NAACP Legal Defense and Educational Fund, Inc. v. Harrison Petition for Rehearing

    IN THE

Supreme Court of Appeals of Virginia
Record No. 5097

N.A.A.C.P. L egal, D e f e n s e  a n d  E d u c a t io n a l  F u n d , Tn c .,
Petitioner,

v.
A . S . H a r r is o n , J r ., A t t o r n e y  G e n e r a l  of V ir g in ia , et  a l .,

Respondents.

PETITION FOR REHEARING

S po t t sw o o d  W. R o b in s o n , III,
214 East Clay Street, Room 208, 
Richmond 19, Virginia.

T h u rg o o d  M a r s h a l l ,
10 Columbus Circle, Suite 1790, 
New York 19, New York.

Counsel for Petitioner.

P ress of B yron S . A d a m s . W ashington . D . C.



SUBJECT INDEX
Page

Statement ............................................................................ 1
Argument ............................................................................ 3

I. The Ruling That Chapter 33 Applies To Peti­
tioner’s Activities Is Not Supported By The 
Record And Conflicts With The Applicable De­
cisional L a w ............................................................  3

II. The Constitutional Validity Of Chapter 33 Was 
Not An Issue Before The Court On This Appeal 9

Conclusion ..........................................................................  10
Certificate ............................................................................ 11

TABLE OF CITATIONS 
C ases

Ackerman v. State, 124 Tex. Cr. Rep. 125, 61 S.W. 2d
116 (1933) ....................................................................

Ariola, In re, 252 App. Div. 61, 297 N. Y. S. 100 (1937) 
Bayles, Ex parte, 42 Okla. Cr. Rep. 28, 274 P. 485 (1929)
Brown, Re, 389 111. 516, 59 N.E. 2d 855 (1945)..............
Buder, In re, 358 Mo. 796, 217 S.W. 2d 563 (1949) . . . .  
Chicago Bar Asso., People ex rel., v. Bamborough, 255

111. 92, 99 N.E. 368 (1912) .......................................
Clark, Re, 161 App. Div. 630, 146 N. Y. S. 1030 (1914) 
Colorado Bar Asso., People ex rel., v. Betts, 26 Colo.

521, 58 P. 1091 (1899) ...............................................
Crafts v. Lizotte, 34 R. I. 543, 84 A. 1081 (1912 )..........
Gillespie v. People, 188 111. 176, 58 N. E. 1007 (1900) .. 
Gordon v. Coolidge, 10 Fed. Cas. Co. 5,606 (C. C. D.

Me.) ..............................................................................
Government Employees v. Windsor, 353 U. S. 364 ___ 2,
Harris, Re, [1897] 3 Terr. L. R. (Can.) 7 0 ....................
Harrison v. National Association for the Advancement

of Colored People, 360 U. S. 1 6 7 .............................  4
Helfant, Re, 228 App. Div. 479, 240 N. Y. S. 242 (1930) 6

O
) 

(0
 0

5 
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1 
05

 
CT

5C
5 

05
 O

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<l

 —
3 

GO



ii Index Continued

Page
Huff, In re, 371 111. 98, 20 N.E. 2d 101 (1939 ).............. 6
Kelley v. Boyne, 239 Mich. 204, 214 N. W. 316 (1927).. 8
Klingensmith v. Kepler, 41 Ind. 341 (1872), 50 Ind. 432

(1875) .........................................................................  6
Laird v. State, 156 Tex. Cr. Rep. 345, 242 S.W. 2d 374

(App. 1951) ................................................................  8
Lawton v. Steele, 119 N. Y. 226, 23 N. E. 878 (1890) . . .  7
Luce, Re, 83 Cal. 303, 23 P. 350 (1890) .........................  6
McCaughey, Re, [1883] 3 Ont. Rep. 425 .......................  6
McCloskey, Ex parte, 82 Tex. Cr. Rep. 531, 199 S. W.

