Mayor and City Council of Baltimore City v. Dawson Motion to Dismiss or Affirm

    IN' THE

Supreme (Enurt nf %  United States
October Term, 1955

No. 232

MAYOR AND CITY COUNCIL OF BALTIMORE 
CITY, et al,

Appellants,
vs.

ROBERT M. DAWSON, JR., et al.,
Appellees.

R. BROOKE MAXWELL, etc., et al,
Appellants,

vs.
MILTON LONESOME, et al,

Appellees.

On  A ppe a l  from  t h e  U n ited  S tates C ourt oe A ppeals  
eor t h e  F ou rth  C ir c u it

MOTION TO DISMISS OR AFFIRM

R obert L . Carter,
T u ck er  D earing ,
L inw ood  K oger, J r ., 
T hurgood M arshall ,

Attorneys for Appellees.
J ack  Greenberg ,
J u a n ita  J ackson  M it c h e l l ,

Of Counsel.

Supreme Printing Co., I nc., 114 W orth Street, N. Y. 13, BE ekman 3 - 2320



I N D E X

PAGE

Statement ..................................................................  2
Argument ..................................................................  2
Conclusion.....................................................................  7

Cases Cited

Atchison Topeka and Santa Fe Ry. Co. v. Public 
Utilities Commission, 346 U. S. 346 ......................... 5

Bolling v. Sharpe, 347 U. S. 497 ............................  2, 6
Brown v. Board of Education, 347 U. S. 483 ......... 2, 6
City of Richmond v. Deans, 37 F. 2d 713 (CA 4th 

1930), aff’d 281 U. S. 704 . ......................................  3
Durkee v. Murphy, 181 Md. 259, 39 Atl. 2d 253 (1942) 5
Hamilton v. University of California, 293 U. S. 245 . . 5
Henderson v. United States, 339 U. S. 816............  2
King Manufacturing Co. v. Augusta, 277 U. S. 100 .. 5, 6
McCarroll v. Dixie Greyhound Lines, 309 U. S. 176 . . 3
McLaurin v. Oklahoma State Regents, 339 U. S. 637 2
New State Ice Co. Inc. v. Liebmann, 285 U. S. 262 .. 3
New York v. Latrobe, 279 U. S. 421 .......................  3
People ex rel. McCollum v. Board of Education, 333

U. S. 203 ................................................................ 5
Plessy v. Ferguson, 163 U. S. 537 ........................... 2
Public National Bank of New York v. Keating, 47 F.

2d 561 (CA 2nd 1931) aff’d 284 U. S. 587 ......... 3
Republic Pictures Corp. v. Kappler, 151 F. 2d 543 

(CA 8th 1945), aff’d, 327 U. S. 757, reh. den., 327 
U. S. 817................................................................ 3



11

PAGE

Sultan Ey. & T. Co. v. Department of Labor & Indus­
tries, 277 U. S. 135................................................  5

William v. Bruffy, 96 U. S. 176.................................. 5

Statutes Cited

Title 28, United States Code:
Section 1254 (2) ............................................... 1, 3, 4, 6
Section 1257(2) .................................................. 4,5,6
Section 2101(c) .................................................. 3

Authorities Cited

Frankfurter and Landis, The Business of the Su­
preme Court, 276-278 (1927) ................................  4

Moore, Commentary on the U. S. Judicial Code 
(1949), page 552 4



IN' THE

Uispmtt? Cmui ox %  Bintcs
O ctober T e rm , 1955 

No. 232

- o -

M ayor and C ity  C o u n c il  of B altim ore  C ity , et al.,
Appellants,

vs.

E gbert M . D aw son , J r ., et al.,
Appellees.

E. B rooke M axw ell , etc., et al.,

vs.
Appellants,

M ilto n  L onesom e , et al.,
Appellees.

O n  A ppe a l  erom  t h e  U n ited  S tates C ourt oe A ppeals  
for t h e  F o u rth  Cir c u it

— -----------------o---------------------

MOTION TO DISMISS OR AFFIRM

Appellees, pursuant to Rule 16 of the Revised Rules of 
the Supreme Court of the United States, move that these 
appeals be dismissed as improperly brought on the ground 
that the constitutionality of a “ state statute” within the 
meaning of Title 28, United States Code, Section 1254(2) 
is not here In issue, and, in the alternative, move that the 
final judgment and decree of the Court of Appeals be 
affirmed on the ground that it is so clearly correct as not 
to warrant further argument.



