Turner v. City of Memphis Jurisdictional Statement

    I n  t h e

OInurl of tlî  littlrJi %>UUb
October Term, 1960 

No.....................

J esse  T tjenee,
Appellant,

C ity  of M e m p h is , a Municipal Corporation Chartered 
Under the Laws of the State of Tennessee and D obbs 
H o uses, I nc., a Corporation Organized and Existing 
Under the Laws of the State of Tennessee, and W. S. 
H aveefibld , Manager of the Dobbs Houses, Inc., Eestau- 
rant in Memphis Municipal Airport,

Appellees.

APPEAL FEOM THE UNITED STATES DISTEICT COUET, WESTEEN 
DISTEICT, TENNESSEE, WESTEEN DIVISION

JURISDICTIONAL STATEMENT

R. B. SUGAEMON, J e.
588 Vance Avenue 
Memphis, Tennessee

Constance  B akbe  M otley 
10 Columbus Circle 
New York 19, N. Y.

T huegood M aeshall  
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellant



I N D E X

PAGE

Opinions Below ................... -....... -.....................................  2

Jurisdiction .......................................................................- 2

Statutes Involved ..............................................................  4

Question Presented ...........   7

Statement ...........     7

The Questions Are Substantial ................................-....  10

The Court below abused its discretion in denying 
injunctive relief .........     10

The Court below abused its discretion in applying 
the doctrine of abstention to this case ..............  11

Simultaneous Appeal Taken to Court of Appeals ....... 13

A p p e n d ix  A :

District Court’s Per Curiam Opinion................... .A1-A3

District Court’s Order .............   .A4-A5

A p p e n d ix  B :

Memphis Municipal Code, 1949, Vol. 1, §§151.26, 
151.27, 151.40 ......................................................... - B1

Memphis Municipal Code, 1949, Vol. 2, §§3044.29, 
3044.29(d) ...............................-......................-..... B2-B3



11

T able  of Cases

PAGE

Aaron v. Cooper, 261 F.2d 97 (8th Cir. 1958) ...............  10
Alabama Public Service Commission v. Southern Ey.

Co., 341 U.S. 341 (1951) .................... .........................11,12

Browder v. Gayle, 142 P. Supp. 707 (M.D. Ala. 1956),
aff’d 352 U.S. 903 .........................................................  13

Brown v. Board of Education of Topeka, 347 U.S. 483
(1954) ..............................................................................  12

Bryan v. Austin, 354 U.S. 933 (1957), 148 F. Supp. 563
(E.D. S.C. 1957) .....      3

Burford v. Sun Oil Co., 319 U.S. 315 (1943) ...............11,12
Burton v. Wilmington Parking Authority, No. 164,

Oct. Term 1960, decided April 17, 1961, -----
U.S. .......    10,12

Bush V. Orleans Parish School Board, 138 F. Supp.
336 (E.D. La. 1956), mandamus denied, 351 U.S. 948 
(1956) ..............................................................................  14

Chicago V. Atchison, Topeka & Santa Pe Ry. Co., 357
U.S. 77 (1958) ................................................................. 11

City of Greensboro v. Simkins, 246 F.2d 425 (4th Cir.
1957) .............................................................................. 10,11

City of Meridian v. Southern Bell Telephone, 358 U.S.
639 (1959) .....................................................................11,12

Clay V. Sun Insurance Co., 363 U.S. 207 (1960) ............11,12
Clemons v. Board of Education of Hillsboro, 228 F.2d

853 (6th Cir. 1956), cert, denied 350 U.S. 1006 .........  10
Coke V. City of Atlanta, 184 F. Supp. 579 (N.D. Ga.

1960) ................................................................................  10
County of Allegheny v. Frank Mashuda Co., 360 U.S.

185 (1959) ..........    11



U1

PAGE

Department of Conservation and Development v. Tate,
231 F.2d 615 (4th Cir. 1956) 10

Derrington v» Plnmmer, 240 F.2d 922 (5th Cir. 1956), 
cert, denied Casey v. Plummer, 353 U.S. 924..............  10

Ex parte Poresky, 290 U.S. 30 (1933) .....................— 14

Harrison v. N.A.A.C.P., 360 U.S. 167 (1959), 159 F.
Supp. 503 (E.D. Va. 1958) ....   3,4,9,11,12

Henry v. Greenville Airport Commission, 284 F.2d 631 
(4th Cir. 1960) ................................................................  10

Lawrence v. Hancock, 76 F. Supp. 1004 (S.D. W.Va.
1948) .......................................   10

Louisiana Power & Light Co. v. Thibodaux, 360 U.S.
25 (1959) ......................... -............................................. 11,12

