Brown v. Lee Brief and Appendix of Appellees

    I n  th e

Hutted States (Eourt of Appeals
F oe the F otjeth Circuit

No. 9243

J. A rthur Brown, et. al.,

Appellees,

Davis L ee,
Appellant.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
POR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF AND APPENDIX OF APPELLEES

Jack Greenberg 
M ichael Meltsner

10 Columbus Circle 
New York 19, New York

M atthew J. Perry 
L incoln C. Jenkins, Jr.

1107% Washington Street 
Columbia, South Carolina

Attorneys for Appellees



INDEX TO BRIEF

PAGE

Statement of the C ase........................................................  i

A rgument .............................................................................  g

I. Appellant Lee Never Raised a Legally Permis- 
sable Defense for Denying the Relief Granted 
Below, and, Therefore, Has No Standing to Com­
plain of the Manner in Which Such Relief Was 
Granted .... ...... .......................................................... 5

II. The District Court Did Not Abuse Its Discretion 
by Enjoining Segregation at Parks and Beaches 
Owned and Operated by the State of South Caro­
lina ......... ................. ................ .................................. 7

Conclusion.................................................................................... 12

Table op Cases:

Bailey v. Patterson, 369 U. S. 31 ...................................6,11

Chandler & Price Co. v. Brandtgen & Kluge Inc.,
296 U. S. 53 ...................................................................... 10

Columbia G & E Corp. v. American Fuel & P. Co.,
322 IT. S. 379 ..................................................................  10

Dawson v. Mayor & City Council of Baltimore, 220 
P. 2d 386 (4th Cir. 1955), aff’d 350 U. S. 877 .......6,11

East Baton Rouge Parish School Board v. Davis, 287 
F. 2d 379 (5th Cir. 1961) ........... ............ ..................  6, 7



11

PAGE

Hansberry v. Lee, 311 U. 8 . 32 ........................................  6

Louisiana v. NAACP, 366 U. S. 293 ............................... 9

Reynolds Pen Co. v. Marshall Field & Co., 8 F. R. D.
313 (N. D. 111. 1948) ......................................................  10

St. Helena Parish School Board v. Hall, 287 F. 2d
376 (5th Cir. 1961) ......................................................  6

Salem Engineering Co. v. National Supply Co., 75 F.
Supp. 993 (W. i). Penn. 1948) ............. -....................  10

Staude Mfg. Co. v. Berles Cuton Co., 31 F. Supp. 178 
(E. D. N. Y. 1939) ........................................................  10

True Gun-All Equipment Corp. v. Bishop Co., 26 
F. R. D. 150 (E. D. Kty. 1960)  - ....... ....................  10

Watson v. City of Memphis, 373 U. S. 526   ........6,11

Statutes :

S. C. Code (1962) §§51.1 et seq.........................................  2
15 U. S. C. §15 ..................... -.............................................. 3

Other A uthority:

Moore’s Federal Practice, §24.17 10



Ill

INDEX TO APPENDIX

PAGE

Motion to Intervene as a Defendant........................_.....  la

Intervener’s Answer ........................    2a

Order Granting Intervention ........................................... 4a

Motion for Leave to Set Up Counterclaim ...................  5a

Counterclaim ........................................................................  6a

Motion to Bring in Additional Party ........................... 12a

Affidavit of Default ...............      13a

Letter From Appellees’ Counsel to Judge M artin.......  14a

Letter From Appellees’ Counsel to Clerk .....    16a

Transcript of Hearing ......      17a

Opinion ..................................................................................  22a

Order ......................................................................................  31a

Notice of Appeal 32a



Isr th e

Imteft States Court of Appmis
F oe the F otjkth Circuit

No. 9243

J. A rthur Brown, et al.,

-v.-
Appellees,

Davis L ee,
Appellant.

APPEAL PROM THE UNITED STATES DISTRICT COURT 
EOR THE EASTERN DISTRICT OF SOUTH CAROLINA

BRIEF OF APPELLEES

Statement of the Case

As the appendix submitted by appellant Davis Lee does 
not comply with Rule 10 of the Rules of this Court, appel­
lees have printed an appendix to this Brief in order to 
provide the Court with portions of the record necessary to 
an informed disposition of this appeal.

Appellant’s Statement of the Case does not state fairly 
or completely the points involved or the posture of this 
appeal and, therefore, appellees include here a Statement 
correcting and amplifying that found in appellant’s Brief.

Appellees, eleven Negro citizens of the United States 
and South Carolina, filed a complaint in the district court 
July 8, 1961,1 naming as defendants the South Carolina 1

1 An Amended Complaint was filed October 17, 1961 which did 
not substantially alter the original complaint (22a).



2

State Forestry Commission, the State Forester and State 
Park Director. Appellees sought an injunction against 
racial segregation at state-owned and operated beaches and 
parks and against the enforcement of statutes of the State 
of South Carolina which required such segregation, S. C. 
Code (1962) §§51.1 et seq. (25a). The complaint was filed 
as a “ class action” on behalf of appellees and other Negro 
citizens similarly situated “who have been denied the use 
of public park facilities in the State of South Carolina.”

On July 11, 1961, appellant Davis Lee filed a Motion to 
Intervene as a defendant (la ) and proposed Intervener’s 
Answer (2a). Mr. Lee sought intervention on the ground 
that he “ is similarly situated like the approximately 900,000 
other Negro citizens of South Carolina and as such has a 
defense to plaintiffs’ claim presenting both questions of law 
and of fact which are common to the main action” (la ). He 
alleged that to grant relief against segregation “ would de­
prive him and other Negro citizens of the right to freedom 
of choice in the selection of their friends” (2a). Neither the 
Motion to Intervene or the proposed Answer referred in 
any way to claims for money damages, losses suffered by 
Mr. Lee’s business or the addition of parties not then before 
the court (la-3a).

The Motion to Intervene was granted and the proposed 
Answer accepted December 13,1961, the district court grant­
ing the motion upon consideration that intervener claimed 
“a defense to the plaintiffs’ claim presenting both questions 
of law and of fact which are common to the main action” 
(4a).

February 5, 1962, Mr. Lee filed a Motion for Leave to 
Set Up a Counterclaim and Supplemental Answer on the 
ground that the counterclaim was not set up in his original 
answer “because he had to wait for the court to rule on his 
Motion to Intervene” (5a). He also filed a motion to have



3

the South Carolina Branches of the National Association 
for the Advancement of Colored People (NAACP) joined 
as a party (12a).

The proposed counterclaim (6a-lla ) sought to set up a 
claim for ten million dollars “ for violations in restraint of 
trade” under the Sherman Anti-Trust Act, 15 U. S. C. §15, 
against appellees and the South Carolina Branches of the 
NAACP. The facts alleged to support the proposed coun­
terclaim are confusing, rambling and redundant and no 
specific acts are ascribed to the appellees, although there 
are eonclusory allegations to the effect that appellees and 
the South Carolina Branches of the NAACP supported an 
alleged boycott against Mr. Lee’s business, apparently be­
cause of his disapproval of the NAACP. Mr. Lee demanded 
a trial by jury on the issues raised by the counterclaim 
(11a).

