Oklahoma City Public Schools Board of Education v. Dowell Joint Appendix Vol. III

    C . 7P. .

IIIIITED SOTS COURT OF 4FPHLS
FOR THE SIXTH CIRCUIT.

JAMES W. MUIR, Appellant,

versus

LOUISVILLE PARK THEATRICAL 
ASSOCIATION, . . . . Appellee.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES 
FOE THE WESTERN DISTRICT OF KENTUCKY.

T R A N S C R I P T  OF R E C O R D .

TRANSCRIPT FILED

Attorneys for Appellant:

Attorneys for Appellees:

ROBERT L. CARTER,
20 West 40th St.,
New York 18, N. Y.
BENJAMIN F. SHOBE,
829 W. Broadway,
Louisville, Kentucky.
GILBERT BURNETT,
For City of Louisville and T. Byrne 
Morgan, Director of Parks and Recrea­
tion for the City of Louisville,
200 City Hall,
Louisville, Kentucky.
DONALD Q. TAYLOR,
For Louisville Park Theatrical Asso­
ciation, Inc.,
1212 Kentucky Home Life Bldg., 
Louisville, Kentucky.

W E S T E R F 1 E L D -B O N T E  C O .,  IN C O R P O R A T E D . L O U IS V IL L E , K Y .





I NDEX

PAGE
Complaint.........................................................................  2
Motion................................................................................  9
O rder................................................................................. 11
Amended Complaint........................................................  12
Motion to Dismiss............................................................ 15
Answer of Defendant, Louisville Park Theatrical As­

sociation, Inc., to an Amended Complaint.............  15
Agreed Order................................................   17
Stipulation of F acts.......................................................  18
Memorandum.................................................................... 20
Judgment..............   36
Notice of A ppeal.............................................................. 38
Appeal Bond.......................................   39
Designation of the Contents of Becord on Appeal.........  40
Order Extending Time....................................................  40
Order . . ..............................................    41
Transcript of Evidence...............................   41
Exhibit 1 for Iden. (Tendered)......................................  62
Exhibit 2 for Iden. (Tendered)......................................  71
Exhibit 3 ............................................................................ 74
Reasons and Grounds for Appeal.............................   80
Stipulations as to Contents of Record on Appeal......... 81
Clerk’s Certificate.........................................................    82





T R A N S C R I P T  OF R E C O R D

Proceedings in the District Court of the United States for 
the Western District of Kentucky, at Louisville, at a 
regular term begun and held in Federal Court Room 
on the 8th day of March, 1949.

Present: Honorable Roy M. Shelbourne, Judge, United 
States District Court for the Western District of Kentucky.

Louisville No. 1723.
P. 0. Sweeney,
Mona Carroll, and
James W. Muir, - ..................................Plaintiffs,

v.

City of Louisville,
T. Byrne Morgan, Director of Parks and Recrea­

tion for the City of Louisville,
Louisville Park Theatrical Association, a Cor­

poration, - - - - - -  Defendants.

Be It Remembered that heretofore, to wit, on July 28th, 
1949, came the above Plaintiffs, by counsel, and tendered 
the Complaint which was filed in the Clerk’s Office of this 
Court, and which is in words and figures as follows:



UO
'

2

COMPLAINT—Filed July 28, 1949.

I.
A.

The jurisdiction of this Court is invoked under Title 28, 
United States Code, section 1331, this being a suit which 

yl'ys arises under the Constitution and laws of the United States, 
viz., the Fourteenth Amendment to said Constitution and 

n "Title 8, United States Code, section 41 and 43, wherein the 
matter in controversy exceeds, exclusive of interest and 

- cost, the sum of Three Thousand Dollars ($3,000).
The jurisdiction of this Court is also invoked under 

Title 28, United States Code, section 1343 (3), this being a 
H Ys) suit authorized by law to be brought to redress the depriva­

tion under color of State statute, ordinance, regulation, 
custom, or usage of rights, privileges and immunities se­
cured by the Constitution, and of rights secured by the law 
of the United States, viz., Title 8, United States Code, sec­
tion 41 and 43.

II.
Plaintiffs further show that this is a proceeding for 

declaratory judgment and injunction under Title 28, United 
States Code, section 2201, for the purpose of determining 
questions in actual controversy between the parties, to wit:

1. the question of whether the custom and prac­
tice of defendants in denying plaintiffs and other Negro 
citizens of the City of Louisville, Kentucky, on account 
of their race or color, the right and privilege of using 
and enjoying certain and sole recreational, athletic, 
playground, swimming, golf, and entertainment facil­
ities maintained and operated by the defendants, City 
of Louisville and T. Byrne Morgan, as Director of 
Parks and Recreation of the City of Louisville, out of 
public funds, is unconstitutional and void as being in 
violation of the Fourteenth Amendment to the Consti­
tution and laws of the United States and of the Com­
monwealth of Kentucky;



3

2. the question of whether the custom and prac­
tice of the defendant, Louisville Park Theatrical Asso­
ciation, a corporation, in denying and refusing plaintiffs 
admission to the amphitheatre operated by said de­
fendants at Iroquois Park, a public park maintained 
by defendants, City of Louisville and T. Byrne Morgan, 
as Director of Parks and Recreation of the City of 
Louisville, out of public funds, solely on account of 
their race and color, is unconstitutional and void as 
being in violation of the Fourteenth Amendment to the 
Constitution and laws of the United States and of the 
Commonwealth of Kentucky.

III.
Plaintiffs are citizens of the United States and the State 

of Kentucky and are residents of and domiciled in the City 
of Louisville, Kentucky. Plaintiffs are entitled under the 
Constitution and laws of the United States to the use of the 
recreational, athletic, swimming, golf, park and entertain­
ment facilities maintained, owned or operated in whole or 
in part by the City of Louisville out of public funds without 
discrimination against them because of their race or color. 
Adult plaintiffs are taxpayers of the City of Louisville, 
State of Kentucky and of the United States. All plaintiffs 
are Negroes and bring this suit in their own behalf and 
allege that there is a common question of law and fact 
affecting the rights of all Negroes residing in the City of 
Louisville, Kentucky, similarly situated, and a common 
relief is sought, and pursuant to rule 23 of the Federal 
Rules of Civil Procedure bring this suit also on behalf of 
all other persons, citizens and residents of the City of 
Louisville, Kentucky, similarly situated and affected as will 
hereinafter more fully appear.

IV.
The defendant, City of Louisville, is a municipal cor­

poration exercising the power and authorities heretofore 
granted it by the Constitution and laws of the State of 
Kentucky.

Complaint



4

The defendant, T. Byrne Morgan, is the duly authorized 
and acting Director of Parks and Recreation for the de­
fendant, City of Louisville.

The defendant, Louisville Park Theatrical Association, 
is a corporation created and existing under and pursuant 
to the laws of the State of Kentucky and maintains and 
operates at the Iroquois Park, a structure, commonly called 
“ The Amphitheatre”  wherein musical shows, presenta­
tions, theatrical plays, skits and other forms of entertain­
ment are presented throughout the summer months. 
George E. Gans is the authorized and designated person 
to receive process for the said Louisville Park Theatrical 
Association.

V.
Pursuant to powers vested in him as the duly authorized 

agent of defendant, City of Louisville, the defendant, 
T. Byrne Morgan, for the purpose of providing for and 
promoting public athletic, recreational and entertainment 
activities for the people of the City of Louisville, maintains, 
operates and controls certain public municipal parks, play­
grounds, athletic fields,, swimming pools, and golf courses 
in the City of Louisville, each of which said facility is 

. unique.
VI.

At all times material herein, the defendant, City of 
Louisville and T. Byrne Morgan, as director of Parks and 
Recreation of the City of Louisville, have promulgated and 
enforced a policy, custom, usage and practice of limiting 
plaintiffs and other Negro citizens similarly situated to 
the use of certain alleged parks, playgrounds, athletic 
fields and swimming pools and denying them admission to 
each and every publicly maintained park, playgrounds, 
athletic fields and swimming pool and golf course solely 
because of their race or color, except those so designated.

Defendants, City of Louisville, and T. Byrne Morgan, 
as Director of Parks, and Recreation of the City of Louis­
ville, maintain* and operate five alleged parks with a total 
acreage of approximately 153.81 and limit plaintiffs and 
other Negroes similarly situated, because of their race or

Complaint



5

color, to the use of these inadequate unsanitary and incom­
plete facilities.

Defendants, City of Louisville and T. Byrne Morgan, 
as Director of Parks and Recreation of the City of Louis­
ville, maintain and operate 23 parks totaling approximately 
2,267.5 acres, and located to a great extent, in the beautiful 
outlying areas of the City of Louisville, on premises natur­
ally suited for recreation and contain among other things, 
five golf courses, of varying sizes and types, an amphi­
theatre, numerous pavilions, many acres of woodland, pro­
visions for winter sports, such as skiing and ice skating, 
at least one lake for fishing, facilities for archery, a number 
of baseball fields, provisions for football, beautiful well- 
kept picnic grounds, and adequate sanitary, and well 
cared-for swimming pools and attendant facilities. Pur­
suant to the above-mentioned policy, practice, custom, and 
usage, plaintiffs and other Negroes similarly situated are 
denied admission to or the use of any of the above men­
tioned facilities.

On or about the 21st day of July, 1949, plaintiff P. 0. 
Sweeney, being desirous of playing golf and having pro­
vided himself with all the equipment necessary for playing 
golf and being ready, willing and able to meet all lawful, 
uniform requirements and to pay all lawful, uniform fees 
for the use of the public golf course provided by defend­
ants, City of Louisville, and further being desirous of 
developing and practicing special skills that may be de­
veloped in practice by playing golf, applied in a proper and 
lawful manner to the agent of the defendants, City of 
Louisville and T. Byrne Morgan, as Director of Parks and 
Recreation of the City of Louisville, at the Cherokee golf C A 
course at a proper hour when the golf course was open to 
the public for permission to play golf on the said golf 
course. He tendered himself ready, willing and able to 
meet all lawful uniform requirements and to pay all lawful, 
uniform fees for the use of said golf course. Nevertheless, 
the agent of the said defendants, under instruction from the 
said defendants, arbitrarily and illegally denied him per­
mission to play on said golf course.

Complaint



6

Thereafter, plaintiff requested defendants, City of 
Louisville and T. Byrne Morgan, as Director of Parks and 
Recreation of the City of Louisville, to grant him permission 
to play on said golf course and the other golf courses main­
tained by said defendants under terms and conditions uni­
formly applicable to all citizens of the City of Louisville, 
whereupon he was informed of the policy and practice of 
said defendants in limiting Negroes to the use of certain 
designated parks whereupon no golf course is maintained, 
thereby arbitrarily and illegally denying plaintiff, P. 0. 
Sweeney’s request.

VII.

Complaint

Plaintiff, Mona Carroll, an infant, being desirous of 
observing the fishing facilities, located at Cherokee Park, 
to develop skills of her own in fishing, attempted on the 
23rd day of July, 1949, to secure permission from the agent 
of the defendant, City of Louisville, in. charge of City parks, 
to go to the said lake for the purpose of observation, as 
herein before stated. She says that the said agent, under 
instruction from his employer arbitrarily and illegally 
denied said plaintiff the right to go upon the grounds 
abutting said lake, and located in said Cherokee Park.

Thereafter, plaintiff, Mona Carroll, by and through her 
father, Alfred M. Carroll, requested defendants, City of 
Louisville and T. Byrne Morgan, as Director of Parks and 
Recreation of the City of Louisville, to grant her permission 
to use said fishing facilities and all other recreational facil­
ities maintained by said defendants under terms and condi­
tions uniformly applicable to all citizens of the City of 
Louisville, whereupon she was informed of the policies and 
practices of said defendants in limiting Negroes to the use 
of designated parks, in which no fishing lake is maintained, 
thereby arbitrarily and illegally denying plaintiff, Mona 
Carroll’s request.

VIII.
Plaintiff, James W. Muir, on or about the 22nd day of 

July, 1949, being desirous of listening to and enjoying 
“ Maytime,”  a musical presentation being presented to the 
public for their benefit and enjoyment at the Iroquois



7

Amphitheatre by the Louisville Park Theatrical Associa­
tion, applied in a proper and lawful manner to the agent 
of the Louisville Park Theatrical Association and tendered 
money to cover the purchase price of one ticket for the said 
presentation, and held himself ready, willing and able to 
meet all other lawful, uniform requirements for admission 
to said amphitheatre. Nevertheless, the agent of defend­
ant, Louisville Park Theatrical Association, under instruc­
tion from his employer, arbitrarily and illegally denied 
plaintiff, James W. Muir, an admission ticket to said 
amphitheatre.

IX.
As a result of the defendants’ arbitrary and illegal ac­

tion as aforesaid, plaintiffs have suffered public humilia­
tion and embarrassment resulting in mental and physical 
distress. They have been denied the equal protection of 
the laws as guaranteed by the Fourteenth Amendment and 
have been deprived of their civil rights under 8 United 
States Code, section 41, and unless this Court grants relief, 
defendants will continue to deprive plaintiffs of their civil 
rights and they will suffer irreparable injury.

X.
There is between the parties an actual controversy as 

hereinbefore set forth.
Wherefore, the premises considered, plaintiffs pray 

that:
1. Proper process may issue and be directed to 

each of the defendants named herein, requiring them 
to appear and answer the exigencies of this complaint.

2. This Court, judge, decree and declare the rights 
and legal relations of the parties to the subject matter 
here in controversy in order that such declaration shall 
have the force and effect of a final judgment or decree.

3. This Court enjoin the defendants, City of Louis­
ville and T. Byrne Morgan, as Director of Parks and 
Recreation of the City of Louisville, and each of them, 
permanently from denying plaintiffs, or other Negroes 
similarly situated, permission to play on the Cherokee

Complaint



8

golf course or any other public golf course maintained, 
operated and controlled by the said defendants, upon 
their complying with the lawful, uniform rules and 
regulations and upon their paying the lawful, uniform 
fees applicable alike to all citizens of the City of 
Louisville.

4. This Court enter a judgment and decree declar­
ing the policy, custom, usage and practice of defend­
ants in establishing, maintaining and operating modern, 
well-staffed and equipped facilities for the recreation, 
entertainment and athletic participation of white 
youths while at the same time limiting Negro youths 
to the use of old, dilapidated, poorly-equipped, under­
staffed athletic, recreation and entertainment facilities 
on account of their race or color is a denial of the equal 
protection of the laws guaranteed by the Fourteenth 
Amendment to the United States Constitution and is 
therefore unconstitutional and void.

5. This Court issue a permanent injunction forever 
restraining and enjoining the defendants and each of 
them from making any distinction on account of race 
or color in providing for the recreation, entertainment 
and athletic participation of Negro and white citizens 
of the City of Louisville.

6. The defendant, Louisville Park Theatrical As­
sociation, Inc., be permanently enjoined from denying 
the plaintiffs or other similarly situated admission to 
any and all musical, theatrical, or other presentations 
at the amphitheatre upon their complying with the 
lawful, uniform rules and regulations and upon their 
paying the lawful uniform fees applicable alike to all 
citizens of the City of Louisville.

7. The plaintiffs may have their costs herein ex­
pended and for such other and further relief as may 
to the Court seem proper in the premises.

Benjamin F. Shobe,
614 W. Wal.,

James A. Crumlin,
524 W. Wal.,

Franklin H. Williams,
20 W. 40th St.,
New York 18, N. Y,

Complaint



State of Kentucky )
County of Jefferson }

VERIFICATION.
P. 0. Sweeney, James W. Muir, of legal age and Mona 

Carroll, an infant by Alfred M. Carroll, her father and next 
friend, being first duly sworn by oath, state: that they are 
the plaintiffs named in the foregoing petition; that they 
have read the same and know the contents thereof and that 
the facts stated therein are true.

James W. Muir, Jr.,
P. 0. Sweeney,
Mona R. Carroll,

An Infant,
Alfred M. Carroll,

Father and Next Friend of Infant.

9

Complaint

Subscribed and sworn to before me this 27th day of 
July, 1949.

My commission expires January 16, 1953.

(Seal)

James A. Crumlin, 
Notary Public, 

Jefferson County, Ky.

MOTION TO DISMISS—Filed August 16, 1949.

The defendant, Louisville Park Theatrical Association, 
Inc., moves the Court:

(1) To dismiss the action because the complaint fails to 
state a claim against the defendant, Louisville Park Thea­
trical Association, Inc., upon which relief can be granted.

(2) To dismiss the action on the grounds of failure to 
state facts sufficient to give this Court jurisdiction over the



Motion to Dismiss
subject matter under the Fourteenth Amendment of the 
Constitution of the United States and Sections 41 and 43 of 
Title 8 of the United States Code and Section 1343 (3) of 
Title 28 of the United States Code.

(3) To dismiss the action as to the defendant, Louis­
ville Park Theatrical Association, Inc., on the grounds that 
there is a misjoinder of parties defendant and plaintiff and 
a misjoinder of causes of action herein or in lieu thereof 
for an order directing that the action against the defend­
ant, Louisville Park Theatrical Association, Inc., be severed 
from the action against the defendants, City of Louisville 
and T. Byrne Morgan, Director of Parks and Recreation for 
the City of Louisville, and the plaintiff J. W. Muir, be di­
rected to proceed separately against said defendant, Louis­
ville Park Theatrical Association, Inc.

