Plaintiffs' First Request for Admissions to State Defendants
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September 1, 1999
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Brief Collection, LDF Court Filings. Baldwin v. Morgan Transcript of Record, 1960. fda40a66-be9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4df36704-5f1a-4d3f-9262-763283d02ea3/baldwin-v-morgan-transcript-of-record. Accessed August 19, 2025.
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TRANSCRIPT OF RECORD
UNITED STATES
C O U R T OF A P P E A L S
FIFTH CIRCUIT
No. 18,280
CARL L. BALDWIN and ALEXINIA BALDWIN,
Appellants,
versus
J. W. MORGAN, ET AL„
Appellees.
Appeal from the United States District Court for the
Northern District of Alabama.
(ORIGINAL RECORD RECEIVED MAR. 15/60.)
U- f T f f OF APPEALS
* ̂ l e d
MAY 20 m o
EDWARD l-V\ W’ADSH'ORTL
CLERK
INDEX.
P a g e
Motion and O rder of the United States Court of Ap
peals, F ifth Circuit, to Allow use of Transcript
on Form er Appeal—Case No. 16,717 .............. 1
Answer of Defendant’s C. C. (Jack) Owen, Jim m y
Hitchcock and Sibyl Pool ................................... 2
Motion for Substitution and A ffidavit ....................... 7
Answer of Defendants J. W. Morgan and J. T. Wag
goner and R. E. Lindberg ................................... 9
Answer of Defendant Birmingham Term inal Com
pany ............................................................................ 14
Order G ranting P la in tiffs Motion to Substitute
Eugene Connor for R. E. Lindbergh as a P arty
Defendant ................................................................. 21
Answer of Substituted Defendant, Eugene Connor. . 22
Notice of Taking Deposition filed August 5, 1959 . . 23
Notice of Taking Deposition filed October 7, 1959 .. 25
Motion for Substitution and Affidavit ....................... 26
Motion Requesting tha t the D istrict Court Refuse to
Hear the Pending Case Unless a Three Judge
Court is Impaneled ............................ 29
TRANSCRIPT OF PROCEEDINGS:
Colloquy between Court: and C o u n se l.................. 32
Evidence for Plaintiff:
Testimony of Carll L. Baldwin ................. 43
A lexandria Baldwin .............. 56
C. C. (Jack) Owens .............. 66
Colloquy between Court and Counsel ................. 74
Testimony of Iva G. Michael ..................... 77
J. C. Caldwell ........................ 114
Edwin G ardner ....................... 132
W. E. Shortridge .................... 136
Evidence for Defendant:
Testimony of J. C. Caldwell (Recalled) . . . 142
II
INDEX—Continued
P ag e
Transcript of Proceedings, etc.—(Continued):
Evidence for Plaintiff:
Testimony of Eugene Connor ....................... 154
Fred Taylor ............................... 165
J. C. Caldwell (Recalled) . . 169
Evidence for Defendant:
Testimony of J. C. Caldwell (Recalled) . . . 172
Jam ie Moore ................ 175
W. J. Haley ............................. 180
H enry W illiam Shaffner, J r. 193
Clerk’s Court M inutes .................................................... 199
Memorandum Opinion ................................................. 200
Order Dismissing Action in Conformity w ith Memo
randum Opinion .................................................... 205
Notice of Appeal ............................................................... 206
Appeal B o n d ................ - ....................................................... 207
Order Extending the Time w ithin Which the Record
on Appeal M ust be filed w ith U. S. Court of
Appeals ..................................................................... 207
Order To Transm it Original E x h ib i ts ........................... 208
Motion to Dismiss Filed on Behalf of Defendant
Birmingham Term inal Company ...................... 209
Designation of Contents of Record on A p p e a l .......... 210
Clerk’s Certificate ............................................................. 213
MOTION TO ALLOW U SE OF PR E V IO U S RECO RD
ON A P P E A L IN SECOND A PPE A L .
Filed Feb. 24, 1960.
U N ITED STATES COURT OF A PPE A L S, F IF T H
CIRCUIT.
CIVIL ACTION 18280.
CASE No. 16,717.
CARL L. BALDWIN, ET AL.,
P lain tiffs,
versus
J. W. MORGAN, E T AL.,
D efendants.
Now come the p la in tiffs and m ove th a t they be a l
lowed to use th e reco rd on file w ith U nited S ta tes
Court of Appeals fo r th e F ifth C ircuit, said record be
ing designated as No. 16,717, in connection w ith the
appeal from the D ecree rendered on M arch 29, 1957,
by Judge Seybourn H. Lynne upon a t r ia l of the
aforesaid case on the m erits in th e U nited States D is
tr ic t Court for the N orthern D is tr ic t of A labam a,
Southern D ivision, and said case having been prev i
ously before th is C ourt on appeal and sam e having
been rev ersed and rem an d ed to th e U nited States
D is tric t Court for the N orthern D istric t of A labam a,
Southern Division, w ith in struc tions to h ear the said
case on the m erits.
2
D esignation of Contents of R ecord on A ppeal w as
filed on F eb ru a ry 17, 1960, b u t did not include the
B ill of Com plaint and other docum ents, pleadings and
m otions filed in the p rev ious appea l and p la in tiffs
desire to include in the ir reco rd on this appeal the
sam e record th a t w as before the U nited S tates C ourt
of A ppeals for the F ifth C ircu it in th e f ir s t ap p ea l in
addition to all they have designated in the ir D esigna
tion of Contents of R ecord on A ppeal filed on the
17th day of F eb ru a ry , 1960.
OSCAR W. ADAMS, JR .,
A ttorney for P laintiffs-A p-
pellan ts.
G ra n te d :
RICHARD T. RIV ES,
U. S. C ircu it Judge.
F e b ru a ry 24, 1960.
ANSW ER.
F iled M arch 17, 1958.
(Title O m itted.)
Come the defendants, C. C. (J a c k ) Owen, J im m y
H itchcock and Sibyl Pool, as m em bers of the A la
b am a P ub lic Service Com m ission, and for answ er to
the com plaint exhibited ag a in s t them in this cause,
say as follows:
1. The defendants deny th e allegations of p a ra
graphs 1(a) and 1(b) of the com plaint.
3
2. The defendants deny the allegations of p a r a
g rap h 2 of the com plain t.
3. The defendants deny the allegations of p a ra
graph 3 of t'he com plaint.
4. The defendants adm it th a t the com plaint is an
attem pt on the p a r t of th e p la in tiffs to secure a
perm anen t injunction as alleged th e re in , b u t deny
th a t there is any policy, p ractice , custom or usage of
these defendants w hich in fringe in any w ay upon the
constitutional righ ts of the p la in tiffs; th a t all other
allegations of said p a ra g ra p h 4, inconsisten t h ere
w ith, a re denied.
5. The defendants deny th a t R ule No. 23(a) of the
F ederal R ules of Civil P rocedure au thorize a su it
such as the one h ere a sse rted fo r p la in tiffs , and on
behalf of all o ther negro citizens s im ila rly situated .
6. The defendants adm it th e allegations of p ara
graph 6 of the com plaint.
7. The defendants adm it the a llegations of p a ra
g rap h 7 of the com plaint.
8. The defendan ts have no personal knowledge of
the m a tte rs and th ings alleged in p a ra g ra p h 8 of the
com plaint, and based upon such in fo rm ation w hich
they do have and upon such inform ation and belief
th ey deny the allegations thereof.
9. The defendants a re w ithout know ledge of the
m a tte rs and th ings alleged in p a ra g ra p h 9 of the
4
com plain t and, therefore, neither adm it, deny, nor
confess or avoid the same.
10. Upon inform ation and belief, the defendan ts de
ny the allegations of parag raph 10 of the com plaint.
11. The defendants adm it the allegations of p a ra
g rap h 11 of the com plaint, and w ith re fe ren ce to th a t
p a r t thereof which av ers th a t, acting as S ta te Offic
e rs and under the color of Section 186, T itle 48, Code
of A labam a 1940, the defendants have issued or caused
to be issued, orders d irecting and requ iring th e seg
regation of negroes in ra ilroad w aiting rooms, aver
the following:
The A labam a Public S erv ice Commission issued
G eneral O rder No. T-2, w hich w as adopted Ju ly 17,
1923, and am ended N ovem ber 12, 1923, as G eneral
O rder No. 3, w hich O rd er p rov ides as follows:
‘A ll com m on ca rr ie rs by ra il shall provide and
m ain ta in a t each of th e ir passenger depots w here
agents a re employed, for the com fort and accom m o
dation of passengers w aiting fo r or departing from
tra in s , sep ara te sitting or w aiting rooms for the
w hite and negro races, of suffic ien t cap ac ity to m eet
the reasonab le requirem ents a t such stations, which
shall be kept clean and sanitary, w ith sufficient and
reasonably com fortab le chairs or seats , and shall keep
such room s su itab ly heated in cold w eather, p roperly
ventilated , well lighted a t n igh t and supplied w ith suf
ficient fre sh drinking w a te r when requ ired to be open.
There shall also be m ain ta ined w here they now ex-i
ist, in or n e a r such depots, ad eq u a te p riv ies or to ilet
5
facilities, and separately for m ales and fem ales of
the w hite and negro race s , w here now so ex isting ,
and such additional to ile t fac ilities as m ay be ordered
by the Com m ission from time to time, a t such s ta
tions and o ther agency sta tions, where found to be
n ecessary , which shall be kept san ita ry and availab le
w hile rooms are open. Said sitting or w aiting room s
shall be opened a t le a st 30 m inutes before the sched
uled a r r iv a l of p assen g er tra in s , and, when th e re a re
incom ing passengers to such stations, shall rem ain
open for a reasonable tim e a fte r the departu re of
such tra in s .”
The defendants fu rth e r a v e r that' th is is the only
order of the A labam a Public Service Comm ission of
record w hich p e rta in s or relates to the m a tte r under
consideration , bu t the defendan ts have continued in
force and effect said order to the date of the filing
of the com plain t in th is cause, and still continue the
same in full force and effect, av erring , how ever, th a t
said o rder does not v io late the constitu tional right's of
p la in tiffs , who w ere engaged in in te rs ta te com m erce
a t the tim e of the actions com plained of, or any o thers
s im ila rly situated .
12. F o r answ er to p a rag rap h 12 of the com plain t,
the defendants a re inform ed and believe, and upon
such inform ation and belief aver th a t the m a tte rs and
th ings alleged in the f irs t p a ra g ra p h of p a rag rap h 12
of the com plaint a re true and co rrec t. The defendants
are also inform ed and believe, and upon such infor
m ation and belief aver tha t the other a llegations of
sa id p a rag rap h 12 a re u n tru e and are, therefore, de
nied.
6
13. The defendants deny th e a llegations of p a ra
g rap h 13 of the com plaint.
14. The defendants deny the a llegations of p a ra
g rap h 14 of the com plaint.
15. F u rth e r answ ering sa id 'complaint, the defend
an ts aver th a t the m a tte r in con troversy does not ex
ceed the sum of th ree thousand do llars ($3,000), ex
clusive of in te re s t and cost; tha t the C ourt does not
have ju risd iction of th is cause; th a t no facts a re
averred there in under any of the ru les fo r pleading,
F e d e ra l or o therw ise, w hich show any r ig h t on the
p a r t of the p la in tiffs to h av e Section 186, T itle 48, Code
of A lab am a 1940 dec la red unconstitu tional and void;
th a t Section 1866 applies to in tra s ta te co m m erce only
and to in tra s ta te p assen g ers ; th a t p la in tiffs , as alleged
by them , w ere in te rs ta te p assen g ers and as such have
no s tand ing for them se lv es , or for others s im ila rly sit-1
uated, to challenge the constitu tionality of Section 186,
or th e above order se t fo rth here in of the A labam a
P ub lic Service Commission issued p u rsu a n t there to ;
th a t no rig h ts gu aran teed to the p la in tiffs and o ther
negroes under the C onstitu tion or law s of the U nited
S ta tes of A m erica have been v io lated by these de
fendan ts; th a t the facts alleged by the p la in tiffs do
not show any right' to a d ec lara to ry judgm ent or to an
in junction , either tem porary or perm anent, ag a in s t
these defendants.
JO H N PATTERSO N,
(John P a tte rso n ),
A tto rney G eneral of A la
bam a,
Ju d ic ia l Building,
M ontgom ery, Alabama.
7
GORDON MADISON,
(Gordon M adison),
A ssis tan t A ttorney G eneral,
A ttorneys for D efendants,
C. C. (Jack ) Owen,
Jim m y H itchcock and
Sibyl Pool, as m em bers
of The A labam a Public
Service Commission.
Jud ic ia l Building,
M ontgom ery, Alabama.
I h e reb y certify th a t I have m ailed a copy of the
foregoing answ er to D em etrius C. New ton and O scar
W. A dam s, A ttorneys for P la in tiffs , 1630 F o u rth Ave
nue, N orth, B irm ingham , Alabama.
This the 27th day of January 1958.
GORDON MADISON,
(G ordon M adison),
A ssistan t A ttorney G eneral.
Ju d ic ia l Building,
M ontgomery, A labam a.
MOTION FO R SUBSTITUTION.
Filed M arch 24, 1958.
P la in tiffs move the Court for an O rder substituting
E ugene Conner, as defendant herein, in p la te of R. E .
L indbergh, on grounds tha t the term of office of
sa id R. E. L indbergh expired on N ovem ber 4, 1957,
and tha t the said E ugene Conner on N ovem ber 4,
8
1957, took office as a m em b er of th e B oard of City
C om m issioners of the City of B irm ingham , A labam a,
and now holds such position, and th a t there is a sub
stan tia l need for continuing th is action ag a in st the
said Eugene Conner, in tha t he has adopted the p ra c
tice, policy, custom and u sag e of enforcing under color
of Sec. 186, Tit. 48, 1940 Code of A la., segregation of
p lain tiffs and other N egro citizens, solely because of
th e ir race and color in the B irm ingham Term inal S ta
tion, located in the City of B irm ingham , A labam a, as
m ore p a rtic u la r appears from the A ffidavits and sup
p lem enta l com plain t of petitioners’ counsels a ttached
hereto.
D EM ETR IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
A ttorneys for P lain tiffs.
A ffidavit.
S ta te of A labam a,
Jefferson County.
P ersonally appeared before m e the undersigned au
tho rity fo r and in the said County and sa id State,
D em etrius C. Newton and O scar W. A dam s, J r . , Coun
sels for petitioners in the above styled cause, who
being by me first duly sworn, depose and say th a t
th e re is a substan tia l need for continuing and m ain
taining th is action and in substitu ting D efendant, E u
gene Conner, fo r R. E . L indbergh, as the te rm of of
fice of R. E . L indbergh, expired on N ovem ber 4, 1957,
as m em ber of the B oard of City Commissioners of
th e City of Birm ingham , A labam a, and th e sa id E u
gene Conner assum ed office on N ovem ber 4, 1957, as
m e m b er of th e B oard of City C om m issioners of B ir
m ingham , A labam a.
9
A ffian ts fu rther aver th a t the law upon which the
action is based is still inforce and effect and upon
inform ation and belief, th e defendant, E ugene Conner,
h as com m itted a n d /o r condoned violations alleged in
the com plain t, and th a t such violation h as not been
rendered lawful by reason of any law o r event since
th e inception of this action.
A ffiants fu r th e r a v e r upon inform ation and belief
th a t the sa id E ugene Conner adopts the a ttitu d e of his
predecessor and w ill proceed to enforce sa id Sec. 186,
Tit. 48, 1940 Code of A la., and th e custom , p rac tice ,
policy or usage in B irm ingham , A labam a, w ith re
spect' to enforcing segregation of plaintiffs and o ther
N egro citizens, solely because of th e ir race and color
in the B irm ingham T erm in a l Station, located in the
C ity of B irm ingham , A labam a.
D E M E T R IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
A ttorneys fo r P lain tiffs.
Sworn to and subscribed before m e this 24th day
of M arch, 1958.
A G N ES N. STU D EM ISE,
(Seal) N otary Public.
ANSW ER.
Filed A pril 1, 1958.
(Title O m itted.)
Come the defendants J. W. M organ and J . T W ag
goner, ind iv idually and as m em bers of the Com-
10
m ission of the City of B irm ingham , and R E . L ind
bergh, individually and as a form er m em ber of the
Commission of the City of B irm ingham , and for a n
sw er to th e com plaint as am ended heretofore filed in
the above styled cause, say as follows:
1. These defendants deny the allegations of p a r a
g rap h s num bered 1(a) and 1(b) of the com plaint as
am ended.
2. F o r answ er to p arag raph num bered II of the
com plaint as am ended, these defendants say : They
deny th a t th is is a proper proceeding fo r a d e c la ra
tory judgm ent under T itle 28, U nited S tates Code, Sec
tions 2201 and 2202. They deny th a t they are enforc
ing, execu ting or pursu ing against plaintiffs or any
o ther Negro sim ilarly s itua ted , a policy, p ractice, cus
tom or usage which d ep rives p la in tiffs and other per
sons sim ilarly situated of any r ig h t they m ay have
to use the sa id w aiting rro m designated “ In te rs ta te
and W hite W aiting R oom ” a t sa id T erm in a l Station.
They deny each and every o ther allegation of said
p arag rap h num bered II.
3. These defendants deny th e allegations of p a r a
g rap h num bered III of the com plaint as am ended.
4. These defendants adm it th a t the com plain t as
am ended is an attem pt on the p a r t of the p la in tiffs
to secu re a p e rm an en t in junction as alleged therein,
bu t deny th a t the re is any policy, p rac tice , custom or
usage of these defendants which infringes in any way
upon the constitutional righ ts of the plaintiffs; th a t
all o ther allegations of said p a rag rap h num bered IV,
inconsisten t herew ith , a re denied.
11
5. These defendants deny th a t R ule No. 23(a) of
th e F ederal R ules of Civil P ro ced u re au thorizes a su it
such as the one here asserted for p la in tiffs, and on
behalf of all other Negro citizens sim ilarly situated.
6. These defendants adm it the allegations of p a r
ag rap h num bered VI of th e com plaint as am ended.
7. These defendants adm it the allegations of p a ra
g rap h num bered VII of th e com plain t as am ended ex
cept th a t defendan ts deny th a t R. E . L indbergh is a
m em ber of the City Com m ission of th e City of B ir
m ingham and th a t R. E . L indbergh is Police Com
m issioner of the City of B irm ingham . D efendants av er
th a t R. E . L indbergh h a s not been a m em ber of the
Com m ission of the C ity of B irm ingham since N ovem
ber 4, 1957. These defendants fu r th e r deny th a t this
action is p roperly brought ag ain st these defendants in
th e ir individual capacity .
8. These defendants deny the allegations of p a ra
g rap h num bered VIII of the com plaint as am ended.
9. These defendants adm it the allegations of p ar-
g ra p h num bered IX of th e com plaint bu t deny th a t
the p la in tiffs now aw ait t r ia l as the resu lt of said
a rre s t. Defendants fu rth e r aver th a t th e case ag a in st
the p la in tiffs resu lting from said a rre s t w as nolle pros-
sed in th e R ecorders C ourt of the City of B irm ingham .
10. These defendant's deny th a t they have acted un
der color of Section 186, T itle 48, 1940 Code of A la
b a m a and they fu rth e r deny th a t they h av e acted in
any m anner which infringed or resu lted in the in-
12
fringem ent in any w ay upon the constitutional rig h ts
of the plaintiffs.
11. These defendan ts a re w ithout p ersonal know l
edge of the m a tters and th ings alleged in p a rag rap h
num bered X I of the com plaint as am ended and, th e re
fore, neither adm it, deny nor confess the sam e.
12. F o r answ er to p a ra g ra p h num bered X II of the
com plaint as am ended, these defendants are inform ed
and believe, and upon such inform ation and belief av e r
th a t the m a tte rs and th ings alleged in th e f irs t p a r a
g rap h of sa id p a rag rap h num bered X II of the com-j
p la in t a re tru e and correct. These defendants are also
inform ed and believe, and upon such inform ation and
belief aver th a t the other a llegations of said p a ra
g rap h num bered X II a re u n tru e and are , therefore,
denied.
13. F o r answ er to p arag rap h num bered X III of the
com plain t as am ended, these defendan ts deny th a t
th ey have committed any illega l and unconstitu tional
acts, as alleged, and deny each and every a llegation
of said p a ra g ra p h num bered X III.
14. These defendants deny the allegations of p a r
ag rap h num bered X IV of the com plain t as am ended.
15. F u rth e r answ ering said com plaint as amended,
these defendants aver th a t the m atter in controversy
does not exceed the sum of th ree thousand dollars
($3,000.00), exclusive of in terest and costs;' th a t the
Court does not have ju risd ic tion of this cause; th a t
no facts are averred th e re in u n d er any of the rules
for pleading, federal or otherw ise, w hich show any
13
rig h t on the p a r t of p la in tiffs to have Section, 186,
T itle 48, Code of A labam a of 1940 declared uncon
stitu tional and void; th a t said Section 186 applies to
in tra s ta te com m erce only and to in tra s ta te passeng
ers; th a t p lain tiffs, as alleged by them , w ere in te r
s ta te passengers and as such have no staniding for
them selves, or for others s im ila rly s itu a ted , to chal
lenge the constitu tionality of said Section 186, or to
any o rder of the A lab am a P ub lic Service Commission
issued p u rsu a n t there to ; th a t no rig h ts gu aran teed to
the plaintiffs and o ther N egroes under the C onstitu
tion or laws of the U nited S tates of A m erica have
been v iolated by these defendants; th a t the fac ts a l
leged by the plaintiffs do not show any righ t to a
d e c la ra to ry judgm ent or to an injunction, e ither te m
porary or p erm anen t, ag a in st these defendants.
16. E ach and every allegation of the com plaint as
am ended not in th is answ er expressly adm itted or
confessed and avoided is hereby denied.
JA M ES H. WILLIS,
(Jam es H. W illis),
J . M. B R E C K E N R ID G E ,
(J . M. B reckenridge),
A ttorneys for J. W. M organ
and J. T. W aggoner, in
dividually and as m em
b ers of the Commission of
the City of B irm ingham
and R. E . L indbergh, in
dividually and as a fo rm er
m em ber of the Com m ission
of the City of B irm ingham .
14
C ertifica te .
I hereby certify th a t I have m ailed a copy of th e
foregoing answ er to D em etrius C. N ew ton and O scar
W. Adams, A ttorneys for P la in tifs , 1630 F o u rth A ve
nue, N orth, B irm ingham , A labam a.
This the 1st day of A pril, 1958.
J . M. B R E C K E N R ID G E ,
(J . M. B reckenridge),
A ttorney for sa id D efendants.
602 City H all Building,
B irm ingham 3, A labam a.
ANSW ER O F BIRM INGHAM TER M IN A L COM
PANY.
F iled A pril 1, 1958.
(Title O m itted.)
1. F o r answ er to the averm ents of p a rag rap h 1(a)
of the com plaint, th is defendan t denies the averm ent
of ju risd iction as to this defendant, and denies th a t
the m a tte r in controversy exceeds the sum of $3,000.
2. As to p a rag rap h 1(b), th is defendant denies th a t
it h a s by any action by it or au thorized o r p a rtic ip a ted
in by it, deprived the p la in tiffs of any rig h t, p riv ilege
or im m unity.
3. As to p a ra g ra p h II, this defendant denies tha t
th is p roceed ing is au thorized as a proceeding for dec-
15
la ra to ry decree under T itle 28, U.S. Code Section 2201-
2202 or otherw ise. This defendant also denies the s ta te
m ents or assum ptions se t out in the hypo thetica l ques
tion subm itted and, in p a rticu la r, denies th a t i t has
in the p a s t a ttem pted or proposes to enforce, execute
or p u rsue a g a in s t p la in tiffs or any other negro any
policy, p rac tice , custom or usage w hich deprives them
of th e use of any w aiting rrom or of any r ig h t or
priv ilege.
4. This defendant denies th a t the facts and circum
stances involved in th is proceeding w a rra n t or ju stify
any in terlocu tory or perm anen t in junction as to any
action ta k e n or proposed by th is defendant, and dej
nies th a t p la in tiffs are subjected to the r isk o r p ros
pect of irrep a rab le in ju ry , as av erred in p a rag rap h
III of the com plaint.
5. This defendant denies the averm ents of p a r a
graph IV of the com plain t other th a n as an averm ent
of p la in tiff’s conception of the com plaint, and denies
the averm ent's thereof im ply ing o r purporting to av er
action or p a r tic ip a tio n by this defendant in the
enforcem ent w ith respect to p la in tiffs of any alleged
“ policy, p rac tice , custom or usage” .
6. F o r answ er to the averm en ts of p a ra g ra p h V
of the com plaint this defendant denies the im plied
averm en t th a t the re a re num ero u s o thers s im ila rly
situa ted in such w ise as to justify th is action under
R ule 23; and denies th a t th is proceeding can p roperly
be brought and m ain tained as a c lass suit.
16
7. This defendant adm its the averm ents of p a r a
g rap h VI of the com plaint as to the race, citizenship
and residence of p la in tiffs.
8. This defendant admits th a t the ind iv idual defend
ant's n am ed in p a ra g ra p h VII w ere m e m b ers of the
B irm ingham City Com ission when th is com plaint was
f ile d ; bu t denies tha t this defendant w as properly
joined w ith sa id ind iv idual defendants (w hether sued
in the ir individual or in the ir official capacity ) for
any alleged jo in t or other ac ton of said defendants.
9. This defendant is w ithout know ledge of any
agreem ent or o ther concurrence betw een or am ong
th e ind iv idual defendants (m em bers of th e B irm ing
ham City Com m ission) as set fo rth in p a ra g ra p h VIII
of the com plaint, and avers th a t this defendant w as
not a p a r ty to and h ad and has no responsib ility in
the m a tte r of any such ag reem ent or in th e alleged
action of the said ind iv idual defendants in pu rsuance
thereof, or in any action com plained of in said p a ra
graph.
10. This defendan t adm its the averm en ts of p a r a
g rap h IX, except th a t p la in tiffs now aw ait tr ia l, but
avers th a t neither th is defendant nor its se rv an ts or
agents h ad any p a r t in any alleged a rre s t of p la in
tiffs or in any previous or subsequent action w ith r e
spect to such a rre s t or the deten tion of plaintiffs.
11. In an sw er to the av e rm en ts of p a ra g ra p h X th is
defendan t av e rs th a t it is adv ised of no public du ty
on the defendant City Com m issioners w ith respect to
T itle 48. Section 186 of the Code of A labam a (1940);
17
and avers th a t th is defendant is not responsible for
and h a s not partic ipa ted in any action by sa id de
fendants under color of said s ta tu te .
12. This defendant adm its the averm ents of para
g rap h X I as to the official s ta tu s of defendant m em
bers of the A labam a Public Service Commission and
avers th a t the facts w ith respect to the action of said
Comm ission acting by sa id m em ber w ith re sp ec t to
T itle 48, Section 186 of the Code of 1940 a re that the
Commission has continued in force or perm itted to
continue in force A .P.S.C . G eneral O rder T-2, adopted
Ju ly 17, 1923, as am ended N ovem ber 12, 1923, which
o rder is now know n as G eneral O rder No. 3, a copy
of w hich is a ttached here to as A ppendix A. This de
fendant denies th a t the sa id o rder requ ires th is de
fendan t to take any action ag a in s t any ind iv idual of
any race who en ters a w aiting room identified for use
responsive to the custom s m entioned below by p e r
sons of another race, and denies th a t any such action
h as been taken or is proposed to be tak en by this de
fendant under color of or in purported com pliance
w ith th e said order. Said order requ ires only th a t th is
defendant m ain tain w aiting room s and other fac ilities
appropria te ly designated for th e convenience of those
who w ish to conform to the long-established social cus
tom s of the com m unities in which th is defendant does
business, and by th a t action to con tribu te to the m ain
tenance of in te r-rac ia l good-will, and th e avoidance
of incidents, tensions and po ten tial social disorder.
13. This defendant adm its the averm ents of p a r a
g raph X II of the com plaint as to th is defendant’s
m a in ten a n ce and operation of w aiting rooms and other
18
s ta tio n facilities fo r passen g ers en titled to depot fac ili
ties from the railroads m ak ing use of the defendant’s
B irm ingham T erm in a l Station. D efendant adm its th a t
i t m ain tains w aiting room s w hich m ake possible the
se p a ra tio n of the races both as to those who a re re
qu ired by s ta tu te or o rder of the A labam a P ub lic Serv
ice Commission to conform to the custom and p ra c
tice of ra c ia l separation , and as to those who desire
by th a t course, v o lu n ta rily and w ithou t respect to
compulsion of law, to con tribu te to th e m ain tenance
of in te r-rac ia l good-will and the avoidance or m in im iz
ing of incidents, tensions and po ten tia l d isorder. This
defendant avers th a t in the C ity of B irm in g h am there
h as alw ays existed a custom and u sag e fo r the sep
a ra tio n of th e race s in such serv ices, and th a t it' is ;
r ig h t and proper, in fu rth e ra n ce of good-will and p ub
lic order, th a t th is defendant m a in ta in and ind icate
facilities encourag ing and m ak in g p rac ticab le th e ob
servance of the custom , w h eth er or no t the re be a
va lid s ta tu te or regula tion ou tstand ing to com pel it.
This defendant denies the averm ent of p a ra g ra p h XII
th a t it has pursued a policy of denying p la in tiffs or
o ther negroes s im ilarly situated the use of the w aiting
room designated for in tersta te and w hite passengers,
and says th a t it did not deny p la in tiffs the u se of sa id
w aiting room a t any time.
14. This defendant denies the averm ent of p a ra
graph X III of th e com plain t as to illegal and uncon
stitu tiona l action by defendants and denies th a t p la in
tiffs have suffered or w ill in the fu tu re su ffe r any
loss or inconvenience as a re su lt of any w rongful a c
tion on the p a r t of the B irm ingham T erm inal Com
pany.
19
15. This defendant denies the averm en ts of p a ra
g rap h X IV as to th rea tened irre p a ra b le in ju ry and
the conclusions of law th e re in as t'o the r ig h t of p lain
tiffs to m a in ta in th is action e ith er for them selves or
as a c lass suit.
16. F u rth e r answ ering the averm ents of fa c t and
of alleged violation of legal right's of p la in tiffs or
others s im ila rly situated in the com plaint as a whole,
th is defendant denies tha t it h as en tered into any
agreem ent, conspiracy , collusion, or p lanned course
of p a ra lle l conduct, express or implied, ta c it or ex
plicit, w ith any other defendant or w ith any person
w hom soever, w hether or no t acting under color of
law, to deny the p la in tiffs or any other person sim i
la r ly s itu a ted th e enjoym ent of any righ t, p riv ilege
or im m unity secured by th e constitution or laws of the
U nited S ta tes . This defendant denies th a t its offering
or m aking availab le se p a ra te fac ilities for the races
is or has been done solely under compulsion of, o r in
com pliance w ith, laws and regu la tions of the S ta te of
A labam a; and avers th a t it would have m aintained
and m ade available such fac ilities , and would continue
to m ake availab le such facilities, regard less of any
compulsion so to do, as a m easu re tending to avoid
fric tion and con troversy on the prem ises and in fu r
th erance of the public in te rest to th a t end. This de
fendan t avers th a t the m ain tenance of such dual f a
cilities and a p lacard m aking p racticab le such sep
a ra tio n of races, w ithout any im plication of com pul
sion or any a ttem p t or a c t to force the separation ,
by those desirous of m a in ta in in g it in' the w aiting
room s and toilet facilities, is not only not a violation
of any constitutional right, bu t is in fu rtherance of
20
in te r-rac ia l good will, social order, and dom estic t r a n
quility , as is w idely recognized by the v a s t m a jo rity
of negroes and w hites in the S ta te of A labam a w ho
vo lun tarily conform to such an a rran g em en t w ith re
g a rd to num erous fac ilities and serv ices, including
ra ilro ad w aiting room s.
17. A decree by th is C ourt forb idding or im p airin g
the d iscretion of this defendant to inv ite negroes and
w hites to occupy sep ara te w aiting rooms would, as
a m a tte r of ju d ic ia l knowledge, im pair the corporate
r ig h t and the public duty of th is defendant to o p era te
its ra ilw ay station in such m anner as to assu re the
com fort, convenience and safety of its passengers by
appealing to both races to conform vo lun tarily to long-
estab lished custom s and accord and avoid “ inc iden ts” ,
and the crea tion of ill-w ill and individual reactions re
sulting in d iso rder in defendant’s w aiting rooms.
JOS. F . JOHNSTON,
THADHOLT, JR .,
A ttorneys for B irm ingham
T erm inal Com pany.
902 F irs t N ational Building,
B irm ingham 3, A labam a.
The foregoing A nsw er has been m ailed to D em etrius
C. Newton and O scar W. Adams, J r . , Counsel for
P la in tiffs , a t 1630 F o u rth Avenue N orth, B irm ingham
3, A labam a, on th is the 31st' day of M arch , 1958.
JOS. F . JOHNSTON,
By SW.
21
O R D E R GRANTING P L A IN T IF F ’S MOTION TO SUB
STITU TE E U G E N E CONNOR FO R R. E . L IN D
B E R G H AS A PARTY D E FEN D A N T.
(Title O m itted .)
This cause, com ing on to be h ea rd on M ay 22, 1958,
was subm itted to the Court on m otion of p la in tiffs to
substitu te E ugene Connor as a defendant herein in
p lace of R. E . L indbergh. Upon consideration of said
motion and fo r good cause shown:
I t is hereby O rdered, A djudged and D ecreed by the
Court th a t P la in tiffs ’ said m otion to substitu te E ugene
Connor for R. E . L indbergh as a p a r ty defendant' here
in be and the same is hereby g ran ted and said de
fendant, E ugene Connor, is hereby allowed 30 days
from and a f te r the da te of th is o rd er w ith in w hich to
file responsive pleadings.
Done, th is the 26th day of M ay, 1958.
SEYBOURN H. LYNNE,
Judge.
F iled in C lerk’s Office, N orthern D istrict' of A la
bam a, M ay 26, 1958. W illiam E . D avis, C lerk, U. S.
D istric t Court. B y :.......... D eputy C lerk.
22
ANSW ER O F SUBSTITU TED D E FE N D A N T , E U
G E N E CONNER.
F iled Ju n e 19, 1958.
(T itle O m itted.)
Comes th e substitu ted defendant, Eugene Conner, in
dividually and as a m em b er of the Com m ission of th e
C ity of B irm ingham , in the above sty led cau se and
duly adopts as h is answ er to the com plaint tjhe an
sw er heretofore filed there in by th e defendants, J . W.
M organ, J . T. W aggoner and R. E . L indbergh.
