Tonkins v. City of Greensboro Brief for Appellants

    In th e

S t a t e s  (£nwt n f  A p p r a l s

F oe the F ourth Circuit 

No. 8025

Deloris T onkins, et al.,

Plaintiffs-Appellants,

City of Greensboro, et al., and The Greensboro P ool 
Corporation, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS

J. K enneth Lee 
Major S. H igh

427 Bembow Road 
Greensboro, North Carolina

C. 0. P earson

203% East Chapel Hill Street 
Durham, North Carolina

Constance Baker Motley 
T hurgood Marshall 

10 Columbus Circle 
New York 19, N. Y.

Attorneys for Appellants



I N D E X
PAGE

Statement of the Case ............................... ........................  1

Question Presented ..............    4

Statement of the F a cts ................... ................................... . 5

Argument ..............................................    18

Greensboro City Charter, §100 .......    29

Table oe Cases

Aaron v. Cooper, 261 F. 2d 97 (8th Cir. 1958) ...........  27
Aaron v. McKinley, 173 F. Supp. 944 (E. D. Ark. 1959) 28

Baskin v. Brown, 174 F. 2d 391 (4th Cir. 1959) ...........  26

Cooper v. Aaron, 358 U. S. 1, 19 ............... ...................  27

Guinn v. United States, 238 U. S. 347 ........................... 26

James v. Almond, 170 F. Supp. 331 (E. D. Va. 1959) 28
James v. Duckworth, 170 F. Supp. 342 (E. D. Ya. 

1959), aff’d 267 F. 2d 224 (4th Cir. 1.959), cert, 
den. October 12, 1959, 28 L. W. 3110 ........................... 28

Lane v. Wilson, 307 U. S. 268 ....................................... 26
Lawrence v. Hancock (S. D. W. Va. 1948), 76 F. Supp.

1004 .................................................................................... 24

Nixon v. Condon, 286 U. S. 7 3 ....... .................................... 26
Nixon v. Herndon, 273 U. S. 536 ................................... 26

Bice v. Elmore, 165 F. 2d 387 (4th Cir. 1947) ...........  26



11
PAGE

Selmell v. Davis, 336 U. S. 933, affirming 81 F. Supp.
872 (S. D. Ala. 1949) ..... ......................... .................... 26

Simkins v. City of Greensboro, 149 F. Snpp. 562 (M. D.
N. C. 1957), aff’d 246 F. 2d 425 (4th Cir. 1957) ....6,18, 25 

Smith v. Allwright, 321 U. S. 649 ................................... 26

Terry v. Adams, 345 TJ. S. 461 ......................................  26

Other A uthorities

Private Laws North Carolina, Extra Session, 1924, 
eh. 9; Private Laws North Carolina, 1927, ch. 230 .... 29



I n  th e

United States (Emcrt of
F ob the F ourth Circuit 

No. 8025

Deloris T onkins, et al.,

Plaintiffs-Appellants,

City of Greensboro, et al., and T he Greensboro P ool 
Corporation, et al.,

Defendants-Appellees.

BRIEF FOR APPELLANTS

Statement of the Case

Invoking the jurisdiction of the court below pursuant 
to the provisions of Title 28, United States Code, §1343(3), 
appellants, who are all adult Negro residents of the City 
of Greensboro, North Carolina, brought this action against 
their city to secure their right, protected by the Constitu­
tion and laws of the United States, to use the city’s Lindley 
Park Swimming Pool upon the same terms and conditions 
applicable to white residents.

The original complaint, filed on the 31st day of March 
1958, followed the City Council’s rejection of a petition 
signed by 26 Negro residents requesting use of the pool 
and the Council’s resolve to dispose of the pool because 
of its belief that “ joint use of the swimming pools owned 
by the city at any time in the foreseeable future would



2

inevitably and gravely disrupt the existing harmonious 
relations between the races.” The relief sought was an 
injunction enjoining the city from refusing to permit 
appellants, and members of their class, to use the pool, 
solely because of their race and color, and enjoining the 
city from selling the pool for the sole purpose of defeating 
the constitutional rights of Negro citizens. With the filing 
of their original complaint, appellants moved for a pre­
liminary injunction enjoining the proposed sale of the 
pool at public auction on April 1, 1958.

Thereafter, on April 8, 1958, when the motion for pre­
liminary injunction came on for hearing, appellants filed 
an amended complaint. At this time the April 1 auction 
sale had taken place, but the bid had not been approved 
by the City Council, the Council having reserved to itself 
the right to accept or reject any bids. On April 8, the city 
also moved to dismiss the original complaint for failure 
to state a claim upon which relief could be granted. Both 
motions were heard on April 8, and by agreement the 
motion to dismiss the original complaint was considered 
as a motion to dismiss the complaint as amended.

On April 8, 1958, following hearing on these motions, 
the City Council rejected the bid which had been made at 
the April 1st auction. As a result, by stipulation, the court 
below postponed immediate ruling on the motions and gave 
the parties additional time to file briefs.

Thereafter, on May 23, 1958, the court below rendered 
its opinion which is reported at 162 F. Supp. 549 and ap­
pears in the appendix to this brief pages lla-28a. In its 
opinion the court ruled that appellants were not entitled 
to injunction enjoining sale of the pool because the city 
clearly had the power to sell, the purpose for doing so not 
being material to the exercise of this power, and because



3

there is no duty on the city to maintain a swimming pool. 
The court, however, deferred entry of a decree dismissing 
the suit for a period of thirty days after the second sale of 
the pool had been confirmed by the city for the purpose 
of allowing appellants to show “ that the sale was not bona 
fide in the sense that there was collusion between the de­
fendants and the successful bidder regarding* the future 
use of the pool.”

On June 3, 1958, the city, by its manager, sold the pool 
at public auction to appellee Greensboro Pool Corporation, 
organized as a business corporation under the laws of 
North Carolina on March 4, 1958 for the sole purpose of 
purchasing the Lindley Park Swimming Pool and continu­
ing its operation as a pool open to the white public of 
Greensboro only. Two days later, June 5, 1958, the sale 
to said corporation was approved by the City Council.

