Evers v. Dwyer Statement as to Jurisdiction

    aAH  T «i

(tart ni %  InttrJi Stairs
October Term, 1958

No.

0. Z. EVERS, et al,
Appellants,

v.

JOHN T. DWYER, et al.,
Appellees.

A ppeal, from  th e  H otted S tates D istrict C ourt for the  
W estern- D istrict  of T ennessee, E astern D ivision

STATEMENT AS TO JURISDICTION

R obert L . C arter,
20 West 40th Street,

New York, N. Y.

H. T. L ockhard ,
322% Beale Street,

Memphis, Tennessee,
Attorneys for Appellants.

W il l ia m  T a y lo r ,
of C owns el.



I N D E X

Opinion B e lo w ............................................. .
Jurisdiction ................................................. .
Statute In volved ...........................................
Questions Presented ................................. .
Statement of the Case ............................. .
The Questions Presented Are Substantial

A. The Constitutional Question........
B. The Decision of the Court Below

Conclusion ....................................................
A ppendix  I—Opinion of the Court Below 
A ppendix  II— Statutes Involved .............

PAGE

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2

3
3
3
5

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6 
8 
9

16

Table of Cases

Baldwin v. Morgan, 251 F. 2d 780, 787 (5th Cir.
1958) ............................................................................. 6

Baltimore City v. Dawson, 350 U. S. 877 .................. 5
Brown v. Board of Education, 347 U. S. 483 ............ 2, 5
Burnes v. Scott, 117 U. S. 582, 589 ...........................  7
Doremus v. Board of Education, 342 IT. S. 429, 

434-435 ........................................................................... 6
Frothingham v. Mellon, 262 U. S. 447 ........................ 7
Gayle v. Browder, 352 IT. S. 903 .................................  2, 5
Gibson v. Board of Public Instruction of Dade 

County, 246 F. 2d 913 (5th Cir. 1957) .................. 6
Holmes v. Atlanta, 350 IT. S. 879 ................................  5
Joint Anti-Fascist Refugee Committee v. McGrath,

341 IT. S. 123, 152 7



11

PAGE

Pierce v. Society of Sisters, 268 U. S. 5 10 .................. 7
Stark v. Brannan, 82 F. Supp. 614 (D. C. 1949), affd.

185 F. 2d 871 (D. C. Cir., 1950), affd. 342 U. S. 451 7
Toomer v. Witsell, 334 IT. S. 385 ...................................  2
Truax v. Raich, 239 IT. S. 33 .....................................  7
Wheeler v. Denver, 229 IT. S. 342, 351 ...................... 6, 7
Williamson v. Osenton, 232 IT. S. 6 1 9 ........................ 6
Young v. Higbee Co., 324 IT. S. 204, 214 ...................... 6



&ttprm t  CSJmtrt of %  Init^ States
October Term, 1958 

No.

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

0 . Z. E vers, et al.,
Appellants,

v.

J ohn  T. D w yer , et al.,
Appellees.

A ppeal from  th e  U nited S tates D istrict C ourt for th e  
W estern D istrict of T ennessee, E astern  D ivision

■— -—  ---------------------------------------o ----------------------------------------------------------

STATEMENT AS TO JURISDICTION

The appellant, pursuant to United States Supreme 
Court Rules 13(2) and (5), files this, his statement on the 
basis upon which it is contended that the Supreme Court 
of the United States has jurisdiction on a direct appeal to 
review the judgment of the District Court and should exer­
cise such jurisdiction in this case.

Opinion Below

The opinion of the District Court has not yet been re­
ported but a copy thereof appears as Appendix I to this 
statement.