2

Statem ent

These are two appeals, consolidated in the court below 
and here, from a final judgment and decree entered by the 
Court of Appeals on March 14, 1955, reversing the judg­
ment of the District Court which had refused to grant 
injunctive relief against the enforcement of racial segre­
gation in public beaches at Sandy Point State Park and at 
Port Smallwood Park. The basis for the District Court’s 
decision (123 P. Supp. 193) was that Brown v. Board of 
Education, 347 U. S. 483, and Bolling v. Sharpe, 347 U. S. 
497, did not apply and that the “ separate but equal” doc­
trine remained the appropriate constitutional yardstick in 
the field of public recreation here involved. The Court of 
Appeals (220 P. 2d 386) reached a contrary conclusion on 
the ground that rationale governing disposition of these 
cases was to be found in McLaurin v. Oklahoma State 
Regents, 339 U. S. 637; Henderson v. United States, 339 
U. S. 816; Brown v. Board of Education, supra; and Bolling 
v. Sharpe, supra, and not in Plessy v. Ferguson, 163 U. S. 
537, and that racial segregation could no longer be justified 
on a mere showing that the tangible facilities furnished one 
race was equal to those furnished the other. Appellants 
brought the cases here. Appellees were granted leave to 
file their motion to dismiss or affirm on or before Septem­
ber 30, 1955.

Argument

1. While appellees would prefer that these appeals be 
disposed of on their merits, it must be pointed out that 
appellants’ right to appeal to this Court is beclouded with 
doubt. If appellants have chosen the improper procedure 
to seek review in this Court, their appeals must be dis­
missed without more. Appellants urge that the Court treat 
their appeals as petitions for write of certiorari in the event



3

that an appeal will not lie. As petitioners for writs of 
certiorari, however, they were filed untimely, and in view 
of appellants non-compliance with Title 28, United States 
Code, Section 2101(c), this Court has no jurisdiction to treat 
these appeals as petitions for writs of certiorari. They must 
stand or fall on whether the jurisdictional prerequisites 
under 1254(2) have been met.

Appellants claim that they may appeal as of right in 
these cases and that the Supreme Court is vested with juris­
diction by virtue of Title 28, United States Code, Section 
1254(2) which provides that:

Cases in the courts of appeals may be reviewed 
by the Supreme Court by the following methods: 
. . . (2) By appeal by a party relying on a state 
statute held by a court of appeals to be invalid as 
repugnant to the Constitution, treaties or laws of 
the United States . . .

Appellants, however, have produced no authority for 
the proposition that the informal rules requiring segrega­
tion, maintained and enforced by appellants, the Commis­
sion of Forests and Parks and the Board of Recreation 
and Parks, or the regulations and practices of the Board 
of Recreation and Parks of the City of Baltimore are 
“ state statutes” within the meaning of Section 1254(2). 
None of the cases which they cite reach appellants’ situa­
tion. McCarroll v. Dixie Greyhound Lines, 309 U. S. 176; 
New State Ice Co. v. Liebmann, 285 U. S. 262; New York 
v. Latrobe, 279 U. S. 421; Republic Pictures Corp. v. Kap- 
pler, 151 F. 2d 543 (CA 8th 1945), aff’d, 327 U. S. 757, rehear­
ing denied, 327 U. S. 817; Public National Bank of New York 
v. Keating, 47 F. 2d 561 (CA 2nd 1931), aff’d, 284 U. S. 
587, concerned challenges to the constitutionality of stat­
utes enacted by state legislatures. City of Richmond v. 
Deans, 37 F. 2d 713 (CA 4th 1930), aff’d, 281 U. S. 704, 
involved a zoning ordinance enacted by a municipality.



4

It must be admitted, however, that appellees have 
found no authority which affirmatively forecloses the ques­
tion against appellants’ jurisdictional claim. Relatively 
few cases have reached this Court on appeal from the 
Courts of Appeals since Section 1254(2) was enacted in 
its present form in 1925, and none have necessitated an 
examination of the meaning of “ state statute.”

An examination of the House and Senate reports and 
the Congressional debates on the bill does not illuminate 
the issue. The bill as originally presented and reported 
would have abolished all appeals from Courts of Appeals 
to the Supreme Court, leaving certiorari as the only route 
available to a defeated party. A number of Senators, 
alarmed at the possibility that the Courts of Appeals 
might become the final arbiters in cases involving the con­
stitutionality of state statutes, offered an amendment vest­
ing appellate jurisdiction in the Supreme Court in cases 
where the Courts of Appeals held state statutes unconsti­
tutional, and thus Section 1254(2) was enacted in its pres­
ent form. 66 Cong. Rec. 2876-2880, 2916-2929 (1925). 
See also Frankfurter and Landis. The Business of the 
Supreme Court 276-278 (1927). No legislator, however, 
attempted to give content to the word “ statute.”

