Gantt v. Clemson Agricultural College of South Carolina Appellant's Brief

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    I n the

Hutted ^tateu ( ta r t  nf Appeals
F or the F ifth Circuit 

No. 20,372

Samuel Bailey, et al.,

—v.-
Appellants,

J oe T. P atterson, et al.,

Appellees.

BRIEF FOR APPELLANTS

Constance Baker Motley 
J ack Greenberg 
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, New York

B. J ess Brown
1105% Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants



I N D E X
PAGE

Statement of the Case ..............................................  1
A. Procedural Summary......................................... 1
B. The Evidence Prior to Ruling by Supreme

Court ..................................................................  4
1. State of Mississippi .......... ......................... 5
2. City of Jackson ........................................... 6
3. Jackson Municipal Airport Authority ......  7
4. Continental Southern Lines, Inc. (Trail-

ways) ............................................................. 7
5. Southern Greyhound Lines ......................... 9
6. Illinois Central Railroad, Inc.......................  10
7. Jackson City Lines, Inc...............................  10

C. The Supreme Court Decision............................  11
D. District Court Findings, Conclusion and Judg­

ment of May 3, 1962 ........................................... 11
E. The Evidence After District Court’s Ruling of

May 3, 1962 .........................................................  12
F. District Court Supplemental Findings, Conclu­

sions and Judgment of July 25, 1962 .............. 15
G. The Evidence Following District Court’s Rul­

ing of July 25, 1962 ........................................... 16
H. District Court’s Amendments to Supplemental 

Findings, Conclusions and Judgment of August
24, 1962 ..............................................................  16

Specifications of E rro rs..........................................—- 17



11

PAGE

Argument .......................................................................... 18

I. The District Court by refusing to grant injunc­
tive relief failed to carry out the U. 8. Supreme 
Court’s mandate, enabled discriminatory prac­
tices to continue, and thereby deprived appel­
lants of an enforceable right to use public travel 
facilities in Mississippi on a nonsegregated
basis .................................................................... 18

II. The lower court’s failure to recognize this case 
as a class action and grant relief for the class 
denies effective relief to appellants....... .......... 24

Conclusion........................................................................  26

Appendix

Findings of Fact, Conclusions of Law and Declara­
tory Judgment, May 3, 1962 ...................................  la

Supplemental Findings of Fact, Conclusions of Law 
and Declaratory Judgment, July 25, 1962 ..........  9a

Order Amending Supplemental Findings of Fact, 
Conclusions of Law, Declaratory Judgment, and 
Letter, August 24, 1962 .........................  14a

Citations
Cases:

Bailey v. Patterson, 199 F. Supp. 595 (S. D. Miss.
1961), 368 IT. S. 346; 369 U. S. 31 (1962) .............. 2,11

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958);
287 F. 2d 750 (5th Cir. 1961) ................................ 18,19

Boman v. Birmingham Transport Co., 280 F. 2d 531 
(5th Cir. 1960) ......................................................... 19



Ill
PAGE

Boynton v. Virginia, 364 U. S. 454 (1960) .............. 18
Brooks v. City of Tallahassee, 202 F. Supp. 56 (N. D.

Fla. 1961) ........................................... ...................  19
Brown v. Board of Education, 347 U. S. 483, 495

(1954) ...................................................................... 24
Brunson v. Board of Trustees of Clarendon County,

311 F. 2d 107 (4th Cir. 1962) .......... .............................................. 24, 25
Burton v. Wilmington Parking Authority, 365 U. S.

715 (1961) .................................................    19
Bush y. Orleans Parish School Board, 242 F. 2d 156,

165 (5th Cir. 1957) .................................................. 24
Bush v. Orleans Parish School Board, 187 F. Supp.

42 (E. D. La. 1960) .................................................. 22
Bush y. Orleans Parish School Board, 308 F. 2d 491,

499 (5th Cir. 1962) .................................................. 25

Chance v. Lambeth, 186 F. 2d 879 (4th Cir. 1951),
cert, denied, 341 U. S. 941 (1951) ........................  19

Clark v. Thompson, No. 19961 (5th Cir. Mar. 6, 1963) 25
Clemons v. Board of Education of Hillsboro, Ohio,

228 F. 2d 853, 857 (6th Cir. 1956), cert, denied, 350 
U. S. 1006 ................................................................  23

Derrington v. Plummer, 240 F. 2d 922 (5th Cir. 1956), 
cert, denied, 353 U. S. 924 (1957) ........................  22, 24

Evers v. Dwyer, 358 U. S. 202 (1958) ........................  24

Gayle v. Browder, 352 U. S. 903 (1956) ................. 18,19, 20

Henry v. Greenville Airport Commission, 284 F. 2d 
631 (4th Cir. 1960) .................................................. 22

I. C. C. and United States v. City of Jackson, 206 F.
Supp. 45 (S. D. Miss. 1962) 14



iy
PAGE

Lewis v. Greyhound Corp., 199 F. Supp. 210 (M D 
Ala. 1961) ..........................................................

Meredith v. Pair, 298 P. 2d 696; 305 P. 2d 343 (5th 
Cir. 1962) ...................

Morgan v. Virginia, 328 U. S. 373 (1946) .................

NAACP v. St. Louis-San Francisco Railway Co., 297
I. C. C. 335 (1955) ..............................

20

18, 23 
18

20

Potts v. Flax, F. 2d----- (5th Cir. Feb. 6, 1963) 24, 25

Shuttlesworth v. Gaylord, 202 P. Supp. 59 (N. D. Ala.
1961), affirmed, Hanes v. Shuttlesworth, 310 P. 2d 
303 (5th Cir. 1962) .......................................... 26

Union Tool Company y. Wilson, 259 U. S. 107, 112 .... 22
United States v. City of Montgomery, 201 P. Supp.

590, 594 (M. D. Ala. 1962) ...................................... ’ 19
United States v. Lynd, 301 F. 2d 818 (5th Cir. 1962) 23
United States v. Parke, Davis & Co., 365 U S 125 

(1961) ...................................................................... 22
United States v. W. T. Grant Co., 345 U. S 629 633

(1953) ..............................................................   22
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961), 

cert. den. 369 U. S. 850 ........................ ’ oq

Statutes, Regulations, and Rules

Mississippi Code, Sections:
2351 .....................................
2351.5 ..........................
2351.7 ....................



V

PAGE

4065.3 ....................................................................  2
7784 .....................................................................  1
7785 ........................................................................ 1
7786 ........................................................................ 1
7786-01 ..................................................................  1
7787.5 ....................................................................  1

Jackson City Ordinance, Jan. 12, 1956, Minute Book,
“FF ”, p. 149......  .....................................................  1,19

Regulations
49 C. F. R. 1802 ................................................. 19

Rules
F. R, C. P. 23(a)(3) ............................................  24



I k the

Hutted States Olmtrt nf Appeals
F ob the F ifth Circuit 

No. 20,372

Samuel Bailey, et al., 

—v.—
Appellants,

J oe T. P atterson, et al

Appellees.

BRIEF FOR APPELLANTS

Statement o f the Case

A. P rocedu ra l S u m m ary

This case was brought by appellants, three Negro resi­
dents of' Jackson, Miss., on June 9, 1961, as a class action 
to end state-imposed racial segregation in public trans­
portation facilities in the City of Jackson and State of 
Mississippi (R. Vol. I, 2-16). When the suit was filed, 
Mississippi and the City of Jackson, required and enforced 
racial segregation in intrastate and interstate transporta­
tion and related terminal facilities by state statutes and 
a city ordinance.1 The State expresses its general policy in

1 Title 11, Sections 2351, 2351.5 and 2351.7, and Title 
7734, 7785, 7786, 7786-01, 7787.5, Mississippi Code
(1942) ; Jackson 
“F F ”, p. 149.

City Ordinance, Jan. 12, 1956,

18, Sections 
Annotated 

Minute Book



2

17 Miss. Code, Ann., Section 4065.3 which is : “to prohibit 
by any lawful, peaceful, and constitutional means, the 
causing of a mixing or integration of the white and Negro 
races” in public facilities. The suit seeks an injunction 
against the enforcement, throughout the state, of such stat­
utes and enforcement of the city ordinance. This suit also 
seeks to enjoin defendant common carriers, operating in 
the City and/or State, including the Jackson City Lines, 
Inc., the Illinois Central Railroad, the Continental South­
ern Lines and the Southern Greyhound Lines, from main­
taining segregated seating on their carriers and/or sepa­
rate depots and services for passengers wherever located 
in the State. Finally, the suit seeks injunctive relief against 
segregated facilities in the Jackson Municipal Airport.

A three-judge court was designated (R. Vol. I, 20), and 
the case was heard on September 25-28, 1961, following 
which the court ruled 2-1 on November 17, 1961, to invoke 
the doctrine of federal abstention “to give the State Courts 
of Mississippi a reasonable opportunity to act.” 199 F. 
Supp. 595 (R. Vol. IV, 705-06). On appeal, the United 
States Supreme Court in a per curiam opinion on Febru­
ary 26, 1962 vacated and remanded the case. 369 U. S. 31 
(R. Vol. IV, 714). The Court ruled that the question 
whether a state may require racial segregation on inter­
state or intrastate transportation facilities is so well settled 
that a three-judge court is not required.2 And on March 
23, 1962, the case was returned to the District Court “for 
expeditious disposition of appellant’s claims of right to 
unsegregated transportation service” (R. Vol. IV, 718).

