Chisom v. Roemer Joint Appendix

    REPLY BRIEF ON BEHALF OF PLAINTIFF IN ERROR

IN THE

Supreme Court of Appeals 
of Virginia

AT RICHMOND

Record No. 4252

JAM ES DOBBIN S,
Plaintiff in Error,

versus

C O M M O N W E A L TH  OF V IR G IN IA , 
Defendant in Error

Oliver W . H ill,
Spottswood W . Robinson, III, 
Martin A. Martin,

623 North Third Street, 
Richmond 19, Virginia.

Counsel for Plaintiff in Error,



SUBJECT IN D E X

Preliminary Statement................................................... 1
Questions Not Involved in the Appeal ..................... 2
Argument .........................................................................  3

I. The Elements of Racial Segregation and Dis­
crimination Consequent upon Attendance of 
Defendant’s Child at Hamilton-Holmes 
High School Are Relevant and Material to
the Issues Involved ......................................... 3

II. The Elements of Racial Segregation and Dis­
crimination Consequent upon Attendance of 
Defendant’s Child at Hamilton-Holmes 
High School Are Available in Defense 
Against the Prosecution in This C ase........  6
A. The Poulos Case ......................................  7

The New Hampshire Proceedings ........ 8
The Supreme Court Proceedings ..........  10
Conclusions as to the D ecision................. 15

B. Other Cases ...............................................  19
Conclusion ................................................................    26

T A B L E  O F C ITA TIO N S 
Cases

Campbell v. Bryant, 104 Va. 509, 52 S.E. 638 
(1905) ............................................    20

Cantwell v. Connecticut, 310 U.S. 296 (1940) 10, 14, 20
Carpel v. Richmond, 162 Va. 833, 175 S.E. 316 

(1934)

Page

6



Chicot County District v. Baxter State Bank, 308 
U.S. 371 (1940) ........................................................  20

Dahnke-Walker Milling Co. v. Bondurant, 257 U.S.
282 (1921) ................................................................  5

Dejonge v. Oregon, 299 U.S. 353 (1936) ............20,21
Estep v. United States, 327 U.S. 114 (1 9 4 6 ) ............  10
Fisher v. Hurst, 333 U.S. 147 (1948) .....................  19
Foster v. Commonwealth, (Record No. 2747, Oc­

tober, 1943, Term, Supreme Court of Appeals of 
Virginia, Unreported) ...................................... 5, 20, 2J

Gibson v. United States, 329 U.S. 338 (1946) ........ 10
Griffin v. Norfolk County, 170 Va. 370, 196 S.E.

698 (1938) ................................................................... 6
Hague v. Congress of Industrial Organizations, 307 

U.S. 496 (1939) ........................................................ 10
Jones v. County School Board of Brunswick County, 

(Record No. 4090, October, 1952, Term, Unre­
ported) .................   18

Lane v. Wilson, 307 U.S. 268 (1939) .......................  5
Louthan v. Commonwealth, 79 Va. 196 (1884) ... 20, 21
Miller v. Commonwealth, 88 Va. 618, 14 S.E. 161 

(1892) ....................................................................... 20,21
Morgan v. Virginia, 328 U.S. 373 (1946) ............ 20,21
Niemotko v. Maryland, 340 U.S. 268 (1 9 5 1 ) ............  5
Norton v. Shelby County, 118 U.S. 425 (1886) ........ 19
Pierce v. Society of Sisters, 268 U.S. 510 (1925) ...  5
Poindexter v. Greenhow, 114 U.S. 270 (1885) ......5,23
Porter v. Commonwealth, (Record No. 2746, Oc­

tober, 1943, Term, Supreme Court o f Appeals of 
Virginia, Unreported) .......................................5,20,21

Page



Poulos v. New Plampshire, 345 U.S. 395
(1953) ...........................7,8, 11, 12, 13, 14, 15,24,25

Poulos v. State, 97 N. H. 352, 88 A. 2d 860 
(1952) ......................................................................... 9,10

Quong W ing v. Kirdendall, 223 U.S. 59 (1912) ...... 5
Richmond v. Deans, 281 U.S. 704 (1930) ................. 5
Royall v. Virginia, 116 U.S. 572 (1886) ... 5, 14, 20, 21

23, 25
Shelley v. Kraemer, 334 U.S. 1 (1948) ..................... 5
Sipuel v. Board of Regents, 332 U.S. 631 (1948) ...  19
Smith v. Allwright, 321 U.S. 649 (1944) ................  5
Snyder v. Massachusetts, 291 U.S. 97 (1934) ........ 5
State v. Derrickson, 97 N. H. 91, 81 A. 2d 312 

(1951) .........................................................................  8
State v. Poulos, 97 N. H. 91, 81 A. 2d 312 (1 9 5 1 )...  8
State v. Stevens, 78 N. H. 268, 99 A. 723, L. R. A. 

1917C, 528 (1916) ...................................................  9
Thomas v. Collins, 323 U.S. 516 (1945) ................ 14, 20

C O N ST IT U T IO N A L  A N D  S T A T U T O R Y  
A U T H O R IT IE S

Constitution of the United States:

Page

First Amendment...................................................  12
Fourteenth Amendment..................................5, 10, 17

United States Code:
Title 8, Section 41 ...............................................  5

Code of Virginia (1950) :
Section 22-57 17



IN THE

Supreme Court of Appeals 
of Virg inia

AT RICHMOND

Record No. 4252

JAM ES D OBBIN S,
Plaintiff in Errorr

versus

C O M M O N W E A L TH  OF V IR G IN IA , 
Defendant in Error

REPLY BRIEF ON BEHALF OF PLAINTIFF IN ERROR

P R E L IM IN A R Y  STA TE M E N T

The Commonwealth’s brief presents certain arguments 
which plaintiff in error desires to answer. Hence this 
reply brief.

