Cooke v. North Carolina Statement as to Jurisdiction
Public Court Documents
October 20, 1958
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Brief Collection, LDF Court Filings. Cooke v. North Carolina Statement as to Jurisdiction, 1958. 63c26636-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e3266f77-5166-420c-8795-da61fe02cd55/cooke-v-north-carolina-statement-as-to-jurisdiction. Accessed October 08, 2025.
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IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM , 1958
No. _____________
PHILLIP COOKE, LEON W OLFE, GEORGE S IM KIN S, JR.,
JOSEPH STURD IVEN T, SAMUEL MURRAY,
and ELIJAH H. HERRING, Appellants
vs.
STA TE OF NORTH CAROLINA
Appeal from the Supreme Court of the State of North Carolina
STATEMENT AS TO JURISDICTION
Counsel of Record for Appellants:
J. Alston Atkins
c/o Kennedy and Kennedy
13 East Third Street
Winston-Salem, N. C.
Other Counsel for Appellants:
Harold L. Kennedy and
Annie Brown Kennedy
13 East Third Street
Winston-Salem, N. C.
C. O. Pearson
203’/2 E. Chapel Hill Street
Durham, N. C.
Carter W . Wesley
P. O. Box 3086
Houston 1, Texas
James M. Nabrit, Jr.
Washington, D. C.
INDEX
Pages
Opinions in Court below:
Cited .........-............... -............................. -........—........—- 1
Reproduced ...................................................................... 42-53
55-59
Jurisdictional Grounds:
Nature of Proceeding ................. — ...... -........... . 2
Judgment Appealed from:
Date of Entry .............. ........-...................... -.......... 2
Reproduced ...............................-..........—............. 54
Petition for Rehearing not Permitted ........... .......... . 2
Notice of Appeal:
Date Filed .......................... ............. ...................... 2
Reproduced .................... .................................-..... 60-66
Statute Conferring Jurisdiction — ............ - ................ 2
Cases Sustaining Jurisdiction ............. ......... ............ - 2-4
Questions Presented ............. ............................... -................ 4-8
Statement of the Case:
Facts Material to Questions Presented .................. . 8-16
Raising of Federal Questions:
Motion to Quash _____ _____ ___________ _____ 16-19
Excluding Federal Court Records .................... 19-20
Motion to Set Aside Verdict................................ 20-28
Substantiality of Federal Questions:
Generally ............. ........... ....................................... 28-30
Supremacy Clause and Judicial Notice ........ 30-32
Federal Records Reproduced
for Judicial Notice ..................... .........— 67-79
Pleadings Setting up Federal R ig hts.................. 33-34
Discrimination against Federal Rights ............. 34-35
Due Process and Equal Protection
aside from Racial Exclusion ....................... 35-36
Changing Meaning of Criminal Statute ......... 37
Evidence of Racial Discrimination --------- ----- 37-38
Double Jeopardy under 14th Amendment .... 38-39
i
Reasons for Plenary Consideration ...... .............................. 39-40
Conclusion ..... ................ ................ ................. ................40-41
Tables of Cases Cited
Aaron v Cooper and Cooper v Aaron,_____US_____
(Decided September 29, 1958) ......................... . 3, 32
Aycock v Richardson, 247 NC 234, 100 SE 2d 379 .. 3, 35
Brock v North Carolina, 344 US 424, 429, 97 L ed
456, 460, 73 S Ct 349 ......................................... 3, 39
Brown v Board of Education, 344 US 1, 97 L ed 3, 73
S Ct 1 ...................................... ................ .......... ......... 3, 31-32
City of Greensboro v Simkins, 246 Fed 2d 425 ......... 4
Eubanks v Louisiana, 356 US 584, 2 L ed 2d 991,
994, 78 S Ct 970 ...... ................ ............................ 3, 37
Franklin National Bank v New York, 347 US 373, 98
L ed 767, 74 S Ct 550 ............................................... 3, 30
Hoag v New Jersey, 356 US 464, 2 L ed 2d 913,
917, 78 S Ct 829 ........................... ............................. 3, 38
Lambert v California, 355 US 225, 2 L ed 2d 228,
231, 78 S Ct 240 ................................................. 3, 37
L illy v Grand Trunk Western Ry Co., 317 US 481,
488, 87 L ed 411, 417, 63 S Ct 347 .............. ).. 3, 31
Marsh v Alabama, 326 US 501, 509, 90 L ed 265,
270, 66 S Ct 276, 280 .......................................... 2, 28-29
Mason v Commissioners of Moore, 229 NC 626, 627,
51 SE 2d 6 ................ ................................................. 3, 35
NAACP v Alabama, 357 US 449, 2 L ed 2d 1488,
1495, 78 S Ct 1163 ................. ............................. 3, 35
Niemotko v Maryland, 340 US 268, 271, 95 L ed
267, 270, 71 S Ct 325, 327 ................................ 2, 30
Pennsylvania v Board of Directors etc., 353 US 230,
1 L ed 2d 792, 77 S Ct 806 ................................ 4, 41
Public Utilities Commission of California v United
States, 355 US 534, 2 L ed 2d 470, 478, 78
S Ct 446 .................. .......................... .......... .............. 3, 30
Railway Employees Department etc. v Hanson, 351
US 225, 232, 100 Led 1112, 1130, 76 S Ct 714 2, 30
Simkins v City of Greensboro, 149 Fed Supp 562 .... 4, 10-16
Pages
ii
Pages
Smith v O'Grady, Warden, 312 US 329, 331, 85
L ed 859, 61 S Ct 572 .......................................... 3, 31
State v Clyburn, 247 NC 455, 458, 101 SE 2d 295 3, 6, 37
State v Cooke et al„ 248 NC 485, 103 SE 2d 846 .. 1, 42-53
State v Cooke et al„ 246 NC 518, 98 SE 2d 885 .... 1, 55-60
State v Council, 129 NC 371 (511), 39 SE 814 ____ 2
State v Jones, 69 NC 14 (16) ....... ............................. 2
State v Perry, 248 NC 334, 103 SE 2d 404 ............. 3, 6, 34
Staub v City of Baxley, 355 US 313, 2 L ed 2d 302,
309, 78 S Ct 277 ................................................. . 3, 33
Sweezy v New Hampshire, 354 US 234, 1 L ed 2d
1311, 77 S Ct 1203 .........- .................................- 3, 41
Tomkins v Missouri, 323 US 485, 89 L ed 407, 65
S Ct 370 ....... ............................. ................................. 3, 33
W illiam s v Georgia, 349 US 375, 99 L ed 1161,
75 S Ct 814 ................................ ............................ 3, 34
Rules of Court
Rules 13 and 15 of Revised Rules of Supreme
Court of United States ................................... 1
Constitution of North Carolina
Article IV, Sec. 8 ................................ ........................... 35
Constitution of United States
Article VI, Cl. 2 ......................... .............................. 4, 5, 20,
30-32
Fourteenth Amendment ................ ................ .............. 4, 5, 7, 8,
17, 19, 21,
22, 25, 27,
29, 30, 35,
37, 38
Federal Statutes
28 USC Sec. 1257 (2) ............................................... 2, 41
28 USC Sec. 2103 ................................................... 41
General Statutes of North Carolina (1953)
Sec. 14-134 ................................................................ 2, 4, 6, 8,
17, 27,
29, 30, 37
IN THE SUPREME COURT OF THE UN ITED STA TES
October Term, 1958
No__________________
Phillip Cooke, Leon Wolfe, George Simkins, Jr,,
Joseph Sturdivent, Samuel Murray, and Elijah H. Herring,
Appellants
v
State of North Carolina
Appeal from the Supreme Court of the State of North Carolina
STATEMENT AS TO JURISDICTION
1. The above named appellants respectfully file this
Statement as to Jurisdiction pursuant to Rule 13 and Rule 15
of the Revised Rules of the Supreme Court of the United States.
(a) O PINIO NS IN THE COURT BELOW
The Opinion of the Supreme Court of North Carolina
delivered upon rendering the judgment from which this appeal
is taken is reported in State v Cooke et al., 248 NC 485,
103 SE 2d 846. Said Opinion is attached hereto as
Appendix "A " and said Judgment is hereto attached as Ap
pendix "B " . The Opinion of the Supreme Court of North
Carolina upon a former trial upon another set of warrants
charging the identical trespass upon Gillespie Park Municipal
Golf Course is reported in State v Cooke et al., 246 NC 518,
98 SE 2d 885. That Opinion is hereto attached as Appendix
"C".
1
(b) G ROUNDS ON WHICH JURISDICTION IS INVOKED
(i) Th is is a criminal prosecution commenced in the Muni
cipal-County Court of Greensboro, Guilford County, North
Carolina, alleging a trespass by the above named appellants
upon the Municipal Gillespie Park Golf Course. The warrants
charging simple trespass were issued under Section 14-134
of the General Statutes of North Carolina (1953).
(ii) The Judgment of the Supreme Court of North Carolina
appealed from in this case was entered and dated as of June
4, 1958, at the same time of the filing of the Opinion men
tioned as Appendix "A " above. Said Judgment affirmed and
found no error in the judgment of conviction and sentence
by the Superior Court of Guilford County, North Carolina,
entered on February 10, 1958, upon a trial de novo on appeal
from a judgment of conviction and sentence in the Municipal-
County Court of Greensboro. The sentence appealed from
is 15 days in jail for each of the above named appellants.
No Petition for Rehearing in a criminal case is permitted
in the Supreme Court of North Carolina. State v Jones, 69
NC 14 (16), State v Council, 129 NC 371 (511), 39 SE 814.
The Notice of Appeal to the Supreme Court of the United
States was filed in the Supreme Court of North Carolina on
August 27, 1958, and a copy is hereto attached as Appendix
"D ".
(iii) The statutory provision believed to confer jurisdiction
of this appeal on the Supreme Court of the United States is
28 USC 1257 (2).
(iv) It is believed by appellants that the following cases
sustain the jurisdiction of this Court in this case:
Marsh v Alabama, 326 US 501, 509. 90 L ed 265,
270, 66 S Ct 276, 280.
