Franks v. Bowman Transportation Company Petition for a Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    I n  the

(ftmtrt ai tl|? lilnitpii States
October Term, 1967 

No..............

Nashville 1-40 Steering Committee, an Unincorporated 
Association, and Its Individual Members, etc., et al.,

v.
Petitioners,

B uford E llington, Governor, State of Tennessee; Charles 
W . Speight, Commissioner of Highways, State of Ten­
nessee ; and B everly B riley, Mayor of the Metropolitan 
Government of Nashville and Davidson County, Ten­
nessee.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Jack Greenberg 
James M. Nabrit, III 
Charles H. Jones, Jr.
M ichael Davidson

10 Columbus Circle 
New York, New York 10019

A von N. W illiams, Jr.
Z. A lexander L ooby 
L ooby & W illiams

327 Charlotte Avenue 
Nashville, Tennessee 37201

Attorneys for Petitioners

Charles L. B lack, Jr. 
Of Counsel



I N D E X

Citations to Opinions Below ..........................................  2

Jurisdiction .........................................................................  2

Questions Presented .........................................................  2

Statute and Regulation Involved....................................  3

Statement of the Case ...................................................... 5

Summary of Proceedings in the Courts B elow ..... 5

Summary of Facts ...................................................... 7

R easons foe Granting the W rit—

I. Introduction...........................................................  17

II. The Highway Route Is Racially Discriminatory
in Violation of the Fourteenth Amendment..... 21

III. There Was no Public Hearing With Proper
Notice as Required by the Federal Highway 
Statute ...................................................................  23

IV. There Was no Consideration of the Economic
Effects of the Highway Route as Required by 
Federal Law .......................................................... 28

V. The Balance of Equities Favors Petitioners .... 34

PAGE

Conclusion 37



11

T able of Cases

Burton v. Wilmington Parking Authority, 365 U.S.
715 ..................................................................................... 23

City of Pittsburgh v. F.P.C., 237 F.2d 791 (D.C. Cir. 
1956) .................................................................................  32

Gomillion v. Lightfoot, 364 U.S. 339 ..............................  22
Guinn v. United States, 238 U.S. 347 ..........................  22

Harper v. State Board of Elections, 383 U.S. 663 .......  28
Hoffman v. Stevens, 177 F. Supp. 898 (M.D. Pa. 1959) 24

Land v. Dollar, 330 U.S. 731 ..........................................  20
Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682 ...........................................................................  20
Linnecke v. Department of Highways, 76 Nev. 26, 348 

P.2d 235 (1960) ............................................................. 23, 24

Office of Communication of United Church of Christ v. 
F.C.C., 359 F.2d 994 (D.C. Cir. 1966) ...........................  28

Piekarski v. Smith, 38 Del. Ch. 402, 147 A.2d 176 
(1958), aff’d 153 A.2d 587 (Sup. Ct. Del. 1959) .......  24

Road Review League v. Boyd, 270 F. Supp. 650 (S.D.
N.Y. 1967) ....................................................................  28

Scenic Hudson Preservation Conference v. Federal 
Power Commission, 354 F.2d 608 (2nd Cir. 1965),
cert. den. 384 U.S. 941 .................................. 6, 28, 29, 30, 31

State Highway Commission v. Danielsen, 146 Mont.
539, 409 P.2d 443 (1965) .................................................. 31

PAGE



m

PAGE

Texas East Trans. Corp. v. Wildlife Preservers, Inc.,
48 N.J. 261, 225 A.2d 130 (1966) .............................. 31,32

United States v. General Motors Corp., 323 U.S. 373 20

Yick Wo v. Hopkins, 118 U.S. 356 ..................................  22

Statutes I nvolved

23 C.F.R., §1.6.....................................................................  4

The Demonstration Cities and Metropolitan Develop­
ment Act of 1966, 80 Stat. 1255, 42 U.S.C. §3301 ....... 26

Department of Transportation Act, Sections 2(a),
4 (f), 80 Stat. 931, 49 U.S.C. §§1651(a), 1653(f) .......  31

Federal-Aid Highway Act of 1950, 64 Stat. 791 ......... 25

Section 116(c), Federal-Aid Highway Act of 1956, 70
Stat. 385, 23 U.S.C. §§101 et seq............. 2, 3, 5,10, 23, 24,

28, 29, 30, 32

Federal-Aid Highway Act of 1956, 70 Stat. 385, Sec­
tions 116(a), 116(b) ...................................................... 30

Federal-Aid Highway Act, of 1958, 72 Stat. 89 ........... 3

Federal-Aid Highway Act of 1966, 80 Stat. 766, 23 
U.S.C. §138 .....................................................................  31

P.L. 85-767, 72 Stat. 885, 902 ..........................................  3

United States Housing Act of 1949, 63 Stat. 416, 42 
U.S.C. §1455 (c) .............................................................. 26

23 U.S.C. §106.....................................................................  11

23 U.S.C. §128.....................................................................  3



IV

23 U.S.C. §304 .....................................................................  30

28 U.S.C. §1254(1) .............................................................  2

28 U.S.C. §§1331(a), 1343(3) ............................................  5

42 U.S.C. §§1981, 1982, 1983, 2000d..................................  5

Other A uthorities

Bureau of Public Roads Policy and Procedure Memo­
randum 20-8.....................................................................  26

96 Cong. Rec. 13005, 13006 (1950) ............................ 25, 26, 31

House Committee on Public Works, 90th Cong. 1st 
Sess., Highway Relocation Assistance Study (Comm. 
Print No. 9, July 1967) .................................................. 18

H.R. Rep. No. 2436, 84th Cong., 2nd Sess., 36 (1956) .... 25

New York Times, November 13, 1967, Late City Edi­
tion, p. 1, “U. S. Road Plans Periled by Rising Urban 
Hostility.” .........................................................................  17

New York Times, December 31, 1967, page E-7, “White 
Roads Through Black Bedrooms.” ..............................  18

Rand-McNally Highway Atlas of the United States,
43rd Ed. 1967 ...................................................................  7

Reich, The Law of the Planned Society, 75 Yale L. J.
1227 (1966) .....................................................................  18

S. Rep. No. 2044, 81st Cong., 2nd Sess., 8 (1950) ........... 25

Senate Subcommittee on Public Roads, Hearings to 
Review Policies Relating to Urban Highway Plan­
ning Design and Location ............................................  18

PAGE



V

Stern and Gressman, Supreme Court Practice, 3rd Ed.,

PAGE

U. S. Department of Housing and Urban Development, 
Urban Renewal Manual, §10-1......................................  26

4 Wigmore on Evidence, 3d Ed., §1352 ..........................  33

9 Wigmore on Evidence, 3d Ed., §2534 ..........................  33



In t h e

^uprrmp (Unurt uf tlir Ituitrii Stairs
October Term, 1967 

No..............

Nashville 1-40 S teebing Committee, an Unincorporated 
Association, and Its Individual Members, etc., et al,

v.

Petitioners,

B ufokd E llington, Governor, State of Tennessee; Charles 
W. S peight, Commissioner of Highways, State of Ten­
nessee ; and B everly B riley, Mayor of the Metropolitan 
Government of Nashville and Davidson County, Ten­
nessee.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for 
the Sixth Circuit, entered in the above entitled case on 
December 18, 1967.1 1

1 The petitioners are Nashville 1-40 Steering Committee, an unincor­
porated association, and its members, Flournoy A . Coles, Jr., Chairman; 
and Mansfield Douglas, III , Newt A . Solomon, Inman Otey, Flem B. 
Otey, III , Harold M. Love, William H. Fort, N. E. Douglas, J. L. Camp­
bell, A . L. Porter, J. E. Vaughn, H. H. Turpen, Eleanor Landreau, Paul 
Puryear, Leonard Beech, Parker Coddington, Louis Aatdl, Andrew White, 
Nelson Fuson, E. H. Mitchell, Noella Mitchell, Henry Tomes, N. Samuel 
Jones, Marian Fuson, D. W . Williams, L. L. Dickerson, Webster Cash, 
James L. Garrett, Odessa Hoggatt and Martha Ragland.



2

Citations to Opinions Below

The memorandum opinion of the District Court, filed 
November 2, 1967, is unreported and is printed in the ap­
pendix, infra pp. la-3a. The opinion of the Court of Ap­
peals is not yet reported and is printed in the appendix, 
infra pp. 4a-16a.

Jurisdiction

The judgment of the Court of Appeals was entered on 
December 18, 1967 (appendix p. 18a, infra). The jurisdic­
tion of this Court is invoked under 28 U.S.C. Section 
1254(1).

Questions Presented

Whether petitioners are entitled to an injunction re­
straining the construction in North Nashville, Tennessee, 
a predominantly Negro area, of a three mile section of an 
interstate highway which traverses Tennessee, on the 
ground that:

(1) The route is racially discriminatory, in violation of 
the due process and equal protection clauses of the Four­
teenth Amendment to the Constitution of the United States;

(2) State highway officials failed to comply with Section 
116(c) of the Federal-Aid Highway Act of 1956 (70 Stat. 
385) by not having a public hearing with proper notice on 
the proposed route;

(3) State highway officials failed to comply with Section 
116(c) mandating a consideration of the “economic effects” 
of proposed highway location.



3

Statute and Regulation Involved

1. Section 116(c) of the Federal-Aid Highway Act of 
1956, 70 Stat. 385, provides as follows:2

Sec. 116. Declarations Of Policy With Respect To 
Federal-Aid Highway Program.

• • •
(c) Public Hearings.—Any State highway depart­

ment which submits plans for a Federal-aid highway 
project involving the bypassing of, or going through, 
any city, town, or village, either incorporated or un­
incorporated, shall certify to the Commissioner of Pub­
lic Roads that it has had public hearings, or has af­
forded the opportunity for such hearings, and has 
considered the economic effects of such a location: 
Provided, That, if such hearings have been held, a copy

2 The currently applicable law, which the court below said does not 
differ materially from the 1956 version quoted above, is found in 23 
U.S.C. §128. The amendments to the 1956 version were added by the 
Federal-Aid Highway Act of 1958, 72 Stat. 89. The laws were recodified 
and Title 23 was enacted into positive law by P.L. 85-767, 72 Stat. 885, 
902. The current 23 U.S.C. §128 states:

§128. Public hearings.— (a) Any State highway department which 
submits plans for a Federal-aid highway project involving the by­
passing of, or going through, any city, town, or village, either in­
corporated or unincorporated, shall certify to the Secretary that 
it has had public hearings, or has afforded the opportunity for such 
hearings, and has considered the economic effects of such a loca­
tion. Any State highway department which submits plans for an 
Interstate System project shall certify to the Secretary that it has 
had public hearings at a convenient location, or has afforded the 
opportunity for such hearings, for the purpose of enabling persons 
in rural areas through or contiguous to whose property the high­
way will pass to express any objections they may have to the pro­
posed location of such highway.

(b) When hearings have been held under subsection (a), the State 
highway department shall submit a copy of the transcript of said 
hearings to the Secretary, together with the certification. (Aug. 27, 
1958, P.L. 85-767, 72 Stat. 902.)



4

of the transcript of said hearings shall be submitted 
to the Commissioner of Public Roads, together with the 
certification.

2. Title 23, C.F.R., §1.6 Federal-aid highway systems.

(a) Selection or designation. To insure continuity 
in the direction of expenditures of available funds, 
systems of Federal-aid highways are selected or desig­
nated by any State that desires to avail itself through 
its State highway department of the benefits of Federal 
aid for highways. Upon approval by the Administrator 
of the selections or designations by a State highway 
department, such highways shall become portions of 
the respective Federal-aid highway systems, and all 
Federal-aid apportionments shall be expended thereon.