2 Plaintiffs’ motion for an injunction enjoining certain state 
court breach of the peace prosecutions to which these appellants 
were not parties, denied by the District Court, and the United 
States Supreme Court pending appeal, 368 U.S. 346, was affirmed.



3

Upon remand, appellants, on April 19, 1962, moved in 
the District Court for immediate relief in accordance with 
the opinion and judgment of the Supreme Court (E. Vol. 
IV, 719). The motion prayed for injunctive relief against 
all appellees as set forth in the amended complaint. Appel­
lants also filed a proposed judgment (E, Vol. IV, 745).

The District Court entered findings of fact and conclu­
sions of law on May 3, 1962, based on which, all injunctive 
relief was denied. A declaratory judgment issued by that 
court (E. Vol. IV, 740) stated merely that each of the ap, 
pellants has a right to unsegregated transportation service 
from the appellees. Class relief was denied. In addition, 
all Mississippi segregation statutes and the city ordinance 
attacked in the case were declared void as violative of the 
Fourteenth Amendment. The court retained jurisdiction in 
the case for “the entry of such further orders and relief as 
may be subsequently appropriate” (E. Vol. IV, 741).

Appellants promptly filed motions to Amend the Find­
ings of Fact and for Further Eelief (E. Vol. V, 814), and 
filed in support thereof affidavits concerning continuing 
segregation (E. Vol. V, 751-784).

On May 31, 1962, a hearing was held on this motion (E. 
Vol. V, 813-48), following which the District Court on July 
25, 1962 filed supplemental findings of fact and conclusions 
of law (E. Vol. V, 785). Based on these findings a supple­
mental declaratory judgment was issued again merely af­
firming the right of the three appellants to unsegregated 
service, and again denying class relief and injunctive relief 
(E. Vol. V, 790). The order made no mention of appellants’ 
complaint that the carriers were continuing to maintain 
separate waiting rooms outside of which the City is con­
tinuing to maintain racial signs.

On August 4, 1962, appellants for the third time moved 
the court to further amend and supplement its findings of



4

fact alleging that Negroes were still being discriminated 
against in the Jackson Municipal Airport restaurant (R. 
Vol. V, 791). Attached to this motion were several affi­
davits reporting instances of discrimination at the Airport 
restaurant (R. Vol. V, 793-812). On August 24, 1962, the 
District Court entered an order sustaining in part and 
overruling in part appellants’ motion. Based on its find­
ings the court concluded that all travel facilities were avail­
able to plaintiffs without discrimination of any kind and 
that no injunctive relief was required (R. Vol. V, 848-49).3

The plaintiffs appealed on August 30, 1962 stating as 
the basis therefor: (a) the court’s refusal to grant injunc­
tive relief against the defendants, (b) the court’s refusal 
to recognize the class nature of the action by limiting relief 
granted to the three named plaintiffs, and, (c) the court’s 
refusal to enjoin the City of Jackson from maintaining signs 
designating the dual waiting rooms of the Illinois Central 
Railroad, Continental Southern Lines and Southern Grey­
hound Lines, as “colored” or “white” (R. Vol. V, 852).

B. The E vidence P r io r  to  R u ling  by  S u p rem e Court

The bulk of the evidence introduced in support of appel­
lants’ claims was obtained during a three day hearing before 
the three-judge District Court in September 1961 (R. Vol. 
I, 66-Vol. IV, 627). At this hearing, the three appellants, 
all Negro residents of Jackson, Mississippi, testified that 
they had experienced racial segregation while using vari­
ous carriers and facilities of the appellees. They indicated 
that they sought through the case to obtain relief from 
such d isc rim in a to r  travel practices not only for them­
selves, but for all Negroes similarly situated (R. Vol. I,

3 The findings of fact, conclusions of law and declaratory judg­
ments entered by the court below on May 3, 1962, July 25, 1962 
and August 24, 1962 are set forth in the Appendix to this brief.



5

109, 121, 141). None of the appellants had been arrested 
or threatened with arrest for breaching any of the Missis­
sippi segregation statutes, and none had attempted to vio­
late them (R. Yol. I, 120, 142). However, appellant Broad­
water as early as 1957 wrote to each carrier, complaining 
of its segregation policy, but to no avail (Pis. Exhs. 1-8, 
R. Yol. I, 96-99).4

In addition to appellants, several witnesses, all members 
of the class on whose behalf this action is prosecuted, 
testified concerning the means by which racial segregation 
has been imposed upon them and others throughout the 
State in the use of the various travel facilities involved in 
this suit. Representatives of the State, City, Airport Au­
thority and the common carriers were also called to testify, 
and information obtained via discovery procedures from 
some of the appellees was introduced, all of which evidence 
confirmed the allegations of segregation in Mississippi 
travel facilities.

1. S tate  o f  M ississippi.

Attorney General Joe T. Patterson testified that he was 
familiar with the state travel segregation statutes (R. Vol. 
Ill, 411), and indicated that “if conditions arise to such a 
point that I thought it necessary to bring them in effect 
• • •” he would enforce them (R. Vol. Ill, 425, 433). He 
denied having prosecuted or threatened to prosecute any­
one under them (R. Vol. Ill, 416, 420), but admitted that 
he had certainly not made any public announcement or 
written any opinions as attorney general to the effect that 
these laws would not be enforced (R. Yol. Ill, 439).

4 On cross-examination, the plaintiffs admitted that not all mem­
bers of their class agreed with their action, and indicated that 
they had not told others in the class of their plans to file suit 
(E. Yol. I, 109-110, 121, 141).



6

2 . City o f  Jack so n .

The Mayor of the City of Jackson testified that the city 
ordinance enacted in 1956 requiring segregation of the 
races in travel facilities reflected the city’s policy of main­
taining peace and prosperity by a “separation” of the races 
(R. Vol. II, 348, 351-52). Chief of Police, William D. Ray- 
field, testified that racial signs over local terminal facilities 
were erected at his direction in 1956 in order to “direct 
the races to their respective waiting room facilities and 
also to assist the police department in maintaining peace 
and order” (E. Vol. II, 359). He testified further that 
signs were placed pursuant to the city ordinance, but that 
to his knowledge no Negro has ever been arrested for vio­
lating the signs, per se (E. Vol. II, 359-60).

Appellants introduced into evidence Exhibits 32, 33, 34 
and 35, four volumes of approximately 190 affidavits and 
judgments of breach of the peace convictions of persons 
arrested in waiting rooms of defendant carriers while 
peacefully testing the segregation policy during the sum­
mer of 1961 (E. Vol. Ill, 482).

Jackson Police Chief Bayfield acknowledged that Negroes 
and whites have been arrested by city police in the terminals 
and charged with breach of the peace (E. Vol. II, 367-69). 
Captain J. L. Eay, who made many of the arrests, admitted 
that the persons arrested were not loud or otherwise dis­
orderly but justified their arrest by claiming that other 
persons, not arrested, threatened to cause trouble unless 
these persons were removed. Captain Eay also claimed 
the police officers exercised their judgment by removing 
what he referred to as the “root of the problem” (E. Vol. 
II, 370-75).



7

3. Jack so n  M un ic ipal A irp o r t  A u th o rity .

At the time this suit was filed, the Authority operated 
segregated restroom facilities, water fountains (R. Vol. I, 
101, Vol. II, 232), and leased the restaurant (Exh. 27, R. 
Vol. II, 237) to a lessee who admittedly discriminated 
against Negro patrons (R. Vol. II, 210-12).

Witness Medgar Evers, a field representative of the 
National Association for the Advancement of Colored 
People (NAACP), testified that he had observed the racial 
signs in the airport waiting room, and had been refused 
service in the restaurant by a waitress who told him that 
they didn’t serve colored people (R. Vol. II, 215). Be­
cause of the humiliation and futility of seeking service, 
he has never attempted to eat in the restaurant again al­
though he uses the airport fifteen to twenty times a year 
(R. Vol. II, 229).

The lessee of the Airport restaurant, Cicero Carr, testi­
fied that Negroes were served only at a counter located in 
a back room (R. Vol. II, 209-11).

4 . C on tin en ta l S o u th e rn  L ines, Inc. (T ra ilw ay s).

The Trailways Bus Company admitted that its terminal 
in Jackson, Mississippi, contains two separate waiting 
rooms with separate facilities, and that a sign over the out­
side door of each waiting room, installed pursuant to 
Mississippi statute, designates the waiting room for either 
white or colored passengers. Signs placed on the sidewalk 
in front of each waiting room further designate the waiting 
room for white or colored by order of the police depart­
ment. Trailways denies having placed or maintained the 
sidewalk signs. In addition to the Jackson terminal, Trail- 
ways admitted operating or utilizing terminal facilities in 
18 Mississippi communities: Biloxi, Canton, Columbia,



Columbus, Corinth, Greenville, Greenwood, Grenada, Gulf­
port, Hattiesburg, Laurel, Meridian, Natchez, Oxford, 
Starkville, Tupelo, Vicksburg and Winona (E. Vol. I, 183).