Niemotko v Maryland, 340 US 268, 271, 95 L ed 267
270, 71 S Ct 325, 327.
Railway Employees' Department etc. v Hanson, 351 US
225, 232, 100 L ed 1112, 1130, 76 S Ct 714.
2
Franklin National Bank v New York, 347 US 373, 98
L ed 767, 74 S Ct 550.
Public Utilities Commission of California v United
States, 355 US 534, 2 L ed 2d 470, 478, 78 S Ct
446.
Smith v O'Grady, Warden, 312 US 329, 331, 85 L ed
859, 61 S Ct 572.
L illy v Grand Trunk Western Ry Co., 317 US 481, 488,
87 L ed 411, 417, 63 S Ct 347.
Brown v Board of Education, 344 US 1, 97 L ed 3,
73 S Ct 1.
Aaron v Cooper and Cooper v Aaron,_____US______
(Decided September 29, 1958)
Tomkins v Missouri, 323 US 485, 89 L ed 407, 65 S Ct
370.
Staub v. City of Baxley, 355 US 313, 2 L ed 2d 302,
309, 78 S Ct 277.
State v Perry, 248 NC 334, 103 SE 2d 404.
W illiam s v Georgia, 349 US 375, 99 L ed 1161 ,75 S Ct
814.
Aycock v Richardson, 247 NC 234, 100 SE 2d 379.
Mason v Commissioners of Moore, 229 NC 626, 627,
51 SE 2d 6.
NAACP v Alabama, 357 US 449, 2 L ed 2d 1488,
1495, 78 S Ct 1163.
State v Clyburn, 247 NC 455, 458, 101 SE 2d 295.
Lambert v California, 355 US 225, 2 L ed 2d 228, 231,
78 S Ct 240.
Eubanks v Louisiana, 356 US 584, 2 L ed 2d 991, 994,
78 S Ct 970.
Hoag v New Jersey, 356 US 464, 2 L ed 2d 913, 917,
78 S Ct 829.
Brock v North Carolina, 344 US 424, 429, 97 L ed 456,
460, 73 S Ct 349.
Sweezy v New Hampshire, 354 US 234, 1 L ed 2d
1311, 77 S Ct 1203.
3
Pennsylvania v Board of Directors etc., 353 US 230
1 L ed 2d 792, 77 S Ct 806.
(v) The validity under the Constitution of the United States
of Section 14-134 of the General Statutes of North Carolina
(1953), as construed and applied by the State Courts in this
case, is drawn in question upon this appeal, and said Section
14-134, which was read to the jury by the Tria l Judge (Page
78 of printed Record below*), reads as follows:
" If any person, after being forbidden to do so, shall
go or enter upon the lands of another without a license
therefor, he shall be guilty of a misdemeanor and on
conviction shall be fined not exceeding fifty dollars or
imprisoned not more than thirty days."
The acts of appellants held by the State Courts to be a crime
under this statute were held by Declaratory Judgment of
the United States District Court for the Middle District of
North Carolina, affirmed by the Court of Appeals for the
Fourth Circuit, to be the "constitutional rights" of the appel
lants.
(c) Q UESTIO N S PRESENTED BY TH IS APPEAL
The following questions are presented by this Appeal:
1. Is Section 14-134 of the General Statutes of
North Carolina (1953), as construed and applied by
the State Courts in this case, unconstitutional under the
Constitution of the United States, including the Su
premacy Clause (Art. 6, Cl. 2), and also including the
Fourteenth Amendment as interpreted by the United
States District Court for the Middle District of North
Carolina in George Simkins et al. v City of Greensboro
et al., 149 Fed. Supp. 562, and by the Court of Ap
peals for the Fourth Circuit affirming in City of Greens
boro et al. v. George Simkins et al. 246 Fed. 2d 425?
2. Could the State agencies in this case, namely,
City of Greensboro, Greensboro City Board of Educa
tion, and Gillespie Park Golf Club, Inc., consistent
with the Equal Protection Clause of the Fourteenth
*See note on page 41.
Amendment of the Constitution of the United States,
promulgate written regulations converting the public
municipal Gillespie Park Golf Course, originally con
structed with the Federal Government providing 65 per
cent of the cost, into a private-club membership-only
golf course, excluding all citizens who did not meet the
membership rules? and do the membership rules as set
out in the record thus limiting the use and enjoyment of
this public municipal golf course, having been promul
gated by State agencies, violate the Equal Protection
Clause of the Fourteenth Amendment? and, said State
agencies having adopted a written rule making eligible
to play on said public municipal golf course "members
in good standing of other golf clubs," could the State
agencies operating the golf course, consistent with the
Equal Protection Clause of the Fourteenth Amendment,
arb itrarily in practice limit use and enjoyment of the
golf course to those "members in good standing of
other golf clubs" whose golf clubs were members of the
Carolina Golf Association?
3. Was it the duty of the State Courts in this case
to accept as true the allegations asserting appellants'
Federal rights in their motion to quash the warrants
and in their motion to set aside the verdict and for
judgment notwithstanding the verdict, in view of the
fact that the State did not answer to deny or con
trovert any of said allegations?
4. In its opinion in this case the Supreme Court of
North Carolina having said, with reference to the Fed
eral case cited in Question No. 1 above, that "O ur
knowledge of the facts in that case is limited to what
appears in the published opinion," and having also
said that " It would appear from the opinion that the
entry involved in this case was one incident on which
plaintiffs there relied to support their assertion of un
lawful discrimination," was it the duty of the State
Courts in this case, under the Supremacy Clause (Art.
6, Cl. 2) of the Constitution of the United States, to
consider and give effect to all of the facts set forth in
5
said opinion of the Federal Court, and having taken
judicial notice of said opinion, was it also the duty of
the State Courts under the Supremacy Clause to take
judicial notice of the Federal Court's Findings of Fact,
Conclusions of Law, and Declaratory Judgment, in
order to determine the extent to which the acts and
conduct held by the State Courts to be a crime in this
case were held by the Federal Courts to be protected
by the Fourteenth Amendment to the Constitution of
the United States?
5. The Supreme Court of North Carolina having
held on May 7, 1958 in State v. Perry, 248 N. C. 334,
that the unconstitutionality of a jury panel under the
Constitution of the United States could be shown by
evidence upon a motion to quash the indictment, was it
a discrimination against the Federal rights asserted by
appellants in this case for the State Courts to deny the
request made by the appellants in their motion to
quash the warrants and again in their motion to set
aside the verdict, for an opportunity to present the
record in the Federal case cited in Question No. 1
above upon the hearing of said motions?
6 . Was it a d iscrimination against and an infringe
ment upon the Federal rights asserted by appellants in
this case for the State Courts to refuse to give effect to
Finding of Fact No. 30 and Finding of Fact No. 33 in
the Federal case cited in Question No. 1 above, both
of which Findings of Fact were quoted verbatim in
appellants motion to set aside the verdict, and the
State not having answered to deny or controvert the
allegations of said motion in any way?
7. The Supreme Court of North Carolina having
held consistently prior to this case that said Section
14-134 of the General Statutes of North Carolina did
not apply to public lands but only to "the possession
or right of possession of real estate privately held,"
(State v. Clyburn, 247 N. C. 455), was it a discrimina
tion against the Federal rights asserted by appellants
6
for the North Carolina Supreme Court to depart from
this rule and hold that the statute did apply to the al
leged trespass upon the public municipal golf course
involved in this case?
8. The Supreme Court of North Carolina having
approved in its opinion in this case the charge to the
jury that " i f a party entering upon the land has a legal
right to do so, of course he may not be convicted of a
trespass," and the Declaratory Judgment in the Federal
case cited in Question No. 1 above having declared
that the interference with and causing appellants to be
arrested for playing on the golf course "was done
solely because of the race and color of the" appellants
"and constitutes a denial of their constitutional rights,"
(said Declaratory Judgment being quoted verbatim in
appellants' motion to set aside the verdict, and the State
having not answered to deny or controvert said mo
tion), was it a violation of the duty of the State Courts
under the Supremacy Clause and of the rights of ap
pellants under the Fourteenth Amendment of the Con
stitution of the United States for the Supreme Court
of North Carolina to hold in this case that the State
Courts were not concluded by the Federal Court's
determination of the "constitutional rights" of the ap
pellants, and to submit to the State's jury the determi
nation of this Federal "legal right" of appellants under
the Constitution of the United States to play on this
public municipal golf course?
9. The Supreme Court of North Carolina having
gone outside the record before it to find in its opinion
in this case the true fact concerning the Federal case
cited in Question No. 1 above that "defendants had
the record in that case identified," did the Equal Pro
tection Clause of the Fourteenth Amendment require
the Court to note the further true fact that the records
in said Federal case were in fact identified as "De
fendants' Exhibits 6 and 7 ," in order that the Court
might see the further true fact that said Exhibits 6 and
7 were in fact offered in evidence and their admission
7
refused by the Tria l Judge, as shown on Page 77 of
the printed record before the Supreme Court of North
Carolina?
10. Appellants having been tried twice upon two
separate and different sets of warrants for the same
alleged offense in the Municipal-County Court of
Greensboro, Guilford County, North Carolina, and the
first set of warrants and the conviction and sentence
thereunder being still outstanding and undisposed of
at the time of the issuance of the second set of war
rants and the trial and conviction thereunder, does the
second tria l and conviction and sentence amount to
the kind of double jeopardy which the 14th Amend
ment forbids as a denial of due process?
(d) STA TEM EN T OF TH E CASE
Appellants have been tried twice upon two separate and
successive sets of warrants in the Municipal-County Court of
Greensboro, Guilford County, North Carolina, for the same
identical acts of playing golf on the public Municipal Gillespie
Park Golf Course. In between these two tria ls appellants
were compelled to defend bills of indictment in the Superior
Court of Guilford County, North Carolina, for the same iden
tical acts of playing golf on said golf course. A ll of said
warrants and indictments charged that said same identical
acts of playing golf were a crime under Section 14-134 of the
General Statutes of North Carolina (1953), which statute is
quoted above in (v).
