City of Kansas City, Missouri v. WIlliams Brief for Petitioner

    IN THE

Supreme Court of the United States

OCTOBER TERM, 1953.

No.

CITY OF KANSAS CITY, MISSOURI, A MUNICIPAL 
CORPORATION, FRANK THEIS, PAUL M. FOGEL AND 
NED J. FORTNEY, AS MEMBERS OF THE BOARD OF 
PARK COMMISSIONERS OF KANSAS CITY, MISSOURI, 
AND J. V. LEWIS, AS SUPERINTENDENT OF PARKS 

OF KANSAS CITY, MISSOURI, Petitioners,
vs.

ESTHER WILLIAMS, LENA R. SMITH AND 
JO SEPH  N. MOORE, Respondents.

BRIEF OF CITY OF KANSAS CITY, MISSOURI, ET AL.

David M. P roctor,
City Counselor,

Be n j. M. P owers,
Associate C ity Counselor, 

J ohn J. Cosgrove,
Associate City Counselor, 

Attorneys for Petitioners.



INDEX

Table of Cases ____________________________________  i
Jurisdiction ________________________________________ 1
Statem ent of the C a s e _____________________________  2
Specification of Assigned E r ro r s ____________:_______  4

A rgum ent—

I. The Court of Appeals E rred in Relying upon 
M cLaurin vs Oklahoma State Regents for H igher 
Education As A uthority  for A ffirm ing the Judg­
m ent and Decree of the  D istrict C o u r t________ 6

II. The Court of Appeals E rred  in Failing to Make 
a Full and Detailed Comparison Between the 
Swope P ark  Swimming Pool Facilities Reserved 
for W hites Exclusively and the Parade Park  
Swimming Pool Facilities Reserved for Negroes 
Exclusively __________________________________ 8

III. The Court of Appeals E rred in Failing to Re­
verse the Judgm ent and Decree of the D istrict 
Court and in  Not Holding That the U ndisputed 
Facts, As a M atter of Law, Showed That the 
Swimming Pool Facilities Furnished Negroes 
W ere Substantially Equal to Those Furnished 
W hite Persons _____________________ _________ 13

Conclusion 14



IX Index

Table of Cases

Citations:

Bogardus vs. Commissioner of In ternal Revenue, 302
U. S. 34 ___________________________________ 5, 13

Boyer vs. G arret, 183 F. 2d 582 ___________________5, 12
Chilton vs. The St. Louis and I.. M. Railway Com­

pany, 114 Mo. 1. c. 91, 21 S. W. 457 __________5, 12, 14
Cycl. of Federal Procedure, Vol. 7, Section 3336,

page 552 ------------------------------------------------------5,13-14
Exmoor Country Club vs. United States, 119 F. 2d

961 ----------- .------------------------------------------------------5, 13
Fisher vs. H urst, 333 U. S. 147, 68 S, Ct. 389 ___ 5, 11-12
Gaines vs. Canada, 305 U. S. 337, 59 S. Ct. 232 _____ 5, 11
H. B. Glover vs. Bladine, Collector, 34 F. 2d 605,

1. c. 607 ______________________________________ 5, 13
Gong Lum  vs.. Rice, 275 U. S. 78, 48 S. Ct. 9 1 ______5, 11
M cLaurin vs. Oklahoma State Regents for H igher

Education et al., 339 U. S. 637 __________________  4, 6
Plessy vs. Ferguson, 163 U. S. 537, 16 S. Ct. 1138___ 5, 11
Union W ire Rope Corporation vs. A., T. & S. F.,

66 F. 2d 965 __________________________________ 5, 13
W eicker vs. Bromfield, 34 F. 2d 377 _______________5, 13
W estern B attery  and Supply Company vs. H azelett 

Storage B attery  Company, 61 F. 2d 220, 1. c. 221 5, 13
Younger vs. Judah, 19 S. W. 1109, 111 Mo. 303 ___ 5,12

Statute:

Sections 41 and 43, of Title 8, U. S. C. A .__________ 3

Opinion Below:

Opinion of the Court of Appeals is not yet officially 
reported (R. 93) 3



Supreme Court of the United States

OCTOBER TERM, 1953.

No.