1101 (1918), affirmed McCloskey v. Tobin, 252 U. S.
107 (1920) ..................................................................  8

McCloskey v. Tobin, 252 U. S. 107 (1920 ).....................
Maloney, Re, 35 N. D. 1, 153 N. W. 385 (1915 ).............. 6
Marrell, In re, 1 App. Div. 2d 328, 119 N. Y. S. 2d 772

(1956) .......................................................................... 8
Morris, People ex rel., v. Moutray, 166 111. 630, 47 N. E.

79 (1897) ....................................................................  6
Moses, People ex rel., v. Adams, 172 Misc. 143, 14

N. Y. S. 780 (1939) ....................................................  8
Mugler v. Kansas, 123 U. S. 623 (1887) .......................  7
N.A.A.C.P. Legal Defense and Educational Fund, Inc. 

v. Patty, Civ. No. 2436, reported sub nom National 
Association for the Advancement of Colored Peo­
ple v. Patty, 159 F. Supp. 503, vacated Harrison v. 
National Association for the Advancement of Col­
ored People, 360 U. S. 1 6 7 .......................................  2

Parkins v. State, 116 Tex. Cr. Rep. 52, 28 S.W. 2d 137
(1930) ..........................................................................  8

People ex rel. Chicago Bar Asso. v. Bamborough, 255
111. 92, 99 N.E. 368 (1912) .......................................  6

People ex rel. Colorado Bar Asso. v. Betts, 26 Colo.
521, 58 P. 1091 (1899) ............................................... 6

People ex rel. Morris v. Moutrav, 166 111. 630, 47 N. E.
79 (1897) ....................................................................  6

People ex rel. Moses v. Adams, 172 Misc. 143,14 N. Y. S.
2d 780 (1939) ..............................................................  8

People v. Galerson, 276 N. Y. 656, 13 N.E. 2d 47 (1938) 8
People v. Gottleib, 8 Cal. App. 2d 763, 50 P. 2d 509 

(1935) 8
People v. Levine,161 i\iisc. 336, 291 N. Y.' S. 1001 (1936) 8
People v. Levy, 8 Cal. App. 2d 763, 50 P. 2d 509 (1935) 8



Page
People v. Meola, 193 App. Div. 487, 184 N. Y. S. 353

(1920) .......................................................................... 8
People v. Winter, 288 N. Y. 418, 43 N.E. 2d 470 (1942) 7, 8 
Port Huron v. Jenkinson, 77 Mich. 414, 43 N. W. 923

(1889) .......................................................................... 7
Porter v. Vance, 14 Lea. 629 (Tenn. 1885).................... 6
Priddy v. McKenzie, 205 Mo. 181, 103 S. W. 968 (1907) 6
Rockmore, Re, 130 App. Div. 586, 117 N. Y. S. 512

(1909) .......................................................................... 6
Rosenberg, In re, 413 111. 567, 110 N.E. 2d 186 (1953).. 6
Ross, Re, [1897] 16 Ont. Rep. 482 .................................  6
Speetor Motor Service v. Walsh, 135 Conn. 37, 61 A. 2d

89 (1948) .................................................................... 9
State v. Breslin, 67 Okla. 125, 369 P. 897 (1917 ).......... 6
State v. Schultz, 242 Iowa 1328, 50 N.W. 2d 9 (1951) .. 7
State v. Strasburg, 60 Wash. 128,110 P. 1027 (1910) .. 7
United States v. Burdett, 9 Pet. 682 U.S. 1835 ............ 7
United States v. Dotterweich, 320 U. S. 277 (1943) . . .  7
Warner v. Griswold, 8 Wend. 665 (N. Y. 1832)............ 6
Worthan v. State, 189 Ala. 395, 66 So. 686 (1914 )___  8
Yale v. State Bar, 16 Cal. 2d 175, 105 P. 2d 112 (1940) 6

S t a t u t e s

Virginia Acts of the General Assembly, Extra Session 
1956:

Chapter 33 .................................................1, 2, 3, 5, 8, 9
Chapter 36 ..............................................................  9

Virginia Code (1950):
Sec. 54-74 ................................................................  1,5
Sec. 54-78 ................................................................  1
Sec. 54-79 ................................................................  1

O t h e r  A u t h o r it ie s

Annotated Cases, 1917B, 16-17.......................................  6
Canfield, Corporate Responsibility for Crime, 14 Col.