After said first trial upon said first set of warrants and
while the case was pending on appeal in the Supreme Court
of North Carolina, the United States District Court for the
Middle District of North Carolina, in Civil Case No. 1058,
George Simkins et al. v City of Greensboro et al., entered
its Declaratory Judgment covering said same identical acts
of playing golf on the public Municipal Gillespie Park Golf
Course. Said Declaratory Judgment appears verbatim on
Page 92 of the printed Record below and reads as follows:
" It is now ordered, adjudged and decreed that
defendants have unlawfully denied the plaintiffs as
residents of the City of Greensboro, North Carolina,
the privileges of using the Gillespie Park Golf Course,
and that this was done solely because of the race and
color of the plaintiffs, and constitutes a denial of their
constitutional rights, and unless restrained will con
tinue to deny plaintiffs and others sim ilarly situated."
The Supreme Court of North Carolina arrested judgment
on the judgment of conviction and sentence coming from the
de novo trial in the Superior Court of Guilford County,
North Carolina, under said first said of warrants, not upon
any ground of appeal set up by appellants, but because the
Court found that the Superior Court lost jurisdiction and its
actions became a nullity when it permitted the warrants to be
amended to change the name of the prosecuting witness from
Gillespie Park Golf Course to Gillespie Park Golf Club, Inc.
No further action was taken either by the Supreme Court or
the Superior Court of Guilford County with reference to said
first set of warrants, but the Supreme Court did say that the
appellants could "now be tried under the original warrant
since the court was without authority to allow the amend
ment." (246 NC 521).
After the United States District Court for the Middle
District of North Carolina had entered its said Declaratory
Judgment and after it had been affirmed by the Court of
Appeals for the Fourth Circuit and had become final, at the
October 21st, 1957, Term of the Superior Court of Guilford
County, North Carolina, appellants were indicted and com
pelled to defend against indictments charging the identical
trespass for the identical acts covered by said first set of
warrants and also covered by said Declaratory Judgment of
the said Federal Court. Said indictments appear on Pages
33 to 39 of the printed Record below. When said indictments
were called for trial on December 2, 1957, the State took
"a Nol Pros with leave" in all of said indictments. (Page 39 of
printed Record below).
Appellants were then immediately arrested on December
2, 1957, on a new set of warrants in said Municipal-County
9
Court charging the identical trespass for the identical acts
covered by said first set of warrants and also by said indict
ments and also by said Declaratory Judgment of said Federal
Court.
Appellants were tried and convicted and sentenced in
said Municipal-County Court upon said second set of warrants,
and upon appeal were tried, convicted and sentenced to 15
days in jail in a de novo trial in Superior Court of Guilford
County, North Carolina. The Supreme Court of North Caro
lina affirmed and found no error and this appeal is from the
final judgment of the Supreme Court of North Carolina men
tioned above as Appendix "B ".
The effect of the proceedings in the Federal case of George
Simkins et al. v City of Greensboro et al., 149 Fed Supp 562,
affirmed in City of Greensboro et al. v George Simkins et al.,
246 Fed 2d 425, is one of the crucial issues in this case. The
Supreme Court of North Carolina in its Opinion in this case said
that the United States District Court's Opinion in said Simkins
case was before the State Courts and that "O ur knowledge
of the facts in that case is limited to what appears in the
published opinion." (See Appendix "A ", Page 50.)
Appellants, therefore, insert said Opinion of said United
States District Court, as follows:
OPIN ION
Hayes, District Judge:
The City of Greensboro and the Greensboro City
Board of Education concede that they cannot own and
operate the Gillespie Park Golf Course for the public
and exclude the plaintiffs and other Negro citizens of
Greensboro from these privileges on account of their
color.
Although the golf course has been available to the
public for many years, whether by design or other
wise, Negroes have been denied the enjoyment of the
privilege.
10
The City of Greensboro, before Brown v. Board
of Education, 347 U.S. 483, in an effort to comply
with Plessy v. Ferguson, 163 U.S. 537, erected in the
City of Greensboro a nine-hole golf course for Ne
groes, known as Nocho Park Golf Course, but it can
not be deemed the equivalent of an 18-hole golf course
like Gillespie Park course which was restricted to white
people.
The Board of Education leased the land it did not
need for school purposes at the time to the City of
Greensboro. Through W orks Progress Administration,
which furnished 6 5 % of the cost, the City of Greens
boro built the last nine holes and agreed not to sell or
lease for private use this public property during its
life or usefulness.
Some of the Negro citizens applied to the City
authorities for permission to play on the Gillespie Park
course in 1949 and, because of opposition on the part
of local citizens against Negroes playing on the course,
after some negotiation, the City of Greensboro and
City Board of Education entered into a lease contract
whereby the entire golf course was leased to Gillespie
Park Golf Club, a non-profit corporation which was
organized solely for the purpose of taking the lease
and maintaining and operating the course as a public
golf course. G.S. 55-11
It is true the directors met with a quorum at first
and fixed $60.00 for annual membership which per
mitted them to play without paying additional fees;
also authorized $ 1.00 membership who would pay
$1.25 greens fees on holidays and weekends, and 75
cents on other days.
The records of the corporation do not disclose suf
ficient data to show if rules were really established and
enforced in respect to membership. The evidence does
clearly show that white people were allowed to play
by paying the greens fees without any questions and
without being members. When Negroes asked to play,
11
they were told they would have to be members be
fore they could play and it clearly appears that there
was no intention of permitting a Negro to be a mem
ber or to allow him to play, solely because of his be
ing a Negro.
The six plaintiffs presented themselves at the desk
of the man in charge of the golf course and laid
down 75 cents each and asked to play, the first named
plaintiff being a dentist and practicing his profession
in Greensboro. But they were not given permission to
play. They insisted on their right to play and played
three holes. W hile playing the third hole, the manager
came and ordered them to leave, and they refused to
go unless an officer arrested them. Whereupon the
manager swore out a warrant charging each with tres
pass upon which they were tried, convicted and sen
tenced to 30 days in jail, the Statutory limit, from
which an appeal is pending in the Supreme Court of
North Carolina.
The Negroes have not only been denied the privi
lege of the golf course, but there is no intention on the
part of the defendants to permit them to do so unless
they are compelled by order of court.
Th is case presents two questions for determination.
First are plaintiffs, being citizens and taxpayers of the
City of Greensboro, entitled to the privilege of play
ing on the defendant's golf course as long as it is
owned and used for the convenience of the citizens of
Greensboro? Second. Can the defendants avoid giv
ing equal treatment to the plaintiffs in the use of the
facility by leasing it to a private corporation or can
the lessee deny plaintiffs the right to play solely on ac
count of color and thereby accomplish a result which
is denied to the owner.
It is conceded that the defendants ordinarily are
not required to furnish a golf course for its citizens. If,
however, it undertakes to do it out of the public treas
ury, it cannot constitutionally furnish the facility to a
12
part of its citizens and deny it to others sim ilarly sit
uated.
The plaintiffs as citizens of the City of Greensboro
are entitled to the equal protection of the law and can
not be deprived of their rights solely on account of
color. The doctrine of Plessy v. Ferguson, supra, of
equal but separate facility has been over-ruled in
Brown v. Board of Education, supra.
Before Brown v. Board of Education, supra, the
Supreme Court held that the election laws of the State
could not be delegated to a political organization and
empower it to deny Negroes the right to participate
in the primary, and the action of such an agency was
State action within the meaning of the Fourteenth
Amendment and that the discrimination against the
Negroes violated the Amendment. Nixon v. Condon,
286 U.S. 73. The members of the Supreme Court who
declared that law were Chief Justice Hughes, and As
sociate Justices Brandeis, Stone, Roberts and Cardozo.
It is appropriate to quote from Justice Cardozo's
opinion:
"The test is whether they are to be classified as
representatives of the State to such an extent and in
such a sense that the great restraints of the Constitu
tion set limits to their action.
"W ith the problem thus laid bare and its essentials
exposed to view, the case is seen to be ruled by Nixon
v. Herndon, supra, Delegates of the States's power,
have discharged their official functions in such a way
as to discriminate invidiously between white citizens
and black. Ex parte Virginia, supra,- Buchanan v. War-
ley, 245 U.S. 60, 77. The Fourteenth Amendment,
adopted as it was with special solicitude for the equal
protection of members of the Negro race, lays a duty
upon the court to level by its judgment these barriers
of color."
To the same effect is Rice v. Elmore, 165 F. 2d 387
(4CCA).
13
The Fourth Circuit Court has ruled that public parks
are controlled by the same principles of constitutional
law as are controlling in public education. Dawson v.
Baltimore, 220 Fed. 2d 386, affirmed 350 U.S. 877.
Again that court held in Department of Conservation
v. Tate, 231 Fed. 2d 615, that citizens of the State
have right to use parks thereof without discrimination
on ground of race; that these rights cannot be abridg
ed by leasing parks with ownership being retained by
the State. Derrington v. Plummer 5CCA-240 F. 2d, 922.
Judge Moore in Lawrence v. Hancock, 76 F. Supp.
1004, in a sim ilar situation said:
" it is not conceivable that a city can provide the
ways and means for a private individual or corpora
tion to discriminate against its own citizens. Having
set up the swimming pool by the authority of the legis
lature, the city, if the pool is operated, must operate
it itself, or, if leased, must see that it is operated with
out any such discrimination."
The brief filed by the City of Greensboro contains
this significant statement in its statement of facts:
"In December, 1955, s ix of ten plaintiffs in this ac
tion were denied the use of Gillespie Park Golf Course
by employees of Gillespie Park Golf Club, Inc. That
same month the City Council instructed the City Man
ager to proceed forthwith to receive bids for the sale
of Gillespie Park Course and upon such sale to dose
the Nocho Park course. The land upon which the latter
is situated is to be used for governmental purposes
and is not to be sold."