Trailways Bus Lines received complaints about its segre­
gated terminal facility in Jackson, as far back as 1957 
(Pis. Exh. 7, E. Vol. I, 99). In 1958, Medgar Evers was 
ordered to the back of a Trailways Bus by the driver (E. 
Vol. II, 216). When he refused, the driver called a police­
man (E. Vol. II, 217). After conversing with the police 
officers, Evers was permitted to reboard the bus and again 
seated himself in the front (E. Vol. II, 219). The bus 
started on its way but was halted by a taxicab driver sev­
eral blocks from the terminal, who boarded the bus and 
physically attacked Evers in the presence of the bus driver 
(E. Vol. II, 220).

Johnny Frazier, a high school student, reported that a 
Trailways Bus driver cursed him for refusing to move to 
the rear and as a result of complaints made by this driver 
to the police in Winona, Mississippi, Frazier was taken 
from the bus, beaten into unconsciousness, thrown in jail, 
and charged with breach of the peace (E. Vol. II, 282-85).

Mrs. Mildred Cozy purchased reserve seats on a Trail- 
ways Bus from Jackson to Vicksburg, Mississippi which 
seats were not honored by the hostess on the bus who forced 
her to sit in the rear (E. Vol. II, 330).

Thomas Armstrong, a college student was arrested when, 
having purchased a bus ticket from Jackson to New Orleans, 
he entered the Trailways Bus terminal marked for white 
passengers (E. Vol. II, 261). Armstrong was subsequently 
tried and convicted for a breach of the peace although there 
was no evidence of any disturbance by him (E. Vol. II, 268- 
69, Exh. 28, E. Vol. II, 271).



9

5. S o u th e rn  G rey h o u n d  L ines,

The Greyhound terminal in Jackson is divided into two 
separate self-sufficient waiting rooms, over the door to each 
of which, pursuant to state statute, there is a sign designat­
ing the waiting room for either white or colored intrastate 
passengers. Signs on the sidewalk in front of each waiting 
room, not placed or maintained by the defendant, designate 
the room for colored or white only, by order of the police 
department. This defendant admitted operating or utiliz­
ing terminal facilities in 15 other Mississippi communities: 
Biloxi, Brookhaven, Clarksdale, Columbus, Greenville, 
Greenwood, Gulfport, Hattiesburg, Laurel, McComb, Merid­
ian, Natchez, Tupelo, Vicksburg, Yazoo City (R. Vol. I, 
178-79).

Witness Johnny Frazier reported that in 1960, he boarded 
a Greyhound Bus in Atlanta bound for Mississippi and 
was ordered by the driver to move to the rear (R. Vol. II,
279) , and was again asked to move to the rear by another 
driver when the bus arrived in Montgomery (R. Vol. II,
280) .

In September 1961, witness Helen O’Neill boarded a 
Greyhound Bus in Jackson intending to go to Clarksdale, 
Mississippi (R. Vol. II, 304), the driver intimated that she 
would have to move to the rear, she refused and the driver 
summoned a policeman who ordered her to the rear and 
arrested her when she again failed to move (R. Vol. II, 
307-08).

Mrs. Vera Pigee, intending to ride a Greyhound Bus 
from Clarksdale, Mississippi to Memphis, Tennessee, was 
not permitted to board the bus by the driver until white 
patrons had boarded (R. Vol. II, 324-26).



10

6. Illino is  C en tra l R a ilro a d , Inc.

The Illinois Central train depot in Jackson, Mississippi 
contains separate waiting rooms and facilities for Negro 
and white passengers. Each waiting room is designated 
for either the colored or white race by signs placed both 
on the sidewalk in front of each facility and in the railroad 
terminal at the bottom of the stairs leading from the train, 
which signs the Railroad denies any “maintenance, super­
vision or control thereasto.” Illinois Central maintains a 
depot or terminal facility at each Mississippi community 
where Illinois Central Railroad trains make regular stops, 
which stops are set forth in the copy timetable (Ptls. Exhs. 
21-24, R. Vol. 1,196).

It appears that the railroad actively segregated its pas­
sengers both in the terminal and on the trains. Appellant 
Broadwater reports having been subjected to such segre­
gation in 1957 (R. Vol. I, 76-8), and wrote a letter of com­
plaint to the railroad (R. Vol. I, 80).

In August 1961, Wilma Jean Jones, a high school stu­
dent, reported that she and two companions intending to 
travel from Clarksdale, Mississippi to Memphis, Tennes­
see on the Illinois Central were refused tickets by a railroad 
employee because they were in the waiting room reserved 
for whites (R. Vol. II, 316-20). Local police were called 
and they were arrested and placed in jail. Miss Jones was 
15 years old at the time (R. Vol. II, 321).

7. Jack so n  City L ines, Inc.

When this suit was filed each Jackson City Lines Bus 
carried a sign directing Negroes to seat from the rear and 
whites to seat from the front (R. Vol. I, 102). The Super­
intendent admitted that signs designate certain sections 
of the bus for Negro and white (R. Vol. II, 197-98), and



11

indicated that signs were required, not by company policy, 
but by the City ordinance (R. Vol. II, 199). However, a 
driver testified that the signs have been used for 25 years 
(R. Vol. Ill, 521), and under company policy, if a passen­
ger seats himself in a section reserved for the other race 
and refuses to move at the direction of the driver, the driver 
is instructed to refuse to move the bus (R. Vol. II, 200-201).

Doris Grayson, a college student, testified that in April 
1961 she and two companions were arrested when they sat 
in the section reserved for whites and refused to move at 
the order of the bus driver and police (R. Vol. II, 244-45, 
247-49). The group was subsequently charged and con­
victed of breach of the peace and fined $100 and 30 days 
in jail (R. Vol. II, 250).

C. T he S u p rem e C ourt D ecision

Based on the evidence summarized above, the United 
States Supreme Court in its per curiam opinion of Febru­
ary 26, 1962 (R. Vol. IV, 714-717), stated: “We have 
settled beyond question that no State may require racial 
segregation of interstate or intrastate facilities . . . the 
question is no longer open; it is foreclosed as a litigable 
issue” (R. Vol. IV, 716). The Court then remanded the 
case to the District Court “for expeditious disposition, in 
light of this opinion, of the appellants’ claims of right to 
unsegregated transportation service” (R. Vol. IV, 717).

D. D istric t C ourt F indings, Conclusion and  
Judgm ent o f May 3 , 1 9 6 2

The District Court, however, when it entered its find­
ings of fact and conclusions of law on May 3, 1962, denied 
all injunctive relief sought by appellants. The court below 
found that appellants were neither arrested nor threatened 
with arrest under state segregation or breach of the peace



12

statutes, that they did not represent a class, and that the 
evidence of racial discrimination in city and state travel 
facilities indicated no effort to control the travel activities 
of Negroes, but constituted merely “isolated instances of 
improper behavior on the part of certain law enforcement 
officers” (R. Yol. IV, 734).

E. The E vidence A fter  D istric t C ourt’s 
R uling  of May 3 , 1 9 6 2

Following the failure of the District Court to grant any 
injunctive relief to appellants or their class in its order 
filed May 3, 1962 (R. Vol. IV, 740-41), appellants filed a 
motion for further relief alleging continuing racial discrim­
ination in appellees’ travel facilities, in response to which 
certain of the appellees filed affidavits of their own.

The manager of the Jackson City Bus Lines averred that 
he had removed all racial signs from his buses and had 
advised all drivers to operate the buses without regard to 
race (R. Vol. IV, 727-28). Officials of the Greyhound and 
Trailways Bus Lines each reported that all racial signs 
previously placed on their terminals in compliance with 
state statute had been removed by November 1, 1961, in 
accordance with a new regulation of the Interstate Com­
merce Commission (R. Vol. IV, 729-31).

On May 18, 1962, appellant Broadwater inspected travel 
facilities in Jackson and reported to the court that in the 
Municipal Airport terminal signs designated water foun­
tains and rest rooms as “White” and “Colored”, a Jackson 
City Lines bus contained a sign “City Ordinance—White 
passengers take front seats. Colored passengers take rear 
seats”, and the terminals of the Illinois Central Railroad, 
the Greyhound Bus Lines and the Continental Trailways 
Lines continued to operate dual waiting rooms designated 
by signs outside of each reading either “Colored Waiting



13

Room” or “White Waiting Room,” which signs were placed 
on the sidewalk by the Jackson police force (R. Vol. V, 
751-53).

In response, the Jackson City Lines filed an affidavit by 
its manager admitting that signs such as reported by 
appellants had not been removed from the Lines’ buses 
through an oversight, and that all of such signs have been 
removed (R. Vol. V, 753-56). The Municipal Airport Au­
thority acknowledged the continued presence of racial signs 
on its rest rooms and drinking fountains, and denied that 
the signs are enforced, claiming they “are maintained for 
the sole purpose of assisting members of both races who 
voluntarily desire to use said facilities separately and for 
no other purpose” (R. Vol. V, 757, 829). Similarly, Chief 
of Police Rayfield reported that the signs placed by the 
Jackson Police Department on the sidewalks outside the 
railroad and bus terminals were installed to facilitate volun­
tary segregation, stating that the “signs are not now being 
enforced and have never been enforced by the City of Jack- 
son or its Police Department” (R. Vol. V, 759). In support 
of this claim, an affidavit prepared by a city detective was 
filed reporting that during the period from April 3 to May 
24, 1962, colored persons including Negroes, Chinese, an 
Indian and a soldier from Pakistan had been seen using 
“all” waiting room facilities without hindrance (R. Vol. V, 
761).

