279; Knowles 
v. Baldwin, 125 Cal. 224, 226; Harden v. Ware, 
2 Cal. Unrep. 72; Walsh v. McKeen, 75 Cal. 
519; Poett v. Stearns, 28 Cal. 226.) In Pascoe v. 
Morrison, 219 Cal. 54, an appeal from a judg­
ment sustaining an objection to the introduction 
of any evidence was reversed, holding that 
Courts will grant relief without reference to the 
form of the pleading.

Section 580 of the Code of Civil Procedure 
provides as follows:

“The relief granted to the plaintiff, if 
there be no answer, cannot exceed that 
which he shall have demanded in his com­
plaint; but in any other case, the Court



may grant him any relief consistent with 
the case made by the complaint and embraced 
within the issue.”

When an answer has been filed, the prayer of 
the complaint becomes immaterial. Respondents’ 
answer was filed August 3, 1939. [Clk. Tr. p. 
85, lines 8 to 18.] The fact that a party prays 
for relief to which he is not entitled does not 
defeat his right to such relief as may be proper. 
Neblett v. Neblett, 13 Cal. App. (2d) 304; Cali­
fornia Trust Co. v. Cohn, 214 Cal. 619. Hold­
ing that defendants’ second amended cross-com­
plaint alleges a good cause of action for refor­
mation, and that it is unnecessary to determine 
whether the cross-complaint alleges facts suf­
ficient for declaration of a trust or the imposi­
tion of damages, the Court held at page 628:

“ A  general demurrer challenges the suf­
ficiency of the pleading to state any cause 
of action and must not (italics ours) be sus­
tained if the pleading states facts from 
which any liability results, although not for 
some or all the relief sought to be obtained. 
(Hall v. Bell, 143 Wis. 296, 299 [127 N. 
W. 967].) If the pleading states ground 
for relief, either legal or equitable, it will 
stand the test of a general demurrer.



(Swan v. Talbot, 152 Cal. 142, 144 [17 L.
R. A. (N. S. 1066, 94 Pac. 238].) It is 
sufficient if the pleading contains the allega­
tions essential to the statement of any one 
cause of action even though an abortive at­
tempt be made to state facts calling for 
other and different relief.”

Respondents direct their objections to the par­

ticular relief sought which according to the 
weight of authority cannot be reached by the 
form of objection interposed. Anglo California 
Trust Co. v. Kelley, 117 Cal. App. 692; Gus­

tafson v. Byers, 105 Cal. App. 584; nor may a 
general demurrer be directed at a part of a cause 
of action. Fairbairn v. Eaton, 6 Cal. App. (2d) 

264; Kelly v. Cameron, 72 Cal. App. 660.

In Burner v. American Bar Quarts Mining 

Co., 76 Cal. App. 767, it was objected that the 
complaint does not. distinctly show the remedy 
sought by the plaintiff. The Court held the 
objection was well answered in Lillie v. Weyl- 
Zuckerman & Co., 45 Cal. App. 607, which held:

“ Conceding the complaint was uncertain 
in the respect named, nevertheless it was not



4 4

obnoxious to the general demurrer, for the 
reason that, under the allegations made and 
in the absence of any special objection to 
the complaint, plaintiff might introduce evi­
dence tending to prove that upon defendant’s 
breach he adopted, as he was entitled to do, 
any one of the three courses open to him.”

The foregoing rules of practice are applicable 
to and constitute the rules of practice in man­
damus proceedings, 1109 Code of Civil Proced­
ure; 16 Cal. Jur. 858; People v. Board of Super­

visors, 27 Cal. 655; a proceeding to procure 
(Italics ours) a writ of mandate is a civil action, 
and the general rules of the Civil Practice Act 
are applicable to it.

In mandamus proceedings, if the petition con­

tains a prayer for general relief, the Court may 
award any remedy warranted by the pleadings. 
Goldsmith v. Board o f Education; 63 Cal. App. 
141; Pereria v. Wallace, 129 Cal. 397; Swim v. 
Superior Court, 193 Cal. 539, wherein it was 
said that where the prayer of a “ Petition for 
Writ of Mandate” is in effect a writ of review, 
the Court may grant whatever relief is war­

ranted.



— 45—

Where, in a proceeding by a party to obtain 
relief which is personal to himself, the Court per­
ceives from the allegations contained in the plead­
ings that the public at large or the members of 
some class are entitled to relief, it is the Court’s 
duty to extend relief. The Court is not bound 
by the prayer of the relief of the applicant. 
State v. Hind-son, 44 Mont. 429; State ex rel. 
King v. District Court, 95 Mont. 400. In State 
Board of Equalisation v. Superior Court, 5 Cal. 
App. (2d) 374, where in a proceeding for a writ 
of mandamus the Court issued a peremptory 
writ of prohibition. (Italics ours.) The Court 
said at page 379:

“ However, we are of the opinion that the 
facts, all of which are before us, show lack 
of jurisdiction and make proper the issuance 
of a writ of prohibition, as it is well settled 
that in such cases the Court will give such 
relief as the record presented will warrant. 
(Swim v. Superior Court, 193 Cal. 539 [226 
Pac. 2 ]; Finn v. Butler, 195 Cal. 759, 766 
[235 Pac. 992]; A. G. Col. Co. v. Superior 
Court, 196 Cal. 604 [238 Pac. 926]; Board 
of Trustees v. State Board of Equalization, 
1 Cal. (2d) 784 [37 Pac. (2d) 84]; Hale 
v. Barker, 70 Utah, 284 [259 Pac. 928].)



The Remedy of Injunction Is Not a Plain, 
Speedy and Adequate Remedy in the 
Case at Bar.

( a )  I n  t h e  A b s e n c e  o f  P r o p e r t y  R i g h t s  or 
I n c id e n t s  T h e r e t o , a n  I n j u n c t i o n  W i l l  
N o t  I s s u e  to  E n f o r c e  N a k e d  P e r s o n a l  
R i g h t s .

The respondents object to the introduction of 
any evidence on the ground that the remedy of 
mandamus is improper, and that the proper and 
appropriate and adequate remedy in the case at 
bar is an injunction directed against the respon­
sible officers of the City enjoining them from 
their alleged discrimination against the petition­
ers. [Rep. Tr. p. 4, line 25, to p. 5, line 5; 
Supp. p. 17, pp. 50 and 51.]

Injunction is the proper remedy only in cases 
of equitable cognizance. It is purely equitable 
and must be based on some equitable circum­
stances. Coker v. Simpson, 7 Cal. 340; Fletcher 
v. Tuttle, 151 111. 41. In Fletcher v. Tuttle, 
supra, the Court in distinguishing between equity 
and common law jurisdiction, said:

“ Injunction and mandamus writs properly 
pertain to entirely different jurisdictions, and 
to different classes of proceedings, injunc­
tion being the proper remedy only in cases 
of equitable cognizance, and mandamus be­
ing a common law writ.”

III.



- 4 7 -

Injunction is a peculiar, extraordinary and 
equitable remedy, and is therefore governed by 
the general principles which control the granting 
of equitable relief and ought not to be issued 
except for the prevention of great and ir­
reparable injury. Powers v. Hitchcock, 129 Cal. 
325; Katz v. Walkinshaw, 141 Cal. 116.

It is a frequently asserted doctrine that equity 
has jurisdiction only (italics ours) to enforce or 
to protect property rights or rights incident there­
to (italics ours), and has no jurisdiction where 
mere personal rights are involved. It seems, as 
laid down by the text writers and the courts, 
that it is beyond the scope of powers of the 
courts of equity to enforce mere personal rights 
as distinguished from property rights. Angelas 
v. Sullivan, 246 Fed. 54; Owen v. Partridge, 82 
New York Supp. 248; White v. Pasfield, 212 111. 
App. 73; Murray v. Gast Lithographic Co., 28 
New York Supp. 271; National Council J. 0. U. 
v. State Council, 203 U. S. 151; Ex Parte War- 
field, 40 Tex. Rep. 413 ; Sullivan v. San Fran­
cisco Gas & Elec. Co., 148 Cal. 368; Moise v. 
City and County of San Francisco, 55 Cal. App. 
151; Dailey v. Superior Court, 112 Cal. 94; 
Crocker v. Scott, 149 Cal. 575.



— 48—

In Murray v. Gast Lithographic Co., supra, it 
was held:

“ A  Court of equity is powerless to en­
force a right or to prevent a wrong in the 
abstract; that it is fundamental to the 
Court’s jurisdiction, in any case where the 
application is for an injunction, that some 
property right belonging to the party seek­
ing the relief is in jeopardy, and in the ab­
sence of actual or threatened injury to prop­
erty rights, injunctive relief must be denied.”

In the case at bar, respondents contend that 
the proper remedy is an injunction enjoining the 
responsible officers of the City of Pasadena from 
their discrimination against the petitioners. Such 
was the very proceedings brought in White v. 
Pasfeld, supra. In that action Negro residents 
of the state of Illinois sought by an injunction 
to enforce their rights to bathe in a public bathing 
pool in a park and to use a public pavilion in con­
nection with the pool. (Italics ours.) A  de­
murrer to the bill was sustained. In holding the 
bill for injunctive relief improper and inadequate, 
the Court said:

“ A  Court of equity has no jurisdiction and 
will not interfere in a matter concerning 
merely personal rights, where no property 
rights or interest are involved, but that a 
party complaining of the violation of such 
rights must pursue his remedy at law.”



49-

The foundation for the issuance of the writ of 
injunction must rest in the doctrine that there is 
injury to property. National Council J. O. U. v. 
State Council, supra.

In Moise v. City and County of San Francisco, 
supra, the plaintiff commenced an action to per­
petually enjoin the defendant city, its tax col­
lector, agents and employees from collecting a 
license tax, and from enforcing the provisions of 
an ordinance and to declare the ordinance null 
and void. The city appeared and answered and 
judgment went for the city. In affirming the 
judgment in favor of the city because the ques­
tion only involved mere illegality of the ordi­
nance and no property rights of the plaintiff, the 
Court held that something more than mere il­
legality is necessary to justify the interference 
of a court of equity, and at page 156 said:

“ At an early date, Mr. Justice Field, writ­
ing the opinion of the court in Dows v. 
City of Chicago, 11 Wall. (U. S.) 110, said, 
‘No Court of equity will therefore, allow its 
injunction to issue to restrain their action, 
except where it may be necessary to protect 
the rights of the citizen whose property is 
taxed, and he has no adequate remedy by the 
ordinary processes of the law. It must ap­
pear that the enforcement of the tax, would 
lead to a multiplicity of the suits, or produce 
irreparable injury, or where the property is 
real estate, throw a cloud upon the title



— 50—

of the complainant before the aid of a 
court of equity can be invoked.’ That case 
has been cited and followed in California 
from the earliest times.”

It was said in Crocker v. Scott, supra, on the 
question of the inability of the equitable remedy 
of injunction to restrain the proceedings of an 
officer, because the same were illegal and where 
no property rights are involved.

“ It is well settled by the decisions in this 
state that the equitable remedy by injunction 
will not be granted to restrain proceedings 
of the officers, on whom is devolved the duty 
of enforcing the tax laws, merely because 
the tax sought to be enforced is illegal. To 
justify the exercise of such a remedy, it 
must appear that the same is necessary to 
protect the rights of the property-owner and 
will not to any greater extent impede the 
officers of the state in the performance of 
their duties.”

In Dailey v. Superior Court, supra, the doc­
trine seems to be well stated that the jurisdiction 
of equity rests only upon the protection of rights 
of property. There the Superior Court made an 
order restraining Dailey from giving any special 
performance of a play based upon the facts of 
the murder trial of one Durant. On certiorari, 
Dailey contended that the Superior Court ex­
ceeded its power and jurisdiction. The order re­
straining Dailey was annulled, holding that the



— 5 1 -

jurisdiction of equity to restrain a publication 
rests only upon the protection of rights of prop­
erty in that which it is sought to be published, 
and that equity has no jurisdiction to restrain 
any publication of a literary work upon the 
mere ground that it is of a libelous character 
and tends to the degradation or injury of the 
reputation or business of the plaintiff.

The case of Sullivan v. San Francisco Gas & 
Electric Company, supra, was an injunction en­
joining defendants from making or filing a crim­
inal complaint or issuing or serving any warrant 
of arrest. Plaintiffs further claim that they have 
a right to carry on their business of house mov­
ing and a civil right (italics ours) to use the 
streets for that purpose. In reversing the order 
granting an injunction against defendants, en­
joining defendants from making or filing any 
criminal complaint or issuing or serving any war­
rant of arrest, the Court said that it knew of no 
principle of jurisprudence which authorizes a 
court of equity, on the ground that it will pre­
vent a multiplicity of suits, or that it will prevent 
an injurious interference with plaintiff’s business, 
to proceed to investigate as to the truth of crim­
inal charges that have been, or may be preferred 
against him, to hear the evidence in regard to his 
guilt or innocence, to determine in advance of 
the decision of the lawfully constituted criminal 
court, the question of the party’s guilt or inno­
cence. That was in substance, the relief which



— 52—

the petitioners demanded. It was also stated in 
said opinion, that courts of equity will in proper 
cases enjoin the attempt to enforce a law or or­
dinance, where the law or ordinance is invalid, 
and its enforcement will injure or destroy plain- 
tiff’s property or property rights, or where it 
causes him material and irreparable loss, but 
by the great weight of authority, equity has no 
jurisdiction where property rights or rights in­
cident thereto are not involved.

As we point out later herein, at common law 
there was no remedy as to racial discrimination, 
no person had the right to be free from dis­
crimination on the grounds of race or color.

Therefore, any rights or remedies now exist­
ing as to discrimination on account of race, color 
or creed are created by the constitution and legis­
lative enactments hereinbefore set out in this 
brief.

Although there is but one form of action in 
this state, the general principles which govern 
equitable actions have not been abolished. One 
must still show ground for the interference of 
a Court of Chancery or by statute. With re­
spect to respondents’ argument that the proper 
and adequate remedy is an injunction enjoining 
the responsible officers from their alleged dis­
crimination against petitioners, we know of no 
authority for such interference. It must be con­
ceded that rights involved are mere personal 
rights, personal to petitioners as citizens and tax­



- 5 3 -

payers and which said rights are not made de­
pendent upon the volume of demand. Gaines v. 
Missouri, supra. Viewing respondents’ argu­
ment generously to attempt to enjoin public of­
ficers from discriminating against petitioners, we 
would be asking the Court to enjoin them from 
committing illegal acts (italics ours) which was 
the same relief attempted and pointed out herein 
in the cases of White v. Pasfield, Sullivan v. 
San Francisco, Moise v. San Francisco, Dailey v. 
Superior Court and Scott v. Crocker. We know 
of no principle of jurisprudence which authorizes 
a court of equity to proceed to investigate feel­
ings of animosity or prejudice that respondents 
have engendered in the course of their duties as 
public officers against petitioners, determine in 
advance the cause for such feeling and whether 
the discrimination will continue.

Such considerations indicate the difficulty in 
enjoining respondents from discriminating 
against petitioners. In seeking such relief, the 
question of injury would be raised. That is 
to say, the question of petitioners’ feelings by 
reason of the discrimination. Although peti­
tioners have suffered a wrong by reason of such 
discrimination, the wrong done by respondents 
to petitioners would be a wrong in the abstract 
for which an injunction will not issue.

The petitioners have sought admission to the 
use and enjoyment of the privileges of the plunge 
at all times when the same is open to the public,



— 54—

and not the preventive (italics ours) processes 
of the Court against discrimination. The prin­
ciple of Sullivan v. San Francisco, supra, could 
be applied in the case at bar holding that equity 
has no jurisdiction to prevent injurious inter­
ference. It is fundamental to the Court’s jurisdic­
tion of injunction that some property rights or 
rights incident thereto belonging to the party 
seeking the relief is in jeopardy, and that it is 
necessary to seek the preventive processes of in­
junction to protect actual or threatened injury to 
property rights or rights incident thereto.

If petitioners were to apply to the Court for 
an injunction enjoining respondents from dis­
criminating against them, as suggested by re­
spondents, the Court would not be authorized, on 
the ground that it will prevent a multiplicity of 
suits or prevent an injurious interference, inde­
pendent of any wrong involving physical injury 
or threatened injury to person or property. 
These considerations are not matters of proper 
concern of the remedy of injunction, which lies 
to prevent great and irreparable injury. It is 
to be remembered that the issuance of the writ 
of injunction is a matter that rests wholly with­
in the sound judicial discretion of the Court, and 
rarely, if ever, is issued in a doubtful case. 
Willis v. Lauridson, 161 Cal. 106; Raisch v. 
Warren, 18 Cal. App. 655.

A  clear case holding that injunction would not 
lie to prevent illegal interference is the case of



•55—

Ashinsky v. Levenson (1917), 256 Pa. 14, L. 
R. A. 1917D, 100 Atl. 491. The plaintiff, Mr. 
Ashinsky, sought an injunction directed against 
a member of a religious denomination enjoining 
him from insulting or molesting the pastor near 
the house of worship or upon the public streets. 
Upon the doctrine that injury to property is the 
foundation upon which the jurisdictions of courts 
of equity rest, the Court held:

“ If the Rabbi is insulted or molested by 
the defendant, the law provides an adequate 
remedy and he must resort to it for his pro­
tection. The legal remedies for such of­
fenses are well understood and are con­
stantly invoked by the wronged party. 
Equity will not enjoin the commission of 
the alleged offense as is well settled by all 
the authorities.”

The Court proceeded to quote authority to the 
effect that equity is concerned only with ques­
tions which affect property, and it exercises no 
jurisdiction in matters of wrongs to the person 
or to political rights or because the act com­
plained of is merely criminal or illegal.

Protection is not given where the acts com­
plained of are purely wrongs to person.

It is evident from the California cases that 
courts have frequently based their jurisdiction 
nominally on alleged property rights when in 
reality the only real right involved was a per­



— 56—

sonal right, but in each case the Court has based 
its relief on an alleged property right. Since no 
property rights or incidents to property rights 
are involved in preventing discrimination against 
petitioners, manifestly, without a nominal prop­
erty right upon which the Court may base its 
relief, it is our opinion, that the remedy of in­
junction would not be a plain, speedy, and ade­
quate remedy for petitioners.

( b )  T h e  R e m e d y  o f  M a n d a m u s  I s  a  P r o p e r , 
A p p r o p r ia t e  a n d  A d e q u a t e  R e m e d y  
W h e r e  t h e  R i g h t  I s  a  P e r s o n a l  O n e .

The writ of mandamus must issue in all cases 
where there is no plain, speedy and adequate 
remedy, in the ordinary course of law. 1086 
Code of Civil Procedure.

Relief was obtained by the remedy of man­
damus in the recent case of Missouri ex rel. 
Lloyd Gaines v. University of Missouri, supra, 
there the petitioner, a Negro, sought admission 
to the University of Missouri Law School by 
writ of mandamus. {In that case only one peti­
tioner was involved.) On final hearing an alter­
native writ was quashed and a peremptory writ 
was denied. The Supreme Court of the State 
of Missouri affirmed the judgment. When Mr. 
Gaines filed his application for admission to the 
law school, he was advised to apply to the State 
Superintendent of Schools for tuition at a uni­



■57-

versity in some adjacent stated. The State of 
Missouri has no separate law schools for 
Negroes. There was nothing objectionable to 
the work and credits of Mr. Gaines that would 
disqualify him for admission to the school of 
law at the University of Missouri. The re­
fusal of admission to the university was on the 
sole grounds that it was contrary to the con­
stitution, laws and public policy of the state to 
admit a Negro as a student in the University of 
Missouri. The fact that by statute, provision 
was made for the payment of tuition for Negroes 
to attend a law school outside of the state, made 
it evident that the legislature did not intend that 
Negroes and whites should attend the same uni­
versity.

This case was decided by the Supreme Court 
of the United States, December 12, 1938. The 
judgment of the Supreme Court of Missouri was 
reversed and the cause remanded for further pro­
ceedings not inconsistent with the opinion. It 
is our opinion that the Gaines v. Missouri case 
definitely supports the theory of the case at 
bar. The facts are very similar, the only dis­
tinguishing facts being that in the Gaines case 
one Negro sought to compel admission to a 
school, while in the case at bar five Negroes 
are seeking admission to bath houses and swim­
ming pools at Brookside Park Plunge. We 
therefore, set forth in haec verba a portion of



— 58—

the Gaines case decision which supports our con­
tention that the remedy of mandamus is not an 
inappropriate remedy in the case at bar. We 
quote from said opinion as follows:

“ We think that these matters are beside 
the point. The basic consideration is not as 
to what sort of opportunities other States 
provide, or whether they are as good as 
those in Missouri, but as to what opportuni­
ties Missouri itself furnishes to white 
students and denies to negroes solely upon 
the ground of color. The admissibility of 
laws separating the races in the enjoyment 
of privileges afforded by the State rests 
wholly upon the equality of the privileges 
which the laws give to the separated groups 
within the State. The question here is not 
of a duty of the State to supply legal train­
ing, or of the quality of the training which 
it does supply, but of its duty when it pro­
vides such training to furnish it to the resi­
dents of the State upon the basis of an 
equality of right. By the operation of the 
laws of Missouri a privilege has been cre­
ated for white law students which is denied 
to negroes by reason of their race. The 
white resident is afforded legal education 
within the State; the negro resident having 
the same qualifications is refused it there 
and must go outside the State to obtain it. 
That is a denial of the equality of legal right 
to the enjoyment of the privilege which the 
State has set up, and the provision for the



- 5 9 -

payment of tuition fees in another State 
does not remove the discrimination.

The equal protection of the laws is ‘a 
pledge of the protection of equal laws.’ 
Yick Wo v. Hopkins, 118 U. S. 356, 369. 
Manifestly, the obligation of the State to 
give the protection of equal laws can be 
performed only where its laws operate, that 
is, within its own jurisdiction. It is there 
that the equality of legal right must be 
maintained. That obligation is imposed by 
the Constitution upon the States severally as 
governmental entities,— each responsible for 
its own laws establishing the rights and 
duties of persons within its borders. It is 
an obligation the burden of which cannot be 
cast by one State upon another, and no 
State can be excused from performance by 
what another State may do or fail to do. 
That separate responsibility of each State 
within its own sphere is of the essence of 
statehood maintained under our dual sys­
tem. It seems to be implicit in respondents’ 
argument that if other States did not pro­
vide courses for legal education, it would 
nevertheless be the constitutional duty of 
Missouri when it supplied such courses for 
white students to make equivalent provision 
for negroes. But that plain duty would ex­
ist because it rested upon the State inde­
pendently of the action of other States. We 
find it impossible to conclude that what 
otherwise would be an unconstitutional dis­



- 6 0 -

crimination, with respect to the legal right 
to the enjoyment of opportunities within the 
State, can be justified by requiring resort 
to opportunities elsewhere. That resort may 
mitigate the inconvenience of the discrimi­
nation but cannot serve to validate it.

Nor can we regard the fact that there is 
but a limited demand in Missouri for the 
legal education of negroes as excusing the 
discrimination in favor of whites. We had 
occasion to consider a cognate question in 
the case of McCabe v. Atchison, Topeka & 
Santa Fe Railway Co., supra. There the 
argument was advanced, in relation to the 
provision by a carrier of sleeping cars, din­
ing and chair cars, that the limited demand 
by negroes justified the State in permitting 
the furnishing of such accommodations ex­
clusively for white persons. W e found that 
argument to be without merit. It made, we 
said, the constitutional right ‘depend upon 
the number of persons who may be dis­
criminated against, whereas the essence of 
the constitutional right is that it is a per­
sonal one. Whether or not particular facili­
ties shall be provided may doubtless be con­
ditioned upon there being a reasonable de­
mand therefor, but, if facilities are provided, 
substantial equality of treatment of persons 
traveling under like conditions cannot be 
refused. It is the individual who is en­
titled to the equal protection of the laws, 
and if he is denied by a common carrier,



- 6 1 -

acting in the matter under the authority of 
a state law, a facility or convenience in the 
course of his journey which under substan­
tially the same circumstances is furnished to 
another traveler, he may properly complain 
that his constitutional privilege has been 
invaded.’ Id., pp. 161, 162.

Here, petitioner’s right was a personal 
one. It was as an individual that he was 
entitled to the equal protection of the laws, 
and the State was bound to furnish him 
within its borders facilities for legal educa­
tion substantially equal to those which the 
State there afforded'for persons of the white 
race, whether or not other negroes sought 
the same opportunity.

It is urged, however, that the provision 
for tuition outside the State is a temporary 
one,— that it is intended to operate merely 
pending the establishment of a law depart­
ment for negroes at Lincoln University. 
While in that sense the discrimination may 
be termed temporary, it may nevertheless 
continue for an indefinite period by reason 
of the discretion given to the curators of 
Lincoln University and the alternative of 
arranging for tuition in other States, as 
permitted by the state law as construed by 
the state court, so long as the curators find 
it unnecessary and impracticable to provide 
facilities for the legal instruction of negroes 
within the State. In that view, we cannot 
regard the discrimination as excused by 
what is called its temporary character.



— 62—

We do not find that the decision o f the 
state court turns on any procedural question. 
The action was for mandamus, but it does 
not appear that the remedy would have been 
deemed inappropriate if the asserted federal 
right had been sustained. In that situation 
the remedy by mandamus was found to be 
a proper one in University v. Maryland, 
supra. In the instant case, the state court 
did note that petitioner had not applied to 
the management of Lincoln University for 
legal training. But, as we have said, the 
state court did not rule that it would have 
been the duty of the curators to grant such 
an application, but on the contrary took the 
view, as we understand it, that the curators 
were entitled under the state law to refuse 
such an application and in its stead to pro­
vide for petitioner’s tuition in an adjacent 
State. That conclusion presented the fed­
eral question as to the constitutional ade­
quacy of such a provision while equal op­
portunity for legal training within the State 
was not furnished, and this federal question 
the state court entertained and passed upon. 
We must conclude that in so doing the court 
denied the federal right which petitioner set 
up and the question as to the correctness of 
that decision is before us. W e are of the 
opinion that the ruling was error, and that 
petitioner was entitled to be admitted to the 
law school of the State University in the 
absence of other and proper provision for 
his legal training within the State.



•63—

The judgment of the Supreme Court of 
Missouri is reversed and the cause is re­
manded for further proceedings not in­
consistent with this opinion.

It is so ordered.”

An injunction enjoining respondents from dis­
criminating against petitioner is not as equally 
beneficial, adequate and convenient as man­
damus compelling petitioners admission. If our 
premise in this respect is correct an injunction 
is not a plain, speedy and adequate remedy in 
the ordinary course of. law under Sections 1085 
and 1086 requiring a writ of mandamus to be 
issued where there is no plain, speedy and ade­
quate remedy in the ordinary course of law.

To supersede the remedy by mandamus the 
party must not only have a specific, adequate, 
legal remedy, but one that is competent to af­
ford relief upon the very subject matter of his 
application, and one which is equally convenient, 
beneficial and effective as the proceeding by 
mandamus. Raisch v. Board of Education, 
supra; Dufton v. Daniels, 190 Cal. 577; Nessbitt 
v. Superior Court, 214 Cal. 1; Coon v. Bis- 
cailus, 1 Cal. App. (2d) 346. To bar man­
damus it must be capable of directly affording 
and enforcing the relief sought. Dufton v. 
Daniels, 190 Cal. 577. These and numerous 
other decisions have repeatedly held that man­
damus is the proper remedy if the other remedy



-64

is not equally as convenient, beneficial or effec­
tive.

We respectfully submit that the case at bar 
presents a question requiring relief by man­
damus. To enjoin discrimination would be an 
idle act. Discrimination is defined by Webster 
to “ I. To distinguish; to observe the difference 
between; to select from others.”  If the remedy 
of injunction can prevent respondents from mak­
ing any difference between, or selecting petition­
ers from, others, the relief has not afforded peti­
tioners that which is sought by mandamus, to- 
w it: admission to the bath houses and swimming 
pool at all times when the same is open to the 
public. Many other reasons for the denial of 
equality of right to the use of bath houses and 
swimming pools would arise. The excuses might 
not be good in law or for good cause, neverthe­
less, petitioners would not be admitted to the 
facilities under the control of respondents at all 
times when the same are open.

Furthermore, it is apparent that petitioners 
would doubtless become involved in endless liti­
gation determining whether the cause for the 
denial was discrimination or for reasons other 
than their color.

Being unable to secure speedy and adequate 
admission to the use and enjoyment of the 
privileges and facilities of the bath houses and 
swimming pool at Brookside Park Plunge by



the remedy o f injunction it follows that man­
damus is the proper remedy to secure such ad­
mission. The writ must issue where there is no 
plain, speedy and adequate remedy. What is a 
plain, speedy and adequate remedy is a ques­
tion of fact determined by the circumstances of 
each case. We believe, with these considera­
tions in mind, that the quickest and best and 
surest way of disposing of this matter is to 
compel admission, as against restraining dis­
crimination.

The case at bar may be well solved by the 
principles stated in San Francisco v. Superior 
Court, 94 Cal. App. 318, where it is said:

“ What is a plain, speedy, and adequate 
remedy in the ordinary course of law is al­
ways a question of fact to be determined 
upon the circumstances of each case and 
when it appears that the ordinary remedies 
would not be plain, speedy and adequate 
the court has jurisdiction to entertain the 
proceedings, and the petitioner is then en­
titled to the writ as a matter of right. (Gay 
v. Torrance, 145 Cal. 144, 148 (78 Pac. 
540); Larkin v. Superior Court, 171 Cal. 
719, 726 (Ann. Cas. 1917 D, 670, 154 Pac. 
841).)

In short, there being no plain, speedy, and 
adequate remedy by injunction, the remedy of 
mandamus is the proper, adequate and appro­
priate remedy in the case at bar.



— 66—

IV.
The Legal Remedy of Mandamus Is Not 

Barred by an Equitable Remedy of In­
junction.

Another reason advanced for reversal is ap­
parent from the reporter’s transcript at page 5, 
lines 5 to 7, supplement page 51. Supporting 
respondents’ premise that the equitable remedy 
of injunction is the proper, appropriate and ade­
quate remedy they advance the argument that the 
writ of mandamus must, therefore, be denied.

We find no authorities in that respect but 
on the contrary the authorities all seem to con­
cur that the equitable remedy of injunction does 
not deprive a party of the legal remedy of 
mandamus.

If it be true that the remedy of injunction 
is an adequate remedy in the case at bar we 
contend that the remedy of mandamus should 
not be denied because of the existence of the 
equitable remedy. Eby v. School Trustees, 87 
Cal. 166; Santa Rosa Lighting Co. v. Wood­
ward, 119 Cal. 30.

In Eby v. School Trustees, supra, mandamus 
was granted notwithstanding the existence of 
the remedy of injunction. In that case a judg­



- 6 7 -

ment granting the writ of mandamus was af­
firmed and a petition for rehearing denied where, 
according to the petition, it was sought to com­
pel the Board of School Trustees to proceed with 
the erection of a school house on the site where 
the old school had been destroyed by fire. The 
defendants by their answer contended that the 
question of title could not be tried in a man­
damus proceedings. The lower court upon issu­
ing the writ commanded defendants to build the 
school house and to use and apply the money. 
The Court said, at page 177:

“ Perhaps the illegal diversion and use 
of the building fund might be enjoined by 
a Court of equity at the suit of a member 
of the District Corporation, but this would 
not be an adequate remedy, and even if it 
were, it is well settled that an equitable 
remedy does not deprive a party of the 
legal remedy of mandamus.”  (Italics ours.)



•68—

V.
A  Judgment Based on a Motion Excluding 

Evidence, After Evidence Has Been Re­
ceived, on the Ground That Mandamus 
Is Not the Proper Remedy Is in Error 
Where No Motion Has Been Made and 
the Facts Present a Proper Case for 
Relief.

The Court rendered judgment based on an 
order granting a motion to exclude all evidence 
on the ground that the first amended petition 
does not state a cause of action and that man­
damus is not the proper remedy. The judgment 
states that after the introduction of evidence 
on the 13th. 14th and 15 th days of September, 
1939, such a motion was made. [See Judgment, 
Clk. Tr. p. 105, lines 1 to 26; Supp. pp. 12, 13.]

We respectfully submit that no motion was in 
fact made upon which the Court could base a 
judgment. [Rep. Tr. p. 230, lines 8 to 22; Supp. 
p. 19.]

Obviously, the reporter’s record does not show 
that a motion to exclude evidence was made or 
the ground upon which the same was based. 
By the authorities the ruling of the Court was 
erroneous where no motion was properly made. 
Respondents did at the opening of the trial move 
to exclude the evidence, but the Court construed 
the motion as an objection to the introduction 
of evidence. [Rep. Tr. p. 4, line 4, to p. 6, line



— 69—

6; Supp. pp. 16, 17, 18.] We, however, under­
stood the motion and argument as a demurrer to 
the evidence, hence agreed that the questions 
would be raised on a motion for a nonsuit. No 
motion for a nonsuit was made.

It is apparent from the judgment that the mo­
tion for exclusion of evidence after evidence is 
introduced is intended as an independent motion, 
and does not relate back to the motion made at 
the opening of the trial. A motion is an applica­
tion made to the Court for an order, (People v. 
Ah Sam, 41 Cal. 645 ; Code of Civ. Proc., Sec. 
1003; People v. Von Bradenthal, 8 Cal. App. 
(2d) 404). From the language used by the trial 
court construing the motion at the opening of the 
trial as an objection to the introduction of any 
evidence, specially in the absence of any motion 
at the conclusion of the trial, at once it is ap­
parent that no independent motion was made 
upon which the Court could base the judgment.

Turning from the foregoing, we submit that 
although the Court reserved its ruling on the ob­
jection to the introduction of any evidence on 
the ground that the first amended petition does 
not -state a cause of action, and that mandamus 
is not the proper remedy, all the facts, includ­
ing three days of testimony, were before the 
Court. Since the Court was of the opinion that 
injunction is the proper remedy and bars the 
remedy of mandamus, it should have given such



- 7 0 -

relief as the record would warrant since public 
interests are involved.

The foregoing is the rule notwithstanding the 
general rule that where an alternative writ of 
mandate issues the petition is concluded by its 
terms, as this rule is not enforced regardless of 
circumstances, but in consonance with principles 
of fairness and justice. Assuming, but not ad­
mitting, that injunction is the proper remedy, to 
protect the rights and interest of the public 
from being assailed, the Court should have 
granted some relief. The Superior Court has 
jurisdiction to issue writs of injunction, prohibi­
tion, review, as well as writs of mandamus.

So far as the authorities are concerned the 
rule that petitioners are bound by the terms of 
the alternative writ is not an iron clad rule, and 
is not enforced regardless of circumstance. In 
the case at bar respondents have only raised a 
technical question of remedy. It does not appear 
that any injustice would have resulted to re­
spondents by the admission of petitioners to the 
bath houses and swimming pool at Brookside 
Park Plunge, whether it be by injunction or by 
mandamus.

There being no circumstances of injustice to 
respondents, the trial court should have granted 
some relief to petitioners in the absence of a mo­
tion for a nonsuit.



- 7 1 -

In short the Court having the record before it 
should have granted some relief to petitioners. 
The rule is not unusual but is elementary that 
where it is essential to public interest, the Court 
will give such relief as the record warrants.

In State Board of Equalisation v. Superior 
Court, 5 Cal. App. (2d) 374, the petitioners filed 
a petition for writ of mandamus to compel the 
respondent court to set aside the injunctions and 
to dismiss the action. The question of the 
proper remedy was raised and the Court said 
that the powers of the board are plainly defined 
by the State Liquor Control Act, and that the 
jurisdiction of the Court to issue an injunction 
is limited by Subdivision 4, Section 3423 of 
the Civil Code, and therefore the temporary in­
junctions issued by the respondent court in other 
cases were ineffectual and that a writ of prohibi­
tion would lie to prevent the further prosecution 
of the other actions seeking such relief. The 
Court agreed with the respondent’s contention 
that mandamus cannot as a rule, be employed as 
a corrective error, and that in the case prohibi­
tion instead of mandamus was the proper rem­
edy. In holding that the Court will give such 
relief as the record presented will warrant, said 
at page 678:

“ The members of the board are public 
officers with all the powers of police officers 
in enforcing the provisions of the act. (Sec. 
5, State Liquor Control Act.) It further



— 72—

appears that numerous cases involving facts 
similar to those pending in respondent court 
have been acted upon and are now elsewhere 
pending, and that it is essential to the pub­
lic interest that the questions here presented 
be speedily determined, and that the remedy 
by appeal would in the circumstances be 
inadequate.