Thereafter, by order of the court below, appellants filed 
a supplemental complaint in this cause on September 5, 
1958 alleging, in substance, that there was collusion be­
tween the officers of appellee city and the officers of appel­
lee Greensboro Pool Corporation with respect to the sale 
and future use of the pool and seeking an injunction en­
joining the Greensboro Pool Corporation and its officers 
as well as the city from continue to exclude Negroes from 
Lindley Park Swimming Pool. The Greensboro Pool Cor­
poration and its three officers were made parties-defendant 
by the supplemental complaint. All defendants filed an­
swers to the supplemental complaint denying the essential 
allegations therein.

This cause came on for hearing on the issues as thus 
joined on the 26th day of February 1959. At that time, a 
number of stipulations were entered into between the par­
ties; depositions and other documents were received in 
evidence; and oral testimony was presented.



4

On August 13, 1959 the court below rendered another 
opinion in this case holding that appellants had failed to 
prove that the sale was not bona fide or that the City of 
Greensboro had any agreement of any kind with the Greens­
boro Pool Corporation relating to the future use or opera­
tion of the pool. This opinion is reported at 175 F. Supp. 
476 and appears in the appendix to this brief pages 3a-10a.

On the 11th day of September 1959, the court below 
entered an order in conformity with said opinion dismissing 
the complaint, as amended and supplemented, denying all 
relief prayed for by appellants and dismissing the action 
finally as to all appellees (Appendix p. la ). On the 12th 
day of October 1959, appellants filed their notice of appeal 
to this court from the entry of said order.

Question Presented

The question presented by this appeal is :

1. Whether, under all the facts of this case, appellants, 
and members of their class, may continue to be excluded 
from the Lindley Park Swimming Pool solely because of 
their race and color.

Some of the facts set forth below do not appear in the 
opinions of the court below. Therefore, appellants have 
printed in an appendix hereto those portions of the deposi­
tions and other testimony of the officers of the appellee 
Greensboro Pool Corporation and those portions of the 
depositions of certain city officials which establish these 
omitted, uncontradicted facts which appellants deem rele­
vant to a determination of the question presented on this 
appeal. Appropriate page references to the appendix 
have been inserted. Some of the omitted facts were also 
established by exhibits received in evidence by the court



5

below and, therefore, appropriate references to these ex­
hibits, sent up to this court as a part of the record on 
appeal, have also been inserted in the statement of the 
facts.

Statement of the Facts

Just prior to the institution of this action, the City 
of Greensboro owned and operated two swimming pools 
— one known as the Nocho Park Swimming Pool and the 
other known as the Lindley Park Swimming Pool, herein­
after referred to as Nocho Pool and Lindley Pool.

Sometime during the year 1937, the city constructed 
the Nocho Pool. The cost of construction is not available. 
This pool was operated by the city for the exclusive use 
of its Negro residents from 1937 to November 18, 1957 
when the City Council voted to offer this pool for sale 
along with the Lindley Pool. Although this fact does 
not appear in the record, it appears that the Nocho Pool 
was part of a federal Works Progress Administration 
(W PA) project. For a period of three years prior to the 
institution of this suit, the city expended $12,635.70 on 
the operation of Nocho Pool and received in revenue there­
from $5,254.90.

The Lindley Pool was constructed by the city during 
the winter of 1954 to 1955 and was open to the public in 
May 1955. The cost of constructing and equipping this 
pool was $214,958.31, exclusive of the value of the land. 
Statutory authority for the construction of this pool as 
a function of city government stems from the provisions 
of §160-156 General Statutes North Carolina. For the 
three year period prior to tiling suit, the city expended 
$33,412.56 in the operation of the Lindley Pool and re­
ceived $48,220.04 in revenue. Lindley Pool was limited



6

to use by the white residents in conformity with the racial 
segregation policy which obtained in other municipally 
owned recreational facilities. See, e.g., Simkins v. City 
of Greensboro, 149 F. Supp. 562 (M. D. N. C. 1957), aff’d 
246 F. 2d 425 (4th Cir. 1957).

Since Lindley Pool was constructed by and was under 
the supervision of the city’s Parks and Recreation Com­
mission, a group of Negro citizens appeared before this 
Commission soon after its first season on December 14, 
1955 and requested that the Negro citizens of the com­
munity be allowed to use the pool also. Whereupon, the 
Commission voted to continue the use of the pool for 
white citizens exclusively (Plaintiffs’ Exhibit 17).

Following this court’s decision of June 28, 1957 in the 
Simkins case, supra, upholding the right of the Negro 
residents of Greensboro to use Gillespie Park Golf Course, 
a municipally owned recreational facility leased to a pri­
vate club, upon the same terms and conditions applicable 
to white residents, the Mayor brought to the attention 
of the City Council the petition signed by 26 Negro resi­
dents requesting that Lindley Pool be open to Negroes. 
At this meeting, which took place on July 15, 1957, the 
Council resolved to continue the policy of operating Lind­
ley Pool for the exclusive use of the white race only for 
the remainder of the 1957 season, on the ground that 
“ joint use of the pool at this time might disrupt rela­
tions between the races which have been harmonious until 
now.” The Council’s resolution also provided that before 
the 1958 season the Council would give earnest considera­
tion to the problem raised in the petition.

Thereafter, on September 16, 1957, Dr. R. M. Taliaferro 
(president of the subsequently formed appellee corpora­
tion) was appointed to the Parks and Recreation Com­
mission by the City Council.



7

On October 7, 1957 when the swimming pool season had 
ended, the City Council adopted a resolution which pro­
vided, in part, as follows:

“ . . .  it now appears that the joint use of the swim­
ming pools owned by the city at any time in the fore­
seeable future would inevitably and gravely disrupt 
the existing harmonious relations between the races, 
and the present investments in such facilities might 
more beneficially be liquidated and reinvested in a 
type of recreational facility offering service and en­
joyment to a greater portion of the population of 
the City than that now benefiting from the operation 
of the swimming pools;

“ Now, therefore, be it resolved by the City Council 
of the City of Greensboro:

“ That a public hearing be held on October 21, 1957, 
at 4:00 P.M., in the Council Chamber, City Hall, for 
the purposes of obtaining the views of the residents 
of the City of Greensboro as t o :

“ 1. Their concurrence in the discontinuance of the 
operation of swimming pools as a function of the 
City Government and their disposal as property of 
the city.