(b) Revisions. A  State highway department may 
propose revisions, including additions, deletions or 
other changes, in the routes comprising the approved 
Federal-aid highway systems. Any such revision shall 
become effective only upon approval thereof by the 
Administrator upon a determination that such revision 
is in the public interest and consistent with Federal 
laws. There is no predetermined time limit for the 
submission of the full selection of the systems.

(c) Selection considerations. Each Federal-aid sys­
tem shall be so selected or designated as to promote 
the general welfare and the national and civil defense 
and to become the pattern for a long-range program 
of highway development to serve the major classes of 
highway traffic broadly identified as (1) interstate or 
interregional; (2) city-to-city primary, either interstate 
or intrastate; (3) rural secondary or farm-to-market; 
and (4) intraurban. The conservation and development 
of natural resources, the advancement of economic



5

and social values, and the promotion of desirable land 
utilization, as well as the existing and potential high­
way traffic and other pertinent criteria are to be con­
sidered when selecting highways to be added to a 
Federal-aid system or when proposing revisions of a 
previously approved Federal-aid system.

(d) * * *

(e) * * ‘
(Published in the Federal Register, 25 F.R. 4162, May 
11, 1960).

Statement of the Case

Summary o f  Proceedings in the Courts Belou)

Petitioners seek an injunction restraining consrtuction of 
a three-mile segment of Interstate Highway 40 (hereinafter 
called 1-40) which has been routed so as to pass through a 
Negro neighborhood in Nashville, Tennessee known as 
North Nashville. The proceedings below were greatly ex­
pedited. The complaint filed October 26,1967, in the District 
Court for the Middle District of Tennessee, alleged federal 
jurisdiction under 28 U.S.C. §§1331 (a) and 1343(3) and 42 
U.S.C. §§1981,1982,1983 and 2000d. Petitioners assert that 
the proposed route is racially discriminatory in violation of 
their Fourteenth Amendment rights and also that the 
state highway department failed to comply with Section 
116(c) of the Federal-Aid Highway Act of 1956 by not giv­
ing proper notice of a public hearing on the proposed route 
and by not adequately considering the “ economic effects” 
of the proposed route in accordance with federal statutory 
requirements. Petitioners are a group of thirty business­
men, ministers, faculty members of Fisk, Meharry and 
Vanderbilt Universities, officials of civic and civil rights 
organizations, and residents of North Nashville who formed



6

an association to oppose the proposed routing of 1-40. Re­
spondents are the Governor of Tennessee, the State Com­
missioner of Highways and Nashville’s Metropolitan 
Mayor.

When suit was filed the District Court promptly held an 
evidentiary hearing on a motion for preliminary injunction. 
The District Court denied relief, finding that although peti­
tioners proved that “ the proposed route will have an ad­
verse effect on the business life and educational institutions 
of the North Nashville community”  and that “ the considera­
tion given to the total aspect of the link on the North Nash­
ville community was inadequate,”  there was no proof of 
“ a deliberate purpose to discriminate” racially (2a). The 
Court rejected plaintiffs’ statutory arguments stating that 
they were matters to be decided by the Bureau of Public 
Roads of the Department of Transportation (la ). The ac­
tion was dismissed as to the Mayor of Metropolitan Nash­
ville and Davidson County (la ).

To preserve the status quo pending appeal a panel of the 
Sixth Circuit on November 13, 1967, restrained the Com­
missioner of Highways from proceeding with construction 
of the road segment or awarding contracts. After an ex­
pedited appeal, the Court of Appeals affirmed, except as to 
the order dismissing the cause against Mayor Briley which 
was reversed (15a-16a). The per curiam opinion rendered 
December 18, 1967, upheld petitioners’ standing to main­
tain the action, relying upon Scenic Hudson Preservation 
Conference v. Federal Power Commission, 354 F.2d 608 
(2nd Cir. 1965), cert. den. 384 U.S. 941 (6a-7a). The Court 
ruled that the notice of the public hearing on the road was 
given in “an unsatisfactory way” and that the incomplete 
transcript of the hearing “leaves much to be desired,” but 
nevertheless declined to grant relief stating that due to ex­
tensive publicity no literate citizen of the community could



7

have been unaware of the approximate location of the high­
way (7a). The petitioners’ statutory argument that the 
highway department failed to consider the economic effects 
of the proposed location was rejected by the court, which 
relied upon the certification of a state official that economic 
effects had been considered and “ the presumption of regu­
larity of public records and compliance by public officials 
with duties imposed upon them by statute” (12a). Notwith­
standing this holding, the court below in another portion 
of its opinion quoted with approval the trial judge’s finding 
that “ The proof shows that the consideration given to the 
total impact of the link of 1-40 on the North Nashville com­
munity was inadequate” (14a). As to the equal protection 
claim, the Court said the record failed “ to show any intent 
or purpose of racial discrimination” and rejected peti­
tioners’ argument that they were not required to prove 
discriminatory motive (12a).

Finally, the Court ruled that the District Judge had dis­
cretion to deny relief considering the balance of the equi­
ties (13a-14a).

Summary o f  Facts

This lawsuit involves a proposed three mile long segment 
of interstate highway route 1-40 located within the city of 
Nashville, Tennessee.3 It is a small part of a thousand mile 
system of interstate roads planned in Tennessee (Tr. 54-55), 
and the forty-one thousand mile national interstate system

3 Route 1-40, when completed, will stretch from Greensboro, North 
Carolina to Barstow, California. Rand-McNally Highway Atlas of the 
United States, 43rd Ed. 1967, inside front cover. The court of appeals 
states that the section in question is 3.6 miles long (4a). By so stating 
the court probably included a section of the inner loop between a pro­
posed interchange at 11th and 12th Avenues North and the Cumberland 
River. Petitioners are not asking that the construction of this section—  
which is not a part of 1-40— be enjoined. (See map, plaintiffs ex­
hibit 31.)



8

planned under the Federal-Aid Highway program. The 
disputed route is designed to connect the westbound leg 
of the highway leading toward Memphis with an “ inner 
loop” circling the center of Nashville and connecting other 
interstate roads. The disputed segment also forms the 
northern part of a designed outer half-loop road (Plf. Exh. 
4). It cuts across the heart of the section called North Nash­
ville, the principal Negro area of the City. Jefferson Street 
is the axis of the Negro ghetto (Tr. 32-33,180, 262).

There are 234 Negro owned businesses in North Nash­
ville, or more than 80% of the Negro owned and operated 
businesses in the entire county (Tr. 32, 250), and most of 
them are on Jefferson Street (Tr. 33, Plf. Exh. 8, p. 9). 
These businesses have capital assets of about $4,680,000 
and an annual gross volume of business averaging 
$11,700,000 (Tr. 251). The undisputed evidence was that 
virtually all these Negro businesses will either be destroyed 
or seriously damaged by the proposed route and its ac­
companying arterial roads which will take the property 
occupied by many, and will disrupt those that remain by 
fragmenting and restricting their service areas and sep­
arating them from their customers (Tr. 33). Relocation will 
be impossible for many of the businesses because there is 
little other commercially zoned property in Negro areas 
and racial discrimination will bar them from white areas 
(Tr. 254-255). The testimony also showed that in other 
areas of the City the interstate highway plans had been 
designed to minimize or avoid damage to white-owned 
businesses (Tr. 27-28).4

Three Negro institutions of higher learning, Fisk Uni­
versity, Meliarry Medical College and Tennessee A&I State

4 In fact, petitioners’ expert witness, a city planner, testified that the 
natural beneficiaries of the destruction of the Negro owned businesses will 
be white owned establishments north of the proposed route (Tr. 34).



9

University, having substantial capital plants and large en­
rollments (Tr. 202-03, 222-23, Plf. Exh. 28) will also be 
damaged by the highway plans. The interstate route will 
separate Tennessee A&I State University on the northwest 
from Fisk and Meharry on the northeast, isolating Ten­
nessee A&I in a narrow strip between 1-40 and the Cum­
berland River, and isolating Fisk and Meharry between 
1-40 and the industrial and downtown sector to the south 
(Tr. 30-31). Major arterial routes planned in connection 
with the interstate highway will further damage the insti­
tutions by separating Fisk and Meharry, and channeling 
heavy traffic through their campus areas (Plf. Exh. 26).5 
The highway will also damage a new neighborhood health 
center planned by Meharry Medical College by isolating 
the population it serves (Tr. 224). Fifty-one Negro 
churches in North Nashville would be detrimentally affected 
by the 1-40 route: the property of two churches has been 
taken for the route and two others have been notified that 
their buildings will be taken (Tr. 232); the other 47 will be 
separated from 20 to 75 percent of their memberships 
(Tr. 234).

Whereas the effects of the highway program on Negro 
institutions were not considered, the effects of the program 
on white institutions were carefully appraised. As part of 
a reevaluation of its interstate highway program in Nash­
ville, including the major arterials serving the interstate 
system, the state highway department undertook an exten­
sive parking study of the City’s white University Center 
(Vanderbilt University and Peabody and Scaritt Colleges) 
(Plf. Exh. No. 7). Moreover, the state highway department 
plans to coordinate its highway plans with several local 
urban renewal projects, relocate a state highway, and re­

6 The State Department of Highways and the Metropolitan Govern­
ment jointly planned major arterial routes and their relationship to the 
interstate highway program. (See plaintiffs exhibit No. 5.)



10

move all through traffic from the white University Center 
area (Plf. Exh. No. 5, pp. 10-11). It is planning to do so 
while planning at the same time to intensify traffic in the 
Negro university area.

Both courts below agreed that the damage to the Negro 
institutions of North Nashville had been amply demon­
strated. The Court of Appeals wrote that:

. . .  the District Judge found that “ [p]laintiffs have 
shown that the proposed route will have an adverse 
effect on the business life and educational institutions 
of the North Nashville community. The proof shows 
that the consideration given to the total impact of the 
link of 1-40 on the North Nashville community was 
inadequate.” He pointed out that the business section 
of Jefferson Street will be “gravely affected.”  This 
Court agrees with these conclusions. For example, it 
is shown that the blocking of other streets will result 
in a heavy increase in traffic through the campus of 
Fisk University and on the street between this univer­
sity and Meharry Medical College. A public park used 
predominantly by Negroes will be destroyed. Many 
business establishments owned by Negroes will have to 
be relocated or closed (14a).

There was also substantial evidence to support the trial 
court finding (quoted above) that there was “ inadequate” 
consideration of the adverse effect of the route on the com­
munity. Boute 1-40 was planned as a part of the interstate 
system of highways begun under the Federal-Aid Highway 
Act of 1956 (70 Stat. 385, Tit. 23 U.S.C. §§101 et seq.). 
Even before the 1956 law was passed, but in anticipation 
of it (Tr. 371), planning of the interstate roads within 
Nashville was begun by a city-county planning agency, 
which commissioned the engineering firm of Clarke and



11

Rapuano to undertake a study and propose routes (Plain­
tiffs Exhibits 35, 36). Except for the link now in question, 
the routes finally adopted, including the basic inner and 
outer loop plans, were substantially the same as those rec­
ommended in 1955 by Clarke and Rapuano (Compare 
Plaintiffs Exhibit 31 with Exhibits 35 and 36). But the 
Clarke and Rapuano recommendations for the road seg­
ment which would serve the function of the presently dis­
puted segment were quite different from the plan subse­
quently adopted. Clarke and Rapuano’s Memphis leg would 
have continued on a straight line following the shortest 
distance to the to the center of the city until it joined the 
inner loop (Plaintiffs Exhibit Nos. 35 and 36). This route 
would have produced none of the adverse effects on the 
North Nashville Negro community. It would not have 
affected the Negro businesses or the educational institutions 
in the manner of the present proposed route. The consult­
ing engineer’s report recommending the route stated that 
it was based on many factors, including a consideration of 
“ the density of population” , the “ land use pattern” , and 
“ existing neigborhoods” (Plaintiffs Ex. Nos. 35 and 36). 
Shortly thereafter the 1956 Federal-Aid Highway Act placed 
initial responsibility for determining interstate system 
highway routes in the hands of state highway departments 
(23 U.S.C. §106). The Tennessee highway department ap­
proved the present route plan in 1957, after consultations 
with the Nashville planning agency, federal officials, and 
the Clarke and Rapuano firm which was also hired by the 
state highway department in a consulting role. It has 
never been explained why the original Clarke and Rapuano 
route for the Memphis leg connecting with the inner loop 
was abandoned. In place of the straight line into the center 
of the city originally proposed, there was substituted the 
present route which veers off into the Negro community.