2

Jurisdiction

The case below was brought by appellant to secure a 
declaratory judgment and interlocutory and permanent 
injunctions to restrain appellees from enforcing Sections 
1704-1709, Title 65, Tennessee Code Annotated on the 
grounds that said statutes contravened the equal protec­
tion clause of the Fourteenth Amendment to the Constitu­
tion of the United States. Appellant invoked jurisdiction 
under 28 U. S. C. §§ 1331 and 1343(3) (Tr. 1) and a three- 
judge court was convened pursuant to 28 XL S. C. 2281 
and 2284 (Tr. 24). This appeal is taken from the judg­
ment of the three-judge court dismissing the action for 
lack of an actual controversy.

The final decree appealed from was made and entered 
on June 27, 1958 (Tr. 36). Notice of appeal was filed in 
the U. S. District Court for the Western District of Ten­
nessee, Eastern Division on July 23, 1958 (Tr. 37).

The Supreme Court of the United States has jurisdic­
tion to review by direct appeal the judgment and decree 
complained of by the provisions of 28 U. S. C. §§ 1253 and 
2101(b).

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment in this case: 
Brown v. Board of Education, 347 U. S. 483; Toomer v. 
Wit sell, 334 U. S. 385.

Appellant also filed a notice of appeal in the United 
States Court of Appeals for the Sixth Circuit (Tr. 40). 
This action was not taken because of any doubt that the 
jurisdiction of a three-judge court was properly and neces­
sarily invoked under Title 28, U. S. C. § 2281, but rather 
because Gayle v. Browder, 352 U. S. 903, decided after the 
commencement of this action, may affect the substantiality 
of the federal question presented to this Court. Since the 
issue—whether a subsequent decision may affect the 
propriety of a direct appeal to this Court from a judgment



3

of a three-judge court whose jurisdiction was properly in­
voked initially—has not yet been fully clarified, appellant 
filed an appeal in the Court of Appeals.

Statute Involved

Sections 1704-1709, Title 65, Tennessee Code An­
notated, 1955, requiring the separation of white and 
colored persons on street car lines operated in the state 
of Tennessee are not set out here because of their length, 
but appear in Appendix II to this statement.

Questions Presented

1. Whether Sections 1704-1709, Title 65, Tennessee 
Code, 1955, requiring racial segregation on street car lines 
operated in Tennessee are violative of the equal protec­
tion clause of the Fourteenth Amendment ?

2. Whether appellant Evers, a Negro resident of Mem­
phis, Tennessee, against whom Tennessee statutes requiring 
racial segregation have been enforced, may be barred from 
maintaining an action to declare said statutes unconstitu­
tional and to restrain their enforcement, on the ground 
that this suit does not present an “ actual controversy!”

Statement of the Case

On June 5, 1956 appellant, a Negro resident of the City 
of Memphis, Tennessee, brought this action against the 
Mayor and Commissioners of Memphis, the Chief of Police 
and two police officers of Memphis, the Memphis Street 
Railway Company and the operator of one of the Com­
pany’s buses. Appellant sought a declaratory judgment 
that Title 65, Sections 1704-1709, Tennessee Code anno­
tated, requiring segregation of white and Negro passen­
gers on street car lines operated in the State of Tennessee,



4

was unconstitutional in that it offended the equal protec­
tion clause of the Fourteenth Amendment, and inter­
locutory and permanent injunctions restraining the en­
forcement of these statutes (Tr. 6, 7). The suit was 
brought as a class suit under Rule 23a of the Federal Rules 
of Civil Procedure on behalf of appellant Evers and all 
other Negroes similiarly situated.

In the complaint, appellant alleged that on April 26, 
1956, he had boarded a bus operated by appellee rail­
way company and had taken a seat normally reserved for 
white persons, that he had been ordered to move by the 
bus driver but refused to do so, that the driver summoned 
two policemen who advised appellant that he was violat­
ing state law and ordered him to move to the rear of the 
bus, leave the bus, or be arrested and that he elected to 
leave the bus (Tr. 4, 5).

All of the appellees admitted the substantial accuracy 
of these allegations (Tr. 10, 15, 21, 22), and on November 
27,1956, amotion for summary judgment was filed (Tr. 25).