“ 2. The type of recreational facility or activity 
most widely desired, if any, in substitution thereof.”

On October 10, 1957, following the adoption of this 
resolution, the Parks and Recreation Commission, to which 
Dr. Taliaferro had just been appointed, held a meeting. 
The Commission took note of the fact that the City Coun­
cil had passed a resolution regarding the operation of 
municipal swimming pools. This resolution was discussed 
by the Parks and Recreation Commission. Dr. Taliaferro



8

was present and participated in this discussion. After 
this discussion, the Commission’s December 1955 resolu­
tion affirming segregated operation of swimming pools 
was reaffirmed (Plaintiffs’ Exh. 18).

In accordance with the City Council’s resolution of Octo­
ber 7, 1957, a public meeting was held on October 21, 1957. 
At this meeting several citizens voiced their opinions re­
garding the proposal of the Council to discontinue opera­
tion of the pools in view of the petition received from the 
26 Negro citizens. Dr. Taliaferro spoke at this meeting. 
He presented himself as president of the Greensboro 
Swimming Association (a voluntary private association 
not a party to this action). Dr. Taliaferro stated that 
the Association was of the opinion that the pools could 
not be operated by the city on an integrated basis and, 
therefore, the pool should be sold or given as a “ gift” to 
some other private group to operate on a segregated basis 
(Appendix p. 63a). Other members of the Association 
also spoke at this hearing and likewise made it clear to 
the Council that the Association approved of the Council’s 
position (see Minutes of 10/21/57).1 Appellee Weaver, 
who is the secretary-treasurer of appellee Greensboro 
Pool Corporation, was also present at this meeting, was 
then a member of the Greensboro Swimming Association, 
and is now its president (Appendix p. 94a). No vote was 
taken by the City Council at this meeting regarding dis­
position of the pools, although a majority of the speakers 
favored such disposition. The Council merely listened 
to the views expressed at this meeting.

After this meeting, Dr. Taliaferro met Mr. Elbert 
Lewis, a member of the City Council who was present

1 Minutes of the City Council, filed from time to time by the attorney 
for the city in the court below, which relate to the sale of the swimming 
pools have been sent up to this court as a part of the record on appeal.



9

at the October 21, 1957 meeting and heard Dr. Taliaferro 
speak. Dr. Taliaferro and Mr. Lewis both admit that 
they talked about Dr. Taliaferro’s plans to form a group 
to purchase the Lindley Pool and that Dr. Taliaferro 
specifically advised Mr. Lewis of his desire to keep the 
pool open and operating as a white public pool (Appendix 
pp. 42a-43a, 132a-135a). At the time that the Lindley 
Pool was constructed, Mr. Lewis was chairman of the 
Parks and Recreation Commission (Appendix p. 125a).

On November 18, 1957, the City Council adopted a 
resolution providing for the sale of both pools. This 
resolution expressly referred to the October 21 meeting 
and stated, in part, that “ . . . the City Council has ear­
nestly considered the views expressed at that hearing . . . ”

After sale of the pools was announced, Dr. Taliaferro 
led the drive in the community to form a group to take 
over the operation of the Lindley Pool (Plaintiffs’ Exhibit 
21). The Greensboro Swimming Association, of which ap­
pellee Weaver was then president and Dr. Taliaferro a 
member of its executive committee (Appendix pp. 54a, 
96a), distributed a leaflet in the community containing a 
blank form to be filled out by persons interested in form­
ing a group for the express purpose of purchasing Lindley 
Pool and operating it as the city had operated it (Plain­
tiffs’ Exh. 19). The forms which 'were filled out and re­
turned to the Association wmre subsequently turned over 
by it to appellee Greensboro Pool Corporation which was 
subsequently incorporated by Dr. Taliaferro and appellees 
Weaver and Coble (Appendix p. 180a).

On January 22, 1958, the City Council adopted another 
resolution setting the date of the sale of both pools for 
the 18th day of March 1958.

On March 4, 1958 appellee Greensboro Pool Corporation 
was chartered as a business corporation with $100,000



10

authorized capital stock (Appendix p. 31a). In this con­
nection it is significant that Mr. Lewis, when pressed for 
an opinion as to what he thought the city should get for 
Lindley Pool, responded that he thought the City should 
get $100,000 from the sale of the pool (Appendix p. 129a). 
Dr. Taliaferro and appellees Weaver and Coble are the 
only officers of the corporation. Dr. Taliaferro is the 
president, Weaver is the secretary-treasurer and Coble is 
the vice-president. These officers also constitute the board 
of directors. And these three officers own the only voting 
stock (Appendix pp. 31a, 52a). The corporation has had 
only one meeting since its incorporation (Appendix p. 175a). 
This meeting took place on March 4, 1958, the day on which 
the corporation was chartered (Plaintiffs’ Exh. 5). At 
this meeting the officers were elected. Dr. Taliaferro was 
authorized at this meeting to bid $85,000.00 for the pur­
chase of Lindley Pool, although the corporation at the 
time had no money (Appendix pp. 34a-35a, Plaintiffs’ Exh. 
7). The corporation has not met since the March 4, 1958 
organization meeting and, admittedly, all of the business 
of the corporation since that date has been carried on 
by Dr. Taliaferro (Appendix pp. 175a-176a).

