Holmes v. City of Atlanta Petition for Writ of Certiorari to the US Court of Appeals for the Fifth Circuit

    IN  T H E

&UJIWUU' ffimtrt of %  Hutted Staten
October Term, 1955

No.

ALFRED HOLMES, OLIVER W. HOLMES and 
I)R. H. M. HOLMES,

Petitioners,
vs.

CITY OF ATLANTA, et al,
Respondents.

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

FOR THE FIFTH CIRCUIT

R obert L. Carter,
T hitrgood Marshall,
E . E . Moore,

Counsel for Petitioners.

Of Counsel:
R. E . T homas, J r.,
S. S. R obinson.

S upreme P rinting  Co., I nc., 114 W orth S treet, N. Y. 13, B E ek m an  3 - 2320



TABLE OF CONTENTS

PAGE

Opinions Below ....................................................   1
Jurisdiction ...............................................................  2
Question Presented ..................................................  2
Statement Of The Case ...........................................  2
Specification Of Errors To Be U rged .......................  4
Reasons For Allowance Of The W r i t ....................... 5
Conclusion.................................................................. 13

Table of Cases

Blazer v. Black, 196 F. 2d 139 (CA 10th 1952).........  13
Bolling v. Sharpe, 347 U. S. 497 ..................5, 6, 8, 9,10,11
Brown v. Board of Education, 347 U. S. 483 .. 5, 6, 9,10,11 
Buchanan v. Warley, 245 U. S. 6 8 ...........................  5, 8
Carter Oil Co. v. McCasland, 190 F. 2d 887 (CA 10th 

1951), cert. den. 342 U. S. 8701, rehearing den. 342
U. S. 899 ................................................................. 13

Cohen v. Randall, 137 F. 2d 441 (CA 2d 1943), cert.
den. 320 U. S. 796 ................................................  13

Cumming v. County Board of Education, 175 U. S.
528 ..........................................................................  6

Dawson v. Mayor, 220 F. 2d 836 (CA 4th 1955)__  10
Del Balso v. Carozza, 136 F. 2d 280 (C. A. D. C. 1943) 13
Gardner v. Mid-Continent Grain Co., 168 F. 2d 819

(CA 8th 1948) ............   13
Gong Lum v. Rice, 275 U. S. 7 8 ..................................  6
Hawkins v. Frick-Reid Supply Corp., 154 F. 2d 88

(CA 5th 1946) ........................................................ 13
Henderson v. United States, 339 U. S. 816 ............. 10



11

PAGE,

McLaurin v. Oklahoma State Regents, 339 U. S.
637 ..................................................................6,7,9,10,11

Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . . .  6
Plessy v. Ferguson, 163 U. S. 537 ............................. 4, 5, 6
Rice v. Arnold, judgment vacated and remanded, 340 

U. S. 848, judg. aid’d, 54 So. 2d 114 (1951), cert.
den. 342 U. S. 946 ..................................................  7

Roth v. Fabrikant Bros., Inc., 175 F. 2d 665 (CA 2d 
1949) ......................................................................  13

Sipuel v. Oklahoma, 332 U. S. 631.............................. 6
Sweatt v. Painter, 339 IT. S. 629 ..............................  6, 7
Sweeney v. Louisville, 102 F. Supp. 525 (W. D. Ky.

1951), aff’d sub nom. Muir v. Louisville Park 
Theatrical Assn., 202 F. 2d 275 (CA 6th 1953), 
judg. vacated and remanded 347 U. S. 971 . . . . . . .  7

Williams v. Kansas City, 205 F. 2d 47 (CA 8th 1952) 9

Statute Cited

Title 28, United States Code, Section 1251(1) .........  2

Rules Cited

Federal Rules of Civil Procedure:
Rule 8f.....................................................................  11,12
Rule 54c...................................................................  11



IN  THE

iatpnw  (Hour! rrf tip BtuUs
October Term, 1955 

No.

o

A lfred H olmes, Oliver W. H olmes and D r. H. M. H olmes,

vs.
Petitioners.

City of A tlanta, et al.,
Respondents.