The petitioners filed herein a petition by 
which a writ of mandate was sought to com­
pel respondent court to set aside the injunc­
tions and dismiss the said actions. As urged 
by respondents, mandate cannot as a rule be 
employed as a corrective error (People v. 
Sexton, 37 Cal. 532; Hayward v. Superior 
Court, 130 Cal. App. 607 [20 Pac. (2d) 
348]; Funfar v. Superior Court, 107 Cal. 
App. 488 [290 Pac. 626]; Hilmer v. Su­
perior Court, 220 Cal. 71 [29 Pac. (2d) 
175]), an exception being an error of ju­
dicial discretion, where in some instances 
the writ has issued. (16 Cal. Jur., Man­
damus, sec. 35, p. 823.) However, we are 
of the opinion that the facts— all of which 
are before us— show a lack of jurisdiction 
and make proper the issuance of a writ of 
prohibition, as it is well settled that in such 
cases the court will give such relief as the 
record presented will warrant (Swim v. Su-



— 73—

perior Court, 193 Cal. 539 [226 Pac. 2 ]; 
Finn v. Butler, 195 Cal. 759, 766 [235 Pac. 
992]; A. G. Col Co. v. Superior Court, 196 
Cal. 604 [238 Pac. 926]; Board of Trus­
tees v. State Board of Equalization, 1 Cal. 
(2d) 784 [37 Pac. (2d) 84]; Hale v. 
Barker, 70 Utah, 284 [259 Pacific 928]; and 
this may be done in a proper case notwith­
standing the general rule that where an al­
ternative writ of mandate issues the peti­
tioner is concluded by its terms, as this rule 
will not be enforced regardless of circum­
stances but in consonance with principles of 
fairness and justice. (16 Cal. Jur., Man­
damus, sec. 78, p. 883; Larkin v. Superior 
Court, 171 Cal. 719 [154 Pac. 841, Ann. 
Cas. 1917D, 670]; Swim v. Superior Court, 
supra; Le Clerg v. San Diego, 218 Cal. 672 
[24 Pac. (2d) 819].)

It is therefore ordered that a peremptory 
writ of prohibition issue, requiring respond­
ent court to refrain from further proceed­
ings in the actions mentioned.

A  petition by respondents to have the 
cause heard in the Supreme Court, after 
judgment in the District Court of Appeal, 
was denied by the Supreme Court on May 
16, 1935.”



— 7 4 -

Conclusion.

It has been shown herein that the first amended 
petition states a cause of action and that the 
remedy of mandamus is the proper and appro­
priate remedy. The rights of petitioners are per­
sonal ones. That the remedy of injunction 
would not be a plain, speedy, and adequate rem­
edy by which petitioners may enforce such rights, 
as the remedy of injunction does not issue for 
the enforcement of naked personal rights unless 
there are property rights or rights incident there­
to, upon which such relief may be based. We 
have endeavored to show that the remedy of in­
junction is further objectionable because to en­
join discrimination would not be as beneficial, 
adequate, speedy and convenient as mandamus 
to compel the admission of petitioners to the 
bath houses and swimming pool at Brookside 
Park Plunge at all times when the same is open 
to the public. The relief by injunction, there­
fore, would not be as effectual and speedy as the 
relief sought.

If, however, the remedy by injunction is an 
adequate remedy, it is not a bar to the legal 
remedy of mandamus.

It is at once apparent from the facts in this 
case that the rights of citizens and taxpayers are 
involved and that it therefore being a case of 
great general importance, the rule that petition­
ers are bound by the terms o f the alternative



•75-

writ would not apply where the Court had the 
petition, answer and evidence, both oral and 
documentary, before it and where it appeared 
that no injury could result to respondents, who, 
as public officers deny petitioners equality of 
right in the use and enjoyment of the facility 
a municipal corporation has afforded its citizens 
and where it is respondents’ duty to afford the 
facility to petitioners on the basis of equality 
of right. The right is personal and not de­
pendent upon the volume of demand.

There being no question of consonance of 
fairness and justice to respondents by which the 
Court should bind petitioners to the terms of 
their alternative writ, but one merely of remedy, 
judgment should not have been rendered exclud­
ing the evidence because the remedy of man­
damus is not the proper remedy, if that is a 
fact. And, further, without the making of a 
motion after the introduction of evidence, judg­
ment should not have been rendered thereon. 
The evidence would remain in the record. We 
have pleaded and proved our case, and in addi­
tion made a motion for a new trial which has 
been denied by the Court.

We earnestly and respectfully seek a reversal 
of the judgment upon the grounds which have 
been discussed.

Respectfully submitted,
T h o m a s  L. G r i f f i t h , J r ., 

Attorney for Petitioners and Appellants.









1 S U P P L E M E N T .

Clerk’s Transcript.

[Clk. Tr. p. 55, lines 1 to 26]:

In the Superior Court of the State of Cali­
fornia, in and for the County of Los Angeles.

2

3

Charles Stone, William J. Brock, W. H. Har­
rison, James Price, Frederick M. James, Jr., and 
Frederick D. Smith, petitioners, vs. Board of 
Directors of the City of Pasadena, a municipal 
corporation; and Edward O. Nay, Milton S. 
Brenner, Robert E. Dawson, Carl G. Wopschall, 
Albert I. Stewart, G. L. Schuler and Charles C. 
Hamill constituting the members of the Board; 
W. H. Nicholas, Superintendent of Parks of the 
City of Pasadena; C. W. Koiner, City Manager 
of the City of Pasadena; Frank Hale, John Doe, 
Richard Roe, One Doe, Two Doe and Three Doe, 
respondents. No. 442426.

F ir s t  A m e n d e d  P e t it io n  fo r  W r i t  of  
M a n d a m u s .

To the Honorable Judges of the Superior Court 
of the State o f California, in and for the 
County of Los Angeles:

Your petitioners herein respectfully apply for 
a writ of mandamus by this their first amended 
petition filed by leave of court, and in this behalf 
set forth the following facts and causes for issu­
ance of the writ, namely:



— 2 —

4 I.
That at all the times herein mentioned the City 

of Pasadena was and now is a California munici­
pal corporation organized and existing under and 
by virtue of a charter pursuant to the provisions 
of section 8, article X I of the Constitution of the 
State of California adopted January 24, 1901, 
[Clk. Tr. p. 56, lines 1 to 26] : 
and amended on various dates subsequent thereto.

II.
5

That at all times herein mentioned respondents 
Edward O. Nay, Milton S. Brenner, Robert E. 
Dawson, Carl G. Wopschall, Albert I. Stewart,
G. L. Schuler and Charles C. Hamill were and 
now are the duly elected, qualified and acting 
members of the Board of Directors of the City 
of Pasadena, a municipal corporation.

III.
That at all times herein mentioned respondent

6 C. W. Koiner was and now is the duly appointed, 
qualified and acting City Manager of the City of 
Pasadena, a municipal corporation.

IV.
That at all times herein mentioned respondent 

W. H. Nicholas was and now is the duly ap­
pointed, qualified and acting Superintendent of 
Parks of the City of Pasadena, and respondents 
Frank Hale and John Doe are employees of said 
City of Pasadena working under the orders and



— 3—

7  direction of respondents W. H. Nicholas, Super­
intendent of Parks, and C. W. Koiner, City 
Manager of said city.

V.
That your petitioners are unaware of the true 

names or status of respondents John Doe, Rich­
ard Roe, One Doe, Two Doe and Three Doe and 
therefore sue them by such fictitious names and 
pray that when ascertained their true names and 
[Clk. Tr. p. 57, lines 1 to 26] :

°  status be incorporated by appropriate amendment.

VI.
That at all times herein mentioned said City of 

Pasadena, a municipal corporation, was and now 
is the owner of, and maintains and operates cer­
tain bathhouses and a swimming pool commonly 
known and described as Brookside Park Plunge, 
and located in Brookside Park, in the City of 
Pasadena, County of Los Angeles, State of 

9 California.
VII.

That said City of Pasadena maintains and 
operates said bathhouses and swimming pool and 
keeps the same open for the public recreation and 
amusement during the summer months of each 
year.

VIII.
That said City of Pasadena maintains, operates 

and manages said bathhouses and swimming pool



4

10 above described by and through respondents, its 
duly elected and appointed, qualified and acting 
officers, agents and employees.

IX.
That for more than five years last past peti­

tioners have been and now are domiciled in and 
residents of said City of Pasadena, State of Cali­
fornia, United States of America, are qualified 
electors therein, are citizens of the City of Pasa- 
dena, State of California, United States of 
America, are over the age of twenty-one years 
and members of the Negro race.

[Clk. Tr. p. 58, lines 1 to 26] :

X.
That all of your petitioners reside within one 

mile of the said Brookside Park Plunge. That 
petitioner W. H. Harrison for many years last 
past has owned and occupied property situated at 

12 1330 Lincoln avenue, Pasadena, California, and 
pays taxes thereon; that he is the father of two 
minor children, to-wit: Timothy Harrison and 
Philip Harrison; that said minors are now and 
for have been for more than fifteen years re­
siding with said petitioner. That petitioner James 
Price for many years last past has resided and 
does now reside at 538 Hammond street, Pasa­
dena, California, and owns said residence and pays



— 5—

13 taxes thereon. That petitioners W. H. Harrison 
and James Price as taxpayers contribute to the 
financial support and maintenance of said bath­
houses and swimming pool above mentioned. 
That all of your petitioners as citizens and tax­
payers are beneficially interested in the privileges, 
management and control of said bathhouses and 
swimming pool and under the jurisdiction of the 
above named respondents.

14 XI.
That all of your petitioners are of clean and 

moral habits; none of them is suffering from 
contagious or infectious disease or has any physi­
cal or mental defect or disability such as to make 
his admission to and use of said bathhouses and 
swimming pool inimical, harmful or detrimental 
to the health, welfare or safety of other users 
thereof, or do said petitioners have any disability 
[Clk. Tr. p. 59, lines 1 to 26] : 
at all.

XII.
That your petitioners reside within one mile 

from said Brookside Park Plunge and as citizens, 
taxpayers and resident members of the public 
have the right to admission to said bathhouses 
and swimming pool and the right to use the same 
at all times the same are open to the public.



16 XIII.
That there is no other desirable, convenient or 

close swimming pool open to petitioners within 
the limits of said City of Pasadena, or nearer 
than fifteen miles from petitioners’ place of resi­
dence.

XIV .

That respondents, as officers, agents and em- 
y j  ployees of said City of Pasadena, unlawfully pre­

clude petitioners from the use and enjoyment of 
said right to use said bathhouses and swimming 
pool at all times when the same is open to other 
members of the public and have denied and con­
tinue to deny and now do deny admission thereto 
to petitioners and other members of the Negro 
race except upon one day of each week, to-wit—  
Tuesday, designated by respondents as “ Interna- 
tional Day,”  and further said respondents and 
each of them assert and state that such denial of 
admission is based solely upon the fact that peti­
tioners and other members of the Negro race are 
members of the Negro race, all of which is un­
lawful discrimination, distinction and restriction 
[Clk. Tr. p. 60, lines 1 to 25] : 
in violation of the 14th Amemdment, Sec. 1, of 
the Constitution of the United States of Amer-



19 ica; Article I, Sec. 21, of the Constitution of the 
State of California and is contrary to Section 51 
of the Civil Code of the State of California.

XV.
That your petitioners and other members of 

the Negro race at divers times too numerous to 
mention have sought, and more particularly on 
the 11th day of June, 1939, at or near the hour 
of 2 p. m. of said day, and during the hours when 
said Brookside Park Plunge was open for public 
use, permission to enter said swimming pool but 
respondents denied petitioners the right to enter 
said swimming pool, asserting and stating that 
such denial of admission is based solely upon the 
fact that petitioners are members of the Negro 
race.

Petitioners allege in this connection that there- 
21 after and on the 20th day of June, 1939, pro­

tested to the above named respondents said re­
fusal and demanded admission of petitioners to 
the Brookside Park Plunge at all times the same 
is open to the public, to all of which said re­
spondents did then and there refuse and still do 
fail, refuse and neglect to admit your petitioners 
to the use and enjoyment of said bathhouses and 
swimming pool at all times when the same is open 
to the public.



— 8—

22 [Clk. Tr. p. 61, lines 1 to 26] :

XVI.
That petitioners and other members of the 

Negro race are denied the use and enjoyment of 
said bathhouses and swimming pool as aforesaid, 
notwithstanding' the other fraction of the public 
are allowed the use and enjoyment of said bath­
houses and swimming pools at all times when the
same are open. That by reason thereof the in-

23 jury to petitioners is continuous, and is great and 
irreparable and is calculated to affect their health 
and rights as citizens of the United States of 
America and of the State of California.

XVII.
That respondents are charged by Article 14, 

Section 1, of the Constitution of the United 
States, and Article I, Section 21, of the Constitu-

24 tion of the State of California, and Section 51 
of the Civil Code of said state with the duty to 
afford equal accommodations, advantages and 
privileges to citizens within the jurisdiction of 
the State of California, and further to the equal 
protection of the laws; that petitioners are en­
titled to such equal accommodations, advantages 
and privileges and to equal rights and treatment 
with other persons to the use and enjoyment of



-9—

25 said bathhouses and swimming pool at all times 
but respondents have denied as aforesaid and do 
now deny petitioners equal accommodations, ad­
vantages and privileges, and to the equal protec­
tion of the laws in the use and enjoyment of said 
bathhouses and swimming pool at the Brookside 
Park Plunge at all times when the same is open 
[Clk. Tr. p. 62, lines 1 to 14] :

to the public.
26

XVIII.
That petitioners have no plain, speedy and 

adequate remedy in the ordinary course of law 
by which they can enforce their rights unlawfully 
denied them by respondents.

Wherefore, petitioners pray that there be 
issued against said respondents a writ of man­
damus to the end 

27 (a) That the petitioners be admitted to the use 
and enjoyment of the bathhouses and swimming 
pool at Brookside Park Plunge at all times when 
the same are open to the public;

(b ) That petitioners have such other and fur­
ther relief as may be proper.

T h o m a s  L. G r i f f i t h , Jr., 

Attorney for Petitioners.



— 10—

28 [Clk. Tr. p. 63, lines 1 to 24] :

State of California, County of Los Angeles— ss.
Charles Stone, William J. Brock, W. H. Har­

rison, James Price, Frederick M. James, Jr., and 
Frederick D. Smith, being by me first duly sworn, 
depose and say, each for himself and not for 
each other, that they are the petitioners in the 
above entitled matter; that they have read the 
foregoing first amended petition for writ o f man­
damus and know the contents thereof and that

29 the same is true of their own knowledge, except 
as to the matters which are therein stated upon 
information or belief, and as to those matters that 
they believe it to be true.

W i l l i a m  J. B r o c k . 

C h a r l e s  S t o n e .

F r e d e r ic k  M. Ja m e s , J r . 
F r e d e r ic k  D. S m i t h . 
Ja m e s  P r i c e .
W . H. H a r r is o n .oU

Subscribed and sworn to before me this 14th 
day of July, 1939.

(Notarial Seal) Z e l l a  M. T a y l o r ,

Z e l l a  M. T a y l o r ,
Notary Public in and for the County of Los 

Angeles, State of California.
My commission expires April 1, 1940.

[Clk. Tr. p. 64, lines 9 to 13] :
Endorsed: Filed Jul. 17, 1939. L. E. Lamp- 

ton, county clerk; by J. E. Shaw, deputy.



— 11—

31 [Clk. Tr. p. 101, lines 1 to 21] :

July 24, 1939. Department 34.

Present: Hon. Emmet H. Wilson, Judge.

Charles Stone et al. vs. Board of Directors of 
the City of Pasadena et al. 442426.

M inute Order.

Alternative writ of mandate, motion to strike
32 from amended petition, motion to quash writ, 

demurrer of Superintendent of Parks et al. and 
demurrer to Board of Directors come on for 
hearing. Thomas L. Griffith, Jr., appearing as 
attorney for the plaintiffs; Harold Huls, City 
Attorney, for the City of Pasadena, and A. L. 
Wirin as arnicas curiae for the American Civil 
Liberties Union. Demurrer of Board of Direc­
tors is sustained; 5 days allowed to amend. De-

33 murrer of Superintendent qf Parks et al. is over­
ruled; defendant named is given 10 days to 
answer. Motion to strike is denied. Motion to 
quash is granted as to the Board of Directors and 
denied as to the Superintendent of Parks et al. 
Alternative writ is transferred to Department 1 
and continued to time of trial. Notice waived.



— 12—

3 4  [Clk. Tr. p. 105, lines 1 to 26] :

[T itle of Court and Cause.]

Judgment.

The above entitled cause having come on for 
trial in Department 30 of the above entitled court, 
on the issues raised by the first amended petition
for writ of mandamus, and the answers and re-

35 turn thereto of the respondents W. H. Nicholas, 
Superintendent of Parks of the City of Pasadena; 
C. W. Koiner, City Manager of the City of Pasa­
dena, and Frank Hale and H. B. Rankin on the 
11th day of September, 1939, before the Honor­

able Clement D. Nye, Judge of the above entitled 
court, sitting without a jury; Thomas L. Griffith,

Jr., attorney, appearing for the petitioners; Har-
36

old P. Huls, City Attorney, and Thomas W. Le 
Sage, Deputy City Attorney, attorneys appearing 
for respondents, and said cause having been con- 
[Clk. Tr. p. 106, lines 1 to 26] : 

tinned on said 11th day of September to the 13th 

day of September, and said respondents having 
at said time and prior to the introduction of any 
evidence, oral or documentary, objected to the



— IS

37 introduction of any evidence on the ground that 
said first amended petition did not state a cause 
of action and that mandamus is not the proper 
remedy in the premises, and ruling on said objec­
tion having been reserved by said court; and 
thereafter, on the 13th, 14th and 15th days of 
September, 1939, and subject to ruling on said 
objection, evidence, both oral and documentary,

38 having been introduced, and thereafter a motion 
to exclude all evidence on the above grounds 
having been made, and the cause having been 
submitted for decision upon briefs thereafter duly 
filed by the respective parties, and the court hav­
ing thereafter sustained respondents’ objection to 
the introduction of any evidence on said grounds, 
and having granted respondents’ motion to ex-

39 dude evidence on the same grounds, and the 

court by reason thereof having ordered judgment 

for respondents:

Now, therefore, good cause appearing, it is 
ordered, adjudged and decreed that judgment be 
entered in favor of respondents W. H. Nicholas, 
Superintendent of Parks of the City of Pasadena; 

C. W. Koiner, City Manager of the City of



— 14—

40 Pasadena; Frank Hale and H. B. Rankin, sued 
herein as John Doe, and that petitioners take 
nothing in said cause.

It is further ordered, adjudged and decreed 
that respondents do have and recover from said 
[Clk. Tr. p. 107, lines 1 to 14] : 

petitioners their costs and disbursements accrued 
in said action amounting to the sum of eighteen

41 & 75/100 dollars ($18.75).

Dated this 3rd day of January, 1940.

Clement D. Nye, 
Judge of the Superior Court.

Endorsed: Filed Jan. 3, 1940. L. E. Lamp- 
42 ton, county clerk; by S. Zebrack, deputy.

Entered Jan. 4, 1940; docketed Jan. 4, 1940, 
book 1054, page 43, by R. Hunter, deputy.



— 1 5 —

43 Reporter’s Transcript.

[ Rep. Tr. p. 3, lines 1 to 26] :

September 13, 1939.

The Court: Stone against Board of Directors 
of the City of Pasadena.

Mr. Griffith : Ready for petitioners.
Mr. Huls: Ready for respondents.

, ,  The Court: How much time do you anticipate
44

in this matter, gentlemen? The reason I ask that 
question is this, I have read this file very care­
fully and there doesn’t seem to be an awful lot of 
dispute as to the facts.

Mr. Huls: There are a few disputed matters.
The Court: There is only one important one

that I see that stands out, as to how this swim­
ming pool is maintained and operated, whether by

45 the taxpayers or self-supporting. It occurs to 
me it is going to be a question of law. It is the 
contention of the director of playgrounds or 
superintendent of playgrounds, whatever his des­
ignation may be, that it is within the administra­
tive policy and right of the City of Pasadena to 
conduct this swimming pool and plunge as they 
are conducting it. That resolves itself into a 
question of law. It occurs to me if you could



— 1 6 —

46 enter into a written state of facts we might sub­
mit the matter on briefs. Do you think there is 
any possibility of that ?

Mr. Griffith: To answer Your Honor it is
almost impossible. They deny there is an issue 
raised.

(Discussion.)

The Court: Well, you may proceed with your
47 evidence, Mr. Griffith.

[Rep. Tr. p. 4, lines 4 to 26] :

Mr. Griffith: We might dispose by stipulation 
that the picture may go into evidence and the 
charter which I have here, counsel furnished me 
a copy of it, might go into evidence, and like­
wise—

Mr. Le Sage: If Your Honor please, we in-
48

tend to make a brief argument in support of a 
motion for excluding all evidence on the ground 
the petition does not state facts sufficient—

The Court: I think this is a proper time for
that.

Mr. Griffith: That has all been gone into by
Judge Emmet Wilson on two separate occasions, 
but if counsel is ready for that motion—



49  Mr. Huls: Our motion has not been before
the court.

The Court: State your motion and the
grounds at this time and we will hear argument 
on it.

Mr. Le Sage: This motion is being made to
the introduction of any evidence, moving to ex­
clude all evidence in support of the petition on
the ground that the facts stated in the first

50 amended petition for the alternative writ do not 
state facts sufficient to constitute a cause of ac­
tion, or a cause of action for a writ of mandamus, 
and that it appears in the petition that mandamus 
is an improper remedy. The case is barred for 
that particular relief sought by the petitioners. 
Now, we submit, Your Honor, that the proper 
and appropriate and adequate remedy in the case 
at bar is an injunction directed against the re- 
(Rep. Tr. p. 5, lines 1 to 26]: 
sponsible officers of the city enjoining them from 
their alleged discrimination against the petition­
ers, and if our premise in that connection is cor­
rect then petitioners have an adequate and appro­
priate remedy in equity. The authorities agree 
that where there is an adequate and appropriate 
remedy the writ of mandamus must be denied.

(Argument.)

— 17—





2nd Civil N o.

In the District Court of Appeal
S E C O N D  A P P E L L A T E  D I S T R I C T

State of California
CHARLES STONE, W IL L IA M  J. BROCK, 

W. H. H ARRISON, JAMES PRICE, FRED­
ERICK  M. JAMES, JR., FREDERICK  D. 
SM ITH,

Petitioners and Appellants, 

vs.

BOARD OF DIRECTORS OF TH E CITY OF 
PASADENA, a municipal corporation; and 
ED W AR D  O. NAY, M ILTON  S. BRENNER, 
RO BE RT E. DAW SON , CARL G. W O P- 
SCHALL, ALB ERT I. STEW ART, C. L. 
SCH ULER and CHARLES C. HAM MILL, 
constituting the members of said Board; W. H. 
NICH OLAS, Superintendent of Parks of the City 
of Pasadena; C. W. KOINER, City Manager of 
the City of Pasadena; FRANK HALE, JOHN 
DOE and RICH ARD  ROE,

Defendants and Respondents.

APPEAL FROM THE SUPERIOR COURT OF LOS ANGELES CO. 

HON. CLEMENT D. NYE, JUDGE.

A P P E L L A N T S’ REPLY BRIEF.

T homas L. Griffith , Jr.,
1105 East Vernon Avenue, Los Angeles, 
Attorney for Petitioners and Appellants.

Parker & Baird Company, Law Printers, Los Angeles.



WBk

-

f  *  “ * ' i * S  -  j

- ‘ M l

1  ■ ~ *• *  - » & -
' , M

--'■■■ ■■' " . . ■ - ' . • ..; - * -  -

' V ■ - ' ;5i' : ■ •

g ,v  r : --- . ,. m » ;_

■
;  WKm '

.

«  *  ' * > •■ -

*±. - ~ " ■ •*• ■ J * : - * \





11.

T A B L E  O F  A U T H O R I T I E S  C IT E D .

Cases. page

A tch ison , T o p e k a  & Santa F e  v. M atthew s, 174 U . S.

96 ................................................................................................. 37, 38

B ohen , E x  parte, 115 Cal. 37 2 .................................................  44

B osw orth  v. State U n iversity , 166 K y . 4 3 6 ...................... 21

B oy le  v. State T reasu rer, 24  M ich . 4 6 8 .............................  27

C ity  o f  L o s  A n g e les  v. S u perior C ourts, 2 Cal. (2 d )

138.........................................................................................................  16

C ity  o f Sacram ento v. S w anston , 29  Cal. A p p . 21 2 .— 44

C oom b s v. Sm ith, 17 Cal. A p p . (2 d )  4 5 4 ........................  29

C ou n ty  o f  M on terey  v. A b b ott, 77 Cal. 541.... ................. 6

C um m ings v. R ich m on d  C oun ty  B d. o f  E ducation ,

175 U . S. 528 .............................................................................4 , 24

D aniels, E x  parte, 183 Cal. 63 6 .........................................—  15

D en n y  v. State, 144 In d . 503 .................................................... 21

E rie  R . R . C o. v. M a y or  & A ld erm a n  o f  Jersey  C ity ,

84 A tl. 6 97 ..........................................   31

G ilbert v. P eck , 162 Cal. 54 ................   5

G on g  L u m  v. R ice , 275 U . S. 78, 4 8  S. Ct. 91, 72

L . E d . 172.......................................................................................  25

G riffin  v. C ity  o f L o s  A n g e les , 134 Cal. A p p . 76 3 .........  46

G uinn v. U n ited  States, 2 38  U . S. 34 7 ................................ 39

H elm er v. S u perior C ourt, 4 8  Cal. A p p . 140.............. . 10

H ersh ey  v. R eclam ation  D istrict, 162 Cal. 4 0 3 ................. 28

H itch cock , In  re, 34 Cal. A p p . I l l .......................................... 46

H oltu m  v. G reif, 144 Cal. 527 .................................................  28

Joh nson  v. F ontana  F ire  P rotection  D istrict, 99  Cal.

Dec. 308 .......................................................... 26, 54



111.

PAGE
Key System Transit Co. v. City of Oakland, 124 Cal. 

App. 733 .......................................................................  11

Lane v. Wilson, 307 U. S. 268..................................... 39

Maddox v. Neal, 55 Am. Rep. 540...............................  24

Marysville v. County of Yuba, 1 Cal. App. 628...........  11
McCabe v. Atchison, Topeka & Santa Fe, 235 U. S.

151 ..................................................................4, 24, 40, 55
McCarthy v. Board of Fire Commissioners, 37 Cal.

App. 495 ........................................................................ 8

McGinnis v. City of San Jose, 153 Cal. 711.................  18
Mountain Timber v. Washington, 243 U. S. 219.........  37

Nessbit v. Superior Court, 214 Cal. 1...........................  29

Pasadena v. Charleville, 215 Cal. 384...........................  12
Pearson v. Murray, 103 A. L. R. 706....................... 20, 38
People v. City of Long Beach, 155 Cal. 604...............  12
People v. City of San Buenaventura, 213 Cal. 637.... 23
People v. Land Office Comrs., 149 N. Y. 26.............  21
People v. Loucks, 28 Cal. 68.........................................  28
People v. McKean, 76 Cal. App. 114......    16

Pierre v. Louisiana, 306 U. S. 354.................................  39

Railroad Co. v. Brown, 17 Wall. 447...........................  19
Richards v. Wheeler, 10 Cal. App. (2d) 114...............  12
Ross v. O ’Brien, 1 Cal. App. (2d) 496.......................  29

Sacramento O. etc. Home v. Chambers, 25 Cal. App.
536...................................................................................  42

Smith v. Cahoon, 283 U. S. 553...................................  46
State of California v. Poulterer, 16 Cal. 515...............  6

Strauder v. West Virginia, 100 U. S. 303...................  39



Sullivan v. Shanklin, 63 Cal. 251.......... .........................

Teachout v. Bogy, 175 Cal. 481......................................
Tilden v. Blood, 14 Cal. App. (2d) 407....................22,
Trux v. Corrigan, 257 U. S. 312........................21, 37,

Wilks County v. Call, 173 U. S. 461............................
Witmore v. Brown, 207 Cal. 473....................................

Yick W o v. Hopkins, 118 U. S. 356..........................21,

Statutes.

California Constitution, Art. I, Sec. 11..........................
California Constitution, Art. I, Sec. 21..........................

...................................................... .............. 3, 4, 40, 41,

Civil Code, Sec. 5 1 ................................6, 7, 9, 10, 13,
Civil Code, Secs. 51 to 54.............................................. 4,
Civil Code, Sec. 52........................................6, 7, 9, 35,
Civil Code, Sec. 60........................................................ .

Code of Civil Procedure, Sec. 4....... ...............................
Code of Civil Procedure, Sec. 953a............... ..........52,
Code of Civil Procedure, Sec. 1086.—............................
Code of Civil Procedure, Sec. 1159 et seq....................

Pasadena City Charter, Art. I, Sec. 2, Subsec. 9.........
Pasadena City Charter, Art. I, Sec. 2, Subsec. 19.......

........................................................................ 21, 22, 45,

Political Code, Sec. 2289, Subsec. 4................................

Statutes of 1897, p. 137....................................................
Statutes of 1905, p. 533....................................................

United States Constitution, 14th Amendment...............
........................................................3, 4, 9, 13, 21, 29,

20

22
23
46

21

23

39

44

42

16
7

36

36

13
53

26
5

39

55

42

4
4

41



V.

T extbooks and E ncyclopedias. page

11 American Jurisprudence 686................................... 21

1 California Jurisprudence 382...................................  6
5 California Jurisprudence 816...................................  44

10 California Jurisprudence 693...................................  40
21 California Jurisprudence 872...................................  12
23 California Jurisprudence 778...................................  8

38 Corpus Juris 584.........................................................  18
38 Corpus Juris 594 to 597.............................................  21

50 Lawyers’ Reports, Annotated (N. S.) 1156...........  36

20 Ruling Case Law, Civil Rights.................................  20





In the District Court of Appeal
S E C O N D  A P P E L L A T E  D I S T R I C T

State of California

CHARLES STONE, W IL L IA M  J. BROCK, 
W . H. H ARRISON, JAMES PRICE, FRED­
ERICK  M. JAMES, JR., FREDERICK D. 
SM ITH,

Petitioners and Appellants,

BOARD OF D IRECTORS OF TH E CITY OF 
PASADENA, a municipal corporation; and 
ED W AR D  O. NAY, M ILTON  S. BRENNER, 
RO BE RT E. DAW SON, CARL G. W O P- 
SCHALL, A L B E R T  I. STEW ART, C. L. 
SCH ULER and CHARLES C. HAM MILL, 
constituting the members of said Board; W. H. 
NICH OLAS, Superintendent of Parks of the City 
of Pasadena; C. W. KOINER, City Manager of 
the City of Pasadena; FRANK HALE, JOHN 
D OE and RICH ARD  ROE,

Defendants and Respondents.

A P P E L L A N T S ’ RE PLY  BRIEF.

Preliminary Statement.

One general observation may here be made 
with regard to the seriousness of the arguments 
advanced by respondents that injunction is the 
proper, appropriate and adequate remedy. By



express admission respondents deny that a writ 
of injunction would issue; in fact, they infer 
that appellants have no remedy whatsoever.

The respondents state:
. . Of course in arguing that peti­

tioners’ appropriate remedy is in equity, and 
that the existence of such a remedy bars the 
present action, we do not infer that any

WRIT WOULD ISSUE ON THEIR BEHALF. It 
would be necessary for them to establish a 
substantive right thereto. In fact, as we 
pointed out in Point 1, supra, we believe 
that petitioners’ exclusive remedy is an ac­
tion for damages under Section 52 of the 
Civil Code, and that the courts will not spe­
cifically enforce either by mandamus, injunc­
tion or otherwise alleged violations of civil 
rights acts . . .”  (Resp. Br. p. 46; pp.
14 to 21.)

— 2—



— 3—

Appellants Respectfully Present Herewith a 
Seriatim Reply to the Arguments Con­
tained in Respondents’ Brief.

1. Reply to Respondents’ Point 1 of A, 
Part I.

1. Section 51 of the Civil Code does not 
make Section 32 the exclusive remedy, 
Section 52 of said code does not take away 
pre-existing remedies by implication where 
the petition alleges a cause of action inde­
pendent o f said code provision.

Counsel for respondents have cited authorities 
in support of the principle that where a remedy 
is given by statute the remedy so provided must 
be pursued. This argument is not applicable to 
the case at bar and it ignores the essential fea­
tures and powers conferred under the 14th 
Amendment of the United States Constitution 
and of Article I, Section 21 of the California 
Constitution. The rule has been acquiesced in 
and acted on as settled law, that where public 
authorities illegally discriminate between persons 
in similar circumstances, the denial of justice is 
within the prohibition of the Constitution and 
mandamus will lie. Moreover, relief may be 
obtained by mandamus proceedings against pub­
lic officers, who in the discharge of duties im­
posed upon them by law discriminate between



4

those they are bound to serve by reason of their 
color. See McCabe v. Atchison, Topeka & Santa 
Fe, 235 U. S. 151 (holding an injunction was 
not the proper remedy). Also Cummings v. 
Richmond County Bd. of Education, 175 U. S. 
528,

The 14th Amendment of the United States 
Constitution was declared ratified July 28, 1868. 
Sections 51 to 54 of the Civil Code were all 
adopted at the same time by the same legislature 
in 1905. (Stats. 1905. p. 533.) Previous there­
to, there had been a general law contained in 
Statutes of 1897 at page 137. It may, there­
fore, be readily observed, that prior to the en­
actment of Sections 51 to 54 there was con­
ferred under the power contained in the 14th 
Amendment of the United States a right of 
action for the denial of justice.

Respondents have not cited authority in sup­
port of their argument that Section 52 bars a 
right of action under Article 14 of the United 
States Constitution, Article I, Section 21 of the 
California Constitution, and Section 51 of the 
Civil Code. They have not established that 
where, as here, the remedy by mandamus is an 
adequate and speedy and more appropriate rem­
edy for the relief soug’ht, that under Section 51 
or Section 52 appellants are required to proceed 
under Section 52 of said code. (See authorities 
cited at pages 63 to 65 of Appellants’ Opening 
Brief.) The rule is that where a statute pur­



ports to confer a right which was in existence 
prior to its enactment, and prescribes the pro­
cedure to be pursued, that procedure is merely 
cumulative and the party upon whom such pre­
existing right is apparently conferred may, at 
his option, pursue the steps prescribed by statute 
or adopt the pre-existing remedy. This is the 
rule found in the Estate of Ward, and cited by 
respondents. This principle is stated in Gilbert 
v. Peck. 162 Cal. 54, where defendant leased 
certain premises to the plaintiff, who, it was 
alleged, conducted a nuisance thereon. Defend­
ant landlord entered upon the premises and re­
moved plaintiff’s personal properties thereon, and 
for this entry plaintiff sues for damages. At the 
trial defendant objected to the introduction of 
any evidence on the ground that plaintiff’s ex­
clusive remedy was an action for forcible entry 
and detainer under the provisions of Section 
1159 et seq. of the Code of Civil Procedure. The 
Court said at page 59:

“ If there were also allegations of facts 
which would have warranted a summary 
proceeding under the code sections referred 
to, this would not bar the plaintiff of her 
right to maintain an ordinary action for 
damages. The code itself does not under­
take to make the forcible entry proceeding 
the exclusive remedy where the facts show 
a cause of action independent of the code

— S—



provisions are alleged, and we are cited to 
no authorities supporting appellant’s claim 
in this regard.”

See also:
County o f Monterey v. Abbott, 77 Cal. 

541";
1 Cal. Jur. 382;
State o f California v. Poulterer, 16 Cal. 

515.

It may be stated categorically that neither 
Section 51 nor 52 undertake to make Section 52 
the exclusive remedy where the petition states 
facts showing a cause of action independent of 
the code provisions.

