Department of Conservation and Development v. Tate Petition for Writ of Certiorari to the US Court of Appeals for the Fourth Circuit

    In the

Supreme Court of the United States
October Term, 1956

No.

D EPARTM EN T OF CON SERVATION  AN D 
DEVELOPM EN T, D IVISIO N  OF PARKS, COM­
M O N W E A LTH  OF VIRG IN IA, RA YM O N D  V. 

LONG, RAN DO LPH  ODELL, J. LIN DSEY, 
PH ILLIP  ARM STRONG, et al.,

Petitioners
v.

L A V IN IA  G. TATE, SAM U EL E. ROBINSON, 
LEON A. W O OD H O U SE and OTIS B. W A TTS,

Respondents
| /VI' ? * *  | _______________________

Petition for Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

J. L indsay A lmond, Jr.
Supreme Court Building 
Richmond, Virginia

Attorney General o f Virginia
H enry T. W ickham

1407 State-Planters Bank Bldg. 
Richmond, Virginia 

Special Assistant
Attorneys for Petitioners



TABLE OF C O N TE N TS

O p in io n s  of C ourts B e l o w ................. - ......................... ............................  2

S t a t e m e n t  of J u risdiction  ....................................................................... 2

Q u estion s  P r e s e n t e d .........................................    2

T h e  C o n s t it u t io n a l  P rovisions a n d  S tatu tes  I n v o l v e d .......  3

S t a t e m e n t  of t h e  C a s e ................................................................................  4

A r g u m e n t  ..................................................................................   8

I. The Action of the District Court Was Premature for It Has 
No Authority to Dictate the Provisions, or the Operations 
of, a Lease That May Be Executed by the State at Some 
Future T im e................................................................................  8

II. State Action Under the Fourteenth Amendment...................  12

A ppe n d ix  :

I. Opinion of Court of Appeals for Fourth Circuit.......  App. 1

II. Final Decree of District C ourt................................... . App, 3

TABLE OF C IT A T IO N S

Cases

Barney v. City of New York, 193 U. S. 430 (1904) ........................  13

Barrows v. Jackson, 346 U. S. 249 (1953) ......................................  13

Page

Blease v. Safety Transit Co., 50 F. (2d) 852, 856 (4th Cir. 1931) .. 9



Brunswick v. Elliott, 103 F. (2d) 746 (D. C. App. 1939) ............ 9

Civil Rights Cases, 109 U. S. 3, 11 (1883) .................................. 12

Connecticut v. Massachusetts, 282 U. S. 660, 674 (1931) .............. 9

Culver v. City of Warren, 83 N. E. (2d) 82 (Ohio, 1948) ............ 14

Dorsey v. Stuyvesant Town Corporation, 229 N. Y. 512, 87 N. E. 
(2d) 541 (1949), cert, denied, 339 U. S. 981 (1950) .............. 13

Irwin v. Dixon, 50 U. S. 10 (1850) .................................................  9

Kerr v. Enoch Pratt Free Library of Baltimore City, 149 F. (2d)
212 (4th Cir. 1945) ........................................................................ 14

King v. Buskirk, 78 F. 233, 235 (4th Cir. 1897) ..... ........................  9

Lawrence v. Hancock, 76 F. Supp. 1004 (D.C.S.D. W . Va. 
1948) ................................................................................................. 14

Michael v. Cockerall, 161 F. (2d) 163, 165 (4th Cir. 1947) .......... 9

Missouri, ex rel. Gaines v. Canada, 305 U. S. 337 (1938) ...........  12

Norris v. Mayor and City Council of Baltimore, 78 F. Supp. 451 
(D. Md. 1948) ................................................................................  13

Raymond v. Chicago Traction Co., 207 U. S. 20 (1907) ............... 13

Rice v. Sioux City Memorial Cemetery, 349 U. S. 70 (1955) .......  13

Shelley v. Kraemer, 334 U. S. 1 (1948) ............................................. 12

Snowden v. Hughes, 321 U. S. 1 (1943) ..........................................  13

Terry v. Adams, 345 U. S. 461 (1953) ............................................. 13

Page



Page

Truly v. Wanzer, 46 U. S. 141, 142-143 (1847) ..............................  9

United Public Workers v. Mitchell, 330 U. S. 75, 89-90 (1947) .... 9

U. S. v. Appalachian Elec. Power Co., 107 F. (2d) 769, 790 (4th 
Cir. 1939) ........................................................................................  9

