Pugh v. Hunt Motion for Determination that Action May be Maintained as a Class Action

    In the

Suprem e Court of the U nited  States
October Term, 1957

No.

ALBERTIS S. HARRISON, JR.,
A tto r n ey  G e n e r a l  of V ir g in ia , et  a l ,

Appellants
v.

NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE, a C o r po r a t io n ; and  
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INCORPORATED, a C o rpo ratio n ,
Appellees

STATEMENT OF JURISDICTION

T u c k er , M ays , M oore & R eed 
1407 State-Planters Bank Bldg 
Richmond 19, Virginia 

Of Counsel

J . S egar G ravatt 
Blackstone, Virginia

Counsel for the Appellants

D avid J . M ays 
H en r y  T . W ic k h a m

1407 State-Planters Bank Bldg. 
Richmond 19, Virginia



TABLE OF CONTENTS

Page

O p in io n  of Court B e l o w ............... ........................ - .................................. 1

T h e  J u r isd ic tio n  of t h e  C o u r t ...................... ...................................—. 1

T h e  Q u estio n s  P r e s e n t e d ..... ................................................................... 3

S ta te m e n t  of t h e  C ase ................... ...................................... ........... —  3

T h e  Q u estio n s  P r esen ted  A re S u b s t a n t ia l ..................................  12

A p pe n d ix  :

I. Opinion of the Three-Judge District Court.............App. 1

II. The Statutes Involved.......................    App. 95

III. Judgment of the Court Below................................. ...App. 106

IV. The Alabama Statute ..................................   App. 107

V. The North Carolina Statute ............    App. 109

TABLE OF CITATIONS

Cases

Bryan v. Austin, 148 F. Supp. 563 ............................................. 14, 16

Burroughs v. United States, 290 U. S. 534 ................ ......... ..........  19

Communist Party v. Subversive Activities Control Board, 223 
F. 2d 531................ ....... ......... ............................... ......... ............  18

Douglas v. Jeanette, 319 U. S. 157................................................... 13

Electric Bond & S. Co. v. S. E. C., 303 U. S. 419  ............. .............  19

Government & C. E. O. C., C. I. O. v. Windsor, 353 U. S. 364
14, 15, 16, 18



Lassiter v. Taylor, 153 F. Supp. 295 ........................-.....................  16

Lewis Publishing Company v. Morgan, 229 U. S. 288 .................  19

McCloskey v. Tobin, 252 U. S. 107...........................-..... -.............  21

National Ass’n. for Advancement of Colored People v. Patty,
159 U. S. 503 ....................... -.................... -....................... ----- 1, 20

National Union of Marine Cooks v. Arnold, 348 U. S. 3 7 ...........  21

Palmetto Fire Insurance Co. v. Conn, 272 U. S. 295 ......—............ 2

People of State of New York ex rel. Bryant v. Zimmerman, 278 
U. S. 63 ............................................-....... ...................................  20

Re Isserman, 345 U. S. 286 ..........................-.................................  21

St. John v. Wisconsin Employment Relations Board, 340 U. S. 411 2

Page

Sonzinsky v. United States, 300 U. S. 506 ...................... -........ —  19

Spielman Motor Sales Co. v. Dodge, 295 U. S. 8 9 ............... .........  13

Stefanelli v. Minard, 342 U. S. 117...........................-......................  13

Terrace v. Thompson, 263 U. S. 197...... ....................... ................  13

Thomas v. Collins, 323 U. S. 516 ....... ............................... -..........  20

United Public Workers v. Mitchell, 330 U. S. 7 5 ...........................  12

United States v. Harriss, 347 U. S. 612..................................... 17, 18

Viereck v. United States, 318 U. S. 236 ..................-.....................  18

Watson v. Buck, 313 U. S. 387 ................................. -......................  12

Other Authorities

Acts of the General Assembly of Virginia, 
Extra Session, 1956:
Chapter 31 .................................................  2, 3, 9, 11, 16, 17, 20
Chapter 32 ............ ................. — ...........  2, 3, 10, 11, 16, 17, 20
Chapter 35 .......................... ..............................  3, 11, 16, 20, 21



Page

Code of Virginia, 1956 Additional Supplement:
Section 18-349.9...........................................................   3
Section 18-349.17........................................................................... 3
Section 18-349.25............................................................. ............ . 3

United States Code:
Title 2:

Section 241 ............................................................................... 19
Section 261 ..............................    18

Title 26:
Section 1132............................................................................. 19

Title 28:
Section 1253 ....    2
Section 1331 ............................................................................. 2
Section 1332 ................      2
Section 1343(3) ..................................................- ................  2
Section 2281 ............................................................................. 2
Section 2284............................................................................. 2

Title 50:
Section 786 ................................................................................ 18



In the
Supreme Court of the U nited States

October Term, 1957

No.

ALBERTIS S. HARRISON, JR.,
A tto rney  Ge n er a l  of V ir g in ia , et  a l ,

Appellants
v.

NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE, a Co r po r a t io n ; and  
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INCORPORATED, a C o rpo ratio n ,
Appellees

STATEMENT OF JURISDICTION

I .

OPINION OF THE COURT BELOW
The opinion of the three-judge United States District 

Court for the Eastern District of Virginia, Richmond Divi­
sion, is reported at 159 F. Supp. 503 (1958) as National 
Ass’n. for Advancement of Colored People v. Patty and 
is found, together with the dissenting opinion, as Appendix 
I to this statement.

II.
THE JURISDICTION OF THE COURT

1. The cases below were brought by the appellees to 
secure a declaratory judgment and an injunction restraining



2

the appellants from enforcing five state statutes. A three- 
judge court was convened pursuant to 28 U. S. C. Sections 
2281 and 2284 and jurisdiction was invoked under 28 U.
S. C. Sections 1331, 1332 and 1343(3). This appeal is 
taken from the judgment of the three-judge court declar­
ing three state statutes to be unconstitutional and enjoining 
their enforcement against the appellees. The statute pur­
suant to which this appeal is brought is 28 U. S. C. Sec­
tion 1253.

2. The date and time of entry of the judgment sought 
to be reviewed by this appeal is April 30, 1958. The notice 
of appeal was filed in the United States District Court for 
the Eastern District of Virginia, Richmond Division, on 
May 22, 1958.

3. Section 1253 of Title 28, U. S. C. confers on this 
Court jurisdiction of this appeal and reads as follows:

“Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order grant­
ing or denying, after notice and hearing, an interlocu­
tory or permanent injunction in any civil action, suit 
or proceeding required by any Act of Congress to be 
heard and determined by a district court of three 
judges.” (June 25, 1948, c. 646, 62 Stat. 926.)

4. The following cases sustain the jurisdiction of this 
Court:

(a) St. John v. Wisconsin Employment Relations Board, 
340 U. S. 411, 414 (1951); and

(b) Palmetto Fire Insurance Co. v. Conn, 272 U. S. 295, 
305 (1920).

5. The validity of three state statutes is involved. Chap­
ters 31 and 32, pp. 29-33, Acts of the General Assembly of



3

Virginia, Extra Session, 1956 (respectively codified as Sec­
tions 18-349.9 et seq. and 18-349.17 et seq. of the Code of 
Virginia, 1956 Additional Supplement, pp. 32-36) are reg­
istration statutes. Chapter 35, pp. 36-37, Acts of the Gen­
eral Assembly of Virginia, Extra Session, 1956 (codified 
as Section 18-349.25 et seq. of the Code of Virginia, 1956 
Additional Supplement, pp. 36-37) relates to the crime of 
barratry. Due to the length of these statutes they are not 
here set out verbatim. Their text is set forth as Appendix 
II to this statement.

III.
THE QUESTIONS PRESENTED

1. Did the three-judge district court err in refusing to 
dismiss the complaints pertaining to Chapters 31, 32 and 
35, Acts of the General Assembly of Virginia, Extra Ses­
sion, 1956, on the grounds, or any one of them, set forth 
in the defendants’ motions to dismiss?

2. Did the three-judge district court err in enjoining the 
enforcement of Chapters 31, 32 and 35, Acts of the General 
Assembly of Virginia, Extra Session, 1956, against the 
plaintiffs on the ground that the said statutes deny them 
rights guaranteed by the Fourteenth Amendment to the 
Constitution of the United States?

IV.
STATEMENT OF THE CASE

As previously mentioned, these cases were heard before 
a statutory three-judge court on the complaints of the appel­
lees seeking declaratory judgments and permanent injunc­
tions against enforcement and operation of certain statutes 
enacted by the General Assembly of Virginia.



4

The facts material to the consideration of the questions 
presented are as follows:

The National Association for the Advancement of Col­
ored People, hereinafter referred to as the NAACP, is a 
membership corporation organized under the laws of the 
State of New York. The principal object of the NAACP 
is to advance the interests of colored people. It is financially 
supported by contributions from local branches which are 
issued charters. These branches are grouped into an asso­
ciation called the Virginia State Conference of NAACP 
Branches, and for all practical purposes, the branches and 
the State Conference are constituent parts of the NAACP.

Oliver W. Hill and Spottswood W. Robinson, III, Rich­
mond attorneys, are members of the Legal Committee of 
the NAACP as well as being members of the Legal Com­
mittee of the Virginia State Conference. Hill is also 
chairman of the last-mentioned committee and Virginia 
Counsel for the NAACP and its Virginia Registered Agent. 
In addition, Robinson is the Southeast Regional Counsel 
for the NAACP Legal Defense and Educational Fund, a 
New York membership corporation, hereinafter referred 
to as the Legal Defense Fund.

The Activities of the Legal Defense Fund
One of the main purposes of the Legal Defense Fund is 

to render legal aid gratuitously to such Negroes as may 
appear to be worthy and who are suffering legal injustice by 
reason of race and are unable to employ counsel on account 
of poverty. Thurgood Marshall is Director and Counsel 
of the Legal Defense Fund and has under his direction a 
legal research staff of six full-time lawyers who reside in 
New York City. In addition, the Legal Defense Fund has 
lawyers in several sections of the country on a retainer basis



5

and approximately 100 volunteer lawyers throughout the 
country who come in to assist whenever needed. The Legal 
Defense Fund also has at its disposal social scientists, teach­
ers of government, anthropologists and sociologists.

The income of the Legal Defense Fund is derived mainly 
from contributions solicited by letter and telegram from 
New York City. It is approved by the State of New' York 
to operate as a legal aid society because of the provisions of 
the barratry statute in effect in New York State.

Costs, expenses and investigations of legal cases on behalf 
of Negroes are borne by the Legal Defense Fund and it 
will pay attorneys’ fees and bear the costs of a suit by a 
private litigant to recover damages for violation of civil 
rights, especially if the principle involved in the particular 
lawsuit has not been established.

While it was conceded the Legal Defense Fund should 
represent only those people who cannot afford to pay for 
litigation, it was stated that no investigations are made to 
determine the financial conditions of the parties who may 
request and receive assistance, and the record in this case 
clearly indicates that many Negroes who are receiving the 
assistance of the Legal Defense Fund are not in poverty.

The Activities of the NAACP
Speaking of the legal activity of the NAACP, Roy Wil­

kins, Executive Secretary thereof, testified:

“Well, under legal activity we have sought to assist in 
securing the constitutional rights of citizens which 
may have been impaired or infringed upon or denied. 
We have offered assistance in the securing of such 
rights. Where there has been apparently a denial of 
those rights, we have offered assistance to go to court 
and establish under the Constitution or under the fed­



6

eral laws or according to the federal processes, to seek 
the restoration of those rights to an aggrieved party.” 
(Tr.,pp. 70-71)

Wilkins further testified that in assisting plaintiffs “we 
would either offer them a lawyer to handle their case or to 
help to handle their case and pay that lawyer ourselves, or 
we would advise them, if they had their own lawyer, would 
advise them or assist in the costs of the case” (Tr., p. 82). 
No money ever passes directly to the plaintiff or litigant.

The NAACP does not ask a person if he wishes to 
challenge a law. However, it does say publicly that it be­
lieves that a certain law is invalid and should be challenged 
in the courts. Negroes are urged to challenge such laws 
and if one steps forward, the NAACP agrees to assist. 
Although it is not in the regular course of business, pre­
pared papers have been submitted at NAACP meetings 
authorizing someone to act in bringing lawsuits and the 
people in attendance have been urged to sign.

Robert L. Carter, General Counsel for the NAACP, is 
paid to handle legal affairs for the corporation. Representa­
tion of the various Virginia plaintiffs falls within his duties. 
The NAACP offers “legal advice and assistance and coun­
sel, and Mr. Carter is one of the commodities” (Tr., p. 125).

Thurgood Marshall was Special Counsel for the NAACP 
prior to 1957 and it was his job “to advise with lawyers and 
the people in regard to their legal rights and to render what­
ever legal assistance could be rendered” (Tr., p. 308).

The State Conference has a legal staff composed of thir­
teen members and in every instance except two, Negro 
plaintiffs in civil right cases have been represented by mem­
bers of such staff in cases in which assistance is given. All 
prospective plaintiffs are referred to the Chairman of the 
Legal Staff, Oliver W. Hill, and counsel for such plaintiffs



7

makes his appearance when Hill has recommended that they 
have “a legitimate situation that the NAACP should be 
interested in” (Tr., p. 39).

The State Conference assists in cases involving discrim­
ination and the Executive Board formulates certain policies 
to be applied in determining whether assistance will be given. 
Hill then applies these policies and when he decides that the 
case is a proper one, it is taken “automatically” with the 
concurrence of the President (Tr., p. 47).

Members of the Legal Staff of the State Conference may 
attend meetings held by the branches in their capacity as 
counsel for the Conference and either the particular branch 
or the State Conference pay the traveling expenses incurred.

Oliver W. Hill testified that he is not compensated as 
chairman of the Legal Staff. It is his duty to advise Negroes 
who come to him voluntarily “or directly from some local 
branch, or after having been directed there by Mr. Banks” 
whether or not he will recommend to the State Conference 
that their case will be accepted (Tr., p. 131).

After a case is accepted, Hill selects the lawyer. He refers 
the case to a member of the Legal Staff residing in the par­
ticular area from which the complaining party came. For 
the Richmond area, “one of us would frequently handle the 
situation” (Tr., p. 133).*

A bill for the legal services is submitted to Hill who 
approves it with the concurrence of the President of the 
State Conference. Hill further stated that no investigation 
is made as to the ability of the plaintiffs to pay the cost of 
litigation. He feels that irrespective of wealth, a person has

* It should be pointed out that Hill as well as Spottswood W. Robin­
son, III, also a member of the Legal Staff of the State Conference, both 
being residents of Richmond, not only represented all the plaintiffs as 
counsel of record in the Prince Edward, Arlington, Charlottesville, 
Newport News and Norfolk school segregation cases, but took active 
and leading parts in the trial of said cases.



8

the right “to get cooperative action in these cases” (Tr., 
p. 156).

Economic Reprisals
The appellees, in an attempt to substantiate allegations 

set forth in their complaints concerning harassment, abuse 
and economic reprisals against their members and contribu­
tors, examined eight witnesses in the court below. It is a 
fair summary to state that several of these witnesses told 
only of social reprisals, while the eighth testified that she was 
a cleaning woman doing day work and that one of her em­
ployers dismissed her after her name appeared in the news­
paper as being one of the plaintiffs in the Charlottesville 
school segregation case. However, there was no evidence 
that she was a member or contributor to the NAACP or 
the Legal Defense Fund. Furthermore, it was stipulated 
by counsel that she had been fully employed by white em­
ployers since the discharge aforementioned.

The Necessity for Chapters 31 and 35
While a number of Negro plaintiffs in the Prince Edward 

County school segregation case admitted signing a paper 
which actually authorized the bringing of that lawsuit, they 
also testified:

1. They did not know that they were plaintiffs in the 
case until the year 1957, though it was initially brought 
in 1951.

2. When they signed the so-called authorization papers 
they thought only that they would obtain a better or new 
school for their children.

3. They have never had any communications from the 
attorneys allegedly representing them concerning the said 
lawsuit.



9

Another witness who is a plaintiff in the Charlottesville 
school segregation case stated that he had had no conver­
sation or written correspondence with the attorneys who 
brought that suit, all of his contacts being with the NAACP. 
Still another, who is also a plaintiff in the Charlottesville 
case testified that he signed an authorization paper at a meet­
ing of the NAACP at which time no lawyers were present.

Another witness on behalf of the appellants testified that 
the solicitation of personal injury claims is widespread in 
Virginia, as well as in the rest of the country; that the divi­
sion of fees is also widespread as well as offering of financial 
enducements to solicit business; and that running and cap­
ping is indulged in by unethical attorneys and laymen in 
their employ. This witness was an Eastern Representative 
of the Claims Research Bureau of the Law Department of 
the American Railroads and stated that the information 
required by Chapter 31 would help alleviate the conditions 
described by him.

The Necessity for Chapter 32
Dr. Francis V. Simkins, professor of American History 

at Longwood College, Farrnville, Virginia, testified that he 
has made a special study of Southern history. As to the 
history of secret societies, he stated that the Union League, 
formed in 1862 to promote patriotism in the North, spread 
to the South where it became an organization of Negroes 
and carpetbaggers. Its membership list was secret and 
under that cloak of secrecy its members committed acts of 
violence.

The Ku Klux Klan was the most important secret society 
in the South. It was notorious for the crimes it committed. 
The Klan has had the tendency to reappear periodically and 
it exists today because of racial tensions. Statutes requiring



10

the disclosure of membership lists help curb the harmful 
activities of such organizations.

John Patterson, the Attorney General of Alabama, re­
counted instances of racial disturbances and violence occur­
ring in the State of Alabama, including the so-called “Mont­
gomery bus boycott situation,” instances in Birmingham, 
the Town of Maplesville, Marion and Tuskegee. General 
Patterson then pointed out that such a registration law as 
Chapter 32 “would help the authorities to enforce the law, 
catch the offenders, and possibly help us identify organiza­
tions that are working in certain areas so that we could take 
preventive measures to prevent the things from happening 
before they do” (Tr., pp. 570-571).

The Superintendent of the Virginia State Police and 
four county sheriffs testified that Chapter 32 would be of 
help in law enforcement. The sheriffs generally stated that 
an order to integrate the public schools would cause more 
racial tension, possibly bloodshed, and would raise difficult 
law enforcement problems. Secret organizations would 
antagonize the situation and in their opinion, the provi­
sions of Chapter 32 would aid in crime detection, the pre­
vention of violence and would be helpful in selecting addi­
tional deputies who may be needed in time of racial 
disturbances.

Sheriff C. F. Coates, on cross-examination, further testi­
fied that a colored man had just complained to him that the 
NAACP placed pressure on him to join the local Branch. 
The testimony is as follows:

“A colored man in my community came to me, on 
yesterday, and told me that the NAACP had put pres­
sure on him to try to make him join the NAACP. He 
refused to join. They instructed him that he had to 
join and he had to vote like they said to vote, and if



11

there was any bloodshed in that community from inte­
gration of the school that the NAACP was going to 
be in the middle of it. He refused to join it. The head 
of this organization, so he said, on account of him 
refusing to join their organization, had sent a bunch 
of thugs around to his place to tear it up.” (Tr., pp. 
458-459)

The Motives of the Legislature
Harrison Mann, a member of the House of Delegates 

from Arlington County, testified that he was the chief 
patron of Chapters 31, 32 and 35 and was responsible for 
the drafting of Chapters 32 and 35 prior to the special 
session of the General Assembly held in 1956.

Mann’s reasons that prompted him to strive for the enact­
ment of the statutes in question were:

1. The Autherine Lucy incident in Alabama and the 
violence ensuing therefrom.

2. John Kasper was beginning his operations in Wash­
ington, right across the Potomac River.

3. Existing racial tension in Virginia.
4. The Prince Edward plaintiffs ignorance of the fact 

that they had brought a lawsuit.
5. The actions of the NAACP in Texas in soliciting and 

paying litigants.
6. Charges of certain Arlington lawyers that the NA­

ACP was engaged in practicing law.
7. Certain white organizations were commencing suits 

in Maryland, Kentucky, Louisiana and elsewhere.
8. The organization of the Defenders in Virginia and 

the recurrence of the Ku Klux Klan in Florida.



12

V.
THE QUESTIONS PRESENTED ARE 

SUBSTANTIAL
The three-judge court below, by judgment entered April 

30, 1958, a copy of which is found as Appendix III to this 
statement, decided questions of such substantial nature as 
to require plenary consideration by this Court, with briefs 
on the merits and oral argument, for their resolution for 
the following reasons:

A.
The Complaints Filed in the Court Below Do Not State 

Cases or Controversies Within the Meaning of Either 
Article III, Section 2 of the Constitution of the United 
States, or Section 2201 of Title 28, U. S. Code.
It must be emphasized that the appellees requested the 

court below to enjoin the enforcement of criminal statutes 
of the Commonwealth of Virginia, though there has been 
no threat of prosecution. A general threat by officials to 
enforce laws which they are charged to administer is not a 
sufficient case or controversy over which this Court should 
exercise its equity jurisdiction. United Public Workers v. 
Mitchell, 330 U. S. 75 , 88 (1947) and Watson v. Buck 
313 U. S. 387, 400, 401 (1941).

B.
Under the Circumstances Presented by These Cases the 

Court Below Should Not Have Restrained the Enforce­
ment of Criminal Statutes of the Commonwealth of 
Virginia.

In the absence of danger of great, immediate and irrep­



13

arable injury, a federal court, in the exercise of its equity 
jurisdiction, will not interfere with a state in the execution 
of her criminal statutes. Douglas v. Jeannette, 319 U. S. 
157, 163-64 (1943) and Spielman Motor Sales Co. v. Dodge, 
295 U. S. 89, 95 (1935).

In other words, even assuming for sake of argument that 
there had been a threat of prosecution, the circumstances 
of these cases did not justify the interference of a court of 
equity. At worst, the only palpable and legal injury present 
was the possibility of a fine—a consequence hardly demand­
ing interference of any court of equity. Spielman Motor 
Sales Co. v. Dodge, supra, at p. 96. Compare, Terrace v. 
Thompson, 263 U. S. 197 (1923), where the plaintiff would 
have had to risk confiscation of his real property in order to 
test the validity of a state statute in a criminal prosecution.

To conclude, it is appropriate to quote the following 
language from Stefanelli v. Minard, 342 U. S. 117, 120 
which dealt with the discretion of federal courts in enjoining 
state criminal proceedings:

“* * * Here the considerations governing that dis­
cretion touch perhaps the most sensitive source of 
friction between States and Nations, namely, the active 
intrusion of the federal courts in the administration of 
the criminal law for the prosecution of crimes solely 
within the power of the States.”

C .

The Court Below Should Not Have Enjoined the Enforce­
ment of State Statutes Which Have Not Been Authori­
tatively Construed by the State Courts.
The doctrine of equitable abstention is involved here and 

it is only necessary to examine the majority and minority



14

opinions of the court below to conclude that a substantial 
question is raised by this appeal.

Without analysis, the majority cited five decisions of this 
Court and relied strongly upon a dissenting opinion of the 
late Chief Tudge Parker in Bryan v. Austin, 148 F. Supp. 
563 (D. C. E. D. S. C., 1957) in holding:

“The policy laid down by the Supreme Court does 
not require a stay of proceedings in the federal courts 
in cases of this sort if the state statutes at issue are 
free of doubt or ambiguity. * * *” (159 F. Supp. 503, 
533)

Notwithstanding its conclusion, the majority opinion 
seemed to recognize that recent decisions of this Court raised 
doubts as to the proper application of the doctrine of equita­
ble abstention. It was stated at p. 523:

“Neither are we given any clear formula to follow 
under the decisions of the Supreme Court. The more 
recent decisions of the highest court suggest that stat­
utory three-judge courts should be hesitant in exer­
cising jurisdiction in the absence of state court action, 
or at least a reasonable opportunity to secure same.
*  *  3fs”

Nothing can be added to the exhaustive dissenting opinion 
of the court below. The decisions relied upon by the majority 
were analysed and found not to be controlling. Further, the 
dissenting opinion points to and examines many decisions of 
this Court, including the recent case of Government & C. 
E. O. C., CIO v. Windsor, 353 U. S. 364 (1957), and finds:

“The majority adopts that portion of the dissenting 
opinion in Bryan v. Austin, and proclaims as a policy 
of judicial interpretation that a stay of proceedings in



15

the Federal Courts is not required in cases in which 
the state statutes at issue are free of doubt or ambiguity. 
It is respectfully submitted that the pronouncement of 
such a doctrine is not warranted by the authorities cited. 
It is true that in some few cases the Supreme Court has 
not required such prior interpretation but this fact falls 
far short of establishing a rule of procedure under 
which proceedings in a Federal Court in a case such as 
this should be stayed only where the statute involved is 
so ill-defined that its constitutionality is doubtful until 
it is construed judicially. (159 F. Supp. 503, 543)

*  *  *

“* * * The majority have elected to base their deci­
sion upon authority for which the most that can be 
said is that it is of a negative character and upon a 
‘prophecy of foreshadowing “trends”.’ This method 
of judicial interpretation based upon prophecy was 
commented upon and rejected by the Supreme Court 
in Spector.” (atp. 548)

The factual background, as well as the language of this 
Court in the Windsor case, supra, clearly indicates that the 
question presented merits the full consideration of the Court. 
There, the plaintiff sought an injunction restraining the en­
forcement of a state statute restricting the rights of certain 
public employees of a state to join or participate in labor 
organizations. The statutory three-judge court held that 
the doctrine of equitable abstention applied since the state 
courts had not rendered a definitive construction of the 
statute. 116 F. Supp. 354 (N. D. Ala., 1953) affm’d. with­
out opinion, 347 U. S. 901 (1954). The plaintiff then 
applied to a state court for relief, contending only that the 
union was not subject to the terms of the statute. Consti­
tutional questions were not raised. The Supreme Court of 
Alabama affirmed the decision of the lower court, agreeing 
that the union was subject to the terms of the statute, and 
the plaintiff returned to the federal forum where it was held:



16

“* * * it is clear to us that the Alabama courts 
have not construed the Solomon Bill in such a manner 
as to render it unconstitutional, and, of course, we 
cannot assume that the State courts will ever so con­
strue said statute. * * *” (146 F. Supp. 214, 216 
(1956))

This Court vacated the judgment of the district court and 
said:

“* * * The bare adjudication by the Alabama Su­
preme Court that the union is subject to this Act does 
not suffice, since that court was not asked to interpret 
the statute in light of the constitutional objections 
presented to the District Court. If appellants’ freedom- 
of-expression and equal-protection arguments had been 
presented to the state court, it might have construed 
the statute in a different manner. * * *” (353 U. S., 
supra, at p. 366)

The Alabama statute before the Court in the Windsor 
case, supra, is set forth in full as Appendix IV to this state­
ment. When this statute is considered and compared with 
Chapters 31, 32 and 35 of the Acts of the General Assembly 
of Virginia, Extra Session, 1956, it is plain that the majority 
below erred in refusing to apply the doctrine of abstention. 
The Virginia statutes are not “free of doubt or ambiguity,” 
as the majority implies, under the decision of the Windsor 
case.*

As suggested in the dissenting opinion, an issue of vital 
importance is involved, namely, the proper balance between

* Compare also the North Carolina statute, set forth as Appendix 
V to this statement, which was under consideration in Lassiter v. 
Taylor, 152 F. Supp. 295 (E. D. N. C., 1957). There, the doctrine 
of equitable abstention was applied under the authority of the Windsor 
case. It is interesting to note that the late Chief Judge Parker, who 
wrote the dissent in Bryan v. Austin, supra, was a member of the three- 
judge court.