A  letter on official stationery (Appendix p. 73a) dated 
March 31, 1958 from the Mayor to Dr. Taliaferro reveals 
that sometime prior to that date Dr. Taliaferro wrote a 
letter to the Mayor seeking a postponement of the date 
of the sale of the pool. The Mayor replied that the date 
could not be changed, but that “ The end result can be 
accomplished without delaying the proposed sale” (Plain­
tiffs’ Exh. 8). When asked to explain this sentence, the 
Mayor replied: “ A. I have often wondered myself what 
I meant. It was that I wanted everybody to have an op­
portunity to bid on the pool” (Appendix p. 161a). By 
action of the City Council, the date of the sale was changed 
from March 18 to April 1 by resolution dated February



11

3, 1958. Dr. Taliaferro had apparently sought another 
change in the sale date to enable his corporation to raise 
funds with which to purchase the pool, but see the testi­
mony of Dr. Taliaferro, himself, as to when he sent his 
letter with relation to the first and second sale (Appendix 
p. 75a). Dr. Taliaferro never produced a copy of the 
letter which he wrote to the Mayor requesting postpone­
ment or the original of the Mayor’s letter to him (Appendix 
pp. 72a-74a). He claimed that he had lost his copy. The 
Mayor testified that he could not produce the original 
because he had “ handed it back” to Dr. Taliaferro (Ap­
pendix p. 160a). The original had been officially received 
by the City Clerk (Appendix p. 161a). On the other hand, 
Dr. Taliaferro’s statement regarding the letter, which was 
taken prior to the Mayor’s testimony, did not even suggest 
that the Mayor had returned the original to him or that 
he had met the Mayor at which time the letter was handed 
back or that he had talked to the Mayor over the telephone 
regarding a postponement, as the Mayor had testified 
(Appendix pp. 160a-163a). In fact, Dr. Taliaferro testified 
repeatedly that he stayed away from city officials for fear 
of involvement with them in connection with the sale of 
the pool (Appendix pp. 66a, 74a). Dr. Taliaferro also 
testified that in his letter to the Mayor he told him in sub­
stance: “ We were trying to raise money, and as I said 
before, as far as we knew, we didn’t know whether there 
were any other purchasers; got a letter back from him 
saying no. It was not an official letter or anything of that 
sort, because when I tell you what I told you before about 
not going to them, that is correct” (Appendix p. 74a).

The first public auction of both pools took place on April 
1, 1958. Dr. Taliaferro’s high bid was only $65,000 for the 
purchase of Lindley Pool although he had been authorized 
to bid a high of $85,000. At this sale, much to everyone’s



12

surprise, a bidder from outside of the city appeared and 
began outbidding Dr. Taliaferro. His bid of $75,000 for 
the pool was the high of the day. Nevertheless, Dr. Talia­
ferro stopped bidding (Appendix p. 36a). His corporation 
at that time had practically no assets with which to pur­
chase a pool. No stock had actually been issued and as of 
June 27, 1958 the corporation had actually sold by way of 
paid-in subscriptions less than 25% of its authorized stock 
subscription of $100,000. And at the time it made its bid 
of $85,000 at the second sale, the corporation had only 
$8,000 in cash with which to make the required 25% down 
payment (Appendix pp. 50a, 58a).

On April 8 the City Council turned down the bid of 
$75,000 on the Lindley Pool and the bid of $9,550 on the 
Nocho Pool as “ inadequate,” although it was community 
common knowledge that Dr. Taliaferro’s group was the 
only local group making an effort to purchase the Lindley 
Pool (Plaintiffs’ Exhs. 20 and 21) and the Mayor had been 
so advised in the letter written to him by Dr. Taliaferro. 
Thereafter, on April 30, 1958 a resolution was adopted 
by the City Council providing for a second sale of both 
pools on June 3, 1958.

On May 23,1958, the court below handed down its opinion 
holding that appellants were not entitled to an injunc­
tion enjoining sale of Lindley Pool and that appellants 
had failed to state a claim upon which relief could be 
granted. However, it deferred entry of a decree for a 
period of thirty days after the sale to allow plaintiffs 
to show that the sale was not bona fide in the sense that 
there was collusion between the city and the successful 
bidder regarding the future use of the pool.

Thereafter, on June 3, the second auction sale was 
held. This time Dr. Taliaferro, without any real com­
petitive bidding, bid the $85,000 which he had been an-



13

thorized to bid.2 Two days later, the City Council passed 
a resolution accepting the bid of $85,000; two eouneilmen 
dissented (Plaintiffs’ Exh. 15). The resolution had been 
introduced by Lewis, the councilman to whom Dr. Talia­
ferro had spoken concerning his plan to organize a group to 
purchase the pool, the man who was chairman of the 
Parks and Recreation Commission when Lindley Pool 
was constructed, the man who had previously worked with 
Dr. Taliaferro in sponsoring swimming contests in Lindley 
Pool, and the man whose opinion as to the amount which 
the city should receive from the sale of the pool coincided 
with the amount of the total capitalization of Dr. Talia­
ferro’s corporation.

A down payment of 25 % of the purchase price was 
required by the terms of the sale. However, Dr. Talia­
ferro’s corporation did not in fact possess sufficient assets, 
either in capital, cash, stock subscriptions or other prop­
erty to enable it to make the 25% down payment (Ap­
pendix p. 58a). It was able to complete the 25% down 
payment on June 18, 1958 when it received a deed from 
the city to the pool property as a result of a loan of 
approximately $6,000 from one of its officers, appellee 
Coble (Appendix p. 81a). Appellee Coble is a general 
contractor who, admittedly, has no interest in swimming 
but who, in the past and at present, had and has valuable 
construction contracts with the city (Appendix p. 76a). 
He made a loan to the corporation, not from his personal 
funds, but from the funds of his construction company 
(Appendix p. 82a).

2 A bid was made for Noeho Pool -which was not completed and since 
that time Nocho Pool has remained closed with no further action with regard 
thereto (Appendix pp. 158a-159a).



14

In accordance with the terms of the sale, the balance 
of the purchase price could be paid in five equal annual 
installments with interest at 6%. Since the corporation 
was not financially able to pay the full purchase price 
at the time of the transfer of the title, it was necessary 
for the corporation to take advantage of the liberal sale 
terms. A deed of trust was therefore executed by the 
corporation, in which one of the attorneys for the city 
is named trustee, to secure payment of a note for the 
balance of the purchase price. By terms of the deed of 
trust, title to Bindley Pool remains in the trustee until 
reconveyed to the corporation after the full purchase price 
has been paid, plus interest and other amounts which 
may have been expended by the trustee or the city, or 
until such time as the property has been conveyed to the 
purchaser after a foreclosure sale. In the event of failure 
or neglect on the part of the corporation to pay any 
installment due on the note for a period of ten days, the 
holders of the note, in this case the city, may, at their 
option, declare the whole sum due and payable and, upon 
application of the city, the trustee is authorized to sell 
the property to satisfy the amount due (Plaintiffs’ Exh. 10).