Donald Q. Taylor, 
Attorney for Defendant, Louisville 

Park Theatrical Association, Inc., 
1212 Kentucky Home Life Build­
ing, Louisville, Ky.

10



11

ORDER—Entered December 1,1949.

Upon motion of the defendants, by counsel, the argu­
ment upon the Motions to Dismiss heretofore filed by City 
of Louisville, T. Byrne Morgan, Director of Parks and 
Recreation for the City of Louisville, and Louisville Park 
Theatrical Association, is hereby passed generally from 
9:30 A.M., December 2, 1949, to a day to be agreed upon 
between the parties hereto and convenient to the Court.

Roy M. Shelbourne,
Agreed to: Judge.
P. 0. Sweeney,
Mona Carroll, an infant, by Alfred M. Carroll, 

her father and next friend,
James W. Muir,

By Ben F. Shobe,
Attorney.

City of Louisville,
By Gilbert Burnett,

Attorney.
T. Byrne Morgan, Director of Parks and 

Recreation for the City of Louisville,
By Gilbert Burnett,

Attorney.
Louisville Park Theatrical Association,

By Donald Q. Taylor,
Attorney. G. C.

ORDER—Entered March 27,1950.
On motion of plain tiff James M. Muir, by Counsel, and 

by agreement of Counsel for defendants, the time for filing 
amended complaint by plaintiff James M. Muir is extended 
to April 10, 1950. Said amended complaint was due to be 
filed March 27,1950.

Roy M. Shelbourne,
U. S. District Judge.



12

For their amended complaint served pursuant to oral 
permission granted by the Honorable Justice Sbelbourne on 
the tenth day of March, 1950:

Plaintiffs reallege each and every allegation contained 
in paragraphs IA, IB, II subdivisions (1), (2), and III.

In lieu and in the stead of the allegations contained in 
paragraph numbered “IV” of the original complaint herein 
plaintiffs allege as follows:

“IV That the defendant, City of Louisville is a munici­
pal corporation exercising the power and authorities here­
tofore granted it by the Constitution and Laws' of the 
State of Kentucky;

That defendant, T. Byrne Morgan is the duly-authorized 
and acting Director of Parks and Recreation for the defend­
ant City of Louisville;

That the defendant Louisville Park Theatrical Associa­
tion is a corporation created and existing under and pur­
suant to the Laws of the State of Kentucky; that said cor­
poration maintains and operates at the Iroquois Park one. 
of the public facilities owned by the defendant City of 
Louisville, a structure commonly called and designated as 
the ‘Amphitheater’ wherein musical shows, presentations, 
theatrical plays, skits and other forms of entertainment are 
presented throughout the summer months;

That George E. Gans is the authorized and designated 
person to receive process for the said Louisville Park 
Theatrical Association;

That upon information and belief, the said defendant 
Louisville Park Theatrical Association in maintaining and 
operating the said ‘Amphitheater’ on public property to- 
wit, Iroquois Park, is carrying on a public function as agent 
of the defendant City of Louisville and/or T. Byrne Morgan 
as Director of Parks and Recreation for the said City of 
Louisville;

That upon information and belief said defendant Louis­
ville Park Theatrical Association pays no compensation to 
the defendant City of Louisville for the use and occupancy

AMENDED COMPLAINT—Filed April 10,1950.



13

of the public property upon which the said ‘Amphitheater’ 
is located, nor has the said defendant Louisville Park 
Theatrical Association purchased or leased such property.”

Plaintiffs reallege each and every allegation set forth in 
paragraphs Y, VI, and VII of the original complaint filed 
herein.

Plaintiffs reallege each and every allegation set forth in 
paragraph numbered VIII of the original complaint herein 
and allege in addition thereto the following: “that plaintiff 
James W. Muir was arbitrarily and illegally denied the ad­
mission ticket to the said ‘Amphitheater’ by the agent , of 
defendant Louisville Park Theatrical Association solely 
because of his race or color.”

Plaintiffs reallege each and every allegation set forth in 
paragraphs numbered IX and X of the original complaint 
herein.

Wherefore, the premises considered plaintiffs pray that 
this honorable court grant the relief prayed for and re­
quested in the original complaint herein.

Benjamin F. Shobe,
614 W. Walnut Street, 
Louisville, Kentucky.

James A. Crumlin,
524 W. Walnut Street, 
Louisville, Kentucky.

Franklin II. Williams,
20 West 40th Street,
New York, 18, New York.

Amended Complaint



State of Kentucky,
County of Jefferson.

VERIFICATION.
P. O. Sweeney, James W. Muir, of legal age, and Mona 

Carroll, an infant by Alfred M. Carroll, her father and next 
friend, being first duly sworn by oath, state: That they are 
the plaintiffs named in the foregoing petition; that they 
have read the same and know the contents thereof and that 
the facts stated therein are true.

P. O. Sweeney,
James W. Muir,
Mona A. Carroll,

An Infant,
Alfred M. Carroll,

Father and Next Friend of Infant.

Subscribed and sworn to before me this 7th day of 
April, 1950.

Benjamin F. Shobe, 
Notary Public, Jeff. Co., Ky.

My commission expires Feb. 1,1951.
Copies of this Amended Complaint have been mailed to 

the attorneys for the defendants.
Mr. Donald Taylor,
Mr. Gilbert Burnett.

14

Amended Complaint



15

The defendant, Louisville Park Theatrical Association, 
Inc., moves the Court:

(1) To dismiss the action because the complaint as 
amended fails to state a claim against the defendant, Louis­
ville Park Theatrical Association, Inc., upon which relief 
can be granted.

(2) To dismiss the action on the grounds of failure to 
state facts sufficient to give this Court jurisdiction over the 
subject matter under the Fourteenth Amendment to the 
Constitution of the United States and Sections 41 and 43 of 
Title 8 of the United States Code and Section 1343 (3) of 
Title 28 of the United States Code.

Donald Q. Taylor, 
Attorney for Defendant, Louisville 

Park Theatrical Association, Inc., 
1212 Kentucky Home Life Build­
ing, Louisville, Kentucky.

MOTION TO DISMISS—Filed May 20,1950.

ANSWER OF DEFENDANT, LOUISVILLE PARK THE­
ATRICAL ASSOCIATION, INC., TO AN AMENDED 
COMPLAINT—Filed October 21,1950.

The defendant, Louisville Park Theatrical Association, 
Incorporated (hereinafter called Park Theatrical), for its 
answer to the plaintiffs’ complaint as amended states as 
follows, to-wit:

FIRST DEFENSE.
Park Theatrical denies all the allegations contained in 

the plaintiffs’ complaint as amended, except the following 
designated allegations therein, which the Park Theatrical 
admits, in respect o f:

(1) Park Theatrical’s corporate organization and ex­
istence.



16

Answer of Defendant, Etc.
(2) The authority of George E. Gang to receive process 

for Park Theatrical.
Wherefore, the defendant, Louisville Park Theatrical 

Association, Incorporated, prays to be hence dismissed, for 
its costs herein expended, and for any other relief to which 
it may appear entitled.

Donald Q. Taylor,
1212 Kentucky Home Life Bldg., 
Louisville, Kentucky,

Counsel for Louisville Park Theatrical 
Association, Incorporated.

A copy of the above answer was mailed to Benjamin P. 
Shobe, 304 South 7th Street, Louisville, Kentucky, Coun­
sel for Plaintiffs on October 21,1950.

Donald Q. Taylor,
1212 Kentucky Home Life Bldg., 

Counsel for Louisville Park Theatrical 
Association, Incorporated.



17

AGREED ORDER

This case having been assigned for trial on May 7, 1951, 
and it appearing to the Court that the City of Louisville, by 
counsel, has heretofore requested that the case be reassigned 
for trial, and the parties hereto having agreed to such 
reassignment, and the Court being sufficiently advised, it is 
hereby ordered that this action be assigned to June 11,1951 
for trial.

Roy M. Shelbourne, 
District Judge.

Benjamin F. Shobe,
Counsel for Plaintiffs.

Gilbert Burnett,
City Attorney,

Robert W. Meagher,
Assistant City Attorney,

Counsel for Defendants, City of Louisville 
and T. Byrne Morgan.

Donald Q. Taylor,
Counsel for Defendant, Louisville 

Park Theatrical Association.

ORDER—-Entered June 16,1951.

On motion of the plaintiff, this case is set down for trial 
Monday August 6,1951, at 9:30 A. M.

Roy M. Shelbourne,
XL S. District Judge.



18

Come the plaintiff, James W. Muir, and the defendant, 
Louisville Park Theatrical Association, Incorporated, by 
Counsel, and stipulate as follows:

I.
That in 1938 the Board of Park Commissioners of the 

City of Louisville, Kentucky, set aside a certain portion of 
Iroquois Park as the site for an amphitheatre and caused to 
be erected thereon a structure now known as the Iroquois 
Amphitheatre.

That the defendant, Louisville Park Theatrical Associa­
tion, Incorporated, contributed the sum of $5,000 (or more) 
to the Board of Park Commissioners of the City of Louis­
ville; said sum to be used towards the cost of constructing 
the Iroquois Amphitheatre. The remaining cost of con­
structing said Amphitheatre came out of public funds.

That in 1942 the City of Louisville acquired title to said 
Iroquois Amphitheatre from the Board of Park Commis­
sioners of the City of Louisville and now, and at all times 
mentioned herein, owns and maintains said structure known 
as the Iroquois Amphitheatre.

II.
That the defendant, Louisville Park Theatrical Associa­

tion, Incorporated, is a non-stock, non-profit, private corpo­
ration, organized and existing under the laws of Kentucky.

That the defendant, Louisville Park Theatrical Associa­
tion, Incorporated, entirely at its own expense and under its 
sole direction and supervision, produces and presents cer­
tain theatrical productions in Louisville, Kentucky for 
which a fee for admission is charged.

That the defendant, Louisville Park Theatrical Associa­
tion, Incorporated, under and by virtue of a written Agree­
ment with the City of Louisville, dated May 14,1947, a copy 
of which is filed herewith and made a part hereof, presented, 
entirely at its own expense, certain theatrical productions 
at the Iroquois Amphitheatre during the following dates in 
each of the following years:

STIPULATION OF FACTS—Filed August 6, 1951.



19

Stipulation of Facts
July 1st through August 10th, 1947 
July 5th through August 14th, 1948 
July 11th through August 21st, 1949 
July 10th through August 6th, 1950 
July 6th through August 19th, 1951

That the defendant, Louisville Park Theatrical Associa­
tion, Inc., presented its theatrical productions at the Na­
tional Theatre, Louisville, Kentucky, during the summer of 
1944.

That no theatrical productions were presented by the 
Louisville Park Theatrical Association, Inc., during the 
year 1945.

III.
That the defendant, Louisville Park Theatrical Associa­

tion, Incorporated, or one of its agents, on July 22, 1949, 
declined to sell to the plaintiff, James W. Muir, a ticket of 
admission to a performance of “Blossom Time,” a theatrical 
production then being presented by the defendant, Louis­
ville Park Theatrical Association, at Iroquois Amphithe­
atre, because of the fact that he was and is a colored person 
of Negro blood and African descent.

Benjamin P. Shobe,
James A. Crumlin,
Robert C. Carter,

Counsel for Plaintiff, James W. Muir. 
Donald Q. Taylor,

Counsel for Defendant, Louisville 
Park Theatrical Association, Incor­
porated.



20

This action was filed July 28, 1949, by P. 0. Sweeney, 
Mona Carroll, an infant suing by her Father and next friend 
Alfred M. Carroll and James W. Muir, plaintiffs, against 
City of Louisville, T. Byrne Morgan, Director of Parks and 
Recreation for the City of Louisville and Louisville Park 
Theatrical Association, a corporation, defendants.

Jurisdiction in the complaint, was invoked under Sec­
tions 1331 and 1343, subsection (3) Title 28, and Sections 41 
and 43 of Title 8, United States Code, to obtain a declara­
tion of rights under the authority of Section 2201 of Title 
28 United States Code.

It was alleged that the three plaintiffs were citizens, 
residents and taxpayers of the City of Louisville and en­
titled under the Constitution and laws of the United States 
to the use of the recreational, athletic, swimming, golf, park 
and entertainment facilities maintained, owned or operated 
in whole or in part by the City of Louisville by the expendi­
ture of public funds.

All of the plaintiffs are Negroes and bring this suit in 
their own behalf and for the use and benefit of all other 
persons, citizens and residents and taxpayers of the City 
of Louisville similarly situated and affected, as plaintiffs 
allege they are, pursuant to Rule 23 of the Federal Rules 
of Civil Procedure.

It was alleged that at all times referrred to by the plain­
tiffs, the City of Louisville, its Director of Parks and 
Recreation, T. Byrne Morgan, had promulgated and en­
forced a policy, custom, usage and practice of limiting- 
plaintiffs and all other Negro citizens to the use of certain 
parks, playgrounds, athletic fields, and swimming pools and 
denying them admission to other parks, playgrounds, ath­
letic fields, swimming pools and golf courses, solely because 
of their race and color; that the City of Louisville, its Direc­
tor of Parks and Recreation, maintain and operate twenty- 
three parks totalling approximately 2,267.5 acres advan­
tageously located in the City of Louisville, equipped with 
five golf courses, an amphitheater, pavilions, provisions for 
winter sports, a lake for fishing, to all of which plaintiffs

MEMORANDUM—Filed September 14,1951.



and the class represented by them were denied admission. 
That on or about the 21st day of July, 1949, plaintiff P. 0. 
Sweeney, offering to pay all uniform charges and fees for 
the use of public golf courses, applied in a proper and law­
ful manner for permission to play golf on the Cherokee golf 
course, located in Cherokee park.

Notwithstanding his offer to comply with all of the rea­
sonable rules and regulations applicable to persons using 
the golf course, he was arbitrarily and illegally denied per­
mission to play, being informed by the defendant Morgan 
that a policy and practice prevailed which limited Negroes 
to the use of designated parks whereupon no golf course 
was maintained.

Plaintiff, Mona Carroll, applied for permission to fish in 
the Lake where white citizens were permitted to fish and 
was arbitrarily and illegally denied admission to the Park, 
because of her race and color, and alleged that no lake and 
no fishing facilities were maintained in any of the parks to 
which Negroes were admitted.

The plaintiff James W. Muir alleged that on or about 
the 22d day of July, 1949, he sought admission, and tendered 
the requisite admission charge, to the Amphitheatre main­
tained by the defendant City of Louisville in Iroquois Park 
and was denied admission because of the custom, practice 
and policy complained about by all the plaintiffs.

Plaintiffs sought a declaration of rights, declaring the 
policy, custom, usage and practice of excluding Negroes 
from the amusement and recreational facilities described in 
the complaint and located in the parks alleged to be owned 
and maintained by the City, to be in violation of the Four­
teenth Amendment and therefore unconstitutional and void 
and sought an injunction restraining and enjoining defend­
ants and each of them from continuing in force and practice 
the alleged discrimination.

Various motions were interposed by the defendants and 
on April 10, 1950, the complaint was amended and on May 
22, 1950, the City of Louisville and defendant T. Byrne 
Morgan, filed answer denying each and every allegation of 
the complaint except those relating to the corporate ex­
istence of the City of Louisville and those relating to the

21

Memorandum



22

fact that T. Byrne Morgan was at the time, the duly au­
thorized and acting Director of Parks and Recreation for 
the City of Louisville.

Affirmatively, these defendants plead in bar of the 
right of plaintiffs to maintain this action, that on January 
5, 1948, a judgment was entered dismissing a petition, as 
failing to state a cause of action, then pending in the Jeffer­
son Circuit Court, Chancery Branch, styled “Dr. P. O. 
Sweeney v. City of Louisville, et al.” which was alleged to 
have been an action instituted by the same parties as plain­
tiffs and involving the same questions as presented in the 
present suit. An attested copy of the transcript of the 
Jefferson Circuit Court action was filed and made a part of 
the answer.

It was further alleged that an appeal was prosecuted 
from the judgment of the Jefferson Circuit Court to the 
Court of Appeals of Kentucky, wherein the judgment of 
the lower Court was affirmed by the Appellate Court Feb­
ruary 22, 1949, as reported in 309 Kentucky Reports, 465, 
281 S. W. 2d 30.

Defendants alleged that plaintiffs in the State Court 
action took the necessary steps to obtain a review of the de­
cision of the Court of Appeals of Kentucky by the Supreme 
Court of the United States, but abandoned the effort to 
appeal, after securing an extension of time for the filing of a 
petition for writ of certiorari October 21, 1950.

Defendant, Louisville Park Theatrical Association, Inc., 
filed its answer, denying all of the material allegations of 
the complaint and amendment.

The case was tried to the Court without a jury on 
August 6,1951.