JA M E S H. W ILLIS,
(Jam es H. W illis),
J. M. B R E C K E N R ID G E ,
(J . M. B reckenridge),
A tto rneys for substitu ted
D efendant, E ugene Conner.
JA M E S H. WILLIS,
600 City H all,
B irm ingham , A labam a.
J . M. B R E C K E N R ID G E ,
600 City H all,
B irm ingham , A labam a.
C ertifica te of Service.
I, J . M. B reckenridge, one of th e A ttorneys for the
substitu ted defendant, E ug en e Conner, hereby certify
th a t I have on th is 19th day of June, 1958, m ailed ,
postage prepaid , a copy of the foregoing answ er to
D em etrius C. Newton and Oscar W. A dam s, 1630
F o u rth Avenue, N orth , B irm ingham , A lab lam a , At-
23
to rneys fo r P la in tiffs , the sa id address being the la st
know n address of said A ttorneys.
J. M. B R E C K E N R ID G E ,
(J . M. B reckenridge).
NOTICE OF TAKING D EPO SITIO N .
Filed A ugust 5, 1959.
(Title O m itted.)
To: Jam es H. Willis,
Cty A ttorney,
600 City H all,
B irm ingham , A labam a.
Joseph F. Johnston,
A ttorney at Law ,
C abaniss and Johnston,
F ir s t N ational Bank Building,
B irm ingham , A labam a.
H onorable M acD onald Gallion,
A ttorney G eneral,
M ontgom ery, A labam a,
A ttorneys of record for Defendant's.
You a re hereby notified tha t the plaintiff, C arl L.
B aldw in, et al., w ill take the testim ony by deposition
upon ora l exam ination for the purpose of discovery,
or for th e use as evidence in th is cause, of the fol
low ing person:
Queen E. R oberts,
620 E as t S ixth S treet,
N orth L ittle Rock, A rkansas.
24
Said deposition w ill be ta k e n a t the office of A tto r
ney H arold A. F low ers, 119 E a s t F o u rth S treet, P ine
Bluff, A rkansas, on the 21st day of A ugust, 1959, a t
2:00 P.M ., before F ann ie C. M itchell, or before some
other person au thorized by law to adm in ister oaths
and to take depositions. The exam ination w ill con
tinue day to day un til completed.
This the 5th day of A ugust, 1959.
D E M ETR IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
By OSCAR W. ADAMS, JR .,
(O scar W. A dam s, J r .) ,
A ttorney fo r P la in tiffs .
C ertifica te of Service.
I hereby certify th a t I have m ailed a copy of the
foregoing notice to A tto rneys Jam es H. W illis, Joseph
F . Johnston and H onorable M acD onald Gallion, A tto r
ney G eneral, a t the add resses shown above on the
5th day of A ugust, 1959.
OSCAR W. ADAMS, JR .,
Of Counsel for P la in tiffs .
No. 16,717. Carl L. Baldw in, et al., P la in tiff, versus
J . W. M organ, et ah, Defendant's. N otice of Taking
D eposition. In the U nited S tates D istric t Court for the
N orthern D is tr ic t of A labam a. D em etrius C. Newton,
O scar W. Adams, J r . , A ttorneys for P la in tiffs .
25
NOTICE OF TAKING D EPO SITIO N .
F iled O ctober 7, 1959.
(T itle O m itted.)
To: Ja m e s H. W illis,
City A ttorney,
600 City H all,
B irm ingham , A labam a.
A ttorney Joseph F . Johnston,
C abaniss and Johnston,
F ir s t N ational Building,
B irm ingham , A labam a.
H onorable M acD onald Gallion,
A ttorney G eneral,
M ontgom ery, A labam a,
A tto rneys of record for D efendants.
You are hereby notified th a t the p la in tiff, Carl L.
B aldw in, e t al., w ill ta k e the testim ony by deposition
upon oral exam ination for the purpose of discovery,
o r for the use as evidence in this cause , of lth!e fol
low ing person:
D r. Ju a n ita P itts ,
532 South Plym outh,
R ochester 8, New York.
Said deposition w ill be tak en a t the office of A t
to rney R euben D avis, 34 E xchange S treet, R ochester
New Y ork, on the 17th day of O ctober, 1959, a t 10:00
A. M., before said a tto rney or before some other per
son au thorized by law to ad m in is te r oaths and to ta k e
26
depositions. The exam ination w ill continue day to day
u n til com pleted.
This the 6th day of O ctober, 1959.
D EM ETR IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
By OSCAR W. ADAMS, JR .,
A ttorneys for P la in tiffs .
C ertificate of Service.
I do hereby certify th a t I have m ailed a copy of the
foregoing notice to A tto rn ey s Jam es H. W illis, Joseph
F . Johnston and H onorable M acD onald G allion, A t
to rney G eneral, at the addresses shown above on the
6th day of O ctober, 1959.
OSCAR W. ADAMS, JR .,
A ttorney for P la in tiff.
MOTION FO R SUBSTITUTION.
F iled O ctober 9, 1959.
(T itle O m itted .)
P la in tiffs move the Court for an O rder substitu ting
R alph Sm ith , as defendant herein in p lace of Jim m ie
H itchcock, who h as since th e in s titu tio n of th is action
died and the sa id R alph Smith has been appointed to
ta k e his position on the A labam a P ublic Serv ice Com
m ission , and th a t the re is a su b stan tia l need for con
tinu ing th is action a g a in s t the sa id R a lp h Sm ith, in
th a t he has adopted th e practice, policy, custom and
27
usage of enforcing under color of #186, Tit. 48, 1940
Code of Ala., seg regation of p la in tiffs and other N e
gro citizens, solely because of the ir race and color
in th e B irm ingham T erm inal S tation, located in the
City of B irm in g h am , A labam a, as m ore p a r tic u la r ap-'
p ea rs from t'he A ffidavits and supplem ental com plaint
of p la in tiffs ’ counsels a ttached hereto.
D EM ETR IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
A ttorneys for P lain tiffs.
C ertifica te of Service.
I hereby certify th a t I have m ailed a copy of the
foregoing M otion to the H onorable R alph Smith, a t h is
office a t the A labam a P ub lic Service Commission,
M ontgom ery, A labam a, by R egistered Mail, R etu rn
R eceipt R equested, and also a copy of said Motion
to A ttorney Joseph F . Johnston, F ir s t N ational B uild
ing, B irm ingham , A labam a, and A ttorney J . H. Willis,
600 City H all, B irm ingham , A labam a, on th is th e 9th
day of O ctober 1959.
OSCAR W. ADAMS, JR .,
Of Counsel for P la in tiffs .
A ffidavit.
S ta te of A labam a,
Jefferson County.
P e rso n a lly appea red before m e the undersigned au
th o rity for and in the sa id County and said S tate,
D em etrius C. Newton and O scar W. Adams, J r . , A t
to rneys for p la in tiffs in the foregoing M otion, who
being f ir s t duly sworn, depose and say th a t th e re is
a su b stan tia l need for continuing and m ain tain ing th is
action and in substitu ting defendant, R alph Sm ith for
28
Jim m ie H itchcock, who h as died since the in stitu tion
of th is ac tion and the said R alph S m ith h as been ap
pointed to take h is position and has tak en h is position
the A labam a P ub lic Service Commission.
A ffiants fu r th e r aver that' the law upon which the
action is based is still in force and effect and upon
inform ation and belief, the defendan t, R alph Sm ith,
h as com mitted a n d /o r condoned v io lations alleged in
the com plaint, and th a t such v io la tion has not been
rendered law ful by reason of any law or even t since
the inception of th is action.
A ffiants fu rth er aver upon inform ation and belief
th a t the said R alph Sm ith adopts the a ttitude of h is
p redecesso r and w ill proceed to enforce sa id §186,
Tit. 48, 1940 Code of A la., and the custom , p rac tice ,
policy or usage in B irm ingham , A labam a, w ith r e
spect to enforcing segregation of p la in tiffs and other
N egro citizens, solely because of th e ir race and color
in the B irm ingham T erm inal S tation , located in the
C ity of B irm ingham , A labam a.
D EM ETR IU S C. NEW TON,
OSCAR W. ADAMS, JR .,
A ttorneys for P lain tiffs.
Sworn to and subscribed before m e th is 9th day of
October, 1959.
O R ZEL L BILLIN G SLEY , JR .,
(Seal) N otary Public .
29
MOTION R EQ U ESTIN G THAT TH E DISTRICT
COURT R E F U S E TO H EA R TH E PE N D IN G
CASE U N LESS A T H R E E -JU D G E COURT IS IM
PA N E L E D .
F iled O ctober 29, 1959.
(Title O m itted .)
Now com es the p la in tiffs and m ove th a t the D is tric t
C ourt re fu se to h ear th e above sty led cause un less a
th ree -Ju d g e Court is im paneled on the g rounds of lack
of ju risd ic tion and assign as grounds for said Motion:
1. T hat p la in tiffs in the ir com plain t ask th is Honor
ab le Court to convene a th ree-Judge Court as pro-
vided by Tit. 28 of the U nited S ta tes Code, §2284.
This req u est is contained in p a ra g ra p h one of your
p la in tiffs’ p ray e r, and in sa id p a ra g ra p h your p la in
tiffs asked the Court to issue a tem p o rary in junction
enjoining the defendants, and each of them , “ . . . from
enforcing or p u rsu ing a policy, custom or usage or
enforcing §186, Tit. 48, 1940 Code of A labam a, ag a in st
th e p la in tiffs or o ther persons s im ila rly s itu a ted , who
d es ire to use the fac ilitie s of the B irm ingham T er
m in a l S tation on an unsegregated basis , and on the
g rounds th a t sa id policy, custom , usage and s ta tu te
designated , §186, Tit. 48, 1940 Code of A labam a, and
all o rd ers p u rsu a n t th e re to a re null and void and in
violation of the F o u rteen th A m endm ent of the Con
stitu tion of the U nited S ta te s .”
2. Tit. 28, §2284 re fe rs to Tit. 28, §2281, w hich
prov ides as follows:
30
A n in terlo cu to ry or p e rm a n e n t in junction re s tra in
ing th e en fo rcem en t, opera tio n o r execution of any
S ta te S ta tu te by re s tra in in g th e ac tion of any officer
of such S ta te in th e en fo rcem en t or execution of such
s ta tu te or of an o rd e r m a d e by an ad m in is tra tiv e
board or com m ission ac ting u n d er S ta te s ta tu te s , shall
no t be g ran ted by any d is tr ic t C ourt or ju d g e th e re
of upon th e ground of the unconstitu tionality of such
s ta tu te un less the app lica tion th e re fo r is h e a rd and
determ ined by a d is tr ic t C ourt of th ree ju d g es under
§2284 of th is Title.
3. P la in tiffs allege in m an y w ays both in th e body
of the com plain t as w ell as in th e p ra y e r th a t the
T erm in a l C om pany is enforcing a policy, custom or
usage of seg regation and enforcing Tit. 48, §186 of
th e 1940 Code of A labam a, p u rsu a n t to o rders issued
by the A lab am a P ub lic S erv ice C om m ission, and th a t
th e City of B irm ingham is also ac ting un d er color of
Tit. 48, §186, 1940 Code of A lab am a, and is enforcing
sa id s ta tu te w hich is unconstitu tional because it vio-»
la tes the Civil R ights A cts and the F o u rteen th A m end
m en t to th e C onstitution as w ell as the C om m erce
C lause of th e Constitution.
OSCAR W. ADAMS, JR .,
D E M E T R IU S C. NEWTON,
A ttorneys for P lain tiffs .
31
F iled J a n u a ry 26, 1960.
In the U nited S ta tes D is tric t Court, Sou thern Division,
N orthern D is tric t of A labam a.
C arl L. B aldw in, et al.,
vs. Civil A ction #8634.
J . W. M organ, et al., ind iv idually and as m em bers
of th e B oard of C om m issioners of B irm ingham ,
and C. C. (Ja c k ) Owens et al., as m e m b ers of the
A lab am a P ub lic S erv ice C om m ission and the B ir
m ingham T erm in a l Com pany, a corporation .
B irm ingham , A labam a,
O ctober 27, 1959.
Before: H onorable S. H. Lynne, Judge.
A ppearances:
M essrs. D em etriu s C. N ew ton and O scar W. A dam s,
J r . , A tto rneys for the P lain tiff.
M essrs. J a m e s H. W illis and Jam es M. B recken-
ridge, appearing for the B oard of Com m ission
e rs of the City of B irm ingham .
M r. M cD onald Gallion, A ttorney-G eneral, S tate of
A labam a, M r. Gordon M adison, A ss is tan t A tto r
ney-G eneral and M r. W illiam F. B lack, A tto r
ney, A lab am a P ub lic Service Com m ission, ap J
p ea rin g for the A lab am a P ub lic Service Com
m ission.
C abaniss & Johnston, M essrs. A sa R oun tree and
Ja m e s F. Johnston, appearing for B irm in g h am
T erm in a l S tation.
32
P roceed ings.
The Court:
G entlem en, I have overlooked the p lead ings and w as
adv ised , as a m a tte r of fac t, hereto fore th a t a motion
h ad been m ad e in th is case in conform ity w ith the
F ed era l R ules for the substitu tion of a p a r ty defend
ant, for th e su bstitu tion of R alph Sm ith for J im m ie
H itchcock, deceased . T here h as been no order, fo r
m a l o rd e r allow ing th e substitu tion . If the p a rtie s
a re so disposed, and of course I have nc< rig h t to re
qu ire it, if they a re d isposed th e com pla in t can be
am ended by show ing th a t substitu tio n and th a t the
su bstitu ted defendan t adopts th e prev ious answ er of
th e o ther defendants. Now th a t is up to th e affec ted
defendan ts. I th ink the reco rd ought to be set s tra ig h t
on th a t b ecau se th e m otion to su b stitu te h a s not been
fo rm ally p assed on. I t is in th e file. I suggested when
the m a tte r w as called to m y atten tion th rough m y
law c le rk th a t the m otion be filed. The w ay the th ing
now s tan d s it is not a t issue ag a in s t R alph Sm ith and
I assum ed th a t the p la in tiff w as desirous of hav ing all
a ffec ted p a r tie s before the Court.
M r. A dam s:
Yes, sir.
M r. M adison:
W e h av e not had any d iscussion w ith M r. S m ith a t
a ll in reg a rd to th is m a tte r and since th is is a su it
a g a in s t th e P ub lic S erv ice Com m ission as such ra th e r
th a n as an ind iv idual, w a sn ’t that, s tressed in th e F ifth
C ircuit—
33
The Court:
I m u s t say I am not quite su re from th e opinion
w h a t the law w as.
M r. M adison:
I am not quite su re e ith er, Y our Honor.
The Court:
I th ink the C ourt did say specifically th a t such ac-:
tion as w as tak en o r m ay have been taken by the in
d iv iduals w as not ind iv idual action bu t official action.
T hat is w hat it holds. H ow ever, I don’t th ink the Com
m ission h a s an en tity s ta tu s w hich would enable any
body to m ak e the C om m ission itself a p a r ty defend
an t a p a r t from its m em bers.
M r. M adison:
I th ink we estab lished th a t in the M acon County
case.
The Court:
So th a t is th e p rob lem in a nu tshell and I throw
th a t out as a suggestion. T here is another prob lem ,
how ever, w hich has arisen and th a t is w ith re sp ec t
to the m otion to have th is case h e a rd by a three-gudge
Court. And I would inv ite the a tten tion of counsel to
the fac t th a t on F e b ru a ry 19, 1957 in response to a
notice g iven to Ju d g e H utchinson, Chief Jud g e of th e
F ifth C ircu it, by Ju d g e G room s, on the 13th day of
F e b ru a ry 1957, Ju d g e H utchinson declined to constitu te
a th ree-judge Court and his le tte r is in th e file and
re a d s as follows:
“ D ear Judge Grooms. Re B aldw in v ersu s M organ
et al., Civil A ction 8634. I am re tu rn in g the p ap e rs
34
sent m e in the above case w ith th e exp lanation th a t
since th e question of th e constitu tionality of S ta tu tes
d ra fte d fo r seg regation in public tran sp o rta tio n h as
been decided by the S uprem e C ourt in G ayle et al.,
v e rses Brow der e t al., 352 U. S. 903, confirm ing 142
F e d e ra l Supplem ent 707, I cannot ag ree w ith your
view th a t a case for th re e ju d g es is m ade out by th e
decision in the above case. This h as been m y un i
fo rm ru ling in the school cases since the decision in
the B row n cases. I h av e d iscussed the m a tte r sev era l
tim es w ith Ju d g e P a rk e r of th e F ou rth C ircu it o rally
and by le tte r and he ag re e s w ith m e th a t th a t is so.
Indeed I noticed in 142 F e d e ra l Supplem ent, 618, th a t
he has recen tly w ritten an opinion to th is effect.
“ Of course all th a t a D is tr ic t C ourt can do is to
ce rtify to the Chief Jud g e of the C ircu it th a t a m a t
te r w hich requ ires th re e ju dges is pending in C ourt
and it is up to the Chief Ju d g e of th e C ircu it to con
s titu te a th ree judge Court. He w as asked to do it
and he declined , so any fu r th e r action on the p a r t
of th is C ourt would ce rta in ly be out of o rd er and in
add ition to th a t I th ink in supplem enting th a t, I th ink
th a t very c lea rly the "Wichita F a ils Ju n io r College Dis-^
tr ic t v e rsu s Howell, 204 F e d e ra l 2nd P a g e 632, se ts
th e m a tte r a t re s t in the F ifth C ircuit. To th a t m igh t
be added Judge P a r k e r ’s—
M r. A dam s:
W hat w as th a t citation?
The Court:
204 F e d e ra l 2nd a t P ag e 632. The case of D avis
versus The County School B oard of P rin c e E d w ard
County V irg in ia, 142 F e d e ra l S upp lem en t 616, w hich
35
is Judge P a rk e r ’s opinion to w hich Ju d g e H utchinson
re fe rred . And then th e case of the B oard of S uper
v iso rs of L ouisiana S ta te U n ivers ity and A & M Col
lege v e rsu s Ludley, 252 F ed e ra l 2nd, P ag e 372.
So, before we s ta r t le t’s find out w here we stand
on the p lead ings.
I would say th a t I would be declined to m ake a
ce rtif ic a te , an add itional ce rtif ic a te in th is case or to
req u es t the constitu tion of a th ree judge Court.
Now, th e re a re some law yers h ere who a re not de
fending the C om m issioners, M em bers of the Commis-i
sion, and I believe Mr. M adison, you say, you cannot
sp eak and cannot ag ree to a substitu tion for a m a n
th a t you have never ta lked to. Is th a t righ t?
M r. M adison:
I would h es ita te to do it.
The Court:
I w ill issue an o rd e r th en allow ing th e m otion tof
su b stitu te and h ave p rocess served on the C om m is
sion. The case then, is th e re not a t issue, and could
not be until th a t h as been done.
M r. A dam s:
Judge, I believe w hen we filed th is m otion I be
lieve th e process w as issued to R alph Sm ith.
The Court:
We w ill check and see.
Mr. A dam s:
Inform ing h im of this.
36
The Court:
I am ahead of m yself. I note on M ay 22, 1958 you
filed a s im ila r motion to su b stitu te E ugene Connor
fo r R. E . L indbergh and I issued an o rd e r on the
26th day of May 1958 g ran ting the m otion to substitu te
and allow ing th e d efen d an t Connor th ir ty days from
and a fte r the d a te of th is order w ith in w hich to file
responsive p leadings.
M r. A dam s:
Judge, all I can say , we have done. We filed a m o
tion and sen t a copy of it to H onorable R alph S m ith ’s
O ffice a t the A lab am a P ub lic Service Com m ission,
M ontgom ery, R eg is te red M ail, R etu rn -R eceip t-R e
quested , and we h ave rece ived a copy of the rece ip t,
bu t I don’t know w hether th e C ourt h a s ac tu a lly sen t
p rocess notifying him .
The Court:
I t doesn’t ap p ea r in the file. I am of the opinion
th a t no order in th is case would be b inding on R alph
Sm ith un d er the postu re of th e p lead ings. Now the
P la in tiffs m ay say irre sp e c tiv e of th a t we w an t to go
fo rw ard .
M r. M adison:
We are in th is position and I th ink you ap p rec ia te
it. I don’t know w hether M r. Sm ith w ants to be
ch arg ed w ith any th ing th a t occurred before, a ssu m
ing every th ing they allege to be tru e . He h as com e
in in the la s t m onth o r two. I t m igh t req u ire add i
tional p lead ings from him . I don’t h ave any disposi
tion not to proceed.
37
The Court:
T here is no reco rd before me th a t p rocess been is-*
sued to h im as a su b stitu te defendant. Gene, you can
find out.
The record shows, the C lerk h as ju s t exam ined it,
the docket show s th a t th e m otion fo r su bstitu tion is
pending and th e re has been no o rd e r of substitu tion
and no process served.
M r. A dam s:
Ju d g e , I w onder, in o rd er to exped ite th is m a tte r,
if counsel w ould be cooperative enough to try to g e t
in touch w ith M r. Sjmith and see w hether he can s tip
u la te h is being in the case in order for us to know.
We have w itnesses from out of the s ta te and have
m a d e considerable p rep a ra tio n and I assu m e th a t th e y
h av e done the sam e th ing and we would like to d is
pose of it one w ay or the other.
The Court:
Well, m y law clerk com m unicated your m essage to
m e som etim e in the e a rly p a r t of th is m onth and I
suggested , you suggested th a t m aybe the case could
not be se t and should not be in view of th a t fa c t and
I sug g ested w e go ahead and see w hether we could
g e t a s tipu la tion to ge t the su bstitu tion of th e defend
ant. Of course you see the position I am in. I cannot
ask a m a n to s tip u la te som eth ing for a m an he h as
no t ta lk ed to about it.
Mr. A dam s:
I w as ju s t ask ing if counsel would try to con tac t
h im by telephone to see w hat his position is on it.
38
M r. M adison:
I believe, Y our Honor, as you ind ica ted if they w ere
en titled to re lie f they could h ave ju s t as m uch re lie f
w ith th e two defendan ts in th e re as from the th ird
They cou ldn’t do any th ing to h im anyhow if he w as
no t there w hen it happened.
The Court:
Of course they a re in te res ted from th e a lleg a tio n s
of th e com pla in t in fu tu re relief, too.
M r. A dam s:
T hat is righ t. A nd I would like to say th is , so fa r
as th e City of B irm ingham , we did th is the sam e w ay
and I don’t see th a t th e re would be any p rob lem if
th e m a n w as co n tac ted to see if he would ag ree to
it. The City h a s a lready com e in. M r. Connor on a
s im ila r s itu a tio n h a s ag ree d to be substitu ted .
M r. B reckenridge:
If he is ta lk in g about th a t, M r. Connor’s answ er
is in the file.
The Court:
H e sa id th a t is so.
M r. A dam s:
T hat is so in h is case and I w ould say we though t
su re it would be so in M r. S m ith ’s case. I w as ju s t
hoping we could get it over w ith.
M r. M adison:
Y our Honor, I am not too fa m ilia r w ith th e ru le
th a t th is su bstitu tion of the successo r w as continuous.
39
The Court:
There w ere som e cases th a t held th a t and we had
th e sam e prob lem up in the Solomon case. Do you
re m e m b e r?
M r. M adison:
T h a t is righ t.
M r. Adams:
Judge , le t m e consult w ith som e of m y clients.
The Court:
Suppose we ta k e a ten-m inute recess and see w hat
can be done.
(Short rece ss .)
M r. A dam s:
Ju d g e , I w ould like to announce we a re p rep a red
to go fo rw ard w ithout the o ther defendant, R alph
Sm ith . I would like to say in connection w ith our m o
tion req u estin g th a t th e Court refuse to h e a r th e case
un less a th ree-judge Court is im paneled , th a t I can
ap p rec ia te the C ourt's position. H owever, it is m y
opinion th a t th e law s re la tin g to th is s itua tion re fe r
to S ta tu te s w here the C ourt h as a lre ad y ru led upon
the constitu tionality of th e S ta tu te and therefore w hen
th e case com es up in an o th e r fo rm it is u n n ecessa ry
to convene a th ree judge Court. I am also aw are of
s itua tions w here th e Court feels th a t th e contentions
of the p la in tiff a re w ithout m e rit th e re is no necessity
of im paneling a th ree judge Court. But, Section 2281
of T itle 28 specifically se ts forth w herever th e re is
an in terlocu to ry or p erm an en t in junction to re s tra in
th e enforcem ent, operation or execution of any S ta te
40
S ta tu te by re s tra in in g the action of any officer of
such s ta te in the en fo rcem en t or execution of such
S ta tu te or ad m in is tra tiv e b o a rd or com m ission com-'
ing un d er such S ta tu tes it sh a ll be g ran te d not by a
D is tr ic t Court of one judge b u t g ran ted by a D is tric t
C ourt com prised of th ree ju dges u n d er Section 284
of th is T itle. So I know in B row der ag a in s t G ayle a
s im ila r S ta tu te to th is w as held to be unconstitu tional
by a th ree judge Court, b ecau se of a S ta tu te involv
ing the seg reg a tio n of buses in M ontgom ery.
H owever, th is is a d iffe ren t S ta tu te . This is T itle
48, Section 188 of the 1940 Code of A lab am a w hich
deals specifica lly w ith the W aiting Room F ac ilitie s in
A lab am a and su b jec ts th em to th e o rd e r of the A la
b a m a P ub lic S erv ice Com m ission, and we contend in
th is case th a t th e re has been an o rder issued th a t
even if the S ta tu te w ere not suffic ien t to requ ire the
convening of a th ree judge C ourt the o rd e r w hich is
th e A lab am a P ub lic S erv ice C om m ission G enera l O r
d e r T-2 w hich is an old o rd e r b ack in 1923, w ould be
suffic ien t to requ ire the im paneling of a th ree judge
C ourt under Section 2284 of T itle 28. And in our com
p la in t as I h av e s ta te d in m y m otion we spelled out
in m an y w ays th a t the P ub lic S erv ice C om m ission
w as enforcing th a t S tatu te , th a t the A labam a P ub lic
Service C om m ission is following th e policy, custom
and usage of seg regation in th e sta tion and th a t the
T erm in a l S ta tion p u rsu a n t to th a t o rd e r h as p rovided
se p a ra te W aiting R oom s, and w ithout subm itting ,
w ithout w aiv ing our objection th a t in th is p a r tic u la r
c a se a th ree judge C ourt should be im paneled—
The Court:
I u n d ers tan d th a t position and I th in k Ju d g e G rooms
ag reed w ith th a t position w hen he sen t the S ta tu to ry
41
N otice to th e Chief Judge of the C ourt of A ppeals of
the F ifth C ircu it who declined to constitu te the Court.
In addition to th a t in the ligh t of the subsequen t
course of the case, the F ifth C ircu it in reversing m y
o rder su sta in ing the m otion to d ism iss h ad to assum e
th a t I h ad ju risd ic tio n w ithout a th ree judge Court
to issue such an o rd e r as th a t in the ligh t of w hat
happened in the D arling ton case in South C aro lina
or N orth C arolina. T here a sing le judge undertook to
decide a case a ris in g u n d er the law perta in ing to the
ren ta l of som e of these F .H .A ., In su red Housing
P ro jec ts , to tra n s ie n t guest, and w hen it got to the
S up rem e C ourt a fte r th a t they held a single judge
could not do th a t, it had to be a th ree judge, and they
would not p ass on it, bu t rem an d ed th e case for a
th re e judge Court. The F ifth C ircuit, h ad it ag reed
w ith th a t decision would have done the sam e th ing
in th is case, and by th e ir action in tak ing th e case
and tre a tin g it as though th is Court had ju risd ic tion
to p roceed on the m otion, h as sa id a t le a s t sub-si-
lencio th a t th is is not a th re e judge case. So, for th a t
reason, I overru le the m otion for a th ree judge Court
and the o rd er w ill show th a t as to the defendant Jim -'
mie H itchcock th is action is aba ted by his death , and
w e w ill p roceed w ithout the substitu tion.
M r. A dam s:
Ju d g e , I would also like to check w ith the w itnesses.
Is Mr. Caroll p resen t?
(A fter checking) We are ready to proceed.
M r. R ountree:
W e would like to ask for the ru le.
42
The Court:
I am going to ask all of th e w itnesses who have
been sum m oned in th is case to com e around and be
sw orn, a ll of the w itnesses.
(W itnesses sw orn.)
The Court:
All of the w itnesses now excep t th e p a rties w ill have
to go outside of the C ourtroom into th e co rrid o r and
w e w ill ca ll you as soon as w e can ge t to you.
M r. R ountree:
M ay it p lease the C ourt, m ay we have M r. C ald
w ell excused?
The Court:
I w ill excuse h im fro m th e ru le.
M r. M adison:
W hat about M r. J a c k Owens?
The Court:
He is a party .
M r. M adison:
He is a w itness, too.
The Court:
T hat is all righ t. P a r tie s a re excused from the rule.
M r. M adison:
There a re th re e defendants. W hat w ill be the o rder
of cross-exam ination?
43
The Court:
E ac h defen d an t h a s a rig h t to cross-exam ine.
M r. A dam s:
I d idn ’t u nders tand that.
The Court:
He w an ted to know about the order of c ro ss-ex am i
nation . I sa id th e re a re th ree groups and th e a tto r
ney for each group h a s a righ t to c ro ss-exam ine the
w itnesses.
M r. Newton:
Ju d g e , w e w ould like to call C arl L. Baldwin.
CARL L. BALDWIN, called as a w itness, hav ing
been duly sw orn, testified as follows:
D irec t E xam ination .
(By M r. N ew ton):
Q. S ta te your nam e and add ress?
A. C arl L. B aldw in, 206—10th A venue W est.
Q. M r. B aldw in, I call your a tten tio n to on or about
D ecem ber 22, 1957. W ere you a g u est of the B irm in g
h a m T erm inal Company, or w ere you in th e Birm ing-'
h am T erm in a l S ta tion a t or about th a t tim e?
A. Yes.
Q. W hat w ere you doing th e re on th a t occasion,
M r. B aldw in?
A. W aiting for a tra in ,
Q. H ad you a t th a t tim e p u rch ased any tick e t to
r id e a tra in leav ing th a t sta tion?
A. P rev io u s to th a t da te I had.
44
Q. W here w ere you on your w ay to?
A. M ilw aukee, W isconsin.
Q. I show you h ere , M r. B aldw in, a pho tosta tic
copy of a ra ilro ad tick e t. Is th a t the tick e t th a t you
p u rch ased to go to M ilw aukee, W isconsin, on th is oc-‘
casion?
A. Yes, it is.
M r. Newton:
We offer th is as a P la in tif f ’s exhibit.
(P la in tif f ’s E x h ib it # 1 m ark e d for id en tifica tion .)
Q. Now, Mr. B aldw in, did th a t tick e t you p u r
chased , did you p ay for th a t tic k e t on th a t occasion?
A. Not on th is date.
Q. Did you p ay for th a t tick e t som etim e previous
to the occasion of D ecem ber 22?
A. Yes.
Q. How did you p ay for th a t ticke t?
A. By check.
Q. M r. B aldw in, I show you a check here. Is th a t
a pho tosta tic copy of th e check w ith w hich you paid
fo r i t on th a t occasion?
A. Yes.
M r. Newton:
We offer th is, Y our Honor, as P la in tif f ’s E x h ib it 2.
(P la in tif f ’s E x h ib it 2 m arked for iden tifica tion .)
Q. Now, Mr. B aldw in, on th is occasion on D ecem
b e r 22, 1957, I m e an 1956, w h a t tim e in th e d ay or
n igh t did you a rr iv e a t th e B irm in g h am T erm in a l S ta
tion?
45
A. A bout a quarter-of-five in the m orning.
Q. W hat tim e w ere you scheduled to leave th e T er
m in a l C om pany on your tr ip to M ilw aukee?
A. I beg your pardon. I a rriv e d a t a quarte r-to -s ix
and the tra in le ft a t 5:55.
Q. Now, a t the tim e you w ent into the T erm in a l
S tation did you go into a w aiting room ?
A. Yes.
Q. Do you reca ll if th e re w ere any signs over the
door of th is W aiting Room?
A. T here w as a sign up there.
Q. Do you reca ll w h a t th a t sign said?
A. It said , “ In te rs ta te and W hite P a sse n g e rs .”
Q. Now, Mr. B aldw in, I show you h ere a sign. Is
th a t th e sign th a t ap p ea red over the door of the T er
m in a l S tation?
A. Yes, th a t is it.
M r. Newton:
We offer th is as P la in tiff’s E xh ib it 3.
(P la in tiff’s E xh ib it 3 m arked for iden tifica tion .)
Q. Now, M r. Baldw in, a f te r going into th is W aiting
Room w ere you seated?
A. Yes.
Q. W as anybody w ith you on the occasion on th is
tr ip ?
A. My wife.
Q. Did any th ing unusual happen to you a fte r being
seated in th e W aiting Room m ark ed In te rs ta te and
W hite P a sse n g e rs a t the B irm ingham T erm in a l S ta
tion?
A. W ell, a f te r we h ad been sea ted th e re about tw en
ty m inu tes two policem en cam e in to us.
46
Q. D id they h ave any conversation w ith you, the
po licem en you re fe rre d to?
A. One did.
Q. W ere th ese police officers of the City of B ir
m ingham ?
A. Yes.
Q. W ere you ab le to iden tify th e m as being police
officers of the City of B irm ingham ?
A. Yes.
Q. How w ere you ab le to so iden tify them ?
A. Well, by th e ir uniform s.
Q. Now, M r. B aldw in, w h a t con v ersa tio n did the
po licem en have w ith you on th is occasion?
A. Well, one policem an to ld us th a t th e re w as a
W aiting Room over on the o th e r side of the build ing
for colored people.
Q. And did you m ak e a rep ly to th a t s ta tem en t?
A. I told h im th a t we w ere quite com fortab le w here
we w ere.
Q. I fu r th e r a sk you, M r. B aldw in, if a t som e tim e
la te r o ther police officers jo ined th e two police ofJ
ficers?
A. Yes.
Q. How m an y other police o fficers joined th e m on
th is occasion?
A. T here w ere five of them .
Q. A nd did you have any fu rth er co n v ersa tio n a t
th a t tim e?
A. Yes.
Q. W ill you te ll H is H onor and th e se gen tlem en
w h at th a t conversa tion w as?
A. Well, th e re w as one officer in the group whoi
did m ost or all of th e ta lk ing and he sa id we would
h av e to get up and m ove over in to the Colored W ait
ing Room.
47
Q. D id you m ak e a rep ly a t th a t tim e?
A. I told h im we h ad ticke ts fo r W isconsin and a c
cording to th e sign out there th a t is w here we w ere
suppose to sit.
