Patterson v. Bailey Petition of City of Jackson

    IN  T H E

S U P R E M E  EO U R T DF T H E  U N I T E D  S T A T E S
OCTOBER TERM, 1963

No.

JOE T. PATTERSON, ET AL, Petitioners,

vs.

SAMUEL BAILEY, ET AL, Respondents.

PETITION OF CITY OF JACKSON; ALLEN THOMP­
SON, DOUGLAS L. LUCKEY AND THOMAS B. MAR­
SHALL, COMMISSIONERS OF THE CITY OF JACK- 
SON, AND W. D. RAYFIELD, CHIEF OF POLICE OF 
THE CITY OF JACKSON, AND JACKSON MUNICI­
PAL AIRPORT AUTHORITY, A PUBLIC BODY COR­
PORATE, FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 
FIFTH CIRCUIT.

E . W .  S t e n n e t t ,
Jackson City Attorney,
Jackson, Mississippi,

T h o m a s  H. W a t k in s ,
Suite 800—Plaza Building, 
Jackson, Mississippi,

Attorneys for the City of 
Jackson and Officials.

J o h n  M. K tjyk en dalh , J k .,
Suite 829—Deposit Guaranty 
Bank Bldg.,
Jackson, Mississippi,

Attorney for Jackson Municipal 
Airport Authority.



INDEX
Page

Jurisdiction and Opinions Below................................  1
Jurisdiction ..................................................................  3
Questions Presented..................................................... 4
Statement ...................................................................... 5
Reasons for Allowance of W rit.................................... 10
1. The ruling of the United States Court of Appeals

for the Fifth Circuit that this was a proper class 
action and that Respondents were entitled to class 
relief is in direct conflict with decisions of this 
Court and in direct conflict with prior decisions of 
the Circuit Court of Appeals of the Fifth Circuit 
and in direct conflict with prior decisions of other 
Courts of Appeal in other Circuits........................  10

2. The holding of the Court of Appeals of the Fifth
Circuit that Respondents for themselves and/or 
for the class were entitled to injunctive relief 
under the facts and circumstances here is in direct 
conflict with decisions of this Court and of the 
Courts of Appeal of other circuits and with prior 
decisions of the Fifth Circuit Court of Appeals. . 22
(a) A Court will not enjoin the enforcement of

state criminal statutes, even if unconstitu­
tional, unless the same have been enforced 
against petitioner or petitioner is threatened 
with enforcement thereof and he is in clear 
and imminent danger of immediate arrest
thereunder ........................................................  23

(b) The refusal of injunctive relief was within the
discretion of the trial judge which was not 
abused ................................................................ 24

(c) An injunction should only issue with great 
caution and only in exceptional circumstances
to prevent immediate irreparable injury. . . .  25

(d) The Court cannot enjoin the future enforce­
ment of constitutional breach of the peace 
statutes ..............................................................  26

—9492-0



11 INDEX

(e) The denial of injunctive relief against the Mu­
nicipal Airport Authority by the Trial Judge
was peculiarly within his discretion.................  30

3. Even if any relief should have been granted 
against the City officials, which is denied, no in­
junctive relief should have been granted against 
the City of Jackson and the Municipal Airport
Authority ................................................................  31

Conclusion ....................................................................  32

Cases:
American Federation of Labor v. Watson, 90 L.ed.

873, 327 U.S. 582....................................................... 23,26
Anderson v. Kelly, 32 F.R.D. 355.................................  12
Bailey v. Patterson, 368 U.S. 347, 7 L.ed.2d 332. . . .  12
Bailey v. Patterson, 369 U.S. 31, 7 L.ed.2d 512.........  12
Bailey v. Patterson, 7 L.ed.2d 332, 368 U.S. 346. . . .  23
Barnes v. City of Gadsden, C.A. 5, 174 F.Supp. 64,

affirmed 268 F.2d 593, cert. den. 4 L.ed.2d 186 . . . . 24
Bates v. Batte, C.A. 5, 187 F.2d 142, cert. den. 96 L.

Ed. 616, 342 U.S. 815...............................................  18
Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 85 L.ed.

577 .............................................................................  25,26
Bowles v. Huff, C.A. 9', 146 F.2d 428........................  24
Bradford v. Hurt, C.A. 5, 84 F.2d 722......................  23, 30
Brotherhood v. Missouri-Kansas-T. R. Co., 4 L.ed.2d

1379, 363 U.S. 528..................................................... 24
Brown v. Board of Trustees, 187 F.2d 20.................  15
Brown v. Ramsey, C.A. 8, 185 F.2d 225..................... 12
Bush v. Orleans Parish School Board, C.A. 5, 308

F.2d 491, 503..............................................................  17
Bush v. Orleans Parish School Board, E.D.La., 138

F.Supp. 337................................................................  17
Carroll v. Associated Musicians of Greater New York,

C.A. 2, 316 F.2d 574................................................... 12
Carson v. Warlick, C.A. 4, 238 F.2d 724, cert. den. 353

U.S. 910, 1 L.Ed. 2d 664...........................................  17
Casey v. Plummer, 353 U.S. 924, 1 L.ed.2d 719. . . .  16

Page



Page
Charlton v. Hialeah, C.A. 5, 188 F.2d 421................. 32
City of Montgomery v. Gilmore, C.A. 5, 277 F.2d 364 16, 20
Civil Bights Cases, 109 U.S. 3, 27 L.ed. 836.............  19
Clark v. Thompson, 206 F.Supp. 535, affirmed 313 

F.2d 637; petition for certiorari denied December
16, 1963................................................................... 15, 24, 25

Cohen v. Public Housing Administration, C.A. 5, 257
F.2d 73.......................................................................  20

Coleman v. Miller, 307 U.S. 433, 83 L.ed. 1385.........  21
Collins v. Texas, 223 IJ.S. 288, 56 L.ed. 439.............  21
Conley v. Gibson, 29 F.R.D. 519.................................. 12
Cook v. Davis, C.A. 5, 178 F.2d 595............................  18
Covington v. Edwards, C.A. 4, 264 F.2d 780, cert. den.

4 L.Ed.2d 79, 361 IJ.S. 840.......................................  18
Davis <& F. Mfg. Co. v. Los Angeles, 189 U.S. 207, 47

L.ed. 778, 23 S. Ct. 498...........................................  28
Dawley v. City of Norfolk, 159 F.Supp. 642, affirmed 

260 F.2d 647, C.A. 4, Certiorari denied, 3 L.ed.2d
636, 359 U.S. 935....................................................12,25,26

Denny v. Bush, 367 U.S. 908, 81 S.Ct. 1917, 6 L.Ed.2d
1249 ....................................................................................17

Derrington v. Plummer, 240 F.2d 922, certiorari
denied sub nom........................................................  16

Douglas v. Jeamnette, 319 U.S. 157, 87 L.ed. 1324. . . .  27, 29 
Empire Pictures Distributing Company v. City of

Fort Worth, C.A. 5, 273 F.2d 529..........................  23,29
Erie Railroad v. Williams, 233 U.S. 68, 58 L.ed 1155 21
Evers v. Dwyer, 358 U.S. 202, 3 L.ed.2d 222, 79 S Ct

178 .............................................................................  13,14
Fenner v. Boykin, 271 U.S. 240, 70 L.ed. 927, 46 S. Ct.

492 .............................................................................  28
First National Bank v. Albright, 52 L.ed. 614, 208 U.S.

548 .............................................................................  24
Gaines v. Canada, 305 U.S. 337, 83 L.ed. 208...............  19
Gremillion v. U.S., 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.

2d 75...........................................................................  17
Haynes v. Shuttlesworth, 310 F.2d 303.......................  16
Hecht Company v. Bowles, 321 U.S. 321, 88 L.ed. 754 24

INDEX 111



IV INDEX

Hewitt v. Jacksonville, C.A. 5, 188 F.2d 423.............  32
Hickey v. Illinois Central Rairoad, C.A. 7, 278 F.2d

529 ....................................................... ...................  12
Holland v. Board of Public Instruction, C.A. 5, 258

F.2d 730......................................................................  20
Holt v. Raleigh City Board, C.A. 4, 265 F.2d 95, cert.

den. 4 L.Ed.2d 63, 361 U.S. 818..............................  18
Jeffrey Manufacturing Company v. Blagg, 235 U.S.

571, 59 L.ed. 364. ...................................................... 21
Johnson v. Crawfis, 128 F.Supp. 230..........................  12
Johnson v. Stevenson, C.A. 5, 170 F.2d 108, cert. den.

