Flemming v. South Carolina Electric and Gas Company Brief for the Appellee

    BRIEF FOR APPELLEE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 6995

S A R A H  MAE FLEMMING, A ppellan t ,

versus

SOUTH CAROLINA ELECTRIC AND GAS COMPANY,
A CORPORATION, A PPELLEE.

A p p e a l  f r o m  t h e  U n i t e d  S t a t e s  D is t r ic t  C o u r t  f o r  

t h e  E a s t e r n  D is t r ic t  o f  S o u t h  C a r o l in a

PAUL A. COOPER,
FRANK B. GARY,
FRANK K. SLOAN,

508 Palmetto Building, 
Columbia, South Carolina, 

Attorneys for Appellee.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.



Statement ........................................................................  1

Questions Presented.....................   3

Argument:
I. (a) The complaint does not meet the jurisdic­

tional requirements of Title 28, U. S. Code, Sec­
tion 1343 (3) ............  4

I. (b) Appellant has not stated a claim against 
Appellee upon which relief can he granted . . . .  10

II. Sections 58-1491 through 58-1496, Title 58, S. C. 
Code, 1952, are not invalid under the Fourteenth 
Amendment .................................................... . • 14

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

TABLE OF CONTENTS
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( i )



TABLE OF CASES

Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693 ......... 15, 17
Bottone v. Lindsley, 170 F. (2d) 705   ....................... 4, 10
Bowman v. Chicago B. Co., 115 U. S. 611, 6 S. Ct. 192

29 L. Ed. 502 ...............................................................  5
Boyer v. Garrett, 183 F. (2d) 582 ............................... 17
Briggs v. Elliott, 98 F. Supp. 529 ................ . . . . . . .......... 17
Brown v. Baskin, 174 F. (2d) 391.............................. 10
Brown v. Board of Education, 347 TJ. S. 483, 74 S. Ct.

686 ...................................................................... 15, 17, 18
Buchanan v. Warlev, 245 U. S. 60, 38 S. Ct. 16, 62 L.

Ed. 149 ......................... ........................... . . . ............  15
Campo v. Niemeyer, 182 F. (2d) 115 ............................ 5
In re Civil Bights Cases, 190 U. S. 3, 3 S. Ct. 18, 27 L.

Ed. 835 ......... ................................ ................. ...........  6
Dawson v. Mayor and City Council of Baltimore, 220 

Fed. 386 . ............................................. .................. 15

P age

duPont Bayon Co. v. Henson, 162 Tenn. 394, 36 S. W.
(2d) 879“ .................................................... .................. 12

Durkee v. Murphy, 181 Md. 265, 29 A. (2d) 256 ............. 17
Enoch Prat Free Public Library v. Kerr, 149 F. (2d)

212 ............................................................. ............... 10
Gregoire v. Biddle, 117 F. (2d) 579 ............. .................. 5
Hardyman v. Collins, 341 TJ. S. 651, 71 S. Ct. 937, 95 L.

Ed. 1258 .................................................................... 5, 10
Houston v. Minneapolis B. Co., 25 N. D. 469, 141 N. W.

944 ........................... ■............................................... 12, 13
Hypes v. Southern By. Co:, 82 S. C. 315, 64 S. E. 395 .. 13 
Kent v. Southern Bv. Co., 52 Ga. App. 731, 184 S. E.

638 .....................'............ ............................................  12
King v. 111. Central, 69 Miss 245, 10 So. 42 . ................... 13
Korematzu v. TJ. S., 323 U. S. 214, 65 S. Ct. 193, 89 L.

Ed. 194 ............................................................. ..........  15
Love v. Chandler, 124 F. (2d) 785 ............................... 5
Lyons v. 111. Greyhound Lines, 192 F. (2d) 533 ............. 14
Maggi v. Pompa, 105 Cal. App. 496, 287 Pae. 982 .........  12
McCabe v. Atcheson, T. & S. F. By. Co., 235 IT. S. 151, 35

S. Ct. 69, 59 L. Ed. 169................................................  15
McKinney Steel Co. v. Belcher, 205 Ky. 453, 266 S. W.

42 .............................................................................  12



TABLE OF CASES—Continued
P a g e

Moffett v. Commerce Trust Co., 82 F. Supp. 438 affd.,
187 F. (2d) 242 ........................................................ 5, 7

Moore v. Atlantic Coastline, 98 F. Supp. 375 .............7, 8
Norfold & Western v. Haun, 167 Va. 157, 187 S. E. 481 . 12 
N. C. v. Transportation Committee, 198 N. C. 317, 151 

S. E. 648 ......................................................................  17
O’Shields v. Caldwell, 207 S. C. 194, 35 S. E. (2d) 184 .. 14 
Picking v. Pennsylvania R. Co., 151 F. (2d) 240, 160 F.

(2d) 106 ....... ' ...................................................7, 8, 9, 10
Plessy v. Ferguson, 163 U. S. 537, 16 S. Ct. 1138, 41 L.

