Muir v. Louisville Park Theatrical Association Petitioner's Reply to Respondent's Brief in Opposition

    I n  THE

$ t t p r a t t ?  (Hmtrt o f  tl?? I t t i f c f t  S t a t e s
October Term, 1953

No. 85

JAMES W. MUIR,
Petitioner,

versus

LOUISVILLE PARK  THEATRICAL ASSOCIATION,
Respondent.

On P etition  for a W rit of Certiorari to th e  U nited  S tates 
Court of A ppeals for th e  S ix t h  C ircu it

PETITIONER’S REPLY TO RESPONDENTS 
BRIEF IN OPPOSITION

R obert L. Carter, 
T hurgood M arshall , 
Be n ja m in  F. S hobe, 

Counsel for Petitioner.
E lwood H. C h iso lm ,
D avid E . P in s k y ,

of Counsel.

Dated: September 14, 1953.

S upreme Printing Co., I nc., 114 W orth Street, N. Y., BE eSk m a n  3 - 2320



)



INDEX

I. Jurisdiction ............................................................... 1

II. The Questions Presented Are Not M o o t .............. 1
III. Petitioner Was Refused Admission Pursuant to

Rules and Regulations of the City of Louisville.. 4
Conclusion ..................................................................   7

Table of Cases Cited

Alejandrino v. Quezon, 271 U. 8. 528, 535 ...................... 3
Atherton Mills v. Johnston, 259 U. S. 1 3 ...................... 3
Belcher Land Mortgage Co. v. Hazard Coal Corp., 15

F. 2d 481 (C. A. 6th, 1926) ...........................................  5
Board of Park Commissioners v. Speed, 215 Ky. 319,

285 S. W. 212 (1926) ....................................................  4

Chesapeake & 0. R. Co. v. City of Morehead, 223 Ky.
698, 4 S .W . 2d 726 (1928) ............................................... 5

Civil Rights Cases, 109 U. S. 3, 1 7 .................................  6
Culver v. City of Warren, 84 Ohio App. 373, 83 N. E.

2d 82 (1948) ........................................................... 5
Doremus v. Board of Education, 342 U. S. 429 ............ 3
Douglas v. Jeanette, 319 H. S. 157, 165 .......................... 2
Ford Motor Co. v. United States, 335 U. S. 303, 312-13.. 4
Gray v. University of Tennessee, 342 U. S. 5 1 7 ............ 3
Great Northern Railway Co. v. Delmar Co., 283 U. S.

686, 691 ............................................................................. 5

Harris v. City of St. Louis, 233 Mo. App. 911, 111 S. W.
2d 995 (1938) ........................................................... 5

Kern v. City Commissioners, 151 Kans. 565, 100 P.
2d 709 (1940)

PAGE

5



11

Lawrence v. Hancock, 76 F. Supp. 1004 (S. I). W. Va.
1948) ................................................................................. 5

Leslie County v. Maggard, 212 Ky. 354, 279 S. W. 335 
(1926) ...............................................................................  5

McLaurin v. Oklahoma State Regents, 339 U. S. 637 .... 3
Nash v. Air Terminal Services, 85 F. Supp. 545, 549

(E. D. Va. 1949) .............................................................  6
Nixon v. Herndon, 273 U. S. 536 ...................................  6
Park Commissioners of Ashland v. Shanklin, 304 Ky.

43, 199 S. W. 2d 721 (1947) .......................................  4
Public Utilities Commission v. United Fuel Gas Co.,

317 U. S. 456, 466 ........................................................... 3
Public Utilities Commission of the District of Columbia 

v. Poliak, 343 U. S. 451, 461-62 .................................. 6
Southern P. Terminal Co. v. Interstate Commerce Com­

mission, 219 U. S. 498, 514-15 .......................................  4
Sweatt v. Painter, 339 U. S. 629 .......................................  3
Trailmobile Co. v. Whirls, 331 U. S. 40, 48-49 .............. 3
United States v. Hamburg-Amerikanische Co., 239 U. S.