FINDINGS OF FACT.
The parties have stipulated substantially all of the facts, 

and at the trial, the City of Louisville introduced defendant, 
T. Byrne Morgan, Director of Parks and Recreation of the 
City of Louisville since 1942, William A. Moore, Superin­
tendent of Recreation for the City for the past fourteen 
years and Colonel Carl Heustis, Chief of Police of the City 
of Louisville.

Memorandum



From the stipulation of facts filed by the parties and 
the testimony, the Court finds—

1. That the plaintiffs in this action are citizens and 
residents of Louisville, in the State of Kentucky; that 
defendant T. Byrne Morgan, as Director of Parks and 
Recreation for the City of Louisville, enforces the policy 
adopted and continued in force, limiting the plaintiffs and 
other Negro citizens to the use of certain parks, play­
grounds, athletic fields, and swimming pools, none of which 
contains a golf course, running stream, bridle paths, hiking 
trails, high peak lookout, or an Amphitheatre.

2. That the plaintiffs were denied admission to the 
parks set aside for the exclusive use of the white citizens 
solely and only on the ground that they are colored persons 
of African descent and of Negro blood, pursuant to regu­
lations of the Director of Parks and Recreation, which 
regulations have been in force continuously since May 29, 
1928.

3. That in 1938, the Board of Park Commissioners of 
the City of Louisville set aside a portion of Iroquois Park, 
the total acreage of which is 676.4 acres, on which was 
erected an Amphitheatre. The cost of the Amphitheatre 
was borne by the City of Louisville, except for a contribu­
tion of $5,000 made by the Louisville Park Theatrical Asso­
ciation, which is a non-stock, non-profit, private corporation, 
organized under the laws of Kentucky and which at its own 
expense entirely and under its sole direction and super­
vision, during a part of the summer season, presents certain 
theatrical productions, for admission to which a fee is 
charged.

The conduct of the summer operas is pursuant to a writ­
ten contract entered into between the corporation and the 
City of Louisville under date of May 14, 1947. In the years 
1947, through 1951, the Louisville Park Theatrical Asso­
ciation has had the exclusive use of the Amphitheatre 
during the following periods—-

In 1947, July first through August tenth 
In 1948, July fifth through August fourteenth 
In 1949, July eleventh through August twenty-first 
In 1950, July tenth through August sixth, and 
In 1951, July sixth through August nineteenth

23

Memorandum



24

The Louisville Park Theatrical Association on July 23, 
1949, did decline to sell plaintiff James W. Muir, a ticket 
for admission to the performance then in production at the- 
Amphitheatre solely and only because of the fact that he 
was a Negro.

4. The contract of May 14, 1947, between the City of 
Louisville and the Association, in substance provides for 
the cancellation of a former agreement dated March 1,1943, 
and leases the Amphitheatre for a period of five years to 
the Association, beginning with the season of 1947, and 
grants to the Association an exclusive right and privilege 
to use the Amphitheatre and its appurtenances in an area 
shown on a map of Iroquois Park, attached to the contract,

' on dates between May 1 and September 30, for the years 
1947 through 1951, on such particular dates as the Associa­
tion by written notice to the City shall designate, for the 
purpose of staging its program of dramatic, operatic, and 
athletic entertainments.

The Association was given the right to sell food and 
soft drinks, cigarettes and tobacco on the premises during 
the period of entertainment and was granted the right to 
charge any person seeking to attend the entertainment, an 
admission fee, provided the fees and charges were reason­
able and consistent with the policy of providing wholesome 
entertainment at low cost.

The City agreed to maintain the structure and equip­
ment known as the Amphitheatre in a clean condition; The 
Association, however, at its own cost, to furnish the labor 
and material to clean up the Amphitheatre after each per­
formance and to pay the cost of electricity from May 1 to 
September 30 in each. year, the contract remained in force. 
It was required that on or before the first day of January 
1948, and on the first day of each year thereafter, during 
the life of the agreement, the Association would furnish the 
City with a complete written statement of all entertain­
ments produced by it or under its auspices at the Amphi­
theatre during the preceding season, the scale of admission 
fees charged the public for attending said entertainment, 
the number of persons attending same, and other informa­
tion, in order to enable the City to determine whether the

Memorandum



maintenance and operation of the Amphitheatre was con­
tributing materially to the use and enjoyment of the Park 
System in Louisville.

The Association was required to furnish an audited 
statement of monies received from all sources and expendi­
tures for all purposes made and incurred during the time 
covered in the preceding statement.

It was agreed that the Association would pay the City 
any profit realized from the operation, less $5,000, which 
the Association originally contributed to the cost of con­
struction of the Amphitheatre, which amount the Asso­
ciation reserved the right to repay to the individuals who 
had contributed that fund.

With respect to the use of the Amphitheatre by persons 
or organizations other than the Association, the contract 
provided that the City would not lease the Amphitheatre 
to other persons or organizations between May 1 and Sep­
tember 30, any year for the purpose of permitting to be 
produced therein, any entertainment for which an admission 
fee or charge was made or from which it expected to derive 
a pecuniary profit, unless the person or organization seeking 
to so use said Amphitheatre, first apply for a sub-lease from 
the Association.

The City reserved the right to make and enforce rules 
and regulations providing for good order and for the 
preservation and protection of the Amphitheatre and the 
prevention of indecent or immoral exhibitions or entertain­
ment calculated to create or incite racial or religious an­
tagonism, and reserved the right, should it determine the 
operation of the Amphitheatre under the agreement not 
to be to the best interest of the public, to terminate the 
lease.

5. With respect to the former action between plaintiff 
P. 0. Sweeney and the City and its Director of Parks and 
Recreation, it was stipulated that the former action was 
filed in the Jefferson Circuit Court, wherein the plaintiff 
sued for'himself and all colored citizens of the City of 
Louisville similarly situated, and that the transcript of 
the State Court proceedings filed in this action truly and 
correctly reflect the proceedings had in the Jefferson Cir­

25

Memorandum



26

cuit Court and the judgment rendered in that action, and 
that the judgment of the Jefferson Circuit Court dismissing 
the petition was affirmed by the Court of Appeals February 
22, 1949, the opinion of the Court being reported in 309 
Ky. 465, 218 S. W. 2d 30.

It was further stipulated that steps were taken by the 
plaintiff in the Court of Appeals of Kentucky, to obtain a 
review of that judgment of the Supreme Court of the 
United States by a writ of certiorari, but that plaintiff 
voluntarily abandoned the effort and the opinion and judg­
ment of the Court of Appeals of Kentucky became final.

At the trial, defendant T. Byrne Morgan testified with­
out contradiction that neither the plaintiffs in this action 
nor any of the class represented by them had since his 
incumbency as Director of Parks and Recreation made any 
request of this defendant or the Park Commissioners for 
the construction and operation of a golf course or fishing 
lake in any of the parks owned and maintained by the City 
of Louisville, for the exclusive use of Negroes; that during 
said period, no Negro or organization of Negro citizens 
of Louisville similar to the defendant Louisville Park 
Theatrical Association had requested use of the Amphi­
theatre in Iroquois Park, for the purpose of being per­
mitted to exhibit therein entertainment of the kind and 
character exhibited therein by the Louisville Park Theatri­
cal Association.

It was testified by Colonel Carl Heustis, an experienced 
Police Officer and Chief of Police of the City of Louisville, 
that in his opinion permitting white and negro citizens 
to play golf, attend the theatre, and use the fishing lake 
and amusement facilities together would present a serious 
police problem and create a menace to the safety and Avel- 
fare of people generally attending said parks or using the 
facilities therein.

As presently staffed and equipped, it was the opinion 
of Colonel Heustis that the Police Department of Louis­
ville was not adequate to cope with this situation.

Memorandum



CONCLUSIONS OF LAW.
I. This Court has jurisdiction of the parties and the 

subject matter involved in this action. U. S. Code, Title 28, 
Sections 1331 and 1343, sub-section (3) and Title 8, Sec­
tions 41 and 43.

Plaintiffs have a right to obtain a declaratory judgment 
with respect to their rights to the recreational and enter­
tainment facilities located within the public parks owned 
and maintained by the City of Louisville and arising out 
of the Fourteenth Amendment to the Federal Constitution. 
U. S. Code, Title 28, Section 2201.

II. Counsel for the defendants have earnestly and ably 
insisted that this Court is required to give full faith and 
credit to the judgment of the Jefferson Circuit Court, 
Chancery Branch, dismissing the petition of the plaintiffs 
in its judgment entered January 5, 1948 and affirmed by the 
Court of Appeals of Kentucky on appeal to that Court by 
the plaintiff P. 0. Sweeney (one of the plaintiffs in this 
action) 309 Ky. 465. They contend that under the au­
thority of Hansberry v. Lee, 311 U. S. 32, not only the 
plaintiff Sweeney, but all members of the class—that is 
Negro citizens and taxpayers of Louisville—are precluded 
by the judgment in the State Court proceedings and that 
the defendants’ plea of res judicata is dispositive of this 
action.

In the opinion of the Chancellor of the Jefferson Circuit 
Court, which was adopted as the opinion of the Court of 
Appeals (309 Ky. 468), it is said—

“ The motion to strike was overruled for the sound 
reason that in the nature of the case it is clear that 
this is a represented suit such as is authorized by 
Section 25 of the Civil Code of Practice.”

The principal ground relied upon by the plaintiffs in 
the State Court proceeding was that the practice and custom 
of denying Negroes the use of the golf courses and attend­
ance at entertainments at the Amphitheatre in Iroquois 
Park, was violative of the Fourteenth Amendment to the 
Federal Constitution and constituted a discriminatory seg­

27

Memorandum,



regation, depriving the plaintiffs and other Negro tax­
payers and citizens of Louisville of their liberty and 
property without due process of law and the equal protec­
tion of the law.

In the case of Hansberry v. Lee, supra, the Supreme 
Court pointed out the recognized exception to the

“ * * * principle of general application in Anglo-
American jurisprudence that one is not bound by a 
judgment in personam in a litigation in which he is 
not designated as a party or to which he has not been 
made a party by service of process. ’ ’,

the exception being that
“ * * # the judgment in a ‘ Class’ or ‘ representative’ 
suit, to which some members of the class are parties, 
may bind members of the class or those represented 
who were not made parties to it. ’ ’

The principal reliance of their contention of res judicata 
is Angel v. Buffington, 330 U. S. 183. In that action, 
Buffington was unsuccessful in the North Carolina Supreme 
Court on an appeal from the Superior Court of that State 
in an action in which he sought a deficiency judgment after 
having foreclosed a mortgage against Angel, a citizen of 
North Carolina, on land located in Virginia.

The North Carolina Supreme Court upheld a North 
Carolina statute, precluding mortgagees, trustees or hold­
ers of notes secured by mortgage or deed of trust from 
securing a deficiency judgment on account of such obliga­
tion.

Following the dismissal of Buffington’s action in North 
Carolina, by its Supreme Court, Buffington instituted suit 
in the District Court of North Carolina and obtained a 
judgment (56 Fed. Supp. 372), which was upheld by the 
Court of Appeals for the Fourth Circuit (150 F. 2d 679). 
Having granted certiorari, the Supreme Court reversed the 
North Carolina Supreme Court, holding that Buffington 
after an adverse decision on a cause of action created by 
state law, could not start the litigation over again in a 
Federal Court and that there was raised and adjudicated

28

Memorandum



in the State Court litigation the federal issues involved in 
the second suit. The Court said (189)—

“ Since it was open for Bullington to come here to 
seek reversal of the decision of the North Carolina Su­
preme Court shutting him out of the North Carolina 
courts and he chose not to do so, the decision of the 
North Carolina Supreme Court concluded an adjudica­
tion of a federal question even though it was not 
couched in those terms. For purposes of litigating the 
issues in controversy in the North Carolina action, 
the North Carolina Supreme Court was an intermediate 
tribunal. If a litigant chooses not to continue to assert 
his rights after an intermediate tribunal has decided 
against him, he has concluded his litigation as effec­
tively as though he had proceeded through the highest 
tribunal available to him.”

Defendants7 argument is persuasive, but in the case of 
Trailmobile v. Whirls, 154 F. 2d 866 (C. A. 6), the Court- 
said—•

‘ ‘ The interpretation by a state court of the rights 
of a citizen under a federal statute is not binding upon 
the federal courts.”

The Tailmobile case was reversed by the U. S. Supreme 
Court (331 U. S. 40), but in the Court’s opinion, it is said—

“ At the outset it is important, in view of certain 
questions which have been injected beyond the issues 
presented for decision, to state explicitly what is not 
before us. In the first place, we are not required to 
determine whether the class suit in the state courts 
constituted an adjudication of the rights of the parties 
involved in this litigation. That question was pre­
sented to the District Court and the Circuit Court of 
Appeals. Both determined it adversely to petitioners, 
but no error was assigned to this ruling in the petition 
for certiorari. The question therefore is not before 
this Court and we express no opinion concerning it.” 
(Emphasis added.)

29

Memorandum



In view of tlie positive statement of the Court of Ap­
peals of this Circuit in the Trailmobile case, which was 
unchallenged on the appeal, this Court denies the plea of 
res judicata.

III. The defense on the merits by the Louisville Park 
Theatrical Association is the same defense interposed by 
and upheld by the Court in the state court proceedings, 
that is that the denial of admission to the Amphitheatre 
was not made by the City of Louisville or its Director of 
Parks, but by the Association in a “ proper exercise”  of its 
rights and as held by the Court of Appeals of Kentucky:

“ Insofar as the use of the amphitheater is con­
cerned the petition is defective in that it does not 
allege that the plaintiff and those whom he represents 
among the colored race have ever made application 
to form an association and erect an amphitheater in 
one of their own parks as a facility which has been 
granted to those of the white race as represented by 
the Park Theatrical Association. ”

One disparagement in the facts stated in the state court 
proceedings to the facts as stipulated in this action is that 
in the state court proceeding, it is stated that the petition 
alleged and the Court takes judicial notice of the fact 
that the Amphitheatre was erected by an association of 
the citizens of the white race and paid for by them, while 
it is stipulated in this action that the Amphitheatre was 
erected at the cost of the City of Louisville except for 
a $5,000 contribution made by the Park Theatrical Asso­
ciation. However, it seems to this Court that there has 
been no discrimination because nowhere is it alleged, proven 
in evidence or stipulated that the plaintiff Muir, or any 
organization to which he belongs have ever sought to secure 
possession of the Amphitheatre for the purpose of pro­
viding therein entertainment procured and paid for by 
them without cost or expense to the City of Louisville.

In the ease of Lawrence v. Hancock, 76 Fed. Supp. 1004 
(D. C. W. Ya.), the question determined was thus stated—

“ Can a municipality by leasing a swimming pool 
constructed with public funds to a private association

30

Memorandum



of persons, relieve itself of the constitutional obliga­
tion to afford colored citizens equal rights with those 
of white citizens in the use of the public recreational 
facilities thereby provided"?”

The Court there held that a city in allowing various 
groups to lease the Auditorium for private operation for a 
short period of tim£Br'to~some particular group or associa­
tion, allowing at the same time any Negro organization to 
leasejheqiool under the same terms on a non-discriminatory 
basis, did noT vioiate the Fourteenth Amendment.

The Court refers to the case of Harris v. City of St. 
Louis, 233 Mo. App. 911, 111 S. W. 2d 995.

In the case at bar, the Louisville Park Theatrical Asso­
ciation incurs all financial responsibility incident to con­
tracting with the producing companies which stage the 
exhibitions. The City incurs no financial responsibility in 
that respect and has no voice in the sale of tickets and has 
supervision of the. admission charges only to the extent of 
keeping them on the basis of reasonableness in order to 
promote widespread attendance. The days which the 
Theatrical Association actually occupies the Amphitheatre 
are comparatively few; for instance, approximately thirty 
days and not a sufficient length of time to interfere with a 
similar use and occupancy of the Amphitheatre for like 
purposes by another or other organization.

The contract of leasing between the City and the 
Theatrical Association does not by its terms prohibit other 
organizations from using it nor was there any proof that 
other organizations have not used it. It therefore appears 
that the conclusion of the state court, that the denial of 
the right of admission to the plaintiff Muir was a proper 
exercise of the rights of the Association, is legally sound. 
It is therefore concluded that the complaint as to the 
Louisville Park Theatrical Association is without merit 
as to the City of Louisville, insofar as it relates to the 
Amphitheatre in Iroquois Park.

IV. With respect to the golf courses, a different situa­
tion exists.

The City of Louisville owns, maintains and operates the 
golf courses which are all located within the parks set aside

31

Memorandum



by the City for the exclusive use of white persons. None 
of the parks set aside for use by the Negroes is equijxped 
with a golf course.

