Bailey v. Patterson Reply to Appellees' Motions to Dismiss or to Affirm

    I n  t h e

(&mvt of tht lotted BtntiB
October Term, 1961 

No. 643

Samuel Bailey, et al.,

— v .—

J oe T. P atterson, et al.,

Appellants,

Appellees.

REPLY TO APPELLEES’ MOTIONS TO 
DISMISS OR TO AFFIRM

Constance Baker Motley 
J ack Greenberg 
J ames M. Nabrit, III 
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, N. Y.

R. J ess Brown

11051/2 Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants

Michael Meltsner 
Of Counsel



I N D E X

PAGE

I. Motion to dismiss or affirm filed by the City of 
Jackson, Mississippi, its Mayor, Commissioners, 
Chief of Police, and by the Attorney General of
Mississippi ..............................................    1

A. Appellants’ Claims Are Justiciable .................  1

B. The Order Below Is Appealable ..................... 10
C. The United States District Court From Which

This Appeal Was Taken Had Jurisdiction of 
This Cause Under 28 U.S.C. §2281 ................. 12

II. Motion of Greyhound Corporation and Continental 
Southern Lines to dismiss and/or affirm ....... . 16

Conclusion.................      18

T able oe Cases

Alabama Public Service Commission v. Southern Rail­
way, 341 U.S. 341 .......... ..........................................  12

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) .... 8
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) .... 8
Boynton v. Virginia, 364 U.S. 454 ____ _________ 5,16
Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala, 1956),

affirmed, 352 U.S. 903 ...................... .......... .......... . 5, 7
Bryan v. Austin, 148 F. Supp. 563 (E.D. S.C. 1957)

app. dism. as moot, 354 U.S. 933 ....... ....................  10
Burford v. Sun Oil Co., 319 U.S. 315............................  12



ii

PAGE

Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188 .... 10
Evers v. Dwyer, 358 U.S. 202 ...................................  7,8
Ex parte Bransford, 310 U.S. 354 ............................  15

Flemming v. South Carolina Electric and Gas Co.,
224 F. 2d 752 (5th Cir. 1955), appeal dismissed, 351 
U.S. 901 .....................................................................  5

Garner v. Louisiana, 7 L. ed. 2d 207 ............................  6, 9
Government & Civic Employees Organizing Comm.,

CIO v. Windsor, 353 U.S. 364 ................................ 10

Harrison v. NAACP, 360 U.S. 167 ........................... 10
Henderson v. United States, 339 U.S. 816 ...... ........... 5,16
Herkness v. Irion, 278 U.S. 92 ......... ................... ......  14

Keys v. Carolina Coach Co., 164 M.C.C. 769 (1955) ..5,16

Lewis v. Greyhound Corp. (M.D. Ala., C.A. No. 1724-n, 
November 1, 1961, not yet reported) ........................  6

Meredith v. Fair, 30 U.S. Law W. 2347 ........... ............. 2
Mitchell v. United States, 313 U.S. 80 ........................5,16
Morgan v. Virginia, 328 U.S. 373 ........................... 5,16

NAACP v. Bennett, 360 U.S. 471 ........................... . 10
NAACP v. St. Louis-San Francisco By., 297 ICC 335 

(1955) .............................. ........................................... 5

Poe v. Ullman, 6 L. ed. 2d 989 ...................................  8

Query v. United States, 316 U.S. 486 ........................  14

Radio Corporation of America v. United States, 95 
F. Supp. 660 (N.D. 111.), affirmed 341 U.S. 412 ......  12



Ill

PAGE

Romero v. Weakley, 226 F. 2d 399 (C.A. 9), reversing
131 F. Supp. 818 (S.D. Cal.) ........... ........................  11

Sterling v. Constantin, 278 U.S. 378 ............................. 16

Thompson v. City of Louisville, 362 U.S. 199........... . 6, 9

United States v. Parke, Davis & Co., 362 U.S. 29 .... 16 
United States v. W. T. Grant Co., 345 U.S. 629 ....... 17

Walling v. Helmerich & Payne, Inc., 323 U.S. 37 ..... 17

Statutes and Other A uthorities

28 U.S.C. §1253 ......................... .................... ..... ........  12
28 U.S.C. §2281 .............. .......... ...............  i 4
28 U.S.C. §2284 .................................................. .....12 13

17 Miss. Code Ann., §4065.3 ...... .............. ..................2, 9,15
Interstate Commerce Commission, Docket No. NC-C- 

3358 (Sept. 22, 1961) ...........................