Hearing on the merits of this cause was held before a 
three-judge court on January 6,1958, nineteen months after 
the commencement of this action. At the hearing, counsel 
for appellees elicited from appellant the statements that he 
had used the public transportation facilities of Memphis 
only on the occasion described in his complaint (Tr. 117), 
that he owned an automobile (Tr. 117), and that he was 
not personally bearing the expenses of this action (Tr. 112, 
118). Upon these statements, and evidence that appellant 
was employing a roundabout means of reaching his as­
serted destination (Tr. 150-153) appellees based a motion 
to dismiss.

On January 11, 1958, a further hearing was held to 
allow the intervention of the Governor and Attorney Gen­
eral of Tennessee. The Governor and Attorney General 
appeared by their attorneys, adopted all the defenses 
presented by the other appellees and submitted briefs in 
support of these defenses (Tr. 326).



5

On June 27, 1958, the court below entered an order dis­
missing the complaint on the ground that no actual con­
troversy was presented for decision and that appellant 
had suffered no legal injury, basing this decision upon the 
facts brought forth at the January 6 hearing.

On July 23, 1958, appellant filed notice of appeal to this 
Court (Tr. 37) and to the Court of Appeals (Tr. 40).

The Questions Presented Are Substantial 

A . The Constitutional Question.

In a series of decisions rendered since 1954, this Court 
has held that all forms of publicly sanctioned or enforced 
racial segregation are repugnant to the guarantees of the 
Fourteenth Amendment. Broivn v. Board of Education, 
347 TJ. S. 483; Baltimore City v. Dawson, 350 U. S. 877; 
Holmes v. Atlanta, 350 U. S. 879; Gayle v. Browder, 352 
TJ. S. 903. Gayle v. Browder applied this principle to public 
transportation, the field here involved.

But in several areas, state and local officials have 
sought to avoid the effect of these decisions by employing 
various colorable legal stratagems. In some cases these 
devices have delayed or nullified the enjoyment by Negro 
citizens of their rights to unsegregated public facilities.

In this case, it is submitted, the court below erroneously 
sanctioned a principle which, if sustained, will be used to 
further frustrate and postpone the vindication of these 
constitutional rights.

Appellant Evers’ constitutional right to unsegregated 
public transportation facilities and the rights of those 
similarly situated can no longer be doubted. Gayle v. 
Browder, supra. Unless the court below was correct in 
concluding that appellant Evers had no standing to main­
tain this action, it was under obligation to enter an order 
vindicating the right to the use of public transportation 
facilities on a non-discriminatory basis.



6

B. The D ecision  o f  the Court B elow .

The crux of the trial court’s decision is a finding that 
appellant Evers did not really bring the suit in order to 
obtain for himself unsegregated public transportation, but 
rather for some other ulterior motive. From this finding, 
the court draws the legal conclusions that appellant did 
not suffer “ legal injury”  sufficient to give him standing 
to sue and that no ‘ ‘ actual controversy ’ ’ was presented. The 
finding, in turn, rests upon evidence that (1) appellant only 
used the transportation facilities of Memphis on one occa­
sion ; (2) appellant owns his own automobile.

At the outset, one may question whether any logic 
supports the findings the trial court drew from this evi­
dence. Surely the court did not intend to suggest that in 
order to acquire standing to sue, appellant had either to 
subject himself on a regular basis to the segregated seat­
ing arrangement he found obnoxious or else submit to 
multiple arrests for attempting to violate state law.1 And 
the court could hardly have meant to hold that owners of 
automobiles never have occasion to use a city’s public 
transportation system and thus have no “ interest”  in it.

But even if it be conceded, arguendo, that these facts 
afford a basis for doubting appellant’s motive in bringing 
this suit, dismissal was not proper. For, where a plaintiff 
adduces facts sufficient to bring him within the jurisdiction 
of the court and entitle him to relief, his motives in bring­
ing the action are entirely irrelevant. Dor emus v. Board 
of Education, 342 U. S. 429, 434-435; Young v. Higbee Co., 
324 U. S. 204, 214; Wheeler v. Denver, 229 U. S. 342, 351; 
Williamson v. Osenton, 232 U. S. 619.