Q. D id the officer have any fu r th e r s ta tem en ts to
m ak e a t th a t tim e?
A. H e sa id he d idn’t c a re any th ing about the signs,
th a t he rep resen ted the City of B irm in g h am and we
w ere in the C ity of B irm ingham and we would have
to m ove or be a rre s ted .
Q. And w h at w as your rep ly to th a t?
A. N othing to tha t.
Q. A nd w h a t tra n sp ire d a fte r th a t conversation?
A. Well, the officer said , he asked if I w as try in g
to c re a te som eth ing or s ta r t a case or som eth ing and
he sa id if I w ere, he would a r re s t me for d iso rderly
conduct ra th e r th a n any th ing connected w ith segrega-f
tion or anyth ing .
Q. And did you la te r leave the T erm in a l Station?
A. W ell, we w ere p laced under a r re s t and ordered
out.
Q. You w ere p laced under a r re s t and ordered out,
and w here w ere you taken , M r. B aldw in a f te r being
p laced under a rre s t?
A. Well, a t f irs t we w ere taken out on the side
w alk for a few m inutes.
Q. Did any th ing tra n sp ire out th e re while you w ere
on the sidew alk?
A. W ell, w e stayed th e re m aybe five m inu tes and
th en th is officer said, “ Boy, I w ill give you one m ore
chance to m ake up your m ind to go either in the
Colored W aiting Room there or else go to ja i l .”
Q. Did you rep ly?
48
A. I told him I d idn ’t h av e any rig h t to m ak e up
m y m ind, I w as under a r re s t and I d id n ’t h av e any
choice in th e m a tte r.
Q. And then w h at happened?
A. They pu t us in a ca r.
Q. And w here w ere you tak en ?
A. To th e City Hall.
Q. You w ere tak en to the City H all?
A. Yes.
Q. W ere you put in th e cell block in the City H all
a t th a t tim e?
A. No, w e w ere pu t in a little room down there .
Q. Did you have any fu r th e r conversa tion w ith the
officers w hile being in th is room in th e C ity H all?
A. T here w as one officer who s tay ed in the room
w ith us.
Q. Did you have any conversa tion w ith h im th e re?
A. He asked m e if I belonged to the NAACP.
Q. F o r the record , did you rep ly?
M r. B reckenridge:
We ob ject to th e conversation a fte r the a rre s t, as
ir re le v a n t and incom peten t, h as no b ea rin g and calls
for h ea rsay .
The Court:
I overru le it.
M r. B reckenridge:
We except.
Q. Did you rep ly?
A. I to ld h im I k ep t very busy and d idn ’t have
tim e to attend any m eetin g s of any kind.
49
Q. Then how long did you rem a in a t the City H all?
A. M aybe 15 o r 20 m inutes.
Q. And th en w ere you taken to some o ther p lace?
A. We w ere pu t in the w agon and c a rr ie d over to
the C ity Ja il .
Q. By “w e” do you m ean you and M rs. B aldw in?
A. My wife and I.
Q. T hen w hat happened upon your a r r iv a l a t the
City Ja il?
A. W ell, w e w ere booked on a d isorderly conduct
ch a rg e and p u t in a cell.
Q.. A nd th e n w h a t happened?
A. A fter we w ere in the cell?
Q. Yes.
A. W ell, I s tay ed in th is p a r tic u la r cell m aybe 45
m inutes and th en w as called down again .
Q. Did you tak e any affirm ativ e action of any kind
w hile being p laced there , w hile in the ja il?
A. I called m y a tto rney before I w as c a rr ie d off.
Q. Now, le t m e ask you if you w ere s ta rtin g a
case a t the tim e you appea red in th e W aiting Room ?
A. I d idn ’t know th a t I w as a t the tim e.
Q. W hat w as your avow ed purpose?
M r. B reckenridge:
We ob ject to th a t, calls for a conclusion.
The Court:
I su sta in the objection.
M r. Newton:
All righ t, don’t answ er tha t.
Q. W ere you la te r tried on th is count of d iso rderly
conduct?
50
A. We w ere tried in the City C ourt on a charg e
of d iso rderly conduct.
Q. Do you know w h a t h ap pened in th a t tr ia l?
A. The case w as d ism issed .
Q. M r. B aldw in, do you re c a ll th e tr ia l before the
la te H onorable Ju d g e R alph P a rk e r on the 25th of
F e b ru a ry 1957?
A. Yes.
Q. W ere you tried fo r d iso rd erly conduct?
A. Yes.
Q. I show you here a reco rd of th a t tr ia l. W ill you
re a d th a t p a r t of th is and does th a t re p re se n t w hat
w as sa id in C ourt a t th a t tim e?
M r. B recken ridge:
We ob jec t to th e read ing from a docum ent until we
h av e h ad a chance to exam ine it.
The Court:
You m igh t le t h im exam ine it,
M r. Newton:
All righ t, sir.
Q. Now, I am going to read fro m th is reco rd and
I would like to a sk you if you re m e m b e r th ese s ta te
m e n ts being m ad e in Court.
M r. R ountree:
Y our H onor, we would like to in terpose an objec-j
tion to th a t as h ea rsay , irre lev an t, im m a te ria l. He is
testify ing he w as tr ie d in R eco rd e r’s Court and the
case w as d ism issed acco rd ing to. h is testim ony .
51
The Court:
Well, I w ill have to see it before I ru le on it.
Mr. Newton:
Y our H onor, we feel th a t th is is an im portan t; p a r t
of th e reco rd in th is m a tte r .
The Court:
I don’t th ink it is adm issib le . I t m ig h t be identified
for the record .
(P la in tiff’s E x h ib it 4 m arked for iden tification only.)
Mr. R ountree:
W hat w as Y our H onor’s ruling?
The Court:
I don’t th ink any of i t is adm issible in th is hearing .
I t m ig h t be identified as a P la in tiff’s exh ib it for iden
tification, bu t no p a r t of i t is adm itted.
M r. A dam s:
Judge, I would like to m ake th is statem ent. The
purpose for w hich w e would like to in troduce th is evi
dence is to show th a t the defendan t w as not guilty
of any d iso rderly conduct and th a t the only reason
w hy he w as a r re s te d w as fo r sitting in a so-called
w hite w aiting room.
The Court:
W ell, I don’t th in k it shows th a t. I don’t th ink it
sheds any ligh t on the in ten t w ith w hich the a r re s t
w as m ade. I u n d ers tan d the purpose of the offer and
I su sta in th e objection.
52
M r. A dam s:
We except.
Q. Do you know M r. B alw in of any d iso rderly con-'
d uct th a t you w ere gu ilty of in the B irm im g h am T er
m in a l S tation on D ecem ber 22, 1956?
A. No.
M r. Rountree:
We object as calling for a conclusion.
The Court:
I overru le th a t objection.
Q. P le a se answ er.
A. No.
Q. M r. B aldw in, w ere you loud and boisterious on
th is occasion in the B irm in g h am T erm in a l S tation?
A. No.
Q. Did you re s is t a r re s t on the p a r t of the B ir
m ingham police officers on th is occasion?
A. No.
M r. Newton:
I believe th a t is all. You m ay exam ine him .
M r. R ountree:
Do w e exam ine in order?
The Court:
I t m akes no d ifference. You can ag ree on it y o u r
selves.
53
Cross E xam ination .
(By M r. R re c k e n rid g e ):
Q. You w ere taken to th e City H all and k ep t there
15 to 20 m inutes. I believe you testified you called
your a tto rney . Did you call your a tto rn ey from the
C ity H all?
A. F ro m the City Ja il.
Q. A nd a fte r rem ain in g in th e City H all 15 to 20
m inu tes you w ere c a rr ie d to the City Ja il?
A. Yes.
Q. A bout w hat tim e of d ay w as tha t?
A. Oh, m ay b e seven o’clock, ten-m inutes-to-seven
in th e m orning .
Q. W hen you got to the City J a i l did your a tto rney
com e to th e ja il in response to th a t call?
A. L a te r on he did.
Q. About w h a t tim e w as th a t?
A. Oh, m aybe it w as qu arte r-a fte r-sev en probably .
Q. Did you m ak e bond?
A. Yes.
Q. A bout w h at tim e did you m ake bond?
A. Oh, m ay b e 7:30.
Q,. You m ade bond about 7:30?
A. Yes.
Q. And' you said th a t th e re w as a t r ia l in R ecord
e r ’s Court, I m ean you w ere found not gu ilty in the
R eco rd e r’s Court. T hat is th e R eco rder’s C ourt of the
City of B irm ingham , is th a t co rrec t?
A. Yes.
(B y M r. M adison):
Q. Did you have any conversation w ith anybody
w ho w as try in g to get you to go from the W aiting
54
Room in w hich you w ere th en w aiting fo r tra n sp o rt
ta tio n to an o th er room other th a n the police officer?
A. No, sir.
Q. A re you in th e fu rn itu re business?
A. Yes.
Q. Who is in th a t fu rn itu re business w ith you?
A. My wife.
Q. You and your w ife?
A. Yes.
Q. A re you a p a r tn e rsh ip ?
M r. Newton:
I object to th a t. I th ink it is irre lev an t and im m a
te ria l.
The Court:
I su sta in th e objection.
Mr. M adison:
Your H onor, th e purpose of th a t w as th is. I don’t
know w hether it is m a te r ia l or not. The check, as I
u n d e rs ta n d it, is from B aldw in & B aldw in to the ag en
cy th a t sold th e tic k e t and I w an t to know w hether he
bought th e tic k e t or w hether th e f irm bought it.
M r. A dam s:
He h as a lread y answ ered it.
The Court:
I th in k it w ould be im m ateria l. I su sta in the object
tion.
Q. A fter your a r re s t did you th e re a f te r u se th e tic k
e t la te r to go to M ilw aukee th e re a f te r , you and your
w ife?
A. Not th a t ticke t.
55
Q. Did you get an o th er tick e t to go to M ilw aukee?
A. On ano ther ra ilro ad we did.
Q. On another ra ilroad?
A. Yes.
Q. How long a fte r tha t?
A. On th e day a f te r the h earin g in the City Court,
w h a tev e r day th a t w as.
Q. You left the n ex t day a f te r th a t?
A. P ossib ly the sam e night, on the L&N.
Q. On the L&N?
A. Yes.
Q. Now, I believe you said when th e officers ta lk ed
to you about being in the w aiting room , th a t you
ought to be in the o ther w aiting roorn, th a t you told
th em you w ere in the w aiting room th a t the sign said
you should be in. Is th a t co rrect?
A. Yes.
Q. T hat sign did not m islead you in any w ay, did
it?
A. I beg your pardon?
Q. T hat sign did not m islead you in any w ay. It
said, “ In te rs ta te P a s se n g e rs” and you w ent in th a t
room , is th a t co rrec t?
A. Yes.
M r. M adison:
T hat is all.
M r. Ptountree:
No questions.
The Court:
N ext w itness.
56
M r. Newton:
Call M rs. A lexandria Baldw in.
A LEX A N D RIA BALDW IN, called as a w itness, h av
ing been duly sw orn, te stified as follows:
D irect E xam ination .
(By M r. N ew ton):
Q. M rs. B aldw in, as a p a r ty defendan t in th is m a t
te r, a p a r ty p la in tiff in th is m a tte r , you h e a rd th e
testim ony of your husband?
A. Yes.
Q. Is your testim ony su b stan tia lly the sam e as h is?
A. Yes.
M r. Newton:
Any questions, gentlem en?
The Court:
Any cross-exam ination?
Mr. M adison:
No questions.
The Court:
All rig h t, next w itness.
M r. A dam s:
Ju d g e , we have a deposition w hich is on file here ,
th e deposition of Ju a n ita P itts . The defen d an ts have
been notified of the tak in g of such deposition, being
tak en on the 17th day of O ctober in R ochester, New
57
York, w hich we would like to get into the reco rd a t
th is tim e.
M r. R ountree:
Y our Honor, we have an objection. M ay we be
heard?
The Court:
Y ou offer the deposition.
M r. A dam s:
Yes, sir.
The Court:
Of D r. Ju a n ita P itts .
M r. A dam s:
Y es, sir.
The Court:
A nd th a t deposition has been filed in the C lerk’s
Office.
M r. A dam s:
Yes, sir. We ju s t took it not too long ago.
The Court:
It is on file and there is an objection to the ad m is
sion of the deposition.
Mr. M adison:
Could counsel s ta te in substance w h at is in the dep
osition. I have n ev er seen it in short. W hat is it about?
58
The Court:
L et’s see firs t. T here is an objection to its a d m is
sib ility th a t the City w an ts to. m ake.
M r. B reckenridge:
We w an t to re se rv e objection to po rtions of it and
a t the sam e tim e m ak e objection to th e adm ission as
as whole on the grounds under R ule 30-F it p rovides
th a t the officer tak in g the deposition sha ll certify in
th e deposition th a t the w itness w as duly sw orn by
h im and th e deposition is a tru e reco rd of the te s ti
m ony g iven by the w itness. He sha ll th en secu re ly
sea l the deposition in an envelope indorsed w ith the
title of the action and m a rk it D eposition of, and h e re
in se r t the nam e of the w itness, and p ro m p tly file w ith
th e C ourt in w hich the action is pending or send it by
re g is te re d m a il to th e C lerk thereof for filing.
Subdivision 3 says th a t the ta k e r of a deposition
sha ll give p ro m p t notice of h is filing to the o ther p a r
tie s and we w ould like to su b m it I checked p e rso n
ally F r id a y to de term ine if th e re w as a deposition on
file and w as in fo rm ed th a t th e re w as no deposition
on file in the C le rk ’s Office, and we ob ject to it on
th a t ground and on the add itional ground th a t no
notice of the filing as req u ire d by the ru le h as been
served on the defendant, th e City C om m issioners or
th e ir counsel.
The Court:
H ubert, get m e m y ru les . The c lerk ’s s tam p is on
h e re filed O ctober 27.
M r. Adams:
T h a t is today . Judge, I w ill say this. This deposi
tion ju s t got to us S a tu rd ay of la s t week. It w as taken
59
an O ctober 17 in R ochester, N ew Y ork and so th e re
fore we h ad no opportunity to file it any sooner. T here
is a c e rtif ic a te showing th a t th is is a tru e and co r
re c t, th is is the tru e and correct te stim o n y of Dr.
Ju a n ita P itts . A nd it is certified by the N o tary P u b
lic. And it w as filed by m e. And I th ink th a t is the
custom ary p rocedu re for filing a deposition.
The Court:
Well, I w an t to look a t the ru le. I don’t rem e m b er
w h at i t says.
Mr. R ountree:
Let the reco rd show th a t the defendant, B irm in g
h am T erm in a l C orporation m akes the sam e objection.
M r. M adison:
I h a te to ob ject to som ething I don’t know w h at it
is, bu t I ob ject on g en era l grounds and the grounds
th a t the o ther gentlem en have m entioned and fu rth e r
it h as no ten d en cy w hatsoever to connect the A la
b a m a P ub lic Service C om m ission w ith anyth ing
charged in th e com plaint.
The Court:
W hat ru le w as th a t?
M r. B reckenridge:
R ule 30-F T itle 28 U. S. Code A nnotated Subdivi
sions 1 and 3 of th a t Rule.
The Court:
Now, th e re a re th ree subdivisions to su b -parag raph
F . The m ost im p o rtan t provision I th ink is the ce r
tifica te of the officer. T hat would be n u m b er one and
60
I believe th a t th e ce rtif ic a te a ttach ed to th is deposi
tion conform s to the req u irem en t of subdiv ision 1.
M r. B reckenridge:
Of course not hav ing seen it since it w as on file
we a re not m ak in g th is d irec tly to the ce rtif ic a te . I
re a d th a t portion of the ru le because I fe lt like
I should read it all.
The Court:
I have re a d th e ce rtif ic a te and I th ink it does co n n
ply. A nd then th e second p a r t of th e R ule requ ires
th a t upon p ay m en t of reasonab le ch a rg e s the officer
sha ll fu rn ish —and no p a r ty is ra is in g th e proposition
th a t you paid for a deposition and d idn ’t get it.
M r. B reckenridge:
No, sir, we d id n ’t know th e re w as any on file.
The Court:
There it says th a t the p a rty tak in g the deposition
sha ll give p ro m p t notice of its filing to all o ther p a r
ties and of th a t you com plain?
M r. B reckenridge:
Y es, sir.
The Court:
W ell, I would not su p p ress the deposition on the
b asis of th a t objection. I w ill ad m it it in evidence
and w ill p e rm it p a rtie s in b rie fs to a ss ig n grounds of
ob jection to any of th e questions and m otion to ex
clude any of the answ ers, so th a t I don’t th in k any
body could be p re ju d iced by th a t procedure. I w ill
ad m it the deposition in evidence.
61
M r. Adams:
Ju d g e , I w an ted to s ta te ag a in th a t we ju s t took
th e deposition on the 17th of O ctober and ju s t got
it b ack S a tu rd ay and we had no opportunity to file it.
The Court:
And the reco rd does show, the Court reco rd does
show th a t all a d v e rsa ry p a r tie s had notice of th e tim e
and p lace of the tak ing of th a t deposition. I t shows
tha t.
M r. B recken ridge:
W ill you g ra n t us an exception, Y our H onor?
The C ourt:
Yes, sir.
M r. A dam s:
We w on’t need to read it.
The Court:
No, I don’t w ant it read a t all because I w an t to
g ive the o ther side a chance to object and move to
exclude the answ ers in brief.
Mr. A dam s:
Judge, w e offer the deposition of M rs. Queen E s
ther R oberts of P ine Bluff, A rkansas.
M r. Breckenridge:
Judge, did we understand th e Court on the previous
deposition to say we in b rief m ay ob ject to any p a r t
of i t and not just' on the grounds we h ave stated?
62
The Court:
Oh, yes.
Mr. A dam s:
And in connection w ith th a t deposition, Your Honor,
we expected her to be p resen t h ere fo r the tria l, and
I have a te leg ram show ing th a t she could not come
because of physical condition, and fo r th a t reason
that deposition is la te being filed and no notice w as
given of its filing, the reason being th a t the w itness
w as expected to be here to testify in person. A nd we
w ould like to offer these te leg ram s in support of our
tardiness in notifying the defendants of its filing.
Mr. B reckenridge:
We w ould like to object to th a t on the sam e ground
and the add itio n al ground th a t deposition w as sup
posed to be ta k e n on th e 25th day of A ugust 1959, and
filed on th is d a te and it is not com pliance w ith the
ru le on filing nor w ith the ru le requ iring notice to the
ad v ersa ry p a rty .
The C ourt:
This is som ew hat d ifferen t from th e other.
M r. A dam s:
I w ould like t'o offer these te legram s.
The Court:
All righ t.
The Clerk:
P la in tiff’s exhib its 5A and B.
63
(P la in tiff’s E xh ib its 5A and B m arked for identifi
cation .)
M r. B reekenridge:
If th e Court p leases, w ithout belaboring the point,
I would like to call atten tion to the ru le here w ithout
ob jecting , raising the question, w ith respect to ce rti
fication which Y our Honor has said is a ll right, bu t
under Rule 30-F 1, it is req u ired th a t the officer who
takes the deposition file it ra th e r th a n the party .
The C ourt:
I un d ers tan d th a t.
M r. B reekenridge:
I ju s t w an ted to m ak e th a t clear.
The C ourt:
I have a ssu m ed th a t it has com e d irec tly to the
Court.
Mr. B reekenridge:
As I understand it, the p lain tiffs are filing this to
day and it is not being filed by the officer who took
th e deposition.
Mr. M adison:
T hat is m y understand ing , too, th a t the a tto rn ey s
representing the p la in tiffs filed it ra th e r th a n the of
ficer tak in g the deposition.
The C ourt:
Well obviously—
64
Mr. A dam s:
Judge, I would assume th a t the officer could file
in person or by agent.
The C ourt:
I have never know n th a t to happen. I t a lw ays
com es to the Court. The R ule req u ire s th a t. The of
ficer who ta k e s th e deposition shall then securely seal
the deposition in an envelope indorsed w ith the title
of the action and m arked D eposition of—here insert
the nam e of the w itness—and shall prom ptly file it
w ith the Court in which th e action is pending, or send
it by reg iste red m ail to the c le rk thereof for filing.
Now am I to u nders tand th a t neither of these deposi
tions w as filed by the officer who took it and neither
w as sent in an envelope add ressed to the C lerk of the
Court?
Mr. A dam s:
Judge, not by the officer who did it, bu t it w as
filed by his agent.
The Court:
Well I su sta in th e objection to both depositions w ith
out going fu rth er.
M r. Adams:
Judge, we have a w itness who is from the B irm
ingham News, Mr. F red Taylor, who called m e yes
terday and sa id th a t you had sa id tha t he could be on
call.
The C ourt:
I told him to call you and tell you it w as a ll r ig h t
w ith me if it w as all r ig h t w ith you for him to be on
call.
65
M r. A dam s:
T h a t is not w h at he told me.
The C ourt:
He is not here now ?
Mr. A dam s:
I don’t th ink he is.
The Court:
Well, you w an t to use him before you rest.
Mr. Adam s:
Yes, sir.
The C o u rt:
L e t’s h av e him here a t nine o ’clock in the m orning.
Now do you know how to call him?
M r. A dam s :
Yes, sir.
The C o u rt:
Tell him to be here a t nine o’clock in the morning.
Mr. Adams:
I would like to call Mr. Jack Owens to the stand
and to cross-exam ine him under Rule 43-B, I believe
it is, w hich provides tha t a hostile w itness m ight be
exam ined on cross-exam ination.
The Court:
You have a rig h t to.
68
M r. M adison:
Is th a t exam ination d irect?
The C ourt:
No, i t is a ru le 43 exam ination of an adverse p arty ,
and your exam ination w ould be in the n a tu re of a di
re c t exasination if it goes beyond the scope of th is
exam ination . In o ther w ords, you don’t h av e to pu t
him on as your w itness now, bu t they have a rig h t
to ca ll him as an adverse witness and cross-exam ine
him .
C. C. (JA CK ) OW ENS, ca lled as a w itness, having
ben duly sw orn, testified as follows:
Cross E xam ination .
(By M r. A d am s):
Q. You a re Mr. C. C. (Jack) Owens?
A. T hat is correct.
Q. W hat is your position, sir?
A. P re s id e n t of the A labam a P ub lic Service Com
m ission.
Q. M r. Owens, I w ould like to show you this sign
w hich appears over the W aiting Room as has been
previously identified here in th is Court a t the B irm
ingham Term inal Station. W as th a t sign made and
constructed per your o rder, s ir?
A. The o rder speaks for itself. I w ouldn’t say tha t
th is sign s tr ic tly complies w ith the order. I t m a y or
m ay not, bu t the o rder speaks for itself.
Q. Sir, did you as P residen t of the A labam a P ub lic
Service Cm m ission, d irect th a t signs be p laced over
ra ilro ad and bus stations w ith tw o se p a ra te and dis-
b'7
tinc t w aiting rooms one saying, “In te rs ta te and W hite
P assengers ,” and another say ing “In te rs ta te and
Colored P asse n g e rs .”
A. G enerally speaking, th a t would be correct. How
ever, I w ill say again, the order itself w hich I p re
sum e th a t you have a copy of w ill speak for itself.
Q. Mr. Owens, in our la st election in the S ta te of
A labam a you w ere a candidate for G overnor, is tha t
tru e , sir?
A. T hat is co rrect.
Q. On Jan u ary 18, 1958, did you m ake a speech a t
Crossville, A labam a, s ir?
A. I couldn’t answ er tha t.
Q. In your kick-off cam paign, sir, did you make
the following s ta tem en t, “Today—
Mr. M adison:
Now we object to any statem ent m ade in his k ick
off cam paign as Governor. I understand he w as an
individual, a candidate fo r G overnor and running for
office and I don’t see how It can be m ateria l.
M r. Adams:
Y our Honor, we feel th a t it is m a te ria l b ecause the
statem ent allegedly m ade by th e witness, and he w as
at th a t tim e, and still is P residen t of 'the A labam a
Public Service Comm ission, and th e statem ent a lleg
edly m ade by th a t w itness on th a t occasion speaks
d irec tly to the issue at hand here as to segregation
in the w aiting rooms.
The C ourt:
Well, go ahead and get it in the record and then I
will reserve m y ruling.
68
Q. S ir did you m ake the s ta tem en t tha t, “Today
our tra in s , buses, w aiting room s and schools a re still
seg reg a ted . That is the w ay you w an t i t and th a t is
the w ay I w an t it and that is the w ay it is going to
s ta y .”
A. T hat cam p a ig n w as som e y e a rs ago or m ore.
I couldn’t know w hich speech would be considered
my kickoff speech. I m ay or m ay not have m ade the
s tatem ent. However, I w ould say th a t I did m ake
sta tem en ts along the line of m ain tain ing segregation
in the South fo r the good of a ll people, w hite and
colored.
Q. Do you know a M r. F re d Taylor?
A. Yes, I do.
Q. C an you recall, sir, if he w as p resen t a t your
spech a t C rossville , A labam a?
A. Yes, I am p re tty positive th a t he was.
M r. A dam s:
If Your H onor pleases, we offer this as P la in tiff’s
E x h ib it 6.
(P la in tiff’s E x h ib it 6 m a rk e d for identification.)
Mr. M adison:
We object to the in troduction m ay it p lease the
Court. Not of the p ic tu re I th ink it is a v ery good
p ic tu re , b u t th e re s t of the m a tte r is incom petent,
irre lev an t and im m aterial and not b inding on the
Commission, individual u tte ran ces m ade by him, not
m ade in h is official capacity as a m em ber of the
A labam a P ub lic S erv ice Commission. F urtherm ore ,
it is h earsay .
69
Mr. A dam s:
We in tend to connect it up by the w itness Mr. F red
Taylor.
The Court:
I reserve m y ruling.
Mr. B reckenridge;
I w ould like for the record to show we offer an ob
jection on th e sam e grounds.
The C ourt:
The record shows th a t. I reserve m y ruling.
Q. M r. Owens, w h a t order, and if you h ave it be
fore you, did you as a m em ber and P residen t of the
Commission issue regarding the posting of signs in
ra ilro ad w aiting rooms and bus stations?
A. I presum e you would be speaking in term s of
G eneral O rder #T-21,
Q. Yes, s ir. W hat was tha t order?
A. Do you w an t it read?
Q. Y es, sir.
A. Signs for com m on carrie rs w aiting rooms, D oc
ket 14072, the Commission having under considera
tion th e m a tte rs of rules and regula tions governing
carrie rs by ra ilroads and by bus—
The C ourt:
L e t m e in terrup t. Since the R eporter is try ing to
take this, it is hard for him to go as fast as you go.
Do you have a copy?
The W itness:
Yes, sir.
70
The C ourt:
Suppose in s tead of read ing it into the record th a t
the O rder itse lf be offered as an E xhib it.
M r. A dam s:
T hank you, sir, and we w ill offer th a t as P la in tiff’s
E xhib it 7.
(P la in tiff’s E x h ib it 7 m arked for identification .)
The W itness:
Is th a t a ll th e questions th a t you have of m e?
Mr. M adison:
Is it being offered in evidence?
The Court:
I t is being offered a t th is time.
Mr. M adison:
The defendant, the A labam a P ub lic Service Com
m ission and ind iv idual m em bers nam ed object on the
ground th a t th is o rd e r perta ins and can p e rta in only
to in tra s ta te com m erce and th a t this p la in tiff who is
an in te rs ta te passen g er has no rig h t to ra ise any ob
jection.
The C ourt:
I ta k e the objection along w ith the case.
Q. Now, M r. Owens, a t any tim e did you as P re s i
dent and a m em ber of th e A labam a Public Service
Commission issue an O rder dealing d irec tly w ith in
te rs ta te traffic?
71
Mr. M adison:
D ealing w ith w hat?
M r. A dam s:
In tersta te tra ffic?
M r. M adison:
In te rs ta te traffic .
Mr. A dam s:
W ith in te rs ta te passengers who w ere seated in
w aiting rooms in in te rs ta te traffic .
A. I believe the order th a t we have discussed here
from m em ory is the only one I issued. H ow ever, if
you produce another one w ith my signature on it I
w ill attem pt to verify it.
Q. A re you fam ilia r w ith Public Service O rder # T -
2, sir, in 1923?
A. I h av e a copy of it before m e here.
Q. Is th a t o rder still in force, sir, as a m em ber of
the Com m ission, is th a t order still on the books and
in fo rce?
A. I cannot answ er th a t. I would presum e that it
is, bu t I could not m ake a definite statem ent.
M r. A dam s:
Y our Honor, we would like to offer it, s ir, and if
you gentlem en deem it necessary to have it read and
if Mr. Owens can furn ish us w ith a copy, we would
like to offer that.
M r. M adison:
I don’t have any objection, Your Honor, to th a t one.
(P la in tiff’s E x h ib it 8 m arked for identification.)
72
Q. M r. Owens, as fa r as you know, is a ll of the
w aiting room s in the S ta te of A labam a still seg re
gated?
A. I have not used one for tw enty years , b u t ju s t
noticing them from observation I would th ink p rac
tically all of them are.
Q. W hat is your policy, s ir, reg ard in g seg regation
or lack of it in the w aiting room s in the S tate?
Mr. M adison:
We ob jec t to th a t, Your Honor.
The Court:
S usta in the objection.
Mr. R ountree:
Your H onor, m ay I assume th a t so f a r as the
B irm ingham T erm inal Station is concerned all objec
tions m ade by counsel also apply to us.
The C ourt:
E ach defendant can adopt th e objection of the other
defendants and the record w ill show it.
Q. W hat is the policy of the A labam a P ub lic Serv
ice Com m ission as it relates to segregation or the
lack of it in w aiting rooms.
M r. M adison:
We object to th a t.
M r. B reckenridge:
We ob jec t to th a t.
73
M r. R o u n tree :
We object to tha t.
The Court:
I th in k probab ly the objection is good. I suppose
th a t evidence of policy insofar as a public com m is
sion is concerned m u st be found in th e o rders which
it issues, and not in w h at individuals m ight say. That
would be m y judgm en t so I susta in the objection to
th a t.
Q. M r. Owens, w as it the intention of the o rder re
qu iring the signs in tersta te and w hite passengers, was
it the in ten tion of th a t order th a t negroes who w ere in
in te rs ta te tra v e l and o ther w hite p assen g ers should
use the same w aiting room?
M r. Breckenridge:
We ob ject to that.
The C ourt:
I sustain. I t is w hat the order says.
Mr. M adison:
The order speaks for itself.
Mr. A d am s:
We except.
Q. M r. Owens, can in te rs ta te passengers use the
sam e w aiting room s as in te rs ta te and w hite passen
gers in accordance w ith the signs?
74
Mr. B reckenridge:
We object to th a t, calls for a conclusion and the
o rders speaks for them selves.
The Court:
I su sta in the objection.
Mr. Adams:
We except.
Q. If all passengers used one w aiting room, to en
force the orders th a t h ave been in troduced in this
Court, w hat could you do to enforce them ?
Mr. R oun tree:
Now we ob ject to th a t.
The C ourt:
I su s ta in the objection.
M r. A dam s:
We except.
Q. M r. Owens, w hat pow ers do you have to im ple
m en t th a t order?
M r. M adison:
We object to th a t.
Mr. B reckenridge:
We object to th a t.
Mr. R ountree:
We object to tha t.
75
The Court:
I su sta in th a t.
Mr. A dam s:
We except.
The C ourt:
The C ourt takes jud icial notice of th e section of the
Code of A labam a which conferred power.
Mr. Adams :
I believe th a t is all, sir.
The Court:
I w ant to ask one or two questions before you go
to cross-exam ination . And, gentlemen, to any of the
questions w hich I m ay ask you m ay have objections
w ithout assign ing ground and m ay th e re a fte r s ta te
your objection and your grounds fo r th e record if you
w an t to. I ju s t w an t th a t understood. E ith e r side m ay
do th a t.
(By the C ourt):
Q. Mr. Owens, do you know of any w ritten or o ra l
o rders agreed upon by the Commission and communi
cated to carriers requ iring carrie rs 'to enforce the
segregation of p assen g ers who have bought tick e ts in
In te rs ta te Com m erce, I m ean on account of race?
A. Ju d g e , the only o rd ers th a t I have any knowl
edge of a re the ones as of th is moment, th e ones
w hich a re in question here today.
Q. A p art from th a t do you know of any ora l in
structions given to ca rrie rs o r to o ther agents a p a r t
from the w ritten orders of the Com m ission?
A. No, sir.
76
Q. Has the Com m ission com m unicated d irec tly
w ith the, w ith any of the m unicipalities o r th e law en
forcem ent agencies of any of th e m unicipalities u rg
ing upon them th e enforcem ent of local ord inances?
A. I t has not.
Q. To enforce seg reg a tio n in w aiting rooms as to
in tersta te passengers on account of race ?
A. N ot to my knowledge.
The C ourt:
T hat is all I w an t to ask.
Mr. M adison:
I have no questions.
M r. B reckenridge:
No questions.
Mr. R oun tree:
No questions fo r B irm ingham T erm inal.
The Court:
All righ t. N ext w itness.
Mr. Madison:
Does Y our H onor know of any reason why Mr.
Owens m ig h t no t be excused now?
The C ourt:
If counsel for the p la in tiffs agree.
Mr. A dam s:
The only p rob lem we have, and I don’t suppose i t
w ill be necessary for h im to stay is th e connecting
77
up w ith Mr, Taylor who w ill be here a t n ine tom or
row, bu t I don’t see any reason w hy we w ill need
him.
The C ourt:
All righ t, he m ay be excused. All righ t, nex t w it
ness.
IVA G. M ICHAEL, called as a witness, hav ing been
duly sw orn, testified as follows:
D irect Exam ination.
(By M r. A dam s):
Q. Will you s ta te your nam e to the Court. P lease
s ta te your nam e to the Court.
A. My nam e is Iv a G. M ichael.
Q. W here do you live?
A. I live in Jackson, M ississippi and I w ork in
F o rt P ierce, F lorida.
Q. W hat is your occupation now?
A. I am L ibrarian for L incoln P a rk Academy High
School.
Q. H ave you ever been in th e B irm ingham Term i
nal S tation here in B irm ingham , A labam a?
A. Yes, I have.
Q. You say you w ork a t F o rt P ierce , F lo rida?
A. Y es, I do.
Q. Is it n ecessary for you to come from , to get to
Jacksonville is it necessary for you to com e through
Birm ingham ?
A. Yes, sir, it is.
Q. Have you been to the, w ere you in the B irm
ingham T erm in a l S tation on December 20, 1958?
78
A. Yes, I w as. I w as in the B irm ingham T erm inal
S ta tion on th a t date.
