Lombard v. Louisiana Record and Briefs

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OCTOBER TERM—1961

No, 838

RUDOLPH LOMBARD, ET AL.f
Petitioners,

versus

STATE OF LOUISIANA.

APPENDIX TO THE PETITION FOR WRIT OF CER­
TIORARI TO THE SUPREME COURT OF THE 

STATE OF LOUISIANA.

JOHN P. NELSON, JR., ■
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. CODLINGS,

2211 Dryades Street,
V  New Orleans, Louisiana,

Attorneys for Petitioners.

M ontgom ery  & Co., “ T h e  B rig f Specialists**. *30 C h arirg a  S t..  K . O.. I-a.





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SUPREME COURT 
STATE OF LOUISIANA

NO. 45,491

STATE OF LOUISIANA 

VS.

SIDNEY LANGSTON GOLDFINCH, JR., 
RUDOLPH LOMBARD, ET AL.

APPEAL FROM THE CRIMINAL DISTRICT COURT 
PARISH OF ORLEANS

HONORABLE J. BERNARD COCKE, JUDGE 
SUMMERS, Justice.

The four defendants herein, a white and three 
Negroes, were jointly charged in g bill of information 
filed by the District Attorney of Orleans Parish with 
criminal mischief in that on September 17, 1960, they 
took possession of the lunch counter at McCrory’s Store, 
and remained there after being ordered to leave by the 
manager in violation of the provisions of Title 14, Section 
59 of the Revised Statutes of the State of Louisiana, the 
pertinent portions of which provide:

“Criminal mischief is the intentional performance 
of any of the following acts:

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Defendants filed a motion to quash, motion for a 
new trial and a motion in arrest of judgment, all of which 
were overruled, and objected to the refusal of the Court 
to permit the introduction of certain evidence to which 
bills of exceptions were reserved.

These motions and bills of exceptions pertain pri­
marily to the contention of defendants that the statute 
under which they were convicted, in its application against 
Negroes, is unconstitutional and discriminatory in that 
it denies to them the guarantees afforded by the Due 
Process and Equal Protection clauses of the Constitution 
of the United States and the Constitution of the State of 
Louisiana, particularly that afforded by the Fourteenth 
Amendment to the Constitution of the United States.

There should be no doubt, and none remains in our 
minds, about the applicability of the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
to the state rather than private persons. The second 
sentence contains the phrases, “No State shall make or 
enforce any law * * and “nor shall any State deprive 
any person * *

Since the decision in the Civil Rights Cases, 109
U. S. 3, 27 L. Ed. 835, 3 S. Ct. 18, it has been unequivo­
cally understood that the Fourteenth Amendment covers 
state action and not individual action. Mr. Justice Brad­
ley, speaking for the majority in these cases, stated:

“The first section of the Fourteenth Amendment 
(which is the one relied on), after declaring who 
shall be citizens of the United States, and of the 
several States, is prohibitory in its character, and 
prohibitory upon the States * *

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“It is State action of a particular character 
that is prohibited. Individual invasion of individ­
ual rights is not the subject-matter of the amend­
ment.’'

The foregoing concrete language indicates emphati­
cally that positive action by state officers and agencies 
is the contemplated prohibition of the amendment. 43 Cor­
nell L.Q. 375. Mr. Justice Bradley further stated that 
the wrongful act of an individual is not state action “if 
not sanctioned in some way by the State, or not done under 
State authority, * * This proposition has been con­
stantly reiterated by the highest court of our land. In 
Shelley v. Kraemer, 334 U. S. 1, 92 L. Ed. 1161, 68 S. Ct. 
836, it was stated thusly: “Since the decision of this 
Court in the Civil Rights Cases, 109 U. S. 3 (1883), the 
principle has become firmly embedded in our constitu­
tional law that the action inhibited by the first section 
of the Fourteenth Amendment is only such action as 
may fairly be said to be that of the States. That Amend­
ment erects no shield against merely private conduct, 
however discriminatory or wrongful.”

We are, therefore, called upon to determine 
whether the enactment of the questioned statute is such 
action by the State as is prohibited by the Fourteenth 
Amendment. In this connection it is recognized that the 
enactment of a statute which on its face provides for dis­
crimination based upon race or color is a violation of the 
Fourteenth Amendment and constitutes state actions 
which that constitutional amendment prohibits.

A reading of the statute readily discloses that it 
makes no reference to any class, race or group and applies

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to all persons alike, regardless of race. It confers no 
more rights on members of the white race than are con­
ferred on members of the Negro race, nor does it provide 
more privileges to members of the white race than to 
members of the Negro race. Williams v. Howard John­
son’s Restaurant. 268 F. 2d 845. The statute under con­
sideration here stands no differently than does one im­
posing a penalty upon a person who enters without right 
the posted lands of another. It is not such a law as would 
be marked with the characteristic that it has been promul­
gated by our State for a special design against the race 
of persons to which defendants belong. To the contrary 
it is such a law that finds widespread acceptance through­
out America. It is a legislative recognition of rights 
accorded to the owners of property similar to those found 
in almost all states of our nation. Mr. Justice Black 
in Martin v. City of Struthers, 319 U. S. 141, 87 L. Ed. 
1313, 63 S. Ct. 862, referring to a statute of Virginia 
similar in scope to that here involved, said: “Tradi­
tionally the American law punishes persons who enter 
onto the property of another after having been warned 
by the owner to keep off. General trespass after warn­
ing statutes exist in at least twenty states, while similar 
statutes of narrower scope are on the books of at least 
twelve states more.”

Not being impressed with features which would 
make it as discriminatory and a fortiori unconstitutional,1
1 Buchanan v. Warley, 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16; Flem­

ming v. South Carolina Electric and Gas Co., 224 F. (2d) 752, 
appeal dismissed, 351 U.S. 901; Browder v. Gayle, 142 F. Supp. 
707, affirmed, 352 U.S. 903; Evers v. Dwyer, 358 U.S. 202, 3 L. 
Ed. (2d) 222, 79 S. Ct. 178; Dorsey v. State Athletic Comm., 
168 F. Supp. 149, appeal dismissed and certiorari denied, 359 
U.S. 533.

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Defendants further assert in their attack upon 
the statute that by content, reference and position of con­
text it is designed to apply to, and be enforced in an arbi­
trary manner against, members of the Negro race and 
those acting in concert with them. In aid of this assertion 
certain House bills of the Louisiana Legislature for I960, 
introduced in the same session with the contested statute, 
were offered in evidence.- All of these bills did not be­
come law, but some did.-’ It is declared that this law 
and the others enacted during the same session were de­
signed to apply to and be enforced against, in an arbi­
trary manner, members of the Negro race. We have 
carefully reviewed the provisions of these bills referred 
to which were enacted into'law and nowhere in their con­
tent or context do we find that any of them seek to dis­
criminate against any class, group, or race of persons. 
We therefore find no merit in this contention and, accord­
ingly, dismiss it as being unsupported.

But the primary contention here, conceding the 
constitutionality of the statute on its face, has for its basis 
that the statute is unconstitutional in its application and 
the manager and employees of the store were acting in 
concert with the municipal police officers who made the 
arrest, the district attorney in charging defendants, and 
the court in trying defendants’ guilt; that these acts con­
stitute such state action as is contemplated by the prohi­
bition of the Fourteenth Amendment. We have noted,
2 See Official Journal of the Proceedings of the House of Representa­

tives of the State of Louisiana, 23rd Regular Session, 1960, 
House Bills 343-366, inclusive.

* See Acts 68, 69, 70, 73, 76, 77, 78, 79, and 81, representing the only 
House Bills referred to in Footnote 1, which were enacted by 
the Legislature.

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however, that in order for state action to constitute an 
unconstitutional denial of equal protection to the defend­
ants here that action must provide for discrimination 
of a nature that is intentional, purposeful, cr systematic. 
Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, 64 S. Ct. 
397; Charleston Federal Savings & Loan Assn. v. Alder- 
son, 324 U. S. 182, 89 L. Ed. 857,-65 S. Ct. 624; City of 
Omaha v. Lewis & Smith Drug Co.-, 156 Neb. 650, 57 
N. W. 2d 269; Zorack v. Clauson, 303 N. Y. 161, 100 
N. E. 2d 463; State v. Anderson, 206 La. 986, 20 So. 2d 
288; City of New Orleans v. Levy, 233 La. 844, 98 So. 2d 
210; 12 Am. Jur., Constitutional Law, Sec. 566. Nor is 
a discriminatory purpose to be presumed. Terrance v. 
Florida, 188 U. S. 519, 47 L. Ed. 572, 23 S. Ct. 402.

The defendants sought to introduce evidence to 
establish that the action of the manager of McCrory’s 
was provoked or encouraged by the state, its policy, or 
officers, and they would have this Court hold that this 
action of McCrory’s was not its own voluntary action, but 
was influenced by the officers of the state. The conclu­
sion contended for is incompatible with the facts. Rather, 
the testimony supports a finding that the manager of Mc­
Crory’s had for the past several years refused service to 
Negroes, that the policy of the store was established by 
him, that he had set out the policy and followed it con­
sistently; that Negroes had habitually been granted access 
to only one counter within the store and a deliberately 
provoked mischief and disturbance such as the one he 
complained of here had not previously occurred. In the 
past other Negroes who had mistakenly taken seats at 
the counter in question and who were told to move had

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cooperated and recognized the requests of the McCrory’s 
employees and had sat at the counter set aside for them.

Even under the provision of the questioned statute 
it is apparent that a prosecution is dependent upon the 
will of the proprietor, for only after he has ordered the 
intruder to relinquish possession of his place of business 
does a violation of the statute occur. The state, there­
fore, without the exercise of the proprietor’s will can 
find no basis under the statute to prosecute.

These facts lead us to the conclusion that the exist­
ence of a discriminatory design by the state, its officers 
or agents, or by its established policy, assuming such 
could have been shown, would have had no influence 
upon the actions of McCrory’s. The action of bringing 
about the arrest of the defendants, then, was the inde­
pendent action of the manager of the privately owned 
store, uninfluenced by any governmental action, design, 
or policy - - state or municipal - - and the arrest was accom­
plished in keeping with McCrory’s business practice estab­
lished and maintained long before the occasion which de­
fendants seek to associate with a discriminatory design by 
the state. Furthermore, it is quite clear from the oral 
argument of defense counsel that this prosecution was 
sought after and provoked by the defendants themselves, 
and in reality the conviction they have sustained is the 
result of their own'contrivance and mischief and is not 
attributable to state action.

The business practice which McCrory’s had adopted 
was recognized then and is now recognized by us to be a

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practice based upon rights to which the law gives sanction. 
It has been expressed as follows:

“The right of an operator of a private enterprise 
to select the clientele he will serve and to make such selec­
tion based on color, if he so desires, has been repeatedly 
recognized by the appellate courts of this nation * * * The 
owner-operator’s refusal to serve defendants, except in the 
portion of the building designated by him, impaired no 
rights of defendants.” See State v. Clyburn, 247 N. C. 
455, 101 S. E. 2d 295, and authorities therein cited. This 
right of the operator of a private enterprise is a well- 
recognized one as defendants concede. “The rule that, 
except in cases of common carriers, innkeepers and similar 
public callings, one may choose his customers is not ar­
chaic.” Greenfield v. Maryland Jockey Club, 190 Md. 96, 
57 A. 2d 335.

The right to prevent a disturbance on one’s private 
property and the right to summon law enforcement offi­
cers to enforce that right are rights which every pro­
prietor of a business has whenever he refuses to deal 
with a customer for any reason, racial or otherwise, and 
the exercise of those rights does not render his action 
state action or constitute a conspiracy between the pro­
prietor and the peace officer which would result in state 
action. Slack v. Atlantic White Tower System, Inc., 181
F. Supp. 124, affirmed, 284 F. 2d 746.

There is presently no anti-discrimination statute 
in Louisiana, nor is there any legislation compelling the

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segregation of the races in restaurants or places where 
food is served. There being no law of this State, statu­
tory or decisional, requiring segregation of the races in 
restaurants or places where food is served, the contention 
that the action of the officials hei-e is discriminatory is 
not well-founded for that action is not authorized by 
state law.

The defendants have sought to show thi*ough evi­
dence adduced at the trial that there is no integration 
of the races in eating places in New Orleans and, there­
fore, the custom of the state is one that supports segre­
gation and hence state action is involved. This argu­
ment overlooks the fact that the segregation of the races 
prevailing in eating places in Louisiana is not required 
by any statute or decisional law of the State or other 
governmental body, but is the result of the business choice 
of the individual proprietors, both white and Negro, cater­
ing to the desires and wishes of their customers, regard­
less of what may stimulate and form the basis of the 
desires. Slack v. Atlantic White Tower System, Inc., 
supra.

To the same effect is the language of the Court in 
Williams v. Howard Johnson’s Restaurant, supra, viz.;

“This argument fails to obsei've the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and so­
cial practices.

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“The customs of the people of a state do not 
constitute state action within the prohibition of the 
Fourteenth Amendment.”

The effect of the contentions of defendants is to 
urge us to disi-egard and ignore certain rights of owners 
and taxpayers in the enjoyment of their property, un­
affected by any public interest, in order that they may 
impose upon the proprietor their own concept of the 
proper use of his property unsupported by any right under 
the law or Constitution to do so. We cannot forsake 
the rights of some citizens and establish rights for others 
not already granted by law to the prejudice of the former; 
this is a legislative function which it is not proper for 
this Court to usurp. Tamalleo v. New Hampshire Jockey 
Club, Inc., 102 N. H. 547, 163 A. 2d 10. The funda­
mental propositions presented here are not novel; we treat 
them as settled and their change is beyond our province.

The conviction and sentence are affirmed.

Rehearing denied, Oct. 4, 1961.

CERTIFICATE OF SERVICE

I hereby certify under Rule 33 (3-b» that service 
has been made on the State of Louisiana, respondent, of 
this appendix to petition for certiorari, by serving a copy 
hereof by mailing same to Hon. Jack P. F. Gremillion, 
Attorney General of the State of Louisiana, addressed to 
him at his office in the State Capitol, Baton Rouge, La., 
and deposited first class postage prepaid in the main

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office of the United States Post Office in the City of 
New Orleans, La.

New Orleans, La..

JOHN P. NELSON, JR.,
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

2211 Dryades Street,
New Orleans, Louisiana,

Attorneys for Petitioners.

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IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1961

No. 638

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

RESPONSE TO THE PETITION FOR WRIT OF 
CERTIORARI TO THE SUPREME COURT 

OF THE UNITED STATES.

JACK P. F. GREMILLION, 
Attorney General,
Capitol Building,
Baton Rouge, La.;

M. E. CULLIGAN,
Assistant Attorney General, 
104 Supreme Court Bldg., 
New Orleans, La.;

RICHARD A. DOWLING, 
District Attorney,
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.;

J. DAVID McNEILL,
Assistant District Attorney, 
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.

M ontgom ery  Jfc Co., "T h e  B rie f S p ec ia lis ts” , 430 C h artre s  S t., N . O., La.



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INDEX.

Page
REASONS FOR DENYING THE WRIT 1-4

CONCLUSION ............................................................ 3-4

APPENDIX “A” ..........................................................  7



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speech and expression, under the decisions of this Court, 
can be limited.

3

( 6)
Paragraphs five, six and seven have all been fully 

answered by the decision of the Louisiana Supreme Court 
and all of which were very fully and completely answered 
by the trial judge, Honorable J. Bernard Cocke, in giving 
his written reasons for overruling the motion to quash 
in pages 32 to 73 of the transcript which we have attached 
in printed form as Appendix “A,” and included in the 
appendix Judge Cocke’s per curiams to all of the bills of 
exceptions taken by the defendants.

(7)
On page 23, paragraph two of the application for 

the writ it is stated that “in a large number of places 
this nationwide protest has prompted startling changes at 
lunch counters throughout, the South and service is now 
afforded in many establishments on a nonsegregated 
basis.”

As showrn on page 11 of the appendix by petitioners, 
the Louisiana Supreme Court points out there is no anti- 
discrimination statute in Louisiana nor is there any leg­
islation compelling the segregation of the races in restau­
rants or places where food is served.

(8)
Inasmuch as we believe that the Louisiana Supreme 

Court has decided all the constitutional issues in this mat­
ter in accordance with the existing jurisprudence of Your



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CERTIFICATE OF SERVICE.
I, M. E. Culligan, Member of the Bar of the Su­

preme Court of the United States, hereby certify that a 
copy of this Response to the Petition for W rit of Cer­
tiorari to the Supreme Court of the United States and 
the appendix thereto, has been mailed by United States 
mail, postage prepaid, to attorneys for the defendants, 
namely, John P. Nelson, Jr., 702 Gravier Building, 535 
Gravier Street, New Orleans 12, Louisiana, and Lolis
E. Elie, Nils R. Douglas, Robert F. Codings, 2211 Dryades 
Street, New Orleans, Louisiana.

Assistant Attorney General.



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Honors, as shown in the opinions cited, the application 
for the writ should be denied. .

Respectfully submitted,

JACK P. F. GREMILLION, 
Attorney General,
Capitol Building,
Baton Rouge. La.;

M. E. CULLIGAN,
Assistant Attorney General, 
104 Supreme Court Bldg., 
New Orleans, La.;

RICHARD A. DOWLING, 
District Attorney,
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.;

J. DAVID McNEILL,
Assistant District Attorney, 
Parish of Orleans,
2700 Tulane Avenue,
New Orleans, La.

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♦
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APPENDIX “ A'

DISTRICT COURT WRITTEN JUDGMENT ON 
MOTION TO QUASH.

STATE OF LOUISIANA NO. 168-520—
OI?r"PTA\T «TT”

The defendants, Rudolph Lombard, a colored male, 
Oretha Castle, a colored female, Cecil Carter, Jr., a colored 
male, and Sydney L. Goldfinch, Jr., a white male, are 
jointly charged in a bill of information which reads as 
follows:

“* * * that on the 17th. of September, 1960, each, 
did wilfully, unlawfully and intentionally take 
temporary possession of the lunch counter and res­
taurant of McCrory’s Store, a corporation author­
ized to do business in the State of Louisiana, lo­
cated at 1005 Canal Street, and did wilfully, unlaw­
fully and intentionally remain in and at the lunch 
counter and restaurant in said place of business 
after Wendell Barrett the manager, a person in 
charge of said business, had ordered the said Syd­
ney Langston Goldfinch, Jr., Rudolph Joseph Lom­
bard, Oretha Castle and Cecil Winston Carter, Jr., 
to leave the premises of said lunch counter and 
restaurant, and to desist from the temporary pos­
session of same, contrary, etc.”

VERSUS

SIDNEY L. GOLDFINCH, JR. 
ET. AL.

SECTION- “E” 
CRIMINAL DISTRICT

COURT
PARISH OF ORLEANS

J U D G E M E N T



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process” clauses of both the Constitution of Louisi­
ana and of the United States of America in that the 
said laws under which the bill of Information is 
being enforced against them arbitrarily, capri­
ciously and discriminately, in that it is being ap­
plied and administered unjustly and only against 
persons of the Negro race and/or white persons 
who act in concert with members of the Negro 
race.’
“ (3) That the statutes under which the prosecu­
tion is based and the Bill of Information founded 
thereon, are both so vague, indefinite and uncertain 
as not to establish an ascertainable standard of 
guilt.’
“ (4) That the statutes under which the prose­
cution is based, exceed the police power of the 
state in that they have no real, substantial or ra­
tional relation to the public safety, health, morals, 
or general welfare, but have for their purpose and 
object, governmentally sponsored and enforced sep­
aration of races, thus, denying the defendants their 
rights under the first, thirteenth and fourteenth 
Amendment to the United States Constitution and 
art. I Section 2 of the Louisiana Constitution.’
“ (5) That the bill of information on which the 
prosecution is based, does nothing more than set 
forth a conclusion of law, and does not state with 
certainty and sufficient clarity the nature of the 
accusation.’

“ (6) That the statutes deprive your defendants of 
equal protection of the law in that it excludes from

are
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id
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s

The particular statute under which defendants are 
charged is L.S.A.-R.S. 14:59 (6; which reads as follows:

“Criminal mischief is the intentional per­
formance of any of the following acts: * * *

“ (6) taking temporary possession of any 
part or parts of a place of business, or remain­
ing in a place of business after the person- in 
charge of said business or portion of such busi­
ness has ordered such person to leave the prem­
ises and to desist from the temporary possession 
of any part or parts of such business.”

The defendants moved the Court to quash the bill 
of information.

As cause for quashing the bill, defendants alleged 
“that movers were deprived of the due process of law and 
equal protection of law guaranteed by the Constitution 
and laws of the State of Louisiana and of the United 
States of America as follows:”

“ (1) That the statutes under which the defend­
ants are charged are unconstitutional and in con­
travention of the Fourteenth Amendment of the 
Constitution of the United States of America, and 
in contravention of the Constitution of the State 
of Louisiana, in that they were enacted for the 
specific purpose and intent to implement and fur­
ther tne state s policy of enforced segregation of 
races.’

(2) That the said defendants are being deprived 
of their rights under the “equal protection and due



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its provisions a certain class of citizen, name!} thope 
who are at the time active with others in further­
ance of certain union activities.’
“ (7) That the refusal to give service because of 
race, the arrest and subsequent charge are all un­
constitutional acts in violation of the Fourteenth 
Amendment of the United States Constitution in 
that the act of the Company’s representative was 
not the free will act of a-private citizen but rather 
an act which was encouraged, fostered and pro­
moted by state authority in support of a custom 
and policy of enforced segregation of races at lunch 
counters.’
“ (8) That the arrest, charge and prosecution of 
defendants are unconstitutional, in that it is the 
result of state and Municipal action, the prac­
tical effect of which is to encourage and foster 
discrimination by private parties.”

In support of their motion to quash, the defendants 
offered the testimony of the following named witnesses, 
deLesseps S. Morrison, Mayor of the City of New Orleans, 
Joseph I. Giarrusso, Superintendent of Police, and Wen­
dell Barrett, Manager of McCrory’s 5 and 10 Cents 
Store.

The Mayor testified in substance as follows:

That the Superintendent of Police serves under his 
direction: that he and the City Government “set the lines 
or direction of policy to the police department.”

That a statement appearing in the Times-Picayune 
dated September 13, 1960, page 7 of Section 1, was an

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accurate report of a statement issued by him following 
the initial “sit-in” and follow up demonstration at the
F. W. Woolworth Store on September 9. 1960.

The essence of the Mayor’s statement filed in evi­
dence was, that he had directed the superintendent of 
police not to permit any additional sit-in demonstrations 
or so-called peaceful picketing outside, retail stores by 
sit-in demonstrators or their sympathizers; that it was his 
determination that the community interest, the public 
safety, and the economic welfare of the city required that 
such demonstrations cease and that they be prohibited 
by the police department.

The Mayor further testified:

That he did not know of any places in the Ci>ty of 
New Orleans, where whites and negroes were served at 
the same lunch counter.

The Superintendent of Police identified as accu­
rate a statement of his appearing in the Times-Picayune, 
Page 18, Section 1, dated September 10, 1960; that his 
reason for issuing the statement was that a recurrence 
of the sit-in demonstration as had occurred at the Wool- 
worth Store on September 9, 1960, would provoke disorder 
in the community.

In his statement, the Superintendent of Police, 
made known that his department was prepared to take 
prompt and effective action against any person or group 
who disturbed the peace or created disorders on public 
or private property. He also exhorted the parents of 
both white and negro students who participated in the



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Woolworth Store “sit-in” demonstration to urge upon 
these young people that such actions were not in the com­
munity interest; etc.

He further testified that as a resident of the 
City of New Orleans and as a member of the police de­
partment for 15 years, he did not know of any public 
establishment that catered to both white and negro at 
the same lunch counter.

Mr. Wendell Barrett testified, that he was and 
had been the Manager of McCrory’s 5 and 10 Cents 
Store in the City of New Orleans for about 3 years; that 
the store was made up of individual departments, and 
catered to the general public.

That the policy of McCrory’s national organization 
as to segregated lunch counters, was to permit the local 
manager discretion to determine same, consideration being 
had for local tradition, customs and law, as interpreted 
by the local manager; that in conformity with this policy, 
he determined whether lunch counters in the local Mc­
Crory’s store would be segregated or not.

That on September 17th., 1960, there was a “sit-in" 
demonstration in the local store of McCrory’s, involving 
one white man and some negroes; that he was in the store 
at the time.

At the conclusion of the testimony of this witness, 
the defendants offered in evidence, “House bills of the Lou­
isiana Legislature of 1960, 343 through 366, which bills 
were all introduced by Representatives Fields, Lehrman



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and Triche, and to be specific Numbers 343, 44, 45, 46, 
47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 360, 61, 
62, 63, 64, 65, 66. All of which bills did not pass, but they 
are in the Journal. Also introduced and received in evi­
dence were Acts 69, 73, 77, 78, 79, 70, 76, 81 and 68.

The motion to quash was submitted without argu­
ment.

A consideration of defendants’ motion to quash, as 
well as the factual presentation on the hearing thereof, 
discloses defendants’ position to be, that the enactment 
of L.S.A.-R.S. 14:59(6) by the Louisiana Legislature of 
1960, was part of a “package deal”, wherein and with 
specific purpose and intent, that body sought to imple­
ment and further the state’s policy of enforced segrega­
tion of the races.

In addition, the same pleading and factual presen­
tation, was offered by defendants’ to support their con­
tention, that L.S.A.-R.S. 14:59(6), was enforced against 
them arbitrarily, capriciously and discriminately in that 
it was being applied and administered unjustly and ille­
gally, and only against persons of the negro race, and/or 
white persons who acted in concert with members of the 
Negro race.

The courts have universally subscribed to the doc­
trine contained in the following citations:

PRESUMPTIONS AND CONSTRUCTION IN FAVOR 
OF CONSTITUTIONALITY

“The constitutionality of every statute is 
presumed, and it is the duty of the court to uphold





a statute wherever possible and every considera­
tion of public need and public policy upon which 
Legislature could rationally have based legislation 
should be weighed by the court, and, if statute is 
not clearly arbitrary, unreasonable and capricious 
it should be upheld as constitutional.”

State vs. Rones, 67 So. 2d. 99, 223 La. 839.
Michon vs. La. State Board of Optometry 

Examiners, 121 So. 2d. 565.

“The constitutionality of a statute is pre­
sumed and the burden of proof is on the litigant, 
who asserts to the contrary, to point out with 
utmost clarity wherein the constitution of the state 
or nation has been offended by the terms of the 
statute attacked.”

Olivedell Planting Co. v. Town of Lake 
Providence, 47 So. 2d. 23, 217 La. 621.

“Presumption is in favor of constitutionality 
of a statute, and statute will not be adjudged in­
valid unless its unconstitutionality is clear, com­
plete and unmistakable.”

State ex rel Porterie v. Grosjean, 161 So. 
871, 182 La. 298.

“The courts will not declare an act of the 
legislature unconstitutional unless it is shown that 
it clearly violates terms of articles of constitution.”

Jones v. State Board of Ed. 53 So. 2d. 792, 
219 La. 630.

“A legislative act is presumed to be legal 
until it is shown that it is manifestly unconsti-



r * r -



15

tutional, and all doubts as to the validity are re­
solved in favor its constitutionality.”

“The rule that a legislative act is presumed 
to be legal until it is shown to be manifestly uncon­
stitutional is strictly observed where legislature 
has enacted a law in exercise of its police powers.” 

Board of Barber Examiners of La. v. 
Parker, 182 So. 485, 190 La. 314.

“Where a statute is attacked for discrimi­
nation or unreasonable classification doubts are 
resolved in its favor and it is presumed that the 
Legislature acts from proper motives in classi­
fying for legislative purposes, and its classifica­
tion will not be disturbed unless it is manifestly 
arbitrary and invalid.”

State vs. Winehall & Rosenthal, 86 So. 781,
147 La. 781, Writ of Error dismissed 
(1922). Winehalld & Rosenthal vs. 
State Louisiana, 42 S. Ct. 313, 258 U. S. 
605, 66 L. Ed. 786.

“In testing validity of a statute the good faith on 
part of Legislature is always presumed.”

State vs. Saia, 33 So. 2d. 665, 212 La. 868.
“There is strong presumption Legislature 

understands and appreciates needs of people, and 
that its discriminations are based on adequate 
grounds.”

Festeiwand v. Laster, 130 So. 635, 15 La. 
App. 159.

“A statute involving governmental matters 
will be construed more liberally in favor of its con-



r *



stitutionality than one affecting private interests.” 
State ex rel LaBauve, v. Mitchel, 46 So. 

430, 121 La. 374.

“State is not presumed to act arbitrarily 
in exercising police power.”

State ex rel Porterie, Atty. Gen. v. Walms- 
ley, 162 So. 826, 183 La. 139, Appeal 
dismissed Board of Liquidation v. Board 
of Com’rs, of Port of New Orleans, 56 
St. Ct. 141, 296 U. S. 540, 80 L. Ed. 384, 
rehearing denied Board of Liquidation, 
City Debt of New Orleans v. Board of 
Comrs. of Port of New Orleans, 56 S. Ct. 
246, 296 U. S. 663, 80 L. Ed. 473.

“Where a law is enacted under exercise or 
pretended exercise of police power and appears upon 
its face to be reasonable, burden is upon party 
assailing such law to establish that its provisions 
are so arbitrarily and unreasonable as to bring it 
within prohibition of Fourteenth Amendment, 
U.S.C.A. Const. Amend. 14”.

State vs. Saia, 33 So. 2d. 665, 212 La. 868.

“Act of Legislature is presumed to be legal, 
and the judiciary is without right to declare it un­
constitutional unless that is manifest, and such rule 
is strictly observed in cases involving laws enacted 
in the exercise of the state’s police power.”

Schwegmann Bros. v. Louisiana Bd. of 
Alcohol Beverage Control, 43 So. 2d. 248, 
216 La. 148, 14 A. L. R. 2d. 680.

16





17

L. S. A. - R. S. 14:59 (6) UNDER WHICH THE PROSE­
CUTION IS BASED AND THE BILL OF INFORMA­
TION FOUNDED THEREON, ARE SO VAGUE, IN­
DEFINITE AND UNCERTAIN AS NOT TO ESTAB­
LISH AN ASCERTAINABLE STANDARD OF GUILT?

Defendants’ above stated complaint is without
merit.

L.S.A.-R.S. 14:59 (6) under which defendants are 
charged reads as follows:

“Criminal mischief is the intentional per­
formance of any of the following acts: * * *

(6) “Taking temporary possession of any 
part or parts of a place of business, or remaining 
in a place of business after the person in charge 
of said business or portion of such business has 
ordered such person to leave the premises and to 
desist from the temporary possession of any part 
or parts of such business.”

The bill of information alleges:
“* * * that on the 17th. of Septembei*, 1960, each 
did wilfully, unlawfully and intentionally take 
temporary possession of the lunch counter and res­
taurant of McCrory’s Store, a corporation author­
ized to do business in the State of Louisiana, lo­
cated at 1005 Canal Street, and did wilfully, un­
lawfully and intentionally remain in and at the 
lunch counter and restaurant in said place of busi­
ness after Wendell Barrett the manager, a person 
in charge of said business, had ordered the said 
Sydney Langston Goldfinch, Jr., Rudolph Joseph





18

Lombard, Oretha Castle and Cecil Winston Carter,
Jr., to leave the premises of said lunch counter and 
restaurant and to desist from the temporary pos­
session of same, contrary, etc.”

From the foregoing it will be seen that L.S.A.- 
R.S. 14:59 (6) as well as the bill of information filed 
thereunder, meet the constitutional rule governing the 
situation.

“When the meaning of a statute appears 
doubtful it is well recognized that w’e should seek 
the discovery of tie legislative intent. However, 
when the language ;•/ a statute is plain and unam­
biguous and convey? a clear and definite meaning, 
there is no need for construction.”

State v. Marsh, et. al. 96 So. 2d. 643,
233 La. 3:8.

State v. Arkansas Louisiana Gas Co., 78 
So. 2d. 825, 227 La. 179.

“Meaning of statute must be sought in the 
language employed, 2nd if such language be plain 
it is the duty of courts to enforce the law’ as 
written.”

State ex rel LeBlanc v. Democratic Central 
Committee. 86 So. 2d. 192, 229 La. 556.

Texas Co. v. Cooper, 107 So. 2d. 676, 236 
La. 380.

Beta Xi Chapter, etc. v. City of N. 0., 137 
So. 204, I t La. App. 130.

Ramey v. Cudahy Packing Co., 200 So. 333.

Statute, which describes indecent behaviour 
with juveniles as commission by anyone over 17,



A



' I  1

19

of any lewd or lascivious act upon person or in pres­
ence of any child under age of 17, with intention 
of arousing or gratifying sexual desires of either namec^
person, which states that lack of knowledge of |ieie*n’
child’s age shall not be a defense, and, which pro- ime 
vides penalty therefor, sufficiently describes acts ^ ie
which constitute violation of statute and therefore, ' e^0i e> 
is constitutional. L. S A. - R. S. 14:81”

State v. Milford, 73 So. 2d. 778, 225 La. 57 ^ a• 
611.

State v. Saibold, 213 La. 415, 34 So. 2d. with 
909. ge in

State v. Prejean, 216 La. 1072, 45 So. 2d. facts 
627. fense,

“The statute defining the crime of simple *ense
escape from ‘lawful custody’ of official of state " .s in-penitentiary or from any ‘place where lawfully

v CllSfl-detained’ uses the quoted words in their common 
or ordinary meanings and is not violative of state 
or federal constitutions in failing to define the 
terms. L.S.A.-R.S. 14:110, L.S.A.-Const. Art. 1,
Sec. 10; U.S.C.A.-Const. Amend. 14” ^33

State v. Marsh, 96 So. 2d. 643, 233 La. 388.
220

L. S. A. - R. S. 15:227 provides:

“The indictment must state every fact and 
circumstance necessary to constitute the offense, ,ec-ution
but it need do no more, and it is immaterial *10 ma-
whether the language of the statute creating the *tute a
offense, or words unequivocally conveying the meets 
meaning of the statute is used.”





20

“Information charging defendant violated 
a specific statute in that he entered without author­
ity a described structure, the property of a named 
person, with the intent to commit a theft therein, 
set forth each and every element of the crime of 
simple burglary and fully informed accused of the 
nature and cause of the accusation, and therefore, 
was sufficient.”

State v. McCrory, 112 So. 2d. 432, 237 La. 
747.

“Where affidavit charged defendant with 
selling beer to miners under 18 years of age in 
the language of the. statute, and set all the facts 
and circumstances surrounding the alleged offense, 
so that court was fully informed of the offense 
charged for the proper regulation of evidence 
sought to be introduced, and the accused was in­
formed of the nature and cause of the accusa­
tion against her, and affidavit was sufficient to 
support a plea of former jeopardy, affidavit was 
sufficient to charge offense.”

State v. Emmerson, 98 So. 2d. 225, 233 
La. 885.

State v. Richardson, 56 So. 2d. 568, 220 
La. 338.

L.S.A.-R.S. 14:59(6) upon which this prosecution 
is based is sufficient in its terms to notify all who may 
fall under its provisions as to what acts constitute a 
violation of the law, and the bill of information meets 
fully the requirements of the law.



r



THE BILL OF INFORMATION ON WHICH THE ade 
PROSECUTION IS BASED, DOES NOTHING MORE ny ex- 
THAN SET FORTH A CONCLUSION OF LAW, AND tizens,
DOES NOT STATE WITH CERTAINTY AND SUF- idants
FICIENT CLARITY THE NATURE OF THE ACCU- :hai*ge
SATION?

There is no merit to this contention. *
riON

As has been heretofore shown, the bill of informa- CON-
tion states “facts and circumstances” in compliance with TED
the Constitutional mandate, L.S.A.-R.S. 15:227, and the LAW
decisions of the Supreme Court. The words used in de- NT IS
scribing the offense are those of L.S.A.-R.S. 14:59(61, sZM
and are not conclusions of law by pleader. IMI-

.̂ND
“Information for taking excess amount of ,LY

gas from well held not to state mere conclusions, ;jp>0

where showing amount allowed and amount taken. jjsj
Act No. 252, of 1924, sec. 4, subd. 2.”

State v. Carson Carbon Co., I l l  So. 162,
162 La. 781. 5 of

L.S.A.-R.S. 14:59 (6) DEPRIVES DEFENDANTS OF *** 
EQUAL PROTECTION OF THE LAWr IN THAT IT _
EXCLUDES FROM ITS PROVISIONS OF A CERTAIN :17‘
CLASS OF CITIZENS, NAMELY THOSE WHO AT 
THE TIME ARE ACTIVE WITH OTHERS IN FUR­
THERANCE OF CERTAIN UNION (LABOR) AC­
TIVITIES?

The court is unable to relate this contention to the 
provisions of L.S.A.-R.S. 14:59(6), or the bill of informa­
tion filed thereunder.

21



f r



22

No where in the statute is any reference made 
labor union activities, nor does the statute make any ex­
ceptions or exclusions as to any persons or class of citizens, 
labor unions, or otherwise. It is probable that defendants 
have erroneously confused these proceedings with a charge 
under L.S.A.-R.S. 14:103 (Disturbance of the Peace.)

THE DEFENDANTS ARE BEING DEPRIVED OF 
THEIR RIGHTS UNDER THE “EQUAL PROTECTION 
AND DUE PROCESS” CLAUSES OF BOTH THE CON­
STITUTION OF LOUISIANA AND OF THE UNITED 
STATES OF AMERICA, IN THAT THE SAID LAW 
UNDER WHICH THE BILL OF INFORMATION IS 
FOUNDED IS BEING ENFORCED AGAINST THEM 
ARBITRARILY, CAPRICIOUSLY AND DISCRIMI- 
NATELY, IN THAT IT IS BEING APPLIED AND 
ADMINISTERED UNJUSTLY AND ILLEGALLY, 
AND ONLY AGAINST PERSONS OF THE NEGRO 
RACE AND/OR WHITE PERSONS WHO ACT IN 
CONCERT WITH MEMBERS OF THE NEGRO RACE?

The prosecution of defendants is in the name of 
the State of Louisiana, through the District Attorney 
for the Parish of Orleans. This officer is vested with 
absolute discretion as is provided by L.S.A.-R.S. 15:17.

It reads as follows:

“The district attorney shall have entire 
charge and control of every criminal prosecution 
instituted or pending in any parish wherein he is 
district attorney, and shall determine whom, when, 
and how he shall prosecute, etc.”



r



In the case of State v. Jourdain, 74 So. 2d. 203, >f
225 La. 1030, it was claimed in a motion to quash that e
the narcotic law was being administered by the New r
Orleans Police Department and the District Attorney’s i-
Office in a manner calculated to deprive the defendant i-
of the equal protection of the law, and in violation of Sec- r-
tion 1 of the 14th. Amendment of the Constitution of the 
United States, in that these officials were actively prose- a
cuting the infraction in this case, whereas they refrained 
from prosecuting other violations of the narcotic act of 
a more serious nature.

Dan
In sustaining the trial court’s ruling, Your Honors aje^

said:

23

“The claim is untenable. Seemingly, it is the 
thought of counsel that the failure of the Police 
Department and the District Attorney to offer ap­
pellant immunity, if he would become an informer, 
operates as a purposeful discrimination against 
him and thus denies him an equal protection of the 
law. But, if we conceded that the police and the 
district attorney have failed to prosecute law vio­
lators who have agreed to become informers, this 
does not either constitute an unlawful administra­
tion of the statute or evidence as intentional or pur­
poseful discrimination against appellant. The mat­
ter of the px-osecution of any criminal case is 
within the entire control of the district attonxey 
(R.S. 15:17) and the fact that not every violator 
has been px’osecuted is of no concern of appellant, 
in the absence of ari allegation that he is a mem-



rr



ber of a class being prosecuted solely because of 
race, religion, color or the like, or that he alone 
is the only person who has been prosecuted under 
the statute. -Without such charges his claim can­
not come within that class of unconstitutional dis­
crimination which was found to exist in Yick Wo v. 
Hopkins, 118 U. S. 356, 30 L. Ed. 220, 6 S. Ct. 
1064 and McFarland v. American Sugar Ref. Co.,
241 U. S. 79, 60 L. Ed. 899, 36 S. Ct. 498. See 
Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497,

• 64 S. Ct. 397, and cases there cited.”

In the case of City of New Orleans versus Dan 
Levy, et. ai., 233 La. 844, 98 So. 2d. 210, Justice McCaleb 
in concurring stated:

“I cannot agree that the City of New Or­
leans and the Vieux Carre Commission are or have 
been applying the ordinances involved with “an 
evil eye and an unequal hand, so as to practically 
make unjust and illegal discriminations between 
persons in similar circumstances” (see Yick Wo v. 
Hopkins, 118 U. S. 356, 6 S. Ct. 1064, 1073, 30 
L. Ed. 220) and have thus denied to appellant an 
equal protection of the law in violation of the 
Fourteenth Amendment to the United States Con­
stitution.’

The sum and substance of appellant’s 
charges is that his constitutional rights have been 
violated since many other similar or more severe 
violations of the city ordinances exist and that the 
city officials have permitted such violations by 
not taking any action to enforce the law. These



r r



complaints, even if established, would not be suffi­
cient in my opinion to constitute an unconstitu­
tional denial of equal protection to appellant as it 
is the well-settled rule of the Supreme Court of 
the United States and all other state courts of last 
resort that the constitutional prohibition embodied 
in the equal protection clause applies only to dis­
criminations which are shown to be of an inten­
tional, purposeful or systematic nature. Snowden 
v. Hughes, 321 U. S. 1, 9, 64 S. Ct. 397, 88 L. Ed. 
497, 503; Charleston Federal Savings & Loan 
Ass’n. v. Alderson, 324 U. S. 182, 65 S. Ct. 624, 
89 L. Ed. 857; City of Omaha v. Lewis & Smith 
Drug Co., 156 Neb 650, 57 N. W. 2d. 269; Zorach 
v. Clauson, 303 N. Y. 161, 100 N. E. 2d. 463; 12 
Am Jur. Section 566 and State v. Anderson, 206 
La. 986, 20 So. 2d. 288.

In State v. Anderson, this court quoted at 
length from the leading case of Snowden v. Hughes, 
supra, (321 U. S. 1, 9, 64 S. Ct. 401) where the 
Supreme Court of the United States expressed at 
some length the criteria to be used in determining 
whether an ordinance or statute, which is claimed 
to have been unequally administered, transgresses 
constitutional rights. The Supreme Court said:

“The unlawful administration by state offi­
cers of a state statute fair on its face, resulting in its 
unequal application to those who are entitled to be 
treated alike, is not a denial of equal protection 
unless there is shown to be present in it an element 
of intentional or purposeful discrimination. This 
may appear on the face of the action taken with

of McFar- 
241 U. S. 
899 (904), 
lence show- 
! individual 
:1 from the 
U. S. 356, 
L. Ed. 220 
>ose is not 

188 U. S. 
572 (573) ; 
intentional 
icago, 177 
j. Ed. 725 
. 500, 507, 
L42 (1145, 
119 U. S.

Ed. 191 
on by the 
shown by 
iminatory 
ace. Neal 
1, 397, 26 
2 of Ala- 

580, 79 
Louisiana, 
13 L. Ed. 
■J. S. 128, 
(86, 87) ; 
62 S. Ct. 
t a mere 
n a par- 
showing



r



respect to a particular class or person, of McFar­
land v. American Sugar Refining Co., 241 U. S. 
79, 86, 87, 86 S. Ct. 498, 501, 60 L. Ed. 899 (904), 
or it may only be shown by extrinsic evidence show­
ing a discriminatory design to favor one individual 
or class over another not to be inferred from the 
action itself, Yick Wo v. Hopkins, 118 U. S. 356, 
373, 374, 6 S. Ct. 1064, 1072, 1073, 30 L. Ed. 220 
(227, 228). But a discriminatory purpose is not 
presumed. Tarrance v. State of Florida, 188 U. S. 
519, 520, 23 St. Ct. 402, 403, 47 L. Ed. 572 (573) ; 
there must be a showing of ‘clear and intentional 
discrimination’, Gundling v. City of Chicago, 177 
U. S. 183, 186, 20 S. Ct. 633, 635, 44 L. Ed. 725 
(728); see Ah Sin v. Wittman, 198 U. S. 500, 507, 
508, 25 S. Ct. 756, 758, 759, 49 L. Ed. 1142 (1145, 
1146); Bailey v. State of Alabama, 219 U. S. 
219, 231, 31 S. Ct. 145, 147, 55 L. Ed. 191 
(197). Thus the denial of equal protection by the 
exclusion of negroes from a jury may be shown by 
extrinsic evidence of a purposeful discriminatory 
administration of a statute fair on its face. Neal 
v. State of Delaware, 103 U. S. 370, 394, 397, 26 
L. Ed. 567 (573, 574); Norris v. State of Ala­
bama, 294 U. S. 587, 589, 55 S. Ct. 579, 580, 79 
L. Ed. 1074 (1076); Pierre v. State of Louisiana, 
306 U. S. 354, 357, 59 S. Ct. 536, 538, 83 L. Ed. 
757, (759i; Smith v. State of Texas, 311 U. S. 128, 
130, 131, 61 S. Ct. 164, 165, 85 L. Ed. 84 (86, 87) ; 
Hill v. State of Texas, 316 U. S. 400, 404, 62 S. Ct. 
1159, 1161, 86 L. Ed. 1559 (1562). But a mere 
showing that negroes were not included in a par­
ticular jury is not enough; there must be a showing



f r



27

of actual discrimination because of race. State of 
Va. v. Rives, 100 U. S. 313, 322, 323, 25 L. Ed. 
667, 1670, 671) Martin v. State of Texas, 200 U. S. 
316, 320, 321, 26 S. Ct. 338, 339, 50 L. Ed. 497 
(499) ; Thomas v. State of Texas, 212 U. S. 278, 
282, 29 S. Ct. 393, 394, 53 L. Ed. 512 (514); cf. 
Williams v. State of Mississippi, 170 U. S. 213, 
225, 18 S. Ct. 583, 5S8, 42 L. Ed. 1012 (1016).

“Another familiar example is the failure of 
state taxing officials to assess property for taxa­
tion on a uniform standard of valuation as re­
quired by the assessment laws. It is not enough to 
establish a denial of equal protection that some are 
assessed at a higher valuation than others. The 
difference must be due to a purposeful discrimina­
tion which may be evidenced, for example, by a sys­
tematic under-valuation of the property of some 
taxpayers and a systematic over-valuation of the 
property of others, so that the practical effect of 
the official breach of the law is the same as though 
the discrimination were incorporated in and pro­
claimed by the statute. Coulter v. Louisville & 
N. R. Co., 196 U. S. 599, 608, 609, 610, 25 St. Ct. 
342, 343, 344, 345, 49 L. Ed. 615 (617, 618); 
Chicago B & Q R Co., v. Babcock, 204 U. S. 585, 
597, 27 St. Ct. 326, 328, 51 L. Ed. 636 (640); Sun­
day Lake Iron Co. v. Wakefield Twp. 247 U. S. 350, 
353, 38 St. Ct. 495, 62 L. Ed. 1154 (1156); South­
ern R. Co. v. Watts, 260 U. S. 519, 526, 43 S. Ct. 
192, 195, 67 L. Ed. 375 (387). Such discrimina­
tion may also be shown to be purposeful, and hence 
a denial of equal protection, even though it is

r-
L

it

t
I

non,

ad-
ist,
A.-
eir

D-
L̂

D-
:d



r



STATES, AND IN CONTRAVENTION OF THE CON- McFar- 
STITUTION OF LOUISIANA, IN THAT IT WAS EN- J. S. 79, 
ACTED FOR THE SPECIFIC PURPOSE AND IN­
TENT TO IMPLEMENT AND FURTHER THE ^ piaint
STATE’S POLICY OF ENFORCED SEGREGATION 
OF RACES?

This contention of defendants is without merit.

nmina- 
is not 

aV and

Certainly under its police power the legislature of . 
the state was within its rights to enact L.S.A.-R.S. 1CG imon> 
14:59(6).

>f that
What motives may have prompted the enactment and

of the statute is of no concern of the courts. As long * w^h
as the legislature complied with the constitutional man- lona^y

er It?date concerning legislative powers and authority, this was 
all that was required. ^

“It has been uniformly held that every rea­
sonable doubt should be resolved in favor of the 
constitutionality of legislative acts. We said in 
State ex rel. Knox v. Board of Supervisors of 

► Grenada County, 141 Miss. 701, 105 So. 541, in a 
case involving Section 175 of the Mississippi Con­
stitution, that if systems (acts) of the kind here 
involved are evil, or if they destroy local govern­
ment in the counties and municipalities, that is 
a question to be settled at the ballot boxes between 
the people and the Legislature. And whether the 
law is needed or not, or whether it is wise or not, 
cannot be settled here. Our functions are to decide 
whether the Legislature had the power to act in

3 with 
held.”

proof ad- 
'f unjust, 

L.S.A.- 
ain their

3FEND-
riONAL
lMEND-
INITED



r r



28

neither systematic nor long continued. Cf. McFar­
land v. American Sugar Refining Co. (241 U. S. 79,
36 S. Ct. 498, 60 L. Ed. 899) supra.

“The lack of any allegations in the complaint 
here, tending to show a purposeful discrimina­
tion between persons or classes of persons is not 
supplied by the approbrious epithets ‘willful’ and 
‘malicious’ * * * *” ”

On rehearing in the Levy Case, Mr. Justice Simon, 
speaking for the Court said:

“In the instant case there is no proof that 
in the enforcement of the municipal zoning and 
Vieux Carre ordinances that the City acted with 
a deliberate discriminatory design, intentionally 
favoring one individual or class over anothex-. It 
is well accepted that a discriminatory purpose is 
never presumed and that the enforcement of the 
laws by public authorities vested, as they are with 
a measure of discretion will, as a rule, be upheld.”

Applying the cases hei'ein cited, to the proof ad­
duced by defendants in suppoi*t of their claim of unjust, 
illegal, and discriminatory administi'ation of L.S.A.- 
R.S. 14:59 (6), defendants have failed to sustain their 
burden.

The claim is without merit.

L.S.A.-R.S. 14:59(6) UNDER WHICH THE DEFEND­
ANTS ARE CHARGED IS UNCONSTITUTIONAL 
AND IN-CONTRAVENTION OF THE 14TH AMEND­
MENT OF THE CONSTITUTION OF THE UNITED



rr



30

passing the law and not whether it ought to have 
acted in the manner it did. The court will uphold 
the constitution in the fullness of its protection, but 
it will not and cannot rightfully control the dis­
cretion of the Legislature within the field assigned 
to it by the Constitution.”

State of Mississippi ex rel. Joe T. Patter­
son, Attorney General v. Board of Super­
visors of Prentiss County, Miss. 105 So. 
2d. 154, (Mississippi)

“The state, in the brief of its counsel, ar­
gues: ‘If we assume that R. S. 56:131 et sequor 
must be followed----- then there can be no enforce­
ment of the fish and game laws by the criminal 
courts. Only a $25 penalty can be inflicted against 
a person who is apprehended for wilfully killing a 
doe deer. Certainly this small ‘civil’ penalty will 
not deter willful game violators and our deer pop­
ulation will soon be decimated. * * *’ Whether the 
prescribed civil proceeding with its attendant pen­
alty militates against adequate wild life protec­
tion is not for the courts’ determination. The 
question is one of policy which the lawmakers 
must resolve.”

State v. Coston, 232 La. 1019, 95 So. 2d. 
641.

“We should also retain in our thinking the 
proposition that the regulation and control of the 
alcoholic beverage business is peculiarly a legis­
lative function. In this connection, as in all similar 
situations, when the legislative branch of the gov­
ernment exercises a legislative power in the form of



r r



31

a duly enacted statute or ordinance it is not the 
function of a court to explore the wisdom or ad­
visability of the enactment in order to bring its 
enforcement into question. To this end the limits 
of the court’s authority is to measure the validity 
of the legislative enactment by the requirements 
of the controlling law. If those standards are 
met the legislation should be upheld. Somlyo v. 
Schott, supra.”

State v. Cochran, 114 So. 2d. 797 (Fla.)
“In Morgan County v. Edmonson, 238 Ala. 

522, 192 So. 274, 276, we said:

‘It is of course a well settled rule that in deter­
mining the validity of an enactment, the judi­
ciary will not inquire into the motives or rea­
sons of the Legislature or the members thereof. 
16 C.J.S., Constitutional Law, pp. 154, p. 487. 
‘The judicial department cannot control legis­
lative discretion, nor inquire into the motives 
of legislators.’ City of Birmingham v. Henry, 
224 Ala. 239, 139 So. 2S3. See also, State 
ex rel Russum v. Jefferson County Commis­
sion, 224 Ala. 229, 139 So. 243;

It is our solemn duty to uphold a law which 
has received the sanction of the Legislature, unless 
we are convinced beyond a reasonable doubt of its 
unconstitutionality. Yielding v. State ex rel. Wil­
kinson, 232 Ala. 292, 167 So. 580.”

State v. Hester, 72 So. 2d. 61 i Ala.)

“Another factor which fortifies our view is 
this: the act assaulted is a species of social legis-

>wer
anic
>n it
:ter-
.rbi-
tels,
ails
i is
the
:ive
blic

on,

be-

.p-

.S.

4s
ht

/e
;e
l-
1-

1



rr



33

by the court, even though there may be a possi­
bility of administration abuse.”

Stewart v. Mack (Fla) 66 So. 2d. 811.
“The gravamen of the offense denounced: y

section 3403 is the entry by one upon the enci ed 
land or premises of another occupied by the owner 
or his employees after having been forbidden to 
enter, or not having been previously forbidden 
refusing to depart therefrom after warned to 
do so.”

* * * * * *

“It is contended that the statute is invalid 
because it is apparent that its terms are for the 
protection of the lessor in the enjoyment of his 
property. Conceding that to be true, we find no 
reason for the deduction that the statute is there­
fore invalid. All statutes against trespass are pri­
marily for the protection of the individual prop­
erty owner, but they are also for the purpose of 
protecting society against breaches of the peace 
which might occur if the owner of the property 
is required to protect his rights by force of arms.” 

e Coleman, Sheriff v. State ex rel Carver
(Fla.) 161 So. 89.

L.S.A.-R.S. 14:59(6) EXCEEDS THE POLICE POWER 
OF THE STATE, IN THAT IT HAS NO REAL, SUB­
STANTIAL OR RATIONAL RELATION TO THE PUB­
LIC SAFETY, HEALTH, MORALS, OR GENERAL 
WELFARE, BUT HAS FOR ITS PURPOSE AND OB­
JECT, GOVERNMENTALLY SPONSORED AND EN­

FORCED SEPARATION OF RACES, THUS DENYING

ve power 
f organic 
•ession it 
to deter- 
le, arbi- 

motels, 
1 details 
dium is 
hich the 
jislative 
3 public

iciation,

•ely be-

19. Ap- 
■8 U.S.

by its 
might

:, save 
tatute 
le lan- 
igard-

aR.A.

e de- 
pheld



r r



32

iation, that is, a field in which the legislative power 
is supreme unless some specific provision of organic 
law is transgressed. Absent such transgression it 
is for the legislature and not the courts to deter­
mine what is “unnecessary, unreasonable, arbi­
trary and capricious’. Requiring hotels, motels, 
and other rooming houses to advertise full details 
of room charges if they exercise that medium is 
certainly a legislative prerogative with which the 
courts have no power to interfere. A legislative 
finding that such a requirement is in the public 
interest concludes the matter.”

Adams v. Miami Beach Hotel Association, 
77 So. 2d. 465, (Fla.)

“Statute is not unconstitutional merely be­
cause it offers an opportunity for abuses.”

James v. Todd (Ala) 103 So. 2d. 19. Ap­
peal dismissed 79 S. Ct. 288, 358 U.S. 
206, 3 L. Ed. 2d. 235.

“Validity of law must be determined by its 
terms and pi’ovisions, not manner in which it might 
be administered, operated or enforced.”

Clark v. State (Miss) 152 So. 820.

“The state legislature is unrestricted, save 
by the state or federal constitution, and a statute 
passed by it, in the exercise of the powers, the lan­
guage of which is plain, must be enforced, regard­
less of the evil to which it may lead.”

State v. Henry (Miss) 40 So. 152, 5 L.R.A. 
N. S. 340.

If the power exists in the legislative de­
partment to pass an act, the act must be upheld

< t



r r



DEFENDANTS THEIR RIGHTS UNDER THE FIRST, 
THIRTEENTH, AND FOURTEENTH AMENDMENTS 
TO THE UNITED STATES CONSTITUTION, AND 
ARTICLE 1, SECTION 2 OF THE LOUISIANA CON­
STITUTION?

THE REFUSAL TO GIVE SERVICE SOLELY BE­
CAUSE OF RACE THE ARREST AND SUBSEQUENT 
CHARGE ARE ALL UNCONSTITUTIONAL ACTS IN 
VIOLATION OF THE 14TH AMENDMENT OF THE 
UNITED STATES CONSTITUTION, IN THAT THE 
ACT OF THE COMPANY’S REPRESENTATIVE WAS 
NOT THE FREE WILL ACT OF A PRIVATE INDI­
VIDUAL, BUT RATHER AN ACT WHICH WAS EN­
COURAGED, FOSTERED AND PROMOTED BY 
STATE AUTHORITY IN SUPPORT OF A CUSTOM 
AND POLICY OF ENFORCED SEGREGATION OF 
RACE AT LUNCH COUNTERS?

THE ARREST, CHARGE AND PROSECUTION OF 
THE DEFENDANTS ARE UNCONSTITUTIONAL, 
IN THAT IT IS THE RESULT OF STATE AND MU­
NICIPAL ACTION, THE PRACTICAL EFFECT OF 
WHICH IS TO ENCOURAGE AND FOSTER DIS­
CRIMINATION BY PRIVATE PARTIES?

The Court has grouped together for discussion 
the propositions hereinabove enumerated as they appear 
to be related to each other in the sum total of defend­
ants complaint of the unconstitutionality of L.S.A.-R S 
14:59(6).

There is presently no anti-discrimination statute 
in Louisiana, Sections 3 and 4 of Title 4 of the Revised



r



35

Statutes having been repealed by Act 194 of 1954. Nor 
is there any legislation compelling the segregation of the 
races in restaurants, or places where food is served.

As authority supporting the constitutionality of 
L.S.A.-R.S. 14:59(6), the following cases are cited:

In the case of State v. Clyburn, et al., (N.C.) 1958, 
101 S. E. 2d. 295, the defendants, a group of Negroes 
led by a minister, entered a Durham, North Carolina, 
ice cream and sandwich shop which was separated by a 
partition into two parts marked “White” and “Colored”. 
They proceeded to the portion set apart for white patrons 
and asked to be served. Service was refused and the pro­
prietor asked them to leave, or to move to the section 
marked “Colored.” The minister asserted religious and 
constitutional bases for remaining. A city police officer 
placed them under arrest. The defendants were tried 
and convicted on warrants charging violation of state 
statutes which impose criminal penalties upon persons 
interfering with the possession of privately-held property. 
On appeal the Supreme Court of North Carolina affirmed 
the conviction. Finding no “state action” within the pro­
hibition of the Fourteenth Amendment, the Court held 
that the Constitutional rights of defendants had not been 
infringed by refusing them sez-vice or by their subsequent 
arrest.

In resolving the question, “Must a property owner 
engaged in a private enterprise submit to the use of his 
property to others simply because they are members of 
a different race, “the Supreme Court of North Carolina 
said:

of the 
of the 
lilding 
rators 
it the 
' their 
Iment

134, 
h the 
> pri- 
m on 
ct to 
sses- 
lom- 
s his 
dis- 

lish- 
ises-
• in
• no 
his

sti-
ivi-
ex-
all

as-
Hr.
L09



r



“The evidence shows the partitioning of the 
building and provision for serving members of the 
different races in differing portions of the building 
was the act of the owners of the building, operators 
of the establishment. Defendants claim that the 
separation by color for service is a violation of their 
rights guaranteed by the Fourteenth Amendment 
to the Constitution of the United States.” 

* * * * * *
“Our statutes, G. S. Para. 14-126 and 134, 

impose criminal penalties for interfering with the 
possession or right of possession of real estate pri­
vately held. There statutes place no limitation on 
the right of the person in possession to object to 
a disturbance of his actual or constructive posses­
sion. The possessor may accept or reject whom­
soever he pleases and for whatsoever whim suits his 
fancy. When that possession is wrongfully dis­
turbed it is a misdemeanor. The extent of punish­
ment is dependent upon the character of the posses­
sion, actual or constructive, and the manner in 
which the trespass is committed. Race confers no 
prerogative on the intruder; nor does it impair his 
defense.

The Fourteenth Amendment to the Consti­
tution of the United States created no newr privi­
leges. It merely prohibited the abridgment of ex­
isting privileges by state action and secured to all 
citizens the equal protection of the laws.

Speaking with respect to rights then as­
serted, comparable to rights presently claimed, Mr. 
Justice Bradley, in the Civil Rights Cases, 109

36





*  •
37

U. S. 3, 3 S.Ct. 18, 21, 27 L. Ed. 835, after quot- ment;
ing the first section of the Fourteenth Amendment, ?ain^t
said: ‘It is state action of a particular character ihose
that is prohibited. Individual invasion of individ- > con- 
ual rights is not the subject-matter of the amend- such
ment. It has a deeper and broader scope. It nulli- must
fies and makes void all state legislation, and state state
action of every kind, which impairs the privileges o the 
and immunities of citizens of the United States, oi 
which injures them in life, liberty or property with- g29,
out due process of law, or which denies to any of >ting
them the equal protection of the laws. It not only 2) 23
does this, but, in order that the national will, thus pro_
declared, may not be a mere brutum fulmen the jjfe>
last section of the amendment invests congress with ^ or
power to enforce it by appropriate legislation. To n of
enforce what? To enforce the prohibition. To ^ng
adopt appropriate legislation for correcting the ef- 
fects of such pi-ohibited state laws and state acts, inst
and thus to render them effectually null, void and 1(ja_
innocuous. This is the legislative power conferred lg a
upon congress, and this is the whole of it. It does 
not invest congress with power to legislate upon 
subjects which are within the domain of state 
legislation; but to provide modes of relief against 
state legislation or state action, of the kind referred eny
to. It does not authorize congress to create a code gnt
of municipal law for the regulation of private 
rights: but to provide modes of redress against tne 
operation of state laws, and the action of state ses
officers executive or judicial, when these are sub- ted
versive of the fundamental rights specified in the 68
amendment. Positive rights and privileges are ice



rr



33

undoubtedly secured by the fourteenth amendment; 
but they are secured by way of prohibition against 
state laws and state proceedings affecting those 
rights and privileges, and by power given to con­
gress to legislate for the purpose of carrying such 
prohibition into effect; and such legislation must 
necessarily be predicated upon such supposed state 
laws or state proceedings, and be directed to the 
correction of their operation and effect.’

In United States v. Harris, 106 U. S. 629, 
1 S. Ct. 601, 609, 27 L. Ed. 290, the Court, quoting 
from United States v. Cruikshank, 92 U. S. 542, 23 
L. Ed. 588 said: ‘The fourteenth amendment pro­
hibits a state from depriving any person of life, 
liberty, or property without due process of law, or 
from denying to any person the equal protection of 
the laws; but this provision does not add anything 
to the rights of one citizen as against another. It 
simply furnishes an additional guaranty against 
any encroachment by the states upon the funda­
mental rights which belong to every citizen as a 
member of society. The duty of protecting all its 
citizens in the enjoyment of an equality of rights 
was originally assumed by the states, and it re­
mains there. The only obligation resting upon the 
United States is to see that the states do not deny 
the right. The power of the national government 
is limited to this guaranty.’

More than half a century after these cases 
were decided the Supreme Court of the United 
States said in Shelley v. Kraemer, 334 U. S. 1, 68
S. Ct. 836, 92 L. Ed. 1161, 3 A.L.R. 2d. 441: ‘Since



r r



39

the decision of this Court in the Civil Rights Cases, 
1883, 109 U. S. 3, 3 S. Ct. 18, 27 L. Ed. 835, the 
principle has become firmly embedded in our con­
stitutional law that the action inhibited by the first 
section of the Fourteenth Amendment is only such 
action as may fairly be said to be that of the 
States. That Amendment erects no shield against 
merely private conduct, however discriminatory or 
wrongful.’ This interpretation has not been modi­
fied: Collins v. Hardyman, 341 U. S. 651, 71 S. Ct. 
937, 95 L. Ed. 1253; District of Columbia v. 
Thompson Co., 346 U. S. 100, 73 S. Ct. 1007, 97 L. 
Ed. 1480; Williams v. Yellow Cab Co., 3 Cir. 200
F. 2d. 302, certiorari denied Dargan v. Yellow Cab 
Co., 346 U. S. 840, 74 S. Ct. 52, 98 L. Ed. 361.

Dorsey v. Stuyvesant Town Corp., 299 N. Y. 
512, 87 N. E. 2d. 541, 14 A. L. R. 2d. 133, pre­
sented the right of a corporation, organized under 
the New York law to provide low cost housing, to 
select its tenants, with .the right to reject on ac­
count of race, color, or religion. The New York 
Court of Appeals affirmed the right of the cor­
poration to select its tenants. The Supreme Court 
of the United States denied certiorari, 339 U. S. 
981, 70 S. Ct. 1019, 94 L. Ed. 1385.

The right of an operator of a private enter­
prise to select the clientele he will serve and to 
make such selection based on color, if he so desires, 
has been repeatedly recognized by the appellate 
courts of this nation. Madden v. Queens County 
Jockey Club, 269 N. Y. 249, 72 N. E. 2d. 697, 1
A. L. R. 2d. 1160; Terrell Wells Swimming Pool

2d. 824; 
56 Mich. 
Younger 
f v. Sav- 
Ysla v. 

3, 26 P. 
Co., 150

3p. 498, 
iff, 147 
Fletcher 
. E. 2d. 
!6 S. E. 
jrve de- 
ng des- 
ndants.

the ice 
)f local 
ige tax 
> whom 
rued to 
ie sug- 
rant of 
d with 
by the 
enying 
oy the 
;d was 
1 after 
ght to



r r



v. Rodriguez Tex. Civ. App. 182 S. W. 2d. 824; 
Booker v. Grand Rapids Medical College, 156 Mich. 
95, 120 N. W. 5S9, 24 L. R. A., N. S. 447; Younger 
v. Judah, 111 Mo. 303, 19 S. W. 1109; Goff v. Sav­
age, 122 Wash. 194, 210 P. 374, De La Ysla v. 
Publix Theatres Corporation, 82 Utah 598, 26 P. 
2d. 818; Brown v. Meyer Sanitary Milk Co., 150 
Kan. 931, 96 P. 2d. 651;

Horn v. Illinois Cent. R. Co., 327 111. App. 498, 
64 N. E. 2d. 574; Coleman v. Middlestaff, 147 
Cal. App. 2d. Supp. 833, 305 P. 2d. 1020; Fletcher 
v. Coney Island, 100 Ohio App. 259, 136 N. E. 2d. 
344; Alpaugh v. Wolverton, 184 Va. 943, 36 S. E. 
2d. 906. The owner-operator’s refusal to serve de­
fendants, except in the portion of the building des­
ignated by him, impaired no rights of defendants.

The fact that the proprietors of the ice 
cream parlor contributed to the support of local 
government and paid a license or privilege tax 
which license contained no restrictions as to whom 
the proprietors could serve cannot be construed to 
justify a trespass, nor is there merit in the sug­
gestion that the complaint on which the warrant of 
arrest issued, signed by an officer charged with 
the duty of enforcing the laws, rather than by the 
injured party, constituted state action. denying 
privileges guaranteed to the defendants by the 
Fourteenth Amendment. The crime charged was 
committed in the presence of the officer and after 
a respectful request to desist. He had a right to 
arrest. G. S. Par. 15-41.



rr



t

Screws v. United States, 325 U. S. 91, 65 S.
Ct. 1031, 85 L. Ed. 1368; and State v. Scoggin, 236 
N. C. 19, 72 S. E. 2d. 54, cited and relied upon 
by defendants, appellants, to support their position, 
have no factual analogy to this case. Nothing 
said in those cases in any way supports the position 
taken by defendants in this case.”

In the case of Browning v. Slendereila Systems of 
Seattle, (Wash) (.1959), 341 P. 2d. 859, two justices of 
the Supreme Court of Washington dissented in a ruling 
of that court holding a reducing salon came within the 
purview of an Anti-Discrimination Statute of that State.

In their dissent it was said:

“Because respondent is a Negress, the Slen- 
derella Systems of Seattle, a private enterprise, 
courteously refused to give her a free reducing 
treatment, as advertised. She thereupon became 
abusive and brought this civil action for the injury 
to her feelings caused by the racial discrimination.

This is the first such action in this state. In 
allowing respondent to maintain her action, the 
majority opinion has stricken down the constitu­
tional right of all private individuals of every race 
to choose with wrhom they will deal and associate 
in their private affairs.

No sanction for this result can be found in 
the recent segregation cases in the United States 
supreme court involving Negro rights in public 
schools and public busses. These decisions were 
predicated upon section 1 of the fourteenth amend-

41

hich

ited 
are 

tate 
■ or 
w i­
lted 
•son 
:ess 
ris- 
lics

leld
nth
aad

of
pie.
hat
oy-
;ole
ub-

ith
ion
ted
:he
ck,
pel
af-



r r



ment to the United States constitution, which 
reads:

‘All persons born or naturalized in the United 
• States, and subject to the jurisdiction thereof, are 

citizens of the United States and of the State 
wherein they reside. No State shall make or 
enforce any law which shall abridge the privi­
leges or immunities of citizens of the United 
States: nor shall any State deprive any person 
of life, liberty, or property, without due process 
of law; nor deny to any person within its juris­
diction the equal protection of the laws.” (Italics 
mine.)

In the pre-Warren era, the courts had held 
that the privileges of Negroes under the fourteenth 
amendment, supra, were not abridged if they had 
available to them public services and facilities of 
equal quality to those enjoyed by white people. 
The Warren antisegregation rule abandoned that 
standard and substituted the unsegregated enjoy­
ment of public services and facilities as the sole 
test of Negro equality before the law in such pub­
lic institutions.

The rights and privileges of the fourteenth 
amendment, supra, as treated in the segregation 
decisions and as understood by everybody, related 
to public institutions and public utilities for the 
obvious reason that no person, whether white, black, 
red, or yellow, has any right whatever to compel 
another to do business with him in his private af­
fairs.



r r



43

No public institution or public utility is in­
volved in the instant case. The Slenderella enter­
prise was not established by law to serve a public 
purpose. It is not a public utility with monopoly 
prerogatives granted to it by franchise in exchange 
for an unqualified obligation to serve everyone 
alike. Its employees are not public servants or 
officers. It deals in private personal services. Its 
business, like most service trades, is conducted pur­
suant to informal contracts. The fee is the con­
sideration for the service. It is true the contracts 
are neither signed, sealed, nor reduced to writing. 
They are contracts, nevertheless, and, as such, must 
be voluntarily made and are then, and only then, 
mutually enforceable. Since either party can re­
fuse to contract, the respondent had no more right 
to compel service than Slenderella had to compel her 
to patronize its business.

There is a clear distinction between the non­
discrimination enjoined upon a public employee in 
the discharge of his official duties, which are pre­
scribed by laws applicable to all, and his unlimited 
freedom of action in his private affairs. There is 
no analogy between a public housing project oper­
ated in the government’s proprietary capacity, 
wherein Negroes have equal rights, and a private 
home where there are no public rights whatever 
and into which even the King cannot enter.

No one is obliged to rent a room in one’s 
home; but, if one chooses to operate a boarding 
house therein, it can be done with a clientele se­
lected according to the taste or even the whim of

in pri-

1 States

certain 
or dis-

)f Eng- 
liberty 

ight to 
l think 
hat oc- 
md for 
:ree to 
irse of 
consti- 
; every 
;, they 
dment 
xcuses 
selves, 
istitu- 
th the 
?cified 
t they 
[•eseen 
m.
( well 
meri- 
over- 
seek



r-



the landlord. This right of discrimination in pri­
vate businesses is a constitutional one.

“The ninth amendment of the United States 
constitution specifically provides:

‘The enumeration in the Constitution, of certain 
rights shall not be construed to deny or dis­
parage others retained by the people.’

All persons familiar with the rights of Eng­
lish speaking peoples know that their liberty 
inheres in the scope of the individual’s right to 
make uncoerced choices as to what he will think 
and say; to what religion he will adhere; what oc­
cupation he will choose; where, when, how and for 
whom he will work, and generally to be free to 
make his own decisions and chooses his course of 
action in his private civil affairs. These consti­
tutional rights of law-abiding citizens are the every 
essence of American liberties. For instance, they 
far outweigh in importance the fifth amendment 
to the United States constitution which excuses 
criminals from giving evidence against themselves. 
It was, in fact, an afterthought. Our constitu­
tional forefathers were chiefly concerned with the 
rights of honest men. They would have specified 
their rights with the same particularity that they 
did in regard to criminals if they had foreseen 
that courts would become unfamiliar with them.

Cash registers ring for a Negro’s as well 
as for a white man’s money. Practically all Ameri­
can businesses, excepting a few having social over­
tones or involving personal services, actively seek



r r



45

Negro patronage for that reason. The few that 
do not serve Negroes adopt that policy either be­
cause their clientele insist upon exclusiveness, or 
because of the reluctance of employees to render 
intimate personal service to Negroes. Both the 
clientele and the business operator have a consti­
tutional right to discriminate in their private af­
fairs upon any conceivable basis. The right to ex­
clusiveness, like the right to privacy, is essential 
to freedom. No one is legally aggrieved by its ex­
ercise.

No sanction for destroying our most precious 
heritage can be found in the criminal statute cited 
by the majority opinion. It does not purport to 
create a civil cause of action. The statute refers 
to “places of public resort”. (Italics mine). This 
phrase is without constitutional or legal signifi- 

'cance. It has no magic to convert a private busi­
ness into a governmental institution. If one man a 
week comes to a tailor shop, it is a place of public 
resort, but that does not make it a public utility or 
public institution, and the tailor still has the right to 
select his private clientele if he chooses to do so. 
As a matter of fact, the statute in question is not 
even valid as a criminal statute. Obviously, this 
is not the occasion, however, to demonstrate its 
unconstitutionality.

The majority opinion violates the thirteenth 
amendment to the United States constitution. It 
provides, inter alia:

(Italics

amend- 
n com- 
When 

to give 
lvolun- 
0 Fla.

Negro 
of the 
id cen- 
United 
3ng of 
to the 
white 

)es. I

Johnson’s 
r., F. 2d. 
n federal 
Virginia 
to serve 

5 Act of

i Fourth 
want of 

ction, on 
use serv- 
'mmerce,



r r



“Neither slavery nor involuntary servitude * * * 
shall exist within the United States * * *’ (Italics 
mine)

Negroes should be familiar with this amend­
ment. Since its passage, they have not been com­
pelled to serve any man against their will. When 
a white woman is compelled against her will to give 
a Negress a Swedish massage, that too is involun­
tary servitude. Henderson v. Coleman, 150 Fla.
185, 7 So. 2d. 177.

Through what an arc the pendulum of Negro 
rights has swung since the extreme position of the 
Dred Scott decision: Those rights reached dead cen­
ter when the thirteenth amendment to the United 
States constitution abolished the ancient wrong of 
Negro slavery. This court has now swung to the 
opposite extreme in its opinion subjecting white 
people to “involuntary servitude” to Negroes. I 
dissent.”

In the case of Williams versus Howrard Johnson’s 
Restaurant, (Va.) (1959), U. S. C. A. 4th. Cir., F. 2d. 
845, a Negro attorney brought a class action in federal 
court against a restaurant located in Alexandria, Virginia 
seeking a declaratory judgment that a refusal to serve 
him because of race, violated, the Civil Rights Act of 
1875, etc.

On appeal, the Court of Appeals for the Fourth 
Circuit affirmed the lower court’s dismissal for want of 
of jurisdiction and failure to state a cause of action, on 
the ground that defendant’s restaurant, could refuse serv­
ice to anyone, not being a facility of interstate commerce,

46



r r '



and that the Civil Rights Act of 1875, did not embrace 
actions of individuals. Further, that as an instrument 
of local commerce, it was at liberty to deal with such per­
sons as it might select.

The court said:
“Section 1 and 2 of the Civil Rights Act of 

1875, upon which the plaintiff’s position is based in 
part, provided that all persons in the United States 
should be entitled to the full and equal enjoyment 
of accommodations, advantages, facilities and privi­
leges of inns, public conveyances and places of 
amusement, and that any person who should vio­
late this provision by denying to any citizen the 
full enjoyment of any of the enumerated accom­
modations, facilities or privileges should for every 
such offense forfeit and pay the sum of $500 to 
the person aggrieved. The Supreme Court of the 
United States, however, held in Civil Rights Cases.
109 U. S. 3, that these sections of the Act were 
unconstitutional and were not authorized by either 
the Thirteenth or Fourteenth Amendments of the 
Constitution. The court pointed out that the Four­
teenth Amendment was prohibitory upon the states 
only, so as to invalidate all state statutes which 
abridge the privileges or immunities of citizens 
of the United States or deprive them of life, lib­
erty or property without due process of law, or deny 
to any person the equal protection of the laws; 
but that the amendment did not invest Congress 
with power to legislate upon the actions of in­
dividuals, which are within the domain of state

47

he question 
law in the 
rce was not 
te were not 
19). With 
the Court 

xlations in 
amusement 
r servitude 
lges rights 
from state 
it decision,
1 by refer-

statute of 
roes from 
m that he 
’ourteenth 
rom mak- 
privileges 
ed States 
ion of the 
the state 

the facili- 
'■> engaged 
blage; he 
3m of ex- 
5 and he 
i in these 
te action 
the Con- 
that the



r



legislation. The Court also held that the question 
whether Congress might pass such a law in the 
exercise of its power to regulate commerce was not 
before it, as the provisions of the statute were not 
conceived in any such view (109 U. S. 19). With 
respect to the Thirteenth Amendment, the Court 
held that the denial of equal accommodations in 
inns, public conveyances and places of amusement 
does not impose the badge of slavery or seiwitude 
upon the individual but, at most infringes rights 
protected by the Fourteenth Amendment from state 
aggression. It is obvious, in view of that decision, 
that the present suit cannot be sustained by refer­
ence to the Civil Rights Act of 1875.

The plaintiff concedes that no statute of 
Virginia requires the exclusion of Negroes from 
pubic restaurants and hence it would seem that he 
does not rely upon the provisions of the Fourteenth 
Amendment which prohibits the states from mak­
ing or enforcing any law abridging the privileges 
and immunities of citizens of the United States 
or denying to any person the equal protection of the 
law. He points, however, to statutes of the state 
which requires the segregation of races in the facili­
ties furnished by carriers and by persons engaged 
in the operation of places of public assemblage; he 
emphasizes the long established local custom of ex­
cluding Negroes from public restaurants and he 
contends that the acquiescence of the state in these 
practices amounts to discriminatory state action 
which falls within the condemnation of the Con­
stitution. The essence of the argument is that the

48



r - r



49

state licenses restaurants to serve the public and 
thereby is burdened with the positive duty to pro­
hibit unjust discrimination in the use and enjoy­
ment of the facilities.

This argument fails to observe the important 
distinction between activities that are required by 
the state and those which are carried out by vol­
untary choice and without compulsion by the people 
of the state in accordance with their own desires 
and social practices. Unless these actions are per­
formed in obedience to some positive provision of 
state law they do not furnish a basis for the pend­
ing complaint. The license laws of Virginia do not 
fill the void. Section 35-26 of the Code of Virginia, 
1950, makes it unlawful for any person to operate 
a restaurant in the state without an unrevoked 
permit from the Commissioner, who is the chief 
executive officer of the State Board of Health. The 
statute is obviously designed to protect the health 
of the community but it does not authorize state 
officials to control the management of the business 
or to dictate what persons shall be served. The 
customs of the people of the state do not constitute 
state action within the prohibition of the Four­
teenth Amendment. As stated by the Supreme 
Court of the United States in Shelly v. Kraemer, 
334 U. S. 1; 68 S. Ct. 836, 842:

‘Since the decision of this court in the Civil 
Rights Cases, 1883, 109 U. S. 3 * * * the prin­
ciple has become firmly embedded in our consti­
tutional law that the action inhibited by the first 
section of the Fourteenth Amendment is only

<at of 
shield 
■ ais­
led.)”

; Drews, 
!, 1960), 
immer— 
ere pros­
it Court 

It was 
r arrest 
corpora- 
V of not 
oyed by 
e policy 
len they 
ave, but 
en sum- 
‘endants 
sistance 
rom the

though 
; public 

use to 
i action 
within 
phrase 
of the 

publicly





50

such action as may fairly be said to be that of 
the states. That Amendment erects no shield 
against merely private conduct, however dis­
criminatory or wrongful. (Emphasis supplied.)”

In the case of State of Maryland versus Drews, 
Et. Als., Cir. Court for Baltimore Co. (May 6, 1960), 
(Race Relations Law Reporter, Vol. 5, No. 2, Summer— 
1960) five persons, three white and two Negro, were pros-j 
ecuted in the Baltimore County, Maryland Circuit Court 
on the statutory charge of disturbing the peace. It was 
found that defendants had on the date of their arrest 
entered an amusement park owned by a private corpora­
tion, which unknown to defendants, had a policy of not 
serving colored persons. A special officer employed by 
the corporate owners informed defendants of the policy j 
and asked the two colored defendants to leave. When they 
refused, all five defendants were requested to leave, but 
all refused. Baltimore County police who were then sum­
moned to the area repeated the requests; but defendants 
again refused to leave; that over the physical resistance 
of defendants, they were arrested and removed from the 
premises.

The Court held: (1) that the park owner, though 
corporately chartered by the state and soliciting public- 
patronage, could ‘arbitrarily restrict (the park’s) use to 
invitees of his selection’ etc. * * * (3) that such action 
occurred in a ‘place of public resort or amusement’ within 
terms of the statute allegedly violated, the quoted phrase 
clearly applying to all places where some segment of the 
public habitually gathers, and not merely to publicly



r r



51

owned places where all members of the public without 
exception are permitted to congregate.

The Court said:
“The first question which arises in the case 

is the question whether an owner of private prop­
erty to which substantial numbers of persons are 
invited has any right to discriminate with respect 
to persons invited thereon, that is to say, whether 
such owner may exercise his own arbitrary free­
dom of selection in determining who will be ad­
mitted to and who will be permitted to remain upon 
his property under circumstances where such pri­
vate property is being used as a place of resort or 
amusement. This question has been clearly an­
swered in the affirmative by the authorities. In 
Madden v. Queens County Jockey Club, 72 N. E.
2d. 697 (Court of Appeals of New York), it was 
said at Page 698:

‘At common law a person engaged in a public 
calling such as innkeeper or common carrier, 
was held to be under a duty to the general pub­
lic and was obliged to serve, without discrimina­
tion, all who sought service, * * * On the other 
hand, proprietors of private enterprises, such as 
places of amusement and resort, were under no 
such obligation, enjoying an absolute power to 
serve whom they pleased. * * * * *

‘The common-law power of exclusion, noted 
above, continues until changed by legislative 
enactment.’

as precisely 
Maryland 

>f Appeals, 
t:

mmon car- 
dlings, one 
c.’

lly pointed 
f the com- 
of a cor­

and. The 
ies, supra, 

law, has 
ation was 

Howard 
>tauranti 
wer Sys- 
istrict of 
aurant) ; 
).C.) for 
16, 1960

ty arbi- 
>eIection 
s in the 
the leg- 
I’nment.
•n: Did 
sort or 
of the 

[ace of



r r



The ruling therein announced was precisely 
adopted in the case of Greenfield v. Maryland 
Jockey Club, 190 Md. 96, the Court of Appeals, 
stating at Page 102 of its opinion that:

‘The rule that, except in cases of common car- 
riei-s, innkeepers and similar public callings, one 
may choose his customers is not archaic.’

The Court of Appeals also carefully pointed 
out in the Greenfeld case that the rule of the com­
mon law is not altered even in the case of a cor­
poration licensed by the State of Maryland. The 
doctrine of the Madden and Greenfeld cases, supra, 
announced as existing under the common law, has 
been held valid, even where the discrimination wras 
because of race or color. See Williams v. Howard 
Johnson Restaurant, 268 F. 2d. 845 (restaurant! 
(CCA 4 th ); Slack v. Atlantic White Tower Sys­
tems, Inc., No. 11073 U.S.D.C. for the District of 
Maryland, D. R. et. al. Thomsen, J. (restaurant),' 
Hackley v. Art Builders, Inc. et al (U.S.D.C.) for 
the District of Maryland, D. R. January 16, 1960 
(real estate development).

The right of an owner of property arbi- 
trarily to restrict its use to invitees of his selection 
is the established law of Maryland. Changes in the 
rule of law conferring that right are for the leg­
islative and not the judicial branch of government.

We pass then to the second question: Did 
such action occur at a place of public resort or 
amusement? This involves a determination of the 
legislative meaning of the expression “place of



r r



public resort or amusement”. If the legislative 
intent was that the words were intended to apply :e> 
only to publicly owned places of resort or amuse­
ment, then, manifestly, the testimony would not 
support a conviction here. By the same token, if u" 
the expression was intended to apply only to places 
in which all members of the public without excep- ^
tion were authorized or permitted to congregate, u‘
again there would be no evidence to support con­
viction here. On the other hand, if the reasonable at
intent and purpose of the quoted phrase was to 3r
prohibit disorderly conduct in a place where some 
segment of the public habitually gathers and con­
gregates, the evidence wrould clearly justify a con- Com., 
viction. iction

t ofThe first suggested interpretation of the words 
must be rejected, because of the fact that the same 
statute uses the term ‘public worship’, and this fact 1 ^  
utterly destroys a contention that the word ‘public’ 
has a connotation of public ownership because of U^it 
our constitutional separation of church and state.

veler,
The second suggested interpretation is ,.00m

equally invalid, because its effect, in the light of train
the rule of law announced in the Greenfeld case, tative
supra, would be the precise equivalent of the first other
suggested interpretation of the phrase. Moreover, c| cjg_
such an interpretation necessarily would mean that ation
the police authorities would be powerless to prevent vern-
disorder or bring an end to conditions of unrest t _T„_
and potential disturbance where large numbers of to ^
the public may be in congregation. To suggest right
such an interpretation is to refute it.



rr



t
54

In the opinion of this Court the statute has 
clear application to any privately owned place, 
where crowds of people other than the owner of 
the premises habitually gather and congregate, and 
where, in the interest of public safety, police au­
thorities lawfully may exercise their function of 
preventing disorder. See Askew v. Parker, 312
P. 2d. 342 (California). See also State v. Lanou- 
ette, 216 N.W. 870 (South Dakota).

I t is the conclusion of the Court that 
the Defendants are guilty of the misdemeanor 
charged.”

In the case of Henry v. Greenville Airport Com., 
U. S. Dist. Court (1959) 175 F. Supp. 343, an action 
asserting federal jurisdiction on the basis of diversity of 
citizenship, general federal question, and as a class action 
under federal civil rights statutes was brought in a fed­
eral district court by a Negro against the Greenville, S. C., 
airport commission, members thereof, and the airport 
manager. The complaint alleged that the manager even 
though informed that plaintiff was an interstate traveler, 
ordered him to use a racially segregated waiting room. 
Plaintiff’s motion for a preliminary injunction to restrain 
defendant from making distinctions based on color relative 
to services at the airport was denied in addition to other 
reasons, because it was not alleged that defendants had de­
nied him any right under color of state law. The allegation 
that defendants received contributions from ‘the Govern­
ment’ to construct and maintain portions of the airport was 
also stricken because it was also held, to have nothing to do 
with the claim that he had been deprived of a civil right





55

under state law. Defendant’s motion to dismiss was 
granted because plaintiff not having alleged that any 
thing complained of was done under color of a specified 
state law, failed to state a cause of action under Section 
1343 of Title 28 and it being inferable from the com­
plaint that he went into the waiting room in order to 
instigate legislation rather than in quest of waiting room 
facilities, he had no cause of action under Section 1981 of 
Title 42 which was said to place duties on Negroes equal 
to those imposed on white persons and to confer no rights 
on Negroes superior to those accorded white persons. It 
was emphasized that activities which are required by the 
state, must be distinguished from those carried out by 
voluntary choice by individuals in accordance with their 
own desires and social practices, the latter kind not being 
state action.

The court said:

The plaintiff speaks of discrimination with­
out unequivocally stating any fact warranting 
an inference of discrimination. The nearest thing 
to an unequivocal statement in his affidavit is the 
asserted fact that the purported manager of the 
Greenville Air Terminal ‘advised him that “we 
have a waiting room for colored folks over there”. 
Preceding that statement plaintiff’s affidavit con­
tains the bald assertion that the manager ‘ordered 
me out’, ilowever, the only words attributed to 
the manager by the plaintiff hardly warrant any 
such inference or conclusion. A like comment prop­
erly should be made concerning the further as­
sertion in plaintiff’s affidavit that he ‘was required



r '



to be segregated’. What that loose expression 
means is anyone’s guess. From whom was he segre­
gated? The affidavit does not say. Was he segre­
gated from his family or from his friends, ac­
quaintances or associates, from those who desired 
his company and he theirs? There is nothing in the 
affidavit to indicate such to be true. Was he seg­
regated from people whom he did not know and who 
did not care to know him? The affidavit is silent as 
to that also. But suppose he was segregated from 
people who did not care for his company or asso­
ciation, what civil right of his was thereby in­
vaded? If he was trying to invade the civil rights 
of others, an injunction might be more properly 
invoked against him to protect their civil rights. 
I know of no civil or uncivil right that anyone has, 
be he white or colored, to deliberately make a nui­
sance of himself to the annoyance of others, even 
in an effort to create or stir up litigation.' The 
right to equality beiore the law, to be free from dis­
crimination, invests no one with authority to re­
quire others to accept him as a companion or social 
equal. The Fourteenth Amendment does not reach 
that low level. Even whites, as yet, still have the 
right to choose their own companions and associ­
ates, and to preserve the integrity of the race with 
which God almighty has endowed them.

Neither in the affidavit nor in the com­
plaint of the plaintiff is there any averment or 
allegation that whatever the defendants may have 
done to the plaintiff was done at the direction or 
under color of state law. It is nowhere stated in



r



either what right the plaintiff claims was denied 
him under color of state law. A state law was 
passed in 1928 that ‘created a Commission * * * 
to be known as Greenville Airport Commission’. 
That Commission consists of five members, two se­
lected by the City Council of the City of Green­
ville, two by the Greenville County Legislative 
Delegation, and the fifth member by the majority 
vote of the other four. The Commission so created 
is ‘vested with the power to receive any gifts or 
donations from any source, and also to hold and 
enjoy property, both real and personal, in the 
County of Greenville, * * * for the purpose of estab­
lishing and maintaining aeroplane landing fields 
* * *; and to make such rules and regulations as 
may be necessary in the conduct and operation of 
said aeroplane landing fields.” (Emphasis added). 
Further, the Act authorizes the ‘The City of Green­
ville * * * to appropriate and donate to said Com­
mission such sums of money as it may deem expedi­
ent and necessary for the purpose aforesaid’. There 
is nothing in the Act that requires that Commission 
to maintain waiting rooms of any sort, segregated 
or unsegregated.

There is nothing in the affidavit or com­
plaint of the plaintiff which could be tortured into 
meaning that the defendants had denied the plain­
tiff the use of the authorized aiz-port landing fields. 
He had a ticket which authoz-ized him to board a 
plane there. He was not denied that right. In fact 
thez-e is no clear cut statement of any legal duty 
owed the plaintiff that defendants breached; and



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58

there is no showing that the plaintiff was damaged 
in any amount by anything done by the defendants, 
or by any one c : them, under color of state law.’ 

* * * * * *  * *
“The jurisdiction of this court is invoked by 

the plaintiff under Section 1343, Title 28, U. S. 
Ode. It is appropriate, therefore, that we con­
sider the extent of the jurisdiction that is therein 
conferred on this court. By it district courts are 
given jurisdiction of civil actions ‘* * * to redress 
the deprivation, under color of state law, * 
of any right, privilege, or immunity secured by the 
Constitution of the United States or by any Act of 
Congress providing for equal rights of citizens 
* * *’. Hence we must look to the complaint to 
ascertain (1) what right plaintiff claims he has 
been deprived of, (2) secured by what constitu­
tional provision or Act of Congress providing for 
equal rights of citizens, and (3 ) under color of what 
state law? It is not enough for the plaintiff to 
allege that he has been deprived of a right or a 
privilege. He must go further and show what right, 
or privilege, he has been deprived of, by what con­
stitutional provision or Act of Congress it is se­
cured, and under color of what state law he has 
been deprived of his stated right. If the plaintiff 
fails to allege any one or more of the specified ele­
ments his action will fail as not being within the 
jurisdiction of this court.

As pointed out hereinabove, there is no alle­
gation in the complaint that anything complained 
of was done under color of a specified state law.



r



59

The Court has been pointed to no state law requir­
ing the separation of the races in airport waiting 
rooms, and its own research has .developed none. 
Moreover, there is no state law that has been 
brought to the Court’s attention, or that it has 
discovered, which requires the defendants, or any­
one else, to maintain waiting rooms at airports, 
whether segregated or unsegregated. Hence the ad­
vice which it is alleged that the ‘purported man­
ager’ of the Airport gave the plaintiff, saying 
‘we have a waiting room for colored folks over 
there,’ could not have been given under color of a 
state law since there is no state law authorizing 
or commanding such action.

In connection with the tendered issue of the 
court’s jurisdiction, plaintiff claims that he has a 
cause of action arising under Section 1981, Title 
42, U. S. Code. It provides:

“All persons within the jurisdiction of the United 
States shall have the same right in every state 
* * * to the full and equal benefit of all laws 
and proceedings for the security of persons and 
property as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, penalties, 
taxes, licenses and exactions of every kind * * *’ 
(Emphasis added).

The undoubted purpose of Congress in enact­
ing Section 1981, was to confer on negro citizens 
rights and privileges equal to those enjoyed by white 
citizens and, at the same time, to impose on them 
like duties and responsibilities. The court’s attention



r



60

has been directed to no law that confers on any 
citizen, white or negro, the right or privilege of 
stirring up racial discord, of instigating strife be­
tween the races, of encouraging the destruction of 
racial integrity, or of provoking litigation, espe­
cially when to do so the provoker must travel a 
great distance at public expense.

It is inferable from the complaint that there 
were waiting room facilities at the airport, but 
whether those accorded the plaintiff and other 
negroes were inferior, equal or superior to those 
accorded white citizens is not stated. It is also 
inferable from the complaint that the plaintiff 
did not go to the waiting room in quest of waiting 
room facilities, but solely as volunteer for the pur­
pose of instigating litigation which otherwise would 
not have been started. The Court does not and 
should not look with favor on volunteer trouble 
makers or volunteer instigators of strife or litiga­
tion. A significant feature of Section 1981, which 
by some is little noticed and often ignored, is that 
it places squarely on negroes obligations, duties and 
responsibilities equal to those imposed on white citi­
zens, and that said Section does not confer on 
negroes rights and privileges that are superior and 
more abundant than those accorded white citizens.

Williams v. Howard Johnson’s Restaurant, 
et. al. argued before the Fourth Circuit Court of 
Appeals June 15, 1959, is in many respects similar 
to the instant case. As here, the plaintiff had a gov­
ernment job. He went from his place of public em­
ployment into the State of Virginia to demand that



r r



61

he be served in a restaurant known to him to be 
operated by its owner, the defendant, solely for 
white customers. He invoked the jurisdiction of the 
court both on its equity side and on its law side 
for himself and for other negroes similarly sit­
uated. The suit w:as dismissed by the district court. 
Upon the hearing it was conceded that no statute 
of Virginia required the exclusion of negroes from 
public restaurants. Hence the Fourteenth Amend­
ment didn’t apply. No action was taken by the 
defendant under color of state law. Notwithstand­
ing the absence of a state lawT applicable to the sit­
uation, the plaintiff argued that the long estab­
lished local custom of excluding negroes from white 
restaurants had been acquiesced in by Virginia for 
so long that it amounted to discriminatory state 
action. The Appellate Court disagreed, and so do I. 
As pointed out in Judge Soper’s opinion in the 
Howard Johnson case. ‘This argument fails to ob­
serve the important distinction between activities 
that are required by the state and those which are 
carried out by voluntary choice and without com­
pulsion by the people of the state in accordance 
with their own desires and social practices.’ Fur­
ther Judge Sopor said:

‘The customs of the people of a state do 
not constitute state action within the prohibition 
of the Fourteenth Amendment. As stated by the 
Supreme Court of the United States in Shelly v. 
Kraemer, 334 U.S. 1, 68 S. Ct. 836, 842 (92 
L.ED. 1161):



r r



62

‘Since the decision of this court in the Civil 
Rights Cases, 18S3, 109 U. S. 3 * * * the prin­
ciple has become firmly embedded in our con­
stitutional law that the action inhibited by the 
first section of the Fourteenth Amendment is 
only such action as may fairly be said to be 
that of the States. That Amendment erects no 
shield against merely private conduct, however 
discriminatory or wrongful.’ ” (Emphasis sup­
plied)

To say that the right of one person ends 
where another’s begins has long been regarded as 
a truism under our system of constitutional gov­
ernment. While the rights and privileges of all 
citizens are declared to be equal by our constitu­
tion there is no constitutional command that they 
be exercised jointly rather than severally; and, if 
there were such a constitutional command, the 
rights and privileges granted by the constitution 
would be by it also destroyed. A constitution so 
written or interpreted would be an anomaly.”

In the case of Wilmington Parking Authority and 
Eagle Coffee Shoppe, Inc. versus Burton, (Del. - 1960) 
157 A. 2d.. 894, a Delaware Negro citizen was refused 
service because of race by a Wilmington restaurant lo­
cated in a leased space in a public parking building 
owned by the Wilmington Parking Authority, a state 
agency. He bi ought a class action in a state chancery 
court asking for a declaratory judgment that such dis­
crimination violated the Fourteenth Amendment and for 
injunctive relief.

1 1



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1

63

On appeal the state supreme court reversed the 
trial court.

The appellate court held the fundamental problem 
to be whether the state, directly or indirectly, ‘in reality’, 
created or maintained the facility at public expense or 
controlled its operation; for only if such was the case the 
Fourteenth Amendment would apply.

The court held that the Authority did not locate 
the restaurant within the building for the convenience 
and service of the public using the parking facilities and 
had not, directly or indirectly, operated nor financially 
enabled it to operate.

It was held the Authority’s only concern in the 
restaurant—the receipt of rent which defrayed part of the 
operating expense of providing the public with off-street 
parking—was insufficient to make the discriminatory act 
that of the state. And the- fact that the City of Wilming­
ton had originally ‘advanced’ lo c,( of the facilities, cost 
(the balance being financed by an Authority bond issue) 
was held not to make the enterprise one created at pub­
lic expense for ‘slight contributions’ were insufficient to 
cause that result.

Finally, it was held the fact that the leasee sold 
alcohol beverages did not make it an inn or tavern, which 
by common law must not deny service to any one asking 
for it; rather, it functioned primarily as a private res­
taurant, which by common law and state statute might 
deny service to anyone offensive to other customers to the 
injury of its business.



r r



1

64

“We think the case before us is distinguishable 
from the cases relied on by the plaintiff. In the 
first place, it is quite apparent, nor is there any 
suggestion to the contrary made by the plaintiff, 
that the establishment of a restaurant in the space 
occupied by Eagle is a pure happenstance and was 
not intended as a service to the public using the 
parking facility. As far as the record before 
us indicates, it was immaterial to the Author­
ity what type of business would occupy the 
space now occupied by Eagle. The Authority’s sole 
interest was in the obtaining of money in the form 
of rent. That money is thereafter used by the 
Authority to support the public purpose of sup­
plying off-street parking from which the plaintiff 
and the rest of the public benefit.

It is further clear from this record, and 
from the Ranken case, that at no time .did the 
Authority contemplate the establishment of a res­
taurant in the structure for the use of its parking 
patrons. On the contrary, the commercial leases 
entered into by the Authority were given to the 
highest bidders in terms of rent after the solici­
tation of bids by public advertisement. The deci­
sion to lease to a particular lessee was made upon 
the considerations of the applicants’ financial re­
sponsibility and the amount of rent agreed to be 
paid. It is thus apparent that this case completely 
lacks the element of furnishing sex-vice to the public 
through the means of a lease to private enterprise. 
The only purpose for this lease is to supply a por­
tion of the additional money required to pei-mit



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65

the Authority to furnish the only public service 
it is authorized to furnish, viz., public off-street 
parking.

The plaintiff argues that the use of public 
money to purchase a portion of the land required 
brings this case within the rule of the cited author­
ities. But we think not. At the most, approximately 
15% of the total cost is represented by the public 
‘advance’ of money. To accept the plaintiffs view 
would require us in all similar cases to measure the 
respective contributions made by public and private 
money and to determine at what point the public 
contribution changes the nature of the enterprise. 
It is obvious that there is no guide for judicial 
speculation upon such a change. If it is said that 
the contribution of any public money is sufficient 
to change the nature of the enterprise, the answer 
is that it has been held that a slight contribution 
is insufficient. Cf. Eaton v. Board of Managers,
D. C. 164 F. Supp. 191.

Fundamentally, the problem is to be resolved 
by considerations of whether or not the public gov­
ernment, either directly or indirectly, in reality, is 
financing and controlling the enterprise which is 
charged with racial discrimination. If such is the 
case, then the Fourteenth Amendment applies; if 
it is not the case, the operators of the enterprise 
are free to discriminate as they will. Shelley v. 
Kraemer, 334 U.S.. 1, 68 S. Ct. 836, 842, 91 L. Ed. 
1161. We neither condemn nor approve such pri­
vate discriminatory practices for the courts are 
not the keepers of the morals of the public. We



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66

apply the law, whether or not that law follows the 
current fashion of social philosophy.

Particularly is this true of a state court 
which is called upon in this field to apply rules 
made for us by the Supreme Court of the United 
States which, in the case of this state, have resulted 
in the discard of a large portion of our local law 
dealing with the emotional subject of racial rela­
tions. We are, of course, bound to follow the Fed­
eral decisions, but we think we are equally bound, 
when they erode our local law, not to extend them 
to a point beyond which they have not as yet gone.

We think the Authority and, through it, the 
State of Delaware does not operate, either directly 
or indirectly, the business of Eagle; has not located 
the business of Eagle within the facility for the 
convenience and service of the public using he 
parking service; and has not financially enabled 
the business of Eagle to operate. The only concern 
the Authority has with Eagle is the receipt of rent, 
without which it would be unable to afford the pub­
lic the service of off-street parking. This circum­
stance, we think, is not sufficient to make the dis­
criminatory act of Eagle the act of the State of 
Delaware.

It follows, therefore, that Eagle, in the con­
duct of its business, is acting in a purely private 
capacity. It acts as a restaurant keeper and, as 
such, is not required to serve any and all persons 
entering its place of business, any more than the 
operator of a bookstore, barber shop, or other re-



r r



tail business is required to sell its product to every 
one. This is the common law, and the law of Dela­
ware as restated in 24 Del C Pai\ 1501 with respect 
to restaurant keepers. 10 Am. Jur./C ivil Rights 
PP 21, 22; 52 Am Jur. Theatres PP 9; Williams 
v. Howard Johnson’s Restaurant, 4 Cir. 268 F. 2d. 
845. We, accordingly, hold that the operation of 
its restaurant by Eagle does not fall within the 
scope of the prohibitions of the Fourteenth Amend­
ment.

Finally, plaintiff contends that 24 Del. C.
PP 1501, has no application in the case at bar be­
cause Eagle, since it serves alcoholic beverages to 
its patrons, is a tavern or inn and not a restaurant.
It is argued that, at common law, an inn or tav­
ern could deny services to no one asking for it.
We think, however, that Eagle is primarily a res­
taurant and thus subject to the provisions of 24 
Del. C. PP 1501, which does not compel the oper­
ator of a restaurant to give service to all persons 
seeking such.”

In the case of Slack v. Atlantic White Tower Sys­
tem, Inc., (U.S. Dist. Court, Maryland, 1960J, 181 F. 
Supp. 124, a Negress, who because of race had been re­
fused food service by a Baltimore, Maryland, restaurant 
(one of an interstate chain owned by a Delaware Cor­
poration) brought a class action in federal court for de­
claratory judgment and injunctive relief against the cor­
porate owner claiming that her rights under the constitu­
tion and laws of the United States had been thereby 
denied.



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68

The court held that segregated restaurants in 
Maryland were not required by any state statute or deci­
sional law, but were the result of individual proprietors 
business choice.

The court also rejected plaintiff’s argument that 
defendant as a licensee of the state to operate a public 
restaurant, had no right to exclude plaintiff from service 
on a racial basis; rather, the restaurant’s common law 
right to select its clientele (even on a color basis), was 
still the law of Maryland.

Plaintiff’s further contention that the state’s ad­
mission of this foreign corporation and issuance of a 
restaurant license to it ‘invests the corporation with a pub­
lic interest’ sufficient to make its racially exclusive action 
the equivalent of state action was likewise rejected, the 
court holding that a foreign corporation had the same 
rights as domestic business corporations, and that the 
applicable state license laws were not regulatory. And 
statements in white primary cases, that when individuals 
or groups “move beyond matters of merely private con­
cern’ and ‘act in matters of high public interest” they be­
come “representatives of the State” subject to Fourteenth 
Amendment- restraints, were held inapposite to this type 
situation where defendant had not exercised any powers 
similar to those of a state or city.

The Court said:

“Plaintiff seeks to avoid the authority of 
Williams v. Howard Johnson’s Restaurant. 4 Cir.,
268 F. 2d. 845, by raising a number of points not

1  ^



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69

discussed therein, and by arguing that in Maryland 
segregation of the races in restaurants is required 
by the State’s decisional law and policy, whereas, 
she argues, that was not true in Virginia, where 
the Williams case arose. She also contends that the 
Williams case was improperly decided and should 
not be followed by this Court.

* * * * * * * *
Such segregation of the races as persists in 

restaurants in Baltimore is not required by any 
statute cr decisional law of Maryland, nor by any 
general custom or practice of segregation in Balti­
more City, but is the result of the business choice 
of the individual proprietors, catering to the de­
sires or prejudices of their customers.

Plaintiff’s next argument is that defend­
ant, as a licensee of the State of Maryland operat­
ing a public restaurant or eating facility, had no 
right to exclude plaintiff from its services on a 
racial basis. She rests her argument on the com­
mon law, and on the Maryland license law.

In the absence of statute, the rule is well 
established that an operator of a restaurant has the 
right to select the clientele he will serve, and to 
make such selection based on color, if he so desires. 
He is not an innkeeper charged with a duty to serve 
everyone who applies. Williams v. Howard John­
son’s Restaurant, 268 F. 2d. a t 847; Alpaugh v. 
Wolverton, 184 Va. 943; State v. Clyburn, 101
S. Ed. 2d. 295; and authorities cited in those cases. 
There is no restaurant case in Maryland, but the



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70

rule is supported by statements of the Court of 
Appeals of Maryland in Grenfekl v. Maryland 
Jockey Club, 190 Md. 96, 102, and in Good Citizens 
Community Protective Association v. Board of 
Liquor License Commissioners, 217 Md. 129, 131.

Art. 56, Secs. 151 et. seq., of the Ann. Code 
of Md., 1939 ed. (163 et seq of the 1957 ed), deals 
with licenses required of persons engaged in all 
sorts of businesses. Secs. 166 (now 178) provides: 
‘Each person, firm or corporation, resident or non­
resident, operating or conducting a restaurant or 
eating place, shall, before doing so take out a license 
therefor, and pay an annual license fee of Ten Dol­
lars ($10.00) for each place of business so oper­
ated except that in incorporated towns and cities 
of 8,000 inhabitants or over, the fee for each place 
of business so operated shall be Twenty-Five Dol­
lars ($25.00)’. The Attorney General of Maryland 
has said that ‘A restaurant is generally understood 
to be a place where food is served at a fixed price 
to all comers, usually at all times.’ This statement 
was made in an opinion distinguishing a restaurant 
from a boarding house for licensing purposes. 5 
Op. Atty. Gen. 303. It was not intended to express 
opinion contrary to the common law right of a 
restaurant owner to choose his customers. The 
Maryland Legislature and the Baltimore City 
Council have repeatedly refused to adopt bills re­
quiring restaurant owners and others to serve all 
comers regardless of race; several such bills are 
now pending. See Annual Report of Commission, 
January 1960, p. 29.



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Plaintiff contends that defendant is engaged 
in interstate commerce, that its restaurant is an in­
strumentality or facility of interstate commerce 
and thus subject to the constitutional limitations 
imposed by the Commerce Clause (Const. Art. 1 
sec 8); and that defendant’s refusal to serve plain­
tiff, a traveler in interstate commerce, constituted 
an undue burden on that commerce.

A similar contention was rejected in Wil­
liams v. Howard Johnson’s Restaurant, 2G8 F. 2d. 
at 848. It would be presumptuous for me to en­
large on Judge Soper’s opinion on this point.

‘The action inhibited by the first section of 
the Fourteenth Amendment is only such action as 
may fairly be said to be that of the states. That 
Amendment erects no shield against merely private 
conduct, however discriminatory or wrongful’. 
Shelley v. Kraemer, 334 U.S. 1, 13. Plaintiff seeks 
to avoid this limitation by arguing that the admis­
sion by the state of a foreign corporation and the 
issuance to it of a license to operate a restaurant 
‘invests the corporation with a public interest’ suf­
ficient to make its action in excluding patrons on 
a racial basis the equivalent of state action.

The fact that defendant is a Delaware cor­
poration is immaterial. Once admitted to do busi­
ness in the State of Maryland, it has the same 
rights and duties as domestic corporations engaged 
in the same business. This factor does not distin­
guish the case from Williams v. Howard Johnson’s 
Restaurant, where the state action question was 
discussed at p. 847.



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The license laws of the State of Maryland 
applicable to restaurants are not regulatory. See 
Maryland Theatrical Corp. v. Brennan, 180 Md. 
377, 381, 382. The City ordinance, .No. 1145, No­
vember 27, 1597, adding Sec. 60-ri to Art. 12 of 
the Baltimore City Code, 1950 ed. which was not 
offered in evidence or relied on by plaintiff, is 
obviously designed to protect the health of the com­
munity. Neither the statute nor the ordinance au­
thorizes State or City officials to control the man­
agement of the business of restaurant or to dictate 
what persons shall be served.

Even in the case of licensees, such as race 
tracks and taverns, where the business is regulated 
by the state, the licensee does not become a state 
agency, subject to the provisions of the Fourteenth 
Amendment, Madden v. Queen’s County Jockey 
Club, 296 N. Y. 243, 72 N. E. 2d. 697, cert. den. 
332 U. S. 761, cited with approval in Greenfeld v. 
Maryland Jockey Club, 190 Md. at 102; Good Citi­
zens Community Protective Association v. Board 
of Liquor License Commissioners 217 Md. 129. No 
doubt defendant might have had plaintiff arrested 
if she had made a disturbance or remained at a 
table too long after she had been told that she 
would only be sold food to cany out to her car. But 
that implied threat is present whenever the pro­
prietor of a business refuses to deal with a cus­
tomer for any reason, racial or other, and does 
not make his action state action or make his busi­
ness a state agency. Plaintiff cites Valle v. Stengel, 
3 Cir. 176 F. 2d. 697. In that case a sheriff’s



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73

eviction of a negro from a private amusement 
park was a denial of equal protection of the laws 
because under the New Jersey antidiscrimination 
lawT the Negro had a legal right to use the park 
facilities.

Plaintiff cites such cases as Nixon v. Con­
don, 286 U. S. 73, and Smith v. Allwright 321 U.S. 
649, for the proposition that when individuals or 
groups ‘move beyond matters of merely private con­
cern' and ‘act in matters of high public interest’ 
they become ‘representatives of the State’ subject 
to the restraints of the Fourteenth Amendment. 
The distinction between holding a primary election 
and operating a restaurant is obvious, and has al­
ways been recognized by the courts. Defendant has 
not exercised powers similar to those of a state 
or city.

In Kerr v. Enoch Pratt Free Library of 
Baltimore City, 4 Cir. 149 F. 2d. 212, also relied on 
by plaintiff, ‘the Library was completely owned and 
largely supported * * * by the City; * * * in practi­
cal effect its operations were subject to the City’s 
control’, as the Fourth Circuit pointed out in dis­
tinguishing the Library case from Eaton v. Board 
of Managers of the James Walker Memorial Hos­
pital, 4 Cir. 261 F. 2d. 521, 527.

The argument that state inaction in the face 
of uniform discriminatory customs and practices 
in operating restaurants amounts to state action 
was rejected in Williams v. Howard Johnson’s Res­
taurant, 4 Cir. 268, F. 2d. 845. Moreover, as we



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have seen, the factual premise for the argument 
is not found in the instant case.”

In the case of Fletcher versus Coney Island, Inc., 
lOhio 1956), 134 N. E. 2d. 371, a Negro woman sought to 
enjoin the operator of a private amusement park from 
refusing her admittance because of her race or color.

In holding that defendant’s remedy was to proceed 
under the State’s anti-discrimination law, and not by 
way of injunction, the Supreme Court of Ohio said:

“In the case of Madden v. Queens County 
Jockey .Club, Inc., 296 N. Y. 249, 253, 72 N. E.
2d. 697, 698, 1 A. L. R. 2d. 1160, 1162, the generally 
recognized rule is stated as follows:

‘At common law a person engaged in . a public 
calling, such as an inkeeper or common car­
rier, was held to be under a duty to the general 
public and was obliged to serve, without dis­
crimination, all who sought service. * * * On the 
other hand, proprietors of private enterprises 
such as places of amusement and resort, were 
under no such obligation, enjoying an absolute 
power to serve whom they pleased. * * *

“The common-law power of exclusion, noted 
above, continues until changed bg legislative enact­
ment.” (Emphasis supplied.)

“See also Bailey v. Washington Theatre Co.,
218 Ind. 34 N. J. 2d. 17; annotation, 1 A. L. R.
2d. 1165; and 10 American Jurisprudence 915, Sec­
tion 22.”



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75

‘ It will be thus observed that the owner or 
operator of a private amusement park or place of 
entertainment may arbitrarily and capriciously re­
fuse admittance to whomsoever he pleases, be they 
Africans, Chinese, East Indians, Germans, Italians, 
Poles, Russians or any other racial group, in the 
absence of legislation requiring him to admit them.” 

* * * * # §
“In summary, the decision in this case rests 

squarely on the proposition that at common law 
those who own and operate private places of amuse­
ment and entertainment can admit or exclude 
whomsoever they please, and that, since such es­
tablishments are open to all only through legisla­
tive enactments, those enactments govern the sit­
uation, and where as a part of those enactments 
a specific remedy or penalty is prescribed for their 
violation, such remedy or penalty is exclusive. The 
adequacy or appropriateness thereof being a mat­
ter of legislative concern. This decision is limited 
to this precise point and should be so read and ap­
praised.

It should be obvious that the present case 
bears no relation whatsoever to the problem of the 
segregation of pupils in the public schools, or to the 
exclusion of a qualified person from an institution 
of higher learning supported by public funds or a 
person from a publicly owned or operated park or 
recreation facility, because of his race or color.”

In the case of Tamelleo, et al. v. New Hampshire 
Jockey Club, Inc., (N. H. 1960), 163 A. 2d. 10, the plain-





76

tiffs presented themselves at the defendant’s race track 
but were refused admission by the action of one of defend­
ant's agents who ordered them to leave the premises be­
cause in his judgment their presence was inconsistent 
with the orderly and proper conduct of a race meeting. 
The plaintiffs then left the premises and thereafter in­
stituted these proceedings.

The court said :

“It is firmly established that at common law 
proprietors of private enterprises such as theatres, 
race tracks, and the like may admit or exclude any­
one they choose. Woolcott v. Shubert, 217 N. Y. 
212;222, 111 N. E. 829, L. R. A. 1916 E. 248; Mad­
den v. Queens County Jockey Club, 296 N. Y. 249, .
72 N. E. 697, certiorari denied 332 U. S. 761, 68
S. Ct. 63, 922 Ed. 346; 1 A. L. R. 2d 1165 annota­
tion; 86 C. J. S. Theatres and shows, sec. 31. While 
it is true, as the plaintiffs argue and the defend­
ants concede, that there is no common-law right 
in this state to operate a race track where pari­
mutuel pools are sold, horse racing for a stake or 
price is not gaming or illegal. Opinion of the Jus­
tices, 73 N. H. 625, 631, 63 A. 505.

“However, the fact that there is no common- 
law right to operate a pari-mutuel race track is 
not decisive of the issue before us. The business 
is still a private enterprise sinee it is affected by 
no such public interest so as to make it a public 
calling as is a railroad for example. Garifine v. 
Monmouth Park Jockey Club, 29 N. J. 47, 148 A.
2d. 1; Madden v. Queens County Jockey Club, su-





%

pra. Regulation by the state does not alter the 
nature of the defendant’s enterprise, nor does 
granting a license to conduct pari-mutuel pools. 
Noith Hampton Racing and Breeders Association 
v. New Hampshire Racing Commission, 94 N. H. 
156, 159, 48 A. 2d. 4v2; Greenfeld v. Maryland 
Jockey Club, 190 Md. 96, 57 A. 2d. 335. As the 
North Hampton case points out, regulation is nec­
essary because of the social problem involved. Id., 
94 N. H. 159, 48 A. 2d. 475.

“We have no doubt that this state adheres to 
the general rule that the proprietors of. a private 
calling possess the common-law right to admit or 
exclude whomever they choose. In State v. United 
States & C. Express, 60 N. H. 219, after holding 
that a public carrier cannot discriminate, Doe, C. J., 
stated, ‘Others, in other occupations, may sell their 
services to some, and refuse to sell to others.” Id. 
60 N H 261.” (Emphasis supplied.)

“In Batchelder v. Hibbard, 58 N. H. 269, the 
Court states that a license, sofar as future enjoy­
ment is concerned, may be revoked any time. A. 
ticket to a race ti’ack is a license and it may be 
revoked for any reason in the absence of a statute 
to the contrary. Marrone v. Washington Jockey 
Club, 227 U. S. 633, 33 S. Ct. 401, 61 L. Ed. 679.” 

* * * * * *
“The plaintiffs also contend that if this be 

our law, we should change it in view of altered 
social concepts. This argument ignores altogether 
certain rights of owners and taxpayers, which still

77



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78

exist in this state, as to their own property. Fur­
thermore, to adopt the plaintiff’s position would re­
quire us to make a drastic change in our public 
policy which, as we have often stated, is not a prop­
er function of this court.

“The plaintiffs take the position that R. S. A. 
284: 39, 40 as inserted by Laws 1959, c. 210, sec. 
14, is invalid as an unconstitution delegation of 
legislative power. We cannot agree. Laws 1959, c. 
210 is entitled: ‘An act relative to Trespassing on 
Land of Another and at Race Tracks and Defining 
Cultivated Lands”. Section 4 (R. S. A. 284:39, un­
der the heading ‘Trespassing’ reads as follows: 
‘Rights of Licensee. Any licensee hereunder shall 
have the right to refuse admission to and to eject 
from the enclosure of any race track where is held 
a race or race meet licensed hereunder any person 
or persons whose presence within said enclosure is 
in the sole judgment of said licensee inconsistent 
with the orderly and proper conduct of a race 
meeting.’ As applied to this case this provision 
is substantially declaratory of the common law 
which permits owners of private enterprises to re­
fuse admission or to eject anyone whom they de­
sire. Garifine v. Monmouth Park Jockey Club, 29 
N. J. 47, 148 A. 2d. 1.

“The penalty provision, section 4 (R. S. A. 
284:40) states: ‘Penalty. Any person or persons 
within said enclosure without right or to whom ad­
mission has been refused or who has previously been 
ejected shall be fined not more than one hundred 
dollars or imprisoned not more than one year or



r



both. This provision stands no differently than 
does that imposing a penalty upon one who enters 
without right the cultivated or posted land of an­
other. It. S. A. 572:15 (supp) as amended. One 
charged with either of these offenses or with tres­
pass at a race track would of course have a right 
to trial and the charge against him would have to 
be proved, as in any other criminal matter. No 
license to pass any law is given to the defendant. 
The situation is clearly unlike that condemned in 
Ferretti v. Jackson, 88 N. H. 296, 188 A.' 474, and 
Opinion of the Justices, 88 N. H. 497, 190 A. 713, 
upon which the plaintiffs rely, where the milk 
board was given unrestricted and unguided discre­
tion, in effect, to make all manners of laws within 
the field of its activity. It thus appears that there 
is no unlawful delegation of legislative powers in 
the present case.”

In the case of Hall v. Commonwealth, (Va. 1948) 
49 S. E. 2d. 369, Appeal Dismissed, See 69 S. Ct. 2401, 
a Jehovah’s Witness, was convicted for trespassing on pri­
vate property. He sought appellate relief on the ground 
that the conviction violated his right to freedom of speech, 
freedom of the press, freedom of assembly, and freedom 
of worship guaranteed to him by the Constitutions of the 
United States and the State of Virginia.

The court said:

“The statute under which the accused was 
prosecuted is Chapter 165, Acts of 1934, sec. 4480a, 
Michie’s 1942 Code, which provides: ‘That if any

79



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person shall without authority of law go upon or 
remain upon the lands or premises of another, after 
having been forbidden to do so by the owner, lessee, 
custodian or other person lawfully in charge or pos­
session of such land he shall be deemed guilty of a
misdemeanor, etc. * > * * * *

* * * * * *
“Mr. Justice Black in Martin v.. City of 

Struthers, 319 U. S. 141, at page 147, 63 S. Ct. 
862, a t page 865, 87 L. Ed. 1313, speaking of this 
particular statute and other statutes of similar 
character, said: ‘Traditionally the American Law 
punishes persons who enter onto' the property of 
another after having been warned by the owner to 
keep off. General trespass after warning statutes 
exist in at. least twenty states, while similar stat­
utes of narrower scope are on the books of at least 
twelve states more.’

“We find nothing in the statute when prop­
erly applied which infringes upon any privilege 
or right guaranteed to the accused by the Federal 
Constitution.”

* * * * * *
“The most recent expressions of the Supreme 

Court of the United States on this subject are found 
in Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 
90 L. Ed. 265, and Tucker v. Texas, 326 U. S. 
517, 66 S. Ct. 274, 90 L. Ed. 274, both of which
were decided by a divided court, 

* * * * * *
“In concluding the discussion the New York 

court said: ‘Our purpose in thus briefly analyzing

80



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81

those decisions (Marsh v. Alabama and Tucker v. 
Texas) is to show that they do not (nor do any 
others of which we know) go nearly so far as ap­
pellants would have us go here. Parkchester, like 
Chickasaw, Alabama, and the Federal housing com­
munity in Texas, is privately owned, but there the 
similarity as to facts ends. It is undisputed that 
this defendant has never sought in any way to limit 
the Witnesses’ activities on the streets or sidewalks 
of Parkchester some of which are privately and 
some publicly owned. The discrimination which 
this defendant’s regulation inhibits was not on the 
streets, sidewalks or other public or quasi-public 
places, but inside of and into, the several floors 
and inner hallways of multiple dwellings.’ 

* * * * * *
“We think the Bohnke case, supra, is still 

the law and leaves solid the regulation of dcor-to- 
door calls along public streets. But regardless of 
the Bohnke ruling, no case we know of extends the 
reach of the bill of rights so far as to prescribe 
the reasonable regulation by an owner, of conduct 
inside his multiple dwelling. So holding, we need 
not examine the larger question of whether the per­
tinent clauses of the Constitutions have anything 
to do with rules made by any dwelling proprietors, 
governing conduct inside their edifices.”

In the case of State versus Hunter, 114 So. 76, 
164 La. 405, 55 A. L. R. 309, Aff. Hunter v. State of La., 
48 S. Ct, 158, 205 U. S. 508, 72 L. Ed. 393, the Supreme 
Court of Louisiana said:



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%

“The defendant was convicted of the offense 
of going on the premises of a citizen of the state, in 
the nighttime, 'without his consent, and moving or 
assisting in moving therefrom a tenant and his 
property or effects. * * * The offense was a vio­
lation of the Act No. 38 of 1926, p. 52; which makes 
it unlawful to go on the premises or plantation of 
a citizen of this state, in the nighttime or between 
sunset and sunrise, without his consent, and to move 
or assist in moving therefrom any laborer or ten­
ant. The act declares that it does not apply to what 
is done in the discharge of a civil or military 
order.”

* * * * * *

“The defendant pleaded that the statute was 
violative of the guaranty in the second section of 
Article 4 of the Constitution of the United States 
that the citizens of each state shall be entitled to all 
privileges and immunities of citizens in the several 
states, and was violative also of the provision in 
the Fourteenth Amendment that no state shall make 
or enforce any law which shall abridge the privi­
leges or immunities of citizens of the United States; 
and violative of the due process clause and the equal
protection clause of the Fourteenth Amendment.” 

* * * * * *

“On the occasion referred to in the bill of 
information he, (defendant! went upon the plan­
tation of one T. D. Connell, a citizen of Louisiana, 
in the nighttime and without Connell’s consent and 
moved from the plantation to the state of Arkansas 
a tenant of Connell and the tenant’s property or

8 2



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effects. The defendant was employed by Connell’s 
tenant to do the hauling, and was not discharging 
any civil or military order. Some of the planta­
tions in that vicinity were owned by citizens of Lou­
isiana and some by persons not citizens of Louisi­
ana. For several months previous to the occasion 
complained of the defendant was engaged in haul­
ing persons and their property and effects, in the 
ordinary course of his business, and regardless of 
whether any of the persons moved were laborers 
or tenants on premises owned by a citizen of Lou­
isiana or by a citizen of another state.

“The statute is not an unreasonable exercise 
of the police power of the state. It merely forbids 
a person having no right to be on the premises of 
another to go there in the nighttime and without
the proprietor’s consent -----  and therefore as a
trespasser ----- - and to move or assist in moving
from the premises a laborer or tenant or his prop­
erty or effects. The purpose of the statute, mani­
festly, is to preserve the right of every landlord or 
employer of farm labor to be informed of the re­
moval from his premises of any personal property 
or effects. Without a statute on the subject it 
wrould be unconventional in the rural districts, to 
say the least, for an outsider to take the liberty of 
going upon the premises of another in the nighttime 
to cart away personal property or effects, without 
the landowner’s consent. The statute does not dis­
criminate with regard to those who may or may not 
commit the act. It forbids all alike. The discrimi­
nation is in wThat is forbidden. It is not forbidden

83



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84

------ by this particular statute ------ to trespass
upon the land of one who is not a citizen of the 
state, by going upon his premises in the nighttime 
without his consent. Perhaps the Legislature used 
the word “citizen” not in its technical or political 
sense but as meaning a resident of the state, and 
perhaps the Legislature thought the law would be 
too harsh if it forbade those engaged in the trans­
fer business to go upon premises belonging to a 
non-resident------even in the nighttime-------with­
out first obtaining his consent. The discrimina­
tion, therefore, is not arbitrary or beyond all pos­
sible reason. The defendant has no cause to com­
plain that the Legislature did not go further, in 
enacting the law, and forbid a similar act of tres­
pass upon the premises of a citizen of another 
state. If he had the right to complain of such 
discrimination, we would hold that the statute does 
not deprive the citizens of other states, owning land 
in this state, of any privilege or immunity guar­
anteed to the landowmers who are citizens of this 
state. The privileges and immunities referred to 
in the second section of Article 4 of the Constitu­
tion of the United States are only those funda­
mental rights which all individuals er.joy alike, ex­
cept insofar as they are all restrained alike. White 
v. Walker, 136 La. 464, 67 So. 332; Central Loan 
& Trust Co. v. Campbell Commission Co., 173 U. S. 
84, 19 S. Ct. 346, 43 L. Ed. 623. If the trespass 
committed by the defendant in this case had been 
committed on land belonging to a citizen of an­
other state, there would have been no violation of



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85

the Act No. 38 of 1926; and in that event the citi­
zen of the other state would have had .no means of 
compelling the Legislature of this state to make the 
law applicable to his case, or right to demand that 
the courts should declare the law null because not 
applicable to his case. All of which merely dem­
onstrates that the statute in question is not viola­
tive of the second section of Article 4 of the Con­
stitution of the United States or of the due process 
clause or equal protection clause of the 14th. 
Amendment.”

“These guarantees of freedom of religious 
worship, and freedom of speech and of the press, 
do not sanction trespass in the name of freedom.
We must remember that personal liberty ends when 
the rights of others begin. The constitutional in­
hibition against the making of a law respecting an 
establishment of religion, or prohibiting the free 
exercise thereof, or abridging the freedom of speech 
or of the press does not conflict with the law which 
forbids a person to trespass upon the property of 
another.”

State v. Martin, et. als. 5 So. 2d. 377, 199
La. 39.

In support of their plea of unconstitutionality, de­
fendants cite the cases of Shelley v. Kraemer, 334 U. S. 1, 
20, 68 S. Ct. 836, 92 L. Ed. 1161, Marsh v. Alabama, 
326 U. S. 501, Valle v. Stengel, 176 F. 2d. 697 (3rd. Cir. 
1949), and other citations contained in their brief.

The State’s freedom of action in protecting the 
peaceful possession of private property outweighs a tres-





86

passer’s right not to have the state enforce private dis­
criminations. Only when this means of protecting prop­
erty interests impairs a preferred fundamental right such 
as freedom of speech, press or religion in a context of 
great public interest have the courts been inclined to ques­
tion the constitutionality of a statute. The present state 
of the law not only recognizes a man’s home to be his 
castle, but allows the state to police his gate and coercively 
enforce his racial discriminations.

Assuming that arresting the defendants constituted 
state action (which is denied), the privileges and immu­
nities clause of the 14th. Amendment was not violated 
because unlike the right to own property f Shelley v. Krae- 
mer) which is defined by statute, there is no specific 
right or privilege to enter the premises of another and 
remain there after being asked to depart. In fact the 
civil and criminal laws of trespass and real property, 
put the privilege of peaceful possession in the owner. An 
extension of the doctrine of Shelley v. Kraemer one step 
further would mean a holding that the enforcement of 
a criminal statute, in itself non-discriminatory, could be­
come discriminatory when the complainant prosecutes for 
discriminatory reasons and thus finding state action that 
discriminates because of race, creed or color.

For the reasons assigned in the authorities sup­
porting the constitutionality of statutes similar to L. S. A.- 
R. S. 14:59(6), the Court holds defendants citations to be 
inapplicable to the factual and legal situation present in 
the case at bar.

D efendants’ contentions are w ithout m erit.



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87

The Court holds L. S. A.-R. S. 14:59(6) constitu­
tional, and the bill of information filed thereunder good 
and sufficient in law.

The motion to quash is overruled and denied.

New Orleans, Louisiana, 28th day of Novem­
ber, 1960.

/Sgd/ J. Bernard Cocke, Judge. 
J U D G E

FILED: Nov. 28/60— (Sgd) E. A. Mouras, Min. Clk.



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86

passer’s right not to have the state enforce private dis­
criminations. Only when this means of protecting prop­
erty interests impairs a preferred fundamental right such 
as freedom of speech, press or religion in a context of 
great public interest have the courts been inclined to ques­
tion the constitutionality of a statute. The present state 
of the law not only recognizes a man’s home to be his 
castle, but allows the state to police his gate and coercively 
enforce his racial discriminations.

Assuming that arresting the defendants constituted 
state action (which is denied), the privileges and immu­
nities clause of the 14th. Amendment was not violated 
because unlike the right to own property (Shelley v. Krae- 
mer) which is defined by statute, there is no specific 
right or privilege to enter the premises of another and 
remain there after being asked to depart. In fact the 
civil and criminal laws of trespass and real property, 
put the privilege of peaceful possession in the owner. An 
extension of the doctrine of Shelley v. Kraemer one step 
further would mean a holding that the enforcement of 
a criminal statute, in itself non-discriminatory, could be­
come discriminatory when the complainant prosecutes for 
discriminatory reasons and thus finding state action that 
discriminates because of race, creed or color.

For the reasons assigned in the authorities sup­
porting the constitutionality of statutes similar to L. S. A.- 
R. S. 14:59(6), the Court holds defendants citations to be 
inapplicable to the factual and legal situation present in 
the case at bar.

D efendants’ contentions are w ithout m erit.



rf



%

87

ihe Court holds L. S. A.-R. S. 14:59(6) constitu­
tional, and the bill of information filed thereunder good 
and sufficient in law.

The motion to quash is overruled and denied.

New Orleans, Louisiana, 28th day of Novem­
ber, 1960.

/Sgd/ J. Bernard Cocke, Judge. 
J U D G E

FILED: Nov. 28/60— (Sgd> E. A. Mouras, Min. Cik.



f r



M

88

STATE OF LOUISIANA NO. 168-520— 
SECTION “E” 

CRIMINAL
VERSUS

SYDNEY L. GOLDFINCH, -JR., DISTRICT COURT

PER CURIAM TO BILL OF EXCEPTION NO. 1

This bill was reserved to the denial of the motion 
to quash the bill of information.

The motion addresses itself to the constitutionality 
of L. S. A.-R. S. 14:59(6), the Criminal Mischief statute 
under which defendants are charged, as well as certain 
supposed infirmities present in the bill of information.

In passing upon defendants’ contentions, the Court ■ 
filed written reasons upholding the constitutionality of 
L. S. A.-R. S. 14:59(6), and refusing to quash the bill 
of information.

The Court makes part of this per curiam the writ­
ten reasons for judgment.

There is no merit to the bill.

New Orleans, Louisiana, 10th day of January, 1961.

FILED: Jan. 10/61— (Sgd) E. A. .Mouras, Min. Clk.

ET. ALS. PARISH OF ORLEANS

(Sgd) J. Bernard Cocke, Judge.

J U D G E

t



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89

STATE OF LOUISIANA NO. 168-520—
VERSUS SECTION “E” 

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT

ET. ALS. PARISH OF ORLEANS

PER CURIAM TO BILL OF EXCEPTION NO. 2
As will be seen from a reading of the statute 

under which defendants were prosecuted (L. S. A.-R. S. 
14:59(6)), the inquiry sought to be established by defend­
ants was irrelevant and immaterial to any of the issues 
presented by the bill of information and the charge con­
tained therein.

L. S. A.-R. S. 15:435 provides:

“The evidence must be relevant to the ma­
terial issues.”

L. S. A.-R. S. 15:441 reads in part as follows:

“Relevant evidence is that tending to show 
the commission of the offense and the intent, or 
tending to negative the commission of the offense 
and the intent.”

L. S. A.-R. S. 15:442 states, in part:

“The relevancy of evidence must be deter­
mined by the purpose for which it is offered.”

“A trial judge must be accorded a wide dis­
cretion whether particular evidence sought to be 
introduced in criminal prosecution is relevant to 
case. L. S. A.-R. S. 15:441.”

State v. Murphy, 234 La. 909, 102 So. 2d.) 61.



r



90

“Exclusion of testimony on grounds of ir­
relevancy rests largely on discretion of trial judge.”

State v. Martinez, 220 La. 899, 57 So. 2d. 888.

“In order to be admissible, evidence must be 
both (1) relevant or material, and (2) competent,

Evidence is competent when it comes from 
such a source and in such form that it is held 
proper to admit it.

Evidence is relevant when it is persuasive or 
indicative that a fact in controversy did or did not 
exist because the conclusion in question may be 
logically inferred from the evidence. The criterion 
of relevancy is whether or not the evidence adduced 
tends to cast any light upon the subject of the in­
quiry.” etc.

Wharton’s Crim. Ev. (12th. Ed.) Vol. 1, p. 283, 
Sec. 148.

The bill is without merit.

New Orleans, Louisiana, 10th day of January, 1961.

(Sgd) J. Bernard Cocke, Judge.

J U D G E ~

FILED: Jan. 10/61— (Sgd) E. A. Mouras, Min. Clk.

I



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91

STATE OF LOUISIANA NO. 168-520 
VERSUS SECTION “E”

CRIMINAL
SYDNET L. GOLDFINCH, JR., DISTRICT COURT

ET. ALS. PARISH OF ORLEANS

PER CURIAM TO BILL OF EXCEPTION NO. 3

The bill was reserved to the denial of defendants’ 
motion to a new trial.

Insofar as the written reasons for denying the 
motion to quash are applicable to defendants’ motion for 
a new trial the Court submits same as its reasons for deny­
ing the said motion.

A reading of the statute under which defendants 
were prosecuted (L. S. A.-R. S. 14:59(6)), is sufficient 
refutation to the other allegations of the motion for a new 
trial, as the matters contended for were irrelevant and 
immaterial to any of the issues present in the proceedings.

As no request was made of the Court to charge 
itself on the legal questions raised by defendants in the 
motion for a new trial, defendants cannot be heard to com­
plain.

The Court was convinced beyond all reasonable 
doubt, that each and every element necessary for convic­
tion was abundantly proved.

The appellate court is without jurisdiction to pass 
upon the sufficiency of proof.





New Orleans, Louisiana, 10th day of January, 1961.

(Sgd) J. Bernard Cocke, Judge. 

J U D G E

FILED: Jan. 10/61— (Sgd) E. A. Mouras, Min. Clk,





93

STATE OF LOUISIANA . NO. 168-520—
VERSUS SECTION “E ”

CRIMINAL
SYDNEY L. GOLDFINCH, JR., DISTRICT COURT

ET. ALS. PARISH OF ORLEANS

PER CURIAM TO BILL OF EXCEPTION NO. 4

This bill was reserved to the denial of defendants’ 
motion in arrest of judgment.

Insofar as the written reasons for denying the mo­
tion to quash are applicable to defendants’ motion in arrest, 
the court submits same as its reasons for denying the 
modon in arrest of judgment.

The remaining contentions of defendants have no 
place in a motion in arrest of judgment, and were mat­
ters of defense.

There is no merit to defendants’ bill.

New Orleans, Louisiana, 10th day of January, 1961.

(Sgd) J. Bernard Cocke, Judge.

J  U D  G E  ~ ~

FILED: Jan. 10/61— (Sgd) E. A. Mouras, Min. Clk.



r r

.4.



A

IN THE

OCTOBER TERM—1961

No.

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF THE UNITED STATES.

JOHN P. NELSON, JR.,
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

2211 Dryades Street,
New Orleans, Louisiana, 

Attorneys for Petitioners.

M ontgom ery  & Co.. "T h e  B rie f  S p e c i a l i s t . 430 C h a r tre s  S t.. N . O.. L a. *«€25*»



r r



INDEX.

OPINIONS BELOW 1

JURISDICTION 2

QUESTIONS PRESENTED 2

STATUTORY AND CONSTITUTIONAL PRO­
VISIONS INVOLVED 3

STATEMENT 4

HOW THE FEDERAL QUESTIONS ARE PRE­
SENTED ............................................................. 8

REASONS FOR GRANTING THE W R IT ........ 12

I. The Decision Below Conflicts With Deci­
sions of This Court on Important Issues 
Affecting Federal Constitutional Rights 12

II. The Public Importance of the Issues Pre­
sented ..............................................   22

CONCLUSION ...........................................................  26

TABLE OF CASES.

A. F. L. v. Swing, 312 U. S. 321 (1941) 14
Allgeyer v. Louisiana, 165 U. S. 578 (1897) 16
Brown v. Board of Education, 347 U. S. 483 25
Buchanan v. Warley, 245 U. S. 60 . . 16
Burstyn v. Wilson, 343 U. S. 495 . . . . 19
Cantwell v. Connecticut, 310 U. S. 296 14

Page



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n

TABLE OF CASES— (Continued)

Civil Rights Cases, 109 U. S. 3 ..........................  22
Dorsey v. State Athletic Commission, 168 F. Supp.

149, aff’d 359 U. S. 533 ..................................  25
Feiner v. New York, 340 U. S. 315 (1951) .......... 20
Gayle v. Browder, 352 U. S. 903 ............................ 25
Giboney v. Empire Storage and Ice Co., 336 U. S.

490 (1949) ........................................................  20
Hurd v. Hodge, 334 U. S. 24 (1948) ...................... 16
Marsh v. Alabama, 326 U. S. 501 .......................... 18
New Negro Alliance v. Sanitary Grocery Co., 303

U. S. 552 (1938) ..............................................  20
Orleans Parish School Board v. Bush, 242 F. (2d)

156 (5th Cir. 1957), cert, denied 354 U. S.
921 ....................................................................... 25

Shanks, State Action and the Girard Estate Cast,
105 U. Pa. L. Rev. 213 (1956) ......................  14

Shelley v. Kraemer, 331 U. S. 1 ..........13,14, 16
Schneider v. State, 308 U. S. 147 (1939) .......... 20
Sellers v. Johnson, 163 F. (2d) 877 (8th Cir. 1947)

cert, denied, 332 U. S. 851 (1 9 4 8 ).................. 21
State v. Goldfinch, et ah, 132 So. (2d) 860 . 2
Terminiello v. Chicago, 337 U. S. 1 ...................... 20
Terry v. Adams, 345 U. S. 461, 73 S. Ct. 809, 97

L. Ed. 1152 .......................................................  12
Thornhill v. Alabama, 310 U. S. 8 8 ...................... 19
United States v. McElveen, 180 F. Supp. 10 (E. D.

La., 1960) aff’d sub nom United States v. 
Thomas, 362 U. S. 58 (1960) .........................  13

Page

I



r r



Ill

TABLE OF CASES— (Continued)

Valle v. Stengel, 176 F. (2d) 697 (3d Cir.
Page

Williams v. Howard Johnson’s Restaurant, 268 F.
(2d) 845 (4th Cir. 1959) ................................  14

Statutes:

LSA-R. S. Sections 1 4 -5 9 ........................................  3

LSA-Civil Code, Article 3 and 21 ..........................  14

Other Authorities:

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cor­
nell L. 2. 375 (1958) ........................................ 13

“Freedom to Contracts”—A New Civil Right, 59
Yale L. J. 1167 (1950) ............................ ’ . . 1 7

Pollitt, “Dime Store Demonstrations: Events and 
Legal Problems of the First Sixty Days,” I960 
Duke Law Journal 315 (1960) ..................... 23

New York Times, August 11, 1960, p. 14, col. 5
(late city edition) ..............................................  23

New York Times, Oct. 18, 1960, p. 47, col. 5 (late
city edition)   23



r r



IN THE

SUPREME COURT OF THE UNITED STATES
OCTOBER TERM—1961

No.

RUDOLPH LOMBARD, ET AL.,
Petitioners,

versus

STATE OF LOUISIANA.

PETITION FOR W RIT OF CERTIORARI TO THE 
SUPREME COURT OF THE UNITED STATES.

Petitioners pray that a writ of certiorari issue to 
review the judgment of the Supreme Court of Louisiana 
entered in the above-entitled case on June 29, 1961, 
rehearing denied October. 4, 1961.

CITATIONS TO OPINIONS BELOW.

The trial judge for the Criminal District Court 
of Orleans Parish rendered written reasons for over­
ruling the petitioners’ motion to quash. These reasons, 
totaling 44 pages, are found on pages 32 through 76 of 
the transcript. No written or oral reasons were given





2

by the trial judge when he found the defendants guilty. 
The opinion rendered by the Supreme Court of Louisiana 
is reported in 132 So. (2d) 860, as State v. Goldfinch, et. a l

JURISDICTION.
The judgment of the Supreme Court of Louisiana 

was entered on June 29, 1961. The jurisdiction of this 
Court is invoked under 28 U. S. C., § 1257(3), petitioners 
claiming rights, privileges and immunities under the 
Fourteenth Amendment to the Constitution of the United 
States.

QUESTIONS PRESENTED.
Petitioners, three Negro students and one white 

student, acting in concert, sat down and sought food serv­
ice at a lunch counter which served only white people in 
a public establishment which welcomed their trade with­
out racial discrimination at all counters but that lunch 
counter; for that they were arrested and convicted of 
“criminal mischief.” Under the circumstances of the 
arrest and trial were the petitioners deprived of rights 
protected by the

1. Due process clause of the Fourteenth Amendment 
in that they were convicted on a record barren of 
any evidence of guilt;

2. Due process clause of the Fourteenth Amendment 
in that they were convicted under a penal provi­
sion which was so indefinite and vague as to afford 
no ascertainable standard of criminality;

3. Due process and equal protection clauses of the 
Fourteenth Amendment to the United States Con-



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3

stitution in that they were arrested and convicted 
to enforce Louisiana’s state policy of racial dis­
crimination;

4. Due process clause of the Fourteenth Amendment, 
as that clause incorporates F irst Amendment type 
protection of liberty of speech and expression;

5. Due process clause of the Fourteenth Amendment 
in that the trial judge refused petitioners the right 
to introduce evidence showing that the store owners 
were acting in concert with and/or in behalf of 
municipal and state law enforcement agencies and 
officers;

V  6. Due process clause of the Fourteenth Amendment
in that the trial judge allowed the state to intro­
duce hearsay evidence over defendants’ objection, 
which evidence was used to furnish one of the nec­
essary elements in the alleged crime;

Y 7. Due process clause of the Fourteenth Amendment
in that the trial judge continued to ask state wit­
nesses leading questions dealing with material and 
relevant facts over the objection of defendants.

STATUTORY AND CONSTITUTIONAL 
PROVISIONS INVOLVED.

1. The Fourteenth Amendment to the Constitu­
tion of the United States.

2. The Louisiana statutory provision involved is 
LSA-R. S. 14:59 (6):

“Criminal mischief is the intentional performance 
of any of the following acts: * * *



r



4

“ (6) taking temporary possession of any part or 
parts of a place of business, or remaining in a place 
of business after the person in charge of said busi­
ness or portion of such business has ordered such 
person to leave the premises and to desist from 
the temporary possession of any part or parts of 
such business.

“Whoever commits the crime of criminal mischief 
shall be fined not more than five hundred dollars, 
or imprisoned for not more than one year, or both.”

STATEMENT.

SEPTEMBER 10, 1960—A group of Negroes con­
ducted a “sit-in” demonstration at Woolworth’s Depart­
ment Store in the City of New Orleans. This was a peace­
ful demonstration and was the first of its kind to take 
place in the city.

SEPTEMBER 10, 1960—Later the same day, Su­
perintendent of Police for the City of New Orleans is­
sued a statement (Appellant II) which was highly pub­
licized in the newspapers. It was also carried on TV 
and radio. The statement read as follows:

“The regrettable sit-in activity today at the lunch 
counter of a Canal St. chain store by several young 
white and Negro persons causes me to issue this 
statement to the citizens of New Orleans.

“We urge every adult and juvenile to read this 
statement carefully, completely and calmly.





5

“First, it is important that all citizens of our com­
munity understand that this sit-in demonstration 
was initiated by a very small group.

“We firmly believe that they do not reflect the sen­
timents of the great majority of responsible citi­
zens, both white and Negro, who make up our 
population.

“We believe it is most important that the mature 
responsible citizens of both races in this city under­
stand that and that they continue the exercise of 
sound, individual judgment, goodwill and a sense 
of personal and community responsibility.

“Members of both the white and Negro groups in 
New Orleans for the most part are aware of the 
individual’s obligation for good conduct—an obli­
gation both to himself and to his community. With 
the exercise of continued, responsible law-abiding 
conduct by all persons, we see no reason for any 
change whatever in the normal, good race-relations 
that have traditionally existed in New Orleans.

“At the same time we wish to say to every adult 
and juvenile in this city that the police department 
intends to maintain peace and order.

“No one should have any concern or question over 
either the intent or the ability of this department 
to keep and preserve peace and order.

“As part of its regular operating program, the New 
Orleans police department is prepared to take 
prompt and effective action against any person or 
group who disturbs the peace or creates disorder 
on public or private property.



r



6

“We wish to urge the parents of both white and 
Negro students who participated in today’s sit-in 
demonstration to urge upon these young people that 
such actions are not in the community interest.

“Finally, we want everyone to fully understand 
that the police department and its personnel is 
ready and able to enforce the laws of the City of 
New Orleans and the State of Louisiana.”

SEPTEMBER 13, 1960—De Lesseps Morrison, 
then mayor of the City of New Orleans, issued a highly 
publicized statement (Appellant Ii setting forth the city’s 
policy of handling these peaceful demonstrations. The 
statement reads in part as follows:

“I have today directed the Superintendent of Po­
lice that no additional sit-in demonstrations or so- 
called peaceful picketing outside retail stores by 
sit-in demonstrators or their sympathizers will be 
permitted.”

* * * * * *
“It is my determination that the community inter­
est, the public safety, and the economic welfare of 
this City require that such demonstrations cease 
and that henceforth they be prohibited by the Po­
lice Department.”

^  SEPTEMBER 17, 1960—The defendants, three 
Negroes and one white, acting in concert (Tr. p. 133) in 
an orderly and quiet manner (Tr. pp. 103, 107), at ap­
proximately 10:30 a. m., requested to be served food at 
the “white” refreshment bar in McCrory’s Five and Ten 
Cent Store, 1005 Canal Street, New Orleans, La. Be-



r



7

cause three were Negroes, all were refused service. (Tr. 
p. 117.)

The continued presence at the “white” counter of 
the defendants, after refusing to move to the “colored” 
counter (Tr. p. 100) was considered by Mr. Graves, res­
taurant manager, as an “unusual circumstance” (Tr. p. 
103), or an “emergency” (Tr. p. 100), hence he ordered 
the counter closed down (Tr. p. 100) and called the police 
(Tr. p. 101).

After the police arrived on the scene, and after a 
conference with Captain Lucien Cutrera of the New Or­
leans Police Department (Tr. p. 125), Mr. Wendell Bar­
rett, in a loud voice, told the defendants that the depart­
ment was closed and requested them to leave the de­
partment (Tr. p. 110). When they did not answer or 
comply with the request, Major Edward Ruther, a mem­
ber of the New Orleans Police Department, gave the 
defendants two minutes within which to leave. (Tr. p. 
115.) After waiting approximately six minutes, the 
defendants were placed under arrest (Tr. p. 122), charged 
and convicted under R. S. 14:59 (6).

McCrory’s, at 1005 Canal Street, is part of a na­
tional chain operating in thirty-four states, owned by the 
McCrory Stores, Incorporated. (Tr. p. 22.) It is classified 
as a “variety of merchandise” type store (Tr. p. 109), 
made up of approximately twenty departments (Tr. p. 
119) and open to the general public (Tr. p. 21). Included 
in its services to the public are eating facilities com­
posed of a main restaurant that seats 210, a counter that 
seats 53, a refreshment bar that seats 24 and two stand-up





8

counters. (Tr. p. 99). All of the eating facilities are seg­
regated. There are no signs indicating whether service 
at any particular counter is limited to either Negro or 
white. (Tr. pp. 106, 107.)

Mr. Barrett, the manager at McCrory’s for the 
past two and one-half to three years (Tr. p. 21), had pre­
viously served as manager for the McCrory stores in 
Savannah and Valdesta, Georgia. (Tr. p. 21.) He has 
never been employed in a “desegregated” McCrory store. 
(Tr. p. 24.)

The store’s segregation policy is determined by 
local tradition, law and custom, as interpreted by the 
manager. (Tr. p. 24.) The manager, Mr. Barrett, testi­
fied that his decisions relative to segregated lunch count­
ers within the store conform to state policy, practice and 
custom. (Tr. p. 28.1

1 ■
HOW THE FEDERAL QUESTIONS ARE PRESENTED.

The federal questions sought to be reviewed here 
were raised in the court of first instance (the Criminal 
District Court for the Parish of Orleans, Section “E”) 
on the 17th day of October, 1960, by petitioners’ timely 
motion to quash the information. (Tr. p. 9.) Among 
other allegations, the motion contains the following:

“2. That the said defendants are being de­
prived of their rights under the ‘equal protection 
and due process’ clauses of both the Constitution 
of Louisiana and of the United States of America, 
in that the said law under which the Bill of In­
formation is founded is being enforced against





9

them arbitrarily, capriciously and discriminately, 
in that it is being applied and administered un­
justly and illegally, and only against persons of 
the Negro race and/or white persons who act in 
concert with members of the Negro race.

“7. That the refusal to give service solely 
because of race, the arrest and subsequent charge 
are all unconstitutional acts in violation of the 
Fourteenth Amendment of the United States Con­
stitution, in that the act of the Company’s repre­
sentative was not the free will act of a private 
individual, but rather an act which was encour­
aged, fostered and promoted by state authority in 
support of a custom and policy of enforced segre­
gation of race at lunch counters.

“8. That the arrest, charge and prosecution 
of the defendants are unconstitutional, in that they 
are the result of state and municipal action, the 
practical effect of which is to encourage and foster 
discrimination by private parties.”

The motion was argued, submitted and denied on 
November 28, 1960, to which ruling petitioners objected 
and reserved a formal bill of exception.

Petitioners’ case came on for trial on the seventh 
day of December, 1960. Following the verdict of guilty, 
a motion for a new trial (Tr. p. 76) and a motion in 
arrest of judgment (Tr. p. 80) were filed, which motions 
alleged, inter alia (Tr. p. 77):

“The verdict is contrary to the law in that:



r
r



10

“E. The evidence offered against defend­
ants in support of the information charging them 
with violation of L. S. A.-R. S. 14:59(6) estab­
lishes that at the time of arrest and at all times 
covered by the charges, they were in peaceful ex­
ercise of constitutional rights to assemble with 
others for the purpose of speaking and protesting 
against the practice, custom and usage of racial 
discrimination in McCrory-McLennan Corp., an 
establishment performing an economic function in­
vested with the public interest; that defendants 
were peacefully attempting to obtain service in the 
facilities of McCrory-McLennan Corp., in the man­
ner of white persons similarly situated and at no 
time were defendants defiant or in breach, of the 
peace and were at ail times upon an area essen­
tially public, wherefore defendants have been de­
nied rights secured by the due process and equal 
protection clauses of the 14th Amendment of the 
United States Constitution;

“F. The evidence establishes that prosecu­
tion of defendants was procured for the purpose of 
preventing them from engaging in peaceful assem­
bly with others for the purpose of speaking and 
otherwise peacefully protecting in public places the 
refusal of the preponderant number of stores, fa­
cilities and accommodations open to the public in 
New Orleans to permit defendants and other mem­
bers of the Negro race from enjoying the access to 
facilities and accommodations afforded members of 
other races; and that by this prosecution, prosecut­
ing witnesses and arresting officers are attempt-



r



11

ing to employ the aid of the court to enforce a ra­
cially discriminatory policy contrary to the due 
process and equal protection clause of the 14th 
Amendment to the Constitution of the United 
States.”

The motions for a new trial and to arrest the 
judgment were denied (Tr. p. 4), and petitioners filed 
forthwith a bill of exception, renewing all reservations, 
motions and bills of exception previously taken. (Tr. 
p. 84.)

Thereafter, on January 10, 1961, petitioners ap­
pealed to the Supreme Court of the State of Louisiana, 
and also urged during the course of that appeal that the 
verdict and the sentence deprived the petitioners of the 
equal protection afforded by the 14th Amendment to the 
United States Constitution.

Prior to trial on the merits, certain evidence was 
introduced in support of motion to quash and assertion of 
various constitutional defenses under the Fourteenth 
Amendment to the Constitution of the United States. The 
motion to quash was duly overruled.1

The case was subsequently fixed for trial and all 
petitioners found guilty.1 2 They were each sentenced to 
pay a fine of $3.50.00 and imprisonment in Parish Prison 
for sixty (60) days, and in default of the payment of 
fine to imprisonment in Parish Prison for sixty (60)
1 See pages 32 through 76 of the transcript for the written judgment

of trial judge setting forth the reasons for overruling the motion 
to quash.

2 No written or oral reasons were given by the trial judge when he
found the petitioners guilty.





12

days additional. Motion for new trial was made and 
denied. . The matter was appealed to the Supreme Court 
of Louisiana, where the conviction was affirmed and 
rehearing denied. Application for stay of execution for 
sixty (60) days was granted by the Chief Justice of the 
Louisiana Supreme Court on October 6, 1961.

REASONS FOR GRANTING THE WRIT.

I.
The Decision Below Conflicts With Decisions of
This Court on Important Issues Affecting Federal 

Constitutional Rights.
A. The decision below conflicts with prior deci­

sions of this Court which condemn racially discriminatory
administration of State criminal laws.

■ I '
i \  1. The person in charge of the place of business, 

in ordering defendants to leave, did not thereby perform 
a purely private act;:rather he acted for the state, under 
the terms of the statute, in order to comply with the 
policy of segregation established by the legislative and 
executive officers of the state.

His act is comparable to that of individuals hold­
ing no state office who challenged the voters’ registra­
tion of 1,377 Negroes in Washington Parish, La., under 
provisions of Louisiana statutes. “The individual defend­
ants, in challenging the registration status of voters, 
were acting under color of the laws of Louisiana. Pro­
viding for and supervising the electoral process is a state 
function. Termj v. Adams, 345 U. S. 461, 73 S. Ct. 809, 
97 L. Ed. 1152. The individual defendants participated

\





in this state function under express authority of Louisi­
ana law, using state facilities made available to them. 
LSA-R. S. 18:245. Their actions formed the basis of the 
removal of citizens from the registration rolls by the 
defendant Registrar acting in his.official capacity. See 
Shelley v. Kraemer, 334 U. S. 1, 20, 68 S. Ct. 836, 92 L. 
Ed. 1161; United States v. McElveen, 180 F. Supp. 10 
(E. D. La., 1960), a ff’d sub nom United States v. Thomas, 
362 U. S. 58 11960).

By analogy, the person in charge of McCrory’s 
acted under express authority of a Louisiana statute 
when he ordered the defendants to move, and thereby par­
ticipated in the state function of maintaining order in 
places where the public gathers. His action formed the 
basis of their arrest. The only facilities used in the 
McElveen case were the files in the registration office. 
In the instant case, the police power was used with its 
facilities. His act was as much under color of law as 
was the act of the individuals enjoined in the McElveen 
case.

2. His act was not a private one for the addi­
tional reason that it was not a free will act of a private 
individual, but rather an act encouraged, fostered and 
promoted by state authority in support of a custom and
policy of enforced segregation of races at lunch counters.

The state action limited by the Fourteenth Amend­
ment is not only that of public officers or with public 
funds or on public property. It includes private opera­
tions under many circumstances. See Abernathy, Expan­
sion of the State Action Concept Under the Fourteenth





* r - .

14

Amendment, 43 Cornell L. 2. 375 .(1958); Shanks, State 
Action and the Girard Estate Cast, 105 U. Pa. L. Rev. 
213 (1956).

Unlike the situation in Williams v. Howard John­
son's Restaurant, 268 F. (2d) 845 (4th Cir., 1959), the 
state officers did not merely acquiesce in the custom of 
segregation but actually aided and abetted it, thereby 
making the private act take on the character of a public 
one. Shelley v. Kraemer, 334 U. S. 1 (1948); Valle v. 
Stengel, 176 F. (2d) 697 (3d Cir., 1949).