The facts show that the City is still "in the saddle"
so far as real control of the park is concerned and that
the so-called lease can be disregarded, if and when,
the City decides to do it. It also lends powerful weight
to the inference that the lease was resorted to in the
first instance to evade the City's duty not to discrim
inate against any of its citizens in the enjoyment in the
14
use of the park. The threatened sale is the procedure
pursued in Clark v. Flory, 141 F. Supp. 248; affirmed
in 237 Fed. 2d. 597.
The City of Greensboro contends that Holmes v.
Atlanta, 350 U.S. 879; Hayes v. Crutcher, 137 F. Supp.
853; Augustus v. Pensacola, Fed. Supp. , N. D.
Fla., and Holley v. Portsmouth, Fed. Supp.
(E.D. Va.) are inapplicable because they dealt with
anticipated leases while in the instant case the lease
existed before this suit was brought. It further contends
that the lease is valid under the North Carolina law
and therefore the valid existing lease "freezes" the
status quo and leaves the court without power to do
anything. If this logic is sound constitutional rights are
a delusion and a snare. Such hitherto sacred rights
can not be abridged by a mere lease between the city
and a third party and the courts are not made impo
tent to afford relief. To hold otherwise would open a
Pandora's box by which governmental agencies could
deprive citizens of their constitutional rights by the arti
fice of a lease. If the lessee desires to continue to op
erate the golf course, it must do so without discrimina
tion against the citizens of Greensboro. Th is public
right can not be abridged by the lessee so long as the
course is available to some of the citizens as a public
park, it can not be lawfully denied to others solely
on account of race.
The private corporation challenges the right of
plaintiffs here because it contends they have not ex
hausted their administrative remedies, relying on Car-
son v. Warlick, 238 F. 2d. 724, and other cases deal
ing with enrollment in educational institutions. These
cases are not in point. Th is golf dub permits white peo
ple to play without being members, or otherwise, ex
cept it requires the prepayment of green fees. The
plaintiffs here paid their fees, were forced off the
course by being arrested for trespass. Everybody knows
this was done because the plaintiffs were Negroes and
for no other reason. Th is court can not ignore it. More-
15
over, there existed no known and uniform procedure of
an administrative nature to be exhausted by plaintiffs.
Admittance to a park or golf course is unlike enrolling
in an educational institution.
A decree w ill be entered declaring that these plain-
iffs have been denied on account of their color, equal
privileges to use the golf course owned by the City
Board of Education and the City of Greensboro and
operated by the Gillespie Park Golf Club, and perma
nently restraining the defendants from discriminating
against plaintiffs and other members of their race on
account of color, so long as the golf course is owned
by these agencies and operated for the pleasure and
health of the public, their agents, lessees, servants and
employees.
The court invited counsel for the respective par
ties to confer and to suggest to the court the best prac
tical way to make effective the decree, in the event
the plaintiffs prevailed. The final decree w ill be de
ferred a short time to get the result of this conference.
Citizenship in the United States imposes uniform
burdens, such as paying taxes and bearing arms for
the preservation and operation of our government.
In like manner whatever advantages or privileges one
citizen in the United States may enjoy through his lib
erty becomes the constitutional right of each citizen
and without regard to race, color or creed. These prin
ciples of law have been fully and elaborately estab
lished in the Fourth Circuit Court of Appeals and by
the Supreme Court of the United States and must be
adhered to in this case.
This the 18th day of March, 1957.
/s/ Johnson J. Hayes
United States District Judge
Raising of Federal Questions Below
Appellants first raised Federal questions sought to be re
viewed by this appeal by a written motion to quash the war
16
rants in Municipal-County Court. The State did not answer
the allegations of the motion. The Supreme Court of North
Carolina said in its Opinion in this case: "Defendants moved
in the Municipal-County Court to quash the warrants. Their
motions were overruled. They then entered pleas of not guil
ty ." (Appendix "A " attached hereto, Page 42.)
Appellants renewed these written motions to quash in the
Superior Court and the State did not answer the allegations
of the motion. The Supreme Court of North Carolina said in
its Opinion in this case: "Before pleading to the merits in the
Superior Court, defendants renewed their motions to quash
as originally made in the Municipal-County Court. The mo
tions made in apt time were overruled by the court." (Ap
pendix "A " attached hereto, Page 43.)
The written motion to quash is at Pages 28 to 32 of the
printed Record below. The following is quoted from Pages
28 to 30:
Motion to Quash
Now come the defendants, and each of them all
being Negro citizens of Greensboro, North Carolina,
through counsel, and make the following Motion:
That the warrants in the above-titled cause charg
ing these defendants, and each of them with simple
trespass based on GS 14-134 be quashed for the rea
son that GS 14-134 is hereby being unconstitutionally
applied to these defendants, on the following grounds:
1. The State of North Carolina in this prosecution
is, contrary to the Supremacy Clause of the United
States Constitution, attempting to make a crime out
of specific acts and conduct which both the United
States District Court for the Middle District of North
Carolina and the United States Court of Appeals for
the Fourth Circuit have specifically held to be protect
ed by the Fourteenth Amendment to the Constitution
of the United States. In support of this assertion the
defendants show to the Court the following:
17
(a) Based upon the specific facts and conduct al
leged by the State to be a crime in this case, these de
fendants brought Civil Action No. 1058 in the United
States District Court for the Middle District of North
Carolina, praying for a declaratory judgment and a
decree enjoining the prosecution witnesses and the
City of Greensboro and the Greensboro City Board of
of Education from interfering with the defendants and
all other Negroes sim ilarly situated from playing golf
on the Gillespie Park Golf Course.
(b) A full hearing was held before United States
District Judge Johnson J. Hayes, who on April 24,
1957, found specifically that the prosecuting witnesses
and the City of Greensboro had refused to permit these
defendants to play golf "p rim arily because of their
color" (Finding of Fact No. 33), and concluded as a
matter of law that these defendants "and other Ne
groes sim ilarly situated cannot be denied on account
of race, the equal privileges to the park, notwithstand
ing the lease." In addition to his Findings of Fact and
Conclusion of Law, Judge Hayes filed an opinion in
the case and entered a "decree and injunction" enjoin
ing the prosecuting witnesses and the City of Greens
boro and the Greensboro City Board of Education from
interfering with these defendants in playing golf on
the Gillespie Park Golf Course. The prosecuting wit
nesses and the City of Greensboro appealed and this
decree was subsequently affirmed by the United States
Court of Appeals for the Fourth Circuit.
(c) These defendants have subpoenaed the Clerk of
the United States District Court for the Middle District
of North Carolina to bring to this trial the full record
and judgment roll in said case and respectfully request
an opportunity to offer this evidence upon the hear
ing of this motion.
(d) Defendants respectfully urge the Court to re
ceive and consider the record and judgment roll in the
Federal case and after such consideration to estop the
State and the prosecuting witnesses from proceeding
18
further with this prosecution. To permit this prosecu
tion to proceed would be in effect to nullify and ren
der ineffectual the judgment and decree of the United
States Courts contrary to the Supremacy Clause of the
United States Constitution and such prosecution would
violate the rights of these defendants and laws of the
United States, including the Fourteenth Amendment.
The Supreme Court of North Carolina in its Opinion in
this case held that the proceedings in the Federal Court case
of Simkins v Greensboro, supra, with the exception of the
Opinion, could not be shown on the motion to quash for the
reason that the record of such proceedings, except the Opin
ion, was "evidence aliunde the record." But, with reference to
the allegations in the written motion to quash, the Supreme
Court of North Carolina did say: "Since none of the reasons
nor all combined sufficed to sustain the motion to quash, the
court correctly overruled the motion and put the defendants
on trial for the offense with which they were charged." (Ap
pendix "A ", hereto attached, Page 45.)
Tria l Court Refused to Admit Federal Records
On Page 14 of appellants' brief before the Supreme
Court of North Carolina in this case is the following assign
ment of error: "The Court erred in refusing to admit defend
ants' Exhibits 6 and 7, as set out in Exception No. 22. These
exhibits were the decrees, the findings of fact, conclusions of
law and opinion of the Federal District Court in the Simkins
case and the opinion of the Court of Appeals, Fourth Circuit,
in the same case." (See Transcript of Record, Page 121.) The
offer of these Exhibits 6 and 7 and the refusal of the Tria l
Court to admit them and the Exception No. 22 all appear
on Page 77 of the printed Record below.
The Record is silent as to the identification of these Fed
eral Court records as Exhibits 6 and 7, but the Supreme Court
of North Carolina says in its Opinion in this case the follow
ing with reference to said Federal Court records: "Although
the defendants had the record in that case identified, they
did not offer it in evidence." (Appendix "A " hereto attached,
19
Page 50). The only document other than appellants' brief
mentioned above, which shows the identification of the Fed
eral Court records, so far as appellants know, is the Official
Court Reporter's Transcript of the Testimony, which shows on
Page 59 that "the documents referred to were marked for
identification Defendants' Exhibits 6 and 7 ". The Supreme
Court of North Carolina having gone outside the printed rec
ord to find the true fact that the Federal Court records were
identified, appellants believe that it is proper for them to
include this material in the statement of the case, showing how
the Federal records were identified, in order to show the fur
ther true fact, which does appear in the record that the Tria l
Court refused to admit said Exhibits 6 and 7 into evidence.