Plaintiff in error will hereinafter be referred to as 
the defendant, the position he occupied in the trial court. 
References to the record, and to the petition for writ of 
error, adopted as and hereinafter referred to as defend­
ant’s opening brief, are to the page numbers printed in the



upper left and right corners of the page rather than to 
the original page numbers. A  statement of the material 
proceedings in the lower court, the errors assigned, the 
questions involved in the appeal, a statement of the facts, 
and defendant’s opening argument, are contained in de­
fendant’s opening brief.

Q U ESTIO N S N O T IN V O L V E D  IN T H E  A P P E A L

The Commonwealth addresses argument to three ques­
tions which may be eliminated at the outset because they 
are not involved in this appeal.

It argues that the compulsory attendance laws are valid 
on their face (Commonwealth’s Brief, pp. 6, 7). De­
fendant does not contend that the invalidity o f such laws, 
as to him, appears on their face. As was stated in his 
opening brief (pp. 8-9), he claims no immunity to such 
laws when so enforced as to affect all similarly situated 
persons in substantially the same manner. He does com­
plain that such laws, as here enforced, produce dissimilar 
effects upon a group o f children and parents, including 
himself, differentiated from others only by race. He does 
contend that upon the facts and in the circumstances 
shown by the evidence received and the evidence tendered 
in this case, such laws cannot constitutionally be en­
forced against him. And he further contends that these 
laws, properly construed with reference to the facts and 
circumstances of this case, were never violated by him.

The Commonwealth further argues that the reasons for 
nonattendance specified in the compulsory attendance 
laws are exclusive (Commonwealth’s Brief, pp. 18-21). 
Defendant does not contend that there are nonstatutory



[ 3 ]

justifications for nonattendance in cases where the laws 
have valid and proper operation. Defendant does contend 
that he is not confined to statutory justifications where, 
as here, the statutes neither validly nor properly apply 
to him.

Additionally, the Commonwealth argues that defend­
ant’s beliefs do not exempt him from compliance with 
the compulsory attendance laws (Commonwealth’s Brief, 
pp. 7, 15-19, 24). Defendant has never contended that 
beliefs, as such, do. Defendant claims exemption because 
the laws can neither constitutionally nor properly be 
applied or enforced against him upon the facts and cir­
cumstances of this case.

A R G U M E N T
I

The Elements of Racial Segregation and Discrimination 
Consequent upon Attendance o f Defendant's Child at 
Hamilton-Holmes High School are Relevant and Ma­
terial to: the Issues Involved.

The Commonwealth urges that considerations o f racial 
segregation and discrimination— necessary concommit- 
ants of defendant’s child’s attendance at Hamilton- 
Holmes High School— are irrelevant (Commonwealth’s 
Brief, pp. 13-15, 21-22, 25, 30). On this basis, it further 
contends that defendant’s evidence offered at the trial 
upon these matters was properly held to be inadmissible 
on the merits of the case. (Commonwealth’s Brief, pp. 
22-24.)

While this case is necessarily based upon an alleged 
violation of the compulsory attendance laws, it is clear



[ 4 ]

that their invalidity, as applied to the situation presented 
in the instant case, arises from their operation integrally 
with the segregation laws and upon the differentials 
developing as between attendance at West Point High 
School and attendance at Hamilton-Holmes High 
School. This was extensively discussed in defendant’s 
opening brief (pp. 7-10). As was there pointed out, the 
conviction in this case did not follow a refusal by de­
fendant to send his child to West Point High, where the 
Town’s white secondary students attend, but resulted 
because defendant refused to send the child to Hamilton- 
Holmes (1 )  the students in which are kept apart from 
all other racial groups in the Town, (2 ) which is unequal 
and inferior to West Point High, (3 )  which is owned 
and controlled by an entirely different governmental 
agency, and (4 )  attendance at which would subject all 
Negro parents and children to burdens and hardships to 
which white parents and children are not subjected. The 
compulsory attendance laws, as here applied, would com­
pel the child to attend Hamilton-Holmes and compel the 
parent to send her there, and this solely because of their 
race and color.

The Commonwealth fails to appreciate these considera­
tions. Indeed, it twice undertakes to restate defendant’s 
contentions upon this appeal (Commonwealth’s Brief, 
pp. 2, 9 ). Neither restatement is acceptable to defend­
ant. His position, insofar as the constitutional validity 
of the compulsory attendance laws is concerned, is that 
the application or enforcement o f such laws to require 
defendant to send his child to attend, or to require the 
child to attend, (1 ) a racially segregated school, or (2 ) 
a school inferior to the school attended by similarly 
situated white children, or (3 ) a school attendance at



[ 5 ]

which would subject defendant and the child to burdens 
and inconveniences to which white parents and their 
children are not subjected, or (4 )  a school over which the 
School Board of West Point Town has no jurisdiction or 
control, denies rights of both defendant and the child 
secured by the due process and equal protection clauses of 
the Fourteenth Amendment of the Constitution of the 
United States, and by Title 8, United States Code, Sec­
tion 41, and accordingly is unconstitutional and void.