It is to be remembered that the appellants are 
not seeking damages “ in an amount not less 
than $100.00,” but by mandamus seek to enforce 
the equality of their legal right to the enjoyment 
of the facility which respondents have under 
their control.

It is our opinion the legislature intended that 
Section 51 should be separate and independent 
of the rights conferred under Section 52.

Under Section 51 all citizens are entitled to 
the full and equal accommodations and privileges. 
No remedy whatsoever is prescribed for the vio­
lation of the right in Section 51.



— 7—

Section 52 lists the same places that are listed 
in Section 51 of the Civil Code, yet Section 52 
in addition to restating the places listed in Sec­
tion 51, also states that damages may be recov­
ered for the denial of the full occommodations 
and privileges and of those mentioned in Section 
51. Sections 51 to 54 were all adopted at the 
same time by the same legislature and it would 
seem that had it been the intention of the legis­
lature that Section 52 prescribe the remedy for 
Section 51, it would have adopted the same 
structure it followed in prescribing damages for 
violation of Section 53 by Section 54. In Sec­
tion 54 there is no restatement of the places 
listed in Section 53, and Section 53 does not 
confer any right upon all citizens to the full and 
equal accommodations as they are set out in 
Section 51.

It is also to be noted that Section 51 does not 
mention discrimination whatsoever, while Sec­
tion 52 specifically declares against discrimina­
tion on the ground of color. An action could 
be brought under Section 51 without discrimina­
tion on the ground of race or color.

Sufficient has been said to indicate the grave 
and radical differences in language between Sec­
tions 51 and 52 of the Civil Code. The only pos­



— 8 —

sible conclusion that can be drawn from the dif­
ference of the language of the statute is that the 
legislature used the respective terms and words 
and structure it did with deliberate intent, that 
different restrictions should be placed upon the 
different sections. When different language is 
used, a different intent is indicated.

It is the rule that where there are material 
changes or material differences in the language 
used in different sections of the statute, a dif­
ferent legislative intent is presumed.

23 Cal. Juris. 778;

McCarthy v. Board of Fire Commis­
sioners, 37 Cal. App. 495.

In McCarthy v. Board of Fire Commissioners, 
supra, the Court said at page 497:

“When different language is used in the 
same connection in different parts of the 
statute, it is presumed the legislature in­
tended a different meaning and effect . . . 
and it has similarly been held that a change 
of legislative purpose is to be presumed 
from a material change in the wording of a 
statute. This rule is applicable likewise to 
material changes between the language used 
in different sections of the same statute.”

The variations and essential differences of 
Sections 51, 52 and 53 must be taken as indi­
cated, a different legislative intent.



-9—

At once it becomes apparent that there was 
a different specific legislative intent in Sections 
51 and 52. There is a specific legislative intent 
in Section 51 to give full advantages and privi­
leges to all citizens. The state is prohibiting 
within its jurisdiction what the 14th Amendment 
of the United States Constitution prohibits the 
states from doing. (See Greenberg v. Western 
Turf Association, cited at pages 26 and 27 of 
Appellants’ Opening Brief.) Section 51 is en­
tirely silent upon the mode ■ of procedure and 
one fails to find any implication in Section 51 
that a party whose rights have been violated must 
follow the procedure of Section 52.

The specific intent evidenced in Section 52 of 
said code gives damages for denial in respect to 
the admission of any citizen to the places listed 
in Section 52 because of discrimination.

In Section 51 the legislature has required that 
full and equal accommodations and facilities be 
made. The language regarding discrimination, 
admittance and damages is entirely lacking. We 
cannot refrain from stating at this point that the 
issue here is not one for damages, but is an 
action with respect to the enforcement of equal 
treatment of citizens, taxpayers, and resident 
members of the public.

We believe, therefore, that Section 52 may 
provide the sanction for Section 51, but it is not 
exclusive of all other remedies that a person may 
have to enforce their rights as citizens.



— 10—

2. Reply to (a) and (b ) of Respondents’ 
Point 2, Part I of A.

The substance of respondents’ argument in 
(a ) and (b ) of Point 2, pages 13 to 18, is that 
the City of Pasadena is free from any interfer­
ence by the state through general laws upon 
“ Municipal Affairs,” and Section 51 of the Civil 
Code is not applicable to said City because it is 
not named in the statute.

We respectfully urge that cases involving 
municipal affairs have nothing to do with the 
case at bar which involves the denial of justice 
and violation of law by public officers.

Counsel cite and quote the case' of City of 
Pasadena v. Charleville, which is readily dis­
tinguishable from the case at bar. It involves 
the refusal of the City Manager to sign a con­
tract authorized by the Board of Directors, that 
did not contain specification of a general pre­
vailing rate of per diem wages as required by 
the Public Wage Rate Act of 1931 (Stats. 1931, 
p. 910), and did not contain a provision forbid­
ding the employment of aliens upon the work as 
provided by the Public Works Alien Employ­
ment Act of 1931.

The term “ Municipal Affairs” is not a fixed 
quantity, nor can it be defined exactly, but fluctu­
ates with every change in the conditions upon 
which it is to operate. (Helmer v. Superior 
Court, 48 Cal. App. 140; Marysville v. County



— 11—

of Yuba, 1 Cal. App. 628; Key System Transit 
Co. it. City of Oakland, 124 Cal. App. 733.) 
The City o f Pasadena v. Charleville case does 
not give an exact definition, of the term “ Munici­
pal Affairs,” but it does hold that the signing of 
a public contract which involves the question of 
employment of aliens on public works is a mat­
ter of g-eneral state concern as distinguished 
from a local or municipal concern.

In holding that the subject matter did not come 
within the term “ Municipal Affairs” because the 
state and its public agencies are guardians and 
trustees of the people, the Court said at page 
398:

“ . . . All public works and all public
property in the state in a broad sense be­
longs to all the people of the state. Whether 
ownership or title thereof be in the state or 
in a municipality or in some other Govern­
ment agency of the state, such ownership 
and title are held in trust for the people of 
the state. That is to say, the state and its 
public agencies are the guardians and trus­
tees of the people in the ownership, con­
struction and maintenance of its public 
works and property. When considered in 
this connection the “people of the state” 
may be said to constitute that body of citi­
zens who have become organized and func­
tion as the state and through whom the state 
derives and exercises its powers. The obli­
gations of the state on the one hand and of



— 12—

its citizens on the other hand are reciprocal. 
Neither could exist without the other. The 
state exercises its sovereign power on behalf 
of its citizens. . . .

. . . but if the Alien Land Law be ex­
pressive of a state policy and in pursuance 
of a general state concern, the municipality 
must yield to the paramount authority of 
the state . .

In Richards v. Wheeler, 10 Cal. App. (2d) 
at page 114, the Court said:

“ The only powers a municipal corporation 
possesses and can exercise are: (1 ) Those 
granted in express terms; (2 ) Those neces­
sarily or fairly implied or incident thereto; 
(3 ) Those essential to the declared objects 
and purposes of the municipality, not merely 
convenient, but indispensable.”

It is well settled that the power of public 
officers must find warrant in law. (People v. 
City of Long Beach, 155 Cal. 604, 610; Pasa­
dena v. Charleville, 215 Cal. 384; 21 Cal. Jur. 
872.) It appearing from the complaint that ex­
clusion of petitioners by respondents from the 
plunge six days a week is solely on the ground 
of color without expressed or implied authority, 
it follows that exclusion could not be a municipal 
affair.

It is conceded that public officers have regula­
tory powers but there is no implied power to ex-



— 13—

elude citizens and taxpayers from municipal 
facilities on the sole ground of color nor are, 
the powers of the city all-embracing as to confer 
on public officers the power to violate the law. 
When the Constitution was amended in 1914 to 
permit cities to make and enforce all laws and 
regulations it was intended that the Constitution, 
laws and policies of this state and United States 
would be obeyed. Respondents must agree that 
they are no more free from interference by the 
state in this case on the theory of municipal 
affairs than if they established a municipal house 
of prostitution or gambling.

Turning now from the foregoing to the argu­
ment that Civil Code Section 51 does not apply 
to a city.

In the Cushnie v. City of Los Angeles case, 
Judge Hartley Shaw held the mandamus petition 
stated a cause of action by showing a violation 
of the 14th Amendment of the United States 
Constitution. The writ, however, was not denied 
because of his opinion that Section 51 of the 
Civil Code did not apply. A new trial was 
granted in that case.

The language of Section 51 is clear and indis­
putable upon the text of legal equality. It ex­
pressly and by implication guarantees rights to 
citizens of the state. It is to be liberally con­
strued with a view to effect its objects. (Code 
of Civ. Proc., Sec. 4.)



14—

It provides, among other things: “ All Citizens 
within the jurisdiction of this State are entitled 
to the full and equal accommodations . .

It was, of course, intended that this provision 
as to the state should have some application to 
the municipalities which are the agencies of the 
state. The legislature must have had in mind 
the municipalities within the state.

In our opening brief at pages 14 and 15 under 
the authorities there cited, we have shown that 
the 14th Amendment applies to all instrumen­
talities and agencies employed by the state. At 
pages 25 to 30 of said brief and under the 
authority of Greenberg v. Western Turf AssJn. 
we have shown that the Supreme Court held that 
under Section 51, the state is prohibiting within 
its jurisdiction what the state itself is prohibited 
from doing under the 14th Amendment of the 
United States Constitution. It follows, that Sec­
tion 51 was intended to prohibit municipalities 
from doing what the Amendment prohibits the 
state from doing and it necessarily implies that 
respondents, as officers and employees of the 
municipality would be prohibited by the section.

Counsel for respondents cite and quote Baltha­
sar v. Pacific Elec. Co. That case is readily dis­
tinguished from the case at bar. In the Balthasar 
case, the question of contributory negligence was 
raised as to whether general restrictions as to 
speed and turning corners contained in the Motor



— 1 5 -

Vehicle Act apply to a fire apparatus responding 
to a fire alarm. The city adopted an ordinance 
giving such apparatuses the right-of-way over 
all vehicles, except vehicles carrying United 
States mail. The question was not raised as to 
the relative authority of the state and city over 
the control of fire apparatus in the public streets 
of a chartered city.

In E x parte Daniels, 183 Cal. 636, was in­
volved the violation of a municipal ordinance 
prohibiting a greater rate of speed than 15 miles 
per hour. The Motor Vehicle Act prohibited a 

' speed of 20 miles an hour. On the question of 
relative authority the Court said at page 641:

. . the state legislature had the ab­
solute right by general law to enact statutes 
which would have validity in all parts of the 
state, including municipalities, and, having 
done so, local laws in conflict therewith ipso 
facto become void. The legislative declara­
tion that ‘local authorities shall have no 
power to enact, enforce or maintain any 
ordinance, rule, regulation in any way in 
conflict with, contrary to or inconsistent 
with the provisions of this act,’ amount to 
no more than the similar constitutional dec­
laration that general laws control municipal 
police regulations. (Const. Art. XI, Sec. 11.

. . . We conclude that the City Ordi­
nance of Pasadena fixing a speed limit of 
fifteen miles an hour is in direct conflict 
with the State law, and therefore void.”



— 1 6 —

The reasoning that upholds the constitutional 
declaration that general laws control municipal 
police regulations that are in any way in con­
flict with, contrary to or inconsistent thereto is 
applicable to the case at bar.

3. Reply to Respondents’ ( c), Point 2 of A, 
Part I.

The substance of respondents’ argument in (c) 
of Point 2, Part I, is that swimming pools are 
not included in Section 51 because under the rule 
of ejusdem generis “ all other places of public 
accommodation and amusement” could not in­
clude swimming pools.

The doctrine of ejusdem generis is but a rule 
of construction to aid in ascertaining the mean­
ing of the legislature. Its purpose is to carry 
out but not to defeat the legislative intent.

The rule is followed that every part of a stat­
ute should, if possible, be given its proper force.

People v. McKean, 76 Cal. App. 114;
City of Los Angeles v. Superior Courts, 

2 Cal. (2d) 138, holding that the doc­
trine of ejusdem generis is not positive 
or mandatory, but is simply an aid to 
the ascertainment of legislative intent.

There is no logical reason to be found for the 
restrictive interpretation urged by the respond­
ents. Section 51 was recently amended in 1923.



— 17-

Swimming pools are commonly known and des­
ignated as bath houses. The purpose of the 
statute is obviously to afford equal opportunities 
in the use of swimming facilities. In fact, the 
words are synonymous.

Webster defines bath house as “ a house or 
building set apart for bathing purposes.” The 
word bath is defined by Webster as follows: 
“ a place for bathing; a convenient receptacle of 
water for persons to plunge into or wash their 
bodies in; as, a porcelain bath; swimming bath. 
Any arrangement, preparation, or solution for 
the immersion of an object.”

4. Reply to Respondents’ Point 3 of A, 
Part I.

In Point 3 of Part I, respondents make an 
analysis from three standpoints. Before answer­
ing each analysis separately, we respectfully re­
quest the Honorable Court to carefully consider 
the first paragraph of point 3 at page 24, with 
page 46. On page 24, they argue that injunction 
is the proper remedy. They do not say it is an 
adequate remedy in the case at bar. They make 
a general statement that the existence of an ade­
quate and appropriate remedy bars mandamus. 
At page 46, they state, “ We do not infer that 
any writ would issue on their behalf” . . .
“ Our contention simply is that if petitioners are 
entitled to any relief equity will afford them the 
necessary relief.”



— 18—

If respondents are to insist that mandamus is 
not the proper remedy, then they should show 
that the remedy of injunction is proper and ade­
quate to the case at bar and not merely that the 
equitable remedy exists.

5. Reply to Respondents’ (a ) of Point 3 
of A, Part I.

Answering (a) of respondents’ brief, entitled 
“ Petitioners’ Rights,” it is admitted that there 
are a line of cases holding that the legal right 
must be clear and complete.

A  full discussion on this point may be found 
in appellants’ opening brief, pages 10 to 35.

The fundamental principle upon which the 
right is embraced is that it must be determined 
by the state of law and facts existing at the time 
the proceeding was taken.

McGinnis v. City o f San Jose, 153 Cal. 
711;

38 C. /., Mandamus, 584.

The Ward v. Flood and Plessy v. Ferguson 
cases cited by counsel involved different ques­
tions and duties than the case at bar.

The Ward v. Flood case was in 1847 when the 
statutes required separation of races. There­
fore, it was the duty of respondents to refuse to 
admit the petitioner to the school.

The Plessy case involved a statute requiring 
separate accommodations for the Colored race.



— 19—

Likewise the Pennsylvania Law Review com­
ment at page 23, shows a different state of the 
law. Apparently bath houses were not included 
in the Pennsylvania statute.

The state of the law and facts existing in 
California at this time are different, in that we 
have no laws requiring the separation of races 
and in the absence of the same, public authori­
ties have no power to do so. The rule of sub­
stantially equal facilities has no application 
where the statutes do not require separation of 
races.

Petitioners have the right to be admitted to 
the Brookside Park Plunge at all times when it 
is open to the public for the following reasons:

(1 ) It is a facility provided and maintained 
by the municipality for public use. (2 ) It is 
under the control of respondents for public use 
purposes. (3 ) It is the only bath house and 
swimming facility provided by the municipality. 
(4 ) The sole cause for exclusion of petitioners 
is because of their color.

The reports are replete with decisions holding 
that if facilities are provided, substantial equality 
of treatment of persons under like conditions 
cannot be refused. Where state statutes require 
separation the facilities must be equal even 
though they are not the same. Where separa­
tion is not required by statute all races are en­
titled to use the same facility.

Railroad Co. v. Brown, 17 Wall. 447.



— 20—

6. Reply to Respondents’ (b) of Point 3, 
of A, Part I.

In respondents’ (b ) of Point 3, Part I, they 
contend that before mandamus will lie there must 
be a plain, specific, undisputed, ministerial duty 
specially enjoined by law.

What is or is not a ministerial duty arises out 
of the circumstances of each case. Sullivan v. 
Shanklin, 63 Cal. at page 251, on ministerial 
duties says, “ It is,” says Chief Justice Chase, 
“ a simple, definite duty arising under circum­
stances admitted or proved to exist and imposed 
by law.”

All the allegations of the petition by the ob­
jection taken are admitted as true and we re­
spectfully submit that where, as here, only one 
facility is maintained by the municipality, and no 
equivalent provision is made for negroes (if  
there was a statute requiring the separation of 
races) and there is no legislative declaration of 
purpose to establish a separate bath house and 
swimming pool for negroes, petitioners must be 
admitted to the facilities that are provided. (See 
R. C. L., title “ Civil Rights,” 20, and Gaines v. 
State of Missouri; Pearson v. Murray, 103 
A. L. R. 706.

The duty imposed on public officers is to fur­
nish the facility it has provided to all residents 
upon the basis of an equality of right. The Fed­
eral Constitution is a pledge of equal laws.



— 21—

(Vick Wo v. Hopkins, 118 U. S. 356; Gaines v. 
Missouri, supra.) The swimming pools of Pasa­
dena are to he furnished and maintained for the 
public. (See Pasadena Charter, Art. I, Sec. 2, 
Subsection 19.)

The provisions of the Federal Constitution 
creating duties on public officers are mandatory. 
(11 Am. Juris, p. 686; Bosworth v. State Uni­
versity, 166 Ky. 436; Denny v. State, 144 Ind. 
503; Wilks County v. Call, 173 U. S. 461; Trux 
v. Corrigan, 257 U. S. 312.) The 14th Amend­
ment, by necessary implication, imposes duties 
and creates rights.

Plessy v. Ferguson, supra.

Where a duty is mandatory, mandamus will 
lie not only to compel performance, but to com­
pel the manner of performance.

38 Corpus Juris 594 to 597;
People v. Land Office Comrs., 149 N. Y.

26.

Respondents contend that duties enforceable 
by mandamus are statutory, not constitutional 
duties. Our views to the contrary have been set 
forth at pages 10 to 35 and 46 to 65 of appel­
lant’s opening brief.

The 14th Amendment of the United States 
Constitution guarantees the equal protection of 
the laws. Whether or not particular facilities 
shall be provided may doubtless be conditioned



— 22—

upon there being a reasonable demand therefor, 
but if facilities are provided, equality of treat­
ment of persons cannot be refused. This plain 
duty exists under the United States Constitu­
tion.

Gaines v. Missouri, supra;

University v. Maryland.

Irrespective of this, however, a plain, specific, 
undisputed duty is specifically enjoined by law 
on respondents by virtue of the Charter of the 
City of Pasadena at Article I, Section 2, sub­
section 19. W e respectfully submit that the peti­
tion states facts showing such a duty to exist. 
Paragraphs I, III, IV, VI, VII, V III and IX 
of the petition illustrates our point in this re­
spect.

Assuming but not conceding, in view the con­
stitutional guarantees, that before mandamus will 
lie there must be a plain statutory duty, it is 
clear that Article I, Section 2, subsection 19 of 
the Pasadena Charter imposes a positive duty on 
respondents to maintain and operate said bath 
houses and swimming pool for public recreation 
and amusement.

The Court will take judicial notice of the pro­
visions of the Pasadena City Charter particu­
larly at Article I, Section 2, subsection 19.

Teachout v. Bogy, 175 Cal. 481;
Tilden v. Blood, 14 Cal. App. (2d) 407.



— 23-

A city charter is a law of the state, having the 
same force and effect as a law directly enacted 
by the legislature. It has all the dignities of 
ordinary statutes.

Witmore v. Brown, 207 Cal. 473;
Tilden v. Blood, supra;

People v. City of San Buenaventura, 213 
Cal. 637.

It follows that the Pasadena Charter imposes 
statutory duties.

In addition to those principles governing the 
issuance of the writ where the duties are en­
joined by law, the writ likewise will issue where 
the act complained of has been an abuse of dis­
cretion. (See authorities at page 30 of Appel­
lants’ Opening Brief.)

7. Reply to Respondents’ C of Point 3, 
Part I.

In C of Point 3, Part I of respondents’ brief, 
it is apparent that they have overlooked the im­
portant question involved. The action does not 
seek protection against discrimination and denial 
of equal protection as respondents claim, but is 
a mandamus proceeding against public officers 
who, in the discharge of duties imposed upon 
them by law, discriminate and exclude those they 
are bound to serve by reason of their color. The 
argument that petitioners seek protection against



- 2 4 -

discrimination is an attempt to create an im­
pression different than was intended.

Petitioners seek the use and enjoyment of a 
facility that has been provided and from which 
they are excluded by respondents because of 
their color. The following cases have held that 
an injunction is not the proper remedy against 
public officers who in the discharge of the duties 
discriminate between those they are bound to 
serve: McCabe v. Atchison, Topeka & Santa Fe 
Railroad Co., 235 U. S. 151; Cumming v. Rich­
mond County Bd., 175 U. S. 528; Maddox v. 
Neal, 55 Am. Rep. 540. These cases illustrate 
our contention that mandamus is the proper 
remedy.

One observation may be made regarding C of 
Point 3, no authorities are quoted and cited by 
respondents supporting their argument that peti­
tioners’ sole and greatest right is that they be 
afforded substantially equal accommodation. We 
can find no authorities supporting the rule where 
statutes requiring separation have not been en­
acted.

We admit that the state may require separa­
tion of races as it did at the time of the Ward v. 
Flood case, but without such legislation, public 
authorities have no power to separate.

Respondents cannot find the remedy to be that 
of constructing a new pool for members of the 
Negro race or assigning alternative days or



- 2 5 -

hours for exclusive use or by following the pres­
ent policy. In California no officers or body of 
officers are authorized to carry out such a plan; 
there is no legislative declaration of purpose to 
establish one and, we respectfully submit, that 
under Gong Lmn v. Rice, 275 U. S. 78, 48 S. Ct. 
91, 72 L. Ed. 172, the Court could not make the 
decision for the state and order its officers to 
establish one. The Gong Lum case states the 
above principle.

Respondents assert that the danger of a multi­
plicity of suits lies in the fact that other mem­
bers of the Negro race may bring actions. The 
petition does not state the fact. The essence of 
the constitutional right is that it is a personal 
one. It would seem that if respondents persist 
in their policy if and when a writ was to issue 
in this case it would be the fault of respondents 
who caused other members to complain that 
their constitutional privilege had been invaded.

Respondents at C of Point 3, Part I, cite and 
quote numerous authorities that are not ap­
plicable to the case at bar.

At page 38 respondents make various and 
numerous contentions and then state, “Under 
such circumstances our courts have stated an 
injunction will lie on behalf of the party claim­
ing injury.”

Stone v. City of Los Angeles was an injunc­
tion to prevent administrative officers from exe­



— 26—

cuting a proposed oil lease in violation of trusts 
upon which the state ceded the lands to the City 
of Los Angeles. There was an intention on the 
part of the appellants to lease the land. It is 
readily distinguishable because in the case at bar 
respondents deny and do now deny petitioners 
the use and enjoyment of the facility.

At page 34 respondents assert that in a man­
damus proceeding the peremptory writ is limited 
by the terms of the alternative writ. The rule 
is that where principles of justice and fairness 
may require its issuance a peremptory writ of 
mandate may issue despite provisions of the 
alternative writ.

Johnson v. Fontana Fire Protection Dis­
trict, 99 Cal. Dec. 308.

Respondents assert at page 39 that where 
equity furnishes an adequate and appropriate 
remedy, all the authorities agree that mandamus 
will not lie.

We respectfully submit that such an assertion 
is the reverse statement of the rule. The correct 
statement of the rule is, “The writ of mandamus 
must be issued in all cases where there is not a 
plain, speedy, and adequate remedy, in the ordi­
nary course of law. It must be issued upon the 
verified petition of the party beneficially inter­
ested.” (Code of Civ. Pro. 1086.) It is very 
generally held that the fact that a party has a 
remedy in equity will not of itself bar his right



— 27—

to relief by mandamus. (See discussion at pages 
66 and 67 of Appellants’ Opening Brief.) Boyle 
v. State Treasurer, 24 Mich. 468, illustrates our 
point. It states thus:

“ Courts of law do not, in deciding such 
questions take into account remedies in 
equity. They may be regarded in determin­
ing the exercise of discretion in allowing 
the writ, but they cannot affect the jurisdic­
tion. There is no case where a court of law 
has its jurisdiction cut off by the existence 
of equitable remedies. The rule is the re­
verse-—that equity zvill not interfere if legal 
remedies are adequate.”

The California cases cited and quoted by re­
spondents at pages 39-46 do not prove that in 
the case at bar the remedy of injunction is ade­
quate, more beneficial and convenient than man­
damus. They involve transfers of stock on the 
books of a private corporation (property) ; ac­
counting in equity; action to prevent sale of bond 
(property right); interpretation and construc­
tion of an Act giving petitioners power to pre­
vent the construction of an unsafe dam through 
the methods of the Act; threatened violation of 
duty; restraining prosecution of suits.

Failure to cite authorities holding that an 
equitable remedy is an adequate and appropriate 
remedy where constitutional and statutory rights 
have been violated raises a question of doubt as



— 2 8 —

to the efficacy of the remedy. And further, 
page 46 adds greater doubt.

It is the rule in California that if a remedy 
in equity is of doubtful efficacy, the existence of 
the remedy does not bar the right to the writ of 
mandamus.

Hershey v. Reclamation District, 162 Cal. 
at page 403;

Holtum v. Greif, 144 Cal. 527.

Furthermore, the assertion that mandamus 
will not lie where equity furnishes another rem­
edy is not true where the writ is sought against 
ministerial officers. People v. Loucks, 28 Cal. 
68, illustrates this point. At page 71, the Court 
said:

“ Nor is there any doubt as to mandamus 
being the proper remedy. The judgment 
awards to the relator the possession of land 
which can be obtained only through the writ 
which he seeks. The duty of issuing the 
writ is especially enjoined upon the respond­
ent and it is manifest that a suit upon his 
official bond for damages resulting from 
non-performance of that duty would be in­
adequate. (Fremont v. Crippen, 10 Cal. 
211.) In McCullough v. The Mayor of 
Brooklyn, 23 Wend. 461, it was said that 
although as a general rule, a mandamus will 
not lie where the relator has another remedy, 
it is not universally true where the writ is



-29—

sought against ministerial officers, notwith­
standing they may be liable in an action on 
the case for neglect of duty, they may be 
compelled by mandamus to exercise their 
functions according to law.

“ Peremptory mandamus allowed, with 
costs.”

To the same effect see:
Ross v. O’Brien, 1 Cal. App. (2d) 496;
Nessbit v. Superior Court, 214 Cal. 1;
Coombs v. Smith, 17 Cal. App. (2d) 454.

8. R e p l y  to  R e s p o n d e n t s ’ P o in t  A, P a r t  II .

In Point A  of Part II respondents make the 
contention that the 14th Amendment does not 
guarantee Equal Social Rights. The invocation 
of the expression “ Social Rights” is just as 
unusual to our system of jurisprudence as it is 
novel.

After a search of the authorities we have 
come to the conclusion that such rights are un­
known to our system of jurisprudence.

One general observation may here be made 
with regard to the authorities upon which re­
spondents rely.

Without exception the authorities mention the 
words “ social” or “ social privileges” as dictum. 
Not one case defines or construes the expression 
“ Social Rights.”



3 0 -

Counsel in support of his argument on “ Social 
Rights” relies strongly on Weaver v. Board of 
Trustees o f Ohio State University. That case 
is clearly distinguishable from the case at bar.

The Ohio case principally involved the ques­
tion whether or not the social privilege of re­
siding with white girl students and partaking of 
their family life of rooming, eating and sharing 
the common toilet and bath was a part of the 
educational facilities.

In this Ohio case the plaintiff was, however, 
offered living quarters and opportunity to pursue 
her residence service in another part of the same 
building, furnished and equipped in a manner 
equivalent to that used by the white students.

It will be observed that in the Ohio case the 
plaintiff was not excluded from the building, 
but from the common enterprise of eating and 
sleeping.

In accordance with the laws of the State of 
Ohio there was no denial of the guarantees of 
the 14th Amendment because equal educational 
facilities were provided. Plaintiff was offered 
the same instruction under the same supervisor; 
enroll in the same course and obtain the neces­
sary degree. Apparently the Court took the posi­
tion that eating, sleeping and sharing the com­
mon toilet and bath were not a part of the edu­
cational facilities.

If the trustees of the State University of Ohio 
had excluded plaintiff from the school six days



— 3 1

a week, it is clear that the writ of mandamus 
would not have been denied. Such exclusion in 
that state would have been a denial of the equal 
protection of the law.

In California, although the state has the power 
to enact statutes requiring the separation of 
races, until it does so, public authorities do not 
have the power to do so. (See App. Op. Br. at 
p. 20.) The substantially equivalent facilities 
argument is not applicable to the case at bar.

Respondents argue that regulations which are 
induced by the general sentiment of the com­
munity cannot be said to be unreasonable. This 
is outside the allegations of the petition and is 
not supported by competent proof. [See Rep. 
Tr. p. 64, lines 3 to 10.]

It will be conceded that respondents, as officers 
and employees of the City of Pasadena are vested 
with power reasonably to regulate the bath house 
and swimming pool facilities. But no one would 
say that this power gives them the right to deny 
the “use” of the facilities to the members of the 
public when the same are open to the public.

A  regulation to be sustained as an exercise of 
police power, must have for its object the pre­
vention of some offense or manifest evil or the 
preservation of public health, safety, morals or 
public welfare.

Erie R. R. Co. v. Mayor & Alderman of 
Jersey City, 84 Atl. 697.



- 3 2 -

Turning now to the Plessy v. Ferguson case 
relied on by respondents in support of their argu­
ment that the 14th Amendment does not guaran­
tee equal social rights.

It might be of some assistance at the outset 
to state some of the facts of the case. The peti­
tioner was % Caucasian and %  African descent, 
and a resident and citizen of Louisiana. There 
is a statute requiring all railway companies 
carrying passengers in Louisiana to provide 
equal, but separate accommodations for the white 
and colored races by providing two passenger 
coaches for each passenger train or by dividing 
the passenger coaches by a partition so as to 
secure separate accommodations, and providing 
that no person shall be permitted to occupy seats 
in coaches other than the ones assigned to them 
on account of color. Conductors had the power 
and were required to assign each passenger to 
the coach or compartment used by the race he 
belonged.

The petitioner took a seat where white race 
was accommodated. Upon being instructed to go 
to the coach where colored race was accommo­
dated, petitioner refused.

Petitioner was ejected and imprisoned for vio­
lating the Act of the General Assembly. On his 
preliminary hearing he interposed a plea that the 
Act was null and void because it was in conflict 
with the Constitution of the United States. The



- 3 3 -

district attorney demurred to the plea and it was 
sustained.

On prohibition to the Louisiana State Su­
preme Court by the petitioner the Supreme Court 
denied the writ.

The case went to the United States Supreme 
Court on a writ of error. The 12-page opinion 
is followed by a 14-page dissenting opinion.

The question involved in the case was not one 
of social right, but whether the statute violated 
the 14th Amendment so long as the state fur­
nished equal facilities for carrying passengers in 
separate coaches.

In holding the statute did not violate the 14th 
Amendment, the Court upheld the rule that the 
State of Louisiana could provide the right for 
the separation of races, but that the obligation 
of the amendment must be fulfilled by providing 
equal facilities.

In the Pl-essy case it is at once apparent that 
had it not been for the statute or some legislative 
authority, a different decision would have been 
made. Justice Brown said at page 545:

“ So, where laws of a particular locality 
or the Charter of a particular railway cor­
poration has provided that no person shall 
be excluded from the cars on account of 
color, we have held that this meant that per­
sons of color should travel in the same car 
as the white ones, and that the enactment



— 34—

was not satisfied by the company providing 
cars assigned exclusively to people of color, 
though they were as good as those which 
they assigned exclusively to white persons. 
Railroad Company v. Brown, 17 Wall. 447.”

Although petitioners do not concede the ques­
tion of social equality raised by respondents can 
be regarded as one, scarcely worthy of considera­
tion, we feel obligated to note that in both opin­
ions in the Plessy case there are statements on 
social equality that should be alluded to. In the 
opinion Justice Brown said:

“ A statute which implies merely a legal 
distinction between the white and colored 
races-—distinction which is founded in the 
color of the two races and which must al­
ways exist so long as white men are distin­
guished from the other race by color— has 
no tendency to destroy the legal equality of 
the two races, and which must always exist 
so long as white men are distinguished from 
the other race by color— has no tendency to 
destroy the legal equality of the two races, 
or re-establish a state of servitude.”

With respect to the suggestion that social 
equality cannot exist between the races, Justice 
Harlan in his dissenting opinion said at page 
561:

“ That argument, if it can properly be re­
garded as one, is scarcely worthy of con­
sideration, for social equality no more exists



■35—

between two races traveling in a passenger 
coach or a public highway than when mem­
bers of the same races sit by each other in 
a street car or in a jury box, or stand or sit 
with each other in a political assembly, or 
when they use in common the streets of the 
city or town, or when they are in the same 
room for the purpose of having their names 
placed on the registry of voters or when 
they approach the ballot box in order to 
exercise the high privilege of voting.”

“There is a race so different from our 
own that we do not permit those who belong 
to it to become citizens of the United States. 
Persons belonging to it are, with few excep­
tions, absolutely excluded from our country. 
I allude to the Chinese race.”

Applying the principle and reasoning so clearly 
and ably expressed by Justice Harlan, it is clear 
that social equality no more exists between races 
in the bath houses and swimming pool at Brook- 
side Plunge than in those places the legislature 
intended by the adoption of Section 52 of the 
Civil Code.

It is inconceivable what intimate personal so­
cial relations exist at the plunge, that warrant 
respondents’ assertion that a more intimate so­
cial contact outside the family can scarcely be 
conceived. All the parties must agree that when 
the state granted the City of Pasadena a Charter 
that empowered it to acquire and maintain a



- 3 6 -

swimming pool and to regulate the same, it had 
in mind that the same would not be operated 
under the relationships indicated by counsel for 
respondents, but under the conditions and cir­
cumstances it conceived that brought about the 
adoption of Section 52 of the Civil Code. We 
believe that such conditions are only an- activity 
within the facility and are not related to the 
question o f exclusion from the use of the facility.

We do not question here the authority of the 
Assembly to prohibit intermarriage of the white 
and colored races by adopting Section 60 of the 
California Civil Code. However, we do main­
tain that without such a statute forbidding inter­
marriage, public officers would not have the 
authority to forbid it.

The Porterville v. Webb case cited by re­
spondents quotes and cites Piper v. Big Pine 
School District. We have cited and quoted from 
it at pages 20, 25 and 30 of appellants’ opening 
brief. It is a leading case in California on the 
rule that race or color are not basis for dis­
crimination and the rule that in the absence of 
legislative authority there can be no separation 
of races.

With respect to the argument of classification, 
some of the Courts have remarked, “All legis­
lation involves classification.” (50 L. R. A. 
(N. S.) 1156.)



— 37—

What is prohibited by the 14th Amendment to 
the Constitution is class legislation discriminat­
ing against some and favoring others.

Truax v. Corrigan, 257 U. S. 312;
Atchison, Topeka & Santa Fe v. Mat­

thews, 174 U. S. 96;
Mountain Timber v. Washington, 243 

U. S. 219.

We submit that in our opinion the first 
amended petition states facts of exclusion and 
not of classification.

9. R e p l y  to  R e s p o n d e n t s ’ P o in t  B of 
P a r t  II.

In Point B of Part II, respondents contend 
that segregation of the Negro and Caucasian 
races is a valid exercise of the police power and 
does not offend the equal protection clause of the 
United States Constitution as long as substan­
tially equal facilities are furnished to both races.

Such, we submit, is the rule where states have 
properly adopted statutes requiring separation. 
It is readily apparent that such principle has no 
application in those states where separation of 
races is not required by the Constitution and 
statutes and/or the Constitution and statutes re­
quire the full and equal accommodations and/or 
prohibit the granting of special privileges. 
(Piper v. Big Pine School District; Tape v.



— 38—

Hurley; Plessy v. Ferguson; Railroad Company 
v. Brown.) (Appellants’ Opening Brief con­
tains the authorities.)

All the cases cited and quoted by respondents 
at pages 68 to 71 involved statutes requiring 
separation of races. Briefly, Ward v. Flood, a 
California School Law then required that chil­
dren of African descent shall not be admitted 
into schools for white; Missouri ex rel. Gaines 
v. Canada, a statute authorized the Board of 
Curators to establish a law school for Negroes 
whenever in their opinion it was necessary and 
practical. (Full discussion of case in Appellants’ 
Opening Brief at pages 56 to 63.) Plessy v. 
Ferguson, statute requiring separation of pas­
sengers in railway coaches; Gong Lum v. Rice 
and Berea College v. Kentucky, statutes requir­
ing separation of races in schools.