Oklahoma Gas and Electric Co. v. Oklahoma Packing 
Company, 292 U.S. 386 (1934) ...............................-  15

Martin v. Creasy, 360 U.S. 219 (1959) ..........................  11
Muir V. Louisville Park Theatrical Ass’n, 347 U.S. 971, 

vacating and remanding 202 F.2d 275 (6th Cir. 
1953) ........................................................................ 10,12,14

N.A.A.C.P. V . Bennett, 360 U.S. 471 (1959) ..................  3,4

Orleans Parish School Board v. Bush, 268 F.2d 78 (5th 
Cir. 1959) ........................................................................  13

Phillips V . United States, 312 U.S. 246 (1941) ...........  14
Propper V. Clark, 337 U.S. 472 (1949) ..........................  11
Public Utilities Commission v. United States, 355 U.S.

534 (1958) ......................................................................  11



IV

PAGE

Eailroad Commission of Texas v. Pullman, 312 U.S. 496 
(1941) ................. .......................................................... 11,12

Spector Motor Service v. McLaughlin, 323 U.S. 101 
(1944) ..............................................................................  11

Stainback v. Mo Hock Ke Lok Po, 336 U.S. 368 ....... 14

The Vessel Tungus v. Skovgaard, 358 U.S. 588 (1959) .. 11

Union Tool Co. v. Wilson, 259 U.S. 107 (1922) ........... 10

S tatutes

Title 28, United States Code, §1253 ..........................— 3

Title 28, United States Code, §1343(3) ......................2, 8,13

Tennessee Code Ann., Vol. 9, §53-2120 ...................... 4, 8,12

Tennessee Code Ann., Vol. 9, §53-2121 ...........................4,12

Tennessee Code Ann., Vol. 11, §62-710...................... 6, 9,12

R egulatio ns

Department of Conservation of the State of Tennessee, 
Division of Hotel and Restaurant Inspection, Regu­
lation No. R-18(l). Approved June 18, 1952 .......... 4,8

O rdin ances

Memphis Municipal Code, 1949, Vol. 1, §§151.26, 151.27, 
151.40 ................................................................................  7

Memphis Municipal Code, 1949, Vol. 2, §§3044.29, 
3044.29(d) ........................................................................  6



I n  t h e

#uprj?m? OInurt of t̂at^a
October Term, 1960 

 ̂‘ ...................  No.................. ...

J esse  T tjenee,
Appellant,

-V -

CiTY OE M e m p h is , a Municipal Corporation Chartered 
Under the Laws of the State of Tennessee and D obbs 
H o uses, I nc., a Corporation Organized and Existing 
Under the Laws of the State of Tennessee, and W. S. 
H aveepield , Manager of the Dobbs Houses, Inc., Restau­
rant in Memphis Municipal Airport,

Appellees.

APPEAL FEOM THE UNITED STATES DISTEICT COUET, WESTEEN 
DISTEICT, TENNESSEE, WESTEEN DIVISION

JURISDICTIONAL STATEMENT

Appellant appeals from the judgment of the United 
States District Court, Western District of Tennessee, West­
ern Division, which denied, after notice and hearing, ap­
pellant’s prayer for injunction enjoining appellees from 
segregating Negroes in the Dobbs Houses Restaurant in 
the Memphis Municipal Airport. Appellant submits this 
statement demonstrating the jurisdiction of this Court upon 
this appeal and further demonstrating that the question 
presented is a substantial federal question.



Opinions Below

The per curiam opinion of the three-judge District Court, 
consisting of Sixth Circuit Judge John D. Martin, District 
Judge Marion S. Boyd, Western District Tennessee, West­
ern Division, and District Judge William E. Miller, Middle 
District Tennessee, Nashville Division, is not yet reported 
and is, therefore, attached hereto as Appendix A.

Jurisdiction

This suit was brought in the United States District Court, 
Western District Tennessee, Western Division, on April 1, 
1960 by appellant Turner on behalf of himself and other 
Negroes similarly situated. That Court’s jurisdiction was 
invoked pursuant to provisions of Title 28, United States 
Code, §1343(3). The relief sought was an injunction en­
joining the City of Memphis and its lessee, Dobbs Houses, 
from pursuing a policy, practice, custom and usage of 
segregating appellant, and other members of his class, in 
the use of certain airport facilities and with respect to 
service in the Dobbs Houses Restaurant located therein. 
Appellees’ answers admitted the segregation complained of 
and the leasing of the restaurant facility to Dobbs Houses 
but alleged that certain state statutes, a state agency reg­
ulation, and several city ordinances either authorized or 
required segregation in the airport’s restaurant and rest 
room facilities. Appellees alleged that unless and until 
these state statutes, regulation and ordinances were de­
clared unconstitutional, segregation would be required by 
them and prayed for the convening of a statutory three- 
judge court to hear and determine this cause. However, 
appellees also claimed that the restaurant operated by 
Dobbs Houses, although leased from the city, is operated 
“ as a jjrivate facility, to which the 14th Amendment