In Louisiana, custom and received usages have the 
force of law. La. R. C. C. Articles 3 and 21 (1870). 
if the custom is discriminatory and was applied by act of 
the person in charge of the store, then it can be called 
discrimination under the law. This is comparable to the 
attempt by another state to charge a defendant with the 
common law offense of inciting a breach of the peace, 
Cantwell v. Connecticut, 310 U. S. 296 (1940), or the 
application of a common law policy of a state forbidding 
resort to peaceful persuasion through picketing. A. F. L. 
v. Swing, 312 U. S. 321 (1941). Both these cases indi­
cated that such customary activity could constitute state 
action.

The store manager acted not privately, but under 
the influence of the public policy expressed in the statute, 
the widespread custom of segregation in the community, 
and especially the expressed policy of city officials, in 
ordering the defendants to move, thereby denying them 
their constitutionally guaranteed rights.





3. The Fourteenth Amendment to the United 
States Constitution forbids state action which deprives 
persons of equal protection under the law.

As indicated above, state action is clearly present 
in the instant case, first, by the act of the person in 
charge of McCrory’s in acting under authority of a stat­
ute and in acting as encouraged by state policy; second, 
by the act of the police in arresting defendants; third, by 
the act of the district attorney in charging defendants; 
and fourth, by the act of this Honorable Court in trying 
defendants’ guilt.

However, state action is of course permissible un­
less it is wrongly used. It is not permissible under the 
Fourteenth Amendment if it deprives a person of any 
constitutionally protected right, including the right to 
equal protection under the law, and the right of free 
speech and the right to property.

Hence, if state action, that is, action under the law, 
deprives a person of equal protection, it is a violation of 
the Amendment.

W. The order to move, the arrest, the charge, the 
prosecution, and the trial of defendants constitute state 
action which denied these defendants equal protection as 
there was no reasonable basis for treating them differ­
ently from any other potential customer at the lunch 
counter, the only basis being their race, which is an 
irrelevant basis. True, their race could be sufficient basis 
for private discrimination, but not for state action.

15





m

16

b. Even if this broad inequality'of treatment were 
not a sufficient deprivation of constitutionally protected 
right, other such rights have been harmed by state action. 
One such right is the right of free speech discussed else­
where.

b, Another phase of equal protection guaranteed 
by the Constitution is the right to contract, or at least 
the right to attempt to enter into a contract in the same 
manner open to other persons similarly situated, which 
right is a necessary corollary of the right of property, 
that is, the right to attempt to acquire property as would 
other persons similarly situated, or, by contract. Valle v. 
Stengel,'^.76 F. (2di 697 (3d Cir., 1949). The equal pro­
tection guarantee is the constitutional basis for 42 U. S. C. 
§ 1981 which assures the right to make and enforce con­
tracts and § 1982 which assures the right to purchase and 
otherwise transact concerning real and personal property. 
Id.; Buchanan v. Worley, 245 U. S. 60 (1917); Hurd v. 
Hodge, 334 U. S. 24 (1948). Cf. AUgeyer v. Louisiana, 
165 U. S. 578 (1897).

Judicial enforcement of a discriminatory restric­
tive covenant unconstitutionally deprives a person of the 
equal right to acquire property. Shelley v. Kraemer, 334 
U. S. 1 (1948). In that case, a third party was not per­
mitted to use judicial power to enforce the restriction 
against two contracting parties, the Negro being a will­
ing purchaser from a willing vendor. In Valle v. Stengel, 
the unwilling vendor was not permitted to use police 
power to prevent the willing buyer of a ticket to a pri­
vately owned swimming pool from “making” a contract.





o
17

Note, Freedom to Contracts— A New Civil Right, 59 Yale 
L. J. 1167 (1950).

Defendants wanted to buy lunch. True, the mer­
chant was unwilling to contract and cannot be forced to 
do so. However, all other persons were free to attempt 
to contract with the store, but defendants were no longer 
free to offer to contract because of the interference of the 
police and other state action. . It takes two parties to 
“make” a contract, but the first necessary element of a 
contract is an offer. The Constitution in guaranteeing 
equal protection and property rights does not guarantee 
that an offer will be accepted and a contract confected, 
but it puts all persons on an equal footing in denying the 
right of a state to interfere with the process of contract­
ing, including the right to make an offer. If a white 
person attempts to buy lunch at McCrory’s counter and 
is refused, along with all other potential customers simi­
larly situated, because the closing hour of the store is 
approaching and waitresses must clean up before leaving 
with the other employees, that white potential customer 
can return at another time of day and make another 
offer, trying again to make a contract. But defend­
ants are deprived forever of the opportunity of making 
an offer to try. to make a contract due to State interfer­
ence with their equal right to enter into the contracting- 
procedure preliminary to acquiring property. Property 
rights are constitutionally protected. Defendants’ prop­
erty rights have been harmed.

V t— "
4. The fact that the limitation on defendants’ free- 

' ; dom occurred on privately owned property does not cause 
the deprivation of equal protection to be any less uncon-



<



m o
stitutional—first, because as explained, the fact of order­
ing, arresting, charging, prosecution and trying, all con­
stitute State action; second, because the fact that the 
store has been the kind that advertises widely and admits 
the general public without discrimination causes it to be 
a quasi public placeA “Ownership does not always mean 
absolute dominion. The more an owner, for his advan­
tage, opens up his property for use by the public in gen­
eral, the more do his rights become circumscribed by 
the statutory and constitutional rights of those who use 
it. Cf. Republic Aviation Corp. v. Labor Board, 324 
U. S. 793, 802 n. 8. Thus, the owners of privately held 
bridges, ferries, turnpikes and railroads may not operate 
them as freely as a farmer does his farm. Since these 
facilities are built and operated primarily to benefit the 
public and since their operation is essentially a public 
function, it is subject to state regulation, and . . . such 
regulation may not result in an operation of these facili­
ties, even by privately owned companies, which uncon­
stitutionally interferes with and discriminates against 
interstate, commerce.” Marsh v. Alabama, 326 U. S. 501 
(1946). In that case, the state punished the crime of 
disturbing religious literature contrary to the wishes of 
the owner of town under “Title 14, § 426 of the 1940 Ala­
bama Code which makes it a crime to enter or remain 
on the premises of another after having been warned not 
to do so.” The conviction was reversed and remanded 
as being an unconstitutional deprivation by state action 
of freedom of speech as an element of due process and 
equal protection.

In Valle v. Stengel, 176 F. (2d) 697 (3d Cir. 1949), 
the arrest and eviction took place on a privately owned

18

t





o

19

amusement park to which all the public were admitted 
and patronage to which was encouraged through adver­
tising. The negroes and the white person acting in con­
cert with them, after being admitted to the park, were 
refused admission to the pool. The manager was aided 
and abetted by the police whom he called, so that the 
police act was attributed to the corporation and its man- 
agei and tieated as their own. This state action was 
held to constitute a deprivation of equal protection of 
the right to contract in pursuit of happiness through use 
of property.

This is closely comparable to the situation of de­
fendants, admitted to the store but not to the counter.

B. The decision below conflicts with decisions of 
this Court securing the Fourteenth Amendment right to 
freedom of expression.

1. Defendants’ presence at the lunch counter was 
a form of expression, a mean of communication; in the 
broad sense, it was “speech.”

“Speech” protected by the United States Constitu­
tion includes modes of expression other than by voice or 
by press. It includes “a significant medium for the com­
munication of ideas.” Joseph Burstyn, Inc., v. Wilson, 343 
U. S. 495 (1952).j  It includes activity forbidden by a stat- 
ute-makmgUrfa misdemeanor to “go near to or loiter 
about the premises or place of business of such other per­
sons . . .” It includes such activity “in appropriate 
places” even though the picketing was on grounds of a 
privately owned business. Thornhill v. Alabama, 310 U S 
88,106 (1940).



r r



Speech in the form of boycotting is protected. 
Giboney v. Empire Storage and Ice Co., 336 U. S. 490 
(1949). This is true also when it is used to end dis­
criminatory labor practices. New Negro Alliance v. Sa)ii- 
tary Grocery Co., 303 U. S. 552 (1938).

“Speech’’ in the form of “unfair” lists, picketing 
to deter showing a certain motion picture, to deter oper­
ating shops on Sunday, and to indicate a shop is not 
Kosher, has been held to be protected free speech by courts 
of other states.

Defendants’ act did not constitute such speech as 
must be limited; it did not incite to riot as in Feiver v. 
Neiv York, 340 U. S. 315 (1951); rather it was subject 
to protection even had it created dissatisfaction with con­
ditions as they are, as in Terminiello v. Chicago, 337 U. S. 
1 (1949).

Hence defendants’ act in sitting quietly in a place 
of business, for the purpose of expressing disapproval 
of a policy of racial discrimination practiced there, con­
stituted a form of speech. As such it is protected against 
interference by the state.

2. “The freedom of speech and of the press secured 
by the F irst Amendment against abridgment by the 
United States is similarly secured to all persons by the 
Fourteenth against abridgment by a state.” Schneider v. 
State, 308 U. S. 147 (1939).

When agents of the state (police officers, the dis­
trict attorney, this Honorable Court) arrested, charged 
and tried defendants under La. R. S. 14:59(6) (1960),



r



p

21

thereby preventing defendants from continuing their ex­
pression of disapproval of policy of racial discrimination 
by the management of the lunch counter, the State de­
prives defendants of an element of liberty guaranteed to 
them under the Fourteenth Amendment against such state 
action.

Hence, even if it be conceded arguendo that the 
statute might be constitutionally enforced in other cir­
cumstances, it may not be so when its enforcement limits 
a form of communication of ideas, as has been done in 
the present instance.

Rather than being arrested for their expression 
of opinion, defendants had a right to expect police pro­
tection to preserve order. Sellers v. Johnson, 163 F. (2d) 
877 (8th Cir. 1947), cert, denied, 332 U. S. 851 (1948).

I C. The decision of the trial judge in refusing the
I petitioners an opportunity to establish actual concert be­

tween the store proprietor and the police violated petition­
ers’ right to a fair and impartial trial as guaranteed by 
the Fourteenth Amendment.

The trial judge refused to allow the petitioners to 
introduce evidence which would tend to show concerted 
action between the State law enforcement officers and 
McCrory’s store manager. (See Bill of Exception No. 2, 
page. 85 of transcript.) The highly publicized statement 
of both the Mayor of the City of New Orleans, supra, 
page 6, and the Chief of Police, supra, page 4, form an 
important backdrop within which to decide this issue.

This expression of policy by the Mayor and the 
Superintendent of Police of the City of New Orleans oper-





ated as a prohibition to all members of the Negro raee 
from seeking to be served at lunch counters whether 
or not the proprietor was willing to serve them. More 
in point, the pronouncement of policy by the leaders 
of the municipal authority operated to constructively 
coerce the proprietors of business establishments not to 
integrate lunch counters at the risk of suffering munici­
pal censure or punishment. .

The Supreme Court, in Civil Rights Cases, 109 
U. S. 3, 17, 27 L. Ed. 835, 841, 3 Supreme Court 18, ruled 
that racial discriminations which are merely the wrong­
ful acts of individuals can remain outside the ban of 
the Constitution only so long as they are unsupported by 
state authority in the shape of laws, customs, or judi­
cial or executive proceedings. In order to successfully 
attack the administration of the statute, it was neces­
sary that defendants prove concert between the store 
manager and the police. This was relevant evidence, the 
exclusion of which was prejudicial to the defendants as 
it deprived them of the only means they had to show that 
they were the victims of prohibited state action rather 
than protected personal rights of the proprietor.

J  II.

The Public Importance of the Issues Presented.
“ AT This case presents issues posed by numerous 

similar demonstrations throughout the nation which have 
\ resulted in widespread desegregation and also in many





o
23

similar cases now pending in the state and federal courts. 
Petitioners need not multiply citations to demonstrate that 
during the past year thousands of students throughout 
the nation have participated in demonstrations like those 
for which petitioners have been convicted.

A comprehensive description of these “sit-in” pro­
tests appears in Pollitt, Dime Store Demonstration: Events 
and Legal Problems of the First Sixty Days, 1960 Duke 
Law Journal 315 (1960). These demonstrations have 
occurred in Alabama, Arkansas, Florida, Georgia, Louisi­
ana, North Carolina, South Carolina, Tennessee, Texas, 
Virginia and elsewhere. Pollitt, supra, passim.

In a large number of places this nationwide pro­
test has prompted startling changes at lunch counters 
throughout the South, and service is now afforded in many 

' establishments on a nonsegregated basis. The Attorney 
General of the United States has announced the end of 
segregation at public lunch counters in 69 cities, New  
York Times, August 11, 1960, page 14, col. 5 (late city 
edition i, and since that announcement the number of such 
cities has risen above 112, Neiv York Times, Oct. 18, 1960, 
page 47, col. 5 Hate city edition).

In many instances, however, these demonstrations, 
as in the case at bar, have resulted in arrests and crim­
inal prosecutions which, in their various aspects, pre­
sent as a fundamental issue questions jposed here, that





m

is, may the state use its power to compel racial segre­
gation in private establishments which are open to the 
public and to stifle protests against such segregation. 
Such cases having been presented to the Supreme Court 
of Appeals of Virginia,3 the Supreme Court of North 
Carolina,4 the Supreme Court of Arkansas,5 6 the Court 
of Criminal Appeals of Texas,'* the Court of Appeals of 
Alabama,7 the Court of Appeals of Maryland,8 * several 
South Carolina appellate courts,” and the Georgia Court 
of Appeals.10 Numerous other cases are pending at the 
trial level.

^  It is, therefore, of widespread public importance 
that the Court consider the issues here presented so that
8 R aym ond  B. R andolph , J r . ,  V. C om m onw ealth  of V a. (No. 5233, I960).
■* S ta te  o f N, C. v. F ox  an d  Sam pson  (No. 442. Supreme Court, Fall 

Term 1960).
£ C h este r B riggs, e t a l., V. S ta te  o f A rk an sas  (No. 4992) (consolidated 

with S m ith  V. S ta te  o f A rk ., No. 4994, and L u p p e r V . S ta te  of 
A rk ., No. 4997).

6 B riscoe  v. S ta te  o f T exas (Court of Crim. App., 1960, No. 32347)
and related cases (decided Dec. 14, 1960; conviction reversed on 
ground that indictment charging in alternative invalid for vague­
ness).

7 B essie Cole V . C ity  of M on tgom ery  (3rd Div. Case No. 57) (together
with seven other cases, Case Nos. 58-64).

8 W illiam  L. G rif f in , e t a l., V. S ta te  o f  M ary lan d , No. 248, September
Term 1960 (two appeals in one record); see related civil action 
sub nom. G riff in , e t  a l., V. C ollins, e t a l., 187 F. Supp. 149 (D.C. 
D.Md. 1960).

® C ity  o f C h arle s to n  v. M itchell, e t  a l., (Court of Gen. Sess. for Charles­
ton County) (appeal from Recorders Ct.) ; S ta te  v. R andolph, e t 
al., (Court of Gen. Sess. for Sumter County) (appeal from 
Magistrates Ct.) ; C ity  of C o lum b ia  v. B ouie, e t  a l., (Court of 
Gen. Sess. for Richland County) (appeal from Recorders Ct.). 

10 M. L. K ing , J r . ,  v. S ta te  o f G eo rg ia  (two appeals: No. 38648 and  
N o. 3 8 7 1 8 ).

24





p

25

the lower courts and the public may be guided authorita­
tively with respect to the constitutional limitations on 
state prosecutions for engaging in this type of protest.

B. The holding below, if allowed to stand, will in 
effect undermine numerous decisions of this Court strik­
ing down state enforced racial discrimination. For ex- 

V-3mpIeTl:he discrimination on buses interdicted by the 
Constitution in Gayle v. Browder, 352 U. S. 903, aff’d 
142 F. Supp. 707, could be revived by convictions for 
disturbing the peace. In the same manner, state en­
forced prohibitions against members of the white and 
colored races participating in the same athletic contests, 
outlawed in Dorsey v. State Athletic Commission, 168 F. 
Supp. 149, aff’d 359 U. S. 533, could be accomplished. 
Indeed, segregation of schools, forbidden by Brown v. 
Board of Education, 347 U. S. 483, and innumerable cases 
decided since that time, especially those affecting Louisi­
ana, e. g., Orleans Parish School Board v. Bush, 242 F. 
(2d) 156 (5th Cir. 1957), cert, denied 354 U. S. 921. 
might also be accomplished by prosecutions for disturb­
ing the peace even though no disturbances in fact occurred.

The holding below, if allowed to stand, would be 
completely subversive of the numerous decisions through­
out the federal judiciary outlawing state-enforced racial 
distinctions. Indeed, the segregation here is perhaps more 
invidious than that accomplished by other means for it is 
not only based upon a vague statute which is enforced by 
the police according to their personal notions of what con-



rr



26

stitutes a violation and then sanctioned by state courts 
but it suppresses freedom of expression as well.

CONCLUSION.
WHEREFORE, for the foregoing reasons, it is 

respectfully submitted that the petition for writ of certio­
rari should be granted.

Respectfully submitted,

JOHN P. NELSON, JR.,
702 Gravier Building,
535 Gravier Street,
New Orleans 12, Louisiana;

LOLIS E. ELIE,
NILS R. DOUGLAS,
ROBERT F. COLLINGS,

211 Dryades Street,
New Orleans, Louisiana, 

Attorneys for Petitioners.

i



r r -



APPENDIX

APPENDIX TO THE PETITION FOR W RIT OF CER­
TIORARI TO THE SUPREME COURT OF THE  

STA TE  OF LOUISIANA.



*v
rr



TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 58

RUDOLPH LOMBARD, ET AL., PETITIONERS,

vs.

LOUISIANA

JN  WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 

STATE OF LOUISIANA

P E T IT IO N  FO R  C E R T IO R A R I F IL E D  D EC EM B ER  28 , 1961 

C E R T IO R A R I G RANTED JU N E  25 , 1962





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 58

RUDOLPH LOMBARD, ET AL., PETITIONERS,

vs.

LOUISIANA

ON WRIT OF CERTIORARI TO THE SUPREME COURT OF THE 

STATE OF LOUISIANA

I N D E X
Original Print

Record from the Criminal District Court for the 
Parish of Orleans, State of Louisiana
Chronological order of minute entries_________  1 1
Information and endorsements thereon ___ _____ 6 6
Motion to quash bill of information___________  9 9
Answer to motion to quash___________________  12 11
Transcript of testimony on motion to quash ___ 13 12

Appearances _____________________________  13 12
Colloquy between Court and counsel ________ 14 12
Testimony of deLesseps Story Morrison—

direct ------------------------- 15 13
cross _________________  18 15
redirect ___________ ___ 18 16

Joseph I. Giarrusso—
direct ________________  19 16

Wendell Barrett—
direct ________________  21 18
cross _________________  29 26

R ecord P r e ss , P r in t e r s , N e w  Y o r k , N. Y ., A u g u st  1, 1962



11 IN D E X

Original Print
Record from the Criminal District Court for the 

Parish of Orleans, State of Louisiana—Continued
Judgment on motion to quash------------------------  32 28
Motion for new trial ------------------------------------  76 86
Motion in arrest of judgment ------------------------  80 90
Bill of exception No. 1 and per curiam thereon 82 92
Bill of exception No. 2 and per curiam thereon 85 93
Bill of exception No. 3 and per curiam thereon 90 98
Bill of exception No. 4 and per curiam thereon 93 100
Motion for appeal and order thereon -------------  96 101
Transcript of testimony --------------------------------  97 102

Appearances --------------------------------------------  97 103
Testimony of Robert Glenn Graves—

direct ________________  98 103
cross _________________  101 106

Wendell Barrett—
direct ________________  108 111
cross _________________  116 117

Captain Lucien Cutrera—
direct ________________  119 121
cross _________________  122 123

Major Edward Reuther—
direct ________________  127 128
cross _________________  129 130

Technician Bernard 
Fruchtzweig—

direct ________________  129 130
cross _________________  131 132

Motion for directed verdict and denial thereof 132 132
Testimony of Rudolph Joseph Lom bard-

direct ________________  133 132
Cecil Winston Carter—

direct ________________  134 134
cross _________________  136 135

Sydney Langston Goldfinch,
Jr.—

direct ________________  136 135
Oretha Maureen Castle—

direct ------------------------  137 137



Original Print
Record from the Criminal District Court for the 

Parish of Orleans, State of Louisiana—Continued 
Transcript of testimony—Continued

V erd ict----------------------------------------------------- 139 138
Reporter’s certificate (omitted in printing) _ 140 138
Clerk’s certificate (omitted in p r in tin g )_____ 141 138
Defense Exhibit No. 1—Statement of deLes- 

seps S. Morrison, Mayor of the City of
New Orleans ____________________________ 142 138

Defense Exhibit No. 2—Statement of Joseph 
I. Giarrusso, Superintendent of Police, City
of New Orleans ________________________  143 139

Proceedings in the Supreme Court of Louisiana_ 146 141
Opinion, Summers, J. --------------------------------------  146 141
Petition for rehearing --------------------------------------  155 149
Order refusing application for rehearing ________ 158 152
Clerk’s certificate (omitted in printing) _________ 165 152
Order granting certiorari ---------------------------------- 166 152

INDEX 111





1

[fol. 1]
IN THE CRIMINAL DISTRICT COURT 

FOR THE PARISH OF ORLEANS
No. 168-520

Information for Violating Revised Statute 14:59(6)

S tate of L ouisiana 

versus
Oretha Castle, S ydney L angston Goldfinch, J r., 

R udolph L ombard, Cecil W inston Carter, J r.

Chronological Order of Minute  E ntries

Copy of Minute Entry of Wed., October 5, 1960
The above defendants appeared at the bar of the court, 

* * * Sidney L. Goldfinch by John Nelson, Esq., and Ru­
dolph J. Lombard, Oretha Castle and Cecil W. Carter, Jr., 
by Collins, Douglas and Elie, Attys., * # * and each ar­
raigned on the charge preferred against them and each 
pleaded not guilty thereto. * * * The court allowed the 
defendants, Sidney L. Goldfinch, Rudolph Lombard, Oretha 
Castle and Cecil Winston Carter, Jr., until October 17,1960 
to file further pleadings. * * *

Copy of Minute Entry of Mon., October 17th, 1960
The above defendants appeared at the bar of the court, 

attended by their counsel, John P. Nelson, Esq., and Lolis 
Elie, Esq. Mr. Nelson presented to the court on behalf of 
all defendants a motion to quash, together with a memo­
randa of authorities. The court ordered the same filed and 
set the matter for hearing on November 3, 1960. The court 
allowed the defendants until October 24, 1960, to file any 
further authorities. The defendants were released on their 
bond to await further proceedings.



2

Copy of Minute Entry of Thurs., November 3, 1960
The above defendants appeared at the bar of the court, 

Sydney Goldfinch, Jr., attended by his counsel, John P. 
Nelson, Esq., and Rudolph J. Lombard, Oretha Castle and 
Cecil W. Carter, Jr., attended by their counsel Lolis Elie, 
Esq., and N. R. Douglas, Esq., for hearing on defendants’ 
motion to quash. The state was represented by Robert 
Zibilich, Assistant District Attorney. Mr. Zibilich pre­
sented to the court, the State’s answer to the motion to 
quash and the court ordered the same filed. The above 
[fol. 2] answer was accompanied by a memoranda of au­
thorities, which the court also ordered filed. Both sides 
being ready, DeLesseps S. Morrison, Joseph I. Giarrusso, 
Wendell Barrett were duly sworn by the clerk, testified for 
the defense and cross-examined by the state. In connection 
with the testimony of Wendell Barrett, Mr. Nelson re­
served a bill of exceptions when the court limited a question 
asked by Mr. Nelson of the witness, as noted by the stenog­
rapher. Also in connection with the testimony of Mr. 
Barrett, the state made several objections to questions 
asked by Mr. Nelson. The court sustained the objections. 
Mr. Nelson reserved bills of exceptions, as noted by the 
stenographer. In connection with the above testimony, Mr. 
Nelson filed in evidence, Page Seven—Section One of the 
Times-Picayune, dated Tuesday, September 13, 1960, 
marked S-l; Page Eighteen—Section One of the Times- 
Picayune, dated Saturday, September 10, 1960, marked S-2 
and House Bills Nos. 343 through 366 included of the 
Louisiana House of Representatives as indicated in the 
Official Journal of the House of Representatives of the State 
of Louisiana for the year 1960; and Acts of the Louisiana 
Legislature for the year 1960 Nos. 69, 73, 77, 78, 79, 70, 
76, 81 and 68. The court ordered the above filed of record. 
The defense rested. The state rested. The matter was then 
submitted by the state and defense. The court took the 
matter under advisement and the defendants were released 
on their bond to await further proceedings.



3

Copy of Minute Entry of Monday, November 28th, 1960
The defendants, Sidney L. Goldfinch, Jr., Rudolph J. 

Lombard, Oretha Castle and Cecil W. Carter, Jr., appeared 
at the bar of the court, attended by their counsel John P. 
Nelson, Esq., Lolis E. Elie, Esq., and Nils R. Douglas, Esq., 
for decision on the motion to quash filed by defendants. 
The state was represented by Robert Zibilich, Assistant 
District Attorney. The court in a written opinion rendered 
the following judgment: “The court holds L.S.A.-R.S. 
14:59(6) constitutional, and the bill of information filed 
thereunder good and sufficient in law. The motion to quash 
[fol. 3] is overruled and denied. New Orleans, Louisiana, 
28th., day of November, 1960. (signed) J. Bernard Cocke, 
Judge.” The court ordered the judgment recorded. Mr. 
Nelson, on behalf of all defendants reserved a bill of ex­
ceptions to the court’s ruling, all as noted by the stenog­
rapher. On motion of Mr. Zibilich and by agreement of 
counsel for defendants, the trial of the above matter was 
set for December 7, 1960. The defendants were discharged 
on their bond to await further proceedings.

Copy of Minute Entry of Wednesday, December 7, 1960
The above defendants appeared at the bar of the court, 

Sidney L. Goldfinch attended by his counsel, John P. Nel­
son, Esq., and Rudolph L. Lombard, Oretha Castle and 
Cecil W. Carter, Jr., attended by their counsel, Lolis Elie, 
Esq., and Nils Douglas, Esq., for trial. The State was rep­
resented by Robert Zibilich, Assistant District Attorney. 
Both sides being ready, Robert Glen Graves was duly 
sworn by the clerk, testified for the state and cross- 
examined by the defense. In connection with the testimony 
of Mr. Graves, the state made objections to several ques­
tions by Mr. Nelson. The court sustained the objections. 
Mr. Nelson reserved bills of exceptions, as noted by the 
stenographer. On several questions by Mr. Elie, the state 
objected. The objections were sustained by the court. Mr. 
Elie reserved bills of exceptions, as noted by the stenog­
rapher. On (sic) Mr. Nelson objected to questions asked 
by the court of the witness. The court overruled the ob-



4

jections. Mr. Nelson reserved bills of exceptions, as noted 
by the stenographer. Wendell Barrett was duly sworn by 
the clerk, testified for the state and cross-examined by the 
defense. In connection with the testimony of Mr. Barrett, 
Mr. Nelson objected to questions asked by the court of the 
witness. The court overruled the objections. Mr. Nelson 
reserved bills of exceptions, as noted by the stenographer. 
The state objected to several questions asked by Mr. Nelson. 
The court sustained the objections. Mr. Nelson reserved 
bills of exceptions, as noted by the stenographer. Capt. 
Lucien Cutrera was duly sworn by the clerk, testified for 
the state and cross-examined by the defense. In connec­
tion with the testimony of Capt. Cutrera, the state objected 
[fol. 4] to several questions asked by Mr. Nelson of the 
witness. The court sustained the objections. Mr. Nelson 
reserved bills of exceptions, as noted by the stenographer. 
Mr. Nelson reserved a bill of exceptions to remarks made 
by the court, all as noted by the stenographer. Mr. Nelson 
objected to several questions asked by the state of the 
witness. The court overruled the objections. Mr. Nelson 
reserved bills of exceptions, as noted by the stenographer. 
Maj. Edward Reuther was duly sworn by the clerk, testified 
for the state and cross-examined by the defense. In con­
nection with the testimony of Maj. Reuther, Mr. Nelson 
made an objection, which was overruled by the court. Mr. 
Nelson reserved a bill of exceptions, as noted by the stenog­
rapher. Bernard Fruchtweig was duly sworn by the clerk, 
testified for the state and cross-examined by the defense. 
Mr. Zibilich requested of the court that he be allowed to 
show a certain film, taken by the witness. There being no 
objection, the court ordered the film shown. Mr. Zibilich 
offered in evidence, the roll of film shown to the court, 
marked S-l. The state rested. Mr. Nelson moved the court 
for a directed verdict. The court denied the motion. Ru­
dolph J. Lombard, Cecil W. Carter, Jr., Sydney L. Gold­
finch, and Oretha Castle were duly sworn by the clerk, 
testified for the defense and cross-examined by the state. 
The defense rested. The state submitted the matter without 
argument. Mr. Nelson made an argument for the defense. 
The matter was submitted. The court rendered the follow-



5

ing judgment: “Dec. 5/60. Each defendant guilty as 
charged, (signed) J. Bernard Cocke, Judge.” The court 
ordered the judgment recorded, the witnesses discharged 
and the defendants discharged on their bond to await sen­
tence on January 3, 1961.

Copy of Minute Entry of Tuesday, January 3,1961
The defendants, Sydney L. Goldfinch, Jr., Rudolph J. 

Lombard, Oretha Castle and Cecil W. Carter, Jr., appeared 
at the bar of the court, attended by their counsel, John P. 
Nelson, Esq., and Nils Douglas, Esq., for sentence. Mr. 
Nelson presented to the court, on behalf of all defendants, 
[fol. 5] a motion for a new trial and a motion in arrest 
of judgment. The court ordered the motions filed. The 
matter of the motion for a new trial was submitted by 
both sides. The court overruled the motion for a new trial. 
Mr. Nelson reserved a bill of exceptions, as noted by the 
stenographer. The matter of the motion in arrest of judg­
ment was submitted by both sides. The court denied the 
motion in arrest of judgment. Mr. Nelson reserved a bill 
of exceptions, as noted by the stenographer. And the 
Court continued the matter of sentence in the above matter 
to January 10, 1961, and ordered the defendants released 
on their bond to await further proceedings.

Copy of Minute Entry of Wednesday, January 10, 1961
The defendants, Sydney L. Goldfinch, Jr., Rudolph J. 

Lombard, Oretha Castle, and Cecil W. Carter, Jr., appeared 
at the bar of the court, attended by their counsel, John P. 
Nelson, Esq., Nils Douglas, Esq., and Lolis Elie, Esq., for 
sentence. Mr, Nelson presented to the court on behalf of 
all defendants, bills of exceptions Nos. 1, 2, 3, and 4. The 
court received the bills, signed same and ordered same 
filed. The court signed and ordered filed its per curiams 
to defendants’ bills of exceptions, Nos. 1, 2, 3, and 4. All 
of the above was done in open court prior to sentence and 
the signing of the application for an appeal. The defen­
dants were each sentenced by the court to pay a fine of 
Three hundred and fifty ($350.00) Dollars and imprison­



6

ment in Parish Prison for Sixty (60) days and in default 
of the payment of fine to imprisonment in Parish Prison 
for Sixty (60) days additional. Mr. Nelson, on behalf of 
each defendant, presented to the court an application for 
an appeal to the Louisiana Supreme Court. The court 
signed and ordered filed the application for appeal, making 
same returnable February 1, 1961 and with bail in the sum 
of $750.00 for each defendant, pending appeal.

[fol. 6]
I n  t h e  C r im in a l  D istrict  C ourt 

F or t h e  P arish  of Orleans

I nfo rm atio n

The State of Louisiana) ss :
Robert J. Zibilich, Assistant District Attorney for the 

Parish of Orleans, who in the name and by the authority 
of the said State, prosecutes, in this behalf, in proper 
person comes into the Criminal District Court for the 
Parish of Orleans, in the Parish of Orleans, and gives the 
said Court here to understand and be informed that one

Sydney Langston Goldfinch, Jr., one 
Rudolph Joseph Lombard, one 
Oretha Castle, and one 
Cecil Winston Carter, Jr., each,

late of the Parish of Orleans on the seventeenth day of 
September in the year of our Lord, one thousand nine 
hundred and sixty with force and arms in the Parish of 
Orleans aforesaid, and within the jurisdiction of the Crim­
inal District Court for the Parish of Orleans, did wilfully, 
unlawfully and intentionally take temporary possession of 
the lunch counter and restaurant of McCrory’s Store, a 
corporation, authorized to do business in the State of 
Louisiana, located at 1005 Canal Street, and did wilfully, 
unlawfully and intentionally remain in and at the lunch 
counter and restaurant in said place of business, after 
Wendell Barrett the Manager, a person in charge of such 
business had ordered the said Sydney Langston Gold-



7

finch, Jr., Rudolph Joseph Lombard, Oretha Castle and 
Cecil Winston Carter, Jr. to leave the premises of said 
lunch counter and restaurant, and to desist from the tem­
porary possession of same, contrary to the form of the 
Statute of the State of Louisiana in such case made and 
provided and against the peace and dignity of the same.

Robert J. Zibilich, Assistant District Attorney for 
the Parish of Orleans.

[fol. 7]
E n d orsem en ts  on  t h e  R everse op t h e  I nfo rm atio n  

for  V io la tin g  R evised  S ta tu te  14:59.6

No. 168-520 
Section “E ”

S tate of L ou isia n a  

versus
S ydney  L angston  G o l d f in c h , J r., e t  a l .

Information for Vio: R. S. 14:59.6
Filed Sept. 28th, 1960
(Sig) D an  B. H aggerty, Deputy Clerk.

Each Arraigned Oct. 5th, 1960 and 
pleaded Not Guilty. (Sig) E. A. M ouras, 
Minute Clerk.

Defendants allowed until Oct. 17/60 to file 
further pleadings. (Sigd.) E. A. M ouras, 
Min. Clk.



8

Oct. 17/60—Motion to quash filed by all 
defendants. Matter set for hearing on 
Nov. 3/60. (Sgd) E. A. M ouras, Min. Clk.

Nov. 3/60. The State filed answer to mo­
tion to quash. Motion to quash heard and 
submitted by the state and defense. The 
court took the matter under advisement. 
(Sgd) E. A. M ouras, Min. Clk.

Nov. 28/60—Motion to quash overruled 
& denied, (see written opinion in file). 
(Sgd.) E. A. M ouras, Min. Clk.

[fol. 8]
Dec. 7/60—Each defendant guilty as 
charged. (Sgd.) J. B ernard C o ck e , Judge.

Jan. 3/61—Motion for new trial and mo­
tion in arrest of judgment filed by de­
fendants. Matters heard and submitted. 
The court overruled the motion for new 
trial and denied the motion in arrest of 
judgment. Matter cont. to Jan. 10/61. 
(Sgd) E. A. M ouras, Min. Clk.

Jan. 10/61—Bills of exceptions Nos. 1, 2, 
3, & 4 filed by defendants and signed by 
the court. The Court signed and ordered 
filed per curiams to bills of exceptions. 
The court sentenced each defendant to 
pay a fine of $350.00 and imprisonment in 
Parish Prison for 60 days and in default 
of fine to imprisonment in Parish Prison 
for 60 days additional. Motion for appeal 
filed by each deft, and the court signed



the application for appeal to the Supreme 
Court of La., with bail in the sum of 
$750.00 for each deft., pending appeal. 
(Sgd) E. A. M ouras, Min. Clk.

[fol. 9]
I n  t h e  C r im in a l  D ist r ic t  C ourt 

P a rish  of O rleans

[Title omitted]

M otion  to Q u a sh — Filed October 17, 1960
Now into this Honorable Court comes Kudolph Lombard, 

Oretha Castle, Cecil Carter, Jr., and Sydney L. Goldfinch, 
Jr., and having heard that they have been charged in a 
Bill of Information in the above entitled and numbered 
cause, and protesting that they are not guilty of the offense 
set out in the said Bill of Information; moves to quash the 
said Bill of Information in its entirety for the reason that 
movers are deprived of the due process of law and equal 
protection of law guaranteed by the Constitution and law 
of the State of Louisiana, and of the United States of 
America as follows:

1. That the statutes under which defendants are charged 
are unconstitutional and in contravention of the Fourteenth 
Amendment of the Constitution of the United States of 
America, and in contravention of the Constitution of the 
State of Louisiana, in that they were enacted for the 
specific purpose and intent to implement and further the 
state’s policy of enforced segregation of races.

2. That the said defendants are being deprived of their 
rights under the “equal protection and due process” clauses 
of both the Constitution of Louisiana and of the United 
States of America, in that the said laws under which the 
Bill of Information is founded is being enforced against 
them arbitrarily, capriciously and discriminately, in that 
it is being applied and administered unjustly and illegally, 
and only against persons of the Negro race and/or white



10

persons who act in concert with members of the Negro 
race.

3. That the statutes under which the prosecution is based 
and the Bill of Information founded thereon, are both so 
vague, indefinite and uncertain as not to establish an ascer­
tainable standard of guilt.

4. That the statutes under which the prosecution is 
based, exceed the police power of the state, in that they 
have no real, substantial or rational relation to the public 
safety, health, moral, or general welfare, but have for their 
[fol. 10] purpose and object, governmentally sponsored and 
enforced separation of races, then, denying defendants 
their rights under the first, thirteenth and fourteenth 
Amendments to the United States Constitution, and Art. 1, 
Section 2 of the Louisiana Constitution.

5. That the Bill of Information on which the prosecution 
is based, does nothing more than set forth a conclusion 
of law, and does not state with certainty and sufficient 
clarity the nature of the accusation.

6. That the statutes deprive your defendants of equal 
protection of the law in that it excludes from its provisions 
a certain class of citizens namely those who at the time are 
active with others in furtherance of certain labor union 
activities.

7. That the refusal to give service solely because of race, 
the arrest and subsequent charge are all unconstitutional 
acts in violation of the Fourteenth Amendment of the 
United States Constitution, in that the act of the Com­
pany’s representative was not the free will act of a private 
individual, but rather an act which was encouraged, fostered 
and promoted by state authority in support of a custom and 
policy of enforced segregation of race at lunch counters.

8. That the arrest, charge and prosecution of the defen­
dants are unconstitutional, in that it is the result of state 
and municipal action, the practical effect of which is to 
encourage and foster discrimination by private parties.

Wherefore, the said defendants pray that this Motion to 
Quash be maintained and that the said Information be



11

declared null and void, and that they he discharged there­
from.

New Orleans, Louisiana, this 17 day of October, 1960.
Collins, Douglas & Elie, John P. Nelson Jr., By: 

Lolis E. Elie.

Duly sworn to by four defendants (jurats omitted in 
printing).

[fol. 12]
I n  t h e  C r im in a l  D istr ic t  C ourt 

P a r ish  of  Orleans

[Title omitted]

A n sw er  to M otion  to Q u a sh —Filed November 3, 1960

Now into Court comes Robert J. Zibilich, Assistant Dis­
trict Attorney for the Parish of Orleans, and on behalf of 
the State answers the motion to quash filed by defendants 
herein as follows:

The State denies categorically that the statute under 
which the defendants are charged is unconstitutional and 
in contravention of the Fourteenth Amendment of the 
Constitution of the United States of America and the Con­
stitution of Louisiana, and further denies that the defen­
dants are being deprived of their rights under the “equal 
protection and due process” clauses of the Constitution of 
the State of Louisiana and the Constitution of the United 
States of America.

The State further denies that the said law is being en­
forced against them arbitrarily, capriciously and discrimi- 
nately, and further denies that the statute is so vague as 
to render it unconstitutional.

Wherefore, your respondent prays that this answer be 
deemed sufficient and that the matter be proceeded with 
according to law.

November 3, 1960.
Robert J. Zibilich, Assistant District Attorney, Par­

ish of Orleans.



[fol. 13]
I n  t h e  Cr im in a l  D istrict  C ourt 

P arish  of O rleans

[Title omitted]

Transcript of Testimony on Motion to Quash— 
November 3, 1960

Testimony taken in Open Court before the Honorable 
J. Bernard Cocke, Judge Presiding on the 3rd day of 
November, 1960, on the hearing on the Motion to Quash 
the Information in the above numbered and entitled cause.

A p p e a r a n c e s  :

Robert J. Zibilich, Esq., Assistant District Attorney, For 
the State.

John P. Nelson, Esq., Lolis E. Elie, Esq., Nils Douglas, 
Esq., Attorneys for defendants Goldfinch, Lombard, Castle 
and Carter.

Reported by: Charles A. Neyrey, Official Court Reporter, 
Section “E ”.

12

[fol. 14]
C olloquy B e t w e e n  C ourt and C o u n se l

The Court: State ready?
Mr. Zibilich: State’s ready.
Mr. Nelson: We are ready Your Honor.
The Court: Under what particular phase is it that you 

want to take up?
Mr. Nelson: The phase dealing strictly with the Motion 

to Quash and the Constitutional questions therein, and the 
purpose of this hearing is to introduce evidence in support 
of our Motion to Quash.

The Court: As I understand your contention, you claim 
it is the administration of this particular law which you 
say is unconstitutional because of its administration.

Mr. Nelson: That is one of the points Your Honor. There



13

is listed in our memorandum five major points of our Mo­
tion to Quash.

The Court: I won’t permit you to take evidence on any­
thing but that one point, and that is the only handling of 
the case on which any testimony will be taken.

Mr. Nelson: Yes, Your Honor.
The Court: You want to excuse Mr. Dowling?
Mr. Nelson: Yes sir and Captain Cutrera is excused 

also.
The Court: Proceed.

[fol. 15] --------
deL esseps  S tory M orrison , called as a witness for Mover, 

after first being duly sworn by the Minute Clerk, testified 
as follows:

Direct examination.
By Mr. Nelson:

Q. What is your name please?
A. deLesseps S. Morrison.
Q. And Mr. Morrison you are presently the Mayor of the 

City of New Orleans?
A. Correct.
Q. In connection with your duties as Mayor are you also 

the Chief Law Enforcement officer?
A. The Superintendent of Police I would say is the chief 

law enforcement officer, but he serves under my direction, 
so I do have that responsibility.

Q. It is part of your duties to set policy for the police 
and to also encourage them to take certain action in any 
particular cases ?

A. It is the policy of my office and that of the City gov­
ernment to set the line or direction of policy to the police 
department.

Q. In connection with your duties of Mayor—first, you 
were the Mayor during the month of September 1960?

A. Correct.
Q. How long have you been Mayor of the City of New 

Orleans?
A. Fourteen and a half years.



14

Q. Directing your attention to Friday, September 9th, 
do you recall an incident where they had a sit-in demon­
stration at the Woolworth Store in the city of New Orleans?

A. It was reported to me, yes.
Q. Now, I show you a copy of the Times-Picayune dated 

Tuesday morning, September 13th, 1960, Page 7 of Section 
1 to where it says “Sit-in Out Mayor warns”, and particu­
larly a quote that is in red lines in that column and ask you 
[fob 16] if you will kindly read it, not out loud but to your­
self.

A. Correct.
Q. Is that an accurate report of the statement which you 

issued on that date?
A. It is.
Q. This report was issued as a result of what?
A. Well this was following the initial sit-in and follow-up 

demonstration the next day, I believe by picketing in the 
same area, and I outlined to the police department and the 
community the two acts of the Legislature 70 and 80 which 
dealt with this matter and gave the reasons in the public 
interest that we should carry out the intent and purpose 
of the law. Briefly that was it.

Mr. Nelson: In connection with the Mayor’s testimony, 
would like to offer, introduce and file in evidence Page 7 
of the Times-Picayune of Tuesday morning, September 
13th, and mark it for identification as Defense-1.

Mr. Zibilich: No objection.
The Court: Let it be filed.

Examination (resumed).

By Mr. Nelson:
Q. To your knowledge do you know of any establish­

ments in the City of New Orleans which, eating establish­
ments, which caters to both negroes and white?

A. I would have no way of answering that, and I have 
to have personal knowledge in order to answer, and there 
are thousands of places in New Orleans and I could not 
speak for what they are doing each one of them.



15

Q. In your experience in traveling throughout the town, 
do you know of any establishments that serve both?

A. I haven’t seen anywhere where they had mixed lunch 
[fol. 17] counters, but there are some that handle both 
negroes and whites at separate counters.

Q. But as far as negroes and whites eating at the same 
counter?

A. I have not seen any, but I  repeat that I have to testify 
of my own personal knowledge.

Q. And you have not seen any that served both at the 
same counter anywhere in this city?

A. I  have not.
Q. Referring to sit-in demonstrations in your report, you 

are referring to sit-in demonstrations of the type that were 
performed in the Woolworth Department Store in this city?

A. Yes sir.
Q. And sit-ins of a similar nature?
A. That is correct.
Q. I  have no further questions.

By Mr. E lie:
Q. In answer to counsel’s questions you stated that with 

reference to acts 70 and 80 of the 1960 Legislature, you 
say that the intent or was—you say that the intent you 
made reference to, to the intent and purpose of those acts?

A. Right.
Q. In your opinion would you say the intent and purpose 

was to prevent Negroes from—
The Court: I will determine myself as to what the intent 

and purpose of the Acts were. That is a question of law.
Mr. E lie: I  submit that as chief legal officer, the opinion 

of the Mayor as regards—
The Court: That is correct with reference to any instruc­

tions directed to the Police Department. You have a right 
to draw whatever inferences from that in connection with 
[fol. 18] the testimony given, but in the long run I will 
decide what the intent and purpose of the law is.



16

Cross examination.

By Mr. Zabilich:
Q. In your releases to the press concerning alleged sit-in 

demonstrations at Woolworth, did you make any references 
whatsoever to Revised Statutes 1 4 :59 ? Did you make any 
references to the criminal mischief law of the State?

A. I was, in the connection—
Q. You may explain your answer.
A. My statement did encompass any laws covering ques­

tions of disturbing the peace, of public acts which would 
create a disturbance or confusion, disturbances of the peace, 
and I specifically quoted these two acts because they are 
of recent nature and somewhat specific in regard to the 
question, but I have a feeling that matters of this kind, 
when persons engage in this type of demonstration, this 
type of activity as a natural consequence will create dis­
turbances of the peace and in many cases set off chain 
reactions that can be much more serious.

Redirect examination.

By Mr. Elie:
Q. Did you receive any advice from anyone, any legal 

advice—
Mr. Zibilich: I  object.
The Court: The Mayor is a lawyer, and one of the best.
The Mayor: Thank you Judge, but I ’m not that good.

[fol. 19] J o seph  I. G iarrtjsso, a witness for Mover, after 
first being duly sworn by the Minute Clerk, testified as 
follows:

Direct examination.

By Mr. Nelson:
Q. What is your full name?
A. Joseph I. Giarrusso.



17

Q. What is your present occupation Mr. Giarrusso?
A. Superintendent of Police.
Q. Of the City of New Orleans?
A. Yes sir.
Q. Were you so employed during the month of Septem­

ber of 1960?
A. Yes sir.
Q. You recall Mr. Giarrusso an incident involving a sit- 

in demonstration in Woolworth’s on September 9th, 1960?
A. Yes sir.
Q. In connection with that sit-in demonstration did you 

on September 10th, do you recall issuing a statement to the 
public generally, do you recall issuing a statement?

A. Yes sir.
Q. In that connection I show you a copy of the Saturday 

morning Times-Picayune dated September 10th, and direct 
your attention to Page 18 Section 1, and what purports 
to be a quote from you. Would you kindly read that within 
the red lines, (complies) Superintendent Giarrusso, is that 
an accurate report of the statement you issued following 
the sit-in demonstration, following the Woolworth sit-in 
demonstration?

A. Yes sir.
Q. And this statement, what was the reason for the is­

suance of this statement, Superintendent?
A. The reason for it. As the statement says I was hoping 

that situations of this kind would not come up in the future 
[fol. 20] to provoke any disorder of any kind in the com­
munity.

Q. I gather the situation you refer to are situations such 
as at the 'Woolworth’s Store and similar establishments?

A. That is right.
Mr. Nelson: Like to offer, introduce and file in evidence, 

Page 18, Section 1 of the Times-Picayune dated September 
10th, and mark same Defense 2.

Mr. Zibilich: No objection.
The Court: Let it be filed.



18

Examination (resumed).

By Mr. Nelson:
Q. How long have you been a member of the New Orleans 

Police Department?
A. Going on fifteen years.
Q. In your experience as a member of the New Orleans 

Police Department, and a resident of the city of New 
Orleans, do you know of any public establishments that 
cater to both Negroes and whites at the same lunch coun­
ters in the city of New Orleans?

Mr. Zibilich: I object. I don’t know whether it is rele­
vant.

The Court: I am going to permit the answer. The ob­
jection is overruled.

A. No, sir, I do not.
Mr. Zibilich: No questions.

[fol. 21] Me. W endell B arbett, a witness for Mover, 
after first being duly sworn by the Minute Clerk, testified 
as follows:

Direct examination.

By Mr. Nelson:
Q. Your full name please?
A. Wendell Barrett.
Q. What is your present address?
A. 4934 Reed Boulevard.
Q. Is that in the City of New Orleans?
A. New Orleans 27.
Q. Your present occupation?
A. Manager of McCrory’s 5 and 10 Cents Store.
Q. How long have you been manager?
A. In this store ?
Q. Yes.
A. Three years, almost 2y2 to 3 years.



19

Q. What type of store is McCrory’s?
A. Store made up of individual departments.
Q. That caters to the general public?
A. That caters to the general public.
Q. What do they sell?
A. Well each thing?
The Court: Everything but drugs and the drug store 

sells everything else.
A. Drugs too Your Honor.

Examination (resumed).

By Mr. Nelson:
Q. Were you ever manager of any other McCrory’s 

stores?
A. Savannah, Georgia and Valdesta, Georgia.
Q. And also New Orleans?
A. Yes sir.
Q. McCrory’s Store here, in New Orleans, is that part 

of a national chain?
[fol. 22] A. It is.

Q. What is the name of the National chain?
A. McCrory Stores Incorporated.
Q. And in approximately how many states does it op­

erate ?
A. Approximately 34 states.
Q. Mr. Barrett, what is the general policy of McCrory 

Stores Inc. relative to segregated lunch counters?
Mr. Zibilich: I am going to object to any further ques­

tioning along these lines. The purpose for this testimony 
is in connection with the Motion to Quash wherein it is 
alleged that the administration of the law by certain law 
enfoi'cement officials is unconstitutional. Mr. Barrett by his 
own testimony is not a member of the New Orleans Police 
Department and is also not a member of any other law 
enforcement agency.

The Court: I  am going to overrule the objection as to 
what the policy is of McCrory’s Stores Incorporated. We 
are not interested in what they do in California and Con-



20

necticut or anywheres else. There may be a general policy 
but confine ourselves to what is the policy of this particular 
store within this particular jurisdiction. So with that ex­
planation the objection is overruled.

Mr. Nelson: Then I can ask that question?
The Court: I am not going to permit the general policy 

of McCrory’s as it might effect the other 34 states to go 
into this record, because the only thing we are interested 
in is the policy in this particular store. That policy may 
be dictated nationally, that may be true, but I ’m not in­
terested in what the other 33 states do.

Mr. Nelson: Before I take my bill I want to be sure that 
[fol. 23] I remember the question exactly.

The Court: Bead the question.
The Reporter: “Question: Mr. Barrett, what is the gen­

eral policy of McCrory Stores Inc. relative to segregated 
lunch counters?”

Mr. Nelson: I understand that the court sustains the 
objection.

The Court: I overrule the objection, but I  won’t permit 
or rather I want you to limit your question as to the policy 
as it relates to the store in this jurisdiction. There may 
be a national policy, but how can it effect this store, in 
this city in its operations. Ask him what the policy is of 
this store and then it might lead to the national policy.

Mr. Nelson: Before I get off the question, the purpose 
of that question is the local policy is dependent on the 
national policy. It was strictly for convenience.

The Court: I come back to the same proposition. Ask 
him about the local policy and see if there is any necessity 
to go into the national policy.

Mr. Nelson: Respectfully object and reserve a bill of 
exceptions making part of the bill, the question, the court’s 
ruling and the comments of the court.

The Court: Let the record show that the ruling of the 
court is that your general question, that I am limiting you 
at this time—I overruled the objection of the state, but 
suggested that you confine yourself as to the policy that 
effected the local store. It may be that after this witness 
[fol. 24] answers that I may allow you to go into the



21

national policy, but at this time I am not interested in the 
national policy.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett, what is the policy of McCrory’s relative 

to segregation of lunch counters here in New Orleans?
A. The policy is determined by local tradition, law and 

custom, as interpreted by me.

By the Court:
Q. Who makes that decision?
A. Interpreted by me.
Q. By you?
A. Yes sir.

Examination (resumed).

By Mr. Nelson:
Q. Who gives—who sets the standard by which you are 

to judge and what you base your decision on, that comes 
from tlje national office?

A. I am appointed store manager of this store in this 
city.

By the Court:
Q. He wants to know is does the national office of your 

concern permit you to determine who, are rather how, you 
should operate that particular store in connection with 
the tradition, laws and customs of the community in which 
the store is located?

A. I do. I would answer yes.

By Mr. Nelson:
Q. Have you ever been employed in any McCrory’s 

store that was desegregated?
A. No I haven’t.



22

Q. Do you know the procedure McCrory’s follows before 
they desegregate any particular lunch counter in any par­
ticular town?

Mr. Zibilich: I object Your Honor. We are only in­
terested in what is here.

The Court: Objection sustained.
[fob 25] Mr. Nelson: Reserve a bill making the question, 
answer and ruling of the court part of the bill.

The Court: I want the record again to show, so there 
will be no confusion. My appreciation of this gentleman’s 
response was that locally he had the right, he was per­
mitted, that he established the policy of the store based 
upon custom, law and—what was the word?

A. Tradition.
—tradition. The next question was whether or not he had 
that power from a national standpoint to determine for 
himself here how he should operate the store and he stated 
he had. We are not interested in what happened in Con­
necticut or any other place.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett, the management of McCrory’s Inc., have 

the authority to desegregate these counters, overruling your 
personal opinion—

Mr. Zibilich: Object Your Honor.
The Court: The objection is well taken.
Mr. Nelson: Reserve a bill of exception making the ques­

tion and the ruling of the court part of the bill.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett, have you sir in the last 30 days to 60 

days entered into any conference with other department 
store managers here in New Orleans relative to sit-in prob­
lems?

A. I don’t know what you mean by conferences.



23

Q. Discussions with, them?
A. We have spoken of it, yes.
Q. Have you discussed methods and means to handle 

[fol. 26] these situations if they arise in any particular de­
partment store?

Mr. Zibilich: Renew my original objection.
The Court: The objection is well taken. I won’t permit 

you to go any further. You can dictate into the record 
what you want to ask of this witness.

Mr. Nelson: Respectfully object and reserve a bill of 
exceptions making the question, the objection and the ruling 
of the court as part of the bill.

Mr. Nelson: The purpose of this Your Honor is a ques­
tion of conformity with state policy.

The Court: The man already said that he had the right 
to determine the policy based on tradition, custom and the 
laws of the community. Is that going to affect me in the 
slightest that he had a meeting with the manager of D. H. 
Holmes or Godchaux or anybody else, and I don’t see the 
relevancy of it at all. You have established the policy of 
this store and the policy nationally dictated giving him 
the discretion. What more do you want?

By Mr. Nelson:
Q. Mr. Barrett, have you ever met with members of the 

New Orleans Police Department and discussed problems 
of sit-in demonstrations and how you or how they should 
be handled if they arise in your store?

Mr. Zibilich: Object.
The Court: Same ruling.
Mr. Nelson: Respectfully object and reserve a hill of 

exception, making the question, the objection and the ruling 
of the court part of the bill.

[fol. 27] By Mr. Nelson:
Q. Now Mr. Barrett, would you kindly tell the court the 

plan or procedure that your store uses here in the city 
when sit-in demonstrations take place?



24

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: Respectfully object and reserve a bill of 

exception making the question, objection and the ruling 
of the court part of the bill.

Examination (resumed).

By Mr. Nelson:
Q. Do you have a plan that your employees are aware 

of which is to go into effect if there is a sit-in demonstra­
tion in your store ?

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: Reserve a bill making the question, ob­

jection and ruling of the court part of the bill.

Examination (resumed).

By Mr. Nelson:
Q. Now in your sit-in demonstration, when it took place 

in your store, it involved some Negroes did it not?
A. Yes sir.
Q. And I ’m talking now about the sit-in demonstration 

that took place on September 17th?
A. Yes sir.
Q. Were you in the store?
A. Yes sir.
Q. Now there was also one white person involved in this 

was there not?
A. Yes sir.
Q. If these persons would have been white all of them, 

[fol. 28] would they have been given service at that par­
ticular lunch counter on that particular day?

Mr. Zibilich: Objection.
The Court: The objection is well taken.
Mr. Nelson: Reserve a bill making the objection, the 

question, and the ruling of the court part of the bill.



25

Examination (resumed).

By Mr. Nelson:
Q. Did these people that came into your store on the 

17th, of September, involved in the sit-in demonstration, 
were they well dressed?

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: Same bill of exception, making the question, 

objection and ruling of the court part of the hill.
The Court: Might I say again to explain my ruling. As 

long as this gentleman had the discretion that he admitted 
he had, both locally as well as the approval of his national 
organization, the question then becomes a question of law, 
whether that discretion that he said he had, without regard 
to how he used it, if he had that discretion and had a right 
to use it, out of the window goes the rest. If he didn’t have 
it because of the 14th Amendment to the Constitution or 
any other amendment, your point of law is good then.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett, I understand you exercise that discre­

tion and it conforms to state policy and practice and cus­
tom in this area, is that right sir?

A. Yes sir.

[fol. 29] Examination (resumed).

By Mr. Nelson:
Q. And if the state policy or practice would be different 

you would exercise your discretion in a different manner?
Mr. Zibilich: Objection.
The Court: Objection sustained. If he had that dis­

cretion he had a right to change it at any time, if he had that 
right. You have proved that abundantly.



26

Mr. Nelson: Reserve a bill of exception, making the ques­
tion, the objection, and the ruling of the court part of the 
bill.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett, if there was no custom of segregated 

lunch counters or no state policy, the general atmosphere 
would be different, would you allow Negroes to eat at white 
lunch counters f

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: The same bill of exception.
I have no further questions.

Cross examination.

By Mr. Zibilich:
Q. Mr. Barrett, are you a police officer?
A. No sir.
Q. I have no other questions.

[fol. 30] Mr. Nelson: Your Honor, in connection with this 
case I would like to offer into evidence, I believe that the 
court can take judicial notice, but out of an abundance of 
caution I would like to offer the following:

House bills of the Louisiana Legislature of 1960, House 
bills 343 through 366, which bills were all introduced by 
Representatives Fields, Lymon and Triche and to be specific 
Numbers 343, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 
57, 58, 59, 360, 61, 62, 63, 64, 65, 66. All of which bills did 
not pass, but they are in the Journal, Legislature Journal 
and I make them part of my record.

Mr. Zibilich: No objection.
Mr. Nelson: And I ’m sure that the court can take judicial 

notice of these.
The Court: Those that passed I am sure, but the others 

T don’t know.



27

Mr. Nelson: Like to make part of the record those specific 
bills in question.

The Court: Let it be filed.
Mr. Nelson: Specifically the Court can take judicial cog­

nizance of the Acts setting up the Louisiana State Sov­
ereignty Commission and what their policy and procedures 
have been, and I am sure that the Court can take judicial 
notice of that but I point it out to the court specifically.

The Court: You may offer or call to the court’s attention 
the things you think are important.
[fol. 31] Mr. Nelson: One last thing. The house bills, 
the ones that were specifically passed, which are in the 
advance sheets of the West Publication and they are acts, 
—it is not necessary to go into them by number, but—

The Court: If you have the numbers give them.
Mr. Nelson: Acts 69, 73, 77, 78, 79, 70, 76, 81 and 68. 

Those are the acts, which amend the criminal statutes, 
relative we submit to the sit-in demonstrations and that is 
our case.

The Court: That concludes your evidence.
Proceed to the arguments.
Mr. Nelson: I  submit it.
Mr. Zibilich: State will submit it.
The Court: Let the minute entry show that the matter on 

the motion to quash has been submitted.
The defendants are discharged on their bonds until again 

notified.



I n the Criminal D istrict Court 

P arish of Orleans

28

[fol. 32]

S tate of L ouisiana 

versus
S idney L. Goldfinch, J r., et al.

J udgment on Motion to Quash— November 28, 1960
The defendants, Rudolph Lombard, a colored male, 

Oretha Castle, a colored female, Cecil Carter, Jr., a colored 
male, and Sydney L. Goldfinch, Jr., a white male, are 
jointly charged in a bill of information which reads as 
follows:

“ * * * that on the 17th of September, 1960, each did wil­
fully, unlawfully and intentionally take temporary 
possession of the lunch counter and restaurant of 
McCrory’s Store, a corporation authorized to do busi­
ness in the State of Louisiana, located at 1005 Canal 
Street, and did wilfully, unlawfully and intentionally 
remain in and at the lunch counter and restaurant in 
said place of business after Wendell Barrett the man­
ager, a person in charge of said business, had ordered 
the said Sydney Langston Goldfinch, Jr., Rudolph 
Joseph Lombard, Oretha Castle and Cecil Winston 
Carter, Jr., to leave the premises of said lunch counter 
and restaurant, and to desist from the temporary pos­
session of same, contrary, etc.”

The particular statute under which defendants are 
charged is L.S.A.-R.S. 14:59 (6) which reads as follows:

“Criminal mischief is the intentional performance 
of any of the following acts: * * *

“ (6) taking temporary possession of any part or 
parts of a place of business, or remaining in a place of



29

business after the person in charge of said business or 
portion of such business has ordered such person to 
leave the premises and to desist from the temporary 
possession of any part or parts of such business.”

The defendants moved the Court to quash the bill of in­
formation.

As cause for quashing the bill, defendants alleged “that 
movers were deprived of the due process of law and equal 
protection of law guaranteed by the Constitution and laws 
of the State of Louisiana and of the United States of 
America as follows

[fol. 33] “ (1) That the statutes under which the de­
fendants are charged are unconstitutional and in 
contravention of the Fourteenth Amendment of the 
Constitution of the United States of America, and in 
contravention of the Constitution of the State of 
Louisiana, in that they were enacted for the specific 
purpose and intent to implement and further the states 
policy of enforced segregation of races.’

“ (2) That the said defendants are being deprived of 
their rights under the “equal protection and due 
process” clauses of both the Constitution of Louisiana 
and of the United States of America in that the said 
laws under which the bill of Information is being en­
forced against them arbitrarily, capriciously and dis- 
criminately, in that it is being applied and admin­
istered unjustly and only against persons of the Negro 
race and/or white persons who act in concert with 
members of the Negro race.’

“ (3) That the statutes under which the prosecution is 
based and the Bill of Information founded thereon, are 
both so vague, indefinite and uncertain as not to estab­
lish an ascertainable standard of guilt.’

“ (4) That the statutes under which the prosecution is 
based, exceed the police power of the state in that they 
have no real, substantial or rational relation to the 
public safety, health, morals, or general welfare, but



30

have for their purpose and object, governmentally 
sponsored and enforced separation of races, thus, deny­
ing the defendants their rights under the first, thir­
teenth and fourteenth Amendment to the United States 
Constitution and art. I Section 2 of the Louisiana 
Constitution.’

“ (5) That the bill of information on which the prosecu­
tion is based, does nothing more than set forth a con­
clusion of law, and does not state with certainty and 
sufficient clarity the nature of the accusation.’

“ (6) That the statutes deprive your defendants of equal 
protection of the law in that it excludes from its pro­
visions a certain class of citizen, namely those who are 
at the time active with others in furtherance of certain 
union activities.’

“ (7) That the refusal to give service because of race, 
the arrest and subsequent charge are all unconstitu­
tional acts in violation of the Fourteenth Amendment 
of the United States Constitution in that the act of 
the Company’s representative was not the free will act 
of a private citizen but rather an act which was en­
couraged, fostered and promoted by state authority in 
support of a custom and policy of enforced segregation 
of races at lunch counters.’

“ (8) That the arrest, charge and prosecution of defen­
dants are unconstitutional, in that it is the result of 
state and Municipal action, the practical effect of 
which is to encourage and foster discrimination by 
private parties.”

In support of their motion to quash, the defendants 
offered the testimony of the following named witnesses, 
deLesseps S. Morrison, Mayor of the City of New Orleans, 
Joseph I. Giarrusso, Superintendent of Police, and Wendell 
[fol. 34] Barrett, Manager of McCrory’s 5 and 10 Cents 
Store.



31

The Mayor testified in substance as follows:
That the Superintendent of Police serves under his di­

rection; that he and the City Government “set the lines 
or direction of policy to the police department”.

That a statement appearing in the Times-Picayune dated 
September 13, 1960, page 7 of Section 1, was an accurate 
report of a statement issued by him following the initial 
“sit-in” and follow up demonstration at the F. W. Wool- 
worth Store on September 9, 1960.

The essence of the Mayor’s statement filed in evidence 
was, that he had directed the superintendent of police not 
to permit any additional sit-in demonstrations or so-called 
peaceful picketing outside retail stores by sit-in dem­
onstrators or their sympathizers; that it was his deter­
mination that the community interest, the public safety, 
and the economic welfare of the city required that such 
demonstrations cease and that they be prohibited by the 
police department.

The Mayor further testified:
That he did not know of any places in the City of New 

Orleans, where whites and negroes were served at the 
same lunch counter.

The Superintendent of Police identified as accurate a 
statement of his appearing in the Times-Picayune, Page 
18, Section 1, dated September 10, 1960; that his reason 
for issuing the statement was that a recurrence of the sit-in 
demonstration as had occurred at the Woolworth Store 
on September 9, 1960, would provoke disorder in the 
community.

In his statement, the Superintendent of Police, made 
known that his department was prepared to take prompt 
and effective action against any person or group who 
disturbed the peace or created disorders on public or 
private property. He also exhorted the parents of both 
white and negro students who participated in the Wool- 
worth Store “sit-in” demonstration to urge upon these 
young people that such actions were not in the community 
interest; etc.
[fob 35] He further testified that as a resident of the 
City of New Orleans and as a member of the police de-



32

partment for 15 years, he did not know of any public 
establishment that catered to both white and negro at the 
same lunch counter.

Mr. Wendell Barrett testified, that he was and had been 
the Manager of McCrory’s 5 and 10 Cents Store in the 
City of New Orleans for about 3 years; that the store was 
made up of individual departments, and catered to the 
general public.

That the policy of McCrory’s national organization as 
to segregated lunch counters, was to permit the local man­
ager discretion to determine same, consideration being had 
for local tradition, customs and law, as interpreted by 
the local manager; that in conformity with this policy, 
he determined whether lunch counters in the local Mc­
Crory’s store would be segregated or not.

That on September 17th., 1960, there was a “sit-in” dem­
onstration in the local store of McCrory’s, involving one 
white man and some negroes; that he was in the store at 
the time.

At the conclusion of the testimony of this witness, the 
defendants offered in evidence, “House bills of the Loui­
siana Legislature of 1960, 343 through 366, which bills 
were all introduced by Representatives Fields, Lehrman 
and Triche, and to be specific Numbers 343, 44, 45, 46, 
47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 360, 61, 
62, 63, 64, 65, 66. All of which bills did not pass, but 
they are in the Journal. Also introduced and received 
in evidence were Acts 69, 73, 77, 78, 79, 70, 76, 81 and 68.

The motion to quash was submitted without argument.
A consideration of defendants’ motion to quash, as well 

as the factual presentation on the hearing thereof, dis­
closes defendants’ position to be, that the enactment of 
L.S.A.-R.S. 14:59(6) by the Louisiana Legislature of 1960, 
was part of a “package deal”, wherein, and with specific 
[fol. 36] purpose and intent, that body sought to implement 
and further the state’s policy of enforced segregation of 
the races.

In addition, the same pleading and factual presentation, 
was offered by defendants’ to support their contention, 
that L.S.A.-R.S. 14:59(6), was enforced against them ar­
bitrarily, capriciously and discriminately in that it was be-



33

ing applied and administered unjustly and illegally, and 
only against persons of the negro race, and/or white per­
sons who acted in concert with members of the Negro race.

The courts have universally subscribed to the doctrine 
contained in the following citations:

Presumptions and Construction in Favor of Constitutionality
“The constitutionality of every statute is presumed, 

and it is the duty of the court to uphold a statute 
wherever possible and every consideration of public 
need and public policy upon which Legislature could 
rationally have based legislation should be weighed by 
the court, and, if statute is not clearly arbitrary, un­
reasonable and capricious it should be upheld as con­
stitutional.”

State vs. Rones, 67 So. 2d. 99, 223 La. 839.
Michon vs. La. State Board of Optometry Examiners, 

121 So. 2d. 565.
“The constitutionality of a statute is presumed and 

the burden of proof is on the litigant, who asserts to 
the contrary, to point out with utmost clarity wherein 
the constitution of the state or nation has been of­
fended by the terms of the statute attacked.”

Olivedell Planting Co. v. Town of Lake Providence, 
47 So. 2d. 23, 217 La. 621.

“Presumption is in favor of constitutionality of a 
statute, and statute will not be adjudged invalid un­
less its unconstitutionality is clear, complete and un­
mistakable.”

State ex rel Porterie v. Grosjean, 161 So. 871, 182 
La. 298.

“The courts will not declare an act of the legis­
lature unconstitutional unless it is shown that it clearly 
violates terms of articles of constitution.”

Jones v. State Board of Ed. 53 So. 2d. 792, 219 
La. 630.

[fol. 37] “A legislative act is presumed to be legal 
until it is shown that it is manifestly unconstitutional,



34

and all doubts as to the validity are resolved in favor 
its constitutionality.”

“The rule that a legislative act is presumed to be 
legal until it is shown to be manifestly unconstitutional 
is strictly observed where legislature has enacted a 
law in exercise of its police powers.”

Board of Barber Examiners of La. v. Parker, 182 
So. 485, 190 La. 314.

“Where a statute is attacked for discrimination or 
unreasonable classification doubts are resolved in its 
favor and it is presumed that the Legislature acts 
from proper motives in classifying for legislative pur­
poses, and its classification will not be disturbed unless 
it is manifestly arbitrary and invalid.”

State vs. Winchall & Rosenthal, 86 So. 781, 147 La. 
781, Writ of Error dismissed (1922). Winchall & 
Rosenthal of State Louisiana, 42 S. Ct. 313, 258 
U. S. 605, 66 L. Ed. 786.

“In testing validity of a statute the good faith on 
part of Legislature is always presumed.”

State vs. Saia, 33 So. 2d. 665, 212 La. 868.
“There is strong presumption Legislature under­

stands and appreciates needs of people, and that its 
discriminations are based on adequate grounds.”

Pestervand v. Lester, 130 So. 635, 15 La. App. 159.
“A statute involving governmental matters will be 

construed more liberally in favor of its constitution­
ality than one affecting private interests.”

State ex rel LaBauve v. Mitchel, 46 So. 430, 121 
La. 374.

“State is not presumed to act arbitrarily in exer­
cising police power.”

State ex rel Porterie, Atty. Gen. v. Walmsley, 162 
So. 826, 183 La. 139, Appeal dismissed Board 
of Liquidation v. Board of Com’rs. of Port of 
New Orleans, 56 S. Ct. 141, 296 U. S. 540, 80 
L. Ed. 384, rehearing denied Board of Liquida­
tion, City Debt of New Orleans v. Board of Comrs.



35

of Port of New Orleans, 56 S. Ct. 246, 296, U. S. 
663, 80 L. Ed. 473.

“Where a law is enacted under exercise or pretended 
exercise of police power and appears upon its face 
to be reasonable, burden is upon party assailing such 
law to establish that its provisions are so arbitrarily 
and unreasonable as to bring it within prohibition of 
Fourteenth Amendment, U.S.C.A. Const. Amend. 14”.

State vs. Saia, 33 So. 2d. 665, 212 La. 868.
[fol. 38] “Act of Legislature is presumed to be legal, 
and the judiciary is without right to declare it un­
constitutional unless that is manifest, and such rule 
is strictly observed in cases involving laws enacted 
in the exercise of the state’s police power.”

Schwegmann Bros. v. Louisiana Bd. of Alcohol 
Beverage Control, 43 So. 2d. 248, 216 La. 148, 
14 A. L. R. 2d. 680.

L.S.A.-R.S. 14:59 (6) Under Which the Prosecution Is
Based and the Bill of Information Founded Thereon,
Are So Vague, Indefinite and Uncertain as Not to
Establish an Ascertainable Standard of Guilt?

Defendants’ above stated complaint is without merit.
L.S.A.-R.S. 14:59 (6) under which defendants are 

charged reads as follows:
“Criminal mischief is the intentional performance 

of any of the following acts: * * *
(6) “Taking temporary possession of any part or 

parts of a place of business, or remaining in a place of 
business after the person in charge of said business or 
portion of such business has ordei’ed such person to 
leave the premises and to desist from the temporary 
possession of any part or parts of such business.”

The bill of information alleges:
“ * * * that on the 17th. of September, 1960, each did 

wilfully, unlawfully and intentionally take temporary 
possession of the lunch counter and restaurant of



36

McCrory’s Store, a corporation authorized to do busi­
ness in the State of Louisiana, located at 1005 Canal 
Street, and did wilfully, unlawfully and intentionally 
remain in and at the lunch counter and restaurant in 
said place of business after Wendell Barrett the man­
ager, a person in charge of said business, had ordered 
the said Sydney Langston Goldfinch, Jr., Rudolph 
Joseph Lombard, Oretha Castle and Cecil Winston 
Carter, Jr., to leave the premises of said lunch counter 
and restaurant and to desist from the temporary pos­
session of same, contrary, etc.”

From the foregoing it will be seen that L.S.A.-R.S. 
14:59 (6) as well as the bill of information filed thereunder, 
meet the constitutional rule governing the situation.

[fol. 39] “When the meaning of a statute appears 
doubtful it is well recognized that we should seek the 
discovery of the legislative intent. However, when the 
language of a statute is plain and unambiguous and 
conveys a clear and definite meaning, there is no need 
for construction.”

State v. Marsh, et al., 96 So. 2d. 643, 233 La. 388.
State v. Arkansas Louisiana Gas Co., 78 So. 2d. 

825, 227 La. 179.
“Meaning of statute must be sought in the language 

employed, and if such language be plain it is the 
duty of courts to enforce the law as written.”

State ex rel LeBlanc v. Democratic Central Com­
mittee, 86 So. 2d. 192, 229 La. 556.

Texas Co. v. Cooper, 107 So. 2d. 676, 236 La. 380.
Beta Xi Chapter, etc. v. City of N. 0., 137 So. 204, 

18 La. App. 130.
Ramey v. Cudahy Packing Co., 200 So. 333.
“Statute, which describes indecent behaviour with 

juveniles as commission by anyone over 17, of any lewd 
or lascivious act upon person or in presence of any 
child under age of 17, with intention of arousing or 
gratifying sexual desires of either person, which states 
that lack of knowledge of child’s age shall not be a



37

defense, and which provides penalty therefor, suf­
ficiently describes acts which constitute violation of 
statute and therefore, is constitutional. L.S.A.-R.S. 
14:81.”

State v. Milford, 73 So. 2d. 778, 225 La. 611.
State v. Saibold, 213 La. 415, 34 So. 2d. 909.
State v. Prejean, 216 La. 1072, 45 So. 2d. 627.
“The statute defining the crime of simple escape 

from ‘lawful custody’ of official of state penitentiary or 
from any ‘place where lawfully detained’ uses the 
quoted words in their common or ordinary meanings 
and is not violative of state or federal constitutions in 
failing to define the terms. L.S.A.-R.S. 14:110, L.S.A.- 
Const. Art. 1, Sec. 10; U.S.C.A.-Const. Amend. 14.”

State v. Marsh, 96 So. 2d. 643, 233 La. 388.

L.S.A.-R.S. 15:227 provides:
“The indictment must state every fact and circum­

stance necessary to constitute the offense, but it need 
do no more, and it is immaterial whether the language 
of the statute creating the offense, or words un­
equivocally conveying the meaning of the statute is 
used.”

“Information charging defendant violated a specific 
statute in that he entered without authority a described 
structure, the property of a named person, with the 
intent to commit a theft therein, set forth each and 
every element of the crime of simple burglary and 
fully informed accused of the accusation of the nature 
[fol. 40] and cause of the accusation, and therefore, 
was sufficient.”

State v. McCrory, 112 So. 2d. 432, 237 La. 747.
“Where affidavit charged defendant with selling beer 

to minors under 18 years of age in the language of 
the statute, and set all the facts and circumstances 
surrounding the alleged offense, so that court was fully 
informed of the offense charged for the proper regula­
tion of evidence sought to be introduced, and the ac­
cused was informed of the nature and cause of the



38

accusation against her, and affidavit was sufficient to 
support a plea of former jeopardy, affidavit was suf­
ficient to charge offense.”

State v. Emmerson, 98 So. 2d. 225, 233 La. 885.
State v. Richardson, 56 So. 2d. 568, 220 La. 338.

L.S.A.-R.S. 14:59(6) upon which this prosecution is based 
is sufficient in its terms to notify all who may fall under 
its provisions as to what acts constitute a violation of the 
law, and the bill of information meets fully the require­
ments of the law.

The Bill of Information on Which the Prosecution Is Based, 
Does Nothing More Than Set Forth a Conclusion of 
Law, and Does Not State With Certainty and Sufficient 
Clarity the Nature of the Accusation?

There is no merit to this contention.
As has been heretofore shown, the bill of information 

states “facts and circumstances” in compliance with the 
Constitutional mandate, L.S.A.-R.S. 15:227, and the deci­
sions of the Supreme Court. The words used in describing 
the offense are those of L.S.A.-R.S. 14:59(6), and are not 
conclusions of law by pleader.

“Information for taking excess amount of gas from 
well held not to state mere conclusions, where showing 
amount allowed and amount taken. Act No. 252, of 
1924, sec. 4, subd. 2.”

State v. Carson Carbon Co., I l l  So. 162, 162 La. 781. 
[fob 41]
L.S.A.-R.S. 14:59 (6) Deprives Defendants of Equal Pro­

tection of the Law in That It Excludes From Its Pro­
visions of a Certain Class of Citizens, Namely Those 
Who at the Time Are Active With Others in Furtherance 
of Certain Union (Labor) Activities?

The court is unable to relate this contention to the pro­
visions of L.S.A.-R.S. 14:59(6), or the bill of information 
filed thereunder.

No where in the statute is any reference made to labor 
union activities, nor does the statute make any exceptions



39

or exclusions as to any persons or class of citizens, labor 
unions, or otherwise. It is probable that defendants have 
erroneously confused these proceedings with a charge under 
L.S.A.-R.S. 14:103 (Disturbance of the Peace.)

The Defendants Are Being Deprived of Their Bights Under 
the “Equal Protection and Due Process” Clauses of 
Both the Constitution of Louisiana and of the United 
States of America, in That the Said Law Under Which 
the Bill of Information Is Founded Is Being Enforced 
Against Them Arbitrarily, Capriciously and Discrimi- 
nately, in That It Is Being Applied and Administered 
Unjustly and Illegally, and Only Against Persons of 
the Negro Race and/or White Persons Who Act in 
Concert With Members of the Negro Race?

The prosecution of defendants is in the name of the State 
of Louisiana, through the District Attorney for the Parish 
of Orleans. This officer is vested with absolute discretion 
as is provided by L.S.A.-R.S. 15:17.

It reads as follows:
“The district attorney shall have entire charge and 

control of every criminal prosecution instituted or 
pending in any parish wherein he is district attorney, 
and shall determine whom, when, and how he shall 
prosecute, etc.”

In the case of State v. Jourdain, 74 So. 2d. 203, 225 La. 
1030, it was claimed in a motion to quash that the narcotic 
law was being administered by the New Orleans Police 
Department and the District Attorney’s Office in a manner 
calculated to deprive the defendant of the equal protection 
[fol. 42] of the law, and in violation of Section 1 of the 
14th. Amendment of the Constitution of the United States, 
in that these officials were actively prosecuting the infrac­
tion in this case, whereas they refrained from prosecuting 
other violations of the narcotic act of a more serious nature.

In sustaining the trial court’s ruling, Your Honors said:
“The claim is untenable. Seemingly, it is the thought 

of counsel that the failure of the Police Department 
and the District Attorney to offer appellant immunity,



40

if he would become an informer, operates as a pur­
poseful discrimination against him and thus denies 
him an equal protection of the law. But, if we con­
ceded that the police and the district attorney have 
failed to prosecute law violators who have agreed to 
become informers, this does not either constitute an 
unlawful administration of the statute or evidence an 
intentional or purposeful discrimination against ap­
pellant. The matter of the prosecution of any criminal 
case is within the entire control of the district attorney 
(R.S. 15:17) and the fact that not every violator has 
been prosecuted is of no concern of appellant, in the 
absence of an allegation that he is a member of a class 
being prosecuted solely because of race, religion, color 
or the like, or that he alone is the only person who has 
been prosecuted under the statute. Without such 
charges his claim cannot come within that class of 
unconstitutional discrimination which was found to 
exist in Yick Wo v. Hopkins, 118 U. S. 356, 30 L. Ed. 
220, 6 S. Ct. 1064 and McFarland v. American Sugar 
Ref. Co., 241 U. S. 79, 60 L. Ed. 899, 36 S. Ct. 498. 
See Snowden v. Hughes, 321 U. S. 1, 88 L. Ed. 497, 
64 S. Ct. 397, and cases there cited.”

[fol. 43] In the case of City of New Orleans versus Dan
Levy, et. al., 233 La. 844, 98 So. 2d. 210, Justice McCaleb
in concurring stated:

“I cannot agree that the City of New Orleans and 
the Vieux Carre Commission are or have been applying 
the ordinances involved with “an evil eye and an un­
equal hand, so as to practically make unjust and illegal 
discriminations between persons in similar circum­
stances” (see Yick Wo v. Hopkins, 118 U. S. 356, 6
S. Ct. 1064, 1073, 30 L. Ed. 220) and have thus denied 
to appellant an equal protection of the law in violation 
of the Fourteenth Amendment to the United States 
Constitution.’

The sum and substance of appellant’s charges is 
that his constitutional rights have been violated since 
many other similar or more severe violations of the



41

city ordinances exist and that the city officials have 
permitted such violations by not taking any action to 
enforce the law. These complaints, even if established, 
would not be sufficient in my opinion to constitute an 
unconstitutional denial of equal protection to appellant 
as it is the well-settled rule of the Supreme Court of 
the United States and all other state courts of last 
resort that the constitutional prohibition embodied in 
the equal protection clause applies only to discrimina­
tions which are shown to be of an intentional, purpose­
ful or systematic nature. Snowden v. Hughes, 321 
U. S. 1, 9, 64 S. Ct. 397, 88 L. Ed. 497, 503; Charles­
ton Federal Savings & Loan Ass’n. v. Alderson, 324 
U. S. 182, 65 S. Ct. 624, 89 L. Ed. 857; City of Omaha 
v. Lewis & Smith Drug Co., 156 Neb. 650, 57 N. W. 
2d. 269; Zorach v. Clauson, 303 N. Y. 161, 100 N. E. 
2d. 463; 12 Am. Jur. Section 566 and State v. Ander­
son, 206 La. 986, 20 So. 2d. 288.

In State v. Anderson, this court quoted at length 
from the leading case of Snowden v. Hughes, supra, 
(321 U. S. 1, 9, 64 S. Ct. 401) where the Supreme 
Court of the United States expressed at some length 
the criteria to be used in determining whether an 
ordinance or statute, which is claimed to have been 
unequally administered, transgresses constitutional 
rights. The Supreme Court said:

“The unlawful administration by state officers of 
a state statute fair on its face, resulting in its un­
equal application to those who are entitled to be 
treated alike, is not a denial of equal protection un­
less there is shown to be present in it an element of 
intentional or purposeful discrimination. This may 
appear on the face of the action taken with respect 
to a particular class or person, of McFarland v. Amer­
ican Sugar Refining Co., 241 U. S. 79, 86, 87, 36
S. Ct. 498, 501, 60 L. Ed. 899 (904), or it may only 
be shown by extrinsic evidence showing a discrim­
inatory design to favor one individual or class over 
another not to be inferred from the action itself, 
Yick Wo v. Hopkins, 118 U. S. 356, 373, 374, 6 S. Ct.



1064, 1072, 1073, 30 L. Ed. 220 (227, 228). But a 
discriminatory purpose is not presumed. Tarrance 
v. State of Florida, 188 U. S. 519, 520, 23 S. Ct. 
402, 403, 47 L. Ed. 572 (573); there must be a show­
ing of ‘clear and intentional discrimination’, Gundling 
v. City of Chicago, 177 U. S. 183, 186, 20 S. Ct. 
633, 635, 44 L. Ed. 725 (728); see Ah Sin v. Wittman, 
198 U. S. 500, 507, 508, 25 S. Ct. 756, 758, 759, 49 
L. Ed. 1142 (1145, 1146); Bailey v. State of Alabama, 
219 U. S. 219, 231, 31 S. Ct. 145, 147, 55 L. Ed. 191 
[fol. 44] (197). Thus the denial of equal protection by 
the exclusion of negroes from a jury may be shown 
by extrinsic evidence of a purposeful discriminatory 
administration of a statute fair on its face. Neal v. 
State of Delaware, 103 U. S. 370, 394, 397, 26 L. Ed. 
567 (573, 574); Norris v. State of Alabama, 294 U. S. 
587, 589k, 55 S. Ct. 579, 580, 79 L. Ed. 1074 (1076); 
Pierre v. State of Louisiana, 306 U. S. 354, 357, 59 
S. Ct. 536, 538, 83 L. Ed. 757 (759); Smith v. State 
of Texas, 311 U. S. 128, 130, 131, 61 S. Ct. 164, 165, 
85 L. Ed. 84 (86, 87); Hill v. State of Texas, 316 
U. S. 400, 404, 62 S. Ct. 1159, 1161, 86 L. Ed. 1559 
(1562). But a mere showing that negroes were not 
included in a particular jury is not enough; there 
must be a showing of actual discrimination because 
of race. State of Va. v. Rives, 100 U. S. 313, 322, 
323, 25 L. Ed. 667 (670, 671); Martin v. State of 
Texas, 200 IT. S. 316, 320, 321, 26 S. Ct. 338, 339, 
50 L. Ed. 497 (499); Thomas v. State of Texas, 212 
U. S. 278, 282, 29 S. Ct. 393, 394, 53 L. Ed. 512 
(514); cf. Williams v. State of Mississippi, 170 U. S. 
213, 225, 18 S. Ct. 583, 588, 42 L. Ed. 1012 (1016).

“Another familiar example is the failure of state 
taxing officials to assess property for taxation on a 
uniform standard of valuation as required by the as­
sessment laws. It is not enough to establish a denial 
of equal protection that some are assessed at a higher 
valuation than others. The difference must be due 
to a purposeful discrimination which may be evi­
denced, for example, by a systematic under-valuation



43

of the property of some taxpayers and a systematic 
over-valuation of the property of others, so that the 
practical effect of the official breach of the law is the 
same as though the discrimination were incorporated 
in and proclaimed by the statute. Coulter v. Louis­
ville & N. R. Co., 196, U. S. 599, 608, 609, 610, 25 
S. Ct. 342, 343, 344, 345, 49 L. Ed. 615 (617, 618); 
Chicago B & Q R Co. v. Babcock, 204 U. S. 585, 597, 
27 S. Ct. 326, 328, 51 L. Ed. 636 (640); Sunday Lake 
Iron Co. v. Wakefield Twp., 247 U. S. 350, 353, 38 
S. Ct. 495, 62 L. Ed. 1154 (1156); Southern R. Co. 
v. Watts, 260 U. S. 519, 526, 43 S. Ct. 192, 195, 67 
L. Ed. 375 (387). Such discrimination may also be 
shown to be purposeful, and hence a denial of equal 
protection, even though it is neither systematic nor 
long continued. Cf. McFarland v. American Sugar 
Refining Co. (241 U. S. 79, 36 S. Ct. 498, 60 L. Ed. 
899) supra.

“The lack of any allegations in the complaint here, 
tending to show a purposeful discrimination between 
persons or classes of persons is not supplied by the 
approbrious epithets ‘willful’ and ‘malicious’ * * * ” ”

[fol. 45] On rehearing in the Levy Case, Mr. Justice 
Simon, speaking for the Court said:

“In the instant case there is no proof that in the 
enforcement of the municipal zoning and Vieux Carre 
ordinances that the City acted with a deliberate dis­
criminatory design, intentionally favoring one individ­
ual or class over another. I t is well accepted that a 
discriminatory purpose is never presumed and that 
the enforcement of the laws by public authorities 
vested, as they are with a measure of discretion will, 
as a rule, be upheld.”

Applying the cases herein cited, to the proof adduced 
by defendants in support of their claim of unjust, illegal, 
and discriminatory administration of L.S.A.-R.S. 14:59 (6), 
defendants have failed to sustain their burden.

The claim is without merit.



44

L.S.A.-R.8. 14:59(6) Under Which the Defendants Are 
Charged Is Unconstitutional and in Contravention of 
the 14th Amendment of the Constitution of the United 
States, and in Contravention of the Constitution of 
Louisiana, in That It Was Enacted for the Specific 
Purpose and Intent to Implement and Further the 
State’s Policy of Enforced Segregation of Races?

This contention of defendants is without merit.
Certainly under its police power the legislature of the 

state was within its rights to enact L.S.A.-R.S. 14:59(6).
What motives may have prompted the enactment of the 

statute is of no concern of the courts. As long as the legis­
lature complied with the constitutional mandate concerning 
legislative powers and authority, this was all that was 
required.

“It has been uniformly held that every reasonable 
doubt should be resolved in favor of the constitu­
tionality of legislative acts. We said in State ex rel. 
Know v. Board of Supervisors of Grenada County, 
141 Miss. 701, 105 So. 541, in a case involving Section 
175 of the Mississippi Constitution, that if systems 
(acts) of the kind here involved are evil, or if they 
destroy local government in the counties and municipal­
ities, that is a question to be settled at the ballot 
boxes between the people and the Legislature. And 
whether the law is needed or not, or whether it is 
wise or not, cannot be settled here. Our functions 
are to decide whether the Legislature had the power 
to act in passing the law and not whether it ought 
to have acted in the manner it did. The court will 
uphold the constitution in the fullness of its protec­
tion, but it will not and cannot rightfully control the 
[fol. 46] discretion of the Legislature within the field 
assigned to it by the Constitution.”

State of Mississippi ex rel. Joe T. Patterson, At­
torney General v. Board of Supervisors of Prentiss 
County, Miss. 105 So. 2d. 154, (Mississippi)

“The state, in the brief of its counsel, argues: ‘If 
we assume that It. S. 58:131 et sequor must be fol-



45

lowed—then there can he no enforcement of the fish 
and game laws by the criminal courts. Only a $25 
penalty can be inflicted against a person who is ap­
prehended for wilfully killing a doe deer. Certainly 
this small ‘civil’ penalty will not deter willful game 
violators and our deer population will soon be deci­
mated. * * * ’ Whether the prescribed civil proceeding 
with its attendant penalty militates against adequate 
wild life protection is not for the courts’ determina­
tion. The question is one of policy which the law­
makers must resolve.”

State v. Coston, 232 La. 1019, 95 So. 2d. 641.
“We should also retain in our thinking the proposi­

tion that the regulation and control of the alcoholic 
beverage business is peculiarly a legislative function. 
In this connection, as in all similar situations, when 
the legislative branch of the government exercises a 
legislative power in the form of a duly enacted statute 
or ordinance it is not the function of a court to explore 
the wisdom or advisability of the enactment in order 
to bring its enforcement into question. To this end 
the limits of the court’s authority is to measure the 
validity of the legislative enactment by the require­
ments of the controlling law. If those standards are 
met the legislation should be upheld. Somlyo v. Schott, 
supra.”

State v. Cochran, 114 So. 2d. 797 (Fla.)
“In Morgan County v. Edmonson, 238 Ala. 522, 192 

So. 274, 276, we said:
‘It is of course a well settled rule that in deter­
mining the validity of an enactment, the judiciary 
will not inquire into the motives or reasons of the 
Legislature or the members thereof. 16 C.J.S., Con­
stitutional Law, pp. 154, p. 487. ‘The judicial de­
partment cannot control legislative discretion, nor 
inquire into the motives of legislators.’ City of 
Birmingham v. Henry, 234 Ala. 239, 139 So. 283. 
See also, State ex rel. Russum v. Jefferson County 
Commission, 224 Ala. 229, 139 So. 243; * * * ’



46

It is our solemn duty to uphold a law which has 
[fol. 47] received the sanction of the Legislature, un­
less we are convinced beyond a reasonable doubt of its 
unconstitutionality. Yielding v. State ex rel. Wilkin­
son, 232 Ala. 292, 167 So. 580.”

State v. Hester, 72 So. 2d. 61 (Ala.)
“Another factor which fortifies our view is th is: 

the act assaulted is a species of social legislation, that 
is, a field in which the legislative power is supreme 
unless some specific provision of organic law is trans­
gressed. Absent such transgression it is for the legis­
lature and not the courts to determine what is “un­
necessary, unreasonable, arbitrary and capricious”. 
Requiring hotels, motels, and other rooming houses to 
advertise full details of room charges if they exercise 
that medium is certainly a legislative prerogative with 
which the courts have no power to interfere. A legis­
lative finding that such a requirement is in the public 
interest concludes the matter.”

Adams v. Miami Beach Hotel Association, 77 So. 
2d. 465, (Fla.)

“Statute is not unconstitutional merely because it 
offers an opportunity for abuses.”

James v. Todd (Ala) 103 So. 2d. 19. Appeal dis­
missed 79 S. Ct. 288, 358 U.S. 206, 3 L. Ed. 2d. 
235.

“Validity of law must be determined by its terms 
and provisions, not manner in which it might be ad­
ministered, operated or enforced.”

Clark v. State (Miss) 152 So. 820.
“The state legislature is unrestricted, save by the 

state or federal constitution, and a statute passed 
by it, in the exercise of the powers, the language of 
which is plain, must be enforced, regardless of the 
evil to which it may lead.”

State v. Henry (Miss) 40 So. 152, 5 L.R.A. N. S. 
340.

“If the power exists in the legislative department 
to pass an act, the act must be upheld by the court,



47

even though, there may he a possibility of administra­
tion abuse.”

Stewart v. Mack (Fla) 66 So. 2d. 811.
“The gravamen of the offense denounced by section 

3403 is the entry by one upon the enclosed land or 
premises of another occupied by the owner or his 
employees after having been forbidden to enter, or 
not having been previously forbidden refusing to de­
part therefrom after warned to do so.”

#  #  *  #  #  *  #

“It  is contended that the statute is invalid because 
[fol. 48] it is apparent that its terms are for the pro­
tection of the lessor in the enjoyment of his property. 
Conceding that to be true, we find no reason for the 
deduction that the statute is therefore invalid. All 
statutes against trespass are primarily for the pro­
tection of the individual property owner, but they are 
also for the purpose of protecting society against 
breaches of the peace which might occur if the owner 
of the property is required to protect his rights by 
force of arms.”

Coleman, Sheriff v. State ex rel. Carver (Fla.) 161 
So. 89.

L.S.A.-R.S. 14:59(6)  Exceeds the Police Power of the 
State, in That It Has No Real, Substantial or Rational 
Relation to the Public Safety, Health, Morals, or Gen­
eral Welfare, Rut Has for Its Purpose and Object, 
Governmentally Sponsored and Enforced Separation 
of Races, Thus Denying Defendants Their Rights Un­
der the First, Thirteenth, and Fourteenth Amendments 
to the United States Constitution, and Article 1, Section 
2 of the Louisiana Constitutionf

The Refusal to Give Service Solely Because of Race, the 
Arrest and Subsequent Charge Are All Unconstitutional 
Acts in Violation of the 14th Amendment of the United 
States Constitution, in That the Act of the Company’s 
Representative Was Not the Free Will Act of a Private 
Individual, But Rather an Act Which Was Encouraged,



48

Fostered and Promoted by State Authority in Support 
of a Custom and Policy of Enforced Segregation of 
Race at Lunch Countersf

The Arrest, Charge and Prosecution of the Defendants 
Are Unconstitutional, in That It Is the Result of State 
and Municipal Action, the Practical Effect of Which Is 
to Encourage and Foster Discrimination by Private 
Parties?

The Court has grouped together for discussion the 
propositions hereinabove enumerated as they appear to be 
related to each other in the sum total of defendants com­
plaint of the unconstitutionality of L.S.A.-R.S. 14:59(6).

There is presently no anti-discrimination statute in Loui­
siana, Sections 3 and 4 of Title 4 of the Revised Statutes 
having been repealed by Act 194 of 1954. Nor is there 
any legislation compelling the segregation of the races 
in restaurants, or places where food is served.

As authority supporting the constitutionality of L.S.A.-
R.S. 14:59(6), the following cases are cited:
[fol. 49] In the case of State v. Clyburn, et. al., (N.C.) 
1958, 101 S. E. 2d. 295, the defendants, a group of Negroes 
led by a minister, entered a Durham, North Carolina, ice 
cream and sandwich shop which was separated by a parti­
tion into two parts marked “White” and “Colored”. They 
proceeded to the portion set apart for white patrons and 
asked to be served. Service was refused and the proprietor 
asked them to leave, or to move to the section marked 
“Colored”. The minister asserted religious and constitu­
tional bases for remaining. A city police officer placed them 
under arrest. The defendants were tried and convicted on 
warrants charging violation of state statutes which impose 
criminal penalties upon persons interfering with the posses­
sion of privately-held property. On appeal the Supreme 
Court of North Carolina affirmed the conviction. Finding 
no “state action” within the prohibition of the Fourteenth 
Amendment, the Court held that the Constitutional rights 
of defendants had not been infringed by refusing them ser­
vice or by their subsequent (sic)



49

In resolving the question, “Must a property owner en­
gaged in a private enterprise submit to the use of his 
property to others simply because they are members of a 
different race,” the Supreme Court of North Carolina said:

“The evidence shows the partitioning of the building 
and provision for serving members of the different 
races in differing portions of the building was the act 
of the owners of the building, operators of the estab­
lishment. Defendants claim that the separation by color 
for service is a violation of their rights guaranteed by 
the Fourteenth Amendment to the Constitution of the 
United States.”

“Our statutes, G. S. Para. 14-126 and 134, impose 
criminal penalties for interfering with the possession 
or right of possession of real estate privately held. 
These statutes place no limitation on the right of the 
person in possession to object to a disturbance of his 
actual or constructive possession. The possessor may 
accept or reject whomsoever he pleases and for what­
soever whim suits his fancy. When that possession is 
wrongfully disturbed it is a misdemeanor. The extent 
of punishment is dependent upon the character of the 
possession, actual or constructive, and the manner in 
which the trespass is committed. Race confers no 
prerogative on the intruder; nor does it impair his 
defense.

The Fourteenth Amendment to the Constitution of 
the United States created no new privileges. It merely 
[fol. 50] prohibited the abridgment of existing privi­
leges by state action and secured to all citizens the 
equal protection of the laws.

Speaking with respect to rights then asserted, com­
parable to rights presently claimed, Mr. Justice Brad­
ley, in the Civil Rights Cases, 109 U. S. 3, 3 S.Ct. 18, 21, 
27 L. Ed. 835, after quoting the first section of the 
Fourteenth Amendment, said: ‘I t is state action of a 
particular character that is prohibited. Individual in­
vasion of individual rights is not the subject-matter of 
the amendment. I t has a deeper and broader scope. It



50

nullifies and makes void all state legislation, and state 
action of every kind, which impairs the privileges and 
immunities of citizens of the United States, or which 
injures them in life, liberty or property without due 
process of law, or which denies to any of them the 
equal protection of the laws. It not only does this, but, 
in order that the national will, thus declared, may not 
be a mere brutum fulmen the last section of the amend­
ment invests congress with power to enforce it by ap­
propriate legislation. To enforce what? To enforce the 
prohibition. To adopt appropriate legislation for cor­
recting the effects of such prohibited state laws and 
state acts, and thus to render them effectually null, 
void and innocuous. This is the legislative power con­
ferred upon congress, and this is the whole of it. It 
does not invest congress with power to legislate upon 
subjects which are within the domain of state legisla­
tion ; but to provide modes of relief against state legis­
lation or state action, of the kind referred to. It does 
not authorize congress to create a code of municipal 
law for the regulation of private rights; but to provide 
modes of redress against the operation of state laws, 
and the action of state officers executive or judicial, 
when these are subversive of the fundamental rights 
specified in the amendment. Positive rights and privi­
leges are undoubtedly secured by the fourteenth amend­
ment; but they are secured by way of prohibition 
against state laws and state proceedings affecting those 
rights and i:>rivileges, and by power given to congress 
to legislate for the purpose of carrying such prohibi­
tion into effect; and such legislation must necessarily 
be predicated upon such supposed state laws or state 
proceedings, and be directed to the correction of their 
operation and effect.

In United States v. Harris, 106 U. S. 629, 1 S. Ct. 601, 
609, 27 L. Ed. 290. the Court, quoting from United 
States v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588 said: 
‘The fourteenth amendment prohibits a state from de­
priving any person of life, liberty, or property without 
due process of law, or from denying to any person the 
equal protection of the laws; but this provision does not



51

add anything to the rights of one citizen as against 
another. It simply furnishes an additional guaranty 
against any encroachment by the states upon the funda­
mental rights which belong to every citizen as a mem­
ber of society. The duty of protecting all its citizens 
in the enjoyment of an equality of rights was originally 
assumed by the states, and it remains there. The only 
obligation resting upon the United States is to see that 
the states do not deny the right. The power of the 
national government is limited to this guaranty.’

More than half a century after these cases were 
decided the Supreme Court of the United States said 
in Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. 
Ed. 1161, 3 A. L. R. 2d. 441: ‘Since the decision of this 
Court in the Civil Rights Cases, 1883, 109 U. S. 3, 3
S.CT. 18, 27 L. Ed. 835, the principle has become firmly 
embedded in our constitutional law that the action 
[fol. 51] inhibited by the first section of the Fourteenth 
Amendment is only such action as may fairly be said 
to be that of the States. That Amendment erects no 
shield against merely private conduct, however dis­
criminatory or wrongful.’ This interpretation has not 
been modified: Collins v. Hardyman, 341 U. S. 651, 71 
S. Ct. 937, 95 L. Ed. 1253; District of Columbia v. 
Thompson Co., 346 U.S. 100, 73 S. Ct. 1007, 97 L. Ed. 
1480; Williams v. Yellow Cab Co., 3 Cir. 200 F. 2d. 302, 
certiorari denied Dargan v. Yellow Cab Co., 346 U. S. 
840, 74 S. Ct. 52, 98 L. Ed. 361.

Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 87 
N. E. 2d. 541,14 A. L. R. 2d. 133, presented the right of 
a corporation, organized under the New York law to 
provide low cost housing, to select its tenants, with the 
right to reject on account of race, color, or religion. 
The New York Court of Appeals affirmed the right of 
the corporation to select its tenants. The Supreme 
Court of the United States denied certiorari, 339 U. S. 
981, 70 S. Ct. 1019, 94 L. Ed. 1385.

The right of an operator of a private enterprise to 
select the clientele he will serve and to make such 
selection based on color, if he so desires, has been re­
peatedly recognized by the appellate courts of this



52

nation. Madden v. Queens County Jockey Club, 269 
N. Y. 249, 72 N. E. 2d. 697, 1 A. L. R. 2d. 1160; Terrell 
Wells Swimming Pool v. Rodriguez Tex. Civ. App. 182 
S. W. 2d. 824; Booker v. Grand Rapids Medical College, 
156 Mich. 95, 120 N. W. 589, 24 L. R. A., N. S. 447; 
Younger v. Judah, 111 Mo. 303, 19 S. W. 1109; Groff v. 
Savage, 122 Wash. 194, 210 P. 374, De La Ysla v. Publix 
Theatres Corporation, 82 Utah 598, 26 P. 2d. 818; 
Brown v. Meyer Sanitary Milk Co., 150 Kan. 931, 96 
P. 2d. 651; Horn v. Illinois Cent. R. Co., 327 111. App. 
498, 64 N. E. 2d. 574; Coleman v. Middlestaff, 147 Cal. 
App. 2d. Supp. 833, 305 P. 2d. 1020; Fletcher v. Coney 
Island, 100 Ohio App. 259, 136 N. E. 2d. 344; Alpaugh 
v. Wolverton, 184 Va. 943, 36 S. E. 2d. 906. The owner- 
operator’s refusal to serve defendants, except in the 
portion of the building designated by him, impaired no 
rights of defendants.

The fact that the propietors of the ice cream parlor 
contributed to the support of local government and 
paid a license or privilege tax which license contained 
no restrictions as to whom the proprietors could serve 
cannot be construed to justify a trespass, nor is there 
merit in the suggestion that the complaint on which 
the warrant of arrest issued, signed by an officer 
charged with the duty of enforcing the laws, rather 
than by the injured party, constituted state action 
denying privileges guaranteed to the defendants by the 
Fourteenth Amendment. The crime charged was com­
mitted in the presence of the officer and after a respect­
ful request to desist. He had a right to arrest. G.S. 
Par. 15-41.

Screws v. United States, 325 U. S. 91, 65 S. Ct. 1031, 
85 L. Ed. 1368; and State v. Scoggin, 236 N. C. 19, 72 S.
E. 2d. 54, cited and relied upon by defendants, appel­
lants, to support their position, have no factual analogy 
to this case. Nothing said in those cases in any way 
supports the position taken by defendants in this case.

[fol. 52] In the case of Browning vs. Slenderella Systems 
of Seattle, (Wash.) (1959), 341 P. 2d. 859, two justices of 
the Supreme Court of Washington dissented in a ruling of



53

that court holding a reducing salon came within the purview 
of an Anti-Discrimination Statute of that State.

In this dissent it was said:
5 “Because respondent is a Negress, the Slenderella 
Systems of Seattle, a private enterprise, courteously 
refused to give her a free reducing treatment, as ad­
vertised. She thereupon became abusive and brought 
this civil action for the injury to her feelings caused 
by the racial discrimination.

This is the first such action in this state. In allowing 
respondent to maintain her action, the majority opinion 
has stricken down the constitutional right of all private 
individuals of every race to choose with whom they will 
deal and associate in their private affairs.

No sanction for this result can be found in the recent 
segregation cases in the United States supreme court 
involving Negro rights in public schools and public 
busses. These decisions were predicated upon section 
1 of the fourteenth amendment to the United States 
constitution, which reads:

‘All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens 
of the United States and of the State wherein they 
reside. No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens 
of the United S tates: nor shall any State deprive 
any person of life, liberty, or property, without due 
process of law; nor deny to any person within its 
jurisdiction the equal protection of the laws.” (Italics 
mine.)
In the pre-Warren era, the courts had held that the 

privileges of Negroes under the fourteenth amendment, 
supra, were not abridged if they had available to them 
public services and facilities of equal quality to those 
enjoyed by white people. The Warren antisegregation 
rule abandoned that standard and substituted the un- 
segregated enjoyment of public services and facilities 
as the sole test of Negro equality before the law in 
such public institutions.



54

The rights and privileges of the fourteenth amend­
ment, supra, as treated in the segregation decisions and 
as understood by everybody, related to public institu­
tions and public utilities for the obvious reason that no 
person, whether white, black, red, or yellow, has any 
right whatever to compel another to do business with 
him in his private affairs.

No public institution or public utility is involved in 
the instant case. The Slenderella enterprise was not 
established by law to serve a public purpose. It is not 
a public utility with monopoly prerogatives granted to 
it by franchise in exchange for an unqualified obligation 
to serve everyone alike. Its employees are not public 
servants or officers. It deals in private personal ser­
vices. Its business, like most service trades, is con­
ducted pursuant to informal contracts. The (sic) 
[fol. 53] is the consideration for the service. It is true 
the contracts are neither signed, sealed, nor reduced to 
writing. They are contracts, nevertheless, and, as such, 
must be voluntarily made and are then, and only then, 
mutually enforceable. Since either party can refuse to 
contract, the respondent had no more right to compel 
service than Slenderella had to compel her to patronize 
its business.

There is a clear distinction between the non-discrimi­
nation enjoined upon a public employee in the discharge 
of his official duties, which are prescribed by laws ap­
plicable to all, and his unlimited freedom of action in 
his private affairs. There is no analogy between a 
public housing project operated in the government’s 
proprietary capacity, wherein Negroes have equal 
rights, and a private home where there are no public 
rights whatever and into which even the King cannot 
enter.

No one is obliged to rent a room in one’s home; but, 
if one chooses to operate a boarding house therein, it 
can be done with a clientele selected according to the 
taste or even the whim of the landlord. This right of 
discrimination in private businesses is a constitutional 
one.



55

The ninth amendment of the United States constitu­
tion specifically provides:

‘The enumeration in the Constitution, of certain 
rights shall not be construed to deny or disparage 
others retained by the people.’
All persons familiar with the rights of English speak­

ing peoples know that their liberty inheres in the scope 
of the individual’s right to make uncoerced choices as 
as to what he will think and say; to what religion he 
will adhere; what occupation he will choose; where, 
when, how and for whom he will work, and generally 
to be free to make his OAvn decisions and chooses his 
course of action in his private civil affairs. These con­
stitutional rights of lawabiding citizens are the very 
essence of American liberties. For instance, they far 
outweigh in importance the fifth amendment to the 
United States constitution which excuses criminals 
from giving evidence against themselves. It was, in 
fact, an afterthought. Our constitutional forefathers 
were chiefly concerned with the rights of honest men. 
They would have specified their rights with the same 
particularity that they did in regard to criminals if 
they had foreseen that courts would become unfamiliar 
with them.

Cash registers ring for a Negro’s as well as for a 
white man’s money. Practically all American busi­
nesses, excepting a few having social overtones or in­
volving personal services, actively seek Negro patron­
age for that reason. The few that do not serve Negroes 
adopt that policy either because their clientele insist 
upon exclusiveness, or because of the reluctance of 
employees to render intimate personal service to 
Negroes. Both the clientele and the business operator 
have a constitutional right to discriminate in their 
private affairs upon any conceivable basis. The right 
to exclusiveness, like the right to privacy, is essential 
to freedom. No one is legally aggrieved by its exercise.

[fol. 54] No sanction for destroying our most pre­
cious heritage can be found in the criminal statute 
cited by the majority opinion. I t does not purport to



50

create a civil cause of action. The statute refers to 
“places of public resort”. (Italics mine). This phrase 
is without constitutional or legal significance. It has 
no magic to convert a private business into a govern­
mental institution. If one man a week comes to a 
tailor shop, it is a place of public resort, but that does 
not make it a public utility or public institution, and 
the tailor still has the right to select his private clien­
tele if he chooses to do so. As a matter of fact, the 
statute in question is not even valid as a criminal 
statute. Obviously, this is not the occasion, however, 
to demonstrate its unconstitutionality.

The majority opinion violates the thirteenth amend­
ment to the United States constitution. It provides, 
inter alia:

‘Neither slavery nor involuntary servitude * * * shall
exist within the United States * * *’ (Italics mine)
Negroes should be familiar with this amendment. 

Since its passage, they have not been compelled to 
serve any man against their will. When a white woman 
is compelled against her will to give a Negress a 
Swedish massage, that too is involuntary servitude. 
Henderson v. Coleman, 150 Fla. 185, 7 So. 2d. 177.

Through what an arc the pendulum of Negro rights 
has swung since the extreme position of the Dred 
Scott decision: Those rights reached dead center when 
the thirteenth amendment to the United States consti­
tution abolished the ancient wrong of Negro slavery. 
This court has now swung to the opposite extreme 
in its opinion subjecting white people to “involuntary 
servitude” to Negroes. I dissent.”

In the case of Williams versus Howard Johnson’s Res­
taurant, (Va.) (1959), U. S. C. A. 4th Cir., F. 2d. 845, a 
Negro attorney brought a class action in federal court 
against a restaurant located in Alexandria, Virginia seek­
ing a declaratory judgment that a refusal to serve him 
because of race, violated the Civil Rights Act of 1875, etc.

An appeal, the Court of Appeals for the Fourth Circuit 
affirmed the lower court’s dismissal for want of jurisdiction



57

and failure to state a cause of action, on the ground that 
defendant’s restaurant, could refuse service to anyone, not 
being a facility of interstate commerce, and that the Civil 
Rights Act of 1875, did not embrace actions of individuals. 
Further, that as an instrument of local commerce, it was 
[fol. 55] at liberty to deal with such persons as it might 
select.

The court said:
“Sections 1 and 2 of the Civil Rights Act of 1875, 

upon which the plaintiff’s position is based in part, 
provided that all persons in the United States should be 
entitled to the full and equal enjoyment of accommoda­
tions, advantages, facilities and privileges of inns, 
public conveyances and places of amusement, and that 
any person who should violate this provision by denying 
to any citizen the full enjoyment of any of the enu­
merated accommodations, facilities or privileges should 
for every such offense forfeit and pay the sum of $500 
to the person aggrieved. The Supreme Court of the 
United States, however, held in Civil Rights Cases, 
109 U. S. 3, that these sections of the Act were uncon­
stitutional and were not authorized by either the Thir­
teenth or Fourteenth Amendments of the Constitution. 
The court pointed out that the Fourteenth Amendment 
was prohibitory upon the states only, so as to invali­
date all state statutes which abridge the privileges 
or immunities of citizens of the United States or de­
prive them of life, liberty or property without due 
process of law, or deny to any person the equal pro­
tection of the laws; but that the amendment did not 
invest Congress with power to legislate upon the 
actions of individuals, which are within the domain of 
state legislation. The Court also held that the question 
whether Congress might pass such a law in the exer­
cise of its power to regulate commerce was not before 
it, as the provisions of the statute were not conceived 
in any such view (109 U. S. 19). With respect to the 
Thirteenth Amendment, the Court held that the denial 
of equal accommodations in inns, public conveyances 
and places of amusement does not impose the badge



of slavery or servitude upon the individual but, at 
most infringes rights protected by the Fourteenth 
Amendment from state aggression. I t is obvious, in 
view of that decision, that the present suit cannot be 
sustained by reference to the Civil Eights Act of 
1875.

The plaintiff concedes that no statute of Virginia 
requires the exclusion of Negroes from public restau­
rants and hence it would seem that he does not rely 
upon the provisions of the Fourteenth Amendment 
which prohibits the states from making or enforcing 
any law abridging the privileges and immunities of 
citizens of the United States or denying to any person 
the equal protection of the law. He points, however, to 
statutes of the state which requires the segregation of 
the races in the facilities furnished by carriers and by 
persons engaged in the operation of places of public 
assemblage; he emphasizes the long established local 
custom of excluding Negroes from public restaurants 
and he contends that the acquiescence of the state in 
these practices amounts to discriminatory state action 
which falls within the condemnation of the Constitu­
tion. The essence of the argument is that the state 
licenses restaurants to serve the public and thereby is 
burdened with the positive duty to prohibit unjust 
discrimination in the use and enjoyment of the facili­
ties.

This argument fails to observe the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and social 
practices. Unless these actions are performed in obedi­
ence to some positive provision of state law they do 
[fol. 56] not furnish a basis for the pending complaint. 
The license laws of Virginia do not fill the void. Section 
35-26 of the Code of Virginia, 1950, makes it unlawful 
for any person to operate a restaurant in the state 
without an unrevoked permit from the Commissioner, 
who is the chief executive officer of the State Board of 
Health. The statute is obviously designed to protect



59

the health of the community but it does not authorize 
state officials to control the management of the busi­
ness or to dictate what persons shall be served. The 
customs of the people of the state do not constitute 
state action within the prohibition of the Fourteenth 
Amendment. As stated by the Supreme Court of the 
United States in Shelly v. Kraemer, 334 U. S. 1; 68 
S. Ct. 836, 842:

‘Since the decision of this court in the Civil Eights 
Cases, 1883,109 U. S. 3 * * * the principle has become 
firmly embedded in our constitutional law that the 
action inhibited by the first section of the Fourteenth 
Amendment is only such action as may fairlij he 
said to he that of the states. That Amendment erects 
no shield against merely private conduct, however 
discriminatory or wrongful. (Emphasis supplied.)”

In the case of State of Maryland versus Drews, Et. Als., 
Cir. Court for Baltimore Co. (May 6, 1960), (Kace Rela­
tions Law Reporter, Vol. 5, No. 1, Summer—1960) five 
persons, three white and two Negro, were prosecuted in 
the Baltimore County, Maryland Circuit Court on the 
statutory charge of disturbing the peace. It was found 
that defendants had on the date of their arrest entered 
an amusement park owned by a private corporation, which 
unknown to defendants, had a policy of not serving colored 
persons. A special officer employed by the corporate owners 
informed defendants of the policy and asked the two 
colored defendants to leave. When they refused, all five 
defendants were requested to leave, but all refused. Balti­
more County police who were then summoned to the area 
repeated the requests; but defendants again refused to 
leave; that over the physical resistance of defendants, they 
were arrested and removed from the premises.

The Court held: (1) that the park owner, though corpo­
rately chartered by the state and soliciting public patron­
age, could ‘arbitrarily restrict (the park’s) use to invitees 
of his selection’ etc. * * * (3) that such action occurred in 
a ‘place of public resort or amusement’ within terms of 
the statute allegedly violated, the quoted phrase clearly



60

applying to all places where some segment of the public 
habitually gathers, and not merely to publicly-owned places 
where all members of the public without exception are 
[fob 57] permitted to congregate.

The Court said:
“The first question which arises in the case is the 

question whether an owner of private property to 
which substantial numbers of persons are invited has 
any right to discriminate with respect to persons in­
vited thereon, that is to say, whether such owner may 
exercise his own arbitrary freedom of selection in 
determining who will be admitted to and who will be 
permitted to remain upon his property under circum­
stances where such private property is being used as 
a place of resort for amusement. This question has 
been clearly answered in the affirmative by the authori­
ties. In Madden v. Queens County Jockey Club, 72 
N. E. 2d. 697 (Court of Appeals of New York), it was 
said at Page 698:

‘At common law a person engaged in a public calling 
such as innkeeper or common carrier, was held to be 
under a duty to the general public and was obliged 
to serve, without discrimination, all who sought ser­
vice, * * * On the other hand, proprietors of private 
enterprise, such as places of amusement and resort, 
were under no such obligation, enjoying an absolute 
power to serve whom they pleased. * * *
‘The common-law power of exclusion, noted above, 
continues until changed by legislative enactment.’
The ruling therein announced was precisely adopted 

in the case of Greenfield v. Maryland Jockey Club, 190 
Md. 96, the Court of Appeals, stating at Page 102 of 
its opinion that:

‘The rule that, except in cases of common carriers, 
innkeepers and similar public callings, one may chose 
his customers is not archaic.’
The Court of Appeals also carefully pointed out in 

the Greenfeld case that the rule of the common law is



61

not altered even in the case of a corporation licensed 
by the State of Maryland. The doctrine of the Madden 
and Greenfeld cases, supra, announced as existing 
under the common law, has been held valid, even where 
the discrimination was because of race or color. See 
Williams v. Howard Johnson Restaurant, 268 F. 2d. 
845 (restaurant) (CCA 4 th ); Slack v. Atlantic White 
Tower Systems, Inc., No. 11073 U.S.D.C. for the Dis­
trict of Maryland, D. R. et. al. Thomsen, J. (restau­
rant) ; Hackley v. Art Builders, Inc., et al (U.S.D.C.) 
for the District of Maryland, D. R. January 16, 1960 
(real estate development).

The right of an owner of property arbitrarily to 
restrict its use to invitees of his selection is the estab­
lished law of Maryland. Changes in the rule of law 
conferring that right are for the legislative and not 
the judicial branch of government.

We pass then to the second question: Did such 
action occur at a place of public resort or amusement? 
This involves a determination of the legislative mean­
ing of the expression “place of public resort or amuse­
ment”. If the legislative intent was that the words 
were intended to apply only to publicly owned places 
[fol. 58] of resort or amusement, then, manifestly, the 
testimony would not support a conviction here. By the 
same token, if the expression was intended to apply 
only to places in which all members of the public with­
out exception were authorized or permitted to con­
gregate, again there would be no evidence to support 
conviction here. On the other hand, if the reasonable 
intent and purpose of the quote phrase was to prohibit 
disorderly conduct in a place where some segment of 
the public habitually gathers and congregates, the evi­
dence would clearly justify a conviction.

The first suggested interpretation of the words must 
be rejected, because of the fact that the same statute 
uses the term ‘public worship’, and this fact utterly 
destroys a contention that the word ‘public’ has a con­
notation of public ownership because of our constitu­
tional separation of church and state.



62

The second suggested interpretation is equally in­
valid, because its effect, in the light of the rule of law 
announced in the Greenfeld case, supra, would be the 
precise equivalent of the first suggested interpretation 
of the phrase. Moreover, such an interpretation neces­
sarily would mean that the police authorities would be 
powerless to prevent disorder or bring an end to con­
ditions of unrest and potential disturbance where 
large numbers of the public may be in congregation. 
To suggest such an interpretation is to refute it.

In the opinion of this Court the statute has clear 
application to any privately owned place, where crowds 
of people other than the owner of the premises habitu­
ally gather and congregate, and where, in the interest 
of public safety, police authorities lawfully may exer­
cise their function of preventing disorder. See Askew 
v. Parker, 312 P. 2d. 342 (California). See also State 
v. Lanouette, 216 N. W. 870 (South Dakota).

It is the conclusion of the Court that the Defendants 
are guilty of the misdemeanor charged.”

In the case of Henry v. Greenville Airport Com., U. S. 
Dist. Court (1959) 175 F. Supp. 343, an action asserting 
federal jurisdiction on the basis of diversity of citizenship, 
general federal question, and as a class action under federal 
civil rights statutes was brought in a federal district court 
by a Negro against the Greenville, S. C., airport commis­
sion, members thereof, and the airport manager. The 
complaint alleged that the manager even though informed 
that plaintiff was in interstate traveler, ordered him to 
use a racially segregated waiting room. Plaintiff’s motion 
for a preliminary injunction to restrain defendant from 
making distinctions based on color relative to services at 
the airport was denied in addition to other reasons, be­
cause it was not alleged that defendants had denied him 
[fol. 59] any right under color of state law. The allega­
tion that defendants received contributions from ‘the Gov­
ernment’ to construct and maintain portions of the airport 
was also stricken because it was also held to have nothing to 
do with the claim that he had been deprived of a civil right 
under state law. Defendant’s motion to dismiss was granted 
because plaintiff not having alleged that anything com-



63

plained of was done under color of a specified state law, 
failed to state a cause of action under Section 1343 of 
Title 28 and it being inferable from the complaint that he 
went into the waiting room in order to instigate litigation 
rather than in quest of waiting room facilities, he had no 
cause of action under Section 1981 of Title 42 which was 
said to place duties on Negroes equal to those imposed on 
white persons and to confer no rights on Negroes superior 
to those accorded white persons. It was emphasized that 
activities which are required by the state, must be distin­
guished from those carried out by voluntary choice by 
individuals in accordance with their own desires and social 
practices, the latter kind not being state action.

The court said:
“The plaintiff speaks of discrimination without un­

equivocally stating any fact warranting an inference of 
discrimination. The nearest thing to an unequivocal 
statement in his affidavit is the asserted fact that the 
purported manager of the Greenville Air Terminal 
‘advised him that “we have a waiting room for colored 
folks over there”. Preceding that statement plaintiff’s 
affidavit contains the bald assertion that the manager 
‘ordered me out’. However, the only words attributed 
to the manager by the plaintiff hardly warrant any 
such inference or conclusion. A like comment properly 
should be made concerning the further assertion in 
plaintiff’s affidavit that he ‘was required to be segre­
gated’. What that loose expression means is anyone’s 
guess. From whom was he segregated? The affidavit 
does not say. Was he segregated from his family or 
from his friends, acquaintances or associates, from 
those who desired his company and he theirs? There 
is nothing in the affidavit to indicate such to be true. 
Was he segregated from people whom he did not know 
and who did not care to know him? The affidavit is 
silent as to that also. But suppose he was segregated 
from people who did not care for his company or 
association, what civil right of his was thereby invaded? 
If he was trying to invade the civil rights of others, 
an injunction might be more properly invoked against



64

him to protect their civil rights. I know of no civil 
or uncivil right that anyone has, be he white or colored, 
to deliberately make a nuisance of himself to the 
annoyance of others, even in an effort to create or 
[fol. 60] stir up litigation. The right to equality before 
the law, to be free from discrimination, invests no 
one with authority to require others to accept him 
as a companion or social equal. The Fourteenth 
Amendment does not reach that low level. Even 
whites, as yet, still have the right to choose their own 
companions and associates, and to preserve the in­
tegrity of the race with which God almighty has 
endowed them.

Neither in the affidavit nor in the complaint of the 
plaintiff is there any averment or allegation that what­
ever the defendants may have done to the plaintiff 
was done at the direction or under color of state law. 
It is nowhere stated in either what right the plaintiff 
claims was denied him under color of state law. A 
state law was passed in 1928 that ‘created a Commis­
sion * * * to be known as Greenville Airport Commis­
sion’. That Commission consists of five members, two 
selected by the City Council of the City of Greenville, 
two by the Greenville County Legislative Delegation, 
and the fifth member by the majority vote of the other 
four. The Commission so created is ‘vested with the 
power to receive any gifts or donations from any 
source, and also to hold and enjoy property, both real 
and personal, in the County of Greenville, * * * for 
the purpose of establishing and maintaining aeroplane 
landing fields * * *; and to make such rules and regu­
lations as may be necessary in the conduct and opera­
tion of said aeroplane landing fields”. (Emphasis 
added). Further, the Act authorizes ‘The City of 
Greenville * * * to appropriate and donate to said 
Commission such sums of money as it may deem 
expedient and necessary for the purpose aforesaid’. 
There is nothing in the Act that requires that Commis­
sion to maintain waiting rooms of any sort, segregated 
or unsegregated.



65

There is nothing in the affidavit or complaint of the 
plaintiff which could be tortured into meaning that 
the defendants had denied the plaintiff the use of the 
authorized airport landing fields. He had a ticket 
which authorized him to board a plane there. He was 
not denied that right. In fact there is no clear cut 
statement of any legal duty owed the plaintiff that 
defendants breached; and there is no showing that 
the plaintiff was damaged in any amount by anything 
done by the defendants, or by any one of them, under 
color of state law.”

*  *  *  *  *  #  #

“The jurisdiction of this court is invoked by the 
plaintiff under Section 1343, Title 28, U. S. Code. It 
is appropriate, therefore, that we consider the extent 
of the jurisdiction that is therein conferred on this 
court. By it district courts are given jurisdiction of 
civil actions * * to redress the deprivation, under 
color of state law, * * * of any right, privilege, or 
immunity secured by the Constitution of the United 
States or by any Act of Congress providing for equal 
rights of citizens * * Hence we must look to the 
complaint to ascertain (1) what right plaintiff claims 
he has been deprived of, (2) secured by what constitu­
tional provision or Act of Congress providing for equal 
rights of citizens, and (3) under color of what state 
law? It is not enough for the plaintiff to allege that he 
has been deprived of a right or a privilege. He must 
go further and show what right, or privilege, he has 
been deprived of, by what constitutional provision or 
[fol. 61] Act of Congress it is secured, and under color 
of what state law he has been deprived of his stated 
right. If the plaintiff fails to allege any one or more of 
the specified elements his action will fail as not being 
within the jurisdiction of this court.

As pointed out hereinabove, there is no allegation 
in the complaint that anything complained of was done 
under color of a specified state law. The Court has 
been pointed to no state law requiring the separation of 
the races in airport waiting rooms, and its own re-



search has developed none. Moreover, there is no state 
law that has been brought to the Court’s attention, 
or that it has discovered, which requires the defend­
ants, or anyone else, to maintain waiting rooms at 
airports, whether segregated or unsegregated. Hence 
the advice which it is alleged that the ‘purported man­
ager’ of the Airport gave the plaintiff, saying ‘we have 
a waiting room for colored folks over there,’ could 
not have been given under color of a state law since 
there is no state law authorizing or commanding such 
action.

In connection with the tendered issue of the court’s 
jurisdiction, plaintiff claims that he has a cause of 
action arising under Section 1981, Title 42, U. S. Code. 
It provides:

‘All persons within the jurisdiction of the United 
States shall have the same right in every state * * * 
to the full and equal benefit of all laws and proceed­
ings for the security of persons and property as is 
enjoyed by white citizens, and shall be subject to 
like punishment, pains, penalties, taxes, licenses and 
exactions of every kind * * *’ (Emphasis added).
The undoubted purpose of Congress in enacting Sec­

tion 1981, was to confer on negro citizens rights and 
privileges equal to those enjoyed by white citizens and, 
at the same time, to impose on them like duties and 
responsibilities. The court’s attention has been di­
rected to no law that confers on any citizen, white or 
negro, the right or privilege of stirring up racial dis­
cord, of instigating strife between the races, of en­
couraging the destruction of racial integrity, or of 
provoking litigation, especially when to do so the 
provoker must travel a great distance at public ex­
pense.

It is inferable from the complaint that there were 
waiting room facilities at the airport, but whether 
those accorded the plaintiff and other negroes were 
inferior, equal or superior to those accorded white 
citizens is not stated. I t is also inferable from the com­
plaint that the plaintiff did not go to the waiting room



67

in quest of waiting room facilities, but solely as a 
volunteer for the purpose of instigating litigation 
which otherwise would not have been started. The 
Court does not and should not look with favor on 
volunteer trouble makers or volunteer instigators of 
strife or litigation. A significant feature of Section 
1981, which by some is little noticed and often ignored, 
is that it places squarely on negroes obligations, duties 
and responsibilities equal to those imposed on white 
citizens, and that said Section does not confer on 
negroes rights and privileges that are superior and 
more abundant than those accorded white citizens, 
[fol. 62] Williams v. Howard Johnson’s Restaurant, 
et. al. argued before the Fourth Circuit Court of Ap­
peals June 15, 1959, is in many respects similar to the 
instant case. As here, the plaintiff had a government 
job. He went from his place of public employment into 
the State of Virginia to demand that he be served in a 
restaurant known to him to be operated by its owner, 
the defendant, solely for white customers. He invoked 
the jurisdiction of the court both on its equity side and 
on its law side for himself and for other negroes 
similarly situated. The suit was dismissed by the dis­
trict court. Upon the hearing it was conceded that no 
statute of Virginia required the exclusion of negroes 
from public restaurants. Hence the Fourteenth Amend­
ment didn’t apply. No action was taken by the defen­
dant under color of state law. Notwithstanding the 
absence of a state law applicable to the situation, the 
plaintiff argued that the long established local custom 
of excluding negroes from white restaurants had been 
acquiesced in by Virginia for so long that it amounted 
to discriminatory state action. The Appellate Court 
disagreed, and so do I. As pointed out in Judge Soper’s 
opinion in the Howard Johnson case, ‘This argument 
fails to observe the important distinction between activ­
ities that are required by the state and those which are 
carried out by voluntary choice and without compul­
sion by the people of the state in accordance with their 
own desires and social practices.’ Further Judge Soper 
said:



68,

‘The customs of the people of a state do not constitute 
state action within the prohibition of the Fourteenth 
Amendment. As stated by the Supreme Court of 
the United States in Shelly v. Kraemer, 334 U. S. 1, 
68 S. Ct. 836, 842 (92 L. ED. 1161):

‘Since the decision of this court in the Civil Rights 
Cases, 1883, 109 U. S. * * * the principle has become 
firmly embedded in our constitutional law that the 
action inhibited by the first section of the Fourteenth 
Amendment is only such action as may fairly he said 
to be that of the States. That Amendment erects no 
shield against merely private conduct, however, dis­
criminatory or wrongful.’ ” (Emphasis supplied)
To say that the right of one person ends where an­

other’s begins has long been regarded as a truism under 
our system of constitutional government. While the 
rights and privileges of all citizens are declared to he 
equal by our constitution there is no constitutional 
command that they be exercised jointly rather than 
severally; and, if there were such a constitutional 
command, the rights and privileges granted by the 
constitution would be by it also destroyed. A constitu­
tion so written or interpreted would be an anomaly.”

In the case of Wilmington Parking Authority and Eagle 
Coffee Shoppe, Inc. versus Burton, (Del. - 1960) 157 A. 2d. 
894, a Delaware Negro citizen was refused service because 
of race by a Wilmington restaurant located in a leased 
[fol. 63] space in a public parking building owned by the 
Wilmington Parking Authority, a state agency. He brought 
a class action in a state chancery court asking for a declara­
tory judgment that such discrimination violated the Four­
teenth Amendment and for injunctive relief.

On appeal the state supreme court reversed the trial 
court.

The appellate court held the fundamental problem to be 
whether the state, directly or indirectly, ‘in reality’, created 
or maintained the facility at public expense or controlled its 
operation; for only if such was the case the Fourteenth 
Amendment would apply.



69

The court held that the Authority did not locate the 
restaurant within the building for the convenience and 
service of the public using the parking facilities and had 
not, directly or indirectly, operated nor financially enabled 
it to operate.

It was held the Authority’s only concern in the restaurant 
—the receipt of rent which defrayed part of the operating 
expense of providing the public with off-street parking— 
was insufficient to make the discriminatory act that of the 
state. And the fact that the City of Wilmington had orig­
inally ‘advanced’ 15% of the facilities, cost (the balance 
being financed by an Authority bond issue) was held not 
to make the enterprise one created at public expense for 
‘slight contributions’ were insufficient to cause that result.

Finally, it was held the fact that the leasee sold alcohol 
beverages did not make it an inn or tavern, which by com­
mon law must not deny service to any one asking for it; 
rather, it functioned primarily as a private restaurant, 
which by common law and state statute might deny service 
to anyone offensive to other customers to the injury of its 
business.

“We think the case before us is distinguishable from 
the cases relied on by the plaintiff. In the first place, 
it is quite apparent, nor is there any suggestion to the 
contrary made by the plaintiff, that the establishment 
of a restaurant in the space occupied by Eagle is a 
pure happenstance and was not intended as a service 
to the public using the parking facility. As far as the 
record before us indicates, it was immaterial to the 
[fol. 64] Authority what type of business would occupy 
the space now occupied by Eagle. The Authority’s sole 
interest was in the obtaining of money in the form of 
rent. That money is thereafter used by the Authority 
to support the public purpose of supplying off-street 
parking from which the plaintiff and the rest of the 
public benefit.

It is further clear from this record, and from the 
Ranken case, that at no time did the Authority con­
template the establishment of a restaurant in the struc­
ture for the use of its parking patrons. On the contrary, 
the commercial lease entered into by the Authority



were given to the highest bidders in terms of rent after 
the solicitation of bids by public advertisement. The 
decision to lease to a particular lessee was made upon 
the considerations of the applicants’ financial respon­
sibility and the amount of rent agreed to be paid. It is 
thus apparent that this case completely lacks the ele­
ment of furnishing service to the public through the 
means of a lease to private enterprise. The only pur­
pose for this lease is to supply a portion of the ad­
ditional money required to permit the Authority to 
furnish the only public service it is authorized to 
furnish, viz., public off-street parking.

The plaintiff argues that the use of public money to 
purchase a portion of the land required brings this case 
within the rule of the cited authorities. But we think 
not. At the most, approximately 15% of the total cost 
is represented by the public ‘advance’ of money. To 
accept the plaintiff’s view would require us in all similar 
cases to measure the respective contributions made by 
public and private money and to determine at what 
point the public contribution changes the nature of the 
enterprise. It is obvious that there is no guide for 
judicial speculation upon such a change. If it is said 
that the contribution of any public money is sufficient 
to change the nature of the enterprise, the answer is 
that it has been held that a slight contribution is in­
sufficient. Cf. Eaton v. Board of Managers, D. C. 164
F. Supp. 191.

Fundamentally, the problem is to be resolved by 
considerations of whether or not the public govern­
ment, either directly or indirectly, in reality, is financ­
ing and controlling the enterprise which is charged 
with racial discrimination. If such is the case, then the 
Fourteenth Amendment applies; if it is not the case, 
the operators of the enterprise are free to discriminate 
as they will. Shelley v. Kraemer, 334 IT. S. 1, 68 S. Ct. 
836, 842, 91 L. Ed. 1161. We neither condemn nor 
approve such private discriminatory practices for the 
courts are not the keepers of the morals of the public. 
We apply the law, whether or not that law folloAvs the 
current fashion of social philosophy.



71

Particularly is this true of a state court which is 
called upon in this field to apply rules made for us 
by the Supreme Court of the United States which, in 
the case of this state, have resulted in the discard of 
a large portion of our local law dealing with the emo­
tional subject of racial relations. We are, of course, 
bound to follow the Federal decisions, but we think 
we are equally bound, when they erode our local law, 
not to extend them to a point beyond which they have 
not as yet gone.

We think the Authority and, through it, the State 
of Delaware does not operate, either directly or in- 
[fol. 65] directly, the business of Eagle; has* not lo­
cated the business of Eagle within the facility for the 
convenience and service of the public using the park­
ing service; and has not financially enabled the busi­
ness of Eagle to operate. The oniy concern the Au­
thority has with Eagle is the receipt of rent, without 
which it would be unable to afford the public the service 
of off-street parking. This circumstance, we think, is 
not sufficient to make the discriminatory act of Eagle 
the act of the State of Delaware.

It follows, therefore, that Eagle, in the conduct of 
its business, is acting in a purely private capacity. It 
acts as a restaurant keeper and, as such, is not re­
quired to serve any and all persons entering its place 
of business, any more than the operator of a book­
store, barber shop, or other retail business is required 
to sell its product to every one. This is the common 
law, and the law of Delaware as restated in 24 Del C 
Par. 1501 with respect to restaurant keepers. 10 Am. 
Jur., Civil Rights PP  21, 22; 52 Am Jur. Theatres 
PP 9; Williams v. Howard Johnson’s Restaurant, 4 
Cir. 268 F. 2d. 845. We, accordingly, hold that the 
operation of its restaurant by Eagle does not fall 
within the scope of the prohibitions of the Fourteenth 
Amendment.

Finally, plaintiff contends that 24 Del. C. PP 1501, 
has no application in the case at bar because Eagle, 
since it serves alcoholic beverages to its patrons, is a 
tavern or inn and not a restaurant. It is argued that,



72

at common law, an inn or tavern could deny services 
to no one asking for it. We think, however, that Eagle 
is primarily a restaurant and thus subject to the pro­
visions of 24 Del. C. PP 1501, which does not compel 
the operator of a restaurant to give service to all 
persons seeking such.”

In the case of Slack v. Atlantic White Tower System, 
Inc., (U.S. Dist. Court, Maryland, 1960), 181 F. Supp. 124, 
a Negress, who because of race had been refused food ser­
vice by a Baltimore, Maryland, restaurant (one of an 
interstate chain owned by a Delaware Corporation) brought 
a class action in federal court for declaratory judgment 
and injunctive relief against the corporate owner claiming 
that her rights under the constitution and laws of the 
United States had been thereby denied.

The court held that segregated restaurants in Maryland 
were not required by any state statute or decisional law, 
but were the result of individual proprietors business 
choice.

The court also rejected plaintiff’s argument that defen­
dant as a licensee of the state to operate a public restaurant, 
[fol. 66] had no right to exclude plaintiff from service 
on a racial basis; rather, the restaurant’s common law 
right to select its clientele (even on a color basis), was 
still the law of Maryland.

Plaintiff’s further contention that the state’s admission 
of this foreign corporation and issuance of a restaurant 
license to it ‘invests the corporation with a public interest’ 
sufficient to make its racially exclusive action the equivalent 
of state action was likewise rejected, the court holding 
that a foreign corporation had the same rights as domestic 
business corporations, and that the applicable state license 
laws were not regulatory. And statements in white primary 
cases, that when individuals or groups “move beyond 
matters of merely private concern’ and ‘act in matters of 
high public interest” they become “representatives of the 
State” subject to Fourteenth Amendment restraints, Avere 
held inapposite to this type situation where defendant had 
not exercised any powers similar to those of a state or city.



73

The Court said:
“Plaintiff seeks to avoid the authority of Williams 

v. Howard Johnson’s Restaurant, 4 Cir., 268 F. 2d. 
845, by raising a number of points not discussed 
therein, and by arguing that in Maryland segregation 
of the races in restaurants is required by the State’s 
decisional law and policy, whereas, she argues, that 
was not true in Virginia, where the Williams case 
arose. She also contends that the Williams case was 
improperly decided and should not be followed by 
this Court.

# # # # # # #
Such segregation of the races as persists in restau­

rants in Baltimore is not required by any statute or 
decisional law of Maryland, nor by any general custom 
or practice of segregation in Baltimore City, but is 
the result of the business choice of the individual 
proprietors, catering to the desires or prejudices of 
their customers.

Plaintiff’s next argument is that defendant, as a 
licensee of the State of Maryland operating a public 
restaurant or eating facility, had no right to exclude 
plaintiff from its services on a racial basis. She rests 
her argument on the common law, and on the Maryland 
license law.

In the absence of statute, the rule is well established 
that an operator of a restaurant has the right to select 
the clientele he will serve, and to make such selection 
based on color, if he so desires. He is not an innkeeper 
[fol. 67] charged -with a duty to serve everyone who 
applies. Williams v. Howard Johnson’s Restaurant, 
268 F. 2d. at 847; Alpaugh v. Wolverton, 184 Va. 943; 
State v. Clyburn, 101 S. Ed. 2d. 295; and authorities 
cited in those cases. There is no restaurant case in 
Maryland, but the rule is supported by statements of 
the Court of Appeals of Maryland in Grenfeld v. 
Maryland Jockey Club, 190 Md. 96, 102, and in Good 
Citizens Community Protective Association v. Board 
of Liquor License Commissioners, 217 Md. 129, 131.



Art. 56, Secs. 151 et seq., of the Ann. Code of Md., 
1939 ed. (163 et seq. of the 1957 ed.), deals with li­
censes required of persons engaged in all sorts of 
businesses. Secs. 166 (now 178) provides: ‘Each per­
son, firm or corporation, resident or non-resident, op­
erating or conducting a restaurant or eating place, 
shall, before doing so take out a license therefor, and 
pay an annual license fee of Ten Dollars ($10.00) for 
each place of business so operated except that in in­
corporated towns and cities of 8,000 inhabitants or 
over, the fee for each place of business so operated 
shall be Twenty-Five Dollars ($25.00)’. The Attorney 
General of Maryland has said that ‘A restaurant is 
generally understood to be a place where food is served 
at a fixed price to all comers, usually at all times.’ This 
statement was made in an opinion distinguishing a 
restaurant from a boarding house for licensing pur­
poses. 5 Op. Atty. Gen. 303. It was not intended to 
express opinion contrary to the common law right of 
a restaurant owner to choose his customers. The Mary­
land Legislature and the Baltimore City Council have 
repeatedly refused to adopt bills requiring restaurant 
owners and others to serve all comers regardless 
of race; several such bills are now pending. See An­
nual Report of Commission, January 1960, p. 29.

Plaintiff contends that defendant is engaged in in­
terstate commerce, that its restaurant is an instrumen­
tality or facility of interstate commerce and thus sub­
ject to the constitutional limitations imposed by the 
Commerce Clause (Const. Art. 1 sec. 8); and that defen­
dant’s refusal to serve plaintiff, a traveler in interstate 
commerce, constituted an undue burden on that com­
merce.

A similar contention was rejected in Williams v. 
Howard Johnson’s Restaurant, 268 F. 2d. at 848. It 
would be presumptuous for me to enlarge on Judge 
Soper’s opinion on this point.

‘The action inhibited by the first section of the Four­
teenth Amendment is only such action as may fairly 
be said to be that of the states. That Amendment



75

erects no shield against merely private conduct, how­
ever discriminatory or wrongful’. Shelley v. Kraemer, 
334 U.S. 1, 13. Plaintiff seeks to avoid this limitation 
by arguing that the admission by the state of a foreign 
corporation and the issuance to it of a license to oper­
ate a restaurant ‘invests the corporation with a public 
interest’ sufficient to make its action in excluding pa­
trons on a racial basis the equivalent of state action.

The fact that defendant is a Delaware corporation 
is immaterial. Once admitted to do business in the 
State of Maryland, it has the same rights and duties 
as domestic corporations engaged in the same business. 
This factor does not distinguish the case from Williams 
v. Howard Johnson’s Restaurant, where the state ac­
tion question was discussed at p. 847.
[fol. 68] The license laws of the State of Maryland 
applicable to restaurants are not regulatory. See 
Maryland Theatrical Corp. v. Brennan, 180 Md. 377, 
381, 382. The City ordinance, No. 1145, November 27, 
1957, adding Sec. 60^ to Art. 12 of the Baltimore 
City Code, 1950 ed. which was not offered in evidence 
or relied on by plaintiff, is obviously designed to pro­
tect the health of the community. Neither the statute 
nor the ordinance authorizes State or City officials to 
control the management of the business of a restaurant 
or to dictate what persons shall be served.

Even in the case of licensees, such as race tracks and 
taverns, where the business is regulated by the state, 
the licensee does not become a state agency, subject 
to the provisions of the Fourteenth Amendment. Mad­
den v. Queen’s County Jockey Club, 296 N. Y. 243, 72 
N. E. 2d. 697, cert. den. 332 U. S. 761, cited with ap­
proval in Greenfeld v. Maryland Jockey Club, 190 Md. 
at 102; Good Citizens Community Protective Associ­
ation v. Board of Liquor License Commissioners, 217 
Md. 129. No doubt defendant might have had plaintiff 
arrested if she had made a disturbance or remained 
at a table too long after she had been told that she 
would only be sold food to carry out to her car. But 
that implied threat is present whenever the proprietor



76

of a business refuses to deal with a customer for any 
reason, racial or other, and does not make his action 
state action or make his business a state agency. Plain­
tiff cites Valle v. Stengel, 3 Cir., 176 F. 2d. 697. In 
that case a sheriff’s eviction of a negro from a private 
amusement park was a denial of equal protection of 
the laws because under the New Jersey antidiscrimi­
nation law the Negro had a legal right to use the park 
facilities.

Plaintiff cites such cases as Nixon v. Condon, 286 
U.S. 73, and Smith v. Allwright, 321 U.S. 649, for 
the proposition that when individuals or groups ‘move 
beyond matters of merely private concern’ and ‘act in 
matters of high public interest’ they become ‘represen­
tatives of the State’ subject to the restraints of the 
Fourteenth Amendment. The distinction between hold­
ing a primary election and operating a restaurant is 
obvious, and has always been recognized by the courts. 
Defendant has not exercised powers similar to those 
of a state or city.

In Kerr v. Enoch Pratt Free Library of Baltimore 
City, 4 Cir., 149 F. 2d. 212, also relied on by plaintiff, 
‘the Library was completely owned and largely sup­
ported * * * by the City; * * * in practical effect its 
operations were subject to the City’s control’, as the 
Fourth Circuit pointed out in distinguishing the Li­
brary case from Eaton v. Board of Managers of the 
James Walker Memorial Hospital, 4 Cir., 261 F. 2d. 
521, 527.

The argument that state inaction in the face of uni­
form discriminatory customs and practices in oper­
ating restaurants amounts to state action was rejected 
in Williams v. Howard Johnson’s Restaurant, 4 Cir., 
268 F. 2d. 845. Moreover, as we have seen, the factual 
premise for the argument is not found in the instant 
case.”

[fol. 69] In the case of Fletcher versus Coney Island, Inc., 
(Ohio 1956), 134 N. E. 2d. 371, a Negro woman sought to 
enjoin the operator of a private amusement park from 
refusing her admittance because of her race or color.



77

In holding that defendant’s remedy was to proceed under 
the State’s anti-discrimination law, and not by way of in­
junction, the Supreme Court of Ohio said:

“In the case of Madden v. Queens County Jockey 
Club, Inc., 296 N. Y. 249, 253, 72 N. E. 2d. 697, 698, 
1 A. L. E. 2d. 1160, 1162, the generally recognized rule 
is stated as follows:

‘At common law a person engaged in a public calling, 
such as an innkeeper or common carrier, was held to 
be under a duty to the general public and was obliged 
to serve, without discrimination, all who sought 
service. * * * On the other hand, proprietors of pri­
vate enterprises such as places of amusement and 
resort, were under no such obligation, enjoying an 
absolute power to serve whom they pleased. * * *’
“The common-law power of exclusion, noted above, 

continues until changed by legislative enactment.” 
(Emphasis supplied.)

“See also Bailey v. Washington Theatre Co., 218 
Ind. 34 N. J. 2d. i7 ; annotation, 1 A. L. E. 2d. 1165; 
and 10 American Jurisprudence 915, Section 22.”

“It will be thus observed that the OAvner or operator 
of a private amusement park or place of entertainment 
may arbitrarily and capriciously refuse admittance to 
whomsoever he pleases, be they Africans, Chinese, 
East Indians, Germans, Italians, Poles, Eussians or 
any other racial group, in the absence of legislation 
requiring him to admit them.”

# # # * * * *
“In summary, the decision in this case rests squarely 

on the proposition that at common law those who own 
and operate priA’ate places of amusement and enter­
tainment can admit or exclude whomsoever they please, 
and that, since such establishments are open to all only 
through legislative enactments, those enactments gov­
ern the situation, and \Adiere as a part of those enact­
ments a specific remedy or penalty is prescribed for 
their violation, such remedy or penalty is exclusive. 
The adequacy or appropriateness thereof being a mat-



78

ter of legislative concern. This decision is limited to 
this precise point and should be so read and ap­
praised.’

“It should be obvious that the present case bears no 
relation whatsoever to the problem of the segregation 
of pupils in the public schools, or to the exclusion of a 
qualified person from an institution of higher learning 
[fol. 70] supported by public funds or a person from a 
publicly owned or operated park or recreation facility, 
because of his race or color.”

In the case of Tamelleo, et al. v. New Hampshire Jockey 
Club, Inc., (N. H. 1960), 163 A. 2d. 10, the plaintiffs pre­
sented themselves at the defendant’s race track but were 
refused admission by the action of one of defendant’s 
agents who ordered them to leave the premises because 
in his judgment their presence was inconsistent with the 
orderly and proper conduct of a race meeting. The plain­
tiffs then left the premises and thereafter instituted these 
proceedings.

The court said:
“It is firmly established that at common law proprie­

tors of private enterprises such as theatres, race tracks, 
and the like may admit or exclude anyone they choose. 
Woolcott v. Shubert, 217 N. Y. 212, 222, 111 N. E. 829, 
L. R. A. 1916 E. 248; Madden v. Queens County Jockey 
Club, 296 N. Y. 249, 72 N. E. 2d 697, certiorari denied 
332 U.S. 761, 68 S. Ct. 63, 922 Ed. 346; 1 A.L.R. 2d 
1165 annotation; 86 C.J.S. Theatres and shows, sec. 
31. While it is true, as the plaintiffs argue and the 
defendants concede, that there is no common-law right 
in this state to operate a race track where pari-mutuel 
pools are sold, horse racing for a stake or price is not 
gaming or illegal. Opinion of the Justices, 73 N. H. 
625, 631, 63 A. 505.

“However, the fact that there is no common-law right 
to operate a pari-mutuel race track is not decisive of 
the issue before us. The business is still a private 
enterprise since it is affected by no such public in­
terest so as to make it a public calling as is a railroad



79

for example. Garifme v. Monmouth Park Jockey Club, 
29 N. J. 47, 148 A. 2d. 1; Madden v. Queens County 
Jockey Club, supra. Regulation by the state does not 
alter the nature of the defendant’s enterprise, nor does 
granting a license to conduct pari-mutuel pools. North 
Hampton Racing and Breeders Association v. New 
Hampshire Racing Commission, 94 N. H. 156, 159, 48 
A. 2d. 472; Greenfeld v. Maryland Jockey Club, 190 Md. 
96, 57 A. 2d. 335. As the North Hampton case points 
out, regulation is necessary because of the social prob­
lem involved. Id., 94 N. H. *159, 48 A. 2d. 475.

“We have no doubt that this state adheres to the 
general rule that the proprietors of a private calling 
possess the common-law right to admit or exclude 
whomever they choose. In State v. United States & C. 
Express, 60 N. H. 219, after holding that a public car­
rier cannot discriminate, Doe, C. J., stated, ‘Others, 
in other occupations, may sell their services to some, 
and refuse to sell to others.” ’ Id. 60 N H 261.” (Em­
phasis supplied.)

“In Batchelder v. Hibbard, 58 N. H. 269, the Court 
states that a license, sofar as future enjoyment is con­
cerned, may be revoked any time. A ticket to a 
race track is a license and it may be revoked for any 
reason in the absence of a statute to the contrary. 
Marrone v. Washington Jockey Club, 227 U.S. 633, 33 
S. Ct. 401, 61 L. Ed. 679.”

# # # * # * *
[fol. 71] “The plaintiffs also contend that if this be 
our law, we should change it in view of altered social 
concepts. This argument ignores altogether certain 
rights of owners and taxpayers, which still exist in 
this state, as to their own property. Furthermore, to 
adopt the plaintiff’s position would require us to make 
a drastic change in our public policy which, as we have 
often stated, is not a proper function of this court.

“The plaintiffs take the position that R.S.A. 284: 
39, 40 as inserted by Laws 1959, c. 210, sec. 14, is in­
valid as an unconstitution delegation of legislative 
power. We cannot agree. Laws 1959, c. 210 is entitled:



80

‘An act relative to Trespassing on Land of Another 
and at Race Tracks and Defining Cultivated Lands”. 
Section 4 (R.S.A. 284:39, under the heading ‘Trespass­
ing’ reads as follows: ‘Rights of Licensee. Any licen­
see hereunder shall have the right to refuse admission 
to and to eject from the enclosure of any race track 
where is held a race or race meet licensed hereunder 
any person or persons whose presence within said 
enclosure is in the sole judgment of said licensee incon­
sistent with the orderly and proper conduct of a race 
meeting.’ As applied to this case this provision is sub­
stantially declaratory of the common law which per­
mits owners of private enterprises to refuse admission 
or to eject anyone whom they desire. Garifine v. Mon­
mouth Park Jockey Club, 29 N. J. 47, 148 A. 2d. 1.

“The penalty provision, section 4 (R.S.A. 284:40) 
states: ‘Penalty. Any person or persons within said 
enclosure without right or to whom admission has been 
refused or who has previously been ejected shall be 
fined not more than one hundred dollars or imprisoned 
not more than one year or both.’ This provision stands 
no differently than does that imposing a penalty upon 
one who enters without right the cultivated or posted 
land of another. R. S. A. 572:15 (supp) as amended. 
One charged with either of these offenses or with tres­
pass at a race track would of course have a right to 
trial and the charge against him would have to be 
proved, as in any other criminal matter. No license to 
pass any law is given to the defendant. The situation 
is clearly unlike that condemned in Ferretti v. Jack- 
son, 88 N. H. 296, 188 A. 474, and Opinion of the 
Justices, 88 N. H. 497, 190 A. 713, upon which the plain­
tiffs rely, where the milk board was given unrestricted 
and unguided discretion, in effect, to make all manners 
of laws within the field of its activity. It thus appears 
that there is no unlawful delegation of legislative 
powers in the present case.”

In the case of Hall v. Commonwealth, (Va. 1948) 49 
S. E. 2d. 369, Appeal Dismissed, See 69 S. Ct. 240), a 
Jehovah’s Witness, was convicted for trespassing on pri-



81

vate property. He sought appellate relief on the ground 
that the conviction violated his right to freedom of speech, 
freedom of the press, freedom of assembly, and freedom 
of worship guaranteed to him by the Constitutions of the 
United States and the State of Virginia.

The court said:
[fol. 72] “The statute under which the accused was 
prosecuted is Chapter 165, Acts of 1934, sec. 4480a, 
Michie’s 1942 Code, which provides: ‘That if any per­
son shall without authority of law go upon or remain 
upon the lands or premises of another, after having 
been forbidden to do so by the owner, lessee, custodian 
or other person lawfully in charge or possession of such 
land he shall be deemed guilty of a misdemeanor, 
etc. * * *

“Mr. Justice Black in Martin v. City of Struthers, 
319 U. S. 141, at page 147, 63 S. Ct. 862, at page 865, 87 
L. Ed. 1313, speaking of this particular statute and 
other statutes of similar character, said: ‘Tradition­
ally the American Law punishes persons who enter 
onto the property of another after having been warned 
by the owner to keep off. General trespass after warn­
ing statutes exist in at least twenty states, while sim­
ilar statutes of narrower scope are on the books of at 
least twelve states more.’

“We find nothing in the statute when properly ap­
plied which infringes upon any privilege or right guar­
anteed to the accused by the Federal Constitution.” 

# # # # # # #
“The most recent expressions of the Supreme Court 

of the United States on this subject are found in 
Marsh v. Alabama, 326 U. S. 501, 66 S. Ct. 276, 90 
L. Ed. 265, and Tucker v. Texas, 326 U. S. 517, 66 
S. Ct. 274, 90 L. Ed. 274, both of which were decided 
by a divided court.

# # # # # # #

“In concluding the discussion the New York court 
said: ‘Our purpose in this briefly analyzing those



82

decisions (Marsh v. Alabama and Tucker v. Texas) is 
to show that they do not (nor do any others of which 
we know) go nearly so far as appellants would have us 
go here. Parkchester, like Chickasaw, Alabama, and 
the Federal housing community in Texas, is privately 
owned, but there the similarity as to facts ends. It is 
undisputed that this defendant has never sought in 
any way to limit the Witnesses’ activities on the streets 
or sidewalks of Parkchester some of which are pri­
vately and some publicly owned. The distribution which 
this defendant’s regulation inhibits was not on the 
streets, sidewalks or other public or quasi-public places, 
but inside of and into, the several floors and inner 
hallways of multiple dwellings.’

# * # # # # *

“We think the Bohnke case, supra, is still the law and 
leaves solid the regulation of door-to-door calls along 
public streets. But regardless of the Bohnke ruling, 
no case we know of extends the reach of the bill of 
rights so far as to prescribe the reasonable regulation 
by an owner, of conduct inside his multiple dwelling. 
So holding, we need not examine the larger question 
of whether the pertinent clauses of the Constitutions 
have anything to do with rules made by any dwelling 
proprietors, governing conduct inside their edifices.”

[fol. 73] In the case of State versus Hunter, 114 So. 76, 
164 La. 405, 55 A. L. R. 309, Aff. Hunter v. State of La., 
48 S. Ct. 158, 205 U. S. 508, 72 L. Ed. 398, the Supreme 
Court of Louisiana said:

“The defendant was convicted of the offense of going 
on the premises of a citizen of the state, in the night­
time, without his consent, and moving or assisting in 
moving therefrom a tenant and his property or effects. 
* * * The offense was a violation of the Act No. 38 of 
1926, p. 52; which makes it unlawful to go on the prem­
ises or plantation of a citizen of this state, in the night­
time or between sunset and sunrise, without his con­
sent, and to move or assist in moving therefrom any 
laborer or tenant. The act declares that it does not



83

apply to what is done in the discharge of a civil or 
military order.”