It has been held that the principle of substan­
tially equal facilities is no ground for exclusion 
where only one facility is maintained and no 
equivalent provision made for Negroes.

Missouri ex rel. Gaines, supra;

Plessy v. Ferguson, supra;

Atchison, Topeka & Santa Fe, supra;

Ward v. Flood, supra;

Gong Lum v. Rice, supra

Pearson v. Murray, 103 A. L. R. 706.



- 3 9 -

Respondents assert that the requirement of 
substantially equal facilities where races have 
been segregated, does not demand identity of 
facilities. We respectfully submit that by the 
great weight of authority this is not the law of 
California.

A  positive duty is imposed on respondents by 
Article I, Section 2, subsection 9, of the City 
Charter of Pasadena, to maintain the swimming 
pool for the public. The petition shows appel­
lants are resident members of the public.

The argument supporting the principle of sub­
stantially equal facilities that petitioners as well 
as other members of their race may use the 
plunge one day of each week seems just as 
unreasonable as its invocation in this case is 
novel. The equal protection of the laws is “a 
pledge of equal laws.” ( Yick Wo v. Hopkins, 
118 U. S. 356; Missouri ex rel. Gaines v. 
Canada, supra; Plessy v. Ferguson, supra; 
Pierre v. Louisiana, 306 U. S. 354; Lane v. 
Wilson, 307 U. S. 268; Guinn v. United States, 
238 U. S. 347; Strauder v. West Virginia, 100 
U. S. 303; Wysinger v. Crookshank, supra.) 
The Caucasian race may use the plunge at all 
times.

Respondents contend that the Court may take 
judicial notice of the population as established by 
the census. Be that as it may, unless the State 
and Federal census returns indicate the race we 
cannot concede that Negroes constitute 3.96 of



— 40—

the total, and that the percentage of the total 
remained the same. Since in our opinion the 
argument of population is not worthy of con­
sideration our reply on this point is brief. (On 
the subject that judicial notice must be known 
and authoritatively settled, see 10 Cal. Jur. p. 
693.)

Furthermore, to single out a certain person by 
the arbitrary standard of color, and say that he 
shall not have rights which are possessed by 
others, denies him the equal protection of the 
laws. On this point the Supreme Court of the 
United States has said:

“ This argument with respect to the volume 
of traffic seems to us to be without merit.

“ It makes the constitutional right depend 
upon the number of persons who may be 
discriminated against, whereas the constitu­
tional right is that it is a personal one.

McCabe v. Atchison, Topeka & Santa Fe, 
supra.

10. Reply to Respondents’ (C ) of Part II.

Respondents herein contend that Article I, 
Section 21 of the State Constitution has not 
been violated.

The cases relied upon by respondents are 
clearly distinguishable from the case at bar. In 
the Van Valkenburg v. Brown and Cor field v. 
Coryell cases, the question of general privileges



— 4 1 —

and immunities of citizens of the United States 
were involved. In the Van Valkenburg case the 
plaintiff, a female, claimed the right to register 
as a voter under the general privileges and im­
munities clause of the 14th Amendment of the 
Federal Constitution. In the People v. Bray 
case, a defendant convicted of selling intoxicat­
ing liquor to an Indian, contended that Section 
397 of the Penal Code forbidding the sale, mak­
ing such a felony, deprived him of his immuni­
ties and privileges of citizenship. There is no 
mention of Article I, Section 21 of the Califor­
nia Constitution.

Without exception these authorities are “ gen­
eral privileges and immunities cases” as distin­
guished from the “ special privileges and im­
munities” prohibited by Article I, Section 21 of 
the Constitution.

The Slaughter House case announces the rules 
to be that,

“ The privileges and immunities of citizens 
of the United States are those which arise 
out of the nature and essential character of 
the National Government, the provisions of 
its constitution or its laws and treaties made 
in pursuance thereof; and it is these which 
are placed under the protection of Congress 
by this clause o f the 14th Amendment.”

The quotation from Ward v. Flood by re­
spondents at page 82 is incorporated by refer­



— 42—

ence in this reply in support of our argument 
that the special “privileges and immunities”  pro­
hibited by the Constitution are such as involve 
only the construction of said legislative enact­
ment and of the fundamental law of the State of 
California.

In the leading California case of Sacramento 
O. etc. Home v. Chambers, 25 Cal. App. 536, 
Article I, Section 21, was passed upon where a 
writ of mandamus was sought to secure the pay­
ment of a claim for support of a minor orphan 
whose parents were aliens and non-residents. 
Petitioner contended that Section 2289 of the 
Political Code, subsection 4, stating that no child 
whose parents have not resided in California for 
at least three years shall be entitled to the bene­
fits of the section granted special privileges. In 
ordering that a peremptory mandamus issue, the 
Court said through Justice Burnett at page 541 :

“ Is there any 'natural, intrinsic or con­
stitutional distinction’ differentiating him 
from the other orphan citizens who are re­
ceiving and who are entitled to receive State 
Aid ? The answer, of course, must be in the 
negative. The distinguishing quality or con­
dition relates not to him, but to his parents. 
It would be a strange construction of the 
constitutional provision that would permit 
privileges to be conferred upon one citizen 
of the state and withhold from another for 
the reason that there was a difference in the



- 4 3 -

political status of the parents. Mentally, 
morally and physically, no doubt, the sins 
and infirmities of the parents are often vis­
ited upon their descendents, but in the realm 
of civil and political rights and privileges no 
such principle can be recognized or toler­
ated. To affirm the proposition contended 
for by respondents, that one citizen is, and 
another is not entitled to this privilege in 
consequence o f the difference in citizenship 
and residence of the parents, is to deny all 
efficacy to the constitutional mandate that 
privileges must be granted to all citizens 
upon all terms.”  . . .

“ No such arbitrary and extraneous dis­
crimination is sanctioned by our fundamen­
tal law.”

On special privileges and immunities, the same 
authority states at page 540:

“ The privilege or benefit herein involved 
does not grow out of nor does it have any 
relation whatever to any grant of right or 
power by the federal constitution. It is 
purely a state question involving only the 
construction of the said legislative enact­
ment and of the fundamental law of this 
state. It is similar in principle to the pro­
visions made for the education of the chil­
dren of the state at public expense.”

Respondents urge that there is no question of 
privileges or immunities involved.



44

To give such effect as respondents maintain 
in their brief at page 83 would be in violation of 
that mandate of Section 11, Article I of the 
State Constitution which provides that “ All laws 
of a general nature shall have a uniform opera­
tion.” The Constitution knows no distinction 
between persons and the legislature cannot dis­
criminate or grant an indulgence to one which 
is not accorded to another.

5 Cal. Jur. 816, 818;

Sacramento O. etc. Home v. Chambers, 
supra.

With respect to the argument that the city is 
empowered to perform any act with respect to 
municipal affairs, as respondents contend, that 
power does not extend to granting special privi­
leges to some citizens and withholding them from 
others. The constitutional amendment of Sec­
tions 6 and 8 did not intend to grant such an 
indulgence.

Any classification must be reasonable. It must 
not be arbitrary. It is clear that a classification 
is not reasonable which is based on color or race 
and must fall under the constitutional mandates.

City of Sacramento v. Swanston, 29 Cal. 
App. 212;

E x parte Bohen, 115 Cal. 372.



- 4 5 —

11. R e p l y  to  R e s p o n d e n t s ’ P a r t  III, 
S e c t io n  A.

Respondents assert that without exception, 
petitioners’ authorities are exclusion cases. Our 
views to the contrary need not be repeated here. 
Conceding that they are, the petition states facts 
showing exclusion on all days, except “ Inter­
national Day.”

Respondents assert that school cases involve a 
privilege which is fundamental. Our contrary 
views are set forth at page 16 of appellants’ 
opening brief. The privilege accorded the youth 
of the state of attending school is not a privilege 
or immunity appertaining to a citizen of the 
United States. ( Ward v. Flood; Sacramento O. 
etc. Home v. Chambers.)

Respondents assert that the case involves regu­
lation by a chartered municipal corporation. As­
suming, but not admitting, that it does, Article I, 
Section 2, subsection 19 of the City Charter im­
poses a plain, specific, undisputed duty on re­
spondents to maintain that swimming pool and 
its facilities for the public. It follows that to 
maintain the same for any class of individuals 
and as a “ benefit or bounty” as respondents con­
tend is in violation of authority.

Since respondents assert at page 83 that the 
right to use Brookside Park Plunge is a benefit



4 6

or bounty, they cannot seriously contend at pages 
88 to 91 that the privileges at the plunge is a 
“municipal affair.” “ Municipal affairs,”  as those 
words are used in the organic law, refer to the 
internal business affairs of a municipality.

In re Hitchcock, 34 Cal. App. I l l ;
Griffin v. City o f Los Angeles, 134 Cal.

App. 763.

Counsel assert that in the Cushnie v. City of 
Los Angeles case, the writ was ultimately de­
nied. It will be sufficient to say that although 
the writ was denied on a question of fact, a new 
trial was granted.

Replying to respondents’ assertion that the 
Cushnie and Prioleau cases involved a legislative 
act while the case at bar an administrative policy. 
Any attempted exercise of police power which 
results in a denial of the equal protection of the 
law is invalid.

Smith v. Cahoon, 283 U. S. 553;
Truax v. Corrigan, supra.

Respondents assert the quotation from the 
Kern v. City o f Newton is garbled, misleading, 
and cannot be relied upon. We respectfully urge 
the Court to examine this authority since re­
spondents have raised the issue on our quotation. 
In our opinion the case is directly in point with 
the one at bar.



— 47-

12. R e p l y  to  R e s p o n d e n t s ’ P a r t  III,
P o in t  B.

Respondents at page 98 contend that where 
there is an adequate remedy in damages the writ 
of mandamus will be denied.

The rule is fundamental that the other pro­
ceedings must be one competent to afford relief 
upon the very subject matter concerning which 
mandamus is sought.

Respondents from page 1 to 100 have at­
tempted to create the impression that petitioners 
have an adequate remedy in equity, but a critical 
examination of their authorities will show a 
state of facts and principles different than the 
case at bar.

There are no authorities offered by respend- 
ents upholding an injunction in a case restrain­
ing unconstitutional discrimination as they con­
tend as proper. If, therefore, respondents be­
lieve that injunction and/or damages are ade­
quate, we respectfully submit that counsel should 
quote authority in support of their argument.

13. R e p l y  to  R e s p o n d e n t s ’ P a r t  III,
P o i n t  C.

Respondents, in denial of my argument that 
equity will not protect purely personal rights, 
quote and cite the California case In re Woods. 
We do not find the purpose of the injunction to 
be as respondents have stated at page 103. The



48-

injunction pendente life commanded defendants 
at page 52, to

“desist and refrain from further conspiring 
with each other to carry out, and from 
carrying out, or attempting to carry out, 
their conspiracy to injure, destroy and dam­
age property in the State of California, and 
to take over and assume possession of the 
industries and properties in said state as 
well as the government thereof; . .

The Court went further in its discussion of 
the jurisdiction of equity over cases involving 
purely personal rights and said at page 55:

. . W e think that the correct rule is 
well stated by Professor Pomeroy in the fol­
lowing passage from Section 1894:

W hile the right of the government to ob­
tain an injunction to restrain criminal acts 
is not confined strictly to cases of nuisance, 
it would seem that it should be limited to 
cases closely analogous. Such relief, if ap­
plied to criminal acts in general, would 
supersede the criminal law and deprive par­
ties of the right to a jury trial. Where the 
property rights of many citizens are in­
volved, it is proper for the government on 
their behalf, to invoke the powers of equity, 
and it would seem that only in such a case 
should the jurisdiction he assumed.’ ”



- 4 9 —

At page 56 the Court said:
“ There must be some interferences, ac­

tual or threatened, with property or rights 
of a pecuniary nature.”

Upon the In re Wood case, and the authorities 
cited in our opening brief, equity will not inter­
vene to protect purely personal rights or prevent 
unconstitutional discrimination where no prop­
erty rights are involved.

The cases relied upon by respondents and set 
forth at page 102 are clearly distinguishable as 
they do not involve enjoining unconstitutional 
discrimination or cases involving purely personal 
rights, but are cases involving a mixed question 
of personal and property rights. They cannot be 
authority in support of respondents’ contention 
that the remedy of injunction is proper.

It follows that respondents have not met the 
argument raised by appellants at pages 46 to 56 
of their opening brief.

14. R e p l y  to  R e s p o n d e n t s ’ P a r t  III, 
P o i n t  D.

The authorities cited by appellants at page 66 
of their opening brief is still the law of this 
state.

We have already replied to the authorities re­
lied on by respondents at page 109.

W e respectfully submit that the cases relied 
on by respondents do not hold that the existence 
of an equitable remedy bars mandamus.



- 5 0 -

In Spangenberg v. Western etc. Co. it was 
held mandamus would not lie to compel a trans­
fer of stock on the books of the corporation; 
there are cases where the facts show mandamus 
is more speedy but ordinarily a suit in equity to 
compel the transfer is more appropriate.

In Turney v. Morrissey, the Court held plain­
tiff not entitled to maintain mandamus because 
the defendants as trustees of a corporation by 
the equitable remedy may be compelled to render 
account and a court of equity may enquire if 
debts are paid and to pass upon any claims of 
trustee. There is no doubt as to the jurisdiction 
of equity over such questions.

In Ray v. California Home Building Loan Co., 
relied on by respondents, it was not held that the 
existence of an equitable remedy bars mandamus, 
but it was held that ordinarily mandamus will 
not lie to compel transfer of stock.

In Napa Union High School Dist. v. Board 
of Supervisors, relied on by respondents, we find 
no point supports the argument that the exist­
ence of an equitable remedy bars mandamus. 
The Court issued the writ of mandamus, holding 
that the Court’s attention is limited to those mat­
ters that appear on the face of the returns, and 
questions of fraud and illegal voting cannot be 
considered.

In McMullen v. Glenn Colusa Irr. District, 
cited by respondents, the Court did not hold that



•51—

the existence of an equitable remedy bars man­
damus, but said at page 700:

“ The office of mandamus is to compel the 
performance of a plain and positive duty. 
It is never granted in anticipation of an 
omission of duty, but only after actual de­
fault. Injunction is the proper remedy for 
threatened violation of duty entailing an 
injury for which the law gives no adequate 
compensation.”

In the case of Department of Public Works v. 
San Diego, it was not held that the existence of 
an equitable remedy bars mandamus, but that the 
act which is a police regulation provides an ade­
quate statutory remedy.

Petitioners respectfully urge the Court to care­
fully consider the authorities cited by respond­
ents. In our opinion they do not establish that 
the existence of an equitable remedy bars man­
damus.

Mandamus is only denied where the facts show 
a case of equitable cognizance.

It can be readily observed that in each of the 
cases cited by respondents the statement of the 
facts of each case show grounds for equitable 
jurisdiction. No questions of unconstitutional 
discrimination were involved.

The question, therefore, that looms challeng- 
ingly before respondents is this— by what au­



-5 2 -

thority is the equitable remedy of injunction 
more convenient, adequate, appropriate, complete, 
speedy and sure than mandamus to enforce rights 
of members of the public to use the only facility 
provided for the public and from which they are 
excluded? This question has not been answered.

15. R e p l y  to  R e s p o n d e n t s ’ P a r t  III, 
P o i n t  E.

Counsel for respondents now concede in Part 
III, Point E, that certain recitals and motions 
in the judgment are not true.

Respondents contend the fact that the judg­
ment was incorrect in this respect does not vitiate 
the judgment. The Court’s decision on the point 
was of such magnitude to us we vigorously 
urged the point on our motion for a new trial 
over counsels’ objection.

Since the judgment on its face showed a mo­
tion was granted excluding evidence, this raised 
the question of the propriety of such a ruling. 
For the purpose of bringing the excluded evi­
dence before this Court petitioners availed them­
selves of the provisions of Section 953a of the 
Code of Civil Procedure.

Respondents contend that the evidence estab­
lishes several defenses.



— 53—

We respectfully submit that the evidence of 
respondents covers only two points, namely: 
population, which they have asked that judicial 
notice be taken (at page 74) ; and the other de­
fense, that the plunge is self-supporting. We be­
lieve that the Court may likewise take judicial 
notice that facilities owned and maintained by a 
municipal corporation for the public remain pub­
lic in character notwithstanding it is partially 
maintained from the charges for admission.

Respondents make the statement that there 
was no evidence before the Court, therefore the 
record is misstated when I say the motion was 
understood as a demurrer to the evidence. Coun­
sel in his argument was willing to concede that 
the evidence would prove the allegations of the 
petition.

The Court refused to grant such relief as the 
record would warrant although it had the power 
to do so. (See App. Op. Br. pp. 68 to 73.) One 
of the questions on appeal is whether the trial 
court erred in doing so.

This is an appeal under Section 953a of the 
Code of Civil Procedure and the argument of 
respondents that the transcript is not properly a 
part of this method of appeal is palpably er­
roneous.



— 5 4 -

Conclusion.

We earnestly seek a reversal of the judgment 
of the lower court.

Upon the facts stated in the petition many 
questions are presented to this Honorable Court 
to pass upon and to doubtless forever put at 
rest many palpably erroneous interpretations of 
the law that render permanent peace impossible 
and keep alive a conflict of races, the continuance 
of which do harm to all concerned. It is at once 
apparent from the trial court’s ruling that the 
record presented did not warrant the granting 
of any relief to petitioners. It is submitted that 
the judgment of the trial court must be reversed. 
In that event, the appellate tribunal has the 
power to issue the writ of mandamus or give 
such relief as the record presented will warrant.

Johnson v. Fontana County Fire District, 
99 Cal. Dec. 308.

By what authority do respondents contend 
that equity furnishes an adequate and appropri­
ate remedy for the case at bar. In all of the 
cases cited by respondents holding that equity 
furnishes an adequate remedy there were facts 
presenting a case of equitable cognizance. The 
facts in the case at bar do not present a case of 
equitable cognizance but one for the extraordi­
nary remedy of mandamus. Furthermore, the 
existence of a remedy in equity is no bar to the 
remedy of mandamus.



— 5 5 -

The authorities are quite clear that mandamus 
will lie where a party has no plain, speedy and 
adequate remedy in the ordinary course of law. 
It has been held the proper remedy in swimming 
pool and school cases in other states as well as 
this state. The important cases of Kern v. City 
Commissioners of the City of Newton; Patter­
son v. Board o f Education; Missouri ex rel. 
Lloyd Gaines v. Missouri; McCabe v. Atchison, 
Topeka & Santa Fe and the many others cited 
in our briefs support our contention that the 
petition states a cause of action and that man­
damus is the proper remedy.

We admit that respondents by their Charter 
have the power to regulate the swimming pool, 
but a positive duty is imposed on respondents 
to maintain the swimming pool and its facilities 
for the public. (Pasadena City Charter, Art. I, 
Sec. 2, Subsection 19.) But respondents have no 
such power to separate the races or to exclude 
petitioners from privileges granted to other 
races.

The exclusion of petitioners because of their 
race is not only in violation of law, but against 
the policy of the law. The one and only excep­
tion to the rule is the statute prohibiting inter­
marriages. Deed restrictions are not the result 
of legislative enactments, but private contracts.

It has been well said the purpose of the 14th 
Amendment to the United States Constitution is 
to remove the race lines from our governmental 
system.



- 5 6 -

In conclusion, the 14th Amendment to the 
United States Constitution is well interpreted by 
the Honorable U. S. Supreme Court Justice 
Harlan, who ably said:

“The words of the amendment, it is true, 
are prohibitory, but they contain a necessary 
implication of positive immunity, or right, 
most valuable to the Colored race— the right 
to exemption from unfriendly legislation 
against them distinctively colored— exemp­
tion from legal discrimination implying in­
feriority in civil society lessening the secur­
ity of their enjoyment of rights which 
others enjoy, and discriminations which are 
steps toward reducing them to the condition 
of a subject race.”

It is, therefore, respectfully submitted that the 
judgment of the lower court should be reversed. 
Further, that the writ of mandamus issue.

Respectfully submitted,
T h o m a s  L. G r i f f i t h , J r ., 

Attorney for Petitioners and Appellants.







7WT

2nd C i v i l  N o .

In the Supreme Court of the 
State of California

CHARLES STONE, W IL L IA M  J. BROCK, 
W . H. H ARRISO N, JAMES PRICE, FRED­
ERICK  M. JAMES, JR., FREDERICK D. 
SM ITH,

Petitioners and Appellants, 

vs.

BO ARD  OF DIRECTORS OF TH E CITY OF 
PASADENA, a municipal corporation; and 
ED W AR D  O. NAY, M ILTON  S. BRENNER, 
RO BE RT E. DAW SON, CARL G. W O P - 
SCHALL, ALBERT I. STEWART, G. L. 
SCHULER and CHARLES C. HAMILL, con­
stituting the members of said Board; W. H. 
N ICH OLAS, Superintendent of Parks of the City 
of Pasadena; C. W. KOINER, City Manager of 
the City of Pasadena; FRANK HALE, JOHN 
DOE and RICH ARD  ROE,

D efendants and Respondents.

APPEAL FROM TH E SUPERIOR COURT OF LOS ANGELES CO. 
HON. CLEMENT D. NYE, JUDGE.

A N S W E R  OF APPELLAN TS TO  
P E T ITIO N  FOR HEARING.

T homas L. Griffith , Jr.,
1105 East Vernon Avenue, Los Angeles, 
Attorney for Petitioners and Appellants.

Parker &  Baird Company, Law Printers, Los Angeles.









rU>

& £&z2
a_

In the Supreme Court Dr the 
State of California

CHARLES STONE, W IL L IA M  J. BROCK, 
W . H. H ARRISON, JAMES PRICE, FRED­
ERICK  M. JAMES, JR., FREDERICK  D. 
SMITH,

Petitioners and Appellants, 

vs.

BOARD OF D IRECTORS OF TH E CITY OF 
PASADENA, a municipal corporation; and 
E D W AR D  O. NAY, M ILTO N  S. BRENNER, 
R O BE RT E. DAW SON , CARL G. W O P - 
SCHALL, ALBERT I. STEWART, G. L. 
SCHULER and CHARLES C. HAMILL, con­
stituting the members of said Board; W. H. 
NICH OLAS, Superintendent of Parks of the City 
of Pasadena; C. W. KOIN ER, City Manager of 
the City of Pasadena; FRANK HALE, JOHN 
DOE and RICH ARD  ROE,

Defendants and Respondents.

A N S W E R  OF APPELLAN TS TO  
P E T ITIO N  FOR HEARING.

An analysis of the petition for hearing before 
the Supreme Court filed by the respondents, in­
dicates that the sole contention made is that the 
District Court of Appeal erred in not holding 
that the respondents, who are the agents and em­
ployees and representatives of the City of Pasa­
dena, a Chartered Municipal Corporation of this 
state, have power to separate the races in the



•2—

use and enjoyment of the facilities and privi­
leges the municipal corporation has provided. 
This contention is based upon a line of decisions 
upholding the constitutionality of state statutes 
providing for the segregation of the races. The 
respondents, however, entirely overlook the fact 
that there must be constitutional or statutory au­
thority for the separation of the races, and in 
the absence of such constitutional or statutory 
authority there can be no separation of the races. 
As it was said in Piper v. Big Pine School Dis­
trict, 193 Cal. at page 671:

. . No separation can be had, how­
ever, in the absence of statutory or consti­
tutional authority therefor. (Ward v. Flood, 
supra; Wysinger v. Crookshank, 82 Cal. 558 
[23 Pac. 54]; Crawford v. School District 
etc., 68 Or. 388 [Ann. Cas. 1915C, 477, and 
note, 50 L. R. A. (N. S.) 147, 137 Pac. 
217]; Lehew v. Brummell, 103 Mo. 546 [23 
Am. St. Rep. 895, 11 L. R. A. 828, 15 S. 
W. 765]; United States v. Buntin, 10 Fed. 
730, and note; Roberts v. City of Boston, 
59 Mass. (5 Cus.) 198; People etc. v. Gal­
lagher. 93 N. Y. 437 [45 Am. Rep. 232]; 14 
R. C. L., Sec. 18, p. 122; 35 Cyc. 1111.)”

Respondents offer nothing new in their peti­
tion for hearing which is for the most, a reitera­
tion of the material contained in their reply brief. 
We, therefore, respectfully call this Honorable 
Court’s attention to appellants’ opening brief



— 3 —

and appellants’ reply brief in answer to the argu­
ments of respondents. We submit that respond­
ents’ arguments were fully considered and found 
of little value in the case at bar by the Appel­
late Court’s opinion. The authorities relied upon 
by respondents are not applicable to the case and 
do not support the theory they advance that the 
remedy of injunction is adequate and proper to 
give the relief sought by the petitioners. As a 
matter of fact, respondents have advanced the 
argument that appellants have no remedy what­
soever in the case at bar. They state in their 
brief at page 46, lines 14 to 21, at follows:

Of course in arguing that peti­
tioners’ remedy is in equity, and that the ex­
istence of such a remedy bars the present 
action, w e  do  n o t  i n f e r  t h a t  a n y  w r i t  
WOULD ISSUE ON TH EIR BEHALF. It would 
be necessary for them to establish a sub­
stantive right thereto. In fact, as we pointed 
out in Point 1, supra, we believe that peti­
tioners’ exclusive remedy is an action for 
damages under Section 52 of the Civil Code, 
and that the courts will not specifically en­
force either by mandamus, injunction or 
otherwise alleged violations of civil rights 
acts. . .

That the opinion of the District Court of Ap­
peal correctly holds that Section 51 of the Civil 
Code creates a substantial right enforcible by 
mandamus, is supported by the great weight of



4

authorities in this state and other states, as well. 
The Ward v. Flood case, 48 Cal. 36, has held 
that a writ of mandamus will issue to compel the 
admission of a party to the enjoyment of a sub­
stantial right. We submit that Section 51 of the 
Civil Code clearly expresses such right. Neither 
Section 51 nor 52 makes Section 52 the exclusive 
remedy for violation of the rights created under 
Section 51. Section 52 permits an action for 
damages for violation of Section 51, but a party 
is not required to pursue that remedy. We sub­
mit that Section 51 creates a substantial right, 
and by the unlawful preclusion of that right, 
mandamus will lie pursuant to Section 1085 of 
the Code of Civil Procedure.

It is, therefore, the position of the petitioners 
and appellants that the argument advanced by 
respondents that Section 51 of the California 
Civil Code is not applicable to a chartered mu­
nicipal corporation, is hardly worthy of con­
sideration. In Section 51 the legislature has re­
quired that full and equal accommodations and 
facilities be given to all citizens within the jur­
isdiction of this state. Discrimination is not in­
cluded in the section. To hold, as respondents 
claim, that chartered municipal corporations by 
virtue of availing themselves of the provisions of 
the constitution as amended in 1914, frees them 
from the operation, restriction and command­
ments of general laws, is to hold that municipal



— 5—

corporations that have not availed themselves of 
the constitutional provisions must extend rights 
to citizens under Section 51, that are not required 
of municipal corporations acting under the mu­
nicipal affairs doctrine. In that event, citizens 
of California would be constantly put on inquiry 
as to their rights under Section 51, unless they 
knew the nature and extent of the corporate 
powers of the city in which they resided. We 
submit that it wras the intention of the legis­
lature to confer the right to all citizens regard­
less of the place in which they reside, and that 
it was not the intention of the law makers to 
confer the rights on some persons and withhold 
them from others. When Section 51 of the Civil 
Code was adopted, it was intended that a reason­
able construction would be placed upon the sec­
tion and that all citizens be afforded equal rights 
to the peculiar services afforded by those agencies 
enumerated in the section for the accommodation 
and entertainment of the public.

It is respectfully submitted that the opinion of 
the Appellate Court has correctly made applica­
tion of long established principles of law to the 
facts stated in the first amended petition for a 
writ of mandamus.

Respectfully submitted,

T h o m a s  L. G r i f f i t h , J r ., 

Attorney for Petitioners and Appellants.





BRIEF FOR APPELLANTS.

United States Circuit Court of Appeals
FOURTH CIRCUIT.

No. 2900.

THE CITY OF RICHMOND, A MUNICIPAL CORPO­
RATION, J. FULMER BRIGHT, JAMES R. 
SHEPPARD, Jr., R, B. JORDAN, AND JAMES 
E. CANNON, THE FOUR LATTER IN THEIR 
OFFICIAL CAPACITY AS MAYOR, DIREC­
TOR OF PUBLIC SAFETY, CHIEF OF POLICE, 
AND CITY ATTORNEY OF RICHMOND, VIR­
GINIA, A ppellan ts ,

versus
J. B. DEANS, A ppellee,

A ppeal from  t h e  D istrict  C ourt of t h e  U nited  States 
for t h e  E astern  D istrict  of V irgin ia , 

a t  R ic h m o n d .

J am es E . Ca n n o n , 
L u ciu s  F. C ar y , 
Counsel for Appellant.

..................... ....
RICHMOND PRESS, INC., PRINTERS

SEP 26 1925;

O L A U D E





United States Circuit Court of Appeals
FOURTH CIRCUIT.

No. 2900.

THE CITY OF RICHMOND, A MUNICIPAL CORPO­
RATION, J. FULMER BRIGHT, JAMES R. 
SHEPPARD, Jr., R, B. JORDAN, AND JAMES 
E. CANNON, THE FOUR LATTER IN THEIR 
OFFICIAL CAPACITY AS MAYOR, DIREC­
TOR OF PUBLIC SAFETY, CHIEF OF POLICE, 
AND CITY ATTORNEY OF RICHMOND, VIR­
GINIA, A ppellan ts ,

versus

J. B. DEANS, A ppellee.

A ppeal  from  t h e  D istrict  C ourt  of t h e  U nited  S tates 
foe t h e  E astern  D istrict  of V irgin ia , 

a t  R ic h m o n d . I n  E q u ity .

B rief  for A ppellan ts .

STATEMENT OF THE CASE.

(Italics will be ours, unless otherwise noted.)

This is a bill in equity brought by the appellee to 
enjoin the appellants from enforcing an ordinance of the



2

City of Richmond, approved February 15, 1929 (Record, 
p. 3), to preserve the racial integrity of its citizens by 
prohibiting the close proximity of residences of persons 
forbidden to intermarry by a statrrte of Virginia., en­
titled “ An Act to preserve racial integrity” , approved 
March 20, 1924. (Record, p. 9.)

The appellee’s bill of complaint alleges that the 
owner had agreed to sell and he agreed to purchase a 
house in the City of Richmond in a block prohibited 
to persons with whom the appellee and his family are 
prohibited from intermarrying, and also that said per­
sons are prohibited from intermarrying with appellee 
and his family.

Appellee relies for relief upon Section 1 of the 14th 
Amendment to the Federal Constitution, as well as upon 
Acts of Congress set forth in Title 8, Chap. 3, Sections 
41 and 42, U. S. C., because under said Act and ordi­
nance appellee is deprived of his right to use the build­
ing as a residence, because the ordinance operates to un­
lawfully separate the negro from the white race in tlve 
use of places of residence in the City of Richmond, 
because appellee’s property right in said house is not 
limited to owning, leasing and selling the same, but in­
cludes his right to use the building as a. residence, and 
because the ordinance unlawfully and unreasonably dis­
criminates against the appellee on account of his race 
and color in the use of said house as a residence. Such 
is the case alleged in the bill of complaint under which 
appellee invokes rights under said Amendment and 
Acts.

Appellants on April 2nd, 1929, tiled a motion in 
writ'ng to dismiss the bill of complaint (Record, p. 16), 
alleging that the ordinance complained of did not af­
fect any rights of acquisition, but only the use of the same 
as therein provided, and, that therefore the existence and 
maintenance of the ordinance did not constitute a pres­
ent invasion of the alleged right to use said property,



3

as said alleged right had not been acquired as yet, and 
so no grounds were laid to invoke the equitable juris­
diction of the Court as prayed for. Whereupon, the 
appellee asked, and the Court granted the appellee, the 
right to amend his bill of complaint, so as to allege that 
the appellee “ has now the right to use said house and 
lot as his residence given him by said Joshua R. Griffin 
under the above circumstances”  (Record, p. 15), thereby 
admitting by his pleading, in order to invoke the equita­
ble jurisdiction of the Court, that the ordinance did 
not affect any rights of acquisition of property, but 
only the use of the same.

Whereupon, appellants on April 12th, 1929, filed a 
further motion in writing to dismiss the bill of complaint 
(Record, p. 17), which motion was denied in a memo­
randum of Court (Record, p. 22), and a decree was en­
tered and filed on May 22nd, 1929, enjoining and re­
straining appellants as prayed in the bill of complaint 
(Record, p. 23), whereupon the appellants filed its As­
signment of Errors on June 14th, 1929, and prayed that 
said decree of May 22nd, 1929, be reversed and the 
cause remanded with directions to dismiss the bill of 
complaint, and for such other and further relief as may 
be proper in the premises (Record, p. 24). And on 
June 14th, 1929, an order was entered allowing appel­
lants an appeal and fixing the amount of their appeal 
bond (Record, p. 27).

I.

ARGUMENT.

A reading of the bill of complaint shows that the 
appellee admits that he and his family are colored per­
sons and not white persons, and that a majority of the 
persons living on both sides of the street in the block 
on which said house is located are white persons, as de­
fined in the Virginia racial integrity Act, and that the



4

said white persons are forbidden to intermarry with the 
appellee, and that the appellee is forbidden to inter­
marry with said white persons under said Act.

The bill of complaint shows that the ordinance be­
came effective on February 22nd, 1929, when the ap­
pellee had no right to use the building as a residence, so 
no vested, right was divested, and that the appellee 
agreed to purchase the budding- on March 26th, 1929, 
with full knowledge that the use of the property for resi­
dential purposes was restricted by the ordinance.

The ordinance expressly excepts from its operation 
the right existing in any person at the time of the passage 
of the ordinance to use a building as a residence, no 
vested rights are divested, and any right acquired subse­
quently would be acquired subject to the restrictions 
as to use, as provided in the ordinance. There is noth­
ing in the ordinance that affects the acquisition or dispo­
sition of any property in the City of Richmond. The or­
dinance solely restricts the use of property regardless 
who owns it, white or colored.

The only issues presented by the bill of complaint 
are that the ordinance affects appellee’s right to use the 
property as a residence, and that the separation of white 
and colored races, in the circumstances, is unreasonable 
and discriminatory.

IT.

The free use of property is not a right protected by 
/he said Amendment and said Acts of Congress, and ap­
propriate regulation of the use of property is not de­
priving one of property within the meaning of said 
Amendment, under which statement we will discuss gen­
erally Assignment of Errors Nos. 2, 3, 4, 5, 8, 14 and 
17.

An early opinion of the Supreme Court of the United 
States concerning the regulation of the use of prop-



5

erty by Councils of cities where the use was not a com­
mon law nuisance, was the case of Buchanan v. Warley, 
62 Law Ed. 19.

The Louisville, Kentucky, ordinance in that case 
made it unlawful for a “ colored person”  to move into and 
occupy as a residence any house upon a block where a 
majority were “ white people”  and vice versa. And the 
purpose of the ordinance was declared simply to pre­
vent conflict and ill feeling and preserve public peace 
and promote the general welfare. That ordinance, did 
not deal with cm attempt to prohibit the amalgation of 
the races,, as does the ordinance in the instant case, a 
distinction pointed out in the opinion of the court in that 
case, and to which special reference will later be made.

The Buchanan v. Warley case was decided in the 
year 1917* At that time the state courts were divided 
on the power of Counc'Is to regulate the use of property 
by segregating business and residential uses. Some 
state courts, narrowly limiting the power of Councils, 
held that Councils only had the power to regulate the 
use of property where the use constituted a common 
law nuisance; other state courts, taking the broader 
view, held that Councils had this power where the regu­
lation of the use bore a rational relation to the health, 
morals, good order and general welfare of the com­
munity.