Motion to Set Aside the Verdict
Appellants filed in the case in the Superior Court a w rit
ten motion to set aside the verdict and for judgment notwith
standing the verdict. The State did not answer the allegations
of this motion. The allegations of the motion to quash were
repeated by reference and in addition the following allega
tions were included in the motion to set aside the verdict (said
motion appearing on Pages 9] to 97 of the printed Record
below):
II. That the Supremacy Clause (Article VI) of the
Constitution of the United States requires this Court to
give effect to and to enforce the judgments of the
United States Courts covering the subject matter of this
prosecution, particularly the "Decree and Injunction"
of the United States District Court for the Middle Dis
trict of North Carolina, in Civil Case No. 1058, in
which these defendants were plaintiffs and Gillespie
Park Golf Club, Inc., was one of the defendants, cov
ering the identical acts and conduct charged by the
State to be a crime of trespass in this case, said "De
cree and Injunction" reading in part as follows:
" It is now ordered, adjudged and decreed that de
fendants have unlawfully denied the plaintiffs as res
idents of the City of Greensboro, North Carolina, the
privileges of using the Gillespie Park Golf Course, and
20
that this was done solely because of the race and color
of the plaintiffs, and constitutes a denial of their con
stitutional rights, and unless restrained w ill continue to
deny plaintiffs and others sim ilarly situated."
That the State of North Carolina and its Jury in
this case undertake to find to be criminal the identical
acts and conduct which said "Decree and Injunction"
holds to be protected by the Constitution of the United
States, and further undertake to find to have been law
fully done, that which said "Decree and Injunction"
holds was "unlawfully done," and that to permit said
verdict to stand and to punish these defendants on
the basis of said verdict would nullify and render in
effectual the rights of these defendants which said "de
cree and injunction" holds to be guaranteed and pro
tected by the Constitution and laws of the United
States, including the due process and equal proctec-
tion clauses of the 14th Amendment.
III. That a written opinion was handed down in the
said case in the United States District Court for the
Middle District of North Carolina by United States Dis
trict Judge Johnson J. Hayes, which opinion is reported
in 149 Fed. Supp. 562, and in which Judge Hayes said
of the identical acts and conduct which the verdict finds
to be criminal in this case, the following:
"Th is golf club permits white people to play with
out being members, or otherwise, except it requires the
payment of greens fees. The plaintiffs here paid their
fees, were forced off the course by being arrested for
trespass. Everybody knows this was done because the
plaintiffs were Negroes and for no other reason. This
Court cannot ignore it."
Defendants respectfully request this Court to take ju
dicial notice of this matter of common knowledge per
taining to this public golf course owned and operated
by their agency by the City of Greensboro and the
Greensboro City Board of Education. That this matter of
common knowledge about the Gillespie Park Golf
21
Course was spoken truly and not idly by Judge Hayes
when he wrote that "everybody knows" it was shown by
Jurors in this case in their answers to questions touching
their qualifications. Those who had played on Gillespie
Park Golf Course stated very frankly and freely in
open court that they had played on this course without
any requirements except the payment of greens fees.
Defendants respectfully suggest that, if any confirma
tion of Judge Hayes' statement that this was common
knowledge which "everybody knows" is necessary it
is found in these statements of the Jurors in this case.
Defendants respectfully suggest to the Court that
to permit this verdict to stand under these circumstances
would violate the rights of these defendants under
the Constitution and laws of the United States, in
cluding the due process and equal protection clauses
of the 14th Amendment.
IV. That said "Decree and Injunction" of the United
States District Court for the Middle District of North
Carolina begins as follows:
"Th is cause coming on for hearing and the Court
having heard the evidence and argument of counsel
and carefully considered the same and the briefs filed,
and having made the findings of fact and conclusions
of law which appear of record."
Defendants respectfully suggest to the Court that
this reference in said "Decree and Injunction" to the
findings of fact and conclusions of law which appear of
record makes them a part of the "Decree and Injunc
tion" just as if written out therein in fu ll; and for this
reason and also because said findings of fact and
conclusions of law are a part of the record and judg
ment roll in said case in the United States District
Court for the Middle District of North Carolina cover
ing the identical acts and conduct which said verdict
seeks to make a crime, the Supremacy Clause of the
Constitution of the United States lays a duty upon
this Court to respect and give effect to said findings of
22
fact and conclusions of law, and especially to Finding
of Fact 33, which reads as follows:
"W hite citizens of Greensboro are given the priv i
lege of becoming permanent members by p a y i n g
$60.00 per year without greens fees and others not
permanent members by paying $ 1.00 per year and
greens fees of $.75, except on holidays and weekends,
when it is more. On days other than holidays and
weekends when greens fees are $1.25 white citizens
are permitted to play without being members by pay
ing the fees above set forth and without paying the
extra $ 1.00 and without any questions being put to
them. When the plaintiffs applied to be given the
same privilege they were refused on the ground that
they were not members but primarily because of their
color. Plaintiffs laid the greens fees on the table in the
club house, went out to play and after they had gotten
to the 3rd hole the 'pro' in charge of the golf course or
dered them off and they insisted they had a right to
play and would not get off unless they were arrested by
an officer, whereupon the 'pro' had them arrested
and they were tried and convicted and sentenced to
imprisonment for a period of 30 days, which is the
maximum under the law for the State of North Caro
lina for trespassing."
Defendants further respectfully show to the Court
that on these facts Judge Hayes said in his opinion the
following:
"Citizenship in the United States imposes uniform
burdens, such as paying taxes and bearing arms for
the preservation and operation of our government.
In like manner, whatever advantages or privileges one
citizen in the United States may enjoy through his
liberty becomes the constitutional right of each citizen
and without regard to race, color or creed. These prin
ciples of law have been fu lly and elaborately estab
lished in the Fourth Circuit Court of Appeals and by
the Supreme Court of the United States and must be
adhered to in this case."
23
Defendants respectfully suggest to the Court that
the verdict in this case not only does not adhere to
these principles, but if permitted to stand would seek
to thwart and nullify these principles; and that said
verdict should be set aside to permit said principles to
be adhered to and vindicated.
V. That the evidence in this case and the instruc
tions of the Court to the Jury show that the land on
which Gillespie Park Golf Course is situated is public
and not private property, whereas G S 14-134, which
is the North Carolina statute under which the warrants
were drawn in this case, is meant to cover private
property and not public property. Said statute reads:
" I f any person after being forbidden to do so
shall go or enter upon the lands of another without
a license therefor, he shall be guilty of a misde
meanor, . . . "
Defendants respectfully suggest to the Court that
this statute was never intended to apply to public
lands or public property, but was and is intended to
apply solely and only to private property, and that
the lands and property and the possession alleged
to have been invaded in this case was public lands
and property and the possession of an agency of the
City of Greensboro and the Greensboro City Board
of Education, which held the title to said lands and
property. In this connection defendants respectfully
call the Court's attention to Finding of Fact No. 30 in
said case in the United States District Court for the
Middle District of North Carolina:
"That the leases in this case undertook to turn over
to a corporation having no assets or income highly
valuable income-producing property belonging to the
City and the school board, the chief officer and pro
moter of said corporation being an official of the city,
and the city having no prospect of getting anything
from said leases except out of the income which the
leased property was already bringing in, and with the
24
City reserving the right to put into the property further
investments from other sources than said income and
that under these circumstances said corporation was
in fact an agency of the City and the school board for
the continued maintenance and operation of the golf
course for the convenience of the citizens of Greens
boro."
The Superior Court denied the motion to set aside the
verdict without requiring the State to answer its allegations.
Appellants excepted and assigned the denial of the motion
as error on appeal. (Page 97 of printed Record below.) The
Supreme Court of North Carolina discusses this motion at
length in its Opinion in this case and concludes: "Defendants
were not, as a matter of right, entitled to have the verdict set
aside." (Appendix "A " herto attached, starting at Page 50.)
In its discussion of the motion to set aside the verdict the
Supreme Court of North Carolina said with reference to
the acts of playing golf in this case as having been before
the Federal Courts: " It would appear from the opinion that
the entry involved in this case was one incident on which
plaintiffs there relied to support their assertion of unlawful
discrimination, but it is manifest from the opinion that that
was not all of the evidence which Judge Hayes had." (Em
phasis added.)
Equal Protection Question Besides Racial Exclusion
In their motion to set aside the verdict appellants said
(Page 93 of printed Record below): "Defendants respectfully
suggest to the Court that to permit this verdict to stand under
these circumstances would violate the rights of these defend
ants under the Constitution and laws of the United States,
including the due process and equal protection clauses of the
14th Amendment."
Clyde Bass, assistant pro at the golf course when appel
lants sought to play, testified as to what he told appellants
(Page 40 of printed Record below): " I told them it was a
private club for members and invited guests only." He also
testified (Page 41 of printed Record below): "To my knowledge,
no Negroes have ever played at Gillesipe Park Golf Course
25
before this date. Some Negroes have presented themselves
before this date to play, but none have played to my knowl
edge."
Appellants alleged in their motion to set aside the verdict,
and the State did not answer to deny the allegations, that
the Jurors in this case, "in their answers to questions touching
their qualifications," in the cases of those who had played on
Gillespie Park Golf Course, "stated very frankly and freely
in open court that they had played on this course without
any requirements except the payment of greens fees."
The by-laws of the golf corporation said the following of
membership in the corporation (Page 70 of printed Record
below): "Membership in this corporation is restricted to mem
bers who are approved by the Board of Directors for member
ship in this Club."
Said by-laws said the following as to who was eligible to
play on this golf course (Page 70 of printed Record below):
"The golf course and its facilities shall be used oniy by mem
bers, their invited guests, members in good standing of other
golf clubs, members of the Carolina Golf Association, pupils
of the Professional and his invited guests."
John R. Hughes, president of the golf corporation, testified
(Pages 74, 75 of the printed Record below): "W e operated
completely on our own. The City had nothing to do with it."
"Those persons allowed to play were members of Gillespie
Park Golf Club, Inc., and their invited guests and members
in good standing with other clubs that were members of the
Carolina Golf Association."
One or more of appellants were members of a golf club
which was not a member of the Carolina Golf Association.
(Page 50 of printed Record below).
The Superior Court denied the motion to set aside the
verdict and appellants took exception. (Page 97 of printed
Record below). The Supreme Court of North Carolina affirmed
and found no error. (Appendix "A " attached hereto, Page
53.)