12

At the trial in this case, a high state highway official 
at first denied knowledge of the existence of the original 
Clarke and Rapuano route (Tr. 372-373), and admitted it 
only when confronted with the maps and minutes of three 
meetings he attended to discuss the route.6 No state official 
offered any explanation for abandoning the original route 
and substituting the new route. Petitioners’ expert witness 
(Mr. Yale Rabin, a city planner) examined the files of the 
Metropolitan planning agency (which participated in all 
stages of the planning of the highway) and found no docu­
ments explaining the change (Tr. 486). Despite persistent 
questioning, Mr. Leon Cantrell, the highway location engi­
neer, never really said why the route was changed to go 
through the Negro community. First he said that the rea­
sons for the change would “ take me a week to tell you” 
(Tr. 385). When pressed for specifics he said that “all of 
our studies pointed to the fact that it was the most sound 
thing that we could do towards making the improvement 
through the city” (Tr. 388). He finally said that he meant 
studies by the Planning and Research Department (Tr. 
388-389). Counsel persisted and questioned the State High­
way Department’s planning and research director, Mr. 
Clarence Harmon, about the existence of such studies. Mr. 
Harmon admitted that his files contained no such studies 
about the economic impact of the present route on the 
North Nashville community. Mr. Harmon testified as 
follows:

Q. Yes. Is there any information in your files at 
all with regard to the—any economic studies made 
by the State Department of Highways, State Highway 
Department, with regard to the North Nashville area! 
A. Not that I can recall at this time, Mr. Williams 
(Tr. 466-467).

6 Plaintiffs exhibit No. 34 is a record of records on July 11, July 12 
and July 13, 1955.



13

At one point in his testimony, Mr. Harmon indicated 
such studies might exist, but he quickly retracted that 
testimony when asked to produce the volumes:

Q. Will you bring them down after lunch and could 
you at lunchtime pinpoint the data which show— 
which shows the economic impact— A. (Interposing) 
No. There is none that shows economic impact.

Q. All right, sir. Then, there is no data that reflects 
the economic impact of the location of this highway 
on the Negro community in North Nashville, is there? 
A. No, sir. That’s right. There isn’t (Tr. 471).

The Tennessee State Highway Department held a public 
hearing on the proposed interstate system for Nashville 
at 9:30 a.m. on May 15, 1957 (Plaintiffs’ Ex. No. 1). There 
have been no public hearings on these roads in the suc­
ceeding ten years. The court below held that the notice 
of the hearing, by posting in several post offices and 
delivering copies to the Mayor and County Judge was 
“unsatisfactory . . . especially when for some unexplained 
reason the notice announced the hearing for May 14, and 
it actually was held the following day, on May 15” (10a). 
There were no notices at all posted in the Negro sections of 
town (9a). The largest local newspaper carried no mention 
of the hearing and three reporters (one of whom is now city 
editor of the Nashville Tennessean) who covered the high­
way story at the time and wrote numerous articles about 
the highway testified that they did not know or write 
anything about the hearing (Tr. 128, 137, 143). The hear­
ing was recorded by a tape recorder and later transcribed. 
The court below said that the hearing manuscript:

. . . leaves much to be desired as a manuscript of 
a public hearing, since the recording device failed 
to pick up many questions from the audience. The 
manuscript contains only the statements and answers



14

of the Commissioner and other representatives of 
the highway department and what was said from the 
platform where the microphones were located (10a).

There was no discussion during the hearing of the impact 
of the road on the North Nashville community. Since the 
transcript contains no names of private citizens who asked 
questions, none could be called as witnesses to explain 
what occurred at the hearing, or what did not occur. The 
District Court “ assumed” that petitioners had made out a 
prima facie case of lack of proper notice as the colloquy 
quoted in the margin indicates.7

Two days after the hearing, on May 17,1957, an attorney 
for the highway department signed a certificate which he 
attached to the hearing transcript stating that he had read 
the transcript, and that the highway department had con­
sidered the economic effects of the location of the project 
and was of the opinion the project was properly located. 
Subsequently, in 1958, federal officials approved the plan 
and authorized the expenditure of federal funds to acquire 
land in the area now in question (Tr. 418). However, not 
until 1965 and 1966 did the state highway department move 
to acquire land in the area (Tr. 419, 421), and not until 
1967 did the board take the final steps leading toward 
awarding a construction contract (Tr. 438).

7 Mr. Williams: Well, Your Honor, if Your Honor pleases, I have a 
whole lot more. I have some additional witnesses on this question of 
notice.

The Court: Well, I ’m not interested in any further ones on the ques­
tion of notice. I  tell you quite frankly, Mr. Williams, as far as I can 
tell about the law on this notice thing that that raises a question between 
the Federal Government and State as to paying the money. That seems to 
be the way the cases have been decided and have nothing to do with any­
thing further.

So, let’s just assume that you have established by certain proof subject 
to their coming in if they want to offer something else, you have made 
out a prima facie case on that for whatever value it may have (Tr. 145).



15

Throughout the decade from 1957 to 1967 Negro citizens 
of North Nashville from time to time protested the plan 
to various officials. (Tr. 118-119, 151-158, 180, 258, 265, 
267-268, 286-287, 315-316). From 1957 to 1967 every pro­
test and every inquiry was met with official statements by 
city as well as highway department officers that the high­
way plans were “ preliminary,” were “not final,” and were 
“ subject to change,”  and that the exact location of the road 
was still uncertain. At least seven plaintiffs’ "witnesses 
testified to such responses to their inquiries; the seven 
included two Negro councilmen representing the affected 
areas (Harold Love and John Driver) (Tr. 112-113, 118, 
294-295), three civic organization leaders (Mrs. Blackman, 
Mrs. Caruthers and Mrs. Fuson) (Tr. 169, 184-185, 312), 
a businessman (Mr. Otey) (Tr. 258, 285), and a Fisk Uni­
versity faculty member (Mr. Vaughn) (Tr. 306-307). None 
of them were able to discover the precise route of 1-40 
through North Nashville, although among them they talked 
with and heard speeches by officials in both the city and 
state agencies involved in the highway planning.

Mr. Leon Cantrell, an engineer for the Tennessee high­
way department for more than 45 years, described the route 
selection process. He said that first the engineer estab­
lishes “a corridor through which to make some studies” 
(Tr. 390). Then a “preliminary location or preliminary 
line is projected. That doesn’t necessarily mean that is 
where it is going to be” (Tr. 391). Eventually the line is 
finalized. He said, “You don’t get the line tied down until 
just about the time it is ready to let the contract. I f  you 
tie it down more quickly than that, you will be ill-advised” 
(Tr. 391). Cantrell said that the 1957 plans were corridor 
locations (including, specifically, the maps published in 
newspapers at that time (Tr. 396-397)) and that a “ corridor 
could be from five hundred feet to a mile wide”  (Tr. 372-



1 6

373), although normally in an urban area it would be 
“within several blocks” (Tr. 398).

The highway department’s right of way acquisition en­
gineer, J. K. Bilbrey, testified that the state got authority 
to acquire real estate along the route from 35th Avenue 
to 18th Avenue on July 15, 1958 (Tr. 419). But acquisition 
of the bulk of the parcels did not begin until October 15, 
1965 (Tr. 420). Similarly, with respect to the segment 
from 18th Avenue to the Cumberland River, acquisition was 
authorized in September 1958, but except for a few parcels 
acquisition did not begin until May 13, 1966 (Tr. 420- 
421).

Mr. Bilbrey testified that in an area from 48th Avenue 
to the River (an area larger than, but including the dis­
puted segment) all but 90 of 1,100 parcels had been acquired 
by the State, at an overall cost between nine and ten million 
dollars (Tr. 412-413). Many of the business properties 
along Jefferson Street still stand and are in operation 
although some demolition work has begun (Tr. 426). Some 
residential property already acquired by the City is also 
still occupied (for example, see. Tr. 193).

This lawsuit was filed October 26,1967, when the highway 
department announced imminent plans to let a construction 
contract for the road segment. The plaintiffs had been un­
successful in efforts to persuade the federal and local 
authorities to postpone letting contracts for a 90 day period 
of further study and negotiation (Tr. 155-158). They were 
unable to get such a delay notwithstanding a unanimous 
resolution of the Nashville and Davidson County Metro­
politan Council supporting their request (Tr. 296, Plaintiffs 
Ex. 33).



17

REASONS FOR GRANTING THE WRIT

I.
Introduction.

The crisis of the cities is compounded of many elements. 
This case is of great importance for it affords the oppor­
tunity of applying the rule of law and the Constitution 
to some of them. In particular, the case involves the 
impact which the vast federal highway program has had 
on urban areas and legal rules which would regulate that 
program’s impact on minority communities.

Homer Bigart of the New York Times recently has 
written that the federal road building program has com­
pounded the “misery of the dispossessed:”

The program has sent great rivers of concrete 
creeping like lava through residential neighborhoods 
and commercial areas, dislocating families, schools, 
churches and businesses. Parks have been torn up, 
historic sites engulfed. Because the slums afford the 
easiest and cheapest corridors, it was the ghetto fam­
ilies that were most often uprooted.

Whenever the slums were black, the misery of the 
dispossessed was compounded. Imprisoned in the core 
city by de facto housing segregation, the dispos­
sessed Negroes were usually unable to obtain other 
dwellings except at much higher rent. This was a 
contributing factor to the racial tensions that ex­
ploded in last summer’s riots. (New York Times, No­



18

vember 13, 1967, Late City Edition, page 1, “U. S. 
Road Plans Periled by Rising Urban Hostility.” )8

It is estimated that 146,950 households will be displaced 
by federally aided highway construction in the three year 
period from July 1, 1967, to June 30, 1970. Similarly, 
16,679 businesses and non-profit organizations will be dis­
placed. The vast majority are in urban centers.9 A Senate 
committee began hearings to consider the problem of urban 
highway location on November 14, 1967. (Senate Subcom­
mittee on Public Roads, Hearings to Review Policies Re­
lating to Urban Highway Planning Design and Location).

Professor Charles A. Reich has written vividly about 
suburban housewives, elderly widows, men in business suits 
and off-duty policemen attempting to bar the way of bull­
dozers about to wreck historic homes and cut down age 
old trees to push interstate highways forward. Reich, 
The Law of the Planned Society, 75 Y a l e  L. J. 1227 (1966). 
Professor Reich observes that:

. . .  it seems increasingly difficult for the citizen 
to make effective contact with government. Citizens 
are rarely informed when the agency makes its deci­
sion ; their first notice is often the roar of a bulldozer.

8 More recently, the same newspaper reported:
. . .  in a surprisingly large number of other American cities 

[i.e., other than Washington, D. C.]—  New York, Philadelphia, Balti­
more, Chicago, Cleveland, St. Louis, New Orleans, Nashville, San 
Francisco and Seattle— the angry cries of similar neighborhood 
groups have helped bring the bulldozers to a halt or diverted them. 
As a result, a vast re-thinking of highway concepts is underway at 
top government levels. (New York Times, December 31, 1967, page 
E-7, “White Roads Through Black Bedrooms.” )

9 House Committee on Public Works, 90th Cong., 1st Sess., Highway 
Relocation Assistance Study (transmitted by Secretary of Transportation 
to Congress) (Comm. Print No. 9, July 1967).