1 It is even doubtful that appellant had to violate the law and 
subject himself to possible arrest at all in order to acquire standing 
to sue. Baldwin v. Morgan, 251 F. 2d 780, 787 (5th Cir., 1958) ; 
cf. Gibson v. Board of Public Instruction of Dade County, 246 F. 2d 
913 (5th Cir., 1957).



The cases and principles cited by the court below sup­
port rather than negate appellant’s right to maintain this 
action. See, e.g., Frothingham v. Mellon, 262 U. S. 447. 
Appellant was a member of the class, i.e., Negro citizens 
of Tennessee, directly affected by the statute in question; 
he did not merely suffer in ‘ ‘ some indefinite way in common 
with people generally” . And, appellant was not only in 
danger of sustaining injury as a result of the statute’s en­
forcement, but actually had sustained such injury on one 
occasion. The presence of “ legal”  injury cannot be 
negated by a finding that, subjectively, appellant did not 
feel -aggrieved by the action complained of where, as here, 
appellant’s interest is created by specific provisions in the 
Constitution and laws of the United States. See Joint 
Anti-Fascist Refugee Committee v. McGrath, 341 U. S. 
123, 152.

This Court, in fact, has upheld the rights of action of 
parties far less immediately affected by government action 
than appellant here. See, e.g., Truax v. Raich, 239 U. S. 33; 
Pierce v. Society of Sisters, 268 U. S. 510; Joint Anti- 
Fascist Refugee Committee v. McGrath, 341 U. S. 123, 
149 ff.

Unmentioned in the opinion of the court below, but 
underlying its decision is the fact that appellant is not 
personally bearing the expenses of this lawsuit.2 For if 
appellant was incurring the expenses of this action, it would 
be extremely difficult for anyone to suggest that he did not 
really want for himself the relief sought. But it is well 
established that the fact that others are paying the ex­
penses of litigation does not impair a party’s legal interest 
or standing to sue. Wheeler v. Denver, 229 U. S. 342, 351; 
cf. Stark v. Brannan, 82 F. Supp. 614 (D. C. 1949), affd., 
185 F. 2d 871 (D. C. Cir., 1950), affd. 342 U. S. 451.3

2 Appellees strongly urged this point as a ground for dismissal 
both in their briefs and at the hearing (Tr. 112, 118, 119, 145, 230).

3 This is the rule even when the agreement to pay expenses is 
champertous. Burnes v. Scott, 117 U. S. 582, 589.



The last factor underscores the importance of the ques­
tions here presented. Complainants in cases involving civil 
rights are rarely in a position to bear all of the,expenses 
of litigation, and almost always receive pecuniary support 
from a legal aid organization or other source. If the prin­
ciple enunciated by the court below is allowed to stand, all 
plaintiffs who do not pay their own expenses may be sub­
jected to a “ purity of motive”  test not based on any 
objective criteria. One more barrier to the vindication of 
precious constitutional rights will have been erected.

Appellants submit that the traditional concepts of “ ac­
tual controversy”  and “ standing to litigate”  cannot he 
twisted to achieve this result.

Conclusion

For the foregoing reasons, it is respectfully submitted, 
this appeal should be granted and the judgment of the 
court below should he reviewed and reversed by this Court.

B obert L. Carter,
20 West 40th Street,

New York, N. Y.
H. T. L ockhakd ,

322% Beale Street,
Memphis, Tennessee. 

Attorneys for Appellants.
W illiam  T aylor,

of Counsel.