Ed.* 256 ...............................................................2, 15, 17
Redgate v. Southern Pacific, 24 Cal. 573, 141 Pae. 1191 . 12
Rice v. Elmore, 165 F. (2d) 387 ......................................  10
St. Louis I. M. & S. Rv. v. Waters, 105 Ark. 619, 152 S.

W. 137 ......................................................................... 13
St. Louis R. R. Co. v. Hudson, 95 Ark. 506, 138 S. W.

534 ...............................................................................
Schatte v. International Alliance, 182 F. (2d) 158 . . .  .7, 
Shelley v. Kraemer, 334 IT. S. 1, 68 S. Ct. 836, 92 L. Ed.

1161 .............................................................................
Sweat v. Painter, 339 U. S. 629, 70 S. Ct. 848, 94 L. Ed.

1114 ............................................................................
Terry v. Adams, 345 U. S. 461, 73 S. Ct. 809 ................
Thibodo v. U. S., 187 F. (2d) 249 . . . . . ...........................
Thompson v. Gibbes, 60 F. Supp. 872 ...........................
U. S. v. Classic, 313 IT. S. 299, 61 S. Ct. 1031, 85 L. Ed.

1386 ............................................. ...............................
IT. S. v. Cruikshank, 92 U. S. 542, 23 L. Ed. 588 .........
IT. S. v. Realty Co., 163 IT. S. 427, 16 S. Ct. 1120, 41 L.

Ed. 215 ........................................................................
Walton v. Atlanta, 181 F. (2d) 693 ..............................
Watkins v. Oaklawn Jockey Club, 183 F. (2d) 440 .....
Williams v. Carolina Coach Co., 207 F. (2d) 408 .........
Williams v. U. S.. 341 U. S. 97, 71 S. Ct. 576, 95 L. Ed.

774 ...............................................................................
Williams v. Yellow Cab Co., 200 F. (2d) 302 . .5, 6, 7, 
Wrighten v. ITniv. of S. C., 72 F. Supp. 948 ................

12
9

5

17
10
5
5

9
5

14
4
7

14

10
8

( i v)



STATUTES
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U. S. Code, Title 42, Section 1981  ................... 1, 4, 7
IT. S. Code, Title 42, Section 1983  ..................... 1, 4, 7
U. S. Code, Title 28, Section 1343 (3) .............2, 3, 4, 7, 13
S. C. Code, Title 58, Sections 58-1491 through 58-1496 

(1952) .................................................... 2, 3, 8, 11, 13, 14

OTHER, AUTHORITIES
35 A. L. R. 681................................................................ 11
35 A. L. R. 1204 ..................................    11
77 A. L. R. 935 ................................................................ 11
ALI Restatement of Agency, Sections 217 (a) 245 (f) . . 11 
39 Corpus Juris 1273 .................. .......................... 11



BRIEF FOR APPELLEE

United States Court of Appeals
FOR THE FOURTH CIRCUIT

No. 6995

SARAH MAE FLEMMING, A p p e l l a n t , 

versus

SOUTH CAROLINA ELECTRIC AND GAS COMPANY,
A CORPORATION, A PPELLEE.

A p p e a l  f r o m  t h e  U n it e d  S t a t e s  D is t r i c t  C o u r t  f o r  

t h e  E a s t e r n  D i s t r i c t  o f  S o u t h  C a r o l in a

STATEMENT
This is an action for damages in the sum of $25,000.00 

which the plaintiff-appellant, a Negro woman, has brought 
against the defendant-appellee, an intrastate common car­
rier providing municipal bus service in the City of Colum­
bia, South Carolina. Appellant states in her Complaint 
(p. 2a, Appellant’s Appendix) that she is entitled to these 
damages under the provisions of Sections 1981 and 1983, 
Title 42, U. S. Code (16 Stat. 144 and 17 Stat. 13) for 
violation of her civil rights. The violation alleged is that 
appellee’s bus driver enforced against her the segregation



statutes of South Carolina, Sections 58-1491 through 58- 
1496, S. C. Code, 1952. Jurisdiction of the District Court 
is claimed under Section 1343 (3), Title 28, U S. Code.

Appellee filed a motion. to dismiss and an answer 
(pp. 5a and 6a, Appellant’s Appendix). The motion to dis­
miss was upon the grounds (1) that the District Court 
lacked jurisdiction under Section 1343 (3), Title 28, IJ. S. 
Code, there being no diversity of citizenship and no “ state 
action’’ in appellee’s activities; (2) the South Carolina 
segregation statutes are valid and the appellee is not 
liable under their terms for enforcement thereof; and (3) 
that the complaint fails to state facts upon which relief 
can be granted. The District Court held that it was bound 
by the decision of the United States Supreme Court in 
Plessy v. Ferguson, 163 U. S. 567, that segregation in in­
trastate public transportation is a valid exercise of State 
police power, and granted the motion to dismiss upon 
the ground that the complaint fails to state a claim upon 
which relief can be granted. The opinion and order is re­
ported at 128 P. Supp. 469 (p. 7a Appellant’s Appendix). 
From that order appellant has appealed to this Court.