In the case of A. W. Beal, et al. v. Oscar Holman, 
Mayor of Houston, Texas, et ah, recently decided by Judge 
T. M. Kennerly, in the District Court for the Southern Dis­
trict of Texas, Houston division (that opinion unreported), 
the facts are much like those in the present case. The City 
of Houston maintains a system of public parks. Of a total 
of 21 parks in the system, 17 wTere maintained for the ex­
clusive use of white people, in 3 of which there were golf 
courses. The remaining 4 parks in the system, in none of 
which was there a golf course, were maintained for the 
exclusive use of Negroes. It is held, on the authority of 
Plessy v. Ferguson, 163 IJ. S. 537, considered in the light 
of the subsequent eases of Sweatt v. Painter, 339 U. S. 629; 
Henderson v. U. S., 339 U. S. 816; McLaurin v. Oklahoma 
State Eegents, 339 U. S. 637, and Rice v. Arnold, 340 H. S. 
848, that—

“ * * * the action of the City of Houston in
setting aside certain of its parks for the use of white 
people and certain others for the use of Negroes may 
be regarded as lawful, if the facilities furnished or 
provided for each race are substantially equal.”

The Court concludes that the failure to provide golf 
courses in parks used by the Negroes is not either as a 
matter of law or fact, a discrimination against the Negroes.

In Rice v. Arnold, ------So. 2d -------  (decided August 21,
1951), the Florida Supreme Court, in compliance with the 
mandate of the United States Supreme Court, 340 U. S. 
848, reconsidered its former holdings and opinion (45 So. 
2d 195) “ in the light o f”  Sweatt v. Painter, supra, and 
McLaurin v. Oklahoma State Regents, supra, and held for 
the second time that an allocation of certain days for the 
use of a municipally owned golf course in Miami, Florida, 
exclusively by colored persons and the allocation of certain 
days for the use of the course exclusively by white persons 
was not a denial of the constitutional rights to either the 
negro or white persons and that providing separate but 
equal facilities for persons of different races as enunciated

32
Memorandum



in Plessy v. Ferguson, 163 U. S. 537, had been since the 
adoption of the Fourteenth Amendment to the Constitu­
tion, not violative of it.

In Boyer v. Garrett (D. C. Md.), 88 Fed. Supp. 353, 
Judge Chestnut declined to strike down the doctrine that 
segregation of races with respect to facilities afforded by 
the State for its citizens is within the constitutional exer­
cise of the police power of the states respectively, provided, 
that the separate facilities afforded different races are 
substantially equal. On appeal, the District Court’s deci­
sion was affirmed—Boyer v. Garrett, et ah, 183 F. 2d 582 
(C. A. 4), cert, denied 340 I T .  S. 912.

The Board of Park Commissioners was created by 
Article VIII of Chapter 89 of Carroll’s Kentucky Statutes. 
By Section 2848, the powers and duties of that Board were 
defined, among which was the power “ to adopt rules and 
regulations for the reasonable and proper use, and for 
preventing injuries to or misuse of all parks, * * * and 
park property generally; and to prevent disorder and im­
proper conduct within the precincts of any park or inclosure 
* * * under control of said board of park commissioners. 
The police powers of the City shall extend over the said 
park property of every kind as the same is or shall be 
acquired. ’ ’

The Board under authority of this statute issued rules 
which assigned to Negroes in Louisville certain parks for 
their exclusive use and to white people certain other parks. 
William Warley challenged these rulings as invalid be­
cause in violation of the Fourteenth Amendment. The 
Court of Appeals in 233 Ky. 688, denied this contention on 
authority, among other cases, of Plessy v. Ferguson, 163 
U. S. 540.

K.R.S. Section 97.250(2) confers upon the Director of 
Parks and Recreation power to make rules for the reason­
able and proper use, management and control of park prop­
erty.

It is concluded that the defendant Morgan, as Director 
of Parks and Recreation had the right to make and enforce 
the existing rules which, in effect, segregate the Negroes 
and white people in their enjoyment of the parks and recrea­
tional facilities, provided the facilities furnished are sub­
stantially equivalent for the two races.

33

Memorandum



As said by Judge Chestnut in Law v. Mayor and City 
Council of Baltimore (D. C. Md), 78 Fed. Supp. 346 (346 
(350)—

“The City is under no legal obligation to provide 
golfing facilities as a particular feature of its whole 
park services and presumably may constitutionally and 
lawfully discontinue golfing facilities as a recreation 
pleasure at any time. Nor is it meant to rule that it is 
not within the power of the Board in its judgment, 
pursuant to the general policy of segregation, to estab­
lish separate golf courses for white and colored citizens. 
But so long as the City furnishes golfing facilities the 
quality must be substantially equivalent for the two 
races.”

In the Law case, supra, it was contended by the City that 
furnishing to the Negroes exclusively a nine hole course and 
furnishing to the white golfers three eighteen hole courses 
was equal facilities, the number of Negro golfers number­
ing less than 100 compared to 5,000 or more white golfers. 
The Court rejected this contention and held that the plain­
tiff had a personal constitutional right to substantially 
equal facilities with white golfers and was entitled to enjoy 
the opportunity of the game afforded by the better golf 
course.

In the case at bar, there is no question of equal facilities 
for playing golf. The parks set aside for Negroes are not 
equipped with golf courses. Negroes are entitled to partici­
pate in the enjoyment of golf courses built and maintained 
with public funds.

It was suggested by defendant Morgan that if demand 
by the Negroes was made, he would recommend that the 
City construct and operate a golf course in one of the parks 
provided for use exclusively for Negroes. Whatever effect 
this offer may have upon the controversy in the future, it 
can have no weight presently. This case must be deter­
mined upon the existing facts and plaintiffs’ present rights. 
Missouri, Ex Bel. Gaines v. Canada, 305 IT. S. 337 (345).

What is here said in respect of the golf courses is equally 
applicable to the fishing lake. The plaintiff, Mona Carroll,

34

Memorandum



is entitled to enjoy this facility, it not being claimed by the 
City that an equivalent facility is available in any of the 
parks set aside for Negroes.

It becomes the duty of the Director of Parks and Recrea­
tion to provide facilities for plaintiffs P. 0. Sweeney and 
Mona Carroll and the class represented by them respec­
tively, for playing golf and fishing upon a basis and with 
facilities substantially equivalent to those furnished in that 
respect to white persons. How this shall be done presents 
a problem for the Director of Parks and Recreation, to de­
termine what shall be done to afford substantially equal 
facilities to Negro golfers, necessarily having consideration 
for the number of Negro golfers. Law v. Mayer, et al (at 
page 351).

The Director and the City, in providing equal facilities, 
are authorized by the police power inherent in them to make 
such rules and regulations as will secure public peace and 
safety. Berea College v. Commonwealth, 123 Ky. 123.

A  judgment adjudicating the rights of the parties as 
here found will be tendered by Counsel for plaintiffs, upon 
notice to opposing Counsel.

Roy M. Shelbourne,
Benjamin P. Shobe, U. S. District Judge.

304 So. Seventh Street,
Louisville, Kentucky,

James A. Crumlin,
524 W. Walnut Street,
Louisville, Kentucky,

Robert C. Carter,
New York, N. Y.,

Attorneys for Plaintiffs.
Gilbert Burnett, City Attorney,
Robert W. Meagher, Asst. City Attorney,

Louisville, Kentucky,
Attorneys for Defendants, City of Louisville 

and T. Bryne Morgan, 200 City Hall, Louis­
ville, Kentucky.

Donald Q. Taylor,
1212 Kentucky Home Life Building,
Louisville, Kentucky,

Attorney for Defendant, Louisville Park 
Theatrical Association, Inc.

35

Memorandum



36

This action coming on for the entry of a judgment in 
conformity with the findings of fact and conclusions of law 
heretofore filed herein, and the Court being sufficiently ad­
vised, it is ordered and adjudged that the rights of the par­
ties in the premises be, and they are hereby declared to be 
as follows:

1. That the regulation of the Department of Parks and 
Recreation of the City of Louisville which requires the 
separation of the white and negro races in the use and en­
joyment of park and recreational facilities provided by the 
City of Louisville to its citizens is a valid exercise of the 
police power with which the City is invested. The regula­
tion is not unconstitutional as being repugnant to the Fed­
eral Constitution, and said regulation is not void as a viola­
tion of the provisions of 8 U.S.C.A., Section 41.

2. That the custom and practice of defendants, City of 
Louisville and T. Byrne Morgan, Director of Parks and 
Recreation of the City of Louisville, under color of the 
regulation aforementioned, of providing golf facilities to 
the white citizens of Louisville without providing substan­
tially equal facilities to the plaintiff, Sweeney, and other 
negro citizens similarly situated, renders the park and 
recreational facilities furnished negro citizens substantially 
unequal to those furnished white citizens and such inequal­
ity constitutes a denial to plaintiff Sweeney and other negro 
citizens similarly situated, of the equal protection of the 
laws guaranteed them by the Federal Constitution.

3. That the Louisville Park Theatrical Association, in 
denying admission to Iroquois Amphitheatre to plaintiff, 
James W. Muir, was not acting for the City of Louisville or 
its Director of parks and Recreation, but solely on behalf 
of the Loiusville Park Theatrical Association in the proper 
exercise of its rights as a private corporation; that this 
action on the part; of The Louisville Park Theatrical Asso­
ciation is not subject to the provisions of the equal protec­
tion clause of the Fourteenth Amendment to the United 
States Constitution for the reason that it is not the action 
of the City of Louisville or of any “ arm” of the State.;

JU DG M EN T—Entered January 18,1952.



37

Judgment
The plaintiff, James W. Muir, does not show that any 

Negro organization or Negro citizens of Louisville similarly 
situated to the defendant, Louisville Park Theatrical Asso­
ciation, has requested use of the Amphitheatre in Iroquois 
Park, for the purpose of being permitted to exhibit therein, 
entertainment of the kind now exhibited therein by the 
Louisville Park Theatrical Association, nor that the City 
of Louisville had refused such permission. This Court de­
clares that the City of Louisville in allowing the Louisville 
Park Theatrical Association to lease or use the Iroquois 
Amphitheatre for private operation for a short period of 
time, does not violate the Fourteenth Amendment where 
there is no showing that other groups, including any Negro 
organization, may not be allowed to lease the Amphitheatre 
under similar terms on a non-diseriminatory basis.

4. That the plaintiff, Mona Carroll, having failed to 
produce any evidence in support of her claim to the effect 
that fishing facilities offered the Negro citizens of Louis­
ville are substantially unequal to those afforded white citi­
zens, has not shown the existence of any deprivation of the 
equal protection of the laws guaranteed by the Federal Con­
stitution, and is therefore not entitled to admission to the 
fishing lake provided for white citizens in Cherokee Park 
in the City of Louisville.

It is further ordered and adjudged that the complaints 
of the plaintiffs, James W. Muir and Mona.Carroll, be, and 
they hereby are dismissed. It is further ordered and ad­
judged that the defendants, City of Louisville and T. Byrne 
Morgan, Director of Parks and Recreation of the City of 
Louisville, be, and they are hereby perpetually enjoined 
from denying Sweeney and other Negro citizens similarly 
situated, opportunities and facilities for playing golf which 
are substantially equal to those presently furnished by the 
City of Louisville to its white citizens. That the City of 
Louisville and T. Byrne Morgan, Director of Parks and 
Recreation of the City of Louisville are hereby perpetually 
enjoined from refusing to permit plaintiffs, Negro citizens 
of the City of Louisville, to use the public golf courses solely 
because of their race and color and from otherwise dis­
criminating against said Negro citizens in the use of said



38

Judgment
facilities, without prejudice, however, to the right of the 
City of Louisville and T. Byrne Morgan, Director of Parks 
and Recreation of the City of Louisville, and his successor 
in office, to provide separate facilities for Negro citizens for 
playing golf, which separate facilities will make available 
for Negroes equal or substantially equal facilities and oppor­
tunities for playing golf.

Roy M. Shelbourne, 
United States District Judge.

NOTICE OF APPEAL—Filed February 18, 1952.

Notice is hereby given that James W. Muir, plaintiff 
above-named, hereby appeals to the United States Court of 
Appeals for the Sixth Circuit from the final judgment dis­
missing that portion of the complaint filed on his behalf 
herein, against the Louisville Park Theatrical Association 
entered in this action on January 18, 1952.

Benjamin F. Shobe,
Counsel for Plaintiff,

829 West Broadway, 
Louisville, Kentucky.

Robert L. Carter,
Counsel for Plaintiff,

20 West 40th St.,
New York 18, New York.

A copy of this notice has been mailed to Counsel for the 
City of Louisville, T. Byrne Morgan, and Louisville Park 
Theatrical Association.

2/18/52 Benjamin F. Shobe.



39

Know All Men By These Presents:
That we, James W. Muir, Jr., appellant, and Porter 

Young*, Surety, are held and firmly bound unto Louisville 
Park Theatrical Association, in the sum of Two Hundred 
and Fifty ($250.00) Dollars to be paid to the said Louis­
ville Park Theatrical Association, a corporation, executors 
or administrators. To which payment, well and truly to be 
made, we bind ourselves and each of us, jointly and sev­
erally, and our and each of our heirs, executors, and admin­
istrators, firmly by these presents.

Sealed with our seals, and dated this 19th day of Feb­
ruary, A. D., 1952.

Whereas, The above-named James W. Muir, hath prose­
cuted an appeal to the United States Court of Appeals for 
the Sixth Circuit to reverse the Judgment rendered in the 
above-entitled suit, by the District Court of the United 
States for the Western District of Kentucky, at Louisville.

Now, Therefore, the Condition of This Obligation Is 
Such, that if the above-named James W. Muir, Jr., shall 
prosecute the said Appeal to effect, and answer all damages 
and costs, if he shall fail to make good his plea, then this 
obligation shall be void; otherwise the same shall be and 
remain in full force and virtue.

James W. Muir, Jr. (L.S.)
Porter Young (L.S.)

Sealed and delivered in presence of 
W. T. Beckham, Clerk,

United States District Court.

APPEAL BOND—Filed February 18,1952.



40

DESIGNATION OF THE CONTENTS OF RECORD 
ON APPEAL—Filed February 20, 1952.

Plaintiff, James W. Muir, hereby designates the com­
plete record of the above-captioned case to be contained in 
the record on appeal.

Benjamin F. Shobe,
Counsel for Plaintiff,

829 W. Broadway, 
Louisville, Kentucky.

Eober L. Carter,
Counsel for Plaintiff,

20 West 40th St.,
New York 18, New York.

A copy of this pleading has been mailed to Counsel for 
defendants, City of Louisville, T. Byrne Morgan, and the 
Louisville Park Theatrical Association.

2/18/52 Benjamin F. Shobe.

ORDER EXTENDING TIME—Entered February 25, 1952.

The time in which the record on appeal in the above case 
may be docketed and filed in the United States Court of 
Appeals, Sixth Circuit, is extended to and including May 
15th, 1952.

Roy M. Shelbourne,
Judge, United States District Court.



O RD ER—Filed May 20,1952.

The motion of appellant to extend the time for filing 
the record to and including July 15, 1952, is granted, and 
the time is extended accordingly.

Approved for entry:

A  true Copy 
Attest:

Carl W. Reuss, Clerk 
By Mary M. McAfee, 

Deputy Clerk.
(Seal)

(s) Charles C. Simons,
Chief Judge.

TRANSCRIPT OF EVIDENCE—Filed May 2, 1952.

August 6,1951.

Heard before:
Honorable Roy M. Shelbourne, United States District 

Judge for the Western District of Kentucky, without a jury.

APPEARANCES.
Robert L. Carter, New York, and Benjamin F. Shobe, for 

the plaintiffs.
Judge Gilbert Burnett, Robert W. Meagher, and Donald Q. 

Taylor, for the defendants.

PROCEEDINGS.
By the Court: All right, gentlemen, are you ready to 

proceed?
Mr. Shobe: Plaintiff is ready.
Mr. Meagher: Defendant, City of Louisville, is ready.



42

Mr. Taylor: Defendant, Louisville Park Theatrical
Association, is ready.

By the Court: All right, you may proceed for the plain­
tiff.

Mr. Shobe: May it please your Honor, Mr. Taylor, gen­
tlemen representing City of Louisville, this matter, if your 
Honor please, so far as all material allegations are con­
cerned with respect to the plaintiff’s claim have been stipu­
lated between the parties involved. We have two stipula­
tions here this morning. They have been signed. For pur­
poses of clarity, I would like to read them.

By the Court: All right, you may.
Mr. Shobe (reading): Stipulation Numb er 1.
“Come now the plaintiffs, by counsel, Benjamin F. Shobe, 

Bobert L. Carter, and James A. Crumlin, and defendants, 
T. Byrne Morgan and the City of Louisville, by counsel, 
and submit the following propositions to be stipulated as 
fact in the above-captioned case:

“ There is no genuine issue between the parties upon the 
following questions:

I.
“As to the fact that plaintiffs in this action are citizens 

of the United States and the State of Kentucky, and are 
residents of and domiciled in the City of Louisville, except 
that plaintiff, Dr. P. O. Sweeney, has moved from the City 
of Louisville since the filing of this action, and now resides 
in Jefferson County, Kentucky.

H.
“That defendant, City of Louisville, is a municipal cor­

poration, exercising the power and authority granted it by 
the Constitution and laws of the State of Kentucky. That 
the defendant, T. Byrne Morgan, is the designated agent of 
the City of Louisville, who directs the affairs and activities 
of the Department of Parks and Recreation for defendant, 
City of Louisville; that said defendant, T. Byrne Morgan, 
acts for the City of Louisville in enforcing the policy of 
limiting plaintiffs and other Negro citizens to the use of 
certain parks, playgrounds, athletic fields, and swimming

Proceedings



43

pools maintained by the defendant, City of Louisville, in ac­
cordance with regulations of said Department.

