City of Birmingham v. Monk Transcript of Record

    TRANSCRIPT OF RECORD.

U N I T E D  S T A T E S

C O U R T  OF A P P E A L S
FIFTH CIRCUIT.

TS! o* JL *3 § 1 *5

CITY OF BIRMINGHAM, ET AL.,

versus
Appellants,

MARY MEANS MONK, ET AL.,

Appellees.

Appeal from the United States District Court for the 
Northern District of Alabama.

(ORIGINAL RECORD RECEIVED MAR. 9/50.)



INDEX.
PAGE

Complaint and Application of Plaintiffs for a Pre­
liminary Injunction ................................  1

Exhibit “A”—Ordinance No. 709-F, adopted by 
the Commission of the City of Birmingham
at its Meeting held 8/9 /49 .........................  9

Exhibit “B”—General City Code .......................  12

Order dated 9/28/49 setting Application for a Pre­
liminary Injunction for hearing on 10/27/49 15

Motion of Defendants to Dismiss for Lack of Juris­
diction ................................................................  16

Answer of Defendants to Complaint.........................  19

TRANSCRIPT OF EVIDENCE................................. 31
Statements made by Mr. Wilkinson, Counsel for

Defendants ................................................  32
Request of Defendants for a continuance .........  38
Statement made by Mr. Shores, Counsel for

Plaintiffs .................................................... 39
Statement made by Mr. Huey, Counsel for De­

fendants .....................................................  40
, Further Statement made by Mr. Wilkinson, Coun­

sel for Defendants .................................... 42
Order Overruling Defendant’s request for Con­

tinuance and Exception thereto ................. 46
Statement made by Defendant, H. E. Hagood . . .  47
Joint Stipulation of Counsel relative to Testimony

of H. E. Hagood .......................................  48
Colloquy between Court and Counsel.................. 49



II

INDEX—Continued
PAGE

Transcript of Evidence—(Continued):
Evidence for Plaintiffs:

Testimony of Mary Means M onk................  53
Exhibit Plaintiffs’ # 1 —Deed Mary

Monk’s Property, dated 7/22/49 . . 55
Testimony of George W. Pearson................  65

Howard William McElrath . . .  67
L. S. Gilliard .......................  70
Louis D rake........................... 72
Jobie Herbert .......................  75
Ulysses S. T e rry .................... 76
A. F. Jackson .......................  76
Emily Madison ...................... 77
George R. Byrum, J r ............  78
James W. Morgan..................  91

Exhibit Plaintiffs’ # 2 —Ordinance 709- 
F, adopted by the Commission of 
the City of Birmingham at its 
Meeting held 8/9/49 (Omitted) .. 105

Evidence for Defendants:
Testimony of N. L. Thompson.....................  105

Exhibit Defendants’ # 3 —Telegram, J. J. 
Green, Chairman, Executive Com­
mittee, Birmingham Branch, NA- 
ACP to Hon. A. A. Carmichael,
State Attorney General, dated 8/-
13/49 ............................................. 108

Exhibit Defendants’ #4—-Telegram, J. J. 
Green, Chairman, Executive Com­
mittee, Birmingham Branch, NA- 
ACP to “President Truman”, 
dated 8/13/49 ..............................  109



I l l

INDEX—Continued

Transcript of Evidence—-(Continued):
Evidence for Defendants—(Continued):

Testimony of N. L. Thompson— (Cont’d): 
Exhibit Defendants’ # 5—-Telegram, J. J. 

Green, Chairman, Executive Com­
mittee to Hon. Eugene (Bull) 
Connor, Commissioner of Public
Safety, dated 8/13/49..................

Exhibit Defendants’ # 6—Telegram, J. J. 
Green, Chairman, Executive Com­
mittee to Attorney General Tom 
Clark, Dept, of Justice, Washing­
ton, D. C., dated 8/13/49............

Exhibit Defendants’ # 1—Telegram, J. J. 
Green, Chairman, Executive Com­
mittee, to Hon. Jimmy Morgan, 
Commissioner of Public Improve­
ment, undated..............................

Exhibit Defendants’ #8—Telegram, J. J. 
Green, Chairman, Executive Com­
mittee, to Hon. Cooper Green, 
President, City Commission, dated
8/13/49 .........................................

Exhibit Defendants’ # 9—Telegram, J. J. 
Green, Chairman, Executive Com­
mittee to Sheriff Holt McDowell,
dated 8/13/49 ...............................

Exhibit Defendants’ #10  — Telegram, 
Emory O. Jackson, Executive 
Secretary, Birmingham Branch of 
NAACP, to Hon. William T. 
Byrne, dated 6/23/49 ..................

PAGE

111

111

112

113

114

115



IV

INDEX—Continued

Transcript of Evidence—(Continued):
Evidence for Defendants—(Continued):

Testimony of N. L. Thompson— (Cont’d): 
Exhibit Defendants’ #  11 — Telegram, 

Emory O, Jackson, Executive 
Secretary, to Walter White, dated
6/23/49 .........................................

Exhibit Defendants’ #12—Telegram, A, 
C. Maclin, President, National As­
sociation for the Advancement of 
Colored People to Hon. Eugene
Connor, dated 6 /2 /49 ............

Exhibit Defendants’ #13—Telegram, A. 
C. Maclin, President, Birmingham 
Branch, NAACP to Chief Floyd
Eddins, dated 6/2/49 ..................

Exhibit Defendants’ #14 — Telegram, 
Emory O. Jackson, Executive 
Secretary, to Tom C. Clark, Atty. 
General, Dept, of Justice, dated
5/23/49 .........................................

Exhibit Defendants’ #15—Telegram, A. 
C. Maclin, President, Birmingham 
Branch of NAACP to “President 
Harry S. Truman”, dated 6/2/49

Testimony of E. A. Camp, J r ........................
W. Cooper Green ..................

Exhibit Defendants’ #  16—Report pre­
pared by Cooper Green to the citi­
zens of Birmingham of the con­
dition of affairs, etc....................

PAGE

115

116 

117

117

118

120
124

128



V

INDEX—Continued
PAGE

Transcript of Evidence—(Continued):
Evidence for Defendants—(Continued):

Testimony of E. A. Camp, Jr.—(Continued): 
Exhibit Defendants’ #17—Tax Report of

the City of Birmingham............  139
Photostat of Chart showing the 

source of The City’s Revenues
for all Current Funds, etc........  141

Photostat of Chart showing the 
purpose for which those Expen­
ditures were made ...................  142

Testimony of A. Key F oster......................  162
V. L. Adams........................... 171
D. M. C a r r ............................. 177
W. E. H enley.........................  178

Exhibit Defendants’ #18—Excerpts from
Stenographic Report of the Negro 
Mass Meeting, held on 8/17/49 . .. 185

Testimony of H. B. Hanson, J r .................... 188
Eugene Connor .....................  203
C. Floyd Eddins.....................  210

Exhibit Defendants’ #19—Schedule of 
various Police Dept.’s Budgets 
showing number of police in the 
Dept...............................................  212

Testimony of Eugene Connor (Recalled) . . . .  216

Exhibit Defendants’ #20—Record in Case 
Mary Means Monk vs. James W. Mor­
gan, et al., Ala. State Court No. 19712 
X ........................................................ 221



VI

INDEX—Continued
PAGE

Transcript of Evidence—(Continued):
Evidence for Defendants—(Continued):

Exhibit Defendants’ #20—(Continued):
Petition for Mandamus and Sheriff’s Re­

turn thereon ................................  222
Order that Alternative Writ of Manda­

mus issue .....................................  226
Alternative Writ of Mandamus, issued

8/4/49 ........................................... 227
Alternative Writ of Mandamus, issued 

to James W. Morgan, et al., on
8/4/49 ........................................... 227

Answer of Defendants ........................... 229
Demurrer of Mary Means Monk to An­

swer of Defendants, etc................. 237
Judgment, entered 8/22/49 .................... 238

Testimony of T. E. Huey, J r .......................... 241
Eugene Connor (Recalled) .. 244

Statement made by the C ourt............................   246
Opinion of the Court, entered 12/16/49 .................... 249
Final Judgment, entered 12/16/49 ...........................  263
Supplemental Opinion, entered 12/19/49 ..................  265
Order dated 1/17/50 extending time to 1/21/50 for

appealing in Appellate C ourt........................... 266
Notice of Appeal .......................................................  267
Assignments of E rro r ..................................................  268
Joint Stipulation of Counsel relative to Transmitting 

Original Exhibits to U. S. Court of Appeals and
approval of Court thereon ..............................  277

Appellants’ Designation of Contents of Record on
Appeal ..............................................................  278

Clerk’s Certificate.......................................................  279



COMPLAINT.

Filed September 28, 1949.

IN THE DISTRICT COURT OF THE UNITED STATES 
FOR THE SOUTHERN DIVISION OF THE NORTH­
ERN DISTRICT OF ALABAMA.

MARY MEANS MONK, A. F. JACKSON & PEARL 
JACKSON: JOHNNIE MADISON & EMILY MADI­
SON: H. L. LEMON & CORINE LEMON: T. T. 
COLE, JOBIE HERBERT & LOUIS DRAKE: H. W. 
McELRATH: P. E. EVANS: ULYSSES TERRY AND 
BOOKER T. WASHINGTON INSURANCE COM­
PANY, A CORPORATION, WARREN BILLINGS & 
LUCY C. BILLINGS,

Plaintiffs,

Versus

CITY OF BIRMINGHAM, A MUNICIPAL CORPORA­
TION, JAMES W. MORGAN AND H. E. HAGOOD,

Defendants.

CIVIL ACTION No. 6382.

Now come the plaintiffs suing in behalf of themselves 
and others similarly situated, negro citizens, residents and 
taxpayers of the City of Birmingham, and respectfully 
show unto the Court as follows:

1. The action aries under the Fourteenth Amendment 
to the United States Constitution and under Judicial Code 
24 (1) (25 U. S. C. A. Section 41 (1). The matter in con­
troversy exceeds, exclusively of interest and costs, the sum 
of three thousand ($3,000.00) dollars.



2

2. Plaintiffs further show that this is a proceeding for 
an injunction under Section 244D of the Judicial Code and 
for a declaratory judgment for the purpose of determining 
a question of actual controversy between parties to-wit: 
The question of whether the defendant in enacting and en­
forcing Section 709F, 1604 and 1605 of the General Code 
of the City of Birmingham, Alabama, designated as plain­
tiffs’ Exhibit A and B respectfully and hereto attached and 
made a part of this complaint, by which plaintiffs are pre­
vented from constructing residences upon, and occupying 
real property, which they now own, solely because of their 
race and color, is unconstitutional and void, being in vio­
lation of the Fourteenth Amendment to the United States 
Constitution and laws of the United States, viz. Title 8 
Sections 41 - 42 U. S. C.

Plaintiffs show further that this is a proceeding for a Pre­
liminary Injunction under Section 266 of the Judicial Code 
for the purpose of preventing immediate and irreparable 
injury, loss or damages to your plaintiffs before a hearing 
is had thereon, and to maintain the subject of controversy 
in status quo until the hearing of an application for an in­
junction.

3. All parties to this action, both plaintiffs and defend­
ants are citizens of the United States. That this is a class 
action authorized by Rule 23 (a) of the Rules of Civil Pro­
cedure for the District Courts of the United States. The 
rights involved are common and general interest to the 
members of the class represented by the plaintiffs, name­
ly, negro citizens of the United States and residents and 
citizens of the State of Alabama, and the City of Birming­
ham, who own real property, and are denied the right to 
occupy, enjoy and dispose of their real property. Mem­
bers of this class are so numerous as to make it imprac-



3

ticable to bring them all before the Court and for this rea­
son plaintiffs prosecute this action in their own behalf and 
in behalf of the class without specifically naming the said 
members herein.

4. All plaintiffs to this action are colored persons of 
African descent and negro blood and own the hereinafter 
described property, all located in the City of Birmingham, 
Jefferson County, Alabama, as follows:

Mary Means Monk:
The north 42 feet of the south 107% feet of Lots one, 

two and three (1, 2 and 3) in Block 37, together with the 
South 42% feet of the North 92% feet of Lots one (1) and 
two (2) in Block 37, according to Dr. Joseph R. Smith’s 
Addition to Birmingham, called Smithfield, North, as re­
corded in Map Book 1, page 149, in the Office of the Judge 
of Probate of Jefferson County, Alabama.

A. F. Jackson and Pearl Jackson:
Lots one, two and three (1, 2 and 3), Block 47, North 

Smithfield Survey.

Johnnie Madison and Emily Madison:
Lot eight (8), Block 39 North, according to Dr. Joseph 

R. Smith’s Addition to Birmingham, called Smithfield, as 
recorded in Map Book 1, page 149, in the City of Birming­
ham, Jefferson County, Alabama.

H. L. Lemon and Corine Lemon:
Lots eleven (11) and twelve (12), Block 38, according to 

Dr. Joseph R. Smith’s Addition to Birmingham, called 
Smithfield.



4

T. T. Cole, Jobie Herbert & Louis Drake:
Lots fifteen (15) and sixteen (16), Block 37, according 

to Dr. Joseph R. Smith’s Addition to Birmingham, called 
Smithfield.

H. W. McElrath:
North one-half of Lots 13, 14, 15 and 16, in Block 40, 

according to Dr. Joseph R. Smith’s Addition to Birming­
ham, called Smithfield.

P. E. Evans:
South 100 feet of Lots 15 and 16, Block 39, according to 

Dr. Joseph R. Smith’s Addition to Birmingham, called 
Smithfield.

Ulysses Terry:
South seventy-five (75) feet of Lots 1, 2 and 3, Block 

39, according to Dr. Joseph R. Smith’s Addition to Birm­
ingham, called Smithfield.

Booker T. Washington Insurance Company, a corporation: 
South fifty (50) feet of Lots 14, 15 and 16, Block 40, 

according to Dr. Joseph R. Smith’s Addition to Birming­
ham, called Smithfield.

Warren Billings and Lucy C. Billings:
Lots 11, 12, 13 and 14 in Block 39, North, according to 

Dr. Joseph R. Smith’s Addition to Birmingham, called 
Smithfield.

That all of said property, above described, is subjected 
to Ordinances 709F, 1604 and 1605 of General City Code of 
Birmingham, and zoned for white persons.



5

5. Plaintiffs further allege that at the time they pur­
chased said property it was zoned in such manner that 
they could not build and occupy the completed building as 
a residence without violating the laws of the City of Birm­
ingham, namely, Sections 709F, 1604 and 1605 of the Code 
of Birmingham, which were enacted by the City of Birm­
ingham, acting under the authority conferred upon it by 
the State of Alabama (Ala. Code 1940, Title 62, Sections 
654 and 710). They further say that the property is still 
zoned to this date in such a manner that they would vio­
late the City Ordinance, were they to complete their resi­
dences and occupy said premises. That they are threat­
ened with arrest, fine and imprisonment.

6. That plaintiff, Mary Means Monk, prior to filing 
this complaint had plans and specifications drawn to build 
a house on the above described property, all in conformity 
with the City Building Code of Birmingham, Alabama; 
that said plans and specifications, along with an application 
for a permit to build, were submitted to the respondents, 
H. E. Hagood, in his official capacity, which plans, specifi­
cations and application were approved by respondent, H. 
E. Hagood.

7. That although the defendant, H. E. Hagood, whose 
duty it is to issue a building permit on approval of plans, 
specifications and application to build; and not withstand­
ing his approval of plaintiff, Mary Means Monk’s applica­
tion, he refused to issue said permit, stating that he would 
have to get the approval of his superior officer, defendant, 
James W. Morgan, since said property was zoned for white 
persons.

8. That defendant, H. E. Hagood, stated to petitioner 
that it would be perfectly agreeable to begin building, as



6

he was sure that he would issue the permit within a few 
days, on return of his Superior, who was then out of town.

9. That relying upon the representations of defendant, 
and upon his legal right, your plaintiff employed a build­
ing contractor and signed a contract to erect said residence 
for plaintiff, Mary Means Monk, expended large sums of 
money; that said contractor has purchased building mate­
rial, begun excavations for the foundation, as well as ex­
pended other sums pursuant to his contract with plaintiff, 
Mary Means Monk.

10. That on return of defendant, Commissioner Mor­
gan, plaintiff, Mary Means Monk, again requested the issu­
ance of a permit to build, from both defendants Morgan 
and Hagood; that although your plaintiff, Mary Means 
Monk, has complied with all of the rules and regulations 
of the City of Birmingham and stand ready and willing to 
pay the necessary fees for said permit, defendants have 
refused and still refuse to issue said permit, because plain­
tiff, Mary Means Monk is a member of the negro race and 
said property is zoned for members of the white race.

11. Plaintiffs further allege that Ordinances 709F, 1604 
and 1605 of the General Code of Birmingham 1944, which 
deny to plaintiffs and others similarly situated, the right 
to occupy, enjoy and dispose of their property, are illegal 
and violate the Fourteenth Amendment of the Constitu­
tion of the United States and Sections 41 and 42 of Title 
8 of the United States Code.

12. Plaintiffs further show that unless they can obtain 
some early relief from this Honorable Court, that the pres­
ent classification of said property is tantamount to a con­
fiscation of plaintiffs’ property.



7

Plaintiffs further aver that the issuance of a preliminary 
injunction herein will not cause undue inconvenience or 
loss to defendants, but will prevent irreparable injury to 
plaintiffs.

13. Plaintiffs, and others similarly situated, show that 
they have suffered irreparable injury in the past, are suf­
fering at present and are threatened with irreparable in­
jury in the future, by reason of the acts herein complained 
of; that they have no plain adequate remedy at law to re­
dress the wrongs and illegal acts herein complained of, 
other than for a declaration of rights for a temporary in­
junction and a permanent injunction. Any other remedy 
to which plaintiffs could be remitted would be attended 
by such uncertainties and delays as to further irreparable 
injury, further damages and further inconveniences to the 
plaintiffs and those similarly situated.

There is between the parties an actual controversy as 
hereinbefore set forth.

Wherefore, the plaintiffs respectfully pray the Court 
that Your Honor will take jurisdiction of this cause and 
that summons be issued to the City of Birmingham, James 
W. Morgan, and H. E. Hagood, requiring them to plead, 
answer or appear, to the Bill of Complaint herein, within 
the time prescribed by law and that they be made party 
defendants to this complaint.

1. That upon notice to the defendants, and after a hear­
ing, the Court issue a preliminary injunction enjoining the 
defendants, J. W. Morgan, H. E. Hagood and the City of 
Birmingham, its agents, servants, employees and attorneys, 
and all persons in active concert and participation with 
the City of Birmingham, pending the final hearing and 
determination of this action, from doing any act which 
would prevent these plaintiffs from building upon and oc-



8

cupying their property, and from enforcing 709F, 1604 and 
1605 of the General Code of Birmingham.

2. That upon a final hearing, this Court issue a perma­
nent injunction forever restraining and enjoining the de­
fendants from enforcing the said Ordinances 709F, 1604 
and 1605 of the General Code of Birmingham, 1944.

3. That the Court adjudge and decree and declare the 
rights and legal relations of the parties to the subject mat­
ter here in controversy, in order that such declaration shall 
have the force and effect of a final judgment.

4. That the Court enter a judgment or decree declaring 
Ordinances Nos. 709F, 1604 and 1605 of the General Code 
of Birmingham, is a denial of the equal protection of the 
law, as guaranteed by the Fourteenth Amendment of the 
United States Constitution and Sections 41 and 42 of Title 
8 of United States Code, and is therefore unconstitutional 
and void.

5. Plaintiffs further pray that this Court will allow 
them their costs herein and such other, further or alterna­
tive relief to which the Court feels that these plaintiffs are 
entitled and to which may appear to the Court to be equi­
table and just.

Plaintiffs further pray the Court that the City of Birm­
ingham be enjoined and restrained from refusing to issue 
to plaintiffs a building permit for the erection of plaintiff’s 
residence.

ARTHUR D. SHORES,
PETER A. HALL,
DAVID H. HOOD, JR.,

Attorneys for Plaintiffs.
Law Offices of

Arthur D. Shores,
1630 4th Avenue, North,

Birmingham, Alabama.



9

State of Alabama,
Jefferson County.

Before me, the undersigned authority, for and in the 
said County and State, personally appeared Arthur D. 
Shores, who being by me first duly sworn deposes and 
says that he is one of the attorneys for plaintiffs in the 
above proceeding and that he is conversant with the facts 
alleged in the foregoing petition and that the same are true 
to the best of his knowledge and belief.

ARTHUR D. SHORES.

Sworn to and subscribed before me this the 16th day of 
September, 1949.

AGNES N. STUDEMIRE, 
(Seal) Notary Public.

PLAINTIFFS’ EXHIBIT A.

Ordinance No. 709-F.

Be It Ordained by the Commission of the City of Birm­
ingham that:

Section 1. The Commission finds as a matter of fact 
that:

(a) From the date of the original settlement of this 
City unto the present time it has been the invariable cus­
tom, supported for most of that time by municipal law 
and universally observed, to require white and colored 
residents to live in separate residential areas; and



10

(b) That when attempts have been made by members 
of one race to enter for purposes of a permanent residence 
into an area commonly recognized as set aside for mem­
bers of the other race, violence, disturbances of the peace, 
destruction of property and life has resulted almost with­
out exception; and

(c) This Commission further finds from its knowledge 
of present conditions and public sentiment in this City 
that in the event attempts shall now or in the foreseeable 
future be made by members of one race to establish resi­
dences in areas heretofore regarded as set apart for the 
residence of members of the other race, breaches of the 
peace, riots, destruction of property and life will follow; 
and

(d) That neither the City of Birmingham nor any other 
law enforcement agency is able so completely to police, 
supervise and safeguard the person and property of per­
sons attempting to establish a residence in an area not 
commonly recognized as an area to be occupied by mem­
bers of the race to which such person belongs, as to prevent 
injury to such persons, members of his family, third par­
ties in the area affected, and destruction of property; and

(e) That the Zoning ordinances of the City of Birm­
ingham now in effect do substantially and fairly well de­
lineate those areas historically and generally regarded as 
available for residences and occupation by members of the 
white and colored races; and

(f) That this ordinance is necessary to preserve the 
peace of said City and to safeguard the property and safety 
of its citizens and of the public in general.



11

Now, Therefore, Be It Further Ordained:

Section 2. That it shall be a misdemeanor for a mem­
ber of the white race to move into, for the purpose of es­
tablishing a permanent residence, or, having moved into, 
to continue to reside in an area in the City of Birmingham 
generally and historically recognized at the time as an area 
for occupancy by members of the colored race; and

Section 3. That it shall be a misdemeanor for a mem­
ber of the colored race to move into, for the purpose of es­
tablishing a permanent residence, or having moved into, 
to continue to reside in an area in the City of Birmingham 
generally and historically recognized at the time as an 
area for occupancy by members of the white race.

Section 4. The words “permanent residence” as used 
herein shall be construed as meaning the occupancy of a 
house or tenement for more than twenty-four hours, ex­
cept a house or tenement which is appurtenant to, used in 
connection with, and a part of the curtilage of another 
house or tenement and occupied by a person who shall be 
in the employ of the person occupying the residence or 
tenement to which it is appurtenant.

Section 5. The moving into for the purpose of establish­
ing a permanent residence shall constitute a separate of­
fense from remaining there, and remaining in residence in 
a forbidden area for each twenty-four hour period shall 
constitute a separate offense.

Section 6. This Ordinance shall take effect immediately, 
the public welfare requiring.

* * * * * * * *



12

PLAINTIFFS’ EXHIBIT “B”.

General City Code

Section 1604. Occupancy in “A-l” and “B-l” residence 
districts.

In “A-l” and “B-l” residence districts, no building or 
part thereof shall be occupied or used by a person of the 
negro race, provided, however, that this section shall not 
be interpreted to prohibit any of the following:

(a) Use or occupancy by a negro servant, chauffeur or 
other employee, when the employer resides in the same 
building or in a building upon the same lot.

(b) Use or occupancy by any person, who, on August 
4, 1926, was the owner of the used or occupied building or 
of the lot upon which such building may be erected, or 
who at said time shall have contracted to purchase the 
same by a valid and enforceable contract of purchase, or 
by his successor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence of, in or on the 
building or lot.

(d) Use of occupancy during the period of the tenancy 
or lease by a life tenant, leases for a term of years or other 
lessee of the used or occupied building or lot, such tenant 
or lessee being of the negro race, or by the successor in 
title of any such lessee by will or descent, in cases in which 
the tenancy or lease was created before August 4, 1926, 
and is unexpired and in force and effect.



13

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension or renewal of 
any such lease, in cases in which the right of renewal or 
extension was created previous to, and was in force and 
effect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (6) at any or all times at 
which both the tenancy, lease, renewal or extension de­
scribed in paragraph (d) and (e) shall be in full force and 
effect, and said person himself resides in or on the build 
ing or lot.

(g) Continuance, after August 4, 1926, of the residen­
tial use or occupancy of a building by persons of the negro 
race, in any case in which such building was used or occu­
pied for residential purposes by persons of the negro race 
prior to August 4, 1926, or, if such building was vacant at 
said time, then in any case in which the last such use or 
occupancy previous to said time was by persons of the 
Negro race (Ord. 1101-C S 9).

Section 1605, Occupancy in “A-2” and “B-2” residence 
districts.

In “A-2” and “B-2” residence districts, no building or 
part thereof shall be occupied by or used by a person of the 
white race, provided, however, that this section shall not 
be interpreted to prohibit any of the following:

(a) Use or occupancy by a white servant, chauffeur or 
other employee, when the employer resides in the same 
building or in a building upon the same lot.



14

(b) Use or occupancy by any person, who, on August 
4, 1926, was the owner of the used or occupied building or 
of the lot upon which such building may be erected, or who 
at said time shall have contracted to purchase the same by 
a valid and enforceable contract of purchase, or by his 
successor in title by will or descent.

(c) Use or occupancy by a member of the immediate 
family, or servant, lodger, boarder, lessee or tenant of any 
person described in paragraph (b) at any or all times dur­
ing his concurrent ownership and residence in or on the 
building or lot.

(d) Use or occupancy during the period of the tenancy 
or lease, by a life tenant, lessee for a term of years or 
other lessee, of the used or occupied building or lot, such 
tenant or lessee being of the white race, or by the suc­
cessor in title of any such lessee by will or descent, in cases 
in which the tenancy or lease was created before August 
4, 1927, and was unexpired and in force and effect at said 
time.

(e) Use or occupancy by a person described in para­
graph (d) during the period of an extension or renewal of 
any such lease, in cases in which the right of renewal or 
extension was created preivous to and was in force and 
effect on August 4, 1926.

(f) Use or occupancy by a member of the immediate 
family or servant, lodger, lessee or tenant of any person 
described in paragraph (d) at any or all times at which 
both the tenancy lease, renewal or extension described in 
paragraphs (d) and (e) shall be in full force and effect, 
and said person himself resides in or on the building or lot.



15

(g) Continuance, after August 4, 192o, of the residen­
tial use or occupancy of a building by persons of the white 
race, in any case in which such building is used or occu­
pied for residential purposes by persons of the white race, 
or if such building was vacant at said time, then in any 
case in which the last use or occupancy previous to said 
time was by persons of the white race.

(Ord. 1101 - C S 10.)

ORDER.

Upon consideration of the foregoing verified Bill of Com­
plaint the plaintiffs’ application for a Preliminary Injunc­
tion, as prayed for therein, it is Ordered that the plain­
tiffs’ application for a Preliminary Injunction be and the 
same is hereby set for hearing at the United States Court 
House in Jefferson County, Alabama, on the 27th day of 
October, 1949, at ten o’clock A. M., and that a copy of this 
Order, together with a copy of the Bill of Complaint, be 
forthwith served upon the defendant, City of Birmingham, 
James W. Morgan and H. E. Hagood, and that they be and 
are hereby notified to appear before this Court at said 
time and place and show cause, if any there be, why this 
preliminary injunction, as prayed for in the Bill of Com­
plaint, should not issue as prayed for therein.

This the 28th day of September, 1949.
CLARENCE MULLINS,

United States District Judge.



16

MOTION TO DISMISS.

Filed October 21, 1949.

(Title Omitted.)

The defendants move the Court as follows-

1. To dismiss the action because the complaint fails to 
state a claim against defendants upon which relief can be 
granted.

2. To dismiss the action because the Court lacks juris­
diction of the subject matter of the suit.

3. To dismiss the action because the plaintiffs named 
in the complaint are improperly joined as plaintiffs.

4. To dismiss the action because the complaint fails to 
allege facts sufficient to constitute this action a class action 
as authorized by Rule 23 (a) of the Rules of Civil Pro­
cedure for the District Courts of the United States.

5. To dismiss the action because it affirmatively ap­
pears that the action is not properly brought as a class 
action as authorized by Rule 23 (a) of the Rules of Civil 
Procedure for the District Courts of the United States.

6. To dismiss the action because it affirmatively ap­
pears that plaintiffs do not have a common interest as 
required by Rule 23 (a) of the Rules of Civil Procedure 
for the District Courts of the United States in class ac­
tions.



17

7. To dismiss the action because it affirmatively ap­
pears from the allegations of the complaint that the plain­
tiff, Mary Means Monk, is the only plaintiff who has ap­
plied for a building permit from the defendant, H. E. Ha- 
good, and that the said Mary Means Monk is the only 
plaintiff who has been denied such a building permit.

8. To dismiss the action because it affirmatively ap­
pears from the allegations of the complaint that the only 
subject matter of this action is the alleged refusal of de­
fendants to grant a building permit to plaintiff, Mary 
Means Monk, and it further appears from said allegations 
that the other plaintiffs have no common interest with 
said plaintiff, Mary Means Monk, and that the members of 
the alleged class have no common interest with said plain­
tiff, Mary Means Monk.

9. To dismiss the action because the complaint does 
not allege on what charge the plaintiffs are threatened 
with arrest, fine and imprisonment.

10. To dismiss the action because the complaint does 
not allege that the zoning ordinances of the City of Birm­
ingham fail to provide persons of the negro race with 
residential areas within the City of Birmingham equal to 
the residential areas provided by such zoning ordinances 
for persons of the white race.

11. To dismiss the action because the complaint does 
not allege facts showing that the areas set aside and zoned 
by the zoning ordinances of the City of Birmingham for 
use and occupancy for residential purposes by persons of 
the negro race are not equal in all respects to the areas set 
aside and zoned by said ordinances for use and occupancy 
for residential purposes by persons of the white race.



18

12. To dismiss the action because the complaint does 
not allege facts showing that under the zoning ordinances 
of the City of Birmingham persons of the negro race are 
not provided with sufficient and adequate residential areas 
in said City of Birmingham.

13. To dismiss the action because the complaint does 
not allege facts showing that the zoning ordinances of the 
City of Birmingham unlawfully discriminate as between 
persons of the negro race and persons of the white race.

14. To dismiss the action because the complaint affirm­
atively shows that the zoning ordinances of the City of 
Birmingham were duly adopted under the police power of 
the State of Alabama, as said police power has been dele­
gated to said City of Birmingham, and that said zoning 
ordinances are valid exercises of said police power.

THOMAS E. HUEY, JR., 
Attorney for Defendants.

317 City Hall,
Birmingham, Alabama.

I hereby certify that I have, on this the 21st day of Octo­
ber, 1949, mailed a copy of the above and foregoing Mo­
tion to Dismiss to Arthur D. Shores, Attorney for Plain­
tiffs, 1630 Fourth Avenue, North, Birmingham, Alabama.

THOMAS E. HUEY, JR., 
Attorney for Defendants.

317 City Hall,
Birmingham, Alabama.



19

ANSWER OF THE DEFENDANTS.

Filed December 12, 1949.

(Title Omitted.)

Now come each of the defendants in the above styled 
cause, separately and severally, and for answer to the 
complaint, each of them, separately and severally, says:

(1) These defendants are not in a position to admit or 
deny that the plaintiffs are negro residents and taxpayers 
of the City of Birmingham, Alabama. They each deny that 
this action arises under the Fourteenth Amendment to the 
United States Constitution, and they deny that it arises 
under Judicial Code 24 (1), 25 U. S. C. A. Section 41 (1). 
They are not in a position to admit or deny that the mat­
ter in controversy exceeds, exclusive of interest and costs, 
the sum of three thousand dollars ($3,000.00), and they 
demand strict proof of that allegation.

(2) That there is no justiciable controversy between 
all of the plaintiffs and all of the defendants.

The plaintiffs are not prevented from occupying the 
property they claim to own solely because of their race 
and color; they are effected by the zoning ordinance of 
the City of Birmingham; the classification of certain areas 
in the City of Birmingham in said ordinance as white resi­
dent and negro resident areas is based and justified in part 
upon the difference between the white and negro races 
and not solely upon race and color.

There has been dynamiting, bombing, violence, disorder 
and damage to property in the areas in which the plain-



20

tiffs claim to own property on recent previous occasions 
when negroes attempted to occupy property in said area 
zoned white residential and these defendants are informed 
and believes and on such information and belief charge 
and state that should the plaintiffs undertake to occupy 
the property they claim to own, there is a clear, grave and 
present danger of a race riot, violence and loss of life and 
tremendous property damage, all of, which will likely or 
probably follow such action and which cannot be pre­
vented by any amount of police protection that the City 
of Birmingham or the State of Alabama is able to afford, 
The lives of a large number of citizens, white and negro, 
in Birmingham would be jeopardized and the public peace 
and order disturbed to a marked degree. The defendants 
aver that an overwhelming majority of white and colored 
citizens in Birmingham favor residential segregation as 
the same is established by the zoning ordinance referred 
to in the complaint and said white and negro citizens rec­
ognize that said residential segregation is advantageous to 
both races and in the interest of both races and in the pub­
lic interest for the following reasons:

(a) Racial antipathies would be lessened. Because of 
differences between the races, resulting from different cul­
tural backgrounds and different physical make-ups, a nat­
ural prejudice prevents harmony. By keeping one sepa­
rated from the other it follows that the prejudice will man­
ifest itself less frequently.

(b) Each race would be more at ease—the white be­
cause it has a distaste for the colored, and the colored be­
cause it would feel less imposed upon and more independ­
ent. This, no doubt, is one of the important elements 
prompting various legislatures to enact laws separating the 
races in trains, schools and cities.



21

(c) Because of this feeling of independence the Negro, 
as a race, would be more progressive. There would be 
greater incentive for him to move forward in that he 
would feel he was improving his own castle rather than 
that of the white man. Mr. Shannon says that with segre­
gation “all would have better opportunity to develop 
along normal lines toward racial self-sufficiency, racial 
self-respect, and racial self-reliance.

(d) There would be less miscegenation. West Chester 
R. R. Co. v. Miles, 55 Pa. St. 209 (1867), states that com­
mingling of the races even on street cars was pernicious for 
the very reason that “the tendency of intimate social in­
termixture is to amalgamation contrary to the law of 
races.”

The defendants aver that:

“There is a certain type of temperament among the 
Negro intelligentsia which dramatizes equality as the goal 
of all their strivings. To this group discrimination on ac­
count of race is the last word of abomination. The slighest 
suggestion of distinction meets with indignation. No form 
of racial separation is tolerable. They deride the natural 
disposition of self-segregation as being derogatory to 
the doctrine of equality. To them agitation for rights is a 
more engaging pastime than calm and logical analysis of 
the factors involved in race advantage and advancement. 
The question often rises in the mind of the white people 
why intelligent, self-respecting Negroes seek to intrude 
themselves upon white communities, since in their view, 
exclusive racial neighborhood is but a proper assertion of 
races preferences and privilege and leads to the peace and 
happiness of all concerned.”



22

Negro Housing, page 208.

Defendants aver that the human right of hundreds of 
thousands of Negroes and whites in the City of Birming­
ham to peace and order and freedom from race war and 
race riots, that their right to life, liberty and the pursuit 
of happiness is superior to any alleged right of the plain­
tiffs to occupy property they claim to own which they ad­
mit they purchased with full knowledge of the restrictions 
placed on its occupancy by the City of Birmingham, 
Alabama, which have been acquiesed in, accepted and 
abided by the citizens of both races for more than twenty 
years. The defendants aver that the aforesaid human 
rights are paramount to any property rights asserted by 
the plaintiffs. The defendants deny that the ordinances 
as referred to in paragraph 2 are unconstitutional and in­
valid, but on the contrary say that the zoning ordinances 
of the City of Birmingham were adopted more than twenty 
years ago after protracted public hearings in which each 
class of citizenship in Birmingham was represented and 
heard, that it embraced a comprehensive plan for zoning 
in line with the best thought in the Nation on the sub­
ject of zoning and that said plan embodied in said zoning 
ordinances has been highly successful in its operation for 
twenty years or more and has contributed by stabilizing 
property values in the respective zones to the material 
prosperity and progress of the City of Birmingham, 
that it has alleviated racial friction and race tension 
and has contributed to the public peace and the public 
welfare to a marked degree. Defendants aver that said 
ordinance is a valid and legal exercise of the police power 
of the City of Birmingham which by specific statutory 
enactment is commensurate with the police power of the 
State of Alabama and is a power that is inalienable and 
cannot be surrendered by the City of Birmingham, Ala­
bama, or by the State of Alabama.



23

(3) The defendants do not know whether plaintiffs are 
citizens of the United States. The defendant, James W. 
Morgan and H. E. Hagood are citizens of the United 
States. The City of Birmingham is a municipal corpora­
tion. It is not a citizen of the United States. The defend­
ants deny that this is a class action authorized by Rule 
23 (a) of the Rules of Civil Procedure for the District 
Courts of the United States. They deny the remainder of 
the allegations in paragraph 3 of the complaint.

(4) The allegations in paragraph 4 are denied with 
the exception of the allegation that the property described 
in said bill is subject to the ordinance referred to and is 
zoned white residential property. That allegation in said 
bill is admitted.

(5) The allegations of paragraph 5 are admitted with 
the exception of the allegation that plaintiffs have been 
threatened with arrest, fine and imprisonment. That 
allegation is denied.

(6) The averments in paragraph 6 are true.

(7) The allegations in paragraph 7 are true.

(8) The allegations in paragraph 8 are untrue. The 
defendant, H. E. Hagood never stated that it would be 
agreeable to begin building and he never stated that he 
was sure he would issue the permit within a few days on 
the return of James W. Morgan. He stated that under no 
circumstances should construction of said proposed build­
ing be commerced in the absence of a duly issued building 
permit.



24

(9) The allegations in paragraph 9 are untrue because 
no such representation was made to the plaintiff as is 
charged in the complaint. These defendants deny that the 
plaintiffs have complied with all of the rules and regula­
tions of the City of Birmingham. They aver that the plain­
tiffs have not complied with the ordinances and the City 
Code of the City of Birmingham, Alabama, and that they 
are not entitled to the issuance of a building permit. The 
defendants say that on or about the 4th day of August, 
1949, Mary Means Monk filed a petition for mandamus in 
the Circuit Court in the Tenth Judicial Circuit of Alabama 
against James W. Morgan as a member of the City Com­
mission of the City of Birmingham, Alabama, and H. E. 
Hagood, Chief Building Inspector of the City of Birming­
ham, Alabama, in which she prayed a writ of mandamus 
to issue commanding said defendants to issue a building 
permit for the erection of a residence by her on the pro­
perty described in the complaint in this case, that on, to- 
wit, the 4th day of August, 1949, Hon. J. Edgar Bowron, 
one of the Judges of said Court issued an order command­
ing said defendants to appear before said Court on the 
22nd day of August, 1949, to show cause why the writ of 
mandamus should not issue and that after a hearing that 
proceeding was dismissed because it developed that the 
said Mary Means Monk had not complied with the ordin­
ances and the City Code of the City of Birmingham, 
Alabama, and was not entitled to a building permit for 
the erection of said residence. These defendants further 
say:

That the land described in the complaint is situated on 
the West side of Center Street between 9th Court, West, 
and 10th Avenue, West, in the City of Birmingham, Ala­
bama, and said land lies within an area in said city classi­
fied as “A-l Residence” under the provisions of Chapter



25

57 of the General Code of the City of Birmingham of 
1944, and defendants further aver that the use or occu­
pancy by a person of the negro race of a building or part 
thereof lying in an area in said city so classified as “A-l 
Residence” is prohibited by and is contrary to and in viola­
tion of Chapter 57 of said City Code. Defendants further 
aver that the plaintiffs are persons of the Negro race. 
Defendants further aver that Section 1595 of Chapter 57 
of said City Code requires respondent, H. E. Hagood, in 
his capacity as the administrative officer and enforcing 
officer of Chapter 57 of said City Code, in all cases of ap­
plication for building permits, “to determine that the pro­
posed structure and use of land will conform to the pro­
visions of” said Chapter 57, said Section 1595 being in 
words and figures as follows:

“Sec. 1595. Plats Required With Application for Building 
Permits.

All applications for building permits shall be accom­
panied by a plat in duplicate, drawn to scale, showing the 
actual dimensions of each lot to be built upon, the size 
and location of each building to be erected upon each lot, 
and such other information as may be necessary to enable 
the administrative officer to determine that the proposed 
structure and use of land will conform to the provisions 
of this chapter. A record of such applications and plats 
shall be kept in the officer of the administrative officer.” 
Defendants further aver that the said plans and applica­
tion for building permit each contain information clearly 
showing that plaintiff, Mary Means Monk, proposed to use 
or occupy as her home or residence said building pro­
posed to be erected by her upon said land described in 
the complaint. Defendants further aver that the plain­
tiff, Mary Means Monk, stated to respondent, H. E. Ha-



26

good, at or about the times said applicable for building per­
mit was submitted to defendant, H. E. Hagood, that Mary 
Means Monk proposed to erect said building for use and 
occupancy by her as her home and residence. Defendants 
further aver that from the aforesaid information con­
tained in said plans and application for building permit 
and the aforesaid statements made by Mary Means Monk, 
the respondent, H. E. Hagood, determined that the pro­
posed use of said land and the building proposed to be 
erected thereon would not conform to the provisions of 
Chapter 57 of said City Code, and H. E. Hagood, there­
upon refused to issue said building permit. Defendants fur­
ther aver that it was the duty of respondent, H. E. 
Hagood, under the provisions of Chapter 57 of said City 
Code, to refuse to issue said building permit upon his 
determining that the proposed use of said land and the 
building proposed to be erected thereon would not conform 
to the provisions of Chapter 57 of said City Code.

(b) Under the provisions of Section 717 of Title 62, 
Alabama Code of 1940, plaintiff could take an appeal to the 
Board of Adjustment from the decision of defendant, H. 
E. Hagood, as administrative officer of Chapter 57 of said 
City Code, refusing to issue said building permit. The per­
tinent portion of said Section 717 is as follows:

“Appeals to the board of adjustment may be taken by 
any person aggrieved or by any officer, department, board, 
or bureau of the municipality affected by any decision of 
the administrative officer.”

Defendants further aver that Mary Means Monk has not 
taken an appeal to the Board of Adjustment from the said 
decision of defendant, H. E. Hagood, in his capacity as 
administrative officer of said Chapter 57, refusing to issue 
said building permit, Defendants further aver that Sec-



27

tion 719 of Title 62, Code of Alabama of 1940, provides for 
an appeal to the Circuit Court from any final judgment 
or decision of the Board of Adjustment. Said Section 719 
of Title 62 is as follows:

Sec. 719. Appeals.—Any party aggrieved by any final 
judgment or decision of the board of adjustment, may 
within fifteen days thereafter appeal therefrom to the 
circuit Court or Court of like jurisdiction, by filing with 
such board a written notice of appeal specifying the judg­
ment or decision from which appeal is taken. In case of 
such appeal such board shall cause a transcript of the 
proceedings in the cause to be certified to the Court to 
which the appeal is taken and the cause shall in such Court 
be tried de novo.”

Defendants further aver that Mary Means Monk has not 
availed herself of the right of appeal provided for in 
Section 719 of Title 62, Alabama Code of 1940. Defendants 
further aver that Mary Means Monk is not entitled to in­
voke the extraordinary remedy of mandamus in this pro­
ceeding when she has failed to pursue her statutory right 
of appeal.

Defendants admit that Mary Means Monk employed 
a building contractor. They are not in a position to ad­
mit or deny the remainder of the allegations in para­
graph 9 and they demand strict proof thereof.

(10) In answer to averments in the tenth paragraph 
of the complaint, these defendants admit that Mary Means 
Monk requested the issuance of a permit from the de­
fendants, Morgan and Hagood; they deny that she has com­
plied with all of the rules and regulations of the City of 
Birmingham; they admit that she stands willing to pay 
the necessary fees for said permit. The defendants, Mor-



28

gan and Hagood, refused to issue saia permit; they deny 
that the refusal is based on the fact that Mary Means 
Monk is a member of the Negro race and said property 
zoned for the members of the white race, but that the 
denial is based on the fact that they have not complied 
with the City Code and the Ordinance of the City of Birm­
ingham and is ineligible to occupy a residence in the area 
referred to in the complaint because of the difference 
between members of the white race and members of the 
colored race.

(11) The allegations in paragraph 11 are denied and 
these defendants aver that it is unnecessary for the Court 
to pass on the question of whether or not the ordinances 
referred to in the complaint are illegal and violate the 
Fourteenth Amendment of the Constititution of the United 
States and Sections 41 and 42 of Title 8 of the United 
States Code. The white and colored citizens in Birmingham 
have abided by the zoning ordinances referred to in the 
complaint for more than twenty-five years prior to the 
filing of the complaint and that by unanimous consent up 
to the filing of the complaint abided by and respected the 
classifications established by the zoning board and ap­
proved by the Commission of the City of Birmingham, 
Alabama, as provided in said zoning law and as a result 
there has been devolped in the City of Birmingham a well 
established and well recognized custom which has crys- 
talized into a contract between the whites and Negro citi­
zens in Birmingham to the effect that the members of 
each race will abide by and respect the classifications 
established by the zoning board and that the members of 
one race will not undertage to occupy property for resi­
dential purposes that is located in an area zoned for resi­
dential purposes for the members of the other race. Based 
on that agreement and the aforesaid recognition of the said 
classifications for more than twenty-five years, thous-



29

ands of white citizens have built their homes in areas 
zoned white residential and thousands of colored citizens 
have built their homes in areas zoned negro residential 
area relying upon the aforesaid agreement and custom and 
its observances for a period of twenty years fully con­
fident that the area zoned white residential would not be 
invaded by Negroes and that the area zoned negro resi­
dential would not be invaded by members of the white 
race until the respective zoning classifications were 
changed by the zoning board in the way and manner pro­
vided by said zoning ordinances. The defendants aver 
that all of said property together with much additional 
residential property in Birmingham, white and colored 
alike, would immediately depreciate in value from twenty- 
five to fifty percent if the said custom is disregarded and 
the zoning law of the City of Birmingham is stricken 
down, that the municipal revenue would be so greatly dis- 
minished as a result of the depreciation in property values 
that the City of Birmingham would be unable to render 
the fire, police, health, street and light service to white 
and black that is necessary and essential, that the educa­
tion of white and black in Birmingham would be greatly 
impaired as a result of the diminution in municipal revenue 
and that the comfort, peace and progress of both races 
would be disturbed and arrested and all municipal service 
to both races materially impaired as a result of the dis- 
minution in revenue resulting from the decrease in pro­
perty values. Plaintiffs knew or by the exercise of ordinary 
diligence could have known of the aforesaid arrangements, 
facts and circumstances and when they purchased the 
property they claimed to own and they expressly or im­
pliedly agreed with their respective vendors and with other 
white and black citizens in Birmingham that they would 
not occupy said property for residential purposes until its 
present zoning classification was changed by the zoning 
board in a way and manner provided in the zoning ordin-



30

ance. These defendants aver that thousands of property 
owners in Birmingham, white and colored alike will suf­
fer irreparable injury and damage and the City of Birm­
ingham, will suffer irreparable injury and damage if the 
plaintiffs are allowed or permitted to upset or overturn 
the arrangement that has prevailed in the City of Birm­
ingham for more than twenty years, and defendants aver 
it would be inequitable to disturb the aforesaid arrange­
ment which is essential to peace and order and the life 
and property values in the City of Birmingham,

(12) The allegations in paragraph 12 are denied.