As defendant pointed out in his opening brief (pp. 
9-10), this challenge is not confined to segregation laws, 
but extends to any other type of state law or action ac­
complishing the same results. Defendant repeats that 
constitutional protections extend to “ sophisticated as 
well as simple-minded modes of discrimination,”  Lane v. 
Wilson 307 U.S. 268, 275; see also Smith v. Allwright, 
321 U.S. 649 (1944) ; Richmond v. Deans, 281 U.S. 704 
(1930 ); Shelley v. Kraemer, 334 U.S. 1 (1948), and 
that compulsory school attendance laws, if constitutionally 
infirm, are not beyond their reach. Pierce v. Society of 
Sisters, 268 U.S. 510 (1925). See also Foster v. Com- 
monwealth, Porter v. Commonwealth, (Records Nos. 
2747, 2746, October, 1943, Term, Supreme Court of 
Appeals o f Virginia, Unreported). Nor is the Common­
wealth’s position in this connection assisted by the claim 
that such laws are valid on their face (Commonwealth’s 
Brief, pp. 6, 7 ). It is well settled that laws valid in gen­
eral and ordinary operation may become invalid and un­
constitutional as applied to particular situations. Dahnke- 
Walker Milling Co. v. Bondurant, 257 U.S. 282, 289 
(1921 ); Royall v. Virginia, 116 U.S. 572, 583 (1886 ); 
Poindexter v. Greenhow, 114 U.S. 270, 295 (1885) ; see 
also Niemotko v. Maryland, 340 U.S. 268 (1951 ); Sny­



[ 6 ]

der v. Massachusetts, 291 U.S. 97, 115-116 (1934 ); 
Quong Wing v. Kirkendall, 223 U.S. 59 (1912) ; Griffin 
v. Norfolk County, 170 Va. 370, 376, 196 S.E. 698, 700 
(1938) ; Carpel v. Richmond, 162 Va. 833, 843-844, 175 
S.E. 316, 319 (1934).

Additionally, defendant further contends that the 
compulsory attendance laws, properly construed with 
reference to the facts and circumstances o f this case, 
were not violated. The operative effect o f the segregation 
laws is a factor relevant to determination o f this issue. 
This was discussed in his opening brief (pp. 30-31), and 
further elaboration is unnecessary.

Finally, if the unconstitutionality o f a statute may be 
demonstrated by consideration of extrinsic evidence, it is 
clear that the evidence offered by defendant at the trial is 
competent, relevant and material to the issues presented 
in this case. As the authorities discussed in the section 
o f defendant’s opening brief devoted to this point (pp. 
31-37) establish that unconstitutionality may be demon­
strated in this fashion, the trial court erred in refusing 
to receive and consider the same on the merits o f the 
case.

II.
The Elements of Racial Segregation and Discrimination 
Consequent Upon Attendance o f Defendant’s Child at 
Hamilton-Holmes High School are Available in Defense 
Against the Prosecution in this Case.

The Commonwealth claims that the elements of racial 
segregation and discrimination consequent upon attend­
ance of defendant’s child at Hamilton-Holmes High



[ 7 ]

School were matters as to which defendant’s exclusive 
remedy was corrective civil proceedings and are not avail­
able in defense against the prosecution in this case (Com ­
monwealth’s Brief, pp. 25-31). Examination o f this 
position must commence with analysis o f Poulos v. 
New Hampshire, 345 U.S. 395 (1953), upon which the 
Commonwealth chiefly relies.

A. T he Poulos Case.

An ordinance of the City of Portsmouth, New 
Hampshire, prohibited open air meetings on grounds 
abutting public streets or ways unless a license therefor 
should first be obtained from the City Council, and made 
a violation of this requirement an offense punishable by 
fine. Poulos and Derrickson, Jehovah’s Witnesses, applied 
to the City Council for a license to conduct religious serv­
ices in Goodwin Park, a public facility. They offered 
payment o f all proper fees and charges and complied with 
all procedural requirements. The license was refused. 
They nevertheless held the planned services, and were 
prosecuted for violation of the ordinance.

Significant differences between the instant case and 
the Poulos case may be noted at the outset. Neither the 
ordinance on which the prosecution was based, nor any 
other law having operation in the factual situation 
presented, made any distinction or classification on the 
basis of religion or otherwise. From beginning to end 
the defendants conceded, and the courts all held, that the 
ordinance was valid in its general operation. There 
appeared nothing that would render the ordinance invalid 
in its application to Poulos or his companion; the arbi­
trary refusal o f the license, while a correctable error,



[ 8 ]

would not affect the validity of the ordinance as to which 
the error was committed. Consequently, the questions 
in the case were different. A  somewhat detailed analysis 
o f the proceedings is essential to precise demonstration 
o f the issues presented and the points decided.