does not apply, and tlie operator has a legal right to en­
force any rules and policies which it deems advisable in 
regard to the seating of patrons, including the right to 
seat and serve patrons in separate areas because of race 
or color.” The District Court agreed with appellees that 
this, was a case for a three-judge court which was sub­
sequently convened. The per curiam opinion of that court 
—staying this cause pending suit for declaratory judg­
ment by appellant in the state courts for construction of 
the statutes, regulation and ordinances involved—was ren­
dered January 23, 1961. The order to this effect was en­
tered on February 10, 1961. Notice of appeal was filed in 
the District Court on March 1, 1961. Jurisdiction of this 
Court to review this cause by direct appeal is conferred 
by Title 28, United States Code, §1253 which provides as 
follows:

Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an in­
terlocutory or permanent injunction in any civil ac­
tion, suit or proceeding required by any Act of Con­
gress to be heard and determined by a district court 
of three judges.

The following decisions sustain the jurisdiction of this 
Court to review the judgment on direct appeal: NAACP  v. 
Bennett, 360 U.S. 471 (1959) ■, Harrison v. NAACP, 360 U.S. 
167 (1959) and Bryan v. Austin, 354 U.S. 933 (1957). In 
the case of Bryan v. Austin, supra, the District Court 
rendered a decision, similar to the decision below, invoking 
the doctrine of equitable abstention in a case involving the 
constitutionality of a South Carolina statute denying public 
employment to NAACP members (E.D. S.C. 1957, 148 P. 
Supp. 563). However, on direct appeal to this Court, this 
Court vacated the order below on the ground that the case



had become moot, the statute sought to be enjoined having 
been repealed after the decision of the District Court in 
that case. In the case of NAACP  v. Bennett, in which the 
constitutionality of an Arkansas statute affecting the 
NAACP was attacked, the District Court automatically 
remanded the case to the state court for construction of 
the statute (unreported). Upon appeal to this Court, the 
judgment of the District Court was vacated and the case 
remanded for consideration in the light of Harrison v. 
NAACP, supra. In the Harrison case, a direct appeal was 
taken to this Court from a judgment holding three Virginia 
statutes unconstitutional (E.D. Va. 1958, 159 P.Supp. 503). 
Upon appeal to this Court, the judgment was vacated and 
the case remanded with instruction to retain jurisdiction 
but to afford appellees a reasonable opportunity to bring 
appropriate proceedings in Virginia courts for construc­
tion of the statutes held unconstitutional. The exercise of 
jurisdiction by this Court in these three cases sustains the 
exercise of jurisdiction by this Court in this case.

Statutes Involved

Appellant did not rely upon or seek to enjoin the en­
forcement of any state • statute, state regulation or city 
ordinance in his complaint.

In the answers filed, appellees relied upon a state reg­
ulation, promulgated by the Division of Hotel and Restau­
rant Inspection, Department of Conservation of the State 
of Tennessee, Regulation No. R-18(l), which provides:

Restaurants catering to both white and negro patrons 
should be arranged so that each race is properly segre­
gated. Segregation will be considered proper where 
each race shall have sejDarate entrances and separate 
facilities of every kind necessary to prevent patrons



of the different races coming in contact with the other 
in entering, being served, or at any other time until 
they leave the premises. (Tennessee Laws, Eules and 
Eegulations for Eestaurants, Department of Conserva­
tion, Division of Hotel and Restaurant Inspection. Ap­
proved June 18, 1952.)

This regulation was adopted pursuant to the provisions of 
§53-2121 of the Tennessee Code Ann., Vol. 9, which provides 
as follows:

Rules and regulations authorized—Arbitration of in­
consistencies.—The division is hereby authorized to 
make such rules and regulations, including a code of 
sanitation, as may be necessary to carry out the pur­
poses of §§53-2101-53-2121 and to protect the public 
health and safety. In any instances where there is 
an inconsistency as between the requirements of the 
division and those of a local county, or city, health 
officer, such inconsistency is to be arbitrated by a three 
(3) man board consisting of the director, the local 
health officer concerned, and a third member to be 
chosen by these two.