Appellants filed affidavits indicating that Negroes are 
being hindered in attempts to use travel facilities on a non- 
segregated basis, not only in Jackson but in terminals op­
erated by appellee carriers in other sections of the State. 
Royce Smith, a college student, was refused service by a 
white waitress in the Trailways Bus Terminal restaurant in 
Meridian, Mississippi, on May 30, 1962, and was then har­
assed by a local police officer (R. Vol. V, 763). Mrs. Clarie



14

Collins Harvey, a Mississippi businesswoman, on May 22, 
1962, was forced out of the white waiting room of the 
Continental Trailways Terminal in Gulfport, Mississippi by 
local police officers, and requested to take a rear seat by the 
hostess on the Trailways bus (R. Vol. V, 765-66). Derrick 
Bell, one of appellants’ attorneys flew into Jackson on May 
30, 1962, for the hearing on plaintiffs’ motion for further 
relief and was refused service in the Jackson Airport ter­
minal restaurant, and asked to leave by City police officers 
(E. Vol. V, 768-69).

Following the filing of the above affidavits, and during 
the course of the May 31st hearing on appellants’ motion 
for further relief, the court below specifically rejected ap­
pellants’ contention that the carriers must not maintain 
separate waiting rooms. “I think the carriers have a right 
to have as many rooms as they want—two, four or what-not 
—as long as there are no signs or any effort to compel any 
separation of the races” (R. Vol. V, 830). Appellants also 
argued that the Jackson police should not be permitted to 
maintain signs on the sidewalks designating the waiting 
rooms of the carriers for one race or the other. However, 
the court below did not reply to the City’s response that 
the sidewalk signs are maintained to facilitate voluntary 
segregation, and that such use of the signs had been ap­
proved by the court in I. C. C. v. City of Jackson (R. Vol. V, 
831).

The court below did indicate at the May 31st hearing 
that the signs on the airport facilities and the restaurant’s 
discriminatory policy are improper (R. Vol. V, 844). Sub­
sequently, the manager of the airport reported to the court 
that all signs on water fountains and on the doors of the 
rest rooms had been removed (R. Vol. V, 770-71); and the 
manager and lessee of the airport restaurant, Cicero Carr, 
averred his intention to serve all persons without discrim-



15

ination because of race, creed or color in the restaurant 
which he was converting into a stand-up counter service 
(R.Vol. Y, 772).

On June 12, 1962, David Campbell, a white ministerial 
student visited the airport restaurant and reported that 
the conversion consisted of a partition separating a stand-up 
lunch counter, at which a policeman was stationed, from a 
larger dining area containing tables and chairs. A waitress, 
without solicitation, offered Campbell a seat and escorted 
him into the dining area over the entrance to which a sign 
was placed which read “Employees and flight personnel 
only.” Several other white persons were being served in 
this area (R. Vol. V, 773-74). After ordering, Campbell 
attempted to question the waitress about the sign, but 
she refused to comment (R. Yol. V, 775). Another waitress 
indicated that the sign and partition was intended to 
frustrate integration attempts (R. Vol. V, 776). The 
waitress who served Campbell later stated that she be­
lieved that he was an airline employee, and that sit-down 
service was restricted to airport employees and flight per­
sonnel (R. Vol. V, 783-84).

F. D istric t C ourt S u pp lem en ta l F indings, Conclusions 
and Judgm ent o f  July 2 5 , 19 6 2

In this order, the District Court took notice that the 
racial signs over the airport terminal’s water fountains 
and rest rooms had been removed, that the Jackson City 
Lines had removed all racial signs from the buses, that 
facilities of all carriers and the airport authority are now 
being used by all races without discrimination, and that 
the airport restaurant lessee has discriminated against 
Negro passengers but such discrimination has terminated 
(R. Vol. V, 788-89). The court again found that appellants 
were not entitled to any injunctive relief (R. Vol. V, 790).



16

G. The E vidence Follow ing D ictric t C ou rt’s 
R uling o f July 2 5 , 19 6 2

Appellants, in support of a motion filed to amend the 
July 25th supplemental findings as to Cicero Carr, the 
restaurant lessee, filed five affidavits prepared by one Negro 
and four whites, each of whom attested to the continued 
operation of the airport restaurant on a racially dis­
criminatory basis (E. Yol. V, 793-810). The affiants re­
ported that while tables in the restaurant’s dining area all 
contained “reserved” signs, no reservations were necessary 
for white patrons, while Negro patrons were denied en­
trance to the dining area entirely and served only at the 
lunch counter (E. Vol. V, 801-05).

Following the filing of these affidavits, the manager of 
the Jackson Municipal Airport Authority filed an affidavit 
admitting that appellants’ complaints indicated continuing 
discrimination in the operation of the airport restaurant 
facilities (E. Vol. V, 811) and as a result the Airport 
Authority had terminated the lease under which the lessee, 
Cicero Carr, had operated the airport restaurant (E. Yol. 
V, 811).

H . D istric t C ourt’s A m en dm en ts to  S u pp lem en ta l 
F indings, Conclusions and Judgm ent of 
A ugust 2 4 , 19 6 2

The court below took notice that the restaurant lessee, 
Cicero Carr, had been continuing to operate the airport 
restaurant on a segregated basis, but that he no longer 
held any interest therein. The court then found that each 
of the three appellants has a right to unsegregated service 
at the airport restaurant but again denied all injunctive 
and class relief (B. Vol. V, 847-49).



17

Specifications of Errors

1. The court below erred in refusing to enjoin all appel­
lees from enforcing any statute, ordinance, policy, practice, 
regulation or custom requiring, permitting or encouraging 
racial segregation on common carriers and terminal fa­
cilities.

2. The court below erred in refusing to grant injunctive 
relief for the class which appellants represented as pro­
vided for in the Federal Rules of Civil Procedure, Rule 
23(a)(3).

3. The court below erred in refusing to enjoin the City 
of Jackson, including the Mayor, City Commissioners and 
Chief of Police from:

(i) continuing to arrest, harass and intimidate ap­
pellants and members of their class, in connection with 
the exercise of their right to use public transportation 
facilities and services without segregation or discrimi­
nation ;

(ii) continuing to post signs or other indicia desig­
nating segregated or separate facilities for Negro and 
white passengers on or near passenger facilities or 
services.

4. The court below erred in refusing to enjoin Con­
tinental Southern Lines, Southern Greyhound Lines and 
Illinois Central Railroad, Inc., from continuing to maintain 
and operate separate or dual waiting rooms, and other 
facilities previously required for segregation of the races 
in the State of Mississippi, from posting or permitting to 
be posted racial designations on or near such terminals or 
facilities, and from in any way enforcing, encouraging, or 
permitting any racial segregation of passengers on carriers 
or in terminal facilities.



18

ARGUMENT
I

The District Court by refusing to grant injunctive re­
lief failed to carry out the U. S. Supreme Court’s man­
date, enabled discriminatory practices to continue, and 
thereby deprived appellants of an enforceable right to 
use public travel facilities in Mississippi on a nonsegre- 
gated basis.

In its per curiam decision of February 26, 1962, fore­
closing as a litigable issue the question of whether Negroes 
may be required to submit to racial segregation in public 
travel facilities, the Supreme Court referred to three de­
cisions dating back to 1946. Morgan v. Virginia, 328 U. S. 
373 (1946); Gayle v. Browder, 352 U. S. 903 (1956); 
Boynton v. Virginia, 364 U. S. 454 (1960). The intention 
of these and many other decisions by federal courts and 
agencies has been to remove the burden of racial discrimi­
nation from public travel.

But despite the almost solid line of precedent stretching 
back fifteen years, appellants in mid 1961 were able to 
allege and prove that in Mississippi these decisions have 
been almost completely ignored.

(a) The State of Mississippi by statute required, and 
its Attorney General was willing to enforce by prosecution 
if necessary, racial segregation on common carriers and 
in waiting room facilities maintained by common carriers 
in total disregard of Morgan v. Virginia, supra; Boynton 
v. Virginia, supra; and Baldwin v. Morgan, 287 F. 2d 750 
(5th Cir. 1961). The segregation statutes have been de­
clared void, but the general state policy of racial segrega­
tion recognized by this Court in Meredith v. Fair, 305 F. 2d 
343 (5th Cir. 1962), has not been altered.



19

(b) The City of Jackson’s ordinance requiring racial 
segregation on local buses was enacted in 1956, and bliss­
fully maintained in spite of the Supreme Court’s decision 
in Gayle v. Browder, supra, later in the same year, and this 
Court’s ruling in Boman v. Birmingham Transport Co., 
280 F. 2d 531 (5th Cir. 1960). The court below voided the 
ordinance, but the City’s police force continues even now 
to maintain racial signs outside of terminal waiting rooms 
in the face of this Court’s holding in Baldwin v. Morgan, 
287 F. 2d 750 (5th Cir. 1961), that such signs even to fa­
cilitate “voluntary segregation” are constitutionally im­
permissible. Policemen continue to arrest and harass pas­
sengers who seek to use such facilities on a nonraeial 
basis, ignoring Chance v. Lambeth, 186 F. 2d 879 (4th Cir. 
1951), cert, denied 341 U. S. 941 (1951); Boman v. Birming­
ham Transport Co., supra, and Baldwin v. Morgan, 251 
F. 2d 780 (5th Cir. 1958).