In the Buchanan v. Warley case, the Supreme Court 
then took the view that property included the right 
to acquire, use and dispose of it* and that the Constitu­
tion of the United States protected these essential at­
tributes of property. That “ property”  included the 
free use, enjoyment and disposal of a person’s acquisi­
tions without control or diminution save by the law of 
the land, which it said could control, and regulate such 
cases as livery stables and brick yards, and the like 
(common law nuisances) but that such cases did not



6

touch the Louisville ordinance case. The Supreme 
Court held that the Louisville ordinance debarred a 
sale of property to colored persons, because, if sold, it 
could not be used by the purchaser, that free use was 
protected by the Constitution, and that the interdiction 
was based wholly upon color, simply that and nothing 
more. The Supreme Court’s decision of that case rested 
on the ground that in view of the property rights se­
cured by the 14th Amendment, to-wit: the right to ac­
quire, use and dispose of property, legislation could not 
be sustained where the exercise of authority exceeds the 
restraints of the Constitution, or in other words, denies 
fundamental constitutional rights, and it decided that the 
f  ree use of property was a constitutional right, unless the 
use of property amounted to a common law nuisance, and 
that the case presented did not amount to a common 
law nuisance.

Said the Court,: “ The 14th Amendment protects life, 
liberty and property from invasion by the states with­
out due process of law. Property is more than the 
mere thing- which a person owns. It is elementary that 
it includes the right to acquire, use and dispose of it. 
The Constitution protects these essential attributes of 
property, ’ ’

This decision rested on exactly the same ground 
that some of the state courts narrowly limiting the 
power of Councils, rested their decisions concerning the 
segregating of business and residential uses.

The power of Councils was narrowly limited in the 
Uuclianan v. Warley case and also in the later case of 
Ambler Realty Co. v. Village of Euclid, 297 Fed. 307. 
'Flic latter was a case where sixty-eight acres of vacant 
land, held for industrial purposes, were segregated or 
zoned by ordinance to different, uses, and it was claimed 
by the owners that the ordinance restricted lawful uses



7

contrary to the 14th Amendment, and the District Court
said: .

“ Buchanan v. Warley, 245 U. S. 80, * ’ # * 
in which an ordinance of the city of Louisville, held 
by the state Supreme Court to be valid and within 
the legislative power delegated to the City, district­
ing and restricting residential blocks so that the 
white and colored races should be segregated, was 
held to be a violation of the Fourteenth Amend­
ment and void. It seems to me that no candid mind 
can deny that more and stronger reasons exist, 
having a real and substantial relation to the public 
peace supporting such ■ an ordinance than can be 
urged under any aspect of the police power to sup­
port the present ordinance as applied to plaintiff’s 
property.”

This Ambler V. Euclid case is significant and im­
portant for two other reasons:

First, it construes the Supreme Court’s decision in 
(he Buchanan v. Warley case to be as we have stated it 
to be; on page 313, the court said:

“ The argument supporting this ordinance pro­
ceeds, it seems to me, both on a mistaken view of 
what is property and what is police power. Prop­
erty, generally speak’ng, defendant’s counsel con­
cede, is protected against a taking without compen­
sation, by guarantee of the Ohio and United States 
Constitutions. But their view seems to be that so 
long as the owner remains clothed with the legal 
title thereto and ;s not ousted from, the physical pos­
session thereof, his property is not taken, no mat­
ter to what extent his right to use it is invaded 
or destroyed or its present or prospective value is 
depreciated. This is an erroneous view. The right 
to property, as used in the Constitution has no such 
limbed meaning. As has often been said is (in) 
substance by the Supreme Court: ‘ There can be 
no conception of property aside from its control 
and use and upon its use depends its value * * *



8

‘ Property is more than the mere thing which 
a person owns. It is elementary that it includes 
the right to acquire, wseand dispose of it. The 
Constitution protects these essential attributes of 
property. (Cases cited.) Property consists of the 
free use, enjoyment, and disposal of a person’s ac­
quisitions without control or diminution save by 
the laws of the land’.”

Second, this decis'on is significant and important as 
the United States Supreme Court reversed it in Euclid 
v. A mbler. 71 Law Ed. 303, and held that Councils could 
regulate the use of property where the regulation bore 
a rational relation to the general welfare of the com­
munity, thereby clearly reversing its former decision 
in the Buchanan v. Warley case, as some state courts 
did in their later decisions, and the United States Su­
preme Court adopted what it called, in the Euclid v. Am­
bler case, “ the broader view” .

In the circumstances some statements of the United 
States Supreme Court in the Euclid v. Ambler case are 
in point and decisive, as the law of the land (due pro­
cess of law), in the instant case. The United States 
Supreme Court said in the following quotations from 
(he Euclid v. Ambler case:

“ The ordinance is assailed on the grounds that 
it is in derogation of Sec. 1 of the 14th Amendment 
to the Federal Constitution in that it deprives ap­
pellee of liberty and property without due process 
of law and denies it the equal protection of the law.”  
The ordinance in the instant case is assailed on the 
same grounds.

“ It is specifically averred that the ordinance at­
tempts to restrict and control the lawful uses of 
appellee’s land so as to confiscate arid destroy a 
great part of its value;”

“ It is not necessary to set forth the provisions

Buchanan w Warley, 245 U. S. 78' *  '*  *  In the
case last cited Mr. Justice Day says:



9

of the Ohio Constitution which are thought to be 
infringed. The question is the same under both Con­
stitutions, namely, as stated by appellee: Is the or­
dinance invalid in that it violates the constitutional 
protection ‘ to the right of property in the appel­
lee by attempted regulations under the guise of the 
police power, which are unreasonable and confis­
catory’ ?”

No claim can be made that the instant ordinance in­
fringes the Virginia Constitution, as the Supreme Court 
of Virgim'a has held such an ordinance valid under the 
Virginia and United States Constitution, in the case of 
Hopkins V. Richmond, 117 Va. 692.

Continuing quotat ons from the Euclid v. Ambler 
case:

“ Until recent years, urban life was compara­
tively simple; but with the great increase and con- 
centration of population, problems have developed, 
and constantly are developing, which require, and 
will continue to require, additional restrictions in 
respect of the use and occupation of private lands 
in urban communities. Regulations, the wisdom, 
necessity and validity of winch, as applied to exist­
ing conditions, are so apparent that they are now 
uniformly sustained, a century ago, or even half a 
century ago, probably would have been rejected as 
arbitrary and oppressive. Such regulations are 

. sustained, under the complex conditions of our 
day. ’ ’

Language could hardly be clearer to justify and 
authorize the Council of the City of Richmond to pass 
the instant ordinance, charged as the Council is with the 
primary duty and responsibility of determining the 
question.

“ The ordinance now under review and all simi­
lar laws and regulations must find their justifica-



10

tion in some aspect of the police power, asserted 
the public welfare.”

The instant ordinance is a similar law and regula-
I ion.

“ A nuisance may be merely a right thing in the 
wrong place,—like a p:g in the parlor instead of 
the barnyard. I f ' the validity of the legislative 
classification for zoning purposes be fairly debat­
able, the legislative judgment must be allowed to 
control. Radice v. New York, 264 U. S. 292, 68 L. 
Ed. 690, 694, 44 Sup. Ct Rep. 325.”

• Residence of persons forbidden to intermarry in 
close proximity to one another is simply and exactly 
what the Supreme Court said, “ a rght thing in a wrong 
place” , if the Council’s classification or separation of 
races for the purpose of restriction in residential dis­
tricts be fairly debatable, then the Council’s judgment 
must be allowed to control, so said the Supreme Court. 
We intend to show later that the classification or sepa­
ration of the races made in the ordinance is unquestion­
ably and fundamentally sound.

Without quoting, we call the Court ’s attention to the 
Supreme Court’s recognition and distinction between 
the before mentioned conflicting decisions of the State 
courts on the subject. The Supreme Court mentioned 
(lie decisions narrowly limiting the power of Councils, 
and the decisions sustaining the “ broader view” , noted 
the. decided trend toward the broader view, and said it 
was significant that in some instances the State courts 
in later decisions reversed their former decisions hold­
ing the other way. And the Supreme Court then 
adopted and applied the “ broader view” , and so grace­
fully but unquestionably reversed its former decision 
in the Buchanan v. Warley case. The Buchanan v. War- 
ley case held that free use of property was a Constitu­
tional right, unless the use constituted a common law 
nuisance, and any legislation that denied this right was



11

in conflict with the Constitution. The Euclid y. Am­
bler case reversed the Ambler y. Euclid case holding the 
same, and decided that the use of property could be 
regulated or restricted by Councils where the regula­
tion or restriction bears a rational relation to the gen­
eral welfare of the community.

Continuing quotations from the United States Su­
preme Court in the Euclid v. Ambler case:

£ ‘ The segregation of industries, commercial pur­
suits and dwellings to particular districts in a city, 
when exercised reasonably, may bear a rational re­
lation to the health, morals, safety and general wel­
fare of the community.”

“ Segregation”  is approved, and there can be no le­
gal difference between segregating commercial pur­
suits and dwellings, and segregating residential dis­
tricts to separate uses, when either bears a rational re­
lation to the general welfare, peace, racial integrity, 
morals and social good order of the community.

‘ 'The exclusion of places of business from resi­
dential districts is not a declaration that such places 
are nuisances or that they are to be suppressed as 
such,' but it is a part of the general plan by which 
the city’s territory is allotted to different uses in or­
der to prevent, or at least to reduce, the congestion, 
disorder and dangers which often inhere in unregu­
lated municipal development.”

This holding equally applies and is true of the in­
stant case.

" I f  the municipal council deemed any of the 
reasons which have been suggested, or any other 
substantial reason, a sufficient reason for adopting 
the ordinance .in question, it is not the province of 
the courts to take issue with the council. We have 
nothing to do with the question of the wisdom or 
good policy of municipal ordinances.”



Which is simply a recognition of the fact the States 
never intended, by adopting the 14th Amendment, to im­
pose restraints upon the exercise of their power for the 
protection of the general welfare, peace, racial integ­
rity, morals and social good order of the community. To 
which reference will be later made.

And finally the United States Supreme Court said 
in the Euclid v. Ambler case:

“ If these reasons, thus summarized, do not de­
monstrate the wisdom or sound policy in all re­
spects of those restrictions which we have indi­
cated as pertinent to the inquiry, at least, the rea­
sons are sufficiently cogent to preclude us from 
saying, as it must be said before the ordinance 
can be declared unconstitutional, that such provis­
ions are clearly arbitrary and unreasonable, having 
no substantial relation to the public health, safety, 
morals, or general welfare.”

. It is confidently submitted that the Buchanan v. 
i Varley case adopted the view, taken by many State 
courts, narrowly limiting the power of Councils, to-wit, 
that the free use of property was protected by the Fed­
eral Constitution unless the use constituted a common 
law nuisance, and under which view the Louisville ordi­
nance was held to be unconstitutional, but that in the 
Euclid v. Ambler case the Supreme Court adopted the 
“ broader view”  of the power of Councils to regulate 
the use of property where the restrictions bear a rational 
relation to the general welfare of the community and 
under the broader view and its reasoning, the instant or­
dinance cannot be held unconstitutional.

The cardinal rule in construing a legislative enact­
ment is that it must be regarded as valid unless it can 
lie clearly shown to be in conflict with the Constitution.

“ Every presumption should be indulged in 
favor of the constitutionality of the legislation. In 
Sweet 'v. Rechel, 59 IT. S. 380, 382, 40 L. Ed. 188,



13

193, 16 Sup. Ct. Rep. 43, 46, it was said: ‘ But in de­
termining whether the legislature, in a particular 
enactment, has passed the limits of its constitutional 
authority, every reasonable presumption must be in­
dulged in favor of the validity of such enactment. 
It must be regarded as valid unless it can be clearly 
shown to be in conflict with the Constitution. It is 
a well settled rule of constitutional exposition that 
if a statute may or may not be, according to the cir­
cumstances, with'n the limits of legislative authority, 
the existence of the circumstances necessary to sup­
port it- must be presumed.”  Home Teleph. & Teleg. 
Co. v. Los Angeles, 53 Law Ed. 176, 186.

Bearing this rule of the United States Supreme 
Court in mind without its repetition, the ordinance, under 
the decisions of the United States Supreme Court can­
not be clearly shown to be in conflict with the Constitu­
tion, and so must be regarded as valid.

Under the decision in the Euclid v. Ambler case 
free use can unquestionably now be regulated as therein 
stated without conflicting with the 14th Amendment. In 
other words, the 14th Amendment does not now protect 
the free use of property, and free use of property can 
now be regulated by Councils where the regulation bears 
a rational relation to the general welfaYe of the com­
munity, without conflicting with the 14th Amendment, 
under the decision of the United States Supreme Court in 
the Euclid v. Ambler case.

Concerning the Act of Congress cited in the Buch­
anan v. Warley case, and in the appellee’s bill of com­
plaint, the ordinance in the instant case does not touch 
any right stated in said Act of Congress. Said Act does 
not grant the right of free use of property, and that is 
the only right the ordinance affects, all other property 
rights being left untouched by the ordinance. But even 
if this were not so, said Act of Congress was enacted to 
carry into effect the provisions of the constitution, and



14

said Act, therefore, can afford no more protection than 
the Constitution itself. This common sense and legal rule 
was recognized and laid down by the Court of Appeals 
of District of Columbia in the case of Corrigan v. .Buck­
le.//, 299 Fed. 899, where the court said:

“ Defendant claims protection under certain 
legislation of Congress. As suggested in the opin­
ion of the learned trial justice, this legislation was 
enacted to. carry into effect the provisions of the 
Constitution. The statutes, therefore, can afford 
no more protection than the Constitution itself. If, 
therefore, there is no infringement of the defend­
ant’s rights under the Constitution, there can be 
none under the statutes.” .

This case involved an agreement between certain 
parties not to sell their properties to colored people and 
the agreement was claimed to be void in that it denied 
rights protected by the 14th Amendment. The court, in 
upholding the constitutionality of the agreement further 
said:

“ It follows that the segregation of the races, 
whether by statute or private agreement, where the 
method adopted does not amount to the denial of 
fundamental constitut’onal rights, cannot be held 
to be against pubb'c policy. Nor can social equality 
of the races be -attained either by legislation or by 
forcible assertion of assumed rights.”

This decision was approved by the United States 
Supreme Court in Corrigan V. Buckley, 70 Law Ed. 969.

That decision is equally true in the instant case, 
and its logic is dec’sive of the instant case. To para­
phrase, it follows that the separation of the races by 
the instant ordinance, where the Council, in the exercise 
of expressly granted power, have regulated the use of 
property for the general welfare of the community, and



15

which, regulation bears a rational relation to the general 
welfare, does not amount to the denial of fundamental 
<:onstitutional rights.

The Supreme Court of Virginia in the case of Hop­
kins v. Richmond, 117 Va. 692, in a very able opinion 
has held that an ordinance separating the colored and 
white races in use of property in residential districts 
was valid, and denied neither Virginia nor United States 
constitutional rights.

“ Every citizen holds his property subject to 
the proper exercise of this (police) power either by 
the State legislature directly or by municipal corpo­
rations to which the legislature may delegate it. 
Laws and ordinances relating to the comfort, health, 
convenience, good order and general welfare of the 
inhabitants are comprehensively styled ‘Police Laws 
or Regulations ’ ; and it is well settled that laws and 
regulations of this character, though they may dis­
turb the enjoyment of individual rights, are not un­
constitutional, though no provision is made for 
compensation for such disturbances. They do not 
appropriate private property for public use, but 
simply regulate its use and enjoyment by the owner; 
if he suffers injury, it is either damnum absque in­
juria, or, in the theory of the law, he is compensated 
for it by sharing in the general benefits which the 
regulations are intended and calculated to secure. 
The citizen owuis his property absolutely, it is true; 
it cannot be taken from him for any private use 
whatever without his consent, nor for any public 
use without compensation. Still he owns it subject 
to this restriction, namely, that it must be so used 
as not to injure others, and that the sovereign au­
thority may, by police regulations, so direct the use 
of it that if shall not prove pernicious to his neigh­
bors, or the citizens generally. Those regulations 
rest upon the maxim, salus populi suprema est lex. 
This power to restrain a private injurious use of 
property !s very different from the right of eminent 
domain.' It is not a taking of private property for 
public use’, etc. 1 Dillon Mun. Corp. (3rd Ed.) sec. 
141.”  Hopkins v: Richmond, 117 Va. 712.



16

This decision holds that cities and towns in Virginia 
had implied authority to pass such an ordinance under 
the general statute to “ preserve the peace and good or­
der”  within their limits, and it was under the authority 
of that general welfare statute that the ordinance in that 
case was passed, and held valid by the Virginia Supreme 
Court, The Court also stated on page 105:

“ As before observed, the ordinance under con­
sideration was passed on the l'2th day of September, 
1911, and the following March (1912), the legisla­
ture of Virginia solemnly declared that the resi­
dences of white and colored citizens in close prox­
imity to one another in the cities and towns through­
out the State endangered the preservation of public 
morals, public health, and public order, and they 
proceeded to empower the cities and towns of the 
State to pass ordinances providing for segregation of 
the races within their limits. Acts 1912, page 330.”

This act of 1912 conferred express authority upon 
cities and towns in Virginia to provide separate residen­
tial districts for wdiite and colored races.

Section 11 of this Act provided :

“ 11. Tlrs act shall apply only to the cities and 
towns which by a recorded vote of a majority of the 
members elected to the conned thereof, or if there be 
two branches of such council by a recorded vote of 
a majority of the members elected to each branch 
thereof, shall adopt the provisions of this act, and in 
all respects comply with the requirements hereof.”

In 1916 (Acts 1916, p. 60) compliance with the re­
quirements of the 1912 Act were removed, as the follow­
ing proviso to said section 11 was added and enacted:

“ Provided, however, that nothing herein con­
tained shall be taken or construed to take away from 
any city or town, not adopting this act, any power or



17

authority the said city or town may have, by reason 
of the provisions of their respective charters, or of 
general law, to pass ordinances regulating the segre­
gation of the residences of white and colored per­
sons, and all such ordinances heretofore passed by 
cities and towns, not adopting this act, are hereby 
ratified and confirmed, to the same extent as if the 
said cities and towns had been specially thereunto 
authorized.

An _ emergency existing because of the rapid 
growth in the population of several cities and towns 
of the Commonwealth this act shall take effect from 
its passage.”

This proviso was added in accordance with the Hop­
kins v. Richmond decision, as Hopkins v. Richmond had 
already held in 1915, on page 703 of the opinion, that the 
passage of this Act of 1912 did not preclude the existence 
of power hitherto, and that cities and towns had the 
implied and incidental power do pass such ordinances' 
under the exercise of police power conferred upon them 
by general law in section 1038 of the Code of 1904, now 
section 3033 of the Code of 1919, The general welfare 
clause in section 19 of the Charter of the City of Rich­
mond gives much broader powers than said section 3033 
gave. So cities and towns of Virginia are now expressly 
authorised to pass ordinances for the separation of races 
within their limits under the provisions of the general 
Jaw or of their charters, and in such manner as in their 
discretion is deemed advisable.

The legal principles decided in Hopkins v. Richmond 
are the same as adopted in the Euclid. v. Ambler case, 
and other recent decisions of the Supreme Court of the 
United States, and so the Supreme Court of the United 
States and of Virginia are now in accord on the legal 
principles which govern this case, and which are now 
sound settled law for Virginia. It was so considered by 
the Supreme Court of Virginia in the ease of Martin v.



18

Danville, 148 Va. 247, a case where an ordinance regu­
lated gas filling stations in residential districts, and the 
Court said:

“ However, this may be, we cannot say that the 
ordinance under review is ‘ clearly arbitrary and un- 
reasonble, having no substantial relation to the pub­
lic health, safety, morals, or general welfare’, Gorieb 
v. Fox, supra.”  71 Law Ed. 1228.

“ It is a settled rule of the Supreme Court of 
the United States, if the question of reasonableness 
is fairly debatable, to hold that it will not substitute 
its judgment for that of the legislative body charged 
with the primary duty and responsibility of deciding 
the question. Zahn v. Board of Public .Works, su­
pra.”  . 71 Law Ed. 1074.

In the case of Gorieb v. Fox, 71 Law Ed. 1228, the 
Supreme Court of the United States approved the de­
cision of the Supreme Court of Virginia in Gorieb v. 
Fox, 145 Va. 554, in upholding the validity of an ordi­
nance regulating the use of property by establishing set 
back lines for buildings.

In the Gorieb 'v. Fox case, the Supreme Court of the 
United States more fully said:

“ Since upon consideration we are unable to say 
that the ordinance under review is ‘ clearly arbitrary 
and unreasonable, having no substantial relation to 
the public health, safety, morals or general wel­
fare’, we are bound to sustain it as constitutional.”

So impressed were the members of the Supreme 
< ,'oiirt of the United States in the Euclid case with the 
principle that the 14th Amendment protected the free 
use of property where the use did not constitute a com­
mon law nuisance, that three out of eight judges dis­
sented, and the case was decided by a bare majority. 
Since then on May 31, 1927, the Gorieb v. Fox case was



19

decided by a unanimous court, and since then, on May 
1.6th, 1927, the Zahn v. Board of Public Works case was 
for the first time decided by a unanimous court, and the 
court first observed that the principles announced therein 
were “ the settled rule of this court’ ’.

The Zalin v. Board of Public Works case involved an 
ordinance regulating the use of property by segregating 
business and residential districts, and was assailed as 
being repugnant to the 14th Amendment, the court 
strengthened the rule in the Euclid v. Ambler case by 
saying:

! ‘ The common council of the city, upon these and 
other facts, concluded that the public welfare would 
be promoted by constituting the area, including the 
property of plaintiffs in eryor, a zone ‘ B ’ district; 
and it is impossible for us to say that their conclu­
sion in that respect was clearly arbitrary and unrea­
sonable. The most that can be said is that whether 
that determination was an unreasonable, arbitrary 
or unequal exercise of power is fairly debatable. 
In such circumstances, the settled rule of this court 
is that it ivill not substitute its judgment for that of 
the legislative body charged with the primary duty 
and responsibility of determining the question. 
Euclid; v. Ambler Realty Go., supra.”

III.

Distinction pointed out between the ordinance in the 
Buchanan 'v. Warley case and the ordinam.ee in the in­
stant case. The ordinance in the instant case shows on 
its face that it is plainly an attempt to preserve racial 
integrity in accordance with the declared public policy of 
Virginia, and said ordinance is plainly an attempt to pro­
hibit the amalgamation of the races. Under ivhich state­
ment we will discuss generally Assignment of Errors 
Nos. 2, 4, 5, 7, 11,15 and 16.

Before the Supreme Court of the United States be-



20

came unanimous in the Zahn v. Board of Public Works 
and Gorieb v. Fox  cases it reversed the case of Harmon 
v. Tyler, 158 La. 439, in a per curiam opinion in 71 Law 
Ed. 831, simply saying: “ Reversed on authority of. 
Buchanan v. W a r l e y The New Orleans ordinance in 
the Harmon v. Tyler case prohibited a “ white person”  
from, establishing a residence in a “ negro community’ * 
and vice versa, “ in the interest of public peace and wel­
fare” , being practically the same as the Louisville ordi­
nance.

So, having shown beyond doubt that the rule is now 
settled, as announced by the United States Supreme 
Court itself, that Councils can regulate the use of prop­
erty where regulation bears a rational relation to the 
the general welfare of the community, we now desire to 
direct attention to the distinction between the ordinance 
in the instant case and the ordinances in the Louisville 
and New Orleans eases! which distinction was also ex­
pressly recognized in the Buchanan v. Warley case itself.

The ordinance in the instant case presents an ex­
ercise of police power entirely different, and one of more 
vital importance, than was presented in the Louisville 
and New Orleans ordinances. The Louisville ordinance 
provided that it was unlawful for a “ colored person”  to 
occupy as a residence a house on a block where the ma­
jority were “ white people”  and vice versa, in order to 
prevent conflict and ill-feeling and preserve the public 
peace and promote the general welfare. The New Or­
leans ordinance was practically the same as above stated. 
Both basing their interdiction on color to preserve pub­
lic peace and the general welfare.

This distinction between the ordinance in the in­
stant case and the ordinances in the Louisville and New 
Orleans cases was observed by the United States Su­
preme Court in saying in the Buchanan v. Warley case: 
“ This interdiction is based wholly upon color, simply 
that, and nothing more” . Proponents of the ordinance 
argued such action was essential to the maintenance of



2L

the purity of the races, but the Court referred to the 
“ ordinance under cons; deration”  and pointed out that
the terms of the ordinance itself did not show such a pur­
pose, and the Court concluded:

' ‘ The case presented does not deal with an at­
tempt to prohibit the amalgamation of the races.”

The ordinance in the instant case bases its interdic­
tion on persons forbidden to intermarry, and not on 
color, and the United States Supreme Court expressly 
distinguished and recognized the right of communities to 
prohibit the amalgamation of the races, as is expressly 
attempted by the instant ordinance.

‘ ‘ Although miscegenation statutes have been 
persistently attacked on the ground that they are 
violative of the Umted States Constitution they have 
been universally upheld as a proper exercise of 
power of each state to control its own citizens.”  8 
R . C . L . .  p .  3 4 9 .

“ The term ‘miscegenation’ means a mixture of 
races. As a crime, miscegenation is an offense com­
mitted by the violation of a statute having as its ob­
ject the prevention of the mixture of the white race 
and another race named in the statute.”  40 C. J. 
1215.

The ordinance in the instant case has as its object 
the prevention of the mixture of races..

The Virginia racial integrity Act, of which the in­
stant ordinance is expressly in furtherance has never 
been questioned, and the ordinance in the instant case 
and said racial integrity Act, like all laws to preserve 
rac:al integrity, are based on races as such, so it cannot 
be said that the 14th Amendment prohibits laws based 
on races.

Laws forbidding intermarriage, which are to pre­
serve racial integrity were expressly approved and up-



22

held by the Uir'ted States Supreme Court in the ease of 
Plessy v. Ferguson, 41 Law Ed. 256, where the Court 
said:

“ Laws forbidding the intermarriage of the two 
races may be said in a technical sense to interfere 
with the freedom of contract, and yet have been 
universally recognised as ivithin the police power of 
the state.”

The provisions of the Virginia racial integrity Act 
(Record, p. 9), prevent any marriage from taking 
place at all, unless both applicants are of the Caucasian 
race or both applicants are of the non-Caucasian race, 
and it is made unlawful for any white person to marry 
any save a white person.

The instant ordinances adopts this classification, 
wlrch applies to the Caucasian and all other non-Cauca­
sian races, and so makes no discrimination against the 
Negro. The ordinance, in order to preserve the general 
welfare, peace, racial integrity, morals and social good 
order of the City of Richmond prohibits a Caucasian 
from using as a residence any building on any street, 
between intersecting streets, where the majority of resi­
dences on such street are occupied by non-'Caucasians, 
and likewise prohibits non-Ccmcasians. The instant or­
dinance fines or punishes alike any person, Caucasian 
or non-Caucasian, violating its provisions.

The ordinance in the instant case bases its inter­
diction on persons forbidden to intermarry from living 
in close proximity to one another to preserve the racial 
integrity and morals of the community. It is inconceiv­
able that a community which has been expressly granted 
the power by its state, cannot exercise this power over 
its own citizens for the preservation of its own civiliza­
tion, when the States, in adopting the 14th Amendment, 
reserved their own police power to prescribe regulations 
to preserve the general welfare, peace, morals, racial 
integrity and social good order of its own citizens.



23

IV.

The States, in adopting the 11th Amendment, did not 
intend to impose restraints upon the exercise of their 
powers for the protection of the general welfare, peace, 
racial integrity and social good order of their communi­
ties- Under which statement we will discuss generally 
Assignment of Errors Nos, 2, 8, 11, 12, 13, 14 and 16.

The Euclid, Zahn and Gorieh eases are now all in line 
with the Supreme Court’s decisions, that the state did not 
intend iby adopting the 14th Amendment to impose re­
straints upon their powers for the protection of the wel­
fare of the community and that neither that amendment, 
broad and comprehensive as it is, nor any other amend­
ment was designed to interfere with the power of the 
state, or its public agency, sometimes termed its police 
power, to prescribe regulations to promote the peace, 
morals, social good order and ricial integrity of its 
people.

“ It cannot be. supposed that the States in­
tended, by adopting that amendment (14th), to im­
pose restraints upon the exercise of their powers 
for the protection of the safety, health or morals 
of the community.”  Mugler v. Kansas, 123 U. S. 
623, 31 Law Ed. 205.

“ But neither the amendment (14th)—broad and 
comprehensive as it is—nor any other amendment 
was designed to interfere with the power of the 
State, sometimes termed its police power, to pre­
scribe regulations to promote the health, peace, mor­
als, education and good order of the people.”  Bar- 
hier v. Connolly, 113 IT. S. 27, 28 Law Ed. 923.

“ It (police power) is the most essential of pow­
ers, at times the most insistent and always one of the 
least limitable powers of government.”  District of 
Columbia v. Brooke, 214 IT. S. 138.



24

flIt may be said in a general way that the police 
power extends to all the great public needs. It may 
be put forth in aid of what is sanctioned by usage, 
or held by prevailing morality or strong and pre­
ponderating opinion, to be greatly and immediately 
necessary to the public w e l f a r e N o b l e  -Bank v. 
Haskell, 219 IT. S. 104.

/ ‘ The possession and enjoyment of all rights are 
subject to such reasonable conditions as may be 
deemed by the governing authority of the country 
essential to the safety, health, peace, good order 
and morals of the community. Even liberty itself, 
the greatest of all rights, is not unrestricted license 
to act according to one’s own will. It is freedom 
from restraint under conditions essential to the 
equal enjoyment of the same rights by others. It is 
then liberty regulated by law.”  Crowley v. Chris­
tensen, 137 U. 8. 86.

“ It is likewise thoroughly established in this 
court that the inhibitions of the Constitution of the 
United States upon the impairment of the obliga­
tion of contracts, or the deprivation of property 
without due process or of the equal protection of the 
laws by States, are not violated by the legitimate 
exercise of legislative power in securing the public 
salfety, health, and morals,. The governmental 
power of self-protection cannot be contracted away, 
nor can the exerc'se of rights granted, nor the use 
of property, be withdrawn from the implied liabil­
ity to governmental regulation in particulars essen­
tial to the preservation of the community from in­
jury.”  N. Y. <fr, N. E. Railroad Co. v. Bristol, 151 
U. S. 556, 567.

“ It is not the function of this court, under the 
authority of the 14th Amendment, to supervise the 
legislation of the states in the exerc’se of the police 
power beyond protecting against exertions of such 
authority in the enactment and enforcement of laws 
of an arbitrary character, having no reasonable re- 
lation to the execution of lawful purposes”  Jones 
v. Portland. 62 Law Ed. 252, 256.



An ordinance to preserve the racial integrity of the 
people of the City of Richmond is certainly an enactment 
on the part of the Council of the City of Richmond, for 
a lawful purpose, charged as the Council is with the 
primaiy duty and responsibility of determining the ques­
tion, and such enactments have been universally upheld. 
W e shall show later that the ordinance has a reasonable 
relation to this lawful purpose, at the same time remind­
ing' of the rule laid down in such cases by the Supreme 
Court of the United States in Zahn V. Board of Public 
Works case: ‘ ‘ The most that can be said is that whether 
that dcterm'nation was an unreasonable, arbitrary or 
unlawful exercise of power is fairly debatable. In such 
circumstances, the settled rule of this court is that it will 
not substitute its judgment for that of the legislative 
body charged with the primary duty and responsibility of 
determining the question.”

The ordinance is an exercise of police power by a 
public agency of the State of Virginia under express 
authority from the legislature of the State, in a statute 
reciting that the preservation of the public morals, etc , 
is endangered by the residence of white and colored 
people in close proximity to one another. The Supreme 
Court of Virgima in the Hopkins v. Richmond case, 
stated on page 713 of its opinion that it was the declared 
policy of the State of Virginia that close association of 
Hie races tends to immoral ty, etc,, which is interbreed­
ing. The ordinance is, therefore, enacted with refer­
ence to the declared policy of the State of Virginia. 
The ordinance is also in furtherance of the Virginia 
racial integrity Act, passed by the Legislature of Vir­
ginia to preserve the endangered racial integrity of the 
people of Virginia. And as was well said by the Su­
preme Court of the United States in the Gorieb v. Fox 
case, after referring to the great increase of population 
in urban communities and the vast changes in the ex­
tent and complexity of the problems of modern city life :

25



26

“ State legislatures and city councils, who deal 
With the situation from a practical standpoint, are 
better qualified than the courts to determine the 
necessity, character and degree of regulation, which 
these new and perplexing conditions require; and 
their conclusions should not he disturbed by the 
courts unless clearly arbitrary and unreasonable.”

The ordinance unquestionably is a proper exercise 
of the police power by a public agency of the State of 
Virginia affecting the privileges, and immunities of the 
citizens of the State to preserve the racial integrity of 
its people, in accordance with the declared policy of the 
State and in the suppression of the existing danger of 
interbreeding in the State, as shown by the enactment 
of the State Legislature, and not affecting the privileges 
and immunities of citizens of the United States.

V.

The classification to enforce separation of the races 
in places where they are liable to he brought into con­
tact, to preserve racial integrity, does not conflict with 
scud Amendment, and is not unreasonable or discrimin­
atory. Under which statement we will discuss gen­
erally Assignment of Errors Nos. 6, 7, 8, 10, 14 and 17.

As the free use of property is not now a right pro­
tected by the Constitution and is now a right which cam, 
be regulated by City Councils under the “ broader view” , 
where the regulation bears a rational relation to the 
general welfare, peace, morals, racial integrity and social 
good order of a community, nor is even debatable, under 
the settled rule of the Supreme Court in the Zahn, Go- 
rieb and Euclid cases. Does the classification to enforce 
separation of the races in places where they are liable 
to be brought into contact, conflict with the said Amend­
ment ?

We refer to the United States Supreme Court de­
cision in the case of Plessy v. Ferguson, 41 Law Ed. 256.



27

This case is still the authority for all existing- laws sepa­
rating the races, which have become the law of the land, 
and which have undoubtedly largely contributed to the 
amicable relations, peace and contentment of both races. 
These laws have operated most successfully to accom­
plish these purposes, and have proven their wisdom.

The Act under contention in that case was an Act 
of the Louisiana legislature which enforced separation 
of “ white and colored races”  on railway trains, 
required an assignment of each passenger to the 
coach used for the “ race’ ’ to which such passenger be­
longed, and provided that any passenger insisting on 
going into a coach to which by “ race”  he does not be­
long shall be liable to a fine of $25 00, etc. The inter­
diction or classification in this Act is mother legislative 
act based on race.

The constitutionality of the Louisiana Act was at­
tacked in the Plessy v. Ferguson case on the same ground 
as the instant ordinance is attacked. The Court in the 
Plessy v. Ferguson case said:

“ The constitutionality of this act is attacked 
upon the ground that it conflicts both with the 13th 
Amendment of the Constitution abolishing slavery, 
and the 14th Amendment, which prohibits certain 
restrictive legislation on the part of the States.”

The language of the decision in the case is so clear 
Ihat such an Act is neither discriminatory nor unrea­
sonable under the provisions of the 14th Amendment, 
that we cannot match its clarity and so quote from the 
decision as follows:

“ A statute which implies merely a legal dis­
tinction between the white and colored races—a dis­
tinction which is founded in the color of the two 
races, and which must always exist so long as white 
men are distinguished from the other race by color 
—has no tendency to destroy the legal equality of



28

“ We think the enforced separation of the races, 
as. applied to the internal commerce of the state, 
neither abridges the privileges or immunities of the 
colored man, deprives him of his property without 
due process of law, nor denies him the equal pro­
tection of the laws, within the meaning of the 14th 
Amendment.”

“ The object of the amendment was undoubtedly 
to enforce the absolute equality of the two races be­
fore the laic, but in the nature of things it could not 
have been intended to abolish distinctions based upon 
color, or to enforce social as distinguished from 
political equality, or a commingling of the two races 
upon terms unsatisfactory to either. Laws permit­
ting or even requiring their separation in places 
where they are liable to be brought into contact do 
not necessarily imply the inferiority of either race 
to the other, and have been generally, if not uni­
versally recognjsed as within the competency of the 
state legislatures in the exercise of their police 
power. The most common instance of this is con­
nected with the establishment of separate schools 
for white and colored children, which have been held 
to be a valid exercise of the legislative power even 
by courts of states where the political rights of the 
colored race have been longest and most earnestly 
enforced.”

