Muir v. Louisville Park Theatrical Association Petition for Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    IN' TH E

(tort ni tlir Initri*
October Term, 1952

No.

JAMES W. MUIR,

vs.
Petitioner,

LOUISVILLE PARK THEATRICAL ASSOCIATION.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

R obert L. Carter,
T hurgood Marshall, 
Benjamin F. Shobe,

Counsel for Petitioner.

E lwood H. Chisolm, 
David E. P insky,

of Counsel.

Supreme Printing Co., Inc., 41 M urray Street, N. Y „ BArclay 7-0349 
49





TABLE OF CONTENTS

Opinions Be l o w .............................   1

J urisdiction ..............................................................    1
Question P resented ............................................................. 2

Statement .............................................    2

General Background...........................    2
The Leasing Agreement Between the City and 

Respondent............................................................ 4
Specifications of E rror ....................................................  7
R easons F or A llowance of the W r i t .............................  8

1. This case seriously affects the right of Negro
citizens to enjoy the benefits of publicly-owned 
recreational facilities.........................................  8

2. Whether the respondent’s operations in this
case constitute state action presents a sub­
stantial federal question which should be inde­
pendently determined by this C ourt.................  11

3. Decisions among state and lower federal courts
with respect to the status of leasing arrange­
ments between municipalities and private or­
ganizations are in conflict and should be re­
solved ...................................................................  14

4. The decision below is in conflict with principles
established in decisions of this Court, particu­
larly Nixon v. Herndon .....................................  18

5. The decision in this case is in conflict with the
principles enunciated by this Court in Nixon 
v. Condon, Smith v. Allright and Terry v. 
Adams with respect to the delegation of state 
authority.............................................................. 20

PAGE



11

6. The decision of the Court below conflicts with 
well-settled doctrine of this Court that rights 
guaranteed under the 14th Amendment are per­

PAGE

sonal and present ...........................................  24
Conclusion.....................................................................  25
A ppendix A—Agreement.............................    26
A ppendix B—Statutes of Kentucky—Applicable to 

Parks in Cities of the First-Class..........................  31

Table of Cases Cited

Baskin v. Brown, 174 F. 2d 391 (C. A. 4th 1949)___  21n
Beal v. Holcombe, 193 F. 2d 384 (C. A. 5th 1951)___  9n
Board of Park Commissioners v. Speed, 215 Ky. 319,

285 S. W. 212 (1926) ................................... .13,18, 20
Boyer v. Garrett, 183 F. 2d 582 (C. A. 4th 1950), 

cert, denied 340 U. S. 912.........................................  9n
Camp v. Recreation Board for the District of Colum­

bia, 104 F. Supp. 10 (D. C. 1952) ..........................  9n
Culver v. City of Warren, 84 Ohio App. 373, 83 N. E.

2d 82 (1948) .................................................. 9n, 12n, 15, 22
Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 87 

N. E. 2d 541 (1949), cert, denied 339 U. S. 981 . . . .  22
Draper v. City of St. Louis, 92 F. Supp. 546 (E. D.

Mo. 1950), appeal dismissed 186 F. 2d 307 (C. A. 8th
1950)........................................................................... 9n

Durkee v. Murphy, 181 Md. 259, 29 A. 2d 253 (1942) 9n
Grovey v. Townsend, 295 U. S. 4 5 ________________  15
Hague v. Congress of Industrial Organization, 307

U. S. 496 .................................................................  20n
Harris v. City of Daytona Beach, 105 F. Supp. 572

(S. D. Fla. 1952) .......................................................  9n
Harris v. City of St. Louis, 233 Mo. App. 911, 111 

S. W. 2d 995 (1938) ...............................................15,16,22



I l l

Kern v. City Commissioners, 151 Kans. 565,100 P. 2d
709 (1940 ) ...................................................... 9n, 12n, 15, 22

Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 
(C. A. 4th 1945), cert, denied 326 U. S. 721 ......... 15, 22, 23

Law v. Mayor and City Council of Baltimore, 78 F.
Supp. 346 (Md, 1948).............................................. 9n

Lawrence v. Hancock, 76 F. Supp. 1004 (S. D. W. Va.
1948).............................................................9n,13,15,16,22

Lopez v. Seccombe, 71 F. Supp. 769 (S. D. Cal. 1944) 9n
McCabe v. Atchison, T. & S. F. Ey. Co., 235 U. S. 151 25
McLaurin v. Oklahoma State Eegents, 339 U. S. 637 19
Missouri ex rel. Gaines v. Canada, 305 U. S. 337 . . . .  19
Modern Amusements, Inc. v. New Orleans Public 

Service, 183 La. 848, 165 So. 137 (1935).............15,16, 23
Nash v. Air Terminal Services, 85 F. Supp. 545 (E. D.

Va. 1949) .......................................................10n,19,22,23
Nixon v. Condon, 286 U. S. 73 ............................14,15, 20-24
Nixon v. Herndon, 273 U. S. 536 ........................ 15,18,19, 20
Norris v. Mayor & City Council of Baltimore, 78 F.

Supp. 451 (Md. 1948)............................................... 10n
Park Commissioners of Ashland v. Shanklin, 304 Ky.

43, 199 S. W. 2d 721 (1947)............................13,14,18, 20
Public Utilities Commission of the District of 

Columbia v. Pollack, 343 IT. S. 4 5 1 .......................... 19
Eice v. Arnold, 340 U. S. 848, vacating 45 So. 2d 195 

(Fla. 1950), reaffirmed 54 So. 2d 114 (Fla. 1951),
cert, denied 342 U. S. 896 ........................................  9n

Eice v. Elmore, 165 F. 2d 387 (C. A. 4th 1947), cert, 
denied 333 U. S. 875 .................................................15, 21n

Shelley v. Kraemer, 334 U. S. 1 ............................  15, 25
Sipuel v. Board of Eegents, 332 U. S. 631 ................. 19
Smith v. Allwright, 321 U. S. 649 ............................15, 20-24

PAGE



IV

Steele v. Louisville & Nashville R, R. Co., 323 U. S.
192 ............................................................................. 15

Sweatt v. Painter, 339 U. S. 629 ................................ 19
Terry v. Adams,------U. S .------- , 21 U. S. L. Week

4346 (May 4 ,1953)...........................................15, 20-22, 24
Tunstall v. Brotherhood of Locomotive Firemen, 323 

U. S. 2 1 0 ...................................................................  15
United States v. Classic, 313 U. S. 299 ................ 15
Warley v. Board of Park Commissioners, 233 Ky 

688, 26 S. W. 2d 554 (1930).....................................  18
Williams v. Kansas City, 104 F. Supp. 848 (W. I) Mo 

1952) .................................................................. . gn

Other Authorities Cited

Barnett, What is State Action Under the Fourteenth, 
Fifteenth, and Nineteenth Amendments of the Con­
stitution? 24 Ore. L. Rev. 227 (1945)____________  Ion

Dulles, America Learns to Play (1940)..................... 8n
Gardner, Recreation’s Part in Mental Health, 45 

Recreation 446 (1952) .............................................  8n
Hewitt, A  Backward Glance at ’49, 35 Equity 11 

(April, 1950) ............................................................ 12n
Hewitt, The Survey of Summer Stock, 34 Equity 13 

(April, 1949) .................................   12n

Hjelte, The Administration of Public Recreation 
(1940) .......................................................................  8n

Institute for Training in Municipal Administration, 
Municipal Recreation Administration (1945) . . . .  8n

National Park Service, U. S. Dept, of Interior, Fees 
and Charges for Public Recreation (1939) .......... 10n

PAGE



V

National Recreation Association, Recreation and 
Park Year Book (Mid-century edition 1951) ___8n, 9n

Neumeyer, Leisure and Recreation (1936) .............  8n
Recreation, Encyclopedia of Social Sciences (1934). 8n
Rogers, The Child at Play (1932) ............................  8n
Slavson, Recreation and the Total Personality (1946) 8n
Steiner, Americans at Play (1933) ............................  8n
The Thirty-third National Recreation Congress-in 

Review, 45 Recreation (1951) ...............................  8n

Statutes Cited

Ky. Rev. Stat. § 97.252 (1948) .................................... 20n
Ky. Rev. Stat. §97.290' (Baldwin’s certified ed., 1942) 

as incorporated into Ky. Rev. Stat. § 97.250’ (1948) 20n

{

PAGE





IN  THE

(Emtrt rtf ttj? Inttrri States
October Term, 1952 

No.