9

APPENDIX I 

Opinion of the Court Below

P er Cu ria m . This is a civil action brought by O. Z. 
Evers, a colored citizen, against the Mayor and Commis­
sioners of the City of Memphis, individually and in their 
official capacities; the Chief of Police of Memphis, both 
individually and officially; two police officers of Memphis; 
a named employee of the Memphis Street Railway Com­
pany, operator of one of its buses; and the “ Memphis 
Street and Railway Company.”  The complaint is based 
upon the alleged violation of the rights of plaintiff and 
other citizens similarly situated, as guaranteed by the 
Fourteenth Amendment of the Constitution of the United 
States, in the enforcement by defendants of Sections 1704- 
1709, Title 65, Tennessee Code Annotated, 1955, requiring 
the separation of white and colored persons on street-car 
lines operated in Tennessee.

The charge is made that the aforementioned Tennessee 
Code sections are unconstitutional, in view of the decision 
of the Supreme Court of the United States in Gayle v. 
Browder, 352 U. S. 903, affirming the decision of a three- 
judge district court sitting in the Middle District of Ala­
bama in 1956 (reported in 142 Fed. Supp. 707), generally 
known as the “ Montgomery Bus Case” . The plaintiff in­
sists that the doctrine of Plessy v. Ferguson, 163 U. S. 567, 
has been entirely repudiated by the holding and pronounce­
ments of the highest court in Brown v. Board of Education, 
347 U. S. 483; Mayor and City Council of Baltimore v. 
Dawson, 350 U. S. 877; and Holmes v. Atlanta, 350 U. S. 
879.

Plaintiff avers that, on April 26, 1956, he was ordered 
by the bus operator to move from a front seat which he 
occupied to the rear of the bus. He refused and, later, two 
Memphis Police officers who, apparently, had been sum­
moned by the bus operator, ordered him to obey, get off 
the bus, or be arrested. Whereupon, he left the car. He



10

pleads that he and those similarly situated are threatened 
with irreparable injury by reason of the acts of defendants 
of which complaint is made, and that there is no other plain, 
adequate and complete remedy other than by “ this suit for 
an injunction.”

The prayer of the complaint asks that a three-judge 
court, as provided for by Title 28, section 2284, United 
States Code, be convened; that an injunction restraining 
defendants from enforcing the sections of the Tennessee 
Code cited above be granted; and that defendants be re­
strained from enforcing “ any and all customs, practices, 
and usages pursuant to which plaintiff or other persons 
similarly situated are segregated in the street cars of the 
Memphis Street and Railway Company, on the ground that 
such statutes are null and void and in violation of the 
Fourteenth Amendment to the Constitution of the United 
States.”  Declaratory judgment, pursuant to sections 2201 
and 2202 of Title 28, United States Code, declaring and 
defining “ the legal rights of the parties in relation to the 
subject matter of this controversy”  is prayed.

Separate answers of the Mayor and City Commissioners 
of Memphis, of the Memphis Street Railway Company and 
its bus operator, and of two substituted police officers for 
those officers named in the petition (who had nothing to do 
with the matter) were filed; a three-judge court was law­
fully designated; and the case came on for hearing before 
that court on January 6, 1958.

Immediately prior to the hearing, the defendants filed 
a motion for continuance on the ground that the five-day 
notice required by statute (28 U. S. C., section 2284) had 
not been given by the Clerk of the Court to the Governor and 
the Attorney General of Tennessee. At the hearing, it was 
insisted that the assembled three-judge court had no juris­
diction to proceed. Technically, there was merit in this 
position; but, inasmuch as the pendency of the suit and of 
the date set for hearing was a matter of common knowledge



11

and must have been known by the State officials, the court 
deemed it inadvisable to delay action beyond a time suf­
ficient to permit the State of Tennessee to intervene. It 
was ordered, therefore, that the hearing proceed, that evi­
dence be introduced and recorded and arguments heard, 
with the understanding that after appropriate notice had 
been given the Governor and the Attorney General of 
Tennessee the State could intervene and be heard; or, if the 
State so elected, all evidence received at the January 6 
hearing should be expunged and the proceeding started 
de novo. This course was pursued by the court for the 
added reason that the counsel who took the lead for plaintiff 
had traveled from New York to attend the hearing and all 
parties except the State were represented by counsel in 
attendance. The further hearing was set for January 11 
to afford opportunity for compliance with the provision of 
the statute requiring five days notice.