CITY OF KANSAS CITY, MISSOURI, A MUNICIPAL 
CORPORATION, FRANK THEIS, PAUL M. FOGEL AND 
NED J. FORTNEY, AS MEMBERS OF THE BOARD OF 
PARK COMMISSIONERS OF KANSAS CITY, MISSOURI, 
AND J. Y. LEWIS, AS SUPERINTENDENT OF PARKS 

OF KANSAS CITY, MISSOURI, Petitioners,
vs.

ESTHER WILLIAMS, LENA R. SMITH AND 
JOSEPH  N. MOORE, Respondents.

BRIEF OF CITY OF KANSAS CITY, MISSOURI, ET AL.

JURISDICTION.

The judgm ent of the Court of Appeals was entered on 
June 10, 1953. On June  26, 1953, the Court of Appeals 
stayed the  issuance of its m andate for a period of th irty  
(30) days (R. 103). The jurisdiction of this Court is in ­
voked under 28 U. S. C. A., Section 1254(1).



2

STATEMENT OF THE CASE.

The controversy had its origin in a suit institu ted  by 
th ree  negroes against Kansas City and certain of its of­
ficials, alleging tha t they had been denied admission in to  
th e  Swope P ark  Swimming Pool used exclusively by 
whites, and prayed for, among other things, a perm anent 
injunction. In th e ir petition, as amended, the plaintiffs 
pled (R. 6):

“ * * * and tha t defendants and each of them , th e ir  
privies and successors in office be enjoined perm a­
nently  from  denying to plaintiffs and all o ther Negro 
citizens of K ansas City, Missouri, equal access to and 
enjoym ent of the aforesaid recreational facilities sub­
ject only to rules and regulations applicable to all w ith ­
out regard to race”' (Italics o u rs).

Thus, the plaintiffs prayed for a ruling tha t segrega­
tion in the use of the swimming pool was unconstitutional 
per se.

Your petitioners, in their amended joint answ er (R.. 
13, par. 12) pled:

“D efendants fu rther allege th a t since they have 
provided substantially equal outdoor swimming pool 
facilities for the members of the Caucasian and Negro 
Races, respectively, th a t segregation of the races in th e  
use of said facilities is not in violation of the Four­
teen th  A m endm ent to the  Constitution of the United 
States and th a t neither plaintiffs nor any m em ber of 
the  negro race has, as a consequence, been deprived 
of any righ t guaranteed by said am endm ent to the 
Constitution.”

In th e ir answ er your petitioners relied  on the  uniform  
decisions of the Suprem e Court of the United States ruling 
th a t separate public facilities, if they are substantially  
equal, a re  not violative of the Fourteenth Amendment.



3

The U nited States D istrict Court for the W estern D i­
vision of the W estern D istrict of Missouri, in its opinion, 
made findings of fact tha t the Parade Park  Swimming 
Pool, as constructed and m aintained by defendant, Kansas 
City, for use and enjoym ent of negro citizens and resident 
taxpayers, is not substantially  equal in character, location, 
appointm ent and facilities generally w ith m ajor swimming 
pools constructed and m aintained by said defendant, for 
use and enjoym ent for w hite citizens and resident ta x ­
payers of said City (R. 36).

And said D istrict Court fu rther adjudged and de­
clared tha t the refusal of the defendant, the City of K an­
sas City, Missouri, acting through its Board of P ark  Com­
missioners and the Superintendent of Parks, to perm it 
plaintiffs to use the Swope P ark  Swimming Pool solely 
because of race and color while granting this righ t to 
w hite persons, deprives the plaintiffs of the legal protec­
tion of the laws of the Fourteenth  Am endm ent and Sec­
tions 41 and 43, T itle 8, U. S. C. A., and rights and priv i­
leges secured thereunder (R. 46-47).

In its opinion, the Circuit Court of Appeals stated (U. 
S. C. A., p. 8) (R. 93):

“These and the many other differences pointed 
out by the tria l court, which we shall not undertake 
to repeat, would, make it impossible for us to say as a 
matter of law that the court’s appraisal of the two 
pools as not constituting substantially equal facilities 
for swimming enjoym ent was clearly erroneous” 
(Italics ours).

Thus, the Court of Appeals did not rule tha t the fa ­
cilities of the two pools, one for W hites and one for Negroes, 
w ere not substantially  equal.