Judicial Abstention From the Exercise of Federal 
Jurisdiction, 59 Col. L. Rev. 749 11



I n  t h e

QJmtrt nt %  States
October Term, 1961 

No. 643

Samuel Bailey, et al.,

— v .—
Appellants,

J oe T. P attekson, et al.,
Appellees.

REPLY TO APPELLEES’ MOTIONS TO 
DISMISS OR TO AFFIRM

Appellants have received Motions to Dismiss or Affirm, 
filed by appellees, City of Jackson, Mississippi, its Mayor, 
Commissioners and Chief of Police, by appellees Greyhound 
Corporation and Continental Southern Lines, Inc., and by 
appellee Attorney General of Mississippi. Appellants here­
in reply to these Motions reserving the right to file further 
replies to any other Motion to Dismiss or Affirm which may 
be filed by any of the other parties hereto.*

I.

Motion to dismiss or affirm filed by the City of Jack- 
son, Mississippi, its Mayor, Commissioners, Chief of 
Police, and by the Attorney General of Mississippi.

A. Appellants’ Claims Are Justiciable

The essence of the motion by appellee city and its officials 
consists of the position, utterly unsupported in the record,

* Time to file Motion to Dismiss or Affirm has expired.



2

that Jackson, Mississippi is not enforcing segregation in 
intrastate and interstate travel or appurtenant terminal 
facilities. If it were necessary, the Court could rely solely 
on the notorious fact that Mississippi and all of its subdivi­
sions are obedient to the precept of 17 Miss. Code Ann. 
§4065.3 which exhorts “The entire executive branch of the 
government of the State of Mississippi, and of its subdivi­
sions, and all persons responsible thereto, including the 
governor . . . mayor . . . chiefs of Police, policemen . . .  to 
prohibit by any lawful, peaceful and constitutional means, 
the causing of a mixing or integration of the white and 
Negro races in . . . public waiting rooms, . . . ” This provi­
sion further incorporates by reference the massive, perva­
sive “Resolution of Interposition” which purports to negate 
federal prohibitions against state enforcement of racial seg­
regation. Notice of the policy of the State of Mississippi in 
connection with its University was recently taken by the 
Fifth Circuit in Meredith v. Fair, 30 U.S. Law W. 2347- 
2348:

This case was tried below and argued here in the 
eerie atmosphere of never-never land. Counsel for 
[University] argue that there is no state policy of 
maintaining segregated institutions of higher learn­
ing and that the court can take no judicial notice of this 
plain fact known to everyone.

We take judicial notice that the state of Mississippi 
maintains a policy of segregation in its schools and 
colleges.

But this Court need not rely on judicial notice alone. The 
record thoroughly substantiates appellants’ contention that 
Mississippi and the City of Jackson enforce racial segrega­
tion in interstate and intrastate travel facilities, in waiting 
rooms, in connection with rail, bus, and air transportation, 
against local residents and out of state travelers, against



3

“freedom riders” and ordinary travelers. Moreover, segre­
gation is enforced in obedience to statutes of the state re­
quiring segregation, and an ordinance of the city requiring 
segregation, and, in apparent effort to escape federal in­
terdiction, pursuant to breach of the peace laws. The en­
forcement, and immediate threat inflicted by Mississippi 
in all these ways leaps to the eye, not only through express 
evidence inscribed in the record, but by means of the 
tenacious and evasive posture of Mississippi officials and 
officers of the City of Jackson who seek somehow to per­
petuate segregation through taking the position that they 
are not enforcing it.

At the close of the trial in the court below counsel for 
Jackson City Lines, the local bus company, addressed the 
Court with a plea that it enter an injunction so that Jack- 
son City Lines could cease segregating under compulsion 
of statutes and ordinances without subjecting itself to the 
penalties of these duly enacted requirements that racial 
segregation be maintained.