At the time of the hearing on the supplemental complaint, 
the financial statement of the corporation showed that it 
had, as of December 31, 1958, by way of cash in the bank, 
$62.16 (Plaintiffs’ Exh. 12). Dr. Taliaferro testified that 
since December 31, 1958 he had received additional stock 
subscriptions bringing the total cash in the bank to about 
$300.00 (Appendix p. 167a). The corporation’s first annual 
installment of $12,750.00, plus 6% interest, on the pur­
chase price of the pool was due on July 1, 1959. In addi­
tion, the corporation had, at the time of the final hearing, 
outstanding loans of $6,585.00 (Plaintiffs’ Exh. 12).

When the pools were first offered for sale, the question 
arose as to whether a local zoning ordinance, restricting



15

activities in residential zones to activities “ operated on a 
non-profit basis,” would be applicable to the purchaser of 
Lindley Pool. The high bidder at the first sale was not 
informed of this restriction, but the GPC was, although 
the city had not announced any such restriction prior to 
the first sale (Appendix p. 39a). After the first sale, the 
City Council gave consideration to the question and ex­
pressly considered the effect which this ordinance would 
have on prospective bidders at the second sale. The Finance 
Committee of the Council, to which the matter was re­
ferred, recommended that the ordinance not be changed 
and the majority of the Council approved this recommen­
dation (see Minutes of April 30, 1958). Two eouncilmen 
voted no. However, several months after the sale of the 
pool, on November 3, 1958, the City Council did change 
the language of the ordinance which read “ operated on 
a non-profit basis”  to read “ operated by clubs or other 
organizations, no part of the net earnings of which inures 
to the benefit of any private person, corporation, or share­
holder”  (Defendants’ Exh. 1). When the corporation so­
licited sales of stock from the public it advised: “ The pool 
shall be run in a businesslike manner, making charges 
for admission as are necessary and possibly pay a return 
on your investment. There will be no memberships or 
dues. Admission by fees as above” (Plaintiffs’ Exh. 20).

At the first auction of the pool on April 1, 1958, the 
attorney for the city was present along with the appellee 
city manager. At this time the city attorney, in the 
presence of the city manager, assured Dr. Taliaferro that 
if the court below should hold in the instant case, which 
was then pending in that court, that the city could not 
sell Lindley Pool, as contended by appellants, the city 
would refund any money paid down on the purchase price 
(Appendix pp. 44a-45a). Appellants had filed a lis pendens 
in the state court (Appendix p. 182a). Dr. Taliaferro



16

had previously appeared before a public meeting of the 
City Council and requested the Council to advise whether 
the purchaser’s money would be thus refunded, but the 
Council would not reply (Appendix p. 44a). The under­
standing between Dr. Taliaferro and the city attorney, 
made in the presence of the city manager, was therefore an 
understanding apart from the terms of the sale and an 
understanding not generally shared by the public. Ap­
pellants’ challenge to the city’s power to sell the pool had 
been widely publicized and there was so much doubt as 
to the legality of the city’s action that, as the court below 
pointed out, the pendency of the litigation had affected 
the corporation’s ability to sell shares (Appendix p. 184a).

On June 19, 1958, the appellee corporation resumed 
operation of the Lindley Pool for the general admission 
of the white public, nominal admission fees of 15, 30 and 
50 cents being charged (Appendix pp. 50a-51a, 70a). The 
pool had been closed since the end of the 1957 session. 
It is the announced policy of the appellee corporation 
not to admit Negroes to the pool, in promised conformity 
with the city’s policy. The corporation’s policy was set 
forth in a leaflet distributed by the officers of the corpora­
tion in the Greensboro community:

Greensboro Pool Corporation is made up of a group 
of community minded persons who are trying to 
purchase the pool from the City so that it can be main­
tained as a white public pool for all of those young­
sters who are not fortunate enough to be either mem­
bers of a Country Club or live in a community united 
enough to build their own pool (Plaintiffs’ Exh. 20).

In addition to the facts set forth above, appellants ask 
this court to take judicial notice of a former provision of the 
Charter of the City of Greensboro which appellants failed



17

to ask the court below to take judicial notice of but which 
was in effect at the time of the sale. This provision is 
former Section 100 of said Charter which made it a misde­
meanor for an officer of the city or a corporation or firm 
in which an officer has an interest to enter into any con­
tract or agreement with the city or buy any goods or prop­
erty from the city. (Private Laws N. C., Extra Sess. 1924, 
Ch. 9; Private Laws N. C., 1927, Ch. 230).3

3 Charter recently amended by Session Laws of North Carolina, 1959, 
Chapter 1137. Section 100 has been deleted from the revised charter and a 
new provision dealing with conflict o f interest provided. Article 2, Snbchapter 
D, Sec. 4.131. This court may take judicial notice of matters o f common 
observation, o f statutes, records or public documents not included in the find­
ing of lower courts. New York Indians v. United States, 170 U. S. 1, 32; 
Jackson v. Denver Producing Refining Co., 96 F. 2d 457 (10th Cir. 1938) 
( City charter provision).



18

A R G U M E N T

I.
The court below should have found the additional 

uncontroverted facts set forth above and should have 
enjoined all appellees from continuing to exclude ap­
pellants from Lindley Pool solely because of their race 
and color.

Appellants complain to this court that immediately fol­
lowing this court’s decision in Simians v. City of Greens­
boro, 246 F. 2d 425 (1957), the Greensboro City Council 
considered a petition by Negro residents requesting that 
Negroes be permitted to use the facilities of Lindley Pool. 
The Council denied this request, continued operation of 
Lindley Pool as a white public pool for the remainder of 
the 1957 season, and then entered into a sales arrange­
ment, the purpose and effect of which has been to continue 
Lindley Pool as a recreational facility available to any 
member of the white public.