* * * * * * *

“The defendant pleaded that the statute was violative 
of the guaranty in the second section of Article 4 of the 
Constitution of the United States that the citizens of 
each state shall be entitled to all privileges and immu­
nities of citizens in the several states, and was violative 
also of the provision in the Fourteenth Amendment 
that no state shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; and violative of the due process clause 
and the equal protection clause of the Fourteenth 
Amendment.”

* * * * * * *

“On the occasion referred to in the bill of information 
he, (defendant) went upon the plantation of one T. D. 
Connell, a citizen of Louisiana, in the nighttime and 
without Connell’s consent and moved from the planta­
tion to the state of Arkansas a tenant of Connell and 
the tenant’s property or effects. The defendant was 
employed by Connell’s tenant to do the hauling, and 
was not discharging any civil or military order. Some 
of the plantations in that vicinity were owned by citi­
zens of Louisiana and some by persons not citizens of 
Louisiana. For several months previous to the occasion 
complained of the defendant was engaged in hauling 
persons and their property and effects, in the ordinary 
course of his business, and regardless of whether any 
of the persons moved were laborers or tenants on prem­
ises owned by a citizen of Louisiana or by a citizen of 
another state.

“The statute is not an unreasonable exercise of the 
police power of the state. It merely forbids a person 
having no right to be on the premises of another to go 
there in the nighttime and without the proprietor’s 
consent—and therefore as a trespasser—and to move 
or assist in moving from the premises a laborer or 
tenant or his property or effects. The purpose of the 
statute, manifestly, is to preserve the right of every



84

landlord or employer of farm labor to be informed of 
the removal from his premises of any personal prop­
erty or effects. Without a statute on the subject it 
would be unconventional in the rural districts, to say 
the least, for an outsider to take the liberty of going 
upon the premises of another in the nighttime to cart 
away personal property or effects, without the land- 
[fol. 74] owner’s consent. The statute does not dis­
criminate with regard to those who may or may not 
commit the act. It forbids all alike. The discrimina­
tion is in what is forbidden. It is not forbidden—by this 
particular statute—to trespass upon the land of one 
who is not a citizen of the state, by going upon his 
premises in the nighttime without his consent. Perhaps 
the Legislature used the Avord “citizen” not in its tech­
nical or political sense but as meaning a resident of the 
state, and perhaps the Legislature thought the law 
would be too harsh if it forbade those engaged in the 
transfer business to go upon premises belonging to a 
non-resident—even in the nighttime—without first ob­
taining his consent. The discrimination, therefore, is 
not arbitrary or beyond all possible reason. The de­
fendant has no cause to complain that the Legislature 
did not go further, in enacting the law, and forbid a 
similar act of trespass upon the premises of a citizen 
of another state. If he had the right to complain of 
such discrimination, Ave Avould hold that the statute 
does not deprive the citizens of other states, OAvning 
land in this state, of any privilege or immunity guar­
anteed to the landowners Avho are citizens of this state. 
The privileges and immunities referred to in the sec­
ond section of Article 4 of the Constitution of the 
United States are only those fundamental rights Avhich 
all individuals enjoy alike, except insofar as they are 
all restrained alike. White v. Walker, 136 La. 464, 
67 So. 332 Central Loan & Trust Co., v. Campbell 
Commission Co., 173 U. S. 84, 19 S. Ct. 346, 43 L. Ed. 
623. If the trespass committed by the defendant in 
this case had been committed on land belonging to a 
citizen of another state, there Avould have been no 
violation of the Act No. 38 of 1926; and in that event



85

the citizen of the other state would have had no means 
of compelling the Legislature of this state to make the 
law applicable to his case, or right to demand that the 
courts should declare the law null because not ap­
plicable to his case. All of which merely demonstrates 
that the statute in question is not violative of the 
second section of Article 4 of the Constitution of the 
United States or of the due process clause or equal 
protection clause of the 14th. Amendment.”

“These guarantees of freedom of religious worship, 
and freedom of speech and of the press, do not sanction 
trespass in the name of freedom. We must remember 
that personal liberty ends when the rights of others 
begin. The constitutional inhibition against the mak­
ing of a law respecting an establishment of religion, 
or prohibiting the free exercise thereof, or abridging 
the freedom of speech or of the press does not conflict 
with the law which forbids a person to trespass upon 
the property of another.”

State v. Martin, et als. 5 So. 2d. 377,199 La. 39.

In support of their plea of unconstitutionality, defendants 
cite the cases of Shelley v. Kraemer, 334 U.S. 1, 20, 68 S. Ct. 
836, 92 L. Ed. 1161, Marsh v. Alabama, 326 U. S. 501, Valle 
v. Stengel, 176 F. 2d. 697 (3rd. Cir. 1949), and other cita­
tions contained in their brief.
[fol. 75] The State’s freedom of action in protecting the 
peaceful possession of private property outweighs a tres­
passer’s right not to have the state enforce private discrim­
inations. Only when this means of protecting property 
interests impairs a preferred fundamental right such as 
freedom of speech, press or religion in a context of great 
public interest have the courts been inclined to question 
the constitutionality of a statute. The present state of the 
law not only recognizes a man’s home to be his castle, but 
allows the state to police his gate and coercively enforce 
his racial discriminations.

Assuming that arresting the defendants constituted state 
action (which is denied), the privileges and immunities 
clause of the 14th. Amendment was not violated because 
unlike the right to own property (Shelley v. Kraemer)



8 6

which is defined by statute, there is no specific right or 
privilege to enter the premises of another and remain there 
after being asked to depart. In fact the civil and criminal 
laws of trespass and real property, put the privilege of 
peaceful possession in the owner. An extension of the 
doctrine of Shelley v. Kraemer one step further would 
mean a holding that the enforcement of a criminal statute, 
in itself nondiscriminatory, could become discriminatory 
when the complainant prosecutes for discriminatory rea­
sons and thus finding state action that discriminates be­
cause of race, creed or color.

For the reasons assigned in the authorities supporting 
the constitutionality of statutes similar to L.S.A.-R.S. 
14:59(6), the Court holds defendants citations to be inap­
plicable to the factual and legal situation present in the 
case at bar.

Defendants’ contentions are without merit.
The Court holds L.S.A.-R.S. 14:59(6) constitutional, and 

the bill of information filed thereunder good and sufficient 
in law.

The motion to quash is overruled and denied.
New Orleans, Louisiana, 28th day of November, 1960.

J. Bernard Cocke, Judge.

[fol. 76]
I n  the Criminal D istrict Court 

P arish of Orleans

[Title omitted]

Motion for a N ew T rial—Filed January 3, 1961
And Now Come the said Rudolph Lombard, Oretha 

Castle, Cecil Carter, Jr., and Sydney L. Goldfinch, Jr., 
through their attorneys John P. Nelson, Jr., Robert F. 
Collins, Nils R. Douglas and Lolis E. Elie, and move the 
court that the verdict be set aside and a new trial ordered 
for the following reasons, to-wit:



87

The verdict is contrary to law in that:
A. Section 14:59(6) of the Louisiana Revised Statutes 

of 1960 is unconstitutional in that it violates Article 14 
of the United States Constitution and Article IX of the 
Constitution of the State of Louisiana in that it was 
enacted to implement and further the State’s policy and 
custom of forced segregation of races in public places 
and/or places vested with a public interest;

B. Section 14:59(6) of the Louisiana Revised Statutes 
of 1960 is unconstitutional and violative of Article 14 of 
the Constitution of the United States and Article IX of 
the Constitution of the State of Louisiana in that it dele­
gates legislative authority to use discretion without setting 
limits and standards relevant to a legislative purpose rea­
sonably directed toward the public welfare;

C. Defendants were deprived of equal protection of the 
law when they were ordered to leave a place of business 
under the circumstances evidenced by the record, which 
circumstances were prevailing in the community at the time 
of their arrest;

D. The information charging defendants with violation 
of L.S.A.-R.S. 14:59(6), to wit, criminal mischief, is in­
valid in that the evidence established merely that defen­
dants were peacefully upon the premises of McCrory- 
McClennan Corp., an establishment performing an economic 
function invested with the public interest, as a customer, 
visitor, business guest or invitee, and there is no basis for 
the charge recited by the information other than an effort 
[fol. 77] to exclude defendants from a portion of the said 
establishment because of their race or color; defendants 
at the same time are excluded from equal service at a 
preponderant number of other similar eating establishments 
in New Orleans, thereby depriving them of liberty without 
due process of law and of the equal protection of the laws 
secured by the 14th. Amendment of the United States 
Constitution.

I.



88

E. The evidence offered against defendants in support 
of the information charging them with violation of L.S.A.-
R.S. 14:59(6) establishes that at the time of arrest and 
at all times covered by the charges, they were in peaceful 
exercise of constitutional rights to assemble with others 
for the purpose of speaking and protesting against the prac­
tice, custom and usage of racial discrimination in McCrory- 
McClennan Corp., an establishment performing an economic 
function invested with the public interest; that defendants 
were peacefully attempting to obtain service in the facili­
ties of McCrory-McLennan Corp., in the manner of white 
persons similarly situated and at no were defendants de­
fiant or in breach of the peace and were at all times upon 
an area essentially public, wherefore defendants have been 
denied rights secured by the due process and equal pro­
tection clauses of the 14th. Amendment of the United States 
Constitution;

F. The evidence establishes that prosecution of defen­
dants was procured for the purpose of preventing them 
from engaging in peaceful assembly with others for the 
purpose of speaking and otherwise peacefully protecting 
in public places the refusal of the preponderant number 
of stores, facilities and accommodations open to the public 
in New Orleans to permit defendants and other members of 
the Negro race from enjoying the access to facilities and 
accommodations afforded members of other races; and that 
by this prosecution, prosecuting witnesses and arresting 
officers are attempting to employ the aid of the court to 
enforce a racially discriminatory policy contrary to the 
due process and equal protection clause of the 14th. Amend­
ment to the Constitution of the United States;

Gr. L.S.A.-R.S. 14:59(6), under which defendants were 
arrested and charged, is unconstitutional on its face by 
making it a crime to be on public property after being 
[fol. 78] asked to leave the premises by an individual at 
such individual’s whim, in that said statute does not re­
quire that the person making the demand to leave present 
documents or other evidence of possessory right sufficient 
to apprise defendants of the validity of the demand to 
leave, all of which renders the statute so vague and uncer-



89

tain as applied to defendants as to violate their rights 
under the due process clause of the 14th. Amendment to 
the United States Constitution;

H. L.S.A.-R.S. 14:59(6), under which defendants were 
arrested and charged with criminal mischief, is on the 
evidence unconstitutional as applied to defendants in that 
it makes it a crime to be on property open to the public 
after being asked to leave because of race or color, in viola­
tion of defendant's rights under the due process and equal 
protection clauses of the 14th. Amendment of the United 
States Constitution;

I. The evidence offered against the defendants estab­
lishes that at the time of arrest and all times covered by 
the warrant, they were members of the public, attempting 
to use a facility open to the public, which was denied to 
them solely because of race or color; that McCrory Mc- 
Clennan Corp. was and is offering, for a price, to serve 
all members of the public with food; that this public 
facility, McCrory-McLennan Corp., is, along with others 
of a similar nature, performing a necessary service for 
the public which in fact would have to be provided by the 
state if McCrory-McLennan Corp., and other like facilities 
were all to withdraw said service; that having determined 
to offer said valuable service to the public, McCrory- 
McLennan Corp., is required to provide such service in 
the manner of state operated facilities of a like nature, 
to-wit: that McCrory-McLennan Corp., may not segregate 
or exclude defendants on the ground of race or color, in 
violation of the due process and equal protection clauses of 
the 14th. Amendment of the United States Constitution.

II.

The verdict is contrary to the evidence in th a t:
[fol. 79] The state did not prove beyond a reasonable 
doubt that the defendants were ordered by the person in 
charge to leave the premises.

III.

The following errors were committed to the prejudice of 
the accused:



90

A. The Court refused to allow evidence showing that 
employees of McCrory-McLennan Corp., were acting in con­
cert with and/on behalf of the law enforcement agencies 
and officials of the State of Louisiana.

B. The Court refused to sustain objection to leading 
questions which were material to the issues;

C. The court refused to allow the introduction of evi­
dence showing the effect that McCrory-McLennan Corp., 
has on inter-state commerce.

Wherefore, your movers pray that, after due proceed­
ings had, the verdict be set aside and a new trial ordered 
herein.

S. Langston Goldfinch, Jr., Rudolph Lombard, Cecil 
W. Carter, Jr., Oretha Castle.

John P. Nelson, Jr., Robert F. Collins, Nils R. Douglas, 
Lolis E. Elie, By: John P. Nelson.

Duly sworn to by four defendants, jurat omitted in 
printing.

[fol. 80]
I n t h e  C r im in a l  D istrict  Court 

P a rish  of O rleans

[Title omitted]

M otion  in  A rrest of J u d gm en t— Piled January 3, 1961

And Now, after verdict against the said Rudolph Lom­
bard, Oretha Castle, Cecil Carter, Jr., and Sydney L. Gold­
finch, Jr., through their attorneys John P. Nelson, Jr., 
Robert F. Collins, Nils R. Douglas, and Lolis E. Elie, and 
before sentence, move the Court here to arrest judgment 
herein, and not pronounce the same because of manifest 
errors in the record appearing, to-wit:

The verdict is contrary to law in tha t:



91

A. Section 14:59(6) of the Louisiana Revised Statutes 
of 1960 is unconstitutional in that it violates Article 14 
of the United States Constitution and Article 1 of the Con­
stitution of the State of Louisiana in that it was enacted 
to implement and further the State’s policy and custom of 
forced segregation of races in public places and/or places 
vested with a public interest;

B. Section 14:59(6) of the Louisiana Revised Statutes 
of 1960 is unconstitutional and violative of Article 14 of 
the Constitution of the United States and Article 1 of the 
Constitution of the State of Louisiana in that it delegates 
legislative authority to use discretion without setting lim­
its and standards relevant to a legislative purpose reason­
ably directed toward the public welfare;

C. Defendants were deprived of equal protection of the 
law when they were ordered to leave a place of business 
under the circumstances evidenced by the record, which 
circumstances were prevailing in the community at the 
time of their arrest;

D. Louisiana R. S. 14:59(6), under which defendants 
were arrested and charged, is unconstitutional on its face 
by making it a crime to be on public property after being 
asked to leave the premises by an individual at such indi­
vidual’s whim, in that said statute does not require that 
[fol. 81] the person making the demand to leave present 
documents or other evidence of possessory right sufficient 
to apprise defendants of the validity of the demand to 
leave, all of wffiich renders the statute so vague and un­
certain as applied to defendants as to violate their rights 
under the due process clause of the 14th. Amendment of the 
United States Constitution.

And, because no judgment against them, the said Rudolph 
Lombard, Oretha Castle, Cecil Carter, Jr., and Sydney L. 
Goldfinch, Jr., can be lawfully rendered on said record your 
movers pray that, after due proceedings had, that the judg­
ment herein be arrested.

Rudolph Lombard, S. Langston Goldfinch, Cecil W.
Carter, Jr., Oretha Castle.



92

John P. Nelson, Jr., Robert F. Collins, Nils R. Douglas, 
Lolis E. Elie, By: John P. Nelson, Jr.

Duly sworn to by four defendants, jurat omitted in 
printing.

[fol. 82]
I n t h e  C r im in a l  D istrict  C ourt 

P a rish  of Orleans

[Title omitted]

B il l  of E x ceptio n  N o. 1 and P er  C u riam  T h er eo n —  
January 10, 1961

Be It Remembered that before entering on the trial of 
this ease, your defendants, having heard the Information 
read and protesting that they were each not guilty of the 
offense set out therein, filed the following Motion to Quash 
the said Information:

Motion to Quash, see Tr. p. 9 et seq.
[fol. 83] That on a subsequent day of Court a hearing was 
had contradictorily with the State on the said Motion to 
Quash, (the State having first filed an answer to the Motion 
to Quash), on which testimony was heard and evidence 
offered, and that the Court took the matter under advise­
ment.

That on the 28th., day of November, 1960, the Court filed 
a written ruling overruling and denying the said Motion 
to Quash to which your defendants then and there objected 
and reserved a bill of exceptions, making a part of the 
bill of exception the Information, the Motion to Quash the 
State’s answer to the motion to quash, the evidence offered 
and testimony heard on the motion to quash, and the court’s 
written ruling overruling and denying the said Motion to 
Quash, and your defendants now perfect this formal bill 
of exceptions making a part of the same the said Informa­
tion, the Motion to Quash, the State’s answer to the motion 
to quash, the evidence offered and testimony heard on the 
motion to quash, the Court’s written ruling overruling and



93

denying the said Motion to Quash, and the entire record 
in these proceedings, and first submitting this their formal 
bill of exceptions to the District Attorney, now tenders the 
same to the court and prays that the same be signed and 
sealed by the Judge of this Court, pursuant to the Statute 
in such case made and provided, which is done accordingly 
this 10th. day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 84]
Per Curiam to Bill of Exception No. 1

This bill was reserved to the denial of the motion to 
quash the bill of information.

The motion addresses itself to the constitutionality of 
L.S.A.-R.S. 14:59(6), the Criminal Mischief statute under 
which defendants are charged, as well as certain supposed 
infirmities present in the bill of information.

In passing upon defendants’ contentions, the Court filed 
written reasons upholding the constitutionality of L.S.A.-
R.S. 14:59(6), and refusing to quash the bill of information.

The Court makes part of this per curiam the written 
reasons for judgment.

There is no merit to the bill.
New Orleans, Louisiana, 10th day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 85]
I n  t h e  C r im in a l  D istrict  C ourt 

P a rish  of Orleans

[Title omitted]

B il l  of E x ceptio n  N o. 2 and P er C u riam  T h er eo n —  
January 10, 1961

Be It Remembered that on the hearing of the Motion to 
Quash, during the direct testimony of Mr. Wendell Barrett, 
a witness for Mover, the following occurred:



94

“Q. Mr. Barrett have you sir in the last 30 to 60 
days entered into any conference with other depart­
ment store managers here in New Orleans relative to 
sit-in demonstrations?

A. I don’t know what you mean by conferences.
Q. Discussions with them?
A. We have spoken of it, yes.
Mr. Zibilich: Renew my original objection.
The Court: The objection is well taken. 1 won’t 

permit you to go any further. You can dictate into the 
record what you want to ask of this witness.

Mr. Nelson: Respectfully object and reserve a bill 
of exceptions making the question, the objection, and 
the ruling of the court all part of the bill.

The purpose of this Your Honor is a question of 
conformity with state policy.

The Court: The man already said that he had the 
right to determine the policy, based on tradition, cus­
tom and the laws of the community. Is that going to 
affect me in the slightest that he had a meeting with 
the manager of D. H. Holmes or Godchaux or any­
body else, and I don’t see the relevancy of it at all. You 
have established the policy of this store and the policy 
nationally dictated giving him the discretion. What 
more do you want?

By Mr. Nelson:
Q. Mr. Barrett, have you ever met with members of 

the New Orleans Police Department and discussed 
problems of sit-in demonstrations and how you or 
how they should be handled if they arise in your store?

Mr. Zibilich: Object.
The Court: Same objection, same ruling.
Mr. Nelson: Respectfully object and reserve a bill 

of exception, making the question, the objection and the 
ruling of the court part of the bill.



95

By Mr. Nelson:
Q. Now Mr. Barrett, would you kindly tell the court 

the plan or procedure that your store uses here in 
the city when sit-in demonstrations take place?
[fol. 86] Mr. Zibilich: Same objection.

The Court: Same ruling.
Mr. Nelson: Respectfully object and reserve a bill 

of exception making the question, objection and the 
ruling of the court part of the bill.

Examination (resumed).

By Mr. Nelson:
Q. Do you have a plan that your employees are aware 

of which is to go into effect if there is a sit-in demon­
stration in your store?

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: Reserve a bill making the question, the 

objection, and ruling of the court part of the bill.”

And Be It Further Remembered, that during the trial 
of the case on its merits, the State called Captain Lucien 
Cutrera of the New Orleans Police Department as a wit­
ness, that the following testimony was had under cross- 
examination by Mr. Nelson:

“Q. Did you know officer whether there was any plan 
approved by the police prior as to what the people 
should do in the event of a sit-in?

A. I didn’t catch the question.
Mr. Zibilich: I object to it.
The Court: Read the question.
The Reporter: “Question: Do you know officer 

whether there was any plan approved by the police 
prior, as to what the people should do in the event of 
a sit-in?”

The Court: The objection is well taken.



96

Mr. Nelson: I would like to clear up the question. 
So without re-stating the question I wanted him to tell 
me whether there was any plan approved by the police 
as to what store managers of stores such as McCrory’s 
should do in the event of a sit-in. That was my ques­
tion.

The Court: Same objection and same ruling.
Mr. Nelson: Reserve a bill making the question and 

the answer and the ruling part of the bill.
Mr. Nelson: We have no further questions.”

[fol. 87] As will be seen from the above testimony counsel 
was attempting to show that McCrory’s 5 and 10 Cents 
Store, 1005 Canal Street, New Orleans, Louisiana, through 
their Manager, Mr. Wendell Barrett, had met with Man­
agers of other department stores in New Orleans, and 
had met with members of the New Orleans Police Depart­
ment, in an effort to formulate a plan or procedure to 
follow in the event of “sit-in” demonstrations, and that 
this was done in furtherance of the State’s policy of forced 
segregation.

That the State, through the Assistant District Attorney 
objected to this character of testimony being offered. That 
the court overruled the said objections made by counsel 
for the defendants to which ruling of the court, counsel 
aforesaid then and there objected and reserved a formal 
bill of exceptions, making the testimony of Mr. Wendell 
Barrett and also the testimony of Captain Lucien Cutrera, 
and the questions and answers asked and objected to by 
counsel, for the State, and the ruling of the court.

To the action of the Court in not allowing counsel to 
pursue the above line of questioning, counsel now perfects 
his said Bill of Exceptions and makes a part of this his 
formal bill of exceptions the entire testimony of Mr. Wen­
dell Barrett given on the hearing of the motion to quash, 
and the entire testimony of Captain Lucien Cutrera given 
on the trial of the case on its merits, and the entire record 
in these proceedings, including all testimony heard and 
evidence offered, and first submitting this his Bill of Ex­
ceptions to the District Attorney, now tenders the same 
to the Court and prays that the same be signed and sealed



97

by the Judge of this Court, pursuant to the Statute in 
such case made and provided, which is done accordingly 
this 10th day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 88]
Per Curiam to Bill of Exception No. 2

As will be seen from a reading of the statute under 
which defendants were prosecuted (L.S.A.-R.S. 14:59(6)), 
the inquiry sought to be established by defendants was 
irrelevant and immaterial to any of the issues presented 
by the bill of information and the charge contained therein.

L.S.A.-R.S. 15:435 provides:
“The evidence must be relevant to the material is­

sues.”

L.S.A.-R.S. 15:441 reads in part as follows:
“Relevant evidence is that tending to show the com­

mission of the offense and the intent, or tending to 
negative the commission of the offense and the intent.”

L.S.A.-R.S. 15:442 states, in p a rt:
“The relevancy of evidence must be determined by 

the purpose for which it is offered.”
“A trial judge must be accorded a wide discretion 

whether particular evidence sought to be introduced 
in criminal prosecution is relevant to case. L.S.A.-R.S. 
15:441.”

State v. Murphy, 234 La. 909, 102 So. 2d. 61.
“Exclusion of testimony on grounds of irrelevancy 

rests largely on discretion of trial judge.”
State v. Martinez, 220 La. 899, 57 So. 2d. 388.
“In order to be admissible, evidence must be both

(1) relevant or material, and (2) competent.
Evidence is competent when it comes from such a 

source and in such form that it is held proper to admit 
it.



98

Evidence is relevant when it is persuasive or indica­
tive that a fact in controversy did or did not exist 
[fol. 89] because the conclusion in question may be 
logically inferred from the evidence. The criterion of 
relevancy is whether or not the evidence adduced tends 
to cast any light upon the subject of the inquiry.” etc.

Wharton’s Crim. Ev. (12th Ed.) Vol. 1, p. 283, 
Sec. 148.

The bill is without merit.
New Orleans, Louisiana, 10th day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 90]
I n t h e  C r im in a l  D istrict  Court 

P a rish  of Orleans

[Title omitted]

B il l  of E x ceptio n  No. 3 and P er  C uriam  T h e r e o n —  
January 10, 1961

Be It Remembered that at the conclusion of the trial 
of this case the Judge found each defendant guilty of the 
offense set out in the Information on which each defendant 
was being tried.

That on a subsequent day of the term of this Court, be­
fore any judgment was entered on the said verdict rendered 
by the trial judge finding each defendant guilty, and before 
any sentencing had been imposed defendants, through coun­
sel, filed a Motion for a New Trial, the said Motion for a 
New Trial reading as follows:

Motion for New Trial, See Tr. 76, et seq.

[fol. 91] The Court, after hearing the said Motion of the 
defendants for a New Trial, denied and overruled the 
same, and to such action of the court, counsel for the de­
fendants then and there objected and reserved a formal 
Bill of Exception and counsel now perfects this his formal



99

bill of exceptions to the overruling of the Motion for a 
New Trial and makes a part hereof the bill of information, 
the motion to quash, the State’s answer to the Motion to 
Quash, all testimony and evidence offered on the hearing on 
the motion to quash, the court’s written ruling overruling 
and denying the motion to quash, all evidence offered and 
testimony heard on the trial of the case on its merits, the 
motion for new trial, the court’s ruling on the motion for 
a new trial, and the entire record in these proceedings, and 
first submitting this his Bill of Exceptions to the District 
Attorney now tenders the same to the Court and prays 
that the same be signed and sealed by the Judge of this 
Court, pursuant to the Statute in such case made and pro­
vided, which is done accordingly this 10th day of January, 
1961.

J. Bernard Cocke, Judge.

[fol. 92]
Per Curiam to Bill of Exception No. 3

The bill was reserved to the denial of defendants’ motion 
to a new trial.

Insofar as the written reasons for denying the motion to 
quash are applicable to defendants’ motion for a new trial 
the Court submits same as its reasons for denying the said 
motion.

A reading of the statute under which defendants were 
prosecuted (L.S.A.-B.S. 14:59(6)), is sufficient refutation 
to the other allegations of the motion for a new trial, as 
the matters contended for were irrelevant and immaterial 
to any of the issues present in the proceedings.

As no request was made of the Court to charge itself on 
the legal questions raised by defendants in the motion for 
a new trial, defendants cannot be heard to complain.

The Court was convinced beyond all reasonable doubt, 
that each and every element necessary for conviction was 
abundantly proved.

The appellate court is without jurisdiction to pass upon 
the sufficiency of proof.

New Orleans, Louisiana, 10th day of January, 1961.
J. Bernard Cocke, Judge.



[fol. 93]
I n t h e  Cr im in a l  D istrict  C ourt 

P a rish  of Orleans

[Title omitted]

B il l  of E x ceptio n  No. 4 and P er C u riam  T h er eo n —  
January 10,1961

Be It Remembered that the conclusion of the trial of 
this case the Judge found each defendant guilty of the 
offense set out in the information on which each defendant 
was being tried.

That on a subsequent day of the term of this court, before 
any judgment was entered on the said verdict rendered 
by the trial judge finding each defendant guilty, and before 
any sentence had been imposed defendants, through coun­
sel, filed a Motion in Arrest of Judgment, the said Motion 
in Arrest of Judgment reading as follows:

Motion in Arrest of Judgment, See Tr. p. 80 et seq.

[fol. 94] The Court, after hearing the said Motion in 
Arrest of Judgment of the defendants, denied and over­
ruled the same, and to such action of the court, counsel 
for the defendants then and there objected and reserved 
a formal Bill of Exception and counsel now perfects this 
his formal bill of exceptions to the overruling and denying 
of the said Motion in Arrest of Judgment, and makes a 
part hereof, the bill of Information, the motion to quash, 
the State’s answer to the Motion to Quash, all the testimony 
heard and evidence offered on the hearing of the Motion to 
Quash, the Court’s written ruling overruling and denying 
the motion to quash, all evidence offered and testimony 
heard on the trial of the case on its merits, the Motion in 
Arrest of Judgment, the Court’s ruling on the motion in 
arrest of judgment, the motion for a new trial, the court’s 
ruling on the motion for a new trial, and the entire record 
in these proceedings, and first submitting this his Bill of 
Exceptions to the District Attorney, now tenders the same 
to the court and prays that the same be signed and sealed 
by the Judge of this Court, pursuant to the Statute in such

100



101

ease made and provided, which is done accordingly this 
10th day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 95]
Per Curiam to Bill of Exception No. 4

This bill was reserved to the denial of defendants’ mo­
tion in arrest of judgment.

Insofar as the written reasons for denying the motion to 
quash an applicable to defendants’ motion in arrest, the 
court submits same as its reasons for denying the motion 
in arrest of judgment.

The remaining contentions of defendants have no place 
in a motion in arrest of judgment, and were matters of 
defense.

There is no merit to defendants’ bill.
New Orleans, Louisiana, 10th day of January, 1961.

J. Bernard Cocke, Judge.

[fol. 96]
I n t h e  Cr im in a l  D istrict  C ourt 

P a rish  of Orleans

[Title omitted]

M otion  for A ppea l  and O rder T h ereo n—January 10, 1961
And Now Into Open Court come the defendants, Rudolph 

Lombard, Oretlia Castle, Cecil Carter, Jr., and Sydney L. 
Goldfinch, Jr., through undersigned counsel, and on sug­
gesting to the Court that the record herein shows error to 
their prejudice, a miscarriage of justice and same con­
stitutes a violation of their constitutional rights, and that 
they are desirous to appeal to the Honorable The Supreme 
Court of the State of Louisiana; and on further suggesting 
to the Court that each defendant be admitted to bail pend­
ing said appeal on each furnishing bond in an amount fixed 
by this Honorable Court, conditioned as the law directs;



102

Wherefore, they pray that they be granted a suspensive 
appeal to the Honorable the Supreme Court of the State 
of Louisiana, returnable in accordance with law, and fur­
ther that they each be admitted to bail pending said appeal 
on each furnishing bond in an amount to be fixed by this 
Honorable Court as the law directs.

Rudolph Lombard, Oretha Castle, S. Langston Gold­
finch, Cecil W. Carter, Jr.

John P. Nelson, Jr., Robert F. Collins, Nils R. Douglas, 
Lolis E. Elie, By: John P. Nelson, Jr.

O r d e r
Let a suspensive appeal be granted in this case on behalf 

of the defendants, Rudolph Lombard, Oretha Castle, Cecil 
Carter, Jr., and Sydney L. Goldfinch, Jr., to the Supreme 
Court of the State of Louisiana, and let the return date be 
the 1st., day of February, 1961; and further that they each 
be admitted to bail in the sum of Seven Hundred and 
Fifty Dollars with good and solvent security condition as 
the law directs; the bond be taken and sureties approved 
by the Criminal Sheriff for the Parish of Orleans, or by 
one of his lawful deputies.
New Orleans, La. Jan. 10,1961

J. Bernard Cocke, Judge.

[fol. 97]
I n  t h e  Cr im in a l  D istrict  C ourt 

P a rish  of Orleans

[Title omitted]

Transcript of Testimony
Testimony and notes of evidence taken on the trial of the 

above entitled and numbered cause on the 7th., day of De­
cember, 1960, before the Honorable J. Bernard Cocke, 
Judge Presiding.



103

A ppearances  :

Robert J. Zibilich, Esq., Assistant District Attorney, For 
the State.

John P. Nelson, Jr., Esq., Lolis E. Elie, Esq., Nils Doug­
las, Esq., Attorneys for defendants Sydney Langston Gold­
finch, Jr., Oretlia Castle, Joseph Lombard, Cecil W. Car­
ter, J  r.

Reported by:
Charles A. Neyrey, Official Court Reporter, Section “E ”.

[fol. 98] The Court: Is the State ready? 
Mr. Zibilich: Yes sir.
The Court: Is the Defense ready?
Mr. Nelson: Yes sir, we are ready.

R obert G l e n n  G raves, a witness for the State, after first 
being duly sworn by the Minute Clerk, testified as follows:

Direct examination.

By Mr. Zibilich:
Q. State your name please?
A. Robert Glenn Graves.
Q. Where do you live?
A. 6221 WainwTright Drive.
Q. By whom are you employed?
A. McCrorv-McClennan Corporation.
Q. Where are you employed?
A. McCrory’s 5 and 10 Cents Store, 1005 Canal Street.
Q. In what capacity?
A. Restaurant Manager.
Q. On the day in question, the 17th., of September, 1960, 

were you on duty on that day in McCrory’s Restaurant?
A. Yes sir, I was.
Q. What time did you come on duty?
A. Seven A. M.



104

Q. Were you there throughout the day until about 
10:30 or 11:00 in the morning?

A. Yes sir.
[fol. 99] Q. Did anything of an unusual nature occur be­
tween the hours of 10:00 and 11:00 in the morning?

A. Around about that time, I was in the main restaurant 
facing towards Burgundy by the cash register, by the main 
restaurant, and a man came from the side refreshment 
counter, I have charge of all the counters there, and he 
motioned to me and I went towards him and as I approached 
he said—

Mr. Nelson: I object.

Examination (resumed).

By Mr. Zibilich:
Q. Don’t say what he said. What did you do ?
A. I went to the side counter.
Q. What did you observe, if anything?
A. At the side counter there was seated two colored males 

and a colored woman and a white man.
Q. Do you see those people in the courtroom today?
A. Yes, they are seated over here.
Q. Were they the ones seated at that bench before the 

bar?
A. That is right.
Q. You are speaking of a counter and a main restaurant, 

are there more than one counter in that establishment?
A. Yes sir. They have a main restaurant that seats 210 

and we have a counter for colored that seats 53 and then we 
have a white refreshment bar that seats 24 and then we have 
two stand-up counters.

Q. The particular counter at which was seated the in­
dividuals you described, was that reserved for any particu­
lar people ?

A. I don’t know what you mean.

By the Court:
Q. By color?
A. Yes.



105

Examination (resumed).

By Mr. Zibilich:
[fol. 100] Q. For what?

A. For white patrons.
Q. Upon seeing these people, what did you do?
A. I went behind the counter and faced them and said to 

them, I am not allowed to serve you here. We don’t serve 
you here. We have to sell to you at the rear of the store 
where we have a colored counter. And then I waited for a 
reply.

Q. Did you get any?
A. No reply.
Q. WThat then did you do?
A. I closed the counter.
Q. How? Actually how?
A. Well, I considered it an emergency, unusual circum­

stances, and we have a sign for that purpose, and then I 
told the girl on the counter to close down.

By the Court:
Q. What does the sign say?
A. This counter is closed.
We displayed the sign to each one and said this counter 

is closed, and then we cut off the lights and told the girl, 
I told the girl to lock-up the money and that the counter was 
closed for business.

Examination (resumed).

By Mr. Zibilich:
Q. Did they actually lock-up the counter?
A. Yes sir.
Q. What did the four defendants do?
A. They sat there.
Q. Did you inform anyone about this ?
A. I started back to the main restaurant and motioned 

to one of the girls that approached me, and told her to 
contact the store manager Mr. Barrett and then I went 
back to the main restaurant and stood by there.



106

[fol. 101] Q. Did you do any thing further about calling 
the police ?

A. As a matter of routine procedure I called the police, 
I think it is Emile Poissnot. That was the usual routine.

Q. This McCrory is located at 1005 Canal Street!
A. Yes sir.
Q. Is that in the city of New Orleans?
A. Yes sir.
Q. I tender the witness. Answer Mr. Nelson and Mr. 

Elie.

Cross examination.

By Mr. Nelson:
Q. Mr. Graves, as a matter of routine procedure you 

called the police, Mr. Emile Poissnot!
A. Yes sir.
Q. Who is he!
A. A detective.
Q. Did you know his name before you called him!
A. Yes sir, for some time.
Q. Do you call him because he is a friend of yours!
A. I called him because I knew him, and it was customary 

in any kind of emergency to call the police.
Q. When you were confronted with this situation you 

considered this an emergency sir!
A. Yes.
Q. Had you planned what you all were going to do to 

take care of this particular emergency!
A. Any emergency, fire or drunk or any possibility.
Q. I am talking about when Negroes sit at a white coun­

ter, did you plan what you were going to do!
A. No particular plan. They had a sit-in a week and a 

half before that.
[fol. 102] Q. It had been discussed?

A. We—everybody knew about it.
Q. Did you not plan, or make plans as to what was going 

to be done?
A. Not any particular plan.
Q. Did you make any particular plans?
A. It came under the same procedure in case of any 

emergency.



107

Q. Did you have a consultation with Mr. Barrett before 
you called the police?

A. That particular day?
Mr. Nelson: At this time I would like to move for a 

sequestration of all witnesses.
The Court: All witnesses in this case on trial both for 

the state and the defense step outside in the corridor to 
await your being called.

Examination (resumed).

By Mr. Nelson:
Q. Did you talk to Mr. Barrett before the police were con­

tacted?
A. That particular day?
Q. Yes sir.
A. I had spoken to him.
Q. Did you speak to him after the defendants were seated 

at the counter or before they were seated there?
A. About what?
Q. About calling the police ?
A. I  contacted my clerk and let her call the officers.
Q. Did you call before—did you call the police before or 

after you called Mr. Barrett?
A. I called the police after I notified Mr. Barrett.
Q. Did you do that on your own initiative?

[fol. 103] The Court: I won’t permit you to go into that. 
It is not relevant.

Whether these people had a right to be there or didn’t 
have a right to be there, or whether they were there by 
accident or lack of intention contrary to the rules of the 
establishment—what happened between this man there as 
a matter of policy is of no consequence, it is irrelevant and 
immaterial. Let’s go on to something else.

Mr. Nelson: That includes any plan he may have had 
with the police ?

The Court: Let me point this out. I speak of knowledge. 
In the neighborhood where I live, Canal Boulevard and 
Mouton Street there are prowlers each night. My neighbors 
and myself get together and propose to meet in the front



108

living room of my home, we meet and agree to patrol the 
neighborhood. Consequently we accost the prowler and we 
have to shoot him because he comes in my premises. By 
analogy that is the same idea.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Graves, these defendants were not creating any 

disturbance by loud talking while they were seated at the 
counter?

A. Not while I was there. They didn’t say anything.
Q. Insofar as you observed they were being quiet?
A. They had nothing to say.
Q. Were they well dressed?
A. I didn’t observe that particularly, all this happened 

in about a period of five minutes and I didn’t particularly 
notice how they were dressed.

Q. Mr. Graves, the only reason why you closed the coun­
ter was that these defendants were Negroes and they were 
sitting there ?

A. I considered it an unusual circumstance and I closed 
it, I considered it a reason for closing the counter. I took 
[fol. 104] it on myself because I was in charge and I closed 
the counter.

The Court: You got your answer now go on to something 
else.

Mr. Nelson: Your Honor before I ask this man some 
questions I would like to acquaint the court the nature of 
the questions so the court can rule. I would like to ask 
this man concerning the effect of McCrory’s on interstate 
commerce.

The Court: He is going to ask you certain questions and 
you are not to answer until I tell you to do so.

Examination (resumed).

By Mr. Nelson:
Q. How long have you been employed by McCrory’s, 

Mr. Graves?



109

The Court: I don’t see the relevancy of that.
Mr. Nelson: Did the state object?
The Court: The State doesn’t have to object.
Mr. Nelson: Then the court— Your Honor I don’t—
The Court: I interject an objection. I don’t want to sit 

here and hear a lot of testimony—
Mr. Nelson: That is why I wanted to tell the court what 

I intended to ask or get from Mr. Graves.
The Court: He is not going to answer the questions.

By Mr. Nelson:
Q. Do you have any idea of what percentage of goods 

that is purchased by McCrory’s and used in your depart- 
[fol.105] ment comes from outside the State of Louisiana?

The Court: Don’t answer the question.
Mr. Nelson: And for the purpose of the record this is to 

establish the interstate commerce evidence.
The Court: The Supreme Court of the United States 

didn’t go that far.
Mr. Nelson: I beg your pardon.
The Court: I said that in their decision of the other day 

the Supreme Court of the United States didn’t go that far.
Mr. Nelson: In connection with the ruling of the court 

like to reserve a bill of exception and making part of the 
bill my question and the Court’s ruling.

Cross examination.

By Mr. E lie:
Q. Mr. Graves in answer to one of Mr. Zibilich’s ques­

tions, you say that when the defendants sat at the counter 
you told them that you were not allowed to serve them. 
Is that correct sir?

A. Can I answer that?
The Court: Yes.
A. Yes.
Q. Will you tell the court why you were not allowed to 

serve them?



110

Mr. Zibilich: I don’t know whether that is relevant? 
[fol.106] The Court: It is not material.

Mr. E lie: Your Honor please—
The Court: The objection is sustained.
Mr. Elie: I think it is material, because if Mr. Graves 

felt there was some State policy that prevented him from 
serving these defendants this is a clear state action. I 
think the question is relevant.

Mr. Zibilich: I think that was covered by the motion to 
quash and the court has ruled on that.

The Court: The objection is sustained.
Mr. Nelson: Reserve a bill of exception Your Honor 

and make a part of it the question, the court’s ruling and the 
sustaining the objection, and further make that on the part 
of all defendants.

By the Court:
Q. Let me ask you a few questions. You refer to the 

fact that these defendants took seats at the main restaurant 
or dining room or in the lunch room?

A. No sir, this was at a side counter.
Q. What does that consist of that side counter towards 

Burgundy?
A. It is on the opposite side of the store. There are 24 

stools and it is a straight counter and we serve a variety 
of foods.

Q. Are there any signs of any kind to indicate what the 
circumstances are under which you would serve, whether 
you serve white or colored or both?
[fol. 107] A. No sir.

Q. Now how long has that counter been a white counter?
A. Approximately since 1938.
Q. Since ’38. And you say that in another part of the 

store you have a counter to serve colored folks?
A. Yes sir that is right.
Mr. Nelson: I am going to interpose an objection. This 

man, I can’t quite figure out his direct examination, and 
therefore I am going to object to the leading type of ques­
tions being asked by the Court.



I l l

The Court: Your objection is overruled. I know what I 
am doing.

Mr. Nelson: To which we reserve a bill of exceptions 
making the objection and the question and the ruling of the 
court all part of the bill.

The Court: Reread the question and the answer.
The Reporter: “Question: Since ’38. And you say that 

in another part of the store you have a counter to serve 
colored folks? Answer: Yes sir that is right.”

Examination (resumed).

By the Court:
Q. And you informed these defendants there was a coun­

ter for colored folks somewhere else in the store?
A. Yes sir.
Q. And they made no reply?
A. No reply.
Mr. Nelson: Same objection for the same reason.

[fol. 108] Mr. Nelson: I objected your Honor.
The Court: Same ruling by the court.
Mr. Nelson: Same objection and reserve a bill of ex­

ception making the objection and the ruling of the court as 
well as the question and answer part of the bill.

Mr. W en d e l l  B abrett, a witness for the State, after being 
first duly sworn by the Minute Clerk, testified as follows:

Direct examination.

By Mr. Zibilich:
Q. State your name please?
A. Wendell Barrett.
Q. Where do you live Mr. Barrett?
A. 4934 Reed Boulevard.
Q. By whom are you employed?
A. McCrory-McClellan Corporation.
Q. Were you employed by the same corporation on the 

17th., of September, 1960?



112

A. I was.
Q. In what capacity were you employed there on the 

17th., of September of this year?
A. Store manager.
Q. Where is that store?
A. 1005 Canal Street.
Q. Is that in the city of New Orleans?
A. New Orleans.
Q. What kind of store is that?

[fol. 109] A. A variety of merchandise.
Q. Do you have any restaurants or counters there?
A. Yes sir.
Q. How many restaurants or counters for serving food 

does it have ?
A. Let me see. There are four.
Q. On this particular day, the 17th., of September, 1960, 

were you on duty as the manager of that particular store on 
that particular day?

A. I  was.
Q. Were you there between the hours of 10 and 11 A. M.?
A. I  was.
Q. Now I want to ask you to look at these defendants 

seated on the bench before the bar and I ask you whether 
or not you saw them on that day in that store?

A. I  did.
Q. About what time and where?
A. About 10:30 at the side refreshment counter.
Q. What counter?
A. On the Burgundy Street side of the building.
Q. What if anything was anybody doing when you saw 

these four defendants at that counter, in that vicinity?
A. When I saw the four defendants they were sitting at 

the counter by themselves and the counter was closed up 
and there were no other people there.

Q. Were there any police officers present in the vicinity 
of these defendants ?

A. No.
Q. Did any come on the scene?
A. A number came on the scene shortly afterwards.
Q. Do you know the names of any of them?

[fol. 110] A. Major Reuther and Emile Poissnot.



113

Q. Was there a Cutrera?
A. Yes.
Q. What if anything did you do or say to the defendants ?
A. In view of the fact the department was closed I went 

behind the counter and stood in front of the defendants and 
showed them the sign reading this department is closed 
and I asked them if they could read the sign and then I 
informed them that what the sign said was correct, the 
department was closed and requested that they leave the 
department.

Q. What if anything did the defendants say?
A. Didn’t say anything, they just sat there.
Q. Did they do anything?
A. Didn’t do anything.
Q. Did you'Say that in a loud voice?
A. I said it in a loud voice so that it could be heard by 

anyone in the immediate vicinity.
Q. How far were you from the defendants ?
A. Standing right in front of them about three feet.
Q. Was anyone else present that you knew, any police 

officers?
A. Major Eeuther, Emile and some of the other officers 

but I don’t recall all their names.
Q. Then what if anything happened with respect to these 

defendants?
A. Major Eeuther asked the defendants if they heard 

what I said and they didn’t make any reply, that I could 
hear, and he reemphasized the fact the department was 
closed. He also pointed to the sign as I recall. He asked 
one of the defendants on the end who was the leader—

Mr. Nelson: I  object.
[fol. I l l ]  The Court: What is your objection?

Mr. Nelson: This is hearsay.
The Court: What is hearsay—what the defendants re­

plied?
Mr. Nelson: What the police officer said.

By the Court:
Q. I understood the police officer spoke to one of the 

defendants or to all of these defendants.



114

A. That is what I said.
Q. Any replies given by either one of the defendants to 

the statement in question is not hearsay.
A. He asked the defendant on the end.
Q. Suppose you answer my question. Was there any 

reply to the question propounded by the officer?
Mr. Nelson: I object to the leading question.
The Court: Objection overruled.
Mr. Nelson: Reserve a bill of exception making the ques­

tion, the objection and the ruling of the court part of the 
bill.

By the Court:
Q. You understood my inquiry. You started to say one 

of the police officers addressed a question to one or several 
of the defendants ?

A. That is correct.
Q. Did either one of the defendants reply to questions 

asked of them?
A. Yes sir.
Q. Proceed.

[fol. 112] Mr. Nelson: I am going to object to the ques­
tion.

The Court: The objection is overruled.

Examination (resumed).

By Mr. Zibilich:
Q. Relate what was said and who answered and what 

was said?
A. Major Reuther asked the defendant on the end there 

who was the leader of the group—
Q. Who was the defendant?
A. The two colored men on the end and they pointed to 

the white man.
Mr. Nelson: I object Your Honor, that is all immaterial.
The Court: You may object to all of this testimony. The 

state has to prove under the very statute here, under the



115

very wording of the statute the intentionally taking of pos­
session, therefore anything is relevant to show that it was 
no accident, or the fact that they didn’t intend to remain, 
or that they were just passing through and their feet hurt 
and they wanted to rest. The state has to prove and they 
have a right to show it was an intentional taking.

Mr. Nelson: Your Honor, once the counter was closed it 
was intentional to stay there. The sign was already up.

Respectfully object and reserve a bill of exception making 
the objection and the ruling and the question part of the 
bill.

By the Court:
Q. Mr. Barrett, you said something about the two defen­

dants on the end?
A. The two colored men on the end.

[fol. 113] Q. What is your name on the end?
Mr. Nelson: Object Your Honor. Are you addressing the 

defendants and asking them questions ?
The Court: I am asking him his name, so the record can 

show who he is.
Mr. Nelson: Respectfully reserve a bill of exception to 

the court’s asking the defendants their names.
The Court: All right. I will ask you his name. Will you 

give me his name ?
Mr. Nelson: Yes sir.
The Court: Well what is his name?
Mr. Nelson: Lombard.
The Court: The one on the end?
Mr. Nelson: Yes sir.
The Court: What is the second man’s name?
Mr. Nelson: Cecil Carter is the second one.
The Court: Let the record show that the defendants iden­

tified by the witness were later identified by name.

[fol. 114] Examination (resumed).

By Mr. Zibilich:
Q. What did they reply?



116

A. They said the white man on the end was the leader 
of the group. Major Reuther asked the white man if what 
they said was correct and I heard the white man say he was 
the leader.

Mr. Nelson: Object as being leading?
The Court: The objection is overruled.
Mr. Nelson: Reserve a bill and make a part of the bill 

the necessary ingredients.
The Court: Mr. Barrett you listen to my ruling. Don’t 

listen to either one of the other gentlemen, you listen to me.

Examination (resumed).

By Mr. Zibilich:
Q. What did Major Reuther say to the white man?
A. He asked the white man if he was the leader and he 

said he was the leader. He asked him what was the purpose, 
why they were sitting there and the white man said they 
were going to sit there until they were going to be served.

The Court: Mr. Nelson, the white man what is his name?
Mr. Nelson: You know his name.
The Court: I know his name, but what is his name for the 

record Mr. Nelson?
Mr. Nelson: Goldfinch.
The Court: The witness identified Goldfinch.

[fol. 115] By Mr. Zibilich:
Q. Was there any more conversation between the offi­

cers or you and any of the defendants after that?
A. Major Reuther told the white man, or spoke to the 

group that he would give them two minutes to leave.
Mr. Nelson: I didn’t want to interrupt the witness, but 

I want to object.
The Court: I wish you would stand on that statement.
Mr. Nelson: I just want the record to show the bill 

reservation.
The Court: Unless the stenographer is somewhere out 

of town he heard it.



117

Mr. Nelson: May I make a statement about the police 
officers. I object to this type of questions. It may be ad­
missible, this type of questioning under some circum­
stances—

The Court: You made a lot of objections. You have 
been giving us a lot of objections. The objection is either 
good or not good all along the same line. Let’s consider 
your objection to all this character of testimony. The same 
ruling and the same bill applies.

Examination (resumed).

By Mr. Zibilich:
Q. After Reuther gave them this period of time, did 

they leave!
A. They didn’t. They sat there.
Q. Then what took place in your presence!
A. The time ran out and the police officers led them out 

the door.
Q. I tender the witness.

[fol. 116] Cross examination.

By Mr. Nelson:
Q. What time of the day was your counter closed at 

McCrory’s!
A. About 10:30.
Mr. Zibilich: Object. Immaterial.
The Court: Your objection is overruled.

Examination (resumed).

By Mr. Nelson:
Q. Have you ever closed that counter at 10:30?
A. I may have closed it at 10:30. It is closed under 

any sort of disturbance.
Q. In other words if three negroes came up to that 

counter at 10:30 you would close it?
A. If three negroes walked up there I would tell them



118

we had a colored counter in the back, because they might 
be passing through from the North and not understand 
Southern customs.

Q. Is that a usual—
A. I might mention that is a common procedure—
Q. I will ask the questions. Express your social prin­

ciples at another place.
The Court: Complete your answer whether he objects 

to it or not.
A. We have colored people come in sometimes and they 

don’t understand. It is a relatively common thing.

Examination (resumed).

By Mr. Nelson:
Q. Do you have any signs up!
A. No signs sir.
Q. Now it is a fact Mr. Barrett these defendants were 

[fol. 117] asked to leave only because of the fact they 
were negroes?

Mr. Zibilich: Object to that.
A. One of them is not a negro.
The Court: I think that question is legitimate.

Examination (resumed).

By Mr. Nelson:
Q. They were asked to leave because of the fact and 

only because of the fact they were negroes?
A. They weren’t all negroes. One was a white man. We 

asked him to leave too.
Q. The three negroes, you asked them to leave only 

because of the fact they were negroes?
A. The department was closed and they were asked to 

leave. They were asked to leave because the department 
was closed.

Q. But because they were negroes?



119

A. They were negroes.
Q. They weren’t being loud or boisterous?
Mr. Zibilich: I object to that. They aren’t charged with 

disturbing the peace.
The Court: Under the circumstances if he wants to put 

it in evidence I see no objection.
Mr. Nelson: What is the ruling of the court?
The Court: I see no objection.

Examination (resumed).

By Mr. Nelson:
Q. You may answer that question.
A. No.
Q. They were sitting there quietly?

[fol. 118] A. Yes.
Q. Do you know Emile Possinot?
A. Yes sir.
Q. How often does be go to McCrory’s on official duty?
A. Often we call him and I might say we call him quite 

often for shop lifters, pick pockets, somebody may lose 
their wallet, he is our contact with the police department.

Mr. Nelson: I would like to ask Mr. Barrett some ques­
tions dealing with whether this business is engaged in in­
terstate commerce.

The Court: Don’t answer until I rule.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett you are the manager of McCrory’s store 

in New Orleans?
A. Yes sir.
Q. And that is one of a chain of stores throughout the 

United States?
A. Yes sir.
Q. Do you have any idea of what percentage of the 

business, the purchases of McCrory’s comes from outside 
the state of Louisiana?



120

Mr. Zibilich: Object to that question. It is immaterial.
The Court: The objection is sustained.
Mr. Nelson: Reserve a bill of exception making a part 

of the bill the question, the objection, and the ruling of 
the court.

Examination (resumed).

By Mr. Nelson:
Q. Do you have any opinion as to the percentage of 

purchases that go to the lunch counters that come from 
[fol. 119] outside the State of Louisiana?

Mr. Zibilich: Same objection.
The Court: Same ruling.
Mr. Nelson: And reserve a bill of exception making the 

question, the answer and the ruling of the court part of 
the bill.

I have no further questions.

By the Court:
Q. Am I correct in my recollection that Mr. Goldfinch 

stated that they were going to remain until they were going 
to be served, is that correct?

A. Yes sir.
Q. Is that what he stated to you and the police officers?
A. Yes sir.

Examination (resumed).

By Mr. Nelson:
Q. How many departments do you have in McCrory’s, 

approximately ?
A. Must be about 20, 15 or 20 I would say.



121

C apta in  L u c ie n  C utrera , a  witness for the State, after 
first being duly sworn by the Minute Clerk, testified as 
follows:

Direct examination.

By Mr. Zibilicb:
Q. State your full name.
A. Captain Lucien Cutrera.
Q. By whom are you employed?
A. The New Orleans Police Department.
Q. In what capacity?
A. Commanding Officer of the First District Station.
Q. Were you so employed and in the same capacity on 

[fol. 120] the 17th, of September, 1960?
A. Yes I was.
Q. In connection with your duties as a police officer did 

you have occasion on that day to investigate any occur­
rence or alleged sit in demonstration that would have oc­
curred on Canal Street?

A. Yes sir I did, at McCrory’s.
Q. Did you go to that store as a result of this investi­

gation ?
A. I did.
Q. Did you go alone or were you accompanied by some­

one?
A. Desk Sergeant Mickey Rizzutto and followed by Tech­

nician Bernard Fruchtzweig.
Q. At what time of the day or night did you arrive?
A. Approximately 10:35 A. M.
Q. Where is McCrory’s located?
A. Iberville and Burgundy.
Q. Is that in the city of New Orleans?
A. In runs through the block. 1005 Canal Street is the 

address.
Q. I ask you to look at the four defendants sitting on 

the bench and tell me whether or not you saw those de­
fendants in McCrory’s at that time and date?

A. Yes sir, I did.
Q. You saw all the defendants there?



122

A. Yes sir.
Q. Where were they the first time you came in the store? 
A. Seated at the side lunch counter.
Q. Where is that lunch counter located?
A. In McCrory’s store.
Q. Any particular street side of the store, if you recall? 
A. Can’t recall exactly.
Q. Is it in the back?
A. Towards the back of the store about the middle.
Q. Anyone else around the lunch counter any civilians 

or police officers?
[fob 121] A. Yes detective Poissinot, Patrolman Ray­
mond Gonzales, saw the Manager of the store—

Q. Did you meet a man called Barrett?
A. Yes sir, I did.
Q. Would you recognize Barrett if you saw him again?
A. Yes sir.
Q. Was he the man that just left the witness stand?
A. I didn’t see who left.
(Mr. Barrett was called into the courtroom for the pur­

pose of identification and then left the courtroom.)
Q. Did you see Mr. Barrett today?
A. Yes sir.
Q. Did you see him in the courtroom?
A. He is the gentleman you just called in.
Q. Did you see that same gentleman, Mr. Barrett, at 

the store that time and day?
A. Yes sir, I did.
Q. Where was Mr. Barrett when you saw him?
A. Mr. Barrett was standing near the counter and I 

was introduced to him by Detective Poissinot.
Q. Did either you or Barrett say anything to the de­

fendants ?
A. Mr. Barrett went behind the counter and told them 

the counter was closed and that he didn’t wish to serve 
them and he asked them to leave the store.

Q. Did they leave?
A. No, they said—
Mr. Nelson: I object your Honor.
The Court: Objection is overruled.



123

[fol. 122] Mr. Nelson: Reserve a bill of exception.

Examination (resumed).

By Mr. Zibilich:
Q. Were you at the lunch counter at all times?
A. Yes sir, I was.
Q. At any time when you were there did the defendants 

get up and leave?
A. Not until we took them out.
Q. What lead up to your taking them out?
A. After Mr. Barrett asked them to leave the store—
Mr. Nelson: Object to what Mr. Barrett said.
The Court: The objection is overruled.
Mr. Nelson: Reserve a bill of exception.

Examination (resumed).

By Mr. Zibilich:
Q. Proceed.
A. Major Reuther and I were standing immediately to 

the rear of the four defendants. I was with Major Reuther 
and he asked if they all understood Mr. Barrett’s state­
ment. He asked each one individually and he then told 
them they had one minute to leave the store.

Q. Did they leave?
A. They did not leave the store, and actually they were 

not taken out until about 6 minutes passed.
Q. They were placed under arrest?
A. Yes sir.
Q. Who placed them under arrest?
A. Major Reuther and I.

Cross examination.

By Mr. Nelson:
Q. Captain did you take part in any conference with the 

[fol. 123] District Attorney and tell the District Attorney 
the story you are telling today?



124

A. No.
The Court: I didn’t understand the question.

Examination (resumed).

By Mr. Nelson:
Q. I asked did he take part in any conference concerning 

his testimony that he was going to give, with the district 
attorney ?

A. I spoke with Mr. Zibilich outside just before we came 
in.

Q. Was Mr. Barrett present?
A. No.
Q. Have you talked with Mr. Barrett since this incident 

happened?
A. No, I haven’t.
Q. Have you talked with Mr. Barrett concerning the 

statements made by Mr. Barrett since the incident hap­
pened?

A. Since the arrest?
Q. Yes.
A. No.
Q. Captain, prior to any instructions being given to any­

one, did you and Mr. Barrett and Mr. Graves have a con­
ference outside the presence of the defendants?

A. I spoke with Mr. Barrett. I don’t know Mr. Graves 
at all before the arrest or before we spoke to the defen­
dants.

Q. This was outside the presence of the defendants?
A. It was right by the lunch counter.
Q. Who else was present?
A. Detective Poissinot and Patrolman Gonzales as I  re­

member.
Q. Now, who had a law book during that particular con­

ference?
The Court: Ask him first if there was a law book.



125

Examination (resumed).

By Mr. Nelson:
[fol. 124] Q. AVas there a law book present?

A. Not that I know of.
Q. AVho decided what law to charge these people under?
Air. Zibilich: I object to that.
The Court: The objection is well taken.

Examination (resumed).

By Air. Nelson:
Q. AVho decided what statement—
The Court: Ask him first whether it was decided to 

make any statement. That is improper cross-examination.

Examination (resumed).

By Mr. Nelson:
Q. Statements were made by Air. Barrett to these de­

fendants ?
A. Yes sir.
Q. You testified to what you heard Air. Barrett say. Did 

you tell Air. Barrett what to tell these defendants?
A. I didn’t tell him the exact words to say. He asked 

me what to do.
Q. Now, did you tell Air. Barrett—
The Court: You asked the question and you got your 

answer.
Air. Nelson: Yes, I am asking him the question.
The Court: I am running this show. You cut the wit­

ness off. You ask a question and then you cut the witness 
off.

Mr. Nelson: I am asking the question so as not to get 
any hearsay in the record and I certainly have a right to 
that.

I asked him what he said, that is all Judge.



126

The Court: He is trying to answer you but you all want 
[fol. 125] to cut him off.

Mr. Nelson: Because he is giving hearsay evidence.
The Court: You take any bills of exception you want 

but I am still going to let this witness testify. Bead the 
question and you answer the question.

The Reporter: “Question: You testified to what you 
heard Mr. Barrett say. Did you tell Mr. Barrett what to tell 
these defendants?” “Answer: I didn’t tell him the exact 
words to say. He asked me what to do.”

By the Court:
Q. Now complete your answer.
A. Mr. Barrett had told me he wanted these people out 

the place.
Mr. Zibilich: I didn’t hear that part of the answer.
A. Mr. Barrett had said he wanted the people out of the 

place, that he wanted them away from the lunch counter. 
I asked him if he had ordered them away and would he 
do so in our presence. That we must witness his statement 
to them that he didn’t want them in the place. Mr. Barrett 
said he was going to order them out the place and he went 
behind the counter and made the statement to them and 
while he was talking to them he showed them the sign 
that said that this counter was closed.

Examination (resumed).

By Mr. Nelson:
Q. Mr. Barrett said he wanted them out too?
A. Away from the counter and out the store.
Q. That is what he told them. Is that your testimony?
A. Yes.

[fol. 126] Q. That is what he told them?
A. As far as I recall it.
Q. Could there be any doubt in your mind?



127

A. There is no doubt in my mind that he wanted them 
away from there.

Q. That he wanted them away from the counter!
A. And the store.
The Court: You got your answer Mr. Nelson.

Examination (resumed).

By Mr. Nelson:
Q. And Mr. Emile Poisinot, this detective, isn’t it un­

usual for a place to call for a policeman by name!
A. I don’t know how Detective Poissinot received the 

complaint.
Q. Do you know why he was there!
A. I don’t know why or how he was called there.
Q. Was he the first policeman on the scene!

By the Court:
Q. Do you know whether he was or wasn’t!
A. I don’t know whether he was the first one.

Examination (resumed).

By Mr. Nelson:
Q. Do you know officer whether there was any plan ap­

proved by the police prior, as to what the people should 
do in the event of a sit-in!

A. I didn’t catch the question.
Mr. Zibilich: I object to it.
The Court: Read the question.
The Reporter: “Question: Do you know officer whether 

there was any plan approved by the police prior, as to 
what the people should do in the event of a sit-in!”
[fol. 127] The Court: The objection is well taken.

Mr. Nelson: I would like to clear up the question. So 
without restating the question I wanted him to tell me 
whether there was any plan approved by the police as to 
what store managers of stores such as McCrory should 
do in the event of a sit-in. That was my question.



128

The Court: Same objection and the same ruling.
Mr. Nelson: Reserve a bill making the question and the 

answer and the ruling part of the bill.
Mr. Nelson: We have no further questions.

Major E dward R euther, a witness for the state, after 
first being duly sworn by the Minute Clerk, testified as fol­
lows :

Direct examination.

By Mr. Zibilich:
Q. State your full name?
A. Edward M. Reuther.
Q. By whom are you employed?
A. The New Orleans Police Department.
Q. In what capacity?
A. As Supervisor of Districts.
Q. What is your rank?
A. Major.
Q. And Major were you so employed and in the same 

capacity on the 17th, of September, 1960?
A. I was.
Q. Were you on duty that day?
A. I was.

[fob 128] Q. Did you have occasion to investigate an oc­
currence or alleged occurrence at McCrory’s that morning? 

A. I did.
Q. Did you go to investigate?
A. I did.
Q. Did you go alone?
A. I went alone.
Q. Where is McCrory’s located?
A. 1005 Canal Street.
Q. Is that in the City of New Orleans?
A. Yes sir.
Q. I want you to look at the four defendants seated on 

the bench before the bar and tell me whether or not you



129

saw them in McCrory’s that morning of September 17th, 
I960!

A. Yes, I saw them.
Q. About what time did you arrive at McCrory’s?
A. About 10:35.
Q. What was the first thing you did on arriving?
A. When I first arrived I met Captain Cutrera of the 

First District and he told me—
Q. Don’t say what Captain Cutrera may have said. Did 

you do anything after that?
A. Yes sir, I approached these four people sitting at 

the counter and told them the manager had requested that 
they leave—

Mr. Nelson: I object.
The Court: Objection is overruled.
Mr. Nelson: Reserve a bill of exception.

Examination (resumed).

By Mr. Zibilich:
A. —and I told them they were violating the State law 

and if the manager insisted that they move we would have 
[fol. 129] to put them under arrest. I told each one in­
dividually. I asked them who was the leader of the group 
and the white boy said he was. So I again informed him 
in the presence of the manager that they were violating 
the City and State laws and if they didn’t move we would 
have to arrest them and he said—

Q. What did he say, you mean Mr. Goldfinch?
A. He told me we came for a purpose and if we don’t 

achieve our purpose we are willing to be arrested, and I 
told them they had one minute to go with his friends and 
they didn’t move so we phoned for the patrol wagon and 
about six minutes later it came and we told each one in­
dividually they were under arrest and then took them 
out and put them in the wagon.



130

Cross examination.

By Mr. Nelson:
Q. You heard the manager talking to them asking them 

to leave!
A. Yes sir.
Q. I have no further questions.

Technician B ebxakd F kuchtzweig , a witness for the 
State, after first being duly sworn by the Minute Clerk, 
testified as follows:

Direct exmaination.

By Mr. Zibilich:
Q. State your full name?
A. Bernard Fruchtzweig.
Q. By whom are you employed?
A. New Orleans Police Department.
Q. What capacity?
A. .Photographer.
Q. Were you so employed and in the same capacity on 

the 17th, September, 1960?
A. I was sir.

[fol. 130] Q. On that day, did you have occasion to go to 
McCrory’s Store on Canal Street?

A. Yes sir.
Q. Were you alone or in company with anyone?
A. I was alone when I went there.
Q. I want you to look at these four defendants seated 

on the bench and ask you whether or not you saw any or 
all of them at McCrory’s Store on that particular day?

A. Yes sir.
Q. You saw all of them?
A. Yes sir.
Q. What did you do?
A. I took some film, movie film.
Q. For about how long did you take film?
A. The film, it is approximately one minute and a half.



131

Q. Films of what?
A. Them sitting in on the counter.
Q. Did you see the defendants seated on the counter?
A. Yes sir.
Q. Did you bring that film in court today?
A. Yes sir.
Mr. ZMIkh: State would ask with the Court's per­

mission to have Officer Frnehtzweig show these ihns.
The Court: Any objection*
Mr. Nelson: No objection.
I would like the screen placed so the defendants can see i t  

[foL 131] The Court: They can see better than I can.

Examination (resumed).

By Mr. Zibilieh:
Q. While you were taking these pictures, did you take 

pictures of any police officers?
A. Well—
Mr. Nelson: I object it is a leading question.
The Court: Objection overruled.
Mr. Nelson: Reserve a bill of exception.
A. Yes sir.

Examination (resumed).

By Mr. Zibilieh:
Q. Would you name those?
A. Not offhand. I can’t name any offhand, no sir.
Q. Do you know any of them?
A. I know some of them. When I am shooting pictures 

I don’t watch who I am shooting.
(The film of defendants seated at the counter were shown 

to the Court.)



132

Cross examination.
By Mr. Nelson:

Q. Who asked you to bring your camera to McCrory’s 
Store on the 17th of September, 1960?

A. Captain Cutrera.
Q. I have no further questions.
Mr. Zibilich: In connection with the testimony of the 

preceding witness the state would like to file in evidence, 
making same State—1, the film just exhibited being a 
16 mm. film, 931A and mark same State 1 for identification, 
[fol. 132] The Court: Any objection.

Mr. Nelson: None.
The Court: Let it be filed.
Mr. Zibilich: Subject to rebuttal, that is the State’s case.

M otion  for D irected  V erdict and D e n ia l  T h ereo f

Mr. Nelson: I move for a directed verdict, Your Honor. 
As I appreciate—

The Court: I didn’t hear you.
Mr. Nelson: I move for a directed verdict.
The Court: The motion for a directed verdict is denied. 
Mr. Nelson: I ’d like about a five minute recess.

[fol. 133] Defense’s Case

Mr. R u d o lph  J o seph  L ombard, a witness for the defense 
(defendant), after first being duly sworn by the Minute 
Clerk, testified as follows:

Direct examination.
By Mr. Nelson:

Q. What is your full name?
A. Rudolph Joseph Lombard.
Q. What is your present address?
A. 516 Newton Street.
Q. What is your occupation?
A. Student.
Q. Where?
A. Xavier University.



133

Q. Mr. Lombard, were you engaged—were you at the 
McCrory’s Department Store on September 17th, 1960, and 
were you arrested from that place?

A. Yes sir.
Q. At the time you were arrested were you in the com­

pany of the three defendants sitting here?
A. Yes.
Q. Now tell the court what happened when you walked 

in with the people you walked in with? Will you tell the 
court ?

A. I walked in with Oretha Castle. We took seats at the 
lunch counter at McCrory’s and we were shortly joined by 
Lanny and Mr. Carter.

Q. Lanny is Goldfinch?
A. Goldfinch. And at that time there was, I think, a 

manager of the store that shortly approached us and stated 
that there was a colored counter in the back of the store 
[fol. 134] and they weren’t going to serve us and after 
that with a whistle, or something, they prepared to close 
the counter down.

Q. Who whistled?
A. The attendant or manager or assistant manager what­

ever he may have been and they began to remove the 
stools and they turned the lights around the counter out 
and placed a sign stating that the counter was closed. From 
that time I think the police officers entered the store and 
the manager approached shortly after and they came up 
and introduced himself and said he was Mr. Barrett and 
the counter was closed and they weren’t going to serve us 
and he asked us to leave.

Q. Were you told where to go?
A. No, just said would you please leave.
Q. Did you recognize Mr. Graves that testified here 

earlier?
A. I think you are referring to the gentleman that I 

referred to as the attendant or assistant manager or the 
one in charge of the counter.

Q. Mr. Graves testified before Mr. Barrett in this case, 
was he the one that came up first?

A. Yes sir.
Q. You say he whistled?



134

A. He made some sort of signal, I  am sure it was a 
whistle.

Q. Right after that whistle everything else happened?
A. One employee began to move the stools, and to put 

out the lights and close the counter down.
Q. Were any instructions given before that?
A. No, not to my knowledge.
Q. I have no further question.

Cross examination.

By Mr. Zibilich:
No questions.

Mr. C e c il  W in st o n  C arter, a witness for the defense, 
[fol. 135] first being duly sworn by the Minute Clerk, testi­
fied as follows:

Direct examination.

By Mr. Nelson:
Q. Your full name?
A. Cecil Winston Carter, Jr.
Q. What is your address?
A. 337 St. Anthony.
Q. What is your occupation?
A. I am a student.
Q. Where?
A. Dillard University.
Q. Mr. Carter you were arrested at McCrory’s store on 

the 17th of September, 1960 with the other defendants at 
the bar?

A. I was.
Q. Would you kindly tell the court the circumstances 

surrounding your arrest? What happened?
A. About 10:30 A. M. I went to the store and I joined 

the other three defendants who were already seated at the 
counter and requested service. Upon being denied service 
by the employees of the store, the one that the previous 
witness described as the assistant manager he come up



135

and informed us as a group there was a negro counter in 
the back and that he wouldn’t serve us there and he asked 
us to go in the back and we sat there and the next thing 
I knew the counter was in the process of being closed and 
the sign was put up, the stools removed, the lights were 
turned out and the foodstuffs on the counter were taken off.

Q. Were any instructions given prior to the employees 
removing the stools, turning off the lights, etc.?

A. I didn’t see any instructions.
Q. What?
A. I  didn’t see or hear any instructions given.

[fol. 136] Q. Did you recognize Mr. Barrett when he testi­
fied, had you ever seen him before?

A. Yes.
Q. What did he tell you in the store anything that day?
A. He said that the counter was closed and asked us to 

leave.
Q. Did he ask you to leave the store?
A. No he didn’t.
Q. What was his words, if you recall?
A. In essence I believe he said this counter is closed and 

I am asking you to leave, that is all.
Q. I have no further questions.

Cross examination.

By Mr. Zibilich:
Q. Did you leave?
A. No.

Mr. S ydney  L angston  Go l d f in c h , J r., a  witness for the 
defense, defendant, after first being duly sworn by the 
Minute Clerk, testified as follows:

Direct examination.

By Mr. Nelson:
Q. What is your full name?
A. Sydney Langston Goldfinch, Jr.



136

Q. What is your present occupation?
A. Student at Tulane University.
Q. Mr. Goldfinch, you were arrested at McCrory’s De­

partment Store on the 17th, September, 1960?
A. I was.
Q. Tell the court the circumstances under which you 

were arrested?
A. I went to McCrory’s about 10:30 and sat at the coun­

ter, and shortly was joined by Mr. Lombard who testified 
earlier, Mr. Carter and Miss Castle, and the man that first 
[fol. 137] testified for the prosecution came up shortly 
thereafter and said there was a counter for colored people 
in the back and when he received no reply or response from 
any of us he gave a signal and the people, the employees, 
immediately began to remove the stools, take the dishes 
off the counter and put up a sign that the counter was 
closed, then they put off the lights, etc. Shortly thereafter 
Mr. Barrett came up, identified himself to us and said that 
the counter was closed. He was standing about three or 
four feet directly in front of us, in front of me, and he 
asked us to leave the counter that the counter was closed. 
We did not leave the counter.

Q. Did he ask any of you to leave the store?
A. No, he did not.
Q. You are positive about that?
A. Quite sure, yes.
Q. When they started removing the stools and cleaning 

the counter off, were any instructions or any orders given 
before?

A. Well it appeared to be a very efficient thing, every­
one knew what to do. Everybody seemed to know what to 
do and performed their functions.

Q. Did you hear any instructions?
A. Didn’t hear any instructions. Just a signal of some 

sort, a whistle of some sort of hand signal.
Mr. Zibilich: No questions.



137

Miss O r eth a  M a u reen  C astle , a witness for the defense 
(defendant), after first being duly sworn by the Minute 
Clerk, testified as follows:

Direct examination.

By Mr. Nelson:
Q. What is your full name?

[fol. 138] A. Oretha Maureen Castle.
Q. What is your present occupation?
A. Student.
Q. Where ?
A. Southern University.
Q. Southern University at New Orleans?
A. Yes.
Q. Were you arrested at McCrory’s Department Store 

on the 17th, of September, 1960?
A. I was.
Q. Will you tell the court the circumstances surrounding 

your arrest?
A. I was involved in a so-called sit in demonstration. I 

went in the store and sat at a side counter, lunch counter, 
and sat down. Shortly after we sat there a man appeared 
before us and said the colored lunch counter was in the 
back and that he couldn’t serve us and when we didn’t 
reply he had the counter closed and after that another man 
appeared before us and identified himself as the manager 
of the store and asked us to leave the counter.

Q. You ever requested to leave the store by the man­
ager?

A. No.
Mr. Zibilich: No questions.
The Court: Is that your case?
Mr. Nelson: That is our case.
The Court: Any rebuttal.

[fol. 139] Mr. Zibilich: No, Your Honor.
The Court: You gentlemen wish to argue the matter?
Mr. Zibilich: The State submits it.
(The matter was argued by Mr. Nelson.)



The Court: You wish to be heard Mr. Elie?
Mr. Elie: No. Mr. Nelson is to all of the defendants.

V ekdict

The Court: The Court finds the defendants guilty as 
charged.

The Court will fix the sentencing of these defendants on 
the third of January, 1961 and in the interim the defen­
dants are discharged on their bail until the third of Janu­
ary.

[fol. 140] Reporter’s Certificate (omitted in printing), 
[fol. 141] Clerk’s Certificate (omitted in printing).

[fob 142]
D e fe n s e  E x h ib it  1

Statement of De Lesseps S. Morrison, Mayor of the City 
of New Orleans, made on September 13, 1960, and 
identified as Defense 1 (Appellant 1).

The statement by Mayor Morrison Monday follows:
“I have today directed the superintendent of police that 

no additional sit-in demonstrations or so-called peaceful 
picketing outside retail stores by sit-in demonstrators or 
their sympathizers will be permitted.

“The police department, in my judgment, has handled 
the initial sit-in demonstration Friday and the follow-up 
picketing activity Saturday in an efficient and creditable 
manner. This is in keeping with the oft-announced policy 
of the New Orleans city government that peace and order 
in our city will be preserved.

“I have carefully reviewed the reports of these two 
initial demonstrations by a small group of misguided white 
and Negro students, or former students. It is my consid­
ered opinion that regardless of the avowed purpose or 
intent of the participants, the effect of such demonstrations 
is not in the public interest of this community.



139

“Act 70 of the 1960 Legislative session redefines disturb­
ing the peace to include ‘the commission of any act as would 
foreseeably disturb or alarm the public.’

“Act 70 also provides that persons who seek to prevent 
prospective customers from entering private premises to 
transact business shall be guilty of disorderly conduct and 
disturbing the peace.

“Act 80—obstructing public passages—provides that ‘no 
person shall wilfully obstruct the free, convenient,' and 
normal use of any public sidewalk, street, highway, road, 
bridge, alley or other passage way or the entrance, corridor 
or passage of any public building, structure, water craft or 
ferry by impeding, hindering, stifling, retarding or restrain­
ing traffic or passage thereon or therein.’

“It is my determination that the community interest, the 
public safety, and the economic welfare of this city require 
that such demonstrations cease and that henceforth they 
be prohibited by the police department.”

[fol. 143]
D e fe n s e  E x h ib it  2

Statement of Joseph I. Giarrusso, Superintendent of Police, 
City of New Orleans, issued on September 10, 1960, 
and marked for identification Defense 2 (Appellant 2).

Giarrusso Statement
Giarrusso issued the following statement:
“The regrettable sit-in activity today at the lunch counter 

of a Canal st. chain store by several young white and Negro 
persons causes me to issue this statement to the citizens 
of New Orleans.

“We urge every adult and juvenile to read this statement 
carefully, completely and calmly.

“First, it is important that all citizens of our community 
understand that this sit-in demonstration was initiated by 
a very small group.

“We firmly believe that they do not reflect the sentiments 
of the great majority of responsible citizens, both white and 
Negro, who make up our population.



140

“We believe it is most important that the mature re­
sponsible citizens of both races in this city understand that 
and that they continue the exercise of sound, individual 
judgment, goodwill and a sense of personal and community 
responsibility.

“Members of both the white and Negro groups in New 
Orleans for the most part are aware of the individual’s 
obligation for good conduct—an obligation both to himself 
and to his community. With the exercise of continued, 
responsible law-abiding conduct by all persons, we see no 
reason for any change whatever in the normal, good race- 
relations that have traditionally existed in New Orleans.

“At the same time we wish to say to every adult and 
juvenile in this city that the police department intends to 
maintain peace and order.

“No one should have any concern or question over either 
the intent or the ability of this department to keep and 
preserve peace and order.

“As part of its regular operating program, the New 
Orleans police department is prepared to take prompt and 
effective action against any person or group who disturbs 
the peace or creates disorder on public or private property.

“We wish to urge the parents of both white and Negro 
students who participated in today’s sit-in demonstration 
to urge upon these young people that such actions are not 
in the community interest.

“Finally, we want everyone to fully understand that the 
police department and its personnel is ready and able to 
enforce the laws of the city of New Orleans and the state 
of Louisiana.”



[fol. 146]
S u pr e m e  C ourt 

S tate of L ouisiana  

No. 45,491

141

S tate of L ouisiana ,

vs.

S id n ey  L angston  G o l d fin c h , J r., et al.

O p in io n

Appeal From the Criminal District Court 
Parish of Orleans

Honorable J. Bernard Cocke, Judge 
S u m m e r s , Justice

The four defendants herein, a white and three Negroes, 
were jointly charged in a bill of information filed by the 
District Attorney of Orleans Parish with criminal mischief 
in that on September 17, 1960, they took possession of the 
lunch counter at McCrory’s Store, and remained there after 
being ordered to leave by the manager in violation of the 
provisions of Title 14, Section 59 of the Revised Statutes 
of the State of Louisiana, the pertinent portions of which 
provide:

“Criminal mischief is the intentional performance of 
any of the following acts:

(6) Taking temporary possession of any part or parts 
of a place of business, or remaining in a place of busi­
ness after the person in charge of such business or 
portion of such business has ordered such person to 
leave the premises and to desist from the temporary 
possession of any part or parts of such business.”

[fol. 147] The defendants entered McCrory’s store in New 
Orleans on the morning in question and took seats at one



142

of the counters therein. McCrory’s is part of a national 
chain operating in thirty-four states, owned by McCrory 
Stores, Incorporated. The New Orleans establishment is 
classified as a “variety merchandise” type store, made up 
of approximately twenty departments and open to the gen­
eral public. Included in its services to the public are eating 
facilities composed of a main restaurant that seats 210, 
a counter for colored persons that seats 53, a refreshment 
bar that seats 24, and two stand-up counters.

The defendants were refused service at the counter 
where they were seated and which was reserved for whites, 
the manager was called, the counter was closed, and the 
defendants were requested to leave—in accordance with 
the policy of the store, fixed and determined by the manager 
in catering to the desires of his customers—or to seek ser­
vice at a counter in the store providing service for Negroes. 
Upon their refusal, the police, who had been summoned by 
the manager, arrested them. They were subsequently tried 
and convicted of having violated the foregoing statute.

Defendants filed a motion to quash, motion for a new 
trial and a motion in arrest of judgment, all of which 
were overruled, and objected to the refusal of the Court 
to permit the introduction of certain evidence to which 
bills of exceptions were reserved.

These motions and bills of exceptions pertain primarily 
to the contention of defendants that the statute under which 
they were convicted, in its application against Negroes, is 
unconstitutional and discriminatory in that it denies to 
them the guarantees afforded by the Due Process and Equal 
Protection clauses of the Constitution of the United States 
and the Constitution of the State of Louisiana, particularly 
that afforded by the Fourteenth Amendment to the Consti­
tution of the United States.
[fol. 148] There should be no doubt, and none remains in 
our minds, about the applicability of the Due Process and 
Equal Protection Clauses of the Fourteenth Amendment 
to the state rather than private persons. The second sen­
tence contains the phrases, “No State shall make or enforce 
any law * * * ” and “nor shall any State deprive any 
person * * * .”

Since the decision in the Civil Rights Cases, 109 U.S. 3, 
27 L. Ed. 835, 3 S. Ct. 18, it has been unequivocally under-



143

stood that the Fourteenth Amendment covers state action 
and not individual action. Mr. Justice Bradley, speaking 
for the majority in these cases, stated:

“The first section of the Fourteenth Amendment (which 
is the one relied on), after declaring who shall be citi­
zens of the United States, and of the several States, 
is prohibitory in its character, and prohibitory upon 
the States * * *

“It is State action of a particular character that is 
prohibited. Individual invasion of individual rights 
is not the subject-matter of the amendment.”

The foregoing concrete language indicates emphatically 
that positive action by state officers and agencies is the 
contemplated prohibition of the amendment. 43 Cornell 
L.Q. 375. Mr. Justice Bradley further stated that the 
wrongful act of an individual is not state action “if not 
sanctioned in some way by the State, or not done under 
State authority, * * * .” This proposition has been con­
stantly reiterated by the highest court of our land. In 
Shelley v. Kraemer, 334 U.S. 1, 92 L. Ed. 1161, 68 S. Ct. 
836, it was stated thusly: “Since the decision of this Court 
in the Civil Rights Cases, 109 U.S. 3 (1883), the principle 
has become firmly embedded in our constitutional law that 
the action inhibited by the first section of the Fourteenth 
Amendment is only such action as may fairly be said to 
be that of the States. That Amendment erects no shield 
against merely private conduct, however discriminatory or 
wrongful.”
[fol. 149] We are, therefore, called upon to determine 
whether the enactment of the questioned statute is such 
action by the State as is prohibited by the Fourteenth 
Amendment. In this connection it is recognized that the 
enactment of a statute which on its face provides for dis­
crimination based upon race or color is a violation of the 
Fourteenth Amendment and constitutes state actions 
which that constitutional amendment prohibits.

A reading of the statute readily discloses that it makes 
no reference to any class, race or group and applies to all 
persons alike, regardless of race. It confers no more rights



144

on members of the white race than are conferred on mem­
bers of the Negro race, nor does it provide more privileges 
to members of the white race than to members of the 
Negro race. Williams v. Howard Johnson’s Restaurant, 
268 F. 2d 845. The statute under consideration here stands 
no differently than does one imposing a penalty upon a 
person who enters without right the posted lands of an­
other. It is not such a law as would be marked with the 
characteristic that it has been promulgated by our State 
for a special design against the race of persons to which 
defendants belong. To the contrary it is such a law that 
finds widespread acceptance throughout America. It is a 
legislative recognition of rights accorded to the owners of 
property similar to those found in almost all states of our 
nation. Mr. Justice Black in Martin v. City of Struthers, 
319 U.S. 141, 87 L. Ed. 1313, 63 S. Ct. 862, referring to a 
statute of Virginia similar in scope to that here involved, 
said: “Traditionally the American law punishes persons 
who enter onto the property of another after having been 
warned by the owner to keep off. General trespass after 
warning statutes exist in at least twenty states, while 
similar statutes of narrower scope are on the books of at 
least twelve states more.”

Not being impressed with features which would make it 
as discriminatory and a fortiori unconstitutional,1 we con­
clude that the constitutionality of the statute must be pre- 
[fol. 150] sumed. State v. Winehill & Rosenthal, 147 La. 
781, 86 So. 181, writ of error dismissed 258 U.S. 605; 
Panama R. R. Co. v. Johnson, 264 U.S. 375, 68 L. Ed. 748, 
44 S. Ct. 391; Richmond Screw Anchor Co. v. United States, 
275 U.S. 331, 72 L. Ed. 303, 48 S. Ct. 194; State v. Grosjean, 
182 La. 298, 161 So. 871; State v. Saia, 212 La. 868, 33 
So. 2d 665; Schwegmann Bros. v. La. Board of Alcoholic 
Beverage Control, 216 La. 148, 43 So. 2d 248; Olivedell 
Planting Co. v. Town of Lake Providence, 217 La. 621, 47 1

1 Buchanan v. Warley, 245 U.S. 60, 62 L. Ed. 149, 38 S. Ct. 16; 
Flemming v. South Carolina Electric and Gas Co., 224 F. 2d 752, 
appeal dismissed, 351 U.S. 901; Browder v. Gayle, 142 F. Supp. 
707, affirmed, 352 U.S. 903; Evers v. Dwyer, 358 U.S. 202, 3 L. Ed. 
2d 222, 79 S. Ct. 178; Dorsey v. State Athletic Comm., 168 F. Supp. 
149, appeal dismissed and certiorari denied, 359 U.S. 533.



145

So. 2d 23; Jones v. State Board of Education, 219 La. 630, 
53 So. 2d 792; State v. Rones, 223 La. 839, 67 So. 2d 99; 
State v. McCrory, 237 La. 747, 112 So. 2d 432; Michon v. 
La. State Board of Optometry Examiners, 121 So. 2d 565; 
11 Am. Jur., Const. Law, Sec. 97.

Furthermore, courts will not hold a statute unconstitu­
tional because the legislature had an unconstitutional intent 
in enacting the statute which has not been shown here. 
Doyle v. Continental Insurance Co., 94 U.S. 535, 24 L. Ed. 
148; Daniel v. Family Security Life Ins. Co., 336 U.S. 
220, 93 L. Ed. 632, 69 S. Ct. 550; State v. County Comm., 
224 Ala. 229, 139 So. 243; Morgan v. Edmondson, 238 Ala. 
522, 192 So. 274. The courts will test a statute as it stands, 
without considering how it might be enforced. James v. 
Todd, 267 Ala. 495, 103 So. 2d 19, appeal dismissed, 358 
U.S. 206; Clark v. State, 169 Miss. 369, 152 So. 820. Courts 
in considering constitutionality of legislation cannot search 
for motive. Shuttlesworth v. Birmingham Board of Educa­
tion, 162 F. Supp. 372, affirmed, 358 U.S. 101.

Defendants further assert in their attack upon the statute 
that by content, reference and position of context it is 
designed to apply to, and be enforced in an arbitrary man­
ner against, members of the Negro race and those acting 
in concert with them. In aid of this assertion certain House 
bills of the Louisiana Legislature for 1960, introduced in 
the same session with the contested statute, were offered 
in evidence.2 All of these bills did not become law, but 
[fol. 151] some did.3 It is declared that this law and the 
others enacted during the same session were designed to 
apply to and be enforced against, in an arbitrary manner, 
members of the Negro race. We have carefully reviewed 
the provisions of these bills referred to which were enacted 
into law and nowhere in their content or context do we 
find that any of them seek to discriminate against any class, 
group, or race of persons. We therefore find no merit in

2 See Official Journal of the Proceedings of the House of Rep­
resentatives of the State of Louisiana, 23rd Regular Session, 1960, 
House Bills 343-366, inclusive.

3 See Acts 68, 69, 70, 73, 76, 77, 78, 79, and 81, representing 
the only House Bills referred to in Footnote 1, which were enacted 
by the Legislature.



146

this contention and, accordingly, dismiss it as being un­
supported.

But the primary contention here, conceding the consti­
tutionality of the statute on its face, has for its basis that 
the statute is unconstitutional in its application and the 
manager and employees of the store were acting in concert 
with the municipal police officers who made the arrest, the 
district attorney in charging defendants, and the court in 
trying defendants’ guilt; that these acts constitute such state 
action as is contemplated by the prohibition of the Four­
teenth Amendment. We have noted, however, that in order 
for state action to constitute an unconstitutional denial of 
equal protection to the defendants here that action must 
provide for discrimination of a nature that is intentional, 
purposeful, or systematic. Snowden v. Hughes, 321 U.S. 1, 
88 L. Ed. 497, 64 S. Ct. 397; Charleston Federal Savings 
& Loan Assn. v. Alderson, 324 U.S. 182, 89 L. Ed. 857, 
65 S. Ct. 624; City of Omaha v. Lewis & Smith Drug Co., 
156 Neb. 650, 57 N.W. 2d 269; Zorack v. Clauson, 303 N.Y. 
161, 100 N.E. 2d 463; State v. Anderson, 206 La. 986, 20 
So. 2d 288; City of New Orleans v. Levy, 233 La. 844, 98 
So. 2d 210; 12 Am. Jur., Constitutional Law, Sec. 566. 
Nor is a discriminatory purpose to be presumed. Tarrance 
v. Florida, 188 U.S. 519, 47 L. Ed. 572, 23 S. Ct. 402.

The defendants sought to introduce evidence to establish 
that the action of the manager of McCrory’s was provoked 
or encouraged by the state, its policy, or officers, and they 
would have this Court hold that this action of McCrory’s 
was not its own voluntary action, but was influenced by the 
officers of the state. The conclusion contended for is in- 
[fol. 152] compatible with the facts. Rather, the testimony 
supports a finding that the manager of McCrory’s had for 
the past several years refused service to Negroes, that 
the policy of the store was established by him, that he had 
set out the policy and followed it consistently; that Negroes 
had habitually been granted access to only one counter 
within the store and a deliberately provoked mischief and 
disturbance such as the one he complained of here had not 
previously occurred. In the past other Negroes who had 
mistakenly taken seats at the counter in question and who 
were told to move had cooperated and recognized the re-



147

quests of file McCrory’s employees and had sat at the 
counter set aside for them.

Even under the provision of the questioned statute it 
is apparent that a prosecution is dependent upon the will 
of the proprietor, for only after he has ordered the intruder 
to relinquish possession of his place of business does a 
violation of the statute occur. The state, therefore, without 
the exercise of the proprietor’s will can find no basis under 
the statute to prosecute.

These facts lead us to the conclusion that the existence 
of a discriminatory design by the state, its officers or agents, 
or by its established policy, assuming such could have been 
shown, would have had no influence upon the actions of 
McCrory’s. The action of bringing about the arrest of the 
defendants, then, was the independent action of the manager 
of the privately owned store, uninfluenced by any govern­
mental action, design, or policy—state or municipal—and 
the arrest was accomplished in keeping with McCrory’s 
business practice established and maintained long before 
the occasion which defendants seek to associate with a 
discriminatory design by the state. Furthermore, it is 
quite clear from the oral argument of defense counsel that 
this prosecution was sought after and provoked by the 
defendants themselves, and in reality the conviction they 
have sustained is the result of their own contrivance and 
mischief and is not attributable to state action.
[fol. 153] The business practice which McCrory’s had 
adopted was recognized then and is now recognized by us 
to be a practice based upon rights to which the law gives 
sanction. It has been expressed as follows:

“The right of an operator of a private enterprise to select 
the clientele he will serve and to make such selection based 
on color, if he so desires, has been repeatedly recognized 
by the appellate courts of this nation * * * The owner- 
operator’s refusal to serve defendants, except in the portion 
of the building designated by him, impaired no rights of 
defendants.” See State v. Clyburn, 247 N.C. 455, 101 S.E. 
2d 295, and authorities therein cited. This right of the op­
erator of a private enterprise is a well-recognized one as 
defendants concede. “The rule that, except in cases of com­
mon carriers, innkeepers and similar public callings, one



148

may choose his customers is not archaic.” Greenfield v. 
Maryland Jockey Club, 190 Md. 96, 57 A. 2d 335.

The right to prevent a disturbance on one’s private prop­
erty and the right to summon law enforcement officers to 
enforce that right are rights which every proprietor of a 
business has whenever he refuses to deal with a customer 
for any reason, racial or otherwise, and the exercise of those 
rights does not render his action state action or constitute 
a conspiracy between the proprietor and the peace officer 
which would result in state action. Slack v. Atlantic White 
Tower System, Inc., 181 F. Supp. 124, affirmed, 284 F. 2d 
746.

There is presently no anti-discrimination statute in Loui­
siana, nor is there any legislation compelling the segrega­
tion of the races in restaurants or places where food is 
served. There being no law of this State, statutory or 
decisional, requiring segregation of the races in restau­
rants or places where food is served, the contention that 
the action of the officials here is discriminatory is not well- 
founded for that action is not authorized by state law.

The defendants have sought to show through evidence 
adduced at the trial that there is no integration of the 
races in eating places in New Orleans and, therefore, the 
custom of the state is one that supports segregation and 
[fol. 154] hence state action is involved. This argument 
overlooks the fact that the segregation of the races pre­
vailing in eating places in Louisiana is not required by 
any statute or decisional law of the State or other govern­
mental body, but is the result of the business choice of the 
individual proprietors, both white and Negro, catering to 
the desires and wishes of their customers, regardless of 
what may stimulate and form the basis of the desires. 
Slack v. Atlantic White Tower System, Inc., supra.

To the same effect is the language of the Court in 
Williams v. Howard Johnson’s Restaurant, supra, viz.:

“This argument fails to observe the important distinc­
tion beween activities that are required by the state 
and those which are carried out by voluntary choice 
and without compulsion by the people of the state in 
accordance with their own desires and social practices. 

# # # # # # #



149

“The customs of the people of a state do not con­
stitute state action within the prohibition of the Four­
teenth Amendment.”

The effect of the contentions of defendants is to urge us 
to disregard and ignore certain rights of owners and tax­
payers in the enjoyment of their property, unaffected by 
any public interest, in order that they may impose upon 
the proprietor their own concept of the proper use of his 
property unsupported by any right under the law or Con­
stitution to do so. We cannot forsake the rights of some 
citizens and establish rights for others not already granted 
by law to the prejudice of the former; this is a legislative 
function which it is not proper for this Court to usurp. 
Tamalleo v. New Hampshire Jockey Club, Inc., 102 N. H. 
547, 163 A. 2d 10. The fundamental propositions pre­
sented here are not novel; we treat them as settled and 
their change is beyond our province.

The conviction and sentence are affirmed.

[fol. 155]
S u pr e m e  C ourt 

S tate of L ouisiana

[Title omitted]

P e t it io n  for R eh ea r in g

To the Honorable, the Chief Justice and Associate Justices 
of the Supreme Court of Louisiana:

The petition of Sydney L. Goldfinch, Jr., Rudolph Lom­
bard, Oretha Castle and Cecil Carter, Jr., through their 
undersigned counsel, with respect shows:

I .

That the decree of this Honorable Court rendered on the 
29th day of June, 1961, in the above entitled and numbered 
cause, is contrary to the law and jurisprudence of the State 
of Louisiana and the United States and that this Court



150

(1) The Court was in error in finding lack of “state 
action” in the demand that the defendants leave the 
counter. In the decree rendered by this Court, on 
Page 7 we find the following:

“ . . .  The action of bringing about the arrest of the 
defendants, then, was the independent action of the 
manager of the privately owned store, uninfluenced 
by any government action, design, or policy—state 
or municipal. . . ”

This finding completely ignores the orders of Mayor Mor- 
[fol. 156] rison issued to the police on September 13, 1960, 
—4 days before the named “sat-in”. The pertinent part of 
Mayor Morrison’s instructions are as follows:

“I have today directed the superintendent of police that 
no additional sit-in demonstrations or so-called peace­
ful picketing outside retail stores by sit-in demonstra­
tors or their sympathizers will be permitted.

# # # # # * *
“It is my determination that the community interest, 
the public safety, and the economic welfare of this city 
require that such demonstrations cease and that hence­
forth they be prohibited by the police department.”

A reading of the record will clearly show that the entire 
act was initiated by action of the municipal government— 
a state agency. At no time did the manager of the store 
request that the defendants “leave the premises.” The ejec­
tion of the defendants from the premises was initiated and 
carried out by members of the New Orleans Police Depart­
ment.

(2) The Court was in error in failing to consider the 
contemporary history of the statute in question, 
namely Act 77(1) of i960 (R.S. 14:59(6)). The Court 
did not give due regard to the relevant conditions 
existing in the state at the time R.S. 14:59(6) was 
adopted and enforced.

should grant a re-hearing to correct errors in said decree,
which are as follows:



151

(3) The Court was in error in failing to find that the 
segregation policies of the state and municipal gov­
ernments were the determining factor in the segre­
gated eating facilities in McCrory’s, hence the deci­
sion of the management to continue segregated eating 
facilities was state action.

(4) This Court in its decree on page 3 held that:
“positive action by state officers and agencies is the 
contemplated prohibition of the (14th) Amendment. 
43 Cornell L.Q. 375. Mr. Justice Bradley further 
stated that the wrongful act of an individual is not 
state action ‘if not sanctioned in some way by the 
state, or not done under state authority. . . .’ ”

The evidence shows that the policy of the police was to 
prohibit sit-in demonstration. The evidence further shows 
on page 125 of the transcript that the manager had a 
[fol. 157] conference with Captain Cutrera of the New 
Orleans Police Department prior to giving any instructions 
to the defendants about leaving.

Bill of Exception No. 2 was taken when the Trial Judge 
refused the defendants the right to introduce evidence 
showing that the refusal was a result of police action.

This Court was in error in failing to find that this 
refusal was prejudicial to the defendants.

Wherefore, petitioners pray that this Court grant a 
re-hearing to Sydney L. Goldfinch, Jr., Rudolph Lombard, 
Oretha Castle and Cecil Carter, Jr.

John P. Nelson, Jr., Lolis E. Eli, Nils R. Douglas, 
Robert F. Collins, Attorneys for Petitioners, By: 
John P. Nelson, Jr.

Duly sworn to by John P. Nelson, Jr., jurat omitted in 
printing.



152

[fol. 158]
I n  t h e  S u pr e m e  C ourt of t h e  S tate of L ouisiana

Order R e fu s in g  A ppl ic a t io n  for R eh ea rin g—  
October 4,1961

Court was duly opened, pursuant to adjournment. 
Present, Their Honors: John B. Fournet, Chief Justice, 
Joe B. Hamiter, Frank W. Hawthorne, E. Howard Mc- 
Caleb, Walter B. Hamlin, Joe W. Sanders and Frank W. 
Summers, Associate Justices.

Action by the Court on Applications for Rehearing
Rehearings were refused in the following cases: 

# # # # # # #
45,491 State v. Goldfinch, Jr., et al.

[fol. 165] Clerk’s Certificate (omitted in printing).

[fol. 166]
S u pr e m e  C ourt of t h e  U n ited  S tates 

No. 638, October Term, 1961

R u d o lph  L ombard, et al., Petitioners, 
vs.

L o u isia n a .

O rder A llo w in g  Certiorari—June 25, 1962
The petition herein for a writ of certiorari to the 

Supreme Court of the State of Louisiana is granted, and 
the case is transferred to the summary calendar. The 
case is set for argument to follow No. 287.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in 
response to such writ.

Mr. Justice Frankfurter took no part in the consideration 
or decision of this petition.







IN THE

Supreme Court of the United States
O ctober T erm , 1962 

No. 71

JAMES RICHARD PETERSON, YVONNE J O A N  
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT, a n d  ROSE 
MARIE COLLINS, P etitio n ers ,

versus
CIT'i OF GREENVILLE, R espo nd en t

On  W rit  of Certiorari to t h e  S u pr em e  C ourt 
of S o u th  Carolina

B R IE F  OF RESPONDENT

THOMAS A. WOFFORD, 
THEODORE A. SNYDER, JR., 

200 Masonic Temple,
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers’ Building,
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Lawyers’ Building,
Greenville, South Carolina, 

Attorneys for Respondent.

Tha R. Bryan Company, Lagal PrlnUra, Columbia, S. C.





INDEX
P age

Questions Presented.......................................................... 1

Statement of the C ase ......................................................  2

Argument:
I. The proprietor of a privately owned restaurant has

the right to serve only those whom he chooses and 
to refuse to serve those whom he desires not to serve 
for whatever reason he may determ ine.................  3

II. There was no state action and consequently no de­
nial of the equal protection of the laws secured by 
the Fourteenth Amendment in the refusal of lunch 
counter service to the Negro petitioners by a private 
entrepreneur and their subsequent prosecution for 
trespass upon failure to depart from the premises 
after being requested to leave and given ample time
to do so ..................................................................... 7 III. IV.

III. Petitioners were not denied the freedom of speech 
secured to them by the Fourteenth Amendment 
when they were convicted for trespass for refusing 
to depart after being directed to leave the lunch 
room of a Kress’ store where they desired to conduct
a demonstration.......................................................... 16

IV. Conviction for violation of a statute making it an 
offense to remain on premises after being requested 
to leave, although the statute did not require the 
person making the request to leave to establish his 
authority to issue such request, did not deprive
petitioners of freedom of speech............................  21

Conclusion ........................................................................  24

( i )





TABLE OF CASES
P age

Alpaugh v. Wolverton, 184 Va. 943, 36 S. E. (2d) 906
(1946) ............................................................................

Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100
So. 240 (1924)............................................................. 6 ,

Boynton v. Virginia, 364 U. S. 454 ...................................
Burstyn v. Wilson, 343 U. S. 495 ....................................
Buenzle v. Newport Amusement Association, 29 R. I. 23,

68 Atl. 721, (1908)..........................................................
Carnegie-Illinois Steel Corp. v. United Steelworkers of

America, 353 Pa. 420, 45 A. (2d) 857 (1946).............
Civil Rights Cases, 109 U. S. 3 .......................................
Commonwealth v. Richardson, 313 Mass. 632, 48 N. E.

(2d) 678 (1943) .............................................................
Collister v. Hayman, 183 N. Y. 250, 76 N. E. 20 (1905) 5, 
Continental Baking Company v. Woodring, 286 U. S. 352
Fiske v. Kansas, 274 U. S. 380 .......................................
Fred Harvey v. Corporation Commission of Oklahoma,

102 Okla. 226, 229 P. 428 (1924) ................................
Frohwerk v. United States, 249 U. S. 204 ........................
Garifine v. Monmouth Park Jockey Club, 29 N. J. 47,

148 A. (2d) 1, (1959).................................................. 5,
Gitlow v. New York, 26S U. S. 652 ................................
Greenfeld v. Maryland Jockey Club, 190 Md. 96, 57 A.

(2d) 335 (1948) ......................................  5,
Hague v. C. I. O., 307 U. S. 496 ............. ...........................
Hall v. Commonwealth, 118 Va. 72, 49 S. E. (2d) 369 

(1948) app. dism. 335 U. S. 875, reh den 335 U. S. 912 
Horn v. Illinois Central Railway Co., 327 111. App. 498,

64 N. E. (2d) 574 (1946) ..............................................
Kovacs v. Cooper, 336 U. S. 7 7 ................................. 19,
Madden v. Queens County Jockey Club, 296 N. Y. 249, 

72 N. E. (2d) 697 (1947) cert. den. 332 U. S. 761 . .5, 
Marrone v. Washington Jockey Club, 227 U. S. 633 

(1931) ...........................................................................6 ,

3

9
4

21

6

20
7

18
15
15
16

6
17

16
16

16
18

18

4
20

15

10
( i i )





TABLE OF CASES— Continued
P age

Marsh v. Alabama, 326 U. S. 501.....................................  18
Martin v. City of Struthers, 319 U. S. 4 1 ........................  10
Meisner v. Detroit B. I. & W. Ferry Co., 154 Mich. 545,

118 N. W. 14 (190S) ......................................................  5

N. L. R. B. v. Fansteel Metallurgical Corporation, 306 
U. S. 240 ........................................................................  20

Nance v. Mayflower Tavern, 106 Utah 517, 150 P. (2d)
773 (1944)................................................................... '  4

Noble v. Higgins, 95 Misc. 328,158 N. Y. S. 867 (1916) .. 4
The Oakmar, 20 F. Supp. 650 (Md. 1937)........................  20
Korthinos v. Niarchos, 175 F. (2d) 730 (4 th Cir. 1949)

cert. den. 338 U. S. 894 ..................................................  20
People ex rel Burnham v. Flynn, 189 N. Y. 180, 82 N.

E. 169 (1907) ................................................................ 5

Public Utilities Commission v. Pollack, 191 F. (2d) 450
(1951) 343 U. S. 451......................................................  19

Rutledge Co-op Ass’n v. Baughman, 153 Md. 297, 138
Atl. 29 (1927).................................................................  15

Saia v. New York, 334 U. S. 558 ............. ........................ 18
Sehenck v. United States, 249 U. S. 4 7 ............................  17
Schneider v. State, 308 U. S. 147 .................................... 17
Shelley v. Kraemer, 334 U. S. 1 ...................... '.___ 7,11, 12
Slack v. Atlantic White Tower System, Inc., 181 F. 

Supp. 124 (Md. 1960) aff’d. 284 F. (2d) 746 (4th Cir.
1960) ..............................................................................  4

Smith v. California, 361 U. S. 147.................................... 21
State v. Lightsey, 43 S. C. 114, 20 S. E. 975 (1895)___ 10
State of Starnes, 213 S. C. 304, 49 S. E. (2d) 209 (1948) 9
Thornhill v. Alabama, 310 U. S. 8 8 ............................ 18, 19
Truax v. Corrigan, 257 U. S. 312 .................................... 20
Tucker v. Texas, 326 U. S. 5 17 ......................................  18
United States v. Colgate & Co., 250 U. S. 300 .................  5

United States v. Greenbaum, 138 F. (2d) 437 (3rd Cir. 
1943) ..............................................................................  22





TABLE OF CASES—Continued
P age

1 Watchtower Bible & Tract Society v. Metropolitan Life 
Insurance Company, 279 N. Y. *339, 79 N. E. (2d) 433
(1948) .................-..........................................................

Watkins v. Oaldawn Jockey Club, 86 F. Supp. 1006 (W.
D. Ark. 1949) aff’d 183 F. (2d) 440 (8th Cir. 1950) . .5, 

Williams v. Hot Shoppes, 293 F. (2d) 835, 840 (D. C.
Cir. 1961) cert. den. 370 U. S. 925 ................................

Williams v. Howard Johnson’s Restaurant, 268 F. (2d)
845 (4th Cir. 1959) .................................................. 14,

Winters v. New York, 333 U. S. 507 ................................
Woollcott v. Shubert, 217 N. Y. 212, 111 N. E. 829

(1916) .......................................................................... 5,
Yick Wo v. Hopkins, 118 U. S. 356 ....................................

CONSTITUTION OF THE UNITED STA TES
Amendment I .....................................................................

STA TE STA TU TES
Section 16-388, Code of Laws of South Carolina, 1952,

as amended.....................................................................1
OTHER AUTHORITIES

Annotation, 9 A. L. R. 379 ...............................................
Beale, The Law of Innkeepers and Hotels (1906)..........

18

14

14

16
21

15
17

16

2

6
4

( iv)



.



IN  TEE

Supreme Court of the United States
October T erm, 1962

No. 71

JAMES RICHARD PETERSON, YVONNE J O A N  
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK 
G. SMITH, ROBERT CROCKFTT, JAMES CAR­
TER, DORIS DELORES WRIGHT, and ROSE 
MARIE COLLINS, P etitioners,

versiis

CITY OF GREENVILLE, R espondent

On  W rit of Certiorari to the S upreme Court 
of S outh Carolina

B R IE F  OF RESPONDENT

QUESTIONS PRESEN TED
Petitioners were convicted of trespassing upon their 

refusal to leave a lunch counter after the elapse of a rea­
sonable time for their departure. Their original presence 
was for the purpose of a demonstration to protest the re­
fusal of service to them. The premises and business where 
the events occurred are privately owned.

I
Does the operator of a privately owned restaurant or 

lunch counter open to the public have a right to refuse serv­
ice to prospective customers?





2 Peterson et ad., Petitioners, v. City of Greenville, Respondent

n
Was there any “state action” in the refusal of lunch 

counter service to Negro petitioners by a private entre­
preneur, and their prosecution for trespass upon failure 
to leave the premises after notice to depart?

m
Were petitioners denied the freedom of speech secured 

to them hy the Fourteenth Amendment when they were 
convicted for trespass for refusing to obey the order of the 
manager to leave the lunch room of a Kress’ Store where 
they desired to conduct a demonstration?

IV
Does a statute making it an offense to remain on prem­

ises after notice to leave is given deprive petitioners of 
Freedom of Speech where the statute does not require the 
person giving the notice to establish his authority over the 
premises ?

STATEM ENT OF THE CASE
S. H. Kress and Company operates a chain of variety 

stores, with a branch in Greenville, South Carolina, de­
scribed as a junior department store. (R. 20.) One of its 
departments is a lunch counter, with seats for fifty-nine 
persons. (R. 25.) On the morning of August 9, 19G0, the 
petitioners, all Negroes, took seats there and requested 
service. (R. 36.) They were told that Negroes were not 
served there. (R. 36.) Following that the manager had the 
lights turned off, announced that the lunch counter was 
closed, and requested everyone to leave. Everyone left ex­
cept the petitioners. (R. 19, 44.) They did not leave. After 
approximately five minutes, they were arrested for trespass 
in ^dolation of Section 16-388, Code of Laws of South Caro- 
lin, 1952, as amended. (R. 19.)



-



The petitioners were refused service because they were 
Negroes. The Kress headquarters has a policy of following 
local customs in reference to serving members of the public 
and the local manager acted pursuant to orders to that 
effect (R. 2 1 ), the local custom being to serve whites only.

The petitioners were subsequently convicted of tres­
pass and sentenced. (R. 47.) On appeal the convictions were 
affirmed, first by the County Court of Greenville County 
(R. 52) and then by the Supreme Court of South Carolina. 
(R. 59.) The case is now before this Court on Certiorari. 
(R. 65.)

ARGUMENT
I

The proprietor of a privately owned restaurant has the 
right to serve only those whom he chooses and to refuse to 
serve those whom he desires not to serve for whatever rea­
son he may determine.

At common law, proprietors of private establishments 
had the absolute right to serve whom they pleased. They 
were under no obligation to the general public, and had no 
duty to serve all who sought their services. At common law 
restaurants were such private establishments, and today, 
in the absence of statute, their owners may select their 
clientele upon any basis they desire. A lp a u g li v . W o lve r to n , 
184 Va. 943, 36 S. E. (2d) 906 (1946). There is no statute 
in South Carolina which changes the rights of a restaurant 
operator or imposes any duty on him to serve all who pre­
sent themselves for service. The manager of Kress’ store 
was fully within his rights when he refused to serve the 
petitioners at the lunch counter in that store.

This was not the rule as to all callings at common law. 
The innkeeper was treated differently. Innkeeping was re­
garded as a public calling, and innkeepers were under a 
duty to serve all who sought their services. The reason for

Peterson et al., Petitioners, v. City of Greenville, Respondent 3



.



this distinction is explained by Beale, “The Law of Inn­
keepers and Hotels,” 1906. According to Beale, the inn de­
veloped to serve the needs of the traveler in medieval Eng­
land. Night-time travel was dangerous, and the condition 
of the roads made frequent stops necessary. Without closely 
spaced inns, travel would have been impossible. The needs 
of the wayfarer were entirely different from those of the 
local population, and the duties owed to each differed ac­
cordingly. The difference between the duties of the estab­
lishments set up to accommodate these diverse needs is 
illustrated by Beale as follows:

“The one was instituted for the weary traveler, the 
other for the native; the one furnished food that the 
traveler might continue his journey, the other furnished 
drink for the mere pleasure of neighbors; the one was 
open to the traveler for protection at night; the other 
turned its guest out the very moment when he most 
needed protection and left him to find it, if his remain­
ing senses permitted him to do so, in his own home. It 
is unnecessary, therefore, to point out the fact that a 
tavern is not an inn, and the innkeeper’s duties do not 
extend to the tavernkeeper.” As quoted in Nance v. 
Mayflower Tavern, 106 Utah 517, 150 P. (2d) 773 
(1944).
The obligations placed on inns and innkeepers at com­

mon law was not applied to restaurants. Horn v. Illinois 
Central Railway Co., 327 111. App. 498, 64 N. E. (2d) 574 
(1946) *; Noble v. Higgins, 95 Misc. 328, 158 X. Y. S. S67 
(1916); Slack v. Atlantic White Tower System, Inc., 1S1 F. 
Supp. 124 (Md. 1960), affd. 284 F. (2d) 746 (4th Cir. 1960).

4 Peterson e t al., Petitioners, v. City of Greenville, Respondent

* This Court later held that a restaurant which is operated as an 
integral part of a bus company’s interstate transportation service must 
be operated without discrimination, but in so holding refused to hold 
that rule applicable to restaurants such as the one here concerned:

“We are not holding that every time a bus stops at a wholly 
independent roadside restaurant the Interstate Commerce Act re­
quires that restaurant service be supplied in harmony with the 
provisions of that Act.” B c y n to n  v .  V irg in ia ,  364 U. S. 454.



■



Petetson et al., Petitioners, u. City of Greenville, Respondent 6

A restaurant is treated the same in law as the store, where 
there is no obligation on the storekeeper to sell, and no ob­
ligation on the part of the general public to buy. United 
States v. Colgate & Co., 250 U. S. 300.

With the exception of innkeepers and common carriers, 
public utilities, and the like, who operate by virtue of a 
franchise from the state, operators of businesses catering 
to the public have the right to select their clientele, and to 
make such selection based on any reason, or no reason at all.

Nor are restaurants the only enterprises to which this 
rule of law has been applied. A theater may refuse admis­
sion to anyone Avho desires entrance. Collister v. Hayman, 
183 N. Y. 250, 7G N. E. 20 (1905); People ex rel. Burnham 
v. Flynn, 189 N. Y. 180, 82 N. E. 169 (1907). In Woollcott 
v. Shubert, 217 N. Y. 212, 111 N. E. 829 (1916) a theater 
owner was upheld in excluding a drama critic whose re­
views were not favorable. The Court said:

“His [the proprietor’s] right to and control of it 
is the same as that of  any private citizen in his prop­
erty and affairs. He has the right to decide who shall 
be admitted or excluded.”

The operators of race tracks have the same common law 
right to choose their customers. Greenfeld v. Maryland 
Jockey Club, 190 Md. 96, 57 A. (2d) 335 (1948); Watkins 
v. Oaklau n Jockey Club, 8 6  F. Supp. 1006 (W. D. Ark. 
1949), aff’d., 183 F. (2d) 440 (8 th Cir. 1950); Garifine v. 
Monmouth Park Jockey Chib, 29 N. J. 47, 148 A. (2d)
1 (1959); Madden v. Queens County Jockey Club, 296 N. Y. 
249, 72 N. E. (2d) 697 (1947), cert, den., 332 U. S. 761.

A ferry operator who is not engaged in general car­
riage has the same right. Meisner v. Detroit B. I. & W. 
Ferry Co., 154 Mich. 545, 118 N. W. 14 (190S). In that case 
the court recognized that it was just by discrimination that 
the ferry company secured the type of patron and conse-





6 Peterson et al., Petitioners, v. City of Greenville, Respondent

quently the financial benefits necessary' to make its opera­
tions a success. What is true of the ferry business is true 
of many others. They depend on the patronage of a partic­
ular class of patrons. Many businesses succeed because they 
cater to the particular desires of a small class of persons. 
The existence of individual preferences and desires is a fact 
of the economic give and take of business and one on which 
its success is often based. The economic realities of operat­
ing a business open to the public make it necessary' for sur­
vival that the operator have the right to select his custo­
mers. For example, it is reasonable that a restaurant op­
erator be able to require his men patrons to wear coats, no 
matter how clean or neat their appearance might be other­
wise, Fred Harvey v. Corporation Commission of Okla­
homa, 102 Okla. 226, 229 P. 428 (1924), or for a dance hall 
proprietor to refuse admission to persons wearing uni­
forms, as was done in Buenzle v. Newport Amusement As­
sociation 29 R. I. 23, 6 8  Atl. 721 (1908).

Petitioners, and others, had an implied license to go 
into the Kress store. The general law on this point is sum­
marized in the annotation, 9 A. L. R. 379, as follows:

“It seems to be well settled that although the gen­
eral public have an implied license to enter a retail 
store, the proprietor is at liberty to revoke this license 
at any time as to any individual and to eject such in­
dividual from the store if lie refuses to leave when re­
quested to do so.”

In this case when the petitioners were requested to leave 
the lunch counter, their implied license was revoked. 
They no longer had any right to remain there, rather, they 
were under a duty to depart. If they did not leave peaceably 
after being given a reasonable opportunity to do so, the 
management had the right to use such force as would be 
necessary to effect their removal. Brookside-Pratt Mining 
Co. v. Booth, 211 Ala. 268, 100 So. 240 (1924); Marrone v.





Washington Jockey Club, 227 U. S. 633 (1913). Five min­
utes was certainly a reasonable time for them to leave, 
where they had nothing more to do than stand up and walk 
away. By refusing to leave when requested, the petitioners 
became trespassers, and invited the use of force to accom­
plish their removal. The petitioners were in a place where 
they had no right to be and where they knew they were not 
wanted and had no right to remain. They cannot now object 
to their removal from that place by forceable means.

II
There was no state action and consequently no denial of 

the equal protection of the laws secured by the Fourteenth 
Amendment in the refusal of lunch counter service to the 
Negro petitioners by a private entrepreneur and their sub­
sequent prosecution for trespass upon failure to depart 
from the premises after being requested to leave and given 
ample time to do so.

It is state action which results in denial of the equal 
protection of the laws which is prohibited by the Four­
teenth Amendment. Private conduct, no matter how dis­
criminatory, is not unlawful under that Amendment. C iv il  
R ig h ts  cases, 109 U. S. 3; S h e lle y  v . K r a e m e r , 334 U. S. 1. 
Nothing transpired in the case at bar which can be called 
state action by the State of South Carolina.

The management of Kress’ store, in refusing service 
to petitioners and requesting them to leave was acting 
purely on a business choice made by a corporate manage­
ment located outside the state. The manager testified posi­
tively on this as is shown by the record:

“Q. What is the policy of Kress’, Greenville, South 
Carolina store with regard to serving Negroes and 
whites at its lunch counter!

“A. We follow local customs.

Peterson et al.. Petitioners, v. City of Greenville, Respondent 7





“Q. Now, sir, ‘we follow local customs,’ is that 
orders from your headquarters?

“A. Yes, sir.
“Q. It is?
“A. Absolutely.
“Q. And you understand as the manager of Kress’ 

assigned to Greenville and possibly in other areas that 
it is one of the mandates of your national organization 
business chain to follow local custom with reference to 
serving members of the public?

“A. That’s correct.” (R. 21, 22.)
And on cross examination:

“Q. Do I understand then further that you are 
saying that the presence of Negroes at your lunch coun­
ter was contrary to customs ?

“A. Yes, sir.
“Q. And that is why you closed your lunch 

counter?
“A. Yes, sir, that’s right.” (R. 23.)

From this it is clear that the refusal of service to the peti­
tioners was based on purely personal motives, dictated by 
the management of the Kress chain, relying on their best 
business judgment.

Much is said about an ordinance of the City of Green­
ville requiring segregation in eating places. (R. 49). This 
ordinance, however, could have had no part in causing re­
fusal of service to the petitioners. The policy formulated at 
Kress national headquarters was obviously made without 
reference to this ordinance. We may assume that the mana­
ger of the local store would obey the orders issued by his 
national organization. If the manager was following his 
orders in refusing service to the petitioners, then he would 
have refused service to them regardless of the existence 
of this ordinance.

It is interesting to note that even counsel for the peti­
tioners was not aware of this ordinance until it was men-

8 Peterson et al., Petitioners, v. City of Greenville, Respondent





tioned during the course of the trial. (R. 11.) Even the 
police captain who went to the scene did not have this ordi­
nance in mind (R. 11), he being of the opinion it was no 
longer in effect. (R. 17.) In any event this ordinance did 
not make the conduct of the petitioners unlawful. Its 
penalty was imposed on the operator of the eating place.

It is clear also that the action of Kress’ manager was 
not required under this ordinance, assuming arguendo, that 
it is a valid ordinance. The discussion in the record was of 
a prohibition against colored and white eating at the same 
lunch counter. (R. 11.) A reading of the ordinance shows 
that it prohibits only furnishing meals to the two races at 
the same counter. The penalty is imposed on the operator 
of the lunch room. There is nothing in this ordinance which 
would require a lunch room operator to close his business; 
there is nothing here which would penalize him for failure 
to order such persons to leave. When the manager of Kress’ 
store closed his lunch counter and ordered the petitioners 
to leave, he was not acting because of the positive command 
of any state or city law, and he was not acting for fear of 
any sanction he might incur because of failure to obey any 
such law. His action was dictated solely by his obedience 
to the orders of his national headquarters, formulated 
wholly wdthout reference to the ordinance in question.

The arrest of petitioners by police and their conviction 
in the courts of South Carolina did not constitute state ac­
tion. It has always been the law in South Carolina that a 
property owner, whether the property be his home or a 
place of business, has the right to order any person from 
the premises, regardless of wrhether that person originally 
entered as an invitee. S ta te  v . S ta rn e s , 213 S. C. 304, 49 S. 
(2d) 209 (1948). The property owner here was entitled to 
foreeablv remove the petitioners if he had desired. B rook- 
s id e -P r a tt  M in ing Co. v . B o o th . 211 Ala. 268, 100 So. 240

Peterson et al., Petitioners, v. City of Greenville, Respondent 9





(1924). Furthermore, anyone ejected by no more force than 
is reasonable has no complaint, and cannot sue for assault 
and battery or trespass in the expulsion. Marrone v. Wash­
ington Jockey Club, 227 U. S. 633.

The use of force by the owner of one in control of prop­
erty to eject trespassers is not a wise policy. It leads to 
injuries and sometimes death. It places a premium on force 
of numbers and physical strength. The rule of “might makes 
right” runs directly counter to the rule of law. The law of 
South Carolina at least favors the removal of recalcitrant 
trespassers by the forces of law rather than brute physical 
strength. State v. Lightsey, 43 S. C. 114, 20 S. E. 975 (1895). 
It should be unnecessary for a property owner to take the 
law into his own hands to remove a trespasser, when other, 
less violent means are available. Punishment by criminal 
prosecution is the favored way in law of dealing with them. 
Mr. Justice Black has stated:

“Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.” Martin v. City 
of Struthers, 319 U. S. 41.
The manager of Kress’ store was acting within the 

framework of the lawr viien he requested the police to come 
to his store. And it is clear that the police were there at his 
request.

“Q. Now, on August 9, viien these young people 
were seated at your lunch counter, viiat did you do 
first?

“A. The first thing I had one of my employees call 
the Police Department and turn the lights off and state 
the lunch counter was closed.” (R. 2 2 .)

It was not only proper, but desirable in the interest of law- 
abiding society, for the petitioners to be arrested by the 
police and brought to trial in the courts of justice.

10 Peterson et aL, Petitioners, r . City of Greenville, Respondent





This case is not like S h e lle y  v . K r a e m e r , 334 U. S. 1. 
There is no state action in the resort to the state’s courts, 
such as was found to exist in that case. In S h e lley  v . K r a e ­
m er  there were fully executed contracts of sale of realty be­
tween a willing buyer and a willing seller in each instance. 
The court system of the states wras resorted to there by 
third parties who sought to interfere and prevent the sales 
already mutually agreed upon. As stated by the court:

“The undisputed facts disclose that petitioners 
were willing purchasers of properties upon which they 
desired to establish homes. The owners of the proper­
ties were willing sellers; and contracts of sale were 
accordingly consummated. It is clear that but for the 
active intervention of the state courts, supported by 
the full panoply of state power, petitioners would have 
been free to occupy the properties in question without 
restraint.”
In the case at bar one link is removed from tliis chain. 

The petitioners are analogous to the willing purchasers in 
Shelley, and S. H. Kress and Company stands in a position 
analogous to the sellers. Here we have no outside party re­
sorting to the courts to prevent their entering into a con­
tract. Instead, we have the situation of an unwilling seller 
who refuses to sell and •who has a right to refuse to sell, 
on the one hand, and petitioners, who are willing buyers, 
and who insist on buying, but have no right to buy, on the 
other hand. Instead of a consensual agreement, there was 
an absolute disagreement. It became proper when it ap­
peared the disagreement could not be resolved peaceably 
for the police and the courts to prevent that disagreement 
from expanding into violence and to protect the property 
rights that had already been transgressed.

S h e lle y  v . K r a e m e r  struck down interference backed 
by state courts in agreements to transfer property. It does 
not prohibit state police and court action to protect prop-

P e t e r s o n  et aL, Petitioners, v. City of Greenville, Respondent l l





erty rights where that does not interfere with some agreed 
upon transfer of property. It cannot be said from the facts 
of this case that there was any agreement of Kress to sell 
to petitioners that was prevented from being consummated. 
The facts show that the only certainty was that Kress 
would refuse to serve petitioners. That was the company 
policy as formulated at its headquarters and expressed in 
an order to the manager of the Greenville store. The peti­
tioners had been refused service on several prior occasions. 
(R. 38.) Although they may have had conversations with 
the manager about not being charged, it was manifest that 
there could be no agreement about this on August 9, 1960, 
after he requested petitioners to leave. After the refusal 
of service and warning to leave, it. should have been clear 
to petitioners that there could be no agreement that day. 
The arrest of petitioners after a reasonable time for their 
removal did not interfere in or prevent the receipt by peti­
tioners of any luncheon service, nor did it interfere in their 
making a contract for any such service. The action of the 
state courts in convicting petitioners therefore did not deny 
them any rights to which they might otherwise have been 
entitled.

Discriminatory acts of a private individual taken pur­
suant to a custom are not state action which is prohibited 
by the Fourteenth Amendment. As this Court stated in 
Shelley v. Kraemer, supra:

“That Amendment erects no shield against merely
private conduct, however discriminatory or wrongful.”

Private action cannot be converted into “state action” for 
purposes of the Fourteenth Amendment unless it is based 
on some positive legislative pronouncement. One of the 
great attributes of the rule of law in civilized societies is 
its certainty. A society subject to the changeable whim of 
its ruler is not under any rule of law. Freedom is stifled

12 Peterson et al., Petitioners, v. City of Greenville, Respondent



.



when action taken under yesterday’s known edicts turns 
out to be unlawful under the next days’ announcement. Pro­
gress and development cannot be planned unless the laws 
that will govern that progress and development are known. 
In this picture custom is on the side of whim and fancy 
rather than of certainty. If custom can be law, it will often 
be an unknown law. How will a citizen know when the simi­
lar conduct of several has reached such proportions as to be 
the expected conduct of everyone? How can a citizen know 
whether he is witnessing the coincidental concurrence of 
similar reactions to similar circumstances only, and not the 
concurrence of common reaction to a given situation? We 
submit that it is an impossible task to learn when a custom 
begins or when it ceased to be such.

Again customs may vary from place to place. Some 
customs may cover an area larger than a state, or even a 
nation. On the other hand a particular custom may not pre­
vail throughout an entire state. How great a proportion of 
a state’s territory would petitioners have a custom cover 
before they conferred upon it the force of law? Often con­
flicting customs will be found within a single state. Which 
of such conflicting customs would then have the force of 
law? The answer is clear. It is that a custom can never 
have the force of law.

The difference between law and voluntary custom was 
pointed out recently by the Fourth Circuit Court of Appeals 
when it said:

“This argument fails to observe the important dis­
tinction between activities that are required by the 
state and those which are carried out by voluntary 
choice and without compulsion by the people of the 
state in accordance with their own desires and social 
practices. Unless these actions are performed in obedi­
ence to some positive provision of state law, they do 
not furnish a basis for the pending complaint. . . . The

Peterson et al.. Petitioners, v. City of Greenville, Respondent 13





customs of the people do not constitute state action 
within the prohibition of the Fourteenth Amendment.” 
Williams v. Howard Johnson’s Restaurant, 26S F. 
(2d) 845 (4th Cir. 1959).

This ruling was adopted with approval by the Court oi 
Appeals for the District of Columbia in Williams v. Hot 
Shoppes, 293 F. (2d) 835, 840 (D. C. Cir. 1961), cert, den., 
370 U. S. 925.

The licensing and regulatory powers of the State of 
South Carolina over the business of S. H. Kress and Com­
pany do not convert the operations of that business into 
state action. In these times, virtually every business is 
licensed and taxed. The interest of the government in ob­
taining revenue should not convert a private business into 
an arm of the state. Nor should its regulations in the exer­
cise of its police power to secure the health and safety of 
the public. This has been the conclusion of all the courts to 
consider this question. Thus it was stated in Watkins v. 
OalJnwn Jockey Club, 86 F. Supp. 1006 (W. D. Ark. 1949), 
aff’d., 183 F. (2d) 440 (8th Cir. 1950):

. . the fact that it operates the track under a 
license from the State Racing Commission does not 
make it an administrative agency of the State and does 
not render its actions in operating the track, and ex­
cluding or ejecting persons from the track, state action 
within the provisions of the Fourteenth Amendment 
and Section 43 of Title 8, U. S. C. A.”
The common law requiring innkeepers to serve the pub­

lic without discrimination was a law dictated in great part 
by circumstances. The law as applied to innkeepers was con­
fined to exceptional callings where the needs of the public 
urgently required that the service be provided. An example 
of this today is the common carrier. The great multiplicity 
of restaurants and other public eating places today is a 
matter of common knowledge. The business of providing

14 Peterson et a t, Petitioners, v. City o r Greenville, Respondent





meals to the public is not one which presents an urgent 
need for service to all. There is no necessity to equate such 
a business to that of a common carrier. Common carriers 
today are extensively licensed and regulated. But such 
licensing and regulation merely add to their duties. They 
do not change them. On the other hand, licensing and regu­
lation do not convert private carriers into public carriers. 
Rutledge Co-op. Ass’n v. Baughman, 153 Md. 297, 138 Atl. 
29 (1927); Continental Baking Company v. Woodring, 286 
U. S. 352.

Another category of enterprise which is required to 
serve all without discrimination is the public utility. These 
businesses depend for their existence on a franchise from 
the state. It is clear, however, that the licensing and regula­
tion of S. H. Kress and Company by the State of South Car­
olina is not the equivalent of a franchise. The argument that 
licensing of a race track amounted to a franchise depriving 
the track owner of the right to select its patrons was re­
jected in Madden v. Queens County Jockey Club, 296 N. Y. 
249, 72 N. E. (2d) 697 (1947). On that point the court said:

“Plaintiff’s argument results from confusion be­
tween a ‘license’ imposed for the purpose of regulation 
or revenue, and a ‘franchise’. A franchise is a special 
privilege, conferred by the State on an individual, 
which does not belong to the individual as a matter of 
common right. . . .  It creates a privilege where nono 
existed before, its primary object being to promote the 
public welfare.”

Since the Kress corporation did not derive from the state 
the right to initiate and conduct their business, it remained 
a private enterprise, regardless of the fact that it was 
licensed and taxed. Woollcott v. Shubert, 217 N. Y. 212, 111 
N. E. 829 (1916); Collister v. Hayman, 183 N. Y. 250, 76 
N. E. 20 (1905). Even racing, which is so closely licensed 
and regulated as to be no longer a strictly private busi-

Peterson et al., Petitioners, v. City of Creenville, Respondent 15





16 Peterson et al., Petitioners, v. City of Greenville, Respondent

ness, and approaches being a monopoly, is not because of 
that regulation an arm of the State In spite of these close 
controls it retains its private character including the right 
of the proprietor to select his patrons at will. Greenfeld v. 
Maryland Jockey Club, 190 Md. 96, 57 A. (2d) 335 (1943); 
Garifine v. Monmouth Park Jockey Club, 29 N. J. 47, 148 
A. (2d) 1 (1959).

The argument that state licensing and inspection of 
restaurants was most recently considered and rejected by 
the Fourth Circuit Court in Williams v. Howard Johnson's 
Restaurant, 268 F. (2d) 845 (4tli Cir. 1959).

• III
Petitioners were not denied the freedom of speech se­

cured to them by the Fourteenth Amendment when they 
were convicted for trespass for refusing to depart after be­
ing directed to leave the lunch room of a Kress’ Store where 
they desired to conduct a demonstration.

The freedom of speech which is secured by the Four­
teenth Amendment is the freedom of speech of the First 
Amendment Avhich is an attribute of “liberty” which the 
Fourteenth Amendment prohibits states from depriving 
persons without due process of law. Gitloiv v. New York, 
268 U. S. 652; Fiske v. Kansas, 274 U. S. 3S0. The First 
Amendment provides:

“Congress shall make no law . . . abridging the
freedom of speech. . . .”

The prohibition of the First Amendment is specific, no law 
shall be made which abridges the freedom of speech. It is 
laws which attempt to restrict this liberty that are forbid­
den. There is no law of South Carolina in the present case 
which even remotely interferes with speech.

The clear and present danger test emerged in rulings 
on the validity of legislative enactments which seemed to





restrict the freedom of speech. That rule requires that be­
fore an utterance piohibited by law can be penalized by the 
government, it must have occurred in such circumstances 
or have been of such a nature as to create a clear and pres­
ent danger that it would bring about substantive evils which 
the government had the right to prevent and sought to do 
by the law in question. Schenck v. United States, 249 U. S. 
47. But even that rule is not without limitation. Mr. Justice 
Holmes qualified it by saying:

. . The First Amendment while prohibiting leg­
islation against free speech as such cannot have been, 
and obviously was not. intended to give immunity for 
every possible use of language.” Frohuerk v. United 
States, 249 U. S. 204.
The trespass statute in the present case has nothing to 

do with speech, and in no way restricts it. The statute de­
clares certain property rights and tha+ alone. There is no 
claim by petitioners and no proof of discriminatory ap­
plication of the statute to them. Yick Wo v. Hopkins, 118 
U. S. 356.

The constitutional purpose in proscribing legislation 
against free speech was to leave the arena open for free 
trade in ideas. It is implicit that such speech will be at the 
proper place and with the consent of the listener.

The right of freedom of speech is closely bound to the 
right of freedom of assembly. Of course, a man may speak 
what he desires in his own home. But in order for there to 
be any interchange of thoughts in an effort to convince, we 
must look to the public places. It is in the streets and parks 
where the freedom of speech reaches its full capabilities. 
There is the opportunity to find a diversity of opinions and 
the makings of a discussion of different views. The streets 
are the natural and the proper places for the dissemination 
of information and opinion. Schneider v. State, 308 U. S.

Peterson et al., Petitioners, v. City of Greenville, Respondent 17





147; Hague v. C. I. 0., 307 XL S. 496; Thornhill v. Alabama, 
310 U. S. 88. Even where the streets and parks are privately 
owned, as in company towns, citizens have a right to go 
there to communicate information, unimpeded by trespass 
laws. Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 
326 U. S. 517. Even speech on the streets and other public 
places is not -without some liability to control. Saia v. New 
York, 334 U. S. 558.

"When the place of speaking changes away from public 
property and the traditional areas of free interchange, the 
rights of those who would speak are altered. Property 
rights come into play. On private property the right of 
freedom cf speech must yield to the property right of the 
landowner to eject trespassers. Hall v. Commomvealth, 118 
Va. 72, 49 S. E. (2d) 369, (1948), app. dism. 335 U. S. 875, 
reh. den., 335 U. S. 912. In that case a conviction for tres­
pass under a statute similar to the one here was upheld, 
where a member of a religious sect insisted on distributing 
information in the halls of an apartment building after be­
ing requested to leave. The court stated that these places 
could not he regarded the same as public roads. Hallways 
are not the proper place for public assembly, or for the 
discussion of public questions. Watchtower Bible <6 Tract 
Society v. Metropolitan Life Insurance Company, 279 N. 
Y. 339, 79 N. E. (2d) 433 (194S); Commonwealth v. Rich­
ardson, 313 Mass. 632, 48 N. E. (2d) 678 (1943).

A public store is not the proper place for discussion 
either. It is a commercial establishment, devoted to business 
uses. People do not ordinarily congregate there, nor do they 
resort to such a place to discuss the great and burning 
issues of the day.

The petitioners were not exercising any right of free­
dom of speech toward the proper persons. There is implicit 
in the idea of speech the idea of communicating informa-

18 Pet fatso n et al., Petitioners, v. City of Greenville, Respondent



■



tion. These petitioners were not attempting to publicize any 
argument they had to make. The purpose of picketing, which 
this resembles, is to inform members of the public of an 
existing state of affairs, usually a labor dispute. Thornhill 
v. Alabama, 310 U. S. 88. Here, however, there was no at­
tempt or purpose to convey information to the public, or 
to seek to enlist public support or public sentiment in their 
favor. Just the opposite, the petitioners were conducting an 
argument with S. H. Kress and Company. They had a 
right to ask Kress’ for service in these circumstancs. That 
was the proper expression of their side of the argument. 
But they had no right to repeat their views over and over 
after the management had expressed its opinion by denying 
them service and requesting them to leave. When that ex­
change was ended, their rights of speech were ended, too. At 
that point the property rights of the Kress Company be­
came paramount.

On the street, when a listener is accosted, he may choose 
to stop and talk or he may choose to turn away. When a 
man is in his home or on his property, however, he has no 
duty to leave and retreat. Such a person can require the 
would-be speaker to turn away, and if he does not, prose­
cute him for trespass. Further, to require the property 
owner to remain and listen in circumstances such as these, 
makes him a captive audience, and that deprives him of the 
same rights the petitioners would seek to assert. Kovacs 
v. Cooper, 336 U. S. 77. As Judge Edgerton stated in Pub­
lic Utilities Commission v. Pollack, 191 F. (2d) 450 (1951), 
reversed, 343 U. S. 451:

“One who is subjected to forced listening is not free
in the enjoyment of all his faculties.”
This case lacks the necessary element of a willing lis­

tener, without which there is no such thing as free inter­
change of ideas.

Peterson et aL, Petitioners, v. City of Greenville, Respondent 19





“The right of free speech is guaranteed every citi­
zen that he may reach the minds of willing listeners.”
Mr. Justice Reed in Kovacs v. Cooper, 336 U. S. 77.
There is another element in this case deriving from the 

occupation of seats by the petitioners and their refusal to 
give them up. The silent and forceful occupation of a pri­
vate person’s store is not speech. Such conduct smacks of 
coercion. I t is a demonstration of force, not of reason. The 
threat of and use of force is not connected in any way with 
the idea of persuasion by words, thoughts and logic. To 
characterize the conduct of petitioners they were saying: 
“If you are not convinced by our talk, we will convince you 
by taking possession of your premises and denying you the 
use of them.”

The denial of access to a person’s property by strikers 
who are exercising freedom of speech is not lawful. Car- 
neige-Illinois Steel Corp. v. United Steelworkers of Ameri­
ca, 353 Pa. 420, 45 A. (2d) 857 (1946); Truax v. Corrigan, 
257 U. S. 312. The right of free speech must yield in these 
circumstances to other rights. N. L. R. B. v. Fan-steel Metal­
lurgical Corporation, 306 U. S. 240, held further the seiz­
ure of a portion of an employers plant could not be justified 
under the N. L. R. A., even though the employer may have 
been engaged in unfair labor tactics, and the discharge of 
the employees who seized the buildings was upheld. Like­
wise, laboring men who seize a possession of a vessel in 
order to publicize a labor dispute and seek to gain advan­
tageous terms in the bargaining are held to be ordinary tres­
passers, unprotected by any labor statute. The Oakmar, 20 
F. Supp. 650 (Md. 1937); Korthinos v Niarchos, 175 F. 
(2d) 730 (4th Cir. 1949), cert, den., 338 U. S. 894. The right 
to freedom of speech does not carry with it the right to 
deprive another person of his property.

2Q Peterson et al., Petitioners, v. City op Greenville, Respondent





IV
Convictions for violation of a statute making it an of­

fense to remain on premises after being requested to leave, 
although the statute did not require the person making the 
request to leave to establish his authority to issue such re­
quest, did not deprive petitioners of freedom of speech.

The statute in this case contained no words which were 
capable of several meanings, or which could be construed 
to prohibit legitimate acts. Winters v. New York, 333 U. S. 
507. Statutes such as the one here under consideration are 
entirely different from the censorship-type statutes consid­
ered in Smith v. California, 361 U. S. 147, Winters v. New 
York, supra, and Burstyn v. Wilson, 343 U. S. 495. There 
was nothing here that could have different meanings to 
different people, or which would permit the application of 
an arbitrary standard.

To require a person in possession of land to identify 
his authority to a trespasser before he could take steps to 
eject him would make a mockery of the law. Ordinarily the 
possessor would be unable to prove this authority except 
by stating it verbally. What landlord carries his deed or 
lease in his pocket! The public record of deeds and leases 
is notice to the world of the owners and holders thereof. 
But many persons are in possession of property under oral 
leases, or under an implied lease, as tenants at will holding 
over at the end of the term, or tenants from month to month. 
What good and what point could be gained by having the 
person in possession state his claim is unclear. Looking at 
it from the viewpoint of the petitioners, and others who 
would trespass, it is clear that they always know about the 
absence of their own authority. There is no requirement in 
the law relating to larceny to which this is analogous, that 
the thief be instructed as to the ownership of what he is 
about to steal.

Peterson et al., Petitioners, t>. City of Greenville, Respondent 21





The rule of scienter, which the petitioners discuss, is 
wholly a different matter. Scienter is a question of the state 
of mind of tne offender. The requirement of scienter is the 
requirement of a type of specific intent. Scienter or specific 
knowledge of the criminality of a specific act is not an es­
sential element, of every crime, nor does social justice re­
quire that it be included in every offense. For the case of 
statutory offenses, the intent required by the legislature 
must be proved in order to convict, but there is no require­
ment that intent of any kind be prescribed. As was stated in 
United States v. Greenbaum, 138 F. (2d) 437 (3rd Cir. 
1943):

“Whether allegation and proof of mens rea is 
requisite to a conviction of a crime which carries with 
it a possible sentence to penal servitude depends upon 
the legislative intent evidenced by the statute which 
defines and punishes the particular offense. United 
States v. Balint, 258 U. S. 250, 252, 66 L. Ed. 604, 42 
S. Ct. 301. The constitutional requirement of due proc­
ess is not violated merely because mens rea is not a 
required element of a prescribed crime.”

Many common law crimes require only such a general crim­
inal intent, for example, battery.

If scienter could be read into the requirements of this 
statute, it would not be the scienter urged by petitioners. 
It would not be necessary to satisfy the scienter require­
ment that the person in possession of property prove his 
authority to require others to leave. All that could possibly 
be required would be the conveyance to petitioners and 
persons like them of notice that someone other than them­
selves asserted the right of possession to their exclusion. 
Notice to the petitioners, and the notice required by the 
statute was ample to give petitioners the knowledge that a 
superior right to possession was being claimed. At that 
point, had they needed any further information as to the au-

22 Peterson et al., Petitioners, v. City of Greenville, Respondent



.



thority of the person requesting them to leave, they were 
required to inquire as to his authority, or disobey at their 
peril. When a person in a position of apparent authority 
requested them to leave, they had the right to inquire of 
him as to the nature of his authority. Having failed to do 
that, we may assume they were satisfied by the appearances.

Assuming further that scienter is an element of the of­
fense charged by this trespass statute, it is clear that 
as to these petitioners the requirement of scienter was met. 
At the outset of the trial, it was agreed that the facts and 
findings of one case would be the facts and findings of all:

“Judge Jester: And the facts and findings of one 
case would be the facts and findings of all as far as 
the record is concerned?

Mr. Smith: [Willie T. Smith, one of petitioners’ 
counsel] That is correct.” (R. 6.)
The manager of the store in Greenville testified posi­

tively that he was the manager and that he requested peti­
tioners to leave. (R. 19.) The only one of the petitioners to 
testify at the trial knew the person ordering them to leave 
was the manager as she had spoken to him over the tele­
phone previously (R. 39) and she recognized him at the 
store at the time of the demonstration. (R. 37, 41.) No mat­
ter what interpretation is given the statute in this case, the 
petitioners have violated its terms and their conviction and 
punishment thereunder was proper.

Peterson et aL, Petitioners, v. City of Greenville, Respondent 23





24 Peterson et al., Petitioners, v. City of Greenville, Respondent

CONCLUSION
For the foregoing reasons, it is respectfully submitted 

that the judgments below should be affirmed.
Respectfully submitted,

THOMAS A. WOFFORD, 
THEODORE A. SNYDER, JR., 

200 Masonic Temple,
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers’ Building,
Greenville, South Carolina, 

H. F. PARTEE,
Assistant City Attorney, 

Lawyers’ Building,
Greenville, South Carolina, 

Attorneys for Respondent.
1





I n the

|§>ttpr£tn£ GImtrt nf tip HUnxtib States
October Term, 1961 

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

James R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins,

Petitioners,
— v.—

City of Greenville,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, III 
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J. P erry 
L incoln C. J enk in s , J r.

11071/2 Washington Street 
Columbia 1, South Carolina

W illie T. S mith

Greenville, South Carolina

Attorneys for Petitioners





TABLE OF CONTENTS

Citation to Opinions Below........................................  1

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

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

Constitutional and Statutory Provisions Involved .... 3

Statement ......................................................................  4

How the Federal Questions Were Raised and De­
cided Below .............................................................  9

Reasons for Granting the W rit .................................  14

I. Petitioners were denied due process of law 
and equal protection of the laws by conviction 
of trespass in refusing to leave white lunch 
counter where their exclusion was required by 
City Ordinance ..................................................  14

II. The decision below conflicts with decisions of 
this Court securing the right of freedom of 
expression under the Fourteenth Amendment 
to the Constitution of the United S ta tes.......  19

A. The enforcement of the State and City
segregation policy and the interference of 
the police violated petitioners’ right to free­
dom of expression ....................................... 19

B. The convictions deny petitioners’ right to
freedom of expression in that they rest on 
a statute which fails to require proof that 
petitioners were requested to leave by a 
person who had established authority to 
issue such request at the time g iven ........ 23

Conclusion ..................................................................... 26

PAGE



T able of Cases

page

Abrams v. United States, 250 U. S. 616....................  19

Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) .... 18
Boman v. Birmingham Transit Company, 280 F. 2d

531 (5th Cir. 1960) ..................................................  18
Breard v. Alexandria, 341 U. S. 622 .......................... 20
Brown v. Board of Education, 347 U. S. 483 ..............  18
Buchanan v. Warley, 245 U. S. 6 0 .............................  18
Burstyn v. Wilson, 343 U. S. 495 .................................  25
Burton v. Wilmington Parking Authority, 365 U. S.

715 ..............................................................................  17,18

Chaplinsky v. New Hampshire, 315 U. S. 568 ..........  25
Connally v. General Construction Co., 269 U. S. 385 .. 25
Cooper v. Aaron, 358 U. S. 1 ..................................... 22

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933 .................................................... 17

Freeman v. Retail Clerks Union, Washington Su­
perior Court, 45 Lab. Eel. Eef. Man. 2334 (1959) 22

Garner v. Louisiana, 7 L. ed. 2d 207 ..................19, 20, 24, 26
Gayle v. Browder, 352 U. S. 903, aff’g 142 F. Supp.

707, 712 (M. D. Ala. 1956) ......................................... 18
Guinn v. U. S., 238 U. S. 347 ..................................... 17

Holmes v. City of Atlanta, 350 U. S. 879 ..................  18

Lambert v. California, 355 U. S. 225 .......................... 25
Lane v. Wilson, 307 U. S. 268 ..................................... 17
Lanzetta v. New Jersey, 306 U. S. 451...................... 25
Louisiana State University and A & M College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied 
358 U. S. 819.............................................................  17

11



Marsh v. Alabama, 326 U. S. 501...............................  21
Martin v. Struthers, 319 U. S. 141.............................  20
Mayor and City Council of Baltimore v. Dawson,

350 U. S. 877 .............................................................  18
Morrissette v. U. S., 342 U. S. 246 .............................  25, 26

N.A.A.C.P. v. Alabama, 357 U. S. 449 ...................... 20
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) .........................................................  21
N.L.R.B. v. Fansteel Metal Corp., 306 U. S. 240......... 21

People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277 
(1948) ........................................................................  21

Republic Aviation Corp. v. N.L.R.B., 324 U. S. 793 .... 21

Saia v. New York, 334 U. S. 558 .................................  25
San Diego Bldg. Trades Council v. Garmon, 349 U. S.

236 .........................,.................................................... 21
Schenck v. United States, 249 U. S. 4 7 ...................... 22
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1947),

cert, denied 332 U. S. 851.......................................  22
Smith v. California, 361 U. S. 147.............................  23
State Athletic Commission v. Dorsey, 359 U. S. 533 18
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Rel. Ref. Man. 2357 (1959) ...................... 22
State of North Carolina v. Nelson, 118 S. E. 2 d ....... 11
Stromberg v. California, 283 U. S. 359 ...................... 19

Terminiello v. Chicago, 337 U. S. 1 ...........................  22
Thompson v. City of Louisville, 362 U. S. 199......... 26
Thornhill v. Alabama, 310 U. S. 88 .............................  19, 21

I l l
PAGE

United Steelworkers v. N.L.R.B., 243 F. 2d 593 (D. C.
Cir. 1956), reversed on other grounds, 357 U. S. 357 21



IV

West Virginia State Board of Education v. Barnette,
319 U. S. 624 .............................................................  19

Wieman v. Updegraff, 344 U. S. 183.........................  23
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D. C.

Cir. 1961) ................................................................... 18
Williams v. Howard Johnson’s Restaurant, 268 F.

2d 845 (4th Cir. 1959) ............................................  11,18
Winters v. New York, 333 U. S. 507 .......................... 23,25

S tatutes and Ordinances

A. & J. R. 1955 (49) 85 ............................................  16
Code of Greenville, 1953, as amended 1958 Cumula­

tive Supplement, §31-8 .................................3, 4, 7,11,14
S. C. A. & J. R. 1956 No. 917..................................... 16
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)

1695 repealing S. C. Const. Art. 11, §5 (1895) ....... 16
South Carolina Code Ann. Tit. 58, §§714-720 (1952) 16
South Carolina Code, 1952, §16-388, as amended 1960

(A. & J. R., 1960, R. 896, H. 2135) ........................... 3,4,13
South Carolina Code

§§21-761 to 779 .......    16
§21 2 ........................................................................  16
§21-230(7) .............................................................  16
§21-238 (1957 Supp.) ..........................................  16
§40-452 (1952) ...................................................... 16
§§51-1, 2.1-2.4 (1957 Supp.) .................................  16
§51-181 ................................................................... 16
§5-19 ....................................................................... 16

United States Code, §1257(3), Title 2 8 .......................  2

Other A uthorities

Public Welfare Offenses, 33 Columbia L. Rev. 55 
(1933)

PAGE

25



V

INDEX TO APPENDIX
PAGE

Opinion of the Greenville County C ourt.................. la

Opinion and Judgment of the Supreme Court of 
South Carolina .......................................................  5a

Denial of Rehearing by the Supreme Court of South 
Carolina ....................................................................  Ha





In the

£>it;irnttp (Emtrt o f %  Jlnxteb BUUb

October Term, 1961 

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

James R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins,

—v.—
Petitioners,

City of Greenville,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
SUPREME COURT OF SOUTH CAROLINA

Petitioners pray that a writ of certiorari issue to review 
the judgment of the Supreme Court of South Carolina, 
entered in the above entitled case on November 10, 1961, 
rehearing of which was denied November 30, 1961.

Citation to Opinions Below

The opinion of the Supreme Court of South Carolina, 
which opinion is the final judgment of that Court, is re­
ported at 122 S. E. 2d 826 (1961) and is set forth in the 
appendix hereto, infra pp. 5a-10a. The opinion of the Green­
ville County Court is unreported and is set forth in the 
appendix hereto, infra pp. la-4a.



2

Jurisdiction

The Judgment of the Supreme Court of South Carolina 
was entered November 10, 1961, infra pp. 5a-10a. Petition 
for rehearing was denied by the Supreme Court of South 
Carolina on November 30, 1961, infra p. 11a.

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code Section 1257(3), petitioners 
having asserted below, and asserting here, deprivation of 
rights, privileges and immunities secured by the Constitu­
tion of the United States.

Questions Presented

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter where the 
store’s policy of excluding Negroes was made pursuant to 
local custom and a segregation Ordinance of the City of 
Greenville.

2. Whether petitioner sit-in demonstrators were denied 
freedom of expression secured by the Fourteenth Amend­
ment when convicted of trespass upon refusal to move from 
a white-only lunch counter when (a) the manager did not 
request arrest or prosecution and was apparently willing 
to endure the controversy without recourse to the criminal 
process and exclusion from the counter was required by a 
City Ordinance commanding segregation in eating facilities, 
and (b) the convictions rest on a statute which fails to re­



3

quire proof that petitioners were requested to leave by a 
person who had established authority to issue such request 
at the time given.

Constitutional and Statutory 
Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case involves Section 16-388, Code of Laws of 
South Carolina, 1952, as amended 1960:

Any person:

(1) Who without legal cause or good excuse enters 
into the dwelling house, jjlace of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

(2) who, having entered into the dwelling house, place 
of business or on the premises of another person with­
out having been warned within six months not to do so, 
and fails and refuses, without good cause or excuse, 
to leave immediately upon being ordered or requested 
to do so by the person in possession, or his agent or 
representative,

Shall, on conviction, be fined not more than one hun­
dred dollars, or be imprisoned for not more than thirty 
days.

3. This case involves Section 31-8, Code of Greenville, 
1953, as amended by 1958 Cumulative Supplement (R. 56, 
57):

It shall be unlawful for any person owning, manag­
ing or controlling any hotel, restaurant, cafe, eating



4

house, boarding house or similar establishment to fur­
nish meals to white persons and colored persons in the 
same room, or at the same table, or at the same counter; 
provided, however, that meals may be served to white 
persons and colored persons in the same room where 
separate facilities are furnished. Separate facilities 
shall be interpreted to mean:

a) Separate eating utensils and separate dishes 
for the serving of food, all of which shall be distinctly 
marked by some appropriate color scheme or other­
wise ;

b) Separate tables, counters or booths;

c) A distance of at least thirty-five feet shall be 
maintained between the area where white and colored 
persons are served;

d) The area referred to in subsection (c) above 
shall not he vacant but shall be occupied by the usual 
display counters and merchandise found in a business 
concern of a similar nature;

e) A separate facility shall be maintained and used 
for the cleaning of eating utensils and dishes fur­
nished the two races.

Statement

Petitioners, ten Negro students, were arrested for staging 
a sit-in demonstration at the lunch counter of the S. H. 
Kress and Company department store on August 9, 1960 
(R. 3), in Greenville, South Carolina, a City which by 
Ordinance requires segregation in eating facilities (R. 56, 
57) and were convicted of trespass in violation of Section 
16-388, Code of Laws of South Carolina, 1952, as amended



5

1960 and sentenced to pay a fine of one hundred dollars 
($100.00) or serve thirty (30) days in jail (E. 54).

After informing the S. H. Kress and Company depart­
ment store in Greenville of their desire to be served at the 
store’s lunch counter and learning that the manager would 
not press charges against them if they sought service (R. 
43), petitioners, at about eleven A.M., seated themselves 
at the lunch counter and requested service (R. 40, 41). 
White persons were seated at the counter at the time (R. 
19, 20, 41). Petitioners were told, “I ’m sorry, we don’t 
serve Negroes” (R. 41).

Also at about eleven A.M., Captain Bramlette of the 
Greenville Police Department received a call to go to the 
Kress store (R. 5). He did not know where the call came 
from (R. 5). He was told that there were colored young 
boys and girls at the lunch counter (R. 9) and he knew that 
the City of Greenville had an Ordinance prohibiting col­
ored and white persons being seated at the same lunch 
counter (R. 9). He arrived at the store with several city 
policemen and found two agents of the South Carolina Law 
Enforcement Department already present at the lunch 
counter (R. 6). He noticed the ten petitioners seated at 
the lunch counter (R. 6) which could accommodate almost 
fifty-nine persons (R. 27). The petitioners were orderly 
and inoffensive in demeanor (R. 12, 25, 26).

In the presence of the police officers the counter lights 
were turned out (R. 19) and G. W. W7est, manager of 
the store requested “ . . . everybody to leave, that the lunch 
counter was closed” (R. 19). At the trial, petitioners’ coun­
sel was denied permission to ascertain whether this re­
quest followed arrangement or agreement with the Police 
(R. 23, 24, 26). Neither Mr. West, the manager, nor the 
police officers, testified that West identified himself or his 
authority to the petitioners either before or after making



6

this announcement.1 When petitioners made no attempt to 
leave the lunch counter, Captain Bramlette placed them 
under arrest (R. 20).1 2

Store manager West at no time requested that defen­
dants be arrested (R. 26):

Q. And you at no time requested Captain Bramlette 
and the other officers to place these defendants under 
arrest, did you? A. No, I did not.

Q. That was a matter, I believe, entirely up to the 
law enforcement officers? A. Yes, sir.

White persons were seated at the counter when the an­
nouncement to close was made (R. 20, 33, 34) but no white 
person was arrested (R. 34). As soon as petitioners were 
removed by the police, the lunch counter was reopened 
(R. 24, 34).