There has been no hearing on the merits and appellant 
is therefore limited to the facts as alleged in the complaint. 
Appellant has gone beyond the allegations of the complaint, 
and outside of the record, and on page 2 of her brief states: 
“ To comply with these provisions (S. C. segregation 
statutes), appellee has adopted and enforces a policy of 
seating white persons from the front to rear and Negro 
passengers from rear to front.’’ The complaint contains 
no such allegations and could not in fact truthfully do so, 
because the appellant has neither adopted nor enforced 
this policy. The Complaint states that the acts complained 
of were those of the bus driver in the enforcement of the 
segregation laws. The statute makes him a special police­

2 F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee



F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee 3

man for that purpose. The bus driver, however, is not made 
a party and no other act or conspiracy to act by appellee 
is alleged.

Whether the segregation statutes are considered valid 
or not, appellant has stated no claim against appellee un­
der Section 1343 (3), Title 28, U. S. Code, or claim upon 
which relief can be granted.

QUESTIONS PRESENTED
The questions raised in appellant’s brief and argued 

in the District Court upon hearing the motion to dismiss, 
may be briefly stated:

1. lias appellant stated a claim against appellee: (a) 
within the jurisdiction of the federal courts, or (b) upon 
which relief can be granted!

2. Are Sections 58-1491 through 58-1496, Title 53, S. C. 
Code 1952, requiring segregation of white and Negro 
passengers in intrastate transportation, invalid as violative 
of the Fourteenth Amendment?

ARGUMENT
Question I

(a) The Complaint does not meet the jurisdictional 
requirements of Title 28, IT. S. Code, Section 1343 (3).

Appellant’s brief here and her argument in the District 
Court were devoted largely to the sole question of the 
constitutionality of South Carolina’s segregation statutes. 
The District Court dismissed the complaint in a brief 
order holding these statutes constitutional. Appellee re­
spectfully submits that the constitutional question should 
not have been reached and that the case should have been 
dismissed on the jurisdictional motion.



Although appellant and her counsel are primarily in­
terested in abolition of segregation laws, the reality of 
this matter to the defendant-appellee, a private business 
corporation operating as a common carrier, is that it is 
being accused of violating Federal penal statutes and ap­
pellant is asking $25,000.00 damages therefor. Appellee’s 
operations are and always have been in good faith, and for 
at least 60 years the United States Supreme Court itself 
has approved the type of state statutes in question. In this 
situation the Court should subject appellant’s claim to 
close scrutiny before holding appellee liable to defend it­
self for violating the law.

The complaint alleges that the action arises under 
Title 42, U. S. Code, Sections 1981 and 1983.1 2 Jurisdiction 
is claimed under Title 28, U. S. Code, Section 1343(3).3 
Unless appellant is entitled to redress against the company 
itself under Section 1343 (3) the Complaint should be 
dismissed. Diversity of citizenship is not a prerequisite of 
Federal Court jurisdiction under the civil rights statutes. 
Bottone v. Lindsley, C. A. 10, 170 F. (2d) 705; Walton v.

4 F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee

1 T itle  42, Sec. 1981 E qual r ig h ts  under the law.
All persons w ith in  the  ju risd ic tion  of th e  U nited S ta tes  shall have 

the  sam e r ig h t in  every  S ta te  and T e rrito ry  to  m ake and enforce con- 
tra c ts , to  sue, be p a rtie s , give evidence, and  to  th e  fu ll and  equal benefit 
o t all law s and proceedings fo r th e  secu rity  o f persons and  p ro p erty  as 
is enjoyed by w hite citizens, and  shall be sub jec t to like punishm ent 
pam s, penalties, taxes, licenses, and  exactions of every kind, and to  no 
o ther, E. S. § 1977.

T itle  42, Sec. 1983 Civil action fo r deprivation  of righ ts.
E very  person who, under color of any  s ta tu te , ordinance, regulation , 

custom, o r usage ,_ of any  S ta te  o r T e rrito ry  subjects, o r causes to  be 
subjected, an y  citizen o f th e  U nited  S ta tes  o r o ther person w ith in  the 
ju risd ic tion  thereo f to the  deprivation  of any  rig h ts , privileges, o r im ­
m unities _ secured by th e  C onstitu tion  and law s, shall be liable to  th e  
p a r ty  in ju red  in  an action a t  law , su it in  equity, o r o ther p roper p ro ­
ceeding fo r redress. R. S. § 1979.

2 T itle  28, Sec. 1343 (3) Civil righ ts.
. The d is tr ic t courts shall have o rig inal ju risd ic tion  of any  civil 

action authorized  by law  to be commenced by any  person :
(3) To red ress th e  deprivation , under color o f an y  S ta te  law, 

s ta tu te , ordinance, regu la tion , custom or usage, of any  rig h t, p riv ilege or 
im m unity  secured by th e  C onstitu tion  of th e  U nited  S ta tes  o r by an y  A ct 
o f C ongress prov id ing  fo r equal r ig h ts  of citizens or o f a ll persons w ith in  
th e  ju risd ic tion  of th e  U nited  S ta tes. Ju n e  25, 1948, c. 646, 62 S ta t. 932.