The New Hampshire Proceedings:

Poulos and Derrickson were first tried, and wTere con­
victed and fined, in the Portsmouth Municipal Court. 
They took an appeal entitling them to a plenary trial in 
the Superior Court. Before that trial, they moved to dis­
miss the complaints on the ground that the ordinance 
as applied was unconstitutional and void. Pursuant to 
New Hampshire practice, this motion on the constitutional 
question was transferred to the Supreme Court of New 
Hampshire which sustained the validity of the ordinance 
and discharged the case, State v. Derrickson, State v. 
Poulos, 97 N. H. 91, 81 A. 2d 312 (1951), construing the 
ordinance, and stating the issue and its holding, as follows 
(97 N. H. at 93, 95, 81 A. 2d at 313, 315) :

“ The discretion thus vested in the authority 
[city council] is limited in its exercise by the bounds 
o f reason, in uniformity of method of treatment upon 
the facts o f each application, free from improper or 
inappropriate considerations and from unfair dis­
crimination . . . The issue which this case presents 
is whether the city of Portsmouth can prohibit re­
ligious and church meetings in Goodwin Park on 
Sundays under a licensing system which treats all 
religious groups in the same manner . . . What we 
do decide is that a city may take one o f its small 
parks and devote it to public and nonreligious pur­



poses under a system which is administered fairly 
and without bias or discrimination.”

The result o f this action was to open the case for trial 
in the Superior Court. That Court held that the ordinance 
was valid, that the refusal of the licenses by the City 
Council was arbitrary and unreasonable, but, in the 
view that defendants should have raised the question of 
their right to the license by appropriate civil proceedings, 
refused to dismiss the prosecution on that ground.

The defendants appealed to the Supreme Court of 
New Hampshire. Derrickson died before the appeal was 
heard. That Court affirmed. Poulos v. State, 97 N. H. 
352, 88 A. 2d 860 (1952). It considered that the prose­
cution was “under a valid ordinance which requires a 
license before open air public meetings may be held.” 
(97 N. H. at 357, 88 A. 2d at 863.) It pointed out 
that in State v. Stevens, 78 N. H. 268, 99 A. 723, L.R.A. 
1917C, 528 (1916), the Court had established the rule 
that a wrongful refusal to grant a license is not a bar 
to a prosecution for acting without the license and that 
“ This case clearly set forth the procedure to be followed 
in New Hampshire by one who has wrongfully been denied 
a license.”  (97 N. H. at 355-356, 88 A. 2d at 861-862.) 
Attention was called to the fact that “ in this jurisdiction if 
a licensing statute is constitutional and applies to those 
seeking a license, the remedy here provided consists of 
proceedings against the licensing authority that has 
wrongfully denied the license.”  (97 N. H. at 356, 88 A. 
2d at 862-863.) “ The remedy of the defendant Poulos 
for any arbitrary and unreasonable conduct o f the 
City Council was accordingly in certiorari or other ap­



[ 1 0 ]

propriate civil proceedings.”  (97 N. H. at 357, 88 A. 2d 
at 863.)

Thus, the New Hampshire determination was that the 
ordinance was valid on its face and that, accordingly, 
Poulos’ remedy was by certiorari to review the unlawful 
refusal o f the Council to grant the license, and not by 
holding the services without a license and then defending 
because the refusal of the license was arbitrary. That the 
Supreme Court o f New Hampshire considered the issue 
different where the law on which the prosecution is based 
is invalid, either on its face or because of its application 
in the particular case, is apparent from the fact that the 
Court distinguished Cantwell v. Connecticut, 310 U.S. 
296 (1940) and Hague v. Congress of Industrial Organi­
sations, 307 U.S. 496 (1939) on the ground that they 
involved prosecutions based on ordinances held to be un­
constitutional, and Estep v. United States, 327 U.S. 114 
(1946) and Gibson v. United States, 329 U.S. 338 (1946) 
on the ground that the Selective Service orders there 
violated were invalid. (97 N. H. at 356-357, 88 A. 2d 
at 862-863.)

The Supreme Court Proceedings:

Poulos appealed to the Supreme Court of the United 
States. The Court concluded that his contentions, which 
the Court found “ difficult to epitomize,”  (345 U.S. at 
400), were as follows (Id. at 401-402) :

. . first, no license for conducting religious cere­
monies in Goodwin Park may be required because 
such a requirement would abridge the freedom of 
speech and religion guaranteed by the Fourteenth



[ 1 1 ]

Amendment; second, even though a license may be 
required, the arbitrary refusal o f such a licejnse by 
the Council, resulting in delay, if appellant must, as 
New Hampshire decided, pursue judicial remedies, 
was unconstitutional, as an abridgement of free 
speech and a prohibition of the free exercise of reli­
gion. The abridgement would be because o f delay 
through judicial proceedings to obtain the right of 
speech and to carry out religious exercises. The due 
process question raised by appellant as a part o f the 
latter constitutional contention disappears by our 
holding, as indicated later in this opinion, that the 
challenged clause of the ordinance and New Hamp­
shire’s requirement for following a judicial remedy 
for the arbitrary refusal are valid . . . The state 
ground for affirmance, i. e., the failure to take cer­
tiorari from the action refusing a license, depends 
upon the constitutionality of the ordinance.”

On the first contention, the majority of the Court, 
accepting the New Hampshire construction, denominated 
the license requirement “ a ministerial, police routine”  
(Id. at 403) requiring “ uniform, nondiscriminatory and 
consistent administration o f the granting of licenses for 
public meetings on public streets or ways or such a park 
as Goodwin Park, abutting thereon,”  (Id. at 402) and 
leaving the licensing officials “ no discretion as to granting 
permits, no power to discriminate, no control over speech.” 
(Id. at 404.) It considered that New Hampshire’s con­
struction of the ordinance “ made it obligatory upon 
Portsmouth to grant a license for these religious services 
in Goodwin Park,”  (Ibid), and assumed that “ with the 
determination o f the Supreme Court of New Hampshire



[ 1 2 ]

that the present ordinance entitles Jehovah’s Witnesses 
to hold religious services in Goodwin Park at reasonable 
hours and times, the Portsmouth Council will promptly 
and fairly administer their responsibility in issuing per­
mits on request.”  (Id. at 408.)