“ So far, then, as a conflict with the 14th 
Amendment is concerned, the case reduces itself to 
the question whether the statute of Louisiana is- a 
reasonable regulation, and with respect to this there 
must necessarily be a large discretion on the part of 
the legislature. In determining the question of 
reasonableness it is at liberty to act, with reference 
to the established usages, customs, and traditions of 
the people, and with a view to the promotion of their 
comfort, and the preservation of the public peace 
and good order. Gauged by this standard, we can­
not say that a law which authorizes or even requires

the tivo races, or re-establish a state of involuntary
servitude. ’ ’



29

the separation of tlie two races in public convey­
ances is unreasonable or more obnoxious to the 
14th Amendment than the Acts of Congress requir­
ing separate schools for colored children in the Dis­
trict of Columbia, the constitutionality of which does 
not seem to have been questioned, or the correspond­
ing acts of state legislatures.

“ We consider the underlying fallacy of the 
plaintiff’s argument to consist in the assumption 
that the enforced separation of the two races stamps 
the colored race with a. badge of inferiority. If this 
be so, it is not by reason of anything found in the 
act, but solely because the colored race chooses to 
put that construction upon it.”

“ The argument also assumes that social pre­
judices may be overcome by legislation, and that 
equal rights cannot be secured to the negro except 
by an enforced commingling of the two races. We 
cannot accept this proposition. If the two races are 
to meet on terms of social equality, it must be the 
result of natural affinities, a mutual appreciation of 
each other’s merits and a voluntary consent of indi­
viduals. As wras said by the court of appeals of 
New York in People v. Gallagher, 93 N. Y. 448 (45 
Am. Bep. 232), ‘ this end can neither be accomplished 
nor promoted by laws which conflict with the gen­
eral sentiment of the community upon whom they 
are designed to operate. When the government, 
therefore, has secured to each of its citizens equal 
rights before the law and equal opportunities for 
improvement and progress, it has accomplished the 
end for which it is organized and performed all of 
the functions respecting social advantages with 
which it is endowed.’ Legislation is powerless to 
erad’cate racial instincts or to abolish distinctions 
based upon physical differences, and the attempt to 
do so can only result in accentuating• the difficulties 
of the present situation. If the civil and political 
rights of both races be equal one cannot be infer’ or 
to the other civilly or politically. If one race be in­
ferior to the other socially, the Constitution of the 
United States cannot put them upon the same 
plane.”



30

In the same friendly way the Supreme Court of Vir­
ginia in Hopkins V. Richmond, supra, upheld the validity 
of an earlier ordinance of Richmond separating the 
races in residential districts:

“ The theory on which such legislation is based 
cannot be better illustrated than by a liberal, literal 
quotation from the case of West 'Chester & P. Co. 
v. Miles, reported in 55 Pa, 209, 93 Am. Dec. 744, 
involving the legality of a separate law on public 
conveyances. ‘ To assert separateness is not to de­
clare inferiority in either race. It is not to declare 
one a slave and the other a freeman. That would 
be to draw the illogical sequence of inferiority from 
difference only. It is simply to say that, following 
the order of Divine Providence human authority 
ought not to compel these widely separated races to 
intermix. The right of each to be free from social 
contact is as clear as to be free from intermar­
riage. The former may be less repulsive as a condi­
tion, but not less entitled to protection as a right. 
When, therefore, ive declare a right to maintain 
separate relations as far as is reasonably practi­
cable, but in a spirit of kindness and charity, and 
with due regard to equality of rights, it is not pre­
judice or caste, but simply to suffer men to follow 
the law of races established by the Creator him­
self, and not to compel them to intermix contrary to 
their instincts’

Thus the Supreme Court of the United States has 
settled the rule that laws which enforce separation of 
races “  in places where they are liable to be brought into 
contact”  are neither discriminatory nor unreasonable, 
and have been generally, if not universally, recognized 
as within the competency of the state legislatures in 
the exercise of their police power. Residences in close 
proximity to each other are places of intimate and con­
stant contact.

The ordinance secures each race equal rights before 
the law and equal opportunities for improvement and



31

progress, and is certainly enacted “ with reference to the 
established usages, customs and traditions of the peo­
ple, and with a view to the promotion of their comfort, 
and the preservation of the public peace and good or­
der” .

The ordinance simply adopted the improved resi­
dential areas of each race as they existed at the time of 
the passage of the ordinance, and exactly as these areas 
had been previously adopted and voluntarily separated 
by each race,, without interference of law; leaving all 
the unimproved areas in the City open for the equal 
opportunities of each race. Nothing could be more equal.

In the improved areas, there is no limitation upon 
the capacity of either race to build up their own communi­
ties and develop community pride and independence, and 
so in both the improved and unimproved areas of the 
City, comprising its whole area, both races have equal 
opportunities for improvement and progress.

If one race be inferior to the other in the use it makes 
of its opportunities, the Constitution of the United States 
cannot put them upon the same plane.

The orcTnance secures equal rights to both races be­
fore the law. What is given one is given the other, what 
is denied one, is denied the other, and the same penalty 
for violation is prescribed alike for each race.

The State of Virginia has already enacted statutes 
separating the races on trains, waiting rooms, boats, 
electric cars, buses, and schools, and passed a statute au- 
thor'zing cities and towns to separate white and colored 
residential districts and passed a statute to preserve 
racial integrity. So certainly the ordinance was en­
acted with reference to established usages, customs and 
traditions of the people, and the public policy of the 
State as expressed in the above statutes. This state is 
fully committed to the principle of separation of the 
races, not as imposing stigma for none is thereby im­
posed, but in order that the solidarity of the races be pre­
served, and that in a spirit of racial friendship, each



32

race may attain those heights of human development 
which are its to be won.

It is submitted, therefore, that since under the set­
tled rule of the United States Supreme Court in the 
Euclid, Zahn and Gorieb cases, councils of cities can 
regulate the use of property, where regulation bears a 
rational relation to the general welfare of the com­
munity, even though the use does not constitute a com­
mon law nuisance, an ordinance enforcing the separation 
of the races does not stamp the colored race with a badge 
of inferiority because the colored race chooses to put 
that construction upon it.

“ We consider the underlying fallacy of the 
plaintiff’s argument to consist in the assumption 
that the enforced separation of the two races stamps 
the colored race with a badge of inferiority. If this 
be so, it is not by reason of anything found in the 
act, but solely because the colored race chooses to 
put that construction upon it.”  Plessy v. Ferguson, 
supra.

In the case of Gong Lum v. Rice, 72 Law Ed. 127, the 
Supreme Court of the United States, approved the de- 
cis’on of Plessy v. Ferguson, supra, in upholding laws re­
quiring the separation of the races in places where they 
are liable to be brought into contact, and on page 177 
said:

‘ ‘ The most common instance of this is connected 
with the establishment of separate schools for white 
and colored children, which has been held to be a 
valid exercise of legislative power even by courts 
of states where the polit’ cal rights of the colored 
race have been longest and most earnestly en­
forced.”

And, as before noted, miscegenation statutes, having 
as their object the prevention of the mixture of races, 
have universally been upheld as a proper exercise of the



33

power of each state to control its own citizens, and the 
ordinance in the instant case has as its objects the pre­
vention of the mixture of races.

The classification of races in all the instances cited 
is made under the usual guide that classification rests 
upon some ground of difference having a substantial re­
lation to the object of the legislation.

Before leaving the Plessy v. Ferguson case, we 
would call attention to the fact that in approving’ this de- 
c:sion in the Buchanan v. Warley case, the Supreme 
Court observed that “ there was no attempt to deprive 
persons of color of transportation” . That is, no consti­
tutional right was being denied in the Plessy v. Fergu­
son case, as was said to be denied in the Buchanan v. 
II alley case, then holding that free use of property was 
protected by the Constitution, unless the use constituted 
a common law nuisance, and one could not buy because 
one could'not have free use after buying. Since the de­
cisions in the Zahn, Goneb and Euclid cases now settle 
the lule that councils can regulate the use of property 
where the regulation bears a rational relation to the gen­
eral welfare, etc,, of the community, the free use of prop­
erty is not a constitutional right, and the right to buy 
houses, like the right to buy transportation being unaf­
fected, the right to buy houses, like the right to buy 
tickets, does not entitle one to use any house in a city, or 
any coach on a train, so it is confidently submitted that 
the principles decided in the Plessy v, Ferguson case 
govern the instant case.

VI.

The ordinance shows on its face that it is plainly 
an attempt to preserve racial integrity in accordance 
with the declared public policy of Virginia as expressed 
in said Act of 1924, the ordinance is plainly am attempt 
to prohibit the amalgamation of the races, and its regu­
lations bear a rational relation to the general welfare,



34

peace, racial integrity, morals and social good order of 
the City of Richmond. Under which statement we will 
discuss generally Assignment of Errors Nos. 2, 5, 7, 11, 
14, 15 and 16.

If the provisions of the ordinance bear a rational 
relation to the general welfare, peace, racial integrity, 
morals and social good order of the City, then it is a 
proper exercise of police power, and is a matter for the 
Council, and not for the courts.

We would here-call attention to the fact that South­
ern writers have proclaimed abroad to their people that 
regardless of the temporary phases of the race problem 
the real issue is that of race integrity, and that it is the 
duty of the South to take action not only to save itself 
from becoming negro"d, but also to stop the unending 
stream of negroids from the Southern broodland into the 
North and West.

The following are a few quotations from “ The New 
Family and Racial Improvement” , Issued by the Bureau 
of Vital Statistics Department of Health of Virginia, 
and written by W. A. Plecker, M. D., State Director of 
Vital Statistics:

“ Both remote and recent history of many na­
tions showTs that in none of them have white and 
colored races lived together without ultimate amal­
gamation, and without the final deterioration or com­
plete destruction of the white or higher civilization.”

“ We behold with awe the evidences which we 
now find in Egypt of the wonderful civilization of 
the past, when that country was white.”

“ The first three years of our experience with 
this new law reveals a degree of racial intermixture 
previously unknown, and shows that our State has 
already made a decided start in race amalgama­
tion.”

“ The only positive remedy for the situation is



35

that advocated by Lincoln and other far-seeing 
statesmen, the absolute separation of the races.”

“ Unless this can be done we have little to hope 
for, but may expect the future decline or complete 
destruction of our present civilization, as has already 
been brought about in Egypt, India, South Africa, 
South America and the portions of Southern Europe 
which have been supplying us with the larger part of 
our immigrants.”

“ Under the new act of Congress much of this 
immigration and that of Mongolians will be 
stopped.”

The following are a few quotations from “ The 
South’s Part in Mongrelizing the Nation” , by Earnest 
Sevier Cox:

“ There has not been a time in our history in 
which farseeing men of our race have not anxiously 
peered into the future, conscious of the fact that 
regardless of temporary phases of the Negro prob­
lem the real issue is that of race integrity.”

“ If the future American is negroid the South 
will have been mainly responsible for the destruc­
tion of the white race in the nation.”

“ The White South has proclaimed race ideals. 
What is needed is action to attain them. Additional 
proclamations of ideals unaccompanied by action to 
realize them will only draw anew the attention of the 
Northern whites to the futility of our words, for 
the Northern whites who witness an unending stream 
of mulattoes, from the Southern broodland, coming 
into their midst, will look to us for acts, not words, 
before they believe we are not to go the way of Latin 
America.”

“ The Negro problem is not a political problem 
and should not be considered as such. The Democrat 
who opposes separation, opposes Thomas Jefferson. 
The Republican who opposes separation, opposes 
Abraham Lincoln. The movement for the separa­
tion of the races should be a race movement sup-



m

“ What purpose will it serve to exclude the Ori­
ental if we are to become part African! And what 
wiH be the advantage of limiting the number of im­
migrants if our descendants are to be negroid!”

“  ‘ There is a physical difference between the 
white and black races which I believe will forever 
forbid the two races living together on terms of 
social and political equality.’ Abraham Lincoln.”

The truths of these statements are self-evident, and 
are generally known by legislative bodies in Virginia.

The phraseology of the ordinance itself shows that 
in the known existing circumstances in the City of Rich­
mond, the Council considered that the residences of 
persons forbidden to intermarry, in close proximity to 
one another in the City of Richmond endangered the gen­
eral welfare, peace, morals, racial integrity and social 
good order of the community, and that the Council passed 
the ordinance to prevent such close association, and to 
remedy the situation.

“ We must accord good faith to the city in the 
absence of a clear showing to the contrary and an
honest exercise of judgment upon the circumstances 
which induced its action.”  Hadacheck v. Sebastian, 
60 Law Ed. 394.

“ It is also well established that, when a state 
exerting its recognized authority, undertakes to sup­
press what it is free to regard as a public evil, it may 
adopt such measures having a reasonable relation 
to that end as it may deem necessary in order to 
make its act’’on effective.”

“ With the wisdom of the exercise of that judg­
ment the court has no concern; and unless it clearly 
appears that the enactment has no substantial rela­
tion to a proper purpose, it cannot be said that the

ported by the race-respecting members of both
races, not a party movement.”



37

limit of legislative power lias been transcended. To 
bold otherwise would be to substitute judicial opin­
ion of expediency for the will of the legislature—a 
notion foreign to our constitutional system.”  Purity 
Extract & T. Co. v. Lynch, 57 Law Ed. 184, 187.

“ The court certainly cannot say that the means 
here adopted are not, in any real or substantial 
sense, germane to the end sought to he attained by 
the statute. Those means may not be the best that 
could have been devised, but the court cannot for any 
such reason, declare them illegal or beyond the 
power of the state to establish.”  German Alliance 
Co. v. Hale, 55 Law Ed. 229, 235.

We would, therefore, suggest some reasons, as the 
Court did in the Euclid case, showing the rational rela­
tion of the provisions of the ordinance to preserve the 
racial integrity and morals of the City of Richmond for 
the general welfare of its people.

In this respect this ordinance is different from any 
ordinance ever before any court.

The ordinance on its face deals directly and funda­
mentally with an attempt to prohibit the amalgamation 
of the races. The separation itself is made on the basis 
of persons forbidden to intermarry under the Virginia 
“ racial integrity”  Act.

The Legislature of Virginia has expressly shown 
that it recognized that the racial integrity of Virginia 
was endangered, and its desire and intent to preserve 
the same by passing an Act entitled: “ An Act to pre­
serve racial integrity” . Acts 1924, page 534.

This Act has never been attacked as unconstitutional, 
and such an Act has been expressly held to be constitu­
tional as with'n the police power of the States, in the 
United States case of Plessy v. Ferguson. The ordi­
nance plainly shows that it is based on and in practical 
furtherance of said Act.

The Legislature of Virginia has solemnly declared 
that the residence of white and colored persons in close



38

proximity to one another endangered the public morals, 
public health and public order in cities and towns of the 
State.

Acts of Virginia 1912, page 330, and as amended in 
Acts of 1916, page 60, provide:

“ Whereas, the preservation of the public mor­
als, public health, and public order, in cities and 
towns of this commonwealth is endangered by the 
residence of white and colored people in close prox­
imity to one another.”

Public morals bear directly on racial integrity, and 
the legislature of Virginia has declared that these are 
endangered in cities of the State by the residence of 
white and colored races in close proximity to one another. 
The ordinance plainly undertakes to protect against this 
recognized danger.

The Supreme Court of Virgin a, familiar with local 
conditions and facts upon which Virginia ordinances are 
based, in the Hopkins v. Richmond case, supra, said on 
page 713 of its opinion:

“ It is the declared policy of this State that close 
association of the races tends to breach of peace, 
unsanitary conditions, discomfort, immorality and 
disquiet. Hence the legislature has seen fit to con­
fer express authority upon cities and towns of the 
Commonwealth to enact segregation ordinances. It 
has provided for separate coaches on the railroads 
of the State, and separation on the street cars, sepa­
rate waiting rooms at railroad stations, all because 
these things promote peace, good order, health and 
morality.”

The ordinance tends to promote racial purity and 
morality and to preserve racial integrity, under the lan­
guage of the highest court of Virginia.

How futile is an act to preserve racial integrity



39

when conditions are allowed to prevail that encourage its 
violation. It is well known that miscegenation (inter­
breeding) commonly happens outside of the marriage 
relation. It is cearly wiser and better to prohibit con­
ditions conducive to interbreeding than to try to deter 
by punishment. The ordinance, in this respect, is of 
more practical benefit than the Act.

The colored race may have a great future, but it 
will never reach its ultimate goal unless it remains a 
pure race. The same is true of the white race.

The history of nations shows that, where white and 
colored races live in close proximity to one another, 
amalgamation ultimately takes place, to the final de­
terioration or complete destruction of the -white or higher 
civilization.

Close association between white and colored races 
induces undue familiarity, blunting the fine sense of 
distinction between races, and tends to bring about a 
gradual amalgamation, which means disaster to both, and 
is contrary to the laws of the races.

For the best interests of both, the line must be 
drawn somewhere.

Separation of the white and colored races upon the 
surface of the glpbe is an apparent fact-—so distributed 
in providential arrangement.

Under the congested conditions of modern munici­
pal life, there is as much, if not a greater degree of as­
sociation among the adolescent children of white and 
colored races when living side by side than there would 
be in mixed schools under direct observation of teach­
ers. And separation of the races in schools is approved 
by the Supreme Court in the Plessy v. Ferguson and 
Gong Lum v. Bice cases, and even in the Buchanan v. 
Warley case.

Residential districts or communities are set up by 
I lie ordinance for each race, and of course it would be 
impossible to prevent uses of residences in nearby adja­
cent streets by either of the other race, where both are



4 0

to live in the city, unless such nearby residences were 
prohibited from use by both races, which would necessi­
tate divesting of vested rights. The ordinance is pros­
pective in its operation and will prevent further occur­
rence of the conditions prohibited. Existing conditions 
are not and could not be changed unless vested rights 
were divested. The ordinance prohibits such residences 
in close proximity to one another as far as it legally can, 
and in the same way that white and colored races are 
prohibited from occupying the same coaches on trains, 
and not prohibiting the occupancy by either of adjacent 
coaches.

Second, we would suggest some reasons showing the 
rational relation of the provisions of the ordinance to 
preserve the social good order and peace of the City of 
Richmond for the general welfare of its people, which 
are relevant to the best interests of both the white and 
colored races.

Members of the white race who desire to reside 
among the colored race are usually a bad element and 
their presence is an injury to the other race; among such 
members of the white race are immoral women and boot­
leggers.

It is evident that the colored race must ultimately 
rise through their own efforts and that of their more 
enlightened leaders. For those leaders who are doing 
their duty separation will simplify the problem, and if 
other leaders, in days of good fortune, abandon the less 
fortunate and be false to duties laid on them by virtue 
of their own success, separation will indirectly force ac­
ceptance of responsibdty and coerce performance and in 
the end will accomplish an enlightened civic spirit.

It cannot be said that the best way for a member of 
the colored race to improve his condition is to move into 
a street where the majority are of the white race. To 
say this is to ascribe to members of the colored race, a 
lack of capacity for self-improvement, and entire de­



41

pendence upon the white race, which no self-respecting 
member of the colored race would admit. To move may 
be the easy way, but it is hard on the white race, and 
would never develop the capacities of the colored race 
to build up their own communities or develop community 
pride and independence.

“ The blighting of property values and the con­
gesting o.f population, whenever the colored or cer­
tain foreign races invade a residential section, are 
so well known as to be within judicial notice.”  Am­
bler Realty Co. v. Village of Euclid, 297 Fed., page 
313.

As was well said in the Plessy v. Ferguson case, if 
(he “ two races”  are to meet on terms of social equal­
ity, it must be the result of a mutual appreciation of 
each other’s merits and a voluntary consent of indi­
viduals. Certainly this can never be accomplished by 
forcing one on another.

The ordinance shows on its face that the Council 
considered that the cordial relations, the social good or­
der, of the two races in the City of Richmond were en­
dangered by the forcing of one race on the other, and if 
this last and most important forced commingling were 
stopped, that cordial relations would be restored, and 
that the opportunity would be given for a mutual ap­
preciation of each other’s merits, and for the volun­
tary consent of individuals to associate on friendly 
terms.

The ordinance is thus fundamentally sound, phy- 
schologically correct and friendly constructive for the 
best interests of both races, even though the colored 
race does not agree with the Supreme Court of the 
United States in saying in the Plessy v. Ferguson case 
that it could not accept the proposition “ that social 
prejudice may be overcome by legislation and that equal 
rights cannot be secured to the negro except by an en­
forced eommigling of the two races” .



42

In regard to the preservation of peace, it is evident 
that the continued process of the colored race moving 
into residential districts of the white race with its con­
tinued “ blighting of property values”  is bound to 
reach a point of reaction, resulting in open breaches of 
peace to put a stop to the movement. It is surely wiser 
and better to remove the cause and promote better feel­
ing than to have to try to deter breaches of the peace by 
punishment of the same.

VII.

CONCLUSION.

In such circumstances, the language of the U. S. 
Supreme Court in the Euclid v. Ambler case is applica­
ble and control! ng, said the Court:

“ If the municipal Council, deemed any of the 
reasons which have been suggested, or any other sub­
stantial reason, a sufficient reason for adopting the 
ordinance in question, it is not the province of the 
courts to take issue with the council.”

“ If the reasons thus summarized do not demon­
strate the wisdom or sound policy in all respects of 
those restrictions which we have indicated as perti- 
ent to the inquiry, at least the reasons are suffi­
ciently cogent to preclude us from saying, as it must 
be said before, the ordinance can be declared uncon- 
stitutional, that such provisions are clearly arbi­
trary and unreasonable, having no substantial rela­
tion to the public health, safety, morals, or general 
welfare.”

likewise the language of the United States Supreme 
Court in the Gorieb v. Fox case, said the court:

“ Since upon consideration we are unable to 
say that the ordinance under review is ‘ clearly ar­



43

bitrary and unreasonable, having no substantial re­
lation to the public health, safety, morals or gen­
eral welfare’ we are bound to sustain it as constitu­
tional.”

_ Upon consideration it is impossible to say that the 
ordinance under review has no substantial relation to 
the general welfare, peace, racial integrity, morals and 
social good order of the City of Richmond, and so it is 
bound to be sustained as constitutional by the United 
States Supreme Court, under its own decisions.

The Euclid, Zahn and Gorieb decisions were ren­
dered in cases regnlating the use of property by councils 
lor the general welfare, etc., of the community, as is 
done in the instant case, and, therefore, these decisions 
aie now the settled rule of the United States Supreme 
Court, the final arbiter of such questions, and so have 
become the law of the land or “ due process of law” , 
and these decisions are conclusive of the constitution­
ality of the instant ordinance.

Certainly-the laiv governing the instant case is now 
perfectly clear.

In conclusion, it seems appropriate to quote from 
the decision of thd Supreme Court in the Civil Rights 
cases, 109 U. S. 3, decided in 1883. In this case, the 
Court will remember, Congress enacted a Bill entitling 
all persons to full and equal enjoyment of inns, public 
conveyances, theatres and other places of amusement 
subject only to conditions established by law applicable 
alike to citizens of every race and color. The United 
States Supreme Court, in holding this Bill unconstitu­
tional, said on page 25 of its opinion:

“ When a man has emerged from slavery, and by 
the aid of beneficient legislation has shaken’ off the 
inseparable concomitants of that state, there must 
be some stage in the progress of his elevation when 
lie takes the rank of a mere citizen, and ceases to



44

be the special favorite of the laws, and when his 
rights as a citizen, or a man, are to be protected by 
the ordinary modes by which other men’s rights are 
protected.”

We respectfully submit that the said decree of the 
United States District Court for the Eastern District of 
Virginia, dated May 22, 1929, in the above entitled cause, 
should be reversed, and the cause remanded with direc­
tions to dismiss the bill of complaint.

JAMES E.. CANNON, 
LUCIUS F. CARY,

Counsel for Appellant.



BRIEF FOR APPELLEE

IN THE

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 2900

THE CITY OF RICHMOND, A MUNICIPAL 
CORPORATION, ET AL, Appellants,

versus

J. B. DEANS, Appellee.

Appeal from the District Court of the United States 
for the Eastern District of Virginia,

Sitting at Richmond.

Alfred E. Cohen, 
Joseph R. Pollard,

Counsel for Appellee.





IN  T H E

United States Circuit Court of Appeals
FOURTH CIRCUIT

No. 2900

THE CITY OF RICHMOND, A MUNICIPAL 
CORPORATION, ET AL, Appellants,

versus

J. B. DEANS, Appellee.

Brief for Appellee.

STATEMENT OF CASE.

May it please your Honors:

This is an appeal from a decree of the District Court 
of the United States for the Eastern District of Virginia, 
sitting at Richmond, Virginia, entered and filed May 22, 
1929, enjoining and restraining the City of Richmond, its 
servants, agents and attorneys from enforcing against the



4

appellee here, through criminal proceedings or otherwise, 
the fines and penalties of the ordinance of the City of 
Richmond, Virginia, approved February 15, 1929, entitled 
an ordinance

“To prohibit any person from using as a residence 
any building on any street between intersecting streets, 
where the majority of residences on such street are 
occupied by those with whom said person is forbidden 
to intermarry by section 5 of an act of the General 
Assembly of Virginia, entitled ‘An Act to preserve 
racial integrity,’ approved March 20, 1924, and pro­
viding that existing rights shall not be affected.”

The appellee, a colored man, filed his bill of complaint 
in the court below against the City of Richmond, Virginia, 
and certain of its officers, praying that they be enjoined 
and restrained from enforcing against him the enormous 
fines and penalties prescribed for a violation of said ordi­
nance, so as to enable him, freed from a criminal prosecu­
tion, to occupy as his residence, a house purchased by him, 
on a street in which a majority of residences were then 
occupied by white persons.

The appellants have not denied, by answer or otherwise, 
the allegations of the bill, but moved in the court below to 
dismiss the bill, assigning some twenty-three or more rea­
sons for the same, in attempting to convince the court that 
the ordinance in question was ordained in the proper exer­
cise of the police power of the State.

The court below, in its decree (Record, p. 23), denied 
appellants’ motion to dismiss the bill, and enjoined the en­
forcement of the ordinance,

“ for the reason that the ordinance of the City of 
Richmond, App. February 15, 1929, is in violation



5

THE CASE ARGUED
The Ordinance contravenes Clause 1 of the Fourteenth 

Amendment to the Constitution of the United States, as 
well as the Civil Rights Acts of Congress, in classifying 
the white and colored races in their right of use of a 
residence.

The appellants, in their assignment of errors, num­
bered “3, 11 and 12” (Record, p. 24) argue that:

“ 3. The use of property is not a property right 
protected by said 14th Amendment.”

“ 11. Because the State, in adopting the said 
14th Amendment, did not intend to impose restraints 
upon the exercise of their powers for the protection 
of the general welfare, peace, racial integrity and so­
cial good order of their communities. * * *”

“ 12. Because the said ordinance is a proper 
exercise of the police power by a public agency of 
the State of Virginia, affecting the privileges and im­
munities of the citizens of the State, and not affect­
ing the privileges and immunities of citizens of the 
United States.”

That is not so, because the 14th Amendment made the 
negro a citizen of the United States, as well as of the 
State in which he was born or naturalized.

“If it be a privilege of a citizen of the United 
States to move freely within the whole country, the

of the provisions of the 14th Amendment of the
Constitution of the U. S.”



6

power of the State to control the migration and 
settlement of its own people must logically be de­
nied, for the whole country includes the State.” 
Freund on Police Power, Section 491.

And whether the right to the location of a residence is 
such a fundamental right of property which the citizen 
did not delegate to the State, or whether derived from the 
express, or enjoyed under the implied limitations of the 
State Constitution, the Fourteenth Amendment operates to 
deny to the States the power to destroy such right, under 
the guise of legislation professing to accord to the citizen 
the “equal protection of the laws,” when it has taken away 
the very right such legislation purports to protect.

“The police power is not above the Constitution, 
State or Federal, and must be exercised in subordina­
tion thereto as far as it imposes restraints.” Lacey 
v. Palmer, 93 Va. 159.

“The police power * * * necessarily has its limits 
and must stop when it encounters the prohibitions of 
the Constitution.” Eubank v. City of Richmond, 226 
U. S. 137.

The 14th Amendment guarantees to the citizen as an 
individual, freedom from discrimination, by inhibiting the 
several States from passing legislation depriving “any 
PERSON of life, liberty or property without due process 
of law, or to denying to any person within its jurisdiction, 
the equal protection of the laws,” and has no concern 
with the merits or demerits of a race to which the citizen 
belongs in protecting the rights of the individual. Neither 
the white nor colored races as such derive from the State 
the right to own, possess and use property. Therefore,



7

there is no power residing in the State to district it, so 
as to control the settlement of its inhabitants, in black 
or white belts.

The appellants in their 8th Assignment of Errors
say:

“8. * * * An ordinance enforcing separation of the 
races, as applied to the police power simply regu­
lating the use of property by its citizens, neither 
abridges the privileges, or immunities of the colored 
man, nor denies him the equal protection of the laws 
within the 14th Amendment.” (Italics ours.)

It is not a privilege to use property as a residence 
in a residential district, it is a fundamental right, and 
the citizen has the right to be immune from the abridge­
ment of such right of property.

“ Property is more than the mere thing which a 
person owns * * * it includes the right to use and 
dispose of it.” Buchanan v. Warley, 245 U. S., pp. 
60-73. (Italics supplied.)

APPELLANTS’ 8TH ASSIGNMENT OF ERROR.
ZONING REGULATIONS.

The appellants rely upon the case of Euclid V. Ambler 
Realty Co., 272 U. S., p. 365. That case set at rest di­
vergent views as to the power of the State to zone prop­
erty for business and industrial purposes, and is wholly 
inapplicable here. That case is predicated upon the theory 
that restrictions as to the use of property if reasonable, 
and have a substantial relation to the public welfare, may 
be made in the exercise of the police power. It, however, 
does not go to the extent of the ordinance here, which de-



8

p r iv e s  th e  o w n e r  h im s e l f ,  o f  th e  u se  in  p e r s o n  o f  h is  re s i­
d e n c e . T h e  c a s e  o n ly  r e s t r i c t s  h im  b y  h im s e l f ,  o r  b y  
o t h e r s , m a k in g  c e r t a in  u s e  o f  h is  p r o p e r t y ,  c o n s t it u t in g  
per se a  n u is a n c e  in  la w . T h e  t h e o r y  o f  th a t  c a s e  is 
b a s e d  u p o n  th e  m a x im  sic utere tuo, ut non alienum laedas. 
T o  m a k e  t h a t  c a s e  a p p lic a b le , a  c o u r t  o f  la w  w o u ld  h a v e  to  
f in d  th a t  a m a n ’ s c o lo r  o r  c o m p le x io n  in  a n d  b y  i t s e l f ,  in 
it s  r e la t io n  t o  th e  c o lo r  o r  c o m p le x io n  o f  o t h e r  m e n  m a d e  
h im  a  n u is a n c e  in  la w .

I f  th e  z o n in g  s ta t u t e  o r  o r d in a n c e  p la c e s  a n  u n r e a s o n ­
a b le  r e s t r i c t io n  u p o n  th e  u se  o f  p r o p e r t y ,  it  w i l l  b e  d e­
c la r e d  v o id ,  a s  a  d e p r iv a t io n  o f  p r o p e r t y  w i t h o u t  d u e  p r o ­
c e s s  o f  la w  w it h in  th e  b a n  o f  th e  F o u r t e e n t h  A m e n d m e n t .

W h e r e  th e  q u e s t io n  f o r  d e c is io n  w a s  th e  r e s t r ic t io n  
o f  th e  u se  o f  la n d  f o r  in d u s t r ia l  a n d  r e s id e n t ia l  p u r p o s e s , 
th e  S u p r e m e  C o u r t  o f  th e  U n it e d  S ta te s  r e v ie w e d  the 
c a s e s  o f  Euclid v . Ambler Realty Co., supra, a n d  Zahn V. 
Board of Public Works, 2 7 4  U . S ., r e l ie d  u p o n  b y  the 
a p p e lla n t s  a n d  s a id , p a g e  1 8 7 :

“ T h e  g o v e r n m e n t a l  p o w e r  t o  in t e r f e r e  b y  z o n in g  
r e g u la t io n s  w it h  th e  g e n e r a l  r ig h t s  o f  th e  la n d o w n e r  
b y  r e s t r i c t in g  th e  c h a r a c t e r  o f  h is  u se , is not unlimited, 
a n d  o t h e r  q u e s t io n s  a s id e , s u c h  r e s t r i c t io n  c a n n o t  be 
im p o s e d , i f  it  d o e s  n o t  b e a r  a substantial relation to 
th e  p u b l ic  h e a lth , s a fe t y ,  m o r a ls  o r  g e n e r a l  w e l fa r e .”  
Nectow V. Cambridge, 2 7 7  U . S ., p p . 1 8 3 -1 8 7 .

V ie w e d  in  th e  l ig h t  o f  z o n in g  r e g u la t io n s  in  f o r c e  
p u r s u a n t  t o  t h e  s ta t u t e  la w  o f  th e  S ta te  o f  V ir g in ia ,  R ic h ­
m o n d ’s  z o n in g  o r d in a n c e  r e a d  in  c o n n e c t io n  w it h  th e  o r d i ­
n a n c e  in  q u e s t io n , d e b a r s  th e  a p p e lle e  o f  th e  u se  o f  h is  
o w n  r e s id e n c e ,  w h ic h  is  in  a  z o n e d  r e s id e n t ia l  d is t r ic t ,  
b e c a u s e  o f  h is  c o lo r  a lo n e , a n d , t h e r e fo r e ,  is  a  to t a l  re -



9

s t r a in t  o f  h is  r ig h t  b y  h im s e l f  to  u se  h is  r e s id e n c e  a s  a  
r e s id e n c e . H e  c a n n o t  m a k e  u se  o f  i t  f o r  in d u s t r ia l  p u r ­
p o se s . H e  m u s t  fin d  a  w h it e  m a n  w h o  c a n  u s e  it  a s  a  
r e s id e n c e , a n d  i f  h e  c a n n o t  fin d  s u c h  m a n , h is  h o u s e  m u s t  
r e m a in  v a c a n t  a n d  it s  v a lu e  d e s t r o y e d .

“ A  la w  f o r  th e  to t a l  r e s t r a in t  o f  o n e ’ s  r ig h t  w i l l  
b e  v o id ,  a s  i f  a  m a n  b e  d e b a r r e d  t h e  u se  o f  h is  la n d .”  
R. Sav., p . 7 4 .

T I T L E  8 , S E C T I O N  4 2 , U . S . C . C I V I L  R I G H T S  A C T S .

“ A l l  c i t iz e n s  o f  th e  U n ite d  S ta te s  s h a ll h a v e  th e  
s a m e  r ig h t ,  in  e v e r y  S ta te  a n d  T e r r i t o r y  a s  is  e n ­
jo y e d  b y  w h it e  c it iz e n s  t h e r e o f  t o  in h e r it ,  p u r c h a s e , 
le a se , s e ll , hold a n d  c o n v e y  r e a l  a n d  p e r s o n a l p r o p ­
e r t y .”  Title 8 , Sec. 4 2 , U. S. C. ( Annotated) ,  p . 5 0 . 
( I t a l i c s  o u r s . )

W h ile  th e  C iv il  R ig h t s  A c t s  o f  C o n g r e s s  w e r e  e n ­
a cte d  p u r s u a n t  to  th e  a u t h o r it y  o f  th e  X I I I  A m e n d m e n t  
to  th e  U n ite d  S ta te s  C o n s t itu t io n , s u c h  a c ts  a r e  a p p lic a b le  
to  th e  X I V  A m e n d m e n t  to  s a id  C o n s t itu t io n .

T h e  w o r d  “ H O L D ”  is  v e r y  fu l l y  d e fin e d , in  C o r p u s  
J u r is , a n d  m e a n s  “ T O  O C C U P Y .”  2 9  C . J „  p. 7 5 8 .