Appellees claimed that violation of the regulation is 
declared to be a misdemeanor, punishable by fine, by 
§53-2120, Tennessee Code Ann., Vol. 9, which provides as 
follows:

Violation of regulations or provisions penalized.— 
Every owner, manager, proprietor, agent, lessee, or 
other person in charge of conducting any hotel or res­
taurant, who shall fail or refuse to comply with any 
of the provisions of §§53-2101-53-2121 or with the 
rules and regulations promulgated by the division, 
shall be deemed guilty of a misdemeanor, and shall be 
fined not less than ten dollars ($10.00) nor more than



one hundred dollars ($100) for each offense, and each 
day after sufficient notice has been given shall con­
stitute a separate offense.

By amendment to their answer, appellee Dobbs Houses 
also relied upon §62-710, Tennessee Code Ann., Vol. 11, 
which provides as follows:

Right of owners to exclude persons from places of 
public accommodation.—The rule of the common law 
giving a right of action to any person excluded from 
any hotel, or public means of transportation, or place 
of amusement, is abrogated; and no keeper of any 
hotel, or pnblic honse, or carrier of passengers for 
hire (except railways, street, interurban, and com­
mercial) or conductors, drivers, or employees of such 
carrier or keeper, shall be bound, or under any obliga­
tion to entertain, carry, or admit any person whom he 
shall, for any reason whatever, choose not to entertain, 
carry, or admit to his house, hotel, vehicle, or means 
of transportation, or place of amusement; nor shall any 
right exist in favor of any such person so refused ad­
mission ; the right of snch keepers of hotels and public 
houses, carriers of passengers, and keepers of places 
of amusement and their employees to control the ac­
cess and admission or exclusion of persons to or from 
their public houses, means of transportation, and 
places of amusement, to be as complete as that of 
any private person over his private house, vehicle, or 
private theater, or places of amusement for his family.

The answer of appellee. City of Memphis, relied upon 
a city ordinance requiring segregation in rest room facili- 
ties.‘ As the basis for enforcing this ordinance, the City 
also cited ordinances extending the police power of the

^Memphis Municipal Code, 1949, Vol. 2, §§3044-29 and 3044- 
29(d).



City to the airport,^ prohibiting disorderly conduct at the 
airport,® and providing for the removal of any person 
using the airport in violation of the law relating thereto.* 
These ordinances are set forth in Appendix B. Appellant 
is informed that the rest rooms in the Memphis Municipal 
Airport are no longer segregated. The only facility still 
segregated is the Dobbs Houses Restaurant.

Question Presented

Whether the three-judge court below, in a case involving 
segregation of Negroes by the lessee of a municipally- 
owned airport restaurant, abused its discretion in refusing 
to issue a permanent injunction enjoining such segrega­
tion and in postponing exercise of its jurisdiction pending 
suit for declaratory judgment by appellant in the state 
courts for interpretation of statutes, regulation and ordi­
nances pleaded by appellees.

Statement

The facts in this case are not disputed. The appellant, 
Jesse Turner, is an adult Negro citizen of the United 
States and of the State of Tennessee, residing in Memphis, 
Tennessee. He is the executive vice-president and cashier 
of the Tri-State Bank in Memphis. He is also an elected 
official, holding the position of member of the Executive 
Committee of the Shelby County Democratic Party. In con­
nection with his work, he uses the Memphis Airport ap­
proximately three or four times a year. On April 28, 1959, 
he and two business associates went into the main dining 
room of the Dobbs Houses Restaurant in the airport. Upon 
entering the restaurant he was stopped by a hostess and

® Ibid., Vol. 1, §151.26. 
 ̂Ibid., Vol. 1, §151.27. 

* Ibid., Vol. 1, §151.40.



8

directed by her to a small room reserved for Negroes ad­
jacent to the main dining room. Mr. Turner requested 
that he be allowed to see the manager. Appellant was 
addressed by appellee Haverfield who identified himself as 
the manager and said that Negroes are not served in the 
main dining room but in a separate area reserved for them. 
Appellant declined the invitation to be served in the small 
room reserved for Negroes. Thereafter, on October 29, 
1959, upon returning from Atlanta as a passenger on East­
ern Air Lines, appellant again requested service in the 
main dining room of the Dobbs Houses Restaurant. Again 
he was informed by the manager, Mr. Haverfield, that 
Negroes could not be served in the main dining room. 
When he asked why he could not be served in the main 
eating facility, he was told by the manager that the state 
law prevented it.