We are purely a local company operating only in the 
City of Jackson. The same identical statute that re­
quired the railroad and the bus companies to put up a 
sign, in another part of the same section requires us 
to do that exactly which we are doing. The city 
ordinance is an exact copy of the state law, which re­
quired us to do that which we are doing. I want to 
make this statement now because I think that the re­
sponsibility for what may happen should be shifted to 
some extent from my shoulders. The Illinois Central 
Railroad and both the bus lines have, according to the 
testimony here—and I have every reason to believe 
every word of it—ceased to make any effort to enforce 
any of these statutes except to have the signs there 
which they have no control of. I have the signs in



4

buses, and those drivers are instructed just as this 
driver told you, because I am the man that wrote the 
instructions to park the buses in the event someone 
fails to operate on the basis of those signs. . . .  If you 
would tell me this afternoon that in your opinion those 
statutes are unconstitutional, I would take the signs 
out of my buses and tell my buses to operate like the 
railroads and the other two bus companies.

# * #
I don’t think any injunction should issue against me, 
but I need some relief because if I go pull the signs out 
of the buses, I am pulling them out in the face of the 
statute and an ordinance created by my own rate­
making body, and I am in trouble either way I go 
(R. 696-698).

Yet the City of Jackson which insists that segregation 
is not being enforced, through its attorney opposed this 
request of the bus company that it be enjoined from segre­
gating :

I certainly would like to be heard before you act on any 
such suggestion as made to the Court. On behalf of 
the City of Jackson, I strenuously object to any injunc­
tion issuing in this case__ (R. 697).

And the State of Mississippi through its counsel also 
urged:

We too oppose any issuance of any injunction in this 
case.. . .  (R. 698).

The appellants in this case had protested the segregation 
here enforced years ago. Yet, a local Jackson official of 
another one of the carriers (Greyhound) wrote to its presi­
dent that it too was coerced by state law:



5

I will say this, if the N.A.A.C.P. does start using the 
waiting rooms at any Terminal in Jackson, Mississippi 
there will be plenty of trouble, because the police de­
partment has the backing of the City Officials and it 
appears they will go all the way to keep the races 
segregated in Mississippi (E. 204; Plaintiffs’ Exh. 
No. 6).

And counsel for Greyhound in its Motion to Dismiss or 
Affirm recently filed with this Court, stated on p. 4 that:

The testimony is without dispute that the signs were 
placed over the entrance doors at the two terminal 
buildings pursuant to the provisions of Chapter 258, 
Laws of 1956, Mississippi Legislature, Regular Session. 
Violation of these statutes requiring the posting of 
these signs and the corresponding City of Jackson 
ordinance carries a severe penalty.

The letter quoted above was written before such a thing 
as freedom riders existed. Indeed, appellants respectfully 
suggested that “freedom riders” probably never would 
have come into existence if Mississippi and appellee car­
riers had been obedient to long-established requirements 
of federal law. See Mitchell v. United States, 313 U.S. 80 
(1941); Morgan v. Virginia, 328 U.S. 373 (1946); Hender­
son v. United States, 339 U.S. 816 (1950); NAACP v. St. 
Louis-San Francisco Ry., 297 ICC 335 (1955); Keys v. 
Carolina Coach Co., 164 M.C.C. 769 (1955); Flemming v. 
South Carolina Electric and Gas Co., 224 F. 2d 752 (5th 
Cir. 1955), appeal dismissed, 351 U.S. 901; Browder v. 
Gayle, 142 F. Supp. 707 (M.D. Ala. 1956), affirmed, 352 
U.S. 903 (1956) ; Boynton v. Virginia, 364 U.S. 454 (1960).

The suggestion that this suit arises from capricious, 
arbitrary activities of “freedom riders” belies the record.



