South Carolina Bias Constitution Under Legal Attack

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“PRESS RELEASE® e 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND 
107 WEST 43 STREET * NEW YORK 36, N. Y. © JUdson 6-8397 

ARTHUR B. SPINGARN D> THURGOOD MARSHALL 
Prosident Director and Counsel 

WALTER WHITE ROBERT L. CARTER 
Secretary Assistant Counsel 

ALLAN KNIGHT CHALMERS ARNOLD De MILLE 
Treasurer Press Relations 

SOUTH CAROLINA BIAS CONSTITUTION 
UNDER LEGAL ATTACK May 18, 1955 

RICHMOND, VA., May 17.--The South Carolina ennstitution was 

attacked today in a brief filed with the U, S. Court of Appeals by 

lawyers for the NAACP Legal Defense and Educational Fund. 

The state laws praviding for the separation of the races in city 

and state buses is denounced as a violation of the 1lkth Amendment to 

the Federal Constitution and a denial of the rights to which Negroes 

are entitled as American citizens. 

The brief was filed in behalf of a Columbia, S, C., Negro woman 

who was abused and assaulted by a white bus driver and who brought a 

25,000 damage suit against the owner of the bus lines, The case was 

dismissed by the U. S. District Court. 

South Carolina statutes provides for the segregation »f the races 

on motor vehicles in both city and intrastate carriers and empnwers 

bus drivers or operators with special police authority to arrest per- 

sons who violate the bus segregation laws, 

These statutes also impose a fine of $5 to $25 on passengers who 

violate the law, and a fine of $50 to $250 on carriers which fail to 

enforce it. 

The woman, Mrs. Sarah Mae Flemming, brought the suit against the 

South Carolina Electric and Gas Ce, to recover damages resulting from 

being ejected from the bus and a blow she received in the abdemen 

struck by the driver, 

The incident took place June 22, 1954, when Mrs. Flemming 

boarded a crowded bus and was compelled to stand near the front door 

and behind the driver, While the majority of the passengers were 

Negroes, no white person was standing, 

At the next block, a white person got off, leaving a seat vacant 

where she was stancing and behind the driver. Mrs. Flemming took 

the seat which was placed in front of several white passengers. 



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Immediately, the bus driver ordered her out of the seat and 

into the rear in loud, abusive and threatening language and tone. 

When he repeated the order, she became frightened and feared fur- 

ther humiliation and possibly bodily harm. She left the seat, 

When the bus stopped at the next corner, she attempted to fol- 

low a white passenger out of the front door, The driver ordered her 

to leave by the rear door and struck her in the stomach to further 

force her to obey his order. 

The $25,000 damage suit was dismissed by the U. S. District 

Court for the Eastern District of South Carolina. Attorney for 

Mrs. Flemming in the trial court, Philip Wittenberg of Columbia, 

argued that she was denied her constitutional right when the driver 

refused to let her sit where she pleased and leave from the same exit 

as other passengers, He based his contention on the May 17, 195 

decision in the school segregation cases. 

The Court, in dismissing the action, said that "one's education 

and personality is not developed on a city bus," and to hold that the 

school segregation decision "extended to the field of public trans- 

portation would be an unwarranted enlargement of the doctrine an- 

nounced in that decision and an unreasonable restrice on ‘the police 

power of the state. 

"This Court is still bound by the decision in Plessy v. Ferguson 

+ « « which holds that segregation in the field of transportation is 

a valid exercise of state police power, Although the Brown (school 

segregation) case discredited some of the language used in the Plessy 

v. Ferguson, the Court's holding in that case has not been overruled.” 

The dismissal opinion was rendered by U. S. District Court Judge 

George Bell Timmerman, one of the three judges in the original South 

Carolina school segregation case. 

In their brief filed with the U. S. Court of Appeals for the 

Fourth Circuit here today, the NAACP Legal Defense attorneys repre- 

senting Mrs, Flemming contend that Judge Timmerman erred in basing 

his opinion on the statutes of the State of South Carolina, 

Statutes requiring enforcement of segregation are unconstitu- 

tional and void and are not governed by the Plessy v. Ferguson 

"separate but equal" formula, the lawyers contend. The Supreme Court 

has already read into the records the provision that the "separate 

but equal" doctrine is outdated and should be abolished. 



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The lawyers point out that the Fourth Circuit itself in recent 

decisions abandoned the "separate but equal" doctrine in public edu- 

cation, housing, interstate commerce and public recreation. 

"We think, however, that these more recent developments in the 

law warrant the conviction that the kind of state policy here involved 

also falls within the 1th Amendment's proscription against state 

enforced racial distinctions," the lawyers say. 

Mrs. Flemming, in occupying the seat or attempting to leave by 

way of the front door of the bus, was "asserting a right considered 

sacred in a democracy--the right to freedom of locomotion," the law- 

yers state. But for the state policy here being questioned, there 

could be little doubt that the owners of the bus lines violated its 

contractual obligations to Mrs, Flemming under the circumstances of 

this case. 

"It could not be seriously contended that any state by legislation 

or common carrier by regulation could deny any group of its citizens 

the right of access to the services of common carriers solely on the 

basis of race or color,” the lawyers argue in the brief. 

Further, the South Carolina Gas and Electric Co. is engaged in 

the business of a motor vehicle carrier, transporting passengers for 

hire over the streets of Columbia, and is required to protect its 

passengers against assault or interference with the peaceful comple- 

tion of their journey, the attorneys claim. 

Despite the fact that the Plessy v. Ferguson "separate but equal" 

doctrine specifically applied in the field of intrastate commerce, the 

lawyers contend, the South Carolina policy, enforced by the owners of 

the bus, restricts Mrs. Flemming's liberty to use the common carrier's 

facilities on the grounds of her race and, therefore, "offensive" to 

the llth Amendment, 

It is believed this is the first direct attack ever made on a 

state constitution requiring the enforcement of its segregation laws. 

NAACP Legal Defense and Educational Fund attorneys for 

Mrs. Flemming are Thurgood Marshall, director-counsel and Robert L. 

Carter, assistant, of New York, and Philip Wittenberg of Columbia, 

S, C.: They entered the case at the request of Mr, Wittenberg. 

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