West testified that one of the store’s employees called 
the police (R. 23) but when petitioners’ counsel attempted 
to bring out any arrangements or agreements between the 
store and the police, the Court denied permission to pro­
ceed (R. 23-24, 26). But West testified that he closed the 
lunch counter because of the Greenville City Ordinance 
requiring racial segregation in eating facilities and local 
custom:

1 There is evidence that one of the petitioners, Doris Wright, had 
spoken with the store manager prior to the demonstration (R. 43), 
but the record is without evidence that any of the other petitioners 
were informed or had reason to know that the person who re­
quested them to leave had authority to do so. Doris Wright, more­
over, testified that the request to leave was made by the Police and 
not by manager West who “ . . . was coming from the back at the 
time . . . the arrests were being made” (R. 42, 47).

2 Four other Negro demonstrators were arrested hut their cases 
were disposed of by the juvenile authorities (R. 6).



7

Q. Mr. West, why did you order your lunch counter 
closed? A. I t ’s contrary to local custom and it’s also 
the Ordinance that has been discussed (R. 25).

On cross examination, Captain Bramlette, the arresting 
officer, evidenced confusion as to whether defendants were 
arrested because they violated Greenville’s Ordinance re­
quiring segregation in eating facilities or the State of South 
Carolina’s trespass statute (R. 16, 17):

Q. Did the manager of Kress’, did he ask you to 
place these defendants under arrest, Captain Bram­
lette ? A. He did not.

Q. He did not? A. No.
Q. Then why did you place them under arrest? A. 

Because we have an Ordinance against it.
Q. An Ordinance? A. That’s right.
Q. But you just now testified that you did not have 

the Ordinance in mind when you went over there? 
A. State law in mind when I went up there.

Q. And that isn’t the Ordinance of the City of Green­
ville, is it? A. This supersedes the order for the City 
of Greenville.

Q. In other words, you believe you referred to an 
ordinance, but I believe you had the State statute in 
mind? A. You asked me have I, did I have knowledge 
of the City Ordinance in mind when I went up there 
and I answered I did not have it particularly in my 
mind, I said I had the State Ordinance in my mind.

Q. I  see and so far this City Ordinance which re­
quires segregation of the races in restaurants, you at 
no time had it in mind, as you went about answering 
the call to Kress’ and placing these people under ar­
rest? A. In my opinion the state law was passed re­
cently supersedes our City Ordinance.



8

This “State Law” is the trespass statute petitioners were 
charged with violating. Previously, Captain Bramlette had 
testified that he thought the State’s trespass statute pro­
hibited “sit-ins.” He later admitted that the statute did 
not mention “sit-ins” (R. 14).

Kress and Company is a large nationwide chain (R. 21) 
which operates junior department stores (R. 21). The 
Greenville branch has fifteen to twenty departments, sells 
over 10,000 items and is open to the general public (R. 21, 
22). Negroes and whites are invited to purchase and are 
served alike with the exception that Negroes are not served 
at the lunch counter which is reserved for whites (R. 22). 
Kress’s national policy is “to follow local customs” with 
regard to serving Negroes and whites at its lunch counters 
(R. 22, 23).

Petitioners were tried and convicted in the Recorder’s 
Court of Greenville before the City Recorder, sitting with­
out a jury, and sentenced to pay a fine of one hundred 
dollars ($100.00) or serve thirty (30) days in the City jail 
(R. 2, 54).

Petitioners appealed the judgment of Recorder’s Court 
to the Greenville County Court, which Court dismissed the 
appeal on March 17,1961 (R. 57-60).

The Supreme Court of South Carolina entered its judg­
ment, affirming the judgment and sentences below on No­
vember 10, 1961, infra pp. 5a-10a, and denied rehearing on 
November 30, 1961, infra p. 11a.



9

How the Federal Questions Were Raised

At the commencement of the trial in the Recorder’s Court 
of the City of Greenville, petitioners moved to quash the 
informations and dismiss the warrants on the ground that 
the charge was too uncertain and indefinite to apprise peti­
tioners of the charge against them, in violation of the due 
process clause of the Fourteenth Amendment to the Con­
stitution of the United States (R. 2, 3). The motion was 
denied by the Court (R. 3).

At the close of the prosecution’s case, petitioners moved 
to dismiss the warrants against them:

“The evidence presented on the charge shows conclu­
sively that by arresting the defendants the officers were 
aiding and assisting the owners and managers of 
Kress’ Five and Ten Cent Store, in maintaining their 
policies of segregating or excluding service to Negroes 
at its lunch counter . . .  in violation of defendants’ 
rights to due process of law, and equal protection of 
the laws, under the 14th Amendment to the United 
States Constitution” (R. 28, 29);

“that the warrant which charges them with trespass 
after warning, the designation of the act being set 
forth as invalid, in that the evidence establishes merely 
that defendants were peacefully upon the premises of 
S. H. Kress & Company, which establishment is per­
forming an economic function invested with the public 
interest as customers, visitors, business guests or in­
vitees and there is no basis for the charge recited by 
the warrants other than an effort to exclude these de­
fendants from the lunch counters of Kress’ Five and 
Ten Cent Store, because of their race and color . . . 
thereby depriving them of liberty without due process



10

of law and equal protection of the laws secured to them 
by the 14th Amendment to the United States Consti­
tution” (R. 29, 30);

“The designation of the act being set forth in the war­
rant under which all these defendants, who are 
Negroes, were arrested and charged is on the evidence 
unconstitutional as applied to the defendants, in that 
it makes it a crime to be on property open to the public 
after being asked to leave because of race and color 
in violation of the defendants’ rights under the due 
process and equal protection clauses of the 14th Amend­
ment to the United States Constitution” (R. 30).

These motions were denied by the Court (R. 29, 30).

Petitioners further moved for a dismissal on the ground 
that the City had not established a prima facie case (R. 30). 
This motion was denied (R. 30).

At the close of the trial, petitioners renewed all motions 
for dismissal made at the conclusion of the City’s case 
(R. 52). These motions were again denied (R. 52). Fur­
ther, petitioners moved for dismissal of the cases on the 
ground that:

“ . . . the Negro defendants, were arrested and charged 
under a statute which is itself unconstitutional on 
its face, by making it a crime to be on public property 
after being asked to leave by an individual, at such 
individual’s whim. In that, such statute does not re­
quire that the person making the demand to leave, pre­
sent documents or other evidence of possessing a right 
sufficient to apprise the defendants of the validity of 
the demand to leave. All of which renders the statute 
so vague and uncertain, as applied to the defendants, 
as to violate their rights under the due process clause



11

This motion was denied by the Court (R. 53).

At the close of petitioners’ trial, but before judgment, 
petitioners’ counsel moved to place Greenville’s segrega­
tion in eating facilities Ordinance in evidence for considera­
tion in regard to the judgment (R. 53). The Court denied 
this motion (R. 54) but the Ordinance was placed in record 
on appeal (R. 56).

Subsequent to judgment, petitioners renewed all motions 
made prior thereto by moving for arrest of judgment or, 
in the alternative, a new trial (R. 54). The motion was not 
granted (R. 54, 55).

After considering petitioners’ exceptions (R. 60), the 
Greenville County Court, on appeal held:

“ . . . the appeal should be dismissed because the prose­
cution was conducted under a valid constitutional stat­
ute and in addition the appeal should be dismissed upon 
the ground that S. H. Kress and Company has a right 
to control its own business. We think this position is 
fully sustained under the recent case of Williams v. 
Johnson, Res. 344, 268 Fed. (2d) 845 and the North 
Carolina case of State v. Nelson decided January 20, 
1961 and reported in 118 S. E. (2d) at page 47” (R. 60).

In appealing to the Supreme Court of South Carolina, 
petitioners set forth the following exceptions to the judg­
ment below (R. 61-63):

“1. The Court erred in refusing to hold that the 
warrant is vague, indefinite and uncertain and does 
not plainly and substantially set forth the offense 
charged, thus failing to provide appellants with suffi­

of the 14th Amendment to the United States Consti­
tution . . . ”



12

cient information to meet the charges against them as 
is required by the laws of the State of South Carolina, 
in violation of appellants’ rights to due process of law, 
secured by the Fourteenth Amendment to the United 
States Constitution.

2. The Court erred in refusing to hold that the 
State failed to establish the corpus delicti.

3. The Court erred in refusing to hold that the 
State failed to prove a prima facie case.

4. The Court erred in refusing to hold that the evi­
dence of the State shows conclusively that by arresting 
appellants the officers were aiding and assisting the 
owners and managers of S. H. Kress and Company in 
maintaining their policies of segregating or excluding 
service to Negroes at their lunch counters on the ground 
of race or color, in violation of appellants’ right to due 
process of law and equal protection of the laws, se­
cured by the Fourteenth Amendment of the United 
States Constitution.

5. The Court erred in refusing to hold that the evi­
dence establishes merely that the appellants were 
peacefully upon the premises of S. H. Kress and Com­
pany, an establishment performing an economic func­
tion invested with the public interest as customers, 
visitors, business guests or invitees, and that there is 
no basis for the charge recited by the warrants other 
than an effort to exclude appellants from the lunch 
counter of said business establishment because of their 
race and color, thereby depriving appellants of liberty 
without due process of law and equal protection of 
the laws, secured by the Fourteenth Amendment to 
the United States Constitution.



13

6. The Court erred in refusing to hold that the stat­
ute appellants are alleged to have violated, to wit, Act 
No. 743 of the Acts and Joint Resolutions of the Gen­
eral Assembly of South Carolina for 1960 (R. 896, 
H. 2135), is unconstitutional on its face by making it 
a crime to be on public property after being asked to 
leave by an individual at such individual’s whim and 
does not require that the person making the demand to 
leave present documents or other evidence of pos­
sessory right sufficient to apprise appellants of the 
validity of the demand to leave, all of which renders 
the statute so vague and uncertain as applied to ap­
pellants as to violate their rights under the due process 
clause of the Fourteenth Amendment to the United 
States Constitution.

7. The Court erred in refusing to permit defendants’ 
counsel to elicit relevant testimony concerning coopera­
tion of Store Managers and Police in the City of Green­
ville, South Carolina in pursuing the store managers’ 
policies, customs and practices of segregating or ex­
cluding Negroes from their lunch counters.”

In disposing of petitioners’ constitutional objections, the 
Supreme Court of South Carolina held that the charge in 
the warrant was “definite, clear and unambiguous” infra 
p. 7a; that “the act makes no reference to race or color 
and is clearly for the purposes of protecting the rights of 
the owners or those in control of private property. Irrespec­
tive of the reason for closing the counter, the evidence is 
conclusive that defendants were arrested because they chose 
to remain upon the premises after being requested to leave 
by the manager . . . and their constitutional rights were 
not violated when they were arrested for trespass,” infra 
pp. 8a, 9a.



14

The Court disposed of Greenville’s Ordinance requiring 
segregation in eating facilities as follows:

“Upon cross-examination of Capt. G. 0. Bramlette 
of the Greenville City Police Department, it was 
brought out that the City of Greenville has an ordi­
nance making it unlawful for any person owning, man­
aging, or controlling any hotel, restaurant, cafe, etc., 
to furnish meals to white persons and colored persons 
except under certain conditions; and Defendants con­
tend that they were prosecuted under this ordinance; 
however, the warrant does not so charge and there is 
nothing in the record to substantiate this contention. 
The ordinance was made a part of the record upon 
request of defendants’ counsel but defendants were 
not charged with having violated any of its provisions. 
The question of the validity of this ordinance was not 
before the trial Court and therefore not before this 
Court on appeal.”

Reasons for Granting the Writ

The Court below decided this case in conflict with prin­
ciples declared by this Court as is further set forth below:

I.

Petitioners were denied due process of law and equal 
protection of the laws by conviction of trespass in re­
fusing to leave white lunch counter where their exclu­
sion was required by City Ordinance.

Although formally charged with violation of South Caro­
lina’s trespass statute, petitioners were actually convicted 
of having violated the segregation policy of the City of 
Greenville. This policy is expressed in Section 31-8, Code



15

of Greenville, 1953, as amended 1958 Cumulative Supple­
ment, see supra p. 3, making it unlawful “ to furnish 
meals to white persons and colored persons in the same 
room, or the same table, or at the same counter . . . ” 
(R. 56-57).

G. W. West, the Manager of the department store, and 
a Kress employee for fifteen years3 (R. 20) testified ex­
plicitly that exclusion of Negroes from the lunch counter 
and the closing of the counter when petitioners sought 
service, was caused by the City Ordinance requiring seg­
regation in eating facilities (R. 25).

Confirmation that the police were enforcing segregation 
is indicated by the fact that some whites seated at the 
lunch counter during the demonstration remained seated 
and were not arrested (R. 34) although the announcement 
to leave was made in general terms (R. 19) and at least 
five policemen were present (R. 5, 6). Moreover, the coun­
ter was reopened as soon as petitioners were removed by 
the police (R. 25).

Further confirmation that the policy of enforcing segre­
gation was the City’s appears from how the arrests were 
made. The police proceeded to Department Store without 
requests to arrest by the management (R. 5), and arrested 
petitioners without a request from the management (R. 26). 
The manager of the store testified that arrest was entirely 
the decision of the police (R. 26) and it does not appear 
that the management signed any complaint against peti­
tioners.

Prior to the demonstration, a representative of peti- 
tioers had discussed the question of service with the man­

3 West came to live in Greenville on February 3, 1960, the day 
he became Manager of the Kress Store. Prior to this he worked 
for Kress in other Cities (R. 20, 21).



16

ager and had been told that the criminal process would 
not be invoked by the store (R. 43). This was not the first 
demonstration petitioners had held in Kress’s (R. 44). 
When petitioners’ counsel attempted to question the man­
ager as to any agreement or arrangement he had made with 
the police prior to the closing of the lunch counter, the 
Court denied permission to proceed (R. 23, 24, 26).

V

On this record it is clear that Kress and Company would 
have been willing to cope with the controversy within the 
realm of social and economic give and take absent the Ordi­
nance of the City of Greenville requiring segregation and 
the force of local customs supported by the City and the 
State of South Carolina.4 If, as the manager testified, 
Kress & Company maintained the policy of segregation 
because of the Ordinance, then there can be no other con­
clusion than that the City, by the Ordinance and by arrest 
and criminal conviction, has “place[d] its authority behind 
discriminatory treatment based solely on color . . . ” Mr. * S.

4 There can be little doubt that segregation of the races had 
been and is the official policy of the State of South Carolina. Cf.
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 re­
pealing S. C. Const. Art. 11, §5 (1895) (which required legislature 
to maintain free public schools). S. C. Code §§21-761 to 779 (regu­
lar school attendance) repealed by A. & J. R. 1955 (49) 85; §21-2 
(appropriations cut off to any school from which or to which any 
pupil transferred because of court order; §21-230(7) (local trustees 
may or may not operate schools); §21-238 (1957 Supp.) (school 
officials may sell or lease school property whenever they deem it 
expedient); S. C. Code §40-452 (1952) (unlawful for cotton textile 
manufacturer to permit different races to work together in same 
room, use same exits, bathrooms, etc., $100 penalty and/or im­
prisonment at hard labor up to 30 days; S. C. A. & J. R. 1956 
No. 917 (closing park involved in desegregation su it); S. C. Code 
§§51-1, 2.1-2.4 (1957 Supp.) (providing for separate State Parks) 
§51-181 (separate recreational facilities in cities with population 
in excess of 60,000); §5-19 (separate entrances at circus); S. C. 
Code Ann. Tit. 58, §§714-720 (1952) (segregation in travel 
facilities).



17

Justice Frankfurter dissenting in Burton v. Wilmington 
Parking Authority, 365 U. S. 715, 727. The City Ordinance 
is no abstract exhortation but obligatory by its terms, to 
which were attached criminal sanctions, and it is uncon­
tradicted that one of the reasons Kress & Company chose 
a policy of racial segregation was because of the Ordinance.

The discriminatory practice of Kress, the request that 
petitioners leave and their arrest and conviction, result, 
therefore, directly from the formally enacted policy of the 
City of Greenville, South Carolina, and not (so far as 
this record indicates) from any individual or corporate 
business decision or preference of the management of the 
store to exclude Negroes from the lunch counter. Whatever 
the choice of the property owner may have been, here the 
City made the choice to exclude petitioners from the prop­
erty through its segregation Ordinance. This City segrega­
tion policy was enforced by petitioners’ arrests, convictions 
and sentences in the South Carolina courts.

The Supreme Court of South Carolina dismisses ref­
erence to the City segregation Ordinance by stating “The 
Ordinance was made a part of the record upon request of 
defendants’ counsel but defendants were not charged with 
having violated any of its provisions.” But the Constitu­
tion forbids “sophisticated as well as simple-minded modes 
of discrimination.” Lane v. Wilson, 307 U. S. 268, 275.5

By enacting, first, that persons who remain in a restau­
rant when the owner demands that they leave are “tres­
passers,” and then enacting that restaurateurs may not 5

5 Racial segregation imposed under another name often has been 
condemned by this Court. G uinn  v. U. 8 ., 238 U. S. 347; L an e  v. 
W ilson , su p ra ;  D a v is  v. Sch n ell, 81 F. Supp. 872 (S. D. Ala. 1949) 
aff’d 336 U. S. 933; and see L ou isian a  S ta te  U n iv e rs ity  a n d  A . & 
M. C ollege v. L u d le y , 252 F. 2d (5th Cir. 1958) cert, denied 358 
U. S. 819.



18

permit Negroes to remain in white restaurants, South 
Carolina has very clearly made it a crime (a trespass) for 
a Negro to remain in a white restaurant. The manager 
of Kress’s admits as much when he testified that the lunch 
counter was closed and petitioners asked to leave because 
of the Ordinance (R. 25).

This case thus presents a plain conflict with numerous 
prior decisions of this Court invalidating state efforts to 
require racial segregation. Buchanan v. Warley, 245 U. S. 
60; Brown v. Board of Education, 347 U. S. 483; Gayle v. 
Browder, 352 U. S. 903 aff’g 142 F. Supp. 707, 712 (M. D. 
Ala. 1956); Holmes v. City of Atlanta, 350 U. S. 879; Mayor 
and City Council of Baltimore v. Dawson, 350 U. S. 877; 
State Athletic Commission v. Dorsey, 359 U. S. 533; cf. 
Burton v. Wilmington Parking Authority, 365 U. S. 715. 
Note the dissenting opinion of Judges Bazelon and Edger- 
ton in Williams v. Hot Shoppes, Inc., 293 F. 2d 835, 843 
(D. C. Cir. 1961) (dealing primarily with the related issue 
of whether a proprietor excluding a Negro under an er­
roneous belief that this was required by state statute was 
liable for damages under the Civil Rights Act; the majority 
applied the equitable abstention doctrine). Indeed, Williams 
v. Howard Johnson’s Restaurant, 268 F. 2d 845, 847 (4th 
Cir. 1959) relied upon by the Supreme Court of South Caro­
lina below, indicated that racial segregation in a restau­
rant “in obedience to some positive provision of State law” 
would be a violation of the Fourteenth Amendment. See 
also Boman v. Birmingham Transit Company, 280 F. 2d 
531 (5th Cir. 1960); Baldwin v. Morgan, 287 F. 2d 750 
(5th Cir. 1961).



19

n.
The decision below conflicts with decisions of this 

Court securing the right of freedom of expression under 
the Fourteenth Amendment to the Constitution of the 
United States.

A. The Enforcem ent o f the State and City Segregation  
Policy and the Interference o f the Police Violated  
Petitioners’ R ight to Freedom  o f Expression .

Petitioners were engaged in the exercise of free ex­
pression, by verbal and nonverbal requests to the manage­
ment for service, and nonverbal requests for nondiscrimina- 
tory lunch counter service, implicit in their continued 
remaining in the dining area when refused service. As Mr. 
Justice Harlan wrote in Garner v. Louisiana: “We would 
surely have to be blind not to recognize that petitioners 
were sitting at these counters, when they knew they would 
not be served, in order to demonstrate that their race was 
being segregated in dining facilities in this part of the 
country.” 7 L. ed. 2d at 235-36. Petitioners’ expression 
(asking for service) was entirely appropriate to the time 
and place at which it occurred. They did not shout or 
obstruct the conduct of business. There were no speeches, 
picket signs, handbills or other forms of expression in the 
store possibly inappropriate to the time and place. Rather 
they offered to purchase in a place and at a time set aside 
for such transactions. Their protest demonstration was a 
part of the “free trade in ideas” (Abrams v. United States, 
250 U. S. 616, 630, Holmes, J ., dissenting), within the range 
of liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U. S. 359 
(display of red flag); Thornhill v. Alabama, 310 U. S. 88 
(picketing); West Virginia State Board of Education v.



20

Barnette, 319 U. S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 U. S. 449 (freedom of association).

Questions concerning freedom of expression are not re­
solved merely by reference to the fact that private property 
is involved. The Fourteenth Amendment right to free ex­
pression on private property takes contour from the cir­
cumstances, in part determined by the owner’s privacy, 
his use and arrangement of his property. In Breard v. 
Alexandria, 341 U. S. 622, the Court balanced the “house­
holder’s desire for privacy and the publisher’s right to 
distribute publications” in the particular manner involved, 
upholding a law limiting the publisher’s right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U. S. 
141 where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of asser­
tion and the action of the State, through its officers, its 
customs and its creation of the property interest are to be 
taken into account.

In this constitutional context it is crucial, therefore, 
that the stores implicitly consented to the protest and did 
not seek intervention of the criminal law. For this case 
is like Garner v. Louisiana, swpra, where Mr. Justice Har­
lan, concurring, found a protected area of free expression 
on private property on facts regarded as involving “the 
implied consent of the management” for the sit-in demon­
strators to remain on the property. Petitioners informed 
the management that there would be a protest and received 
assurance that the management would not resort to the 
criminal process. Petitioners were not asked to leave the 
counter until the police arrived and the manager talked 
with the police. It does not appear that anyone connected 
with the store signed an affidavit or complaint against 
petitioners. The police officer proceeded immediately to



21

arrest the petitioners without any request to do so on 
the part of anyone connected with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at this 
lunch counter, a dispute being resolved by persuasion and 
pressure in a context of economic and social struggle be­
tween contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U. S. 236.

But even to the extent that the store may have acquiesced 
in the police action a determination of free expression 
rights still requires considering the totality of circum­
stances respecting the owner’s use of the property and the 
specific interest which state judicial action supports. Marsh 
v. Alabama, 326 U. S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 U. S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir. 
1956), reversed on other grounds, 357 U. S. 357, and com­
pare the cases mentioned above with N.L.R.B. v. Fansteel 
Metal Corp., 306 U. S. 240, 252, condemning an employee 
seizure of a plant. In People v. Barisi, 193 Misc. 934, 86



22

N. Y. S. 2d 277, 279 (1948) the Court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “circumscribed by the constitutional rights of those 
who use it.” See also Freeman v. Retail Clerks Union, 
Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent state 
interest being subserved by these trespass prosecutions is 
support of the property owner’s discrimination, a policy 
which the manager testified was caused by the State’s seg­
regation custom and policy and the express terms of the 
City Ordinance. This is the most that the property owner 
can be found to have sought.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the State has the right to prevent. 
Schenck v. United States, 249 U. S. 47, 62. The only “sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimina­
tion of racial discrimination, but this is not an “evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v. 
Chicago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877 
(8th Circuit, 1957), cert, denied 332 U. S. 851.



23

B. The Convictions Deny Petitioners’ R ight to Freedom  
of E xpression  in That They Rest on a Statute Which 
Fails to R equire P ro o f That Petitioners Were R e­
quested to Leave by a Person  Who H ad Established  
Authority to Issue Such  R equest at the T im e Given.

In the courts below petitioners asserted that the statute 
in question denied due process of law secured by the Four­
teenth Amendment to the Constitution of the United States 
in that it did not require that the person requesting them 
to leave the lunch counter establish his authority to make 
the demand. Although raised and pressed below by peti­
tioners, the Supreme Court of South Carolina failed to 
construe the statute to require proof that the person who 
requested them to leave establish his authority.

If in the circumstances of this case free speech is to be 
curtailed, the least one has a right to expect is reasonable 
notice in the statute under which convictions are obtained, 
to that effect. Winters v. New York, 333 U. S. 507. Here, 
absent a statutory provision that the person making the 
request to leave be required to communicate that authority 
to the person asked to leave, petitioners, in effect, have 
been convicted of crime for refusing to cease their pro­
tests at the request of a person who could have been a 
stranger. The stifling effect of such a rule on free speech 
is obvious. See Wieman v. Updegraff, 344 U. S. 183; Smith 
v. California, 361 U. S. 147.

The vice of lack of fair notice was compounded where, 
as here, petitioners were convicted under a statute which 
designated two separate crimes, see supra p. 3, and a 
warrant which failed to specify under which section the 
prosecution proceeded (R. 2). Moreover, the warrant and 
the trial court stated that petitioners were charged with 
“trespass after warning” (R. 2) (Section (1) of the Stat­
ute speaks of being “warned” ; Section (2) “without having 
been warned”), but the prosecution offered no proof that



24

petitioners had been “warned” within six months as re­
quired by Section (1) and apparently proceeded on the 
theory that Section (2) of the statute was involved.

This record is barren of any attempt by the City of 
Greenville to prove that the person who requested peti­
tioners to leave identified his authority to do so to petition­
ers, and the courts of South Carolina, although urged by 
petitioners, failed to require such proof. While one of the 
petitioners brought out, when questioned by her own coun­
sel, that she had spoken to the manager previously,6 there 
is no evidence that the other petitioners knew the authority 
of the person who gave the order to leave. With rights 
to freedom of expression at stake, the City should be re­
quired to provide clear and unambiguous proof of all the 
elements of the crime. Identification of authority to make 
the request to leave is all the more important because of 
the active role played by the police in this case, for if the 
police were enforcing segregation clearly petitioners had 
a right to remain at the counter. Garner v. Louisiana, 
supra.

No one ordinarily may be expected to assume that one 
who tells him to leave a public place, into which the pro­
prietor invited him and in wdiich he has traded, is authorized 
to utter an order to leave when no claim of such authority 
is made. This is especially true in the case of a Negro seat­
ing himself in a white dining area in Greenville, South 
Carolina—obviously a matter of controversy and one which 
any stranger, or the police of a city with a segregation 
ordinance, might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal 
when so ordered to do so by a person who later turns

6 She also testified that the police, not the manager, gave the 
order for petitioners to leave. See Note 1, su pra .



25

out to have been in authority without a claim of authority 
at the time, it means as a practical matter, that one must 
depart from public places whenever told to do so by any­
one; the alternative is to risk fine or imprisonment. Such 
a rule might be held a denial of due process. Cf. Lambert v. 
California, 335 U. S. 225. But if such is the rule the statute 
gives no fair warning, Winters v. New York, supra; Burstyn 
v. Wilson, 343 U. S. 495; Saia v. New York, 334 U. S. 558; 
Chaplmsky v. New Hampshire, 315 U. S. 568. Absent such 
notice, petitioners surely were entitled to assume that one 
may go about a public place under necessity to observe 
orders only from those who claim with some definiteness 
the right to give them.

Indeed, as a matter of due process of law, if it is the 
rule one must obey all orders of strangers to leave public 
places under penalty of criminal conviction if one uttering 
the order later turns out to have had authority, petitioners 
are entitled to more warning of its harshness than the stat­
ute’s text affirmed. Cf. Connally v. General Construction 
Co., 269 U. S. 385; Lametta v. New Jersey, 306 U. S. 451. 
Otherwise many persons—like these petitioners—may be 
held guilty of crime without having intended to do wrong. 
This Court has said, however, that:

The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the 
human will and a consequent ability and duty of the 
normal individual to choose between good and evil. 
Morrissette v. U. S., 342 U. S. 246, 250.

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev.



26

55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U. S. at 252-260.

On the other hand, however, if South Carolina were to 
read a scienter provision into this ordinance for the first 
time—which it has failed to do although the issue was 
squarely presented in this case—the lack of the necessary 
element of guilt, notice of authority, would require reversal 
under authority of Garner v. Louisiana, supra; Thompson 
v. City of Louisville, 362 U. S. 199.

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

Bespectfully submitted,

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, I II  
Michael Meltsner

10 Columbus Circle 
New York 19, New York

Matthew J . P erry 
L incoln C. J enk ins , J r.

1107% Washington Street 
Columbia 1, South Carolina

W illie T. S mith

Greenville, South Carolina

Attorneys for Petitioners



l a

APPENDIX

Order

I n  the

GREENVILLE COUNTY COURT

J ames R ichard P eterson, et al., 

—v.—

City of Greenville.

APPEAL FROM THE RECORDER’S COURT 

OF THE CITY OF GREENVILLE

This is an appeal to this Court from the Recorder’s 
Court of the City of Greenville.

The Defendants were tried on August 11, 1960, in the 
Greenville City Recorder’s Court before the Recorder, 
John V. Jester, upon a charge of violating the Act of 
May 20, 1960, which in substance makes any person a tres­
passer who refuses to leave the premises of another im­
mediately upon being requested to leave.

The Act is very simple and plain in its language.
It appears that on August 9, 1960, the ten Defendants, 

who are making this appeal, with four other young Negro 
youths went to the store of S. H. Kress and Company and 
seated themselves at the lunch counter at the store. At the 
trial there seemed to be some attempt to minimize the evi­
dence of the officers involved as to whether or not the 
Defendants, now Appellants, refused to leave the premises 
immediately upon the request of the store manager that



2a

they should leave. However, in the argument of the chief 
counsel for the Appellants, all question of doubt in this 
respect is resolved in favor of the City. According to the 
written Brief of the Defendants, the Defendants now 
“seated themselves at the lunch counter where they sought 
to be served. They were not served and, in fact, were 
told by the management that they could not be served and 
would have to leave. The Defendants refused to leave and 
remained seated at the lunch counter.”

The act clearly makes it a criminal offense for any 
person situated as the Defendants were to refuse or fail 
to “immediately” depart upon request or demand.

Therefore, the main question before this Court is whether 
or not the Appellants were lawfully tried on a charge of 
violating this Act by refusing to leave the lunch counter 
immedately when requested to do so.

In the oral argument counsel for the Appellants seemed 
to reply in a vague manner upon an “unconstitutional ap­
plication” of the Statute.

As the Court views the statute it was merely a statutory 
enlargement and re-enactment of the common law in South 
Carolina which has been recognized for more than a half 
century to the effect that when a property owner, whether 
it be a dwelling house or place of business, has the right 
to order any person from the premises whether they be an 
invitee or an uninvited person. This principle of law was 
fully and clearly reaffirmed by the Supreme Court of South 
Carolina in the recent case of State v. Stamer, et al., 49 
S. E. (2d) 209.

For scores of years South Carolina has had a number 
of Statutes with reference to the law of trespass. They 
are now embodied as Article 5, Code of 1952, embracing 
Sections 16-381 to 16-394. Section 17-286 particularly refers 
to trespasses after notice.

O rd er  o f  G reen v ille  C o u n ty  C o u rt



3a

Therefore, the Act of May 20, 1960, now designated in 
the 1952 Code as Sec. 17-388 is the controlling factor here. 
There can be no doubt that the field into which the Legisla­
ture entered by the enactment of this particular law was 
a well recognized portion of the law of the State of South 
Carolina. The Constitutionality of the Act cannot be ques­
tioned.

Every presumption will be made in favor of the Con­
stitutionality of a statute. There are more than fifty de­
cisions by the Supreme Court of South Carolina to this 
effect. The United States Supreme Court in many cases 
has recognized that there is a presumption in favor of the 
constitutionality of an Act of Congress or of a State or 
Municipal legislative body. In the case of Davis v. Depart­
ment of Labor, 317 U. S. 255, 87 Law Ed. 250, the United 
States Supreme Court held that there is a presumption 
of constitutionality in favor of State statutes. Time and 
time again the Supreme Court of South Carolina has held 
“the law is well settled that the burden is on the person 
claiming the Act to be unconstitutional to prove and show 
that it is unconstitutional beyond a reasonable doubt”. 
McCollum v. Snipes, 49 S. E. 12, 213 S. C. 254.

In 16 C. J. S. 388, we find this language, “Statutes are 
presumed to be valid and a party attacking a statute as 
unconstitutional has the burden of proof”. Over five hun­
dred decisions from all over the United States are cited 
to support this statement of the law.

The argument of counsel for the Appellants failed to 
raise a single serious question as to the constitutionality 
of the statute.

Counsel for Appellants insisted upon the right of the 
Defendants to adduce evidence of some alleged conspiracy 
or plan on the part of the officers of the law and store

O rd e r  o f G reen v ille  C o u n ty  C o u rt



4a

management to bring about this prosecution. We think 
the sole issue in the Recorder’s Court was whether or not 
the Defendants were guilty of violating the Act in ques­
tion. They now boldly admit through counsel that they 
defied the management of the store and refused to leave 
when requested. Had they departed from the store im­
mediately, as the law requires they should have, there 
would have been no arrest, but apparently in accordance 
with a preconceived plan they all kept their seats and 
defied the management and refused to leave the premises.

Evidence of any other motive on the part of the manage­
ment would have thrown no light on this case.

In my opinion the appeal should be dismissed because 
the prosecution was conducted under a valid constitu­
tional statute and in addition the appeal should be dis­
missed upon the ground that S. H. Kress and Company 
had a right to control its own business. We think this 
position is fully sustained under the recent case of Wil­
liam v. Johnson, Res. 344, 268 Fed. (2d) 845, and the North 
Carolina case of State v. Nelson, decided January 20, 1961, 
and reported in 118 S. E. (2d) at page 47.

I carefully considered all the exceptions made by the 
Appellants and I am unable to sustain any of them. It is, 
therefore,

Ordered, adjudged and decreed that the Appeal be dis­
missed.

J ames H. Price, 
Special Judge, 

Greenville County Court.

O rd er  o f G reen v ille  C o u n ty  C o u rt

March 17, 1961.



5a

THE STATE OF SOUTH CAROLINA 
I n  the S upreme Court

Opinion

City op Greenville,
Respondent,

— v.—

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins,

Appellants.

Appeal From Greenville County 

James H. Price, Special County Judge

Case No. 4761 

Opinion No. 17845 

Filed November 10, 1961

T aylor, C.J. : Defendants were convicted of the charge 
of trespass after notice in violation of Section 16-388, 
Code of Laws of South Carolina, 1952, as amended, and 
appeal. By agreement of counsel, all bail bonds were con­
tinued in effect pending disposition of this appeal.

On August 9, 1960, in response to a call, law enforce­
ment officers were dispatched to the S. H. Kress Store in 
Greenville, South Carolina, a member of a large chain of



6a

stores operated throughout the United States and described 
as a junior department store. Upon arrival they found 
the ten defendants and four others who were under six­
teen years of age, all Negroes, seated at the lunch counter. 
There is testimony to the effect that because of the local 
custom to serve white persons only at the lunch counter 
the manager of the store announced that the lunch counter 
was closed, the lights were extinguished, and all persons 
were requested to leave. The white persons present left, 
but all Negroes refused to leave; and those above the age 
of sixteen were thereupon charged with trespass after 
notice as provided in the aforementioned section of the 
Code, which provides:

“Any person:

“ (1) Who without legal cause or good excuse enters 
into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

“ (2) Who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not 
to do so, and fails and refuses, without good cause or 
excuse, to leave immediately upon being ordered or 
requested to do so by the person in possession, or his 
agent or representative,

“Shall, on conviction, be fined not more than one 
hundred dollars or be imprisoned for not more than 
thirty days.”

Defendants contend, first, error in refusing to dismiss 
the warrant upon the ground that the charge contained 
therein was too indefinite and uncertain as to apprise the

O pin ion , S o u th  C a ro lin a  S u p re m e  C ou rt



7a

defendants as to what they were actually being charged 
with.

Defendants were arrested in the act of committing the 
offense charged, they refused the manager’s request to 
leave after the lunch counter had been closed and the lights 
extinguished, and there could have been no question in 
defendants’ minds as to what they were charged with. 
Further, there was at that time no claim of lack of suffi­
cient information, and upon trial there was no motion to 
require the prosecution to make the charge more definite 
and certain. Defendants rely upon State v. Randolph,
et al.,----- S. C .------ , 121 S. E. (2d) 349, where this Court
held that it was error to refuse defendants’ motion to 
make the charge more definite and certain in a warrant 
charging breach of the peace. It was pointed out in that 
case that breach of the peace embraces a variety of con­
duct and defendants were entitled to be given such in­
formation as would enable them to understand the nature 
of the offense. This is not true in instant case where the 
charges were definite, clear and unambiguous; further, no 
motion was made to require the prosecution to make the 
charge more definite and certain. There is no merit in this 
contention.

Defendants next contend that their arrest and convic­
tion was in furtherance of a custom of racial segregation 
in violation of the Fourteenth Amendment to the Consti­
tution of the United States.

Defendants entered the place of business of the S. H. 
Kress Store and seated themselves at the lunch counter, 
they contend, for the purpose of being served, although 
four of them had no money and there is no testimony 
that such service was to he paid for by others.

The testimony reveals that the lunch counter was closed 
because it was the custom of the S. H. Kress Store in

O pin ion , S o u th  C a ro lin a  S u p re m e  C o u rt



8a

Greenville, South Carolina, to serve whites only and after 
all persons had left or been removed the lunch counter 
was reopened for business. The statute with no reference 
to segregation of the races applies to “Any person: * * * 
Who fails and refuses without cause or good excuse * * * 
to leave immediately upon being ordered or requested to 
do so by the person in possession or his agent or repre­
sentative, * * * ” The act makes no reference to race or 
color and is clearly for the purpose of protecting the rights 
of the owners or those in control of private property. Ir­
respective of the reason for closing the counter, the evi­
dence is conclusive that defendants were arrested because 
they chose to remain upon the premises after being re­
quested to leave by the manager.

Defendants do not attack the statute as being uncon­
stitutional but contend that their constitutional rights were 
abridged in its application in that they were invitees and 
had been refused service because of their race. The cases 
cited do not support this contention while there are a 
number of cases holding to the contrary. See Hall v. Com­
monwealth, 188 Ya. 72, 49 S. E. (2d) 369, 335 U. S. 875, 
69 S. Ct. 240, 93 L. Ed. 418; Henderson v. Trailway Bus 
Company, D. C. Va., 194 F. Supp. 423; State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295; State v. Avent, 253 N. C. 
580, 118 S. E. (2d) 47; Williams v. Howard Johnson 
Restaurant, 4 Cir., 268 F. (2d) 845; Slack v. Atlantic White 
Tower System, Inc., D. C. Md., 181 F. Supp. 124, 4 Cir., 
284 F. (2d) 746; Griffin v. Collins, D. C. Md., 187 F. Supp. 
149; Wilmington Parking Authority v. Burton, Del., 157
A. (2d) 894; Randolph v. Commonwealth, ----- Va. -------,
119 S. E. (2d) 817. The Fourteenth Amendment erects 
no shield against merely private conduct, however dis­
criminatory or wrongful, Shelley v. Ivraemer, 334 U. S. 1,

O pin ion , S o u th  C a ro lin a  S u p re m e  C o u rt



9a

68 S. Ct. 836, 92 L. Ed. 1161, 3 A. L. R. (2d) 441; and the 
operator of a privately owned business may accept some 
customers and reject others on purely personal grounds 
in the absence of a statute to the contrary, Alpaugh v. 
Wolverton, 184 Va. 943, 136 S. E. (2d) 906. In the absence 
of a statute forbidding discrimination based on race or 
color, the operator of a privately owned place of business 
has the right to select the clientele he will serve irrespec­
tive of color, State v. Avent, 253 N. C. 580, 118 S. E. (2d) 
47. Although the general public has an implied license to 
enter any retail store the proprietor or his agent is at 
liberty to revoke this license at any time and to eject 
such individual if he refuses to leave when requested to 
do so, Annotation 9 A. L. R. 379; Annotation 33 A. L. R. 
421; Brookshide-Pratt Mining Co. v. Booth, 211 Ala. 268, 
100 So. 240, 33 A. L. R. 417; and may lawfully forbid any 
and all persons, regardless of reason, race or religion, to 
enter or remain upon any part of his premises which are 
not devoted to public use, Henderson v. Trailway Bus 
Company, 194 F. Supp. 426.

The lunch counter was closed, the lights extinguished, 
and all persons requested to quit the premises. Defen­
dants refused and their constitutional rights were not 
violated when they were arrested for trespass.

Upon cross-examination of Capt. G. O. Bramlette of 
the Greenville City Police Department, it was brought out 
that the City of Greenville has an ordinance making it 
unlawful for any person owning, managing, or controlling 
any hotel, restaurant, cafe, etc., to furnish meals to white 
persons and colored person except under certain condi­
tions; and Defendants contend that they were prosecuted 
under this ordinance; however, the warrant does not so 
charge and there is nothing in the record to substantiate

O pin ion , S o u th  C a ro lin a  S u p re m e  C o u rt



10a

this contention. The ordinance was made a part of the 
record upon request of defendants’ counsel but defendants 
were not charged with having violated any of its provi­
sions. The question of the validity of this ordinance was 
not before the trial Court and therefore not before this 
Court on appeal.

Defendants further contention that the prosecution failed 
to establish the corpus delicti is disposed of by what has 
already been said.

W e are of opinion that the judgm ent and sentences ap­
pealed from  should be affirmed; and I t I s S o Ordered. 
A ffirmed.

Oxner, L egge, Moss and L ewis, J J . ,  concur.

O pin ion , S o u th  C a ro lin a  S u p re m e  C o u rt



11a

Certificate

THE STATE OF SOUTH CAROLINA 
I n  the S upreme Court 

Case No. 6032

City of Greenville,
Respondent,

—against—

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins,

Appellants.

I, Harold R. Boulware, hereby certify that I am a 
practicing attorney of this Court and am in no way con­
nected with the within case. I further certify that I am 
familiar with the record of this case and have read the 
opinion of this Court which was filed November 10, 1961, 
and in my opinion there is merit in the Petition for 
Rehearing.

/ s /  H arold R. B oulware

The Court neither overlooked nor misapprehended any 
of the facts set forth herein. Therefore the Petition is 
denied.

/ s /  C. A. T aylor, C.J.
/ s /  G. D ewey Oxner, A.J. 
/ s /  L ionel K. L egge, A.J. 
/ s /  J oseph R. Moss, A.J.
/ s /  J. W oodrow L ewis, A.J.

Columbia, South Carolina 
November 16, 1961.





i



■ < C 2 'c"  3 8



I n the

j5>uprrnt£ ©mart of tl}? lUtttpfo Staffs
October Term, 1962

No. 71

J ames R ichard P eterson, Y vonne J oan E ddy, IIelan 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right, and R ose Marie Collins,

Petitioners,
— v.—

City of Greenville.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF SOUTH CAROLINA

BRIEF FOR PETITIONERS

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, III 
Michael Meltsner 

10 Columbus Circle 
New York 19, N. Y.

Matthew J . P erry 
L incoln C. J enk in s , J r.

Columbia, South Carolina
W illie T. S mith

Greenville, South Carolina
Attorneys for Petitioners

Leroy Clark 
W illiam T. Coleman, J r.
W illiam R. Ming, J r.
Louis H. P ollak 

Of Counsel





INDEX
PAGE

Opinion Below .................................................................  1

Jurisdiction ......................................................................  1

Constitutional and Statutory Provisions Involved ..... 2

Questions Presented ........................................................ 3

Statement ..........................................................................  5

Summary of Argument ....................................................  9

Argum ent..........................................................................  13

I. South Carolina in Enforcing Racial Discrimina­
tion Has Denied to Petitioners the Equal Pro­
tection of the Laws Secured by the Fourteenth 
Amendment .........................................................  13
A. Petitioners Exclusion From the Lunch Coun­

ter, and Their Arrest and Conviction, Was 
Required by an Ordinance of the City of 
Greenville Which Compels Segregation in 
Eating Facilities in Violation of Petitioners’ 
Rights to the Equal Protection of the Laws
as Secured by the Fourteenth Amendment 13

B. Arrest, Conviction, and Sentence to Prison
for Trespass for Having Violated the S. II. 
Kress Co.’s Requirement of Racial Segrega­
tion at Its Public Lunch Counter Deny Peti­
tioners the Equal Protection of the Laws 
Secured by the Fourteenth Amendment .... 17



n

C. Certainly, at Least, the State May Not by
Its Police and Courts Enforce Such Segre­
gation When It Stems From a Statewide 
Custom of Segregation Which Has Been 
Generated by State Law .............................  22

D. A Fortiori, the State May Not Arrest and
Convict Petitioners for Having Violated a 
Segregation Policy Which Stems From a 
State Generated, Community Custom of 
Segregation in Premises in Which the State 
Is Deeply Involved Through Its Licensing 
and Regulatory Powers .............................  28

E. No Essential Property Right of S. H. Kress
and Co., Is Here at Issue; the Right to Make 
Racial Distinctions at a Single Counter in 
a Store Open to the Public Does Not Out­
weigh the High Purposes of the Fourteenth 
Amendment .................................................... 31

F. In Any Event the Convictions Below Must
Fall When, in Addition to the Foregoing, 
South Carolina Has Failed to Protect Negro 
Citizens in the Right to Equal Access to 
Public Accommodations .............................  38 II.

II. The Decision Below Conflicts With Decisions 
of This Court Securing the Right of Freedom 
of Expression Under the Fourteenth Amend­
ment to the Constitution of the United States 43

A. The Enforcement of the State and City 
Segregation Policy and the Interference of 
the Police Violated Petitioners’ Right to 
Freedom of Expression .............................  43

PAGE



I l l

B. The Convictions Deny Petitioners’ Right to 
Freedom of Expression in That They Rest 
on a Statute Which Fails to Require Proof 
That Petitioners Were Requested to Leave 
by a Person Who Had Established Author­
ity to Issue Such Request at the Time

PAGE

Given ...............................................................  47

Conclusion ....................................................................... 51

T able op Cases

Abrams v. United States, 250 U. S. 616, 630 ..............  43
Apex Hosiery Co. v. Leader, 310 U. S. 469 (1940) ....... 34

Bailey v. Patterson, 369 U. S. 31 .................................  17
Baker v. Carr, 369 U. S. 186 ........................................  38
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ....17,18
Barrows v. Jackson, 346 U. S. 249 ......................... 18, 34
Boh-Lo Excurson Co. v. Michigan, 333 U. S. 2 8 ..........  31
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th

Cir. 1960) ........................................................16,17,18,29
Breard v. Alexandria, 341 U. S. 622 .............................  21
Brown v. Board of Education, 347 U. S. 483 .......... 16,17
Buchanan v. Warley, 245 U. S. 6 0 ..........................16,18, 25
Burstyn v. Wilson, 343 U. S. 495 .................................  49
Burton v. Wilmington Parking Authority, 365 U. S.

715 ....................................................15,16,17,18, 30, 39, 42

In Re Carple’s Estate, 140 Misc. 459, 250 N. Y. S. 680
(Surr. Ct. 1931) ............................................................  33

Casey v. Plummer, 353 U. S. 924 .................................  18



PAGE

Catlette v. United States, 132 F. 2d 902 (4th Cir.
1943) ..............................................................................

Chaplinsky v. New Hampshire, 315 U. S. 568 ..........
Child Labor Tax Case, 259 U. S. 20 .............................
Civil Rights Cases, 190 U. S. 3 .............. 11,12,18, 22, 39,
Clark v. Flory, 141 F. Supp. 248 (E. D. S. C. 1956) 
Connally v. General Construction Co., 269 U. S. 385
Cooper v. Aaron, 358 U. S. 1 .....................................17,
Corporation Comms. v. Transportation Committee, 198 

N. C. 317, 151 S. E. 648 (1930) .................................

D’Arcangelo v. D’Arcangelo, 137 N. J. Eq. 63, 43 A. 2d
169 (Ch. 1945) ...............................................................

Davidson v. Wilmington Trust Co., 23 Del. Ch. 1, 2
A. 2d 285 (Ch. 1938) ....................................................

Davis v. Schnell, 81 F. Supp. 872 (S. D. Ala. 1949),
aff’d 336 U. S. 933 ....................................................

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert. den. sub nom. Casey v. Plummer, 353 U. S. 924 

District of Columbia v. John R. Thompson Co., 346
U. S. 100 .......................................................................

Dwyer v. Kuchler, 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 
1934) ..............................................................................

Engel v. Vitale, 370 U. S. 421 .........................................
Evers v. Dwyer, 358 U. S. 202 .....................................

Fay v. New York, 332 U. S. 261 .................................
In Re Forte’s Will, 149 Mise. 327, 267 N. Y. S. 603

(Surr. Ct. 1933) ...........................................................
Freeman v. Retail Clerks Union, Washington Superior 

Court, 45 Lab. Rel. Ref. Man. 2334 (1959) ..............

39
49
22
41
24
49
46

33

33

33

15

18

31

33

27
17

20

33

46



Garner v. Louisiana, 368 U. S. 157 ....23, 28, 29, 43, 44, 48, 50
Gayle v. Browder, 352 U. S. 903 ............................. 16,17
Gilbert v. Minnesota, 254 U. S. 325 .............................  22
Guinn v. U. S., 238 U. S. 347 ......................................... 15

In Re Haight’s Will, 51 App. Div. 310, 64 N. Y. S.
1029 (2d Dept. 1900) .................................................... 33

Harmon v. Tyler, 273 U. S. 668 .....................................  18
Hawke v. Euyart, 30 Neb. 149, 46 N. W. 422 (1890) .... 33
Henneford v. Silas Mason Co., 300 U. S. 577 ..........  32
Henry v. Greenville Airport Comm’n, 284 F. 2d 631

(4th Cir. 1960) ...........................................................  17
Hirabayashi v. United States, 320 U. S. 81 ..................  19
Holmes v. Atlanta, 350 U. S. 879 ............................. 16,17
Holmes v. Connecticut Trust & Safe Deposit Co., 92

Conn. 507, 103 Atl. 640 (1918) .................................  33
Hudson County Water Co. v. McCarter, 209 U. S. 345 38

Klor’s Inc. v. Broadway-Hale Stores, 359 U. S. 207
(1959) ............................................................................  34

Ivovacs v. Cooper, 336 U. S. 77 .....................................  21

Lambert v. California, 335 U. S. 225 .............................  49
Lane v. Cotton, 1 Ld. Raym. 646, 1 Salk. 18, 12 Mod.

472 ..................................................................................  36
Lane v. Wilson, 307 U. S. 268 ......................................... 15
Lanzetta v. New Jersey, 306 U. S. 451 ...........................  49
Levitt & Sons, Inc. v. Division Against Discrimination,

31 N. J. 514, 158 A. 2d 177 (1960) .............................  35
Louisiana State University and A. & M. College v. 

Ludley, 252 F. 2d 372 (5th Cir. 1958), cert, denied
358 U. S. 819 ................................................................. 15

Lynch v. United States, 189 F. 2d 476 (5th Cir. 1951) 39

V

PAGE



Maddox v. Maddox, Admr., 52 Va. 804 (1954)
Marsh v. Alabama, 326 U. S. 501 ......................... 32, 37,
Martin v. Struthers, 319 U. S. 141 ............................. 21,
Massachusetts Comm’n Against Discrimination v.

Colangelo, 30 U. S. L. W. 2608 (Mass. 1962) ..........
Mayor, etc. of Baltimore v. Dawson, 350 U. S. 877 ....16,
Miller v. Schoene, 276 U. S. 272 (1928) ......................
Monroe v. Pape, 365 U. S. 167 .....................................
Morrissette v. U. S., 342 U. S. 246, 250 .........................
Muir v. Louisville Park Theatrical Assn., 347 U. S. 

971, vacating and remanding, 202 F. 2d 275 ..........

NAACP v. Alabama, 357 U. S. 449 ......................18, 27,
Nashville C. & St. L. Ry. v. Browning, 310 U. S. 362.... 
N.L.R.B. v. American Pearl Button Co., 149 F. 2d 258

(8th Cir. 1945) ...........................................................
NLRB v. Babcock & Wilcox Co., 351 U. S. 105 (1955) 
New Orleans City Park Improvement Assn. v. Detiege,

358 U. S. 54 ...................................................................
Nixon v. Condon, 286 U. S. 7 3 .........................................

People v. Barisi, 193 Misc. 934, 86 N. Y. S. 2d 277,
279 ..................................................................................

Poe v. Ullman, 367 U. S. 497 ........................................
Pollock v. Williams, 322 U. S. 4 .....................................
Porter v. Barrett, 233 Mich. 373, 206 N. W. 532 (1925) 
Public Utilities Commission v. Poliak, 343 LL S. 451 ....22,

Queenside Hills Realty Co. v. Saxl, 328 U. S. 80 (1946)

In Re Ranney’s Estate, 161 Misc. 626, 292 N. Y. S. 476 
(Surr. Ct. 1936) ...........................................................

33
45
44

35
17
36
18
50

18

44
23

45
36

17
30

46
23
27
34
30

36

33



V l l

PAGE

Saia v. New York, 334 U. S. 558 .................................  49
St. Louis Poster Advertising Co. v. St. Louis, 249

U. S. 269 (1919) ........................................................ 36
San Diego Bldg. Trades Council v. Garmon, 349 U. S.

236 ............................................................................ 45
Schenck v. U. S., 249 U. S. 52............................................  46
Schmidinger v. Chicago, 226 U. S. 578 .......................... 36
Screws v. United States, 325 U. S. 91 .........................  18
Sellers v. Johnson, 163 F. 2d 877 (8th Cir. 1957), cert.

denied 332 U. S. 851 ..................................................... 46
Sender v. Oregon State Board of Dental Examiners,

294 U. S. 608 (1935) ...................................................  36
Shelley v. Kraemer, 334 U. S. 1 ....17,18,19, 20, 31, 34, 37, 38
Smith v. California, 361 U. S. 147 .................................  47
State Athletic Comm’n v. Dorsey, 359 U. S. 533 ..........  17
State of Maryland v. Williams, Baltimore City Court,

44 Lab. Eel. Ref. Man. 2357, 2361 (1959) ..................  46
Steele v. Louisville and Nashville R.R. Co., 323 U. S.

192 ............................................................................  30
Stromberg v. California, 283 U. S. 359 ...................... 43

Taylor v. Louisiana, 370 U. S. 154 ......................... 17,18
Terminiello v. Chicago, 337 U. S. 1 .............................  46
Thomas Cusack Co. v. Chicago, 242 U. S. 526 (1917) 36
Thompson v. City of Louisville, 362 U. S. 199 ..........  50
Thornhill v. Alabama, 310 U. S. 88 ......................... 43, 45
Turner v. Memphis, 369 U. S. 350 ............................. 17,18

United States v. Addyston Pipe & Steel Co., 85 Fed.
271 (6th Cir. 1898), aff’d 175 U. S. 211 (1899) ....... 34

United States v. Beaty, 288 F. 2d 653 (6th Cir. 1961) 37 
United States v. Colgate, 250 U. S. 300 (1919) ....... 34



V lll

United States v. Hall, 26 Fed. Cas. 79 ...................... 39
U. S. v. Parke, Davis & Co., 362 U. S. 29 (1960) ..........  34
United Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 

(D. C. Cir. 1956) ............................................. -......... 45

Watclitower Bible and Tract Soc. v. Metropolitan Life
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948) ....... 21

West Virginia State Board of Education v. Barnette,
319 U. S. 624, 633-634 ................................................  43

Western Turf Assn. v. Greenberg, 204 U. S. 359 ..........  31
Wieman v. Updegraff, 344 U. S. 183 .............................  47
Williams v. Hot Shoppes, Inc., 293 F. 2d 835 (D. C.

Cir. 1961) ......................................................................  16
Williams v. Howard Johnson’s Restaurant, 268 F. 2d

845 (4th Cir. 1959) .......................................................  16
Winterland v. Winterland, 389 111. 384, 59 N. E. 2d 661

(1945) ............................................................................  33
Winters v. New York, 333 U. S. 507 .......... :..............47,49
Wolf v. Colorado, 338 U. S. 25 ..................................... 22

F ederal S tatutes

42 U. S. C. 1981 ...............................................................  19
42 U. S. C. 1982 ............................................................  19
Robinson-Patman Act, 15 U. S. C. §13 et seq................  34

Sherman Anti-Trust Act, 15 U. S. C. §1 et seq............. 34

S tate S tatutes

Colo. Rev. Stat. Ann. sections 25—1—1 (1953) ..........  35
Conn. Gen. Stat. Rev. §53-35 ..................................... 35
Conn. Stat. Rev. §53-35 (Supp. 1960) ............................ 35

PAGE



IX

D. C. Code Ann. sections 47—2901-04 (Supp. 1960) .... 35

Indiana Ann. Stat. sections 10—901-02 (Supp. 1960) 35
Iowa Code Ann. section 735.1 (1950) .............................  35

Kansas Gen. Stat. Ann. section 21-2424 (1949) ........... 35

Mass. G. L. c. 151B, §4 (Supp. 1961) .........................  35
Mich. Stat. Ann. §28.343 ...........1..................................... 35
Miller Tydings Act Amendment of §1 of the Sherman

Act, 15 U. S. C. §1 .......................................................  34
Minn. Stat. Ann. section 327.09 (1947) .........................  35
Minn. Stat. Ann. §§363.01-.13, as amended by L. 1961,

c. 428 to become effective 12/31/62 .........................  35
Montana Rev. Codes Ann. section 64-211 (Supp. 1961) 35

Neb. Rev. Stat. sections 20—-101, 102 (1943) ..............  35
N. H. Rev. Stat. Ann. §§354:1 (Supp. 1961) ..................  35
N. H. Rev. Stat. Ann. c. 354:1 (Supp. 1961) ..............  35
N. J. Stat. Ann. sections 10:1-2 to 10:1-7 (1960) ..........  35
N. M. Stat. Ann. sections 49—8—1-6 (Supp. 1961) ....... 35
N. Y. Civil Rights Law, section 40 .............................  35
N. Y. Executive Law, §§290(9), 296(2) (Supp. 1962) 35

Ohio Rev. Code section 4112.02(6) (Supp. 1961) ....... 35
Ore. Rev. Stat. sections 30.670-.680, as amended by 

L. 1961 c. 247 ................................ .J..............................  35
Pa. Stat. Ann. Tit. 18, section 4654, as amended by

Act No. 19 (1961) ........................................................ 35
Pa. Stat. Ann. Titl. 43, §953 (Supp. 1961) ..................  35

R. I. Gen. Laws §§11-24-1 to 11-24-6 (1956) ..................  35

S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48)
1695 repealing S. C. Const, art. 11 §5 (1895) ..............  23

S. C. A. & J. R., 1956, No. 917 .............................. ......  25
S. C. Code §5-19 (1952) .................................................... 24

PAGE



X

S. C. Code §§12-1 to 12-1083 (1952) .............................  28
S. C. Code §16-553 (1952) ............................................  24
S. C. Code §20-7 to -8 (1952) ........................................  24
South Carolina Code of Laws §21-2 (1957 Supp.) .... 23
S. C. Code §§25-51 et seq. (1952) .................................  29
S. C. Code §§25-51, 52 ..................................................... 29
S. C. Code §35-125 (1952) .............................................  29
S. C. Code §35-126 (1952) .............................................  29
S. C. Code §35-130 (1952) .............................................  29
S. C. Code §35-133 (1952) .............................................  29
S. C. Code §35-135 (1952) ........................................  29
S. C. Code §§51-1, 2.1-2.4 (1957 Supp.) ....................  24
S. C. Code §51-181-84 (1952) .......................................  25
S. C. Code §§52-53, 54 (1952) ....................................... 29
S. C. Code §55-1 (1952) ...............................................  24
S. C. Code §58-551 (1952) ............................................. 24
S. C. Code §58-714, 715, 718-720 (1952) .........................  24
S. C. Code §58-1331 (1952) ......................... ............... 24
S. C. Code §58-1332 (1952) ........................................... 24
S. C. Code §58-1334 (1952) ........................................... 24
S. C. Code §58-1337, 1338 (1952) ...........................  24
S. C. Code §65-1381-1391 (1952) ................................... 29
S. C. Code §65-1382 (1952) ........................................... 29
S. C. Code §65-1401 (1952) ........................................... 29
S. C. Code §§65-1421-1433 ............................................  29
S. C. Code §65-1449 (1952) ............................... ............. 29
S. C. Const, art. 3 §33 .................................................... 24
S. C. Const, art. 11 §5 ..................................................  24
S. C. State Advisary Committee to the United States 

Commission on Civil Rights, “The 50 States Report,”
p. 566 (1961) ...............................................................  25

South Carolina Code of Laws, 1952, §16-388 ..................  2

PAGE



XI

Vermont Stat. Ann. Tit. 13, sections 1451-52 (1958) .... 35

Wash. Rev. Code §§49.60.040, 49.60.215 (1962) ..........  35
Wis. Stat. Ann. section 942.04 (1958) .........................  35
Wyoming Stat. §§6-83.1, 6-83.2 (Supp. 1961) ..............  35

City Ordinance

Code of Greenville, 1953, section 31-8 ......................... 2,13

E nglish S tatutes

Statute of Labourers, 25 Ed. I ll, Stat. I (1350) ..........  35
(1464), 4 Ed. IV, c. 7 .......................................................  36
(1433), 11 H. VI, c. 12 .................................................... 36
(1357), 31 Ed. I ll, c. 10 ................................................  36
(1360), 35 Ed. I l l .............................................................  36

Other A uthorities

Abernathy, Expansion of the State Action Concept 
Under the Fourteenth Amendment, 43 Cornell L.
Q. 375................................................................................ 42

Adler, Business Jurisprudence, 28 Harv. L. Rev. 135
(1914) ............................................................................  35

A. L. I., Restatement of the Law of Property, Div. 4, 
Social Restrictions Imposed Upon The Creation Of
Property Interests (1944), p. 2121.................................  33

A. L. I., Restatement of Torts, §867 (1939)..................  22

Beale, The Law of Innkeepers and Hotels (1906)....... 36
4 Blackstone’s Commentaries, Ch. 13, Sec. 5(6) Wen­

dell’s Ed. 1850...............................................................  22
Blodgett, Comparative Economic Systems 24 (1944) .... 32 
Browder, Illegal Conditions and Limitations: Miscel­

laneous Provisions, 1 Okla. L. Rev. 237 (1948).......... 33

PAGE



XXI

Cong. Globe, 41st Cong. 2d Sess. p. 3611........................  41
Cong. Globe, 42nd Congress, 1st Sess., p. 483..................  40
Appendix to the Cong. Globe, 42d Congress, 1st Sess.,

p .  85................................................................................  41
Cong. Rec., p. 412, 43d Cong., 1st Sess. (Vol. 2, part 1) 

(1874) ............................................................................  40
Gray, Restraints on the Alienation of Property, 2d ed.

1895, §259........................................................................  33
Gray, The Rule Against Perpetuities, §201, 4th ed.,

1942 ................................................................................  34
Hale, Force and the State: A Comparison of “Politi­

cal” and “Economic” Compulsion, 35 Colum. L. Rev.
149 (1935) ....................................................................... 42

Konvitz & Leskes, A Century of Civil Rights, 150 
(1961) ............................................................................  42

Leach, Perpetuities in a Nutshell, 51 Harv. L. Rev.
638 (1938)......................................................................  34

Mund, “The Right to Buy—and Its Denial to Sixiall 
Business,” Senate Document #32, 85th Cong. 1st 
Sess., Select Committee on Small Business (1957) 35

Poliak, Racial Discrimination and Judicial Integrity:
A Reply to Professor Wechsler, 108 U. Pa. L. Rev.

PAGE

1 (1959) ..........................................................................  42
6 Powell, Real Property H858......................................... 33



I n the

CUnurt a f tlu> Itntti'ii States
October Term, 1962 

No. 71

J ames R ichard P eterson, Y vonne J oan E ddy, H elan 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right, and R ose Marie Collins,

Petitioners,
— v.—

City of Greenville.

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF SOUTH CAROLINA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of South Carolina 
(R, 55) is reported at 122 S. E. 2d 826 (1961). The opinion 
of the Greenville County Court is unreported but is set 
forth in the printed record (R. 50).

Jurisdiction

The judgment of the Supreme Court of South Carolina 
was entered November 10, 1961 and petition for rehearing 
denied on November 30, 1961. The petition for certiorari



2

was filed on February 26, 1962 and granted by this court on 
June 25,1962.

The jurisdiction of this Court is invoked pursuant to 
Title 28, United States Code, Section 1257 (3), petitioners 
having asserted below, and asserting here, deprivation of 
rights, privileges and immunities secured by the Consti­
tution of the United States.

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves Section 16-388, Code of Laws 
of South Carolina, 1952, as amended 1960:

Any person:

(1) Who without legal cause or good excuse enters into 
the dwelling house, place of business or on the premises of 
another person, after having been warned within six months 
preceding, not to do so or

(2) who, having entered into the dwelling house, place 
of business or on the premises of another person without 
having been warned within six months not to do so, and 
fails and refuses, without good cause or excuse, to leave 
immediately upon being ordered or requested to do so by the 
person in possession, or his agent or representative,

Shall, on conviction, be fined not more than one hundred 
dollars, or be imprisoned for not more than thirty days.

3. This case involves Section 31-8, Code of Greenville, 
1953, as amended by 1958 Cumulative Supplement.

It shall be unlawful for any person owning, managing 
or controlling any hotel, restaurant, cafe, eating house,



3

boarding bouse or similar establishment to furnish meals 
to white persons and colored persons in the same room, 
at the same table, or at the same counter; provided, how­
ever, that meals may be served to white persons and colored 
persons in the same room where separate facilities are 
furnished. Separate facilities shall be interpreted to mean:

a) Separate eating utensils and separate dishes for 
the serving of food, all of which shall be distinctly 
marked by some appropriate color scheme or other­
wise ;

b) Separate tables, counters or booths;

c) A distance of at least thirty-five feet shall be main­
tained between the area where white and colored per­
sons are served;

d) The area referred to in subsection (c) above shall 
not be vacant but shall be occupied by the usual display 
counters and merchandise found in a business concern 
of a similar nature;
e) A separate facility shall be maintained and used 
for the cleaning of eating utensils and dishes furnished 
the two races.

Questions Presented

Petitioners have been arrested, convicted, and sentenced 
for refusal to obey an order to leave the lunch counter 
in a store open to the public, including Negroes. This 
order was given to enforce a City Ordinance and a com­
munity custom generated by a massive body of state 
segregation law. The premises are extensively licensed 
and regulated by the State. South Carolina has failed 
to accord Negroes the right of equal access to public ac­
commodations.



4

I.
A. Whether a State may arrest and convict petitioners 

of trespass where a City Ordinance required the policy of 
excluding Negroes to be enforced?

B. May South Carolina, compatibly with the Fourteenth 
Amendment, make petitioners the target of a prosecution 
under its trespass laws when the rationale of the prosecu­
tion is to enforce a claimed legal right of racial discrimina­
tion of the S. H. Kress Corporation?

C. Are not these criminal trespass prosecutions, in any 
event, incompatible with the Fourteenth Amendment be­
cause they constitute purposeful state enforcement of a 
custom of racial discrimination—a custom which is itself 
the carefully nurtured fruit of decades of segregation re­
quired by state law?

D. Is not the degree of supervision and control which 
the State of South Carolina exercises over the S. H. Kress 
lunch counter business so extensive a form of state involve­
ment that, given the circumstances of A, B and C, supra, 
South Carolina has failed in its obligation to afford equal 
protection of the laws?

E. In addition to considerations set forth above, is not 
the property right which S. H. Kress and Co. has asserted 
—the right to discriminate racially in a single portion of 
a store open to the general public—so inconsequential to 
the main core of its proprietary interest, that the State 
may not compatibly with the Fourteenth Amendment, en­
force that right by its criminal laws?

F. In view of the fact that South Carolina denies pro­
tection to Negroes against racial discrimination in public 
accommodations, do not the circumstances set forth above 
establish a denial of equal protection of the laws ?



5

n.
A. Is not South Carolina denying petitioners freedom 

of speech secured by the Fourteenth Amendment by using 
its criminal trespass laws as a device to stop petitioners 
from urging S. H. Kress and Company to abandon its dis­
crimination practices ?

B. Is not freedom of speech impaired by failure to con­
strue the statute under which conviction was obtained to 
require notice that the request to leave the premises was 
given by one who had established authority to issue such 
request at the time given?

Statement

Petitioners, ten Negro students, were arrested for par­
ticipating in a sit-in demonstration at the lunch counter of 
the S. H. Kress and Company department store on August 
9, 1960 (R. 8), in Greenville, South Carolina, a city which 
by ordinance requires segregation in eating facilities (R. 
11), were convicted of trespass in violation of Section 
16-388, Code of Laws of South Carolina, 1952, as amended 
1960, and sentenced to pay a fine of one hundred dollars 
($100.00) or serve thirty (30) days in jail (R. 47).

At about 11:00 a.m. on August 9, 1960, petitioners en­
tered the Kress department store and seated themselves 
at the lunch counter (R. 36). The store services Negroes 
in all departments except the lunch counter which is re­
served for whites (R. 14, 22). Petitioners requested ser­
vice and were told, “I am sorry, we do not serve Negroes.” 
White persons were seated at the counter and were being 
served at the time. The manager of the store, Mr. West, 
upon noting that petitioners had seated themselves at the 
white lunch counter, approached them and requested,



6

“everybody to leave, that the lunch counter was closed” 
(R. 19). He said his purpose in closing the counter at a 
time when it ordinarily would be operated was to prevent 
Negroes from using a lunch counter reserved for whites. 
Mr. West was aware that the petitioners were participating 
in a demonstration to secure service at the lunch counter 
on an equal basis, as previous sit-in demonstrations had 
been staged there by some of the petitioners. Further, peti­
tioner Doris Wright had been in communication with him 
to request service for Negroes, and during these communica­
tions she was told of the near success of the demonstrations 
and received a promise that no charges would be pressed 
if the protests against segregated luncheon facilities were 
continued (R. 38-39). Mr. West, in fact, did not request the 
arrest of petitioners, nor did he sign the complaint against 
them (R. 5,16-17).

Also, at about 11:00 a.m. Captain Bramlette of the Green­
ville Police Department received a call that some colored 
boys and girls were at the lunch counter. He knew that the 
City of Greenville had an ordinance prohibiting colored and 
white persons from being served at the same eating facili­
ties (R. 10-11). He proceeded to the store, entered with 
several policemen, and found two agents of the South Caro­
lina Law Enforcement Department already present at the 
lunch counter (R. 7). He noticed the ten petitioners seated 
at the counter which could accommodate almost fifty-nine 
persons (R. 7, 25). Although Mr. West made no request 
of the officers to remove the petitioners, Captain Bramlette 
arrested them a few minutes after the announcement was 
made that the counter was closed (R. 8).1 The petitioners, 
according to the testimony of the arresting officer and the

1 Four other Negro demonstrators were arrested, but their cases 
were disposed of by the juvenile authorities (R. 7).



7

manager, were clean, neatly dressed, orderly, and used no 
profanity (R. 12-13, 24).

A witness for the defense, Mr. Raymond Carter, who 
was standing nearby during the demonstration, testified that 
at the time Mr. West announced the closing of the counter, 
the whites who were sitting remained seated but were not 
arrested (R. 30). (This testimony was disputed by Mr. 
West, who claimed that the whites who were sitting at the 
counter removed themselves upon his announcement (R. 
19).) Mr. Raymond Carter gave further testimony, sup­
ported by Mr. West, that after petitioners were arrested 
and escorted from the premises, counter service to whites 
promptly was resumed (R. 23, 31).

Mr. West testified that he instructed one of the store’s 
employees to call the police; but when petitioners’ counsel 
attempted to ascertain whether there was any pre-arrange­
ment or agreement between the store and the police to 
secure the arrest of the demonstrators, the court denied 
permission to proceed (R. 22-23). Mr. West stated that he 
closed the lunch counter because of a Greenville city ordi­
nance requiring racial segregation in eating facilities and 
local custom:

Q. Mr. West, why did you order your lunch counter 
closed? A. I t’s contrary to local custom and it’s also 
the ordinance that has been discussed (R. 23).

On cross examination, Captain Bramlette, the arresting 
officer, evidenced confusion as to whether defendants were 
arrested because they violated Greenville’s ordinance re­
quiring segregation in eating facilities or the State of South 
Carolina’s trespass statute:

Q. Did the manager of Kress’, did he ask you to place 
these defendants under arrest, Captain Bramlette? A. 
He did not.



8

Q. He did not? A. No.
Q. Then why did you place them under arrest? A. 

Because we have an ordinance against it.
Q. An ordinance ? A. That’s right.
Q. But you just now testified that you did not have 

the ordinance in mind when you went over there? A. 
State law in mind when I went up there.

Q. And that isn’t the Ordinance of the City of 
Greenville, is it? A. This supersedes the order for 
the City of Greenville.

Q. In other words, you believe you referred to an 
ordinance, but I believe you had the State statute in 
mind? A. You asked me have I, did I have knowledge 
of the City Ordinance in mind when I went up there 
and I answered I did not have it particularly in my 
mind, I said I had the State Ordinance in my mind.

Q. I see and so far this City Ordinance which re­
quires segregation of the races in restaurants, you at 
no time had it in mind, as you went about answering 
the call to Kress’ and placing these people under ar­
rest? A. In my opinion the state law was passed 
recently supersedes our City Ordinance (R. 16-17).

This “State law” is the trespass statute petitioners were 
charged with violating. Previously, Captain Bramlette had 
testified that he thought the State’s trespass statute ex­
pressly mentioned “sit-ins” (R. 15).

Kress and Company is a large nationwide chain which 
operates junior department stores (R. 20). The Greenville 
branch has fifteen to twenty departments, sells over 10,000 
items, and is open to the general public (R. 21). Negroes 
and whites are invited to purchase and are served alike 
with the exception that Negroes are not served at the lunch 
counter which is reserved for whites (R. 14, 22). Kress’



9

national policy is “to follow local customs” with regard 
to serving Negroes and whites at its lunch counters (R. 21).

Petitioners were tried and convicted in the Recorder’s 
Court of Greenville before the City Recorder, sitting with­
out a jury, and sentenced to pay a fine of one hundred 
dollars ($100.00) or serve thirty (30) days in the city jail 
(R. 2).

Petitioners appealed the judgment of Recorder’s Court 
to the Greenville County Court, which dismissed the appeal 
on March 17,1961 (R.2).

The Supreme Court of South Carolina entered its judg­
ment, affirming the judgment and sentences below on No­
vember 10, 1961, and denied rehearing on November 30, 
1961 (R. 59, 62).

Sum m ary o f Argument

I.
Despite a City Ordinance requiring segregation in eating 

facilities which compelled the store manager to refuse ser­
vice to Negro petitioners, the Supreme Court of South 
Carolina held it was only neutrally enforcing the property 
right of the owner of a department store. But segregation 
enforced by legislation violates the rights of petitioners 
to the equal protection of the laws. Secondly, while in some 
circumstances there may be a personal privilege to make 
racial distinctions it cannot apply when segregation is re­
quired by law and, moreover, its limit is reached when the 
person exercising it turns to the State for assistance. 
Judicial and police action are no less forbidden State ac­
tion when invoked to enforce discrimination initiated by 
an individual. Any suggestion that private rights, in the 
sense that they invoke considerations of privacy, are in-



1 0

volved is farfetched. Kress’s has been open to the public 
in general. The management did not assert the corpora­
tion’s own preference for a segregation policy, but rather, 
as stated explicitly in the record, the policy of a City Ordi­
nance and the custom of the community. While considera­
tions of privacy are meaningful in determining the reach 
of some constitutional liberties, the right in this case, to 
freedom from State imposed racial discrimination is not 
in competition with any interest the State might have in 
protecting privacy.

At the very least, however, the State may not enforce 
racial discrimination which expresses deep-rooted public 
policy. The record here conclusively shows that this is 
what happened in this case. Such customs are a form of 
State action. But beyond this, the segregation customs in 
this case were generated by a host of State segregation 
laws including a City Ordinance compelling segregation in 
eating facilities. Scholarship establishes the crucial role 
which government, politics, and law have played in creat­
ing segregation customs.

But the State-enforced, State-created community custom 
of segregation in this case is even more vicious because it 
has taken place in an establishment in which the State has 
been deeply involved by requiring extensive licensing and 
regulation. State involvement in such an enterprise pre­
cludes State enforcement of segregation therein by means 
of arrests and prosecutions for trespass.

The holding below that the State merely was in a neutral 
fashion enforcing a property right does not decide this case. 
States can and have constitutionally forbidden property 
owners to discriminate on the basis of race in public ac­
commodations. South Carolina has not inhibited itself from 
requiring racial segregation on private property. The



1 1

more an owner for his advantage opens his property for 
use by the public in general, the more do his rights become 
circumscribed by the constitutional and statutory rights of 
those who use it.

Property is a bundle of rights and privileges granted by 
the State. That portion of the rights which constitute 
Kress’s property, which Kress asserts here, and which the 
State has enforced is to control the conduct and association 
of others. This type of property right historically has 
never been unrestrained throughout the whole range of 
efforts to assert it. Restraints on that power are but a 
manifestation of the fact that law regularly limits or shapes 
property rights where they may have harmful public con­
sequences. Other characteristics of the asserted right to 
racially discriminate in this case are that no claim of 
privacy has been intruded upon; that petitioners sought 
only to use the premises for their intended function; that 
segregation was required only in a single part of an es­
tablishment open to the general public, to which petitioners 
were admitted, and in which they were invited to trade 
freely except at the lunch counter in question. This sliver 
in the entire complex of powers and privileges which con­
stitutes Kress’s property is hardly entitled to legal protec­
tion when it collides with the Equal Protection Clause of 
the Fourteenth Amendment, whose purpose was an end 
of discrimination against the Negro.

Moreover, the Civil Rights Cases assumed the States 
provided “a right to enjoy equal accommodations and privi­
leges . . . one of the essential rights of the citizen which 
no state can interfere with.” The failure to provide such 
rights can deny the equal protection of the laws. One mem­
ber of the Court which decided the Civil Rights Cases pre­
viously had written that denial included omission to protect



1 2

as well as the omission to pass laws for protection. Legis­
lators concerned with the scope of the Fourteenth Amend­
ment expressed similar views. The Civil Rights Cases were 
decided on the assumption that the States in question pro­
tected those rights. It is doubtful that the result would 
have been the same if then, as today in South Carolina, the 
States actively interfered with the right of equal access to 
public facilities. No State may abdicate its responsibilities 
by ignoring them; and where a State by its inaction has 
made itself a party to the refusal of service and has placed 
its power and prestige behind discrimination, convictions 
such as those obtained in this case must fall.

II.
The convictions violate petitioners’ rights to freedom of 

speech and expression as secured by the due process clause 
of the Fourteenth Amendment against state infringement. 
Petitioners’ action here, a sit-in, is a well recognized form 
of protest and was entirely appropriate to the circum­
stances, including the use to which the private property 
involved had been dedicated by the owner. The property 
owner implicitly consented to the expression and did not 
seek the intervention of the criminal process. There were 
no speeches, picket signs, handbills, or other forms of ex­
pression which might possibly be inappropriate to the time 
and place. There was merely a request to be permitted to 
purchase goods in the place provided for such purchases. 
The expression was not in such circumstances or of such a 
nature as to create a clear and present danger of any sub­
stantive evil the State had a right to prevent. The arrests 
improperly stifled a protest against racial discrimination.

The statute applied to convict petitioners was unreason­
ably vague and thereby offends the due process clause of



13

the Fourteenth Amendment. The statute was construed by 
the Court below to uphold convictions obtained without 
proof that petitioners were requested to leave by a person 
who had established authority to issue such request at the 
time given. If in the circumstances of this case freedom 
of speech and expression are to be curtailed, petitioners 
have a right to expect reasonable notice of such a rule in 
the statute under which the convictions were obtained.

A R G U M E N T

I.

South Carolina in Enforcing Racial Discrim ination  
Has Denied to Petitioners the Equal Protection of the 
Laws Secured by the Fourteenth Amendment.

A. Petitioners’ Exclusion From the Lunch Counter, and 
Their Arrest and Conviction, Was Required by an 
Ordinance of the City of Greenville Which Compels 
Segregation in Eating Facilities in Violation of Peti­
tioners’ Rights to the Equal Protection of the Laws 
as Secured by the Fourteenth Amendment.

Although petitioners were formally charged and con­
victed of trespass, in actuality the “trespass” consisted 
solely of violating the City of Greenville’s affirmative re­
quirement of racial segregation. This legal requirement of 
segregation is expressed in Section 31-8, Code of Green­
ville, 1953, as amended 1958 Cumulative Supplement, see 
supra pp. 2-3, making it unlawful “to furnish meals to white 
persons and colored persons in the same room, or at the 
same table, or at the same counter” unless “separate eat­
ing utensils . . . dishes . . . tables, counters or booths” are 
provided and “a distance of at least thirty-five feet shall 
be maintained between the area where white and colored 
persons are served” (R. 49).



14

In short, the City of Greenville determined that peti­
tioners’ conduct would be unlawful even if the department 
store had consented to serve them at the lunch counter.

G. W. West, the Manager of the department store, testi­
fied explicitly that exclusion of Negroes from the lunch 
counter, and the closing of the counter when petitioners 
sought service, was necessary because of the City Ordinance 
requiring segregation in eating facilities (R. 23).2 Captain 
Bramlette, the arresting officer, was unclear as to the dis­
tinction between the City Ordinance requiring segregation 
and the State trespass statute (R. 15-17).

On this record, it is clear that Kress and Company would 
have been willing to cope with the controversy within the 
realm of social and economic give and take absent the 
Ordinance of the City of Greenville requiring segregation 
and the force of local customs supported by the City and 
the State of South Carolina, see infra pp. 22-28.

Prior to this demonstration, petitioners had been told 
by Store Manager West that he would not press charges 
if petitioners attempted to sit-in at the lunch counter (R. 
38). Although a store employee called the police (R. 22), 
petitioners were not permitted at the trial, to ascertain 
if this was due to prearrangement (R. 22, 23). West did 
not request the arrest of petitioners, nor did he sign the 
complaint against them (R. 5, 16, 17).

If, as the manager testified, S. H. Kress & Company 
maintained the policy of segregation because of the Ordi­
nance then there can be no other conclusion than that the 
City, by the Ordinance and by arrest and criminal convic-

2 Mr. West testified at R. 23:
“Q. Mr. West, why did you order your lunch counter 

closed? A. It’s contrary to local customs and it’s also the 
ordinance that has been discussed.”



15

tion, has “place [d] its authority behind discriminatory 
treatment based solely on color . . . ” Mr. Justice Frank­
furter, dissenting in Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 727. The City Ordinance is no ab­
stract exhortation but obligatory by its terms, to which 
were attached criminal sanctions, and it is uncontradicted 
that S. H. Kress & Company chose a policy of racial segre­
gation because of the Ordinance.

Petitioners’ arrest and conviction result, therefore, di­
rectly from the formally enacted segregation command of 
the City of Greenville, South Carolina, and not (so far as 
this record indicates) from any individual or corporate 
business decision or preference of the management of the 
store to exclude Negroes from the lunch counter. What­
ever the choice of the property owner may have been, here 
the City made the choice to exclude petitioners from the 
property through its segregation Ordinance. This City 
segregation policy was enforced by petitioners’ arrests, con­
victions and sentences in the South Carolina courts.

The Supreme Court of South Carolina dismisses refer­
ence to the City segregation Ordinance by stating “The 
Ordinance was made a part of the record upon request of 
defendants’ counsel but defendants were not charged with 
having violated any of its provisions” (R. 59). But, the 
Constitution forbids “sophisticated as well as simple- 
minded modes of discrimination.” Lane v. Wilson, 307 
U. S. 268, 275.3 In fact, the very existence of the Ordinance 
placed the “power” and “prestige” of the State behind

3 Racial segregation imposed under another name often has been 
condemned by this Court. G uinn  v. U. 8 ., 238 U. S. 347; L an e  v. 
W ilson , su p ra ;  D a v is  v. S ch n ell, 81 F. Supp. 872 (S. D. Ala. 1949), 
aff’d 336 U. S. 933; and see L ou isian a  S ta te  U n iv e rs ity  an d  A . &  M. 
C ollege v. D u d ley , 252 F. 2d (5th Cir. 1958), cert, denied 358 
U. S. 819.



16

racial discrimination. Burton v. Wilmington Parking Au­
thority, 365 U. S. 715, 725.

By enacting first, that persons who remain in a restaurant 
when the owner demands that they leave are “trespassers,” 
and then enacting that restaurants may not permit Negroes 
to remain in white restaurants, South Carolina has very 
clearly made it a crime (a trespass) for a Negro to re­
main in a white restaurant. The manager of Kress’s ad­
mits as much when he testified that the lunch counters were 
closed and petitioners asked to leave because of the Ordi­
nance (R. 23).

This case thus presents a plain conflict with numerous 
prior decisions of this Court invalidating state efforts to 
require or authorize racial segregation. Buchanan v. 
Warley, 245 U. S. 60; Brown v. Board of Education, 347 
U. S. 483; Gayle v. Browder, 352 U. S. 903, aff’g 142 F. 
Supp. 707, 712 (M. D. Ala. 1956); Holmes v. City of Atlanta, 
350 U. S. 879; Mayor and City Council of Baltimore v. 
Dawson, 350 U. S. 877; State Athletic Commission v. Dorsey, 
359 U. S. 533; cf. Burton v. Wilmington Parking Authority, 
365 U. S. 715, 727. Note the dissenting opinion of Judges 
Bazelon and Edgerton in Williams v. Hot Shoppes, Inc., 
293 F. 2d 835, 843 (D. C. Cir. 1961) (dealing primarily with 
the related issue of whether a proprietor excluding a Negro 
under an erroneous belief that this was required by state 
statute was liable for damages under the Civil Rights A ct; 
the majority applied the equitable abstention doctrine). 
Indeed, Williams v. Howard Johnson’s Restaurant, 268 
F. 2d 845, 847 (4th Cir. 1959) relied upon by the Supreme 
Court of South Carolina below, indicated that racial segre­
gation in a restaurant “in obedience to some positive pro­
vision of State law” would be a violation of the Fourteenth 
Amendment. See also Boman v. Birmingham Transit Com-



17

pany, 280 F. 2d 531 (5th Cir. 1960); Baldwin v. Morgan, 
287 F. 2d 750 (5th Cir. 1961).

B. Arrest, Conviction, and Sentence to Prison for Tres­
pass for Having Violated the S. H. Kress Co.’s Re­
quirement of Racial Segregation at Its Public Lunch 
Counter Deny Petitioners the Equal Protection of 
the Laws Secured by the Fourteenth Amendment.

In affirming the conviction below the Supreme Court of 
South Carolina held it was enforcing the right of a pro­
prietor to select the clientele he will serve on “purely per­
sonal grounds” (R. 58). While in some circumstances there 
may be a personal privilege of making racial distinctions, 
the limit of that privilege certainly is reached when the 
person exercising it turns to state instrumentalities for as­
sistance. There is no clear legal right of racial discrimina­
tion. Shelley v. Kraemer, 334 U. S. 1. Racial discrimina­
tion is constitutionally inadmissible when “the state in any 
of its manifestations has been found to have become in­
volved in it.” Burton v. Wilmington Parking Authority, 
365 U. S. 715, 722.4

4 Segregation has been forbidden in schools, B row n  v. B o a rd  of 
E du ca tion , 347 U. S. 483; C ooper v. A a ro n , 358 U. S. 1; parks and 
recreational facilities, M a yo r etc. o f B a ltim o re  v. D aw son , 350 
U. S. 877; H olm es v. A tla n ta , 350 U. S. 879; N eiv O rleans C ity  P a rk  
Im p ro vem en t A ss ’n  v. D etiege , 358 U. S. 54; and airports, T u rn er  
v. M em phis, 369 U. S. 350; H e n ry  v. G reen ville  A ir p o r t  C om m ’n, 
284 F. 2d 631 (4th Cir. 1960).

Segregation requirements have been prohibited in privately 
sponsored athletic contests, S ta te  A th le tic  C om m ’n  v. D o rsey , 359 
U. S. 533; and in connection with privately owned transportation 
facilities, G ayle  v. B ro w d er , 352 U. S. 903; E v e rs  v. D w y e r , 358 
U. S. 202; B a ile y  v. P a tte rso n , 369 U. S. 31; T a y lo r  v. L ouisiana, 
370 U. S. 154; B a ld w in  v. M organ , 287 F. 2d 750 (5th Cir. 1961); 
B om an  v. B irm in gh am  T ra n sit Co., 280 F. 2d 531 (5th Cir. 1960). 
A State law construed to authorize discrimination by privately 
owned restaurants was thought to be “clearly violative of the 
Fourteenth Amendment” by Mr. Justice Stewart, concurring in 
B u rto n  v. W ilm in g to n  P a rk in g  A u th o r ity , 365 U. S. 715, 727. Three 
dissenting Justices agreed this would follow if that were a proper



18

“ [I]t has never been suggested that state court action 
is immunized from the operation of [the Fourteenth 
Amendment] . . . simply because the act is that of the 
judicial branch of the state government.” Shelley v. 
Kraemer, 334 U. S. at 18. See also Barrows v. Jackson, 
346 U. S. 249; N.A.A.C.P. v. Alabama, 357 U. S. 499, 463. 
Police action which segregates denies Fourteenth Amend­
ment rights. Taylor v. Louisiana, 370 U. S. 154; Baldwin 
v. Morgan, 287 F. 2d 750 (5th Cir. 1961); Boman v. Birming­
ham Transit Co., 280 F. 2d 531, 533, note 1 (5th Cir. 1960); 
see also Monroe v. Pape, 365 U. S. 167; Screws v. TJnited 
States, 325 U. S. 91. “Nor is the Amendment ineffective 
simply because the particular pattern of discrimination, 
which the State has enforced, was defined initially by the 
terms of a prior agreement. State action, as that phrase 
is understood for the purposes of the Fourteenth Amend­
ment, refers to exertions of state power in all forms.” 
Shelley v. Kraemer, 334 U. S. at 20; see also Burton v. 
Wilmington Parking Authority, 365 U. S. 715, 722.

In the Civil Rights Cases, 109 U. S. 3, 17, this Court held 
outside the Amendment’s scope individual action “unsup­
ported by State authority in the shape of laws, customs, 
or judicial or executive proceedings” or “not sanctioned in 
some way by the State” 109 U. S. at 17. The opinion referred 
to “State action of every kind” inconsistent with equal pro­

construction of the law, 365 U. S. 715, 727, 729. State laws requir­
ing segregation in the use and occupancy of privately owned prop­
erty were invalidated in B uchanan  v. W a rle y , 245 U. S. 60; and 
H arm on  v. T y le r , 273 U. S. 668.

Among the numerous cases forbidding segregation in publicly 
owned but privately leased facilities, see B u rto n  v. W ilm in g to n  
P a rk in g  A u th o r ity , 365 U. S. 715; T u rn er  v. M em phis, 369 U. S. 
350; M u ir  v. L o u isv ille  P a rk  T h ea trica l A ss ’n, 347 U. S. 971, vacat­
ing and remanding, 202 F. 2d 275; H errin g to n  v. P lu m m er, 240 
F. 2d 922 (5th Cir. 1956), cert. den. sub nom . C asey  v. P lu m m er, 
353 U. S. 924.



19

tection of the laws, id. at p. 11; to “the operation of State 
laws, and the action of State officers executive or judicial,” 
id. at p. 11. Repeatedly, the opinion held within the scope 
of the Fourteenth Amendment “state laws or state pro­
ceedings,” id. at 11; “some State action,” id. at 13; “acts 
done under State authority,” id. at 13; “State action of 
some kind,” id. at 13; and the opinion pointed out that 
“States are forbidden to legislate or act in a particular 
way,” id. at 15. The Fourteenth Amendment is “addressed 
to counteract and afford relief against state regulations or 
proceedings,” id. at 23.

Racial discriminations “are by their very nature odious 
to a free people whose institutions are founded upon the 
doctrine of equality.” Hirabayaslii v. United States, 320 
U. S. 81, 100. Certainly in this case the State is more 
deeply implicated in enforcing that racism so odious to our 
Constitution than it was in Shelley v. Kraemer. For here, 
the State has not merely held its courts open to suitors who 
would seek their aid in enforcing discrimination, but has 
taken the initiative in arresting and prosecuting petitioners 
criminally and sentencing them to fines or prison terms.

Moreover, petitioners here assert not merely the gen­
eralized constitutional right found in the equal protection 
clause of the Fourteenth Amendment to be free from racial 
discrimination. 42 U. S. C. 1981 provides: “All persons 
within the jurisdiction of the United States shall have 
the same right in every State and Territory to make and 
enforce contracts, and to the full and equal benefit of all laws 
and proceedings for the security of persons and property 
as is enjoyed by white citizens.” 42 U. S. C. 1982 provides: 
“All citizens of the United States shall have the same 
right, in every State and Territory, as is enjoyed by white 
citizens thereof to * * * purchase * * * real and personal 
property.” Referring to similar statutory provisions in-



20

volving jury service, this Court has declared: “For us the 
majestic generalities of the Fourteenth Amendment are 
thus reduced to a concrete statutory command when cases 
involve race or color which is wanting in every other case 
of alleged discrimination.” Fay v. New York, 332 U. S. 
261, 282-283.

The opinion below stresses that Kress’s is “a privately 
owned business” (R. 58). But “private” is a word of several 
possible meanings. To the extent that concepts of privacy 
play a part in defining rights here at issue, Kress’s privacy 
should be seen as it really is. Any suggestion that some 
exception to the Shelley rule should be made for a corpora­
tion which has sought state aid in enforcing racial discrim­
ination in its enterprise open to the general public for 
profit, because somehow the inviolability of a private home 
may be impaired, is without merit. This prosecution is 
not asserted to be in aid of any interest in privacy of the 
property owner, for it has opened the store to the public 
in general. And the lunch counter was not closed after 
petitioners were seated in order to exert any claim of 
privacy but to conform with local law (R. 23). As soon as 
petitioners were arrested by the police and removed, the 
lunch counter was reopened (R. 23). For this reason, the 
suggestion of the Supreme Court of South Carolina that 
a business is “not devoted to public use” once an individual’s 
“implied license to enter” is revoked is not sound (R. 58, 59). 
Moreover, the proprietor here has not expressed its pref­
erence, rather it has sought state aid to enforce the custom 
of the community. Were a state to enforce a trespass law 
to protect a real interest in some private aspect of prop­
erty a different result might be required because of the 
importance of the right of privacy which finds firm support 
in the decisions of this Court. Examples where such coun­
tervailing considerations have applied are cases such as



21

Breard v. Alexandria, 341 U. S. 622, 626, 644, and Kovacs 
v. Cooper, 336 U. S. 77. On the other hand a case such as 
Martin v. Strutliers, 319 U. S. 141, is an instance where even 
considerations of privacy did not overcome a competing 
constitutional right like freedom of religion.6 In this case, 
the right to freedom from state imposed racial discrimina­
tion does not compete with any interest the state may have 
in protecting privacy.6

5 And see W a tch to w er  B ib le  a n d  T ra c t Soc. v. M etro p o lita n  L ife  
Ins. Co., 297 N. Y. 339, 79 N. E. 2d 433 (1948) in which the New 
York courts distinguished between the right to solicit in the streets 
of a large scale housing project and to go, without invitation, into 
the hallways to visit private apartments.

6 To weigh considerations of privacy in a ease involving racial 
discrimination would comport with the views of the framers of 
the Fourteenth Amendment. During the debate on the bill in­
troduced in the Senate by Charles Sumner of Massachusetts on 
December 20, 1871, to amend the C iv il R ig h ts  A c t  of 1866, 14 Stat. 
27, which served as the precursor to the C iv il R ig h ts  A c t of 1875, 
18 Stat. 336, Senator Sumner distinguished between a man’s home 
and places and facilities of public accommodation licensed by law : 
“Each person, whether Senator or citizen, is always free to choose 
who shall be his friend, his associate, his guest. And does not the 
ancient proverb declare that a man is known by the company he 
keeps ? But this assumes that he may choose for himself. His house 
is his ‘castle’; and this very designation, borrowed from the common 
law, shows his absolute independence within its walls; * * * but 
when he leaves his ‘castle’ and goes abroad, this independence is at 
an end. He walks the streets; but he is subject to the prevailing 
law of E q u a li ty ;  nor can he appropriate the sidewalk to his own 
exclusive use, driving into the gutter all whose skin is less white 
than his own. But nobody pretends that Equality on the highway, 
whether on pavement or sidewalk, is a question of society. And, 
permit me to say that E q u a lity  in  a ll in s titu tio n s  crea ted  or reg u ­
la ted  b y  law  is as little a question of society” (emphasis added). 
After quoting Holingshead, Story, Kent, and Parsons on the com­
mon law duties of innkeepers and common carriers to treat all 
alike, Sumner then said: “As the inn cannot close its doors, or the 
public conveyance refuse a seat to any paying traveler, decent in 
condition, so must it be with the theater and other places of public 
amsuement. Here are institutions whose peculiar object is the ‘pur­
suit of happiness,’ which has been placed among the equal rights of 
all.” Cong. Globe, 42d Cong., 2d Sess., 382-383 (1873).

It is not unreasonable that considerations of privacy should weigh 
so heavily. The right of privacy against intrusion on one’s premises



22

C. Certainly, at Least, the State May Not by Its Police 
and Courts Enforce Such Segregation When It Stems 
From a Community Custom of Segregation Which 
Has Been Generated by State Law.

Certainly, at the very least, the well established rule— 
that states may not enforce racial discrimination—dis­
cussed in part B, applies where the racial segregation is 
not a matter of private choice, but expresses deep-rooted 
public policy.

That segregation was the custom of the community is 
stated expressly on the record, although one hardly need 
turn there to learn a fact concerning conditions in society 
so well known. Child Labor Tax Case, 259 U. S. 20, 37. 
Kress’s manager, however, made clear that the store’s seg­
regation policy was merely that of community law and 
custom (R. 23).

Q. Mr. West, why did you order your lunch counter 
closed? A. I t ’s contrary to local customs and it’s also 
the ordinance that has been discussed.

Q. As I understand then further, that you are say­
ing that the presence of Negroes at your lunch counter 
was contrary to customs? A. Yes, sir.

The Civil Rights Cases speak of “customs having the 
force of law,” 109 U. S. 3, 16, as a form of state action.7

or into one’s personal affairs, 4 Blackstone’s Commentaries Ch. 13, 
§5(6) (Wendell's Ed. 1850), was recognized at common law, and 
is recognized generally in American law. See A. L. I., Restatement 
of Torts, §867 (1939). This Court has recently reiterated that the 
due process clause protects privacy against intrusion by the States. 
M a p p  v. Ohio, 367 U. S. 643, 654, 655; W o lf  v. C olorado, 338 U. S. 
25, 27-28. Cf. G ilb er t v. M innesota , 254 U. S. 325, 336 (Justice 
Brandeis dissenting); P u b lic  U tilitie s  C om m ’n  v. P oliak , 343 U. S. 
451, 464, 468.

7 See also 109 U. S. at 21 “long custom, which had the force of 
law.”



23

Here, as in Garner v. Louisiana,, 368 U. S. 157, “ [segrega­
tion is basic to the structure of . . . [the state] as a com­
munity; the custom that maintains it is at least powerful 
as any law.” (Mr. Justice Douglas concurring at 181.)8

Custom in South Carolina is not separate from law. 
As indicated by the Greenville segregation ordinance, cus­
tom and law are interdependent. Custom has roots in and 
fills the interstices of a complex network of state man­
dated segregation. State and city imposed requirements 
govern not only activities furnished by the state but pri­
vately-owned facilities as well. The subordinate role to 
which the segregation laws relegate Negroes is well illus­
trated by §40-452, South Carolina Code of Laws, 1952, 
making it unlawful for white and colored employees in 
textile factories to (a) work together in the same room, 
(b) use same entrance or exit, (c) use and occupy same 
pay windows, (d) use same stairway or window at the 
same time, and (e) use at any time same lavatories, toilets, 
drinking water, buckets, pails, cups, dippers or glasses.

In South Carolina “Schools are segregated from gram­
mar school up through college. Pupils are assigned to 
their respective schools by race.” 9 State appropriations are 
inoperative for schools from or to which students transfer 
as a result of court order.10

8 This Court has recognized that “ ‘Deeply embedded traditional 
ways of carrying out state policy . . . ’—or not carrying it out—‘are 
often tougher and truer law than the dead words of the written 
text.’ Nashville C. & St. L . R . Co. v. Browning, 310 U. S. 362, 369” ; 
Poe v. Ullman, 367 U. S. 497, 502.

9 Report of the South Carolina State Advisory Committee to the 
United States Commission on Civil Rights, “The 50 States Report” 
p. 564 (1961). S. C. Const, art. 11 §7 compels racial segregation 
in schools.

10 South Carolina Code of Laws §21-2 (1957 Supp.). See also 
S. C. A. & J. R. 1952 (47) 2223, A. & J. R. 1954 (48) 1695 repealing



24

State law requires segregation at circuses and travelling 
shows;11 in prisons and chain gangs;11 12 on steam ferries 
and in railroad cars;13 in station restaurants or eating 
places;14 on street cars where Negroes are to be seated 
in the rear15 and when standing are to be kept as far from 
whites as practicable;16 Negroes and whites must separate 
on interurban cars17 or may be sentenced to work on the 
county chain gang.18 It is a crime in South Carolina to 
give a colored person custody of a white child.19 Marriage 
of one of African descent to one who is not of African 
descent is prohibited.20 Such a marriage is void and sub­
jects the parties to criminal penalties.21 The South Caro­
lina park system is segregated by statute.22 When a statute 
prohibiting joint use of parks in cities of over 60,000 in 
population was declared unconstitutional in Clark v. Flory,

S. C. Const, art. 11 §5 (1895) which required legislature to main­
tain free public schools; S. C. Code §§21-761 to -779 (regular school 
attendance) repealed by A. & J. R. 1955 (49) 85; §21-238 (1957 
Supp.) (school officials may sell or lease school property whenever 
they deem it expedient) ; §21-230(7) (local trustees may or may not 
operate schools).

11 S. C. Code §5-19 (1952).
12 S. C. Code §55-1 (1952).
13 S. C. Code §§58-714, 715, 718-720 (1952).
14 S. C. Code §58-551 (1952).
15 S. C. Code §58-1331 (1952).
16 S. C. Code §58-1332 (1952).
17 S. C. Code §58-1334 (1952).
18 S. C. Code §§58-1337, 1338 (1952).
19 S. C. Code §16-553 (1952).
20 S. C. Const, art. 3 §33.
21 S. C. Code §§20-7 to -8 (1952).
22 S. C. Code §§51-1, 2.1-2.4 (1957 Supp.).



25

141 F. Supp. 248 (E. D. S. C. 1956),23 a new statute imme­
diately closed the park in question.24 Public libraries are, 
with two exceptions, segregated and in some localities 
“Negroes who enter publicly supported libraries that are 
reserved for whites are subject to a line . . . [or] . . . 
imprisonment.” 25 The extent and persistence of local seg­
regation cases in South Carolina generally and Greenville, 
South Carolina, in particular, can be judged from a trial 
warrant dated April 5, 1962, in which the City charged a 
Negro with the crime of violating “Sec. 31.10, the Code of 
City of Greenville S. C. 1953 Be Unlawful for Colored 
person to occupy Residence in White Block.” 26 Cf. 
Buchanan v. Warley, 245 U. S. 60 (1914).

C. Vann Woodward has written of the relative recency 
of the segregation system in America:

Southerners and other Americans of middle age or 
even older are contemporaries of Jim Crow. They 
grew up along with the system. Unable to remember a 
time when segregation was not the general rule and 
practice, they have naturally assumed that things have 
“always been that way.” Or if not always, then “since 
slavery times,” or “since The War,” or “since recon­
struction.” Some even think of the system as existing 
along with slavery. Few have any idea of the relative 
recency of the Jim Crow laws, or any clear notion of 
how, when, and why the system arose. Woodward, The 
Strange Career of Jim Crow, pp. vii-viii (1955).

23 S. C. Code §§51-181-84 (1952).
24 S. C. A. & J. R., 1956, No. 917.
25 Report of the South Carolina State Advisory Committee to the 

United States Commission on Civil Rights, “The 50 States Report,” 
p. 566 (1961).

26 City of Greenville Trial Warrant No. 179, C ity  v. R obinson .



26

Even after the end of Reconstruction and during the 
so-called period of “Redemption” beginning around 1877, 
the rigid segregation system characteristic of later years 
had not become the rule. The history of segregation makes 
clear that during the early years after Reconstruction 
Negroes were unsegregated in many public eating estab­
lishments in the South. Id. at 18-24. The Jim Crow or 
segregation system became all-pervasive some years later 
as a part of the aggressive racism of the 1890’s and early 
1900’s, including Jim Crow laws passed at that time, which 
continued until an all-embracing segregation system had 
become the rule. In this way law shaped custom id. at 
ch. II.

Professor Woodward writes:

At any rate, the findings of the present investigation 
tend to bear out the testimony of Negroes from various 
parts of the South, as reported by the Swedish writer 
Gunnar Myrdal, to the effect that ‘the Jim Crow stat­
utes were effective means of tightening and freezing 
—in many cases instigating—segregation and discrim­
ination.’ The evidence has indicated that under condi­
tions prevailing in the earlier part of the period re­
viewed the Negro could and did do many things in the 
South that in the latter part of the period, under dif­
ferent conditions, he was prevented from doing. Id. 
at 90-91.

#  #  #  #  #

It has also been seen that their [Negroes] presence 
on trains upon equal terms with white men was once 
regarded as normal, acceptable, and unobjectionable. 
Whether railways qualify as folkways or stateways, 
black man and white man once rode them together and 
without a partition between them. Later on the state- 
ways apparently changed the folkways—or at any rate 
the railways—for the partitions and Jim Crow cars



27

became universal. And the new seating arrangement 
came to seem as normal, unchangeable, and inevitable 
as the old ways. And so it was with the soda fountains, 
eating places, bars, waiting rooms, street cars, and 
circuses. Id. at 91-92.

Thus the system of segregation in places of public ac­
commodations, has from the beginning been a product of 
government, politics, and law.

This Court has recognized how law may work its effect in 
ways other than requiring obedience to statutory text. 
In Pollock v. Williams, 322 U. S. 4, the Court discharged 
the petitioner on a writ of habeas corpus because a statu­
tory presumption had induced a plea of guilty:

The State contends that we must exclude the prima 
facie evidence provision from consideration because 
in fact it played no part in producing this conviction. 
Id. at 13.

*  *  #  #  *

We cannot doubt that the presumption provision had 
a coercive effect in producing the plea of guilty. Id. 
at 15.

And see, Engel v. Vitale, 370 U. S. 421, 430 (“indirect co­
ercive pressure upon religious immunities”)- As was said 
in N.A.A.C.P. v. Alabama, 357 U. S. 449, 463, “The crucial 
factor is the interplay of governmental and private action, 
for it is only after the initial exertion of state power . . . 
that private action takes hold.” N.A.A.C.P. v. Alabama, 357 
U. S. 449, 463.27

27 This Court has struck down state action which would enable 
private individuals to seek reprisals against persons opposed to ra­
cial discrimination, N .A .A .C .P . v. A labam a , 357 U. S. 449. A  fo r ­
tiori, the link between state req u irem en ts  of segregation and the 
conduct it fosters—not merely permits—should be recognized.



28

Therefore it hardly can be urged that the management 
was acting privately, unsanctioned by the state. Apart 
from state support of management’s decision to segregate, 
that decision itself represented the policy of a City ordi­
nance and the policy induced and nourished by the laws of 
South Carolina. As Mr. Justice Douglas wrote in Garner 
v. Louisiana, 368 U. S. 157, 181, the proprietor’s “pref­
erence does not make the action ‘private’ rather than ‘state,’ 
action. If it did, a minuscule of private prejudice would 
convert state into private action. Moreover, where the 
segregation policy is the policy of a state, it matters not 
that the agency to enforce it is a private enterprise.”

D. A F ortiori, the State May Not Arrest and Convict Peti­
tioners for Having Violated a Segregation Policy 
Which Stems From a State Generated, Community 
Custom of Segregation in Premises in Which the 
State Is Deeply Involved Through Its Licensing and 
Regulatory Powers.

The nature of the State’s involvement—demonstrated by 
extensive regulation and licensing—in the premises where 
petitioners were arrested for violating the state generated 
community custom shows even further the invalidity of the 
judgment below. This discrimination has been enforced in 
an area of public life with which the State is so intimately 
involved that Kress’s lunch counter business is by law re­
quired to be extensively licensed and regulated. The very 
publicness of the enterprise is demonstrated not only by 
the fact that Kress serves the general public, but by the 
interest which the State has demonstrated in that service. 
In addition to the detailed regulation of business corpora­
tions (including foreign corporations)28 South Carolina

28 S. C. Code §§12-1 to 12-1083 (1952).



29

law requires and authorizes various licenses,20 imposes 
taxes,30 and requires state and authorizes local health regu­
lation31 of this type of business. As Mr. Justice Douglas 
wrote in Garner v. Louisiana, 368 U. S. at 183-84:

A state may not require segregation of the races on 
conventional public utilities any more than it can seg­
regate them in ordinary public facilities. As stated 
by the court in Boman v Birmingham Transit Co. (CA 
5 Ala) 280 F2d 531, 535, a public utility “is doing some­
thing the state deems useful for the public necessity or 
convenience.” It was this idea that the first Mr. Justice 
Harlan, dissenting in Plessy v Ferguson, . . . ad­
vanced. Though a common carrier is private enter­
prise, “its work” he maintained is public. Id. 163 US at

29 Chain stores are licensed by the state, S. C. Code §§65-1381- 
1391 (1952). S. C. Code §§25-51, 52 (1952), authorizes towns and 
cities to regulate, license and inspect restaurants and lunch coun­
ters. When city or town ordinances are not complied with, the 
license may be revoked and the licensee subject to criminal penal­
ties, S. C. Code §§52-53, 54 (1952). Respondents’ Opposition to Pe­
tition for Writ of Certiorari, p. 5, is, therefore, incorrect when it 
states: “The only license it [Kress & Company] is dependent upon 
is the continued good will of the buying public.”

30 South Carolina law requires a license tax, S. C. Code §65-1382 
(1952). Retail stores collect a sales tax (Chain Store Tax), S. C. 
Code §65-1401 (1952) and are required to keep and preserve records 
of gross receipts, S. C. Code §65-1449 (1952). In addition, South 
Carolina has a use tax which applies to retailers, S. C. Code §§65- 
1421-1433 (1952).

31 State law prescribes comprehensive regulations for places where 
food is to be served. See Rules and Regulations, S. C. Code, Title 7, 
pp. 593-596. Restaurants are inspected and graded, Ib id , at pp. 593- 
4; must display the grade received on health inspection, Ib id , at 
p. 593; keep outside doors screened, S. C. Code §35-125 (1952); 
furnish a clean towel and individual soap (use of roller towels pro­
hibited) S. C. Code §35-126 (1952); clean refrigerators and venti­
late kitchens, S. C. Code §35-130 (1952); cover garbage in barrels 
or galvanized iron cans, S. C. Code §35-133 (1952). Restaurant em­
ployees must receive a physical examination before employment, 
S. C. Code §35-135 (1952). Local regulation is authorized by S. C. 
Code §§25-51 et seq. (1952).



30

554. And there can be no difference, in my view, be­
tween one kind of business that is regulated in the pub­
lic interest and another land so far as the problem of 
a State that licenses a business can license it to serve 
only whites or only blacks or only yellows or only 
browns. Race is an impermissible classification when 
it comes to parks or other municipal facilities by rea­
son of the Equal Protection Clause of the Fourteenth 
Amendment.

In Public Utilities Comm'n v. Poliak, 343 U. S. 451, this 
Court found sufficient governmental responsibility to re­
quire decision of a Fifth Amendment due process claim 
where the principal governmental involvement was a deci­
sion by a regulatory body to do nothing about private 
activity (radio broadcast on streetcars) it could have pro­
hibited. The lunch counter in this case is also regulated 
by government, although perhaps not so closely as the 
streetcar company in Poliak. But this case has an element 
that the Poliak case did not, i.e., that government has done 
so much to encourage racial segregation in public life that 
it must share responsibility for the discriminatory rule.

And see Steele v. Louisville and Nashville R.R. Co., 323 
U. S. 192; Nixon v. Condon, 286 U. S. 73; Retts v. Easley, 
161 Kan. 459, 169 P. 2d 831. In each of these cases, state 
initiative and licensing in establishing and maintaining the 
enterprise led to a holding or implication that the Fifth 
or Fourteenth Amendments forbid racial discrimination.

Here, indeed, is a case where the State “to some sig­
nificant extent” in many meaningful “manifestations has 
been found to have become involved . . . ” Rurton v. 
Wilmington Parking Authority, 365 U. S. 715, 722.



31

E. No Essential Property Right of S. H. Kress and Co.
Is Here at Issue; the Right to Make Racial Distinc­
tions at a Single Counter in a Store Open to the 
Public Does Not Outweigh the High Purposes of 
the Fourteenth Amendment.

The highest court of South Carolina attempted to dif­
ferentiate this case from others which have refused to 
sanction state enforcement of racial discrimination by as­
serting that it was merely neutrally enforcing (R. 57, 58) 
a “right of those in control of private property” (R. 58) 
irrespective of color. The court defined the property right 
as “the liberty to revoke [the implied] license [to enter] 
at any time” (R. 58).

By failing to analyze the property right in question, 
however, the court, in effect, assumed that the right of the 
property owner to racially discriminate was inviolate. 
States can, of course, prohibit racial discrimination in 
public eating places without offending any constitutionally 
protected property rights.32 And though the laws violate 
the Fourteenth Amendment, South Carolina and the City 
of Greenville here imposed the requirement of racial seg­
regation on private property owners.33 Thus, of course, 
the asserted property right to treat the races as one desires 
on his property is very far indeed from an absolute right 
and has not even been so regarded by South Carolina. 
“ [T]he power of the State to create and enforce property 
interests must be exercised within the boundaries defined 
by the Fourteenth Amendment.” Shelley v. Kraemer, 334

32 See W estern  T u r f  A ss ’n  v. G reen berg , 204 U. S. 359; R a ilw a y  
M ail A ss ’n  v. C orsi, 326 U. S. 88; D is tr ic t  o f C o lu m bia  v. Joh n  R . 
Thom pson Co., 346 U. S. 100; B ob-Lo E x cu rsio n  Co. v. M ichigan , 
333 U. S. 28 . Konvitz & Leskes, A  C e n tu ry  of C iv il R ig h ts , 172- 
177 (1961).

33 See pp. 24 to 25, su p ra , citing South Carolina laws requiring 
segregation on private property and R. 49 setting forth Greenville’s 
segregation in eating facilities ordinance.



32

U. S. 1, 22, citing Marsh v. Alabama, 326 U. S. 501. Indeed, 
the Court said in Marsh v. Alabama, supra, at 506 that 
constitutional control becomes greater as property is more 
public in its use:

The more an owner for his advantage, opens up his 
property for use by the public in general, the more 
do his rights become circumscribed by the statutory 
and constitutional rights of those who use it. Cf. 
Republic Aviation Corp. v. Labor Board, 324 U. S. 
793, 798, 802, n. 8.

Of course, the Fourteenth Amendment does not forbid a 
state to assist in the enforcement of property rights as 
such. Indeed, for an obvious example, the state has an 
obligation not to engage in or assist in the invasion of the 
privacy of the home. Considerations of privacy, discussed 
in more detail, supra, pp. 20-21, offer one useful basis for 
distinguishing between permissible and impermissible types 
of state action.

Since “property or ownership” is, as Mr. Justice Cardozo 
has written, a “bundle of privileges” Henneford v. Silas 
Mason Co., 300 U. S. 577, 582, or as stated elsewhere, “a 
group or bundle of rights” given by the state, Blodgett, 
Comparative Economic Systems 24 (1944), it matters a 
great deal which of the rights or privileges constituting 
Kress’s property was enforced in this prosecution. Vari­
ous characteristics of the property interest demonstrate 
that this case should not depart from the general rule that 
states may not support racial discrimination.

The asserted property interest is but a claimed right to 
control the conduct and associations of others. But this 
claimed right is clearly separable from other incidents of 
ownership of the property such as fixing prices, choosing



33

merchandise for sale, setting hours of business, selling the 
business or closing it down, to name but a few.

The power to regulate the conduct and associations of 
others has never been an unrestrained property right. Il­
lustrations include limitations that the law has placed on 
those who would use their property to control the conduct 
of donees, as by requiring divorce or separation,34 or with 
respect to marriage,35 restrictions compelling separation of 
a child from its parents,36 and requirements controlling cer­
tain personal habits.37

The power to impose restraints on alienation has been 
severely limited by courts and legislatures.38 * * * * Restrictive

34 Provisions requiring divorce or separation were held void in : 
D w y e r  v. K u ch ler , 116 N. J. Eq. 426, 174 Atl. 154 (Ch. 1934); In  
Re H a ig h t’s W ill, 51 App. Div. 310, 64 N. Y. S. 1029 (2d Dept. 
1900); D a vid so n  v. W ilm in g to n  T ru s t Co., 23 Del. Ch. 1, 2 A. 2d 285 
(Ch. 1938); W in te r la n d  v. W in te r la n d , 389 111. 384, 59 N. E. 2d 
661 (1945); H a w k e  v. E u y h a r t, 30 Neb. 149, 46 N. W. 422 (1890); 
C ruger v. P h e lp s , 21 Misc. 252, 47 N. Y. S. 61 (Sup. Ct. 1897).

35 Certain marriage clauses have been held ineffective—6 Powell, 
R eal P r o p e r ty  t[851; A. L. I., R e sta te m e n t o f P r o p e r ty , p49 , n. 1, 
§424 (1944); M addox  v. M addox , A d m ’r, 52 Ya. 804 (1954).

36 Restrictions which compel the separation of a minor child from 
its parent have not been viewed with favor, 6 Powell, R eal P r o p e r ty  
f 858, at 64; I n  R e C a rp le ’s E s ta te , 140 Misc. 459, 250 N. Y. S. 680 
(Surr. Ct. 1931) ; In  R e F o r te ’s W ill, 149 Misc. 327, 267 N. Y. S. 
603 (Surr. Ct. 1933); In  R e R a n n e y ’s E s ta te , 161 Misc. 626, 292 
N.Y. S. 476 (Surr. Ct. 1936).

37 H olm es v. C on n ecticu t T ru s t &  S a fe  D e p o s it Co., 92 Conn. 507, 
103 Atl. 640 (1918) (condition that conveyee’s husband abstain 
from tobacco and liquor held vo id ); cf. D ’A rcan gelo  v. D ’A rcan gelo , 
137 N. J. Eq. 63, 43 A. 2d 169 (Ch. 1945) (legatee must employ 
testator’s brother as bus driver, at designated salary for a corpora­
tion in which legatee had received an interest; invalidated).

38 Gray, R e s tra in ts  on th e  A lie n a tio n  o f P r o p e r ty , §259 (2d ed.
1895, A. L. I., R e sta te m e n t o f P r o p e r ty , Div. 4, Social Restrictions
Imposed upon the Creation of Property Interests, p. 2121 (1944);
Browder, I lleg a l C on d ition s an d  L im ita tio n s :  M iscellaneous P ro ­
visions, 1 Okla. L. Rev. 237 (1948).



34

covenants have been limited by common law.39 Their en­
forcement in courts of equity40 and courts of law41 has been 
forbidden by the Fourteenth Amendment where race was 
the reason for the restriction. And, of course, the rule 
against perpetuities is of ancient lineage.42

A business man is not always free to set his own prices. 
The fair trade acts on the one hand, approved by the 
Miller-Tydings Act amendment of §1 of the Sherman Act, 
15 U. S. C. §1, require some businessmen to sell at fixed 
prices. Anti-trust concepts on the other hand, originating 
in the common law, Apex Hosiery Co. v. Leader, 310 U. S. 
469 (1940), United States v. Addyston Pipe <& Steel Co., 
85 Fed. 271 (6th Cir. 1898), aff’d, 175 U. S. 211 (1899), and 
embodied in the statutes of the United States, Robinson- 
Patman Act, 15 U. S. C. §13 et seq.; Clayton Act, 15 U. S. C. 
§12et seq.; Sherman Anti-Trust Act, 15 U. S. C. §1 et seq., 
have condemned price discrimination, price fixing, and con­
spiracies to fix resale prices. The right to select customers 
has also been curtailed by the antitrust laws,43 as well as 
common law, and even the right of a single trader has been 
greatly limited.44 * *

Numerous statutes and ordinances limit property hold­
ers in their power to refuse to sell or rent on grounds of

39 P o r te r  v. B a rre tt , 233 Mich. 373, 206 N. W. 532 (1925).
40 S h e lle y  v. K ra em er, 334 U. S. 1.
41 B arrow s  v. Jackson , 346 U. S. 249.
42 Gray, The B u ie  A g a in s t P e rp e tu itie s  §201 (4th ed. 1942); 6 

Powell, R ea l P r o p e r ty , ^759-827; Leach, P e rp e tu itie s  in  a  N u tsh ell, 
51 Harv.L. Rev. 638 (1938).

43 K lo r ’s v. B ro a d w a y-H a le  S to res , 359 U. S. 207 (1959); L orain  
J o u rn a l Co. v. V. S ., 342 U. S. 143 (1951).

44 U n ited  S ta te s  v. C olgate, 250 U. S. 300 (1919); See 77. S . v.
P a rk e  D a v is  <& Co., 362 U. S. 29 (1960); Rankin, The P a rk e , D avis
Case, 1961 Antitrust Law Symposium, New York State Bar As­
sociation Section on Antitrust Law 63 (1961).



35

race or color45 or to refuse to serve patrons in public ac­
commodations on the grounds of race or color.46 Histor­
ically, the right to select customers has been limited by 
common law and statute.47 It is well known that innkeepers

45 Cal. Health & Safety Code §35740; Mass. G. L. c. 151B, 
§6 (Supp. 1961); N. J. Stat. Ann. §18:25-4 (Supp. 1961); Wash. 
Rev. Code §§49.60.030, 49.60.040 (1957); Cal. Civil Code, §51 
(Supp. 1961); Colo. Rev. Stat. Ann. §§69-7-1, to 69-7-7 (Supp.
1960) ; Conn. Stat. Rev. §53-35 (Supp. 1960) ; Mass. Gen. L. c. 
151B, §4 (Supp. 1961), as amended by Acts, 1961, c. 128; Minn. 
Stat. Ann. §§363.01-. 13, as amended by L. 1961, c. 428 to become 
effective in 12/31/62; Ore. Rev. Stat. §659.033 (1959); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. Y. Executive Law, §290 
(Supp. 1962); Pa. Stat. Ann., tit. 43, §953 (Supp. 1961). Cases 
bolding some of the ordinances and statutes constitutional are: 
L e v itt  & S on s, In c. v. D iv is io n  A g a in s t D iscrim in a tion , 31 N. J. 
514, 158 A. 2d 177 (1960) ; Mass. C om m ’n A g a in s t D iscrim in a tion  
v. Colangelo, 30 U. S. L. W. 2608 (Mass. 1962); S ta te  C om m ’n 
A gain st D iscrim in a tio n  v. P elh am  H a ll A p a r tm e n ts , 10 Misc. 2d 
334, 170 N. Y. S. 2d 750 (Sup. Ct. 1958).

46 Cal. Civil Code, §§51-52 (Supp. 1960); Colo. Rev. Stat. Ann. 
25—1—1 e t seq. (1953); Conn. Gen. Stat. Rev. §53-35 (Supp.
1961) ; D. C. Code §47-2901 et seq. (Supp. 1960); Indiana Stat. 
Ann. §§10-901, 10-902 (Supp. 1962); Iowa Code Ann. §735.1 
(1950); Kansas Gen. Stat. Ann. §21-2424 (1949); Mass. Gen. L. 
c. 272, §§92A, 98 (1956); Mich. Stat. Ann. §28.343 (Supp. 1959); 
Minn. Stat. Ann. §327.09 (1947); Mont. Rev. Codes §64-211 
(Supp. 1961); Neb. Rev. Stat. §§20-101, 102 (1943); N. H. Rev. 
Stat. Ann. §354:1 (Supp. 1961); N. J. Stat. Ann. §§10:1-2 to 
10:1-7 (1960) ; N. M. Stat. Ann. §§49-8-1 to 49-8-6 (Supp. 1961); 
N. Y. Civil Rights Law §40 (1948); Executive Law, §§292(9), 
296(2) (Sbpp. 1962); N. D. Cent. Code, §12-22-30 (Supp. 1961); 
Ohio Rev. Code §4112.02(G) (Supp. 1961); Ore. Rev. Stat. 
§§30.670-.680, as amended by L. 1961 c. 247; Pa. Stat. Ann., tit. 18, 
§4654, as amended by Act No. 19 (1961); R. I. Gen. Laws §§11-24-1 
to 11-24-6 (1956) ; Vt. Stat. Ann., tit. 13, §§1451, 1452 (1958); 
Wash. Rev. Code, §§49.60.040, 49.60.215 (1962); Wis. Stat. Ann. 
§924.04 (1958), as amended (Supp. 1962); Wyo. Stat. §§6-83.1, 
6-83.2 (Supp. 1961).

47 Mund, “The Right to Buy—And Its Denial to Small Business,” 
Senate Document #32 , 85th Cong., 1st Sess., Select Committee on 
Small Business (1957); Adler, B u sin ess J u risp ru d en ce , 28 Harv. 
L. Rev. 135 (1914); Statute of Labourers, 25 Ed. I ll ,  Stat. 1 
(1350) (no one could refuse to practice bis calling to whomsoever 
applied). The following statutes penalized a businessman’s refusal to



36

and carriers do not have freedom arbitrarily to select or 
reject patrons. Beale, The Law of Innkeepers and Hotels 
(1906).

The foregoing limitations on the power to control the 
conduct and associations of others describe particular ex­
amples of the general principle that “property rights” are 
not absolute in the sense that common law, statute, and 
constitution may not limit or shape them where they have 
harmful public consequences. Further examples indicate 
different aspects of this thoroughly settled, fundamental 
legal truth. Property owners have been compelled to de­
stroy valuable cedar forests which harbored fungus threat­
ening neighboring apple orchards,48 to spend funds to 
install fire extinguishing equipment,49 to limit the size of 
billboards,50 and to make loaves of bread a certain size.51 
Moreover, employers have been compelled to allow labor 
organizational activities to be conducted on their property.52 
And only recently, property holders have been forbidden 
to use their property in a way which would, in the course 
of a program of racial discrimination, intimidate their

serve all comers: (1357), 31 Ed. I ll , c. 10 (victualers); (1360), 35 
Ed. I l l  (fishermen); (1433), 11 Hen. VI, c. 12 (candlers) ; (1464), 
4 Ed. IV, c. 7 (shoemakers); L an e  v. C otton , 1 Ld. Raym. 646, 655; 
1 Salk. 18, 19; 12 Mod. 472, 484 (“If a man takes upon himself a 
public employment, he is bound to serve the public as far as the 
employment extends, and for refusal an action lies . . . ”).

48 M iller  v. Schoene, 276 U. S. 272 (1928).
49 Q ueenside H ills  R e a lty  Co. v. S a x l, 328 U. S. 80 (1946).
50 S en d er  v. O regon S ta te  B o a rd  of D e n ta l E x a m in ers, 394 U. S. 

608 (1935); S t. L ou is P o s te r  A d v e r tis in g  Co. v. S t. L ou is, 249 U. S. 
269 (1919); Thom as C usack Co. v. Chicago, 242 U. S. 526 (1917).

51 S ch m id in g er  v. C hicago, 226 U. S. 578.
52 N .L .R .B . v. B abcock &  W ilcox  Co., 351 U. S. 105 (1955) ; R e­

p u b lic  A v ia tio n  C orp . v. N .L .R .B ., 324 U. S. 793 (1945).



37

lessees in the exercise of the franchise. United States v. 
Beaty, 288 F. 2d 653 (6th Cir. 1961).

Other facets of the claimed property right to discrim­
inate on the basis of race in these circumstances are clearly 
separable from the core of Kress’s interest in its business. 
In addition to the fact that no privacy has been intruded 
upon, the asserted property right did not seek to protect 
the premises from use alien to their intended function. 
Petitioners sought only to purchase and consume food in 
an area provided for such activity. The asserted right to 
exclude expressed only a preference for racial segregation 
and not any objection to petitioners’ demeanor or conduct. 
And this was not a private choice. It expressed community 
custom. The capricious nature of the discrimination was 
highlighted by the fact that this same store served Negroes 
and whites alike in fifteen to twenty departments selling 
over 10,000 items with the sole exception that Negroes are 
not served at the lunch counter which is reserved for 
whites (R. 14, 20-22). As in Shelley v. Kraemer, 334 U. S. 1, 
10, the restriction did not limit the type of use made of the 
premises, nor the type of person or conduct permitted 
thereon except to refer to race.

Moreover, the property interest enforced below attempted 
only to achieve discrimination in a store thrown open by 
the owner to the general public (including Negroes) for his 
own business advantage. Cf. Marsh v. Alabama, 326 U. S. 
501, 506. The specific area within the store in dispute, 
i.e., the lunch counter, was a public part of the premises 
and an integral part of a single commercial establishment 
serving the public.

Consequently, the property interest enforced below is 
simply a claimed right to enforce racial discrimination in 
very particular circumstances. It obviously is not true that 
refusal to enforce this asserted incident of ownership de-



38

stroys the whole bundle of rights. That result would be 
contrary to the entire genius of our jurisprudence.

The premise that Kress owns the property does not lead 
to the ultimate logical extreme that it may absolutely 
control the conduct and associations of others in the store.

Mr. Justice Holmes has written that “All rights tend 
to declare themselves absolute to their logical extreme, yet 
in fact are limited by the neighborhood of principles of 
policy which are other than those on which the particular 
right is founded and which become strong enough to hold 
their own when a certain point is reached.” Hudson Cty. 
Water Co. v. McCarter, 209 U. S. 345, 355. Only last term, 
Mr. Justice Frankfurter, dissenting, pointed out the in­
dubitable truth that “An end of discrimination against the 
Negro was the compelling motive of the Civil War Amend­
ments. The Fifteenth expresses this in terms and it is no 
less true of the Equal Protection Clause of the Fourteenth”. 
Baker v. Carr, 369 U. S. 186, 285-86. In the case at bar 
Kress’s property is limited by the Fourteenth Amendment 
and does not reach the constitutionally untenable logical 
extreme that the states may aid the store in upholding 
racism. “The Constitution confers upon no individual the 
right to demand action by the State which results in the 
denial of equal protection of the laws to other individuals.” 
Shelley v. Kraemer, 334 U. S. 1, 22.

F. In Any Event the Convictions Below Must Fall When, 
in Addition to the Foregoing, South Carolina Has 
Failed to Protect Negro Citizens in the Right to Equal 
Access to Public Accommodations.

Here, however, we have more than the elements set 
forth above—State arrest, conviction and prison term; 
implementation of a community custom of racial segrega­
tion generated by state law; enforcement of an odious 
property right of minor consequence to the owner; elab-



39

orate state initiative and involvement in establishment and 
maintenance of the enterprise. Here the State has failed 
to provide what the Civil Rights Cases assumed the States 
did provide: “a right to enjoy equal accommodation and 
privileges,” which this Court termed “one of the essential 
rights of the citizen which no state can interfere -with.” 
109 U. S. at 19.

This Court has recognized that States’ failure or re­
fusal to act can deny the equal protection of the laws. 
Burton v. Wilmington Parking Authority, 365 U. S. 715, 
725; Terry v. Adams, 345 U. S. 461, 469; Truax v. Cor­
rigan, 257 U. S. 312; see, Lynch v. United States, 189 F. 2d 
476 (5th Cir. 1951); Catlette v. United States, 132 F. 2d 
902 (4th Cir. 1943).

Indeed, it is questionable whether the verbal concept 
of “state action” in equal protection cases rests on more 
than a misunderstanding,53 for the phrase, no state shall 
deny equal protection, refers even more naturally to state 
inaction than to state action.

Mr. Justice Woods, a member of the majority in the 
Civil Rights Cases, stated in United States v. Hall, 26 Fed. 
Cas. 79, 81 (No. 15,282 1871):

Denying includes inaction as well as action, and deny­
ing the equal protection of the laws includes the omis­
sion to protect, as well as the omission to pass laws 
for protection.

His concurrence with the majority in the Civil Rights Cases 
may, therefore, be explained by his agreement with their

53 See, generally Mr. Justice Harlan dissenting in C iv il B ig h ts  
Cases, 109 U. S. 3, 26-62.



40

assumption that remedies against the discrimination in 
those cases existed under state law.

This indeed was a view held by some of the legislators 
concerned with the scope of the Amendment at or around 
the time of its passage. For example, Representative 
Wilson of Indiana in debates on the Enforcement Act of 
April 20, 1871, 17 Stat. 13, argued that the states were 
under an obligation to assure equality and that failure to 
do so was a denial of equal protection:

1. The provisions ‘no State shall deny’ and ‘Congress 
shall have power to enforce’ mean that equal protec­
tion shall be provided for all persons.

2. That a failure to enact the proper laws for that pur­
pose, or a failure to enforce them, is a denial of equal 
protection. (Emphasis added.)

3. That when there is such a denial Congress may enact 
laws to secure equal protection.54

Representative Lawrence in debates on the Civil Rights 
Act of 1875 stated:

What the State permits by its sanction, having the 
power to prohibit, it does in effect itself.55

Senator Pool in debates on the Enforcement Act of 
May 31, 1870, 16 Stat. 140, argued that:

. . . but to say that it shall not deny to any person the 
equal protection of the law it seems to me opens up 
a different branch of the subject. It shall not deny by 
acts of omission by a failure to prevent its own citizens

54 Cong. Globe, 42nd Congress, 1st Sess., p. 483 (1871).
55 Cong. Rec., 43d Cong., 1st Sess. 412 (1874).



41

from depriving by force any of their fellow citizens 
of these rights.56 (Emphasis added.)

This view is endorsed by the opinion in the Civil Rights 
Cases, for that decision was based on the assumption that 
the states in question would provide remedies securing to 
their citizens the right of access to places of public ac­
commodation without racial discrimination:

We have discussed the question presented by the law 
on the assumption that a right to enjoy equal accomoda­
tions and privileges in all inns, public conveyances and 
places of public amusement, is one of the essential 
rights of the citizen which no state can abridge or in­
terfere with (109 U. S. at 19). (Emphasis added.)

*  *  *  *  #

Can the act of a mere individual, the owner of the inn, 
the public conveyance or place of amusement, refusing 
the accommodation, be justly regarded as imposing 
any badge of slavery or servitude upon the applicant, 
or only as inflicting an ordinary civil injury, properly 
cognizable by the laws of the State, and presumably 
subject to redress by those laws until the contrary 
appears? (109 U. S. at 24). (Emphasis added.)

56 Cong. Globe, 41st Cong., 2d Sess. 3611 (1870).
Other contemporary congressmen also suggested that state in­

action may be as culpable as action: In a speech delivered by Rep­
resentative Bingham of Ohio, the framer of the key phrases in 
Section One, it was repeatedly stated that the Fourteenth Amend­
ment granted Congress the power to act on individuals and could 
provide relief against the denial of rights by the states whether by 
“acts of omission or commission.” Appendix to the Cong. Globe, 
42d Congress, 1st Sess. 85. Representative Coburn of Indiana said 
that a state could deny equal protection by failing to punish in­
dividuals violating the rights of others. Cong. Globe, 42d Congress, 
1st Sess. 459.



42

Mr. Justice Bradley’s entire opinion was concerned with 
the question whether the Fourteenth Amendment had con­
ferred on Congress the power to regulate the acts of pri­
vate individuals when, as he presumed, the States were 
exercising their responsibilities toward the goal of eliminat­
ing racial discrimination. While he concluded in the nega­
tive, it is extremely doubtful that the result would have 
been the same if a state had been found to be in effect 
sanctioning private discrimination by laxity in this regard. 
See Konvitz & Leslies, A Century of Civil Rights 150 
(1961); Abernathy, Expansion of the State Action Con­
cept Under the Fourteenth Amendment, 43 Cornell L. Q. 
375, 376; Hale, Force and the State: A Comparison of 
“Political” and “Economic” Compulsion, 35 Colum. L. Rev. 
149, 184 (1935); Poliak, Racial Discrimination and Judicial 
Integrity: A Reply to Professor Weclisler, 108 U. Pa. L. 
Rev. 1, 21 (1959).

This case, therefore is like Burton v. Wilmington Park­
ing Authority, 365 U. S. 715, 725:

[T]he Authority could have affirmatively required 
Eagle to discharge the responsibilities under the Four­
teenth Amendment imposed upon the private enter­
prise as a consequence of state participation. But no 
State may effectively abdicate its responsibilities by 
either ignoring them or by merely failing to discharge 
them whatever the motive may be. . . . By its inaction 
. . . the State . . . has not only made itself a party to 
the refusal of service, but has elected to place its 
power, property and prestige behind the admitted dis­
crimination.

For here in an area in which the State is deeply involved 
it has positively and negatively sanctioned the racial segre­
gation which gave rise to this case.



43

n.
The Decision Below Conflicts With Decisions of This 

Court Securing the Right of Freedom of Expression 
Under the Fourteenth Amendment to the Constitution 
of the United States.

A. The Enforcement of the State and City Segregation 
Policy and the Interference of the Police Violated 
Petitioners’ Right to Freedom of Expression.

Petitioners were engaged in the exercise of free ex­
pression, by verbal and nonverbal requests to the manage­
ment for service, and nonverbal requests for nondiscrimina- 
tory lunch counter service, implicit in their continued 
remaining in the dining area when refused service. As Mr. 
Justice Harlan wrote in Garner v. Louisiana: “We would 
surely have to be blind not to recognize that petitioners 
were sitting at these counters, when they knew they would 
not be served, in order to demonstrate that their race was 
being segregated in dining facilities in this part of the 
country.” 368 U. S. at 201. Petitioners’ expression 
(asking for service) was entirely appropriate to the time 
and place at which it occurred. They did not shout or 
obstruct the conduct of business. There were no speeches, 
picket signs, handbills or other forms of expression in the 
store possibly inappropriate to the time and place. Rather 
they offered to purchase in a place and at a time set aside 
for such transactions. Their protest demonstration was a 
part of the “free trade in ideas,” Abrams v. United States, 
250 U. S. 616, 630, Holmes, J dissenting, within the range 
of liberties protected by the Fourteenth Amendment, even 
though nonverbal. Stromberg v. California, 283 U. S. 359 
(display of red flag); Thornhill v. Alabama, 310 U. S. 88 
(picketing); West Virginia' State Board of Education v.



44

Barnette, 319 U. S. 624, 633-634 (flag salute); N.A.A.C.P. 
v. Alabama, 357 U. S. 449 (freedom of association).

Questions concerning freedom of expression are not re­
solved merely by reference to the fact that private property 
is involved. The Fourteenth Amendment right to free ex­
pression on private property takes contour from the cir­
cumstances, in part determined by the owner’s privacy, 
his use and arrangement of his property. In Breard v. 
Alexandria, 341 U. S. 622, 644 the Court balanced the “house­
holders’ desire for privacy and the publisher’s right to 
distribute publications” in the particular manner involved, 
upholding a law limiting the publisher’s right to solicit on 
a door-to-door basis. But cf. Martin v. Struthers, 319 U. S. 
141, where different kinds of interests led to a correspond­
ing difference in result. Moreover, the manner of asser­
tion and the action of the State, through its officers, its 
customs and its creation of the property interest are to be 
taken into account.

In this constitutional context it is crucial, therefore, 
that the stores implicitly consented to the protest and did 
not seek intervention of the criminal law. For this case 
is like Garner v. Louisiana, supra, where Mr. Justice Har­
lan, concurring, found a protected area of free expression 
on private property on facts regarded as involving “the 
implied consent of the management” for the sit-in demon­
strators to remain on the property. Petitioners informed 
the management that there would be a protest and received 
assurance that the management would not resort to the 
criminal process. Petitioners were not asked to leave the 
counter until the police arrived and the manager talked 
with the police. Petitioners were not permitted, at the 
trial, to inquire if the request to leave was arranged by the 
police (R. 22, 23). It does not appear that anyone connected 
with the store signed an affidavit or complaint against



45

petitioners. The police officer proceeded immediately to 
arrest the petitioners without any request to do so on 
the part of anyone connected with the store.

In such circumstances, petitioners’ arrest must be seen 
as state interference in a dispute over segregation at this 
lunch counter, a dispute being resolved by persuasion and 
pressure in a context of economic and social struggle be­
tween contending private interests. The Court has ruled 
that judicial sanctions may not be interposed to discrim­
inate against a party to such a conflict. Thornhill v. Ala­
bama, supra; San Diego Bldg. Trades Council v. Garmon, 
349 U. S. 236.

But even to the extent that the store may have acquiesced 
in the police action a determination of free expression 
rights still requires considering the totality of circum­
stances respecting the owner’s use of the property and the 
specific interest which state judicial action supports. Marsh 
v. Alabama, 326 U. S. 501.

In Marsh, this Court reversed trespass convictions of 
Jehovah’s Witnesses who went upon the privately owned 
streets of a company town to proselytize, holding that the 
conviction violated the Fourteenth Amendment. In Re­
public Aviation Corp. v. N.L.R.B., 324 U. S. 793, the Court 
upheld a labor board ruling that lacking special circum­
stances employer regulations forbidding all union solicita­
tion on company property constituted unfair labor prac­
tices. See Thornhill v. Alabama, supra, involving picketing 
on company-owned property; see also N.L.R.B. v. American 
Pearl Button Co., 149 F. 2d 258 (8th Cir. 1945); United 
Steelworkers v. N.L.R.B., 243 F. 2d 593, 598 (D. C. Cir. 
1956), reversed on other grounds, 357 U. S. 357, and com­
pare the cases mentioned above with N.L.R.B. v. Fansteel 
Metal Corp., 306 U. S. 240, 252, condemning an employee



46

seizure of a plant. In People v. Barisi, 193 Misc. 934, 86 
N. Y. S. 2d 277, 279 (1948) the Court held that picketing 
within Pennsylvania Railroad Station was not a trespass; 
the owners opened it to the public and their property rights 
were “circumscribed by the constitutional rights of those 
who use it.” See also Freeman v. Retail Clerks Union, 
Washington Superior Court, 45 Lab. Rel. Ref. Man. 2334 
(1959); and State of Maryland v. Williams, Baltimore City 
Court, 44 Lab. Rel. Ref. Man. 2357, 2361 (1959).

In the circumstances of this case the only apparent state 
interest being subserved by these trespass prosecutions is 
support of the property owner’s discrimination, which the 
manager testified was caused by the State’s segregation 
custom and policy and the express terms of the City Ordi­
nance. This is the only “interest” that the property owner 
can be found to have asserted.

Where free expression rights are involved, the question 
for decision is whether the relevant expressions are “in 
such circumstances and . . .  of such a nature as to create 
a clear and present danger that will bring about the sub­
stantive evil” which the State has the right to prevent. 
Schenck v. United States, 249 U. S. 52. The only “sub­
stantive evil” sought to be prevented by these trespass 
prosecutions is the stifling of protest against the elimina­
tion of racial discrimination, but this is not an “evil” within 
the State’s power to suppress because the Fourteenth 
Amendment prohibits state support of racial discrimina­
tion. See Cooper v. Aaron, 358 U. S. 1; Terminiello v. 
Chicago, 337 U. S. 1; Sellers v. Johnson, 163 F. 2d 877 
(8th Cir. 1957), cert, denied 332 U. S. 851.



47

B. The Convictions Deny Petitioners’ Right to Freedom 
of Expression in That They Rest on a Statute Which 
Fails to Require Proof That Petitioners Were Re­
quested to Leave by a Person Who Had Established 
Authority to Issue Such Request at the Time Given.

In the courts below petitioners asserted that the statute 
in question denied due process of law secured by the Four­
teenth Amendment to the Constitution of the United States 
in that it did not require that the person requesting them 
to leave the lunch counter establish his authority to make 
the demand. Although this issue was pressed below, the 
Supreme Court of South Carolina failed to construe the 
statute to require proof that the person who requested 
them to leave establish his authority.

If in the circumstances of this case free speech is to be 
curtailed, the least one has a right to expect is reasonable 
notice in the statute under which convictions are obtained, 
to that effect. Winters v. New York, 333 U. S. 507. Here, 
absent a statutory provision that the person making the 
request to leave be required to communicate that authority 
to the person asked to leave, petitioners, in effect, have 
been convicted of crime for refusing to cease their pro­
tests at the request of a person who could have been a 
stranger. The stifling effect of such a rule on free speech 
is obvious. See Wieman v. Updegraff, 344 U. S. 183; Smith 
v. California, 361 U. S. 147.

The vice of lack of fair notice was compounded where, 
as here, petitioners were convicted under a statute which 
designated two separate crimes, see supra p. 2, and a 
warrant which failed to specify under which section the 
prosecution proceeded (E. 5, 2, 3). Moreover, the warrant 
and the trial court stated that petitioners were charged with 
“trespass after warning” (R. 2) (Section (1) of the Stat­
ute speaks of being “warned” ; Section (2) “without having



48

been warned”), but the prosecution offered no proof that 
petitioners had been “warned” within six months as re­
quired by Section (1) and apparently proceeded on the 
theory that Section (2) of the statute was involved.

This record is barren of any attempt by the City of 
Greenville to prove that the person who requested peti­
tioners to leave identified his authority to do so to petition­
ers, and the courts of South Carolina, although urged by 
petitioners, failed to require such proof. While one of the 
petitioners brought out, when questioned by her own coun­
sel, that she had spoken to the manager previously,57 there 
is no evidence that the other petitioners knew the authority 
of the person who gave the order to leave. With rights 
to freedom of expression at stake, the City should be re­
quired to provide clear and unambiguous proof of all the 
elements of the crime. Identification of authority to make 
the request to leave is all the more important because of 
the active role played by the police in this case, for if the 
police were enforcing segregation clearly petitioners had 
a right to remain at the counter. Garner v. Louisiana, 
supra.

No one ordinarily may be expected to assume that one 
who tells him to leave a public place, into which the pro­
prietor invited him and in which he has traded, is authorized 
to utter an order to leave when no claim of such authority 
is made. This is especially true in the case of a Negro seat­
ing himself in a white dining area in Greenville, South 
Carolina—obviously a matter of controversy and one which 
any stranger, or the police of a city with a segregation 
ordinance, might be expected to volunteer strong views. If 
the statute in question is interpreted to mean that one must 
leave a public place under penalty of being held a criminal

57 She also testified that the police, not the manager, gave the 
order for petitioners to leave (R. 37, 41).



49

when so ordered to do so by a person who later turns 
out to have been in authority without a claim of authority 
at the time, it means as a practical matter, that one must 
depart from public places whenever told to do so by any­
one; the alternative is to risk tine or imprisonment. Such 
a rule might be held a denial of due process. Cf. Lambert v. 
California, 335 U. S. 225. But if such is the rule the statute 
gives no fair warning, Winters v. New York, supra; Burstyn 
v. Wilson, 343 U. S. 495; Saia v. New York, 334 U. S. 558; 
Cliaplinsky v. New Hampshire, 315 U. S. 568. Absent such 
notice, petitioners surely were entitled to assume that one 
may go about a public place under necessity to observe 
orders only from those who claim with some definiteness 
the right to give them.

Indeed, as a matter of due process of law, if it is the 
rule one must obey all orders of strangers to leave public 
places under penalty of criminal conviction if one uttering 
the order later turns out to have had authority, petitioners 
are entitled to more warning of its harshness than the stat­
ute’s text affirmed. Cf. Connally v. General Construction 
Co., 269 U. S. 385; Lametta  v. New Jersey, 306 U. S. 451. 
Otherwise many persons—like these petitioners—may be 
held guilty of crime without having intended to do wrong. 
This Court has said, however, th a t:

The contention that an injury can amount to a crime 
only when inflicted by intention is no provincial or 
transient notion. It is as universal and persistent in 
mature systems of law as belief in freedom of the 
human will and a consequent ability and duty of the 
normal individual to choose between good and evil. 
Morrissette v. U. S., 342 U. S. 246, 250.



50

Morrissette, of course, involved a federal statute as treated 
in the federal courts. But it expresses the fundamental view 
that scienter ought generally to be an element in criminality. 
See Sayre, Public Welfare Offenses, 33 Columbia L. Rev. 
55, 55-6 (1933). The pervasive character of scienter as an 
element of crime makes it clear that a general statute like 
the ordinance now in question, in failing to lay down a 
scienter requirement, gives no adequate warning of an 
absolute liability. Trespass statutes like the one at bar 
are quite different from “public welfare statutes” in which 
an absolute liability rule is not unusual. See Morrissette 
v. United States, supra, 342 U. S. at 252-260.

On the other hand, however, if South Carolina were to 
read a scienter provision into this ordinance for the first 
time—which it has failed to do although the issue was 
squarely presented in this case—the lack of the necessary 
element of guilt, notice of authority, would require reversal 
under authority of Garner v. Louisiana, supra; Thompson 
v. City of Louisville, 362 U. S. 199.



51

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgm ents below should be reversed.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
J ames M. N abrit, I II  
Michael Meltsner

10 Columbus Circle 
New York 19, N. Y.

Matthew J. P erry 
L incoln C. J enk in s , J r.

Columbia, South Carolina

W illie T. S mith

Greenville, South Carolina

Attorneys for Petitioners

Leroy Clark 
W illiam T. Coleman, J r.
W illiam R. Ming , J r.
Louis H. P ollak 

Of Counsel





f



38



Supreme Court of the United States
OCTOBER TERM, 1961

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT and ROSE MA­
RIE COLLINS, P etitioners,

versus

CITY OF GREENVILLE, R espondent

BRIEF OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

THOMAS A. WOFFORD, 
THEODORE A. SNYDER, JR., 

200 Masonic Temple, 
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.

Th« R. L. Bryan C o m p a n y ,  L e g a l  P r i n t e r s .  C o l u m b i a .  S .  C .



■



INDEX
P age

Jurisdiction .....................................................................................  1

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

Constitutional and Statutory Provisions Involved___ 2

Respondent’s Statement of the Case ............................  3

Argument:
I. The petitioners were not deprived of the due

process of law and equal protection of the laws se­
cured to them by the Fourteenth Amendment in 
their trial and conviction for tresp ass ..................... 4

II. The decision of the Supreme Court of South
Carolina is in accord with the decisions of this 
Court securing the right of freedom of speech under 
the Fourteenth Amendment..................................... 14

A. The conviction of petitioners of tres­
pass after their refusal to move from a lunch 
counter in a private store did not interfere with 
their right of freedom of speech ...................... 14

B. The petitioners were not denied free­
dom of speech in being convicted under a tres­
pass statute which does not expressly require 
proof that the person ordering them to leave 
establish his authority at the time of making 
the req u est..........................................................  17

Conclusion .........................................................................  20

( i )



■

■



P age

Beauharnais v. Illinois, 343 U. S. 250 ............................  15
Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 100

So. 240 ......... .................................................................  12
Boynton v. Virginia, 364 U. S. 454 ................................ 9
Breard v. Alexandria, 341 U. S. 622 ..............................  16
Civil Rights Cases, 109 U. S. 3 .......................................  8
Commonwealth v. Richardson, 313 Mass. 632, 48 N. E. 

(2d) 678 .............................. .......................................... 16
Fiske v. Kansas, 274 U. S. 380 ..............- .......................  14
Garner v. Louisiana, 368 U. S. 157, 164 and Footnote 11 4 
Gibonev v. Empire Storage & Ice Co., 336 U. S. 490 .. 17
Gitlowv. New York, 268 U. S. 652 ..................................  14
Griffin v. Collins, 187 F. Supp. 149 (Md.) ..................... 13
Grimke v. Brandon, 1 Nott & McCord 356 (10 S. C. Law) 9 
Gross v. Rice, 71 Maine 241 ...........................................  8
Hague v. C. I. O., 307 U. S. 496 .....................................  15
Hall v. Commonwealth, 188 Ya. 72, 49 S. E. (2d) 369, 

App. Dismissed, 335 U. S. 875, Reh. Den., 335 U. S.
912 .............................................................................13, 15

Henderson v. Trailways Bus Company, 194 F. Supp.
423 (E. D. Va.) .............................................................. 13

Lyles v. Fellers, 138 S. C. 31, 136 S. E. 1 8 ..................... 9
Marsh v. Alabama, 326 U. S. 501 .................................... 15
Martin v. Eity of Struthers, 319 U. S. 14 1 ......... 13, 14, 16
Meyers v. Anderson, 238 U. S. 368 ................................ 8
Saia v. New York, 334 U. S. 558 .................................... 15
Schneider v. State, 308 U. S. 1 47 .................................... 15
Shelley v. Kraemer, 334 U. S. 1 .................................... 8
Shramek v. Walker, 152 S. C. 88, 149 S. E. 331.............  10
Slack v. Atlantic White Tower System, Inc., 181 F.

Supp. 124 (Md.) ............................................................ 7
State v. Bodie, 33 S. C. 117, 11 S. E. 624 ......................  10
State v. Bradley, 126 S. C. 528, 120 S. E. 248 .. .10, 11, 12 
State v. Brooks, 79 S. C. 144, 60 S. E. 518 ..................... 10

( m )

TABLE OF CASES



TABLE OF CASES—Continued
P age

State v. Clyburn, 247 N. C. 455, 101 S. E. (2d) 295 . . . .  6
State v. Hallback, 40 S. C. 298, 18 S. E. 919 .................  18
State v. Lightsey, 43 S. C. 114, 20 S. E. 975 ........10,11, 12
State v. Tenney, 58 S. C. 215, 36 S. E. 555 ..................... 18
State v. Williams, 76 S. C. 135, 56 S. E. 783 .................  10
Sumner v. Beeler, 50 Ind. 341 .......................................  8
Teamsters Union v. Hanke, 339 U. S. 470 ..................... 17
Terminal Taxicab Co. v. Kutz, 241 U. S. 252, 256 .........  7
Thornhill v. Alabama, 310 U. S. 8 8 ............................ 15, 16
Tucker v. Texas, 326 U. S. 5 17 .......................................  15
Watchtower Bible & Tract Society v. Metropolitan Life

Insurance Co., 279 N. Y. 339, 79 N. E. (2d) 433 .........  15
Williams v. Howard Johnson’s Restaurant, 268 F. (2d)

845 (4th Cir.) ................................................................ 7

STATUTES AND CONSTITUTIONAL PROVISIONS
Act No. 743, 1960 South Carolina General Assembly,

R 896, H 2135..............................................................3, 11
Civil Rights Act of 1875 ................................................... 8
Code of City of Greenville, 1953, as Amended, Section

31-8 ................................................................................  8
Constitution of the United States, Amendment I ............. 2

14, 17, 20
South Carolina Code of Laws, 1952, Section 16-382 . . . .  11
South Carolina Code of Laws, 1952, Section 16-386 ----  11
South Carolina Code of Laws, 1952, Section 16-388 ----  20
United States Code, Title 28, Section 1257(3) .............  1
United States Code, Title 42, Section 1983 ................... 7

OTHER AUTHORITIES
Annotation, 1 A. L. R. 1165 ...........................................  6
Annotation, 9 A. L. R. 379 ............................................... 12



Supreme Court of the United States
OCTOBER TERM, 1961

No. 750

JAMES RICHARD P E T E R S O N ,  YVONNE JOAN 
EDDY, HELEN ANGELA EVANS, DAVID RALPH 
STRAWDER, HAROLD JAMES FOWLER, FRANK
G. SMITH, ROBERT CROCKETT, JAMES CAR­
TER, DORIS DELORES WRIGHT and ROSE MA­
RIE COLLINS, P etitioners,

versus

CITY OF GREENVILLE, R espondent

BRIEF OF THE RESPONDENT, CITY OF GREEN­
VILLE, IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI

JURISDICTION
The petitioners invoke the jurisdiction of the Supreme 

Court of the United States pursuant to Title 28 U. S. Code, 
Section 1257 (3), upon the ground of deprivation of rights, 
privileges and immunities claimed by them under the Con­
stitution of the United States. The respondent, City of 
Greenville, objects to the jurisdiction of this Court on the 
ground that no substantial Federal question was presented 
at any stage of the proceedings below and upon the ground 
that the issues below involved property rights only and 
the petitioners were not deprived of any rights, privileges 
or immunities secured by the Constitution of the United 
States.



QUESTIONS PRESENTED
The respondent, City of Greenville, denies that the 

petitioners have been deprived of any rights secured to 
them by the United States Constitution. However, for the 
purpose of argument, the respondent will assume that the 
questions to be considered are those presented by the peti­
tioners as modified below.

The respondent, subject to its reservations, submits 
that the questions presented are as follows:

Whether Negro petitioners were denied due process of 
law and equal protection of the laws as secured by the 
Fourteenth Amendment to the Constitution of the United 
States:

1. When arrested and convicted of trespass for refus­
ing to leave a department store lunch counter after demand 
was made for them to depart by the manager of the store.

2. Whether petitioners, as “sit-in” demonstrators, were 
denied their First Amendment freedom of speech right as 
secured by the Fourteenth Amendment when (a) convicted 
of trespass upon refusal to move from a lunch counter 
which was reserved for the use of white persons and (b) 
when the convictions rest on a statute which does not spe­
cifically require proof that petitioners were requested to 
leave by a person who had established his authority to issue 
such request at the time of making the request.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

In addition to the Constitutional and statutory pro­
visions cited by the petitioners on page 3 of the Petition 
this case involves the First Amendment to the Constitution 
of the United States.

2 Peterson et al., Petitioners, v . City of Greenville, Respondent



RESPONDENT’S STATEMENT OF THE CASE
The petitioners were each tried and convicted in the 

Recorder’s Court of the City of Greenville, South Carolina. 
They were charged with violating Act No. 743 of the 1960 
South Carolina General Assembly, R 896, H 2135, now 
Section 16-388, Code of Laws of South Carolina, 1952. The 
statute, in pertinent part, provides that: “Any person: 
* * * (2) who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not to do 
so, and fails and refuses without good cause or excuse, to 
leave immediately upon being ordered or requested to do 
so by the person in possession or his agent or represen­
tative, shall, on conviction, be fined not more than one 
hundred dollars, or be imprisoned for not more than thirty 
days.” This Act was approved by the Governor on the 16th 
day of May, 1960 and took effect 30 days later, or the 15th 
day of June, 1960. On August 9, 1960 at approximately 
11:00 A. M. the petitioners entered the S. H. Kress & Com­
pany department store in the City of Greenville and took 
seats at the lunch counter in that store (R. 5). Only one 
of the petitioners testified as to placing any order for serv­
ice (R. 41). Four of the petitioners had no money at all 
in their possession (R. 7, 8) and the one who did place 
an order refused to state that any of the others had placed 
an order (R. 46). It is apparent that the real purpose of 
the petitioners in being in the Kress store was to put pres­
sure on the manager by way of a demonstration (R. 43). 
One of the Petitioners testified that tills was only one of 
several demonstrations in the same store and lunch counter 
(R. 44). There is no evidence that any of the petitioners 
had previously been served at this particular lunch counter 
on any occasion. The only reasonable inference is that on 
the occasion of the prior demonstrations service had been 
refused them.