6

Appellant Bailey in this case testified concerning the ar­
rest of a co-worker seated next to him on a Jackson City 
bus. This co-worker obviously was not and, it is not alleged 
that he was, a freedom rider (R. 250). Moreover, other 
arrests of local residents occurred on Jackson City buses. 
They also were merely local travelers, not freedom riders 
(R. 342, 347, 353). Long before anyone ever heard of 
freedom riders, the witness Evers was required to be seg­
regated in the local air terminal (R. 312-315). And see 
all of the other testimony of arrests and prosecutions and 
other intimidation by state officials in Mississippi of per­
sons who with one exception, could not be characterized 
as freedom riders. (Jurisdictional Statement of Appel­
lants, pp. 16-18.) Beyond this, the so-called freedom riders 
were obviously not guilty of any crime and were unconsti­
tutionally deprived of their federal constitutional rights. 
See appellants’ Exhibit Nos. 32, 33, 34 and 35 (R. 532, 536, 
541-542, 544). Garner v. Louisiana, 7 L. ed. 2d 207; Thomp­
son v. City of Louisville, 362 U.S. 199; Lewis v. Greyhound 
Corp. (M.D. Ala., C.A. No. 1724-n, November 1, 1961, not 
yet reported).

It is quite untrue, as appellees City of Jackson and its 
officials urge, that:

The gist of Appellants’ action is now and has always 
been an effort to stop the State Court prosecutions 
of the self-styled Freedom Riders. This necessarily 
resolves itself into purely factual issues as to whether 
the various persons arrested were or were not guilty 
of a breach of the peace which justified the arrests. 
None of them was arrested under the segregation stat­
utes attacked in the case (Exhibits 32, 33, 34 & 35). 
(Motion of City to Dismiss or Affirm, p. 10.)

This case involves local residents and out of state travelers 
too, who have long been subjected to denial of constitu-



7

tional rights on all of the common carriers, air, rail and 
bus, local and interstate, in the City of Jackson and else­
where in Mississippi. While other citizens of the United 
States who have protested this unconstitutional deprivation 
of rights are members of this class seeking the benefit of 
the decree in this cause, the complaint and prayer go far 
beyond the “freedom riders” who are, appellants submit, 
a by-product of the Mississippi policy proclaimed in 17 
Miss. Code Ann. §4065.3 and the Mississippi Statutes, ex­
tracts from which occupy pages 7-11 of the appellants’ 
Jurisdictional Statement.

It is, therefore, frivolous to suggest, as appellees do 
on page 16 of the Motion to Dismiss or Affirm, that “Ap­
pellants have no standing to litigate the constitutional is­
sues presented because of the non-justiciability of Appel­
lants’ claims.” As this Court held in Evers v. Divyer, 358 
U.S.202:

We do not believe that appellant, in order to demon­
strate the existence of an “actual controversy” over 
the validity of the statute here challenged, was bound 
to continue to ride the Memphis buses at the risk of 
arrest if he refused to seat himself in the space in 
such vehicles assigned to colored passengers. A resi­
dent of a municipality who cannot use transportation 
facilities therein without being subjected by statute to 
special disabilities necessarily has, we think, a substan­
tial, immediate, and real interest in the validity of the 
statute which imposes the disability. See Gayle v. 
Browder, 352 US 903; 1 L ed 2d 114, 77 S Ct 145, 
affirming the decision of a three-judge District Court 
(Ala) reported at 142 F Supp 707.

Moreover, these statutes are not only being enforced 
through the arrest and prosecution of Negroes with suffi­
cient temerity to challenge segregation, but through signs



8

which direct the races to different waiting rooms, signed 
“By order of Police Department” (R. 218, 259, 277). Also, 
there is the posting of signs by the various carriers obedi­
ent to state law. As the Court of Appeals for the Fifth 
Circuit held in Baldwin v. Morgan, 287 F. 2d 750, 755 (5th 
Cir. 1961), “when in the execution of that public function 
[a carrier] is the instrument by which state policy is to 
be and is effectuated, activity which might otherwise be 
termed private may become state action within the Four­
teenth Amendment.” Police posting of racial signs outside 
of the terminals in question is far more state action than 
occurred in Baldwin v. Morgan, supra, where “the state 
[did] not physically post the signs, but it [did] so just 
as effectively through the instrument of the Terminal.” 
287 F. 2d at 755. Indeed, in Baldwin, the Court of Appeals 
found “The very act of posting and maintaining separate 
facilities when done by the Terminal as commanded by 
these state orders is action by the state.” 287 F. 2d at 755. 
Not only terminals, but carriers as well posted signs in 
Jackson.