On May 28, 1962, Mr. Lee filed an Affidavit of Default, 
claiming his proposed counterclaim had not been answered 
and, therefore, appellees and the South Carolina Branches 
of the NAACP were in default for the sum of ten million 
dollars (13a). At this time the court had taken no action 
on the Motion for Leave to Set Up a Counterclaim or the 
motion to add the South Carolina Branches of the NAACP 
as a party to the action.

On April 18, 1963, the district court2 held a hearing on 
all pending motions, took evidence and heard oral argu­
ment. Among the motions considered were appellees’ mo­
tions for a preliminary injunction (filed November 30, 
1961) and for summary judgment (filed March 23, 1963) 
to end segregation at parks and beaches operated by the 
State of South Carolina and enjoin the operation of state

2 The Hon. Judge J. Robert Martin presided at the April 18, 
1963 hearing. Prior to the summer of 1962, when he retired, pre­
trial motions in the ease were heard by the Hon. Judge George 
Bell Timmerman.



4

statutes which required segregation. The transcript of that 
proceeding reveals that Mr. Lee, as intervener, was present 
and appeared pro se (17a). He argued the merits of his 
Motion for Leave to Set Up a Counterclaim and asked the 
court to voluntarily dismiss the Affidavit of Default (18a, 
19a). He filed also a motion to amend his proposed counter­
claim in order to add the National Association for the 
Advancement of Colored People as a party. He would not 
comment on the other motions before the court because, 
“ I was not supplied with any of the pleadings,” but stated 
to the court, “ I am concerned principally with my personal 
action in this matter”  (19a). After appellees’ counsel ad­
dressed himself to Mr. Lee’s contentions, the court gave 
Mr. Lee opportunity to reply (21a) and extended the same 
privileges as accorded the other parties with respect to fil­
ing memoranda and reply briefs (21a).

July 10, 1963, the district court filed its opinion and order 
(22a-31a). The court determined that plaintiffs and other 
Negroes similarly situated were entitled to injunctive re­
lief to protect their right to use the state parks of South 
Carolina and the court issued such an injunction, including 
an injunction against the enforcement of the state statutes 
which required segregation at parks (31a). The court’s 
opinion stated that Mr. Lee had raised no defense capable 
of effecting the outcome of the litigation and that his pro­
posed counterclaim and motion to add parties would create 
issues foreign to the original action (30a):

The Answer of the Intervener, Davis Lee, does not and 
could not affect the outcome of this case. Lee’s motion 
to bring in additional parties and to file a counterclaim 
against the plaintiffs and the additional parties at­
tempts to create issues which are foreign to the pres­
ent action and to gain jurisdiction of parties over which 
this Court does not now have jurisdiction. Mr. Lee



5

may pursue his alleged cause of action in a separate 
suit against any parties who may have committed 
unlawful acts against him. His motions to bring in 
additional parties and to file a counterclaim are hereby 
denied.

The judgment entered by the district court did not, however, 
mention the proposed counterclaim (31a).

A R G U M E N T

I.

Appellant Lee Never Raised a Legally Permissable De­
fense for Denying the Relief Granted Below, and, There­
fore, Has No Standing to Complain of the Manner in 
Which Such Relief Was Granted.

Appellees take the position that the Court should not 
reach the merits of this appeal for the reason that appel­
lant Lee never raised any legally cognizable defense to 
the relief sought by appellees and, therefore, was improp­
erly granted permission to intervene in the first instance.3 
He may not complain of the relief received by appellees 
below, the manner in which it was granted, or the failure 
of the district court to grant him leave to file a counterclaim 
because he had no standing to oppose the relief granted.

Mr. Lee sought to intervene on the ground “ that he is 
similarly situated like the approximately 900,000 other 
Negro citizens of South Carolina, and as such has a defense 
to plaintiff’s claim presenting both questions of law and of

3 Appellees also have filed with the Court a Motion to Dismiss 
the appeal herein on the grounds of lack of jurisdiction and frivol- 
ity.



6

fact which are common to the main action” ( la ).4 * The only 
ground for intervention alleged by Mr. Lee and relied on 
in the order granting permission to intervene was the con­
tention that “ to grant the relief prayed by plaintiffs would 
deprive him and other Negro citizens of the right to freedom 
of choice in the selection of their friends” (24a). This was 
the “ defense to plaintiffs’ claim” for which he sought and 
was granted intervention (4a). But this is no defense to 
the claim raised by plaintiffs in their complaint for injunc­
tive relief prohibiting operation of segregated public facili­
ties. The unconstitutionality of segregation at state-sup­
ported public facilities is closed as a litigable issue. Dawson 
v. Baltimore City, 220 F. 2d 386 (4th Cir. 1955) aff’d 350 
U. S. 877; Watson v. City of Memphis, 373 U. S. 526; Bailey 
v. Patterson, 369 U. S. 31, 33. Mr. Lee need not avail him­
self of his constitutional rights but that does not mean he 
can preclude others who desire to exercise their rights from 
doing so.

The Fifth Circuit has dealt with this question in St. 
Helena Parish School Board v. Hall, 287 F. 2d 376, 379 
(5th Cir. 1961) and East Baton Rouge Parish School Board 
v. Davis, 287 F. 2d 380 (5th Cir. 1961). In those cases 
parents of white school children sought to intervene, in a 
suit brought to desegregate the schools, claiming desegrega­

4 Should it be consequential, intervention was “permissive” and 
not of right as claimed by appellant. Intervention of right was 
neither claimed nor granted, for such intervention would require 
“representation of the applicant’s interest by existing parties is or 
may be inadequate and the applicant is or may be bound by a 
judgment in the action,”  Federal Buies of Civil Procedure, Rule 
24(a). There was no allegation in the Motion to Intervene or find­
ing in the order granting intervention of inadequate representa­
tion or that Mr. Lee would be bound by a judgment in the action. 
Nor could Mr. Lee be bound by a judgment in the action for in a 
spurious class suit only the parties are bound. Hansberry v. Lee,
311 U. S. 32, 45. Finally, both the Motion to Intervene and the 
order granting intervention use the language of Rule 24(b) Fed­
eral Rules of Civil Procedure, “Permissive Intervention.”



7

tion violated their rights. The Fifth Circuit rejected such 
intervention as follows, 287 F. 2d at 379.

We also conclude that no legally permissable basis for 
denying the relief sought in the complaint was pleaded 
of the interveners. It was merely an effort of the inter­
vener to obtain a ruling in this trial court that the 
Supreme Court decision in the School Segregation Case 
was erroneous. This the district court had no power 
to do.

As Mr. Lee merely sought to obtain a ruling that segre­
gation in publicly owned recreational facilities was con­
stitutional, he had no valid claim or defense to raise before 
the district court and has no standing to claim error in the 
manner which the district court disposed of the issues be­
fore it. The procedures followed by the district court are 
immaterial to Mr. Lee, for at no time has he raised any 
substantive right which could defeat the relief granted by 
the district court.

II.
The District Court Did Not Abuse Its Discretion by 

Enjoining Segregation at Parks and Beaches Owned 
and Operated by the State of South Carolina.

Should the Court reach the merit of Mr. Lee’s appeal, it 
will find the district court acted at all times within the area 
of discretion granted to it by the Federal Rules of Civil 
Procedure.