17

state and federal courts. Under such circumstances, this 
Court should review the decision of the court below and 
clarify the doctrine of equitable abstention and its applica­
tion by the lower federal courts.

D.
The Constitutionality of Chapters 31, 32 and 35, Acts of 

the General Assembly of Virginia, Extra Session, 1956
Chapters 31 and 32 require the registration of certain 

persons, firms, associations and corporations with the State 
Corporation Commission, while Chapter 35 relates to the 
improper practice of law by defining the crime of barratry.

Chapter 31 applies to those engaged in the solicitation of 
funds for the purpose of financing or maintaining litigation 
to which they are not parties or in which they have no pecuni­
ary rights or liabilities. Chapter 32 applies not only to those 
engaged in the activities described in Chapter 31, but is also 
directed to advocates of racial integration or segregation and 
is designed to relieve interracial tension and to prevent the 
violation of the anti-lynching laws of the state. It also re­
quires registration before promoting or opposing the pas­
sage of legislation on behalf of any race.

The majority of the court below held that Chapters 31 
and 32 violated freedom of speech, and relied strongly on 
United States v. Harriss, 347 U. S. 612 (1954). In so doing, 
it was made abundantly clear that the doctrine of equitable 
abstention should have been applied, even when accepting 
as correct the principles stated by the majority on this point. 
For example, Clause (1) of Section 2 of Chapter 32, con­
cerning the promoting or opposing the passage of legislation, 
was construed in such a broad manner as to be considered in 
conflict with the Harriss case, supra. It, of course, cannot 
be assumed that a state court would construe the clause in



18

question in the same manner if the constitutional issues 
raised in the court below were presented in such forum. 
Government & C. E. O. C., C. I. O. v. Windsor, supra.

It should also be pointed out that the majority of the 
court below held that the terms of Clause (3) of Section 2 
of Chapter 32 are too vague and indefinite to satisfy con­
stitutional requirements. Again, may it be said that the 
state courts would not limit the terms of Clause (3) so as to 
satisfy constitutional requirements?

Statutes requiring registration of persons and organiza­
tions, who engage in certain activities, or of members of 
certain organizations are not new to the jurisprudence of the 
United States. Statutes requiring certain persons or or­
ganizations to list their sources of income and their expendi­
tures with particularity are no rarity. Such statutes are 
found in the United States Code as well as upon the statute 
books of the States. The statutes have been contested in 
court and have been upheld. Further, regulation of persons 
who solicit funds from the public, by requiring a reasonable 
identification and accounting therefor, has not been consid­
ered an imposition upon such solicitors.

The federal lobbying act, 2 U. S. C. Section 261 et seq., 
was upheld by this Court in the Harriss case, supra, and 
no doubts as to the constitutionality of the statute requiring 
the registration of foreign propagandists or agents of for­
eign principals has been expressed. Viereck v. United States, 
318 U. S.236 (1943).

50 U. S. C. Section 786 et seq. requires registration and 
annual reports of certain Communist organizations. The 
registration provisions of this statute were upheld in Com­
munist Party v. Subversive Activities Control Board. 223 
F. 2d 531 (D. C., 1954), reversed on procedural grounds 
in 351 U. S. 115 (1956).



19

The Federal Corrupt Practices Act, 2 U. S. C. Section 
241, et seq., provides that the treasurer of a political com­
mittee shall file a statement with the name and address of 
each person contributing $100.00 in a calendar year and the 
name and address of each person to whom an expenditure of 
over $100.00 is made. The statute was upheld in Burroughs 
v. United States, 290 U. S. 534 (1934).

Another registration act was that contained in the In­
ternal Revenue Code of 1939, 26 U. S. C. Section 1132 et 
seq., which required registration by “every person possessing 
a firearm” with the local district collector. The information 
required was the number or other identification of the 
firearm, the name and address of the possessor, the place 
where the firearm is normally kept, and the place of business 
or employment of the possessor. The registration provisions 
of this statute were upheld in Sonsinsky v. United States, 
300 U. S. 506 (1937).

In the case of Lewis Publishing Company v. Morgan, 
229 U. S. 288 (1913), the Federal statute requiring users 
of the mails for newspapers or other publications to furnish 
each year a sworn statement of the names and post office 
addresses of the editor, the publisher, the business manager 
and the owners or stockholders, if the publication was a 
corporation, and the bondholder, mortgagees and other 
security holders was upheld.

In the case of Electric Bond & S. Co. v. S. E. C., 303 
U. S. 419 (1938), the Public Utility Holding Company 
Act of 1935, prohibiting use of the mails upon the failure 
to file a registration statement containing certain required 
information, was upheld.

Mention of registration statutes above, which have been 
upheld by this Court, clearly indicates that a substantial 
question is involved in this appeal.



20

Appellants urge that the principles enunciated in Thomas 
v. Collins, 323 U. S. 516 (1945), have been ignored by the 
court below. Further, the majority has improperly con­
strued People of State of New York ex rel. Bryant v. 
Zimmerman, 278 U. S. 63 (1928). The majority apparently 
distinguishes the Zimmerman case on two grounds. First, 
it is implied that the Ku Klux Klan is an evil organization, 
while the appellee organizations are exceptionally fine or­
ganizations which have never caused, and will not cause in 
the future, such tension or strife as to warrant the exercise 
of the police power of a state. The second ground upon 
which the majority places great reliance is legislative pur­
pose. Since it was the purpose of the Legislature, accord­
ing to the majority, to destroy the appellees, Chapters 31 
and 32 cannot be upheld. On this point, the court below has 
violated all rules of statutory construction, since it has been 
stated that the registration statutes are free from doubt 
and ambiguity. Yet, the motives and intentions of the Gen­
eral Assembly of Virginia are used to strike down such 
legislation.

As pointed out, Chapter 35 creates the statutory offense 
of barratry. It conforms to the common law crime with two 
exceptions, namely, the barrator must be shown to have 
participated in payment of the expenses of the litigation, 
but need not be shown to have stirred up litigation on more 
than one occasion. The dissenting opinion states that the 
“statutory definition of ‘instigating’ is somewhat ambiguous 
and will require a judicial interpretation.” 159 F. Supp. at 
p. 549. The appellants agree, and once again it is shown 
that the majority of the court below should have applied the 
doctrine of equitable abstention. May it be said with finality 
that a state court would find that the activities of the appel­
lees amounted to “stirring up litigation” within the meaning



21

of Chapter 35 if the federal constitutional questions raised 
in the court below were properly presented to it?

The majority of the court below concluded that Chapter 
35 violated the rights of the appellees guaranteed by the 
equal protection clause as well as the due process clause of 
the Fourteenth Amendment. No authority is cited for the 
conclusion that an arbitrary classification is established by 
virtue of the exemption of legal aid societies serving all 
needy persons in all types of litigation and the appellees 
failed to show that anyone comparably situated has been 
treated differently from them. National Union of Marine 
Cooks v. Arnold, 348 U. S. 37 (1954).

Moreover, the majority concluded that Chapter 35 vio­
lated the due process clause since it was designed to put the 
appellees out of business. The fact that an individual, 
association, or corporation may be put out of business by 
a particular statute is no reason for its invalidity. Re Isser- 
man, 345 U. S. 286 (1953).

In concluding, it is to be noted that the majority of the 
court below failed to follow the decision in McCloskey v. 
Tobin, 252 U. S. 107 (1920), wherein a Texas statute, de­
fining with much detail the offense of barratry, was upheld 
by this Court.

Respectfully submitted,

T u c k er , M ays, M oore & R eed 
1407 State-Planters Bank Bldg. 
Richmond 19, Virginia

Of Counsel

D avid J . M ays 
H en ry  T . W ic k h a m  

1407 State-Planters Bank Bldg, 
Richmond 19, Virginia

J. S egar G ravatt 
Blackstone, Virginia

Counsel for the Appellants
Dated June 23, 1958



22

CERTIFICATE OF SERVICE
I hereby certify that copies of the aforegoing statement 

of jurisdiction have been served by depositing the same in 
a United States mail box, with first class postage prepaid, 
to the following counsel of record:

Robert L. Carter 
20 West 40th Street 
New York 18, New York
Thurgood Marshall 
10 Columbus Circle 
New York 19, New York
Spottswood W. Robinson, III 
623 North Third Street 
Richmond, Virginia
Oliver W. Hill 
118 East Leigh Street 
Richmond, Virginia

on this .... . day of June, 1958.

H e n r y  T. W ic k h a m



A P P E N D I X



APPENDIX I 
Opinions of the Court Below

Before S oper , Circuit Judge, H u t c h e s o n , Chief Judge, 
and H o f f m a n , District Judge.

S o per , Circuit Judge.
These companion suits were brought by the National 

Association for the Advancement of Colored People and 
the N.A.A.C.P. Legal Defense and Educational Fund, Inc., 
corporations of the State of New York, against the Attorney 
General of the Commonwealth of Virginia and the Com­
monwealth Attorneys for the City of Richmond, the City of 
Newport News, the City of Norfolk, Arlington County and 
Prince Edward County, Virginia, to secure a declaratory 
judgment and an injunction restraining and enjoining the 
defendants from enforcing or executing Chapters 31, 32, 33, 
35 and 361 of the Acts of Assembly of the Commonwealth, 
all of which were passed at the Extra Session convened be­
tween August 27, 1956, and September 29, 1956, and were 
approved by the Governor of the Commonwealth on Septem­
ber 29,1956.

The suits are based on the allegation that the statutes are 
unconstitutional and void, in that they deny to the plaintiffs 
rights accorded to them by the Fourteenth Amendment to 
the Constitution of the United States.

Jurisdiction is invoked under the civil rights statutes, 
42 U. S. C. §§ 1981 and 1983 and 28 U. S. C. § 1343, under 
which the district courts have jurisdiction of actions brought 
to redress the deprivation under color of state law of any 
right, privilege or immunity secured by the Constitution 1

1 These Acts have been respectively codified in the Code of Virginia 
at §§ 18-349.9 et seq., 18-349.17 et seq., 54-74, 78, 79, 18-349.25 et seq., 
and 18-349.31 et seq.



App. 2

or statutes of the United States providing for equal rights 
of all persons within the jurisdiction of the United States. 
Jurisdiction is also invoked under 28 U. S. C. §§1331 and 
1332 wherein jurisdiction is conferred upon the federal 
courts in all civil actions where the matter in controversy 
exceeds the sum of $3,000 exclusive of interest and costs 
and arises under the Constitution and law of the United 
States or between citizens of different states. Accordingly, 
the present three-judge district court was set up under 28 
U. S. C. §2281 and evidence was taken upon which the 
following findings of facts are based.

The National Association for the Advancement of Col­
ored People is a non-profit membership organization which 
was established in 1909 and incorporated under the laws of 
the State of New York in 1911. It is licensed to do business 
as a foreign corporation in the State of Virginia. The pur­
poses of the corporation are set out in the statement of its 
charter:

“That the principal objects for which the corpora­
tion is formed are voluntarily to promote equality of 
rights and eradicate caste or race prejudice among the 
citizens of the United States; to advance the interests 
of colored citizens; to secure for them impartial suf­
frage; and to increase their opportunities for securing 
justice in the courts, education for their children, em­
ployment according to their ability, and complete equal­
ity before the law.

“To ascertain and publish all facts bearing upon 
these subjects and to take any lawful action thereon; 
together with any and all things which may lawfully 
be done by a membership corporation organized under 
the laws of the State of New York for the further 
advancement of these objects.”



App. 3

The activities of the Association cover forty-four states, 
the District of Columbia and the Territory of Alaska. It is 
the most important Negro rights organization in the country 
(see 6 Western Res. L. Rev. 101, 102; 58 Yale L. J. 574, 
581), having approximately 1,000 uincorporated branches. 
A branch consists of a group of persons in a local commu­
nity who enroll the minimum number of members and upon 
formal application to the main body are granted a charter. 
In Virginia, there are eighty-nine active branches. A person 
becomes a member of a branch upon payment of dues which 
amount, at a minimum, to $2 per year and may be more at 
the option of the member, up to the sum of $500 for life 
membership. The regular dues of $2 per year are divided 
into two parts, one-half being sent to the national office in 
New York and one-half retained by the local branch.

In a number of states, including Virginia, the branches 
are voluntarily grouped into an unincorporated State Con­
ference, the expenses of which are paid jointly by the na­
tional organization and the local branches, each contributing 
10-cents out of its share of each member’s dues. In Virginia, 
the branches contribute a greater sum for the support of 
their State Conference.

The principal source of income of the Association and its 
branches in the several states consists of the membership 
fees which are solicited in local membership drives. Other 
income is derived from special fund raising campaigns and 
individual contributions. In the first eight months of the 
year the greater number of annual membership drives are 
conducted. During that period in 1957 the Association 
enrolled 13,595 members in Virginia. This represents a 
sharp reversal of the rising trend in membership figures in 
the same eight-month period in the preceding three years, 
which showed 13,583 members in 1954, 16,130 in 1955 and 
19,436 in 1956. The income of the Association from its



App. 4

Virginia branches during the first eight months of 1957 
was $37,470.60 as compared with $43,612.75 for the same 
period in 1956. The total amount received by the Associ­
ation from Virginia was $38,469.59 in the first eight months 
of 1957 as compared with $44,138.71 for the same period in 
1956. The total income of the Association from the country 
as a whole for the year 1956 was $598,612.84 and 
$425,608.13 for the first eight months of 1957.

At the top of the organizational structure of the national 
body is the annual convention, which consists of delegates 
representing the 1,000 branches in the several states. It has 
the power to establish policies and programs for the ensuing 
year which are binding upon the Board of Directors and 
upon the branches of the Association. Each year the con­
vention chooses sixteen members of a Board of forty-eight 
Directors, each of whom serves for a term of three years. 
The Board of Directors meets eleven times a year to carry 
out the policies laid down by the convention. Under the 
Board an administrative staff is set up, headed by an execu­
tive secretary who, representing the Board, presides over the 
functioning of the local branches and State Conferences 
throughout the country under the authority of the constitu­
tion and by-laws of the national body.

The Virginia State Conference takes the lead of the As­
sociation’s activities in the state under the administration of 
a full time salaried executive secretary, by whom the activi­
ties of the branches in the state are co-ordinated and local 
membership and fund raising campaigns are supervised. 
The State Conference also holds annual conventions attended 
by delegates from the branches, who elect officers and mem­
bers of the Board of Directors of the Conference. Through 
its representatives the State Conference appears before the 
General Assembly of Virginia and State Commissions in 
support of or in opposition to measures which in its view



App. 5

advance or retard the status of the Negro in Virginia. It 
encourages Negroes to comply with the statutes of the state 
so as to qualify themselves to vote, and it conducts educa­
tional programs to acquaint the people of the state with the 
facts regarding racial segregation and discrimination, and 
to inform Negroes as to their legal rights and to encourage 
the assertion of those rights when they are denied. In car­
rying out this program, the public is informed of the policies 
and objectives of the Association through public meetings, 
speeches, press releases, newsletters and other media.

One of the most important activities of the State Confer­
ence, perhaps its most important activity, is the contribution 
it makes to the prosecution of law suits brought by Negroes 
to secure their constitutional rights. It has been found, 
through years of experience, that litigation is the most effec­
tive means to this end when Negroes are subjected to racial 
discrimination either by private persons or by public au­
thority. Accordingly, the Virginia State Conference main­
tains a legal committee or legal staff composed of thirteen 
colored lawyers located in seven communities scattered over 
the greater part of the state. The members of the legal staff 
are elected at the annual convention of the State Conference 
and they in turn elect a chairman. Ordinarily the legal staff 
is called into action upon a complaint made to one or more 
members of the staff by aggrieved parties, but sometimes a 
grievance is brought directly to the attention of the Execu­
tive Secretary of the Conference, and if in his judgment the 
case presents a genuine grievance involving discrimination 
on account of race or color, which falls within the scope of 
the work of the Association, he refers the parties to the 
Chairman of the legal staff. If the Chairman approves the 
complaint, he recommends favorable action to the President 
of the State Conference and if he concurs, the Conference 
obligates itself to defray in whole or in part the costs and



App. 6

expenses of the litigation. With rare exceptions the attor­
neys selected by the complainant to bring the suit have been 
members of the legal staff. When a law suit has been com­
pleted the attorney is compensated by the Conference for 
out-of-pocket expenditures, including travel and steno­
graphic services, and is also paid per diem compensation 
for the time spent in his professional capacity. No money 
ever passes directly to the plaintiff or litigant. The attorneys 
appear in the course of the litigation for and on behalf of 
the individual litigants, who in every instance authorize the 
institution of the suit.

In brief, the Association, in various forms, publicizes its 
policies against discrimination and informs the public that 
it will offer aid for the prosecution of a legitimate complaint 
involving improper discrimination. Thus it is generally 
known that the State Conference will furnish money for 
litigation if the proper need arises, but the Association does 
not take the initiative and does not act until some individual 
comes to it asking for help.

Sometimes a complainant seeks damages for violation of 
his rights, as in cases involving the treatment accorded 
Negroes in public conveyances. In such a case, the Associ­
ation ordinarily does not furnish aid if the complainant is 
financially able to prosecute his claim. In the most fruitful 
field of litigation in respect to public education, the rights of 
large numbers of colored people in the community are in­
volved and a class suit is brought; and the Association pays 
the expenses even if one or more of the complainants is 
possessed of financial resources. In most of these cases the 
expenses of the suit are so great that it could not be prose­
cuted without outside aid. The fees paid the lawyers are 
modest in size and less than they would ordinarily earn for 
the time consumed.

The N.A.A.C.P. Legal Defense and Educational Fund,



App. 7

Inc., the plaintiff in the second suit, also takes a prominent 
part in support of litigation on behalf of Negro citizens. It 
is a membership corporation which was incorporated under 
the law of the State of New York in 1940. Like the Asso­
ciation, the Fund is registered with the Virginia Corporation 
Commission as a foreign corporation doing business in the 
state. It was formed, as its name implies, to assist Negroes 
to secure their constitutional rights by the prosecution of 
law suits of the sort that have just been described. The 
charter declares that its purposes are to render legal aid 
gratuitously to Negroes suffering “legal injustice” by reason 
of race or color who are unable on account of poverty to 
employ and engage legal aid on their own behalf. Other 
purposes are to secure educational facilities for Negroes 
who are denied the same by reason of their race and color 
and to conduct research and to compile and publish infor­
mation on this subject and generally on the status of the 
Negro in American life. The charter forbids the corpora­
tion to attempt to influence legislation by propaganda or 
otherwise and requires it to operate without pecuniary bene­
fit to its members. The charter was approved by a New 
York court after service upon and without objection from 
the local bar association so that it obtained the right under 
the law of New York to operate as a legal aid society.

The Fund is governed by a Board of Directors which, 
under its charter, consists of not less than five and not more 
than fifty members. Its work is directed by the usual execu­
tive officers. It operates from an office in New York City 
and has no subordinate units. It employs a full-time staff 
of six resident attorneys and three research attorneys sta­
tioned in New York City, and it keeps four lawyers on 
annual retainers in Richmond, Dallas, Los Angeles and 
Washington. It also engages local attorneys for investiga­



App. 8

tion and research in particular cases. It has on call one 
hundred lawyers throughout the country and a large number 
of social scientists who operate on a voluntary basis and 
work without pay or upon the payment of expenses only. 
By virtue of its efforts to secure equal rights and oppor­
tunities for colored citizens in the United States, the Fund 
has become regarded as an instrument through which col­
ored citizens of the United States may act in their efforts 
to combat unconstitutional restrictions based upon race and 
color.

In order to give information as to the nature of the work 
of the Fund, members of the legal staff engage in public 
speaking and lectures in colleges and universities through­
out the country on a variety of subjects connected with the 
legal rights of colored citizens and the race problem in gen­
eral. But in conformity with the charter of the Fund, the 
officers and employees of the corporation do not attempt to 
influence legislation, by propaganda or otherwise.

It is apparent that so far as litigation is concerned the 
purposes of the Association and of the Fund are identical, 
and they in fact co-operate in this activity. They are, how­
ever, separate corporate bodies with separate offices. At one 
time some of the executive officers were in the employ of 
both corporations but at the present no person serves as an 
officer or employee, although many persons are members 
of both bodies. The Fund was formed as a separate organi­
zation because it was thought that it should have no part in 
attempting to influence legislation and the complete separa­
tion has been promoted by rulings of the Treasury Depart­
ment, which disallow tax deductions for contributions to 
organizations engaged in political activity. Deductions for 
contributions to the Fund are allowed.

The revenues of the Fund are derived solely from con­



App. 9

tributions received in response to letters sent out four times 
a year throughout the country by the Committee of One 
Hundred and, to some extent, from solicitations at small 
luncheons or dinners. There are no membership dues. The 
Committee of One Hundred was organized in 1941 by Dr. 
Neilsen, former president of Smith College, and consists 
predominantly of educators and lawyers who have joined 
together for the purpose of raising the money necessary to 
keep the organization going. Most of the money comes in 
the form of $5 and $10 contributions. Substantial sums are 
received from charitable foundations, of which the largest 
was $15,000 and the aggregate was $50,000 in 1956. For 
the four or five years prior to 1957 the income showed a 
steady increase. The income for 1956 was $351,283.32. 
For the first eight months of 1955, 1956 and 1957 the in­
come was $152,000, $246,000 and $180,000, respectively. 
The receipts from Virginia were $1,469.50 in 1954; 
$6,256.19 in 1955, a portion of which was a refund from 
prior litigation; $1,859.20 in 1956, and $424 for the first 
eight months in 1957.

The total disbursements of the Fund for the year 1956 
were $268,279.03. The total expenses for Virginia during 
the past four years consisted principally of the sum of 
$6 ,0 0 0 , which was the annual retainer of the regional 
counsel.

The Fund supplements the work of the legal staff of the 
Virginia State Conference by contributing the services of 
the regional counsel and, more particularly, by furnishing 
results of the research of scientists, lawyers and law pro­
fessors in various parts of the country. The Fund also 
contributes the very large expenditures which are needed 
for the prosecution of important cases that go from the 
federal courts in Virginia and other states to the Supreme



App. 10

Court of the United States in which the fundamental rules 
governing racial problems are laid down. In this class of 
case the expenses amount to a sum between $50,000 and 
$100,000, and in the celebrated case of Brown v. Board of 
Education, 347 U. S. 483, 74 S. Ct. 6 8 6 , 98 L. Ed. 873, the 
expenses amounted to a sum in excess of $200,000. The 
expenses of cases tried in the lower courts, including an 
appeal to the Court of Appeals for the Circuit, amount to 
approximately $5,000.

The Fund has made only a superficial investigation into 
the financial competency of complainants to whom it has 
rendered aid in Virginia. For the most part the cases have 
been class actions brought for the benefit of all the colored 
citizens in a community with children in the local public 
schools and the regional counsel of the Fund has entered the 
cases at the request of members of the legal staff of the 
State Conference. It has been obvious in such instances that 
the burden of the litigation was too great for the individual 
litigants to bear, and the lawyers for the Fund have not 
regarded their participation as a violation of the charter 
provision authorizing the Fund to aid indigent litigants even 
if it was shown that some of the complainants in a case had 
legal title to homes of substantial value.2

STATUTES IN SUIT
The five statutes against which the pending suits are 

directed, that is Chapters 31, 32, 33, 35 and 36 of the Acts

2Testimony as to the activities of the Association and of the Fund 
was given in large part by Roy Wilkins, executive secretary of the 
Association; Thurgood Marshall, director counsel of the Fund; W. 
Lester Banks, executive secretary of the Virginia State Conference; 
Oliver W. Hill, chairman of the legal staff of the Virginia State Con­
ference ; Spottswood W. Robinson III, southeast regional counsel for 
the Fund.



App. 11

of the General Assembly of Virginia, passed at its Extra 
Session in 1956, were enacted for the express purpose of 
impeding the integration of the races in the public schools 
of the state which the plaintiff corporations are seeking to 
promote. The cardinal provisions of these statutes are set 
forth generally in the following summary.

Chapters 31 and 32 are registration statutes. They re­
quire the registration with the State Corporation Commis­
sion of Virginia of any person or corporation who engages 
in the solicitation of funds to be used in the prosecution of 
suits in which it has no pecuniary right or liability, or in 
suits on behalf of any race or color, or who engages as one 
of its principal activities in promoting or opposing the pas­
sage of legislation by the General Assembly on behalf of 
any race or color, or in the advocacy of racial integration 
or segregation, or whose activities tend to cause racial con­
flicts or violence. Penalties for failure to register in viola­
tion of the statutes are provided.

Chapters 33, 35 and 36 relate to the procedure for sus­
pension and revocation of licenses of attorneys at law, to the 
crime of barratry and to the inducement and instigation of 
legal proceedings. It is made unlawful for any person or 
corporation: to act as an agent for another who employs 
a lawyer in a proceeding in which the principal is not a party 
and has no pecuniary right or liability; or to accept employ­
ment as an attorney from any person known to have violated 
this provision; or to instigate the institution of a law suit 
by paying all or part of the expenses of litigation, unless the 
instigator has a personal interest or pecuniary right or lia­
bility therein; or to give or receive anything of value as an 
inducement for the prosecution of a suit, in any state or 
federal court or before any board or administrative agency 
within the state, against the Commonwealth, its depart­



App. 12

ments, subdivisions, officers and employees; or to advise, 
counsel, or otherwise instigate the prosecution of such a 
suit against the Commonwealth, etc., unless the instigator 
has some interest in the subject or is related to or in a posi­
tion of trust toward the plaintiff. Penalties for the violation 
of these statutes are provided.

The legislative history of these statutes to which we now 
refer conclusively shows that they were passed to nullify 
as far as possible the effect of the decision of the Supreme 
Court in Brown v. Board of Education, 347 U. S. 483, 74 
S. Ct. 6 8 6 , 98 L. Ed. 873 and 349 U. S. 294. 75 S. Ct. 753, 
99 L. Ed. 1083.