Peterson et al., Petitioners, v . City of Greenville, Respondent 3



On the date of the commission of the offenses herein 
complained of the petitioners seated themselves at a lunch 
counter which had space for fifty-nine persons. The peti­
tioners were advised that Negroes were not served at that 
counter (R. 41). The lights were extinguished and G. W. 
West, the manager of the store, requested that everyone 
leave (R. 19). All the white people who had been present 
left pursuant to this request, leaving behind the petitioners 
herein (R. 20). The petitioners did not leave and after a 
wait of approximately five minutes (R. 20), they were ar­
rested and charged with violation of the trespass after 
notice statute which has been referred to. Their convictions 
subsequently were reviewed by the Supreme Court of South 
Carolina and from the decision of that Court sustaining 
the convictions, they petition this Court for a W rit of 
Certiorari.

ARGUMENT
I

The Petitioners were not deprived of the due process 
of law and equal protection of the laws secured to them by 
the Fourteenth Amendment in their trial and conviction 
for trespass.

The real issue in this case is whether or not a land- 
owner has a right by virtue of his property ownership to 
say who may and who may not come upon or remain upon 
his premises. We reach the question left open in Garner v. 
Louisiana-, 368 U. S. 157, 164 and footnote 11, the question 
“whether or not a private property owner and proprietor 
of a private establishment has the right to serve only those 
whom he chooses and to refuse to serve those whom he 
desires not to serve for whatever reason he may deter­
mine.”

The S. H. Kress & Company operates a variety or 
junior department store in the City of Greenville. In the

4 Peterson et al., Petitioners, v. City op Greenville, Respondent



building housing the store there have been set up some fif­
teen to twenty departments, including a lunch counter. 
In these departments are sold approximately ten thousand 
items (R. 21, 22). The decision as to what items are to be 
offered for sale is the result of a business judgment, made 
by a trained and experienced management. These decisions 
are made with the calculated business purpose in view of 
earning a profit. Some items sold are offered because there 
is an existing demand for them. As to other items the man­
agement seeks to create a demand by display and advertis­
ing. It has no monopoly and no one is required to buy any­
thing from it. Nor is S. H. Kress & Company a public util­
ity. It was not required to obtain a certificate of public 
convenience before opening the doors of its store in Green­
ville. It requires the consent of no one if it desires to close 
its doors and move away. The only license it is dependent 
upon is the continued good will of the buying public. No 
one can complain if its clerks are obnoxious, or if it refuses 
to sell certain items or insists on selling certain others.

Likewise, a private business such as the S. H. Kress 
& Company may regulate its opening and closing hours for 
daily business. Whether as lessee or as owner in fee simple, 
the private proprietor has the right to exclude everyone 
when the store is closed. His dominion over the premises 
is absolute.

Thus it will be seen that the proprietor has two rights 
in the situation presented in the case at bar. He has the 
right to do business with whom he pleases, and he has the 
right to control and possession of the premises whereon he 
conducts his business.

The right to select business clients.
The necessary parties to any private business selling 

transaction are a willing buyer and a willing seller. If one 
of the parties is unwilling, no measure of willingness on

Peterson et al., Petitioners, v . City of Greenville, Respondent 5



6 Peterson et al., Petitioners, v . City of Greenville, Respondent

the other side can make up the deficiency and force the 
sale. No law compels either party to go through with the 
transaction. The general rule of the common law, which is 
in effect in South Carolina, is that properietors of private 
enterprises are under no obligation to serve without dis­
crimination all who seek service, but on the contrary enjoy 
an absolute power to serve whom they please. This was 
expressly held below to be the law of South Carolina, there 
being no statute to the contrary. (Petitioners’ appendix, 
9a.) The right of a proprietor, other than an innkeeper or 
common carrier, to do business with whom he pleases, and 
to refuse to do business with others, for any reason, or 
for no reason at all, has been consistently and uniformly 
held by the courts of this country, in the absence of legisla­
tion to the contrary. Annotation, 1 A. L. R. (2d) 1165. 
The refusal of a proprietor to do business with any prospec­
tive customer can be based on the rankest of discrimination, 
either of race, color or creed, or on some whim unreason­
able or even fanciful. As was said in State v. Clyburn, 
247 N. C. 455, 101 S. E. (2d) 295:

“The right of an operator of a private enterprise 
to select the clientile he Avill serve and to make such 
selection based on color, if he so desires, has been re­
peatedly recognized by the appellate courts of this na­
tion. Madden v. Queens County Jockey Club, 269 N. Y. 
249, 72 N. E. (2d) 697, 1 A. L. R. (2d) 1160; Terrell 
Wells Swimming Pool v. Rodriguez, Tex. Civ. App. 
182 S. W. (2d) 824; Booker v. Grand Rapids Medical 
College, 156 Mich. 95, 120 N. W. 589, 24 L. R. A., NS 
447: Younger v. Judah, 111 Mo. 303, 19 S. W. 1109, 
16 L. R. A. 558; Goff v. Savage, 122 Wash 194, 210 
P. 374; DeLaYsla v. Publix Theatres Corporation, 82 
Utah 598, 26 P. (2d) 818; Brown v. Meyer Sanitary 
Milk Co., 150 Kan. 931, 96 P. (2d) 651; Horn v. Illinois 
Cent. R. Co., 327 111. App. 498, 64 N. E. (2d) 574; Cole­
man v. Middlestaff, 147 Cal. App. (2d) Supp. 833, 305 
P. (2d) 1020; Fletcher v. Coney Island, 100 Ohio App.



259, 136 N. E. (2d) 344; Alpaugh v. Wolverton, 184 
Va. 943, 36 S. E. (2d) 906.”
Mr. Justice Holmes recognized the principle in Ter­

minal Taxicab Co. v. Kutz, 241 U. S. 252, 256, where he 
said:

“It is true that all business, and for the matter of 
that, every life in all its details, has a public aspect, 
some bearing on the welfare of the community in which 
it is passed. But, however it may have been in earlier 
days as to the common callings, it is assumed in our 
time that an invitation to the public to buy does not 
necessarily entail an obligation to sell. It is assumed 
that an ordinary shopkeeper may refuse his wares arbi­
trarily to a customer whom he dislikes * *
The refusal of a restaurateur to serve a prospective 

patron because of his color has been held in several recent 
decisions to deprive a Negro of none of the rights, privi­
leges or immunities secured to a citizen by the Constitution 
of the United States, and protected from the infringement 
by the Civil Rights Act, Title 42, United States Code, Sec­
tion 1983. Williams v. Howard Johnson’s Restaurant, 268 
F. (2d) 845 (4th C ir.); Slack v. Atlantic White Tower 
System, Inc., 181 F. Supp. 124 (D. C. Md.), affd., 284 F. 
(2d) 746 (4th Cir.). In the Williams v. Howard Johnson’s 
case the Fourth Circuit Court held there was a distinction 
between activities that are required by the state and those 
which are carried out by voluntary choice and without com­
pulsion by the people of a state in accordance with their 
own desires and social practices. The latter, it was held, 
deprived no one of any civil rights. That permissible area 
of voluntary selection of customers is what is presented by 
the facts of the instant case. The manager of the store tes­
tified that the practice of serving only white persons was 
in conformity with a policy of the company to follow local 
customs. The policy was made at the company’s head­

Peterson et a l, Petitioners, v .  City o f  Greenville, Respondent 7



quarters, and was obviously dictated by business reasons. 
(R. 22, 23, 25.)1

Since the manager of Kress’ store was acting for it 
enforcing its voluntarily imposed policy, he had an absolute 
right to refuse to serve the petitioners herein.

Indeed, in the Civil Rights Cases, 109 U. S. 3, this 
Court held unconstitutional the section of the Civil Rights 
Act of 1875 providing that all persons within the jurisdic­
tion of the United States should be entitled to the full and 
equal enjoyment of the accommodations, advantages, fa­
cilities, and privileges of inns, public conveyances, theaters 
and other places of public amusement, with penalty for one 
who denied same to a citizen. One of the vices in the statute 
was that it laid down rules for the conduct of individuals 
in society towards each other, and imposed sanctions for 
the enforcement of those rules, without referring in any 
manner to any supposed action of the state or its author­
ities. The person supposedly injured, it was said, would 
be left to his state remedy. And in the instant case, as we 
have stated, the common law is in effect and gives no right 
to the petitioners or anyone else to be served without the 
consent of the restaurateur or proprietor of a business.

The Court has continued to recognize that individuals 
have the right in their purely private day to day dealings 
to associate and discriminate as they see fit, for whatever 
reason is to their own minds satisfactory. The court spe­
cifically stated in Shelley v. Kraemer, 334 U. S. 1:

8 Peterson et al., Petitioners, v. City of Greenville, Respondent

'It is equally clear that the ordinance of the City of Greenville 
requiring segregation in eating places (R. 56, 57) had no bearing on 
the instant case. The validity of this ordinance has never been tested. 
It is clear, however, that if it is unconstitutional, any action taken 
pursuant to its mandate would be personal, and taken at the risk of 
personal liability on the part of the person so acting. G ro ss v . R ice , 
71 Maine 241; S u m n e r  v . B e e le r , 50 Ind. 341; M e y e rs  v . A n d erso n , 
238 U. S. 368. The police captain who made the arrests testified he did 
not have the ordinance in mind (R. 10); in fact he was of the opinion 
it had been superseded (R. 17), and was not then in effect.



“Since the decision of this Court in the Civil Rights 
cases, . . . the principle has become embedded in
our constitutional law that the action inhibited by the 
first section of the Fourteenth amendment is only such 
action as may fairly be said to be that of the States. 
That Amendment erects no shield against merely pri­
vate conduct, however discriminatory or wrongful.”
Similarly, in Boynton v. Virginia, 364 U. S. 454, this 

Court held that a bus station restaurant was required to 
serve all who sought service without discrimination, under 
the Interstate Commerce Act, where the restaurant was an 
integral part of a bus company’s interstate transportation 
service. The Court made this reservation:

“We are not holding that every time a bus stops 
at a wholly independent roadside restaurant the Inter­
state Commerce Act requires that restaurant service 
be supplied in harmony with the provisions of that act.”
The instant case falls squarely within the reservation. 

The S. H. Kress & Company in Greenville, South Carolina, 
provides only a local restaurant service. Its facilities are 
not connected to or with any business affected with a public 
interest. As a purely private business venture, it is and 
was legally entitled to refuse service to the petitioners 
herein.
The right to exclusive possession of business premises.

Ownership of real estate, whether a fee simple, a life 
estate, or a term for years is basically a right to its posses­
sion. From the right of possession follows the right of the 
owner to make whatever use of the premises that suits his 
fancy. Anyone who enters without his permission is a tres­
passer. The civil action for damages for trespass quare 
clausum fregit is founded on plaintiff’s possession, and it 
is for injury to that possession that damages are awarded. 
Grimke v. Brandon, 1 Nott & McCord 356 (10 S. C. Law ); 
Lyles v. Fellers, 138 S. C. 31, 136 S. E. 18.

Peterson et al., Petitioners, v. City of Greenville, Respondent 9



10 P eterson e t  a l . ,  P etitioners, v . City of Greenville, Respondent

It has always been the law that a person in possession 
is entitled to maintain that possession, even by force if 
necessary.

“A man who attempts to force himself into an­
other’s dwelling, or who, being in the dwelling by in­
vitation or license refuses to leave when the owner 
makes that demand, is a trespasser, and the law per­
mits the owner to use as much force, even to the taking 
of his life, as may be reasonably necessary to prevent 
the obtrusion or to accomplish the explusion.” State 
v. Bradley, 126 S. C. 528, 120 S. E. 248.
Of course, away from the dwelling, the right to kill 

in ejecting a trespasser does not exist. Still, it is the law 
of South Carolina that any person in the rightful pos­
session of land may approach any person wrongfully there­
on, and order him to leave or quit the land, and in the event 
of a refusal to do so, may use such force as may be neces­
sary to eject such trespasser. State v. Bodie, 33 S. C. 117,
11 S. E. 624; State v. Williams, 76 S. C. 135, 56 S. E. 783; 
Slirameh v. Walker, 152 S. C. 88, 149 S. E. 331. In ejecting 
such trespassers gentle force must be used, State v. Brooks, 
79 S. C. 144, 60 S. E. 518.

The policy of the law does not favor the use of force 
and firearms by persons in possession of land who seek 
to remove trespassers. The charge in State v. Lightsey, 43 
S. C. 114, 20 S. E. 975 expresses it thus:

“But I charge you a man has no right to take his 
gun and run a man off his place. That is simply taking 
the law into his own hands.”
As a substitute for the strong armed ejectment by the 

person in possession, the law of this state has for many 
years provided a calm judicial mode of ejectment, employ­
ing the more even temperaments of impartial law enforce­
ment officers and judges. Thus the law has provided for 
many years that malicious injury to real property should



be a misdemeanor. Code of Laws of South Carolina, 1952, 
Section 1G-382. Since 1S66 our State has made entry on 
lands of another after notice prohibiting such entry a mis­
demeanor. Code of Laws of South Carolina, 1952, Section 
16-386. It has never been suggested that these laws were 
intended other than for the protection and preservation of 
property rights. The opinions of our Court in South Caro­
lina have strongly intimated that a person in possession 
of property should not take the law in his own hands in 
removing trespassers, but on the contrary they are exhorted 
to seek the aid and protection of the courts, by prosecuting 
the trespasser for these misdemeanors. State v. Liglitsey, 
supra.

It may be objected that the statutory law of South 
Carolina until 1960 provided only for prosecutions for entry 
after notice. But the court in State v. Bradley, supra, indi­
cated otherwise. There, quoting State v. Liglitsey, supra, 
the court said that if a man warns another off his place, 
and that man comes on it, or refuses to leave, he is guilty 
of a crime, a misdemeanor, and for that misdemeanor he 
may be tried in court. The 1960 Act, under which petitioners 
were tried and convicted, adds nothing to the substance 
of the existing law. It merely clarifies and provides ex­
pressly for the misdemeanor of trespass by one who refuses 
to leave on being requested to do so. It made positive what 
the court had held in State v. Bradley, supra, was impliedly 
a part of the law prohibiting entry after notice.

With respect to country and farm lands, no one may 
enter them without permission. With respect to a store 
building, or business premises, the proprietor or operator 
expects and invites prospective customers to enter. This 
is a sort of permission which renders the original entry 
rightful and not a trespass. Business invitees are often 
spoken of as licensees, license being nothing more than a 
mere grant of permission. Ordinarily it is implied from

Peterson et ah, Petitioners, v. City of Greenville, Respondent 11



the opening of the doors of a business establishment. Such 
a license is always revocable, and when revoked the licensee 
becomes a trespasser if he does not immediately depart. 
In the annotation, 9 A. L. R. 379, it is put as follows:

“It seems to be well settled that although the gen­
eral public have an implied license to enter a retail 
store, the proprietor is at liberty to revoke this license 
at any time as to any individual, and to eject such in­
dividual from the store if he refuses to leave when 
requested to do so.”
In Brookside-Pratt Mining Co. v. Booth, 211 Ala. 268, 

100 So. 240, the Court held that the proprietor of a 
store would not be liable for damages for assault and bat­
tery in ejecting a prospective patron from his store, when 
he did not desire to transact business with the person, and 
he had notified him to leave but was met with a refusal to 
do so, after giving him a reasonable time in which to depart.

The petitioners in this case found themselves in the 
identical situation. The manager of the store revoked their 
license or privilege to be there, and directed them to leave. 
(R. 19, 20.) After five minutes had passed, the petitioners 
still had not moved, although other persons originally 
present had departed when requested to leave. (R. 20.) 
At the end of that interval, the S. H. Kress & Company 
had a right to remove the petitioners by force. It is not 
contended that the petitioners were not given a reasonable 
time in which to depart, and the finding of the courts below 
on that element of the offense is conclusive. But our law 
does not favor persons in possession of property taking 
the law into their hands to eject trespassers. State v. Brad­
ley, supra; State v. Lightsey, supra. The law made the 
conduct of the petitioners a misdemeanor. The law favors 
their removal by the forces of law and trial by the orderly 
processes of a court of justice.

12 Peterson et al., Petitioners, v . City of Greenville, Respondent



The only purpose of the law in this case is to protect 
the rights of the owners or those in lawful control of private 
property. It protects the right of the person in possession 
to forbid entrance to those he is unwilling to receive and 
to exclude them if, having entered, he sees fit to command 
them to leave. Hall v. Commonwealth, 188 Va. 72, 49 S.
E. (2d) 369, app. dismissed, 335 U. S. 875, Reh. den. 335 
U. S. 912. As Mr. Justice Black said in Martin v. City of 
Struthers, 319 U. S. 141:

“Traditionally the American law punishes persons 
who enter onto the property of another after having 
been warned by the owner to keep off.”

Of course, the police officers had a right and a duty to ar­
rest for the misdemeanor committed in their presence.

The petitioners contend that their arrest and trial by 
the city police and in the city court was state action which 
deprived them of Fourteenth Amendment rights. There is 
no inference that the law involved or the other trespass 
laws have been applied to Negroes as a class or to these 
petitioners to the exclusion of other offenders. Certainly 
they were not deprived of any rights in being removed 
from the Kress store, a place where they had no right to 
remain under the law, after being requested to leave. 
Granted the right of a proprietor to choose his customers 
and to eject trespassers, it can hardly be the law, as peti­
tioners contend, that the proprietor may use such force 
as he and his employees possess, but may not call on a 
peace officer to protect his rights. Griffin v. Collins, 187 F. 
Supp. 149 (D. C. Md.); Henderson v. Trailways Bus Com­
pany, 194 F. Supp. 423 (E. D. Va.). A right which cannot 
be protected and enforced through the judicial machinery 
is a non-existent right.

In this there is no conflict with any prior decisions of 
this Court. The cases cited by petitioners all involve state

Peterson et al., Petitioners, v. City of Greenville, Respondent 13



action on state owned or operated premises, state-furnished 
services, and common carriers. None of them involve purely 
private action taken in respect of property rights to private 
property. We submit that the only constitutional right in­
volved in this case is the right of a property owner to the 
free and untrammelled use of his premises in whatever 
manner he sees fit.

II
The decision of Supreme Court of South Carolina is in 

accord with the decision of this Court securing- the right of 
freedom of speech under the Fourteenth Amendment.

A. The conviction of petitioners of trespass after their 
refusal to move from a lunch counter in a private store did 
not interfere with their freedom of speech.

When the petitioners use the term “freedom of ex­
pression” we assume they have in mind freedom of speech, 
which is protected from abridgment by Congress by the 
First Amendment to the Constitution of the United States. 
Since 1925, the First Amendment freedom of speech has 
been regarded as an aspect of “liberty” which under the 
Fourteenth Amendment the States are prohibited from tak­
ing away without due process of law. Gitlow v. New York, 
268 U. S. 652; Fiske v. Kamos, 274 U. S. 380.

Freedom to expound one’s views and distribute infor­
mation to every citizen wherever he desires to receive it 
is clearly vital to the preservation of a free society. Martin 
v. Strutliers, 319 U. S. 141. This freedom gives the right to 
the person who would speak to try and convince others of 
the correctness of his ideas and opinions. The title to streets 
and parks has immemorially been held in trust for the use 
of the public, and time out of mind have been used for 
purposes of assembly, communicating thoughts between 
citizens, and discussing public questions. The streets are 
natural and proper places for the dissemination of infor­

14 Peterson et al., Petitioners, v . City of Greenville, Respondent



mation and opinion. Schneider v. State, 308 U. S. 147; 
Hague v. C. I. 0., 307 U. S. 496; Thornhill v. Alabama, 310 
U. S. 88. Even where the streets and parks are privately- 
owned, as in company towns, citizens have a right to go 
upon them to communicate information, unimpeded by tres­
pass statutes. Marsh v. Alabama, 326 U. S. 501; Tucker 
v. Texas, 326 U. S. 517. Even freedom of speech on the 
public streets is subject to some control. Saia v. New York,
334 U. S. 558. In Beauharnais v. Illinois, 343 U. S. 250, this 
Court held that a person expressing his honest convictions 
on the streets could be prosecuted under a state group libel 
statute.

When we leave the streets, and consider the right to 
freedom of speech on private property, we find that the 
courts have unanimously held that the right of freedom 
of speech must yield to the property right of the landowner 
to eject trespassers. In Hall v. Commomvealth, 118 Va. 
72, 49 S. E. (2d) 369; app. dism. 335 U. S. 875; reh. den.
335 U. S. 912, the conviction of a member of a religious 
sect for trespass under a statute similar to the one here 
was upheld. The right of the individual to freedom of speech 
had to yield, it was held, to the property rights of the owner 
of an apartment building and its tenants. There was no 
right for anyone, over their objection, to insist on using 
the inner hallways to distribute their views and informa­
tion. The refusal of those persons to depart after being 
requested to do so, was held to justify their conviction for 
trespass. The court stated that inner hallways of apart­
ment houses were not to be regarded in the same light as 
public roads; they emphatically do not constitute places of 
public assembly, or for communicating thoughts one to 
another, or for the discussion of public questions. The First 
Amendment has never been held to inhibit action by indi­
viduals in respect to their property. Watchtower Bible & 
Tract Society v. Metropolitan Life Insurance Company,

Peterson et al., Petitioners, v. City of Greenville, Respondent 15



279 N. Y. 339, 79 N. E. (2d) 433; Commonwealth v. Richard- 
son, 313 Mass. 632, 48 N. E. (2d) 678. The petitioners in 
this case had the right to express their opinions on the 
streets. They had the privilege to enter the Kress store in 
Greenville. But, when they refused to leave on being re­
quested to do so, they no longer had a right to give vent 
to their thoughts on the premises of the Kress store. They 
cannot complaint of their conviction for trespass where 
they insisted on remaining in a place they had no right to 
be. They cannot be permitted to arm themselves with an 
acceptable principle, such as freedom of speech, and pro­
ceed to use it as an iron standard to smooth their path 
by crushing the rights of others to the possession of their 
property. Breard v. Alexandria, 341 U. S. 622.

The petitioners cite a number of labor relations and 
particularly picketing cases. Undoubtedly peaceful picket­
ing may be carried out on the public streets and sidewalks. 
Pieketers have the right to publicize their dispute under 
the First Amendment. What is protected in picketing is 
the liberty to discuss publicly and truthfully all matters of 
public concern. Thornhill v. Alabama, 310 U. S. 88. The 
important thing about picketing is that it is used to inform 
members of the public of the existing state of affairs. Its 
purpose is not to inform the employer; assumedly he knows 
of the dispute, and at least one side of the argument. In 
the instant case the petitioners were not attempting to pass 
on information to the public. They were attempting by 
demonstration and coercion to force a private person to 
make a use of his property not in accord with his desires. 
Here there was no gentle persuasion. Nor was the S. H. 
Kress & Company the proper object of their instruction. 
A private person cannot be forced, on his own property, 
to listen to the arguments of anyone, whether he agrees 
with the sentiments expressed or not. Martin v. Struthers, 
supra. Even the listener on the street can turn away. A

16 Petekson e t  al., Petitioners, v .  City of Greenville, Respondent



listener on his own land should not be required to retreat, 
he should be able to require the speaker to turn away, and 
prosecute him for trespass if he does not.

Peaceful picketing, even when conducted on the streets, 
is not absolutely protected by the First Amendment. Picket­
ing cannot be used in connection with a conspiracy to re­
strain trade, to prevent union drivers from crossing picket 
lines. Giboney v. Empire Storage & Ice Co., 336 U. S. 490. 
Nor is picketing lawful where it interferes with the free 
ingress and egress of customers into a place of business. 
Teamsters Union v. Hcunke, 339 U. S. 470. The conduct of 
the petitioners in this case, if it can be analogized to picket­
ing, was unlawful. They sought not to appeal to the reason 
of the public. They sought rather to obstruct the business 
of S. H. Kress & Company by squatting on its property and 
refusing to move. They sought to prevent its doing business 
with others unless it did business with them, by taking 
steps to effectively prevent the entrance of others. Their 
conduct clearly exceeded the bounds of freedom of speech 
and of peaceful picketing. They were properly arrested 
and convicted of trespassing.

B. The petitioners were not denied freedom of speech 
in being convicted under a trespass statute which does not 
expressly require proof that the person ordering them to 
leave establish his authority at the time of making the 
request.

The petitioners moved in the trial court for dismissal 
of the warrants on the ground they were indefinite and un­
certain. The facts of the case show otherwise. They were 
arrested in the act of committing the offense charged, they 
refused the manager’s request to leave after the lunch coun­
ter had been closed and the lights extinguished. There could 
have been no doubt in their minds as to what they were 
charged with. Warrants drawn such as the ones in the in­

Peterson et al., Petitioners, v. City of Greenville, Respondent 17



stant case have been passed on before and held sufficient. 
In State v. Rollback, 40 S. C. 28, 18 S. E. 919, the warrant 
was held sufficiently certain which alleged “that Jerry Hall- 
back did commit a trespass after notice.” Of like effect is 
State v. Termey, 58 S. C. 215, 36 S. E. 555. The petitioners’ 
attorneys realized they were being charged with trespass. 
(R. 2.) And from the warrant they had a citation to the 
law, with particulars as to the date, time and place of the 
arrest. And it is noteworthy of comment that the petitioners 
did not make a motion to make the charge more definite 
and certain, which they had a right to do.

The petitioners claim that the statute is unconstitu­
tional because it does not expressly require the landowner 
or person in possession to identify himself. The statute 
necessarily means that the person forbidding a person to 
remain in the premises of another shall be the person in 
possession, or his agent or representative, and that is an 
essential element of the offense to be proved by the State 
beyond a reasonable doubt. The manager of the store tes­
tified positively that he was the manager and that he re­
quested the petitioners to leave. (R. 19.) The only one of 
the petitioners to testify at the trial knew Mr. West was 
the manager as she had spoken to him over the telephone 
before (R. 43), and she recognized him at the store at 
the time of the demonstration (R. 42, 47).

If the person ordering them out had no such authority, 
that would be a defense, to be proved in Court. But here 
the evidence supports the inference that the petitioners 
knew that the person who ordered them to leave had au­
thority to do so. They did not question his authority. They 
did not so much as ask his name, so they could later inves­
tigate the extent of his authority. The petitioners knew 
they Avere not authorized and they could presume that any­
one A \dio undertook to exercise control over the premises 
was lawfully in control.

18 Peterson e t  al., Petitioners, v . City of Greenville, Respondent



The cases cited by petitioners are not relevant here at 
all. They require scienter in cases involving matters of 
opinion based' on value judgments. The authority of the 
person ordering them to leave the Si H. Kress Company 
store does not involve such a judgment. It cannot be con­
tended that petitioners should be entitled to spar with the 
person in possession requiring proof of authority to their 
satisfaction. Could they require a landowner to produce 
his deed, or a lessee his lease? Can they argue with him 
over the extent of his implied authority and all the nice 
technicalities of the law of agency? We submit that the 
authority of the person in possession is apparent from his 
direction to another to leave the premises, that he cannot 
be required to prove his authority to the satisfaction of 
the trespasser there or anywhere, except in a court when 
he is tried for the trespass. The petitioners never ques­
tioned the authority of the manager and his authority hav­
ing been proved in court beyond a reasonable doubt, they 
should not now be heard to complain.

Peterson et al., Petitioners, v. City of Greenville, Respondent 19



CONCLUSION
For the foregoing reasons the respondent submits that 

Section 16-388 of the Code of Laws of South Carolina, 1952, 
as applied to the petitioners, presents no question what­
ever in conflict with the Fourteenth and First Amendments 
to the Constitution of the United States, or the decisions 
of this Court, and that the petition for W rit of Certiorari 
in this case should be denied.

Respectfully submitted,
THOMAS A. WOFFORD,
THEODORE A. SNYDER, JR., 

200 Masonic Temple, 
Greenville, South Carolina,

W. H. ARNOLD,
City Attorney,

Lawyers Building, 
Greenville, South Carolina,

H. F. PARTEE,
Assistant City Attorney, 

Greenville, South Carolina, 
Attorneys for Respondent.

20 Peterson et al., Petitioners, v. City of Greenville, Respondent



i





TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 71

JAMES RICHARD PETERSON, ET AL„ 
PETITIONERS,

vs.

CITY OF GREENVILLE

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF SOUTH CAROLINA

PE T IT IO N  FO R C ER TIO R A R I FILED  FERRUARY 26 , 1962 

C ER T IO R A R I GRANTED JU N E 25 , 1962





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 71

JAMES RICHARD PETERSON, ET AL., 
PETITIONERS,

vs.
CITY OF GREENVILLE

ON WRIT OF CERTIORARI TO THE SUPREME COURT 
OF THE STATE OF SOUTH CAROLINA

I N D E X
Original P rint

Proceedings in the Supreme Court of the State of 
South Carolina
Transcript of record consisting of proceedings 

before the Recorder of Greenville City, South
Carolina and the Greenville County Court --------  A 1

S ta tem en t-------------------------------------------------------  1 1
Proceedings before the City Recorder------------------  2 2

Motion to quash information and dismiss war­
rant and denial thereof -------------------------- 2 3

Plea ____________________________________  3 4
Trial warrant-----------------------------------------------  3A 5
Transcript of evidence ------------------------------  4 6

Testimony of Captain G. 0 . Bramlette—
direct ---------------------  4 6
cross _______________ 8 10

G. W. W e st-
direct ________________  19 18
cross _______________   20 20

Motions to dismiss warrants and denial
thereof -------------------------------------------------- 28 26

R ecord P ress , P r in t e r s , N e w  Y o r k , N. Y ., A u gu st  1, 1962



11 I N D E X

Original Print
Proceedings in the Supreme Court of the State of 

South Carolina—Continued 
Proceedings before the City Recorder—Continued 

Transcript of evidence—Continued 
Testimony of Raymond H. Carter—

direct ______________ 31 28
cross _______________  35 31

Doris Wright—
direct ---------------------  40 36
c r o s s ----------------------- 44 38
redirect _______ ___  47 41

0. R. Hillyer—
direct ______________ 49 43
cross _______________  51 44

Renewal of motions and denial thereof------ 52 45
Sentence _______________________________  54 47
Testimony of M. B. Tolbert—

direct ______________ 56 48
Section 31-8, Code of Greenville, 1953, as

amended _________________ -r---------------- 56 49
Proceedings in the Greenville County Court ----  57 50

Order, Price, J. ---------------------------------------- 57 50
Notice of intention to appeal----------------------  61 53
Exceptions _______________________________  61 53
Agreement as to record------------------------------  63 55

Opinion, Taylor, C.J. --------------------------------------  64 55
Petition for rehearing--------------------------------------  68 59
Order denying petition for rehearing ___________ 72 62
Petition for stay of remittitur---------------------------  73 62
Order staying remittitur-----------------------------------  75 64
Clerk’s certificate (omitted in printing) -------------  77 65
Order allowing certiorari ---------------------------------  78 65



1

[fol. A]
IN THE SUPREME COURT OF THE 

STATE OF SOUTH CAROLINA

City of Greenville, Respondent, 
against

J ames R ichard P eterson, Y vonne J oan E ddy, H elen 
A ngela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins, 
Appellants.

A ppeal F rom Greenville County 

H onorable J ames H. P rice, S pecial County J udge

Transcript of Record

[fol. 1]
I n  the S upreme Court op S outh Carolina 

S tatement

The ten (10) appellants, all of whom are Negro high 
school students, were arrested on August 9, 1960, and 
charged with violating Act No. 743 (R896, H2135) Acts 
and Joint Resolutions of the General Assembly of South 
Carolina for 1960, Trespass after Notice.

Appellants were tried before Greenville City Recorder 
John Y. Jester of Greenville, South Carolina, without a 
jury on August 11, 1960. Evidence presented was that the 
appellants seated themselves at the lunch counter of S. H. 
Kress and Company in Greenville and were thereafter 
requested to leave by the Manager. S. H. Kress and Com­
pany does not serve Negroes at the lunch counter of its 
Greenville store although Negroes are welcome to do busi­
ness in all other departments thereof. Also, there is an



2

ordinance which prohibits Negroes and white persons from 
being served in the same restaurant at the same time. The 
management requested appellants to leave, it having been 
announced that the lunch counter was closed. The closing 
of the lunch counter was because of the presence of appel­
lants. Upon their refusal to leave, appellants were there­
upon arrested and charged with the offense of trespass 
after notice. At the conclusion of all of the evidence, Judge 
Jestep^ound each of the appellants “guilty” and sentenced 
eaoffbf them to pay fines of One Hundred ($100.00) Dol- 
lafs or serve thirty (30) days in prison.

Ndfme of Intention to Appeal was duly served upon the 
City Recorder.

Thereafter, the matter was argued before Honorable 
James H. Price, Special Judge, Greenville County Court.

On March 17, 1961, Judge Price issued an Order, af­
firming the judgment of the City Recorder.
[fol. 2] Notice of Intention to Appeal was thereupon duly 
served upon the City Attorney.

Proceedings Before City Recorder
Judge Jeste r: Mr. Arnold, is the city ready?
Mr. Arnold: Yes.
Judge Jeste r: Mr. Perry, defendants ready?
Mr. Smith: I would like to make a motion.
Judge Jester: Mr. Arnold, before we get into this I 

would like this man to move off the front row. I want 
to bring the defendants and put them on the front row. 
Are the defendants we have here? James Richard Peterson, 
is he here? Come around, James, and have a seat, James 
Carter, David Ralph Strawder, Frank G. Smith, Robert 
Crockett, Joan Yvonne Eddy, Helen Angela Evans, Harold 
James Fowler, Doris Wright and Rose Marie Collins. All 
of these defendants, Mr. Smith and Mr. Perry, are charged 
with trespassing after warning in violation of Act of 1960, 
number R896 H2135 of the state code of South Carolina. 
Do they plead guilty or not guilty?



3

Mr. Smith: Before we take the plea, Your Honor, we 
would like to make a motion to precede that, please!

Judge Jester: We will be glad to hear you on the motion.

Motion to Quash I nformation and D ismiss W arrant 
and D enial T hereof

Mr. Smith: At this time, on behalf of all these defen­
dants, Your Honor, we make a motion to quash the in­
formation and dismiss the warrant on the grounds that as 
stated, the charge is too indefinite and uncertain as to 
apprise these defendants of what they are actually being 
charged with. We feel that under the court merely to state 
the act charged under, and for trespassing is not enough, 
there should be some more under, these defendants are 
[fol. 3] not properly apprised of what they are actually be­
ing charged with under this warrant as drawn here.

Judge Jeste r: Anything further, Mr. Smith!
Mr. Smith: No, sir, it’s just too indefinite and uncer­

tain.
Judge Jester: Anything, Mr. Perry!
Mr. Perry: May I just add one sentence to the motion 

and that is, that the defendants are entitled under the Con­
stitution of the State of South Carolina to be fully in­
formed of the nature of the charge against them and to 
require them to got to trial on a warrant which is so 
vaguely and indefinitely phrased is to deprive them of 
liberty without due process of law, as protected under the 
14th Amendment to the United States Constitution, and 
under the South Carolina Constitution.

Judge Jeste r: Anything further!
Mr. Perry: No, sir.
Judge Jeste r: Any reply, Mr. Arnold!
Mr. Arnold: No, sir, Your Honor, I think the warrant 

is sufficiently definite, it refers to the number of the Act. 
The Act hasn’t come out in bound volumes yet, as opposing 
counsel knows, but it’s referred to the number and the 
date and I think it states trespass after notice and that’s 
substance of the act.



4

Judge Jester: I  overrule your motion, Mr. Smith and 
Mr. Perry. Now then, we have these defendants charged 
as I so stated and my next question. Do they plead guilty 
or not guilty?

P lea

Mr. Smith: All of the defendants plead not guilty. 
Judge Jester: And I understand that by agreement the 

city and counsel for the defendants have agreed to try all 
of these cases at one time?

Mr. Smith: That is correct.



State o f  S o u t h  lina 
COUNTY OF GRi. /ILLE

TRIAL
WARRANT

M U N IC IPA L C O U R T
CITY OF GREENVILLE

STATE OF SOUTH CAROLINA ( MUNICIPAL COURT ^  
COUNTY OF GREENVILLE f CITY OF GREENVILLE g*

THE CITY 
vs.

PERSONALLY comes before me deponent who makes oath that upon p? 
information and belief in tliis State and County and within the Limits of the

b erson , James Richard^
L A S T  FIR S T M IDD LE

Defendant

A r r e s t  a n d / o r  T r i a l  W a r r a n t

N ?  S f i S

City of Greenville on the— 9  th----day of-------- Allg---------- , 19 6 0  ,

the defendant James Rjch&rd Pet& rspn Q/K-------------------------------

did com m it the offense of T resp a ss in g  A fte r  Warntn&_As£«----
o f  l o f i n  N o  RRQfi ( H 9 I 3 8  o f  the S ta te  o f  South ......
C a r o lin a , approved by th e  Governor May 1 4 , .  1 9 6 0

illse T r esp a ss in g  A fte r _____

r u in g , . A c t . -  of-L96Q  N o .  

96 , H2135, o f  the S ta te

South  C a ro lin a  _____ All of which is against forms of the ordinances made and provided for,

id Required $_LOd».QO------------------
and against the peace and dignity of the City of Greenville, and that

id Posted $... —....— — ------------------

loguizance C] Cash □

are witnesses for the City ; and that defendant did commit said offense in the 
view of deponent, whereupon deponent, a police officer, did arrest defendant.

s /G .C . B ram lette

DATE SET FOR TRIAL 

AM Aug 10 - 19 -60

Sworn to before me this 9  t h --------------day
• _  . _  r o  (See reverse side if n<>iof Aug. ______ A. n . ,  19  6 2  .

Attorney for defendant

_ _ .s /  J .  E. M ed dlelor . . (L.S.) 
Notary Public for South Carolina 

Recorder, Municipal Court

MOTIONS
^ l̂ast 1 Tam AR FIRST middle

Alias______ ____—------------------------------------------------------

Color_C_ Age 16__ Sex_M . Nationality---N a g r a -------------

— Address------------------------------------------- ---------------------- -
VERDICT Cell No. 3 - 4  B .O .D .  1 0 - 8 - 4 3

Driver's License No. State--- -------------

Recorder Foreman On-View Arrest Q Reported □  Other HI _ .

JUDGMENT
or days

officers C a p t .  B r a m l e t t e , A s t . L t .  V o u g h n ,
J o h n s o n ,
Date of Arrest__8 —9 « 6 0 __________ 19__ Time 1 1 ; 4 3 ---M.

------------------- —---- ------ — Where__ . S i d e -  D o o r T C r e s s  . ____

--------------------__-------  ----- Date of Release ...  . ._. . .. ...... Time .. M.

•------------------------  ----- --- - Witnesses__ . ......

is ............ ...........  19

Recorder
Attest:

Other Information_ . . .. ............

Clerk
Desk Officer_ ___

! Stnt’on Lie i t e n - —

[fol. 3a]



AKKHST

W A R R A N T

STATE OF SOUTH CAROL!A.\ | MUNICIPAL COURT
COUNTY OF GREENVILLE ( CITY OF GREENVILLE

To the Chief of Police of ilie City of Greenv ille or any Police Officer thereof or

Arrest and bring before nte, or the Presiding Recorder, the defendant 

charged w ith ----- ----------------------------------------------------------------------------------

as shown on the reverse side hereof, and the witnesses lor the City herein 
named.

Given under my hand and seal this_____ ____ ___________ ________ uday

Recorder, Municipal Court

i appoint any Police Officer of the City of Greenville or__  __________e.__

__________ ___ ________ . ... .......... ......  ......to execute this warrant.

-------------------------------------------------- ------------ ---------- (SEAL)
Recorder, Municipal Court

STATE OF SOUTH CAROLINA |
COUNTY OF GREENVILLE (

Personally comes the undersigned deponent and makes oath that he

arrested the defendant... - ______ ______ ___________  ________ __________

on the....... ..........  day of__________ __ ____ __ ________>___ .__ , 19.

at_________________________________ _______

in the City of Greenville. State and County aforesaid.

Sworn to before me t h is ___ __  _ ___

day of___ _________  _ ____ ______ ____  , 19____

-------------  ------------------------------- (SEAL)
Notary Public for South Carolina 

Recorder. Municipal Court

(THIS SIDE TO BE USED ONLY IN REPORTED CASES—IT IS NOT 
TO BE USED WHERE ARREST HAS BEEN MADE BY OFFICER 
FOR OFFENSE COMMITTED IN TTIS PRESENCE)



5

[fol. 3A]



6

[fol. 4]
B efore t h e  C ity  R ecorder

T ranscript  of E vidence 

C apta in  G. 0 .  B ram lette

Judge Jester: And the facts and finding of one case 
would be the facts and finding of all as far as the record 
is concerned?

Mr. Smith: That is correct.
Mr. Perry: May I make one addition, Your Honor, that 

in the event that the testimony should indicate that one 
or more of the defendants is to be treated differently, from 
the rest of them in terms of any judgment of Your Honor, 
that at such time as the evidence does develop, that state 
of facts, that a motion for dismissal will be proper as to 
the person or any other motion which might be applicable 
to the situation.

Judge Jester: Well, I agree with you at this time until 
I have heard such a motion.

Mr. Perry: Yes, sir.
Judge Jester: Now who is the first witness, Mr. Arnold?
Mr. Arnold: Captain Bramlette.

C apta in  G. 0. B ra m lette , being duly sworn, testified as 
follows:

Direct examination.

By Mr. Arnold:
Q. Captain Bramlette, I believe you are a member of the 

police force of the City of Greenville ?
A. That is correct,
Q. Your rank is Captain?
A. Yes, sir.
Q. How long have you been captain with the depart­

ment?



7

A. Approximately five years.
Q. On August 9 of this year, did you receive a call from 

Kress Five and Ten Cent Variety Store?
[fol. 5] A. I had a call, I do not know where it come from 
Kress or not.

Q. You had a call?
A. Yes, sir.
Q. As a result of that call where did you go ?
A. To Kress’ Five and Ten Cent Store on South Main 

St.
Q. Where were you when you received the call?
A. In Police Headquarters.
Q. Did anyone accompany you?
A. Yes, sir.
Q. Who?
A. I went in patrol car 9 with Officers Berry and Wall.
Q. About what time was it you received the call?
A. 11:18 a. m.
Q. All right, when you got to Kress’ on South Main 

St., did you find any of the defendants ?
Mr. Perry: Your Honor, may I interpose a slight ob­

jection to Mr. Arnold’s methods. I believe that his ques­
tions tend to be leading and if he would kindly rephrase 
it so as to let the witness testify as to what he found, I 
don’t believe it would be objectionable.

Q. When you arrived at Kress’ Store, did you go into 
the store ?

A. I did.
Q. What did you find in the store, and I direct your 

attention to the lunch counter?
A. I met Officer Vaughn at the side door on McBee 

Avenue, he and I and several other officers entered the 
store. On arriving inside the store at the lunch counter 
which is located right rear of Kress, Officers, State Agents 
Hillyer and Morris were there and at the lunch counter 
we noticed these defendants along with four more. There 
[fol. 6] were fourteen sitting at the lunch counter, the other 
four are juveniles.-

Q. You saw these ten defendants, did you or not?
A. I did. ------------------ ^



8

Q. And they were doing what ?
A. They were sitting at the lunch counter.
Q. Sitting at the lunch counter? Now you mentioned 

two SLED Agents, Mr. Hillyer and Mr. Morris. Were 
they in the store when you arrived?

A. They were.
Q. All right. Do you know Mr. G. W. West?
A. I do.
Q. What position, if any, does he hold with the Kress 

Store?
A. He’s manager of the Kress Store.
Q. Was Mr. West, or not, in the store when you ar­

rived ?
A. He was.
Q. Approximately where was he?
A. He was at the rear, at the lunch counter.
Q. Did he make any statement to these ten defendants? 
A. He did.
Q. What did he say?
A. He announced that the-lunch counter was being closed 

and would everyone leave the store.
Q. Would everyone leave the store?
A. Yes.
Q. Did these ten defendants, or any one of them, leave 

the storeY”
A. They did not.
Q. Did they, were they standing or sitting when this re­

quest was made?
A. They were sitting.

[fol. 7] Q. Did they or not continue to sit?
A. They continued to sit.
Q. All right. What, if anything, did you do?
A. After a reasonable length of time we announced that 

they were all under arrest.
Q. Did you transport them to headquarters?
A. We had a patrol car outside and we carried them 

out the side door of Kress, we carried the girls first and 
put them in the patrol car and brought them to police 
headquarters.

Q. All right, sir, when they were brought to headquarters



9

is it, or not, customary to remove any personal effects, 
such as money, or knife or watch from a prisoner?

A. It is customary.
Q. All right, was that done in this case with respect 

to these ten defendants?
A. It was.
Q. All right, what amount of money, if any, was found 

on the person of Doris Wright?
A. Twenty-four cents.
Q. On Helen Evans ?
A. Thirty-one cents.
Q. James Carter?
A. No money.
Q. Robert Crockett?
A. No money.
Q. Rose Marie Collins ?
A. No money.
Q. Yvonne Eddy?
A. One dollar.
Q. James Richard Peterson?
A. One dollar and ninety-one cents.

[fol. 8] Q. David Ralph Strawder?
A. One dollar and eleven cents.
Q. Harold James Fowler?
A. None.
Q. Frank G. Smith, Jr.?
A. Five dollars and fifty-five cents.
Q. I believe that bond was posted for these defendants?
A. It was.
Q. When they were discharged under the bond, under 

their bonds, was the money and any other personal effects 
returned to the defendants?

A. State that again.
Q. When they were discharged under the appearance 

bond, this money that had been taken from the defendants, 
was it returned to the defendants?

A. It was.
Mr. Arnold: Witness with you.



10

Cross examination.

By Mr. Matthew J. P erry :
Q. Captain Bramlette, as I understand, you are a captain 

on the Greenville Police Force for five years?
A. Approximately five years, yes, sir.
Q. I see, and of course, were you also employed on the 

Greenville City Police Force prior to that time?
A. That’s correct.
Q. I see. As captain are you chief of the police, or not?
A. No, my position is in charge of one platoon.
Q. I see. Now, sir, I believe that you indicated that on 

the 9th of August you were at headquarters and received 
a call to go to Kress’ 5 and 10  ̂Store?

A. That is correct.
[fol. 9] Q. Do you know who made the call?

A. I do not know who called police headquarters hut 
my radio and telephone man informed me.

Q. I see. And I believe you said that you and Officer 
Vaughn went into the store together, you having met 
him?

A. Along with two or three others.
Q. What did you expect to find when you went to Kress?
A. I was told by Officer Mann who is my communications 

officer, there were a number of colored young boys and girls 
sitting at the lunch counter at Kress’.

Q. I  see. Does Greenville have an ordinance against 
conduct of this sort?

A. We do.
Q. What is the ordinance, please?
Mr. Arnold: I don’t see that’s relevant, they’re not 

charged under any segregation ordinance of the city.
Judge Jester: On the state law, am I right, Mr. Perry?
Mr. Perry: Judge Jester, if I may, sir, whatever it 

was that prompted Captain Bramlette to go to Kress’ 
upon being informed that Negroes were sitting at the 
lunch counter, I think is relevant. In other words, he must 
have been conscious of some law because after all, he’s 
a law enforcement officer and I respectfully submit that



11

I’m entitled to ask him on cross examination what law he 
was purporting to proceed upon.

Judge Jester: Your question was, does the City of 
Greenville have a law pertaining to this particular of­
fense! All right, I ’ll let him answer it.

Mr. Perry: Thank you. Does the City of Greenville 
have such a law, Captain Bramlette!

A. They do.
[fol. 10] Q. What is that law, please, sir!

A. It forbids colored and white eating at the same lunch 
counter.

Q. I see.
Mr. Perry : Your Honor, would you indulge me a moment, 

please, sir, I would like to look at that ordinance. I won’t 
take but a moment. I did not know that the City of Green­
ville had such an ordinance.

(Discussion off the record.)

By Mr. P erry :
Q. Now, Captain Bramlette, as you answered this call 

to go to Kress’, then you had the City Ordinance in mind 
which required separation of races in restaurants and eat­
ing places in the City of Greenville!

A. I did not.
Q. Yet you knew of the existence of such law!
A. I did.
Q. And as a Captain of the Greenville City Police Force, 

xou did not have this ordinance in mind when you went to 
investigate!

A. I had the recently passed State law in mind.
Q. I  see.* Did the caller identify the race of the persons 

who were sitting at the lunch counter!
Mr. Arnold: That would be hearsay.
Judge Jeste r: What was the question!
Mr. Arnold: He asked the caller identify the race.
Mr. P erry : I agree it would be hearsay.



12

By Mr. P erry :
Q. All right, sir, now, when you went—as you answered 

the call then, did you receive information that there was 
any violation of the public order taking place?
[fol. 11] A. I was informed by my communications officer 
that there was a number of colored boys and girls sitting 
at the lunch counter in Kress’.

Q. But there is nothing wrong with that, is there, sir?
Mr. Arnold: I don’t think he has to pass on that, it’s 

a matter of conclusion.
Judge Jester: I don’t think that’s in his discretion, 

Mr. Perry. He has the right to make the arrest and dis­
close later whether he’s right in doing so, am I right?

Mr. Perry: If Your Honor will bear with me, I be­
lieve that as an Officer of the Law, Captain Bramlette 
and his associates would, of course, naturally under their 
interpretation of the existing law be bound to enforce law 
and if there was nothing wrong with their sitting there 
perhaps he would not have had occasion to go to make 
the arrest.

Mr. Arnold: May it please the Court, it’s the procedure 
of the City that when an officer gets a call to come to a 
certain place it is not necessary for the caller or the in­
former to state what is taking place and it’s not necessary 
that the Officer take time to find out. If he’s called to come 
to a certain place and he’s on duty he should go there and 
investigate whatever may be transpiring or taking place.

Judge Jester: I think that is in substance, Mr. Perry, 
the attitude of the officer when they are on call because 
they could explain it had been a man killed or a man beating 
his wife and forty other things there before you went to 
see what was happening. I think possibly the main thing 
to do is get there and find out what’s going on.

Mr. P erry : Thank you.

[fol. 12] By Mr. P erry :
Q. Then, Captain Bramlette, when you arrived at Kress’ 

ancl saw these young people sitting at the lunch counter, 
were they orderly?



13

A. They were.
Q. Were they talking among each other?
A. Some of them were talking.
Q. Could you hear them talking?
A. I could not repeat a thing that was said, I may have 

heard their voices.
Q. Did any of them use any profanity!
A. I did not hear any.
Q. Were they well dressed?
A. All were neat in appearance.
Q. Neat in appearance, did you ascertain that they were 

clean?
Mr. Arnold: I don’t see that’s relevant. We’re not 

raising any question on that. He said they were neat in 
appearance and they were orderly. The specific charge 
is under the State Law and whether a person’s hands 
are clean or a little dirty is not relevant in a case like this.

Mr. Perry: I think if the Captain knows he certainly 
may testify to it on Cross Examination.

Judge Jester: I ’ll let him answer, Mr. Arnold.
The Witness: State the question again.

By Mr. Perry:
Q. Would you say in your opinion that they were clean 

or dirty?
A. They were clean.
Q. So there was nothing about their persons of an un­

offensive character, was it, in terms of neatness and clean­
liness?

A. That’s correct.
[fol. 13] Q. Now, Captain Bramlette, you’ve been a citizen 
of Greenville for quite some time?

A. That’s correct.
Q. Have you had occasion to go in and out of Kress’ Five 

and Ten Cent Store before?
A. Very few occasions.
Q. Have you been in and out of the place of business 

enough to know anything about its policy of serving the 
public?



14

A. I ’ve been there numerous occasions but not, I would 
say, I would.

Q. Does Kress’ Five and Ten Cent Store generally serve 
members of the public in its various departments without 
regard to race ?

Mr. Arnold: I don’t see that that’s relevant.
Judge Jester: Well, in this particular case it isn’t, Mr. 

Arnold. I think what he is getting at and getting in the 
record is whether or not the store that’s open is selling 
merchandise of any and all kinds and items to the public. 
That’s the purpose for the question, am I right?

Mr. P erry : All right.
Judge Jeste r: I ’ll let him answer yes or no.
The Witness: Yes.

By Mr. P erry :
Q. Kress’ Five and Ten Cent Store, I  believe, is a rather 

large variety store, is it not?
A. Yes.
Q. Then it has many departments, hasn’t it?
A. Yes.
Q. I believe it sells some aspects, clothing and various 

trinkets and all of the items that are usually sold in the 
stores such as Kress’, that is a variety store.

A. That is correct.
[fol. 14] Q. Now, let’s go for a moment, please to the lunch 
counter in Kress’. I believe Kress’ in Greenville does have 
a lunch counter, does it not?

A. That’s correct.
Q. And at that lunch counter members of the public are 

served, aren’t they?
A. That’s correct.
Q. Except that, I believe, withdraw that question—what 

is the policy of Kress’, if you know, sir, with regards to 
serving members of the Negro public at its lunch counter?

A. The policy of Kress’, I ’d rather for the manager of 
Kress’ to answer that.

Q. That’s quite all right, I have no intention to tax you 
with an unpleasant answer. Then as you saw these young, 
neat, clean and unoffensive colored people, what was it then



15

that made you, as a law enforcement officer of the City of 
Greenville, go into operation!

A. Under the State Law just passed by the Governor 
relative'to sit-down lunch counters in Greenville, I enforced 
this order.

Q. But the State Law that just passed and signed by the 
Governor in May doesn’t mention anything about Negroes 
sitting at lunch counters, does it!

A. It mentions sit-ins.
Q. Perhaps you would like to refresh your mind for a 

moment!
A. I was wrong, it doesn’t mention sit in.
Q. Thank you, sir. So that that particular statute didn’t 

indicate any course of action on your part at that time, did 
it, sir!

A. Not until after I arrived.
Q. And after you arrived there, what did the statute 

indicate that you should do!
[fol. 15] A. We arrested them and made a case, trespass­
ing after warning.

Q. Who were they warned about!
A. Mr. West, the manager of Kress’.
Q. What was the substance of this warning!
A. State that again.
Q. I would just like to know what was the warning 

that you said was made.
A. He announced that the lunch counter was being 

closed and would everyone leave.
Q. I see. Did I understand on your Direct Examination 

that he said “everyone leave the place” !
A. This lunch counter, I do not know. I think he said 

the lunch counter was closed.
Q. I see. Now this was, I believe, 11:18 in the morning 

or shortly thereafter!
A. That’s when I received the call.
Q. I see. August 9, I believe, was on a Tuesday, wasn’t 

it?
A. That’s correct.
Q. Now, could you, sir, tell me what time business 

places in Greenville normally close?
A. Between five and six o’clock in the evening.



16

Q. I see, those hours of opening and closing are more 
or less regulated not by law but by mutual consent, regu­
lated by the Chamber of Commerce, aren’t they?

A. I would imagine individual stores decide when they 
will open and close.

Q. But isn’t it a fact that most stores open and close 
about the same time in Greenville?

A. That’s correct.
Q. So that there is some uniformity, either by agreement 

or somehow, among the store owners that they open, they 
[fol. 16] close the stores at a certain time, and close at a 
certain time?

A. I couldn’t answer that.
Q. Well, now, sir, as a member of the public and also a 

member of the Greenville City Police Force don’t you have 
knowledge that the places of business in Greenville are 
closed at a certain time?

A. I ’m sure they have a certain time to close.
Q. And you have just now stated that Kress’ ordinarily 

closes around five or six o’clock?
A. That’s correct. Most of the time, 1 think, Friday night 

they stay open later.
Q. All right, sir. Now, why do you suppose they closed 

at that time ?
Mr. Arnold: I don’t think it’s up to him to answer that 

question.
Judge Jester: 1 think this was a call to the police de­

partment, Mr. Perry, for an officer and I believe that the 
manager of the store will be in better position to answer 
that question, than the officer as to why he closed, am I 
right?

Mr. P erry : Thank you, sir. May I ask, is the manager of 
the store in the Courtroom ?

Mr. Arnold: He’s in the Courtroom and will be put on 
the stand.

By Mr. P erry :
Q. Did the manager of Kress’, did he ask you to place 

these deiendants under arrest, Captain Bramlette?
A. He did not.



17

Q. He did not?
A. No.
Q. Then why did you place them under arrest?
A. Because we have an ordinance against it.

[fol. i7] Q. An ordinance?
A. That’s right.
Q. But you just now testified that you did not have the 

ordinance in mind when you went over there?
A.. State jaw jn niind when I went up there.
Q. And that isn’t the ordinance of the City of Greenville, 

is it?
A. This supersedes the order for the City of Greenville.
Q. In other words, you believe you referred to an or­

dinance, but I believe you have the State Statute in mind?
A. You asked me have I, did I have knowledge of the 

City ordinance in mind when I went up there and I an­
swered I did not have it particularly in my mind, I said 
I had the State ordinance in my mind.

Q. I see and so far this City ordinance which requires 
separation of the races in restaurants, you at no time had 
it in mind, as you went about answering the call to Kress’ 
and placing these people under arrest?

A. In my opinion the State law was passed recently 
supersedes our City ordinance.

Q. I think, sir, that you may be somewhat off on that but 
we won’t belabor the issue, because His Honor, I believe, 
can make a proper ruling on that. But my question, I don’t 
want to seem repetitious but I don’t believe I got a direct 
answer to it. So once more, sir, you did not have the 
Greenville ordinance which requires separation of the races 
in mind when you placed these defendants under arrest?

Mr. Arnold: Now, he’s answered that three times.
Judge Jester: I  think that one more firm answer, Cap­

tain, would suffice the record.
[fol. 18] The Witness: I had the State ordinance in mind.

By Mr. P erry :
Q. Now, Captain, I still don’t want to belabor but Your 

Honor, I respectfully submit the answer was not respon­
sive. I believe he is capable of a yes or no answer.

A. I had the act that was passed May of this year in my



18

mind an act which “provides for the offense of trespassing 
after warning with penalty thereafter—”

Mr. Arnold: No need to read it.
Mr. Perry: All right, sir. And do 1 understand that you 

did not have the Greenville City ordinance in mind, sir?
A. We have all ordinances in mind when we answer the 

call to go anywhere.
Q. But you just now admitted you didn’t have this one in 

mind, Captain'?
A. I didn’t have it in mind?
Q. I seem to recall that you said it.
A. I have all ordinances in mind.
Q. So now, as I understand, you change your testimony 

to say that you now have this ordinance in mind?
A. I am not saying I had it in mind, I said this super­

sedes our City ordinance. This is the one I was acting 
under.

Q. And the manager of Kress’ did not at any time ask 
you to place these defendants under arrest, did he?

A. He did not.
Q. Yet you used the power of your office to place them 

under arrest without being requested by the manager of 
Kress to do so ?

A. I did.
[fol. 19] Mr. Perry: Thank you, Captain Bramlette.
That’s all, Your Honor.

Mr. Arnold: That’s all.
(Witness excused.)

Me. G. W. W est, being duly sworn, testified as follows:
Judge Jester: You are the manager of the Kress’ Store? 
The Witness: Yes, sir.

Direct examination.

By Mr. Arnold:
Q. Mr. West, you are the manager of the Kress Variety 

Store located on the east side of South Main Street, here 
in the City of Greenville?



19

A. Yes, sir.
Q. On August 9, 1960, Tuesday of this week, did Officers 

Bramlette and Vaughn come into your store around 11 
o’clock?

A. Yes, sir.
Q. Were any people at that time seated at the lunch 

counter?
A. Yes, sir.
Q. Was it of both races or just one race!
A. Both races.
Q. Both races? Did you make any statement or request 

to the people sitting at the lunch counter?
A. Yes, sir.
Q. What?
A. We turned out the lights at the lunch counter and 

requested everybody to leave, that the lunch counter was 
closed.
[fol. 20] Q. Everybody to leave, all right, I believe you 
said there were some white people sitting there, also?

A. Yes, sir, I did.
Q. Did they or not, leave immediately?
A. Yes, sir, they left.
Q. All right, these ten defendants, of the Negro race, 

were they sitting at the lunch counter?
A. Yes, sir, they were.
Q. When you made that request?
A. Yes, sir, they were.
Q. Did they leave?
A. No, sir, they did not.
Q. How long did they stay there before being placed 

under arrest, would you say?
A. I would say about five minutes, I guess.
Q. About five minutes. Were you in the process or not 

of roping off the lunch counter?
A. Yes, sir, we had started to, we turned out the lights.
Q. I believe you testified, did you or not, that Captain 

Bramlette and the other officers placed these ten defen­
dants under arrest?

A. Yes, sir. Those ten and four others.
Q. And they were escorted from the store?
A. Yes, sir, that’s right.
Mr. Arnold: Witness with you.



20

Cross examination.

By Mr. P erry :
Q. Mr. West, how long have you been manager of Kress’ 

in Greenville I
A. Since February 3.
Q. I see. Have you also worked for the Kress chains 

in other cities?
A. Yes, sir, fifteen years.

[fol. 21] Q. Fifteen years, how long have you lived in 
Greenville?

A. Since February 3rd.
Q. I see, and when you came into Greenville did you 

learn anything about the policies of the Kress Store with 
regard to serving members of the public?

A. Well, I knew that before I  came into Greenville.
Q. I see. I believe Kress is a very large variety store, 

isn’t it, sir?
A. Yes, sir.
Q. I believe I learned in another city that it was called a 

junior department store now, is that correct?
A. That is the name it’s been given to it.
Q. And Kress operates in cities practically all over the 

United States, doesn’t it?
A. Yes, sir.
Q. I believe it is one of the largest businesses of its kind 

in the country?
A. Well, I wouldn’t say it was one of the largest ones, 

no.
Q. But it is certainly not one of the smaller?
A. That’s right, yes, sir.
Q. Sir, what is the policy of Kress’ with regard to serv­

ing members of the public in all of its numerous depart­
ments?

Mr. Arnold: I don’t see the relevancy of that, Your 
Honor.

Judge Jester: I don’t think it deals directly with tres­
passing after notice but I ’m going to let him put it in the 
record, Mr. Arnold.



21

By Mr. P erry :
Q. Let me put it this way, sir, approximately how many 

departments does Kress’ have?
A. Fifteen or twenty.

[fol. 22] Q. Those fifteen or twenty departments sell about 
how many different commodities!

A. I t’s hard to estimate, probably over ten thousand 
items.

Q. Probably over ten thousand items?
A. Yes, sir.
Q. Are all members of the public invited into the business 

of Kress’?
A. Yes, sir.
Q. And all members of the public, include Negro, and 

white, Indians and Chinese and every other nationality, do 
they not ?

A. Yes, sir.
Q. So that Negroes are invited in Kress’ to do business?
A. That’s correct.
Q. And when they come in to do business of these various 

items, I believe, you said over ten thousand items, is it not 
the policy of Kress’ to serve them courteously?

A. Yes, sir.
Q. Now, I believe, Kress’ also has a lunch counter area?
A. That’s correct.
Q. And it likewise is operated by the Kress chain?
A. Yes, sir.
Q. What is the policy of Kress’ Greenville, South Caro­

lina, store with regard to serving Negroes and whites at its 
lunch counter?

A. We follow local customs.
Q. Now, sir, “we follow local customs”, is that orders from 

your headquarters ?
A. Yesjiii:——
Q. It is?

[fol. 23] A. Absolutely.
Q. And you understand as the manager of Kress’ as­

signed to Greenville and possibly in other areas that it is 
one of the mandates of your national organization business 
chain to follow local custom with reference to serving mem­
bers of the public?



22

A. That’s correct.
Q. Now, what is the local custom with regard to serving 

Negroes and whites at your lunch counter!
A. The local custom, that we serve whites only.
Q. I see, so that members of the Negro public who may 

come in by invitation of your company to buy some ten 
thousand other articles may not purchase a cup of coffee or 
any other item from your lunch counter!

A. Yes, sir.
Q. That is your policy, isn’t it!
A. Yes, sir.
Q. Now, on August 9 when these young people were 

seated at your lunch counter, what did you do first!
A. The first thing I had one of my employees call the 

Police Department and turn the lights off and state the 
lunch counter was closed.

Q. Was this a prearranged matter, so far as your office 
was concerned!

Mr. Arnold: Your Honor, I don’t think that’s competent. 
He can go so far but there’s one question and one ques­
tion only in this case, was the State Law violated! All that 
leads up to it, and all is nothing it’s irrelevant, is to be 
placed in the record, as I interpret it, purely for a preju­
dicial standpoint when we could stay here ’til next week.

Mr. Perry: I don’t believe it’s our intention to stay ’til 
next week.
[fol. 24] Judge Jester: Your question, Mr. Perry, was 
this prearranged!

Mr. Perry: Yes, sir.
Judge Jester: I don’t know what your next question 

would be.
Mr. Perry: Your Honor, if I may, it is my purpose 

through this line of questioning to bring out from this wit­
ness any arrangements or agreements which the manager 
of Kress’ and/or, the managers of other like businesses 
might have had with the Police Department or the City of 
Greenville, the South Carolina Law Enforcement Division, 
the Sheriff of Greenville County and any other law enforce­
ment agency. And my question, which is designed to deter­
mine from this witness as to whether or not this course of



23

action which he followed was prearranged, is designed to 
lead me into that particular area.

Judge Jester: Well, I will have to rule it out, Mr. Perry.
I think that the facts that appear in any particular instance 
would be a minor method on which he would have to make 
his decision. I ’d have to rule that out. I think the facts in 
each case would be the controlling factor in what he did.
I have to rule it out.

Mr. Perry: Your Honor, may I respectfully request that 
you reconsider that ruling in the light of the fact that here 
we are raising constitutional questions and there will ul­
timately be presented to the Court a motion based upon 
the unconstitutional application of the statute involved in 
this case, in this line of interrogation, is relevant. And in 
the light of that we respectfully request then a reconsider­
ation of your ruling.

Judge Jester: I have ruled out, I will have to rule that 
his acts were taken on what happened at that particular 
[fol. 25] time, this act that presented itself at that partic­
ular instance.

Mr. P erry : All right, sir.

By Mr. P erry :
Q. Mr. West, why did you order your lunch counter 

closed?
A. I t’s contrary to local customs and its also the ordi- 

nancethat has been discussed.
'HJT Do I understand then further, that you are saying that 
the presence of Negroes at your lunch counter was contrary 
to customs?

A. Yes, sir.
Q. And that is why you closed your lunch counter?
A. Yes, sir, that’s right.
Q. I see, and after the polinaiifl-fl i»nmp anrl tnkp.ii the de ,̂ 

fendants away, duTyoiTreopen your lunch counter?,
A. Yes, sip!
Q. Ana cud yon reopen it bv reason of the fact that the 

presence oFThe Negroes was no longer a threat to your 
business?

A. Yes, sir.



24

Q. Do you agree with the observations of Captain Bram- 
lette that these young people were clean and unoffensive?

A. Yes, sir. I agree with him.
Q. Do you further agree that they were not profane, 

and not boisterous?
A. To the best of my knowledge they were not, I didn’t 

hear any profanity.
Q. Yet you went in their presence and stated that the 

place was closed?
A. Yes, sir.

[fol. 26] Q. So that when you say, “not in your presence,” 
you are taking into account the fact that they were directly 
in your presence?

A. Well, there were fourteen, sir, and they were spread 
out down the counter, and of course, I went to a group at 
a time. That’s why I say I don’t know what the others were 
saying at the other end when I was speaking to the ones at 
the opposite end.

Q. But you don’t make any statement that they were only 
anything but orderly, do you?

A. That’s correct, yes, sir.
Q. Now, I understand that they were seated, they mean­

ing these defendants, were seated at your lunch counter 
approximately five minutes before they were arrested?

A. Yes, sir.
Q. And you at no time requested Captain Bramlette and 

the other officers to place these defendants under arrest, 
did you?

A. No, I did not.
Q. That was a matter, 1 believe, entirely7 up to the law 

enforcement officers ?
A. Yes, sir.
Q. Mr. West, had you at any time conversed with Cap­

tain Bramlette or any officer of the South Carolina Law 
Enforcement Division concerning the anticipated presence 
of Negroes to your lunch counter?

Judge Jester: Don’t think that’s admissible, Mr. Perry.
Mr. Perry: Of course, Your Honor, has made your ruling 

and I do not quarrel with the Court.
Judge Jeste r: Thank you.



25

Mr. Perry: I sincerely request, Your Honor, to recon­
sider ruling because under my theory there is no question 
[fol. 27] that the line of inquiry is quite relevant to the 
issue.

Judge Jester: I have to rule it out, Mr. Perry.
Mr. Perry: All right, sir. Thank you, Mr. West. One 

other question, may I?
Mr. Arnold: Yes, sir.

By Mr. P erry :
Q. Of course, you only came to Greenville in February?
A. Yes, sir.
Q. During that period of time I would imagine you spent 

a great deal of time learning your own Kress’ Five and Ten 
Cent Store?

A. Yes, sir, that’s right.
Q. But have you not also had the occasion to learn some­

thing about the City in which you recently moved to ?
A. Yes, sir.
Q. Do you know the policies that are followed by other 

businesses such as yours with regard to this same question, 
that is, the serving of Negroes at lunch counters?

A. You want my opinion?
Q. Not your opinion, just your knowledge of the custom?
A. My knowledge of the custom is exactly as ours.
Q. That's what I was after, sir. Let me ask you this, sir. 

Approximately how many people can you seat at your lunch 
counter?

A. About fifty-nine.
Q. Fifty-nine?
A. Yes.
Q. And do members of the public generally, those working 

uptown and those perhaps in town on business come into 
[fol. 28] your store regularly for meals around the lunch 
hour?

A. Yes, sir.
Q. So that your business, you do a pretty good business 

in serving members of the public at lunch time ?
A. Fairly good, yes, sir.
Q. The service of food is a vital service being rendered 

by your company, isn’t it?



26

A. Well, it’s one of the services that we perform.
Q. Your company and the other companies which are per­

forming the same services are, as a rule, you are just about 
feeding the public, aren’t you?

A. Yes, sir.
Mr. P erry : Thank you, sir.
Mr. Arnold: That’s all, thank you. That’s the City’s case, 

Your Honor.
(Witness excused.)
Mr. Perry: Your Honor, would you see fit to grant us a 

two- or three-minute recess ?
Judge Jeste r: Be glad to.
(Short recess taken.)

Motion to D ismiss W arrants and D enial T hereof

Mr. Perry: May it please the Court at this time the de­
fendants move to dismiss the warrants against them, all of 
which warrants charged a violation of Act Number R896, 
House Bill Number 2135 of the State of South Carolina, 
which Act was approved by the Governor on May 16, 1960. 
The evidence presented on the charge shows conclusively 
that by arresting the defendants the officers were aiding and 
assisting the owners and managers of Kress’ Five and Ten 
Cent Store, in maintaining their policies of segregating or 
excluding service to Negroes at its lunch counter.

Mr. Arnold: Excuse me a minute, do you want this re­
porter to take the argument down?
[fol. 29] Mr. Perry: Yes, sir.

Judge Jeste r: This is a motion she’s taking?
Mr. P erry : Yes, sir, that’s right.
Mr. Arnold: When you start your argument if you don’t 

want her to take it, tell her not to.
Mr. Perry: I might say that I have no argument to make 

on the matter, just the substance of the motion.
Mr. Arnold: All right. Thank you.
Mr. P erry : —
Judge Jester: Your last statement was aiding and as­

sisting the owners of the store as I  recall?



27

Mr. Perry: Yes, sir. In maintaining their policies of seg­
regating and excluding services to Negroes at the lunch 
counter on the ground of racial color, in violation of the 
defendants’ rights to due process of law, and equal pro­
tection of the laws, under the 14th Amendment to the United 
States Constitution. That is the motion, there will be no 
argument on the motion.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: Also, may it please the Court, at this time, 

the defendants move to dismiss the warrant on the ground 
that the warrant which charges them with trespass after 
warning, the designation of the act being set forth in the 
warrant is invalid, in that the evidence establishes merely 
that the defendants were peacefully upon the premises of 
S. H. Kress & Co. Which establishment is performing an 
economic function invested with the public interest as 
customers, visitors, business guests, or invitees, and there 
is no basis for the charge recited by the warrant other than 
an effort to exclude these defendants from the lunch coun­
ters of Kress’ Five and Ten Cent Store, because of their 
race and color. The defendants at the same time are ex­
cluded from equal service at the preponderant number of 
other eating establishments in the City of Sumter, I beg 
[fol. 30] your pardon, I ’m reading from another motion so 
if the Court will permit me to insert the City of Greenville.

Judge Jester: I would have done the same thing myself.
Mr. Perry: Yes, sir. In the City of Greenville, South 

Carolina, thereby depriving them of liberty without due 
process of law, and equal protection of the laws secured to 
them by the 14tli Amendment to the United States Con­
stitution. That is the motion, there will be no argument.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: I have a further motion, Your Honor, with 

reference to the constitutionality of the statute. At this 
time may it please the Court, the defendants move that the 
warrants against them be dismissed, which warrants charge 
the crime of trespassing after warning. The designation of 
the act being set forth in the warrant under which all of 
these defendants, who are Negroes, were arrested and 
charged is on the evidence unconstitutional as applied to



28

the defendants, in that, it makes it a crime to be on property 
open to the public after being asked to leave because of race 
or color, in violation of the defendants’ rights under the 
due process and equal protection clauses of the 14th Amend­
ment to the United States Constitution. That is the motion.

Judge Jeste r: Motion denied, Mr. Perry.
Mr. Perry: At this time, may it please the Court, the 

defendants move for a dismissal on the ground that under 
the evidence presented the City has not established by com­
petent evidence a prima facie case.

Judge Jester: Motion denied, Mr. Perry.
Mr. Perry: Very good, sir.

[fol. 31] Judge Jester: That gets all the motions in the 
record?

Mr. Perry: Yes, sir, it does.
Mr. Smith: The defense calls as its first witness Mr. 

Raymond H. Carter.
Judge Jeste r: I didn’t catch the name, Mr. Smith.
Mr. Smith: Raymond IT. Carter. C-a-r-t-e-r.

Me. R aymond H. Caetee, being duly sworn, testified as 
fo llo w s:

Direct examination.

By Mr. Smith:
Q. Mr. Carter, where do you live? *
A. I l l  Luke St., Washington Heights.
Q. In Greenville?
A. Yes, sir.
Q. How long have you lived in Greenville ?
A. All my life.
Q. Are you employed here?
A. No, sir.
Q. You aren’t employed?
A. No.
Q. On August 9, on or about eleven o’clock in the morn­

ing, did you have occasion to be in Kress’ Five and Ten 
Cent Variety Store?



29

A. I did.
Q. On that morning were you anywhere near the lunch 

counter of Kress’?
A. Yes—
Q. Were you also there when the acts testified to hereto­

fore this morning took place? You heard what has been 
said here already this morning?

A. No, not everything.
[fol. 32] Q. Were you there when some arrests were made 
of colored people sitting at the lunch counter?

A. I was.
Q. Were you there when the store was closed since you 

heard Mr. West testify, you heard him testify the store was 
closed?

A. Yes.
Q. Were you there at that time?
A. I was right there.
Q. Would you please just tell us in your own words what 

were your observations, what did you see and hear, during 
the time of the closing of that lunch counter, just give it 
to us in your own words ?

A. Well, actually I didn’t hear the manager say the lunch 
counter was closed, I only heard the officers and he could 
have said lunch counter closed but I didn’t hear him. About 
the only thing I heard was the lunch counter was closed and 
you’re under arrest. They didn’t give the kids a chance to 
get up.

Q. Which officer are you referring to now, could you iden­
tify him, is he in the Court room ?

A. He was the one I saw, this one, this guy right here with 
the paper in his hand going out the door.

Mr. Smith: May we have him identified, please.
Mr. Arnold: Mr. Hillyer.
Mr. Smith: Mr. Hillyer?
Mr. Partee: Mr. H-i-l-l-y-a-r.
Mr. Smith: I believe he is an officer of the South Carolina 

Law Enforcement Division, is that right?
Mr. Arnold: That is correct.
Mr. Smith: We would like the record to show your 

Honor that this witness pointed out Mr. Hillyer, who has



30

been recognized as an officer of the South Carolina Law 
Enforcement Division.
[fol. 33] Judge Jester: Glad to do that.

By Mr. Smith:
Q. Was that the only request that you heard for these 

children to leave ?
A. He said lunch counter closed and the officer imme­

diately began arrest, stand-up and line-up, you’re under 
arrest and began searching the young men.

Q. Well, did the officer make a request that they leave?
A. No.
Q. Did you hear the request ?
A. No, I didn’t hear a request.
Q. Did you hear the manager, Mr. West, make a request 

that they leave ?
A. I didn’t hear Mr. West say anything, like I said before.
Q. As I understand, if such a request had been made, 

would they have had time to leave?
A. No.
Q. Immediately upon the statement, they were imme­

diately placed under arrest?
A. Immediately.
Mr. Arnold: I think, Mr. Smith, you are leading the wit­

ness a little.
Mr. Smith: I ’m sorry.
Judge Jester: I usually wait ’til you all object because 

that’s not my business.

By Mr. Smith:
Q. Mr. Carter, did everyone leave the lunch counter?
A. No.
Q. Some people remained seated?
A. The white citizens.
Q. Can you identify them ?
A. Well—

[fol. 34] Q. I mean as to race?
A. Yes, sir.
Q. They did not leave?



31

A. They didn’t leave.
Q. Even after you heard the statement the lunch counter 

was closed?
A. Well, yes, they didn’t leave.
Q. Did you observe any attempt made to arrest those 

white persons who refused to leave?
A. No.
Q. They were allowed to remain, that was your observa­

tion?
AT They did.
Q. Did you hear any other officer make a request?
A. Well, that one, was the only one I heard and the others 

I think went to his command. They all began right after 
he said that, searching the young men and lining them up. 
And I also stayed in the store and watched while they was 
arresting and walking out the door, the lights came back on 
and the whites didn’t leave.

Q. They remained seated?
A. They remained seated.
Q. And is your testimony that no one made any attempt 

to arrest them?
A. No, sir, and I didn’t see a rope to rope off the counter.
Q. You did not see a rope?
A. I did not see a rope.
Q. Did you hear anyone say “you are trespassing”?
A. I didn’t hear anything about trespassing ’til they were 

locked up.
[fol. 35] Q. All you heard were the counter’s closed and 
the immediately arrest even before they had, could make 
an attempt to get up from the stools and leave?

A. Yes, sir.
Mr. Smith: That’s all.

Cross examination.

By Mr. Arnold:
Q. What is your age, please?
A. Twenty.
Q. Twenty. And you say that you are unemployed?
A. Well, at the present, yes.



32

Q. Are you married!
A. No.
Q. You live with your mother and father here?
A. Ido.
Q. What is the last employment you had?
A. I worked for the Southern Railway, Railroad.
Q. What?
A. Mail handler for the Southern Railroad.
Q. I didn’t catch the answer?
A. Mail handler.
Q. When did you leave the Southern Railroad?
A. It was the day of the accident, the wreck at Seneca, 

I don’t recall the date.
Q. All right, did you go with these ten defendants up to 

Kress’ Store?
A. No, I didn’t. I didn’t go with them, I was by myself, 

they was in front of me.
Q. But then you followed them?
A. Sure I followed them, that’s a free street.
Q. You knew that they were going into the store?
A. Sure I knew it.

[fol. 36] Q. As a matter of fact, Mr. Carter, weren’t you 
the leader of this group?

A. If I was the leader, I would have been arrested.
Q. I  didn’t ask you that.
A. Was I the leader?
Q. Yes.
A. No, I wasn’t the leader.
Q. Before Officer Bramlette and Vaughn and some of the 

others arrived on the scene, weren’t you going up and do™ 
the line where these ten defendants were sitting, talking 
with them ?

A. Sure, I  know ’em.
Q. But you didn’t sit down?
A. No, I didn’t.
Q. I want to ask you when you saw Captain Bramlette 

and some of the other officers come into the store, you kind 
of made yourself scarce, so to speak?

A. I was right there, they didn’t see me, but I saw them.
Q. But you moved away from the vicinity of the lunch 

counter?



33

A. No, I didn’t.
Q. But you didn’t sit down?
A. I didn’t sit down.
Q. Where were you standing when the officers were there ?
A. Right next to another counter observing.
Q. Well, why couldn’t the officers see you, you said they 

didn’t see you ?
A. Well, at that time, they marched the kids out.
Q. The time they marched the kids out ?
A. At the time, they marched them out, I left.
Q. Did you leave by the side door or the front door?
A. The front door.

[fol. 37] Q. I want to ask you, Mr. Carter, isn’t it a fact 
that you went into that store with the purpose of being 
able to come and testify in case any arrests were made?

A. No, that wasn’t my purpose.
Q. What was your purpose in going in there?
A. That’s a chain store and I had money in my pocket to 

buy something I saw.
Q. Did you buy anything ?
A. No, I didn’t.
Q. Did you attempt to buy anything?
A. Yes, I did.
Q. What?
A. I needed a new tip for this walking stick.
Q. Did you get it?
A. No, I didn’t.
Q. Did they have it?
A. I think so, but after I saw the kids sit down that took 

my mind off this walking stick. That was more interesting 
than my walking stick, at the present.

Q. So you didn’t go to attend to your own business, but 
you attempted to mind somebody else’s?

A. I didn’t help ’em.
Q. What?
A. I didn’t help ’em mind their business, I merely spoke 

to ’em and talked to ’em.
Q. You talked with them?
A. Yes. Anything wrong with me talking with them?
Q. I ’m not being questioned. Is James Carter, one of the 

defendants, your brother?



34

A. Yes, sir.
Q. Where did you first meet up with this group, on this 

particular morning?
A. Where did I first meet up with them?

[fol. 38] Q. Yes.
A. Well, I didn’t meet up with them, when I saw them 

they were going in Kress’.
Q. And you intended to go in Kress’, also?
A. Sure.
Q. You followed them in?
A. Sure I did, I had a purpose for going in there, too.
Q. But you never did sit down ?
A. No.
Q. Now, you say that Mr. Hillyar here, with SLED gave 

an order to close the lunch counter?
A. I didn’t say he give the order, I said he give the order 

under arrest.
Q. Under arrest?
A. Yes.
Q. I understood if my recollection is correct, that you 

stated that he made the statement that the lunch counter 
is being closed?

A. I also said that I heard someone else say lunch counter 
closed and he said you’re under arrest.

Q. Now, I believe, on Direct Examination you stated that 
you could not be positive whether or not, Mr. West, the 
store manager, made the statement, that the lunch counter 
—asked them to leave, request it?

A. No, I couldn’t say that Mr. West said that, I didn’t 
hear him.

Q. In other words, I understand your testimony, you don’t 
say that he did or he didn’t?

A. No.
Q. I believe you testified that James Carter, one of the 

defendants, is your brother?
A. Yes, sir.

[fol. 39] Q. Do you own an automobile?
A. Me?
Q. Yes?
A. No, sir.
Q. Does James own an automobile?



35

A. No, sir.
Q. Did you come down to headquarters to get a set of 

car keys from James?
A. I did.
Q. Whose car was that ?
A. My mother’s car.
Q. Where is it that you live ?
A. Out at Washington Heights, 111 Luke St.
Q. Approximately how far is that from Kress’ Store?
A. Well, I ’d say, good two and a half miles.
Q. Does your brother James live with you?
A. Yes, we all live together.
Q. Did you all come to town that particular morning 

together in your mother’s car?
A. Yes, we did.
Q. Who else was in the car with you?
A. At the time, Mrs. Jones, she’s not here.
Q. Were any of these other nine defendants in the car 

with you that morning?
A. Yes, sir, I said Mrs. Jones.
Q. Mrs. Jones?
A. Yes.
Q. Is she a defendant here?
A. No, sir, she’s not in here. She’s at the Juvenile Home, 

or some place.
Q. She’s one that’s under sixteen years of age?
A. Yes.

[fol. 40] Q. And that puts three in the car, were there any 
more in the car ?

A. That’s all.
Q. At any time that morning, before the arrest, did any 

of these other nine defendants ride with you or your 
brother, James, in the car?

A. No.
Q. Where did you leave your car parked?
A. Up on Laurens Street that runs behind Woolworth 

and Green’s, I think that’s the name of the street.
Mr. Arnold: Thank you.
(Witness excused.)



36

Mr. Smith: Next witness, Doris Wright, one of the
defendants.

D oris W right, being duly sworn, testified as follow s: 

D irect exam ination.

By Mr. Smith:
Q. Where do you live, Miss Wright?
A. 13 Nichols Street. That’s in Nicholtown.
Q. In Greenville ?
A. Yes.
Q. At the present are you employed, are you a student, 

or what is your present—
A. I am a graduate student, I ’m not employed.
Q. You’re not employed at present?
A. No.
Q. I believe on the morning of August 9, at around eleven 

o’clock, you went into Kress’ Five and Ten Cent Store? 
A. That’s correct.

[fol. 41] Q. Miss Wright, would you tell us what your 
purpose was in going up to Kress that morning, please? 

A. I went in Kress, my main purpose was to be served. 
Q. Served where?
A. At the lunch counter.
Q. At the lunch counter? You then went into Kress’ with 

the intention of getting some lunch, or coffee or something 
like that ?

A. Yes.
Q. Did you make a request to be served?
A. I did.
Q. After sitting at the lunch counter?
A. I did.
Q. What was the reply to your request?
A. “I ’m sorry, we don’t serve Negroes.”
Q. Sorry, we don’t serve Negroes?
A. Yes.
Q. Were there other people sitting at the counter at that 

time, Miss Wright?
A. They were.



37

Q. Were they being served!
A. They were.
Q. Did they continue to serve them!
A. Well, they continued to serve the orders that had been 

placed, but they didn’t, no new orders were made.
Q. No new orders were made!
A. No, no more.
Q. The request or order that the store is closed, was it 

made at the time that you were there!
A. Yes, it was.
Q. How long had you been seated at the lunch counter 

before the order, that the lunch counter is closed, was made! 
[fol. 42] A. We had been sitting at the counter approxi­
mately three minutes.

Q. Do you remember what person told you or relayed 
the order to you that the lunch counter was closed!

A. Well, no, I heard a voice say that “the lunch counter 
was dosed, you ’reminder arrest.” and I forgot his name over 
there, he made the order that the counter was closed and 
that we were under arrest. Mr. West, did not make the re­
quest because he was coming from the back at the time, 
at the time the arrests were being made.

Q. You pointed over there, who were you pointing at!
A. In the brown suit there, whatever color it is, I can’t 

see from here.
Mr. Smith: Your Honor, I believe that’s Mr. Hillyar, 

would you let the record also show that this witness pointed 
out Mr. Hillyar of the South Carolina Law Enforcement 
Division as the person who gave that order!

By Mr. Smith:
Q. Now, the way you just testified, as if the order and 

the arrest were all in one sentence!
A. It was, in one breath.
Q. No pause!
A. No pause.
Q. As I understand the order was, the lunch counter is 

closed, you’re under arrest!
A. That’s right.
Q. And were you immediately placed under arrest!



38

A. We were.
Q. Were you given any opportunity to leave if you’d 

wanted to, Miss Wright?
A. No.

[fol. 43] Q. Did you observe the lunch counter at all after 
your arrest, as to whether or not, everybody left the lunch 
counter?

A. Well, I couldn’t say because Officer Wall and the po­
licemen in the back there, they got four girls and put us in 
a car and immediately carried us down to headquarters. 
We left the boys and two other girls in the store, they were 
searching the boys, they were searching the boys in the ear.

Q. So you were not able to observe as to whether or not 
the other people at the counter left or not?

A. No.
Q. Miss Wright, I want to ask you this question, did you 

expect to be served at Kress on that morning?
A. Well, I had talked with the manager earlier, during 

some other demonstrations and he had stated that the pres­
sure that was being put on him by our demonstrations. 
And I also asked him a question, if he would press charges 
against us, if we would continue coming and he said, no, 
and also, I went back to the counter since so much pressure 
is on him, maybe he will break as he is done, as they were 
serving us in other parts of the store. Maybe he will be 
willing to serve us at the lunch counter, too.

Q. Then did you expect to be served?
A. Yes, I did.
Q. Did you feel that you had a right to be served?
A. Yes, I did.
Q. That was your purpose for being there that day?
A. That’s right.
Mr. Smith: Your witness.

[fol. 44] Cross examination.

By Mr. Arnold:
Q. You referred to other demonstrations, how many times 

previous to this, had you been to the store and sat down at 
the lunch counter ?



39

A. I don’t recall, it has been several times.
Q. Some three or four?
A. I wouldn’t some three or four, I would say it has been 

several times.
Q. Several times?
A. Yes.
Q. Now several, you mean two ?
A. One or more, yes.
Q. One couldn’t be several, could it?
A. No, so it would be one or more, could be two, I 

couldn’t vouch for three.
Q. How many in this group of ten defendants were with 

you on prior occasions going to Kress’ Stores, if you can 
recall, approximately?

A. I would say two to three.
Q. Two to three?
A. Yes.
Q. Where did you ten meet that morning?
A. We didn’t.
Q. You mean all ten of you just happened to gather up 

at Kress’?
A. I didn’t say we happened there, I said we didn’t meet.
Q. If you didn’t happen there, then what did you do, just 

explain to the Court?
A. Well, I mean, since the curfew and everything, we 

thought the managers thought we were afraid of our light 
for freedom, and our privileges, so we telephoned, when I 
[fol. 45] say we, I telephoned and other defendants tele­
phoned and we decided we would go get us some coffee. I 
don’t know whether Jim was coming up town, I guess he 
wanted some coffee, too. I mean, ’cause my pocketbook, I 
couldn’t buy anything else but coffee or soda.

Q. Where is it you live ?
A. Nicholtown, 13 Nichol Street.
Q. How did you get to tow7n that morning, in a car or on 

a bus?
A. I rode the City bus.
Q. Rode the City bus? Did any of these other ten defen­

dants accompany you on the bus that morning?
A. No, they didn’t.
Q. But you all did meet there in front of Kress’?



40

A. No, we didn’t.
Q. Where?
A. We didn’t meet.
Q. Well, let me ask you this, didn't the ten of you go in 

the store, more or less, as a group?
A. No, we didn’t.
Q. You went in singular?
A. No, we didn’t. I don’t know how they come, I went in 

Kress.
Q. Was—
A. I was accompanied by one.
Q. Let me ask you, were any of these other nine defen­

dants already sitting down at the counter when you got 
into the store?

A. No, they weren’t.
Q. You were the first one?
A. Yes, I was.
Q. Now, who was with you?
A. Helen Rose, Helen Evans.

[fol. 46] Q. She’s a defendant here?
A. Yes.
Q. Was anyone else with you?
A. No.
Q. How long would you say it was after you all sat 

down before the eight other defendants came and sat down?
A. It may have been a minute or so.
Q. A minute or so? Well, then, they must have been in 

the vicinity of Kress’ Store?
A. I couldn’t say.
Q. All right, you say you all went in there to get some 

coffee, or to served at the lunch counter?
A. Uh huh.
Q. Can you explain to the Court how these four that had 

no money could be expected to be served, had no money on 
their person?

A. Beg your pardon, sir.
Q. These four that Officer Bramlette testified had no 

money on their person when they were arrested, could you 
give the Court an explanation as to how they could expect 
to be served any food or coffee?



41

A. I imagine they could expect to be served by the 
waitress, by the waitresses.

Q. But you know it’s a matter of common knowledge you 
don’t go into a store and order coffee or food when you don’t 
have any money on your person ?

A. I didn’t say that they ordered, I said that I ordered.
Q. My question to you, can you offer any explanation to 

the Court, as how these four that had no money on their 
persons could have expected to be served food or coffee?

A. No, I don’t.
[fol. 47] Q. And you deny that Mr. West made any re­
quest to you, to leave ?

A. Ido.
Q. Did you hear Mr. West say anything?
A. No.
Q. Of course, you are not in position to say whether 

or not Mr. West may have made a request to some of the 
other nine?

A. Yes, I am, Mr. West, come from the back of the store, 
at the time we were being arrested and were told that the 
lunch counter was closed.

Mr. Arnold: Thank you.
Mr. Smith: Just one minute, one or two questions on Re­

direct, Your Honor.

Redirect examination.

By Mr. Smith:
Q. First, Miss Wright, I would like to ask you, if you 

and all your co-defendants, all of you that were arrested 
that morning, are all of you Negroes?

A. We are.
Q. No white people among them, in that arrest?
A. No.
Q. You have testified here this morning as to the amount 

of money that each of you, you and your co-defendants, had 
upon their person and their pockets. Wouldn’t it be cus­
tomary for some of the—

Mr. Partee: That’s leading.



42

Judge Jester: I don’t believe I can go along if I ’m in­
terpreting your question. Mr. Smith.

Mr. Smith: I believe, I may have started it as being lead­
ing, Your Honor, but what I ’m after, I believe is admissible, 
[fob 48] Judge Jeste r: Now, if it isn’t, I ’m going to strike 
it out. Go ahead, if it isn’t, I ’m going to strike it out.

Mr. Arnold: Tell the witness not to answer until the 
Court has ruled.

Judge Jester: Go ahead and ask her but tell her not to 
answer, I ’ll ask Doris not to answer until I have ruled.

By Mr. Smith:
Q. I will ask you whether or not it is customary in a group 

of friends like that for one to pay for whatever another may 
order, or what two or three may order?

Judge Jeste r: I ’ll have to rule that out on account of her 
previous statement there.

Mr. Smith: All right, that’s all.
Mr. Perry: One other witness, please, sir. Your Honor, 

we would like to call Officer Hillyer of the South Carolina 
Law Enforcement Division and we presume that by reason 
of the fact that he is an officer of the South Carolina Law 
Enforcement Division, that he is hostile and we ask per­
mission to treat him as a hostile witness.

Mr. Partee: Your Honor, I would think that would neces­
sarily be true. He’s merely enforcing the law which is any 
law enforcement officers are—

Judge Jester: I couldn’t consider him as a hostile wit­
ness, Mr. Perry.

Mr. Perry: I know him quite well, I think he’s a very 
fine gentleman but in this matter—

Judge Jester: He is a law enforcement officer, but I’m 
a Judge and I ’m not a hostile Judge.

Mr. Perry: Not at all.
Judge Jester: I think every darky that’s ever been in 

and sat before me said I done them as fair as anybody else 
[fol. 49] but I can’t say that because I ’m working for the 
City that I ’m hostile, so I couldn’t go along with you. I’ll 
allow you to call him but I will not put into the record that 
he is a hostile witness.



Mr. Perry: Well, if at any point in his testimony it de­
velops that he is hostile perhaps Your Honor will recon­
sider. We ask that Officer Hillyer come to the stand.

Me. 0. R. H illyer, being duly sworn, testified as follows: 

Direct examination.

By Mr. P erry :
Q. Mr. Hillyer, I believe you are an officer of the South 

Carolina Law Enforcement Division!
A. That’s right.
Q. How long have you been working for the agency, sir!
A. Four years and two months.
Q, Do you hold any official position in the office, or are 

you what is known as patrolman!
A. I ’m an agent.
Q. You are an agent!
A. We don’t have patrolmen.
Q. I see. What are the general duties of an agent, may 

I ask!
A. An agent of the South Carolina Law Enforcement 

Division is set up as an assistant agency to help any police 
or sheriff’s office that needs any assistance that we can ren­
der, and we render any assistance we can render.

Q. I see, and w7ho do you receive your orders from?
A. Chief J. P. Strom.

[fol. 50] Q. I see, and Chief J. P. Strom is the head of the 
South Carolina Law Enforcement Division?

A. That is correct.
Q. May I ask you, sir, who does Chief Strom take his 

orders from?
A. Governor Hollings.
Q. I see, so when Chief Strom’s men go into action, why 

generally speaking the Governor of the State is more or 
less, his attitude is reflected by what he would do. On the 
occasion in question, namely August 9, at which time it 
has been testified that these defendants were arrested, were 
you present at Kress’ Five and Ten Cent Store?



44

A. I was present at Kress’.
Q. I see. Were other agents of the South Carolina Law 

Enforcement Division present !
A. Yes, they were.
Q. Did you render any assistance to the Chief of Police 

or the other local law enforcement officers on this occasion!
A. I checked a few of the boys, a few of the defendants, 

I shook them down.
Q. Did you confer with Captain Bramlette concerning the 

charge which would be placed against them?
A. No, sir, I did not.
Q. Did you any way assist in effecting the arrest?
A. You’ll have to ask that another way. I was there to 

assist Captain Bramlette or any other policeman.
Q. I see, and my question was, did you assist?
A. Yes.
Q. I see. Thank you, sir.
Mr. Perry: You may examine.

[fol. 51] Cross examination.

By Mr. Partee:
Q. Mr. Hillyer, I believe, you were in the store before 

Captain Bramlette and Officer Vaughn, perhaps some other 
officers arrived?

A. I was.
Q. Who gave the order or made the request for the de­

fendants to leave the store?
A. Mr. West. Mr. West, told them the store was closed, 

the lunch counter was closed.
Q. Was he in a position and was his voice loud enough 

for these ten defendants to have heard him?
A. Yes, sir.
Q. After he made that request, what happened?
A. After Mr. West said the lunch counter was closed, 

the defendants just remained seated, and a few minutes 
after he had made the request Captain Bramlette said 
“you are under arrest.”



45

Q. Captain Bramlette is the one who put them under 
arrest?

A. That’s correct, sir.
Q. Did you put any of them under arrest ?
A. No, sir, Captain Bramlette, ordered placed them 

under arrest.
Q. Did you at any time say “the lunch counter is closed, 

you’re under arrest”?
A. I did not.
Q. Now, there’s been testimony that the request order to 

leave and the arrest was simultaneous, is that true or not?
A. That is not true.

[fol. 52] Q. Now, after Mr. AVest said the lunch counter is 
closed, did he also say, “you are requested to leave or every­
body leave the counter” or anything like that?

A. He said “the lunch counter is closed, everybody leave” 
but the defendants didn’t move.

Q. There’s no doubt in your mind they all heard it?
A. No doubt in my mind they all heard it.
Air. Partee: Thank you, sir.
Air. Perry: Just one more question. Now, as I under­

stand it, in response to these questions you stated that 
Captain Bramlette made the arrest, that as I understood 
your earlier testimony, you did render assistance to Cap­
tain Bramlette?

The AATtness: That’s correct.
Air. Perry : Very good, sir. I think that’s all.
(AVitness excused.)
Air. Perry : Your Honor, that’s the defendant’s case.
Air. Arnold: AVe have nothing in reply.

R enewal of AIotions and D enial T hereof

Air. Perry: At this time, may it please the Court, the 
defendants would like to renew all motions for dismissal 
which were made at the conclusion of the City’s case and 
we would like to renew them in this manner as if repeated 
again in their entirety. Aly purpose being to expedite these 
proceedings.



46

Mr. Arnold: We are willing to agree to that, we ask that 
they be reproduced in the record as if so done.

Judge Jeste r: Motion so denied.
Mr. Perry: I would like, at this time, to make this addi­

tional motion which is to be appended to the motions which 
were made at the conclusion of the City’s case. At this 
time, the defendants move for a dismissal of these cases 
which charged these defendants, all of whom are Negroes, 
with the violation of the statute which is set forth in the 
warrant, on the ground that the Negroes, the Negro de- 
[fol. 53] fendants, were arrested and charged under a stat­
ute which is itself unconstitutional on its face, by making 
it a crime to be on public property after being asked to 
leave by an individual, at such individual’s whim. In that, 
such statute does not require that the person making the 
demand to leave, present documents or other evidence of 
possessing a right sufficient to apprise the defendants of 
the validity of the demand to leave. All of which renders 
the statute so vague and uncertain, as applied to the de­
fendants, as to violate their rights under the due process 
clause of the 14th Amendment to the United States Consti­
tution, that is the motion, no argument on that, sir.

Judge Jeste r: Motion denied, Mr. Perry.
Mr. Perry: All right, sir. May it please the Court for 

whatever it’s worth, we should like to have placed in evi­
dence the ordinances of the City of Greenville, Section 31-B 
as amended. We should like very much to have, Your 
Honor, consider that as a part of the evidence in this case, 
and we make this observation that although the warrant 
does not cite that particular ordinance, Captain Bramlette 
stated in his testimony that he had this and all the ordi­
nances of the City of Greenville and the statutes of the 
State of South Carolina affecting this situation in his mind. 
We would, therefore, like to have this ordinance included 
in the evidence.

Mr. Arnold: Your Honor, to identify, Mr. Perry, Section 
31-B of the 1953 Greenville City Code as amended.

Mr. P erry : Thank you.
Mr. Arnold: We can’t see the relevancy of it, it’s 

just encumbering the record, there’s no charge on it.



47

[fol. 54] Judge Jeste r: I ’d have to deny it because I ’m try­
ing this case purely on those facts and the substance there­
of, of the act as set forth in the warrant on the arrest.

Mr. Perry: All right, sir. The defendants will agree to 
waive any final argument before judgment, if that is ac­
ceptable to the City.

Mr. Arnold: We agree to that, Your Honor.
Judge Jester: Let the record so show that both the De­

fendants and the City waive the arguments and places the 
case in the hands of the Recorder, is my understanding.

Mr. Perry: Beg your pardon ?
Judge Jester: That’s my understanding, no argument.
Mr. Perry: I might say depending on whatever ruling we 

may have one or two observations that we would like to 
make.

S entence

Judge Jester: Sentence of the Court that James Richard 
Peterson, James Carter, David Ralph Strawder, Frank G. 
Smith, Robert Crockett, Joan Yvonne Eddy, Helen Angela 
Evans, Harold James Fowler, Doris Wright, Rose Marie 
Collins, pay a fine of $100.00, or serve a sentence of thirty 
days.

Mr. Perry: May it please the Court, at this time, the de­
fendants each move for arrest of judgment or in the al­
ternative for a new trial.

(Off the record.)
Mr. Perry: The defendants based upon all motions and 

all grounds used in said motions both at the beginning of 
this proceeding, at the end of the presentation of the City’s 
case, and at the end of the defendant’s case, we move for 
arrest of judgment or in the alternative a new trial based 
upon all those grounds and we ask that they be stated in 
[fol. 55] the record, in the new form, that is motion for 
arrest of judgment or alternative for new trial.

Mr. Arnold: We have no objection to that form. In 
other words, there’s no need to encumber the record by 
repeating it.

Mr. Perry: Very good, sir.



48

Judge Jester: All right.
Mr. Perry: At this time, may it please the Court, the de­

fendants each give verbal notice of appeal and we state to 
the Court that within the period required by statute we 
would tender the formal written notice incorporating our 
exceptions and we ask that the Court set an appeal binder 
in this matter.

Judge Jester: Two hundred-dollar bond in each case, Mr. 
Perry, same they have up now, an appeal bond, and if 
necessary, do you need a little time? I think Mr. Arnold 
will be glad to give you additional time in which to get up 
the appeal and file all the papers. I think the appeal is 
ordinarily gotten up in twenty-four hours and if he needs 
a little extra time, there’s no objection to that.

Mr. Arnold: Counsel of the parties have just agreed, 
subject to Your Honor’s approval, that the appearance 
bonds signed on August 9, 1960, by Mr. M. B. Tolbert for 
each of the ten defendants in the amount of $200.00 be con­
sidered and continued as an appeal bond without the neces­
sity of formally re-executing the bonds, is that agreeable 
with opposing Counsel?

Mr. Smith: That’s agreeable.
Mr. P erry : That’s agreeable.
Mr. Arnold: I think that the Bondsman might have to be 

sworn.

[fol. 56] M. B. T olbert, being duly sworn, testified as fol­
low s:

Direct examination.

By Mr. Arnold:
Q. Do you agree to continue the ten appearance bonds 

each in the amount of $200.00 that you have signed for each 
of these ten defendants on August 9, 1960, to be continued 
and considered as an appeal bond and that your liability 
will remain $200.00 each on said bond.

A. Yes, I do.
Mr. Arnold: You think that’s sufficient?



49

Mr. Smith: That’s fine.
Mr. Perry: Thank you very much.
(Witness excused.)
Judge Jester: Thank you, gentlemen, Court adjourned. 
(Court adjourned at 10:50 a. m.)

Sec. 31-8, Code of Greenville, 1953, A s A mended

Sec. 31-8, Code of Greenville, 1953, as amended by  1958 
Cumulative Supplement.

It shall be unlawful for any person owning, managing or 
controlling any hotel, restaurant, cafe, eating house, board­
ing house or similar establishment to furnish meals to white 
persons and colored persons in the same room, or at the 
same table, or at the same counter; provided, however, that 
meals may be served to white persons and colored persons 
in the same room where separate facilities are furnished. 
Separate facilities shall be interpreted to mean:

(a) Separate eating utensils and separate dishes for the 
serving of food, all of which shall be distinctly marked by 
some appropriate color scheme or otherwise;
[fol. 57] (b) Separate tables, counters or booths;

(c) A distance of at least thirty-five feet shall be main­
tained between the area where white and colored persons 
are served;

(d) The area referred to in subsection (c) above shall not 
be vacant but shall be occupied by the usual display coun­
ters and merchandise found in a business concern of a 
similar nature;

(e) A separate facility shall be maintained and used for 
the cleaning of eating utensils and dishes furnished the two 
races. (Code 1953, Sec. 31-8, Ord. No. 9, Sec. 1.)



50

I n the Greenville County Court 

Order—March 17,1961
This is an appeal to this Court from the Recorder’s Court 

of the City of Greenville.
The Defendants were tried on August 11, 1960, in the 

Greenville City Recorder’s Court before the Recorder, John
V. Jester, upon a charge of violating the Act of May 20, 
1960, which in substance makes any person a trespasser 
who refuses to leave the premises of another immediately 
upon being requested to leave.

The Act is very simple and plain in its language.
It appears that on August 9, 1960, the ten Defendants, 

who are making this appeal, with four other young Negro 
youths went to the store of S. H. Kress and Company and 
seated themselves at the lunch counter at that store. At the 
trial there seemed to be some attempt to minimize the evi­
dence of the officers involved as to whether or not the De­
fendants, now Appellants, refused to leave the premises 
immediately upon the request of the store manager that 
they should leave. However, in the argument of the chief 
counsel for the Appellants, all question of doubt in this re­
spect is resolved in favor of the City. According to the 
written Brief of the Defendants, the Defendants now 
[fol. 58] “seated themselves at the lunch counter where they 
sought to be served. They were not served and, in fact, were 
told by the management that they could not be served and 
would have to leave. The Defendants refused to leave and 
remained seated at the lunch counter.”

The act clearly makes it a criminal offense for any per­
son situated as the Defendants were to refuse or fail to 
“immediately” depart upon request or demand.

Therefore, the main question before this Court is whether 
or not the Appellants were lawfully tried on a charge of 
violating this Act by refusing to leave the lunch counter 
immediately when requested to do so.

In the oral argument counsel for the Appellants seemed 
to reply in a vague manner upon an “unconstitutional ap­
plication” of the Statute.

As the Court views the statute it was merely a statutory 
enlargement and re-enactment of the common law in South



51

Carolina which has been recognized for more than a half 
century to the effect that when a property owner, whether 
it be a dwelling house or place of business, has the right to 
order any person from the premises whether they be an 
invitee or an uninvited person. This principle of law was 
fully and clearly reaffirmed by the Supreme Court of South 
Carolina in the recent case of State v. Starner et al., 49 
S. E. (2d) 209.

For scores of years South Carolina has had a number of 
Statutes with reference to the law of trespass. They are now 
embodied as Article 5, Code of 1952, embracing Sections 
16-381 to 16-394. Section 17-386 particularly refers to tres­
passes after notice.

Therefore, the Act of May 20, 1960, now designated in 
the 1952 Code as Sec. 17-388 is the controlling factor here. 
There can be no doubt that the field into which the Legisla- 
[fol. 59] ture entered by the enactment of this particular 
law was a well recognized portion of the law of the State of 
South Carolina. The Constitutionality of the Act cannot be 
questioned.

Every presumption will be made in favor of the Consti­
tutionality of a statute. There are more than fifty decisions 
by the Supreme Court of South Carolina to this effect. 
The United States Supreme Court in many cases has recog­
nized that there is a presumption in favor of the consti­
tutionality of an Act of Congress or of a State or Municipal 
legislative body. In the case of Davis v. Department of 
Labor, 317 U. S. 255, 87 Law Ed. 250, the United States 
Supreme Court held that there is a presumption of consti­
tutionality in favor of State statutes. Time and time again 
the Supreme Court of South Carolina has held “the law is 
well settled that the burden is on the person claiming the 
Act to be unconstitutional to prove and show that it is un­
constitutional beyond a reasonable doubt”. McCollum v. 
Snipes, 49 S. E. 12, 213 S. C. 254.

In 16 C. J. S. 388, we find this language, “Statutes are 
presumed to be valid and a party attacking a statute as 
unconstitutional has the burden of proof”. Over five hun­
dred decisons from all over the United States are cited to 
support this statement of the law.



52

The argument of counsel for the Appellants failed to 
raise a single serious question as to the constitutionality 
of the statute.

Counsel for Appellants insisted upon the right of the 
Defendants to adduce evidence of some alleged conspiracy 
or plan on the part of the officers of the law and store 
management to bring about this prosecution. We think 
the sole issue in the Recorder’s Court was whether or not 
the Defendants were guilty of violating the Act in question. 
They now boldly admit through counsel that they defied 
[fol. 60] the management of the store and refused to leave 
when requested. Had they departed from the store imme­
diately, as the law requires they should have, there would 
have been no arrest, but apparently in accordance with a 
preconceived plan they all kept their seats and defied the 
management and refused to leave the premises.

Evidence of any other motive on the part of the manage­
ment would have thrown no light on this case.

In my opinion the appeal should be dismissed because 
the prosecution was conducted under a valid constitutional 
statute and in addition the appeal should be dismissed upon 
the ground that S. H. Kress and Company had a right to 
control its own business. We think this position is fully 
sustained under the recent case of William v. Johnson, Res. 
344, 268 Fed. (2d) 845, and the North Carolina case of 
State v. Nelson, decided January 20, 1961, and reported 
in 118 S. E. (2d) at page 47.

I carefully considered all the exceptions made by the 
Appellants and I am unable to sustain any of them. It is, 
therefore,

Ordered, adjudged and decreed that the Appeal be dis­
missed.

James H. Price, Special Judge, Greenville County 
Court.

March 17,1961.



53

[fol. 61]
I n  the Greenville County Court

N otice of I ntention to A ppeal— March 21,1961
To Messrs. W. E. Arnold and H. F. Partee, Attorneys 

for the City of Greenville:
You will please take notice that the defendants above 

named intend to and do hereby appeal to the Supreme 
Court of South Carolina from the Order of the Green­
ville County Court in the above matter, dated March 17, 
1961, the case and exceptions to be hereafter served upon 
you.

Willie T. Smith, Jr., Lincoln C. Jenkins, Jr., 
Matthew J. Perry, Attorneys for Defendants.

March 21, 1961.

Due and legal service of the foregoing Notice is accepted 
this 22 day of March, 1961.

H. F. Partee, City Attorney.

I n  the Greenville County Court 

E xceptions

1. The Court erred in refusing to hold that the warrant 
is vague, indefinite and uncertain and does not plainly and 
substantially set forth the offense charged, thus failing to 
provide appellants with sufficient information to meet the 
charges against them as is required by the laws of the State 
of South Carolina, in violation of appellants’ rights to due 
process of law, secured by the Fourteenth Amendment to 
the United States Constitution.

2. The Court erred in refusing to hold that the State 
failed to establish the corpus delicti.

3. The Court erred in refusing to hold that the State 
failed to prove a prima facie case.
[fol. 62] 4. The Court erred in refusing to hold that the
evidence of the State shows conclusively that by arresting



54

appellants the officers were aiding and assisting the owners 
and managers of S. H. Kress and Company in maintaining 
their policies of segregating or excluding service to Negroes 
at their lunch counters on the ground of race or color, in 
violation of appellants’ rights to due process of law and 
equal protection of the laws, secured by the Fourteenth 
Amendment to the United States Constitution.

5. The Court erred in refusing to hold that the evidence 
establishes merely that the appellants were peacefully upon 
the premises of S. H. Kress and Company, an establishment 
performing an economic function invested with the public 
interest as customers, visitors, business guests or invitees, 
and that there is no basis for the charge recited by the 
warrants other than an effort to exclude appellants from 
the lunch counter of said business establishment because of 
their race and color, thereby depriving appellants of liberty 
without due process of law and equal protection of the laws, 
secured by the Fourteenth Amendment to the United States 
Constitution.

6. The Court erred in refusing to hold that the statute 
appellants are alleged to have violated, to wit, Act No. 743 
of the Acts and Joint Resolutions of the General Assembly 
of South Carolina for 1960 (R 896, H 2135), is unconsti­
tutional on its face by making it a crime to be on public 
property after being asked to leave by an individual at such 
individual’s whim and does not require that the person 
making the demand to leave present documents or other 
evidence of possessory right sufficient to apprise appel­
lants of the validity of the demand to leave, all of which 
renders the statute so vague and uncertain as applied to 
[fol. 63] appellants as to violate their rights under the due 
process clause of the Fourteenth Amendment to the United 
States Constitution.

7. The Court erred in refusing to permit defendants’ 
counsel to elicit relevant testimony concerning coopera­
tion of Store Managers and Police in the City of Green­
ville, South Carolina in pursuing the store managers’ poli­
cies, customs and practices of segregating or excluding 
Negroes from their lunch counters.



55

I n the Greenville County Court 

A greement as to R ecord

It is hereby stipulated and agreed by and between counsel 
for the appellants and respondent that the foregoing when 
printed, shall constitute the Transcript of Record herein 
and that printed copies thereof may be filed with the Clerk 
of the Supreme Court and shall constitute the Return 
herein.

W. H. Arnold, Greenville, S. C., H. F. Partee, Green­
ville, S. C., Attorneys for Respondent.

Jenkins & Perry, Columbia, S. C., By Matthew J. 
Perry, Willie T. Smith, Jr., Greenville, S. C., At­
torneys for Appellants.

______
[fol. 64]
In the S upreme Court of the S tate of S outh Carolina

City of Greenville, Respondent, 
v.

James R ichard P eterson, Y vonne J oan E ddy, H elen 
Angela E vans, D avid R alph S trawder, H arold J ames 
F owler, F rank G. S m ith , R obert Crockett, J ames 
Carter, D oris D elores W right and R ose Marie Collins, 
Appellants.

Appeal From Greenville County 
James H. Price, Special County Judge

Case No. 4761
Opinion N o. 17845—Filed November 10,1961 

Affirmed
Jenkins &• Perry, of Columbia, and Willie T. Smith, Jr., 

of Greenville, for appellants.
W. H. Arnold and H. F. Partee, both of Greenville, for 

respondent.



56

T aylor, C. J . : Defendants were convicted of the charge 
of trespass after notice in violation of Section 16-388, Code 
of Laws of South Carolina, 1952, as amended, and appeal. 
By agreement of counsel, all bail bonds were continued in 
effect pending disposition of this appeal.

On August 9, 1960, in response to a call, law enforcement 
officers were dispatched to the S. H. Kress Store in Green­
ville, South Carolina, a member of a large chain of stores 
operated throughout the United States and described as 
a junior department store. Upon arrival they found the 
ten defendants and four others who were under sixteen 
years of age, all Negroes, seated at the lunch counter. There 
is testimony to the effect that because of the local custom 
to serve wffiite persons only at the lunch counter the man­
ager of the store announced that the lunch counter was 
closed, the lights were extinguished, and all persons were 
requested to leave. The white persons present left, but all 
Negroes refused to leave; and those above the age of six­
teen were thereupon charged with trespass after notice as 
provided in the aforementioned section of the Code, 'which 
provides:

“Any person:
“ (1) Who without legal cause or good excuse enters 

into the dwelling house, place of business or on the 
premises of another person, after having been warned 
within six months preceding, not to do so or

“ (2) Who, having entered into the dwelling house, 
place of business or on the premises of another person 
without having been warned within six months not to 
do so, and fails and refuses, without good cause or 
excuse, to leave immediately upon being ordered or 
requested to do so by the person in possession, or his 
agent or representative,

“Shall, on conviction, be fined not more than one 
hundred dollars, or be imprisoned for not more than 
thirty days.”

Defendants contend, first, error in refusing to dismiss the 
warrant upon the ground that the charge contained therein



57

was too indefinite and uncertain as to apprise the defen­
dants as to what they were actually being charged with, 
[fol. 65] Defendants were arrested in the act of commit­
ting the offense charged, they refused the manager’s request 
to leave after the lunch counter had been closed and the 
lights extinguished, and there could have been no question 
in defendants’ minds as to what they were charged with. 
Further, there was at that time no claim of lack of sufficient 
information, and upon trial there was no motion to require 
the prosecution to make the charge more definite and cer­
tain. Defendants rely upon State v. Randolph, et a l.,-----
S. C .----- , 121 S. E. (2d) 349, where this Court held that
it was error to refuse defendants’ motion to make the 
charge more definite and certain in a warrant charging 
breach of the peace. It was pointed out in that case that 
breach of the peace embraces a variety of conduct and de­
fendants were entitled to be given such information as 
would enable them to understand the nature of the offense. 
This is not true in instant case where the charges were 
definite, clear and unambiguous; further, no motion was 
made to require the prosecution to make the charge more 
definite and certain. There is no merit in this contention.

Defendants next contend that their arrest and conviction 
was in furtherance of a custom of racial segregation in 
violation of the Fourteenth Amendment to the Constitution 
of the United States.

Defendants entered the place of business of the S. H. 
Kress Store and seated themselves at the lunch counter, 
they contend, for the purpose of being served, although four 
of them had no money and there is no testimony that such 
service was to be paid for by others.

The testimony reveals that the lunch counter was closed 
because it was the custom of the S. H. Kress Store in 
Greenville, South Carolina, to serve whites only and after 
all persons had left or been removed the lunch counter 
was reopened for business. The statute with no reference 
to segregation of the races applies to “Any person: * * * 
Who fails and refuses without cause or good excuse * * * 
to leave immediately upon being ordered or requested to 
do so by the person in possession or his agent or repre­
sentative, * * * ” The act makes no reference to race or



58

color and is clearly for the purpose of protecting the rights 
of the owners or those in control of private property. Ir­
respective of the reason for closing the counter, the evidence 
is conclusive that defendants were arrested because they 
chose to remain upon the premises after being requested 
to leave by the manager.

Defendants do not attack the statute as being uncon­
stitutional but contend that their constitutional rights were 
abridged in its application in that they were invitees and 
had been refused service because of their race. The cases 
cited do not support this contention while there are a num­
ber of cases holding to the contrary. See Hall v. Common­
wealth, 188 Va. 72, 49 S. E. (2d) 369, 335 U. S. 875, 69 S. Ct. 
240, 93 L. Ed. 418; Henderson v. Trailway Bus Company,
D. C. Va., 194 F. Supp. 423; State v. Clyburn, 247 N. C. 
455, 101 S. E. (2d) 295; State v. Avent, 253 N. C. 580, 118 
S. E. (2d) 47; Williams v. Howard Johnson Restaurant, 
4 Cir., 268 F. (2d) 845; Slack v. Atlantic White Tower 
System, Inc., D. C. Md., 181 F. Supp. 124, 4 Cir., 284 F. (2d) 
746; Griffin v. Collins, D. C. Md., 187 F. Supp. 149; Wilming­
ton Parking Authority v. Burton, Del., 157 A. (2d) 894;
Randolph v. Commonwealth,----- V a .------ , 119 S. E. (2d)
817. The Fourteenth Amendment erects no shield against 
merely private conduct, however discriminatory or wrong­
ful, Shelley v. Kraemer, 334 U. S. 1, 68 S. Ct. 836, 92 L. Ed. 
1161, 3 A. L. R. (2d) 441; and the operator of a privately 
owned business may accept some customers and reject 
others on purely personal grounds in the absence of a stat­
ute to the contrary, Alpaugh v. Wolverton, 184 Va. 943, 
136 S. E. (2d) 906. In the absence of a statute forbidding 
discrimination based on race or color, the operator of a 
privately owned place of business has the right to select 
the clientele he will serve irrespective of color, State v. 
Avent, 253 N. C. 580, 118 S. E. (2d) 47. Although the gen­
eral public has an implied license to enter any retail store 
the proprietor or his agent is at liberty to revoke this 
license at any time and to eject such individual if he refuses 
to leave when requested to do so, Annotation 9 A. L. R. 
379; Annotation 33 A. L. R. 421; Brookside-Pratt Mining 
Co. v. Booth, 211 Ala. 268, 100 So. 240, 33 A. L. R. 417; 
and may lawfully forbid any and all persons, regardless of



59

reason, race or religion, to enter or remain upon any part 
of his premises which are not devoted to public use, Hender­
son v. Trailway Bus Company, 194 F. Supp. 426.
[fol. 66] The lunch counter was closed, the lights extin­
guished, and all persons requested to quit the premises. 
Defendants refused and their constitutional rights were not 
violated when they were arrested for trespass.

Upon cross-examination of Capt. G. O. Bramlette of the 
Greenville City Police Department, it was brought out that 
the City of Greenville has an ordinance making it unlawful 
for any person owning, managing, or controlling any hotel, 
restaurant, cafe, etc., to furnish meals to white persons and 
colored persons except under certain conditions; and Defen­
dants contend that they were prosecuted under this ordi­
nance; however, the warrant does not so charge and there 
is nothing in the record to substantiate this contention. The 
ordinance was made a part of the record upon request 
of defendants’ counsel but defendants were not charged 
with having violated any of its provisions. The question 
of the validity of this ordinance was not before the trial 
Court and therefore not before this Court on appeal.

Defendants further contention that the prosecution failed 
to establish the corpus delicti is disposed of by what has 
already been said.

We are of opinion that the judgment and sentences ap­
pealed from should be affirmed; and It Is So Ordered. 
Affirmed.

Oxner, Legge, Moss and Lewis, JJ., concur.

[fol. 68]
In the S upreme Court of the S tate of S outh Carolina

[Title omitted]
P etition for R ehearing

To the Honorable Chief Justice and Associate Justices 
of the Supreme Court of South Carolina:

Petitioners, James Richard Peterson, Yvonne Joan Eddy, 
Helen Angela Evans, David Ralph Strawder, Harold James



60

Fowler, Frank G. Smith, Robert Crockett, James Carter, 
Doris Delores Wright and Rose Marie Collins, respectfully 
request a rehearing in the above entitled case. We respect­
fully submit that this Court, in affirming the judgment of 
the Court below, may have overlooked or misapprehended 
certain facts and rules of law, urged by petitioners in their 
appeal.

1. The Court may have overlooked the fact that the 
Manager of Kress’ did not close his store premises on the 
day petitioners were arrested, and testified that he closed 
the lunch counter only because of petitioners’ presence, 
moreover, he reopened the counter as soon as petitioners 
[fol. 69] were removed from the premises. It thus does not 
appear that there was an actual closing of the premises and 
the Manager was apparently only cooperating with the 
police.

2. The Court may have overlooked the testimony of 
Captain Bramlette (Tr. pp. 9-10, ff. 33-37) and of Mr. West, 
the store manager (Tr. p. 25, ff. 97-98) that their acts on 
the day petitioners were arrested were motivated in part 
by Section 31-8, Code of the City of Greenville, which re­
quires segregation of the races in eating establishments. 
Given the consideration urged by petitioners, it becomes 
apparent that though they were prosecuted in the name of 
trespass, their arrests and convictions were based upon 
their attempted use of eating facilities reserved by custom 
for white persons. Further, petitioners were welcomed as 
business invitees in all other departments of the store and 
could have purchased any part or all of more than ten 
thousand items which the store offered for sale.

3. The Court may have misapprehended that Section 
16-388, Code of Laws of South Carolina for 1952, was in­
voked against petitioners in this case solely for the purpose 
of preserving and furthering the custom of excluding 
Negroes from Lunch Counters in Greenville, South Carolina 
or segregating them in same, in violation of petitioners’ 
rights to due process of law and equal protection of the 
laws, protected by the Fourteenth Amendment to the United 
States Constitution.



61

4. The Court may have overlooked petitioners’ assertion 
that they were unwarrantedly penalized for exercising their 
freedom of expression in violation of the Fourteenth 
Amendment. The Court further overlooked the applica­
bility of Marsh v. Alabama, 326 U. S. 501, 90 L. Ed. 265, 
66 S. Ct. 276, and Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 
77, to this argument.
[fol. 70] 5. The Court may have overlooked petitioners’
assertion that in arresting and prosecuting petitioners, the 
State has either enforced or supported racial segregation 
in a place open to the general public, thereby infringing 
their rights under the Fourteenth Amendment to the United 
States Constitution. Petitioners, in their appeal, did not 
challenge the right of the store manager to select his cus­
tomers, but asserted that the State cannot implement and 
enforce segregation by direct action on the part of its 
police nor by statutory scheme. The record demonstrates 
that both forms of State action were present in this matter.

Conclusion
Wherefore, petitioners request they be granted a rehear­

ing in this case.
Columbia, South Carolina 
November 16,1961

Jenkins and Perry, Columbia, South Carolina, By: 
Matthew J. Perry; Willie T. Smith, Jr., Green­
ville, South Carolina, Attorneys for Petitioners.

[fol. 71]
Certificate to P etition for R ehearing

I, Harold R. Boulware, hereby certify that I am a prac­
ticing attorney of this Court and am in no way con­
nected with the within case. I further certify that I am 
familiar with the record of this case and have read the 
opinion of this Court which was filed November 10, 1961, 
and in my opinion there is merit in the Petition for Re­
hearing.

Harold R. Boulware
Columbia, South Carolina 
November 16,1961.



6 2

[fol. 72]
I n the S upreme Court of S outh Carolina

Order D enying P etition for R ehearing 
—November 30,1961

The Court neither overlooked nor misapprehended any 
of the facts set forth herein. Therefore the Petition is 
denied.

C. A. Taylor, C.J., G. Dewey Oxner, A.J., Lionel K. 
Legge, A.J., Joseph R. Moss, A.J., J. Woodrow 
Lewis, A.J.

[fol. 73]
I n the S upreme Court of the S tate of S outh Carolina

[Title omitted]
P etition for S tay of R emittitur

To the Honorable Claude A. Taylor, Chief Justice of the 
Supreme Court of South Carolina:

The petition of James Richard Peterson, Yvonne Joan 
Eddy, Helen Angela Evans, David Ralph Strawder, Harold 
James Fowler, Frank G. Smith, Robert Crockett, James 
Carter, Doris Delores Wright and Rose Marie Collins, 
respectfully shows:

1.
Petitioners have been convicted of the offense of tres­

pass after notice under Section 16-388, Code of Laws of 
South Carolina for 1952. Their sentences and convictions 
have been affirmed by the Supreme Court of South Carolina 
in an Opinion which was filed on November 10, 1961.

2.
Thereafter, petitioners requested rehearing of said cause 

in a Petition therefor dated November 16, 1961. Rehearing 
was denied on November 30, 1961.



63

3.
Petitioners are aggrieved with said decision and intend 

to petition the Supreme Court of the United States for a 
Writ of Certiorari in order that that Court can pass upon 
petitioners’ contention that their arrests and convictions 
[fol. 74] were in furtherance of a custom of racial segrega­
tion in violation of the Fourteenth Amendment to the United 
States Constitution.

4.
Under the Rules of the United States Supreme Court, 

petitioners have ninety (90) days after the rendering of 
the final judgment of this Court within which to file their 
Petition for Writ of Certiorari. Petitioners are therefore 
desirous of obtaining a stay of the sentences imposed upon 
them and a Stay of the Remittitur herein for a period of 
ninety (90) days after the rendering of the final judgment 
of this Court in order that they may have time within which 
to file said Petition for Writ of Certiorari.

5.
Counsel for the City of Greenville have agreed to a 

proposed Order, Staying the Remittitur for the requested 
period.

Wherefore, petitioners pray that execution of their sen­
tences he stayed and that Remittitur in this matter be 
stayed by order to this Honorable Court for a period of 
ninety (90) days after the final judgment of said Court in 
order that they may file in the United States Supreme Court 
a Petition for Writ of Certiorari.

Jenkins and Perry, Columbia, South Carolina, By: 
Matthew J. Perry; Willie T. Smith, Jr., Greenville, 
South Carolina, Attorneys for Petitioners.

December 1,1961



64

[fol. 75]
I n the S upreme Court of the S tate of S outh Carolina

[Title omitted]
Order S taying R emittitur—December 2,1961

On the 10th day of November, 1961, we issued an Opinion 
in the above case, affirming the judgment of the Greenville 
County Court which sustained the judgment of the Mu­
nicipal Court of the City of Greenville wherein appellants 
were convicted of violating Section 16-388, Code of Laws 
of South Carolina for 1952, namely, Trespass after Notice.

Thereafter, appellants petitioned this Court for a re­
hearing and, on November 30, 1961, we entered an Order, 
denying same.

Appellants have now indicated that they desire and in­
tend to file in the Supreme Court of the United States a 
Petition for Writ of Certiorari, seeking review of our 
judgment in said cause. Under the rules and decisions of 
the United States Supreme Court, they have ninety (90) 
days after the final judgment of this Court within which 
to file their Petition for Writ of Certiorari. The final 
judgment of this Court is the Order, denying rehearing. 
Department of Banking, State of Nebraska v. Pink, 63
S. Ct. 233, 217 U. S. 264, 87 L. Ed. 254. They desire a 
stay of the Remittitur and Sentences in this matter pending 
the filing of their petition for Writ of Certiorari in the 
United States Supreme Court and thereafter until said 
matter has been disposed of by that Court. It appears 
that the request for stay of remittitur and sentences is 
proper. Now, on motion of counsel for the appellants, by 
[fol. 76] and with the consent of counsel for the respondent,

It Is Ordered that the Remittitur and execution of the 
Sentences herein be stayed for a period of ninety (90) days 
after the day of the final judgment of this Court in order 
that they may file with the United States Supreme Court 
their Petition for W rit of Certiorari.

It Is Further Ordered that if a notice from the Clerk 
of the United States Supreme Court that the Petition for 
W rit of Certiorari has been filed in that Court is filed 
with the Clerk of the Supreme Court of South Carolina



65

within the time aforesaid, the stay of remittitur and execu­
tion of sentences herein shall continue in effect until final 
disposition of the case by the Supreme Court of the United 
States.
December 2d. 1961.

C. A. Taylor, Chief Justice.
We Consent: W. H. Arnold, H. F. Partee, Attorneys 

for Respondent.

[fol. 77] Clerk’s Certificate to foregoing transcript (omit­
ted in printing).

[fol. 78]
S upreme Court of the U nited S tates 

No. 750, October Term, 1961

J ames R ichard P eterson, et al., Petitioners, 
vs.

City of Greenville.

Order A llowing Certiorari—June 25,1962
The petition herein for a writ of certiorari to the Su­

preme Court of the State of South Carolina is granted, and 
the case is transferred to the summary calendar. The case 
is set for argument to follow No. 721.

And it is further ordered that the duly certified copy of 
the transcript of the proceedings below which accompanied 
the petition shall be treated as though filed in response to 
such writ.

Mr. Justice Frankfurter took no part in the considera­
tion or decision of this petition.









vhil il'^-uL nr
131 lie UNITED STATES.

OCTOBER TERM. 1961.

No. 721.

F. L. S H U TTLES W O R TH  and CHARLES BILLUPS, 
Petitioners,

vs.

C ITY  OF BIRMINGHAM,
Respondent.

BRIEF
On Behalf of Respondent to Petition for 

Writ of Certiorari.

W A TTS  E. DAVIS.
WILLIAM C. WALKER,
EARL McBEE,

600 City Hail Building, 
Birmingham, Alabama, 

Attorneys for Respondent.

St. Loris Law Pointing Co., I n c ., 415 N. Eighth Street. CEntral 1-4477?





INDEX.

Pago
Statement in opposition to question presented for re­

view ........................................    1
Statement in opposition to constitutional and statutory 

provisions involved ...........................   3
Statement in opposition to petitioners’ statement of. 

the case ....................................................................... 3
Argument:

Re: Lack of jurisdiction of the Court ......................  4
Re: Constitutional and statutory provisions involved 5
Re: Question presented ............................................... 8
Re: Petitioners’ reasons for granting the w r i t .......  l(i

Certificate of service ....................................................  19

Cases Cited.
Allen-Bradlev Local, etc., v. Wisconsin Employment 

Relations Board, 315 V. S. 740, at page 740, 02 
S. Ct. 820, at page 824, 86 L. Ed. 1154....................  6

Browder v. Gayle, 142 F. Supp. 707 ............................  17
Bullock v. U. S., 265 F. 2d 683, cert, denied 79 S. Ct.

1294, 1452, 360 U. S. 909, 932, 3 L. Ed. 2d 1260, re­
hearing denied 80 S. Ct. 46, 361 U. S. 855, 4 I.. Ed.
2d 95 ............................................    17

Crane v. Pearson, 26 Ala. App. 571, 163 So. 821 .........  6
Davis v. State, 36 Ala. App. 573, 62 So. 2d 224 .......... 11
Dudley Brothers Lumber Company v. Long, 109 So. 2d 

G84, 268 Ala. 565 ....................   15





11

Garner v. State of Louisiana, 82 S. f t . (1061) .7, 8,10, 15, IS 
Gibson v. Mississippi, 10 S. Ct. 004, 162 U. S. 363, 40 

L. Ed. 1073 ..................................................................  7
Hollo v. Brooks, 200 Ala. 486, °6 So. .*>41 ...................  6
Jones v. State, 174 Ala. 33, 57 So. 31, 32 .....................  11
Local No. 8-6, Oil, Chemical and Atomic Workers In­

ternational Union, AFL-CfO v. Missouri, 80 S. Ct.
391, 361 IT. S. 363, 4 L. Ed. 2d 373 ............................ 6

Martin v. Struthers, 310 U. S. 147, 63 S. Ct. 862, 87
L. Ed. 1313 ........................................................   17

McNulty v. California, 13 S. Ct. 050, 140 U. S. 643, 37 
L. Erl. 882 ..................................................................  6

National Labor Relations Board v. Fanstecl Metal­
lurgical Corp., 306 U. S. 240 ...................................10, 14

Ohio Bell Telephone Co. v. Public Utilities Commis­
sion, 301 U. S. 202, 302, 57 S. Ct. 724, 720, 81 L. Ed.
1003 .............................................................................  7,8

O’Neil v. Vermont, 12 S. Ct. 603, 144 U. S. 323, 36 
L. Ed. 450 ................................................................  6,7

Parsons v. State, 33 Ala. App. 300, 33 So. 2d 164 . . . .  11
Pruett v. State, 33 Ala. App. 401, 35 So. 2d 115 .........  11
Sehenck v. United States, 240 U. S. 47 ..................... 16,18
Swinea v. Florence, 28 Ala. App. 332, 183 So. 686 . . . .  6
Thompson v. City of Louisville, 80 S. Ct. 624, 625

(1060) ..........................................................................13,15
Thorington v. Montgomery, 13 S. Ct. 304, 147 U. S.

400, 37 L. Ed. 252 .....................................................  6
Williams v. Howard Johnson, 268 F. 2d 84 .).............  17

Statutes and Rules Cited.

Alabama Supreme Court Rule 1, Code of Alabama 
(1040), Title 7, Appendix ........................................  6



'



i : i

City Code of Birmingham (1944):
Section 269 ...................... .................................
Section 824 ........................................................
Section 1426 ....................................................

Code of Alabama (1940), Title 7, Section 223 
Code of Alabama (1940), Title 14, Section 14 ..
Supreme Court Rule 21 (1), 28 U. S. C. A........
Supreme Court Rule 24 (2), 28 IT. S. 0. A........
Supreme Court Rule 32 (1), 28 U. S. C. A.

10, 11, 13 
. . . 10,11 
. . . .  7
___  11
___ 4
. . . .  3
. . . .  4.3

i





SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1961.

No. 721.

F. L. SH U TTLESW O RTH  and CHARLES BILLUPS, 
Petitioners,

vs.

C ITY  OF BIRMINGHAM,
Respondent.

BRIEF
On Behalf of Respondent to Petition for 

Writ of Certiorari.

STATEMENT IN OPPOSITION TO QUESTION 
PRESENTED FOR REVIEW.

Petitioners present a single question for the review of 
this Court (p. 2) *

* Page references contained herein and preceded by the letter 
“p" designate pages in petitioners’ Petitions for Writ of Certiorari.

Page references contained herein and preceded by the letter “R” 
refer to pages in the R e c o r d s  of the proceedings below, which Rec­
ords have common page numbers.





This question is predicated upon the supposition that 
“ Alabama has convicted petitioners’’ of inciting or aid­
ing or abetting another to go or remain on the premises 
of another after being warned not to do so.

Petitioners then propose for review by the Court the 
question of whether, in convicting and sentencing the pe­
titioners, “ lias Alabama denied liberty, including free 
speech, secured by the due process clause of the Four­
teenth Amendment?’’

The State of Alabama is not a named party in the case, 
and so far as City of Birmingham, the respondent named 
in this cause, is aware, no effort has been exerted at any 
time to make the State of Alabama a party. Since “ Ala­
bama” was not a party to the case below, and is not a 
named party before this Court, the sole question presented 
here for review seems entirely and completely moot and 
ungermane, leaving thereby no question related to any 
events taking place in the courts below for review by this 
Court. The case below was a quasi-criminal proceeding 
wherein the City of Birmingham sought to enforce one of 
its local ordinances.

Petitioners take occasion to also predicate their ques­
tion presented for review (p. 2) upon the hypothesis that 
“ a Birmingham ordinance requires racial segregation in 
restaurants.”

The petitioners’ reference to such an alleged ordinance 
is mentioned here before this Court for the very first time 
since the initial filing of the complaint by respondent in 
the county circuit court below, and is not an appropriate 
matter to be considered here under a petition seeking writ 
of certiorari.





— 3 —

STATEMENT IN OPPOSITION TO CONSTITUTIONAL 
AND STATUTORY PROVISIONS INVOLVED.

Petitioners contend that a section 3G9 of the 1944 Gen­
eral Code of City of Birmingham is one of three ordinances 
involved in this proceeding.

As mentioned above, this alleged ordinance has been 
injected into this ease for its first and only time in the 
petition for writ now before this Court, and is not a proper 
subject for consideration by the Court. The petition for 
writ of certiorari should seek only a review of what has 
transpired below and is not properly an arena for intro­
ducing new defenses which were not exhausted in the state 
courts.

STATEMENT IN OPPOSITION TO PETITIONERS’ 
STATEMENT OF THE CASE.

Respondent wishes to supplement petitioners’ statement 
of the case by pointing out to the Court additional perti­
nent testimony which, though brief, is not in petitioners’ 
statement:

“ . . . Rev. Billups came to his school, Daniel Payne 
College, in a car and carried him (Davis) to Rev. 
Shuttlesworth’s house” (R. 2S).

The record further shows “ that in response to Rev. 
Shuttlesworth asking for volunteers to participate in the 
sit down strikes that he (Davis) volunteered to go to 
Pizitz at 10:30 and take part in the sit down demonstra­
tions” (R. 29).

As noted by petitioners, Billups was present at the meet­
ing and others in attendance at the meeting at Rev. Shut­
tlesworth’s house participated in sit down demonstrations 
the day following the meeting (p. 4).





ARGUMENT.

Re: Lack of Jurisdiction of the-Court.
Respondent insists the Court is without jurisdiction to 

entertain the “ petition for writ of certiorari" in this 
cause, for that the petition was not served upon either of 
the counsel of record for respondent, namely, Watts E. 
Davis or Bill Walker, later referred to as William C. 
Walker, whose names clearly appear upon the face of the 
title pages appearing in each of the respective records now 
before the Court in this cause as the only counsel of 
record.

These two cases below, before the Alabama Court of Ap­
peals, are reported respectively in 134 So. 2d '213 and 134 
So. 2d 215; and, before the Supreme Court of Alabama, in 
134 So. 2d 214 and 134 So. 2d 215. Each of the four re­
ported cases show “ Watts E. Davis and William C. Walker 
for Appellee".

The proof of service, Form 75 (8-61-10M), as supplied 
by the Clerk and subsequently fded with the Clerk of this 
Court, demonstrates clearly that notice of the filing of the 
petition, the record and proceedings and opinion of the 
Court of Appeals of Alabama and of the Supreme Court 
of Alabama, was served upon “ Hon. MacDonald Gallion, 
Mr. James M. Breckenridge". Service of the notice, which 
is required by Supreme Court Rule 21 (1), 2S U. S. C. A.,1 
to be made as required by Supreme Court Rule 33 (1), 28 
IT. S. C. A.,2 was attempted to be accomplished by use of

1 The pertinent provision of Supreme Court Rule 21 (1) reads, 
“Review on writ of certiorari shall be sought by filing with the 
clerk, with proof of service as required by Rule 33. forty printed 
copies of a petition, . .

- The pertinent provision of Supreme Court Rule 33 reads, 
“Whenever any pleading, motion, notice, brief or other document is 
required by these rules to be served, such service may be made per-

— 4 —

I



■



the mail. Supreme Court Rule 33 (1), 28 IT. S. 0. A., re­
quires that service by mail shall be addressed to counsel
of record (emphasis supplied) at his postofTice address, 
which, as shown supra, was not done in this case.

It is your respondent’s position that the petitioners’ 
failure to comply with the reasonable rules of this Court 
in the above regard, whether done through carelessness 
or indifference to the rules of this Court, leaves the re­
spondent without notice of the proceedings pending in this 
cause, as required by law, and that the Court is without 
jurisdiction to proceed without the necessary parties to 
the writ before the Court. The petition for writ seeking 
certiorari should therefore he dismissed or denied.

The rules of this Court, Supreme Court Rule 24 (2),:! 
28 U. S. C. A., do not provide for a separate motion to dis­
miss a petition for writ of certiorari, and absent the rem­
edy of any such motion, respondent prays that nothing 
contained in its reply brief shall be considered as a waiver 
of its objection presented here to the jurisdiction of the 
Court.

ARGUMENT.

Re: Constitutional and Statutory Provisions Involved.

It is contended by petitioners that “ Section 369 (1944)’’ 
of the respondent’s city code is involved in the case now 
before the Court.

sonally or by mail on each adverse party. If personal, it shall con­
sist of delivery-, at the office of counsel of record, to counsel or a 
clerk therein. If by' mail, it shall consist of depositing the same 
in a United States post office or mail box. with first class postage 
prepaid, addressed to counsel of record at his post office address

:I ‘‘No motion by a respondent to dismiss a petition for writ of 
certiorari will be received. Objections to the jurisdiction of the 
court to grant writs of certiorari may be included in briefs in opposi­
tion to petitions therefor."





— fi­

l’d  it ioiuM-s contend that the ordinance requires the sepa­
ration of white and colored persons in eating establish­
ments.

Assuming such to he true, the propriety of suggesting 
the ordinance for the first time in this Court is completely 
out of harmony with past decisions of this Court. In the 
case of Local No. 8-6, Oil, Chemical and Atomic Workers 
International Union. AFL-CIO v. Missouri, 80 S. Ct. 391, 
361 U. S. 363, 4 L. Ed. 2d 373, this Court said, “ Constitu­
tional questions will not be dealt with abstractly. * * * 
They will be dealt with only as they are appropriately 
raised upon a record before us. * * * Xor will we assume 
in advance that a State will so construe its law as to bring 
it into conflict with the federal Constitution or an act of 
Congress.” The foregoing quote was adopted from the 
earlier case decided by this Court in Allen-Bradley Local, 
etc. v. Wisconsin Employment Relations Board, 315 U. S. 
740, at page 746, 62 S. Ct. 820, at page 824, 86 L. Ed. 1154.

Tt has been stated under Alabama Supreme Court Rule 1, 
Code of Alabama (1940), Title 7, Appendix, in assigning 
error on appeal, “ it shall be sufficient to state concisely, 
in writing, in what the error consists” .

It has been uniformly held under Alabama Supreme 
Court decisions that “ no question is reserved for decision 
which is not embraced in a due assignment of error” . 
Holle v. Brooks, 209 Ala. 486, 96 So. 341; Swinea v. Flor­
ence, 28 Ala. App. 332, 183 So. 686; Crane v. Pearson, 26 
Ala. App. 571, 163 So. 821.

This Court has many times repeated its established 
doctrine that, “ A decision of a state court resting on 
grounds of state procedure does not present a federal ques­
tion.” Thorington v. Montgomery, 13 S. Ct. 394, 147 U. S. 
490, 37 L. Ed. 252; McNulty v. California, 13 S. Ct. 959, 
149 U. S. 645, 37 L. Ed. 882; O’Neil v. Vermont, 12 S. Ct.

i;



.



693, 144 U. S. 323, 36 L. E<1. 450: Gibson v. Mississippi, 10 
S. ft. 004, 102 U. S. 505, 40 L. Ed. 1075.

Tho records before this Court clearly show that peti­
tioners have never placed before tho state courts the mat­
ter of any such ordinance requiring separation of the 
races although lengthy and detailed pleadings were inter­
spersed throughout all of the student sit-in cases (Gober 
et al., now here in Xo. 004), as well as the instant case.

At best, as argued in the Gober case, the question of 
judicial notice by the court below might conceivably find 
its way into the controversy.

Bearing in mind that judicial notice is a mle of evidence 
rather than a rule of pleading, the suggested ordinance, 
to have served some defensive purpose (see Code of Ala­
bama (1940), Title 7, Section 225), would of necessity have 
had to be incorporated into a plea or answer to the com­
plaint. If then, after the supposed ordinance was properly 
made an issue in the trial below petitioners sought judi­
cial notice by the Court, rules of evidence making it un­
necessary to prove by evidence the existence of such an 
ordinance would have been entirely applicable. The record 
before the Court clearly demonstrates, of course, that pe­
titioners did not place the question of such ordinance be­
fore the lower court, nor was any assignment of error di­
rected to the proposition before the state appellate court.

This question is not a new one for this Court. In the 
recent case of Gamer v. State of Louisiana, 82 S. Ct. 
(1961), Mr. Chief Justice Warren, in delivering this 
Court’s opinion, stated, “ There is nothing in the records 
to indicate that the trial judge did in fact take judicial 
notice of anything. To extend the doctrine of judicial 
notice to the length pressed by respondent * * * would bo 
‘to turn the doctrine into a pretext for dispensing with a 
trial’ ” , eiting Ohio Bell Telephone Co. v. Public Utilities





— 8 —

Commission, 301 U. S. 292, 302, 57 S. Ct. 724, 729, SI L. Ed. 
1093. The foregoing opinion further recited the inherent 
danger of a court taking upon itself the prerogative of 
unsolicited judicial notice in tho absence of inserting same 
into the record by saying a party, “ * * * is deprived of 
an opportunity to challenge the deductions drawn from 
such notice or to dispute the notoriety or truth of the facts 
allegedly relied upon.”

In light of the Garner opinion, supra, and in light of 
the fact that the record discloses nowhere that the court 
below, either upon solicitation of counsel or otherwise, 
took or refused to take judicial notice of any such ordi­
nance, and further, that no assignment of error before 
the state appellate court makes any reference whatever 
to the existence of such an ordinance, thereby affording 
the state appellate court an opportunity to rule on any 
question related to the ordinance, your respondent re­
spectfully urges that no constitutional or other questions 
dependent upon such an ordinance are properly present­
able before this Court for review.

A R G U M EN T.

Re: Question Presented.
Petitioners submit one question for review (p. 2) by 

this Court.
The question is predicated upon the assumption of fact 

that “ Alabama has convicted petitioners” for inciting, 
aiding or abetting another person to remain upon the 
premises of another after being warned not to do so; and 
upon the further assumption of fact that there was no 
evidence that either of the petitioners “ persuaded anyone 
to violate any law” (ibid).

Following the foregoing assumptions of fact, petitioners 
present for review the following question:



.

'



“ In convicting and sentencing petitioners respec­
tively to 180 and 00 days hard labor, plus fines, has 
Alabama denied liberty, including freedom of speech, 
secured by the due process clause of the Fourteenth 
Amendment ?”

The City of Birmingham was the plaintiff in the trial 
court below (R. 2). The City handled the prosecution of 
the petitioners in the trial court and represented the city 
in the appellate courts of Alabama. So far as the record 
discloses, and so far as the respondent is aware, the State 
of Alabama has never been a party to any phase of this 
proceeding nor has the State of Alabama at any time 
interceded in the matter in any manner disclosed by the 
record. It would therefore appear that the only question 
presented to this Court for review is a moot one.

As to the proposition that there was “ no evidence” 
(p. 2) to support the conviction of petitioners, your re­
spondent is unwilling to concede this to be true.

The testimony offered by respondents in the trial below 
was neither disputed by petitioners nor was same sub­
jected to any cross-examination (R. 31).

Petitioners present extracts of the testimony below in 
Appendix to their petition (pp. 13a-16a). In brief, the 
evidence is shown to be as follows: A student (Gober) 
went to Rev. Shuttlesworth’s house on March 30th (p. 
13a); a student (Davis) went to the house with Rev. 
Billups, who came to his school in a car and carried him 
there (p. 15a); Re\n Shuttlesworth and Rev. Billups wore 
both present at Rev. Shuttlesworth’s house (p. 14a); that 
there was a meeting in the living room and that Rev. 
Shuttlesworth participated in the discussion about sit- 
down demonstrations and Rev. Billups was at this meet­
ing also (ibid); that when the student (Davis) arrived 
at the meeting there were several people there including





— 30 —

Row Shuttlesworth ami a number of other students (p. 
]5a); Rev. Shuttlesworth asked for volunteers to par­
ticipate in the sit-down strikes (ibid); a student (Davis) 
volunteered to go to Pizitz (a department store in the 
City of Birmingham) at 10:30 and take part in the sit- 
down demonstrations (ibid); that Rev. Shuttlesworth an­
nounced at that time that he would get them out of jail 
(pp. 15a, 16a); both James Albert Davis and James Gober 
did participate in sit-down demonstrations on March 31, 
1960, as well as other students who attended the meeting 
at Rev. Shuttlesworth’s house on March 30, 1960 (p. 16a).

The foregoing is the evidence contained in the record 
before the Alabama Court of Appeals, and in the petition 
under consideration.

The opinion of the state court of appeals (pp. la, 2a) 
stated (p. 2a), “ A sit-down demonstration being a form 
of trespass after warning, denotes a violation of both 
State law and especially of Section 1436 of the City ('ode, 
supra. * * * There is a great deal of analogy to the sit- 
down strikes in the automobile industry referred to in 
National Labor Relations Board v. Fansteel Metallurgical 
Corp, 306 V.  S. 240.”

Mr. Chief Justice "Warren, in the Court’s opinion in 
Garner v. State of Louisiana, 82 S. Ct. 248, 253 (1961), 
stated, “ We of course are bound by a state’s interpreta­
tion of its own statute and will not substitute our judg­
ment for that of the state’s when it becomes necessary to 
analyze the evidence for the purpose of determining 
whether that evidence supports the findings of a state 
court.”

The gravamen of the offense (City Code,. Section 824) 
charged against petitioners was that petitioners incited, 
aided or abetted another to violate the city law or ordi­
nance. The law or ordinance which petitioners were





charged with inciting another to violate was Section 1436 
of the City Code, which latter section makes it unlawful 
to remain on the premises of another after warning not 
to do so.

The evident objective of Section S24 of the City Code 
was the curtailment of City law violations by making it 
unlawful to incite or assist others to violate city laws.

While there has been no occasion for the Alabama ap­
pellate courts to interpret Section 824 of the City’s Code, 
a very similar state statute, Section 14 of Title 14, Code 
of Alabama, 1940, contains an aiding and abetting statute 
very similar to the city’s law, which says in part as fol­
lows: “ * * * And all persons concerned in the commission 
of a crime, whether they directly commit the act consti­
tuting the offense, or aid or abet (emphasis supplied) its 
commission, though not present, must hereafter be in­
dicted, tried and punished as principals, as in the case of 
misdemeanors.”

The foregoing state statute has been construed by the 
state courts on many occasions. Davis v. State, 36 Ala. 
App. 573, 62 So. 2d 224, states, “ The words ‘aid and 
abet’ comprehend all assistance rendered by acts or words 
of encouragement or support. . . . Nor is it necessary to 
show prearrangement to do the specific wrong complained 
of.” (Emphasis supplied.)

In Pruett v. State, 33 Ala. App. 491, 35 So. 2d 115, the 
court said, “ Aid and abet comprehend all assistance ren­
dered by acts or words of encouragement * * citing 
Jones v. State, 174 Ala. 53, 57 So. 31, 32.

Alabama has further ruled, “ The participation in a 
crime and the community of purpose of the perpetrators 
need not be proved by direct or positive testimony, but 
may be inferred from circumstantial evidence.”  Parsons v. 
State, 33 Ala. App. 309, 33 So. 2d 164.



'



— 12

“While the state statute differs from the city law pri­
marily in the fact that the word “ incite” is not found in 
the state statute, the net effect of the inclusion of the 
word “ incite” in the city law could do no less than 
strengthen and enlarge the scope of the city’s law.

The salient features of the state decisions, supra, are 
that acts or words of encouragement are sufficient to bring 
an offender within the scope of the statute; that it is not 
necessary to show prearrangement to do the specific wrong 
complained of; and, that the community of purpose may be 
inferred from circumstantial evidence.

As to whether there is any evidence in the record to dis­
close that petitioners did incite or aid others to violate a 
city law, the petition admits in a summary of the evidence 
(p. 4), and in appendix (p. 14a), that a meeting was held 
at the home of Rev. Shuttlesworth; that Rev. Billups had 
driven one student to the meeting and was present during 
the meeting (p. 15a), at which meeting other students were 
in attendance, and that after one student volunteered to 
go to Pizitz at a certain hour, a list was made (ibid). The 
sit-downs were discussed at the meeting (p. 14a); Rev. 
Shuttlesworth made the announcement “ that he would get 
them out of jail”  (p. 16a), and that other students at the 
meeting participated in the sit-downs (ibid).

It is most difficult in view of the foregoing evidence to 
agree with petitioners’ predicate of fact, upon which they 
base their one question for review by this Court (p. 2), 
namely, that there was “ no evidence” upon which to rest 
the convictions of the petitioners in the trial court below. 
Every conceivable element of the offense of inciting the 
students to go upon the premises of another and partici­
pate in sit-downs is established by the evidence as admit­
ted in the petition (supra) and as shown in the record. 
The sit-downs were prearranged, volunteers were sought, 
and the volunteers were promised they would be released



.

.



from jail. Xo other rational inference could be drawn from 
the promise of release from jail than that the volunteers 
were to continue their sit-downs on the premises of others 
until they were arrested for trespass, for under the re­
spondent’s general City Code there was no other punitive 
provision in the code under which they could he arrested 
and jailed. Petitioners assert the respondent has a segre­
gation ordinance, which is copied into their petition as 
Section 369 (144) (p. 3), which has already been discussed 
here at length, which petitioners say requires restaurant 
owners or operators to make certain provisions for sepa­
ration of the races in their eating establishments. Cer­
tainly the students could not have been arrested under 
any such ordinance as this, for, as shown in the petition 
(ibid), it only proposes a burden upon the person who 
“conducts” the restaurant and imposes no sanction or pen­
alty upon would be customers in the eating establishments. 
There is no evidence in the record that the-students were 
boisterous or obtrusive in their conduct so as to create a 
breach of the peace.

The solicitation of Rev. Shuttlesworth for volunteers for 
the sit-downs and the promise to get them out of jail 
(supra) left the state court no alternate but to reason­
ably conclude from the evidence that the sit-down demon­
strators were to trespass and be arrested.

In Thompson v. City of Louisville, 80 S. Ct. 624, 625 
(I960), cited by petitioners, this Court said, ‘‘Decision on 
this question turns not on the sufficiency of the evidence, 
but on whether this conviction rests upon any evidence at 
all.”

In view of the evidence above outlined, the attempt by 
petitioners to parallel the instant case with the Thompson 
case, supra, appears highly incongruous.

It must also be remembered that the same trial court 
which rendered judgment against these two petitioners had



.



14 —

before it for consideration and the rendition of judgment, 
ten eases involving trespasses committed by the sit-down 
demonstrators who were counseled by Rev. Shuttlesworth, 
ail of whom were sentenced together with these petitioners 
in a common sentencing proceeding (R. Mo-39). The ten 
cases (Gober et al., now here in No. 694), involving tres­
pass after warning, together with the two instant cases, 
all involved common counsel and developed out of near 
identical circumstances occurring in different stores. If, 
indeed, the trial court had no knowledge or concept of the 
meaning of the term “ sit-down demonstration” , after hav­
ing just completed hearing ten cases involving nothing but 
“ sit-down” cases, it would of necessity have to be assumed 
that the trial judge was something more than naive. In 
context with the promised release from jail (pp. 4, 15a, 
16a), there was only one inescapable interpretation which 
the trial court could place upon the term “ sit-down dem­
onstrations” and that was—a device of remaining on an­
other’s premises after being told to leave, as in Fansteel, 
supra.

Not to be overlooked is the matter of how the question 
of the sufficiency of the evidence was raised in the state 
court. Petitioners’ motion to exclude the evidence, ground 
No. 4 (R. 6), in attacking the sufficiency of the evidence, 
alleged as follows:

“ 4. The evidence against the defendant, a Negro, 
in support of the charge of his violation of 824 the 
General City Code of Birmingham of 1944, clearly in­
dicates (emphasis supplied) that those persons al­
leged to have acted as a result of the aiding and abet­
ting of the defendant, had accepted an invitation to 
enter and purchase articles in the various department 
stores in the City of Birmingham, stores open to the 
public, but had not been allowed to obtain food service 
on the same basis as that offered white persons, be-

i





— 15 —

cause of their race or color; and, that in furtherance 
of this- racially discriminatory practice ot the various 
department stores (emphasis supplied) in the City of 
Birmingham, the defendant was arrested. * * *”

In the foregoing motion to exclude the evidence (R. G), 
which motion is not reviewable by the state appellate 
court, Dudley Brothers Lumber Company v. Long, 109 
So. 2d 684, 2GS Ala. 5G5, the petitioners themselves have 
interpreted the evidence in the trial below as being in­
clusive of the activities of the demonstrators in the de­
partment stores, in adopting the language (R. G), “ The 
evidence against the defendant(s), a Xegro, in support 
of the charge of violation of 824 the General City Code 
of Birmingham of 1944, clearly indicates (emphasis sup­
plied) that those persons alleged to have acted as a re­
sult of the aiding and abetting of the defendant(s) had 
accepted an invitation to enter and purchase articles in 
the various department stores * * * ” , etc., and proceeds 
then to state that because of the discrimination of the 
“various department stores” the defendants were subse­
quently arrested (ibid).