466 ..................................................................................... 3
United States v. Trans-Missouri Freight Assoc., 166 

U. S. 290 ........................................................................ 3

Other Citations

17 C. J. S., Contracts, Sec. 3 1 8 .........................................  5
Louisville Courier Journal

July 5, 1953 .................................................................  2n
July 12, 1953 ...............................................................  2n
July 19, 1953 ...............................................................  2n
July 26, 1953 ...............................................................  2n
August 2, 1953 .............................................................  2n
August 9, 1953 .............................................................  2n
August 16, 1953 ...........................................................  2n

PAGE



I l l

PAGE

Louisville Defender
July 23, 1953 ...............................................................  2n

Louisville Times
August 11, 1953 ...........................................................  2n

New York Times
June 18, 1953 ...............................................................  6

Title 28, U. S. Code, Sec. 1254(1) .................................. 1





1st t h e

£>uprmp (tart nf %  Staten
October Term, 1953

No. 85

----------- o-----------
J am es W . M u ir ,

Petitioner,
versus

L ouisville P ark  T heatrical A ssociation,
Respondent.

On P etition  for a W rit  oe Certiorari to t h e  U nited S tates 
C ourt of A ppeals for th e  S ix t h  C ircu it

----------------------------- o----------------------------

PETITIONER’S REPLY TO RESPONDENT’S 
BRIEF IN OPPOSITION

I.

Jurisdiction.

The statement in the petition for the writ of certiorari 
that petitioner invokes the jurisdiction of this Court on the 
basis of Title 28, United States Code, Section 1251(1) is, of 
course, a typographical error. Jurisdiction is invoked under 
Title 28, United States Code, Section 1254(1).

II.

The Questions Presented Are Not Moot.

Respondent raises the identical issue of mootness that 
it asserted in the Court of Appeals. By disposing of this



2

case on the merits, the Court of Appeals clearly indicated 
that this contention had no substance. It has no greater 
merit in this Court.

The petition for the writ of certiorari brought to the 
attention of the Court the fact that subsequent to the 
expiration of the 1947-1951 agreement, a new agreement 
was entered into between respondent and the City for the 
1952 summer season. This agreement appears as Appen­
dix A to the petition. While the petition did not state that 
theatrical performances were presented by respondent dur­
ing the 1952 season, this is the fact. Significantly, respond­
ent does not deny the existence of the 1952 agreement nor 
the fact that performances were given pursuant to it. The 
renewal of the 1952 agreement for the 1953 season was also 
set forth in the petition. Petitioner can now further advise 
the Court that musicals were again presented at Iroquois 
Amphitheatre during the months of July and August, 1953, 
for a six week season under the respondent’s sponsorship.1 
Negroes were again denied admittance.2 Respondent’s 
Brief in Opposition likewise fails to deny any of the facts 
relating to 1953.

Respondent’s argument thus narrows down to a highly 
technical contention that this Court is bound by the record 
and cannot consider events which have transpired subse­
quently. But this argument necessarily falls by the weight 
of its own fundamental inconsistency. Respondent’s argu­
ment necessarily rests on the proposition that a court of 
equity looks to the future, Douglas v. Jeanette, 319 U. 8. 
157, 165, and will normally decide an appeal on the basis

1 The Louisville Courier Journal, July 5, 1953, § 5, p. 2, col. 1; 
id., July 12, 1953, § 5, p. 1, col. 4; id., July 19, 1953, § 5, p. 1, col. 4; 
id., July 26, 1953, § 5, p. 1, col. 4; id., Aug. 2, 1953, § 5, p. 1, col. 2; 
id., Aug. 9, 1953, § 5, p. 1, col. 4; id., Aug. 16, 1953, § 5, p. 1, col. 6.

The Louisville Times, Aug. 11, 1953, p. 12, col. 1.
2 The Louisville .Defender, July 23, 1953, p. 1, col. 8.