F lemming, Appellant, v. S. C. E lectric & Gas Co., Appellee 5

Atlanta, C. A. 5, 181 F. (2d) 693; Wrighten v. University 
of 8. C., I). C. S. C., 72 F. Supp. 948; Thompson v. Gibhes, 
D. C. S. C., 60 F. Supp. 872. But ordinarily redress for in­
vasion of an individual’s civil rights by another individual, 
such as the corporate defendant here, must be sought in 
the state courts. Williams v. Yellow Cab Co., C. A. 3, 
200 F. (2d) 302; Thibodo v. U. S., C. A. 9,187 F. (2d) 249.

There is no longer any doubt that the civil rights statutes 
are available only where the action is action of the State 
itself, the 14th Amendment guaranteeing only that no 
State shall deprive a citizen of due process or equal pro­
tection of the laws. Hardyman v. Collins, 341 U. S. 651, 
71 S. Ct. 937, 95 L. Ed. 1258; Shelley v. Kraemer, 334 
U. S. 1, 68 S. Ct. 836, 92 L. Ed. 1161; Bowman v. Chicago
B. Co., 115 U. S. 611, 6 S. Ct. 192, 29 L. Ed. 502; U. S. v. 
Oruikshank, 92 U. S. 542, 23 L. Ed. 588; Moffett v. Com­
merce Trust Co., 87 F. Supp. 438, affd. 187 F. (2d) 242, 
cert. den. 342 U. S. 818, 72 S. Ct. 32, 96 L. Ed. 618; 
Love v. Chandler, C. A. 8, 124 F. (2d) 785; Gregoire v. 
Biddle, C. A. 2, 177 F. (2d) 579; Campo v. Niemeyer,
C. A. 7, 182 F. (2d) 115.

In Moffett v. Commerce Trust Co. the Court said 
(187 F. (2d) at p. 147):

“ The Federal statutes which the plaintiff invokes 
‘were intended to provide for redress against State 
action and primarily that which discriminated against 
individuals within the jurisdiction of the United 
States.’ ”
The Court held that action of administrators and ex­

ecutors in the administration of estates was not State 
action, even though defendants were appointed and acting 
under State laws.

In Campo v. Niemeyer the Court said (182 F. (2d) at
p. 118):



6 Flemming, Appellant, v . S. C. Electric & Gas Co., Appellee

“ The Fourteenth Amendment prohibits a State 
from depriving any person of life, liberty or property 
without due process of law; but this adds nothing to the 
rights of one citizen against another. It simply fur­
nishes an additional guaranty against an encroachment 
by the States upon the fundamental rights which belong 
to every citizen as a member of society. * # * It is State 
action of a particular character that is prohibited. In­
dividual invasion of individual rights is not the subject 
matter of the amendment. In re Civil Eights Cases, 109 
IT. S. 3,11, 3 S. Ct. 18, 27 L. Ed. 835.”
The Court dismissed the complaint charging the State 

judges, a lawyer, and a private individual conspired to 
defraud the plaintiff of her property without due process. 
It observed that plaintiff was not subjected to any greater 
hazard or deprivation than any other citizen of Illinois 
called upon to defend a law suit.

In Williams v. Yellow Cab Co. the court dismissed a 
complaint by Negro taxi drivers against the taxi company 
and a labor union charging discrimination under Pennsyl­
vania state labor relations statutes. The Court said (200 
F. (2d) at p. 307):

“ The defendants in this case obviously are not 
state. officers. The plaintiffs assert, however, that the 
Union acted under color of state law in agreeing on 
their behalf to the discriminatory working regulations 
in controversy and thus brought itself within the terms 
of Section 1343. The argument is that the Pinion was 
acting under authority conferred upon it by the Penn­
sylvania Labor Relations Act.”
The Court pointed out that the Union was the bargain­

ing agent for all its members, including the Negroes, and 
that the effect of the regulations was the same as to all 
members.

‘ ‘ Finally the appellant refers to the decision of this 
court in Picking v. Pennsylvania II. Co., 3 Cir., 1945, 
151 F. (2d) 240. That case, however, does not support



Flemming, Appellant, v . S. C. Electric & Gas Co., Appellee 7

their contention since it was there averred that the 
private corporate defendant conspired with state of­
ficials to deprive the plaintiffs of their civil rights.” 
(Emphases added.)
In short, for an individual to be liable under the Civil 

Rights Statutes it must be alleged that he acted, or pur­
ported to act, on behalf of the State or as a State official, 
or conspired with persons so acting. Picking v. Pennsyl­
vania R. Co., C. A. 3, 151 F. (2d) 240; Schatte v. Inter­
national Alliance, C. A. 9, 182 F. (2d) 158; Moore v. A t­
lantic Coast Line, 13. C. Pa., 98 F. Supp. 375; Williams 
v. Yellow Cab Co., supra.