--------------------- o----------------------

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

FOR THE FIFTH CIRCUIT

To the Honorable, the Chief Justice of the 
United States and the Associate Justices 
of the Supreme Court of the United States:

Petitioners pray that a writ of certiorari issue to review 
the judgment of the United States Court of Appeals for the 
Fifth Circuit entered in the above-entitled cause on June 17, 
1955.

Opinions Below

The opinion, findings of fact and conclusions of law of 
the District Court (R. 56-62) are reported at 124 F. Supp. 
290. The opinion of the Court of Appeals (R. 69-72) is 
reported at 223 F. 2d 93.



2

Jurisdiction

The judgment of the Court of Appeals affirming the 
judgment of the lower court was entered on June 17, 1955. 
Jurisdiction of this Court is invoked pursuant to Title 28, 
United States Code, Section 1251(1).

Question Presented

W h eth er  a  ju d g m en t w h ich  en jo in s th e  exc lu sio n  o f  
N egroes from  p u b lic ly  ow n ed  and  op era ted  fa c ilit ie s , but 
w h ich  em p ow ers sta te  officia ls to  im p ose seg reg a tio n  in th e  
u se  and en jo y m en t o f  such  fa c ilit ie s , accord s to  p etition ers  
th e  red ress to  w h ich  th ey  are e n titled  u n d er th e  F ou rteen th  
A m en d m en t.

Statement Of The Case

The relevant facts in this case are not in dispute. On 
July 19, 1951, petitioners sought to use a public golf course 
maintained by the City of Atlanta for the use and enjoy­
ment of the general public but were refused permission to 
play thereon by the defendants solely because of their race 
and color (R. 8). Petitioners sought permission of the Park 
Commissioners to use these facilities, but such permission 
was refused. This suit followed.

On June 26, 1953, petitioners filed a complaint in the 
district court (R. 1-15) seeking a declaratory judgment and, 
injunction enjoining respondents “ from making any dis­
tinction on account of race or color in providing opportuni­
ties, advantages and facilities for playing the game of golf 
upon the public golf courses that are now provided, owned, 
maintained and operated by the City of Atlanta, or that 
may be established and constructed by the City of Atlanta 
hereafter, for the benefit and use of the citizens of the City



3

of Atlanta, Georgia.” On August 12, 1953, a motion to 
dismiss and a motion for a more definite statement was 
filed by respondents (R. 17-25), and was denied on Sep­
tember 5, 1953 (R. 25-28). The answer was filed on Sep­
tember 15, 1953 (R. 28-31). On July 6, 1954, a hearing was 
held in the court below (R. 36-55), and on July 8, 1954, the 
district court entered its findings of fact, conclusions of law 
and judgment (R. 56-62). The judgment (R. 61-62) was 
as follows:

The refusing to allow plaintiffs and others simi­
larly situated because they are negroes, to make use, 
on a substantially equal basis with white citizens of 
municipal facilities for playing golf is to practice a 
forbidden discrimination. It is therefore,

Considered, Ordered and Adjudged that the de­
fendants, and each of them, their agents, employees 
and servants be, and they hereby are restrained and 
enjoined from refusing to allow plaintiffs and other 
negroes similarly situated, because they are negroes, 
to make use, on a substantially equal basis with 
white citizens of the municipal facilities for playing 
golf. The effect of this judgment will for a reason­
able time and until the further order of this Court, 
be postponed in order that the defendants may be 
afforded a reasonable opportunity to promptly pre­
pare and put into effect regulations for the use of 
the municipal golf facilities which, while preserving- 
segregation, will be in full and fair accord with its 
principles. This principle is that the admissibility 
of laws separating the races in the enjoyment of 
privileges afforded by the State rest wholly upon 
the equality of the privileges which the laws give 
to the separated groups within the State. In apply­
ing this principle, that equality of treatment of white 
and colored citizens must be afforded which will 
secure to both, complete and full recognition, that,



4

under the Constitution and laws, there are not two 
classes of citizens, a first and second, but one class, 
with all of equal rank in respect of their rights and 
privileges to use and enjoy facilities provided at 
public expense for public use.