Q. W hen you w ere in th a t S tation can you de
sc rib e or tell to th e C ourt ju s t w h a t happened to you
in the s tation?
A. You m ean D ecem ber 20?
Q. D ecem ber 20.
The Court:
W hat y e a r w as th a t?
Mr. A dam s:
1958.
A. On D ecem ber 20, 1958 I w as travelling from
F o rt P ierce , F lo rid a to Jackson , M ississippi by w ay
of tra in . And of course n a tu ra lly I change in Jackson
ville. I have th ree changes to m ake. I change in
Jack so n v ille , I change in B irm ingham and then
change in M erid ian , M ississippi and then go on into
Jackson, M ississippi. W hen I go t to B irm ingham I
went in the w hite w aiting room . In o ther w ords, on
my w ay here I rode in an in teg ra ted coach all ‘the
w ay from F o rt P ierce to Jacksonv ille . Well, w hen I
got in to Jacksonville I sa t in an in te g ra te d s ta tio n
and w hen I got out of the s ta tio n I rode in teg ra te d on
into B irm ingham , and w hen I got to B irm ingham n a t
urally I followed the crow d. We a ll cam e to the
B irm ingham T erm in a l S ta tion and w ent inside th e
sta tion and sa t down. And w hile I w as seated th e re
in the B irm ingham T erm inal S ta tion the tick e t agent,
I w as w aiting fo r m y tr a in !#41 , and it w as a little
la te. It w as due to leav e B irm ingham around six
o’clock, and w hile I w as sitting th e re w aiting fo r the
79
tra in one of the ticket agen ts tha t sells tickets for
T ra in # 4 1 he began to watch me. And finally he w ent
back and he picked up the telephone and he called
the law . Two policem en hastened to the scene and
they rushed in. They knew exac tly w here I w as s it
ting and everything. W hile I w as seated on the side
th a t I was sitting there w as som e students coming
from Tennesse S tate and they w ere on th e ir w ay
hom e to Shreveport, Louisiana and the policemen
asked m e if w e w ere all together.
Mr. B reck e n rid g e :
I w ould like to object to the n a rra tiv e presenta tion .
The C ourt:
I overrule.
Q. Continue.
A. He asked if we w ere all to ge ther and I told him
no. And he said well you get up and you go into the
o ther w aiting room over there. W ell the o ther w ait
ing room h ad inscribed on there, “Colored In tras ta te
P assengers .” So I told him, I said, “We a re not in
tr a s ta te p assen g ers , we a re in te rs ta te p assen g ers .”
So he says, “I don’t care w hat you a re , as long as
you a re in B irm in g h am you have got to sit in th a t
other w aiting room .” So w e got up and we left and
w ent into the w aiting room tha t was m ark e d for
colored in tra s ta te passengers.
Q. Now do you reca ll the nam es of some of these
people th a t were in the station w ith you?
A. Well now I d idn’t know any of them . A fte r I
left out I did ask the name of some of them .
Q. A re these the nam es? I w ill read them to you.
Mrs. B arnell Scot't, 606 B F arley H om es, Columbus,
80
G eorg ia , M r. Charlie H. Robinson, P ost Office Box
203, Nashville, G eorgia, F re d M etcalf, 105 M adison
A venue, S h reveport L ou isiana , J e r ry L ew is M iller,
1105 M adison Avenue, Shreveport, Louisiana, Mrsi.
Johnny E a r l W are, 172,3 N icholson S tree t, S h reveport,
L ou isiana and Bunion Jacobs, J r . , 1616 A shton S treet,
Shreveport, L ouisiana?
A. Y es, a ll of those w ere in the station and they
w ere all students except the lady from Columbus,
G oergia.
Q. They were students?
A. They w ere students a t T ennessee S ta te and they
w ere on th e ir w ay hom e for the C hristm as ho lidays
ju st as I w as.
Q. Do you reca ll ever seeing a sign over the door
to th e station you w ere s ittin g in?
A. Well, when I f irs t w ent in there w hich w as the
one in ’58 a sign W aiting Room, bu t I no tice since
then th a t they have pu t another sign up th e re and I
th ink the sign reads, it reads som ething like this,
“ In te rs ta te—
Q. Does th a t look like it?
A. Yes, in terstate and w hite in trastate passengers, but
now th a t sign w as not up there. T h a t has been put
up there recen tly .
Q. All righ t. Did you leave and go out of the so-
called W hite W aiting Room?
A. Yes, I le ft a f te r the policem an asked me to
leave.
Q. Did you see ano ther sign on the w aiting room
th a t he re fe rred to you?
A. Yes, the one I w ent into.
Q. Is this it? Is th a t a p ic tu re of th e sign?
A. That is it.
81
Q. W hat does th a t say?
A. I t says colored in tra s ta te passengers w aiting
room.
Q. Did you go into th a t w aiting room ?
A. That is the one I w ent into a f te r they told me,
they said th a t is w here I had to go.
Mr. Adams:
I w ould like to offer these two p ictures as E xhib its
for the plaintiff.
(P la in tiff’s E xh ib it # 8 m arked for identification.)
Q. These police officers th a t you re fe rre d to, did
you recognize them as being police officers of the
City of B irm ingham ?
A. Yes, they were. W hen I was th rough here on
D ecem ber 20th I got the num ber of the police officer
and num ber one w as 142 and the num ber of the other
w as 150. H owever, previously I w as through there on
the 26th and I didn’t get the num ber.
Q. W ere you in the T erm inal S tation on the 26th
of Ju ly 1957?
A. Yes.
Q. W as th a t the year before?
A. I t was Ju ly 27, 1958.
Q. ’58?
A. I m ean Ju ly 26, 1958, I think.
Q. W here did you come from then?
A. Well, I was on my w ay, I was coming from
F o r t P ierce , on m y w ay hom e from m y vaca tion to
Mississippi.
Q. To Jackson , M ississippi?
A. T hat is r ig h t to Jackson , Mississippi.
Q. W hat tra in w as th a t you w ere rid ing?
A. W ell I was on the sam e tra in , in other words,
the C entral of G eorgia and of course n a tu ra lly I
82
changed in B irm ingham every tim e. I a lw ays change
in B irm ingham going to M ississippi.
Q. Did you go into the so-called w hite w aiting
room ?
A. T hat is righ t. I w ent in to the w hite w aiting
room th a t night.
Q. W hat occurred, if anything?
A. Well, the same th ing , the sam e situa tion oc
curred .
Q. This w as before?
A. That w as before the 20th w hen I w en t in the re
I w as trave lling and on Ju ly 26, 1958 from F o rt P ie rce ,
F lorida, to Jackson , M ississippi aga in and I reach ed
B irm ingham around, it w as about 6:25 and again I
w as supposed to g e t T rain # 4 1 out and go on into
M eridian . Well, w hen I w ent into th is p a r tic u la r s ta
tion and I took m y se a t aga in th e tic k e t agent called
the law , called th e policem an, bu t f ir s t he w atched
m e a long tim e.
Q. How do you know th is w as the tick e t agent?
A. I know i t w as the ticket agen t because of the
fa c t he w as selling tick e ts and of course he w as sell
ing tick e ts to the people.
Q. Did you see him selling tick e ts?
A. Yes, I saw him. He w as selling tickets to peo
ple on both sides; they h ad a w indow for the w hites
and one for the colored and he was selling tickets
to the colored and also to the w hites, and then w hen
he saw th a t I had ta k e n m y sea t in there, and of
course there w ere about th ree o ther w hite people in
there.
Q. Ju st a m inute. Did you see him pick up the
telephone?
A. Yes, I did.
83
Q. How close w ere you to him ?
A. Well, I w as seated in a position th a t I could
see him . I could look rig h t s tra igh t th rough the w in
dow of the tic k e t window w here they sell the tickets
to the w hite passengers, you see and then of course
I can do lip reading.
Q. D id you read his lips?
A. Yes, and I knew defin itely th a t he h ad called
th e policem an.
Q. How long did he use the te lephone?
A. A fter he called the policem an w ith in about 8
minutes I would judge the policem an headed for the
sea t and again knew exac tly w here I w as seated and
every th ing and tw o of the policem en cam e in. Well,
one of them sat behind me, he sat r ig h t a t the sea t
behind m e and the o ther policem an came and sa t
beside m e and of course in a v ery insulting m anner
he says, you get up and get out of here because you
don’t belong in here. And I asked him if th a t applied
to everybody th a t w as in the station. He says, “No,
it applies only to you ,” and I asked him on w hat
ground did it apply only to me and he said, “Because
we have another w aiting room for you .” So, I got up
and of course natu ra lly I had m y purse on the seat
beside m e and w hen I s ta r te d to p icking my purse
up he told m e to h u rry up and get out and not to take
all night. So, I s ta rted out and he w as leading m e on
out and he led m e on out into a little isle and I w ent
to the tick e t window and I asked th e m an, the tickec
agent who h ad called the lav/ w hy he called him and
for w hat reason w as I leav ing the station and he to ld
me to go and see the station m aster.
Q. Did you ever find out who th e man w as tha t
w as selling tickets?
84
A. I asked one of th e red caps if he knew th e fel
low’s nam e and he to ld m e th a t h is nam e w as Joe
W ebb, I th in k he said, bu t I am no t sure, b u t th a t
is the nam e he told m e and he th o u g h t th a t w as his
name, Joe Webb.
Q. Did any of the police officers on e ith er of those
two occasions te ll you to m ove over into the colored
w aiting room because th a t w as the law ?
A. Well, he told m e as long as I w as in B irm ing
h am , he sa id as long as I w as in B irm ingham I w as
suppose to s it in th e other w aiting room .
Q. He d idn’t say it was the law ?
A. He ju s t said as long as you a re in B irm ingham
you a re supposed to s tay over there in the colored
w aiting room.
Q. H ave you ever had any fu rth er inciden ts in the
s ta tion since th a t tim e?
A. W hen I cam e th rough A ugust 1st, the police
man, I w ent b ack in the station, the policem an cam e
and asked to see my ticket. So I gave him m y ticket
and he told m e to get up and go around into the
colored w aiting room , th a t w as w here I belonged.
Q. W hat da te w as th a t?
A. A ugust 1st, going b ack to F o r t P ierce.
Q. W hat year?
A. 1959. That w as just recently .
Q. On each of these occasions did you recognize
these as being police officers of the City of B irm ing
ham ?
A. Well, they w ere not th e same officers.
Q. I know, bu t w ere they officers?
A. Oh, yes, they w ere policem en, they w ere in
uniform .
Q. W ere they police officers of the City of B irm
ingham ?
85
A. T hat is righ t.
Q. I say , w ere they police officers of the City of
B irm ingham ?
A. Yes, sir, they w ere police officers of the City
of B irm ingham .
M r. A dam s:
T h a t is all.
Cross Exam ination.
(By Mr. B reck e n rid g e ):
Q. Your nam e is Iva Michael?
A. Yes, sir.
Q. I believe you sa id th a t you sa t in the W aiting
R oom a t the T erm inal S tation on th re e occasions, is
th a t correct?
A. T hat is r ig h t, yes, sir.
Q. The la s t one was A ugust 1st, 1959?
A. The firs t tim e?
Q. No, the la s t tim e.
A. The last tim e w as A ugust 1st, 1959.
Q. Now the tim e before tha t?
A. Before th a t time i t w as Ju ly 26, 1958 and De
cem ber 20, 1958.
Q. Now p erta in in g to th e one A ugust 1, 1959, w hat
p a r t of the w aiting room w ere you sitting in?
A. You m ean—I w as in the w hite w aiting room
and there happened to be two aisles and I w as seated
ju s t as you come in the door. I was seated to the
left rig h t in fron t you see where th a t w hite ticket
w indow is. I w as seated on the fron t seat.
Q. Facing the door?
A. Yes, sir.
86
Q. Facing th e door th a t leads out to th e tra in s?
A. T hat is rig h t a f te r you get u p sta irs .
Q. T hat w as on A ugust 1st. Now you said two
police officers came in w hile you w ere s itting there?
A. T hat is right.
Q. A bout w hat tim e?
A. You m ean ab o u t w h a t time those officers cam e
in?
Q. W hat tim e of day?
A. I reached there around as close as I can say
about 6:2,5.
Q. W as th a t a.m ., or p .m .?
A. I beg your pardon?
Q. Six tw enty-five a.m ., or p .m .?
A. Six tw enty-five p.m .
Q. W ere th e re o ther people in the w aiting room
a t th a t tim e?
A. I beg your pardon?
Q. W ere th e re m any other people in the w aiting
room a t th a t tim e?
A. No, it w as not m any. I t was ab o u t th ree or
fou r o ther people.
Q. D id the tw o officers com e in together?
A. In A ugust 1st now.
Q. You a re ta lk ing about A ugust 1st, 1959?
A. It w as only one policem an on A ugust 1st, 1959
Q. Only one?
A. Yes.
Q. D id he h av e a un ifo rm on?
A. Yes, s ir , a blue uniform w ith the cap.
Q. W hat w as h is bad g e num ber?
A. I beg your pardon?
Q. W hat w as his badge num ber?
A. I d idn’t notice his badge num ber.
87
Q. You took the badge num ber on the o ther occa
sions?
A. I go t the badge num ber on D ecem ber 20.
Q. You did not ta k e the badge nu m b er on A ugust
1, 1959?
A. No, sir.
Q. Can you describe the officer, abou t w hat age
would he be.
A. You m ean A ugust 1st?
Q. A ugust 1, 1959.
A. He w as a young fellow and he w as sm all. He
w as not very—he w as m edium height.
Q. You say he was sm all and m edium height?
A. Yes.
Q. Do you have any idea about his age?
A. Well, I would guess, I th ink he w as, he w as
m aybe about in his m idd le th irties.
Q. He asked to see your tick e t a t th a t tim e?
A. Yes, sir, th a t is th e one th a t asked to see m y
ticket.
Q. And you showed him the ticket?
A. Yes, s ir, I gave him the ticket.
Q. W here did your ticket show th a t you were
trave lling to?
A. I don’t know.
Q. W here did you have a ticket to?
A. I h ad a tic k e t to Jackson , M ississippi. I h ad a
round tr ip ticket from F o rt P ierce , F lo rid a to Jack-
son, M ississippi.
Q. And you w ere en route to Jackson , M ississippi?
A. Yes, sir.
Q. Then w hat did you do a fte r the conversation
w ith the officer?
A. I did, he told m e to leave and I got up and
w ent on into the w aiting room. I le ft out when he
88
cam e in and asked m e to le t h im see the ticke t. I
didn’t argue w ith h im a t all and w hen he to ld m e to
leave I left out.
Q. On Ju ly 26, 1958 w h at tim e did you arrive a t
the Station?
A. It w as som etim e p ra c tic a lly th e sam e tim e. I t
is the sam e tra in .
Q. A y e a r before about th e same tim e?
A. Yes, sir.
Q. W here did you s it in the sta tion on th a t o cca
sion?
A. I was, m y righ t-hand side w as seated on the
fron t s e a t on the right-hand side of the station.
Q. W ere you facing w hich direction?
A. I w as facing—
Q. The door th a t comes in from the tra in ?
A. Yes.
Q. How long had you been sittin g there?
A. Now I w as seated there a good w hile because
th a t w as the f irs t tim e I had been in there and th e
ticket agent w atched me sev era l tim es before he
ca lled the law , you see. He called the law around
about I guess th a t w as around about eight som ething
w hen he called the law.
Q. You say a police officer cam e to you then?
A. I beg your pardon.
Q. You say a police officer cam e to w here you
w ere sitting a t th a t time?
A. Yes, sir, they both came.
Q. One or tw o?
A. I t w as two, on the 26th it w as two.
Q. Did you get the ir badge n um ber?
A. No, I didn’t get the badge num ber. T hat w as
the f ir s t time. I didn’t get the badge num ber of those
two.
89
Q. H ave you got any idea as to w hether or not,
a s to the ir age or build?
A. I beg your ardon?
Q. W hat would you say the build w as of the two
officers?
A. I d idn ’t qu ite g e t tha t.
Mr. A dam s:
He said w hat w as the build of the officers, how big?
The W itness:
The one th a t did the ta lk ing he was m edium size
and m edium heigh t bu t he w as younger th a n the one
who s a t behind m e and of course he w as a young
person, the one th a t did the ta lk ing , and the one th a t
s a t behind m e w as a little older.
Q. You say they w ere both below m iddle age?
A. Yes, sir.
Q. A fter your conversation w ith them w hat did
you do then?
A. Well, I left out. W hen he told me I d idn’t a rgue
w ith him when he told m e to leave, I ju s t w ent on
out, bu t I did, a f te r I w ent out I cam e b ack and
ta lked to th e tic k e t agent.
Q. Now on Decem ber 20, 1958 about w hat tim e did
you get in to the Term inal S tation?
A. You m ean Decem ber 20th?
Q. Yes.
A. I t w as the sam e time. H ow ever, th e tra in w as
la te because th a t w as during the C hristm as holiday.
I t m a y have been p re tty close to seven o’clock.
Q. How long had you been seated before the of
fice rs appeared?
A. You a re speak ing of D ecem ber 20?
90
Q. Yes.
A. We w ere seated I guess ju s t about ten m inutes,
because there w ere several of us.
Q. You say you w ere seated , w ere there o thers
besides you there?
A. Yes, s ir, th a t w as the students.
Q. W ere they colored or w hite?
A. I beg your pardon?
Q. W ere they colored or w hite?
A. There w as colored and w hite. T here w ere six
students and an ad u lt from Colum bus, G eorgia and
sev e ra l w hites in th ere , too.
Q. And they ta lk ed to you?
A. T hat is righ t.
Q. And the officers, you say th e re w as two offi
cers?
A. Yes, sir.
Q. W hat w as the badge num bers?
A. One of the badge num bers w as 142 and the
o ther badge w as 150.
Q. 142 and 150?
A. Yes, sir.
Q. You took the badge nu m b ers th a t tipae?
A. That is righ t. I got the badge num bers th a t
time.
Q. Did you w rite them down?
A. Yes, s ir, I w ro te it down.
Q. A t th a t tim e?
A. Yes, sir.
Q. And a fte r your conversation you w ent into the
o ther room ?
A. Yes. T hat is when I told him we w ere not in
tra s ta te passengers but in te rs ta te passengers and it
w as then th a t he to ld us, policem an 150, th a t he d idn’t
ca re w h at we were.
91
Q. You then w ent into the o ther w aiting room?
A. That is righ t.
Q. You w ere no t a rre s te d on any of the tim es?
A. No.
Q. You say you w ere seated in the s ta tio n each
time. How fa r w ere you from the ticke t office?
A. You m ean the ticket window?
Q. Yes.
A. I w as seated on the left-hand side and I w as
rig h t in fro n t of the w indow of the tic k e t office.
Q. B ut you did not get the badge num ber on the
o ther tw o occasions?
A. No, I didn’t g e t th e badge n u m b ers of any of
the o thers excep t those tw o on D ecem ber 20th.
(By M r. M adison):
Q. Do you know C arl B aldw in, the p la in tiff in th is
case and his wife?
A. I beg your pardon?
Q. Do you know C arl B aldw in and his wife, the
p lain tiff in this case?
A. No, sir, I don’t. I don’t know any of the people
in B irm ingham a t all.
Q. Do you know the attorneys h ere who a re rep
resen ting him ?
A. No, I don’t know him . You see w hat happened
a fte r they asked m e had I w ro te Mr. Plem on, the
C ity P a sse n g e r A gent for the station, for the South
ern R ailw ay and to ld h im about it, and I filed a com
p la in t w ith th e In te rs ta te Comm erce Commission and
then D ecem ber 3rd, the In te rs ta te Com m erce Com
m ission—
Q. I didn’t ask you those questions. If they w an t
to know they can ask you.
92
A. I don’t know any of these people.
Q. Tell m e how th e law yers on th is side or the
p la in tiffs in this case knew about you and w h at h a p
pened to you in the T erm in a l S tation?
A. I w ill te ll you, th a t is w h a t I am te lling you.
I w rote the P assenger A gent and then the la st tim e
I w as pu t out of the station I asked someone in the
s ta tio n if they could tell m e the nam e of a law yer
in B irm ingham because I h ad p lanned to file a suit.
Q. Yes.
A. And then they gave m e L aw yer Billingsley and
I told him exactly w h a t happened, and he told me
to w rite him and explain everything and I w ro te him
and explained every th ing ju s t as I h ad explained to
M r. Plem on and the In te rs ta te C om m erce Commis
sion, and he w rote m e b ack and told m e th a t they
had a case sim ilar to m ine already in C ourt and th a t
is how I found out, and he asked if I w ould appear
as a w itness and I agreed w illingly to ap p ea r as a
witness.
Q. Well, in short, I th ink th a t answ ers m y ques
tion. Now, you said you w ere in th e S tation, the
T erm inal S ta tion a t B irm ingham on th ree separate
occasions?
A. Yes.
Q. Two in 1958 and one in 1959?
A. T hat is righ t.
Q. And on each of those occasions police officers,
e ither one o r more.
A. Yes, sir.
Q. Asked you to m ove from one w aiting room to
another?
A. T h a t is righ t, yes, sir.
93
Q. Now did anybody else on any one or m ore of
those occasions a sk you to m ove o th e r th a n the police
officers?
A. Oh, no, sir, nobody else asked m e to move, ju s t
the policem en asked m e to move.
Q. I believe you sa id th a t the tick e t agent was
w atch ing you. Did he w a tch you on each of the o cca
sions?
A. Yes, s ir, on each occasion.
Q. Did you see him w atch ing you?
A. Yes, sir, he cam e and stood in the window.
Q. You w ere kind of w atch ing him, too?
A. Yes, sir, I started w atching him a fte r he
w atched me, I s ta rted to w atching him.
The C ourt:
A ny fu rth e r questions?
(By Mr. R o u n tre e ):
Q. W hen w as the f irs t time you came to B irm ing
h am ?
A. You say when w as the f irs t time I came to
B irm ingham ?
Q. Yes.
A. The f irs t tim e I cam e to B irm ingham th a t was,
you mean th e f irs t time?
Q. When w as the firs t time in your life you w ere
in B irm ingham ?
A. I cam e to B irm ingham on several occasions be
cause I w orked in the S ta te of A labam a six years. I
th ink the firs t tim e I cam e through B irm ingham was
1949.
Q. Did you go into the T erm inal S tation a t th a t
tim e?
94
A. No, I d idn’t.
Q. W hen w as the f irs t tim e you w ere ever in the
B irm ingham T erm inal S ta tion?
A. I t was Ju ly 26, 1958.
Q. T hat w as th e f irs t tim e?
A. T h a t w as th e f ir s t tim e.
Q. Now about w hat tim e of day w as th a t?
A. T h a t w as around 6:2,5. I was com ing from F o rt
P ierce, F lo rida .
Q. Now, you cam e up fro m w here th e tra ins were,
you got off the tra in there, is th a t co rrec t?
A. I got off th e tra in .
Q. Do you re c a ll com ing up som e steps?
A. T hat is righ t.
Q. You w ent into the w aiting room?
A. T h a t is righ t.
Q. The door you w ent th rough w as th e re a sign
over the door?
A. No, the only thing w as w hen I w ent in the room
was w aiting room . I d idn’t see any sign above it. I
didn’t see any sign above it.
Q. Did you look above it?
A. No, I didn’t because I was not th inking any
th in g really , if you w an t to know, to tell th e tru th
about it, I d idn ’t in tend to go in there . You see I
rea lly w ent in there through a m istake.
Q. If you w ill confine your answ ers to w hat I ask
you I w ill app rec ia te it and w ill save time. Now le t
me ask you again. You did not see a sign above the
door?
A. No, I d idn ’t. I saw w aiting room.
Q. W here w as th a t?
A. T hat was on the door in gold letters.
Q. W as th is a big door you w ent through?
95
A. I t w as a w aiting room door.
Q. W as it b igger th an th a t door?
A. I t was a w aitin g room door.
Q. I am ju st ask ing w as it la rg e r than th a t door?
A. W ell, I w as not observing the size so m uch of
the door. All I know it w as a door to th e station.
Q. In other words, you don’t know how big i t w as?
A. All I know it w as a door.
Q. If you don’t know ju s t answ er th a t. Now when
you w ent in w ere you w ith anybody?
A. I came up w ith several other people bu t they
w ere all w hite. They w ere not any o ther colored.
Q. W hen you w alked th rough the door, the size of
which you don’t rem em ber, w hat w as the f irs t thing
you saw ?
A. The f irs t thing I saw?
Q. The firs t th ing you did now.
A. I d idn’t do anything bu t w alked in and s a t
down. T h a t is all I did.
Q. You w alked th rough the door and tu rned to
your righ t, is th a t co rrect?
A. I d idn’t tu rn to m y righ t. You see com ing up
from the steps I d idn ’t have to tu rn . I ju s t kep t
s tra ig h t on.
Q. A fter you w ent into the w aiting room you
kept going s tra ig h t how fa r?
A. I d id n ’t h av e fa r to go. The seats w ere a l
re a d y there. I ju st cam e in and sa t down on the f irs t
seat I got to.
Q. I believe you testified th a t you w ere fac ing the
door you cam e in as you s a t—
A. I said it w as facing the tick e t window.
Q. Now as you came through the door now we
have you in there , w here you kept going s tra ig h t until
96
you got to a point to s it down, did you have to tu rn
a little to the r ig h t or to the left or ru n rig h t into a
seat?
A. You have two aisles of the seats and all of th e
seats face th e ticket window.
Q. All of the sea ts?
A. In o ther w ords, they a re ju s t like the seats a re
a rra n g e d here. T here a re tw o aisles of th e m and from
this one you look r ig h t in the tick e t window.
Q. The only question I am try in g to ask you, you
w ent in the door, you w ent s tra ig h t and you took a
seat. A t som etim e e ither you ra n into a sea t or had
to tu rn a little to the left or to th e righ t.
Mr. A dam s:
Ju d g e , I would like to object to the language th a t
you run into a seat.
The Court:
I overru le it. The testim ony of the w itness is not
clear to m e.
The W itness:
W hen I w ent in there I w as not th inking. All I
w anted to do w as to go in and se t down and I w ent
in and sat down. I didn’t th ink in te rm s of a ll of the
seats and how I w as tu rn ing and w hat angle and di
rection I w as going. I cam e in and sa t down b ecause
th a t is a ll I w anted to do.
Q. In other w ords, you are say ing you do no t re
m em ber a f te r you cam e in the door w hether you
tu rn ed to th e le ft or to the righ t?
A. No, no. T hat is not it. W hen I cam e in the door,
in o ther w ords, the door to the w aiting room, afte r
97
com ing up from the tra in station, the stations w ere
already th e re and I cam e r ig h t s tra ig h t to th e firs t
sea t I got to and sa t down.
M r. R oun tree:
If Your Honor w ill excuse me a m inute I w ill have
to do th is w ith a d iag ram .
The C ourt:
We w ill take a ten -m inu te recess and you can pu t
your d ia g ra m on th e board .
(Short recess.)
Q. L et me ask you th is first. E ac h tim e th a t you
have been here you testified to being here in the wait-
ing room three tim es, th a t you come th rough th e
sam e door w hen you cam e from the tra in s .
A. No, I have not alw ays come through th e sam e
door and usually when I come in I come up from
the tra in steps, from th e tra in station and come rig h t
in there. Now the tim es I have been com ing through
there , the f irs t tim e I w ent in the w hite w aiting room
w as Ju ly 26th.
Q. 1958?
A. Yes, sir.
Q. And the next tim e w as D ecem ber 20, 1958?
A. You a re speaking about the time I w ent in the
station?
Q. Yes.
A. E ac h tim e I w ent in the T erm inal S ta tion I
w ent th rough the sam e door.
Q. This is a very unartistic rep resen ta tio n of the
T erm in a l W aiting Room . L et me ask you th is. W hen
98
you cam e in th e door, to you r b es t judgm ent, w ere
you so rt of in th e center of the w aiting room?
A. Now I th ink I can explain th a t if you w ill le t
m e say th is door for exam ple, I cam e up from the
tra in s ta tio n up the steps and come th rough the door
and they have seats on this side and th a t side. I w ent
and sat on the front seat.
Q. All I w an t to know, do you have th e m ental
im pression you so rt of cam e in, you w ere so rt of in
the m iddle of th e room or do you recall?
A. Let me see now. Well I w as sitting , I rea lly
sa t at the end of th a t p a r tic u la r side.
Q. A ssum ing th is is the door you came in?
A. T hat is righ t.
Q. You testified you cam e in and took the f ir s t
s e a t you cam e to, is th a t r ig h t? As you cam e in from
th e tra in s , you didn’t ru n into a seat fac ing th is w ay,
and w hen I say ran into, th a t w as not the seat you
took, was it?
A. I t w as not the sea t I took?
Q. W as there a seat like th is facing?
A. I took the seat—
Q. I ju s t asked you do you rem em ber w hether
th e re w as a sea t th e re or do you re m e m b e r w hether
th e re w as a co rrido r?
A. W hat I rem em ber w hen I took the seat I w as
looking rig h t in the w hite ticket window and it w as
the fron t seat. I know I w as looking rig h t in the w in
dow.
Q. Let me ask you this one m ore time. Do you
rem em ber w hen you cam e in th e door w ere you im
m ed iate ly fac in g a seat?
A. Oh, no, no, I w as not fac ing a seat, no, no, I
w as not facing a seat.
99
Q. Now do you re c a ll w hether th e re w ere seats
here and here, you are coming in facing th is way.
Do you rem em ber w hether th e re w ere seats to the
rig h t and to the left.
A. T hat is righ t, on each side. I know th e re is
tw o row s of sea ts in there.
Q. W hat is th a t?
A. I know there w ere two row s of seats.
Q. L e t’s go back to the question I asked before.
Did you tu rn to th e left or did you tu rn to the rig h t?
A. Well, I don’t rem em ber doing any tu rn in g
w hen I cam e in the door. You see the seats w hen you
come in, those sea ts are rig h t there. W hen you get
in the door if I understand it those seats w ere a lread y
th e re . I don’t rem em ber doing any tu rn in g rig h t o r
le ft tu rn ing a t all. I came in and took a seat.
Q. As fa r as you rem em ber you cam e in the door
and w alked s tra ig h t into a seat and s a t down?
A. R igh t in front of the tick e t window.
Q. About how f a r away would you say you w ere?
A. I guess it w as m aybe about the d istance from
here to there.
M r. R ountree:
Let the record show she is pointing to a d istance
w hich as I pace it off is th ree paces of approx im ately
th ree y a rd s each, a to ta l d istance of approx im ate ly
n ine feet.
The Court:
You m ean th ree paces of th ree feet each.
M r. Adams:
Judge, I object to tha t. I don’t th ink th a t is w h a t
she said the distance w as.
100
Q. W ell about how fa r w as it th a t you w ere from
the ticket window?
A. Well, I w as not much fu rth e r th a n from th is
desk to th a t wall.
Q. Look a t it fro m me.
A. I t w as ju st about the d istance from the w all
to th e desk. In o ther w ords, I w as I guess the dis
tance to w here th e b lackboard is and I am seated
here, bu t it m ay not have been th a t d istance.
Q. Would you say approxim ately the d istance
from you to th e b lackboard?
A. T h a t is righ t.
Mr. R ountree:
Let the reco rd show I have paced off four paces of
ap p ro x im ate ly th ree feet each.
Q. To reach th a t point you didn’t have to tu rn to
th e rig h t or left?
A. I rea lly don’t rem em ber because I w as not
th ink ing in th a t p a rticu la r term .
Q. W ere there any sea ts or benches betw een you
and the tick e t w indow ?
A. No, no, I w as seated on the fro n t seat.
Q. You w ere righ t nex t to the tick e t w indow ?
A. T hat is righ t, I w as rig h t next to the ticket
window.
Q. Now you testified and I am re fe rrin g to the
first tim e you w ere in the w aiting room on Ju ly 26,
1858, th a t you got there about 6:25 and you testified
you saw the tick e t ag en t looking a t you.
A. Yes, s ir, he eyed me.
Q. Do you recall, le t me ask you th is, you w ere
s itting rig h t next to the ticket window, how m any
tic k e t w indow s a re there?
101
A. T here w ere two. I m ean I saw two.
Q. Both facing you?
A. No, no. You have to go out a little a isle before
you get to the colored ticke t window. T here is a little
hallw ay rig h t now tha t is w here I h ad to tu rn the
corner.
Q. I am ta lk ing about before you w ent anyw here
except to your seat. You w ere sitting here. How m any,
w ere there two tic k e t w indow s here? Do you recall?
A. I beg your pardon.
Q. W ere th e re two tick e t w indows or ju s t one?
A. Oh, yes, the re is definitely two.
Q. And around the aisle there is another tick e t
window like th is, is th a t rig h t?
A. Yes, w here the colored people w ere standing,
there w as a line of colored people s tand ing there.
Q. T hey w ere all in the sam e room?
A. No, they w ere not. In o ther w ords, th e re w as
a little hallw ay, a little kind of L and they w ere stand
ing in the L and it is no t d irectly in the w hite w aiting
room, bu t the w hite tick e t w indow is in the w hite
w aiting room .
Q. How m any w hite ticke t w indows w as there?
A. Well I ju s t saw one.
Q. You ju s t saw one?
A. T h a t is righ t.
Q. And then around the co rner in the L was a
colored w indow ?
A. Yes, sir.
Q. D id you see a sign on there saying colored?
A. I beg your pardon.
Q. You referred to a ticket w indow as a colored
ticke t window. How do you know i t w as a colored
tick e t window?
102
A. B ecause th e re w as a line of colored people buy
ing tick e ts and only th e coloreds come r ig h t to it. T h a t
is how I know i t w as a colored window by the tw o
lines.
Q. D id you see a sign say ing colored tick e t w in
dow?
A. No, I d idn’t see a sign.
Q. You say it w as a colored tick e t w indow?
A. T h a t is our p a tte rn in the South.
Mr. R o u n tre e :
I w ish the C ourt w ould instruc t the w itness not to
m ake gratu itous rem arks.
The C ourt:
I th in k we w ould get th ro u g h a lo t qu icker if she
w ould confine her answ ers to th e questions.
Q. T here w as one w ide tick e t window there. How
m any ticket agents was there?
A. It w as m ore th a n one. A bout tw o or three.
Q. D id you see m ore th a n one of them looking a t
you?
A. No, ju s t one.
Q. A bout how long did he look a t you and you look
a t him before the police cam e?
A. I w ould say a good one solid hour.
Q. A good one solid hou r th a t he w atched you?
A. Yes.
Q. How long h ad you been sitting there when you
saw him pick up the ’phone?
A. W ell, I h ad been sitting th e re ju s t about th a t
hour w hen he picked the telephone up.