19

Even when notice is available many agencies have no 
regular procedures for hearing citizens’ protests. Nor 
are agencies easily controlled through elections; . . . .  
Nor does there appear to be much hope of relief 
from the law and the courts. . . . the courts almost 
uniformly refuse to interfere. Lawyers who practice 
before government agencies and students of admin­
istrative law are often as baffled as local demonstrators 
(id. at 1229).

Rules of law exist— as this petition demonstrates—to deal 
with these issues reguarly and according to standards. 
This petition asks that those rules be applied. In the in­
stant case, both courts below went to unusual lengths to 
express a sense of agreement with petitioners’ position. 
Judge Gray expressed grave doubts about the “wisdom of 
the selection” of the 1-40 route (3a). The Court of Appeals 
“ regretted” that petitioners’ requests for delay and more 
study were not granted (14a) and speculated that “ there 
yet may be hope that some of the severe damage to the 
Negro community and institutions can be reduced if not 
relieved in their entirety” in view of reported statements 
of federal officials about conducting further studies (15a). 
But both courts deferred to the wisdom of the highway 
engineers— (“ The routing of highways is the prerogative 
of the executive department of government, not the judi­
ciary” (12a; emphasis added)— and denied relief. Funda­
mentally, the courts below did not acknowledge the func­
tion of law and the Constitution as relevant to petitioners’ 
problem. With respect, the root fallacy of the lower 
courts’ view of this case is encapsulated in the quoted 
sentence. All powers of every department of government, 
whether concerning highways or anything else, must be 
exercised in conformity with the Constitution and laws.



2 0

The word “prerogative,” with its unfortunate history, can­
not carve out an exception.

Petitioners submit that the courts of the United States 
have a role defined by law in such controversies, where, 
as here, state officials have, by any reasonable appraisal, 
plainly engaged in racial discrimination in violation of the 
Fourteenth Amendment and have failed to conform to re­
quirements laid down by the Congress for the protection of 
citizens in petitioners’ situation.

This case should be reviewed despite its non-final status 
because there are “ important and clear cut issue [s] of law 
fundamental to the further conduct of the case . . . [which] 
would otherwise qualify as a basis for certiorari.” Stern 
and Gressman, Supreme Court Practice, 3rd Ed., pp. 148- 
149, citing United States v. General Motors Corp., 323 
U.S. 373, 377; Land v. Dollar, 330 U.S. 731, 734, n. 2; 
Larson v. Domestic <& Foreign Commerce Corp., 337 U.S. 
682, 685, n. 3. Any appraisal of the exercise by the Dis­
trict Court of its equitable discretion must take into ac­
count the lower court’s erroneous view of the law. It is 
by no means clear that the trial court would have exercised 
“discretion” to deny all relief if the court had understood 
the law and the Constitution to be as petitioners urge. In 
any event, the trial court had no “ discretion” to refuse to 
redress a plain violation of the Constitution.

I f review here is denied, the damage which petitioners 
seek to avoid will in all likelihood be completed before 
litigation on an application for final injunction is concluded.



21

n.
The Highway Route Is Racially Discriminatory in 

Violation of the Fourteenth Amendment.

If respondents had expressly provided that this span of 
1-40 “be so located as to injure as much Negro business 
and other property, and as little white property as possi­
ble,”  no court would hesitate to strike it down. Petitioners’ 
proof, accepted by both courts below, showed a close ap­
proximation, in effect, to the route that would have been 
followed had the quoted directive been in force. The courts 
below erred by applying an erroneous requirement that 
petitioners, in addition to this practical equivalence, prove 
a racially discriminatory “motive” or “ intent” where they 
plainly established the racially discriminatory effect of the 
highway routing. They proved, and the courts below ac­
knowledged that they proved, that the highway link sub­
stantially harmed Negroes. It is uncontradicted that the 
interstate highway plan visits no such harm on white com­
munities, businesses, churches and educational complexes. 
There was uncontradicted evidence of affirmative efforts 
made by the highway planners to avoid such damage to 
whites. Moreover, a practical alternative route portending 
no harmful effects for Negroes was available, was first 
recommended by engineering consultants, and was cast 
aside for no recorded or explained reason. None of the 
state highway planners offered any reason to justify the 
route chosen, or any explanation for the decision to visit 
such incalculable harm on the Negro community. Can such 
an overwhelming case of racial discrimination escape con­
demnation because the state officials have not confessed a 
racial motivation?

No such proof of motivation has been found necessary in 
several classic cases of racial discrimination in this Court,



22

Tick Wo v. Hopkins, 118 U.S. 356; Guinn v. United States, 
238 U.S. 347; and Gomillion v. Lightfoot, 364 U.S. 339. 
Yick Wo, who had a wooden laundry building, was con­
victed under a law forbidding the operation of laundries 
without official permission, except in brick or stone build­
ings. In the city there were 320 laundries, 310 of them 
were wooden, and 240 were operated by Chinese persons. 
Yick Wo and 200 of his Chinese countrymen were denied 
permission to maintain laundries. He and 150 Chinese 
persons were arrested under the law and the 80 laundry 
operators who were not Chinese were left unmolested. The 
discrimination was condemned because there was “practi­
cally . . . unjust and illegal discrimination between persons 
in similar circumstances” (118 U.S. at 374). The effect was 
to discriminate against Chinese laundry operators, and that 
was enough without proof of hostile motivation.

Similarly, the discriminatory effect of the “grandfather 
clause” condemned in the Guinn case, supra, was sufficient 
to settle the matter. The government did not prove the 
motive of the legislators; it won by showing that the prac­
tical effect of the laws was to prevent Negroes from voting. 
And in Gomillion v. Lightfoot, supra, where the interest of 
Negroes was unmistakably attacked without their ever be­
ing named, the Court found the conclusion of discrimina­
tion irresistible from factual allegations simply describing 
the effect of the challenged law on Negroes, e.g., excluding 
them all, and not excluding whites, from Tuskegee.

We believe the discrimination showing in the instant case 
is as plain as in Yick Wo, Guinn and Gomillion.

It is plain that Negroes have been treated in a manner 
extremely detrimental to their interests, that the burden 
falls upon them unequally, and that no justification for the 
imposition appears. Whether the cause is arbitrariness, in­



23

difference or deliberate hostility, the result of unequal treat­
ment is constitutionally prohibited, as “ it is of no consola­
tion to an individual denied the equal protection of the laws 
that it was done in good faith.” Burton v. Wilmington 
Parking Authority, 365 U.S. 715, 725.

in.
There Was no Public Hearing With Proper Notice 

as Required by the Federal Highway Statute.

The Tennessee Highway Department failed to comply 
with the requirement established by the Congress in §116 (c) 
of the Federal-Aid Highway Act of 1956 that a state 
highway department submitting a plan for a federal-aid 
highway project certify “ that it has had public hearings, 
or has afforded opportunity for such hearings, and has 
considered the economic effects of such a location.” Peti­
tioners contended that the highway department failed to 
give any adequate notice of the hearing held on May 15, 
1957. The district judge stated during the trial that he 
assumed petitioners had made a prima facie case on the 
notice question (see note 7, supra). The Court of Appeals 
expressly held that the Tennessee Highway Department 
used “an unsatisfactory way to give notice of a public 
hearing” (Appendix 10a).10

Both courts below rejected petitioners’ arguments based 
on the hearing requirement but did so on different rea­
soning. Accordingly, we discuss first the District Court 
reasoning and then that of the Court of Appeals.

10 Compare the scanty notice in the present ease with the elaborate ef­
forts by another state highway department to give notice which are re­
ported in Linnecke v. Department of Highways, 76 Nev. 26, 348 P.2d 235, 
236-237 (1960) (notice by publication in newspaper, by extensive press 
coverage and by distribution of 30,000 pamphlets describing the freeway 
to utility users).



24

District Judge Gray stated in his oral findings and 
conclusions that:

The court finds as a matter of fact that a hearing 
was held and holds that the questions of insufficiency 
of notice, inadequacy of the hearing, and of the tran­
script thereof are questions addressing themselves to 
the Bureau of Public Roads of the Department of 
Transportation (la ) .11

But there is no warrant for the refusal of the court to 
implement the Congressional policy expressed in §116(c). 
The court’s reasoning is bottomed on the absence of a 
state law requirement of a hearing and thus defeats the 
Congressional policy. The plain purpose of the Congress 
in enacting the public hearing requirement was to provide 
an opportunity for citizens and communities affected by 
the roads to have a voice before highway plans were 
presented by the States to the federal authorities for ap­
proval. This is the common sense interpretation of §116(c) 
and it is adequately supported by the legislative history. 
Section 116(c) of the Federal-Aid Highway Act of 1956, 
70 Stat. 385, was enacted to broaden a pre-existing require- 11

11 Judge Gray cited and relied on three lower court decisions which had 
expressed the view that citizens could not complain about the failure of 
highway officials to afford a hearing. Hoffman v. Stevens, 177 F. Supp. 
898, 903 (M.D. Pa. 1959); Piekarski v. Smith, 38 Del. Ch. 402, 147 A.2d 
176 (1958), aff’d 153 A.2d 587 (Sup. Ct. Del. 1959); Linnecke v. Depart­
ment of Highways, 76 Nev. 26, 348 P.2d 235 (1960). These courts rea­
soned that since state authorities under state law could condemn land for 
highways without conducting public hearings, a failure to comply with 
the federal statutory requirement of a public hearing was a matter which 
could be corrected only by the federal administrative officials withholding 
federal funding. The line of reasoning is exemplified by Hoffman v. 
Stevens where the court said: “Under Pennsylvania law and policy, ab­
sent federal aid, such hearings are not required or held. A t best, failure 
to afford a hearing might give rise to a dispute between the Secretary of 
Commerce and the Pennsylvania Department of Highways as to the alloca­
tion and use of federal funds” (177 F. Supp. at 903).



25

ment which had been enacted in a 1950 highway act.1! 
The legislative history of the 1950 provision requiring 
public hearings (§13 Federal-Aid Highway Act of 1950, 
64 Stat. 791)12 13 plainly demonstrates a purpose to insure 
“ that the residents of the cities or towns are given the 
opportunity to express their views” on highway locations 
(S. Rep. No. 2044, 81st Cong., 2nd Sess., 8 (1950)). The 
debate on an amendment to delete the hearing provision 
in the Senate shows that the proponents of the bill wanted 
local citizens to have an opportunity to be heard in protest 
against the decisions of highway engineers. 96 Cong. Rec. 
13005-13006 (1950), remarks of Senators Saltonstall, 
Chavez and Kerr.14

12 The Conference Committee Report on the 1956 act stated that “this 
provision continues and broadens the existing requirements in § 13 of 
the Federal-Aid Highway Act of 1950” (H.R. Rep. No. 2436, 84th Cong., 
2nd Sess., 36 (1956).

13 “Any State highway department which submits plans for a Federal- 
aid highway project involving the bypassing of any city or town shall 
certify to the Commissioner of Public Roads that it has had public hear­
ings and considered the economic effects of such location.”

14 The debate included the following exchange:
Mr. K err: Is the effect of the language in the bill that the State 

highway department shall certify that they have given the folks 
affected an opportunity to have a hearing?

Mr. Chavez: That is all that is asked. At least let them have 
a day in court.