(c) The Jackson Municipal Airport Authority maintained 
segregated rest rooms and drinking fountains in its terminal 
waiting room and condoned a policy of racial discrimina­
tion by the lessee of its terminal restaurant, and later at­
tempted, notwithstanding Baldwin v. Morgan, supra; 
Brooks v. City of Tallahassee, 202 F. Supp. 56 (N. D. Fla. 
1961); and United States v. City of Montgomery, 201 F. 
Supp. 590, 594 (M. D. Ala. 1962), to justify the continued 
maintenance of racial signs as aids to voluntary segrega­
tion (R. Vol. V, 828-29). The Authority’s counsel even 
contended for a time (R. Vol. V, 828) that it could not 
control the segregated seating policy of the lessee of its 
restaurant, ignoring Burton v. Wilmington Parking Au­
thority, 365 IT. S. 715 (1961).

(d) The Greyhound and Trailways Bus Lines maintained 
racial signs over their separate waiting rooms until No­
vember 1, 1961, when an I. C. C. order (49 C. F. R. 180a)



20

specifically required their removal. Moreover, these car­
riers, along with the Illinois Central Railroad, have per­
mitted without protest the arrest, harassment and humilia­
tion of their passengers by local police officers and, sub­
mitted meekly to the clearly illegal placing of signs by 
local police designating their dual waiting rooms as for 
white or colored passengers, Lewis v. Greyhound Corp., 199 
F. Supp. 210 (M. D. Ala. 1961), and by the I. C. C. 
in NAACP v. St. Louis-San Francisco Railway Co., 297 
I. C. C. 335 (1955). In the State of Mississippi, it may be 
necessary to require the carriers to close the usually small, 
inadequate waiting room facility formerly designated for 
Negro use. This action would end the recurring problem 
of police officers, carrier employees and private citizens 
who “voluntarily” enforce segregation rules, against pas­
sengers seeking to use facilities formally designated for 
whites.

(e) The Jackson City Bus Lines continued without pro­
test to obey the city ordinance requiring segregated seating 
long after the invalidity of such laws was clearly estab­
lished in Gayle v. Browder, supra, and on their own initia­
tive, instituted a policy of requiring bus drivers to refuse 
to move a bus when passengers seated themselves in viola­
tion of the segregation ordinance (R. Vol. II, 201). This 
policy had the effect of a call to local police officers who 
generally responded by ordering the offending passenger 
off the bus and arresting him if he refused to leave (R. 
Vol. II, 248-49, Vol. Ill, 522-24).

Notwithstanding this clear evidence that some appellees 
were continuing policies of segregation, and that others 
had abandoned such policies with obvious reluctance, the 
court below three times refused to grant any injunctive 
relief to appellants (App. 8a, 13a, 16a). Appellants’ evi­
dence of discrimination was dismissed as “isolated instances



21

of improper behavior” (App. 3a), even though the record 
supports a finding that the infrequency of incidents is due 
to the fact that in Mississippi, segregation is so deeply 
embedded that protest is futile.

When Medgar Evers, an official of the NAACP, admits 
that having been refused service once at the airport restau­
rant, he was so humiliated that he neither reported the 
incident nor attempted to be served there again (R. Vol. 
II, 229), he makes out an a fortiori case for a large per­
centage of Mississippi Negroes.

When Dr. Jane McAllister, a Doctor of Philosophy at 
Jackson State College who for ten years has commuted 
by bus from Jackson to Vicksburg, Mississippi, testified 
that she was ordered to the rear seat of the bus by a 
Jackson policeman, the court found “she was treated 
rudely,” but added “As a colored person, she had always 
sat where she wished on the bus” (App. 3a). The court 
failed to place any significance on the fact that as a colored 
person in Mississippi, even with a doctor’s degree, Dr. 
McAllister chose regularly to sit in a seat just in front 
of the rear seat (R. Vol. Ill, 395), stated “I just never 
thought of sitting in front” (R, Vol. Ill, 409), and was 
subpoenaed to appear in court to testify to an experience, 
“I have tried to forget * # # because it was very humili­
ating, * * * ” (R. Vol. Ill, 394-95).

Despite the testimony of Medgar Evers, Dr. McAllister 
and several other Negro witnesses, including one of ap­
pellants’ attorneys, each of whom testified to an “isolated 
instance of improper behavior” when they sought to use 
travel facilities on a non-segregated basis, the trial judge, 
following the entry of an amended supplemental declara­
tory judgment where for the third time, all injunctive relief 
was denied (App. 16a), wrote to all counsel advising that 
all defendants are complying with the declaratory judg-



22

ment, “and I am definitely of the opinion that they will 
continue to do so” (App. 17a).

Such “compliance” as was required by the declaratory 
judgment cannot be enforced by the three appellants except 
“by one or more supplemental complaints reciting the 
matters and facts complained of” (App. 16a). The car­
riers continue to maintain dual waiting rooms, outside of 
which the City continues to maintain racial signs. Some 
City policemen continue to harass and intimidate persons 
seeking to use travel facilities on a nonsegregated basis, 
and if any of the appellees evolve new methods of retain­
ing the old racial system, appellants will have to file an­
other lawsuit to obtain what the United States Supreme 
Court ordered they be given in February 1962.

The appellants submit that the District Court’s refusal 
to grant injunctive relief in this case where the evidence 
is undisputed that they and other Negroes similarly situated 
are being denied a constitutional right was an abuse of 
discretion. Henry v. Greenville Airport Commission, 284 
F.2d 631 (4th Cir. 1960); Bush v. Orleans Parish School 
Board, 187 F. Supp. 42 (E. D. La. 1960). As Justice 
Brandeis wrote in Union Tool Company v. Wilson, 259 
U. S. 107, 112:

“Legal discretion # * does not extend to refusal
to apply well-settled principles of law to a conceded 
state of facts.”

Even if appellees had discontinued all policies of racial 
discrimination, justice, sound precedent and the public in­
terest would require injunctive relief in this case. United 
States v. Parke, Davis <& Co., 365 U. S. 125 (1961); United 
States v. W. T. Grant Co., 345 U. S. 629, 633 (1953). It was 
this Court’s view in Derrington v. Plummer, 240 F.2d 922 
(5th Cir. 1956), cert, denied 353 U. S. 924 (1957), that



23

equitable relief is as necessary in civil rights cases as in 
antitrust litigation.

Even if there had been a voluntary cessation of the 
alleged illegal conduct, the public interest in having 
the legality of the practice settled militates against 
a mootness conclusion in the absence of an affirmative 
showing that there is no reasonable expectation that the 
alleged wrong will be repeated. 240 F,2d at 925.

The Sixth Circuit has reached a similar conclusion. In 
Clemons v. Board of Education of Hillsboro, Ohio, 228 
F.2d 853, 857 (6th Cir. 1956), cert, denied 350 U. S. 1006:

If injunction will issue to protect property rights and 
‘to prevent any wrong’; * * # it will issue to protect 
and preserve basic civil rights such as these for which 
the appellant seeks protection. While the granting 
of an injunction is within the judicial discretion of 
the District Judge, extensive research has revealed 
no case in which it is declared that a judge has judicial 
discretion by denial of an injunction to continue the 
deprivation of basic human rights.

The unyielding attitude of the State of Mississippi and 
its officials to the constitutional demand of nondiscrimina­
tion is, by now, sufficiently well known to this Court to 
render further discussion superfluous. Meredith v. Fair, 
298 F.2d 696, 701 (5th Cir. 1962); United States v. Wood, 
295 F.2d 772 (5th Cir. 1961), cert, denied 369 IT. S. 850; 
United States v. Lynd, 301 F.2d 818 (5tli Cir. 1962). Simply 
stated, if the U. S. Supreme Court’s decision in this case 
and the several federal decisions upholding appellants’ 
right to use public travel facilities on a nondiscriminatory 
basis is to have practical meaning to appellants, then in­
junctive relief as requested in the Complaint must be 
granted.



24

II

The lower court’s failure to grant relief for the class 
denies effective relief to appellants.

Appellants had standing to represent not only themselves 
but, under the provisions of the Federal Eules of Civil 
Procedure, Eule 23(a)(3), all Negroes similarly situated. 
Brown v. Board of Education, 347 U. S. 483, 495 (1954); 
Evers v. Dwyer, 358 U. S. 202 (1958); Derrington v. 
Plummer, 240 F.2d 922 (5th Cir. 1956), cert, denied 353 
U. S. 924 (1957).

The court below concluded that this is not a proper 
class action stating that “the testimony of the plaintiffs 
was conflicting as to the identity of the class purported 
to be represented. They proved no authority to represent 
any other person and admitted that other Negroes did not 
approve of this action” (App. 4a). But there was no 
conflict. Each of the appellants testified as the complaint 
alleged (E. Vol. I, 6) that the suit was brought not only 
for themselves, but for other Negroes similarly situated 
(E. Vol. I, 109, 121, 141), a fact no less true because of 
their admission that they had not discussed the suit with 
other members of the class some of whom might not agree 
with their actions (E. Vol. I, 109-10, 121, 141).