In conclusion, on the subject of whether there was “ any 
evidence” , Gamer and Thompson; supra, to support the 
state court’s finding of guilt, your respondent strongly 
urges that eveiy element of the offense of violating Section 
824 of the General City Code of Birmingham of 1944 has 
been more than adequately substantiated by the evidence 
presented below as shown in the record and petition. 
To hold that there was no evidence, as contended by 
petitioners, to support the conviction wouhl, as stated by 
Mr. Justice Harlan in Gamer v. State of Louisiana, 82 S. Ct. 
248, 265, “ * * * in effect attribute(s) to the (Louisiana)
Supreme Court a deliberately unconstitutional decision 
• • # > >





ARGUMENT.

Re: Petitioners’ Reasons for Granting the Writ,

Petitioners’ argument concerning reasons for granting 
the writ should, of course, he confined to their “ Question 
Presented” (p. 2) for the review of the Court, the sub­
stance of which is, “ * * * has Alabama denied liberty, 
including freedom of speech, secured by the due process 
clause of the Fourteenth Amendment?”

For very obvious reasons, petitioners have not elabo­
rated upon the rights of property owners as guaranteed 
under the Fifth and Fourteenth Amendments to the Con­
stitution.

Petitioners concede that the doctrine of free speech 
protection has many limitations and cite well known au­
thority in support thereof (p. 7), perhaps the most famous 
of which is Schenck v. United States, 249 U. S. 47. As 
the Court well knows, the defendant in this case was con­
victed for mailing circulars during World War I, which 
circulars were found to be detrimental to this country’s 
war effort. On the circular, among other things, were the 
words, “ Assert Your Rights” , and described arguments 
in support of the war effort “ as coming from cunning 
politicians.” The right of free speech was not upheld by 
this Court because a danger to the substantive rights of 
others was involved.

In the instant cases, petitioners claim they were assert­
ing their rights in seeking volunteers to test the sub­
stantive rights of private property owners, or, as they 
express it, to perform “ sit-down demonstrations” (p. 8), 
which are commonly known to be a sitting upon the 
premises of another and refusing to leave until they 
become trespassers and are arrested. Re%r. Shuttles-

- 1 6  —





worth’s promise to froo the demonstrators from jail con­
clusively establishes this fact. Attention is also invited 
to this fact as borne out in the ten cases involving the 
demonstrators now here in Gober, et al., before the Court 
under No. HD4. The demonstrators in Gober (Parker, R. 
21; West, It. 18) said “ they were not going to leave” ; a 
demonstrator (Gober, R. 39; Davis, R. 40) was quoted as 
saying “ they were instructed to go into the store and sit 
down at a white lunch counter, and that they would 
probably be or would be asked to leave, and not to leave 
hut remain there until the police arrested them and took 
them out” ; an assistant store manager (Parker, R. 23; 
West, R. 20) quoted demonstrators as saying, “ We have 
our rights,” when told to leave.

The inciting of this type of demeanor is what petitioners 
refer to as “ constitutionally protected free expression” 
(p. 10).

This Court made it clear in Martin v. Struthers, 319 
U. S. 147, 63 S. Ct. 862, 87 L. Ed. 1313, that, “ Tradition­
ally the American law punishes persons who enter onto 
the property of another after having been warned to keep 
off.”

In Browder v. Gayle, 142 F. Supp. 707, it is clearly stated 
that individuals may elect persons with whom they will do 
business unimpaired by the Fourteenth Amendment.

The case of Williams v. Howard Johnson, 268 F. 2d 845, 
states clearly that restaurants not involved in interstate 
commerce are “ at liberty to deal only with such persons 
as it may elect.”

In the case of Bullock v. U. S., 265 F. 2d 683; cert, denied 
79 S. Ct. 1294, 1452, 360 U. S. 909, 932, 3 L. Ed. 2d 1200; 
rehearing denied, 80 S. Ct. 46, 361 U. S. 855, 4 L. Ed. 2d 95, 
it was emphasized that, “ The right of free speech is not 
absolute and this amendment to the Federal Constitution

— 1 7 -





does not confer the right to persuade others to violate the
law.” (Emphasis supplied.)

The evident intent in the meeting sponsored and par­
ticipated in by Rev. Billups and Rev. Shuttlesworth was 
to determine whether private ownership and control of 
property was to endure in this country or whether the 
power of a large minority political block could overrule 
this traditional heritage of a free enterprise system.

Protection of one’s property under the Fifth and Four­
teenth Amendments are “ substantive” rights and any 
threat to this substantive right presents a “ clear and 
present danger,” Schenck v. United States, supra.

Whatever may or may not he morally right in the use 
of one’s own property, sit-down demonstrations have no 
place there if not consented to by the owner, as stated in 
Garner, supra, in the opinion delivered hv Mr. Justice 
Harlan; and whether the act involves racial intolerance, 
prejudice or bias is not of concern under the Fourteenth 
Amendment, where the property is private. See Mr. Jus­
tice Douglas’ concurring opinion in Garner, supra.

In conclusion, and for the foregoing reasons, it is re­
spectfully submitted that the petition for writ of certio­
rari should he denied.

Respectfully submitted,

WATTS E. DAVIS,

WILLIAM C. WALKER,

EARL McBEE,
(500 City Hall Building, 

Birmingham, Alabama, 
Attorneys for Respondent.

—  1 8  —





SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 19(51.

F. L. SIIUTTLESWORTH ami CHARLES 
BILLUPS,

Petitioners,
vs.

CITY OF BIRMINGHAM,
Respondent. 

Certificate of Service.

► No. 721.

I, Earl McBee, one of the Attorneys for Respondent, 
City of Birmingham, and a member of the Bar of Thi 
Supreme C^urt of the United States, hereby certify that
on the . $  .T.  day of March, 1962, I served a copy of Brief 
on behalf of respondent to Petition for Writ of Certiorari, 
in the above styled and numbered cause, on Jack Green­
berg and on Constance Baker Motley, Attorneys for 
Petitioners, by depositing the same in a United States Post 
Office or mail box, with air mail postage prepaid, ad­
dressed to them at their post office address, namely, 10 
Columbus Circle, New York 19, New York; and on the 
following respective Attorneys of Record for Petitioners 
whose addresses are known to Respondent by depositing 
the same in a United States Post Office or mail box, with 
first Hass postage prepaid, addressed to Arthur T). Shores, 
1527 5th Avenue, North, Birmingham, Alabama; Orzcll 
Billingsley, Jr., 1630 4th Avenue, North, Birmingham, 
Alabama; Peter A. Hall, Masonic Temple Building, Bir­
mingham, Alabama; Oscar W. Adams, Jr., 1630 4th 
Avenue, North, Birmingham, Alabama; and J. Richmond 
Pearson, 415 North 16th Street, Birmingham, Alabama.

. • ...........

Earl McBee,
Attorney for Respondent.





I n  the

jjpuprrmr (tart nf tbr InitrJi Stairs
October T erm, 1961 

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

F. L. S huttlesworth and Charles B illups,

Petitioners,
—v.—

City of B irmingham.

PETITION FOR WRIT OF CERTIORARI TO THE 
COURT OF APPEALS OF ALABAMA

J ack Greenberg 
Constance B aker Motley 

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
Orzell B illingsley 
P eter A. H all 
Oscar A dams 
J. R ichmond P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners

Leroy D. Clark 
James M. N abrit, III  

Of Counsel





TABLE OF CONTENTS
PAGE

Citation to Opinions Below ............................................  1

Jurisdiction ....................................................................... 1

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

Constitutional and Statutory Provisions Involved .....  3

Statement of the Case ............................................... „... 3

How the Federal Questions Were Raised and Decided 
Below ....................................    5

Reasons for Granting the W rit .....................................  7

Conclusion ......................................................................... 12

T able of A uthorities Cited

Cases

Abie State Bank v. Bryan, 282 U. S. 765, 777, 778 ....... 10
Adams v. Saenger, 303 U. S. 5 9 ............................. .......  10

Briscoe v. State of Texas, 341 So. 2d 432 ......................  9
Burstyn v. Wilson, 343 U. S. 495 ...................................  11

Chaplinsky v. New Hampshire, 315 U. S. 568 ..............  11
Connally v. General Construction Co., 269 U. S. 385 .... 11 
Cox v. New Hampshire, 312 U. S. 569 .......................... 7

Garner v. Louisiana, 7 L. ed. 207 (1961) ......................  9

Johnson v. State of Texas, 341 So. 2d 434 ....................  9
Junction R.R. Co. v. Ashland Bank, 12 Wall. (U. S.)

226, 230 ..........................................................................  10



11

PAGE
King v. City of Montgomery,----- Ala. -------, 128 So.

2d 341 ............................................................................ 9
Kovacs v. Cooper, 336 U. S. 7 7 ......................................  7

Monk v. Birmingham, 87 F. Supp. 538 (N. D. Ala. 1949), 
afPd 185 F. 2d 859, cert, denied 341 U. S. 940 ..........  10

Railway Mail Ass’n v. Corsi, 326 U. S. 88, 98 (Justice
Frankfurter’s concurring opinion) ............................. 10

Rucker v. State of Texas, 341 So. 2d 434 .....................  9

Saia v. New York, 334 U. S. 558 ....................................  11
Schenck v. United States, 249 U. S. 4 7 .........................7,11
Shell Oil v. Edwards, 263 Ala. 4, 9, 88 So. 2d 689 (1955) 10 
Smiley v. City of Birmingham, 255 Ala. 604, 605, 52 

So. 2d 710 (1951) .........................................................  10

Terminiello v. Chicago, 337 U. S. 1, 4 ...........................  7
Thompson v. City of Louisville, 326 U. S. 199.............. 8
Tucker v. State of Texas, 341 So. 2d 433 ...................... 9

Winters v. New York, 333 U. S. 507 ............................... 11

Statutes
Fourteenth Amendment to the Constitution of the 

United States, Section 1 ............................................ 3
United States Code, Title 28, §1257(3) .........................  2

General Code of Birmingham of 1944 .........................  3

General City Code of Birmingham
§824 ............................................................................ 5
§1436 .......................................................................... 5,8

Other Authorities

Pollitt, Duke L. J., Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 315 (1960) .. 8,9



Ill

INDEX TO APPENDIX
PAGE

Opinion of Cates, Presiding Judge .............................  la

Order of Affirmance in Shuttlesworth Case..................  3a

Order Denying Application for Rehearing in Shuttles­
worth C ase..................................................................... 4a

Order of Filing in Shuttlesworth Case ........................ 6a

Order Denying Petition for W rit of Certiorari to the 
Court of Appeals in Shuttlesworth C ase..................  7a

Opinion of Price, Presiding Judge in Billups C ase..... 8a

Opinion in Billups Case...................................................  9a

Order Denying Application for Rehearing in Billups 
Case ...............................................................................  10a

Order of Filing in Billups C ase..................................... 11a

Order Denying Petition for W rit of Certiorari to the 
Court of Appeals in Billups Case .............................  12a

Extracts From Transcript of Proceedings ....................  13a





I n the

&uprpm p Qlourt n f %  -Untteii S ta te s
October Term, 1961 

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

F. L. Shuttlesworth and Charles Billups,

Petitioners,
—v.—

City of Birmingham.

PETITION FO R W RIT OF CERTIORARI TO THE  
COURT OF APPEALS OF ALABAMA

Petitioners pray that a writ of certiorari issue to re­
view the judgments of the Court of Appeals of Alabama, 
rendered on May 30,1961.

Citation to Opinions Below

The opinions of the Alabama Court of Appeals are re­
ported in 134 So. 2d 213 and 134 So. 2d 215 and are set 
forth in the Appendix hereto infra, pp. la, 2a and 8a. The 
denial of certiorari by the Supreme Court of Alabama is 
reported at 134 So. 2d 214 and 134 So. 2d 215.

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30,1961 (R. 44).* Appendix pp. 3a, 9a, infra.

* There are separate records for the Shuttlesworth and Billups 
cases. References to both records were made by a single citation 
where the page numbers are the same.



2

Application for rehearing before the Court of Appeals of 
Alabama was denied on June 20, 1961 (Shuttlesworth E. 
48, 49; Billups R. 47). A petition to the Supreme Court of 
Alabama for W rit of Certiorari was denied on September 
25, 1961, and application for rehearing was overruled on 
November 16, 1961 (Shuttlesworth page following R. 49; 
Billups, page following R. 47). The jurisdiction of this 
Court is invoked pursuant to 28 United States Code, §1257
(3), petitioners having asserted below, and asserting here, 
the deprivation of his rights, privileges and immunities 
secured by the Constitution of the United States.

Question Presented

Alabama has convicted petitioners of “incit[ing] dr aid- 
ting] or abet [ting] another person to go or remain on 
the premises of another after being warned . . . ”. The 
record showed essentially that petitioner Shuttlesworth 
“asked for volunteers to participate in the sit-down demon­
strations” and that petitioner Billups was present at this 
request. There was no evidence that either persuaded any­
one to violate any law, or that anyone following petitioners’ 
suggestions did violate any law, valid under the Fourteenth 
Amendment to the United States Constitution. A Birming­
ham ordinance requires racial segregation in restaurants.

In convicting and sentencing petitioners respectively to 
180 and 30 days hard labor, plus fines, has Alabama denied 
liberty, including freedom of speech, secured by the due 
process clause of the Fourteenth Amendment1?



3

This case involves the following constitutional provision:

Section 1 of the Fourteenth Amendment to the Constitu­
tion of the United States.

The case also involves the following provisions of the 
General Code of Birmingham of 1944:

“Section 824. It shall be unlawful for any person to 
incite, or aid or abet in, the violation of any law or 
ordinance of the city, or any provision of state law, 
the violation of which is a misdemeanor.”

“Section 1436 (1944), After Warning. Any person 
who enters into the dwelling house, or goes or remains 
on the premises of another, after being warned not to 
do so, shall on conviction, be punished as provided in 
Section 4, provided, that this Section shall not apply 
to police officers in the discharge of official duties.” 

“Section 369 (1944), Separation of races. It shall 
be unlawful to conduct a restaurant or other place for 
the serving of food in the city, at which white and 
colored people are served in the same room, unless 
such white and colored persons are effectually sepa­
rated by a solid partition extending from the floor 
upward to a distance of seven feet or higher, and un­
less a separate entrance from the street is provided 
for each compartment” (1930, Section 5288).

Statement of the Case

These cases were tried in the Circuit Court of Jefferson 
County sitting without a jury (R. 13) on evidence given 
by a City of Birmingham detective who testified concerning 
"’hat had been placed in evidence at the trial of petitioner

Constitutional and Statutory Provisions Involved



4

Shuttlesworth for this alleged crime in the City Recorder’s 
Court, April 1, 1960. The record of the proceedings (E. 
13-34) is for the greatest part taken up by objections to 
the hearsay nature of the evidence and objections to com­
pelling testimony from defendants in the trespass cases 
themselves. (The former objections were overruled; the 
latter sustained.) The relevant testimony admitted into 
evidence is, however, extremely brief.

In summary, the evidence upon which petitioners Shut­
tlesworth and Billups were convicted of inciting, aiding or 
abetting another to go or remain on the premises of another 
after being warned not to do so was that one, James Gober 
and one, Albert Davis went to petitioner Rev. Shuttles- 
worth’s house on March 30, 1960 (R. 25-26, 28-29), that 
petitioner Billups drove Davis there (R. 28), and that peti­
tioner Billups was present (R. 28), that petitioner Shut­
tlesworth asked for volunteers to participate in sit-down 
demonstrations (R. 25-26, 28-29), that a list, not otherwise 
described, was made (R. 28-29), that Shuttlesworth an­
nounced he would get them out of jail (R. 29), that Gober 
and Davis participated in sit-doAvn demonstrations on 
March 31 (R. 30), and that others who attended the meeting 
at Shuttlesworth’s house participated in sit-down demon­
strations (R. 30-31). The record contains nothing more.*

On this record petitioner Shuttlesworth was found guilty 
as charged and sentenced to 180 days hard labor for the 
city, plus $100.00 fine. Petitioner Billups was found guilty 
as charged and sentenced to 30 days hard labor for the 
city and $25.00 fine.

* Extracts from the transcript are set forth verbatim in the 
Appendix, in fra .



5

How the Federal Questions Were Raised 
and Decided Below

After conviction in the Recorder’s Court of the City of 
Birmingham, petitioners appealed to the Circuit Court of 
Jefferson County for trials de novo, prior to which they 
filed motions to strike the complaint and demurrers al­
leging that §824 and §1436 of the General City Code of 
Birmingham were applied to deprive them of freedom of 
assembly and speech under the Fourteenth Amendment; 
that as applied the ordinances were an enforcement of 
racial segregation and, therefore, a denial of due process 
and equal protection of laws, in violation of the Fourteenth 
Amendment; that the ordinances as applied were so vague 
as to constitute denial of due process of law in violation 
of the Fourteenth Amendment (R. 2-4).

The motions to strike and the demurrers were overruled; 
exceptions were taken (R. 7).

At the close of the State’s evidence, petitioners moved 
to exclude the evidence alleging, among other things, that 
the trespass convictions (which petitioners allegedly had 
initiated) were invalid as based solely on race and, there­
fore, the complaint in this case was a denial of equal pro­
tection of the laws and the right of free speech and assembly 
secured by the Fourteenth Amendment; that the introduc­
tion of the proceedings in Recorder’s Court through hearsay 
evidence constituted a violation of the petitioner’s rights 
under the Fourteenth Amendment (R. 5, 6).

The motions to exclude the evidence were overruled and 
exception taken (R. 7).

At the end of the trial petitioners moved for new trials 
alleging, among other things, that: the ordinance under 
which they were convicted had been applied to deny free­



6

dom of speech, due process and equal protection of the laws 
in violation of the Fourteenth Amendment; that the Court 
erred in overruling the motion to strike the complaint, the 
demurrer, and the motion to exclude the evidence (R. 9-10).

The motions for new trial were overruled (R. 7-8).

Appeals were taken to the Alabama Court of Appeals 
and Assignments of Errors were filed against the action 
of the trial court in overruling the motion to strike the 
complaint (Assignment 1), the demurrers (Assignment 2), 
the motion to exclude the evidence (Assignment 3) and 
the motion for new trial (Assignment 4) (R. 42).

A full opinion was written by the Court of Appeals in 
Shuttlesworth v. City of Birmingham, 6 Division 802, 
(Shuttlesworth 45-47). In Billups’ case after a brief ref­
erence to testimony thought to implicate him, his conviction 
was affirmed on the authority of Shuttlesworth (Billups 
45, 46).

The Court ruled adversely to all constitutional issues 
raised by petitioners:

“There is no question of the restriction of any right 
of free speech or other assimilated right derived from 
the Fourteenth Amendment, since the appellant coun­
seled the college students not merely to ask service in 
a restaurant, but urged, convinced and arranged for 
them to remain on the premises presumably for an 
indefinite period of time. There is a great deal of 
analogy to the sit-down strikes in the automobile in­
dustry referred to in National Labor Relations Board 
v. Fansteel Metallurgical Corp., 306 U. S. 240.

“As presented by the appellant’s assignments of 
error and brief, the judgment below is due to be

A ffirmed.”



7

Applications for rehearing before the Court of Appeals 
were overruled (Shuttlesworth 48; Billups 47). Writs of 
Certiorari, sought in the Supreme Court of Alabama were 
denied (Shuttlesworth page after 49, Billups page after 
47). Application for rehearing before the Supreme Court 
of Alabama were overruled (Shuttlesworth 55, Billups 53).

Reasons for Granting the Writ

The court below decided federal constitutional proposi­
tions in conflict with decisions of this Court.

The conviction of petitioners and judgments sentencing 
them to hard labor in jail for 180 and 30 days respectively, 
denied them liberty secured by the due process clause of 
the Fourteenth Amendment to the United States Consti­
tution. This liberty has been taken away solely because 
petitioners exercised Fourteenth Amendment rights of free 
speech and assembly. “ . . . [FJreedom of speech, though 
not absolute, Chaplinsky v. New Hampshire . . . , is never­
theless protected against censorship or punishment, unless 
shown likely to produce a clear and present danger of a 
serious substantive evil that rises far above public incon­
venience, annoyance, or unrest.” Terminiello v. Chicago, 
337 U. S. 1, 4. Petitioners are not charged with having 
conducted a meeting in an unlawful manner, e.g., by sound 
truck (Kovacs v. Cooper, 336 U. S. 77) or without a permit 
where one was required, Cox v. New Hampshire, 312 U. S. 
569, or under circumstances dangerous to public safety, 
e.g., Feiner v. New York, 340 U. S. 315, but cf. Terminiello 
v. City of Chicago, 337 U. S. 1, or to have spoken or 
met in a manner otherwise illegal. Neither have they been 
punished for crime for having created a clear and present 
danger of a substantive evil which the state has the power 
to prevent. Cf. Schenck v. United States, 249 U. S. 47.



8

In this case the record demonstrates merely that peti­
tioner Shuttlesworth “‘asked for volunteers and that there 
were some volunteers to take part in ‘sit-down’ demonstra­
tions ; Shuttlesworth promised to get them out of jail” 
(Opinion of Alabama Court of Appeals, Shuttlesworth v. 
City of Birmingham, App. la). In the case of Billups, 
the record shows only that Billups drove a student to Shut- 
tlesworth’s home and attended the meeting at which Shut­
tlesworth made the request for “volunteers” (Opinion of 
Alabama Court of Appeals, Billups v. City of Birmingham, 
App. 6a). There is no evidence at all that Shuttlesworth 
requested anyone to perform an unlawful act. The Ala­
bama Court of Appeals states that “the appellant counseled 
the college students not merely to ask service in a restau­
rant, but urged, convinced and arranged for them to remain 
on the premises presumably for an indefinite period of 
time” (App. la  (emphasis supplied)). The Alabama Court 
of Appeals also held that a “sit-down” demonstration being 
a form of trespass after warning, denotes violation of 
State law and especially of §1436 of the City Code, supra 
(ibid.).

But the record does not at all support these conclusions. 
See Thompson v. City of Louisville, 326 U. S. 199.

Petitioner Shuttlesworth’s request for volunteers to par­
ticipate in sit-down demonstrations does not on this record 
in any sense at all support a conclusion that he “urged, 
convinced and arranged for them to remain on the prem­
ises presumably for an indefinite period of time.” Nor does 
it support at all a conclusion that he asked them to engage 
in “trespass after warning.” A “sit-down” demonstration 
may take many forms. See Pollitt, Duke L. J., Dime Store 
Demonstrations: Events and Legal Problems of First Sixty 
Days, 315 (1960). Such demonstrations are not at all nec­
essarily a crime as this Court demonstrated by its decision



9

in Garner v. Louisiana, 7 L. ed. 207 (1961). Moreover, 
state courts under varying sets of facts have acquitted or 
reversed the convictions of participants in such demon­
strations.

See Pollitt, op. cit. supra, at p. 350 (trespass convictions 
of students convicted in Raleigh, N. C. dismissed); King
v. City of Montgomery, -----  Ala. ----- , 128 So. 2d 341
(trespass convictions for sit-in in private hotel reversed); 
Briscoe v. State of Texas, 341 So. 2d 432; Rucker v. State 
of Texas, 341 So. 2d 434; Tucker v. State of Texas, 341 
So. 2d 433; Johnson v. State of Texas, 341 So. 2d 434 
(convictions of sit-ins for unlawful assembly reversed).

There is no evidence in this record concerning precisely 
the activities petitioners are supposed to have counseled, 
and no evidence concerning the activities in which students 
are supposed to have engaged following petitioners’ advice 
when they participated in sit-ins. But even if one were 
to notice, arguendo, the convictions of Gober, et al., now 
here in No. 694 on Petition for Writ of Certiorari, it is 
respectfully submitted that the demonstrators in those 
cases committed no crimes but were engaged in activities 
protected by the Fourteenth Amendment to the United 
States Constitution. The request for nonsegregated service 
in the face of the Birmingham segregation ordinance did 
not constitute illegal activity by those students when viewed 
in the light of the Fourteenth Amendment to the United 
States Constitution1 for the proprietors were compelled to 
refrain from serving those petitioners by the Ordinance.1 2

1 Additional reasons demonstrating the unconstitutionality of 
the convictions in G ober are set forth in the petition in No. 694 
to which petitioners here respectfully refer the Court.

2 “ ‘Sec. 369. Separation of races.
It shall be unlawful to conduct a restaurant or other place 

for serving of food in the city, at which white and colored



10

Consequently any “trespass” that occurred stemmed di­
rectly from the segregation law. Such convictions obvi­
ously were unconstitutional.

Petitioners having met and expressed themselves in a 
manner which was entirely legal and having counseled ac­
tivities which were entirely legal and concerning which 
there is no evidence whatsoever of illegality, were engaged 
in constitutionally protected free expression. Indeed, as 
Mr. Justice Harlan pointed out in his concurring opinion 
in Garner, a lawfully conducted sit-in protest is an exer­
cise of First Amendment and (as against the states) Four­
teenth Amendment rights. Counseling another to engage 
in such activity absent any evidence that illegal conduct is 
sought by the counsellor is a fortiori the exercise of free 
speech.* 3 Here petitioners did not seek to achieve a sub­

people are served in the same room, unless such white and 
colored persons are effectually separated by a solid partition 
extending from the floor upward to a distance of seven feet 
or higher, and unless a separate entrance from the street is 
provided for each compartment’ ” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
7 Code of Alabama, 1940, §429(1). See S h e ll O il v. E dw ards, 263 
Ala. 4, 9, 88 So. 2d 689 (1955); S m ile y  v. C ity  of B irm ingham , 255 
Ala. 604, 605, 52 So. 2d 710 (1951). “ ‘The act approved June 18, 
1943, requires that all courts of the State take judicial knowledge 
of the ordinances of the City of Birmingham.’ ” M onk  v. Birming­
ham , 87 F. Supp. 538 (N. D. Ala. 1949), aff’d 185 F. 2d 859, cert, 
denied 341 U. S. 940. And this Court takes judicial notice of laws 
which the highest court of a state may notice. J u n ctio n  R.R. Co. 
v. A sh la n d  B an k , 12 Wall. (U. S.) 226, 230; A b ie  S ta te  Bank v. 
B ry a n , 282 U. S. 765, 777, 778; A d a m s  v. S aen ger, 303 U. S. 59; 
O w in gs v. H u ll, 9 Peters (U. S.) 607, 625.

3 Compare F iske  v. K an sas, 274 U. S. 38, where the criminal 
syndicalism act was held to have been applied unconstitutionally 
where it was not shown that defendants had advocated unlawful 
methods to obtain their goals. In the case now at bar petitioners’ 
goals were consonant with those of the high aspirations of tie 
Fourteenth Amendment. Cf. R a ilw a y  M ail A ss’n  v. C orsi, 326 U. S. 
88, 98 (Justice Frankfurter’s concurring opinion).



11

stantive evil which the state has a right to prevent, see 
Schenck v. United States, 249 U. S. 47; rather, they sought 
nonsegregated food service in the face of an obviously un­
constitutional facial segregation ordinance in the City of 
Birmingham which asserted a power the state does not 
possess.

Conviction of petitioners under the “inciting” ordinance 
is even further offensive to the Fourteenth Amendment 
because this ordinance does not reasonably apprise any­
one that to advocate a sit-in protest is a crime. A statute 
must give fair warning to a defendant of what acts are 
prohibited, Connally v. General Construction Co., 269 U. S. 
385 and where it trenches upon free expression the statute 
must be even more specific. Winters v. New York, 333 
U. S. 507; Burstyn v. Wilson, 343 U. S. 495; Saia v. New 
York, 334 U. S. 558; Chaplinsky v. New Hampshire, 315 
U. S. 568.



12

W herefore, for the foregoing reasons, it is respectfully 
subm itted that the petition for w rit of certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
Orzell B illingsley 
P eter A. H all 
Oscar A dams 
J. R ichmond P earson

1630 Fourth Avenue, No. 
Birmingham, Alabama

Attorneys for Petitioners

L eroy D. Clark 
J ames M. N abrit, III 

Of Counsel



APPENDIX

Opinion of Cates, Presiding Judge

T he S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 802
i '

F. L. S huttles worth

—y.—

City of B irmingham

Appeal from Jefferson Circuit Court 
Cates, Judge:

Appellant was convicted in the Circuit Court of Jefferson 
County of violating § 824 of the General City Code of Bir­
mingham of 1944, which reads as follows:

“It shall be unlawful for any person to incite, or aid 
or abet in, the violation of any law or ordinance of 
the city, or any provision of state law, the violation 
of which is a misdemeanor.”

The particular corollary crime of which he was accused 
of inciting others to commit is found in § 1436 of the City 
Code. This section makes it an offense to remain on the 
premises of another after a warning. See James Gober v.
City of Birmingham, 6 Div. 797 (Ms.), -----  Ala. App.
---- , this day decided.

We can only consider one point raised by the assign­
ments of error and the propositions of law and argument, 
i.e., the sufficiency of the evidence to show a violation of 
§824, supra.



2a

Opinion of Cates, Presiding Judge

The statement of the ease set forth in appellant’s brief 
(which we are entitled to rely upon without regard to the 
record itself in civil cases) is that Shuttlesworth asked for 
volunteers, and that there were some volunteers to take 
part in, ‘sit-down’ demonstrations; Shuttlesworth promised 
to get them out of jail.

The appellant’s argument on this point deliberately 
evades the effect of the word “incite” in the city ordinance, 
and deals solely with the joint responsibility of an aider 
and abetter. It is sufficient to answer this argument by a 
quotation from Jowitt’s Dictionary of English Law, p. 953:

“Everyone who incites any person to commit a crime 
is guilty of a common law misdemeanor, even though 
the crime is not committed. If the crime is actually 
committed, he is an accessory before the fact in the 
case of felony, and equally guilty, in the case of treason 
or misdemeanor, with the person who commits the 
crime.”

A sit-down demonstration being a form of trespass after 
warning, denotes a violation of both State law and especially 
of § 1436 of the City Code, supra.

There is no question of the restriction of any right of 
free speech or other assimilated right derived from the 
Fourteenth Amendment, since the appellant counseled the 
college students not merely to ask service in a restaurant, 
but urged, convinced and arranged for them to remain on 
the premises presumably for an indefinite period of time. 
There is a great deal of analogy to the sit-down strikes in 
the automobile industry referred to in National Labor Rela­
tions Board v. Fansteel Metallurgical Corp., 306 U. S. 240.

As presented by the appellant’s assignments of error and 
brief, the judgment below is due to be

A ffirmed.



3a

The S tate of Alabama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 802

Order o f Affirmance in Shuttlesworth Case

F. L. S huttlesworth 

—v.—

City of B irmingham

Appeal from Jefferson Circuit Court

November 2,1960 
Certificate F iled

January 26,1961 
Transcript F iled
• ■ ■ • • J , : . . ' • _ ■ . . * i i ‘

April 18,1961
Come the parties by attorneys, and argue and submit this 

cause for decision.
May 30,1961

Come the parties by attorneys, and the record and matters 
therein assigned for errors being submitted on briefs and 
duly examined and understood by the court, it is considered 
that in the record and proceedings of the Circuit Court there 
is no error. It is therefore considered that the judgment of 
the Circuit Court be in all things affirmed. I t is also con­
sidered that the appellant pay the costs of appeal of this 
court and of the Circuit Court.



4a

T he S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 802

F. L. S huttlesworth 

— v .—

Order Denying Application fo r Rehearing
in Shuttlesworth Case

City of B irmingham

Appeal from Jefferson Circuit Court 

June 14,1961
Now comes appellant, in the above styled cause, and re­

spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

A rthur D. S hores 
Orzell B illingsley, J r. 
P eter A . H all 
Oscar W . A dams, J r.
J. R ichmond P earson

Attorneys for Appellant

June 20,1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Cates, Judge.



5a

Order Denying Application for Rehearing in 
Shuttlesworth Case

June 20,1961

On R ehearing

Cates, Judge:

The application for rehearing in this case is supported 
by a brief which contains two propositions of law, both of 
which are predicated on the appellant’s having been con­
victed under § 1436 of the General City Code of Birming­
ham.

This appellant was convicted of inciting others to violate 
§ 1436. The propositions accordingly have no bearing on 
the facts.

Application Overruled.



6a

S ixth D ivision

No. 764

Ex P arte F. L. S huttlesworth 

IN THE SUPREME COURT OF ALABAMA

Order o f Filing in Shuttlesworth Case

F . L. S huttlesworth 

City of B irmingham

Appellant

Appellee

July 5,1961
S ubmitted on B riefs

September 25,1961
W rit D e n ied : N o Opinion

A rthur D . S hores 
P eter A. H all 
Orzell B illingsley, J r.
J. R ichmond P earson 
Oscar W . A dams, J r.

Attorneys for Appellant

October 4,1961
A pplication for R ehearing F iled 

A pplication for R ehearing Overruled

November 16,1961



7a

Order Denying Petition fo r Writ o f Certiorari to 
the Court o f Appeals in Shuttlesworth Case

THE SUPREME COURT OF ALABAMA 
Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 
(Lawson’s Division Sitting)

6th Div. 764

Ex Parte:
F. L. S huttlesworth,

Petitioner.

Petition for W rit of Certiorari to the Court of A ppeals

(Re: F. L. S huttlesworth v . City of B irmingham) 
Jefferson Circuit Court

It is hereby ordered that the application for rehearing 
filed on October 4, 1961, be and the same is hereby over­
ruled.

Livingston, C.J., L awson, S takely and Merrill, JJ., 
concur.



8a

May 30,1961
T he S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795

Opinion o f Price, Presiding Judge in Billups Case

Charles B illups 

—v.—
City of B irmingham

Appeal from Jefferson Circuit Court 

P rice, Judge:
This is a companion case to that of F. L. Shuttleswortli 

v. City of Birmingham, 6 Div. 802.
The facts set out in the Shuttleswortli case are adopted 

as the facts of this case, with this additional statement: 
“On March 30, 1960, Rev. Billups went to Daniel Payne 
College in a car, where he picked up one James Albert 
Davis, a student, and carried him to the home of Rev. F. L. 
Shuttleswortli, where several people had gathered, among 
them Rev. Shuttleswortli, his wife, and several other stu­
dents from Daniel Payne College. Rev. Billups was also 
at said meeting.” Under this testimony the jury was fully 
justified in finding that this defendant was part and parcel 
of the entire scheme.

On the authority of Shuttleswortli v. City of Birming­
ham, supra, the judgment is due to be, and hereby is, af­
firmed.

A ffirmed.



9a

The S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795

Opinion in Billups Case

Charles B illups

—v.—
City of B irmingham

Appeal from Jefferson Circuit Court

November 2,1960 

Certificate F iled

January 26,1961

Transcript F iled

April 18,1961

Come the parties by attorneys, and argue and submit 
this cause for decision.

May 30,1961

Come the parties by attorneys, and the record and mat­
ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that 
the judgment of the Circuit Court be in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.



10a

Order Denying Application fo r  Rehearing 
in B illups Case

T he S tate of A labama— J udicial D epartment

THE ALABAMA COURT OF APPEALS 
October Term, 1960-61 

6 Div. 795

Charles B illups 

— v .—

City of B irmingham

Appeal from Jefferson Circuit Court 
June 14,1961

Now comes appellant, in the above styled cause, and re­
spectfully moves this Honorable Court to grant appellant 
a rehearing in said cause, and to reverse, revise and hold 
for naught its Judgment rendered on, to-wit, the 30th day 
of May, 1961, and affirming the Judgment of the Circuit 
Court of Jefferson County, Alabama, and to enter an Order, 
reversing said Judgment.

A rthur D. S hores 
Orzell B illingsley, J r. 
P eter A. H all 
Oscar W. A dams, J r.
J. R ichmond P earson

Attorneys for Appellant

June 20,1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.

P er Curiam.



11a

S ixth D ivision 

No. 763

Ex P akte: Charles B illups 

IN THE SUPREME COURT OF ALABAMA

Order o f Filing in B illups Case

Charles B illups 

— v s .—

City of B irmingham

Appellant

Appellee

A rthur D. S hores 
P eter A. H all 
Orzell B illingsley, J r. 
Oscar W . A dams 
J. R ichmond P earson

Attorneys for Appellant.

July 5,1961,—Submitted on Briefs

Sept. 25,1961,—W rit denied: No opinion
Oct. 4,1961,—Application for Rehearing filed

Nov. 16,1961,—Application for Rehearing Overruled



12a

Order Denying Petition for Writ o f Certiorari to 
the Court o f Appeals in Billups Case

THE SUPREME COURT OF ALABAMA 

Thursday, November 16,1961

The Court met pursuant to adjournment

Present: All the Justices 
(Lawson’s Division Sitting)

6th Div. 763

Ex Parte:
Charles B illups,

Petitioner

P etition for W rit of Certiorari to the Court of A ppeals

(Re: Charles B illups v . City of B irmingham) 
Jefferson Circuit Court

I t  is  h e r e b y  o r d e r e d  that the application for rehearing 
filed on October 4, 1961, be and the same is hereby over­
ruled.

L ivingston, C . J L awson, S takely and Merrill, JJ.,
concur.



13a

“Q. Mr. [detective] Pierce, were you present in the 
City’s Recorder’s Court, the Honorable William Con­
way presiding, on the evening of April 1,1960 at which 
time Rev. F. L. Shuttlesworth, or F. L. Shuttlesworth, 
was on trial for violation of a City Ordinance?

“A. Yes, sir, I was there.
“Q. On that occasion did a James Gober make any 

statement under oath and in the presence of the de­
fendant Shuttlesworth, in the presence and hearing 
of the defendant Shuttlesworth, and in the presence 
and hearing of his counsel on that occasion?

“A. Yes sir, he did” (R. 17-18).
*  #  *  *  *

“The Court: May I inquire whether the witness 
heard James Gober in the presence of defendant Shut­
tlesworth say anything about where he had been the 
afternoon before or two days before, whether it was 
the 30th or 31st or the 1st of April” (R. 21)?

#  *  *  *  *

“A. I heard him testify that he was a student at 
Daniel Payne College” (R. 21).

# # * # #
“Q. Did he say where that place was on March 30th 

he went (R. 25) ?
“A. He said he went to Rev. Shuttlesworth’s house.
“Q. Did he make any remarks as to who was present 

when he arrived at Rev. Shuttlesworth’s house ?

Extracts From  Transcript o f Proceedings*

* This constitutes all of the testimony introduced in evidence 
except for material which is repetitive or introductory.



14a

“A. He said there were several people present. He 
named Rev. Shuttlesworth and the Rev. Billups. Said 
they were there.

“Q. Did he mention that either Rev. Shuttlesworth 
or Rev. Billups made any statement there on that 
occasion?”

#  *  *  *  *

“A. He testified that the sit-down demonstrations 
was discussed at the meeting.

“Q. Did he state whether or not Rev. Shuttlesworth 
participated in that discussion of the sit down demon­
stration?

“A. He testified the meeting was in the living room 
of Rev. Shuttlesworth’s house and that Rev. Shuttles­
worth participated in the discussion about the sit-down 
demonstrations” (R. 25-26).

*  #  #  #  *

“Q. Did the witness say that Shuttlesworth sought 
volunteers for this demonstration, this sit in demon­
stration?”

* # # # #
“A. He testified that Rev. Shuttlesworth asked for 

volunteers to participate in the sit-down demonstra­
tions (R. 26).

“Q. Did I understand you correct, Mr. Pierce, to say 
that he stated Rev. Billups was there at this meeting 
also?”

*  #  *  #  *

“A. He stated that Rev. Billups was there in the 
meeting (R. 27).

“Q. Did he make any reference to any list being 
made at this meeting held at Rev. Shuttlesworth’s 
house?

“A. He did.”

E x tr a c t s  F r o m  T r a n s c r ip t  o f  P ro c e ed in g s

#  #  #  #  *



15a

“A. He testified that there was a list made but he 
didn’t know who made the list.”

* * * * *

“Q. I will ask you, Mr. Pierce, if on this same evening 
of April, 1960 in the presence and hearing of Rev. 
Shuttlesworth and Rev. Billups if James Albert Davis, 
while under oath, made any statements concerning this 
meeting held at Rev. Shuttlesworth’s house” (R. 28)? 

* * * * *
“A. He did.
“Q. Will you tell the Court what, if anything, he 

said on this occasion that took place at the house of 
Rev. Shuttlesworth at this hearing or discussion where­
in both Rev. Shuttlesworth and Rev. Billups were 
present.”

* * * * *
“A. He testified that Rev. Billups came to his school, 

Daniel Payne College, in a car and carried him to 
Rev. Shuttlesworth’s house. He further testified that 
when he arrived there there were several people there, 
among which was Rev. Shuttlesworth and Rev. Shut­
tlesworth’s wife and a number of other students from 
Daniel Payne College. He testified that in response to 
Rev. Shuttlesworth asking for volunteers to participate 
in the sit-down strikes that he volunteered to go to 
Pizitz at 10:30 and take part in the sit-down demon­
strations. He further testified that a list was made 
but he didn’t know who made the list. He thought the 
list was compiled by—” (R. 28-29).

* * * * *
“A. He said he didn’t know or wasn’t sure who made 

the list and he testified that Rev. Shuttlesworth didn’t 
say that he would furnish Counsel but told him or made

E x tr a c ts  F r o m  T r a n s c r ip t  o f  P r o c e ed in g s



16a

the announcement at that time that he would get them 
out of jail.”

* * * * *

“Q. Do you know it to be a fact that a number of 
boys—or I will put it this way. Do you know it to he 
a fact that James Gober and James Albert Davis did 
participate in sit-down or sit-in demonstrations on the 
day of March 31,1960 (R. 30) ?

“A. Yes sir, they did.
“Q. Do you know of your own knowledge that other 

colored boys on that same date participated in sit-in 
demonstrations in down town stores in the City of 
Birmingham?”

* * * * *
“Q. Let me put it this way. Other boys who at­

tended the meeting at Rev. Shuttlesworth’s house?” 
* * * * *

“A. Yes” (R. 30).
* * * * *

“Q. Did either Gober or Davis while at that Court 
hearing and under the conditions we have previously 
outlined state that other persons were present—I am 
speaking of in the Court room now—did they state that 
other persons were present who did participate in 
these demonstrations at Rev. Shuttlesworth’s house on 
March 30, 1960?

“A. Yes sir” (R. 31).

E x tr a c t s  F r o m  T r a n s c r ip t  o f  P ro ceed in g s





3 8



I k  the

£>upmn? ©curt of tlje Utitftli Btntts
October Term, 1962 

No. 67

F. L. Shuttlesworth and Charles Billups,
Petitioners,

— v .—

City op Birmingham.

ON WRITS OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

BRIEF FOR PETITIONERS

Constance Baker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

Arthur D. Shores 
P eter A. Hall 
Orzell Billingsley, J r. 
Oscar W. Adams, J r.
J. Richmond P earson

Birmingham, Alabama
Attorneys for Petitioners

Leroy D. Clark 
of Counsel





INDEX
PAGE

Opinions Below..........................................................   1

Jurisdiction...........................  1

Constitutional and Statutory Provisions Involved....... 2

Question Presented...................................................... _... 3

Statement of the Case .............................................. ,.... 3

Argument..........................................................................  7

I. Fourteenth Amendment Due Process Imperatives 
Require Reversal of These Convictions ..............  7

A. There Is No Evidence in This Record on 
Which These Convictions May Be Affirmed 7

B. This Record Discloses Only an Exercise of
Constitutionally Protected Freedom of As­
sembly and Speech..............   9

C. The Ordinance for Violation of Which Peti­
tioners Were Convicted Is Constitutionally 
Vulnerable on the Grounds of Vagueness .... 12

Conclusion.......................................................................................  13

T able of Cases

Briscoe v. State of Texas, 341 S. W. 2d 432 ..................  8
Burstyn v. Wilson, 343 U. S. 495 ..................................... 13

Chaplinsky v. New Hampshire, 315 U. S. 568 ..............  13
Connally v. General Construction Co., 269 U. S. 385 .... 13 
Cox v. New Hampshire, 312 U. S. 569 .........................  11



PAGE

Feiner v. New York, 340 U. S. 315................................  11

Garner v. Louisiana, 368 U. S. 157 ......................8, 9,10,12
Gilbert v. Minnesota, 254 U. S. 325 ................................  11

Johnson v. State of Texas, 341 So. 2d 434 .................  8

King v. City of Montgomery,----- A la.------ , 128 So. 2d
341................................................................................... 8

Kovaes v. Cooper, 336 U. S. 77........................................ 11

NAACP v. Alabama, 357 U. S. 449 ................................  10
National Labor Relations Board v. Fansteel Metallurgi­

cal Corp., 306 U. S. 240 ............................................... 8

Rucker v. State of Texas, 341 So. 2d 434......................... 8

Saia v. New York, 334 U. S. 558 ....................................  13
Schenck v. United States, 249 U. S. 4 7 ......................... 12

Terminiello v. Chicago, 337 U. S. 1, 4 .........................11,12
Thompson v. City of Louisville, 362 U. S. 199.............  9
Tucker v. State of Texas, 341 So. 2d 433 ..................... 8

Turner v. City of Memphis, 369 U. S. 350  ................  9

Winters v. New York, 333 U. S. 507 ................................  13

Other A uthorities

Pollitt, Duke L. J., Dime Store Demonstrations: Events 
and Legal Problems of First Sixty Days, 315 (1960) .. 7,8

11



I n the

§itpnm t? ©Hurt uf %  lu tlr fc  Btntts
October Term, 1962

No. 67 
—

F. L. S huttlesworth and Charles B illups,

Petitioners,
— y . —

City of B irmingham.

ON WRITS OF CERTIORARI TO THE COURT OF APPEALS OF ALABAMA

BRIEF FOR PETITIONERS

Opinions Below

The opinions of the Court of Appeals of Alabama are 
reported at 134 So. 2d 213 (Shuttlesworth, R. 43) and 134 
So. 2d 215 (Billups, R. 67).

Jurisdiction

The judgments of the Alabama Court of Appeals were 
entered on May 30, 1961 (Shuttlesworth, R. 44; Billups,
R. 67).

Application for rehearing before the Court of Appeals 
of Alabama was denied on June 20, 1961 (Shuttlesworth,
R. 45; Billups, R. 6 8). A petition to the Supreme Court of 
Alabama for Writ of Certiorari was denied on September 
25, 1961, and application for rehearing was overruled on 
November 16, 1961 (Shuttlesworth, R. 46, 51; Billups,



2

R. 6 8). The jurisdiction of this Court is invoked pursuant 
to 28 United States Code, §1257 (3), petitioners having 
asserted below, and asserting here, the deprivation of his 
rights, privileges and immunities secured by the Consti­
tution of the United States.

Constitutional and Statutory Provisions Involved

This case involves the following constitutional provision:

Section 1 of the Fourteenth Amendment to the Constitu­
tion of the United States.

The case also involves the following provisions of the 
General Code of Birmingham of 1944:

“Section 824. It shall be unlawful for any person to 
incite, or aid or abet in, the violation of any law or 
ordinance of the city, or any provision of state law, 
the violation of which is a misdemeanor.”

“Section 1436 (1944), A fter Warning. Any person who 
enters into the dwelling house, or goes or remains on 
the premises of another, after being warned not to do 
so, shall on conviction, be punished as provided in 
Section 4, provided, that this Section shall not apply 
to police officers in the discharge of official duties.”

“Section 369 (1944), Separation of races. It shall be 
unlawful to conduct a restaurant or other place for the 
serving of food in the city, at which white and colored 
people are served in the same room, unless such white 
and colored persons are effectually separated by a 
solid partition extending from the floor upward to a 
distance of seven feet or higher, and unless a separate 
entrance from the street is provided for each compart­
ment” (1930, Section 5288).



3

Question Presented

Alabama has convicted petitioners of “inciting] or 
aid[ing] or abet [ting] another person to go or remain on 
the premises of another after being warned . . . ” The 
record showed essentially that petitioner Shuttlesworth 
“asked for volunteers to participate in the sit-down dem­
onstrations” and that petitioner Billups was present at 
this request. There was no evidence that either persuaded 
anyone to violate any law, or that anyone following peti­
tioners’ suggestions did violate any law, valid under the 
Fourteenth Amendment to the United States Constitution. 
A Birmingham ordinance requires racial segregation in 
restaurants.

In convicting and sentencing petitioners respectively to 
180 and 30 days hard labor, plus fines, has Alabama denied 
liberty, including freedom of speech, secured by the due 
process clause of the Fourteenth Amendment?

Statement of the Case

Petitioners, Rev. F. L. Shuttlesworth and Rev. Charles 
Billups, were convicted by the Recorder’s Court of the City 
of Birmingham, Alabama and, upon a trial de novo, by an 
Alabama Circuit Court of a violation of Section 824, Gen­
eral City Code of Birmingham, 1944 (R. 8, 59) .1 The City’s 
complaint alleged that petitioners, in violation of Section 
824, “did incite or aid or abet” the violation of another 
City ordinance, Section 1436, which defines the crime of 
trespass after warning (R. 2, 53) . 1 2 Petitioner Shuttles-

1 See page 2, su p ra , for text of ordinance.
2 See page 2, su p ra , for text of ordinance.



4

worth was fined $100 and sentenced to 180 days hard labor 
for the City while lesser penalties, $25 and 30 days, were 
imposed on Billups (R. 8, 59).

The convictions, appealed to the Alabama Court of Ap­
peals, were affirmed, followed by unsuccessful attempts to 
secure review by the Supreme Court of Alabama (R. 43-45, 
46-51, 66-68, 69).

The City undertook to sustain its burden of proof on 
the testimony of a single witness who did not personally 
witness any of the facts to which he testified but which the 
Circuit Court found sufficient for conviction. The witness, 
Charles L. Pierce, a Birmingham City detective, testified, 
over the repeated objections of petitioners’ counsel, that he 
was present at petitioners’ trial in Recorder’s Court when 
two of the persons whom petitioners allegedly incited to 
violate a City ordinance, students James Gober and James 
Albert Davis, testified concerning the instant charge (R. 
20-23).

The testimony Detective Pierce heard, and which forms 
the sole basis upon which the convictions were sustained, 
follows:

Gober testified that on March 30,1960 he went to the home 
of Rev. Shuttlesworth where several others, including peti­
tioners, were present and discussed sit-in demonstrations 
by Negro students (R. 27-28). Rev. Shuttlesworth partici­
pated in the discussion (R. 28). He then asked for “volun­
teers” for sit-in demonstrations (R. 29). Gober referred 
to a “list” but didn’t know who had made it (R. 29-30). 
James Albert Davis testified that petitioner Billups came 
to Daniel Payne College, where Davis and Gober were 
students, and took Davis in his car to Shuttlesworth’s house 
(R. 31). When Davis arrived, several persons were there, 
including Shuttlesworth, his wife, and a number of other



5

stu d en ts from the College (R. 31). Rev. Shuttlesworth 
asked for “volunteers” and he (Davis) “volunteered” to 
go to Pizitz at 10:30 and take part in a sit-in demonstration 
(R. 31). Davis testified a list was made, but he, also, did 
not know who made the list (R. 31). Finally, Davis testified 
that Rev. Shuttlesworth “told him or made the announce­
ment at that time that he would get them out of jail” 
(R. 31-32). To this testimony the detective added that he 
knew it was a fact that Gober and Davis did participate 
in a sit-in demonstration on March 31, 1960 (R. 33).

Upon the foregoing, petitioners were adjudged guilty of 
having incited or aided or abetted Gober, Davis, and other 
students to violate the trespass after warning ordinance 
(R. 40).

At every opportunity, petitioners urged the Fourteenth 
Amendment due process claim now before this Court. They 
first moved to strike the complaint (R. 3), then demurred 
(R. 4), moved to exclude the testimony (R. 6 ) and for new 
trial (R. 11). Again, in assignment of errors in the Court 
of Appeals (R. 41-42) and petition for certiorari in the 
Supreme Court of Alabama (R. 47-50) a violation of due 
process guaranteed by the Fourteenth Amendment to the 
Federal Constitution was urged.

Petitioners’ due process claim is that: 1) Section 824, 
General Code of Birmingham, as applied to them, deprives 
them of freedom of assembly and speech; 2 ) there is no 
evidence at all that petitioners incited, aided or abetted any 
violation of law or that a violation of law in fact occurred; 
and 3) Section 824 as applied is so vague as to constitute 
a denial of due process of law in violation of the Fourteenth 
Amendment.

The only court which rendered an opinion was the Ala­
bama Court of Appeals (R. 43-44, 67). It limited review to



6

considering the sufficiency of the evidence to support a 
conviction for violation of Section 824. In Rev. Shuttles- 
worth’s case that court found it sufficient that “ . . .  ‘Shuttles­
worth asked for volunteers, and that there were some 
volunteers to take part in sit-down demonstrations’ and 
that Shuttlesworth promised to get them (the students) out 
of jail” (R. 44). The court then held that, “A sit-down 
demonstration being a form of trespass after warning, 
denotes a violation of both state law and especially of Sec­
tion 1436 of the City Code” (R. 44). Having found that 
the evidence was sufficient to sustain the conviction on the 
ground of incitement, the court then ruled that no Four­
teenth Amendment free speech rights were involved. It 
held that petitioners “counseled the college students not 
merely to ask service in a restaurant, but urged, convinced 
and arranged for them to remain on the premises pre­
sumably for an indefinite period of time” (R. 44). The 
court found the situation here analogous to illegal sit-down 
strikes in the automobile industry (R. 44).

Rev. Billups’ conviction was upheld on the authority of 
the Shuttlesworth case, except for the following addition: 
On March 30, 1960 Rev. Billups went to Daniel Payne Col­
lege in a car where he picked up one of the students, Davis, 
and drove him to the home of Rev. Shuttlesworth where 
several people had gathered and wthere Rev. Billups also 
was present (R. 67).



7

A R G U M E N T

I.
Fourteenth Amendment Due Process Imperatives Re­

quire Reversal of These Convictions.

A. There Is No Evidence in This Record on Which 
These Convictions May Be Affirmed.

The Alabama courts have held the facts set forth above 
sufficient to convict petitioners of inciting a violation of an 
ordinance which provides that, “Any person who . . . goes 
or remains on the premises of another, after being warned 
not to do so, shall on conviction, be punished. . . . ”

Petitioner Shuttlesworth asked for “volunteers” to par­
ticipate in a sit-in demonstration.3 But there is no evidence 
that he incited these volunteers to “remain on the premises 
of another, after being warned not to do so.” Moreover, 
there is no evidence in this record to sustain a finding that 
these volunteers did in fact remain on the premises of 
another after being duly warned not to do so.

Even the Alabama Court of Appeals recognized that 
there was no evidence to support the charge and so it 
surmised that petitioners “counseled the college students 
not merely to ask service in a restaurant, but urged, con­

3 See, Pollitt, Duke L. J., D im e S to re  D em o n stra tio n s: E v e n ts  
and Legal P rob lem s of F ir s t  S ix ty  D a ys, 315 (1960).

Prior to February 1960, lunch counters throughout the South 
denied normal service to Negroes. Six months later, lunch counters 
in 69 cities had ended their discriminatory practices (N. Y. Times, 
Aug. 11 , 1960, p. 14, col. 5). By September 1961, desegregation 
had occurred in business establishments located in more than 100  
cities in fourteen states (The Student Protest Movement: A Re­
capitulation, Southern Regional Council, Sept. 1961); and since 
then the number has continued to increase without apparent inci­
dent.



8

vinced and arranged for them to remain on the premises 
presumably for an indefinite period of time” (R. 44). 
(Emphasis added.)

The Alabama Court then rationalized that, “There is a 
great deal of analogy to the sit-down strikes in the auto­
mobile industry referred to in National Labor Relations 
Board v. Fansteel Metallurgical Corp., 306 U. S. 240” 
(R. 44). This may very well be true, but this record is 
devoid of any proof of the analogy. There is not a scintilla 
of evidence in this record that petitioners urged, suggested, 
or intended the sit-in demonstrators engage in any unlawful 
conduct. What petitioners in fact urged is simply and 
plainly not shown by this record. All the record shows as 
to petitioner Billups is that he drove one of the students 
to Rev. Shuttlesworth’s home and was present duz-ing the 
discussion. For all that the record shows, this petitioner 
remained silent.

Sit-down demonstrations have taken many forms.4 And 
many of these convictions have been reversed as not having 
been evidence of a crime. See Garner v. Louisiana, 368 
U. S. 157; see Pollitt, op. cit. supra, at p. 350 (trespass 
convictions of students convicted in Raleigh, N. C. dis­
missed) ; King v. City of Montgomery,----- A la.------ , 128
So. 2d 341 (trespass convictions for sit-in in private hotel 
reversed); Briscoe v. State of Texas, 341 S. W. 2d 432; 
Rucker v. State of Texas, 341 So. 2d 434; Tucker v. State 
of Texas, 341 So. 2d 433; Johnson v. State of Texas, 341 
So. 2d 434 (convictions of sit-ins for unlawful assembly 
reversed). Moreover, the students who sought service at 
the lunch counters in the Birmingham cases before this 
Court for review did not violate any valid ordinance by 
peacefully seeking such food service since the Birmingham

Ib id .



9

ordinance requiring racial segregation in restaurants or 
other places serving food is unconstitutional on its face.6 
Turner v. City of Memphis, 369 U. S. 350.

The due process criterion applied by this Court in Garner, 
supra, and Thompson v. City of Louisville, 362 U. S. 199, 
must be invoked here to void these convictions on records 
barren of evidence.

B. This Record Discloses Only an Exercise of Constitutionally 
Protected Freedom of Assembly and Speech.

Protest demonstrations against racial discrimination in 
places of public accommodation in the United States ante­
date by almost a century the current wave of Negro student 
“sit-in” or “sit-down” demonstrations which commenced in 
Greensboro, North Carolina on February 1, 1960.“

The more recent Negro student sit-in demonstrations 
have been viewed from their inception as the exercise of

6 “ ‘Sec. 369. Separation of Races.
It shall be unlawful to conduct a restaurant or other place 

for serving of food in the city, at which white and colored peo­
ple are served in the same room, unless such white and colored 
persons are effectually separated by a solid partition extending 
from the floor upward to a distance of seven feet or higher, 
and unless a separate entrance from the street is provided for 
each compartment’ ” (1930, §5288).

This ordinance is judicially noticeable by the Alabama courts, 
Ala. Code Ann. Tit. 7, §429 (1) (1940). See S h ell O il v. E d w a rd s , 
263 Ala. 4, 9, 81 So. 2d 535, 539 (1955) ; S m ile y  v. C ity  o f  B ir ­
mingham, 255 Ala. 604, 605, 52 So. 2d 710, 711 (1951). “ ‘The act 
approved June 18, 1943, requires that all courts of the State take 
judicial knowledge of the ordinances of the City of Birmingham.’ ” 
Monk v. B irm in gh am , 87 F . Supp. 538 (N. D. Ala. 1949), aff’d 
185 F. 2d 859, cert, denied 341 U. S. 940. And this Court takes 
judicial notice of laws which the highest court of a state may 
notice. Ju n ctio n  R .B . Co. v. A sh la n d  B an k , 12 Wall. (U. S.) 226, 
230; A bie S ta te  B an k  v. B ry a n , 282 U. S. 765, 777, 778; A d a m s  v. 
Saenger, 303 U. S. 59; O w in gs v. H u ll, 9 Peters (U. S.) 607, 625.

6 Westin, “R id e -In ,”  American Heritage, Vol. XIII, No. 5, p. 
57 (1962).



10

constitutionally guaranteed free speech under at least some 
circumstances. Garner v. Louisiana, 368 U. S. 157. (Con­
curring Opinion of Mr. Justice Harlan.) They are, by their 
inherent and manifest nature, a protest against racial 
discrimination.7

The record here discloses only that these petitioners met 
with Negro students shortly after these protests began on 
February 1, 1960 and discussed these demonstrations. The 
sole witness in this case testified that he heard one of the 
students testify that “ . . . the meeting was in the living 
room of Reverend Shuttlesworth’s house and that Reverend 
Shuttlesworth participated in the discussion about the sit- 
down demonstrations” (R. 28). Petitioner Shuttlesworth 
asked for “volunteers” to participate in a “sit-in” or “sit- 
down” demonstration. At one point, petitioner Shuttles­
worth told one of the students that he would get him out 
of jail. Beyond this, there is no evidence in this record 
concerning precisely the activities petitioners are supposed 
to have counseled and no evidence concerning the “sit-in” 
or “sit-dowm” demonstrations themselves which followed 
this counsel.

The Birmingham city ordinance requiring racial segrega­
tion in public restaurants makes clear that the City’s policy 
was one of racial segregation in this area and that the sit-in 
demonstrations here as in other communities across the 
South were designed as a protest against this state policy.

The due process clause of the Fourteenth Amendment 
guarantees the right to make a peaceful protest against 
state enforced racial segregation. NAACP  v. Alabama; 357 
U. S. 449. The evidence in the students’ cases before this 
Court is uncontradicted that the students were at all times

7 Note, L u n ch  C ou n ter  D em o n stra tio n s; S ta te  A c tio n  and the 
F o u rteen th  A m en d m en t, 47 Virginia Law Review 105.



11

peaceful. At the very least, the constitutional protection ex­
tends to a discussion in a private home of sit-ins, especially 
where it is not demonstrated that any unlawful action was 
discussed or, in fact, taken.

To sustain these convictions would license Alabama to 
invade the privacy and freedom of every home where anti- 
discrimination discussions take place. Mr. Justice Brandeis’ 
admonition in his dissenting opinion in Gilbert v. Minnesota, 
254 U. S. 325, where this Court had upheld, against a sim­
ilar free speech consideration, a statute proscribing the 
teaching of pacifism is particularly applicable here. Justice 
Brandeis warned that the statute there made it a crime 
“to teach in any place a single person that a citizen should 
not aid in carrying on a war, no matter what the relation 
of the parties may be. Thus the statute invades the privacy 
and freedom of the home. Father and mother may not fol­
low the promptings of religious belief, of conscience or of 
conviction, and teach son or daughter the doctrine of paci­
fism. If they do any police officer may summarily arrest 
them” (at pp. 335-336).

Petitioners here need not claim an absolute immunity 
from state regulation of their free speech activities, but 
they claim that their discussions on the night of March 30, 
1960, are protected against the punishment which the state 
here seeks to impose, since there has been no showing that 
their discussion was “ . . . likely to produce a clear and 
present danger of a serious substantive evil that rises far 
above public inconvenience, annoyance, or unrest.” Ter- 
miniello v. Chicago, 337 U. S. 1, 4. Petitioners are not 
charged with having conducted a meeting in an unlawful 
manner, e.g., by sound truck, Kovacs v. Cooper, 336 U. S. 77 
or without a permit where one was required, Cox v. New 
Hampshire, 312 U. S. 569, or under circumstances dangerous 
to public safety, e.g., Feiner v. New York, 340 U. S. 315,



12

but cf. Terminiello v. City of Chicago, 337 U. S. 1, or to 
have spoken or met in a manner otherwise illegal. Neither 
have they been punished for crime for having created a 
clear and present danger of a substantive evil which the 
state has the power to prevent. Cf. Schenck v. United 
States, 249 U. S. 47.

The Court of Appeals of Alabama rested its free speech 
restriction in this case upon the fact that petitioner Shut- 
tlesworth had promised to get the students out of jail; 
but, as pointed out above, there is no evidence in this 
record at all that Shuttlesworth requested any one to 
perform an unlawful act. Many of the sit-in demonstrators 
have been arrested and their convictions have been re­
versed. And, as this Court ruled in the Garner case supra, 
such demonstrations are not necessarily a crime.

The convictions of these petitioners under the facts of 
this case are so clearly repugnant to our common notions 
of rights protected by the constitutional guarantees of 
freedom of assembly and speech as to require reversal by 
this Court.

C. The Ordinance for Violation of Which Petitioners 
Were Convicted Is Constitutionally Vulnerable on 
the Grounds of Vagueness.

Petitioners were convicted of inciting students to violate 
the trespass after warning ordinance of the City of Bir­
mingham. This ordinance, which provides that, “It shall 
be unlawful for any person to incite, or aid or abet in, the 
violation of any law or ordinance of the City, or any pro­
vision of state law the violation of which is a misdemeanor”, 
is constitutionally vague.

The record here shows that these petitioners did no more 
than discuss sit-in demonstrations and offer to assist those 
who volunteered for such demonstrations if they should



13

become embroiled with the law. The ordinance which con­
victs them clearly did not give fair warning that to discuss 
such a sit-in protest is a crime. Indeed, as observed, supra, 
often the demonstrations have resulted in desegregation; 
when criminal prosecution has ensued, frequently it has 
failed.

This Court has repeatedly held that a criminal statute 
or ordinance of this kind must give fair warning to a defen­
dant of what acts are prohibited, Cormally v. General Con­
struction Co., 269 U. S. 385; and where, as in this case, free 
speech encroachments are involved, the statute must be 
even more specific. Winters v. New York, 333 U. S. 507; 
Burstyn v. Wilson, 343 U. S. 495; Saia v. New York, 334 
U. S. 558; Chaplinsky v. New Hampshire, 315 U. S. 568. 
Consequently, where the law has given no notice that lawful 
free speech may be criminal, these convictions cannot be 
sustained.

CONCLUSION

For all the foregoing reasons, the petitioners’ convic­
tions by the Alabama courts must be reversed.

Constance B aker Motley 
J ack Greenberg

10 Columbus Circle 
New York 19, N. Y.

A rthur D. S hores 
P eter A . H all 
Orzell B illingsley, J r. 
Oscar W . A dams, J r.
J . R ichmond P earson 

Birmingham, Alabama

Attorneys for Petitioners
Leroy D. Clark 

of Counsel







SB



TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 67

F. L. SHUTTLESWORTH, ET AL., PETITIONERS,

CITY OF BIRMINGHAM.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE 
STATE OF ALABAMA

PETITIO N  FO R  C ER T IO R A R I FIL E D  FEBRUARY 14, 1962 

C ER TIO R A R I GRANTED JU N E 25 , 1962

V S .





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 67

F. L. SHUTTLESWORTH, ET AL., PETITIONERS,
vs.

CITY OF BIRMINGHAM.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF THE 
STATE OF ALABAMA

I N D E X
Original P rint

I

Record from the Circuit Court of the Tenth Judi­
cial Circuit of Alabama in and for Jefferson 
County in the ease of City of Birmingham v.
F. L. Shuttlesworth, No. 20789 ______________  1 1
Appeal b on d _______________________________  1 1
Complaint___________________________ _ _____ 2  2
Motion to strike _____________________________ 2 3
Demurrers _________________________________  3 4
Motion to exclude the evidence_______________  5 6
Judgment entry ___________ ________________  7 8
Motion for a new trial and order overruling___ 9 11
Appeal bond to Court of Appeals________ _____  11 14
Transcript of evidence ______________________  13 15

Appearances _____________________________  13 15
James E. Gober was called to stand, but ex­

cused from testifying ___________________  14 ig
James Albert Davis was called to stand, but 

excused from testifying _________________  17 19

Record P ress, P r in t e r s , N e w  Y ork , N . Y ., A u gu st  1 , 1962



n IN D E X

Original Print
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of City of Birmingham v.
F. L. Shuttlesworth, No. 20789—Continued 
Transcript of evidence—Continued 

Testimony of Charles L. Pierce—
direct ________________  17 20

Sentence --------------------------------------------------  35 37
Reporter’s and clerk’s certificates (omitted in

printing) -------------------------------------------------  40 41
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 802 42 41
Assignment of errors__________________________  42 41
Order of affirmance ___________________________  44 42
Opinion, Cates, J ___ __________________________  45 43
Application for rehearing and order overruling__  48 45
Opinion on rehearing, Cates, J. ________________ 49 46
Proceedings in the Supreme Court of Alabama,

6 Div. 764 --------------------------------------------------  49a 46
Proceedings on petition for certiorari ___________ 49a 46
Petition for certiorari _________________________  49b 47
Application for rehearing _____________________  54 50
Order overruling _____________________________  55 51
Clerks’ certificates (omitted in printing) ________ 56 51

II
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the case of City of Birmingham v.
Charles Billups, No. 20778 __  1 52
Appeal bond _______________________________  1 52
Complaint _________________________________  2 53
Motion to strike ____________________________  2 54
Demurrers _________________________________  3 55
Motion to exclude the evidence _______________ 5 57
Judgment entry ____________________________  7 59
Motion for a new trial and order overruling__  9 61
Appeal bond to Court of Appeals (omitted in 

printing) -------------------------------------------------  12 64



INDEX 111

Original Print
Record from the Circuit Court of the Tenth Judi­

cial Circuit of Alabama in and for Jefferson 
County in the ease of City of Birmingham v.
Charles Billups, No. 20778—Continued
Transcript of evidence (omitted in printing) _ 13 64
Reporter’s and clerk’s certificates (omitted in

prin ting)-------------------------------------------------  40 64
Proceedings in the Court of Appeals of the State

of Alabama, Judicial Department, 6 Div. 795 _ 42 65
Assignment of errors_________________________  42 65
Order of affirmance ___________________________  44  66
Opinion, Price, J. _ __________________________  45  67
Application for rehearing and order overruling_ 47 68
Proceedings in the Supreme Court of Alabama,

6 Div. 763 --------------------------------------------------  47a 69
Proceedings on petition for certiorari ___________ 47a 69
Petition for certiorari_________________________  4 7b 70
Application for rehearing _____________________  52 73
Order overruling _____________________________  53  74
Clerks’ certificates (omitted in printing) ____ ____ 54  74
Order allowing certiorari______________________  56 75



■



1

[fol. 1] [File endorsement omitted]

IN THE CIRCUIT COURT OF THE TENTH JUDICIAL 
CIRCUIT OF ALABAMA, IN AND FOR 

JEFFERSON COUNTY
No. 20789

City of B irmingham, 

vs.
F. L. S huttlesworth.

A ppeal B ond—Filed May 4,1960
The State of Alabama )

) City of Birmingham 
Jefferson County )

We, Rev. F. L. Shuttlesworth, principal and Jas Esdale 
sureties, acknowledge ourselves indebted to the City of 
Birmingham, a municipal corporation, in the sum of Three 
Hundred and no/100 Dollars, for the payment of which, 
well and truly to be made, we bind ourselves, our admin- 
isrators, and executors. But the condition of the above ob­
ligation is such, that whereas the above bounden principal 
was tried and convicted on the charge of Count 1. Aiding 
and Abetting Sec 824 GCC and has prayed and obtained 
an appeal to the Circuit Court of Jefferson County, Ala­
bama, from the judgment of the Recorder’s Court of the 
City of Birmingham, adjudging him to pay a fine of One 
Hundred Dollars, Costs Five Dollars, and to perform hard 
labor for 180 days, rendered the 4 day of April 1960.

Now, if the said principal shall appear at present Term 
of the Circuit Court of Jefferson County, Alabama, and 
from term to term thereafter until discharged by law, then 
this obligation to be void, otherwise to remain in full force 
and effect. And as against this obligation we waive all 
right under the laws of Alabama to claim any personal 
property as exempt from levy and sale.



2

Witness our hand and seals this 4 day of April 1960.
Rev. F. L. Shuttlesworth (L.S.), 3232 28 Ave N., Jas 

Esdale (L.S.), 809 No 21 st., By Lacey Alexander 
(L.S.), Atty In fact.

Approved 4 day of April 1960.
William Conway, Recorder of the City of Birming­

ham.

[fol. 2] [File endorsement omitted]

I n  the Circuit Court of the 
Tenth J udicial Circuit of Alabama 

No. 20789

City of Birmingham, a Municipal corporation, Plaintiff,
v.

F. L. Shuttlesworth, Defendant.

Complaint—Filed October 11,1960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that F. L. Shuttlesworth, within 
twelve months before the beginning of this prosecution, and 
within the City of Birmingham or the police jurisdiction 
thereof, did incite or aid or abet in the violation of an 
ordinance of the City, to-wit, Section 1436 of the General 
City Code of Birmingham of 1944, in that F. L. Shuttles­
worth did incite or aid or abet another person to go or 
remain on the premises of another after being warned not 
to do so, contrary to and in violation of Section 824 of the 
General City Code of Birmingham of 1944.

Watts E. Davis, Attorney for City of Birmingham.



I n  the Circuit Court of the 
Tenth J udicial Circuit of Alabama 

No. 20789

3

City of Birmingham,
YS.

F. L. Shuttlesworth, Defendant.

Motion to Strike—Filed October 11,1960
Comes now F. L. Shuttlesworth, defendant in this cause, 

and moves to strike the complaint in this cause, and as 
grounds for said Motion, sets out and assigns the following, 
separately and severally:

1. That the complaint, affidavit, etc., is not sworn to in 
tills cause.

2. That the allegations of the said complaint are so 
vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinances or statutes upon which are 
founded the complaint in this cause, as applied to this de- 
[fol. 3] fendant, as a citizen of the State of Alabama, and 
of the United States, constitute an abridgment of the free­
dom of assembly, speech and liberties secured to the De- 
fendant, by the Constitution and laws of the State of 
Alabama and the Fourteenth Amendment of the Constitu­
tion of the United States of America.

4. That the said ordinances or statutes which are the 
basis for the affidavit, information or complaint in this 
cause, as applied to the defendant, constitute an abridgment 
of privileges and immunities guaranteed defendant, as a 
citizen of the United States, in violation of the Constitu­
tion and laws of the State of Alabama, and of the Four­
teenth Amendment of the United States Constitution.

5. That Sections 824 and 1436 of the General City Code 
of the City of Birmingham, as applied to this defendant, a



4

Negro citizen of the United States, constitute a denial of 
due process and equal protection of law, in violation of the 
Fourteenth Amendment to the Constitution of the United 
States of America.

6. That the said affidavit, information or complaint, does 
not charge any offense, which is cognizable by this Court.

Arthur D. Shores, Oscar W. Adams, Jr., Orzell Bill­
ingsley, Jr., Peter A. Hall, J. Richmond Pearson, 
Attorneys for Defendant.

[File endorsement omitted]

I n  the Circuit Court of the 
Tenth J udicial Circuit of Alabama 

No. 20789

City of Birmingham,
vs.

F. L. Shuttlesworth, Defendant.

Demurrers—Filed October 11,1960
Comes now F. L. Shuttlesworth, defendant in this cause, 

and demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
[fol. 4] Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prosecu­
tion of this cause, in that no offense is charged which is 
cognizable by this Honorable Court.



5

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinances, Sections 1436 and Sections 824 
of the 1944 General City Code of Birmingham, Alabama, 
as applied to this defendant, are invalid in that they vio­
late Section 4, Article 1, of the Constitution of Alabama, 
and the First and Fourteenth Amendments to the Consti­
tution of the United States of America.

5. That Sections 1436 and Sections 824 of the 1944 Gen­
eral City Code of Birmingham, Alabama, which support the 
complaint, affidavit or information in this cause, as applied 
to this defendant, a citizen of the State of Alabama and of 
the United States, constitute an abridgment of freedom of 
speech and assembly violative of rights and liberties se­
cured the defendant by the First and Fourteenth Amend­
ments to the Constitution of the United States of America.

6. That the aforesaid ordinances as applied to defendant, 
are unconstitutional on their face in that they are so vague 
as to constitute a deprivation of liberty without due process 
of law in violation of the provisions of the Fourteenth 
Amendment to the United States Constitution.

7. That the said Ordinance or Statute in this case, as 
applied to defendant, constitute an abridgment of privileges 
and immunities guaranteed defendant as a citizen of the 
United States, in violation of the Fourteenth Amendment 
to the United States Constitution.

8. That the said Ordinances, as applied to defendant, 
constitute a denial of equal protection of the laws in viola­
tion of the Fourteenth Amendment to the Constitution of 
the United States of America.

Arthur D. Shores, J. Richmond Pearson, Orzell Bill­
ingsley, Jr., Oscar W. Adams, Jr., Peter A. Hall, 

Attorneys for Defendant.

[File endorsement omitted]



[fol. 5]
In the Circuit Court of the 

Tenth J udicial Circuit of Alabama 
No. 20789

6

City of Birmingham, Plaintiff,
vs.

Rev. F. L. Shuttles worth, Defendant.

Motion to E xclude the Evidence—Filed October 11, 1960
1. The complaint charging defendant, a Negro, with vio­

lation of 824 the General City Code of Birmingham of 1944, 
to-wit, aiding and abetting in the violation of 1436 of the 
General City Code of Birmingham of 1944, to-wit, an al­
leged trespass upon land after being forbidden to enter or 
remain or after being told to leave is invalid in that the 
evidence establishes merely that persons alleged to have 
been aided and abetted by the defendant were peacefully 
upon the premises of various department stores, an estab­
lishment performing an economic function invested with 
the public interest, as a customer, vsitor, business guest 
or invitee, and there is no basis for the charge recited by the 
complaint other than an effort to exclude those persons 
who were alleged to have been aided and abetted by the 
defendant from the various eating facilities because of their 
race or color; defendant, at the same time is being denied 
his right of freedom of speech and assembly in that he has 
been criminally prosecuted for an alleged peaceful dis­
course with other citizens of his race in regards to achiev­
ing first class citizenship; thereby depriving him of liberty 
without due process of law and of the equal protection of 
the laws secured by the Fourteenth Amendment of the 
United States Constitution.

2. The evidence offered against defendant, a Negro, in 
support of the complaint charging him with violation of 
824 of the General City Code of Birmingham was wholly in-



7

competent and hearsay evidence upon the grounds that the 
testimony offered by the City of Birmingham was based on 
hearsay and that the witness, Detective Pierce, was not re­
counting the fact personally known to him. Further, that 
the testimony of the witness, Detective Pierce, was based 
upon the record of the proceedings in the Recorders Court 
and the instant proceedings being a trial de novo said rec­
ords of the proceedings in the Recorders Court are only 
admissible for the purpose of impeachment. There being no 
testimony offered by the defendant, any admission of the 
records of proceedings in the Recorders Court in this pro­
ceedings constitutes a violation of the defendant’s consti­
tutional rights under the Laws of the State of Alabama and 
[fol. 6] under the Laws and Constitution of the United 
States of America specifically those rights secured by the 
Fourteenth Amendment of the United States Constitution.

3. That even if the evidence offered by the City of Bir­
mingham was held to be legal it only establishes that the 
prosecution of the defendant was procured for the pur­
pose of preventing him from engaging in peaceful assembly 
with others for the purpose of speaking, and; otherwise 
peacefully protesting in public places the refusal of the 
preponderant number of stores, facilities and accommoda­
tions open to the public in Birmingham, Alabama, to permit 
the defendant, a Negro, and other members of defendant’s 
race from enjoying the access to such stores, facilities, and 
accommodations afforded members of other races; and that 
by this prosecution, prosecuting witnesses and arresting 
officers are attempting to employ the aid of the Court to 
enforce a racially discriminatory policy contrary to the due 
process and equal protection clauses of the Fourteenth 
Amendment to the Constitution of the United States. 4

4. The evidence against the defendant, a Negro, in sup­
port of the charge of his violation of 824 the General City 
Code of Birmingham of 1944, clearly indicates that those 
persons alleged to have acted as a result of the aiding and 
abetting of the defendant, had accepted an invitation to 
enter and purchase articles in the various department stores 
m the City of Birmingham, stores open to the public, but 
bad not been allowed to obtain food service on the same



basis as that offered white persons, because of their race 
or color; and, that in furtherance of this racially discrim­
inatory practice of the various department stores in the 
City of Birmingham, the defendant was arrested, thereby 
violating defendant’s rights under the equal protection and 
due process clauses of the Fourteenth Amendment of the 
United States Constitution, to free speech and the right to 
peaceful assembly.

Oscar W. Adams, Jr., Orzell Billingsley, Jr., Peter 
A. Hall, Arthur D. Shores, J. Richmond Pearson, 
Attorneys for Defendant.

[File endorsement omitted]

[fol. 7]
I n  the Circuit Court of the 

Tenth J udicial Circuit of Alabama

Appealed from Recorder’s Court 
(Aiding & Abetting)

Honorable Geo. Lewis Bailes, Judge Presiding

City of Birmingham, 
vs.

F. L. Shuttlesworth.

J udgment Entry—October 11,1960
This the 11th day of October, 1960, came Wm. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in this 
cause, and the defendant being duly arraigned upon said 
Complaint for his plea thereto says that he is not guilty; 
and defendant files motion to strike, and said motion being 
considered by the Court, it is ordered and adjudged by the



9

Court that said motion be and the same is hereby over­
ruled, to which action of the Court in overruling said mo­
tion the defendant hereby duly and legally excepts; and 
the defendant files demurrers, and said demurrers being 
considered by the Court, it is ordered and adjudged by the 
Court that said demurrers be and the same are hereby 
overruled, to which action of the Court in overruling said 
demurrers the defendant hereby duly and legally excepts; 
and the defendant files motion to exclude the evidence, and 
said motion being considered by the Court, it is ordered and 
adjudged by the Court that said motion be and the same 
is hereby overruled, to which action of the Court in over­
ruling said motion, the defendant hereby duly and legally 
excepts; and the Court finds the defendant guilty as charged 
in the Complaint and thereupon assessed a fine of One 
Hundred ($100.00) dollars and costs against said defen­
dant. It is therefore considered by the Court, and it is the 
judgment of the Court that said defendant is guilty as 
charged in said Complaint, and that he pay a fine of One 
Hundred ($100.00) dollars and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $100.00 and the costs of 
$5.00 accrued in the Recorder’s Court of the City of Bir­
mingham, or to confess judgment with good and sufficient 
security for the same, it is therefore considered by the 
Court, and it is ordered and adjudged by the Court, and 
it is the sentence of the Law, that the defendant, the said 
F. L. Shuttlesworth, perform hard labor for the City of 
Birmingham for fifty-two days, because of his failure to 
pay said fine and costs of $5.00 accrued in said Recorder’s 
Court, or to confess judgment with good and sufficient 
security therefor.
[fol. 8] It is further considered by the Court, and it is 
ordered and adjudged by the Court, and it is the sentence of 
the Law, that the defendant, the said F. L. Shuttlesworth, 
perform additional hard labor for the City of Birmingham 
for one hundred eighty days, as additional punishment in 
this cause.

And the costs legally taxable against the defendant in 
this cause amounting to forty-seven and 25/100 ($47.25)



10

dollars, not being presently paid or secured, and $4.00 of 
said amount being State Trial Tax, $3.00, and Law Library 
Tax, $1.00, leaving forty-three and 25/100 ($43.25) dollars 
taxable for sentence, it is ordered by the Court that said 
defendant perform additional hard labor for the County 
for fifty-eight days, at the rate of 75  ̂ per day to pay said 
costs. It is further ordered by the Court that after the 
sentence for the City of Birmingham has expired, that the 
City authorities return the defendant to the County author­
ities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while in 
jail, for which let execution issue.

And defendant files motion for a new trial in this cause, 
and said motion coming on to be heard and determined 
by the Court, it is ordered by the Court, and it is the 
judgment of the Court that said motion be and the same is 
hereby overruled.

And notice of appeal being given, and it appearing to 
the Court that, upon the trial of this cause, certain ques­
tions of Law were reserved by the defendant for the con­
sideration of the Court of Appeals of Alabama, it is ordered 
by the Court that the execution of the sentence in this 
cause be and the same is hereby suspended until the decision 
of this cause by said Court of Appeals of Alabama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.



11

[fol. 9]
I n  the Circuit Court of the 

T enth  J udicial Circuit of A labama 

No. 20789

City of B irmingham, a Municipal Corporation, Plaintiff,
vs.

F. L. S huttlesworth, Defendant.

Motion for a N ew T rial— Filed October 11, 1960
Now comes the defendant, in the above styled cause, and 

with leave of the Court, first had and obtained, and moves 
this Honorable Court to set aside the verdict and judgment 
rendered on to-wit the 11th day of October, 1960, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for,said Motion sets out and assigns the 
following, separately and severally:

1. That the Judgment of the Court in said case, is 
contrary to the law.

2. For that the Judgment of the Court is contrary to 
the facts.

3. For that the judgment of the Court is contrary to 
the law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained 
by the great preponderance of the evidence in the case.

6. For that the Judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in over-ruling objections, by 

the defendant to the introduction of evidence on behalf of 
the City of Birmingham, Alabama, in this case.



9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

11. The Court erred in overruling defendant’s demurrers 
filed in this cause.

12. The Court erred in overruling the defendant’s Motion 
to Strike the Complaint in this cause.
[fol. 10] 13. The Court erred in finding the defendant
guilty of violating the laws or ordinances of the City of 
Birmingham, Alabama, in that the laws or ordinances, 
under which this defendant was charged and convicted, 
and as applied to this defendant, constituted an abridge­
ment of freedom of speech violative of rights and liberties 
secured to the defendant by the First and Fourteenth 
Amendments to the Constitution of the United States of 
America.

14. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty, 
without due process of law, in violation of the Constitution 
of the State of Alabama, and the provisions of the Four­
teenth Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this case.



13

17. That it appeared from the evidence that no owner 
of the premises involved, had caused the arrest and pros­
ecution of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, with­
out first having a complaint from such owner, or other 
person in charge of such premises.

18. For that it appears from the evidence that the defen­
dant was not prosecuted by the owner of private property7, 
as provided for by the pertinent laws or ordinances of the 
City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant for trespass on private 
property.

20. For that it affirmatively appears that the defendant 
was not requested to leave the premises of the store in­
volved, but was only told to go elsewhere in the store.

[fol. 11] Arthur D. Shores, Orzell Billingsley, Jr., 
Peter A. Hall, J. Richmond Pearson, Oscar W. 
Adams, Jr., Attorneys for defendant.

Order Overruling

The foregoing Motion being presented in open court, this 
11th day of October, 1960; the same being considered and 
understood, the Court is of the opinion that the same 
should be overruled.

A/  
• 6

Geo. Lewis Bailes, Circuit Judge.



14

[File endorsement omitted]

I n  the Circuit Court of the 

T enth  J udicial Circuit of A labama 

A ppeal B ond to Court of A ppeals—Filed October 11, I960

The State of Alabama )
Jefferson County )

Know All Men by These Presents, That we Rev. F. L. 
Sliuttlesworth principal, and James Esdale & Willie Esdale 
as sureties, are held and firmly bound unto the State of 
Alabama in the sum of Three Hundred Dollars, for the 
payment of which well and truly to be made, we bind 
ourselves, our heirs, executors and administrators, jointly 
and severally, firmly by these presents; and we and each 
of us waive our rights of exemption under the Constitution 
and laws of the State of Alabama as against this bond.

The Condition of the Above Obligation is Such, That 
whereas, the above bounden Rev. F. L. Sliuttlesworth was 
on the day of Oct. 11 1960 convicted in the Circuit Court 
of Jefferson County, Alabama, for the offense of A & Abet­
ting and had assessed against him a fine of One Hundred 
and 180 days, together with the cost of this prosecution, 
and on the 11 day of October, 1960, on failure to pay fine 
was sentenced to perform hard labor for the Count)7
for ....... days, and an additional term for the cost, at the
rate of seventy-five cents per day, and as additional punish­
ment imposed the defendant was sentenced to perform hard 
labor for the County for 180 from which sentence the said 
Rev. F. L. Sliuttlesworth has this day prayed and obtained 
an appeal to the Court of Appeals of Alabama.

Now, if the Said Rev. F. L. Sliuttlesworth shall appear 
and abide such judgment as may be rendered by the Court 
of Appeals, and if the judgment of conviction is affirmed, 
or the appeal is dismissed, the said Rev. F. L. Shuttles- 
worth shall surrender himself to the Sheriff of Jefferson 
[fol. 12] County, at the County Jail, within fifteen days 
from the date of such affirmation or dismissal, then this 
obligation to be null and void, otherwise to remain in full 
force and effect.



15

Given under our hands and seals, this the 11 day of 
Oct., 1960.

Eev. F. L. Shuttlesworth (L.S.), James Esdale (L.S.), 
Willie Esdale (L.S.), By A. E. Brooks, Atty. 
(L.S.)

Approved: Julian Swift, Clerk of the Circuit Court of 
Jefferson County.

[File endorsement omitted]

[fol. 13]
I n  the Circuit Court of the T enth  J udicial Circuit 

of A labama— Criminal D ivision 

Case No. 20789

City of B irmingham , Plaintiff, 
vs.

F. L. S huttlesworth, Defendant.

Transcript of Evidence—October 11, 1960

Caption
The Above-Styled Cause came on to be heard before the 

Hon. George Lewis Bailes, Judge, without a jury, at 10:00 
a.m. on the 11th day of October, 1960, when the following 
proceedings and testimony was heard:

A ppearances

Messrs. Watts E. Davis and Bill Walker, Attorneys at 
Law, Birmingham, Alabama, for the City of Birmingham.

Messrs. Arthur D. Shores, Orzell Billingsley, Peter A. 
Hall, Oscar Adams and J. Richmond Pearson, Attorneys 
at Law, Birmingham, Alabama, for the defendant.

Reported by Jimmie Crumley.



1 6

Proceedings
Mr. Davis: If Your Honor please, by agreement of coun­

sel we would like, with the Court’s permission, to try 
Charles Billups along with Rev. F. L. Shuttlesworth on 
aiding and abetting.

The Court: Whatever you all agree upon.
Mr. Davis: All right.
Mr. Billingsley: Your Honor, on the cases of F. L. 

Shuttlesworth, 20789 and Charles Billups, 20778, we want 
to file first Motions to Strike in both cases.

The Court: Motions to Strike the complaint?
Mr. Billingsley: Yes.

[fol. 14] The Court: Are they identical?
Mr. Billingsley: Yes sir, they are identical except for 

the name.
The Court: Let the Motions to Strike be overruled.
Mr. Billingsley: We take an exception, Your Honor.
We also have some demurrers in both cases, Your Honor.
The Court: Let the demurrers be overruled in both cases 

and an exception noted in each instance.
Mr. Billingsley: I take an exception, if Your Honor 

please.
The Court: Counsel ready?
Mr. Walker: The City is ready, Your Honor.
Mr. Davis: We would like to have James Gober take 

the stand.
(Whereupon the witness, J ames E. Gober was called to 

the stand and duly sworn.)
Mr. Shores: Your Honor, before any questions are put 

to this witness we are going to object on the ground that 
his case is still pending and open and that any questions 
directed to him with regards to this defendant might tend 
to incriminate him, and for that reason we object to his 
testifying.

Mr. Davis: If the Court please, I don’t think it is the 
option of counsel to declare any immunity of this witness. 
I think it would be entirely up to the witness. I think we 
are being premature here in that nothing has been asked 
to tend to incriminate this witness as yet.



17

Mr. Shores: Your Honor, the further objection is that 
the case against this witness has not been decided and it 
may be tending to force the witness to testify against him­
self in violation of the constitution of the State of Alabama 
as well as the 14th Amendment to the United States Con­
stitution.

The Court: Well, off the record.
(Off the record.)
Mr. Pearson: If he were not a party to a crime that is 

alleged, his status would be as he said, he would have to 
[fol. 15] invoke the statute himself, but since he is a party 
to a crime that has been alleged and the further question 
has been invoked, and therefore, the avenues of appeal is 
still open, and any testimony he gives might be used, if it 
was later reversed and a new trial ordered, and, so, the 
option belongs to counsel as well as the defendant.

Mr. Davis: With Your Honor’s indulgence, I might de­
note an authority on this proposition. I refer to the case 
of City of Mobile versus McCowan Oil Company, 148 
Southern, 402. I don’t have the Alabama citation, I am 
sorry to say. In substance, without reading this opinion 
at length, the Supreme Court of Alabama has stated and 
has cited a long line of Alabama decisions, as well as 
Corpus Juris pointed out that the violation of a City Ordi­
nance does not rise to the dignity of a crime as protected 
by the 5th Amendment to the Constitution of the United 
States. This is an offense against the City of Birmingham 
and the Supreme Court has said on many occasions that is 
not a crime subject to the provision of the 5th Amendment 
where they might tend to involve themselves. And there 
are other cases cited in this McCowan Oil Company case 
I refer to. I think that has been the law of long standing 
in our state.

Mr. Pearson: I would like to say one thing. Counsel for 
tbe City of Birmingham does not say whether the Su­
preme Court of Alabama was speaking about a trial at 
city level or a trial at Circuit Court level, which would 
make a difference. I might concur with him if this trial 
was down at the City, but he doesn’t bring out that point.



18

Mr. Davis: The offense is still the same, the offense 
against a City Ordinance that brought a case into this 
court which was originally in the City which is tried de 
novo here by their choice.

Mr. Hall: If Your Honor please, even if this was city 
level and this defendant had been accused of a violation 
of the City Ordinance, the City could not force him to 
testify against himself under ordinary circumstances. For 
all intents and purposes, that is the position the witness 
finds himself in now. He has been accused and tried for 
alleged violation of the City Ordinance which, of course, 
is in Your Honor’s bosom at this point. No decision has 
[fol. 16] been made on it and there is a continuation of the 
trial so to speak. But what the prosecution is doing at 
this point is calling the defendant to testify against him­
self, whether that was in the City or here, and I simply do 
not believe the Law is such. I don’t know, I can’t quote 
pertinent authority, but I don’t believe if we were on the 
city level that a witness could be called to testify against 
himself. As a matter of fact, on the city level at the time 
of trial in the City Court no witness was called to testify 
against himself at that time. They could have been, they 
weren’t.

Mr. Davis: I might make one further observation. That 
this witness did testify in the earlier proceeding in this 
same cause, that is, on the lower level before the City 
Court, and it is my opinion that any immunity he might 
have had, had this been a crime, would have been waived 
in the earlier phases of this case. But for the information 
of counsel, this case, City of Mobile versus McCowan Oil 
Company, is an appeal from the Equity Court in the Mobile 
Division. I don’t think there is any merit in the argument 
that that only applies in the City Recorder’s Court, this 
is a case that came out of the Equity Division of the Mobile 
Circuit Court.

I still urge the further point that the witness has not 
claimed it and I don’t think counsel can claim it for this 
witness.

The Court: I think the counsel is the alter ego of a de­
fendant probably.



19

Mr. Davis: For all intents and purposes it hasn’t been 
shown in the record that these Counsel represent this boy 
in the Shuttlesworth case. I understand they represent 
him in a sit-in case, but this is not a sit-in case we are 
trying now. This is the Shuttlesworth and Billups case we 
are trying.

Mr. Pearson: We represent him in anything that grows 
out of the conduct of which this came out of. The case 
is still pending and any evidence he gives now might later 
be used against him, although it might be limited to im­
peachment, it certainly could be used against him.
[fol. 17] The Court: Well, I will give him the benefit of 
it and excuse him. You may be excused.

Mr. Davis: I would like to reserve an exception to the 
Court’s ruling.

(Witness excused.)
Mr. Davis: Call James Albert Davis.
(Whereupon J ames A lbert D avis was called to the wit­

ness stand and sworn.)
Mr. Shores: Your Honor, we want to offer the very 

same objection. He is in the same position as the former 
witness.

The Court: I didn’t remember your name.
The Witness: James Albert Davis.
The Court: Assuming the rule applies either positively 

or negatively, would it apply the same way to James Albert 
Davis as to James Gober?

Mr. Davis: I can’t see any distinction.
The Court: All right. You may be excused.
Mr. Davis: We reserve an exception.
(Witness excused.)



20

Charles L. P ierce, called as a w itness, being first duly 
sworn, was exam ined and testified as fo llow s:

Direct examination.

By Mr. Davis:
Q. Will you please state your full name to the Court.
A. C. L. Pierce.
Q. By whom are you employed, Mr. Pierce?
A. City of Birmingham.
Q. And in what capacity?
A. Detective.
Q. Were you so employed on March 30th and 31st of 

1960?
A. Yes sir.
Q. Were you so employed on April 1, 1960?
A. Yes sir.
Q. Mr. Pierce, were you present in the City’s Recorder’s 

Court, the Honorable William Conway presiding, on the 
evening of April 1, 1960 at which time Rev. F. L. Shuttles- 
[fol. 18] worth, or F. L. Shuttlesworth, was on trial for 
violation of a City Ordinance?

A. Yes sir, I was there.
Q. On that occasion did a James Gober make any state­

ment under oath and in the presence of the defendant 
Shuttlesworth, in the presence and hearing of the defen­
dant Shuttlesworth, and in the presence and hearing of 
his counsel on that occasion?

A. Yes sir, he did.
Q. Did he make any statements with reference to some­

one picking him up or riding him in their automobile from 
one place to another place on that occasion?

Mr. Hall: If Your Honor please, we object to the ques­
tion and any answer to the question, anything which oc­
curred in the trial below was taken down by a proper 
Court Reporter, we assume, and if counsel is referring to 
happenings there and wants to put sections in here, then 
he should bring such Reporter here and establish the fact 
that he did take it down. Detective Pierce has not been



21

qualified as a Reporter. His interest is adverse to that of 
this defendant. He is an employee of the City of Birming­
ham and one of the prosecutors of this action. I assume 
Detective Pierce initiated the first affidavit and complaint 
in this cause. He is an Investigating Officer.

If Counsel wants to establish what happened in the Court 
below, his avenues is open to him. He is an Officer of the 
City of Birmingham and he has a transcript and the Court 
Reporter is available to him. We object to Detective Pierce, 
any answer he gives would be purely hearsay, irrelevant 
and immaterial and incompetent.

Mr. Davis: Does You Honor care to hear from the City 
on this point? Number one, of course, these recordings of 
these proceedings were recorded by recording machine 
rather than by shorthand in the Recorder’s Court. We are 
talking about simply here about the hearsay proposition, 
and the proposition comes up as to whether this is an 
exception to the hearsay rule. We submit it was an ex­
ception. It was made in the presence of the defendant and 
[fol. 19] under oath and the right of cross examination was 
present and Counsel were present and every item of the 
defensive elements to except this testimony from the hear­
say rule occurs, and we submit that it is admissible. Of 
course, it is hearsay*, but it falls definitely within the ex­
ception to the rule prohibiting hearsay testimony.

Mr. Shores: Your Honor, the best evidence would come 
from these witnesses they attempted to place on the stand, 
the witnesses who testified there was a chance of incriminat­
ing himself, and they are attempting to do indirectly what 
they can’t do directly. This could be used only for impeach­
ment purposes and the exception to the hearsay rule could 
not applyr in this instance.

Mr. Davis: This rule would apply where the testimony 
of the witness Avas available. They have seen fit to avail 
themselves of an immunity or cloak to keep the Avitnesses 
themselves avIio made the statements from testifying, and 
in that situation I submit this testimony Avould be an ex­
ception to that evidence in the hearsay rule.

Mr. Hall: The only possibility of evading the hearsay 
nile would be for impeachment purposes. There is no testi­
mony before this Court upon this witness is called upon to



22

impeach. He can’t testify directly within that exception. 
If Counsel wants to establish what occurred in the Court 
below, he knows how to do it. He can’t evade the long 
established rule of evidence. The Court Reporter himself 
probably could do it, but certainly he couldn’t do it with a 
biased Police Officer or any other witness who may have 
been sitting in the Court Room down there. It would not 
come within the exception to the hearsay rule.

Mr. Davis: I might add that this question of bias and 
of Mr. Pierce’s interest in this matter would be—

The Court: No, I don’t think that would have any 
weight.

Mr. Davis: The hearsay rule applies where a written 
document is evidence of the transaction between the parties, 
but statements under oath where the defendant was present 
would clearly come within the exception of the hearsay 
rule.

Mr. Hall: These witnesses cannot testify because of 
incrimination, it cannot be done by indirection of what 
they testified to. Another man can’t come in and testify 
[foi. 20] as to what they may have said. This is purely 
hearsay and not within the exception to hearsay rule. If 
the City has a case against this defendant, they should 
establish it by clear proof, clear proof and clear testimony, 
and direct testimony, not by indirection, not by an escape 
mechanism from the hearsay rule. This is a violation to 
allow this witness to testify and there is no exception which 
would cover it.

The Court: I will sustain the objection to the question 
whether officer Pierce heard James Gober make a state­
ment.

Mr. Davis: If I might prolong this thing one moment 
further and make this remark, with the Court’s indulgence. 
The reason for the hearsay rule of evidence, number one, 
the person does not have the right to cross examine. Number 
two, the person making the statement was not under oath. 
And those two elements are certainly present here. The 
witness was under oath when he made the statement. He 
was in the presence of this defendant when he made the 
statement. This defendant had the right to cross examine 
him when he made the statement. Every element that makes



23

the hearsay rule objectionable has been eliminated by the 
factors that existed at the time these boys made this state­
ment, and I submit every element that makes hearsay 
objectionable has been met and we would like to reserve an 
exception if that is still the Court’s ruling.

The Court: Isn’t there one other thing, that the person 
whose interest was adversely affected by the statement 
affirmed or denied or remained silent? Is that one of them?

Mr. Davis: He had the opportunity to be heard. He 
may not have remained silent, that hasn’t been put forth.

The Court: Will there be evidence about whether the 
defendant upon the statement of Gober being made re­
mained silent or denied it?

Mr. Davis: There will be some statements.
The Court: All right. You may ask him.
Mr. Hall: We are going to take exception to that ruling 

[fol. 21] allowing this testimony in upon the grounds 
it is a violation of this defendant’s rights under the 
Laws of the Constitution of our State and under the 14th 
Amendment of the Constitution of the United States.

Q. Mr. Pierce, I will ask you if James Gober on the 
occasion we just talked about in the presence and hearing 
of this defendant and under oath made the remark of—I 
will ask you did he make any remark as to where he went 
on the evening of March 30,1960 ?

Mr. Hall: If Your Honor please, we object to the method 
of questioning this witness on direct examination. It is 
leading. He is putting words in the witness’ mouth. He is 
making this case. If he wants the witness to testify, he 
should phrase his questions differently.

The Court: May I inquire whether the witness heard 
Janies Gober in the presence of defendant Sliuttlesworth 
say anything about where he had been the afternoon before 
or two days before, whether it was the 30th or 31st or the 
1st of April ?

Mr. Hall: We would object to that question and the 
answer thereto on the grounds that an answer is irrelevant 
and immaterial and on further grounds the witness is 
incompetent to testify.



24

The Court: The Court thinks it would be well to let 
him answer that.

Mr. H all: We want an exception to His Honor’s ruling.
Mr. Davis: You may answer.
A. What was the question ?
The Court: Read it, please, Mr. Reporter.
(Question read)
A. I heard him testify that he was a student at Daniel 

Payne College.
Mr. Hall: If Your Honor please, we object. That is not 

a responsive answer as to whether he heard anything about 
where he had gone the day before.

The Court: I would leave that out.
Mr. Hall: We object to any voluntary statement not 

responsive to the question and we reserve an exception.
A. In response to questions by City Attorney Brecken- 

ridge, he stated—
Mr. Billingsley: We interpose an objection.

[fol. 22] The Court: No, I mean at the same time and 
place and in the presence of the defendant.

Mr. Billingsley: This is what we have in this situation. 
We have the City Attorney using the Court Reporter’s 
record from which he is questioning Mr. Pierce. Whether 
or not Mr. Pierce was present all during the trial I do not 
know, but it has to do with the trial which took place down 
in the City Hall, and this is a trial de novo. Now, except 
for impeachment purposes, the record should not he used 
in the trial of this case. Now, the City has—we seek direct 
testimony as to this whole charge of aiding and abetting 
which relates to the ordinance which we have here. It 
seems to me if it could be done, the best person to use, as 
far as the transcript of evidence is concerned, would be 
the Court Reporter. The Court Reporter as such, I don’t 
believe, would give this testimony, but we are not using 
the testimony. We are using Mr. Pierce to testify what is 
in that record there, and I question whether or not that 
record is accurate because it was taken off a machine and



25

it has not been established that this witness is competent 
in order to find this defendant guilty of the ordinance he 
is charged with violating. Then we come in with James 
Gober. James Gober is not before this Court. We are 
trying Rev. Shuttlesworth. Does this come in the form of 
a confession or how does it come? An admission against 
interest or whatever it is? If it is a confession, then Rev. 
Shuttlesworth did not make it. If it is an admission against 
interest, Rev. Shuttlesworth did not make it. But I fail to 
understand how a transcript of evidence in the Recorder’s 
Court can be used with Mr. Pierce acting as the witness 
to make a case for the City. The best way I could see 
to do it would be to have the Court Reporter to testify as 
to what is in that transcript. I just fail to see how he 
can establish that.

The Court: The question was not based upon the tran­
script. The question was based upon the fact vel non of 
the presence of this witness at that time and place hearing 
a statement or statements in the presence of the defendant 
on trial today. That is the basis on which the question is 
[fol. 23] propounded.

Mr. Hall: If Your Honor please, before he answers that, 
assuming that he is going to testify' with reference to some 
confession or some admission against interest by a man 
whom Your Honor has decided would not have to testify 
against himself, now, if this witness is going to establish 
testimony' which the man cannot be made to give, then 
certainly' he is in a peculiar light. And if it is a confession 
or admission against interest, before we testify we should 
be allowed to inquire into his knowledge whether or not 
he has familiarized himself with this transcript, if he read 
it or if he has an independent recollection.

The Court: Could we predemit the transcript and get it 
out of our minds ?

Mr. Hall: No sir. It is right in our face in front of the 
City Attorney. He was looking at it and reading from it.

The Court: Well, the Court isn’t.
Mr. Hall: But we know that question that the City At­

torney direct to the witness which Your Honor did not 
allow came from the transcript and was based on the tran­
script. So, if the City Attorney would dispose of the record



26

and get it out of our view then perhaps we could forget it, 
but since he is looking at it and consulting it and since Mr. 
Pierce was sitting at the table by him I suppose he has 
looked at it. I would like to question him as to whether 
he read the record and decided that is what happened, 
since they have had it and we haven’t had it.

The Court: You desire to make some inquiries on voir 
dire?

Mr. H all: Would Your Honor rule that I could?
The Court: Yes.
Mr. Hall: Mr. Pierce, have you seen the transcript of 

the record in this case?
A. I  have.
Mr. Hall: Have you read it?
A. I read it this morning.
Q. This morning was the first time you read it?
A. I think it was.
Q. You don’t recall having read it before?

[fol. 24] A. No, I don’t.
Mr. H all: Have you gone over this case with Mr. Davis, 

the attorney for the City?
A. No.
Q. Have you all discussed this matter?
A. Not in detail, no sir.
Q. You haven’t told him anything about what James 

Gober said or testified to ?
A. No, I haven’t.
Q. He doesn’t know what you are going to say?
A. I  read the transcript. He asked me if I wanted to 

read the transcript and I read the transcript.
Mr. Hall: You read the transcript this morning?
A. That’s right.
Mr. H all: And you did sit in with the City Attorney at 

the counsel table this morning, did you not?
A. I  was at the table, yes.



27

Mr. Hall: We agreed to let you sit in and you did sit in 
with Mr. Davis and you have been consulting with him?

A. I don’t know about any agreement. I did sit here.
Mr. Hall: Well, we did stipulate you could sit in and 

you did sit in at counsel table ?
A. That’s right.
Mr. Hall: Your Honor, we object to any answer this 

witness may make as not being of his own information, 
but having come from the record and having come from 
the City Attorney.

Mr. Davis: That hasn’t been established yet, that it 
came from this record. I think cross examination would be 
the proper place to establish that, if that be the case.

The Court: Let him answer.
Mr. Hall: If Your Honor please, we except.
Mr. Davis: Can we go back to the question, Mr. Reporter, 

and read it to the witness, please.
(Whereupon the last question propounded by Mr. Davis 

was read.)
[fol.25] A. He did.

Mr. Hall: If Your Honor please, he is answering Your 
Honor’s question rather than Mr. Davis’ question.

The Witness: Could I ask Your Honor, does Your Honor 
want me to testify as to what happened in Recorder’s 
Court or in so far as I know, my recollection, or does 
Your Honor want me to answer questions one at a time? 
I am a little confused.

The Court: It might keep it more direct and clear if 
you took one question at a time.

A. All right.
Q. I believe you said, yes, he did say where he went or 

that he had been someplace on March 30th. Is that your 
answer in substance?

A. Yes.
Q. Did he say where that place was on March 30th he 

went?



28

A. He said lie went to Rev. Shuttlesworth’s house.
Q. Did he make any remarks as to who was present 

when he arrived at Rev. Shuttlesworth’s house?
A. He said there were several people present. He named 

Rev. Shuttlesworth and the Rev. Billups. Said they were 
there.

Q. Did he mention that either Rev. Shuttlesworth or 
Rev. Billups made any statement there on that occasion?

Mr. Hall: If Your Honor please, we object. Gober him­
self might be incompetent to answer that question, and 
this witness certainly is incompetent. This is pure hearsay 
and it does not come within an exception to the hearsay 
rule as to whether this defendant made a statement in 
that meeting as to what a witness said at a hearing some 
other time as to what he said cannot bind this defendant 
here.

The Court: Overrule.
Mr. Hall: We except.
A. He testified that the sit-down demonstrations was 

discussed at the meeting.
Q. Did he state whether or not Rev. Shuttlesworth par­

ticipated in that discussion of the sit down demonstration?
A. He testified the meeting was in the living room of 

Rev. Shuttlesworth’s house and that Rev. Shuttlesworth 
[fol. 26] participated in the discussion about the sit down 
demonstrations.

Mr. H all: If Your Honor please, we would like to call the 
Court’s attention to the City Attorney consulting with the 
transcript of the record on the trial below in the City 
Court. We would like for this record to show that in the 
process of asking this witness questions.

The Court: All right.
Mr. Davis: I believe there was an objection. Did the 

Court rule on it? You just wanted the record to show 
something?

Mr. H all: The Court agreed it would be shown.
Q. Did he make any remark or statement that anyone 

sought volunteers or participants in this demonstration.



29

Mr. Shores: Your Honor, that is purely leading there.
Mr. Davis: I asked if anyone—he if made a remark that 

anyone.
Mr. Hall: If Your Honor please, we object. He is bring­

ing in anyone. Anyone isn’t on trial here and certainly 
what this witness said couldn’t bind anyone not before 
this Court and not in the presence of this Court. The way 
the question was phrased is leading and putting words in 
the witness’ mouth.

The Court: Could I hear that question?
Mr. Davis: I don’t mind rephrasing the question if the 

Court would like.
Q. Did the witness say that Shuttlesworth sought vol­

unteers for this demonstration, this sit in demonstration?
V

Mr. Hall: We object on the grounds the question is 
improper and the answer would be incompetent.

The Court: Overrule.
Mr. Hall: We except.
A. He testified that Rev. Shuttlesworth asked for vol­

unteers to participate in the sit down demonstrations.
Q. Did I understand you correct, Mr. Pierce, to say that 

he stated Rev. Billups was there at this meeting also?
Mr. Hall: If Your Honor please, we object to this 

leading.
[fol. 27] Mr. Davis: I asked him if I  understood him to 
say that ?

A. He stated that Rev. Billups was there in the meeting.
Q. Did he make any reference to any list being made at 

this meeting held at Rev. Shuttlesworth’s house?
A. He did.

Mr. Hall: If Your Honor please, Counsel is still leading. 
He is asking the witness whether any reference was made 
to a list being made.

The Court: Would it make it legal to say whether or 
not any discussion had about a list being made? Doesn’t 
whether or not save it from being leading?

Mr. Hall: I don’t think so, Your Honor. I think any 
reference by Counsel to a list being made is suggestive to



30

this witness and, frankly, I think any reference at all would 
be improper. I object strenuously to prefacing the ques­
tion by mentioning of a list by Counsel.

The Court: Please let him answer.
Mr. Hall: We except.
A. He testified that there was a list made but he didn’t 

know who made the list.
Q. I will ask you if he made any response to a question 

asked by Counsel for the City of Birmingham on that 
occasion with regard to whether or not anyone was to 
furnish representation for them in Court growing out of 
this demonstration.

Mr. Shores: Your Honor, we object to that question 
because it doesn’t say who. We want the record to show 
if he is still testifying as to what Gober said, we want the 
record to show he is still testifying to that hearsay testi­
mony, and if he is referring to Rev. Shuttlesworth, we would 
like the record to show that, and we would like him to 
rephrase that question.

The Court: Did you understand the question?
The Witness: Yes sir.
The Court: Please answer it. -
Mr. Shores: We except.

[fol. 28] A. I don’t remember Gober testifying as to any­
thing with regard to any defense.

Q. I  will ask you, Mr. Pierce, if on this same evening of 
April 1, 1960 in the presence and hearing of Rev. Shut­
tlesworth and Rev. Billups if James Albert Davis, while 
under oath, made any statements concerning this meeting 
held at Rev. Shuttlesworth’s house?

Mr. H all: If Your Honor please, we object to any testi­
mony this witness may give with reference to any testimony 
that James Albert Davis might have given on the trial in 
the City Court on the same grounds that we objected to 
his testimony in reference to Gober, on the grounds that it 
is pure hearsay and inadmissible. On the further ground 
that this witness is incompetent to testify as to anything 
that might have occurred in the City Court. This is certainly



31

not the best evidence. And on the further grounds that it 
is irrelevant and immaterial.

The Court: Please let him answer.
Mr. Hall: Take exception, Your Honor.
A. What was the question, now?
The Court: Read it, Mr. Reporter.
(Question read)
A. He did.
Q. Will you tell the Court what, if anything, he said on 

this occasion that took place at the house of Rev. Shuttles­
worth at this hearing or discussion wherein both Rev. 
Shuttlesworth and Rev. Billups were present.

Mr. Hall: If Your Honor please, we object to the ques­
tion as being improper. We object to any answer as being 
incompetent, inadmissible under the hearsay rule.

The Court: Overrule.
Mr. Billingsley: Take exception.
A. He testified that Rev. Billups came to his school, 

Daniel Payne College, in a car and carried him to Rev. 
Shuttlesworth’s house. He further testified that when he 
arrived there there were.several people there, among which 
[fol. 29] was Rev. Shuttlesworth and Rev. Shuttlesworth’s 
wife and a number of other students from Daniel Payne 
College. He testified that in response to Rev. Shuttlesworth 
asking for volunteers to participate in the sit down strikes 
that he volunteered to go to Pizitz at 10:30 and take part 
in the sit down demonstrations. He further testified that a 
list was made but he didn’t know who made the list. He 
thought the list was compiled by—

Mr. Billingsley: I object. I doubt if the answer he is 
giving is responsive to the question. He is just making 
statements as to what was allegedly said.

The Court: Please leave it in.
Mr. Billingsley: We except.
A. He said he didn’t know or wasn’t sure who made the 

list and he testified that Rev. Shuttlesworth didn’t say that 
he would furnish Counsel but told him or made the an-



32

nouncement at that time that he would get them out of 
jail.

Mr. Hall: If Your Honor please, we would like to ask 
the witness at this time before making an objection whether 
or not he is quoting the witness verbatim or if this is his 
interpretation of the alleged answer?

A. I am attempting to quote him verbatim.
Mr. H all: You are attempting to quote him verbatim?
A. Yes.
Mr. H all: This is not your interpretation?
A. That’s right.
Mr. H all: At what time was the trial in City Court?
A. It was at night. It was later than 7 :30.
Mr. H all: What date was it?
A. My best recollection is April 1st.
Mr. Hall: So, you are quoting him verbatim since last 

April 1st?
A. I am attempting to to the best of my recollection.
Mr. Hall: Your Honor, we object to this testimony and 

move it be excluded on the grounds it is incompetent and 
a violation of the hearsay rule. On the further grounds 
it is a violation of this defendant’s rights. If this testimony 
is allowed to stand it is a violation of this defendant’s rights 
to a fair trial, equal protection under the law as guaranteed 
[fol. 30] him by our own State Laws and our State Constitu­
tion and by the 14th Amendment to the Constitution of the 
United States.

The Court: Overrule.
Mr. H all: We want an exception.
Q. Mr. Pierce, are you familiar with where Rev. Shut- 

tlesworth’s residence is situated ?
A. Yes sir, I know where his residence is.
Q. Is that in the City of Birmingham?



33

A. Yes sir.
Q. Do you know it to be a fact that a number of boys—or 

I will put it this way. Do you know it to be a fact that 
James Gober and James Albert Davis did participate in 
sit down or sit-in demonstrations on the day of March 31, 
1960?

A. Yes sir, they did.
Q. Do you know of your own knowledge that other 

colored boys on that same date participated in sit-in demon­
strations in down town stores in the City of Birmingham?

Mr. Billingsley: I object to that, as to other colored boys 
as to participation in sit-ins. He brought in James Gober 
and James Albert Davis and now he is bringing in other 
persons.

Q. Let me put it this way. Other boys who attended the 
meeting at Bev. Shuttlesworth’s house?

Mr. Billinsgley: We object. It is not shown Detective 
Pierce knows other boys attended this meeting at Rev. 
Shuttlesworth’s house.

The Court: Let him answer.
Mr. Billingsley: We except.
A. Yes.
Q. Have you been told by other persons who participated 

in the sit-in demonstrations that they did attend this 
discussion at Rev. Shuttlesworth’s house on March 30,1960?

Mr. Billingsley: We object to that.
The Court: Unless they said it in the defendant’s presence 

[fol. 31] I think probably it ought to be left out,
Mr. Davis: We withdraw the question.
Q. Did either Gober or Davis while at that Court hearing 

and under the conditions we have previously outlined state 
that other persons were present—I am speaking of in the 
Court room now—did they state that other persons were 
present who did participate in these demonstrations at Rev. 
Shuttlesworth’s house on March 30, 1960?

A. Yes sir.
Q. Mr. Pierce, on the occasion of the trial in Recorder’s 

Court in City Hall on April 1, 1960 did Rev. Shuttlesworth



36

in a publicly owned place and whether they were peaceably 
demonstrating, which we have a right to do. We don’t 
have that at all, because there is no testimony to that 
effect.

We submit the testimony that was given is incompetent 
because it was hearsay testimony. And on the grounds that 
there is no showing in this case against Eev. Shuttlesworth 
that these people were boisterous or violent or did any­
thing which was in violation of law, and how could he he 
guilty of aiding and abetting violation of the law?

I submit the City has failed to make out a case flagrantly 
in the case of Eev. Shuttlesworth and Eev. Billups.

I will also file, in addition to that, Judge, a written 
motion to that effect with the Court’s permission.

The Court: Yes. I overrule.
Mr. Hall: If Your Honor please, we want an exception 

to Your Honor’s ruling.
Mr. H all: If Your Honor please, we rest.
The Court: All right. I think, to preserve the record 

perfectly, your last motion should include both defendants 
that are on trial together.
[fol. 34] Mr. Adams: Yes sir.

The Court: All right.
Mr. Davis: Judge, we have nothing further.
Judge, the City doesn’t care to argue on the assumption 

and stipulation that Counsel for the Defense would not 
see fit to argue the case.

The Court: What say the defense ?
Mr. Hall: If Your Honor please, could we have a short

recess'?
The Court: Please let’s everybody come back at 11:20.
(Whereupon there was a short recess, and there being 

no further arguments by Counsel, the following occurred):
The Court: If Counsel will meet back with me at 3:30 

P.M., I will give the judgments in these cases.
(Whereupon Court was recessed until 3 :30 P.M., at which 

time the following occurred):
[fol. 35] The Court: May I ask if James Albert Davis is 
present?



37

A Voice: Yes.
The Court: James Gober. Roy Hutchinson. Robert J. 

King. Robert L. Parker, Jr. Robert D. Sanders. Jessie 
Walker.

A Voice: Here.
The Court: William West.
A Voice: Here.
The Court: Roosevelt Westmoreland and Willie J.

Willis. Anyone whose name I didn’t call among the stu­
dents? Charles Billups.

A Voice: Here.
The Court: F. L. Shuttlesworth.
A Voice: Here.

S entence

The Court: Taking the Charge of Trespass After Warn­
ing as applied to each of the names just called, there was 
a slight change in the previous sentence. The Court finds 
the defendant and each of those called, finds the defendant 
guilty as charged in the complaint and fixes the punishment 
and fine at $100.00 and 30 days hard labor for the City. 
I have indicated that appeal bond will probably be filed.

Mr. Shores: Yes sir. But, Your Honor, before these 
appeal bonds are filed we would like for you to suspend 
the sentence to give us a chance to file a motion for a new 
trial and continue them under the same bond.

The Court: What do you say to that, Mr. Walker?
Mr. Walker: I have no objection to it. In other words, he 

lias a right to file a motion for new trial. I have no objec­
tion to it. In other words, if they want to be free on the 
same bond and if that is agreeable to the Court, it is 
agreeable with me.

The Court: Mr. Davis, a motion was just made in each 
of the Trespass After Warning cases that—of you will, 
restate the motion, please.

Mr. Shores: That the sentence in each case be suspended 
and the defendants be continued under the same bond until 
we file and have a motion for a new trial determined.

Mr. Davis: Judge, I think we prefer things to go in their 
normal course.



38

[fol. 36] The Court: If there is to be appeal bonds in each 
case, I do not see how any hardship or prejudice would 
result from letting it be done forthwith.

Mr. Shores: Well, Your Honor, we are in a position to 
file it forthwith, but, as Counsel knows, these are quasi­
criminal cases and to file an appeal bond now this Court 
would really lose jurisdiction, and if His Honor doesn’t 
see fit to suspend the sentence, we would beg permission 
to file a motion for a new trial and let the motion be entered 
as filed and Your Honor can enter his ruling and give us 
a chance to file the motions within the next day or two 
and we will perfect the appeals today.

The Court: Would you mind giving the Court the benefit 
of your thought about any advantage or any favorable 
result or any profit to the defendants by doing that?

Mr. Shores: In a motion for a new trial we feel we could 
re-raise several points that were not really raised during 
the trial and indicate them as error in this motion for a 
new trial. In other words, if Your Honor would entertain 
them, we would make a motion for a new trial at this time 
and beg leave of the Court for time to specify the grounds 
for a new trial and let the record show that the motion 
for a new trial was filed immediately after the sentence 
and that the bond would be filed after—let it be shown the 
bond is filed after the motion for a new trial is ruled upon.

Mr. Adams: Judge, I think one of the thoughts in mind 
here is it is almost axiomatic for lawyers that a motion for 
a new trial should be filed after the sentence of the de­
fendant, and it might be considered negligence if such a 
motion were not filed regardless of what the Court’s de­
cision may be on it. And we also are in this position in 
these cases. I t is my understanding that the motion for 
new trial does not necessarily suspend the running of time 
in which the record must be on file with the Court of 
Appeals and, therefore, in order to save the time in which 
we have to perfect the appeal and not let the time just 
[fol. 37] passing when the motion is before Your Honor 
consume the time we have to file our record on appeal, we 
are asking that the motion be allowed to be filed before we 
file the notice of appeal, and if the Court rules against 
us on the motion we will file immediately our appeal.



39

Now, in the event that the Court sees fit to want to dis­
pose of the thing immediately, we would like to file now 
a motion orally after sentencing, which has been done, 
sentence has been given, we would file our motion orally 
and subsequently put it in writing, and the Judge may rule, 
if he is so disposed, now, as to how he feels about it. But 
we think, as officers of the Court and lawyers, that a motion 
for a new trial certainly is consistent with good practice 
and may be considered error on the part of Counsel if such 
were not filed. That is our thought about it.

The Court: All right. You want the execution of sen­
tence held in abeyance until such time as your motion for 
new trials can be formally presented?

Mr. Shores: That is our motion, Your Honor.
The Court: Would there be anything—would there be 

any advantage to the defendants to put that motion in 
writing formally?

Mr. Shores: We would have to designate, and it would 
take some time to spell out the various grounds that we feel 
on which we are entitled to a new hearing or a new trial. 
We could have it done by Monday.

The Court: I won’t be here Monday.
Mr. Shores: Well, the following Monday or any date 

Your Honor sees fit. As I say, it is not going to jeopardize 
the City to grant this little stay.

The Court: If there is any good or any advantage to be 
had, the Court wants it had. I just didn’t see how there 
was to be any. Now, suppose we do it this way, then. As 
I understand the law, I can suspend the judgment of sen­
tence for 24 hours, and I am doubtful about being able to 
do it longer in City appeal cases. Would this time tomor­
row be too soon?

It seems to me that you have here the ten students and 
the Court thinks they were misused and misled into a viola- 
[fol. 38] tion of a City Ordinance and has so ruled. Now, 
if there would be any stronger position before the Court of 
Appeals to have also a denied motion for a new trial, I 
would want them to have that.

Mr. Shores: We feel they would, Your Honor. Could 
lour Honor do this? As indicated, we have made our mo­
tion for a new trial and would Yrour Honor give us leave_



40

I mean yon can rule on the motion and deny the motion now 
and give us leave to put it in writing for the record?

The Court: Sure.
Mr. Shores: Then we would immediately make our ap­

peal bonds and the sequence of the record would show a 
motion for a new trial, the motion overruled, and the appeal 
perfected.

The Court: What says the City?
Mr. Davis: I am not sure I see what he is trying to 

accomplish other than the fact he would like to clutter this 
record further, but I would prefer not to yield on any point 
on this thing. Of course, they are entitled to file their 
motion. I have no objection to giving them several days 
to file their motion, but other than that, I wouldn’t want to 
be agreeable to any extensions or waivers as to bonds or 
things of that description.

Mr. Shores: We will file the bond today. We are asking 
we be permitted to spell out the oral motion we have al­
ready made.

The Court: After your appeal bond is filed?
Mr. Shores: That’s right.
The Court: I think that is all right.
Well, it was the same judgment and sentence in each of 

the student cases.
That brings us, I believe, to three other cases, the case 

of Charles Billups charged with aiding and abetting. The 
Court finds the defendant guilty as charged in the complaint 
and fixes his punishment and fine in the sum of $25.00 and 
30 days hard labor for the City of Birmingham.

In the case of F. L. Shuttlesworth, charged with aiding 
and abetting, the Court finds the defendant guilty as 
[fol. 39] charged in the complaint and fixes his punishment 
at a fine in the sum of $100.00 and 180 days hard labor for 
the City.

The case of F. L. Shuttlesworth, charged with false infor­
mation, the defendant moved for a dismissal and the motion 
was granted.

Mr. Shores: Your Honor, as to those last two c a s e s  we 
would like to move orally for a motion for a new trial 
with leave to file written motion within a reasonable time.

The Court: With the appeal bonds forthwith made?



41

Mr. Shores: That’s right.
The Court: All right.
Mr. Shores: How long will Your Honor give us to write 

those motions up since the bonds will have already been 
filed! May we have a couple weeks!

The Court: Well, haven’t we conscientiously canvassed 
the issues!

Mr. Shores: We have.
The Court: Is there anything to be gained by thrashing 

the straw again?
Mr. Shores: We would just like to have it ruled on. Let 

the record show that the motion is denied.
The Court: All right, so ordered.
Mr. Shores: Then, we will make note of an appeal in 

each case separately and severally and will forthwith file 
the appeal bond. What will that bond be, Your Honor?

The Court: $300.00 I believe is mentioned in each case.
The foregoing was all the testimony and oral proceedings.

[fol. 40] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).

[fol. 42]
I n  the Court of A ppeals of A labama

F. L. S huttlesworth, Appellant, 
vs.

T he City of B irmingham , Appellee.

A ssignment of E rrors

The Appellant says that there is manifest error in the 
foregoing Transcript of the record of the proceedings had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this appel­
lant, and for error assigns each of the following separately 
and severally:



42

1. The Court erred in overruling Appellant’s Motion to 
Strike, filed in this cause. (Tr. 2, 3, 7 & 14)

2. The Court erred in overruling Appellant’s Demurrers 
filed in this cause. (Tr. 3, 4, 7 & 14)

3. The Court erred in overruling Appellant’s Motion to 
Exclude the Evidence, filed in this cause. (Tr. 5, 6, 7 & 33)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9,10,11 & 39)

5. The Court erred in allowing Detective Charles L. 
Pierce, a Police Officer of the City of Birmingham, to testify 
as to his recollection of testimony given in the Recorder’s 
Court of the City of Birmingham, by witnesses in the trial 
of this matter in aforesaid Recorder’s Court. (Tr. 17-31)

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, Oscar W. Adams, J. Richmond Pearson, At­
torneys for Appellant.

[fol. 43] Certificate of Service (omitted in printing).

[fol. 44]
I n  the Court of A ppeals of the

S tate of A labama ................. J udicial D epartment

October T erm, 1960-61
6 Div. 802

F. L. S huttlesworth, 

v.
City of B irmingham.

Appeal from Jefferson Circuit Court

November 2,1960
Certificate F iled 

January 26,1961
T ranscript F iled 

April 18,1961



43

Come the parties by attorneys, and argue and submit this 
cause for decision.

Oeder of A ffirmance— May 30,1961
Come the parties by attorneys, and the record and mat­

ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is 
considered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that the 
judgment of the Circuit Court be in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.

[fol. 45]
I n  the Court of A ppeals of the

State of A labama................. J udicial D epartment

October Term, 1960-61
6 Div. 802

F. L. S huttlesworth, 

v.
City of B irmingham .

Appeal from Jefferson Circuit Court

Opinion—May 30,1961
Cates, Judge: Appellant was convicted in the Circuit 

Court of Jefferson County of violating §824 of the General 
City Code of Birmingham of 1944, which reads as follows:

“It shall be unlawful for any person to incite, or aid or 
abet in, the violation of any law or ordinance of the 
city, or any provision of state law, the violation of 
which is a misdemeanor.”

[fol. 46] The particular corollary crime of which he was 
accused of inciting others to commit is found in §1436 of the 
City Code. This section makes it an offense to remain on 
the premises of another after a warning. See James Gober



44

v. City of Birmingham, 6 Div. 797 (Ms.), -----  Ala. App.
—. this day decided.
We can only consider one point raised by the assign­

ments of error and the propositions of law and argument,
i. e., the sufficiency of the evidence to show a violation of 
§824, supra.

The statement of the case set forth in appellant’s brief 
(which we are entitled to rely upon without regard to the 
record itself in civil cases) is that “Shuttlesworth asked 
for volunteers, and that there were some volunteers to take 
part in, ‘sit-down’ demonstrations” ; Shuttlesworth prom­
ised to get them out of jail.

The appellant’s argument on this point deliberately 
evades the effect of the word “incite” in the city ordinance, 
and deals solely with the joint responsibility of an aider 
and abetter. It is sufficient to answer this argument by a 
quotation from Jowitt’s Dictionary of English Law, p. 953:

“Everyone who incites any person to commit a crime 
is guilty of a common law misdemeanour, even though 
the crime is not committed. If the crime is actually 
committed, he is an accessory before the fact in the 
case of felony, and equally guilty, in the case of treason 
or misdemeanour, with the person who commits the 
crime.”

A sit-down demonstration being a form of trespass after 
warning, denotes a violation of both State law and espe­
cially of §1436 of the City Code, supra.

THere is no question of the restriction of any right of 
free speech or other assimilated right derived from the 
[fol. 47] Fourteenth Amendment, since the appellant coun­
seled the college students not merely to ask service in a 
restaurant, but urged, convinced and arranged for them 
to remain on the premises presumably for an indefinite 
period of time. There is a great deal of analogy to the 
sit-down strikes in the automobile industry referred to in 
National Labor Relations Board v. Fansteel Metallurgical 
{Jorp., 306 U. S. 240.
^ A s  presented by the appellant’s assignments of error and 
brief, the judgment below is due to be

Affirmed.



45

I n the Court of A ppeals of the

S tate of A labama................. J udicial D epartment

October Term, 1960-61
6Div. 802

F. L. S huttlesworth, 

v.
City of B irmingham .

Appeal from Jefferson Circuit Court

[fol. 48]

A pplication for R ehearing— June 14,1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant appel­
lant a rehearing in said cause, and to reverse, revise and 
hold for naught its Judgment rendered on to-wit, the 30th 
day of May, 1961, and affirming the Judgment of the 
Circuit Court of Jefferson County, Alabama, and to enter 
an Order, reversing said Judgment.

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Order Overruling— June 20,1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Cates, Judge.



46

I n  the Court of A ppeals of the 
S tate of A labama

Opinion on R ehearing—June 20,1961
Cates, Judge: The application for rehearing in this case 

is supported by a brief which contains two propositions of 
law, both of which are predicated on the appellant’s having 
been convicted under §1436 of the General City Code of 
Birmingham.

This appellant was convicted of inciting others to violate 
§1436. The propositions accordingly have no bearing on 
the facts.

Application Overruled.

[fol. 49]

[fol. 49a] [File endorsement omitted]

Sta^mnrsnasmmmmiim

I n  the S upreme Court of A labama 

No. 764 Sixth Division
Ex Parte F. L. Shuttlesworth

F. L. S huttlesworth, Appellant, 
City of B irmingham, Appellee.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., J. Richmond Pearson, Oscar W. Adams, Jr., 
Attorney for Appellant.

P roceedings on P etition for Certiorari

July 5,1961 Submitted on Briefs
September 25,1961 Writ Denied: No Opinion
October 4,1961 Application for Rehearing Filed
November 16, 1961 Application for Rehearing Over­

ruled.



47

[fol. 49b]
No. 764 Sixth Division

Ex P arte : F. L. Shuttlesworth 
I n the S upkeme Court of A labama

F. L. S huttlesworth, Appellant, 
vs.

City of B irmingham, Appellee.

P etition for Certiorari— Filed July 5,1961
[fol. 50]

To the Honorable Chief Justice and Associate Justice 
of the Supreme Court of Alabama

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J. Richmond Pearson, and re­
spectfully petitions this Honorable Court to review, revise, 
reverse and hold for naught that certain judgment of the 
Court of Appeals, on to-wit: May 30, 1961, wherein F. L. 
Shuttlesworth was Appellant and the City of Birmingham 
was Appellee, which Judgment affirms the Judgment of 
the Circuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court 
of Appeals for a Rehearing of said cause and Brief in 
support thereof were duly filed by your petitioner within 
the time required by law, and that said application for 
rehearing was overruled by said Court of Appeals on the 
20th day of June, 1961.

3. Your petitioner respectfully shows unto the Court that 
this cause arose from a complaint filed by the City of Birm­
ingham, charging your petitioner as follows:

“Comes the City of Birmingham, Alabama, a munici­
pal corporation, and complains that F. L. Shuttles-



worth, within twelve months before the beginning of 
this prosecution, and within the City of Birmingham 
or the police jurisdiction thereof, did incite or aid or 
abet in the violation of an ordinance of the City, to-wit, 
Section 1436 of the General City Code of Birmingham 
[fol. 51] of 1944, in that F. L. Shuttlesworth did incite 
or aid or abet another person to go or remain on the 
premises of another after being warned not to do so, 
contrary to and in violation of Section 824 of the Gen­
eral City Code of Birmingham of 1944.”

4. Your petitioner filed a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the Com­
plaint was so vague and indefinite as not to apprise the 
Appellant of what he was called upon to defend, and fur­
ther, that the ordinances which formed the basis of the 
prosecution, as applied to appellant, constituted an abridge­
ment of the privileges and immunities guaranteed by the 
Constitution of the United States and that the ordinances 
were unconstitutional on their face.

5. The Court overruled the Motion to Quash and the 
Demurrers whereupon petitioner was tried without a jury, 
and was found guilty as charged, and fined One Hundred 
($100.00) Dollars and costs, and sentenced to a term of 
Ninety (90) days of hard labor for the City of Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence, at the close of the City’s case, which Motion was 
denied. After judgment and sentences, petitioner filed a 
Motion for a New Trial, which Motion was denied, and 
petitioner perfected his appeal.

7. Your petitioner further shows unto Your Honors that 
the Court of Appeals erred in affirming and failing to re­
verse said cause, in the following ways, to-wit: The Court 
based its judgment in this cause upon the opinion judgment 
rendered in the case of James Albert Davis vs. City of 
Birmingham, Sixth Division—797, decided May 30, 1961.



49

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows: (jA /  / L i

A. That the Ordinances and Complaint, the basis of the !'■■ 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in viola­
tion of the Fourteenth Amendment to the United States 
Constitution.

b. That the Ordinance and Complaint, the basis of the - 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of the 
equal protection of the laws, all in violation of the Four­
teenth Amendment to the United States Constitution.
[fol. 52] The Court of Appeals erred in failing to rule 
that the conviction of petitioner was a violation of due & ' 
process of law, an abridgement of the privileges and im­
munities of the petitioner, in that the petitioner was denied 
equal protection of the law, all in violation of the Four­
teenth Amendment to the Constitution of the United States.

Wherefore, Your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the seal 
of this Court, directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete transcript of record, and all 
proceedings of said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that 
this cause may be reviewed and determined by this Honor­
able Court, and that this Court thereupon proceed to re­
new and correct the errors complained of and to reverse 
the Judgment of the Court of Appeals or render such 
Judgment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi­
cate of Affirmance of said cause, during the pendency of 
this petition.

And petitioner prays for such other, further and addi­
tional relief in the premises as to this Court may seem



50

appropriate, and to which he may he entitled, and your 
petitioner will ever pray.

Respectfully submitted,

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
By Orzell Billingsley, Jr., Attorneys for Appellant.

[fol. 53] Duly sworn to by Orzell Billingsley, Jr., jurat 
omitted in printing.

Certificate of Service (omitted in printing).

[fol. 54]
In  the S upreme Court of A labama 

No. 764 Sixth Division
Ex P arte : F. L. Shuttlesworth

F. L. S huttlesworth, Appellant, 
vs.

City of B irmingham, Appellee.

A pplication for R ehearing— Filed October 4,1961
Now comes Appellant, in the above styled cause, and re­

spectfully moves this Honorable Court to grant Appellant 
a Rehearing in said cause, and reverse, revise and hold for 
naught its Judgment rendered on to-wit, the 21st day of 
September, 1961, denying appellant the Writ of Certiorari 
and dismissing the petition, and to enter an Order rein­
stating appellant’s petition, and directing that a Writ of 
Certiorari be issued out of and under the Seal of this 
Court, to the Court of Appeals of Alabama, to the end that 
this cause may be reviewed and determined by this Hon­
orable Court.



51

Appellant further moves the Court to grant a Stay of 
Execution in this cause, during the pendency of this Appli­
cation for a Rehearing.

Submitted herewith is a Brief and Argument, in support 
of said Motion.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, J. Richmond Pearson, At­
torneys for Appellant.

/ s /  Orzell B illingsley, J e .

[fol. 55]
I n the S upreme Court of A labama

The Court met pursuant to adjournment
Present: All the Justices 

(Lawson’s Division Sitting)
6th Div. 764

Ex P arte : F. L. S huttlesworth, Petitioner

Petition for W rit of Certiorari to the Court of A ppeals 

(Re: F L. Shuttlesworth v. City of Birmingham) 
Jefferson Circuit Court

Order Overruling—November 16,1961
It is hereby ordered that the application for rehearing 

filed on October 4, 1961, be and the same is hereby over­
ruled.

Livingston, C. J., Lawson, Stakely and Merrill, JJ ., 
concur.

[fol. 56] Clerks’ Certificates to foregoing transcript 
(omitted in printing).



52

[fol. 1]
I n the Circuit Court of the T enth  J udicial Circuit 

of A labama, in  and for J efferson County

No. 20778

T he City of B irmingham , 

vs.
Charles B illups.

To-Wit:
A ppeal B ond— Filed May 4, 1960

The State of Alabama )
) City of Birmingham 

Jefferson County. )
We, Charles Billups, principal and Jas Esdale sureties, 

acknowledge ourselves indebted to the City of Birmingham, 
a municipal corporation, in the sum of Three Hundred— 
no/100 Dollars, for the payment of which, well and truly 
to be made, we bind ourselves, our administrators, and 
executors. But the condition of the above obligation is sucli, 
that whereas the above bounden principal was tried and 
convicted on the charge of

Count 1. Aiding and Abetting Sec 824 GCC
Count 2................................................................................
Count 3.................................................................................

and has prayed and obtained an appeal to the Circuit Court 
of Jefferson County, Alabama, from the judgment of the 
Recorder’s Court of the City of Birmingham, adjudging 
him to pay a fine of One Hundred and no/100 Dollars, 
Costs Five Dollars; and to perform hard labor for 180 days, 
rendered the 4 day of April 1960.

Now, if the said principal shall appear at present Term 
of the Circuit Court of Jefferson County, Alabama, and 
from term to term thereafter until discharged by law, 
then this obligation to be void, otherwise to remain in



53

full force and effect. And as against this obligation we 
waive all right under the laws of Alabama to claim any 
personal property as exempt from levy and sale.

Witness our haed and seals this 4 day of April 1960.
Charles Billups (L.S.), 3516 N 64th PI, Jas. Esdale 

(L.S.), 809 No 31 St., By Lacey Alexander (L.S.), 
Atty In fact. a

Approved 4 day of April 1960.
William Conway, Recorder of the City of Birming­

ham.

[File endorsement omitted]

[fol. 2]
I n  the Circuit Court of the T enth  J udicial Circuit 

of A labama

No. 20778

City of B irmingham, a Municipal corporation, Plaintiff,
v.

Charles B illups, Defendant.

Complaint—Filed October 11,1960
Comes the City of Birmingham, Alabama, a municipal 

corporation, and complains that Charles Billups, within 
twelve months before the beginning of this prosecution, 
and within the City of Birmingham or the police juris­
diction thereof, did incite or aid or abet in the violation 
of an ordinance of the City, to-wit, Section 1436 of the 
General City Code of Birmingham of 1944, in that Charles 
Billups did incite or aid or abet another person to go or 
remain on the premises of another after being warned not 
to do so, contrary to and in violation of Section 824 of the 
General City Code of Birmingham of 1944.

Watts E. Davis, Attorney for City of Birmingham.

[F ile  endorsem ent om itted]



I n the Circuit Court of the T enth  J udicial Circuit
of A labama

No. 20778

54
i

City of B irmingham,

vs.
Charles B illups, Defendant.

Motion to S trike— Filed October 11, 1960
Comes now Charles Billups, defendant in this cause, and 

moves to strike the complaint in this cause, and as grounds 
for said Motion, sets out and assigns the following, sepa­
rately and severally:

1. That the complaint, affidavit, etc., is not sworn to 
in this cause.

2. That the allegations of the said complaint are so 
vague and indefinite, as not to apprise this defendant of 
what he is called upon to defend.

3. That the ordinances or statutes upon which are 
founded the complaint in this cause, as applied to this de­
fendant, as a citizen of the State of Alabama, and of the 
United States, constitute an abridgment of the freedom 
[fol. 3] of assembly, speech and liberties secured to the 
Defendant, by the Constitution and laws of the State of 
Alabama and the Fourteenth Amendment of the Consti­
tution of the United States of America.

4. That the said ordinances or statutes which are the 
basis for the affidavit, information or complaint in this 
cause, as applied to the defendant, constitute an abridg­
ment of privileges and immunities guaranteed defendant, 
as a citizen of the United States, in violation of the Con­
stitution and laws of the State of Alabama, and of the 
Fourteenth Amendment of the United States Constitution.

5. That Sections 824 and 1436 of the General City Code 
of the City of Birmingham, as applied to this defendant,



55

a Negro citizen of the United States, constitute a denial 
of due process and equal protection of law, in violation 
of the Fourteenth Amendment to the Constitution of the 
United States of America.

6. That the said affidavit, information or complaint, 
does not charge any offense, which is cognizable by this 
Court.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. R. Pearson, Attorneys 
for Defendant.

[File endorsement omitted]

I n  the Circuit Court of the T enth  J udicial Circuit 
of A labama

No. 20778

City of B irmingham , 

vs.
Charles B illups, Defendant.

D emurrers— Filed October 11, 1960
Comes now Charles Billups, defendant in this cause, and 

demurs to the complaint in this cause, and to each and 
every count thereof, separately and severally, and as 
grounds for such demurrer sets out and assigns the follow­
ing, separately and severally:

1. The affidavit or information which supports the com­
plaint in this cause, does not charge defendant with any 
offense under the Constitution and laws of the State of 
Alabama.

2. That the complaint, affidavit or information upon 
which this cause is based is insufficient to support prose- 
[fol. 4] cution of this cause, in that no offense is charged 
which is cognizable by this Honorable Court.



56

3. That the allegations of the complaint and each count 
thereof are so vague and indefinite as not to apprise this 
defendant of what he is called upon to defend.

4. That the ordinances, Section 1436 and Section 824 
of the 1944 General City Code of Birmingham, Alabama, 
as applied to this defendant, are invalid in that they vio­
late Section 4, Article 1, of the Constitution of Alabama, 
and the First and Fourteenth Amendments to the Consti­
tution of the United States of America.

5. That Section 1436 and Section 824 of the 1944 Gen­
eral City Code of Birmingham, Alabama, which support 
the complaint, affidavit or information in this cause, as 
applied to this defendant, a citizen of the State of Alabama 
and of the United States, constitute an abridgment of 
freedom of speech and assembly violative of rights and 
liberties secured the defendant by the First and Four­
teenth Amendments to the Constitution of the United States 
of America.

6. That the aforesaid ordinances as applied to defen­
dant, are unconstitutional on their face in that they are 
so vague as to constitute a deprivation of liberty without 
due process of law in violation of the provisions of the 
Fourteenth Amendment to the United States Constitution.

7. That the said Ordinances or Statutes in this case, as 
applied to defendant, constitute an abridgment of privileges 
and immunities guaranteed defendant as a citizen of the 
United States, in violation of the Fourteenth Amendment 
to the United States Constitution.

8. That the said Ordinances, as applied to defendant, 
constitute a denial of equal protection of the laws in 
violation of the Fourteenth Amendment to the Constitution 
of the United States of America.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, Jr., J. R. Pearson, Attorneys 
for Defendant.

[F ile  endorsem ent om itted]



57

[fol. 5]
In th e  C ir c u it  C ourt of t h e  T e n t h  J u d icial  C ircu it  

of A labama

No. 20778

C ity  of B ir m in g h a m , Plaintiff, 
versus

C h a rles  B il l u p s , Defendant.

Motion to E xclude t h e  E vidence— Piled October 11, 1960

1. The complaint charging defendant, a Negro, with 
violation of 824 of the General City Code of Birmingham 
of 1944, to-wit, aiding and abetting in the violation of 1436 
of the General City Code of Birmingham of 1944, to-wit, 
an alleged trespass upon land after being forbidden to 
enter or remain or after being told to leave is invalid in 
that the evidence establishes merely that persons alleged 
to have been aided and abetted by the defendant were 
peacefully upon the premises of various department stores, 
an establishment performing an economic function invested 
with the public interest, as a customer, visitor, business 
guest or invitee, and there is no basis for the charge 
recited by the complaint other than an effort to exclude 
those persons who were alleged to have been aided and 
abetted by the defendant from the various eating facilities 
because of their race or color; defendant, at the same time 
is being denied his right of freedom of speech and assembly 
in that he has been criminally prosecuted for an alleged 
peaceful discourse with other citizens of his race in re­
gards to achieving first class citizenship; thereby depriving 
him of liberty without due process of law and of the 
equal protection of the laws secured by the Fourteenth 
Amendment of the United States Constitution.

2. The evidence offered against defendant, a Negro, 
id support of the complaint charging him with violation 
of 824 of the General City Code of Birmingham was wholly



58

incompetent and hearsay evidence upon the grounds that 
the testimony offered by the City of Birmingham was based 
on hearsay and that the witness, Detective Pierce, was 
not recounting the fact personally known to him. Further 
that the testimony of the witness, Detective Pierce, was 
based upon the record of the proceedings in the Recorders 
Court and the instant proceedings being a trial de novo 
said records of the proceedings in the Recorders Court 
are only admissible for the purpose of impeachment. There 
being no testimony offered by the defendant, any admission 
of the records of proceedings in the Recorders Court in 
this proceeding constitutes a violation of the defendant’s 
constitutional rights under the Laws of the State of Ala- 
[fol. 6] bama and under the Laws and Constitution of the 
United States of America specifically those rights secured 
by the Fourteenth Amendment of the United States Con­
stitution.

3. That even if the evidence offered by the City of 
Birmingham was held to be legal it only establishes that 
the prosecution of the defendant was procured for the 
purpose of preventing him from engaging in peaceful 
assembly with others for the purpose of speaking, and; 
otherwise peacefully protesting in public places the refusal 
of the preponderant number of stores, facilities and ac­
commodations open to the public in Birmingham, Alabama, 
to permit the defendant, a Negro, and other members of 
defendant’s race from enjoying the access to such stores, 
facilities, and accommodations afforded members of other 
races; and that by this prosecution, prosecuting witnesses 
and arresting officers are attempting to employ the aid 
of the Court to enforce a racially discriminatory policy 
contrary to the due process and equal protection clauses 
of the Fourteenth Amendment to the Constitution of the 
United States.

4. The evidence against the defendant, a Negro, in sup­
port of the charge of his violation of 824 the General City 
Code of Birmingham of 1944, clearly indicates that those 
persons alleged to have acted as a result of the aiding 
and abetting of the defendant, had accepted an invitation



59

to enter and purchase articles in the various department 
stores in the City of Birmingham, stores open to the 
public, but had not been allowed to obtain food service on 
the same basis as that offered white persons, because of 
their race or color; and, that in furtherance of this racially 
discriminatory practice of the various department stores 
in the City of Birmingham, the defendant was arrested, 
thereby violating defendant’s rights under the equal pro­
tection and due process clauses of the Fourteenth Amend­
ment of the United States Constitution, to free speech and 
the right to peaceful assembly.

Oscar W. Adams, Jr., Orzell Billingsley, Jr., Peter 
A. Hall, Arthur D. Shores, J. Richard Reams, 
Attorneys for Defendant.

[File endorsement omitted]

[fol.7]
I n  the Circuit Court of the 

Tenth J udiciau Court of Alabama

Appealed from Recorder’s Court
(Aiding & Abetting)

Honorable Geo. Lewis Bailes, Judge Presiding 

City of Birmingham,
vs.

Charles Billups.

J udgment E ntry—October 11,1960
This the 11th day of October, 1960, came Wm. C. Walker, 

who prosecutes for the City of Birmingham, and also came 
the defendant in his own proper person and by attorney, 
and the City of Birmingham files written Complaint in 
this cause, and the defendant being duly arraigned upon 
said Complaint for his plea thereto says that he is not 
guilty; and defendant files motion to strike, and said motion 
^ing considered by the Court, it is ordered and adjudged 
b) the Court that said motion be and the same is hereby



60

overruled, to which action of the Court in overruling said 
motion the defendant hereby duly and legally excepts; 
and the defendant files demurrers, and said demurrers 
being considered by the Court, it is ordered and adjudged 
by the Court that said demurrers be and the same are 
hereby overruled, to which action of the Court in overrul­
ing said demurrers the Defendant hereby duly and legally 
excepts; and the defendant files motion to exclude the evi­
dence, and said motion being considered by the Court, 
it is ordered and adjudged by the Court that said motion 
be and the same is hereby overruled, to which action of the 
Court in overruling said motion, the defendant hereby 
duly and legally excepts; and the Court finds the defendant 
guilty as charged in the Complaint, and thereupon assessed 
a fine of Twenty-five ($25.00) dollars and costs against 
said defendant. It is therefore considered by the Court, 
and it is the judgment of the Court that said defendant is 
guilty as charged in said Complaint, and that he pay a fine 
of Twenty-five ($25.00) dollars and costs of this cause.

And said defendant being now in open Court, and having 
presently failed to pay the fine of $25.00 and the costs of 
$5.00 accrued in the Recorder’s Court of the City of Bir­
mingham, or to confess judgment with good and sufficient 
security for the same, it is therefore considered by the 
Court, and it is ordered and adjudged by the Court, and 
it is the sentence of the Law, that the defendant, the said 
Charles Billups, perform hard labor for the City of Bir­
mingham for fifteen days, because of his failure to pay 
said fine and costs of $5.00 accrued in said Recorder’s 
Court, or to confess judgment with good and sufficient secur­
ity therefor.

It is further considered by7 the Court, and it is ordered 
and adjudged by the Court, and it is the sentence of the 
Law, that the defendant, the said Charles Billups, per- 
[fol. 8] form additional hard labor for the City of Bir­
mingham for thirty days, as additional punishment in this 
cause.

And the costs legally taxable against the defendant in 
this cause amounting to forty-seven and 25/100 ($47.25) 
dollars, not being presently paid or secured, and $4.00 of 
said amount being State Trial Tax, $3.00, and Law Li-



61

brary Tax, $1.00, leaving forty-three and 25/100 ($43.25) 
dollars taxable for sentence, it is ordered by the Court that 
said defendant perform additional bard labor for the 
County for fifty-eight days, at the rate of 75  ̂ per day to 
pay said costs. It is further ordered by the Court that after 
the sentence for the City of Birmingham has expired, that 
the City authorities return the defendant to the County 
authorities to execute said sentence for costs.

It is further considered by the Court that the State of 
Alabama have and recover of the said defendant the costs 
in this behalf expended for feeding the defendant while in 
jail, for which let execution issue.

And defendant files motion for a new trial in this cause, 
and said motion coming on to be heard and determined by 
the Court, it is ordered by the Court, and it is the judg­
ment of the Court that said motion be and the same is 
hereby overruled.

And notice of appeal being given, and it appearing 
to the Court that, upon the trial of this cause, cer­
tain questions of Law were reserved by the defendant 
for the consideration of the Court of Appeals of Alabama, 
it is ordered by the Court that the execution of the sentence 
in this cause be and the same is hereby suspended until the 
decision of this cause by said Court of Appeals of Alabama.

It is further ordered by the Court that the Appeal Bond 
in this cause be and the same is hereby fixed at $300.00, 
conditioned as required by Law.

[fol. 9]
In  the Circuit Court of the 

Tenth J udicial Circuit of Alabama

No. 20778

City of B irmingham, a Municipal Corporation, Plaintiff,
vs.

Charles Billups, Defendant.

Motion for a New Trial—Filed October 11,1960
Mow comes the defendant, in the above styled cause, and 

Mth leave of the Court, first had and obtained, and moves



62

this Honorable Court to set aside the verdict and judgment 
rendered on to-wit, the 11th day of October, 1960, and that 
this Honorable Court will grant the defendant a new trial, 
and as grounds for said Motion sets out and assigns the 
following, separately and severally:

1. That the Judgment of the Court in said case is con­
trary to the law.

2. For that the judgment of the Court is contrary to the 
facts.

3. For that the judgment of the Court is contrary to the 
law in the case.

4. In that the judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

5. For that the Judgment of the Court is not sustained by 
the great preponderance of the evidence in the case.

6. For that the Judgment of the Court is so unfair, as 
to constitute a gross miscarriage of justice.

7. For that the sentence is excessive.
8. For that the Court erred in over-ruling objections, 

by the defendant to the introduction of evidence on behalf 
of the City of Birmingham, Alabama, in this case.

9. For the Court erred in overruling objections by the 
defendant to the introduction of evidence which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.

10. For the Court erred in overruling objections by the 
defendant to the introduction of evidence, which was so 
biased and prejudiced that the defendant was denied the 
right of a fair and impartial trial.
[fol. 10] 11. The Court erred in overruling defendant’s
demurrers filed in this cause.

12. The Court erred in overruling the defendant’s Mo­
tion to Strike the Complaint in this cause.

13. The Court erred in finding the defendant guilty of 
violating the laws or ordinances of the City of Birmingham,



63

Alabama, in that the laws or ordinances, under which this 
defendant was charged and convicted, and as applied to 
this defendant, constituted an abridgement of freedom of 
speech violative of rights and liberties secured to the de­
fendant by the First and Fourteenth Amendments to the 
Constitution of the United States of America.

14. That the Court erred in refusing to find that the 
ordinance under which this defendant was being tried, as 
applied to this defendant, constituted a denial of the equal 
protection of the laws, in violation of the Fourteenth 
Amendment to the Constitution of the United States of 
America.

15. That the Court erred in finding the defendant guilty 
of violating the laws or ordinances of the City of Birming­
ham, Alabama, in that the laws or ordinances under which 
this defendant was charged and convicted, and as applied 
to this defendant, constituted a deprivation of liberty, with­
out due process of law, in violation of the Constitution of 
the State of Alabama, and the provisions of the Fourteenth 
Amendment to the United States Constitution.

16. The Court erred in overruling defendant’s Motion 
to exclude the evidence in this case.

17. That it appeared from the evidence that no owner 
of the premises involved, had caused the arrest and prose­
cution of the defendant, but that such arrest was procured 
by the officials of the City of Birmingham, Alabama, without 
first having a complaint from such owner, or other person 
in charge of such premises.

18. For that it appears from the evidence that the de­
fendant was not prosecuted by the owner of private prop­
erty, as provided for by the pertinent laws or ordinances 
of the City of Birmingham, but by police officials.

19. For that it appears from the evidence affirmatively 
that no owner or other person in charge of the premises 
involved, or otherwise, having authority to do so, procured 
the arrest of the defendant or signed a complaint or swore 
out a warrant against defendant for trespass on private 
property.



64

[fol. 11] 20. For that it affirmatively appears that the
defendant was not requested to leave the premises of the 
store involved, but was only told to go elsewhere in said 
store.

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, J. Richmond Pearson, Oscar W. Adams, Jr., 
Attorneys for Defendant.

Order Overruling

The foregoing Motion being presented in open Court, 
this the 11th day of October, 1960; the same being con­
sidered and understood, the Court is of the opinion that 
the same should be overruled.

It is therefore, Ordered, Adjudged and Decreed that the 
said Motion is hereby overruled.

George Lewis Bailes, Circuit Judge.

[File endorsement omitted]

[fol. 12]
Counsel’s Note Re Record

Appeal Bond to Court of Appeals (omitted in printing).
(The parties hereby stipulate that the appeal bond in the 

Billups case is identical to that in the Shuttlesworth case, 
except for the names.)

[fol. 13]
Transcript of Evidence—October 11, 1960

[omitted in printing]

Counsel’s Note Re Record

(That the parties hereby stipulate that the transcript of 
the trial proceedings in the Billups case is identical to that 
in the Shuttlesworth case.)

[fol. 40] Reporter’s and Clerk’s Certificates to foregoing 
transcript (omitted in printing).



65

[fol. 42]
I n the Court of Appeals of Alabama

Charles Billups, Appellant, 
vs.

The City of Birmingham, Appellee.

Assignment of Errors

The Appellant says that there is manifest error in the 
foregoing Transcript of the record of the proceedings had 
and done in the Honorable Circuit Court of Jefferson 
County, Alabama, to the hurt and prejudice of this ap­
pellant, and for error assigns each of the following sepa­
rately and severally:

1. The Court erred in overruling Appellant’s Motion to 
Strike, filed in this cause. (Tr. 2, 3, 7 & 14)

2. The Court erred in overruling Appellant’s Demurrers 
filed in this cause. (Tr. 3, 4, 7 & 14)

3. The Court erred in overruling Appellant’s Motion to 
Exclude the Evidence, filed in this cause. (Tr. 5, 6, 7 & 33)

4. The Court erred in overruling Appellant’s Motion for 
a New Trial. (Tr. 9, 10, 11 & 39)

5. The Court erred in allowing Detective Charles L. 
Pierce, a Police Officer of the City of Birmingham, to testify 
as to his recollection of testimony given in the Recorder’s 
Court of the City of Birmingham, by witnesses in the trial 
of this matter in aforesaid Recorder’s Court. (Tr. 17-31)

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, Oscar W. Adams, J. Richmond Pearson, 
Attorneys for Appellant.

[fol. 43] Certificate of Service (omitted in printing).