U. S. v. Williams, 341 U. S. 70, 77 (1951) ....................................... 12

Other Authorities

Code of Virginia (1950) :
Section 10-21.1 ............................................................................  2, 11

Constitution of United States:
Fourteenth Amendment .................................................................... 3

51 C. J. S., Landlord and Tenant:
Section 2, p. 510................................................................................  10

11 M. J. Virginia and West Virginia, Landlord and Tenant:
Section 29, p. 684 ............................................................................ 10

United States Code:
Title 28, Section 1254 .....................................................................  2
Title 28, Section 1343 ........................................................................ 8
Title 28, Section 2201 ........................................................................  8
Title 28, Section 2202 ........................................................................ 8



In the

Supreme Court of the United States
October Term, 1956

No.

D EPARTM EN T OF CO N SERVATION  AN D 
DEVELOPM EN T, D IVISIO N  OF PARKS, COM­
M O N W EALTH  OF VIRG IN IA, RAYM O N D  V. 

LONG, RAN D O LPH  ODELL, J. LINDSEY, 
PH ILLIP ARM STRONG, et a l .,

Petitioners

L A V IN IA  G. TATE, SAM U EL E. ROBINSON, 
LEON A. W O OD H O U SE an d  OTIS B. W A TTS,

Respondents

Petition for Writ of Certiorari to the United States 
Court of Appeals for the Fourth Circuit

To the Honorable the Chief Justice and the Associate 
Justices of the Supreme Court o f the United States:

Your petitioners, Department of Conservation and De­
velopment of the Commonwealth of Virginia, et al., respect­
fully pray that a writ of certiorari be issued out of and under 
the seal of the Court to review the decision of the United 
States Court of Appeals for the Fourth Circuit hereinafter 
set forth and represent as follows:



2

O P IN IO N S OF C O U R T S BELO W

The opinion of the Court of Appeals is found as Depart­
ment of Conservation and Development v. Tate, 231 F. (2d) 
615, and is printed as Appendix I to this petition.

The opinion of the District Court for the Eastern District 
of Virginia, at Norfolk, is found as Tate v. Department of 
Conservation and Development, 133 F. Supp. 53, and is 
printed as Appendix II of “ Brief and Appendix on Behalf 
of Appellants,”  which is made a part of the record in this 
case in accordance with Paragraph 4 of Rule 21 of this 
Court. In accordance with Rule 23, paragraph l ( i )  of this 
Court, it is not reprinted here.

ST A T E M E N T  OF JU R ISD IC TIO N

The final decree of the District Court for the Eastern 
District of Virginia, at Norfolk, was entered on October 6, 
1955, and the Court of Appeals for the Fourth Circuit 
affirmed said decree on April 9, 1956.

The jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1254 (June 25, 1948, c. 646, 
62 Stat. 928).

Q U EST IO N S PRESENTED

I .

Were the respondents entitled to injunctive relief with 
respect to future actions of the State and an unknown lessee 
when there had been no equitable or legal rights of the 
respondents threatened thereby ?

II.

Does the Fourteenth Amendment to the Constitution of



3

the United States require a State, when leasing its property, 
to provide in the lease, or otherwise, that the lessee must not 
discriminate against the members of any race?

III.

Do independent actions of a lessee fall within the “ State 
action” prohibitions of the Fourteenth Amendment?

TH E C O N S T IT U T IO N A L  PR O VISIO N S AN D  
STA TU TES IN V O L V E D

The pertinent part of the Fourteenth Amendment reads 
as follows:

“ Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the state where­
in they reside. No state shall make or enforce any law 
which shall abridge the privileges or immunities of 
citizens of the United States; nor shall any State de­
prive any person of life, liberty, or property, without 
due process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.”

Section 10-21.1 of the Code of Virginia, as amended 
(1954 Cumulative Supp., Vol. 3, p. 14), reads as follows:

“ The Director is hereby authorized and empowered, 
subject to the consent and approval of the Governor, to 
convey, lease or demise to any responsible individual, 
organization, association or corporation for such con­
sideration and on such terms as the Board may pre­
scribe, by proper deed or other appropriate instrument 
signed and executed by the Director, in the name of the 
Commonwealth, any lands or other properties held for 
general recreational or other public purposes by the 
Commonwealth, for the Department, or over which it



4

has supervision and control, or any part or parts there­
of, or right or interest therein or privilege with respect 
thereto. The Governor is also hereby authorized and 
empowered to direct the discontinuance of the opera-- 
tion of any or all State parks when in his judgment the 
public interest so requires.