Moore, in his Commentary on the U. S. Judicial Code 
(1949) at page 552, suggests that “ statute” under Section 
1254(2) be given the same meaning as “ statute of any state” 
in Section 1257(2)—the section giving the Supreme Court 
appellate jurisdiction over certain cases decided by the 
highest courts of the state. Counsel was unable to find 
any legislative history or decisional law to support Moore’s 
thesis that this is the proper construction of Section 
1254(2). Needless to say, acceptance of this contention 
would greatly aid appellants in their effort to sustain their 
position that direct appeal is procedurally proper in these 
cases.



5

The rule governing Section 1257(2) was first stated in 
William v. Bruffy, 96 U. S. 176, where the Court said at 
p. 183:

Any enactment from whatever source originating 
to which a state gives the force of law is a statute 
of the state, within the meaning of the clause cited 
relating to the jurisdiction of this court.

Although the statute has been materially changed since 
the advent of the Bruffy case, this Court has adhered to the 
rule there stated. Thus, this Court has sustained its 
appellate jurisdiction in cases involving challenges to 
municipal ordinances, King Manufacturing Co. v. Augusta, 
277 TJ. S. 100; and to the orders of state agencies and com­
missions. Sultan By. & T. Co. v. Department of Labor <& 
Industries, 277 U. S. 135; Hamilton v. University of Cali­
fornia, 293 U. S. 245. These decisions and others, see, 
e. g., People ex rel. McCollum v. Board of Education, 333 
U. 8. 203; Atchison Topeka and Santa Fe By. Co. v. Public 
Utilities Commission, 346 TJ. S. 346, might be distinguished 
on the ground that, in each case, the agency’s order was 
clearly authorized by a state statute.

It must be conceded, however, that it would be more 
difficult to distinguish the rationale. In the McCollum and 
Atchison cases, the Court held that the fact that the high­
est court of the state had sustained the agency action, as 
authorized by state law, was sufficient to show that the 
validity of a “ statute” was drawn into question. Here, 
as appellants have noted, the highest court of Maryland 
has held that appellants’ policy of segregation is author­
ized by state law. Durkee v. Murphy, 181 Md. 259, 39 Atl. 
2d 253 (1942).

Nevertheless, as noted previously, there is no decisional 
or legislative authority, we know of, to warrant a conclu­
sion that those cases giving force and meaning to Section



6

1257(2) control the construction of the scope and meaning of 
1254(2). In fact, in King Manufacturing Co. v. Augusta, 
supra, the leading modern case interpreting the meaning of 
“ statute” under Section 1257(2), this Court specifically 
stated that its decision was limited to cases coming from 
state courts and should not be construed as an interpreta­
tion of other jurisdictional provisions. Indeed, logic 
would seem to favor giving “ state statute” as used in 
Section 1254(2) a strict and technical construction, since 
an appeal to this Court as a matter of right is allowable 
only in an extraordinary class of cases.

It may well be that this Court should now clarify this 
somewhat obscure procedural question, but, wTe submit, 
appellants have chosen to pursue a hazardous procedural 
course and subject their appeals to dismissal on jurisdic­
tional grounds.

2. The logic of the decision of the Court of Appeals is, 
inescapable, we submit. Here appellees sought unrestricted 
use of public beaches and parks operated by the State of 
Maryland and the city of Baltimore on the grounds that 
the enforced racial segregation was unconstitutional in the 
light of the rejection of the “ separate but equal” doctrine 
by this Court in the School Segregation Cases. While it 
is true that Brown v. Board of Education and Bolling v. 
Sharpe, involve public education at the elementary and 
secondary school levels, the rationale of those cases is 
applicable here and must govern disposition of this con­
troversy. It could hardly be held under the facts of these 
cases that racial segregation constitutes a denial of “ equal 
protection of the laws” and “ due process of law” when 
practiced in public schools, and is consistent with those 
constitutional concepts in the field of public recreation. 
The judgment of the Court of Appeals is clearly correct 
and should be affirmed.



7

CONCLUSION

W herefore, for the reason hereinabove stated, it is 
r e s p e c t f u l l y  submitted that these a p p e a l s  s h o u ld  b e  d i s ­
m is s e d  a n d / o r  that the judgm ent a p p e a l e d  f r o m  should
be affirmed.

R obert L . Carter,
T u ck er  B earing ,
L in  wood K oger, J r ., 
T hurgood  M arshall ,

Attorneys for Appellees.

J ack  G reenberg ,
J u a n ita  J ackson  M it c h e l l ,

Of Counsel.