(13) The allegations in paragraph 13 are denied.
THOMAS E. HUEY, JR.,

Asst. City Attorney.
HORACE C. WILKINSON, 

Special Counsel for the City of 
Birmingham,

I certify that I have on this the 12 day of December, 
1949, served a copy of the above and foregoing answer to 
Arthur Shores, Attorney for Plaintiff,—

HORACE C. WILKINSON, 
Special Counsel for the City of 

Birmingham.



31

TRANSCRIPT OF EVIDENCE.

Filed. February 24, 1950.

(Title Omitted.)

In the District Court of the United States for the Southern 
Division of the Northern District of Alabama.

Mary Means Monk, Et Al., Plaintiffs,
vs. Case No. 6382.

City of Birmingham, Et Al., Defendants.

Birmingham, Alabama, 
December 12, 1949.

Before: Hon. Clarence Mullins, Judge.

Appearances:

Arthur Shores, Thurgood Marshall, David Hood, Jr., 
Peter A. Hall, of counsel for Plaintiffs.

Horace C. Wilkinson and T. E. Huey, Jr., of counsel 
for Defendants.

The Court:
I will call the case of Monk against the City of Birm­

ingham.

Mr. Shores:
Plaintiff is ready, Your Honor.

The Court:
All right, what say the Defendants in the case?



32

Mr. Wilkinson:
If Your Honor please, the Defendants are not ready 

in this case. Mr. Hagood, one of the Respondents, I am 
just informed this morning by his office, has been in 
bed since last Saturday, Doctor’s certificate is on the way 
to the Court, and will probably be here in just a few minu­
tes.

Mr. Hagood is a party Respondent, a party Defendant, 
and is also a material witness for the other Defendants.

In addition to that, if Your Honor please, we feel like 
that these Defendants require additional time in order to 
be able to present their case to the Court. I don’t know 
what Your Honor’s practice is. If you prefer that I be 
sworn as a witness and examined, I will be glad to do 
that, or I will make a statement to the Court of what has 
been done and what is necessary to be done in order to 
get the case in the shape for its proper presentation to 
the Court as we see it.

Here is the Doctor’s certificate for Mr. Hagood that has 
just come in.
The Court:

Well, so far as Hagood is concerned, it seems to me it 
could be tried on a showing for him.

Mr. Wilkinson:
The Doctor says it is some kind of respiratory infection. 

He is in bed.

The Court:
It is all right for you to go ahead and make any state­

ments.



33

Mr. Wilkinson:
If Your Honor please, I was employed in this case about 

a month ago, and promptly upon my employment I began 
to go into it, to see what was necessary in order to pro­
perly present the issues to the Court. I left Birmingham 
and went to Washington, the purpose being to get some 
research organization to make a study and report on the 
factual back-ground that we feel the Court must have in 
this case in order to properly pass on some of the issues 
that are presented.

The first organization that I went to was the Brookings 
Institute, which I conceive to be one of the more nation­
ally known research organizations. And they promptly 
told me that the volume of work on hand was so heavy 
that they could not undertake a study of this matter at 
this time; if they did understake to make a study of it, they 
would have to have at least six months in which to do it.

I then conferred with, I think, three other research 
bureaus in Washington, and got about the same response.

I then got on the telephone and began to contact pro­
fessors of sociology, professors of economics in defferent 
universities. I talked to one of the more prominent authori­
ties on the subject at Duke University, one in North 
Carolina, one at Vanderbilt, some in Alabama, some on the 
staff of the University of Maryland. From the university 
standpoint, I got this response, they were overloaded, un­
derstaffed, some of their staff were away on sabbatical 
leave, and I couldn’t get any help from those institutions,, 
and some others, on that account.

I then got in touch with some former research men in 
Washington, and undertook to organize what they call 
“A Project.” That is to assemble a number of research



34

people who could work at odd times, at night, on Sundays, 
holidays, and things of that kind. And I was successful in 
getting a group of them organized, and they have been at 
work for some time.

They say that a research of this kind is known as a 
“Mining Operation”, you have to go through a wealth of 
material to get some that you want. And they have fur­
nished me with quite a wealth of material. I have not been 
able to interpret it or evaluate all of it yet. I was laid 
up myself last week, incapacitated for the better part of 
the week on account of some medicine I had taken for a 
severe cold that I had. And I think the medicine is worse 
than the disease, if it affects everybody like it does me.

The long and short of it is that I have now, which came 
in Friday, some more Saturday, a wealth of material that 
is most helpful on the social and economic questions in­
volved in this case, and from what reading I have been 
able to do, in addition to the research that has been done, 
and I have done a good deal myself, all that I had time 
to do, the authorities seem to say that the question in­
volved in this case is very largely a social question, more 
social than it is legal.

While this was going on, I had the case involving the 
constitutionality of the recent expansion election set for 
trial, and I had to devote some time to that, and argued it 
before Judge Hawkins, and he held the Act unconstitu­
tional.

I also had set for trial an ordinance of the town of 
Homewood, attempting to put tourist camps out of busi­
ness, which I had to argue, a highly preferred case. Judge 
Creel decided it last week, and ruled with me on the 
major portion of that ordinance.

I would say, if Your Honor please, since I have been in 
this case, in an effort to get ready, leaving aside all ori- 
dinary business, but taking care of only the extraordinary



35

business that has been in my office, I have put in an 
average of fourteen to fifteen hours a day since I have been 
in this case. I can’t do better.

Now, this case is a case of momentous importance. You 
are dealing here with a social custom and condition that 
has prevailed here for 25 years or more. This case will, I 
will be able to show by any number of witnesses, I can 
get them into Court, insurance companies, banks, trust 
companies, mortgage companies, building and loan associa­
tions, will affect the property values, or may affect the 
property values of every piece of residential property in 
Birmingham.

It is a case, if Your Honor please, that involves social 
customs, and it is a case in which every writer that I have 
been able to find on the subject has unqualifiedly said 
should be presented to this Court, and if to the Supreme 
Court, should go to the Supreme Court with a record that 
will enable all the Courts to consider the momentous social 
and economic questions involved.

Now, that simply cannot be done in the time that we 
have had. I thought it was possible to do that. I have made 
the most diligent effort to be enabled to do it.

The City has not stinted on compensation for people that 
could be employed to do this line of work. But the trouble 
is they are not available, certainly for full time, and in 
the half time that they have had, notwithstanding the 
splendid work which has been done, they have not been 
able to complete the task. And they cannot complete it 
within the next few days.

We do not feel like it would be fair to anybody con­
nected with this case or that the Court would be fair with 
itself just to take a botched job of the proposition. That is 
the best that we would be able to submit to you at this 
time.



36

We will be able to submit to you, if we are allowed to 
complete the work that is going on, just to give Your 
Honor an idea. I have a list now in my file here of thirty- 
two articles in legal publications, such as the Yale Law 
Journal, the Harvard Law Journal, Columbia, California, 
and other leading law journals of the country, that I have 
not been able to read. They have been referred to me as 
holding certain things, and pointing out certain things, and 
making certain arguments, but it has been impossible.

I worked yesterday the better part of the day on this 
case, and last night, and I got up this morning and did 
some work on it. But outside of those legal publications, 
there are sociological treatises, there are economic trea­
tises, there are political references that we think it highly 
important to be able to present to this Court, and to put 
into the record in this case, which will we think materially 
influence the Court’s consideration of the case.

Now, we are not trying to delay this case. When I got 
into the case I found out that the city attorney had been 
sick for some time, and I have been able to hold but two 
short conferences with him since I have been in the case. 
Your Honor probably knows something about Mr. Willis’ 
condition. He is getting better, but his health has not been 
such that he could give this case the time and attention 
that it required. And that is one reason I presume that I 
was brought into it.

But, however that may be, Mr. Willis’ staff has been 
diligent in trying to aid in the presentation of this case. 
But a major portion of the work in this case is investiga­
tion and reports and studies of the social economic and 
historical factors involved.

And those seem to have great weight with the Courts 
of this day and time, because of the fact that the Courts 
recognize, as applied to one set of facts a statute may be 
unconstitutional, while as applied to another set of facts, 
the legislation may be constitional and so held.



37

And we think, if the Court please, that this is a case in 
which the Court should have the fullest possible light on 
the subject, and that is the privilege that we request, is 
just an opportunity to complete what is now in progress, 
in order that Your Honor may have all of the information 
that is available on the subject.

So far as Mr. Hagood is concerned, Your Honor’s refer­
ence to a showing as a witness, as I read the complaint in 
this case, and the position that the Plaintiffs have taken, 
the answer that I have filed, conferences that I had with 
Mr. Hagood several days ago, there will be a very sharp 
clash between him and some of the other witnesses that I 
pressume they will call to support their averments in the 
complaint about factual matters. Mr. Hagood is the only 
witness that the other Respondents have on that particular 
subject.

But it is a proposition, if Your Honor please, that here 
is something that materially affects, it vitally affects 
property values in Birmingham, peace and order, the 
homes of white and colored alike, and the future progress 
and prosperity and peace and order of this community are 
all involved in this case.

And we want an opportunity to present it to Your 
Honor, fully and completely, with the most positive assur­
ance that I can give you that there has been every effort 
that I know of that could be made and put forth to have 
this case ready for trial at this time. I certainly have not 
spared any effort consistent with the other engagements 
that I had to fulfill and from which I could not be ex­
cused, and I know from my association with Mr. Willis’ 
staff and the city attorney’s office that they have side­
tracked other matters to help get this case ready for pre­
sentation.



38

We are not ready at this time, and we cannot be ready. 
The best we can possibly do would be a botched job in this 
case, and I would hate mighty bad to have to submit the 
case to the Court inadequately prepared, and inadequate­
ly presented.

A short delay will not prejudice anybody, and it would 
give us an opportunity to present this case fully and fairly 
to Your Honor.

And I assure you that there are many grave questions 
in this case. I think when we get through with the investi­
gation of facts in this case it will not be necessary for you 
to pass on the constitutionality of this ordinance at all. 
That is the view that I have of it.

But to do that we have got to present a factual picture 
to Your Honor from which you could say, in line with 
previous decisions of the Supreme Court, that that is not 
the paramount question in this case, that there are other 
questions that are paramount to the question of the con­
stitutionality, vel non, of this ordinance.

But if you reach the point of the constitutionality, I will 
be able to show the Court by most reputable authority 
that there are very serious social questions involved; very 
serious economic questions involved; that the Court 
could hardly decide the case without giving very profound 
consideration to those questions.

It is for that reason that, if Your Honor please, it can­
not be done within the limited time which I have had to 
do it, and we ask for an opportunity to present to the Court 
fully and freely these questions that we think of vital im­
port in this case.



39

Mr. Shores:
May it please the Court, ordinarily, as long as a request 

for a continuance is reasonable, we do not have any ob­
jection to continuances, but we feel that since this case 
was filed some time in October, set for hearing in October, 
and then passed again to the 10th of November, and 
then again to the 12th of December, we realize that it is a 
question of some importance, but the question is primarily 
the question of the unconstitutionality of this ordinance on 
its face.

There are no social or economic or other implications 
that require any great amount of research. Not only has 
Your Honor decided the various questions that were men­
tioned by counsel for the Defendants, but the Supreme 
Court has decided over and over again those same ques­
tions.

Your Honor is thoroughly familiar with the facts and 
the law, because he has ruled on similar ordinances not 
only for the City of Birmingham, but for surrounding 
cities,—I believe the first one was the City of Tarrant, a 
similar ordinance, then a similar ordinance by the City of 
Birmingham.

And we feel that these people have waited, they have 
started building, and others are waiting to build, and these 
questions that were raised are not of such importance, are 
not of such uniqueness in character as to require all of 
this delay, because the question is purely one of whether 
or not this ordinance is unconstitutional.

And I think Your Honor’s own decisions, backed up by 
the decisions of the highest Court in the land and decisions 
of similar Courts offer ample proof that the ordinance is



40

unconstitutional on its face, and the necessity of showing 
the background and the custom, usage, and the like, is just 
unnecessary. And for that reason we want to oppose the 
granting of this continuance, because we can stipulate as 
to what Mr. Hagood would testify, and we certainly would 
like to get along with the case.

For that reason, we submit that the motion for continu­
ance should be overruled.

Mr. Huey:
May it please the Court, I might say we certainly realize 

this case has been passed one time. It was passed though, 
as Your Honor recalls, because it was necessary for the 
Court to be in Tuscaloose at another session of Court.

The City has requested a continuance in this matter in 
good faith. We did that since the case was set before. As 
Judge Wilkinson has told you, there is no question but 
that we just haven’t had time enough to get the factual 
matters assembled for proper presentation of the question.

Now, we know, looking at this case realistically, as has 
been stated, Your Honor has held other ordinances similar 
to this unconstitutional. We realize that fact, and we know 
that Your Honor places a great deal of importance in the 
case of Buchanan against Warley, as it applies to this 
particular ordinance. And we know that we have got to 
come in here and present to Your Honor a different case 
from the factual matter presented in Buchanan against 
Warley. We know that. We do not know that that case,— 
we do not concede that it does determine this particular 
case. But we can show facts which will distinguish this 
case from that.



41

Now, they say that there is only a question of law 
involved, and that all you have got to do is look at the 
cases, I suppose he means Buchanan versus Warley, and 
you will automatically say that this ordinance is uncon­
stitutional.

Now, what has been the history in these other cases, 
restrictive covenant cases? It has been recognized for years 
and years that restrictive covenants were valid, and they 
kept hammering at the Court in order to get the Court to 
hold that those restrictive covenants are not enforceable. 
And they will probably mention other cases when they talk 
about the established law as laid down by the Supreme 
Court of the United States.

As Your Honor well knows, that has been the law for 
more than 50 years, that segregation in dining cars on a 
railroad was constitutional, and a valid exercise of the state 
police power. And right now they are attacking that de­
cision in the Supreme Court of the United States. They 
are trying to get the Court to reverse itself and hold that 
segregation in dining cars is unconstitutional.

If his observation about this case is valid, then all the 
Court has to do there is merely look at the Percy case, and 
they know that segregation in dining cars is not constitu­
tional. So the answer in this case is not simply Buchanan: 
against Warley and the other cases he refers to, that they 
think have already decided this matter.

We want the opportunity to present to this Court the 
factual matter that Judge Wilkinson is now working on, 
and the staff that he has engaged, so that we can present 
the full picture to the Court in regard to all of the pro­
blems involved in his zoning problem.



42

We merely ask that sufficient time be given for the com­
pletion of that work.

Mr. Wilkinson:
May I add just this word that Mr. Huey probably over­

looked? Only last week the City, to show their good faith 
on this proposition, approved the payment of, I don’t know 
exactly, but about twelve hundred dollars in round figures 
for the work that has been done in this case up until 
the first day of December. The staff is still working, and 
they will have to work for some number of days in the fu­
ture.

The City would not want to just idly throw away the 
taxpayers money in that way. They only do that because it 
is necessary in the judgment of people who have studied a 
case of this kind, to present to Your Honor fairly the fact­
ual picture, and the factual background.

For instance, I discovered, I think it was Saturday, that 
as far back as 1923, some 26 years ago, that this Center 
Street controversy came up and was at that time apparent­
ly settled by an agreement in which everybody has appar­
ently acquiesced until recently, that west of Center Street 
was to be white territory. Now, I just rely on a newspaper 
article that a party has referred to me to that effect. I’ve 
got to investigate that and find out and determine what 
the facts were about it.

I have drafted an answer in this case which I think 
is in line with settled authority on the subject, that 
so far as the disposition of this important case is con­
cerned, this Court is not called on to pass on the con­
stitutionality of that ordinance. We have no objection 
to the Court passing on it when we get prepared to re-



43

veal to Your Honor what is involved in this case, but 
it just can’t be done within the limited time. We have 
only scratched the surface, and only got an outline 
of it. That is the reason for the plea for additional 
time.

It is in the public interest, it is in everbody’s inter­
est that this case be decided correctly, and it is in every­
body’s interest that Your Honor have all of the avail­
able information that is relevant and pertinent to the 
issues here, in order that you may reach a proper con­
clusion in the case.

We can give that to you, and we will give it to you if 
we have the opportunity of doing so. It has just been 
impossible to do it within the time at our disposal.

I was impressed, if Your Honor please, by the atti­
tude that these research bureaus took when we en­
deavored to elicit their study of the different phases of 
this matter. They were rather surprised that we would 
ask for anything to be done in less than four months 
and six months was the preferential time. In fact, 
the Brookings people said they would not undertake it 
unless they had six months time in which to make the 
study.

But it won’t take us six months, it won’t take us four 
months. We have got a great deal of work that has, been, 
done that needs to be brought to a conclusion. We have a 
clue, here, there, and yonder, but we have to go through 
many documents and many papers, many Court records.

For instance, I went to Chicago last week. I found a 
newspaper story which gave this information, that in 
Chicago and Detroit, I think it was East St. Louis and



44

some other northern cities, where some of the Negro popu­
lation had developed an area that was pretty largely in­
habited by the professional class, and the artists and so 
on of the Negro race, they went into Court in 1941 and ’42 
and ’43, and they themselves obtained injunctions against 
other Negroes moving into that territory on the ground 
that they were war workers, and that their presence there 
would depreciate their property values.

I went to the President of the Chicago Bar Association 
for a record of those cases, and he said that he remembered 
something about it coming up, but he couldn’t give me the 
style of the case. I went to the clerk of the superior Court 
and asked him about the case, and he said “Well, now, if 
you will give me that style of the case, I can give you a re­
cord of it, but I don’t remember what it was. It may be 
in this Court, and it may be in the Circuit Court.”

The circuit Court gave me the same reply, nobody in the 
office happened to know. I think it would be interesting 
for this Court to know the basis for those decisions, the 
authorities that the Court cited in their disposition of the 
matter.

I have written to Detroit to try to get that information, 
and am having a search made in Chicago now for those 
cases. It was stated plainly and emphatically in the paper, 
but it just didn’t give the names of the litigants. I am hav­
ing a search made in East St. Louis now.

That is just a side light of what is necessary to get up 
a factual picture of this case and of the law that has been 
invoked in other jurisdictions, supported and sustained.

So we would just like to have an opportunity to do that. 
We are not asking for any long delay in this case, just a



45

reasonable opportunity to assemble these things, and we 
•Will be ready to go to bat just as soon as the papers get 
here. I have some eighty-five documents now that came 
in Friday and Saturday, about fifty Friday and thirty-five 
Saturday, that I have not been able to analyze and trace 
and to interpret.

If they are in points in this case, I would like to put 
them before Your Honor.

Some of them may belong under one heading, and some 
under another. I think the Court would certainly be in­
terested in those documents. They are writings from dis­
tinguished educators, professors of sociology, professors of 
economics, professors of law, dean of law departments, and 
things of that kind. And it is necessary that I have time to 
break those things down and classify them. And if we are 
to make the best and most preferred use of them, we have 
to have an opportunity to study them and tell you what 
the relevant part of them is, and things of that kind. It has 
been impossible for me to do that. I can’t do it. If we have 
a little time we can get that done.

The Court:
Do you have a copy of the answer you have drawn?

Mr. Wilkinson:
Yes, sir. I will state to the Court, and I stated to opposing 

counsel when I gave him that answer, that it may be modi­
fied in some respects in the light of other facts being de­
veloped and that will come in, but that is as far as I can 
go at this time. I completed that only this morning.
The Court:

It has several pages, and I would like to look this 
answer over. We will take a 15 minute recess.

(A recess was had.)



46

The Court:
I will overrule your motion for continuance.

Mr. Wilkinson:
We reserve an exception if the Court please.

The Court:
You have got the question of preparing a showing for 

Mr. Hagood.

Mr. Wilkinson:
Yes, sir.

The Court:
I will give you until 2 o’clock to get together on that 

showing.

Mr, Wilkinson:
All right.

The Court:
We will adjourn until 2 o’clock.

(Whereupon, at 11:45 a. m. a recess was taken until 
2 p. m. of the same day.)

Afternoon Session 2 P. M,

The Court:
All right.

Mr. Wilkinson;
Mr. Huey and I got in a car during the noon hour and 

went out to Mr. Hagood’s home and took that statement.



47

The Court:
All right. Is the showing agreeable to you?

Mr. Shores:
Yes, sir.

The Court:
All right.

Mr. Shores:
I have a stipulation.

The Court:
All right, we have two showings here for Hagood then, 

is that right?

Mr. Shores:
Yes, sir.

The Court:
One by the Plaintiff and one by the Defendant? 

Mr. Wilkinson:
A stipulation by the Plaintiff.

The Court:
All right.

(Said showing is as follows:)
“The Defendant, H. E. Hagood, who is absent on account 

of being confined to his bed on account of illness, if pre­
sent would testify as follows:

“His name is H. E. Hagood. He is Building Inspector 
for the City of Birmingham, Alabama, and as such is



48

Chief Enforcement Officer of the Zoning Ordinances of 
the City of Birmingham. The Plaintiffs in this case have 
not been threatened with arrest, fine and imprisonment, 
so far as he knows. He never stated that it would be agree­
able for any of the Plaintiffs to begin building, and he 
never stated that he was sure he would issue a permit to 
Mary Monk within a few days of the return of James 
W. Morgan. He did state to Mary Monk or to her contrac­
tor that under no circumstances should construction of 
the proposed dwelling of Mary Monk be commenced in the 
absence of a duly issued building permit.

“The next morning after the trial in Circuit Court, 
Mary Monk called H. E. Hagood on the telephone and 
asked him for advice about going ahead with the building. 
I referred her to her attorney. She said she had paid him 
one hundred dollars and that he wanted more money to 
take the case to the United States Court. She said she 
wanted to get her name out of it. That she had too many 
white friends to have to take the blame for the write-up 
that had been in the paper about the case. She said she 
had tried to get her money back from the party who sold 
her the property and that she wanted to get out of the 
whole thing. I told her that the feeling was so high that 
for safety purposes I did not believe it would be wise to 
try to build there even if she could get a permit. None of 
the other Plaintiffs have ever applied for any building 
permit to my knowledge.

H. E. HAGOOD.

Witness: HOACE C. WLRINSON.”

(Said stipulation is as follows:)
“It is hereby stipulated by and between counsel for 

Plaintiffs and Defendants in the above styled case that the



49

testimony of H. E. Hagood, Chief Building Inspector of the 
City of Birmingham, as witness for Plaintiffs, were he to 
testify, would be as follows:

“That H. E. Hagood examined the plans and specification 
of Plaintiff, Mary Means Monk, and found the said 
plans and specification were in compliance with the struc­
tural requirements of the Building Code of the City of 
Birmingham.

“That Plaintiff, Mary Means Monk, made application for 
a building permit, but that the said issuance of the said 
building permit was refused, because the purpose fox 
which the said property was to be used would violate 
Chapter 57, viz Section 1604 and Ordinance 709F, General 
City Code of the City of Biringham, 1944, in that the 
property was zoned for whites.

ARTHUR D. SHORES,
Counsel for Plaintiffs.

HORACE C. WILKINSON,
Counsel for Defendants.”

The Court:
All right, I guess you might call the witnesses and swear 

them.

(Witnesses were called and sworn.)

The Court:
I think I might make this statement for the record be­

fore we go into this case. On the City’s application for a 
continuance of the case. I offered to continue the case if 
the City would agree to a temporary injunction pending 
the continuance, and let it be tried some months later



50

on the question of whether or not a permanent injunction 
should be granted. It is my understanding that you did not 
care to do that.

Mr. Wilkinson:
That is correct, Your Honor.

The Court:
Then I offered to try the case on the question just of the 

temporary injunction, and try it later on the question of a 
permanent injunction. The City suggested, and I think that 
is right, that there is no use to try the case twice, so we 
will just try it all now.

Mr. Wilkinson:
That is correct.

The Court:
I think I might make this further statement, as I see it, 

what you are asking this Court to do, properly, is to rule 
contrary to the Warley case. I have no authority to over­
rule the opinions of the Supreme Court of the United 
States. On the other hand it is my sworn duty to follow 
them.

It seems to me if the case was continued, and if you 
made the surveys that you have spoken of, the ruling of the 
Court would probably be that they would not be admissible 
in evidence, as I follow the Warley decision. And it is 
my idea that it is my duty to follow that decision, and I 
think I will make the ruling on the evidence in accordance 
with the law as I see it as it is laid down in that opinion.

All right, you can call your first witness.



51

Mr. Wilkinson:
Let’s get our position clear to your Honor. We think this 

case can be differentiated from the Warley case in many 
important particulars, and we are not asking Your Honor 
to rule contrary to the Warley case as we understand and 
interpret it. There may be a difference of opinion between 
the Court and counsel about how the case should be inter­
preted.

As we understand it, and as we will attempt to show 
Your Honor, this case will be radically differentiated from 
the Warley case.

The Court:
Well, it is my idea at this time that these sociological 

surveys or economic surveys that you expect to have made, 
and the testimony along that line, would not be admissible 
in this case. That was answered in the Warley case.

Mr. Wilkinson:
That is just one point.

The Court:
I do want to do this, I want to give you an opportunity to 

of course make offers to show, or whatever is necessary, 
to protect you on the rulings on that proposition. I want 
you to have the advantage of it.

Mr. Wilkinson:
The Warley case is only one angle of this controversy, 

as we view it. We expect to show this Court by logical evi­
dence, evidence that cannot be successfully controverted, 
that if the position of the Plaintiff in this case is upheld, 
Birmingham will default on its bonds, and be placed in a 
position for receivership, and essential municipal services 
cannot be furnished to either white or colored here.



52

The Court:
I think that was answered by the Warley case.

Mr. Wilkinson:
We don’t think so.

The Court:
I think if you should read it, you are almost bound to 

agree with me.

Mr. Wilkinson:
Sir?

The Court:
I think you are almost bound to agree with me if you 

read that opinion,

Mr. Wilkinson:
No, sir, the Warley case, as I understand it—

The Court:
What you offer to show is that it will depreciate the 

property values.

Mr. Wilkinson:
That is incidental. What I want to show is a paralysis 

of municipal functions resulting from a depreciation in 
ad valorem tax values. This Court is not going to decide the 
case solely on the proposition that property values go 
down, but when you talk about paralyzing essential 
functions of Government, you are dealing with an entirely 
different proposition.

The Court:
All right, I will rule on it as you go along.



53

Mr. Wilkinson:
All right.

The Court:
Call your first witness.

Mr. Shores:
Mary Monk.

MARY MEANS MONK, one of the Plaintiffs, being first 
duly sworn, testified in behalf of the Plaintiffs as follows:

Direct Examination.

By Mr. Shores:
Q. State your full name, please,
A. Mary Means Monk.
Q. Of what race are you?
A. Colored.
Q. Of African descent?
A. African descent, that’s right.
Q. Where were you born?
A. Birmingham, Alabama.
Q. And you are a citizen of the State of Alabama and 

the United States?
A. Yes, sir.
Q. Have you lived here all your life?
A. Yes,, sir.
Q. Are you the Plaintiff in this case, one of the Plain­

tiffs in this case?
A. Yes.
Q. Do you own property described as the North 42 

feet of the South 107-% feet of Lots 1, 2 and 3 in Block 
37, together with the South 42-% feet of the North 92-%



54

feet of Lots 1 and 2 in Block 67 according to Dr. Joseph R. 
Smith’s addition to Birmingham, called North Smithfield, 
in Jefferson County, Alabama?

A. Yes, sir, I do.
Q. Do you have a deed to that property?
A. I do.
Q. Do you have it with you?
A. Yes, sir.
Q. Is this the deed you received?
A. Yes, it is.

Mr. Shores:
We would like to have this marked.

(Plaintiffs’ Exhibit No. 1 was marked for identification.) 

Mr. Shores:
Does counsel wish to see this deed?

Mr. Wilkinson:
No.

Q. How much did you pay for that property?
A. Two thousand dollars.
Q. And for what purpose did you purchase this pro­

perty?
A. For dwelling purposes.
Q. For whom?
A. Me and my family.



55

WARRANTY DEED.

Form 106.

Deed 4341, Page 14.

The State of Alabama,
Jefferson County.

Know All Men By These Presents, That in consideration 
of Two Thousand Dollars ($2,000.00) Dollars to the under­
signed grantor, Corrado Toro also known as C. Toro in 
hand paid by Mary Means Monk, the receipt whereof is 
acknowledged, I, the said Corrado Toro, do grant, bargain, 
sell and convey unto the said Mary Means Monk the 
following described real estate, to-wit: North Forty-two 
& one-half ( 42% ) feet of the South One Hundred & Seven 
and one-half (107%) feet of lots One, Two and Three (1, 
2, 3) in Block Thirty-seven (37) together with the South 
Forty-two & one-half (42%) feet of the North Ninety-two 
& one-half (92%) feet of lots One and Two in Block 
Thirty-seven (37) according to Dr. Joseph R. Smith’s 
addition to Birmingham called Smithfield, North, as re­
corded in Map Book 1, page 149, in the Office of the 
Judge of Probate of Jefferson County, Alabama, situated 
in Jefferson County, Alabama.

(Stamps here.)

To Have and to Hold, To the said Mary Means Monk, her 
heirs and assigns forever.

And I do, for myself and for my heirs, executors and ad­
ministrators, covenant with the said Mary Means Monk, 
heirs and assigns, that I am lawfully seized in fee simply 
of said premises; that they are free from all encumbrances;



56

that I have a good right to sell and convey the same as 
aforesaid; that I will, and my heirs, executors and ad­
ministrators, shall warrant and defend the same to the 
said Mary Means Monk, heirs and assigns forever, against 
the lawful claims of all persons.

In Witness Whereof, I have hereto set my hand and 
seal, this 22nd day of July, 1949.

C. TORO, (Seal)
CATHERINE TORO. (Seal)

Witnesses:
L. L. WASHINGTON.

I hereby certify that the deed tax $2.00 & mtg. tax has 
been paid on this instrument.

TOM C. GARDNER,
Judge of Probate.

Deed 4341, Page 15.

The State of Alabama,
Jefferson County.

I, L. L. Washington, a Notary Public in and for said 
county, in said State, hereby certify that Corrado Toro & 
Catherine Toro, whose names are signed to the foregoing 
conveyance, and who are known to me, acknowledged be­
fore me this day that, being informed of the contents of 
the conveyance, executed the same voluntarily on the 
day the same bears date.

Given under my hand and official seal, this 22nd day 
of July, 1949.

L. L. WASHINGTON,
(Seal) Notary Public.

My commission expires October 22, 1950.
Bonded by The Employers Liability Assurance Corp.



57

The State of Alabama,
Jefferson County.

I, L. L. Washington, a Notary Public in and for said 
county, in said State, hereby certify that on the 22nd 
day of July, 1949, came before me the within named 
Catherine Toro, known to me to be the wife of the within 
name Corrado Toro, who, being examined separate and 
apart from the husband touching her signature to the 
within conveyance, acknowledged that she signed the same 
of her own free will and accord, and without fear, con­
straints, or threats on the part of the husband.

Given under my hand and official seal, this 22nd day of 
July, 1949.

L. L. WASHINGTON, 
Notary Public.

Filed in office for Record: July 22, 1949.

My commission expires October 22, 1950,

Bonded by the Employers Liability Assurance Corp.

Duly recorded Deed: 4341, Page 14.

The State of Alabama,
Jefferson County.

I, Tom C. Gardner, Judge of Probate, a Notary Public 
in and for said county, in said State, hereby certify that
.............................. whose name a s ....... President of the
■ ■;............................  a corporation, is signed to the fore­
going conveyance, and who is known to me, acknowledged 
before me on this day that, being informed of the contents 
of the conveyance, he, as such officer and with full au-



58

thority, executed the same voluntarily for and as the act 
of said corporation.

Given under my hand and official seal, this . . . .  day 
of ..................................

Notary Public.

$2,000.00. C. Toro & Catherine to Mary Means Monk.
7-22. Warranty Deed, The State of Alabama, ..................
County. I, Judge of the Probate Court of said County, 
hereby certify that the foregoing conveyance was filed 
for registration in this office on the 23rd day of July, 1949, 
and was recorded in Vol. 4341, Record of Deeds, Page 14, 
on the . . . .  day of ..............., 19. ..

TOM C. GARNER,
Judge of Probate.

Recording Fee . . .  $2.00 
State Tax .........  $ .75

Q. For you and your family?
A. Yes.
Q. Did you employ a contractor to build on this 

property, draw plans and specifications?
A. Yes, sir.
Q. What is the name of that contractor?
A. G. W. Pearson.
Q. Did you enter into an agreement with him to build 

this house?
A. Yes, sir.
Q. At what cost?

I A. Eleven thousand dollars.
Q. Did you make any down payment?

A. Yes, sir.



59

Q. What sums did you pay?
A. Two thousand dollars.
Q. You paid two thousand dollars down?
A. Yes, sir.
Q. And that is in addition to the two thousand dollars 

you paid for the lot?
A. Yes, sir.
Q. Were plans and specifications drawn up for the 

building of this house?
A. Yes, sir.
Q. Did you present your plans and specifications to the 

building inspector?
A. Yes, sir.
Q. Of the City of Birmingham?
A. Yes, sir.
Q. Who was the building inspector?
A. Mr. Hagood.
Q. Do you know Mr. Hagood?
A. Yes, sir.
Q. Did Mr. Hagood approve your structual specifica­

tions and plans?
A. Yes, sir.
Q. Did you request a permit from Mr. Hagood?
A. Yes, sir.
Q. Just what did he do when you requested, or say, 

when you requested a permit to build?
A. At my first time going in—

Mr. Wilkinson:
I can’t hear you.

A. At my first time going in he said he couldn’t issue 
the permit because Mr. Morgan was out of town, and we 
might go on clearing out the rubbish, getting ready for the 
foundation, until Mr. Morgan was back, and when Mr. 
Morgan was back I might come back. So when Mr. Morgan



60

was in town I went back and went in his office, and he 
gave me another date to come back. He couldn’t tell me 
anything definitely then because that property was being 
worked out on a basis unsatisfactory, and he gave me an­
other date to come back, and when I went back on the 
next time he said he still didn’t know any more than what 
he did when I was there last, that the property was 
zoned for white, and the white and colored hadn’t reached 
any conclusion as yet.

Q. Did he state that there was a committee appointed 
by him to reach some argeement?

A. Yes, sir.
Q. As to rezoning of that property?
A. Yes, sir.
Q. Did you finally go back to Mr. Hagood for the per­

mit?
A. Yes, sir, I went back to Mr. Hagood again, and he 

in turn carried me to Mr. Green’s office, and when I went 
in there Mr. Green pointed me to some other property on 
the other side of the street, up the hill, that I might 
look at, that was going to be zoned for colored in the next 
committee meeting of the Commissioners. I also attended 
that meeting, and that side of the street was zoned for 
Negroes.

Q. Did Mr. Hagood ever tell you why he couldn’t issue 
you a permit to build?

A. Yes, sir, he did, he said because that property was 
zoned for white, and hadn’t been zoned for Negroes as yet.

Q. It was zoned for white, and hadn’t been rezoned for 
Negroes?

A. That’s right.

Mr. Shores:
Answer Mr. Wilkinson’s questions.



61

Cross Examination.

By Mr. Wilkinson:
Q. Who was it that told you that there was a com­

mittee working on the proposal to rezone the property?
A. Mr. Morgan.
Q. Mr. Morgan?
A. That’s right.
Q. Did you tell him whatever the committee did would 

be satisfactory with you?
A. No, I did not.
Q. How is that?
A. No, sir, I didn’t, unless it was in the favor of my 

building. That’s what I was trying to do.
Q. The property that you say you own is on the west 

side of Center Street, is it not?
A. Yes, sir.
Q. And it is between 9th Court and 11th Avenue, is 

it not?
A. Bewteen 9th Court and 10th Avenue.
Q. Well, 10th Avenue. From 9th Court to 11th Avenue, 

and from the west side of Center Street for several blocks 
west is white territory, is it not?

A. Yes, sir.
Q. The east side of Center Street I believe you said 

in the same territory was zoned for colored?
A. Yes, sir.
Q. And where you propose to locate your home is 

directly across Center Street from that portion of it that 
is zoned colored?

A. Yes, sir.
Q. You say you have lived in Birmingham all your 

life?
A. Yes, sir.
Q. About how old are you?



62

A. I am 44 years old.
Q. 44?
A. Yes, sir.
Q. Were you here when the matter came up in 1923 

over a controversy whether Center Street would be the 
line or not?

Mr. Marshall;
We object to what happened in 1923. It is certainly not 

in issue here.

The Court:
I overrule the objection to the preliminary question.

A. I was not living on this side of town then, I was 
living in West End where I was born, in Cleveland.

Q. Did you know about the meetings that were held, 
and the conclusions that were reached, and the agree­
ments that were entered into by the parties at that time? 

A. At that time?
Q. Yes.
A. No, sir, I was a girl at that time. I didn’t know much 

about things like that.

Mr. Wilkinson:
Ail right, that’s all.

The Court:
Let me ask you this question. When did you buy this 

property?

The Witness:
In June I believe, June or July.

Mr. Wilkinson:
I didn’t hear Your Honor.



63

The Court:
June or July of what year?

The Witness:
Of this year.

The Court:
All right, go ahead.

Mr. Wilkinson:
I didn’t hear what Your Honor said.

The Court:
I asked when she bought the property and she said 

in June or July of this Year.

Mr. Wilkinson:
Yes, sir.

By Mr. Wilkinson:
Q. You stated in your application, and also to Mr. 

Hagood and Mr. Morgan, that you were going to build a 
residence there for you and your family to occupy, did you 
not?

Mr. Wilkinson:
All right, that’s all.

Mr. Shores:
That’s all.

The Court:
Do you know how the property was zoned at the time 

you bought it?



64

The Witness:
I didn’t know that it wasn’t—they were having those 

meetings when I bought it, and they were saying that 
it was going to be zoned for colored, is why it was being 
sold out to colored.

The Court:
Who did you buy the property from?

The Witness:
I bought it from Washington Sales Cooperation, from 

Toro, an Italian.

The Court:
Was it a white concern who sold you the property?

The Witness:
A colored man sold it, but he was selling for an Italian. 

The Court:
And he told you it was to be zoned for Negroes, is that 

right?

The Witness:
That’s right, and colored people were living in the house 

next to it.

The Court:
All right.

Mr. Shores:
That’s all.

(Witness excused )



65

GEORGE W. PEARSON, called as a witness on behalf 
of the Plaintiffs, being first duly sworn, testified as fol­
lows:

Direct Examination,

By Mr. Shores:
Q. State your name.
A. George W. Pearson.
Q. What is your occupation?
A. Building contractor.
Q. How long have you been a building contractor?
A. About 36 years.
Q. 36 years?
A. That’s right.
Q. Are you licensed by the City of Birmingham?
A. City and County.
Q. City and County?
A. Yes.
Q. Were you employed some time prior to the filing 

of this suit to draw up plans and specifications for a build­
ing for the Plaintiff, Mary Means Monk?

A. Yes, sir.
Q. Speak up so they can hear you.
A. Yes, sir.
Q. Did you draw up plans and specifications?
A. Yes, sir.
Q. And what amount were you to build this house 

for?
A. Eleven thousand dollars.
Q. For eleven thousand dollars?
A. Yes, sir.
Q. Were you paid anything down?
A. Two thousand dollars.
Q. Did you accompany Mrs. Monk up to the building 

inspector’s office to get a permit?



66

A. I did.
Q. Did you carry your plans and specifications up there 

to the building inspector’s office?
A. Yes, sir, I did.
Q. Were your plans and specifications, your structural 

plans and specifications O. K.’d?
A. At first there was a few things he told me to straigh­

ten out and bring them back, so I did that and carried them 
back and the O. K.’d them.

Q. And they were O. K.’d?
A. Yes, sir.
Q. Did he ever issue you the permit for you to build?
A. No, I never did get the permit.
Q. Now, prior to your going back to him two or three 

times was there ever any question about the issuance of 
the permit, did he tell you that he would issue it?

A. Oh, yes, he said he would issue it, but Mr. Morgan 
was out of town, and for us to come back Friday, but I 
could go ahead on it, cleaning up, and get the foundation 
out, and then they would issue the permit when Mr. Mor­
gan come back in town on Friday.

Q. Did you go ahead and begin clearing and cleaning 
the ground?

A. Yes, sir.
Q. And getting the foundation in order?
A. Yes, sir.
Q. Did you do any of that?
A. I got the foundation down, and the house moved and 

everything, and material delivered.
Q. How much material did you deliver?
A. They hadn’t sent all of it out, but I had purchased 

thirteen hundred some dollars worth of material.
Q. Did Mr. Hagood ever tell you why he would not 

issue the permit?
A. Well, he had us come back up one or two times to 

get the permit. Something happened, he went back to an-



67

other office, so they turned it down, and we never got the 
permit.

Q. Did he tell you why?
A. He said it was in a white zone, and they had some 

committee or something that was working on it, and as 
soon as they got it straight they would call us back.

Q. Did they ever get it straight and call you back? 
A. Not as I know of, they haven’t called me.
Q. On your last trip there it was refused on the ground 

that it was zoned for white?
A. For white. _ , * |

Mr. Shores:
That is all.

Mr. Wilkinson:
That is all.

(Witness excused.)

HOWARD WILLIAM McELRATH, one of the Plaintiffs, 
being first duly sworn, testified in behalf of the Plaintiffs 
as follows:

Direct Examination.

By Mr. Shores:
Q. State your name, please.
A. Howard William McElrath. 
Q. What is your occupation?
A. I am an insurance man.
Q. An insurance man?
A. An insurance man.
Q. Who do you work with?



68

A. Protective Industrial Insurance Company.
Q. Are you a native of, were you born in the United 

States?
A. I was.
Q. Have you lived in the United States all of your life?
A. I have, with the exception of some time in Canada 

as a school man.
Q. What?
A- I spent some time in Canada going to school. My re­

sidence was still here.
Q. You attended school out of the United States?
A. Yes.
Q. Where were you?
A. Toronto, Ontario.
Q. Do you own property here described as the North 

One-Half of Lots 13, 14, 15, and 16 in Block 40 according 
to Dr. Joseph R. Smith’s addition to Birmingham, known 
as North Smithfield?

A. I own the North One-Half of that North One-Half.
Q. And you have a deed to that property?
A. I have.
Q. Do you have that deed with you?
A. I do not.
Q. For what purpose did you purchase this property?
A. To build a home, for dwelling purposes.
Q. A home for whom?
A. My family.
Q. For your family?
A. My family.
Q. Have you done anything towards making prepara­

tions?
A. I have had a contractor to draw some plans and 

specifications.
Q. Who is that contractor?
A. L. S. Gilliard.



69

Q, Did he make a price as to the cost?
A. Of the plans and specifications?
Q. Yes.
A. He did.
Q. What price did he make for them?
A. One hundred fifty dollars.
Q. That was for drawing the plans?
A. Drawing the plans.
Q. Did he give you the cost of constructing your re­

sidence?
A. We had the figure of—that is available right now, 

he hasn’t quite decided on it, it is around about thirteen 
thousand five hundred I think now.

Q. It is around thirteen thousand five hundred dollars? 
A. Yes.
Q. Are you a Negro?
A. I am.

Mr. Shores:
That’s all.

Cross Examination.

By Mr. Wilkinson:
Q. When did you purchase your property? 
A. I purchased it in about June of 1948.

Mr. Wilkinson:
That is all.

(Witness excused.)



70

L. S. GULLIARD, called as a witness on behalf of the 
Plaintiffs, being first duly sworn, testified as follows:

Direct Examination.

By Mr. Shores:
Q. State your full name, please.
A. Leroy Gilliard, Jr.
Q. What is your occupation?
A. General contractor.
Q. General contractor?
A. Yes, sir.
Q. Are you licensed by the City of Birmingham?
A. Yes, sir, I am.
Q. Were you employed by Howard W. McElrath to 

draw plans and specifications for the purpose of building 
him a home?

A. Yes, sir.
Q. And did you draw those plans?
A. Yes, sir.
Q. How much did you charge him for the plans?
A. One hundred fifty dollars.
Q. Had you arrived at some figure as to the cost of 

building this home for him?
A. Initially it was designed on the basis of ten 

thousand dollars, but with a few additions which have 
been made for minimum family necessities, it has 
reached the range of a fourteen thousand dollar dwell­
ing.

Mr. Shores:
That is all.



71

Cross Examination.

By Mr. Wilkinson:
Q. Neither you nor McElrath have ever applied for any 

building permit, have you?
A. Not I.

Mr. Wilkinson:
That is all.

(Witness excused.)

Mr. Shores:
Your Honor, these other witnesses here will state that 

they own the property described in the complaint, that 
they have not applied for a building permit, but that the 
property they own is located in this particular area, which 
we will show by the Chairman of the Zoning Board is 
located in this area zoned for white.

The Court:
For what purpose do they own the property?

Mr. Shores:
To build on, to build homes on for themselves. They 

will testify to that.

The Court:
And to occupy as residences?

Mr. Shores:
That is right.

The Court:
Well, I don’t know. You will have to put them on to 

show that unless you all can stipulate to that effect.



72

Mr. Wilkinson:
Judge, I don’t know anything about the ownership of 

the property.

Mr. Shores:
I mean we can put them out.

The Court:
All right.

Mr. Shores:
To save time—

The Court:
Just go ahead and put them on.

LOUIS DRAKE, one of the Plaintiffs, being first duly 
sworn, testified in behalf of the Plaintiffs as follows:

Direct Examination.

By Mr. Shores:
Q. Is your name Louis Drake?
A. Yes, sir.
Q. Drake, are you a citizen of the United States?
A. Yes, sir.
Q. Where were you born?
A. I was born in Opelika.
Q. Opelika, Alabama?
A. Yes, sir.
Q. Have you lived in the United States all your life? 
A. Yes, sir.
Q. Are you the owner of Lots 15 and 16, Block 37, that 

is co-owner of Lots 15 and 16, Block 37, according to Dr.



73

Joseph R. Smith’s addition to Birmingham, called North 
Smithfield?

A. Yes, sir.
Q. For what purpose did you buy this property?
A. For dwelling purposes.
Q. For whom?
A. For myself and my family.
Q. Are you a Negro?
A. Yes, sir.

Mr. Shores:
That is all.

Cross Examination.

By Mr. Wilkinson:
Q. When did you purchase it?
A. March this year.
Q. March, 1949?
A. Yes, sir.
Q. All right. You haven’t applied for any permit, have 

you?
A. No, sir.

Mr. Wilkinson:
That is all.

(Witness excused.)

Mr. Wilkinson:
We can shorten this. I just talked with Mr. Byrum. I 

assume the other witnesses will testify they own the pro­
perty, and there is no permit, but I would like to get the 
date of their respective purchases, if they can name that.



74

The Court:
Suppose one of you dictate the stipulation into the re­

cord then which you have agreed on, and then you can ask 
each one of them the date of purchase.

Mr. Wilkinson:
The stipulation is they will testify they own the property 

described in the complaint, and they have not applied for 
any permit.

The Court:
That applies to each one?

Mr. Wilkinson:
All who have not been examined.

Mr. Shores:
And that they purchased it for the purpose of building 

homes for themselves.

Mr. Wilkinson:
All right.

The Court:
All right. That is the stipulation then. I assume that all 

of the parties are—

Mr. Shores:
Negroes.