Mr. Kerr: Does that interfere with States’ rights?
Mr. Chavez: It gives States’ rights.
Mr. Kerr: Does it interfere with local rights?
Mr. Chavez: It gives the local citizens rights.
Mr. Kerr: Is the local right it gives them the right to be heard?
Mr. Chavez: Yes; the right to be heard.
Mr. Saltonstall: Mr. President, will the Senator from New

Mexico yield?
Mr. Chavez: I yield.
Mr. Saltonstall: Let us assume that a State highway depart­

ment has a certain fund of its own for use in its own bailiwick 
with regard to the location of a road. Would not the intrusion of



26

The hearing is supposed to give the citizen an opportunity 
to communicate with state and federal planners.15 16 As the 
Bureau of Public Roads Policy and Procedure Memorandum 
20-8 (Def. Exh. 2, para. 3-h) makes clear, the transcript of 
the public hearings are sent to the federal officials so that 
they may be satisfied that the State has considered the 
economic effects of the roads.16 Petitioners were deprived 
of an opportunity to communicate their views to either the 
state or federal officials at the time the important decisions

the Federal Government be in effect an interference with the 
State’s rights?

Mr. Chavez: N o; we insist that the local people have a right to 
he heard.

Mr. Kerr: The only thing that is required is that the officials 
certify that that have given the people a chance to be heard, is it 
not?

Mr. Chavez: W e do not even ask that they agree with them, 
but they should be heard. Now they say, “W e are going to change 
this highway,” and the folks of the community have nothing to say 
about it. (96 Cong. Rec. 13006 (1950); emphasis added.)

15 Increasingly, Congress and the Executive Branch provide for com­
munity participation in a variety of federal programs primarily affect­
ing cities. See The United States Housing Act of 1949, 63 Stat. 416, 42 
U.S.C. $ 1455(c) (Public hearing before urban renewal). Regulations 
provide further protections for minority groups. U.S. Department of 
Housing and Urban Development, Urban Renewal Manual, § 10-1. See 
also, The Demonstration Cities and Metropolitan Development Act of 
1966, 80 Stat. 1255, 42 U.S.C. $ 3301 et seq.

16 An amendment to Policy and Procedure Memorandum 20-8 issued 
June 16, 1959, contains a more complete statement of the purpose of 
public hearings:

The objective of the public hearings is to provide an assured 
method whereby the State can furnish to the public information 
concerning the State’s highway construction proposals, and to af­
ford every interested resident of the area an opportunity to be 
heard on any proposed Federal-aid project for which a public 
hearing is to be held. At the same time the hearings afford the 
State an additional opportunity to receive information from local 
sources which would be of value to the State in making its final 
decision as to which of possibly several feasible detailed locations 
should be selected. (P.P.M. 20-8(1))



27

were made by the failure to hold a hearing with proper 
notice. In addition, the hearing was held many years before 
there was any actual move to construct the highway and 
the public had no reasonable way of keeping informed of 
the decision processes between the governmental agencies 
during the ten year period, 1957-1967. Thus, in this addi­
tional respect, the State Highway Department failed to 
hold a hearing affording a meaningful way for citizens to 
communicate their views to the decision makers.

The opinion of the Sixth Circuit states an additional 
ground for denying relief on the hearing question. This is 
that:

. . . Although the notices were unsatisfactory, we are 
convinced that the District Judge would have been 
justified in concluding that no literate citizen of the 
Nashville community could have been unaware since 
1957 of the proposed route of the interstate highway, 
including the approximate location of the section now 
under attack.

The court pointed to newspaper clippings, maps, public 
speeches and publicity about the proposed routes and the 
fact that some of the appellants knew the general area of 
the proposed route. We urge with deference that this treat­
ment entirely misses the point. If there is a federal statu­
tory requirement that citizens be given an opportunity to 
express their views in a public hearing, newspaper publicity 
about the proposed routes is no substitute for a hearing. 
Of course, newspaper publicity giving notice of the hearing 
would be a different matter, but there was none. It may be 
relevant with respect to other issues involved in the case 
(see part V  infra) that the petitioners had an opportunity 
to know about the proposed routes from newspaper arti­
cles, but this cannot at all affect their right to have had a 
proper public hearing.



28

The respondents have argued that petitioners have no 
standing to object even if the highway department com­
pletely flouted the hearing requirement of §116 (c). We 
submit that the Court of Appeals properly rejected this 
claim citing Scenic Hudson Preservation Conference v. 
Federal Power Commission, 354 F.2d 608 (2nd Cir. 1965), 
where conservationists were allowed standing to contest 
orders of the Federal Power Commission although they as­
serted no economic interest. See Office of Communication of 
United Church of Christ v. F.C.C., 359 F.2d 994 (D.C. Cir. 
1966). And, of course, petitioners do have a demonstrable 
economic interest in view of the threatened destruction of 
businesses and harm to their universities. See also, Road 
Review League v. Boyd, 270 F. Supp. 650, 660-661 (S.D. 
N.Y. 1967).

IV.

There Was no Consideration of the Economic Effects 
of the Highway Route as Required by Federal Law.

Petitioners have contended in Part II, supra, that the 
Fourteenth Amendment makes unlawful the decision taken 
when the highway was routed so as to destroy or deeply 
to injure the Negro community of Nashville, as such, for 
the benefit of the remaining—that is to say, the white— 
segment. Petitioners contend here that, at a minimum, 
the Fourteenth Amendment requires that such an action 
not be taken without adequate consideration of its effects. 
“Equal protection of the laws” , a concept applicable with 
special force in the field of race (see, e.g., Mr. Justice 
Harlan dissenting in Harper v. State Board of Elections, 
383 U.S. 663, 682, n. 3), ought to require at the least that 
protection which comes from fair and enlightened delib­



29

eration. No less, it would seem, ought to be held required 
by the due process clause, occurring as it does in an amend­
ment which, again, specifically thrusts in the direction of 
racial discrimination and injury. The lower courts have 
found and the record amply shows that such deliberation 
was, if not entirely lacking, present in such minimal amount 
as to be “ inadequate.” “ Inadequate” consideration of the 
claim of a Negro community not to be wiped out is doubly 
“ inadequate” to the Fourteenth Amendment.

Closely connected is the failure of the respondents to 
follow the sense of the statutory requirement that it be 
certified that consideration has been given to the economic 
effects of highway routing. In the context of the present 
case this requirement ought to be held to compel considera­
tion of racially discriminatory economic effects.

The Tennessee Highway Department failed to comply 
with the requirement of Section 116(c), supra, that the 
Department certify that it “has considered the economic 
effects of such a location” of a road. The trial judge found 
that the consideration of the economic effects of the route 
on the North Nashville community was “ inadequate,” and 
the Court of Appeals opinion quotes this finding and ex­
pressly states agreement with it (14a). But on this issue 
also the courts denied relief.

The trial court made no detailed findings on this question 
because it saw it as relating to the wisdom of the route, 
which the court said it was powerless to review. The Court 
of Appeals’ opinion partly reflects this same view, express­
ing the necessity for judicial deference to “ executive pre­
rogative” as if it were a sovereign prerogative. Under 
§116(c) the courts below should have inquired whether the 
State Highway Department gave careful consideration to 
the economic effects of their plan as Congress commanded. 
In Scenic Hudson Preservation Conference v. Federal Pow­



30

er Commission, 354 F.2d 608 (2nd Cir. 1965), cert. den. 384 
U.S. 941, the Court reviewed Commission action approv­
ing a proposal to build a power facility notwithstanding 
conservationists’ objections. The landmark decision re­
turned the case to the Commission for a new hearing saying 
that the record on which the Commission decided the issue 
was incomplete, that the Commission ignored relevant fac­
tors and failed to make a thorough study of possible alter­
natives. The Court said, “While the courts have no 
authority to concern themselves with the policies of the 
Commission, it is their duty to see to it that the Commis­
sion’s decisions receive that careful consideration which 
the statute contemplates” (354 F.2d at 612). Analogous 
reasoning should govern the instant case. The requirement 
of section 116(c) cannot reasonably be deemed satisfied by 
“ inadequate consideration” of the economic effects of a 
road as was found in this case. The Congressional scheme 
for the roads program is subverted rather than supported 
by the failure of the courts to inquire whether the state 
highway departments are carefully considering the eco­
nomic effects of highway routes. This is an important 
policy of the Congress expressed in the very section of the 
basic law containing the declarations of Congressional in­
terest about accelerating the interstate highway system 
and speeding its completion17 and also a Congressional 
policy of encouraging and developing small businesses.18 
The decision below defers to the engineers. Congress was 
concerned with protecting the citizens from some of the 
highway engineers. Opposing a move to delete the public 
hearing requirement from the highway law, Senator Chavez 
said:

17 See Sections 116(a) and 116(b) of the Federal-Aid Highway Act 
of 1956, 70 Stat. 385.

18 Section 116(d) of the Federal-Aid Highway Act of 1956, 70 Stat. 
386, now codified as 23 U.S.C. 5 304.



31

Little towns and villages are being ruined because 
every 2 or 3 years an engineer lias an idea that the 
automobiles going to the next town should be able to 
reach it 5 minutes sooner. We should consider the 
economy of the folks living along the highway. (96 
Cong. Rec. 13006 (1950)).

Several relevant recent Congressional enactments demon­
strate the view of Congress—consonant with the Scenic 
Hudson decision—that highway planners must consider 
alternative plans so as to minimize the harm inflicted upon 
the variety of interests affected by highway construction. 
Such provisions were contained in Section 15 of the Fed­
eral-Aid Highway Act of 1966, 80 Stat. 766, 771, 23 U.S.C. 
§138 (Preservation of parklands), and in the Department 
of Transportation Act, sections 2(a) and 4 ( f ) ;  80 Stat. 
931. 934, 49 U.S.C. §§1651(a), 1653(f). The last mentioned 
provision states:

(f) . . .  After the effective date of this Act, the Secretary 
shall not approve any program or project which re­
quires the use of any land from a public park, recrea­
tion area, wildlife and waterfowl refuge, or historic 
site unless (1) there is no feasible and prudent alter­
native to the use of such land, and (2) such program 
includes all possible planning to minimize harm to 
such park, recreational area, wildlife and waterfowl 
refuge, or historic site resulting from such use.

Indeed, two significant state court decisions recognize 
the necessity of judicial scrutiny over plainly arbitrary 
actions which disregard alternative methods of minimiz­
ing harm. In State Highway Commission v. Danielsen, 146 
Mont. 539, 409 P.2d 443 (1965), a planned highway route 
was enjoined. In Texas East Trans. Cory. v. Wildlife Pre­
serves, Inc., 48 N.J. 261, 225 A.2d 130 (1966), a case in­



32

volving an underground gas transmission pipeline, the 
court held:

Existence of an alternate route for a pipeline which 
will reasonably serve the utility’s purpose, and which 
if utilized will avoid visiting on the condemnee’s land 
the significantly disproportionate damage which the 
originally intended route would cause, is a matter 
which rationally relates to the issue of arbitrariness.
. . . That a court has no authority to command the 
alternative does not mean that it cannot reject the orig­
inal proposal. 235 A.2d at 137.19

Implicit in the §116(c) requirement that the economic 
effects of highway location be considered is the require­
ment that state highway departments act non-arbitrarily 
and consider alternatives to routes which will cause dis­
proportionate harm to portions of communities affected by 
highway planning.

The Court of Appeals opinion seeks to avoid these argu­
ments by pointing out that the Commissioner of Highways 
announced that the purpose of the public hearing held 
May 15, 1957, was to hear statements concerning the eco­
nomic effects of the route, and that the attorney for the 
department signed a certificate that the department had 
considered the economic effects. The court said that the 
District Court had no practical way of determining to what 
extent the highway offiials considered the economic effects, 
and that it was proper to rely on a presumption of regular­
ity of the public records—the certificate—and of compliance 
by public officers with their statutory duties.

This view might be reasonable if the record was merely 
silent on whether the economic effects were considered.