III.
“As to the fact that the publicly maintained parks, play­

grounds, etc., set aside by the defendants, City of Louisville 
and T. Byrne Morgan, for the exclusive use of white citi­
zens, contain the following facilities, none of which may be 
found in the parks, playgrounds, etc., set aside for the ex­
clusive use of Negro citizens:

Proceedings

1. Golf courses 6.
2. Running streams 7.
3. Bridle paths 8.
4. Hiking trials 9.
5. Areas for coasting

IV.

Hockey equipment 
Lighted croquet courts 
High Peak Lookout 
Amphitheater

“As to the fact that plaintiffs were denied admission to 
the Parks set aside for the exclusive use of white citizens 
solely on the ground and for the reason that they are colored 
persons of African descent, and of Negro blood; and pur­
suant to regulations of the Department of Parks and Recre­
ation, which are now and have been in full force and effect 
as regulations of said Department, and which existed as 
regulations of the Board of Park Commissioners of the City 
of Louisville since May 29, 1928.

V.
“As to the fact that the rights involved in this action are 

of common and general interest to all Negro citizens of 
the City of Louisville, and the members of this class are so 
numerous as to make it impracticable to bring them all be­
fore the Court.

(s) Benjamin P. Shobe,
Counsel for Plaintiffs.

(s) Gilbert Burnett,
(s) Robert W. Meagher,

Counsel for City of Louisville 
and T. Byrne Morgan.”



Before filing this, I would like to refer to the others. 
We have an additional stipulation, sir, agreed upon between 
the City of Louisville and defendant, T. Byrne Morgan, and 
the plaintiffs.

(Beading)
“Come now the plaintiffs, by counsel, Benjamin F. Shobe, 

Robert L. Carter, and James A. Crumlin, and defendants, 
T. Byrne Morgan and the City of Louisville, and the Louis­
ville Park Theatrical Association, by counsel, . . .”

Incidentally, this stipulation is not signed by the Louis­
ville Park Theatrical Association.

Proceedings

£ "} f. 5 %’

4, f 

I V: ■ >' r

TA * "
4 . 1

(Continuing)
“ . . . by counsel, and submit the following proposi­

tions in addition to those already agreed upon, to be stipu­
lated as fact in the above-captioned case: j a ■./ V

“There is no genuine issue between the parties upon the 
following questions: ; ; '

L . . V'>.
“The following parks are maintained by the Department 

of Parks and Recreation for the City of Louisville:
NAME OF PARK

Seneca Park (W hite).................................
Shawnee Park (W hite)..............................
Chickasaw Park (Negro)..........................
Cherokee Park (W ffi# T ............................

Jtroquois Park (W hite).............................
Algonquin Park (W hite)..........................
Ballard Playground (Negro) .....................
Beecher Park (Negro)..................  *........
Baxter Playground “(Negro)......................
Boone Square PlaygrouTiTT"(White).........
Central Park (W hite)................................
Crescent Hill (W hite)................................
Herbert Madison Playground (Negro)
East Louisville (W hite).......................... .
Highland Park (W hite)............................
Parkhill Playground (W hite)...................
Preston Street Playground (W hite).........

ACREAGE

552
]

181.5
76.2

409 .3 i . 0
676 .4

X  4  X16.443 5  • no
1.0 ^ 1
3.48 i '  ' 1

2.1 * v ,
4 .5

17.2 " Y  —

13
5

2 .34
4 .67

22 /  "■
4 .6 %

7.2 1 * ^  1 1  j



45

Proceedings
NAME OF PARK ACREAGE

Shelby Park (W hite)..................................... 17.4
Lincoln Playground (Negro)........................  7.0
Shephard Park (NegroTT............................. 3.0
Shephard Square Playground (Nggro).. . 2.2..>
South Central Park (W hite)....................... 10.85
Thurston Park (W hite)....... ..................... 25.0
Triangle Park (W hite)..............................  7.3

-Tyler Park (W hite)......................................  12.6
Virginia Avenue Playground (Negro). . . .  fTF?
Victory Park (White)............. TlV?.........  4.1
Westonia Park (W hite)...............................  3.0
Wyandotte Park (W hite)............................  31.0
Clifton Playground (W hite)........................ 7.0
Airport Park (Negro) ..................................  /8J)\

II.
“That the Cherokee Park where plaintiff, P. O. Sweeney, 

sought to use the golf course maintained there on July 21, 
1949, and where plaintiff, Mona Carroll, sought to use the 
fishing lake maintained there, are parks maintained exclu­
sively by the Department of Parks and Recreation for white 
persons.

(s) Benjamin F. Shobe,
Counsel for Plaintiffs.

(s) James A. Crumlin,
(s) Robert L. Carter,

Counsel for Plaintiffs.
(s) Gilbert Burnett,

Counsel for Defendants.”

The other stipulation deals with the Louisville Park 
Theatrical Association. '

(Reading)
“Come the plaintiff, James W. Muir, and the defendant, 

Louisville Park Theatrical Association, Incorporated, by 
Counsel, and stipulate as follows:



46

I.
“That in 1938 the Board of Park Commissioners of the 

City of Louisville, Kentucky, set aside a certain portion of 
Iroquois Park as the site for an amphitheatre and caused 
to be erected thereon a structure now known as the Iroquois 
Amphitheatre.

“That the defendant, Louisville Park Theatrical Asso­
ciation, Incorporated, contributed the sum of $5,000 (or 
more) to the Board of Park Commissioners of the City of 
Louisville; said sum to be used towards the cost of con­
structing the Iroquois Amphitheatre. The remaining cost 
of constructing said Amphitheatre came out of public funds.

“That in 1942 the City of Louisville acquired title to 
said Iroquois Amphitheatre from the Board of Park Com­
missioners of the City of Louisville and now, and at all 
times mentioned herein, owns and maintains said structure 
known as the Iroquois Amphitheatre.

II.
“That the defendant, Louisville Park Theatrical Asso­

ciation, Incorporated, is a non-stock, non-profit, private cor­
poration, organized and existing under the laws of Ken­
tucky.

“That the defendant, Louisville Park Theatrical Associ­
ation, Incorporated, entirely at its own expense and under 
its sole direction and supervision, produces and presents 
certain theatrical productions in Louisville, Kentucky for 
which a fee for admission is charged.

“That the defendant, Louisville Park Theatrical Associ­
ation, Incorporated, under and by virtue of a written agree­
ment with the City of Louisville, dated May 14,1947, a copy 
of which is filed herewith and made a part hereof, presented, 
entirely at its own expense, certain theatrical productions 
at the Iroquois Amphitheatre during the following dates in- 
each of the following years:

July 1st through August 10th, 1947 
July 5th through August 14th, 1948 
July 11th through August 21st, 1949 
July 10th through August 6th, 1950 
July 6th through August 19th, 1951

Proceedings



47

“That the defendant, Louisville Park Theatrical Asso­
ciation, Inc., presented its theatrical productions at the 
National Theatre, Louisville, Kentucky, during the summer 
of 1944.

“That no theatrical productions were presented by the 
Louisville Park Theatrical Association, Inc., during the 
year 1945.

III.
“ That the defendant, Louisville Park Theatrical Asso­

ciation, Incorporated, or one of its agents, on July 22, 1949, 
declined to sell to the plaintiff, James W. Muir, a ticket of 
admission to a performance of ‘Blossom Time,’ a theatrical 
production then being presented by the defendant, Louis­
ville Park Theatrical Association, at Iroquois Amphithe­
atre, because of the fact that he was and is a colored person 
of Negro blood and African descent.

(s) Benjamin F. Shobe,
(s) James A. Crumlin,
(s) Robert L. Carter,

Counsel for Plaintiff, James W.
, Muir.

(s) Donald Q. Taylor,
Counsel for Defendant, Louisville 

Park Theatrical Association, 
Incorporated.”

We have also, your Honor, the agreements under which 
and by which the Louisville Park Theatrical Association 
has sued the Iroquois Amphitheater in Iroquois Park since 
April 19th, 1938, and with your Honor’s permission, we 
would like to file these agreements as well as the stipula­
tions which have been read.

Mr. Taylor: I object to any agreement other than the 
current lease under which we operate.

Mr. Meagher: Let the record show the objection of the 
City of Louisville for the same matter.

By the Court: Is the current agreement the one in­
volved in the year ’49 ?

Proceedings



48

Mr. Taylor: Yes, sir, and has been stipulated and is a 
part of the record.

Mr. Carter: Your Honor, I think one of the crucial
issues in this case is the question of the status of the Louis­
ville Park Theatrical Association. We have had some prob­
lem in regard to them. We think that the question of the 
entire agreement under which they have operated—the 
agreements are for the most part the same, not many sub­
stantial changes—would help to give the Court a picture of 
the status of the Louisville Park Theatrical Association, 
how it was conceived and how it was operated, and does no 
harm to the defendant by showing this, and it is essential 
for the purpose of our case for you to understand how the 
thing was conceived and how it operated and we ought to 
be permitted to submit all three agreements.

By the Court: How many agreements do you have there 
that you propose now to file ?

Mr. Carter: There are three agreements entered into so 
far, the first one in which the Louisville Park Theatrical 
Association came into being, presenting these things, was 
in 1938. That agreement we have, and went for a period 
of five years and was renewed in 1943 and renewed again 
in 1947, and we have the three agreements.

Mr. Taylor: Your Honor please, it was not renewed in 
1947. The 1943 agreement was cancelled and a new agree­
ment was substituted therefor. The rights under which we 
operated during 1949 are the only things in issue here by 
their pleadings and that should control. We stipulated to 
that.

By the Court: Well, it would control beyond any ques­
tion, Mr. Taylor, the right of this particular plaintiff to 
attend the performance. The question in my mind—as 
stated by Mr. Carter—would these prior agreements shed 
any light upon the amount that the City may have con­
tributed or invested in the enterprise. Public funds went 
into it—that becomes a material consideration.

Mr. Taylor: There is no allegation, if your Honor
please, that the City of Louisville has contributed any funds 
to the Louisville Park Theatrical Association.

By the Court: I understood in the reading of this stipu-

Proceedings



49

lation that in 1938, by virtue of an agreement in ’38, the 
Theatrical Corporation—-Association, so-called—invested 
some $5,000 in the form of a contribution to the City of 
Lousville which went to supplement a fund provided by the 
City with which it constructed the Amphitheater. That 
subsequently the Association was reimbursed or in 
some way took over the building, the City took over the 
building insofar as the Association had contributed to the 
expense of its construction. Did I get that right?

Mr. Taylor: We made no contention, Judge, and there 
is no contention in the pleading that Louisville Park Thea­
trical Association either owns or constructed the amphi­
theater. It stated we made a contribution of $5,000 toward 
the construction and all other expenses came out of public 
funds. That is what the stipulation says.

By the Court: Am I correct that the Association was 
reimbursed the initial contribution of $5,000 that it made 
to the City?

Mr. Taylor: No, it has never been reimbursed to us.
By the Court: I think these agreements ought to be in 

the record. I think we ought to have the full history of this.
Mr. Meagher: Judge, for what purpose? Are you going 

to limit the scope ?
By the Court: To the extent, Mr. Meagher—I don’t

know that it is necessary now to define the limitations to 
which the agreements will be considered, but my idea is 
that they may shed some light upon the investment made 
by the City of Louisville in that particular form of enter­
tainment, by means of public funds. That is the foundation 
of the plaintiffs’ rights here.

Mr. Meagher: There is no allegation about the City
making any contribution, public funds to this operation by 
the Louisville Park Theatrical Association.

By the Court: They have certainly alleged that the
City has provided an advantage of facility to the white 
people which it has refused or failed to provide the colored 
people.

Mr. Taylor: No, sir, there is no allegation of that in 
here.

By the Court: That is the foundation of this suit, as I 
understand it.

Proceedings



50

Mr. Taylor: It may be the foundation of the suit, but 
it is not alleged. They have stipulated (1) that the City 
of Louisville owns and maintains the amphitheater and 
that by virtue of an agreement dated May 14, 1947, that 
the Louisville Park Theatrical Association used that amphi­
theater during certain designated dates, and we filed a copy 
of that agreement. I think that is what they are confined 
to by their pleadings. They say we maintain and operate. 
We do not maintain, we do not own, we merely use, and; 
it is by virtue of the 1947 agreement and not by virtue of 
anything else.

By the Court: And that, Mr. Taylor, is the very thing 
I think justifies the agreement—when they allege you main­
tain and you operate. I think any agreement made by the 
City with your independent organization which shows how 
the structure came into being and how it is maintained 
is not particularly material, but I think it is helpful, I think 
it is competent.

Mr. Taylor: Judge, they have stipulated, which I am 
willing to go along with, that the City maintains it. That 
leaves an issue that we use it by virtue of that particular 
1947 agreement and no other, and I think the rights—

By the Court: Certainly if they put in an agreement 
here that is abrogated by a subsequent agreement, it can 
only be historical, it can only show the development of this 
structure, which I don’t think is completely immaterial, 
I don’t think it has any marked materiality, but as to 
saying it has no place whatever in the record, I can’t go 
that far.

Mr. Taylor: Object to the admission on the basis that 
we have agreed that our rights to use the amphitheater, 
the Louisville Park Theatrical is controlled by the 1947 
agreement.

By the Court: Certainly nobody can deny that.
Mr. Taylor: That’s right. Now, there has been no

question raised in the stipulation, in agreeing as to those 
facts, as to the prior agreements. The 1947 agreement, 
itself, recites that it is substituted for the 1943 agreement, 
and I think this, that our rights of use of the Amphitheater 
are controlled by that and that alone, and not by prior

Proceedings



51

agreements, which have been cancelled, and a new agree­
ment substituted therefor.

By the Court: I am agreeing with everything you say.
Mr. Taylor: I can see no purpose that the others serve 

and they should have no bearing on the relationship in 1949.
By the Court: I am not sure they will have any bearing 

but I don’t understand why they might not be read and 
full information put into the record as to how this project 
came into being, and how it has been operated.

Mr. Taylor: They have stipulated how it came into 
being.

By the Court: That’s right, and now as a part of that 
stipulation or in aid to the stipulation, they propose to 
put in the only real legal evidence of how it could have 
been provided and how it could have been operated, and 
that is by—

Mr. Taylor: They have stipulated how it came into
being. They didn’t raise it, they confined their period to 
1949. They did not raise that when the stipulation was 
agreed to. They stipulated that it was constructed by the 
Board of Park Commissioners in 1938, that we contributed 
$5,000 to it, the City now owns it, and maintains it. Now, 
I see no need for that to go in the record, it has no bearing 
on what we do as of 1949. That is the issue. If they had 
wished that to go in, I think I should have been given the 
right to—

By the Court: Oh, well, now you are talking about a 
different proposition. If you had an agreement with coun­
sel that this case was to be presented for your defendant, 
the defendant whom you represent, upon that stipulation 
which you read, then that brings up a different question—- 
if that was your agreement.

Mr. Taylor: We had no binding agreement, your Honor, 
but it was my understanding that those were the facts 
wThich we stipulated and that was it.

By the Court: I have no way of knowing what tran­
spired in your conference when the stipulation was agreed 
upon, and I say to you again that fundamentally their 
rights must have been upon the present contract.

Mr. Taylor: That’s right, and that is why I was per­
fectly willing to stipulate it and not require them to prove

Proceedings



52

it or any of the other facts of their allegations.
Mr. Carter: Your Honor, if I may say a word here, 

I  think that the question that Mr. Taylor is raising, I don’t 
believe is substantial at all, because I believe that now we 
have reached the point in this case where the question 
to be decided is purely a question of law. It certainly 
seems to me that these are agreements that are held by 
the City, that if we had not even submitted them, in reach­
ing your decision you would have had the right to go back 
and look at those agreements. I believe that insofar as 
those agreements are concerned, that they are part of the 
history of the case. We are going to have to show that in 
some way we are able to bind them under the 14th Amend­
ment. I see nothing wrong to the defendant by our show­
ing the three agreements which are on record now in the 
office of the Public Parks or Commission or whatever it is, 
of Louisville. These agreements were entered into. They 
are confined to the operation of this Iroquois Amphitheater. 
They are three agreements. We had the three agreements 
and we had intended to submit them. The question of the 
stipulation of the facts was question of whether or not 
we were going to have to present evidence. We by no 
means understood that by the stipulation of what occurred 
that we were prohibited from submitting these agreements 
because we think they are very essential to the case and 
we had intended to submit them all along as soon as we 
got them.

By the Court: Certainly as I undestand Mr. Taylor, 
his understanding—‘now, whether there was any express 
agreement, that is something the Court can’t tell—but he 
has stated here that his understanding of the result of your 
negotiation about a stipulation was that the case as to the 
Theatrical Association was to be submitted to the Court 
upon that stipulation as you agreed to it and as you signed 
it, and that was to be the case.