3

of circumstances existing at the time of the appeal. Public 
Utilities Commission v. United Fuel Gas Co., 317 U. S. 456, 
466; Sweatt v. Painter, 339 U. 8. 629; McLaurin v. Oklahoma 
State Regents, 339 U. S. 637. However, in so doing, the 
Court must necessarily consider circumstances which have 
transpired subsequent to the entry of judgment in the trial 
court. This is a well established proposition. In deciding 
whether a question is moot, this Court will consider facts 
beyond the record. Gray v. University of Tennessee, 342 
U. S. 517; Doremus v. Board of Education, 342 IJ. S. 429; 
Trailmobile Co. v. Whirls, 331 U. S. 40, 48-49; Atherton 
Mills v. Johnston, 259 U. S. 13; United States v. Hamburg- 
Amerikanische Co., 239 U. 8. 466; Alejandrino v. Quezon, 
271 IT. 8. 528, 535.

Similarly, in deciding cases on the merits, this Court 
has looked beyond the record to consider the effect of 
circumstances occurring after judgment in the trial court. 
Sweatt v. Painter, 339 IT. S. 629; McLaurin v. Oklahoma 
State Regents, 339 IT. S. 637; United States v. Trans- 
Missouri Freight Assoc., 166 U. 8. 290, 308-9. In Sweatt v. 
Painter, supra, a new Negro law school had been put into 
operation after judgment had been entered in the trial court. 
In holding that Texas did not provide a law school educa­
tion for Negroes equal to that provided for white students, 
this Court gave full consideration to the facts relating to 
the better facilities in the new law school. Similarly, in 
McLaurin v. Oklahoma State Regents, some of the more 
onerous restrictions which had been placed on McLaurin 
were removed between the time the decree was entered in 
the district court and the time the case was argued in this 
Court. This Court again looked beyond the record and 
considered the facts as they existed at the time of argument.

Petitioner merely asks the Court to follow the same pro­
cedure applied in Sweatt, McLaurin and numerous other



4

cases. Any other course would result in the grossest injus­
tice imaginable. By utilizing successive lease agreements 
covering only a single summer, respondent could success­
fully frustrate petitioner’s right of appeal, for the agree­
ment in force at the time of the trial would have expired 
by the time of appeal. Cf. Southern P. Terminal Co. v. 
Interstate Commerce Comm., 219 U. S. 498, 514-15; Ford 
Motor Co. v. United States, 335 U. S. 303, 312-13. This 
Court could hardly sanction such a result.

III.

Petitioner Was Refused Admission Pursuant to Rules 
and Regulations of the City of Louisville.

1. Respondent misconceives the reason for reliance on 
Park Commissioners of Ashland v. Shanklin, 304 Ky. 43, 
199 S. W. 2d 721 (1947), and Board of Park Commissioners 
v. Speed, 215 Ky. 319, 285 S. W. 212 (1926). Petitioner does 
not ask the Court to grant the writ of certiorari in order to 
decide a question of Kentucky law. But we submit that the 
Kentucky decisions are indirectly relevant. The Shanklin 
and Speed cases state that a city department of parks 
cannot lawfully lease public park property to an inde­
pendent proprietor and thereby relinquish control over its 
use. Hence, if the facts relating to the relationship between 
the City and respondent are at all equivocal—if there is 
some doubt as to the extent of control exercised by the 
City over the operations of respondent—this Court is justi­
fied in drawing the inference that the parties contracted 
with full knowledge of state law and thus intended that the 
City of Louisville retain the right to control the operations 
of respondent. This is merely an application of the well- 
established rule that where a contract is susceptible of two 
meanings, one legal and the other unlawful or contrary to



5

public policy, the former will be adopted so as to uphold 
the contract. Great Northern Railway Co. v. Delmar, 283 
U. S. 686, 691; Belcher Land Mortgage Co. v. Hazard Coal 
Corp., 15 F. 2d 481 (C. A. 6th 1926); Chesapeake d  0. R. Co. 
v. City of Morehead, 223 Ky. 698, 4 S. W. 2d 726 (1928) ; 
Leslie County v. Maggard, 212 Ky. 354, 279 S. W. 335 (1926); 
17 0. J. S., Contracts, Sec. 318.