[fol. 44]
I n the Court of Appeals of the State of Alabama

.............. J udicial Department

October Term, 1960-61 
6 Div. 795

66

Charles Billups, 
v.

City of Birmingham.

Appeal from Jefferson Circuit Court

November 2, 1960 
Certificate Filed

January 26, 1961 
Transcript Filed

April 18, 1961
Come the parties by attorneys, and argue and submit 

this cause for decision.

Order of Affirmance—May 30, 1961
Come the parties by attorneys, and the record and mat­

ters therein assigned for errors being submitted on briefs 
and duly examined and understood by the court, it is con­
sidered that in the record and proceedings of the Circuit 
Court there is no error. It is therefore considered that 
the judgment of the Circuit Court be in all things affirmed. 
It is also considered that the appellant pay the costs of 
appeal of this court and of the Circuit Court.



67

[fol.45]
In the Court op Appeals of the State of Alabama

.............. J udicial Department

October Term, 1960-61 
6 Div. 795

Charles Billups, 
v.

City of Birmingham.

Appeal from Jefferson Circuit Court 

Opinion—May 30, 1961
Pbice, Judge

This is a companion case to that of F. L. Shuttlesworth 
v. City of Birmingham, 6 Div. 802.

The facts set out in the Shuttlesworth case are adopted 
as the facts of this case, with this additional statement: 
“On March 30, 1960, Rev. Billups went to Daniel Payne 
College, in a car, where he picked up one James Albert 
[fol. 46] Davis, a student, and carried him to the home of 
Kev. F. L. Shuttlesworth, where several people had 
gathered, among them Rev. Shuttlesworth, his wife, and 
several other students from Daniel Payne College. Rev. 
Billups was also at said meeting.” Under this testimony 
the jury was fully justified in finding that this defendant 
was part and parcel of the entire scheme.

On the authority of Shuttlesworth v. City of Birmingham, 
supra, the judgment is due to be, and hereby is, affirmed.

Affirmed.



68

[fol. 47]
I n  the Court of Appeals of the State of A labam a

.............. J udicial Department

October Term, 1960-61 
6 Div. 795

Charles Billups,
y .

City of Birmingham.

Appeal from Jefferson Circuit Court

Application for Rehearing—June 14, 1961
Now comes appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant appel­
lant a rehearing in said cause, and to reverse, revise and 
hold for naught its Judgment rendered on, to-wit, the 30th 
day of May, 1961, and affirming the Judgment of the Cir­
cuit Court of Jefferson County, Alabama, and to enter an 
Order, reversing said Judgment.

Arthur D. Shores, Orzell Billingsley, Jr., Peter A. 
Hall, Oscar W. Adams, Jr., J. Richmond Pearson, 
Attorneys for Appellant.

Order Overruling—June 20, 1961
It is ordered that the application for rehearing be and 

the same is hereby overruled.
Per Curiam.



[fol. 47a] [File endorsement omitted]

In the Supreme Court of Alabama 
Sixth Division 

No. 763
Ex Parte: Charles Billups

69

Charles Billups, Appellant,
YS.

City of Birmingham, Appellee.

Petition for Certiorari
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar W. Adams, J. Richmond Pearson, At­
torneys for Appellant.

Proceedings on P etition for Certiorari 
July 5, 1961,—Submitted on Briefs 
Sept. 25,1961,—Writ denied No Opinion 
Oct. 4, 1961,—Application for Rehearing filed 
Xov. 16, 1961,—Application for Rehearing Overruled



[fol. 47b]
I n  t h e  S u p r e m e  C o u r t  o f  A l a b a m a  

S ix t h  D iv is io n  

No. 763
Ex P a r t e  : C h a r l e s  B il l u p s

70

C h a r l e s  B i l l u p s , Appellant,
vs.

C it y  of B ir m in g h a m , Appellee.

P e t it io n  f o r  C e r t io r a r i—Filed July 5, 1961 
[fol. 48]

To the Honorable Chief Justice and Associate Justice 
of the Supreme Court of Alabama

1. Comes the Appellant, by and through his Attorneys, 
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, Jr., 
Oscar W. Adams, Jr., and J. Richmond Pearson, and re­
spectfully petitions this Honorable Court to review, revise, 
reverse and hold for naught that certain judgment of the 
Court of Appeals, on to-wit: May 30, 1961, wherein Charles 
Billups was Appellant and the City of Birmingham was 
Appellee, which judgment affirms the Judgment of the Cir­
cuit Court of Jefferson County, Alabama.

2. Your petitioner avers that application to the Court of 
Appeals for a Rehearing of said cause and Brief in sup­
port thereof were duly filed by your petitioner within the 
time required by law, and that said application for re­
hearing was overruled by said Court of Appeals on the 
20th day of June, 1961.

3. Your petitioner respectfully shows unto the Court 
that this cause arose from a complaint filed by the City of 
Birmingham, charging your petitioner as follows:

“Comes the City of Birmingham, Alabama, a munici­
pal corporation, and complains that Charles Billups,



71

within twelve months before the beginning of this 
prosecution, and within the City of Birmingham or the 
police jurisdiction thereof, did incite or aid or abet 
in the violation of an ordinance of the city, to-wit, 
Section 1436 of the General City Code of Birmingham 
[fol. 49] of 1944, in that Charles Billups did incite or 
aid or abet another person to go or remain on the 
premises of another after being warned not to do so, 
contrary to and in violation of Section 824 of the 
General City Code of Birmingham of 1944.”

4. Your petitioner tiled a Motion to Quash the Complaint 
and Demurrers to the Complaint, on grounds that the Com­
plaint was so vague and indefinite as not to apprise the 
Appellant of what he was called upon to defend, and fur­
ther, that the ordinances which formed the basis of the 
prosecution, as applied to appellant, constituted an abridge­
ment of the privileges and immunities guaranteed by the 
Constitution of the United States and that the ordinances 
were unconstitutional on their face.

5. The Court overruled the Motion to Quash and the 
Demurrers whereupon petitioner was tried without a jury, 
and was found guilty as charged, and fined Twenty-five 
($25.00) Dollars and costs, and sentenced to a term of 
Thirty (30) days of hard labor for the City of Birmingham.

6. Your petitioner filed a Motion to Exclude the Evi­
dence, at the close of the City’s case, which Motion was 
denied. After judgment and sentences, petitioner filed a 
Motion for a New Trial, which Motion was denied, and 
petitioner perfected his appeal.

7. Your petitioner further shows unto Your Honors that 
the Court of Appeals erred in affirming and failing to 
reverse said cause, in the following ways, to-wit: The 
Court based its judgment in this cause upon the opinion 
judgment rendered in the case of James Albert Davis vs. 
City of Birmingham, Six Division—797, decided May 30, 
1961.



72

8. That the Propositions of Law involved, which peti­
tioner claims should be reviewed and revised by this Court, 
are as follows:

A. That the Ordinances and Complaint, the basis of the 
prosecution, are unconstitutional on their face, that they 
are so vague, indefinite and uncertain as to constitute a 
deprivation of liberty, without due process of law, in vio­
lation of the Fourteenth Amendment to the United States 
Constitution.

b. That the Ordinance and Complaint, the basis of the 
prosecution, as applied to petitioner, constitute an abridge­
ment of the privileges and immunities, and a denial of 
the equal protection of the laws, all in violation of the 
Fourteenth Amendment of the United States Constitution, 
[fol. 50] The Court of Appeals erred in failing to rule 
that the conviction of petitioner was a violation of due 
process of law, an abridgement of the privileges and im­
munities of the petitioner, in that the petitioner was denied 
equal protection of the law, all in violation of the Four­
teenth Amendment to the Constitution of the United States.

Wherefore, Your petitioner most respectfully prays that 
a Writ of Certiorari be issued out of and under the seal 
of this Court, directed to the Court of Appeals of Alabama, 
commanding and requiring said Court to certify and send 
to this Court, on a day certain to be designated by this 
Court, a full and complete transcript of record, and all 
proceedings by said Court of Appeals of Alabama, in the 
Cause numbered and entitled aforesaid, to the end that 
this cause may be reviewed and determined by this Honor­
able Court, and that this Court thereupon proceed to re­
view and correct the errors complained of and to reverse 
the Judgment of the Court of Appeals or render such 
Judgment as said Court should have rendered.

Petitioner prays that this Honorable Court suggest and 
require the Court of Appeals to Stay or recall its Certifi­
cate of Affirmance of said cause, during the pendency of 
this petition.

And petitioner prays for such other, further and addi­
tional relief in the premises as to this Court may seem



73

appropriate, and to which, he may he entitled, and your 
petitioner will ever pray.

Respectfuly submitted,
Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 

Jr., Oscar W. Adams, Jr., J. Richmond Pearson, 
by Orzell Billingsley, Jr., Attorneys for Appel­
lant.

[fol. 51] Duly sworn to by Orzell Billingsley, Jr., jurat 
omitted in printing.

Certificate of Service (omitted in printing).

[fol. 52]
I n  t h e  S u p r e m e  C o u r t  o f  A l a b a m a  

S ix t h  D iv is io n  

No. 763
Ex P a r t e : C h a r l e s  B il l u p s

C h a r l e s  B i l l u p s , Appellant, 
vs.

C it y  o f  B ir m in g h a m , Appellee.

A p p l ic a t io n  f o r  R e h e a r in g — Filed October 4, 1961
Now comes Appellant, in the above styled cause, and 

respectfully moves this Honorable Court to grant Appel­
lant a Rehearing in said cause, and reverse, revise and 
hold for naught its Judgment rendered on to-wit, the 21st 
day of September, 1961, denying appellant the W rit of 
Certiorari and dismissing the petition, and to enter an 
Order reinstating appellant’s petition, and directing that 
a Writ of Certiorari be issued out of and under the Seal 
of this Court, to the Court of Appeals of Alabama, to the 
end that this cause may be reviewed and determined by 
this Honorable Court.



74

Appellant further moves the Court to grant a Stay of 
Execution in this cause, during the pendency of this Ap­
plication for a Rehearing.

Submitted herewith is a Brief and Argument, in sup­
port of said Motion.

Arthur D. Shores, Peter A. Hall, Orzell Billingsley, 
Jr., Oscar W. Adams, J. Richmond Pearson, At­
torneys for Appellant, by Orzell Billingsley, Jr.

[fol. 53]
I n t h e  S u p r e m e  C o u r t  o f  A l a b a m a

The Court met pursuant to Adjournment
Present: All the Justices 

(Lawson’s Division Sitting)
6th Div. 763

Ex P a r t e  : C h a r l e s  B i l l u p s , Petitioner 
Petition for W rit of Certiorari to the Court of Appeals

Re : C h a r l e s  B i l l u p s ,

v.
C it y  o f  B i r m in g h a m .

Jefferson Circuit Court

O r d e r  O v e r r u l in g — November 16, 1961
It Is Hereby Ordered that the application for rehearing 

filed on October 4,1961, be and the same is hereby overruled.
Livingston, C. J., Lawson, Stakely and Merrill, JJ.> 

concur.

[fol. 54] Clerks’ Certificates to foregoing transcript 
(omitted in printing).



75

[fol. 56]
S u p r e m e  C o u r t  o f  t h e  U n it e d  S t a t e s  

No. 721, October Term, 1961

F. L. S h u t t l e s w o r t h , et al., Petitioners,
vs.

C it y  o f  B ir m in g h a m .

O r d er  A l l o w in g  C e r t io r a r i—June 25, 1962
The petition herein for a writ of certiorari to the Court 

of Appeals of the State of Alabama is granted, and the 
case is transferred to the summary calendar. The case 
is set for argument to follow No. 694.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall be treated as though filed in 
response to such writ.

Mr. Justice Frankfurter took no part in the considera­
tion or decision of this petition.









TRANSCRIPT OF RECORD

Supreme Court of the United States
OCTOBER TERM, 1962

No. 68

NATHANIEL WRIGHT, ET AL., PETITIONERS,

vs .

GEORGIA

ON WRIT OF CERTIORARI TO TH E SUPREM E COURT OF THE  
STATE OF GEORGIA

PETITION FOR CERTIO RA RI FIL E D  FEBRUARY 17, 1962 

CERTIO RA RI GRANTED JU N E 25 , 1962





SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1962

No. 68

NATHANIEL WRIGHT, ET AL., PETITIONERS,
v s .

G E O R G IA

ON WRIT OF CERTIORARI TO THE SUPREM E COURT OF THE  
STATE OF GEORGIA

I N D E X
Original Print

Proceedings in the Supreme Court of the State of
Georgia__________________________________  1 1

Bill of exceptions_____________________________ 1 1
Judge’s certificate to bill of exceptions__________ 9 7
Record from the City Court of Savannah, Georgia 15 8

Accusation and endorsements thereon_________ 15 8
Pleas of not guilty__________________________ 17 10
Verdict of the jury ___________ ;____________  18 10
Sentence as to Charlie L. Smart, Roscoe White,

James W. Thomas, Benjamin Carter and Jud-
son Ford ________________________________ 18 10

Sentence as to Nathaniel Wright _____________ 18 11
General demurrers and order overruling same .. 19 11
Rulings of the Court________________________ 22 14
Motion for acquittal and denial thereof ______  22 14
Motion of Nathaniel Wright for new trial, order

to show cause and denial of m otion_________ 26 17
Motion of Charles L. Smart for new trial, order

to show cause and denial of motion __   30 20
Motion of Roscoe White for new trial, order to 

show cause and denial of motion ___________ 34 24

Record Press, P rinters, New York, N. Y., A ugust, 1962



.



11 INDEX

O riginal P r in t
Record from the City Court of Savannah, Georgia 

—Continued
Motion of James W. Thomas for new trial, order

to show cause and denial of motion________  38 27
Motion of Benjamin Carter for new trial, order

to show cause and denial of motion________  42 31
Motion of Judson Ford for new trial, order to

show cause and denial of m otion__________  46 34
Brief of the evidence_______________________  50 38

Testimony of G. H. Thompson—
d ir e c t ------------------------ 50 38
c r o ss -------------------------  52 40
redirect _____________  53 42
r e cr o ss______________  53 42
r e d ir e c t_____________  54 42

Carl Hager—
d ir e c t_______________  54 42
c r o s s ________________  55 43
r e d ir e c t_____________  57 46
recross ______________  58 47

C. C. Dickerson—
direct _______________  59 48
cross -------------------------  59 48

G. W. Hillis—
direct ------------------------ 60 49
c r o ss-------------------------  61 50
r e d ir e c t--------------------- 61 50
recross ----------------------  61 50

Order of consolidation ___     63 51
Opinion, Quillian, J_____ _____________________  67 52
Judgment ----------------------------------------------------  75 58
Motion for rehearing_______    76 58
Order denying motion for rehearing ___________  80 60
Clerk’s certificate (omitted in printing) ...........   81 60
Order allowing certiorari ............    82 60
Charge of the court by Judge Alexander .............  83 61





1

[fol. 1]
IN THE SUPREME COURT OF GEORGIA

Georgia ) To the P resent T erm of the S upreme
Court of Georgia

I n E rror F rom the City 
Court of S avannah, 

Georgia.

In which the case is entitled. 
S tate of Georgia

— against—

N athaniel W right, 
Charles L. S mart, 

Rosco W hite,
J ames W. T homas, 

B enjamin Carter, and 
J udson F ord

B ill of E xceptions

Now Coines, Nathaniel Wright, Charles L. Smart, Rosco 
White, James W. Thomas, Benjamin Carter and Judson 
Ford, as Plaintiffs-in-error, and file this their Bill of Ex­
ceptions in which the State of Georgia is the Defendant- 
in-error.

Be It Remembered that, Plaintiffs-in-error were brought 
np for trial in the City of Savannah, Georgia, Honorable 
Columbus E. Alexander, Judge, Presiding, on the 18th 
day of May, 1961, said Plaintiffs-in-error being charged 
with violation of Section 26-5301 of the Code of Georgia.

Be It Further Remembered that, the trial of said case 
proceeded and a Jury was stricken. However, before ar­
raignment and before pleading to the accusation therein, 
Plaintiffs-in-error filed a General Demurrer to said ac­
cusation upon the grounds that the Statute upon which it 
was based, to-wit: Section 26-5301 of the Code of Georgia, 
was unconstitutional. The General Demurrer was over­
ruled by Honorable Columbus E. Alexander, Judge, presid-

Cha th a m  County )

Nathaniel W right, 
Charles L. S mart, 

Rosco W hite,
James W. T homas, 

Benjamin Carter and 
Judson F ord,

Plaintiffs-In-Error

—against—

State of Georgia 

Defendant-In-Error





2

ing. Evidence was then introduced by the State at the 
[fol. 2] close of which Counsel for the Defendants made 
a Motion to Acquit. After argument of Counsel in the 
absence of the Jury, the Motion to Acquit was overruled 
by Honorable Columbus E. Alexander, Judge, Presiding. 
The Jury was recalled and after argument of Counsel and 
the charge of the Court in said case, the Jury returned a 
verdict of guilty, whereupon The Honorable Columbus E. 
Alexander, Judge of said Court, sentenced each Defendant 
to pay a fine of $100.00 or serve five months under the 
jurisdiction of the State Board of Corrections, with the 
exception of Defendant, Nathaniel Wright who was sen­
tenced to pay a fine of $125.00 or serve six months under 
the jurisdiction of the State Board of Corrections.

Be It Further Remembered that, within the time pre­
scribed by Law, and on the 23rd day of May, 1961, Defen­
dants duly filed their Motions for New Trial, which case 
was regularly set down for hearing on the 23rd of June, 
1961. The Honorable Columbus E. Alexander, Judge’ 
presiding, continued the Hearing on said Motion until the 
21st day of July, 1961, at which time said Motion for New 
Trial and Brief of Evidence was submitted to the Court 
without argument of Counsel. Said Motions for New Trial 
were considered by the Court and on the 24th day of July, 
1961, the Honorable Columbus E. Alexander, Judge of 
said Court, entered an Order overruling said Motions for 
New Trial on each and every ground. On the 17th day of 
August, 1961, the Honorable Columbus E. Alexander, Judge 
of said Court, issued an Order permitting the cases of 
Plaintiffs-in-error to be consolidated as said cases were 
predicated upon identical circumstances and facts and in­
volved the same defensive pleas and the same questions 
of Law.

Plaintiffs-in-error make the following assignments of E r­
ror:

[fol. 3] 1. Plaintiffs-in-error in due time filed the fol­
lowing General Demurrer to the accusations:



.



____ __ “GENERAL DEMURRERS
NOW COMES the Defendants in the above named and 

stated case and before arraignment and before pleading to 
the accusation therein, and demur thereto, and for grounds 
of demurrer, say:

1. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, “ANY TWO OR MORE PERSONS WHO 
SHALL ASSEMBLE FOR THE PURPOSE OF DIS­
TURBING THE PUBLIC PEACE OR COMMITTING 
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE 
ON BEING COMMANDED TO DO SO BY A JUDGE, 
JUSTICE, SHERIFF, CONSTABLE, CORONER OR 
OTHER PEACE OFFICER, SHALL BE GUILTY OF 
A MISDEMEANOR”, is so vague that Defendants are 
not put on notice as to what criminal act they have al­
legedly committed, rendering it impossible to answer the 
charge or make a legal defense, thus denying to Defendants 
due process of Law secured to them by the Fourteenth 
Amendment to the United States Constitution.

2. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, is uncon­
stitutional in that said Statute is unconscionably vague 
in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing any 
unlawful act. The absence of definition of these terms in 
sufficient specificity denies due process of Law guaranteed 
[fol. 4] by the Fourteenth Amendment to the United States 
Constitution and the Constitution of the State of Georgia.

3. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, is uncon-





4

stitutional as applied to these Defendants to enforce racial 
discrimination with respect to municipally owned recrea­
tional facilities, in that any Statute so used is unconstitu­
tional as applied, because the Fourteenth Amendment to 
the United States Constitution requires that no State shall 
make any discrimination based on race with respect to 
governmental!}7 owned facilities.

4. These Defendants demur to said accusation upon the 
ground that the arrest of said Defendants under Section 
26-5301 of the Code of Georgia, as set out in “Paragraph 
1” above, was in fact pursuant to the policy, custom and 
usage of the State of Georgia, which compels segregation 
of races in municipally owned places of public recreation 
contrary to the equal protection and due process clauses 
of the Fourteenth Amendment to the United States Consti­
tution.

5. These Defendants demur to said accusation on the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, vests in 
said Judge, Justice, Sheriff, Constable, Coroner or any 
other peace officer, the untramelled and arbitrary authority 
to predetermine the commission or the intent to commit an 
offense under said Statute. Defendants under said Statute 
are not apprized of what acts or act they are forbidden to 
[fob 5] commit, said determination being left solely to the 
discretion of the said peace officer. Said Statute is there­
fore so vague, capricious, arbitrary and unreasonable as 
to violate the due process clause of the Fourteenth Amend­
ment to the United States Constitution.

These Defendants pray that each and all of the fore­
going grounds of demurrer be examined into by the Court 
and that said accusation be quashed upon each and all of 
said grounds.”

The Honorable Columbus E. Alexander, Judge, presiding, 
overruled said General Demurrers upon each and every 
ground, to which ruling Plaintiffs-in-error excepted, now 
except and assign the same as error upon the ground that 
it was contrary to Law.





5

2. At the close of the State’s evidence, PlaintifTs-in-error 
made the following Motion to Dismiss:

Motion
Mr. Gadsden: I would like to make a Motion for Ac­

quittal, Your Honor, based on this Georgia Statute, Sec­
tion 26-5301; a Statute which prohibits “Unlawful Assem­
bly” for the purpose of disturbing the public peace. The 
State has not established the fact that they assembled 
there for the purpose of disturbing the public peace or for 
committing any unlawful act; the only evidence in this 
case is that fhey were there for the purpose of playing 
basketball, the State’s own witness show that, and it is 
not within the purview of this Statute to have a conviction 
when it doesn’t meet all of the terms and elements of the 
Law. There is no evidence here before this Court and 
Jury that the Defendants went, there for the purpose of 
disturbing the public peace other than circumstantial evi­
dence, and our position is that when circumstantial evi- 
[fol. 6] dence is relied upon to convict a person it must 
have no other reasonable explanation than the one upon 
which the State is relying. Now if the State is basing its 
case upon the fact that these Defendants went there for 
the purpose of disturbing the public peace the only' evi­
dence it has to sustain that is the fact that they had on 
ordinary clothing, and as far as I can determine from the 
evidence here today that is all they have to show an at­
tempt to disturb the public peace, and there is no other 
offense involved whatsoever. The only evidence before 
this Court today is that these Defendants went there to 
play basketball and that they played basketball until 
stopped by' the police officers, and that is the reason why 
we are asking this Court to direct a verdict for acquittal 
in this case; the State lias failed to carry' the burden in 
that respect.

It is a question of “Intent” and, certainly, there is no 
evidence as to their intent. All of the evidence they have 
is circumstantial, and I think that the Law is settled on 
the fact that where there is circumstantial evidence, and 
when there are two different conclusions, this, certainly, 
cannot be used to sustain a conviction and, therefore, we



'



6

respectfully ask this Court to direct a verdict of acquittal 
in this case.

Judge: Motion for directed verdict overruled.
The Honorable Columbus E. Alexander, Judge, presiding, 

overruled said Motion to Dismiss, to which ruling Plain- 
tiffs-in-error excepted, now except and assign the same as 
error upon the ground that it was contrary to Law, and 
that the same should have been granted because the evi­
dence revealed that no crime had been committed by the 
Plaintiffs-in-error.

3. Plaintiffs-in-error, as hereinabove set out, filed Mo­
tions of New Trial on the 23rd day of May, 1961, and on the 
[fob 7] 24th day of July, 1961, the Honorable Columbus E. 
Alexander, Judge of said Court, overruled said Motions on 
each and every ground, therein stated, to which ruling 
Plaintiffs-in-error excepted, now except and assign the same 
as error upon the ground that it was contrary to Law.

4. The Honorable Columbus E. Alexander, Judge, pre­
siding, at the trial of said case, sentenced each Defendant 
to pay a fine of $100.00 or serve five months under the 
jurisdiction of the State Board of Corrections with the 
exception of Defendant, Nathaniel Wright who was sen­
tenced to pay a fine of $125.00 or serve six months under 
the jurisdiction of the State Board of Corrections, to which 
judgment Plaintiffs-in-error excepted, now except and as­
sign the same as error upon the ground that it was con­
trary to Law.

Plaintiffs-in-error specify, as being material to a clear 
understanding of the errors complained of, the following 
portions of the record:

1. Accusation Number 21074 together with all entries 
thereon together with the pleas of Not Guilty.

2. The verdict of the Jury together with the judgment 
and sentence of the Court signed by the Honorable Colum­
bus E. Alexander, Judge, then presiding, dated May 23, 
1961.

3. General Demurrers filed by Plaintiffs-in-error before 
arraignment and before pleading to the accusations, to­
gether with the rulings of the Court thereon.



'

■



8

Chatham County, Georgia, is hereby directed to make out 
a complete copy of such portions of the record as are 
in this Bill of Exceptions specified, and certify them as 
such, and cause them to be transmitted to the Present Term 
of the Supreme Court of Georgia, in order that the errors 
alleged to have been committed may be considered and 
corrected.

This 18th day of August, 1961.
/ s /  Columbus E. A lexander, Judge, City Court of 

Savannah, Chatham County, Georgia.

[fol. 15]
I n the City Court of S avannah, Georgia

A ccusation and E ndorsements T hereon

State of Georgia )
County of Chatham )
City of Savannah )

And now on this 28th day of April in the year of our 
Lord one thousand nine hundred and sixty-one comes An­
drew J. Ryan, Jr., Solicitor General of the Eastern Judicial 
Circuit of Georgia, who prosecutes for the State of Georgia, 
in the City Court of Savannah, and by accusation made 
on oath, and in accordance with the statutes in such cases 
made and provided, in the name and behalf of the Citizens 
of Georgia, charges and accuses Benjamin Carter, James 
W. Thomas, (Gnvon -M. King), Roscoe White, Charlie L. 
Smart and Judson Ford and Nathaniel Wright of the 
County of Chatham and State aforesaid with the offense of 
a misdemeanor: for that the said Defendants in the County 
of Chatham and State of Georgia aforesaid, on the 23rd 
day of January in the year of our Lord one thousand nine 
hundred and sixty-one. In that the said Defendants did as­
semble at Daffin Park for the purpose of disturbing the pub­
lic peace and refused to disburse (sic) on being commanded 
to do so by Sheriff, Constable, and Peace Officer, to wit: 
W. H. Thompson and G. W. Hillis, contrary to the laws of 
said State, the good order, peace and dignity thereof.

/s /  A ndrew J. R yan, J r., Solicitor General of the
Eastern Judicial Circuit of Georgia.







4. The Motion to Dismiss submitted at tb 
State’s evidence and the ruling of Court th 
out in Rulings of the Court approved by Hoc- 
bus E. Alexander, Judge, then presiding.

5. Motions for New Trial filed by P]ajr 
[fol. 8] Order continuing said Motion, dated 
the 21st day of June, 1961. An order overruB 
tions for New Trial, dated and filed on the 
July, 1961, and signed by Honorable Colunik 
der, Judge of the City Court of Savannah, Gtg

6. The Brief of Evidence and Approval <1 
of Evidence by Honorable Columbus E. Alea 
then presiding, filed on the 24th day of July,

7. Order permitting consolidation of said! 
by Honorable Columbus E. Alexander, Juds 
dated and filed on the 17th day of August, IS

And Now Comes the Plaintiffs-in-error, irii 
provided by Law and, assigning error on al 
complained of as being contrary to Law, tens; 
Bill of Exceptions and pray that the same h 
true and transmitted to the Supreme Court: 
of Georgia, in order that the alleged errors k 
and corrected, all as provided by Law.

The Supreme Court of Georgia, and nor: 
Appeals, has jurisdiction of this Bill of Except 
reason that the same involves the constitute 
statute of the State of Georgia.

Plaintiffs-in-error most respectfully submit' 
Exceptions.

/ s /  E. H. Gadsden, B. Clarence Matfuu 
for Plaintiflfs-In-Error, 458^ West B 
Savannah, Georgia. 1

[fol. 9]
J udge’s Certificate to B ill of mchbj

I do certify that the foregoing Bill of Except 
and contains all of the evidence and spcci« 
record material to clear understanding oi >• 
plained of, and The Clerk of the City Couri o*



9

[fol. 16]
No. 21,074

I n the City Court of S avannah 

T erm— May, 1961.
Violation of Georgia L aws 26-5301 Code of 1933 

a Misdemeanor

S tate

vs
N athaniel W right 
Charlie L. S mart 
(Ga-von M. King)
J ames W . T homas 
B enjam in  Carter 

J udson F ord 
R oscoe W hite

ACCUSATION FOUND 
This 28th day of April, 1961.

Filed in office this 28th day of April, 1961. 
J esse W. Moore

Dept. Clerk City Court of Savannah
By A ndrew J. R yan, J r.

Solicitor General E. J. C. of Ga.
G. W. H illis 
Prosecutor

Witnesses for the State
G. W. H illis 

W. H. T hompson 
C. C. D ickerson 

Carl H ager





V

[fol. 17]
I n the City Court of S avannah

P leas of N ot Guilty— May 18,1961
And now on this IStli day of May, 1961, in Open Court 

comes the said Nathaniel Wright, Charlie L. Smart, Roscoe 
White, James W. Thomas, Benjamin Carter, Judson Ford, 
and waives indictment or presentment by a Grand Jury, 
and arraignment and trial by a Petit Jury, and for plea 
in this their behalf says they are Not Guilty, and puts 
themselves upon the Court.

B. Clarence Mayfield, E. H. Gadsden, Attorneys for 
Defendants.

The State says he is guilty and will so prove.
Andrew J. Ryan, Jr., Solicitor General E. J. C. of 

Georgia.

10

[fol. 18]
I n  the City Court of S avannah

V erdict of the J ury— May 18,1961 
May 18,1961.

We, the Jury, find the Defendants guilty.
L. L. Black, Foreman.

I n  the City Court of S avannah

Sentence of the Court as to Charlie L. S mart, R oscoe 
V hite, J ames W . T homas, B enjamin Carter, J udson 
Ford—May 18,1961 I

I find the defendants guilty, whereupon, it is considered, 
ordered and adjudged that the said defendants do pay a 
fine of $100.00 Each, but if the said defendants fail to pay 
the said fine, it is ordered that in lieu thereof they serve





11

Five Months Each under the jurisdiction of the State 
Board of Corrections.

This May 18th, 1961.
/s/ Columbus E. A lexander, Judge, City Court of 

Savannah.

I n the City Court of S avannah

Sentence of the Court as to N athaniel W right 
—May 18,1961

I find the defendant Nathaniel Wright, guilty, where­
upon, it is considered, ordered and adjudged that the said 
defendant do pay a fine of $123.00, but if the said defendant 
fails to pay the said fine, it is ordered that in lieu thereof 
he serve Six Months, under the jurisdiction of the State 
Board of Corrections.

This May 18th, 1961.
/s/ Columbus E. A lexander, Judge, City Court of 

Sa\annah.

[fol. 19]
I n the City Court of S avannah 

[Title omitted]

General D emurrers and Order Overruling S ame 
—May 18,1961

Now Comes the Defendants in the above named and 
stated case and before arraignment and before pleading 
to the accusation therein, and demur thereto, and for 
grounds of demurrer, say:

b These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is 
based and under which Defendants, all being Negroes, 
were arrested and charged, to-wit: Section 26-5301 of the 
Code of Georgia, “ANY TWO OR MORE PERSONS 
»H0 SHALL ASSEMBLE FOR THE PURPOSE OF





12

DISTURBING THE PUBLIC PEACE OR COMMITTING 
ANY UNLAWFUL ACT, AND SHALL NOT DISPERSE 
ON BEING COMMANDED TO DO SO BY A JUDGE, 
JUSTICE, SHERIFF, CONSTABLE, CORONER, OR 
OTHER PEACE OFFICERS, SHALL BE GUILTY OF 
A MISDEMEANOR”, is so vague that Defendants are not 
put on notice as to what criminal act they have allegedly 
committed, rendering it impossible to answer the charge 
or make a legal defense, thus denying to Defendants due 
process of law secured to them by the Fourteenth Amend­
ment to the United States Constitution.

2. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is 
based and under which Defendants, all being negroes, were 
arrested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, is uncon­
stitutional in that said Statute is unconscionably vague in 
that nowhere in said Statute does there appear a definition 
of disturbing the public peace or committing any unlawful 
[fol. 20] act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

3. These Defendants demur to said accusation upon the 
ground that the Statute upon which said accusation is based 
and under which Defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, is uncon­
stitutional as applied to these Defendants to enforce racial 
discrimination with respect to municipally owned recrea­
tional facilities, in that any Statute so used is unconstitu­
tional as applied, because the Fourteenth Amendment to 
the United States Constitution requires that no State shall 
make any discrimination based on race with respect to 
governmentally owned facilities.

4. These Defendants demur to said accusation upon the 
ground that the arrest of said Defendants under Section 
26-5301 of the Code of Georgia, as set out in “Paragraph 
1” above, was in fact pursuant to the policy, custom and 
usage of the State of Georgia, which compels segregation



■



13

of races in municipally owned places of public recreation 
contrary to the equal protection and due process clauses 
of the Fourteenth Amendment to the United States Con­
stitution.

5. These Defendants demur to said accusation on the 
ground that the Statute upon which said accusation is based 
and under which defendants, all being Negroes, were ar­
rested and charged, to-wit: Section 26-5301 of the Code 
of Georgia, as set out in “Paragraph 1” above, vests in said 
Judge, Justice, Sheriff, Constable, Coroner, or other peace 
officers, the untramelled and arbitrary authority to pre­
determine the commission or the intent to commit an of­
fense under said Statute. Defendants under said Statute 
is not apprized of what acts or act they are forbidden to 
commit, said determination being left solely to the dis­
cretion of the said peace officers. Said Statute is there­
fore so vague, capricious, arbitrary and unreasonable as 
to violate the due process clause of the Fourteenth Amend­
ed. 21] ment to the United States Constitution.

These Defendants pray that each and all of the foregoing 
grounds of demurrer be examined into by the Court and 
that said accusation be quashed upon each and all of said 
grounds.

.......................................... , Attorney for Defendants.
General Demurrer filed in Clerk’s Office this May 18, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

ORDER OVERRULING DEMURRERS 
May 18, 1961.

The within demurrer is overruled on each and every 
ground.

/s/ Columbus E. A lexander, Judge, City Court of 
Savannah.



.



14

[fol. 22]
In the City Court of S avannah 

R ulings of the Court

See Brief of Evidence, Page 6—beginning of cross ex­
amination of Mr. Hager by Mr. Mayfield.

Mr. Garfunkel: I object to that, Your Honor, there has 
been no evidence that there Avas a request for an arrest. 
There was a report made that there were negroes playing 
there, but nobody requested the police to make an arrest, 
the police just went down there and made an arrest after­
wards.

Judge: I think that is the case.
Mr. Mayfield: I would like to show to the Court and 

Jury that the policy, pursuant to Mr. Hager’s examination 
here, was that they would have been permitted to remain 
there had the police officers not arrested them.

Judge: Ask questions following the evidence in the case.

I n the City Court of S avannah

Motion for A cquittal and D enial T hereof

Mr. Gadsden: I would like to make a Motion for ac­
quittal, Your Honor, based on this Georgia Statute Section 
26-5301; a Statute which prohibits “Unlawful Assembly” 
for the purpose of disturbing the public peace. The State 
has not established the fact that they assembled there for 
the purpose of disturbing the public peace or for com­
mitting any unlawful act; the only evidence in this case 
is that they were there for the purpose of playing basket­
ball, the State’s own witnesses show that, and it is not 
within the preview (sic) of this Statute to have a conviction 
when it doesn’t meet all of the terms and elements of the 
law. There is no evidence here before this Court and Jury 
that the defendants went there for the purpose of disturb­
ing the public peace other than circumstantial evidence, 
and our position is that when circumstantial evidence is 
relied upon to convict a person it must have no other 
reasonable explanation than the one upon which the State 
is relying. Now if the State is basing its case upon the





15

fact that those defendants went there for the purpose of 
disturbing tire public peace the only evidence it had to 
sustain that is the fact that they had on ordinary clothes, 
and the State’s own witnesses have testified to the fact that 
they know that people play basketball in their ordinary 
[fol. 23] clothing, and as far as I can determine from the 
evidence here today that is all they have to show an at­
tempt to disturb the public peace, and there is no other 
offense involved whatsoever. The only evidence before this 
Court today is that these defendants went there to play 
basketball and that they played basketball until stopped 
by the police officers, and that is the reason why we are 
asking this Court to direct a verdict for acquittal in this 
case; the State has failed to carry the burden in that re­
spect.

It is a question of ‘intent’ and, certainly, there is no 
evidence as to their intent. All of the evidence they have 
is circumstantial and I think that the law is settled on the 
fact that where there is circumstantial evidence, and when 
there are two different conclusions, this, certainly, cannot 
be used to sustain a conviction and, therefore, we respect­
fully ask this Court to direct a verdict of acquittal in this 
case.

Mr. Garfunkel: ^ our Honor, Mr. Hager gave a very 
good outline ot way the playgrounds are being operated in 
Savannah, and he stated that in general the playgrounds 
were for those up to 16 years in age, however, that they 
had no objection to those over 16 years in age playing 
when the others are not scheduled to play on the play­
grounds, he said that was because they didn’t want to mix 
them and he explained why he didn’t want to mix them, 
or why they didn’t want to mix them.

He further explained, Your Honor, that at that partic­
ular time of day is when the schools do use the playgrounds, 
and particularly this playground, with which he happens 
to be very familiar because it is only a block away from his 
office, in fact, part of it surrounds his office—that there 
are two parochial schools within walking distance of this 
playground, and that further away is another school, which 
sends buses all during the day to bring students to play 
on this playground, and that they don’t allow grown people





16

on the playgrounds during those periods—grown people, 
regardless of their color, they don’t want on the play­
grounds during that time. Of course, at this particular 
[fol. 24] moment the children were not there, but mo­
mentarily the children would come, they were going to 
come definitely, and a lot of them come after school, but 
all during school hours, Mr. Hager said that the children 
come all during school hours and are supervised by the 
teachers from the school.

Now, Your Honor, these defendants were there at a place 
and at the time where and when grownups should not have 
been on the playground. They are adopting the viewpoint 
that they went there solely for the purpose of playing 
basketball. The reason they went out there was to create 
a disturbance, and they say that ‘the reason you are ar­
resting us is not because of this, but because we are 
colored’.

They went out there not dressed to play basketball, they 
didn’t know the rules of the playground, and that is the 
reason why we introduced that evidence, we introduced 
that evidence to show ‘intent’ to create a disturbance of 
the peace. The police certainly shouldn’t have to wait until 
a disturbance is actually created and gets beyond control 
before they tell them that they will have to leave, and, 
certainly, to nip it in the bud before any difficulty or real 
trouble starts, that was the purpose of the Statute.

It is not the fact that they went out there and disturbed 
the peace by going out there, but it is the fact that ihey 
went out there for the sole purpose of disturbing the peace, 
and I think that all of the evidence shows that that is 
what this purpose was. That the police stepped in and 
told them to leave, but they continued to stay there after 
they told them to leave and continued to play, they con­
tinued to remain on the playground the police promptly 
arrested them.

Judge: Motion for directed verdict overruled.





17

[fol. 26]
I n the City Court of S avannah

S tate of Georgia

vs.
N athaniel W right

Motion for N ew T rial, Order to S how Cause and 
D enial of Motion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th day of May 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing any 
unlawful act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed



'

■



18

by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untramelled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to 
commit, said determination being left solely to the discre- 
[fol. 27] tion of the said Peace Officer. Said Statute is 
therefore so vague, capricious, arbitrary and unreasonable 
as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

Whereupon he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Read and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, and 
upon the defendant giving a good and sufficient bond in the 
amount of $80.00.

If for any reason said motion is not heard and deter­
mined at the time and place above fixed, it is ordered that 
the same shall be heard and determined at such time and 
place in vacation as counsel may agree upon and upon 
failure to agree, then at such time and place as the presid­
ing judge may fix on the application of either party, of 
which time and place and opposite party shall have at 
least five days’ notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.



.



19

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation, and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.
[fol. 28] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.

This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

Georgia )
Chatham County )

S tate of Georgia

vs.
N athaniel W right

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy7 received.

This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the East­

ern Judicial District of the State of Georgia.

Motion for New Trial, filed in office this 23rd day of 
May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.





20

[fol. 29]
Order Continuing Hearing

The within Motion for New Trial is hereby continued to 
July 21st, 1961 at 3:00 P.M. All rights of movant are 
hereby reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon 
each and all of the grounds thereof.
In Open Court, this July 24th, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 30]
I n  the City Court of S avannah

S tate of Georgia

vs.
Charles L. S mart

Motion for N ew Trial, Order to S how Cause and 
D enial of Motion

Verdict and Judgment for the State at May Term, 1961, 
of City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1st. Because the verdict is contrary to evidence and 
without evidence to support it.



‘.baa**?



21

2nd. Because the vertSct is decidedly and strongly against 
the weight of evidence.

3rd. Because the verdict is contrary to law and the 
principles of justice and equity.

4th. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice 
as to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5th. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere En. said Statute does there appear 
a definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
in sufficient specificity denies the process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6th. Because the Statute upon which verdict is based 
vest said Judge, Justice, Sheriff, Constable, Coroner or 
other peace officers the untrammeled and arbitrary author­
ity to predetermine the commission of the intent to commit 
an offense under said Statute. Defendants under said Stat­
ute is not apprized of what act or acts they are forbidden 
to commit, said termination being left solely to the dis- 
[fol. 31] cretion of the said Peace Officer. Said Statute 
is therefore so vague, capricious, arbitrary and unreason­
able as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

thereupon, he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. II. Gadsden, Attorney's for 
Movant.

Read and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day' 
of June, 1961, why the foregoing motion should not be 
granted.





22

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.
If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon a failure 
to agree, then at such time and place as the presiding 
judge may fix on the application of either party, of which 
time and place the opposite party shall have at least five 
days’ notice.
If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.
It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing on the motion shall 
be in vacation, and the brief of the evidence has not been 
filed in the clerk’s office at any time within ten days after 
motion is heard and determined.
[fob 32] It appearing that it is impossible to make out and 
complete a brief of the testimony on said case before ad­
journment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.
This 23rd day of May, 1961.

/s /  Columbus E. A lexander, Judge City Court of 
Savannah.





23

Acknowledgment of Service

) State of Georgia )
County of Chatham )

S tate of Georgia 

vs.
Charles L. S mart

Due and Legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received. This 
22nd day of May, 1961.

/&/ Andrew J. Ryan, Jr., Solicitor General for the 
Eastern Judicial District of the State of Georgia.

Motion for New Trial as to Charles L. Smart filed in 
Clerk’s Office this May 23, 1961.

Jeff F. Dickey, Clerk City Court of Savannah.

[fol.33]
Order Continuing Hearing on Motion for New Trial
The within Motion for New Trial is hereby continued to 

July 21,1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.

In Open Court this June 23, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

Order of Court Overruling Motion for New Trial
The within Motion for New Trial is hereby overruled 

upon each and all of the grounds thereof.
In Open Court this July 24, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.





24

[fol.34]
I n the City Court of S avannah

S tate of Georgia

vs.
R oscoe W hite

Motion for New T rial, Order to S how Cause and 
D enial of Motion

Verdict and Judgment for the State at May Term, 19(31, of 
City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said ease, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds, towit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the princi­
ples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

o. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear 
a definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
m sufficient specificity denies due process of law guaran-



■



25

teed by the Fourteenth Amendment to the United States 
Constitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers and untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what acts or act they are forbidden to 
commit, said determination being left solely to the dis­
cretion of the said Peace Officer. Said Statute is therefore 
[fol. 35] so vague, capricious, arbitrary and unreasonable 
as to violate the due process clause of the Fourteenth 
Amendment to the Constitution of the United States.

Whereupon, he prays that these, his grounds for a new 
trial, be inquired of by the court, and that a new trial be 
granted him.

B. Clarence Mayfield, E. H. Gadsen, Attorneys for 
Movant.

Bead and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day 
of June, 1961, why the foregoing motion should not be 
granted.
It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $S0.00.
If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days’ 
notice.
If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then





26

the same shall stand on the docket until heard and deter­
mined at said term or thereafter.
It is further ordered that movant have, until hearing, when­
ever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation, and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.
It appearing that it is impossible to make out and complete 
a brief of the testimony on said case before adjournment of 
court; it is ordered by the court that said motion be heard 
and determined in vacation and that movant may amend 
said motion at any time before the final hearing.
[fol. 36] This 23rd day of May, 1961.

/s / Columbus E. Alexander, Judge City Court of 
Savannah.

Acknowledgment of Service
State of Georgia )
County of Chatham )

S tate of Georgia 

vs.
R oscoe W hite

Due and legal service of the within and foregoing motion 
or new trial is hereby acknowledged, copy received. This 

«  day of May, 1961.

/ s / A ndrew J. R yan, J r., Solicitor General for the 
Eastern Judicial District of the State of Georgia.

nml0t!?n o°or ne'V trial as to Roscoe White filed in Clerk’s Office this 23rd day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah



■



27

[fol. 37]
Order Continuing Hearing

The within Motion for New Trial is hereby continued to 
July 21,1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of Sa­
vannah.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled upon 
each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.

Columbus E. Alexander, Judge, City Court of Sa­
vannah.

[fol. 38]
I n the City Court of S avannah

S tate of Georgia

vs.
J ames W . T homas

Motion for N ew T rial, Order to S how Cause and 
D enial of Motion

Verdict and Judgment for the State at May Term, 1961, 
of City Court on 18th day of May, 1961.

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds, towit:

1st. Because the verdict is contrary to evidence and 
without evidence to support it.





28

2nd. Because the verdict is decidedly and strongly 
against the weight of evidence.

3rd. Because the verdict is contrary to law and the 
principles of justice and equity.

4th. Because the Statute upon which said verdict is 
based is so vague that the defendants were not put on 
notice as to what criminal act they had allegedly committed, 
thus denying to defendants due process of law secured to 
them by the First and Fourteenth Amendments to the 
United States Constitution.

5th. Because the Statute upon which said verdict is 
based is unconstitutional in that said Statute is uncon­
scionably vague in that nowhere in said Statute does there 
appear a definition of disturbing the public peace or com­
mitting any unlawful act. The absence of definition of 
these terms in sufficient specificity denies due process of 
law guaranteed by the Fourteenth Amendment to the 
United States Constitution and the Constitution of the 
State of Georgia.

6th. Because the Statute upon which verdict is based 
vest said Judge, Justice, Sheriff, Constable, Coroner or 
other peace officers the untrammeled and arbitrary authority 
to predetermine the commission of the intent to commit 
an offense under said Statute. Defendants under said 
Statute is not apprized of what act or acts they are for­
bidden to commit, said determination being left solely to 
the discretion of the said Peace Officer. Said Statute is 
[fol. 39] therefore so vague, capricious, arbitrary and un­
reasonable as to violate the due process clause of the 
Fourteenth Amendment to the Constitution of the United 
States.

Whereupon, lie prays that these, his grounds for a new 
♦nal, be inquired of by the Court, and that a new trial be 
granted him.

/ s /  B. Clarence Mayfield, E. H. Gadsden, Attor­
neys for Movant.





29

Read and Considered. It is ordered that the State of 
Georgia show cause before me, at 3 o’clock on the 23rd day 
of June, 1961, why the foregoing motion should not be 
granted.
It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as a supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.
If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure to 
agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days’ 
notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and deter­
mined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing of the motion shall 
be in vacation, and the brief of evidence has not been filed 
in the Clerk’s office at any time within ten days after motion 
is heard and determined.
[fol. 40] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 

| motlon be heard and determined in vacation and that 
movant may amend said motion at any time before the 
final hearing.

This 23rd day of May, 1961.

/ s /  Columbus E. A lexander, Judge, C.C.S.





30

State of Georgia ) 
County of Chatham )

S tate of Georgia

vs.
J ames W. T homas

Due and legal service of the within and foregoing motion 
for New Trial is hereby acknowledged, copy received.

This 22nd day of May, 1961.
/s /  Andrew J. Kyan, Jr., Solicitor General for the 

Eastern Judicial District of the State of Georgia.

Chatham County Courthouse 
Room 310
Savannah, Georgia

Motion for a New Trial as to James \Y. Thomas, filed 
in Clerk’s office this 23rd day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 41]
Order Continuing Hearings

The within Motion for New Trial is hereby continued to 
July 21,1961, at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, C.C.S.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this 24th day of July, 1961.

Columbus E. Alexander, Judge, City Court Savan­
nah.



■



31

[ f o l .4 2 ]
In the City Court of S avannah

S tate of Georgia

vs.

B enjamin Carter

Motion for N ew T rial, Order to S how Cause 
and D enial of Motion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th Jay of May, 1961.

The Defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of lav/ secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

|  5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
'ague in that nowhere in said statute does there appear a
ennition of disturbing the public peace or committing any 

un awful act. The absence of definition of these terms in 
sufficient specificity denies due process of law guaranteed





32

by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to 
commit, said determination being left solely to the discre­
tion of the said Peace Officer. Said Statute is therefore 
so vague, capricious, arbitrary and unreasonable as to vio­
late the due process clause of the Fourteenth Amendment 
to the Constitution of the United States.
[fol. 43] 'Whereupon he prays that these, his grounds for 
a new trial, be inquired of by the court, and that a new 
trial he granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Read and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, and 
upon the defendant giving a good and sufficient bond in 
the amount of $80.00.

If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall be heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding judge 
may fix on the application of either party, of which time 
and place the opposite party shall have at least five days 
notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then



.



33

the same shall stand on the docket until heard and de­
termined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval 
a brief of the evidence in said case, and the presiding 
judge may enter his approval thereon at any time, either 
in term or vacation, and if the hearing of the motion shall 
be in vacation, and the brief of evidence has not been filed 
in the clerk’s office at any time within ten days after motion 
is heard and determined.
[fol.44] It appearing that it is impossible to make out 
and complete a brief of the testimony on said case before 
adjournment of court; it is ordered by the court that said 
motion be heard and determined in vacation and that mov­
ant may amend said motion at any time before the final 
hearing.

This 23rd day of May, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

State of Georgia ) 
County of Chatham )

S tate of Georgia 

vs.
B enjam in  Carter

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received.

This 22nd day of May, 1961.
Andrew J. Ryan, Jr., Solicitor General for the 

Eastern Judicial District of the State of Georgia.





34

Chatham County Courthouse 
Room 301
Savannah, Georgia

Motion for New Trial, filed in Office this 23rd day of 
May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 45]
Order Continuing Hearing

The within Motion for New Trial is hereby continued to 
July 21, 1961 at 3 :00 P.M. All rights of movant are hereby 
reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this 24tli day of July, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 46]
l x  the City Court of S avannah

1

S tate of Georgia

vs.
J udson F ord

Motion for N ew T rial, Order to S how Cause 
and D enial of Motion

Verdict and judgment for the State at May term, 1961 
of City Court on 18th day of May, 1961.





35

The defendant being dissatisfied with the verdict and 
judgment in said case, comes during said term of Court, 
before the adjournment thereof, and within 10 days from 
said trial, and moves the court for a new trial upon the 
following grounds to wit:

1. Because the verdict is contrary to evidence and with­
out evidence to support it.

2. Because the verdict is decidedly and strongly against 
the weight of evidence.

3. Because the verdict is contrary to law and the prin­
ciples of justice and equity.

4. Because the Statute upon which said verdict is based 
is so vague that the defendants were not put on notice as 
to what criminal act they had allegedly committed, thus 
denying to defendants due process of law secured to them 
by the First and Fourteenth Amendments to the United 
States Constitution.

5. Because the Statute upon which said verdict is based 
is unconstitutional in that said Statute is unconscionably 
vague in that nowhere in said Statute does there appear a 
definition of disturbing the public peace or committing 
any unlawful act. The absence of definition of these terms 
in sufficient specificity denies due process of law guaranteed 
by the Fourteenth Amendment to the United States Con­
stitution and the Constitution of the State of Georgia.

6. Because the Statute upon which verdict is based vest 
said Judge, Justice, Sheriff, Constable, Coroner or other 
peace officers the untrammeled and arbitrary authority to 
predetermine the commission of the intent to commit an 
offense under said Statute. Defendants under said Statute 
is not apprized of what act or acts they are forbidden to

| commit, said determination being left solely to the discre­
tion of the said Peace Officer. Said Statute is therefore so 
vague, capricious, arbitrary and unreasonable as to vio- 
ate the due process clause of the Fourteenth Amendment 
to the Constitution of the United States.



H



36

[fol. 47] Whereupon he prays that these, his grounds for 
a new trial, be inquired of by the court, and that a new 
trial he granted him.

B. Clarence Mayfield, E. H. Gadsden, Atty’s for 
Movant.

Read and consider. It is ordered that the State of 
Georgia show cause before me, at 3 :00 o’clock on the 23rd 
day of June, 1961, why the foregoing motion should not 
be granted.

It is further ordered that the State of Georgia be served 
with a copy of this motion and order; and that this order 
act as supersedeas until the further order of the court, 
and upon the defendant giving a good and sufficient bond 
in the amount of $80.00.

If for any reason said motion is not heard and determined 
at the time and place above fixed, it is ordered that the 
same shall he heard and determined at such time and place 
in vacation as counsel may agree upon, and upon failure 
to agree, then at such time and place as the presiding 
judge may fix on the application of either party, of which 
time and place the opposite party shall have at least five 
days notice.

If for any reason this motion is not heard and determined 
before the beginning of the next term of this court, then 
the same shall stand on the docket until heard and de­
termined at said term or thereafter.

It is further ordered that movant have, until hearing, 
whenever it may be, to prepare and present for approval a 
brief of the evidence in said case, and the presiding judge 
may enter his approval thereon at any time, either in term 
or vacation, and if the hearing of the motion shall be in 
vacation,̂  and the brief of evidence has not been filed in 
the clerk’s office at any time within ten days after motion 
is heard and determined.

It appearing that it is impossible to make out and com­
plete a brief of the testimony on said case before adjourn-





37

ment of court; it is ordered by the court that said motion 
be heard and determined in vacation and that movant may 
amend said motion at any time before the final hearing.
[fol.48] This 23rd day of May, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.

Chatham C ounty ) 
Georgia )

S tate of Georgia

vs.
J udson F ord

Due and legal service of the within and foregoing Motion 
for New Trial is hereby acknowledged, copy received.

This 12th day of May, 1961.
Andrew Ryan, Jr., Solicitor General for the Eastern 

Judicial District of the State of Georgia.

Chatham County Courthouse 
Room 301
Savannah, Georgia

Motion for New Trial, filed in Clerk’s office this 23rd 
day of May, 1961.

Jeff F. Dickey, Clerk, City Court of Savannah.

[fol. 49]
Order Continuing Hearing

Tlie within Motion for New Trial is hereby continued to 
u y 21st, 1961 at 3:00 P.M. All rights of movant are 

hereby reserved.
In Open Court, this 23rd day of June, 1961.

Columbus E. Alexander, Judge, City Court of 
Savannah.





38

Order Overruling Motion for New Trial
The within Motion for New Trial is hereby Overruled 
upon each and all of the grounds thereof.
In Open Court, this July 24th, 19G1.

Columbus E. Alexander, Judge, City Court of 
Savannah.

[fol. 50]
I n the City Court of S avannah

Georgia )
Chatham County )

Criminal No. 21074

S tate of Georgia, Plaintiff, 
vs.

Nathaniel W right, Charles L. S mart, E oscoe W hite, 
Jas. W. T homas, B enjamin Carter, J udson F ord, 
Defendants.

Violating Section 26-5301 Code of Georgia—1933 
Brief of the Evidence

Tried in the City Court of Savannah, Chatham County, 
Georgia, on May 18th, 1961, before the Honorable Colum­
bus E. Alexander, Judge of said Court, with a jury.

Appearances :

Sylvan A. Garfunkel, Esq., Asst. Solicitor General; Court 
House, Savannah, Ga., for the State.

E A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys at 
Jaw, Savannah, Georgia, for the Defendants.

And Thereupon G. H. T hompson duly sworn, testified:
Mv name is G. H. Thompson. I am a member of the 

Savannah Police Department, and I was a member of the





39

Savannah Police Department on or around January 23, 
1961 and I was on duty around two o’clock, here in 
Savannah, Chatham County, Georgia. A white lady came up 
and told us about certain people being in Daflin Park and 
asked us certain questions about them—we were, at that 
time, at about the eastern end of Grayson Stadium, which 
is situated at the end of the Daffin Park area—DaiTm Park 
consists of an area of about 50 acres and it is a recreational 
park. This white lady came up and gave us certain in­
formation and asked us certain questions about it, and we 
made an investigation at a basket ball court, in Daflin Park, 
which was about 500 feet west of where we were at the 
time we had our conversation with this white lady—Officer 
[fol. 51] G. W. Hillis was with me at the time, and as a 
result of the conversation with this white lady we rode over 
to this Basket Ball Court to investigate, and when we 
arrived at this Basket Ball Court we found around seven 
colored boys playing basket ball there on the Basket Ball 
Court.

Q. Are they here today ?
A. Yes sir.
Q. Are some of them here?
A. Yes sir.
Q. Where are they?
A. Well, this one with the red stripe tie, that’s one of 

them, and the other, sitting beside him on the right, and 
the one with the light shirt. That’s the only three I recog­
nize.

Brief continues:
As to their dress, they were pretty well dressed at that 

time; some of them had on dress shirts, some of them had 
on coats—not a dress coat, but a jacket. I didn’t notice 
what particular type shoes they had on, as far as I know 
they didn’t have ‘tennis shoes’ on. I am familiar with the 
type of shoes that people wear when they play basket ball, 
they didn’t have that type of shoes on as well as I remem­
ber.

I think that these defendants ranged in age from 23 to 
32.



.

.



40

There is a school nearby this Basket Ball Court, it is 
located at Washington Avenue and Bee Road, I mean, at 
Washington Avenue and Waters. There is another school 
on 44th Street—there are two schools nearby; I believe that 
they are both ‘grammar’ schools. I patrol that area and 
the children from these schools play there, they come there 
everyday I believe, I believe they come there every after­
noon when they get out of school, and I believe they come 
there during recess. The school, I believe, gets out about 
2:30 in the afternoon, and this was around 2:00 o’clock.

When I came up to these defendants I asked them to 
leave; I spoke to all of them as a group when I drove up 
there, and I asked them to leave twice, but they did not 
leave at that time. I gave them an opportunity to leave. 
One of the, I don’t know which one it was, came up and 
asked me who gave me orders to come out there and by 
what authority I came out there, and I told him that I didn’t 
need any orders to come out there, I believe the one that 
[fol. 52] asked me that is the third one there, sitting at the 
table in the Court Room here, the one there with the coat 
on, with the red button on it. The children from the schools, 
would have been out there shortly after that. The purpose 
of asking them to leave was to keep down trouble, which 
looked like to me might start-—there were five or six cars 
driving around the park at the time, white people. They left 
only after they were put under arrest, they were put under 
arrest approximately 5 to 10 minutes after I told them to 
leave,—Officer Hillis is the one who put them under arrest 
—we called the police cruiser and it came and we put them 
in that. It seemed like to me that they were welcoming the 
arrests, because all of them piled into the car, Officer Ilil- 
lis’s car, at the time, and he had to stop them—Officer 
Hillis’ car did not carry any of them, the cruiser carried 
them in, they waited in the car until the cruiser came, all 
seven of them, it was seven of them. Officer Dickerson came 
up, he was riding as Street Sergeant at the time, and I 
reported to him what had happened.

Cross Examination of Officer Thompson by Mr. Gadsden:
This matter first came to my attention when this white 

lady had this conversation with us, the lady who told us





41

that colored people were playing in the Basket Ball Court 
down there at Daffin Park, and that is the reason I went 
there, because some colored people were playing in the 
park. I did not ask this white lady how old these people 
were. As soon as I found out these were colored people 
I immediately went there.

I have seen people play basket ball without uniforms on. 
I hadn’t paid too much attention to basketball, so I don’t 
know if a man 32 years old would play that game or not, 
but it is possible that a person who is 32 could be playing 
basket hall, and it is possible for a person of twenty-three 
to be playing basketball too. Under ordinary circumstances 
I would not arrest boys for playing basketball in a public 
park. I have never made previous arrests in Daffin Park 
because people played basketball there, I don’t have any 
knowledge myself if any certain age group is limited to 
any particular basketball Court, I don’t know the rules of 
the City Recreational Department.
[fol. 53] I arrested these people for playing basket ball in 
Daffin Park. One reason was because they were negroes. 
I observed the conduct of these people, when they were on 
the basketball Court and they were doing nothing besides 
playing basket ball, they were just normally playing basket 
ball, and none of the children from the schools were there 
at that particular time.

I made these arrests around 2 :00 o’clock, and the schools 
let out around 2 :30 o’clock, and it would have been at least 
30 minutes before any children would have been in this 
particular area.

This basketball Court is approximately 100 yards from 
Waters Avenue, and there is a north-south driveway, which 
goes right by the court, it circles the park—the driveway 
is about 15 yards out from the basket ball court, it runs on 
each side of it, I believe that it is Waring Drive that runs 
in from Waters Avenue and these driveways runs from 
Waring Drive. There were cars riding around on these 
driveways, at least five or six cars, I wouldn’t say that that 
was unusual traffic for that time of day.

When I asked them to leave is when that party asked me 
as to what authority I was asking them to leave. I believe





42

that they asked Officer Hillis for his badge number. I don’t 
think that it is unusual for one to inquire ‘why’ they are 
being arrested.

Redirect Examination by Mr. Garfunkel:
I believe that most of them had on dress pants, as far as 

I can remember. I have seen people playing basket ball, 
but I have never seen them come out dressed like that to 
play basketball. There have been colored children in Daffin 
Park, bui; I did not arrest those children, but I arrested 
these people because we were afraid of what was going to 
happen. Colored children have played in Daffin Park, and 
they have fished there.

Recross Examination by Mr. Gadsden:
I have observed colored children playing in Daffin Park, 

but not playing basketball, but I have observed them play­
ing and fishing, we had gotten previous calls that they 
were fishing in there and such, but not playing basketball, 
I have never made an arrest in Daffin Park.
[fol. 54] sometimes they do and sometimes they don’t. It is 
possible to play basketball in street clothes.

Redirect Examination by Mr. Garfunkel:
If I wanted to play basketball I would not go out there 

dressed up, not the way they were dressed.

Carl Hager duly sworn, testified:

Direct Examination by Mr. Garfunkel:
My name is Carl Hager, I am Superintendent of the 

Recreational Department of the City of Savannah. As 
superintendent I am over all of the playgrounds in the 

'®a' annab> Chatham County, Georgia; that includes 
Pafhn Park and all the other parks that have playgrounds. 
Diese playgrounds are mostly in neighborhood areas, 
there are neighborhood areas where colored families live, 
and neighborhood areas where white people live, we try to





43

establish them in that manner, and, then, there are certain 
areas where they are mixed to a certain extent. We have 
a playground in the Park Extension, and that is a mixed 
areas for white and colored—a white section and a colored 
section—it is mostly white, but there are several colored 
sections within several blocks, and they are much closer 
now than they use to be. Wells Park is what we call a 
border-area and that is a mixed area—one side is colored 
and one side is white. The Daffin Park area, mostly around 
that area is mostly white. It has occurred, from time to 
time, that colored children would play in the Daffin Park 
area and in the Park Extension area, but no action had 
been taken, because it is legal, it is allowed, and nobody 
has said anything about it. I am familiar with the Daffin 
Park playground area, in fact, the office of the Recreational 
Department is in Daffin Park. That basket ball court is 
about a block from the office. I was advised that an arrest 
had been made, but they had all gone when I was told about 
it and I did know why the arrests had been made. The 
playground areas are basically for young children, say 
15 to 16 and under, along that age group, we give priority 
to the playground to the younger children over the grown­
ups, it made no difference as to whether they were white or 
colored. Anytime that we requested anyone to do something 
[fol. 55] and they refused we would ask the police to stop 
in, if we would ask them to leave and they did not we would 
ask the police to step in. We have had reports that colored 
children have played in the Park Extension, but they were 
never arrested or told to leave.

We have had grown people to come out to Daffin Park 
and play soft-ball; we have soft-ball diamonds and also 
younger people play on them, but we try to regulate the 
times for playing on the diamonds so that there will not be 
a conflict between the older people and the younger ones, 
and we issue permits in all cases where we think there will 
be conflict, we try to regulate them. We do not have the 
Tennis Courts regulated at the present time, they are now 
on first come first serve basis, but we plan to regulate these.



.



44

Cross Examination by Mr. Mayfield:
Q. Mr. Hager, I would like to ask you if your office made 

the request for the arrest on February 21st?
Objection to above by Mr. Garfunkel—see rulings of the 

Court, page 1, top of page.

Brief continues:
There are no signs posted in conspicuous places around 

the park defining what hours certain age groups were to 
use particular areas of the park, but we do have signs say­
ing that you do have to request permits from the office 
before using certain facilities, in other words, we designate 
the time ourselves as to what is to be carried out in those 
areas. I testified that if there was a conflict between the 
younger people and the older people using the park facili­
ties the preference would be for the younger people to use 
them, but we have no objections to older people using the 
facilities if there are no younger people present or if they 
are not scheduled to be used by the younger people.

There are about 7 parks in the City in negro areas and 
about 14 in white areas, and that changes during the season 
of a year according to the leadership, and I might explain 
that we could set apart the one that is under leadership; 
we have areas that have equipment, but do not have leaders 
and we do not consider those play grounds, it is only those 
where we have paid leadership, like tennis courts, and at 
Daflin Park and at Cann Park, where we pay an individual 
[fol. 56] to open and close the playgrounds and regulate the 
use of them.

The parks in white areas are located as follows:
‘Savannah Gardens’—Pensylvania near Jones; ‘Avon­

dale’—Texas Avenue and ‘Victory Heights’—east 42nd 
Street, on the ether side of Skidaway; ‘Forrest Hills’—near 
DeRenne Ave. and Skidaway Road; ‘Hull’; 54th and At­
lantic Avenue; ‘Daffin Park’—Waters and Victory Drive; 
‘Garden Homes’—near Park Avenue and Cedar; ‘Live Oak’ 
—Park Avenue and Live Oak; ‘Davant’—Perry and Lincoln; 
‘Wells’—3Sth and Montgomery; ‘Forsyth’-—Gaston and 
Bull; ‘Fred Wessels’—Fred Wessels Housing Units.





45

The parks in negro areas are located as follows:
‘Yamacraw Village’; ‘Carver Village area’—West Gwin­

nett Street; ‘Pearl Smith School’, which is also out in that 
area; ‘Cann’—Burroughs and W. 45th Street; ‘Soldiers 
Field Area—Paulsen and Joe; ‘Robert Hitch Housing Area. 
Now that is six of them, I can’t think of the seventh at 
present.

It has been the custom to use the parks separately for the 
different races. I couldn’t say whether or not a permit 
would or would not be issued to a person of color if that 
person came to the office the Recreational Department and 
requested a permit to play on the courts, but I am of the 
opinion that it would have been, we have never refused one, 
the request never has been made.

Grownups use Dallin Park at certain times and under cer­
tain conditions, but to be frank with you I have never seen 
any using the basketball courts, however grownups coul^ 
use them if there was no other need for them. To some 
extent particular attire is required for use on the basket­
ball court, because we feel some responsibility to the people, 
in reference to the proper attire worn—we don’t want them 
playing on there with baseball spikes on their shoes, or 
track shoes, or, in some cases, certain types of other shoes 
like shoes worn on a tennis court. We would expect them 
to wear the usual basketball attire—short trunks and what 
have you, if they were playing in one of our supervised 
regulated programs, but we would probably not expect it 
if they were playing in an unregulated and unsupervised 
program, and it would be consistent with our program to 
allow persons to wear ordinary clothing on the courts if 
[fol. 57] they so chose to do so, I don’t think that we would 
object to that. There is no minimum or maximum age limit 
for the use of basket ball courts, however, at the present 
time we have established a minimum—a maximum age limit 
of 16 years for any playground area. Programming is not so 
readily understood by lay people, by age grouping is taken 
into consideration in programming because we don’t want 
the older people competing with the younger people, and 
we don’t like to have them associating because we don’t 
think that a younger person should learn too much from the





46

older person or vice versa, we don’t think it conducive to 
good community relations, the building of character and 
the proper traits for younger people, and I think the school 
systems have followed somewhat the same procedure in 
segregating them in age groups, such as the younger school 
groups, the junior highs, and the high schools, and it is for 
the same purpose that we regulate our programs according 
to age groups and, sometimes, sexes also, and all of this is 
in accordance with, basically, a planned program. I could 
not answer the cpiestion as to whether everyone using the 
basketball courts come under the planned program, but 
at times they do use it when we are not putting a plan into 
action and when not using it, but I couldn’t say when or 
where, because we are not there and we don’t know. There 
is no regulation for playing on a Court when it is not in 
use and there is no one around.

Redirect Examination by Mr. Garfunkel:
On school days these courts and the playground area at 

Baffin Park are available for only certain age groups and 
they are only used at that time of day by the schools in that 
vicinity, it is, more or less, left available for them, that 
is the way we have our recreation setup.

Most of our playground areas are arranged according 
to the families living in that particular area, playgrounds 
where there are white families and playgrounds where there 
are colored families—most of them are arranged in that 
manner according to the areas. We do feel this, that play­
grounds are established within a distance of one mile of 
the people who are expected to use them, and normally 
when we find that when a playground is established with 
that in mind that people who live within one mile of it 
will use it, so if we put one in a predominantly negro 
neighborhood, then, predominantly negroes would use it. 
[fol. 58] and the same would be true for the whites, but, of 
course, we can’t always control that because we do not have 
the choice of locations where we would like to have them, 
and that is the reason why some could very' easily become 
mixed areas, such as Park Extension, because that is within 
a mile of both white and colored, and that is the reason 
why both play in that area.





47

Recross Examination by Mr. Mayfield:
I don’t know whether or not we had a planned program 

arranged for the day that these arrests were made, I would 
have to check my records. We do not have parks in colored 
areas that are comparable in size or comparable in facilities 
to Daffin Park, but colored boys do fish in the pond at Daffin 
Park. The size of the facilities would be determined by 
the area. Cann Park is probably our most complete area 
that is in a colored neighborhood, and on that we have a 
tennis court—and we use that court for basketball, we have 
swings, slides, soft ball field, a small practice field, which 
is also used for football, and it also has a concrete spray 
pool, picnic table, and a few other odds and ends of equip­
ment, and it has a drinking fountain, and tilings of that 
nature, which would make it about as well equipped as any 
playground we have except for size.

I believe that the Cann Park basket ball court was com­
pleted on January 23, 19G1.

Q. If your planned program did not have the 23rd of 
January, 19G1, set aside for any particular activity would 
it have been permissible to use this basket ball court in 
Daffin Park in the absence of children.

A. I can’t very well answer that question because you 
have several questions in one. First, I would like to say that 
normally we would not schedule anything for that time 
of the day because of the schools using the totals area there 
and, second, 1 would not know whether we had something 
scheduled without referring to my records. Now if the 
schools were not there and were not using it and we had 
no program planned we certainly would not have been con­
cerned about other people using it. The schools use the 
area during school hours. The Parochial School uses it 
during recess and lunch periods and also for sport, as also 
the Lutheran School, and the public schools bring their 
students out there by bus and at various times during school 
[fol. 59] hours all day long, we never know when they are 
coming, and they use Cann Park the same way, I might add.

If it was compatible to our program we would grant a 
permit for the use of the basket ball court in Daffin Park to 
anyone regardless of race, creed or color, however, at that





48

time of day it M ould not be compatible to our program. If 
that basket ball court M as not scheduled it would be com­
patible with our program for them to use it, and M*e M-ould 
not mind them using it. If there M as a permit issued there 
would be no objections as to race, creed or color.

C. C. Dickerson duly sworn, testified:

Direct Examination by Mr. Garfunkel:
On January 23rd of this year I M -as a Street Sergeant 

with the Savannah Police Department. I M 'as a Street 
Sergeant around tM’O o’clock in the afternoon of that date 
M’hen I received a call to go to the vicinity of Daffin Park. 
That M’a s  on a school day and school v a s  in session on that 
day.

When I arrived there I found certain men in the cus­
tody of Officers Hillis and Thompson, these men are here 
today, they are all sitting at the table there Mri t h  their turn 
attorneys—there Mrere seven originally, but there are only 
six of the defendants sitting at the table—Garvin King, 
age 19, hasn’t shown up today.

These defendants were under arrest when I arrived. 
They called for the Street Sergeant, but before I got there 
I heard them call for the wagon also. When I arrived I 
found these defendants dressed up nicely, I don’t think 
that all of them had suits on, but they had on nice pants 
and shoes—they were all dressed nice. I would say that 
they wasn’t dressed for playing basketball, if I were play­
ing basketball I would have on something more comfortable 
other than M'hat they had on, all of the people were dressed 
nice though.

Cross Examination of Mr. Dickerson by Mr. Gadsden:
All of the activities were over when I arrived there. 

[fol.60] I have played basketball, but along about the 
time I played basketball out in the country I didn’t have 
on shoes, I M’as dressed in the custom and style of that time.

I have been a policeman for quite sometime. I have seen 
people playing on basketball courts in casual attire, but





49

I wouldn’t say that I have seen them playing basketball 
while being dressed as nicely as these people were on this 
particular day, but I ’d say that they sometimes play in 
their ordinary clothes, but I ’d say also that they usually 
play in dungarees and khaki and slacks, but these people 
were dressed a little better than that.

I knew a basketball coach, who was thirty. Professional 
players get on up above thirty years in age sometimes, and 
I guess there are some people above thirty who play basket­
ball.

6. W. Hillis duly sworn, testified:

Direct Examination by Mr. Garfunkel:
My name is G. W. Hillis, I am a police officer of the 

Savannah Police Department, and I was a member of and 
on duty with the Savannah Police Department on or about 
the 23rd day of January of this year; I was on duty then 
and I had on my police uniform. I was on duty with Officer 
Thompson, he also had on his police uniform, I was on duty 
around tv o o’clock on the afternoon of the date in the 
vicinity of Daffin Park, here in Savannah, Chatham County, 
Georgia, at around that time I received some informa­
tion from a white lady as a result of that informa­
tion I went with Officer Thompson, in a police automobile, 
to the basketball court in Daffin Park, here in Savannah, 
Chatham County, Georgia. When I arrived there I saw the 
defendants, they were playing basketball. Officer Thomp­
son talked to them first, and then I talked to them. I asked 
them to leave, Officer Thompson had already asked them, 
I heard him ask them. They did not leave, and they did not 
stop playing until I told them they were under arrest. We 
called the wagon (cruiser). Officer Thompson told them 
that they would have to leave, he told them that at first, and 
they did have an opportunity to leave after he told them 
that. He asked them to leave, and then I asked them to 
leave after I saw they wasn’t going to stop playing, and 
[fol. 61] when I asked them to leave one of them made a 
sarcastic remark, saying: “What did he say, I didn’t hear 
him”, he was trying to be sarcastic. When I told them to





51

[fol.63]
In the City Court of S avannah 

[Title omitted]

Order of Consolidation— August 17, 1961
It appearing to the Court that the above stated cases 

were tried in the City Court of Savannah on May 18, 1961, 
and that all defendants therein were found guilty and 
sentenced by the Court to pay $100.00 or serve 5 months 
subject to the Board of Corrections of the State of Georgia.

It further appearing to the Court that Counsel for the 
Defendants filed a Motion for a New Trial for each and 
every defendant on the 23rd day of May, 1961, and that 
said Motion was set for hearing on June 23, 1961, the 
Honorable Columbus E. Alexander, Judge, then presiding, 
continued the hearing on said Motion until the 21st day 
of July, 1961, at which time said Motion and Brief of Evi­
dence was submitted to the Court without argument of 
Counsel. Said Motions for New Trial were considered by 
the Court and on the 24th day of July, 1961, the Honorable 
Columbus E. Alexander, Judge of said Court, entered an 
Order overruling said Motions for New Trial on each and 
every ground.

It further appearing to the Court that the Judgment and 
sentence in said cases are predicated upon similar circum­
stances and facts and involve the same defensive pleas and 
same question of law.

It is therefore ordered by the Court that said cases be 
consolidated and proceed to hearing before the Supreme 
Court of Georgia as if all said cases had been originally 
brought as such.

In Open Court, this 17th day of August, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah, Chatham County, Georgia.

Filed in office this 17th day of August, 1961. Beatrice M.
11) Dept. Clerk, City Court, Savannah.

* • • * * * #



■



52

[fol. 67]
In the S upreme Court of Georgia

Case No. 21430

W right, et al.,

v.
T he S tate.

Opinion— November 9, 1961
By the Court:

1. A mere recital in the brief of the defendants of the 
existence of an assignment of error, without argument or 
citation of authorities in its support, and without a state­
ment that it is insisted upon by counsel, is insufficient to 
save it from being treated as abandoned.

2. It is not error in a criminal case for the trial judge 
to refuse to direct a verdict of acquittal.

3. A demurrer which seeks to add facts not apparent on 
the face of the accusation must fail as a speaking demurrer.

4. A Code section utilizing terms with an established 
common-law meaning, and which is itself of common-law 
origin, is sufficiently definite to apprise a person of common 
intelligence with a standard which he may use in determin­
ing its command; this more than satisfies the requirements 
of due process.

5. An officer is not vested with arbitrary authority when 
he only makes an arrest, and it is left to judicial processes 
to ascertain if the described components of a criminal act 
are present.

Submitted October 9, 1961—Decided November 9, 1961— 
Rehearing denied November 21, 1961.

Unlawful assembly; constitutional question. Savannah 
City Court. Before Judge Alexander.





53

[fol. 68] The defendants, Nathaniel Wright, Charles L. 
Smart, Rosco(e?) White, James W. Thomas, Benjamin 
Carter, and Judson Ford, were brought to trial in the 
City Court of Savannah for violation of Code §26-5301 
which reads “Unlawful assemblies.—Any two or more per­
sons who shall assemble for the purpose of disturbing the 
public peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, justice, 
sheriff, constable, coroner, or other peace officer, shall be 
guilty of a misdemeanor.” The gravamen of the offense, 
as detailed in the accusation, was: “In that the said de­
fendants did as? enable at Daffin Park for the purpose of 
disturbing the public peace and refused to disburse (sic) 
on being commanded to do so by sheriff, constable, and 
peace officer, to wit: W. H. Thompson and G. W. Hillis.”

Before their arraignment and before pleading to the ac­
cusation, the defendants filed a general demurrer to the 
accusation, contending that for five enumerated reasons 
the Code section above cited is unconstitutional. The trial 
judge overruled the general demurrer, and evidence was 
then introduced by the State at the conclusion of which 
counsel for the defendants made a motion to acquit. After 
the argument of counsel, in the absence of the jury, the 
trial judge denied the motion to acquit. The jury was re­
called and, after argument of counsel and the charge of the 
court, returned a verdict of guilty. Whereupon the trial 
judge sentenced each defendant to pay a fine of $100 or to 
serve five months imprisonment, with the exception of the 
defendant Wright, who was sentenced to pay a fine of $125 
or to serve six months imprisonment.

The defendants filed a motion for new trial which was 
subsequently overruled on each and every ground. The 
[fol. 69] trial judge then issued an order permitting the 
defendants’ cases to be consolidated since all the cases were 
predicated upon identical circumstances and facts, and in­
volved the same defensive pleas and the same questions of 
law.

The defendants excepted and assign error on the over­
ruling of their general demurrer, the refusal by the trial 
judge to direct a verdict of acquittal, the denial of their





54

motion for a new trial, and on the judgment sentencing the 
defendants. Each of these assignments of error will be 
considered in order inverse from that in which it is above 
presented.

E. H. Gadsden, B. Clarence Mayfield, for plaintiffs in 
error. Andrew J. Ryan, Solicitor-General, Sylvan A. Gar- 
funkel, contra.

[fol. 70] Quillian, Justice. 1. In their bill of exceptions 
the defendants assign error on the judgment sentencing 
each defendant (fourth ground) and on the denial of their 
motion for a new trial (third ground). However, in their 
brief to this court they completely omitted the fourth 
ground and merely referred to the third ground by asking: 
“Did the court commit error in overruling plaintiff’s in 
error motion for new’ trial?” There was no argument, cita­
tion of authority, or statement that such grounds were still 
relied upon. Therefore, the applicable rule, as laid down 
in Henderson v. Lott, 163 Ga. 326 (2) (136 SE 403), is: 
“Assignments of error not insisted upon by counsel in 
their hnefs or otherwise will be treated by this court as 
abandoned. A mere recital in briefs of the existence of 
an assignment of error, without argument or citation of 
authorities in its support, and without a statement that 
it is insisted upon by counsel, is insufficient to save it from 
being treated as abandoned.” Almand v. Pate, 143 Ga. 711 
(1) (85 SE 909); Head v. Lee, 203 Ga. 191, 202 (45 SE 2d 
666); The B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE 2d 
790).

2. The second ground upon which the defendants rely 
is that the trial judge erred in failing to direct a verdict 
of acquittal for the defendants at the conclusion of the 
State’s evidence. It is not error in a criminal case to refuse 
to direct a verdict of not guilty. Winford v. State, 213 Ga. 
396, 397 (99 SE 2d 120); Williams v. State, 206 Ga. 107 
(10) (55 SE 2d 589); Coleman v. State, 211 Ga. 704 (2) 
(88 SE 2d 381); Baugh v. State, 211 Ga. 863 (1) (89 SE 2d





55

3. The first ground in the bill of exceptions is that the 
trial judge erred in overruling their general demurrers 
to the accusation. The defendants urge five contentions as 
[fol. 71] to why Code §26-5301, per se and as applied, vio­
lates rights secured to them by the Constitutions of the 
United States and of Georgia. Contentions (3) and (4) 
attack the Code section in question as unconstitutional as 
applied, since it was used to enforce racial discrimination, 
and as unconstitutional in that the arrest was pursuant to 
the policy, custom, and usage of the State of Georgia, which 
compels segregation of the races.

Neither of these two contentions can he ascertained from 
an examination of the accusation. A demurrer may prop­
erly attack only those defects which appear on the face of 
the petition, indictment, or, in this case, accusation. A 
demurrer which seeks to add facts not so apparent or to 
supply extrinsic matters must fail as a speaking demurrer. 
Jackson v. State, 64 Ga. 344; Arthur v. State, 146 Ga. 827 
(92 SE 637). See also Walters v. State, 90 Ga. App. 360, 
365 (83 SE 2d 48).

4. Contentions (1) and (2) attack the Code section, on 
its face, as violative of due process of law guaranteed by 
the Fourteenth Amendment to the United States Constitu­
tion and by the Georgia Constitution, arguing that said 
Code section is so vague that the defendants are not placed 
on notice as to what criminal act they have allegedly com­
mitted, rendering it impossible to answer the charge or to 
make legal defense, and unconscionably vague in that no­
where in the statute does there appear a definition of dis­
turbing the public peace or committing any unlawful act.

Since the defendants were charged only with “disturbing 
the public peace,” the alleged vagueness of “committing any 
unlawful act” need not he considered. Chaplinsky v. New 

i Hampshire, 315 U.S. 568, 572 (62 S. Ct. 766, 86 LE 1031); 
Whittle v. Jones, 198 Ga. 538, 544 (32 SE 2d 94); Kryder 
[fol.72j v. State, 212 Ga. 272, 274 (91 SE 2d 612). Neither 
does the defendants’ purported attack on the Code section 
under the Georgia Constitution raise any meritorious issue. 
In order to raise a question as to the constitutionality of a 
statute, the provision of the Constitution alleged to have



'



56

been violated must be clearly specified and designated, 
reference being made to the part, paragraph, or section. 
Clements v. Powell, 155 Ga. 278, 280 (8) (166 SE 624); 
Inlaw v. State, 168 Ga. 377 (1) (147 SE 881); Johns v. 
State, 180 Ga. 1S7, 188 (3) (178 SE 707); Manufacturers 
Trust Co. v. Wilby-Kincey Service Corp., 204 Ga. 273, 274 
(49 SE 2d 514); Krasner v. Rutledge, 204 Ga. 380, 382 
(49 SE 2d 864).

The United States Supreme Court has held that a statute 
is not unconscionably vague where its provisions employ 
words with a well-settled common-law meaning (Waters- 
Pierce Oil Co. v. Texas, 212 U.S. 86, 108-111, 29 S. Ct. 
220, 53 LE 417); Nash v. United States, 229 U.S. 373, 376- 
37s’ 33 S. Ct. 780, 57 LE 1232; Hygrade Provision Co. v. 
Sherman, 266 U.S. 497, 502, 45 S. Ct. 141, 69 LE 402), 
approved in Connally v. General Const. Co., 269 U.S. 385, 
391 (46 S. Ct. 126, 70 LE 322); or is not couched in terms 
so vague that men of common intelligence must necessarily 
guess at its meaning and differ as to its application. Whit­
ney v. California, 274 U.S. 357, 368 (47 S. Ct. 641, 71 LE 
1095); Fox v. Washington, 236 U.S. 273, 276-278 (35 S. 
Ct. 383, 59 LE 573); Miller v. Strahl, 239 U.S. 426, 434 (36
S. Ct. 147, 60 LE 364); Omaechevarria v. Idaho, 246 U.S. 
343,348 ( 38 S. Ct. 323, 62 LE 763); United States v. Alford, 
274 U.S. 264, 267 (47 S. Ct. 591, 71 LE 1040).

Here the term “disturbing the public peace” is of generic 
common-law origin. Faulkner v. State, 166 Ga. 645, 665 
(144 SE 193); 11 C.J.S. 817, §1. “Disturbing the peace” 
or its synonym, “breach of peace,” has long been inherently 
[fol. 73] encompassed in our law and is prevalent in the 
various jurisdictions. 11 C.J.S. 817 et seq., §2 et seq.; 8 
Am. Jur. 834 et seq., §3 et seq.

Further, the crime of unlawful assembly is itself of 
common-law origin, Reg. v. Pugh (1704), 87 Eng. Reprint 
900, Rex v. Birt (1831), 172 Eng. Reprint 919, 91 C.J.S. 
495, §1; 46 Am. Jur. 126, $2; is described in slightly vary­
ing forms in the vast majority of jurisdictions (Annot., 
71 ALR 2d 875); and in our own State was codified in the 
fienal Code of 1816 (Ga. L. 1816, p. 178; Lamar’s Comp. p. 
592).



.

'



57

“The uncertainty in a statute which will amount to a 
denial of due process of law is not the difficulty of ascertain­
ing whether close cases fall within or without the prohibi­
tion of the statute, but whether the standard established 
by the statute is so uncertain that it cannot be determined 
with reasonable definiteness that any particular act is dis­
approved; and a criminal statute is sufficiently definite if 
its terms furnish a test based on knowable criteria which 
men of common intelligence who conn.- in contact with the 
statute may use with reasonable safety in determining its 
command.” 163 A.L.R. 1108, Annotating Minnesota v. 
Lanesboro Produce Co., 221 Minn. 246 (21 NW 2d 792) 
(citing Nash v. United States, supra, United States v. 
Wurzbach, 280 U.S. 396, 50 S. Ct. 167, 74 LE 508, and 
Collins v. Com. of Kentucky, 234 U.S. 634, 34 S. Ct. 924, 
58 LE 1510). The language of the Code section in ques­
tion is pronounced in terms so lucid and unambiguous that 
a person of common intelligence would discern its meaning 
and apprehend with what violation he was charged. Farrar 
v. State, 187 Ga. 401 (200 SE 803); Fowler v. State, 189 
Ga. 733 (8 SE 2d 77); Watson v. State, 192 Ga. 679 (16 
SE 2d 426).

5. The last contention (5) assigned, that the Code sec- 
[fol. 74] tion confers untrammeled and arbitrary authority 
upon the arresting officer, has no merit since we have de­
termined that the statute has a clear-cut standard to ap­
prise one of what constitutes a criminal act and thus to 
guide the conduct of such officer. There is no usurpation 
of judicial authority, nor the improper delegation of ju­
dicial discretion, since the officer involved only makes the 
arrest when, in his discretion, he believes a crime to have 
been perpetrated. The innocence or guilt, beyond a rea­
sonable doubt, of the accused must still be determined by 
judicial process.

This is a case of first impression in this State, and our 
research has failed to reveal any full-bench decisions from 
other jurisdictions on the exact question of the constitu­
tionality of a similar unlawful-assembly statute. Neverthe­
less, see Code v. Arkansas, 338 U.S. 345 (70 S. Ct. 172, 94 
LE 155). However, by applying the well-recognized prin-





58

ciples and applicable tests above stated, we find no depriva­
tion of the defendants’ constitutional rights under the 
Fourteenth Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.

[fol. 75]
I n the S upreme Court of Georgia

J udgment—November 9, 19G1
The Honorable Supreme Court met pursuant to adjourn­

ment. The following judgment was rendered:

N athaniel W right et al.,

v.
T he S tate.

This case came before this court upon a writ of error 
from the City Court of Savannah; and, after argument 
had, it is considered and adjudged that the judgment of the 
court below be affirmed. All the Justices concur.

[fol. 76]
In the S upreme Court of Georgia 

[Title omitted]

Motion for R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe 

White, James W. Thomas, Benjamin Carter and Judson 
Ford, and within the time allowed by law, file this their 
Motion for Rehearing in the case stated, and for grounds 
thereof, say:

— 1 —

This H onorable C ourt see m s to  h a v e  c o m p le te ly  d is r e ­
garded the fact th a t th e  p la in t if f ’s  -in -E r r o r  w e re  “p eace-





58

ciples and applicable tests above stated, we find no depriva­
tion of the defendants’ constitutional rights under the 
Fourteenth Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.

[fol. 75]
I n the S upreme Court of Georgia

J udgment—November 9, 19G1
The Honorable Supreme Court met pursuant to adjourn­

ment. The following judgment was rendered:

N athaniel W right et al., 

v.
T he S tate.

This case came before this court upon a writ of error 
from the City Court of Savannah; and, after argument 
had, it is considered and adjudged that the judgment of the 
court below be affirmed. All the Justices concur.

[fol. 76]
I n the S upreme Court of Georgia 

[Title omitted]

Motion for R ehearing— Filed November 17, 1961
Now Come Nathaniel Wright, Charles L. Smart, Roscoe 

^  liite, James 1 \. Thomas, Benjamin Carter and Judson 
Ford, and within the time allowed by law, file this their 
Motion for Rehearing in the case stated, and for grounds 
thereof, say:

— 1 —

This H on orab le C ourt see m s to  h a v e  c o m p le te ly  d is r e ­
garded the fa c t th a t th e  p la in t if f ’s - in -E r r o r  w e r e  “p eace-





59

ably' playing basketball at the time immediately preceding 
the arrest.

— 2—

The arresting Officers testified that the arrest was made 
solely because the PlaintifFs-in-Error are Negroes.

The United States Constitution clearly imposes a pro­
hibition upon a State from denying equal protection of the 
law to its Citizens.

— 4—

An arrest based upon color without any supposed viola­
tion of the law constituted a deprivation of the Plaintiff’s- 
in-Error constitutional rights under the Fourteenth Amend­
ment of the United States Constitution.
[foL 77]

—5—
The evidence shows beyond a reasonable doubt that the 

Plaintiffs-in-Error were not violating any law other than 
the fact that they were playing basketball in a municipally 
owned and operated “white” park, and there was no “breach 
of the peace” on the part of Plaintiffs-in-Error.

We respectfully submit that the Court, in its opinion 
in this case, has overlooked the essential fact that there 
was no disorder at any time on the part of the Plaintiffs- 
in-Error, either before or after the arrest.

Wherefore, your Petitioners pray that a rehearing be 
granted in this case, and the position of the Court reversed.

B. Clarence Mayfield, 458% West Broad Street, 
Savannah, Georgia; E. H. Gadsden, 458% West 
Broad Street, Savannah, Georgia, Attorneys for 
Plaintiffs-in-Error.

* #





[fol.SO]
I n the S upreme Court of Georgia 

Atlanta

Order Denying Motion for R ehearing—November 21, 19G1
The Honorable Supreme Court met pursuant to adjourn­

ment. The following order was passed:

N athaniel W right et al.,

50

v.
T he  S tate.

Upon consideration of the motion for a rehearing filed in 
this case, it is ordered that it be hereby denied.

[fol.81] Clerk’s Certificate (omitted in printing). 

[fol.82]
S upreme Court of the U nited S tates 

No. 729, October Term, 1961

N athaniel W right, et al., Petitioners,
vs. l

Georgia.

Order A llowing Certiorari— June 25, 1962
The petition herein for a writ of certiorari to the Su­

preme Court of the State of Georgia is granted, and the 
ease is transferred to the summary calendar. The case is 
set for argument to follow No. 750.

And it is further ordered that the duly certified copy 
of the transcript of the proceedings below which accom­
panied the petition shall lie treated as though filed in re­
sponse to such writ.

Mr. Justice Frankfurter took no part in the consideration 
or decision of this petition.





61

[fol. 83]
I n the City Court of S avannah

Georgia, )
Chatham County. )

Criminal No.................
Violation of Georgia Law 2G-5301, Code of 1933, 

a Misdemeanor

S tate of Georgia, Plaintiff,
vs.

Nathaniel W right, et al., Defendants.

Tried in the City Court of Savannah, Chatham County, 
Georgia, before the Honorable Columbus E. Alexander, 
Judge of said Court, with a Jury.

Appearances :
Sylvan A. Garfunkel, Esq., Asst. Solicitor General, 

Court House, Savannah, Ga., For State.
E. A. Gadsden, Esq., B. C. Mayfield, Esq., Attorneys 

at Law, Savannah, Georgia, For Defendants.

Charge of the Court—Filed July 24, 19G1 
Judge Alexander:

Gentlemen of the jury, this is the case of the State 
versus six defendants. I will read them to you, and you 
will have this with you in your Jury Room when you retire: 
Nathaniel Wright, Charles L. Smart, Roscoe White, James 
W. Thomas, Andrew McArthur, and Judson Ford. You 
will notice one name, that I have circled, that is not being 
tried, you are not concerned with King not being tried 
today, so these six defendants are the defendants in this



'



62

case in which you are interested during the course of your 
[fol. 84] deliberation.

These defendants are charged with the violation of 
Georgia Law 2G-5301, Code of Georgia of 1933, which is 
a Misdemeanor.

To these accusations, or to this accusation against these 
six defendants, the defendants enter a plea of not guilty. 
That puts in issue the averments contained in the accusa­
tion, as well as the guilt or the innocence of the defendants 
being tried in this case.

I charge you, gentlemen, that in all criminal cases the 
defendant (or defendants), if they desire to do so, shall 
have the right to make to the Court and jury such state­
ment (or statements) of the case as they may deem proper 
in their defense, and such statement (or statements) shall 
have such force only as the jury may think right to give 
said statement (or statements), and they may believe the 
same in preference to the sworn testimony in the case.

I charge you further, gentlemen, that the burden is upon 
the State to prove the guilt of these defendants beyond a 
reasonable doubt; they entered upon the trial of these cases 
with the presumption of innocence in their favor and this 
presumption follows them throughout the trial unless and 
until sufficient evidence has been introduced by the State 
to satisfy your minds beyond a reasonable doubt of the 
guilt of these defendants of the charges contained in the 
accusation.

A reasonable doubt is one that grows out of the testi­
mony or the lack of testimony—it is not an artificial or 
capricious doubt, but it should be real, honestly and fairly 
entertained by the jury after every reasonable effort to 
find out the truth of the case, and if at the end of your 
deliberation you have this character of doubt upon your 
minds you should give the defendants the benefit of it 
and acquit them, but, on the other hand, if you do not have 
such character of doubt upon your minds, and you believe 
that the State has made out the case as contained in the 
accusation under the evidence and under all the facts and 
circumstances of the case in its entirety beyond a reason­
able doubt it will be your duty to convict the defendants.





63

[fol. 85] The true question in criminal cases is not whether 
it be possible that the conclusion to which the testimony 
points may be false, but whether there be sufficient testi­
mony to satisfy your minds beyond a reasonable doubt that 
these defendants are guilty of the offenses charged in the 
accusations.

I further charge you, gentlemen of the jury, that you are 
the judges of both the law and the facts in cases of this 
nature; the Jaw is given you in charge by the Court, the 
facts you get from the witnesses, who are sworn and who 
testify in the case, upon the statements of the defendants, 
from all the facts and circumstances of the case in its 
entirety, and during your deliberation you weigh the evi­
dence of the case in the light of the law applicable to the 
case, as given you in charge by the Court.

As stated to you, in the beginning of this charge, these 
defendants are charged with the violation of Georgia Law, 
Code Section 26-5301 of the Georgia Code of 1933. More 
specifically, these defendants: Benjamin Carter, James W. 
Thomas, Roscoe White, Charles L. Smart, Judson Ford and 
Nathaniel Wright, are charged, that in Chatham County, 
Georgia, with the offense of a misdemeanor, in that said 
defendants, in said County and State, on the 23rd day of 
January of this year, in that said defendants did assemble 
at Daffin Park for the purpose of disturbing the peace and 
they refused to disperse on being commanded to do so by 
Sheriff, Constable and Peace Officers, to-wit: W. H. Thomp­
son and G. W. Hillis, contrary to the laws of this State, 
the good order, peace and dignity thereof. I further charge 
you that this accusation is brought pursuant to Code Sec­
tion 26-5301 of the 1933 Criminal Code of Georgia, the 
heading of the Section under which this accusation is 
brought is “Unlawful Assembly”, and it reads as follows:

“Any two or more persons, who shall assemble for the 
purpose of disturbing the public peace, or committing 
any lawful act, and shall not disperse on being eom- 
[fol.86] manded to do so by a Judge, Justice, Sheriff, 
Constable, Coroner, or any other Peace Officer, shall be 
guilty of a misdemeanor.”





64
That is the law that these defendants are charged with 
violating, and further in connection with that I charge you 
that the term “Other Peace Officer”, mentioned in this Sec­
tion, would include police officers of the Police Department 
of the City of Savannah, Georgia.

That, gentlemen, is the law of the case. You are the 
judges of the facts and there is nothing left for me to do 
now except instruct you as to the form of your verdict.

If you find the defendants guilty the form of your ver­
dict, in substance, should be: “We the jury find the de­
fendants guilty”—see that your verdict is dated and signed 
by your foreman.

If you find the defendants not guilty the form of your 
verdict, in substance, should be: “We the jury find the 
defendants not guilty”, see that your verdict is signed and 
dated by your foreman.

Thank you gentlemen, now you may retire and deliberate 
upon your verdict.

End of Charge
Reporter’s Certificate to foregoing paper (omitted in 

printing).

[fol. 87] The above and foregoing 3 pages of typewritten 
material are approved as containing the correct charge as 
given the jury in the aforesaid case, and the same are 
hereby ordered filed as part of the record in said case.

This 24th day of July, 1961.
Columbus E. Alexander, Judge, City Court of 

Savannah.

[File endorsement omitted]



'



F!LE-'OMY COP'

I n  the

&wpvm? ( t a r t  of tljr lu ttr i i  ^ ta iro
October Term, 1962 

No. 68

N athaniel W eight, et al.,
Petitioners,

— v.—

Georgia.

ON WRIT OF CERTIORARI TO TH E SUPREM E COURT OF THE  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E . H. Gadsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners

J





INDEX
PAGE

Opinion Below .................................................................  1

Jurisdiction ............. - ............._..... - ............................. 1

Constitutional and Statutory Provisions Involved ..... 2

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

Statement ............................        3

Argument :

I. The Petitioners Were Denied Due Process in 
That They Were Convicted Under a Statute 
Too Vague and Indefinite to Provide an Ascer­
tainable Standard of Guilt, and Which Pro­
vided No Fair Warning That Petitioners’
Conduct Was Proscribed. The Only Rational 
Alternative Conclusion Would Be That Peti­
tioners Were Convicted Without Any Evi­
dence of Their Guilt ........................................  10

II. The Judgment Below Does Not Rest Upon 
Adequate Non-Federal Grounds for Decision .. 23

Conclusion ................................ ......................................  29

Table of Cases and Other A uthorities

Cases:

Bailey v. Alabama, 219 U. S. 219 .................................  28
Blackburn v. Alabama, 361 U. S. 199.............................  28
Bolling v. Sharpe, 347 U. S. 497 .................................  16
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th 

Cir. 1960) ......................................................................  22



11

Boynton v. Virginia, 364 U. S. 454 ..............................  20
Brown v. Mississippi, 297 U. S. 278 ............................ 28
Buchanan v. Warley, 245 U. S. 6 0 ...............................  21

PAGE

Cantwell v. Connecticut, 310 U. S. 296 ................. 14( 22,23
Chaplinski v. New Hampshire, 315 U. S. 568 ............. 14

Connally v. General Construction Co., 269 U. S. 385 ..14,26 
Cooper v. Aaron, 358 U. S. 1 ....................................... 16,21

Elmore v. State, 15 Ga. App. 461, 83 S. E. 799 (1914) .... 12 

Faulkner v. State, 166 Ga. 645, 144 S. E. 193 (1928) .12,14

Garner v. Louisiana, 368 U. S. 157.............. 12,15,18,21,22
Gayle v. Browder, 352 U. S. 90 ...................................  20
Glasser v. United States, 315 U. S. 60 ........................  27

Hague v. C. I. O., 337 U. S. 496 ...................................  16
Henderson v. Lott, 163 Ga. 326, 136 S. E. 403 .........  25
Herndon v. Lowry, 301 U. S. 242 ...............................  13
Holmes v. City of Atlanta, 124 F. Supp. 290 (N. D. 

Ga. 1954); aff’d 223 F. 2d 93 (5th Cir. 1955), vacated
350 U. S. 879 .............................................................  22

Holmes v. City of Atlanta, 350 U. S. 879 ................  20

Kent v. Southern R. Co., 52 Ga. App. 731, 184 S. E. 
638 (1935) .....................................................................  11

Lanzetta v. New Jersey, 306 U. S. 451......... ............. 22
Lawrence v. State Tax Comm., 286 U. S. 276 ............  28

Martin v. State, 103 Ga. App. 69, 118 S. E. 2d 233 ....11,27 
Mayor and City Council of Baltimore v. Dawson, 350 

U. S. 877 20



New Orleans City Park Improvement Asso. v. Detiege,
* 358 U. S. 54.......... :......................................................... 20

Roberts v. Baker, 57 Ga. App. 733, 196 S. E. 104........... 27

Samuels v. State, 103 Ga. App. 66, 118 S. E. 2d 231
(1961) ......................................................... 11,12,13,14,27

Staub v. Baxley, 355 U. S. 313......................................... 28
Strauder v. West Virginia, 100 U. S. 303 ...................... 16

Taylor v. Georgia, 315 U. S. 2 5 ....................................... 28
Taylor v. Louisiana, 370 U. S. 154................................. 20, 21
Terre Haute I. R. Co. v. Indiana, 194 U. S. 579 ............  28
Thompson v. City of Louisville, 362 U. S. 199.............. 21, 22
Thornhill v. Alabama, 310 U. S. 8 8 ............................... 15,16

Union P. R. Co. v. Public Service Commission, 248
U. S. 67 ..........................................................................  28

United States v. Brewer, 139 U. S. 278 ...........................  26

Wieman v. Updegraff, 344 U. S. 183.............................  23
Winters v. New York, 333 U. S. 507 ............................. 12, 26

Statutes:

United States Code, Title 28, §1257(3) .......................... 1

United States Constitution, Fourteenth Amendment, 
Section 1 ........................................................................  2

Georgia Code Annotated, Section 6-1308 ........................ 25

Georgia Code Annotated, Section 24-4515 ......................  26

Georgia Code Annotated, Section 26-5301 ....2 , 3 , 7 , 8, 1 0 , 1 1 ,
12,16,17, 23, 24

Georgia Penal Code of 1816 (Ga. L. 1816) ....................  11

Georgia Penal Code of 1833, §359 .................................  11

Ill
PAGE



IV

Other Authorities:

Black’s Law Dictionary (4th ed. 1951) .......................... 27

Cobb’s Digest of the Statute Laws of Georgia (1851) .... u  

Lamar’s Compilation of the Laws of Georgia (1821) .... n
Myrdal, An American Dilemma, 618 (1944) ................  22

Note, 109 U. of Pa. L. Rev. 6 7 .......................................  19

Webster’s New International Dictionary (2d ed.) ...... 27

PAGE



In the

§upnmte Olnurt o f tlw l u t t ^
October Term, 1962 

No. 68

N a t h a n i e l  W r i g h t , et al.,
Petitioners,

—v.—

Georgia.

ON WRIT OF CERTIORARI TO TH E SUPREM E COURT OF THE  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Georgia is reported 
at 217 Ga. 453, 122 S. E. 2d 737 (1961) (R. 52).

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered on November 9, 1961 (R. 58). Rehearing was de­
nied November 21, 1961 (R. 60). The petition for certiorari 
was filed February 17, 1962, and was granted on June 25, 
1962. Jurisdiction of this Court is invoked pursuant to 
28U. S. C. §1257(3), petitioners having asserted below and 
claiming here, denial of rights, privileges, and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States.



2

Constitutional and Statutory Provisions Involved

1 . This case involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

2. This case also involves Georgia Code Annotated, 
Section 26-5301:

Unlawful Assemblies—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, 
justice, sheriff, constable, coroner, or other peace of­
ficer, shall be guilty of a misdemeanor.

Questions Presented

I.

Whether the conviction of petitioners for unlawful as­
sembly denied them due process of law under the Four­
teenth Amendment, where they were convicted on no evi­
dence of guilt, or merely because they were Negroes who 
peacefully played basketball in a municipal park custom­
arily used only by white persons, under a statute which 
was drawn in sweeping and general terms and which gave 
no warning that such conduct was prohibited.

II.
Whether the decision below asserts any adequate non- 

federal ground for limiting consideration of an aspect of 
an important constitutional right where the court below 
unjustifiably determined that such right had been aban­
doned.



3

Statement

Petitioners, six young Negro men ranging from 23 to 32 
years of age (R. 39) in Savannah, Georgia, have been 
charged and convicted of the crime of unlawful assembly, 
a misdemeanor, in violation of §26-5301, Georgia Code 
Annotated. It was charged, in an accusation signed by 
the Solicitor General of the Eastern Judicial Circuit of 
Georgia, that petitioners on January 23, 1961:

. . . did assemble at Daffin Park for the purpose of 
disturbing the public peace and refused to disburse 
(sic) on being commanded to do so by Sheriff, Con­
stable and Peace Officer, to w it: W. H. Thompson and
G.W. Hillis . . .  (R. 8 ).

Petitioners were brought before the city court of Savan­
nah, Georgia on May 18, 1961; they filed demurrers raising 
constitutional defenses which were overruled (R. 11-13); 
entered pleas of not guilty (R. 10); and were tried and 
found guilty by a jury (R. 10). The court sentenced five 
petitioners to fines of one hundred dollars or five months 
in jail (R. 10-11); the sixth petitioner, Nathaniel Wright, 
was sentenced to a fine of one hundred twenty-five dollars 
or six months in jail (R. 11).

The evidence for the State consisted of testimony by 
the two arresting officers, G. H. Thompson and G. W. Hillis, 
by another officer, Sgt. Dickerson, who arrived at the scene 
of the alleged crime after the arrest, and by Carl Hager, 
Superintendent of the Savannah Recreational Department, 
who wras not present during the incident but testified con­
cerning certain city park department policies. The defen­
dants presented no evidence.



4

At about 2:00 p.m. on January 23, 1961, police officers 
Thompson and Hillis were on duty in an automobile in 
Daffin Park, a fifty acre recreational park in Savannah 
Georgia (R. 39; 49). Officer Thompson stated:

This matter first came to my attention when this white 
lady had this conversation with us, the lady who told 
us that colored people were playing in the Basket Ball 
Court down there at Daffin Park, and that is the reason 
I went there, because some colored people were playing 
in the park. I did not ask this white lady how old 
these people were. As soon as I found out these rvere 
colored people I immediately went there (R. 40-41).

When the officers arrived at the basketball court, accord­
ing to Officer Hillis,

. . . the defendants were playing basketball. They 
were not necessarily creating any disorder, they were 
just ‘shooting at the goal’, that’s all they were doing, 
they wasn’t disturbing anything (R. 50; see also R. 41).

Petitioners were well dressed in street clothes; “some 
of them had on dress shirts, some of them had on coats— 
not a dress coat, but a jacket” (R. 39). The two officers 
approached the defendants, and both asked the defendants 
to leave the basketball court. Officer Thompson testified:

When I came up to these defendants I asked them 
to leave; I spoke to all of them as a group w'hen I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an oppor­
tunity to leave. One of the, I don’t know Avhich one 
it was, came up and asked me who gave me orders to 
come out there and by \\diat authority I came out 
there, and I told him that I didn’t need any orders to 
come out there . . .  (R. 40).



5

Officer Hillis said:
Officer Thompson told them that they would have to 
leave, he told them that at first, and they did have an 
opportunity to leave after he told them that. He asked 
them to leave, and then I asked them to leave after 
I saw they wasn’t going to stop playing, and [fol. 61] 
when I asked them to leave one of them made a sar­
castic remark, saying: “What did he say, I didn’t hear 
him”, he was trying to be sarcastic. When I told them 
to leave there was one of them who was writing with 
a pencil and looking at our badge numbers. They all 
had an opportunity to leave before I arrested them, 
plenty of time to have left, but I told them to leave, 
they wouldn’t leave and I put them under arrest 
(R. 49-50).

Officer Thompson testified further on direct that “The 
purpose of asking them to leave was to keep down trouble, 
which looked like to me might start-—there were five or six 
cars driving around the park at the time, white people” 
(R. 40).

On cross examination Officer Thompson said:

1 arrested these people for playing basketball in 
Baffin Park. One reason was because they were 
negroes. I observed the conduct of these people, when 
they were on the basketball court and they were doing 
nothing besides playing basketball, they were just nor­
mally playing basketball, and none of the children from 
the schools were there at that particular time1 (R. 41). 
(Emphasis added.)

1 The officer had testified that children from nearby schools play 
m the park “every afternoon when they get out of school . . . about 
2:30 in the afternoon, and this was around 2:00 o’clock” (R. 40).



6

On cross examination Policeman Thompson stated that 
there was a driveway about 15 yards from the basketball 
court, and that five or six cars were riding around the 
driveway, but that “I wouldn’t say that that was unusual 
traffic for that time of day” (R. 41).

Daffin Park, where these incidents took place, is a part 
of the system of playgrounds maintained by the Recrea­
tional Department of the City of Savannah under the di­
rection of Superintendent Carl Hager, who testified that 
the city parks were located in various colored and white 
neighborhoods with fourteen parks in white areas and 
seven parks in Negro areas (R. 42-44), and that “It has 
been the custom to use the parks separately for the different 
races” (R. 45). With regard to the Daffin Park area, 
Mr. Hager said, “around that area is mostly white” (R. 43).!

Neither of the arresting officers testified that petitioners 
violated any park rules. Officer Thompson said that he had 
never arrested people in Daffin Park for playing basketball 
there, and that, “I don’t have any knowledge myself if any 
certain age group is limited to any particular basketball 
court, I don’t know the rules of the City Recreational 
Department” (R. 41).

Superintendent Hager, whose office is located in Daffin 
Park, was informed of the arrests after they had been made 
and the police and defendants had left (R. 43). He was I

2 Mr. Hager did state that occasionally colored children had 
played in the Daffin Park area and that no action had been taken 
(R. 43). Officer Thompson said:

I have observed colored children playing in Daffin Park, but 
not playing basketball, but I have observed them playing and 
fishing, we had gotten previous calls that they were fishing in 
there and such, but not playing basketball (R. 42).

He said that he had not arrested those children but that he 
arrested these people, the petitioners, “because we were afraid of 
what was going to happen” (R. 42).



7

not a witness to the incident. He did testify about certain 
park rules and policies, stating that, “ . . . we have no 
objection to older people using the facilities if there are 
no younger people present or if they are not scheduled 
to be used by the younger people” (R. 44), and that, 
“Grownups could use [the basketball courts] if there was 
no other need for them” (R. 45). Officer Thompson had 
testified that at the time of the arrest “none of the children 
from the schools were there at that particular time” and 
that “it would have been at least 30 minutes before any 
children would have been in this particular area” (R. 41). 
Although the arresting officers made several comments 
about the fact that petitioners were wearing street clothes, 
asserting that they were dressed up and had on “nice 
clothes” (R. 39; 42; 48), Mr. Hager said that the Recrea­
tional Department “would probably not expect” the usual 
basketball attire—short trunks, etc.—if persons “were play­
ing in an unregulated and unsupervised program, and it 
would be consistent with our program to allow persons to 
wear ordinary clothing on the courts if they chose to do so, 
I don’t think that we would object to that” (R. 45). And, 
indeed, Officer Thompson acknowledged that:

The people who play basketball don’t usually have 
uniforms on, sometimes they do and sometimes they 
don’t.3 It is possible to play basketball in street clothes 
(R. 42).

At the close of the evidence defense counsel made an oral 
motion for acquittal, arguing that there was no evidence 
that defendants went to the park for the purpose of dis­
turbing the peace in violation of §26-5301; the court over­

3 A portion of this sentence was omitted by the printer in pre­
paring the record for this Court. See original record on file in this 
Court, pages 53-54.



8

ruled the motion (E. 14-16). The charge to the jury was 
general; it did not include any discussion of the elements 
of the defense except for a reading of the statute to the 
jury and a statement that city police officers were “peace 
officers” within the meaning of §26-5301 (R. 61-64). After 
the verdict and sentences (E. 10-1 1 ) petitioners filed iden­
tical motions for new trial, which were overruled by the 
court on July 24, 1961 (E. 17-38). The cases were con­
solidated for appeal (R. 51).

The Supreme Court of Georgia reviewed the convictions 
and affirmed, rejecting petitioners’ arguments (R. 58). The 
opinion of the Court dealt with petitioners’ constitutional 
claims in the following manner:

1) The Court refused to consider any of the grounds 
urged in the motion for new trial, asserting that the ex­
ception to the order overruling the motion for new trial 
was abandoned by petitioners’ brief in the Supreme Court 
of Georgia (R. 54). The Court asserted that the brief con­
tained “no argument, citation of authority, or statement 
that such grounds were still relied upon,” but “merely re­
ferred to the third ground by asking: ‘Did the Court com­
mit error in overruling plaintiff’s in error motion for new 
trial?’ ” (R. 54).

The motions for new trial (R. 17-38) had objected that 
the verdict was “contrary to the evidence and without 
evidence to support it” (|fl), “decidedly and strongly 
against the weight of the evidence” (TJ2 ) , and was “con­
trary to law and the principles of justice and equity" 
(Tf3). The motion had claimed a denial to the defendants 
of due process of law under the “First and Fourteenth 
Amendments” to the Constitution of the United States in 
that “the statute . . .  is so vague that the defendants were 
not put on notice as to what criminal act they had allegedly



9

committed” 014); a denial of due process under the Four­
teenth Amendment in that “said statute is unconscionably 
vague . . . nowhere in said statute does there appear 
a definition of disturbing the peace or committing any un­
lawful act” (115); and a denial of due process under the 
Fourteenth Amendment in that the law gave the “peace 
officers untrammelled and arbitrary authority to predeter­
mine the commission of the intent to commit an offense 
under said statute”, and in that the determination of for­
bidden acts was “left solely to the discretion of the said 
Peace Officer” 016).

The Supreme Court of Georgia ruled on the five conten­
tions in the demurrers. It held that paragraphs 3 and 4 
of the demurrer (R. 12), which objected that petitioners 
were arrested to enforce racial discrimination and a custom 
of racial segregation in municipally owned places of public 
recreation in violation of the equal protection and due 
process clauses of the Fourteenth Amendment, on the 
ground chat these were improper speaking demurrers 
(R. 55). The Court rejected the claims of paragraphs 1, 2, 
and 5 of the demurrer (R. 11-13), that the statute was 
unconstitutionally vague, denying petitioners’ rights under 
the due process clause of the Fourteenth Amendment, 
holding that the language of the statute was “in terms so 
lucid and unambiguous that a person of common intelli­
gence would discern its meaning and apprehend with what 
violation he was charged” (R. 57), and that the law had 
"a clear-cut standard to apprise one of what constitutes a 
criminal act and thus to guide the conduct of such officer” 
(R. 57).



10

A R G U M E N T

I.

The Petitioners W ere Denied Due Process in That 
They Were Convicted Under a Statute Too Vague and 
Indefinite to Provide an Ascertainable Standard of Guilt, 
and Which Provided No Fair W arning That Petitioners’ 
Conduct Was Proscribed. The Only Rational Alterna- 
tive Conclusion Would Be That Petitioners Were Con­
victed Without Any Evidence of Their Guilt.

The statute under which petitioners were convicted in 
this case, Section 26-5301, Code of Georgia, was held by 
the Supreme Court of Georgia to be “so lucid and un­
ambiguous that a person of common intelligence would 
discern its meaning and apprehend with what violation lie 
was charged” (R. 57). The court below discussed peti­
tioners’ argument that the law was vague only by referring 
to the common law origins of the phrase “disturbing the 
public peace,” by asserting that this phrase was a synonym 
of “breach of the peace,” and that this idea “has long been 
inherently encompassed in our law and is prevalent in the 
various jurisdictions” (R. 56). The court also said that 
the crime of unlawful assembly has common law7 origins 
(R. 56), but offered no definition of the crime as embodied 
in this statute; nor did the court say the statute v7as the 
equivalent of common law unlawful assembly. The opinion 
contained no discussion of the evidence in this case.4 The 
court did say that it had no occasion to consider the alleged 
vagueness of the statutory phrase “or committing any un­
lawful act”, because the accusation charged petitioners only

4 The trial court charge to the jury did not discuss the evidence 
or the meaning of the statute, except to state that city policemen 
were “peace officers” within the meaning of the law.



11

under the phrase concerning “disturbing the public peace” 
(K. 55).

The Georgia Supreme Court did not refer to any prior 
opinions construing Section 26-5301. Prior to this decision, 
the statute had been mentioned only two times in pub­
lished opinions.5 Kent v. Southern R. Co., 52 Ga. App. 731, 
184 S. E. 638 (1935),6 and Samuels v. State, 103 Ga. App. 
66, 118 S. E. 2d 231 (1961).7 Of these two cases, only the 
Samuels case, supra, involved a prosecution under Section 
26-5301.

In Samuels v. State, supra, three Negroes were held to 
violate Section 26-5301 in a prosecution arising from a 
completely peaceful “sit-in” at a drugstore lunch counter 
where the police, but not the owner, ordered them to leave. 
The appellate court supplied an element to convict by judi­
cially noticing that hostility to lunch counter desegregation 
might lead white persons to attack defendants, and that 
the defendants should have known this. The facts in the 
Samuels case, set out more fully in the note below, bear

5 A similar provision appeared in the Ga. Penal Code of 1816 
(Ga. L. 1816, p. 178), Lamar’s Compilation of the Laws of Georgia 
(1821), p. 592; and see Ga. Penal Code of 1833, §359, Cobb’s Digest 
of the Statute Laws of Georgia (1851), p. 810. No reported cases 
have been discovered which discuss either of these predecessors of 
§26-5301.

* K en t  v. S ou th ern  R . Co., su pra ,  was a damage suit brought by 
a picketing mill worker against a railroad for injury sustained from 
a tear-gas gun discharged by a police chief at the request of a rail­
road conductor to disperse a group of 50 strikers, including plain­
tiff, who were blocking a train from entering a mill by standing 
ou the tracks. In holding the complaint demurrable, the court said 
that plaintiff and those with him blocking the train violated §26- 
5301 and other penal laws.

7 A companion case, M a rt in  v. S ta te ,  103 Ga. App. 69, 118 S. E. 
-d 233, affirmed convictions said to be on facts similar to Sam uels ,  
SMprcr, on authority of that case, without discussion of the facts or



12

a striking similarity to Garner v. Louisiana, 368 U. S. 157; 
the same is true of the judicial notice theory argued but 
rejected in Garner, supra.8

Petitioners submit that §26-5301 is by no means clear 
and unambiguous, either in its terms or in light of the con­
struction placed upon it by the state courts. The antiquity 
of the law does nothing to add clarity to it, particularly 
since it has so rarely been mentioned in the case law.9

If the Samuels case construction of the law is accepted, 
the statute certainly affords no ascertainable standard of

8 In Sam u els  v. S ta te ,  su pra ,  it was undisputed that defendants 
were quiet, peaceable, and orderly and that they merely courteously 
requested service at a lunch counter customarily reserved for 
whites; that they were refused service because they were colored; 
that they were not asked to leave by any store employee; that a 
police officer was called and defendants were arrested for not obey­
ing his order to leave (118 S. E. 2d at 232-233). There was no evi­
dence of any threats or actual violence or disorder, but a number of 
white persons gathered as onlookers, and several witnesses opined 
“that the presence of the defendants would tend to create a dis­
turbance” ( I b id . ) .  The Georgia Court of Appeals construed §26- 
5301 to cover such orderly conduct that was not in and of itself a 
disturbance of the peace. To support this the court quoted at 
length from Corpus Juris for a definition of “breach of the peace” 
and cited two Georgia decisions holding that cursing and abusive 
language tending to incite to immediate violence is a breach of the 
peace. See, e.g., F a u lk n er  v. S ta te ,  166 Ga. 645, 144 S. E. 193 
(1928), and E lm o re  v. S ta te ,  15 Ga. App. 461, 83 S. E. 799 (1914). 
To sustain the conviction, the court held that the trial court “un­
doubtedly” judicially noticed the fact that lunch counter segrega­
tion was a custom throughout the southeast part of the United 
States; that “the vast majority of the white people in these areas” 
have such strong feelings in favor of continuance of these customs 
that “attempts to break down the custom have more frequently than 
not been met with violent and forceable resistance on the part of 
the white people” (168 S. E. 2d at 233). The court then concluded 
that defendants were bound to know that their acts “might” result 
in violent opposition by local white people, and on this basis held 
the arrests and convictions justified. (Ib id . )

9 Laws similar to the statute in W in te r s  v. N e w  Y ork ,  333 U. S. 
507, 511, were said to have “lain dormant for decades.”



13

guilt. There is no real standard for determining the ex­
istence of a “purpose to disturb the public peace.” This 
determination is left entirely in the discretion of the police, 
the courts, and the jury. When the law is construed to 
apply to peaceful and orderly conduct which may incite 
others to violence, without any required showing of threats 
or other overt manifestations of impending disorder or 
violence, the question left for the court or jury is : Whether 
under existing conditions, including the attitudes of a com­
munity majority with respect to particular peaceful and 
lawful conduct, as appraised by the court or jury from 
general knowledge not limited to the evidence, the defen­
dant should have believed that his conduct might result 
in violent opposition? This is plainly not a mere require­
ment that a defendant make a forecast based on a rule of 
reason. Rather, it is a requirement that he forecast a 
jury’s determination which in itself must be based on 
“pure speculation” as to the future conduct of others. 
Herndon v. Lowry, 301 U. S. 242, 263. If the public atti­
tudes that this determination involves were a fixed and 
static thing, the decision would be perilous enough—even 
for a scientific opinion analyst or pollster. But public atti­
tudes are not static. The subject of race relations, for one 
example, readily brings to mind cases of peaceful accept­
ance of desegregation in places where there has been ex­
pected violent opposition. Indeed, lunch counters in Savan­
nah have been desegregated notwithstanding the views 
expressed in the Samuels case, supra (New York Times, 
July 9,1961, p. 65, col. 1). Cf. footnote 8, supra.

To make the peaceful exercise of a constitutional right 
subject to a preliminary guess of this nature, under penalty 
of fine or imprisonment, is so to deter the exercise of the 
light as to practically destroy it. See Herndon v. Lowry, 
301 U. S. 242, 261-264. Just as the “current rate of per diem



14

wages in the locality” was held inherently incapable of fixa­
tion in Connally v. General Construction Co., 269 U. S. 385, 
393-395, so in this case the required judicial appraisal of 
the attitudes of an amorphous vast community majority, 
as viewed from the defendants’ point of view, provides no 
ascertainable standard for the court or jury.

If the statute is considered without the benefit of the 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and orderly 
acts or merely outwardly disorderly conduct; whether an 
actual or an imminent or merely' a foreseeable disturbance 
was required; whether violence was essential and, if so, 
whether it must be actual or merely threatened; whether 
the defendants’ “purpose” must be manifested by some 
overt act or whether it may be supplied by a jury deter­
mination, discretionary or otherwise.

It is evident that this law is not “narrowly drawn to 
define and punish specific conduct,” Cantwell v. Connecticut, 
310 U. S. 296, 311. Here, as in Cantwell (310 U. S. at 308), 
the vice of the law consists in its “sweeping in a great 
variety of conduct under a general and indefinite charac­
terization and leaving to the executive and judicial branches 
too wide a discretion in its application.”

The opinion below cites Faulkner v. State, 166 Ga. 645, 
665, 144 S. E. 193 (1928), a case holding that abusive and 
profane language was a breach of the peace. This Court 
has upheld a prohibition aimed at such direct incitements 
to violence in a law7 “narrowdy drawm to define and punish 
specific conduct.” Chaplinski v. New Hampshire, 315 U. S. 
568, 573. Insulting or fighting vmrds were said to receive 
no protection as free speech because they are “no essential 
part of any exposition of ideas and are of such slight social 
value . . . ” (315 U. S. at 572). But no comparable char­



15

acterization can be given to petitioners’ conduct, whether 
it be regarded as merely playing a basketball game, or as a 
profound non-verbal expression of the impropriety of racial 
segregation in public parks.

As stated by Mr. Justice Harlan, concurring in Garner 
v. Louisiana, 368 U. S. 157, 202:

But when a State seeks to subject to criminal sanctions 
conduct which, except for a demonstrated paramount 
state interest, would be within the range of freedom 
of expression as assured by the Fourteenth Amend­
ment, it cannot do so by means of a general and all- 
inclusive breach of the peace prohibition. It must bring 
the activity sought to be proscribed within the ambit 
of a statute or clause “narrowly drawn to define and 
punish specific conduct as constituting a clear and 
present danger to a substantial interest of the State.” 
Cantwell v. Connecticut, supra (310 U. S. at 311); 
Thornhill v. Alabama, 310 U. S. 88, 105.

As this court held in Thornhill v. Alabama, 310 U. S. 88, 
97, “a penal statute . . . which does not aim specifically at 
evils within the allowable area of state control but, on 
the contrary, sweeps within its ambit other activities that 
in ordinary circumstances constitute an exercise of free­
dom of speech or of the press” brings to bear a threat 
similar to that involved in discretionary licensing of free 
expression. That opinion said:

The existence of such a statute, which readily lends 
itself to harsh and discretionary enforcement by local 
prosecuting officials, against particular groups deemed 
to merit their displeasure, results in a continuous and 
pervasive restraint on all freedom of discussion that 
might reasonably be regarded as within its purview. 
310 U. S. at 97-98.



16

Similarly here, the existence of an indefinite unlawful 
assembly law operates to deter and restrain any attempt 
by Negro citizens to exercise constitutional rights to non- 
segregated use of public facilities. The Fourteenth Amend­
ment was primarily designed to protect the civil rights 
of Negroes. Strauder v. West Virginia, 100 U. S. 303, 307. 
Such rights cannot properly be regarded as any less pre­
ferred than the First Amendment type protections incor­
porated into the Fourteenth Amendment by the due process 
clause. The right to nonsegregated use of facilities the 
government provides is so fundamental as to be protected 
both as “liberty” under the due process clause and by the 
equal protection clause of the Amendment. Cooper v. Aaron, 
358 U. S. 1, 19; cf. Bolling v. Sharpe, 347 U. S. 497.

Hague v. C. I. 0., 307 U. S. 496, also supports the proposi­
tion that §26-5301 is unconstitutionally general and in­
definite. In Hague, supra, the right of free assembly was 
limited by a requirement that a permit be obtained from 
an official who could refuse a permit only “for the purpose 
of preventing riots, disturbances, or disorderly assemblage” 
(307 U. S. at 502, n. 1). The court held the law invalid 
on its face because, “it can thus, as the record discloses, 
be made the instrument of arbitrary suppression of free 
expression. . . . But uncontrolled official suppression of 
the privilege cannot be made a substitute for the duty to 
maintain order in connection with the exercise of the right” 
(307 U. S. at 517). And, of course, one accused under a 
general and sweeping law has no obligation to demonstrate 
that the state could not have written a different and more 
precise law constitutionally proscribing his conduct. Thorn­
hill v. Alabama, supra, at 198. Furthermore:

[I]t is the statute and not the accusation or the evi­
dence under it, which prescribes the limits of per­
missible conduct and warns against transgression.



17

Stromberg v. California, 238 U. S. 359, 368; Schneider 
v. State, 308 U. S. 147,155, 162,163. Compare Lanzetta 
v. New Jersey, 306 U. S. 451. {Ibid.)

Turning to the facts of the present case, it is equally 
apparent that §26-5301 gave no fair warning of the offense 
punished, and that it would confer unrestrained discretion 
of the exercise of constitutional freedoms.

First, there was no claim that petitioners’ conduct was, 
in itself, disorderly or offensive. The police officer testified 
to the contrary that “they were not necessarily creating 
any disorder, they were just ‘shooting at the goal,’ that is 
all they were doing. They wasn’t disturbing anything” 
(R. 50). There was no admission by the defendants of a 
purpose to disturb the public peace, and there was nothing 
in their conduct which might justify a determination that 
they had such a purpose. This is true because there was 
neither an actual disturbance of the peace, nor any evi­
dence that their conduct made such a disturbance imminent 
or even foreseeable because of its tendency to provoke a 
disorderly response from others. The only thing in the 
record touching upon the possibility that defendants’ con­
duct might have led to a breach of the peace was testimony 
by officer Thompson that:

The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there were five or six cars driving around the park at 
the time, white people (sic) (R. 40).

There was an unexplained statement that “ . . . I arrested 
these people because we were afraid of what was going to 
happen” (R. 42). But the record contains no support for 
the policeman’s fears. There was no evidence that anyone 
in the passing automobiles even observed petitioners, and



18

certainly no evidence that these passersby did or said any­
thing to indicate that they were disturbed in any way or 
were provoked or angered by petitioners’ conduct. There 
was no evidence that any of the automobiles stopped or 
approached petitioners, or that traffic was impeded. There 
is a  positive statement by the officer that this automobile 
traffic was not unusual for that time of day (R. 41).

The only other person whom the record shows to have 
observed petitioners’ conduct was the unidentified white 
lady who reported to the officers merely that colored people 
were playing basketball in the park. There was no testi­
mony by the officers that she manifested any disturbance, 
anger, or anxiety and certainly no indication that she was 
provoked to the point of creating disorder. No other per­
sons were present.10 11 School children in the nearby schools 
were not expected in the area for “at least thirty minutes” 
by the officers (R. 41).11

There is no evidence that petitioners violated any park 
rules,12 but, in any event, it appears that the arresting

_10 The plain words of the statute require something in addition to 
disobedience of the officer’s orders. If this were all that was re­
quired, the statute would nevertheless be offensively indefinite. 
G arn er  v. L ou isian a , 368 U. S. 157, 204, footnote 11 (Mr. Justice 
Harlan concurring).

11 The officers did not connect their order to leave with the an­
ticipated presence of school children, nor was their order that 
petitioners leave timed to coincide with the arrival of the children. 
There was no park rule or policy prohibiting adults from using the 
park facilities when they were not being used by the children 
(R. 46); nor were any hours posted for use of the basketball courts 
(R. 44).

12 The State has argued in its “Brief in Opposition to Certiorari” 
in this Court that petitioners were arrested because they were 
“grown men” on a “children’s playground” and were dressed in 
street clothes. (See Brief in Opposition, p. 10, second paragraph.) 
But the superintendent of the recreation department testified that 
the basketball courts could be used by adults (R. 44) (and, there­



19

officer did not know the park rules and thus could not have 
predicated his command that petitioners leave or the arrest 
upon any park rule violation.13

The arresting officer expressly acknowledged that race 
was a factor in the arrests. Officer Thompson stated th a t:

I arrested these people for playing basketball in Baffin
Park. One reason was because they were negroes (E.
41). (Emphasis added.)

This testimony, of course, must be understood as it re­
lates to the evidence that Daffin Park was one which was 
customarily used by white persons, with the occasional ex­
ception of Negro children fishing and playing—but not 
on the basketball court (R. 42), as a part of a more gen­
eral local custom “to use the parks separately for the dif­

fore, petitioners were not on a playground exclusively for chil­
dren), and also that it was not improper to wear street clothes in 
unsupervised play on the basketball courts. The witness stated that 
“if there was a conflict betwen younger people and the older people 
using the park facilities, the preference would be for the younger 
people to use them, but we have no objections to older people using 
the facilities if there are no younger people present or if they are 
not scheduled to be used by the younger people” (R. 44). The 
witness said that he would not know whether any program was 
scheduled for the time petitioners were there without referring to 
his records (R. 47).

13 See Note, 109 U. of Pa. L. Rev. 67, 81:
“It is scarcely consonant with ordered liberty that the ame­
nability of an individual to punishment should be judged solely 
upon the sum total of badness or detriment to the legitimate 
interests of the state which can be found, or inferred, from a 
backward looking appraisal of his trial record.”

And see Id . at footnote 74:
“A state could probably justify punishing most conduct 

which it desired to punish on the basis of the after-the-fact 
record, by isolating from the precisely detailed circumstances 
ot the particular defendant’s acts a sufficient quantum of 
substantive evil of legitimate legislative concern to dress up 
a tolerable constitutional crime.”



20

ferent races” (R. 45). The officer’s actions tend to confirm 
his statement that race was a reason for the arrests since 
he acknowledged that he proceeded directly to the basket­
ball court to investigate upon merely being told that “col­
ored people were playing in the Basketball Court”, and 
—insofar as the record reveals—nothing more (R. 41). 
The officer did not ask the unidentified white lady who 
gave him this information how old the people playing bas­
ketball were. As he put it, “as soon as I found out these 
were colored people I immediately went there” (R. 41).

The race of the petitioners cannot validly be made a 
basis for the determination of their guilt. The mere pres­
ence of Negroes in a facility which they customarily do 
not use, cannot be regarded as criminal conduct or as evinc­
ing a purpose to violate the law. Taylor v. Louisiana, 370 
U. S. 154. It is settled that this municipally operated 
park was an area which petitioners had a right to use, 
regardless of any segregation rule or custom, Holmes v. 
City of Atlanta, 350 U. S. 879; Mayor and City Council of 
Baltimore v. Dawson, 350 U. S. 877; New Orleans City Park 
Improvement Asso. v. Detiege, 358 U. S. 54; just as this 
was clear in Taylor v. Louisiana, supra, with respect to 
interstate transportation facilities. Cf. Gayle v. Browder, 
352 U. S. 903; Boynton v. Virginia, 364 U. S. 454, 459, 460.

There was no evidence tending to show that petitioners’ 
action in conflict with the racial custom of park segregation, 
would, in the locality involved, be likely to arouse passions 
or inflame those opposed to desegregation of publicly owned 
facilities. There is no such evidence relating either to the 
particular circumstances of this case or to any general 
community condition. Here there is not even evidence of 
“restless onlookers” which was held insufficient to sup­
port such a claim in Taylor v. Louisiana, 370 U. S. 154,155.



21

The fact that Negro children had used this very park with­
out the necessity for any official intervention (though their 
presence Avas noted by the police and park officials), fur­
ther undermines any such speculation based on judicial 
notice of local attitudes14—even if such opposition could 
be substituted for evidence at the trial, as it clearly can­
not be under the holding in Garner v. Louisiana, 368 U. S. 
157,173, 175-176.

Even beyond this lack of evidence to provide a basis for 
a permissible inference that petitioners’ conduct engen­
dered such extreme racial hostility as to incite unlawful, 
violent opposition, it is clear that this is not enough to 
justify using the state’s police powur to preserve segrega­
tion customs. Taylor v. Louisiana, 370 U. S. 154, 156, foot­
note 2; Buchanan v. Warley, 245 U. S. 60, 80, 81; Cooper 
v. Aaron, 358 U. S. 1. “For the police are supposed to be 
on the side of the Constitution, not on the side of discrimi­
nation.” Garner, supra, at 177 (Justice Douglas concur­
ring).

The only rational alternative explanation for the con­
viction, to the claim that the statute did not fairly warn 
against petitioners’ conduct, is that there was indeed no 
evidence at all to support these convictions, thus requiring 
reversal under the doctrine of Thompson v. City of Louis­
ville, 362 U. S. 199. The mere presence of Negroes on a 
customarily all-white city owned basketball court “is not, 
because it could not be” unlawful assembly. Thompson v.

14 There is, of course, no necessary consistency, even in a given 
locality in the South, between the vehemence of the attitudes of 
the white majority toward nonsegregated lunch counter service—as 
in Garner, supra—and the same group’s attitude towards an all- 
.Negro group, as here (or for that matter, even an integrated 
group) playing basketball in a city-owned facility customarily 
used by whites.



22

Louisville, 362 U. S. 199, 206, citing Lametta v. New Jersey, 
306 U. S. 451. Certainly this statute does not give clear 
warning that the presence of a Negro on a customarily white 
basketball court is punishable. It is certainly not difficult 
to draft a segregation law specifically making it unlawful 
for a Negro to use a “white” park. Cf. Holmes v. City of 
Atlanta, 124 F. Supp. 290, 291-292 (N. D. Ga. 1954); aff’d 
223 F. 2d 93 (5th Cir. 1955); vacated 350 U. S. 879. But the 
well-known invalidity of such open segregation laws has 
frequently led to the use of Aesopian language to accom­
plish the same purpose,15 or the use of catch-all laws to 
the same end. Garner v. Louisiana, 368 U. S. 157.16

Petitioners’ activity, if not a “demonstration” in the 
sense that a sit-in has become a well recognized form of 
protest (and there is nothing in the record to indicate 
whether petitioners went to Daffin Park as demonstrators 
to test segregation or merely to play basketball), was never­
theless sufficiently non-conformist to be regarded as evi­
dencing petitioners’ conviction that racial exclusion from 
a publicly owned park is improper. Such conduct within 
the area of protected liberty under the Fourteenth Amend­
ment, may not constitutionally be reached by a vague and 
indefinite law which does not evince any legislative judg­
ment that it represents so clear and present a danger that 
it should be criminally proscribed. Cantwell v. Connecticut, 
supra; Garner v. Louisiana, 368 U. S. 157, 196-207 (Mr. 
Justice Harlan concurring).

15 Compare the ordinance in B om an  v. B irm in gh am  Transit Co., 
280 F. 2d 531, 532 (5th Cir. 1960), which replaced an overt 
segregation requirement with a mandate of obedience to bus drivers’ 
orders.

16 The Swedish writer, Gunner Myrdal, noticed this in his book 
published 18 years ago saying that “ . . .  policemen in the South 
consider the racial etiquette as an extension of the law, and the 
courts recognize ‘disturbance of the peace’ as having almost un­
limited scope,” Myrdal, A n  A m erica n  D ilem m a, 618 (1944).



23

Finally, the State’s suggested construction of §26-5301 
renders it even more indefinite. The “Brief in Opposition 
to Certiorari,” p. 12, suggests that the law does not require 
criminal intent at all, saying :17

Thus it is not necessary to show whether the petitioners 
actually intended to create a breach of the peace to 
convict them.

What does “purpose” refer to if it does not refer to 
“actual intent”? If this construction of the law is correct, 
and no real criminal intent is required under §26-5301 to 
convict a person for an act admittedly not blameworthy 
per se, Georgia has denied due process. This would be an 
“indiscriminate classification of innocent with knowing ac­
tivity [which] must fall as an assertion of arbitrary power” 
and which “offends due process.” Wieman v. Updegraff, 
344 U. S. 183, 191.

n.
The Judgment Below Does Not Rest Upon Adequate 

Non-Federal Grounds for Decision.

Initially it should be emphasized that the court below 
indisputably did consider and reject petitioners’ due process 
claim under the Fourteenth Amendment. The State has 
never argued to the contrary either in its brief in opposition

17IQ connection with this the “Brief in Opposition,” p. 12, per­
haps harmlessly misquotes C a n tw e ll v. C o n n ec ticu t, 310 U. S. 296, 
309. Not so harmlessly it ignores the impact of the following 
sentence pointing out that practically all such decisions holding 
acts likely to provoke disorder to be a breach of the peace 
even though no such eventuality [disorder] be intended”, 

involved “profane, indecent or abusive remarks directed to the 
person of the hearer.”



24

to certiorari or in the court below.18 The court below con­
cluded its discussion of the due process vagueness issue 
(R. 55-58) by asserting: “However, by applying the well- 
recognized principles and applicable tests above-stated, we 
find no deprivation of the defendants’ constitutional rights 
under the Fourteenth Amendment of the United States 
Constitution” (R. 57-58).

The only potential area of dispute concerns whether this 
Court may consider the facts of petitioners’ case in decid­
ing the constitutional claim. This potential conflict does 
not arise because the court below ever said that it was pro­
hibited from looking at the facts of the case. It did not so 
state; there is only an implication that this is so because 
the opinion was written as an abstract discussion of the 
extent to which §26-5301 was indefinite without reference 
to the facts of this case, or any other case; because the 
court below ruled that it would not appraise the facts re­
lating to another and essentially different constitutional 
claim raised in the demurrer—the claim that the arrest was 
the product of discriminatory law enforcement designed to 
compel racial segregation in public parks; and because the 
court ruled that it would not consider petitioners’ claim of 
error in the overruling of the motion for new trial.

The conflict over this limited issue is indeed only “poten­
tial” for the State has never argued either in the court 
below nor in this Court that no consideration may be given 
to the facts of the record in deciding the vagueness issue. 
To the contrary, indeed, the State has consistently argued 
that petitioners’ acts were criminal under the law and that 
it gave them fair warning.19

18 Petitioners have deposited with the Clerk of this Court certified 
copies of all briefs filed in the Supreme Court of Georgia.

19 See “Brief in Opposition to Certiorari,” p a ss im ;  see also, the 
State’s “Brief of Defendant-in-Error” in the court below.



25

However, in the event that this matter is viewed by this 
Court as having any significance, petitioners present the 
following to demonstrate that in the circumstances of this 
case no significant limitation can be placed upon this Court’s 
review because of any state procedural rule.

As has been said before, petitioners’ due process vague­
ness claims were raised in both the demurrer (R. 11) and 
the motions for new trial (R. 17, et seq.). The vagueness 
objections were thus made both before and after the evi­
dence against petitioners was adduced.

The Supreme Court of Georgia ruled that it would not 
consider the motion for new trial because it read petitioners’ 
brief as abandoning the objection to the overruling of the 
motion for new trial. The opinion below acknowledged (R. 
54) that defendants’ brief did contain as one of three “Is­
sues of Law” the following: “Did the court commit error 
in overruling plaintiff’s-in-error motion for new trial?” 20 
But the court went on to find an abandonment of this claim 
asserting that “there was no argument, citation or author­
ity, or statement that such grounds were still relied upon”, 
and that the point must be treated as abandoned under the 
applicable rule laid down in Henderson v. Lott, 163 Ga. 326, 
136 S. E. 403.21

The court below thus found an implied waiver of a fed­
eral constitutional right. There was no assertion that peti­
tioners made any expressed abandonment of the claim

‘‘Brief of Plaintiff-in-Error”, in court below, p. 6 .
21 The opinion below makes no reference to Section 6-1308, Ga.

Code Ann., providing:
“6-1308. Q uestions to  be con sidered .— All questions raised 

m the motion for new trial shall be considered by the appellate 
court except where questions so raised are expressly or im­
pliedly abandoned by counsel either in the brief or upon oral 
argument. A general insistence upon all the grounds of the 
motion shall be held to be sufficient. (Acts 1921, pp. 232, 233.)”



26

either in the brief or in oral argument. However, a fair 
reading of petitioners’ brief filed in the court below does 
not support even the theory of implied abandonment. Peti­
tioners’ brief in the court below contained a portion labelled 
“Argument and Citation of Cases” which was not sub­
divided,22 and which did argue that the law was vague mak­
ing particular references to the facts in this record,23 and 
did refer to appropriate decisions of this Court.24

The Georgia Court of Appeals has held that the mere 
citation of one applicable decision of that court was suffi­

22 Nothing in the rules of the Supreme Court of Georgia requires 
any subdivision of argument among the assigned errors. Rule 14 
of the Georgia Supreme Court (printed in Section 24-4515, 6 a. 
Code Ann.) states:

“C o n ten ts  o f b r ie f  o f  p la in tiff  in  error.”—The brief of the 
plaintiff in error shall consist of two parts:

(1) Part one shall contain a succinct but accurate statement 
of such pleadings, facts, assignments of error, and such other 
parts of the bill of exceptions or the record as are essential to 
a consideration of the errors complained of.

(2) Part one shall also contain succinct and accurate state­
ments of the issues of laAV as made by the errors assigned, 
and reference to the parts of the record or bill of exceptions 
necessary for consideration thereof.

(3) Part two shall contain the argument and citation of 
authorities.

23 See “Brief of Plaintiffs in Error,” pp. 7-10. One example of 
such argument appears at p. 8 :

“Plaintiffs-in-Error could not possibly have predetermined 
from the wording of the statute that it would have punished 
as a misdemeanor an assembly for the purpose of playing 
basketball. It follows as a matter of course that if the act 
committed was not punishable, then the peace officer would not 
have the authority to command their dispersal. To be arrested 
and convicted pursuant to said statute denies to the Plaintiffs- 
in-Error due process of law as secured to them by the Four­
teenth Amendment to the United States Constitution.”

24 Decisions of this Court on vagueness issues cited in the “Brief 
of Plaintiffs in Error” were U n ited  S ta te s  v. B rew er, 139 U. S. 
278; C on n olly  v. G eneral C on stru c tion  Co., 269 U. S. 385, 393; 
W in te rs  v. N ew  Y o rk , 333 U. S. 507.



27

cient argument of an assignment of error to prevent its 
being treated as abandoned, even absent a clear statement 
that the point was relied upon. Roberts v. Baker, 57 Ga. 
App. 733, 735, 196 S. E. 104. But here there is even more, 
for the argument begins with a statement that the “princi­
pal question” was raised by the overruling of the demurrer 
(Brief of Plaintiffs in Error, p. 7), thus, plainly implying 
that this was not the only question, but merely the chief, 
foremost, or highest in importance.25

It is submitted that the basis for this holding of abandon­
ment or waiver of an aspect of a fundamental constitutional 
defense which is otherwise conceded to have been pre­
served, is so tenuous and unsupported as to compel the 
view that the court below did not exercise due regard for 
the general doctrine that every reasonable presumption is 
to be indulged against the waiver of a constitutional right. 
Cf. Glasser v. United States, 315 U. S. 60, 70.

Even beyond all this, if it be assumed arguendo that the 
procedural rules applied below must limit this Court’s con­
sideration of the petitioners’ due process vagueness claim 
to any extent, it by no means necessarily follows that this 
Court is compelled to consider the law in a completely 
sterile and abstract fashion, blinding itself to the uses to 
which this law in all its generalities can be put, and has 
been put in the only other reported application of it. 
See e.g., Samuels v. State, 103 Ga. App. 66, 118 S. E. 2d 
231 (1961); Martin v. State, 103 Ga. App. 69, 118 S. E. 2d 
233 (1961). And since even though the Court below may 
not have discussed the evidence, it did have the full record 
before it, this Court should not ignore the fact that the 
very “judgment of conviction” represents in a real sense

See definition of “principal”, adjective, in Webster’s N ew  
international D ic tio n a ry , p. 1966 (2d ed.), and Black’s L a w  D ic ­
tionary, p. 1355 (4th ed. 1951).



2 8

“a controlling construction of the statute”, Bailey v. Ala­
bama; 219 U. S. 219, 235; Taylor v. Georgia, 315 U. S. 25, 
30.

The appellees argue in the “Brief in Opposition to Cer­
tiorari” that this Court may pass upon federal issues where 
the state court has refused to entertain them only if the 
State has applied a procedural rule inconsistently. But this 
Court has found such refusals unreasonable for reasons 
other than inconsistent application. Staub v. Baxley, 355 
U. S. 313; Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 
589; Union P. R. Co. v. Public Service Commission, 248 
U. S. 67. Indeed, this Court has rejected attempts to limit 
the scope of its review on the theory that denials of due 
process must be ignored when, although they appear clearly 
from the proceedings, objections made were not renewed 
after the denial of due process became manifest. See Black­
burn v. Alabama, 361 U. S. 199, 209-210; Brown v. Missis­
sippi, 297 U. S. 278, 286-287.

Any state avoidance of federal constitutional issues 
raised by a defendant in a criminal proceeding must meet 
minimum standards of intrinsic fairness. It is submitted 
that the action of the court below in limiting consideration 
of the due process vagueness issue fails to meet such stand­
ards, and is as much a denial of due process as an er­
roneous decision on the merits. Lawrence v. State Tax 
Comm., 286 U. S. 276, 282.



29

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark 
J ames M. N abrit, I I I  

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E . H . Gadsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners











38



In t h e

gntjirm r fllmtrt nf %  llmtib §>Ut?s
October T erm, 1961 

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

Nathaniel 'Wright, Charles L. S mart, R asco W hite, 
James W. T homas, B enjam in  Carter, J udson F ord,

P e t i t io n e rs ,
—v.—

S tate of G eorgia.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

A t t o r n e y s  f o r  P e t i t io n e r s





TABLE OF CONTENTS
PAGE

Citations to Opinion Below ............................................  1

Jurisdiction ...............................................................    1

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

Constitutional and Statutory Provisions Involved....... 2

Statement ............. - ....................... ................................  2

How the Federal Questions Were Raised and Decided 
Belovy -...........................................................................  5

Eeasons for Granting the Writ ..................................... 7
A. Federal Questions Which the Court Below Un­

reasonably Refused to Decide x\re Properly 
Reviewable by This Court .................................  7

B. Petitioners Were Denied Rights Guaranteed by
the Fourteenth Amendment Because They Were 
Not Put on Notice by the Statute That the Acts 
They Participated in Were Criminal ..............  7

C. Petitioners’ Convictions Denied Due Process
of Law in That There Was No Evidence of the 
Essential Elements of the Crime Charged....... 12

Conclusion .............    13

Appendix :

Opinion in the Supreme Court of Georgia (in 
Gober Case) ...........................................................  la

Judgment ............. ............ ............................... .......  9a

Order Denying Application for Rehearing ........... 10a





T able of Cases

page

Cantwell v. Connecticut, 310 U. S. 2S6 .....................  11
Central U. Telegraph Co. v. Edwardsville, 269 U. S.

190 ................ ......................   9
Connally v. General Construction Co., 269 U. S. 385 .... 10
Detige v. New Orleans City Park Improvement Assn.,

358 U. S. 5 4 ................................................................. 11
First Nat’l Bank v. Anderson, 269 IT. S. 341.................. 7
Garner v. Louisiana, 7 L. Ed. 207 (1961) .....................  12

Hague v. Committee for Industrial Organ., 307 U. S.
496 ..............    11

Kunz v. New York, 340 U. S. 290 .................... _...... 11

Lawrence v. Mississippi, 286 U. S. 276 .........................  7
Lovell v. Georgia, 303 U. S. 444 ....................................  11

Mayor and City Council of Baltimore v. Dawson, 350 
U. S. 877 ............... ;.....................................................  11

Nash v. U. S., 229 U. S. 373 ..........    10

Saia v. New York, 334 U. S. 558 ...............................  11
Seaboard Airline Ry. v. Watson, 287 U. S. 8 6 .............. 9
Sessions v. State, 3 Ga. App. 13, 59 S. E. 196 ...........  8
Staub v. Baxley, 355 U. S. 313........................................ 9

Thompson v. City of Louisville, 326 U. S. 199..............  12
U. S. v. Clark Brewer, 139 U. S. 278 ..........   11

Winters v. New York, 333 U. S. 507 ............................. 10

S tatute

Code of Georgia, Section 26-5301 ................................  2

11

t





I n  t h e

f t u p r m r  Olxntrt ui th r llmttb S ta ll 's
October Term, 1961 

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

Nathaniel W right, Charles L. S mart, Rasco W hite, 
James W . T homas, B enjamin Carter, J udson F ord,

Petitioners,
—v.—

S tate of Georgia.

PETITION FOR A WRIT OF CERTIORARI TO THE 
SUPREME COURT OF GEORGIA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Georgia entered 
on November 9, 1961.

Cilation to Opinion Below

The opinion of the Supreme Court of Georgia is reported 
in 122 S. E. 2d 737, and is set forth in the Appendix hereto, 
infra p. la, rehearing of which was denied, November 21, 
1961.

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered on November 9, 1961 (R. 75); Appendix p. 9a, 
infra. Rehearing was denied November 21, 1961 (R. 80); 
Appendix p. 10a, infra. Jurisdiction of this Court is in­
voked pursuant to 28 U. S. C. §1257(3), petitioners having 
asserted below and claiming here, denial of rights, privi­
leges, and immunities secured by the Fourteenth Amend­
ment to the Constitution of the United States.





2

Question Presented

Whether the conviction of the petitioners for unlawful 
assembly denied to them due process of law under the 
Fourteenth Amendment where they were convicted for be­
ing Negro and peacefully playing basketball in a munic­
ipally owned park customarily reserved for white persons, 
and the criminal statute under which they were convicted 
gave no notice that this constituted the crime of unlawful 
assembly.

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth Amend­
ment to the Constitution of the United States.

2. This case also involves Code of Georgia, Section 
26-5301:

“Unlawful Assemblies—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, 
justice, sheriff, constable, coroner or other peace of­
ficer, shall be. guilty of a misdemeanor.”

Statement

Petitioners, six Negro young men, were arrested for 
“unlawful assembly”—assembling “for the purpose of dis­
turbing the public peace or committing any unlawful act 
and . . . not dispers(ing) on being commanded . . —in
the course of peacefully playing basketball in Daffin Park, 
Savannah, Georgia, a park in a “white” area (R. 56). 
“One reason [for the arrest] was because they were





3

Negroes” (R. 53). “It has been the custom to use the parks 
separately for the different races” (Ibid.). Colored chil­
dren have played in Daffin Park, but not basketball (R. 53). 
There was no basketball court, as such, in any Negro park 
area until January 23, 1960 (R. 58). An arresting officer 
testified: “the defendants were playing basketball. They 
were not necessarily creating any disorder, they were just 
‘shooting at the goal’, that’s all they were doing, they 
wasn’t disturbing anything” (R. 61).

The case first came to police “attention when this white 
lady had this conversation with us, the lady who told us 
that colored people were playing in the Basket Ball Court 
down there at Daffin Park, and that is the reason I went 
there, because some colored people were playing in the 
park. I did not ask this white lady how old these people 
were. As soon as I found out these were colored people 
I immediately went there” (R. 52). The officer “ . . . ar­
rested these people for playing basket ball in Daffin Park. 
One reason was because they were negroes” (R. 53). At 
the time “ [t]hey were doing nothing besides playing basket 
ball, they were just normally playing basket ball . . .” 
(R. 53). “Under ordinary circumstances I [the officer] 
would not arrest boys for playing basketball in a public 
park” (R. 52).

Upon arrival the police first requested petitioners to 
leave. A petitioner asked who had ordered the police to 
the park (R. 51), to which an officer replied that they 
needed no orders (Ibid.). The purpose of the police in 
asking petitioners to leave was “to keep down trouble 
which looked to me [an officer] might start—there were 
five or six cars driving around the park at the time, white 
people” (R. 52) which was, however, “ . . . not . . . unusual 
traffic for that time of day” (R. 53).





4

The Superintendent of the Recreational Department of 
Savannah testified that “we issue permits in all cases where 
we think there will be conflict, we try to regulate them” 
(R. 55), and that “if there was a conflict between the 
younger people and the older people using the park facil­
ities the preference would be for the younger people to use 
them, but we have no objections to older people using the 
facilities if there are no younger people present or if they 
are not scheduled to be used by the younger people” 
(R. 55). But “there is no regulation for playing on a Court 
when it is not in use and there is no one around” (R. 57).

The evidence demonstrated no “conflict” (R. 55), and 
that there was “no one around” (R. 57). Grownups do use 
Daffin Park at certain times and under certain conditions. 
“[G]rownups could use [the basketball courts] if there was 
no other need for them” (R. 56). “ [N]one of the children 
from the schools were there at that particular time” (R. 53).

Persons playing basketball would not have to wear any 
particular uniform if playing in an unregulated, unsuper­
vised program; it would be consistent with Park Depart­
ment policy to allow persons to wear ordinary clothing on 
the courts if they so chose (R. 56). Petitioners were well 
dressed in street clothing (R. 60).

While the Superintendent did not know whether the 
Department “had a planned program arranged for the day 
that these arrests were made, . . . normally they would 
not schedule anything for that time of the day because'of 
the schools using the totals area there . . . ” However, 
“if the schools were not there and were not using it and 
we had no program planned we certainly would not have 
been concerned about other people using it” (R. 58). In 
any event, the arrest and order to disperse were, in fact, 
not made because of some violation of the rules of the 
City Recreational Department because the arresting of-

t





5

ficer testified he didn’t “know the rules of the City Rec­
reational Department” (R. 52).

How the Federal Questions Were Raised 
and Decided Below

Prior to trial petitioners interposed a general demurrer 
in the City Court of Savannah raising four constitutional 
issues: Section 26-5301 of the Code of Georgia was so 
vague that they were not put on notice of what criminal 
act they had committed; that the statute did not sufficiently 
define disturbing the peace; and that as construed it was 
so vague as to place unlimited authority in the hands of 
police officers to arbitrarily designate acts to be held as 
criminal (R. 19-21) all in violation of the due process clause 
of the Fourteenth Amendment; and that the statute was 
applied to petitioners to enforce racial discrimination on 
governmentally owned facilities contrary to the equal pro­
tection clause of the Fourteenth Amendment to the United 
States Constitution. The trial judge overruled the demurrer 
on each and every ground (R. 21).

After the trial judge sentenced each of the petitioners, 
motion for new trial was filed (R. 26-27) in which the peti­
tioners again objected that they were not fairly and ef­
fectively warned in Section 26-5301 Code of Georgia that 
their acts were prohibited, that the statute as construed 
was a delegation of arbitrary and capricious power to peace 
officers in violation of the due process clause of the Four­
teenth Amendment.

The trial judge also overruled the motion for new trial 
on each and every ground (R. 29).

Petitioners on appeal to the Supreme Court of Georgia 
assigned as error in the bill of exceptions the overruling of 
the general demurrer and the motion for new trial (R. 1-8).