LEGISLATIVE HISTORY OF 
STATUTES IN SUIT

On May 17, 1954, the Supreme Court in Brown v. Board 
of Education, 347 U. S. 483, 74 S. Ct. 6 8 6 , 98 L. Ed. 873, 
after argument and reargument, denounced the segregation 
of the races in public education as a violation of the equal 
protection clause of the Fourteenth Amendment, and re­
quested the parties as well as the attorneys general of the 
affected states to file briefs and present further argument 
to assist the court in formulating its decrees.3

On May 31, 1955, the Supreme Court, after further 
argument, reaffirmed its position, reversed the judgments 
below and remanded the cases to the lower courts to take 
such proceedings as should be necessary and proper to 
admit the parties to the public school on a racially non- 
discriminatory basis with all deliberate speed.

3On the same day, in Bolling v. Sharpe, 347 U. S. 497, 74 S. Ct. 693, 
98 L. Ed. 884, the Court held that segregation in the public schools in 
the District of Columbia is a denial of the due process clause of the 
Fifth Amendment.



App. 13

Amongst the cases in the group considered by the Su­
preme Court was Davis v. County School Board of Prince 
Edward County, Virginia, 349 U. S. 294, 75 S. Ct. 753, 
99 L. Ed. 1083, which was instituted on May 23, 1951, on 
behalf of colored children of high school age in that county. 
The case had been tried by a three-judge district court after 
the Commonwealth of Virginia had been permitted to inter­
vene. The court upheld the validity of the constitutional and 
statutory enactments of the state which required the segre­
gation of the races in the state schools but found that the 
buildings, curricula and transportation furnished the colored 
children were inferior to those furnished the white children 
and ordered the defendants to remedy the defects with dili­
gence and dispatch. 103 F. Supp. 337. As we have seen, 
this decision was reversed by the Supreme Court on the 
constitutional point and the duty to eliminate segregation 
was directly presented to the State authorities.4 Their re­
action is depicted in the following recital.

On August 30, 1954, the Governor of Virginia appointed 
the Gray Commission on Public Education, composed of 
thirty-two members of the General Assembly, and directed 
it to study the effect of the segregation decisions and make 
such recommendations as might be deemed proper. The 
Commission submitted its final report to the Governor on 
November 11, 1955. Referring to prior decisions of the 
Supreme Court and to the non-judicial authority cited by 
it in support of the segregation decision, the Commission 
characterized the latter in the following terms:

4 On remand, after the filing of numerous motions and the rendering 
of arguments thereon, the Court entered a decree enjoining racial dis­
crimination in school admission but refused to set a time limit within 
which the Board should begin compliance, observing the likelihood of 
the schools being closed under state law. D. C., 149 F. Supp. 431. This 
refusal was reversed on appeal, Allen v. County School Board of 
Prince Edward County, Va., 4 Cir., 249 F. 2d 462.



App. 14

“With this decision, based upon such authority, we 
are now faced. It is a matter of the gravest import, not 
only to those communities where problems of race are 
serious, but to every community in the land, because 
this decision transcends the matter of segregation in 
education, [emphasis added] It means that irrespective 
of precedent, long acquiesced in, the Court can and will 
change its interpretation of the Constitution at its 
pleasure, disregarding the orderly processes for its 
amendment set forth in Article V thereof. It means 
that the most fundamental of the rights of the states 
and of their citizens exist by the Court’s sufferance and 
that the law of the land is whatever the Court may 
determine it to be by the process of judicial legislation.”

The Commission’s general conclusion was that “separate 
facilities in our public schools are in the best interest of 
both races, educationally and otherwise, and that compulsory 
integration should be resisted by all proper means in our 
power”. To this end the Commission recommended that a 
special session of the General Assembly be called to author­
ize the holding of a constitutional convention in order to 
amend § 141 of the Constitution of Virginia which shortly 
before had been held by the Supreme Court of Appeals of 
Virginia in Almond v. Day, 197 Va. 419, 89 S. E. 2d 851, 
to prohibit the payment of tuition and other expenses of 
students who may not desire to attend public schools. The 
Commission also recommended that legislation be passed 
conferring broad discretion upon the school authorities to 
assign pupils in the public schools and to provide for the 
expenditure of State funds in the payment of tuition grants 
so as to prevent enforced integration. In response to this 
recommendation, the General Assembly, on December 3, 
1955, meeting in Extra Session, enacted a bill, submitting



App. 15

to the voters of the state the question whether such a con­
vention should be held, and on January 9, 1956, the holding 
of the convention was approved by the voters.

On February 1, 1956, the General Assembly in its regular 
session adopted an “interposition resolution” by votes of 
36-to-2 in the Senate and 90-to-5 in the House of Delegates. 
In this resolution the following declarations were included:

“That by its decision of May 17, 1954, in the school 
cases, the Supreme Court of the United States placed 
upon the Constitution an interpretation, having the 
effect of an amendment thereto, which interpretation 
Virginia emphatically disapproves; * * *

“That with the Supreme Court’s decision aforesaid 
and this resolution by the General Assembly of Vir­
ginia, a question of contested power has arisen: The 
court asserts, for its part, that the States did, in fact, 
in 1868, prohibit unto themselves, by means of the 
Fourteenth Amendment, the power to maintain racially 
separate public schools, which power certain of the 
States have exercised daily for more than 80 years; the 
State of Virginia, for her part, asserts that she has 
never surrendered such power;

“That this declaration upon the part of the Supreme 
Court of the United States constitutes a deliberate, 
palpable, and dangerous attempt of the court itself to 
usurp the amendatory power that lies solely with not 
fewer than three-fourths of the States; * * *

“That Virginia, anxiously concerned at this massive 
expansion of central authority, * * * is in duty bound 
to interpose against these most serious consequences, 
and earnestly to challenge the usurped authority that 
would inflict them upon her citizens. * * *

“And be it finally resolved, that until the question



App. 16

here asserted by the State of Virginia be settled by 
clear Constitutional amendment, we pledge our firm 
intention to take all appropriate measures honorably, 
legally and constitutionally available to us, to resist 
this illegal encroachment upon our sovereign powers, 
and to urge upon our sister States, whose authority 
over their own most cherished powers may next be im­
periled, their prompt and deliberate efforts to check 
this and further encroachment by the Supreme Court, 
through judicial legislation, upon the reserved powers 
of the States.” Acts 1956, pp. 1213, 1214.

The constitutional convention authorized by the voters 
was held on March 7, 1956, and amended § 141 of the con­
stitution of the state in accordance with the recommendation 
of the Gray Commission.

On August 27, 1956, the General Assembly was convened 
in Extra Session in response to the call of the Governor of 
the State. He made an opening address to the assembled 
lawmakers,5 in the course of which he said:

“The people of Virginia, and their elected repre­
sentatives, are confronted with the gravest problems 
since 1865. Beginning with the decision of the Supreme 
Court of the United States on May 17, 1954, there has 
been a series of events striking at the very fundamen­
tals of constitutional government and creating situ­
ations of the utmost concern to all our people in this 
Commonwealth, and throughout the South.

“Because of the events I have just mentioned, 1 come

5 Sec. 73 of the Virginia Constitution provides: “The Governor 
shall * * * recommend to (the General Assembly’s) consideration 
such measures as he may deem expedient, and convene the General 
Assembly * * * when, in his opinion, the interest of the State may 
require.”



App. 17

before you today for the purpose of submitting rec­
ommendations to continue our system of segregated 
public schools * * *

“The principal bill which I submit to you at this 
time defines State policy and governs public school 
appropriations accordingly. The declaration reads, in 
part, as follows:

“ ‘The General Assembly declares, finds and estab­
lishes as a fact that the mixing of white and colored 
children in any elementary or secondary public school 
within any county, city or town of the Commonwealth 
constitutes a clear and present danger * * * and that 
no efficient system of elementary and secondary public 
schools can be maintained in any county, city or town 
in which white and colored are taught in any such 
school located therein.’

“The bill then defines efficient systems of elementary 
and secondary public schools as those systems within 
a county, city or town in which there is no student body, 
in the respective categories, in which white and colored 
children are taught. Following these definitions is this 
further declaration:

“ ‘The General Assembly for the purpose of protect­
ing the health and welfare of the people and in order to 
preserve and maintain an efficient system of public ele­
mentary and secondary schools hereby declares and 
establishes it to be the policy of this Commonwealth 
that no public elementary or secondary schools in which 
white and colored children are mixed and taught shall 
be entitled to or shall receive any funds from the State 
Treasury for their operation, and, to that end, forbids 
and prohibits the expenditure of any part of the funds 
appropriated * * * for the establishment and mainte-



App. 18

nance of any system of public elementary or secondary 
schools, which is not efficient.’

“This policy is in harmony with § 129 of the State 
Constitution, which provides that ‘The General Assem­
bly shall establish and maintain an efficient system of 
public free schools throughout the state.’ Manifestly, 
integration of the races would make impossible the 
operation of an efficient system. By this proposed legis­
lation, the General Assembly, properly exercising its 
authority under the Constitution, will clearly define 
what constitutes an efficient system for which State 
appropriations are made.”

The purpose for which the Extra Session was called was 
emphasized in the following exhortation with which the 
Governor concluded his address:

“The proposed legislation recognizes the fact that 
this is the time for a decisive and clear answer to these 
questions:

“ (1) Do we accept the attempt of the Supreme 
Court of the United States, without constitutional or 
any other legal basis, to usurp the rights of the States 
and dictate the administration of their internal affairs ? 
(2) Do we accept integration? (3) Do we want to 
permit the destruction of our schools by permitting ‘a 
little integration’ and witness its subsequent sure and 
certain insidious spread throughout the Common­
wealth? My answer is a positive ‘No’. On the other 
hand, shall we take all appropriate measures honor­
ably, legally and constitutionally available to us, to re­
sist this illegal encroachment upon our sovereign pow­
ers? My answer is a definite ‘Yes’ and I believe it is 
to be the answer of the vast majority of the white peo-



App. 19

pie of Virginia, as well as the answer of a large, if 
unknown, number of Negro citizens.”

The Legislature responded at once to the Governor’s 
appeal. The principal bill to which he referred in his ad­
dress became Chapter 71 of the Acts passed at the Extra 
Session. It appropriated funds for the maintenance of the 
elementary and secondary schools of the state for the en­
suing biennium and included the declarations above set out, 
whereby the use of the funds for integrated schools are 
prohibited. An accompanying Act, Chapter 70, known as 
the Pupil Placement Act, requires each pupil to attend his 
present segregated school unless a transfer is authorized 
by a Pupil Placement Board appointed by the Governor; and 
the Board is required to consider the effect of its decisions 
upon the efficiency of the schools which, according to the 
declarations of the Legislature, can be maintained only by 
preserving segregation of the races. A review of the deci­
sions of the Board is provided through a cumbersome and 
costly procedure. Another companion statute, Chapter 6 8 , 
provides that if children of both races are enrolled in the 
same school by any school authorities acting voluntarily or 
under the compulsion of an order of court, the school shall 
be closed and removed from the public school system and the 
control of the school shall be vested in the state and not re­
opened until the Governor finds that it can be done without 
enforced integration.

The Pupil Placement Act was considered at length and 
held unconstitutional by this court in Adkins v. School 
Board of City of Newport News, Va., 148 F. Supp. 430, 
wherein the terms of the Act are set out in full and the leg­
islative history is reviewed. The opinion of the court pointed 
out that the administrative remedy afforded to an aggrieved



App. 20

person by the Act would consume at least 105 days between 
the filing of the protest and the final decision which was 
lodged in the hands of the Governor. On appeal the judg­
ment of the District Court was affirmed, 4 Cir., 246 F. 2d 
325, certiorari denied 355 U. S. 855, 78 S. Ct. 83, 2 L. Ed. 
2d 63.

EFFECT OF PASSAGE OF STATUTES 
IN SUIT

[1-4] It was in this setting6 that the Acts now before 
the court were passed as parts of the general plan of mas­
sive resistance to the integration of schools of the state 
under the Supreme Court’s decrees. The agitation involved 
in the widespread discussion of the subject and the passage 
of the statutes by the Legislature have had a marked effect 
upon the public mind which has been reflected in hostility to 
the activities of the plaintiffs in these cases. This has been

6 While it is well settled that a court may not inquire into the legis­
lative motive (Tenney v. Brandhove, 341 U. S. 367, 377, 71 S. Ct. 783, 
95 L. Ed. 1019), it is equally well settled that a court may inquire into 
the legislative purpose. (See Baskin v. Brown, 4 Cir., 174 F. 2d 391, 
392-393, and Davis v. Schnell, D. C., 81 F. Supp. 872, 878-880, af­
firmed 336 U. S. 933, 69 S. Ct. 749, 93 L. Ed. 1093, in which state 
efforts to disenfranchise Negroes were struck down as violative of the 
Fifteenth Amendment.) Legislative motive—good or bad—is irrele­
vant to the the process of judicial review; but legislative purpose is of 
primary importance in determining the propriety of legislative action, 
since the purpose itself must be within the legislative competence, and 
the methods used must be reasonably likely to accomplish that purpose. 
Because of this necessity, a study of legislative purpose is of the highest 
relevance when a claim of unconstitutionality is put forward. Usually 
a court looks into the legislative history to clear up some statutory 
ambiguity, as in Davis v. Schnell, D. C., 81 F. Supp. at page 878; but 
such ambiguity is not the sine qua non for a judicial inquiry into legis­
lative history. See the decision in Lane v. Wilson, 307 U. S. 268, 59 
S. Ct. 872, 83 L. Ed. 1281, in which the Supreme Court showed that 
the state statute before the court was merely an attempt to avoid a 
previous decision in which the “grandfather” clause of an earlier 
statute had been held void.



App. 21

shown not only by the falling off of revenues, indicated 
above, but also by manifestations of ill will toward white 
and colored citizens who are known to be sympathetic with 
the aspirations of the colored people for equal treatment, 
particularly in the field of public education. A number of 
white citizens who attempted to give aid to the movement 
by speaking out on behalf of the colored people, or by tak­
ing membership in the Association, or joining the complain­
ants in school suits, have been subjected to various kinds of 
annoyance. When their names appeared in the public press 
in connection with these activities they were besieged day 
and night by telephone calls which were obscene, threat­
ening, abusive, or merely silent interruptions to the peace 
and comfort of their homes. Letters and telegrams of like 
nature were also received. Some of these persons found 
themselves cut by their friends and made unwelcome where 
they had formerly been received with kindness and respect. 
Two crosses were burned near the homes of two of them; 
an effigy was hung in the yard of a white plaintiff in a school 
case, and a hearse was sent to the home of the colored pres­
ident of the Norfolk branch of the Association during his 
absence “to pick up his body.” The last mentioned person 
was also chairman of the local branch of a labor union and 
a man of prominence in his community. He had been active 
and successful in directing membership campaigns for the 
Association in prior years but in 1957 he found that the 
solicitors were unwilling to continue their work. Colored 
lawyers on the State Conference legal staff were assailed 
with fear that enforcement of the statutes now before this 
court would result in loss of their licenses to practice should 
they continue their activities on the Association’s behalf. 
Numerous newspaper articles offered in evidence show that 
the proposal to integrate the schools was a prime subject of 
public interest and discussion throughout the state. They



App. 22

are received over objections by the defendants only as evi­
dence of this fact and not to prove the accuracy of the state­
ments therein contained. In view of all the evidence, we find 
that the activities of the State authorities in support of the 
general plan to obstruct the integration of the races in 
schools in Virginia, of which plan the statutes in suit form 
an important part, brought about a loss of members and a 
reduction of the revenues of the Association and made it 
more difficult to accomplish its legitimate aims.

The defendants on their own behalf produced as witnesses 
six of the plaintiffs in the Prince Edward County school 
case. All of them had been visited by representatives of the 
Boatwright Committee of the Legislature, which had been 
created by Chapter 34 of the Acts passed at the Extra 
Session, and had been authorized to make a thorough inves­
tigation into the activities of corporations or associations 
which seek to influence, encourage or promote litigation re­
lating to racial activities in the State. These witnesses 
testified either that they did not know that they were parties 
to the Prince Edward suit or that they merely wanted better 
schools for their children and did not want integrated 
schools. They also testified that they suffered no mistreat­
ment by reason of their names being used as plaintiffs in 
the suit. The evidence, however, shows that the first step 
leading to the litigation in Prince Edward County was a 
strike of the children in the colored high school who refused 
to attend classes for a period of two weeks as a protest 
against the undesirable conditions in the school. After the 
strike there were meetings of the parents in the school build­
ing and in the nearby Baptist Church which were addressed 
by lawyers of the legal staff of the Virginia State Confer­
ence of the Association, who were in attendance at the re­
quest of the parents of the children, as well as by other 
persons. The speakers expressed the opinion that in order



App. 23

to secure fair treatment for the colored pupils it would be 
necessary to institute a suit for the establishment of an 
integrated school. It was further shown that each of the 
six witnesses had signed a paper authorizing Hill, Martin 
and Robinson, attorneys, to act for and on behalf of them 
and their children to secure such educational opportunities 
as they might be entitled to under the Constitution and laws 
of the United States and to represent them in all suits of 
whatever kind pertaining thereto. The record in the Prince 
Edward case shows that 186 persons were joined as parties 
plaintiff.

The Attorney General of Alabama testified as to racial 
disturbances and disorders in 1955 and 1956 arising in his 
State in connection with the attempt to enroll colored stu­
dents in white schools and involving acts of violence and 
personal injury to colored persons. He attributed these 
activities in large part to white men associated in a splinter 
organization of the Ku Klux Klan and expressed the opinion 
that the registration of members of the organization under 
an act like Chapter 32 in this case would aid in the identifi­
cation and successful prosecution of the offenders. Simi­
larly he thought it would be helpful to require the registra­
tion of members of a Negro organization in Tuskegee, 
which succeeded in some measure to the work of the N. A. 
A. C. P. after it had been enjoined from operating in Ala­
bama and had engaged in boycotting white merchants in 
the community and for this purpose had engaged in threats 
and acts of intimidation. The Attorney General conceded 
that he was hostile to the N. A. A. C. P. and had filed suit 
against it in his State demanding a list of its members, but 
that he had not filed such suit against the Ku Klux Klan.

The sheriffs of four southside Virginia counties in which 
the Negro population ranges from 45 per cent to 54 per cent,



App. 24

and in one instance to 77 per cent of the total, testified that 
the relation of the races in their jurisdictions was good but 
that in their opinion integration in the public schools would 
result in disturbances and, perhaps, in bloodshed; and that 
a list of persons active in racial matters would aid them in 
preserving the peace and in selecting deputies to enforce 
the law. We find that the opposition to integration in the 
public schools is especially strong in this section of Virginia. 
The Superintendent of the Virginia State Police agreed 
with the opinion that lists of persons active in racial matters 
would help law enforcement even though the lists might 
contain thirteen or fourteen thousand names.

A representative of the law department of the Association 
of American Railroads testified for the defendants that 
through investigations he had become familiar with the 
solicitation of personal injury claims by attorneys, and 
generally with the offenses of barratry and running and 
capping ; and that such activities occur in Virginia and that 
the information required to be filed under Chapter 31 of the 
Acts of the Extra Session would be helpful in investigating 
such activities.

Mr. C. Harrison Mann, Jr., a lawyer and a delegate to 
the General Assembly, testified on behalf of the defendants 
that he was the chief patron of the Acts of Legislature now 
in suit and that he was moved by two purposes in connection 
with the legislation. He was alarmed at the activities of a 
white leader who is violently fighting integration in the 
eastern part of the United States and was operating in 
Washington shortly before the Extra Session convened. It 
was the opinion of the witness that these activities would 
lead to racial tension and possibly violence and that it was 
highly desirable that the identities of the responsible people 
be made known by registration. With respect to the passage 
of the Acts relating to the practice of law in Virginia, the



App. 25

delegate was influenced by reports in the press that certain 
persons were joined as plaintiffs in the Prince Edward suit 
without knowledge that integration of the races in the 
schools was at issue and that in other parts of the country 
there were reports that the Association was soliciting the 
institution of suits by plaintiffs and practicing law, which 
he considered to be a breach of legal ethics and bad public 
policy. He also gave evidence that he was subject to abuse 
from various sources by reason of his activities.

DEFENDANTS’ MOTIONS TO DISMISS 
CIVIL RIGHTS OF CORPORATIONS

After the institution of the pending suits the defendants 
filed motions to dismiss in each case on the ground that the 
complaints did not state a controversy over which the court 
had jurisdiction. The motions were dismissed after argu­
ment and the defendants were required to answer with leave 
to renew the contention after the hearing on the evidence. 
They now dispute the jurisdiction of the Court, first, on the 
ground that a corporation is not a person entitled to bring 
suit for deprivation of rights, privileges or immunities 
granted by the Constitution or laws of the United States 
under 42 U. S. C. §1983, over which jurisdiction is con­
ferred upon the district courts by 28 U. S. C. §1343(3). 
It is pointed out that these sections are derived from the 
Civil Rights Act of 1871, which was enacted to give effect 
to the provisions of the Fourteenth Amendment and thereby 
to prevent the deprivation of the rights of natural persons 
under the color of any state law. Reliance is placed chiefly 
on the concurring opinion of Justice Stone in Hague v. C. 
I. O., 307 U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423, where 
suit was brought by individual citizens and a membership 
corporation who claimed that under an ordinance of Jersey



App. 26

City they were deprived of the privilege of free speech and 
free assembly secured to them as citizens of the United 
States by the Fourteenth Amendment. The ordinance was 
held unconstitutional as an undue restriction of these rights 
and relief was granted to the individual plaintiffs but denied 
to a corporate plaintiff for the reason expressed in the 
opinion of Justice Roberts (307 U. S. at page 514, 59 S. Ct. 
at page 963), that “natural persons, and they alone, are 
entitled to the privileges and immunities which Section 1 
of the Fourteenth Amendment secures for ‘citizens of the 
United States’.” This holding that corporations are not 
“citizens” within this clause of the Fourteenth Amendment 
is not disputed; but Justice Stone, who concurred in the judg­
ment but differed with the reasons expressed by his col­
leagues, wrote a separate opinion in which he went further 
and made the following statement (307 U. S. at page 527, 
59 S. Ct. at page 969) :

“Since freedom of speech and freedom of assembly are 
rights secured to persons by the due process clause, all of 
the individual respondents are plainly authorized by § 1 
of the Civil Rights Act of 1871 to maintain the present 
suit in equity to restrain infringement of their rights. 
As to the American Civil Liberties Union, which is a 
corporation, it cannot be said to be deprived of the civil 
rights of freedom of speech and of assembly, for the 
liberty guaranteed by the due process clause is the lib­
erty of natural, not artificial, persons. Northwestern 
Nat. Life Ins. Co. v. Riggs, 203 U. S. 243, 255, 27 S. 
Ct. 126, 129, 51 L. Ed. 168; Western Turf Ass’n v. 
Greenberg, 204 U. S. 359, 363, 27 S. Ct. 384, 385, 
51 L. Ed. 520.”

This pronouncement supports the defendants’ position but



App. 27

it cannot be said to be a controlling authority since it did not 
represent the views of the majority of the Court but was 
concurred in only by Justice Reed (see City of Manchester 
v. Leiby, 1 Cir., 117 F. 2d 661, 663, 664).

It is of more importance to note that the opinion of Justice 
Stone did not discuss the prior decision of the Court in 
Grosjean v. American Press Co., 297 U. S. 233, 56 S. Ct. 
4 4 4 ; 80 L. Ed. 660, where a license tax on advertisement 
was held invalid at the suit of a newspaper corporation. The 
Court held (297 U. S. at page 244, 56 S. Ct. at page 446) 
that freedom of speech and of the press are fundamental 
rights safeguarded by the due process of law clause of the 
Fourteenth Amendment against abridgement by state legis­
lation, and although a corporation is not a citizen within the 
meaning of the privileges and immunities clause, it is a 
person within the meaning of the equal protection and due 
process clause of that amendment. In other words, the 
corporation was accorded rights to which it would not have 
been entitled if the rule announced by Justice Stone had been 
applied.

[5] Subsequent cases have extended this broad interpre­
tation of the word “person” in the Civil Rights Act and 
have held that a corporation is a person within that Act 
entitled to challenge the deprivation of rights under color of 
a state statute to which a money valuation could not be 
applied. Thus in McCoy v. Providence Journal Co., 1 Cir., 
190 F. 2d 760, it was held that a newspaper corporation, as 
well as individual persons employed by the corporation, were 
entitled to bring suit under 28 U. S. C. § 1343(3) to secure 
the right to inspect public records which had been denied 
them by municipal authority; and in Watch tower Bible and 
Tract Society v. Los Angeles County, 9 Cir., 181 F. 2d 739, 
it was held that the District Court had jurisdiction to enter­



App. 28

tain a complaint of a corporation engaged in the circulation 
of religious literature that it had been subjected to an un­
constitutional tax. Both of these decisions relied upon the 
pronouncement of the Supreme Court in Grosjean v. Amer­
ican Press Co., supra, and we are in accord with their con­
clusions. It is true that the Fourteenth Amendment as well 
as the Civil Rights statutes were enacted for the purpose of 
securing colored persons against unjustifiable discrimina­
tion, but in the development of the law the protection afford­
ed by the Amendment has not been confined to natural 
persons, and there is no reasonable ground at this time to 
deny the protection afforded by the Civil Rights Act to 
corporations which are engaged through their agents in 
public speech and in the circulation of literature designed to 
protect the rights of natural persons in whose interest the 
enactments were originally passed. In these days, when cor­
porate organization is well-nigh necessary for the conduct 
of large enterprises, the propriety of including them within 
the protection of the Act would seem to be obvious; and 
since the word “person” in the Fourteenth Amendment has 
been broadly construed to include corporations in the pro­
tection of their property rights,7 there is no good reason why 
the same liberality of interpretation should not be used when 
the corporation is formed not for purposes of profit but for 
the protection of the liberties of the individuals.

7 See Pennekamp v. State of Florida, 328 U. S. 331, 66 S. Ct. 1029, 
90 L. Ed. 1295 and Burstyn, Inc. v. Wilson, 343 U. S. 495, 72 S. Ct. 
777, 96 L. Ed. 1098, in each of which the Court upheld the right of a 
business corporation to freedom of speech and freedom of the press. 
It seems illogical and meaningless to deny the same rights to a non­
profit corporation organized to protect the freedoms of natural persons 
since the latter may always be properly joined as parties plaintiff in 
suits brought by the corporation on their behalf. See 66 Yale Law 
Journal 545, 548.