------------------- —o---------— •———
James W. Muir,

Petitioner,

vs.
L ouisville P ark T heatrical A ssociation. 

------------------------o--------------------—

p e t i t i o n  f o r  w r i t  o f  c e r t i o r a r i  t o  t h e
UNITED STATES COURT OF APPEALS FOR THE 

SIXTH CIRCUIT

Petitioner, James W. Muir, prays that a writ of 
certiorari issue to review the judgment of the United States 
Court of Appeals for the Sixth Circuit entered in the 
above-entitled case on February 20, 1953.

Opinions Below

The memorandum opinion of the United States District 
Court for the Western District of Kentucky is reported 
at 102 F. Supp. 525 (R. 20). The opinion of the Court of 
Appeals for the Sixth Circuit is not yet reported and may 
be found in the record at page 83.

Jurisdiction

The judgment of the Court of Appeals was entered on 
February 20, 1953 (R. 83). The jurisdiction of this Court 
is invoked under Title 28, United States Code, Section 
1251(1).



2

Question Presented

Whether respondent, who leases from the City of Louis­
ville a publicly owned and maintained amphitheatre located 
in a public park, can refuse petitioner admission thereto 
on tender of the required admission fee solely because of 
race and color, without violating his rights to equal pro­
tection of the laws within the meaning of the Fourteenth 
Amendment.

Statement

General Background

Petitioner, together with two other plaintiffs below— 
Mona Carroll and P. 0. Sweeney—brought an action in 
the District Court against the City of Louisville, T. Byrne 
Morgan, Director of Parks and Recreation for the City, 
and the Louisville Park Theatrical Association, respondent 
here. The action, brought as a class suit on behalf all other 
Negroes similarly situated, sought to establish the right of 
Negro citizens of Louisville to the use of park and recre­
ational facilities without discrimination on account of race 
and color where such facilities are owned by the City and 
maintained in whole or in part out of public funds (R. 2-8).

The City of Louisville maintains segregated parks for 
its Negro and white citizens. Since 1928 regulations have 
been in effect whereby certain parks are designated for the 
exclusive use of white persons while others are maintained 
for the exclusive use of Negroes (R. 43). There are 21 
white parks with a total acreage of 2,027 acres; in contrast, 
10 parks are provided for Negroes with a combined acreage 
of 112 acres (R. 44-45).

While neither a golf course, a fishing lake nor an 
amphitheatre is provided in the Negro parks, such facilities 
are provided by the City in the white parks (R. 43). Plain-



3

tiff Sweeney, desiring to play golf, requested of the City 
and its Director of Parks and Recreation permission to play 
golf on the above City-operated golf courses. His request 
was admittedly denied solely because he was a Negro (R. 
43). Similarly, plaintiff Carroll, an infant, through her 
father, asked permission to use the fishing lake in Cherokee 
Park. This request, too, was denied solely because of 
plaintiff Carroll’s race and color (R. 43).

In Iroquois Park, the largest park in Louisville and 
one designated for the use of white persons, the City main­
tains an open-air amphitheatre known as Iroquois Amphi­
theatre (R. 46). Under an agreement with the City, the 
Louisville Park Theatrical Association, respondent here, 
presents musical entertainment during the summer season. 
On July 22, 1949, petitioner, James Muir, sought admission 
to Iroquois Amphitheatre to see a performance of “ Blossom 
Time” , a musical production presented by respondent 
association. Although this was a performance to which 
the general public could gain admission by paying an admis­
sion fee, respondent refused to sell petitioner a ticket solely 
because he was a Negro (R. 19, 47).

The three plaintiffs below instituted this action on 
July 28, 1949, seeking a declaratory judgment and injunc­
tive relief on the ground that the refusal to admit them 
to the several facilities violated the right of each plaintiff 
to the equal protection of the laws guaranteed by the 
Fourteenth Amendment to the Constitution of the United 
States (R. 2-9). A stipulation of facts was filed on August 
6, 1951 (R. 18-19), and on the same date a hearing on the 
merits was held in the District Court (R. 41-62).

On September 14, 1951, the District Court filed its 
opinion and findings of fact and conclusions of law (R. 
20-35). On January 18, 1952, final judgment was entered 
(R. 36-38). That court found that the City violated the 
Fourteenth Amendment in providing golf facilities for



4

white citizens without furnishing similar recreational 
facilities for Negroes. The City was enjoined from exclud­
ing plaintiff Sweeney and other Negroes from such golf 
courses on the basis of race and color. The District Court 
dismissed the complaint with respect to plaintiff Carroll 
on the ground that she had failed to produce any evidence 
to support her claim that the fishing facilities afforded 
Negroes were substantially inferior to those provided for 
white persons (R. 37). Plaintiff Carroll took no appeal.

The court also dismissed the complaint as to petitioner, 
holding that respondent was a private corporation not 
subject to the Fourteenth Amendment. The court further 
held that the City, in allowing respondent to lease Iroquois 
Amphitheatre for a “ private operation for a short period 
of time” , did not violate the Fourteenth Amendment where 
there was no showing that Negro organizations were not 
allowed to lease the Amphitheatre under similar terms on 
a non-discriminatory basis (R. 37). On appeal the Court 
of Appeals for the Sixth Circuit affirmed (R. 83).

The Leasing Agreement Between the 
City and Respondent

The facts with respect to the use of Iroquois Amphi­
theatre are not in dispute. They are contained in the 
stipulation of facts (R. 18-19, 42-47), three agreements 
entered between the Association and the City (R. 62-79) 
and the current agreement appended hereto as Appendix A.

In 1938, the Board of Park Commissioners of the City 
of Louisville erected an open-air amphitheatre in Iroquois 
Park (R. 18). Iroquois Amphitheatre was constructed and 
equipped out of public funds supplied by the Federal Works 
Progress Administration, with the exception of $5000 con­
tributed by respondent (R. 18). Since 1938 a series of 
agreements have been in effect between the City and respond­
ent, a non-profit domestic corporation, whereby the latter



5

was given the exclusive use of the Amphitheatre during the 
summer season.

The first agreement granted respondent the exclusive 
use of the Amphitheatre from May 1 until September 30 
during the years 1938-1942 (R. 62-71). The second agree­
ment extended these provisions for a period of five addi­
tional years (R, 71-74). The third agreement, the one in 
force at the time petitioner was refused admission, covered 
the period 1947-1951 and is substantially similar to the 
earlier contracts (R. 74-79).

Under the terms of this agreement, respondent was 
granted the exclusive use of the Amphitheatre during the 
period May 1 to September 30 for the purpose of rehears­
ing or presenting musical, dramatic, athletic or any other 
form of entertainment it might select (R. 74-75). Respond­
ent was permitted to charge an admission fee, provided 
such admission fees and charges were “ reasonable and 
consistent with the desire of both [the City and the Associa­
tion] to increase the use of Iroquois Park by making the 
entertainment presented at said Amphitheatre available 
to the public at low cost”  (R. 75-76).