On August 6, 1954, petitioners filed notice of appeal and 
urged in their brief and argument in the Court of Appeals 
that the judgment below was in error in permitting the state 
to admit Negroes to the golf course but operate such facili­
ties on a segregated basis. It was urged that all racial 
differentiations in the use and enjoyment of these facilities 
were barred by the Fourteenth Amendment. The Court 
of Appeals affirmed the judgment on the apparent ground 
that the judgment entered was consistent with the relief 
asked for in the complaint, and that the errors urged were 
at variance with the judgment entered. That judgment is 
here for review.

Specification Of Errors To Be Urged

T h e Court o f  A p p e a ls  e r r e d :

1. In holding that this case was properly decided on the 
grounds that the district court had granted the petitioners 
all the relief which they requested.

2. In sustaining the judgment of the court below in which 
the Fourteenth Amendment is construed as permitting the 
enforcement of regulations requiring racial distinctions in 
the use and enjoyment of golf facilities owned and oper­
ated by the City of Atlanta.

3. In sustaining the judgment of a district court which 
applies the “ separate but equal” doctrine of Plessy v. Fer­
guson to the instant case.



5

Reasons For Allowance Of The Writ

1. The decision of the Court of Appeals is in apparent 
conflict with the decisions of this Court in the School Segre­
gation Cases (Brown v. Board of Education, 347 U. S. 483; 
Bolling v. Sharpe, 347 IT. S. 497) with respect to the scope 
and reach of the Fourteenth Amendment. Under the in­
stant decision, the Court of Appeals condones regulations 
which require racial segregation in the use and enjoyment 
of the public parks of the City of Atlanta. The necessary 
premise upon which this decision rests is that the “ sepa­
rate but equal” doctrine is an appropriate constitutional 
yardstick in the field of public recreation, and that repudia­
tion of that doctrine in the School Segregation Cases ap­
plies only to the field of public education.

It is true, of course, that prior to decision by this Court 
in the School Segregation Cases that lower federal courts 
and state courts had regarded the “ separate but equal” 
doctrine as the basic test to determine the constitutionality 
of state imposed racial segregation in almost all areas of 
state activity. The decisions of this Court, however, do not 
support such all-inclusive application of “ separate but 
equal”. The doctrine was approved by this Court in Plessy 
v. Ferguson, 163 U. S. 537—a case involving transportation. 
It was rejected in Buchanan v. Warley, 245 U. S. 68, as 
inappropriate to the field of housing. It was repudiated 
in the field of public education in the School Segregation 
Cases. Indeed, a reading of that opinion indicates that this 
Court, on reexamination of its own decisions in the field of 
education, does not regard any of those decisions as con­
stituting adoption or approval by this Court of the “ sepa­
rate but equal” doctrine. In Brown v. Board of Education, 
supra, the Court said at page 491:

In the first cases in this Court construing the 
Fourteenth Amendment, decided shortly after its 
adoption, the Court interpreted it as proscribing all



6

state-imposed discriminations against the Negro 
race. The doctrine of “ separate but equal” did not 
make its appearance in this Court until 1896 in the 
case of Plessy v. Ferguson, supra, involving not 
education but transportation. American courts have 
since labored with the doctrine for over half a cen­
tury. In this Court, there have been six cases in­
volving the “ separate but equal” doctrine in the 
field of public education. In Cumming v. County 
Board of Education, 175 IT. S. 528 . . . and Gong 
Lum v. Rice, 275 U. S. 78 . . . the validity of the 
doctrine itself was not challenged. In more recent 
cases, all on the graduate school level, inequality was 
found in that specific benefits enjoyed by white stu­
dents were denied to Negro students of the same 
educational qualifications. Missouri ex rel. Gaines 
v. Canada, 305 U. 8. 337 . . . ; Sipuel v. Oklahoma, 
332 U. S. 631 . . . ; Sweatt v. Painter, 339 U. S. 629 
. . . ; McLaurin v. Oklahoma State Regents, 339 
IT. S. 637 . . . .  In none of these cases was it neces­
sary to reexamine the doctrine to grant relief to the 
Negro plaintiff. And in Sweatt v. Painter . . . the 
Court expressly reserved decision on the question 
whether Plessy v. Ferguson should be held inappli­
cable to public education.