The abstract quotations from cross-examination in the 
City of Jackson’s Motion to Dismiss or Affirm which 
appear on page 16 of said Motion are meaningless when 
taken out of context. The obvious full meaning of the wit­
ness’ testimony was that they sought to avoid the harass­
ment, obloquy and hardship which experience told inev­
itably would follow should they make an effort to ride in 
a nonsegregated manner. The Constitution does not re­
quire that one subject himself to arrest when it is known 
that arrest inevitably will follow in order to file an action 
in the FTnited States court to secure one’s constitutional 
rights. Evers v. Dwyer, 358 U.S. 202; Baldwin v. Morgan, 
251 F. 2d 780 (5th Cir. 1958).

Appellees, City of Jackson, do not rely properly on this 
Court’s decision in Poe v. Ullman, 6 L. ed. 2d 989, 996, for



9

in that case, as the opinion of Mr. Justice Frankfurter 
stated, the suit was not brought by “one who [was] him­
self immediately harmed or immediately threatened with 
harm by the challenged action.” See Motion of City of 
Jackson, p. 19. The multitudinous arrests occurring over 
a long period of time in every variety of facility, the intri­
cate network of statutes and the ordinance requiring segre­
gation, the refusal of the Attorney General of Mississippi to 
acknowledge the unconstitutionality of state segregation 
laws (E. 527) and his avowal, when asked whether and 
under what circumstances he would enforce these laws, 
that “If conditions should arise to such a point that I 
thought it was necessary to bring them into effect, yes.” 
(R. 515), demonstrates that Mississippi presently continues 
as it always has, to enforce segregation in every aspect of 
state life, including local and interstate travel.1 The two- 
step operation of prosecuting for breach of the peace, 
rather than for failure to segregate per se, does not at 
all vitiate the monolithic state policy declared in 17 Miss. 
Code Ann. §4065.3. In fact, petitioners respectfully sub­
mit, it is difficult, if not impossible, to conceive of a case 
in which enforcement of a state policy at all points is more 
immediate a threat to one who seeks to enjoy constitu­
tional rights.

So far as “freedom riders” are concerned, the continued 
daily prosecution of citizens from outside the state, who 
on the detailed evidence of this record, are being convicted 
in the Mississippi courts for what under Thompson v. City 
of Louisville, 362 U.S. 199 and Garner v. Louisiana, 30 U.S. 
L. Week 4070, is obviously not a crime, in violation of

1 Q. Have you [the Attorney General] ever made any public 
announcement to the effect that these laws referred to in the 
Complaint would not be enforced?

* * #
A. Certainly not (R. 527).



10

Fourteenth Amendment rights, is a daily advertisement by 
Mississippi to everyone that it intends to continue enforc­
ing racial segregation in travel.

The threat is real, it is immediate, and appellants have 
no relief but by judicial enforcement of long established 
constitutional rights.

B. The O rder Below Is Appealable

Appellants submit that in the jurisdictional statement 
they adequately set forth reasons why the order below is 
appealable and that appellees, City of Jackson and its 
officials, have not in any wise distinguished the cases cited 
(Bryan v. Austin, 148 F.Supp. 563 (E.D.S.C. 1957), app. 
dism. as moot, 354 U.S. 933 (1957); Government <& Civic 
Employees Organizing Comm., CIO v. Windsor, 353 U.S. 
364 (1957), per curiam; NAACP v. Bennett, 360 U.S. 471 
va’g automatic remand to state court for consideration in 
light of Harrison v. NAACP, 360 U.S. 167), except, essen­
tially, to suggest that the question of appealability “was 
[not] raised or decided” in said cases (Motion to Dismiss 
or Affirm, p. 9). Appellants submit, however, that this 
consistent course of decision coupled with the policy of 
the jurisdictional statutes involved clearly supports appeal- 
ability. It is the substance of the order rather than the 
terminology to which the statutes look. As this Court said 
in Ettelson v. Metropolitan Life Ins. Co., 317 U.S. 188, 
191-192:

As in the Enelow case [293 U.S. 379] so here, the 
result of the District Judge’s order is the postpone­
ment of trial of the jury action based upon the policies; 
and it may, in practical effect, terminate that action. 
It is as effective in these respects as an injunction 
issued by a chancellor. If the order be found to be 
erroneous, it will have to be set aside and the plaintiffs



11

permitted to pursue their action to judgment. The 
plaintiffs are, therefore, in the present instance, in no 
different position than if a state equity court had 
restrained them from proceeding in the law action. 
Nor are they differently circumstanced than was the 
plaintiff in the Endow case. The relief afforded by 
%129 is not restricted to the terminology used. The 
statute looks to the substantial effect of the order 
made.2 [Emphasis added.]