“ C o n g r e s s  h a s  th e  p o w e r  * * * t o  p r o t e c t  c it iz e n s  
o f  th e  U n it e d  S ta te s  in  th e  e n jo y m e n t  o f  th o s e  r ig h t s  
w h ic h  a r e  fundamental a n d  b e lo n g  t o  e v e r y  c it iz e n , i f  
th e  d e p r iv a t io n  o f  s u c h  r ig h t s  is  s o le ly  b e c a u s e  o f  
R A C E  a n d  C O L O R .”  U. S. V. Morris, 12 5  F e d . 3 2 2 . 
( I t a l i c s  o u r s . )



10

T h e  C o u r t  in  U. S. V. Morris, supra, q u o te d  t h e  C iv il 
R ig h t s  A c t s  o f  C o n g r e s s  a s  t h e  b a s is  f o r  i t s  d e c is io n .

“ T h e  c o u r t s  a r e  n o t  b o u n d  b y  m e r e  f o r m  n o r  
a r e  t h e y  to  b e  m is le d  b y  m e r e  p r e t e n s e s ; t h e y  a r e  a t 
l i b e r t y ,  i n d e e d  a r e  u n d e r  t h e  s o le m n  d u t y  t o  lo o k  
a t  th e  substance o f  t h in g s , w h e n e v e r  t h e y  e n t e r  u p on  
t h e  in q u ir y  w h e t h e r  t h e  l e g i s la t u r e  h a s  t r a n s c e n d e d  
t h e  l im it s  o f  a u t h o r i t y .  I f ,  t h e r e f o r e ,  a  s t a t u t e  p u r ­
p o r t i n g  t o  h a v e  b e e n  e n a c t e d  t o  p r o t e c t  t h e  p u b l ic  
h e a l t h ,  t h e  p u b l i c  m o r a l s  o r  p u b l i c  s a f e t y ,  h a s  n o 
r e a l  o r  substantial relation t o  t h o s e  o b je c t s ,  or is  a 
p a l p a b l e  in v a s io n  o f  t h e  r ig h t s  s e c u r e d  b y  f u n d a ­
m e n t a l  la w ,  i t  is  t h e  d u t y  o f  t h e  c o u r t s  t o  s o  a d ju d g e  
a n d  t h e r e b y  g iv e  e f f e c t  t o  t h e  c o n s t i t u t io n .”  ( I t a l i c s  
s u p p l ie d .)  Mugler V. Kansas, 12 3  U . S . 6 2 3 .

I t  c a n n o t  b e  r e a s o n a b l y  h e ld  t h a t  t h e  o r d in a n c e  h e r e  
h a s  a  S U B S T A N T I A L  r e la t io n  t o  racial purity w h e n  it 
r e c o g n iz e s  th e  status quo o n  m ix e d  b lo c k s , p e r m it s  s e r v a n ts  
t o  l i v e  in  f a m i l i e s  o n  t h e  p r e m is e s  ( C o d e  o f  V ir g in ia  
1 9 1 9 ,  S e c .  3 0 5 1 ) ,  t h e  o t h e r  r a c e  o n  t h e  b l o c k  b u t  o n e  
r e m o v e d ,  a n d  t h e i r  p l a c e s  o f  p u b l i c  a s s e m b ly ,  h a l l s  o f  
a l l  k in d s ,  s c h o o l s  a n d  c h u r c h e s  in  t h e  s a m e  s q u a r e .  A n d  
e v e n  t h o u g h  it  p r o h i b i t e d  t h e s e  la t t e r  a s  d id  t h e  e a r l ie r  
r a c ia l  s e g r e g a t io n  o r d in a n c e s ,  i t s  r e la t io n  to  r a c ia l  in te g ­
r i t y ,  th a t  is , p r e s e r v in g  th e  in t e g r i t y  o f  th e  r a c e s , b y  
p r e v e n t in g  c r o s s - b r e e d i n g ,  is  f a r  f r o m  b e in g  s u b s ta n t ia l .

E v e r y  a r g u m e n t  a s  t o  t h e  t e n d e n c y  o f  L o u i s v i l l e ’ s, 
R i c h m o n d ’ s, B a l t i m o r e ’ s, W in s t o n - S a l e m ’ s a n d  o th e r  
s e g r e g a t io n  o r d in a n c e s  o f  c i t ie s , t o  p r o m o t e  racial purity 
t h a t  p o s s ib l y  c o u l d  b e  m a d e ,  w a s  m a d e  in  b r i e f s  o f  c o u n ­
s e l  in  c a s e s  in  w h i c h  s u c h  o r d in a n c e s  w e r e  a t t a c k e d  as 
u n c o n s t i t u t i o n a l .  L ik e w is e  i t  w a s  p o in t e d  o u t  in  th o s e  
c a s e s , th a t  th e  use alone a n d  n o t  t h e  jus disponendi o f



11

p r o p e r t y  w a s  i n v o lv e d .  W e  n e e d  t o  l o o k  n o  f u r t h e r  f o r  
th is  th a n  t h e  c a s e  o f  Buchanan v . Warley, 2 4 5  U . S ., p . 
60 , t h e  b r i e f s  o f  c o u n s e l ,  t h e  r e c o r d  in  t h a t  c a s e  in  t h e  
S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  a n d  t h e  b r i e f s  f i l e d  
amicus curiae.

Counsel for the City of Richmond Have No New and Sub­
stantial Argument to Present to Sustain the Present 
Ordinance.

S a id  t h e  la t e  H o n .  H . R . P o l l a r d  (C i t y  A t t o r n e y  f o r  
R ic h m o n d ) ,  in  h is  b r i e f  amicus curiae, in  Buchanan V. 
Warley, supra, s p e a k in g  o f  “ J im  C r o w ”  la w s :

“ I f  t h e r e  is  d a n g e r  o f  c o n f l i c t  a n d  p e r il  t o  th e  
p r e s e r v a t io n  o f  th e  purity of the race * * * h o w  
m u c h  g r e a t e r  m u s t  b e  t h is  s a m e  d a n g e r  w h e r e  t h e  
r e la t io n  is  f ix e d  a n d  p e r m a n e n t , a n  u n in t e r r u p t e d  
o n e , o f  immediate neighbors on the same block.” 
( I t a l i c s  s u p p l ie d .)  Amicus Curiae, b r i e f  o f  H o n .

H . R . P o l la r d , p a g e  17 .

S a id  S . S . F ie ld , C it y  A t t o r n e y  o f  B a lt im o r e , in  

the sa m e  c a s e :

“ I t  is  a t t e m p te d  b y  th e  B a lt im o r e  o r d in a n c e , ‘ t o  
prevent cross-breeding between the races’.”  ( I t a l i c s  
s u p p l ie d .)  Amicus Curiae, b r i e f  o f  S . S . F ie ld , p . 17.

B lo d g e t t  &  L e h m a n , in  th e  s a m e  c a s e , s a id :

“ T h e  o r d in a n c e  l im it s  o n ly  the right of use * * * 
o f  p r o p e r t y .  ( I t a l i c s  s u p p l ie d .)  Amicus Curiae, b r i e f  

B lo d g e t t  &  L e h m a n , p a g e  18.



12

T h e s e  p o s it io n s  a n d  s im i la r  o n e s  m a d e  in  a r g u m e n t  
le d  J u s t ic e  D a y  in  Buchanan V. Warley, supra, on p age 
73, to a n s w e r  t h e m  in  p a r t  a s  f o l l o w s :

“ T h is  d r a s t i c  m e a s u r e  is  s o u g h t  t o  b e  ju s t if ie d
* * * a s  i t  tends to maintain racial purity.

“Property is more than the mere thing which a 
person owns. It is elementary that it includes the 
right to acquire, USE and dispose of it.”  ( I ta lic s  
s u p p l ie d .)

I n  Buchanan v . Warley, supra, p . 7 3 , th e  C o u r t ,  in  its 
u n a n im o u s  o p in io n  f r o w n e d  u p o n  th e  c o n t e n t io n  t h a t  the 
L o u is v i l le  o r d in a n c e  p r o m o t e d  r a c ia l  in t e g r i t y .  I t  w en t 
o n  to  s a y :

“ S u c h  a c t io n  is  s a id  to  b e  e s s e n t ia l  t o  the main­
tenance of RACIAL PURITY, a l t h o u g h  it  is  t o  b e  noted  
in  t h e  o r d in a n c e  u n d e r  c o n s id e r a t i o n  t h a t  t h e  e m ­
p lo y m e n t  o f  c o l o r e d  s e r v a n t s  in  w h i t e  f a m i l i e s  is 
p e r m i t t e d ,  a n d  n e a r b y  r e s id e n c e s  o f  c o l o r e d  p e r ­
s o n s , n o t  c o m i n g  w i t h in  t h e  b l o c k ,  a r e  n o t  p r o ­
h i b i t e d . ”  ( I t a l i c s  s u p p l i e d . )

T h e n  t h a t  c o u r t  in  a  u n a n im o u s  o p in io n  c o n c lu d e s  
th a t  t h e  s e g r e g a t io n  o f  th e  r a c e s  in  t h e ir  r e s id e n c e s  has 
nothing to do with preventing the amalgamation of the 
races in  th e  f o l l o w i n g  la n g u a g e :

“ T h e  c a s e  p r e s e n t e d  d o e s  n o t  d e a l  w i t h  a n  a t ­
t e m p t  t o  p r o h i b i t  t h e  a m a l g a m a t io n  o f  t h e  r a c e s . ”  
Buchanan v . Warley, 2 4 5  U . S . 6 0 , 7 3 -7 4 .



13

C r o s s -b r e e d in g  is  p r e v e n t e d  b y  la w s  p u n is h in g  in ­
t e r m a r r ia g e ,  a n d  n o t  b y  s e p a r a t e  c o a c h  la w s ,  s e p a r a t e  
s c h o o ls  o r  r e s id e n t ia l  d is t r ic t s .

T h e  c o u r t  in  t h a t  c a s e  w a s  a id e d  in  r e a c h in g  s u c h  
c o n c lu s io n  f r o m  th e  b r i e f s  o f  c o u n s e l  Amicus Curiae, c i t ­
in g  t h e  s t a t u t e  l a w  o f  S t a t e s  w h o s e  c i t y  r a c i a l  s e g r e g a t i o n  
o r d in a n c e s  w e r e  i n v o lv e d ,  s h o w i n g  t h a t  s u c h  S ta te s  h a d  
la w s  p u n is h in g  m is c e g e n a t io n  a s  a  c r im e . I n  s o m e  S ta te s  
in t e r m a r r ia g e  b e t w e e n  a  w h i t e  p e r s o n  a n d  a  m o n g o l i a n  
w a s  n o t  o n ly  p r o h ib i t e d ,  b u t  th e  m a r r ia g e  w a s  r e n d e r e d  
v o id , a n d  t h e  p a r t i c ip a n t s  p u n is h e d .

Amicus Curiae, b r i e f  o f  M r . C h ilto n  A t k in s o n , p . 9, 
filed  in  Buchanan v . Warley, swpra.

T h e  f o r m e r  R i c h m o n d  o r d in a n c e  a n d  L o u i s v i l l e ’ s 
o r d in a n c e  s e g r e g a t i n g  t h e  r a c e s  in  t h e i r  r e s id e n c e s  h a d  
m o r e  s u b s t a n t ia l  r e la t i o n  t o  r a c ia l  in t e g r i t y  a n d  t h e ir  
t e n d e n c y  w a s  g r e a t e r  t o w a r d s  r a c i a l  p u r i t y ,  in  t h a t  u n l ik e  
th e  o r d in a n c e  o f  R i c h m o n d  in  q u e s t io n ,  t h e y  p r o h ib i t e d  
d a n c in g  a n d  a l l  m a n n e r  o f  h a l l s ,  s c h o o l s  a n d  p la c e s  o f  
p u b lic  a s s e m b ly , a s  w e l l  a s  r e s id e n c e  o f  th e  r a c e s  in  th e  
sa m e  b l o c k .  H e r e  t h e  o r d in a n c e  o n l y  p r o h ib i t s  p e r s o n s  
w h o  c a n n o t  in t e r m a r r y  f r o m  m o v i n g  in t o  a n d  l i v in g  in  
th e  s a m e  b l o c k  in  r e s id e n c e s  o c c u p i e d  in  t h e  m a j o r i t y  
b y  th e  w h i t e  o r  n e g r o  r a c e , a s  th e  c a s e  m a y  b e . I t  d o e s  
n ot p r o h ib i t  p la c e s  o f  p u b l ic  a s s e m b ly , s u c h  a s  d a n c e  h a lls , 
s c h o o ls  a n d  c h u r c h e s  in  a  d e lim ite d  b lo c k .

I t  is  p r o v i d e d  in  S e c .  4 5 4 6 , M i c h i e ’ s C o d e  o f  V i r ­
g in ia , 1 9 2 4 , a s  f o l l o w s :

“ I f  a n y  w h i t e  p e r s o n  in t e r m a r r y  w i t h  a  c o l o r e d  
p e r s o n ,  o r  a n y  c o l o r e d  p e r s o n  in t e r m a r r y  w i t h  a  
w h i t e  p e r s o n ,  h e  s h a l l  b e  c o n f in e d  in  t h e  p e n i t e n t ia r y  
n o t  le s s  t h a n  t w o  n o r  m o r e  t h a n  f iv e  y e a r s . ”

In  t w e n t y -n in e  S t a t e s  t h e r e  a r e  s im i la r  la w s .  1 3  
Va. Law Register (N .  S . ) ,  p . 3 1 1 -3 1 4 , 3 1 5 .



14

T H E  N E G R O  R A C E  A S  A  R A C E  IS  D I S C R I M I N A T E D
A G A I N S T

U n d e r  th e  o r d in a n c e  o f  R ic h m o n d  a n d  th e  r a c ia l  in ­
t e g r i t y  a c t  u p o n  w h ic h  it  is  b a s e d , a s  w e l l  a s  u n d e r  a ll o f  
t h e  s t a t u t e s  o f  V i r g i n i a ,  a  w h i t e  p e r s o n  a s  w e l l  a s  a  n e g r o  
m a y  in t e r m a r r y  w i t h  a  C h in a m a n , a  M a la y a n  a n d  an  
A s ia t i c  I n d ia n ,  a s  t h e r e  is  n o  p e n a l t y  to  b e  b o r n e  f o r  s u c h . 
A  w h i t e  p e r s o n  a n d  a  n e g r o  c a n n o t  m a r r y  w i t h o u t  p e n ­
a l t y .  T h e r e f o r e ,  t h e r e  is  n o  p r o h ib i t i o n  in  t h e  o r d in a n c e  
in  q u e s t io n ,  o r  in  t h e  la w s  o f  V i r g in ia ,  p r o h ib i t in g  a 
M a la y ,  M o n g o l ,  A s ia t i c  I n d ia n ,  & c . ,  f r o m  n o w  t a k in g  u p  
h is  r e s id e n c e  in  a  d e l i m i t e d  w h i t e  b l o c k ,  a l t h o u g h  b y  
t h e  t e r m s  o f  t h e  o r d in a n c e ,  a  n e g r o  c a n n o t  d o  s o , b e c a u s e  
h e  c a n n o t  in t e r m a r r y  w i t h  a  w h i t e  p e r s o n .

“ A  la w  w i t h  n o  p e n a l t y  o r  b u r d e n  o f  a n y  so r t  
t o  b e  b o r n e  f o r  it s  v i o l a t i o n ,  is  n o  la w .  L a w  a n d  
p u n is h m e n t  m u s t  g o  t o g e t h e r ,  a n d  n e i t h e r  c a n  e x is t  
w i t h o u t  t h e  o t h e r .”  Bishop on Statutory Crimes, S ec. 
2 1 , p . 1 6 ;  1 Dillon Mun. Corp., S e c s . 2 7 0 -2 7 2 ;  State 
v . Cleveland, 3  R . I . 11 7 .

V i r g i n i a ’ s  r a c i a l  in t e g r i t y  a c t  in  s e c t i o n  5 in v o k e s  
t h e  s t a t u t e s  r e g a r d i n g  in t e r m a r r ia g e  a s  f o l l o w s :

“ A l l  la w s  h e r e t o f o r e  p a s s e d  a n d  n o w  in  e f f e c t  
r e g a r d in g  th e  intermarriage of white and colored 
persons s h a ll  a p p ly  t o  m a r r ia g e s  p r o h ib i t e d  b y  th is  
a c t . ”

I t  d o e s  n o t  i n v o k e  la w s  p r o h ib i t in g  in t e r m a r r ia g e  
w i t h  o t h e r  r a c e s .  T h e r e  a r e  n o  s u c h  la w s  in  V ir g in ia .

N o n e  o f  t h e  r a c e s ,  s a v e  t h e  n e g r o  is  a  c o l o r e d  p e r ­
s o n . A  c o l o r e d  p e r s o n  is  d e f i n e d  a s :



15

“ E v e r y  p e r s o n  h a v in g  o n e - s ix t e e n t h ,  o r  m o r e ,  
o f  n e g r o  b l o o d  s h a l l  b e  d e e m e d  a  c o l o r e d  p e r s o n  
* * * ”  Code Va., 1 9 1 9 , S e c . 67.

I t  is  t r u e  th e  r a c ia l  in t e g r i t y  a c t  s a y s  it  is  U N L A W ­
F U L  f o r  a  w h it e  p e r s o n  to  m a r r y  a n y  o t h e r  th a n  a  C a u ­
c a s ia n , a n d  o n e  w it h  a  c e r t a in  p e r c e n t a g e  o f  I n d ia n  b lo o d , 
b u t ' th a t  is  m e r e ly  in terrorem, a s  n o  p e n a lty  is  t o  b e  
b o r n e  i f  th e  in h ib i t io n  is  v io la te d .

“ T h e  t e r m  ‘n e g r o ’ is  id e n t i c a l  w i t h  t h e  t e r m  
‘c o lo r e d  p e r s o n ’ .”  Jones V. Commonwealth, 8 0  V a . 
5 3 8 .

I t  is  t h u s  s e e n  t h a t  t h e  o r d in a n c e  is  a im e d  s o l e l y  
a t  t h e  n e g r o  a n d  d is c r im in a t e s  a g a in s t  h im , b e c a u s e  o f  
h is  r a c e  in  t h e  u s e  o f  h is  p r o p e r t y  a s  a  r e s id e n c e .

T h e  o r d in a n c e  h a s  f o r  its  o b j e c t  t h e  s e t t in g  a p a r t  
o f  s e p a r a t e  r e s id e n t ia l  squares b a s e d  s o le ly  o n  c o lo r , 
f o r  t h e  w h i t e  a n d  n e g r o  r a c e s ,  s o  t h a t  a s  t h e  a p p e l la n t s  
a r g u e , “ t h e r e  w i l l  b e  separate residential districts f o r  
t h e  w h i t e  a n d  c o l o r e d  r a c e  in  R ic h m o n d  in  a r e a s  n o w  
u sed  b y  e a c h  r a c e  f o r  s u c h  p u r p o s e s .”

T h a t  i t  h a s  b e e n  h e ld  c a n n o t  b e  d o n e  b y  la w . Yick 
Wo v . Hopkins, 1 1 8  U . S . 35 6 .

T h e  v i c e  o f  t h e  o r d in a n c e  h e r e  is  t h a t  i t  is  b a s e d  
o n  c o l o r  a n d  r a c e .

“ T h e  in d iv i d u a l  c h a r a c t e r i s t i c s  o f  t h e  o w n e r  d o  
n o t  f u r n is h  a  b a s is  o n  w h i c h  t o  m a k e  a  c la s s i f i c a ­
t i o n .”  Quong Wing v . Kirkendall, 2 2 3  U . S . 64 .

“ T h e  f a c t  t h a t  a  m a n  is  w h i t e ,  o r  b l a c k ,  o r  y e l ­
l o w ,  is  n o t  a  ju s t  a n d  c o n s t i t u t io n a l  g r o u n d  f o r  m a k ­
in g  c e r t a in  c o n d u c t  a  c r im e  in  h im , w h e n  it  is  t r e a t e d



16

a s  p e r m is s ib le  a n d  in n o c e n t  in  a  p e r s o n  o f  a  d i f f e r e n t
c o l o r . ”  Opinion of Justices, 2 0 7  M a s s . 6 0 1 , 6 0 5 .

A p p e l l a n t s  u r g e  t h a t  t h e  o r d i n a n c e  o n l y  a f f e c t s  th e  
use o f  p r o p e r t y ;  th a t  it  is  lik e  a  z o n in g  o r d in a n c e ,  z o n in g  
r e s id e n t i a l  p r o p e r t y  f o r  t h e  w h i t e  a n d  n e g r o  r a c e ,  a n d  
t h a t  i t  is  p e r m is s ib le  t o  d o  t h a t  t o  p r e s e r v e  t h e  r a c ia l  
in t e g r i t y  o f  b o t h  r a c e s .

I n  th e  c a s e  o f  Tyler V. Harmon, 1 5 8  L a ., p . 4 3 9  
( w h i c h  o n  a p p e a l  t o  t h e  S u p r e m e  C o u r t  o f  t h e  U n i t e d  
S ta te s  w a s  r e v e r s e d , a n d  in  w h ic h  th e  r a c ia l  s e g r e g a t io n  
r e s id e n t i a l  o r d in a n c e  o f  t h e  C it y  o f  N e w  O r le a n s  o f  1 9 2 4  
w a s  in v o l v e d ) ,  th e  S u p r e m e  C o u r t  o f  L o u is ia n a  lik e n e d  
t h e  o r d i n a n c e  p r o v i d i n g  s e p a r a t e  r e s id e n t ia l  b l o c k s  f o r  
t h e  w h i t e  a n d  c o l o r e d  r a c e s  t o  t h a t  o f  a  z o n i n g  o r d in a n c e  
o f  in d u s t r ia l  a n d  r e s id e n t i a l  p r o p e r t y  a n d  h e ld  t h e  o r d i ­
n a n c e  v a l id .

T h a t  c o u r t  in  it s  o p in io n  m is c o n s t r u e d  th e  c a s e  o f  
Buchanan v . Warley, supra ( l ik e  th e  a p p e lla n t s  h e r e ) ,  
a n d  in  r e v i e w i n g  t h a t  c a s e ,  s a id  t h a t  a  p r o p e r t y  r ig h t ,  
a lo n e  w a s  in v o lv e d  a n d  n o t  th e  r e s t r i c t io n  o f  th e  use o f  
p r o p e r t y  f o r  r e s id e n t i a l  p u r p o s e s  b y  t h e  w h i t e  a n d  
c o l o r e d  r a c e s .

I t  s e e m s  t o  u s  t h a t  i f  t h e  S u p r e m e  C o u r t  o f  L o u is ia n a  
b e f o r e  d e c id in g  t h e  c a s e  o f  Tyler v . Harman, supra, h a d  
r e a d  th e  o p in io n  o f  th e  c o u r t  in  c o n n e c t io n  w i t h  th e  
r e c o r d  o f  Buchanan v . Warley, supra, it  w o u ld  h a v e  
le a r n e d  t h a t  W i l l i a m  W a r l e y  e n t e r e d  in t o  a  c o n t r a c t  w ith  
C . H . B u c h a n a n  o n  O c t .  3 1 , 1 9 1 4 ,  t o  p u r c h a s e  f r o m  th e  
la t t e r  a  l o t  in  t h e  C it y  o f  L o u i s v i l l e ,  K y . ,  w i t h  t h e  e x p r e s s  
u n d e r s t a n d i n g  t h a t  i f  W a r l e y  h a d  n o  r ig h t  u n d e r  th e  
r a c ia l  r e s id e n t i a l  s e g r e g a t i o n  o r d in a n c e  o f  t h e  C it y  o f  
L o u i s v i l l e  a n d  t h e  la w s  o f  t h e  S t a t e  o f  K e n t u c k y  t o  e r e c t  
t h e r e o n  a  h o u s e  a n d  use i t  a s  h is  r e s id e n c e  in  a  d e lim ite d



17

b l o c k ,  h e  w o u l d  n o t  b e  c o m p e l l e d  t o  c o m p l y  o n  h is  p a r t  
w ith  th e  c o n t r a c t .

T h a t  c o n t r a c t  is  f o u n d  o n  page 2 o f  th e  T r a n s c r ip t  
o f  R e c o r d  in  th e  S u p r e m e  C o u r t  o f  th e  U n it e d  S ta te s , 
Oct. Term, 1916. No. 231—Charles H. Buchanan, Plain­
tiff in error V. William Warley.

I n  e r r o r  t o  th e  C o u r t  o f  A p p e a ls  o f  t h e  S ta te  o f  
K e n tu c k y . Filed August 30, 1915. (24, 897.)

W a r l e y  r e f u s e d  t o  p a y  f o r  t h e  l o t ,  b e c a u s e  h e  c o u ld  
n o t  l iv e  in  a n d  o c c u p y  a  h o u s e  o n  th e  lo t , a s  th e  r a c ia l  
r e s id e n t ia l  s e g r e g a t i o n  o r d in a n c e  o f  t h e  C it y  o f  L o u i s ­
v i l le  p r o h i b i t e d  i t  in  t e r m s , a n d ,  t h e r e u p o n ,  B u c h a n a n ,  
f i le d  h is  s u it  a g a in s t  W a r l e y  in  t h e  K e n t u c k y  c o u r t ,  to  
c o m p e l s p e c i f ic  e x e c u t io n  o f  th e  c o n t r a c t ,  a n d  W a r le y  

a n s w e r e d  t h a t  b y  v ir t u e  o f

“ A n  o r d in a n c e  o f  t h e  C it y  o f  L o u i s v i l le ,  a p ­
p r o v e d  M a y  1 1 , 1 9 1 4 , a n d  e n t i t le d

“ A n  o r d in a n c e  t o  p r e v e n t  c o n f l i c t  a n d  i l l - f e e l i n g  
b e t w e e n  t h e  w h i t e  a n d  c o l o r e d  r a c e s  in  t h e  C it y  o f  
L o u i s v i l l e ,  a n d  t o  p r e s e r v e  t h e  p u b l i c  p e a c e  a n d  
p r o m o t e  t h e  g e n e r a l  w e l f a r e  b y  m a k in g  r e a s o n a b le  
p r o v is i o n s  r e q u ir in g  a s  f a r  a s  p r a c t ic a b le ,  th e  use o f  
s e p a r a t e  b l o c k s  f o r  r e s id e n c e s ,  p l a c e s  o f  a b o d e  a n d  
p la c e s  o f  a s s e m b ly  b y  w h it e  a n d  c o lo r e d  p e o p le , 
r e s p e c t i v e ly .

“ I t  w a s  d e c l a r e d  t o  b e  u n l a w f u l  f o r  a n y  c o l o r e d  
p e r s o n  to move into and occupy as a residence a n y  
h o u s e  u p o n  a n y  b l o c k  in  t h e  C it y  o f  L o u i s v i l l e  u p o n  
w h i c h  a  g r e a t e r  n u m b e r  o f  h o u s e s  a r e  o c c u p i e d  as 
r e s id e n c e s  b y  c o l o r e d  p e o p l e . ”  ( I t a l i c s  s u p p l i e d . )

T h e  d e f e a s a n c e  c la u s e  in  s a id  c o n t r a c t  r e a d s  a s  
f o l l o w s :



18

“ I t  is  u n d e r s t o o d  t h a t  I  a m  p u r c h a s i n g  t h e  
a b o v e  p r o p e r t y  f o r  t h e  p u r p o s e  o f  h a v in g  e r e c t e d  
t h e r e o n  a  h o u s e  w h i c h  I  p r o p o s e  t o  m a k e  m y  r e s i ­
d e n c e ,  a n d  it  is  a  d is t in c t  p a r t  o f  t h is  a g r e e m e n t  t h a t  
I s h a l l  n o t  b e  r e q u i r e d  t o  a c c e p t  a  d e e d  to  t h e  a b o v e  
p r o p e r t y ,  o r  t o  p a y  f o r  th e  s a id  p r o p e r t y ,  u n le s s  I 
have th e  r ig h t  u n d e r  th e  la w s  o f  th e  S ta te  o f  K e n ­
t u c k y  a n d  th e  C it y  o f  L o u is v i l le ,  to occupy said prop­
erty as a residence.”  ( I t a l i c s  o u r s . )  Buchanan v . 
Warley, record No. 24-897, page 2.

T h e r e  is  a  v a s t  d i f f e r e n c e  b e t w e e n  a n  o r d in a n c e  
w h i c h  p r o h ib i t s  a n  o f f e n s i v e  u s e  o f  p r o p e r t y ,  w i t h in  c e r ­
ta in  p r e s c r ib e d  l im it s , b y  all th e  p e o p le  o f  a ll th e  r a c e s , 
a n d  a  p r o h ib i t i o n  o f  u s e  o f  p r o p e r t y ,  w i t h in  c e r t a in  
p r e s c r ib e d  l im it s , b y  some o f  th e  p e o p le  o f  s o m e  o f  th e  
r a c e s  b a s e d  o n  c o l o r .

T h e  X I V  A m e n d m e n t  d o e s  n o t  im p a ir  t h e  p o l i c e  
p o w e r ,  b u t  i t  d o e s  a f f o r d  p r o t e c t i o n  a g a in s t  arbitrary r e g ­
u la t io n s  w h ic h  a r e  t a n t a m o u n t  to  t h e  d e s t r u c t io n  o r  c o n ­
f is c a t io n  o f  p r iv a t e  p r o p e r t y .  S e e  Hibben v . Smith, 19 1  U .
S . 3 1 0 .

I n  V i r g in ia ,  a u t h o r i t y  is  e x p r e s s ly  d e l e g a t e d  t o  th e  
c i t i e s  a n d  t o w n s ,  b y  t h e  V i r g i n i a  L e g is la t u r e ,  a s  a p p e l ­
la n ts  in  t h e ir  b r i e f  m e n t io n , t o  m a k e  s e g r e g a t io n  d is t r ic t s  
in  t h e  la n g u a g e  f o l l o w i n g :

“ A n y  c i t y  o r  t o w n  m a y ,  b y  a  r e c o r d e d  v o t e  o f  
a  m a j o r i t y  o f  t h e  m e m b e r s  e l e c t e d  t o  t h e  c o u n c i l  
t h e r e o f ,  a d o p t  a n  o r d in a n c e  d iv i d i n g  s u c h  c i t y  o r  
t o w n  in t o  d is t r ic t s ,  t h e  b o u n d a r i e s  w h e r e o f  s h a l l  b e  
plainly designated in such ordinance, a n d  w h ic h  sh a ll 
b e  k n o w n  a s  s e g r e g a t io n  d is t r i c t s .”  ( I t a l i c s  o u r s .)  
Michie’s Code of Virginia, 1924, Secs. 3042 to 3053, 
inclusive, and note to section 3043 in Code of Virginia,



19

1919, b y  th e  R e v is o r s  o f  th e  C o d e , in  w h ic h  t h e y  s a y  
th e  a b o v e  s e c t io n s  m u s t  b e  r e a d  in  c o n n e c t io n  w it h  th e  

c a s e  o f  Buchanan V. Warley, supra, w h ic h  s e c t io n s  t h e y  
in c o r p o r a t e d  in  th e  C o d e  o f  1 9 1 9  b e f o r e  th e  d e c is io n  
in  Buchanan V. Warley, supra, w a s  a n n o u n c e d .

B u t  it  w i l l  b e  n o t e d  t h a t  th e  o r d in a n c e  in  q u e s t io n  
fa i ls  t o  d e s ig n a t e  th e  b o u n d a r ie s  o f  th e  d is t r ic t s  in  
th e  o r d in a n c e ^ , w h ic h  s h a ll  b e  k n o w n  a s  s e g r e g a t io n  d is ­
t r i c t s ,  a n d , t h e r e fo r e ,  l ik e  u n d e r  th e  L o u is v i l le  o r d in a n c e , 
th e  n u m e r ic a l  p r e p o n d e r a n c e  o f  th e  w h it e  r a c e  in  R ic h ­
m o n d , is  r e l ie d  u p o n  to  c a r v e  r e s id e n t ia l  d is t r ic t s  f o r  th e  
n e g r o  r a c e , a n d  th u s  b y  s u c h  o p e r a t io n  o f  th e  o r d in a n c e , 
d e p r iv in g  th e  n e g r o  o f  h is  p r o p e r t y  w it h o u t  d u e  p r o c e s s  o f  
la w  a n d  d e n y in g  t o  th e  n e g r o  r a c e  th e  e q u a l p r o t e c t io n  o f  
th e  la w s  in  lo c a t in g  a  r e s id e n c e .

I n  a p p e l la n t s ’ s e v e n th  a s s ig n m e n t  o f  e r r o r s ,  t h e y  s a y  
th e  o r d in a n c e  w a s  e n a c te d  w it h  r e fe r e n c e  to  th e  “ d e c la r e d  
p o l i c y  o f  th e  S ta te  o f  V ir g in ia ,  a s  e x p r e s s e d  in  a n  A c t  o f  
th e  L e g is la t u r e  ( A c t s  1 9 1 2 , p . 6 0 ) , ”  w h ic h  la t t e r  a c t  is  
in c o r p o r a t e d  in t o  Sections 304-2 to 3053, in c lu s iv e , o f  
Michie’s Code 1924 and the Code of Virginia of 1919, Sec­
tions 3042 to 3053, inclusive.

T h e  a p p e lla n t s  r e ly  u p o n  th e  a c t  o f  th e  V ir g in ia  L e g is ­
la t u r e  t o  p r e s e r v e  r a c ia l  in t e g r i t y  ( A c t s  1 9 2 4 , p . 5 3 4 ) ,  
e n t it le d  “ A n  a c t  t o  p r e s e r v e  r a c ia l  in t e g r i t y ”  in  t h e ir  sev­
enth assignment of errors, a s  a u t h o r it y  t o  e n a c t  th e  o r ­
d in a n c e  in  q u e s t io n . T h e  s a id  a c t  w a s  e x h ib it e d  in  it s  
e n t ir e t y  w i t h  th e  b il l  a s  a n  e x h ib it  (R e c o r d ,  p . 4 ) ,  a n d  b y  
s t ip u la t io n  o f  c o u n s e l  w a s  t o  c o n s t it u t e  a  p a r t  o f  t h e  r e c o r d , 
a s  a n  e x h ib i t  w it h  th e  b il l  (R e c o r d ,  p . 2 8 ) .  I t  is , h o w ­
e v e r , t h o u g h  n o t  c o p ie d  in  th e  r e c o r d  m a d e  a  p a r t  o f  th e  
r e c o r d  o f  t h is  c a u s e  b y  r e f e r e n c e  t h e r e t o  in  t h e  b i l l  a n d  in  
a p p e lla n t s ’  s e v e n th  a s s ig n m e n t  o f  e r r o r s .  T h e r e  is  n o t h ­



20

in g  in  s a id  r a c ia l  in t e g r i t y  a c t  e m p o w e r in g  th e  C it y  o f  
R ic h m o n d  to  e n a c t  th e  o r d in a n c e  in  q u e s t io n  e x p r e s s ly  o r  
b y  n e c e s s a r y  im p lic a t io n . T h a t  a c t  r e q u ir e d  c e r t a in  f o r m s  
to  b e  p r e p a r e d  b y  th e  S ta te  R e g i s t r a r  o f  V i t a l  S ta t is t ic s , 
a n d  a u t h o r iz e s  lo c a l  r e g is t r a r s  t o  is s u e  r e g is t r a t io n  c e r t i f i ­
c a te s  a s  t o  th e  r a c e  o f  p e r s o n  r e g is t e r in g ,  s o  a s  t o  h a v e  a  
r e c o r d  o f  th e  c o lo r  o r  r a c ia l  c o m p o s i t io n  o f  a  m a n  a n d  
w o m a n  a p p ly in g  f o r  a  m a r r ia g e  lic e n s e , w i t h  t h e  S ta te  o r  
lo c a l  r e g is t r a r  o f  v i t a l  s t a t is t i c s . T h e n  section 5 o f  s a id  
r a c ia l  in t e g r i t y  a c t  m a k e s  it  u n la w fu l  f o r  a n y  w h i t e  p e r ­
s o n  to  m a r r y  a n y  s a v e  a  w h it e  p e r s o n .