Respondent was not required to pay rent. It agreed 
to pay the electric bill from May 1 until September 30 
and the salaries of all persons employed in connection with 
any entertainment provided (R. 76). It further agreed 
to pay over to the City all net profits realized from its 
operations after deducting the initial $5000 contributed by 
it to the cost of constructing the Amphitheatre (R. 77-78).

The Association was required to furnish to the City 
on January 1 of each year an audited statement of monies 
received and expended in connection with its operation 
of the Amphitheatre (R. 77). This statement was also 
to include a listing of all entertainment produced under 
its auspices during the preceding season, the admission 
fees charged, the number of persons attending, and such



6

other information as would help the City in determining 
whether the operation of the Amphitheatre had “ in fact 
contributed materially to the use and enjoyment of the 
park system by the public”  (R.77).

The City retained the care, management, and custody 
of the Amphitheatre and all its equipment and appurten­
ances (R. 78). No new structure could be erected, no work 
begun to replace, maintain or repair equipment, appurten­
ances or physical property connected with the Amphitheatre 
except on the joint decision of the City and respondent 
(R. 76).

The City agreed to furnish water (R.76) and to provide 
roads, paths and parking areas necessary to accommodate 
persons desiring to attend entertainment given under re­
spondent’s auspices (R. 77). The City reserved the right 
to make and enforce reasonable rules and regulations, to 
insure good order, to prohibit any entertainment indecent, 
immoral or calculated to create racial or religious antago­
nism or to disturb the public peace (R. 79).

The City retained the right to authorize the use of the 
Amphitheatre for any purpose not inconsistent with rights 
conferred upon respondent (R. 78). However, the City 
agreed not to permit any other party to use the Amphi­
theatre between May 1 and September 30 for the purpose 
of presenting entertainment at which an admission fee is 
charged or from which monetary profit is expected unless 
such party first sought to sublease the Amphitheatre from 
respondent and the latter arbitrarily refused (R. 78). 
Finally, the City retained the right to unilaterally terminate 
the agreement if it deemed it not in the best interest of 
the public (R. 79).

On September 30, 1951, after the filing of the trial 
court’s memorandum opinion but before entry of judg­
ment, the agreement then in effect between the City and



7

respondent expired. A new agreement was entered which 
is set forth in Appendix A. While this agreement was for 
the year 1952, it has now been renewed for the year 1953. 
This agreement for the first time sets forth the City’s 
desire to have “ similar organizations use the facilities of 
Iroquois Amphitheatre.”  Respondent is granted the ex­
clusive right to use the Amphitheatre between June 14 and 
August 23. The City expressly agrees that it will not 
give permission to any other party to use the Amphitheatre 
during the above period without first obtaining the written 
consent of respondent. Moreover, this agreement, unlike 
its predecessors, does not reserve to the City the right 
to overrule an arbitrary refusal to sublease on the part 
of respondent. Further, the present lease requires the 
payment by respondent of a rental fee of $1000. In most 
other respects, the present agreement is the same as the 
prior agreements.

Specifications of Error

The court erred:
1. In refusing to hold that respondent was operating 

for and on behalf of the Department of Parks and Recrea­
tion of the City of Louisville.

2. In refusing to hold that respondent, as lessee of the 
City of Louisville, was subject to the same limitations and 
restrictions as the City itself with respect to its power to 
deny admission or exclude persons solely on the basis of 
race and color.

3. In refusing to hold that petitioner had been denied 
the equal protection of the laws by respondent’s refusal 
to admit him to a city owned structure located in a public 
park.



8

Reasons For Allowance of the Writ

1. This case seriously affects the right of Negro citi­
zens to enjoy the benefits of publicly-owned recreational 
facilities.

Public recreation has come to play an important role in 
20th century America.1 Recognition of the importance of 
recreation to the maintenance of strong democratic institu­
tions has come only within the past thirty to forty years.2 
It is now understood that effective recreational outlets are 
essential to the proper functioning of many of the impor­
tant aspects of modern living. Appropriate recreation is 
now considered an essential factor in the development of 
sound mental and physical health,3 a necessary aid to the 
building of good morale in the armed services,4 and an 
effective preventive to juvenile delinquency.5

The public has now accepted the notion that recreation 
is properly a governmental function 6 since only if the state 
assumes .some obligation in this field can there be any assur­
ance that needed recreational facilities will be available to 
the large mass of our population.7 * A recent survey lists

1 See Recreation, Encyclopedia o f Social Sciences 176 (1934 ); 
Dulles, America Learns to Play (1940) ; Steiner, Americans at Play 
(1933).

2 Neumeyer, Leisure and Recreation 1-72 (1936). For a statis­
tical survey, see National Recreation Association, Recreation and 
Park Year Book (Mid-century edition 1951).

3 Gardner, Recreation’s Part in Mental Health, 45 Recreation 
446 (1952) ; Slavson, Recreation and the Total Personality, Ch. 1-2 
(1946).

4 The Thirty-third National Recreation Congress— in Review, 
45 Recreation 370 (1951).

B Rogers, The Child at Play 34-36, 192 (1932).

6 Hjelte, The Administration of Public Recreation 24 (1940).

7 Institute for Training in Municipal Administration, Municipal
Recreation Administration 30 (1945).



9

36 different types of recreational facilities commonly oper­
ated by municipalities.8 There are alone 217 publicly- 
owned outdoor theatres and 504 publicly-owned stadiums 
reported.9

With the increase in governmental operations in this 
area, securing equal recreational opportunities for Negroes 
without discrimination on account of race or color, as in 
other phases of governmental activity, has become a prob­
lem which courts have been called upon to resolve.10 Courts 
have had little difficulty in bringing recreational facilities 
within the reach of the Fourteenth Amendment where they 
have been operated exclusively and openly by the state.11 
Confusion as to the application of constitutional principles, 
however, has arisen where the public recreational facility 
was operated pursuant to an agreement between the state 
and a private agency, e.g., the leasing arrangement in the

8 National Recreation Association, Recreation and Park Year 
Book (Mid-century edition, 1951).

9 Ibid.

10 See Rice v. Arnold, 340 U. S. 848, vacating 45 So. 2d 195 
(Fla. 1950), reaffirmed 54 So. 2d 114 (Fla. 1951), cert, denied 342 
U. S. 896; Beal v. Holcombe, 193 F. 2d 384 (C. A. 5th 1951); Boyer 
v. Garrett, 183 F. 2d 582 (C. A. 4th 1950), cert, denied 340 U. S. 
912; Harris v. City of Daytona Bench, 105 F. Supp. 572 (S . D. Fla. 
1952) ; Camp v. Recreation Board for the District of Columbia., 104 
F. Supp. 10 (D . C. 1952) ; Williams v. Kansas City, 104 F. Supp. 
848 (W . D. Mo. 1952), appeal pending; Draper v. City o f St. Louis, 
92 F. Supp. 546 (E. D. Mo. 1950), appeal dismissed 186 F. 2d 307 
(C. A. 8th, 1950) ; Law v. Mayor and City Council of Baltimore, 
78 F. Supp. 346 (M d. 1948); Lawrence v. Hancock, 76 F. Supp. 
1004 (S. D. W . Va. 1948); Lopez v. Seccombe, 71 F. Supp. 769 
(S . D. Cal. 1944) ; Kern  v. City Commissioners, 151 Kan. 565, 
100 P. 2d 709 (1940); Durkee v. Murphy, 181 Md. 259, 29 A. 2d 
253 (1942 ); Culver v. City o f Warren, 84 Ohio App. 373 83 N E 
2d 82 (1948).