Obviously the substantial effect of the order below was to 
deny a temporary injunction no matter what the order 
was called. Appellants’ motion for preliminary injunction 
was filed June 9, 1961. The hearing was delayed three 
months before a trial was held and oral arguments were 
completed upon the motion. The order of November 17th 
stayed proceedings for a “reasonable,” but nevertheless, 
indefinite length of time. Its practical effect and therefore 
its legal effect has been to deny appellants relief for the 
indefinite future. The order constituted an adjudication 
of the question of preliminary relief. The motion for pre­
liminary injunction is no longer sub judice. Failure to take 
jurisdiction of an appeal under circumstances such as these 
would result in an ad hoc episodic, inconsistent treatment 
of cases which are essentially alike.3 For example, if the

2 See also Romero v. Weakley, 226 F. 2d 399 (O.A. 9), reversing 
131 F. Supp. 818 (S.D. Cal.). There the district court retained 
jurisdiction of the case pending state court proceedings. The court 
of appeals held that the action of the district court was reviewable 
and said (226 F. 2d at 400) : “All the parties also are agreed that 
the decision to refuse to consider the complaints are appealable. 
Apart from the agreement we hold these are appealable decisions.” 
In a footnote to this statement, the court added: “Alternatively, 
appellant sought a writ of mandamus. Our remanding order is, 
in effect, such a writ.”

3 See note, Judicial Abstention From The Exercise of Federal 
Jurisdiction, 59 Colum. L. Rev. 749, 771-776, for a discussion of 
the technique of disposition where the principle of equitable ab­
stention is applied.



12

District Court would choose to dismiss a complaint (which 
it has power to do), see, e.g., Alabama Public Service Com­
mission v. Southern Railway, 341 U.S. 341; Burford v. Sun 
Oil Co., 319 U.S. 315, instead of retaining jurisdiction 
during state court proceedings, its order would be appeal- 
able. But, appellees urge, if it “retains” jurisdiction the 
order is not. Since the two methods of disposition are, in 
effect the same, however, one should not produce conse­
quences different from the other. The treatment suggested 
by appellees would frustrate congressional intent for three- 
judge courts were created to provide a swift method of 
final determination of the constitutionality of state or fed­
eral enactments. See 28 U.S.C. §2284(4); 28 U.S.C. §1253. 
Radio Corporation of America v. United States, 95 F.Supp. 
660 (N.D. 111.), affirmed, 341 U.S. 412.

C. The United States District Court F rom  Which This 
Appeal Was Taken Had Jurisdiction of This Cause 
Under 28 U.S.C. §2281

Appellees advance the argument that this was not prop­
erly a ease for a three-judge federal district court, urging 
that “ [t]he gist of Appellants’ action is now and has always 
been an effort to stop the State Court prosecutions of the 
self-styled Freedom Eiders. This necessarily resolves i t ­
self into purely factual issues as to whether the various 
persons arrested were or were not guilty of a breach of 
the peace which justified the arrests” (Motion to Dismiss 
or Affirm of City, p. 10). This, however, is clearly not the 
case, and a cursory glance at the record indicates that 
appellants have sought to enjoin racial segregation en­
forced by officers of the State of Mississippi under au­
thority of a host of segregation statutes (see Jurisdictional 
Statement, pp. 6-11) and that such injunction has been 
sought on the ground of the unconstitutionality of the 
statutes (as well as, the record indicates, other grounds).