The Court:
All of those mentioned, that they are all Negroes, and 

that the property is all described in paragraph 4 of the Bill 
of Complaint.



Mr. Shores: 
Yes, sir.

75

The Court:
Is that right?

Mr. Shores:
Yes, sir.

The Court:
All right, that is stipulated then. All you want to ask 

each one of them then is when they bought the property?

Mr. Shores:
Jobie Herbert.

JOBIE HERBERT, one of the Plaintiffs, being first duly 
sworn, testified in behalf of the Plaintiffs as follows:

Direct Examination.

By Mr. Shores:
Q. What is your name?
A. Jobie Herbert.
Q. When did you purchase the property described in 

that complaint?
A. In the month of March.
Q. This year?
A. 1949.

Mr. Shores:
That is all.

(Witness excused.)



76

ULYSSES S. TERRY, one of the Plaintiffs, being first 
duly sworn, testified in behalf of the Plaintiffs as follows:

Direct Examination.
By Mr. Shores:

Q. What is your name?
A. Ulysses S. Terry.
Q. When did you purchase the property described 

in this complaint?
A. October 6, 1948.
Q. Nineteen what?
A. ’48.
Q. October 6, 1948?
A. Yes, sir.

Mr. Shores:
That is all.

(Witness excused.)

A. F. JACKSON, one of the Plaintiffs, being first 
duly sworn, testified in behalf of the Plaintiffs as 
follows:

Direct Examination.

By Mr. Shores:
Q. State your name.
A. My name is A. F. Jackson.
Q. When did you purchase the property which we 

have described here in this complaint?
A. December, 1947.
Q. December, 1947?
A. Yes, sir.



77

Mr. Shores:
That is all.

Mr. Wilkinson:
That is ail.

(Witness excused.)

EMILY MADISON, one of the Plaintiffs, being first 
duly sworn, testified in behalf of the Plaintiffs as fol­
lows:

Direct Examination.

By Mr. Shores:
Q. Your full name is Emily Madison?
A. Emily Madison.
Q. When did you purchase the property described 

in this complaint?
A. January 25, 1949.

Mr. Shores:
All right, that is all.

Cross Examination.

By Mr. Wilkinson:
Q. Did you buy before or after the bombings out 

there?
A. The bombings was in March.
Q. ’49?
A. That’s right. That was before.

(Witness excused.)



78

Mr. Shores:
Will you come around, Mr. Byrum.

GEORGE R. BYRUM, JR., called as a witness on 
behalf of the Plaintiffs, being first duly sworn, testi­
fied as follows:

Direct Examination.

By Mr. Shores:
Q. Mr. Byrum, give your full name, please, sir.
A. George R. Byrum, Jr.
Q. What is your position with the City?
A. I am Chairman of the Board of Adjustment.
Q. Chairman of the Board of Adjustment?
A. That is correct.
Q. What are the duties of that Board?
A. The duties are to hear and administer,—prim­

arily, I wil put it this way, they are to hear appeals 
from a person who is aggrieved by either the build­
ing inspector or any other department of the City in 
the enforcement and the administration of the zoning 
ordinances of the City of Birmingham.

Q. Do you have an official zoning map there of the 
City of Birmingham?

A. I have one, but this is not it.
Q. Can you look at that map as I give you these 

lots and tell me whether or not these lots are zoned 
for white or colored?

A. I can.
Q. Will you state whether or not Block 37 is zoned 

for white or colored?
A. In North Smithfield, Block 37, according to the 

original zoning map of the City of Birmingham, and



79

the present map, is located in a white residence dis­
trict.

Q. And Block 39?
A. Block 39 is located in a white residence district.
Q. Block 38?
A. Block 38 is located in a white residence district.
Q, Block 40?
A. Block 40 is located in a white residence district.
Q. Block 47?
A. Block 47 is in a white residence district.
Q. You heard the time at which these lots were 

purchased. For the last several years this property 
has been zoned for white residence property, has it?

A. That is the basic zoning which was adopted in 
1926 by the City.

Q. Has that zoning been changed?
A. Not in so far as it affects those blocks.
Q. Not in so far as it affects those blocks. And 

those blocks are still zoned for white residences?
A. That is correct.
Q. Who administers or enforces the zoning ordin­

ances?
A. The building inspector of the City of Birming­

ham.
Q. Do you know whether or not it is a violation of 

the law as Chairman of the Zoning or Adjustment 
Board, whether it is a violation of the law for a Negro 
to occupy residences in a white zoned district?

A. It is, according to the present zoning ordin­
ance.

Mr. Shores:
That is all.



80

Cross Examination.

By Mr. Wilkinson:
Q. Mr. Byrum, I believe you said that Birming­

ham was zoned initially in 1926, is that correct?
A. That is correct.
Q. And this territory out there inquired about, that 

you were examined about, Center Street, lies approxi­
mately North and South, does it not?

A. Yes, that is correct.
Q. Now, Block 37 is West of Center Street, and im­

mediately North of 9th Court, is it not?
A. That is correct.
Q. And Block 38 is immediately North of 37?
A. That is correct.
Q. Block 39 is immediately North of 38, is it not?
A. That is correct.
Q. And Block 40 is immediately North of 39?
A. That is correct.
Q. Then Block 47 is immediately West of 39?
A. That is correct.
Q. Now, if you take this three block area here 

North of 9th Court and South of 11th Avenue, 37, 38, 
and 39, immediately West of that for many blocks is 
exclusively white, is it not?

A. Yes, sir.
Q. Zoned white?
A. It is zoned white, that is correct.
Q. Zoned white. That zoning has been in effect 

since 1926?
A. That is correct.
Q. Is this a map of the locality out there, showing 

the zoning with respect to white and colored?
A. That is correct.



81

Q. That is a little larger scale map than the one 
I am going to ask you about directly?

A. Yes, sir.

Mr. Wilkinson:
We want to offer that.

The Court:
Does the dark area indicate the colored and the 

white indicated by the light portion?

The Witness:
There is the legend up there.

Mr. Wilkinson:
The shaded area is Negro, and the other is white. 

Will you mark that as our Exhibit No. 1?

(Defendants’ Exhibit No. 1 was marked for identifi­
cation.)

Q. Did you prepare or have this map prepared un­
der your direction?

A. I did.
Q. And according to the legend there, the white 

residence area is colored yellow, is that correct?
A. That is correct.
Q. And the Negro residence areas in Birmingham 

are colored red?
A. That is correct.
Q. The industrial areas are colored green?
A. That is correct.
Q. And according to the zoning law there are no 

restrictions, no residential restrictions in the indus­
trial area?



82

A. That is correct.
Q. The commercial and light industrial areas are 

light blue, are they not?
A. That is correct.
Q. And according to the zoning laws as they are 

written and in force at the present time, either race 
may occupy the light industrial and commeicial 
areas?

A. That is correct, as shown on this map.
Q. There is a little area here in the southeast 

corner of the map marked “Non-conforming Negro 
residence area existed prior to 1926” , with white back­
ground and red cross lines. Will you explain that to 
the Court?

A. That is 30 acres of territory known as Taylor’s 
Hill in Birmingham. When the City was basically 
zoned in 1926, that 30 acres was occupied by Negro 
residents, but at the time that is was, the basic zon­
ing was made in the City, since it was isolated, and 
that is entirely surrounded by a white residence area, 
it was zoned white, and therefore is considered under 
the provisions of the zoning ordinance as a non-con- 
forming area.

Q. In other words, that has not been disturbed 
since 1926?

A. It has not.
Q. You have there in a rather dark brown shade 

“Negro Business District of Birmingham” , is that 
correct?

A. That is correct.
Q. Does this map correctly portray the respective 

zones or areas that are classified according to the 
legend on the map?

A. According to this legend, it does.



83

Mr. Wilkinson:
We offer the map in evidence as our Exhibit 2.

(Defendants’ Exhibit No. 2 was marked for identifi­
cation.)

Q. Mr. Byrum, have you been over the Negro 
residence areas as shown by the map for the purpose 
of ascertaining the percentage of vacancy in those 
residential areas, that is to say the number of vacant 
lots, lots that would be available for building Negro 
residences in these respective areas?

A. I have.
Q. Can you give us any idea or approximate idea 

of the percentage of vacancy in these different areas? 
Is it uniform or does it vary?

A. It is substantially uniform throughout.
Q. Substantially uniform. Will you tell his Honor 

what the approximate percentage of the area is now 
vacant and available for building, if people want to 
build on it, the Negro area I am talking about, these 
several Negro residential acres shown on the map?

A. According to my best judgment some 90 to 92 
per cent of all of the Negro areas are presently im­
proved, occupied with dwellings. There are several 
small areas in here where the percentage of course 
reduces itself to 50 per cent and 25 per cent, but aver­
aging the whole area, some 90 per cent of it is im­
proved at the present time with dwellings.

Q. That would leave 8 to 10 per cent of each re­
spective area that is vacant and available for im­
provement?

A. That is correct.
Q. Did you make that inspection recently?
A. During last week.



84

Q. During last week?
A. Yes, sir.

The Court:
Let him put a check mark on there indicating the 

percentage of this property that is in question here.

Q. Mr. Byrum, will you check it there?
A. Yes, sir.

Mr. Wilkinson:
That map is offered in evidence as our Exhibit No.

2 .

Q. Mr. Byrum, how long have you lived in Birm­
ingham?

A. All my life.
Q. Well, if you are not sensitive about it and don’t 

mind disclosing it, approximately how old are you?
A. 47 years,
Q. 47 years?
A. Yes, sir.
Q. How long have you been familiar with this ter­

ritory out there that I speak of as Center Street, or 
the Smithfield area that has been in controversy here 
recently?

A. 15 years.
Q. 15 years?
A. Yes.
Q. I will ask you to tell the Court whether or not 

since Birmingham was basically zoned in 1926, I be­
lieve you said.

A. That’s right.
Q. That the zoning areas as fixed and determined 

at that time with respect to white and colored resi-



85

dential sections has been universally respected by 
both races, in so far as they have not been changed 
by the Zoning Board since the town was basically 
zoned in 1926?

Mr. Marshall:
I object to any evidence of any kind as to what the 

people in Birmingham have done voluntarily. There 
is a zoning ordinance that has been on the books for 
26 years. As to whether or not it is agreeable or not 
is not the question before this Court. The question 
is whether this individual Plaintiff has a right to oc­
cupy her individual property, and that is the only 
point before this Court.

The Court:
I will overrule the objection and let the testimony 

in.

A. I will ask you to restate the question.

Mr. Wilkinson:
Will you read it?

(The question was read.)

The Court:
I think I will let him answer that if he can, if he 

knows that.

Mr. Wilkinson:
I am asking him if he knows.

A. In my opinion they have been respected in 
every respect.



86

The Court:
I will exclude his opinion.

Q. How long have you been on the Zoning Board? 
A. Two years.
Q. Two years. Have they been respected since you 

have been on the Board?
A. I beg your pardon?
Q. I say have they been respected since you have 

been on the Board, these areas, by both races?
A. They have, except in the North Smithfield area. 
Q. That is this area that we are talking about 

here?
A. That is correct.
Q. And that arose some time recently, didn’t it?
A. Yes, sir.
Q. Do you know of any challenge having been 

made either by whites or Negroes to the basic zon­
ing in the Smithfield area since 1926?

Mr. Marshall:
I object to whether or not there has been any prior 

objection.

The Court:
I sustain it. As a m atter of fact, there has been one 

case in this Court that involved some property out 
there.

Mr. Wilkinson:
Recently, Your Honor.

The Court:
It has been in the last two years, I think, about two 

years ago.



87

Mr. Wilkinson:
I am trying to draw out of the witness what chal­

lenge if any has been made to it since 1926.

The Court:
If he knows I will let him say.
Q. Do you know of any challenge that has been 

made to it, those areas, since 1926?
A. I know of two. I doubt if I could identify both 

of them, but one I am familiar with.
Q. How long ago was that?
A. Two years ago there was a case that I recall.

Mr. Wilkinson:
That is all.

Re-Direct Examination.

By Mr. Shores:
Q. As a m atter of fact Mr. Byrum the Zoning 

Board recommended that this very area be rezoned 
for Negroes some short time ago, did it not?

A. Parts of it,—part of it.
Q. And that was across Center Street?
A. That is correct.

Mr. Shores:
That is all.

Re-Cross Examination.

By Mr. Wilkinson:
Q. On proper application to your Board, do you 

consider all the facts, and change zoning areas from 
time to time where the facts warrant that?

A. The Board itself can merely recommend to the 
Commission of the City of Birmingham.



88

Q. I see.
A. That is the procedure and the route that we 

follow.
Q. In other words, if I understand it, the appli­

cation is made to your Board for a change, and you 
either approve or disapprove the application, and pass 
it on to the City Commission for final action?

A. In the event of a favorable recommendation.
Q. In the event of a favorable recommendation?
A. By the Zoning Board.
Q. If it is unfavorable, you don’t pass it on?
A. That is correct.
Q. It is correct to say that from time to time, act­

ing on appropriate application and proof in support 
of it, that you modify zoning areas, or change zones?

A. Will you repeat that?
Q. You recommend rezoning I mean.
A. That is correct.
Q. That is what you say has been done out there, 

a portion of this territory has been recommended to 
be rezoned?

A. That is correct.

Mr. Wilkinson:
All right, that’s all.

Re-Direct Examination.

By Mr. Shores:
Q. Was this specific property a part of the Board’s 

recommendation?
A. Not all of it.
Q. But a portion of it?
A. Only a part of it, only a portion of it.



89

Mr. Shores:
That is all.

The Court:
If any changes are made in the zoning ordinances, 

is it your Board that makes those changes?

The Witness: i
No, sir. It is a m atter that the Board has no auth- j ^  

ority to make a change in the zoning ordinance. It j 
must be made by the Commission.

The Court:
The City Commission?

The Witness:
The Commission of the City of Birmingham.

The Court:
Your Board just makes a recommendation?

The Witness:
That is correct, sir.

The Court:
You said the property immediately west of these 

blocks, as I understood you, was zoned for white resi­
dential.

The Witness:
That is correct.

The Court:
The property immediately across the street from it, 

in an easterly direction, is that zoned for Negroes?



90

L- The Witness:
It is.

The Court:
What about the property immediately north of this 

property, it is zoned for Negroes?

The Witness:
It is.

The Court:
V/hat about the property immediately south of this 

property?

The Witness:
Parts of it are, a portion of it.

The Court:
A portion of that is zoned for Negroes, is it?

The Witness:
Yes, sir.

Re-Cross Examination.

By Mr. Wilkinson:
Q. Block 36 is immediately south of 37, is it not? 
A. That is correct.
Q. The map that you are looking at shows Lots 1, 

2 and 3, 14, 15, and 16, in Block 36 are zoned for 
Negroes?

A. That is correct.
Q. Everything west of that is a white zone?
A. That’s right.



91

Q. And also across 9th Avenue, that is to say on 
the south side of 9th Avenue, everything west of 
Blocks 1, 2 and 3, Block 35 on the north half of the 
block, is zoned white, is it not?

A. That is correct.
Q. Graymont School, this white school, is in Block 

31?
A. That is correct.
Q. West of that is still zoned white?
A. That is correct.

Mr. Wilkinson:
All right.

Mr. Shores:
That is all.

(Witness excused.)

Mr. Shores:
I would like Commissioner Morgan to take the 

stand.

JAMES W. MORGAN, called as a witness on be­
half of the Plaintiff, being first duly sworn, testified 
as follows:

Direct Examination.

By Mr. Shores:
Q. Commissioner, your initials are what?
A. J. W.
Q. You are one of the members of the City Com­

mission of the City of Birmingham?



92

A. I am.
Q. You are directly the head of the Department of 

Public Improvements?
A. That is right.
Q. Does the Zoning Board come under your de­

partment?
A. No, the Zoning Board is under the direction of 

the entire Commission. I sign the pay rolls and have 
sort of a supervisory authority, but the actions of 
the Zoning Board have to be approved or disapproved 
by the entire Commission.

Q. Is the building inspector under your depart­
ment?

A. Yes.
Q. He is also under your immediate supervision?
A. That is right.
Q. Do you recall the occasion of the application for 

the Monk residence?
A. Yes.
Q. Did they come in to see you about that applica­

tion?
A. Yes.

I Q. And did you refuse to have Mr. Hagood issue 
the permit on the grounds that it was in a white dis­
trict?

A. That is correct.
Q. And that is your policy?
A. That’s right.
Q. That is no permits are issued to Negroes who 

propose to build homes and occupy them themselves 
in white residential sections?

A. That is correct.

Mr. Shores:
That is all.



93

The Court:
You mean sections that are zoned for whites?

Mr. Shores:
Yes, sir, sections that are zoned for whites, that’s 

right.

Cross Examination.

By Mr. Wilkinson:
Q. Is that policy based on the difference between 

the races as the Commission understands it?
A. I wouldn’t say that, no. No, it is not based en­

tirely on that.
Q. What is it based on, Mr. Morgan?
A. It is based on the custom that we have observed 

throughout the years. I think it is best that we have 
our own areas to live in, our own places of worship 
to attend, schools.

Q. How long have you lived in Birmingham?
A. All my life.
Q. How old are you?
A. 57 years old.
Q. How long have you been familiar with this 

North Smithfield area out there where the controversy 
has been raging over this property?

A. 14 years.
Q. How long have you been a member of the 

Birmingham City Commission?
A. 12 years.
Q. Do you recall back in 1922 or 1923 when there 

was a considerable controversy over whether or not 
Center Street would be the dividing line between 
white and colored settlements?

A. No, sir.



94

Q. You are not familiar with that?
A. No, sir.
Q. Since you have been a Commissioner of the 

City of Birmingham for the past 12 years, have the 
residential areas, white and colored, in Birmingham 
up until recently been well observed by the members 
of both races?

A. They have.
Q. In your opinion, I wish you would tell the Court 

whether or not the zoning ordinance as drafted, ap­
proved and enforced and applied and construed and 
administered has been conductive to public peace and 
order.

Mr. Marshall:
I object if You Honor please. Under ouchanan vei- 

sus Warley that is most certainly not in issue.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception.

The Court:
I will let you offer to show that is true.

Mr. Wilkinson:
Yes, sir, we offer to show that.

Q. Mr. Morgan, if the custom that has been ob­
served here with respect to the residential sections, 
white and colored, by both races since you have been 
on the Commission is iipset or overturned, what in 
your judgment will be the effect on property values,



95

residential property values, in the City of Birming­
ham?

Mr. Marshall:
I object to this question.

The Court;
I sustain the objection,

Mr. Wilkinson:
We reserve an exception, and expect the evidence to 

show that it would result in a very substantial de­
crease in ad valorem residential property values.

The Court:
I will let you make that showing.

Mr. Wilkinson:
That is what I am offering here now.

Q. I would be glad if you would state to the Court 
what in your judgment and opinion as a member of 
the Commission of the City of Birmingham vrould be 
the result on the City finances and its ability to ren­
der municipal services such as fire, police, health, 
street improvements, education, and m atters of that 
kind, if a substantial decrease in municipal revenue 
is brought about by a disregard of the custom that 
has prevailed for 12 years with respect to the residen­
tial zoning?

Mr. Marshall:
I object for the additional reason that is a complex

question with about four answers in it, but the basic 
objection is the same. It goes to the depreciation of



96

property values, and the only depreciation of revenue 
could come about from the depreciation of property. 
The two points are so tied up that I don’t think it is 
proper for either one to be asked.

The Court:
I sustain the objection on the further ground I think 

it is a speculation and prediction, something that no­
body can know.

Mr. Wilkinson:
That is all. We reserve an exception and offer to 

show that it would impair the City’s ability to the ex­
tent that it would probably not be able to render 
those essential services to the extent required and 
necessary and essential for the comfort and conveni­
ence of the citizens.

The Court:
All right.

Mr. Wilkinson:
That is all.

Mr. Shores:
One further question.

Re-Direct Examination.

By Mr. Shores:
Q. I believe you stated also that the refusal was 

made on grounds that the custom was not to move in 
to certain sections, but as a m atter of fact isn t it 
based on the ordinance that we have in question, 
which specifically states that whites should not live



97

in sections set aside for Negroes, and Negroes should 
not live in sections set aside for whites?

A. Most ordinances are based on peace and orded..
I believe, it is my opinion, if that is the way to answer 
it, that it is likely to create disorder.

Q. Well, I believe you misunderstood by question, 
which was that the refusal to issue these permits to 
Mrs. Monk was on account of this ordinance, which 
specifically states that Negroes should not live in dis­
tricts set aside for whites on penalty of—

A. I think you asked just about the ordinance. The j 

ordinance was created to preserve peace and order 
in the community, and for the best interest of all con- [ 
cerned. Yes, that was the reason it was denied.

Mr. Shores:
That is all. That is all we have.

Re-Cross Examination.

By Mr. Wilkinson:
Q. I will ask you, Mr. Morgan, if in your judgment 

and opinion, gained from your knowledge of the situ­
ation, and you have been very active in this North 
Smithfield controversy that has been raging here for 
some time, haven’t you?

A. Yes, sir.
Q. How many bombings have occurred out there 

in that territory?

Mr. Marshall:
Objection as to how many bombings occurred in 

the Smithfield area. That has no bearing whatsoever 
on this case that I could possibly imagine.



98

The Court:
I sustain it.

Mr. Wilkinson:
We reserve an exception.

The Court:
I will let you make an offer though of what you 

propose to show.

Mr. Wilkinson:
We offer to show in this immediate territory there 

have been six bombings. I can’t give the date unless 
Mr. Morgan can give them to you, but recently.

The Court:
Within the last few months would cover it, wouldn’t 

it?

Mr. Wilkinson:
Yes, sir, 1 think so.

Q. Mr. Morgan, I will ask you from your know­
ledge of conditions whether or not in your judgment 
and belief and opinion there is clear and grave and 
present danger to the peace and public welfare in 
Birmingham from the upsetting of the custom that 
has grown up under the zoning laws?

Mr. Marshall:
Objected to.

The Court:
I overrule the objection.
A. Yes, I think it would be very disturbing.



Mr. Wilkinson:
That is all.

The Court:
I want to ask Mr. Morgan a question or two. Did you 

have a committee appointed down there, or work 
with a committee to work this situation out or not?

The Witness:
I did, yes, sir.

The Court:
Was that committee composed all together of white 

people or white people and Negroes?

The Witness:
Shall I tell just briefly how it was?

The Court:
What became of that Board.

Mr. Wilkinson:
Just answer the Judge’s question. He wants to 

know whether the committee was all white or bi- 
racial.

The Witness:
It was all white, and then they called a committee 

of colored people to talk to also.

The Court:
So you had two committees, one from the whites, 

and one from the blacks?



100

The Witness:
Primarily, the first committee was white, to work 

out some sort of a program to try to bring a peace­
ful solution about. It was my purpose—

The Court:
Did those committees go ahead to a completion of 

their work?

The Witness:
In part. They made a recommendation.

The Court:
Are they still working on the m atters?

The Witness:
No, sir.

The Court:
Were they at the time this last ordinance was passed? 

The Witness:
No, this last ordinance was passed after they had 

wound up their work.

The Court:
All right.

Mr. Shores:
One question.



101

Re-Direct Examination,

By Mr. Shores:
Q. As a m atter of fact, Mr. Morgan, the committee 

resigned after this new ordinance was passed, didn’t 
they? I was on that committee.

A. I believe the committee resigned before we 
passed the last zoning ordinance, up on the hill.

Q. Do you mean by the “last one” the one changing 
certain properties from white to Negro, or the one 
where it merely reiterated your old ordinance about 
whites moving into territory where Negroes had been, 
and Negroes moving into territory where whites had 
been?

A. I am not definite on those dates. It was pretty 
close though. It all worked in together.

Mr. Shores:
That is all.

Re-Cross Examination.

By Mr. Wilkinson:
Q. Mr. Morgan, is it not a fact that the City Com­

mission rezoned 35 acres for Negroes as the result 
of the work of the committee?

A. It was as a part of their—as a compromise. 
They didn’t carry out the full committee’s recom­
mendations, but they did release quite a bit of prop- 
perty up there, and changed the zones.

Q. By “releasing the property” , you mean they 
changed the zoning classification?

A. That’s right.
Q. To colored residential property?
A. It was dormant, and we made it alive.



102

Q. I will ask you whether or not the interference of 
the National Association for the Advancement of 
Colored People had any influence on the result of the 
work of the committee, whether it prevented its cul­
mination of that plan?

Mr. Marshall:
I object to this extraneous part that has come into 

the case for the first time. It is irrelevant and im­
material.

The Court:
I brought it in, I guess. I overrule the objection. 

Answer it.

A. We realize that the zoning laws are subject to 
modification and change as circumstances bring that 
about. I believe when the committee for NAACP 
came before the Commission with such forceful de­
mands, I believe it had a strong bearing on the dis­
continuance of any effort to be helpful. It certainly 
had that effect on me.

Q. I will ask you if it is not a fact that the National 
Association for the Advancement of Colored People 
in substance and effect notified the Commission that 
they would not accept any compromise on this prop­
osition, but that segregation had to be abandoned in 
Birmingham?

A. That is correct, and I ask, and they repeated 
it, repeated it several times in the Commission meet­
ing there. I think it was very harmful.

Q. Do you think that made further action on the 
part of the committee futile to that extent?

A. Certainly for the time being.



103

Mr. Wilkinson:
That is all.

Mr. Shores:
Let me ask you this question, Commissioner Mor­

gan.

Re-Direct Examination.

By Mr. Shores:
Q. Did the demands of the Graymont Civic Associ­

ation, which rejected the recommendation of the 
Zoning Board and the committee appointed by you, 
have anything to do with the committee resigning?

A. None whatever.

Mr. Shores:
That is all.

Re-Cross Examination.

By Mr. Wilkinson:
Q. What is the Graymont Civic Association?
A. It is a civic club in that part of the City, a 

very good association.
Q. About what size organization is it?
A. I don’t know, perhaps a hundred, or something 

like that.
Q. Is it composed of residents of that area out 

there?
A. Yes.

Mr. Wilkinson:
That is all.



104

Mr. Shores:
Your Honor, that is our case. I would like to intro­

duce a certified copy of the ordinance, unless Your 
Honor will take judicial notice of it.

The Court:
You can introduce it. I don’t know whether I do or 

not.

Mr. Wilkinson:
What is it?

The Court:
He wants to introduce the ordinance.

Mr. Wilkinson:
Which ordinance?

Mr. Shores:
Ordinance 709F.

Mr. Wilkinson:
I have no objection to it.

Mr. Shores:
Your Honor took judicial notice, in the conclusion of 

law in the other case, as to the other ordinance.

The Court:
I will let you offer this. I don’t know that it is nec­

essary, but you are offering the ordinance No. 709F, 
is that right?

Mr. Shores:
Yes, sir.



105

The Court:
Also Sections 1604 and 1605 of the General Code of 

the City of Birmingham?

Mr. Shores:
Yes, sir.

The Court:
All right. They are in evidence.

EXHIBIT PLAINTIFFS’ # 2 —Ordinance 709-F, 
adopted by the Commission of the City of Birming­
ham, at its Meeting held 8/9/49, (Same as Exhibit 
“A”), Omitted from the Printed Record, being hereto­
fore copied at page 9,

* * * * » * • •

Mr. Shores:
We rest.

Mr. Wilkinson:
All right, Mr. Thompson, will you come around.

N. L. THOMPSON, called as a witness on behalf of 
the Defendants, being first duly sworn, testified as 
follows:

Direct Examination.

By Mr. Wilkinson:
Q. What are your initials?
A. N. L. Thompson.
Q. What is your position in Birmingham?



106

A. Manager, Western Union Telegraph Company.
Q. You were subpoenaed to bring to Court certain 

telegrams specified in a subpoena duces tecum, were 
you not?

A. Yes, sir.
Q. Do you have those telegrams with you?
A. Yes, sir.
Q. Will you let me have them?
A. Yes, sir.
Q. I will ask you if these are telegrams that were 

filed with the Western Union office here in Birming­
ham  for transmission and delivery to the people 
shown on the telegrams?

A. Yes, sir.
Q. To whom they were addressed?
A. Yes, sir.
Q. Can you look at the telegrams and tell us who 

paid for them or what telephones they were charged 
to?

A. Yes.
Q. Tell us what telephones they were charged to.
A. This telegram  addressed to President Truman 

Signed A. C. Maclin, President, Birmingham Branch 
of NAACP, was charged to telephone No. 3-1376.

Q. 3-1376. Do you know what telephone that is?
A. Yes, the National Association for the Advance­

ment of Colored People.
Q. All right.
A. Another telegram  addressed to Tom C. Clark, 

Attorney General, Washington, was charged to 3-1376, 
signed Emory O. Jackson, Executive Secretary, 
Birmingham Branch of the National Association for 
the Advancement of Colored People.

Q. All right.



107

A. Another one addressed to Honorable A. A. 
Carmichael, State Attorney General, at Montgomery. 
This was charged to 3-1376. That is the same tele­
phone. Another one, addressed to President Truman 
is signed J. J. Green, and charged to the same tele­
phone.

Q. J. J. Green is Chairman of the Executive Com- 
Mittee, Birmingham Branch of the NAACP?

A. That is correct. Another one addressed to Hon­
orable Eugene (Bull) Connor. That is signed J. J. 
Green, Chairman of the Executive Committee and 
charged to the same telephone.

We have one addressed to Honorable William T. 
Byrne, House Office Building, Washington, charged 
to 3-1376, signed Emory O. Jackson, Executive Secre­
tary, Birmingham Branch of NAACP, charged to the 
same telephone.

One addressed to Walter White, 20 West 40th Street, 
New York, charged to telephone No. 3-1376, signed 
Emory O. Jackson, Executive Secretary, Birming­
ham Branch, NAACP.

I have another one addressed to Honorable Eugene 
Connor, and charged to 3-1376, signed A. C. Maclin, 
President, National Association for the Advancement 
of Colored People.

I have one addressed to Chief Floyd Eddins, 
charged to 3-1376, signed A. C. Maclin, President, 
Birmingham Branch, NAACP.

Q. Were these telegrams transm itted and deliv­
ered by your company?

A. Yes, sir.

Mr. Wilkinson:
We offer the telegrams in evidence.



108

Mr. Marshall:
We think they are more are less irrelevant, but 

there is no other objection to them.

The Court:
Do you object to them or not?

Mr. Marshall:
No, sir. We don’t object to them.

The Court:
All right, they are in evidence.

Mr. Wilkinson:
The first telegram  which we offer in evidence, and 

I ask Your Honor to have these set out in the record— 
I understand there is some confusion about exhibits, 
and I would like to have them read into the record at 
the same time I read them to the Court, unless you 
prefer to read them yourself.

The Court:
Either way you want to do it.

Mr. Wilkinson:
I will read them. Your Honor has had a cold. One 

is dated August 13, 1949, 1 P. M., Birmingham, Ala­
bama.

“Honorable A. A. Carmichael,
“State Attorney General,

“Montgomery, Ala.

“Racial tensions made acute by Friday night bomb­
ings of two ministers home. Situation demand swift



109

and sure attention. NAACP pleads for your office to 
conduct a thorough investigation of every worthy as­
pect of the problem. Not one of six bombings of Ne­
gro homes solved. Had it been the other way it is 
doubtful outcome would be same. NAACP will not re­
lax its fight against racial zoning laws.

(Signed) J. J. GREEN,
Chairman Executive Com­

mittee, Birmingham 
Branch NAACP.”

(Defendants’ Exhibit No. 3 was marked for identi­
fication.)

Mr. Wilkinson:
The next one is dated August 13, 1949.

“President Truman,
“White House,

“Washington, D. C.

“Violent unsolved bombings of Negro homes rose 
to six Friday night, August 12, in short span. Racial 
tensions sharp enough for unhappy possibilities. Urge 
that the President speak out against these outrageous 
acts and instruct Department of Justice to move 
against the shameful violations of the Negro citizens 
civil freedoms.

(Signed) J. J. Green,
Chairman, Executive Com­

mittee, Birmingham 
Branch NAACP 3-1376.”



110

(DEFENDANTS’ EXHIBIT NO. 4 was m arked for 
identification.)

Mr. Wilkinson:
The next telegram that I shall read is dated August 

13, 1949:

“Honorable Eugene (Bull) Connor,
“Commissioner of Public Safety,

“City Hall,
“Birmingham, Alabama.

“Just three days after you allegedly warned that 
quote we’re going to have bloodshed in this town un­
quote unless white citizens have their way about 
racial zoning homes of two Negro ministers were 
bombed. These two become the sixth Negro homes to 
be bombed. Not one arrest has been made. It could 
be reasoned that such a statem ent as attributed to 
you became the signal for violence. The NAACP con­
demns this shameful act and urges effective local 
action. It will be hard for you to escape some re­
sponsibility for the wanton and lawless dynamiting of 
homes of Revs.. Curry and Deyampert. The NAACP will 
continue its legal moral fight for the rights of one 
to live where he owns or rents without disturbance by 
hostile citizens or molestations by law enforcement. 
We urge 24 hour protection for every Negro home in 
the Smithfield area.

(Signed) J. J. GREEN,
Chairman, Executive Com­

m ittee.”



I l l

(DEFENDANTS’ EXHIBIT NO 5 was marked for 
identification.)

Mr. Wilkinson:
Another telegram dated August 13, 1949:

“Attorney General Tom Clark,
“Department of Justice,

“Washington, D. C.

On behalf of 210,000 Negro citizens the Birmingham 
NAACP Branch urges thorough investigation in the 
bombings Friday night, August 12, of Reverends Dey- 
ampert and Currys home. Six Negro homes bombed 
over short period without single arrest. Racial ten­
sions inflamed by unfortunate utterances by one pub­
lic official. Three days after Commissioner allegedly 
said quote we’re going to have more bloodshed in 
this town unquote in connection with the racial zon­
ing question violence came. Repeated requests have 
been made to you for federal action.

(Signed) J. J. GREEN,
Chairman, Executive Com­

mittee, Birmingham 
Branch, NAACP 3-1376.”



112

(DEFENDANTS’ EXHIBIT NO. 6 was marked for 
identification.)

Mr. Wilkinson:
Another telegram  to Honorable Jimmy Morgan:

“Honorable Jim my Morgan,
“Commissioner of Public Improvement,

“City Hall,
“Birmingham, Alabama.

“The NAACP strongly condemns the outrageous 
bombings Friday night of homes of Rev. Curry and 
Deyampert in Smithfield area. We feel that you share 
part of the responsibility for this situation. The 
NAACP will fight without let up all forms of racial 
zoning because such is unlawful. We shall continue 
to support and encourage Negro citizens to stand 
firm at all cost and sacrifices for the precious right 
to own and live where one can buy or rent. NAACP 
urges round the clock protection for Negro citizens 
in Smithfield area. Not one of six bombings of Negro 
homes have been cleared up. NAACP urges swift 
apprehension and punishment for the guilty.

(Signed) J. J. GREEN,
Chairman, Executive Com­

mittee, Birmingham 
Branch, NAACP 3-1376.”



113

(DEFENDANTS' EXHIBIT NO. 7 was marked for 
identification.)

Mr. Wilkinson:
The next telegram  is dated August 13, 1949:

“Honorable Cooper Green,
“President, City Commission,

“City Hall,
“Birmingham, Alabama.

“Our city has been shamed by bombing Friday 
night of two Negro ministers home. Some state­
ments attributed Tuesday to a member of the Com­
mission were obviously an invitation to violence. It 
seems hard however for you and the other City 
Fathers not to share some responsibility for this out­
rage. Of six Negro homes bombed not a single case 
solved. The NAACP vigorously condemns this and 
other forms of hostility and violence against Negro 
citizens. We urge day and night police protection for 
the Negro homedwellers in Smithfield area. The 
NAACP will continue its legal fight against racial 
zoning.

(Signed) J. J. GREEN,
Chairman, Executive Com­

mittee, Birmingham 
Branch NAACP 3-1376.”



114

(DEFENDANTS’ EXHIBIT NO. 8 was marked for 
identification.)

Mr. Wilkinson:
The next telegram  is dated August 13, 1949:

“Sheriff Holt McDowell,
“Courthouse,

“Birmingham, Alabama.

“With two bombings Friday night, August 13, in 
Birmingham the number has risen to six unsolved 
bombings of Negro homes. The community has been 
inflamed by unfortunate statements attributed to at 
least one city public official. Birmingham Branch 
NAACP calls on your office to Investigate these out­
rageous bombings.

(Signed) J. J. GREEN,
Chairman, Executive Com­

mittee, Birmingham 
Branch NAACP 3-1376.”

(DEFENDANTS’ EXHIBIT NO. 9 was marked for 
identification.)

Mr. Wilkinson:
The next telegram is to Honorable William T. 

Byrne, House Office Building. This telegram seems 
to be dated, it says June 23, but I don’t see the year.

The Witness:
’49.



Mr. Wilkinson: 
June 23, 1949:

115

“Honorable William T. Byrne,
“House Office Building.

“Clancy Lake Birmingham News Reporter must by 
all means be summoned to appear before committee 
now investigating KKK activities in Birmingham. He 
knows more than anyone else in Alabama about the 
illegal activities, bombing and floggings.”

That is signed Emory O. Jackson, Executive Secre­
tary, Birmingham Branch of NAACP.

(DEFENDANTS’ EXHIBIT NO. 10 was marked for 
identification.)

Mr. Wilkinson:
Another telegram, dated June 23, 1949, addressed 

to Walter White, 20 West 40th Street, New York:

“Pressure needed to have the House Judiciary Sub- 
Committee to summons Reporters Clancy Lake of 
Birmingham News to testify about Klan activities in 
Birmingham and the state. He has more direct infor­
mation than any other person in Alabama. His tes­
timony would break the wall of secrecy guarding the 
invisible empire.”

That is signed Emory O. Jackson, Executive Sec­
retary, Birmingham Branch of NAACP.



116

(DEFENDANTS’ EXHIBIT NO. 11 was marked for 
identification.)

Mr. Wilkinson:
Another telegram  dated June 2. Is this 1949 also? 

The Witness:
Yes, sir, all of those are 1949.

Mr. Wilkinson:
All these are 1949?

The Witness:
Yes, sir.

Mr. Wilkinson:
June 2, ’49:

“Honorable Eugene Connor,
“7806 1st Avenue North.

“On behalf of the eight thousand members of Birm­
ingham Branch NAACP we urge continued round the 
clock police protection for homes of Reverend Curry 
and Reverend Deyampert and other Negro citizens 
in the contested Smithfield area. Any harm  that 
comes to either minister due to lack of adequate pol­
ice protection will be a responsibility for which you 
and your department will have to answer to public 
opinion. The NAACP membership in session Thurs­
day night voted that this telegram  be sent to you.”

That is signed A. C. Maclin, President, National 
Association for the Advancement of Colored People.



117

(DEFENDANTS’ EXHIBIT NO. 12 was marked for 
identification.)

Mr. Wilkinson:
The next telegram  that I read is dated June 2, 1949, 

and is addressed to Chief Floyd Eddins, 1244 South 
West 15th Street “AM delivery OK” :

“A situation exists growing out of controversy over 
racial residential zoning which demands hourly police 
protection for Reverend Milton Curry of 1100 Center 
Street North and Reverend E. B. Deyampert of 1104 
Center Street North. We urge you as Chief of Birm­
ingham Police Department to provide this protec­
tion.”

That is signed A. C. Maclin, President, Birmingham 
Branch, NAACP.

(DEFENDANTS’ EXHIBIT NO. 13 was marked for 
identification.)

Mr. Wilkinson:
The next telegram  I read is dated May 23, 1949: 

“Tom C. Clark,

“Attorney General, Department of Justice.

“Urge conspiracy prosecution in case where Willie 
German of 1100 North 11th Avenue denied occupancy 
of his home by threats and acts of Birmingham public 
officials May 21, 1949.”



118

That is signed Emory O. Jackson, Executive Secre­
tary, Birmingham Branch of National Association for 
the Advancement of Colored People.

(DEFENDANTS’ EXHIBIT NO. 14 was marked for 
identification.)

Mr. Wilkinson:
The next telegram  is dated June 2, 1949, night letter:

“President Harry S. Truman,
“White House,

“Washington, D. C.

“Because of fear that local police protection is 
breaking down in Smithfield area where racial zon­
ing contest has provided controversy, the Birming­
ham  Branch of NAACP voted Thursday night to bring 
this to your attention.

“We urge that the prestige of the White House be 
thrown behind efforts of Negro citizens to have pro­
tection here where their civil liberties are being 
threatened.

(Signed) A. C. MACLIN,
President, Birmingham 

Branch of NAACP.”

(DEFENDANTS EXHIBIT NO. 15 was marked for 
identification.)

The Court:
Those telegrams are in, but I don’t see where they 

have any bearing on any issue in this case.



119

Mr. Wilkinson:
If Your Honor wants me to stop and argue that 

question now I can do it, or I can take it up in the 
argument.

The Court:
No, they are in without objection.

Mr. Wilkinson:
Do you want those telegrams to take for your re­

cords?

The Witness:
I would like to have them back.

Mr. Wilkinson:
Would it be agreeable to let this gentleman take 

them and have them photostated and substitute pho­
tostats for them?

The Court:
That’s all right, or either let the Reporter copy 

them.

The Witness:
We will leave them.

Mr. Wilkinson:
Just leave them and let the Reporter copy them, 

and when he gets through copying them we will see 
that they are returned to you. Thank you. You may 
take the witness.



120

Mr. Shores:
No questions.

(Witness excused.)

E. A. CAMP, JR., called as a witness on behalf of 
the Defendants, being first duly sworn, testified as 
follows:

Direct Examination.

By Mr. Wilkinson:
Q. Is this Mr. E. H. Camp, Jr.?
A. E. A.
Q. E. A. Camp, Jr.?
A. That’s right.
Q. And you are connected with the Liberty Life 

Insurance Company of Birmingham?
A. Liberty National Life Insurance Company.
Q. Liberty National?
A. Yes, sir.
Q. What is your connection with that company, 

Mr. Camp?
A. Vice President and Treasurer.
Q. Vice President and Treasurer?
A. Yes, sir.
Q. Do you handle investments for your company? 
A. Yes, sir.
Q. Are you acquainted with its policy with refer­

ence to making loans on white and colored property 
in Birmingham and elsewhere?

A. Yes, sir.
Q. Does your company make loans on white res­

idential property and colored residential property



121

where in your opinion it is properly located, and is 
good security for a loan?

A. Yes, sir.
Q. How long have you been connected with the 

Liberty National Life Insurance Company,—I believe 
it is?

A. Liberty National Life Insurance Company.
Q. How long have you been connected ■with that 

company?
A. 17-% years.
Q. Have you had experience in appraising proper­

ty?
A. Yes, sir.
Q. Are you familiar with the rules that appraisers 

follow in arriving at what they consider to be a fair 
appraisal value of property?

A. Yes, sir.
Q. Just what experience have you had in apprais­

ing property, Mr. Camp?
A. My experience has been in the main in review­

ing the appraisals of the appraisers whose appraisals 
are sumitted in connection with a proposed loan.

Q. I see.
A. I have not had the actual experience of ap­

praising myself, but reviewing appraisals in connec­
tion with investments.

Q. When an appraisal is made, and an application 
is made for a loan, you review that to determine 
whether or not the appraisal is in line with what your 
opinion is about the m atter?

A, That’s right.
Q. What is the policy of the Liberty National Life 

Insurance Company with reference to making loans 
on white and colored residential property?



122

Marshall:
Objection.

Q. What has been its policy for many years?

The Court:
I sustain it.

Mr. Wilkinson:
We except. We want to show by this witness and 

other witnesses, if Your Honor please, that the policy 
of the companies is that they loan on white residential 
property where it is zoned white; they loan on colored 
residential property where it is zoned colored; they 
do not loan on property that is in a mixed zone or in 
a twilight zone, or in the path of being changed from 
one classification to the other. That stabilized condi­
tions is one of the main factors taken into considera­
tion in making loans on property.

The Court:
That is all right. You have that offer to show. I 

am willing for you to have that offer to show that 
that is the policy of all other lending agencies.

Mr. Wilkinson:
Yes, sir, it is the policy of all the insurance com­

panies here. Then I have building and loan associa­
tion officials, mortgage company officials, trust com­
pany officials, and other financial people, bankers 
and others, to show that that had been the pattern 
and policy that has been followed in Birmingham for 
many, many years, and not only in Birmingham but 
elsewhere.



123

The Court:
You can have a showing that they would testify 

to that without putting them on the stand, if you 
want it.

Mr. Wilkinson:
All right.

Q. Mr. Camp, in your opinion, I wish you would 
tell the Court what effect the invasion of a white resi­
dential zone by Negro citizens has on the appraised 
value and fair m arket value of property in Birming­
ham?

Mr. Marshall:
Objection.

The Court:
I sustain the objection.

Mr. Wilkinson:
We except and offer to sow it varies, causing depre­

ciation from 25 to 50 per cent, according to locality. 
I believe that is all, Mr. Camp.

Mr. Shores:
No questions.

(Witness excused.)



124

W. COOPER GREEN, called as a witness on behalf 
of the Defendants, being first duly sworn, testified 
as follows:

By Mr. Wilkinson:
Q. Is this Mr. W. Cooper Green?
A. Yes, sir.
Q. Are you President of the Commission of the 

City of Birmingham?
A. Yes, sir.
Q. The Commission of Birmingham is the govern­

ing body of the City?
A. Yes, sir.
Q. Composed of three members?
A. That is right.
Q. What department do you have special super­

vision over?
A. I have the financial department, the parks and 

playgrounds, the stadium and dog pound. I have a 
mixture of miscellaneous departments, the legal de­
partm ent, and miscellaneous other departments, 
about twenty of them.

Q. Mr. Green, how long have you been a resident 
of Birmingham?

A. All my life.
Q. About how long is that?
A. 49 years.
Q. Are you familiar with the territory out here 

known as the controversial area in the North Smith- 
field portion of the City, Center Street?

A. Yes, sir, I lived in Graymont-College Hills area 
from 1922 to 1936. I was a resident of that area.

Q. You actually lived there about 14 years?
A. Yes, sir. I don’t now, but I did then.



125

Q. You have lived in the City continuously during 
that time?

A. Yes, sir.
Q. Do you remember a controversy arising be­

tween the white and colored people along in 1922 or 
1923 about whether Center Street would be the divid­
ing line between the white and colored settlements out 
there?

A. Yes, sir, I was at the meeting.
Q. Sir?
A. I was at the meeting.
Q. You were at the meeting?
A. Yes, sir.
Q. Will you tell the Court what was finally re­

solved and agreed on at that meeting, and what has 
been done with respect to it since?

A. In 1923 there was a committee representing the 
Graymont, what they called the Graymont Civic As­
sociation then, which met at the Graymont gram m ar 
school, and they got together with a colored commit­
tee, and then the City Commission, Mr. Jimmie Jones 
I believe was the head of it at that time, I am not 
sure, met with these people, and they worked out a 
compromise and agreed on Center Street as the divid­
ing line, except one little strip down at the 8th Avenue 
end of Center Street, which was zoned colored later 
by the Zoning Board in ’26.

Q. When you say “We agreed on a compromise of 
Center Street as a dividing line” , do you mean that 
west of Center Street was to be whites and east of 
Center Street was to be colored?

A. Yes, sir, with some exceptions east of Center 
Street. Up at the north end of Center Street there was 
some there left white because there were a few white 
scattered residential acres, and a lot of vacant areas.



126

Q. That was in 1923?
A. Yes, sir.
Q. Has that settlement been observed and abided 

by generally by the citizens in that area?
A. It has.
Q. From that time until this controversy arose?
A. Yes, sir.
Q. I want to show you a document or two here be­

fore I forget it. In 1947 there was a document pre­
pared which I will show you presently, and I wanted 
to ask you whether or not you had anything to do 
with its preparation and distribution. I think your 
name is on it, but we will wait until they get through 
looking it over.