19 See also. City of Pittsburgh v. F.P.C., 237 F.2d 791 (D.C. Cir. 
1956).



33

But this record establishes the negative proposition. It 
shows, by testimony out of the mouths of the respondents, 
that the economic effects were not considered. The Director 
of Research and Planning for the Highway Department 
testified that no studies appraising the economic effects of 
the route through the North Nashville community existed 
in the files of the department (Tr. 466-467, 471). To be 
sure, the former commissioner did, as the opinion below 
says, point to exhaustive studies of the highway proposals 
by a reputable firm. But these Clarke and Rapuano studies 
(Plf. Exhs. 35, 36) recommended a route which did not 
pass through the Negro neighborhood and would have had 
none of the disastrous effects on the Negro community that 
the route finally approved will have. Thus, the commis­
sioner said that he relied on his expert engineers to locate 
the route; the location engineer Cantrell said he relied on 
the Department of Research and Planning; the head of that 
department said there were no studies in the files; and the 
outside consulting firm’s report reflecting a conservation of 
community values, recommended an alternate route not 
passing through the Negro ghetto. Additionally, the 1957 
public hearing transcript (Plf. Exh. 1) contains not the 
slightest mention of the impact of the route on the North 
Nashville business districts, churches, or universities. Thus, 
the presumption that the certificate was true and of com­
pliance by officials with their statutory duties was plainly 
rebutted by the officials and their records.20

20 Professor Wigmore says that the presumption of due performance 
of official duty “is more often mentioned than enforced; and its scope as 
a real presumption is indefinite and hardly capable of reduction to rules” 
(9 Wigmore on Evidence, 3d Ed., 4 2534, p. 488). Wigmore also rejects 
the notion that a certificate could be deemed conclusive as against testi­
mony on oath. “In many other instances the suggestion has been made 
that an official certificate should be taken as a conclusive testimony to 
the facts certified but this suggestion has been almost invariably repudiated 
by the courts” (4 Wigmore on Evidence, 3d Ed., § 1352, p. 708).



34

"We pray that the Court grant review to redress a severe 
wrong to petitioners, to implement a plain Congressional 
policy, and to guide the lower courts in finding their proper 
role with respect to one important aspect of the crisis21 
situation facing urban Americans.

y .

The Balance of Equities Favors Petitioners.

In this concluding section we discuss briefly several 
“ equity issues” which might be regarded as relevant to 
a decision of the case. None of these “equity issues” were 
very clearly relied upon by the trial court as a ground of 
decision. However, some have been raised by the respon­
dents and others were mentioned by the Court of Appeals.

First, the respondents have raised the defense of laches. 
They rely upon the fact that during the past two years 
the State has acquired title to all but a few of the parcels 
of land along the projected route of the highway. The 
District Court opinion did not really decide whether, 
under all the circumstances, petitioners had exercised 
reasonable diligence in bringing their case to court. The 
court stated merely that:

Their failure to initiate a substantial protest against 
the route of this highway until very recently can not 
be explained except by the assumption that the impact 
of the location was not realized until that time.

This somewhat unclear finding is entirely consistent with 
petitioners’ testimony that they were unable to learn until 
recently the precise location of the road and that their

21 Congress has found and declared “that improving the quality of 
urban life is the most critical domestic problem facing the United States.” 
Section 101 of the Demonstration Cities and Metropolitan Development 
Act of 1966, 80 Stat. 1255, 42 U.S.C. §3301 et seq.



35

many inquiries produced only vague and indefinite ex­
planations of the governmental plans along with continu­
ing disarming reassurances that plans were not yet final. 
The highway location engineer testified that the route was 
a “corridor plan” and then a “preliminary plan” until 
very recently since it was not the practice to finalize high­
way plans until just before construction contracts are 
awarded. There is no evidence that petitioners had any 
notice of what was going on during the multi-stage proc­
esses by which the highway department moved to begin 
the highway over the period of a decade following the 
public hearing.

Petitioners did bring suit before the highway depart­
ment obligated itself by contract to construct the road. 
Thus, no third party’s contract rights are at stake. There 
is no evidence that petitioners were able to determine the 
harmful consequences of the proposed route until the 
final plans were approved in the fall of 1967, shortly be­
fore they filed suit. The general route of the road was 
published in a newspaper in 1957, but most of the harmful 
consequences were the result of subsequent decisions made 
without notice to the public. For example, the decisions 
that will insure destruction of the business section of Jef­
ferson Street are the decisions to build the 1-40 route just 
north of Jefferson Street (taking the back of the business 
properties) and also to widen Jefferson Street as an ar­
terial road (taking the front of these businesses). This 
type of detail, which vitally affects the situation, was not 
known by petitioners for any appreciable period of time 
before suit was filed. It is not fair to say that petitioners 
“ slept on their rights” so as to be barred from equitable 
relief.

Despite the land acquisitions by the State, some forms 
of relief can still effectively prevent some harm which is



36

yet to be visited upon the petitioners’ community. The 
business section on Jefferson Street has not yet been 
demolished and some businesses are still functioning. The 
court below points out that perhaps some of the worst 
damage may still be averted by “ engineering.” If consti­
tutional rights have been invaded, an equity court should 
prevent any injury which can still be prevented.

There has been no attempt by the District Court to 
balance the equities by adjudging the losses that might be 
sustained if the project is now required to be changed. 
Petitioners’ expert witness, a city planner, testified with­
out contradiction that “a great many things . . .  can be 
done” with the land other than using it as a road. He 
pointed out the land could be redeveloped under an urban 
renewal plan and that there was adequate precedent for 
the federal government to underwrite the expenses al­
ready incurred so that the funds need not be considered 
a loss. He also pointed out that the land might be resold 
for purposes beneficial to the community in accord with 
a plan to be prepared by the Metropolitan Planning Com­
mission, or used in a comprehensive neighborhood renewal 
plan to provide a more adequate shopping center and more 
adequate parking facilities and services (Tr. 489-490).

It is necessary to strike a balance between the potential 
financial losses to the State and to the petitioners. The 
small businessmen in North Nashville and the universities 
there have large economic interests at stake and face ir­
retrievable losses if the road goes through.

Unless injunctive relief is granted pendente lite, the 
damage to petitioners will become irreparable. The Court 
of Appeals granted a stay injunction pending appeal be­
cause the threatened injury to petitioners is so serious and 
the harm which a brief delay, necessary to finally decide



37

the case, might cause to the State is so tenuous. After all, 
the highway has already been delayed by respondents’ 
own choice for 10 years since it was first planned. A few 
months further delay to allow the courts to function is 
plainly justifiable.

We submit that this case is appropriate for review on 
certiorari for the Court to decide the important issues of 
law presented.

CONCLUSION

Wherefore, for the foregoing reasons, it is respectfully 
submitted that the petition for writ of certiorari should 
be granted.

Respectfully submitted,
(

Jack Greenberg 
James M. Nabrit, III 
Charles H. Jones, Jr.
M ichael Davidson

10 Columbus Circle 
New York, New York 10019

A von N. W illiams, J r .
Z. A lexander L ooby 
L ooby & W illiams

327 Charlotte Avenue 
Nashville, Tennessee 37201

Attorneys for Petitioners

Charles L. B lack, Jr. 
Of Counsel



A P P E N D I X



Wednesday, November 1st, 1967

District Court of the United States at Nashville, Tenn.
The Court: Now, the first question before the court is 

presented by the motion to dismiss the action as against 
Mayor Beverly Briley of Metropolitan Nashville and David­
son County.

The only issue here is whether the mayor has the power 
from a legal standpoint to determine the location of inter­
state highways in Davidson County. The Court finds that 
he does not have such authority and accordingly the court 
holds that he is not a proper defendant and the action is 
dismissed as to him.

Now, the injunctive power of this court as it applies to 
public officials such as the governor of a state or the com­
missioner of highways is limited to the prohibition of acts 
which are unlawful, that is, not authorized by statute nor 
acts which are in deprivation of constitutional rights.

The first issue involves the hearing prescribed by the 
Section 116 (c) of Public Law 84-627 usually known as the 
Federal Aid Highway Act of 1956.

The court finds as a matter of fact that a hearing was 
held and holds that the questions of insufficiency of notice, 
inadequacy of the hearing and of the transcript thereof are 
questions addressing themselves to the Bureau of Public 
Roads of the Department of Transportation.

See Hoffman v. Stevens, 177 Fed. Supp. 893.
Also compare Parkarski v. Smith, 38 Del. Chancery 402.
And Lenecki v. Department of Highways, 76 Nevada, 

Page 26.
The proof adduced does not establish that the proposed 

letting of a construction contract is an unlawful act as a 
result of the shown irregularities relative to the hearing.

Oral Findings of Fact and Conclusions of Law of
District Court



2a

The final issue raised by this action is whether the selec­
tion of the route in question was made in such an arbitrary 
manner or with the purpose of discriminating against a 
racial or socio-economic segment of the population in the 
affected area so as to affect the legality of the selection.

If this were shown by competent proof the power of this 
court to review the legality of the decision in light of plain­
tiffs’ constitutionally protected rights would be properly 
invoked. I do not find that that is the case.

Most of the evidence presented by the plaintiffs goes to 
the wisdom and not to the legality of the highway depart­
ment’s decision. Plaintiffs have shown that the proposed 
route will have an adverse effect on the business life and 
educational institutions of the North Nashville community.

The proof shows that the consideration given to the total 
impact of the link on the North Nashville community was 
inadequate. However, inadequate consideration does not 
constitute proof of a deliberate purpose to discriminate 
against the residents of North Nashville on the basis of 
race or socio-economic conditions.

Consequently, plaintiffs have not shown that the selection 
of this route for 1-40 amounts to a denial of due process 
or equal protection of the laws.

The approximate location of the highway section in ques­
tion was determined early in 1957. Plaintiffs’ Exhibit No. 
6, a copy of Nashville Tennessean article of May 5, 1957 
contains a reproduction of the proposed section together 
with remainder of the interstate section to be located in 
Davidson County.

Insofar as this section is concerned although there may 
have been minor changes thereafter, the socio-economic ef­
fect now complained of would have resulted if no changes

Oral F in d in g s o f  F a ct and C onclusions o f  L a w  o f

D istrict C ourt



3a

had been made. The business section of Jefferson Street 
would obviously have been gravely affected and Meharry 
Medical College and Fisk University would have been 
separated from Tennessee State University.

Acquisition of rights of way has been under way for more 
than two years and substantially all of the rights of way 
have been acquired.

The plaintiffs in this action are as stated in the trial 
memorandum submitted by them herein “businessmen, 
teachers, ministers, councilmen, civic and professional 
leaders and other citizens residing and/or working and/or 
owning property or having other interests in the North 
Nashville Community.”

Their failure to initiate a substantial protest against the 
route of this highway until very recently can not be ex­
plained except by the assumption that the impact of the 
location was not realized until that time.

In spite of the grave doubts the court has as to the wis­
dom of the selection made, based on the evidence which I 
have heard I can not find that an adequate basis has been 
laid for the use of the injunctive power of this court.

Accordingly the application for a preliminary injunction 
is denied.

Now, what I have just stated will constitute the court’s 
finding of facts and conclusions of law on this application 
for a preliminary injunction.

• * • • *

Oral F in d in g s o f F a ct and C onclusions o f  L a w  o f

D istrict C ourt



4a

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Opinion of Court of Appeals
No. 18288

Nashville 1-40 Steering Committee,
ETC., ET A L .,

Plaintiffs-Appellants, 
v.

Buford Ellington, Governor, et al ., 
Defendants-Appellees.

Appeal from United 
States District Court 
for the Middle Dis-V 
trict of Tennessee, 
Nashville Division.

Decided December 18, 1967.t

Before: Phillips, Peck and Combs, Circuit Judges.
Per C uriam. This is an appeal pursuant to 28 U.S.C. § 1292 

(a)(1) from the order of the District Court denying a preliminary 
injunction to restrain officials of the State of Tennessee from 
constructing a section of Interstate Highway 1-40 along its 
planned route in North Nashville, which is a predominantly 
Negro area of Nashville, Tennessee. The section of the proposed 
highway under attack is approximately 3.6 miles long and is 
a link in a highway extending from Memphis in West Tennes­
see through and beyond Ashville, North Carolina.