“ (3 ) Any such conveyance, lease or grant herein 
authorized shall be subject to such further provisions, 
conditions, restrictions and reservations as may be ap­
proved by the Governor and prescribed by the Direc­
tor.”

ST A T E M E N T  OF TH E CASE

The case below came on to be heard on April 26, 1955, 
and again on June 29, 1955, upon the complaint and amend­
ed and supplemental complaint of the respondents for de­
claratory judgment and a preliminary and permanent in­
junction and answer of the petitioners. The respondents 
prayed that the petitioners, their lessees, agents and successors 
in office be restrained from denying them and others simi­
larly situated, the use and enjoyment of the Seashore State 
Park on account of race and color.

It was stipulated and conceded by counsel for the peti­
tioners that the Seashore State Park, located in Princess 
Anne County, Virginia, is a state park maintained and 
operated as part of the recreational facilities under the 
supervision and control o f the Department of Conservation 
and Development of the Commonwealth of Virginia, that 
the said Park is supported by public funds and is the only 
state park operated by the petitioners in Princess Anne 
County, Virginia.

It was further conceded by counsel that the respondents 
sought the use of the recreational facilities of the aforesaid 
Seashore State Park and that they were denied admission 
thereto solely because they were members of the Negro race.



5

Furthermore, the petitioners, in denying the respondents 
admission to Seashore State Park, admittedly violated the 
rights of the appellees guaranteed by the Fourteenth Amend­
ment of the United States Constitution, as that amendment 
has recently been construed by this Court and the Court of 
Appeals for the Fourth Circuit.

On July 7, 1955, the District Court rendered its opinion, 
and on October 6, 1955, a final decree was entered enjoining 
not only the petitioners, but also unknown lessees of the 
petitioners. The District Court further ordered that if the 
Seashore State Park were leased, “ the lease must not, di­
rectly or indirectly, operate so as to discriminate against the 
members of any race.”

An appeal was taken from the above-mentioned decree 
and argument thereon was heard on March 21, 1956. On 
April 9, 1956, the Court of Appeals affirmed the decree of 
the District Court in a per curiam opinion.

The original bill of complaint for injunctive relief was 
filed in the District Court on June 21, 1951, and the peti­
tioners filed their answer on July 16, 1951. The case was 
subsequently set for trial but upon the request of the re­
spondents, it was continued generally. The case remained 
dormant on the docket until counsel for all parties received 
a notice of conference for trial assignment from the Clerk 
of the District Court stating that the case had been set for a 
pre-trial conference, report and fixing of date of trial in the 
Judge’s Chambers at Norfolk, Virginia, on November 5, 
1954.

At the hearing in the District Court on April 26, 1955, 
the petitioners filed the affidavit of Raymond V. Long, Di­
rector of the Department of Conservation and Development 
of the Commonwealth of Virginia, wherein it was stated 
that the Director had been empowered to enter into negoti­
ations for the lease of the Seashore State Park. It was fur­



6

ther stated that the lease would not contain a provision which 
could be construed as restricting the use of the Park to 
members of the white race. The Director also stated in his 
affidavit that he had never made a statement to the press con­
ceding that the segregation issue was a prominent factor 
in the decision to lease the Seashore State Park. This last 
statement was deemed material to the proceedings at that 
time, since at the hearing on the motion for preliminary 
injunction held on March 12, 1955, both counsel for the re­
spondents and the District Court had referred to alleged 
newspaper reports concerning the reasons for leasing Sea­
shore State Park.

After the affidavit was filed with the District Court on 
April 26, 1955, counsel for petitioners filed their motion 
to dismiss the preliminary injunction which had been granted 
on March 12, 1955, on the ground that there were no allega­
tions in any affidavit or in the verified complaint showing 
specific facts that would result in immediate and irreparable 
injury to the respondents. The District Court did not rule 
upon this motion.