On the second issue, the majority concluded as follows 
(Id. at 408-409) :

“ New Hampshire’s determination that the or­
dinance is valid and that the Council could be com­
pelled to issue the requested license on demand brings 
us face to face with another constitutional problem. 
May this man be convicted for holding a religious 
meeting without a license when the permit required 
by a valid enactment— the ordinance in this case—  
has been wrongfully refused by the municipality?

“ Appellant’s contention is that since the Con­
stitution guarantees the free exercise o f religion, 
the Council’s unlawful refusal to issue the license 
is a complete defense to this prosecution. His ar­
gument asserts that if he can be punished for viola­
tion o f the valid ordinance because he exercised his 
right of free speech, after the wrongful refusal of the 
license, the protection of the Constitution is illusory. 
He objects that by the Council’s refusal of a license, 
his right to preach may be postponed until a case, 
possibly after years, reaches this Court for final 
adjudication o f constitutional rights. Poulos takes 
the position that he may risk speaking without a 
license and defeat prosecution by showing the license 
was arbitrarily withheld.

“ It must be admitted that judicial correction of 
arbitrary refusal by administrators to perform offi­



[ 1 3 ]

cial duties under valid laws is exulcerating and costly. 
But to allow applicants to proceed without the re­
quired permits to run businesses, erect structures, 
purchase firearms, transport or store explosives or 
inflammatory products, hold public meetings without 
prior safety arrangements or take other unauthorized 
action is apt to cause breaches of the peace or create 
public dangers. The valid requirements of license are 
for the good o f the applicants and the public. It would 
be unreal to say that such official failures to act in 
accordance with state law, redressable by state judi­
cial procedures, are state acts violative o f the Federal 
Constitution. Delay is unfortunate but the expense 
and annoyance of litigation is a price citizens must 
pay for life in an orderly society where the rights of 
the First Amendment have a real and abiding mean­
ing. Nor can we say that a state’s requirement that 
redress must be sought through appropriate judicial 
procedure violates due process.”

It is thus clear that the decision on the second issue 
simply upheld New Hampshire’s procedural requirement 
— o f correction by civil proceedings of a wrongful denial 
o f a license— as applied to a criminal prosecution, under 
a law valid both on its face and in its application, for con­
duct without the license. The precise holding is epitomized 
in the concluding sentences of the majority opinion {Id. 
at 414) :

“ In the present prosecution there was a valid 
ordinance, an unlawful refusal of a license, with 
remedial state procedure for the correction of the



[ 1 4 ]

error. The state had authority to determine, in the 
public interest, the reasonable method for correction 
o f the error, that is, by certiorari. Our Constitution 
does not require that we approve the violation of a 
reasonable requirement for a license to speak in public 
parks because an official error occurred in refusing a 
proper application.”

But, more importantly, the majority and dissenting 
opinions each emphatically pointed out that such a re­
quirement could not obtain, nor could the defendant be 
precluded from asserting the matter in his defense in 
a criminal prosecution, if the law upon which the prose­
cution is based is invalid either on its face or in its appli­
cation. The majority opinion elaborately discussed Royali 
v. Virginia, 116 U.S. 572 (1886), Cantwell v. Connecti­
cut, 310 U.S. 296 (1940), and Thomas v. Collins, 323 
U.S. 516 (1945), upon which Poulos relied in support 
of his position, and stated (Id. at 413-414):

“ It is clear to us that neither of these decisions is 
contrary to the determination of the Supreme Court 
o f New Hampshire. In both of the above cases the 
challenged statutes were held unconstitutional. In 
the Royali case, the statute requiring payment of the 
license fee in money was unconstitutional. In the 
Cantwell case the statute had not been construed by 
the state court ‘to impose a mere ministerial duty 
on the secretary of the welfare council.’ The right to 
solicit depended on his decision as to a ‘religious 
cause.’ 310 U.S. at page 306, 60 S. Ct. at page 904, 
84 L. Ed. 1213. Therefore we held that a statute 
authorizing this previous restraint was unconstitu-



[ I S ]

tional even though an error might be corrected after 
trial. In the Thomas case the section of the Texas 
Act was held prohibitory o f labor speeches any­
where on private or public property without registra­
tion. This made Section 5 unconstitutional. The 
statutes were as though they did not exist. There­
fore there were no offenses in violation of a valid 
law.”

Likewise, Mr. Justice Douglas and Mr. Justice Black, 
dissenting, forcefully pointed out (Id. at 422) :

“ The Court concedes, as indeed it must under our 
decisions, see Royall v. State o f Virginia, 116 U.S. 
572, 6 S. Ct. 510, 29 L. Ed. 735; Thomas v. Collins, 
323 U.S. 516, 65 S. Ct. 315; 89 L. Ed. 430, that if 
denial o f the right to speak had been contained in a 
statute, appellant would have been entitled to flout 
the law, to exercise his constitutional right to free 
speech, to make the address on July 2, 1950, and 
when arrested and tried for violating the statute, to 
defend on the grounds that the law was unconstitu­
tional.”