I will ask you to look at this document which reads: 
“Presented by President Cooper Green of the City 
Commission, Birmingham, Alabama. Facts and Fig­
ures about the City, of Interest to the Citizens of 
Birmingham. 1947.”

A. Yes, sir.
Q. Did you prepare that document or have it pre­

pared or was it prepared under your supervision?
A. It was prepared under my supervision after 

getting information from the various departments of 
the City Government.

Q. That was in the nature of a report by you to 
the citizens of Birmingham of the condition of af­
fairs at that time?

A. Yes, sir.
Q. Was the information reported there true and 

correct according to the best of your knowledge, judg­
ment and belief at that time?

A. Yes, sir, the figures came from the record.



127

Mr. Wilkinson:
I offer the document in evidence as Defendants’ Ex­

hibit 16.

(Defendants’ Exhibit No. 16 was marked for identi­
fication.)

Mr. Marshall:
If Your Honor please we object. The document 

contains what purports to be a selection of figures 
concerning a number of schools, number of police­
men, and other figures. In the first place, it is not 
the best evidence. In the second place it is certainly 
immaterial in this case as to how much the City of 
Birmingham spends on its municipal services. I 
can’t see the relevancy to the issue in this case.

Mr. Wilkinson:
That has relevancy from two or three different an­

gles.

The Court:
In what respect?

Mr. Wilkinson:
One, to show the amount of money th a t is needed for 

the services rendered. Second, it is a circumstance 
showing that there is no discrimination against the 
Negro race here. It is our theory that the zoning or­
dinance certainly must be upheld until it is shown 
that there is descrimination.

The Court:
I sustain the objection.



128

Mr. Wilkinson:
We reserve an exception. What is that exhibit num­

ber?

The Clerk:
1 6 .

(Said exhibit is as follows:)

Population 1940 - 1947.

1940 1947
(Estimated)

267,583 41% Negro 312,000 43% Negro

Metropolitan Area
1940 1947

(Estimated)
4 0 7 ,8 5 1  512,000

Owner Occupied Property.

Census Returns of 1940.

Census figures of 1940 show 21,324 owner occupied prop­
erty units (not tenant occupied); of this figure, 4,434, or 
21% are Negro owned.

Finance.

The City’s total Revenue for the Fiscal Year
that ended August 31, 1947, w a s .............. $11,988,694.37

The City’s 1947 Per Capita Revenue for all 
purposes (using an estimated population of 
310,000), was ............................................. $ 38.67



129

The City’s 1947 Per Capita Expenditures for 
all City Activities, was ...............................$ 37.31

Per Capita Expenditures less than Per Capita
Revenues....................... ............................. $ 1.36

The Average Family of 4>% Persons had a 
1947 total cost of City Government 
amounting to ............................................$ 167.90

This amounts to less than 46 cents per day, for the en­
tire family. For that 46 cents, the family had all the ben­
efits and opportunities embraced in fine School and Li­
brary Systems; good Police and Fire Protection; excellent 
Health and Sanitation service and supervision; various 
protective Inspectional services such as Building, Plumb­
ing. Electrical, Weights and Measures, etc.; all kinds of 
public recreational privileges and services, together with 
many other lesser public services.

These figures, as explained above, apply to expenditures 
for services to both races on equal basis.

Schools.

Enrollment as of February 13, 1948:
Total .........................
White pupils . . . . . . . . . .

. . . .  44,479 

. . . .  25,195 57%
Negro pupils ............. . . . . .  19,284 43%

Number of Schools:
White Negro Total

High Schools ............... 6 2 8
Elementary Schools . . . . . .. . 37 25 62

Total Day Schools .... . . .  43 27 70



130

Night Schools ...................... 1 1
Evening Vocational Centers 3 3
Part time Vocational Schools 3 3
Veterans Institute .............. 1 1 2

School Organization, 1947-48
Administration .................... 28 28
Instructional ........................ 1077 525 1602
Operation and Maintenance. 60 279 339

Total ............................... 1165 804 1969
Veterans’ Training ............. 72 54 126

Salaries,

The Board of Education has a single salary schedule
based on education. White and Negro teachers are em-
ployed now on the same basis.

Interest of the Negro teachers in educational standards 
is shown by the number taking advanced work leading 
toward degrees in education. They have raised their edu­
cational qualifications in the last year more than 50%. An 
increasing number are taking degrees each year.

The Bond Issue for schools, authorized in 1945, provided 
$7,000,000.00 to be used in construction and improvements. 
This money was earmarked for white and Negro schools 
on a population and enrollment basis of 56.29% for white 
schools and 43.7% for Negro schools. The State has sup­
plemented this by two appropriations, one in 1945 for 
$774,760.00 and another in 1947 for $835,381.00. We now 
have a total of $8,610,141.00 from bond funds and State 
appropriations.



131

Due to the high cost of materials and shortage of labor, 
construction under this program has been delayed. Urgent 
need in some parts of the City has been met by contracts 
for four (4) class rooms, a temporary lunch room, and two 
(2) toilets at Woodrow Wilson School (white), and for the 
30th Street School (Negro), eleven (11) class rooms, prin­
cipal’s office, four (4) toilets and boiler room. Working 
drawings and specifications are nearly completed for two 
other Negro Elementary schools, one, a new building on 
13th Street and 5th Avenue South, with seventeen (17) 
class rooms, temporary lunch room, auditorium, principal’s 
office and teachers’ rest room, four (4) toilets and boiler 
room, and one in East Birmingham with eight (8) class 
rooms, temporary principal’s office, four (4) toilets and 
boiler room. All of these buildings are of brick and con­
crete fire-resistive construction, and of two story standards 
as specified for white schools.

Public Health.
The Health program of the City ranks high and is con­

sidered one of the best in the country. We have visitors 
from other countries who come to Birmingham to study 
our Health Department. The City Commission, during my 
term, has supported this program and increased the appro­
priations for this Department.

Hillman Hospital.

(County Agency)

Negro patients ............................     6827
White patients .........................................................  3979
Percentage of Negro patien ts..................................  63.2%

For year ending December 31, 1947.



132

Red Mountain T. R, Sanatorium.

Negro patients .......................    149
White patients .......................................................... 252
Percentage of Negro patients ................................  37.2%

For year ending December 31, 1947.

Slossfield T. B. Clinic.

Number of visits made by Health Department
nurses ................................................................. 16,707

Percentage of Negroes.............................................  100%

Other Health Clinics, Visits Made.

Negroes ....................................................................  32,931
White .........................................................    18,972
Percentage of Negroes.............................................  63.4%

George Eaves T. B. Clinic.

Negro patients .........................................................  1020
White patients .........................................................  1266
Percentage of Negroes.............................................  44.6%

Home Nursing Service.

Number of Negro nurses.........................................  33
Number of white nurses .........................................  25
Percentage of Negro nu rses.................................... 56.9%
Negro patients visited ............................................  41,642
White patients visited ............................................ 24,670
Percentage Negro patients visited ...........................  62.7%



133

Rapid Treatment Center 
(Syphilis Cases Referred by Health Department)

White patients ....... ...................... .......................... 322
Negro patients ......................................................  1,734
Percentage of Negroes ............................................  84.3%

Slossfield Maternity Service.
Number of deliveries ................................ 488
Percentage of Negroes ............................. ..............  100%

Libraries.
Readers:

Booker T. Washington Library ........................ 27,305
Slossfield Library ...........................................  2,721

Books read:
Booker T. Washington Library .................  82,182
Slossfield Library ....................    26,006

Number of books:
Booker T. Washington Library ....................... 18,041
Slossfield Library ............................................. 4,127

Type of books read:
Religious, Technical and other non-fiction 

books are in the majority.

Municipal Auditorium.
Rentals, fiscal year ending August 31, 1947 . . . . . . .  245
Negro Spiritual S ings.............................................  27
Negro Dances (Home Bands) ................................  8

Total Negro Rentals ..................... ..................  35



134

Parks and Playgrounds.

Community Centers on full time basis:
Slossfield 
McAlpine Park

Summer Playgrounds:
McAlpine Park 
Maclin Park 
Pratt City Park 
Tuxedo Park 
Memorial Park 
Slossfield

Swimming Pools:
Tuxedo Pool

Department of Public Welfare.

The City’s appropriation for this Department has grown 
from $112,400.00 in 1940 to $242,880.00, for the present 
fiscal year.

Assistance to Various Groups by Race 

(Approximate Figures)

Negro White
Old Age (assistance) ....................................  40% 60%
Blind (assistance) .......................................  75% 25%
Dependent Children (care) .........................  50% 50%
Temporary Relief (emergency assistance). 50% 50%
Handicap Assistance.................................... 50% 50%
Boarding Care for Children .......................  10% 90%



135

Veterans Emergency Housing Program.

Negro Units—Acipco ..................................................  136
White Units— Airport Barracks ........    410

Housing Authority.

We have three white projects and two Negro projects, 
or a ratio 3 to 2.

Negro Units Units
South Tow n...........................................................  43®
Smithfield ....................... ....................................  512

Total .............................................................  992

White Units
Elyton Village ...................................................... 861
Central City ................................................. - • • ■ 943
Eastwood ................................................    380

Total ..............     2,074

Police Department.

Birmingham’s Police Department ranks high in the pre­
vention of crime and the protection of lives and property. 
They are well trained and are courteous and considerate in 
the discharge of duty.

Personnel of the Police Department.

21 
36 
21

Officers . . . .  
Detectives .. 
Motor Scouts



136

Wreck Investigators ..................    3
Patrolmen ......................    205
Clerical Force..................   18
Paint Forem an.......................................................  1
Radio Technicians .........................    10
City Physicians ..............   1

316

Fire Department.

Number of Alarms ...........      3961

Approximately 50 in Negro sections.

The Fire Department has a total of 357 men engaged in 
the protection of lives and property.

Motor Propelled Apparatus in Service.

3 Pumping Engines 1000 Gal. Capacity 
21 Pumping Engines 750 Gal. Capacity 
3 Pumping Engines 500 Gal. Capacity 
2 100 Ft. Aerial Ladder Trucks 
1 65 Ft. Service Aerial Truck 
1 City Service Hook & Ladder Truck 
1 65 Ft. Water Tower 
1 Light Truck
A total of 33 pieces of Motor Apparatus in service. 

Apparatus in Reserve.

2 Pumps 750 Gal. Capacity 
1 Pump 1000 Gal. Capacity 
1 Pump 600 Gal. Capacity



137

3 Pumping Engines of 750 Gal. Capacity
1 City Service Truck
4 Combination Hose Wagons, equipped with 500 gal. O. 

C. D. Pumps.

In addition to the above there is (1) automobile for the 
Chief, (7) automobiles for Assistant Chiefs, (4) automo­
biles for Supt. of Fire Alarm, Mechanics, Chief Fire In­
spector, (2) Pick-up trucks, for Carpenter and Hydrant In­
spector, (1) truck for Fire Alarm System.

Streets and Highways.

Streets Paved ....................
White sections, approximately 
Negro sections, approximately

Miles
3.05 
1.00
2.05

Many Negro sections have paved streets and sidewalks 
and through the efforts of the residents have improved 
their homes and contributed much to the beautifying of 
our city.

Garbage Collection.
Birmingham has kept pace with the times in her garbage 

collection program, with modern equipment and trained 
crews. Garbage collection is on the same basis in both 
white and Negro neighborhoods.

Street Lighting.

For calendar year ending December 31, 1947:

Net increase of lights in residential districts. . . . .  208
Net increase in Negro residential sections . . . . . .  67
Percentage of new lights in Negro sections . . . .  32%



138

Whiteway and Thoroughfare Lights.

Whiteway lights are installed in major business districts 
and benefit all alike. Thoroughfare lights are used in 
Traffic Thoroughfares and are used by both races.

Whiteway and Thoroughfare Lighting.

Miles
Whiteway Lighting ..................................................  10.5
Thoroughfare Lighting ............................................. 28.28

Number
White way L igh ts.......................................................  1140
Thoroughfare L ights..................................................  1542
Total number of lights of all types in service......... 7361
Number of lights installed since March 1st, 1940 . . . .  2310

Q. Mr. Green, I hand you another document, “The 1948 
Municipal Tax Dollar, Condensed Statistical and Opera­
tional Data.” I will ask you if that information was pub­
lished and distributed to the citizens of Birmingham by 
order and direction of the Commission of Birmingham?

A. Yes, sir.
Q. Are the facts and figures cited in there true and cor­

rect?
A. Yes, sir, they are gotten up by the City Comptroller 

and approved by the Certified Public Accountant that ex­
amined our books for the year, and certified to them.

Q. You are required to make, under the law, as I un­
derstand it, a report to the taxpayers?

A. Yes, sir.
Q. At stated intervals, and that is one of those reports 

that you made?
A. Yes, sir, each year.



139

Mr. Wilkinson:
We offer that document in evidence, Defendants’ Ex­

hibit 17.

(Defendants’ Exhibit No. 17 was marked for identifica­
tion.)

Mr. Marshall:
The same objection.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception.

(Said exhibit is as follows:)

Birmingham, Alabama.

“Down Deep in Dixie”

The 1948

Municipal Tax Dollar

Condensed Statistical 
and

Operational Data

Complete detailed information of the City’s fiscal opera­
tions for the year ended August 31, 1948, is contained in the 
City’s printed Annual Fiscal Report. A copy of that report 
can be had on request to the City Comptroller.



140

This supplemental report has been prepared by: C. E. 
Armstrong, City Comptroller; Cooper Green, President of 
the City Commission; J. W. Morgan, Associate Commis­
sioner; Eugene (Bull) Connor, Associate Commissioner.

%



141
The City’s Revenues for All Current Funds, plus the Ad Valorem Property 

Tax Revenue for the General Sinking Fund 
For the Fiscal Year that ended August 31, 1948.

C H A R T  S H O W IN G  T H E  S O U R C E  O F  T H O S E  R E V E N U E S

No. In
Chart

6
78
9

10 
11 
12
13
14
15
16
17
18
19
20 
21 
22
23
24
25

Revenues Classified by Source
Property Ad Valorem Taxes—City Levy.................................................... $
Sharing of State and County Property Ad Valorem

Taxes levied for School Purposes............................................... -.............
City Schools sharing of State Sales Tax, Poll Tax,

Tobacco, Public Utility, Severance and other Special Excise Taxes
Licenses — Occupational ................................................................................
Liquor and Beer Taxes ..................................................................................
Tobacco Tax — City’s sharing of County Levy........................................
Gasoline Tax — City’s sharing of County lc  Levy............................ ......
Court Fines and Forfeitures ..........................................................................
Special Service Charges — Building, Electrical,

Gas and Plumbing Inspections ..................................................................
Non-Resident Schol Tuitions, Special School Fees, Etc................... -.....
Sharing of Bank Excise Tax..........................................................................
Street Department — Charges for Paving Repairs.—................ -......... -
Rentals — Social Security Building..............................................................
Park Revenues — Golf, Swimming, Etc................. ....................................
Franchises — Streets .......................................................... ................. -........
U. S. and State of Alabama Appropriations for Vocational Training
Miscellaneous Unclassified Revenues ..........................................................
Municipal Auditorium — Rentals, Concessions, Etc................................
Rentals — Various Miscellaneous City Properties..................................
bale of Capital Assets .....................................................................................
Airport Revenues ........................................................................-....................
Special Service Charges (other than item 9)............................................
Interest on Investments ..................................................................................
Sharing of State Gasoline Tax ...............................................................-.....
■Library — Book Rentals, Fines, Etc...........................................................

Canitai Mj.0Ve Schedule does not include any Receipts from the Industrial Wa 
•Building Funds, Special Assessment Funds, or the many City Trust Funds.

Percentage
Of Total

Total As Shown
Revenue In Chart

? 4,387,620.13 30.98

1,069,559.98 7.55

2,298,984.58 16.23
2,357,017.09 16.64
1,383,006.79 9.77

511,057.57 3.61
492,662.29 3.48
412,890.75 2.92

180,169.76 1.27
148,438.11 1.05
129,859.39 .92
118,022.81 .83

92,747.46 .65
88,783.46 .63
83,753.89 .59
69,100.39 .49
57,193.17 .40
49,247.36 .35
43,678.11 .31
42,056.71 .30
38,610.90 .27
37,432.84 .26
29,836.51 .21
27,103.66 .19
13,951.22 .10

.$14,162,784.93 100%

rial Water Works Operation,



142
The City’s Expenditures from All Current Funds, plus the Appropriation 

to the General Sinking Fund for the purpose of paying 
Maturing Bonds and All General Bond Interest,

For the Fiscal Year that Ended August 31, 1948
C H A R T  SHOW INCx T H E  P U R P O S E  F O R  W H IC H  T H O S E  E X P E N D IT U R E S

W E R E  M A D E

No. In 
Chart
1
2

3
4
5
6

8
Q

10
1112
13
14
15

16
17
18

19

Expenditures Classified by Purpose

Education -School Operation Exclusive of
School  ̂ Bond Debt Service...................... 1............

'< x?rOI)1?a^on General Sinking Fund to pay 
Maturing Bonds and all General Bond Interest

.hire Department ..........................................
Police, Prison and Courts............................
Capital Construction - - New Buildings.................
Highways .......................

j Administration: • City Commission, Comptroller’s’’Dept’’,’ 
t e i . 11? - '  ^  Hall, Auditorium, Auto Repair Shop, Civil 
Service, Tax & Research Costs, City Planning, etc.

Park and Recreation Activities--General Park Activities,..............
Playground, Swimming, Golf, Etc...........................

Health and Sanitation:
(a) Ordinary Health Activities .............
(b) Miscellaneous Health Activities ......ZZZZZZ!!...................
(c) Garbage and Incineration ..............Z Z 'Z Z Z I ....................
(d) Street Cleaning, Sewer Maintenance, Etc.....

Appropriations to Employee’s Pension Funds ..
Public Welfare Costs — Charity................ ..............
Group Life & Casualty Insurance for Employees...............................
Public Libraries ...................................... ...... '.....................
Street Lighting
inspection Services — B u il^ r ff l« ^ c S 7 p ii ijS M n » ;....Weights & Measures, Etc.
Social Security Building — OperalioVr'andldainlenaYce
Miscellaneous Unclassified Expense
Municipal Airport ................................ .....................................

TOTAL EXPENDITURES .........
Excess Revenues over Expenditures — Added to Surplux

Total
Expenditures

.$ 5,110,564.38

. 1,584,505.12
1,180,950.02 

. 1,137,769.28
687,024.29 
583,304.97

494,611.63

418,162.84

245,969.98
22.503.45 

403,317.14 
239,846.40 
386,307.37 
288,790.22

58.128.45 
191,674.36 
151,298.62

94,586.82
41.685.45 
35,163,71 
29,907.66

13,386,072.16
776,712.77

Percentage 
Of Total 

As Shown 
In Chart

11.19
8.34
8.04
4.85
4.13

3.49

2,95

1.75
.16

2.84
1.69
2.72
2.04

.41
1.35
1.07

.67

.29

.25

.21

94.52%
5.48

total ............... —-------------n rr............................................................................. $ 14,162,784.93 100%

any C artel^ I d s ^ o t i l e r ^ a ^ G e n e r a 'i^ in tf  Ex1?en'sfltUoeS f.rom the Industr!al Water Works Operatic", many Trust Funds. Sinking Fund), Special Assessment Funds, or any of the City*



143

Recapitulation of Current Funds Expenditures—Including

Appropriation to General Sinking Fund

Classified According to Purpose of Expenditure

Salaries and Wages—All City Employees ex­
cept Board of Health ................................ $ 8,256,659.04

General Expense and Office Supplies...........  137,219.95
Equipment Repairs — Other than Motor

Equipment .................................................  138,828.13
Automobile and Motorcycle Maintenance

and Repairs, Gasoline, Oil, etc...................  240,694.56
Postage............................................................ 3,297.25
Electricity for Lighting and Power—Coal

and Gas .....................................    37,613.91
Fire Hydrants—Water ..................................  72,452.52
Street Lighting...............................................  142,262.51
School Operation Expense other than Sal­

aries ............................................................ 429,158.15
Library Operation Expense other than Sal­

aries ............................................................ 23,833.78
Park Operation Expense other than Salaries 80,833.07
Prison Operation Expense other than Sal­

aries ............................................................ 70,717.21
Health, Ordinary Operation Expense includ­

ing Salaries ..................  245,969.98
Street Paving Paid Out of General Taxes .. 127,962.87
Group Life and Casualty Insurance for Em-

pioyees ........................................................  64,608.93
Land Purchase and New Building Construc­

tion-All Funds .......................................... 707,860.29
New Equipment Purchased .........................  254,165.55
Appropriations for Pension Funds ..............  386,307.37
Public R elief................................................... 288,790.22



144

Social Security Building — Operation and
Maintenance ............................................... 41,685.45

Miscellaneous Unclassified Expenditures .. . 50,646.30

Total ............................................ $11,801,567.04*

Appropriation to General Sinking Fund for 
the purpose of paying Maturing Bonds and 
General Bond In terest.............................. $ 1,584,505.12

Grand Total Expenditures .............$13,386,072.16

Per Capita Costs, Tax Rates, etc.
The City’s Total Revenue for the Fiscal Year

that ended August 31, 1948, w a s ....... . $14,162,784.93
The City’s Total Expenditures paid from 

Current Operating Revenues for the Fis­
cal Year that ended August 31, 1948, was. $13,386,072.16 

There was added to the City’s Current
Operating Surplus during the year .........  776,712.77

The City of Birmingham is living well with­
in its Income, and has been doing so for 
many years.

The City’s 1948 Per Capita Revenue for all 
purposes (using an estimated population of
315,000), w as............................................. $ 44.96

The City’s 1948 Per Capita Expenditures for 
all Ordinary City Activities, paid from 
Current Operating Revenues, was ...........$ 42.50

*For Departmental distribution of these Expenditures, 
see Schedule No. A-8, City Comptroller’s printed Annual 
Report.



145

Per Capita Expenditures Less than Per
Capita Revenues ........................................$

The Average Family of 43/2 persons had a 
total cost of City Government amount­
ing t o ............................................................$
This amounts to only 55 cents per day, for the entire 

family. For that 55 cents, the family had all the benefits 
and opportunities embraced in fine School and Library 
Systems; good Police and Fire Protection; excellent Health 
and Sanitation service and supervision; various protective 
Inspectional Services such as Building, Plumbing, Elec­
trical, Weights and Measures, etc.; all kinds of public rec­
reational privileges and services, together with many 
other lesser public services.

Tax Rates.
The City Ad Valorem Tax Rate on each

$1,000.00 Assessment is ...............................$
It is divided for different City Activities, 
as follows:
School Operation ..............   $6.50
General City Operation....................  5.00
Debt Service on All Bonds, includ­

ing School Bonds....... ...........   6.50
The State and County levy additional Taxes 

of ...................................................................$

The over-all City, State and County Tax rate
per $1,000.00 Assessment, i s ....................... $ 36.00

City Schools share in State and County 
Taxes. During this Fiscal Year, this 
sharing amounted to .................................$1,069,559.98*

*This is in addition to the revenue from the City’s levy 
of $6.50 on each $1,000.00 Assessment for school operation.

18.00

18.00

2.46

201.25



146

City Schools also share in State Sales Taxes,
Tobacco, Public Utility, Severance and 
other Special State Excise Taxes. This 
year that sharing amounted to ................ $ 2,298,984.58

Condensed Statement of Property Owned and City’s 
Outstanding Bond Debt September 1, 1948.

(Property Shown at Book Values)

Land, Buildings and Equipment:
Schools — Depreciated Book 

Value .............................. $ 8,233,611.45
Libraries — Depreciated 

Book Value ..................... . 637,992.60
Fire Department — Depre­

ciated Book Value ....... 498,698.91
Parks — Depreciated Book 

Value ........................ 6,967,001.24
Departmental Equipment — 

Depreciated Book Value. 1,407,021.04
Other Miscellaneous Prop­

erties — Depreciated Book 
Value ....................... 11,555,621.33

iotal ................................................ . $29,299,946.57

The Depreciated Book Value of all City Pav­
ing, Sidewalks, Curbing, Sewers, etc., i s . . . $13,051,529.57



147

Bond Debt as of Oct. 1, 1949:

General City Bonds including Special
Assessment B onds.................................. $18,497,000.00

$19,219,000.00
Schools ............................ *$10,672,000.00
Sewers ...........................  1,811,000.00
Special Assessment.........  843,000.00
Other Miscellaneous Pur­

poses ...........................  5,893,000.00 $19,219,000.00
On September 1, 1948, the City had Sinking 

Fund Assets to be applied on this Bond
Debt, amounting t o .................................... $ 1,663,736.00

$ 1,647,093.32
After applying these credits the net Bond

Debt was .................................................. $16,833,564.00
$17,571,906.68

The Per Capita Net Bond Debt ies approxi­
mately ........................................................ $ 55.78

Birmingham paid and retired Bonds during 
the year that ended August 31, 1948, in
the amount o f .............................................. $ 929,000.00

It is expected to pay and retire during the
1948-1949 Fiscal Year, not less than...........$ 1,230,000.00

It is expected to issue new bonds during the 
1948-1949 Fiscal Year, as follows: High­
way, $500,000; Special Assessment,
$300,000 ........................... ...................... $ 800,000.00

The Industrial Water Works Operation is not 
included in any of the above figures.

*Qn August 31, 1948, the Board of Education had on 
hand $3,930,597.10 in cash and liquid assets available for 
School Land Purchase and New Building Construction.



148

The revenue from this operation during the 
Fiscal Year that ended August 31, 1948,
was ............................................................

Operation costs were ....................................
$
$

450,339.80
141,346.39

Gross operating Profit before Debt Service. $ 308,993.41
Bond Interest Paid ................ $ 67,250.00
Bonds Paid and Retired ......... 100,000.00 $ 167,250.00

Balance from Fiscal Year’s operation
available for additional Debt reduction. $ 141,743.41

The Water Plant has a book value of...........$ 6,429,572.10
The Water Bond Debt as of September 1,

1948, was ....................................................$ 3,450,000.00
The Water Sinking Fund owns some of these 

Bonds, amounting to ................................ $ 568,000.00

History and Operational Data.

The City was incorporated December 19, 1871. It has 
a present area of 51,813 square miles, or 33,160 acres.

The 1940 U. S. Census reported a population of 267,583.
The 1948 estimate of population is 315,000.
Birmingham ranked the 35th largest city in U. S. in 1940.
Birmingham had the Mayor-Aldermanic form of Gov­

ernment until April, 1911. Since then, it has had the Com­
mission Form. There are three City Commissioners. One 
is elected President. He exercises most of the usual powers 
of a mayor. All three are elected for a period of four 
years. They are the only elected city officials. All de­
partmental officials and employees, other than day labor, 
and the employees of the Board of Education and Libraries, 
are appointed from certified Civil Service Eligible Lists. 
The City Commission is the general over-all administrative 
authority of all City activities and employees, other than 
where special Boards function.



149

The following special Boards are appointed by the City 
Commission, with each Board having exclusive jurisdiction 
in its particular activity; Board of Education, Library 
Board, the Park and Recreation Board and the Fair Park 
Authority.

On October 1, 1948, the number of City Employees, in­
cluding all day laborers, was:

Board of Education......................................  2,101
Libraries ...................      101
Police Department ........................................  330
Fire Department ..........     399
Highways—Garbage and Sanitation Depart­

ments .................................................- • • • 502
Park and Recreation Department................  176
Other Miscellaneous Departments.............. 264

3,873

The City maintains 37 Elementary and 6 High Schools 
for whites, and 25 Elementary and 2 High Schools for Ne­
groes. The average daily attendance was 23,523 in the 
white schools, and 17,705 in the Negro schools. Last year 
there were 1600 white High School graduates and 790 Ne­
gro High School graduates.

The City maintains 12 Public Libraries for whites, and 
two for Negroes. There are 300,000 books in these libra­
ries. 882,487 books were borrowed from the Library dur­
ing 1947. In addition thereto, nearly 400,00 readers visit­
ed the Libraries last year. All of these Libraries are oper­
ated under the supervision and direction of one Special Li­
brary Board, and one Directorship.

The Health Department is operated jointly by the State, 
County and City. There are a total of 214 Health Em-



150

ployees. The City furnishes 72 of them. Part of the 1947 
year’s Health Services, were 186,353 laboratory tests; 50,- 
013 general sanitation inspections; 44,891 food inspections; 
66,312 Home Nursing visits; 8,826 Clinic Venereal treat­
ments; 99,951 pounds of food condemned as unfit for hu­
man consumption; 68,610 visits were made to health clinics 
during the year.

During 1947, the City collected and disposed of 95,000 
tons of garbage and 20,972 dead animals. More than 50,000 
miles of paved streets and gutters were cleaned.

Thirty miles of paved streets were re-sealed. The City 
maintains 600 miles of paved streets, 580 miles of unpaved 
streets; 520 miles of sanitary sewers, and 193 miles of 
storm sewers.

The City has 24 well-equipped Fire Stations. During 
1947, these 24 stations answered 3,961 fire alarms. 878 of 
these alarms were false and unnecessary. Property values 
in the amount of $48,325,116.41 were at risk in these fires. 
The total fire loss was $918,268.80. 69,031 fire prevention 
inspections were made.

During the 1947 calendar year, the Police Department 
made 28,418 arrests. 19,226, or 68% of those arrested were 
convicted in the Police Court. In addition to the above, 
1,321 other arrests were made with the prisoners being 
turned over to the County Sheriff or other Public Offi­
cials. $804,015.00 of stolen property was recovered and 
returned to the former owners. 28,693 parking tags were 
issued.

The City operates 54 parks, embracing 1,100 acres. There 
are three Public Golf Courses; six swimming pools, 106 
Tennis Courts; one Arts-Crafts and Hobby Shop. Twenty 
white Playgrounds and Community Centers and eight Ne­
gro Playgrounds and Center were supervised and main­
tained last year. There were 1,736,139 visitations at the 
Playgrounds and Centers.



151

Last year 14,956 building inspections were made; 12,285 
plumbing and gas inspections, and many thousands of 
electrical inspections. 34,851 weights and measures in­
spections were made.

In addition to all of the foregoing specific services given, 
are those other departments largely engaged in adminis­
trative work, such as the City Comptroller’s Department, 
Legal Department, Engineering Department, Purchasing, 
Public Buildings, Recorder’s Court, Prisons, etc.

The foregoing services are only part of the things that 
were done last year for the Average Family, with their 
55c daily cost for City Government.

Q. Mr. Green, I neglected to ask you a moment ago 
whether or not when the area was basically zoned in 1926, 
if the zoning lines in this North Smithfield or Graymont 
area followed generally the lines of the agreement that you 
referred to that the white and colored citizens reached out 
there in 1923?

A. Yes, sir, in general.
Q. When you speak of the Graymont Association, in 

order to identify for the record, Graymont was a separate 
municipality prior to its consolidation with Birmingham 
about 1910, was it not?

A. Yes, sir.
Q. And when you have reference to Graymont, you 

have reference to that territory that was formerly within 
the municipality of Graymont?

A. That’s right.
Q. Which includes this North Smithfield district?
A. That is correct.
Q. After the zoning of that property carried out in a 

substantial way the agreement that the citizens had reach­
ed out there in 1923, has there been any challenge of that 
arrangement in any way, shape, form or fashion prior to



152

the recent controversy involving the invasion of west of 
Center Street by some of the Negro population?

A. In the 10 years I have been on the Commission, 
Judge, there wasn’t any until this recent controversy, ex­
cept two or three real estate salesmen that would come in 
and try to get permission to adjust here and there for a 
lot or two in the area just north and east of the Center 
Street line. The Zoning Board and the City Commission 
made several adjustments in that area prior to those de­
velopments. In fact, they gave I would say in that area 
approximately 20 acres, changed it from white to colored 
with the consent of both the committee from the Civic 
Association, the Real Estate Board, and the colored com­
mittee that was asking for it through these real estate men.

On the north end, the last adjustment was some 30 
acres which was granted a change from white to colored, 
which was practically all vacant in that area, I would say 
95 per cent vacant. That was added to the zone, going in 
this immediate Center Street line. Coming across west 
of Center Street there has not been any change since ’28 
that I know of.

Q. Now, did you participate in the activities of the 
committee that was appointed to try to work out the ad­
justment of this matter some several months ago that has 
been referred to in the testimony here?

A. Yes, sir, I met with the committee, oh, I guess fif­
teen times, off and on, various committees, in trying to 
work out some satisfactory solution so that we could have 
law and order and peace.

Q. In those conferences that you attended, were they 
attended by both white and Negroes?

A. Some were, in the council chamber, and some were 
not. I don’t remember exactly how many were. When 
we had open hearings of the Commission there were both 
colored and white there. This committee tried to act as a



153

go-between, appointed by Mr. Morgan. It met with the 
white committee, and then met with the colored commit­
tee. They were not all joint committees, but we met with 
both groups.

Q. Getting the views of members of both races?
A. Yes, sir.
Q. What action did the City Commission take with re­

spect to the work of the committee or the committees?
A. The recommendation of the committee was to zone 

north of 11th Court, approximately 30 acres, a white area, 
to colored.

Q. Change from white to colored?
A. Yes, sir.
Q. Did the Commission adopt that?
A. That gave them one more block, which was 11th 

Avenue, between 11th Court and 11th Avenue, one block, 
where there were two white houses and two colored 
houses, formerly four white houses. Two of the occupants 
had sold to these two pastors that they named. The Com­
mission agreed with the committee on everything but that 
one block, and it was mixed with two whites and two 
colored.

Q. That was the block in which the bombings have 
taken place?

A. Yes, sir.
Q. Some of the bombings?
A. Yes, sir.
Q. Had that been a white or colored block previous to 

the bombing?
A. It had been white.
Q. It had been white?
A. Yes, sir.
Q. Over what period of time?
A. As long as I can remember. Since the zoning law 

in ’26, even from ’23, before the zoning.



154

Q. It had been white up until the time these two pas­
tors moved in?

A. Yes, sir.
Q. And these bombings occurred?
A. That’s right.
Q. The Commission did not agree to change that block 

from white to colored?
A. That is correct.
Q. With that exception, you concurred?
A. In the committee’s report.
Q. In the committee’s report?
A. Yes, sir. We left Center Street bounded on the 

same line it had been.
Q. You have been on the City Commission how long? 
A. 10 years.
Q. Previous to that were you a member of the legisla­

ture from this County?
A. Yes, sir, three sessions of the Alabama Legislature. 
Q. I will ask you to tell his Honor what in your opinion 

would be the result of upsetting the custom that was trans­
lated into the zoning laws by the ordinance, zoning ordi­
nance in 1926, with respect to white and colored areas in 
the Graymont section?

Mr. Marshall:
Objection.

A. I think it would be tragic.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception.



155

Q. Mr. Green, I will ask you whether or not in your 
opinion there is a clear and present grave danger of jeop­
ardy to life and property if the white section out there 
that we have been talking about is invaded by Negroes?

Mr. Marshall:
Objection.

A. Yes, sir.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception. Perhaps I should have stated, 

and I will state it now, that we offer to show by this wit­
ness that in his opinion that grave disorder and damage 
to property and jeopardy to life and limb would result 
from the situation I asked him about.

The Court:
All right, I will give you that offer.

Q. Will you tell his Honor as President of the City Com­
mission what the City’s financial condition is with respect 
to obtaining additional or new revenue?

A. We are up to our tax limit.

Mr. Marshall:
If Your Honor please I object to that evidnece as com­

pletely irrelevant.

The Court:
I sustain the objection.



156

Mr. Wilkinson:
We except and offer to show that the City is up to its 

tax limit, and that it has no new sources of revenue that 
it could tap under the law, and if there is any substantial 
diminution in the ad valorem tax from residential prop­
erty sources, which I understand from the document there 
is about 38 per cent of the City’s revenue, that the City’s 
ability to furnish necessary municipal services would be 
materially impaired.

The Court:
You have that offer to show, and I will sustain the objec­

tion.

Mr. Wilkinson:
All right, just one moment. You may take the witness. 

Cross Examination.

By Mr. Marshall:
Q. Mr. Green, did I understand you correctly to say 

that Sections 1604 and 1605 are still in effect and enforced 
by you and the other members of the Commission?

A. Well, now, by the number—
Q. The segregation ordinance?
A. By number, I don’t know which ones you are talk­

ing about.
Q. The one that sets aside certain areas for white occu­

pancy and certain areas for colored occupancy?
A. You mean the original ordinance on that subject?
Q. Yes, sir.
A. I don’t know them by number.

The Court:
They are 1604 and 1605.



157

Q. They are still in effect?
A. Still in effect.

Mr. Wilkinson:
The zoning ordinance he is asking you about.

A. They are still in effect, yes.
Q. You are still enforcing them?
A. Yes, to the best of our ability.
Q. Have you made any change in them in recent years?
A. You mean in the zoned areas?
Q. Yes, sir.
A. Yes.
Q. They have been just these minor changes you are 

talking about?
A. In that area alone there are some 58 acres up there 

on one side and 30 on the other that have been changed A 
from white to Negro. I wouldn’t call that minor.

Q. Do you still maintain the basic principle that in the 
area that is zoned for white occupancy a Negro cannot 
live in that area, do you still observe that principle?

A. He can own land, but occupancy is the zoning ques­
tion, and for the good of the racial harmony, and law and 
order, we uphold the ordinances, yes.

Q. Are you familiar with the case of Samuel Matthews 
and Essie Mae Matthews against the City of Birmingham, 
decided by this Court in August, 1947?

A. Not the details of it. I know about the matter.
Q. Did you read a copy of the decision in that case?
A. I did not.
Q. Are you familiar with what is held?
A. I read newspaper stories about the decision.
Q. Although the City of Birmingham was a party to 

that suit, the President of the Commission did not know 
about the decision?



158

A. Except what I read in the papers. No papers were 
ever served on me about it. But that was about only one 
piece of property, was my understanding from the legal 
department, and it was on that one piece, and did not ap­
ply to any other piece of property. It was only about that 
one house, and I believe the Court so ruled.

Q. You were advised by the legal department, were you 
not, that this Court ruled that those sections were uncon­
stitutional?

A. So far as that one piece was concerned, yes.
Q. Knowing the decision of the Court in that particular 

case, what action did you and the Commission take con- 
- teeming these zoning ordinances?

A. We still upheld the ordinances, because I believe 
this matter goes beyond the written law, in the interest of 
peace and harmony and good will and racial happiness. I 
think that we are doing what we feel is right.
- Q. And you believe it goes beyond the Constitution of 
the United States?

A. I said beyond the written law, whatever it is.
Q. Does that include the Constitution of the United 

States?
| A. The written law of the land, because I think this 
thing creates bloodshed. Under the police powers to keep 
law and order, we have that authority. There are some 
things that law cannot cover, and I think this is one of 
them. It was created not by the City Commission, not by 
you nor me, it was created by the people, who were cre­
ated by the good Lord.

Q. At the present time what is there that prevents the 
Plaintiffs in this case from continuing to build their home 
on the land they bought other than this ordinance and the 
enforcement of it by you and the Commission, what else 
is there that prevents them from building and living in 
their own home today?



159

A. Nothing except the ordinance, that I know of.
Q. And you put the ordinance above the Constitution of 

the United States?
A. No, I didn’t say that.

Mr. Wilkinson:
We object to that. That is a matter of argument and 

deduction.

The Witness:
I didn’t say that.

Mr. Wilkinson:
For the Court to pass on.

T h e  C o u r t :
I sustain the objection.

A. But I put the peace and harmony of my community 
above everything.

Q, What, if anything, did you as the President of the 
Commission do to protect the homes of the people whose 
homes were destroyed by violence?

A, We put police cars in that area for 24 hours a day, 
all during the period before and after and at the time it 
happened, we had police cars in the vicinity, but they were 
not at the spot. We keep them in that area constantly, 
still do.

Q. Did you have anybody at the spot?
A. No, not at the time it happened, no.
Q. Where there is a possibility of violence in other 

parts of the City, as, for example, where there is a picket 
line, do you or do you not put policemen to protect the 
property of the place being picketed?



160

Mr. Wilkinson:
We object to that. What has picketing got to do with 

this case?

The Court:
I sustain the objection.

Mr. Marshall:
That is all for us.

Re-Direct Examination.

By Mr. Wilkinson:
Q. Mr. Green, in your opinion does the City Commis­

sion of the City of Birmingham or the State of Alabama, 
both of them combined, have enough police force to pre­
vent race riots, violence and damage to property if the 
invasion of white sections by Negroes becomes general in 
Birmingham?

Mr. Marshall:*
Objected to.

The Court:
I sustain the objection.

Mr. Wilkinson:
We except. That is all. Thank you.

The Court:
Mr. Green, let me ask you this. You are familiar with 

Ordinance No. 709F, the last zoning ordinance that was 
passed?

The Witness:
Yes, sir.



161

T h e  C o u r t :
Y o u  h a d  a  c o m m i t t e e  d o w n  t h e r e  t h a t  w a s  t r y i n g  t o  

w o r k  t h i s  p r o p o s i t i o n  o u t  a s  I  u n d e r s t a n d  i t ?

T h e  W i t n e s s :
Y e s ,  s i r .

T h e  C o u r t :
Y o u  m a d e  c e r t a i n  c h a n g e s  b a s e d  o n  t h e  r e c o m m e n d a ­

t io n  o f  t h a t  c o m m i t t e e ?

T h e  W i t n e s s :
W e  m e t  99  p e r  c e n t  o f  t h e i r  r e c o m m e n d a t i o n .

T h e  C o u r t :

D id  y o u  m a k e  t h o s e  c h a n g e s  i n  t h e  z o n i n g  l a w s  b e f o r e  

o r  a f t e r  y o u  p a s s e d  t h i s  o r d i n a n c e  7 0 9 F ?

T h e  W i t n e s s :
I  w o n ’t  b e  c e r t a i n  a b o u t  t h e  p a s s a g e  o f  t h e  7 0 9 F  i n  c o m ­

p a r i s o n  w i t h  t h e  o t h e r ,  b u t  i t  i s  m y  o p i n i o n  t h a t  w e  r e ­

z o n e d  t h i s  a r e a  j u s t  a f t e r  7 0 9 F .

T h e  C o u r t :

A f t e r  7 0 9 F ?

T h e  W i t n e s s :

I  a m  n o t  c l e a r  o n  t h a t .

T h e  C o u r t :

A f t e r  7 0 9 F  w a s  p a s s e d ?

T h e  W i t n e s s :

Y e s , s i r .



162

The Court:
All right.

The Witness:
I can be in error on that. I am not sure just which was 

passed first.

The Court:
All right. Is that all with this witness?

Mr. Wilkinson:
Yes, sir.

The Court:
Come down.

(Witness excused.)

A. KEY FOSTER, called as a witness on behalf of the 
Defendants, being first duly sworn, tesitfied as follows:

Direct Examination.
By Mr. Wilkinson:

Q. Is this Mr. A. Key Foster?
A. Yes, sir.
Q. Mr. Foster, what is your business experience in 

Birmingham?
A. I practiced law there from ’20 to ’25, and from ’25 

to ’43 I was an officer of the Birmingham Trust & Savings 
Company, and from ’45 to now I have been ice President of 
The First National Bank.

Q. When you were an officer of the Birmingham Trust 
& Savings Company, what duties did you perform there, 
and in what department, if any particular department?



163

A . W h e n  I  f i r s t  w e n t  t h e r e  I  w a s  i n  c h a r g e  o f  t h e  r e a l  

e s t a t e  d e p a r t m e n t .  P a r t  o f  m y  d u t i e s  w e r e  a p p r a i s i n g  p r o ­
p e r t y  a n d  m a n a g i n g  p r o p e r t i e s  h e l d  i n  t r u s t  b y  t h e  t r u s t  

d e p a r t m e n t .

Q . D i d  y o u  h a v e  a n y t h i n g  t o  d o  w i t h  a p p r a i s i n g  m o r t g ­
a g e  lo a n s ,  a n d  m o r t g a g e  i n v e s t m e n t s ?

A . Y e s ,  s i r .

Q . O n  r e s i d e n t i a l  p r o p e r t y  i n  B i r m i n g h a m ?
A . Y e s ,  s i r .

Q . H o w  l o n g  d i d  y o u  p e r f o r m  t h a t  k i n d  o f  s e r v i c e ?
A . A b o u t  f i v e  y e a r s .

Q . I  w i l l  a s k  y o u  i f  d u r i n g  t h e  t i m e  t h a t  y o u  w e r e  c o n ­

n e c t e d  w i t h  t h e  b a n k  i n  m a k i n g  m o r t g a g e  lo a n s ,  I  m e a n  
a p p r a i s i n g  m o r t g a g e  l o a n s  o n  r e s i d e n t i a l  p r o p e r t y ,  i f  t h e r e  

w a s  b e i n g  o b s e r v e d  i n  B i r m i n g h a m  a  c u s t o m  i n  s u b s t a n c e  
t h a t  t h e  w h i t e  p e o p l e  r e m a i n e d  i n  t h e  w h i t e  r e s i d e n t i a l  

a r e a s  a s  z o n e d  b y  t h e  C i t y ,  a n d  t h e  c o l o r e d  d i d  t h e  s a m e  
th i n g  w i t h  r e s p e c t  t o  t h e i r  a r e a ?

A . Y e s ,  s i r .

Q . W a s  t h a t  f a c t  t a k e n  i n t o  c o n s i d e r a t i o n  i n  m a k i n g  
m o r tg a g e  l o a n s  a n d  a p p r a i s i n g  p r o p e r t y ?

M r. M a r s h a l l :
W e  o b j e c t .

T h e  C o u r t :
I  s u s t a i n  t h e  o b j e c t i o n .

M r. W i l k i n s o n :

W e  r e s e r v e  a n  e x c e p t i o n  a n d  e x p e c t  t o  s h o w  t h a t  t h i s  

w i tn e s s  w o u l d  t e s t i f y  t h a t  t h a t  w a s  a  v e r y  i m p o r t a n t  q u e s ­
t io n  i n  t h e  m a k i n g  o f  l o a n s  a n d  i n  t h e  a p p r a i s i n g  o f  p r o ­
p e r t y  a n d  f i x i n g  v a l u e s  o n  i t .



164

Q. Mr. Foster, state whether or not in the appraisal of 
property there is the general policy on the part of financial 
institutions, such as banks, insurance companies, mortgage 
loan companies, building and loan associations, and institu­
tions of that kind, to consider the location of property and 
its stability as to classification?

A. Yes, sir.
Q. Is that or not an important factor?
A. Yes, sir, it is very important.
Q. I will ask you, Mr. Foster, if property is in the path 

of a contemplated change from white to colored classifica­
tion, or from colored to white classification, if that is a 
factor that is taken into consideration in the appraisal of 
property?

Mr. Marshall:
Objection.

The Court:
I sustain the objection.

Mr. Wilkinson:
We except. Does Your Honor hold we cannot show the 

elements that enter into the appraisal of property for 
purpose of making mortgage loans and sales of it?

The Court:
I think it is immaterial to any issue here. I will let y o u  

offer to show anything that you want to. I will let y o u  
state your offer.

Mr. Wilkinson:
I don’t desire to be tedious about it.

The Court:
I understand.



165

Mr. Wilkinson:
But I would like to take an appraiser and get him to 

enumerate the factors. That is just one picture I want to 
bring out. I want to bring out all of the elements that 
enter into a proper appraisal of property by a man ex­
perienced in that line of business, for the purpose of show­
ing just how they do arrive at values. This one particular 
feature is important, but it is not the only thing, of course. 
They consider other things, but I lay special emphasis on 
that because it is, as I understand it, highly important in 
the appraisal of property. There are other things, such 
as the type of tenant who is going to occupy it, the type 
of occupant, whether white or colored, whether profess­
ional or an artist, a laborer or merchant, or what not.