Thus, with the repudiation of the “ separate but equal” doc­
trine in the field of public education in the School Segrega­
tion Cases, there are no decisions of the Supreme Court 
other than those involving transportation in which the doc­
trine has been applied by this Court.

Moreover, the doctrine has never been approved by this 
Court in the field of public recreation. There are only two 
relevant decisions involving public recreation decided by 
this Court and both of those decisions are indications that 
this Court regards its decisions in public education with



7

respect to “ equal protection of the laws” and “ due process 
of law” as applicable in the field of public recreation.

Rice v. Arnold, judg. vacated and remanded, 340 U. S. 
848, judg. aff’d, 54 So. 2d 114 (1951), cert, denied, 342 U. S. 
946, raised the question of the right of Negroes to use city 
owned and operated golf links in Miami, Fla., without 
being subjected to segregation. This Court, granted cer­
tiorari, vacated the judgment below and remanded the cause 
for reconsideration in the light of Sweatt v. Painter, 339 
U. S. 629, and McLaurin v. Oklahoma State Regents, 339 
U. S. 637. On remand, the Florida Supreme Court re­
affirmed its prior judgment and stated that in any event 
petitioner had misconceived his remedy; that if he sought 
to challenge the reasonableness of the court’s judgment, 
the proper procedure would have been for him to file a 
bill for declaratory judgment. It was on this state pro­
cedural ground that this Court based its refusal to grant 
the petition for writ of certiorari when the case again 
reached the Supreme Court. Justices Black and Douglas 
were of the opinion that the petition should be granted.

Sweeney v. Louisville, 102 F. Supp. 525 (W. D. Ky. 
1951), aff’d sub nom. Muir v. Louisville Park Theatrical 
Assn., 202 F. 2d 275 (CA 6th 1953), judg. vacated and re­
manded, 347 U. S. 971. In the Muir case, a private 
theatrical organization holding outdoor theatrical shows in 
a public amphitheater in Louisville, Kentucky was held 
both by the district court and the Court of Appeals to be 
outside the reach of the Fourteenth Amendment when ques­
tion was raised concerning its practice of racial discrimina­
tion. This Court granted the petition for writ of certiorari, 
vacated the judgment and remanded the cause for “ con­
sideration in the light of the Segregation Cases . . . and 
conditions that now prevail.”



8

These two cases clearly demonstrate that this Court 
regards its decisions in the field of public education as 
applicable to the field of public recreation.

Indeed, whatever the present status of the “ separate 
but equal” doctrine, it seems blear that public recreation 
is far closer to public education than it is to intrastate 
transportation. Thus, logic would dictate that decisions 
in public education govern dispositions of similar questions 
in public recreation. Moreover, in Bolling v. Sharpe, supra, 
this Court made clear the fact that racial classifications 
would be scrutinized and tested with “ particular care” , 
and would not be sustained unless “ reasonably related to 
a proper governmental objective.” There it said at page 
499:

Classifications based solely upon race must be 
scrutinized with particular care, since they are con­
trary to our traditions and hence constitutionally 
suspect. As long ago as 1896, this Court declared 
the principle “ that the Constitution of the United 
States, in its present form, forbids, so far as civil 
and political rights are concerned, discrimination by 
the General Government, or by the States, against 
any citizen because of his race.” And in Buchanan 
v. Warley, 245 U. S. . . . the Court held that a 
statute which limited the right of a property owner 
to 'convey his property to a person of another race 
was, an unreasonable discrimination, a denial of 
due process of law.

Although the Court has not assumed to define 
“ liberty” with any great precision, that term is not 
confined to mere freedom from bodily restraint. 
Liberty under law extends to the full range of con­
duct which the individual is free to pursue, and it 
cannot be restricted except for a proper govern­
mental objective . . .