Conclusions As To The Decision:

The Poulos decision does not sustain the Common­
wealth’s position in the instant case. Rather, the differ­
ences between the cases are quite obvious.

1. In the Poulos case, neither the ordinance on which 
the prosecution was based, nor any other law having oper­
ation in the factual situation presented, made any distinc­
tion or classification on the basis of religion or other-



[ 1 6 ]

wise. The ordinance was valid on its face. There appeared 
nothing that would render the ordinance invalid as ap­
plied to Poulos; the arbitrary refusal of the license, while 
an error for which the state provided corrective machin­
ery, did not affect the validity o f the ordinance as to 
which the error was committed. Thus, the case is simply 
one in which “ there was a valid ordinance, an unlawful 
refusal o f a license, with remedial state procedure for the 
correction o f the error.”  (345 U.S. at 414.) In these 
circumstances, the requirement that Poulos resort to an 
adequate civil remedy afforded by state law to correct the 
error did not constitute a denial o f due process, and no 
equal protection issue was involved.

On the other hand, the statutes upon which the present 
prosecution was based are unconstitutional and void as 
applied to the facts and circumstances of the instant 
case. Since it is not the law that one must obey a void 
statute, defendant is uninhibited as to making his defense 
in this prosecution.

2. The issuance o f the license sought in the Poulos 
case was a routine, ministerial function. As was found, 
Poulos was plainly entitled to the license and the City 
Council had no valid ground for refusing it. The proce­
dure to correct the refusal, and the issue thereon, were 
simple; lawyers would hardly consider the undertaking 
magnitudinous. Mr. Justice Frankfurter, in his con­
curring opinion, pointed out (345 U.S. at 419-420) :

“ There is nothing in the record to suggest that the 
remedy to which the Supreme Court o f New Hamp­
shire confined Poulos effectively frustrated his right 
of utterance, let alone that it circumvented his con­
stitutional right by a procedural pretense. Poulos’



[ 17]

application for a permit was denied on May 4, 1950, 
and the meetings for which he sought the permit 
were to be held on June 25 and July 2, In the absence 
of any showing that Poulos did not have available a 
prompt judicial remedy to secure from the Council 
his right, judicially acknowledged and emphatically 
confirmed on behalf o f the State at the bar o f this 
Court, the requirement by New Hampshire that 
Poulos invoke relief by way of mandamus or cer­
tiorari and not take the law into his own hands did 
not here infringe the limitations which the Due 
Process Clause o f the Fourteenth Amendment places 
upon New Hampshire.”

The Commonwealth points to the fact that the School 
Board’s decision to relegate Negro secondary school 
pupils to Hamilton-Holmes was known in July and argues 
that defendant “ had a period as long or longer than 
Poulos in which to seek relief. Section 22-57 of the 
Code o f Virginia, 1950, provides for a quick and ex­
peditious method of adjudication.”  (Commonwealth’s 
Brief, p. 28; see also p. 27.) The section referred to pro­
vides as follows:

“ Any five interested heads of families, residents 
o f the county, or city, who may feel themselves 
aggrieved by the action of the county or city school 
board, may, within thirty days after such action, 
state their complaint, in writing, to the division 
superintendent of schools who, if he cannot within 
ten days after the receipt o f the complaint, satis­
factorily adjust the same, shall, within five days 
thereafter, at the request of any party in interest, 
grant an appeal to the circuit court o f the county or



[ 1 8 ]

corporation court of the city or the judge thereof 
in vacation who shall decide finally all questions at 
issue, but the action of the school board on questions 
o f discretion shall be final unless the board has ex­
ceeded its authority or has acted corruptly.”

It is highly unlikely that this section provides a remedy 
comparable to the New Hampshire remedies— certiorari 
or mandamus— or of the character that the Supreme 
Court had in mind. It may well be doubted that it affords 
a judicial remedy; apparently the court simply exercises 
administrative functions and issues an administrative 
order on the appeal. The extent to which, if at all, issues 
of the kind defendant raised in this case could be litigated 
on such appeal is not clear. It is certain, however, that, 
as the statute expressly provides that the court “ shall 
decide finally all questions at issue,”  its decision is final 
and binding, and this Court has no jurisdiction to review 
the proceedings, irrespective of the character of questions 
presented. Jones v. County School Board of Brunswick 
County, (Record No. 4090, October, 1952, Term, Un­
reported). Significantly, any appeal by defendant under 
the provisions of Section 22-57 would have gone to the 
court in which the instant case was tried, and upon the 
trial that Court stated that public school segregation is 
valid (R . 100).

More importantly, the issue arising from the refusal 
to grant Poulos a license, and the issues developing in 
the instant case, are hardly in the same class. It is a matter 
of common knowledge that substantially similar issues 
have remained in litigation for years. Could the issues 
presented in this case have been resolved in the short 
space of two months in proceedings under Section 22-



119]

57, or for injunctive or other relief? To ask the question 
is to answer it.