App. 29

JURISDICTIONAL AMOUNT
Secondly, the defendants contest the right of the plain­

tiffs to obtain relief in this court under 28 U. S. C. §§1331 
and 1332 which confer upon the district courts jurisdiction 
over civil actions arising under the Constitution and laws 
of the United States and civil actions between citizens of 
different states, where the matter in controversy exceeds the 
sum of $3,000 exclusive of interest and costs. The conten­
tion is that the plaintiffs did not allege in their complaints or 
prove at the hearing sufficient facts to establish the jurisdic­
tional amount. In substance the evidence shows that the mem­
bership of the Association in Virginia dropped from 19,436 
for the first eight months of 1956, prior to the passage of 
the statutes in suit, to 13,595 in the first eight months of 
1957, after the enactments. In the same period the income 
of the Association in Virginia showed a decline from $43,- 
612.75 to $37,470, and its national income a decline from 
$598,612.84 for the year 1956 to $425,608.13 for the first 
eight months of 1957. The Fund also experienced losses in 
these periods. Its income rose steadily until 1956, when it 
became $351,283.32 although its operations in Texas were 
restrained in September by an order of court. Its income 
dropped in the subsequent period, as is shown by contrasting 
its income of $180,000 for the first eight months of 1957 
with its income of $246,000 for the same period of 1956. 
In Virginia, its income dropped from $1,859.20 for 1956 to 
$424 during the first eight months of 1957.

[6 , 7] When suit is brought for an injunction to restrain 
the enforcement of a regulatory statute alleged to be invalid 
because of its continuing harmful effect upon the plaintiff 
the jurisdiction of the court is to be tested by the value of 
the object to be gained. Failure to prove that a sufficient 
amount of damage has already been sustained will not defeat



App. 30

the remedy if the injury is recurrent or continuous, since the 
advantage to be gained by the complainant from removal of 
the burden imposed by the statute is the matter in contro­
versy. Glenwood Light & Water Co. v. Mutual Light, Heat 
& Power Co., 239 U. S. 121, 125, 126, 36 S. Ct. 30, 60 L. Ed. 
174; Gibbs v. Buck, 307 U. S. 6 6 , 74, 59 S. Ct. 725, 83 L. 
Ed. 1111; American R. Co. of Porto Rico v. South Porto 
Rico Sugar Co., 1 Cir., 293 F. 670, 673; cf. McNutt v. Gen­
eral Motors Accept. Corp., 298 U. S. 178, 181, 56 S. Ct. 
780, 80 L. Ed. 1135; KVOS, Inc. v. Associated Press, 299 
U. S. 269, 277, 57 S. Ct. 197, 81 L. Ed. 183. Hence the 
inquiry in the pending suits is not limited to the immediate 
effect upon the plaintiffs to be expected from the enforce­
ment of the Virginia statutes but extends to the loss likely 
to flow from their enforcement throughout the years. Nor 
is the inquiry limited to the impact of the statutes upon the 
plaintiffs’ business in Virginia, because the registration 
statutes, Chapters 31 and 32, are not confined to business 
done in Virginia but require both plaintiffs to disclose the 
details of their business throughout the country including a 
list of all members, all contributions, and all expenditures; 
and Chapters 33, 35 and 36, relating to the practice of law, 
forbid the plaintiffs to pay the costs and expenses of class 
suits to which most of the contributions received by the Fund 
in its recurrent national campaigns are devoted. Taking 
these facts into consideration, it is manifest that the exist­
ence of the required jurisdictional amount is established in 
each of the cases before the court.

Certainly it cannot be said that the claim of loss in excess 
of the jurisdictional amount was made by the plaintiffs in 
bad faith for the purpose of conferring jurisdiction, or that 
it has been shown to a legal certainty that less than the 
amount is involved in the pending suits; and hence the plain­
tiffs have met the test laid down in the following excerpt



App. 31

from St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 
U. S. 283, 288-290, 58 S. Ct. 586, 590, 82 L. Ed. 845:

“The intent of Congress drastically to restrict fed­
eral jurisdiction in controversies between citizens of 
different states lias always been rigorously enforced by 
the courts. The rule governing dismissal for want of 
jurisdiction in cases brought in the federal court is that, 
unless the law gives a different rule, the sum claimed 
by the plaintiff controls if the claim is apparently made 
in good faith. It must appear to a legal certainty that 
the claim is really for less than the jurisdictional amount 
to justify dismissal. The inability of plaintiff to recover 
an amount adequate to give the court jurisdiction does 
not show his bad faith or oust the jurisdiction. Nor 
does the fact that the complaint discloses the existence 
of a valid defense to the claim. But if, from the face 
of the pleadings, it is apparent, to a legal certainty, that 
the plaintiff cannot recover the amount claimed or if, 
from the proofs, the court is satisfied to a like certainty 
that the plaintiff never was entitled to recover that 
amount, and that his claim was therefore colorable for 
the purpose of conferring jurisdiction, the suit will be 
dismissed. Events occurring subsequent to the institu­
tion of suit which reduce the amount recoverable below 
the statutory limit do not oust jurisdiction.”

RESTRAINT OF CRIMINAL 
PROSECUTION

[8-10] The defendants also invoke the familiar rule that 
ordinarily a court of equity will not restrain a criminal pros­
ecution based on a state statute, even if the constitutionality 
of the statute is involved, since this question can be raised



App. 32

and settled in the criminal case with review by the higher 
courts as well as in a suit for injunction, Douglas v. City 
of Jeannette (Pennsylvania), 319 U. S. 157, 163, 164, 63 S. 
Ct. 877, 87 L. Ed. 1324, and this is especially true where the 
only threatened action is a single prosecution of an alleged 
violation of state law. However, it is also well recognized 
that a criminal prosecution may be enjoined under excep­
tional circumstances where there is a clear showing of 
danger of immediate irreparable injury. Spielman Motor 
Sales Co. v. Dodge, 295 U. S. 89, 95, 55 S. Ct. 678, 79 L. 
Ed. 1322; Beal v. Missouri Pacific R. Corp., 312 U. S. 45, 
49, 61 S. Ct. 418, 85 L. Ed. 577. It is obvious that the pres­
ent case falls in the latter category. The penalties prescribed 
by the statutes are heavy and they are applicable not only 
to the corporation but to every person responsible for the 
management of its affairs, and under Chapter 32 of the 
statutes each day’s failure to register and file the required 
information constitutes a separate punishable offense. The 
deterrent effect of the statutes upon the acquisition of mem­
bers, and upon the activities of the lawyers of the plaintiffs 
under the threat of disciplinary action has already been 
noted, and the danger of immediate and persistent efforts on 
the part of the state authorities to interfere with the activi­
ties of the plaintiffs has been made manifest by the repeated 
public statements. The facts of the cases abundantly justify 
the exercise of the equitable powers of the court. Ex parte 
Young, 209 U. S. 123, 147, 28 S. Ct. 441, 52 L. Ed. 714; 
Truax v. Raich, 239 U. S. 33, 36 S. Ct. 7, 60 L. Ed. 131; 
Western Union Telegraph Co. v. Andrews, 216 U. S. 165, 
30 S. Ct. 286, 54 L. Ed. 430; Sterling v. Constantin, 287 
U. S. 378, 53 S. Ct. 190, 77 L. Ed. 375.



App. 33

PRIOR CONSTRUCTION OF STATUTES 
BY STATE SUPREME COURT

[11] Finally, the defendants urge that we should not 
exercise the power to restrain the enforcement of the state 
statutes but should withhold action until the statutes have 
been construed by the Supreme Court of Appeals of Vir­
ginia. This contention is based on the policy defined in 
decisions of the Supreme Court of the United States that 
the federal courts should avoid passing on constitutional 
questions in situations where an authoritative interpretation 
of state law may avoid the constitutional issues. Hence if 
the interpretation of a state statute is doubtful or a question 
of law remains undecided, the federal court should hold its 
proceedings in abeyance for a reasonable time pending con­
struction of the statute by the state courts or until efforts to 
obtain such an adjudication have been exhausted. See Spec- 
tor Motor Service, Inc. v. McLaughlin, 323 U. S. 101, 65 
S. Ct. 152, 89 L. Ed. 101; Government & Civic Employees 
Organizing Committee, C. I. O. v. Windsor, 347 U. S. 901, 
74 S. Ct. 429, 98 L. Ed. 1061; and 353 U. S. 364, 77 S. Ct. 
838, 1 L. Ed. 2d 894; Shipman v. Dupre, 339 U. S. 321, 
70 S. Ct. 640, 94 L. Ed. 877.

These rulings, however, do not mean that the federal 
courts lose jurisdiction in cases where the state courts have 
not passed upon the statute under attack or that the federal 
court is powerless to take any action until a decision by the 
state court has been rendered. Such a conclusion could not 
be reached in the pending case since the federal statutes 
expressly confer jurisdiction upon the federal courts where 
civil rights have been violated (42 U. S. C. §1983), or 
where federal questions are involved (28 U. S. C. §1331). 
Thus in Doud v. Hodge, 350 U. S. 485, 76 S. Ct. 491, 
100 L. Ed. 577, where the constitutionality of a licensing



App. 34

and regulatory statute was involved and jurisdiction of the 
federal court was invoked under 28 U S. C. §1331, the 
Court said (350 U. S. at page 487, 76 S. Ct. at page 492) :

“* * * This Court has never held that a district 
court is without jurisdiction to entertain a prayer for 
an injunction restraining the enforcement of a state 
statute on grounds of alleged repugnancy to the Federal 
Constitution simply because the state courts had not yet 
rendered a clear or definitive decision as to the meaning 
or federal constitutionality of the statute.

“We hold that the District Court has jurisdiction of 
this cause. It was error to dismiss the complaint for 
lack of jurisdiction. The judgment of the District Court 
is vacated and the case is remanded to it. We do not 
decide what procedures the District Court should follow 
on remand.”

See also A. F. of L. v. Watson, 327 U. S. 582, 599, 66 
S. Ct. 761, 90 L. Ed. 873, where, in directing a district 
court to retain a suit involving the constitutionality of a 
state statute pending the determination of proceedings in the 
state courts, the Supreme Court said that the purpose of the 
suit in the federal court would not be defeated by this action, 
since the resources of equity are adequate to deal with the 
problem so as to avoid unnecessary friction with state 
policies while cases go forward in the state courts for an 
expeditious adjudication of state law questions.

[12] The policy laid down by the Supreme Court does 
not require a stay of proceedings in the federal courts in 
cases of this sort if the state statutes at issue are free of 
doubt or ambiguity. See the opinion of Judge Parker in 
Bryan v. Austin, D.C.E.D.S.C., 148 F. Supp. 563, 567-568, 
where it was said:



App. 35

“I recognize, of course, that, in the application of the 
rule of comity, a federal court should stay action pend­
ing action by the courts of a state, where it is called 
upon to enjoin the enforcement of a state statute which 
has not been interpreted by the state courts, and where 
the statute is susceptible of an interpretation which 
would avoid constitutional invalidity. As the federal 
courts are bound by the interpretation placed by the 
highest court of a state upon a statute of that state, 
they should not enjoin the enforcement of a statute as 
violative of the Constitution in advance of such an 
interpretation, if it is reasonably possible for the 
statute to be given an interpretation which will render 
it constitutional. * * * The rule as to stay of proceed­
ings pending interpretation of a state statute by the 
courts of the state can have no application to a case, 
such as we have here, where the meaning of the statute 
is perfectly clear and where no interpretation which 
could possibly be placed upon it by the Supreme Court 
of the state could render it constitutional.”

We are not unmindful of the necessity of maintaining the 
delicate balance between state and federal courts under the 
concept of separate sovereigns. We agree that the consti­
tutionality of state statutes requiring special competence in 
the interpretation of local law should not be determined by 
federal courts in advance of a reasonable opportunity af­
forded the parties to seek an adjudication by the state court. 
With these basic principles we find no fault.

It must be remembered, however, that Congress has not 
seen fit to restrict the jurisdiction of the district courts by 
imposing as a condition precedent to action by the federal 
courts, the judicial pronouncement by the state court in 
cases where the constitutionality of a state statute is pre­



App. 36

sented and injunctive relief is requested. Concurrent juris­
diction still exists until modified in the wisdom of the legis­
lative branch of our government.

Neither are we given any clear formula to follow under 
the decisions of the Supreme Court. The more recent de­
cisions of the highest court suggest that statutory three- 
judge courts should be hesitant in exercising jurisdiction in 
the absence of state court action, or at least a reasonable 
opportunity to secure same. It is apparent to us that the 
Supreme Court has endeavored to grant cautious dis­
cretion to district courts in determining whether jurisdic­
tion should be exercised and the matter considered on its 
merits, as contrasted with the acceptance of jurisdiction as 
such. Should this court exercise such jurisdiction under the 
facts and circumstances of this case, bearing in mind the 
importance of the questions presented?

We are advised that Virginia is not alone in enacting 
legislation seriously impeding the activities of the plaintiff 
corporations through the passage of similar laws (43 Va. 
L. Rev. 1241). As heretofore noted, the problem for deter­
mination is essentially a federal question with no peculiari­
ties of local law. Where the statute is free from ambiguity 
and there remains no reasonable interpretation which will 
render it constitutional, there are compelling reasons to 
bring about an expeditious and final ascertainment of the 
constitutionality of these statutes to the end that a multi­
plicity of similar actions may, if possible, be avoided.

CONSTITUTIONALITY OF 
CHAPTERS 31 AND 32

This discussion brings us at last to a consideration of the 
attack made on the constitutionality of the statutes in their 
bearing upon the activities of the plaintiffs. The two regis­



App. 37

tration statutes, Chapters 31 and 32, are free from ambi­
guities which require a prior interpretation by the courts of 
the state and hence the obligation to pass on the question of 
constitutionality cannot be avoided.

Chapter 32 is the more sweeping of the two. Section 1 
declares that harmonious relations between the races are 
essential to the welfare, health and safety of the people of 
Virginia and that it is the duty of the government to exercise 
all available means to prevent conditions which impede the 
peaceful coexistence of all the peoples in the state, and that 
therefore it is vital to the public interest that information be 
obtained with respect to persons or corporations whose ac­
tivities may cause interracial tension or unrest.

Section 28 of Chapter 32 requires the registration of any

sҤ2. Every person, firm, partnership, corporation or association, 
whether by or through its agents, servants, employees, officers, or vol­
untary workers or associates, who or which engages as one of its prin­
cipal functions or activities in the promoting or opposing in any man­
ner the passage of legislation by the General Assembly in behalf of 
any race or color, or who or which has as one of its principal functions 
or activities the advocating of racial integration or segregation or 
whose activities cause or tend to cause racial conflicts or violence, or 
who or which is engaged or engages in raising or expending funds for 
the employment of counsel or payment of costs in connection with liti­
gation in behalf of any race or color, in this State, shall, within sixty 
days after the effective date of this act and annually within sixty days 
following the first of each year thereafter, cause his or its name to be 
registered with the clerk of the State Corporation Commission, as 
hereinafter provided; provided that in the case of any person, firm, 
partnership, corporation, association or organization, whose activities 
have not been of such nature as to require it to register under this act, 
such person, firm, partnership, corporation, association or organiza­
tion, wfithin sixty days following the date on which he or it engages 
in any activity making registration under this act applicable, shall cause 
his or its name to be registered with the clerk of the State Corpora­
tion Commission, as hereinafter provided; and provided, further, that 
nothing herein shall apply to the right of the people peaceably to 
assemble and to petition the government for a redress of grievances, 
or to an individual freely speaking or publishing on his own behalf in 
the expression of his opinion and engaging in no other activity subject 
to the provisions hereof and not acting in concert with other persons.”



App. 38

person who in concert with others engages as one of his 
principal activities (1) in promoting or opposing in any 
manner the passage of legislation by the General Assembly, 
in behalf of any race or color, or (2) in advocating racial 
integration or segregation; and the statute also requires the 
registration of any person, (3) whose activities cause or 
tend to cause racial conflict or violence, or (4) who is en­
gaged in raising or expending funds for the employment 
of counsel or the payment of costs in connection with racial 
litigation.

The Association is admittedly engaged in activities (1), 
(2) and (4) and the defendants have offered evidence tend­
ing to show that these activities, if successful in bringing 
about integration, would cause racial conflicts and violence. 
The Fund is engaged in activities (2) and (4).

The sort of registration required by Chapter 32 has a 
definite bearing upon the validity of the enactment, since a 
statement of the business of the registrant in much detail 
is prescribed. The registrant, if a corporation, is required 
by §3 of the statute to file a statement showing amongst 
other things the business address of all of its offices, the 
purpose for which it was formed, a copy of its charter, the 
names of its principal officers, and the names and addresses 
of all of the persons through whom it carries on its activities 
in the state, a list of its members and their addresses, a 
financial statement of assets and liabilities, an itemized list 
of its contributions and other income during the preceding 
year, and a list of its expenditures in detail.

Section 3 provides that, at the time of registration, infor­
mation as to the preceding year shall be furnished under 
oath as to the source of any funds received or expended for 
the purposes set forth in §2, including the name and ad­
dress of each contributor and an itemized statement of 
expenditures, and also, if the registrant is a corporation, a



App. 39

list of its members in the state and their addresses and a 
financial statement showing the assets and liabilities, the 
source of its income, itemizing contributions and the sources 
thereof, and a list of expenditures in detail.

Section 5 makes it a misdemeanor for any person to en­
gage in the activities described in §2 without registration, 
punishable, in the case of a corporation, by a fine not exceed­
ing $10,000, each day’s failure to register constituting a 
separate offense and punishable as such.

Section 6 provides that any person failing to comply with 
the Act may be enjoined from continuing its activities by 
any court of competent jurisdiction.

Section 9 excepts from the Act newspapers, periodicals, 
magazines or other like means admitted as second class 
matter in the United States Post Office, as well as radio, 
television, facsimile broadcast or wire service operations. 
Also excepted are persons or associations in a political elec­
tion campaign or persons acting together because of activi­
ties connected with political campaigns.

Undoubtedly the burden of supplying these statements 
imposed upon persons who engage in activities (1) and (2) 
constitutes a restriction upon the right of free speech which, 
as we have seen, the Association is entitled to exercise. 
Hence the question arises whether the statute is within the 
police powers which, in the past, have been properly exercised 
in many fields.9 The defendants point out that the promoting

9 Among the authorities cited by the defendants were cases uphold­
ing regulation by registration applicable to vocational activities (United 
States v. Harriss, 1954, 347 U. S. 612, 74 S. Ct. 808, 98 L. Ed. 989, 
and United States v. Slaughter, D. C. 1950, 89 F. Supp. 205, on lob­
byists; Viereck v. United States, 1943, 318 U. S. 236, 63 S. Ct. 561, 
87 L. Ed. 734, and United States v. Peace Information Center, D. C. 
1951, 97 F. Supp. 255, on foreign agents), subversion (Communist 
Party of United States v. Subversive Activities Control Board, 1954, 
96 U. S. App. D. C. 66, 223 F. 2d 531, and Albertson v. Millard,



App. 40

or opposing passage of legislation covered by clause (1) may 
involve lobbying, which has long been recognized as a proper 
subject of regulation by the state and federal governments. 
Thus it was decided in United States v. Harriss, 347 U. S. 
612, 74 S. Ct. 808, 98 L. Ed. 989, by a divided court, that 
the registration provisions of the Federal Regulation of 
Lobbying Act, 2 U. S. C. A. §261 et seq. did not violate 
freedom of speech, provided the scope of the Act was limited 
to persons who had solicited or received contributions to 
influence or defeat the passage of legislation and who in­
tended to accomplish this purpose through direct commu­
nication with members of Congress. The plain implication 
of the decision, as appears clearly from the dissenting opin­
ions, is that unless the Act were so limited it would be an 
unwarranted interference with the right of free speech. The 
lobbying statute of the State of Virginia, §§30-20 to 30-28, 
is likewise limited to those who employ a person to promote 
or oppose the passage of an act of the General Assembly 
and to a person accepting such employment. Such a person 
is required to register his name upon a legislative docket.

[13] The terms of clause (1) of §2 of the Act contain 
no such limitation. They apply to any person whose princi­
pal activities include “the promoting or opposing in any 
manner the passage of legislation by the General Assembly,” 
[emphasis added] excepting however, by §9 of the Act, 
newspapers and similar publications, communications by 
radio and television, and persons engaged in a political elec­
D. C. 1952, 106 F. Supp. 635), and presidential election activities 
(Burroughs v. United States, 1934, 290 U. S. 534, 54 S. Ct. 287, 
78 L. Ed. 484). Cases involving Congressional control of the second 
class mailing privilege (Lewis Publishing Co. v. Morgan, 1913, 229 
U. S. 288, 33 S. Ct. 867, 57 L. Ed. 1190), and state control over 
fraternities in state schools (Waugh v. Board of Trustees of University 
of Mississippi, 1915, 237 U. S. 589, 35 S. Ct. 720, 59 L. Ed. 1131, 
and Webb v. State University of New York, D. C. 1954, 125 F. Supp. 
910) are also cited.



App. 41

tion campaign. Hence the duty to register is imposed upon 
anyone who in concert with others merely speaks or writes 
on the subject, even if he has had no contact of any kind 
with the legislative body and has neither received nor spent 
any money to further his purpose. The discriminating and 
oppressive character of the provision is emphasized by the 
exemption of persons engaged in a political election cam­
paign who are free to speak without registration, whereas, 
persons having no direct interest in elections as such and 
concerned only with securing equal rights for all persons are 
covered by the statute. Manifestly so broad a restriction 
cannot be held valid under the ruling of United States v. 
Harriss, supra.

[14] The terms of clause (2) impinge directly upon the 
field of free speech for they apply to anyone, with the same 
exceptions, whose present activities include “the advocating 
of racial integration or segregation,” and so the same prob­
lem of the extent of regulatory power is presented. It must 
be borne in mind in considering the question that the prohi­
bition against laws abridging the freedom of speech, press 
and assembly contained in the First Amendment is not abso­
lute, for, as was said in American Communications Ass’n,
C. I. O. v. Douds, 339 U. S. 382, 394, 70 S. Ct. 674, 682, 
94 L. Ed. 925, “it has long been established that those free­
doms themselves are dependent upon the power of consti­
tutional government to survive.” Consequently in that case 
the non-Communist affidavits required by the Labor Man­
agement Relations Act, 29 U. S. C. A. § 141 et seq. were 
upheld even though the situation did not meet the clear and 
present danger test laid down in Schenck v. United States, 
249 U. S. 47, 39 S. Ct. 247, 63 L. Ed. 470; and in Dennis 
v. United States, 341 U. S. 494, 71 S. Ct. 857, 95 L. Ed. 
1137, the clear and present danger test was applied in up­



App. 42

holding a conviction under the Smith Act, 18 U. S. C. A. 
§2385, which made it a crime to organize a group which 
knowingly and wilfully advocates the violent overthrow of 
the Government of the United States.

[15, 16] The defendants insist that Chapter 32 was en­
acted for the commendable purpose of protecting the pub­
lic welfare and safety and therefore should be upheld. They 
point to the declaration of the policy in the preamble of the 
statute to eliminate all conditions which impede the peaceful 
co-existence of all persons in the state and which, according 
to the testimony of law enforcement officers, is threatened 
by the effort to establish integration of the races in the 
public schools. Great dependence is placed upon the decision 
of the Supreme Court in People of State of New York ex 
rel. Bryant v. Zimmerman, 1928, 278 U. S. 63, 49 S. Ct. 61, 
73 L. Ed. 184, which is described as the leading case in this 
field most pertinent to the matter now before the court. The 
Supreme Court upheld a New York statute, Civil Rights 
Law, McKinney’s Consol. Laws, c. 6, §§53, 56, aimed at 
the activities of the Ku Klux Klan, which required associ- 
tions having an oath-bound membership to file lists of their 
members and officers with a State officer and made it a crime 
for members to attend meetings knowing that the registra­
tion requirement had not been complied with. It was held 
that the statute as applied to a member of the Ku Klux Klan 
would not violate the due process clause of the Fourteenth 
Amendment since the state, for its own protection, was 
entitled to the disclosure as a deterrent to violations of the 
law; and also that there was no denial of equal protection in 
excepting labor unions, Masons and other fraternal bodies 
from the statutes, since there was a tendency on the part of 
the Ku Klux Klan to shroud its acts in secrecy and engage 
in conduct inimical to the public welfare.



App. 43

We do not think that these decisions justify the restric­
tion upon public discussion which Chapter 32 imposes upon 
the plaintiffs in this case. Obviously the purpose and effect 
of a regulatory act must be examined in each case in light 
of the existing situation. In the present instance the execu­
tive and legislative officers of the state have publicly and 
forcibly announced their determination to impede and, if 
possible, to prevent the integration of the races by all lawful 
means; and the statutes passed at the Extra Session were 
clearly designed to cripple the agencies that have had the 
greatest success in promoting the rights of colored persons 
to equality of treatment in the past, and are possessed of 
sufficient resources to make an effort at this time to secure 
the enforcement of the Supreme Court’s decree. The stat­
ute is not aimed, as the act considered in People of State of 
New York ex rel. Bryant v. Zimmerman, at curbing the 
activities of an association likely to engage in violations of 
the law, but at bodies who are endeavoring to abide by and 
enforce the law and have not themselves engaged in acts of 
violence or disturbance of the public peace.

The Act is not saved, in so far as the defendants are con­
cerned, by making it applicable to advocates of both sides of 
the dispute so that it requires a disclosure of the names of 
persons who may be led to acts of violence by reason of their 
hostility to integration. Such a provision does not lead to 
equality of treatment under the circumstances known by the 
Legislature to prevail. Registration of persons engaged 
in a popular cause imposes no hardship while, as the evidence 
in this case shows, registration of names of persons who 
resist the popular will would lead not only to expressions of 
ill will and hostility but to the loss of members by the plain­
tiff Association.

Nor can the statute be sustained on the ground that



App. 44

breaches of peace may occur if integration in the public 
schools is enforced. The same contention was made in 
Buchanan v. Warley, 245 U. S. 60, 38 S. Ct. 16, 62 L. Ed. 
149, where the court struck down an ordinance of the City 
of Louisville which forbade colored persons to occupy 
houses in blocks occupied for the most part by white persons. 
The court rejected the contention that the prohibition should 
be sustained on the ground that it served to diminish mis­
cegenation and to promote the public peace by averting race 
hostility. See 245 U. S. pages 73-74, 38 S. Ct. page 18:

“This drastic measure is sought to be justified under 
the authority of the state in the exercise of the police 
power. It is said such legislation tends to promote the 
public peace by preventing racial conflicts; that it tends 
to maintain racial purity; that it prevents the deteriora­
tion of property owned and occupied by white people, 
which deterioration, it is contended, is sure to follow 
the occupancy of adjacent premises by persons of color.