On January 11, 1958, the Solicitor General and the 
Assistant Attorney General of Tennessee appeared on be­
half of the State and adopted all defenses made by the 
defendant officials of Memphis. When offered the oppor­
tunity, they expressed no desire to present additional proof, 
but did file briefs. Indeed, the second point made in the 
State’s brief is, we think, determinative of the present 
case; that is to say that this action should be dismissed 
for lack of an actual controversy and of a real interest in 
the suit on the part of the plaintiff. The Federal Declara­
tory Judgment Act provides: “ In a case of actual contro­
versy within its jurisdiction, except with respect to Federal 
Taxes, any court of the United States, upon the filing of an 
appropriate pleading, may declare the rights and other legal 
relations of any interested party seeking such declaration, 
whether or not future relief is or could be sought. Any 
such declaration shall have the force and effect of a final 
judgment or decree and shall be reviewable as such.”  
(Emphasis supplied) Title 28, section 2201, U. S. C.



12

In Maryland Casualty Co. v. Pacific Coal £  Oil Co., 312 
U. S. 270, 272, 273, the Supreme Court asserted that a dis­
trict court is without power to grant declaratory relief 
unless an actual controversy exists. The Supreme Court 
said, further, that the difference between an abstract ques­
tion and a controversy contemplated by the Declaratory 
Judgment Act is necessarily one of degree; that it would 
be difficult—if possible—to fashion a precise test; and that 
the question in each case is basically whether the facts 
alleged, under all the circumstances, show that there is a 
substantial controversy between parties having adverse 
legal interests of sufficient immediacy and reality to war­
rant the issuance of a declaratory judgment.

The Court of Appeals for the Sixth Circuit, speaking 
through Judge Shackelford Miller, Jr., in Walker v. Fel- 
mont Oil Corporation, 240 F. (2d) 912, 916 (C. A. 6), said: 
“ Although jurisdiction may exist, it does not follow that 
it must be exercised. The Declaratory Judgment Act con­
fers a discretion on the court rather than an absolute right 
upon the litigant. Public Service Commission of Utah v. 
Wycoff Co., 344 U. S. 237, 241, 243, 73 S. Ct. 236, 97 L. Ed. 
291; Brillhart v. Excess Insurance Co., 316 U. S. 491, 494, 
62 S. Ct. 1173, 86 L. Ed. 1620; Great Lakes Dredge & Dock 
Co. v. Huffman, 319 U. S. 293, 63 S. Ct. 1070, 87 L. Ed. 
1407. Federal courts should exercise their discretionary 
power with the proper regard for the rightful independence 
of state governments in carrying out their domestic policy. 
Conflicts in the interpretation of state law, dangerous to 
the success of state policies, are almost certain to result 
from the intervention of lower federal courts. Common­
wealth of Pennsylvania v. Williams, 294 U. S. 176, 185, 55 
S. Ct. 380, 79 L. Ed. 841; Burford v. Sun Oil Co., 319 U. S. 
315, 318, 334, 63 S. Ct. 1098, 87 L. Ed. 1424. A federal court 
in a declaratory judgment suit should give strong con­
sideration to the public interest involved in the avoidance 
of needless friction with state policies. Railroad Commis­
sion of Texas v. Pullman Co., 312 TJ. S. 496, 500, 61 S. Ct.



13

643, 85 L. Ed. 971; Alabama Public Service Commission v. 
Southern Railway Co., 341 IT. S. 341, 350, 71 S. Ct. 762, 
95 L. Ed. 1002.”