93 L.End. 359, 335 U.S. 801...................................... 18
Joint Anti-Fascist Refugee Com, v. McGrath, 95 L.ed.

817, 341 U.S. 123...................................................... 20
Kansas City v. Williams, C.A. 8, 205 F.2d 47. 12,25
M. & 0. R.R. Co. v. State, 153 U.S. 486, 38 L.ed. 793 20
Matthews v. Rodgers, 284 U.S. 529, 530, 76 L.ed. 454,

455, 52 S. Ct. 217...................................................... 28
McCabe v. Atchison, 59 L.ed. 169, 235 U.S. 151. . . 11,14,15
McGhee v. Sipes, 92 L.ed. 1161, 34 U.S. 1 ......  19
McKissick v. Durham City Board, 176 F. Supp. 3. . . . 18
Mitchell v. United States, 313 LT.S. 80, 93, 85 L.ed.

1201, 1210, 61 S Ct 873............................................  13
Monroe v. Pape, 365 U.S. 167, 5 L.ed.2d 492.............  32
Oivnbey v. Morgan, 65 L.ed. 837, 256 U.S. 94...........  20
Parham v. Dove, C.A. 8, 271 F.2d 132........................  17
Peay v. Cox, C.A. 5, 190 F.2d 123, cert. den. 96 L.ed

671 .............................................................................. 18,24
Poe v. Ullman, 6 L.ed.2d 512, 367 U.S. 497................. 23
Potts v. Flax, C.A. 5, 313 F.2d 284, affirming 204 F.

Supp. 458.................................................................... 17,18
PUmmer v. Casey, 148 F.Supp. 326 sub nom.........  16
Redlands Foothill Groves v. Jacobs, 30 F.Supp. 995 24
Redlands v. Jacobs, 30 F.Supp. 995.............................  26
Reliable Transfer v. Blanchard, C.A. 5, 145 F.2d 551 25
Rock Drilling, Blasting, etc. v. Mason <& Hanger Co.,

C.A. 2, 217 F.2d 687....................................' ............ 12
School Board v. Allen, C.A. 4, 240 F.2d 59.............  20

Page



IHDEX V

Shelley v. Kraemer, 92 L.ed. 1161, 34 U.S. 1 .............  19
Shuttlesworth v. Birmingham Board, 162 F.Supp.

372, affirmed per curiam 3 L.ed.2d 145, 358 U.S. 101 19-20 
Shuttlesworth v. Gaylord, 202 F.Supp. 59, affirmed

sub iiom ...................................................................... 16
Spielman Motor Sales v. Dodge, 79 L.ed. 1322, 295

U.S. 89.......................................................................  23,25
Stefanelli v. Minyard, 96 L.ed. 138, 342 U.S. 117. . . .  23, 30 
Sterling v. Constantin, 287 U.S. 378, 77 L.ed. 375. . . 25,26
Sweatt v. Painter, 339 U.S. 629, 94 L.ed. 1114.........  19
Tennessee Electric Power v. Tennessee Valley, 306

U.S. 118, 83 L.ed. 543............................................... 21
Thornhill v. Alabama, 310 U.S. 105, 60 S. Ct. 736, 84

L.Ed. 1093.................................................................. 30
Tileston v. Ullman, 318 U.S. 44, 87 L.ed. 603.............  21
Toomer v. Witsel, 334 U.S. 385, 92 L.ed. 1460, 93

L.ed. 389...................................................................... 21
Troup v. McCart, C.A. 5, 238 F.2d 289..................... 15
Turner v. Memphis, 7 L.ed.2d 762, 369 U.S. 350. . . .  14
U.S. v. Grant, 346 U.S. 629, 97 L.ed. 1303................. 31
United Electrical Workers v. Baldwin, 67 F.Supp.

235 .............................................................................  30
United States v. City of Jackson, C.A. 5, 318 F.2d 1 6
Walling v. Buettner dc Co., C.A. 7, 133 F.2d 306. . . .  24
Watson v. Buck, 85 L.ed. 1416, 313 U.S. 387.............  23
Watson v. Buck, 313 U.S. 387, 85 L.ed. 1460.............  30
Wilson v. Schnettler, 365 U.S. 381, 5 L.ed.2d 620. . . .  30

Statutes:
28 U.S.C. 1343(3).......................................................  1
28 U.S.C. 2281............................................................. 1
28 U.S.C. 2284............................................................. 1,2
42 U.S.C. 1983............................................................. 2
28 U.S.C. 1253............................................................. 2
28 U.S.C. 1343(3)..........................................................  32
42 U.S.C. 1983.............................................................. 32
204 F.Supp. at 460......................................................  18
313 F.2d at 288............................................................  18

Page



VI INDEX

Sections 7545-32............................................................  9
Sections 2087.5, 2087.7, 2089.5.................................... 6
Rule 23( i ) ...................................................................... 2
138 F.Supp. 33..............................................................  17
204 F.Supp. 568, affirmed 308 F.2d 491, 503.............  17
369 U.S. 31, 7 L.ed.2d 512...........................................  13
Statutes of the State of Mississippi, Sections 2351,

2351.5, 2351.7, 7784, 7785, 7786, 7786-01.................  5-6
Rule 23 of the Rules of Federal Practice................. 21

Miscellaneous:
Fourteenth Amendment.............................................. 2,19,20
Opinion, 199 F. Supp. 595.......................................... 2
Opinion, 368 U.S. 346, 7 L.ed.2d 332........................  2
District Court, 369 U.S. 31, 7 L.ed.2d 512.............  2
Opinion, Fifth Circuit, 323 F.2d 201........................ 3, 6, 21
Title 28, United States Code, Section 1254(1).........  3
Civil Rights A ct............................................................  32
Fifth Circuit, 369 U.S. 31, 7 L.ed.2d 512................... 13

Page

United States Court of Appeals for the Fifth Cir­
cuit ..................................... 1, 3,12,13,15,16, 21, 22, 31,32



IN' THE

S U P R E M E  EO U R T DF T H E  U N I T E D  STAT ES
OCTOBER TERM, 1963

N o .

JOE T. PATTERSON, ET AL, Petitioners,

vs.

SAMUEL BAILEY, ET AL, Respondents.

PETITION OF CITY OF JACKSON; ALLEN THOMP­
SON, DOUGLAS L. LUCKEY AND THOMAS B. MAR­
SHALL, COMMISSIONERS OF THE CITY OF JACK- 
SON, AND W. D. RAYFIELD, CHIEF OF POLICE OF 
THE CITY OF JACKSON, AND JACKSON MUNICI­
PAL AIRPORT AUTHORITY, A PUBLIC BODY COR­
PORATE, FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 
FIFTH CIRCUIT.

Petitioners, some of the Appellees in the Court below, 
pray that a Writ of Certiorari issue to review the judgment 
of the United States Court of Appeals for the Fifth Cir­
cuit entered on September 24th, 1963, followed by the Order 
of said Court denying a Petition for Rehearing entered on 
November 8th, 1963.

Jurisdiction and Opinions Below

The basis for the jurisdiction of the courts below was 
2 8  U.8.C. 1 3 4 3 (3 ) ,  28  U.S.C. 2281  and 28 U.8.C. 2284 , the 
Complaint further alleging that the action was authorized (l)

(l)



2

by 42  U.S.C. 1983 , the action being one for alleged depriva­
tion of rights under the Fourteenth Amendment to the Con­
stitution of the United States. A Three-Judge Court was 
organized under 2 8  U.S.C. 2284.

An Order of the Three-Judge Court retaining juris­
diction but staying further proceedings awaiting State 
Court actions or decisions was entered November 17th, 
1961 (R. 705). A copy thereof is submitted as Appendix 
“ A ” .1 A copy of the Opinion of the Three-Judge Court 
(R, 630), reported 199 F. Supp. 595, is submitted as Ap­
pendix “ B ” . A copy of the Dissenting Opinion (R. 667) 
is submitted as Appendix “ C” .

An appeal was taken to this Court pursuant to 28  U.S.C. 
1253  (R. 706). Pending the appeal a Motion was filed 
in this Court for an injunction to stay the prosecution of 
criminal cases in the Courts of Mississippi. The Motion 
for injunctive relief pendente lite was denied by this Court 
on December 18th, 1961, the Opinion being reported in 
368 U.S. 346, 7 L.ed.2d 332. A copy thereof is submitted 
as Appendix “ D ” .