The Court:
You have your offer to show all of those things. I sus­

tained the objection to it.

Mr. Wilkinson:
We reserve an exception.

Q. Mr. Foster, were you a member of the committee of 
five that was appointed in 1949 by Commissioner Morgan, 
Commissioner James W. Morgan, to work out a solution of 
this controversy that had arisen between the Negroes and 
whites over the Center Street zoning in the Graymont 
territory?

A. Yes, sir.
Q. Did you serve on the committee?
A. Yes, sir.
Q. How many were on the committee?
A. There were really four. Dr. John Turner couldn’t 

serve because he was sick. He got sick about that time, and 
there were only four of us.



166

Q. There were four of you that actually actively 
served?

A. Yes, sir.
Q. Would you mind telling the Court what conclusions 

and recommendations you came to? First, let me ask you 
this, did you confer with the colored committee?

A. Oh, yes, several times.
Q. How many were on the colored committee?
A. Well, it varied, sometimes four or five, sometimes 

four.
Q. You had a number of conferences with the colored 

committee?
A. Yes, sir.
Q. Did you all reach an understanding with them?
A. Yes, sir.
Q. Just tell us in substance what the upshot of the 

matter was.
A. The whole contention was that the colored people 

wanted some more room to build high class residential 
homes, and we recommended that the line be drawn down 
the center of Center Street, that the territory east of Cen­
ter Street be zoned colored, and west zoned white, and 
that the line be drawn east and west down 11th Avenue, 
that south of the line be white and north of the line over 
the hill, down the other side, which is largely vacant, to 
be zoned colored.

Q. Did your committee and the colored committee dis­
cuss the advisibility of residential zoning as a social matter 
in Birmingham?

A. Yes, we did.
Q. What was the consensus of opinion of all of you, 

white and colored alike?
A. We explained to them that for the sake of peace 

and harmony we felt that there ought to be a segregation 
of races, regardless of whether there be any ordinance to



167

that effect or not, and it was generally agreed by them 
that that was the desirable thing to do. And it was the 
agreement that if we would establish a line satisfactory to 
both parties that the colored people would see that their 
people stayed on their side, if the white people would see 
that the white people stayed on their side.

Q. What did the City Commission do with respect to 
the recommendations of your committee?

A. There was a difference of opinion. The Graymont 
Association, I mean the Graymont Civic League, wanted 
a line drawn down 11th Court instead of 11th Avenue, a 
difference of one block wide and two blocks long. It in­
volved a white house and two colored houses, side by side 
on Center Street between 11th Court and 11th Avenue, and 
then it involved about eight shotgun houses down in the 
next block, down the hill, which we were told had been 
condemned and would be torn down eventually. They were 
colored houses.

We recommended that those two blocks be made into a 
park so that there would be a sort of zone between the 
white and colored people there.

Q. Those two blocks were zoned white at that time?
A. Yes.
Q. All right.
A. And the Commission felt that they could not afford 

to buy those four houses, and buy those two blocks and 
zone that into a park. So as a compromise I—a compromise 
to the committee, the line was drawn down 11th Court in­
stead of 11th Avenue. We were just a fact-finding com­
mittee, we had no authority.

Q. You were just appointed as a citizens committee by 
Mr. Morgan to try to work out a satisfactory solution of it?

A. Yes, sir.
Q. Do you know who appointed the colored committee?
A. No, I don’t.



168

Q. How many meetings did your committee and the 
colored committee have?

A. Well, we had several meetings before we called the 
colored committee in because we were trying to find out 
what the Graymont Civic League wanted or would agree 
to. And then we called the colored committee in to find out 
what they wanted. And then we tried to work those two 
together in harmony. We had three or four meetings with 
the colored committee. We went out there twice and 
walked over the ground with them.

Mr. Wilkinson:
You can have the witness.

Cross Examination.

By Mr. Shores:
Q. Mr. Foster, do you recall the members of that 

colored committee that met with the white committee, any 
of them?

A. Yes. You were a member of it, and Arthur Gaston, 
and the Methodist Bishop,—what is his name?

Q. Bishop Green?
A. Bishop Green, then there was a colored woman.

• Q. Yes, that’s right, Miss Gilliard.
A. What?
Q. Gillard.
A. Yes, and I believe that was at that meeting in the

library.
Q. That’s right. Do you recall the number of meetings 

we had?
A. We had one there, and then we tried to have one at 

South Smithfield, and the colored committee didn’t come, 
j  and I believe we had one more, I am not sure about that. 

Q. That’s right, in all two meetings?
A. Two meetings, yes.



169

Q. In those two meetings, you really heard suggestions 
from the Negro committee, didn’t you?

A. Yes.
Q. And was there to be another meeting where we 

would resolve our differences prior to the abandonment 
of the committee of their duties?

A. There wasn’t any definite agreement about further 
meetings. We agreed that we would take the recommenda­
tions of the colored committee and see how nearly we 
could come to settling those differences.

Q. Was there any further meeting after you agreed to 
take the suggestions from the colored committee?

A. No. As I recall it the colored committee agreed on 
Center Street and 11th Avenue, and the white committee 
wanted Center Street and 11th Court, and there was only 
a difference of two blocks, which was to be solved by the 
City Commission buying those two blocks and making 
a park out of it, and we made those recommendations to 
the City Commission and resigned, because we felt that 
we had gotten close enough to have served our responsi­
bility, and there was nothing else we could do.

Q. As a matter of fact the Negro committee never 
agreed on any line of demarcation, and there was to be 
another meeting of the committee prior to the times 
when the ordinance in question was introduced, wasn’t 
there to be another meeting of the committee?

A. It is not my recollection that there was any agree- j 
ment. We were calling the colored committee together for ; 
advice, just as we called the white committee together j 
for advice, so as to enable us to arrive at a conclusion, ; 
which we arrived at independently of either one of them. J

Q. Didn’t you receive a letter, a copy of which was sent 
to all members of the committee, from the Chairman of 
that committee, offering his resignation immediately upon 
passage of this new ordinance, stating in substance that 
the committee’s work was done, and that they failed to



170

give them a chance, and the commitee resigned, and felt 
it couldn’t do anything else?

A. No.
Q. Did you receive a copy of that letter?
A. No. I wrote the letter of resignation myself.
Q. Was that immediately after the passage of this ordi- 

ance or before?
A. We made our recommendations, and then we asked 

the Commission to discharge us from further duties be­
cause it had taken a great deal of time and we felt we 
had done as much as we could do, and there was just a 
difference of two blocks in there, and that didn’t make a 
great deal of difference any way.

Q. Was that before or after the ordiance?
A. I don’t know when the ordinance was passed.

Mr. Shores:
That is all.

Re-Direct Examination.

By Mr. Wilkinson:
Q. Did your commitee resign before or after the Nation­

al Association for Advancement of Colored People had 
notified the City Commission that they would contest any 
effort to segregate the races in Birmingham, if you recall? 

A. I don’t recall.
Q. You don’t recall?
A. No.

Mr. Wilkinson:
J believe that is all for this witness.

(Witness excused.)



171

V. L. ADAMS, called as a witness on behalf of the De­
fendants, being first duly sworn, testified as follows:

Direct Examination.

By Mr. Wilkinson:
Q. Is this Mr. V. L. Adams?
A. Yes, sir.
Q. Mr. Adams, what is your business or occupation?
A. I am a merchant.
Q. In Birmingham?
A. Handling coal.
Q. Sir?
A. I sell coal when I can get it.
Q. How long have you been engaged in the coal 

business in Birmingham?
A. Ever since 1921.
Q. Where do you live?
A. I live on Shades Mountain now.
Q. Did you formerly live out in the Graymont section? 
A. Yes, sir, I lived at 211 9th Court about 26 years. 
Q. About 26 years?
A. Yes, sir.
Q. Were you formerly a member of the legislature from 

Jefferson County?
A. Yes, sir.
Q, When you lived out on 9th Court were you con­

nected with any civic organization out there?
A. Yes, I have been a member of that organization I 

guess for 24 or 25 years.
Q. Was that the Graymont—what do they call it?
A. Graymont Civic Association.
Q. Graymont Civic Association?
A. Yes, sir.
Q. That is composed of who?
A. Citizens.



172

Q. Sir?
A. White citizens of College Hills and Graymont.
Q. College Hills and Graymont?
A. Yes, sir.
Q. Now, Mr. Adams, do you remember back in around 

1923 when a controversy came up about Center Street be­
ing the dividing line between the colored and white sec­
tions out there?

A. Yes, sir.
Q. Sir?
A. Yes, sir.
Q. Were you connected with the civic association at 

that time?
A. Yes, sir.
Q. A member or officer or what?
A. I was a member. I was not an officer at that time. 

Later on I was an officer of it. I was just a member at 
ftiat time.

Q. Sir?
A. I was a member at that time.
Q. You were a member at that time?
A. Yes, sir.
Q. Did you serve on any committee in connection with 

that controversy, or have anything to do with the settle­
ment of it?

A. I don’t know whether I did in that one or not, I don’t 
remember.

Q. Do you remember how it was settled?
A. Yes, they agreed to have Center Street as the 

dividing line up to a certain point, and then it went back 
to the right some 180 or 200 feet, and then went diagonally 
across the hill there to about that bridge over the Frisco 
Railroad. There were white people living back in there on 
11th Court, a good many, on both sides of the street, up 
to First Street.



173

Q. Then generally speaking west of Center Street was 
the white territory?

A. Oh, yes.
Q. East of Center Street was the Negro territory?
A. Yes, that’s right.
Q. When did you leave that community out there?
A. I left there last July a year ago.
Q. From the time that that arrangement was entered 

into out there until you left last July a year ago, I wish 
you would tell his Honor whether or not the solution that 
was reached, the agreement that was reached was generally 
respected by both white and Negro in that territory.

A. Yes, sir, always. We had meetings, and we invited 
the colored people to our meetings, and we got along fine 
until three or four years ago. It began to get worse, and 
kept on, they came on over on the white territory, over 
in the white zone, and some of the men right here were 
in meetings that we had at McCoy Church, where we have 
our meetings.

Q. I didn’t hear you.
A. We had meetings at McCoy Church, Methodist 

Church out there.
Q. The McCoy Methodist Church?
A. Yes. It has been pretty bad for the last three or four 

years. They tried to break over the white zone set up out 
there. They have been to my house, Arthur Shores has 
been to my house, and Oscar Adams came to my house, 
and I forget the other fellow, and wanted my help, says 
“Mr. Adams, if you will, you can help us get this line 
established.” I said “No, I can’t help you get it esta­
blished”, the very words I told them, “You might have the 
finest lot in the world, and I could buy it if I had the 
money, and might build a fine house on it, but you 
couldn’t hire me to live in it for any amount of money. 
White people and colored people are not supposed to live 
close together.”



174

The Court:
We will have order back there now.

The Witness:
(Continuing) “Because you know what that leads u p  to 

when you do that.”

Mr. Marshall:
Excuse me, Your Honor. I think at some stage this 

volunteer testimony should be stopped.

The Court:
I sustain the objection. Ask him questions, whatever you 

want to ask him.

Q. Was that a part of your conversation?
A. Yes, that was part of the conversation with Oscar 

Adams. Of course, he is dead now,—Arthur Shores. They 
called me up, to come to my house, and I told them to come 
out to my house, 211 9th Court West. I met them there 
about 2:30 or 3:00 o’clock in the afternoon. I don’t know 
what day of the month it was, or anything like that, about 
how long ago, that has been two and a half or three years 
ago. Since then they have been wanting to break over 
Center Street there and come on this side and build houses.

Q. Do you know the sentiment out in the Graymont 
section pretty well?

A. Yes, pretty well, pretty well, 
f Q. I will ask you if in your opinion and judgment, 
if there is a clear and present grave danger to public peace 
and order, and to property values out there if the white 
section that is in controversy here is invaded by the 
Negroes?

A. Yes, sir.



175

Mr. Marshall:
If Your Honor please, we object.

A. Very great.
I

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception and offer to show that there 

is. You may take the witness.

Cross Examination.

By Mr. Shores:
Q. Mr. Adams, do you recall when a colored committee 

met with your Association down at the McCoy Church 
some four or five or six years ago?

A. Yes. it wasn’t five or six years ago, Arthur, it was 
some—I would say four years ago.

Q. About four years ago?
A. Yes.
Q. And that this committee requested only that the 

Graymont Civic Association would permit that line to be 
moved to Center Street? Did they make that request?

A. No. In fact we never did know what you fellows 
did want. We don’t know yet what you want. Now, we are 
about to find out what you want.

Q. Do you recall that?
A. We really didn’t know what you wanted, and that’s 

the reason we called you in. We didn’t ask you any ques­
tions that night, you talked, four or five of you talked, but 
we didn’t ask you any questions.

Q. We did make a request that you move the line to 
Center Street?

A. I believe so.



176

Q. I believe you stated that the agreement made some 
20 years ago, 20 some years ago, was that up to Center 
Street, east of Center Street, Negroes, with the exception 
of a small area, and to bring it to Center Street with the 
exception of a small area, is that right?

A. Yes. Well, now, you know, Arthur, that line just 
goes two blocks, and then cuts back, and I think maybe 
there are four or five blocks across, maybe eight or ten 
blocks.

Q. Were you still living in the area when the Gray- 
mont Civic Association recommended this 150 foot buffer 
area east of Center Street?

A. Oh, yes, I have been living there a long time.
Q. Do you recall when they recommended this 150 

foot buffer strip this year?
A. I was not over there this year. I left last year, you 

see. I haven’t been there, I left last summer.

Mr. Shores:
That is all.

(Witness excused.)

The Court:
We will adjourn at this time to be back in the morning 

promptly at 10 o’clock.

(Whereupon, at 4:45 p. m., December 12, 1949, an 
adjournment was had until 10:00 a. m., Tuesday, Decem­
ber 13, 1949.)

Tuesday, December 13, 1949, at 10:00 o’clock a. m.

The Court:
All right, we will proceed, gentlemen.



177

Mr. Wilkinson:
Mr. Carr, come around.

D. M. CARR, called as a witness on behalf of the De­
fendants, being first duly sworn, testified as follows:

Direct Examination.
By Mr. Wilkinson:

Q. Is your name D. M. Carr?
A. That is correct.
Q. Mr. Carr, are you a Court Reporter?
A. I am.
Q. How many years experience have you had as a 

Court Reporter?
A. Somewhere between 35 and 40.
Q. I will ask you if you stenographically reported the 

proceedings of a Negro mass meeting held on the lawn of 
the Smithfield Community House in Birmingham, Ala­
bama, on the 17th day of August, 1949, about 7:30 p. m.? 

A. I did.
, Q. After reporting that stenographically, did you trans­
cribe your notes, and is the document I hand you a correct 
transcript of your notes?

A. I did, and it is.

Mr. Wilkinson:
That is all. Mr. Henley, come around please, if there is 

no cross examination of this witness.

(Witness excused.)

Mr. Wilkinson:
The parts that I have underscored are what I proposed 

to offer in evidence directly after you have had an oppor­
tunity to look them over.



178

( D e f e n d a n t s ’ E x h i b i t  N o , 18 w a s  m a r k e d  f o r  i d e n t i f i c a ­

t i o n . )

W , E . H E N L E Y , c a l l e d  a s  a  w i t n e s s  f o r  t h e  D e f e n d a n t s ,  
b e i n g  f i r s t  d u l y  s w o r n ,  t e s t i f i e d  a s  f o l l o w s :

D i r e c t  E x a m i n a t i o n .

B y  M r .  W i lk in s o n :

Q . Y o u r  n a m e  i s  M r .  W a l t e r  E . H e n l e y ?
A . Y e s ,  s i r .
Q . M r .  H e n le y ,  h o w  l o n g  h a v e  y o u  b e e n  l i v i n g  i n  t h e  

B i r m i n g h a m  d i s t r i c t ?
A . I  w a s  b o r n  i n  B i r m i n g h a m .  I  w a s  b o r n  i n  1 8 7 7 .

Q . W i l l  y o u  f o r  t h e  r e c o r d  g i v e  u s  a  b r i e f  a c c o u n t  o f 
y o u r  b u s i n e s s  e x p e r i e n c e  i n  B i r m i n g h a m ?

A . A s  a  y o u n g  m a n  I  w a s  c o n n e c t e d  w i t h  b a n k in g .  
L a t e r  I  l e f t  b a n k i n g  a n d  u n d e r t o o k  t h e  d e v e l o p m e n t  a n d  
t h e  o p e r a t i o n  o f  s o m e  l a r g e  c o a l  p r o p e r t i e s  a b o u t  4 0  m i le s  

t o  t h e  s o u t h  a n d  w e s t .  I n  1 9 2 5  I  r e t u r n e d  t o  a c t i v e  b a n k in g ,  
a n d  I  h a v e  b e e n  a c t i v e  i n  b a n k i n g  s i n c e  t h a t  t i m e .

Q . Y o u  w e r e  P r e s i d e n t  o f  t h e  B i r m i n g h a m  T r u s t  &  
S a v i n g s  C o m p a n y ,  w h i c h  i s  n o w  t h e  B i r m i n g h a m  T r u s t  

N a t i o n a l  B a n k  I  b e l i e v e  i t  is ,  i s n ’t  i t ?
A . Y e s ,  s i r .

Q . F o r  h o w  m a n y  y e a r s  w e r e  y o u  P r e s i d e n t  o f  t h a t  
i n s t i t u t i o n ?

A . I  w a s  P r e s i d e n t  f o r  12 y e a r s .
Q. What is your connection now with that institution?
A . I  a m  C h a i r m a n  o f  t h e  B o a r d .
Q . Y o u  a r e  s t i l l  a c t i v e l y  i n  t h e  b a n k i n g  b u s i n e s s ,  a r e  

y o u  n o t ?
A . Y e s ,  s i r .

Q . I n  y o u r  i n d u s t r i a l  e x p e r i e n c e  d i d  y o u  h a v e  o c c a s ­
i o n  t o  c o m e  i n  c o n t a c t  w i t h  m a n y  o r  f e w  N e g r o  c i t i z e n s ?



179

A. I have employed a great many of them, a great 
many Negro citizens.

Q. In your experience in the banking business have 
you had few or many business dealings with Negro 
citizens?

A. A  great many dealings with them.
Q. What is the type of dealings that you have had with 

the Negro citizens?
A, Well, I always have tried to encourage them to save 

their money, and when I contact them I encourage them 
to do that, and open bank accounts. I encourage them in the 
owning of homes and the building of homes. I finance them 
when they have undertakings of a business nature, con­
traction, and the loan on their houses.

Q. So that your institiution makes loans on white and 
colored property and white and colored business and resi­
dential property, does it?

A. Yes, sir.
Q. Mr. Henley, are you familiar with property values in 

Birmingham, residential property values generally, and 
have you been familiar with those values over a period 
of years?

A. Yes, sir.
Q. Your banking institution has a Trust Department, 

does it not?
A. Yes, sir.
Q. I will ask you whether or not that Trust Depart­

ment under your supervision and direction has large num­
bers of loans scattered all over the City of Birmingham in 
the nature of mortgage loans?

A. Yes, sir.
Q. Are you familiar with the district out here known 

as the Graymont-College Hills section, North Smithfield?
A. Yes, sir.
Q. Formerly owned by Dr. J. R. Smith I believe, in the 

early days, was it not?



180

A, Yes, sir.
Q. I will ask you whether or not, if the restrictions in 

the zoning of Birmingham are removed from that territory 
and from residential property in Birmingham in general 
with respect to the areas that are classified white residen­
tial and colored residential, and the difference between 
them is blotted out or ignored or disregarded, whether or 
not as a matter of fact property values in the residential 
areas would decrease?

Mr. Marshall:
If Your Honor please, we object.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception. It may be that we can save the 

time of calling a number of witnesses to the stand. I 
wanted to elaborate on that considerably, if Your Honor 
please, and get them to explain why the property values 
would decrease, and to explain to the Court that that is 
a fact. There is nothing speculative about that, it is just 
as certain to take place as the sun rises and sets, because 
•there are certain well recognized standards in the financial 
world, and I thought the Court would be entitled to that 
information for what it might be worth in this case.

The Court:
Well, I want you to make a full offer to show all the 

facts necessary. Under the decisions of the Supreme Court 
of the United States I don’t think it is admissible in 
evidence, unless they change their rules.



181

M r. W i l k i n s o n :
W e l l ,  I  b e g  t o  d i f f e r  w i t h  t h e  C o u r t  a b o u t  t h a t ,  b u t  I  

a m  n o t  g o in g  t o  s t o p  t o  a r g u e  i t  a t  t h i s  p o i n t .  I  w i l l  t a k e  

t h a t  u p  i n  m y  a r g u m e n t .  I  w a n t  t o  b e  s u r e  t h a t  I  g e t  t h e  
f u l l  f a c t u a l  p i c t u r e  b e f o r e  t h e  C o u r t ,  o r  a t  l e a s t  a n  e f f o r t  

to  g e t  i t  b e f o r e  t h e  C o u r t .

T h e  C o u r t :
I  w a n t  y o u  t o  h a v e  t h e  f u l l  b e n e f i t  o f  t h a t  o p p o r t u n i t y  

to o , f o r  p u r p o s e s  o f  a p p e a l  i n  t h e  c a s e .

Q . M r .  H e n l e y ,  I  w i l l  a s k  y o u  w h e t h e r  o r  n o t  y o u  k n o w  

w h e t h e r  o r  n o t  t h e r e  i s  a n y t h i n g  s p e c u l a t i v e  a b o u t  t h e  e f ­
f e c t  u p o n  p r o p e r t y  v a l u e s ,  r e s i d e n t i a l  v a l u e s  i n  B i r m i n g ­

h a m  i f  t h e  p r o v i s i o n s  o f  t h e  z o n i n g  l a w  a r e  n o  l o n g e r  a p ­

p l i c a b le  a n d  e n f o r c e a b l e —

M r, M a r s h a l l :
O b je c t i o n .

Q . — w i t h  r e s p e c t  t o  w h i t e  a n d  c o l o r e d  a r e a s ?

M r. M a r s h a l l :
O b je c t i o n .

T h e  C o u r t :
R e a d  m e  t h a t  q u e s t i o n ,  M r .  R e p o r t e r .

( T h e  q u e s t i o n  w a s  r e a d . )

T h e  C o u r t :
I  s u s t a i n  t h e  o b j e c t i o n .

M r . W i l k in s o n :

W e  r e s e r v e  a n  e x c e p t i o n .  W e  o f f e r  t o  s h o w  i f  Y o u r  

H o n o r  p l e a s e  b y  t h i s  w i t n e s s  t h a t  t h e  e f f e c t  u p o n  r e s i d e n -



182

tial property values in Birmingham, if the provisions of 
the zoning law with respect to white and colored areas is 
not enforceable is not a matter of speculation, but that 
this witness can and will testify as a matter of fact that 
over a period of years this district, this City, and particu­
larly this Graymont-Coliege Hills area, has been built 
up, the residences have been built by white and colored 
alike, and financed by his institution and by other finan­
cial institutions in Birmingham, all of whom relied upon 
the stability which it was believed that the zoning laws 
afforded that property, to colored and white alike. And if 
those provisions are no longer enforceable, that the pro­
tection it was believed that the property enjoyed, both 
white and Negro, is removed, the stabilizing effect is de­
stroyed, and that when that is recognized, that as a 
matter of fact the property thus affected very m ater­
ially depreciates in value from 25 per cent on up, 
according to its location and character.

I don’t like to put a long string of questions if Your 
Honor understands just what I am trying to show.

The Court:
That’s all right. I think I understand it, and I want 

you to have that showing, but I don’t think the evi­
dence is admissible.

Mr. Wilkinson:
All right. We reserve an exception.

Q. Mr. Henley, what has been your experience with 
the large number of the Negro race that you have 
come in contact with with respect to their attitude to­
wards residential segregation?



183

M r .  M a r s h a l l :
I f  Y o u r  H o n o r  p l e a s e  t h e  a t t i t u d e  o f  l a r g e  n u m b e r s  

o f  N e g r o e s  h a s  n o t h i n g  t o  d o  w i t h  t h i s  c a s e  a t  a l l ,  

t h e  a t t i t u d e  o f  e i t h e r  s id e .  I t  i s  i m m a t e r i a l .

T h e  C o u r t :
I  s u s t a i n  t h e  o b j e c t i o n .

M r .  W i l k i n s o n :
We r e s e r v e  a n  e x c e p t i o n  a n d  o f f e r  t o  s h o w  b y  t h i s  

w i t n e s s  t h a t  o v e r  a  p e r i o d  o f  y e a r s ,  a n d  o u t  o f  t h e  
v a s t  n u m b e r  o f  c o n t a c t s  t h a t  h e  h a s  h a d  w i t h  t h e  

m e m b e r s  o f  t h e  N e g r o  r a c e  t h a t  t h e y  h a v e  b e e n  o u t ­

s p o k e n  i n  t h e i r  a p p r o v a l  o f  r e s i d e n t i a l  s e g r e g a t i o n ,  

a n d  o u t s p o k e n  i n  t h e i r  r e c o g n i t i o n  o f  i t s  v a l u e  t o  t h e i r  

r a c e  a s  w e l l  a s  t o  t h e  w h i t e  r a c e .

t h e  C o u r t :
I  s u s t a i n  t h e  o b j e c t i o n .

M r .  W i l k i n s o n :
W e  r e s e r v e  a n  e x c e p t i o n .

Q . M r .  H e n l e y ,  d o  y o u  k n o w  w h e t h e r  o r  n o t  a  v e r y  

l a r g e  n u m b e r  o f  t h e  w h i t e  a n d  c o l o r e d  h o m e s  i n  t h e  

G r a y m o n t - C o l l e g e  H i l l s  s e c t i o n  w e r e  c o n s t r u c t e d  s u b ­

s e q u e n t  t o  1 9 2 6 , w h e n  t h e  z o n i n g  l a w  w a s  a d o p t e d  b y  

t h e  C o m m i s s i o n e r  o f  t h e  C i t y  o f  B i r m i n g h a m ?
A . W e l l ,  t h e  8 t h  A v e n u e  o r  t h e  S m i t h f i e l d  H o u s i n g  

P r o j e c t  h a s  b e e n  c o n s t r u c t e d  s i n c e  1 9 2 6 . A  g r e a t  

m a n y  N e g r o  h o u s e s  t o  t h e  n o r t h  a n d  t h e  w e s t  o f  t h e  

H i g h l a n d s  t h e r e ,  t h o s e  h o u s e s  h a v e  b e e n  b u i l t  s i n c e  

1926 . T h e r e  a r e  s e v e r a l  b l o c k s  o f  v e r y  a t t r a c t i v e  

h o u s e s .



184

Q , W h a t  a b o u t  t h e  d e v e l o p m e n t  o f  t h e  w h i t e  p r o p ­

e r t y  i n  t h e  s a m e  t e r r i t o r y ,  i n  t h e  a r e a  z o n e d  w h i t e ,  

h a s  t h e r e  b e e n  c o n s i d e r a b l e  d e v e l o p m e n t  i n  t h a t  a r e a  
s i n c e  1 9 2 6 ?

A . W e l l ,  t h e  p r o p e r t y  t h a t  i s  a l o n g  C e n t e r  S t r e e t  

w h e r e  t h e  c o n f l i c t  h a s  b e e n  r a t h e r  a c t i v e ,  t h e r e  h a v e  
b e e n  m a n y  w h i t e  h o u s e s  b u i l t  i n  t h a t  a r e a .

Q , N o w ,  w e s t  o f  C e n t e r  S t r e e t ?

A . W e s t  o f  C e n t e r  S t r e e t  t h e r e  h a v e  b e e n  a  g o o d  

m a n y  h o u s e s  b u i l t  o v e r  i n  t h a t  s e c t i o n  t o w a r d s  t h e  
B i r m i n g h a m  S o u t h e r n  C o l l e g e  a r e a .

Q . S i n c e  1 9 2 6 ?
A . Y e s ,  s i r .

Q . M r .  H e n l e y ,  I  w o u l d  l i k e  t o  a s k  y o u  w h e t h e r  o r  

n o t  i n  v i e w  o f  y o u r  r e s i d e n c e  a n d  e x p e r i e n c e  i n  B i r m ­

i n g h a m  y o u  k n o w  o f  a n y  b e t t e r  w a y  f o r  s o c i e t y  in  

B i r m i n g h a m  t o  p r o t e c t  i t s e l f  a g a i n s t  t h e  r e s u l t  o f  t h e  
f e e l i n g  o f  r a c e  h o s t i l i t y  t h a t  h a s  b e e n  m a n i f e s t e d  h e r e  

t h a n  b y  t h e  z o n i n g  l a w s  o f  t h e  C i t y  w h i c h  w e  c l a i m  
w e r e  i n  f o r c e  a n d  e f f e c t ?

M r .  M a r s h a l l :
W e  o b j e c t .

T h e  C o u r t :

I  s u s t a i n  t h e  o b j e c t i o n .

M r .  W i l k i n s o n :

We reserve an exception a n d  e x p e c t  t o  s h o w  t h a t  
h e  d o e s  n o t .  Y o u  m a y  t a k e  t h e  w i t n e s s .

M r .  S h o r e s :

N o  q u e s t i o n s .

( W i t n e s s  e x c u s e d . )



185

M r .  W i l k i n s o n :

I  s h o u l d  l i k e  t o  o f f e r  i n  e v i d e n c e  s o m e  p o r t i o n s  o f  

t h e  t r a n s c r i p t  t h a t  w a s  i d e n t i f i e d  b y  t h e  w i t n e s s  M r .  

C a r r ,  t h e  C o u r t  R e p o r t e r .  H h i s  i s  i d e n t i f i e d  b y  t h e  

w i t n e s s  a s  a  s t e n o g r a p h i c  r e p o r t  o f  t h e  N e g r o  m a s s  

m e e t i n g '  h e l d  o n  t h e  l a w n  o f  t h e  S m i t f i e l d  C o m m u n i t y  

H o u s e ,  B i r m i n g h a m ,  A l a b a m a ,  a t  7 :3 0  p .  m . ,  A u g u s t  

17, 1949 .

M r .  S h o r e s :

W e  w a n t  t o  o b j e c t  t o  t h e  i n t r o d u c t i o n  o f  t h o s e  e x ­

c e r p t s  o n  t h e  g r o u n d  i t  i s  i m m a t e r i a l ,  i r r e l e v a n t ,  i n ­

c o m p e t e n t .  I t  h a s  t o  d o  w i t h  a  m a s s  m e e t i n g  t h a t  

h a s  n o t h i n g  a t  a l l ,  n o  r e m o t e  c o n n e c t i o n  w i t h  t h i s  s u i t  

h e r e .

M r .  W i l k i n s o n :

I  t h i n k  i t  h a s  a  v e r y  m a t e r i a l  b e a r i n g  o n  i t ,  i f  Y o u r  

H o n o r  p l e a s e .

T h e  C o u r t :

H a v e  y o u  g o t  t h e  p o r t i o n s  m a r k e d  t h a t  y o u  o f f e r ?  

M r .  W i l k i n s o n :

I  c a n  p u t  t h e m  i n  q u o t a t i o n s  i f  Y o u r  H o n o r  w o u l d  

l i k e  t o  h a v e  t h e m  t h a t  w a y .  T h e  p o r t i o n  i n  q u o t a t i o n  

o n  p a g e  2:

“ W e  a r e  g a t h e r e d  h e r e  t o n i g h t  t o  d i s c u s s  a  g r a v e  

s i t u a t i o n .  W e ,  w h o  h a v e  b e l i e f  i n  t h e  v e r y  p r i n c i p l e s  

o f  s o  g r e a t  a  c o u n t r y ;  w e ,  w h o  h a v e  f o u g h t  o n  e v e r y  

b a t t l e  f i e l d  t o  d e f e n d  t h o s e  p r i n c i p l e s ,  a n d  w e  w h o  

s h a l l  f i g h t  a n y w h e r e  t o  d o  s o ,  a r e  g a t h e r e d  h e r e  f o r  

t h a t  v e r y  p u r p o s e  t o n i g h t , — t o  s t a n d  o n  t h e  C o n s t i ­

t u t i o n  a n d  t h e  p r i n c i p l e s  f o r  w h i c h  i t  s t a n d s .  W e  a r e



186

g a t h e r e d  h e r e  t o n i g h t  b e c a u s e  o f  t h e  b o m b i n g s  w h i c h  

h a v e  t a k e n  p l a c e  i n  o u r  c o m m u n i t y .  O n e  w h o m  y o u  

h a v e  h e a r d  p r a y  f o r  y o u ,  a n d  o t h e r s  w h o  h a v e  b e e n  

b o m b e d ,  a n d  t h e i r  h o m e s  t h r e a t e n e d  b e c a u s e  t h e y  

d a r e d  t o  s t a n d  l i k e  d e s c e n t  a n d  r e s p e c t a b l e  p e o p l e ,  

b e c a u s e  t h e y  h a v e  d a r e d  t o  l i v e  w h e r e  t h e y  b e l i e v e  

t h e y  h a d  a  r i g h t  t o  l i v e . ”

T h e  p a r t  i n  q u o t a t i o n s  o n  p a g e  4 ,  w i t h  a  f i g u r e  o n e  

o n  t h e  m a r g i n  a n d  a  c i r c l e  s o  a s  t o  i d e n t i f y  i t :

“ T h e s e  s i x  b o m b i n g s  i n  t h e  n i g h t t i m e  r e p r e s e n t s  

i n t o l e r a n c e ,  h a t r e d  a n d  b i g o t r y . ”

A n d  t h e n  t h e  p a r t  i n  q u o t a t i o n s  o n  p a g e  4  w i t h  a  

t w o  a n d  a  c i r c l e  o n  t h e  m a r g i n  t o  i d e n t i f y  i t :

“ A s  I  h a v e  s a i d  m a n y  t i m e s ,  I  h a v e  m a d e  p e a c e  

w i t h  m y  G o d  a n d  I  a m  s p i r i t u a l l y  p r e p a r e d  f o r  t h e  

c o n s e q u e n c e s .  ( A p p l a u s e )  T h e y  m a y  b o m b  m e n ’s 

b o d i e s  b u t  t h e y  c a n n o t  b r e a k  a  m a n ’s  s p i r i t .  ( A p ­
p l a u s e ) ”

T h e  p a r t  o n  p a g e  5 i n  q u o t a t i o n s ,  m a r k e d  o n e  o n  t h e  

m a r g i n  w i t h  a  r i n g  a r o u n d  i t :

“ J e f f e r s o n  C o u n t y  w a s  i n c o r p o r a t e d  i n  1 8 1 9 .  I n  

1948  a  J u s t i c e  o f  t h e  S u p r e m e  C o u r t  s a i d  a l l  z o n i n g  l a w s  
w e r e  u n c o n s t i t u t i o n a l . ”

T h e  p a r t  i n  q u o t a t i o n s  o n  p a g e  5 w i t h  a  t w o  o n  t h e  
m a r g i n ,  w i t h  a  c i r c l e  a r o u n d  i t :

“ N o w ,  t h e r e  h a v e  b e e n  s i x  b o m b i n g s , — n o  l e s s —  

score six to nothing in f a v o r  of t h e  b o m b i n g s . ”



187

T h e  p a r t  i n  q u o t a t i o n s  o n  p a g e  6:

“ N o w ,  t h e  o t h e r  n i g h t  t h e  b o m b e r s  a g a i n  r e t u r n e d .  

T h e y  d i d n ’t  c o m p l e t e  t h e i r  m i s s i o n  b u t  t h e y  c a m e  

v e r y  c l o s e .  T h e y  t h r e w  t h e i r  b o m b s ,  t h e r e  w a s  s o  

m u c h  d y n a m i t e  t h e y  a r o u s e d  m e  i n  m y  b e d  o n  E n o n  

R i d g e . ”

T h e  p a r t  i n  q u o t a t i o n s  o n  p a g e  12:

“ N o w ,  t h e r e  a r e  e n o u g h  o f  u s  here t o n i g h t  t o  d o  

t h e  t h i n g  t h a t  i s  n e e d e d  t o  b e  d o n e ,  a n d  w e  w i l l  n o t  

c e a s e  c a l l i n g  o n  y o u  u n t i l  t h e  f l a g  o f  v i c t o r y  s h a l l  n o t  

o n l y  w a v e  o v e r  t h e  b a t t l e  f i e l d  o f  C e n t e r  S t r e e t ,  b u t  

t h e  f l a g  o f  v i c t o r y  w i l l  b e  w a i v i n g  a l l  o v e r  B i r m i n g ­

h a m . ”

T h a t ’s  a l l ,  p a g e  12 i s  t h e  l a s t  q u o t a t i o n .

T h e  C o u r t :
W h a t  i s  t h i s  e x h i b i t  n u m b e r ,  M r .  C l e r k ?

T h e  C l e r k :
I t  w i l l  b e  D e f e n d a n t s ’ E x h i b i t  18.

M r .  W i l k i n s o n :
I  m a y  s a y  I  h a v e  n o  o b j e c t i o n  t o  t h e  e n t i r e  t r a n ­

s c r i p t  b e i n g  o f f e r e d .  I  d i d n ’t  o f f e r  i t  b e c a u s e  I  t h o u g h t  a  

g r e a t  d e a l  i n  i t  w a s  i r r e l e v a n t ,  b u t  i f  t h e  C o u r t  h a s  

a n y  i d e a  t h a t  I  w o u l d  h a v e  t o  o f f e r  i t  a t  a l l  a n d  w o u l d  

n o t  b e  e n t i t l e d  t o  o f f e r  a  p a r t  o f  i t ,  t h e n  I  w i l l  o f f e r  i t  

a l l .



188

T h e  C o u r t :
No, I  h a v e  n o  i d e a  l i k e  t h a t .  I  t h i n k  y o u  a r e  e n t i t l e d  

t o  o f f e r  p o r t i o n s  o f  i t .

M r .  W i l k i n s o n :

Y e s ,  s i r .

H .  B .  H A N S O N ,  J R . ,  c a l l e d  a s  a  w i t n e s s  o n  b e h a l f  

o f  t h e  D e f e n d a n t s ,  b e i n g  f i r s t  d u l y  s w o r n ,  t e s t i f i e d  

a s  f o l l o w s :

D i r e c t  E x a m i n a t i o n .

B y  M r .  W i l k i n s o n :
Q .  G i v e  u s  y o u r  n a m e  f o r  t h e  r e c o r d ,  p l e a s e ,  s i r .  

A .  H .  B .  H a n s o n ,  J r .

Q .  W h e r e  d o  y o u  l i v e ?

A .  7 00  8 t h  T e r r a c e  W e s t .
Q .  I s  t h a t  i n  t h e  a r e a  o u t  i n  t h e  w e s t e r n  p o r t i o n  o f  

t h e  C i t y  k n o w n  a s  t h e  G r a y m o n t - C o l l e g e  H i l l s  a r e a ?  

A .  Y e s ,  s i r .

Q .  Y o u  l i v e  a t  8 0 0  w h a t ?

A .  7 00  8 t h  T e r r a c e  W e s t .

Q .  7 00  8 t h  T e r r a c e  W e s t ?

A .  T h a t  i s  7 t h  S t r e e t  W e s t .
Q .  H o w  f a r  i s  t h a t  f r o m  C e n t e r  S t r e e t ?

A .  7 t h  S t r e e t .

Q .  S i r ?
A .  7 t h  S t r e e t .  Y o u  s e e ,  i t  s t a r t s  t h e r e ,  a n d  y o u  g o  

o n e ,  t w o ,  t h r e e .
Q .  I  s e e .  Y o u  a r e  7 t h  S t r e e t  W e s t  o f  C e n t e r  S t r e e t ?  

A .  O f  C e n t e r  S t r e e t .
Q .  H o w  l o n g  h a v e  y o u  l i v e d  i n  t h a t  c o m m u n i t y ?



1 89

A .  I  m o v e d  t h e r e  a f t e r  r e t u r n i n g  f r o m  t h e  w a r  i n  

1946.
Q .  Y o u  h a v e  b e e n  t h e r e  s i n c e  1 9 4 6 ?

A .  1 9 4 6 .
Q .  D u r i n g  t h a t  t i m e  t h a t  y o u  h a v e  l i v e d  t h e r e ,  

h a v e  y o u  b e e n  c o n n e c t e d  w i t h  t h e  G r a y m o n t  C i v i c  

A s s o c i a t i o n  i n  a n y  w a y ?
A .  I  a m  t h e  i m m e d i a t e  p a s t  P r e s i d e n t .  I  w a s  

P r e s i d e n t  f o r  t w o  y e a r s .
Q .  W h a t  y e a r s  w e r e  y o u  P r e s i d e n t ?
A .  I  w a s  P r e s i d e n t  u p  u n t i l  a b o u t  t h r e e  m o n t h s  

a g o .
Q .  Y o u  w e r e  P r e s i d e n t  i n  1 9 4 8 ?
A .  Y o u  s e e ,  o u r  y e a r  s p l i t s  a b o u t  t h e  m i d d l e ,  s o  

t h a t  m e a n s  I  w a s  P r e s i d e n t  i n  ’4 6 — ’4 7 — n o , ’4 7 — '4 8 ,— ’4 8 —  

’49.
Q .  T h e n  y o u r  t e r m  o f  o f f i c e  o u t  t h e r e  r u n s  a b o u t  

f r o m  J u l y  t o  J u l y ?

A .  T h a t ’s  r i g h t .
Q . S o  t h e n  y o u  w e r e  P r e s i d e n t  o f  t h e  G r a y m o n t  

C i v i c  A s s o c i a t i o n  f r o m  a b o u t  J u l y ,  ’47  t o  a b o u t  ’4 9 ?

A .  T h a t ’s  r i g h t .
Q .  Y o u  w e r e  f a m i l i a r  w i t h  t h a t  s e c t i o n  b e f o r e  y o u  

a c t u a l l y  m o v e d  o u t  t h e r e ?
A .  N o ,  s i r ,  o n l y  o n  t h e  b a s i s  t h a t  i t  w a s  n e a r  B i r m ­

i n g h a m  S o u t h e r n  C o l l e g e .  B e i n g  a  M e t h o d i s t ,  c o n s e ­

q u e n t l y  w h e n  I  m o v e d  t o  B i r m i n g h a m  I  w a n t e d  t o  

m o v e  o u t  c l o s e  t o  t h e  c o l l e g e ,  w h i c h  i s  u s u a l l y  a  v e r y  

d e s i r a b l e  r e s i d e n t i a l  d i s t r i c t .
Q .  Y o u  s a y  t h a t  B i r m i n g h a m - S o u t h e r n  C o l l e g e  i s  

a  M e t h o d i s t  i n s t i t u t i o n  a n d  o p e r a t e s  a s  a  m a g n e t  t h a t  

d r a w s  y o u  g o o d  M e t h o d i s t s  o u t  t h e r e ,  i s  t h a t  r i g h t ?

A .  Y e s ,  s i r .
Q .  N o w ,  d u r i n g  t h e  t i m e  t h a t  y o u  w e r e  P r e s i d e n t  

o f  t h e  G r a y m o n t  C i v i c  A s s o c i a t i o n  d i d  y o u  p a r t i c i p a t e



190

i n  a n y  o f  t h e  c o n f e r e n c e s  t h a t  w e r e  h e l d  b e t w e e n  t h a t  

A s s o c i a t i o n  o r  c o m m i t t e e s  o f  t h a t  A s s o c i a t i o n  a n d  

c o m m i t t e e s  o f  t h e  N e g r o  c i t i z e n s  o u t  t h e r e ?

A .  N o ,  s i r .  T h e  o n l y  m e e t i n g s  t h a t  I  h e l d  w e r e  

w i t h  t h e  C i t y  C o m m i s s i o n ,  a t  t h e  C o m m i s s i o n  m e e t ­

i n g s  a n d  o t h e r w i s e ,  a n d  o f  c o u r s e  a t  t h e i r  m e e t i n g s  

I  w a s  t o l d  a t  t h e  t i m e  t h a t  t h e y  w o u l d  m e e t  w i t h  m e .  

I  w a i t e d ,  b u t  n e v e r  d i d  r e c e i v e  a n y  c a l l .

Q .  S o  y o u  d i d  n o t  a c t u a l l y  p a r t i c i p a t e  i n  a n y  c o n ­

f e r e n c e  w i t h  t h e  c o l o r e d  c o m m i t t e e ?

A .  N o ,  s i r ,  o t h e r  t h a n  a t  t h e  C i t y  C o m m i s s i o n  

m e e t i n g  i n  w h i c h  t h e y  w e r e  p r e s e n t .

Q .  W a s  t h e r e  a n y  a g i t a t i o n  g o i n g  o n  w i t h  r e f e r e n c e  

t o  t h e  N e g r o  c i t i z e n s  c r o s s i n g  C e n t e r  S t r e e t  a t  t h e  

t i m e  y o u  m o v e d  o u t  t h e r e ?

A .  I  h a d  n o  k n o w l e d g e  o f  i t  a t  t h e  t i m e  I  m o v e d  o u t  

t h e r e .

Q .  T h e n  t h e  a g i t a t i o n  t h a t  y o u  k n o w  a b o u t  h a s  d e ­

v e l o p e d  s i n c e  y o u  m o v e d  o u t  t h e r e ?
A .  Y e s ,  i t  c a m e  t o  m y  k n o w l e d g e  a f t e r  I  p u r c h a s e d  

m y  h o m e  i n  t h a t  a r e a .

Q .  T h i s  m a p  i s  i n  e v i d e n c e .  T h e  s h a d e d  a r e a s ,  a c ­

c o r d i n g  t o  t h e  l e g e n d  o n  t h e  m a p ,  a r e  N e g r o ,  a n d  

t h e  u n s h a d e d  a r e a s  a r e  w h i t e .  N o w ,  f r o m  9 t h  C o u r t  

n o r t h  t o  1 1 t h  C o u r t ,  t h r e e  b l o c k s  i n  a r e a  t h a t  w a y ,  a n d  

f r o m  C e n t e r  S t r e e t  w e s t e r w a r d l y ,  i s  t h a t  h e a v i l y  p o p ­

u l a t e d  w i t h  w h i t e  p e o p l e ,  o r  a r e  t h e r e  n u m e r o u s  v a c ­

a n c i e s  i n  t h e r e ,  o r  j u s t  g i v e  u s  y o u r  i d e a  a b o u t  t h e  

d e n s i t y  o f  p o p u l a t i o n  t h e r e ?

A .  T h e  d e n s i t y  o f  p o p u l a t i o n  a s  y o u  g e t  n e a r e r  

B i r m i n g h a m  S o u t h e r n  C o l l e g e ,  w h i c h  i s  o v e r  o n  A r k -  

a d e l p h i a  R o a d ,  a b o u t  n i n e  b l o c k s  a w a y ,  i s  q u i t e  

d e n s e .  O f  c o u r s e ,  a s  y o u  g e t  c l o s e r  a n d  c l o s e r  t o  t h e  

l i n e ,  t h e  r e l u c t a n c e  t o  b u i l d  o n  t h e  l i n e  h a s  c a u s e d  

t h a t  a r e a  n o t  t o  d e v e l o p  a s  f u l l y  a s  t o  t h e  w e s t  o f  i t .