2. Petitioner reasserts that the decisions in Lawrence 
v. Hancock, 76 F. Supp. 1004 (S. D. W. Va. 1948); Culver 
v. City of Warren, 84 Ohio App. 373, 83 N. E. 2d 82 (1948); 
and Kern v. City Commissioners, 151 Kans. 565, 100 P. 2d 
709 (1940), are in sharp conflict with the instant case, not­
withstanding respondent’s attempt to harmonize them. In 
all cases Negro citizens were denied the use of a public 
facility by the use of a leasing arrangement. Any factual 
distinction between the cases rests on the differences between 
a swimming pool and an outdoor amphitheatre. A swimming 
pool is useful only in the summer. On the other hand, an 
outdoor amphitheatre has some usefulness in the other 
seasons, although its period of principal utility is certainly 
the summer months—the period covered by the leases be- 
tween the City and respondent. Such a distinction between 
the instant case and Lawrence, Culver and Kern is hardly 
significant.

The instant case in fact presents a much stronger 
picture of state action violative of the 14th Amendment 
than that in any of the swimming pool cases. In the latter 
cases, as well as in Harris v. City of St, Louis, 233 Mo. App. 
911, 111 S. W. 2d 995 (1938), each of the lessees formulated 
its own admission policy. No state policy—no state regula­
tion no state action of any kind was the immediate cause 
of the refusal to admit Negroes. In the instant case, how­
ever, City regulations require racial segregation in the use 
of the City’s parks and Iroquois Park is designated for the 
exclusive use of white persons (P. 44). Significantly,



6

respondent, in answer to our fourth reason for the allow­
ance of this writ, does not deny this. Thus, respondent’s 
refusal to admit petitioner Muir and other Negroes was 
required by state law; and in so acting-, respondent clearly 
acted as an instrumentality of the state in carrying out 
state policy. Nixon v. Herndon, 273 U. S. 536; cf. Civil 
Hights Cases, 109 U. S. 3, 17; Public Utilities Commission 
of the District of Columbia v. Poliak, 343 U. S. 451; 461-62; 
Nash y. Air Terminal Services, 85 F. Supp. 545, 549 (E. D. 
Va. 1949).

A  recent occurrence highlights this point. In June, 1953, 
there was presented at Iroquois Amphitheatre for a three- 
week run a musical drama based on the life of President 
Lincoln. To these performances Negroes were admitted. 
The New York Times reported on June 18,1953 that Mayor 
Charles P. Farnsley of Louisville had temporarily lifted 
“ [t]he historic ban against admitting Negroes to Louis­
ville’s white city parks”  (p. 38, col. 1). This serves to 
dramatize the crucial fact that it is city policy and city action 
which determines whether, if at all, Negroes are admitted to 
Iroquois Amphitheatre. In the light of this, respondent’s 
contention that there is no showing that petitioner has been 
denied the use of the Amphitheatre becomes especially 
transparent.

The conclusion thus becomes inescapable that when 
respondent denied petitioner admittance to the Amphi­
theatre, it acted for the state and under color of state law.



7

Conclusion,

W herefore, f o r  the reasons h ereinabove stated, it is 
resp ectfu lly  subm itted that the petition  fo r  a w rit o f  ce rti­
ora r i should be granted .

Respectfully submitted,

R obert L. Carter, 
T hurgood M arshall , 
B e n ja m in  F. S hobe, 

Counsel for Petitioner.

E lwood H. Ch iso lm ,
D avid E . P in e r y ,

of Counsel.

Dated: September 14, 1953.