On the appeal to this Court the Judgment of the Three- 
Judge Court was vacated, this Court holding that the 
Three-Judge Court was unnecessary, and the cause was 
remanded to the District Court by decision of February 
26th, 1962, reported 369 U.S. 31, 7 L.ed.2d 512. Copy 
thereof is submitted as Appendix “ E ” .

The District Court of the United States for the Southern 
District of Mississippi, Jackson Division, entered a Find­
ings of Fact, Conclusions of Law, and Declaratory Judg­
ment on May 3rd, 1962 (R. 732). The Opinion and Declara­
tory Judgment is not published and a copy thereof is sub­
mitted as Appendix “ F ” . 1

1 Appendices, because voluminous, are separately printed and presented 
herewith under Rule 23(i).



3

An oral amendment to the Findings of Fact was made 
by the District Judge on May 31st, 1962 (R. 843-5), not 
published, and a copy thereof is submitted as Appen­
dix “ G” .

On July 25th, 1962, the District Court entered Supple­
mental Findings of Fact, Conclusions of Law and Declara­
tory Judgment (R. 785), not published. A copy thereof 
is submitted as Appendix “ H ” .

On August 24th, 1962, there was entered in the District 
Court below an Order sustaining in part and overruling 
in part Plaintiff’s Motion that the Court amend its Sup­
plemental Findings of Fact, Conclusions of Law and De­
claratory Judgment (R. 846). It has not been published 
and a copy thereof is submitted as Appendix “ J ” . The 
Opinion of the Court which formed the basis thereof, also 
dated August 24th, 1962, is in letter form (R. 850) and 
unpublished. A copy thereof is submitted as Appen­
dix “ I ” .

The Decision of the District Court for the Southern 
District of Mississippi, Jackson Division, was reversed 
by the Fifth Circuit Court of Appeals on September 24th, 
1963. The Opinion is reported in 323 F.2d 201. Copy of 
the Opinion is submitted as Appendix “ K ” . Copy of 
the Judgment of said Court is submitted as Appendix “ L ” .

A Petition for Rehearing was denied by the Court of 
Appeals of the Fifth Circuit without opinion on Novem­
ber 8th, 1963. Copy of the Order is submitted as Appen­
dix “ M ” .

The Order of the Court below staying the mandate for 
sixty days, dated November 15th, 1963, is submitted as 
Appendix “ N ” .

Jurisdiction

The jurisdiction of this Court is invoked under Title 28, 
United States Code, Section 1254(1).



4’

Questions Presented

The specific questions presented are:

1. Whether the three Respondents, Samuel Bailey, 
Joseph Broadwater and Burnett L. Jacob, have any right 
to maintain a class action on behalf of other Negroes 
when they themselves have admittedly not been discrimi­
nated against on account of their race by Petitioners and 
have not been deprived by them of any rights under the 
Fourteenth Amendment to the Constitution and where 
they are thus not members of the class for which relief 
was sought.

2. Whether under the facts of this case Respondents, 
although personally entitled to non-discriminatory use of 
transportation facilities, which they obtained by Declara­
tory Judgment in the District Court, were entitled to injunc­
tive relief either personally or for a class against enforce­
ment of Segregation Statutes of the State of Mississippi 
or Ordinances of the City of Jackson.

3. Whether under the facts of this case Respondents, 
although personally entitled to non-discriminatory use of 
transportation facilities which they obtained by Declaratory 
Judgment in the District Court, were personally or for a 
class entitled to broad sweeping injunctive relief against 
any policy, practice, custom or usage of segregation of 
transportation facilities by Petitioners allegedly under 
color of the “ Breach of the Peace”  statutes of the State of 
Mississippi.

4. Whether Respondents were entitled in this Civil Rights 
action to any injunctive relief against the City of Jackson 
or the Jackson Municipal Airport Authority, a public body 
corporate.

The serious underlying questions involved include: (1) 
Whether or not our established jurisprudence applicable



5

to injunctive relief and class suits is now totally inappli­
cable in civil rights cases; (2) Whether a city by injunc­
tion against all of its law enforcement officers can be for­
bidden to prevent disorderly conduct and breaches of the 
peace where a Negro is involved on penalty of its right 
to so do in individual instances being triable in a Federal 
Court in Contempt of Court proceedings with the risk 
of criminal punishment for a possible error of judgment 
on the part of the police officers. The necessity for local 
police control during racial demonstrations has been amply 
demonstrated; and (3) Whether an individual Negro has a 
personal right under the Fourteenth Amendment not only 
to the use of any public facility he desires but whether he 
also has a constitutional right to the use of completely inte­
grated facilities.

Statement

Three individual Negroes, Respondents here, filed a Com­
plaint in the United States District Court for the Southern 
District of Mississippi, Jackson Division, on behalf of all 
other Negroes similarly situated, against the Attorney Gen­
eral of the State of Mississippi; the City of Jackson and 
the Mayor and Commissioners thereof and the Chief of 
Police thereof; the Jackson Municipal Airport Authority; 
the Continental Southern Lines; Southern Greyhound 
Lines; Illinois Central Railroad; Jackson City Lines; and 
Cicero Carr, operator of a restaurant at the Jackson Munic­
ipal Airport.

Respondents alleged that Negroes had been deprived of 
rights under the Fourteenth Amendment to the Constitu­
tion of the United States by the Defendants below and 
sought both preliminary and permanent injunctions against 
said Defendants enjoining them from:

(A) Enforcing certain Segregation Statutes of the State 
of Mississippi, i.e. Sections 2351, 2351.5, 2351.7, 7784, 7785,



6

7786, 7786-01, copies of which are separately submitted as 
Appendix “ 0 ” , together with a 1956 Ordinance of the City 
of Jackson, copy of which is submitted as Appendix “ P ” . 
It was alleged that said Statutes require segregation of 
facilities of carriers and that they violated the Fourteenth 
Amendment to the Constitution.

(B) Enforcing any policy, practice, and custom ana 
usage of segregating passengers of any facility of a public 
carrier and any policy, custom or usage of liarrassing or 
intimidating Negroes in the exercise of their Federally pro­
tected right to use interstate and intrastate transportation 
facilities and services without discrimination or segrega­
tion, the Complaint alleging that Defendants in so doing 
were acting under color of the “ Breach of the Peace”  
Statutes of Mississippi, i.e. Section 2087.5, 2087.7 and 2089.5, 
copies of which are submitted as Appendix “ Q”  herewith.

(C) Posting or permitted to be posted signs designating 
separate facilities in or on any terminal or sidewalk sur­
rounding the same.

The Court of Appeals of the Fifth Circuit acting through 
Circuit Judges Wisdom and Hayes, Circuit Judge Cameron 
dissenting, granted injunctive relief “ as prayed for”  
against all the carriers. None of the carriers have joined 
in this Petition for Writ of Certiorari. The injunctive re­
lief “ as prayed fo r”  was granted against those Petitioners 
insofar as persons using any facilities of the Jackson Munic­
ipal Airport Authority or the buses of the bus company 
Defendants were concerned.2 323 F.2d 201; Appendix “ K ”  
submitted herewith.

2 Question of injunctive relief against the City and its officials for 
enforcing or encouraging racial segregation in the use of terminal facilities 
of the carriers, except the Jackson City Bus Line and the Municipal A ir­
port Authority, having, the court stated, been eliminated by the decision 
in United States V. City o f Jackson, C.A. 5, 318 F.2d 1, brought by the



7

None of the carriers being Petitioners here, a large por­
tion of the evidence in the record is eliminated. There is 
here involved none of the alleged acts of any of the car­
riers, including the Jackson City Lines, in maintaining any 
racial signs or enforcing or encouraging any racial segre­
gation in their terminals or facilities. Also any testimony 
as to any incidents occurring outside of the City of Jack- 
son are eliminated, i.e. any incidents not involving officials 
of the City of Jackson or the Municipal Airport Authority.