Thereafter, counsel for the petitioners stipulated the facts 
hereinabove set forth and stated that they would consent to 
a decree enjoining the petitioners either directly or through 
their agents, servants or employees, and each o f them, their 
successors in office and their agents and employees, from 
refusing, on account of race or color to admit the respond­
ents, and other Negroes similarly situated, to the Seashore 
State Park.

The respondents would not agree to such a decree but 
insisted that the decree o f the District Court should also 
enjoin a lessee who was not a party to this action and was 
not, in fact, in existence. The District Court then directed 
counsel to submit briefs on the power of the Court to enjoin 
an unknown lessee, and stated that all parties would be given



7

the opportunity to present additional evidence if they so 
desired.

After briefs were submitted to the District Court, counsel 
for the respondents requested permission to interrogate the 
Director of the Department of Conservation and Develop­
ment and also requested oral arguments in support of their 
brief. This hearing was set for June 29, 1955, at which 
time, the testimony of Raymond V. Long was taken.

The facts of the case are not in dispute. Seashore State 
Park, located in Princess Anne County, near Cape Henry, 
is the only one of nine State parks located in that area.

All of these parks have been maintained and operated 
under the supervision and control o f the Department of 
Conservation and Development, an agency of the Common­
wealth of Virginia. The parks were built and maintained 
by public funds, but in 1950 revenue bonds in the amount 
of $600,000 were issued to cover the erection of sixty-seven 
cabins throughout the State Park system at the cost of about 
$8,000.00 each. Nine of these cabins are at Seashore State 
Park, and it is estimated that a yearly revenue of approxi­
mately $8,000 is required to pay Seashore’s proportionate 
share of the Revenue Bond expenditures. An outstanding 
indebtedness of about $415,000 remains. In case of default, 
there is no legal duty on the part o f the State to pay the 
bondholders. They are payable only out of revenue derived 
from the rental of cabins. The trust indenture, however, 
gives the bondholders wide authority, and under certain cir­
cumstances, the trustee may take over and operate the cabins 
on behalf of the bondholders.

The present litigation arose when the respondents were re­
fused admittance to Seashore State Park, solely by reason of 
the fact that they were members of the Negro race. Between 
this incident on June 16, 1951, and the time the case finally 
came before the District Court, the State of Virginia, real­



8

izing it could not operate the parks in a segregated manner, 
and feeling that it could not run the parks profitably on an 
unsegregated basis, had investigated the possibilities of leas­
ing the park to a private lessee who would be bonded to 
guarantee sufficient income to meet the bond requirements. 
The lessee would be free to operate the park in any manner 
he saw fit.

The State possesses the power to lease its property under 
Section 10-21.1 of the Code of Virginia, as amended, and 
made a press release on February 25, 1955, indicating that 
the Park might be leased. In response to this information, 
eighteen applicants indicated interest in this matter. No 
lease had been drawn up or signed, however, nor did the 
State know who the prospective lessees were. It was in­
tended that the lease would be a negotiated one, thus guar­
anteeing to the State the high quality of management and 
necessary experience that are a requisite in the running of 
recreational facilities. The provisions of the lease, however, 
had been discussed only in the most general terms.

The jurisdiction of the District Court for the Eastern 
District of Virginia, Norfolk Division, was invoked pur­
suant to Title 28, United States Code, Section 1343, and 
Title 28, United States Code, Sections 2201 and 2202.

A R G U M E N T

I.

The Action of the District Court Was Premature for It Has 
No Authority to Dictate the Provisions, or the Operation 
of, a Lease That May Be Executed by the State at Some 
Future Time.

Section 2, of Article III, of the Constitution of the United 
States has been uniformly construed as prohibiting the



9

rendering of advisory opinions. Furthermore, the existence 
of an actual controversy is necessary for an adjudication of 
a constitutional issue. See, United Public Workers v. 
Mitchell, 330 U. S. 75, 89-90 (1947), and Michael v. Cock- 
erall, 161 F. (2d) 163,165 (4th Cir. 1947).

It is hard to conceive that the possibility of a discrimina­
tory practice on the part of an unknown lessee, bound by 
a non-existent lease, could give the respondents a concrete 
legal issue upon which the District Court could render a 
decree. The record is devoid of probative facts which could 
tend to sustain the District Court’s decree to that extent.