The requirements for a class action under the Federal 
Eules of Civil Procedure, Eule 23(a)(3), are satisfied to 
no less an extent in this case than in literally hundreds of
other similar actions. Potts v. F lax,-----  F.2d ----- - (No.
19639, 5th Cir. Feb 6, 1963); Bush v. Orleans Parish School 
Board, 242 F.2d 156, 165 (5th Cir. 1957); Brunson v. Board 
of Trustees of Clarendon County, 311 F.2d 107 (4th Cir. 
1962). There was a common question of law concerning the 
validity of various segregation laws, policies and prac­
tices, arising out of the common fact situation that all



Negroes using public travel facilities are subjected to the 
questioned racial procedures. The number of persons in­
terested is far too great to make joinder practicable or 
helpful, and while appellants stated a truism that some 
members of the class might not agree with their actions, 
there was no effort made by appellees to show that the 
number of Negroes opposed to the suit was large, nor 
appellants submit, could such a showing have been made. 
For this reason, appellants also submit that the interests 
of the group were adequately and ably represented, and 
the relief sought was appropriate.

Indeed, it is the thrust of this Court’s opinion in Potts 
v. Flax, supra, that appropriate relief for appellants re­
quires relief for the class. As was there said, “By the 
very nature of the controversy, the attack is on the un­
constitutional practice of racial discrimination.” Potts v. 
Flax involves public schools, but its teaching is entirely 
appropriate here. Appellants did not bring this suit merely 
to gain admission to white facilities, and thereby con­
tribute actively to the class discrimination proscribed by 
Bush v. Orleans Parish School Board, 308 F.2d 491, 499 
(5th Cir. 1962). They seek desegregation of these facilities, 
wdiich relief, by its very terms, requires that all Negroes 
similarly situated must be included. Thus as was said in 
Potts v. Flax, assuming arguendo a correct ruling by the 
court below on the class action point, the relief to which 
appellants were entitled required the entry of a general 
decree. See also, Brunson v. Board of Trustees of Claren­
don County, supra.

Appellants are aware that a panel of this Court has 
affirmed in a recent per curiam decision a ruling of the 
court below denying class relief in a case involving segre­
gated recreational and library facilities in Jackson, Mis­
sissippi, Clark v. Thompson, No. 19961, March 6, 1963. A



26

petition for a rehearing en banc was filed on March 22, 
1963, and it is appellants’ position as set forth above that 
the district court’s refusal to grant general relief in cases 
seeking to desegregate public facilities is contrary to almost 
all of the cases decided in the civil rights area. See Shuttles- 
worth v. Gaylord, 202 F. Supp. 59 (N. D. Ala. 1961), 
affirmed, Hanes v. Shuttlesworfh, 310 F.2d 303 (5th Cir. 
1962). More importantly, it serves to deny effective relief 
even to those directly involved in the suit.

CONCLUSION

Wherefore, for all the foregoing reasons, it is respect­
fully submitted that the judgment of the court below should 
be reversed and the case remanded with specific directions 
that the appellants be granted the relief sought and such 
other and further relief as may be just.

Respectfully submitted,

Constance Baker Motley
J ack Greenberg
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, New York

R. J ess Brown
1105% Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants



APPENDIX



APPENDIX
—R-1470—

Findings of Fact, Conclusions of Law, 
and Declaratory Judgment

(Title Omitted—Filed May 3,1962)

This action was brought by three Negro citizens and 
residents of Jackson, Mississippi, to enjoin the alleged en­
forcement of certain Mississippi statutes which are alleged 
to be unconstitutional. The statutes sought to be enjoined 
are Title 11, Sections 2351, 2351.5 and 2351.7, and Title 28, 
Secs. 7784, 7785, 7786, 7786-01, 7787, 7787.5, Mississippi 
Code Annotated (1942), hereinafter referred to as Missis­
sippi segregation statutes. Plaintiffs attack the constitu­
tionality of said statutes.

The plaintiffs also seek to enjoin the arrests and prose­
cutions of persons other than the plaintiffs under Sections 
2087.5, 2087.7 and 2089.5 of the Mississippi Code Annotated 
(1942), as amended in 1960, hereinafter referred to as Mis­
sissippi breach of peace statutes. Plaintiffs do not contend

—R-1471—
that these statutes are unconstitutional. A three-judge Dis­
trict Court was convened in this case under Title 28 TJ. S. C. 
Section 2281. A hearing on plaintiffs’ motion for a pre­
liminary injunction was consolidated with a hearing on the 
merits. The three-judge Court abstained from further pro­
ceedings pending construction of the challenged laws by 
the state courts. 199 F. Supp. 595. Plaintiffs appealed, 
and the Supreme Court of the United States denied a mo­
tion for an injunction pending disposition of the appeal. 
368 U. S. 346. The Supreme Court of the United States 
held that this was not a proper matter for a three-judge 
District Court, vacated the judgment, and remanded the 
case to this Court for expeditious disposition of plaintiffs’



2a

Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

claims of right to unsegregated transportation service.
-----  IJ. S . ----- , 7 L. Ed. 2d 512. Accordingly, an order
has been entered herein dissolving the three-judge Court.

F i n d in g s  o f  F a c t

1. None of the plaintiffs has been arrested or threatened 
with arrest under any of the segregation statutes attacked 
in this case. The plaintiffs have not been arrested or threat­
ened with arrest under any of the Mississippi breach of 
peace statutes referred to in the amended complaint. The 
plaintiffs have not been denied any right, privilege or 
immunity claimed by them by virtue of said segregation 
statutes.

2. The interests of the plaintiffs are antagonistic to and 
not wholly compatible with the interests of those whom they

-R-1472—
purport to represent. They do not belong to a class which 
would include the persons arrested and prosecuted in the 
Mississippi Courts under the breach of peace statutes.

3. There have been no arrests or prosecutions under 
the segregation statutes attacked in this case for many 
years, and said statutes have not been enforced in Mis­
sissippi.

4. Evidence offered by the plaintiffs affirmatively es­
tablishes as a fact that none of the defendants has made 
any effort to control the action of Negroes in any of the 
terminals or on any of the carriers involved in this case.



3a

Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

5. The evidence discloses isolated instances of improper 
behavior on the part of certain law enforcement officers. 
The fact that they are relatively few in number emphasizes 
their absence as a general practice or policy. As much as 
we would like to see it otherwise, law enforcement officers 
are not infallible. Being human, there are those who are 
guilty of improper conduct, but the evidence in this case 
proves that such conduct is a rare exception rather than 
the general practice. While we cannot condone the mistakes 
made by a few law enforcement officers, we cannot indict a 
municipality or a State because of isolated errors in judg­
ment on the part of such officers. For instance, one of 
plaintiffs’ witnesses testified that he used the Jackson air­
port from fifteen to twenty times a year. On one occasion 
an unidentified waitress refused to serve him in the res­
taurant. He did not report this incident to anyone in

—B-1473—
authority with the airport or with the City. Plaintiffs’ wit­
ness, Dr. Jane McAllister, testified that she had commuted 
daily by bus from Jackson to Vicksburg, Mississippi, for 
ten years. As a colored person, she had always sat where 
she wished on the bus. On one occasion she was treated 
rudely by a Jackson policeman. The same is true of several 
other isolated instances reflected by plaintiffs’ evidence.

6. There was no evidence of any arrest in the City of 
Jackson of a Negro prior to April, 1961, when the Freedom 
Eiders began their much publicized visits to that City. 
The arrests of those persons involved both white and col­
ored people who were arrested at the same place and for 
the same reason. Neither race nor color nor location of 
facility being used had anything to do with those arrests.



4a

Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

No such arrest was made under any of Mississippi’s seg­
regation statutes. The cases arising out of those arrests 
are now pending in the Courts of the State of Mississippi, 
and this Court should not attempt to determine the merits 
of those State Court actions.

7. All segregation signs have been removed from the 
premises of all of the carrier defendants. All facilities in 
all terminals of the carrier defendants are now being freely 
used by members of all races, and there is no justification 
for the issuance of an injunction in this case.