191

T h e  f i r s t  b l o c k  i s  n o t  t o o  w e l l  d e v e l o p e d ,  I  w o u l d  s a y  

o v e r  t o  F i r s t  S t r e e t  W e s t ,  i n  m y  i n v e s t i g a t i o n  o n  t h e  

c o m m i t t e e .
O f  c o u r s e ,  n o t  b e i n g  f a m i l i a r  w i t h  t h e  a r e a  w h e n  I  

m o v e d  i n  t h e r e ,  a n d  t h e  P r e s i d e n t  o f  t h i s  C i v i c  A s ­

s o c i a t i o n  a n d  a n  e n g i n e e r ,  I  m a d e  a  v e r y  c a r e f u l  

s t u d y  o f  e a c h  b l o c k  t o  s e e  w h a t  t h e  s i t u a t i o n  w a s ,  

t y i n g  t o  b e  c o m p l e t e l y  f a i r  i n  a n y  a n s w e r  t h a t  I  m i g h t  

m a k e ,  i n  m a k i n g  a  r e c o m m e n d a t i o n  a s  t o  w h a t  s h o u l d  

b e  d o n e  i n  t h a t  a r e a .
Q .  Y o u  s a y  y o u  a r e  a n  e n g i n e e r  b y  p r o f e s s i o n ?

A .  Y e s ,  s i r ,  a  p r o f e s s i o n a l  e n g i n e e r .
Q .  T h e n  a s  I  u n d e r s t a n d  y o u r  t e s t i m o n y ,  t h e  h e a v i ­

e s t  p o p u l a t e d  p a r t  o f  t h e  a r e a  i s  f u r t h e r  w e s t ,  a n d  

k i n d  o f  f a n s  o u t  t o  a  f e a t h e r e d g e ,  s o  f a r  a s  t h e  w h i t e  

p o p u l a t i o n  i s  c o n c e r n e d ,  a s  y o u  a p p r o a c h  C e n t e r  

S t r e e t ?
A .  I t  i s  f a i r l y  d e n s e  u p  t o  S e c o n d  S t r e e t  W e s t ,  a n d  

t h e n  t h i n s  o u t  a s  y o u  g e t  i n t o  t h e  l a s t  t w o  b l o c k s .

Q .  N o w ,  e a s t  o f  C e n t e r  S t r e e t ,  i s  t h e  N e g r o  a r e a  

h e a v i l y  p o p u l a t e d  o r  n o t ?
A .  T h e r e  a r e  q u i t e  a  f e w  v a c a n t  l o t s  e a s t  o f  C e n t e r  

S t r e e t ,  e s p e c i a l l y  o n  t o p  o f  t h e  h i l l ,  g o i n g  a l o n g  C e n t e r  

S t r e e t .  I n  o t h e r  w o r d s ,  t h a t  w a s  z o n e d  w h i t e  u p  u n t i l  

t h e  t i m e  t h a t  I  p u t  o u t  q u i t e  a  c o n c e r t e d  e f f o r t  o n  m y  

p a r t  t o  g e t  i t  a l l  z o n e d  N e g r o  e a s t  o f  C e n t e r  S t r e e t  

a n d  n o r h  o f  1 1 t h  C o u r t ,  w h i c h  w o u l d  g i v e  t h e m  a n  

a d d i t i o n a l  35 a c r e s .  I  f e l t  t h a t  t h e y  s h o u l d  h a v e  r o o m .

I n  m y  f i v e  y e a r s  e x p e r i e n c e  w i t h  t h e m  d u r i n g  t h e  

w a r ,  w h e r e  I  c o m m a n d e d  f i v e  t h o u s a n d  o f  t h e m ,  I  

h a d  g o t t e n  t o  t h e  p o i n t  t h a t  I  t r i e d  i n  e v e r y  w a y  n o t  

t o  d i s c r i m i n a t e  a g a i n s t  t h e m .  I n  o t h e r  w o r d s ,  i t  k e p t  

m e  a w a k e  m a n y  n i g h t s  t r y i n g  t o  f i g u r e  o u t  w h a t  

w o u l d  b e  f a i r  t o  e v e r y  o n e  c o n c e r n e d  t h e r e ,  i n  w o r k ­

i n g  t h i s  p r o b l e m  o u t .



192

Q . L e t ’s  s e e  i f  I  u n d e r s t a n d  y o u .  Y o u  s p e a k  o f  35 

a c r e s  n o r t h  o f  1 1 t h — w h a t  i s  i t ?

A .  1 1 t h  C o u r t  N o r t h .
Q .  B e t w e e n  9 t h  A v e n u e  a n d  1 1 t h  C o u r t  N o r t h  a r e  

t h e r e  a n y  v a c a n c i e s  i n  t h e  N e g r o  p r o p e r t y  i n  t h e r e ?

A .  Y e s ,  t h e r e  a r e  v a c a n c i e s  i n  t h e r e ,  q u i t e  a  f e w ,  

e v e n  e a s t  o f  C e n t e r  S t r e e t .  I  w o u l d  s a y  t h e r e  a r e  15 

o r  20  a c r s  i n  t h e r e  t h a t  i s  v a c a n t .
Q .  D i d  y o u r  w o r k  g o  t o  t h e  a d d i t i o n a l  3 5  a c r e s  

a d d e d  t o  t h e  N e g r o  z o n i n g  a r e a  o u t  t h e r e ,  t h e  a r e a  

z o n e d  f o r  r e s i d e n t i a l  p r o p e r t y ?

A .  Y e s .  I  f o u n d  t h i s  c o n d i t i o n  e x i s t e d  w h e n  I  

m o v e d  t h e r e ,  t h a t  t h e r e  w a s  q u i t e  a  l a r g e  a m o u n t  o f  

i l l  w i l l  b e t w e e n  t h e  g r o u p s .  T h e  f r i c t i o n  w a s  a t  a  

p o i n t  t h a t  i t  h a d  g o t t e n  t o  t h e  p l a c e  w h e n  y o u  w o k e  
u p  i n  t h e  n i g h t  a n d  h e a r d  a  n o i s e ,  y o u  m i g h t  f e a r  t h a t  

i t  w a s  a  b o m b i n g  o r  s o m e t h i n g  w a s  h a p p e n i n g .  I t  

w a s  g e t t i n g  d e s p e r a t e ,  a n d  I  w a n t e d  s o m e  s o l u t i o n  

r e a c h e d  t h a t  w o u l d  b e  f a i r  t o  a l l ,  t h a t  w o u l d  l o w e r  t h i s  
t e n s i o n ,  s o  I  w e n t  t o  w o r k ,  c o n s c i e n t i o u s l y ,  a s  I  h a d  

d o n e  i n  t h e  p r e v i o u s  f i v e  y e a r s  i n  m y  A r m y  e x p e r i ­

e n c e  w i t h  t h e m ,  t o  g e t  a  f a i r  s o l u t i o n  t o  t h e  p r o b l e m .

Q .  W h e n  t h i s  35  a c r e s  t h a t  y o u  s p e a k  o f  w a s  z o n e d  

f o r  N e g r o  r e s i d e n t i a l  p u r p o s e s ,  w h a t  w a s  t h e  p e r c e n t ­

a g e  o f  v a c a n c y  i n  t h a t  35  a c r e s ,  a p p r o x i m a t e l y ?  I t  a m  
n o t  a s k i n g  y o u  a b s o l u t e l y  a c c u r a t e ?

A .  I  w o u l d  s a y  t h a t  y o u r  a r e a  n o r t h  o f  1 1 t h  C o u r t  

a n d  w e s t  o f  C e n t e r  S t r e e t ,  t h a t  t h a t  i s  9 8  p e r  c e n t  
v a c a n t .

Q .  98  p e r  c e n t  v a c a n t ?

A .  T h e r e  a r e  o n e  o r  t w o  h o m e s  i n  t h a t  w h o l e  a r e a ,  

a n d  t h e  r e s t  o f  i t  c a n  b e  d e v e l o p e d  i n t o  a  b e a u t i f u l  

r e s i d e n t i a l  a r e a  i f  p u t  t h r o u g h  t h e  s a m e  p r o c e s s  a s  

t h e  r e s t  o f  t h e  a r e a  o u t  t h e r e .



193

Q, N o w ,  I  w i l l  a s k  y o u  t o  t e l l  t h e  C o u r t  w h e t h e r  o r  

n o t  t h e  r a c i a l  t e n s i o n  i s  s t i l l  h i g h  o u t  i n  t h a t  c o m m u n ­

i t y .
A .  I  w o u l d  s a y  a f t e r  t h e  p a s s a g e  o f  t h i s  o r d i n ­

a n c e  a n d  t h e  s e t t l i n g  o f  t h e  s i t u a t i o n ,  s o  f a r  a s  I  a m  

c o n c e r n e d ,  a n d  s o  f a r  a s  m y  a n a l y s i s  o f  t h e  g r o u p s  

t h a t  h a v e  m e t  a t  t h e  C o l l e g e  H i l l s  G r a y m o n t  C i v i c  

A s s o c i a t i o n  i s  c o n c e r n e d ,  t h e  t e n s i o n  d i e d  d o w n  m a ­

t e r i a l l y .  O f  c o u r s e ,  n o w  w i t h  i t  b e i n g  o p e n e d  u p  

a g a i n ,  o f  c o u r s e ,  y o u r  t e n s i o n  i s  g o i n g  u p  a g a i n .

Q. I n  o t h e r  w o r d s ,  i t  w a s  e a s e d  c o n s i d e r a b l y  b y  

t h e  s t e p s  t h a t  w e r e  t a k e n ?

A. Y e s ,  s i r .  I  w a s  c a l l e d  b o t h  b y  w h i t e s  a n d  c o l ­

o r e d ,  s i n c e  I  h a d  t a k e n  t h e  s t a n d  o f  b e i n g  a s  f a i r  a s  

I  c o u l d  b e  i n  e v e r y  r e s p e c t  i n  t h i s  s i t u a t i o n  o n  b o t h  

s i d e s ,  i n  c a l l i n g  m e ,  a n d  y o u  c o u l d  s e e  t h e r e  h a d  b e e n  

s o m e  d e c r e a s e  i n  t h e  t e n s i o n .  I n  o t h e r  w o r d s ,  t h e r e  

w a s n ’t  t h e  w o r r y  b y  e i t h e r  s i d e  t h a t  t h e r e  h a d  b e e n ,  o f  

s o m e  r i o t i n g  o r  o t h e r  s i t u a t i o n s  a r i s i n g .

Q .  H o w  m u c h  d i s o r d e r  h a s  o c c u r r e d  o u t  t h e r e  d u r ­

i n g  t h e  l a s t  y e a r  a n d  a  h a l f  o r  t w o  y e a r s ?

A. M o s t  o f  i t  w a s  c o n c e r n e d  w i t h  t h e  b o m b i n g s  

a n d  o t h e r  a c t i v i t i e s  o v e r  o n  t h a t  f r i n g e ,  w h i c h  I  h a v e  

n o  k n o w l e d g e  o f .  T h e  o n l y  t h i n g  I  k n o w  i s ,  j u s t  l i k e  

e v e r y b o d y  e l s e ,  w h a t  t h e y  r e a d  i n  t h e  p a p e r .  I  d i d n ’t  

e v e n  w a k e  u p  t h e  n i g h t  o f  t h e  b o m b i n g s .

M r .  W i l k i n s o n :

A l l  r i g h t .

M r .  M a r s h a l l :

W e  m o v e  t o  s t r i k e  t h e  a n s w e r .  I t  i s  b a s e d  e n t i r e l y  

o n  h e a r s a y ,  t h r o u g h  t h e  n e w s p a p e r .



194

M r .  W i l k i n s o n ;

I  d o n ’t  i n s i s t .

T h e  C o u r t :

I  w i l l  s t r i k e  i t .

M r .  W i l k i n s o n :

Y o u  m a y  t a k e  t h e  w i t n e s s .

C r o s s  E x a m i n a t i o n .

B y  M r .  M a r s h a l l :

Q .  M r .  H a n s o n ,  i s  i t  t r u e  t h a t  t h e  C o m m i s s i o n  

a d o p t e d  t h e  r e c o m m e n d a t i o n s  o f  y o u r  A s s o c i a t i o n ?

A .  T h e  C o m m i s s i o n  a d o p t e d  a  c o m p r o m i s e  b e ­

t w e e n  o u r  r e c o m m e n d a t i o n s  a n d  t h e  r e c o m m e n d a t i o n  o f  

t h e i r  c o m m i t t e e  w h i c h  w a s  a p p o i n t e d  b y  M r .  M o r g a n .  A c ­
t u a l l y  w e  h a d  c o m p r o m i s e d  q u i t e  f r e e l y  f r o m  t h e  o r i g i n a l  
i s s u e  o n  t h e  C e n t e r  S t r e e t  d i v i s i o n .  O f  c o u r s e ,  a l l  t h e  t i m e  

I  h a d  b e e n  w o r k i n g  t o  g e t  w h a t  I  f i g u r e d  w a s  a  f a i r  s o l u ­
t i o n  t o  t h e  p r o b l e m s  i n  t h a t  a r e a .  I  d o n ’t  t h i n k  t h e y  
a d o p t e d  i t  100 p e r  c e n t .

Q .  Y o u  s p o k e  o f  a  c o m m i t t e e .  Y o u  a r e  s p e a k i n g  
o f  t h e  w h i t e  c o m m i t t e e ?

A .  T h a t  w a s  a p p o i n t e d  b y  M r .  M o r g a n .

Q .  T h a t  i s  t h e  c o m m i t t e e  y o u  a r e  t a l k i n g  a b o u t ?

A .  T h a t  i s  t h e  c o m m i t t e e  t h a t  w e  w o r k e d  w i t h .  
I  u n d e r s t a n d  t h e y  a l s o  m e t  w i t h  y o u r  c o m m i t t e e ,  
c o l o r e d  c o m m i t t e e .

Q .  N o w ,  t o  g e t  i t  c o r r e c t ,  y o u r  c o m m i t t e e  r e p r e ­
s e n t s  t h e  G r a y m o n t  C i v i c  A s s o c i a t i o n ,  a n  a l l  w h i t e  
g r o u p ,  i s  t h a t  c o r r e c t ?

A .  T h e  G r a y m o n t - C o l l e g e  H i l l s  C i v i c  A s s o c i a t i o n ,  
w e  r e p r e s e n t e d  t h e m .

Q .  T h a t  i s  a l l  w h i t e  g r o u p ?



195

A .  T h a t  i s  c o r r e c t .

Q .  A n d  t h e  c o m m i t t e e  y o u  a r e  t a l k i n g  a b o u t ,  a p ­

p o i n t e d  b y  C o m m i s s i o n e r  M o r g a n ,  w a s  a n  a l l  w h i t e  

g r o u p ?

A .  T h a t  w a s  t h e  c o m m i t t e e  s e l e c t e d  b y  t h e  C i t y  

C o m m i s s i o n .

Q .  I t  w a s  a l l  w h i t e ,  w a s n ’t  i t ,  s i r ?

A .  T h e  o n l y  o n e s  I  m e t  w i t h  w e r e  w h i t e .

Q .  A l l  r i g h t ,  s i r .  D i d  y o u  k n o w  t h a t  t h e r e  w a s  a l s o  

a n  a d v i s o r y  c o m m i t t e e  o f  N e g r o e s  i n v o l v e d ?

A .  Y e s ,  I  d i d .  A  m a n  n a m e d  H o l l i s  a t  o n e  o f  o u r  

m a i n  m e e t i n g s ,  a f t e r  w e  d i s c u s s e d  t h e  s i t u a t i o n  i n  

t h e  C i t y  C o m m i s s i o n  m e e t i n g ,  I  g a v e  h i m  m y  h o m e  

p h o n e  a n d  m y  b u s i n e s s  p h o n e ,  a n d  h e  a d v i s e d  m e  t h a t  

h e  w o u l d  c a l l  m e  r e g a r d i n g  t h e  g e t t i n g  t o g e t h e r  o f  

t h e s e  t w o  c o m m i t t e e s ,  s o  t h a t  w e  c o u l d  g o  o v e r  t h i s  

a r e a  a n d  f u l l y  w o r k  o u t  a d  d i s c u s s  t h e  s i t u a t i o n .  B u t  
a f t e r  a  p e r i o d  o f  t i m e  I  w a s  n e v e r  e v e r  c a l l e d ,  a n d  I  

t u r n e d  i t  o v e r  a g a i n  t o  C o m m i s s i o n e r  G r e e n  w h o  w a s  

t h e n  P r e s i d e n t  o f  t h e  C i t y  C o m m i s s i o n .

Q .  T h e n  a s  I  u n d e r s t a n d  i t ,  t h e  f i n a l  s o l u t i o n  w a s  

t h a t  t h e  C o m m i s s i o n  a d o p t e d  a  c o m p r o m i s e  b e t w e e n  

y o u r  g r o u p  a n d  a  g r o u p  a p p o i n t e d  b y  C o m m i s s i o n e r  

M o r g a n ;  t h a t  w a s  t h e  c o m p r o m i s e  y o u  a r e  t a l k i n g  

a b o u t ?
A .  T h e  o n l y  t h i n g  I  k n o w  i s  t h a t  t h e y  m e t — t h i s  i s  

h e a r s a y ,  t h a t  t h e y  m e t  w i t h  y o u r  g r o u p ,  a n d  t h a t  t h e  

s o l u t i o n  p u t  u p  b y  M r .  M o r g a n ’s c o m m i t t e e  w a s  a  s o l u ­
t i o n  o r  c o m p r o m i s e  b e t w e e n  t h e  g r o u p s .  A t  t h e  t i m e  

w e  m e t  i n  t h e  C i t y  C o m m i s s i o n  c h a m b e r s ,  I  b e l i e v e  

i t  w a s  H o l l i s  t h a t  g o t  u p  a n d  d r e w  s o m e  a d d i t i o n a l  

l i n e s  o n  t h e  m a p .  W e  h a d  a l r e a d y  d r a w n  a  l i n e  o n  t h e  

m a p  f r o m  o u r  a n a l y s i s  a s  a  g r o u p  o f  c i t i z e n s  i n  t h a t  

a r e a ,  w e  h a d  w a l k e d  a l l  o v e r  i t ,  a n d  w e  f e l t  t h a t  i t  

w a s  a  f a i r  s o l u t i o n  t o  a l l  c o n c e r n e d .  A n d  h e  d i d  d r a w



196

s o m e  l i n e s  o n  t h e  m a p  w h i c h  w e  f e l t ,  d u e  t o  t h e  l a r g e  

p e r c e n t a g e  o f  w h i t e  r e s i d e n c e s  i n  t h a t  a r e a ,  w a s  n o t  

r e a s o n a b l e .  N o w ,  t h a t  w a s  t h e  s u b s t a n c e  o f  t h a t  

m e e t i n g .

Q .  T h e n  d u r i n g  t h i s  t i m e  t h i s  n e w  o r d i n a n c e  w a s  

p a s s e d ?
A .  I m m e d i a t e l y  a f t e r  t h e  m e e t i n g  I  g o t  w i t h  H o l l i s  

a n d  g a v e  h i m  m y  n a m e  a n d  p h o n e  n u m b e r  a n d  e v e r y ­

t h i n g ,  a n d  h e  w a s  g o i n g  t o  g e t  h i s  c o m m i t t e e  t o g e t h e r  

t o  m e e t  w i t h  m e ,  s o  t h a t  w e  c o u l d  g o  o v e r  a  c o m p r o ­

m i s e  b e t w e e n  t h e s e  c o m m i t t e e s ,  b u t  I  w a s  n e v e r  a b l e  

t o  g e t  t h a t  c o m m i t t e e  t o  m e e t  w i t h  m y  c o m m i t t e e  t o  
d i s c u s s  a n y  s o l u t i o n  o f  t h e  p r o b l e m .

Q .  D i d  y o u  k n o w  t h a t  t h e  H o l l i s  y o u  a r e  s p e a k i n g  

a b o u t  w a s  n o t  e v e n  a  m e m b e r  o f  t h i s  N e g r o  c o m ­

m i t t e e ?

A .  H e  w a s  p r e s e n t  a n d  s p o k e  t h a t  d a y  f o r  t h e m .

Q .  T h a t  w a s  a t  t h e  C o m m i s s i o n  m e e t i n g ?

A .  T h a t  w a s  t h e — t h e y  a s k e d  t h e  o t h e r  g r o u p ,  t h e y  

w e r e  s i t t i n g  t h e r e ,  a n d  t h e y  s a i d  “ H a v e  y o u r  r e p r e ­

s e n t a t i v e s  s p e a k ” , a n d  t w o  o f  t h e m  s p o k e  a t  t h e  m e e t ­
i n g .

Q .  T h e n  t h e  o r d i n a n c e  w a s  p a s s e d ,  7 0 9 F ,  i s  t h a t  
c o r r e c t ?

A .  T h a t  w a s  p a s s e d  q u i t e  a  b i t  l a t e r ,  a f t e r  m u c h  

m o r e  s t u d y  h a d  b e e n  m a d e  o f  t h e  w h o l e  s i t u a t i o n  i n  

t h a t  a r e a ,  n o t  i m m e d i a t e l y  a f t e r  t h a t  m e e t i n g .

Q .  D i d  y o u r  o r g a n i z a t i o n  s p o n s o r  t h a t  o r d i n a n c e ?

A .  W e  d i d n ’t  s p o n s o r  t h e  o r d i n a n c e ,  w e  o n l y  

h a n d e d  i n  a  r e c o m m e n d a t i o n  t o  t h e  C i t y  C o m m i s s i o n  

a s  t o  w h a t  w e  f e l t  t o  b e  f a i r  t o  a l l  c o n c e r n e d  i n  t h a t  

a r e a  w i t h o u t  d i s c r i m i n a t i o n ,  w i t h o u t  a n y  d e v a l u a t i o n  
o f  p r o p e r t y  o n  e i t h e r  s i d e ,  f o r  t h e  s a k e  o f  p e a c e  a n d  

h a r m o n y ,  t o  c u t  d o w n  t h i s  t e n s i o n  t h a t  I  k n e w  e x i s t e d .

Q .  D i d  y o u  a s k  f o r  s u c h  a n  o r d i n a n c e ?



197

A .  W e  a s k e d  t h a t  t h e y  m a k e  s o m e  s o l u t i o n ,  a n d  

g i v e  t h e  N e g r o e s  t h i s  a d d i t i o n a l  a r e a .  T h e y  a l r e a d y  

h a d  a n  o r d i n a n c e ,  a n d  o u r  a r g u m e n t  w a s  t o  g i v e  t h e m  

a n  a d d i t i o n a l  5 5  a c r e s  i n  w h i c h  t o  b u i l d ,  t o  g i v e  t h e m  

r o o m ,  b e c a u s e  w e  r e a l i z e d  t h e y  s h o u l d  h a v e  r o o m  

t o  l i v e  i n ,  a n d  w e  w e r e  t r y i n g  t o  g i v e  t h e m  a d d i t i o n a l  

a c r e a g e .

Q .  I f  I  u n d e r s t a n d  y o u  c o r r e c t l y ,  i n  y o u r  d i r e c t  

e x a m i n a t i o n  y o u  s a i d  a f t e r  t h e  p a s s a g e  o f  t h i s  o r d i n ­

a n c e  t e n s i o n  d i e d  d o w n  o u t  t h e r e .

A .  T h a t  i s  m y  b e l i e f  f r o m  t a l k i n g  t o  a l l  c o n c e r n e d ,  

a n d  I  h a d  b o t h  r a c e s  c a l l  m e ,  a n d  t h e r e  i s  n o  q u e s t i o n  

t h a t  t h e  t e n s i o n  d i e d  d o w n  a f t e r  t h e  s e t t l e m e n t  o f  t h e  

C e n t e r  S t r e e t  l i n e ,  i n  o t h e r  w o r d s ,  a f t e r  t h e  a d d i t i o n a l  

a c r e a g e  w a s  g i v e n  t o  t h e  c o l o r e d  p e o p l e  t o  b u i l d  

h o m e s  o n .  T h e r e  i s  n o  q u e s t i o n  i n  m y  m i n d  t h a t  t h e  

t e n s i o n  d i d  d i e  d o w n  c o n s i d e r a b l y .

Q .  N o w ,  M r .  H a n s o n ,  d o  I  u n d e r s t a n d  t h a t  w h e n  

y o u  d e c i d e d  to l i v e  i n  B i r m i n g h a m  w a s  w h e n  y o u  

c a m e  b a c k  from the war?
A. That is correct.
Q .  A n d  y o u  s h o p p e d  a r o u n d  u n t i l  y o u  g o t  t h e  t y p e  

o f  h o m e  y o u  w a n t e d ?

A .  I w a s  i n t e r e s t e d  i n  l i v i n g  o u t  c l o s e  to t h e  B i r m ­

i n g h a m - S o u t h e r n  C o l l e g e ,  b e c a u s e  I  w a n t e d  t o  s e n d  

my children to a Methodist c o l l e g e ,  a n d  t h a t  w o u l d  

b e  c l o s e  a n d  easy f o r  t h e m  to g e t  t o  c o l l e g e .  T h a t  

w a s  m y  m a i n  i n t e r e s t  i n  p u r c h a s i n g  t h e r e .

Q .  T h a t  i s  t h e  p l a c e  y o u  p i c k e d ,  a n d  t h a t  i s  t h e  

p l a c e  y o u  w a n t  t o  l i v e ?

A. T h a t  was picked, without r e g a r d  to a n y  o t h e r  

c o n s i d e r a t i o n s  i n  B i r m i n g h a m ,  i t  w a s  p i c k e d  o n  the 
b a s i s  t h a t  I  w a s  r a i s e d  i n  W e s t  A l a b a m a ,  a n d  a s  

Judge brought out, all good Methodists i n  Alabama



198

a t t e m p t  t o  m o v e  i n  c l o s e  t o  t h e i r  c o l l e g e  w h e n  t h e y  

c o m e  i n t o  t h i s  a r e a .

M r .  M a r s h a l l :

T h a t  i s  a l l .

R e - D i r e c t  E x a m i n a t i o n .

B y  M r .  W i l k i n s o n :
Q. Is the property i m m e d i a t e l y  e a s t  a n d  w e s t  o f  

C e n t e r  S t r e e t ,  a n d  b y  “ i m m e d i a t e ” , I  m e a n  w i t h i n  

two or three or four blocks a r e a  t h e r e ,  i s  i t  s u b s t a n ­

t i a l l y  t h e  s a m e  t y p e  o f  p r o p e r t y  o n  e a c h  s i d e  o f  t h e  

s t r e e t ?
A .  S u b s t a n t i a l l y  s o ,  r i g h t  i n  t h a t  a r e a .  A  l o t  o f  i t  

i s  v a c a n t  o n  e a c h  s i d e  o f  C e n t e r  S t r e e t .
Q .  B u t  C e n t e r  S t r e e t  b e g i n s  a t  8 t h  A v e n u e ,  d o e s n ’t  

i t ?
A .  I  b e l i e v e  t h a t  C e n t e r  S t r e e t  r u n s  a l l  t h e  w a y  

d o w n  t o  3 r d  A v e n u e .
Q .  A s  i t  g o e s  n o r t h  f r o m  9 t h  A v e n u e ,  i t  i s  u p g r a d e  

t o  s o m e  e x t e n t ,  i s n ’t  i t ?
A .  W e l l ,  i t  g o e s  u p  i n t o  t h e  H i g h l a n d s ,  i t  i s  o n  a  

n i c e  h i l l ,  a  n i c e  r e s i d e n t i a l  a r e a .
Q .  I t  i s  u p g r a d e  o n  b o t h  s i d e s  o f  t h e  s t r e e t  f o r  t w o  

o r  t h r e e  b l o c k s  a n d  w e s t  o f  C e n t e r  S t r e e t ,  i s  i t  n o t ?

A .  A t  l e a s t  t w o  b l o c k s .

Q .  A t  l e a s t  t w o  b l o c k s ?
A .  M o r e  t h a n  t h a t  w e s t  o f  C e n t e r  S t r e e t ,  b u t  e a s t  

o f  C e n t e r  S t r e e t  i t  f l a t t e n s  o u t  a s  i t  g o e s  d o w n  t o w a r d s  

P a r k e r  H i g h  S c h o o l  t h e r e .

Q .  P a r k e r  H i g h  S c h o o l  i s  a  N e g r o  h i g h  s c h o o l ?

A .  Y e s ,  s i r .

Q .  A  l a r g e  N e g r o  h i g h  s c h o o l  h e r e  i n  B i r m i n g h a m ?

A .  Y e s ,  s i r .



199

Q . A b o u t  h o w  f a r  i s  t h a t  f r o m  C e n t e r  S t r e e t ?

A .  I  w o u l d  s a y  t h a t  i t  w a s  f o u r  b l o c k s ,  I  n e v e r  

h a v e  c h e c k e d  i t  a c c u r a t e l y .  I  w o u l d  s a y  t h a t .

Q .  A p p r o x i m a t e l y  t h a t ?

A .  Y e s ,  s i r .

M r .  W i l k i n s o n :

A l l  r i g h t ,  M r .  H a n s o n .  I  t h a n k  y o u ,  s i r .

M r .  M a r s h a l l :

J u s t  o n e  q u e s t i o n ,  M r .  H a n s o n .

R e - C r o s s  E x a m i n a t i o n .

B y  M r .  M a r s h a l l :

Q .  T h i s  3 0  a c r e s  y o u  s u g g e s t e d  b e  t u r n e d  o v e r  t o  

t h e  N e g r o e s ,  i s n ’t  i t  t r u e  t h a t  i s  i n  a  l o w l a n d ,  w i t h  a  

d i t c h  r u n n i n g  t h r o u g h  i t ,  a n d  i t  i s  u n i m p r o v e d ?

A .  T h a t  i s  n o t  l o w l a n d s ,  t h a t  i s  n o t  l o w l a n d s .  I t  

h a s  a  c o n t o u r ,  i t  i s  o n  t h e  b r e a k  o f  t h e  h i l l .  I n  o t h e r  

w o r d s ,  i t  i s  t h e  n o r t h  s i d e  o f  t h e  s a m e  h i l l  t h a t  g o e s  

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

a  c o n t o u r  m a p ,  i t  w o u l d  b e  o f  a  l i t t l e  s t e e p e r  g r a d e ,  

b u t  a b o u t  t h e  s a m e  a s  y o u  g e t  o v e r  i n  t h e  M o u n t a i n  

B r o o k  a r e a  a n d  s o m e  o f  t h e  b e t t e r  r e s i d e n t i a l  d i s ­

t r i c t s .

Q .  H o w  a b o u t  t h e  i m p r o v e m e n t s ?

A .  A s  t o  t h e  i m p r o v e m e n t s ,  t h e r e  b e i n g  n o  h o m e s  

t h e r e ,  t h e r e  a r e  n o  e l e c t r i c  l i g h t s  i n  t h e r e  o t h e r  t h a n  

a r o u n d  t h e  e d g e ,  b u t  i t  c o u l d  b e  i m p r o v e d  a n d  d e v e l ­

o p e d  i n t o  a  b e a u t i f u l  r e s i d e n t i a l  d i s t r i c t .

Q .  H o w  a b o u t  s t r e e t s ?

A .  T h e  s t r e e t s  a r e  a l l  l a i d  o u t .  T h e y  a r e  n o t  

p a v e d .  T h e r e  a r e  s o m e  p a v e d  d o w n  t h r o u g h  t h e r e ,  

b u t  n o t  a l l  o f  t h e m .  T h e y  c o u l d  b e  j o i n e d  t o  o t h e r



200

s t r e e t s .  T a k e  1 1 t h  C o u r t  W e s t  f r o m  C e n t e r  S t r e e t ,  

t h e r e  a r e  o n l y  t w o  b l o c k s  t h a t  l a c k  p a v i n g  t o  t i e  i n  

w i t h  A r k a d e l p h i a  R o a d .  T h e r e  i s  a b o u t  a  b l o c k  o r  

t w o  i n  t h e r e  t o  t i e  i n  w i t h  S e c o n d  a n d  T h i r d  S t r e e t s ,  

a n d  t i e  y o u  i n  t o  t h e  s t r e e t  r u n n i n g  s o u t h .

Q .  D o e s  t h e  r a i l r o a d  r u n  t h r o u g h  i t ?

A .  T h e  r a i l r o a d  d o e s  n o t  r u n  t h r o u g h  i t .  I t  r u n s  

n o r t h  o f  i t .

Q .  H o w  c l o s e  t o  i t ?

A .  T h i s  p r o p e r t y  r u n s  u p  t o  t h e  r a i l r o a d  o n  t h e  

n o r t h .

Q .  I s  t h a t  p r o p e r t y ,  t h e  l a n d ,  o w n e d  b y  w h i t e  o r  

c o l o r e d  p e o p l e ?

A .  I n  t h a t  a r e a ?

Q .  Y e s ,  s i r .

A .  I  c o u l d n ’t  s a y  w h o  o w n s  t h a t  p r o p e r t y .

Q .  I s n ’t  i t  t r u e  t h a t  t h e  a r e a  p r o p o s e d  b y  t h e  N e ­

g r o  g r o u p  w a s  i m p r o v e d ,  a n  a r e a  w i t h  h o m e s  o n  i t ,  

a n d  t h e  l a n d  w a s  m o s t l y  o w n e d  b y  N e g r o e s ?

A .  T h e  a r e a  i n  w h i c h  t h e y  p r o p o s e d ,  t h e  u n d e ­

v e l o p e d  l o t s  i n  t h a t  a r e a  h a d  b e e n  p u r c h a s e d ,  f r o m  

t h e  r e c o r d s  o f  t h e  C i t y  H a l l  t h a t  I  c h e c k e d ,  h a d  b e e n  

p u r c h a s e d  b y  N e g r o e s  i n  t h e  p a s t ,  o h ,  t w e l v e  t o  s i x ­

t e e n  m o n t h s .  I n  o t h e r  w o r d s ,  i t  s e e m e d  t o  b e  a  c o n ­

c e r t e d  e f f o r t  t o  m o v e  a c r o s s ,  a n d  t o  p u t  a  f r o n t  a c r o s s  
a s  q u i c k l y  a s  p o s s i b l e .

Q .  A n d  i t  h a d  s t r e e t s  a n d  i m p r o v e m e n t s ?

A .  I t  h a d  C e n t e r  S t r e e t .  T h i s  p r o p e r t y  w a s  a l o n g  

C e n t e r  S t r e e t .  W h e n  y o u  g e t  t o  F i r s t  S t r e e t  W e s t  y o u  

r u n  i n t o  a  c o n c e n t r a t e d  p o p u l o u s  a r e a  o f  w h i t e s  f r o m  

t h e r e  o n .  T h e r e  a r e  s o l i d  w h i t e s ,  w h o  h a v e  b e e n  t h e r e  

a  l a r g e  n u m b e r s  o f  y e a r s .

M r .  M a r s h a l l :

T h a t  i s  a l l .



201

R e - D i r e c t  E x a m i n a t i o n .

B y  M r .  W i l k i n s o n :
Q .  J u s t  t o  b e  c e r t a i n  I  u n d e r s t a n d  t h i s  d i a g r a m ,  

C e n t e r  S t r e e t  i s  p a v e d ,  i s  i t  n o t ?

A .  Y e s ,  s i r .
Q .  A l l  t h e  w a y  f r o m —
A .  A l l  t h e  w a y  f r o m  8 t h  A v e n u e  c o m p l e t e l y  

t h r o u g h  t o  t h e  B a n k h e a d  H i g h w a y .
Q .  B a n k h e a d  H i g h w a y  i s  n e a r  t h e  r a i l r o a d ,  i s  i t  

n o t ?
A .  Y e s ,  s i r ,  i t  i s  a b o u t  a  b l o c k  a w a y  f r o m  t h e  r a i l ­

r o a d .
Q .  N o w ,  i s  9 t h  A v e n u e  p a v e d ?

A .  9 t h  A v e n u e  i s  n o t  p a v e d .

Q .  I s  5 t h  C o u r t  p a v e d ?

A .  T h a t  i s  p a v e d .

Q .  T h a t  i s  p a v e d ?

A .  Y e s .
Q .  W h a t  a b o u t  1 0 t h  A v e n u e ,  i s  t h a t  p a v e d ?

A .  1 0 t h  i s  p a v e d  a b o u t  a  b l o c k  i n  t h e r e .

Q .  A b o u t  a  b l o c k ?

A .  Y e s .
Q .  1 0 t h  C o u r t ,  i s  t h a t  p a v e d ?
A .  P a v e d  a l l  t h e  w a y  a c r o s s  I  b e l i e v e .  I  a m  n o t  

p o s i t i v e ,  t h e r e  m i g h t  b e  a  v a c a n t  s p a c e  i n  t h e r e .
Q .  Y o u  m e a n  b o t h  e a s t  a n d  w e s t  o f  C e n t e r  S t r e e t  

w h e n  y o u  s a y  “ a l l  t h e  w a y  a c r o s s ” ?
A .  I t  i s  p a v e d  u p  t o  C e n t e r  S t r e e t .  I  w o u l d n ’t  s a y  

e a s t  o f  C e n t e r  S t r e e t .
Q .  1 1 t h  A v e n u e ,  i s  t h a t  p a v e d ?
A .  1 1 t h  A v e n u e  i s  p a v e d  f o r  a b o u t  t w o  b l o c k s  w e s t  

o f  C e n t e r  S t r e e t ,  a n d  i t  i s  n o t  p a v e d  f o r  t h e  r e s t  o f  

t h e  w a y ,  j u s t  t w o  b l o c k s  t h e r e .

Q .  W h a t  i s  n e x t ?



202

A .  1 1 t h  C o u r t .

Q .  1 1 th .  C o u r t .  I s  t h a t  p a v e d ?

A. 1 1 t h  C o u r t  i s  p a v e d  f r o m  t h e  w e s t  u p  t o  w i t h i n  
a b o u t  t w o  b l o c k s  o f  C e n t e r  S t r e e t .

Q .  T h e n  t h e  n e x t  i s  w h a t ?

A .  H i g h w a y  A v e n u e .

Q .  I s  t h a t  p a v e d ?

A .  T h a t  c o m e s  i n t o  t h e  H i g h w a y  a n d  d o e s  n o t  

e x i s t ,  s o  f a r  a s  a c t u a l l y  b e i n g  o n  t h e  g r o u n d  i s  c o n ­

c e r n e d .  T h i s  a r e a  i s  t h e  a r e a  w e  s p o k e  o f  w h i c h  c o u l d  

b e  d e v e l o p e d  i n t o  a  r e s i d e n t i a l  d i s t r i c t .

Q .  B u t  t h e  s t r e e t s ,  a s  a  m a t t e r  o f  f a c t ,  e x i s t  o n  
p a p e r ?

A .  T h i s  s t r e e t  ( i n d i c a t i n g )  e x i s t s  o n  p a p e r .  T h i s  
s t r e e t  ( i n d i c a t i n g )  g o e s  t h r o u g h .

Q .  Y o u  s a y  “ t h i s  o n e  g o e s  t h r o u g h . ”  T h a t  i s  3 r d  
S t r e e t ?

A .  3 r d  S t r e e t  g o e s  t h r o u g h .  4 t h  S t r e e t  a n d  5 t h  
S t r e e t  g o  t h r o u g h .

Q .  G o i n g  n o r t h  f r o m  H i g h w a y  A v e n u e ,  y o u  r e a c h  
1 3 t h  A v e n u e ,  i s  t h a t  c o r r e c t ?

A .  T h a t ’s  r i g h t .  I  d o n ’t  b e l i e v e  1 3 t h  A v e n u e  i s  i n  
t h e r e ,  i n  o t h e r  w o r d s ,  j u s t  o n  p a p e r .

Q .  T h e n  t h e r e  i s  a  h i g h w a y  a n d  a  s h o r t  b l o c k  b e ­
f o r e  y o u  g e t  t o  t h e  r a i l r o a d ?

A .  T h e  s h o r t  b l o c k  I  d o n ’t  b e l i e v e  i s  p a v e d ,  b u t  
t h e  B a n k h e a d  H i g h w a y  i s  p a v e d .

Q .  T h a t  i s  o n e  o f  t h e  m a i n  h i g h w a y s  g o i n g  w e s t ,  
U .  S .  H i g h w a y ?

A .  I t  u s e d  t o  b e  o n e  o f  t h e  m a i n  h i g h w a y s .  T h e y  
s t i l l  t u r n  t r a f f i c  i n  o n  i t  t o  k e e p  i t  o f f  8 t h  A v e n u e .

M r .  W i l k i n s o n :

All r i g h t .  M u c h  o b l i g e d  t o  y o u  M r .  H a n s o n .  M r .  
C o m m i s s i o n e r  C o n n o r .

(Witness excused.)



203

T h e  C o u r t :
J u d g e  W i l k i n s o n ,  w h i l e  I  a m  t h i n k i n g  a b o u t  i t ,  I  w i l l  

s u s t a i n  t h e  o b j e c t i o n  t o  t h e  e x c e r p t s  w h i c h  y o u  h a v e  

o f f e r e d  f r o m  t h e  t r a n s c r i p t  o f  t h e  N e g r o  m a s s  m e e t ­

i n g ,  b e i n g  E x h i b i t  N o .  18.

M r .  W i l k i n s o n :
W e  r e s e r v e  a n  e x c e p t i o n ,  s e p a r a t e l y  a n d  s e v e r a l l y ,  

t o  e a c h  o n e  o f  t h e m .

E U G E N E  C O N N O R ,  c a l l e d  a s  a  w i t n e s s  o n  b e h a l f  

o f  t h e  D e f e n d a n t s ,  b e i n g  f i r s t  d u l y  s w o r n ,  t e s t i f i e d  

a s  f o l l o w s :

D i r e c t  E x a m i n a t i o n .

B y  M r .  W i l k i n s o n :

Q .  I s  t h i s  C o m m i s s i o n e r  C o n n o r ?

A .  Y e s ,  s i r .
Q .  C o m m i s s i o n e r  C o n n o r ,  f o r  t h e  r e c o r d ,  y o u r  

n a m e  i s  E u g e n e  C o n n o r ,  i s  i t  n o t ?

A .  T h a t ’s  r i g h t .
Q .  H o w  l o n g  h a v e  y o u  b e e n  o n e  o f  t h e  C o m m i s ­

s i o n e r s  o f  t h e  C i t y  o f  B i r m i n g h a m ?

A .  O v e r  12 y e a r s .
Q .  W h a t  d e p a r t m e n t  i s  u n d e r  y o u r  i m m e d i a t e  s u p ­

e r v i s i o n  a n d  j u r i s d i c t i o n ?
A .  P u b l i c  S a f e t y ,  P o l i c e ,  F i r e ,  J a i l ,  E d u c a t i o n ,  a n d  

P u b l i c  H e a l t h .
Q .  W h a t  b u s i n e s s  e x p e r i e n c e  a n d  w h a t  p o l i t i c a l  o f ­

f i c e s  h a v e  y o u  h e l d  b e f o r e  y o u  w e r e  o n  t h e  C o m m i s ­

s i o n ?
A .  I  w a s  a  m e m b e r  o f  t h e  L e g i s l a t u r e  f o r  t h r e e  

s e s s i o n s .  I  w a s  a  r a i l r o a d  m a n ,  f a r m e r ,  t r a v e l i n g  

s a l e s m a n  b e f o r e  I  b e c a m e  P o l i c e  C o m m i s s i o n e r .



204

Q . M r .  C o n n o r ,  f o r  t h e  l a s t  12 y e a r s  h a v e  y o u  h a d  

p r e t t y  c l o s e  s u p e r v i s i o n  o f  t h e  P o l i c e  D e p a r t m e n t  o f  
t h e  C i t y  o f  B i r m i n g h a m ?

A .  I t  i s  d i r e c t l y  u n d e r  m e .

Q .  D i r e c t l y  u n d e r  y o u ?

A .  Y e s ,  s i r .

Q .  W h o  i s  t h e  C h i e f  o f  P o l i c e ?

A .  A t  t h e  p r e s e n t  t i m e  C h i e f  F l o y d  E d d i n s .  B e ­
f o r e  h i m ,  T r i o n  R i l e y .

Q .  A r e  y o u  f a m i l i a r  w i t h  t h e  s i t u a t i o n  t h a t  e x i s t s  

a n d  h a s  e x i s t e d  o u t  t h e r e  o n  C e n t e r  S t r e e t ,  j u s t  n o r t h  o f  
9 t h  A v e n u e ,  f o r  t h e  l a s t  y e a r  o r  t w o  y e a r s  o r  w h a t e v e r  

t i m e  i t  h a s  b e e n  g o i n g  o n  t h e r e ,  t h e  c o n t e s t  o v e r  t h e  
i n v a s i o n  o f  w h i t e  t e r r i t o r y ?

A .  Y e s ,  s i r .

Q .  I  w i l l  a s k  y o u  t o  t e l l  t h e  C o u r t ,  h a v e  y o u  b e e n  

i n  c o n f e r e n c e  w i t h  t h e  w h i t e  a n d  c o l o r e d  c i t i z e n s  o v e r  

t h e  s i t u a t i o n  a t  v a r i o u s  t i m e s  d u r i n g  t h e  l a s t  t w o  
y e a r s ?

A .  O n l y  i n  t h e  C i t y  C o m m i s s i o n  m e e t i n g s ,  w i t h  
t h e  e x c e p t i o n  o f  o n e  t i m e  I  w a s  i n  a  c o n f e r e n c e  w i t h  

t h e  c o m m i t t e e  t h a t  w a s  a p p o i n t e d  b y  C o m m i s s i o n e r  
M o r g a n .  I  w a s  i n  o n e  c o n f e r e n c e  w i t h  t h e m .

Q .  H a v e  y o u  b e e n  o v e r  t h e  t e r r i t o r y  i n v o l v e d  o u t  
t h e r e ,  t h a t  i s  t o  s a y  t h e  t e r r i t o r y  f o r  t h r e e  o r  f o u r  
b l o c k s  b o t h  e a s t  a n d  w e s t  o f  C e n t e r  S t r e e t ?

A .  Y e s ,  s i r .

Q .  W h a t  i s  t h e  t y p e  o f  t e r r i t o r y  f r o m  8 t h  A v e n u e  
n o r t h  o n  b o t h  s i d e s  o f  C e n t e r  S t r e e t ,  f o r  t w o  o r  t h r e e  

b l o c k s  e a s t  a n d  w e s t ,  g e n e r a l  d e s c r i p t i o n  o f  i t ?

A .  O n  t h e  e a s t  s i d e  o f  C e n t e r  S t r e e t  i t  i s  a l l  N e g r o  

r e s i d e n c e s ,  a n d  o n  t h e  w e s t  s i d e ,  f r o m  8 t h  A v e n u e ,  

w i t h  t h e  e x c e p t i o n  o f  a  f e w  h o u s e s  f r o m  a b o u t  8 t h  

t o  9 t h ,  I  w o u l d  s a y ,  o r  m a y b e  u p  t o  1 0 t h ,  t h e r e  a r e  a



205

f e w  N e g r o  h o u s e s ,  b u t  f r o m  t h e r e  o n  t o  S o u t h e r n  
C o l l e g e ,  i t  i s  w h i t e  r e s i d e n c e s .

Q .  I s  i t  t h e  s a m e  g e n e r a l  t y p e  o f  p r o p e r t y ,  i s  t h e r e  

a n y  s u b s t a n t i a l  d i f f e r e n c e  b e t w e e n  t h e  n a t u r e  o f  t h e  

t e r r a i n  o n  t h e  e a s t  o f  C e n t e r  S t r e e t  a n d  t h e  n a t u r e  o f  
t h e  t e r r a i n  o n  t h e  w e s t  s i d e ?

A .  N o t  m u c h ,  I  w o u l d  t h i n k .  I t  i s  p r a c t i c a l l y  t h e  
s a m e .

Q .  H a s  t h e  C o m m i s s i o n  o f  B i r m i n g h a m ,  t h e  m e m ­

b e r s  o f  t h e  C o m m i s s i o n ,  h a d  f r e q u e n t  c o n f e r e n c e s  
o v e r  t h i s  s i t u a t i o n  o u t  t h e r e ?