This suit was commenced by appellant on April 1, 1960 
to restrain the enforcement of this segregation. Jurisdic­
tion was invoked pursuant to the provisions of Title 28, 
United States Code, §1343(3). The complaint did not rely 
upon or seek to enjoin the enforcement of any state statute, 
state regulation or city ordinance. On April 21, 1960, all 
appellees filed answers in which they admitted all the seg­
regation complained of and the leasing of the restaurant 
to Dobbs Houses but israyed the convening of a three-judge 
court on the ground that there had been promulgated a 
valid regulation of the Division of Hotel and Restaurant 
Inspection, Department of Conservation of the State of 
Tennessee. Regulation No. R-81(l), and claimed that a 
violation of the regulation would constitute a misdemeanor 
punishable by fine under p3-2120. Tennessee Code Anno­
tated. Appellees aUeged that, unless and until the regula­
tion shall have been declared unconstitutional, their duty 
is to object to desegregation of the races in the airport 
restaurant, since such desegregation would be a violation



9

of the laws of the State of Tennessee and a violation of 
Paragraph 20 of the lease between the City and Dobbs 
Houses requiring the latter to abide by all state laws.

Appellees also claimed that operation of the restaurant 
is a private facility to which the 14th Amendment does not 
apply, and that Dobbs Houses has the legal right to enforce 
any rules and policies which it seems desirable in regard 
to seating patrons, including segregation on account of race. 
Appellee Dobbs Houses also relied upon §62-710 of the 
Tennessee Code granting owners the right to exclude per­
sons from certain places of public accommodation.

There is no question that the purpose of the lease of the 
restaurant facility to Dobbs Houses was to provide food 
service for airline passengers and the members of the public 
using the airport.

On May 18, 1960, appellant filed a motion for summary 
judgment which came on for hearing on June 3, 1960. The 
single-judge District Court hearing the motion ruled that 
it could not act on the motion because the case was one for 
a three-judge court. Thereafter, on June 6, 1960 appellant 
renewed his motion for summary judgment. On June 9, 
1960, an order was entered by Chief Judge McAllister of 
the Sixth Circuit designating the three members of the 
court below. The case came to trial before that court on 
November 9, 1960. Subsequently, on January 23, 1961 a 
per curiam opinion was rendered in which the court, relying 
upon Harrison v. NAACP, 360 U.S. 167 (1959), ruled that 
“in the light of the Harrison case, with its clear enunciation 
of the doctrine of abstention in cases of this type, we hold 
that the plaintiff’s cause herein shall be stayed joending the 
prosecution of a proper declaratory judgment suit to be 
brought by the plaintiff in the courts of Tennessee for the 
purpose of obtaining an interpretation of the state statutes, 
regulations and city ordinances under consideration herein.”



10

The Questions Are Substantial

The Court below abused its discretion in denying 
injunctive relief.

The right of Negro residents to service, without discrim­
ination against them because of race, in publicly owned fa­
cilities leased to private persons for operation for the 
benefit of the public is a right guaranteed by the equal 
protection clause of the Fourteenth Amendment to the Con­
stitution of the United States. Burton v. Wilmington Park­
ing Authority, No. 164, Oct. Term 1960, decided April 17,
1 9 6 1  ̂ __ U.S. ----- ; Muir v. Louisville Park Theatrical
Ass’n, 347 U.S. 971, vacating and remanding 202 F.2d 275 
(6th Cir. 1953). This right has been upheld by the Courts 
of Appeal and the District Courts. Aaron v. Cooper, 261 
F.2d 97 (8th Cir. 1958); City of Greensboro v. Simkins, 
246 F.2d 425 (4th Cir. 1957); Derrington v. Plummer, 240 
F.2d 922 (5th Cir. 1956); cert, denied Casey v. Plummer, 
353 U.S. 924; Department of Conservation v. Tate, 231 
F.2d 615 (4th Cir. 1956); Coke v. City of Atlanta, 184 F. 
Supp. 579 (N.D. Ga. 1960); Lawrence v. Hancock, 76 F. 
Supp. 1004 (S.D. W.Va. 1948).

There was no dispute as to the facts in this case. All 
appellees admitted that Negroes are segregated in the 
Dobbs Houses Restaurant. The leasing was also admitted. 
The lease specifically requires Dobbs Houses to serve the 
public food at prices prevailing in Memphis and to make 
soft drinks and other items available to the public.

Failure to apply well settled principles of law to undis­
puted facts is an abuse of discretion in law. Union Tool Co. 
V. Wilson, 259 U.S. 107 (1922); Henry v. Greenville Airport 
Commission, 284 F. 2d 631 (4th Cir. 1960); Clemons v. 
Board of Education of Hillsboro, 228 F. 2d 853 (6th Cir.



11

1956), cert. den. 350 U.8. 1006. Consequently, the court 
below abused its discretion in failing to issue a permanent 
injunction as prayed,

The Court below abused its discretion in applying the 
doctrine of abstention to this case.