26
Judicial Notice of 14th Amendment as Construed by
Federal Decisions
Appellants contended in their motions to quash and to
set aside the verdict and by proper assignments on appeal
that it was the duty of the State Courts under the Supremacy
Clause (Art. 6, CL 2) of the Constitution of the United States
to notice and to enforce the Federal Court decisions declaring
the rights of appellants with respect to the identical acts
charged to be a criminal trespass in this case. (Pages 28, 91
of printed Record below). Appellants also alleged verbatim in
the motion to set aside the verdict the Declaratory Judgment
of the United States District Court covering said identical acts.
(Page 92 of printed Record below).
The Supreme Court of North Carolina held that the State
Courts would take judicial notice of the Federal Court's pub
lished Opinion, but that "Since the court was not required to
take judicial notice of the judgment" in the Federal Court,
"we are not called upon to determine the effect which should
have been given if offered in evidence." (Appendix "A "
attached hereto, Page 52.)
Raising Question of Double Jeopardy
In their motions to quash and to set aside the verdict
appellants alleged that they had been subjected to double
jeopardy in violation of the 14th Amendment to the Constitu
tion of the United States. The motions were overruled and
the Supreme Court of North Carolina said in its Opinion:
" It is manifest that there is here no double jeopardy." (Appen
dix "A " attached hereto, Page 44.)
The successive criminal proceedings covering the identical
acts charged to violate Section 14-134 of the General Statutes
of North Carolina (1953) are set forth above under this State
ment of the Case on Pages 8-10.
In the belief that this Court w ill take judicial notice of
the proceedings in the Federal Court to aid in determining
whether or not this Court has jurisdiction in this case, ap
pellants have attached hereto as Appendix "E " , Appendix
"F ", and Appendix "G ", the Findings of Fact, the Conclu
27
sions of Law, and the Decree and Injunction of the United
States District Court for the Middle District of North Carolina.
(e) SUBSTA N TIA LTY OF TH E FEDERAL Q UESTIO N S
Th is is the first time since the desegregation decisions of
this Court that any state, so far as known to appellants, has
undertaken to make a crime out of the exercise of "constitu
tional rights" which have been duly declared to exist by
the Federal Courts. Months before the warrants were drawn
in this case, charging to be a criminal trespass the acts
of appellants in playing golf on the Municipal Gillespie Park
Golf Course, the United States District Court for the Middle
District of North Carolina had issued its Declaratory Judgment
declaring that those identical acts of playing golf constituted
the "constitutional rights" of appellants and further declaring
that interference with those "constitutional rights" by the
prosecuting witnesses in this case was "un law fully" done;
and also before said warrants were drawn said Declaratory
Judgment had been duly affirmed by the Court of Appeals
for the Fourth Circuit and had become final. The State
agencies, namely, City of Greensboro, Greensboro City Board
of Education, and Gillespie Park Golf Club, Inc., were the de
fendants against whom said Declaratory Judgment was issued,
the Federal District Court having found in Finding of Fact No.
30, quoted verbatim by appellants in their motion to set aside
the verdict and not denied by the State, that the said golf
"corporation v/as in fact an agency of the City and the
school board for the continued maintenance and operation
of the golf course for the convenience of the citizens of
Greensboro." (See Page 25 above.)
The State in this case seeks to reverse what the Federal
Court has declared under the Constitution of the United States
to be the "constitutional rights" of appellants, and to make
unlawful under state law what the Federal Courts have held
to be lawful under the Federal Constitution.
Cases on All-Fours on Question of Jurisdiction
On the question of jurisdiction, appellants believe that
Marsh v Alabama, supra, is as near a case like the instant
case as it is ordinarily possible for two cases to be.
28
In Marsh the defendants were arrested, tried and con
victed for an alleged trespass under Sec. 426, Title 14, Ala
bama Code 1940, which statute is entitled "Trespass after
warning," and which is in substance practically identical with
Sec. 14-134 of the General Statutes of North Carolina (1953)
as construed in the instant case.
The land involved in Marsh was a company-owned town,
and the alleged trespass was remaining on a street in that
town and distributing literature after being ordered to leave.
Defendant having claimed rights under the First and Four
teenth Amendments of the Constitution of the United States,
this Court entertained an appeal from the Supreme Court of
Alabama, which sustained the conviction and sentence of de
fendant.
In this case the golf course involved was owned by the
City of Greensboro and the Greensboro City Board of Edu
cation, but was operated by Gillespie Park Golf Club, Inc.,
a North Carolina corporation which the Federal Courts de
termined to be "an agency of the City and the school board."
(See Page 25 above.) Appellants were arrested, tried and
convicted under said North Carolina trespass statute for play
ing golf on this golf course, where they claimed they had a
Federal constitutional right to be, this right having been estab
lished by Declaratory Judgment of the Federal Courts at the
time the warrants in this case were drawn. (See Pages 10-12
and 20 above.)
The Supreme Court of North Carolina having sustained
the judgment of conviction and sentence of appellants, it
would seem that the jurisdiction of this Court on appeal would
be clearly established by Marsh v Alabama. In that case, Mr.
Justice Black said this for the Court:
"In our view the circumstance that the property
rights to the premises where the deprivation of liberty,
here involved, took place, were held by others than
the public, is not sufficient to justify the State's permit
ting a corporation to govern a community of citizens
so as to restrict their fundamental liberties and the
29
enforcement of such restraint by the application of a
state statute." (326 US at Page 509)
Mr. Justice Frankfurter concurring said:
"And sim ilarly the technical distinctions on which a
finding of 'trespass' so often depends are too tenuous
to control decision regarding the scope of vital liber
ties guaranteed by the Constitution." (326 US at Page
511)
In the same vein of the principles of Marsh v Alabama, so
far as the question of jurisdiction is concerned, is the case of
Niemotko v Maryland, supra, which involved use of a state
park without a permit, and the arrest, tria l, conviction and
sentence of defendants for such use under a Maryland dis
orderly conduct statute. From a final judgment sustaining the
conviction and sentence, this Court entertained an appeal from
the highest Maryland court.
Effect of Supremacy Clause on Section 14-134
In Railway Employees' Department etc. v Flanson, supra,
this Court said: "A union agreement made pursuant to the
Railway Labor Act has, therefore, the imprimatur of the
federal law upon it and by force of the Supremacy Clause
of Article VI of the Constitution, could not be made illegal nor
vitiated by any provisions of the laws of a state."
Likewise, appellants contend that, at the time the warrants
issued upon which appellants were arrested and tried and
sentenced in this case, the identical acts of playing golf on
the Municipal Gillespie Park Golf Course, which the State
charges to be a crime, bore "the imprimatur" of the 14th
Amendment as interpreted by the Federal Courts, and there
fore "could not be made illegal" by Section 14-134 of the
General Statutes of North Carolina, and that said statute
must give way as unconstitutional, as it thus collides with
the Federal Constitution.
Other cases sustaining the jurisdiction of this Court, where
state law collides with Federal law, are: Franklin National
Bank v New York and Public Utilities Commission of California
v United States, both supra.
30
Judicial Notice.—Appellants take the view that Federal
Court proceedings and judgments construing the Con-
stution and laws of the United States are not just ordinary
judgments, but that they become an integral part of the
Federal Constitution and laws which they construe. Appellants
believe that when the Supremacy Clause says that "the Judges
in every State shall be bound" by the Constitution and laws
of the United States, it means to include the interpretation
placed upon them by the Federal Courts.
In Smith v O'Grady, Warden, supra, this Court said of
the Federal Constitution: "That Constitution is the supreme
law of the land, and 'upon the state courts, equally with
the courts of the Union, rests the obligation to guard and
enforce every right secured by that Constitution.'" The State
Court in this case could not know its duty without looking
at all parts of the Federal decisions which appellants called
to their attention as establishing "constitutional rights" in
appellants to perform the acts of golf playing which the
State charges to be a crime in this case.
In L illy v Grand Trunk Western Ry Co, supra, the Supreme
Court of Illinois declined to take judicial notice of a rule of
the Interstate Commerce Commission under an Act of Congress.
This Court reversed, saying: "Adopted in the exercise of the
Commission's authority, Rule 153 acquires the force of law
and becomes an integral part of the Act . . . , to be judicially
noticed."
Likewise, in this case appellants believe that the decisions
of the Federal Courts declaring to be the "constitutional rights"
of appellants the identical acts of playing golf which the
State charges to be a crime, became an integral part of the
14th Amendment in this case, "to be judicially noticed."
In Brown v Board of Education, supra, this Court said:
"Th is Court takes judicial notice of a fourth case, which
is pending in the United States Court of Appeals for the
District of Columbia Circuit, Bolling et al. v. Sharpe et al.,
No. 11,018 on that court's docket. In that case, the appellants
challenge the appellees' refusal to admit certain Negro ap
pellants to a segregated white school in the District of Colum-
31
bid; they allege that appellees have taken such action pur
suant to certain Acts of Congress; they allege that such action
is a violation of the Fifth Amendment of the Constitution."
Appellants believe that the principles upon which this
Court took judicial notice even of allegations in the pleadings
in said Brown case would, when supplemented by the Supre-
mancy Clause of the Constitution of the United States, require
the State Courts in this case not only to take judicial notice
of but also to give effect to the proceedings and decisions of
the Federal Courts, determining Federal "constitutional rights"
and involving the identical acts of playing golf on the public
Municipal Gillespie Park Golf Course which are involved in
this criminal trespass prosecution; and that all of these matters
raise most substantial Federal questions which give this Court
jurisdiction to entertain this appeal, and which only this Court
can finally resolve.