Appellant claims the court below erred “ by hearing Mo­
tion for Summary Judgment before completion of the rec­
ord.”  5 The only question of fact raised by the complaint— 
the segregation of South Carolina’s state parks—was not 6

6 Appellant’s Brief, p. 7.



8

denied by Mr. Lee in his answer (2a). (Indeed segregation 
was required by statute, the enforcement of which the dis­
trict court enjoined.) Testimony offered by appellees at 
the April 18, 1963 hearing established that appellees were 
not permitted to enter state parks although white persons 
were admitted at the same time. This evidence was not 
contradicted. As there were no material or genuine issues 
of fact before the court, disposition of the legal issues on 
summary judgment was appropriate.

Appellant’s “ Motion for Declaratory Judgment,” filed 
over 30 days after the April 18, 1963, hearing does not sup­
ply a factual issue. The motion attacked the procedures 
followed by the district court at the April 18, 1963 hearing, 
such as the sequence in which the court heard the various 
motions before it and the court’s decision to hear oral testi­
mony. Mr. Lee was present at the hearing and able to raise 
these objections at that time. He cannot toy with the court 
by objecting to trial procedures while a case is pending 
decision over 30 days after the time of trial. A  district 
court acts within its allowable discretion when it determines 
the order and character of the motions and evidence it will 
hear. Such objections as were not made at the hearing were 
waived. The cases cited by appellant in which summary 
judgment was denied are not relevant. In those cases there 
were genuine issues of fact outstanding with respect to 
the merits of a cause. That is not the case here.

Appellant claims that the district court erred in not, on its 
own motion, ordering counsel for the other parties to serve 
him with those “ pleadings” 6 he claimed he had not received. 
Appellant does not now indicate the “ pleadings” which he 
did not have nor does he explain why he did not move the 
court below to require service. 6

6 Mr. Lee in his Brief refers to “pleadings” but he seems to refer 
to papers filed in the case and pleadings indiscriminately.



9

At the conclusion of the April 18, 1963 hearing appellant 
Lee stated for the first time that he had not received all 
the “ pleadings” in the case. He did not state which “ plead­
ings” he had not received or request that he receive specific 
“ pleadings” from the appellees. He did not move the court 
to require service of such “ pleadings” as he claimed he had 
not received. Mr. Lee may not have received all of the 
papers exchanged by the parties prior to the granting of his 
Motion to Intervene, but certainly there is no responsibility 
to serve ag intervener before he is made a party. After 
Mr. Lee was granted permission to intervene, appellees 
served Mr. Lee with all pleadings and papers filed in the 
case pertaining to him and required to be served. On March 
22, 1963, Mr. Lee was served with the Motion for Summary 
Judgment and was informed by counsel for appellees of 
the matters which would be brought before the court on 
April 18, 1963 (14a-16a). Appellant had almost a month to 
prepare for the hearing and request such papers as he had 
not received, but he chose to remain silent. By his conduct, 
he is barred from asserting now what he could have easily 
remedied prior to the April 18 hearing.

Appellant claims that the court below erred in permitting 
witnesses to testify at the April 18, 1963 hearing when the 
Motion for Summary Judgment did not specifically men­
tion that witnesses would testify. Appellant relies on Rule 7 
of Federal Rules of Civil Procedure to support this con­
tention, but Rule 7 only states that the “ grounds” for a 
motion must be stated in the motion. It does not require 
that a litigant state the manner in which he intends to 
establish the “ grounds” stated. A decision to hear oral 
testimony in support of Motions for Summary Judgment 
and Preliminary Injunction is clearly in the discretion of 
the District Judge. See Louisiana v. NAACP, 366 U. S. 
293, 298 (Mr. Justice Frankfurter concurring).



10

Appellant Lee claims an intervener has an absolute right 
to file a counterclaim regardless of its subject matter or 
the parties it seeks to join. He claims that the district court 
was bound in this litigation to hear his ten million dollar 
damage claim for restraint of trade against appellees and 
parties not before the court. He offers no authority for 
this theory other than general statements from commen­
tators.

It has long been settled, however, that an intervener is 
not permitted to assert claims beyond the issues framed by 
the pleadings. Chandler <& Price Co. v. Brandt gen & Kluge, 
Inc., 296 U. S. 53, 56-59 (1935). The Federal Rules of Civil 
Procedure have not relaxed this principle that an intervener 
cannot bring by counterclaim issues not in dispute between 
the original parties or in which one of the original parties 
has no interest. See Columbia G <fc E Corp. v. American 
Fuel & P. Co., 322 U. S. 379, 383 (1944). (“As an intervener 
the United States was limited to the field of litigation open 
to the original parties, Chandler Co. v. Brandtjen and 
Kluge, 296 U. S. 53, 57-60” ) ;  Reynolds Pen Co. v. Marshall 
Field & Co., 8 F. R. D. 313 (N. D. 111. 1948); Staude Mfg. 
Co. v. Berles Cuton Co., 31 F. Supp. 178 (E. D. N. Y. 1939); 
Salem Engineering Co. v. National Supply Co., 75 F. Supp. 
993 (W. D. Penn. 1948). Indeed, if it had been known at 
the time Motion to Intervene was filed that Mr. Lee would 
seek to introduce extraneous issues into the case, the grant 
of intervention would have been improper. See True Gun- 
All Equipment Corp. v. Bishop Co., 26 F. R. D. 150 (E. D. 
Kty. I960).7

7 It is true that Professor Moore has directed some criticism 
toward this rule suggesting that a district court might order sepa­
rate trials, 4 Moore’s Federal Practice §24.17, p. 135, but his posi­
tion has not been adopted. And even Moore takes the position that 
the district court should limit counterclaims which would unduly 
delay or complicate the issues before the court.



11

Appellant claims that the decision of the district court 
is erroneous because he is a Negro and does not wish to halt 
segregation and because he did not have an opportunity to 
convince the district court appellees have no right to de­
segregated state parks. Both these contentions are un­
acceptable in light of Supreme Court decisions establishing 
beyond any doubt Negro citizens’ right to use of state 
parks without discrimination on the basis of race. Watson 
v. City of Memphis, 373 U. S. 526; Bailey v. Patterson, 369 
U. S. 31, 33; Dawson v. Mayor and City Council of Balti­
more, 350 U. S. 877. Nor does Mr. Lee indicate how he was 
denied the opportunity to support his position. He directs 
us generally to the transcript of the April 18, 1963 hearing 
but, far from suggesting he was denied his right to partici­
pate, that transcript indicates he was given every oppor­
tunity to express himself on the questions before the court 
(18a-21a). His claim that the court interfered with his 
right to participate is baselesss and, significantly, Mr. Lee 
never confronted the court at the time of the hearing with 
any complaint that the court was not giving him a fail- 
opportunity to express himself.



12

CONCLUSION

W herefore, for the foregoing reasons, appellees pray 
that the judgment of the district court be affirmed.

Respectfully submitted,

Jack Greenberg 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J. Perry 
L incoln C. Jenkins, Jr.

1107% Washington Street 
Columbia, South Carolina

Attorneys for Appellees



APPENDIX



APPENDIX

Davis Lee, the above applicant for intervention, move the 
Court for an order permitting him to intervene as a defen­
dant in the above entitled action and permitting his pro­
posed answer annexed hereto to be filed as the answer of 
said intervenor in this action, upon the grounds that he is 
similarly situated like the approximately 900,000 other 
Negro citizens of South Carolina, and as such has a defense 
to plaintiffs’ claim presenting both questions of law and 
of fact which are common to the main action.