The doctrine of abstention which was invoked by the 
court below has been held by this Court to be a “extraordi­
nary and narrow exception to the duty of a District Court 
to adjudicate a controversy properly before it.” County 
of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188 
(1959). See also Propper v. Clark, 337 U.S. 472 (1949); 
Public Utilities Commission v. United States, 355 U.S. 534 
(1958); Chicago v. Atchison, Topeka d  Santa Fe R. Co., 357 
U.S. 77 (1958); The Vessel Tungus v. Skovgaard, 358 U.S. 
588 (1959); NAACP  v. Bennett, 360 U.S. 471 (1959). I t is a 
doctrine which involves an exercise of discretion in “ex­
ceptional circumstances” which certainly are not present 
in the instant case. County of Allegheny v. Frank Mashuda 
Co., supra, at 188-189, but which were present and identified 
in those cases to which the doctrine has been applied. Rail­
road Commission of Texas v. Pullman, 312 U.S. 496 (1941) ; 
Burford v. Sun Oil Co., 319 U.S. 315 (1943); Spector Motor 
Service v. McLaughlin, 323 U.S. 101 (1944); Alabama Public 
Service Commission v. Southern By. Co., 341 U.S. 341 
(1951); City of Meridian v. Southern Bell Telephone, 358 
U.S- 639 (1959); Louisiana Power and Light Co. v. Thibo- 
daux, 360 U.S. 25 (1959); Harrison v. N.A.A.C.P., 360 U.S. 
167 (1959); Martin v. Creasy, 360 U.S. 219 (1959); Clay v. 
Sun Insurance Go.,363 V .^.201 (1960).

In the Pullman case this Court made clear that the doc­
trine is applicable to those cases where “constitutional ad­
judication plainly can be avoided if a definitive ruling on 
the state issue would terminate the controversy” (at 498),



12

pointing out that, “Federal courts should avoid a tentative 
answer which may be displaced by a state adjudication” 
(at 500). This test was employed in the Spector case, supra, 
the Alabama Public Service Commission case, supra, in 
City of Meridian v. Southern Bell Telephone, supra, Harri­
son V. N.A.A.C.P., supra, and Clay v. Sun Insurance Co., 
supra, when the doctrine was applied.

Here it is plain that a definitive ruling on the state law 
relied on by Dobbs Houses (62-710 and 53-2120) and the 
statute (53-2121) and regulation (No. E-18(l)) relied on 
by all appellees would not terminate the controversy as to 
whether the lessee here is subject to the Fourteenth Amend­
ment.

In  the Pullman case this Court also ruled that the absten­
tion doctrine should be applied by District Courts where 
its invocation would avoid “needless friction with state 
policies” (at 500). This criterion was used to sustain ap­
plication of the doctrine in Burford v. Sun Oil Co., supra, 
where only domestic policy issues were involved, in Ala­
bama Public Service Commission v. Southern By., supra, 
involving predominantly local factors, and in Louisiana 
Light and Power Co. v. Thibodaux, supra, where the issue 
touched upon the relationship of City and State.

Again, it is too plain to require argument that this case 
does not fall into this latter category. The state policy of 
segregation in a public airport restaurant is constitutionally 
void, not only as to the state, but as to its lessee, in this 
instance. Burton v. Wilmington Parking Authority, supra; 
Muri V. Louisville Park Theatrical Ass’n, supra; Brown v .  

Board of Education of Topeka, 347 U.S. 483 (1954). The 
issuance of an injunction here would have upheld the Fed­
eral constitutional policy so often reaffirmed by this Court.



13

As the District Court said in Browder v. Gayle (M.D. 
Ala. 1956), 142 F. Supp. 707, aff’d 352 U.S. 903, “The short 
answer is that doctrine has no application where the plain­
tiffs complain that they are being deprived of constitutional 
civil rights for the protection of which the Federal courts 
have a responsibility as heavy as that which rests on the 
State courts” (at 713). And, “No cause for abstention by 
the federal court is shown merely because a suit is brought 
against state officials whose conduct may be affected by 
untested state legislation. I t  is only when the federal court 
is called on to interpret such state statutes or rule on its 
constitutionality that the rule applies.” Orleans Parish 
School Board v. Bush, 268 F.2d 78, 80 (5th Cir. 1959).

Appellant, therefore, believes that the questions pre­
sented are substantial and that they are of public impor­
tance.