6

The Supreme Court of Georgia refused to consider the 
constitutional issues raised by objection to the overruling 
of the motion for new trial, because it deemed such ob­
jection abandoned:

“In their bill of exceptions the defendants assign 
error on the judgment sentencing each defendant 
(fourth ground) and on the denial of their motion 
for a new trial (third ground). However, in their brief 
to this court they completely omitted the fourth ground 
and merely referred to the third ground by asking: 
‘Did the court commit error in overruling plaintiff’s 
in error motion for new trial ?’ There was no argument, 
citation of authority, or statement that such grounds 
were still relied upon. Therefore, the applicable rule, 
as laid down in Henderson v. Lott, 163 Ga. 326(2) 
(136 SE 403), is: ‘Assignments of error not insisted 
upon by counsel in their briefs or otherwise will be 
treated by this court as abandoned’” (R. 70).

The general demurrer also was held to be the improper 
means to raise two contentions that the statute had been 
applied to reinforce x-acial segregation of government facil­
ities in violation of the equal protection clause of the Four­
teenth Amendment (R. 71).

Under the demurrer the court below passed upon the 
only constitutional issue it held properly preserved, and 
ruled that the statute was not so vague as to deprive the 
petitioners of any constitutional rights under the Four­
teenth Amendment:

“The United States Supreme Court has held that 
a statute is not unconscionably vague where its pro­
visions employ words with a well-settled common-law 
meaning” (R. 72).

“Here the term ‘disturbing the public peace’ is of 
generic common-law origin” (R. 72).





7

“The language of the Code section in question is 
pronounced in terms so lucid and unambiguous that 
a person of common intelligence would discern its 
meaning and apprehend with what violation he was 
charged” (R. 73).

Nor was there held to be any unconstitutional delegation 
of authority to a peace officer:

“The last contention (5) assigned, that the Code 
section confers untrammelled and arbitrary authority 
upon the arresting officer, has no merit since we have

i determined that the statute has a clear-cut standard 
to apprise one of what constitutes a criminal act and 
thus to guide the conduct of such officer” (R. 74).

The judgment was affirmed.

Reasons for Granting the Writ

A. Federal Questions Which the Court Below U nreasonably  
Refused to Decide Are P roperly  Revieivuble by This Court.

The question of whether the statute involved was so 
vague as not reasonably to apprise petitioners that their 
acts constituted an unlawful assembly in violation of the 
due process clause of the Fourteenth Amendment was 
properly before the Court below and, in affirming, the Su­
preme Court of Georgia disposed of petitioners’ conten­
tions adversely in a manner which presents them properly 
to this Court for review. Whether a Federal question was 
sufficiently and properly raised in the state court is itself 
a federal question, and this Court is not concluded by the 
view taken below. First National Bank v. Anderson, 2G9 
U. S. 341. Federal rights are denied as well by a refusal 
of a state court to decide questions as erroneous decision 
of them. Lawrence v. Mississippi, 286 U. S. 276.





8

' The question of vagueness presented by this petition 
was presented and pressed at successive stages of the litiga­
tion below, on demurrer, on motion for new trial, and mo­
tion for acquittal. While the State Supreme Court held 
that the issue as presented by demurrer was limited to 
the statute and accusations on their face, this, of course, 
cannot be alleged in connection with the motion for new 
trial which is designed to bring before the court the evi­
dence at trial. Sessions v. State, 3 Ga. App. 13, 59 S. E. 196. 
The issue as raised by the motion for new trial, however, 
was held by the court below to have been waived because 
of the manner in which the point was briefed. Petitioners, 
however, have filed here certified copies of all briefs in the 
Supreme Court of Georgia which make it clear that the 
issue of vagueness as raised by the motion for new trial 
was in fact squarely presented to the Supreme Court of 
Georgia. See Brief of Plaintiffs in Error, p. 6 (“Issues 
of Law . . .  (3) Did the Court Commit Error in Overruling 
Plaintiffs-in-Error Motion for New Trial?”). A common 
argument was submitted in support of the vagueness ob­
jection as it was raised in various stages of the case. (Id. 
at pp. 7-10). The brief was constructed in the form re­
quired by the Rules of the Georgia Supreme Court, Ga. 
Code Ann. 24-4515. While the brief commenced by stating 
“the principal question raised is whether or not the trial 
judge committed error in overruling the general demurrer,” 
this was not claimed to be the only question raised. The 
attack on vagueness as raised under the motion for new 
trial was presented in the argument with clarity and 
specificity. The evidence was discussed in plaintiff-in- 
errors brief. The brief of defendant in error, a certified 
copy of which has also been filed here, is replete with dis­
cussion of the evidence and met plaintiff-in-errors argu­
ments head on.



■



9

The essential purpose of the requirement that federal 
questions be raised in accordance with state procedure is 
to “enable the court as well as opposing counsel, readily 
to perceive what points are relied on”, Seaboard A ir Liar 
Ry. v. Watson, 287 U. S. S6. The Georgia courts, both trial 
and appellate, and opposing counsel, 'were certainly ap­
prised in due time with particularity of the petitioners’ 
constitutional objections. It is only by a most restrictive 
and unreasonably strained construction that formal “judi­
cial ignorance” can be made out. A construction of the 
state court as to the proper method of preserving federal 
questions will bind the Supreme Court “unless so unfair 
or unreasonable in its application to those asserting a 
Federal right as to obstruct it.” Central U. Telegraph Co. 
Edwardsville, 269 U. S. 190, 195. As Mr. Justice Whittaker 
stated in Staub v. Baxley, 355 IT. S. 313, 320, the finding 
of waiver of federal questions may not be based on wholly 
inadequate state grounds which would “force resort to 
an arid ritual of meaningless form.” The decision below 
would make a greater fetish of the ritual of form than was 
demanded in Staub.

B. Petitioners Were Denied Rights G uaranteed by the Fou r­
teenth Amendment Because They Were S o t  Pul on Notice 
by the Statute That the Acts They P articipated  in Were 
Criminal.

This case involves the substantial question of whether 
a state may coerce conformity to a state pattern of segrega­
tion of the races on governmentally owned and operated 
recreational facilities by construing a broad and ambiguous 
criminal statute so as to make the use of these facilities 
by Negroes on the same basis as whites, a criminal act.

A statute, and any construction of it, must meet a mini­
mum standard of prior warning of what is criminal con­
duct to avoid a charge of denial of due process of law



■



1 0

through vagueness. The applicable rule is stated in Con- 
nally v. General Construction Company, 269 U. S. 383, 391:

“The dividing line between what is lawful and un­
lawful cannot be left to conjecture. The citizen cannot 
be held to answer charges based upon penal statutes 
whose mandates are so uncertain that they will rea­
sonably admit of different constructions. A criminal 
statute cannot rest, upon an uncertain foundation. The 
crime and the element constituting it, must be so clearly 
expressed that the ordinary person can intelligently 
choose, in advance, what course it is lawful for him to 
pursue. Penal statutes prohibiting the doing of certain 
things, and providing a punishment for their violation, 
should npt admit of a double meaning that the citizen 
may act upon one conception of its requirements and 
the Courts upon another.”

Further, the standards of certainty in criminal cases 
must of necessity be higher than in those depending prima­
rily upon civil sanctions for enforcement, Winters v. New 
York, 333 U. S. 507. In the instant case, petitioners could 
not possibly have anticipated that as Negroes, peacefully 
playing basketball in a municipally owned park is a crim­
inal assembly to disturb the peace, as defined in the statute. 
The court below rejects the vagueness argument because 
the statute employs words with a well-settled common law 
meaning. However, in all of the cases cited to support 
this proposition the defendants’ acts were at least reason­
ably within the long-established meaning of the statute. 
The only question in these eases was one of degree, “the 
law is full of instances where a man’s fate depends on 
his estimating rightly, that is, as the jury subsequently 
estimates it, some matter of degree.” Nash v. U. S., 229 
U. S. 373, 377. That Negroes would be charged with a 
criminal act for participating in the same activity deemed





1 1

lawful for whites on government property is not a question 
of degree, for it is not even colorably predictable by read­
ing the statute under , which petitioners were convicted.

A statute which does not lay down recognizable standards 
against which the discretion of those who administer it may 
be measured is unconstitutional and void. Lovell v. Georgia, 
303 U. S. 444. As the Georgia Court has construed the 
statute, a police officer has unlimited power to designate 
any peaceful gathering as tending to disturb the peace. 
In this case he so chose to designate the act of Negroes 
playing basketball on a publicly owned court usually re­
served for whites. Where in fact rankly unequal admin­
istration is sanctioned under the authority of a statute, 
such statute is vague on its face or as applied for lack of 
guide lines to prevent such arbitrary enforcement. Hague 
v. Committee for Industrial Organization, 307 U. S. 496.

Petitioners had a right under the Fourteenth Amendment 
to utilize government facilities on the same basis as other 
citizens. They reasonably should have anticipated that the 
constitution would have been followed, rather than an un­
anticipated construction of Georgia law. Cf. Mayor and 
City Council of Baltimore v. Dawson, 350 U. S. 877. They 
could not have been deprived of access to any part of the 
municipal park even by a direct statute proscribing segre­
gated areas. Deliege v. Neiv Orleans City Park Improve­
ment Association, 358 U. S. 54. This court has in many 
instances held that a statute is even more amenable to an 
attack of vagueness where its construction creates a danger 
of encroachment on constitutional rights and threatens to 
deter the exercise of these rights. Saia v. New York, 334 
U. S. 558; Cantwell v; Connecticut, 310 U. S. 296; Kunz v. 
New York, 340 U. S. 290.

As was said in U. S. v. Clark Brewer, 139 U. S. 278, 
“If the language of a statute is so general and indefinite





12

as to embrace not only acts properly and legally punishable 
but others not punishable, it will be voided for uncertainty.” 
Here, the State of Georgia not only denies a constitutional 
right but attaches criminal sanctions to its exercise. This 
is accomplished through a novel construction of broad 
statute which in no wise gives prior warning that the 
recreational activities of Negroes in areas reserved for 
whites by the government are criminal acts.

C Petitioners’ Convictions Denied Due Process o f Laic in That 
There Was No Evidence o f the Essential Elem ents o f the 
Crime Charged.

The question presented below and brought to this Court, 
i.e., -whether the statute under which petitioners were con­
victed is unconstitutionally vague in that it did not apprise 
them that being Negro and playing basketball in a white 
park constituted unlawful assembly is but another way of 
presenting the constitutional objection to this conviction 
under the doctrine of Thompson v. City of Louisville, 326 
U. S. 199. In Thompson as in Garner v. Louisiana, 7 L. ed. 
207 (1961), and any other case making the due process 
objection found in those cases, one convicted of crime 
without a shred of evidence that his activities were crim­
inal under a statute always possesses a corollary con­
stitutional objection that the statute did not and could not 
put him on notice that his conduct was criminal. Thus of 
necessity the judgments below complained of in this case 
are also constitutionally faulty for other reasons—dis­
cussed in Thompsoitr—well established in the jurisprudence 
of our Constitution.

It is essential that this court grant certiorari to insure 
that its previous decisions prohibiting racially discrim­
inatory action in violation of the due process and equal 
protection clauses of the Fourteenth Amendment will not 
he indirectly undermined or subverted.

I





13

CONCLUSION

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

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

A t t o r n e y s  f o r  P e t i t io n e r s





APPENDIX

SUPREME COURT OF GEORGIA
Case No. 21430

— 67—

W eight e t a l ., 
—v.— 

T he  S tate.

Decided November 9, 1961.

By the Court:

1. A mere recital in the brief of the defendants of the 
existence of an assignment of error, without argument or 
citation of authorities in- its support, and without a state­
ment that it is insisted upon by counsel, is insufficient to 
save it from being treated as abandoned.

2. It is not error in a criminal case for the trial judge to 
refuse to direct a verdict of acquittal.

3. A demurrer which seeks to add facts not apparent 
on the face of the accusation must fail as a speaking de­
murrer.

4. A Code section utilizing terms with an established 
commqn-law meaning, and which is itself of common-law 
origin, is sufficiently definite to apprise a person of com­
mon intelligence with a standard which he may use in 
determining its command; this more than satisfies the re­
quirements of due process.



.



2a

5. An officer is not vested with arbitrary authority when 
he only makes an arrest, and it is left to judicial processes 
to ascertain if the described components of a criminal act 
are present.

Submitted October 9, 1961—Decided November 9, 1961— 
Rehearing denied November 21, 1961.

Unlawful assembly; constitutional question. Savannah 
City Court. Before Judge Alexander.

— 68—

The defendants, Nathaniel Wright, Charles L. Smart, 
Rosco (e?) White, James W. Thomas, Benjamin Carter, 
and Judson Ford, were brought to trial in the City Court 
of Savannah for violation of Code § 26-5301 which reads: 
“Unlawful assemblies.—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not dis­
perse on being commanded to do so by a judge, justice, 
sheriff, constable, coroner, or other peace officer, shall be 
guilty of a misdemeanor.” The gravamen of the offense, 
as detailed in the accusation, was: “In that the said de­
fendants did assemble at Daffin Park for the purpose of 
disturbing the public peace and refused to disburse (sic) 
on being commanded to do so by sheriff, constable, and 
peace officer, to w it: W. H. Thompson and G. W. Hillis.”

Before their arraignment and before pleading to the 
accusation, the defendants filed a general demurrer to the 
accusation, contending that for five enumerated reasons the 
Code section above cited is unconstitutional. The trial 
judge overruled the general demurrer, and evidence was 
then introduced by the State at the- conclusion of which 
counsel for the defendants made a motion to acquit. After 
the argument of counsel, in the absence of the jury, the



■



3a

trial judge denied the motion to acquit. The jury was re­
called and, after argument of counsel and the charge of the 
court, returned a verdict of guilty. Whereupon the trial 
judge sentenced each defendant to pay a fine of $100 or 
to serve five months imprisonment, with the exception of 
the defendant Wright, who was sentenced to pay a fine 
of $125 or to serve six months imprisonment.

The defendants filed a motion for new trial which was 
subsequently overruled on each and every ground. The

—6 9 -
trial judge then issued an order permitting the defendants’ 
cases to be consolidated since all the cases were predicated 
upon identical circumstances and facts, and involved the 
same defensive pleas and the same questions of law.

The defendants excepted and assign error on the overrul­
ing of their general demurrer, the refusal by the trial judge 
to direct a verdict of acquittal, the denial of their motion 
for a new trial, and on the judgment sentencing the de­
fendants. Each of these assignments of error will be 
considered in order inverse from that in which it is above 
presented.

E. H. Gadsden, B. Clarence Mayfield, for plaintiffs in 
error.

Andrew J. Ryan, Solicitor-General, Sylvan A. Gar- 
funkel, contra.

—70—
Quilliax, Justice: 1. In their bill of exceptions the de­

fendants assign error on the judgment sentencing each de­
fendant (fourth ground) and on the denial of their motion 
for a new trial (third ground). However, in their brief 
to this court they completely omitted the fourth ground 
and merely referred to the third ground by asking: “Did 
the court commit error in overruling plaintiff’s in error





4a

motion for new trial?” There was no argument, citation 
of authority, or statement that such grounds were still 
relied-upon. Therefore, the applicable rule, as laid down in 
Henderson v. Lott, 1G3 Ga. 326 (2) (136 SE 403), is: 
“Assignments of error not insisted upon by counsel in 
their briefs or otherwise will be treated by this court as 
abandoned. A mere recital in briefs of the existence of an 
assignment of error, without argument or citation of au­
thorities in its support, and without a statement that it is 
insisted upon by counsel, is insufficient to save it from be­
ing treated as abandoned.” Almand v. Pate, 143 Ga. 711 
(1) (S5 SE 909); Head v. Lee, 203 Ga. 191, 202 (45 SE 2d 
666); The B-X Corp. v. Jeter, 210 Ga. 250 (4) (78 SE 2d 
790).

2. The second ground upon which the defendants rely is 
that the trial judge erred in failing to direct a verdict of 
acquittal for the defendants at the conclusion of the State’s 
evidence. It is not error in a criminal case to refuse to 
direct a verdict of not guilty. Winford v. State, 213 Ga. 
396, 397 (99 SE 2d 120); Williams v. State, 206 Ga. 107 
(10) (55 SE 2d 589); Coleman v. State, 211 Ga. 704 (2) 
(88 SE 2d 381); Baugh v. State, 211 Ga. 863 (1) (89 SE 
2d 504).

3. The first ground in the bill of exceptions is that the 
trial judge erred in overruling their general demurrers to 
the accusation. The defendants urge five contentions as to 
why Code § 26-5301, per se and as applied, violates- rights

—71—
secured to them by the Constitutions of the United States 
and of Georgia. Contentions (3) and (4) attack the Code 
section in question as unconstitutional as applied, since 
it was used to enforce racial discrimination, and as uncon-



I



5a

stitutional in that the arrest was pursuant to the policy, 
custom, and usage of the State of Georgia, which compels 
segregation of the races.

Neither of these two contentions can be ascertained from 
an examination of the accusation. A demurrer may prop­
erly attack only those defects which appear on the face of 
the petition, indictment, or, in this case, accusation. A 
demurrer which seeks to add facts not so apparent or to 
supply extrinsic matters must fail as a speaking demurrer. 
Jackson v. State, 64 Ga. 344; Arthur v. State, 146 Ga. 827 
(92 SE 637). See also Walters v. State, 90 Ga. App. 360, 
365 (83 SE 2d 48).

4. Contentions (1) and (2) attack the Code section, on 
its face, as violative of due process of law guaranteed by 
the Fourteenth Amendment to the United States Con­
stitution and by the Georgia Constitution, arguing that 
said Code section is so vague that the defendants are not 
placed on notice as to what criminal act they have allegedly 
committed, rendering it impossible to answer the charge 
or to make legal defense, and unconscionably vague in that 
nowhere in the statute does there appear a definition of 
disturbing the public peace or committing any unlawful 
act.

Since the defendants were charged only with “disturbing 
the public peace,” the alleged vagueness of “committing 
any unlawful act” need not be considered. Chaplinsky 
v. New Hampshire, 315 U. S. 568, 572 (62 S. Ct. 766, 86 
LE 1031); Whittle v. Jones, 198 Ga. 53S, 544 (32 SE 2d 
94); Kryder v. State, 212 Ga. 272, 274 (91 SE 2d 612).

—72—
Neither does the defendants’ purported attack on the Code 
section under the Georgia Constitution raise any meritori­
ous issue. In order to raise a question as to the constitu-



.



6a

tionality of a statute, the provision of the Constitution 
alleged to have been violated must be clearly specified and 
designated, reference being made to the part, paragraph, 
or section. Clements v. Powell, 155 Ga. 27S, 2S0 (8) (166 
SE 621); Inlaw v. State, 168 Ga. 377 (1) (147 SE 881); 
Johns v. State, 180 Ga. 187, 1S8 (3) (178 SE 707); Manu­
facturers Trust Co. v. Wilby-Kincey Service Corp., 204 Ga. 
273, 274 (49 SE 2d 514); Ivrasner v. Rutledge, 204 Ga. 380, 
382 (49 SE 2d 864).

The United States Supreme Court has held that a 
statute is not unconscionably vague where its provisons 
employ words with a well-settled common-law meaning 
(Waters-Pierce Oil Co. v. Texas, 212 U. S- 86, 108-111, 29
S. Ct. 220, 53 LE 417); Nash v. United States, 229 U. S. 
373, 376-378, 33 S. Ct. 7S0, 57 LE 1232; Hygrade Pro­
vision Co. v. Sherman, 266 U. S. 497, 502, 45 S. Ct. 141, 69 
LE 402), approved in Connally v. General Const. Co., 269 
U. S. 385, 391 (46 S. Ct. 126, 70 LE 322); or is not couched 
in terms so vague that men of common intelligence must 
necessarily guess at its meaning and differ as to its ap­
plication. Whitney v. California, 274 U. S. 357, 368 (47
S. Ct. 641, 71 LE 1095); Fox v. Washington, 230 U. S. 
273, 276-278 (35 S. Ct. 383, 59 LE 573); Miller v. Strahl, 
239 U. S. 426, 434 (36 S. Ct. 147, 60 LE 364); Omaechevarria 
v. Idaho, 246 U. S. 343, 348 (38 S. Ct. 323, 62 LE 763); 
United States v. Alford, 274 U. S. 264, 267 (47 S. Ct. 591, 
71 LE 1040).

Here the term “disturbing the public peace” is of generic 
common-law origin. Faulkner v. State, 166 Ga. 645, 665 
(144 SE 193); 11 C. J. S. 817, § 1. “Disturbing the peace” 
or its synonym “breach of peace,” has long been inherently 
encompassed in our law and is prevalent in the various



.



7a

- 73-

jurisdictions. 11 C. J. S. 817 et seq., §2 et seq.; 8 Am. Jur. 
831 et seq., § 3 et seq.

Further, the crime of unlawful assembly is itself of 
common-law origin, Reg. v. Pugh (1704), 87 Eng. Reprint 
900, Rex v. Birt (1831), 172 Eng. Reprint 919, 91 C. J. S. 
495, § 1; 46 Am. Jur. 126, § 2; is described in slightly vary­
ing forms in the vast majority of jurisdictions (Annot., 71 
ALR 2d S75); and in our own State was codified in the 
Penal Code of 1816 (Ga. L. 1816, p. 178; Lamar’s Comp, 
p. 592).

“The uncertainty in a statute which will amount to a 
denial of due process of law is not the difficulty of ascer­
taining whether close cases fall within or without the 
prohibition of the statute, but whether the standard estab­
lished by the statute is so uncertain that it cannot be de­
termined with reasonable definiteness that 'any particular 
act is disapproved; and a criminal statute is sufficiently 
definite if its terms furnish a test based on knowable criteria 
which men of common intelligence who come in contact 
with the statute may use with reasonable safety in deter­
mining its command.” 163 A. L. R. 1108, Annotating Min­
nesota v. Lanesboro Produce Co., 221 Minn. 246 (21 NW 2d 
792) (citing Nash v. United States, supra, United States v. 
Wurzbach, 280 U. S. 396, 50 S. Ct. 167, 74 LE 508, and 
Collins v. Com. of Kentucky, 234 U. S. 634, 34 S. Ct. 924, 
58 LE 1510). The language of the Code section in question 
is pronounced in terms so lucid and unambiguous that a 
person of common intelligence would discern its meaning 
and apprehend with what violation he was charged. Farrar 
v. State, 187 Ga. 401 (200 SE 803); Fowler v. State, 189 
Ga. 733 (8 SE 2d 77); Watson v. State, 192 Ga. 679 (16 SE 
2d 426).



>>
'



8a

5. The last contention (5) assigned, that the Code sec-
— 74—

tion confers untrammelled and arbitrary authority upon the 
arresting officer, has no merit since we have determined 
that the statute has a clear-cut standard to apprise one 
of what constitutes a criminal act and thus to guide the 
conduct of such officer. There is no usurpation of judicial 
authority, nor the improper delegation of judicial discre­
tion, since the officer involved only makes the arrest when, 
in his discretion, he believes a crime to have been per­
petrated. The innocence or guilt, beyond a reasonable 
doubt, of the accused must still be determined by judicial 
process.

This is a case of first impression in this State, and our 
research has failed to reveal any full-bench decisions from 
other jurisdictions on the exact question of the constitution­
ality of a similar unlawful-assembly statute. Nevertheless, 
see Code v. Arkansas, 338 U. S. 343 (70 S. Ct. 172, 94 LE 
155). However, by applying the well-recognized principles 
and applicable tests above stated, we find no deprivation of 
the defendants’ constitutional rights under the Fourteenth 
Amendment of the United States Constitution.

Judgment affirmed. All the Justices concur.





9a

SUPREME COURT OF GEORGIA 
21430

A tlanta, November 9,1961

The Honorable Supreme Court met pursuant to adjourn­
ment.
The following judgment was rendered:

N athaniel W right e t  a l .,

—v.—

T he S tate.

This case came before this court upon a writ of error 
from the City Court of Savannah; and, after argument 
had, it is considered and adjudged that the judgment of 
the court below be affirmed.

All the Justices concur.

—75—





10a

—SO—
SUPREME COURT OF GEORGIA 

21430

A tlanta, November 21,1961

The Honorable Supreme Court met pursuant to adjourn­
ment.
The following order was passed:

N athaniel W eight et a l.,
— v.—

T he  S tate.

Upon consideration of the motion for a rehearing filed 
in tins case, it is ordered that it be hereby denied.



'



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM , 1961.

No. 729.

NATHANIEL W RIGHT, CHARLES L. SMART, RASCO W H ITE, 
JAMES W. THOMAS, BENJAMIN CARTER,

JUDSON FORD,
Petitioners,

vs,
_______________ S TA TE OF GEORGIA.

B R I E F
Of Respondent in Opposition to Granting of Writ of 

Certiorari to Review Judgment of Supreme 
Court of Georgia.

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON, 
Assistant Attorney General of 

P. 0. Address: Georgia,
132 State Judicial Building,

Atlanta 3, Georgia,
ANDREW  J. RYAN, JR., 

Solicitor General, Eastern Ju­
dicial Circuit of Georgia, 

SYLVAN A. GARFUNKEL, 
Assistant Solicitor General, 

Eastern Judicial Circuit of 
Georgia,

P. 0. Address: Attorneys for Respondent.
Room 305, Court House,

Chatham County,
Savannah, Georgia.

St. L o n s  L aw P bw ting  Co.. I nc., 415 N\ Eighth Street. CEntral 1-4477.





TABLE OF CASES CITED.
Page

Cantwell v. Connecticut, 310 U. S. 300, 84 L. Ed. 1213-
1220 ......................................................................................  12

Edelman v. California, 344 U. S. 357 .............................. 11
Gainer v. Louisiana, 7 Law. Ed. (2) 207, 216 .............  11
Henderson v. Lott, 163 Ga. 326 (2) (136 S. E. 403) . . .  10
Herndon v. Georgia, 295 U. S. 441 ...............................  11
Michel v. Louisiana, 350 U. S. 9 1 ...................................  11
Parker v. Illinois 333 U. S. 571 ...................................  11
Staub v. City of Baxley, 355 U. S. 313 .......................... 11
Wolfe v. North Carolina, 364 U. S. 177........................  11





IN TH E

SUPREME COURT OF THE UNITED STATES,
OCTOBER TERM , 1961.

No. 729.

NATHANIEL W RIGHT, CHARLES L. SMART, RASCO W H ITE, 
. JAMES W. THOMAS, BENJAMIN CARTER,

JUDSON FORD,
Petitioners,

VS*
STATE OF GEORGIA.

B R I E F
Of Respondent in Opposition to Granting of Writ of 

Certiorari to Review Judgment of Supreme 
Court of Georgia.

Respondent respectfully contests the statement of the 
question presented and the statement of facts as outlined 
by the petitioners. The petitioners have not given a suf­
ficiently complete resume of the record of the Brief of 
Evidence for the Court to determine the question of dis­
crimination on account of race.

We respectfully bring to the Court’s attention the testi­
mony of the Police Officer who made the arrest (R. 51): 
“ as a result of the conversation with this white lady we 
rode over to this Basket Ball Court we found around 
seven colored boys playing basket ball there on the Basket



'



__ 2 ___

Ball Court . . .  As to their dress, they were pretty well 
dressed at that time; some of them had on dress shirts, 
some of them had on coats—not a dress coat, but a jacket. 
I didn’t notice what particular type shoes they had on, 
as far as I know they didn’t have ‘tennis shoes’ on. I am 
familiar with the type of shoes that people wear when 
they play basket ball, they didn’t have that type of shoes 
on as well as I remember.

“ I think that these defendants ranged in age from 
23 to 32.

“ There is a school nearby this Basket Ball Court, 
it is located at Washington Avenue and Bee Road, I 
mean, at Washington Avenue and Waters. There is 
another school on 44th Street—there are two schools 
nearby; I believe they are both ‘grammar’ schools. 
I patrol that area and the children from these schools 
play there, they come there every day I believe, I be­
lieve they come there every afternoon when they get 
out of school, and I believe they come there during 
recess. The school, I believe, gets out about 2:30 in 
the afternoon, and this was around 2:00 o’clock.

“ When I.came up to these defendants I asked them 
to leave; I spoke to all of them as a group, when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an op­
portunity to leave. One of them, I don’t know which 
one it was, came up and asked me who gave me orders 
to come out there and by what authority I came out 
there, and T told him that I didn’t need any orders to 
come out there, I believe the one that asked me that 
is the third one there, sitting at the table in the Court 
Room here, the one there with the coat on, with the 
red button on it. The children from the schools, 
would have been out there shortly after that. The 
purpose of asking them to leave was to keep down

i





trouble, which looked like to me mi "lit start—there 
were five or six ears driving around the park at the 
time, white people. They left only after they were 
put under arrest, they were put under arrest approx­
imately 5 to 10 minutes after I told them to leave— 
Officer Hillis is the one who put them under arrest— 
we called the police cruiser and it came and we put 
them in that. It seemed like to me that they were wel­
coming the arrests, because all of them piled into the 
car, Officer Hillis’ car, at the time, and he had to stop 
them—Officer Hillis’ car did not carry any of them, 
the cruiser carried them in, they waited in the car 
until the cruiser came, all seven of them, it was seven 
of them.”

The State questioned the bona-fides of these defendants 
playing basket ball or whether they were there to try 
and create an incident. Further examination of the ar­
resting officer revealed the following ("R. 53):

“ I believe that most of them had on dress pants, 
as far as I can remember. I  have seen people playing 
basket hall, but T have never seen them come out 
dressed like that to play basket ball.”

In regard to whether these defendants were arrested 
solely because they were negroes playing in a park in a 
white area, the arresting officer testified as follows (R. 
53):

“ There have been colored children in Daffin Park, 
hut I did not arrest those children, hut I arrested 
these people because we were afraid of what was 
going to happen. Colored children have played in 
Daffin Park, and they have fished there.”

In order to develop what is the park playground policy, 
Carl Hager who identified himself as Superintendent of





— 4 —

the Recreational Department of the City of Savannah, 
was sworn and testified. Wo quote from the brief of his 
testimony (R. 54 and 55).:

“ As superintendent I am over all of the playgrounds 
in the City of Savannah, Chatham County, Georgia; 
that includes Baffin Park and all the other parks that 
have playgrounds. These playgrounds are mostly in 
neighborhood areas. There are neighborhood areas 
where colored families live, and neighborhood areas 
where white people live, we try to establish them in 
that manner, and, then, there are certain areas where 
they are mixed to a certain extent. We have a play­
ground in the Park Extension, and that is a mixed 
area for white and colored—a white section and a 
colored section—it is mostly white, but there are sev­
eral colored sections within several blocks, and they 
are much closer now than they used to be. Wells 
Park is what we call a border-area and that is a 
mixed area—one side is colored and one side is white. 
The Baffin Park area, mostly around that area is 
mostly white. It has occurred, from time to time, 
that colored children would play in the Baffin Park 
area and in the Park Extension area, but no action 
has been taken, because it is legal, it is allowed, and 
nobody has said anything about it. I am familiar 
with the Baffin Park playground area, in fact, the of­
fice of the Recreational Department is in Baffin Park. 
That basket ball court is about a block from the of­
fice. I was advised that an arrest had been made, but 
they had all gone when I was told about it and I 
did know why the arrests had been made. The play­
ground areas are basically for young children, say 15 
to 16 and under, along that age group, we give prior­
ity to the playground to the younger children over 
the grownups, it made no difference as to whether



■



0 ------

they were white or colored. Any time that we re­
quested anyone to do something and they refused wo 
would ask the police to step in, if we would ask them 

' to leave and they did not we would ask the police to 
step in. We have had reports that colored children 
have played in the Park Extension hut they were 
never arrested or told to leave.

“ We have had grown people to come out to Daffin 
Park and play soft-ball; we have soft-hall diamonds 
and also younger people play on them, but we try to 
regulate the times for playing on the diamonds so 
that there will not he a conflict between the older peo­
ple and the younger ones, and we issue permits in all 
cases where we think there will he conflict, we try to 
regulate them. We do not have the Tennis Courts 
regulated at the present time, they are now on first 
come first serve basis, but we plan to regulate these.”

On cross-examination Mr. Hager said (R. 55):

“ I testified that if there was a conflict between the 
younger people and the older people using the park 
facilities the preference would be for the younger 
people to use them, but we have no objections to older 
people using the facilities if there are no younger 
people present or if they are not scheduled to be used 
bv the younger people.”

He was also questioned as to whether they would allow 
colored citizens to play in a park in a white area. His 
answer was as follows (R. 5(5):

“ It has been the custom to use the parks separately 
for the different races. I couldn’t say whether or not 
a permit would or would not be issued to a person 
of color if that person came to the office of the Recre­
ational Department and requested a permit to play





on the courts, but I am of the opinion that it would 
have been, we have never refused one, the request 
never has been made.”

On further cross-examination he explained their rule 
in regard to age limits on basketball courts (R. 57):

“ There is no minimum or maximum age limit for 
the use of basketball courts, however, at the present 
time we have established a minimum—a maximum 
age limit of 16 years for any playground -area. Pro­
gramming is hot so readily understood by lay people, 
by age grouping is taken into consideration in pro­
gramming because we don’t want the older people 
competing with the younger people, and we don’t like 
to have them associating because we don’t think that 
a younger person should learn too much from the 
older person or vice versa, we don’t think it conducive 
to good community relations, the building of char­
acter and the proper traits for younger people, and 
I think the school systems have followed somewhat 
the same procedure in segregating them in age groups, 
such as the younger school groups, the junior highs, 
and the high schools, and it is for the same purpose 
that we regulate our programs according to age 
groups and, sometimes, sexes also, and all of this is 
in accordance with, basically, a planned program.”

On further redirect examination Mr. Hager explained 
the use of this particular playground at the particular 
time when the arrest was made (R. 57):

“ On school days these courts and the playground 
area at Daffin Park are available for only certain age 
groups and they are only used at that time of day 
by the schools in that vicinity, it is, more or less, left 
available for them, that is the way we have our rec­
reation set up.”

—  6  —

I





— i

Mr. Hager then on further redirect examination ex­
plained the pattern of arranging playground areas in 
various neighborhoods (R. b7):

“ Most of our playground areas are arranged ac­
cording to the families living in that particular area, 
playgrounds where there are white families and play­
grounds where there are colored families—most of 
them are arranged in that manner according to the 
areas. We do feel this, that the playgrounds are 
established within a distance of one mile of the people 
who are expected to use them, and .normally when 
we find that when a playground is established with 
that in mind that people who live within one mile of 
it will use it, so if we put one in a predominantly 
negro neighborhood, then, predominantly negroes 
would use it, and the same would be true for the 
whites, but, of course, we can’t always control that 
because we do not have the choice of locations where 
Ave AA’ould like to ha\'e them, and that is the reason 
Avhy some could very easily become mixed areas, such 
as Park Extension, because that is Avithin a mile of 
both Avhite and colored, and that is the reason why 
both play in that area.

“ I don’t knoAv Avhether or not avc have a planned 
program arranged for the day that these arrests Avere 
made, I Avould have to check my records. We do not 
haA-e parks in colored areas that are comparable in 
size or comparable in facilities to Daffin Park, but 
colored boys do fish in the pond at Daffin Park. The 
size of the facilities Avould be determined by the area. 
Oann Park is probably cur most complete area that 
is in a colored neighborhood, and on that Ave have 
a tennis court—and AAre use that court for basketball, 
we have sAvings, slides, soft ball field, a small practice 
field, AA’hich is also used for football, and it also has



-

■



— 8 —

a concrete spray pool, picnic table, and a few other 
odds and ends of equipment, and it has a drinking 
fountain, and things of that nature, which would make 
it about as well equipped as any playground we have 
except for size.”

The key question was then asked on recross-examination 
by defendants’ attorney (R. 58), the question being “ If 
your planned program did not have the 23rd of January 
1961 set aside for any particular activity would it have 
boon permissible to use this basketball court in Daffin Park 
in the absence of children?” The answer being as follows:

“ I can’t very well answer that question because you 
have several questions in one. First, I would like to 
say that normally we would not schedule anything for 
that time of the day because of the schools using the 
total area there and, second, I would not know whether 
we had something scheduled without referring to my 
records. Now if the schools were not there and were 
not using it and we had no prog-ram planned we cer­
tainly would not have been concerned about other 
people using it. The schools use the area during 
school hours. The Parochial School uses it during 
recess and lunch periods and also for sport, as also 
the Lutheran School, and the public schools bring 
their students out there by bus and at various times 
during school hours all day long, we never know when 
they are coming, and they use Cann Park the same 
way, I might add.

“ If it was compatible to our program we would 
grant a permit for the use of the basketball court in 
Daffin Park to anyone regardless of race, creed or 
color, however, at that time of day it would not be 
compatible to our program. If that basketball court 
was not scheduled it would be compatible with our



‘



_ _ f ) _

program for thorn to use it, and we would not mind 
them using it. If there was a permit issued there 
would be no objections as to race, creed or color.”

Officer G. W. Hillis, who was also with Officer Thompson, 
the arresting officer, at the time of the arrest, corroborated 
the statement of Officer Thompson (11. GO) as follows: '

“ I was on duty around two o’clock on the afternoon 
of the date in the vicinity of Daffin Park, here in 
Savannah, Chatham County, Georgia, at around that 
time 1 received some information from a white lady, 
as a result of that information I went with Officer 
Thompson, in a police automobile, to the basketball 
court in Daffin Park, here in Savannah, Chatham 
County, Georgia. When I arrived there I saw the 
defendants, they were playing basketball. Officer 
Thompson talked to them first, and then I talked to 
them. I asked them to leave, Officer Thompson had 
already asked them, I heard him ask them. They did 
not leave, and they did not stop playing until I told 
them they were under arrest. We called the wagon 
(cruiser). Officer Thompson told them that they would 
have to leave, he told them that at first, and they did 
have an opportunity to leave after he told them that. 
He asked them twice to leave, and then I asked them 
to leave after I saw they wasn’t going to stop playing, 
and when I asked them to leave one of them made 
a sarcastic remark, saying: ‘What did he say, I didn’t 
hear him’, he was trying to be sarcastic. When I told 
them to leave there was one of them who was writing 
with a pencil and looking at our badge numbers. They 
all had an opportunity to leave before I arrested them, 
plenty of time to have left, but I told them to leave, 
they wouldn’t leave and I put them under arrest.”





—  10 —

There was no evidence introduced by the petitioners 
that the testimony of the State’s witnesses was incorrect 
or false. The question presented to the Court by the peti­
tioners does not express a proper state of the record since 
the record shows that the defendants were not arrested 
solelv for being negroes peacefully playing basketball in a 
public park customarily reserved for white persons.

The defendants were grown men ranging in age from 23 
to 32 years of age who went upon a-playground in a public 
park during school hours, dressed in dress shirts, dress 
pants and wearing leather shoes. At this time, the place 
was reserved for and had been used and was scheduled to 
be used by graramer school children from two nearby 
schools as part of their physical education program. The 
fact that these defendants were adult negro men on a 
children’s playground in a white residential area and 
that cars were beginning to assemble all contributed to a 
fear that there would be a breach of the peace if the de­
fendants continued to use the playground.

They were requested to leave, given every opportunity 
to do so but continued to play and to all appearances 
welcomed the arrests.

The petitioners give as the first reason for granting the 
writ that the Court below unreasonably refused to decide 
Federal questions which are properly reviewable by the 
Supreme Court. The Georgia Supreme Court held that 
under their rules the assignment of error on the judgment 
sentencing each defendant and on denial of their motion 
for a new trial which are the third and fourth grounds of 
the Bill of Exceptions were abandoned under the rule 
laid down in Henderson v. I.ott, 163 Ga. 326 (2) (136 
S. E. 403) and other cases cited in their decision. The 
petitioners argue that the point was properly raised and 
briefed. It has been held many times by this Supreme

I



■



— 11 —

Court that a State Court has the power to deckle the 
proper method of preserving Federal questions and this 
determination will bind this Supreme Court. Herndon v. 
Georgia, 295 U. S. 441; Parker v. Illinois, 333 U. S. 571; 
Edelman v. California, 344 U. S. 357; Michel v. Louisiana, 
350 U. S. 91. In all of these cases this Court deferred to 
a state court’s determination of its own procedural rules.

We recognize that this Supreme Court will inquire into 
the adequacy of a decision on state procedural grounds 
to determine whether the procedural application involved 
was inconsistent with prior decided cases. We respect­
fully show that this was the question that was decided in 
Staub v. City of Baxley, 355 U. S. 313 which is cited by 
the petitioners. In that case the petitioner was able to 
show the Court that in other cases the Georgia Supreme 
Court had ruled differently in regard to the procedural 
rule that it used in the Staub case, the petition thus in­
voked a question of discrimination against Staub. In the 
recent case of Wolfe v. North Carolina, 364 U. S. 177, this 
Court again affirmed the doctrine.

Petitioners have not cited to this Court one Georgia 
case to show that the rule laid down in Henderson v. Lott, 
supra, has been inconsistently applied. We therefore feel 
that under the rules of this Court, this question has been 
finally disposed of in the Supreme Court of Georgia.

In sub-paragraph B, on reasons for granting the writ, 
petitioners state the Statute is in violation of rights 
granted by the Fourteenth Amendment on the grounds it 
was too vague to put them on notice that the acts par­
ticipated in were criminal.

In the recent case of Garner v. Louisiana, 7 Law. Ed. 
(2) 207, 216 this Supreme Court held that: “ lVe are
aware that the Louisiana Courts have final authority to 
interpret and where they see fit, to reinterpret that state’s





— 12 —

legislation.” However, in that case the Supreme Court 
of Louisiana had not finally determined the question in­
volved. That case also involved the interpretation of a 
breach of the peace statute. The Supreme Court also 
said at page 215: ‘‘We, of course are hound by a state’s 
interpretation of its own statute and will not substitute 
our judgment for that of the state’s when it becomes 
necessary to analyze the evidence for the purpose of de­
termining whether that evidence supports the findings of 
a state court.”

To be guilty of violation of the Georgia Statute, three 
things are necessary: (1) There must be two or more per­
sons assembled; (2) the purpose must be for disturbing 
the public peace or committing any unlawful act; (3) they 
shall not disperse on being commanded to do so by a 
Judge, peace officer, etc.

This Supreme Court has also held in Cantwell v. Con­
necticut, 310 U. S. 300, 84 L. Ed. 1213-1220 that:

“ One may be guilty of the common law offense of 
breach of the peace if he commits acts or makes state­
ments likely to provoke violence and disturbance of 
good order, even though no such eventuality be in­
tended. ’ ’

Thus it is not necessary to show whether the petitioners 
actually intended to create a threat of the breach of the 
peace to convict them. But it was necessary for the prose­
cution to show that more than one person was involved; 
that there was a threatened breach of the peace or an 
assembly for the commission of any unlawful act, and 
that they refused to disperse upon being requested to do 
so by the police officer. To make this act criminal under 
the Georgia Statute, all three of these facts must be pres­
ent. The fact that they shall be given the opportunity to



■



14 —

able explanation why such rules have been promulgated, 
can be enforced against these defendants in the same man­
ner as they could have been enforced against any other 
adults who may have come upon the playground at the 
same time of day and refused to leave when requested to 
do so by police officers.

We respectfully, request that the writ of certiorari be 
denied.

Respectfully submitted,

EUGENE COOK,.
Attorney General of Georgia,

P. 0. Address:

G. HUGHEL HARRISON, 
Assistant Attorney General of 

Georgia,

132 State Judicial Building, 
Atlanta 3, Georgia,

ANDREW J. RYAN, JR,, 
Solicitor General, Eastern Ju ­

dicial Circuit of Georgia,

SYLVAN A. GARFUNKEL, 
Assistant Solicitor General, 

Eastern Judicial Circuit of 
Georgia,

Attorneys for Respondent.
P. 0. Address:

Room 305 Court House, 
Chatham County, 

Savannah, Georgia.



.



I n  t h e

&aprrmr Court of tljr Unttrfr Stairs
October Term, 1961 

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

Nathaniel W eight, Chables L. S mart, R asco W hite, 
J ames W. T homas, B enjam in  Carter, J udson F ord,

Petitioners,

S tate oe Georgia,
Respondent.

REPLY TO BRIEF IN OPPOSITION TO PETITION 
FOR WRIT OF CERTIORARI

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners





I n  t h e

£>uprme (Hour! 0 ! tljp Untteft S ta te s
October Term, 1961 

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

Nathaniel W eight, Charles L. S mart, R asco W hite, 
J ames W. T homas, B enjam in  Carter, J udson F ord,

Petitioners,
—v.—

S tate oe Georgia,
Respondent.

on petition for a writ of certiorari to the

SUPREM E COURT OF GEORGIA

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

Petitioners have received respondent’s Brief in Opposi­
tion to the Petition for Writ of Certiorari filed in this case 
and hereby reply pursuant to Rule 24(4) of the Rules of 
this Court.

I.
Mode of Raising Constitutional Questions

Respondent argues that where a state court has declined 
to pass upon a constitutional question for alleged failure 
to raise the question properly this Court may pass upon 
it only where the state has applied the procedural rule in­
consistently. But this Court has in many instances found 
such refusal unreasonable for reasons other than incon­



2

sistent application. Terre Haute I. R. Co. v. Indiana, 194 
U. S. 579, 589; Union P. R. Co. v. Public Service Commis­
sion, 248 U. S. 67 and Staub v. Baxley, 355 U. S. 313.

As in Staub, the mode of avoiding the constitutional 
question here presented also fails to meet a bare minimum 
of intrinsic fairness and reasonableness. This Court never 
has been precluded from examining the particular appli­
cation of a state procedural rule to assure that it is not 
in essence an evasion of the federal questions on frivolous 
grounds. Rogers v. Alabama, 192 U. S. 226, 230 and Van 
Dalia R. R. Co. v. Indiana, ex rel. South Bend, 207 U. S. 
359, 367.

Statement of the Facts

Despite State efforts to characterize the arrests as having 
nothing to do with the race of the petitioners, the fact 
remains that the arresting officer testified “one reason [for 
the arrest] was because they were Negroes” (R. 53). More­
over, respondent also concedes squarely in its brief the 
very fact it claims was not made out by the record, that 
the race of petitioners was the material factor in the arrest:

The fact that these defendants were adult Negro men 
on a children’s playground in a white residential area 
and that cars were beginning to assemble all contrib­
uted to a fear that there would be a breach of the 
peace if the defendants continued to use the play­
ground. (Brief in Opposition, p. 10.)

The fact that it is a crime in Georgia for Negroes to 
play on a white basketball court, although the statute gives 
no fair warning thereof, is what—in this context—renders 
the law vague. Petitioners were not warned in any manner 
of potential differential treatment solely because of race.



3

Respondent alleges another cause for the arrests: that 
petitioners violated the Recreational Department’s rules. 
This allegation distorts the record. The arresting officer 
did not “know the rules of the city’s recreational depart­
ment” (R. 52). He came to the basketball court solely be­
cause he was told by a “white lady” that some “colored 
people were playing in the basketball court” (R. 52). He 
had no information at that point that any infraction of 
playground rules was occurring (R. 52) nor did he testify 
that he saw any such infraction upon arriving at the scene.

Respondent states that the testimony of the superin­
tendent of the recreational department shows that peti­
tioners were arrested because they were “grown men” on a 
“children’s playground” and were dressed in street clothes.1 
This witness’s testimony is to the contrary. He testified 
that under the rules of the Recreation Department the 
basketball courts could be used by adults (R. 56) (and, 
therefore, the petitioners were not on a playground exclu­
sively for children), and that it would not be improper to 
wear street clothes in unsupervised play (R. 56). He fur­
ther testified that although the school used the area during 
school days, the courts could be used by anyone if children 
were not actually there (R. 58). The arrests were made at 
2:00 in the afternoon when the children were not present 
but were in school (R. 53). Mr. Hager’s general comments 
that the Recreation Department might employ a non­
discrimination policy could not change the character of the 
arrests as attempts to enforce segregation because his office 
had intervened in no way (He learned of the arrests after 
they had been made [R. 54]), and the arresting officer was 
not aware of the Recreation Department’s rules (R. 52).

1 Respondent’s brief, p. 10, 2nd paragraph and see p. 13, 2nd 
paragraph.



4

Even if the respondent had been able to establish that 
the one ground for the arrests was violation of playground 
rules, this could not sustain the judgment below in the face 
of clear rulings by this Court for one basis of the convic­
tion was race. And as stated in Williams v. North Carolina, 
317 U. S. 287, 292, “ [I]f one of the grounds for conviction 
is invalid under the Federal Constitution, the conviction 
would not be sustained.”

CONCLUSION

W herefore, for  the foregoing reasons, it is respectfully 
subm itted that the petition for w rit o f certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners





38



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM , 1962.

No. 68.

NATHANIEL W RIGHT, et al., 
Petitioners,

VS*
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia,

P. 0. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia,

ANDREW J. RYAN, JR.,
Solicitor General, Eastern Judicial 

Circuit of Georgia,
SYLVAN A. GARFUNKEL,

Assistant Solicitor General,
Eastern Judicial Circuit of Georgia, 

Attorneys for Respondent.
P. 0. Address:

Room 305 Court House,
Chatham County,

Savannah, Georgia.

S t . L o u i s  L a w  P r i n t i n g  C o ., I n c ., 415 N. Eighth Street. CEntral 1-4477.





INDEX.

Page
Questions presented .............................................................  1

Statement ................................................................................ -

Argument I ...........................................................................  7
Petitioners argue that the statute under which they 

were convicted was too vague and indefinite to 
provide an ascertainable standard of grnilt...........  7

Argument I I ..................................................................... 14
Petitioners further argue that the judgment below 

does not rest upon adequate non-federal grounds 
for decision .....................................................................  14

Conclusion .......................................................................  18

Cases Cited.
Chaplinsky v. New Hampshire, 315 U. S. 568, 86 L. ed.

1031 ..............................................................................................  9

Edelman v. California, 344 U. S. 357.............................  17
Fox v. The State of Washington, 236 U. S. 273, 59 L. 

ed. 573 (1914) ..............................................................  9

Garner v. Louisiana, 368 U. S. 157, 7 L. Ed. (2) 207.. .8,11 
Glasser v. United States, 315 IT. S. 60, 70..................... 15

Henderson v. Lott, 163 Ga. 326 (136 S. E. 403) .........  15
Herdon v. Georgia, 295 U. S. 441.................................... 17

Lawrence et. al. v. State Tax Commission of Missis­
sippi, 286 U. S. 276......................................................  17

Michel v. Louisiana, 350 U. S. 91.................................. 17



II

National Labor Relations Board v. Fansteel Metal 
Corporation, 306 U. S. 240, 83 L. ed. 627.................  11

Parker v. Illinois, 333 U. S. 5^1..................................  17
People v. Galpern, 259 N. Y. 279, 181 N. E. 572.......... 9,13
Samuels v. State, 103 Ga. Appeals 66, 118 S. E. 2nd

231 (1961) .................................................................... 7
Staub v. City of Baxley, 355 IT. S. 313.................. 15,16,17
Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 589. .16,17 
Union P. R. Co. v. Public Service Commission, 248 

U. S. 67.........................................................................  16



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1962.

No. 68.

NATHANIEL W RIGHT, et al., 
Petitioners,

vs.
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

QUESTIONS PRESENTED.

I.

Whether the conviction of petitioners for unlawful as­
sembly denied them due process of law under the Four­
teenth Amendment, when they were convicted on evidence 
which showed that they were grown Negro men who took 
over a playground in a predominantly white neighbor­
hood at a time when the playground was reserved for 
and was to be used by school children and they refused 
to leave when requested by the police.

n.
Whether the decision below asserts any adequate non- 

federal grounds for limiting consideration of an aspect 
of an important constitutional right where the court 
below determined that such right had been abandoned.



STATEMENT.

Petitioners were convicted of violating Section 26-5301, 
Georgia Code Annotated in that they did assemble in the 
County of Chatham on January 23, 1961 at Daffin Park 
for the purpose of disturbing the public peace and refus­
ing to disburse (sic) on being commanded to do so by 
Sheriff, Constable and Peace Officer, to w it: W. H. Thomp­
son and G. W. Hillis . . . (R. 8).

The State of Georgia introduced four witnesses, the first 
witness, Officer G. H. Thompson stated:

When we arrived at this Basket Ball Court we 
found around seven colored hoys playing basket ball 
there . . . (R. 39).

They were pretty well dressed at that time; some 
of them had on dress shirts, some of them had on 
coats—not a dress coat, but a jacket. I didn’t notice 
what particular type shoes they had on, as far as I 
know they didn’t have “ Tennis shoes” on. I am 
familiar with the type of shoes that people wear 
when they play basket hall, they didn’t have that 
type of shoes on as well as I remember . . . (R. 39).

I think that these defendants ranged in age from 
23 to 32 . . . (R. 39).

There is a school nearby this Basket Ball Court, it 
is located at Washington Avenue and Bee Road, 1 
mean, at Washington Avenue and Waters. There is 
another school on 44th Street—there are two schools 
nearby; T believe that they are both “ grammar” 
schools. I  patrol that area and the children from 
these schools play there, they come there every day 
I believe, I  believe they come there every afternoon 
when they get out of school, and I believe they come 
there during recess. The school, I believe, gets out 
about 2:30 in the afternoon, and this was around 2:00 
o’clock . . . (R. 40).



3  —

When I came up to these defendants I asked them 
to leave; I spoke to all of them as a group when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an op­
portunity to leave. One of them, I don’t know which 
one it was, came up and asked me who gave me orders 
to come out there and by what authority I came 
out there, and I told him that I didn’t need any 
orders to come out there. The children from the 
schools, would have been out there shortly after that. 
The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there were five or six cars driving around the park 
at the time, white people. They left only after they 
were put under arrest, they were put under arrest ap­
proximately 5 to 10 minutes after I told them to 
leave. It seemed like to me that they wei’e welcom­
ing the arrests, because all of them piled into the 
car, Officer Hillis’s car, at the time, and he bad to 
stop them . . . (R. 40).

On cross-examination Officer Thompson further testi­
fied:

Under ordinary circumstances I would not arrest 
boys for playing basketball in a public park. I have 
never made previous arrests in Daffin Park because 
people played basketball there . . . (R. 41).

On indirect he stated:
There have been colored children in Daffin Park, 

but I did not arrest those children, but I arrested 
these people because we were afraid of what was 
going to happen. Colored children have played in 
Daffin Park, and they have fished there . . . (R. 42).

The next witness the State put up was Carl Hager, 
Superintendent of the Recreational Department of the 
City of Savannah. He stated:



—  4  —

As Superintendent I am over all of the playgrounds 
in the City of Savannah, Chatham County, Georgia; 
that includes Daffin Park and all the other parks that 
have playgrounds. These playgrounds are mostly in 
neighborhood areas. There are neighborhood areas 
where colored families live, and neighborhood areas 
where white people live, we try to establish them in 
that manner, and, then there are certain areas where 
they are mixed to a certain extent. We have a play­
ground in the Park Extension, and that is a mixed 
area for white and colored—a white section and a 
colored section—it is mostly white, but there are 
several colored sections within several blocks. The 
Daffin Park area, mostly around that area is mostly 
white. It has occurred, from time to time, that colored 
children would play in the Daffin Park area and in 
the Park Extension area, but no action had been 
taken, because it is legal, it is allowed, and nobody 
has said anything about it. The playground areas 
are basically for young children, say 15 to 16 and 
under, along that age group, we give priority to the 
playground to the younger children over the grown­
ups, it made no difference as to whether they were 
white or colored. Anytime that we requested anyone 
to do something and they refused we would ask the 
police to stop in, if we would ask them to leave and 
they did not we would ask the police to step in. We 
have had reports that colored children have played 
in the Park Extension, but they were never arrested 
or told to leave . . . (R. 42-43).

On cross-examination, Mr. Hager stated in answer to 
questions:

I testified that if there was a conflict between the 
younger people and the older people using the park 
facilities the preference would be for the younger



people to use them, but we have no objection to older 
people using the facilities if there are no younger 
people present or if they are not scheduled to be used 
by the younger people . . . (R. 44).

It has been the custom to use the parks separately 
for the different races. I couldn’t say whether or not 
a permit would or would not be issued to a person 
of color if that person came to the office the Recre­
ational Department and requested a permit to play 
on the courts, but I am of the opinion that it would 
have been, we have never refused one, the request 
never has been made . . . (R. 45).

There is no minimum or maximum age limit for the 
use of basket ball courts, however, at the present time 
we have established a minimum—a maximum age 
limit of 16 years for any playground area.

On redirect Mr. Hager further explained:

On school days these courts and the playground 
area at Daffin Park are available for only certain age 
groups and they are only used at that time of day 
by the schools in that vicinity, it is, more or less, 
left available for them, that is the way we have our 
recreation setup . . . (R. 46).

I would like to say that normally we would not 
schedule anything for that time of the day because 
of the schools using the total area there. The schools 
use the area during school hours. The Parochial 
School uses it during recess and lunch periods and 
also for sport, as also the Lutheran School, and the 
public schools bring their students out there by bus 
and at various times during school hours all day 
long, we never know when they are coming, and they 
use Cann Park the same way, I might add . . . (R. 47).

If it was compatible to our program we would 
grant a permit for the use of the basketball court in



—  6 —

Baffin Park to anyone regardless of race, creed or 
color, however, at that time of day it would not be 
compatible to our program . . . (R. 47-48).

Officer Hillis, the next witness for the State, stated as 
follows:

My name is G. W. Hillis. I am a police officer 
of the Savannah Police Department, and I was a 
member of and on duty with the Savannah Police 
Department on or about the 23rd day of January of 
this year; I was on duty then and I had on my police 
uniform. When I arrived there I saw the defend­
ants, they were playing basketball. Officer Thompson 
talked to them first, and then I talked to them. I asked 
them to leave, Officer Thompson had already asked 
them, I heard him ask them. They did not leave, and 
they did not stop playing until I told them they were 
under arrest. We called the wagon (cruiser). Officer 
Thompson told them that they would have to leave, he 
told them that at first, and they did have an oppor­
tunity to leave after he told them that. He asked 
them to leave, and then I asked them to leave after 
I saw they wasn’t going to stop playing, and when I 
asked them to leave one of them made a sarcastic 
remark, saying: “ What did he say, I didn’t hear 
him’’, he was trying to be sarcastic. When I told 
them to leave there was one of them who was writing 
with a pencil and looking at our badge numbers. 
They all had an opportunity to leave before I arrested 
them, plenty of time to have left, but I told them to 
leave, they wouldn’t leave and I put them under arrest 
. . . (R, 49-50).

I am familiar with the fact that there are schools 
in that area, and that children would be out there 
in about 15 minutes to play in that area . . . (H. 50).



ARGUMENT I.

Petitioners Argue That the Statute Under Which They
Were Convicted Was Too Vague and Indefinite to 

Provide an Ascertainable Standard of Guilt.

In their argument on this point, Petitioners seek to lead 
the court to believe that this statute is a statute that has 
rarely been used and they base this on the fact that there 
is a paucity of appellate decisions involving its construc­
tion. As pointed out in the opinion of the Georgia Su­
preme Court (R. page 52 at page 56) the crime of un­
lawful assembly is itself of common law origin.

To determine whether breach of the peace statutes are 
seldom used, I refer the court to the Uniform Crime Re­
ports of 1961 printed by the United States Department of 
Justice which on page 30 carries Breach of the Peace as 
disorderly conduct in their records. On page 93 the chart 
shows that there were 468,071 arrests for disorderly con­
duct (Breach of the Peace) made in the United States dur­
ing 1961. Other than the amount of people arrested fob 
drunkenness this was by far the most common charge 
placed against individuals. As to whether such a charge 
was too vague and indefinite to warrant a conviction, 
page 86 of the report shows that there were 62.6% find­
ings of guilty against all people arrested for disorderly 
conduct and 15.4% acquittals or dismissals. What is 
most probably true is that due to the antiquity of the 
crime “ Breach of the Peace” , it has rarely been chal­
lenged in the Appellate Courts.

In their brief petitioners refer to the case of Samuels V. 
State, 103 Ga. Appeals 66, 118 S. E. 2nd 231 (1961), as 
being the only Georgia case in which there has been a 
construction of this statute. In giving the court the facts 
in the Samuels case in order to try and place it within



—  8  —

the bounds of Garner v. Louisiana, 368 U. S. 157, 7 L. Ed. 
(2) 207, Petitioners left out what was said on page 6(i 
which came after the fact was shown that they had sat 
down at the lunch counter that had been customarily re­
served for white people only. “ The personnel of the 
store informed the defendants that the lunch counter was 
closed, the lights over the counter were extinguished and 
the defendants were refused service. This action was 
taken because they were Negroes.’’ In their opinion the. 
court said (page 66), “ Several witnesses testified that in 
their opinion the presence of the defendants at the lunch 
counter would tend to create a disturbance.” A reading 
of the record in the Georgia Court of Appeals (Transcript 
of Record, page 19) showed that the witnesses referred to 
were the employees of the store, one of whom was a Mr. 
Tyson, who stated, “ We had closed the counter and were 
no longer serving at that lunch counter. Ordinarily we 
would not have closed it up at that time of day. It would 
have remained opened normally until 10:00 that night and 
it was a result of the defendants being at the counter that 
we closed it.” It was this witness’s opinion that the de­
fendants were creating a disturbance. Mr. Kline, the 
Manager, also stated that he wanted to keep the counter 
closed as long as there was any disturbance and he con­
sidered this a disturbance (Ga. Court of Appeals, Tran­
script of Record, page 20).

It is significant that Samuels was represented by the 
same attorneys who represent the Petitioners in this ac­
tion and that they did not make any suggestion that the 
statute was unconstitutional.

As the respondent understands the argument of the 
petitioners, they are not arguing that the statute was un­
constitutionally applied to them but that the statute itself 
is unconstitutional as being too vague and indefinite.



We, therefore, cite to the court the case of Chaplinsky 
v. New Hampshire, 315 U. S. 568, 86 L. ed. 1031, which 
involved a statute whose stated purpose was to preserve 
the public peace. The court on page 573 stated “ The 
statute, as construed, does no more than prohibit the face 
to face words plainly likely to cause a breach of the peace 
bv the addressee.” The Petitioner in that case was claim­
ing that the statute was limiting his freedom of speech. 
This court held that such a statute was not so vague and 
indefinite as to contravene the Fourteenth Amendment.

The case of Fox v. The State of Washington, 236 U. S.
273, 59 L. ed. 573 (1914), involved a violation of a Breach 
of the Peace statute. The highest court in the state of 
Washington held that the statute was not bad for uncer­
tainty. This court, page 277, said, “ We understand the 
State Court by implication, at least, to have read the 
statute as confined to encouraging an actual breach of 
law. Therefore, the argument that this act is both an 
unjustifiable restriction of liberty and too vague for a 
criminal law must fail.”

We cite to the court a decision of the Court of Appeals 
of New York, People v. Galpern, 259 N. Y. 279, 181 N. E. 
572, in which that court held: “ The record shows that 
the arrest arose out of a dispute, conducted on each side 
quietly and without disorder, between a citizen, in this 
case a member of the bar, who asserted a right to stand 
upon the sidewalk of a street in quiet orderly conversation 
with a group of friends, and a police officer, who asserted 
a right to direct, those who use the sidewalk to ‘move on' 
when in his opinion they were obstructing the sidewalk.” 
The defendant was convicted of a Breach of the Peace for 
failing to move on. The question involved is very much 
similar to the question involved here. On page 573 the 
court held “ Even if we should find that the police officer’s 
interference was unnecessary, and, in the circumstances,

—  9 —



10 —

ill-advised, we could not find that it was unauthorized. 
The defendant, knowing the character and standing of 
his group of friends and that they would not willingly 
annoy or offend others, might conclude that the inter­
ference was officious; the police officer without such knowl­
edge might conclude that it was a useful precaution to 
avoid possible disturbance. The law authorized the officer 
to use his judgment. Friends may congregate on the 
sidewalk in an orderly group for a short conversation, 
without creating disorder or unduly offending or obstruct­
ing others, but they must ‘move on’ when a police officer 
so directs for the purpose of avoiding possible disorder 
which otherwise might ensue. The Legislature has pro­
vided that failure to obey such direction in itself is dis­
orderly conduct. That provision tends to preserve public- 
order on the streets of a great city.”

Petitioners’ brief argues that the determination of a 
purpose to disturb the public peace is left entirely7 to the 
discretion of the police, the courts and the jury (Brief of 
Petitioner, page 13). The question is now asked Peti­
tioners: To whom would they suggest such a question 
should be left if not to the police, the courts and the jury! 
There are many cases where a jury and the courts must 
determine questions of this character as, for instance, 
“ intent” and “ malice” .

The Petitioners in their brief, page 14, further state, 
“ If the statute is considered without the benefit of the 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and 
orderly acts or merely outwardly disorderly conduct." 
This statement answers itself in that the petitioners recog­
nize that the Samuels case had previously been decided 
and had construed the act so that they are unable to state 
that they7 were not aware of its construction.



11 —

This court lias again recently held in the case of Garner 
v. Louisiana, 368 U. S. 157, 7 L. ed. (2) 207, at 216, “ Wo 
are aware that the Louisiana courts have the final au­
thority to interpret and where they see fit, to reinterpret 
that state’s legislation.’’ That case also involved the in­
terpretation of a breach of the peace statute. This court 
on page 215 said, “ We, of course, are bound by a state’s 
interpretation of its own statute and will not substitute 
our judgment for that of the state’s when it becomes 
necessary to analyze the evidence for the purpose of 
determining whether that evidence supports the findings 
of a state court.’’

The Petitioners have widened their argument from that 
stated in its original heading to the further point that 
the petitioners say that they were arrested solely because 
they were Negroes. During the trial of the case and on 
appeal below, petitioners consistently argued that they had 
gone there merely to play basket ball; whereas, the State 
of Georgia attacked the bona tides of this statement. At 
last on page 15 of Petitioners’ Brief they admit that it 
may be regarded as “ a profound, nonverbal expression 
of the impropriety of racial segregation in public parks” . 
They then argue that this demonstration was within the 
range of freedom of speech as assured by the Fourteenth 
Amendment.

Surely •taking over the playground does more than ex­
press their views and is similar to the sit-down strikes. 
The reasoning employed hv the court in National Labor 
Relations Board v. Fansteel Metal Corporation, 306 IT. S. 
240, 83 L. ed. 627, expresses the feeling that is applicable 
to this case. At page 253 this Court said, “ The em­
ployees had the right to strike but they had no license to 
commit acts of violence or to seize their employer’s 
plant.”



—  12

The State of Georgia is not denying the right of Peti- 
tioners to play upon public playgrounds. There is no 
evidence to support a finding that if the children weren’t 
assigned the playground, the Petitioners could not have 
played. What Petitioners want this court to do is to over­
look any and all other evidence in this case except that 
they were Negroes and that they were arrested.

There is no evidence to support such a statement as a 
“ white basket ball court” . That would mean a basket 
ball court reserved exclusively for whites. What the 
testimony does show (R. page 44) is that there are play­
grounds in white areas and playgrounds in colored areas 
(R. page 44). Mr. Hager, Superintendent of the Recrea­
tional Department, testified that they tried to establish 
them in that manner, that there are two playgrounds that 
are in mixed areas. One of them being in Park Exten­
sion and the other in Wells Park (R. page 42). Mr. 
Hager further testified, “ It has occurred, from time to 
time, that colored children would play in the Daffin Park 
area and in the Park Extension area, but no action had 
been taken because it is legal, it is allowed, and nobody 
has said anything about i t ” (emphasis ours) (R. page 43).

Officer Hillis stated, “ There have been colored children 
in Daffin Park, but I did not arrest those children, but I 
arrested these people because we were afraid of what 
was going to happen. Colored children have played in 
Daffin Park and they have fished there” (R. page 42).

The Petitioners on cross-examination sought to develop 
that one of the reasons the Petitioners were arrested was 
because they were Negroes. This fact, in the policeman's 
eyes, added an additional reason for asking the Petition­
ers to leave since they had taken over the childrens’ 
playground in an area surrounded by whites and there



1 3  —

was, therefore, more cause to recognize a possible dis­
turbance. The Petitioners themselves now admit that 
maybe they weren’t there to play basket ball but that 
they were there to put on what they called a demonstra­
tion.

The fault in the Petitioner’s reasoning is that they have 
not shown that the park was segregated but the state on 
its own volition went out of its way to show that it was 
not segregated, as witnessed by the testimony of Mr. 
Hager, the Superintendent of Playgrounds. In trying to 
demonstrate their right to play, the Petitioners took away 
the rights of those for whom the playground had been set 
aside at that time.

The Petitioners have not shown that the exclusion of 
adults from the playground during these hours was an 
unreasonable exercise of discretion by the playground 
authorities. Petitioners by their precipitate action which 
they classify as a protest (Brief of Petitioners, page 22) 
could easily have inflamed the public. This court has held 
that park segregation is unlawful and rights of minorities 
are to be protected but with a right goes a corresponding 
duty that is to obey all reasonable requests of a police 
officer. As was said by Judge Lehman writing for the 
New York Court of Appeals in People v. Galpern, 259 
N. Y. 279, 181 N. E. 572, “ Failure, even though consci­
entious, to obey directions of a police officer, not exceed­
ing his authority, may interfere with the public order 
and lead to a breach of the peace.”



—  1 4  —

ARGUMENT II.

Petitioners Further Argue That the Judgment Below 
Does Not Rest Upon Adequate Non-Federal 

Grounds for Decision.

In their argument, Petitioners apparently expand this 
point to include the same point that is included in and 
argued under Argument I above. This is indicated by 
their first statement under Argument II, in which they 
state: “ Initially it should be emphasized that the court 
below indisputably did consider and reject petitioners’ 
due process claim under the Fourteenth Amendment . . . 
by asserting: ‘However, by applying the well-recognized 
principles and applicable tests above-stated, we find no 
deprivation of the defendants’ constitutional rights under 
the Fourteenth Amendment of the United States Consti­
tution’.’’ A careful reading of the decision below shows 
the statement attributed to the court below was in con­
junction with their discussion relating to whether the 
statute, under which the Petitioners were convicted, was 
so vague the Defendants were not placed on notice as to 
what criminal act they committed. As was stated above, 
this point was covered in Argument I and for that reason 
will not here be gone into again.

The Petitioners here present the question of whether 
the court below followed its set rule in treating as aban­
doned any assignments of error not insisted upon by 
counsel in their briefs or otherwise. Here the discussion 
deals with the two assignments of error treated by the 
court belowr as abandoned. In the Petitioner’s bill of 
exceptions to the court below these two assignments of 
error were on the judgment sentencing each petitioner 
(fourth ground) and on the denial of their motion for a 
new trial (third ground). In reference to these two



grounds in the court below the Petitioners cited no au­
thority, made no argument or even a statement that such 
grounds were still relied upon. In view of the foregoing, 
the court below applied the applicable rule as laid down 
in Henderson v. Lott, 163 Ga. 326 (136 S. E. 403), and 
other cases cited in their decision and therefore correctly 
treated the questions as abandoned (R. 54).

AYe recognize that this Court will inquire into the ade­
quacy of a decision on state procedural grounds to deter­
mine whether the procedural application involved was 
inconsistent with prior decided cases. Staub v. City of 
Baxley, 355 IT. S. 313. Even in the face of the above clear 
rule the Petitioners have not cited to this Court one 
Georgia case to show that the rule laid down in Henderson 
v. Lott, supra, has been inconsistently applied.

Petitioners have apparently conceded that the above 
Georgia procedural rule has been consistently followed 
and therefore have attempted to show that the court be­
low should be reversed for two reasons as follows:

1. “ The court below did not exercise due regard for 
the general doctrine that every reasonable presumption 
is to be indulged against the waiver of a constitutional 
right.”

2. In certain cases this Court has found refusals to pass 
upon federal issues to be unreasonable for reasons other 
than inconsistent procedural application.

The only case Petitioners cite as supporting the first of 
the above two reasons is Glasser v. United States, 315 U. S. 
60, 70. The Glasser case in no wav deals with the deter­
mination of a procedural question by a state court, but 
rather concerns itself in the referenced part with the ap­
pointment of specific counsel to assist Defendant in U. S.



—  16

District Court over his objection to the appointment. The 
holding of the case on this point is clearly stated on page 
70. “ To preserve the protection of the Bill of Rights for 
hard pressed defendants, we indulge every reasonable pre­
sumption against the waiver of fundamental rights.”

We again reiterate that such is not the case here as the 
Petitioners had representation by counsel in the court 
below, to which representation they had expressed no 
objection.

The Petitioners next base their claim for reversal on 
what they allege to be an unreasonable refusal to pass 
upon federal issues.

We ask, is it unreasonable to he consistent? To ask the 
question is to answer it in that inconsistency would lead 
to uncertainty and to a lack of knowledge on how to pro­
tect one’s rights.

Under the procedural rule involved all that is required 
is an insistence on the position taken, that is, let the court 
know what position is taken by argument on the question 
or by covering the question in the brief or by stating the 
assignment of error is insisted upon by counsel.

Petitioners say the above requirement is unreasonable 
under the decisions of this court in Staub v. Baxley, #55 
U. S. 313; Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 
589; Union P. R. Co. v Public Service Commission, 248
IT. S. 67.

These cases are clearly distinguishable from the prin­
ciple presented in this case. The Union Pacific Railroad 
Company case dealt with the question of whether a consti­
tutional right had been waived by complying with the un­
constitutional statute. This court in taking jurisdiction



predicated its action in doing so on duress by the State, 
which we submit is not an issue in the current case for 
Petitioners were afforded every opportunity to present and 
argue their case.

Terre Haute Railroad Co. also concerns a point not at 
issue here, i. e., untenable construction of a charter granted 
by the State and thus evading the Federal question.

In the Staub v. City of Baxley case this court found the 
non-federal grounds to be without any fair or substantial 
support and plainly untenable in that the Georgia court did 
not follow a long line of its own decisions in determining 
the procedural matter. The converse is true in the present 
case (R. 54).

Lawrence et al. v. State Tax Commission of Mississippi,
286 U. S. 276, cited by the Petitioners, simply held that 
the purported non-federal ground put forward by the state 
court for its refusal to decide the constitutional question 
was unsubstantial and illusory. Which is clearly not the 
same as the case now before this court.

The decision in the court below does not impede the 
assertion of federal rights, nor is it burdensome to require 
insistence upon the grounds of appeal. Furthermore, it is 
clearly shown that the rule of the court below to treat as 
abandoned points not insisted upon has been consistently 
applied.

It has been held many times by this court that a State 
< ourt has the power to decide the proper method of pre­
serving Federal questions and such determination will bind 
this Court. Herdon v. Georgia, 295 U. S. 441; Parker v. 
Illinois, 333 U. S. 571; Edelman v. California, 344 U. S. 
.357; Michel v. Louisiana, 350 IT. S. 91. In all of these cases 
this Court deferred to a state court’s determination of its 
own procedural rules.

— 1 7  —



- 1 8 -

CONCLUSION.

For the foregoing reasons it is respectfully submitted 
that the judgment below should be affirmed.

Respectfully submitted,

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia,

P. O. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia.

ANDREW J. RYAN, JR.,
Solicitor General, Eastern Judicial Cir­

cuit of Georgia,

P. O. Address:

SYLVAN A. GARFUNKEL,
Assistant Solicitor General, Eastern 

Judicial Circuit of Georgia,
Attorneys for Respondent.

Room 305 Court House, 
Chatham County, 

Savannah, Georgia.





98



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM , 1962.

No. 68.

NATHANIEL W RIG H T, et al., 
Petitioners,

vs,
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia,

P. 0. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia.

ANDREW J. RYAN, JR.,
Solicitor General, Eastern Judicial 

Circuit of Georgia,
SYLVAN A. GARFUNKEL,

Assistant Solicitor General,
Eastern Judicial Circuit of Georgia, 

Attorneys for Respondent.
P. 0. Address:

Room 305 Court House,
Chatham County,

Savannah, Georgia,

S t . Loms L a w  P r i n t i n g  C o ., I n c .. 415 N. Eighth Street. CEntral 1-4477.





INDEX.

Page
Questions presented ........................................................  1

Statement .........................................................................  2
Argument I .....................................................................  7

Petitioners argue that the statute under which they 
were convicted was too vague and indefinite to 
provide an ascertainable standard of g-uilt...........  7

Argument I I ..................................................................... 14
Petitioners further argue that the judgment below 

does not rest upon adequate non-federal grounds 
for decision...............................................................  14

Conclusion .......................................................................  18

Cases Cited.

Chaplinskv v. New Hampshire, 315 U. S. 568, 8 6  L. ed.
1031 ..............................................................................  9

Edelman v. California, 344 IT. S. 357............................  17

Fox v. The State of Washington, 236 U. S. 273, 59 L. 
ed. 573 (1914) ..............................................................  9

Garner v. Louisiana, 368 IT. S. 157, 7 L. Ed. (2) 207.. .8 , 1 1  

Glasser v. United States, 315 IT. S. 60, 70..................... 15

Henderson v. Lott, 163 Ga. 326 (136 S. E. 403) .........  15
Herdon v. Georgia, 295 U. S. 441.................................... 17

Lawrence et al. v. State Tax Commission of Missis­
sippi, 286 IT. S. 276......................................................  17

Michel v. Louisiana, 350 U. S. 91.................................. 17



11

National Labor Relations Board v. Fansteel Metal 
Corporation, 306 U. S. 240, 83 L. ed. 627.................  n

Parker v. Illinois, 333 U. S. 571..................................  17
People v. Galpern, 259 N. Y. 279, 181 N. E. 572.......... 9,13

Samuels v. State, 103 Ga. Appeals 6 6 , 118 S. E. 2nd
231 (1961) ...................................................................  7

Staub v. City of Baxley, 355 U. S. 313.................. 15,16,17
Terre Haute I. R. Co. v. Indiana, 194 IT. S. 579, 589. .16,17
Union P. R. Co. v. Public Service Commission, 248 

U. S. 67 16



IN TH E

SUPREME COURT OF THE UNITED STATES.
OCTOBER TERM, 1962,

No. 68.

NATHANIEL W RIGHT, et al„
Petitioners,

vs.
GEORGIA.

On Writ of Certiorari to the Supreme Court 
of the State of Georgia.

BRIEF FOR RESPONDENT.

QUESTIONS PRESENTED.

I.
Whether the conviction of petitioners for unlawful as­

sembly denied them due process of law under the Four­
teenth Amendment, when they were convicted on evidence 
which showed that they were grown Negro men who took 
over a playground in a predominantly white neighbor­
hood at a time when the playground was reserved for 
and was to be used by school children and they refused 
to leave when requested by the police.

I I .

Whether the decision below asserts any adequate non- 
federal grounds for limiting consideration of an aspect 
ot an important constitutional right where the court 
below determined that such right had been abandoned.



—  2 —

STATEMENT.

Petitioners were convicted of violating Section 26-5301, 
Georgia Code Annotated in that they did assemble in the 
County of Chatham on January 23, 1961 at Daffin Park 
for the purpose of disturbing the public peace and refus­
ing to disburse (sic) on being commanded to do so by 
Sheriff, Constable and Peace Officer, to wit: W. H. Thomp­
son and G. W. Hillis . . .  (R. 8 ).

The State of Georgia introduced four witnesses, the first 
witness, Officer G. H. Thompson stated:

When we arrived at this Basket Ball Court we 
found around seven colored boys playing basket hall 
there . . . (R. 39).

They were pretty well dressed at that time; some 
of them had on dress shirts, some of them had on 
coats—not a dress coat, but a jacket. I didn’t notice 
what particular type shoes they had on, as far as I 
know they didn’t have “ Tennis shoes” on. I am 
familiar with the type of shoes that people wear 
when they play basket ball, they didn’t have that 
type of shoes on as well as I remember . . . (R. 39).

I think that these defendants ranged in age from 
23 to 32 . . . (R. 39).

There is a school nearby this Basket Ball Court, it 
is located at Washington Avenue and Bee Road, I 
mean, at Washington Avenue and Waters. There is 
another school on 44th Street—there are two schools 
nearby; T believe that they are both “ grammar” 
schools. I  patrol that area and the children from 
these schools play there, they come there every day 
I believe, I believe they come there every afternoon 
when they get out of school, and I believe they come 
there during recess. The school, I believe, gets out 
about 2:30 in the afternoon, and this was around 2:00 
o’clock . . . (R. 40).



When I came up to those defendants I asked them 
to leave; I spoke to all of them as a group when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I gave them an op­
portunity to leave. One of them, I don’t know which 
one it Avas, came up and asked me who gave me orders 
to come out there and by what authority I came 
out there, and I told him that I didn’t need any 
orders to come out there. The children from the 
schools, would have been out there shortly after that. 
The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there were five or six cars driving around the park 
at the time, white people. They left only after they 
were put under arrest, they were put under arrest ap­
proximately 5 to 10 minutes after T told them to 
leave. It seemed like to me that they were welcom­
ing the arrests, because all of them piled into the 
car, Officer Hillis’s car, at the time, and he had to 
stop them . . . (R. 40).

On cross-examination Officer Thompson further testi­
fied:

Under ordinary circumstances T would not arrest 
hoys for playing basketball in a public park. I have 
never made previous arrests in Daffin Park because 
people played basketball there . . . (R. 41).

On redirect he stated:
There have been colored children in Daffin Park, 

but I did not arrest those children, but I arrested 
these people because we were afraid of what was 
going to happen. Colored children have played in 
Daffin Park, and they have fished there . . . (R. 42).

The next witness the State put up was Carl Hager, 
Superintendent of the Recreational Department of the 
City of Savannah. He stated:



As Superintendent I am over all of the playgrounds 
in the City of Savannah, Chatham County, Georgia; 
that includes Daffin Park and all the other parks that 
have playgrounds. These playgrounds are mostly in 
neighborhood areas. There are neighborhood areas 
where colored families live, and neighborhood areas 
where white people live, we try to establish them in 
that manner, and, then there are certain areas where 
they are mixed to a certain extent. We have a play­
ground in the Park Extension, and that is a mixed 
area for white and colored—a white section and a 
colored section—it is mostly white, but there are 
several colored sections within several blocks. The 
Daffin Park area, mostly around that area is mostly 
white. It has occurred, from time to time, that colored 
children would play in the Daffin Park area and in 
the Park Extension area, but no action had been 
taken, because it is legal, it is allowed, and nobody 
has said anything about it. The playground areas 
are basically for young children, say 15 to 16 and 
under, along that age group, we give priority to the 
playground to the younger children over the grown­
ups, it made no difference as to whether they were 
white or colored. Anytime that we requested anyone 
to do something and they refused we would ask the 
police to stop in, if we would ask them to leave and 
they did not we would ask the police to step in. We 
have had reports that colored children have played 
in the Park Extension, but they were never arrested 
or told to leave . . . (R. 42-43).

On cross-examination, Mr. Hager stated in answer to 
questions:

I testified that if there was a conflict between the 
younger pieople and the older people using the park 
facilities the preference would he for the younger

—  4  —



people to use them, but we have no objection to older 
people using the facilities if there are no younger 
people present or if they are not scheduled to be used 
by the younger people . . . (R. 44).

It has been the custom to use the parks separately 
for the different races. I couldn’t say whether or not 
a permit would or would not be issued to a person 
of color if that person came to the office the Recre­
ational Department and requested a permit to play 
on the courts, hut I am of the opinion that it would 
have been, we have never refused one, the request 
never has been made . . . (R. 45).

There is no minimum or maximum age limit for the 
use of basket ball courts, however, at the present time 
we have established a minimum—a maximum age 
limit of 16 years for any playground area.

On redirect Mr. Hager further explained:

On school days these courts and the playground 
area at Daffin Park are available for only certain age 
groups and they are only used at that time of day 
by the schools in that vicinity, it is, more or less, 
left available for them, that is the way we have our 
recreation setup . . . (R. 46).

I would like to say that normally we would not 
schedule anything for that time of the day because 
of the schools using the total area there. The schools 
use the area during school hours. The Parochial 
School uses it during recess and lunch periods and 
also for sport, as also the Lutheran School, and the 
public schools bring their students out there by bus 
and at various times during school hours all day 
long, we never know when they are coming, and they 
use Cann Park the same way, I might add . . . (R. 47).

It it was compatible to our program we would 
grant a permit for the use of the basketball court in



Daffin Park to anyone regardless of race, creed or 
color, however, at that time of day it would not be 
compatible to our program . . . (R. 47-48).

Officer Hillis, the next witness for the State, stated as 
follows:

My name is G. W. Hillis. I am a police officer 
of the Savannah Police Department, and I was a 
member of and on duty with the Savannah Police 
Department on or about the 23rd day of January of 
this year; I was on duty then and I had on my police 
uniform. When I arrived there I saw the defend­
ants, they were playing basketball. Officer Thompson 
talked to them first, and then I talked to them. I asked 
them to leave, Officer Thompson had already asked 
them, I heard him ask them. They did not leave, and 
they did not stop playing until I told them they were 
under arrest. We called the wagon (cruiser). Officer 
Thompson told them that they would have to leave, he 
told them that at first, and they did have an oppor­
tunity to leave after he told them that. He asked 
them to leave, and then I asked them to leave after 
I saw they wasn’t going to stop playing, and when I 
asked them to leave one of them made a sarcastic 
remark, saying: “ What did he say, I didn’t hear 
him’’, he was trying to be sarcastic. When I told 
them to leave there was one of them who was writing 
Avith a pencil and looking at our badge numbers. 
They all had an opportunity to leave before I arrested 
them, plenty of time to have left, but I told them to 
leave, they wouldn’t leave and I put them under arrest 
. . . (R, 49-50).

1 am familiar with the fact that there are schools 
in that area, and that children would be out there 
in about 15 minutes to play in that area . . . (R.



ARGUMENT I.

Petitioners Argue That the Statute Under Which They
Were Convicted Was Too Vague and Indefinite to 

Provide an Ascertainable Standard of Guilt.

In their argument on this point, Petitioners seek to lead 
the court to believe that this statute is a statute that has 
rarely been used and they base this on the fact that there 
is a paucity of appellate decisions involving its construc­
tion. As pointed out in the opinion of the Georgia Su­
preme Court (R. page 52 at page 56) the crime of un­
lawful assembly is itself of common law origin.

To determine whether breach of the peace statutes are 
seldom used, I refer the court to the Uniform Crime Re­
ports of 1961 printed by the United States Department of 
Justice which on page 30 carries Breach of the Peace as 
disorderly conduct in their records. On page 93 the chart 
shows that there were 468,071 arrests for disorderly con­
duct (Breach of the Peace) made in the United States dur­
ing 1961. Other than the amount of people arrested for 
drunkenness this was by far the most common charge 
placed against individuals. As to whether such a charge 
was too vague and indefinite to warrant a conviction, 
page 86 of the report shows that there were 62.6% find­
ings of guilty against all people arrested for disorderly 
conduct and 15.4% acquittals or dismissals. What is 
most probably true is that due to the antiquity of the 
crime “ Breach of the Peace’’, it has rarely been chal­
lenged in the Appellate CYmrts.

In their brief petitioners refer to the case of Samuels V. 
State, 103 Ga. Appeals 6 6 , 118 S. E. 2nd 231 (1961), as 
being the only Georgia case in which there has been a 
construction of this statute. In giving the court the facts 
in the Samuels case in order to try and place it within



the bounds of Garner v. Louisiana, 368 U. S. 157, 7 L. Ed. 
(2) 207, Petitioners left out what was said on page 6G 
which came after the fact was shown that they had sat 
down at the lunch counter that had been customarily re­
served for white people only. “ The personnel of the 
store informed the defendants that the lunch counter was 
closed, the lights over the counter were extinguished and 
the defendants were refused service. This action was 
taken because they were Negroes.’’ In their opinion the 
court said (page 6 6 ), “ Several witnesses testified that in 
their opinion the presence of the defendants at the lunch 
counter would tend to create a disturbance.’’ A reading 
of the record in the Georgia Court of Appeals (Transcript 
of Record, page 19) showed that the witnesses referred to 
were the employees of the store, one of whom was a Mr. 
Tyson, who stated, “ We had closed the counter and were 
no longer- serving at that lunch counter. Ordinarily we 
would not have closed it up at that time of day. It would 
have remained opened normally until 1 0 :0 0  that night and 
it was a result of the defendants being at the counter that 
we closed it.’’ It was this witness’s opinion that the de­
fendants were creating a disturbance. Mr. Kline, the 
Manager, also stated that he wanted to keep the counter- 
closed as long as there was any disturbance and he con­
sidered this a disturbance (Ga. Court of Appeals, Tran­
script of Record, page 20).

It is significant that Samuels was represented by the 
same attorneys who represent the Petitioners in this ac­
tion arrd that they did rrot make any suggestion that the 
statute was unconstitutional.

As the respondent understands the argument of the 
petitioners, they are rrot arguing that the statute was un­
constitutionally applied to them but that the statute itself 
is unconstitutional as being too vague and indefinite.



—  9 —

We, therefore, cite to the court the case of Chaplinsky 
v. New Hampshire, 315 U. S. 568, 86  L. ed. 1031, which 
involved a statute whose stated purpose was to preserve 
the public peace. The court on page 573 stated “ The 
statute, as construed, does no more than prohibit the face 
to face words plainly likely to cause a breach of the peace 
by the addressee.” The Petitioner in that case was claim­
ing that the statute was limiting his freedom of speech. 
This court held that such a statute was not so vague and 
indefinite as to contravene the Fourteenth Amendment.

The case of Fox v. The State of Washington, 236 lT. S.
273, 59 L. ed. 573 (1914), involved a violation of a Breach 
of the Peace statute. The highest court in the state of 
Washington held that the statute was not bad for uncer­
tainty. This court, page 277, said, “ We understand the 
State Court by implication, at least, to have read the 
statute as confined to encouraging an actual breach of 
law. Therefore, the argument that this act is both an 
unjustifiable restriction of liberty and too vague for a 
criminal law must fail.”

We cite to the court a decision of the Court of Appeals 
of New York, People v. Galpern, 259 N. Y. 279, 181 N. E. 
572, in which that court held: “ The record shows that 
the arrest arose out of a dispute, conducted on each side 
quietly and without disorder, between a citizen, in this 
case a member of the bar, who asserted a right to stand 
upon the sidewalk of a street in quiet orderly conversation 
with a group of friends, and a police officer, who asserted 
a right to direct, those who use the sidewalk to ‘move on’ 
when in his opinion they were obstructing the sidewalk.” 
The defendant was convicted of a Breach of the Peace for 
failing to move on. The question involved is very much 
similar to the question involved here. On page 573 the 
court held “ Even if we should find that the police officer’s 
interference was unnecessary, and, in the circumstances.



—  10 —

ill-advised, we could not find that it was unauthorized. 
The defendant, knowing the character and standing of 
his group of friends and that they would not w illingly 

annoy or offend others, might conclude that the inter­
ference was officious; the police officer without such knowl­
edge might conclude that it was a useful precaution to 
avoid possible disturbance. The law authorized the officer 
to use his judgment. Friends may congregate on the 
sidewalk in an orderly group for a short conversation, 
without creating disorder or unduly offending or obstruct­
ing others, but they must ‘move on’ when a police officer 
so directs for the purpose of avoiding possible disorder 
which otherwise might ensue. The Legislature has pro­
vided that failure to obey such direction in itself is dis­
orderly conduct. That provision tends to preserve public 
order on the streets of a great city.”

Petitioners’ brief argues that the determination of a 
purpose to disturb the public peace is left entirely to the 
discretion of the police, the courts and the jury (Brief of 
Petitioner, page 13). The question is now asked Peti­
tioners: To whom would they suggest such a question 
should be left if not to the police, the courts and the jury? 
There are many cases where a jury and the courts must 
determine questions of this character as, for instance, 
“ intent” and “ malice” .

The Petitioners in their brief, page 14, further state, 
“ If the statute is considered without the benefit of the 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and 
orderly acts or merely outwardly disorderly conduct." 
This statement answers itself in that the petitioners recog­
nize that the Samuels case had previously been decided 
and had construed the act so that they are unable to state 
that they were not aware of its construction.



— 11

This court has again recently held in the case of Garner 
v. Louisiana, 368 U. S. 157, 7 L. ed. (2) 207, at 216, “ We 
are aware that the Louisiana courts have the final au­
thority to interpret and where they see fit, to reinterpret 
that state’s legislation.’’ That case also involved the in­
terpretation of a breach of the peace statute. This court 
on page 215 said, “ We, of course, are bound by a state’s 
interpretation of its own statute and will not substitute 
our judgment for that of the state’s when it becomes 
necessary to analyze the evidence for the purpose of 
determining whether that evidence supports the findings 
of a state court.’’

The Petitioners have widened their argument from that 
stated in its original heading to the further point that 
the petitioners say that they were arrested solely because 
they were Negroes. During the trial of the case and on 
appeal below, petitioners consistently argued that they had 
gone there merely to play basket ball; whereas, the State 
of Georgia attacked the bona tides of this statement. At 
last on page 15 of Petitioners’ Brief they admit that it 
may be regarded as “ a profound, nonverbal expression 
of the impropriety of racial segregation in public parks’’. 
They then argue that this demonstration was within the 
range of freedom of speech as assured by the Fourteenth 
Amendment.

Surely taking over the playground does more than ex­
press their views and is similar to the sit-down strikes. 
The reasoning employed by the court in National Labor 
Relations Board v. Fansteel Metal Corporation, 306 IT. S. 
-40, 83 L. ed. 627, expresses the feeling that is applicable 
to this case. At page 253 this Court said, “ The em­
ployees had the right to strike but they had no license to 
commit acts of violence or to seize their emplover’s 
plant.”



—  1 2  —

The State of Georgia is not denying the right of Ppfi. 
tioners to play upon public playgrounds. There is no 
evidence to support a finding that if the children weren’t 
assigned the playground, the Petitioners could not have 
played. What Petitioners want this court to do is to over­
look any and all other evidence in this case except that 
they were Negroes and that they were arrested.

There is no evidence to support such a statement as a 
“ white basket ball court” . That would mean a basket 
ball court reserved exclusively for whites. What the 
testimony does show (R. page 44) is that there are play­
grounds in white areas and playgrounds in colored areas 
(R. page 44). Mr. Hager, Superintendent of the Recrea­
tional Department, testified that they tried to establish 
them in that manner, that there are two playgrounds that 
are in mixed areas. One of them being in Park Exten­
sion and the other in Wells Park (R. page 42). Mr. 
Hager further testified, “ It has occurred, from time to 
time, that colored children would play in the Daffin Park 
area and in the Park Extension area, hut no action had 
been taken because it is legal, it is allowed, and nobody 
has said anything about i t ” (emphasis ours) (R. page 43).

Officer Hillis stated, “ There have been colored children 
in Daffin Park, but I did not arrest those children, but I 
arrested these people because we were afraid of what 
was going to happen. Colored children have played in 
Daffin Park and they have fished there” (R. page 42).

The Petitioners on cross-examination sought to develop 
that one of the reasons the Petitioners were arrested was 
because they were Negroes. This fact, in the policeman’s 
eyes, added an additional reason for asking the Petition­
ers to leave since they had taken over the childrens’ 
playground in an area surrounded by whites and there



was, therefore, more cause to recognize a possible dis­
turbance. The Petitioners themselves now admit that 
mavhe they weren’t there to play basket ball but that 
thev were there to put on what they called a demonstra­
tion.

The fault in the Petitioner’s reasoning- is that they have 
not shown that the park was segregated but the state on 
its own volition went out of its way to show that it was 
not segregated, as witnessed by the testimony of Mr. 
Hager, the Superintendent of Playgrounds. In trying to 
demonstrate their right to play, the Petitioners took away 
the rights of those for whom the playground had been set 
aside at that. time.

The Petitioners have not shown that the exclusion of 
adults from the playground during these hours was an 
unreasonable exercise of discretion by the playground 
authorities. Petitioners by their precipitate action which 
they classify as a protest (Brief of Petitioners, page 22) 
could easily have inflamed the public. This court has held 
that park segregation is unlawful and rights of minorities 
are to be protected but with a right goes a corresponding 
duty that is to obey all reasonable requests of a police 
officer. As was said by Judge Lehman writing for the 
New York Court of Appeals in People v. Galpern, 259 
N. Y. 279, 181 N. E. 572, “ Failure, even though consci­
entious, to obey directions of a police officer, not exceed­
ing his authority, may interfere with the public order 
and lead to a breach of the peace.”



—  1 4 -

ARGUMENT II.

Petitioners Further Argue That the Judgment Below 
Does Not Rest Upon Adequate Non-Federal 

Grounds for Decision.

In their argument, Petitioners apparently expand this 
point to include the same point that is included in and 
argued under Argument I above. This is indicated hr 
their first statement under Argument II, in which thev 
state: “ Initially it should be emphasized that the court 
below indisputably did consider and reject petitioners' 
due process claim under the Fourteenth Amendment . . . 
by asserting: ‘However, by applying the well-recognized 
principles and applicable tests above-stated, we find no 
deprivation of the defendants’ constitutional rights under 
the Fourteenth Amendment of the United States Consti­
tution’.’’ A careful reading of the decision below shows 
the statement attributed to the court below was in con­
junction with their discussion relating to whether the 
statute, under which the Petitioners were convicted, was 
so vague the Defendants were not placed on notice as to 
what criminal act they committed. As was stated above, 
this point was covered in Argument I and for that reason 
will not here be gone into again.

The Petitioners here present the question of whether 
the court below followed its set rule in treating as aban­
doned any assignments of error not insisted upon by 
counsel in their briefs or otherwise. Here the discussion 
deals with the two assignments of error treated hv the 
court below as abandoned. In the Petitioner’s bill of 
exceptions to the court below these two assignments of 
error were on the judgment sentencing each petitioner 
(fourth ground) and on the denial of their motion for a 
new trial (third ground). In reference to these two



—  1 5  —

grounds in the court below the Petitioners cited no au­
thority, made no argument or even a statement that such 
grounds were still relied upon. In view of the foregoing, 
the court below applied the applicable rule as laid down 
in Henderson v. Lott, 163 Ga. 326 (136 S. E. 403), and 
other cases cited in their decision and therefore correctly 
treated the questions as abandoned (R. 54).

We recognize that this Court will inquire into the ade­
quacy of a decision on state procedural grounds to deter­
mine whether the procedural application involved was 
inconsistent with prior decided cases. Staub v. City of 
Baxley, 355 U. S. 313. Even in the face of the above clear 
rule the Petitioners have not cited to this Court one 
Georgia case to show that the rule laid down in Henderson 
v. Lott, supra, has been inconsistently applied.

Petitioners have apparently conceded that the above 
Georgia procedural rule has been consistently followed 
and therefore have attempted to show that the court be­
low should he reversed for two reasons as follows:

1. “ The court below did not exercise due regard for 
the general doctrine that every reasonable presumption 
is to be indulged against the waiver of a constitutional 
right.”

2. In certain cases this Court has found refusals to pass 
upon federal issues to be unreasonable for reasons other 
than inconsistent procedural application.

The only case Petitioners cite as supporting the first of 
the above two reasons is Glasser v. United States, 315 U. S. 
60, 70. The Glasser case in no way deals with the deter­
mination of a procedural question by a state court, but 
rather concerns itself in the referenced part with the ap­
pointment of specific counsel to assist Defendant in U. S.



- 1 6 -

District Court over his objection to the appointment. The 
holding of the case on this point is clearly stated on page 
70. “ To preserve the protection of the Bill of Rights for 
hard pressed defendants, we indulge every reasonable pre­
sumption against the waiver of fundamental rights.”

We again reiterate that such is not the case here as the 
Petitioners had representation by counsel in the court 
below, to which representation they had expressed uo 
objection.

The Petitioners next base their claim for reversal on 
what they allege to be an unreasonable refusal to pass 
upon federal issues.

We ask, is it unreasonable to be consistent? To ask the 
question is to answer it in that inconsistency would lead 
to uncertainty and to a lack of knowledge on how to pro­
tect one’s rights.

Under the procedural rule involved all that is required 
is an insistence on the position taken, that is, let the court 
know what position is taken by argument on the question 
or by covering the question in the brief or by stating the 
assignment of error is insisted upon by counsel.

Petitioners say the above requirement is unreasonable 
under the decisions of this court in Staub v. Baxley, 355 
U. S. 313; Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 
589; Union P. R. Co. v Public Service Commission, 248 
IT. S. 67.

These cases are clearly distinguishable from the prin­
ciple presented in this case. The Union Pacific Railroad 
Company case dealt with the question of whether a consti­
tutional right had been waived by complying with the un­
constitutional statute. This court in taking jurisdiction



- I T -

predicated its action in doing so on duress by the State, 
which we submit is not an issue in the current case for 
Petitioners were afforded every opportunity to present and 
argue their case.

Terre Haute Railroad Co. also concerns a point not at 
issue here, i. e., untenable construction of a charter granted 
by the State and thus evading the Federal question.

In the Staub v. City of Baxley case this court found the 
non-federal grounds to be without any fair or substantial 
support and plainly untenable in that the Georgia court did 
not follow a long line of its own decisions in determining 
the procedural matter. The converse is true in the present 
case (R. 54).

Lawrence et al. v. State Tax Commission of Mississippi,
286 U. S. 276, cited by the Petitioners, simply held that 
the purported non-federal ground put forward by the state 
court for its refusal to decide the constitutional question 
was unsubstantial and illusory. Which is clearly not the 
same as the case now before this court.

The decision in the court below does not impede the 
assertion of federal rights, nor is it burdensome to require 
insistence upon the grounds of appeal. Furthermore, it is 
clearly shown that the rule of the court below to treat as 
abandoned points not insisted upon has been consistently 
applied.

It has been held many times by this court that a State 
Court has the power to decide the proper method of pre­
serving Federal questions and such determination will bind 
this Court. Herdon v. Georgia, 295 IT. S. 441; Parker v. 
Illinois, 333 IT. S. 571; Edelman v. California, 344 U. S. 
357; Michel v. Louisiana, 350 IT. S. 91. In all of these cases 
this Court deferred to a state court’s determination of its 
own procedural rules.



—  1 8

CONCLUSION.

For the foregoing reasons it is respectfully submitted 
that the judgment below should be affirmed.

Respectfully submitted,

EUGENE COOK,
Attorney General of Georgia,

G. HUGHEL HARRISON,
Assistant Attorney General of Georgia,

P. O. Address:
132 State Judicial Building,

40 Capitol Square,
Atlanta 3, Georgia.

ANDREW J. RYAN, JR.,
Solicitor General, Eastern Judicial Cir­

cuit of Georgia,

SYLVAN A. GARFUNIvEL,
Assistant Solicitor General, Eastern 

Judicial Circuit of Georgia,

P. 0. Address:
Room 305 Court House, 

Chatham County, 
Savannah, Georgia.

Attorneys for Respondent.







§uprmp (Eourt of tip MnxUb Btutts
October Term, 1961 

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

I n  t h e

Nathaniel W eight, Chaeles L. S mart, R asco W hite, 
J ames W. T homas, B enjam in  Caetee, J udson F oed,

— v .—

P e tit io n e r s ,

S tate of Geoegia,
R e sp o n d e n t.

REPLY TO BRIEF IN OPPOSITION TO PETITION 
FOR WRIT OF CERTIORARI

J ack Geeenbebg 
Constance B akee Motley 
L eeoy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

A tto r n e y s  fo r  P e tit io n e r s





1st the

i ’upnmte (Sxnxxt nf tljp States
October Term, 1961 

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

Nathaniel W eight, Chaeles L. S mabt, R asco W hite, 
J ames W. T homas, B enjam in  Caetee, J udson F oed,

P e tit io n e r s ,

S tate of Geoegia,
R e sp o n d e n t.

ON PETITION FOE A W EIT OF CEETIOEAEI TO TH E  

SUPBEM E COUET OF GEOEGIA

PETITIONERS’ REPLY TO BRIEF IN OPPOSITION 
TO PETITION FOR WRIT OF CERTIORARI

Petitioners have received respondent’s Brief in Opposi­
tion to the Petition for W rit of Certiorari filed in this case 
and hereby reply pursuant to Rule 24(4) of the Rules of 
this Court.

I.

Mode of Raising Constitutional Questions

Respondent argues that where a state court has declined 
to pass upon a constitutional question for alleged failure 
to raise the question properly this Court may pass upon 
it only where the state has applied the procedural rule in­
consistently. But this Court has in many instances found 
such refusal unreasonable for reasons other than incon­



2

sistent application. T e rre  H a u te  I. R . Co. v. Indiana, 194 
U. S. 579, 589; U n ion  P . R . Co. v. P u b lic  S erv ice  Commis­
sion , 248 U. S. 67 and S ta u b  v. B a x le y , 355 U. S. 313.

As in S ta u b , the mode of avoiding the constitutional 
question here presented also fails to meet a bare minimum 
of intrinsic fairness and reasonableness. This Court never 
has been precluded from examining the particular appli­
cation of a state procedural rule to assure that it is not 
in essence an evasion of the federal questions on frivolous 
grounds. R o g e rs  v. A la b a m a , 192 U. S. 226, 230 and Van 
B a lia  R . R . Co. v. In d ia n a , ex  re l. S o u th  B en d , 207 U. S. 
359, 367.

Statement of the Facts

Despite State efforts to characterize the arrests as having 
nothing to do with the race of the petitioners, the fact 
remains that the arresting officer testified “one reason [for 
the arrest] was because they were Negroes” (R. 53). More­
over, respondent also concedes squarely in its brief the 
very fact it claims was not made out by the record, that 
the race of petitioners was the material factor in the arrest:

The fact that these defendants were adult Negro men 
on a children’s playground in a white residential area 
and that cars were beginning to assemble all contrib­
uted to a fear that there would be a breach of the 
peace if the defendants continued to use the play­
ground. (Brief in Opposition, p. 10.)

The fact that it is a crime in Georgia for Negroes to 
play on a white basketball court, although the statute gives 
no fair warning thereof, is what—in this context—renders 
the law vague. Petitioners were not warned in any manner 
of potential differential treatment solely because of race.



3

Respondent alleges another cause for the arrests: that 
petitioners violated the Recreational Department’s rules. 
This allegation distorts the record. The arresting officer 
did not “know the rules of the city’s recreational depart­
ment” (R. 52). He came to the basketball court solely be­
cause he was told by a “white lady” that some “colored 
people were playing in the basketball court” (R. 52). He 
had no information at that point that any infraction of 
playground rules was occurring (R. 52) nor did he testify 
that he saw any such infraction upon arriving at the scene.

Respondent states that the testimony of the superin­
tendent of the recreational department shows that peti­
tioners were arrested because they were “grown men” on a 
“children’s playground” and were dressed in street clothes.1 
Tliis witness’s testimony is to the contrary. He testified 
that under the rules of the Recreation Department the 
basketball courts could be used by adults (R. 56) (and, 
therefore, the petitioners were not on a playground exclu­
sively for children), and that it would not be improper to 
wear street clothes in unsupervised play (R. 56). He fur­
ther testified that although the school used the area during 
school days, the courts could be used by anyone if children 
were not actually there (R. 58). The arrests were made at 
2:00 in the afternoon when the children were not present 
but were in school (R. 53). Mr. Hager’s general comments 
that the Recreation Department might employ a non­
discrimination policy could not change the character of the 
arrests as attempts to enforce segregation because his office 
had intervened in no way (He learned of the arrests after 
they had been made [R. 54]), and the arresting officer was 
not aware of the Recreation Department’s rules (R. 52).

1 Respondent’s brief, p. 10, 2nd paragraph and see p. 13, 2nd 
paragraph.



4

Even if the respondent had been able to establish that 
the one ground for the arrests was violation of playground 
rules, this could not sustain the judgment below in the face 
of clear rulings by this Court for one basis of the convic­
tion was race. And as stated in Williams v. North Carolina 
317 U. S. 287, 292, “ [I]f one of the grounds for conviction 
is invalid under the Federal Constitution, the conviction 
would not be sustained.”

CONCLUSION

W herefore, for  the foregoing reasons, it is respectfully 
subm itted that the petition for w rit o f certiorari should 
be granted.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
Leroy D. Clark

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsen

Attorneys for Petitioners





38



I n  t h e

§ u ;im te  (Emtri n! tit? Initpfc S ta te s
October Term, 1962 

No. 68

N athaniel W eight, et al.,
Petitioners,

Georgia.

ON WRIT OF CERTIORARI TO TH E SUPREM E COURT OF THE  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark 
J ames M. N abrit, I I I  

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners





INDEX

Opinion Below .................................................................  1

Jurisdiction ............................ - ................................... — 1

Constitutional and Statutory Provisions Involved .... 2

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

Statement ...................................................... - .................  3

Argument :

I. The Petitioners Were Denied Due Process in 
That They Were Convicted Under a Statute 
Too Vague and Indefinite to Provide an Ascer­
tainable Standard of Guilt, and Which Pro­
vided No Fair Warning That Petitioners’ 
Conduct Was Proscribed. The Only Rational 
Alternative Conclusion Would Be That Peti­
tioners Were Convicted Without Any Evi­
dence of Their Guilt ......................................... 10

TT. The Judgment Below Does Not Rest Upon 
Adequate Non-Federal Grounds for Decision .. 23

Conclusion ......................................................................  29

Table of Cases and Other A uthorities

P A G E

Cases:

Bailey v. Alabama, 219 U. S. 219 ................................  28
Blackburn v. Alabama, 361 U. S. 199............................  28
Bolling v. Sharpe, 347 U. S. 497 ...   16
Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th 

Cir. 1960) ......................................................................  22



11

Boynton v. Virginia, 364 U. S. 454 ................ .............. 20
Brown v. Mississippi, 297 U. S. 278 ............................ 28
Buchanan v. Warley, 245 U. S. 6 0 ...............................  21

Cantwell v. Connecticut, 310 U. S. 296 ................. 14; 22,23
Chaplinski v. New Hampshire, 315 U. S. 568 .............  14

Connally v. General Construction Co., 269 U. S. 385 .14,26 
Cooper v. Aaron, 358 U. S. 1 ....................................... 16,21

PAGE

Elmore v. State, 15 Ga. App. 461, 83 S. E. 799 (1914) .... 12 

Faulkner v. State, 166 Ga. 645, 144 S. E. 193 (1928) .12,14

Garner v. Louisiana, 368 U. S. 157.............. 12,15,18,21,22
Gayle v. Browder, 352 U. S. 90 ...................................  20
Glasser v. United States, 315 U. S. 60 ........................ 27

Hague v. C. I. O., 337 U. S. 496 ...................................  16
Henderson v. Lott, 163 Ga. 326, 136 S. E. 403 .........  25
Herndon v. Lowry, 301 U. S. 242 ...............................  13
Holmes v. City of Atlanta, 124 F. Supp. 290 (N. D.

Ga. 1954); aff’d 223 F. 2d 93 (5th Cir. 1955), vacated
350 U. S. 879 .............................................................  22

Holmes v. City of Atlanta, 350 U. S. 879 ................  20

Kent v. Southern R. Co., 52 Ga. App. 731, 184 S. E.
638 (1935) .....................................................................  11

Lanzetta v. New Jersey, 306 U. S. 451 ................ ......  22
Lawrence v. State Tax Comm., 286 U. S. 276 ............. 28

Martin v. State, 103 Ga, App. 69, 118 S. E. 2d 233 ....11,27 
Mayor and City Council of Baltimore v. Dawson, 350 

U. S. 877 ..................................................................... 20



New Orleans City Park Improvement Asso. v. Detiege,
* 358 U. S. 54..................................................................... 20

Roberts v. Baker, 57 Ga. App. 733, 196 S. E. 104..........  27

Samuels v. State, 103 Ga. App. 66, 118 S. E. 2d 231
(1961) ..........................................................11,12,13,14,27

Staub v. Baxley, 355 U. S. 313......................................... 28
Strauder v. West Virginia, 100 U. S. 303 ...................... 16

Taylor v. Georgia, 315 U. S. 2 5 ....................................... 28
Taylor v. Louisiana, 370 U. S. 154................................. 20, 21
Terre Haute I. R. Co. v. Indiana, 194 U. S. 579 ............  28
Thompson v. City of Louisville, 362 U. S. 199.............. 21, 22
Thornhill v. Alabama, 310 U. S. 8 8 .............................. 15,16

Union P. R. Co. v. Public Service Commission, 248
U. S. 67 ....................................................................... 28

United States v. Brewer, 139 U. S. 278 ............................ 26

Wieman v. Updegraff, 344 U. S. 183 .............................  23
Winters v. New York, 333 U. S. 507 ............................. 12, 26

Statutes:

United States Code, Title 28, §1257(3) .......................... 1

United States Constitution, Fourteenth Amendment, 
Section 1 ......................................................................... 2

Georgia Code Annotated, Section 6-1308 ...........................  25

Georgia Code Annotated, Section 24-4515 ......................  26

Georgia Code Annotated, Section 26-5301 ....2, 3, 7, 8, 1 0 , 1 1 ,
12,16,17, 23, 24

Georgia Penal Code of 1816 (Ga. L. 1816) ....................  11

Georgia Penal Code of 1833, §359 .................................  11

Ill
P A G E



I V

Other Authorities:

Black’s Law Dictionary (4th ed. 1951) ..........................  27

Cobb’s Digest of the Statute Laws of Georgia (1851) .... li 
Lamar’s Compilation of the Laws of Georgia (1821) .... li

Myrdal, An American Dilemma, 618 (1944) ................. 22

Note, 109 U. of Pa. L. Rev. 6 7 .......................................  19

Webster’s New International Dictionary (2d ed.) ......  27

PAGE



I n  t h e

§upmtT (Himrt at %  HutUb
October Term, 1962 

No. 68

N a t h a n i e l  W r i g h t , et at.,
Petitioners,

Georgia.

ON WRIT OF CERTIORARI TO TH E SUPREM E COURT OF TH E  
STATE OF GEORGIA

BRIEF FOR PETITIONERS

Opinion Below

The opinion of the Supreme Court of Georgia is reported 
at 217 Ga. 453, 122 S. E. 2d 737 (1961) (R. 52).

Jurisdiction

The judgment of the Supreme Court of Georgia was 
entered on November 9, 1961 (R. 58). Rehearing was de­
nied November 21, 1961 (R. 60). The petition for certiorari 
was filed February 17, 1962, and was granted on June 25, 
1962. Jurisdiction of this Court is invoked pursuant to 
28 U. S. C. §1257(3), petitioners having asserted below and 
claiming here, denial of rights, privileges, and immunities 
secured by the Fourteenth Amendment to the Constitution 
of the United States.



2

Constitutional and Statutory Provisions Involved

1. This case involves Section 1 of the Fourteenth 
Amendment to the Constitution of the United States.

2. This case also involves Georgia Code Annotated 
Section 26-5301:

Unlawful Assemblies—Any two or more persons who 
shall assemble for the purpose of disturbing the public 
peace or committing any unlawful act, and shall not 
disperse on being commanded to do so by a judge, 
justice, sheriff, constable, coroner, or other peace of­
ficer, shall be guilty of a misdemeanor.

Questions Presented

I.
Whether the conviction of petitioners for unlawful as­

sembly denied them due process of law under the Four­
teenth Amendment, where they were convicted on no evi­
dence of guilt, or merely because they were Negroes who 
peacefully played basketball in a municipal park custom­
arily used only by white persons, under a statute which 
was drawn in sweeping and general terms and which gave 
no warning that such conduct was prohibited.

II.
Whether the decision below asserts any adequate non- 

federal ground for limiting consideration of an aspect of 
an important constitutional right where the court below 
unjustifiably determined that such right had been aban­
doned.



3

Statement

Petitioners, six young Negro men ranging from 23 to 32 
years of age (R. 39) in Savannah, Georgia, have been 
charged and convicted of the crime of unlawful assembly, 
a misdemeanor, in violation of §26-5301, Georgia Code 
Annotated. It was charged, in an accusation signed by 
the Solicitor General of the Eastern Judicial Circuit of 
Georgia, that petitioners on January 23, 1961:

. . . did assemble at Daffin Park for the purpose of 
disturbing the public peace and refused to disburse 
(sic) on being commanded to do so by Sheriff, Con­
stable and Peace Officer, to wit: W. H. Thompson and 
G.W. Hillis . . .  (R. 8 ).

Petitioners were brought before the city court of Savan­
nah, Georgia on May 18, 1961; they filed demurrers raising 
constitutional defenses which were overruled (R. 11-13); 
entered pleas of not guilty (R. 10); and were tried and 
found guilty by a jury (R. 10). The court sentenced five 
petitioners to fines of one hundred dollars or five months 
in jail (R. 10-11); the sixth petitioner, Nathaniel Wright, 
was sentenced to a fine of one hundred twenty-five dollars 
or six months in jail (R. 11).

The evidence for the State consisted of testimony by 
the two arresting officers, G. H. Thompson and G. W. Hillis, 
by another officer, Sgt. Dickerson, who arrived at the scene 
of the alleged crime after the arrest, and by Carl Hager, 
Superintendent of the Savannah Recreational Department, 
who was not present during the incident but testified con­
cerning certain city park department policies. The defen­
dants presented no evidence.



4

At about 2 :00 p.m. on January 23, 1961, police officers 
Thompson and Hillis were on duty in an automobile in 
Daffin Park, a fifty acre recreational park in Savannah, 
Georgia (R. 39; 49). Officer Thompson stated:

This matter first came to my attention when this white 
lady had this conversation with us, the lady who told 
us that colored people were playing in the Basket Ball 
Court down there at Daffin Park, and that is the reason 
I went there, because some colored people were playing 
in the park. I did not ask this white lady how old 
these people were. As soon as I found out these were 
colored people I immediately went there (R. 40-41).

When the officers arrived at the basketball court, accord­
ing to Officer Hillis,

. . . the defendants were playing basketball. They 
were not necessarily creating any disorder, they were 
just ‘shooting at the goal’, that’s all they were doing, 
they wasn’t disturbing anything (R. 50; see also R. 41).

Petitioners wTere wTell dressed in street clothes; “some 
of them had on dress shirts, some of them had on coats— 
not a dress coat, but a jacket” (R. 39). The two officers 
approached the defendants, and both asked the defendants 
to leave the basketball court. Officer Thompson testified:

When I came up to these defendants I asked them 
to leave; I spoke to all of them as a group when I 
drove up there, and I asked them to leave twice, but 
they did not leave at that time. I  gave them an oppor­
tunity to leave. One of the, I don’t know which one 
it was, came up and asked me wTho gave me orders to 
come out there and by what authority I came out 
there, and I told him that I didn’t need any orders to 
come out there . . .  (R. 40).



5

Officer Hillis said:
Officer Thompson told them that they would have to 
leave, he told them that at first, and they did have an 
opportunity to leave after he told them that. He asked 
them to leave, and then I asked them to leave after 
I saw they wasn’t going to stop playing, and [fol. 61] 
when I asked them to leave one of them made a sar­
castic remark, saying: “What did he say, I didn’t hear 
him”, he was trying to he sarcastic. When I told them 
to leave there was one of them who was writing with 
a pencil and looking at our badge numbers. They all 
had an opportunity to leave before I arrested them, 
plenty of time to have left, but I told them to leave, 
they wouldn’t leave and I put them under arrest 
(R. 49-50).

Officer Thompson testified further on direct that “The 
purpose of asking them to leave was to keep down trouble, 
which looked like to me might start—there were five or six 
cars driving around the park at the time, white people” 
(E. 40).

On cross examination Officer Thompson said:

I arrested these people for playing basketball in 
Baffin Park. One reason was because they were 
negroes. I observed the conduct of these people, when 
they were on the basketball court and they were doing 
nothing besides playing basketball, they were just nor­
mally playing basketball, and none of the children from 
the schools were there at that particular time1 (R. 41). 
(Emphasis added.)

1 The officer had testified that children from nearby schools play 
in the park “every afternoon when they get out of school . . . about 
2:30 in the afternoon, and this was around 2:00 o’clock” (R. 40).



6

On cross examination Policeman Thompson stated that 
there was a driveway about 15 yards from the basketball 
court, and that five or six cars were riding around the 
driveway, but that “I wouldn’t say that that was unusual 
traffic for that time of day” (R. 41).

Daffin Park, where these incidents took place, is a part 
of the system of playgrounds maintained by the Recrea­
tional Department of the City of Savannah under the di­
rection of Superintendent Carl Hager, who testified that 
the city parks were located in various colored and white 
neighborhoods with fourteen parks in white areas and 
seven parks in Negro areas (R. 42-44), and that “It has 
been the custom to use the parks separately for the different 
races” (R. 45). With regard to the Daffin Park area, 
Mr. Hager said, “around that area is mostly white” (R. 43).2

Neither of the arresting officers testified that petitioners 
violated any park rules. Officer Thompson said that he had 
never arrested people in Daffin Park for playing basketball 
there, and that, “I don’t have any knowledge myself if any 
certain age group is limited to any particular basketball 
court, I don’t know the rules of the City Recreational 
Department” (R. 41).

Superintendent Hager, whose office is located in Daffin 
Park, was informed of the arrests after they had been made 
and the police and defendants had left (R. 43). He was I

2 Mr. Hager did state that occasionally colored children had 
played in the Daffin Park area and that no action had been taken 
(R. 43). Officer Thompson said:

I have observed colored children playing in Daffin Park, but 
not playing basketball, but I have observed them playing and 
fishing, we had gotten previous calls that they were fishing in 
there and such, but not playing basketball (R. 42).

He said that he had not arrested those children but that he 
arrested these people, the petitioners, “because we were afraid of 
what was going to happen” (R. 42).



7

not a witness to the incident. He did testify about certain 
park rules and policies, stating that, “ . . . we have no 
objection to older people using the facilities if there are 
no younger people present or if they are not scheduled 
to be used by the younger people” (R. 44), and that, 
“Grownups could use [the basketball courts] if there was 
no other need for them” (R. 45). Officer Thompson had 
testified that at the time of the arrest “none of the children 
from the schools were there at that particular time” and 
that “it would have been at least 30 minutes before any 
children would have been in this particular area” (R. 41). 
Although the arresting officers made several comments 
about the fact that petitioners were wearing street clothes, 
asserting that they were dressed up and had on “nice 
clothes” (R. 39; 42; 48), Mr. Hager said that the Recrea­
tional Department “would probably not expect” the usual 
basketball attire—short trunks, etc.—if persons “were play­
ing in an unregulated and unsupervised program, and it 
would be consistent with our program to allow persons to 
wear ordinary clothing on the courts if they chose to do so, 
I don’t think that we would object to that” (R. 45). And, 
indeed, Officer Thompson acknowledged that:

The people who play basketball don’t usually have 
uniforms on, sometimes they do and sometimes they 
don’t.3 It is possible to play basketball in street clothes 
(R. 42).

At the close of the evidence defense counsel made an oral 
motion for acquittal, arguing that there "was no evidence 
that defendants went to the park for the purpose of dis­
turbing the peace in violation of §26-5301; the court over­

3 A portion of this sentence was omitted by the printer in pre­
paring the record for this Court. See original record on file in this 
Court, pages 53-54.



8

ruled the motion (R. 14-16). The charge to the jury was 
general; it did not include any discussion of the elements 
of the defense except for a reading of the statute to the 
jury and a statement that city police officers were “peace 
officers” within the meaning of §26-5301 (R. 61-64). After 
the verdict and sentences (R. 10-11) petitioners filed iden­
tical motions for new trial, which were overruled by the 
court on July 24, 1961 (R. 17-38). The cases were con­
solidated for appeal (R. 51).

The Supreme Court of Georgia reviewed the convictions 
and affirmed, rejecting petitioners’ arguments (R. 58). The 
opinion of the Court dealt with petitioners’ constitutional 
claims in the following manner:

1) The Court refused to consider any of the grounds 
urged in the motion for new trial, asserting that the ex­
ception to the order overruling the motion for new trial 
was abandoned by petitioners’ brief in the Supreme Court 
of Georgia (R. 54). The Court asserted that the brief con­
tained “no argument, citation of authority, or statement 
that such grounds were still relied upon,” but “merely re­
ferred to the third ground by asking: ‘Did the Court com­
mit error in overruling plaintiff’s in error motion for new 
trial?’ ” (R. 54).

The motions for new trial (R. 17-38) had objected that 
the verdict was “contrary to the evidence and without 
evidence to support it” (Til), “decidedly and strongly 
against the weight of the evidence” (1J2), and was “con­
trary to law and the principles of justice and equity’- 
(U3). The motion had claimed a denial to the defendants 
of due process of law under the “First and Fourteenth 
Amendments” to the Constitution of the United States in 
that “the statute . . .  is so vague that the defendants were 
not put on notice as to what criminal act they had allegedly



9

committed” (fl4); a denial of due process under the Four­
teenth Amendment in that “said statute is unconscionably 
vague . . . nowhere in said statute does there appear 
a definition of disturbing the peace or committing any un­
lawful act” (115); and a denial of due process under the 
Fourteenth Amendment in that the law gave the “peace 
officers untrammelled and arbitrary authority to predeter­
mine the commission of the intent to commit an offense 
under said statute”, and in that the determination of for­
bidden acts was “left solely to the discretion of the said 
Peace Officer” (H6).

The Supreme Court of Georgia ruled on the five conten­
tions in the demurrers. It held that paragraphs 3 and 4 
of the demurrer (R. 12), which objected that petitioners 
were arrested to enforce racial discrimination and a custom 
of racial segregation in municipally owned places of public 
recreation in violation of the equal protection and due 
process clauses of the Fourteenth Amendment, on the 
ground that these were improper speaking demurrers 
(R. 55). The Court rejected the claims of paragraphs 1, 2, 
and 5 of the demurrer (R. 11-13), that the statute was 
unconstitutionally vague, denying petitioners’ rights under 
the due process clause of the Fourteenth Amendment, 
holding that the language of the statute was “in terms so 
lucid and unambiguous that a person of common intelli­
gence would discern its meaning and apprehend with what 
violation he was charged” (R. 57), and that the law had 
“a clear-cut standard to apprise one of what constitutes a 
criminal act and thus to guide the conduct of such officer” 
(R. 57).



10

A R G U M E N T

I.
The Petitioners Were Denied Due Process in That 

They Were Convicted Under a Statute Too Vague and 
Indefinite to Provide an Ascertainable Standard of Guilt, 
and Which Provided No Fair Warning That Petitioners’ 
Conduct Was Proscribed. The Only Rational Alterna­
tive Conclusion Would Be That Petitioners Were Con­
victed Without Any Evidence of Their Guilt.

The statute under which petitioners were convicted in 
this case, Section 26-5301, Code of Georgia, was held by 
the Supreme Court of Georgia to be “so lucid and un­
ambiguous that a person of common intelligence would 
discern its meaning and apprehend with what violation he 
was charged” (R. 57). The court below discussed peti­
tioners’ argument that the law7 was vague only by referring 
to the common law7 origins of the phrase “disturbing the 
public peace,” by asserting that this phrase was a synonym 
of “breach of the peace,” and that this idea “has long been 
inherently encompassed in our law and is prevalent in the 
various jurisdictions” (R. 56). The court also said that 
the crime of unlawful assembly has common law origins 
(R. 56), but offered no definition of the crime as embodied 
in this statute; nor did the court say the statute w7as the 
equivalent of common law unlawfful assembly. The opinion 
contained no discussion of the evidence in this case.4 The 
court did say7 that it had no occasion to consider the alleged 
vagueness of the statutory phrase “or committing any un­
lawful act”, because the accusation charged petitioners only

4 The trial court charge to the jury did not discuss the evidence 
or the meaning of the statute, except to state that city policemen 
were “peace officers” within the meaning of the law.



11

under the phrase concerning “disturbing the public peace” 
(R, 55).

The Georgia Supreme Court did not refer to any prior 
opinions construing Section 26-5301. Prior to this decision, 
the statute had been mentioned only two times in pub­
lished opinions.5 Kent v. Southern R. Co., 52 Ga. App. 731, 
184 S. E. 638 (1935),6 and Samuels v. State, 103 Ga. App. 
66, 118 S. E. 2d 231 (1961).7 Of these two cases, only the 
Samuels case, supra, involved a prosecution under Section 
26-5301.

In Samuels v. State, supra, three Negroes were held to 
violate Section 26-5301 in a prosecution ai’ising from a 
completely peaceful “sit-in” at a drugstore lunch counter 
where the police, but not the owner, ordered them to leave. 
The appellate court supplied an element to convict by judi­
cially noticing that hostility to lunch counter desegregation 
might lead white persons to attack defendants, and that 
the defendants should have known this. The facts in the 
Samuels case, set out more fully in the note below, bear

5 A similar provision appeared in the Ga. Penal Code of 1816 
(Ga. L. 1816, p. 178), Lamar’s Compilation of the Laws of Georgia 
(1821), p. 592; and see Ga. Penal Code of 1833, §359, Cobb’s Digest 
of the Statute Laws of Georgia (1851), p. 810. No reported cases 
have been discovered which discuss either of these predecessors of 
§26-5301.

6 K en t v. S ou th ern  R . Co., su p ra , was a damage suit brought by 
a picketing mill worker against a railroad for injury sustained from 
a tear-gas gun discharged by a police chief at the request of a rail­
road conductor to disperse a group of 50 strikers, including plain­
tiff, who were blocking a train from entering a mill by standing 
on the tracks. In holding the complaint demurrable, the court said 
that plaintiff and those with him blocking the train violated §26- 
5301 and other penal laws.

7 A companion case, M a rtin  v. S ta te , 103 Ga. App. 69, 118 S. B. 
2d 233, affirmed convictions said to be on facts similar to S am u els, 
supra, on authority of that case, without discussion of the facts or 
§26-5301.



12

a striking similarity to Garner v. Louisiana, 368 U. S. 157; 
the same is true of the judicial notice theory argued but 
rejected in Garner, supra.8

Petitioners submit that §26-5301 is by no means clear 
and unambiguous, either in its terms or in light of the con­
struction placed upon it by the state courts. The antiquity 
of the law does nothing to add clarity to it, particularly 
since it has so rarely been mentioned in the case law.9

If the Samuels case construction of the law is accepted, 
the statute certainly affords no ascertainable standard of

8 In S am u els  v. S ta te , su p ra , it was undisputed that defendants 
were quiet, peaceable, and orderly and that they merely courteously 
requested service at a lunch counter customarily reserved for 
whites; that they were refused service because they were colored; 
that they were not asked to leave by any store employee; that a 
police officer was called and defendants were arrested for not obey­
ing his order to leave (118 S. E. 2d at 232-233). There was no evi­
dence of any threats or actual violence or disorder, but a number of 
white persons gathered as onlookers, and several witnesses opined 
“that the presence of the defendants would tend to create a dis­
turbance” ( I b id .) .  The Georgia Court of Appeals construed §26- 
5301 to cover such orderly conduct that was not in and of itself a 
disturbance of the peace. To support this the court quoted at 
length from Corpus Juris for a definition of “breach of the peace” 
and cited two Georgia decisions holding that cursing and abusive 
language tending to incite to immediate violence is a breach of the 
peace. See, e.g., F a u lk n e r  v. S ta te , 166 Ga. 645, 144 S. E. 193 
(1928), and E lm o re  v. S ta te , 15 Ga. App. 461, 83 S. E. 799 (1914). 
To sustain the conviction, the court held that the trial court “un­
doubtedly” judicially noticed the fact that lunch counter segrega­
tion was a custom throughout the southeast part of the United 
States; that “the vast majority of the white people in these areas” 
have such strong feelings in favor of continuance of these customs 
that “attempts to break down the custom have more frequently than 
not been met with violent and forceable resistance on the part of 
the white people” (168 S. E. 2d at 233). The court then concluded 
that defendants were bound to know that their acts “might” result 
in violent opposition by local white people, and on this basis held 
the arrests and convictions justified. ( I b id .)

9 Laws similar to the statute in W in te rs  v. N ew  Y ork , 333 U. S. 
507, 511, were said to have “lain dormant for decades.”



13

guilt. There is no real standard for determining the ex­
istence of a “purpose to disturb the public peace.” This 
determination is left entirely in the discretion of the police, 
the courts, and the jury. When the law is construed to 
apply to peaceful and orderly conduct which may incite 
others to violence, without any required showing of threats 
or other overt manifestations of impending disorder or 
violence, the question left for the court or jury is : Whether 
under existing conditions, including the attitudes of a com­
munity majority with respect to particular peaceful and 
lawful conduct, as appraised by the court or jury from 
general knowledge not limited to the evidence, the defen­
dant should have believed that his conduct might result 
in violent opposition? This is plainly not a mere require­
ment that a defendant make a forecast based on a rule of 
reason. Rather, it is a requirement that he forecast a 
jury’s determination which in itself must be based on 
“pure speculation” as to the future conduct of others. 
Herndon v. Lowry, 301 U. S. 242, 263. If the public atti­
tudes that this determination involves were a fixed and 
static thing, the decision would be perilous enough—even 
for a scientific opinion analyst or pollster. But public atti­
tudes are not static. The subject of race relations, for one 
example, readily brings to mind cases of peaceful accept­
ance of desegregation in places where there has been ex­
pected violent opposition. Indeed, lunch counters in Savan­
nah have been desegregated notwithstanding the views 
expressed in the Samuels case, supra (New York Times, 
July 9,1961, p. 65, col. 1). Cf. footnote 8, supra.

To make the peaceful exercise of a constitutional right 
subject to a preliminary guess of this nature, under penalty 
of fine or imprisonment, is so to deter the exercise of the 
right as to practically destroy it. See Herndon v. Lowry, 
301U. S. 242, 261-264. Just as the “current rate of per diem



14

wages in the locality” was held inherently incapable of fixa­
tion in Connally v. General Construction Co., 269 U. S. 385, 
393-395, so in this case the required judicial appraisal of 
the attitudes of an amorphous vast community majority, 
as viewed from the defendants’ point of view, provides no 
ascertainable standard for the court or jury.

If the statute is considered without the benefit of the 
construction given it in the Samuels case, supra, it could 
not be known whether the law covered peaceful and orderly 
acts or merely outwardly disorderly conduct; whether an 
actual or an imminent or merely a foreseeable disturbance 
was required; whether violence was essential and, if so, 
whether it must be actual or merely threatened; whether 
the defendants’ “purpose” must be manifested by some 
overt act or whether it may be supplied by a jury deter­
mination, discretionary or otherwise.

It is evident that this law is not “narrowly drawn to 
define and punish specific conduct,” Cantwell v. Connecticut, 
310 U. S. 296, 311. Here, as in Cantwell (310 U. S. at 308), 
the vice of the law consists in its “sweeping in a great 
variety7 of conduct under a general and indefinite charac­
terization and leaving to the executive and judicial branches 
too wide a discretion in its application.”

The opinion below cites Faulkner v. State, 166 Ga. 645, 
665, 144 S. E. 193 (1928), a case holding that abusive and 
profane language was a breach of the peace. This Court 
has upheld a prohibition aimed at such direct incitements 
to violence in a law “narrowly drawn to define and punish 
specific conduct.” Chaplinski v. New Hampshire, 315 U. S. 
568, 573. Insulting or fighting words were said to receive 
no protection as free speech because they are “no essential 
part of any exposition of ideas and are of such slight social 
value . . . ” (315 U. S. at 572). But no comparable char­



15

acterization can be given to petitioners’ conduct, whether 
it be regarded as merely playing a basketball game, or as a 
profound non-verbal expression of the impropriety of racial 
segregation in public parks.

As stated by Mr. Justice Harlan, concurring in Garner 
v. Louisiana, 368 U. S. 157, 202:

But when a State seeks to subject to criminal sanctions 
conduct which, except for a demonstrated paramount 
state interest, would be within the range of freedom 
of expression as assured by the Fourteenth Amend­
ment, it cannot do so by means of a general and all- 
inclusive breach of the peace prohibition. It must bring 
the activity sought to be proscribed within the ambit 
of a statute or clause “narrowly drawn to define and 
punish specific conduct as constituting a clear and 
present danger to a substantial interest of the State.” 
Cantwell v. Connecticut, supra (310 U. S. at 311); 
Thornhill v. Alabama, 310 U. S. 88, 105.

As this court held in Thornhill v. Alabama, 310 U. S. 88, 
97, “a penal statute . . . which does not aim specifically at 
evils within the allowable area of state control but, on 
the contrary, sweeps within its ambit other activities that 
in ordinary circumstances constitute an exercise of free­
dom of speech or of the press” brings to bear a threat 
similar to that involved in discretionary licensing of free 
expression. That opinion said:

The existence of such a statute, which readily lends 
itself to harsh and discretionary enforcement by local 
prosecuting officials, against particular groups deemed 
to merit their displeasure, results in a continuous and 
pervasive restraint on all freedom of discussion that 
might reasonably be regarded as within its purview. 
310 U. S. at 97-98.



16

Similarly here, the existence of an indefinite unlawful 
assembly law operates to deter and restrain any attempt 
by Negro citizens to exercise constitutional rights to non- 
segregated use of public facilities. The Fourteenth Amend­
ment was primarily designed to protect the civil rights 
of Negroes. Strauder v. West Virginia, 100 U. S. 303, 307. 
Such rights cannot properly be regarded as any less pre­
ferred than the First Amendment type protections incor­
porated into the Fourteenth Amendment by the due process 
clause. The right to nonsegregated use of facilities the 
government provides is so fundamental as to be protected 
both as “liberty” under the due process clause and by the 
equal protection clause of the Amendment. Cooper v. Aaron, 
358 U. S. 1, 19; cf. Bolling v. Sharpe, 347 U. S. 497.

Hague v. C. 1. 0., 307 U. S. 496, also supports the proposi­
tion that §26-5301 is unconstitutionally general and in­
definite. In Hague, supra, the right of free assembly was 
limited by a requirement that a permit be obtained from 
an official who could refuse a permit only “for the purpose 
of preventing riots, disturbances, or disorderly assemblage” 
(307 U. S. at 502, n. 1). The court held the law invalid 
on its face because, “it can thus, as the record discloses, 
be made the instrument of arbitrary suppression of free 
expression. . . . But uncontrolled official suppression of 
the privilege cannot be made a substitute for the duty to 
maintain order in connection with the exercise of the right” 
(307 U. S. at 517). And, of course, one accused under a 
general and sweeping law has no obligation to demonstrate 
that the state could not have written a different and more 
precise law constitutionally proscribing his conduct. Thorn­
hill v. Alabama, supra, at 198. Furthermore:

[I]t is the statute and not the accusation or the evi­
dence under it, which prescribes the limits of per­
missible conduct and warns against transgression.



17

Stromberg v. California, 238 U. S. 359, 368; Schneider 
v. State, 308 U. S. 147,155, 162,163. Compare Lanzetta 
v. New Jersey, 306 U. S. 451. (Ibid.)

Turning to the facts of the present case, it is equally 
apparent that §26-5301 gave no fair warning of the offense 
punished, and that it would confer unrestrained discretion 
of the exercise of constitutional freedoms.

First, there was no claim that petitioners’ conduct was, 
in itself, disorderly or offensive. The police officer testified 
to the contrary that “they were not necessarily creating 
any disorder, they were just ‘shooting at the goal,’ that is 
all they were doing. They wasn’t disturbing anything” 
(R. 50). There was no admission by the defendants of a 
purpose to disturb the public peace, and there was nothing 
in their conduct which might justify a determination that 
they had such a purpose. This is true because there was 
neither an actual disturbance of the peace, nor any evi­
dence that their conduct made such a disturbance imminent 
or even foreseeable because of its tendency to provoke a 
disorderly response from others. The only thing in the 
record touching upon the possibility that defendants’ con­
duct might have led to a breach of the peace was testimony 
by officer Thompson that:

The purpose of asking them to leave was to keep 
down trouble, which looked like to me might start— 
there were five or six cars driving around the park at 
the time, white people (sic) (R. 40).

There was an unexplained statement that “ . . . I arrested 
these people because Ave were afraid of what was going to 
happen” (R. 42). But the record contains no support for 
the policeman’s fears. There was no evidence that anyone 
in the passing automobiles even observed petitioners, and



18

certainly no evidence that these passershy did or said any­
thing to indicate that they were disturbed in any way or 
were provoked or angered by petitioners’ conduct. There 
was no evidence that any of the automobiles stopped or 
approached petitioners, or that traffic was impeded. There 
is a positive statement by the officer that this automobile 
traffic was not unusual for that time of day (R. 41).

The only other person whom the record shows to have 
observed petitioners’ conduct was the unidentified white 
lady who reported to the officers merely that colored people 
were playing basketball in the park. There was no testi­
mony by the officers that she manifested any disturbance, 
anger, or anxiety and certainly no indication that she was 
provoked to the point of creating disorder. No other per­
sons were present.10 11 School children in the nearby schools 
were not expected in the area for “at least thirty minutes” 
by the officers (R. 41).11

There is no evidence that petitioners violated any park 
rules,12 but, in any event, it appears that the arresting

10 The plain words of the statute require something in addition to 
disobedience of the officer’s orders. If this were all that was re­
quired, the statute would nevertheless be offensively indefinite. 
G arn er  v. L ou isian a , 368 U. S. 157, 204, footnote 11 (Mr. Justice 
Harlan concurring).

11 The officers did not connect their order to leave with the an­
ticipated presence of school children, nor was their order that 
petitioners leave timed to coincide with the arrival of the children. 
There was no park rule or policy prohibiting adults from using the 
park facilities when they were not being used by the children 
(R. 46); nor were any hours posted for use of the basketball courts 
(R. 44).

12 The State has argued in its “Brief in Opposition to Certiorari” 
in this Court that petitioners were arrested because they were 
“grown men” on a “children’s playground” and were dressed in 
street clothes. (See Brief in Opposition, p. 10, second paragraph.) 
But the superintendent of the recreation department testified that 
the basketball courts could be used by adults (R. 44) (and, there­



19

officer did not know the park rules and thus could not have 
predicated his command that petitioners leave or the arrest 
upon any park rule violation.13

The arresting officer expressly acknowledged that race 
was a factor in the arrests. Officer Thompson stated th a t:

I arrested these people for playing basketball in Daffin
Park. One reason was because they were negroes (R.
41). (Emphasis added.)

This testimony, of course, must be understood as it re­
lates to the evidence that Daffin Park was one which was 
customarily used by white persons, with the occasional ex­
ception of Negro children fishing and playing—but not 
on the basketball court (R. 42), as a part of a more gen­
eral local custom “to use the parks separately for the dif­

fore, petitioners were not on a playground exclusively for chil­
dren), and also that it was not improper to wear street clothes in 
unsupervised play on the haskethall courts. The witness stated that 
“if there was a conflict betwen younger people and the older people 
using the park facilities, the preference would be for the younger 
people to use them, but we have no objections to older people using 
the facilities if there are no younger people present or if they are 
not scheduled to be used by the younger people” (R. 44). The 
witness said that he would not know whether any program was 
scheduled for the time petitioners were there without referring to 
his records (R. 47).

13 See Note, 109 U. of Pa. L. Rev. 67, 81:
“It is scarcely consonant with ordered liberty that the ame­
nability of an individual to punishment should be judged solely 
upon the sum total of badness or detriment to the legitimate 
interests of the state which can be found, or inferred, from a 
backward looking appraisal of his trial record.”

And see Id . at footnote 74:
“A state could probably justify punishing most conduct 

which it desired to punish on the basis of the after-the-fact 
record, by isolating from the precisely detailed circumstances 
of the particular defendant’s acts a sufficient quantum of 
substantive evil of legitimate legislative concern to dress up 
a tolerable constitutional crime.”



20

ferent races” (R. 45). The officer’s actions tend to confirm 
his statement that race was a reason for the arrests since 
he acknowledged that he proceeded directly to the basket­
ball court to investigate upon merely being told that “col­
ored people were playing in the Basketball Court”, and 
—insofar as the record reveals—nothing more (R. 41). 
The officer did not ask the unidentified white lady who 
gave him this information how old the people playing bas­
ketball were. As he put it, “as soon as I found out these 
were colored people I immediately went there” (R. 41).

The race of the petitioners cannot validly be made a 
basis for the determination of their guilt. The mere pres­
ence of Negroes in a facility which they customarily do 
not use, cannot be regarded as criminal conduct or as evinc­
ing a purpose to violate the law. Taylor v. Louisiana, 370 
U. S. 154. It is settled that this municipally operated 
park was an area which petitioners had a right to use, 
regardless of any segregation rule or custom, Holmes v. 
City of Atlanta, 350 U. S. 879; Mayor and City Council of 
Baltimore v. Dawson, 350 U. S. 877; New Orleans City Park 
Improvement Asso. v. Detiege, 358 U. S. 54; just as this 
was clear in Taylor v. Louisiana, supra, with respect to 
interstate transportation facilities. Cf. Gayle v. Browder, 
352 U. S. 903; Boynton v. Virginia, 364 U. S. 454, 459, 460.

There was no evidence tending to show that petitioners’ 
action in conflict with the racial custom of park segregation, 
would, in the locality involved, he likely to arouse passions 
or inflame those opposed to desegregation of publicly owned 
facilities. There is no such evidence relating either to the 
particular circumstances of this case or to any general 
community condition. Here there is not even evidence of 
“restless onlookers” which was held insufficient to sup­
port such a claim in Taylor v. Louisiana, 370 U. S. 154,155.



21

The fact that Negro children had used this very park with­
out the necessity for any official intervention (though their 
presence was noted by the police and park officials), fur­
ther undermines any such speculation based on judicial 
notice of local attitudes14—even if such opposition could 
be substituted for evidence at the trial, as it clearly can­
not be under the holding in Garner v. Louisiana, 368 U. S. 
157,173, 175-176.

Even beyond this lack of evidence to provide a basis for 
a permissible inference that petitioners’ conduct engen­
dered such extreme racial hostility as to incite unlawful, 
violent opposition, it is clear that this is not enough to 
justify using the state’s police power to preserve segrega­
tion customs. Taylor v. Louisiana, 370 U. S. 154, 156, foot­
note 2; Buchanan v. Warley, 245 U. S. 60, 80, 81; Cooper 
v. Aaron, 358 U. S. 1. “For the police are supposed to be 
on the side of the Constitution, not on the side of discrimi­
nation.” Garner, supra, at 177 (Justice Douglas concur­
ring).

The only rational alternative explanation for the con­
viction, to the claim that the statute did not fairly warn 
against petitioners’ conduct, is that there was indeed no 
evidence at all to support these convictions, thus requiring 
reversal under the doctrine of Thompson v. City of Louis­
ville, 362 U. S. 199. The mere presence of Negroes on a 
customarily all-white city owned basketball court “is not, 
because it could not be” unlawful assembly. Thompson v.

14 There is, of course, no necessary consistency, even in a given 
locality in the South, between the vehemence of the attitudes of 
the white majority toward nonsegregated lunch counter service—as 
m Garner, su pra—and the same group’s attitude towards an all- 
^egro group, as here (or for that matter, even an integrated 
group) playing basketball in a city-owned facility customarily 
used by whites.



22

Louisville, 362 U. S. 199, 206, citing Lametta v. New Jersey 
306 U. S. 451. Certainly this statute does not give clear 
warning that the presence of a Negro on a customarily white 
basketball court is punishable. It is certainly not difficult 
to draft a segregation law specifically making it unlawful 
for a Negro to use a “white” park. Cf. Holmes v. City of 
Atlanta, 124 F. Supp. 290, 291-292 (N. D. Ga. 1954); aff’d 
223 F. 2d 93 (5th Cir. 1955); vacated 350 U. S. 879. But the 
well-known invalidity of such open segregation laws has 
frequently led to the use of Aesopian language to accom­
plish the same purpose,15 or the use of catch-all laws to 
the same end. Garner v. Louisiana, 368 U. S. 157.16

Petitioners’ activity, if not a “demonstration.” in the 
sense that a sit-in has become a well recognized form of 
protest (and there is nothing in the record to indicate 
whether petitioners went to Daffin Park as demonstrators 
to test segregation or merely to play basketball), was never­
theless sufficiently non-conformist to be regarded as evi­
dencing petitioners’ conviction that racial exclusion from 
a publicly owned park is improper. Such conduct within 
the area of protected liberty under the Fourteenth Amend­
ment, may not constitutionally be reached by a vague and 
indefinite law which does not evince any legislative judg­
ment that it represents so clear and present a danger that 
it should be criminally proscribed. Cantwell v. Connecticut, 
supra; Garner v. Louisiana, 368 U. S. 157, 196-207 (Mr. 
Justice Harlan concurring).

15 Compare the ordinance in B om an  v. B irm in gh am  Transit Co., 
280 F. 2d 531, 532 (5th Cir. 1960), which replaced an overt 
segregation requirement with a mandate of obedience to bus drivers’ 
orders.

16 The Swedish writer, Gunner Myrdal, noticed this in his book 
published 18 years ago saying that “ . . . policemen in the South 
consider the racial etiquette as an extension of the law, and the 
courts recognize ‘disturbance of the peace’ as having almost un­
limited scope,” Myrdal, A n  A m erica n  D ilem m a, 618 (1944).



23

Finally, the State’s suggested construction of §26-5301 
renders it even more indefinite. The “Brief in Opposition 
to Certiorari,” p. 12, suggests that the law does not require 
criminal intent at all, saying :17

Thus it is not necessary to show whether the petitioners 
actually intended to create a breach of the peace to 
convict them.

What does “purpose” refer to if it does not refer to 
“actual intent”? If this construction of the law is correct, 
and no real criminal intent is required under §26-5301 to 
convict a person for an act admittedly not blameworthy 
per se, Georgia has denied due process. This would be an 
“indiscriminate classification of innocent with knowing ac­
tivity [which] must fall as an assertion of arbitrary power” 
and which “offends due process.” Wieman v. TJpdegraff, 
344 U. S. 183, 191.

n.
The Judgment Below Does Not Rest Upon Adequate 

Non-Federal Grounds for Decision.

Initially it should be emphasized that the court below 
indisputably did consider and reject petitioners’ due process 
claim under the Fourteenth Amendment. The State has 
never argued to the contrary either in its brief in opposition

11 In connection with this the “Brief in Opposition,” p. 12, per­
haps harmlessly misquotes C a n tw ell v. C on n ecticu t, 310 U. S. 296, 
309. Not so harmlessly it ignores the impact of the following 
sentence pointing out that practically all such decisions holding 
acts likely to provoke disorder to be a breach of the peace 
“even though no such eventuality [disorder] be intended”, 
mvolved “profane, indecent or abusive remarks directed to the 
person of the hearer.”



24

to certiorari or in the court below.18 The court below con­
cluded its discussion of the due process vagueness issue 
(R. 55-58) by asserting: “However, by applying the well- 
recognized principles and applicable tests above-stated, we 
find no deprivation of the defendants’ constitutional rights 
under the Fourteenth Amendment of the United States 
Constitution” (R. 57-58).

The only potential area of dispute concerns whether this 
Court may consider the facts of petitioners’ case in decid­
ing the constitutional claim. This potential conflict does 
not arise because the court below ever said that it was pro­
hibited from looking at the facts of the case. It did not so 
state; there is only an implication that this is so because 
the opinion was written as an abstract discussion of the 
extent to which §26-5301 was indefinite without reference 
to the facts of this case, or any other case; because the 
court below ruled that it would not appraise the facts re­
lating to another and essentially different constitutional 
claim raised in the demurrer—the claim that the arrest was 
the product of discriminatory law enforcement designed to 
compel racial segregation in public parks; and because the 
court ruled that it would not consider petitioners’ claim of 
error in the overruling of the motion for new trial.

The conflict over this limited issue is indeed only “poten­
tial” for the State has never argued either in the court 
below nor in this Court that no consideration may be given 
to the facts of the record in deciding the vagueness issue. 
To the contrary, indeed, the State has consistently argued 
that petitioners’ acts were criminal under the law and that 
it gave them fair warning.19

18 Petitioners have deposited with the Clerk of this Court certified 
copies of all briefs filed in the Supreme Court of Georgia.

19 See “Brief in Opposition to Certiorari,” p a ss im ;  see also, the 
State’s “Brief of Defendant-in-Error” in the court below.



25

However, in the event that this matter is viewed by this 
Court as having any significance, petitioners present the 
following to demonstrate that in the circumstances of this 
case no significant limitation can be placed upon this Court’s 
review because of any state procedural rule.

As has been said before, petitioners’ due process vague­
ness claims were raised in both the demurrer (R. 11) and 
the motions for new trial (R. 17, et seq.). The vagueness 
objections were thus made both before and after the evi­
dence against petitioners was adduced.

The Supreme Court of Georgia ruled that it would not 
consider the motion for new trial because it read petitioners’ 
brief as abandoning the objection to the overruling of the 
motion for new trial. The opinion below acknowledged (R. 
54) that defendants’ brief did contain as one of three “Is­
sues of Law” the following: “Did the court commit error 
in overruling plaintiff’s-in-error motion for new trial?” 20 
But the court went on to find an abandonment of this claim 
asserting that “there was no argument, citation or author­
ity, or statement that such grounds were still relied upon”, 
and that the point must be treated as abandoned under the 
applicable rule laid down in Henderson v. Lott, 163 Ga. 326, 
136 S. E. 403.21

The court below thus found an implied waiver of a fed­
eral constitutional right. There was no assertion that peti­
tioners made any expressed abandonment of the claim

•° “Brief of Plaintilf-in-Error”, in court below, p. 6.
21 The opinion below makes no reference to Section 6-1308, Ga.

Code Ann., providing:
“6-1308. Q u estion s to  be co n sid ered .—All questions raised 

in the motion for new trial shall be considered by the appellate 
court except where questions so raised are expressly or im­
pliedly abandoned by counsel either in the brief or upon oral 
argument. A general insistence upon all the grounds of the 
motion shall be held to be sufficient. (Acts 1921, pp. 232, 233.)”



26

either in the brief or in oral argument. However, a fair 
reading of petitioners’ brief filed in the court below does 
not support even the theory of implied abandonment. Peti­
tioners’ brief in the court below contained a portion labelled 
“Argument and Citation of Cases” which was not sub­
divided,22 and which did argue that the law was vague mak­
ing particular references to the facts in this record,23 and 
did refer to appropriate decisions of this Court.24

The Georgia Court of Appeals has held that the mere 
citation of one applicable decision of that court was suffi­

22 Nothing in the rules of the Supreme Court of Georgia requires 
any subdivision of argument among the assigned errors. Rule 14 
of the Georgia Supreme Court (printed in Section 24-4515, 6a. 
Code Ann.) states:

“C o n ten ts  o f b r ie f  o f p la in tiff  in  erro r.”—The brief of the 
plaintiff in error shall consist of two parts:

(1) Part one shall contain a succinct but accurate statement 
of such pleadings, facts, assignments of error, and such other 
parts of the bill of exceptions or the record as are essential to 
a consideration of the errors complained of.

(2) Part one shall also contain succinct and accurate state­
ments of the issues of law as made by the errors assigned, 
and reference to the parts of the record or bill of exceptions 
necessary for consideration thereof.

(3) Part two shall contain the argument and citation of 
authorities.

23 See “Brief of Plaintiffs in Error,” pp. 7-10. One example of 
such argument appears at p. 8:

“Plaintiffs-in-Error could not possibly have predetermined 
from the wording of the statute that it would have punished 
as a misdemeanor an assembly for the purpose of playing 
basketball. It follows as a matter of course that if the act 
committed was not punishable, then the peace officer would not 
have the authority to command their dispersal. To be arrested 
and convicted pursuant to said statute denies to the Plaintiffs- 
in-Error due process of law as secured to them by the Four­
teenth Amendment to the United States Constitution.”

24 Decisions of this Court on vagueness issues cited in the “Brief 
of Plaintiffs in Error” were U n ited  S ta te s  v. B rew er, 139 U. S. 
278; C on n ally  v. G eneral C o n stru c tio n  Co., 269 U. S. 385, 393; 
W in te rs  v. N ew  Y o rk , 333 U. S. 507.



27

cient argument of an assignment of error to prevent its 
being treated as abandoned, even absent a clear statement 
that the point was relied upon. Roberts v. Baker, 57 Ga. 
App. 733, 735, 196 S. E. 104. But here there is even more, 
for the argument begins with a statement that the “princi­
pal question” was raised by the overruling of the demurrer 
(Brief of Plaintiffs in Error, p. 7), thus, plainly implying 
that this was not the only question, but merely the chief, 
foremost, or highest in importance.25

It is submitted that the basis for this holding of abandon­
ment or waiver of an aspect of a fundamental constitutional 
defense which is otherwise conceded to have been pre­
served, is so tenuous and unsupported as to compel the 
view that the court below did not exercise due regard for 
the general doctrine that every reasonable presumption is 
to be indulged against the waiver of a constitutional right. 
Cf. Glasser v. United States, 315 U. S. 60, 70.

Even beyond all this, if it be assumed arguendo that the 
procedural rules applied below must limit this Court’s con­
sideration of the petitioners’ due process vagueness claim 
to any extent, it by no means necessarily follows that this 
Court is compelled to consider the law in a completely 
sterile and abstract fashion, blinding itself to the uses to 
which this law in all its generalities can be put, and has 
been put in the only other reported application of it. 
See e.g., Samuels v. State, 103 Ga. App. 66, 118 S. E. 2d 
231 (1961); Martin v. State, 103 Ga. App. 69, 118 S. E. 2d 
233 (1961). And since even though the Court below may 
not have discussed the evidence, it did have the full record 
before it, this Court should not ignore the fact that the 
very “judgment of conviction” represents in a real sense

■5 See definition of “principal”, adjective, in Webster’s N ew  
International D ic tio n a ry , p. 1966 (2d ed.), and Black’s L a w  D ic ­
tionary, p. 1355 (4th ed. 1951).



2 8

“a controlling construction of the statute”, Bailey v. Ala­
bama, 219 U. S. 219, 235; Taylor v. Georgia, 315 U. S. 25, 
30.

The appellees argue in the “Brief in Opposition to Cer­
tiorari” that this Court may pass upon federal issues where 
the state court has refused to entertain them only if the 
State has applied a procedural rule inconsistently. But this 
Court has found such refusals unreasonable for reasons 
other than inconsistent application. Staub v. Baxley, 355 
U. S. 313; Terre Haute I. R. Co. v. Indiana, 194 U. S. 579, 
589; Union P. R. Co. v. Public Service Commission, 248 
U. S. 67. Indeed, this Court has rejected attempts to limit 
the scope of its review on the theory that denials of due 
process must be ignored when, although they appear clearly 
from the proceedings, objections made were not renewed 
after the denial of due process became manifest. See Blacb 
burn v. Alabama, 361 U. S. 199, 209-210; Brown v. Missis­
sippi, 297 U. S. 278, 286-287.

Any state avoidance of federal constitutional issues 
raised by a defendant in a criminal proceeding must meet 
minimum standards of intrinsic fairness. It is submitted 
that the action of the court below in limiting consideration 
of the due process vagueness issue fails to meet such stand­
ards, and is as much a denial of due process as an er­
roneous decision on the merits. Lawrence v. State Tax 
Comm., 286 U. S. 276, 282.



29

CONCLUSION

For the foregoing reasons, it is respectfully submitted 
that the judgment below should be reversed.

Respectfully submitted,

J ack Greenberg 
Constance B aker Motley 
L eroy D. Clark 
J ames M. N abrit, III  

10 Columbus Circle 
New York 19, New York

B. Clarence Mayfield 
E. H. Gadsden

458% West Broad Street 
Savannah, Georgia

Attorneys for Petitioners











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