L. Rev. 469 (1914) ..................................................... 7
Francis, Criminal Responsibility for the Corporation,

18 111. L. Rev. 305 (1924) .........................................  7

Index Continued iii



IV Index Continued

Page
Gausewitz, Criminal Law—Re Classification of Certain 

Offenses as Civil Instead of Criminal, 12 Wis. L.
Rev. 365 (1937) ........................................................  7

Hall, Principles of Criminal Law 279-322 (1947 )........  7
Laylin and Tuttle, Due Process and Punishment, 20 

Mich. L. Rev. 614 (1922) ........................................... 7
Perkins, Criminal Law 702-703 (1957) .........................  7
Sayre, Public Welfare Offenses, 33 Col. L. Rev. 55 

(1933) .......................................................................... 7
Sayre, Criminal Responsibility for the Acts of Another,

43 Harv. L. Rev. 689 (1930) ....................................  7



IN THE

Supreme Court of Appeals of Virginia
Record No. 5097

N.A.A.C.P. L egal , D e f e n s e  a n d  E d u c a t io n a l  F u n d , I n c .,
Petitioner,

v.
A. S. H a r r is o n , J r ., A t t o r n e y  G e n e r a l  of  V ir g in ia , e t  a l .,

Respondents.

PETITION FOR REHEARING

To the Honorable Judges of the
Supreme Court of Appeals of Virginia:

Petitioner, N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., appellant in the above-styled case, respectfully 
represents that it is aggrieved by the opinion and judgment 
or decree entered by this Court on the 2nd day of Septem­
ber, 1960, affirming so much of a final order of the Circuit 
Court of the City of Richmond as declared that Chapter 
33 of the Acts of the General Assembly, Extra Session 
1956, codified as Sections 54-74, 54-78, 54-79 of the Code 
of Virginia of 1950, as amended, 1958 Replacement Volume, 
construed in the light of the constitutional contentions



2

theretofore made by petitioner in the United States District 
Court for the Eastern District of Virginia, Richmond Divi­
sion, in a cause captioned N.A.A.C.P. Legal Defense and 
Educational Fund, Incorporated v. Patty, Civ. No. 2436, 
and reported sub nom National Association for the Ad­
vancement of Colored People v. Patty, 159 F. Supp. 503, 
vacated Harrison v. N.A.A.C.P., 360 U.S. 167, one, applies 
to and prohibits certain of the customary activities of peti­
tioner and, two, the evidence shows that petitioner, its 
officers and attorneys employed or retained by it or to 
whom it may contribute monies or services, are engaged 
in the improper solicitation of legal business and employ­
ment in violation of Chapter 33.

Upon careful consideration of the opinion and judgment 
or decree of this Court in the foregoing particulars, peti­
tioner is of the opinion that this Court’s holding thereon 
is erroneous and in serious conflict with the decisional 
law and legal authorities apposite to the criminal and 
disciplinary liability of petitioner, its officers, attorneys 
and agent, under Chapter 33 for the conduct and activities 
shown by the evidence material and relevant to the issue 
raised thereon in the pleadings, particularly to the issue 
of fact finally presented. Petitioner also feels obligated, 
in any event, to bring to the attention of this Court that 
the judgment or decree entered herein against it is errone­
ous insofar as it adjudges or decrees that “ Chapter 33, 
Acts of Assembly, Extra Session, 1956, is a constitutional 
and valid enactment,”  because neither petitioner’s plead­
ings and prayers in the court below nor assignments of 
error and conclusions urged in this Court raised this issue: 
rather, petitioner merely sought a construction of the Act 
“ in the light of constitutional objections presented in the 
[Federal] District Court.”  cf. Government Employees v. 
Windsor, 353 U.S. 364, 366. These considerations constrain 
petitioner to present this petition for rehearing and for 
the vacation or modification of the aforesaid holding and 
judgment or decree.