Davis Lee

407 Butler Street,
Anderson, S. C.

July 11, 1961

Motion to  Intervene as a Defendant

(Filed: July 11, 1961)



2a

Comes now Davis Lee, who has filed herewith his motion 
to intervene under Eule 24 of the rules of Federal Civil 
Procedure, and submits this as his annexed answer.

1. The applicant to intervene is a citizen of South Caro­
lina. He lives at 407 Butler Street, Anderson, South Caro­
lina, and is publisher of several weekly newspapers, and is 
directly affected by any class action brought by any group 
who claims to represent all of the Negro citizens of this 
state.

2. The applicant to intervene contends that plaintiffs and 
their attorneys have declared that this action was brought 
on behalf of themselves and all other persons “ similarly 
situated” ; that he regards himself as being “ similarly situ­
ated” , and that he has not authorized anyone to bring any 
action on his behalf, and that he feels that the majority of 
Negro citizens of this state have not authorized anyone to 
represent them.

3. This intervener feels that to grant the relief prayed 
by plaintiffs would deprive him and other Negro citizens of 
the right to freedom of choice in the selection of their 
friends.

4. That the complaint does not contain a cause of action 
upon which relief can be granted in its present form.

5. That the complaint is defective in that it claims to be 
brought under existing Federal Statutes for the violation 
of rights guaranteed under the Constitution which require

Intervener’ s Answer

(Filed: July 11, 1961)



3a

Intervener’s Answer

no Jurisdictional amount, yet plaintiffs have set up a Juris 
dictional amount in a complaint in which a money judg
ment is not sought.

Davis Lee

Intervener and Attorney 
407 Butler Street, 
Anderson, S. C.

July 11, 1961



4a

This cause came on to be heard on the motion of Davis 
Lee, an individual, for permission to intervene and be made 
a party defendant in the above entitled suit and to file his 
proposed answer to the complaint in this suit.

The motion of the applicant for intervention is made upon 
the ground that he is similarly situated like the approxi­
mately 900,000 other Negro citizens of the State of South 
Carolina and, as such, has a defense to the plaintiffs’ claim 
presenting both questions of law and of fact which are com­
mon to the main action.

Upon consideration of the motion of said Davis Lee, the 
motion is hereby granted.

It is further ordered that the proposed answer of the 
intervenor, Davis Lee, to the complaint shall stand as 
and for the answer of the said Davis Lee to the complaint 
in the above entitled action, and it is further

Ordered that the proceedings heretofore had or taken in 
this action shall be effective for and against the said Davis 
Lee, made a party defendant to this action by this order.

George B ell T immerman 
United States District Judge

December 13, 1961

Order Granting Intervention

(Filed: December 12, 1961)



Motion for Leave to Set Up Counter-Claim

(Filed: February 5, 1962)

Comes now, Davis Lee, defendant by intervention, and 
moves the court for leave to file a supplemental answer and 
counter-claim, a copy of which is attached hereto, on the 
ground that defendant failed to set up the said counter­
claim in his original answer because he had to wait for the 
court to rule on his motion to intervene.

February 5, 1962

Davis Lee
407 Butler Street
Anderson, South Carolina



6a

Counter-Claim

(Filed: February 5, 1962)

The Counter-Claimant Alleges:

1—  That he is a defendant by intervention and that juris­
diction of the court is based on allegations of Federal 
violations in original complaint.

2— That this counterclaim is brought on behalf of this 
defendant by intervention, and all other citizens of South 
Carolina, both Negro and White, who have lost homes, 
businesses, jobs, credit standing or other valuable considera­
tion as the result of the unlawful activities of these plaintiffs 
and The South Carolina Branches of The NAACP.

3—  That The South Carolina Branches of The NAACP 
be made a party to this action.

4—  That this counterclaim is a suit for damages, and for 
injunctive relief, seeking relief for the redress for boycotts 
and other unlawful acts in restraint of trade in violation 
of South Carolina Code Article 2, section 66-64, and for 
violation of The Sherman Anti-Trust Act F. R. C. P. 8 (a), 
28 U. S. C. A. section 1337, and for violations in restraint 
of trade under Title 15 section 15 United States Code An­
notated to section 26.

5—  That this counterclaimant brings this action under sec­
tion 10-205, South Carolina Code of laws, in behalf of him­
self, and thousands of citizens like himself, who have been 
hurt, and suffered great financial losses through the unlaw­
ful acts of these plaintiffs and the branches of The NAACP 
in South Carolina that these injured citizens, constitute a 
class so numerous as to make it impossible to bring them all 
before the court at this time.



7a

6—  That this counterclaimant is the publisher of several 
weekly newspapers. That his papers have opposed pressure 
groups and agitators; And that he has pointed out to his 
readers from time to time that these groups have done his 
race more harm than good. His editorials have been re­
printed around the world; They have been reproduced in 
daily and weekly papers in every state in this nation, and 26 
of them have been inserted in The Congressional Record.

7— Because of the wide circulation given Ms views, and 
the influence they have had on the thinking of the masses of 
Negroes, These plaintiffs and The South Carolina Branches 
of The NAACP, which they head and and help to direct, 
have entered into a conspiracy to silence and put this 
counterclaimant out of business.

8— For a newspaper to survive and be self sustaining, it 
must have circulation and advertising.

9— These plaintiffs and The South Carolina Branches of 
The NAACP were aware of the above facts, so they there­
by entered into a conspiracy with each other to prevent this 
defendant’s newspapers from building the circulation and 
from getting the advertising.

10—  That on or about October 15th, 1958, citizens of Rock 
Hill, South Carolina, who were shocked at the high handed 
pressure tactics of the local branch of The NAACP, invited 
this counterclaimant to visit their city. As the result he 
wrote and published a series of articles and editorials. 11

11—  Officials of the local branch began an immediate boy­
cott of his newspaper. Dr. Duckett, wealthy Negro Physi­
cian who has backed The NAACP financially, went to

Counter-Claim



8a

agents and frightened them to the extent that they were 
afraid to sell the paper.

12—  The papers were shipped to Rock Hill by Trailway 
bus, and the Negro attendant, who was a member of The 
NAACP, held the papers and hid them until the date 
on the papers had expired.

13—  The Rock Hill branch appealed to other branches 
for an all out boycott of counterclaimant’s paper. An ap­
peal was made to the national office in New York for help 
to destroy this counterclaimant and Ms newspapers. The 
national office responded to the request.

14—  Mass meetings were held throughout the state. 
Meetings were held at State College at Orangeburg and 
Negro lawyers and business leaders from the two Caro- 
linas met and discussed how to get rid of this counterclaim­
ant.

15— An Anderson Negro preacher, who pastored three 
churches at the time, approached a shady character follow­
ing a meeting of the local NAACP in January, 1959, and 
offered him $500.00 to way-lay this counterclaimant. This 
defendant was tipped off about the plot and headlined it in 
his. newspaper.

16— Throughout South Carolina and other states, the boy­
cott against counterclaimant’s newspapers have spread.

17— A leading chain of banks in South Carolina placed 
an advertisement in counterclaimant’s South Carolina 
paper. The Ad ran for nearly two years. In 1960 one of 
the Vice-presidents, called and informed this counter­

Counter-Claim



9a

claimant that the bank would have to cancel the A d ; That 
northern textile officials, who had large deposits, claimed 
that the bank was supporting this defendant against The 
NAACP, and if the bank did not discontinue the Ad, the 
textile firm would move its account. The bank canceled 
the Ad.