The relief sought by appellants in their supplemental 
complaint was an injunction enjoining the Greensboro Pool 
Corporation and its agents as well as the City of Greens­
boro and its agents from continuing to exclude appellants 
from Lindley Pool solely because they are Negroes. This 
relief was sought on the ground that exclusion of Negroes 
from Lindley Pool results from an understanding between 
the corporation and the city that the pool would be sold 
to this particular corporation for a nominal sum in return 
for which the corporation would continue the public nature 
of the pool and the city’s racial policy in order to preserve 
harmonious relations between the races in Greensboro.

On this appeal appellants contend that the court below 
erred in not finding certain additional uncontroverted facts



19

which establish conclusively the collusive nature of the 
sale arrangement and abused its discretion in refusing to 
enjoin the continued exclusion of Negroes from Lindley 
Pool.

Appellants, therefore, ask this court to review all the 
facts in this case, and after such review and concurrence 
in appellants’ position, direct the court below to enter 
an order enjoining all appellees from refusing to permit 
appellants and members of their class to use Lindley Pool 
upon the same terms and conditions applicable to white 
residents.

Appellants contend that the totality of the uncontro­
verted facts leads to the inescapable conclusion that there 
was collusion between city officials and officials of the 
Greensboro Pool Corporation with respect to the sale and 
future use of Lindley Pool. Appellants also contend that 
this conclusion must be reached when these facts are viewed 
against the background of common knowledge about the 
perennial attempts of legislative bodies of southern states 
and communities to evade the impact of federal decisions 
on racial segregation policies in the area of publicly owned 
facilities.

The primary fact evidencing collusion in this case is 
the fact that the man who organized the corporation 
to which the city sold Lindley Pool is one of the city’s 
own officials. Dr. Taliaferro was not only the organizer 
of that corporation, but is also the president of the Greens­
boro Pool Corporation. He is one of a three-man board 
of directors'of the corporation who own the only voting 
stock. According to the local press, Dr. Taliaferro had 
said that the board would be chosen from persons who 
have expressed an interest in keeping the pool open as 
a white facility (Plaintiffs’ Exh. 21). In addition to being 
the organizer and president of the corporation, the facts



20

reveal that this city official is the prime mover of all cor­
porate activity inasmuch as the corporation’s board of 
directors has not met since the corporation’s organizational 
meeting of March 4, 1958 and since Dr. Taliaferro and 
the other two board members own all the voting stock. 
Not only is Dr. Taliaferro an official of the city, per se, 
but he is an official who, as a member of the Parks and 
Recreation Commission, had direct supervision over the 
Lindley Pool, itself, and participated in the reaffirmation 
of the racial segregation policy applicable to Lindley Pool 
when the question was raised in the Commission on 
October 10, 1957, following this court’s decision in the 
Simkins case, supra. In short, the corporation to which 
the city sold the pool in controversy is a corporation 
formed by an officer of the city who, in his official capacity, 
dealt with the pool and enforced the very policy of segre­
gation with respect to the pool which is challenged by 
appellants in this action.

To this primary fact evidencing collusion must be added 
the many facts cited above, but certain of these facts must 
be re-emphasized here.

In addition to the fact that the corporation to which 
the city sold the pool was formed and is being operated 
and controlled by a city official whose official duties con­
cerned Lindley Pool, it is admitted that the corporation 
was formed for the sole purpose of purchasing the pool 
and continuing its operation as a pool open to the white 
public of the city only, since the city would be compelled 
to admit Negro residents, and that everyone in Greensboro 
knew and understood this.

Since the City Council’s determination to sell the pool 
was based on its conclusion that “ joint use of the swimming 
pools owned by the city at any time in the foreseeable 
future would inevitably and gravely disrupt the existing



21

harmonious relations between the races,” it is clear that 
it intended that the pool be sold only to those committed 
to a whites only policy in order that these so-called har­
monious relations continue. Obviously, if the pool were 
sold to private persons who would admit both Negroes 
and whites, the city’s only reason for selling the pool 
would have been perverted. The city, therefore, had to 
be sure that the persons to whom the pool was sold were 
preservers of segregation. Clearly, in the case of Mr. 
Samet, the man from Mount Airy who was the highest 
bidder at the first sale, and who appeared to everyone’s 
surprise, the City Council could not be sure. But in the 
case of Dr. Taliaferro, their appointee to the Parks and 
Recreation Commission, he had made public his stand.

It was community common knowledge in Greensboro and 
knowledge specifically transmitted to the Mayor by Dr. 
Taliaferro that Dr. Taliaferro’s group was the only group 
in Greensboro making any effort to purchase the pool. 
At the first auction sale both the attorney for the city 
and the city manager were present and knew, of their 
own knowledge, that in addition to the stranger from 
outside the city who made the high bid of $75,000, Dr. 
Taliaferro made the only other bids (Appendix pp. 146a- 
147a). So that when the city rejected the high bid of 
$75,000 for the purchase of Lindley Pool, on the grounds 
of inadequacy, the city knew that other than Dr. Taliaferro 
there were not likely to be any other bidders from whom 
a more adequate price could have been received. And it 
cannot be claimed that few bidders appeared at the first 
sale because insufficient notice of the sale was given since, 
admittedly, the sale complied with state law as to notice 
and the city’s intention to dispose of the pool by sale 
had been publicized since the date of its resolution of 
November 18, 1957. In view of these facts it becomes 
clear that the rejection of the first bid was not a good



22

faith rejection on the ground of inadequacy, but an ac­
commodation for Dr. Taliaferro who wrote the Mayor that 
he needed more time. This also becomes clear when the 
testimony of Mr. Lewis and the Mayor is considered to 
the effect that nobody could make a profit out of the pool 
(Appendix pp. 137a, 153a), and when we consider the 
Council’s action with respect to the ordinance claimed to be 
applicable to Lindley Pool.

After the first sale the question whether the pool would 
be subject to a local ordinance requiring nonprofit opera­
tion of pools in residential areas such as the area in which 
Lindley Pool is located arose. The City Council expressly 
considered the effect that the restriction would have on 
prospective bidders at the second sale and a majority of 
the Council voted to continue the restriction. This action 
can only be construed in the context of this case as an 
action designed to limit the number and character of 
prospective bidders, and especially in view of the Council’s 
rejection of the first high bid on grounds of financial in­
adequacy.