Jurisdiction of the District Court was invoked pursuant to 
28 U.S.C. §§ 1331(a) and 1343(3) and 42 U.S.C. §§ 1981,1982, 
1983 and 2000d. Redress is sought for an alleged deprivation 
of rights under the Fifth Amendment and the due process and 
equal protection clauses of the Fourteenth Amendment.

Appellants are members of an unincorporated association of 
some thirty Negro and white businessmen, teachers, ministers, 
civic and professional leaders, and residents of North Nashville.



5a

Opinion of Court of Appeals

Nashville 1-40 Steering Comm. v. Ellington No. 18288

They sue on behalf of themselves as individuals, in the name 
of their association, and on behalf of the community they rep­
resent. The named appellants include faculty members of four 
Nashville universities and colleges, including Fisk University, 
Meharry Medical College, Scarritt College and Vanderbilt 
University.

The defendants in the District Court were Buford Ellington, 
Governor of Tennessee, Charles W. Speight, Commissioner of 
Highways of the State of Tennessee, and Beverly Briley, Mayor 
of the Metropolitan Government of Nashville and Davidson 
County, Tennessee. The District Court dismissed the action 
as to Mayor Briley.

The complaint charges that construction of the highway 
segment as planned will cause substantial damage to the North 
Nashville community, erecting a physical barrier between this 
predominantly Negro area and other parts of Nashville.

Two basic issues are raised by the complaint:
(1) That State officials failed to hold a public hearing with 

proper notice and failed to consider the economic effects of 
the proposed route as required by Section 116(c) of the 
Federal-Aid Highway Act of 1956, and the rules and regula­
tions of the United States Department of Transportation (then 
the Bureau of Public Roads); and (2) that the selection of 
the route in question was made arbitrarily or with the purpose 
of discriminating against the Negro or low socio-economic 
segments of Nashville’s population so as to damage and in part 
destroy the Negro business community of Nashville, injure 
predominantly Negro educational institutions, and impose 
other irreparable harm upon the North Nashville community.

The complaint avers that appellants first requested a delay 
of ninety days in the invitation for bids and that this delay was 
denied both by the Tennessee Commissioner of Highways and 
the United States Department of Transportation. This suit was 
filed October 26, 1967, after advertisement for bids had been 
made. Bids were scheduled to be received October 31, 1967.

District Judge Frank Gray, Jr. refused to issue a temporary



6a

restraining order but promptly began a hearing on the appli­
cation for preliminary injunction. This hearing was started 
Monday, October 30, 1967, and continued through Wednesday, 
November 1. In the meantime bids were received as scheduled, 
but State officials agreed not to let the contract, pending the 
order of the District Court on the application for preliminary 
injunction.

After the hearing, the record of which encompasses 538 
typewritten pages of evidence and numerous and voluminous 
exhibits, the District Judge filed a memorandum opinion on 
November 2, 1967, resolving both issues of fact against plain­
tiffs, holding:

(1) That a public hearing, in conformity with § 116(c) of 
the Federal-Aid Highway Act of 1956, was held by State High­
way officials; and

(2) That “ [m]ost of the evidence presented by plaintiffs 
goes to the wisdom and not to the legality of the highway 
department’s decision;” that acquisition of rights of way has 
been under way for more than two years and substantially all 
the rights of way have been acquired; that plaintiffs have not 
shown that the selection of the proposed route amounts to a 
denial of due process of law or equal protection of the law; 
and that no adequate basis has been laid for the use of the 
injunctive power of the Court.

In addition to denying the application for preliminary injunc­
tion, the District Judge overruled a motion for injunction 
pending appeal.

This Court entered a stay order requiring that the status quo 
be maintained and directing that the contract not be let 
pending our hearing. At the time this appeal was filed the 
docket for the Court’s December session had been scheduled. 
Because of the great public interest involved, this case was 
advanced on the docket and specially set for argument during 
the December session.

Appellees urge that appellants have no standing to maintain 
this action. We reject this contention. Scenic Hudson Preset-

O pinion o f  C ou rt o f  A p p ea ls

No. 18288 Nashville 1-40 Steering C om m . v. EUington



7a

Opinion of Court of Appeals

Nashville 1-40 Steering Comm. v. Ellington No. 18288

nation Conference v. Federal Power Commission, 354 F.2d 608 
(2d Cir.), cert, denied, 384 U.S. 941. Appellees further con­
tend that this case cannot be maintained as a class action. 
The District Court has not yet passed upon this issue, and it 
is not before this Court for consideration.

1) Scope of review

First we consider the scope of review in an appeal under 
28 U.S.C. § 1292(a)(1) from the action of a District Court in 
denying a preliminary injunction. This statute confers the right 
of appeal to the Court of Appeals from an interlocutory order 
of a District Court refusing to grant an injunction.

In American Federation of Musicians v. Stein, 213 F.2d 679, 
683 ( 6th Cir.), cert, denied, 348 U.S. 873, this Court approved 
the following statement:

“The granting or denial of a temporary injunction pending 
final hearing is within the sound judicial discretion of the 
trial court, and upon appeal an order granting such an 
injunction will not be disturbed unless contrary to some 
rule of equity or the result of an improvident exercise of 
judicial discretion.”

The rule is stated as follows in 7 J. Moore, Federal Practice, 
1 65.04[2], at 1630-31 (2d ed. 1966):

“A motion for an injunction pendente lite is addressed 
to the judicial discretion of the district court. While the 
grant or denial may raise only an issue of law and be re- 
viewable as such, ordinarily discretion will be involved 
and when it is the test on appeal is not whether the 
appellate court in its discretion would have granted or 
denied the injunction, but whether the district court has 
abused its discretion. Accordingly, unless the district 
court has proceeded improperly, where discretionary 
action of the district court is involved, its action will not 
be lightly disturbed on appeal; . . . ”



8a

“Reversal on such an appeal can be only for abuse of dis­
cretion.” 3 W. Barron & A. Holtzoff, § 1440 at 509, 510 
(Wright’s ed. 1958).

This rule has been followed and applied repeatedly by this 
and other Circuits. A few selected cases applying this rule 
are: Hornback v. Brotherhood of Railroad Signalmen, 346 
F.2d 161 (6th Cir.); Wooten v. Ohler, 303 F.2d 759 ( 5th Cir.); 
Progress Development Corp. v. Mitchell, 286 F.2d 222, 229 
(7th Cir.); and Holzer v. United States, 244 F.2d 562, 564 
(8th Cir.). A recent decision in which the District Court 
refused to grant a preliminary injunction to restrain con­
struction of a portion of interstate highway is Road Review 
League, Town of Bedford v. Boyd, 270 F. Supp. 650 (S.D. 
N.Y.).

Appellants rely upon United States v. Beaty, 288 F.2d 653 
(6th Cir.), where this Court reversed the action of the District 
Court in refusing to grant a temporary injunction, holding that 
the District Court abused its discretion by refusing to apply 
apphcable law under undisputed facts. We hold that this 
is not the situation in the present case.

2) Public Hearing
We next consider the question of whether the District Judge 

abused his discretion in refusing to grant a preliminary in­
junction on the ground that State officials failed to hold a 
public hearing with proper notice as required by the Federal- 
Aid Highway Act. The provision of the Federal-Aid High­
way Act of 1956, § 116(c), 70 Stat. 385, relating to public 
hearings is set forth in the margin.1

1 “ (c) Public Hearings. —  Any State highway department which 
submits plans for a Federal-aid highway project involving the by­
passing of or going through, any city, town, or village, either 
incorporated or unincorporated, shall certify to the Commissioner of 
Public Roads that it has had public hearings, or has afforded the 
opportunity for such hearings, and has considered the economic 
effects of such a location: Provided, That, if such hearings have been 
held, a copy of the transcript of said hearings shall be submitted to 
the Commissioner of Public Roads, together with the certification.” 
(This provision of the 1956 statute does not differ materially from  
the later statute which is codified at 23 U.S.C. § 128).

O pinion o f  C ou rt o f  A p p ea ls

No. 18288 Nashville 1-40 Steering C om m . v. Ellington



9a

The record shows that a public hearing was held in the 
County Courthouse at Nashville on May 15, 1957, presided 
over by State Highway Commissioner William M. Leech, now 
a State Chancery Court Judge, who testified at some length in 
the District Court. Commissioner Leech opened the hearing 
with this comment:

“Ladies and Gentlemen, this Hearing this morning has 
been called for the purpose of hearing statements com­
plying with Section 116(c) of the Public Laws 627 of 
the 84th Congress, generally known as the Federal High­
way Act of 1956, as it relates to the economic effect of 
the Interstate System in the city of Nashville and David­
son County, both inside and outside the city limits, 
comprising of an inner loop and an outer loop with five 
legs going out to be the fourth part of the entire Interstate 
System. This is the plan that has been developed by 
the consultant engineering firm of Clarke and Rapuano 
in connection with the Tennessee Highway Department 
and the Bureau of Public Roads. I think, here in Nash­
ville, considerable publicity has been given to the planning 
and providing of this expressway system.”

O pinion o f  C ourt o f A p p ea ls

Nashville 1-40 Steering Com m . v. Ellington No. 18288

The evidence discloses that this hearing conducted in 
Nashville was similar to those conducted in all the other 
ninety-four counties of Tennessee.

The proof indicates that the hearing was well attended even 
though formal notice was given by supplying copies to the 
County Judge and Mayor and by posting copies in the main 
post office and five post office stations. These included the 
North Station Post Office at Sixth Avenue and Monroe Street 
which serves North Nashville, but is described as being located 
in a “white” neighborhood near the predominantly Negro 
community. Neither the statute nor the regulations of the 
Bureau of Public Roads prescribed how notice of hearings 
should be given.



10a

We consider this to be an unsatisfactory way to give notice 
of a public hearing, especially when for some unexplained 
reason the notice announced the hearing for May 14, and it 
actually was held the following day, on May 15.

Based upon the record before us, however, although the 
notices were unsatisfactory, we are convinced that the Dis­
trict Judge would have been justified in concluding that no 
literate citizen of the Nashville community could have been 
unaware since 1957 of the proposed route of the interstate 
liighway, including the approximate location of the section 
now under attack. The record contains copies of many news­
paper clippings from 1957 forward, setting forth maps and 
descriptions of the proposed route. Judge Leech testified 
that he made many public speeches concerning the proposed 
system, including an address before a Negro civic group in 
North Nashville, and that there was much newspaper pub­
licity concerning the proposed routes. Some of the appellants 
testified that they had known the general location of the 
proposed route through North Nashville long before the com­
plaint in this action was filed.

The healing was recorded and subsequently transcribed in 
manuscript form. A copy was filed with the then Commis­
sioner of Public Roads. A copy of the manuscript was received 
as an exhibit in this proceeding. It leaves much to be desired 
as a manuscript of a public hearing, since the recording device 
failed to pick up many questions from the audience. The 
manuscript contains only the statements and answers of the 
Commissioner and other representatives of the highway depart­
ment and what was said from the platform where the micro­
phones were located.

Nevertheless, we cannot say that the District Court abused 
its discretion in denying a preliminary injunction on the 
ground that no public hearing was held in compliance with 
at least the minimum requirements of Section 116(c) of the 
Federal-Aid Highway Act of 1956 (footnote 1) and that appel­
lants were not deprived of any constitutional rights by this

O pinion o f  C ouvt o f A p p ea ls

No. 18288 Nashville 1-40 Steering C om m . v. Ellington



11a

procedure. Cf. Futch v. Greer, 353 S.W.2d 896 (Tex. Ct. 
Civ. App.), cert, denied, 372 U.S. 913; Linnecke v. Depart­
ment of Highways, 76 Nev. 26, 348 P.2d 235; Piekarski v. 
Smith, 37 Del. Ch. 594, 147 A.2d 176; Hoffman v. Stevens, 
177 F. Supp. 898 (M.D. Pa.).