3

ARGUMENT
I

The Ruling Thai Chapter 33 Applies to Petitioner's Activities 
Is Not Supported by the Record and Conflicts With the 
Applicable Decisional Law

Chapter 33 was elaborately analyzed in the petition for 
appeal (pp. 26-28, 35-37). That analysis, briefly put, was 
that petitioner’s conduct could not violate Chapter 33 unless 
it amounted to an improper solicitation of business for an 
attorney or for itself; and, unless either petitioner or its 
regional counsel in Virginia improperly solicited business, 
Chapter 33 is inapplicable. With this, the Court appears 
to agree: the provisions of Chapter 33 “ deal with solicita­
tion of any legal or professional business or employment, 
either directly or indirectly,”  (Opinion, p. 15), and, to the 
extent that the former law was amended, the Act “ broadens 
the offense specified which theretofore made it unlawful 
for any person, corporation, partnership or association 
to act as a runner or capper for an attorney at law or to 
solicit any business for him, to make it unlawful for a 
person, association or corporation to solicit any business 
for an attorney at law or any other person, corporation 
or association”  (Id., p. 17).

The Court, however, considering the evidence material 
and relevant to issues raised as to Chapter 33 on the plead­
ings, particularly the final issue of fact presented, con­
cluded that petitioner’s conduct violated Chapter 33. And, 
therefore, petitioner submits that the record does not sus­
tain this conclusion.

At the outset, it should be said that any assumption that 
petitioner supplies services or monies in all Virginia litiga­
tion in which the N.A.A.C.P. is interested or identified goes 
beyond the record herein. In those litigations which the 
record shows that petitioner rendered services or monies, 
or both, the evidence is as follows:



4

In the Prince Edward County school case, the firm of 
which the regional counsel was then a member was con­
tacted directly by the parties who by written authorizations 
directly employed the firm as counsel (ft. 120; PI. Ex. R-9, 
p p . 211-215) ;*

In the Norfolk school case, three attorneys were directly 
engaged by the parties with authority to enlist other 
counsel, pursuant to which the regional counsel was by 
them associated (R. 114-115; PI. Ex. R-9, p. 219);

In the Newport News school case, two attorneys were 
directly retained by the parties and authorized to associate 
other counsel, and the Fund’s regional attorney associated 
with them at their request (R. 107, 137, 139, 141, 144, 148, 
151, 152, 156, 162, 164, 209; PI. Ex. R-9, p. 219);

In the Arlington school case, the Fund’s regional counsel 
came into the case on request from counsel directly re­
tained by the parties pursuant to authority from the clients 
to associate additional counsel (R. 116-118, 166-167, 173, 
176, 179, 185-186; PI. Ex. R-9, p. 220);

In the Charlottesville school case, counsel directly en­
gaged by the parties associated, pursuant to authority so 
to do, additional counsel of whom the Fund’s regional 
counsel was one (R. 110, 192, 196, 199, 202, 204, 206; PL 
Ex. R-9, pp. 216-219);

In the Warren County school case, the Fund’s regional 
counsel, on request of the attorney directly employed by 
the parties, associated with him (R. 130).

The executive secretary of the State Conference testified 
that he did not refer any of the parties to these cases to

* References “  R. .. ”  are to the record in this case, and those ‘ ‘ PI. Ex. 9, 
p. are to the printed record in Harrison v. National Association for the 
Advancement of Colored People, 360 U.S. 167, which is Plaintiffs’ Exhibit 9 
in the record in this case. All such references are to the page numbers 
printed in the upper left and right corners of the page rather than to the 
original page numbers.



5

the Conference’s legal staff but that, rather, the parties 
directly employed their counsel (R. 62-63). Nor is there 
evidence to suggest that petitioner brought about the em­
ployment by the parties of the attorneys they selected.