That there was no ground for any class action was 
frankly and freely admitted by Respondents themselves. 
Each of these three claimants testified that they had never 
been arrested under any of the statutes or under the ordi­
nance complained of, nor had they been threatened with or 
in danger of any arrest under such statutes or ordinance. 
They went further and testified that they themselves had 
never been deprived of or denied the indiscriminate use 
of any facility of any Defendant. They also admitted that 
they had not consulted with any other members of the 
class they purported to represent before the action was 
brought and that they knew that all members of the alleged 
class did not approve of their action or did not agree with 
the position being taken by them in the action. (Broad­
water, R. 109-11; Jacob, R. 120-22; Bailey, R. 140-42)

Not only did Respondents, Plaintiffs below, admit that 
they themselves had never been arrested under any of the 
“ Segregation Statutes” , but no other witness testified that 
he had ever been arrested under any of these statutes or 
the City Ordinance complained of or been threatened with 
any arrest thereunder and the undisputed testimony of the 
City officials was that they had never arrested or threatened

United States of America under the Interstate Commerce Commission Act. 
Also eliminated was the question o f racial signs maintained by the City 
o f Jackson surrounding terminals, which had been removed as a result of 
said decision.



arrest of anyone under these statutes (E. 348, 354-6, 359). 
The unconstitutionality of these statutes was thoroughly 
recognized by city officials and there was no suggestion of 
any intent on the part of the City to attempt to enforce 
such unconstitutional statutes. The Mayor testified that 
the City had no objection to Negroes using any facility of 
any carrier where peace and quiet could be maintained and 
there would be no disturbances (E. 355).

The issue of the existence of the City signs on side­
walks surrounding terminals being removed and eliminated, 
the only evidence against the City or its officials dealt with 
arrests of Freedom Eiders under the “ Breach of the 
Peace”  statutes. Unquestionably, there were a substantial 
number of arrests of these Freedom Eiders occurring after 
April, 1961, when the Freedom Eiders made their much 
publicized invasion of Mississippi, all such arrests being- 
made under the Breach of the Peace Statutes. The dis­
orders and breaches of the peace and disturbances caused 
by these same Freedom Eiders in Alabama and the fact that 
they were coming into Mississippi to create the same dis­
turbances had become public knowledge in the State of 
Mississippi (E. 492-507, 507-513, 516-519). Due objection 
was made to the evidence of these arrests in this cause on 
the ground that it was a collateral attack on criminal ac­
tions pending in the State court (E. 474, et seq). These 
cases are still pending in the State Courts and several of 
them have now been submitted to the Supreme Court of the 
State of Mississippi and a decision may be reached therein 
at any time.3

In each instance of such arrest for breaches of the peace 
sufficient crowds had congregated under such circumstances 
as to indicate to local officials probable breaches of the

3 I f  such a decision is handed down prior to a decision on this Petition, 
copies o f  the opinions will be submitted as a supplement hereto.



9

peace. The police officers in their opinion were convinced 
in each instance that there would have been trouble and 
there would have been a breach of the peace had the police 
not taken action. Such action prevented any serious dis­
turbances in Mississippi. In each instance the police, be­
fore any arrest, ordered the crowds or groups dispersed. 
In each instance only those who refused to obey the order 
of the police to disperse or move on were arrested. In 
each instance in arrests of the Freedom Riders both white 
and colored were arrested at the same time, i.e. all were 
arrested who refused to move on at the order of the offi­
cers at a time when and under circumstances such that 
a breach of the peace could be occasioned by the failure of 
the crowd to obey the orders of the police (R. 370-6, 378-9, 
381-2, 386-8, 444-49, 454-56, 459-46, 185-6, 261-71).

However, we again point out that none of the Respond­
ents were among the groups so arrested under the “ Breach 
of the Peace”  statutes or even in the crowd at the time 
or observed any such arrest.

As to the Municipal Airport Authority, a separate statu­
tory authority created by Sections 7545-32, et seq. of the 
Code pertinent portions of which are submitted as Ap­
pendix “ R ”  hereto: The proof showed that there had been 
racially discriminatory signs in the airport terminal. How­
ever, prior to the final decree of the Court below and on 
June 4th, 1962, these signs had all been removed from the 
airport (R. 770). None of the Segregation Statutes were 
applicable to the airport. The Airport Authority had no 
jurisdiction over the enforcement of law or arrests in the 
airport, a City policeman being assigned to the airport 
and the policeman not taking orders from the Authority. 
'There was no evidence of any arrests in the airport and 
none had been reported to the Authority. The Authority 
had no policy of discrimination. True, the airport restau-



io

rant, operated by Cicero Carr, bad been segregated by 
this lessee of the Airport Authority over whom the Air­
port Authority had no control. However, when Carr re­
fused to conform to the Decree of the District Court to 
discontinue such discrimination and before the final order 
in the District Court, the Authority terminated Carr’s 
lease and filed an affidavit to the effect that in the future 
the Authority itself would operate the restaurant and would 
operate it without discrimination (R. 810-11).

Again Respondents admittedly had been subjected to 
no such discrimination themselves and had not been de­
prived of any use of any airport facility.

The District Court made a Finding of Fact and Law 
that this was not a proper class action and that no relief 
could be granted other than that to which the Respondents 
were personally entitled. The Court and adjudged that 
each of the three! plaintiffs had a right to unsegregated 
use of any transportation facility and were given relief 
by way of declaratory judgment. The Court held how­
ever the Plaintiffs were not entitled to any injunctive 
relief but jurisdiction was retained for the entry of fur­
ther orders and relief as might be subsequently appropriate 
(R. 740, Appendices F, G, H, I and J).

Reasons for Allowance of Writ

1. The ruling of the United States Court of Appeals for 
the Fifth Circuit that this was a proper class action and 
that Respondents ivere entitled to class relief is in direct 
conflict with decisions of this Court and in direct conflict 
with prior decisions of the Circuit Court of Appeals of 
the Fifth Circuit and in direct conflict with prior decisions 
of other Courts of Appeal in other Circuits.

The decision of the Court of Appeals for the Fifth 
Circuit in this case is in direct conflict with the decision



11

of this Court in McCabe v. Atchison, 59 L.ed. 169, 235 U.S. 
151. There an action was brought by a few Negroes for 
a class injunction against railroad carriers to prevent 
them from complying in any way with a State separate- 
coach law. There the Complainants had never requested 
the Defendants for accommodations in any sleeping cars, 
dining cars or chair cars and Complainants had never 
been notified by the Defendants that they would not be 
furnished to them, when furnished to others, upon reason­
able request and payment of the customary charge. Com­
plainants had thus never been refused accommodations 
equal to those afforded to those of the white race. The 
injunction was sought to be justified on the ground of 
avoiding a multiplicity of suits, the Complaint alleging 
“ . . . there being at least ‘ fifty thousand persons of the 
Negro race in the State of Oklahoma’ who will be in­
jured and deprived of their civil rights ’ ’. The lower Court 
dismissed the Bill and this Court, in affirming the lower 
Court’s decree, stated:

“ . . . The Complainant cannot succeed because 
someone else may be hurt. Nor does it make any dif­
ference that other persons who may be injured are 
persons of the same race or occupation. It is the fact, 
clearly established, of injury to the Complainant—not 
to others, which justifies judicial intervention . . . The 
desire to obtain a sweeping injunction cannot be ac­
cepted as a substitute for compliance with the general 
rule that the complainant must present facts sufficient 
to show that his individual need requires the remedy 
for which he asks. The bill is wholly destitute of any 
sufficient ground for injunction, and unless we are to 
to ignore settled principles governing equitable relief, 
the decree must be affirmed,”



12

The decision of the Court below is in direct conflict with 
Dawley v. City of Norfolk, 159 F.Supp. 642, affirmed 260 
F.2d 647, C.A. 4, Certiorari denied, 3 L.ed.2d 636, 359 U.S. 
935. There an action was brought by a Negro attorney for 
a mandatory injunction requiring the City to remove the 
word “ colored”  from doors of certain restrooms in a 
courthouse building occupied by State Courts and Judges. 
The Court held that this relief could not be secured by 
plaintiff. The District Court Judge pointed out: “ There 
had been no threats or orders to plaintiff with respect to 
using the rest rooms in the state courthouse building.”

The decision of the Circuit Court of Appeals for the 
Fifth Circuit is in direct conflict with decisions of other 
Federal Courts of other Circuits holding that a party can­
not obtain injunctive relief on behalf of a class where he 
is not a member of the class in that he has not been per­
sonally discriminated against or deprived of rights sought 
to be obtained for others or actually suffered any wrongs 
sought to be remedied in the litigation on behalf of the 
class. These Decisions include: Kansas City v. Williams, 
C.A. 8, 205 F.2d 47; Hickey v. Illinois Central Railroad, 
C.A. 7, 278, F.2d 529; Rock Drilling, Blasting, etc. v. Mason 
& Hanger Co., C.A. 2, 217 F.2d 687; Carroll v. Associated 
Musicians of Greater New York, C.A. 2, 316 F.2d 574; 
Brown v. Ramsey, C.A. 8, 185 F.2d 225. See also: Johnson 
v. Cranvfis, 128 F.Supp. 230; Anderson v. Kelly, 32 F.R.D. 
355; Conley v. Gibson, 29 F.R.D. 519.