Little Rock Case (Aaron v Cooper, _____US_____ , Decided
September 29, 1958). In this latest decision of this Court
touching the reach of the judgments and decisions of the
Federal Courts when intepreting or establishing "constitutional
rights" under the Constitution of the United States, it was
stated by Mr. Chief Justice Warren for a unanimous Court:
"Article VI of the Constitution makes the Constitution the
'supreme law of the land.' In 1803, Chief Justice Marshall,
speaking for a unanimous court, referring to the Constitution
as 'the fundamental and paramount law of the nation,' de
clared in the notable case of Marbury v. Madison, 1 Cranch
137, 177, that 'it is emphatically the province and duty of
the judicial department to say what the law is.' Th is decision
declared the basic principle that the Federal judiciary is
supreme in the exposition of the law of the Constitution, and
that principle has ever since been respected by this court
and the country as a permanent and indispensable feature
of our constitutional system."
"Chief Justice Marshal! spoke for a unanimous court in
saying that: 'If the Legislatures of the several states may, at
w ill, annul the judgments of the courts of the United States,
and destroy the rights acquired under those judgments, the
Constitution itself becomes a solemn mockery . . .' United States
v. Peters, 5 Cranch 1 15, 136." (Emphasis Added.)
32
Pleadings Which Assert Federal Rights
Appellants state above verbatim (Pages 17-19, 20-25) alle
gations in their motions to quash and to set aside the verdict,
asserting the Federal rights which they claim have been de
nied or infringed in this case. Since the State did not in any
way deny these allegations, they must be accepted as true.
Tomkins v Missouri, supra.
As to the jurisdiction and province of this Court on appeal
from a state court where Federal constitutional rights have
been set forth in a pleading, this Court said in Staub v City
of Baxley, supra:
"A t the threshold, appellee urges that this appeal
be dismissed because, it argues, the decision of the
Court of Appeals was based upon state procedural
grounds and thus rests upon an adequate nonfederai
basis, and that we are therefore without jurisdiction to
entertain it. Hence, the question is whether that basis
was an adequate one in the circumstances of this case.
'Whether a pleading sets up a sufficient right of action
or defense, grounded on the Constitution or a law of
the United States, is necessarily a question of federal
law; and where a case coming from a state court pre
sents that question, this Court must determine for itself
the sufficiency of the allegations displaying the right
or defense, and is not concluded by the view taken of
them by the state court/ First Nat. Bank v Anderson
269 US 341, 346, 70 L ed 295, 302, 46 S Ct 135, and
cases cited. See also Schuylkill Trust Co. v Pennsyl
vania, 296 US 113, 122, 123, 80 L ed 9 1 ,9 8 , 56 S Ct
31, and Lovell v G riffin, 303 US 444, 450, 82 L ed 949,
952, 58 S Ct 666. As Mr. Justice Holmes said in Davis
v Wechsler, 263 US 22, 24, 68 L ed 143, 145, 44 S Ct
13, 'Whatever springes the State may set for those
who are endeavoring to assert rights that the State
confers, the assertion of federal rights, when plainly
and reasonably made, is not to be defeated under the
name of local practice.' Whether the constitutional
rights asserted by the appellant were '. . . given due
recognition by the [Court of Appeals] is a question as
33
to which the [appellant is] entitled to invoke our judg
ment, and this [she has] done in the appropriate way.
It therefore is within our province to inquire not only
whether the right was denied in express terms, but also
whether it was denied in substance and effect, as by
putting forward non-federal grounds of decision that
were without any fa ir or substantia! support . . . [for]
if non-federal grounds, plainly untenable, may be thus
put forward successfully, our power to review easily
may be avoided/ Ward v Love County, 253 US 17, 22,
64 L ed 7 5 1 ,7 5 8 , 40 S Ct 419, and cases cited."
Jurisdiction as Affected by Discrimination Against
Federal Rights
The Supreme Court of North Carolina held in its opinion
in this case that the Federal Court proceedings establishing
the "constitutional rights" of appellants could not be shown
on a motion to quash. (Appendix "A " attached hereto, Page
45). But on May 7, 1958, in State v Perry, supra, the
Supreme Court of North Carolina held that the Federal
right not to be indicted by an unconstitutional grand jury
could be shown on a motion to quash.
The reason for not forcing a defendant to stand trial until
his claim that there is a fundamental impediment in the pro
ceedings has been decided seems to be equally present in
this case as in State v Perry.
Inadvertent Passing by of Federal Rights
Appellants have set out above at Pages 19-20 what
they consider to be a fa ir statement concerning the record
with regard to the assertion in the opinion of the Supreme
Court of North Carolina: "Although the defendants had the
record in that case identified, they did not offer it in evidence,"
meaning the record from the Federal Courts.
Appellants make no claim that this arose through other
than inadvertence on the part of all concerned, including ap
pellants. Since no petition for rehearing is permitted in a
criminal case in the Supreme Court of North Carolina, appel
lants could not call this inadvertence to the attention of that
34
Court. But the effect upon the asserted Federal rights is the
same as though this incorrect statement of fact about not
offering the Federal Court records in evidence had been
other than inadvertent.
Besides, under its decisions the Supreme Court of North
Carolina has wide discretion to make inquiry of the Clerks of
the lower State Courts to determine what actually transpired,
where there are discrepancies in considering the record on
appeal from such lower Courts. See Mason v Commissioners
of Moore and Aycock v Richardson, both supra, and also Art.
IV, Sec. 8 of the Constitution of North Carolina.
What is more, this wide discretion has actually been exer
cised by the Supreme Court of North Carolina, in reconciling
discrepancies or ambiguities in the record in this case. See
State's Motion to Dismiss at Page 173 of Transcript of the
Record, and Opinion of the Court, Appendix "A ", attached
hereto, Page 42.
Appellants therefore contend that this brings the case
on this point affecting the jurisdiction of this Court within
the principle of NAACP v Alabama, supra, where this Court
said: "Respondent recognizes that our jurisdiction is not de
feated if the nonfederal ground relied on by the state court
is 'without any fa ir or substantial support,' Ward v Love
County, 253 US 17, 22, 64 L ed 751, 758, 40 S Ct 419."
Due Process and Equal Protection Question
Aside from that of Racial Exclusion
At Pages 25-26 above appellants give a summary of the
evidence as to how this Municipal Gillespie Park Golf Course
was operated in permitting or excluding citizens from play.
It shows clearly that these State agencies undertook to operate
this public golf course, built originally with the Federal Govern
ment providing 65 per cent of the cost, as a private, member
ship only facility, and that the use was restricted to those
citizens who met the approval of the Board of Directors and
managers, without any known standards which all citizens
could meet.
Appellants contend that this was a denial of equal pro
tection and due process, without regard to racial exclusion. A
35
case on this principle is that of Niemotko v Maryland,
supra, where citizens were tried and convicted for using a
public park without a permit from those in charge. There this
Court said:
"In cases in which there is a claim of denial of
rights under the Federal Constitution, this Court is not
bound by the conclusions of lower courts, but w ill
reexamine the evidentiary basis on which those con
clusions are founded."
Examining the evidence in Niemotko, this Court said:
"In the instant case we are met with no ordinance
or statute regulating or prohibiting the use of the p a rk ;.
all that is here, is an amorphous 'practice', whereby all
authority to grant permits for the use of the park is in
the Park Commissioner and the City Council. No stand
ards appear anywhere; no narrowly drawn limitations;
no circumscribing of this absolute power; no substantia!
interest of the community to be served."
And finally on Page 273 of 340 US:
" It thus becomes apparent that the lack of stand
ards in the license-issuing 'practice' renders that 'prac
tice' a prior restraint in contravention of the Fourteenth
Amendment and that the completely arbitrary and dis
criminatory refusal to grant the permits was a denial
of equal protection. Inasmuch as the basis of the con
victions was the lack of the permits, and that lack was,
in turn, due to the unconstitutional defects discussed,
the convictions must fa ll."
The president of the golf club testified: "The City had no
voice in the operation of the golf course after the corporation
took it up." "W e operated completely on our own." (Page 26
above). The written by-laws of the golf corporation per
mitted members of "other golf clubs" to play, but this in
practice was arbitrarily limited to dubs which were also mem
bers of the Carolina Golf Association, and appellants who
were members of the City-owned 9-hole Nocho Park Golf
Club were excluded from playing because their Club did
not belong to Carolina Golf Association.
36
Changing Meaning of Statute Without Notice
Prior to the instant case, it had always been the inter
pretation of the Supreme Court of North Carolina that Sec
tion 14-134 of the General Statutes of North Carolina (the
criminal trespass statute) applied only to private and not
to public property. In State v Clyburn, supra, the Supreme
Court of North Carolina said: "O ur statutes, GS 14-126 and
-134, impose criminal penalties for interfering with the pos
session or right of possession of real estate privately held."
(Emphasis added.)
The instant case is the first case, so far as appellants have
been able to discover, where the Supreme Court of North
Carolina has ever held that said Section 14-134 imposes
criminal penalties upon a citizen for going upon lands pub
licly owned and publicly held.
The decision of the Supreme Court of North Carolina in
this case, therefore, raises serious questions of Due Process
and Equal Protection under the Fourteenth Amendment, which
are closely akin in principle to the question decided by this
Court in Lambert v California, supra: "Engrained in our con
cept of Due Process is the requirement of notice."
It would seem that citizens would be entitled to some no
tice that the Supreme Court of North Carolina was going to
change its well-settled rule that this criminal trespass statute
applied only to "real estate privately held," before citizens
using public lands could be expected to understand that, in
exercising their "constitutional rights" to go upon such public
lands, they would be running the risk of prosecution under
this criminal trespass statute which had never before this
instant case been applied to public lands.
Evidence Shows Racial Discrimination
The fact that no Negro has ever been permitted to play
on this Municipal Gillespie Park Golf Course (See Pages
25-26 above), since the United States Government pro
vided 65 per cent of the original cost in 1940, brings this
case, in the opinion of appellants, within the principle of Eu
banks v Louisiana, supra, where this Court said: "W e are reluc
37
tantly forced to conclude that the uniform and long-continued
exclusion of Negroes from grand juries shown by this record
cannot be attributed to chance, to accident, or to the fact that
no sufficiently qualified Negroes have ever been included in
the lists submitted to the various local judges."