3) Consideration of economic effects
Appellants assert that State highway officials failed to comply 

with the statute in that they did not consider the economic 
effects of the proposed route as required by the statute (foot­
note 1).

As set forth above, the Commissioner of Highways opened 
the public hearing on May 15, 1957, by stating that one of 
the purposes of the meeting was to hear statements concerning 
the economic effects of the proposed route of the interstate 
system both inside and outside the city of Nashville.

Thereafter, the attorney for the State highway department 
made the following certification:

“I certify that I am an official of the Department of 
Highways and Public Works of the State of Tennessee 
and that the above transcript of the public hearing here­
tofore conducted regarding the location of the above 
mentioned project has been read by me. I further certify 
that said Department has considered the economic effects 
of the location of said project and that it is of the opinion 
that said project is properly located and should be con­
structed as located.”

During the three day hearing convened with commendable 
haste in view of the circumstances the District Court had no 
practical way of determining to what extent highway officials 
gave consideration to the economic effects of the proposed 
route. The record discloses that the attorney who made the 
foregoing certification is now dead. Former Commissioner 
Leech testified that his department employed a reputable firm 
of engineers and that exhaustive studies were made by this 
firm and by personnel of the highway department.

O pinion o f  C ou rt o f A p p ea ls

Nashville 1-40 Steering Com m . v. EUington No. 18288



12a

Opinion of Court of Appeals

No. 18288 Nashville 1-40 Steering Comm. v. Ellington

Under these circumstances we hold that justification existed 
for reliance upon the presumption of regularity of public rec­
ords and compliance by public officials with duties imposed 
upon them by statute. Helpern v. McMorran, 270 N.Y.S.2d 
656, 50 Misc.2d 134.

4) Alleged racial discrimination

Sinoe the date of the public hearing in 1957 approximately 
1,100 parcels of property along the proposed route have been 
acquired both from Negro and white citizens. The costs of 
acquisition, together with the engineering costs to date, total 
approximately $10,000,000. Only 25 parcels remained to be 
acquired as of the date of the hearing before Judge Gray. 
No discrimination is charged or shown in the condemnation 
or purchase of property owned by Negro and white citizens 
or in payment of just compensation therefor.

We find that the record fails to show any intent or purpose 
of racial discrimination in the selection of the proposed route, 
that the findings of fact of the District Judge are not clearly 
erroneous but to the contrary are supported by substantial 
evidence, and that the District Judge did not abuse his discre­
tion in refusing to deny a preliminary injunction on grounds 
of racial discrimination.

5) Claimed deprivation of due process and 
equal protection as matter of law

Appellants contend that, regardless of intent, the result of 
the construction of the proposed highway would be so in­
jurious to the residents and institutions of the area as to 
deprive appellants and those whom they represent of due 
process and equal protection as a matter of law. We do not 
agree with this contention. In the absence of proof of racial 
discrimination, we do not consider this matter to be a justici­
able issue. The routing of highways is the prerogative of the 
executive department of government, not the judiciary.



13a

As said by the Supreme Court in Berman v. Parker, 348 U.S. 
26, 35: “It is not for the courts to oversee the choice of the 
boundary line nor to sit in review on the size of a particular 
project area.”

The District Judge was on sound legal ground in refusing to 
substitute his judgment for that of highway officials in the 
selection of a route for a highway. Road Review League, Town 
of Bedford v. Boyd, supra, 270 F. Supp. 650, 663 (S.D. N.Y.)

It would be virtually impossible to select a route for an 
interstate highway through a congested metropolitan area 
without working hardships upon many citizens. Appellants 
suggest possible alternative routes which they contend would 
avoid the unfortunate economic consequences which the pro­
posed route will impose upon the North Nashville area. 
Alternative routes undoubtedly would impose hardships upon 
others. The minimizing of hardships and adverse economic 
effects is a problem addressing itself to engineers, not judges. 
The providing of just compensation to property owners falls 
within the purview of the laws of eminent domain.

6) Discretion of District Judge
The District Judge, in weighing the equities of this case, 

could well have reached the same conclusion as did another 
Court in a somewhat analagous situation in Road Review 
League, Town of Bedford v. Boyd, supra:

“To enjoin defendants at this stage from carrying out 
the commitment of the federal government to provide 90 
per cent of the necessary funds for this project would 
create a chaotic situation. Plaintiffs argue that the 
damage to the State could be mitigated, that the rights 
of way which the State has acquired could be sold or 
returned to their former owners, that the course of the 
road could be changed without undue hardship. These 
arguments do not seem to me to be realistic. Some loss, 
as for example, engineering expenses, would obviously be 
irretrievable. In all likelihood, the ultimate loss would

O pinion o f  C ou rt o f  A p p ea ls

Nashville 1-40 Steering C om m . v. EUington No. 18288



14a

amount to much more. Substantial delay, perhaps amount­
ing to over two years, would be encountered before a 
new route could be surveyed and engineered.” 270 F. 
Supp. at 664.

Under the standards of judicial review in this type of action 
we conclude that, despite the showing of heavy damage to 
the North Nashville area, we have no choice except to affirm 
the judgment of the District Court in refusing to grant a pre­
liminary injunction.

7) Possible administrative relief yet available
In his memorandum denying the application for temporary 

injunction, the District Judge found that “ [pjlaintiffs have 
shown that the proposed route will have an adverse effect on 
the business fife and educational institutions of the North 
Nashville community. The proof shows that the consideration 
given to the total impact of the link of 1-40 on the North 
Nashville community was inadequate.” He pointed out that 
the business section of Jefferson Street will be “gravely 
affected.” This Court agrees with these conclusions. For 
example, it is shown that the blocking of other streets will 
result in a heavy increase in traffic through the campus of 
Fisk University and on the street between this university and 
Meharry Medical College. A public park used predomi­
nantly by Negroes will be destroyed. Many business estab­
lishments owned by Negroes will have to be relocated or closed.

It is to be regretted that appellant’s request for a ninety day 
delay in receiving bids, made shortly before this suit was filed, 
was denied by both the State Commissioner of Highways 
and the United States Department of Transportation. If this 
delay had been granted, perhaps enough problems could 
have been resolved by engineering and negotiation so that this 
litigation would never have been initiated. It also is to be 
regretted that appellants waited so late to begin their efforts 
to correct the grave consequences which will result from the 
construction of this highway.

O pinion o f  C ou rt o f  A p p ea ls

No. 18288 Nashville 1-40 Steering C om m . v. Ellington



15a

From statements made during oral argument, however, it 
appears that there yet may be hope that some of the severe 
damage to the Negro community and institutions can be 
reduced if not relieved in their entirety. It was stated that 
the United States Department of Transportation recently 
conducted a meeting in Nashville with respect to this project 
and announced that the letting of the contract will not be 
approved pending further study.

The brief of appellees contains a statement to the effect that 
under State law contracts are required to be let within ten 
days after receipt of bids. More than ten days already have 
elapsed since the bids for this highway project were received.2 
The brief also says that “the record shows that several access 
ways are already provided and that others can be had if neces­
sary.” This, too, is a problem to be solved by engineers and 
not by judges.

If, as stated in oral argument, the United States Depart­
ment of Transportation has announced that it will not approve 
the letting of the contract for this project pending further 
study, it would appear that final approval of this segment 
of highway may not yet have been given by that Department. 
We cannot presume that the Department of Transportation 
will fail to give consideration to possible revisions in the plans 
and specifications so as to alleviate as much as feasible the 
grave consequences which this record shows will be imposed 
under the present plans upon the North Nashville community.

Another question presented on appeal is whether the District 
Judge erred in dismissing the case as to defendant Beverly 
Briley, Metropolitan Mayor of Nashville and Davidson County. 
The District Court concluded that the Mayor has no juris­
diction over the locating of an interstate highway and could 
not participate in any decision with respect thereto.

We reverse the order of the District Court dismissing the 
Metropolitan Mayor as a party defendant to this litigation.

Opinion o f  C ou rt o f  A p p ea ls

Nashville 1-40 Steering C om m . v. Ellington No. 18288

2 During oral argument it was stated that the low bidder on this 
project has waived this requirement for 60 days.



16a

Although the District Court is correct in its conclusion that 
the Mayor has no legal power to decide the location of an 
interstate highway, it cannot be doubted that he possesses 
considerable powers of persuasion and cooperation. We 
cannot predict the ultimate disposition of this case in the 
District Court on its merits. It is conceivable that the final 
solution could require the closing, opening, or rerouting of 
city streets, rezoning or other municipal action. A correction 
of these problems could require cooperation among Federal, 
State and local governments. We consider it proper to retain 
a representative of the Metropolitan Government as a party 
defendant.

The stay order heretofore entered by this Court will con­
tinue in effect for twenty days from the date of the filing of 
this opinion in order to maintain the status quo during the 
period prescribed by Rule 24 of the rules of this Court.

Reversed as to the order dismissing the Mayor of the Metro­
politan Government of Nashville and Davidson County as a 
party defendant. Otherwise affirmed and remanded to the 
District Court for further proceedings.

O pinion o f  C ou rt o f  A p p ea ls

No. 18288 Nashville 1-40 Steering C om m . v. Ellington



17a

Order

No. 18,288

UNITED STATES COURT OF APPEALS 

F ob the S ixth Circuit

Nashville 1-40 Steering Committee, etc., et al.,
Plaintiffs-Appellants,

v.

B uford E llington, Governor, et al.,
Defendants-Appellees.

Before P hillips, P eck and Combs, Circuit Judges.
It is Ordered that the opinion in this case, which was 

announced December 18, 1967, be and hereby is amended 
by striking the following language from page six of the 
printed slip opinion:

“The evidence discloses that this hearing conducted 
in Nashville was similar to those conducted in all the 
other ninety-four counties of Tennessee.”

and by inserting in lieu thereof the following:
“ The evidence discloses that this hearing conducted 

in Nashville was similar to those conducted in all other 
counties in Tennessee crossed by any part of the inter­
state highway system.”

ENTERED BY ORDER OF THE COURT:

/ s /  Carl W. Reuss 
CLERK

F I L E D
D ec. 26, 1967 

Carl W. R euss, Clerk



18a

Judgment

UNITED STATES COURT OF APPEALS 

F o e  the S ixth Circuit 

No. 18,288

N ashville 1-40 S teering Committee, an Unincorporated 
Corporation, and Its Individual Members, etc.,

Plaintiffs-Appellants, 
vs.

B uford E llington, Governor, State of Tennessee; Charles 
W. Speight, Commissioner of Highways, State of Ten­
nessee ; and B everly B riley, Mayor of the Metropolitan 
Government of Nashville and Davidson County, Ten­
nessee,

Defendants-Appellees.

B efore: P hillips, P eck and Combs, Circuit Judges.

A ppeal from the United States District Court for the 
Middle District of Tennessee

T his Cause came on to be heard on the record from the 
United States District Court for the Middle District of 
Tennessee and was argued by counsel.

O n  Consideration W hereof, It is now here ordered and 
adjudged by this Court that the judgment of the said Dis­
trict Court in this cause be and the same is hereby reversed 
as to the order dismissing the Mayor of the Metropolitan 
Government of Nashville and Davidson County as a party



19a

Judgment

defendant. Otherwise affirmed and remanded to the District 
Court for further proceedings.

The stay order heretofore entered by this Court will 
continue in effect for twenty days from the date of the 
filing of this opinion in order to maintain the status quo 
during the period prescribed by Rule 24 of the rules of this 
Court.

No costs on appeal awarded either party.

Entered by order of the Court.

Carl W . Reuss

Clerk
A True Copy.

Attest:

F I L E D
Dec. 18, 1967 

Carl W. R euss, Clerk

Issued as Mandate: 

Costs: N one



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