A .  Y e s ,  s i r .

Q .  W a s  t h e  z o n i n g  l a w  i n  e f f e c t  w h e n  y o u  c a m e  o n
t h e  C i t y  C o m m i s s i o n ?

A .  Y e s ,  s i r .

Q .  W h a t  h a s  b e e n  y o u r  e x p e r i e n c e  a s  h e a d  o f  t h e  

l a w  e n f o r c e m e n t  d e p a r t m e n t  o f  t h e  C i t y  w i t h  t h e  z o n ­

i n g  l a w s  s i n c e  y o u  h a v e  b e e n  i n  o f f i c e ,  h a s  i t  b e e n  

g e n e r a l l y  a n d  u n i v e r s a l l y  o b s e r v e d  b y  b o t h  r a c e s ,  s o  

f a r  a s  t h e  r e s i d e n t i a l  a r e a s  a r e  c o n c e r n e d ,  u p  u n t i l  
t h e  t i m e  t h i s  c o n t e s t  d e v e l o p e d ?

A. Yes, sir.
Q .  I  w i l l  a s k  y o u  i f  i n  y o u r  e x p e r i e n c e  a s  h e a d  o f  

t h e  p o l i c e  d e p a r t m e n t ,  i f  t h e  z o n i n g  l a w  h a s  a s  a  

m a t t e r  o f  f a c t  p r o m o t e d  t h e  c o m f o r t  a n d  c o n v e n i e n c e  
o f  t h e  w h i t e  a n d  c o l o r e d  c i t i z e n s  a l i k e ?

M r .  M a r s h a l l :

I f  Y o u r  H o n o r  p l e a s e ,  w e  o b j e c t  t o  w h e t h e r  o r  n o t  

t h e  o r d i n a n c e  h a s  g i v e n  c o m f o r t  a n d  c o n v e n i e n c e  t o  
t h e  c i t i z e n s .  I t  i s  i m m a t e r i a l .

T h e  C o u r t :

I  s u s t a i n  t h e  o b j e c t i o n .



206

M r .  Wilkinson:
W e  r e s e r v e  a n  e x c e p t i o n ,  a n d  o f f e r  t o  s h o w  t h a t  i t  

h a s .

Q .  M r .  C o n n o r ,  I  w i l l  a s k  y o u  a s  a n  e x p e r i e n c e d  

l e g i s l a t o r  a n d  a s  a n  e x p e r i e n c e d  m e m b e r  o f  t h e  C i t y  

C o m m i s s i o n ,  w h e t h e r  o r  n o t  y o u  k n o w  o f  a n y  b e t t e r  

w a y  o f  t h e  C i t y  o f  B i r m i n g h a m  p r o t e c t i n g  i t s  c i t i z e n s  

a g a i n s t  t h e  c o n s e q u e n c e s  a r i s i n g  f r o m  t h e  f e e l i n g  o f  

r a c e  h o s t i l i t y  t h a n  t h e  p r e s e n t  z o n i n g  o r d i n a n c e  o f  t h e  

C i t y  o f  B i r m i n g h a m ?

M r .  M a r s h a l l :
Objection, i f  Y o u r  H o n o r  p l e a s e .

T h e  C o u r t :

I s u s t a i n  t h e  objection.

M r .  W i l k i n s o n :

W e  r e s e r v e  a n  e x c e p t i o n  a n d  o f f e r  t o  s h o w  t h a t  h e  

d o e s  n o t  k n o w  o f  a n y  b e t t e r  w a y .

Q. I will ask you i f  the C i t y  C o m m i s s i o n  o f  B i r m ­

i n g h a m  k n o w s  o f  a n y  b e t t e r  w a y  t o  p r o t e c t  t h e  c i t i ­

z e n s  o f  t h i s  C i t y  a g a i n s t  t h e  c o n s e q u e n c e s  a r i s i n g  

f r o m  t h e  f e e l i n g  o f  r a c e  h o s t i l i t y  t h a t  h a s  b e e n  d e ­

t a i l e d  h e r e  t h a n  t h e  p r e s e n t  z o n i n g  o r d i n a n c e  o f  t h e  
C i t y  o f  B i r m i n g h a m ?

Mr. Marshall:
O b j e c t i o n ,  s i r .

T h e  C o u r t :

I  s u s t a i n  t h e  o b j e c t i o n .



M r .  W i l k i n s o n :  

W e  e x c e p t .

2 0 7

Q .  I  w i l l  a s k  y o u  t o  s t a t e  w h e t h e r  o r  n o t  t h e  p r e ­

s e n t  z o n i n g  o r d i n a n c e  o f  t h e  C i t y  o f  B i r m i n g h a m  r e ­

p r e s e n t s  t h e  b e s t  j u d g m e n t  o f  t h e  C o m m i s s i o n  o f  t h e  

C i t y  o f  B i r m i n g h a m  w i t h  r e s p e c t  t o  m i n i m i z i n g  f r i c ­

t i o n  i n  t h i s  C i t y  a r i s i n g  f r o m  t h e  f e e l i n g  o f  r a c e  h o s ­

tility?

M r .  M a r s h a l l :

We object.

T h e  C o u r t :
I  s u s t a i n  t h e  o b j e c t i o n .

M r .  W i l k i n s o n :
W e  r e s e r v e  a n  e x c e p t i o n  a n d  o f f e r  t o  s h o w  t h a t  i t  

d o e s  r e p r e s e n t  t h a t .

Q .  W h a t  i s  t h e  t y p e  o f  i m p r o v e m e n t  t h a t  h a s  b e e n  

c o n s t r u c t e d  i n  t h e  G r a y m o n t - C o l l e g e  H i l l s  s e c t i o n  

w e s t  o f  C e n t e r  S t r e e t  a n d  b e t w e e n  9 t h  a n d  1 1 t h  A v e ­

n u e ,  t h a t  t h r e e  b l o c k  s e c t i o n  t h e r e ?
A .  J u d g e ,  I  w o u l d  s a y  t h a t  t h e — n o t  b e i n g  a  c o n ­

t r a c t o r  o r  b u i l d e r ,  I  w o u l d  s a y  t h e y  a r e  o f  a  h i g h e r  

t y p e  h o m e  w e s t  o f  2 0 t h  S t r e e t .
O .  Y o u  m e a n  w e s t  o f  C e n t e r  S t r e e t ?
A. Was of Center Street I mean, going west to­

w a r d s  S o u t h e r n  C o l l e g e ,  i t  i s  a  n i c e  r e s i d e n t i a l  sec­
t i o n  w h e r e  I  w o u l d  s a y  t h a t  m o s t  a n y b o d y  w o u l d  w a n t  

t o  l i v e ,  m o s t  a n y  w h i t e  m a n  w o u l d  w a n t  t o  l i v e .
Q. What is the type of Negro property east o f  Cen­

t e r  S t r e e t ,  b e t w e e n  t h e r e  a n d  t h e  P a r k e r  H i g h  S c h o o l ,  

some three o r  f o u r  b l o c k s  t h e r e ?



2 0 8

A .  W i t h  t h e  e x c e p t i o n  o f  o n e  o r  t w o  h o m e s  t h e r e ,  

i t  i s  w a y  b e l o w  t h e  t y p e  o f  h o m e  w e s t  o f  C e n t e r  S t r e e t .
Q .  N o w ,  h o w  l o n g  h a v e  y o u  l i v e d  i n  B i r m i n g h a m ?

A .  P r a c t i c a l l y  52  y e a r s .
Q. Have you been f a m i l i a r  w i t h  t h i s  G r a y m o n t -  

C o l l e g e  H i l l s  t e r r i t o r y  s i n c e  1 9 2 6 ?
A. Yes, sir, I have lived o u t  in t h a t  s e c t i o n  u p  

u n t i l  a  y e a r  a g o .
Q .  T e l l  t h e  C o u r t  w h e t h e r  o r  n o t  m a n y  o f  t h e  w h i t e  

h o m e s  a n d  m a n y  o f  t h e  c o l o r e d  h o m e s  i n  t h e  t w o  

a r e a s ,  t h a t  i s  w h i t e  h o m e s  i n  t h e  w h i t e  a r e a  a n d  c o l ­

o r e d  h o m e s  i n  t h e  c o l o r e d  a r e a  h a v e  b e e n  c o n s t r u c t e d  

s i n c e  1 9 2 6 ,  w h e n  t h e  z o n i n g  l a w  o f  B i r m i n g h a m  w e n t  

i n t o  e f f e c t ,  w h a t  t h e  d e v e l o p m e n t  h a s  b e e n  i n  t h a t  

t e r r i t o r y .
A .  I  w o u l d  s a y  i t  h a s  b e e n  p r a c t i c a l l y  7 5  p e r  c e n t  

w e s t ,  m o r e  h o m e s  b e i n g  b u i l t  t h e r e  i n  t h e  s e c t i o n  

t h e r e  s i n c e  1 9 2 6 ,  75  p e r  c e n t  o f  t h e  h o m e s  w e s t  o f  C e n ­

t e r  S t r e e t .
Q .  I n  o t h e r  w o r d s ,  t h e  d e v e l o p m e n t  a n d  i m p r o v e ­

m e n t  h a s  b e e n  m a d e  t h e r e —

A .  S i n c e  ’26 .
Q .  T h a t  i s  a b o u t  7 5  p e r  c e n t ?

A .  Y e s ,  s i r .
Q .  W h a t  a b o u t  t h e  N e g r o  h o m e s  e a s t  o f  C e n t e r  

S t r e e t  s i n c e  1 9 2 6 ?
A .  T h a t  i s  a b o u t  t h e  s a m e  t h i n g  s i n c e  ’26 .  O f  

c o u r s e ,  t h e y  h a d  t o  t e a r  d o w n  a  l o t  o f  t h e m ,  y o u  w i l l  

r e m e m b e r ,  f o r  t h e  h o u s i n g  p r o j e c t  t h a t  w a s  b u i l t  

t h e r e .
Q .  B u t  t h e  i m p r o v e m e n t  i n  e a c h  i n s t a n c e  i s  a b o u t  

7 5  p e r  c e n t  o f  t h e  p r e s e n t  i m p r o v e m e n t ?

A .  Y e s ,  s i r ,  j u s t  o f f  h a n d  I  w o u l d  s a y  t h a t .



209

M r .  W i l k i n s o n .
Y o u  m a y  t a k e  t h e  w i t n e s s .

M r .  M a r s h a l l :
J u d g e ,  c o u l d  w e  h a v e  a  c o u p l e  o f  m i n u t e s  f o r  c o n ­

f e r e n c e ,  i f  Y o u r  H o n o r  p l e a s e ?

T h e  C o u r t :
W e  w i l l  t a k e  a  t e n  m i n u t e  r e c e s s .

( A  r e c e s s  w a s  h a d . )

M r .  W i l k i n s o n :
I  w a n t e d  t o  a s k  o n e  m o r e  q u e s t i o n .  T h e y  m i g h t  

w a n t  t o  c r o s s  e x a m i n e  h i m  o n  i t .

Q .  M r .  C o n n o r ,  I  w i l l  a s k  y o u  w h e t h e r  o r  n o t  t h e  

C i t y  o f  B i r m i n g h a m  h a s  a  a d e q u a t e  p o l i c e  f o r c e  a t  

t h e  p r e s e n t  t i m e ,  a n d  w h e t h e r  t h e  p o l i c e  f o r c e  h a s  

b e e n  a d e q u a t e  i n  n u m b e r s  f o r  s o m e  p e r i o d  o f  t i m e  i n  

t h e  p a s t ?

M r .  M a r s h a l l '

W e  o b j e c t .

T h e  C o u r t :
I  o v e r r u l e d  t h e  o b j e c t i o n .

A .  W e  d o  n o t  h a v e  a n  a d e q u a t e  p o l i c e  d e p a r t m e n t  

t o  p o l i c e  t h e  C i t y  o f  B i r m i n g h a m ,  a n d  w e  h a v e  n o t  

h a d  s i n c e  I  h a v e  b e e n  P o l i c e  C o m m i s s i o n e r  a n  a d e ­

q u a t e  p o l i c e  d e p a r t m e n t  t o  p o l i c e  t h e  C i t y  o f  B i r m ­

i n g h a m  a c c o r d i n g  t o  w h a t  a l l  e x p e r t s  c l a i m  t h a t  y o u  

s h o u l d  h a v e  f o r  a  t o w n  o f  t h i s  s i z e ,  t h a t  i s  i n  a r e a  a n d  

p o p u l a t i o n .



210

Q . I s  t h e r e  a n y  m o n e y  a v a i l a b l e  o r  h a s  t h e r e  b e e n  

a n y  m o n e y  a v a i l a b l e  i n  t h e  C i t y  T r e a s u r y  f o r  p o l i c e  

p u r p o s e s  t h a t  h a s  n o t  b e e n  u s e d  o r  u t i l i z e d ?

A .  N o ,  s i r ,  t h e r e  i s  n o  m o n e y ,  o n l y  w h a t  w e  a r e  

g e t t i n g .  I  a s k e d  f o r  f i f t y  p o l i c e  i n  t h i s  b u d g e t  t h e  p a s t  

S e p t e m b e r  a n d  w a s  t u r n e d  d o w n  f o r  t h e  s i m p l e  r e a s o n  

w e  d i d  n o t  h a v e  t h e  m o n e y .  T h a t  m e a n s  f i f t y  e x t r a  

p o l i c e .
Q .  Y o u  m e a n  f i f t y  a d d i t i o n a l  p o l i c e ?

A .  Y e s ,  s i r ,  i n  a d d i t i o n  t o  w h a t  I  h a v e ,  f i f t y  a d d i ­

t i o n a l .

M r .  W i l k i n s o n :

A l l  r i g h t ,  y o u  m a y  t a k e  t h e  w i t n e s s .

M r .  M a r s h a l l :

N o  q u e s t i o n s ,  i f  Y o u r  H o n o r  p l e a s e .

T h e  C o u r t :

A l l  r i g h t ,  c o m e  d o w n ,  M r .  C o n n o r .

( W i t n e s s  e x c u s e d . )

M r .  W i l k i n s o n :

C h i e f  E d d i n s ,  I  w i l l  e x a m i n e  y o u .

C .  F L O Y D  E D D I N S ,  c a l l e d  a s  a  w i t n e s s  o n  b e h a l f  

o f  t h e  D e f e n d a n t s ,  b e i n g  f i r s t  d u l y  s w o r n ,  t e s t i f i e d  a s  
f o l l o w s :

D i r e c t  E x a m i n a t i o n .

B y  M r .  W i l k i n s o n :

Q .  W i l l  y o u  s t a t e  y o u r  n a m e  f o r  t h e  r e c o r d ?
A .  C .  F .  E d d i n s .



211

Q .  A r e  y o u  C h i e f  o f  P o l i c e  o f  t h e  C i t y  o f  B i r m i n g ­

h a m ?

A .  Y e s ,  s i r .
Q .  H o w  l o n g  h a v e  y o u  b e e n  c o n n e c t e d  w i t h  t h e  

p o l i c e  d e p a r t m e n t  o f  t h e  C i t y  o f  B i r m i n g h a m ?

A .  S i n c e  N o v e m b e r  1 , 1 9 1 9 .
Q ,  H a s  t h a t  b e e n  c o n t i n u o u s ?

A .  Y e s ,  s i r .
Q .  I n  w h a t  c a p a c i t i e s  h a v e  y o u  s e r v e d  i n  t h a t  d e ­

p a r t m e n t ?
A .  I  s e r v e d  a s  P a t r o l m a n ,  S e r g e a n t ,  C a p t a i n ,  A s ­

s i s t a n t  C h i e f ,  a n d  C h i e f .

Q .  H o w  l o n g  h a v e  y o u  b e e n  C h i e f ?

A .  A p p r o x i m a t e l y  7 y e a r s .

Q .  W h a t ?

A .  7  y e a r s .

Q .  F o r  7 y e a r s ?

A .  Y e s .
Q .  H a v e  y o u  p r e p a r e d  a  s c h e d u l e  s h o w i n g  t h e  

n u m b e r  o f  p o l i c e  i n  t h e  p o l i c e  d e p a r t m e n t s  i n  t h e  v a r i ­
o u s  c i t i e s  i n  B i r m i n g h a m ’s  c l a s s ,  a n d  t h e  p o l i c e  b u d ­

g e t  i n  v a r i o u s  c i t i e s  i n  B i r m i n g h a m ’s  c l a s s ?

A .  I  h a v e .
Q .  D o  y o u  h a v e  t h a t  w i t h  y o u ?

A .  Y e s ,  s i r .

Q .  M a y  I  h a v e  i t ?

A .  Y e s ,  s i r .

Q .  I s  t h i s  d o c u m e n t  t h a t  y o u  h a n d  m e  t r u e  a n d  c o r ­

r e c t ,  a  t r u e  a n d  c o r r e c t  l i s t  o f  t h e  c i t i e s  i n  B i r m i n g ­

h a m ’s  c l a s s ,  s h o w i n g  t h e  n u m b e r  o f  p o l i c e  a n d  t h e  

n u m b e r  o f  s q u a r e  m i l e s  p a t r o l l e d ,  a n d  t h e  y e a r l y  

b u d g e t  f o r  p o l i c e  d e p a r t m e n t  e x p e n d i t u r e s ?

A .  I t  i s ,  a c c o r d i n g  t o  l e t t e r s  t h a t  I  r e c e i v e d  f r o m  

C h i e f s  o f  P o l i c e  f r o m  t h o s e  p a r t i c u l a r  c i t i e s  i n v o l v e d .



212

Q . W h e n  w a s  t h i s  c o m p i l e d ?

A .  L a s t  w e e k .
Q .  S o  t h a t  i t  i s  b a s e d  o n  c u r r e n t  i n f o r m a t i o n ?
A .  Y e s ,  s i r ,  f o r  t h e  y e a r  1949 .

M r .  W i l k i n s o n :
W e  o f f e r  i t  i n  e v i d e n c e  a s  E x h i b i t  N o .  19 .

( D e f e n d a n t s ’ E x h i b i t  N o .  19 w a s  m a r k e d  f o r  i d e n ­
t i f i c a t i o n . )

M r .  M a r s h a l l :

W e  o b j e c t  o n  t h e  g r o u n d  i t  i s  i m m a t e r i a l  t o  t h e  
i s s u e  i n  t h i s  c a s e ,  t h e  r e l a t i o n s h i p  o f  t h e  B i r m i n g h a m  

P o l i c e  t o  c i t i e s  o f  t h e  s a m e  s i z e .  I  c a n ’t  s e e  t h e  b e a r ­

i n g  o n  t h e  i s s u e  i n  t h i s  c a s e .

T h e  C o u r t :

I  d o n ’t  t h i n k  i t  h a s  a n y  b e a r i n g  o n  t h e  i s s u e s .  
I  w i l l  l e t  i t  i n  t h o u g h .

M r .  M a r s h a l l :

V e r y  w e l l ,  s i r .

( S a i d  E x h i b i t  19 i s  a s  f o l l o w s : )

City

No. of 
Police Exc.

Square
Miles Yearly

Civilians Patrolled Budget
A t l a n t a ,  G e o r g i a 4 6 4 3 4 $ 1 ,8 2 3 ,1 2 5 .1 2
C i n c i n n a t i ,  O h i o  . 749 7 3 .3 2 ,9 0 4 ,0 0 0 .0 0
C o l u m b u s ,  O h i o  . 3 7 3 4 0 .5 1 ,4 7 1 ,5 0 0 .0 0
D a l l a s ,  T e x a s  . . . . 4 4 8 105 1 ,9 5 6 ,3 4 8 .0 0
D e n v e r ,  C o l o r a d o 5 2 5 6 6 .4 2 ,1 7 3 ,1 6 9 .0 0
I n d i a n a p o l i s ,  I n d . 653 55 2 ,5 2 4 ,4 6 8 .8 1



213

City

No. of 
Police Exc.
Civilians

Square
Miles

Patrolled
Yearly
Budget

Kansas City, Mo........ 607 62.48 2,461,602.14
Louisville, Ky............. 497 41.479 1,814,637.00
Memphis, Tennessee . 209 97.41 1,292,489.00
Minneapolis, Minn. . . 586 58.5 2,369,459.00
Newark, New Jersey 1259 23 5,292,911.85
Oakland, Calif............ 656 62.4 3,326,156.00
Portland, Oregon . .. 590 66.86 2,572,735.73
Providence, R. I......... 439 18.91 1,726,219.04
Rochester, N. Y.......... 435 33 1,644,025.00
Seattle, Washington . . 608 71.8 2,824.369.00
Toledo, Ohio ............ 362 41.6 1,434,242.00
Birmingham, Ala........ 333 51.91 1,179,960.00

Totals ....................... 9511 1007.64 45,050,055.69
Average of Cities An­

swering Question­
naire .................. 528.38 55.98 2,502,780.88

(Four Cities in our population group did not answer 
questionnaire, and one City included police and fire 
department combined and could not be used.)

Q. Chief, have you been in close touch with the con­
troversy growing out of the Center Street disagree­
ment between the whites and colored out there, that 
is the white and colored people out there?

A. I have.
Q. I wish you would tell the Court whether or not 

racial tension has been high and is still high in Birm- 
ham, particularly in that part of Birmingham known 
as the Graymont-College Hills area?

A. It has been running high.
Q. How many bombings have occurred out there in 

the last two years?



214

Mr. Marshall:
We object to any question about the number of 

bombings out in this area. The question is as to this 
Plaintiff and the people she represents.

The Court:
I sustain the objection.

Mr. Wilkinson:
We except. Does Your Honor hold we cannot show 

the number of law violations in that area in the last 
two years, since this controversy arose?

The Court:
I will let you offer to show it.

Mr. Wilkinson:
Sir?

The Court:
I will let you state it.

Mr. Wilkinson:
I want to offer it. I want to show the different forms 

of disorder, bombings and other disorders, other forms of 
it.

The Court:
I will let you offer to show it. I don’t think it is 

material.

Mr. Wilkinson:
Yes, sir, we make that offer now by this witness.



215

The Court:
All right.

Mr. Wilkinson:
We except.

Q. During the time you have been connected with 
the police department of the City of Birmingham I 
will ask you if the zoning law was adopted by the City of 
Birmingham in 1926, together with such ordinances as 
have been adopted from time to time since that time 
have been generally and universally observed by the 
white and colored population in Birmingham up until 
the time these differences arose?

A. It has, up until 1947.
Q. Up until 1947?
A. Yes, sir.

Mr. Wilkinson:
You may take the witness.

Mr. Marshall:
No questions.

The Court:
All right, come down.

(Witness excused.)

Mr. Wilkinson:
I want to ask Commissioner Connor one more ques­

tion.



216

EUGENE CONNOR, recalled as a witness on behalf 
of the Defendants, having been previously sworn, 
testified further as follows:

Direct Examination.

By Mr. Wilkinson:
Q. Was there any appeal taken by Mary Monk to 

the City Commission or has the City Commission 
ever considered any appeal by her from the ruling 
that Mr. Hagood made denying the permit?

Mr. Marshall:
I object as being irrelevant to this case, as to the 

procedure she followed in any state proceeding. The 
questions as I understand it is the violation, or the 
alleged violation of Federal statutes, specifically Sec­
tions 42 and 43.

The Court:
You are talking about the appeal from the state 

Court decisions?

Mr. Wilkinson:
No, sir, I am. talking about the appeal from Mr. Ha­

good, the administrative officer, to the City Com­
mission of Birmingham, or to the Zoning Board of 
Birmingham.

The Court:
I overrule the objection.

Mr. Marshall:
Very well, sir.



217

Q. Has there any appeal of that kind been prose­
cuted at all?

A. No, sir.

Mr. Wilkinson:
All right. That is all.

(Witness excused.)

Mr. Wilkinson:
I would like to offer in evidence, if Your Honor 

please, the entire zoning law of Birmingham. I think 
there are a number of sections of it that are set out 
in the complaint, or made an exhibit to the complaint. 
But the zoning provisions are in the General City Code 
of Birmingham for 1944, known as Chapter 57.

The Court:
That is in the Zoning Chapter, is it?

Mr. Wilkinson:
Yes, sir, it is the Zoning Chapter, the entire Chap­

ter on zoning.

The Court:
I think the Court takes judicial knowledge of that, 

but I will admit it in evidence, so there won’t be any 
question about it.

Mr. Wilkinson:
I don’t know whether the Federal Court follows the 

state rules or not. The state statute requires the state 
Court to take judicial notice of it.



218

The Court:
They are in evidence, any way.

Mr. Wilkinson:
Yes, sir.

I don’t believe that this record shows the length 
of time that each of these Plaintiffs have been in 
Birmingham. It shows the length of time that Mary 
Monk has been here, but I don’t believe that question 
was asked of any of the other Plaintiffs. I would like 
to get the length of time that they have lived in Birm­
ingham here, if the Court will just have them stand 
and give their names.

The Court:
All right. Maybe you can stipulate it.

Mr. Wilkinson:
We might do it. We have no information on that 

subject.

Mr. Shores:
I don’t know. I will have to find out from each one of 

them how long they have lived in Birmingham.

The Court:
Do you want to call one of them around?

Mr. Wilkinson:
Probably it would be shorter if they would stand up 

and state how long they rave been in Birmingham.



219

The Court:
All right, let each one of the Plaintiffs in this case 

stand up and give your name and how long you have 
been a resident of the City of Birmingham.

Ulysses Teery:
I have been here 28 years.

Emily Madison:
Since 1923.

H. L. Lemon:
21 years.

P. L. Evans:
33 years.

A. F. Jackson:
25 years.

Louis Drake:
I have been here ever since 1929.

Jobie Herbert:
Ever since 1929.

Mr. Shores:
H. W. McElrath, 40 years.

The Court:
All right. Are there any others?

Mr. Shores:
That is all.



220

Mr. Wilkinson:
We offer in evidence a certified copy of the record 

in the case of Mary Means Monk, Petitioner, against 
James W. Morgan, a member of the City Commission 
of Birmingham, Alabama, H. E. Hagood, Chief Build­
ing Inspector of the City of Birmingham, Alabama, 
Respondents, No. 19712 X, in the Circuit Court, Tenth 
Judicial Circuit of Alabama, certified by the Clerk of 
the Circuit Court, and by the Honorable C. B. Smith, 
one of the judges of said Court, under the Acts of Con­
gress.

The Court:
What was that case?

Mr. Wilkinson:
That was a mandamus proceeding as I understand 

it from the record, by Mary Monk against the Build­
ing Inspector, and the record shows that the case 
was dismissed without prejudice.

The Court:
What is the exhibit number?

The Clerk:
Defendants’ Exhibit 20.

(Defendants’ Exhibit No. 20 was marked for iden­
tification.)

Mr. Marshall:
We object to the admission of the record of the pro­

ceedings in the state Court which was dismissed with­
out prejudice, never went to trial. It has certainly no 
bearing on this case, which is for the alleged viola-



221

tions of a Federal right, specifically, Sections 42 and 
43, and the 14th Amendment.

Mr. Wilkinson:
I wanted to show the circumstances under which it 

was dismissed by a witness.

Mr. Marshall:
It was dismissed without prejudice.

The Court:
I will sustain the objection.

Mr. Wilkinson:
We except.

(Said Defendants’ Exhibit No. 20 is as follows:) 

Filed December 13, 1949, Chas. B. Crow, Clerk.



222

PETITION FOR MANDAMUS.

In The Circuit Court Of The Tenth Judicial 
Circuit of Alabama.

State Of Alabama,
Jefferson County,

Mary Means Monk, Petitioner.
Vs. 19712X.

James W. Morgan, as Member of the City Commission 
of the City of Birmingham, Alabama and H. E. 
Hagood, Chief Building Inspector of the City of 
Birmingham, Alabama, Respondents.

To The Honorable Judges Of The Circuit Court For 
The Tenth Judicial Circuit Of Alabama:

Now comes your petitioner and respectfully shows 
unto this Honorable Court the following facts:

1. That petitioner is a resident of Jefferson County, 
Alabama over the age of twenty-one.

2. That respondent, Jam es W. Morgan, is a mem­
ber of the City Commission of Birmhingham, Alabama 
and is designated as Commissioner of Public Improve­
ment; respondent, H. E. Hagood, is chief building 
Inspector for the City of Birmingham, Alabama.

3. That petitioner is the owner of the following 
described real property, to-wit:

The North 42 feet of the south 107y2 feet of lots one, 
two and three (1, 2, & 3) in Block 37, together with



223

the South 42% feet of the North 92% feet of Lots One 
(1) and Two (2) in block 37, according to Dr. Joseph
R. Smith’s addition to Birmingham, called Smithfield, 
North, as recorded in Map Book 1, page 149 in the 
office of the Judge of Probate of Jefferson County. 
Alabama.

4. That petitioner had plans and specifications 
drawn to build a house on the above described prop­
erty, all in conformity with the City Building Code of 
Birmingham, Alabama; that said plans and specifi­
cations, along with an application for a permit to 
build, were submitted to the respondent, H. E. Ha- 
good, in his official capacity, which plans, specifica­
tions and applications were approved by respondent, 
H. E. Hagood.

5. That although the said respondent, H. E. Ha­
good, whose duty it is to issue a building permit on 
approval of plans, specification and application to 
build; and not withstanding his approval of petitioner’s 
application, he refused to issue said permit, stating 
that he would have to get the approval of his superior 
officer, respondent, Jam es W. Morgan.

6. That respondent, H. E. Hagood, stated to peti­
tioner that it would be perfectly agreeable to begin 
building, as he was sure that he would issue the 
permit within a few days on return of his Superior, 
who was then out of town.

7. That relying upon the representations of respon­
dent, your petitioner employed a Building Contractor 
and signed a contract to erect said residence for peti­
tioner, expended large sums of money; that said con-



224

tractor has purchased building material, began exca­
vations for the foundation, as well as expended other 
sums pursuant to his contract with petitioner.

8. That on the return of the respondent, Commis­
sioner Morgan, petitioner again requested the issuance 
of a permit to build, from both respondents, Morgan 
and Hagood; that although your petitioner has com­
plied with all of the rules and regulations of the 
City of Birmingham and stand ready and willing to 
pay the necessary fees for said permit, respondents 
have refused and still refuse to issue said permit.

Wherefore, The Premises Considered; Your relator 
prays this Honorable Court that an alternative writ 
of mandamus be issued to the Respondents, Jam es W. 
Morgan and H. E. Hagood, as head of the Department 
of Improvement, and Chief Building Inspector, re­
quiring them to plead, answer or demur to the m atters 
herein, set forth and to show cause why they should 
not issue a building permit to petitioner.

Your petitioner further prays that a peremptory 
writ of mandamus be issued by this Honorable Court, 
commanding respondents to issue a building permit 
for the erection of petitioner’s residence.

And your petitioner prays for such other, further 
different and general relief as may in good conscience 
be proper.

Arthur D. Shores, 
Peter A. Hall, 
David H. Hood, Jr.



225

Before me, the undersigned authority, personally 
appeared Arthur D. Shores, who being by me first 
duly sworn deposes and says that he is one of the 
attorneys for petitioner in the above proceeding and 
that he is conversant with the facts alleged in the 
foregoing petition and that the same are true to the 
best of his knowledge and belief.

Arthur D. Shores.
Sworn to and subscribed before me this 3rd day of 

August, 1949.
AGNES N. STUDEMIRE,

(Seal) Notary Public.
Filed in office August 4, 1949.

JULIAN SWIFT,
Clerk Circuit Court.

SHERIFF’S RETURN.

Executed this the 8th day of August, 1949 by leaving 
a copy of the within with Jam es W. Morgan, as mem­
ber of the City Commission of Birmingham, Alabama.

h o l t  a . McDo w e l l ,
Sheriff, Jefferson County, 

Alabama.
By BEN L. INGRAM, D. S.

Executed this the 8th day of Aug., 1949 by leaving a 
copy of the within with H. E. Hagood, as Chief Build­
ing Inspector of the City of Birmingham, Alabama.

h o l t  a . McDo w e l l ,
Sheriff, Jefferson County, 

Alabama.
BEN L. INGRAM, D. S.



226

ORDER.

In The Circuit Court Of The Tenth Judicial 
Circuit Of Alabama.

State Of Alabama,
Jefferson County.

Mary Means Monk, Petitioner,
Vs.

James W. Morgan, As Member of the City Commission 
of Birmingham, Alabama and H. E. Hagood, Chief 
Building Inspector of the City of Birmingham, Ala­
bama, Respondents.

On reading and filing the verified petition of Mary 
Means Monk, the petitioner in the above styled cause 
and on motion of her attorney, let an alternative writ 
of mandamus issue out of and under the seal of this 
Court to Jam es W. Morgan and H. E. Hagood, as 
Commissioner of Public Improvement and Chief 
Building Inspector, respectively, commanding them 
and each of them to issue a building permit to peti­
tioner for the construction of a residence in accor­
dance with the plan and specification approved or 
in default thereof, they and each of them show cause 
before this Court at 9:30 A. M. on the 22nd day of 
August, 1949, why they and each of them, have not 
done so, by due return the said writ, and let a copy 
of said petition be served on each of said respondents 
with such writ.

J. EDGAR BOWRON,
Judge.

Filed in office Aug. 4, 1949.

JULIAN SWIFT,
Clerk Circuit Court.



227

ALTERNATIVE WRIT OF MANDAMUS.

Circuit Court Tenth Judicial Circuit of Alabama.

The State of Alabama,
Jefferson County.
To any Sheriff of said State—Greeting:

You are hereby commanded to serve a copy of the 
within process on Jam es W. Morgan as member of 
the City Commission of Birmingham, Alabama, and 
H. E. Hagood, as Chief Building Inspector of the City 
of Birmingham, Alabama, defendants and make due 
return of how you have executed same.

Witness my hand this 4 day of August, 1949.
JULIAN SWIFT,

Circuit Clerk.

ALTERNATIVE WRIT OF MANDAMUS.

In The Circuit Court Of The Tenth Judicial 
Circuit of Alabama.

State of Alabama,
Jefferson County.

Mary Means Monk, Petitioner,
Vs.

Jam es W. Morgan, as Member of the City Commission 
of the City of Birmingham, Alabama, and H. E. 
Hagood, Chief Building Inspector of the City of 

Birmingham, Alabama, Respondents.

To Jam es W. Morgan, as member of the City Com­
mission of Birmingham, Alabama and To H. E. Ha-



228

good, as Chief Building Inspector of the City of Birm­
ingham, Alabama. '

Greeting: Whereas it appears to this Court by the 
verified petition of Mary Means Monk, on file in the 
office of the Clerk of said Court that the said Mary 
Means Monk had been denied a building permit to 
erect a residence upon property owned by petitioner 
in the City of Birmingham, Alabama, after having 
complied with all regulations pursuant to the issuance 
of said building permit, and having made demand 
upon you to perform your duty in the issuance of 
said permit to build a residence, and that nevertheless, 
you, as the commissioner of public improvement, and 
as chief Building Inspector of the City of Birmingham 
with authority to order such permit, have unjustly 
failed and refused to issue said permit to the injury of 
the said Mary Means Monk, as appears to us by her 
petition, a true copy of which is attached hereto.

Now, threfore, we being willing that speedy justice 
should be done in this behalf to her, the said Mary 
Means Monk, do command and enjoin you that im­
mediately after the receipt of this writ, you acting in 
concert with other respondent, issue a building per­
mit to petitioner, Mary Means Monk for the con­
struction of a residence in accordance with the plan 
and specification as approved or that you show cause 
to the contrary before this Court on the 22nd day of 
August, 1949, or as soon thereafter as counsel can be 
heard, and that you plead, answer or demur at that 
time to the said verified petition.



229

This the 4th day of August, 1949.
J. EDGAR BOWRON, 

Judge.

JULIAN SWIFT, 
Clerk.

Filed in office Aug. 4, 1949.

JULIAN SWIFT,
Clerk Circuit Court.

ANSWER.

In The Circuit Court Of The Tenth Judicial Circuit
Of Alabama.

Mary Means Monk, Petitioner.
Vs. No. 19712 X.

Jam es W. Morgan, as Member of the City Commis­
sion of the City of Birmingham, Alabama, and 
H. E. Hagood, Chief Building Inspector of the 
City of Birmingham, Alabama, Respondents.

Come the respondents in the above styled cause, 
separately and severally, and for answer and return 
to the petition and alternative writ of mandamus in 
said cause aver and say, separately and severally:

1. Respondents admit the averments of Paragraph
1 of the petition.

2. Respondents admit the averments of Paragraph
2 of the petition.



230

3. Respondents admit the averments of Paragraph 
3 of the petition.

4. For answer to Paragraph 4 of the petition re­
spondents admit that petitioner had plans and speci­
fications drawn for a house proposed to be built by 
petitioner on said property described in Paragraph 3 
of the petition, Respondents further admit that said 
plans and specifications, together with an application 
for a building permit for said proposed house, were 
submitted by petitioner to respondent, H. E. Hagood, 
in his official capacity as Chief Building Inspector of 
the City of Birmingham, Respondents aver that re­
spondent, H. E. Hagood, was also acting in his official 
capacity as administrative officer and enforcing offi­
cer of Chapter 57 of the General Code of the City of 
Birmingham of 1944, in all transactions involving said 
plans, specifications and application for building per­
mit. Respondents deny that said plans, specifications 
and applications were approved by respondent, H. E. 
Hagood, Respondents aver that respondent, H. E. 
Hagood, examined said plans and specifications and 
found that said plans and specifications were in com­
pliance with the structural requirements of the Build­
ing Code of the City of Birmingham. Respondents fur­
ther aver that respondent, H. E. Hagood, examined 
said plans, specifications and application for build­
ing permit and found that the proposed use of said 
proposed house, and the land on which said house 
was proposed to be built, by petitioner, a person of 
the negro race, was contrary to and in violation of 
Chapter 57 of the General Code of the City of Birm­
ingham of 1944, relating to zoning in that said land 
upon which said house was proposed to be erected 
lies within an area in the City of Birmingham classi-



231

fied as “A-l Residence,” under the provisions of 
Chapter 57 of said City Code and respondents further 
aver that the use of occupancy by a person of the 
negro race of a building or part thereof located in such 
an eara so classified as ‘‘A-l Residence,” is prohibited 
by and is contrary to and in violation of Chapter 57 of 
said City Code. Respondents further aver that the 
respondent, H. E. Hagood, upon ascertaining that 
said proposed building was proposed to be used or 
occupied by petitioner contrary to and in violation of 
Chapter 57 of said City Code as aforesaid, did refuse 
to approve said plans, specifications and application 
for building permit and respondent, H. E. Hagood, did 
refuse to issue the building permit applied for.

5. For answer to Paragraph 5 of the petition re­
spondents deny that respondent, H. E. Hagood, at any 
time approved petitioner’s application for a building 
permit. Respondents admit that respondent, H. E. 
Hagood, did refuse to issue the building permit applied 
for by petitioner. Respondents aver that respondent, 
H. E. Hagood, stated to petitioner, in substance, that 
he (respondent, H. E. Hagood) could not issue said 
building permit because of the proposed illegal use 
of the building proposed to be erected and that he 
(respondent, H. E. Hagood) would discuss the m atter 
with respondent, Jam es W. Morgan, the City Com­
missioner having supervision of the Board of Adjust­
ment (Zoning) and of the administrative officer of 
Chapter 57 of said City Code.

6. Respondents deny the averments of Paragraph 
6 of the petition. Respondents aver that respondent, 
H. E. Hagood stated to petitioner that under no cir­
cumstances could construction of said proposed build-



232

ing be commenced in the absence of a duly issued 
building permit.

7. Respondents deny the averments of Paragraph 7 
of the petition.

8. For answer to Paragraph 8 of the petition re­
spondents admit that upon the return of respondent, 
James W. Morgan, petitioner made request of both 
respondents, Morgan and Hagood, that said building 
permit be issued. Respondents admit that they re­
fused and still refuse to issue said building permit. 
Respondents deny that petitioner has complied with 
all of the rules and regulations of the City of Birming­
ham. Respondents aver that petitioner has not com­
plied with the ordinances and City Code of the City 
of Birmingham, and respondents further aver that 
petitioner is not entitled to the issuance of said build­
ing permit.

9. Further answering the petition, and alternative 
writ of mandamus, respondents aver that the land 
described in Paragraph 3 of the petition is situated on 
the West side of Center Street, between 9th Court, 
West and 10th Avenue, West in the City of Birming­
ham, Alabama and said land lies within an area in 
said city classified as “A-l residence,” under the 
provisions of Chapter 57 of the General Code of the 
City of Birmingham, of 1944, and respondents further 
aver that the use or occupancy by a person of the 
negro race of a building or part thereof in an area in 
said city so classfiied as “A-l Residence,” is pro­
hibited by and is contrary to and in violation of Chap­
ter 57 of said City Code, Respondents further aver that 
petitioner is a person of the negro race. Respondents



233

further aver that Section 1595 of Chapter 57 of said 
City Code requires respondent, H. E. Hagood, in his 
capacity as the administrative officer and enforcing 
officer of Chapter 57 of said City Code, in all cases 
of application for building permits “to determine that 
the proposed structure and use of land will conform 
to the provisions of,’’ said Chapter 57, said Section 
1595 being in words and figures as follows:

“Sec. 1595. Plants Required With Application For 
Building Permits.

All applications for building permits shall be ac­
companied by a plat in duplicate, drawn to scale, 
showing the actual dimensions of each lot to be built 
upon, the size and location of each building to be 
erected upon each lot and such other information as 
may be necessary to enable the administrative officer 
to determine that the proposed structure and use of 
land will conform to the provisions of this chapter. A 
record of such applications and plats shall be kept 
in the office of the administrative officer.’’

Respondents further aver that the said plans and 
application for building permit each contain informa­
tion, clearly showing that petitioner proposed to use 
or occupy as her home or residence said building 
proposed to be erected by petitioner upon said land 
described in Paragraph 3 of the petition. Respondents 
further aver that petitioner stated to respondent, H. 
E. Hagood, at or about the time said application for 
building permit was submitted to respondent, H. E. 
Hagood, that petitioner proposed to erect said build­
ing for use and occupancy by petitioner as petitioner’s 
home and residence. Respondents further aver that



234

from the aforesaid information contained in said 
plans and application for building permit and the 
aforesaid statements made by petitioner the respon­
dent, H. E. Hagood, determined that the proposed use 
of said land and the building proposed to be erected 
thereon would not conform to the provisions of Chap­
ter 57 of said City Code, and respondent, H. E. Ha­
good, thereupon refused to issue said building permit. 
Respondents further aver that it was the duty of re­
spondent H. E. Hagood, under the provisions of Chap­
ter 57 of said City Code, to refuse to issue said build- 
ling permit upon his determining that the proposed 
use of said land and the building proposed to be 
erected thereon would not conform to the provisions 
of Chapter 57 of said City Code, and respondent, H. E. 
Hagood, thereupon refused to issue said building per­
mit. Respondents further aver that it was the duty 
of respondent, H. E. Hagood, under the provisions 
of Chapter 57 of said City Code, to refuse to issue 
said building permit upon his determining that the 
proposed use of said land and the building proposed 
to be erected thereon would not conform to the pro­
visions of Chapter 57 of said City Code.

10. Further answering said petition and alterna­
tive writ of mandamus, respondents aver that under 
the provisions of Section 717 of Title 62, Alabama Code 
of 1940, petitioner could take an appeal to the Board 
of Adjustment from the decision of respondent, H. E. 
Hagood, as administrative officer of Chapter 57 of said 
City Code, refusing to issue said building permit. The 
pertinent portion of said Section 717 is as follows:

“Appeals to the board of adjustment may be taken
by any person aggrieved or by any officer, depart-



235

ment, board or bureau of the municipality affected 
by any decision of the administrative officer.”

Respondents further aver that petitioner has not 
taken an appeal to the Board of Adjustment from the 
said decision of respondent, H. E. Hagood, in his capa­
city as administrative officer of said Chapter 57, re­
fusing to issue said building permit. Respondents fur­
ther aver that Section 719 of Title 62, Code of Alabama 
of 1940, provides for an appeal to the circuit Court 
from any final judgment or decision -of the Board of 
Adjustment. Said Section 719 of Title 62 is as follows:

Sec. 719. Appeals. Any party aggrieved by any final 
Judgment or decision of the Board of Adjustment, 
may within fifteen days thereafter appeal therefrom to 
the circuit Court of Court of like jurisdiction by filing 
with such board a written notice of appeal, specifying 
the judgment or decision from which appeal is taken. 
In case of such appeal such board shall cause a tran­
script of the proceedings in the cause to be certified to 
the Court to which the appeal is taken and the cause 
shall in such Court be tried de novo.”

Respondents further aver that petitioner has not 
availed herself of the right of appeal provided for in 
Section 719 of Title 62, Alabama Code of 1940. Respon­
dents further aver that petitioner is not entitled to 
invoke the extraordinary remedy of mandamus in this 
proceeding when petitioner has failed to pursue peti­
tioner’s statutory right of appeal.

11. Further answering the petition and alternative 
writ of mandamus, respondents aver that in the im­
mediate vicinity of said land described in Paragraph



236

3 of the petition there have been numerous occurences 
of violence, disturbances of the peace and destruction 
of property when attempts have been made by mem­
bers of one race to use or occupy as residences build­
ings located in areas classified under the provisions 
of Chapter 57 of said City Code for use and occupancy 
by members of the other race. Respondents further 
aver that future attempts by members of one race 
to use or occupy as residences buildings located in 
areas classified under the provisions of Chapter 57 of 
said City Code for use and occupancy by members 
of the other race will probably result in acts of violence, 
riots, disturbances of the peace, destruction of prop­
erty, confusion and disorder. Respondents further aver 
that the extraordinary remedy of mandamus is not 
available to petitioner to produce a condition in viola­
tion of Chapter 57 of said City Code, which will 
probably result in acts of violence, riots, disturbances 
of the peace, destruction of property, confusion and 
disorder.

Wherefore, respondents pray that the petition be 
dismissed and said writ discharged, at the cost of 
petitioner.

THOMAS E. HUEY, JR., 
Attorney for Respondents.

Filed in open court this 22nd day of August, 1949.
JULIAN SWIFT,

Clerk Circuit Court.



237

DEMURRER.

In The Circuit Court Of The Tenth Judcial 
Circuit Of Alabama.

State of Alabama,
Jefferson County.

Mary Means Monk, Petitioner, 
vs.

Jam es W. Morgan, as Member of the City Commission 
of the City of Birmingham, Alabama, H. E. Ha- 
good, Chief Building Inspector of the City of 
Birmingham, Alabama, Respondents.

Comes the Petitioner and demure to Respondents 
answers and return to alternative writ in said cause 
and to each and every allegation thereof separately 
and severally as except paragraphs one, two and 
three follows:

1. That said return is insufficient as a m atter of 
law.

2. That said return states in substance that to issue 
a permit would violate Chapter 57 of City Code and as 
too vague, indefinite and uncertain.

ARTHUR D. SHORES, 
PETER A. HALL,
DAVID HOOD, JR.

Filed in open Court this 22 day of Aug. 1949.
JULIAN SWIFT,

Clerk Circuit Court.



238

MINUTE ENTRY.

Mary Means Monk, 
vs.

Janies W. Morgan, as Member of the City Commission 
of the City of Birmingham, Alabama, and H. E. 
Hagood, Chief Building Inspector of the City of 
Birmingham, Alabama.
Present And Presiding, J. Edgar Bowron, 

Judge of Circuit Court.
On this 22nd day of August, 1949, came the parties 

by their attorneys, and respondents by separate paper 
file answer to petition and alternative writ; petitioner 
by separate paper demurs to said answer; petitioner 
moves the Court to dismiss this petition without preju­
dice, whereupon,

It is ordered and adjudged by the Court that this 
petition be and the same is hereby dismissed without 
prejudice and that the petitioner be taxed with all 
costs herein accrued for which execution may issue.