Mr. Carter: We certainly didn’t understand that. The 
only thing I can say is we indicated that we would not 
require the presence of the President of the Association 
and would not present any testimony, that what we had here 
was a sufficient basis for us to go to trial and present the 
legal question.

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53

By the Court: That is his point, that is what he said, 
that you would not present any testimony or evidence ex­
cept the stipulation. Now, you are going outside the stipu­
lation and offer to introduce some writings that evidence 
negotiations and conduct of this enterprise prior to the 
time that the plaintiff in this case says that—

Mr. Carter: Your Honor, at least when we talked to 
Mr. Taylor, the question was whether Mr. Cans, I believe, 
was required to be here. These agreements we had them 
all read}* and typed up to present, and I believe we indi­
cated that alb we had to do was going to submit exhibits, 
at least in talking to either Mr. Meagher or Mr. Taylor, I 
can’t remember which, that we needed no oral testimony. 
I certainly didn’t understand and I am sure I don’t believe 
Mr. Shobe understood that we were prohibited from pre­
senting these agreements.

By the Court: Now, your understanding is that this 
stipulation merely obviates the necessity of introducing 
any testimony with respect to the matter specifically cov­
ered in the stipulation, and that you have the right beyond 
the stipulation to introduce any other testimony that you 
desire to introduce.

Mr. Carter : Well, yes, your Honor, but certainly those 
that are essential to our case. We only meant to introduce 
these three exhibits, three agreements as exhibits as part 
of the record.

By the Court: I am interested in whether you’ve got an 
agreement here.

Mr. Taylor: It was my understanding, if the Court
please, there would be no testimony, that this would be the 
facts as submitted to the Court. The lease under which 
we operate at the present time was made a part of it. 
It was agreed that was the only lease. Mr. Shobe and I 
made a very careful check to be sure that that was the 
agreement that was in effect and no other agreements were 
in effect. It was my understanding that was what the case 
would be. I have gotten up and announced ready for trial. 
If they are going to be allowed to go any direction they- 
want to, in addition to the agreement, I don’t know whether 
I am ready for trial or not. I assumed that this was the 
state of facts to be submitted to the Court and argued this

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54

morning. That is my understanding of it. I paid no atten­
tion whatsoever to any prior agreements. If they are going 
to be considered in evidence, I feel that I should have an 
equal right.

By the Court: Certainly you should.
Mr. Taylor: And I can’t announce ready for trial under 

those circumstances, if there is no limit in addition to the 
stipulation. I thought the purpose in doing this was to 
narrow it to the facts as they existed in 1949 with respect 
to Mr. Muir and the Louisville Park Theatrical Associa­
tion. I don’t know where their misunderstanding arose.

By the Court: If that is your understanding of the
agreement with respect to the stipulation, I will not require 
you to go forward, unless you have an opportunity to 
present any other evidence. The stipulation, I suppose, 
would be nullified.

Mr. Taylor: That’s right.
Mr. Shobe: Your Honor please, as I understand the 

transactions which we had with Mr. Taylor, the purpose 
of making this stipulation was to eliminate as much as 
possible the testimony which was to be given here in court 
today. Frankly, I never at any time understood that we 
would not be allowed, in addition to the stipulation, to 
present any other exhibit which we had regarding this case.

By the Court: That is solely dependent on your agree­
ment with Mr. Taylor. If you agreed that the case would 
be submitted on that stipulation, then that is your case. 
If you didn’t make that agreement, and the stipulation was 
only intended to cover specific facts therein agreed upon, 
then I see no reason why you should not be permitted to 
tender the previous agreements.

Mr. Taylor: Your Honor please, that was my under­
standing of the purpose of the stipulation. If we were going 
abroad and far afield, I would have sat quietly and let 
them prove every one. of them, put the burden on them to 
prove every one of them. I am perfectly willing to stipu­
late and try what is there and nothing else, by stipulation. 
Under those circumstances, I am not ready for trial, if 
additional facts are to be gone into.

Mr. Carter: Your Honor, I think Mr. Taylor is being 
somewhat unnecessarily technical on this. There isn’t,

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55

frankly, there isn’t substantial difference as far as I have 
been able to see insofar as it effects us, between the three 
agreements. The essential allegations as I can read them 
in the three agreements are substantially the same. In­
sofar as Mr. Taylor is concerned, I know that on Saturday 
we talked and we indicated that insofar as these stipula­
tions were concerned, we would sign them and come here 
ready for trial. There was no indication and certainly in 
the conversation that we had, I can’t understand his having 
understood that, that we would limit ourselves, that we 
would bind ourselves only insofar as these were concerned. 
The hope was that by reaching agreement on the stipulated 
facts that we would cut down the time which we would have 
to spend and which your Honor would have to spend in 
going over facts which are unnecessary to the case. I don’t 
understand the question of anything being far afield. There 
is nothing far afield here. The only problem that involves 
the other two agreements is merely for the consideration 
of the Court and the record on the question as to what we 
would have to try to show as to whether or not the Louis­
ville Park Theatrical Association is or has in fact been 
actually acting as a public agent in this regard. Insofar 
as the Louisville Park Theatrical Association, unless we 
can prove that, as we have argued with Mr. Taylor, and 
we have had discussions with your Honor on this, as you 
well know unless we can prove that, then of, course we 
have no cause of action under the 14th Amendment against 
them. I don’t believe that it is a correct statement that 
we are actually catching Mr. Taylor by surprise or any­
thing like that insofar as we merely want to present the 
other two agreements. The question now is simply going 
to be a question of argument, argument on the law. I don’t 
think there is any additional preparation or anything else 
that he would have to go into as far as that is concerned.

By the Court: I don’t think there is any materiality 
of any consequence attached to these agreements other than 
the one that was in force in 1949. What had transpired 
previously to that may be a little bit instructive, indicative 
of how this enterprise was born and nurtured in its early 
years, but actually the rights of this plaintiff and those 
whom he represents is going to depend on the conditions

Proceedings



56

that existed in ’49 and the conditions with respect to the 
operation of the municipal theater of necessity would de­
pend upon the current contract between the City and the 
Association, but we haven’t gotten to that question. The 
question now is whether you and Mr. Taylor are going to 
try this case on stipulation. Got a very sharp issue here. 
He says his understanding of the conference was that that 
stipulation which you read was the full statement of the 
facts on which this case was to be submitted and tried. 
You say that it was only an agreement obviating the neces­
sity of you introducing witnesses, to establish those facts 
and it didn’t curtail you, that you could go beyond the 
stipulation with any other testimony that you thought was 
material or proper. That’s a fair statement, isn’t it!

Mr. Carter: Yes, sir.
Mr. Taylor: Judge, it was my understanding when we 

finally reached an agreement as to one thing, one final 
thing Saturday afternoon. I talked to both Mr. Carter and 
Mr. Shobe. I think my last words to them on the tele­
phone were ‘ ‘ The only thing we have is the legal argument, 
there will be no testimony. ’ ’ My feeling is this, under 
those circumstances I came to Court this morning ex­
pecting to base my argument on the stipulated facts, no 
others. I don’t know very frankly what is contained in 
the 1938 and 1943 agreements. I have paid no attention 
to them. They may have a very direct bearing and could 
possibly on this case if under their theory of it that here 
we have stipulated what existed in 1949 as to the rights 
under the lease and what we did in 1949, but they want to 
introduce something prior thereto to effect our status in 
1949. I am not prepared to stipulate my whole case as to 
what my client did in 1949 and his rights as of that time, 
and that is the only thing we are concerned with. .

By the Court: As I understand you, you have no testi­
mony!
Mr. Taylor: I have absolutely none.

By the Court: The question is how whether you Should 
have some time to examine these prior agreements.

Mr. Taylor: Give them consideration and see what
hearing they have, if they are going to be allowed to go 
into that as effecting my rights in 1949.

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57

By the Court: I don’t think they are to be considered 
with respect to the rights of this particular plaintiff or any 
class represented by him. That is why I say I think they 
have slight materiality. My idea was that perhaps might 
indicate history and development of this enterprise, and 
for that purpose they might be considered and for none 
other.

Mr. Taylor: I am willing to stipulate this, that the City 
of Louisville has never contributed any funds to the Louis­
ville Park Theatrical Association for the performance of 
its—or giving of its performances.

By the Court: And correspondingly received no benefit 
in a monetary sense out of the proceeds of any performance.

Mr. Taylor: They have charged this, your Honor, that 
in 1949 we were, as they put it, and upon information and 
belief defendant, Louisville Park Theatrical Association, 
in maintaining and operating the said Amphitheater on 
public property, to-wit, Iroquois Park, is carrying on a 
public function as agent of the City of Louisville, and they 
got to show at that time we were agent in 1949 and that 
we were carrying on a public function in presenting those 
shows at the Amphitheater.

Personally, I don’t see what effect the prior agreement 
under which we used that have in 1949 when we have the 
agreement under which we operated in 1949 in the record, 
a part of it, for consideration. I frankly don’t know what 
is in those agreements, and I don’t know for what purpose 
they would be introduced as to any prior period of time. 
I am just not prepared to stipulate my entire case, with 
additional evidence allowed. I am perfectly willing to go 
forward at the present time on that stipulation of facts.

By the Court: Otherwise, you want some additional
time!

Mr. Taylor: I would, and that would naturally with­
draw my stipulation.

By the Court: Of course if that was stipulated, you 
should have put that in the stipulation—ease to be sub­
mitted on this stipulation of facts, neither party would be 
required or would desire to introduce any further proof.

Mr. Carter: Well, your Honor, I don’t feel frankly— 
this case has been delayed for a long time—I think in terms

Proceedings



58

of the attorneys, I am the one who has been most adversely 
affected in terms of coming down here. I had hoped we 
could clear this thing up now. In view of Mr. Taylor’s 
statement, I am of course tempted, in order to get it over 
with, to merely submit the 1947 agreement.

By the Court Is that the one that was in force in ’491
Mr. Taylor: Yes, sir, that is part of the stipulation.
Mr. Carter: I feel that certainly the record ought to 

maintain the whole picture. I am wondering whether, in 
view of this misunderstanding, whether Mr. Taylor would 
agree to maybe a recess for a little while, in terms of today, 
and look over the first and second agreement and let us 
know whether he is willing to proceed. Frankly, it would 
be a terrific hardship for me again to have to come back 
from New York

By the Court: With respect to the Amphitheater, or to 
the Association, do I understand that the stipulation which 
has been read and the exhibits, the three copies of agree­
ments between the Association and the City, constitute the 
plaintiffs’ easel

Mr. Carter: We have nothing further in regard to it, 
insofar as the City is concerned, the stipulation would 
present our case. Going to bring no oral testimony, and 
that is what we hoped we were getting at. I am sorry this 
confusion arose as far as Mr. Taylor is concerned.

By the Court: No confusion about anything except
what occurred in your negotiations, culminating in what 
each of you thought was a stipulation.

Mr. Taylor: If your Honor please, Mr. Carter has just 
stated my whole objection to this. It was his understanding 
and mine that this would be their case and my case and 
there would be no testimony. Now, there was no discussion 
with me about including in this stipulation additional ex­
hibits. We filed and were very careful to find out if that 
was the only agreement in effect covering our rights as of 
that time. Frankly, if I understand it, there is going to be 
no testimony, that the whole case, as he just stated, is that 
with exception of the right to have—

By the Court: What do these prior agreements embody 
that is not embodied in effect in the ’47 agreement, that was 
in effect in ’49.

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59

Mr. Carter: The first agreement is the only one, I sup­
pose—it merely shows how the enterprise came into being. 
The essential allegations on which we rest our case, in 
terms of the contract, the authority in the City, and the 
authority in the Association, and so forth, are substantially 
the same throughout, but—•

By the Court: Are embodied in your stipulation ?
Mr. Carter: Beg pardon ?
By the Court: Substantially, if I understood Mr. Shobe 

as he read that stipulation, the development of this enter­
prise is practically stated in that stipulation.

Mr. Carter: Yes, it is.
Mr. Taylor: We admitted we were a non-stock, non­

profit, private corporation, and that by virtue of an agree­
ment dated May 14, 1947, we gave the performances at 
the Amphitheater. There is no discussion of the fact that 
we had prior agreements in 1938, I think, and in 1943. I 
just object to their being brought in, if I am—

By the Court: Of course your resolution in ’47 constitut­
ing contract in effect in ’49 will be admitted—no objection 
to that. Your objection goes to the two prior agreements. 
Now, you said you were tempted to withdraw those, your 
tender of those—how far does that temptation take you?

Mr. Carter: I said that I was in terms of my conven­
ience, but I don’t know, your Honor, I think the history of 
what occurred here, I think it is essential to our case.

By the Court: Unfortunately, I don’t know what trans­
pired in your negotiations for that stipulation. Mr. Taylor 
says his understanding was when that stipulation was 
agreed upon that that was to constitute the plaintiff’s case.

Mr. Taylor: There would be no testimony from either 
side.

Mr. Carter: I am sorry, Mr. Taylor, that wasn’t my 
understanding.

Mr. Taylor: Mr. Carter, in our last convensation on
Saturday, I think your very words were “That’s it, all that 
is left for us is legal argument.”

Mr. Carter: I agree in terms of that, but I had assumed 
that insofar as the agreements were concerned we were 
going merely to file them as exhibits, wouldn’t need to bring

Proceedings



60

any people here. That is why I told you we didn’t need Mr. 
Gans, and I didn’t think we would have to have anything 
but this. I didn’t know that you would object to our intro­
ducing these exhibits.

Mr. Taylor: Mr. Carter, when you tell me there is no 
need to have anything here, and that is all the testimony. 
When you stipulate a case, you don’t stipulate your com­
plete case and then say “Well, in addition to that, you can 
prove anything you want to.”

By the Court: Are the copies of those agreements which 
you propose to introduce authenticated?

Mr. Carter: The copies of the agreements that we have 
been attested by the Secretary of the Board of Park Com­
missioners.

By the Court: My understanding is that attested copy 
may be introduced by its custodian, but a certified copy 
may be introduced in and of itself.

Mr. Meager: If your Honor please, I would like to make 
this comment with regard to the attestation of these agree­
ments. Under Kentucky Statutes, the Director of Finance 
of the City of Louisville is the custodian of all records, and 
I think under Title 28—got that citation for your Honor 
here 1738,that section provides that while such records 
may be introduced in a Federal Court, and I think insofar 
as those agreements are concerned, if Mr. Carter wants to 
file them, he should have them duly attested by the cus­
todian of the records of the City.

By the Court: No question about that, I can’t admit 
them in the face of an objection. There is no objection to 
the agreement in effect at the time because he makes no 
objection to the ’47 agreement, which was in effect in ’49.

Mr. Taylor: I stipulated that was in effect and made it 
a part of the stipulation, which we did.

By the Court: Now, the two previous agreements. .
Mx. Shobe: If the Court please, of course the copies 

which we have are not attested. The reason they are not 
attested, which may or may not be of importance, but they 
were obtained by the City Attorney at our request and 
stated to be the correct copies of the matters on file.

By the Court: I have no doubt in the world that they

Proceedings



61

are, but the rules of evidence in the face of an objection 
wouldn’t permit them to be introduced in their present 
form.

Mr. Shobe: We anticipated no objection after our con­
ferences.

Mr. Taylor: They were never discussed with me at all.
By the Court: The record in this case may show that 

you tendered alleged copies of two previous agreements, 
one of date in ’43, the other of date in ’38, and offered to 
file them as a part of the testimony and evidence to be con­
sidered on behalf of the plaintiff in this case, that the Court 
sustains the objection as to the copies of alleged agreements 
executed in ’43 and ’38, and that in order that they may be 
identified, they may be marked as exhibits tendered—the ’38 
agreement as Exhibit Number 1, the ’43 agreement as Ex­
hibit Number 2—and in event the case is reviewed you have 
the benefit of them and of the Court’s refusal to permit 
them, though the legal reason is that they are not authen­
ticated—well, that’s one reason, another reason is the state­
ment of Mr. Taylor here that he is not prepared to admit 
those because he had no notice of it, and in a conference it 
was agreed, according to his understanding, that the case 
would be submitted on the stipulation which has been read 
and that would constitute the case for both the plaintiff and 
the defendant. Now, have you any other testimony with re­
spect to any other phase of the case ?

Mr. Shobe: That, is the case for the plaintiffs.
By the Court: All right. Give the reporter the stipu­

lations which were read, the ’47 agreement, the ’43 agree­
ment, and the ’38 agreement—the ’47 agreement is an ex­
hibit, number 3.

Mr. Taylor: Part of the stipulation—incorporated
therein and made a part thereof, by The express language 
of the stipulation.

By the Court: As I recall the stipulation, the substance 
of the other two embodied there.

Mr. Taylor: “The defendant, Louisville Park Theatrical 
Association, under and by virtue of written agreement with 
the City of Louisville, dated May 14, 1947, a copy of which 
is filed herewith and made a part hereof.” In other words,

Proceedings

1



62

I made that a part of the stipulation, and the other two 
prior agreements were never mentioned or discussed in 
reaching a stipulation of fact.

By the Court: All right, that’s the case with respect 
to the Park Theatrical.

Mr. Taylor: That is the Park Theatrical Association’s 
case.