“The authority of the state to pass laws in the exer­
cise of the police power, having for their object the 
promotion of the public health, safety and welfare is 
very broad as has been affirmed in numerous and re­
cent decisions of this court. Furthermore, the exercise 
of this power, embracing nearly all legislation of a local 
character, is not to be interfered with by the courts 
where it is within the scope of legislative authority and 
the means adopted reasonably tend to accomplish a law­
ful purpose. But it is equally well established that the 
police power, broad as it is, cannot justify the passage 
of a law or ordinance which runs counter to the limi­
tations of the federal Constitution; that principle has 
been so frequently affirmed in this court that we need 
not stop to cite the cases.”



App. 45

This comment strikes home with peculiar force to the 
situation in Virginia where the attitude of the public author­
ities openly encourages opposition to the law of the land, 
which may easily find expression in disturbances of the 
public peace. That which was said in Grosjean v. American 
Press Co., 297 U. S. 233, 250, 56 S. Ct. 444, 449, 80 L. Ed. 
660, in respect to a state license tax imposed on the owners 
of newspapers is pertinent here:

“* * * the tax here involved is bad not because it 
takes money from the pockets of the appellees. If that 
were all, a wholly different question would be presented. 
It is bad because, in the light of its history and of its 
present setting, it is seen to be a deliberate and calcu­
lated device in the guise of a tax to limit the circulation 
of information to which the public is entitled in virtue 
of the constitutional guaranties. A free press stands 
as one of the great interpreters between the government 
and the people. To allow it to be fettered is to fetter 
ourselves.”

For our purpose it is of special significance that in 
Thomas v. Collins, 323 U. S. 516, 65 S. Ct. 315, 89 L. Ed. 
430, the Supreme Court held invalid a statute which required 
a union organizer merely to register and secure an organiz­
er’s card from a state officer before soliciting membership in 
a labor union in a public speech. It was said “that as a mat­
ter of principle a requirement of registration in order to 
make a public speech would seem generally incompatible with 
the exercise of free speech and free assembly”. The greater 
burden of the registration statutes in suit is manifest.

[17] The terms of clause (3) of §2 of the statute re­
quiring registration of anyone whose activities cause or 
tend to cause racial conflicts or violence require little dis­



App. 46

cussion. They are so vague and indefinite that the clause 
taken by itself does not satisfy the constitutional require­
ment that a criminal statute must give to a person of ordi­
nary intelligence fair notice of the kind of conduct that 
constitutes the crime, United States v. Harriss, 347 U. S. 
612, 74 S. Ct. 808, 98 L. Ed. 989.

Clause (4) of Chapter 32 requires the registration of any­
one who engages in raising or expending funds for the em­
ployment of counsel or the payment of costs in connection 
with litigation on behalf of any race or color. In connection 
with other provisions contained in Chapters 31, 33, 35 and 
36 relating to litigation, it constitutes an important part, 
perhaps the most important part, of the plan devised by the 
state authorities to impede or to prevent the integration of 
the races in the schools of the state; and it subjects the par­
ticipant to all of the details of registration above described.

In its broad coverage the statute applies to any individual 
who employs and pays a lawyer to act for him in a lawsuit 
involving a racial question. It also covers the plaintiff cor­
porations in their effort to raise the money which in the past 
has been used to assist the colored people in the prosecution 
of suits to secure their constitutional rights both before and 
after the decision in Brown v. Board of Education.10

10 The reported cases from both federal and state courts in this Cir­
cuit in which the Association or the Fund has taken an active part 
include: Dawson v. Mayor and City Council of Baltimore City (Lone­
some v. Maxwell), 4 Cir., 220 F. 2d 386, affirmed mem. 350 U. S. 877, 
76 S. Ct. 133, 100 L. Ed. 774, and Department of Conservation and 
Development, Division of Parks, Com. of Va. v. Tate, 4 Cir., 231 F. 
2d 615, certiorari denied 352 U. S. 838, 77 S. Ct. 58, 1 L. Ed. 2d 56, 
dealing with segregation at Maryland public beaches and Virginia 
public parks; Morgan v. Commonwealth, 184 Va. 24, 34 S. E. 2d 491, 
reversed 328 U. S. 373, 66 S. Ct. 1050, 90 L. Ed. 1317, and Fleming 
v. South Carolina Elec. & Gas Co., 4 Cir., 224 F. 2d 752, and, 4 Cir., 
239 F. 2d 277, concerning segregation in bus transportation; Alston v. 
School Board of City of Norfolk, 4 Cir., 112 F. 2d 992, 130 A. L. R.



App. 47

[ 18] The right of access to the courts is one of the great 
safeguards of the liberties of the people and its denial or 
undue restriction is a violation of the due process clauses of 
the Fifth and Fourteenth Amendments. That the restric­
tion is onerous in this instance cannot be denied, for it is not 
confined to identification of the collectors of the funds but 
requires the disclosure of every contributor and of every 
member of the Association whose annual dues may have 
been used in part to pay the expenses of litigation.

[19,20] Undoubtedly, a state may protect its citizens 
from fraudulent solicitation of funds by requiring a collector 
to establish his identity and his authority to act; and the 
state may also regulate the time and manner of the solici­
tation in the interest of public safety and convenience. 
Cantwell v. State of Connecticut, 310 U. S. 296, 306, 60 
S. Ct. 900, 84 L. Ed. 1213; Thomas v. Collins, 323 U. S.
1506, certiorari denied 311 U. S. 693, 61 S. Ct. 75, 85 L. Ed. 448, 
dealing with discriminatory fixing of school teachers’ salaries; Uni­
versity of Maryland v. Murray, 169 Md. 478, 182 A. 590, 103 A. L. R. 
706, and Kerr v. Enoch Pratt Free Library of Baltimore City, 4 Cir., 
149 F. 2d 212, certiorari denied 326 U. S. 721, 66 S. Ct. 26, 90 L. Ed. 
427, concerning racial discrimination in professional school admissions; 
Briggs v. Elliott, D. C., 103 F. Supp. 920, reversed 347 U. S. 483, 
74 S. Ct. 686, 98 L. Ed. 873, remanded 349 U. S. 294, 75 S. Ct. 753, 
99 L. Ed. 1083, decree entered, D. C„ 132 F. Supp. 776; Davis v. 
County School Board of Prince Edward County, D. C.. 103 F. Supp. 
337, reversed 347 U. S. 483, 74 S. Ct. 686, 98 L. Ed. 873, remanded 
349 U. S. 294, 75 S. Ct. 753, 99 L. Ed. 1083, decree entered sub nom.; 
Davis v. County School Board of Prince Edward County, D. C., 149 
F. Supp. 431, reversed Allen v. County School Board of Prince 
Edward County, 4 Cir., 249 F. 2d 462; School Board of City of 
Charlottesville, Va. v. Allen (County School Board of Arlington 
County, Va. v. Thompson), 4 Cir., 240 F. 2d 59; School Board of City 
of Newport News, Va. v. Atkins (School Board of City of Norfolk, 
Va. v. Beckett), 4 Cir., 246 F. 2d 325, certiorari denied 355 U. S. 855, 
78 S. Ct. 83, 2 L. Ed. 2d 63, and Moore v. Board of Education of 
Harford County, Md., 152 F. Supp. 114, relating to segregation in 
the public schools.



App. 48

516, 540, 65 S. Ct. 315, 89 L. Ed. 430. Corrupt Practices 
Acts which seek to preserve the purity of elections by requir­
ing the disclosure of the identity of those who strive to in­
fluence the choice of public officials are also a proper subject 
of legislative regulation. Burroughs v. United States, 290 
U. S. 534, 54 S. Ct. 287, 78 L. Ed. 484. The statute before 
us, however, presents a very different case. It requires not 
merely the identity of the collector of the funds but the 
disclosure of the name of every contributor. In effect, as 
applied to this case, it requires every person who desires to 
become a member of the Association and to exercise with it 
the rights of free speech and free assembly to be registered, 
and the size of his contribution to be shown. This seems 
to us far more onerous than the requirement of a license 
to speak, which was struck down as unconstitutional in 
Thomas v. Collins, supra, especially as in this instance the 
disclosure is prescribed as part of a deliberate plan to im­
pede the contributors in the assertion of their constitutional 
rights. In our opinion all four clauses of §2 as applied to 
the plaintiffs in this case are unconstitutional.

[21, 22] In reaching this conclusion we may fairly con­
sider not only the rights of the plaintiff corporations but 
also the rights of the individuals for whom they speak, par­
ticularly the rights of the members of the Association and 
generally the members of the colored race in whose interests 
the plaintiffs carry on their work. The rights that the plain­
tiffs assert take their color and substance from the rights of 
their constituents; and it is now held that where there is 
need to protect fundamental constitutional rights the rule 
of practice is relaxed, which confines a party to the asser­
tion of his own rights as distinguished from the rights of 
others. See Barrows v. Jackson, 346 U. S. 249, 257, 73 S. 
Ct. 1031, 97 L. Ed. 1586. This rule was applied in Brewer



App. 49

v. Hoxie School District, 8 Cir., 238 F. 2d 91, 104, where 
the school board in an Arkansas county brought suit to re­
strain certain organizations from obstructing the board in 
its efforts to secure the equal protection of the laws to all 
persons in the operation of the public schools in the district. 
The court said:

“The school board having the duty to afford the chil­
dren the equal protection of the law has the correlative 
right, as has been pointed out, to protection in per­
formance of its function. Its right is thus intimately 
identified with the right of the children themselves. 
The right does not arise solely from the interest of the 
parties concerned, but from the necessity of the gov­
ernment itself. * * * Though, generally speaking, the 
right to equal protection is a personal right of individ­
uals, this is ‘only a rule of practice’, * * * which will 
not be followed where the identity of interest between 
the party asserting the right and the party in whose 
favor the right directly exists is sufficiently close.”

[23] For like reasons Chapter 31, which covers much the 
same ground as clause (4 ) of §2 of Chapter 32, must also 
be held invalid. The introductory paragraph of §2 is as 
follows:

“No person shall engage in the solicitation of funds 
from the public or any segment thereof when such 
funds will be used in whole or in part to commence or 
to prosecute further any original proceedings, unless 
such person is a party or unless he has a pecuniary right 
or liability therein, nor shall any person expend funds 
from whatever source received to commence or to pros­
ecute further any original proceedings, unless such



App. 50

person is a party or has a pecuniary right or liability 
therein, until any person shall f i r s t —and then follows

Section 2(1) which requires the corporation to file annu­
ally a copy of its charter, a certified list of its officers and 
directors and members, a statement showing the source of 
each contribution or other item of revenue received during 
the preceding year and, if required by the State Corpora­
tion Commission, the name and address of each contribu­
tor ; also a statement showing in detail the expenditures dur­
ing the preceding year and any other information required 
by the State Corporation Commission.

Section 3 makes a violation of the Act a misdemeanor 
punishable by fine of not more than $10,000 and the denial 
of admission to do business in the state. Violations of the 
Act may be enjoined in any court of record having civil 
jurisdiction. Every director and officer of the corporation 
and every person responsible for the management of its 
affairs is personally liable for the payment of the fine.

Further consideration of the restrictions imposed upon 
litigation on behalf of the colored race by the Virginia plan 
will be found in the following discussion in respect to Chap­
ters 33, 35 and 36 also passed at the Extra Session of 1956.

CHAPTER 35
Chapters 33, 35 and 36 all relate to the improper practice 

of law. They are of prime importance since they furnish 
the basis for the contention of the prosecuting officers of 
the state that the plaintiff corporations are unlawfully en­
gaged in the practice of law in Virginia and hence are not 
entitled to maintain these suits. Chapters 35 and 36, and 
the amendment of the sections of the Virginia Code relating 
to the illegal practice of law contained in Chapter 33, are



App. 51

new in the statute law of the state and are essential parts 
of the plan which deprives the colored people of the state of 
the assistance of the Association and the Fund in the asser­
tion of their constitutional rights. To this end each of the 
statutes contains provisions which would bar the Associ­
ation and the Fund from continuing to give the kind of 
assistance to colored plaintiffs in racial litigation which they 
have rendered for many years in the past.

We consider first Chapter 35 since it contains a carefully 
phrased definition of the crime of barratry and is free from 
ambiguity. Barratry is defined in § 1 as stirring up litiga­
tion ; a barrator is one who stirs up litigation; and stirring 
up litigation means instigating a person to institute a suit 
at law or equity. The terms “instigating,” “justified” and 
“direct interest” are defined in §§ l(d ), (e) and (f) as 
follows:

“ (d) ‘Instigating’ means bringing it about that all 
or part of the expenses of the litigation are paid by the 
barrator or by a person or persons (other than the 
plaintiffs) acting in concert with the barrator, unless 
the instigation is justified.

“ (e) ‘Justified’ means that the instigator is related 
by blood or marriage to the plaintiff whom he insti­
gates, or that the instigator is entitled by law to share 
with the plaintiff in money or property that is the sub­
ject of the litigation or that the instigator has a direct 
interest in the subject matter of the litigation or occu­
pies a position of trust in relation to the plaintiff; or 
that the instigator is acting on behalf of a duly consti­
tuted legal aid society approved by the Virginia State 
Bar which offers advice or assistance in all kinds of 
legal matters to all members of the public who come to



App. 52

it for advice or assistance and are unable because of 
poverty to pay legal fees.

“ (f) ‘Direct interest’ means a personal right or a 
pecuniary right or liability.”

The Legislature was careful to make exception of certain 
special situations and class suits in the following language:

“This act shall not be applicable to attorneys who are 
parties to contingent fee contracts with their clients 
where the attorney does not protect the client from 
payment of the costs and expense of litigation, nor shall 
this act apply to any matter involving annexation, zon­
ing, bond issues, or the holding or results of any elec­
tion or referendum, nor shall this act apply to suits per­
taining to or affecting possession of or title to real or 
personal property, regardless of ownership, nor shall 
this act apply to suits involving the legality of assess­
ment or collection of taxes or the rates thereof, nor 
shall this act apply to suits involving rates or charges 
or services by common carriers or public utilities, nor 
shall this act apply to criminal prosecutions, nor to the 
payment of attorneys by legal aid societies approved by 
the Virginia State Bar, nor to proceedings to abate 
nuisances. Nothing herein shall be construed to be in 
derogation of the constitutional rights of real parties 
in interest to employ counsel or to prosecute any avail­
able legal remedy under the laws of this State.”

The reference to the Virginia State Bar in §§ 1 (e) and 
(f) is explained by the terms of Chapter 47, also passed at 
the Extra Session, which authorized the State Bar through 
its governing body to promulgate rules and regulations gov­
erning the function and operation of legal aid societies, and



App. 53

empowered the Attorney General to enforce such rules and 
regulations if authorized to do so by the State Bar. The 
record in this case does not show whether the State Bar 
has taken action under the statute, but for present purposes 
this is not important since § l(e )  of Chapter 35 limits the 
regulatory power of the State Bar to legal aid societies 
which olfer advice or assistance in all kinds of legal matters 
to all members of the public who come to it for advice and 
assistance and are unable because of poverty to pay legal 
fees. Organizations such as the Association and the Fund, 
which offer advice and assistance to a limited class of per­
sons only, could not claim that they were “justified”, even 
if they should have been approved by the State Bar.

Sections 2 and 3 make it a misdemeanor to engage in 
barratry punishable, if the barrator is a foreign corporation, 
by a fine of not more than $10,000 and the revocation of its 
certificate of authority to do business in the state; and 
§6 declares that an attorney at law who violates the Act is 
guilty of unprofessional conduct and that his license to 
practice law shall be revoked after hearing (under §54-74 
of the Code) for such period as the court may determine.

Obviously the plaintiff corporations will be amenable to 
these penalties if they continue to pay any part of the ex­
penses of racial litigation in Virginia since they would not 
be “justified” within the terms of § 1 (e) of the Act; and 
attorneys at law connected with the plaintiff corporations 
who prosecute suits for colored persons, when authorized 
by them to do so, would also be liable to punishment if they 
assist, as they have done in the past, in bringing it about 
that any part of the expenses of litigation are paid by the 
Association or by the Fund.

[24-27] The broad question is therefore raised as to 
whether it is within the power of the state to make it a



App. 54

crime for any corporation other than a general legal aid 
society to pay in whole or in part the expenses of litigation 
if it has only a general philanthropic or charitable interest 
in the litigation and does not have the kind of special interest 
described in the statute. Specifically, as applied to the facts 
of this case, the question is whether Virginia may make it 
a crime for organizations interested in the preservation of 
civil rights to contribute money for the prosecution of law 
suits instituted to promote this cause.

The right of the state to require high standards of quali­
fication for those who desire to practice law within its 
borders and to revoke or suspend the license to practice law 
of attorneys who have been guilty of unethical conduct is 
unquestioned. Schware v. Board of Bar Examiners, 353 
U. S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796; Richmond Ass’n 
of Credit Men v. Bar Association, 167 Va. 327, 189 S. E. 
153; Campbell v. Third Dist. Committee, 179 Va. 244, 18 
S. E. 2d 883. Solicitation of business by an attorney is 
regarded as unethical conduct and a proper subject of dis­
ciplinary action; and it has been held that the state may 
prohibit a layman engaged in the business of collecting 
accounts from soliciting employment for this purpose, since 
a regulation which aims to bring the conduct of the business 
in harmony with the ethical practices of the legal profes­
sion is reasonable. McCloskey v. Tobin, 252 U. S. 107, 
40 S. Ct. 306, 64 L. Ed. 481. Independent of statute, it is 
contrary to public policy for a corporation to practice law, 
directly or indirectly, since the relationship of attorney and 
client is one involving the highest trust and confidence and 
cannot exist between an attorney employed by the corpora­
tion and a client of the corporation; and so in Richmond 
Ass’n of Credit Men v. Bar Association, supra, it was held 
that a credit association was engaged in the unlawful prac­
tice of law when, acting with the authority of creditors, it



App. 55

selected and paid the lawyers who were employed to make 
the collection by suit or otherwise.

The standards of the legal profession in these respects 
are carefully set forth in Canon 28 of the Canons of Pro­
fessional Ethics of the American Bar Association, which 
condemns the stirring up of strife and litigation and declares 
it unprofessional for a lawyer to volunteer advice to bring 
a law suit except in cases where ties of blood, relationship 
or trust make it his duty to do so. It is declared to be dis­
reputable to engage in such acts as hunting up defects in 
titles or seeking claims for personal injuries, or employing 
agents or runners for like purposes.

It is manifest, however, that the activities of the plaintiff 
corporations are not undertaken for profit or for the promo­
tion of ordinary business purposes but, rather, for the secur­
ing of the rights of citizens without any possibility of finan­
cial gain. Its activities are not covered by Canon 28 but 
rather by Canon 35 entitled Intermediaries, which relates 
inter alia to the aid rendered to indigent litigants by chari­
table societies and provides in part as follows:

“The professional services of a lawyer should not be 
controlled or exploited by any lay agency, personal or 
corporate, which intervenes between client and lawyer. 
A lawyer’s responsibilities and qualifications are indi­
vidual. He should avoid all relations which direct the 
performance of his duties by or in the interest of such 
intermediary. A lawyer’s relation to his client should 
be personal, and the responsibility should be direct to 
the client. Charitable societies rendering aid to the in­
digents are not deemed such intermediaries.”

Canon 35 was cited with approval in Richmond Ass’n of 
Credit Men v. Bar Association, 167 Va. at page 339, 189



App. 56

S. E. at page 159. Indeed the exclusion of lawyers when 
acting for benevolent purposes and charitable societies, as 
distinguished from business corporations, from the restric­
tions imposed by the canons of Professional Ethics has long 
been recognized in the approval given by the courts to serv­
ices voluntarily offered by members of the bar to persons 
in need, even when the attorneys have been selected by 
corporations organized to serve a cause in a controversial 
field. See the historic incidents listed in the opinion In re 
Ades, D. C. Md., 6 F. Supp. 467, 475; and see also Gun­
nels v. Atlanta Bar Ass’n, 191 Ga. 366, 12 S. E. 2d 602, 
132 A. L. R. 1165, where the Supreme Court of Georgia 
refused an injunction to restrain the bar association and its 
members from offering their services to borrowers of money 
as usurious rates in defense of suits that might be brought 
against them. The Court said in 191 Ga. at page 382, 12 
S. E. 2d at page 610:

“It is not wrongful to induce a repudiation of an 
illegal contract. * * * Nor was the defendant’s offer 
to represent free of charge persons caught in the toils 
of the usurious moneylender in defending against such 
illegal exactions, and to represent them in bringing 
actions to recover amounts illegally paid under loan 
contract a violation of the Code, * * * in reference to 
the solicitation of legal employment and the offense of 
barratry. We do not believe that it is true, as contended 
by counsel for the plaintiff, that the enforcement of the 
usury laws of this State is a matter solely for the law 
enforcement officers and of those from whom usury is 
being exacted, and that it is illegal and unethical for 
lawyers to publicly criticize an alleged widespread vio­
lation of such laws and to seek to eradicate the evil by 
the means here shown. Much could be said as to why



App. 57

their position in the community makes it entirely appro­
priate that they undertake such a movement and assume 
such responsibilities in reference to the general welfare 
of the public. We see no reason why the judgment of 
the learned judge should be disturbed.”

Chapter 35, in failing to recognize this settled rule, vio­
lates well-established constitutional principles in its bearing 
upon the plaintiff corporations. “A State cannot exclude a 
person from the practice of law or from any other occupa­
tion in a manner or for reasons that contravene the Due 
Process or Equal Protection Clause of the Fourteenth 
Amendment”, Schware v. Board of Bar Examiners, 353 
U. S. 232, 238, 77 S. Ct. 752, 756, 1 L. Ed. 2d 796. In the 
first place, the statute obviously violates the equal protection 
clause, for it forbids the plaintiffs to defray the expenses 
of racial litigation, while at the same time it legalizes the 
activities of legal aid societies that serve all needy persons 
in all sorts of litigation. No argument has been offered to 
the court to sustain this discrimination. Moreover, Chapter 
35 violates the due process clause, for it is designed to put 
the plaintiff corporations out of business by forbidding them 
to encourage and assist colored persons to assert rights 
established by the decisions of the Supreme Court of the 
United States. The activities of the plaintiffs as they appear 
in these cases do not amount to a solicitation of business or 
a stirring up of litigation of the sort condemned by the 
ethical standards of the legal profession. They comprise in 
substance public instruction of the colored people as to the 
extent of their rights, recommendation that appeals be made 
to the courts for relief, offer of assistance in prosecuting the 
cases when assistance is asked, and the payment of legal 
expenses for people unable to defend themselves; and the 
attorneys who have done the work have done so only when



App. 58

authorized by the plaintiffs. The evidence is uncontradicted 
that the initial steps which have led to the institution and 
prosecution of racial suits in Virginia with the assistance of 
the Association and the Fund have not been taken until the 
prospective plaintiffs made application to one or the other 
of the corporations for help. In our opinion the right of 
the plaintiff corporations to render this assistance cannot be 
denied.

No doubt, the State of Virginia has the right reasonably 
to regulate the practice of law, but, where that regulation 
prohibits otherwise lawful activities without showing any 
rational connection between the prohibition and some per­
missible end of legislative accomplishment, the regulation 
fails to satisfy the requirements of due process of law. 
Here, under the guise of regulating unauthorized law prac­
tice, the General Assembly has forbidden plaintiffs to con­
tinue their legal operations.

Chapters 33 and 36 are also phrased so as to interfere 
with the activities of the plaintiffs. This is done in Chapter 
33 by amending §§54-74, 54-78 and 54-79 of Article 7 of 
the Code relating to malpractice and to the improper solici­
tation of legal business for an attorney by a “runner” or 
“capper”, so as to include within the definition of these terms 
a person who employs an attorney in connection with any 
judicial proceeding in which the person has no pecuniary 
right or liability. The language of the statute, especially 
portions of §54-74(6) and §54-78(1),11 is obscure and *

n Ҥ 54-74, * * *
“ (6) ‘Any malpractice, or any unlawful or dishonest or unworthy 

or corrupt or unprofessional conduct’, as used in this section, shall be 
construed to include the improper solicitation of any legal or profes­
sional business or employment, either directly or indirectly, or the 
acceptance of employment, retainer, compensation or costs from any 
person, partnership, corporation, organization or association with 
knowledge that such person, partnership, corporation, organization or 
association has violated any provision of Article 7 of this chapter * * *



App. 59

difficult to understand, but the general purpose seems to be 
to hit any organization which participates in a law suit in 
which it has no financial interest and also to fasten the 
charge of malpractice upon any lawyer who accepts em­
ployment from such an organization. If the statute should 
be so interpreted as to forbid a continuance of the activities 
of the plaintiff corporations in respect to litigation as de­
scribed in this opinion, it would in large measure destroy 
their effectiveness.

[28] Chapter 36, § 1(a), is aimed at anyone not having 
a direct interest in the proceeding, who gives, receives or 
solicits anything of value as an inducement to any person 
to commence a proceeding in any court or before any ad­
ministrative agency of the state or in any United States 
court in Virginia against the Commonwealth of Virginia, 
or any department or subdivision thereof, or any person act­
ing as an officer or employee of any of the foregoing. Section 
1(b) makes it unlawful for anyone who has no direct inter-

Ҥ 54-78. As used in this article:
“ (1) A ‘runner’ or ‘capper’ is any person, corporation, partnership 

or association acting in any manner or in any capacity as an agent for 
an attorney at law within this State or for any person, partnership, 
corporation, organization or association which employs, retains or 
compensates any attorney at law in connection with any judicial pro­
ceeding in which such person, partnership, corporation, organization 
or association is not a party and in which it has no pecuniary right or 
liability, in the solicitation or procurement of business for such attor­
ney at law* or for such person, partnership, corporation, organization 
or association in connection with any judicial proceedings for which 
such attorney or such person, partnership, corporation, organization 
or association is employed, retained or compensated.

“The fact that any person, partnership, corporation, organization 
or association is a party to any judicial proceeding shall not authorize 
any runner or capper to solicit or procure business for such person, 
partnership, corporation, organization or association or any attorney 
at law employed, retained or compensated by such person, partnership, 
corporation, organization or association.

“ (2) An ‘agent’ is one who represents another in dealing with a 
third person or persons.”



App. 60

est in the subject matter of the proceeding to advise or 
otherwise instigate the bringing of a suit or action against 
any of the defendants above described. Here again the lan­
guage is ambiguous, and doubts have arisen as to whether 
the giving of advice to persons as to their constitutional 
rights amounts to the “instigation” 12 of a suit or whether 
the giving of money to needy litigants amounts to an “in­
ducement” to bring a suit. If so construed as to restrict the 
activities of the plaintiff corporations disclosed by the evi­
dence in these cases, their effectiveness would be in large 
measure destroyed. Since Chapters 33 and 36 are vague 
and ambiguous we do not pass upon their constitutionality.