Q. W hen he picked th e telephone up.
A. R igh t abou t an hour.
103
Q. Did he p ick th e te lephne up before th a t?
A. No, he didn’t.
Q. Nobody back th e re had used the telephone
p rio r to th a t time.
A. I d idn’t notice it.
Q. As he w as ta lk in g on the telephone he was fac
ing you looking out of the window, is th a t rig h t?
A. Yes. I w as looking through the window.
Q. Was th e s tand righ t at the window?
A. I beg your pardon.
Q. W hen he w as ta lk ing on the ’phone you read
lips, don’t you?
A. Yes.
Q. Let m e ask the question again. W here w as he
s tand ing w hen he m ade the call?
A. He w as giving a descrip tion of m e I understood.
Q. T h a t w as not the question I asked you. W ould
you m ind answ ering me. W hat w as he say ing?
A. W here?
Q. W here w as he standing?
A. I noticed tha t he did say—
Q. I didn’t ask you th a t. I asked you w here he
was s tand ing , w here w as he standing when he w as
ta lk ing on the ’phone?
A. He w as s tand ing rig h t w here I could see him .
I could look th rough th e window and see h im s ta n d
ing w ith the telephone in h is hands.
Q. W as he close to the window or back inside?
A. No. He w as not fac ing me. F o r example, his
position w hen he used the telephone w as off to the
righ t.
Q. He w as not fac ing you?
A. No, no, he w as not facing me when he used the
telephone.
104
Q. Tell me the f irs t w ord you heard h im say?
A. The tw o words I understood and I know def
in ite ly he sa id th a t it w as a colored p erson in the
station.
Q. Is tha t the firs t, you h ad been looking a t him
and he looking a t you for an hour and he picked up
th e ’phone, you didn’t h ea r him ask for the police?
A. The th ing about it, w hen he called, w hen he
said, colored, when I saw him use the nam e colored
I began to move back from the window. I d idn’t stay
th e re because I h ad planned to go out. I thought p ro b
ably they w ere looking for somebody, som e convict
in there and I rea lly decided then to go out, to leave
the w aiting room.
Q. You m oved?
A. Y es, I m oved down to th e edge of the seat.
W hen I w as sitting in front of the w indow and he
picked up the ’phone and I saw h im call the nam e
colored, I moved and d idn’t w atch all of the conversa
tion you see.
Q. And the only th ing , would you re p e a t again the
only words you h ea rd him say.
A. I h ea rd h im call the colored, use th e w ord
colored in the station.
Q. You heard the w ord colored and you h e a rd the
w ord station?
A. Yes.
Q. B ut I thought you testified , now we a re ta lk ing
abou t Ju ly 26, 1958, and the police came after th a t,
did they not?
A. Yes, th a t is right.
Q. D id you move?
A. No, you see I had eased on down to th e end of
the sea t and th en I changed m y m ind about going
out. I f ir s t decided to go out and changed m y m ind
105
and decided to stay , because if I had got up and run
they would have figured I was gu ilty or som ething
and I m oved down to the end of th e sea t and stayed
there and I began to observe the window and th a t is
when I saw the policem an com ing.
Q. W hich window did you observe?
A. The one to th e s treet. I was looking d irec tly to
the policem an w hen they came up.
Q. W ere you looking over your back?
A. No, I was not looking over m y back , to my
side, to m y rig h t side.
Q. You saw h im come through?
A. T hat is righ t, I saw them w hen they came up
in the car.
Q. Did they ask you. to m ove into another w aiting
room?
A. I beg your pardon?
Q. Did the police ask you to move into another
w aiting room ?
A. Yes, the policem en or the one th a t asked m e,
he to ld m e to g e t up and go out because I d idn ’t
belong in there.
Q. Did you refuse to do th a t?
A. No, I d idn’t. I asked him did it apply to every
body in the w aiting room and he told me no, it only
applied to me, and I asked him w hy it applied only
to me.
Q. D id you m ove and go in to ano ther w aiting
room. T hat w as m y question.
A. No. W hen the policem an cam e and he sa id—
The C ourt :
J u s t answ er the question.
106
Q. A fter th e po licem an cam e did you m ove out of
th a t w aiting room into another room ?
A. Oh, yes, sir, I did.
Q. All righ t. T hat w as m y only question. Now
a fte r th a t did you have any conversation w ith any
em ployees there a t th e Term inal?
A. Yes, I w ent to the ticke t m an who called the
law.
Q. The m an who called.
A. T hat is righ t.
Q. E x a c tly w h at did you say to him ?
A. I asked him w hy did he have th e policem an to
come and get m e out and on w hat occasion?
Q. W hat did he say?
A. He to ld me to go see the S tationm aster.
Q. Did you go to see h im ?
A. Yes.
Q. W hat w as h is nam e?
A. I d idn ’t ask his nam e. I didn’t get his nam e
a t all.
Q. Is it th e sam e tick e t agen t th a t looks a t you
when you are there, is it alw ays the same m an?
A. Yes, sir.
Q. He is a m an you w ould not fo rget a f te r th a t
experience?
A. I don’t know. Som etim es experience is so un
p leasan t.
Q. B ut you could see th a t he w as the sam e m an
each tim e tha t you have been there?
A. Well, I guess so.
Q. And I believe you testified a red cap to ld you
th a t h is nam e w as Joe Wells, is th a t rig h t? Did you
w rite tha t down?
A. Yes, I w ro te th a t down.
107
Q. Now let me ask you th is. You testified th a t you
re a d lips. W here did you ta k e lip read ing tra in in g ?
A. Oh, I have not tak en lip tra in in g as such. I ju s t
use th a t on m y own to help understand w hen som e
one is ta lk ing to m e. I ju s t use th a t on m y own. I
picked th a t up m yself.
Q. Can you read lips w hen a m an’s b ack is
tu rned?
A. I beg your pardon?
Q. Can you read lips w hen a m an’s back is turned?
A. I w ouldn’t say th a t.
Q. All righ t. Now the next tim e tha t you cam e back
into th e w aiting room a t the T erm inal S tation w as
D ecem ber 20, 1958, w as i t not?
A. Yes, sir.
Q. You w ere going at th a t tim e from Jackson ,
M ississippi, to F o r t P ierce?
A. Yes, s ir, I w as going to Jack so n , M ississippi.
Q. And you w ere w ith som e other people a t th a t
tim e?
A. No, I w as not w ith them . We happened to be
ju s t on the same tra in . I didn’t know any of them.
Q. All r ig h t now. M ay I see E xh ib its 8 and 9
please. Now I believe you testified you cam e through
the sam e door th a t you came th rough the f irs t tim e ,
th a t you came each tim e th rough the sam e door?
A. T h a t is righ t.
Q. This tim e you saw this sign above the door, is
th a t correct?
A. No.
Q. Let the record show I am showing the w itness
P la in tiff’s E x h ib it 9.
A. No, I d idn’t see th is sign. The only tim e I saw
this p a r tic u la r sign up there was la s t n ight.
108
Q. Y ou are testifying th a t on Decem ber 20, 1958
th is sign w as not above the door?
A. If it w as I d idn ’t see it. I d idn’t see it.
Q. L et m e ask you th is. W hen you f irs t cam e—am
I u n d ers tan d in g you now to testify th a t on Decem
ber 20, 1958 you did not see above th e door w hereby
you entered the s ta tio n a sign re ferring to in terstate
passengers or w hite passengers .
A. No, I d idn’t know th e re w as a sign th ere . I
d idn’t notice it, Ju ly 26th or D ecem ber 20.
Q. How abou t in A ugust?
A. Oh, I d idn ’t notice in A ugust. I don’t rem em ber
seeing it at all.
Q. You never saw th a t sign prio r to la s t night, is
th a t righ t?
A. I saw it la s t n igh t for the f irs t tim e.
Q. R efe rrin g now to D ecem ber 20, 1958, when you
came in this time, did you sit down?
A. In the sam e seat, I sa t in the sam e seat.
Q. A nd was it the very sam e ticket agent?
A. That is righ t.
Q. Looking a t you in the very sam e w ay?
A. T hat is righ t.
Q. And he ag a in p icked up the ’phone, is th a t
righ t, you saw him pick up th e ’phone?
A. (No response.)
Q. How long h ad you been sitting th e re w hen he
picked up the ’phone this tim e?
A. Oh, I guess about eigh t m inutes, betw een eight
and ten m inutes.
Q. W here w as he stand ing th is tim e?
A. P ra c tic a lly th e sam e p lace, ufjfihg th e sam e
telephone.
Q. W hat did you h ear him say th is tim e?
109
A. The sam e th ing , the Only th ing abou t it there
w as som e colored in there a t th a t particu lar tim e,
th e re w as about six of us in there you see.
Q. W hat exactly did you h ear him say?
A. I beg your pardon.
Q. W hat exactly did you h ea r him say?
A. He said p ractica lly , he ju s t w ent and ind icated
to the police th a t th e re w ere colored passengers in
there.
Q. I don’t ca re w hat he indicated. I w an t to know
to the best of your recollection the ex ac t w ords he
said?
A. He sa id th a t there w ere colored people in the
s tation .
Q. Did you h ea r him dial the ’phone?
A. I d idn’t try to hear everything bu t the tim e he
used the nam e colored I know ed som ething was go
ing to happen and I didn’t t ry to h ea r anything else.
Q. Now when the police cam e th is tim e did you
again move from the w aiting room into another room?
A. Yes.
Q. Then the la s t tim e you have been in w as A ug
ust 1, 1959?
A. Yes.
Q. You cam e in the sam e door?
A. Yes.
Q. You sa t on the same seat?
A. No, I didn’t sit on the sam e seat. I sat on the
other side in the next aisle.
Q. B ut you still saw him. A t th a t tim e did the
station agen t pick up the ’phone?
A. He w ent back and got the telephone and th a t
w as one tim e when he w ent back and picked the te le
phone up just like he had on the o th e r two occasions
110
and abou t five m inutes a fte r th a t th e policem en cam e
up, followed th e sam e procedure. H ow ever, A ugust
1st, I w as not looking a t h is lips because I w as seated
in another aisle.
Q. Your n am e is Iv a M ichael?
A. Yes, sir.
Q. And you live w here?
A. I live in Jackson , M ississippi.
Q. You live in Jackson , M ississippi?
A. I live in Jackson , M ississippi and w ork in F lo r
ida.
Q. W here is it th a t you w ork in F lo rid a?
A. F o rt P ie rce , F lo rida .
Q. F o rt P ierce. W here a t F o r t P ierce?
A. I am L ib ra rian a t a H igh School in F o r t P ierce .
Q. A re you cu rren tly employed?
A. Yes.
Q. At the H igh School?
A. Yes, sir.
Q. H as any employee of the B irm ingham T erm inal
C om pany ever to ld you to leav e a w aiting room?
A. Now w hat did you say? I d idn’t get th a t.
Q. L et m e reph rase th e question. Has anyone o ther
th a n a police officer to ld you or asked you to leave
a w aiting room th e re ?
A. No, sir, nobody but the police.
M r. Rountree:
Those are all of the questions th a t I have.
Mr. M adison:
Is it p ro p e r fo r m e to ask one or tw o m ore ques
tions?
I l l
The C ourt:
Yes.
(By M r. M ad iso n ):
Q. In m aking your tr ip from F lo rida to Jackson or
re tu rn ing how m any different changes do you have
to m ake?
A. You m ake th ree changes.
Q. W here a re those changes?
A. Jacksonv ille , B irm ingham and M erid ian and
coming and going back I change in M eridian, B irm
ingham and Jacksonville.
Q. On those tr ip s com ing on those tr ip s and going
back , other th a n the sta tion , o ther th a n in B irm ing
ham did you s it in those sta tions w here you could see
the tick e t agen t?
A. Do I do w h at?
Q. Do you sit w here you can see the tick e t agent?
A. You m ean all of the trip s?
Q. A t all o ther s ta tions except the one in B irm in g
ham .
A. No. On two occasions I s a t w here I could see
the ticke t agent.
Mr. M adison:
T hat is all.
R e-D irect E xam ination .
(By Mr. A d a m s ) :
Q. You say you go through Jacksonville, M ississip
pi?
A. Jacksonville, F lorida.
Q. I believe you said th a t you sat in th e genera l
w aiting room in Jacksonville , is th a t righ t?
112
A. Yes, th a t is righ t.
Q. Can you see the tic k e t w indow in th a t sta tion?
A. No, I can ’t see the tick e t window. T here is one
th ing about Jacksonville . W hen you go in th e re any
room you sit in is all r ig h t w ith them.
Q. W here is the tick e t w indow in the Jacksonville
S tation? Do you know?
A. The ticke t window is over in the—in other
w ords, so far as the tick e t agen t I h ave not noticed
the ticket w indow in Jacksonville because I always
had m y tic k e t and never had to go to th e tick e t w in
dow as such. In m ost instances because I ca tch m y
tra in . I get off one tra in onto the o ther one and u su
ally I sit in the f ir s t w aiting room or s tan d and w ait
un til they call th e tra in and I don’t have the type of
experience in Jacksonville th a t I have in B irm ing
ham to see about the ticke t windows. I couldn’t ex
p la in tha t.
Q. You don’t rem em ber w here th e tick e t w indow
is in Jacksonville?
A. You say how m any th a t they have.
Q. You don’t, rem em ber where it is?
A. B ecause I have never gone to the tick e t window
in Jacksonville .
Q. N ever s a t in fron t of th e tick e t window there?
A. No.
Q. You don’t know' w hether it is in the s ta tion
room?
A. I would not a ttem p t to answ er th a t question.
Q. I say you don’t know w hether it is in the s ta
tion room ?
A. I don’t know.
Q. In th e B irm ingham incidence, afte r you saw
the ticket agen t m ak e the telephone call, how soon
113
a fte r would the police officers of the City of B irm
ingham come?
A. I t would be between five and ten m inutes,
around to eight m inutes a t its b es t I would say.
Q. Did you see, did you ac tu a lly look at the lips
of the ticket agent?
A. Oh, yes.
Q. On each of those occasions?
A. T hat is right, on both occasions and you knew
ex ac tly th a t they w ere calling the law.
Q. Did he tu rn his back to you on any occasions?
A. On one occasion you see when he saw m e look
ing s tra ig h t a t him he kind of tu rn ed to keep me from
seeing w hat he was saying.
Q. Had you seen him or heard him say som ething
before he tu rned?
A. That is righ t. And the f irs t tim e you see I w as
looking s tra ig h t a t him and he called up and he rea
lized I w as looking a t h im and he tu rned the ’phone
and w hatnot so I couldn’t see him .
Q. You have a slight hearing defect, is tha t cor
rect?
A. T h a t’s righ t.
Q. Did you learn to read lips a fte r you had the
h earing defect?
A. T hat is righ t.
Q. You a re not a perfec t lip reader?
A. No, I am not.
Q. Do you use tha t to a ss is t you?
A. To assist me in reading.
Mr. A dams:
T hat is all.
(W itness Excused.)
114
The Court:
N ext w itness.
Mr. Adams:
Mr. Caldwell.
J . C. CALDW ELL, having been duly sworn, te s t i
fied as follows:
D irect E xam ination .
(By M r. A dams) :
Q. P lea se s ta te your name, s ir?
A. J . C. Caldwell.
Q. W hat is your official capacity? Do you h av e a
title?
A. Superin tendent, B irm in g h am T erm in a l Compa-1
ny.
Q. W hat a re your duties as Superin tendent of the
B irm ingham Term inal Com pany ?
A. I am in charge of th e operation of the station .
Q. Do you know w hether or no t the T erm in a l Com
pany has sep a ra te w aiting rooms for negroes and
w hites?
A. They h ave two w aiting room s.
Q. Do you have s e p a ra te w aiting room s for n e
groes and whites? T h a t w as m y question?
A. No.
Q. You do not have separa te w aiting room s for
negroes and w hites?
A. N ot designated as such.
Q. W hat is the designation of the w aiting rooms
th a t you have.
115
A. The signs th a t a re up over the door.
Q. W hat do those signs say , sir?
A. One says w aiting room in te rs ta te and w hite
p assengers and th e o ther says co lored ih tra s ta te p as
sengers w aiting room.
Q. As a m atter of fac t, do you find m any negroes
sitting in the w aiting room designated or have you
found in your experience as Superin tendent, m any
colored people sitting in the w aiting room designated
in te rs ta te and w hite passengers w aiting room ?
A. Yes, sir.
Q. You have seen any negroes s itting th e re ?
A. I don’t know w h at you call many. I h ave seen
negroes s ittin g there.
Q. You would say tha t they were, w h a t p roportion
would you say they w ere re la ted to w hites, how m any
as com pared w ith the w hites you find in th e re?
A. Percen tage-w ise?
Q. Yes.
A. T hat would be h ard to judge because some days
there p robab ly would not be any. I w ouldn’t know.
Q. Would you say th a t they w ere few as com pared
w ith th e nu m b er of w hites?
A. I would.
Q. Do you rem em ber the w itness who testified just
a m inu te ago ever ta lk ing to you?
A. No.
Q. Have you h eard of a person being a rre s te d by
the police officers of the City of B irm ingham for sit
ting in the w hite w aiting room?
Mr. Rountree:
I object to w hat he has heard of.
116
The Court:
Sustain th a t.
Q. Do you know w hether or not they have been
a rre s te d by the police o fficers of th e City of B irm in g
ham ?
Mr. R oun tree :
I object to th a t. He can testify to w h a t he saw.
The C ourt:
T hat is righ t.
Mr. Adams:
To w hat he knows.
The C ourt:
To w hat he saw happen.
A. I have never sen any officer come in and a r
rest a colored person for sitting in the w aiting room.
Q. H as it ever been repo rted to you tha t they have
been arrested?
A. I t has.
Q. You said yes?
A. I t has.
Q. W hat disposition did you ta k e w ith referece
to th a t report?
A. I took no official action.
Q. I understand you to say tha t th e re are tw o
w aiting rooms, one labeled w hite and in te rs ta te pas
sengers and one labeled colored and in tra s ta te p a s
sengers, is tha t righ t?
A. T hat is correct.
117
Q. I w ill ask you, Mr. Caldwell, is th a t sta tion
labeled in te rs ta te and w hite passengers provided for
the use of colored in tra s ta te passengers?
A. So f a r as the T erm inal Com pany is concerned
yes.
Q. So far as the T erm in a l C om pany is concerned
are you say ing a colored in tra s ta te passenger could
s it there?
A. They do.
Q. I am asking so fa r as the B irm ingham T erm i
nal is concerned?
A. We do no t m ake any form of seg regation a t all
so fa r as th e Term inal C om pany is concerned.
Q. Who pu t the signs up on the w aiting rooms?
A. The Term inal Company w as ordered to put
them up.
Q. W as o rdered to put them up by who?
A. My superior officer.
Q. Who w as th a t?
A. I don’t rem em ber who w as there a t th e tim e
they w ere p u t up. In other words, they change from
tim e-to-tim e.
Q. Well, now, w h at official position does he have?
A. C hairm an of th e B oard of Control.
Q. Of the B irm ingham T erm in a l Com pany?
A. Of the B irm ingham Term inal Company.
Q. And he d irec ted you to put those signs up?
A. To have them pu t up.
Q. Do you know w hether or not he did so—w ell
le t me ask you this—are you fam iliar w ith the A la
b am a P ub lic Service Com m ission G eneral O rd er T-21?
A. No.
Q. N ever h ea rd of it?
A. N ever h eard of it.
118
Q. Do you know anything ab o u t the A labam a P u b
lic Service Com m ission G eneral O rder #T -2?
A. I do not.
Q. A re you fam ilia r also w ith T itle 48 Section 186
of th e Code of A labam a?
A. No.
Q. N ever h e a rd of it?
A. I don’t know anyth ing about it.
Q. Do you know w hether or not any person in the
B irm ingham T erm inal S tation who w as an em ployee
of B irm ingham Term inal Com pany ever called any
police officers because negroes w ere s itting in the in
te re s ta te and w hite p assenger w aiting room ?
A. I h av e no know ledge of it.
Q. H ave you ever seen any police officers in the
station?
A. Y es, sir.
Q. A re they th e re frequently?
A. They m ake periodic v is its in and out of the
station.
Q. As a m a tte r of fac t, isn ’t it a fact th a t m ost
of th e negroes sit in the colored and in tras ta te p as
sengers w aiting room and m o st if no t all of the w hite
passengers s it in the w aiting room labeled w hite and
in te rs ta te passenger w aiting room?
A. T h a t is co rrect.
Q. And th a t has been th e custom for a long num
ber of y ears , is th a t rig h t?
A. T h a t is righ t.
Q. Now I w ill ask you this question. D oes th e
B irm ingham T erm inal Compa,ny by p lacing these
signs notify the negro passengers to s ta y in th e
colored so-called in tra s ta te passen g er room?
119
Mr. R ountree:
I object to th a t.
Mr. Adams:
I h av e not finished the question yet.
Mr. R ountree:
I am so rry . My apology.
Q. (Continuing) And also notify the w hite passeng
ers to stay in th e in te rs ta te and w hite p assen g e r
w aiting room?
Mr. R ountree:
I object.
The C o u rt:
I susta in the objection.
Mr. A dam s:
Judge, I th ink he w as in a position to know w heth
e r they by those signs notify th em or not.
The Court:
He sa id the signs w ere put up and th a t is all he
can say.
Q. Do you know anything about w hat the policy
of the T erm inal Com pany is w ith reference to seg
regation in th e w aiting rooms?
Mr. Rountree:
We ob jec t to th a t, ca lls for a conclusion and a sJ
sum es th a t th e re is a policy.
120
The Court:
I understood h im to say th a t they h ad no policy
in th a t regard . Did you say th a t or not?
The W itness:
U nless they a re c rea tin g a d is tu rb a n ce it m akes no
difference w hat he is. We n ev er bother them .
The Court:
G entlem en, I am going to rece ss until in the m orn
ing a t nine. I w an t to m ak e th is exp lanation . I h ave
to go to M ontgom ery a t te n m in u tes to eleven, so we
w ill go from nine to 10:30 in the m orn ing and if we
canno t fin ish by th en we w ill have to p u t i t over un til
the n ex t day.
Mr. A dam s:
Y our H onor I would like to ask th a t A lexand ria
B aldw in be excused.
The Court:
You h av e no objection to h e r being excused do you,
gentlem en?
M r. R ountree:
No.
The Court:
She m a y be excused. We w ill recess un til n ine
o’clock in th e m orning .
(W hereupon a t five o’clock p .m ., a recess w as tak en
un til n ine o’clock a .m ., the following day .)
121
Forenoon Session.
N ine o’clock a .m . O ctober 28, 1959
The Court:
Now, h ad the exam in a tio n of M r. Caldw ell been con
cluded on both sides?
M r. A dam s:
No, sir, Y our Honor, we h a d n ’t fin ished w ith d irec t
exam ination .
I would like to m ake one observation , Y our Honor.
I consulted w ith a tto rneys for the defendan ts y e s te r
day evening and th is m orning concern ing the excuse
of M rs. Iv a M ichael of F lo rid a and they ind ica ted
th a t they could not do so because th e re m ig h t be some
o ther th ings th a t they w an ted to question h e r about
and I would like if possib le a f te r we fin ish th e te s j
tim ony of M r. Caldwell, if they have other questions
to in te rro g a te h e r so th a t she m ig h t be ab le to leave
in the m orning a t eigh t o ’clock.
The Court:
We w ill go into th a t.
Mr. A dam s:
T hank you.
122
J . C. CALDW ELL, resu m ed the s tan d and testified
fu r th e r as follows:
D irect E x am in a tio n (C ontinued).
(By Mr. A dam s):
Q. M r. Caldw ell, I th ink y e s te rd a y you te s tif ied th a t
so; fa r as th e T erm inal S ta tion w as concerned negroes
could s it in any w aiting room , is th a t correct?
A. T hat is co rrect.
Q. B ut you also te s tif ied th a t th e T erm in a l S tation
m a in ta in s and operates tw o se p a ra te w aiting room s,
is th a t rig h t?
A. T hat is righ t.
Q. Now, you sa id th a t th e re w ere som e signs over
the d ifferen t w aiting room s. I th in k you sa id one sign
w as in te rs ta te and w hite p a ssen g e rs w aitin g room
and one w as in tra s ta te and colored p assen g ers w a it
ing room . C an you tell m e, M r. Caldw ell, w h e th e r or
not th e signs th a t th e T erm in a l C om pany posted th e re
a re in com pliance w ith the L aw of A lab am a?
Mr. R ountree:
I ob jec t to th a t, invades the p rov ince of th e Court.
The Court:
S usta in th e objection.
M r. A dam s:
W e except.
Q. Do you know, M r. Caldwell, w hat the law is w ith
reference to ra c ia l sea tin g in th e w aiting room s of
th e T erm inal S tation?
123
M r. R ountree:
We ob jec t to th a t.
The Court:
I su sta in it.
M r. A dam s:
W e except.
Q. You sa id y es te rd a y th a t you h ad not seen the
a r re s t of any negroes fo r any th ing in th e T erm inal
S tation . I w an t to ask you do you know for a fa c t th a t
th e re never have been any a rre s ts in the T erm inal
S ta tion of negroes?
M r. R ountree:
I ob ject to th a t question on the grounds he h as te s
tified th a t he has n ev e r seen one.
The Court:
Well, of course—
M r. A dam s:
This type of exam ination is in the fo rm of a cross-
exam ination .
The Court:
Of course, cross-exam ination cannot inqu ire into
h e a rsa y testim o n y . If it is based on h e a rs a y of course
it w ould be su b jec t to th a t vice.
M r. A dam s:
A nd I ask h im if he did know of any o ther a rre s ts?
124
The Court:
Of course if he know s of it independently , of his
own know ledge.
M r. M adison:
We ob ject to it on the ground it doesn’t say w hat
th e a r r e s t m ig h t be for.
The Court:
I ov erru le the objection.
M r. M adison:
We except.
Q. Do you know of th e a r re s t of any negroes in the
T erm in a l S tation?
A. Does th a t include any d iso rd er or any th ing?
Q. F o r s itting in so-called w hite w aiting room ?
A. No, I do not.
Q. Do you know w h eth er or no t any tic k e t agents
m ay have called th e police officers of th e City of B ir
m ingham to a r r e s t anybody fo r s ittin g in the w hite
w aiting room ?
A. I do not.
Q. You canno t say th a t they d id not?
A. To m y know ledge they did not.
Q. B ut they could have called th em and you not
know n it, is th a t co rrect?
A. T hat is possible.
Q. Now I th ink you sa id th a t your position a t the
T erm inal S tation is S uperin tenden t of th e S tation , is
th a t co rrec t?
A. T h a t is correct.
Q. Now would you spell out to us exac tly w hat
your du ties a re in th a t capacity?
125
A. S uperv iso ry du ties in ch a rg e of the operation of
th e S ta tion and th e m a in ten a n ce of it.
Q. W hat does th a t include?
A. It includes the en tire opera tio n of p a ssen g ers ,
m ail, baggage, em ployees of th e B irm in g h am T erm i
na l Company.
Q. In your cap ac ity as S uperin tenden t, on behalf
of the T erm in a l C om pany, you are operating two sep
a ra te w aiting room s, is th a t co rrec t?
A. T hat is co rrec t.
Q. Now te ll m e, M r. Caldw ell, the T erm inal Com-'
pany is a corporation , I assum e, isn ’t it?
A. It is.
Q. Do you know who com prises the corporation,
who a re the m em bers of the corporation?
M r. Rountree:
Now w e ob ject to th a t, if Y our H onor p leases.
The Court:
I overru le .
Mr. A dam s:
You m ay answ er.
A. E ach te n a n t line th a t com es in there , each ra i l
road.
Q. Do you know w hat ra ilro ad s com e in there?
A. Yes.
Q W hat ra ilro ad s a re they?
A. Sou thern R ailw ay, A lab am a G reat Southern
R ailw ay , Illinois C entral, F risco , S eaboard and Cen
t r a l of G eorgia.
Q. Now is it a fac t th a t those ra ilro ad s m ain ta in
the T erm inal S ta tion th rough the B irm ingham T erm i
na l Com pany?
126
M r. R ountree:
W e ob ject to th a t on the ground it is irre lev an t, iirn
m a te r ia l and incom petent.
The Court:
They a re the sole s tockholders as I u n d e rs tan d it.
Q. Do ind iv iduals own any stock?
The W itness:
As f a r as I know.
Q. I t is a fa c t th a t the T erm in a l C om pany m a in
ta in s th e T erm in a l S ta tion located h ere in B irm in g
h am , is th a t a fac t?
A. T hat is righ t.
Q. How long h av e you been em ployed, M r. C ald
well, w ith the T erm in a l C om pany?
A. W ith the B irm ingham T erm inal C om pany?
Q. Yes.
A. Since N ovem ber 1, 1947.
Q. How long have you b een Superin tenden t of the
T erm in a l S tation?
A. O ctober 1, 1951.
Q. I believe th a t you w ere S uperin tenden t of the
S tation a t the tim e th a t th e In te rs ta te C om m erce Corm
m ission ru led ag a in s t seg regation in the w aiting
room s, is th a t co rrec t?
M r. Rountree:
I ob ject to th a t question. He can show w hen the
In te rs ta te C om m erce C om m ission ru led , if he w ants
to.
127
The Court:
I overru le th e objection.
A. I don’t know w hen it w as.
Q. I t w as in 1955?
A. I w as S u p erin ten d en t in 1955.
Q. A fter th a t ru ling did you, or did your com pany,
do any th ing abou t changing the custom or p ra c tic e of!
opera tin g s e p a ra te w aiting room s in the B irm in g h am
T erm inal S tation?
Mr. Rountree:
I ob jec t to th a t on th e grounds th a t the question is
b ased on an assum ption of custom and p rac tice . He
can ask the w itness w h a t he did.
The Court:
S usta in th e objection.
Q. I w ill re p h ra se it. M r. Caldwell, since the ru ling
did you or your com pany a t the B irm ingham T erm i
n a l S tation do any th ing a fte r the ru ling w as issued so
fa r as opera tin g se p a ra te w aiting room s is concerned?
A. No. M ay I qualify th a t question?
Q. Yes.
A. We do not p rac tice seg regation , did not p ra c
tice seg regation p rio r to th a t so th e re w as no. change.
Q. B u t you h ad operated two se p a ra te w aiting
room s?
A. We still do.
Q. I th ink you te stified in Court y es te rd ay , M r.
Caldwell, as a m a tte r of fa c t m ost of th e people, m ost
of the w hite people s it in the w aiting room denom i
na ted w hite and in te rs ta te p assen g e r w aiting room
and m ost of the colored people, if not a ll of them ,
128
s it in the s ta tio n denom inated co lored and in tra s ta te
p a sse n g e r w aiting room, is th a t co rrec t?
A. N ot all of them , but the m ajo rity .
Q. All of the w hite people sit in th e one designated
in te rs ta te w hite passen g er w aiting room , is th a t righ t?
A. T h a t is righ t.
Q. M r. Caldw ell, h av e you ever seen a copy of
the O rd er of the A lab am a P ub lic Serv ice Com m ission
G en era l O rder T-21, w hich is P la in tiff’s E x h ib it 7,
w hich I show you now. H ave you ever seen th a t O r
d er?
A. I have no reco llection of ever seeing it.
Q,. Could you say you have not seen it?
A. To the best of m y know ledge.
Q. You have not seen it?
A. No.
Q. H as it been com m unica ted to you th a t such an
O rd er as th is w as in existence?
Mr. R ountree:
I ob ject to w hat w as told him on the grounds of
irre lev an ce and im m ate ria lity .
The Court:
I overru le it.
M r. A dam s:
You m ay answ er it.
A. I do not rem e m b er ev er seeing it.
Q. M r. Caldw ell, w ill you te ll the C ourt w hat Ala-'
b a m a A gency or B oard regu la tes the B irm ingham
T erm inal Com pany, if you know?
129
M r, M adison:
We ob ject to tha t.
The Court:
Of course th a t is a m a tte r of law and I ta k e ju
d ic ial no tice and know ledge of the law s of A labam a.
Q. Do you know, M r. Caldw ell, w hether or no t the
B irm ingham T e rm in a l Com pany is in co rp o ra ted in the
S ta te of A lab am a?
A. I t is.
Q. M r. Caldwell, can you tell us, to the b e s t of
your know ledge, how long the signs we have been
ta lk ing abou t have been in the B irm ingham T erm inal
S tations?
A. The ones over the door?
Q. The ones w ith colored in tra and w hite and so
fo rth?
A. It would be the ea rly p a r t of ’56 as I re m e m
ber, bu t I have no reco rd of it.
Q. The early p a r t of ’56?
A. Yes.
Q. I believe you sa id you don’t know anyth ing
about th is O rder w hich is P la in tif f ’s E x h ib it 7, Gen
e ra l O rder T-21 dated F e b ru a ry 8, 1956?
A. I would never get any th ing like tha t.
M r. A dam s:
I believe th a t is all.
M r. R ountree:
We h av e no questions of M r. Caldwell a t th is tim e.
I w ill p robab ly use him .
130
M r. A dam s:
Ju d g e , as w e previously announced we would like
th e w itness M iss Iv a M ichael for w h a tev e r pu rpose
th e defendant w ould like to exam ine h e r to be used
a t th is time.
Mr. B reckenridge:
I don’t have any add itional questions.
The Court:
Any of the defendan ts?
M r. R ountree:
We h ave no fu r th e r questions of her.
The Court:
She can be excused.
M r. A dam s:
Ju d g e , I w an ted to announce I tried all la s t n igh t
to get in touch w ith M r. F red T aylor and I called
th is m orn ing and nobody answ ered th e ’phone. We
w anted to use h im a t th is tim e.
The Court:
Now w h at w as th e n a tu re of the exam ination of M r.
T aylor?
M r. A dam s:
I w an ted to pinpoint c e r ta in s ta tem en ts m ad e by
Mr. J a c k Owens concern ing h is in tentions to m a in ta in
seg reg a tio n in the w aiting room s and th a t he had done
so.
131
The Court:
E m bod ied in new spaper a rtic le s w hich h ave been
offered in evidence?
M r. A dam s:
Yes, sir.
The Court:
W ell, I don’t know w hether counsel can stip u la te if
M r. T ay le r w ere here he would te stify th a t the a rtic le s
w hich ap p ea red in the new spaper clippings w hich h ave
been offered in ev idence u n d er h is byline, constitu ted
a p a r t of th e s ta tem en ts m ade, to; the b e s t of his recol
lection. I don’t know w hether you g en tlem en could
s tip u la te th a t sub jec t to objection as to adm issib ility
and relevance.
M r. M adison:
Y our Honor, we have an ag reeab le d isposition to
do anyth ing to be helpful bu t th is p a r tic u la r type
of, in th is p a r tic u la r type of law su it we don’t w an t to
do anyth ing .