18—  These acts and conspiracies on the part of these 
plaintiffs and the branches of The NAACP in South Caro­
lina were successful to the extent that counterclaimant has 
been bankrupted; that his credit has been jeopardized, and 
he has been embarrassed financially.

19—  To that end, and for that purpose, the plaintiffs and 
The South Carolina branches of The NAACP, connived and 
conspired with each other to do and make, and pursuant 
to the conspiracy did and made, the above acts, all of 
which were done and made for the1 purpose of destroying 
counterclaimant’s newspaper in violation of the rights 
guaranteed to him by The First and 14th Amendments to 
The Federal Constitution.

20— That counterclaimant took over The Savannah Trib­
une, a weekly Negro newspaper November 1, 1960, and the 
local branch of The NAACP, at the direction of W. W. Law, 
local president and Georgia State president, immediately 
circulated a petition to get members to sign that they would 
not read the paper.

21—  Thus the Georgia NAACP became a part of The 
conspiracy to destroy this counterclaimant and his news­
papers. Pressure was brought to bear on advertisers to keep 
them from advertising in counterclaimant’s newspaper— A 
large number of Negro business places that sold other

Counter-Claim



10a

Negro newspapers refused to permit the distributor to 
leave this defendant’s newspaper in their places for sale.

22—  That these plaintiffs and The South Carolina 
branches of The NAACP brought suit to force the state to 
integrate Edisto Beach State Park. This action forced the 
state to close the park. John Doe, a state employe, was 
thrown out of work, and a few weeks later he lost his home 
and everything that he had.

23—  John Doe The 2nd is the operator of a Men’s clothing 
Store in Sumter, South Carolina. He spoke out against 
the pressure tactics that was being employed by the local 
NAACP. An immediate boycott was organized against him 
to the extent that he has lost $100,000 per year in revenue.

24— John Doe The 3rd operated a bus company in Rock 
Hill, South Carolina. The local NAACP demanded that he 
integrate his buses, when he refused to comply an im­
mediate boycott was imposed. He was forced to suspend 
operation, and the local NAACP purchased two buses and 
went in the bus business.

25—  This counterclaimant alleges and avers that thou­
sands of John Does have been hurt all over South Carolina 
by the acts of these plaintiffs and The South Carolina 
branches of The NAACP, that only fictitious names have 
been used, to protect these victims from further reprisals, 
but that this counterclaimant, after obtaining their consent, 
will amend this complaint and insert their true names.

26— As a result of the combination and conspiracy herein 
before alleged and of the various acts done in pursuance 
thereof by these plaintiffs and the branches of The NAACP

Counter-Claim,



11a

and others, as herein alleged, The power and influence 
of the association has been greatly increased, and all South 
Carolina businesses that oppose the pressure techniques 
of the association will be boycotted.

27—Under the law, both state and Federal, every member 
of an un-incorporated association is personally liable for 
the conduct and acts of the un-incorporated association. 
This counterclaimant is of the opinion, and has reason 
to believe, that the branches of The NAACP in South Caro­
lina are un-incorporated, and that each member is person­
ally liable under the law for damages inflicted by the boy­
cotts.

Wherefore, counterclaimant prays judgment against the 
plaintiffs and The South Carolina branches of The NAACP, 
and against each of them for the sum of $10,000,000 (Ten 
Million Dollars), treble damages, as provided by said 
Clayton Amendment to the said Sherman Anti-Trust Act, 
together with a reasonable counsel fee, and besides the 
costs and disbursements of this action.

Counterclaimant demands trial by jury.

Dated: February 5,1962

Counter-Claim

Davis L ee

407 Butler Street
Anderson, South Carolina



12a

Motion by Defendant to Bring in Additional 
Party Because of Counter-Claim

(Filed: February 5, 1962)

1— Defendant Davis Lee, moves the court to make an 
order bringing in The South Carolina Branches of The 
NAACP as an additional party directing that a summons 
be served upon J. Arthur Brown, State President, who is 
also a plaintiff in this cause, requiring him to answer.

2— That J. Arthur Brown as a citizen of South Carolina, 
so that jurisdiction of said South Carolina Branches of the 
NAACP can be obtained and the joinder will not deprive 
the court of jurisdiction of the action.

Davis L ee

407 Butler Street
Anderson, South Carolina

February 5,1962



13a

Affidavit of Default

(Filed: May 28, 1962)

Comes now, Davis Lee, defendant by intervention in the 
above entitled cause, and moves this court for a judgment 
by default in the above-entitled cause, and shows that the 
counter-claim in the above cause was filed in this court on 
the 6th day of Feb., 1962 and that copy of such counter­
claim was sent to the attorneys of the plaintiffs by the 
clerk of this court on the 6th day Feb. 1962; that no answer 
or other defense has been filed by the plaintiffs.

Wherefore, defendant moves that this court make and 
enter a judgment by default against the plaintiffs and The 
South Carolina branches of the NAACP, and against each 
of them for the sum of $10,000,000 (Ten Million Dollars), 
treble damages, as provided by said Clayton Amendment to 
said Sherman Anti-Trust Act, together with reasonable 
counsel fee, and besides the cost and disbursements of this 
action.

Counterclaimant demands trial by jury.

Davis L ee

407 Butler Street
Anderson, South Carolina

Dated: May 28,1962

(Seal)

Ollie M. Stalling 
Notary Public for S. C.

Sworn before me this 28th day of May, 1962.



14a

(March 22, 1963)

Honorable J. Robert Martin 
United States District Judge 
Greenville, South Carolina

R e : Brown, et al. v. S. C.
Forestry Commission, et al.
Civil Action No. 774

Dear Judge Martin:

We request a hearing in the above case as soon as possible. 
As you probably know, this case has been pending since 
July, 1961 and there are numerous motions which remain 
pending. These are as follows:

1. Plaintiffs’ Motion for Preliminary Injunction.

2. Intervener’s Motion for Leave to file Counterclaim.

3. Intervener’s Motion for Judgment by Default.

4. Plaintiffs’ Motion to Strike Portions of Defendants’ 
Answer.

5. Plaintiffs’ Objections to Interrogatories Propounded 
by Defendants.

6. Plaintiffs’ Objections to Defendants’ Requests for 
Admission.

7. Defendants’ Motion for an Advisory Jury.

In addition to the above, we are today filing Notice of Mo­
tion for Summary Judgment. I have inserted April 18, 
1963 as the date for hearing of this motion. However, if 
that date is not satisfactory with the Court, we request that

Letter to Judge Martin



15a

you set a date for the hearing of this and other pending 
motions as soon as your schedule permits. In the event the 
matter cannot be disposed of on the Motion for Summary 
Judgment, we request an early trial upon the merits.
With kindest regards, I am

Respectfully yours,

Matthew J. Perky

M JP :a

c c : Honorable Daniel R. McLeod
. Attorney General of South Carolina 

Columbia, South Carolina

Mr. David W. Robinson 
Robinson, McFadden & Moore 
Attorneys at Law 
1213 Washington Street 
Columbia, South Carolina

Mr. Davis Lee 
407 Butler Street 
Anderson, South Carolina

Letter to Judge Martin



1 6 a

(March 22, 1963)