Sections 1981 and 1983 of Title 42 U. S. Code, entitling 
persons to damages for deprivation of their civil rights, do 
not of course extend the jurisdiction of this Court beyond 
the provisions of Section 1343, of Title 28. Watkins v. 
Oaklawn Jockey Club, C. A. 8, 183 F. (2d) 440; Williams 
v. Yellow Cab Co., supra; Moffett v. Commerce Trust Co., 
supra, and cases cited.

The Complaint herein does not meet the requirements. 
No State action is alleged. No conspiracy by appellee with 
State officials for the purpose of depriving plaintiff of her 
civil rights is alleged. By quoting the language of the 
statutes that “ defendant acting under color of the law, 
customs and usages, as hereinbefore set out, the Defendant 
did wrongfully deprive the Plaintiff, etc.” the Complaint 
merely pleads a legal conclusion.

The allegations of the Complaint on this point are 
paragraphs 6 and 8, wherein appellant alleges that the 
driver of appellee’s bus attempted to make her sit in a 
seat toward the rear of the bus and later prevented her 
from leaving the bus by the front door, acting under segre­
gation laws and customs, because she was a Negro. No 
State action is alleged. No conspiracy by appellee with



State officials is alleged; and it is of course obvious that 
the defendant is not a State agency, even though it operates 
under the provisions of State law. Williams v. Yellow Cab 
Co., supra.

Appellant argues that the control of appellee’s com­
mon carrier operations by the South Carolina Public Serv­
ice Commission under the various statutes set out in her 
brief, together with the requirement of Section 58-1491, 
S. C. Code, 1952, requiring intrastate carriers to provide 
separate accommodations for white and Negro passengers, 
make appellee a “ state agency” within the meaning de­
cisions concerning the civil rights statutes. No authority is 
cited for the proposition, and it flies squarely in the face 
of Picking v. Pennsylvania R. Co,. Moore v. Atlantic Coast 
Line and Williams v. Yellow Cab Co., above cited. Every 
business required to comply with any state law would be 
a ‘ ‘ state agency ’ ’ by appellant’s definition.

There is great similarity to the Complaint here and 
that of plaintiff in Moore v. Atlantic. Coast Line, which is 
summed up as follows by Judge Grim of the U. S. District 
Court for the Eastern District of Pennsylvania (98 F. 
Supp. at p. 377):

“ Plaintiff a Negro avers the following facts: On 
September 26, 1947, he purchased from defendants a 
round-trip coach passenger ticket from Philadelphia, 
Pennsylvania, to Savannah, Georgia, and return. At 
3 :18 P. M. on that same day he boarded train No. 105 
on which he travelled from Philadelphia to Florence, 
South Carolina, occupying Seat No. 42, the reserved 
seat assigned to him in Car CH9, which was owned by 
the Pennsylvania Railroad. The next morning at about 
1:00 o’clock in Florence, South Carolina, defendants’ 
employees obtained the services of four police officers 
who, with defendants’ conductor, woke the plaintiff, 
swore at him, threatened him with physical harm and 
with imprisonment in jail, placed him under arrest,

8 F lemming, Appellant, v . S. C. Electric & Gas Co., Appellee



physically evicted him from Car CH9, which was re­
stricted to white passengers, and forced him into car 
CH3 in the same train, which car was restricted to 
Negroes and owned by Atlantic Coast Line.”
The close parallel between the two cases is further 

illustrated by the Court’s comment in dismissing the Civil 
Rights action (98 F. Supp. at p. 382):

“ By indirection plaintiff attempts to bring the ease 
under the coverage of the Civil Rights Act by stating 
the conclusion of law that defendants’ actions were 
‘committed under color of the laws of the State of South 
Carolina.’ However, there are no factual allegations 
that defendants, which are privately owned railroad 
corporations, or their agents or employees, acted or 
purported to act as state officials or, possibly, in con­
spiracy with state officials in the incident complained of 
in the present case. Therefore, the Complaint, as I see 
it, does not state a cause of action under the Civil 
Rights Act.”
The Court cited the Picking and Schatte cases above 

referred to.
Picking v. Pennsylvania R. Co., the case most often 

cited for the proposition that Civil Rights cases require 
State action, also resulted in dismissal of the railroad as 
a party defendant in a Civil Rights case when the plaintiff 
was unable to supply facts to support State action by its 
agents or conspiracy with State officials. See 160 F. (2d) 
106, following the principal decision, 151 F. (2d) 240. For 
the same reason, the Complaint herein should be dismissed.

Appellant’s proposition runs counter to the unvarying 
interpretation which the courts have given to the civil 
rights statutes since the earliest cases. “ Misuse of power, 
possessed by virtue of state law and made possible only 
because the wrongdoer is clothed with the authority of 
state law, is action taken ‘under color of law’ within the 
statute.” This interpretation is consistent from U. S. v.