13

The amended complaint herein alleges:
The jurisdiction of this Court is also invoked pur­

suant to provisions of Title 28, United States Code, 
Section 2281 and Section 2284. This is an action to 
enjoin the enforcement of certain statutes of the State 
of Mississippi requiring racial segregation on common 
carriers, and in waiting room and rest room facilities 
utilized by common carriers, and providing criminal 
penalties for carriers and persons refusing to abide 
by such segregation. The statutes sought to be enjoined 
are Title 11, Sections 2351, 2351.5 and 2351.7, and 
Title 28, §§7784, 7785, 7786, 7786-01, 7787, 7787.5, 
Mississippi Code Annotated (1942), and any other 
statute of the State of Mississippi requiring or per­
mitting such segregation (E. 13).

# # #
The segregation complained of herein subjects plain­

tiffs and members of their class to daily public incon­
venience, harassment, embarrassment, and arrest, and 
violates rights secured to plaintiffs and members of 
their class by the due process and equal protection 
clauses of the Fourteenth Amendment to the Federal 
Constitution and Article 1, Section 8, Clause 3 (Com­
merce Clause) of the Federal Constitution and by the 
laws of the United States, Title 49, United States Code, 
§§3(1) and 316(d) (R. 21).

The prayer of the amended complaint seeks injunctive re­
lief against state officers to prevent them from enforcing 
these state statutes requiring segregation on the ground of 
the unconstitutionality of said statutes (R. 21).

It is impossible to see how a complaint so sweeping in 
matters specifically directed against a host of transporta­
tion and waiting room segregation statutes can be narrowly



14

characterized as solely “an effort to stop State Court 
prosecutions of the self-styled Freedom Eiders” by the 
motion to dismiss or affirm (Motion to Dismiss or Affirm, 
p. 10). The complaint falls squarely within the plain lan­
guage of Title 28, §2281:

An interlocutory .. . injunction restraining the enforce­
ment, operation or execution of any State statute by 
restraining the action of any officer of such State in the 
enforcement or execution of such statute . . . , shall 
not be granted by any district court or judge thereof 
upon the ground of the unconstitutionality of such 
statute unless the application therefor is heard and 
determined by a district court of three judges. . . .

Regularly the courts have looked into the complaint to see 
whether a three-judge court should be convened.

As the bill challenged the validity under the Federal 
Constitution of an order of an administrative board of 
the state, the district court had jurisdiction under §266, 
Oklahoma Natural Gas Co. v. Russell, 261 U. S. 290, 67 
L. ed. 659, 43 Sup. Ct. Rep. 353, and this court has 
jurisdiction on direct appeal. Herkness v. Irion, 278 
U.S. 92, 93-94.

And see Query v. United States, 316 U.S. 486, 490:
Here a substantial charge has been made that a state 

statute as applied to the complainants violates the Con­
stitution. Under such circumstances, we have held 
that relief in the form of an injunction can be afforded 
only by a three-judge court pursuant to §266. Stratton 
v. St. Louis S. W. R. Co., 282 US 10, 75 L ed 135, 51 
S Ct 8; Ex parte Bransford, 310 US 354, 361, 84 L ed 
1249, 1253, 60 S Ct 947.



15

Ex parte Bransford, on which Appellees rely, also turns 
on a construction of the complaint. In that case it was 
held that:

It is necessary to distinguish between a petition for 
injunction on the ground of the unconstitutionality of a 
statute as applied, which requires a three-judge court, 
and a petition which seeks an injunction on the ground 
of the unconstitutionality of the result obtained by 
the use of a statute which is not attacked as uncon­
stitutional. The latter petition does not require a 
three-judge court. In such a case the attack is aimed 
at an allegedly erroneous administrative action. Until 
the complainant in the district court attacks the con­
stitutionality of the statute, the case does not require 
the convening of a three-judge court, any more than 
if the complaint did not seek an interlocutory injunc­
tion. 310 U.S. 354, 361.

This hardly is a case, as suggested in Bransford, where 
“a prerequisite such as need for relief against state offi­
cers is lacking. . . . ” 310 U.S. at 361. Nor is it a case where 
the three-judge court statute is inapplicable because the 
action complained of is not directly attributable to the stat­
ute. 310 U.S. at 361. Here there are not only a host of 
segregation statutes, but a general, recently enacted legis­
lative pronouncement, 17 Miss. Code Ann., §4065.3, which 
stridently exhorts state officers, from the highest to the 
lowest, to enforce the racial segregation policies of the 
State. And, even if recourse to the record were appropriate 
to ascertain whether, in view of the complaint and the 
prayer, three judges were required, here is a record re­
plete with examples of enforcement and obedience to an 
unconstitutional set of statutes by carriers and citizens 
under threat of enforcement. See Part 1A, supra. That 
segregation has been enforced in other ways, pursuant to



16

ordinance and so forth, does not rob the three-judge court 
of jurisdiction which reaches to questions cognizable 
by one judge as well as three. Sterling v. Constantin, 278 
U.S. 378.