Mr. John C. Rogers 
Deputy Clerk of Court 
United States District Court 
Columbia, South Carolina

R e : Brown, et al. v. S. C.
Forestry Commission, 
et al.— C /A  No. 774

Dear Mr. Rogers:

I am herewith enclosing the original and copy of Notice of 
Motion for Summary Judgment in the above matter for 
filing in your office. Copies of same are being forwarded to 
Defendants’ Counsel

Letter to Clerk

Yery truly yours,

Matthew J. Perry

MJP :a

Enclosures
c c : Honorable Daniel R. McLeod

Attorney General of South Carolina 
Columbia, South Carolina

Mr. David W. Robinson 
Robinson, McFadden & Moore 
Attorneys at Law 
1213 Washington Street 
Columbia, South Carolina

Mr. Davis Lee 
407 Butler Street 
Anderson, South Carolina



17a

Hearing on Motions

1st the

DISTRICT COURT OF THE UNITED STATES

F oe the E astern D istrict of South Carolina 

Columbia D ivision 

C /A  AC-774

— 1 —

J. A rthur Brown, et al., 

—vs.—
Plaintiffs,

S. C. F orestry Commission, et al.,

Defendants.

Motions pending in the above case came on to be heard 
in the United States Courtroom at Columbia, South Caro­
lina, on the 18th day of April, 1963, with

H onorable J. Robert Martin, Jr.,
United States District Judge, Presiding.

A p p e a r a n c e s :

Matthew J. Perry, Escp, and 
L incoln C. Jenkins, Jr., Esq., 

For the Plaintiffs

David W. Robinson, Esq., and 
Harry L ightsey, Jr., Esq.,

For the Defendants

Davis L ee, Esq.,
For Intervenor



18a

Hearing on Motions

* * * * *

The Court: I believe you have got a motion as to the 
intervention.

Mr. Perry: Yes, sir.
—43—

Mr. Robinson: Do I understand that counsel is not going 
to press his motion for summary judgment or for temporary 
injunction?

Mr. Perry: Yes, sir, I do intend to press them. How­
ever, I thought that the intervenor would now proceed with 
his motions, and then of course we would conclude with 
our motions for preliminary injunction and for summary 
judgment, unless the Court would prefer otherwise.

The Court: Well, Mr. Robinson, I don’t imagine is inter­
ested in the latter part of it. Suppose we clear him off 
as of this time, if that is all right with you.

* * * * *
— 69—

* * * * *
The Court: You are the movant as far as the intervenor 

is concerned?
Mr. Perry: No, sir, Mr. Lee is the intervenor and repre­

sents himself.
The Court: Very good.
Mr. Lee: If it please the Court, I would like to give a 

posture of the case as it stands now.
In July of 1961 these plaintiffs filed their complaint in 

this court as a class action. I took the position that they 
didn’t represent me, and that I wanted to declare that so 
that everybody would know that when they said that the

—70—
action was brought on behalf of everybody similarly situ­
ated that that didn’t apply to me.

— 42—



19a

In September of 1961 I filed a motion to intervene as a 
defendant in the case. Judge Timmerman heard the motion 
in December and granted my motion.

In February of 1962 I filed an amended answer which 
included a counterclaim. The plaintiffs didn’t answer, and 
later I filed an affidavit of default. In connection with the 
affidavit of default, I wish to submit at this time a motion 
for voluntary dismissal of the affidavit of default, and a 
motion to amend the counterclaim.

It is impossible for me to comment on the matters that 
transpired here before noon, because of the fact that I was 
not supplied with any of the pleadings by either the plain­
tiffs’ counsel or counsel for the defendants. I am concerned 
principally with my personal action in this matter.

Up to now the plaintiffs have filed no pleadings as far as 
I am concerned. And because of the fact that they have not 
filed any pleadings where I am concerned, their motion 
for summary judgment where I am concerned is premature. 
And that is my position, your Honor.

Mr. Perry: Your Honor, may it please the Court if I 
understand the posture of this matter correctly, Judge 
Timmerman passed an order allowing Mr. Lee to intervene 
on the ground that Mr. Lee had represented that the plain-

—71—
tiffs in this action did not represent him in that he is not 
a member of the class— or rather that he is a Negro but 
that he had never authorized anyone to represent him in 
this action, and that therefore he wanted to come in and 
let it be known that he was not a party to this suit.

Thereafter, Mr. Lee filed a motion for leave to file a 
counterclaim. The counterclaim, the proposed counterclaim 
was attached to the motion for leave to file the counterclaim 
and purported to seek damages against these plaintiffs and

Hearing on Motions



20a

certain other parties in the sum of ten million dollars. The 
motion for leave to file the counterclaim has never been 
heard and passed upon. Hence, we take the position that 
it is not before the Court, unless of course your Honor will 
at this time entertain that motion, which we, I hasten to say, 
do not urge.

I might say further that—well, may I inquire, sir, as to 
where we are now on the motion? Does the Court consider 
that the plaintiff has urged his motion for leave to file a 
counterclaim?

The Court: I would interpret it that that is what he is 
now asking.

Mr. Perry: I see. Well I believe, sir, that the proposed 
counterclaim seeks damages under the Sherman antitrust 
amendment, and it seeks damages against the named plain­
tiffs and against the class of persons the named plaintiffs

- 7 2 -
purport to represent, and also against certain other parties, 
namely, the National NAACP, the State NAACP, who are 
not parties to this proceeding.

Now the proposed basis for the intervenor’s claim or the 
alleged basis of it would appear to be matters foreign to 
this suit. The intervener was allowed to come into this 
matter because of his assertion that the State of South 
Carolina could not properly defend in his behalf, and that 
he wanted to interpose a special defense. The proposed 
counterclaim does not in any way address itself to any­
thing contemplated by the original action. And if it is felt 
that a cause of action exists under the Sherman anti-trust 
act, why, that can be made the basis of a completely sepa­
rate suit. We respectfully urge that it has no place as a 
part of this action.

I thank you, sir.

Hearing on Motions



21a

Tlie Court: Is there anything you care to say in reply? 
Mr. Lee: If it pleases the Court, an intervenor might 

bring a counterclaim on any cause of action that he might 
have, that is not even connected with this particular action.

The Court: As in the other matters, I will extend the 
same privilege of 15 days for each to file a memorandum of 
your positions, the authorities that you care to submit, and 5

- 7 3 -
days after which to file replies.

Mr. L ee: Thank you, sir.
Mr. Perry: Thank you, sir.

Hearing on Motions



22a

(Filed: July 10, 1963)

This suit was originally filed on July 8,1961, by the plain­
tiffs for their own benefit and on the behalf of all other 
persons similarly situated. In the Complaint the plaintiffs 
allege that they are denied the use of public park facilities 
in the State of South Carolina solely because they are 
Negroes in violation of their constitutional rights. The 
plaintiffs ask that certain statutes of the State of South 
Carolina, which allegedly require racial discrimination in 
the public park system in South Carolina, be declared un­
constitutional and that the defendants be enjoined from 
prohibiting them and other Negroes similarly situated from 
making use of the public parks and beaches owned and 
operated by the State of South Carolina.

By Order of The Honorable George Bell Timmerman, 
dated September 17, 1961, the plaintiffs filed an Amended 
Complaint on October 17, 1961, which, in effect, asked for 
the same relief as the original complaint.