By the Court: What do you say for the defendant, City 
of Louisville ?

Mr. Meagher: I am not quite clear on this—do I under­
stand you are submitting your case against the City on the 
stipulation f

Mr. Shobe: Yes..
Mr. Meagher: You have no argument on the res judi­

cata aspect of this—no proof on that or these allegations 
about unsanitary or incomplete facilities, is that it?

Mr. Shobe: Yes.
Mr. Meagher: Well, your Honor, I have some proof I 

want to put on.

Proceedings

EXHIBIT 1 FOR IDEN. (Tendered).

THIS AGREEMENT, made and entered into this 19th 
day of April 1938 between the BOARD OF PARK COM­
MISSIONERS OF THE CITY OF LOUISVILLE, KEN­
TUCKY, a municipal corporation, hereinafter referred to 
as the Park Board, and the LOUISVILLE PARK THE­
ATRICAL ASSOCIATION, a corporation having no capital 
stock and from whose operations no private pecuniary 
profits is to be derived, hereinafter referred to as the Asso­
ciation.

WITNESSETH THAT:
WHEREAS it is the opinion of the Park Boardfdhat the 

construction of an outdoor amphitheatre, suitable ior the 
production of musical, dramatic, operatic, and other forms



63

of entertainment, out-of-doors, in Iroquois Park, would 
greatly increase the recreational facilities available to the 
public in saidcPai'k, and the use and enjoyment of said Park 
by the PublicMnd

WHEREAS the Park Board has, therefore, determined, 
pursuant to the authority and discretion conferred on it by 
Section 2849 of the Kentucky States, to improve a portion 
of Iroquois Park by constructing such an amphitheatre 
therein at the location and substantially in accordance with 
the plans shown on the plat attached hereto as part hereof 
and signed by the parties, and

WHEREAS the Park Board is desirous of commencing 
the work of constructing said amphitheatre at once, so as 
to have it ready for use by the public during the summer of 
1938, but has no funds presently available for that purpose, 
because no appropriation therefor was included in its 
budget for the fiscal year ending August 31, 1938, and it is 
forbidden by law in one year to anticipate, or create, a 
charge upon its income for a future year, and

WHEREAS the Park Board believes, however, that it 
can obtain all but Five Thousand ($5,000.00) Dollars of the 
money necessary to finance the. construction and equipment 
of said Amphitheatre, as a grant from the United States 
Works Progress Administration, and

WHEREAS one of the purpose for which the Associa­
tion was organized was “to enable the public generally to 
enjoy musical, dramatics, operatic, and other forms of en­
tertainment to as great an extent and at as low a cost as 
possible,” and the Board of Directors of said Association 
are of the opinion that said purpose can best be served by 
assisting the Park Board to procure the funds necessary to 
enable it to begin the construction of said Amphitheatre in 
time to have it ready, and available, for use during the sum­
mer of 1938, and by undertaking to arrange for the produc­
tion of said forms of entertainment therein,

NOW THEREFORE, in consideration of the premises 
and of the covenants and agreements hereinafter set out, 
the said parties do hereby convenant and agree with each 
other as follows—

Exhibit 1



1. Construction of Amphitheatre; Contribution of 
Association Thereto.

(a) The Park Board agrees that it will proceed at once, 
and at its OAvn expense, to prepare plans and specifications 
for the construction and equipment of an outdoor amphi­
theatre in Iroquois Park, substantially in accordance with 
the plans shown on the plat attached hereto; to exercise due 
diligence in the preparation of said plans and specifications, 
and to submit same, as soon as they have been prepared, to 
an architect, or architects, designated by the Association, 
for examination. As soon as the said plans and specifica­
tions have been approved by said architect, or architects, 
the Park Board agrees that it will make application to the 
United States Works Progress Administration for a grant 
of an amount sufficient to finance the cost of constructing 
and equipping said Amphitheatre, less $5,000.00, to use its 
best efforts to obtain said appropriation from said Works 
Progress Administration, and that, in the event it is success­
ful in obtaining said grant at any time on or before the 1st 
day of May, 1938, it will immediately begin the work of con­
structing and equipping said Amphitheatre in accordance 
with said plans and specifications, and will complete same 
by July 1, 1938, unless prevented by fire, .flood, tornado, 
strikes, or other casualties, or causes, beyond its reasonable 
control.

(b) The Association agrees that, in the event the Park 
Board does obtain said grant, and constructs said Amphi­
theatre, as hereinabove provided for, the Association will 
promptly, upon the completion thereof, pay to the Park 
Board the sum of $5,000.00 in lawful money of the United 
States.

2. Grant to Association of Exclusive Right to Use Amphi­
theatre from May 1 to September 30,1938—1942,

The Park Board, not possessing the necessary personnel, 
or facilities, to arrange for the production of musical, dra­
matic, operatic,- and other forms of entertainment in said 
Amphitheatre, and the Association being organized for 
that purpose, the Park Board, in order to promote the most

64

Exhibit 1



65

effective use of said Amphitheatre for said purposes, and 
the greatest enjoyment thereof by the public, and in con­
sideration of the Association’s agreement to contribute 
$5,000.00 towards the cost of constructing and equipping 
said̂  Amphitheatre, and the further agreement of the Asso­
ciation to turn over to the Park Board the net proceeds 
derived by the Association from entertainments conducted 
in said Amphitheatre, as hereinafter provided for, does 
hereby give and grant to the Association the exclusive right 
and privilege to use said Amphitheatre, together with the 
land,_ buildings, equipment, and appurtenances enclosed 
within the red lines on the plat attached hereto (hereinafter 
collectively referred to as the Amphitheatre), on such dates 
between May 1st and September 30th of each year, com­
mencing with the calendar year 1938 and ending with the 
calender year 1942, as the Association may, by written 
notice to the Park Board, designate, and that it will not 
lease, or give to any other person, firm, or corporation the 
right to use, said Amphitheatre during said period in any 
of said years, without having first obtained the written 
consent of the Association thereto.

3. Use of Premises.
The Association shall have the right to use the Amphi­

theatre on any, or all, of said dates for the purpose of re­
hearsing, and/or presenting, such musical, dramatic, op­
eratic, athletic, and other forms of entertainment, both 
amateur and professional, as it may select; for the sale and 
service on such occasions of such food, soft drinks, tobacco, 
cigars, cigarettes, candy, programmes, musical scores, etc., 
as are customarily sold, or offered for sale, in similar places 
of public entertainment, and for the rendition of such other 
services as are customai'ily rendered in connection there­
with, and for no other purpose.

The Association shall have the right to produce the en­
tertainments, sell and serve the items, and render the serv­
ices aforesaid, itself, or to contract with any other person 
firm, or corporation, for the production of said entertain­
ments, the sale and service of said items, and the rendition 
of said services, or any of them.

Exhibit 1



66

4. Right to Sublease.
The Association shall have the right to sublease said 

Amphitheatre at any time between May 1st and September 
30th of the years 1938, 1939, 1940, 1941, and 1942, to any 
person, firm, or corporation, for the purpose of producing 
such musical, dramatic, athletic, or other forms of enter­
tainment therein as have been approved by the . Board of 
Directors of the Association, upon such terms and condi­
tions, not inconsistent with this agreement, as may be ap­
proved by said Board of Directors, and shall have the right, 
upon like terms, to sell, or sublease, to any person, firm, or 
corporation the right, or privilege, of selling and serving 
of food, soft drinks, tobacco, cigars, cigarettes, candy, 
programmes, musical scores, etc., and of rendering the other 
services, which the Association is authorized to sell and 
serve, or render, under the provisions hereof, but no such 
sublease shall be for a longer period than one season—from 
May 1 to November 1, of any year.

5. Charges Association is Authorized to Make.
The Association, or any person, firm, or corporation, 

with whom the Association has contracted for the produc­
tion of any entertainment at said Amphitheatre, shall have 
the right to charge any person seeking to attend said enter­
tainment such admission fee as may be fixed by the Board 
of Directors of the Association. Likewise, the Association, 
or any person, firm, or corporation with whom it has con­
tracted to furnish food, soft drinks, programmes, musical 
scores, etc., or to render such services as are customarily 
rendered in connection with such entertainments, shall have 
the right to charge such price therefor as may be approved 
by the Board of Directors of the Association. Provided, 
however, that such admission fees and charges shall be rea­
sonable and consistent with the desire of both parties hereto 
to increase the use of Iroquois Park by making the enter­
tainment presented at said Amphitheatre available to the 
public at low cost. )

Exhibit 1



6. Signs and Advertisements.
The Association agrees that it will not erect, or main­

tain, any signs, or advertisements, in, upon, or about the 
Amphitheatre, except only such signs, or advertisements, 
as may with the approval of the Park Board be placed 
thereon, to advertise attractions to be presented in said 
Amphitheatre, and as are contained in programmes dis­
tributed at any performance given in said Amphitheatre, 
and agrees that the Park Board may remove, or obliterate, 
any sign, or advertisement, erected or maintained by the 
Association in violation of this covenant.

7. Maintenance and Repair of Premises.
The Park Board agrees that it will, at all times, during 

the life of this agreement and at its own expense, (a) main­
tain said Amphitheatre in a neat, clean and presentable con­
dition, and keep all equipment and appurtenances thereunto 
belonging in good order and repair, and make any replace­
ments necessary to maintain same in serviceable condition:
(b) furnish all water and electricity necessary to enable 
the Association, or any person, firm, or corporation with 
whom the Association, or any person, firm, or corporation 
with whom the Association may have contracted, to produce 
the entertainments contemplated by this agreement; and
(c) furnish sufficient park police to provide for the protec­
tion of the Amphitheatre and the preservation of order 
therein during any entertainment given by, or under the 
auspices of, the Association therein, and for the adequate 
policing and direction of traffic on such occasions, and to 
prevent anyone from attending said entertainments without 
paying the admission fee prescribed by the Association.

The Association shall have the exclusive right to select, 
and agrees to assume responsibility for employing, fixin°- 
the compensation of, and paying the salaries and wages of 
all artists, actors, musicians, ticket-takers, ushers, stage 
hands, and other persons, other than police, employed in 
connection with the presentation of any entertainment pro­
duced by, or under the auspices of, the Association at said 
Amphitheatre; and the Association further agrees, at its

67

Exhibit 1



own expense, to furnish the labor and material necessary to 
clean up the Amphitheatre after each performance given 
therein by it, or under its auspices, it being understood and 
agreed, however, that the Park Board shall be responsible 
for keeping said Amphitheatre in a neat and clean con­
dition at all other times, and shall turn said Amphitheatre 
over to the Association in that condition a reasonable time 
before each performance, scheduled to be given therein by 
the Association, or under its auspices.

8. Guaranty of Right of Ingress and Egress.
The Park Board covenants and agrees, that it will pro­

vide such macadam, or other hard-surfaced, roads and paths 
leading to the Amphitheatre and such parking area or 
areas, properly surfaced, adjacent to the Amphitheatre, as 
are reasonable necessary to accommodate the persons de­
siring to attend entertainments given therein by the Asso­
ciation, or under its auspices.
9. Association to Furnish Annual Accounting of Its Opera­

tions to Park Board; Disposition of Net Profits.
The Association agrees, on or before the first day of Jan­

uary 1939, and the first day of each year thereafter during 
the life of this agreement, or any extension thereof, to fur­
nish the Park Board with a complete written statement of 
all entertainments produced by it, or under its auspices, at 
said Amphitheatre during the preceding season, the scale 
of admission fees charged the public attending said enter­
tainments, the number of persons attending same, and such 
other information as may be helpful to the Park Board in 
determining whether the operation of said Amphitheatre, 
under the auspices of said Association, has in fact con­
tributed .materially to the use and enjoyment of the park 
system by the public.

At the same time, the Association shall furnish the Park 
Board with an audited statement of all moneys received by 
it during the preceding season from the sale of admissions, 
food, soft drinks, tobacco, cigars, cigarettes, candy, pro­
grammes, programme advertising, concessions, subleasing 
said Amphitheatre, and all other sources arising out of, or

68
Exhibit 1



on account of, the entertainments presented by it, or under 
its auspices, at said Amphitheatre during said season, and 
of all expenditures made, or incurred, by the Association in 
connection therewith. Each such annual statement shall 
complement the one for the prior year, or years, so that said 
statements shall cumulatively reflect the results of the 
Association’s operation of said Amphitheatre under this 
agreement.

Upon the termination, by lapse of time, of this agree­
ment (unless it be then extended and, in that event, upon 
the termination of the last extension thereof), the Associa­
tion agrees to pay over to the Park Board such sum, if any, 
as represents the net profit realized from its entire opera­
tions hereunder, provided the Park Board then agrees to 
use any amount so turned over to it by the Association for 
the physical improvement of said Amphitheatre, and for 
no other purpose whatever ; otherwise said Association shall 
have the right to retain said net profits. Out of any profits 
the Association shall have the right to retain as its own or 
to repay to the persons contributing it, the sum of $5,000.00 
furnished by the Association to the Park Board in order to 
make possible the construction of the Amphitheatre, and 
said sum of $5,000.00' shall be considered as an expense of 
the Association in computing any net profit to be turned 
over to the Park Board.

10. Use and Control of Amphitheatre by Park Board.
The Park Board shall, at all times during the life of this 

agreement, have and retain the care, management, and 
custody of said Amphitheatre, and all equipment and ap­
purtenances thereunto belonging and the right to make, or 
authorize, any use thereof, which is not inconsistent with, 
and does not interfere with, the enjoyment by the Associa­
tion and its subleassees of the rights and privileges herein 
conferred on the Association; provided, however, that the 
Park Board shall not lease said Amphitheatre to any other 
person, firm, association, or corporation between May 1st 
and September 30th of any year during the life of this 
agreement for the purpose of producing an entertainment 
therein, for the privilege of attending which an admission

69

Exhibit 1



70

fee will be charge, or from which it is expected that any 
pecuniary profit will be derived, unless said person, firm, 
association, or corporation shall have first sought to sub­
lease said Amphitheatre from the Association, and have 
offered to pay the Association the regular rental then being 
charge, or quoted, by the Association to other sublessees, 
or prospective sublessees, of said Amphitheatre, and the 
Association shall have wilfully and arbitrarily refused to 
sublease said Amphitheatre to such person, firm, associa­
tion, or corporation, in which case the Park Board shall 
have the right to require the Association to execute such a 
sublease.

The Park Board shall, at all times, have the right to 
make and enforce such reasonable rules and regulations as 
it deems necessary for the preservation of said Amphi­
theatre, and the equipment and thereunto belonging, and 
for the preservation of good order therein, and shall have 
the right to prohibit the production in said Amphitheatre 
of any entertainment which is, in the opinion of the Park 
Board, indecent or immoral, or calculated to create, or 
incite, racial or religious antagonism, or a disturbance of 
the public peace.

11. Right of Park Board to Cancel Agreement.
(a) It is mutually understood and agreed that, in the 

event the Park Board is unable, on or before the 1st day of 
May, 1938, to obtain sufficient funds to enable it to con­
struct said Amphitheatre, with the assistance of the $5,-
000.00 to be contributed by the Association hereunder, this 
contract shall automatically terminate, and each of the par­
ties shall be released from all further obligation hereunder.

(b) It is likewise mutually understood and agreed that, 
in the event the Park Board shall hereafter determine that 
a better use of the property in question could be made for 
public park purposes than by continuing to use it as an 
amphitheatre, and shall decide to discontinue its use for 
said purpose, and to demolish the improvements to be 
erected thereon as herein provided for, the said Park Board 
shall have the right to terminate this agreement as of Sep­
tember 30th of any year after 1938, by giving the Associa-

Exhibit 1



71

Exhibit 1
tion notice in writing of its election to do so on or before 
the first day of February of said year, provided, however, 
that in the event this agreement is so terminated at any time 
prior to September 30, 1942, the Park Board shall reply to 
the Association such proportionate part of the $5,000.00, 
contributed by the Association toward the construction of 
said Amphitheatre, as the unexpired life of this agreement 
is of five years.

In Testimony Whereof, the parties have caused their 
respective names to be subscribed, and their corporate scale 
to be affixed hereto, by their proper officers duly thereunto 
authorized by appropriate resolutions of their respective 
Boards of Directors, all at Louisville, Kentucky, the day 
and year first above written.

Attest:

Board of Park Commissioners, 
By B. C. Beckmann,

President.

Estelle Y. O’Brien, 
Secretary.

Attest:

Louisville Park Theatrical Association, 
By C. R. Bottorff,

President.

John H. Hoagland,
Executive Secretary.

EXHIBIT 2 FOR IDEN. (Tendered).

THIS AGREEMENT made and entered into this 1st day 
of March, 1943, by and between the CITY OF LOUIS­
VILLE, hereinafter referred to as the CITY, through its 
Department of Public Parks and Recreation, and the 
LOUISVILLE PARK THEATRICAL ASSOCIATION, a 
corporation with no capital stock from whose operations



no private pecuniary profit is .to be derived, hereinafter re­
ferred to as the Association.