3. It was not incumbent upon defendant to seek cor­
rection of unlawful conditions existing in the school 
system. This was made clear in Sipuel v. Board of 
Regents, 332 U.S. 631 (1948) where plaintiff, a Negro, 
was refused admission to the only state-supported law 
school in Oklahoma because o f her race. The courts of 
that state denied mandamus compelling admission on the 
ground that plaintiff should have requested the establish­
ment o f a separate law school. The Supreme Court of 
the United States reversed. When the case again came 
before the Supreme Court, Fisher v. Hurst, 333 U.S. 
147 (1948), the Court said (at 150) :

“The Oklahoma Supreme Court upheld the refusal 
to admit petitioner on the ground that she had failed 
to demand establishment of a separate school and 
admission to it. On remand, the district court cor­
rectly understood our decision to hold that the equal 
protection clause permits no such defense.”

It is accordingly submitted that the holding in the 
Poulos case has no application to the instant case.

B. Other Cases

The classic statement as to the effect o f an uncon­
stitutional statute was made in Norton v. Shelby County, 
118 U.S. 425, (1886 ):

“ An unconstitutional act is not a law; it confers 
no rights; it imposes no duties; it affords no protec­



[2 0 ]

tion; it creates no office; it is, in legal contemplation, 
as inoperative as though it had never been passed.”

And that is precisely what this Court has stated its 
effect to be. Campbell v. Bryant, 104 Va. 509, 516, 52 
S.E. 638, 640 (1905).

This is the original and still the general doctrine. While 
there have been some departures, see Chicot County Dis­
trict v. Baxter State Bank, 308 U.S. 371 (1940), they 
have not extended to conviction of a defendant upon a law 
that is unconstitutional as applied to him. If the law 
upon which the prosecution rests is unconstitutional, the 
defendant cannot be guilty, and so must be acquitted. 
See Morgan v. Virginia, 328 U.S. 373 (1946 ); Thomas 
v. Collins, 323 U.S. 516 (1945 ); Cantwell v. Connecti­
cut, 310 U.S. 296 (1940) ; DeJonge v. Oregon, 299 U.S. 
353 (1936 ); Royall v. Virginia, 116 U.S. 572 (1886 ); 
Miller v. Commonwealth, 88 Va. 618, 14 S.E. 161 
(1892) ; Louthan v. Commonwealth, 79 Va. 196 (1884 ); 
Foster v. Commonwealth, Porter v. Commonwealth 
(Records Nos. 2747, 2746, October, 1943, Term, Un­
reported).

One would consider self-contradictory a contention 
that the individual must conform to an unconstitutional 
statute or must, if its enforcement invades his constitu­
tional rights, seek redress in civil proceedings appro­
priate for the purpose. Clearly he may elect to adopt the 
latter course. But an unconstitutional statute cannot 
impose an obligation to obey it and, without more, the 
defendant prosecuted for violation of the statute may 
assert the defense of invalidity in the criminal prosecu­
tion. Thomas v. Collins, supra; Cantwell v. Connecti­



[ 21 ]

cut, supra; Royall v. Virginia, supra. See also Morgan v. 
Virginia, supra; DeJonge v. Oregon, supra; Miller v. 
Commonwealth, supra; Louthan v. Commonwealth, 
supra; Foster v. Commonwealth, Porter v. Common­
wealth, supra. The rule is the same whether the uncon­
stitutionality of the law appears on its face or arises from 
its application in the particular situation. Royall v. Vir­
ginia, supra. See also Foster v. Commonwealth, Porter v. 
Commonwealth, supra.

In Royall v. Virginia, supra, there were statutes re­
quiring- attorneys practicing in the state to obtain a 
special “revenue license”  and constituting practice with­
out such a license a misdemeanor. When this legislation 
was enacted, Virginia law permitted license fees to be 
paid in either “ tax due coupons”  o f the state or money. 
Virginia subsequently enacted another statute requiring 
license fees to be paid “ in lawful money o f the United 
States.”  Royall applied for a revenue license, tendering, 
partly in “ tax due coupons”  and partly in money, the 
amount of the license fee. The license was refused. 
Royall then engaged in practice without the license and 
was prosecuted for doing so. The Supreme Court of the 
United States held that the statute requiring payment 
in money, as applied to this case, was unconstitutional 
as impairing the obligations of a contract. (116 U.S. at 
578-582.) The Commonwealth nevertheless pressed the 
same contention made here, to which the Court gave 
full and complete answers (116 U.S. at 582-583) :

“ Admitting this, it is still contended, on behalf o f 
the commonwealth, that it was unlawful for the 
plaintiff in error to practice his profession without a 
license, and that his remedy was against the officers



[ 2 2 ]

to compel them to issue it. It is doubtless true, as a 
general rule, that where the officer whose duty it is 
to issue a license refuses to do so, and that duty is 
merely ministerial, and the applicant has complied 
with all the conditions that entitle him to it, the 
remedy by mandamus would be appropriate to com­
pel the officer to issue it. That rule would apply to 
cases where the refusal o f the officer was willful and 
contrary to the statute under which he was com­
missioned to act. But here the case is different. The 
action of the officer is based on the authority of an 
act of the general assembly of the state, which, al­
though it may be null and void, because unconstitu­
tional, as against the applicant, gives the color of 
official character to the conduct of the officer in his 
refusal; and although, at the election of the aggrieved 
party, the officer might be subjected to the com­
pulsory process of mandamus to compel the perform­
ance of an official duty, nevertheleess the applicant, 
who has done everything on his part required by the 
law, cannot be regarded as violating the law if, 
without the formality of a license wrongfully with­
held from him, he pursues the business of his calling, 
which is not unlawful in itself, and which, under the 
circumstances, he has a constitutional right to prose­
cute. As to the plaintiff in error the act o f the gen­
eral assembly o f the state of Virginia forbidding 
payment of his license tax in its coupons, receivable 
for that tax by a contract protected by the constitu­
tion of the United States is unconstitutional and its 
unconstitutionality infects and nullifies the antecedent 
legislation o f the state, of which it becomes a part, 
when applied, as in this case, to enforce an uncon­