We have come perforce to these final conclusions since 
the contrary position cannot be justly entertained. If the 
Acts of the General Assembly of Virginia should be held 
to outlaw the activities of the plaintiff corporations, the 
Commonwealth would be free to use all of its resources in 
its search for lawful methods to postpone and, if possible, 
defeat the established constitutional rights of a body of 
its citizens, while the colored people of the state would be 
deprived of the resources needed to resist the attack in the 
state and federal courts. The duty of this court to avoid 
such a situation, if possible, is manifest.

Accordingly, an injunction will be granted restraining the 
defendants from proceeding against the plaintiffs under 
Chapters 31, 32 and 35 because of the activities of the plain­
tiffs in the past on behalf of the colored people in Virginia 
as disclosed in the evidence in these cases or because of the 
continuance of like activities in the future.

As to Chapters 33 and 36, the complaints will be retained 
for a reasonable time pending the determination of such

12 In Chapter 35 the verb “to instigate” is given a very precise defi­
nition, but in Chapter 36 it is given no definition at all.



App. 61

proceedings in the state courts as the plaintiffs may see fit 
to bring to secure an interpretation of these statutes; and 
in the meantime, the court will assume that the defendants 
will continue to cooperate, as they have in the past, in with­
holding action under the authority of the statutes until a 
final decision is reached; and the plaintiffs may petition the 
court for further action if at any time they deem it their 
interest to so do.

W alter  E. H o f f m a n , District Judge, concurs.

S t e r l in g  H u t c h e s o n , Chief Judge (concurring in part 
and dissenting in part).

This Court has before it for determination certain ques­
tions which may be resolved into one, simply stated; that is, 
whether this Court is to be bound by well-known principles 
of judicial construction, firmly embedded in the fabric of 
the law and announced time after time by the Supreme 
Court of the United States, or is this Court to disregard 
these principles and follow a new course based upon infer­
ences tortuously drawn from expressions which may be 
found in some of the opinions? A mere statement of the 
question demonstrates its importance. That importance is 
accentuated by the fact that the case involves the tradition­
ally delicate balance between the courts of the states and the 
Federal Courts. The importance of the principle can hardly 
be over emphasized.

Repeatedly the Courts have discussed at length the “deep­
ly rooted” doctrine which has become a “time-honored canon 
of constitutional adjudication” that Federal Courts do not 
interfere with state legislation when the asserted federal 
right may be preserved without such interference. We have 
been told by the Supreme Court in clear language that



App. 62

where it is necessary to construe a state statute in order to 
determine whether a federal right is involved the construc­
tion must be that of the court of the state by which the 
statute is to be enforced. The rule and the reason for the 
rule have been made plain by the same authority.

Before discussing the areas in which I find myself in dis­
agreement with my learned associates, I am glad to concur 
in their decision that the exercise of jurisdiction be withheld 
as to Chapters 33 and 36 of the Acts of the General Assem­
bly until those statutes have been construed by the courts of 
the state, although I do not agree with the reasoning upon 
which that decision is based.

At this point my concurrence ends. Since my views con­
cerning the issues are so much at variance with those ex­
pressed in the majority opinion I am constrained to file this 
separate opinion. In addition to disagreement with the legal 
conclusions of the majority of the Court, I find myself in 
disagreement with their statement of the facts. In my opin­
ion the evidence does not support many factual conclusions 
recited in the elaborate statement found in the opinion. 
Since the facts are of minor importance at this point, I shall 
not undertake to set out the numerous errors and omissions 
which appear. It would serve no useful purpose and would 
unduly prolong this opinion. However, for the record I 
register my disagreement.

In passing, attention is called to what I regard as an im­
material and unnecessary discussion of extraneous matter 
relating to the action of the Supreme Court in the School 
Segregation Cases, speeches of the Governor of Virginia, 
expressions contained in a report of a Legislative Commis­
sion appointed by the Governor, resolutions of the General 
Assembly, the Constitutional Referendum, and the deci­
sions involving what is known as the Pupil Placement Act.



App. 63

The lengthy recital pertaining to the legislative history can 
have only one effect, which is to becloud the issue before the 
Court and to surround the case with an atmosphere foreign 
to the judicial calm which should prevail when a legal prin­
ciple is dealt with. I question the relevancy of much of this 
material at any time, but certainly it can have no proper 
place here where we are concerned with orderly procedure 
in a court of law and with a principle of first importance. 
The issue should not be obscured by an emotional approach.

Such facts as need be stated here are simple and may be 
briefly recited. Plaintiffs are corporations chartered under 
the laws of the State of New York and licensed to do busi­
ness in Virginia. The defendants are the Attorney General 
of Virginia and certain other officials, charged with en­
forcing the laws of the Commonwealth. The principal ob­
jectives of the plaintiffs, so far as here pertinent, are the 
dissemination of information concerning the legal rights 
of members of the colored race, the organization of groups 
to seek the enforcement of such rights, the solicitation of 
funds to be used, and the use of such funds, in promoting 
the objectives stated and in financing litigation involving 
cases in which it is alleged that members of that race are 
being discriminated against on account of racial origin.

In Extra Session in 1956 the General Assembly of Vir­
ginia passed certain statutes which are the subject matter 
of the present controversy. Those statutes fall into two 
categories.

The first, consisting of Chapters 31 and 32, are designed 
to regulate the conduct of persons or corporations who 
solicit funds to be used and to expend funds to finance or 
maintain litigation of others. Emphasis is placed upon ac­
tivities pertaining to conflicting racial interests. The statutes 
would be applicable to activities such as those engaged in



App. 64

by the plaintiffs and those of other organizations similarly 
operating in Virginia.

The second set of statutes, being Chapters 33, 35 and 36, 
are designed to regulate the conduct of those licensed to or 
engaged in the practice of law in Virginia.

The plaintiffs contend that the statutes are unconstitu­
tional in that if enforced they would be deprived of rights 
guaranteed under the Fourteenth Amendment to the Consti­
tution of the United States. The relief sought is an injunc­
tion and a declaratory judgment. While there are actually 
two cases brought by separate plaintiffs the issues are such 
that they are being dealt with as one.

Motions to dismiss for lack of jurisdiction have been filed 
and there has been a full hearing of the case. The various 
questions presented have been argued, and may be concisely 
stated as dealing with the following:

1. Jurisdiction of the Court;
2. Motives of the General Assembly in enacting the 

statutes;
3. Whether in the exercise of its discretion the Court 

should accept jurisdiction if it exists;
4. The construction of the statutes.

J u r isd ic t io n  of t h e  Court

The jurisdiction of the Court is attacked upon two 
grounds. The first relates to the jurisdictional amount of 
$3,000 under the Diversity Statute, and the second relates 
to the civil rights of a corporation under the Fourteenth 
Amendment.

(a) While it may be debatable, it is my view that the 
jurisdictional amount has been shown by the evidence pre­
sented sufficiently to justify the Court in hearing the cases.



App. 65

(b) The defendants rely upon Hague v. C. I. O., 307 
U. S. 496, 59 S. Ct. 954, 83 L. Ed. 1423, in support of their 
contention that the corporations are not entitled to the privi­
leges and immunities which the Fourteenth Amendment se­
cured for citizens of the United States. For present pur­
poses a recital of the facts of that case may be limited to 
the statement that the plaintiffs consisted of certain individ­
uals and a corporation, all of whom contended that the en­
forcement of a city ordinance would deprive them of the 
right of free speech. The case is directly in point. There 
were a number of opinions filed. In the main syllabus the 
following language is used:

‘‘The ordinances and their enforcement violate the 
rights under the Constitution of the individual plain­
tiffs, citizens of the United States; but a complaining 
corporation can not claim such rights. [307 U. S. at 
page 514] [59 S. Ct. at page 963].”

In the syllabus covering the opinion of Mr. Justice Rob­
erts substantially the same analysis is given (syl. 2(b) ). See 
also syllabus 4 of the opinion of Mr. Justice Stone [307 U. 
S .527]:

In the opinion of Mr. Justice Roberts, in which Mr. Jus­
tice Black concurred, the following appears in 307 U. S. on 
page 514, 59 S. Ct. on page 963:

“Natural persons, and they alone, are entitled to the 
privileges and immunities which Section 1 of the Four­
teenth Amendment secured for ‘citizens of the United 
States’. (Citing Cases.) Only the individual respond­
ents may, therefore, maintain this suit.”

In the opinion of Mr. Justice Stone, with Mr. Justice



App. 66

Reed concurring, 307 U. S. on page 527, 59 S. Ct., on page 
969, the following language appears:

“Since freedom of speech and freedom of assem­
bly are rights secured to persons by the due process 
clause, all of the individual respondents are plainly 
authorized by § 1 of the Civil Rights Act of 1871 to 
maintain the present suit in equity to restrain infringe­
ment of their rights. As to the American Civil Lib­
erties Union, which is a corporation, it cannot be said 
to be deprived of the civil rights of freedom of speech 
and of assembly, for the liberty guaranteed by the due 
process clause is the liberty of natural, not artificial, 
persons.” (Citing cases.)

In the concurring opinion of Mr. Chief Justice Hughes 
in 307 U. S. on page 532, 59 S. Ct. on page 972, the fol­
lowing appears:

“With respect to the point as to jurisdiction I agree 
with what is said in the opinion of Mr. Justice Roberts 
as to the right to discuss the National Labor Relations 
Act, 29 U. S. C. A. § 151 et seq., being a privilege of a 
citizen of the United States, but I am not satisfied that 
the record adequately supports the resting of jurisdic­
tion upon that ground. As to that matter, I concur in 
the opinion of Mr. Justice Stone.”

See dissenting opinion of Mr. Justice Butler.
Mr. Justice McReynolds dissented, being of opinion the 

case should be remanded to the District Court with instruc­
tions to dismiss the bill, he having concluded that the District 
Court should have refused to interfere with the rights of 
the municipality to control its parks and streets. He used 
the following language:



App. 67

“Wise management of such intimate local affairs, 
generally, at least, is beyond the competency of federal 
courts, and essays in that direction should be avoided.

“There was ample opportunity for respondents to 
assert their claims through an orderly proceeding in 
courts of the state empowered authoritatively to inter­
pret her laws with final review here in respect of federal 
questions.”

See also interpretation of Mr. Justice Frankfurter in 
Bridges v. State of California, 314 U. S. 252, 280, 62 S. 
Ct. 190, 86 L. Ed. 192, where in a dissenting opinion he 
discusses the rights of the states in respect of their internal 
affairs. He cites Hague as drawing a distinction between 
the rights of natural and artificial persons.

The plaintiffs here, both being corporations, contend they 
are entitled to such protection and point to the earlier case 
of Grosjean v. American Press Company, 297 U. S. 233, 
56 S. Ct. 444, 80 L. Ed. 660,1 and other cases involving cor­
porations engaged in the publication of newspapers, maga­
zines, etc. A careful examination of Grosjean discloses that 
it does not support such contention. On page 244 of 297 
U. S., on page 447 of 56 S. Ct. the Court, after observing 
that freedom of speech and of the press are rights of the 
same fundamental character, (the Court did not say the 
rights are the same as would appear to be the interpretation 
by the majority of this Court) safeguarded by the due proc­
ess of law clause, used the following language:

“Appellant contends that the Fourteenth Amendment 
does not apply to corporations; but this is only partly

1 Cited in Hague v. C. I. O., 307 U. S. at page 519, 59 S. Ct. at 
page 965.



App. 68

true. A corporation, we have held, is not a ‘citizen’ 
within the meaning of the privileges and immunities 
clause. Paul v. Virginia, 8 Wall. 168, 19 L. Ed. 357. 
But a corporation is a ‘person’ within the meaning of 
the equal protection and due process of law clauses, 
which are the clauses involved here. Covington & Lex­
ington Turnpike Co. v. Sandford, 164 U. S. 578, 592, 
17 S. Ct. 198, 41 L. Ed. 560; Smyth v. Ames, 169 
U. S. 466, 522, 18 S. Ct. 418, 42 L. Ed. 819.”

The opinion concludes with the following language:

“Having reached the conclusion that the act impos­
ing the tax in question is unconstitutional under the due 
process of law clause because it abridges the freedom 
of the press, we deem it unnecessary to consider the 
further ground assigned, that it also constitutes a denial 
of the equal protection of the laws.”

This language should set at rest the contention that that 
case is controlling as respects the position of the plaintiffs. 
It could not be clearer that it does not support that conten­
tion but it is consistent with Hague.

Grosjean and similar cases relate primarily to and are 
founded upon the right of freedom of the press. It follows 
that Hague is controlling and corporations are not entitled 
to the rights of a natural person. From the nature of the 
rights it is obvious that it was never intended that a cor­
poration should enjoy such rights as a natural person. It is 
equally obvious that freedom of the press should not be 
limited to natural persons. This appears determinative of 
the rights of the plaintiffs. I realize that it is a question 
which properly may be determined by the state court and 
a determination by this Court at this time might be prema­
ture. My view is that it should finally dispose of the case.



App. 69

M otives of t h e  Ge n er a l  A ssem bly  
in  E n a c t in g  t h e  S ta tu tes

The emphasis placed by the majority upon collateral 
occurrences would indicate reliance upon such occurrences 
in reaching the conclusions there stated as a justification for 
disregarding accepted rules of both procedure and construc­
tion. The majority has undertaken to assess the motives of 
the legislative body as a collective whole as distinguished 
from the familiar rule relating to legislative intention or 
purpose in construing statutes of uncertain meaning. They 
say, in effect, that by the enactment of certain other statutes 
relating to public schools coupled with the statutes now under 
attack, the Legislature has attempted to provide a legal 
means of avoiding compliance with the order of the Supreme 
Court of the United States in the School Segregation Cases. 
From this premise they infer that the statutes here involved 
are tainted with illegality by way of association — a some­
what novel concept which seems to have acquired some judi­
cial recognition in recent times. They appear to proceed 
upon the theory that the Supreme Court has ordered the 
public schools mixed racially. As has been repeatedly pointed 
out, the Supreme Court did not make such an order. If law­
ful means to comply with the order issued and at the same 
time retain unmixed schools can be found, there is no unlaw­
ful thwarting of the Supreme Court mandate and conse­
quently no invalidity shown. However, we are not now 
concerned with this question.

The issue here goes deeper. That issue is whether the 
Judicial branch of the Government can sit in judgment upon 
the collective personal motives or influences activating those 
charged with the responsibility of conducting the affairs of 
one of the other co-ordinate branches. If this can be done 
the result may be far-reaching indeed.



App. 70

While it is proper for the Court in construing a statute to 
inquire into the intention or purpose of its enactment when 
its language is ambiguous or uncertain, inquiry into the 
motives prompting the members of the legislative body in 
casting their votes respecting such enactment presents an 
entirely different situation. Fletcher v. Peck, 6 Cranch 87, 
10 U. S. 87, 3 L. Ed. 162, decided in 1810, contains a dis­
cussion of the subject which is applicable today. In his 
opinion beginning on page 128 of 6 Cranch, Chief Justice 
Marshall pointed to some of the perplexities which would be 
involved. Mr. Justice Johnson elaborated upon this in his 
opinion beginning on page 143 of 6 Cranch. In that case 
actual fraud coupled with financial gain on the part of legis­
lators was shown but the statutes were recognized as valid. 
It is inconceivable that the judicial branch of the Govern­
ment should undertake to exercise the power to inquire into 
the motives of the legislative branch as a collective body. 
If the individual members are guilty of fraud or other un­
lawful conduct, they are subject to legal sanctions as indi­
viduals and they are answerable to their constituents at the 
polls.

Following the lengthy discussion of what is described as 
the “setting” in which the Acts were passed, the majority 
ignores Fletcher v. Peck, gives a nod of recognition to Ten­
ney v. Brandhove, 341 U. S. 367, 71 S. Ct. 783, 95 L. Ed. 
1019, with an acknowledgment that a court may not inquire 
into the legislative motive and proceeds with an assertion 
that the legislative purpose may be the subject of inquiry, 
giving as authority Baskin v. Brown, 4 Cir., 174 F. 2d 391, 
392, 393, and Davis v. Schnell, D. C., 81 F. Supp. 872, 
878-880, affirmed by per curiam decision in 336 U. S. 933, 
69 S. Ct. 749, 93 L. Ed. 1093, where it was noted that Mr. 
Justice Reed was of opinion that since a constitutional pro­
vision of a state was involved, probable jurisdiction should



App. 71

be noted and the case argued. From the language used by 
the majority, it would appear that purpose or intention have 
been confused with motive. The first case relied upon, 
Davis v. Schnell, was from a three-judge District Court in 
Alabama. It involved the right to vote. The Court recited 
in detail the legislative history of the act. In discussing its 
views in Baskin v. Brown, the Court cited Davis v. Schnell 
and quoted from that opinion concerning the intention and 
purpose of the legislation. As I read both opinions, they 
use the term “purpose” as similar or synonymous with 
“intention”. Neither discusses the motives influencing the 
Legislature and in neither is Fletcher v. Peck nor Tenney 
v. Brandhove mentioned. While they tend to give color to 
the suggestion that motive may be considered, I am unable 
to accept them as authority for such theory. And see Las­
siter v. Taylor, D. C. E. D. N. C. 1957, 152 F. Supp. 295, 
from which may be inferred a position contrary to the Davis 
and Baskin cases. Lane v. Wilson, 307 U. S. 268, 59 S. Ct. 
872, 83 L. Ed. 1281, is the third case upon which the ma­
jority bases its conclusion upon this point. It must be borne 
in mind that Lane v. Wilson was an action for damages 
brought under a statute conferring original jurisdiction in 
such cases upon the Federal Court.

In none of these cases is the question so fully presented 
and discussed as in Fletcher and Tenney, in both of which 
the underlying principle is recognized.

If it be conceded that the Courts may inquire into the 
personal motives of legislators a maze of avenues of possible 
inquiry is seen. Must the motive be corrupt; what proof 
will show corruption—a state of mind or personal gain? 
Would undue influence vitiate the act? Must the improper 
motive exist on the part of a majority ; if not on the part of 
a majority, on what number? If bad motive on the part of 
a majority of the legislature is required, is it necessary that



App. 72

it be a majority of the entire body or of only those who sup­
ported the legislation? What type of proof would be suffi­
cient to show improper motive? Is the burden of proof 
similar to that required in ordinary cases involving fraud? 
Must actual fraud be proven or is constructive fraud suffi­
cient? In recognition of the principle that the acts of a 
sovereign are pure, upon what historic concept can one of 
the three great branches of a republican form of govern­
ment denounce as impure the act of a co-ordinate branch? 
If this can be done, will it be necessary that the third co­
ordinate branch concur in the result? The questions posed 
show the absurdity of the contention urged by the plaintiffs 
and apparently approved by the majority of this Court, that 
the motives of the legislature are a proper subject of inquiry.

Before leaving this subject, I call attention to what seems 
an inconsistency. Having assumed the power to interpret 
the statutes and basing that interpretation, at least in part, 
upon the motives of the Legislature, the majority denounces 
only some of the statutes and leaves the others for construc­
tion by the state court. There naturally arises the question 
of why such motives should taint only a limited number of 
the statutes and not others constituting this alleged unlawful 
scheme.

W h e t h e r  in  t h e  E x er c ise  of I ts D isc r et io n  t h e

Court S h o u ld  A ccept  J u r isd ic t io n  I f  I t  E x ist s

Time after time the Courts have given expression to the 
propriety of recognizing the delicate balance between the 
Courts of the states and the Federal Courts. This is as im­
portant now as it has been in the past.

This principle of judicial interpretation is based upon the 
fundamental concept of separate sovereigns embodied in the 
Constitution of the United States. The Courts have an­



nounced in clear and specific language the rule and the rea­
sons for the rule.

Cases almost without number decided by the Supreme 
Court have recognized and upheld the doctrine now involved 
which may be illustrated by Spector Motor Service, Inc. v. 
McLaughlin, 323 U. S. 101, 65 S. Ct. 152, 153, 89 L. Ed. 
101, decided in 1944. In that case suit was brought in a 
Federal District Court, 47 F. Supp. 671, to enjoin the en­
forcement of a tax imposed by the State of Connecticut and 
a declaratory judgment. The Court proceeded to pass upon 
the constitutional questions presented. The statute had not 
been construed by the Connecticut Court. The following 
language was used by the Supreme Court:

“It was conceded below that if the Connecticut tax 
was construed to cover petitioner it would run afoul the 
Commerce Clause, were this Court to adhere to what 
Judge Learned Hand called ‘an unbroken line of deci­
sions.’ On the basis of what it deemed foreshadowing 
‘trends’, the majority ventured the prophecy that this 
Court would change its course, and accordingly sus­
tained the tax. In view of the far-reaching import of 
such a disposition by the Circuit Court of Appeals we 
brought the case here.”

After referring to questions touching the taxing powers 
of the states and their relation to the Commerce Clause, the 
Court said:

“We would not be called upon to decide any of these 
questions of constitutionality, with their varying de­
grees of difficulty, if, as the District Court held, the 
statute does not at all apply to one, like petitioner, not 
authorized to do intrastate business. Nor do they 
emerge until all other local Connecticut issues are de­

App. 73



App. 74

cided against the petitioner. But even if the statute 
hits aspects of an exclusively interstate business, it is 
for Connecticut to decide from what aspect of inter­
state business she seeks an exaction. It is for her to 
say what is the subject matter which she has sought to 
tax and what is the calculus of the tax she seeks. Every 
one of these questions must be answered before we 
reach the constitutional issues which divided the court 
below.

“Answers to all these questions must precede con­
sideration of the Commerce Clause. To none have we 
an authoritative answer. Nor can we give one. Only 
the Supreme Court of Errors of Connecticut can give 
such an answer. But this tax has not yet been consid­
ered or construed by the Connecticut courts. We have 
no authoritative pronouncements to guide us as to its 
nature and application. That the answers are not obvi­
ous is evidenced by the different conclusions as to the 
scope of the statute reached by the two lower courts. 
The Connecticut Supreme Court may disagree with the 
District Court and agree with the Circuit Court of 
Appeals as to the applicability of the statute. But this 
is an assumption and at best ‘a forecast rather than a 
determination.’ Railroad Commission of Texas v. Pull­
man Co., 312 U. S. 496, 499, 61 S. Ct. 643, 645, 85 L. 
Ed. 971. Equally are we without power to pass defi­
nitely on the other claims urged under Articles I and II. 
of the Connecticut Constitution. If any should pre­
vail, our constitutional issues would either fall or, in 
any event, may be formulated in an authoritative way 
very different from any speculative construction of how 
the Connecticut courts would review this law and its 
application. Watson v. Buck, 313 U. S. 387, 401-402, 
61 S. Ct. 962, 966, 967, 85 L. Ed. 1416.



App. 75

“If there is one doctrine more deeply rooted than 
any other in the process of constitutional adjudication, 
it is that we ought not to pass on questions of consti­
tutionality—here the distribution of the taxing power 
as between the State and the Nation—unless such ad­
judication is unavoidable. And so, as questions of fed­
eral constitutional power have become more and more 
intertwined with preliminary doubts about local law, 
we have insisted that federal courts do not decide 
questions of constitutionality on the basis of prelim­
inary guesses regarding local law. Railroad Commis­
sion of Texas v. Pullman Co., supra; City of Chicago 
v. Fielderest Dairies, 316 U. S. 168, 62 S. Ct. 986, 
86 L. Ed. 1355; In re Central R. Co. of New Jersey, 
3 Cir., 136 F. 2d 633. See also Burford v. Sun Oil Co., 
319 U. S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424; Mere­
dith v. City of Winter Haven, 320 U. S. 228, 235, 
64 S. Ct. 7, 11 [88 L. Ed. 9] ; Green v. Phillips Petro­
leum Co., 8 Cir., 119 F. 2d 466; Findley v. Odland, 
6 Cir., 127 F. 2d 948; United States v. 150.29 Acres 
of Land, 7 Cir., 135 F. 2d 878. Avoidance of such 
guesswork, by holding the litigation in the federal 
courts until definite determinations on local law are 
made by the state courts, merely heeds this time-hon­
ored canon of constitutional adjudication.

“We think this procedure should be followed in this 
case.”

As will be later shown, the foregoing rule has been con­
sistently applied with a negligible number of exceptions.

On this issue of vital importance the majority opinion 
seems based upon a quotation found in a dissenting opinion 
in Bryan v. Austin, D. C. E. D. S. C., 148 F. Supp. 563, 
567, 568. The entire text of that portion of the dissenting



App. 76

opinion so relied upon may be found in the footnote2. The 
italicized portion is that part omitted from the quotation 
incorporated into the majority opinion.

With due deference to the learned author of that opinion, 
my examination of the cases cited does not lead me to the 
same conclusion as that stated, nor have 1 found any other 
pronouncements of the Supreme Court which lead me to 
that conclusion. After an earlier reference to the celebrated 
declaration of Chief Justice Marshall in Cohens v. Virginia, 
6 Wheat. 264, 5 L. Ed. 257, concerning the usurpation of

2 “I recognize, of course, that, in the application of the rule of comity, 
a federal court should stay action pending action by the courts of a 
state, where it is called upon to enjoin the enforcement of a state 
statute which has not been interpreted by the state courts, and where 
the statute is susceptible of an interpretation which would avoid con­
stitutional invalidity. As the federal courts are bound by the interpre­
tation placed by the highest court of a state upon a statute of that 
state, they should not enjoin the enforcement of a statute as violative 
of the Constitution in advance of such an interpretation, if it is reason­
ably possible for the statute to be given an interpretation which will 
render it constitutional. This is all that is held by the Supreme Court 
in such cases as Shipman v. DuPre, 339 U. S. 321, 70 S. Ct. 640, 
94 L. Ed. 877, and A. F. of L. v. Watson, 327 U. S. 582, 596, 598, 
66 S. Ct. 761, 90 L. Ed. 873. The Supreme Court in Alabama Public 
Service Commission v. Southern Railway Co., 341 U. S. 341, 344, 
71 S . Ct. 762, 95 L. Ed. 1002, recognises that proceedings should be 
stayed only where there is involved ‘construction of a state statute so 
ill-defined that a federal court should hold the case pending a definitive 
construction of that statute in the state courts’. In the case of Toomer 
v. Witsell, 334 U. S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460, in which 
the District Court had upheld the constitutionality of a state statute, 
the Supreme Court reversed the decision without staying proceedings 
for action by the state courts. And in Doud v. Hodge, 350 U. S. 485, 
76 S. Ct. 491, 100 L. Ed. 577, the Supreme Court reversed the dis­
missal of a case by a District Court, 127 F. Supp. 853, where the 
dismissal was granted on the ground that a statute alleged to be un­
constitutional had not been passed upon by the courts of the state. 
The rule as to stay of proceedings pending interpretation of a state 
statute by the courts of the state can have no application to a case, 
such as we have here, where the meaning of the statute is perfectly 
clear and where no interpretation which could possibly be placed upon 
it by the Supreme Court of the state could render it constitutional.”