—R-1474—
C o n c l u s io n s  o f  L a w

1. This Court has jurisdiction of the parties hereto and 
the subject matter hereof.

2. This is not a proper class action, and no relief may 
be granted other than that to which the plaintiffs are per­
sonally entitled. In the complaint plaintiffs purported to 
represent themselves and “other Negroes similarly situ­
ated”. In the amended complaint plaintiffs purported to 
represent “Negro citizens and residents of the State of 
Mississippi and other states”. Plaintiffs’ right to represent 
anyone but themselves was put in issue by the pleadings. 
The testimony of the plaintiffs was conflicting as to the 
identity of the class purported to be represented. They 
proved no authority to represent any other person and 
admitted that other Negroes did not approve of this action. 
On appeal an attempt was made to broaden the alleged 
class to include white and colored freedom riders. Whether 
this is a proper class action involves a question of fact. 
Flaherty v. McDonald, D. C. Cal., 178 F. Supp. 544. The



Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

plaintiffs cannot make this a legitimate class action by 
merely calling it such. Pacific Fire Ins. Co. v. Reiner, D. C. 
La., 45 F. Supp. 703. The burden of proof on this issue 
was on the plaintiffs. Oppenheimer v. F. J. Young £  Co., 
D. C. N. Y., 3 F. R. D. 220. The plaintiffs failed to meet 
this burden. In addition, a class action cannot be main­
tained where the interests of the plaintiffs are antagonistic 
to and not wholly compatible with the interests of those 
whom they purport to represent. Flaherty v. McDonald, 
D. 0. Cal., 178 F. Supp. 544; Redmond et al. v. Commerce

—R-1475—
Trust Co., C. C. A. 8th, 144 F. 2d 140; Brotherhood of Loco­
motive Firemen and Enginemen v. Graham, et al., C. C. A. 
Dist. of Columbia, 175 F. 2d 802; Kentucky Rome Mut. Life 
Ins. Co. v. Duling, C. C. A. 6th, 190 F. 2d 797; Advertising 
Specialty National Association v. Federal Trade Commis­
sion, C. C. A. 1st, 238 F. 2d 108; and Troup v. McCart, 
C. C. A. 5th, 238 F. 2d 289. The efforts of the plaintiffs to 
bring white and colored freedom riders within the class 
represented make it clear that this is not a proper class 
action. Bailey v. Patterson,----- IT. S .------ , 7 L. ed. 2d 512.

3. The three plaintiffs are entitled to an adjudication of 
their personal claims of right to unsegregated transporta­
tion service by a declaratory judgment herein.

4. It is mandatory upon this Court to declare the Mis­
sissippi segregation statutes and City ordinance attacked 
in this case to be unconstitutional and void as violative of 
the Fourteenth Amendment to the Constitution of the
United States. Bailey v. Patterson, ----- - U. S. ——, 7 L.
Ed. 2d 512.



6a

Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

5. Under the facts of this case, the plaintiffs are not now- 
entitled to injunctive relief. In so holding, this Court is 
seeking to observe a vital and fundamental policy which for 
m a ny years has been pronounced and followed by the 
United States Supreme Court and by other Federal Courts 
to the effect that Federal Courts of equity shall conform to 
clearly defined Congressional policy by refusing to inter­
fere with or embarrass threatened prosecution in State 
Courts except in those exceptional cases which call for

—R-1476—
interposition of a Court of equity to prevent irreparable 
injury which is clear and imminent. The issuance of a writ 
of injunction by a Federal Court sitting in equity is an 
extraordinary remedy. Bailey v. Patterson (on motion for 
stay injunction pending appeal), 368 U. S. 346. Injunctive 
relief will never be granted where the parties seeking same 
have adequate remedies at law. Douglas v. City of Jean­
nette, 319 U. S. 157, 87 L. Ed. 1324; Cobb v. City of Malden, 
C. C. A. 1st, 202 F. 2d 701; Brown v. Board of Trustees, 
U. S. C. A. 5th, 187 F. 2d 20; and State of Mo. ex rel. Gaines 
v. Canada, 305 U. S. 337, 83 L. Ed 208. It is discretionary 
with the Court as to whether it will enjoin enforcement of 
an unconstitutional statute, and it will not do so in the ab­
sence of a strong showing that the plaintiffs will suffer 
immediate and irreparable injury in the absence of injunc­
tive relief. Kingsley International Pictures Corp. v. City 
of Providence, 166 F. Supp. 456. The Court will not enjoin 
enforcement of an unconstitutional statute in the absence 
of evidence that said statute is being enforced. Poe v. Ull- 
man, 367 U. S. 497, 6 L. Ed. 2d 989. In Bailey v. Patterson,
-----U. S .------ , 7 L. Ed. 2d 512, the Supreme Court of the
United States correctly held that plaintiffs were not entitled



7a

Findings of Fact, Conclusions of Law, and 
Declaratory Judgment

to enjoin the criminal prosecutions of the freedom riders, 
and said:

“Appellants lack standing to enjoin criminal prosecu­
tions under Mississippi’s breach of peace statutes, since 
they do not allege that they have been prosecuted or 
threatened with prosecution under them.”

—E-1477—
6. The desire to obtain a sweeping injunction cannot be

substituted for compliance with the general rule that the 
plaintiffs must present facts sufficient to show that their 
individual needs require injunctive relief. Bailey v. Patter­
son, -----U. S .------ , 7 L. Ed. 2d 512; McCabe v. Atchison
T. <& 8. F. By. Co., 235 U. S. 151, 59 L. Ed. 169; Brown v. 
Board of Trustees, U. S. C. A. 5th, 187 F. 2d 20; and Kansas 
City, Mo., et al. v. Williams, et al., U. S. C. A. 8th, 205 F. 
2d 47.

7. Although no injunctive relief should now be granted, 
this Court should retain jurisdiction over this action and 
each of the defendants for such further orders and relief 
as may subsequently be appropriate.

This May 1st, 1962.
S. C. Mize



8a

—R-1478—
D e c l a r a t o r y  J u d g m e n t

I t i s  o r d e r e d , a d ju d g e d  a n d  d e c l a r e d  as follows, to-wit:
(1) That this is not a proper class action, and no relief 

may be granted other than that to which the plaintiffs are 
personally entitled.

(2) That each of the three plaintiffs has a right to un­
segregated transportation service from each of the carrier 
defendants.

(3) That the Mississippi segregation statutes and City 
ordinance attacked in this case are unconstitutional and 
void as violative of the Fourteenth Amendment to the Con­
stitution of the United States of America.

(4) That the plaintiffs are not now entitled to any in­
junctive relief, but jurisdiction over this action and each of 
the defendants is hereby retained for the entry of such 
further orders and relief as may be subsequently appro­
priate.

(5) That all Court costs incurred herein be and the same 
are hereby taxed against the defendants.

O r d e r e d , a d ju d g e d  a n d  d e c l a r e d , this 1st day of May, 
1962.

S. C. Mize
United States District Judge

Entered Jackson Division of the 
Southern District of Mississippi
Order Book 1962, pages 20S through 216.



9a

—R-1572—
Supplem ental Findings o f Fact, Conclusions o f Law, 

and Declaratory Judgment

(Title Omitted—Filed July 25,1962)

In its declaratory judgment previously entered herein, 
this Court retained jurisdiction over this action and all of 
the. parties hereto for the entry of such additional orders 
and for the granting of such additional relief as may be 
subsequently appropriate.

At the time of the entry of the declaratory judgment here­
in, counsel for the plaintiffs submitted the form of a judg­
ment which they suggested should be entered which granted 
plaintiffs an immediate injunction against all defendants. 
This was treated as a motion for judgment and was denied 
for the reasons set out in full in this Court’s findings of 
fact, conclusions of law and declaratory judgment in this 
case.

—R-1573—
Prior to the entry of the declaratory judgment herein, 

affidavits were filed in this action on behalf of Jackson City 
Lines, Inc., the Greyhound Corporation and Continental 
Southern Lines, Inc. to the effect that all signs indicating 
use of any facility by any race had been removed from the 
premises and buses of said defendants.

Subsequently, an affidavit was filed herein by the plain­
tiff, Broadwater, to the effect that he had observed “white”' 
and “colored” signs near the water fountains and rest 
rooms of the Jackson Municipal Airport; that he had ob­
served a sign on a Jackson City Lines Bus indicating that 
white passengers were to take front seats and colored pas­
sengers were to take rear seats; that two waiting rooms 
were being maintained in the terminal of each carrier de­
fendant, and that the City of Jackson maintained signs on



10a

Supplemental Findings of Fact, Conclusions of 
Law, and Declaratory Judgment

the public sidewalks near the carrier terminals with desig­
nations as to white and colored waiting rooms. In response, 
affidavits were filed on behalf of the Jackson Municipal 
Airport and the City of Jackson denying any enforcement 
of the signs complained of and showing use of all terminal 
facilities by members of all races without discrimination of 
any kind. Jackson City Lines, Inc. filed an affidavit to the 
effect that the failure to remove the sign on its buses was 
an oversight and that same had been removed.

A hearing was afforded all parties to this proceeding, at 
which counsel for plaintiffs requested and were granted 
permission to file additional affidavits. Defendants were 
given reasonable time within which to file responsive affi­
davits. The Court ruled tentatively at that time that the 
signs in the Jackson Municipal Airport should be removed

—-R-1574....
and that the evidence in the case in chief showed discrimi­
nation on the part of Cicero Carr, the lessee of the Jackson 
Municipal Airport Restaurant, in serving members of the 
colored race and that said discrimination should be discon­
tinued. This finding was supported by an affidavit of Der­
rick A. Bell filed herein. Subsequently, an affidavit was filed 
herein by Cicero Carr to the effect that the airport res­
taurant was being converted to a standup-counter service 
and that there would be no discrimination in serving mem­
bers of the public in said restaurant because of race, creed 
or color. An affidavit was filed on behalf of the Jackson 
Municipal Airport Authority showing removal of all signs 
from the water fountains and rest rooms in the airport.

An affidavit was filed herein by Boyce M. Smith that he 
was refused service in a restaurant in the terminal of Con­
tinental Southern Lines, Inc. in Meridian, Mississippi, by



11a

Supplemental Findings of Fact, Conclusions of 
Law, and Declaratory Judgment

unidentified employees of said restaurant; that he was 
asked to leave the restaurant by an unidentified police 
officer of the City of Meridian, Mississippi.