II.

M otion o f  G reyhound Corporation and C ontinental 
Southern  L ines to d ism iss a n d /o r  affirm.

The essence of the Motion to Dismiss or Affirm by these 
interstate carrier appellees is that they have not enforced 
racial segregation and that they are obedient to the Inter­
state Commerce Commission Order in Docket No. NC-C- 
3358, dated September 22, 1961, effective November 1, 1961 
(Motion to Dismiss or Affirm of Greyhound Corporation 
and Continental Southern Lines, pp. 2, 5). The record, 
however, contains numerous instances of segregation on 
carriers being enforced by agents of the carriers subser­
vient to state law and in combination with persons acting 
under color of law, or individually. See Jurisdictional 
Statement, pp. 16-19. The avowal by these carriers that 
now, following the decisions in Morgan v. Virginia, 328 U.S. 
373; Boynton v. Virginia, 364 U.S. 454 and Keys v. Caro­
lina Coach Co., 64 M.C.C. 769 (1955), the aforesaid Order 
of the Interstate Commerce Commission, as well as the 
decisions of this Court in Mitchell v. United States, 313 
U.S. 80, and Henderson v. United States, 339 U.S. 816, they 
no longer require segregation of passengers or persons 
using their terminals, is hardly a ground for avoiding the 
injunction which appellants seek to obtain against them 
and, therefore, does not render insubstantial the issues 
presented by this appeal.

This Court recently held in United States v. Parke, Davis 
& Co., 362 U.S. 29, 48, that cessation of alleged activity 
does not itself moot a case:



17

The courts have an obligation, once a violation . . .4 
has been established, to protect the public from a con­
tinuation of the harmful and unlawful activities. A 
trial court’s wide discretion in fashioning remedies is 
not to be exercised to deny relief altogether by lightly 
inferring an abandonment of the unlawful activities 
from a cessation which seems timed to anticipate suit. 
See United States v. Oregon State Medical Soc., 343 
U.S. 326, 333, 96 L. ed. 978, 72 S. Ct, 690.

This long has been the law. See Walling v. Helmerich S  
Payne, Inc., 323 U.S. 37 where following suit to enjoin 
violation of the Fair Labor Standards Act the employer 
voluntarily discontinued use of contracts which were the 
subject of the suit. The cause was held to be justiciable. 
Similarly, in United States v. W. T. Grant Co., 345 U.S. 629, 
where there was a disclaimer of intention to repeat prac­
tices against which an injunction was sought the case was 
held not moot. Of course, as suggested in the W. T. Grant 
case, “ [t]he case may nevertheless be moot if defendant 
can demonstrate that ‘there is no reasonable expectation 
that the wrong will be repeated.’ ” But, as stated there, 
“the burden is a heavy one.” 345 U.S. 629, 633.

It might theoretically be established on some other rec­
ord that these interstate carriers and their drivers and the 
managers of their terminals will not, in the future, direct 
Negroes and whites to separate parts of vehicles and ter­
minals. But, a history over a period of years of repeated 
violations in the face of clear federal law does not instill 
confidence that at this juncture these appellees have be­
come obedient to the Constitution and the Interstate Com­
merce Act. If they have, an injunction can do them no

4 The excised language refers to the antitrust laws, but, of course, 
is generally applicable.



18

harm. If they have not, appellants obviously need pro­
tection of the decree they have prayed for.

CONCLUSION

W herefore, for the foregoing reasons, the appellants 
respectfully submit that this Court has jurisdiction in the 
instant case.

Respectfully submitted,

Constance Baker Motley 
J ack Greenberg 
J ames M. Nabrit, III 
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, N. Y.

R. J ess Brown

1105Y2 Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants

Michael Meltsner 
Of Counsel