M r. A dam s:
We w on’t be in a position to re s t un til w e can have
h im here u n d er the c ircum stances, bu t w e can call
o ther w itnesses w hich we h ad not p lanned to call a t
th is tim e, bu t w e can call them .
M r. M adison:
Well—
M r. Newton:
Mr. Owens testified y e s te rd a y he could not rem e m
b e r if he m ad e those s ta te m e n ts or not, how ever, he
132
did rem e m b er th a t M r. T ay lo r w as p resent a t the
speech.
The Court:
I am going to p e rm it them to p u t M r. T ay lor on.
N ext w itness.
M r. Newton:
R everend E dw in G ard n er.
ED W IN G A RD N ER, hav ing been duly sw orn, te s ti
fied as follows:
D irec t E xam ination .
(By M r. N ew ton):
Q. S ta te your n am e and address, p lease , sir.
A. R everend E dw in G ard n er, 6207 T hird A venue
N orth.
Q. R everend G ardner, how long have you lived in
th e City of B irm in g h am , A labam a?
A. A pprox im ate ly 39 years .
Q. In the 39 y ea rs th a t you h ave lived th e re h ave
you h ad occasion to v is it the B irm ingham T erm in a l
Station?
A. I have.
Q. H ave you v isited th e B irm in g h am T erm inal Stan
tion frequen tly o r in frequen tly , sir?
A. A pprox im ately tw ice a y ear.
Q,. D uring the course of, and h av e you done th a t
fo r th is period of 39 y ea rs , tw ice a y e a r ap p ro x im a te
ly?
A. No, sir.
Q. How long have you v isited th e B irm ingham
T erm inal S tation on an av e ra g e of tw ice a y ea r?
A. A t le a s t abou t five or six years .
133
Q. A bout five or six y e a rs?
A. Yes.
Q. Now, R everend G ard n er, du ring the five or six
y e a rs th a t you h av e v isited th e B irm in g h am T erm inal
S tation on an av erag e of tw ice a y ear, h av e you no
ticed signs there?
A. Yes, I have.
Q. A re you fa m ilia r w ith the signs a t th e B irm in g
h a m T erm in a l S tation th a t says “ In te rs ta te and W hite
P a sse n g e rs W aiting R oom s” ?
A. Y es, sir.
Q, H ave you du ring th e p a s t five or six y e a rs on
your tw ice-a-year v isit, h ave you seen negroes sitting
in th a t w aiting room ?
A. No, sir.
Q. T hen you te ll H is Honor th a t a t le a s t tw ice
ev e ry y ea r, for the p a s t five or six y ea rs you have
gone in the B irm ingham T e rm in a l S tation, you have
seen no negroes s ittin g in th a t w aiting room ?
A. I have not.
Mr. Newton:
You m ay exam ine.
Cross E xam ination .
(By M r. B re c k e n rid g e ):
Q. W hy h ave you gone to th e B irm ingham T erm i
n a l S tation tw ice a year?
A. I h av e gone th e re to m e e t m y w ife going b ack
and fo rth to Chicago.
Q. Going b ack and fo rth to Chicago?
A. Yes.
Q. W here do you live in th e City of B irm in g h am ?
A. 6207 T hird A venue N orth, W oodlawn.
134
Q. Now w h at is your occupation?
A. M in ister, P a s to r of the M ount O live B ap tis t
C hurch.
M r. R ountree:
No questions.
The Court:
N ext w itness.
M r. Newton:
J u s t a m inute, we h av e one o ther question of th is
w itness, Y our Honor.
The Court:
All right.
R e-D irec t E xam ination .
(By M r. N ew ton):
Q. R everend , did you go to the B irm in g h am Ter-1
m in a l S ta tion ju s t y e s te rd a y ?
A. Y es, sir.
Q. Did you notice th e signs?
Mr. B reckenridge:
We ob ject to th a t. T hat is no t p roper re-d irect ex
am ination .
The Court:
I overru le .
Q. Did you notice th e sam e signs th e re th a t you
u sually noticed?
A. Yes, sir.
135
Q. Did you see any negroes s itting in th e sta tion
m a rk e d in te rs ta te and w hite p assen g ers?
A. No.
Mr. Newton:
I believe th a t is all.
Re-C ross E xam ination .
(By M r. R ountree):
Q. You w en t to the T erm in a l S tation y es te rd ay , is
th a t rig h t?
A. Yes.
Q. W hen w as the la s t tim e before th a t th a t you
w ent th e re ?
A. The la s t tim e before th a t I w en t th e re w as, I
th ink it w as som etim e a f te r school closed. My wife
w en t to Chicago and I w ent to ta k e h e r to th e station .
M r. B reckenridge:
No fu rth e r questions.
The Court:
All righ t. N ext w itness.
M r. Newton:
M r. S hortridge .
136
W. E . SH O RTR ID G E, hav ing b een duly sworn, tes-1
tified as follows:
D irec t E xam ination .
(By M r. N ewton):
Q. S ta te your nam e, p lease , and address.
A. W. E . Shortridge, 1430 19th S tree t, E nsley .
Q. Now, M r S hortridge , w h a t is your occupation?
A. F u n e ra l D irec to r.
Q You a re the F u n e ra l D irector for w hat o rg an i
zation, sir?
A. S hortridge F u n e ra l Home.
Q. How long, M r. Shortridge, h ave you lived in the
City of B irm in g h am ?
A. F ifty -e igh t years .
Q. M r. Shortridge, hav ing lived in th e City of B ir
m in g h am for 58 y e a rs , h av e you h ad occasion over
th e y e a rs to v is it the B irm in g h am T erm inal S tation?
A. Yes, sir.
Q. Do you v is it the B irm ingham T erm in a l S tation
freq u en tly or infrequently?
A. F requen tly .
Q. C an you tell His Honor, w hen is the la s t tim e
you w ere a t th e B irm in g h am T erm in a l S tation?
A. Y esterday .
Q. And p rio r to y este rd ay , can you reca ll w hen
w as the la s t tim e you v isited the B irm in g h am Term D
n a l S tation?
A. N ot th e ex ac t date , bu t about two w eeks’ ago.
Q. Now are you fa m ilia r w ith ce rta in signs posted
a t the B irm in g h am T erm inal Station?
A. Yes, sir.
Q. H ave you seen a sign th e re m a rk e d in te rs ta te
and w hite p assen g ers?
137
A, Yes, sir.
Q. Now over the p a s t two w eeks or for the p as t
two y ears , h ave you no ticed negroes s itting in th a t
w aiting room m a rk e d in te rs ta te and w hite p assen
g ers?
A. No, sir.
Q. On your v is it to the B irm ingham Term inal S ta
tion on yeste rd ay , did you notice n eg roes s itting in
th a t w aiting room m a rk e d in te rs ta te and w hite p a s
sengers?
A. No, sir.
M r. Newton:
You m a y exam ine him .
Cross E xam ination .
(By M r. B reckenridge):
Q. You say you have gone to the T erm in a l S tation
frequen tly over the la s t few years. W hat w as the oc
casion fo r your trip s to the T erm inal S tation?
A. Oh, various and sund ry occasions. Som etim es to
c a r ry a dead body and som etim es to p ick up one and
som etim es to p ick up re la tiv es and friends of de
ceased.
Q. On each of these occasions did you go into the
in te rs ta te and w hite , the room m arked in te rs ta te and
w hite w aiting room?
A. No, sir, not yeste rd ay , I d idn ’t go in there y es
te rd a y .
Q. You d id n ’t go in th e re y es te rd ay . Did you go
in th e re on the o ther occasions?
A. Yes, sir.
Q. W hat w as your purpose in going in the re a t
th a t tim e?
138
A. To p u rch ase tick e ts .
Q. To pu rch ase tick e ts?
A. Y es, sir.
Q. F o r yourself or fo r the tra n sp o rt of bodies?
A. W ell, for tra n sp o rtin g bodies and for m yself
and for o th e rs as well.
Mr. B reckenridge:
T h a t is all.
R e-D irec t E x am ination .
(By M r. N ew ton):
Q. On those occasions w hen you w ent in to buy
tick e ts to tra n sp o rt bodies and fo r yourself and others
did you s it in the w aiting room ?
A. No, sir.
Q. And did you see any o th e r negroes s itting
th e re ?
A. No, sir.
Mr. Newton:
I believe th a t is all.
The Court:
N ext w itness.
M r. R ountree:
One question in response to th a t.
Re-Cross E xam ination .
(By Mr. R oun tree):
Q. You w en t into the w aiting room m a rk e d in te r
s ta te and w hite p assen g ers to buy a ticket. How long
did you s tay in th e re ?
139
A. Oh, ju s t long enough to g e t th e tick e t. I t de
pends on if th e agen ts w ere busy or not.
Q. M ight be one m inu te , m ig h t be five m inu tes?
A. T hat is righ t.
Q. How m an y tim es did you go in th e re la s t y e a r?
A. L a s t y e a r?
Q. Yes.
A. O r th is y ea r?
Q. W ell, during th is ca len d ar y ea r.
A. I ju s t would not be ab le to say, m aybe 25 or 30
tim es, or m ore.
Q. On how m an y of those occasions w ere occasions
of your trav e llin g som ew here?
A. W ell, m aybe th ree or four.
Q. T hree or four?
A. Yes, sir.
Q. So th e o ther 22 occasions w ere involved w ith
th e shipm ent of bodies, is th a t correct?
A. Yes.
Q. A nd those 23 tim es ap p ro x im ate ly we a re talk-'
ing abou t fo r th e hand ling of bodies, did you have oc
casion to go into th e w hite and in te rs ta te w aiting
room a t th a t tim e?
A. Y es, sir, the w ay it is a rran g ed it is the only
w ay you can get a tick e t is to go in th e door m ark e d
ticket, bu t over th a t p a r tic u la r door there is no such
sign and th e tic k e t office is inside the w hite w aiting
room.
Q. They n e v e r did in te rfe re w ith you w hile you
w ere in there?
A. No, sir.
Mr. R ountree:
T h a t is all.
140
The Court:
N ext w itness.
M r. Newton:
J u s t one o ther question.
R e-D irec t E xam ination .
(By M r. N ew ton):
Q. In th e seating a rea of th is w aiting room) ys th a t
tick e t w indow ac tu a lly w ith in th e seating a re a of the
w aiting room or is it som e so rt of little , is th e re some
so rt of little d iv isor or is it ju s t outside of th e w ait
ing room ?
A. No, it is no t outside. There is a door com ing
from th e t r a in en te rs into the w aiting room , com ing
from the fron t en te rs into the w aiting room .
Q. By the fron t are you re fe rr in g to 26th S treet?
A. Yes, 2.6th S treet. I t en te rs into the w hite wait-*
ing room and of course th e T icket O ffice is ad jacen t
to th e B aggage D ep artm en t and of course you can
en te r the room from the B aggage D ep artm en t and
from the colored w aiting room.
Q. Now in your ex p erien ce have th e re been other
negroes s tand ing a t th is tic k e t w indow o ther th a n
yourself on occasion w hen you h ave p u rch ased tick
ets th e re?
A. Y es, sir.
Q. And upon p u rch asin g the ir tick e ts do those
o ther negroes th a t you see th e re s tay th e re o r go out
to som e o th e r p lace?
A. They w en t out to th e colored w aiting room.
M r. Newton:
I believe th a t is all.
141
M r. Rountree:
One o ther question.
R e-Cross E xam ination .
(By M r. R oun tree):
Q. T hese o th e r negroes you saw leave out of th ere ,
nobody to ld them to go into one w aiting room or an
o ther?
A. No, I don’t believe I h ad occasion to h e a r th a t.
M r. Rountree:
T hat is all.
The Court:
N ext w itness.
M r. A dam s:
Ju d g e , our n ex t w itness is M r. C arro ll and I u n d e r
s tan d he is on call and we have no fu r th e r w itnesses
a t th is tim e.
The Court:
Well, we w ill pu t the f irs t w itness on for th e de
fendan t.
Mr. R ountree:
U nless th e Court w an ts to w ait for M r. C arro ll I
w ill pu t M r. Caldw ell on. I w an ted to file a m otion
a fte r the p resen ta tio n of the P a in tiff’s case. M ay I
go ahead w ith m y w itness w ithou t w aiv ing th a t?
The Court:
Yes. B ecause the 'P lain tiff has not rested .
142
J . C. CALDW ELL, hav ing been previously sw orn,
w as reca lled and te stif ied fu rth e r as follows:
D irect E xam ination .
(By M r. R oun tree):
Q. To keep the reco rd s tra ig h t w ill you s ta te your
nam e again , p lease , sir.
A. J . C. Caldwell.
Q Y ou testified th a t you a re S uperin tenden t of the
B irm in g h am T erm in a l C om pany?
A. T h a t’s right.
Q. And h ad been such since 1951?
A. R ight.
Q. H ad been em ployed by the B irm in g h am T erm i
n a l C om pany since 1947?
A. C orrect.
Q. And you te stif ied th a t you are in com plete
ch arg e of the day-to-day operations of the Term inal
C om pany?
A. T hat is righ t.
Q. In non-railroad lang u ag e you would be consid
ered a G eneral M anager of the B irm in g h am T erm i
n a l Com pany, is th a t co rrec t?
A. T h a t is co rrect.
Q. A re all of the em ployees of the B irm in g h am
T erm inal C om pany su b jec t to your control and super
vision?
A. Y es, sir.
Q. Is your office a t th e B irm ingham T erm inal
Com pany?
A. Yes.
Q. A re you th e re each day w hen you a re a t work?
A. Yes, sir.
143
Q. In w h at business is the B irm in g h am T erm inal
C om pany engaged?
A. The operation of the p a ssen g e r sta tion and the
m ain ten an ce thereof.
Q. And you h av e a lread y testified th a t th e B irj
m in g h am T erm inal C om pany is a corporation and it
is an A lab am a corporation?
A. It is.
Q. W hat is the , for the reco rd , w h a t is the location
of th e B irm in g h am T erm inal C om pany, w h at is the
s tre e t ad d ress?
A. 501 N orth 26th.
Q. In the v ic in ity of the in tersec tion of N orth 26th
S treet and' 5th Avenue, N orth?
A. Yes.
Q. Does the B irm in g h am T erm inal Company own
any p ro p e rtie s o ther th a n in th a t genera l location?
A. N ot as fa r as I have any know ledge.
Q. Does the B irm ingham T erm inal C om pany own
any ra ilro ad engines?
A. No, sir.
Q. Does th e B irm ingham T erm inal C om pany own
any ra ilro ad ca rs?
A. No, sir.
Q. Does it o pera te any tra in s?
A. It does not.
Q. As G en era l M anager to w hom do you report,
w ho is your im m ediate superior?
A. The A ss is tan t to the P re s id e n t of the B irm ing
h am T erm in a l Com pany.
Q. W hat is h is nam e?
A. P resen tly ?
Q. Yes, p resen tly .
A. M r. D. H. M cLeod.
144
Q Who is the P resid en t of the B irm ingham T e rm i
n a l Com pany?
A. M r. H. W. B ondurant.
Q. W here does he live?
A. A tlanta.
Q. Does e ither the A ss is tan t to the P re s id e n t or
the P resid en t ta k e any ac tive p a r t in th e day-to-day
operations of the s ta tion?
A. N ot day-to-day, no.
Q. L et m e h av e E x h ib it 8 and 9, p lease . M r. Cald-1
well, I show you P la in tiff’s E x h ib it # 9 w hich shows
a sign over a door saying “ W aiting Room In te rs ta te
and W hite In tra s ta te P a sse n g e rs .” I ask you a t how
m an y locations in th e T erm in a l S tation is th is sign
located?
A. Two.
Q. A t w h at two locations?
A. The m a in en tra n ce off 26th S treet into the wait-'
ing room and from the tra in s opposite.
Q. In other w ords, there is a sign, re fe rr in g you
to m y rep resen ta tio n on the b lackboard of the T erm i
n a l S tation , you sa id th a t one sign is over the m a in
en tra n ce on the s tre e t side?
A. Yes, sir.
Q„ And one sign d irec tly acro ss over the m a in en
tra n c e on the concourse or ra ilro ad side?
A. Yes, sir.
Q. W as there any o ther p lace in th e T erm inal Sta-t
tion w here th is sign is located?
A. No, sir.
Q. And w hen w ere these two signs p laced a t these
two p laces?
A. D uring the ea rly p a r t of 1956.
Q. A t th a t tim e w ere they p laced a t these two
p laces over th e two m ain en tran ces?
145
A. O ver the two m ain en trances.
Q. H ave they since been m oved?
A. They have not.
Q. H as th e w ording of the signs since been
changed?
A. No.
Q. The tw o signs, th e w ording has been the sam e
the en tire tim e since 1956?
A. It has.
Q. I show you P la in tif f s E xh ib it # 8 w hich shows
a sign over a door say ing colored in tra s ta te p a sse n
g e rs w aiting room. A t how m any locations is th is
sign?
A. Two.
Q. A re th ese signs over doors in both in stances?
A. They are.
Q. W here a re those doors?
A. One is on the 26th S treet en tran ce and the
o ther one out of th a t a re a tow ard the tra in .
Q. Since you have been S uperin tenden t of the Ter--
m in a l Com pany h as any em ployee of the B irm in g h am
Term inal C om pany asked a negro passen g er to leave
any w aiting room ?
A. Not th a t I know of.
Q. H ave you ev er asked a negro to leave any w ait
ing room ?
A. I have not.
Q>. H ave you ever in s tru c ted the em ployees of B ir
m ingham T erm in a l Com pany to ask any negro to
leave any w aiting room ?
A. No, sir,
Q. And specifica lly I am including w hen I say any
w aiting room , the w aiting room over w hich are th e
signs in te rs ta te and w hite passengers. H as anyone
else in a position of au thority w ith the B irm in g h am
1'46
T erm in a l C om pany in s tru c te d an em ployee to ask any
negro to leav e any w aiting room ?
A. Not to m y knowledge.
Q. Is your answ er not to your know ledge?
A. Yes, sir.
Q. H ave you ever ca lled th e police about neg roes
using any w aiting room?
A. I have not.
Q. H ave you ever in s tru c te d any em ployee of th e
B irm in g h am T erm inal Com pany to call the police?
A. No, sir.
Q. Or has anybody in a position of au th o rity w ith
th e B irm in g h am T erm inal C om pany w hether under
you or over you, in s truc ted em ployees of the B irm in g
h a m T erm in a l C om pany to ca ll police w ith re sp e c t to
negroes being in any w aiting room ?
M r. A dam s:
I ob ject to th a t, Y our Honor.
The Court:
I t m u s t be lim ited to his know ledge.
The W itness:
I h ave no know ledge.
Q. U nder your operating p rocedu res do in stru c tio n s
to em ployees com e th rough your office?
A. They do.
Q. No in stru c tio n s to em ployees are g iven by th e
P re s id e n t of the Com pany or the B oard of D irecto rs
except th rough you?
A. T hat is righ t.
Q. H ave you seen n eg roes using th e w aiting room
m a rk e d in te rs ta te and w hite p assen g ers?
A. I have.
147
Q, W hen w as the la s t tim e you saw th em use it?
A. M onday of th is week.
Q. H ave you ever asked a negro using th a t wait-!
ing room w hether he h as an in tra s ta te or in te rs ta te
ticket?
A. No, sir.
Q. H ave any of your em ployees ev e r asked?
A. Not to m y knowledge.
Q. H ave you ev er in s tru c ted your em ployees to ask
negroes using th a t w aitin g room to ask w h eth er they
h ave in tra s ta te or in te rs ta te tickets?
A. I h av e not.
Q. H as anyone else?
A. Not to m y know ledge.
Q. H ave any in struc tions p assed th rough your of
fice to th a t effect?
A. None have passed .
Q. H ave you ever received any in struc tions from
—I w ith d raw th a t question—I ask you w hat p a r t of
th e w aiting room is th e ticket w indow located?
A. It is in th e so u th eas t corner.
Q. A re th e re tick e t w indows on two sides of the
tick e t office?
A. Yes, sir.
Q,. I show you the d raw ing on th e board and ask
you if in th e southern portion of the T erm inal w a it
ing room the tick e t office looks like th is?
Mr. A dam s:
Judge, I w ould like to in troduce an objection h ere .
If counsel w an ts to m ak e som ething of d irec tions I
th ink the d ia g ra m to be understood by us should be
labe led south, north, eas t and w est.
148
The Court:
I u nders tand w here the tic k e t office is located. I
am th e one who is in te re s ted and I u n d e rs tan d it.
I t is no t in evidence, the d ia g ra m on th e b o a rd and
I say from th e te stim o n y I do u n d ers tan d the loca
tion and th e re fo re th e objection is overru led .
Q. How m any tick e t w indow s do you h av e on th is
side w hich w ould be fac ing n o rth into the w aiting
room , w h at w indow s in w h a t would be the n ea re s t
w all runn ing in an east-w est d irection?
A. Two.
Q. A nd on th e side facing in a w esterly d irec tion
how m any w indow s a re there?
A. Three.
Q. A pprox im ately how fa r is it from the en tran ce
th a t m a in en tra n ce into th e w aiting room from the
concourse to the tra in s , from th a t point to th e ticket
w indow?
A. There are two a isles app ro x im ate ly 75 to 80 feet
com ing down the n e a re r aisle?
The Court:
I would like to ask M r. Caldw ell. M r. Caldw ell of
course I h ave been in the T erm inal S tation m any
tim es and I u n d ers tan d th e situa tion of th e location
there , bu t for the reco rd th e sea ts provided for the
people in th e w aiting room ru n eas t and w est.
The W itness:
T hat is co rrec t.
The Court:
And each sea t has sea ts fac ing no rth and south.
149
The W itness:
Both directions.
The Court:
So th a t one p assen g e r’s b ack is to th e o ther p a s
sen g er’s back?
The W itness:
T hat is righ t.
The Court:
W ould you give your opinion as to the approx im ate
d is tan ce betw een th e f irs t s e a t th a t faces th e tic k e t
w indow as a passenger sits, about how fa r is it from
w here he s its to the tick e t window?
The W itness:
F ifteen to eigh teen feet, I would judge.
M r. R ountree:
Those are a ll of the questions I have.
The Court:
Does any o ther defendant h ave any o ther questions?
Mr. B reckenridge:
No.
The Court:
If not, is th e re any cross exam ination?
150
Cross E xam in a tio n .
(By M r. A dam s):
Q. I believe you s ta te d th a t D. H. M cLeod w as
A ssis tan t to the P re s id e n t H. W. B onduran t, is th a t
righ t?
A. T hat is righ t.
Q. I believe you sa id D. H. McLeod w as your im-*
m e d ia te superv iso r?
A. T hat is righ t.
Q. Now I th in k y es te rd a y you te stified th a t you
d idn ’t rem e m b e r w ho gave you th e in stru c tio n s to put
up the signs, is th a t co rrec t?
A. I have te s tif ied th a t the C h a irm an of the B oard
of Control told m e to pu t up the signs, m y im m ed i
a te superio r.
Q. A nd you d idn ’t rem em ber who it w as?
A. W ell, a t th a t tim e, in o ther w ords, they change
fro m y ear-to -y ear or w hen th e officers change posi-t
tions, as to who w as C h a irm an in ’56, I don’t rem em
ber w ho w as in th a t position a t th a t tim e.
Q. Now who is it, the A ss is tan t to th e P resid en t
d id n ’t give you in stru c tio n s to pu t up th e signs, is
th a t co rrec t?
A. T hat is co rrect.
Q„ Who w as it th a t did so?
A. The C h a irm an of the B oard of C ontrol w ho w as
a local m a n and the A ss is tan t to th e P re s id e n t does
not live in B irm ingham .
Q. W ho w as A ssis tan t to the P re s id e n t a t th a t
tim e?
A. S. M. P e rc iv a l.
Q. W here did he live?
A. C harlo tte, N orth C arolina.
151
Q. A re you still say ing you don’t re m e m b e r who
the C h a irm an of the B oard of Control w as a t th a t
tim e?
A. I d idn ’t look up the record . I don’t rem em b er.
The C hairm an of th e B oard of Control is d ifferen t be-f
cau se it is based on th e operating of th e o ther ra i l
roads.
Q. How frequen tly would you com e in con tac t w ith
h im ?
A. The C h a irm an of the B oard of C ontrols?
Q. Yes.
A. J u s t w hen som e policy-m aking changes would
be m ade.
Q. How freq u en t w as th a t in 1956?
A. I don’t know how to e s tim a te th a t. They have
m eetings but not regu larly . I do not know ap p ro x i
m ate ly how m any.
Q. Now the C h a irm an of the B oard of Control in
la y m a n ’s lan g u ag e w ould be s im ila r to th e C h a irm an
of the B oard of D irec to rs, is th a t righ t?
A. No, the B oard of Control h as only operating com
trol.
Q. W hat a re the du ties of the B oard of Control?
A. To recom m end to the B oard of D irec to rs any
n e c e ssa ry im provem ents or changes in opera tin g con
ditions.
Q. Coming b ack to th is d ia g ra m of the w aiting
room s I believe you testified th a t th is is the ticket
office, is th a t righ t?
A. Yes.
Q. And how m any window s a re in the fron t of it?
A. One big window w ith th re e counters, th ree sep
a ra te p laces w here people can sell tickets.
Q. Is th a t located in the so-called in te rs ta te w hite
p a ssen g e r w aiting room?
152
A. It is.
Q. A ccord ing to your s ta tem en t th is is an approxi-J
m a te descrip tion of how th is tick e t w indow looks, is
th a t rig h t? I m e an in re la tio n to the o th e r p a r t of
th e w aiting room .
A. It would be.
Q. A ssum ing th a t th is w aiting room , th a t th is is
th e w aiting room h e re w ith the en tran ces here and
h e re and h e re and here .
A. T hat is righ t.
Q. Now does th a t fit on the outside like th a t?
A. No, it is in the low er coirner.
Q. B ut it would com e in here?
A. Yes, r ig h t n ex t to th a t line th e re , (ind icating)
Q. Would you m ind d raw ing it?
A. (M akes d raw ing .)
Q. Is th is an extension of it?
A. Yes. T hat is w here the th re e w indow s are.
Q. In o ther w ords, it would com e on out th e re?
A. It goes on to th e corner of the building.
Q. Now th e re a re th ree window s h ere you say?
A. T hat is righ t.
Q. How m an y h ere?
A. Two—no, none th e re , bu t two across the other
w ay.
Q. This w ay?
A. Y es. Now those th ree are from th e co rn er all
the w ay down (ind icating ).
Q. T here a re none here?
A. Two th e re .
Q. And th re e here?
A. Yes.
Q. Now th e re is ac tu a lly a w all r ig h t here, is th a t
correct?
153
A. Yes. And th is is sligh tly outside of the w aiting
room. It is an offset like you see there .
Q. In o ther w ords, it is beyond the w all or th is
w all of the w aiting room , is th a t co rrec t?
A. C orrect.
Q„ I th ink you sta ted th a t the sea ts ru n from east
to w est. Is th a t co rrec t in the w aiting room?
A. Y es. They a re facing no rth and south.
Q. Would you m ind show ing us how they f it in
here.
A. (In d ica tes .)
Q. Now you say they face north and south. In
o ther w ords, w hen you sit down in one of them you
a re fac ing to the north. Is th a t c o rrec t? Or to the
south?
A. T hat is righ t.
Q. W hich one?
A. Both. I t depends on w hich one you are sitting
on. They face both w ays.
Q. I believe you testified th a t th e re is a seat in
the w hite w aiting room th a t faces the tic k e t window?
A. T hat is righ t.
Q. B ut you say it is ap p ro x im ate ly 15 to 18 feet
from it?
A. T hat is righ t.
Q. Now does th is sea t, the f irs t sea t fac ing the
tic k e t window, is the end of th a t sea t, does it go be
yond the end, not the end of th e tick e t w indow to
the w all, b u t th e end of the ticke t w indow exceeds—
does th a t s e a t go beyond the end of th e tick e t w im
dow, or is it p a ra lle l or flush w ith it?
A. I t w ould be around two feet beyond it.
Q. Could a passenger w alk ing in the front door
w alk s tra ig h t and w alk in to the se a t and s it down
w ithout m ak ing a tu rn excep t to tu rn around to sit?
154
A. The fron t door?
Q. This door. I th ink you sa id th is is a door.
A. Yes.
Q Could a p assen g er w alk ing th ro u g h th is door
c losest to th is ticke t w indow w alk rig h t into a sea t?
A. It would be very little , m ay b e a step or two
th a t th ey w ould have to take .
Q. It w ould not be v ery m uch, would it?
A. No.
M r. A dam s:
T h a t is a ll.
M r. R ountree:
No fu r th e r questions of Mr. Caldwell.
M r. A dam s:
I would like to ask M r. C onnors to take th e stand.
The Court:
All righ t.
E U G E N E CONNOR, h av ing been duly sworn, te s ti
fied as follows:
D irec t E xam ination .
(By M r. A dam s):
Q. P le a se s ta te your n am e to the Court, sir.
A. Theo E ug en e Connor.
Q. W hat is your office w ith the City of B irm ing
ham , M r. Connor?
A. P ub lic S afety C om m issioner.
Q,. How long have you held th a t office?
155
A. I took office in N ovem ber 1957.
Q. Mr. Connor, h ave you ev e r g iven any in s tru c
tions to th e police o fficers of the City of B irm ingham
w ith refe ren ce to n eg ro es s ittin g in the so-called w hite
w aiting room.
A. Yes.
Q. W hat in s tru c tio n s did you give them ?
A. Som etim e in 1958, a f te r I took office, th e Chief-
of-Police ask ed m e w h at we w ere going to do about,
sa id he h ad got som e calls about th e T erm in a l S tation
and asked w h at w e w ere going to do abou t it. I sa id
a s long as they have an in te rs ta te com m erce tic k e t
you ca n ’t do nothing.
Q. Did you say w h at they could do if th ey did not
h av e one.
A. I did not.
Mr. B recken ridge:
W e ob jec t to th a t.
The Court:
I overrule .
Q. Then if they have an in te rs ta te com m erce , th a t
is an in te rs ta te tra v e l tic k e t so fa r as your office is
concerned they can sit in the w hite w aiting room ?
M r. B reckenridge:
We ob ject to w h a t they can do.
The Court:
I su sta in th a t. He h as s ta ted w hat in struc tions he
gave.
156
Q. Now if they a re going in in tra s ta te tra v e l w h at
in s tru c tio n s did you give, if any?
A. None.
M r, B reckenridge:
We ob ject to th a t.
The Court:
O verru le the objection.
Q. You have g iven no in struc tions w ith re fe ren c e
to negroes in in tra s ta te tra v e l?
A. No.
Q. Since you h av e been police com m issioner, M r.
Connor, w hich I believe inc ludes not only since 1957,
bu t for m any, m any y ea rs before th a t, do you know of
negroes being a rre s te d for s itting in th e so-called w hite
w aiting room a t the B irm ingham T erm in a l S tation?
A. D uring m y te rm of office?
Q. Yes.
A. I don’t reca ll any.
Q. H ave you ever h ad any negroes a rre s te d for s it
ting th e re ?
A. No.
Q. M r. Connor, I believe th a t you as an officer of
th e C ity of B irm in g h am you a re sw orn to uphold the
law s of th e S ta te of A lab am a, is th a t co rrec t?
M r. B reckenridge:
We object.
The Court:
I su sta in th e objection.
157
Q. A re you fa m ilia r w ith the ru ling of the P ub lic
Serv ice C om m ission s ta tin g th a t th e re w ill be signs
designating colored w aiting room s and w hite w aiting
room s in th e ra ilro ad s ta tions of A labam a?
A. No, I am not fa m ilia r w ith it.
Q. A re you fa m ilia r w ith the ru ling of the Inter-j
s ta te C om m erce Com m ission in 1955 th a t th e re would
be, th a t th e re should be no segregation in th e w ait
ing room fac ilitie s in A labam a?
M r. B reckenridge:
We ob ject as assum ing, m ak ing an assum ption of
w hat the In te rs ta te C om m erce ru lings w ere.
The Court:
L e t th e w itness answ er for h im self. I overru le the
objection.
The W itness:
R epea t the question.
Q. Do you know of th e ru ling of the In te rs ta te
C om m erce C om m ission in 1955 s ta tin g th a t th e re shall
be no seg regation in the w aiting room s of th is coun
try?
A. No, they d idn ’t send m e an o rder.
Q. You know nothng about it?
A. .No.
Q. M r. Connor, if a police officer a rre s te d a negro
fo r s itting in the so-called w hite w aiting room or the
room a t the B irm ingham T erm inal S ta tion designated
in te rs ta te and w hite p assen g ers w aiting room , for s itj
ting in th a t w aiting room , w ould you tak e any action
ag a in st th a t police officer?
158
Mr. B reckenridge:
We ob ject to th a t.
The Court:
S u sta in the objection.
Q. M r. Connor, w h a t if any, is the policy of the
City of B irm in g h am w ith reference to seg reg a tio n in
th e w aiting rooms a t the B irm in g h am T erm inal S ta
tion?
M r. B reckenridge:
We ob jec t to th a t. The policy of the C ity is em
bodied in its o rd inances and in s tru c tio n s to its of
ficers.
The Court:
W ell, th a t of course is tru e . I su sta in th e objection.
Q. Do you h ave any policy w ith re fe ren c e to segJ
regation?
M r. B reckenridge:
We ob ject to th a t on the sam e grounds.
The Court:
If th e re a re any ord inances th a t you know of th a t
req u ire tha t.
The W itness:
T hat I know of I would have to an sw er th a t no.
Q. You don’t know of any ord inances?
A. N ot th a t I know of. I couldn’t re p e a t them .
159
Q. M r. Connor, I th ink on m an y occasions you
have s ta ted th a t you in tend to m a in ta in segregation
in the T erm in a l S tation W hat, if any th ing , h av e you
done to c a r ry out th a t s ta te m e n t?
Mr. B reckenridge:
W e ob jec t to th a t, based on th e assum ption of fac ts
not in evidence an d calls fo r a conclusion.
The Court:
I su sta in the objection.
Q. L et m e ask you ano ther w ay. M r. Connor, on
m any occasions you h ave sta ted th a t you in tend to
m a in ta in seg reg a tio n in th e T erm in a l Station. Is th a t
not co rrec t?
M r. B reckenridge:
We ob ject to th a t un less the occasion is spotlighted,
w hen it w as.
The Court:
W ell, I su sta in th a t objection.
Mr. A dam s:
We except.
Q. M r. Connor, as Police C om m issioner, h av e you
done any th ing to m a in ta in seg regation?
M r. B reckenridge:
We object.
Q. H ave you m ad e any specific ac t w h a tso ev er to
m a in ta in seg regation in the T erm inal S tation?