Simultaneous Appeal Taken to Court of Appeals

Appellant invoked the jurisdiction of the District Court 
pursuant to Title 28, United States Code, §1343(3) alleging 
that appellees, acting under color of the laws of the State 
of Tennessee and ordinances of the City of Memphis, were 
pursuing a policy, practice, custom and usage of segregating 
Negroes and white persons in the Dobbs Houses Restaurant 
in the Airport. Appellant did not rely upon or seek to have 
the District Court enjoin the enforcement of any specific 
state statute or regulation or city ordinance. Appellant’s 
theory was that the City as well as its lessee of municipal 
property, which is to be operated for the benefit of the 
public, are clearly subject to the prohibitions of the Four­
teenth Amendment—state statutes, regulations, or city ordi­
nances to the contrary, notwithstanding, same being clearly 
unconstitutional in the light of prior recent decisions of this



14

Court. Muir v. Louisville Parle Theatrical Ass’n, supra. 
Consequently, appellant conceived that an injunction could 
be entered by the District Court enjoining Dobbs Houses 
and the City of Memphis from segregating Negroes without 
bringing about any sudden doom of state-wide policy about 
which there might he some genuine questions as to consti­
tutionality. E x parte Poreshy, 290 IJ.S. 30 (1933); Bush 
V. Orleans Parish School Board, 138 F. Supp. 336 (E.D. 
La. 1956), mandamus denied, 351 U.S. 948 (1956).

Subsequently, a three-judge court was convened and the 
case came on for trial after due notice. Thereafter, the 
court applied the abstention doctrine. Since appellant be­
lieves that there is some doubt as to whether this case is 
properly one for a three-judge court, appellant has taken 
a simultaneous appeal to the Court of Appeals for the Sixth 
Circuit as a precaution against the possibility that this 
Court might find that a three-judge court was improperly 
convened and the appeal should have been taken to the 
Court of Appeals from the District Court’s application of 
the abstention doctrine. If this Court were to so rule, the 
time within which to appeal to the Court of Appeals would 
have expired. Appellant is preparing to docket an appeal 
in that Court by May 25, 1961 (the time having been duly 
extended by order of Judge Boyd). Appellant will then 
move the Sixth Circuit for an order staying all proceedings 
in that appeal pending this Court’s disposition of the instant 
appeal. Stainbach v. Mo Hoch Ke Loh Po, 336 IJ.S. 368, 
380-381. See also, Phillips v. United States, 312 U.S. 346,



15

355 (1941) and OMahoma Gas and Electric Co. v. Oklahoma 
Packing Company, 292 U.S. 386 (1934).

Respectfully submitted,

R. B. SUGAEMOIT, J b .
588 Vance Avenue 
Memphis, Tennessee

CoNSTAisroE B akeb  M otley 
10 Columbus Circle 
New York 19, N. Y.

T hxjbgood M aeshall  
10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellant



A1

APPENDIX A

IN THE DISTRICT COURT OF THE UNITED STATES 

P oe t h e  W e st e e n  D istbict  op T e n n e sse e  

W e st e e n  D ivision

Civil Action No. 3934

J esse  T xjenee,
Plaintiff,

—vs.-

CiTY OP M e m p h is , D obbs H o uses, I n c ., an d  
W . S. H avbepield ,

Defendants.

B e f o r e
M a e t in , Circuit Judge,

B oth a n d  M iix e b , District Judges.

P e e  CuEiAiL This is a .suit by the plaintiff, w h o  is a Negro 
residing in Memphis, Tennessee, on behalf of himself and 
others similarly sitnated, asking injnnetive relief against 
the defendants, City of Memphis, Dobbs Houses, Inc., and 
the Manager of the latter concern’s restaurant in the 
Memphis Municipal Airport.

The plaintiff seeks under Title 42, U.S.C.A., Sections 1981 
and 1983, to secure certain rights, privileges and immuni­
ties guaranteed by the Constitution and laws of the United 
States. More particularly, the plaintiff is seeking to per­
manently enjoin the defendants from continuing to operate 
the eating and rest room facilities located in the airport 
aforesaid on a racially segregated basis.



A2

Plaintiff claims that he was denied service in the main 
dining room of the Dobbs Houses Restaurant at the airport 
because of his race and color, pursuant to the policy, prac­
tice, custom and usage of the defendants.

The defendants contend that there are certain statutes 
and regulations of the State of Tennessee and ordinances 
of the City of Memphis which require that separate facili­
ties for the Negro and White races be maintained at the 
Memphis Municipal Airport. In this connection, they con­
tend that this Court should apply the principle of absten­
tion, thereby giving the Courts of Tennessee an opportunitj^ 
to declare the rights of the plaintiff thereunder.