Petitioner submits that the record is devoid of evidence 
upon which it might be concluded that there was solicitation 
in any of these cases either by it or by its regional counsel. 
In each instance the employment of initial counsel was 
direct, in one such instance its regional counsel was one 
of those directly employed, and in the others he associated 
at the request of the parties’ attorneys expressly or im­
plicitly authorized to request his association (PI. Ex. R-9, 
pp. 334, 388). This was in line with petitioner’s general 
policy by which assistance is not afforded unless and until 
the party or his personally-retained attorney specifically 
requests it (PI. Ex. R-9, pp. 253, 270-271, 272, 280, 290, 319).

Petitioner further submits that the conclusion that it 
has violated the statute is not supported by the evidence. 
It is not shown that its regional attorney solicited employ­
ment in any case, or accepted compensation from anyone 
except petitioner, or accepted employment from anyone 
except the parties in consequence either of direct engage­
ment by them or association at the request of their retained 
counsel. Nor is it shown that petitioner participated in 
any way save to afford assistance to the litigation after 
counsel had been engaged.

The record does not establish impropriety on the part of 
counsel directly engaged insofar as their employment is 
concerned. Even if there were, there is no evidence indica­
tive of knowledge thereof by petitioner or its counsel. 
Such knowledge would be essential to the conclusion that 
the statute was violated, Sec. 54-74(6), and to any con­
clusion that its assistance was otherwise improper.

Whoever may have violated Chapter 33, assuming pro 
arguendo that someone is blameworthy, the record surely



6

sustains no conclusion other than that petitioner and its 
regional attorney in Virginia have not violated it and are 
blameless.

Of course, it has long been true that each member of a 
law firm, irrespective of whether he participated in or 
knew of the transaction, is civilly liable to a client for the 
misconduct of any of the firm’s members within the scope 
of their authority. See, e.g., Warner v. Griswold, 8 Wend. 
665 (N.Y. 1832); Gordon v. Coolidge, 10 Fed. Cas. No. 
5,606 (C.C.D. Me., per Justice S tory ); Priddy v. McKenzie, 
205 Mo. 181, 103 S.W. 968 (1907); Anno: Ann. Cas. 1917B, 
16-17. But it is also well settled that one member of a 
law firm is not subject to disbarment or discipline because 
of the misconduct of any member without knowledge of, 
or consent to or participation in, the transaction. Compare 
Klingensmith v. Kepler, 41 Ind. 341 (1872), 50 Ind. 432 
(1875); Porter v. Vance, 14 Lea. 629 (Tenn. 1885); Re Luce, 
83 Cal. 303, 23 P. 350 (1890); Re Rockmore, 130 App. Div. 
586, 117 N.Y.S. 512 (1909); Re Clark, 161 App. Div. 630, 
146 N.Y.S. 1030 (1914); In re Maloney, 35 N.D. 1, 153 N.W. 
385 (1915); State v. Rreslin, 67 Okla. 125,169 P. 897 (1917); 
In re Huff, 371 111. 98, 20 N.E. 2d 101 (1939) and Yale v. 
State Bar, 16 Cal. 2d 175, 105 P. 2d 112 (1940)1 with 
People ex rel Colorado Bar Asso. v. Betts, 26 Colo. 521, 
58 P. 1091 (1899); People ex rel. Morris v. Moutray, 166 
111. 630, 47 N.E. 79 (1897); People ex rel. Chicago Bar Asso. 
v. Bamborough, 255 111. 92, 99 N.E. 368 (1912); Re Helfant, 
228 App. Div. 479, 240 N.Y.S. 242 (1930); Re Brown, 389 
111. 516, 59 N.E. 2d 855 (1945); In re Buder, 358 Mo. 796, 
217 S.W. 2d 563, 576 (1949); and In re Rosenberg, 413 111. 
567, 110 N.E. 2d 186 (1953). Similarly, where attorneys, 
although not general partners, are associated together, 
one is not subject to disciplinary sanctions because of an 
associate’s misconduct unless he has knowledge of or par­

1 See also Re MeCaughey [1883] 3 Ont. Rep. 425; Re Ross [1895] 16 Ont. 
Rep. 482; Re Harris [1897] 3 Terr. L. R. (Can.) 70.