On November 30, 1961, plaintiffs filed a Motion for Pre­
liminary Injunction in which they asked that the Court 
grant a preliminary injunction against the defendants re­
straining them from enforcing certain statutes of South 
Carolina and from discriminating against Negroes in re­
gard to the use of the public parks and beaches owned and 
operated by the State of South Carolina until this suit 
could be heard on its merits.

On December 17, 1963, the defendants filed an Answer in 
which they admit that the State of South Carolina operates 
some parks for white citizens and some parks for Negro 
citizens in accordance with State law but deny that such 
operation of the park facilities deprives the plaintiffs of 
their constitutional rights. Defendants further allege that

Opinion and Order



23a

this action is brought in reality by nonresident corpora­
tions.

Along with the Answer, defendants moved that the issues 
in the cause be tried by the Court with an Advisory Jury.

On January 2, 1963, plaintiffs filed a motion to strike 
paragraphs (11), (12), (13), (15) and so much of para­
graph (16) as alleges “ This action is in reality an effort 
by nonresident corporations to enforce alleged rights to 
equal protection possessed by individuals.”

On January 11, 1963, defendants propounded fifteen in­
terrogatories to the plaintiffs in which they seek informa­
tion pertaining to the National Association for the Ad­
vancement of Colored People; the NAACP Legal and 
Educational Defense Fund, the relationship between the 
NAACP and its Legal and Educational Defense Fund, the 
offices held in the NAACP by the plaintiffs Newman, 
Shaprer, Brown and Nelson; the payment of legal fees 
to the attorneys representing the plaintiffs in this ac­
tion (and other suits pending in the Federal Courts) and 
the status of the attorneys in relation to the NAACP or 
its Legal and Educational Defense Fund. The plaintiffs 
promptly filed objections to all interrogatories propounded 
upon the ground that they are irrelevant, immaterial, im­
pertinent and not directed to any issue in controversy in 
this action.

On March 23, 1963, the plaintiffs filed a Motion for Sum­
mary Judgment under the provisions of Rule 56 of the 
Federal Rules of Civil Procedure.

On July 11, 1961, Davis Lee, moved the Court for an 
Order permitting him to intervene in the action as a defen­
dant, and file an Answer to the complaint in the suit, upon 
the ground that he was similarly situated like the approxi­
mately 900,000 Negro citizens of the State of South Carolina 
and, as such, has a defense to the plaintiffs’ claim present­

Opinion and Order



24a

ing both questions of law and of fact which are common to 
the main action. By order of The Honorable George Bell 
Timmerman, dated December 13, 1961, the motion was 
granted and the Answer of the defendant Davis Lee was 
filed effective October 12, 1961.

On February 5, 1962, the defendant Davis Lee filed a 
motion to bring in the action an additional party, the South 
Carolina Branches of the National Association for the Ad­
vancement of Colored People. At the same time the said 
defendant filed a motion for leave to file a “ supplemental 
Answer and counterclaim,” the proposed counterclaim was 
filed as an attachment to the latter motion. In the pro­
posed counterclaim, defendant asks damages against the 
plaintiffs and the South Carolina branches of the NAACP 
in the sum of $10,000,000, treble damages, as provided by 
the Clayton Amendment to the Sherman Anti-Trust Act on 
the theory that the plaintiffs in concert with the South 
Carolina Branch of the NAACP has disrupted his news­
paper business and has injured the business of other citi­
zens by organized boycotts of trade and other alleged un­
lawful activity. On April 18, 1963, the defendant, Davis 
Lee, filed a proposed amendment to the original proposed 
counterclaim in which he alleges that the NAACP also con­
spired in the activities referred to above and asks for the 
sum of $500,000 treble damages, as provided by the Clayton 
Amendment to the Sherman Anti-Trust Act. At the same 
time the defendant, Davis Lee, moved the Court for an 
Order joining the National Organization and the South 
Carolina Branches of the NAACP as parties to the action.

On April 18, 1963, this Court held a hearing on all the 
pending motions in Columbia, South Carolina, at which 
time all arguments were heard and testimony was intro­
duced in connection with the Motion for Summary Judg­
ment. The Court took all motions under advisement and

Opinion and Order



25a

gave counsel for the parties permission to file briefs in 
support of their respective positions.

The State of South Carolina operates a total of twenty- 
six State Parks, nineteen of which are designated for the 
use of white citizens and seven of which are designated for 
the use of Negro citizens. The State Park system is oper­
ated pursuant to State Statutes which are as follows:1

“ § 51.1. The State Commission of Forestry may con­
trol, supervise, maintain and wherever practicable im­
prove all parks belonging to the State or for general 
recreational and educational purposes.

“ § 51-2.1. The State Commission of Forestry may oper­
ate and supervise only racially separate parks. The au­
thority to operate and supervise racially integrated 
parks is denied to the Commission, the State Forester, 
the State Director, and the Superintendent of State 
Parks.

“ § 51-2.2. No person shall have access to the facilities 
of the State parks without the express permission of 
the State.

“ § 51-2.3. The State Commission of Forestry may ad­
mit to the facilities of the State parks only persons 
having the express permission of the State to use such 
facilities. The authority to admit to the facilities of 
the State parks persons who do not have the express 
permission of the State to sue them is denied to the 
Commission, the State Forester, the State Director, 
and the Superintendent of State Parks.

“ § 51-2.4. Permission is hereby granted to the citizens 
of the State to use the facilities at the parks for their

Opinion and Order

1 References are to the South Carolina Code (1962).



26a

own race under such rules and regulations not incon­
sistent with the provisions of §§ 51-2.1 to 51-2.2.3 as 
the State Commission of Forestry may establish.”

The State Parks are geographically located throughout 
the State so that a park is reasonably accessible to all the 
people regardless of where they reside. Because of the 
greater number of white parks than Negro parks, the white 
parks are much more accessible to the white population 
than the Negro parks are to the Negro population. The 
parks are located in areas outside of urban communities. 
None of them have the benefit of city police protection. 
Generally speaking, the recreational activities in these parks 
consists of swimming, camping, picnicking and in some cases 
the rental of cabins. The parks employ no law enforcement 
officers as such and must rely upon the local law enforce­
ment authorities for the preservation of law and order.

During the year 1962, some three million people made use 
of the State Parks’ facilities in South Carolina.

On August 30, 1960, three of the plaintiffs, J. Arthur 
Brown, H. P. Sharper and J. Herbert Nelson, presented 
themselves at Myrtle Beach State Park, one of the beaches 
maintained by the State of South Carolina. When the plain­
tiffs arrived at the park entrance, they were advised that 
the park was closed and were denied admission. At the 
time the park was occupied by white persons and there is no 
evidence that such persons were required to leave the park.

On June 15, 1961, J. Arthur Brown, Edith Davis, Mary 
Nesbitt, Hils Norris, Jr., Murry Canty, Sam Leverett and 
Gladys Porter attempted to enter Sesqui Centennial Park, 
located near Columbia, South Carolina. Upon their arrival 
at the park entrance, Chief J. P. Strom, of the South Caro­
lina Law Enforcement Division informed the plaintiffs that 
the park had been closed and that they could not enter.