After the first sale on April 1, 1957, there was consider­
able doubt raised in the community as to the legality of the 
proposed sale because of the pendency of this case. It is 
obvious that this doubt then operated to restrict the num­
ber of prospective bidders, but it did not operate to restrict 
the efforts of Dr. Taliaferro because he had been assured 
by the city attorney, in the presence of the city manager, 
that if the court below should hold that the city did not 
have power to sell the pool, as contended by the appellants, 
the money which he had paid down would be refunded 
(Appendix pp. 44a-45a).

Certainly, without this assurance, Dr. Taliaferro could 
not have made a second bid because his corporation would 
have no funds with which to repay persons whose sub­



23

scription funds would be used to purchase the pool. This 
assurance thus gave Dr. Taliaferro an advantage over the 
general public. As far as the general public knew there 
was no such assurance, as Dr. Taliaferro had appeared 
before a public meeting of the Council and requested such 
assurance which was not given.

Once the Greensboro Pool Corporation became the high 
bidder, Mr. Lewis, the councilman to whom Dr. Taliaferro 
had spoken concerning his plans, lost no time in introduc­
ing a resolution in the City Council accepting Dr. Talia­
ferro’s bid which was only $10,000 more than the bid which 
was turned down. The pool was only two years old and 
had cost the city approximately $215,000, exclusive of the 
value of the land. The significance of such quick acceptance 
must also be viewed against the fact that the first bid was 
turned down as inadequate. It must also be viewed against 
the fact that the City Council did not accept the high bid 
of $9,550 for the Nocho Pool and has left that pool stand­
ing closed rather than accept a bid which it considered in­
adequate. The City Council has not taken any action with 
respect to Nocho Pool although the resolution of November 
18, 1957, providing for the sale of the pool, declared that 
the city no longer has any need for this pool. The resolu­
tion also provided that any money received from the sale 
of these pools would provide other recreational facilities 
which would benefit a larger number of people in the com­
munity. The fact is that so little money has been realized 
from the sale of Lindley Pool, since the major part of the 
purchase price is still owed to the city, that the chances 
are that the latter part of the resolution will be forgot­
ten.

Because Dr. Taliaferro’s corporation did not have the 
money with which to pay the full purchase price of the 
pool, the city still has a considerable financial interest in



24

the pool, as evidenced by the note given it for the balance 
due on the purchase price by the corporation and which 
is secured by the deed of trust. In the event of default 
on the part of the corporation with respect to any install­
ment due on the note, the city has the power to declare 
the whole sum due and payable and may request the trus­
tee to sell the pool to pay the amount due. On the other 
hand, it may elect to defer payments or may simply take 
no action.

In any event, continuation of the city’s policy of limit­
ing Lindley Pool to the white public is nevertheless as­
sured, as stated above, because the pool corporation’s only 
reason for being is to continue the operation of Lindley 
Pool as a white public facility.

In conclusion, therefore, the understanding between the 
city and the pool corporation is as follows: The pool would 
be sold to Dr. Taliaferro’s corporation, the only group 
which had been organized by local white citizens for the 
sole, express purpose of taking over the pool and operat­
ing it as it had been operated by the city; the purchase 
price of the pool would be equal to or less than the total 
capitalization of the corporation; if the court should hold 
that the city could not sell the pool, as contended by ap­
pellants, the sale would be rescinded by agreement of the 
parties and the city would refund to the corporation any 
amount paid on the purchase price; in exchange for getting 
the pool at a fraction of its actual cost to the city, the cor­
poration would continue to operate the pool as a public 
pool, charging the usual nominal admission fees, and the 
corporation would continue to enforce the city’s policy of 
limiting use of the pool to the white members of the public 
only, in order to preserve “harmony” between the races.

As the court held in Lawrence v. Hancock (S. D. W. Ya. 
1948), 76 F. Supp. 1004, what has taken place here “ . . .



25

is, clearly, but another in a long series of stratagems which 
governing bodies of many white communities have em­
ployed in attempting to deprive the Negro of his constitu­
tional birthright; the equal protection of the laws” (at 
1008).

The sale of Lindley Pool came about solely as a result 
of the fact that Negro residents of the community peti­
tioned for the right to use it. When the matter was brought 
before the City Council, this court had just handed down 
its decision in Simkins v. City of Greensboro, supra, hold­
ing that Negro residents of Greensboro could not be ex­
cluded from Gillespie Park Golf Course simply because 
the city had entered into a lease arrangement. In that case 
it was charged that the city had entered into that arrange­
ment in order to avoid its duty to operate the course on a 
nonsegregated basis. There too, there had been a petition 
from the Negro community to use the course prior to the 
city’s entering into the lease arrangement. It was thus 
clear to the City Council that the leasing of a public 
recreational facility to a private corporation would not 
defeat the right of Negroes to use such a facility. The City 
Council, therefore, resorted to the kind of sale arrange­
ment which has been entered into here. Apparently relying 
on the language of this court and the court below in the 
Simkins ease that the city, under the terms of the order 
in the Simkins case, could part with ownership of the prop­
erty by bona fide sale, the City Council here resolved to 
dispose of the swimming pool by sale. Of course, a bona 
fide sale might have been effected in this case if the city 
had sold the pool to the high bidder at the first sale, since 
the high bidder at that sale was a person from outside 
the city who had no connection with the city, was not a 
city official, and did not appear to have any real interest 
in continuing the operation of the pool as a pool open to



26

the white public generally but let it be known that he was 
interested in operating the pool for profit as a private club 
(Appendix p. 47a). When the city turned down a bona 
fide bid on the obviously sham ground of inadequacy and 
accepted a bid only slightly higher from one of its own 
officials who had publicly announced that he would con­
tinue the operation of the pool as the city had operated it, 
the sale became one which requires careful scrutiny by the 
courts. A careful scrutiny of the facts here leaves no room 
for sanction by the federal courts which must, under the 
federal civil rights statutes, zealously guard against state 
actions which subvert constitutional guarantees.