7

ticipates in it. Compare Crafts v. Lizotte, 34 R. I. 543, 
84 A. 1081 (1912) with In re Ariola, 252 App. Div. 61, 297 
N.Y.S. 100 (1937).

Moreover, since in Anglo-American jurisprudence crimi­
nal liability is essentially personal and individual and is 
also dependent upon proof of individual causation, the 
doctrine of liability without fault or “ strict liability”  
has never been accepted in criminal law except with regard 
to a limited species of offenses variously classified as 
public welfare or regulatory or civil offenses. Sayre, Crimi­
nal Responsibility for the Acts of Another, 43 Harv. L. Rev. 
689, 720 (1930); Sayre, Public Welfare Offenses, 33 Col. 
L. Rev. 55 (1933); Gausewitz, Criminal Law—Re Classifica­
tion of Certain Offenses as Civil Instead of Criminal, 12 
Wis. L. Rev. 365 (1937); Hall, Principles of Criminal Law 
279-322 (1947). And even the application of “ strict lia­
bility”  to such offenses is unreasonable, unjust and con­
stitutionally suspect. Mugler v. Kansas, 123 U.S. 623, 661 
(1887); United States v. Dotterweich, 320 U.S. 277, 285-286 
(1943, dissenting opinion); Ex parte Rales, 42 Okla. Cr. 
Rep. 28, 274 P. 485, 486 (1929); State v. Strasburg, 60 
Wash. 128, 110 P. 1027 (1910); Gillespie v. People, 188 111. 
176, 58 N.E. 1007 (1900); Lawton v. Steele, 119 N.Y. 226, 
23 N.E. 878 (1890); Port Huron v. Jenkinson, 77 Mich. 
414, 43 N.W. 923 (1889). See also State v. Schultz, 242 
Iowa 1328, 50 N.W. 2d 9 (1951); Canfield, Corporate Re­
sponsibility for Crime, 14 Col. L. Rev. 469, 480 (1914); 
Francis, Criminal Responsibility for the Corporation, 18 
III. L. Rev. 305 (1924); Laylin and Tuttle, Due Process and 
Punishment, 20 Mich. L. Rev. 614 (1922). Cf. United States 
v. Rurdett, 9 Pet. 682 (U.S. 1835); People v. Winter, 288 
N.Y. 418, 43 N.E. 2d 470 (1942). Indeed, in view of these 
latter considerations, it is not surprising that the direct 
or indirect solicitation of legal or professional business 
does not fall within the eight categories of offenses for 
which criminal sanctions are imposed under the doctrine of 
strict liability. See Perkins, Criminal Law 702-703 (1957).



8

Nor is it surprising that there are only a handful of prose­
cutions revealed in the reported decisional law of the 
thirty-odd states with statutes which make it a criminal 
offense for attorneys or others, or both, to solicit legal 
business for an attorney or themselves.2 See Worthan v. 
State, 189 Ala. 395, 66 So. 686 (1914); People v. Gottleib 
{People v. Levy) 8 Cal. App. 2d 763, 50 P. 2d 509 (1935); 
Kelley v. Boyne, 239 Mich. 204, 214 N.W. 316 (1927); 
People v. Galerson, 276 N.Y. 656, 13 N.E. 2d 47 (1938); 
People ex rel. Moses v. Adams, 172 Misc. 143, 14 N.Y.S. 
2d 780 (1939); People v. Levine, 161 Misc. 336, 291 N.Y.S. 
1001 (1936); People v. Meola, 193 App. Div. 487, 184 
N.Y.S. 353 (1920); People v. Winter, 288 N.Y. 418, 43 
N.E. 2d 470 (1942) ;3 Ex parte McCloskey, 82 Tex. Cr. 
Rep. 531, 199 S.W. 1101 (1918), affirmed McCloskey v. 
Tobin, 252 U.S. 107 (1920); Ackerman v. State, 124 Tex. 
Cr. Rep. 125, 61 S.W. 2d 116 (1933); Laird v. State, 156 
Cr. Rep. 345, 242 S.W. 2d 374 (1951); Parkins v. State, 
116 Tex. Cr. Rep. 52, 28 S.W. 2d 137 (1930), and none of 
these cases was sustained on the merits absent a record 
which clearly established actual knowledge, consent or 
participation in the solicitation of such business or em­
ployment. Were this not the case, petitioner, in the light 
of the authorities cited above, suggests that the consti­
tutionality of this legislation would not have been upheld 
in the Galerson, Kelley, Adams and McCloskey cases, supra. 
Therefore, petitioner submits, the Court’s ruling that 
Chapter 33 applies to petitioner’s activities is not sup­
ported by the record herein and conflicts with applicable 
decisional law and apposite authorities.