The decision of the Court of Appeals for the Fifth Cir­
cuit in this case is, we submit, in direct conflict with prior 
decision of this Court in this case, i.e. Bailey v. Patterson, 
368 U.S. 347, 7 L.ed.2d 332, and Bailey v. Patterson, 369 
U.S. 31, 7 L.ed.2d 512. In the first opinion on a Motion 
for an injunction pendente lite to stay the prosecution of 
a number of criminal cases in Mississippi Courts, the Court



13

denied relief on the primary ground that there was no 
justification for the extraordinary remedy and two con­
curring justices, Mr. Justice Black and Mr. Justice Frank­
furter, also pointed out that: “ The three movants are not 
themselves being prosecuted or threatened with prosecu­
tion in Mississippi . . . ”

In the second decision, in overruling the Order of the 
Three-Judge Court that the case he delayed pending a 
State construction of the statutes involved, 369 U.S. 31, 
7 L.ed.2d 512, this Court held that the Respondents lacked 
standing to enjoin prosecutions under the Mississippi 
Breach of the Peace Statutes in that “ They cannot repre­
sent a class of whom they are not a part” .

After the remand of this case after these decisions no 
additional evidence was offered with reference to any dis­
crimination against the Respondents or any matters or 
things making them a member of the class for whom they 
sought relief. This case stands before this Court on this 
issue on exactly the same facts that existed at the time of 
the prior decisions.

The Court of Appeals for the Fifth Circuit apparently 
misconstrues one sentence in the decision of this Court in 
369 U.S. 31, 7 L.ed.2d 512. This Court merely stated: “ But 
as passengers using the segregated transportation facili­
ties they are aggrieved parties and have standing to en­
force their rights to nonsegregated treatment. Mitchell v. 
United States, 313 U.S. 80, 93, 85 L.ed. 1201, 1210, 61 S Ct 
873; Evers v. Dwyer, 358 U.S. 202, 3 L.ed.2d 222, 79 S Ct 
178.”  This Court was clearly only referring to Respond­
ents having a standing to enforce their personal rights, 
not class rights. True, Mitchell v. U.S., supra, and Evers 
v. Dwyer, supra, were class suits. But in each of those 
cases the passenger seeking rights was actually a member 
of the class. For example, in Mitchell v. U.S., supra, the



14

action was brought by a Negro who was himself put off 
of the pullman into a coach on crossing a state line by an 
employee of the carrier. The employee in so doing was 
admittedly engaged in enforcing a State statute. Or, for 
example, in Evers v. Dwyer, supra, the Plaintiff himself 
was ordered to move to the rear of a Memphis bus because 
of his color and upon his refusal two police officers entered 
the bus and ordered him to go to the back of the bus or get 
off and on this order he left the bus.

This Court therefore clearly used these cases as an illus­
tration of the personal rights of Respondents because they 
were public transportation facility cases and in so using 
them this Court at the same time clearly stated that Re­
spondents “ cannot represent a class of whom they are 
not a part. McCabe v. Atchison, T d  S. F. R. Co., 235 U.S. 
151, 162, 163, 59 L.ed. 169. . .”  This Court did no more 
than remand the case for disposition by the District Court 
“ of the appellants’ claims of right to unsegregated trans­
portation service”  i.e. referring to their personal rights. 
It did not hold that they were entitled to class relief.

Note the difference between the order in the prior appeal 
of this case, supra, and in the order of this Court in the 
case of Turner v. Memphis, 7 L.ed.2d 762, 369 U.S. 350. 
There the plaintiff was “ a Negro who was refused non- 
segregated service in the Memphis Municipal Airport res­
taurant”  and who brought the action for himself and other 
Negroes similarly situated. There the plaintiff was a mem­
ber of the class and the order of this Court read: “ . . . The 
case is remanded to the district court with directions to 
enter a decree granting appropriate injunctive relief against 
the discrimination complained.”  Here there was no order 
of this Court remanding the case for class relief or for in­
junctive relief but merely for appropriate personal relief



15

after the Court had pointed out that Respondents were not 
entitled to class relief.

The Court of Appeals for the Fifth Circuit frankly admits 
that the decision in this case is in conflict with prior deci­
sions of that Court, pointing out that it was in conflict with 
Clark v. Thompson, 206 F.Supp. 535, affirmed 313 F.2d 
637. Petition for Certiorari denied December 16,1963. The 
Court of Appeals for the Fifth Circuit adopting the opinion 
of the District Court which used the following language:

“ None of the plaintiffs has been arrested or threat­
ened with arrest under any statute or alleged dis­
criminatory practice attacked in this case. The plain­
tiffs have not been denied any right, privilege or im­
munity claimed by them by any of the defendants . . . 
There is no evidence that they have been denied the 
right to use any public recreational facility in that 
city . . . This is not a proper class action, and no re­
lief may be granted other than that to which the plain­
tiffs are personally entitled . . . The plaintiffs cannot 
make this a legitimate class action by merely calling 
it such . . . Class action cannot be maintained where 
the interests of the plaintiffs . . . are not wholly com­
patible with the interests of those whom they purport 
to represent4. . .”

The decision here is also in conflict with another decision 
of the Court of Appeals of the Fifth Circuit, i.e. Brown v. 
Board of Trustees, 187, F.2d 20, where the Court cited with 
approval McCabe v. Atchison, supra, and pointed out: 
“ . . . it is elementary that he has no standing to sue for the 
deprivation of the civil rights of others.”  The Court there 
also pointed out: “ A suit to supervise and control by in­

4 Even in a class suit claimant’s interest must be wholly compatible with 
that of the class. Troup v. McCarty C.A. 5, 238 F.2d 289.



16

junction the general conduct of a political subdivision of the 
state, this suit has for its purpose, not the mere according 
of a specific right which has been denied, but the establish­
ment of a sort of general government by injunction over the 
school district in respect of its schools and school system 
. . . Such an injunction . . . will not usually he granted.”

We submit that the Court of Appeals of the Fifth Circuit 
in the opinion here is in error in saying the decisions of that 
Court are divided on this question in that there is no Fifth 
Circuit decision authorizing a class suit under the cir­
cumstances here.

In support of that position the Court of Appeals of the 
Fifth Circuit refers to Derrington v. Plummer, 240 F.2d 
922, certiorari denied sub nom Casey v. Plummer, 353 U.S. 
924, 1 L.ed.2d 719. The facts in that case are stated in the 
District Court opinion in 148 F.Supp. 326 sub nom Plummer 
v. Casey where the Court pointed out: “ Plaintiffs contend 
. . . that they are and have been routinely excluded from 
the court house cafeteria solely by reason of their race and 
color specifically, plaintiffs allege that they were excluded 
on August 27th, 1953, when they sought to buy and consume 
food upon the premises.”  The case was clearly a proper 
class action.

The Court of Appeals of the Fifth Circuit then refers to 
Shuttlesworth v. Gaylord, 202 F.Supp. 59, affirmed sub nom 
Haynes v. Shuttlesworth, 310 F.2d 303, based on a prior de­
cision of that Court in City of Montgomery, Alabama v. 
Gilmore, 277 F.2d 364. In both of those cases the defendant 
city was unquestionably enforcing under state statutes and 
city ordinances complete segregation of municipal facili­
ties. The specific question of the right to maintain a 
class action was not raised. However, in each of those 
cases the plaintiffs themselves had filed a petition with 
the city authorities seeking as Negroes personal permission 
to use the facilities and had been refused such right. Here



17

the respondents freely admitted that they had never been 
denied any right to do anything they wanted to do (R. 110- 
11, 122, 142).

The Court below has sought to justify its decision on 
the basis of desegregation of schools cases citing Potts 
v. Flax, C.A. 5, 313 F.2d 284, in turn citing Bush v. Orleans 
Parish School Board, C.A. 5, 308 F.2d 491, 503. These 
cases were proper class suits.

The case of Bush v. Orleans Parish School Board, C.A. 
5, 308 F.2d 491, affirming 204 F. Supp. 568, is merely a 
final step in a long series of decisions.5 The litigation was 
brought by a group of minor Negro plaintiffs and all 
Negroes similarly situated seeking desegregation of the 
schools of Orleans Parish, Louisiana. The opinion in 138 
F. Supp. 33 pointed out that the plaintiffs “ have petitioned 
the Board on three separate occasions asking that their 
children be assigned to nonsegregated schools.”  This had 
been refused these plaintiffs. Desegregation orders were 
entered. By the time of the decision in 204 F. Supp. 568, 
which was affirmd 308 F.2d 491, 503, a hundred and one 
additional intervenors were before the Court. It was a 
proper class action.