F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee 9



Classic, 313 U. S. 299, 61 S. Ct. 1031, 85 L. Ed. 1386 down 
to date, Williams v. U. S., 341 U. S. 97, 71 S. Ct. 576, 
95 L. Ed. 774. Examination of the cases shows that re­
covery has been allowed against state officers or persons 
purporting to be officially acting “ under color of law”, 
not against private individuals. See Bottom v. Lindsley, 
Collins v. Hardy man, Picking v. Pennsylvania, above cited. 
The bus driver, as a special policeman, might meet the 
definition (assuming he would be made a wrongdoer by a 
declaration that the state statutes under which he operated 
are invalid); but this appellee is not made a special police­
man or state agency by the segregation statutes, and it 
does not become so by reason of the fact that its common 
carrier operations are governed by statute.

This fact is recognized by appellant further on in her 
argument (p. 12, Appellant’s Brief), and she revises her 
statement to the effect that appellee “ was a state instru­
mentality as least for this limited purpose,” citing Enoch 
Pratt Free Public Library v. Kerr, C. A. 4, 149 F. (2d) 
212; Terry v. Adams, 345 IT. S. 461, 73 S. Ct. 809; Rice v. 
Elmore, C. A. 4, 165 F. (2d) 387; Brown v. Baskin, C. A. 4, 
174 F. (2d) 391. None of the decisions cited supports the 
statement. Enoch Pratt Free Public Library was a wholly- 
owned public body supported by the State. The other three 
cases involved political parties conducting public elections.

Question. I
(b) Appellant has not stated a claim against appellee 

upon which relief can be granted.
There is a further reason, again aside from the con­

stitutional question, why appellant has not stated a claim 
upon which relief can be granted, and that is that the 
appellee is not liable at common law for the acts of its 
servant, the bus driver, while he acts in his separate

10 Flemming, Appellant, v . S. C. Electric & Gas Co., Appellee



capacity as a special policeman, which was the capacity of 
the driver under Section 58-1494, S. C. Code, 1952.

This is not an action for personal injury for assault 
and battery or use of excess force by the driver. Those are 
properly subject of a tort action in the State court, which 
action the appellant has brought and which is now pending 
in the Court of Common Pleas for Richland County, South 
Carolina. This is an action under the civil rights statutes 
for damages allegedly suffered by appellant through en­
forcement of segregation laws. This is the exact special 
police function of the driver for which appellee is not liable. 

The rule is stated at 35 A. L. R. page 681:
“ The general rule is that, in absence of statute, a 

private person or corporation is not responsible for the 
acts of a special police officer, appointed by public au­
thority, but employed and paid by the private person or 
corporation, when the acts complained of are performed 
in carrying out his duty as a public officer. * * * And 
where a servant has the legal authority to make arrests, 
an arrest by him is presumed to be in the exercise of 
such official authority.”
To the same effect see 39 Corpus Juris 1273, and an­

notations at 55 A. L. R. 1204, 77 A. L. R. 935; also Labatt, 
Master and Servant, vol. 6, p. 7535. The American Law 
Institute’s Restatement of Agency states the matter as 
follows at § 245(f) :

“ * * * If, however, the arrest is made by the serv­
ant, not to advance the interests of his master hut in 
the performance of his duty as a citizen, or solely be­
cause the servant is an officer of the state or munici­
pality, the master is not liable. * * *”
And further at § 217 (a ) :

“ * * * So, if a peace officer who is also a servant 
arrests one whom he honestly believes to be a felon, 
although no felony has been committed, and does this 
in the scope of employment, the master is not liable for

F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee 11



the arrest, although had the master, a private person,
made the arrest personally he would have been liable. 
# # * > ?
Although there are a. multitude of cases on the subject, 

they point clearly to the rule that the master is not liable 
for the act of the servant who is a special policeman where 
the very act which he performs is in the line of his duty 
and is not primarily for the benefit of his employer; and 
this is true, as the Restatement points out, even through 
in the scope of his employment.. See among the leading 
cases Redgate v. Southern Pacific, 24 Cal. 573, 141 Pac. 
1191; Norfolk S. Western v. Haun, 167 Va. 157, 187 S. E. 
481; Kent v. Southern Ry., 52 Ga. App. 731, 184 S. E. 
638; McKinney Steel Co. v. Belcher, 205 Ky. 453, 266 
S. W. 42; Dupont Rayon Co. v. Henson, 162 Tenn. 394, 
36 S. W. (2d) 879; St. Louis R. Co. v. Hudson, 95 Ark. 
506, 130 S. W. 534; Houston v. Minneapolis R. Co., 25 
N. D. 469; 141 N. W. 995; Maggi v. Pompa, 105 Cal. App. 
496, 287 Pac. 982.