The Court of Appeals also stated in its opinion (U. S. 
C. A., p. 6) (R. 97):



4

“The adm ittance of negroes to Swope Park, the  
same as whites, for enjoym ent of it as a general rec­
reation area or center, in accordance w ith the object 
for which it was m aintained, bu t w ith a denial to the 
negro of the privilege of engaging in diving, swim ­
ming, w ading and sun-bathing activity, as one of the  
incidents of the comprehensive recreational program  
afforded by the P ark  to others on an outing occasion, 
would constitute in our opinion unequal treatment and 
illegal discrimination against the negro in his right to 
enjoy Swope P ark  for w hat it had been made to be­
come” (Italics o u rs ).

According to the court’s opinion th e  “unequal trea t­
m ent and illegal discrim ination” was not based on a com­
parison of the two pools—Swope P ark  and  Parade P ark , 
which was the only issue, but upon the City refusing th e  
plaintiffs admission to the Swope P ark  Pool in a public 
park  w here they w ere perm itted  to. use other recreational 
facilities. This ruling was foreign to the issues Involved.

SPECIFICATION OF ASSIGNED ERRORS.

I .

The Court of Appeals E rred  in Relying upon M cLaurin vs.. 
Oklahoma S tate Regents for H igher Education As A uthority 
for A ffirm ing the Judgm ent and Decree of the D istrict

Court.

McLaurin v. Oklahoma State Regents for Higher 
Education et al., 339 U„ S. 637.



5

II.

The Court of Appeals E rred in Failing to Make a Full and 
Detailed Comparison Between the Swope P ark  Swimming 
Pool Facilities Reserved for W hites Exclusively and the 
Parade P ark  Swimming Pool Facilities Reserved for 

Negroes Exclusively.

Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138. 
Gong hum  v. Rice, 275 U. S. 78, 48 S. Ct. 91. 
Gaines v. Canada, 305 U. S. 337, 59 S. Ct. 232. 
Fisher v. Hurst, 333 U. S. 147, 68 S. Ct. 389. 
Boyer v. Garret, 183 F. 2d 582.
Chilton v. St. Louis & I. M. R. R. Co., 114 Mo. 1. c. 

91, 21 S. W. 457.
Younger v. Judah, 19 S. W. 1109, 111 Mo. 303.

III.

The Court of Appeals E rred  in Failing to Reverse the 
Judgm ent and Decree of the D istrict Court and in Not 
Holding That the Undisputed Facts, As a M atter of Law, 
Showed That the Swimming Pool Facilities Furnished 
Negroes W ere Substantially Equal to Those Furnished 

W hite Persons.

Bogardus v. Commissioner of Internal Revenue, 
302 U. S. 34.

Weicker v. Bromfield, 34 F. 2d 377.
H. B. Glover v. Bladine, Collector, 34 F. 2d 605, 

1. c. 607.
Western Battery and Supply Co. v. Hazelett Stor­

age Battery Co., 61 F. 2d 220, 1. c. 221.
Union Wire Rope Corporation v. A., T. & S. F., 

66 F. 2d 965.
Exmoor Country Club v. United States, 119 F. 2d 

961.
Cycl. of Federal Procedure, Vol. 7, Section 3336, 

page 552.
Chilton v. The St. Louis and I. M. Railway Com­

pany, 114 Mo. 1. c. 91, 21 S. W. 457.



6

ARGUMENT.

I.

The Court of Appeals E rred  in Relying upon M cLaurin vs. 
Oklahoma State Regents for H igher Education As A uthority  
for Affirm ing the Judgm ent and Decree of the D istrict

Court.

In  deciding the main issue in this case, the Court of 
Appeals cited and appeared to rely  by analogy upon one 
case—McLaurin v. Oklahoma State Regents for Higher Ed­
ucation et al., 339 U. S. 637, and frankly  stated:

“We shall not engage in a detailed comparison of 
the negro pool, located some 4% miles away from 
Swope P ark  w ith the  Park  Pool, as m ere physical facili­
ties.”

Ignoring this v ita l point around which the whole 
case had turned, the Court of Appeals drew  an analogy 
between the case at bar and the M cLaurin case w hen there  
was no legitim ate analogy betw een the two situations.