9

Under this test it is manifest that regulations by the 
City of Atlanta in the use and enjoyment of public golf 
courses based upon race and color cannot be justified. For 
if segregation is unreasonable as to public schools where 
attendance is compulsory, certainly it is unreasonable as 
to golf bourses, the use of which is entirely voluntary. The 
doctrine of the School Segregation Cases, we submit, is 
applicable here, and it was error for the court below not to 
apply that doctrine in disposing of this case.

Further, the court below affirms the judgment of the 
district court on the grounds that the petitioners obtained 
all the relief they asked for. That this is a misreading of 
petitioners’ pleadings, we point out infra, but more im­
portantly, the issue here must be whether the state has the 
power to subject the use of its parks to regulations which 
require racial segregation in their use and enjoyment. 
Under the decisions of this Court, we submit, it has no such 
power. Since the decision of the Court of Appeals is at 
variance with those decisions, it cannot be sustained. For 
this reason, we submit, this petition for a writ of certiorari 
should be granted.

2. There is conflict among the Courts of Appeals on 
this question, and that conflict should be resolved by this 
Court.

In Williams v. Kansas City, 205 F. 2d 47 (CA 8th 1952), 
the Court of Appeals affirmed the judgment of the district 
court which had struck down racial segregation in the use 
of a city owned and operated swimming pool as violative 
of the Fourteenth Amendment. The Court of Appeals 
relied upon McLaurin v. Oklahoma State Regents, supra, 
as the basis for its affirmation of the lower court’s judg­
ment. While the court did not hold that the ‘ ‘ separate but 
equal” doctrine was no longer of validity, it felt bound to 
follow the same approach which this Court had followed in



1 0

the McLaurin case. This Court denied a petition for writ 
of certiorari, 346 U. S. 826.

In Dawson v. Mayor, 220 F. 2d 386 (CA 4th 1955), the 
Court of Appeals struck down segregation in public parks 
and bathhouses owned and operated by the City of Balti­
more and the State of Maryland as violative of the Four­
teenth Amendment. The court there relied upon the 
McLaurin case, supra; Brown v. Board of Education, supra; 
Bolling v. Sharpe, supra, and Henderson v. United States, 
339 IT. S. 816, as setting forth the applicable law which 
should be applied in that case. There it said that it is 
obvious “ that segregation cannot be justified as a means 
to preserve the public peace merely because the tangible 
facilities furnished to one race are equal to those furnished 
to the other. ’ ’ There the court felt bound to apply to public 
recreation the same rationale which this Court had used 
in approaching the question of segregation in graduate 
schools and dining cars and public elementary and sec­
ondary schools. That case is now pending in this Court on 
appeal.

Here a contrary position is taken. The Court of Ap­
peals has sustained the authority of the state to impose 
racial distinctions in the use of its public parks and has 
held, by necessary implication that the “ separate but equal” 
doctrine is a valid constitutional yardstick with respect to 
the use and enjoyment of public recreational facilities.

The Fourth and Eighth Circuits are clearly of the view 
that the “ separate but equal” doctrine had been weakened 
or repudiated by more recent decisions of this Court and 
have refused to apply that doctrine in the field of public 
recreation. In fact, the Fourth Circuit is clearly of the 
opinion, as stated supra, that the “ separate but equal” doc­
trine is of no validity and cannot be applied with respect 
to the regulation of public recreational facilities. On the 
other hand, the Fifth Circuit, as evidenced by the opinion 
in the instant case, necessarily takes the view that the



1 1

“ separate but equal” doctrine still has validity and can be 
applied in the field of public recreation.

We submit that the rationale of this Court’s decisions 
in the field of public education—McLaurin v. Oklahoma 
State Regents, supra; Brown v. Board of Education, supra, 
and Bolling v. Sharpe, supra,—are guides to decisions in 
any area where question is raised concerning the constitu­
tionality of state racial restrictions and distinctions. We 
submit that the approach to decisions by the Fourth and 
Eighth Circuits, on one hand, and by the Fifth Circuit, on 
the other, cannot be reconciled. It is important and neces­
sary in the public interest that this Court make clear 
which approach is proper. It is respectfully submitted, 
therefore, that this petition be granted to resolve this con­
flict and clarify the question which these three cases raise.