Moreover, the Court of Appeals for this Circuit, in an 
opinion by Judge Potter Stewart, states: “  * * * It is well 
settled, however, that accepted principles governing equi­
table and declaratory relief are no less applicable where 
such relief is sought under the Civil Rights Act. Giles v. 
Harris, 1903,189 U. S. 475, 486, 23 S. Ct. 639, 47 L. Ed. 909; 
Douglas v. City of Jeannette, 1943, 319 U. S, 157, 63 S. Ct;. 
877, 87 L. Ed. 1324. Federal courts have been chary of 
granting declaratory or equitable relief in an area of pos­
sible friction between federal and state jurisdictions. 
(Citing cases).”  Williams, et al. v. Dalton, et al., 231 F. 
(2d) 646, 648 (C. A. 6).

The Court of Appeals for the Seventh Circuit, in 
Ex-Cell-0 Corporation v. City of Chicago, 115 F. (2d) 
627, held that a party attacking the validity of a municipal 
ordinance had failed to meet the required standard of 
showing, not only that the ordinance was invalid, but also 
that he had sustained or was in immediate danger of 
sustaining some direct injury as the result of its enforce­
ment; not merely that he had suffered in some indefinite 
way in common with people generally. The court quoted 
from the opinion of the Supreme Court in Massachusetts 
v. Mellon, 262 U. S. 447. See also Federation of Labor v. 
McAdory, 325 U. S. 450, 463, where it was said: “ Only 
those to whom a statute applies and who are adversely 
affected by it can draw in question its constitutional 
validity in a declaratory judgment proceeding.”

In the absence of a clear showing of an actual con­
troversy and that he is genuinely being deprived of a con­
stitutional right, no citizen should be privileged to obtain 
from a federal court a judgment which not only declares 
invalid the statutory law of a sovereign state, but also 
enjoins its enforcement.



14

In the instant case, the plaintiff, a colored postal clerk 
who had previously been a police officer in Cook County, 
Illinois, recently came to Memphis where he worked in 
the Post Office. On April 26, 1956, he boarded a Memphis 
Street Railway bus and took a front seat immediately 
behind the driver, who directed him to sit in the rear of 
the bus, stating that the law required it because of plain­
tiff ’s color. He refused to comply. The bus driver pro­
ceeded to a fire station, which he entered and where he 
remained for some ten minutes according to the plaintiff. 
When the bus reached another corner on its route, two 
police officers boarded the bus and asked what was wrong. 
The driver told them that the plaintiff and another man 
accompanying him had refused to move to the rear. The 
officers ordered plaintiff to go to the back of the bus, get 
off, or be arrested. He left the bus.

Plaintiff testified that he was coming down town to the 
Post Office and had ridden in an automobile owned by a 
friend whose name he could not recall to the point where 
he boarded the bus. The bus which he boarded was not 
headed directly toward the Post Office in the business dis­
trict of the city, but in a different direction on a cir­
cuitous route which required several miles’ extra travel to 
reach the down-town area. He denied that in getting on 
the bus on the particular day he was laying grounds for 
this suit; but, on cross-examination by the City Attorney, 
he admitted that he had never previously ridden a bus in 
Memphis and that he had not ridden one since the incident 
in question.

Plaintiff admitted further that he is the owner of an 
automobile at the present time and that he owned one at 
the time of the particular incident—the only occasion on 
which he had ridden a bus. It is thus obvious that he was 
not a regular or even an occasional user of bus transpor­
tation ; that in reality he boarded the bus for the purpose 
of instituting this litigation; and that he is not in the 
position of representative of a class of colored citizens



who do use the buses in Memphis as a means of transpor­
tation. This is, therefore, not a case involving’ an actual 
controversy. Moreover, plaintiff has not suffered the 
irreparable injury necessary to justify the issuance of an 
injunction. In fact, his own testimony shows that he has 
not been injured at all.

Accordingly, the action is dismissed.

/ s /  J oh n  D . M artin , 
United States Circuit Judge.

/ s /  M arion  S. B oyd, 
United States District Judge.

/s /  W illiam  E. M iller, 
United States District Judge.