160
M r. B reckenridge:
We object to th a t.
The Court:
I sustain .
M r. A dam s:
Judge, I w ould like to m ak e one s ta te m e n t about
th a t question. I un d ers tan d the ru ling of th e C ourt
th a t the only w ay we can prove th is policy, custom ,
and usage is by specific ac ts w hich the person in
ch a rg e would h av e done, and so I am ask ing h im h a s
he done any th ing . If he h as done nothing th e re a re
no specific ac ts w hich constitu te the policy.
The Court:
You h av e asked h im the p rec ise question as to w hat
in s tru c tio n s he has given people un d er h im about w hat
to do and he h as sa id th a t he has g iven none. Now
I don’t know. Of course any u tte ran ces m ade a t a
tim e when he w as not holding office would be of no
consequence so I believe th a t you have p re tty n ea rly
exhausted th a t questioning. If th e re is an o rd inance
w hich w as en ac ted th a t is ev idence and I know of
none, and th e re h as none been shown so fa r. I don’t
know how fa r you m ay go. H ow ever, you m ay ask
y o u r questions and I w ill ru le on them .
Q. Since you have held office, M r. Connor, have
you m ad e any s ta tem en t officially about w hat you
w ill do or have done to m a in ta in segregation in the
Term inal S tation?
M r. B reckenridge:
We ob ject to th a t.
161
The Court:
I o v erru le it.
A. N ot th a t I know of.
Q. You have m ad e no s ta tem en ts?
A. N ot th a t I reca ll.
Q. Mr. Connor, you don’t say h ere th a t the police
officers w hen they a rre s te d , or if they a r re s te d —a s
sum ing, M r. Connor, th a t th e re have been som e ar-J
re s ts for s itting in th e w hite w aiting room by police
officers of the City of B irm ingham , would you say
th a t th a t w as w ithout p ro p er au thority?
Mr. B reckenridge:
We object to th a t.
The Court:
I su sta in the objection.
Q„ H ave any of the police officers com m unica ted
w ith you, M r. Connor, in any w ay concern ing any
a r re s ts m ad e of persons in the B irm ingham T erm in a l
S tation, negroes, for s itting in the w hite w aiting room ?
A. Any police officers?
Q. Yes.
A. They don’t rep o rt to me.
Q. H as the Chief-of-Police rep o rted any such inc i
den ts to you?
A. He h as not.
Q. M r. Connor, I believe the police o fficers of the
City of B irm ingham have th e au th o rity to a r re s t for
violation of the City O rdinance, concerning d iso rderly
conduct, is th a t not tru e?
162
M r. B reckenridge:
We object to tha t.
The Court:
I know th a t they do have. I know th a t jud ic ia lly
b ecause th a t is w hat the Code of A labam a prov ides
bu t I w ill p e rm it the question.
The W itness:
W hat w as th e question?
Q. The question w as, M r. Connor, do the Birm ing-'
h am police o fficers h ave th e au th o rity to a r re s t p e r
sons u n d er th e D iso rderly Conduct S ta tu te of th e City
of B irm ingham ?
A. They ta k e an oath w hen they tak e a job to a r
re s t anybody v iolating the law .
Q. Mr. Connor, do you, as a police officer, of the
City of B irm in g h am in te rp re t s itting in th e T erm in a l
S tation by a neg ro in the so-called w hite w aiting room
a v iolation of the D iso rderly Conduct S tatu te?
M r. B recken ridge:
W e ob jec t to th a t. I t calls for a conclusion.
The Court:
W ell it does, bu t I am going to perm it the question.
The W itness:
R epea t the question.
Q. M r. Connor, do you consider a negro sitting in
th e w hite w aiting room in th e B irm ingham T erm in a l
S tation a violation of the City of B irm ingham Dis-1
o rderly Conduct S ta tu te?
163
A. It depends on w hat he is doing w hen he is s it
ting there .
Q. If he is doing noth ing bu t s itting th e re?
A. I t depends on w h a t he says.
Q. I am say ing if he says nothing b u t ju s t sits
there .
A. I would have to ta lk to the City L ega l D e p a rt
m ent before I could answ er th a t question. I am no
law yer.
Q. You don’t know w h eth er it w ould be or not?
A. T h a t is righ t. I am no law yer.
M r. A dam s:
T hat is all.
The Court:
Any o ther questions?
R e-D irec t E xam ination .
(By M r. B reck en rid g e ):
Q. M r. Connor, in 1956, in D ecem b er of 1956 w hen
th e P la in tiffs in th is case w ere a rre s te d w ere you
C om m issioner of P ub lic Safety of the City of B irm ing-'
ham ?
A. No, sir.
Q. H ave you g iven any in struc tions to th e T erm i
n a l au tho rities a t th e T erm in a l S ta tion re la tiv e to the,
to negroes s itting in the w aiting room m a rk e d in te r
s ta te and w hite w aiting room?
A: No, sir.
M r. B reckenridge:
T hat is all.
164
The Court:
Any questions by any o th e r defendan t?
Mr. M adison:
No.
M r. Rountree:
No questions.
The Court:
Now, gen tlem en , I do not know w h a t the order of
your ev idence m ay be. I a ssu m e M r. Connor m ay be
excused.
M r. B recken ridge:
We w ere going to ask th a t Y our Honor.
The Court:
He m ay be excused . I am going to have to go down
and confer w ith Ju d g e R ives today on a th ree -Ju d g e
case and I w ill have to rece ss th is tr ia l. I don’t know
w hat the order of your ev idence is, bu t I am going
to rece ss th is un til te n o’clock on M onday m orn ing
in view of the fa c t th a t I have a case set a t n ine in
the m orning in w hich all of th e p a rtie s and w itnesses
a re out of th e s ta te . So we w ill rece ss th is hearing
un til te n o’clock M onday m orning . M r. Connor, you
a re excused.
(W hereupon a t 12 o’clock noon a rece ss w as taken
un til nine o’clock a .m ., on M onday, N ovem ber 2, 1959.)
Ten o’clock a .m .—M orning Session—N ovem ber 2, 1959.
165
The Court:
In the case on tr ia l the p la in tiffs h ad re s te d su b jec t
to th e exam ination of Mr. Taylor. M r. T aylor is here
th is m orn ing and w e w ill pu t h im on rig h t now.
F R E D TAYLOR, hav ing been duly sw orn, te stified
as follows:
D irect E xam in a tio n .
(By M r. N ew ton):
Q. S ta te your nam e, p lease, sir?
A. F re d Taylor.
Q. W hat is your occupation, M r. T aylor?
A I am a new spaper m an , w orking for th e B ir
m in g h am News.
Q. W ere you, on or about J a n u a ry 18, 1958, so en
gaged in the new spaper business?
A. Yes.
Q. A re you p ersonally acqua in ted w ith M r. C. C
(Ja c k ) O wens?
Mr. M adison:
If Y our H onor p leases, w ithout in te rru p tin g w e w ish
to ob ject to h e a rsa y evidence.
The Court:
T hat objection follows to each question w ithout b e
ing renew ed and I re se rv e my ruling.
Q. Now, s ir, do you reca ll on or about J a n u a ry 18,
1958 a tten d in g a m ee tin g a t C rossville , A labam a?
A. Y es, I covered a m eeting there .
166
Q. I show you, s ir, th is P la in tif f s E x h ib it 6, under
your byline. D id you w rite th a t a rtic le ?
A. Yes.
Q. I quote for you th e following: “ Today our
tra in s , buses, w aiting room s and schools a re still seg-t
rega ted . T h a t is the w ay you w an t it. T h a t is the w ay
I w an t i t and th a t is th e w ay i t is going to b e .” D id
you p e rso n a lly h e a r M r. Owens m a k e th a t s ta tem en t?
A. Y es, to the b e s t of m y reco llection I w as p re s
ent and h e a rd h im m a k e th a t s ta tem en t. I w rote th a t
s to ry and th a t is a c o rrec t rend ition of w h at he sa id
so f a r as I can rem em b er. I am su re it is righ t.
M r. Newton:
T hank you, sir. I believe th a t is all.
C ross E xam ination .
(By Mr. M adison):
Q. W here w as th e s ta te m e n t m ade, M r. T aylor?
A. A t C rossville out on Sand M ountain, N orth A la
b am a.
Q. W hat w as th e occasion of th a t s ta tem en t?
A. I believe it w as th e F a rm B u reau R ally .
Q. W ould you te rm w h at w as going on as being a
po litica l ra lly ?
A. It w as a public m eeting . I t w as not n ece ssa rily
a p o litica l ra lly . I t w as a F a rm B u reau m eeting and
he w as inv ited th e re as a speaker.
Q. W as M r. Owens a t th a t tim e running for office?
A. W ell, a t th a t tim e M r. Owens h a d not qualified
bu t it h ad been p re tty w idely published th a t he would
b e a can d id a te fo r G overnor-.
Q. D id he la te r ru n for G overnor?
A. In th e sam e y ear, yes, sir.
167
M r. M adison:
T h a t is all.
R e-D irect E x am ination .
(By M r. N ew ton):
Q. Do you know w hat official cap ac ity , if any, Mr.
Owens held a t th a t tim e?
A. At th a t tim e he w as P re s id en t of the A lab am a
P ub lic Serv ice Com m ission.
M r. Newton:
T hank you, s ir. We offer th a t a r tic le as an exhibit.
The Court:
A ny other questions of Mr. Taylor? Any objection
to M r. Taylor being excused? You a re excused, M r.
T aylor. N ext w itness for the defendant.
M r. A dam s:
Ju d g e , I w an ted to offer ag a in the deposition of Dr.
Ju a n ita P itts , w hich has been rece ived by the C lerk’s
Office th is m orning from the officer reporting sa id
deposition. I know the Jud g e su sta in ed the m otion to
supp ress th is deposition, and it w as m y u nders tand ing
it w as on b as is of the fa c t th a t it had not been sen t
under sea l d irec tly to the C le rk ’s Office.
The Court:
T hat w as the basis upon w hich I excluded it, the
fac t it h ad not been m ailed by th e officer tak ing the
deposition as requ ired by the rules.
M r. B reckenridge:
We would like to renew our objection to the intro-*
duction on the ground it w as not p rom ptly m ailed by
168
the officer to the C ourt th a t p rio r to the t r ia l of th is
case it w as not on file in th e office of the c lerk so
as to be ava ilab le to the defendants, th a t Subdivision
3 R ule 30-F of the R ules of Civil P ro ced u re p rov ides
th e p a r ty tak in g th e deposition sha ll give p ro m p t no
tice of its filing to th e other p a rty . B efore we en tered
into the tr ia l it w as not on file. The defendan ts ad
m itted ly have rece ived no notice of it. If it w ere on
file we would be p e rm itted un d er the law to fu rn ish
reb u tta l te stim ony if such w as needed . U nder the cir->
cu m stan ces now we don’t know w h at is in it. It w as
not p roperly or p rom ptly filed and notice w as not
given. I t would be a serious d isad v an tag e to try to
p roceed w ith th e case w ith th a t in evidence w ithout
the chance to offer re b u tta l testim ony .
The Court:
I am going to ad m it the deposition and I w ill a f
fo rd an opportun ity to counsel to b ring fo rw ard any
reb u tta l te stim ony th a t they see fit to produce.
M r. M adison:
W ill Y our Honor give us an objection?
The Court:
O bjection by each of the defendants.
(P la in tiff’s E xh ib it 10 m arked for identification.)
Mr. A dam s:
As I understood it w as not n ecessary to read it?
The C ourt:
That is correct.
169
M r. A dam s:
Judge, the P la in tiff a t this tim e rests the ir p resen
ta tion .
Mr. R ountree:
M ay it please the Court, the T erm inal Com pany has
two m otions they would like to m ake at this time.
The Court:
A t the conclusion of the P la in tiff’s ev idence—
Mr. Adams:
Judge, we have one other m atter. I m ight have been
a little p rem atu re . T here w as one w itness I w anted
to ask one question. Mr. Caldwell.
J . C. CALDW ELL, hav ing been previously sworn,
w as reca lled and testified fu rth e r as follows:
Cross Exam ination.
(By Mr. A d a m s ) :
Q. Mr. Caldwell, I th ink you have a lre ad y been
sw orn and you testified th a t you were Superin tendent
of the T erm inal Station located here in B irm ingham .
That is correct, isn’t it?
A. T hat is correct.
Q. Mr. Caldw ell, the persons who sell tickets at
the Term inal S tation are they employees of the T e r
m inal Com pany?
A. They are.
Mr. A dam s:
That is all.
170
M r. Rountree:
No questions a t this time.
The Court:
Now the record may show th a t at th e close of the
P la in tiff’s evidence each of the defendants is given
the rig h t to file a motion. Is your m otion in w riting?
Mr. R ountree:
Yes, sir.
The C ourt:
I am going to re se rv e my ru ling on the motion.
Mr. R ountree:
I have two. One is under 41B in w riting which I
w ill file. The other m otion I would like to m ake o ra l
ly if the Court pleases. As to th e defendant B irm in g
ham Term inal I would like to m ove to exclude from
the record evidence of any events tak ing p lace after
Jan u a ry 25, 1957 on which d a te th e com plaint w as
filed. L eaving out the question of cred ib ility assum ing
th a t a case had been m ad e out up to the tim e of the
filing of the com plaint as to the Term inal, there is
no evidence of any ac tion on its p a r t on Ja n u a ry ’57
or p rio r there to and it is our position as to B irm in g
ham Term inal tha t as to years th a t evidence as to
years th e rea fte r is inadm issible.
The C ourt:
I am going to reserve m y ru ling bu t I w ill m ak e th e
s ta tem en t th a t under the opinion of the F if th C ircu it
Court of Appeals by which I am bound, there is no
case a t all aga in st the B irm ingham T erm inal Com-
171
pany. I th ink th a t is c lea r. T h a t is m erely an expres
sion of m y opinion a t th is stage, b u t I a m going to
reserve m y ruling.
M r. Madison:
Your H onor, w e would like to m ake a m otion, we
move to dism iss for the lack of evidence.
The Court:
I th ink each defendan t would like to m ake th a t m o
tion and I am reserv ing my ruling.
M r. A dam s:
I th in k you indicated both sides had a r ig h t to m ake
a m otion and w e w an t to m ake one fo r a decree in
favor of the p la in tiff ag a in st a ll defendants.
The C ourt:
I don’t w an t to h ear those m otions now because I
am going to tak e th e m otions w ith the case. I am
going to w rite an opinion.
Mr. B reckenridge:
Would it be n ecessary to m ake an o ra l m otion w hich
I would like to do a t th is tim e—does Y our Honor in
dicate th a t he reserves the ru ling on th e m otion th a t
th e com plaint be dism issed under R ule 41B?
The Court:
T here is a Rule 41B m otion in behalf of a ll defend
ants and the ru ling of the C ourt is reserved.
Mr. Adams:
Judge , one other thing. We had several exhibits. I
am not sure, b u t out of abundance of cau tion I would
like to offer those exhibits.
172
The Court:
All exhibits w hich have been offered, w hich h ave
been identified. T here w as one deposition w hich w as
the deposition of some w itness I believe from A rk an
sas th a t w as excluded.
M r. Adams:
Yes, sir.
The C ourt:
But all o thers which have been identified a re of
fered in evidence and rece ived in evidence. Is th re
and fu rth e r evidence on behalf of the defendants?
Mr. R ountre:
M ay it please the Court, I w ould like to re c a ll M r.
Caldwell for one m om ent to m ake it clear on the
rco rd as to th e physica l a sp ec t of th e w aiting room.
We used a b lack b o ard w hich is not in evidence and
I w an t to m ake the record com plete.
The C ourt:
All righ t.
J . C. CALDW ELL, hav ing been p rev iously sw orn,
was reca lled and testified fu r th e r as follows:
D irec t E xam ination .
(By M r. R ountree):
Q. M r. Caldwell, I show you a rough sketch p re
pared by m e and ask you w h e th e r th a t is a fa ir rep
resen ta tio n of the p h ysica l layout of the w aiting room
173
a t the B irm ingham Term inal C om pany in which is
lo ca ted the tick e t office?
A. I t is.
Q. On th is I have tw o points m arked A and B.
Do these represent the m ain doors to th e w aiting
room ?
A. A represen ts the one from the t r a in and th e
m ain en tra n ce B is on the 26th S treet side opposite
the sam e entrance.
Q. I show you P la in tif f ’s E x h ib it 9, showing a sign
“W aiting Room In te rs ta te and W hite In tra s ta te P a s
sengers” w ill you te ll us w hat points on th is exhibit
this sign is placed?
A. They are over doors A and B.
Q. I show you places on th is m arked G, H, I, J ,
and K. Do these rep resen t doors of the w aiting room
also?
A. They do.
Q. Is there a s im ilar sign under any of these
doors?
A. No.
Q. Or over any of these doors?
A. No.
Q. Has th e re ever been?
A. No.
Q. I show you points m arked C and D w hich rep
resen t doors into the w aiting room from the side. Is
there a s im ilar sign, has a s im ilar sign ever been
over either one of those doors?
A. Yes, sir.
Q. Is th e re one th e re now?
A. No.
Q. W ould you tell the Court w hat the area m arked
E on th is sketch rep resen ts?
174
A. T h a t represents the tick e t office.
Q. And the a re a m ark ed F ?
A. B aggage room.
Q. I show you these draw ings on this sketch m arked
L. W hat do they rep resen t?
A. Seats.
Q. T hat is in the south p a r t of th e w aiting room ?
A. Yes.
Q. Is the re a s im ila r seat a rran g em en t in the north
p a r t w hich I have not shown?
A. Same arrangem ents, six seats .
Q. As ind icated by the sketch, the w aiting room,
is a longitudinal room, running longitudinally in a
no rth and south direction?
A. C orrect.
Q. You testified about this before, bu t w ill you
again testify the approx im ate d is tance from door A
dow n to the ticke t booth?
A. Com ing in door A and tu rn ing le ft tow ards the
ticke t office the aisle is approxim ately 75 to 80 feet.
M r. R ountree:
I offer the ske tch and exhibit in evidence as De
fendan t B irm ingham T erm inal Company E xh ib it # 1 .
Mr. Newton:
Let the reco rd show we object to th e adm issibility
of that.
The C ourt:
I overru le the objection.
Mr. Newton:
We except.
175
(B irm ingham Term inal E x h ib it # 1 m ark ed for iden
tification. )
JA M IE M OORE, having been duly sworn, te stified
as follows:
D irect E xam ination.
(By M r. B reckenridge):
Q. G ive us your nam e for the record , please?
A. My n am e is Jam ie Moore.
Q. W hat is your occupation?
A. I am Chief-of-Police of the C ity of B irm ingham .
Q. How long have you been em ployed by the City
of Birm ingham ?
A. I am sta rtin g my 24th year.
Q. B eginning your 24th year?
A. Yes.
Q. You say you a re now Chief-of-Police of the City
of B irm ingham ?
A. Yes.
Q. How long have you been Chief-of-Police of the
City of B irm ingham ?
A. I have been Chief and A cting Chief-of-Police
since ea rly N ovem ber 1955.
Q. Since N ovem ber of 1955?
A. Yes, sir.
Q. You w ere Chief-of-Police in Decem ber of ’56?
A. Yes, sir.
Q. H ave you issued any instructions to officers rel
a tive to negroes sitting in the w hite in te rs ta te and
w hite w aiting room a t the Term inal S tation?
A. Yes, sir, I have.
176
Q. W hat a re those instructions?
A. Those instructions a re th a t negroes who are
trav e llin g in in te r s ta te , passengers, no t to bother
them, not to m ake an a rre s t.
Q. Not to m ake an a r re s t?
A. Yes, sir.
Q. H as th e re been any a r re s ts m ad e since D ecem
ber 1956 of negroes for s itting in the w hite w aiting
room , w hite and in te rs ta te w aiting room a t the T er
m inal Station?
A. No, sir.
Q. Chief, did you issue any in stru c tio n s or make
requests to any employee or m anager of the T erm i
nal R ailroad S tation re la tiv e to negroes sitting in the
in te rs ta te and w hite w aiting room?
A. No, s ir, I haven’t.
Q. Do you know of any such instruc tions or re
quests being m ade by anyone connected w ith the City
of B irm ingham ?
A. No, sir, I don’t.
Q. W hich Commissioner has supervision, d irec t
superv ision of the Police D epartm ent?
A. The Com m issioner of P ub lic S afety and th a t is
C om m issioner Connor.
Q. Comm issioner Connor?
A. Yes, sir.
Q. And the Police D epartm en t is w ith in th is de
partm en t?
A. Yes, sir.
Q. Is th a t correct?
A. T hat is correct.
Q. I w ill ask you w hether Mayor M organ has any
direct supervision over the P o lice D epartm ent?
A. As fa r as d irec t supervision I would say no.
177
Q. I w ill ask you w hether Commissioner W aggoner
h as any direct supervision over the Police D epart
m ent?
A. No, sir.
M r. B reckenridge :
That is all.
Cross E xam ination .
(By M r. N ew ton):
Q. Mr. Moore, in giving your in struc tions not to
a r re s t any negroes in the Term inal Station who w ere
in tersta te passengers, did you ask your officers to ex
am ine the ir tick e ts to determ ine if they w ere in te r
sta te passengers or not?
A. My instructions w ere if they received a ca ll to
ask the p a r ty they w ere com plaining again st if they
w ere trave lling in te rs ta te and to see th e ir ticket.
Q. Now since, a re you fam ilia r w ith the In te rs ta te
Com m erce C om m ission ruling of 1955?
A. I don’t th ink so.
Q. W ell, sir, you have been A cting Chief then since
1955, sir, and Chief-of-Police?
A. That is right.
Q. Now during th a t period of tim e have you m ade
any other a rrests other than the ones you testified on
direct a m om ent ago?
A. Yes, sir, I have made a good m any a rres ts . Do
you m ean perta in ing to—
Q. P e rta in in g to the w aiting room.
A. I have not.
Q. Do you know w hether th e re have been any a r
rests a t all m ade of negroes sitting in the In te rs ta te
and w hite w aiting room s since D ecem ber of 1956?
178
A. I don’t know of any bu t I am su re as Chief
I w ould know if som e had been made.
Q. Now, sir, i t is a long-standing custom in our
city th a t negroes and w hites occupy d ifferen t w aiting
room s in our ra ilw ay and bus stations, is that tru e?
A. Did you say a custom ?
Mr. B reckenridge:
We ob ject to th a t, calls for a conclusion.
The C ourt:
Sustain the objection.
M r. Newton:
We except.
Q. H ave you issued any orders as to w hether an
in tra s ta te passenger sitting in the w aiting room
m arked in te rs ta te and w hite passengers , have you is
sued any orders to your officers concerning those p e r
sons?
A. I have not.
Q. By whose direction, s ir, did you issue th a t order
to determ ine if a passenger w as an in te rs ta te passen
ger in the w aiting room m a rk e d in te rs ta te and w hite
passengers.
Mr. B reckenridge:
We ob ject to th a t. I t assum es th a t he issued some.
The C ourt:
I overru le it. Did anybody te ll you tha t?
179
The W itness:
Comm issioner Connor w as of course fam iliar w ith
th e order. I discussed it w ith him bu t so fa r as telling
m e d irec tly to issue it I w ould say it w as m y own
o rder w ith his consent.
Q. W hat w as the basis upon which you issued th a t
o rder ?
Mr. B recken ridge:
We object to that.
The C ourt:
S usta in it.
Mr. Newton:
We except.
Q. Isn’t it a fa c t th a t you w ith the consent of Mr.
Connor, issued th a t order as a d irect resu lt of the
ru ling of the In te rs ta te Com m erce Commission?
Mr. B reckenridge:
We object to th a t, calls for a conclusion of the w it
ness.
The Court:
Well, I overrule it. W as the In te rs ta te C om m erce
Commission o rd e r discussed?
The W itness:
Not a t th a t time, no, sir.
Q. Well, sir, w as the order a resu lt of that ru ling?
180
Mr. B reckenridge:
We object to th a t.
The Court:
I sustain the objection.
Mr. Newton:
We except. I believe th a t is all.
The Court:
N ext witness. Is there any objection to excusing Mr.
Moore?
M r. Newton:
None.
W. J . H ALEY, hav ing been first duly sworn, te sti
fied as follows:
D irect E xam ination.
(By Mr. B reck en rid g e):
Q. Give us your nam e for the record, please, sir?
A. W. J. Haley.
Q. By whom are you employed?
A. City of B irm ingham Police D epartm ent.
Q. In w hat capacity?
A. C aptain of Personnel.
Q. C ap ta in of P ersonnel?
A. Yes, sir.
Q. How long h av e you been employed by the City
of B irm ingham in the Police D epartm ent?
A. A little over 21 years.
181
Q. W ere you em ployed by the C ity of B irm ingham
in D ecem ber of 1956?
A. I was.
Q. In w hat cap ac ity w ere you employed then?
A. C aptain of D etective D epartm ent.
Q. C ap ta in of the D etective D epartm ent?
A. Yes.
Q. On or about, I m ean w ere you em ployed by the
City of B irm ingham on or about M arch 6, 1957?
A. I was.
Q. In w hat capacity?
A. Sam e capacity , C ap ta in of D etectives.
Q. Captain, I w ill ask you if in th e perform ance
of your duties on or about M arch 6, 1957 you h ad any
occasion to observe any negroes in the w aiting room
a t the T erm inal S tation m arked in te rs ta te and w hite
w aiting room?
A. I did.
Q. Will you tell us w h at th a t occasion w as? Do you
know who th e negroes you observed w ere?
A. I do.
Q. Who w ere they?
A. Reverend Shuttlesw orth and his wife.
Q. W hat w as th e occasion for your observation of
these people?
A. I w as detailed to answ er a com plaint a t the
Term inal Station.
Q. Do you know w here th a t com plaint c am e from ?
A. No, sir, I do not.
Q. W hat did you find w hen you got to the T erm in a l
Station?
A. I found a la rg e group of people in the S ta tion
and outside the sta tion I found the officer who w as
on duty a t th a t p a r tic u la r tim e. T here w ere sev era l
officers th e re and I th ink a couple of patrolm en and
182
they had checked the R everend Shu ttlesw orth ’s ticke ts
and h is w ife’s ticket to m y best recollection. Shu ttles
w o rth ’s tick e t was to A tla n ta and his w ife’s w as to
A nniston, A labam a.
Q. W hat w as the crowd doing a t th a t tim e , if any
th ing ?
A. They w ere m illing about on the outside and on
th e inside and th e officers w ere checking the ind i
viduals inside of the sta tion and I in s tru c ted them to
rem ove all who h ad no business in the sta tion who
w ere no t employees and d idn ’t have a tick e t or d idn’t
have some business in th e station.
Q. Did you in s tru c t th e R everend Shuttlesw orth and
h is wife to leave the w aiting room?
A. I did not.
Q. Did they rem ain in the w aiting room?
A. They did.
Mr. B reckenridge:
I th ink th a t is all.
Cross E xam ination .
(By Mr. A dam s):
Q. Y our nam e ag a in w as w hat?
A. C aptain Haley.
Q. Captain H aley?
A. Yes.
Q. C aptain H aley I believe you testified tha t R ev
erend F . L. S huttlesw orth w as in the T erm inal S ta
tion on M arch 6, 1957 bu t th a t he w as not a rres ted ,
is th a t correct?
A. I don’t reca ll w hether it w as M arch 6th or w hat.
I t was in the Spring. I did not m ake any notes of it.
183
I am having to testify from my independent recollec
tion.
Q. Now, L ieu tenant Haley, R everend Shuttlesw orth
is known to you, isn ’t he?
A. T hat is righ t.
Q. As an in teg ration leader?
M r. B reckenridge:
We object to th a t, calls for a conclusion, irre lev an t
and im m ateria l.
Mr. A dam s:
I ju s t w ant to know in w hat capacity he know s him.
The C ourt:
I overru le the objection.
Mr. B reckenridge:
We except.
Q. Is th a t correct?
A. I have had occasion to ta lk w ith him w ith re f
erence to this personally .
Q. Do you know who else w as in the S tation w ith
R everend Shuttlesw orth and his w ife on th a t occasion?
A. L a te r after I got there Hom er W eaver, a w hite
man, did come over and ta lk to me.
Q. And he w as arres ted ?
Mr. B reckenridge:
We object to th a t as irre le v a n t and im m aterial.
The Court:
I su sta in th a t.
184
M r. Adams:
I w as m erely try ing to show tha t they w ere a rres t
ing h im for being in the w rong w aiting room.
The C ourt:
I sustain it.
Q. Let s see, Captain H aley, you have been a re s i
dent of B irm ingham for how long?
A. Since 1923, approx im ate ly 36 years .
Q. I believe you say you have been w ith the Police
D epartm en t about 24 years, is tha t correct?
A. Twenty-one years.
Q. Twenty-one years. And you are now C ap tain of
personnel?
A. T hat is correct.
Q. Do you know or have you issued any o rders w ith
reference to segregation in the w aiting room s p a r
ticu la rly a t the T erm inal S tations w ith reference to
in tra s ta te passen g ers as C ap ta in of personnel?
M r. B reckenridge:
We object to th a t unless it is lim ited to the T er
m inal Station.
The Court:
I believe he did lim it it to tha t.
M r. A dam s:
Yes, sir.
The Court:
I ov erru le the objection.
185
A. Only in th is one p a r tic u la r in s tan ce in 1957 I
gave in struc tions to not to m ak e an a r r e s t for th a t
specific offense unless the, un less he perfo rm ed som e
d isorder.
Q. I believe there has been an o rd e r issued I th in k
you te stified w ith reference to in teg ra tio n and se g re
gation of in te rs ta te passengers, isn ’t th a t co rrec t?
A. There has been, bu t they w ere not issued by
m e.
Q. A re they in w riting?
A. Not to m y know ledge. I have not seen them .
Q. So fa r as you know they a re v erbal?
A. T hat is co rrec t.
Q. H ave you h ad any occasion to have v isited the
T erm inal S tation since D ecem ber of 1956?
A. I seldom pass, to buy a new spaper, a pack of
c ig a re tte s , not on any com plain ts.
Q. Did you see any negroes in the so-called w hite
and in te rs ta te passen g er w aiting room on those oc
casions?
A. T hat is th e only tim e w as w hen R everend Shut-
tlesw orth and h is w ife w ith him .
Q. You testified th a t you had been in th e re to buy
new spapers and possib ly o ther occasions only they
w ere few occasions, bu t did you see any negroes on
those occasions?
A. N ever have.
Q. I believe you sa id th a t th e re w ere o rd ers issued
not to m ake any a rre s ts on th a t p a r tic u la r offense.
C ap ta in H aley, w hat p a r tic u la r offense w ere you r e j
ferring to a t th a t tim e?
A. The occasion th a t the R everend S huttlesw orth
and his wife w ere s itting in th e w hite w aiting room.
Q. I believe C om m issioner L indbergh w as C om m is
sioner a t th a t tim e, w a sn ’t he?
186
A. T hat is correct.
Q. Do you know w h eth er any o rd e rs h av e been is-
sud to a r r e s t neg roes for sitting in th e so-called
w hite and in te rs ta te p assen g ers w aiting room for d is
o rderly conduct?
A. Not to m y know ledge un less it w as a d iso rd erly
conduct offense, not for ju s t s ittin g th ere .
Q. In other w ords, you don’t have any know ledge
of any of th a t w hether it w as done or w as not done?
A. No.
Q. As C ap ta in of P erso n n el is it your responsib ility
to give to the police o fficers th e o rders com ing from
the Chief-of-Police and the C om m issioner of Police?
A. Not p resen tly . A t th a t p a r tic u la r tim e w hen I
w as C ap ta in of the D etec tive D epartm en t I w as th e
C om m anding O fficer or th e Senior O fficer p re sen t a t
the T erm in a l Station. As P ersonnel O fficer I am in
ch a rg e of rec ru itin g personnel, investigations. I am
O perations Officer, a t the p re sen t tim e. I w as a F ield
O fficer.
Q. But a t th a t tim e you w ere in th e responsib le
position officially?
A. In reference to th a t p a r tic u la r de ta il I w as the
Senior O fficer, p resen t.
Q. W hen did you cease to be such?
A. W hen I left th e station, I m e an I w as in charges
of the D etec tive B u reau and w as changed to personnel
officer on F e b ru a ry 1st, 1958.
Q,. F e b ru a ry 1st, 1958?
A. T hat is correct.
Q. And you rem ain ed in th a t position until 1958?
A. T hat is co rrect.
Q. C ap ta in H aley, do you re c a ll the a r re s t of Dr.
J u a n ita P itts w ith re fe ren c e to sitting in th e so-called
in te rs ta te and w hite p assen g e r w aiting room ?
187
A. I h av e no know ledge w hatsoever of th a t a r re s t.
I w as not p re sen t and gave no in stru c tio n s on it.
Q. T hen th e re could be a r re s ts of negroes for s it
ting in th is so-called w hite and in te rs ta te p assen g e r
w aiting room a t th e T erm inal S tation and you know
nothing abou t it?
A. I h av e no personal know ledge of anybody h av
ing been a rre s te d . They could have been a rre s te d and
it no t come to m y know ledge, b ecau se I am in the,
because I am not in th e p ro fessional end of it a t the
p re sen t tim e.
Q. B ut a t th e tim e you w ere the re th e re could have
been a rre s ts and you not know about th em ?
A. I don’t believe th e re could. T here is a possib ility
because I d idn ’t get all th e rep o rts th a t cam e from
the P a tro l D ivision. I re a d I w ould say 90 percen t of
the rep o rts . The Chief-of-Police got a ll of the reports.
I d id n ’t get all of the P a tro l R eports, bu t w hen an
offense or an incident w as pu t on a teletype.
Q. Do you know w h e th e r th e re h as been any
change in the , I believe you testified th a t, no I be
lieve th e re w as an objection susta ined to the ques
tion of custom . But a re you fa m ilia r w ith th e policy
of th e City of B irm in g h am w ith reference to seg rega
tion in the in te rs ta te and w hite p assen g er w aiting
room ?
M r. B reckenridge:
We ob ject to th a t.
The Court:
I su sta in it.
188
Q. A re you fa m ilia r w ith, C ap ta in H aley, w ith the
ru lings of the In te rs ta te C om m erce C om m ission w ith
re sp ec t to seg reg a tio n in the w aiting room fac ilites?
' A. I am .
Q. Do you know w hen th a t ru ling cam e out?
A. It w as p rio r to th is date, se v e ra l m onths. I am
not positive.
Q. P r io r to 1956?
A. To ’57.
Q. Now w hat, if anyth ing , has the City of Birm ing-'
h am done d ifferen tly w ith reference to the T erm inal
S tation since the In te rs ta te C om m erce Com m ission
ru ling?
