Department of Conservation and Development v. Tate Brief in Opposition for Writ of Certiorari

    Ouuui nt tip llnlUh Platen
October Term, 1956 

No. 238

IN THE

DEPARTMENT OF CONSERVATION AND
DEVELOPMENT, E tc., et al, 

v.
Petitioners,

LAVINIA G. TATE, et al.,
Respondents.

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF 
CERTIORARI TO THE UNITED STATES COURT 

OF APPEALS FOR THE FOURTH CIRCUIT

V ictor J. A she 
Oliver W . H ill 
T hurgood Marshall 
Spottswood W. R obinson, III 

623 North Third Street 
Richmond 19, Virginia

Attorneys for Respondents.
E lwood H. Chisolm 
J. H ugo Madison 
J ames A. Overton

of Counsel

S upreme P rinting Co., I nc., 114 W orth Street, N. Y. 13, BEekman 3-2320



IN  THE

§>n$xtM£ (tori of tljr United States
October Term, 19S6 

No. 238

---------------- — o—•—-------- ------

D epartment of Conservation and Development,
E tc., et al.,

Petitioners,
v.

L avinia G. T ate, et al.,
Respondents.

— _ ---------------------- - o ---------------------------— -

BRIEF IN OPPOSITION TO PETITION FOR WRIT  
OF CERTIORARI

The Petition for Writ of Certiorari filed herein fails to 
state any recognizable grounds for review by this Court of 
the judgment of the United States Court of Appeals for 
the Fourth Circuit.

Judgment Sought To Be Reviewed

Petitioners are seeking to have this Court Review the 
United States Court of Appeals for the Fourth Circuit’s 
affirmance of an order of the District Court for the East­
ern District of Virginia, which provides:

It is A djudged, Ordered and D ecreed that the 
Department of Conservation and Development of the 
Commonwealth of Virginia, its Director, agents, 
lessees and successors in office, are hereby perma­
nently enjoined and restrained from denying any



2

person of the Negro race, by reason of his race and 
color, the right to use and enjoy the facilities at Sea­
shore State Park; it is further A djudged, Ordered 
and D ecreed that if said Park or any part thereof 
is leased, the lessee must not, directly or indirectly, 
operate so as to discriminate against the members of 
any race. (Petition for Writ of Certiorari, Appx. II.)

Only the latter command of this order is questioned; and 
petitioners here, as in the courts below, contend that author­
ity for it does not exist in either the applicable case law or 
the facts of this ease (Petitioners’ Brief, p. 13).

Reasons W hy the W rit Should Not Be Granted

1. The disputed section of the order is amply sup­
ported by the findings of fact.

The disputed section of the order rests upon findings of 
fact which are summarized in the opinion of the District 
Court in the following language, 133 F. Supp., at 55, 56:

It is interesting to note that there was no specific 
consideration given to leasing any of the state parks 
until after the pre-trial conference on November 5, 
1954. According to Long there had been some gen­
eral discussion in April, 1953, on the subject of com­
petition with private enterprise occasioned by the use 
of cabins for overnight accommodations. Since the 
State operated all parks in 1954 on a so called com­
petitive basis and, during the 1955 season, has elected 
to similarly operate all parks excepting the one which 
is the subject matter of this action, it may be fairly 
assumed that the State has not yet given serious 
consideration to the abolition of any such competi­
tion, if any, with private enterprise. The State 
elected not to operate Seashore State Park, although 
the Court’s preliminary injunction only restrained 
the leasing of the Park and its facilities.

*



3

With all due respect to the able leaders of this 
Commonwealth, it is perfectly apparent to the Court 
that the fundamental reason for the contemplated 
leasing lies in the problem of use by members of all 
races. It is probably true that financial reasons are 
paramount, but the potential financial loss is brought 
about by the decisions of many courts, State and Fed­
eral, universally holding that property acquired, 
maintained and operated by the Federal, State and 
local governments shall be made equally available 
to all races, subject to reasonable rules and regula­
tions. The proposed “ negotiated lease”  effectively 
vests in the hands of a small group the power to ac­
complish by indirection exactly what all Court have 
said cannot be done. The control exercised in a 
“ negotiated lease”  through the medium of “ select­
ing”  the lessee is as powerful as the actual words 
of any written lease.