A Negro child can neither individually nor of course 
for a class obtain relief in the desegregation of schools 
until they have personally exhausted their administrative 
remedy and been denied attendance in a white school, i.e. 
actually been personally deprived of their rights. Parham 
v. Dove, C.A. 8, 271 F.2d 132; Carson v. Warticle, C.A. 4,

5 For the prior history of this litigation, see Bush v. Orleans Parish 
School Board, E.D.La., 138 F.Supp. 337, affirmed, 5 Cir., 242 1.2d 156; 
id., 163 F.Supp. 701, affirmed, 5 Cir., 268 F.2d 78; id., 187 F.Supp. 42, 
affirmed, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806; id., 188 F.Supp. 916,
affirmed, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806; id., 190 F.Supp. 861,
affirmed, 365 U.S. 569, 81 S.Ct. 754, 5 L.Ed.2d 806; id., 191 F.Supp. 871,
affirmed, Denny V. Bush, 367 U.S. 908, 81 S.Ct. 1917, 6 L.Ed.2d 1249;
id., 194 F.Supp. 182, affirmed, Gremillion v. V.S., 368 U.S. 11, 82 S.Ct, 
119, 7 L.Ed.Zd 75.



18

238 F.2d 724, cert. den. 353 U.S. 910, 1 L.Ed. 2d 664; 
Covington v. Edwards, C.A. 4, 264 F.2d 780, cert. den. 4 
L.Ed.2d 79, 361 U.S. 840; Holt v. Baleigh City Board, C.A. 
4, 265 F.2d 95, cert. den. 4 L.Ed.2d 63, 361 U.S. 818; 
McKissick v. Durham, City Board, 176 F. Supp. 3. See 
Johnson v. Stevenson, C.A. 5, 170 F.2d 108, cert. den. 93 
L.Ed. 359, 335 U.S. 801; Peay v. Cox, C.A 5, 190 F.2d 123; 
Bates v. Batte, C.A 5, 187 F.2d 142, cert. den. 96 L. Ed. 
616, 342 U.S. 815, following Cook v. Davis, C.A. 5, 178 
F.2d 595.

Similarly, in Potts v. Flax, C.A. 5, 313 F.2d 284, affirming 
204 F.Supp. 458, suit was brought by six Negro children 
of Herbert Teal and one Negro child of Flax. The Court 
pointed out: “ . . . the children named in the complaint 
were refused enrollment at the school nearest their re­
spective homes solely on the ground of their race and 
color.” 6 The decree granting class relief was not chal­
lenged on the ground that plaintiffs were not members of 
the class. It was merely challenged on the ground that 
‘ ‘ such matters are not . . . determined on a class basis 
since the Board ‘must register each child one at a time as 
individuals,’ ” 7 i.e. the contention was made that there 
could be no class action whatsoever in a school case. The 
Court merely held: “ The pleaded reason for challenging 
the class suit was, therefore, unfounded.”

The issue here was not presented in either of the above 
cases and could not be presented because the plantiffs were 
members of the class and actually discriminated against. 
Any language therein, therefore, with reference to segre­
gation in the schools being discrimination against “ a class 
as a class” , which is “ appropriate for class relief”  is

6 Quoting 204 F.Supp. at 460.
7 Quoting 313 F.2d at 288.



19

pure dicta insofar as the right of Respondents to bring 
an action for a class is concerned.

In the present case the Court of Appeals has attempted 
to take such, language out of context and thereby in reality 
create a new constitutional right. That Court has said 
that although Respondents sought class relief (and by the 
judgment here are in reality granted class relief) it is 
really not a class action in that plaintiffs “ seek the right 
to use facilities which have been desegregated . . . ”  No 
other court has gone so far.

No such right is given by the Fourteenth Amendment 
to the Constitution. This Amendment merely forbids any 
state from depriving “ any person”  of due process of law 
or denying to “ any person”  the equal protection of the 
laws. The rights under the Fourteenth Amendment are 
individual personal rights, not class rights. Shelley v. 
Kraemer, 92 L.ed. 1161, 34 U.S. 1; McGhee v. Sipes, 92 
L.ed. 1161, 34 U.S. 1; Siveatt v. Painter, 339 U.S. 629, 94 
L.ed. 1114; Gaines v. Canada, 305 US. 337, 83 L.ed. 208.

The Constitution only protects against state action de­
priving an individual of his “ life, liberty or property” . 
A man is deprived of none of these merely because he 
desires in his pursuit of happiness to live in a completely 
integrated community. Congress cannot under the power 
given it by the Fourteenth Amendment regulate “ all pri­
vate rights between man and man in society” . Civil Rights 
Cases, 109 U.S. 3, 27 L.ed. 836. The effect of such a theory 
is that any one Negro although not himself deprived of 
any of his rights of liberty or to equal protection of the 
law could require or compel, even contrary to the wishes 
of other Negroes, complete integration. And yet the Four­
teenth Amendment merely prohibits state enforced segre­
gation against an individual and dos not command inte­
gration. Shuttleswortli v. Birmingham Board, 162 F.Supp.



2 0

372, affirmed per curiam 3 L.ed.2d 145, 358 U.S. 101; 
Holland v. Board of Public Instruction, C.A. 5, 258 F.2d 
730; School Board v. Allen, C.A. 4, 240 F.2d 59; Cohen v. 
Public Housing Administration, C.A. 5, 257 F.2d 73; City 
of Montgomery v. Gilmore, C.A. 5, 277 F.2d 364, where 
this same Court said: “ We can only call attention to the 
limit of the pertinent constitutional provision as construed 
by the Supreme Court, i.e. that it does not compel the 
mixing of the different races in the public parks.”

If the law does not compel integration, how can an in­
dividual compel complete integration? The acts of the 
State must adversely affect the “ legal”  interests of a 
petitioner, not merely the personal interests. Separate 
opinion of Judge Frankfurter, Joint Anti-Fascist Refugee 
Com. v. McGrath, 95 L.ed. 817, 341 U.S. 123.

The Fourteenth Amendment itself grants no rights but 
only protects against infringement of existing rights. “ Its 
function is negative, not affirmative, and it carries no 
mandate for particular measures of reform.”  Ownbey v. 
Morgan, 65 L.ed. 837, 256 U.S. 94. See also M. £  0. R.R. 
Co. v. State, 153 U.S. 486, 38 L.ed. 793 at pages 506 and 800.

A Negro has under the Fourteenth Amendment no right 
to general desegregation. For example, he has a consti­
tutional right not to be deprived of the right to serve on 
a jury, but the Constitution gives him no right to require 
that there be other Negroes on the jury. By whatever name 
it was called the Court below was in the final analysis still 
saying that Respondents had a right to protect the rights of 
other Negroes although not deprived of their own rights.

The Constitution not requiring segregation and therefore 
Respondents having no constitutional right to anything but 
their own personal freedom from discrimination, the fact 
that they may be aggrieved by or made unhappy by the 
segregation of others does not allow such person to chal­
lenge the constitutionality thereof.



21

For example, the case of Tileston v. Ullmcm, 318 U.S. 44, 
87 L.ed. 603, a state statute prohibited giving of advice as 
to the use of contraceptives. A physician was aggrieved 
thereby in that the statute would prevent his giving pro­
fessional advice to three patients whose condition of health 
was such that their lives would be endangered by child­
birth. The Court held that he had no standing to litigate 
the constitutional question, the statute obviously depriving 
his patients and not him of constitutional rights.

Or, for example, in Tennessee Electric Power v. Tennes­
see Valley, 306 U.S. 118, 83 L.ed. 543, an unconstitutional 
statutory grant of power to the Tennessee Valley Authority 
to erect a series of dams on the Tennessee River and sell 
the power created thereby resulted in competition to cer­
tain public utility corporations. The Court held that al­
though aggrieved at the result of the unconstitutional Act 
the utilities could not attack the unconstitutionality thereof.

See also Collins v. Texas, 223 U.S. 288, 56 L.ed. 439; 
Jeffrey Manufacturing Company v. Blagg, 235 U.S. 571, 59 
L.ed. 364. See concurring opinion of Mr. Justice Frank­
furter in Coleman v. Miller, 307 U.S. 433, 83 L.ed. 1385. 
Erie Railroad v. Williams, 233 U.S. 68, 58 L.ed. 1155; 
Toomer v. Witsel, 334 U.S. 385, 92 L.ed. 1460, 93 L.ed. 389.