M r. B recken rdge:
We object to th a t, calls fo r a conclusion and not
m a te ria l.
The Court:
I overru le .
A. D ifferent?
Q- W hat have they done w hich is d iffe ren t from
w h at they h ad done before the ru ling?
A. T hey have re fra in ed fro m m ak ing a r re s ts for
th a t specific type of offense. I t w as considered an of
fense p rio r to the ruling.
Q. I believe you te stif ied th en th a t the re h ad been
a r re s ts m ad e before th a t ru ling by the City of B ir
m in g h am concerning negroes in th e w hite and inter-1
s ta te p assen g e r w aiting room .
A. I w ould have to give you a conclusion on th a t.
I would have to assum e th a t th e re h ad been. Of my
own perso n a l know ledge I w as not in on any of the
a rre s ts . I d idn ’t d irec t any of th em and I cou ldn’t
189
say th a t th e re h ad been any m ad e because th e cus
tom had been observed and re sp ec ted I th ink by both
ra c e s w h ite and colored, too.
Q„ B ut you a re not say ing th a t th e re w ere none?
A. I c a n ’t say th a t th e re w as or th a t th e re w as
not because I have no p ersonal know ledge of it.
Q. Do you know w hether oh not C ap ta in H aley since
the ru ling th a t you say you know about, w h e th e r any
w hite persons s it in w hat h ad been know n as th e col
ored w aiting room ?
M r. B reckenridge:
We object to th a t.
The Court:
I su sta in th a t objection.
Mr. A dam s:
We except.
Q. I th ink you testified you did not know a t all
w hat H om er W eaver w as ch arg ed w ith, w ith reference
to his being in the T erm inal Station?
M r. B reckenridge:
We ob ject to th a t.
The Court:
I su sta in it.
Q. C ap ta in H aley, do you know w hether o r not nej
groes s it as a m a tte r of fac t in th e w hite and in te r
s ta te p assengers w aiting room a t the T erm in a l S ta
tion?
190
M r. B reckenridge:
We ob ject to th a t.
The Court:
I overru le it.
M r. A dam s:
You m a y answ er th a t.
A. I h av e no p e rso n a l know ledge. I h av e never seen
a negro in the w hite w aiting room a t th e T erm in a l
S ta tion or the bus s ta tion other th a n the occasion I
re la ted .
Q. Since th e In te rs ta te C om m erce Com m ission ruD
ing, h as th e Police D ep a rtm en t issued any o rders s ta t
ing th a t th e re should no t be any a r re s ts of negroes
who w ere in tra s ta te p a ssen g e rs s itting in the in te r
s ta te and w hite passenger w aiting room ?
A. I don’t know of any o rd e rs th a t have been given
on the in tra s ta te passen g ers .
Q. Do you know, C ap ta in H aley, abou t the order of
the A lab am a P ub lic Serv ice C om m ission issu ed in
F e b ru a ry of 1956 concern ing seg reg a tio n in the w a it
ing room fac ilities?
M r. M adison:
Now, w e ob ject to th a t on th e ground th a t it assum es
th a t th e o rd e r re la tes to it.
The Court:
S usta in th e objection to th e fo rm of the question.
M r. A dam s:
We except.
191
Q. C ap ta in H aley, do you know of th e o rd e r of the
A lab am a P ub lic S erv ice C om m ission dated F e b ru a ry
8, 1956 sty led C om m ission G en era l O rd er T-21? A re
you fam ilia r w ith th a t o rder?
A. Not by th a t descrip tion .
Q. I w ill le t you look a t it.
A. I h av e not read the o rder bu t read w h at w as in
the new spaper. I am not fa m ilia r w ith th a t.
Q. You a re not?
A. No.
Q. C ap ta in H aley, can you give a p re tty good tim e
as to when you know th a t the Police D e p a rtm e n t of
the City of B irm in g h am issued th e se o rd e rs w ith re f
erence to in te rs ta te passen g ers? Do you rem em ber
w hen th a t was?
A. The f irs t o ra l o rd er th a t I got w as from Com
m issioner L indbergh on the day th is p a r tic u la r inert
den t happened a t the T erm in a l Station.
Q. T h a t w as about M arch 1957, is th a t co rrect?
A. T hat is co rrect. H ow ever, I w as no t in th e P a
tro l D ivision th a t did th e field work. I w as in the
D etec tive D ivision w hich did the investiga tive o r fol
low-up on offenses, c rim es and so fo rth th a t h ad oc
curred . In other w ords, we w ere investiga to rs of th e
B irm in g h am Police D ep artm en t and not the en fo rce
m en t or p a tro l officers.
M r. A dam s:
I th ink th a t is all.
R e-D irec t E xam ination .
(B y M r. B recken ridge):
Q. C aptain , I w ill ask you w h eth er or not you know
of any a r re s ts of negroes w ith in tra s ta te ticke ts a t the
192
T erm inal S tation for sitting in th e in te rs ta te and w hite
w aiting room ?
A. I do not know of it.
Q. And I believe you te stified the day th a t in s tru c t
tions w ere issued to o fficers not to bo ther any ne
groes s ittin g in the in te rs ta te and w hite w aiting room
a t the T erm in a l S tation who had in tra s ta te tick e ts
w ere issued in Decem ber of 1956 on the d a te abou t th e
tim e of the a rre s ts , a fte r th e a rre s ts of the p lain tiff.
Is th a t co rrec t?
A. I have no know ledge of those p a r tic u la r a rre s ts .
Q,. B ut it w as in D ecem ber of 1956?
A. I don’t know th a t. I h ave no p ersonal know l
edge of those p a r tic u la r a r re s ts a t all.
Q. I believe you sa id you knew of no negroes s itting
in the in te rs ta te and w hite w aiting room a t th e Ter-1
m inal S tation o ther th a n the ones w ith in te rs ta te tick
ets. Is th a t correct?
A. Y es, sir.
M r. B reckenridge:
Tha is all.
The Court:
N ext w itness. M r. H aley m ay be excused un
less th e re is some objection.
Mr. A dam s:
No objection.
The Court:
All righ t, you m ay be excused.
193
H EN R Y W ILLIAM SH A FFN E R , JR ., hav ing been
duly sw orn, testified as follows:
D irec t E xam ination .
(By M r. B reck e n rid g e ):
Q. Will you give us your fu ll n am e for the record .
A. H enry W illiam S haffner, J r .
Q. Who a re you em ployed by?
A. City of B irm ingham .
Q. In w h a t capacity?
A. As a pa tro lm an .
Q. How long have you been em ployed by the City
of B irm ingham ?
A. E ig h teen y ea rs .
Q. E igh teen y ears?
A. Yes, sir.
Q. Now, w hat are your present duties w ith the City
of B irm ingham ?
A. P a tro lm a n in P a tro l C ar 13.
Q. P a tro lm a n in P a tro l C ar 13?
A. Yes, sir.
Q. In operating th a t p a tro l c a r do you have a route
or a rea?
A. Yes, sir.
Q. W hat is tha t.
A. F ro m 17th S tree t to' 32nd S treet and N orth Tenth
Avenue to South M orris Avenue.
Q. Is the T erm in a l S tation in th a t a rea ?
A. Yes, sir.
Q. I w ill ask you w hether or not in the perform
ance of your duties you m ak e inspections or obJ
serva tions a t th e T erm inal S tation?
A. Yes, sir.
194
Q. How long have you been on C ar 13?
A. A little over a year.
Q. A little over a y ea r?
A. Yes.
Q. Is the a re a covered by C ar 13, h a s it th rough
out a ll th a t tim e included the T erm in a l S tation?
A. Y es, sir.
Q. I w ill ask you w hether you h ave received any
in stru c tio n s from your superio rs in th e Police D ep a rt
m en t?
A. I have.
Q. About negroes s ittin g in the w aiting room at
the T erm in a l S tation m ark e d in te rs ta te an d w hite
w aiting room ?
A. Yes, sir.
Q. W hat a re those in struc tions?
A. We have been in s tru c ted to see if they have
ticke ts and if they have tick e ts not to bo ther them
and if they don’t have tick e ts to m ak e th e m ove.
Q. If they don’t have tick e ts?
A. Yes.
Q. I w ill ask you w hether or not in the p a s t y ear
you have seen any negroes s itting in the w hite w a it
ing room a t the T erm in a l S tation who did not have
tick e ts?
A. No, sir.
Q. I w ill ask you w hether or no t in th e p a s t y ear
you h ave seen any negroes in the in te rs ta te and w hite
w aiting room a t the T erm inal S tation who h ad intra-*
s ta te tick e ts?
A. No, sir.
Q. T ickets from one tow n in A lab am a to another?
A. No, sir.
195
Q. I w ill ask you w h eth er or no t du ring the tim e
you have been on th is rou te you e v e r req u ired any
negro who h ad an in te rs ta te tick e t to m ove?
A. H ave I ever re q u ire d th a t?
Q. To m ove fro m th e w aiting room m arked in te r
s ta te and w hite?
A. You m e a n if I h av e asked any of th em to m ove?
Q. Yes.
A. No, I never have asked any of them to m ove.
Q. H ave you asked any negro in the tim e th a t you
have been th e re to- m ove out of th e in te rs ta te and
w hite w aiting room a t th e T erm inal S tation?
A. No,
M r. B reckenridge:
T hat is all.
C ross E xam ination .
(By M r. N ew ton):
Q. M r. S haffner, is your c a r th e only c a r on your
route th a t covers the a re a w here the T erm in a l S ta
tion is located?
A. The only p a tro l car.
Q. A re th e re o ther officers on b ea t p e rh ap s who
m ak e period ic inspections a t the T erm inal S tation?
A. No, we don’t h ave a b e a t m a n th e re .
Q. You say th is a re a has been under your su p er
vision fo r a little over a y ea r?
A. T hat is right.
Q. H ave you seen negroes s itting in the w aiting
room m arked in te rs ta te and w hite p assen g ers?
A. T hat is righ t.
Q. H ave th e re been m an y or few, sir?
196
A. Well, w henever I checked it I'w ould say m aybe
once a w eek or tw ice a w eek I w ould see someone
in there .
Q. On those occasions would th e re be ju s t one p e r
son?
A. No, som etim es there would be m ore th a n one.
Q. W ould they be s tand ing or sitting?
A. Sitting.
Q. Now, M r. Sjhaffner, on these occasions w hen you
saw these people s itting th e re did you check th e ir
ticke ts?
A. I did.
Q. Do you reca ll w hether they w ere in te rs ta te or
in tra s ta te p assen g ers?
A. All of th em were p assing through.
Q. Going to ano ther sta te?
A. T hat is righ t.
Q. D id you m ake any a rre s ts?
A. No, I d idn’t.
Q. If th e re h ad been passengers in the w a it
ing room w ith in tra s ta te tick e ts w hat would you have
done?
M r. B reckenridge:
We ob jec t to th a t.
The Court:
S usta in it.
Mr. Newton:
We except.
Q. Mr. Shaffner, a re you say ing on your periodic
inspections of the w aiting room every w eek or so you
197
see negroes s ittin g in th e in te rs ta te and w hite w ait
ing room ?
A. T hat is righ t.
Q. Do you know, sir, if neg roes s a t the re of your
own know ledge of course p rio r to the tim e th a t you
took over th e b ea t a little over a y e a r ago?
A. No, I don’t.
Q. A re you fam ilia r , of your own know ledge, of
any a r re s ts being m ad e in th e w aiting room p rio r
to your tak ing over?
A. I ju s t h e a rd of it. I am not positive of it.
Mr. Newton:
T hat is all.
The Court:
Do the defendan ts rest?
Mr. B reckenridge:
T hat is the C ity ’s case.
The Court:
G entlem en, I w ill say th is. We have the evidence
in. The law in th is case is spelled out v e ry c lea rly
in th e opinion of the F ifth C ircu it of A ppeals and I
do not req u ire any b rie fs of th e law in the case.
In so far as th e ev idence is concerned I h av e to w rite
an opinion in w hich I w ill have findings of fa c ts and
I do not req u ire any briefs fa c tu a l or o therw ise u n
le ss you gen tlem en w an t to w rite a b rie f ad d ressed
to the deposition of the w itness, D r. Ju a n ita P itts
w hich w as rece iv ed th is m orning .
I am going to N ew Y ork to hold C ourt and I w ill
not get th is opinion out un til I get b ack around
T hanksgiving, bu t I do w an t to say th is w hile th e
198
case is f re sh in m y m ind , th a t I find incred ib le the
testim o n y of th e w itness M ichael and I re je c t th a t
testim ony and its im plications. T h a t w as th e b asis
fo r m y find ing th a t th e re is no evidence w hatsoever
w hich w ould ju stify any decree ag a in s t th e Birming-*
h a m T erm inal. If h e r evidence w ere believable and I
th in k it is not, th e re w ould be evidence of p a r tic ip a
tion by em ployees of th e T erm in a l C om pany in the
p ra c tic e s w hich a re com plained of. I don’t believe
she h e a rd w h at she sa id she h e a rd or saw w h a t she
sa id she saw . So I re je c t th a t testim ony and find it
unw orthy of belief.
Now, then , hav ing sa id th a t I w ill take it up from
th e re and I h av e the ev idence before m e and w ill
get out an opinion as quick ly as I can.
C ertificate.
S ta te of A labam a,
Jefferson County.
Ja n u a ry 20, 1960.
I, N. P. Howell, O fficial R ep o rte r, ce rtify th a t the
foregoing is a tru e and c o rrec t tra n sc r ip t of the pro
ceedings h ad on the t r ia l of the afo resty led cause.
N. P . HOW ELL.
P re sen t: Hon. Seybourn H. Lynne.
F ile No. 8634, C.A.
C ourt R ep o rte r: N P Howell.
199
C L E R K ’S COURT M INUTES.
F iled N ovem ber 2, 1959.
U nited S ta tes D is tr ic t Court, N o rth ern D is tr ic t of Ala-*
b am a , Southern Division.
C arl L. B aldw in, e t al.,
vs.
J . W. M organ, et ah , ind iv idually and as m em bers
of th e B oard of C om m issioners of the City of B ir
m ingham ; C.C. (Jack ) Owens, e t ah , as m em b ers
of the A lab am a P ub lic Service C om m ission; and
th e B irm in g h am T erm in a l Com pany, a co rpo ra
tion.
This case having duly come on fo r a h ea rin g or
tr ia l on th e 27th day of O ctober, 1959 upon issues as
set fo rth in the p re - tr ia l order and order ab a tin g ac-<
tion as to D efendan t J im m ie H itchcock, and th e re ap
p ea rin g D em etriu s C. New ton; O scar W. A dam s, J r . ,
fo r p la in tiffs C aban iss & Johnston; Ja m e s M. B reck-
en ridge ; M cD onald G allion or defendants and there-*
upon the issues ra ise d hav ing been duly p resented ,
a rgued and su b m itted to the C ourt, it w as, on Non
vem ber 2, 1959, decided and ad judged by the C ourt
as follows:
tak en under adv isem en t; opinion and ju d g m en t to be
filed.
W ILLIAM E. DAVIS,
Clerk,
By G E N E E . BELL,
D eputy Clerk.
B irm ingham , A labam a'.
200
M EM ORANDUM OPINION.
F iled Nov. 23, 1959.
W hen th is case w as called for tr ia l on O ctober 27,
1959, p la in tiffs filed a “ m otion req u estin g th a t th e D is
tr ic t Court re fu se to h e a r the pending case un less a
T hree-Judge Court is em p an e le d ” (sic).
A dverting to the notice, dated F e b ru a ry 13, 1957,
signed by Judge G room s, re fe rrin g to the p resen t com
p la in t, tra n sm itte d to. the H onorable Jo se p h C. H u tche
son, J r . , Chief Judge , U nited S ta tes Court of A ppeas
for the F ifth C ircu it, p u rsu a n t to the provisions of 28
U.S.C.A. 2284, and to Judge H utcheson’s le tte r in r e
ply, da ted F e b ru a ry 19, 1957, declin ing to constitu te
a d is tr ic t C ourt of th re e judges, th is Court denied such
m otion on the au th o rity of G ayle, et al., v. B row der,
e t al., 352 U.S. 903, affirm ing 142 F . Supp 707; B ald
win, et al., v. M organ, et al., 251 F . 2d 780; W ichita
F a lls Ju n io r College D ist. v. B attle , 204 F 2d 632;
B oard of S uperv iso rs of L a St. U. & A. & M. Col
v. Dudley, 252 F . 2d 372, and D avis v. County School
B oard of P rin ce E d w ard Co., V a., 142 F . Supp. 616.
T hereupon, th e re ensued a tr ia l to the Court, with-'
ou t the in terv en tio n of a ju ry , w hich consum ed p a r ts
of th ree days. A fter sifting and w eighing the credible
evidence, th e Court is left w ith th e overw helm ing con
v ic tion th a t the a llegations of the com plain t, held suf
fic ien t on appeal to w ith stand th e a tta c k of th e mo
tion to d ism iss, B aldw in, et ah , v. M organ, et ah,
251 F. 2d 780, w ere d issipa ted by the proof.
201
If the gaze of th is C ourt w as once too foreshortened
by con tem pla tion of the reg re ttab le a r re s ts of th ese
ind iv idual p la in tiffs on D ecem b er 22, 1956, w hich inJ
dub itab ly triggered th is litiga tion , and in spite of the
fa c t tha t the re rem ains unresolved a nagg ing doubt
as to th e ir s tand ing to com plain to r to rep re sen t a
c lass who m ig h t com plain of com pulsory seg regation
of in tra s ta te negro p assen g ers , it accep ts the m a n
d a te to find defin ite ly as a m a tte r of fac t, no t fancy ,
w hether d isc rim in a to ry com pulsory seg reg a tio n of n e
gro p assen g ers in the T erm in a l S tation , B irm ingham ,
A labam a, is enforced by any one of the defendan ts.
A nsw ering in the negative , th e C ourt m ak es the fol
low ing find ings of fact:
1. No one of the defendan ts, un d er color of p ra c
tice, custom , usage or s ta te law is denying or
th rea ten in g to deny negroes equal p riv ileges and im
m un itie s by depriv ing th em of th e ir righ t to use the
“ in te rs ta te and W hite W aiting R oom ” or any o ther
w aiting room a t the T erm in a l S tation, because of
th e ir ra c e or color.
2. D efendants, City C om m issioners (B irm ingham ,
A lab am a), a re not pu rsu ing a custom , s ta tu te o r usage
w hich den ies p la in tiffs and all o ther negroes s im ila rly
s itu a ted the rig h t to use the w aiting room a t T er
m in a l designated “ In te rs ta te and W hite W aiting
R oom .” They have issued no o rd e rs during the y e a r
1956, or subsequen tly th e re to , p u rsu a n t to w hich p la in
tiffs and o ther negroes who use such w aiting room
are su b jec t to a r r e s t and confinem ent in ja il.
202
3. Defendants, Public Service Commissioners (S tate
of A lab am a), h ave not issued , or caused to be issued,
o rd e rs d irec tin g and requ iring the seg reg a tio n of n e
g roes in the w aiting room s of T erm inal.
4. D uring and since the y e a r 1956, defendant, T er
m in a l Com pany, h a s not p u rsu ed and is not p u rsu ing
a policy, custom or u sag e of denying p la in tiffs and
o ther n eg roes s im ila rly s itu a ted th e use of its w ait
ing room designated “In te rs ta te and W hite P asse n
gers W aiting Room .”
5. None of th e defendan ts un d er color of A lab am a
custom , u sag e and law are in fa c t ignoring or defying
the law by denying equal fac ilities b ecau se of race
or color.
T urn ing to th e provisions of Code of A lab am a
(1940), T itle 48, Section 1861 and of G eneral O rd er
1 T itle 48, Section 186, 1940 Code of A labam a: “ E v e ry
ra ilro a d com pany in th is S tate, on the o rd er of
the P ub lic S erv ice C om m ission, shall p rov ide, con
s tru c t and m a in ta in adequa te depots and depot
build ings fo r the accom m odation of passengers,
* * *. A nd sa id ra ilro ad * * * m u s t have, w hen
requ ired by the public se rv ice com m ission, a t
each of the p a ssen g e rs s ta tio n * * * sufficien t s it
ting or w aiting room s to be determ ined by th e
com m ission, fo r p a ssen g e rs w aiting for tra in s ,
hav ing re g a rd to sex and ra c e * *
203
No. T-21, A lab am a P ub lic S erv ice C om m issio n ^ of
w h ich p la in tiffs com plain, as applied by these defend
an ts a t th e T erm in a l S tation, th is C ourt concludes th a t
th ey offend n e ith e r the C onstitu tion nor s ta tu te s of
the U nited S ta tes . W hile sep a ra te w aiting room s in
such sta tion a re p rov ided for w hite and colored p a s
sengers in obedience th e re to , the custom and usage
observed by th e se defendan ts is to rem it to th e vol
u n ta ry choice of m e m b ers of both races the use of
e ith er w aiting room.
2 In re : Signs for Common C arrie r W aiting Rooms
D ocket 14072.
The C om m ission hav ing under co nsidera tion the
m a tte r of ru le s and regu la tions govern ing c a rr ie rs
by ra ilro ad and by bus in the S tate of A lab am a
in th e provid ing and m ain ten an ce of p a ssen g e r
s ta tio n s or depots; —
It is O rdered by th e Com m ission, th a t the general
o rd e r set fo rth below be, and the sam e is hereby ,
adopted and designated as th e C om m ission’s G eneral
O rd er No. T-21:
W herever p assen g er sta tions or depots a re m a in
ta in ed in A lab am a by com m on c a rr ie rs by ra il or
by m otor vehicle th e re shall be p laced by the c a r
rie r a t or n e a r th e en tran ce of th e w aiting room
designated for the N egro race on a p p ro p ria te sign
or signs ind icating the location of th e colored w a it
ing room and such sign or signs shall con ta in th is
language: “ Colored W aiting R oom ” , and there
shall be p laced by th e c a rr ie r a t or n e a r the en
tra n c e of the w aiting room designated fo r the
w hite ra c e an ap p ro p ria te sign or signs designat-
204
W hile no law , o r custom or u sag e w hich is th e equiv
alen t of law , m ay com pel th e seg reg a tio n of race s
in the a re a of public tran sp o rta tio n , i t is equally c lear
th a t people of good w ill of both ra c e s a re free to ob
se rv e trad itio n s w hich for genera tions have been an
in tim a te p a r t of th e ir w ay of life. A co n tra ry view
would be a b h o rre n t to our notions of fu n d am e n ta l r ig h t
and wrong.
A Judgem en t w ill be en te red denying p la in tiffs and
the c lass rep re sen ted by th em the re lief for w hich
they h av e p ray ed and d ism issing th is action.
This the 23rd day of N ovem ber, 1959.
SEY BO U RN H. LY N N E,
Judge.
ing the location of the W hite W aiting Room , and
such sign or signs sha ll con ta in th is language
“W hite W aiting Room ” , and th e le tte r in g on such
sign or signs sha ll be of such size as to m ake the
sam e c lea rly visible a t a d is ta n ce of a t le a s t 50
feet and such le tte rin g shall be of a con trasting
color so as to provide reasonab le v isib ility
I t is fu r th e r O rd ered by the C om m ission, th a t
th is order shall be effective as of the d a te hereof
and sha ll rem a in in effect un til o therw ise o rderd
by the C om m ission.
D ated a t M ontgom ery, A labam a, on th is th e 8th
day of F eb ru a ry , 1956.
ALABAMA PU B LIC SER V IC E
COMMISSION.
205
O R D ER DISM ISSING THIS ACTION IN CON
FO R M ITY WITH M EM ORANDUM OPINION.
F iled N ovem ber 23, 1959.
In the U nited S ta tes D is tr ic t Court for th e N orthern
D is tric t of A lab am a, Southern Division.
C arl L. B aldw in, e t al., P la in tiffs ,
vs. Civil A ction No. 8634.
J . W. M organ, e t al., D efendan ts
In conform ity w ith th e m em orandum opinion con
ta in ing find ings of fac t and conclusions of law , con
tem poraneously filed herew ith ,
It is O rdered , A djudged and D ecreed by th e C ourt
th a t p la in tiffs and th e c lass w hich they re p re se n t are
not entitled to any of the re lie f for w hich they p ray ;
th a t th is action be and the sam e is hereby d ism issed ,
and th a t th e costs of C ourt incu rred herein be and the
sam e a re tax ed ag a in st p lain tiffs.
Done, th is th e 23rd day of N ovem ber, 1959.
SEY BOU RN H. LY N NE,
Judge.
206
NOTICE O F A PP E A L .
F iled D ecem ber 21, 1959.
In th e U nited S ta tes D is tr ic t C ourt for the N o rth ern
D istric t, S ou thern D ivision.
C arl L. B aldw in, et ah , P la in tiffs ,
vs. Civil A ction No. 8634.
J . W. M organ, E u gene Conner, J . T. W aggoner, In
d iv idually and as M em bers of th e City Com m is
sion of th e City of B irm in g h am , e t al., D efend
ants.
N otice is hereby given th a t C arl L. B aldw in and
A lexin ia Baldw in, p la in tiffs , above nam ed , hereby ap-1
peal to th e C ircu it C ourt of A ppeals F o r The F if th
C ircu it, fro m the O rder and D ecree d ism issing th e ir
com plain t, en te red on N ovem ber 23, 1959.
OSCAR W. ADAMS, JR .,
A ttorney for P la in tiffs .
I hereby certify th a t I have m ailed a copy of the
foregoing N otice of A ppeal, postage p rep a id , on th is
th e day of D ecem ber, 1959, to the H onorable J a m e s
H. W illis, City A ttorney for the City of B irm ingham ,
600 City H all, B irm in g h am , A labam a, the H onorable
A sa R ountree, F ir s t N ational B uilding, B irm ingham ,
A labam a and the H onorable M acD onald Gallion, A t
to rn ey G eneral of th e S ta te of A labam a, M ontgom ery,
A labam a.
OSCAR W. ADAMS, JR .,
A ttorney for P la in tiffs .
207
A P P E A L BOND.
F iled D ecem ber 21, 1959.
(T itle O m itted .)
The pla in tiffs, C arl L. B aldw in and A lexin ia B ald
win, hav ing filed N otice of A ppeal from the O rder and
D ecree of th is C ourt en tered on th e 23rd day of No
v em b er, 1959, to the U nited S ta tes C ourt of A ppeals
fo r th e F ifth C ircuit, h e reb y deposit in th e R eg is try
of th e Court the sum of Two H undred F ifty and No/100
($250.00) D ollars, sub jec t to the o rders of the Court
as secu rity th a t sa id A ppellan ts shall p rosecu te th e ir
ap p ea l to effect; th a t sa id A ppellan ts sha ll p ay to
A ppellees all cost, if th e ir appeal is dism issed or the
ju d g m en t affirm ed , or such cost as the A ppellate
C ourt m a y assess.
D ated th is the 19th d ay of D ecem ber, 1959.
CARL L. BALDWIN,
A LEX IN IA BALDWIN,
P lain tiffs .
O R D E R EX TEN D IN G TH E TIM E WITH WHICH
TH E RECO RD ON A P P E A L MUST BE F IL E D
W ITH U. S. COURT O F A PPE A LS.
F iled J a n u a ry 27, 1960.
(Title O m itted .)
Upon m otion of O scar W. A dam s, J r . , A tto rney for
appe llan t p u rsu an t to R ule 73 (g ), F e d e ra l R ules of
208
Civil P rocedure , and for good cause shown, it is here-'
by
O rdered th a t the tim e w ith in w hich th e reco rd on
appea l in the above en titled action m ust be filed w ith
the U nited S ta tes C ourt of A ppeals for the F if th C ir
cu it a t N ew O rleans, L ouisiana, and the tim e w ithin
w hich the ap p ea l m ust be th e re docketed, be, and the
sam e hereby is ex tended to and including M arch 20,
1960.
This the 27th d ay of J a n u a ry , 1960.
SEY BO U RN H. LY N N E,
U nited S tates D is tric t Judge.
O R D E R TO TRANSMIT ORIGINAL EXHIBITS.
F iled J a n u a ry 27, 1960.
(T itle O m itted .)
U pon m otion of appe llan ts , and for good cause
shown to the Court,
It is h e reby O rdered th a t the o rig inal exh ib its in
the above-entitled case be tran sm itted to th e U nited
S ta tes Court of A ppeals, F ifth C ircuit, New Orleans,
L ouisiana, by th e C lerk of th is Court, for the use of
the sa id C ourt of A ppeals in connection w ith th e ap
peal in th is cause, to be re tu rn ed to th is C ourt w hen
the appea l is te rm in a ted .
Done th is the 27th day of Jan u a ry , 1960.
SEY BOU RN H. LY N NE,
U nited S ta tes D is tric t Judge.
209
MOTION TO DISMISS F IL E D ON B E H A L F OF D E
FEN D A N T BIRM INGHAM TER M IN A L COM
PANY.
F iled N ovem ber 2, 1959.
(T itle O m itted .)
D efendan t B irm in g h am T erm in a l Com pany, a f te r
com pletion of all th e ev idence in th is case , renew s its
m otion th a t the C ourt en te r an o rder d ism issing th is
ac tion as to sa id defendan t and s ta te s as grounds
.therefor th e following:
1. Upon the fac ts and the law the p la in tiffs h ave
shown no rig h t to re lie f as ag a in s t th is defendant.
2. The evidence show s th a t as to th is defendan t
th is Court h as no ju risd ic tio n of th is action.
D ated N ovem ber 2, 1959.
J . ASA R O U N T R E E ,
A ttorney fo r D efendant, B ir
m ingham T erm in a l Com
pany.
I hereby ce rtify th a t a copy of th is m otion has been
served upon all counsel of record , in open C ourt, th is
2nd day of N ovem ber, 1959.
J . ASA R O U N TR EE.
210
DESIGNATION O F CONTENTS OF RECO RD ON
A PPE A L .
Filed F e b ru a ry 17, 1960.
(T itle O m itted .)
P u rsu a n t to R ule 75 (a ) of the F e d e ra l R ules of
Civil P rocedu re the P la in tiffs-A ppellan ts hereby des
ign a te for inclusion in th e reco rd on app ea l to U nited
S ta tes Court of A ppeals fo r the F ifth C ircu it tak en
by N otice of A ppeal filed on the 21st day of D ecern-
her, 1959, from an O rder and D ecree of a D is tric t
C ourt d ism issing th e com plain t of th e P la in tiffs , said
O rder entered on N ovem ber 23, 1959, the following
portions of the record, and proceedings in th is action.
1. A nsw er of the D efendants C. C. (Ja c k ) Owens,
J im m y H itchcock and Sibyl Pool.
2. A nsw er of the D efendan ts, J . W. M organ and
J . T. W aggoner, ind iv idually and as m em b ers of th e
C om m ission of th City of B irm ingham .
3. A nsw er of th e D efendant, B irm ingham T erm in a l
Com pany.
4. Motion fo r Substitu tion of E ugene Conner for
R. E. L indbergh and A ffidavit in behalf of such sub
stitution.
5. O rd er Substitu ting E ugene Conner for R. E.
L indbergh.
211
6. A nsw er of S ubstitu ted D efendan t, Eugene Con
n e r in p lace of R. E . L indbergh .
7. Notice of T aking D eposition of Q ueen E . R ob
e rts .
8. Motion and A ffidavit for Substitu tion of R a lp h
Sm ith.
9. N otice of Taking D eposition of Dr. Ju a n ita P itts .
10. M otion to D ism iss filed on beh a lf of th e defend
ant, B irm in g h am T erm in a l Com pany.
11. O rder of the C ourt D ism issing P la in tiffs ’ Com
plaint.
12. M em orandum Opinion of Ju d g e Seybourn H.
Lynne.
13. A ppeal Bond and N otice of A ppeal.
14. Motion R equesting th a t the D is tr ic t C ourt r e
fuse to h e a r the pending case un less a th ree -ju d g e
Court is im paneled.
15. O rder upon M otion of P la in tif f ’s a tto rn ey for
add itio n a l tim e in w hich to file reco rd on a p p ea l w ith
U nited S ta tes Court of A ppeals for th e F if th C ircuit.
16. O rder to T ran sm it O rig inal E xh ib its .
17. All of p la in tiffs as well as d efen d a n ts’ exhib its
and depositions.
212
18. A com plete tra n s c r ip t of th e testim ony recorded
du ring th e h e a rin g of sa id case.
19. D esignation of Contents of R ecord on A ppeal.
OSCAR W. ADAMS, JR .,
A tto rney for P lain tiffs-A ppel-
lan ts.
C ertifica te of Service.
This is to ce rtify th a t a copy of the obove D esigna
tion of Contents of R ecord on A ppeal h a s th is day
been m a iled by United' S ta tes M ail, postage p repaid ,
to th e H onorable J a m e s H. W illis, City A tto rney , City
H all, B irm in g h am , A labam a, the H onorable A sa J .
R ountree of the f irm of C abaniss and Johnston, F ir s t
N ational B uilding, B irm in g h am , A lab am a, and the
H onorable M acD onald G allion, A ttorney G eneral for
th e S ta te of A labam a, M ontgom ery, A labam a.
This th e 17 day of F e b ru a ry , 1960.
OSCAR,: W. ADAMS, JR .,
A ttorney fo r Plaintiffs-A ppel-'
lan ts.
213
C L E R K ’S C ER T IFIC A T E .
I
U nited S ta tes of A m erica,
N o rth ern D is tr ic t of A labam a.
I, W ILLIAM E . DAVIS, C lerk of the D is tr ic t Court
of the U n ited S ta tes fo r the N orthern D is tr ic t of Ala--
b am a , S outhern D ivision, do hereby certify th a t the
foregoing pag es n um bered fro m one (1) to tw o hun
dred seven teen (217), both inclusive, is a full, tru e
and co rrec t tra n s c r ip t of th e reco rd on appeal in the
M a tte r of C arl L. B aldw in and A lexin ia B aldw in,
P lain tiffs-A ppellan ts, vs. J . W. M organ, E ugene Con
nor, J . T. W aggoner, Ind iv idually and as M em bers
of th e B oard of C om m issioners of th e City of B ir
m in g h am , and C. C. (J a c k ) Owens, R alph Smith; and
Sybil Pool, a s M em bers of th e A lab am a P ub lic S erv
ice C om m ission, and The B irm in g h am T erm in a l Com
pany, a C orporation, D efendants-A ppellees, as fu lly as
the sam e a p p e a rs of reco rd and on file in m y office.
In W itness W hereof, I h ave hereunto subscribed m y
n am e and affixed the sea l of sa id Court a t B irm ingh-
h am , in sa id D is tric t, on th is the 14th day of M arch ,
1960.
W ILLIAM E. DAVIS,
(W illiam E . D av is),
(Seal) C lerk, United S ta tes D is tric t
Court.
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