Turner v. City of Memphis Brief on Behalf of Appellees

    IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBEE TEEM, 1961

No. 84

JESSE TUENEE,
Appellant,

vs.
CITY OF MEMPHIS, a Municipal Corporation Char­
tered under the Laws of the State of Tennessee, and 
DOBBS HOUSES, INC., a Corporation Organized and 
Existing under the Laws of the State of Tennessee, and 
W. S. HAVEEEIELD, Manager of the Dobbs Houses, 

Inc., Eestaurant in Memphis Municipal Airport, 
Appellees.

BRIEF ON BEHALF OF DOBBS HOUSES, INC. 
AND W. S. HAVERFIELD, APPELLEES

E dwakd P. a . S mith, 
Commerce Title Building, 
Memphis 3, Tennessee,

Attorney for Appellees, 
Dobbs Houses, Inc., and 
W. 8. Haverfield.

Of Counsel:
J ohn M. H biskell,
W illiam V. A lexandre, J e. 
Montedonico, B oone, Gilliland, 

H eiskell & L och,

Commerce Title Building, 
Memphis, Tennessee



INDEX

PAGE
Preface ............................................................................... 1

Appellees’ P osition ...........................................................  1

Argument ........................................................................... 2

Conclnsion...........................................................................  3

Cases Cited

Claybrook v. State, 164 Tenn. 440, 443 (1932).............  3

Harrison v. N.A.A.C.P., 360 U. S. 167,
79 S. Ct., 1025 (1959)...................................................  3

S tate R egulation Cited

Tenn. Dept, of Conservation, Division of Hotel and 
Restaurant Inspection (Approved June 18, 1952 
filed in Office of Secretary of State).

Regulation No. R-18(L)............................................  2



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBEE TEEM, 1961

No. 84

JESSE TUENEE,
Appellant,

vs.
CITY OF MEMPHIS, a Municipal Corporation Char­
tered under the Laws of the State of Tennessee, and 
DOBBS HOUSES, INC., a Corporation Organized and 
Existing under the Laws of the State of Tennessee, and 
W. S. HAVEEPIELD, Manager of the Dobbs Houses, 

Inc., Eestaurant in Memphis Municipal Airport, 
Appellees.

BRIEF ON BEHALF OF DOBBS HOUSES, INC. 
AND W. S. HAVERFIELD, APPELLEES

PREFACE

The positions of Dobbs Houses, Inc. and its manager, 
W. S. Haverfield, have been stated in the Motion to Dis­
miss Appeal filed on their behalf in this Court in this ease 
and will not be duplicated in this brief.

APPELLEES’ POSITION

The doctrine of abstention was correctly applied below 
and should be sustained.



ARGUMENT

Everything else aside, Dobbs Houses, Inc. is faced with 
the proposition that it operates the restaurant at Memphis 
Municipal Airport under a lease with the City of Memphis 
which requires that no part of the leased premises shall be 
used for any purpose in violation of the laws of Tennessee. 
(Record, pp. 8 to 17, at p. 14.)

Admittedly, (appellant’s brief, pp. 2-3), it is a violation 
of the criminal statutes of Tennessee for a restaurant 
operator to fail to comply with rules and regulations made 
by the Division of Hotel and Restaurant Inspection, De­
partment of Conservation of the State of Tennessee (Ten­
nessee Code Annotated, Sections 53-2120 and 53-2121), and 
that there is in existence in Tennessee a regulation made 
by that agency under statutory authority. 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 separate 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.”

This regulation has not been before the Tennessee Courts 
for construction, nor has its constitutionality been there 
challenged.

Appellant argues that the regulation is ambiguous and 
does not require segregation of the races in restaurants. 
(Appellant’s brief, p. 15.)



However, the City of Memphis has construed the regula­
tion as mandatory and as requiring segregation of races 
in the restaurant operated by Dobbs Houses, Inc. at Mem­
phis Municipal Airport. (Answer of City of Memphis, Third 
Defense, E. p. 7.)

The regulation may, as contended by appellant, be un­
constitutional, but, under the law of Tennessee, it is deemed 
valid and enforceable until declared invalid by a Court 
of competent jurisdiction.

Claybrooh v. State, (1932) 164 Tenn. 440, 443.

Dobbs Houses, Inc., if it should accept appellant’s conten­
tion and desegregate its restaurant, would subject itself 
(1) to arrest and prosecution under state law each time it 
served a negro citizen, and (2) to a forfeiture or attempted 
forfeiture of its lease with the City of Memphis. Such action 
would involve a multiplicity of actions and an unnecessary 
harassment of this appellee.

Under these facts and circumstances Harrison v. 
N.A.A.C.P. (1959), 360 U. S. 167, is applicable and the 
doctrine of abstention as applied by the Court below (E. pp. 
87-89) is appropriate to the protection and preservation of 
the rights of all the parties.



CONCLUSION

I t  is, therefore, prayed that this appeal be dismissed, or 
deferred until such time as the Courts of Tennessee have 
been afforded an opportunity to construe, interpret and 
pass on the validity of the state laws and regulations here­
inbefore set forth.

Respectfully submitted.

E dwaed P. a . S mith,
Commerce Title Building, 
Memphis 3, Tennessee, 

Attorney for Appellees, 
Dobbs Houses, Inc., and 
W. 8. Haverfield.

Of Counsel:

J ohn M. H biskeul,
W illiam V. A lexander, J r. 
Montedonico, B oone, Gilliland, 

H eiskell & Loch,
Commerce Title Building, 
Memphis, Tennessee