The only time that any person has been allowed to attack 
the constitutionality of a statute, except for the direct and 
explicit purpose of redressing a wrong actually done him, 
is in a class case. Class cases are a creature of equity and 
have always been in our jurisprudence subject to the provi­
sion that the plaintiff must be a member of the class. This 
principle has been readopted in Rule 23 of the Rules of 
Federal Practice. The allowance of a class suit here under 
the circumstances of this case would be an instance of the 
throwing of precedence and established legal principle out 
of the window. If this decision is allowed to stand, then, 
at least in the Fifth Circuit, any single Negro can require



2 2

the integration of an entire community although he 
himself has not been in any way discriminated ag*ainst or 
denied any rights or privileges under the Constitution and 
even though as a matter of fact the actual members of the 
class which he seeks to represent may not desire or ap­
prove of the litigation.

2. The holding of the Court of Appeals of the Fifth Cir­
cuit that Respondents for themselves and/or for the class 
were entitled to injunctive relief under the facts and cir­
cumstances here is in direct conflict with decisions of this 
Court and of the Courts of Appeal of other circuits and with 
prior decisions of the Fifth Circuit Court of Appeals.

The imposing of an injunction against a defendant, and 
particularly against public officials, is an extraordinary 
remedy applied with great hesitancy and only under unusual 
circumstances because of the stigma and the harsh penalties 
attached thereto. The tendency of some federal courts in 
civil rights actions to overlook this fact and ignore ap­
plicable precedents and long established principles of 
equity controlling injunctive relief should be curbed by this 
Court. In some Circuits broad sweeping permanent in­
junctions are becoming the rule not the exception and, we 
submit, it behooves this Court to require that these estab­
lished precedents and principles be as applicable in Civil 
Eights actions as in other actions.

The facts of this case do not justify the granting of any 
injunctive relief either to the Eespondents personally or for 
a class, much less the granting of the broad sweeping class 
injunctive relief against public officials. The granting of 
the injunctive relief by the Circuit Court of Appeals of 
the Fifth Circuit here was in conflict with all of the follow­
ing well established principles.



23

(a)

A Court will not enjoin the enforcement of state criminal 
statutes, even if unconstitutional, unless the same have 
been enforced against petitioner or petitioner is threat­
ened with enforcement thereof and he is in clear and 
imminent danger of immediate arrest thereunder.

These Petitioners here were enjoined from enforcing 
certain unconstitutional criminal statutes of the State of 
Mississippi, including one Municipal Ordinance. The 
Municipal Airport Authority had no authority to and did 
not enforce any statutes. It was undisputed that the 
officials of the City of Jackson had never enforced any of 
the statutes complained of nor threatened the enforcement 
thereof. Respondents position was that they did not need 
to he actually arrested before obtaining injunctive relief. 
While under unusual circumstances this is true, there can 
be no injunctive relief unless Respondents were actually 
threatened with enforcement of the criminal statutes and 
were in clear and imminent danger of arrest thereunder. 
Not only were these Respondents not threatened with any 
arrest under the statute, but no arrest of anyone had ever 
been made or threatened or contemplated.

Cases denying the right to injunctive relief under such 
circumstances include: Poe v. Ulltnan, 6 L.ed.2d 512, 367 
U.S. 497; Bailey v. Patterson, 7 L.ed.2d 332, 368 U.S. 346; 
American Federation of Labor v. Watson, 90 L.ed. 873, 
327 U.S. 582; Spielman Motor Sales v. Dodge, 79 L.ed. 1322, 
295 U.S. 89; Stefcmelli v. Minyard, 96 L.ed. 138, 342 U.S. 
117; Watson v. Buck, 85 L.ed. 1416, 313 U.S. 387; Bradford 
v. Hurt, C.A. 5, 84 F.2d 722; Empire Pictures Distributing 
Company v. City of Fort Worth, C.A. 5, 273 F.2d 529.

Equity will not grant an injunction because of the mere 
apprehension or suspicion or fear that there might be a



24

need therefor. First National Bank v. Albright, 52 L.ed. 
614, 208 U.S. 548; Walling v. Buettner & Co., C.A. 7, 133 
F.2d 306; Redlands Foothill Groves v. Jacobs, 30 F.Supp. 
995.

(b)

The refusal of injunctive relief was within the discretion 
of the trial judge which was not abused.

The trial judge who exercised his discretion in refusing 
injunctive relief in the District Court was the same trial 
judge that denied injunctive relief against the same Peti­
tioners, i.e. the City of Jackson and its officials, in the case 
of Clark v. Thompson, 206 F.Supp. 539, affirmed by the 
Court of Appeals, Fifth Circuit 313 F.2d 637.

The Court in denying injunctive relief there specifically 
held that in his opinion it was unnecessary and that the in­
dividual defendants, the City officials, were “ all outstand­
ing high-class gentlemen and in my opinion will not violate 
the terms of the Declaratory Judgment issued herein . . . 
They will conform to the ruling of this court without being- 
coerced so to do by an injunction.”  This finding by the 
trial judge was affirmed by the Fifth Circuit Court of Ap­
peals. It is applicable here.

Cases holding that the discretion exercised by a trial 
judge in denying injunctive relief is reviewable only for 
abuse of discretion and that under the facts here there was 
no abuse of discretion particularly where the injunction 
sought was to control state officers in the conduct of their 
office who are presumed to obey the law, include: Brother­
hood v. Missouri-Kansas-T. R. Co., 4 L.ed.2d 1379, 363 U.S. 
528; Peay v. Cox, C.A. 5, 190 F.2d 123, cert. den. 96 L.ed. 
671; Barnes v. City of Gadsden, C.A. 5, 174 F.Supp. 64, 
affirmed 268 F.2d 593, cert. den. 4 L.ed.2d 186; Bowles v. 
Huff, C.A. 9, 146 F.2d 428; Hecht Company v. Bowles, 321



25

U.S. 321, 88 L.ed. 754; Reliable Transfer v. Blanchard, C.A. 
5, 145 F.2d 551; Spielman Motor Sales v. Dodge, 79 L.ed, 
1322, 295 U.S. 89; Beal v. Missouri Pacific R. Corp., 312 U.S. 
45, 85 L.ed. 577; Sterling v. Constantin, 287 U.S. 378, 77 
L.ed. 375; Dawley v. City of Norfolk, C.A. 4, 159 F.Supp. 
642, affirmed 260 F.2d 647, cert. den. 3 L.ed.2d 636; Kansas 
City v. Williams, C.A. 8, 205 F.2d 47.

The trial judge in Clark v. Thompson, supra, in exer­
cising his discretion denying injunctions against the officials 
of the City of Jackson also stated that these officials knew 
what the law was and what their obligations were and that 
they would conform to the ruling of the Court. He then 
stated: “ I am further of the opinion that during this period 
of turmoil the time now has arrived when the judiciary 
should not issue injunctions perfunctorily, but should place 
trust in men of high character that they will obey the man­
date of the court without any injunction hanging over 
their heads ’ This statement leads us to :

(c)

An injunction should only issue with great caution and only 
in exceptional circumstances to prevent immediate ir­
reparable injury.

In Speilman Motor Sales v. Dodge, 79 L.ed. 1322, 295 U.S. 
89, this Court stated:

“ To justify such interference (by injunction) there 
must be exceptional circumstances and a clear showing 
that an injunction is necessary in order to afford ade­
quate protection of constitutional rights . . . The bill 
contained general allegations of irreparable damage 
and deprivation of ‘ rights, liberties, properties and im­
munities’ without due process of law, if the statute 
were enforced. But the bill failed to state facts suffi-



26

cient to warrant such conclusions, which alone were 
not enough.”

See also D'awley v. City of Norfolk, 159 F.Supp. 642, 
affirmed 260 F.2d 647, cert. den. 3 L.ed.2d 636; Beal v. 
Missouri Pacific, 312 U.S. 45, 85 L.ed. 577; Sterling v. 
Constantin, 287 U.S. 378, 77 L.ed. 375; Redlands v. Jacobs, 
30 F.Supp. 995; American Federation of Labor v. Watson, 
327 U.S. 582, 90 L.ed. 873.

(d)

The Court cannot enjoin the future enforcement of consti­
tutional breach of the peace statutes.

The injunction here ordered by the Court of Appeals 
was a broad sweeping injunction prohibiting Petitioners 
from enforcing any policy, practice, custom or custom and 
usage of segregating persons using transportation facili­
ties under color of the Mississippi Breach of the Peace 
Statutes.