11 See Law v. Mayor and City Council of Baltimore, supra; Beal 
v. Holcombe, supra.



10

instant case. The arrangement here involved is not an iso­
lated or singular case but a common feature in this field. 
A  1939 survey revealed that 128 governmental agencies re­
ported that they had leased certain facilities on a commer­
cial basis.12 Thirty out of 156 such agencies reporting leased 
one or more facilities to a private club or association on a 
non-commercial basis.13

The decision of the Court of Appeals will thus have rami­
fications far beyond the narrow facts of the instant case. 
In the light of this case the constitutional right of Negroes 
and other minority groups to receive the services of all 
presently leased municipal recreational facilities without 
discrimination becomes questionable. If the view of the 
court below is correct, Negroes may now be effectively ex­
cluded from given public recreational facilities by a simple 
leasing device. Indeed, the same stratagem can be used 
not only in the case of recreational facilities, but with re­
spect to all types of governmental property.14

It is vital for this Court to grant certiorari in this case 
in order to determine the extent to which the operation of 
a public recreational facility under a leasing arrangement 
with a private organization is subject to constitutional limi­
tations. Only in this way can Negro citizens be assured of 
protection in obtaining the benefits of public recreational 
facilities on the basis of equality required by the Four­
teenth Amendment.

12 National Park Service, U. S. Dept, o f Interior, Fees and 
Charges for Public Recreation, 20-21, 29 (1939).

13 Ibid.

14 Compare Nash v. Air Terminal Services, 85 F. Supp. 545 
(E. D. Va. 1949), with Norris v. Mayor & City Council of Baltimore, 
78 F. Supp. 451 (M d. 1948).



11

2. Whether the respondent’s operations in this case 
constitute state action presents a substantial federal ques­
tion which should be independently determined by this 
Court.

The stipulations of fact and the terms of the leasing 
agreements which provide the predicate of the decision in 
this case establish a picture of state ownership and control. 
The Department of Public Parks conceived of the construc­
tion of Iroquois Amphitheatre as a means of increasing 
the use and enjoyment of its public park system (R. 62-63). 
It was able to secure all but $5,000 of the necessary funds 
from the United States Works Progress Administration 
(R. 63). Respondent, which was organized to enable the 
general public to enjoy musical and dramatic entertain­
ment, agreed to assist the City in procuring the necessary 
$5,000 to construct the Amphitheatre and undertook to 
present entertainment at the Amphitheatre. Thus, from the 
very inception of this relationship respondent acted as the 
chosen instrument of the City.

Under the lease in force when this cause arose respond­
ent had exclusive use of the Amphitheatre from May 1-Sep- 
tember 30 (R. 18, 74-75)—the entire period of its useful­
ness for open air presentation. Respondent paid no rent, 
and was required to pay all net profits over to the City 
(R. 78). It had but a qualified right to set admission prices 
(R. 75-76). Moreover, just as any other self-sustaining 
governmental agency, respondent was required to submit 
an annual report of its operations, including an audited 
financial statement (R. 77), and to conduct its activities for 
the benefit of the public (R. 75, 76, 77).

The City, on its part, retained the care, management and 
custody of the structure. Yet the City could make no repairs 
or replacements of any structure or equipment except upon 
the joint decision of both parties (R. 76) and retained only 
a qualified right to sublease (R. 78). Finally, the City re-



12

served the right to unilaterally terminate the agreement 
(R. 79).

These factors, we submit, show clearly that respondent 
was acting for and under the supervision and control of the 
Department of Public Parks. Indeed, respondent here was 
merely aiding the City in accomplishing one of its objec­
tives.

The present lease requires the respondent to pay a 
modest rental fee of $1000,15 and does not require the sub­
mission of an annual financial statement.

Respondent is granted exclusive use for a somewhat 
shorter season (June 14 through August 23),16 but the 
dates pre-empted are those most favorable for presenta­
tion of outdoor cultural entertainment. Furthermore, this 
is the traditional outdoor musical season.17

The City can now sublease to others only with respond­
ent’s written consent. It may no longer overrule respond­
ent’s arbitrary refusal to sublet. The duty to keep and 
maintain the structure in good repair is placed upon 
respondent. Other than style, the current agreement is iden­
tical in all major respects with the one detailed above.

15 Payment of rental is not a crucial indication o f private action. 
See Culver v. City of Warren, supra, note 10; Kern v. City Commis­
sioners, supra, note 10.

16 This merely conforms more realistically to the period when re­
spondent actually presented productions in the outdoor theatre in pre­
vious years (R . 19) : July 1-August 10, inclusive, 1947; July 5- 
August 14, inclusive, 1948; July 11-August 21, inclusive, 1949; July 
10-August 6, inclusive, 1950 and July 6-August 19, inclusive, 1951. 
These dates do not include periods when respondent used the prem­
ises for rehearsals, etc.

17 Hewitt, A  Backward Glance at ’49, 35 Equity 11 (April, 1950); 
Hewitt, The Survey of Summer Stock, 34 Equity 13 (April, 1949).



13

Thus, in our view, under the present agreement respond­
ent remains an instrument of the state in its operation of 
the Iroquois Amphitheatre. The words of the court in 
Lawrence v. Hancock, 76 F. Supp. 1004, 1008 (S. D. W. Va. 
1948), seem particularly appropriate to describe this rela­
tionship :

“ Justice would be blind indeed if she failed to 
detect the real purpose in this effort of the City 
* * * to clothe a public function with the mantle of 
private responsibility. ‘ The voice is Jacob’s voice,’ 
even though ‘ the hands are the hands of Esau. ’ It is 
clearly but another in the long series of stratagems 
which governing bodies of many white communities 
have employed in attempting to deprive the Negro 
of his constitutional birthright; the equal protection 
of the laws.”

Moreover, it is equally clear under Kentucky law that the 
City is required to control the operation of the Amphithea­
tre. This duty is imposed upon the Director of the Depart­
ment of Parks and Recreation and cannot be delegated. 
Park Commissioners of Ashland v. S'hcmMin, 304 Ky. 43, 
199 S. W. 2d 721 (1947). In Board of Park Conwiissioners 
v. Speed, 215 Ky. 319, 285 8. W. 212 (1926), the court 
enjoined the Board of Park Commissioners of Louisville 
from entering into a contract with the Louisville Memorial 
Commission whereby the latter was to be given the power to 
erect and manage an auditorium on public park property. 
In so holding, the Court declared at page 333:

“ If an auditorium is to be erected and maintained 
upon park property, it must be under the control of 
the park board since the board has been designated 
by law, and its members elected by popular choice, to 
manage and control that property.”



14

More recently, in the Shanklin case, the Court of Appeals 
of Kentucky reiterated this view in saying at page 47:

“ It seems to us that the proposed contracts would 
in effect give to the various clubs the right and 
power to exclude the general public from the use of a 
substantial part of the park for an indefinite although 
substantial period of time. This would be con­
sistent with its free public use. The Board would 
surrender its sole and exclusive control of the man­
agement of this part of the public property. Its 
dominion and administration would be less than abso­
lute. ’ ’

The decision here is at war with these state authorities. 
Since under Kentucky law, respondent can only act for and 
through the Department of Public Parks, its action in the 
instant case is bound by the requirements of the Fourteenth 
Amendment.

In holding to the contrary, the court below committed 
fundamental error. Determination as to whether respond­
ent’s action is private or state in character presents a 
substantial federal question which this Court should deter­
mine for itself. Nixon v. Condon, 286 U. S. 73, 88-89. For 
these reasons, we respectfully submit, this petition should 
be granted.