In  the  M cLaurin case, the plaintiff, M cLaurin, had 
been adm itted to the graduate school of the U niversity of 
Oklahoma but had been restric ted  in such ways tha t th is 
court found tha t he was not able to receive the benefits 
of such admission as did w hite students. There w ere no 
graduate school facilities afforded by the S tate of Okla­
homa for negroes and, hence, M cLaurin was not able to re ­
ceive the benefits afforded w hite students for higher edu­
cation and the Court expressed tha t opinion in  the follow­
ing words:

“The result is tha t appellant is handicapped in his 
pursuance of effective graduate instruction. Such re ­
strictions im pair and inhibit his ability to study, to



7

engage in  discussions and exchange of views w ith  other 
students, and in general to learn  his profession. * * * 
Those who w ill come under his guidance and influence 
m ust be directly affected by the education he receives. 
Their own education and development w ill necessarily 
suffer to the ex ten t tha t his training is equal to tha t 
of his classm ates” (1. c. 641).

A rguing from  this situation, the Court of Appeals con­
tended tha t the  plaintiffs here had been adm itted to Swope 
Park  generally and w ere able to enjoy all of its recreational 
facilities except the swimming pool; hence, in  effect, the  
plaintiffs had not been able to make full use of the Swope 
P ark  facilities of which the swimming pool was only one. 
Thus, the issue was changed from  the question of w hether 
plaintiffs had been afforded substantially equal swimming 
pool facilities to a different issue, to-wit, w hether they 
had been afforded full use of Swope Park, and so the Court 
said tha t the adm ittance of negroes to Swope Park, but 
w ith the denial to negroes of the “privilege of diving, 
swimming, w ading and sun-bathing activities, would con­
stitu te  unequal trea tm ent and illegal discrim ination against 
the negro and his right to enjoy Swope Park  for w hat it 
had been made to become.”

In other words, the Court took the position tha t the use 
of Swope Park  by negroes is spoiled because they cannot 
swim there.

But Kansas City does furnish swimming facilities to 
negroes elsew here in the City and the swimming facilities 
furnished negroes are substantially  equal to those furnished 
w hite persons in Swope Park. This difference in  the case 
a t bar nullifies the  M cLaurin case as an authority  de­
term inative of the issues in this case.

In stressing the M cLaurin case as an authority , the 
Court of Appeals indulged in the assum ption not sup­



8

ported by the record tha t negro swimmers w ent to  Swope 
P ark  to indulge in all of the recreational facilities on the 
same trip , and in order to swim would have to disrupt 
the ir visit and drive 4% to 6 m iles to the  swimming 
facilities (Parade P ark  pool) and then re tu rn  to Swope 
P ark  to  resum e the ir enjoym ent of o ther recreational 
facilities. This is based on surm ise and speculation. 
C ertainly the plaintiffs did not take the position, tha t the ir 
enjoym ent of Swope P ark  had been destroyed because 
they could not swim there  and they w ent directly to  
Swope P ark  for the purpose of swimming and nothing 
else. The evidence does not disclose th a t negroes, or w hite 
persons either for th a t m atter, expected to enjoy all of the 
recreational facilities in Swope P ark  on the  same trip . 
Swimming is such a distinct type of recreation tha t it 
cannot be coupled w ith  all o ther types of recreation as an  
essential p a rt of park  enjoyment. Segregation of races 
in the use of public pools produces no such harm ful effects 
as are described by the Court in the M cLaurin case.

Thus, the Court of Appeals decided this case on is­
sues th a t w ere not raised and on a record th a t did not 
exist bu t on an unsupported  surm ise.

II.

The Court of Appeals E rred in Failing to Make a Full and 
Detailed Comparison Between the Swope P ark  Swimming 
Pool Facilities Reserved for W hites Exclusively and the 
Parade P ark  Swimming Pool Facilities Reserved for 

Negroes Exclusively.

The Court of Appeals, frank ly  ignored and disre­
garded a comparison between the  swimming facilities of 
the Swope P ark  pool and those of the Parade P ark  pool. 
The Court bases its opinion on the single fact tha t plain­
tiffs w ere not adm itted to Swope P ark  although in th e



9

same park  they w ere adm itted to equal enjoym ent w ith  
Whites of other recreational facilities. The Court brushed 
aside this determ inative issue w ith the words:

“W e shall not engage in a detailed comparision 
of the  negro pool, located some 4% miles aw ay from  
Swope P ark  w ith  the P ark  Pool, as m ere physical 
facilities.”

But the issue in the  case did require a detailed comparison 
of these physical facilities. We take it th a t if the Parade 
Park  Pool (aside from  location) had been an exact dupli­
cation of the Swope P ark  Pool, the ruling would have been 
the same.