In Redgate v. Southern Pacific, the California court 
said:

“ The authority to make arrests, with which plain­
tiff was clothed, was in terms given by the statute and 
in no sense can be said to arise from the relation of 
master and servant, or principal and agent, existing 
between the special officer and the company at whose 
application he was commissioned; and the fact that he 
is to serve at the expense of such company does not af­
fect his status as that of a police officer. The rule of 
respondeat superior has no application where there is 
no evidence tending to show that the company was 
instrumental in causing the arrest or subsequent prose­
cution. ”
The appellant here alleges no act by appellee but the 

acts of the special policeman driver. The acts which ap­
pellant complains of are the very acts which it was the

12 F lemming, Appellant, v . S .C . E lectric & Gas Co., A ppellee



driver’s duly to perform, and were of no special benefit 
to appellee even if in the course of Ms employment. The 
North Dakota court stated the rule well in Houston v. 
Minneapolis R. Co., supra, when it declared that a train 
conductor made a special policeman by statute, while acting 
in obedience to the statute, “ cannot be said to be acting for 
the railroad company at all, as it has no control over him 
while he is in discharge of the duty imposed upon him by 
■statute. ’ ’

The three cases contra cited by appellant each embody 
different situations or rules. Hypes v. Southern Ry. Co., 
82 S. C. 315, 64 S. E. 395, involved a slander by an em­
ployee, and no element of dual agency or special police 
power was involved. King v. Illinois Central, 69 Miss. 245, 
10 So. 42, held that the language of the Mississippi statute 
“ excludes the theory that they (trainmen) are made 
officers.” St. Louis, I. M. & S. Ry. v. Waters, 105 Ark. 
619, 152 S. W. 137 went off on the theory that the statute 
in Arkansas did not diminish the carrier’s liability for the 
special policeman’s acts; while the S. C. statute, Section 
58-1496 specifically provides that neither the driver nor the 
company “ shall be liable for damages in any court” for 
enforcement of the statute.

There is no allegation in the complaint other than that 
the acts complained of were those of the bus driver acting 
under the segregation statutes. Appellant cannot, of course, 
meet the jurisdictional requirements of Section 1343(3) 
unless she alleges state action by someone under color of 
the challenged statutes. If she adheres to them for this 
purpose, she is bound to them in their full effect; and their 
full effect is that their enforcement is the duty of a special 
policeman for which appellee is not liable either at common 
law or by terms of the statutes themselves.

Flemming, Appellant, v . S. C. Electric: & Gas Co., Appellee 13



Appellant contends, of course, that the statutes, are 
invalid; but even that would not render the appellee liable 
for the facts of its driver in the enforcement thereof, 
because, in their enforcement he is not acting for the ap­
pellee. Neither the driver nor appellee has a right, much 
less an obligation, to decide whether the laws of the State 
are constitutional before it obeys them. United States v. 
Realty Co., 163 U. S. 427, 16 S. Ct. 1120, 41 L. Ed. 215.

Justice Oxner of the S. C. Supreme Court commented 
on the question in O’Shields v. Caldwell, 207 S. C. 194, 
35 S. E. (2d) 184, 196: “ Knowledge of the invalidity of 
the law in advance of any authoritative declaration to that 
effect will not be imputed to those who are acting under 
its provisions # * V ’ One does not obey the law at
his peril, and particularly at the peril that such obedience 
(considered proper for 60 years) will suddenly result in 
penalty for willful violation of another law.

The complaint does not state a claim against appellee 
upon which relief can be granted, and it should be dis­
missed.

Question II
Sections 58-1491 through 58-1496, Title 58, S. C. Code, 

1952, are not invalid under the Fourteenth Amendment.
The true objective of appellant is the abolition of 

the segregation laws, and such a holding is necessary to 
support a recovery against appellee. We do not have here 
an action based on violation of the Interstate Commerce 
Act, and the decisions cited by appellant such as Williams 
v. Carolina Coach Co., C. A. 4, 207 F. (2d) 408, and Lyons 
v. Illinois Greyhound Lines, C. A. 7, 192 F. (2d) 533, 
adverted to by appellant do not apply.

Appellee will not attempt an analysis of the rational 
of the various segregation decisions. It would seem more

14 Flemming, Appellant, v . S. C. Electric & Gas Go., Appellee



appropriate to state the issue and consider the legal ques­
tions raised.

Appellant would have the court overrule the previously 
approved right of the States to require segregation of the 
races in intrastate commerce, and particularly to nullify 
Plessy v. Ferguson, 163 TJ. S. 537, 16 S. Ct. 1138, 41 L. Ed. 
256; McCabe v. Atcheson, T. & 8. F. Ry. Co., 235 U. S. 
151, 35 S. Ct. 69, 59 L. Ed. 169, and related cases. In 
urging this step upon the court, appellant cites the gradual 
abolition of segregation in the various fields of public 
education, housing, recreation, and interstate commerce, 
especially the school segregation cases, Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 686; Bolling v. Sharpe, 
347 IT. S. 497, 74 S. Ct. 693; and this court’s decision in 
Dawson v. Mayor and City Council of Baltimore City, 
C. A. 4, 220 F. (2d) 386.

If, then, the constitutional issue is reached in the case 
at hand the court must decide two matters: (1) whether 
classification by the states in intrastate transportation on 
the basis of race is any longer a valid exercise of police 
power, and (2) whether Plessy v. Ferguson is binding un­
less overruled by the Supreme Court itself.