3. Decisions among state and lower federal courts with 
respect to the status of leasing arrangements between 
municipalities and private organizations are in conflict and 
should be resolved.

The central constitutional problem here presented is to 
distinguish private action from public action. The Four­
teenth Amendment has foreclosed, at least as a constitu­
tional issue, discriminatory action by public authority. 
The difficulty in thinking of any private rights independent



15

of recognition and protection by government indicates that 
“ public”  and “ private”  are not separate compartments but 
titles for opposing' ends of a continuous spectrum.18 This 
Court has already faced the problem of isolating unconsti­
tutional public discrimination in the primary cases, Terry v. 
Adams, — U. S, —, 21 U. S. L. Week 4346 (May 4, 1953); 
Smith v. Allwright, 321 U. S. 649; United, States v. Classic, 
313 U. S. 299; Nixon v. Condon, 286 U. S. 73; Grovey v. 
Townsend, 295 O’. 8. 45; Nixon v. Herndon, 263 O. S. 536; 
see Rice v. Elmore, 165 F. 2d 387 (C. A. 4th 1947), cert, 
denied 333 U. S. 875; the restrictive covenant cases, Shelley 
v. Kraemer, 334 O. S. 1; and the railway labor cases, Steele 
v. Louisville d Nashville R. R. Co., 323 U. S. 192; Tunstall 
v. Rrotherhood of Locomotive Fireman, 323 U. S. 210. The 
Fourth Circuit was also faced with the same problem in 
Kerr v. Enoch Pratt Free Library, 149 F. 2d 212 (C. A. 4th 
1945), cert, denied 326 U. 8. 721. In petitioner’s opinion, 
the court below in the instant case has misconceived the 
thrust of these decisions and thus ignores the pith of the 
matter here involved.

In the absence of a definitive decision by this Court, 
considerable confusion exists among lower federal and 
state appellate courts as to where to draw the line between 
“ public”  and “ private”  action where a public agency owns 
and a private organization operates a recreational facility 
pursuant to a leasing arrangement. Compare Lawrence 
v. Hancock, supra, with the instant case; Culver v. City 
of Warren, 84 Ohio App. 373, 83 N. E. 2d 82 (1948), and 
Kern v. City Commissioners, 151 Kans. 565, 100- P. 2d 
709 (1940) with Harris v. City of St. Louis, 233 Mo. App. 
911, 111 S. W. 2d 995 (1938) and Modern Amusements, Inc. 
v. New Orleans Public Service, 183 La. 848, 165 So. 137 
(1935).

18 Barnett, What is State Action Under the Fourteenth, Fifteenth, 
and Nineteenth Amendments of the Constitution?, 24 Ore L Rev 
227, 229-30 (1945).



16

Since doctrinally the discriminatory action has to he 
that of the state in order to bring the broad constitutional 
prohibition into play, the question which arises here is 
what circumstances are to be deemed sufficient to give rise 
to state action. In Lawrence v. Hancock, supra, there was 
involved a lease of a city owned and constructed swimming 
pool to a private corporation which paid no rent, received 
no profits and had to maintain the facility. The court 
held that the lessee’s exclusion of Negroes was unconsti­
tutional state action. The Kern and Culver cases, supra, 
also involving publicly-owned swimming pools, both held 
that the leasing arrangement did not divest the facilities 
of their public characteristics. In the former case, the 
lease established the hours when the pool was to be oper­
ated, set the admissions charges, and required the lessee 
to pay an annual rental of $1,000. In the latter case, the 
contract required the City to maintain the pool and the 
lessee to pay over 10% of the gross profits as rent.

Contrary holdings, however, resulted in the Harris and 
Modern Amusements cases, supra,. In the Harris case, a 
municipal auditorium and community center was leased to 
various private groups. Negroes, however, were restricted 
to a segregated section in the balcony by one private lessor 
who almost exclusively pre-empted the use of the audi­
torium for a series of musical and dramatic presentations. 
The City reserved the right of revocation, control, manage­
ment, and the power to establish charges and enforce all 
necessary rules for the operation of the facility. The court 
held that the City had a legal right to let the facility and 
permit the lessee to regulate the admission policy because 
the City, in such instance, acts not in its governmental 
capacity but rather in a quasi-private capacity free of 
constitutional limitations.

The Modern Amusements case developed out of a lease 
of a city-owned stadium to a private corporation under an 
agreement whereby the lessee covenanted not to operate it



17

in an objectionable or offensive manner. When the City- 
terminated the lease after the lessee permitted a game 
between Negro teams to be played on the premises and the 
lessee sought to recover for breach of the lease on the 
ground that the City’s action constituted unconstitutional 
racial discrimination, the court ruled that the agreement 
was a private contract to which the Fourteenth Amendment 
did not extend.

In the instant case, the decisions below were bottomed 
on the Harris case, supra. While cognizance was appar­
ently taken of the indicia of state action surrounding the 
construction of the Amphitheatre and reserved in the leas­
ing contracts, crucial weight was placed upon the fact that 
respondent is a private association which assumed all finan­
cial risks arising incidental to its use of the facility. Thus, 
the court held that respondent was not a governmental 
agency and could discriminate against petitioner without 
constitutional restriction.

In sum, the courts which have regarded leasing agree­
ments as mere private contracts entered into by city govern­
ments in their quasi-proprietary capacity have upheld the 
racial discriminatory policies and practices of private 
lessees. On the other hand, those courts which have stressed 
the public dedication of the leased premises, the vestiture 
of ownership, and the various indicia of governmental con­
trol retained in the agreement, have viewed lessees as gov­
ernmental instrumentalities managing the leased premises 
under a contract entered into by municipalities in their 
trusteeship capacity. Therefore, petitioner urges this Court 
to grant certiorari in order to resolve this conflict and set 
appropriate standards by which lower courts should be 
guided in this area.



18

4. The decision below is in conflict with principles estab­
lished in decisions of this Court, particularly Nixon v. 
Herndon.

While petitioner was refused admission to Iroquois 
Amphitheater by respondent because of his race and color 
(R. 19), respondent in fact did not have the power to freely 
determine its own admission policy. The Amphitheatre is 
located in a park which the Department of Parks and 
Recreation has set aside for the exclusive use of white 
persons (R. 44). The authority of the City to promulgate 
rules and regulations assigning certain parks exclusively 
to Negroes and others to white persons was sustained by 
the Court of Appeals of Kentucky in Warley v. Board of 
Park Commissioners, 233 Ky. 688, 26 8. W. 2d 554 (1930). 
It is admitted that Negroes were denied admission to parks 
set aside for the exclusive use of white citizens solely on 
account of their race (R. 43). To view respondent’s action, 
therefore, as the independent action of a private person, as 
did the court below, is to distort facts.

Petitioner was in truth denied admission to the Iroquois 
Amphitheatre pursuant to state regulations and in conform­
ity to state law. Under the City’s rules only white persons 
were entitled to use Iroquois Park. Thus petitioner, in 
going into the Park in his attempt to attend the perform­
ance at the Amphitheatre, actually violated the City’s regu­
lations. In the absence of state law, respondent had no 
authority or power to refuse admission to any law-abiding 
citizen who tendered the requisite admission fee. See Park 
Commissioners of Ashland v. ShamMin, supra; Board of 
Park Commissioners v. Speed, supra.

Indeed, it would seem clear that had respondent arbi­
trarily refused admission to a white person, it would have 
breached the agreement between it and the City, for the 
entire purpose of the agreement as expressed therein is to



19

bring about an increased use of Iroquois Park by making 
entertainment at the Amphitheatre available to the public 
at low cost (R. 75, 76, 77). An affirmative duty is thus placed 
on respondent to admit all white members of the public. 
And it is only by virtue of the City’s regulations and state 
court decisions upholding the City’s right to maintain segre­
gated parks that respondent had the authority to deny 
petitioner admission to the Amphitheatre. Of. Public Utili­
ties Commission of the District of Columbia v. Pollack, 343 
U. S. 451.