In Harrison v. NAACP, 360 U.S. 167 the United States 
Supreme Court, in speaking on the doctrine of abstention 
of federal courts to permit action by the state courts, stated 
on page 176: “This now well-established procedure is aimed 
at the avoidance of unnecessary interference by the federal 
courts with proper and validly administered state concerns, 
a course so essential to the balanced working of our federal 
system. To minimize the possibility of such interference 
a ‘Scrupulous regard for the rightful independence of state 
governments . . . should at all times actuate the federal 
courts,’ Matthews v. Rodgers, 284 U.S. 521, 525, as their 
contribution . . .  in furthering the harmonious relation 
between state and federal authority . . . ’ Railroad Comm’n. 
V. Pullman Co., 312 U.S. 496, 501. In the service of this 
doctrine, which this Court has applied in many different con­
texts, no principle has found more consistent or clear ex­
pression than that the federal courts should not adjudicate 
the constitutionality of state enactments fairly open to 
interpretation until the state courts have been afforded a 
reasonable opportunity to pass upon them. (Citing numer­
ous cases). This principle does not, of course, involve the 
abdication of federal jurisdiction, but only the postpone­
ment of its exercise; it serves the policy of comity inherent



A3

in the doctrine of abstention; and it spares the federal 
courts of unnecessary constitutional adjudication.”

Thus, in the light of the Harrison case, with its clear 
enunciation of the doctrine of abstention in cases of this 
type, we hold that the plaintiff’s cause herein shall he 
stayed pending the prosecution of a proper declaratory 
judgment suit to be brought by the plaintiff in the courts 
of Tennessee for the purpose of obtaining an interpretation 
of the state statutes, regulations and city ordinances under 
consideration herein.

s /  J o h n  D. M aetin  
Circuit Judge

s /  M arion  S. B oyd 
District Judge

s /  W illia m  G. M iller  
District Judge



A4

Order

IN THE UNITED STATES DISTRICT COURT 

W estern" D iv isio n  of T e n n e sse e  

W e st e r n  D istrict

Civil Action No. 3934

J esse  T u r n e r ,

Plaintiff,

-vs.-

CiTY OF M e m p h is , et al.,

Defendants.

This Cause, came on to be heard on the 9th day of 
November, 1960, upon the pleadings, testimonies, briefs 
and arguments of the parties; and it appearing to the Court 
for the reason set forth in opinion heretofore filed that 
said Cause should be held in abeyance pending the Declara­
tory Judgment suit to he brought by Plaintiffs in the Ten­
nessee Courts seeking an interpretation of the State stat­
utes under consideration.

I t I s , T h erefo re , Ordered, A djudged  a n d  D ecreed , that 
said Cause be and the same is hereby held in abeyance



A 5

pending the filing of such suit and an interpretation of the 
State statutes involved herein.

J o h n  D. M a etin  
U. 8. Circuit Judge

M aeion  S . B oyd 
District Judge

W illia m  E. M il l e e  
District Judge

A ppeoved :

R . B. S ugaemon

Attorney for Plaintiff

F. B. G ia n o tti, J e.
F ea n k

Attorneys for Defendants.



B1

APPENDIX B

Memphis Municipal Code, 1949, Vol. 1.

Section 151.26. Police Powers. All the powers of 
the police officers of the city, derived from whatever 
source, are hereby extended to the area embraced 
within the Memphis municipal airport as the same now 
exists, or as the same may he hereafter established.

Section 151.27. Disorderly, etc., conduct. No person 
shall commit any disorderly, obscene, indecent or un­
lawful act, or commit any nuisance on the airport.

Section 151.40. Violation of regulations; misdemean­
ors. Any person operating or handling any vehicle, 
equipment, or apparatus or using the airport or any 
of its facilities in violation of this chapter, or refusing 
to comply herewith, may be removed from the airport, 
and deprived of and refused the further use of the air­
port and its facilities for such length of time as may be 
determined by the airport manager.

Any offense declared to be a misdemeanor by ordi­
nance of the city shall be a misdemeanor if committed 
on the Memphis municipal airport, and shall he punish­
able as provided by the ordinances of the city pertain­
ing to such violation.

Memphis Municipal Code, 1949, Vol. 2.

Section 3044.29. General requirements for water 
closets, urinals and lavatories in all buildings other 
than one- and two-family dwellings and multi-family 
dwelling units. In all buildings other than one- and two- 
family dwellings and multi-family dwelling units, there 
shall he one or more water closets in conformity with



B2

the general requirements of this section, together with 
the required number of urinals and lavatories accord­
ing to the occupancy, as provided in the following sec­
tions. The lavatories shall be in an ante-room or com­
partment when more than one commode or urinal is 
required, or provided. The space provided for each 
fixture and other details shall be as required in Section 
3044.27.

(d) Separate facilities required for ivhite and black 
races and for both sexes. Where buildings are used 
by both white and black races, separate facilities shall 
be provided for each race, and separate facilities shall 
be provided for both sexes of each race, where both 
men and women use any such building.

(e) Proper signs to be affixed. Proper signs shall 
be affixed on water closets indicating those provided for 
each race and for each of the sexes, in all buildings or 
places where such separate facilities are required.



sa