There had, as reflected by this record, been a substantial 
number of arrests by City officials under the Breach of 
the Peace statutes. In each instance both white and colored 
had been arrested and there had been no arrests when per­
sons gathering in crowds did disperse upon order and no 
arrests save where the police officers were of the honest and 
firm conviction that a breach of the peace was imminent.

It is not alleged that these Breach of the Peace statutes 
are unconstitutional and they are not unconstitutional on 
their face (See Appendix “ Q” ), Whether or not they were 
acutally in any one instance enforced so as to deprive any 
particular person of his constitutional rights would depend 
upon the special facts and circumstances of the individual 
case, now pending in the State courts. They were never 
enforced against Respondents or in their presence. Nor 
were Respondents ever a member of any of the groups



27

ordered to move on. Persons so arrested are having their 
day in court and will have an opportunity to appeal to this 
court if they so desire. Whether or not there will be any 
future arrests under this statute that might deprive any 
particular individual of his constitutional rights will de­
pend upon the facts and circumstances of the arrest, which 
cannot he predicted. And yet the Court of Appeals of the 
Fifth Circuit has issued a blanket injunction against these 
Petitioners, public officials who would be presumed to do 
their duty and obey the law which they understand, pre­
venting them generally from enforcing in any way the 
Breach of the Peace Statutes where a Negro was involved 
under penalty of contempt of court proceedings.

In Douglas v. Jeannette, 319 U.S. 157, 87 L.ed. 1324, cer­
tain members of Jehovah’s Witnesses had been arrested 
for soliciting and distributing religious literature under a 
municipal ordinance prohibiting solicitation without pro­
curing a license from the City authorities. It was alleged 
that the City officials threatened to continue to enforce the 
ordinance by arrests and prosecution of any members of 
the Jehovah Witness under this ordinance and plaintiff- 
members, for all members of the Jehovah’s Witnesses, 
sought an injunction to restrain the city officials from en­
forcing this ordinance against the members of the Jehovah’s 
Witnesses. The Court, in affirming the dismissal of the 
petition, used the following language:

. Congress, by its legislation, has adopted the 
policy, with certain well defined statutory exceptions, 
of leaving generally to the state courts the trial of 
criminal cases arising under state laws, subject to re­
view by this Court of any federal questions involved. 
Hence, courts of equity in the exercise of their dis­
cretionary powers should conform to this policy by 
refusing to interfere with or embarrass threatened pro­



28

ceedings in state courts save in those exceptional cases 
which call for the interposition of a court of equity to 
prevent irreparable injury which is clear and im­
minent; . . .

“ It is a familiar rule that courts of equity do not 
ordinarily restrain criminal prosecutions. No person 
is immune from prosecution in good faith for his 
alleged criminal acts. Its imminence, even though al­
leged to be in violation of constitutional guaranties, 
is not a ground for equity relief since the lawfulness 
or constitutionality of the statute or ordinance on which 
the prosecution is based may be determined as readily 
in the criminal case as in a suit for an injunction. Davis 
& F. Mfg. Co. v. Los Angeles, 189 US 207, 47 L.ed. 
778, 23 S Ct 498; Fenner v. Boykin, 271 US 240, 70
L.ed. 927, 46 S. Ct. 492___

# # #

. . It does not appear from the record that peti­
tioners have been threatened with any injury other 
than that incidental to every criminal proceeding
brought lawfully and in good faith, . . .

#  *  #

“ Nor is it enough to justify the exercise of the equity 
jurisdiction in the circumstances of this case that there 
are numerous members of a class threatened with 
prosecution for violation of the ordinance. In general 
the jurisdiction of equity to avoid multiplicity of civil 
suits at law is restricted to those cases where there 
would otherwise be some necessity for the maintenance 
of numerous suits between the same parties involving 
the same issues of law or fact. It does not ordinarily 
extend to cases where there are numerous parties 
and the issues between them and the adverse party— 
here the state—are not necessarily identical. Matthews



29

V. Rodgers, supra (284 US 529, 530, 76 L.ed. 454, 455, 
52 S Ct 217), and eases cited. Far less should 
a federal court of equity attempt to envisage in advance 
all the diverse issues which could engage the attention 
of state courts in prosecutions of Jehovah’s Witnesses 
for violations of the present ordinance, or assume to 
draw to a federal court the determination of those is­
sues in advance, hy a decree saying in what circum­
stances and conditions the application of the city ordi­
nance will be deemed to abridge freedom of speech and
religion.

#  #  #

“ For these reasons, establishing the want of equity 
in the cause, we affirm the judgment of the circuit court 
of appeals directing that the bill be dismissed.”  (em­
phasis ours)

The language in the last paragraph quoted from the 
Douglas v. Jeannette case, supra, is particularly applicable 
here. Here the issues between the City and the parties 
arrested under the Breach of the Peace statutes are not 
only not necessarily identical but would be different on 
each occasion of a breach of the peace. A federal court of 
equity could not attempt to envisage in advance all the 
diverse issues of fact and law which could engage the at­
tention of the state courts in prosecutions under the Breach 
of Peace Statutes or assume to draw to a federal court the 
determination of those issues in advance by a decree, in 
effect saying that under no circumstances could the Breach 
of the Peace Statutes be enforced against Negroes in or on 
transportation facilities.8

8 Later cases expressing the reluctance of the federal courts to interfere 
with the enforcement of criminal statutes by state or municipal authorities 
and citing and relying on Douglas v. Jeannette, supra, include: Empire



30

We also call the attention of the Court to the language in 
United Electrical Workers v. Baldwin, 67 F.Supp. 235, as 
follows:

“ It does not appear that any federal right to utilize 
a solid line of pickets blocking entrance to the plant 
exists. Whether such an activity constitutes a hr each of 
the peace under Connecticut law, it is not incumbent 
upon this court to decide . . .

And the right of officials of the state to prevent 
breaches of the peace cannot he denied. Thornhill v. 
Alabama, supra, 310 U.S., at 105, 60 S. Ct. 736, 84 
L. Ed. 1093. * * * In such situations we are all familiar 
with the fact that the police often lay down rules which 
temporarily interfere with one or another basic right. 
To deny them the power to do so would be as much a 
burdensome restraint on their duty to preserve the 
peace, . . . ”

(emphasis ours)

See also Watson v. Buck, 313 U.S. 387, 85 L.ed. 1460.

(e)

The denial of injunctive relief against the Municipal Air­
port Authority hy the Trial Judge was peculiarly within 
his discretion.

The only matters and things proved against the Munici­
pal Airport Authority were the presence of some racial 
signs in the airport and racial discrimination by lessee in 
the restaurant. Prior to the final decree in the District 
Court all signs had been removed and the lease of the

Pictures Distributing Co. V. City of Ft. Worth, C.A. 5, 273 F.2d 529; 
Stefanelli v. Minyard, 342 U.S. 117, 96 L.Ed. 138; Wilson v. Schnettler, 
365 U.S. 381, 5 L.ed.2d 620. See also Bradford v. Hurt, C.A. 5, 84 F.2d 
722.



31

restaurant to Cicero Carr had been cancelled and an affi­
davit had been filed by the Municipal Airport Authority 
to the effect that it would operate the restaurant itself 
without segregation.

The Court of Appeals of the Fifth Circuit reversed the 
refusal of the District Judge to enjoin the Municipal Air­
port Authority in the face of U.8. v. Grant, 346 U.S. 629, 
97 L.ed. 1303, where this Court in denying injunctive relief 
after voluntary cessation of alleged illegal conduct by the 
defendant stated:

“ But the moving party must satisfy the Court that 
relief is needed. The pecessary determination is that 
there exist some cognizable danger of recurrent vio­
lation, something more than the mere possibility which 
serves to keep the case alive. The Chancellor’s deci­
sion is based on all the circumstances; his discretion is 
necessarily broad and his strong showing of abuse must 
be made to reverse it . . . The government must demon­
strate that there was no reasonable basis for the Dis­
trict Judge’s decision . . . How much contrition should 
be expected of a defendant is hard for us to say. This 
surely is a question better addressed to the discretion 
of the trial court . . .  We conclude that, although the 
actions were not moot, no abuse of discretion has been 
demonstrated in the trial court’s refusal to award in­
junctive relief.”

3. Even if any relief should have been granted against 
the City officials, which is denied, no injunctive relief should 
have been grcmted against the City of Jackson and the 
Municipal Airport Authority.

Both the City of Jackson and the Municipal Airport Au­
thority are public bodies politic. They are not a person 
under the Civil Bights Act.