2 Alabama, California, Colorado, Connecticut, Florida, Georgia, Hawaii, 
Illinois, Indiana, Louisiana, Maryland, Massachusetts, Michigan, Minnesota, 
Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New 
Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, 
Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, 
Washington, West Virginia, Wisconsin, Wyoming.

3 Cf. In re Marrell, 1 App. Div. 2d 328, 149 N.Y.S. 2d 772 (1956).



9

II
The Constitutional Validity of Chapter 33 Was Not An Issue 

Before the Court on This Appeal
In its opinion, the Court concluded that “ chapter 33 

is a valid regulation of the practice of law, enacted under 
the police power of the State, and is not violative of any 
constitutional restrictions,”  and, in its judgment or decree, 
affirmed the order appealed from “ in so far as it holds 
that Chapter 33, Acts of Assembly, Extra Session, 1956, is 
a constitutional and valid enactment.”  Petitioner submits 
that the Court erred in making such determination as to it.

The history of this litigation in the Federal District 
Court, prior to institution of suit in the court below, is 
set forth in the petition for appeal herein (pp. 2-3). As 
was then pointed out, the District Court entered judgment 
retaining jurisdiction as to Chapters 33 and 36 pending 
interpretation of these laws by the courts of Virginia. For 
this purpose only, suit was brought in the court below. 
Conformably to Government Employees v. Windsor, 353 
TJ.S. 364, petitioner sought construction of the laws in 
the light of its constitutional contentions made in the 
District Court.

Neither in its pleadings nor in its prayers did petitioner 
present the question whether Chapter 33 is constitutionally 
valid; that issue it left for future decision by the District 
Court. For this reason, the court below made no ruling 
or adjudication on this question (R. 31). Nor was the 
issue raised by the assignment of error or conclusions 
presented to this Court. (R. 51-54). The function of this 
Court was therefore limited to interpretation of the laws 
in question, leaving to the District Court decision on all 
other issues, Spector Motor Service v. Walsh, 135 Conn. 
37, 61 A. 2d 89, 92,105 (1948), and it is therefore submitted 
that, in any event, the opinion and judgment or decree of 
this Court should be modified accordingly.



10

CONCLUSION
For the foregoing reasons, petitioner prays that this 

Court will review and rehear this case, and vacate or 
modify its decision and its judgment or decree herein in 
the particulars specified in this petition.

Respectfully submitted,

N.A.A.C.P. L e g a l  D e f e n s e  an d  
E d u c a t io n a l  F u n d , I n c .

By: S po t t sw o o d  W. R o b in s o n , III,
214 East Clay Street, Room 208, 
Richmond 19, Virginia.

T h u r g o o d  M a r s h a l l ,
10 Columbus Circle, Suite 1790, 
New York 19, New York.

Counsel for Petitioner.



11

CERTIFICATE
I hereby certify that on the 30th day of September, 1960, 

three copies of the foregoing petition for rehearing were 
mailed, with first class postage prepaid, to each of the fol­
lowing persons at their respective addresses shown:

David J. Mays, Esquire,
Counsel for Respondents,
State-Planters Bank Building,
Richmond, Virginia.
Henry T. Wickham, Esquire,
Counsel for Respondents,
State-Planters Bank Building,
Richmond, Virginia.
Honorable Albertis S. Harrison, Jr.,
Attorney General of Virginia,
Supreme Court Building,
Richmond, Virginia.

S po tt sw o o d  W. R o b in s o n , III,
Of Counsel for Petitioner



.