There are three elementary doctrines concerning the issu­
ance of injunctions that the District Court has discarded in 
this proceeding.

First, “ there is no power, the exercise of which is more 
delicate, which requires greater caution, deliberation, and 
sound discretion, or more dangerous in a doubtful case, than 
the issuance of an injunction.” Truly v. Wanzer, 46 U. S. 
141, 142-43 (1847) and King v. Buskirk, 78 F. 233, 235 
(4th Cir. 1897).

Second, “ the plaintiff must show that the injury sought to 
be avoided by the injunction will be necessarily or practically 
certain, and not merely the probable, result of the acts 
whether intended or not.” United States v. Appalachian 
Electric Power Co., 107 F. (2d) 769, 790 (4th Cir. 1939). 
See, also, Connecticut v. Massachusetts, 282 U. S. 660, 674 
(1931) and Blease v. Safety Transit Co., 50 F. (2d) 852, 
856 (4th Cir., 1931).

Third, courts will not apply their equitable powers merely 
to allay litigants’ fears. Irwin v. Dixon, 50 U. S. 10 (1850) 
and Brunswick v. Elliott, 103 F. (2d) 746 (D. C. App. 
1939).

The Commonwealth of Virginia, as already pointed out,



10

readily admits that the respondents had been denied admit­
tance to Seashore State Park solely by reason of the fact 
that they were members of the Negro race. The petitioners 
also admit that such an act constitutes state action which is 
properly enjoinable by the District Court. However, the 
record in the proceedings below show that there is no lease, 
thus there can be no lessee. The respondents have not been 
denied admission to the park by any lessee for any reason 
whatsoever, nor does the record show that there is any 
reasonable certainty that such an action will take place. 
Under such circumstances, it is inconceivable that the re­
spondents have been so injured or so threatened with injury 
as to warrant the enjoining of an unknown lessee, or to 
warrant the mandate directing that if the park is leased, 
“ the lease must not, directly or indirectly, operate so as to 
discriminate against the members of any race.”

This unwarranted injunctive relief is based on mere con­
jecture, speculation and hypothetical threats. It is certainly 
not based on the evidence in the record or on any legal 
authority or sound reasoning. At best, it is premature.

Generally speaking, the relation of landlord and tenant, 
or lessor and lessee, is one which exists between two inde­
pendent parties and does not involve an agency relation, a 
master-servant relation, an employer-employee relation, or 
a licensor-licensee relation. The lessor transfers both pos­
session and right of possession. 11 M. J., Virginia and West 
Virginia, Landlord and Tenant. Section 29, p. 684. See 
also, 51 C. J. S., Landlord and Tenant, Section 2, p. 510.

There was no evidence before the District Court that there 
would be anything other than a normal landlord-tenant re­
lation if the petitioners should lease the Seashore State Park. 
Absent such evidence, it is clear that the Court did not have 
the power to include an unknown lessee in its injunction 
order.



11

If, of course, at a later date the petitioners do lease the 
Seashore State Park and it is found, as a fact, that Negroes 
are excluded and that the normal lessor-lessee relation does 
not exist, and there is privity between the petitioners and the 
then known lessee, contempt proceedings could be brought 
against the petitioners, as well as the so-called lessee, even 
though the latter was not a party defendant below. This is 
true, since the petitioners conceded that they should be en­
joined from denying admission to Negroes on racial grounds.

The District Court stated that it was not necessary to 
decide whether it was proper to enjoin an unknown lessee in 
this case, since the lessors were before the court. The lan­
guage of the final decree, to-wit: “ * * * the lease must not, 
directly or indirectly, operate so as to discriminate against 
the members of any race, * * *”  does by indirection what 
the court could not accomplish directly. It not only restricts 
the State, but it restricts an unknown lessee.

Section 10-21.1 of the Code of Virginia provides that a 
lease shall be subject only to the conditions, restrictions and 
reservations prescribed by the Director of the Department 
of Conservation and Development and approved by the Gov­
ernor. No State would intentionally write a provision in any 
lease that would violate the Federal Constitution or any 
Federal or State law. If the rights of any citizen of this 
State are denied because of any lease or any action on the 
part of the State, such citizen can always go into Court and 
ask for protection. Until, however, such rights are denied 
or have been threatened, no action will lie. This is the situ­
ation there.