App. 77

jurisdiction, he concedes that in Shipman v. DuPre, 339 
U. S. 321, 70 S. Ct. 640, 94 L. Ed, 877, and A. F. of L. v. 
Watson, 327 U. S. 582, 600, 66 S. Ct. 761, 90 L. Ed. 873, 
the Supreme Court held that the Federal Courts are bound 
by interpretation of the statute by the highest court of the 
state and should not enjoin the enforcement of such statute 
as violative of the Constitution in advance of such inter­
pretation. The following language is then used:

“* * * if it is reasonably possible for the statute to 
be given an interpretation which will render it consti­
tutional. This is all that is held by the Supreme Court 
in such cases as * * *” Shipman and A. F. of L.

The learned author then asserts that “the Supreme Court 
in Alabama Public Service Commission v. Southern Rail­
way Co., 341 U. S. 341, 344, 71 S. Ct. 762, 95 L. Ed. 1002, 
recognizes that proceedings should be stayed only there is 
involved 'construction of a state statute so ill-defined that a 
federal court should hold the case pending a definitive con­
struction of that statute in the state courts.” ’ (Emphasis 
supplied.)

I find nothing in Shipman referring to the susceptibility 
of the statute to different interpretations.

A. F. of L. v. Watson, contains the following language 
in 327 U. S. on page 599, 66 S. Ct. on page 769:

“The doubts concerning the meaning of the Florida 
law indicate that such a procedure is peculiarly appro­
priate here.”

The procedure referred to was an interpretation of the 
Florida constitutional amendment by the state court before 
the Federal Court exercised jurisdiction. The case was re­
versed and remanded, with directions that the bill be re­



App. 78

tained pending determination of the state court proceedings.
I do not read Alabama as supporting the assertion that 

proceedings should be stayed only where an ill-defined 
statute is involved. The only language I find bearing re­
semblance to such a doctrine appears in 341 U. S. on page 
344, 71 S. Ct. on page 765, as follows:

“Federal jurisdiction in this case is grounded upon 
diversity of citizenship as well as the allegation of a 
federal question. Exercise of that jurisdiction does not 
involve construction of a state statute so ill-defined that 
a federal court should hold the case pending a definitive 
construction of that statute in the state courts, e.g., 
Railroad Commission of Texas v. Pullman Co., 1941, 
312 U. S. 496, 61 S. Ct. 643, 85 L. Ed. 971; Shipman 
v. DuPre, 1950, 339 U. S. 321, 70 S. Ct. 640, 94 L. Ed. 
877. We also put to one side those cases in which the 
constitutionality of a state statute itself is drawn into 
question, e.g., Toomer v. Witsell, 1948, 334 U. S. 
385, 68 S. Ct. 1156, 92 L. Ed. 1460.”

In that case suit was brought in a Federal Court to enjoin 
an order of the Alabama Public Service Commission. With­
out prior action by the state court, the Federal Court heard 
the case and rendered judgment. After pointing out that 
state court review was available to the plaintiff , the Supreme 
Court referring to the “scrupulous regard for the rightful 
independence of state governments which should at all times 
actuate the federal courts”, said:

“Considering that Tew public interests have a higher 
claim upon the discretion of a federal chancellor than 
the avoidance of needless friction with state policies,’ 
the usual rule of comity must govern the exercise of 
equitable jurisdiction by the District Court in this case.



App. 79

Whatever rights appellee may have are to be pursued 
through the state courts.”

In reversing the lower Court, the Supreme Court cited 
with approval Great Lakes Dredge & Dock Co. v. Huffman, 
1943, 319 U. S. 293, 297-298, 63 S. Ct. 1070,87 L. Ed. 1407.

The other cases referred to in the dissenting opinion are 
Toomer v. Witsell, supra, and Doud v. Hodge, 350 IJ. S. 
485, 76 S. Ct. 491, 100 L. Ed. 577. Toomer, at best, is 
also negative authority. In that case jurisdiction was exer­
cised with no discussion of the principle here involved. Doud 
merely said that the Supreme Court has never held that a 
District Court is without jurisdiction in such cases, although 
in reversing the District Court, 127 F. Supp. 853, for dis­
missing for lack of jurisdiction the Supreme Court expressly 
declined to prescribe further procedure on remand. It is 
obvious that the Supreme Court intended that the approved 
procedure of obtaining construction by the state court was 
to be followed.

From what has been said all that I can read into the cases 
cited as authority for the affirmative assertion that pro­
ceedings should be stayed until state court action only where 
an ill-defined statute is involved, is at the most of a negative 
character and limited to an insignificant number of cases.

The majority adopts that portion of the dissenting opinion 
in Bryan v. Austin, and proclaims as a policy of judicial 
interpretation that a stay of proceedings in the Federal 
Courts is not required in cases in which the state statutes 
at issue are free of doubt or ambiguity. It is respectfully 
submitted that the pronouncement of such a doctrine is not 
warranted by the authorities cited. It is true that in some 
few cases the Supreme Court has not required such prior 
interpretation but this fact falls far short of establishing 
a rule of procedure under which proceedings in a Federal



App. 80

Court in a case such as this should be stayed only where 
the statute involved is so ill-defined that its constitutionality 
is doubtful until it is construed judicially.

Even should the rule so announced be the correct one, 
it would have no application in this case, as a reasonably 
careful examination of the statutes will disclose the necessity 
for interpretation, as later pointed out.

The rule laid down by the Supreme Court and consistently 
followed is that cited in Spector Motor Service, Inc. v. 
McLaughlin, supra. The majority opinion has cited Spector 
Motor Company and Government and Civic Employees Or­
ganizing Committee, C. I. O. v. Windsor, 347 U. S. 901, 
74 S. Ct. 429, 98 L. Ed. 1061 and 353 U. S. 364, 77 S. Ct. 
838, 1 L.Ed. 2d 894; Shipman v. DuPre, supra ; A. F. of L. 
v. Watson, supra. This Court is bound to follow, distinguish 
or disregard those cases and others to be cited. It has no 
power to reverse.

The language of the majority discloses that my learned 
associates have followed the example of the majority of the 
Court of the Second Circuit in Spector. [Spector Motor 
Service, Inc. v. Walsh, 139 F. 2d 809] To again quote the 
Supreme Court in that case on page 103 of 323 U. S., on 
page 153 of 65 S. C t.:

“On the basis of what it deemed foreshadowing 
‘trends’, the majority ventured the prophecy that this 
Court would change its course, and accordingly sus­
tained the tax. In view of the far-reaching import of 
such a disposition by the Circuit Court of Appeals we 
brought the case here.”

As has been seen, after emphasizing the “deeply rooted” 
doctrine which it termed “this time-honored canon of con­
stitutional adjudication”, the Supreme Court reversed the



App. 81

Circuit Court and remanded the case to await interpretation 
by the state court.

The decisions of the Supreme Court proclaiming and 
repeating this principle called the “doctrine of abstention” 
in Railroad Commission of Texas v. Pullman Company, 
312 U. S. 496, at page 501, 61 S. Ct. 643, at page 645, 85 
L. Ed. 971, are so numerous and contain such apt expres­
sions that determining which should be cited and discussed 
presents a problem. An exhaustive analysis of all would 
result in a repetitious and unduly long discussion.

Railroad Commission of Texas v. Pullman Company, 
supra, appears a good starting point. In that case a three- 
judge District Court, 33 F. Supp. 675, enjoined an order 
of the Texas Rairoad Commission. On appeal the Court 
referred to the fact that the Court consisted of an able and 
experienced judge of the circuit which includes Texas and of 
two capable district judges trained in Texas law. Then the 
Court said:

“Had we or they no choice in the matter but to decide 
what is the law of the state, we should hesitate long 
before rejecting their forecast of Texas law. But no 
matter how seasoned the judgment of the district court 
may be, it cannot escape being a forecast rather than a 
determination. The last word on the meaning of Article 
6445 of the [Vernon’s] Texas Civil Statutes, and there­
fore the last word on the statutory authority of the 
Railroad Commission in this case, belongs neither to us 
nor to the district court but to the supreme court of 
Texas. In this situation a federal court of equity is 
asked to decide an issue my making a tentative answer 
which may be displaced tomorrow by a state adjudi­
cation.”



Could the Court have expressed itself in clearer terms?

Referring to earlier cases the Court continued:
“These cases reflect a doctrine of abstention appropri­

ate to our federal system whereby the federal courts, 
‘exercising a wise discretion', restrain their authority 
because of ‘scrupulous regard for the rightful inde­
pendence of the state governments’ and for the smooth 
working of the federal judiciary (citing cases). This 
use of equitable powers is a contribution of the courts 
in furthering the harmonious relation between state and 
federal authority without the need of rigorous con­
gressional restriction of those powers.”

The District Court was reversed and the case remanded 
with directions to retain the bill pending a determination of 
proceedings in the state court.

What change has come about since 1941 to justify a court 
in disregarding this clearly stated doctrine ?

I find no expression from the Supreme Court changing 
this rule during the intervening years. On the contrary, as 
late as May 1957 the Court delivered its opinion in Govern­
ment and Civic Employees Organizing Committee, C. I. O. 
v. Windsor, 353 U. S. 364, 77 S. Ct. 838, 1 L. Ed. 2d 894. 
The procedural facts of that case are illuminating and sig­
nificant. A labor organization and one of its members filed 
suit against officials of Alabama Alcoholic Beverage Con­
trol Board, of which the individual member was an em­
ployee. Plaintiffs sought an injunction and declaratory 
judgment to restrain the enforcement of a statute of Ala­
bama. A three-judge court was convened. Plaintiffs con­
tended that the statute was susceptible to no possible con­
struction other than that of unconstitutionality and that 
the Federal Court should decline to stay proceedings pending

App. 82



App. 83

action in the state court. Loss of members by the union and 
loss of employment benefits by the members were alleged. 
As here, no state action was pending. Toomer v. Witsell, 
supra, appears to have been the authority relied upon by 
plaintiffs. The Court, after citing and discussing cases 
referred to by me, declined to exercise jurisdiction pending 
an exhaustion of state administrative and judicial remedies. 
116 F. Supp. 354. The Supreme Court affirmed. 347 U. S. 
901, 74 S. Ct. 429, 98 L. Ed. 1061. Thereafter suit was filed 
in an Alabama Court, which declared the statute applicable 
to the complainant, its activities and its members and the 
injunction was denied. On appeal the final decree of that 
Court was affirmed by the Supreme Court of Alabama. 
262 Ala. 285, 78 So. 2d 646. The case was again submitted 
to the District Court. 146 F. Supp. 214. That Court said 
on page 216:

“After a thorough reading and consideration of the 
final decree of the Circuit Court of Montgomery Coun­
ty in Equity and of the opinion of the Supreme Court 
of Alabama heretofore mentioned, it is clear to us that 
the Alabama courts have not construed the Solomon 
Bill in such a manner as to render it unconstitutional, 
and of course, we can not assume that the State court 
will ever so construe said statute.”

Judgment was entered accordingly.

Upon appeal the Supreme Court in a per curiam opinion 
(353 U. S. 364, 77 S. Ct. 838, 839, 1 L. Ed. 2d 894), after 
observing that “none of the constitutional contentions pre­
sented in the action pending in the United States District 
Court were advanced in the state court action”, said:



App. 84

“We do not reach the constitutional issues. In an 
action brought to restrain the enforcement of a state 
statute on constitutional grounds, the federal court 
should retain jurisdiction until a definitive determina­
tion of local law questions is obtained from the local 
courts. One policy served by that practice is that of not 
passing on constitutional questions in situations where 
an authoritative interpretation of state law may avoid 
the constitutional issues. Spector Motor Service v. 
McLaughlin, 323 U. S. 101, 105, 65 S. Ct. 152, 154, 
89 L. Ed. 101. Another policy served by that prac­
tice is the avoidance of the adjudication of abstract, 
hypothetical issues. Federal courts will not pass upon 
constitutional contentions presented in an abstract 
rather than in a concrete form. Rescue Army v. 
Municipal Court, 331 U. S. 549, 575, 584, 67 S. Ct. 
1409, 1423, 1427, 91 L. Ed. 1666. The bare adjudica­
tion by the Alabama Supreme Court that the union is 
subject to this Act does not suffice, since that court was 
not asked to interpret the statute in light of the con­
stitutional objections presented to the District Court. 
If appellants’ freedom-of-expression and equal-protec­
tion arguments had been presented to the state court, 
it might have construed the statute in a different 
manner. Accordingly, the judgment of the District 
Court is vacated, and this cause is remanded to it with 
directions to retain jurisdiction until efforts to obtain 
an appropriate adjudication in the state courts have 
been exhausted.”

It is worth noting that in June 1957 a three-judge United 
States District Court sitting in the Eastern District of 
North Carolina in Lassiter v. Taylor, 152 F. Supp. 295, 
297, had before it a case attacking the constitutionality of a



statute of the state prescribing a literacy test for voters. 
The Court said:

“The only question in the case is whether the Act of 
March 29, 1957 should be declared void and its enforce­
ment against plaintiffs enjoined by the court on the 
ground that it is violative of their rights under the 
Federal Constitution.”

The Court then proceeded on page 298:

“Before we take any action with respect to the Act 
of March 27, (sic) 1957, however, we think that it 
should be interpreted by the Supreme Court of North 
Carolina in the light of the provisions of the State 
Constitution. Government and Civic Employees Or­
ganizing Committee, etc. v. Windsor, [353 U. S. 364] 
77 S. Ct. 838 [1 L. Ed. 2d 894].”

The opinion was per curiam but significantly the dis­
tinguished jurist who wrote the dissenting opinion in Bryan 
v. Austin, supra, and who sat on the Court in Baskin v. 
Brown, was a member of that Court. It should be recalled 
at this point that Government and Civic Employees Organ­
izing Committee, C. I. O. v. Windsor was decided the 
previous month.

Inferentially at least, it would appear that the author of 
the dissenting opinion upon which the majority rests its 
decision has revised his views since that opinion was filed 
and has accepted the views reflected in the earlier cases of 
Doby v. Brown, infra, and Hood v. Board of Trustees, 
infra, and the later cases of Government and Civic Em­
ployees Organizing Committee, C. I. O. v. Windsor, supra, 
and Lassiter v. Taylor, supra. Attention is called to Hudson 
v. American Oil Company, D. C. E. D. Va., 152 F. Supp.

App. 85



App. 86

757, now before the Court of Appeals for the Fourth Cir­
cuit, in which decision has been deferred pending a pro­
nouncement by the Supreme Court of Appeals of Virginia 
of a question involving an easement in connection with which 
the state court has not yet announced the policy of the state. 
The concurring opinion of Mr. Justice Frankfurter in Ala­
bama Public Service Commission v. Southern Ry. Co., supra, 
contains an informative review of the legislative history of 
the statutes opening the inferior Federal Courts to claims 
arising under state statutes founded on rights under the 
Constitution and laws of the United States. Prior to 1875 
such claims were pursued in the state courts exclusively and 
brought to the Supreme Court for review of the Federal 
question. Upon numerous occasions since 1875, Congress 
has placed restrictions around interference with state actions 
by the lower Federal Courts and in 1910 an act was passed 
placing jurisdiction to restrain action of state officials in a 
District Court consisting of three judges, with the right of 
appeal directly to the Supreme Court, Act June 18, 1910, 
§ 17, 36 Stat. 557. Not satisfied with this safeguard, addi­
tional limitations have been placed upon inferior courts 
where the action involves matters affecting state laws. In 
addition to that discussion, attention is called to the action of 
Congress as late as 1948, when it enacted Title 28, Section 
2254, United States Code, spelling out in detail a prohibition 
against Federal action on applications for writs of habeas 
corpus affecting petitioners in custody pursuant to judg­
ment of state courts until remedies available in courts of 
the state have been exhausted.

In 1938, the Supreme Court decided the landmark case 
of Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S. Ct. 817, 82 
L. Ed. 1188, in which it recognized that there had been an 
invasion of rights reserved by the Constitution to the states 
and proceeded to correct the error. The case is not in point



App. 87

here except as casting light on the recognition by the Su­
preme Court of the limited jurisdiction of Federal Courts 
and it emphasizes the “delicate balance” so often mentioned. 
The discussion of Mr. Justice Frankfurter in Alabama Pub­
lic Service Commission v. Southern Ry. Co., supra, is also 
illuminating. As will be seen from that opinion he inter­
preted the majority opinion there as laying down a fixed rule 
that in all such cases action by the state court is a prerequi­
site to interference by the Federal Court. If his interpreta­
tion of Alabama is correct, and it has been followed rather 
consistently, there is no occasion for further congressional 
action upon this point as suggested by the majority of this 
Court. This demonstrates the fallacy of the somewhat dis­
turbing assumption of the majority opinion that unless juris­
diction has been restricted by Congress or the Supreme 
Court, the inferior United States Courts are free to assume 
unlimited jurisdiction.

In Douglas v. City of Jeannette (Pennsylvania), 319 U. 
S. 157, 63 S. Ct. 877, 87 L. Ed. 1324, and a number of simi­
lar cases, a somewhat stricter rule against jurisdiction of the 
Federal Courts appears to have been recognized as applica­
ble to statutes imposing criminal sanctions such as are here 
involved. However, I prefer to rest my conclusions upon 
the broad, general rule announced in the cases before cited 
and discussed without limiting consideration of the question 
to a special type of litigation. The underlying principle is 
the same whether the case involves a civil suit for the 
collection of tax or the enforcement of a statute denounc­
ing specified conduct as a crime. Both involve the police 
power and both involve the delicate balance which prevails 
between sovereign powers.

The cases last cited and quoted from should be sufficient 
to show with certainty the proper course to be followed by 
this Court. However, these cases by no means include all



App. 88

in point and, as earlier indicated, the problem here is to 
limit this discussion to avoid becoming- burdensome with a 
discussion of cumulative authority. Some of the cases in 
which the doctrine is announced with equal emphasis and 
apt language are listed in the footnote.3 An examination 
of these cases discloses that upon numerous occasions the 
lower courts have undertaken to pass upon the constitu­
tional validity of state statutes only to be reversed by the 
Supreme Court without consideration by it of the consti­
tutional question, with directions that the lower court await 
an interpretation of the statutes by the courts of the state 
affected, e. g. Railroad Commission of Texas v. Pullman 
Co.; Great Lakes Dredge & Dock Co. v. Huffman; Alabama 
Public Service Commission v. Southern Ry. Co.; Govern­
ment & Civic Employees Organizing Committee, C. I. O. 
v. Windsor. There are many other cases which might be 
cited and discussed. These cases which have announced the 
law clearly, are not being followed by the majority. They 
have not been distinguished and only a negligible number

3 Matthews v. Rodgers, 1932, 284 U. S. 521, 525-526, 52 S. Ct. 217, 
76 L. Ed. 447; Great Lakes Dredge & Dock Co. v. Huffman, 1943, 
319 U. S. 293, 296-301, 63 S. Ct. 1070, 87 L. Ed. 1407 ; Meredith v. 
City of Winter Haven, 1943, 320 U. S. 228, 232, 64 S. Ct. 7, 88 L. 
Ed. 9; Alabama State Federation of Labor, etc. v. McAdory, 1945, 
325 U. S. 450, 65 S. Ct. 1384, 89 L. Ed. 1725; A. F. of L. v. Watson, 
1946, 327 U. S. 582, 600, 66 S. Ct. 761, 90 L. Ed. 873; Rescue Army 
v. Municipal Court, 1947, 331 U. S. 549, 67 S. Ct. 1409, 91 L. Ed. 
1666; Shipman v. DuPre, 1950, 339 U. S. 321, 70 S. Ct. 640, 94 
L. Ed. 877; Stefanelli v. Minard, 1951, 342 U. S. 117. 120-123, 72 
S. Ct. 118, 96 L. Ed. 138; Albertson v. Millard, 1953, 345 U. S. 242, 
73 S. Ct. 600, 97 L. Ed. 983; Doud v. Hodge, 1956, 350 U. S. 485, 
76 S. Ct. 491, 100 L. Ed. 577; Beasley v. Texas & Pacific R. Co., 
191 U. S. 492, 24 S. Ct. 164, 48 L. Ed. 274; Cavanaugh v. Looney, 
248 U. S. 453, 457, 39 S. Ct. 142, 63 L. Ed. 354; Fenner v. Boykin, 
271 U. S. 240, 46 S. Ct. 492, 70 L. Ed. 927; Gilchrist v. Interborough 
Rapid Transit Co., 279 U. S. 159, 49 S. Ct. 282, 73 L. Ed. 652; 
Hawks v. Hamill, 288 U. S. 52, 61, 53 S. Ct. 240, 77 L. Ed. 610; 
City of Harrisonville, Mo. v. W. S. Dickey Clay Mfg. Co., 289 U. S. 
334, 53 S. Ct. 602, 77 L. Ed. 1208; U. S. ex rel, Greathouse v. Dern,



App. 89

have been cited. The majority have elected to base their 
decision upon authority for which the most that can be said 
is that it is of a negative character and upon a “prophecy of 
foreshadowing ‘trends’.” This method of judicial inter­
pretation based upon prophecy was commented upon and 
rejected by the Supreme Court in Spector.

T h e  C o n str u c tio n  of t h e  S ta tu tes

This brings us to a consideration of the questioned 
statutes.

As far as pertinent here, Chapters 31 and 32 deal with 
the authority of the state in the exercise of the police 
power to pass laws regulating the conduct of corporations 
operating within the state. Regulatory statutes of this 
nature are fully recognized and any number might be called 
to mind. People of State of New York ex rel. Bryant v. 
Zimmerman, 278 U. S. 63, 49 S. Ct. 61, 73 L. Ed. 184, 
appears to be the leading case applicable here. There was 
involved a statute requiring the disclosure of names of 
members of certain organizations. Petitioner was a member
289 U. S. 352, 53 S. Ct. 614, 77 L. Fd. 1250; Glenn v. Field Packing 
Co., 290 U. S. 177, 54 S. Ct. 138, 78 L. Ed. 252 ; Lee v. Bickell, 292 
U. S. 415, 54 S. Ct. 727, 78 L. Ed. 1337; Commonwealth of Penn­
sylvania v. Williams, 294 U. S. 176, 55 S. Ct. 380. 79 L. Ed. 841; 
Spielman Motor Sales Co. v. Dodge, 295 U. S. 89, 55 S. Ct. 678, 
79 L. Fd. 1322; Di Giovanni v. Camden Fire Ins. Ass’n, 296 U. S. 
64, 73, 56 S. Ct. 1, 80 L. Ed. 47; Beal v. Missouri Pac. R. Corp., 312 
U. S. 45, 61 S. Ct. 418, 85 L. Ed. 577; Cityr of Chicago v. Fieldcrest 
Dairies, 316 U. S. 168, 62 S. Ct. 986, 86 L. Ed. 1355; Burford v. Sun 
Oil Co., 319 U. S. 315, 63 S. Ct. 1098, 87 L. Ed. 1424; Eccles v. 
Peoples Bank of Lakewood Village, Cal, 333 U. S. 426, 431, 68 S. Ct. 
641, 92 L. Ed. 784.

Among cases from lower courts peculiarly applicable a re :
Lassiter v. Taylor. D. C., 152 F. Supp. 295, 298; Doby v. Brown, 

4 Cir., 232 F. 2d 504; Hood v. Board of Trustees, 4 Cir., 232 F. 2d 
626.

For further collection of authorities see:
Tribune Review Publishing Co. v. Thomas, D. C., 120 F. Supp. 362, 

372, and discussion in Meredith v. City of Winter Haven, supra.



App. 90

of the Ku Klux Klan, an organization to which the statute 
was applicable. For failing to comply with the provisions of 
the statute petitioner was held in custody by the state author­
ities. Upon denial of a writ of habeas corpus by the state 
court he appealed to the Supreme Court of the United States. 
Justice McRevnolds was of opinion the case should be dis­
missed for lack of jurisdiction without any consideration 
of the merits. The majority of the Court held that the case 
was of such nature that it had jurisdiction, but recognized 
the power of the state to enforce the statute saying that the 
rights of petitioner must yield to the rightful exertion of 
the police power. The petition was denied.

It has been suggested that the statute was sustained be­
cause of the nature of the activities of the Ku Klux Klan. 
It is true that the Court referred to such activities when 
discussing the exception of certain other organizations from 
the operation of the statute but I do not understand the 
language of the Court as holding that this was a decisive 
factor.

Another significant case is Thomas v. Collins, 323 U. S. 
516, 65 S. Ct. 315, 89 L. Ed. 430. That case involved a 
Texas statute, Vernon’s Ann. Civ. St. art. 5154a, which 
required paid labor organizers to register with the Secretary 
of State and obtain an organizer’s card before soliciting 
members within the state. An injunction was issued re­
straining the petitioner from violating the statute. Sub­
sequently he was held guilty of contempt for violating the 
order. Habeas corpus was denied by the Supreme Court of 
Texas. On appeal, the Supreme Court of the United States 
reversed the judgment of conviction. However, in 323 U. S. 
at page 540, 65 S. Ct. at page 327, the Court said:

“We think a requirement that one must register 
before he undertakes to make a public speech to enlist



App. 91

support for a lawful movement is quite incompatible 
with the requirements of the First Amendment.

“Once the speaker goes further, however, and en­
gages in conduct which amounts to more than the right 
of free discussion comprehends, as when he undertakes 
the collection of funds or securing subscriptions, he 
enters a realm where a reasonable registration or identi­
fication requirement may be imposed. In that context 
such solicitation would be quite different from the solici­
tation involved here. It would be free speech plus 
conduct akin to the activities which were present, and 
which it was said the State might regulate in Schneider 
v. State, supra, [308 U. S. 147, 60 S. Ct. 146, 84 L. 
Ed. 155], and Cantwell v. State of Connecticut, supra. 
That however must be done, and the restriction applied, 
in such a manner as not to intrude upon the rights of 
free speech and free assembly. In this case the separa­
tion was not maintained.” (Emphasis supplied.)

See also the concurring opinion of Mr. Justice Jackson. 
Cf. Douglas v. City of Jeannette (Pennsylvania), supra.