The situation here is analogous to the situation involv­
ing the right of Negroes to participate in the election of 
public officials. A  review of some of the federal court 
cases in this area shows that by one stratagem after the 
other southern legislators have sought, unsuccessfully, to 
avoid the impact of the Fourteenth and Fifteenth Amend­
ments on the voting rights of colored citizens. Guinn v. 
United States, 238 U. S. 347; Nixon v. Herndon, 273 U. S. 
536; Nixon v. Condon, 286 U. S. 73; Lane v. Wilson, 307 
U. S. 268; Smith v. AllwrigM, 321 U. S. 649; Schnell v. 
Davis, 336 U. S. 933, affirming 81 F. Supp. 872 (S. D. Ala. 
1949); Rice v. Elmore, 165 F. 2d 387 (4th Cir. 1947), cert, 
den. 333 U. S. 875; Baskin v. Brown, 174 F. 2d 391 (4th 
Cir. 1949); Terry v. Adams, 345 U. S. 461.

In Rice v. Elmore, supra, this court said at 392:

“ The Fourteenth and Fifteenth Amendments were 
written into the Constitution to insure to the Negro, 
who had recently been liberated from slavery, the 
equal protection of the laws and the right to full 
participation in the process of government. These 
amendments have had the effect of creating a federal 
basis of citizenship and of protecting the rights of



27

individuals and minorities from many abuses of gov­
ernmental power which were not contemplated at the 
time. Their primary purpose must not be lost, sight 
of, however; and no election machinery can be upheld 
if its purpose or effect is to deny to the Negro, on 
account of his race or color, any effective voice in 
the government of his country or the state or com­
munity wherein he lives.”

Similarly here, no sale arrangement in which the state 
has a financial or other interest can result in the exclusion 
of Negroes from a public recreational facility where the 
purpose or effect of such arrangement is to deny to the 
Negro, on account of his race or color, an equal oppor­
tunity to participate in the facility. See Cooper v. Aaron, 
358 U. S. 1, 19. The purpose of the City Council in enter­
ing into the sale arrangement here is clear— to keep 
Negroes from swimming in Lindley Pool on the consti- 
tionally invalid ground that racial disharmony will result. 
Cooper v. Aaron, supra. The effect is also clear; any white 
residents of Greensboro may still swim in Lindley Pool— 
a pool constructed with the tax monies of all the residents 
of Greensboro, Negro and white. As the Mayor said in 
his letter to Dr. Taliaferro: “ The end result can be accom­
plished without postponing the sale.”

The situation here is also analogous to the situation 
in the School Segregation Cases wherein the federal courts 
are now dealing with one stratagem after the other de­
signed by southern legislators to evade the effect of the 
Supreme Court’s decisions in those cases. These devices 
have included attempts to lease school buildings and pay 
tuition of pupils to attend so-called private schools and 
attempts to close schools. All of these attempts to deny 
Negro rights have been struck down by the federal courts. 
Cooper v. Aaron, supra, Aaron v. Cooper, 261 F. 2d 97



28

(8th Cir. 1958); James v. Almond, 170 F. Supp. 331 (E. D. 
Va. 1959); James v. Duckworth, 170 F. Supp. 342 (E. D. 
Ya. 1959), aff’d 267 F. 2d 224 (4th Cir. 1959), cert. den. 
Oct. 12, 1959, 28 L. W. 3110; Aaron v. McKinley, 173 F. 
Supp. 944 (E. D. Ark. 1959).

Similarly here, this court must once again secure the 
right of Negro residents of Greensboro to participate in 
public recreational facilities against this latest attempt by 
their city to defeat their right to so do as this court did 
in the Simkins case.

CONCLUSION

For all of the foregoing reasons, the judgment below 
should be reversed, and the court below directed to issue 
an injunction enjoining all appellees from refusing to 
admit appellants, and members of their class, to the Lindley 
Pool on the same terms and conditions applicable to white 
residents of Greensboro solely because of the race and 
color of appellants.

Respectfully submitted,

J. K. Lee
Major S. H igh

427 Bembow Road 
Greensboro, North Carolina

C. 0. P earson
2031/2 E. Chapel Hill Street 
Durham, North Carolina

Constance B aker Motley
Thurgood Marshall 

10 Columbus Circle 
New York 19, New York

Attorneys for Appellants



Charter o f  the City o f  G reensboro

Section 100. City officers not to have interest in city 
contracts; exceptions.— That no officer of the city, and no 
corporation or firm in which any such officer has an in­
terest, shall enter into any contract or agreement with the 
city, or sell any goods or property to the city, or buy 
any goods or property from the city; and any person 
violating any of the provisions of this section shall be 
guilty of a misdemeanor, and punished in the discretion 
of the court; provided, that nothing contained in this sec­
tion or any other law of the State shall be construed to 
prevent the city from taking by condemnation property 
of any councilman or other officer of the city, or of any 
corporation of which any councilman or city officer has 
any interest, or to prevent the city from reimbursing any 
of the class named in this section for money actually 
advanced and expended on behalf of the city for any 
governmental purpose, or purpose which the council may 
determine is proper for the city to pay; but any such 
payment must not include any profit to any one in the 
class enumerated above. Any councilman interested in any 
such matter shall not vote thereon; provided further, that 
until such time as other provision is made, the council 
is authorized and directed to contract with the owners of 
property in District Number One to provide street lighting, 
street repairs, sanitary advantages, health and social work, 
and other governmental services and facilities in said dis­
trict, or for the residents thereof, and to pay therefor a 
sum not exceeding the actual cost thereof, and not exceed­
ing a fair proportion of the tax revenue derived from 
said district for such purposes; provided, that nothing 
contained in this act or any general law of the state shall 
prevent publication of notices and other advertising matter



30

in any newspaper at the lowest commercial rate filed in 
the offices of the clerk of the superior court (a copy of 
which shall be filed with the city clerk), or from borrowing 
money from any bank at current or lowest obtainable rate 
of interest, not exceeding six per centum per annum, or 
from selling bonds to any bank upon lowest competitive 
bid, or from carrying an account with any bank in said 
city. (Priv. Laws, Extra Sess. 1924, ch. 9; Priv. Laws, 
1927, ch. 230.)