[ 23 ]

stitutional enactment against a party, not only with­
out fault, but seeking merely to exercise a right 
secured to him by the constitution. It is no answer 
to the objection o f unconstitutionality, as was said 
in Poindexter v. Greenhorn, ubi supra, [114 U.S. 
270, 295, (1885)] ‘that the statute whose applica­
tion in the particular case is sought to be restrained, 
is not void on its face, but is complained of only 
because its operation in the particular instance works 
a violation of a constitutional right; for the cases 
are numerous where the tax laws of a state, which in 
their general and proper application are perfectly 
valid, have been held to become void in particular 
cases, either as unconstitutional regulations of com­
merce, or as violations of contracts prohibited by 
the constitution, or because in some other way they 
operate to deprive the party complaining of a right 
secured to him by the constitution of the United 
States.’

“ In the present case the plaintiff in error has been 
prevented from obtaining a license to practice his 
profession, in violation of his rights under the con­
stitution of the United States. To punish him for 
practicing it without a license thus withheld is 
equally a denial of his rights under the constitution of 
the United States, and the law under the authority o f 
which this is attempted must on that account and in 
his case be regarded as null and void.”

The Royall case and the instant case are strikingly 
similar in several respects:

(1 )  In the Royall case, like here, two different laws had



[ 2 4 ]

conjunctive operation. One was the law requiring the 
revenue license and its companion section making it a 
misdemeanor to practice without the license. The other 
was the statute requiring payment of the license fee in 
money, which conflicted with the Federal Constitution. 
The prosecution, o f course, was under the misdemeanor 
section, which was valid on its face. Nevertheless, it was 
held that the prosecution could not be maintained. The 
Court recognized that the laws there involved, like those 
here involved, had an integral operation upon the de­
fendant and the situation he occupied. Consequently, it 
was held that the unconstitutionality of the statute re­
quiring payment in money “ infects and nullifies the 
antecedent legislation o f the state of which it becomes a 
part, when applied, as in this case, to enforce an uncon­
stitutional enactment against a party, not only without 
fault, but merely seeking to exercise a right secured to 
him by the constitution.”

(2 )  It was there contended, like in the Poulos case, that 
Royall should have pursued his civil remedy against the 
officers to compel the issuance o f the license, and that 
Royall was nonetheless guilty because he practiced with­
out the license. This claim was rejected. The Court 
pointed out that mandamus would lie where the action 
of the officer was wilful and contrary to the statute 
under which he acted, but that in the case under considera­
tion, like in the instant case, “ The action of the officer 
is based upon the authority of an act o f the general 
assembly of the state, which, although it may be null 
and void, because unconstitutional, as against the appli­
cant, gives the color of official character to the conduct 
of the officer in his refusal.” So, while, as here, Royall 
might, at his election, have initiated civil proceedings to



[ 2 5 ]

compel the issuance of the license, ‘ ‘nevertheless the appli­
cant, who has done everything on .his. part required, by the 
law, cannot be regarded as violating the law if, without 
the formality of. a license wrongfully withheld from him, 
he pursues the business of his calling, which is not 
unlawful in itself and which, under the circumstances, 
he has a constitutional right to prosecute.”  Similarly, de­
fendant may assert his defense in the instant prosecution.

(3 ) As stated before, the misdemeanor section, like 
the compulsory attendance, laws here, involved, was valid 
on its face, and invalidity developed through application 
to the particular case. That made no difference. “ It is 
no answer to the objection o f unconstitutionality . 
‘that the statute whose application in the particular case 
is sought to be restrained, is not void on its face, but is 
complained of only because its' operation in the particular 
instance works a violation of constitutional right.’ ”  The 
same conclusion necessarily follows: in the instant case.

(4 )  The Court significantly stated that Royall had 
already been prevented from, obtaining a license to prac­
tice his profession, in violation of his constitutional 
rights, and that “ To punish him for practicing it without 
a license thus withheld is equally a denial o f hisr rights 
under the constitution o f the United States, and the law 
under the authority of which this is attempted must on 
that account and in his case be regarded as null and void.”  
The same considerations obtain in the instant case.

Additional authorities might be considered. But. the 
analogy of the Royall case is complete. It is strengthened 
by the fact that in the Poulos case the Court took great 
pains to distinguish it, and other cases like it, on the 
ground that, unlike the Poulos case, the laws upon which



[ 2 6 ]

the prosecutions were based were unconstitutional either 
on their face or in application.

The remaining cases cited by the Commonwealth are 
inapposite. None involved a prosecution based on a void 
law.

It is submitted that the Commonwealth’s contention 
in this regard is without merit.

CONCLUSION

For the reasons stated herein and in his opening brief, 
defendant respectfully submits that the judgment com­
plained o f is erroneous and should be reversed.

Respectfully submitted,

Oliver W . H ill,
Spottswood W . Robinson, III, 
Martin A. Martin,
Counsel for Plaintiff in Error.

623 North Third Street,
Richmond 19, Virginia.