In a dissenting opinion, concurred in by Chief Justice 
Stone and Justice Frankfurter, beginning at page 548 of 
323 U. S., at page 331 of 65 S. Ct., Justice Roberts said:

“The right to express thoughts freely and to dissemi­
nate ideas fully is secured by the Constitution as basic 
to the conception of our government. A long series of 
cases has applied these fundamental rights in a great 
variety of circumstances. Not until today, however, 
has it been questioned that there was any clash between 
this right to think one’s thoughts and to express them 
and the right of people to be protected in their dealings 
with those who hold themselves out in some profes-



App. 92

sionar capacity by requiring registration of those who 
profess to pursue such callings.”

While the statutes impose the duty to register and furnish 
information concerning names of persons engaged in the 
solicitation of and contribution to funds for certain pur­
poses, it does not prohibit the solicitation or expenditures of 
funds provided registration is had and the required infor­
mation filed. We are not called upon at this time to deter­
mine whether the statutes are constitutional or unconstitu­
tional. That is for determination after action by the state 
court. Should it be proper to follow the reasoning of the 
majority the Court would be called upon to determine 
whether they are so plainly unconstitutional that by no in­
terpretation could they be held constitutional. I have found 
no case under which it can be said they are so plainly in 
violation of the Constitution that by no interpretation can 
they be held otherwise.

The remaining statutes, Chapters 33, 35 and 36, dealing 
with the practice of law, are based in part upon the canons 
of ethics recognized by the American Bar Association, and 
in part are declaratory of common law offenses.

The statutes are lengthy and the language employed is 
involved. A consideration of key words found with rela­
tion to other general language is necessary to determine the 
meaning.

Chapter 33, as applied to attorneys, revolves around the 
phrase “improper solicitation”. As applied to a “runner” 
or “capper” the act denounced is acting as an agent for an 
attorney, etc.

Chapter 35 denounces as an offense the instigating or 
attempting to instigate a person or persons to institute a 
suit. The statutory definition of “instigating” is somewhat 
ambiguous and will require a judicial interpretation.



A-pp. 93

In Chapter 36 the significant language to be construed 
relates to inducing one to act and the giving of advice by 
one whose professional advice has not been sought in ac­
cordance with the canons of legal ethics.

It clearly appears that the language employed must be 
construed as applied to the facts involved. Upon such 
construction will depend the decision of whether the statutes 
apply to the activities of the plaintiffs and the members of 
the bar employed by them.

It is difficult to understand how the majority reached its 
conclusion that Chapters 31, 32 and 35 are clearly in vio­
lation of the Constitution but Chapters 33 and 36 will 
require an interpretation. If this Court determines that it 
should hold Chapters 31, 32 and 35 invalid, why should it 
not declare Chapters 33 and 36 valid instead of referring 
them to the state court for interpretation? Further, they 
say clause (3). Section 2, chapter 32 is unconstitutional 
because “vague and indefinite” but chapters 33 and 36, 
being “vague and. ambiguous” must be interpreted by the 
state court before their constitutionality can be determined.

At the hearing certain officers of the plaintiff corporations 
testified. Upon that testimony the majority has incorpo­
rated in its opinion a statement of the activities of the cor­
porations with relation to the institution of litigation to 
which they are not parties. Assuming that statement to be 
correct it is questionable that Chapters 33, 35 or 36 would 
be applicable to those engaged in such activities. I express 
no opinion upon this beyond observing that obviously a 
question would be involved. Certain it is that in reaching 
an answer to that question it will be necessary that the mean­
ing of the statutes be construed.

Plaintiffs complain that the statutes are directed at them. 
Whether this be true or not is immaterial. The evidence 
shows there are other organizations engaged in counter



App. 94

activities in Virginia. However, this fact merits only pass­
ing reference. As pointed out in People of State of New 
York ex rel. Bryant v. Zimmerman, supra, the constitutional 
validity of a statute is not affected by the failure of the 
Legislature to pass laws covering all cases it might reach or 
covering the whole field of possible abuse.

I expressly refrain from expressing an opinion con­
cerning the constitutional validity of the statutes. As applied 
by the Courts they might be held valid, they might be found 
invalid or they might be held valid in part and invalid in 
part. The point here is that they should be construed by the 
Courts of the State in which their enforcement will take 
place. Then and only then can the Federal Courts properly 
inquire as to their invasion of rights guaranteed by the Con­
stitution of the United States. To do otherwise would be 
both to dismiss the obviously questionable language used 
in places in the statutes and to disregard firmly established 
principles of construction long accepted by the Federal 
Courts as applicable in like situations. In this case the Court 
should observe the ‘‘Doctrine of Abstention” referred to by 
the District Court in Government and Civic Employees 
Organizing Committee, C. I. O. v. Windsor, 116 F. Supp. 
354, at page 358. To do otherwise is to disregard estab­
lished principles and to undertake to chart a new course of 
judicial construction with the hope of successfully prophe­
sying “foreshadowing trends” of judicial action. Failure of 
the lower court to respect the doctrine of stare decisis leads 
to confusion. Failure to do so in this case disturbs the bal­
ance between state and Federal jurisdiction.

Co n c l u sio n s  :

1. (a) The Federal Court has jurisdiction under the 
Diversity Statute.



App. 95

(b) The plaintiffs being corporations are not entitled to 
the privileges and immunities of natural persons secured by 
the Fourteenth Amendment.

2. This Court may not inquire into the motives of the 
members of the General Assembly actuating them in pass­
ing the statutes but may consider legislative history when 
determining the meaning of statutes being construed.

3. While it is my view that the suits are premature, the 
fact that jurisdiction exists under the Diversity Statute 
coupled with the language of the Supreme Court in Doud v. 
Hodge, and some of the other cases considered, the proper- 
course is to retain the case on the docket of this Court and 
continue them generally until the Acts have been given a 
definitive construction by the Courts of Virginia before the 
Federal Court undertakes to test their validity measured 
by the Federal Constitution.

APPENDIX II
Acts of the General Assembly of Virginia

(Extra Session 1956)
C h a p t e r  31

Be it enacted by the General Assembly of Virginia:
1. §1. As used in this act the term “person” shall mean
any individual, partnership, corporation or association, 
whether formally or informally organized. “Party” shall 
include an amicus curiae.

§2. No person shall engage in the solicitation of funds 
from the public or any segment thereof when such funds



App. 96

will be used in whole or in part to commence or to prosecute 
further any original proceeding, unless such person is a 
party or unless he has a pecuniary right or liability therein, 
nor shall any person expend funds from whatever source 
received to commence or to prosecute further any original 
proceeding, unless such person is a party or has a pecuniary 
right or liability therein, until any person shall first:

(1) If a partnership, corporation or association, file an­
nually, in the month of January or within sixty days after 
the engaging in of any activity subject to this act, with the 
clerk of the State Corporation Commission (a) a certified 
copy of the charter, articles of agreement or association, 
by-laws or other documents, creating, governing or regu­
lating the operations of such partnership, corporation or 
association if not of record in the office of the State Cor­
poration Commission; (b) a certified list of the names and 
addresses of the officers, directors, stockholders, members, 
agents and employees or other persons acting for or in be­
half of such partnership, corporation or association; (c) 
a certified statement showing the source of each and every 
contribution, membership fee, dues payment or other item 
of income or other revenue of such partnership, corporation 
or association during the preceding calendar year and if 
required by the State Corporation Commission the name 
and address of each and every person or corporation or 
association making any donation or contribution; (d) a 
certified statement showing in detail by each transaction the 
expenditures of such partnership, corporation or association 
during the preceding calendar year, the objects for which 
made and any other information relative thereto required by 
the State Corporation Commission; and (e) a certified state­
ment showing the locations of each office or branch of such 
partnership, corporation or association, and the counties



App. 97

and cities in which it proposes to or does finance or main­
tain litigation to which it is not a party.

(2) If an individual, file annually with the clerk of the 
State Corporation Commission (a) the home and each 
business address of such individual; (b) the name and ad­
dress of any partnership, corporation or association for 
whom such individual acts or purports to act ; (c) the names 
and addresses of all directors and officers of any such part­
nership, corporation or association; (d) a certified state­
ment showing the source of each and every contribution, 
dues payment or membership fee collected by such individ­
ual during the preceding calendar year; and (e) a certified 
statement showing in detail by each transaction the ex­
penditures made by such individual for the purpose of 
financing or maintaining litigation to which such individual 
is not a party.

§3. If any individual shall violate any provisions of this 
act he shall be guilty of a misdeameanor and may be pun­
ished as provided by law. If any partnership, corporation 
or association violates any provision of this act it may be 
fined not more than ten thousand dollars, and if a foreign 
corporation or association shall be denied admission to do 
business in Virginia, if not admitted, and if admitted, shall 
have its authority to do business in Virginia revoked.

§ 4. Any individual, acting for himself or as an agent or 
employee of any partnership, corporation or association, 
who shall file any statement, certificate or report required 
by this act, knowing the same to be false or fraudulent, shall 
be guilty of a felony and punished as provided in §§ 18-238 
and 18-239 of the Code.

§5. Any individual acting as an agent or employee of 
any partnership, corporation or association in any activity



App. 98

in violation of this act shall be guilty of a misdemeanor and 
may be punished as provided by law.

§6. Any court of record having civil jurisdiction shall 
have power to enjoin violations of this act. A violation shall 
be deemed to have occurred in any county or city in which 
any partnership, corporation or association expends funds 
to commence, prosecute or further any judicial proceeding 
to which it is not a party or in which it has no pecuniary 
right or liability, or in which county or city it solicits, 
accepts or receives any money or thing of value to be used 
for such purpose, without having filed the information re­
quired in § 2, and the court or judge hearing the application 
shall have power to enjoin the violator from any violation 
of this act anywhere in this State.

§ 7. In any case in which a citizen files a statement with 
the Attorney General, alleging on information and belief 
that a violation of this act has occurred and the particulars 
thereof are set forth, the Attorney General, after investiga­
tion and a finding that the complaint is well founded, shall 
institute proceedings in the Circuit Court of the city of 
Richmond for an injunction to restrain the violation com­
plained of, and such court is hereby vested with jurisdiction 
to grant the same.

§ 8. If a fine is imposed on any partnership, corporation 
or association for violation of the provisions of this act, 
each director and officer of such corporation or association, 
each member of the partnership, and those persons respon­
sible for the management or control of the affairs of such 
partnership, corporation or association may be held jointly 
and severally personally liable for payment of such fine.
2. An emergency exists and this act is in force from its 
passage.



App. 99

C h a pt e r  32
Be it enacted by the General Assembly of Virginia:

1. § 1. The continued harmonious relations between the 
races are hereby declared essential to the welfare, health 
and safety of the people of Virginia. It is contrary to the 
public policy of the State to permit those conditions to arise 
between the races which impede the peaceful co-existence of 
all peoples in the State and it is the duty of the government 
of the State to exercise all available means and every power 
at its command to prevent the same so as to protect its 
citizens from any dangers, perils and violence which would 
result from interracial tension and unrest and possible vio­
lations of Article 2 of Chapter 4 of Title 18 of the Code 
of Virginia. It is therefore further declared that it is vital 
to the public interest that information to the extent and in 
the manner hereinafter provided be obtained with respect 
to persons, firms, partnerships, corporations and associ­
ations whose activities are causing or may cause interracial 
tension and unrest.

§ 2. Every person, firm, partnership, corporation or asso­
ciation, whether by or through its agents, servants, em­
ployees, officers, or voluntary workers or associates, who or 
which engages as one of its principal functions or activities 
in the promoting or opposing in any manner the passage of 
legislation by the General Assembly in behalf of any race 
or color, or who or which has as one of its principal func­
tions or activities the advocating of racial integration or 
segregation or whose activities cause or tend to cause racial 
conflicts or violence, or who or which is engaged or engages 
in raising or expending funds for the employment of counsel 
or payment of costs in connection with litigation in behalf 
of any race or color in this State, shall, within sixty days



App. 100

after the effective date of this act and annually within sixty 
days following the first of each year thereafter, cause his 
or its name to be registered with the clerk of the State 
Corporation Commission, as hereinafter provided; provided 
that in the case of any person, firm, partnership, corpora­
tion, association or organization, whose activities have not 
been of such nature as to require it to register under this 
act, such person, firm, partnership, corporation, association 
or organization, within sixty days following the date on 
which he or it engages in any activity making registration 
under this act applicable, shall cause his or its name to be 
registered with the clerk of the State Corporation Commis­
sion, as hereinafter provided; and provided, further, that 
nothing herein shall apply to the right of the people peace­
ably to assemble and to petition the government for a re­
dress of grievances, or to an individual freely speaking or 
publishing on his own behalf in the expression of his opinion 
and engaging in no other activity subject to the provisions 
hereof and not acting in concert with other persons.

§3. At the time of such registration, the following in­
formation as to the preceding twelve month period shall be 
furnished under oath and filed in such clerk’s office:

If the registrant is an individual, firm or partnership, 
the home and each business address of such individual or 
member of the firm or partnership, the source or sources of 
any funds received or expended for the purposes set forth 
in §2 of this act, including the name and address of each 
person, firm, partnership, association or corporation mak­
ing any contribution, donation or gift for such purposes; 
and an itemized statement of expenditures for such pur­
poses in detail.

If the registrant is a firm, partnership, corporation, asso­
ciation or organization, the business addresses of the prin­



App. 101

cipal and all branch offices of the registrant; the purpose or 
purposes for which such firm, partnership, corporation, as­
sociation or organization was formed; if not already filed, 
a certified copy of the charter, articles of agreement or 
association, by-laws or other documents governing or reg­
ulating the operations of such firm, partnership, corpora­
tion or association; the names of the principal officers, the 
names and addresses of its agents, servants, employees, 
officers or voluntary workers or associates by or through 
which it carries on or intends to carry on the activities de­
scribed in §2 of this act in this State; a list of its stock­
holders or members in this State and their addresses; a 
financial statement showing the assets and liabilities of the 
registrant and the source or sources of its income, itemizing 
in detail any contributions, donations, gifts or other income, 
and from what source or sources received during the calen­
dar year preceding such initial registration and each year 
thereafter; and a list of its expenditures in detail for the 
same period.

§ 4. The clerk of the State Corporation Commission shall 
prepare and keep in his office the files containing the infor­
mation required by §§ 2 and 3. Such records shall be public 
records and shall be open to the inspection of any citizen at 
any time during the regular business hours of such office.

§5. (a) Any person, firm or partnership who or which 
engages in the activities described in § 2 of this act without 
first causing his or its name to be registered and informa­
tion to be filed as herein required shall be guilty of a mis­
demeanor and punished accordingly.

(b) Any corporation, association or organization which 
shall engage in any activity described in § 2 of this act with­
out first causing its name to be registered and information



App. 102

to be filed as herein required shall upon conviction be fined 
not exceeding ten thousand dollars.

(c) Any person, acting for himself or as agent or em­
ployee of any firm, partnership, corporation or association, 
who shall file any statement, certificate or report required 
by this act, knowing the same to be false or fraudulent, shall 
be guilty of a felony and punished as provided in §§ 18-238 
and 18-239 of the Code.

(d) When any corporation or association, upon convic­
tion of violation of the provisions of this act, has been sen­
tenced to payment of a fine, and has failed to promptly pay 
the same, both the corporation or association and each officer 
and director and those persons responsible for the manage­
ment or control of the affairs of such corporation or asso­
ciation may be held liable jointly and severally for such fine.

(e) Each day’s failure to register and file the informa­
tion required by §2 shall constitute a separate offense and 
be punished as such.

§6. Any person, firm, partnership, corporation or asso­
ciation engaging in any activity described in §2 of this act 
without complying with this act may be enjoined from con­
tinuing in any such activity by any court of competent 
jurisdiction.

§ 7. In any case in which a citizen files a statement with 
the Attorney General alleging on information and belief 
that a violation of this act has occurred and the particulars 
thereof are set forth, the Attorney General after investi­
gation and a finding that the complaint is well founded shall 
institute proceedings in the Circuit Court of the City of 
Richmond for an injunction to restrain the violation com­
plained of, and such court is hereby vested with jurisdiction 
to grant the same.



App. 103

§8, If any one or more sections, clauses, sentences or 
parts of this act shall be adjudged invalid, such judgment 
shall not affect, impair or invalidate the remaining provi­
sions thereof, but shall be confined in its operation to the 
specific provisions held invalid, and the inapplicability or 
invalidity of any section, clause or provision of this act in 
one or more instances or circumstances shall not be taken 
to affect or prejudice in any way its applicability or validity 
in any other instance.

§9. This act shall not apply to persons, firms, partner­
ships, corporations or associations who or which carry on 
such activity or business solely through the medium of 
newspapers, periodicals, magazines or other like means 
which are or may be admitted under United States postal 
regulations as second-class mail matter in the United States 
mails as defined in Title 39, §224, United States Code An­
notated, and/or through radio, television or facsimile broad­
cast or wire service operations. This act shall also not apply 
to any person, firm, partnership, corporation, association, 
organization or candidate in any political election campaign, 
or to any committee, association, organization or group of 
persons acting together because of activities connected with 
any political campaign.

C h a pt e r  35

Be it enacted by the General Assembly of Virginia:
1. §1. Definitions.

(a) “Barratry” is the offense of stirring up litigation.
(b) A “barrator” is an individual, partnership, associ­

ation or corporation who or which stirs up litigation.



App. 104

(c) “Stirring up litigation” means instigating or at­
tempting to instigate a person or persons to institute a suit 
at law or equity.

(d) “Instigating” means bringing it about that all or 
part of the expenses of the litigation are paid by the bar­
rator or by a person or persons (other than the plaintiffs) 
acting in concert with the barrator, unless the instigation is 
justified.

(e) “Justified” means that the instigator is related by 
blood or marriage to the plaintiff whom he instigates, or 
that the instigator is entitled by law to share with the plain­
tiff in money or property that is the subject of the litigation 
or that the instigator has a direct interest in the subject 
matter of the litigation or occupies a position of trust in 
relation to the plaintiff; or that the instigator is acting on 
behalf of a duly constituted legal aid society approved by 
the Virginia State Bar which offers advice or assistance in 
all kinds of legal matters to all members of the public who 
come to it for advice or assistance and are unable because 
of poverty to pay legal fees.

( f ) “Direct interest” means a personal right or a pecuni­
ary right or liability.

This act shall not be applicable to attorneys who are 
parties to contingent fee contracts with their clients where 
the attorney does not protect the client from payment of the 
costs and expenses of litigation, nor shall this act apply to 
any matter involving annexation, zoning, bond issues, or 
the holding or results of any election or referendum, nor 
shall this act apply to suits pertaining to or affecting pos­
session of or title to real or personal property, regardless 
of ownership, nor shall this act apply to suits involving the 
legality of assessment or collection of taxes or the rates



App. 105

thereof, nor shall this act apply to suits involving rates or 
charges or services by common carriers or public utilities, 
nor shall this act apply to criminal prosecutions, nor to the 
payment of attorneys by legal aid societies approved by the 
Virginia State Bar, nor to proceedings to abate nuisances. 
Nothing herein shall be construed to be in derogation of the 
constitutional rights of real parties in interest to employ 
counsel or to prosecute any available legal remedy under the 
laws of this State.

§ 2. It shall be unlawful to engage in barratry.
§ 3. A person found guilty of barratry, if an individual, 

shall be guilty of a misdemeanor, and may be punished as 
provided by law; and if a corporation, may be fined not 
more than ten thousand dollars. If the corporation be a 
foreign corporation, its certificate of authority to transact 
business in Virginia shall be revoked by the State Corpora­
tion Commission.

§4. A person who aids and abets a barrator by giving 
money or rendering services to or for the use or benefit of 
the barrator for committing barratry shall be guilty of 
barratry and punished as provided in §3.

§5. Courts of record having equity jurisdiction shall 
have jurisdiction to enjoin barratry. Suits for an injunction 
may be brought by the Attorney General or the attorney for 
the Commonwealth.

§ 6. Conduct that is made illegal by this act on the part 
of an attorney at law or any person holding a license from 
the State to engage in a profession is unprofessional con­
duct. Upon hearing pursuant to the provisions of § 54-74 
of the Code, or other statute applicable to the profession 
concerned, if the defendant be found guilty of barratry, his



App. 106

license to practice law or any other profession shall be re­
voked for such period as provided by law.
2. An emergency exists and this act is in force from its 
passage.

APPENDIX III 
Judgment of the Court Below

These actions came on to be heard upon the complaints 
for relief against the enforcement or execution of Chap­
ters 31, 32, 33, 35 and 36 of the Acts of the General Assem­
bly of Virginia, Extra Session, 1956, the motions to dismiss 
the complaints, the answers filed, the evidence adduced by 
the parties and the arguments of counsel.

Upon consideration thereof the Court, having found the 
facts and reached the conclusions of law stated in its written 
opinion, has concluded that injunctions should be granted 
restraining the defendants from enforcing or executing 
Chapters 31, 32 and 35, and further, that the complaints 
as to Chapters 33 and 36 do not present causes which this 
Court should dispose of on their merits at this time.

It is therefore Adjudged, Ordered and Decreed:
1. That the defendants, and each of them, their succes­

sors in office and their agents be, and they hereby are, re­
strained from proceeding against the plaintiffs, their affili­
ates, officers, members, contributors or attorneys under 
Chapters 31, 32 or 35 because of their activities in the past 
on behalf of the colored people in Virginia as disclosed by 
the evidence in these cases, or because of the continuance of 
like activities in the future;

2. That the complaints as to Chapters 33 and 36 be, and



App. 107

they hereby are, retained on the docket of this Court for a 
reasonable time pending the determination of such proceed­
ings in the state courts as the plaintiffs may see fit to bring 
to secure an interpretation of these two statutes;

3. That the plaintiffs may petition this Court for further 
relief if at any time they deem it their best interest so to do; 
and

4. That the plaintiffs recover their costs in these actions 
from the defendants.

(s) Morris A. Soper 
United States Circuit Judge

(s) Walter E. Hoffman 
United States District Judge

For reasons set forth in separate dissenting opinion filed 
by me on January 21, 1958, I record my disapproval of the 
foregoing order.

(s) Sterling Hutcheson 
United States District Judge

APPENDIX IV 
The Alabama Statute

Be It Enacted by the Legislature of Alabama:
Section 1. As used in this act the term “labor union or 

labor organization” means any organization of any kind, in 
which employees participate for the purpose of dealing with 
one or more employers concerning grievances, labor disputes, 
wages, rates of pay, hours of employment, or conditions of



App. 108

work; and the term “public employee” means any person 
whose compensation is derived in whole or in part from the 
State, or any agency, board, bureau, commission or insti­
tution thereof.

Section 2. Any public employee who joins or participates 
in a labor union or labor organization, or who remains a 
member of, or continues to participate in, a labor union or 
labor organization thirty days after the effective date of this 
act, shall forfeiture all rights afforded him under the State 
Merit System, employment rights, re-employment rights, 
and other rights, benefits, or privileges which he enjoys as 
a result of his public employment.

Section 3. This act shall not apply to persons employed 
as teachers by any county or city board of education or 
trade schools or institutions of higher learning, nor shall it 
apply to those employees of the State Docks Board referred 
to in Title 38, Section 17, of the Code of Alabama, 1940, 
nor shall it apply to employees of cities or counties.

Section 4. Any public employee who prior to the passage 
of this act or to his public employment belonged to a labor 
union or labor organization and as a result thereof has 
acquired insurance benefits or any other financial benefits 
may continue to participate in such labor union or labor or­
ganization to the extent that he shall not lose any benefits 
thus acquired.

Section 5. The provisions of this act are severable. If 
any part of the act is declared invalid or unconstitutional, 
such declaration shall not affect the part which remains.

Section 6. All laws or parts of laws which conflict with 
this act are repealed.

Section 7. This act shall become effective immediately



App. 109

upon its passage and approval by the Governor, or upon its 
otherwise becoming a law.

APPENDIX V
The North Carolina Statute

The Act of March 29, 1957, is as follows:
Sec. 1. Every person presenting himself for registration 

shall be able to read and write any section of the Constitu­
tion of North Carolina in the English language. It shall be 
the duty of each registrar to administer the provisions of 
this section.

Sec. 2. Any person who is denied registration for any 
reason may appeal the decision of the registrar to the county 
board of elections of the county in which the precinct is 
located. Notice of appeal shall be filed with the registrar 
who denied registration, on the day of denial or by 5 :00 
p. m. on the day following the day of denial. The notice of 
appeal shall be in writing, signed by the appealing party, 
and shall set forth the name, age and address of the appeal­
ing party, and shall state the reasons for appeal.

Sec. 3. Every registrar receiving a notice of appeal shall 
promptly file such notice with the county board of elections, 
and every person appealing to the county board of elections 
shall be entitled to a prompt and fair hearing on the question 
of such persons’ right and qualifications to register as a 
voter. A majority of the members of the board shall be the 
decision of the board. All cases on appeal to a county board 
of elections shall be heard de novo, and the board is author­
ized to subpoena witnesses and to compel their attendance 
and testimony under oath, and is further authorized to sub­



App. 110

poena papers and documents relevant to any matter pending 
before the board. If at the hearing the board shall find that 
the person appealing from the decision of the registrar is 
able to read and write any section of the Constitution of 
North Carolina in the English language and if the board 
further finds that such person meets all other requirements 
of law for registration as a voter in the precinct to which 
application was made, the board shall .enter an order direct­
ing that such person be registered as a voter in the precinct 
from which the appeal was taken. The county board of 
elections shall not be authorized to order registration in any 
precinct other than the one from which an appeal has been 
taken. Each appealing party shall be notified of the board’s 
decision in his case not later than ten (10) days after the 
hearing before the board.

Sec. 4. Any person aggrieved by a final order of a 
county board of elections may at any time within ten (10) 
days from the date of such order appeal therefrom to the 
Superior Court of the county in which the board is located. 
Upon such appeal, the appealing party shall be the plaintiff 
and the county board of elections shall be the defendant, and 
the matter shall be heard de novo in the superior court in 
the same manner as other civil actions are tried and disposed 
of therein. If the decision of the court be that the order of 
the county board of elections shall be set aside, then the court 
shall enter its order so providing and adjudging that such 
person is entitled to be registered as a qualified voter in the 
precinct to which application was originally made, and in 
such case the name of such person shall be entered on the 
registration books of that precinct. The court shall not be 
authorized to order the registration of any person in a pre­
cinct to which application was not made prior to the proceed­
ing in court. From the judgment of the superior court an



App. I l l

appeal may be taken to the Supreme Court in the same 
manner as other appeals are taken from judgments of such 
court in civil actions.

Sec. 5. All laws and clauses of laws in conflict with this 
Act are hereby repealed.

Sec. 6. This Act shall be effective upon its ratification.



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