Since respondent here was in fact enforcing state law, 
it was the state’s regulations which prevented petitioner’s 
admission. To this extent respondent was acting for the 
state and under color of state law, and its action is there­
fore subject to the restraints of the Fourteenth Amendment 
under principles enunciated by this Court in Nixon v. 
Herndon, supra. See also Nash v. Air Terminal Services, 
supra.

The Fourteenth Amendment imposes a duty on the City 
to make public park property available to all persons with­
out discrimination based upon race and color. Since the 
Amphitheatre was a unique piece of public property, exclu­
sion therefrom of Negroes pursuant to state authority was 
clearly an unconstitutional act. See Missouri ex rel. Caines 
v. Canada, 305 U. S. 337; Sipuel v. Board of Regents, 332 
U. S. 631; Sweatt v. Painter, 339 U. S. 629; McLaurin v. 
Oklahoma State Regents, 339 U. S. 637.

It is clear that the Department of Public Parks could 
not present entertainment at the Amphitheatre under its 
exclusive auspices and deny petitioner’s admission. Nor, 
we submit, can the requirements of the 14th Amendment be 
avoided by leasing the site to respondent subject to City 
regulations limiting use of the park to white persons.

The decision of the court below in holding respondent’s 
action to be private action free of constitutional limitations



20

is in fatal conflict with principles settled by this Court in 
Nixon v. Herndon, swpra. We respectfully submit that 
this Court grant this petition in order that this conflict be 
resolved.

5. The decision in this case is in conflict with the prin­
ciples enunciated by this Court in Nixon v. Condon, Smith v. 
Allright and Terry v. Adams with respect to the delega­
tion of state authority.

Under applicable Kentucky statutes, the title to Iroquois 
Amphitheatre is held by the City, ‘ ‘ in strict and inviolable 
trust”  for public park purposes.19 The Department of 
Public Parks and Recreation is entrusted with the care, 
management, and custody of all park grounds used fox- 
park purposes.20 Board of Park Commissioners of Ash­
land v. Shanklin, supra; Board of Park Commissioners v. 
Speed, supra.

The record reveals that the City here looked upon the 
arrangement not as a lease of property held in its quasi­
proprietary capacity, cf. Harris v. City of St. Louis, supra, 
but as a method of carrying out its statutory duty to man­
age the City parks for the public good. The agreements 
between the City and respondent highlight this intention. 
The first agreement of lease, entered into just prior to the 
construction of the Amphitheatre, recites that the Park 
Board of the City of Louisville is of the opinion that “ the 
construction of an outdoor amphitheatre, suitable for the 
production of musical, dramatic, operatic, and other forms 
of exxteiTainment, out-of-doors, in Iroquois Park, would 
greatly increase the recreational facilities available to the

19 Ky. Rev. Stat., § 97.252 (1948). See Appendix B. Cf. Hague 
v. Congress oj Industrial Organization, 307 U. S. 496, 514.

20 Ky. Rev. Stat. § 97.290 (Baldwin’s certified ed., 1942) as incor­
porated into Ky. Rev. Stat., § 97.250 (1948). See Appendix B.



21

public in said Park, and the use and enjoyment of said 
Park by the Public * * * ”  (E. 62-63). All agreements 
require that admission fees and charges be reasonable so 
as to “ increase the use of Iroquois Park by making the 
entertainment presented at said Amphitheatre available 
to the public at low cost”  (R. 66, 75-76, App. B). These 
provisions thus manifest the intention of the City to trans­
fer to respondent the performance of a governmental func­
tion.

In Nixon v. Condon, Smith v. Allright and Terry v. 
Adams, this Court was faced with instances of delegation 
of a governmental function fundamentally similar to that 
in the instant case. In Nixon v. Condon, a state statute 
granted to the executive committee of each political party 
the power to prescribe the qualifications of its members. 
This Court held that the refusal of the election judges to 
permit petitioner to vote in a primary election was violative 
of his rights under the Fourteenth Amendment, because 
“  [delegates of the State’s power have discharged their 
official functions in such a way as to discriminate invidi­
ously between white citizens and black.”  at page 89. A 
strict principal-agency test in the determination of state 
action was there expressly rejected.

While the delegation of state authority in Smith v. All- 
right was not as clear-cut, this Court found such delega­
tion in “ the duties imposed upon [the party] by state 
statutes.”  More recently, in Terry v. Adams where the 
picture was even more blurred,21 again this Court found 
state action. Mr. Justice Clark, concurring, speaking for 
three other members of this Court, expressed the guiding 
principle succinctly in these words:

“ Accordingly, when a state structures its elec­
toral apparatus in a form which devolves upon a

21 See Rice v. Elmore, supra; Baskin v. Brown, 174 F 2d 391 
(C. A. 4th 1949).



2 2

political organization the uncontested choice of pub­
lic officials, that organization itself, in whatever dis­
guise, takes on those attributes of government which 
draw the Constitution’s safeguards into play.”  
— U. S. —, 21 U. S. L. Week at 4351.

The principal-agency test for determining state action 
was again repudiated, Mr. Justice Black stating:

“ It is immaterial that the state does not control 
that part of this elective process which it leaves for 
the Jaybirds to manage.”  —• U. S. —, 21 U. S. L. 
Week at 4349.

The decisions in the above cases are of course limited 
to the field of primary elections. But the general principles 
involved cannot be so narrowly restricted, for the philoso­
phy of state action upon which these decisions rest is an 
all-pervasive one. If the state allows the performance of 
a governmental function to devolve upon a private organi­
zation, that organization assumes those attributes of gov­
ernment which bring the constitutional safeguards into 
play.

Indeed, state and lower federal courts have almost 
invariably held that the principles underlying Nixon v. 
Condon and Smith v. Allright are ones of general validity 
and thus applicable to other areas of governmental activity. 
Kerr v. Enoch Pratt Free Library, supra (library); Nash 
v, Air Terminal Services, supra (restaurant); Lawrence v. 
Hancock, supra; Kernel. City Commissioners, supra; Culver 
v. City of Warren, supra (swimming pool). See Dorsey v. 
Stuyvescmt Town Corp., 299 N. Y. 512, 87 N. E. 2d 541 
(1949), cert, denied 339 U. S. 981.22 But cf. Harris v. City

22 The New York Court of Appeals there stated, at page 532:
“ In a more recent series of cases, the federal courts have held 
private groups subject to the constitutional restraints when 
they perform functions of a governmental character in matters 
of great public interest.”



23

of St. Louis, supra; Modern Amusements Inc. v. New 
Orleans Public Service, supra.

In the Kerr case, the Court of Appeals for the Fourth 
Circuit, expressly refusing* to be guided by technical prin­
ciples of principal and agent, gave forceful recognition to 
the proposition that the principles of Nixon v. Condon and 
Smith v. Allright are applicable to any grant of state 
power to a private organization for the performance of a 
state function.

While the Nash case involves federal action rather than 
state action, it is particularly illuminating. The defendant 
there operated restaurants at Washington National Airport 
as a concessionaire of the United States Government. In 
holding that defendant was under a constitutional duty to 
serve all persons without discrimination on account of race 
or color, the court based its decision solely on the fact that 
defendant had been granted authority to perform a govern­
mental function. The heart of the court’s decision is stated 
in these words at page 549:

“ In effect, the concessionaire here is conducting 
the facility in the place and stead of the Federal 
government. To conclude otherwise would overlook 
not only the status and purpose of the airport, but 
also the purpose of the concession. It is to provide 
food and refreshment to the public in travel and to 
complement the facilities offered by the United States 
Government in support of air transportation # * * 
we * * * hold its restaurants are too close, in origin 
and purpose, to the functions of the public govern­
ment to allow them the right to refuse service with­
out good cause.”