Opinion and Order



27a

All of the plaintiffs are members of the NAACP and 
some of them hold offices in that organization. All the plain­
tiffs were residents and citizens of the State of South Caro­
lina at the time they attempted to enter the parks and at 
the time this suit was instituted but subsequently H. P. 
Sharper and Edith Davis have moved from the State of 
South Carolina.2

There can be no doubt that the plaintiffs were denied ad­
mission to the State Parks because they were Negroes; in 
fact, under the statutory law of South Carolina, they were 
and are prohibited from using the nineteen parks desig­
nated for white persons.

The recent case of Watson v. Memphis, ------ U. S. --------
(No. 424) decided May 27, 1963, by the United States Su­
preme Court dictates to this Court the decision which must 
be reached in the present case. In the Watson ease, the 
plaintiffs brought a class action against the City of Mem­
phis, Tennessee, in which they alleged that the City had 
denied certain of the plaintiffs access to various recre­
ational facilities owned and operated by the City. The 
City admitted that it operated a majority of the facilities 
on a segregated basis and admitted that it must terminate 
this practice but contended that complete desegregation of 
the recreational facilities should be done gradually. At the 
trial in the District Court, the defendant offered testimony 
of several law enforcement officers who stated that, in their 
opinion, if the facilities were integrated, racial strife would 
develop to such an extent that it would be necessary to close 
many of the parks thus depriving many citizens of these 
facilities. The District Court denied the relief sought by 
the plaintiffs and ordered the city to submit within six

2 These plaintiffs no longer have standing to pursue this action 
and they are hereby dismissed as plaintiffs.

Opinion and Order



28a

months a plan3 for the gradual integration of all facilities. 
On appeal to the Court of Appeals for the Sixth Circuit, 
the Order of the District Court was affirmed. 303 F. 2d 863. 
The United States Supreme Court Reversed. Mr. Justice 
Goldberg in his opinion for the court said:

“ * # * Solely because of their race, the petitioners 
here have been refused the use of city-owned or oper­
ated parks and other recreational facilities which the 
Constitution mandates be open to their enjoyment on 
equal terms with white persons. The city has effected, 
continues to effect, and claims the right or need to pro­
long patently unconstitutional racial discrimination 
violative of now long-declared and well-established 
rights. The claims of the city to further delay in 
affording the petitioners that to which they are clearly 
and unquestionably entitled cannot be upheld except 
upon the most convincing and impressive demonstra­
tion by the city that such delay is manifestly com­
pelled by constitutionally cognizable circumstances 
warranting the exercise of an appropriate equitable dis­
cretion by a court. In short, the city must sustain an 
extremely heavy burden of proof.

“ Examination of the facts of this case in light of 
the foregoing discussion discloses with singular clarity 
that this burden has not been sustained; . . . ”  Page 7 

# # * * #
“In support of its judgment, the District Court also 

pointed out that the recreational facilities available for 
Negroes were roughly proportional to their number

3 Although the plan was not part of the record in the case, it 
was described in oral argument before the Court of Appeals. The 
plan did not provide for complete desegregation of all facilities 
until 1971. Watson v. City of Memphis, supra f /n  1.

Opinion and Order



29a

and therefore presumably adequate to meet their needs. 
While the record does not clearly support this, no more 
need be said than that, even if true, it reflects an im­
permissible obeisance to the now thoroughly discredited 
doctrine of ‘separate but equal.’ The sufficiency of 
Negro facilities is beside the point; it is the segregation 
by race that is unconstitutional.” Page 11

The Court remanded the case for proceedings in accord­
ance with the opinion.

Applying the Watson case to the facts presented here, 
there can be only one decision. Under the facts stated above 
and the decision which must be reached herein, there is no 
necessity in ruling on the various motions as between the 
plaintiffs and the original defendants except the motion for 
summary judgment. Under the existing facts, there are 
no remaining issues to be passed upon which would or 
could affect the outcome of this case. The plaintiffs were 
denied admission to two of the State Parks operated by 
the State of South Carolina solely because of their race 
in accordance with the statutory law of South Carolina. 
There can be no racial discrimination in the operation 
of State owned or operated recreational facilities. Wat­
son v. City of Memphis, supra. The plaintiffs and all 
other Negroes similarly situated are entitled to use 
the State Parks of South. Carolina in the same man­
ner and to the same extent as are white persons. 
The statutory laws set out above which require separate 
parks for the use of white citizens and Negro citizens are 
in violation of the Fourteenth Amendment of the United 
States Constitution.

The plaintiffs’ motion for summary judgment under Rule 
56 of the Federal Rules of Civil Procedure must be granted.

Opinion and Order



30a

The record reflects that in the opinion of the officers of 
the Commission of Forestry and the South Carolina Law 
Enforcement Department, the desegregation of the South 
Carolina parks will drastically affect the police protection 
required at the various parks and in their opinion the de­
segregation will result in serious racial strife at the parks. 
Some affiants stated that they believe it would be necessary 
to close the parks if they were desegregated. To a similar 
argument in the Watson case, the United States Supreme 
Court said: “ * * * The compelling answer to this conten­
tion is that constitutional rights may not be denied simply 
because of hostility to their assertion or exercise.” Page 8 
(citations of cases omitted) The Court cannot, however, 
ignore the fact that long standing customs are not changed 
without planning, education, leadership and foresight. Con­
sidering the far reaching consequences of this decision upon 
the State of South Carolina, it is manifest that the State 
must be allowed a reasonable opportunity to staff these 
facilities with properly trained joersonnel and police officers 
so that the transition of the State Parks from a segregated 
system to an integrated one may be carried out in an 
orderly manner.

The Answer of the Intervenor, Davis Lee, does not and 
could not affect the outcome of this case. Lee’s motion to 
bring in additional parties and to file a counterclaim against 
the plaintiffs and the additional parties attempts to create 
issues which are foreign to the present action and to gain 
jurisdiction of parties over which this Court does not 
now have jurisdiction. Mr. Lee may pursue his alleged 
cause of action in a separate suit against any parties who 
may have committed unlawful acts against him. His mo­
tions to bring in additional parties and to file a counter­
claim are hereby denied.

Opinion and Order



31a

Opinion and Order 

Order

I t is  h e r e b y  o r d e r ed  that the South Carolina Commis­
sion of Forestry be enjoined and restrained from discrim­
inating against the plaintiffs and all other Negroes simil­
arly situated in using the State Parks of South Carolina 
solely because of their race.

I t is  f u r t h e r  o r d e r e d , that the State of South Caro­
lina and the South Carolina Forestry Commission be en­
joined and restrained from enforcing §§ 51-2.1, 51-2.2, 
51-2.3 and 51-2.4 of the South Carolina Code (1962).

I t is f u r t h e r  o r d e r ed  that this Order become effective 
sixty days from date.

J. Robert Martin, J r . 
United States District Judge

A  T rue Copy, A ttest.

T ho. A . Cauthen 
Clerk of U. S. District Court

East. Dist. So. Carolina

(Seal)

Greenville, S. C.

July 10, 1963.



32a

Notice of Appeal

(Filed: August 5, 1963)

Notice is hereby given that Davis Lee, defendant by 
intervention, above named, hereby appeals to the United 
States Court of Appeals for The Fourth Circuit from the 
Order and final judgment signed and issued by Judge J. 
Robert Martin in the above cause, July 10th, 1963.

Davis L ur

Defendant by Intervention— 
Appellant and Counsel 

407 Butler Street 
Anderson, South Carolina



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