W e find no justification for this in any case involving 
segregation of races, decided by the Suprem e Court of the 
United States. N either brick nor m ortar, nor the location 
of separate facilities for the  tw o races are th e  sole factors 
in determ ining the question of substantial equality of 
swimming pool facilities. M any factors m ust be con­
sidered. Accessibility to th e  prospective patrons of a 
facility constitutes an im portant elem ent in determ ining 
substantial equality. Edw ard J. Kelly, called by plain­
tiffs, Superintendent of National Capitol Parks, whose re ­
sponsibility is the operation, m aintenance and manage­
m ent of the National P ark  System of the D istrict of 
Columbia, testified tha t the  more accessible recreational 
facilities are, the m ore desirable it is; tha t swimmers go 
to the  facilities th a t are closest to the ir homes (R. 66).

Admission fees, likewise, have an im portant bearing in 
determ ining w hether the separate facilities provided the 
tw o races are substantially equal. The Board of P ark  
Commissioners, recognizing tha t negroes as a race are in 
a low er income bracket than the w hite race, operate the 
Parade P ark  Pool w ithout charges for admission. As a re ­



10

suit, the Parade P ark  Pool located very  near the center 
of the  negro residential district, some tw enty  blocks 
blocks square, occupied by an overwhelm ing m ajority  of 
all th e  negroes of Kansas City, M issouri, w ith  th e  added 
privilege of free admission, has afforded the negroes, in­
cluding the plaintiffs, unusual opportunity for enjoying 
the privileges and benefits of a m ajor swimming pool 
containing all of the essential features for enjoym ent of 
swimming.

If there  had been no Parade P ark  Pool, and one m ajor 
swimming pool for negroes had been located in Swope 
Park, some six and one-half miles removed from  the negro 
population, and a charge of forty  cents for all patrons above 
tw elve years of age and tw enty  cents for those below 
twelve, desiring to swim, there  would have been “un­
equal trea tm ent and illegal discrim ination against th e  
negro” and the “unequal treatm em nt and illegal dis­
crim ination” could and would have been chargeable to  
the  inaccessibility, distance and rem oteness of the pool from 
the negro population it intended to  serve. The City could 
also have been justly  charged w ith  “unequal trea tm ent 
and illegal discrim ination against th e  negro” in failing 
to recognize tha t negroes as a race are in a low er income 
bracket than  the w hite race. In  providing swimming pool 
facilities for negroes, the City considered w ell the ele­
m ents of accessibility and charges for admission. It based 
its decisions on practical realities and not on technical 
consideration of asserted constitutional rights.

Swope Park, located near the southeast corner of the. 
City, whose boundaries, form ing a rectangle, are about 
five miles wide and fifteen miles long, does not draw  a 
heavy attendance from  whites, because of its distance and 
rem oteness to large segments of the w hite population and 
also the  charges imposed. The im portance of the factors



11

of accessibility and charges for admission, wholly disre­
garded by the Court of Appeals, is clearly dem onstrated 
by the attendance records of the two m ajor pools. The 
attendance at the Parade P ark  Pool in  1951 was 59,478, 
and the to tal negro population was 55,682. The a ttend ­
ance, therefore, at the pool was one hundred and six per 
cent of tha t total negro population. This does not include 
admissions of 11,795 to the Nelson C. Crews Jun ior Pool 
(for negroes) or a num ber equal to tw enty  per cent of the 

to tal negro population. The grand to tal of admissions to 
the two facilities (both negroes) for 1951 was 71,265. This 
record, we submit, is unansw erable proof tha t the swim­
ming pool facilities provided for negroes are popular, and 
furnish all negroes, both adults and children, the oppor­
tun ity  and privilege of enjoying swimming pool privileges.

The negro pools serve the negroes of K ansas City, Mis­
souri, better and more fairly  than  if one large pool had been 
located in Swope Park  for the ir use.

The attendance, however, at the  Swope P ark  Pool in 
1951 was only 94,460, or a num ber equal to about tw enty- 
three per cent of the total w hite population. In propor­
tion to population, the negro swimming pool facilities a t­
trac ted  four times as m any patrons as the Swope P ark  Pool 
for whites.