(1). As this court stated in Dawson v. Mayor, it ap­
pears from Brown v. Board of Education, Bolling v. 
Sharpe, and Buchanan v. Warley, 245 IT. S. 60, 38 S. Ct. 
16, 62 L. Ed. 149, that classification based solely upon 
race must be scrutinized with particular care and must be 
justified by some proper governmental objective. Kore- 
matsu v. U. S., 323 IT. S. 214, 65 S. Ct. 193, 89 L. Ed. 194. 
And it was the conclusion of this court in Dawson v. Mayor 
that segregation in public recreational facilities cannot be 
justified as a means to preserve the public peace merely 
because the facilities furnished are equal (200 F. (2d) at 
p. 387).

F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee 15



It is submitted, however, that in the matter of public 
transportation in areas with a high percentage of Negro 
population the necessity to preserve the public peace and 
to.preserve orderly, “ freedom of locomotion” (as appellant 
styles it): requires operation of some rules designed to fore­
stall racial conflict. Even in the field of public educa­
tion, where the children will have the supervision of adults 
with, authority to control them, the Supreme Court has 
been gravely concerned and pondered long on methods to 
accomplish orderly desegregation. More caution, if any­
thing, is indicated before attempting to force a result over 
the prejudices of adults. The court’s attention is invited 
to the fact that the state statutes in question in their present 
form were passed in 1937, not 1877. They reflect a matter 
of which the court may take judicial notice, that is, that the 
racial problem is a tremendous and present difficulty and 
not all segregation laws are punitive measures born of 
reconstruction days.

While it is true that segregation in such a matter as 
voluntary recreation may no longer be justified, appellee 
submits that the same cannot be said of intrastate trans­
portation involving a high volume of traffic in limited space. 
The white and Negro passengers are forced together, and 
only the observance of long-standing custom, supported by 
the driver’s authority to require separation of the re­
calcitrants, has kept the public peace. Appellee as a com­
mon carrier in the business of moving the public over city 
streets knows the reality of the race problem from meet­
ing . it daily. Appellant’s own assertion that “ As such, 
segregation on buses and street cars is bitterly resented 
by Negroes as a badge of inferiority,” (p. 17, Appellant’s 
Brief) only proves the gravity of the warring prejudices 
and resentments involved.

16 F lemming, Appellant, v . S. C. E lectric & Gas Co., Appellee



If any classification of persons by age, race) or other­
wise is valid to preserve pfiblic safety* then classification 
of intrastate passengers by race for the same purpose is 
equally valid until time alleviates the need. Whatever may 
be the case in schools or swimming pools the underlying 
premise of Plessy v. Ferguson and Durkee v. Murphy, 181 
Md. 265* 29 A. (2d) 256, is yet true of bus and street car 
transportation. See N. G. v. Transportation Committee, 
198 N. C. 317, 151 S. E. 648* 66 A. L. E. 1197.

(2). On the remaining point, whether this court should 
undertake to nullify Plessy v. Ferguson in terms, appellee 
simply restates the court’s language from Boyer v. Garrett, 
C.A. 4,183 F . (2d) 582:

‘ ‘ The contention of plaintiffs is that, notwith­
standing this equality of treatment, the rule providing 
for segregation is violative of the provisions of the 
federal Constitution. The District Court dismissed the 
complaint on the authority of Plessy v. Ferguson, 163 
U. S. 537, 16 S. Ct. 1138, 41 L. Ed. 256; and the princi­
pal argument made on appeal is that the authority of 
Plessy v. Ferguson has been so weakened by subsequent 
decisions that we should no longer consider it as bind­
ing. We do not think, howTever, that we are at liberty 
thus to disregard a decision of the Supreme Court 
which that court has not seen fit to overrule and which 
it expressly refrained from reexamining, although 
urged to do so, in the very recent case of Sweatt v. 
Painter (339 U. S. 629), 70 S. Ct. 848 (94 L. Ed. 1114). 
It is for the Supreme Court, not us, to overrule its 
decisions or to hold them outmoded.”
See also Briggs v. Elliott, D. C. S. C., 98 F. Supp. 529. 
While Brown v. Board of Education and Bolling v. 

Sharpe may have largely outmoded Plessy v. Ferguson 
the Supreme Court has not even yet put those decisions 
into effect. To that court should be left the decision whether 
and when to overrule Plessy completely, a thing it refused

FLEMMING, APPELLANT) V. S. G. ELECTRIC &  GAS Co., APPELLEE 17



18 Flemming, Appellant, v . S. C. Electric & Gas Co., Appellee

to do in spite of several opportunities pending before it at 
the time of Brown v. Board of Education.

CONCLUSION
It is respectfully submitted that the Complaint in this 

action should be dismissed for the reasons stated by the 
District Judge, and further for the reasons that the com­
plaint does not meet the jurisdictional requirements of the 
.controlling statutes, and that it fails to state a claim upon 
which relief can be granted.

PAUL A. COOPER, 
FRANK B. CARY, 
FRANK K. SLOAN,

Attorneys for Appellee.
508 Palmetto Building,
Columbia, South Carolina,
May 28, 1955.