The District Court has placed the cart before the horse, 
and has attempted to decide a purely abstract question, which 
is premature at this time because of lack of evidence.



12

II.

State Action Under the Fourteenth Amendment

The record is devoid of any evidence that the State has 
acted in bad faith; that the respondents will be injured; or 
that a prospective lessee will be an agent of the State, rather 
than an independent principal. Yet the Courts below, in their 
opinions, have relied upon “ state action” cases that were 
based upon facts that either indicated bad faith on the part 
o f the “ state”  or clearly showed privity between the lessor 
and lessee, or both.

Subject to constitutional restraints, a State may dispose 
of its property as any private citizen. The State’s power to 
lease Seashore State Park cannot be denied. See Section 10- 
21.1 of the Code of Virginia, as amended.

Individual invasion of individual rights is not protected 
by the Fourteenth Amendment. Civil Rights Cases, 109 U. 
S. 3, 11 (1883). Thus, the only protection against discrim­
ination that the District Court could afford the respondents 
is protection against discrimination by the Commonwealth 
of Virginia. United States v. Williams, 341 U. S. 70, 77 
(1951).

The question to be decided, then, is whether or not the 
actions of an independent lessee, in operating Seashore State 
Park in any manner he saw fit, constitute “ state action.”

The precise question of what constitutes “ state action” 
under the Fourteenth Amendment has come before the 
courts many times, and reasonably clear and definable lines 
of demarcation have appeared. Thus, if a state court en­
forces a private restrictive covenant, it will be “ state action,” 
Shelley v. Kraemer, 334 U. S. 1 (1948); and where a State 
and university are closely tied, the amendment will apply. 
Missouri, ex rel. Gaines v. Canada, 305 U. S. 337 (1938).



13

See, also, Rice v. Sioux City Memorial Cemetery, 349 U. S. 
70 (1955); Snowden v. Hughes, 321 U. S. 1 (1943) ; Ray­
mond v. Chicago Traction Co., 207 U. S. 20 (1907); Bar- 
rows v. Jackson, 346 U. S. 249 (1953); Terry v. Adams, 
345 U. S. 461 (1953). But private, individual, or corporate 
affirmative action without State support will not be consid­
ered “ state action.” Dorsey v. Stuyvesant Town Corpora­
tion, 229 N. Y. 512, 87 N. E. (2d) 541 (1949), cert, denied, 
339 U. S. 981 (1950) ; Norris v. Mayor and City Council 
of Baltimore, 78 F. Supp. 451 (D. Md. 1948); see, also, 
Barney v. City of New York, 193 U. S. 430 (1904).

While the petitioners readily admit that they were prop­
erly enjoined from denying the respondents, by reason of 
race, the right to use and enjoy the facilities of the Seashore 
State Park, it is earnestly contended that the actions of an 
independent future lessee are not limited by the provisions 
of the Fourteenth Amendment. Accordingly, the District 
Court has no authority to limit the actions of a future lessee, 
either directly or indirectly, under the facts of this case.

Modern social concepts have caused an ever-increasing 
area wherein Federal courts have declared “ state action” to 
exist, but, while conclusions have been varied, the test of 
“ state action” has remained constant. A  factual analysis is 
the key to proper determination of this question.

Once there is a material identification or a substantial 
degree of control by the State over so-called independent 
actions of a private individual or association, those actions 
become state actions within the meaning of the Fourteenth 
Amendment.

For example, in Shelley v. Kraemer, supra, there was a 
substantial degree of state control, since there was judicial 
enforcement by state courts of restrictive covenants against 
certain races. Flowever, in Dorsey v. Stuyvesant Town 
Corporation, supra, it was held that there was no substantial



14

degree of control by the “ state” and thus no “ state action,” 
even though a life insurance company had obtained land 
from the City of New York upon which to build a housing 
development and had obtained a tax exemption on the 
property.

In Kerr v. Enoch Pratt Free Library of Baltimore City, 
149 F. (2d) 212 (4th Cir. 1945), the court below found 
“ state action” in that the State, through the City of Balti­
more, continued to supply a private library corporation with 
means of existence. Thus, there was a substantial degree of 
control by the State.