We submit that the findings summarized above are not 
only amply supported by the evidence but are incontro­
vertible on the record.

On review the Court of Appeals agreed with the Dis­
trict Court and approved the findings of fact by quoting 
the following finding of the District Court:

The short answer to the argument advanced by 
defendants, that there is insufficient evidence to jus­
tify a permanent injunction based upon future threat­
ened 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 of Conser­
vation and Development. While this Court is in­
clined 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



4

may complain. Accordingly, tlie defendants are re­
quired to elect to operate on a non-discriminatory 
basis, or, if leased, to see that the park is operated by 
the lessee without discrimination (Petitioners’ Brief, 
Appx. I).

2. The disputed section of the order neither presents an 
important Fourteenth Amendment question nor con­
flicts with the decisions of this Court so as to call for 
an exercise of the supervisory powers of this Court.

The provision in the order of which petitioners complain 
neither presents an important Fourteenth Amendment ques­
tion nor conflicts with any applicable decision of this Court 
so as to call for the exercise of the Court’s supervisory 
powers. Argument on these grounds would appear to be 
foreclosed by Muir v. Louisville Park Theatrical Associa­
tion, 347 U. S. 971. Indeed, petitioners have made no effort 
to distinguish this decision relied on by both of the Courts 
below.

Moreover, the effort of petitioners to question the State 
instrumentality concept of state action is hardly apropos in 
view of the current case authority. See, Nixon v. Condon, 
286 U. S. 73; Smith v. Allwright, 321 U. S. 649; Shelley v. 
Kraemer, 334 U. S. 1; Terry v. Adams, 345 U. S. 461. See 
also Fleming v. South Carolina Electric <& Gas Co., 224 F2d 
752 (CA 4th 1955), appeal dismissed, — U. S. —, 100 L. ed. 
(Advance p. 533); Kerr  v. Enoch Pratt Free Library, 149 
F2d 212 (CA 4th 1945); Lawrence v. Hancock, 76 F. Supp. 
1004 (S. D. W. Va. 1948); Kern  v. City Commissioners of 
Newton, 151 Kan. 565, 100 P2d 709 (1940); Culver v. City 
of Warren, 84 Ohio App. 373, 83 N. E. 2d 82 (1948). Lincoln 
Park Traps v. Chicago Park List., 323 111. App. 107, 55 N. E. 
2d 173 (1944); Davis v. City of Atlanta, 84 Ga. App. 572, 
66 S. E. 2d 188 (1951).

Similarly, the propriety of the disputed section of the 
decree is not only justified by the findings but is amply sup­



5

ported by the authorities. See, e. g., Regal Knitware Co. 
v. National Labor Relations Board, 324 IT. S. 9, 14; In re 
Lennon, 166 U. S. 548; International Brotherhood v. K ey­
stone F. Lines, 123 F2d 326, 329 (G A  10th 1941); Alemite 
Mfg. Co. v. Staff, 42 F2d 832 (CA 2d 1930). And see Anno: 
40 ALB 2d 592.

CONCLUSION

For the reasons hereinbefore staled, it is respect­
fully submitted that the petition for a writ o f  certiorari 
in this case should be denied.

Bespeetfully submitted,

V ictor J. A she 
Oliver W . H ill 
T hurgood Marshall 
Spottswood W. R obinson, III 

623 North Third Street 
Richmond 19, Virginia

Attorneys for Respondents.
E lwood H. Chisolm 
J. H ugo Madison 
J ames A . Overton

of Counsel

Dated: August 3rd, 1956.