An affidavit was filed herein by Mrs. Clarie Collins Har­
vey to the effect that she was asked to leave a waiting room 
of the Continental Southern Lines, Inc, terminal at Gulf­
port, Mississippi, by unidentified police officers. Responsive 
affidavits have been filed on behalf of Continental Southern 
Lines, Inc. to the effect that none of its employees or repre­
sentatives participated in or were responsible for any of 
the acts complained of.

Subsequently, an affidavit was filed herein by David 
Campbell to the effect that he was permitted to eat in a 
room operated by Cicero Carr in the Jackson Municipal

—R-1575—
Airport exclusively for airport personnel. A responsive 
affidavit was filed by Mrs. Myrtle Nelson, an employee of 
Cicero Carr in said restaurant. It appears from both affi­
davits that the occurrence arose out of a mutual misunder­
standing as to the status of David Campbell and is not 
pertinent to any issue of discrimination in this case.

S u p p l e m e n t a l  F i n d in g s  o f  F a c t

The signs referring to race near the water fountains and 
rest rooms of the Jackson Airport were improper but have 
now been removed.

The sign on the bus of the Jackson City Lines complained 
of was improper but has now been removed.

The defendant, Cicero Carr, has discriminated against 
colored passengers in the restaurant operated by him in the 
Jackson Municipal Airport, but such discrimination has 
terminated.



12a

Supplemental Findings of Fact, Conclusions of 
Law, and Declaratory Judgment

All facilities of all carrier defendants and of the Jackson 
Municipal Airport Authority are now being used by mem­
bers of all races without discrimination of any kind.

S u p p l e m e n t a l  C o n c l u s io n s  o p  L a w

The defendant, Continental Southern Lines, Inc., did not 
participate in and is not responsible for either the occur­
rence at Meridian, Mississippi, or the occurrence at Gulf­
port, Mississippi. Neither of said cities nor the persons 
involved in said occurrences are parties to this action, and 
said occurrences are not pertinent to the issues involved 
herein.

—R-1576—
The Court finding that all matters of substance com­

plained of have been corrected and that there will be no 
re-occurrence of same, it is of the opinion that the plain­
tiffs are not now entitled to injunctive relief, but that this 
Court should retain jurisdiction over this action and each 
of the defendants for such further orders and relief as may 
subsequently be appropriate.

That all future complaints made herein by the plaintiffs, 
or any of them, shall be by one or more supplemental com­
plaints reciting the matters and facts complained of.

This July 23rd 1962

S. C. M iz e  

Judge



13a

Supplemental Findings of Fact, Conclusions of 
Law, and Declaratory Judgment

—K-1577—
S u p p l e m e n t a l  D e c l a r a t o r y  J u d g m e n t

I t i s  o r d e r e d , a d ju d g e d  a n d  d e c l a r e d  as follows, to-wit:
(a) That each of the three plaintiffs has a right to 

unsegregated service from the defendant, Cicero W. 
Carr, in the restaurant at the Jackson Airport.

(b) That the plaintiffs are not now entitled to any 
injunctive relief, but jurisdiction over this action and 
each of the defendants is hereby retained for the entry 
of such further orders and relief as may be subse­
quently appropriate.

(e) That all future complaints made herein by the 
plaintiffs, or any of them, shall be by one or more sup­
plemental complaints reciting the matters and facts 
complained of.

(d) That all Court costs incurred herein be and the 
same are hereby taxed against the defendants.

O r d e r e d , a d ju d g e d  a n d  d e c l a r e d  this 23rd day of July, 
1962.



14a

—R-1594—
Order Sustaining in Part and Overruling in Part 

Plaintiffs’ Motion That the Court Amend Its 
Supplem ental Findings o f Fact,

Conclusions o f Law, and 
Declaratory Judgment

(Title Omitted—Filed Aug. 24,1962)

In considering plaintiffs’ motion to amend this Court’s 
supplemental findings of fact, conclusions of law and de­
claratory judgment of July 23, 1962, the Court has care­
fully considered the following:

Plaintiffs’ motion to amend.
Affidavit of Austin Hollander dated August 3,1962.
Affidavit of Peter Richard Hilbert dated August 4,1962.
Affidavit of Robert Henry Johnson dated August 3,
1962.
Affidavit of Lucy Garlock Barker dated August 3, 1962.
Affidavit of Dewey Roosevelt Green, Jr. dated August
3,1962.

—R-1595—
Affidavit of T. A. Turner dated August 6, 1962.

These affidavits disclose that on August 1 and 2, 1962, 
the defendant, Cicero Carr, was guilty of discrimination in 
the operation of the airport restaurant facilities, but that 
said defendant’s lease agreement with the Jackson Munici­
pal Airport Authority was terminated by the Authority on 
August 6, 1962, and as soon as the Authority was apprised 
of the facts set forth in said affidavits. Said affidavits fur­
ther disclose that the said Cicero Carr will not hereafter 
have any interest in or control over the operation of the



15a

Order Sustaining and Overruling in Part 
Plaintiffs’ Motion That Court Amend 

Its Supplemental Findings, etc.

restaurant facilities in the Jackson Municipal Airport and 
that said facilities are now being and will hereafter be 
operated without discrimination of any kind. The motion 
filed by the plaintiffs should be and the same is hereby sus­
tained in part and overruled in part.

A m e n d e d  S u p p l e m e n t a l  F i n d in g s  o e  F a c t

The signs referring to race near the water fountains and 
rest rooms of the Jackson Airport were improper but have 
now been removed.

The sign on the bus of the Jackson City Lines complained 
of was improper but has now been removed.

The defendant, Cicero Carr, has discriminated against 
colored passengers in the restaurant operated by him in 
the Jackson Municipal Airport, but said defendant’s lease 
agreement with the Jackson Municipal Airport Authority 
has been terminated, and he will no longer have any interest

—R-1596—
in or control over said restaurant facilities which are now 
and will hereafter be operated without discrimination of 
any kind.

All facilities of all carrier defendants and of the Jackson 
Municipal Airport Authority are now being used by mem­
bers of all races without discrimination of any kind.

S. C. Mize



16a

Order Sustaining and Overruling in Part 
Plaintiffs’ Motion That Court Amend 

Its Supplemental Findings, etc.

A m e n d e d  S u p p l e m e n t a l  D e c l a r a t o r y  J u d g m e n t  

I t i s  o r d e r e d , a d j u d g e d  a n d  d e c l a r e d  a s  f o l l o w s ,  t o - w i t :

(a) That each of the three plaintiffs has a right 
to unsegregated service from the restaurant at the 
Jackson Airport.

(b) That the defendant, Cicero Carr, should not 
have any interest in or control over the restaurant 
facilities in the Jackson Airport in the future and 
should not be employed in any capacity in the opera­
tion of said facilities.

(c) That the plaintiffs are not now entitled to any
—R-1597—

injunctive relief, but jurisdiction over this action and 
each of the defendants is hereby retained for the 
entry of such further orders and relief as may be sub­
sequently appropriate.

(d) That all future complaints made herein by the 
plaintiffs, or any of them, shall be by one or more sup­
plemental complaints reciting the matters and facts 
complained of.

(e) That all Court costs incurred herein be and the 
same are hereby taxed against the defendants.

O r d e r e d , a d ju d g e d  a n d  d e c l a r e d  this 22nd day of August, 
1962.

S. C. M iz e

United States District Judge



17a

—R-1598—
Opinion by Sidney C. Mize, D . J .

August 22,1962
Chambers of 

S i d n e y  C. M iz e  

District Judge

(Filed—Aug. 24,1962)

E e: Letter Addressed to All Counsel

Gentlemen:
I have considered the plaintiffs’ motion to amend the 

Court’s supplemental findings of fact and conclusions of 
law and have reached the conclusion from the record and 
all the affidavits that the motion should be sustained in part 
and denied in part, and am herewith enclosing your copy 
of the amended findings of fact and conclusions of law and 
the amended supplemental declaratory judgment.

Cicero Carr on or about August 1 and 2, 1962 was guilty 
of discrimination in the operation of the Airport Restau­
rant, but immediately upon learning thereof the Airport 
Authority terminated his lease and he no longer is con­
nected in any capacity whatsoever with the Jackson Munici­
pal Airport Authority. I have further provided in the 
amended findings of fact that he shall not be reimployed in 
any capacity or in any connection with the Jackson Munici­
pal Airport.

It is my thought and I have so found that all the other 
defendants are complying with the declaratory judgment

—R-1599—
heretofore entered and I am definitely of the opinion that 
they will continue to do so. I think these defendants are 
acting in good faith and that they recognize that the law



18a

Opinion by Sidney C. Mize, D.J.

is well settled now so that there will be no farther dis­
crimination by any of the defendants.

The matter as to Cicero Carr, as I  see it, is really moot 
since he is no longer connected with any of the defendants 
and it is not necessary to enter a judgment or any injunc­
tion against him. For reasons heretofore stated in my 
rulings, I am of the opinion that an injunction is not re­
quired in this case and I am convinced, as heretofore stated, 
that all the other defendants will comply with the declara­
tory judgment heretofore entered in this case. You will 
note that the order is dated August 22, 1962.

With kindest regard to all of you, I am 

Sincerely yours,
S. C. Mize