The decision in the instant case departs from the gener­
ally prevailing view. The basic conflict between the deci­
sion below and the above cases makes this case one peeu-



24

liarly appropriate for review by this Court. In deciding 
that the acts of respondent did not constitute state action, 
the court below, in effect, reverted to traditional principles 
of agency law as the single standard—a test rejected by 
this Court in the primary election cases and generally 
abandoned by other courts in other areas of governmental 
activity.

The factual differences between the primary election 
cases and the instant one should not be allowed to blur the 
fundamental oneness of the problems involved. Of course, 
there is hardly any duty on a municipality to acquire land 
for park purposes or to invest public funds in the construc­
tion of a public amphitheatre thereon. Nevertheless, once 
the City of Louisville here acquired Iroquois Park and con­
structed the Amphitheatre, there developed upon the Direc­
tor of Parks and Recreation the statutory duty to manage 
the Amphitheatre for public park purposes. Thus, the 
delegation of governmental authority here is of the same 
nature as that in Nixon v. Condon, Smith v. AUright, and 
Terry v. Adams.

It is respectfully submitted that this Court grant this 
petition in order to resolve the conflict between the decision 
below and the principles enunciated by this Court in the 
primary election cases.

6. The decision of the Court below conflicts with well- 
settled doctrine of this Court that rights guaranteed under 
the 14th Amendment are personal and present.

The district court placed considerable emphasis upon 
the fact that neither petitioner nor any organization to 
which he belonged had sought to secure possession of the 
Amphitheatre for the purpose of providing entertainment 
procured and paid for by them without expense to the City. 
What the court was in effect stating is that if a sufficient 
number of Negroes were interested in supporting the pro-



25

duction of musical entertainment, then the City would be 
obliged to allow them to use the Amphitheatre when it 
wasn’t being used by respondent. Thus it conditions peti­
tioners’ right to enjoy the recreational benefits available 
to white persons at the Iriquois Amphitheatre on what may 
or may not be done by other members of petitioner’s racial 
group.

This Court has often reiterated that rights secured under 
the 14th Amendment are personal and present and can­
not be made dependent on what course of action other per­
sons may take. See Sweatt v. Painter, 339, U. S. 629; 
Shelley v. Kraemer, 334 U. S. 1; McCabe v. Atchison, 
T .S  S. F. Ry. Co., 235 U. S. 151. In basing its decision on 
the fact that there had been no showing that any Negro 
group or organization had applied for permission to use 
the Amphitheatre and had been refused, the court below 
applied principles in basic conflict with a well-settled con­
stitutional doctrine of this Court and committed fatal error.

CONCLUSION

WHEREFORE, for the reasons hereinabove stated, 
it is respectfully submitted that this petition for writ of 
certiorari should be granted.

Respectfully submitted,

R obebt L. Cabter,
T hus,good Marshall, 
Benjamin F. Shobe,

Counsel for Petitioner.
E lwood H. Chisolm,
David E. P insky,

of Counsel.

Dated: May 20, 1953.



26

APPENDIX A

Agreement

This AGREEMENT made and entered into this 5th day 
of February, 1952, by and between the Department of Parks 
and Recreation of the City of Louisville, Kentucky by its 
Director, T. Byrne Morgan (hereinafter called the Depart­
ment), and Louisville Park Theatrical Association (herein­
after called The Association), a corporation having no 
capital stock and from whose operations no private pecu­
niary profit is derived,

Witnesseth That

W hereas, the purpose of the Association is to present 
musical and theatrical entertainment in the City of Louis­
ville at low cost and,

W hereas, The Department owns a structure, located in 
Iroquois Park, known as Iroquois Amphitheatre which has 
facilities suitable for use in presenting musical and theatri­
cal entertainment, and

W hereas, The Association is desirous of using such 
facilities for the presentation of its musical and theatrical 
entertainments and The Department is desirous of having 
The Association and other similar organizations use the 
facilities of Iroquois Amphitheatre,

Now, T herefore, in consideration of the premises and 
of the covenants and agreements hereinafter set out, the 
said parties do hereby covenant and agree as follows:

1. The Department in consideration of the agreements 
and covenants of the Association as hereinafter set out, 
does hereby give and grant to the Association the exclusive



27

right and privilege to use said Iroquois Amphitheatre, 
together with the equipment, buildings and land appur­
tenant thereto, on such dates between June 14, 1952, and 
August 23, 1952, as The Association may, by written notice 
to the Department, designate; and agrees that it will not 
lease, or give to any other person, firm or corporation the 
right to use said Amphitheatre during* said period, without 
having first obtained the written consent of The Association 
thereto.

2. The Association shall have the right to use the 
Amphitheatre on any, or all, of said dates, for the purposes 
of rehearsing, and/or presenting, such musical, dramatic, 
operatic, and other forms of entertainment, both amateur 
and professional, as it may select; for the sale and service 
on such occasions of such food, soft drinks, tobacco, cigars, 
cigarettes, candy, programs, musical scores, etc., as are 
customarily sold or offered for sale in similar places of 
public entertainment and for the rendition of such other 
services as are customarily rendered in such places, and 
for no other purpose.

The Association shall have the right to produce the 
entertainment, sell and serve the items, and render the 
services aforesaid, itself, or to contract with any other 
person, firm, or corporation, for the production of said 
entertainments, the sale and service of said items, and the 
rendition of said services or any of them.

3. The Association, or any person, firm or corporation 
with whom The Association has contracted for the pro­
duction of any entertainment at said Amphitheatre, shall 
have the right to charge any person seeking to attend said 
entertainment such admission fee as may be fixed by the 
Board of Directors of the Association. Likewise, The 
Association, or any person, firm or corporation with whom 
it has contracted to furnish food, soft drinks, programs,



28

musical scores, etc., or to render said services as are cus­
tomarily rendered in connection with - such entertainment, 
shall have the right to charge such prices as may he 
approved by the Board of Directors of The Association. 
Provided, however, that such admission fees and charges 
shall be reasonable and consistent with the desire of both 
parties thereto to increase the use of Iroquois Amphi­
theatre by making the entertainment presented at said 
Amphitheatre available at low cost.

4. The Association agrees that it will not erect, or main­
tain, any signs or advertisements, in, upon, or about the 
Amphitheatre, except only such signs or advertisements, 
as may with the approval of the Department be placed 
thereon to advertise attractions to be presented at said 
Amphitheatre, and as are contained in programs distrib­
uted at any performance given in said Amphitheatre, and 
agrees that the Department may remove, or obliterate, any 
sign, or advertisement, erected or maintained by the Asso­
ciation in violation of the Agreement.

5. The Department agrees that:
(a) It will turn over said Amphitheatre to The 

Association, on June 14, 1952, in good order and repair 
and in suitable condition for use by The Association;

(b) Furnish all water necessary to enable The Asso­
ciation, or any person, firm or corporation with whom The 
Association may have contracted, to produce the entertain­
ment contemplated by this Agreement. The Association 
is to pay all other utility bills during the period of its use 
(June 14, 1952 to and including August 23, 1952) of said 
Amphitheatre.

6. The Association agrees to pay to the Department 
on or before August 23, 1952, the sum of One Thousand 
($1,000.00) Dollars for the rights and privileges granted



29

to it by this Agreement in connection with the use of said 
Amphitheatre, to re-imburse the Department for additional 
expenses occasioned by this use.