I t  is  c o n c e d e d  t h a t  a  S t a t e  h a s  p o w e r  t o  e s t a b l is h  
b u r e a u s  o f  v i t a l  s t a t is t i c s  a n d  t o  p r o h i b i t  in t e r m a r r ia g e  
b e t w e e n  a  w h i t e  p e r s o n  a n d  a  n e g r o  o r  r a c e  o t h e r  th a n  
C a u c a s ia n , b e c a u s e  th e  F e d e r a l  C o n s t it u t io n  p la c e s  n o  
l im it a t io n  o n  th e  S ta te s  a s  t o  t h o s e  m a t t e r s .  S e e  L e a d in g  
A r t i c l e — Inter-marriages with Negroes, 1 3  V a . L a w  R e g i s ­
t e r  (N .  S . ) ,  p . 3 1 1 .

B u t  b y  v ir t u e  o f  s u c h  e n a c t m e n t s  t h e r e  is  n o  w a r r a n t  
f o r  o r d a in in g  a  r a c ia l  s e g r e g a t io n  o r d in a n c e .

T h e  S u p r e m e  C o u r t  o f  th e  U n it e d  S ta te s , in  p a s s in g  
u p o n  th e  N e w  O r le a n s  s e g r e g a t io n  o r d in a n c e  o f  1 9 2 4 , o n  
a p p e a l  t o  th a t  t r ib u n a l  b y  B e n  H a r m o n  f r o m  th e  d e c is io n  
o f  th e  L o u is ia n a  S u p r e m e  C o u r t  in  f a v o r  o f  J o s . W . T y le r  
(1 5 8  L a . 4 3 9 ) ,  a n d  r e v e r s in g  t h a t  C o u r t ,  s im p ly  w r o t e  a 
m e m o r a n d u m  o p in io n  as  f o l l o w s :

“ N o . 3 5 3 . Benj. or Ben Harmon V. Jos. W. Tyler, 
e r r o r  t o  t h e  S u p r e m e  C o u r t  o f  L o u is ia n a . A r g u e d  
M a r c h  8 , 1 9 2 7 . D e c id e d  M a r c h  14 , 1 9 2 7 . Per curiam: 
R e v e r s e d  o n  a u t h o r i t y  o f  Buchanan V. Warley, 2 4 5  U .
S . 6 0 .”  Harmon V. Tyler, 2 7 3  U . S . 6 6 8 .

T h e  N e w  O r le a n s  o r d in a n c e ,  th e  L o u is v i l le  o r d in a n c e , 
th e  f o r m e r  R ic h m o n d  o r d in a n c e ,  a n d  t h o s e  o f  o t h e r  S o u th -



2 1

e r a  S ta te s , a s  w e l l  a s  th e  p r e s e n t  o n e , a r e  b a s e d  u p o n  th e  
t h e o r y  th a t  th e  in d iv id u a l m a y  b e  c la s s if ie d  a s  t o  h is  c o lo r  
in  th e  u se  o f  p r o p e r t y ,  a n d  a ll w e r e , a n d  a r e  in  th e  in ­
s ta n c e  c a s e , a v o w e d  t o  b e  e n a c te d  to  p r e s e r v e  r a c ia l  p u r it y ,  
in  t h e  e x e r c is e  o f  th e  p o l i c e  p o w e r .

T h e  N e w  O r le a n s  o r d in a n c e  o f  1 9 2 4  a ls o  c a m e  b e f o r e  
th e  U n it e d  S ta te s  D is t r i c t  C o u r t  in  a  s u it  t o  e n jo in  i t s  e n ­
fo r c e m e n t ,  a n d  th e  c o u r t  h e ld  b r ie f ly :

1. Lis pendens o f  Tyler v . Harmon, L o u is ia n a  
S u p r e m e  C o u r t .

2 . C o r p o r a t io n  w a s  n o t  a  n e g r o .

T h e r e u p o n  th e  b il l  w a s  d is m is s e d .

Land Development Co., Ltd. v . City of New Or­
leans, 13  F e d . 2 d , p a g e  8 9 8 .

T h e  C o r p o r a t io n  a p p e a le d  th e  la s t  c it e d  c a s e  to  th e  
U . S . C ir c u it  C o u r t  o f  A p p e a ls ,  a n d  i t  w a s  r e v e r s e d  b y  
m e m o , a s  f o l l o w s :

“Per curiam. O n  a u t h o r i t y  o f  Buchanan V. War- 
ley a n d  Harmon v . Tyler, 4 7  S . C . R . 4 7 1 , 71  L . E d . 
(O c t o b e r ,  1 9 2 6 , T e r m ) ,  r e v e r s e d  a n d  r e m a n d e d  f o r  

fu r t h e r  p r o c e e d in g s .”  Land Development Co., Ltd. v . 
City of New Orleans, 17  F e d . 2 d , p . 1 016 .

In  th e  f o l l o w in g  c a s e s  b e f o r e  th e  S u p r e m e  C o u r t  o f  
th e  U n ite d  S ta te s , th e  c a s e  o f  Buchanan v . Warley, 2 4 5  U .
S . 6 0 , w a s  b r o u g h t  to  th e  a t t e n t io n  o f  th e  C o u r t  a n d  r e ­
v ie w e d  w i t h o u t  c r it ic is m .

Corrigan v . Buckley, 2 7 1  U . S . 2 3 2 , a  r a c ia l  c o v e n a n t  
c a s e ;



2 2

Nixon V. Herndon, 2 7 3  U . S . 5 3 6 , a T e x a s  p r im a r y  
e le c t io n  c a s e .

B u t  in  th e  c a s e s  o f  Euclid V. Ambler Realty Co., 2 7 2  
U . S ., 3 6 5 ;  Zahn v . Board of Public Works, 2 7 4  U . S . 3 2 5 , 
a n d  Nectow V. City of Cambridge, et al, 2 7 7  U . S ., p . 183 , 
in v o lv in g  z o n in g  o r d in a n c e s  n o  m e n t io n  is  m a d e  o f  th e  
c a s e  o f  Buchanan V. Warley, supra, th u s  in d ic a t in g  th a t  
th e  la s t  t h r e e  c a s e s  h a v e  n o  r e la t io n  t o  a  r a c ia l  q u e s t io n .

I n  th e  c a s e  o f  Irvine v . City of Clifton Forge, 1 2 4  V a . 
7 8 1 , th e  S u p r e m e  C o u r t  o f  A p p e a ls  o f  V ir g in ia ,  h e ld  th e  
d e c is io n  o f  th e  S u p r e m e  C o u r t  o f  th e  U n ite d  S ta te s  in  th e  
c a s e  o f  Buchanan V. Warley, supra, a s  d e c is iv e  o f  th e  u n ­
c o n s t i t u t io n a l i t y  o f  C l i f t o n  F o r g e ’ s r a c ia l  r e s id e n t ia l  s e g r e ­
g a t i o n  o r d in a n c e ,  w h ic h  o r d in a n c e  w a s  “ s u b s t a n t ia l ly  th e  
s a m e  a s  th a t  o f  L o u is v i l le ,  K y . ,  a n d  th e  r a c ia l  s e g r e g a t io n  
o r d in a n c e  o f  1 9 1 4  o f  R ic h m o n d , V i r g i n i a . ”

T h e  S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  w a s  d i f ­
f e r e n t l y  c o m p o s e d  a s  t o  p e r s o n n e l  in  p a r t ,  w h e n  i t  d e ­
c id e d  th e  c a s e s  o f  Buchanan v . Warley, supra, in  1 9 1 7 , a n d  
Harmon v . Tyler, swpra, in  1 9 2 7 .

H e r e t o f o r e ,  t h e  c o u r t s  o f  la s t  r e s o r t  in  t h e  S ta te s  
o f  V ir g in ia ,  N o r t h  C a r o l in a  a n d  G e o r g ia ,  d e c la r e d  s im ila r  
c i t y  o r d in a n c e s  u n c o n s t i t u t io n a l :

Irvine V. Clifton Forge, supra;
State v . Darnell, 1 6 6  N . C . 3 0 0 ;
Carey V. Atlanta, 14 3  G a . 192 .

T h e  d e c l a r a t i o n  in  t h e  o r d in a n c e  in  q u e s t io n  th a t  
it  w a s  e n a c t e d  p u r s u a n t  t o  a  r a c ia l  in t e g r i t y  a c t  o f  th e  
L e g is la t u r e  o f  V i r g in ia ,  m a k e s  i t  n o  le s s  o b je c t i o n a b l e  
t o  t h e  f i r s t  c la u s e  o f  t h e  X I V  A m e n d m e n t  t o  t h e  F e d e r a l  
C o n s t i t u t io n  t h a n  its  p r e d e c e s s o r s .



23

B y  section 3051, Code of Virginia, 1919, e m p o w e r ­
in g  c i t i e s  a n d  t o w n s  to  e n a c t  s e g r e g a t i o n  d is t r ic t s  f o r  
t h e  w h i t e  a n d  c o l o r e d  r a c e s ,  a n  e x p r e s s  r i g h t  is  r e s e r v e d  
to  c o l o r e d  s e r v a n t s  t o  r e s id e  in  t h e  f a m i l y  o f  w h i t e  p e o p l e  
o n  t h e  p r e m is e s ,  a n d  a p p e l l a n t s  c o n t e n d  in  t h e ir  S e v e n t h  
A s s ig n m e n t  o f  E r r o r s  ( R e c o r d ,  p .  2 5 )  t h a t  t h e  o r d i ­
n a n c e  is  n o t  u n r e a s o n a b le ,  b e c a u s e  e n a c t e d  w i t h  r e f e r ­
e n c e  t o  t h e  d e c l a r e d  p o l i c y  o f  t h e  S ta te  o f  V ir g in ia  a s  
e x p r e s s e d  in  a n  a c t  o f  t h e  L e g is la t u r e  ( A c t s  1 9 1 2 , p a g e  
6 0 ) .

T h e  la t t e r  a c t  is  in c o r p o r a t e d  in t o  s e c t io n s  30^2 to 
3053, Code of Virginia, 1919, and Michie’s Code of 192U- 
T h a t  a c t  p e r m it s  c i t ie s  a n d  t o w n s  t o  e n a c t  s e g r e g a t i o n  
o r d in a n c e s , a s  s h o w n  h e r e in b e fo r e .

T h e  c o u r t  in  Buchanan v . Warley, supra, a d d r e s s ­
in g  i t s e l f  t o  t h e  r e a s o n a b le n e s s  o f  t h e  p o l i c y  o f  t h e  L o u i s ­
v i l le  o r d in a n c e ,  r e m a r k e d  t h a t  a s  s e r v a n t s  w e r e  p e r ­
m it t e d  b y  i t  t o  l iv e  in  f a m i l i e s  o n  t h e  p r e m is e s ,  a n d  n e a r ­
b y  r e s id e n c e s  o f  t h e  r a c e s  in  t h e  a d j o i n i n g  b l o c k  c o u n t e ­
n a n c e d ,  t h e  o r d in a n c e  w a s  n o t  e n a c t e d  to  p r e s e r v e  r a c ia l  
p u r it y .

M ix e d  b lo c k s  a s  t o  c o lo r  o f  r e s id e n ts  a r e  p e r m it t e d  
to  c o n t in u e , u n d e r  th e  o r d in a n c e  in  q u e s t io n . C o lo r e d  
s e r v a n t s  a r e  p e r m i t t e d  a ls o  to  l iv e  in  w h i t e  f a m i l i e s  o n  
th e  p r e m is e s  u n d e r  t h e  o r d in a n c e ,  b e c a u s e  t h e  A c t  o f  
th e  G e n e r a l  A s s e m b ly  o f  V ir g in ia ,  section 3051, C o d e  V a . 
1 9 1 9 , s a y s  t h e y  h a v e  s u c h  p e r m is s io n , a n d  th e  o r d in a n c e  in  
q u e s t io n  d o e s  n o t  a n d  c a n n o t  d e p r iv e  th e  c o lo r e d  s e r v a n t  o f  
su ch  r ig h t .  Y e t ,  th e  a p p e lle e , w h o  is  c o lo r e d , t h o u g h  n o t  
a  s e r v a n t , c a n n o t  liv e  in  h is  o w n  h o u s e  u n d e r  th e  t e r m s  o f  
th e  o r d in a n c e ,  w h ile  th e  s e r v a n t  i f  c o lo r e d , is  p e r m it t e d  
c lo s e r  a s s o c ia t io n  w i t h  a  w h i t e  p e r s o n  l iv in g  u n d e r  th e  
s a m e  r o o f ,  t h a n  y o u r  a p p e l l e e  w o u l d  b e  i f  l i v in g  in  t h e  
s a m e  s q u a r e ,  b u t  u n d e r  a  s e p a r a t e  r o o f .



24

“ O b v i o u s ly  t h e r e  is  n o  d i f f e r e n c e  in  p o in t  o f  
l e g a l  p r i n c i p a l  b e t w e e n  a  l e g i s la t iv e  o r  m u n ic ip a l  
a c t  w h i c h  f o r b i d s  c e r t a in  a s s o c ia t io n s  a n d  o n e  w h ic h  
c o m m a n d s  c e r t a in  a s s o c ia t io n s .”  Ex parte Smith, 135 
M o . 2 2 7 .

“ T h e  w o r d  ‘L i b e r t y ’ a s  u s e d  in  t h e  C o n s t it u t io n  
o f  t h e  U n i t e d  S t a t e s , a n d  t h e  s e v e r a l  S t a t e s  * * * 
m e a n s  n o t  m e r e l y  t h e  r i g h t  t o  g o  w h e r e  o n e  c h o o s e s ,  
b u t  * * * is  d e e m e d  to  e m b r a c e  t h e  r ig h t  o f  th e  
c i t iz e n  to  l iv e  a n d  w o r k  w h e r e  h e  w i l l . ”  Young’s 
Case, 10 1  V a . 8 6 2 .

O c c u p a n c y  o f  r e s id e n c e s  b y  n e g r o e s  in  w h i t e  b l o c k s  
n e c e s s a r i l y ,  m u s t , in  s o m e  c a s e s ,  d e p r e c i a t e  t h e  v a lu e  o f  
r e s id e n t i a l  p r o p e r t y ,  b u t  a  m o n e t a r y  lo s s  o r  in c o n v e n ie n c e  
s h o u ld  n o t  b e  o f f s e t  a g a in s t  th e  p r ic e  o f  l ib e r t y ,  a n d  o u t ­
w e ig h  th e  la t te r .

T h e  v a u n t e d  e q u a l i t y  in  t h e  o r d i n a n c e  in  q u e s t io n , 
is , in  r e a l i t y ,  e q u a l i t y  o f  d e s t r u c t i o n  o f  t h e  c o n s t i t u t io n a l  
r ig h t s  u n d e r  t h e  F o u r t e e n t h  A m e n d m e n t  t o  t h e  N a t io n a l  
C o n s t i t u t io n  o f  t h e  c o l o r e d  a n d  w h i t e  r a c e s  t o  d w e l l  in  a 
h o m e  o f  t h e i r  o w n  c h o o s in g , r a t h e r  th a n  t h e  g iv i n g  o f  
e q u a l  r ig h t s  o f  r e s id e n c e ,  t o  e a c h  o f  s a id  r a c e s .  T h a t  
w h i c h  t h e  o r d i n a n c e  d o e s  g r a n t  is  u n l im it e d  p o w e r  to  
t h e  m o r e  o p u le n t  a n d  n u m e r o u s  o f  t h e  r a c e s  in v o lv e d ,  
t o  r e d is t r i c t  th e  C it y  o f  R ic h m o n d  b y  t h e  w h im s ic a l  
m o v e m e n t  o f  it s  in h a b it a n t s ,  w i t h o u t  a n y  r u le  o f  la w  to  
p r o t e c t  t h e  le s s  o p u le n t  a n d  le s s  n u m e r o u s  o f  t h e  tw o  
r a c e s .

T h e  c o u r t ,  in  Buchanan V. Warley, supra, a d o p t ­
in g  in  p a r t  t h e  la n g u a g e  o f  t h e  o p in io n  o f  t h e  G e o r g ia  
S u p r e m e  C o u r t  in  th e  c a s e  o f  Carey v . Atlanta, 1 43  Ga. 
1 9 2 , r e v ie w in g  Plessy V. Ferguson, a n d  th e  Berea College 
c a s e s  h e ld  a s  f o l l o w s :



2 5

“ In  e a c h  in s t a n c e  t h e  c o m p l a in in g  p e r s o n  w a s  
a f f o r d e d  t h e  o p p o r t u n i t y  t o  r id e ,  o r  t o  a t t e n d  in ­
s t i t u t io n s  o f  le a r n in g ,  o r  a f f o r d e d  t h e  t h in g  o f  w h a t ­
e v e r  n a t u r e  to  w h ic h , in  th e  p a r t ic u la r  c a s e , he was 
entitled. T h e  m o s t  th a t  w a s  d o n e  w a s  t o  r e q u ir e  
h im , a s  a  m e m b e r  o f  a  c la s s , t o  c o n fo r m  w it h  r e a s o n ­
a b le  r u le s  in  r e g a r d  t o  t h e  s e p a r a t i o n  o f  t h e  r a c e s .  
I n  n o n e  o f  th e m  w a s  h e  d e n ie d  th e  r ig h t  t o  use, 
control, or dispose o f  h is  p r o p e r t y ,  a s  in  t h is  c a s e .”  
( I t a l i c s  s u p p l i e d . )

T h e  C o u r t  la s t  m e n t io n e d  c o n c lu d e s  th a t

“ T h e  e f f e c t  o f  th e  o r d in a n c e  u n d e r  c o n s id e r a t io n  
w a s  n o t  m e r e ly  to  r e g u la te  a b u s in e s s  o r  th e  lik e , b u t  
w a s  to  d e s t r o y  th e  r ig h t  o f  th e  in d iv id u a l t o  a c q u ir e , 
enjoy a n d  d is p o s e  o f  h is  p r o p e r t y .  B e in g  o f  th is  
c h a r a c t e r ,  i t  w a s  v o id  as  b e in g  o p p o s e d  t o  th e  d u e  
p r o c e s s  c la u s e  o f  th e  C o n s t it u t io n .”  ( I t a l i c s  o u r s .)  
Buchanan v . Warley, supra.

T h u s  i f  o n e  a c q u ir e s  a r e s id e n c e  in  a  d e lim ite d  w h ite  
s q u a r e , h e  c a n  n o t  r e n t  it  t o  a  n e g r o  a n d  v ic e  v e r s a , a n d  
e n jo y  i t s  f r u i t s  f r o m  a n o th e r , u n d e r  th e  te r m s  o f  th e  
o r d in a n c e . C e r ta in ly  h e  c o u ld  n o t  u se  a n d  e n jo y  it  in  
p e r s o n , a n d  i f  a  t e n a n t  c o u ld  n o t  b e  f o u n d  w h o  h a d  th e  
r ig h t  t o  l iv e  th e r e in , th e n  h e  w o u ld  s u f fe r  th e  d e s t r u c t io n  
o f  h is  p r o p e r t y  r ig h t s .  T h e r e  is  a  v a s t  d i f fe r e n c e  b e ­
tw e e n  th e  d e s t r u c t io n  b y  le g is la t io n  o f  a  r ig h t  w h ic h  b y  
s u c h  a c t io n  d e p r iv e s  a  p e r s o n  o f  h is  p r o p e r t y  w it h o u t  d u e  
p r o c e s s  o f  la w , a n d  a n  a c t  o f  th e  le g is la tu r e  o r  m u n ic ip a l  
c o u n c il ,  w h ic h  is  so  f r a m e d  a s  t o  p r o fe s s  t o  a c c o r d  th e  
e q u a l p r o t e c t io n  o f  th e  la w s , w h e n  in  r e a l i t y  th e r e  is  n o  
r ig h t  t o  p r o t e c t .  S u c h  is  th e  n a tu r e  o f  th e  o r d in a n c e  h e re . 
T h e n  th e  a p p e lla n t s  s a y :  “ W h a t  is  g iv e n  to  o n e  r a c e



26

is  g iv e n  to  th e  o t h e r ;  th a t  w h ic h  is  d e n ie d  to  o n e , is  
d e n ie d  to  th e  o t h e r ,”  w h e r e a s , n o t h in g  is  g iv e n  o r  a l lo w e d , 
b u t  a  r ig h t  in c id e n t  t o  th e  o w n e r s h ip  o f  p r o p e r t y  is  d e ­
s t r o y e d  w i t h o u t  d u e  p r o c e s s  o f  la w .

T h e  a p p e lla n t s  fu r t h e r  s a y  t h a t  t h e  c a s e  o f  Corri­
gan v . Buckley, supra, is  d e c is iv e  o f  t h e ir  c a s e  h e r e . 
B r ie f ly  t h a t  c a s e  w a s  d is m is s e d  f o r  w a n t  o f  ju r i s d i c t io n  
o n  a p p e a l  t o  t h e  S u p r e m e  C o u r t  o f  t h e  U n i t e d  S ta te s . 
T h e  a p p e l l a n t  in  t h a t  c a s e  c o n t e n d e d  t h a t  a  r e s t r i c t iv e  
r a c i a l  c o v e n a n t  in  a  d e e d  w a s  in h ib i t e d  b y  t h e  X I I I  
A m e n d m e n t  to  th e  C o n s t it u t io n  o f  th e  U n it e d  S ta te s . T h a t  
c o u r t  a n s w e r i n g  s a id  t h e  la t t e r  a m e n d m e n t  w a s  i n a p ­
p l i c a b l e  a n d  t h a t  t h e  X I V  A m e n d m e n t  t o  t h e  C o n s t it u t io n  
o f  t h e  U n i t e d  S t a t e s  in h ib i t e d  n o t  t h e  a c t s  o f  in d iv id u a ls ,  
b u t  is  d i r e c t e d  a g a in s t  a c t s  o f  t h e  S t a t e  a n d  its  o f f i c e r s  
u n d e r  it s  a u t h o r i t y .  T h e  o r d in a n c e  h e r e  is  t h e  a c t  o f  
t h e  S t a t e  t h r o u g h  t h e  C o u n c i l  o f  R i c h m o n d ,  a n d  n o t  t h a t  
o f  a n  in d iv id u a l , a n d  th e  c a s e  o f  Corrigan v . Buckley, 
supra, is  n o t  a p p l ic a b le  h e r e , b u t  th e  c a s e  o f  Buchanan 
v . Warley, supra, is  c i t e d  b y  u s to  s h o w  it  w a s  d is t in ­
g u is h e d  in  th e  Corrigan V. Buckley c a s e , in  th a t  th e  
la t t e r  c a s e  c o n c e r n e d  t h e  a c t  o f  a n  in d iv i d u a l ,  a n d  t h e  
f o r m e r  c a s e ,  t h a t  o f  a  s t a t e .

T h e  a p p e l l a n t s  a t t e m p t  t o  d is t in g u is h  t h e  c a s e  o f  
Buchanan v . Warley, supra, a s  a p p l ie d  t o  th e  L o u is v i l le  
o r d i n a n c e  a n d  t o  t h e  o r d in a n c e  h e r e ,  in  a r g u in g  in  t h e ir  
b r i e f  t h a t  t h e  o r d in a n c e  in  q u e s t io n  a s  t o  t h e  u s e  o f  a 
r e s id e n c e ,  “ b a s e s  i t s  in t e r d ic t io n  on persons forbidden to 
intermarry, and not on color.”

I t  m a y  b e  s a f e l y  s a id  t h a t  t h e  C o u n c i l  o f  t h e  C it y  o f  
R ic h m o n d  d id  n o t  in t e n d  s u c h  a  r id ic u lo u s  s it u a t io n  a s  th a t  
p r o d u c e d  b y  t h e  p o s i t io n  o f  t h e  a p p e l l a n t s  t h a t  t h e  o r d i ­
n a n c e  is  n o t  b a s e d  o n  r a c e  o r  c o lo r ,  “but on persons for­
bidden to intermarry.”  F o r ,  in  t h e  l ig h t  o f  th a t  v ie w



27

u r g e d  b y  t h e  a p p e l la n t s ,  t h e  o r d in a n c e  c a r r i e d  t o  its  
l o g i c a l  c o n c lu s io n ,  w o u l d  in h ib i t  a  m a n  f r o m  m o v i n g  in to  
a n d  o c c u p y in g  a  r e s id e n c e  o n  a  d e lim it e d  s q u a r e  in  w h ic h  
h is  g r a n d m o t h e r ,  m o t h e r ,  s is te r , d a u g h t e r ,  g r a n d d a u g h ­
t e r ,  h a l f - s i s t e r ,  a u n t , s o n ’ s w i d o w ,  w i f e ’ s  d a u g h t e r ,  o r  h e r  
g r a n d d a u g h t e r ,  s t e p - d a u g h t e r ,  o r  b r o t h e r ’ s d a u g h t e r  a n d  
s is t e r ’ s d a u g h t e r , w e r e  th e n  r e s id in g , irrespective of their 
color or race, b e c a u s e  b y  th e  la w s  o f  V ir g in ia ,  h e  is  f o r ­
b id d e n  to  in t e r m a r r y  with them. Code of Va., 1919, sec. 
5085.

A  j a i l  s e n t e n c e  a n d  h e a v y  f in e  is  im p o s e d  f o r  m a r r y ­
in g  w it h in  th e  p r o h ib i t e d  d e g r e e s  o f  c o n s a n g u in it y  a n d  
a ff in ity . Code of Va., 1919, sec. U5̂ 0.

In  o t h e r  w o r d s ,  i f  a  m a j o r i t y  o f  a  m a n ’ s r e la t iv e s  
w i t h  w h o m  h e  is  th u s  f o r b i d d e n  to  in t e r m a r r y  o c c u p y  
r e s id e n c e s  o n  a  s q u a r e ,  t h e n  t h e  a p p e l l a n t s ’ c o n s t r u c t i o n  
o f  t h e  o r d in a n c e  h e r e ,  w o u l d  d e n y  h im  t h e  u s e  o f  a  r e s i ­
d e n c e  o n  s u c h  s q u a r e .

I t  m a y  b e  a s s e r t e d  w i t h o u t  f e a r  o f  c o n t r a d ic t io n ,  
t h a t  i t  w a s  n o t  t h e  in t e n t io n  o f  R i c h m o n d ’ s C o u n c i l  t o  
p r o h ib i t  p e r s o n s  f r o m  u s in g  a  r e s id e n c e  in  a  s q u a r e  o c ­
c u p i e d  in  t h e  m a j o r i t y  b y  p e r s o n s  w i t h  w h o m  t h e y  a r e  
f o r b i d d e n  t o  in t e r m a r r y  w i t h in  t h e  d e g r e e s  o f  c o n s a n ­
g u in i t y  a n d  a f f in it y  s e t  f o r t h  in  t h e  s t a t u t e s  o f  V ir g in ia  
a b o v e  m e n t io n e d ,  b u t  i t  w a s  t h e  in t e n t io n  o f  t h e  C o u n c i l  
o f  R i c h m o n d ,  a n d  t h e  o r d in a n c e  s a y s  so  e x p r e s s ly ,  t o  b a s e  
th e  o r d in a n c e  u p o n  V i r g in ia ’ s r a c ia l  in t e g r i t y  a c t , which 
act deals with race and color alone. I t  is  e q u a lly  c le a r  
t h a t  t h e  o r d in a n c e  h e r e  w a s  in t e n d e d ,  a n d  t h e  a p p e l la n t s  
a v o w ,  it  is  in t e n d e d  t o  b r in g  a b o u t  s e p a r a t e  r e s id e n t ia l  
d is t r ic t s ,  b a s e d  o n  c o l o r ,  f o r  t h e  w h i t e  a n d  n e g r o  r a c e s .

T h e  c o u r t  l o o k s  b e y o n d  t h e  m e r e  le t t e r  o f  t h e  la w  in  
s u c h  c a s e s . Yick Wo V. Hopkins, 11 8  U . S . 3 5 6 .

E s p e c ia l l y  a  c o u r t  o f  e q u i t y  w h i c h  l o o k s  a t  t h e  s u b ­

s t a n c e  o f  th in g s .



2 8

W h i l e  c o u r t s  c a n n o t  r u n  a  r a c e  o f  o p in io n  w i t h  t h e  
l e g i s la t u r e  a n d  d e c l a r e  u n w is e  c e r t a in  p o l i c e  r e g u la t i o n s ,  
t h e  la t e s t  o p in io n  o f  th e  S u p r e m e  C o u r t  o f  A p p e a ls  o f  
V i r g in ia  in  th e  c a s e  o f  Irvine V. City of Clifton Forge, 
r e v ie w e d  Hopkins v . City of of Richmond, 1 1 7  V a . 6 9 2 , in  
w h i c h  K e i t h ,  P r e s id e n t ,  d i s s e n t e d  a n d  w h i c h  c a s e  is  r e l i e d  
u p o n  b y  t h e  a p p e l l a n t s  t o  s u s t a in  t h e  o r d in a n c e  h e r e ,  
a n d  s a i d :

“ * * * t h e  o r d in a n c e  h e r e  is  n o t  m a t e r ia l l y  d i f ­
f e r e n t  f r o m  t h e  s e g r e g a t i o n  o r d i n a n c e  o f  t h e  c i t y  o f  
R i c h m o n d ,  w h i c h  w a s  u p h e l d  a s  a  v a l i d  e n a c t m e n t  
b y  t h e  c o u r t  in  Hopkins V. City of Richmond, 11 7  
V a .  6 9 2 . * * * S in c e  t h a t  c a s e  w a s  d e c i d e d ,  t h e
S u p r e m e  C o u r t  o f  t h e  U n i t e d  S t a t e s  h a s  d e c i d e d  t h a t  
a n  o r d in a n c e  o f  t h e  C it y  o f  L o u i s v i l l e ,  s u b s t a n t ia l ly  
t h e  s a m e  a s  t h e  o n e  u n d e r  c o n s id e r a t i o n ,  is  in  c o n ­
f l i c t  w i t h  t h e  F o u r t e e n t h  A m e n d m e n t  o f  t h e  C o n ­
s t i t u t io n  o f  t h e  U n i t e d  S t a t e s , a n d  is  t h e r e f o r e  n u l l  
a n d  v o id .  T h a t  c a s e  w a s  f u l l y  a r g u e d  b y  a b le  c o u n ­
s e l ,  a n d  s e v e r a l  c i t ie s ,  in c l u d i n g  t h e  C it y  o f  R i c h ­
m o n d , V a .,  w e r e  a ls o  p e r m it t e d , a s  amicus curiae, 
to  file  b r i e f s  in  th e  c a s e .”  Irvine V. Clifton Forge, 
1 2 4  V a .,  p p . 7 8 1 -7 8 2 .

T h e  V i r g in ia  c o u r t  d ir e c t e d  th e  C ir c u it  C o u r t  o f  th e  
C it y  o f  C l i f t o n  F o r g e  t o  r e m it  th e  fin e  im p o s e d  a n d  to  
d is m is s  th e  p r o s e c u t io n .

T h e  S u p r e m e  C o u r t  o f  th e  U n ite d  S ta te s  h a s  t w ic e  
h e ld  th a t  th e s e  r a c ia l  s e g r e g a t io n  o r d in a n c e s  a r e  n o t  s u c h  
a s  a r e  d e s ig n e d  to  c o n s e r v e  racial purity, b u t  e n a c te d  to  
h a v e  s e p a r a t e  r e s id e n t ia l  d is t r ic t s  f o r  t h e  w h it e  a n d  n e g r o  
r a c e s . I n  o t h e r  w o r d s ,  t h e  o r d in a n c e  h e r e  w a s  e n a c te d  
u n d e r  th e  g u is e  o f  a  p o l i c e  r e g u la t io n  t o  p r e s e r v e  r a c ia l  
in t e g r i t y ,  l ik e  t h e  L o u is v i l le  a n d  R ic h m o n d ’ s f o r m e r  o r d i -



29

n a n c e , th e  r e a l  o b je c t  b e in g  a s  th e  a p p e lla n t s  s a y  in  t h e ir  
a s s ig n m e n t  o f  e r r o r s  a n d  in  t h e ir  b r i e f ,  t o  h a v e  s e p a r a te  
w h it e  a n d  c o lo r e d  r e s id e n t ia l  d is t r ic t s .

S ta tu te s  o f  V ir g in ia ,  p u n is h in g  p r o h ib it e d  m a r r ia g e  
b e tw e e n  th e  w h it e  a n d  c o lo r e d  r a c e s  a r e  th e  s u b s ta n t ia l 
m e a n s  c a lc u la te d  to  p r e v e n t  c r o s s -b r e e d in g . I f  th e  le g is la ­
t u r e  d e s ir e s  to  p r o h ib i t  i l l i c i t  c r o s s -b r e e d in g , i t  h a s  a m p le  
p o w e r  to  e n a c t  la w s  p u n is h in g  th e  o f fe n d e r s  o f  b o t h  r a c e s , 
m o r e  s e v e r e ly  th a n  s u c h  in t e r c o u r s e  b e t w e e n  p e r s o n s  
o f  th e  s a m e  r a c e , b u t  it  h a s  n o t  d o n e  so , a s  f a r  a s  o u r  
r e s e a r c h  h a s  g o n e  in t o  th e  V ir g in ia  s ta tu te  la w s .

T h a t  t h e r e  is  r a c ia l  a n t ip a t h y  m u s t  b e  a d m it te d , b u t  
th e  la w  is  u n a b le  to  o v e r c o m e  it  b y  le g is la t io n  d e s ig n e d  
t o  s e p a r a t e  t h e  r a c e s . W it h o u t  b a n is h m e n t  o f  th e  c o lo r e d  
r a c e , in t e r c o u r s e  in  th e  v a r io u s  r e la t io n s  in  l i fe  m u s t  
c o n t in u e  w it h  th e  w h i t e  r a c e . T h e  p r o b le m  is  n o t  s o lv e d  
b y  s e p a r a t io n  o f  th e  r a c e s  in  s c h o o ls , p u b l ic  c o n v e y a n c e s  
a n d  r e s id e n c e s ;  f o r  b o t h  r a c e s , w h it e  a n d  c o lo r e d , a r e  e n ­
t i t le d  t o  l iv e  h e r e  u n d e r  th e  p r o t e c t in g  a e g is  o f  th e  C o n s t i­
t u t io n , S ta te  a n d  F e d e r a l ;  l i v in g  h e r e , t h e r e  m u s t  n e c e s ­
s a r i ly  b e  a s s o c ia t io n  in  th e  v a r io u s  r e la t io n s  in  l i fe .

“ T h a t  t h e r e  e x is t s  a  s e r io u s  a n d  d if f icu lt  p r o b ­
le m  a r is in g  f r o m  a  fe e l in g  o f  r a c e  h o s t i l i t y  w h ic h  
th e  la w  is  p o w e r le s s  t o  c o n t r o l ,  a n d  t o  w h ic h  i t  m u s t  
g iv e  a  m e a s u r e  o f  c o n s id e r a t io n , m a y  b e  f r e e l y  a d ­
m it te d . B u t  it s  s o lu t io n  c a n n o t  b e  p r o m o t e d  b y  d e ­
p r iv in g  c it iz e n s  o f  t h e ir  c o n s t it u t io n a l  r ig h t s  a n d  
p r iv i le g e s .”  Buchanan v . Warley, supra.

I n  c o n c lu s io n , th e  a p p e lla n t s  c o n te n d  th a t  th e  p o li c e  
p o w e r  o f  t h e  S ta te  c a n  b e  e x e r c is e d  s o  to  p r e v e n t  th e  u se  
o f  a  r e s id e n c e  b a s e d  o n  a  m a n ’ s c o lo r ,  b e c a u s e  s u c h  p o w e r  
m a y  b e  e m p lo y e d  to  z o n e  p r o p e r t y  f o r  in d u s t r ia l  a n d



3 0

r e s id e n t ia l  p u r p o s e s ,  i f  th e  la t t e r  h a s  s u b s ta n t ia l  r e la t io n  
t o  t h e  p u b l ic  w e l fa r e .  I f  s u c h  p o w e r  b e  c o n c e d e d  t o  e x is t  
th e n  a  c it iz e n , b e c a u s e  o f  h is  c o lo r ,  r e l ig io n ,  o r  n a t io n a l i t y  
o f  o r ig in ,  m a y  b e  d e n ie d  t h e  u se  o f  h is  r e s id e n c e  a s  a  
h o m e , w h ic h  a p p e lle e  c o n t e n d s  cannot be done under the 
Constitution and laws of the United States.

R e s p e c t fu l l y  s u b m it te d ,

A L F R E D  E . C O H E N , 

J O S E P H  R . P O L L A R D ,

Counsel for Appellee.















n