3. The decision of the Court of Appeals in the instant 
case is contrary to Eule 8f. and 54c. of the Federal Eules 
of Civil Procedure.

Eule 8f. provides as follows:
All pleadings shall be so construed as to do sub­

stantial justice.

Eule 54c. provides:
A judgment by default shall not be different in 

kind from or exceed in amount that prayed for in 
the demand for judgment. Except as to a party 
against whom a judgment is entered by default, every 
final judgment shall grant the relief to which the 
party in whose favor it is rendered is entitled, even 
if the party has not demanded such relief in his 
pleadings.

The decision of the Court of Appeals is a narrow and 
technical reading of the pleadings in this case. Indeed, it 
is a misreading of the complaint because nowhere do peti­



1 2

tioners request a judgment which would permit their use 
of the golf facilities in Atlanta to he subject to rules and 
regulations requiring racial segregation. In their com­
plaint, petitioners prayed (see R. 14, par. 6) for an injunc­
tion restraining and enjoining the respondents “ from 
making any distinction on account of race or color in 
providing opportunities, advantages and facilities for play­
ing the game of golf upon the public golf courses that are 
now provided, owned, maintained and operated by the City 
of Atlanta. . . . ” This, we submit, is unquestionably a prayer 
for relief which encompasses a judgment barring racial 
segregation. Rule 8f. of the Federal Rules of Civil Pro­
cedure, we submit, required the court to so read these 
pleadings, providing they were entitled to relief which 
barred imposition of any racial distinctons whatever.

When the instant action was begun, petitioners and all 
other Negroes were completely excluded from public golf 
courses in Atlanta. In their complaint, petitioners sought 
the right to use the golf courses on the same basis as all 
other citizens. The pleadings here are not, as the Court 
of Appeals seeks to imply, subject to the construction that 
petitioners are merely asking to use the golf courses sub­
ject to racial segregation pursuant to the “ separate but 
equal” doctrine. Rather, the complaint seeks to have the 
state officials enjoined from making any distinctions what­
soever in the use and enjoyment of the golf course. More­
over, if the state is empowered to impose segregation in 
the use of the golf courses, the fact that petitioners prayed 
that it not be imposed would be of little moment insofar 
as their entitlement to relief is concerned. On the other 
hand, if the state is not empowered to impose segregation in 
the use of these facilities (as we contend), then a decision 
which requires that the public golf facilities in question 
be opened to Negroes would necessarily require that these 
facilities be made available, subject only to the same 
rules and regulations applicable to all other persons.



1 3

We submit, therefore, that the court below was required 
to grant to petitioners all the relief to which they were 
entitled irrespective of whether such relief was prayed for 
in the pleadings. This has been the construction of Rule 
54c. Blazer v. Black, 196 F. 2d 139 (CA 10th 1952); Carter 
Oil Co. v. McCasland, 190 F. 2d 887 (CA 10th 1951), cert 
denied 342 U. S. 870, rehearing- denied 342 U. S. 899; 
Gardner v. Mid-Continent Grain Co., 168 F. 2d 819 (CA 
8th 1948); Roth v. Fahrikant Bros., Inc., 175 F. 2d 665 (CA 
2d 1949); Cohen v. Randall, 137 F. 2d 441 (CA 2d 1943), 
cert, denied 320 U. 8. 796; Del Balso v. Carosza, 136 F. 2d 
280 (C. A. D. C. 1943); Hawkins v. Frick-Reid Supply 
Corp., 154 F. 2d 88 (CA 5th 1946).

The decision here is at variance with both these univer­
sally accepted and well-recognized rules of federal practice 
and this Court should grant this petition for writ of 
certiorari to bring this decision in line with applicable rules 
governing the conduct of federal courts.

Conclusion

W herefore, for the reasons hereinabove stated, this 
petition for writ of certiorari should be granted, and the 
judgment of the court below should be reversed and re­
manded without argument based on the decision of this 
Court in the School Segregation Cases.

Respectfully submitted,

Of Counsel:
R. E, T homas, J r.,
S. S. R obinson.

R obert L. Carter,
T htjrgood Marshall,
E. E. Moore,

Counsel for Petitioners.