Your petitioners w ere entitled to have all of these ele­
m ents considered because substantial equality was the main 
issue of the case and the  record dem onstrates th a t consid­
ering the num ber of prospective patrons negroes w ere af­
forded substantially equal swimming facilities. This being 
so, the rulings of this court from  the Plessy case to the 
present required  a reversal of the decision of the D istrict 
Court. Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 
1138; Gong Lum  v. Rice, 275 U. S, 78, 48 S. Ct. 91; Gaines 
v. Canada, 305 U. S. 337, 59 S. Ct. 232; Fisher v. Hurst, 333



12

U. S. 147, 68 S. Ct. 389; Boyer v. Garret, 183 F. 2d 582; 
Chilton v. S t. Louis & I. M. R. R. Co., 114 Mo. 1. c. 91, 21 
S. W. 457, and Younger v. Judah, 19 S. W. 1109, 111 Mo. 
303.

In  certain  triv ial details the P arade P ark  Pool lacked 
a few  features provided at the Swope Park  Pool. These 
features are of no particu lar value to a swimming pool, 
operated prim arily  for the enjoym ent of swimming. T here 
is no proof th a t they  are needed or necessary or for swim ­
ming enjoym ent. There was no proof tha t they are v ita l 
to the  enjoym ent of swimming in the pool or even used, 
by m any, if any, of its patrons. There was no evidence of­
fered to show th a t they constitute standard equipm ent for 
a swimming pool. It would be more accurate to  classify 
them  as added accessories or frills producing no privileges 
and pleasures of swimming th a t are not enjoyed by the 
patrons of the P arade P ark  Pool.

N either pool was built as a sort of em porium  for di­
versified activities, including a commissary and h a ir d ry­
ing equipm ent. They w ere built for serving the public in 
the m atter of swimming in pools tha t w ere chemically 
clean, guarded for safety, and in  attractive settings of 
trees, shrubs, flowers and blue grass turf.

W hen th e  whole p icture is review ed we subm it th a t 
the Court of Appeals erred  in not holding, as a m atter of 
law, th a t the facilities provided for negroes w ere substan­
tially  equal in compliance w ith  the law. The advantages 
of accessibility and freedom  from  the paym ent of fees gives 
to the negroes of Kansas City substantial advantages, no t 
enjoyed by w hite persons desiring to swim.



13

III.

The Court of Appeals E rred in Failing to Reverse the 
Judgm ent and Decree of the D istrict Court and in Not 
Holding That the U ndisputed Facts, As a M atter of Law, 
Showed That the Swimming Pool Facilities Furnished 
Negroes W ere Substantially Equal to Those Furnished

W hite Persons.

There is no issue of fact in this case. None of the 
evidence as to the character of the swimming facilities is 
disputed.

Therefore, the ru ling of the Circuit Court of Appeals 
tha t the City was guilty of “unequal treatm ent and illegal 
discrim ination against the negro” to enjoy the Swope Park  
Swimming Pool involves a question of law only, which 
the court did not decide. W ith no facts in dispute it was 
the function and duty of the Court of Appeals to hold, as 
a m atter of law, tha t the facilities furnished negroes either 
w ere or w ere not substantially  equal to the  facilities fu r­
nished w hite persons at the Swope Park  Swimming Pool. 
If the  Parade Park  Pool furnished for the  exclusive use of 
negroes was substantially (not identically) equal to the 
facilities furnished the w hites at the Swope Park  Swim ­
ming Pool, it was the function and duty of the Court of 
Appeals to so find and in tha t event the segregation em ­
ployed by the City was lawful and in accordance w ith the 
rules of the Suprem e Court of the  United States in all 
segregation cases. Bogardus v. Commissioner of Internal 
Revenue, 302 U. S. 34; Weicker v. Bromfield, 34 F. 2d 377; 
H. B. Glover v. Bladine, Collector, 34 F. 2d 605, 1. c. 607; 
Western Battery and Supply Co. v. Hazelett Storage Bat­
tery Company, 61 F. 2d 220, 1. c. 221; Union Wire Rope 
Corporation v. A., T. & S. F., 66 F. 2d 965; Exmoor Country 
Club v. United States, 119 F. 2d 961; Cycl. of Federal P ro ­



14

cedure, Vol. 7, Section 3336, page 552; Chilton v. The St. 
Louis and I. M. Railway Company, 114 Mo. 1. c. 91, 21 S. 
W. 457.

CONCLUSION.

For the foregoing reasons the petition for w rit of 
certiorari should be granted.

Respectfully subm itted,

David M. P roctor,
City Counselor,

Be n j. M. P owers,
Associate City Counselor, 

J ohk J. Cosgrove,
Associate City Counselor, 

Attorneys for Petitioners.