CERTIFICATE OF JUDGMENT UNDER 
ACTS OF CONGRESS.

Circuit Court, Tenth Judicial Circuit Of Alabama.

The State Of Alabama,
Jefferson County.

I, Julian Swift, Clerk of the Circuit Court of the 
Tenth Judicial Circuit of Alabama, in and for said 
State and County, do hereby certify that the foregoing 
pages, numbered from one to eleven, inclusive, con­
tain a full, true and correct copy and exemplification



239

of the record of the cause of Mary Means Monk, 
Plaintiff, vs. Jam es W. Morgan, as member of the 
City Commission of the City of Birmingham, Alabama, 
and H. E. Hagood, Chief Building Inspector of the 
City of Birmingham, Alabama are Defendants, as ap­
pears of record in said Court.

Witness my hand and the seal of said Court, this 
10 day of Dec. 1949.

(S.) JULIAN SWIFT,
Clerk of Circuit Court of the 
Tenth Judicial Circuit of 

Ala.
Circuit Court, Tenth Judicial Circuit Of Alabama.

The State Of Alabama,
Jefferson County.

I, ..............................  one of the Judges of the Cir­
cuit Court of the Tenth Judicial Circuit of Alabama, 
do hereby certify that Julian Swift, whose name is 
signed to the preceding certificate, is the Clerk of the 
Circuit Court of the Tenth Judicial Circuit of Alabama, 
duly elected and sworn, and that full faith and credit 
are due to his official acts. I further certify that the 
seal affixed to the said exemplification is the seal of 
said Circuit Court, and that the attestation thereof is 
in due form of law.

This 10 day of Dec. 1949.
(S.) C. B. SMITH,

One of the Judges of the 
Circuit Court of the Tenth 
Judicial Circuit of Ala.

Circuit Court, Tenth Judicial Circuit Of Alabama.



240

The State Of Alabama,
Jefferson County.

I, Julian Swift, Clerk of the Circuit Court of the 
Tenth Judicial Circuit of Alabama, do hereby certify
that Hon..........................  whose name is signed to the
foregoing certificate, is one of the Judges of the Tenth 
Judicial Circuit of Alabama, duly elected and sworn, 
and that the signature of said Judge is genuine.

In witness whereof, I have hereto set my hand and 
affixed the seal of said Court, this 10 day of Decem­
ber, 1949.

(S.) JULIAN SWIFT,
Clerk of the Circuit Court 

of the Tenth Judicial Cir­
cuit of Ala.

Mr. Wilkinson:
We offer to show by the Assistant City Attorney, 

who conducted the case, the circumstances under 
which the order of dismissal was taken, that is to say 
when the proposition was raised that the petitioner 
had not complied with the zoning ordinance by taking 
an appeal from Mr. Hagood’s ruling, that petition 
was dismissed.

The Court:
Well, I don’t think you could go behind the record 

itself. The record shows that the case was dismissed 
without prejudice, so I don’t think it would have any 
bearing.

Mr. Wilkinson:
I don’t claim that the case is res adjudicata or any­

thing. What I am offering it for is to show under what



241

circumstances it was dismissed, and that under those 
circumstances the Court could infer and find from 
those circumstances in connection with that record an 
admission on the part of the Plaintiff that she had not 
pursued, had not met the requirements of the law, and 
had not pursued the remedy provided by law.

The Court:
I don’t think the proceedings are really admissible, 

but I will change my ruling on it, and admit it.

Mr. Wilkinson:
Mr. Huey, will you take the stand?

The Court:
If is in evidence.

T. E. HUEY, JR., called as a witness on behalf of 
the Defendants, being first duly sworn, testified as 
follows:

Direct Examination.

By Mr. Wilkinson:
Q. Mr. Huey, what are your initials for the record, 

please, sir?
A. T. E. Huey, Jr.
Q. Are you one of the Assistant City Attorneys 

for the City of Birmingham?
A. Yes, sir.
Q. Did you handle the case of Mary Means Monk, 

Petitioner, versus Jam es W. Morgan, as a member 
of the City Commission of the City of Birmingham 
and H. E. Hagood, Chief Building Inspector of the City



242

of Birmingham, No. 19712 X, in the Circuit Court of 
the Tenth Judicial Circuit?

A. Yes, sir.
Q. I hand you a certified copy of the proceedings 

in that case. Were you present when the order of 
dismissal without prejudice was taken?

A. Yes, sir, I was.
Q. Will you please tell his Honor the circumstances 

under which that order was taken?

Mr. Marshall:
For the record, we object on two grounds. One is 

that any statements that do not appear in the 
record, or which were made outside of the record are 
not admissible under any circumstances. And the 
second ground is that it is imm aterial to this case as 
to what transpired in a state Court involving a state 
proceeding, under the state statutes.

The Court:
You merely expect to show by him as I understand 

it that the Plaintiff, Monk, in this case, did not take 
an appeal from Hagood to the City Commission, is 
that correct?

Mr. Wilkinson:
Yes, sir, and that when that question was raised 

in the Circuit Court, that she dismissed her petition 
there.

The Court:
That is already shown I think in the case.

The Witness:
Not to the building—if I may state this, not to the 

City Commission, but to the Board of Adjustment.



243

Mr, Wilkinson:
The Board of Adjustment.

The Witness:
That is the point reaised in this case under the 

statute, the requirement of appeal.

Mr. Marshall:
The proper way, if I may just submit, sir, it seems 

to me the proper way to prove that point is by the 
Board of Adjustment, not by this witness, as to what 
somebody told him.

Mr. Wilkinson:
What I want to show the Court is what is tantamount 

to an admission in open Court that she had not prose­
cuted her appeal to the Board of Adjustment, and dis­
missed her petition when that point was raised.

The Court:
I sustain the objection.

Mr. Wilkinson:
We reserve an exception and offer to show those 

facts. I think with that we will rest, if Your Honor 
please. We have several other witnesses, representa­
tives of the building and loan associations, and repre­
sentatives of the mortgage companies and other fi­
nancial institutions, but I think my offer to show 
covers it, and we don’t care to take up the time of the 
Court with just repeating the same proposition.

The Court:
That’s all right.



244

Mr. Wilkinson:
As I have attempted to develop with the other 

witnesses. With that we will rest.

The Court:
Let Mr. Connor come back. I want to ask him a 

question or two.

EUGENE CONNOR, recalled as a witness on behalf 
of the Defendants, having been previously sworn, 
testified further as follows:

Direct Examination.

By The Court:
Q. Mr. Connor, these zoning ordinances, Sections 

1604 and 1605 of the City Code, and this last ordinance 
which I believe is No. 709F, does the City Commisson 
underetake to enforce the provisions of those ordi­
nances as they are written, is that the policy of the 
City Commission?

A. I would say “ Yes,” Judge.
Q. Is it the policy and universal custom of the 

City Commission not to permit the issuance of permits 
to Negroes to build dwellings to be occupied by them 
in zones that are zoined for white residences?

A. I don’t think I am capable of answering that. 
The issuing of permits does not come under my super­
vision.

The Court:
All right. That’s all I want to ask you.



Mr. Wilkinson: 
That is all.

245

(Witness excused.)

Mr. Wilkinson:
We rest.

The Court:
Is there anything in rebuttal?

Mr. Shores:
Is Commissioner Morgan here?

Mr. Wilkinson:
He has gone.

Mr. Shores:
We don’t have any rebuttal,Your Honor.

The Court:
All right, that is the evidence in the case then, 

i s  i t ?

Mr. Shores:
Yes, sir.

The Court:
All right, the witnesses can be excused.

(Thereupon, respective counsel argued to the 
Court.)



246

The Court:
I am going to decide this case at this time. I want 

to make a statement about it, and I want absolute 
quiet, I don’t want any noise or demonstration on the 
part of anybody when I get through with it.

I went into the case thinking that the judgment of 
this Court would probably be controlled by the deci­
sion of the Supreme Court of the United States in 
Buchanan versus Warley, and there is nothing that has 
occurred in the case that changes that view. It is my 
idea that the Supreme Court of the United States has 
expressly passed on this question in three different 
cases, and I am bound by those decisions, and it is 
my duty to follow them.

It is my view that the Plaintiffs are entitled to 
the relief prayed for in this case, and I wish to make 
this statement in connection with my judgment.

Perhaps contrary to the belief of some, the legal 
question presented in this case is not new. In 1915, 
some 35 years ago, the Supreme Court of Georgia 
ruled a similar ordinance of the City of Atlanta un­
constitutional. It is not without significance that the 
Court that handed down that ruling was not a “car­
petbag” or “scalawag” Court, but was composed of 
Southern judges chosen by Southern people, and that 
their decision, coming 50 years after the war between 
the states, was handed down in an atmosphere free 
from the passions created by that conflict and its af­
termath.

In 1917, the Supreme Court of the United States de­
clared a similar ordinance of another city invalid



247

under the Constitution of the United States, expressly 
relying upon the same reasoning the Supreme Court 
of Georgia had used in its decision. Since then, the 
highest state Court of the Southern States of Virginia, 
Oklahoma, North Carolina, and Texas have held such 
ordinances unconstitutional. While this Court is not 
bound by the decisions of those states, it it bound by 
the decisions of the United States Supreme Court. This 
being a Government of laws and not of men, it is 
the duty of this Court to follow the rulings of the 
Supreme Court of the United States on constitutional 
questions. On the validity of a zoning ordinance based 
on race or color, the Supreme Court of the United 
States has repeatedly reaffirmed its decision of 1917, 
leaving this Court no doubt as to its commands on this 
subject. The zoning ordinances involved in this case 
must be held to be unconstiutional and their further 
enforcement enjoined.

However, it would be clear that this is one of those 
problems that cannot, because of its very nature, 
be solved by law alone. If it is to be solved, it must 
be solved by attitudes of cooperation between the 
races and by a determination of both races that it 
will be solved by the application of common sense and 
fair dealing.

Choosing neighborhoods in which to live and neigh­
bors by whom to live involves a great deal more than 
a problem of races. It is a m atter of personal habits, 
personalities and other individual conditions which, 
in their nature, do not necessarily involve the question 
of race or color. The same reasons that would influ­
ence a member of the white race to reject a home 
in some white neighborhoods might operate equally



248

to cause a colored citizen to reject a home in some 
colored neighborhoods. No persons, whether white 
or colored, should actually desire or attem pt to move 
into a neighborhood in which he knows he will be 
received in any but a neighborly atmosphere, because 
his ultimate happiness and that of his family can 
only be destroyed by such an unwise selection.

Like all things of great value, the solution of this 
problem may not come easy. No respectable, law abid­
ing citizen can believe that violence will aid in the 
solution of this problem. The solution will come with 
a mutual spirit of moderation and a forbearance of 
destructive passions. The people of other Southern 
cities, including Atlanta, Georgia, Winston-Salem, 
North Calorina, Dallas, Texas, Louisville, Kentucky, 
New Orleans, Louisiana, Richmond, Virginia, and 
Oklahoma City have solved their problems without 
restrictive ordinances, similar ordinances of such 
cities having been held unconstitutional. I am confi­
dent that the people of Birmingham are equally cap­
able of working out a satisfactory solution.

Judgment in the case will be for the Plaintiffs. 

* * * * * * * *



249

OPINION.

Filed December 16, 1949.

(Title Omitted).

This is a class action brought by the plaintiffs, who 
are Negro citizens of the City of Birmingham, for and 
on behalf of themselves and all other Negro citizens of 
said City who are similarly situated and who own 
real estate in said City that is affected by certain 
zoning ordinances of said City. The zoning provisions 
involved are Sections 1604 and 1605 of the General City 
Code of Birmingham, 1944, and Ordinance No. 709-F. 
For convenience these code sections and ordinance 
may hereafter be referred to merely as zoning ordi­
nances. The plaintiff seeks to declare said zoning ordi­
nances unconstitutional as being in violation of the 
Fourteenth Amendment to the Constitution of the 
United States, and seek injunctive relief against the 
further enforcement of the same. The defendants are 
the City of Birmingham, a municipal corporation, 
Jam es W. Horgan, one of its city commissioners, and 
H. E. Hagood, its building inspector.

The two code sections constitute provisions of the 
general comprehensive zoning ordinance of the City 
of Birmingham adopted in 1926. With exceptions not 
here material, Section 1604 provides that no building 
or part thereof in certain residence districts shall be 
occupied or used by persons of the Negro Race; Sec­
tion 1605 provides that no building or part thereon in 
certain other residence districts shall be occupied or 
used by persons of the white race. Ordinance 709-F, 
adopted on the 9th day of August, 1949, is in its nature



250

supplemental to said code sections. This ordinance 
provides that it shall be a misdemeanor for a member 
of the white race to move into, for the purpose of es­
tablishing a permanent residence, or having moved 
into, to continue to reside in an area in the City of Bir­
mingham generally and historically recognized at the 
time as an area for occupancy by members of the col­
ored race, and likewise makes it a misdemeanor for a 
member of the colored race to move into, for the 
purpose of establishing a permanent residence, or 
having moved into, to continue to reside in an area in 
the City of Birmingham generally and historically 
recognized at the time as an area for occupancy by 
members of the white race. “Perm anent residence,” 
as defined in said ordinance, means the occupancy 
of a house or tenament for more than 24 hours. It is 
provided that the moving into for the purpose of 
establishing a permanent residence shall constitute 
a separate offense from remaining there, and that 
remaining in residence in a forbidden area for each 
24 hour period shall constitute a separate offense. This 
ordinance also provides that the zoning ordinances of 
the City of Birmingham in effect at the time of its 
passage “substantially and fairly well delineate those 
areas historically and generally regarded as available 
for residences and occupation by members of the 
white and colored races.”

Under the provisions of Section 4 and 1600 of the 
defendant City’s code, it is a criminal offense subject 
to fine and imprisonment, to violate any of the provi­
sions of said code section 1604 and 1605 and ordinance 
709-F.



251

This Court takes judicial notice of the ordinances 
of the City of Birmingham. Title 7, Section 429(1), 
Code of Alabama 1940, as amended June 18, 1943.

The plaintiffs aver that they own certain real prop­
erty in the City of Birmingham that is affected by and 
subject to the provisions of said zoning ordinances, 
the particular real property owned by each of said 
plaintiffs being particularly described opposite his 
or her name in paragraph 4 of the complaint. They 
further aver that sections 1604 and 1605 of said code 
and ordinance 709-F deny to plaintiffs, and others 
similarly situated, the right to occupy, enjoy and dis­
pose of their property, in violation of the Fourteenth 
Amendment to the Constitution of the United States. 
The plaintiffs contend that said zoning ordinances are 
void t s violative of the Fourteenth Amendment, be­
cause their right to use and occupy their properties 
is denied to them under the provisions of said ordi­
nances solely on the basis of race or color; and 
plaintiffs aver that, unless they can obtain relief 
from this Court, the present zoning and classification 
of said property is tantamount to its confiscation. They 
aver that they are threatened with irreparable injury 
in the futures and have no plain or adequate remedy 
at law other than by a declaration of rights and a 
tem porary and permanent injunction against the fur­
ther enforcement of said ordinances.

The complaint and the proof show an actual justici­
able controversy existing between the plaintiffs and 
the defendants and that this is a proper class action.

The case was tried to the Court without a jury on 
oral testimony, written exhibits and certain stipula-



252

tions of the parties, and after oral arguments was 
duly submitted. Upon the evidence offered, the Court 
finds that each of the plaintiffs owns the particular 
real estate described opposite his or her name, as set 
out and described in paragraph 4 of the complaint; 
that each of the plaintiffs purchased said property 
prior to the filing of this suit for the purpose of using 
or occupying the same for residential purposes; that 
the property of each of the plaintiffs is affected by and 
subject to the provisions of said zoning ordinances 
and that neither the plaintiffs nor other members of 
the Negro race will be permitted to occupy said prop­
erty as a home or for dwelling purposes solely because 
they are Negroes, all of said property being restricted 
to white residential use under the provisions of said 
ordinances.

The Court further finds that none of the plaintiffs 
will be permitted by said City to construct residences 
on said properties to be occupied by them or any 
member of the Negro race because said City will not 
issue permits for such construction solely because the 
provisions of said ordinances limit the occupancy of 
said properties to members of the white race.

The Court further finds that all of the properties 
of all of the plaintiffs are located in sections of said 
City that have been, and now are, by virtue of the 
provisions of said zoning ordinances, reserved exclu­
sively for occupation by white persons; that it is the 
established and universal policy and custom of the 
officials of said City to deny building permits to con­
struct residences for Negro occupancy in districts 
that are zoned for white occupancy, and this custom



253

and policy on the part of said officials is frankly 
admitted by them in their testimony in this case.

The Court further finds that, if dwellings were erect­
ed on said properties, the plaintiffs or other Negroes 
could not occupy the same without becoming subject, 
under the provisions of said zoning ordinances, to 
criminal prosecution, fine and imprisonment solely on 
account of the fact that they are members of the 
Negro race.

The Court finds that the plaintiff, Mary Means 
Monk, is a Negro, a citizen of the United States, and 
a resident of the City of Birmingham, Alabama; that 
she is the owner of real property located in the City 
of Birmingham, Jefferson County, Alabama, as de- 
scirbed in paragraph 4 of the complaint, and that she 
paid $2,000 for said property and bought it for the 
purpose of building thereon a home for herself and 
family. The Court finds further that she employed a 
contractor to draw plans and specifications for said 
house and has paid him $2,000 on the construction 
price of the house, making a total of $4,000 actually 
expended by the plaintiff, Mary Means Monk, up to the 
date of this suit in and about the construction of the 
proposed dwelling. These plans and specifications 
were submitted by the plaintiff, Mary Means Monk, 
and her contractor to H. E. Hagood, Building Inspec­
tor of the City of Birmingham, who, after minor 
changes had been made in accordance with his in­
structions, approved the plans and specifications as 
complying with all of the requirements of the Build­
ing Code of the City of Birmingham. Under said Build­
ing code no person can erect a building without first 
obtaining a permit therefor from the building inspec-



254

tor. The Court finds further that, after repeated re­
quests for a permit to build on her said property made 
by the plaintiff, Mary Means Monk, and her contrac­
tor to the officials of said City authorized to issue 
building permits, a building permit was refused by 
them solely on the ground that the property was zoned 
exclusively for occupancy by members of the white 
race.

The Court finds further that unless injunctive re­
lief is granted by this Court as prayed, the plaintiffs 
will suffer irreparable injury and damage, and that 
the plaintiffs, do not have an adequate remedy at law.

Each of the plaintiffs is a Negro, a citizen of the 
United States, and a resident of the City of Birming­
ham, Jefferson County, Alabama, which is within 
the Southern Division of this Court. The defendant, 
City of Birmingham, is a municipal corporation creat­
ed and organized under the laws of the State of Ala­
bama and exercising powers conferred upon it by said 
State. The defendant, Jam es W. Morgan, is one of the 
Commissioners of the City of Birmingham, the Com­
missioners being the governing body of said City. As 
such Commissioners, he is the head of the department 
of the City empowered to grant or deny building per­
mits. H. E. Hagood is the Building Inspector of said 
City and as such is authorized to grant or refuse 
building permits and is the chief enforcement officer 
of its zoning ordinances.

When a party has complied with the vailid provi­
sions of a municipal building code, a suit attacking 
the constitutionality of an ordinance which prohibits 
the use or occupancy of property solely on the basis of



255

race or color is not prematurely brought. Where a 
statute clearly and immediately affects property 
rights of a citizen, he has an immediate and present 
controversy with reference to the validity of such a 
statute without first subjecting himself to a criminal 
prosecution or other sever penalties provided by the 
statute, Terrace v. Thompson, 263 U. S. 197; Pierce 
v. Society of Sisters, 268 U. S. 510; Euclid v. Ambler 
Realty Co., 272 U. S. 365.

It clearly appears that plaintiffs in this case, and 
other Negro citizens similarly situated, would be sub­
ject to punishment by a fine and imprisonment under 
the provisions of Sections 4, 1600, 1604 and 1605 of the 
General City Code of Birmingham, 1944, and Ordi- 
nace 709-F if they occupied their property for residen­
tial purposes. The mere existence of the zoning pro­
visions attacked deprives the plaintiffs of the free 
use of their property and their right to sell it for 
Negro occupancy, and therefore an actual and present­
ly justiciable controversy exists for declaratory judg­
ment to determine the constitutionality of said zoning 
ordinances. Euclid v. Ambler Realty Co,, supra; Bu­
chanan v. Warley, 245 U. S. 60.

It is not amiss to say this Court has heretofore, in 
the case of Matthews v. The City of Birmingham 
(unreported), decided on the 4th day of August, 1947, 
declared two of the zoning provisions here involved, 
namely, Sections 1604 and 1605 of the General City 
Code of Birmingham, 1944, unconstitutional on the 
ground that said sections were violative of the due 
process clause of the Fourteenth Amendment to the 
Constitution of the United States. However, that case 
was not a class action and the injunctive relief granted 
merely ran in favor of the plaintiffs in that case.



256

Some 75 years ago the Supreme Court, in Hall v. 
DeCuir, 95 U. S. 485, recognized that colored persons 
were citizens of the United States and that they had 
the right to purchase, enjoy and use property without 
laws discriminating against them solely on account 
of race or color.

More than 30 years ago, in Buchanan v. Warley, 
supra, the Supreme Coprt nullified an ordinance of the 
City of Louisville similar in effect to the three ordi­
nances here involved on the ground that they violated 
the due process clause of the Fourteenth Amendment 
to the Constitution. It is interesting to note that in 
that case the Supreme Court quoted from and relied 
upon a prior decision of the Supreme Court of Georgia 
which had nullified a zoning ordinance of the City 
of Atlanta that was based solely upon race or color. 
The Georgia Court had declared as to such an ordi­
nance:

“The effect of the ordinance under consideration 
was not merely to regulate a business or the like, but 
was to destroy the right of the individual to acquire, 
enjoy, and dispose of his property. Being of this 
character, it was void as being opposed to the due- 
process clause of the constitution.” Carey et al. v. 
City of Atlanta et al.,( 143 Ga. 192, 84 S. E. 456 (1915).

In the Buchanan Case it was argued, as here, that 
the City had a right to zone on a basis of race or color 
under its police power for the purpose of accomplish­
ing segregation, preserving the public peace, and pre­
venting the depreciation of property values and race 
hostility, but the Supreme Court said that the solution 
of such problems could not be promoted by depriving



257

citizens of their constitutional rights and privileges, 
and further said:

“It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as is the 
preservation of the public peace, this aim cannot be 
accomplished by laws or ordinances which deny rights 
created or protected by the Federal Constitution.

“ It is said that such acquisitions by colored persons 
depreciate property owned in the neighborhood by 
white persons. But property may be acquired by un­
desirable white neighbors or put to disagreeable 
though lawful uses with like results.

“We think this attem pt to prevent the alienation of 
the property in question to a person of color was not a 
legitimate exercise of the police power of the State, 
and is in direct violation of the fundamental law enac­
ted in the Fourteenth Amendment of the Constitution 
preventing state interference with property rights 
except by due process of law. That being the case, 
the ordinance cannot stand. Booth v. Illinois, 184 U. S. 
425, 429; Otis v. Parker, 187 U. S. 606, 609.”

In the same case the Court further declared:

“The Federal Constitution and laws passed within 
its authority are by the express term s of that in­
strument made the supreme law of the land. The 
Fourteenth Amendment protects life, liberty, and 
property from invasion by the States without due 
process of law. Property is more than the mere thing 
which a person owns. It is elementary that it includes



258

the right to acquire, use, and dispose of it. The Con­
stitution protects these essential attributes of property. 
Holden v. Hardy, 169 U. S. 366, 391. Property consists 
of the free use, enjoyment, and disposal of a person’s 
acquisitions without control or diminution save by the 
law of the land. 1 Blackstone’s Commentaries (Coo­
ley’s Ed.), 127.” (Emphasis supplied.)

In the Buchanan Case the Supreme Court recognized 
that the ownership of property is not absolute and un­
qualified ; that the disposition and use of property 
could be controlled in the exercise of the police power, 
within constitutional limits, in the interest of the 
public health, convenience or welfare; that harmful 
occupations and legitimate businesses could be regu­
lated in the interest of the public; and that certain 
uses of property could be confined to portions of a 
municipality other than residential districts, because 
of the impairment of the health and comfort of the 
occupants of neighboring property. But the Court 
held, in language that all who can read can under­
stand, that an ordinance which attempted to nullify 
“the civil right of a white man to dispose of his prop­
erty if he saw fit to do so to a person of color and of 
a colored person to make such disposition to a white 
person” was violative of the provisions of the Four­
teenth Amendment to the Federal Constitution and 
did not constitute a legitimate exercise of the police 
power of the State. It is to be noted that the effect 
of the holding of the Supreme Court in this case was 
that the due process clause of the Fourteenth Amend­
ment not only protects the free use, enjoyment, and 
disposal of property by colored persons, but that it 
likewise protects the free use, enjoyment, and disposal 
of property by white persons.



259

Subsequently, in the case of Euclid v. Ambler 
Realty Co., supra, the Supreme Court expressly recog­
nized the right of a municipality to enact a general 
zoning ordinance in the interest of the general wel­
fare, but in so far as the record discloses, the ordi­
nance there upheld made no attempt to zone upon 
the basis of race or color.

After the Buchanan decision, the City of New Or­
leans enacted an ordinance making it unlawful for 
any white person to establish his home or residence 
in a Negro community, or portion of the city inhabi­
ted principally by Negroes or for any Negro to es­
tablish his home or residence in a white community 
or portion of the city inhabited principally by white 
people, “except on the written consent of a majority 
of the persons of the opposite race inhabiting such 
community or portion of the city to be affected.” This 
ordinance made each seven days’ maintenance of 
a home or residence established in violation thereof 
a criminal offense. In the preamble of this ordinance 
it was said to be enacted to foster a separation of the 
white and Negro residence communities, “in the 
interest of public peace and welfare,” and the ordi­
nance was enacted under authority of acts of the 
Legislature of Louisiana enacted in 1912 and 1924. 
The Supreme Court of Louisiana, Tyler v. Harmon, 
158 La. 439, 104, So. 200, upheld the New Orleans ordi­
nance on the theory that it was a zoning ordinance 
within the police power of the municipality. In an able 
opinion, the Court attempted to distinguish its holding 
from that of the Supreme Court in the case of Buchan­
an v. Warley, on the theory that the latter case merely 
held that the Louisville ordinance was unconstitutional 
because it interfered with the right to sell property



260

and constituted an unconstitutinal restriction on the 
freedom of contract.

The Louisiana Court took the position that the New 
Orleans ordinance merely prohibited the use of prop­
erty on the basis of race or color and placed no re­
striction upon the right of ownership of property, and 
ruled that Buchanan v. Warley had no application. 
The Louisiana Court held, in effect, that the ordinance 
constituted merely a social regulation as to the use or 
occupancy of property, and, therefore, did not con­
stitute a violation of the due process clause of the 
Fourteenth Amendment; that the segregation ordin­
ance in question was only another kind of zoning with­
in the police power of the city. When this case 
reached the Supreme Court, it was reversed per cur­
iam, without written opinion, on the authority of 
Buchanan v. Warley, thereby indicating that the Su­
preme Court meant by its opinion in Buchanan v. 
Warley to protect not only the right to acquire and 
sell property but also the right to freely use and enjoy 
the same. Harmon v. Tyler, 273 U. S. 668 (1927). 
The defendants here rely upon the doctrine of the decision 
of Plessy v. Ferguson, 163 U. S. 537, and also upon the pro­
position that the property of the plaintiffs in this case 
was subject to the restructions of the zoning ordin­
ances here challenged at the time they purchased the 
property. These arguments cannot stand because the 
Louisiana Court relied on both and was reversed not­
withstanding.

In the case of City of Richmond et al. v. Deans, 37 
F. 2d 712, the Circuit Court of Appeals for the Fourth 
Circuit affirmed the decision of a District Court de­
claring unconstitutional an ordinance of the City of



261

Richmond “To prohibit any person from using as a 
residence any building or any street between inter­
secting streets where the majority o the residences on 
such street are occupied by those with whom said 
person is forbidden to interm arry by Section 5 of an 
Act of the General Assembly of Virginia entitled ‘An 
Act to Preserve Racial Integrity.’” The Court stated 
that they agreed with the judge below that the case 
was controlled by the decisions in Buchanan v. Warley 
and Harmon v. Tyler. The Court pointed out that the 
Richmond zoning ordinance based its interdiction on 
the legal prohibition of interm arriage and not on race 
or color, that nevertheless it was controlled by the de­
cisions of the Supreme Court in the cases last referred 
to, as the legal prohibition of intermarriage was it­
self based on race; and that the question there in­
volved in the final analysis was identical with that 
which the Supreme Court had twice decided in the 
cases cited. On the appeal of this case to the Supreme 
Court, Richmond v. Deans, 281 U. S. 704, it was af­
firmed per curiam, without written opinion, on the 
authority of Buchanan v. Warley and Harmon v. Ty­
ler, thus affirmed beyond all doubt that the Supreme 
Court intended its decisions in those cases to hold 
that the right to acquire, own, dispose of, use and 
enjoy property could not be interferred with under 
the police power by ordinances attempting to zone on 
the basis of race or color.

As already indicated, the Supreme Court of Georgia 
was one of the first Courts to nullify a zoning prohibit­
ing the right to use and occupy property on the basis 
of race or color. Georgia is not the only Southern 
State that has nullified such discriminatory ordin­
ances. The highest Courts of Virginia, North Caro-



262

lina, Texas and Oklahoma have likewise declared or­
dinances similar in effect to those here under consid­
eration. unconstitutional, as being in violation of the 
Fourteenth Amendment to the Federal Constitution. 
Irving v. City of Clifton, Forge, 124 Va. 781, 97 S. E. 
310; Clinard et al. v. City of Winston-Salem et al. (N. 
C.), 6 S. E. 2d 867; 126 A. L. R. 634; Allen v. Okla­
homa City et al. (Okla.), 52 Pac. 2d 1054; Liberty An­
nex Corp. v. City of Dallas et al., (1926, Tex. Civ. 
App.), 289 S. W. 1067; affirmed City of Dallas et al. v. 
Liberty Annex Corp. (1927, Tex. Comm. App.), 295
S. W. 591; City of Dallas et al. v. Liberty Annex. 
Corp. (1929, Tex. Civ. App.), 19 S. W, 2d 845.

The Supreme Court of North Carolina declared 
municipal restrictions upon use and occupancy of 
property on account of racial status to be beyond the 
reach of legitimate police power and held the rights 
of owners of property to be unconstitutionally invaded 
by such a zoning ordinance, although it fairly located 
and apportioned residential districts for members of 
both the white and Negro races. The fact that the un­
constitutional provision is included in a comprehen­
sive zoning ordinance does not render it valid. Clin­
ard v. City of Winston-Salem, supra.

Although they are persuasive, I am not bound by the 
decisions of the several Southern states that have 
passed upon this question. But it is my duty to follow 
the three decisions of the Supreme Court of the United 
States conclusively holding municipal zoning ordin­
ances based on race or color, such as those here in­
volved, unconstitutional and void as being violative 
of the Fourtennth Amendment. As the last two de­
cisions of the Supreme Court were per curiam, with­
out written opinion, it appears, as said by the Su-



263

preme Court of North Carolina, “that the Court has 
purposely refrained from modifying or delimiting its 
decision in the Buchanan Case and has elected to re­
gard it as the final pronouncement on the subject.” 
It is also to be noted that the last two decisions of the 
Supreme Court were rendered after it had upheld a 
general zoning ordinance in the Euclid Case.

Under the decisions it becomes my duty to declare 
each of the three ordinances here involved unconsti­
tutional, as being violative of the Fourteenth Amend­
ment, and to issue an injunction against the further 
enforcement of the same.

This the 16 day of December, 1949.
CLARENCE MULLINS,

United States District Judge.

FINAL JUDGMENT.
Filed: Dec. 16, 1949.

In the District Court of the United States for the 
Southern Division of the Northern District of Ala­
bama.

Mary Means Monk, A. F. Jackson & Pearl Jackson; 
Johnnie Madison & Emily Madison; H. L. Lemon 
& Corine Lemon; T. T. Cole, Jobie Herbert & 
Louis Drake; H. W. McElrath; P. E. Evans; 
Ulysses Terry and Booker T. Washington Insur­
ance Company, a corporation; Warren Billings & 
Lucy C. Billings, Plaintiffs,

vs. Civil Action No. 6382 
City Of Birmingham, a Municipal Corporation, Jam es 

W. Morgan and H. E. Hagood, Defendants.
This cause having came on for hearing by the Court 

without a jury, and the same having been heard on



264

oral testimony, exhibits, and stipulations of counsel 
for all parties, and having been argued by counsel 
and submitted to the Court; and the Court having con­
sidered the same, and having this day rendered and 
filed with the Clerk an opinion containing a finding of 
facts and conclusions of law:

It is, therefore, Ordered, Adjudged and Decreed 
as follows:

1. That the Booker T. Washington Insurance Com­
pany, a corporation, by agreement of the parties and 
for good cause shown, be and the same is hereby 
stricken as a party plaintiff in this action.

2. That the defendants’ motion to dismiss the ac­
tion be and the same is hereby overruled and denied.

3. That Sections 1604 and 1605 of the General City 
Code of the defendant City of Birmingham, and Or­
dinance No. 709-F of said City, adopted on the 9th day 
of August, 1949, are in contravention and violation of 
the Constitution of the United States and are null and 
void.

4. That the defendant, the City of Birmingham, its 
City Commissioners, officers, agents, servants and 
employees, and all other persons connected therewith, 
be and they are hereby permanently enjoined and re­
strained from directly or indirectly enforcing or a t­
tempting to enforce or attempting to do any other act 
under color of Sections 1604 and 1605 of the General 
City Code of the City of Birmingham, or Ordinance 
No. 709-F of said City, adopted on the 9th day of Aug­
ust, 1949, or any other similar ordinance or ordinances



265

establishing or maintaining restrictions as to resi­
dential occupancy based on race or color.

5. That the costs incurred in this action be and the 
same are hereby taxed against the defendant, the City 
of Birmingham, for which execution may issue.

Done this 16 day of December, 1949.
CLARENCE MULLINS,

United States District Judge.

SUPPLEMENTAL OPINION.

Filed: Dec. 17, 1949.

(Title Omitted.)

The defendants in this case sought to establish (1) 
that there is considerable friction between the races 
in Birmingham, especially in that area in which the 
plaintiffs’ properties are situated; (2) that the life, 
property, comfort and convenience of all the citizens 
of Birmingham are affected by that condition; (3) 
that the governing body of the City of Birmingham 
believes that the zoning ordinances here attacked con­
stitute one of the most practicable ways of solving 
this problem; and (4) that nullification of such zon­
ing ordinances would materially and adversely affect 
residential property values and impair the financial 
ability of the City to render necessary municipal ser­
vices. Because these contentions, both factual and 
doctrinal, were not considered m aterial to the issue



266

of constitutionality of such ordinances, they were not 
elaborated upon in the Court’s original opinion.

This the 19th day of December, 1949.
CLARENCE MULLINS,

United States District Judge.

ORDER EXTENDING TIME OF APPEAL TO CIR­
CUIT COURT OF APPEALS.

Filed January 17, 1950.

In the United States District Court for the Northern 
District of Alabama, Southern Division.

Mary Means, et ah, Plaintiffs,
vs. Civil Action No. 6382 

City Of Birmingham, a municipal corporation, Jam es 
W. Morgan, and H. E. Hagood, Defendants.

In this cause the defendants by a timely motion 
moved the Court for an additional finding of fact, 
which motion was in affect overruled in the suplemen- 
tal opinion filed in this cause on the 19th day of De­
cember, 1949 and it appearing that the failure of the 
defendants to learn of the entry of that order until 
December 21, 1949 was exclusable. It is ordered that 
the time for appeal in this cause be and the same is 
hereby extended to January 21, 1950, as provided in 
Rule 73.

This the 17th day of January, 1950.
CLARENCE MULLINS,

United States District Judge.



267

NOTICE OF APPEAL.

Filed January 17, 1950.

In the United States District Court for the Northern 
District of Alabama, Southern Division.

Mary Means Monk, et ah, Plaintiffs,
vs. Civil Action No. 6382 

City of Birmingham, a municipal corporation, Jam es 
W. Morgan, and H. E. Hagood, Defendants.

Notice Of Appeal To Circuit Court Of Appeals Under 
Rule 73-B:

Notice is hereby given that the City of Birmingham, 
a municipal corporation, Jam es W. Morgan and H. E. 
Hagood, defendants above named, separately and sev­
erally, hereby appeal to the Circuit Court of Appeals 
from the Fifth Circuit from the final judgment en­
tered in this action on the 16th day of December, 
1949.

HORACE C. WILKINSON, 
Attorney for Appellants, City 

of Birmingham, Jam es W. 
Morgan, H. E. Hagood.

Address: Farley Building, 
Birmingham, Alabama.



268

ASSIGNMENTS OF ERROR.

Filed January 17, 1950.

(Title Omitted.)

The appellants, separately and severally, assign 
each of the following, separately and severally:

First Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Commis­
sioner Morgan:

“Q. In your opinion, I wish you would tell the 
Court whether or not the zoning ordinance as drafted 
approved and enforced and applied and construed 
and administered has been conducive to public peace 
and order.”

Second Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that the zoning ordinances had been conduc­
tive to public peace and order.

Third Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Com­
missioner Morgan:

“Q- Mr. Morgan, if the custom that has been ob­
served here with respect to the residential sections,



269

white and colored, by both races since you have been 
on the Commission is upset or overturned, what in 
your judgment will be the effect on property values, 
residential property values in the City of Birming­
ham .”

Fourth Assignment of Error.

The Court erred in sustaining the plaintiffs’ ob­
jection to the following question propounded to Com­
missioner Morgan:

”Q. I would be glad if you would state to the Court 
what in your judgment and opinion as a member of 
the Commission of the City of Birmingham would be the 
result on the City finances and it s ability to render muni­
cipal services such as fire, police, health, street improve­
ments education, and matters of that kind, if a substantial 
decrease in municipal revenue is brought about by a 
disregard of the custom that has prevailed for 12 
years with respect to the residential zoning?”

Fifth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that it would impair the City’s ability to the 
extent that it would probably not be able to render 
those essential services to the extent required and 
necessary and essential for the comfort and conveni­
ence of the citizens.

Sixth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that in the immediate territory of plaintiff’s



270

lots six bombings had occurred within the last few 
months as a result of the attempt of the negroes to 
invade that territory.

Seventh Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Mr. E. A. 
Camp, Jr.:

“Q. What is the policy of the Liberty National Life 
Insurance Company with reference to making loans 
on white and colored residential property?”

Eighth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that the policy of the Liberty National and 
other life insurance companies is that they loan on 
white residential property where it is zoned white and 
loan on colored residential property where it is zoned 
colored and that they do not loan on property that is 
in a mixed zone or in a twilight zone or in the path of 
being changed from one classification to the other and 
that stabilized conditions is one of the main factors 
taken into consideration in making loans on property.

Ninth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that the building and loan associations, the 
mortgage companies, trust companies, banks and 
other financial people have followed that same policy 
in Birmingham and elsewhere for many years.



271

Tenth Assignment of Error.

The Court erred in sustaining the plaintiff’s objec­
tion to the following question propounded to Mr. E. A. 
Camp, J r .:”

“Q. Mr. Camp, in your opinion, I wish you would 
tell the the Court what effect the inbasion of a white 
residential zone by negro citizens has on the ap­
praised value and fair market value of property in 
Birmingham?”

Eleventh Assignment of Error.

The Court erred in refusing to allow the appellants 
to introduce in evidence Exhibit 16 which document 
gives certain facts and figures about the City of Birm­
ingham in 1946.

Twelfth Assignment of Error.

The Court erred in sustaining the plaintiffs' objec­
tion to the introduction of Exhibit No. 17 entitled “The 
1948 Municipal Tax Dollar, Condensed Statistical and 
Operational D ata.”

Thirteenth Assignment of Error.

The Court erred in sustaining the plaintiffs’ ob­
jection to the following question propounded to Presi­
dent Green:

“Q. I will ask you to tell his Honor what in your 
opinion would be the result of upsetting the custom 
that was translated into the zoning laws by the ordin-



272

ance, zoning ordinance in 1926, with respect to white and 
colored areas in the Graymont section?”

Fourteenth Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Presi­
dent Green:

“Q. Mr. Green, I will ask you whether or not in 
your opinion there is a clear and present grave dan­
ger of jeopardy to life and property if the white sec­
tion out there that we have been talking about is in­
vaded by negroes.”

Fifteenth Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Presi­
dent Green:

“Q. Mr. Green, in your opinion does the City Com­
mission of the City of Birmingham or the State of 
Alabama, both of them combined, have enough police 
force to prevent race riots, violence and damage to 
property if the invasion of white sections by negroes 
become general in Birmingham?”

Sixteenth Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question porpounded to Mr. A. Key 
Foster:



273

“Q. Was that fact taken into consideration in mak­
ing mortgage loans and appraising property?”

Seventeenth Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Mr. A. 
Key Foster:

“Q. I will ask you, Mr. Foster, if property is in the
path of a contemplated change from white to colored 
classification, or from colored to white classification, 
if that is a factor that is taken into consideration in 
the appraisal of property?”

Eighteenth Assignment of Error.

The Court erred in ruling that the elements that 
enter into the appraisal of property for the purpose 
of making mortgage loans was imm aterial in the is­
suance of the case.

Nineteenth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show all of the elements that enter into a property 
appraisal of property by a man experienced in that 
line of business for the purpose of showing just how 
they do arrive at values. That the location and sta­
bility of classification is highly important.



274

Twentieth Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Mr. V. 
L. Adams:

“Q. I will ask you if in your opinion and judgment, 
if there is a clear and present grave danger to public 
peace and order, and to property values out there if 
the white section that is in force here is invaded by 
the negroes?”

Twenty-First Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that there was such clear, present and grave 
danger to the public peace and order and to property 
values.

Twenty-Second Assignment of Error.

The Court erred in sustaining the plaintiffs’ ob­
jection to the following question propounded to Mr. 
Walter E. Henley.

‘‘Q. I will ask you whether or not, if the restric­
tions in the zoning of Birmingham are removed from 
that territory and from residential property in Birm­
ingham in general with respect to the areas that are 
classified white residential and colored residential, 
and the difference between them is blotted out or ig­
nored or disregarded, whether or not as a matter of 
fact property values in the residential areas would 
decrease?”



275

Twenty-Third Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Mr. Wal­
ter E. Henley:

“Q. Mr. Henley, I will ask you whether or not 
you know whether or not there is anything speculative 
about the effect upon property values, residential 
values in Birmingham if the provisions of the zon­
ing law are no longer applicable and enforceable—”

Twenty-Fourth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that out of the vast number of contacts that 
he has had with members of the negro race that they 
have been outspoken in their approval of residential 
segregation, and outspoken in their recognition of its 
value to their race as well as to the white race.

Twenty-Fifth Assignment of Error.

The Court erred in sustaining the plaintiffs’ ob­
jection to the following question propounded to Mr. 
Walter E. Henley:

"Q. Mr. Henley, I would like to ask you whether 
or not in view of your long residence and experi­
ence in Birmingham you know of any better way for 
society in Birmingham to protect itself against the 
result of the feeling of race hostility that has been 
manifested here than by the zoning laws of the City 
which we claim were in force and effect?”



276

Twenty-Sixth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show a portion of the transcript of the proceedings 
of a negro mass meeting in Birmingham on August 
17, 1949 in which the nature and extent of the violence 
in the Smithfield area was described.

Twenty-Seventh Assignment of Error.

The Court erred in sustaining the plaintiffs’ objec­
tion to the following question propounded to Com­
missioner Connor:

“Q. I will ask you as an experience legislator and as 
an experience member of the City Commission, 
whether or not you know of any better way of the 
City of Birmingham protecting its citizens against 
the consequences arising from the feeling of race hos­
tility than the present zoning ordinance of the City 
of Birmingham?”

Twenty-Eighth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show the number of bombings and other disorders 
in the Graymont-College Hills area that have oc­
curred since the controversy arose.

Twenty-Ninth Assignment of Error.

The Court erred in refusing to allow the appellants 
to show that grave disorder and damage to property 
and jeopardy to life and limb would result if the



277

white section in the Graymont area is invaded by 
negroes.

Thirtieth Assignment of Error.
The Court erred in rendering the final judgment 

that was rendered in this cause.
I hereby certify that I have this day mailed a copy 

of the foregoing to Arthur Shores, Atty. for Appellees, 
postage paid to his post office address in Birming­
ham, Ala.

This 17th day of Jan. 1950.
HORACE C. WILKINSON, 

Attorney for appellants.

STIPULATION AS TO TRANSFER OF ORIGINAL
EXHIBITS.

Filed January 17, 1950.
(Title Omitted.)

It is stipulated between the parties herein that De­
fendants’ original Exhibts numbered 1 and 2, intro­
duced on the trial of this cause, may be transmitted 
to the Court of Appeals in lieu of the reproduction of 
the said Exhibits as a part of the printed record on 
appeal. Said Exhibits are maps of the City of Birm­
ingham and the area or district involved in this cause. 
Said Exhibits shall be transmitted by the Clerk of 
this Court to the said Circuit Court of Appeals for the 
Fifth Circuit with the record on appeal in this cause, 
and when the appeals in this cause has been heard 
and determined, said Exhibits shall be returned to the



278

Clerk of this Court by the Clerk of the Circuit Court 
of Appeals, Fifth Circuit.

HORACE C. WILKINSON, 
Attorney for Defendants— 

Appellants.
ARTHUR D. SHORES, 

Attorney for Plaintiffs-Appel- 
lees.

Approved: This January 17, 1950.
CLARENCE MULLINS, 

District Judge.

DESIGNATION OF CONTENTS OF RECORD.
Filed January 17, 1950.

(Title Omitted.)
Now come the appellants, separately and severally, 

in the above styled cause and in accordance with 
Rule 75-A of the Rules of Civil Procedure designate 
the complete record and all the proceedings and evi­
dence in this action, except Defendants’ Exhibits 1 
and 2, which may be transmitted to the Court of Ap­
peals in lieu of the reproduction of the said Exhibits 
as a part of the printed record on appeal.

HORACE C. WILKINSON, 
Special Counsel for the City 

of Birmingham and at­
torney for the Appellants.

I hereby certify that I have served a copy of the 
foregoing on Arthur Shores, Attorney for Plaintiffs, 
prior to filing same in this Court.

HORACE C. WILKINSON, 
Attorney for defendants.



279

CLERK’S CERTIFICATE.

United States of America,
Northern District of Alabama.

I, CHAS. B. CROW, Clerk of the United States Dis­
trict Court for the Northern District of Alabama, 
Southern Division, do hereby certify that the fore­
going pages numbered from one (1) to Two Hundred 
Eighty-Three (283), both inclusive, is a full, true, and 
correst transcript of the record on appeal in the m at­
ter of City of Birmingham, a Municipal Corporation, 
Jam es W. Morgan and H. E. Hagood, Appellants, » 
vs. Mary Means, Monk et al., Appellees, as fully as the 
same appears of record and on file in my office.

In witness, whereof, I have hereunto subscribed 
my name and affixed the seal of said Court, at Birm­
ingham, in said District, on this 8th day of March, 
1950.

CHAS. B. CROW,
(Chas. B. Crow,)

(Seal) Clerk, U. S. District Court
Northern District of
Alabama.



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