But, in Norris v. Mayor and City Council o f Baltimore, 
supra, the District Court found no substantial degree of 
control by the state, since the mechanical institute was a 
private corporation and was not subject to control of public 
authority, notwithstanding receipt o f public funds in consid­
eration of free scholarships and favored treatment as lessee 
of public property.

The case of Terry v. Adams, supra, is an example of 
“ state action” because of material identification. There, it 
was held that a Texas political organization which dupli­
cated the State’s election process could not exclude Negroes 
from voting in its “ primary.” The organization was mate­
rially identified with the State through the Democratic 
Party.

The conclusions reached in the cases relied upon by the 
District Court in its opinion are justified under the material 
identification test; but the facts therein are readily distin­
guishable from the facts in the instant case. In the swim­
ming pool cases, Culver v. City of Warren, 83 N. E. (2d) 
82 (Ohio 1948) and Lawrence v. Hancock, 76 F. Supp. 
1004 (D.C.S.D. W. Va. 1948), it was found that the private 
associations were mere municipal instrumentalities through



15

which the cities operated the pools. Both of the associations 
were non-profit, both were formed shortly before the leases 
were executed, and both paid nominal rent.

In the Lawrence case, all of the net revenues derived by 
the lessee were required to be used to improve and develop 
the property and the evidence clearly showed that the mu­
nicipality was acting in bad faith, the purpose of the lease 
being to discriminate against Negroes.

In the Culver case, the city had the duty to make repairs. 
Further, it was found that the lessee confined approved 
applications to members of the white race, and Negro vet­
erans were rejected. The court, in effect, held that there 
was merely a “ colorable” lease.

In the instant case, the Department of Conservation and 
Development has advertised for bids from individuals or 
profit-making associations or corporations for the purpose 
of procuring a lessee who will be able to operate the park at 
sufficient profit to guarantee the financial return of a mini­
mum of $8,000.00 per annum, which amount the State is 
required to pay the holders of the revenue bonds issued to 
finance the construction of eight cabins at Seashore State 
Park.

Since there is evidence that there will be normal lessor- 
lessee relationships and that the Department of Conserva­
tion and Development, in fact, does not know who has made 
application to lease the park, there can be no charge of bad 
faith. Furthermore, under such circumstances, there is no 
material identification or substantial degree of control by the 
State to warrant a finding of “ state action.”

This Court’s previous decisions and the decisions of lower 
Federal courts do not justify the decisions of the courts be­
low. The so-called “ state action” doctrine has been extended 
for the first time to unknown lessees of the State, acting as



16

independent parties. The State should be free to dispose of 
its property under applicable State law without interference 
from the Federal courts. The decision in the instant case 
does not permit this. To the contrary, the decision below 
indicates that the State is now compelled to place an affirma­
tive provision in every lease to which it is a party stating, in 
terms, that the lessee will not discriminate against the mem­
bers o f any race, whether the lease be for a term of months 
or for a period of ninety-nine years.

Accordingly, it is respectfully submitted that the court 
below has decided an important question under the Four­
teenth Amendment in a way that has extended, and, in fact, 
departed from, applicable decisions of this Court, and thus 
calls for the exercise of the supervisory power of this Court.

Respectfully submitted,

J. L indsay A lmond, Jr.
Supreme Court Building 
Richmond, Virginia 

Attorney General of Virginia
FIenry T. W ickham

1407 State-Planters Bank Bldg. 
Richmond, Virginia 

Special Assistant
Attorneys for Petitioners

Dated: July 5, 1956.



17

C E RTIFICATE OF SERVICE

I hereby certify that copies of the aforegoing petition 
have been served by mailing the same, with first class post­
age prepaid, to the following counsel of record:

Victor J. Ashe, Esquire 
1134 Church Street 
Norfolk 10, Virginia

J. Hugo Madison, Esquire 
1017 Church Street 
Norfolk 10, Virginia

James A. Overton, Esquire 
801 High Street 
Portsmouth, Virginia

Oliver W. Hill, Esquire 
118 East Leigh Street 
Richmond 19, Virginia

Spottswood W. Robinson, III, Esquire 
623 North Third Street 
Richmond 19, Virginia

on this..... day of July, 1956.