16

APPENDIX II 

Statutes Involved

E qu ipm en t  and O pebating  of S tbeet and 
I nteeurban  R ailroads

Title 65, Section 1704, Tennessee Code (1955). P or- 
tions of Cab to B e S et  A pabt and  D esignated fob E ach  
R ace.— All persons, companies, or corporations operating 
any street car line in the state are required, where white 
and colored passengers are carried or transported in the 
same car or cars, to set apart and designate in each car or 
coach, so operated, a portion thereof or certain seats 
therein to be occupied by white passengers, and a portion 
thereof or certain seats therein to be occupied by colored 
passengers; but nothing in sections 65-1704-65-1709 shall 
be construed to apply to nurses attending children or other 
helpless persons of the other race. (Acts 1905, eh. 150, sec­
tion 1; Shan., section 3079al; Code 1932, section 5527.)

Title 65, Section 1705, Tennessee Code (1955). P rinted  
S ign to I ndicate C abs ob P arts of Cars for E ach  R ace. 
■—Large printed or painted signs shall be kept in a con­
spicuous place in the car or cars, or the parts thereof set 
apart or designated for the different races, on which shall 
be printed or painted, if set apart or designated for the 
white people, and it being a car so designated or set apart, 
“ This ear for white people.”  If a part of a car is so 
designated, then this sign, “ This part of car for white 
people.”  If set apart or designated for the colored race, 
this sign to be displayed in a conspicuous place as follows, 
“ This car for the colored race.”  I f  any part of a car is 
set apart or designated for said race, then this sign as 
follows, “ This part of the car for the colored race.”  (Acts 
1905, ch. 1950, section 1; Shan., section 3079a2; Code 1932, 
section 5528.)

Title, 65, Section 1706, Tennessee Code (1955). C on­
ductor M ay  I ncrease or D im in is h  S pace for E ith er  R ace, 
or R equire Change  of S eats.'—The Conductor or other



17

person in charge of any car or coach so operated upon any 
street car line shall have the right at any time, when in his 
judgment it may be necessary or proper for the comfort 
or convenience of passengers so to do, to change the said 
designation so as to increase or decrease the amount of 
space or seats set apart for either race, or he may require 
any passenger to change his seat when or so often as the 
change in the passengers may make such change necessary. 
(Acts 1905, ch. 150, section 2; Shan., section 3079a3; Code 
1932, section 5529.)

Title 65, Section 1707, Tennessee Code (1955). R efusal 
of P assengers to T ake  S eats A ssigned by C onductor and 
D esignated for T h eir  R ace or L eave Car-P en alty .— All 
passengers on any street car line shall be required to take 
the seats assigned to them, and any person refusing so to 
do shall leave the car or remaining upon the car shall be 
guilty of a misdemeanor, and upon conviction shall be fined 
in any sum not to exceed twenty-five dollars ($25.00); pro­
vided, no conductor shall assign any person or passenger 
to a seat except those designated or set apart for the race 
to which said passenger belongs. (Acts 1905, ch. 150, sec­
tion 3; Shan., section 3079a4; Code 1932, section 5530.)

Title 65, Section 1708, Tennessee Code (1955). F ailure 
to S et A part P ortions of Car for E ach  R ace-P en alty .—  
Any person, company, or corporation failing to set apart 
or designate separate portions of the cars operated for the 
separate accommodation of the white and colored passen­
gers, as provided by sections 65-1704-65-1709, shall be 
guilty of a misdemeanor and fined in any sum not to exceed 
twenty-five dollars ($25.00). (Acts 1905, ch. 150, section 4; 
Shan., section 3079a5; Code 1932, section 5531.)

Title 65, Section 1709, Tennessee Code (1955). S pecial 
Cars for E xclusive A ccommodation of E ith er  R ace.—  
Nothing in sections 65-1704— 65-1709 shall be construed to 
prevent the running of extra or special cars for the exclu­
sive accommodation of either white or colored passengers, 
if the regular cars are operated as required by sections 
65-1704—65-1709. (Acts 1905, ch. 150, section 5; Shan., 
section 3079a6; Code 1932, section 5532.)