WITNESSETH THAT:
WHEREAS, by an agreement made and entered into on 

the 19th day of April, 1938, the then Board of Park Com­
missioners of the City of Louisville, agreed to lease to the 
Louisville Park Theatrical Association, under certain terms 
and conditions therein specifically set out and for the pur­
poses therein enumerated, a certain area therein described 
in Iroquois Park, with the right to erect thereon and con­
duct an Amphitheatre, and

WHEREAS, all of the terms and conditions of the said 
contract have been complied with by both parties and that 
the term of said contract has expired or is about to expire 
and the parties by mutual agreement are desirous of renew­
ing the said contract for a period of five years, and

WHEREAS, by an act of the 1942 Session of the General 
Assembly of the Commonwealth of Kentucky, known as 
Chapter 34, Kentucky Acts of 1942, the Board of Park Com­
missioners of the City of Louisville was abolished and there 
was created in its place and stead a Department of Public 
Parks and Recreation, and all right, title and interest in 
and to all of the property of said Board of Park Commis­
sioners by operation of law evolved upon and became vested 
in the City of Louisville under the administration of the 
said Department of Public Parks and Recreation.

NOW, THEREFORE, in consideration of the premises 
and in mutual agreement between the parties hereto, the 
said agreement of April 19, 1938 and all rights and privi­
leges, thereunder is hereby, extended for a period of five 
years, for which period all of said agreement shall remain 
in full force and effect with the following changed and ex­
ceptions, to which both patries mutually agree:

Subsection (a) of Paragraph 7 of said agreement of 
April 19,1938, shall be amended as follows:

Par. 7. Maintenance and Repair of Premises:
The Department of Public Parks and Recreation

agrees that it will at all times during the life of this

72

Exhibit 2



agreement: (a) Maintain said Amphitheatre in a neat, 
clean and presentable condition. The expense of any 
replacements, maintenance or repairs of equipment, 
appurtenances and physical property shall be decided 
upon by the Department of Public Parks and Recrea­
tion and the Association before such expense is under­
taken;

and said subsection (a) of Paragraph 7 as contained in the 
original agreement shall be stricken therefrom and the 
above substituted in lieu thereof.

Subsection (b) of Paragraph 7 shall be altered by elemi- 
nating in the sixth line, fifth word, the words “ and electric­
ity,” and by adding before paragraph (c) of said paragraph 
7 the following:

The Association to pay all electricity bills from May 1st 
to September 30th in each year contract remains in force, 
so when amended subsection (b) of Paragraph 7 shall read 
as follows:

(b) furnish all water necessary to enable the Asso­
ciation, or any person, firm, or corporation with whom 
the Association may have contracted, to produce the 
entertainments comtemplated by this agreement. The 
Association to pay all electricity bills from May 1st 
to September 30th in each year contract remains in 
force;

Paragraph 8 of the agreement of April 19, 1938, shall be 
amended by striking therefrom the two words “ properly 
surfaced” in the third line, said stricken words being the 
eighth and ninth words in said line of said paragraph.

Otherwise, the said contract is renewed and ratified as 
written.

In Testimony Whereof, the parties have caused their 
respective names to be subscribed, and their corporate seals 
to be affixed hereto, the City of Louisville, by its Mayor and 
the Louisville Park Theatrical Association by its Presi-

73

Exhibit 2

?



dent, all at Louisville, Kentucky, the day and year first 
above written.

City of Louisville,
By Wilson W. Wyatt,

(Seal) Mayor.
Louisville Park Theatrical Association, 

By Geo. Buechel.
(Seal)

74

Exhibit 2

EXHIBIT 3.

AGREEMENT.
THIS AGREEMENT made and entered into this 14th 

day of May, 1947, by and between the City of Louisville, 
Kentucky (hereinafter referred to as The City) and the 
Louisville Park Theatrical Association (hereinafter re­
ferred to as The Association), a corporation with no capital 
stock from whose operations no private pecuniary profit is 
to be derived,

WITNESSETH THAT:
WHEREAS, by an agreement dated March 1, 1943, the 

City leased to the Association for a period of five (5) years 
from said date the premises known as Iroquois Amphithe­
atre, located in Iroquois Park, Louisville, Kentucky, and 
the parties by mutual agreement are desirous of cancelling- 
said lease for the remainder of its terms and are desirous 
of substituting therefor a new agreement for a period of 
five (5) years.

NOW, THEREFORE, in consideration of the premises 
and of the covenants and agreements hereinafter set out, 
the said parties do hereby covenant and agree as follows:

1. The March 1,1943, Contract is hereby cancelled and, 
in lieu thereof, the within Contract is hereby substituted.

2. The City does hereby give and grant to The Associ­
ation an exclusive right and privilege to use said Amphi-



theatre, together with the land, buildings, equipment, and 
appurtenances enclosed within the red lines of the plat at­
tached hereto (hereinafter referred to as the Amphithe­
atre), on such dates between May 1 and September 30 of 
each year, commencing with the calendar year 1947 and 
ending with the calendar year, .1951, as The Association 
may, by a written notice to The City, designate; and agrees 
that it will not lease, or give to any other persons, firm or 
corporation, the right to use said Amphitheatre during said 
period in any of said years, without having first obtained 
the written consent of The Association thereto.

3. The Association shall have the right to use the 
Amphitheatre on any, or all, of said dates, for the purpose 
of rehearsing, and/or presenting, such musical, dramatic, 
operatic, athletic, and other forms of entertainment, both 
amateur and professional, as it may select; for the sale and 
service on such occasions of such food, soft drinks, tobacco, 
cigars, cigarettes, candy, programs, musical scores, etc., as 
are customarily sold or offered for sale in similar places of 
public entertainment and for the rendition of such other 
services as are customarily rendered in such places, and for 
no other purpose.

The Association shall have the right to produce the en­
tertainment, sell and serve the items, and render the serv­
ices aforesaid, itself, or to contract with any other person, 
firm, or corporation, for the production of said items, and 
the rendition of said services or any of them.

4. The Association, or any person, firm or corporation 
with whom The Association has contracted for the produc­
tion of any entertainment at said Amphitheatre, shall have 
the right to charge any person seeking to attend said enter­
tainment such admission fee as may be approved by The 
Association, or any person, firm or corporation with whom 
it has contracted to furnish food, soft drinks, programs, 
musical scores, etc., or to render said services as are cus­
tomarily rendered in connection with such entertainment, 
shall have the right to charge such prices as may be, ap­
proved by The Association. Provided, however, that such 
admission fees and charges shall be reasonable and con­
sistent with the desire of both parties hereto to increase the

75

Exhibit 3



use of Iroquois Park by making the entertainment pre­
sented at said Amphitheatre available to the public at low 
cost.

5. No sign or advertisement shall be erected or affixed 
in, upon, or about the Amphitheatre, except only such signs, 
or advertisements, as may with the approval of the Depart­
ment of Public Parks and Recreation be placed thereon to 
advertise attractions to be presented at said Amphitheatre, 
and as are contained in programs distributed at any per­
formance given in said Amphitheatre, and the Department 
of Public Parks and Recreation may remove, or obliterate, 
any sign, or advertisement, erected or maintained in viola­
tion of this agreement.

6. The City, through the Department of Public Parks 
and Recreation, agrees that it will at all times during the 
life of this agreement:

(A) Maintain the structure and equipment of said 
Amphitheatre in a neat, clean and presentable condition. 
The erection and expense •ef'any structure, structures, re­
placements, maintenance, or repairs of equipment, appurte­
nances and physical property in or connected with the 
Amphitheatre shall be decided upon by the Department of. 
Public Parks and Recreation and the Association jointly 
before such work is undertaken.

(B) Furnish all water necessary to enable The Associ­
ation, or any person, firm or corporation with whom The 
Association may have contracted, to produce the entertain­
ments contemplated by this agreement. The Association 
is to pay all of the electricity bill from May 1 to September 
30 in each year this contract remains in force.

7. The Association shall have the exclusive right to 
select, and agrees to assume responsibility for employing, 
fixing the compensation of, and paying the salaries and 
wages of, all artists, actors, musicians, ticket-takers, ushers, 
stagehands, and other persons employed in connection with 
the presentation of any entertainment produced by, or 
under the auspices of, The Association at said Amphithe­
atre ; and The Association further agrees at its own expense 
to furnish the labor and material necessary to clean up the 
Amphitheatre after each performance given therein by it,

76

Exhibit 3



77

or under its auspices, it being understood and agreed, how­
ever, that The City, through the Department of Public 
Parks and Recreation, shall be responsible for keeping said 
Amphitheatre in a neat and clean condition at all other 
times and shall turn said Amphitheatre over to The Asso­
ciation in that condition a reasonable time before the use 
by The Association as is contemplated by this agreement.

8. The City covenants and agrees that it will provide 
such roads and paths leading to the Amphitheatre, and such 
parking area or areas adjacent to the' Amphitheatre, as 
are reasonable necessary to accommodate the persons desir­
ing to attend entertainments given therein by The Associa­
tion or under its auspices.

9. The Association agrees, on or before the first day of 
January, 1948, and the first day of each year thereafter dur­
ing the life of this agreement, or any extension thereof, to 
furnish The City with a complete written statement of all 
entertainments produced by it, or under its auspices, at said 
Amphitheatre during the preceding season, the scale of ad­
mission fees charged the public attending said entertain­
ments, the number of persons attending same, and such 
other information as may be helpful to The City in deter­
mining whether the operation of said Amphitheatre, under 
the auspices of said Association, has in fact contributed 
materially to the use and enjoyment of the park system by 
the public. At the same time the Association shall furnish 
The City with an audited statement of all monies received 
by it during the preceding season from the sale of admis­
sions, food, soft drinks, candy, programs, program adver­
tising, concessions, subleasing said Amphitheatre, and all 
other sources, arising out of, or on account of, the enter­
tainment presented by it or under its auspices, at said 
Amphitheatre during said season, and of all said expendi­
tures made, or incurred, by The Association in connection 
therewith. Each such annual statement shall complement 
the one for the prior year or years, so that said statements 
cumulatively reflect the results of the operation of said 
Amphitheatre under this agreement.

Upon the termination, by lapse of time, of this agree­
ment (unless it be ‘then extended and, in that event, upon

Exhibit 3



78

the termination of the last extension thereof), the Associa­
tion agrees to pay over to The City such sum, if any, as 
represents the net profit realized from its entire operations 
hereunder. Out of any profits The Association shall have 
the right to repay to the persons contributing to it, the sum 
of Five Thousand Dollars ($5,000.00) furnished by The 
Association to The City in order to make possible the con­
struction of the Amphitheatre, and said sum of Five Thou­
sand Dollars ($5,000.00) shall be considered as an expense 
of The Association in computing any net profit to be turned 
over to the City. Any sums hereafter contributed by the 
general public during any calendar year may be considered 
a debt for that year to be repaid from the proceeds on hand 
fit the end of that year; but no such sums shall be repaid 
from the proceeds of any subsequent year.

10. The City shall, at all times during the life of this 
agreement, have and retain the care, management and cus­
tody of said Amphitheatre, and all equipment and appur­
tenances thereto belonging, and the right to make, or au­
thorize, any use thereof which is not inconsistent with, and 
does not interfere with, the enjoyment by The Association 
and its premises of the rights and privileges herein con­
ferred on The Association; provided, however, that The 
City shall not lease said Amphitheatre to any other person, 
firm, association, or corporation, between May 1 and Sep­
tember 30 of any year during the life of this agreement for 
the purpose of producing an entertainment therein, for the 
privilege of attending which an admission fee will be 
charged, or from which it is expected that any pecuniary 
profit will be derived, unless said persons, firms, associa­
tions, or corporations shall have first sought to sub-lease 
said Amphitheatre from The Association and have offered 
to pay The Association the regular rental then being 
charged or charged by The Association to other sublesses, 
or prospective sublesses, of said Amphitheatre, and The 
Association shall have wilfully and arbitrarily refused to 
sublease said Amphitheatre to said person, firm, association, 
or corporation, in which case The City shall have the right 
to require The Association to execute such sublease.

Exhibit 3



11. The City shall at all times have the right to make 
and enforce snch reasonable rules and regulations as it 
deems necessary for the preservation of said Amphitheatre 
and the equipment and appurtenances thereto belonging, 
and for the preservation of good order therein, and shall 
have the right to prohibit the production at said Amphi­
theatre of any entertainment which is, in the opinion of 
The City, through its Department of Public Parks and 
Becreation, indecent or immoral or calculated to create or 
incite racial or religious antagonism or a disturbance of the 
public peace.

12. If, at any time during the term of this agreement, 
the Legislative-Body of The City determines that the opera­
tion of the Amphitheatre under this agreement is not to the 
best interest of the public, this agreement may be termi­
nated by proper resolution.

In Testimony Whereof, the parties have caused their 
corporate names to be affixed hereto, The City of Louisville 
by its Mayor and the Louisville Park Theatrical Association 
by its President, all of Louisville, Kentucky, the day and 
year first above mentioned.

City of Louisville,
By E. Leland Taylor,

Mayor.
Louisville Park Theatrical Association, 

By James W. Henning,
President.

79

Exhibit 3

•i»



80

REASONS AND GROUNDS FOR APPEAL—Filed 
June 25,1952.

Now comes James W. Muir, plaintiff and appellant of 
record herein, by counsel, and sets forth the following as his 
reasons and grounds of appeal and designates same as his 
points on which he intends to rely on this appeal:

1. That the Court erred in dismissing the complaint of 
the appellant against the Louisville Park Theatrical Associ­
ation, Inc., on the grounds that the action of the said de­
fendant below, in denying admission to Iroquois Amphithe­
atre to appellant, was not “state action” within the meaning 
and prohibitions of the Fourteenth Amendment to the 
United States Constitution.

2. That the Court erred in concluding that during the 
years 1947 through 1951 the Louisville Park Theatrical 
Association, InCi, has had the exclusive use of the Amphi­
theatre during the following periods:

In 1947, July first through August tenth 
In 1948, July fifth through August fourteenth 
In 1949, July eleventh through August twenty-first 
In 1950, July tenth through August sixth, and 
In 1951, July sixth through August nineteenth,

and in determining that the Louisville Park Theatrical 
Association, Inc. has not had the exclusive use of the Amphi­
theatre during said years from May 1 to September 30 of 
each said year.

3. That the Court erred in concluding that there has 
been no discrimination against this appellant by the Louis­
ville Park Theatrical Association, Inc., acting on behalf of 
the City of Louisville when neither appellant nor any organ­
ization to which he belongs has sought to secure possession 
of the Amphitheatre for the purpose of providing therein 
entertainment procured and paid for by them without cost 
or expense to the City of Louisville.

4. That the Court erred in determining that the Louis­
ville Park Theatrical Association, Inc. was not obligated to 
admit this appellant to the Amphitheatre under the terms



81

Reasons and Grounds for Appeal
of the contract of leasing between the City of Louisville 
and the Louisville Park Theatrical Association, Inc.

5. That the Court erred in determining that segrega­
tion of the races enforced in the use of the Iroquois Amphi­
theatre does not violate the Fourteenth Amendment of the 
United States Constitution.

Benjamin F. Shobe, 
Counsel for Appellant.

(A copy has been forwarded to Donald Q. Taylor, Coun­
sel for Appellee, this 25th day of June, 1952.)

STIPULATIONS AS TO CONTENTS OP RECORD 
ON APPEAL—Filed June 25, 1952.

Comes the parties hereto, James W. Muir, Appellant, 
and Louisville Park Theatrical Association, Inc., Appellee, 
by Counsel, and stipulate and agree that the record on ap­
peal shall contain the following portions of the record in 
the District Court:

1. The Complaint.
2. Louisville Park Theatrical Association’s Motion to 

Dismiss.
3. Order dismissing Complaint as to Loiusville Park 

Theatrical Association.
4. Order of Court granting time to file amended Com­

plaint.
5. Appellant’s Amended Complaint.
6. Louisville Park Theatrical Association’s Motion to 

Dismiss Amended Complaint.
7. Order overruling Motion to Dismiss Amended Com­

plaint.
8. Answer of A_ppellee, Louisville Park Theatrical As­

sociation, Inc.



82

Stipulations as to Contents of Record
9. Stipulation between James W. Muir and Louisville 

Park Theatrical Association, Inc., filed in Open 
Court August 6,1951.

10. Pages One through Thirty-two of the transcript of 
evidence heard August 6, 1951, including Exhibits 
Number 1 and Number 2 referred to therein.

11. The Court’s Memorandum.
12. Judgment.
13. Notice of Appeal.
14. Bond.
15. This stipulation.
16. Reasons and Grounds for Appeal.

Benjamin F. Shobe,
Counsel for Appellant, James W. Muir. 

Donald Q;. Taylor,
Counsel for Appellee, Louisville Park 

Theatrical Association, Inc.

CLERK’S CERTIFICATE.

I, W. T. Beckham, Clerk of the United States District 
Court for the Western District of Kentucky, certify that 
the foregoing is a true copy of the record of proceedings 
had in this Court, as appears of record in my office and in 
accordance with the Designation of Record on Appeal filed 
February 20,1952.

(Seal)

Clerk, United States District Court, 
Western District of Kentucky.



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