H enry T. W ickham



A P P E N D I X



APPENDIX I

O P IN IO N  OF C O U R T  OF APPEALS 
FO R  F O U R T H  C IR C U IT

Per Curiam  :

This is an appeal in an action instituted by Negro citizens 
of Virginia against the Department of Conservation and 
Development, Division of Parks, of the Commonwealth of 
Virginia and the individual park commissioners to enjoin 
threatened racial discrimination in the operation of Sea­
shore State Park. Decree was entered therein enjoining 
the defendants, their “agents, lessees and successors in 
office”  from denying to “ any person of the Negro race, by 
reason of his race and color, the right to use and enjoy the 
facilities” of the park. The decree further provided “ that if 
said Park or any part thereof is leased, the lease must not, 
directly or indirectly operate so as to discriminate against 
the members of any race.” The defendants have appealed 
complaining especially of the provision last quoted.

W e think that the decree appealed from is correct for 
reasons adequately stated in the opinion of the District 
Judge and that little need be added thereto. See 133 F. Supp. 
53. It is perfectly clear under recent decisions that citizens 
have the right to the use o f the public parks of the state 
without discrimination on the ground of race. Dazvson et 
al v. Mayor and City Council of Baltimore 4 Cir. 220 F. 
2d 386, aff. 350 U. S. 877; Holmes v. Atlanta 350 U. S. 
879. And we think it equally clear that this right may not be 
abridged by the leasing of the parks with ownership re­
tained in the state. See Lawrence v. Hancock 76 F. Supp. 
1004, 1009; Muir v. Louisville Park Theatrical Ass’n 347 
U. S. 971. And it is no ground for abridging the right that 
the parks cannot be operated profitably on a non segregated



App. 2

basis. Since the park here could not be operated profitably 
on such basis and leasing was being contemplated for that 
reason, it was proper to insert in the decree a provision 
which would protect the rights of plaintiffs in the event of 
lease. Cf. Regal Knitware Co. v. N. L. R. B. 324 U. S. 9, 
14-16. As said by the District Judge:

“ The short answer to the argument advanced by de­
fendants, that there is insufficient evidence to justify 
a permanent injunction based upon future threatened 
irreparable injury, lies in the testimony of the Director 
(Long) in that he admits that Seashore State Park 
cannot be operated profitably on an ‘unsegregated’ 
basis by the Department o f Conservation and Develop­
ment. While this Court is inclined to agree with this 
statement, if this be true, it stands to reason that no 
individual may operate the park at a profit without 
enforcing segregation. Should the successful lessee 
elect to admit Negroes only, then the members of the 
white race have just cause to complain. If it is operated 
for the benefit of only the members of the white race, 
the Negroes may complain. Accordingly, the defend­
ants are required to elect to operate on a non-discrimi- 
natory basis, or, if leased, to see that the park is 
operated by the lessee without discrimination.”

There is no merit in the contention of appellants that the 
decree appealed from is too vague and indefinite.

Affirmed.



APPENDIX II

FIN AL DECREE OF D IST R IC T  C O U R T

This cause came on this day to be heard upon the pleadings 
filed herein, the stipulations of counsel, the evidence heard 
in open court, and was argued by counsel.

It appearing to the Court that all parties are properly 
before said Court and that the plaintiffs have presented a 
proper case to enjoin the defendants from denying the use 
of the recreational facilities o f the Seashore State Park; 
and it further appearing to the Court that the prayer of 
said plaintiffs to enjoin the defendants, their lessees, their 
agents and their successors in office, from denying to said 
plaintiffs and other persons of a similar class and similarly 
situated the use and enjoyment of the Seashore State Park 
and its recreational facilities is proper;

lit is ADJUDGED, ORDERED and DECREED that 
the Department of Conservation and Development of the 
Commonwealth of Virginia, its Director, agents, lessees and 
successors in office, are hereby permanently enjoined and 
restrained from denying any person of the Negro race, by 
reason of his race and color, the right to use and enjoy the 
facilities at Seashore State Park; it is further ADJUDGED, 
ORDERED and DECREED that if said Park or any part 
thereof is leased, the lease must not, directly or indirectly, 
operate so as to discriminate against the members of any 
race{

The Clerk will assess the costs in this proceeding against 
the defendants herein, said costs to include an item of $23.10 
due to the Court Reporter for her services in preparing the 
transcript in accordance with an order of this Court.

(s ) W alter E. H offman 
United States District Judge

October 6, 1955 
Norfolk, Virginia