7. The Association agrees that during the period of its 
use of said Amphitheatre it will keep said premises in good 
order and repair and at the expiration of its term of use 
will return said premises to the Department in as good con­
dition as reasonable and careful use will permit,

8. The Association shall have the exclusive right to 
select, and agrees to assume full responsibility for employ­
ing, fixing and the compensation of, and paying the salaries 
and wages of, all artists, actors, musicians, ticket takers, 
ushers, stage hands, and persons other than police, employed 
in connection with the presentation of any entertainment 
produced by, or under the auspices of, The Association at 
said Amphitheatre.

9. The Association agrees that The Department shall 
at all times have the right to make and enforce such reason­
able rules and regulations as it deems necessary for the 
preservation of said Amphitheatre and the equipment and 
appurtenances thereto belonging, and for the preservation 
of good order therein, and shall have the right to prohibit 
the production at said Amphitheatre of any entertainment 
which is, in the opinion of The Department or any other 
department, indecent or immoral or calculated to create or 
incite racial or religious antagonism or disturbance of the 
public peace.

10. It is further mutually understood and agreed by 
and between the parties hereto that The Association shall 
have the right, at its option, to renew this Agreement on 
the same terms and conditions and for the same or similar 
period of time for the use of said Amphitheatre for the



30

Summer season of 1953. The Association must notify, in 
writing, The Department of its election to renew the said 
Agreement on or before October 1, 1952.

I n Testimony W hereof, the parties have caused their 
corporate names to be subscribed and their corporate seals 
to be affixed hereto, The Department of Parks and Recrea­
tion, by its Director, and the Louisville Park Theatrical 
Association by its President, all at Louisville, Kentucky, 
the day and year first above mentioned.

T he City of L ouisville

By T. Byrne Morgan
Director of Parks and Recreation

L ouisville P ark T heatrical A ssociation

By: G. E. Gans

(Seal of City of Louisville)

Approved
Charles P. Farnsley 
Mayor

I, Wm. D. Meyers, Director of Finance of the City of 
Louisville, Kentucky, and by virtue of Kentucky Revised 
Statutes Section 91.060, custodian of ordinances and records 
of the City of Louisville do hereby certify that the fore­
going is a full and true copy of an agreement of the City 
of Louisville entered into the 5th day of February, 1952.

Wm. D. Myers



31

APPENDIX B 

Statutes of Kentucky

Applicable to Parks In Cities of the First-Class

K entucky Revised Statutes (1948)
97.250 [2840; 2841; 2844; 2847] Powers of department of 

public parks and recreation in first-class cities; employes; 
director of parks and recreation. (1) The department of 
public parks and recreation of any city of the first class 
shall, from and after the effective date of KRS 97.250 to 
97.258, be vested with and exercise all of the powers and 
perform all of the functions and duties of any then existing 
board of park commissioners of such city, except as may be 
otherwise provided by law or by KRS 97.250 to 97.258, 
From and after said date any such board of park commis­
sioners of -such city shall cease to exist. The agents and 
employes of said department of public parks and recrea­
tion, except as provided herein, shall be employed and 
governed in accordance with the merit system, as provided 
by any law or laws, or amendments thereof, and any rules 
and regulations issued pursuant thereto, authorizing, cre­
ating and governing any city board or commission empow­
ered to administer and enforce civil service laws, rules and 
regulations in and for such city.

(2) The department of public parks and recreation of 
any city of the first class shall be under the supervision and 
direction of a director to be designated director of parks 
and recreation, and shall have exclusive direction, super­
vision and control of all park property, as herein defined, 
except as otherwise provided by law or by KRS 97.250 to 
97.258 or by ordinance of the legislative body of said city; 
and shall provide for and supervise all public amusements 
and recreation in parks, playgrounds, and community cen-



32

ters. The director of said department shall have power to 
adopt rales and regulations for the reasonable and proper 
use, management and control of public park, playground 
and community center property, and may organize the said 
department for administrative purposes into such divisions 
as may be necessary for the proper conduct of the business 
of said department, and appoint heads or chiefs of such 
divisions, who, under the supervision and control of said 
director, shall have the direction of such divisions. (1942, 
c. 34, § 2) [Emphasis supplied.]

97.251 Definition of “ park property.” The term “ park 
property”  includes all parks, squares and areas of land 
owned or used by said city for park purposes, and all build­
ings, structures, improvements, seats, benches, fountains, 
walks, drives, roads, trees, plants, herbage, flowers, and 
other things thereon, and inclosures of the same; all shade 
trees on streets or thoroughfares throughout park property 
and said city; all resting places, watering stations, play­
grounds, parade grounds, community centers, or the like; 
all connecting parkways and roads or drives between parks, 
and all avenues, roads, ways, drives, walks, with all trees, 
shrubbery, vines, flowers and ornaments of any description 
thereon, acquired for park purposes; and all birds, animals 
or curiosities, or objects of interest or instruction placed in 
or on any of such inclosures, ways, parkways, roads or 
places; and said term shall be liberally construed. (1942, 
c. 34, § 2)

97.252 Title to and control of park property; exemption 
from taxation; use for streets; contracts for use of aviation 
fields; control of public ways acquired for park purposes.
(1) The title to all property with all improvements and 
equipment acquired for park, airport or aviation field pur­
poses, owned by the board of park commissioners of a city 
of the first class at the time KRS 97.250 to 97.258 become 
effective, is hereby transferred to the city subject to any



33

existing leases thereof, and shall be held by the city in strict 
and inviolable trust for such public purposes, free from all 
taxation, imposts or assessments by state, county, district, 
municipal, or other governmental subdivision; provided, 
however, that the city may use any portion of such property 
as may be necessary and proper for the construction, exten­
sion, or widening of streets, boulevards, thoroughfares or 
other public ways, and may enter into contracts or agree­
ments, with reference to properties acquired for airport or 
aviation field purposes, for the use of such field and airport 
for aviation purposes, with the United States government 
or any agency thereof, or any state government or any 
agency thereof, or any board of aviation established under 
any Act of the General Assembly of this Commonwealth, 
or of any other commonwealth or state, or any individual, 
firm or corporation; provided, however, it shall at no time 
and in no way enter into any contract or agreement that 
prevents its carrying out the main purpose of the establish­
ment and maintenance of a public municipal aviation field 
and airport, for the general use of the citizens of said city 
as a park purpose. [Emphasis supplied.]

(2) Such park property as consists of all connecting 
parkways and roads or drives between public parks, and all 
avenues, roads, ways, drives and walks outside of the 
boundaries of public parks, which were or are acquired for 
park purposes, from and after the effective date of KRS 
97.250 to 97.258, shall be under the direction, control, main­
tenance and management of the department of public works 
of said city. (1942, c. 34, § 2)



34

Pertinent Prior Statutes

K entucky R evised Statutes 
(1942 Baldwin’s Certified Edition)

97.270 Powers and duties of board of park commissioners 
in first class cities. (1) The board shall have the 
care, management and custody of all parks and 
grounds used for park purposes. . . .

#  *  #

Cabroll’s K entucky Statutes A nnotated 
(Bald. Rev. 1936 ed.)

§ 2840. Board of park commissioners; controlled by.—The
public parks in a city of the first class shall be held, 
managed and controlled by a board under the name 
and style of the board of park commissioners.

-y. -y. -V.vr w  vr

§ 2848. Powers and duties of commissioners.—The board,
constituted as aforesaid, shall have the care, man­
agement and custody of all parks and grounds used 
for park purposes. . . .

*  *  #