Clyde Bass, "an agency of the City and the school board,"
(See Page 25 above), testified (See Pages 25-26 above):
"To my knowledge no Negroes have ever played at the
Gillespie Park Golf Course before this date. Some Negroes
have presented themselves before this date to play, but none
have played to my knowledge."
Th is Court in Eubanks found jurisdiction to reexamine the
evidence to determine whether or not there had been racial
exclusion.
Has there been Double Jeopardy?
Th is Court has not set the final boundaries under the 14th
Amendment for successive criminal proceedings which a State
may pursue, involving the same acts charged to be the same
offense. In Hoag v New Jersey, supra, some prohibited limits
were indicated to be harrassment and attempts "to wear the
accused out by a multitude of cases with accumulated tria ls."
Th is Court said: "The question in any given case is whether
such a course has led to fundamental unfairness." Appellants
believe that such unfairness is shown in this case.
Appellants were tried upon one set of w a r r a n t s i n
Municipal-County Court. Without any final disposition having
been made of this set of warrants, the State compelled appel
lants to defend a set of indictments in Superior Court. When
these indictments in Superior Court were called for tria l, the
State did not finally dispose of them, but instead took a nol
pros with leave to proceed under them again at some future
date. Immediately the State arrested appellants upon a second
set of warrants in Municipal-County Court, and it is this set
of warrants involved in this case. The indictments in Superior
Court and the second set of warrants which are involved in
this case were all issued after the State knew that the Federal
38
Courts had by Declaratory Judgment established as the "con
stitutional rights" of appellants the identical acts and conduct
which the State seeks to establish as a crime in this case. The
State's agencies were the defendants in the Declaratory Judg
ment action.
Appellants believe that the State has exceeded the per
missible limits for successive criminal proceedings in this case.
To say the least, these successive criminal proceedings have
been sanctioned by the State "in order to allow a prosecutor
who has been incompetent or casual or even ineffective to
see if he cannot do better a second time," or in this case a
third time. (See Concurring Opinion in Brock v North Carolina,
supra.)
Sufficient Substantiality for Plenary Consideration
Appellants believe that the Federal questions presented
are sufficiently substantial to require plenary consideration,
with briefs on the merits and oral argument, for the following
reasons:
]. That it is of great public importance whether or not a
State may use its criminal statutes (and whether or not this
has occurred in this case) to punish citizens for exercising
Federal rights declared by the Federal Courts to be protected
by the Constitution of the United States under the desegrega
tion decisions of this Court. The fact that the State Courts in
this case reached a diametrically opposite result from that
reached by the Federal Courts, in considering the identical
acts of playing golf on the public Municipal Gillespie Park
Golf Course would seem to emphasize the importance of full
consideration in this Court. The Federal Courts held that ap
pellants were merely exercising their "constitutional rights"
in playing on this golf course and that the prosecuting wit
nesses in the instant case had "unlawfully denied the plain
tiffs as residents of the City of Greensboro, North Carolina,
the privileges of using the Gillespie Park Golf Course," while
the State Courts below have held that these identical acts
of appellants constitute a crime under Section 14-134 of the
General Statutes of North Carolina, which appellants contend
is unconstitutional as construed and applied in this case.
39
2. What effect under the Supremacy Clause of the Federal
Constitution State Courts must give to Declaratory Judgments
of the Federal Courts, declaring "constitutional rights" under
the desegregation decisions of this Court, presents a question
in this case to which appellants believe this Court should give
a definitive answer, including the question of whether or not
State Courts must take judicial notice of such Declaratory
Judgments in proceedings covering the identical acts with
reference to which the "constitutional rights" were declared.
So far as appellants have been able to discover, these ques
tions have not been finally determined by this Court.
3. There is involved in this case State action in turning over
to a corporation created by the State, a public municipal golf
course, to operate without any standards whatsoever set up
by statute or ordinance, the public golf course involved having
been built originally with the Federal Government providing
65 per cent of the cost and the Sponsors having agreed with
the Government to operate the golf course for the benefit
of the public during its useful life, and having agreed further
not to lease or otherwise dispose of the golf course to any
private interest during its useful life. Th is appeal presents
questions as to whether or not, without regard to racial ex
clusion, the State may use its criminal sanctions to enforce
whatever ad hoc rules and regulations such corporation and
its officers and agents may establish to admit or exclude from
the privileges of the golf course only those citizens whom the
corporation and its officers and agents wished to admit or ex
clude.
4. Appellants believe that the other Federal questions
presented in this Statement As To Jurisdiction, especially the
questions as to discrimination against Federal rights and the
question of double jeopardy, have not been sufficiently de
termined by the decisions of this Court to warrant their sub
mission without plenary consideration.
Conclusion
Wherefore, appellants pray that this Court note probable
jurisdiction in this case and grant plenary consideration, with
briefs on the merits and ora) argument, and in the alternative
40
that consideration of the question of jurisdiction be postponed
until such a consideration on the merits. Appellants pray
further that, if they should be mistaken in their belief that
this Court has jurisdiction of this appeal under 28 USC 1257
(2), then that the appeal papers in that event be treated as a
Petition for Certiorari under 28 USC 2103, and that the Peti
tion be granted. See Sweezy v New Hampshire and Pennsyl
vania v Board of Directors etc., both supra.
Counsel of Record for Appellants:
J. Alston Atkins
Other Counsel for Appellants:
Harold L. Kennedy
Annie Brown Kennedy
C. O. Pearson
Carter W . Wesley
James M. Nabrit, Jr.
Note: The Printed (Mimeographed) Record Below constitutes
Pages 1 to 107 of the Transcript of the Record on this appeal.
Therefore, page references to the Printed (Mimeographed)
Record Below likewise refer to the same pages of the Transcript
of the Record on this appeal.
41
APPENDIX "A "
NORTH CAROLINA SUPREME COURT SPRING TERM 1958
S T A T E
v.
PHILLIP COOKE
S T A T E
v.
LEON WOLFE
S T A T E
v_ No. 582 — Guilford
GEORGE S IM KIN S, JR.
S T A T E
v.
JOSEPH STURD IVEN T
S T A T E
v.
SAMUEL MURRAY
S T A T E
v.
ELIJAH H. HERRING
Appeal by defendants from Fountain, S. J., February 3,
1958 Criminal Term of Guilford (Greensboro Division).
On 2 December 1957 a warrant issued from the Greens
boro Municipal-County Court for Phillip Cooke, charging that
on 7 December 1955 he “did unlawfully and w illfu lly enter
and trespass upon the premises of Gillespie Park Club, Inc.,
after having been forbidden to enter said premises."
Sim ilar warrants were on the same day issued for each
of the other defendants.
Defendants moved in the Municipal-County Court to quash
the warrants. Their motions were overruled. They then entered
pleas of not guilty. The court, after hearing the evidence,
found each defendant guilty and imposed sentence. De
fendants appealed to the Superior Court.
42
Attorney Genera! Seawell and Assistant Attorney General
Moody for the State.
Annie Brown Kennedy, Harold L. Kennedy, W illiam A.
Marsh, Jr., and C. O. Pearson for defendant appellants.
Rodman, J. The cases were, without objection, consoli
dated for trial in the Superior Court.
Before pleading to the merits in the Superior Court, de
fendants renewed their motions to quash as originally made
in the Municipal-County Court. The motions made in apt
time were overruled by the court.
Before considering the merits of the cases, we must as
certain if defendants were properly called upon to answer
the criminal charges leveled against them. The motions to
quash assign three reasons why defendants should not be
called upon to answer the allegation that they violated the
criminal laws of the State of North Carolina.
S. v. Cooke, 246 NC 518, 98 SE 2d 885, is relied upon
for two of the three reasons assigned. An examination of
that case is necessary to assay the merits of the motions.
The crime with which defendants stand charged is a misde
meanor punishable by fine of $50 or imprisonment for thirty
days, G.S. 14-134. The Municipal-County Court has jurisdic
tion of the offense charged. In December 1955 these defend
ants were charged in warrants issuing from that court with
trespassing on the property of Gillespie Park Golf Course.
They were convicted and appealed to the Superior Court.
That court's jurisdiction of the cases then before it was deriva
tive and not original. In the exercise of its derivative juris
diction, it was confined to an inquiry as to the truth of the
charges contained in the warrants issuing from the Municipal-
County Court. It could not, in the exercise of that jurisdiction,
try defendants for a different crime. Nevertheless, the war
rants were amended in the Superior Court to charge defend
ants with a trespass on the property of Gillespie Park Golf
Club, Inc. Defendants were convicted of the crime charged in
the amended warrants. Defendants appealed their conviction
to this court. We held that the amended warrant, by substi
43
tuting another property owner, charged a different crime from
the crime originally charged, and for that reasor the Superior
Court could not, in the exercise of its derivative jurisdiction,
try defendants on the new criminal charge.
Since the conviction by a court without jurisdiction to
hear and determine the guilt or innocence of defendants was
a nullity and the sentence imposed void, defendants could
thereafter be tried when properly charged in a court having
jurisdiction. S. v. Hicks, 233 NC 51 1, 64 SE 2d 871, cert. den.
342 US 3 8 1 ,9 6 L ed 629. It is manifest there is here no double
jeopardy. Green v. United States, 355 U S _______ , 2 L ed 199,
on which defendants rely, has no application to the facts here
presented. Double jeopardy is a valid defense when estab
lished by the facts. N. C. Constitution, Art. I, sec. 17; S. v.
Mansfield, 207 NC 233, 176 SE 761. Where not disclosed by
allegations of the bill or warrant, it is not a ground to quash.
In closing the opinion in the previous appeal, the writer,
author of the opinion, said: "Defendants may, of course, now
be tried under the original warrant since the court was with
out authority to allow the amendment changing the crime
charged; or they may be tried on bills found in the Superior
Court for the crime attempted to be charged by the amend
ment."
The last clause of that opinion is also relied on in the
motion to quash. The statement, accurate as to most of the
counties of the State, is inaccurate with respect to Guilford
and the other counties enumerated in the proviso to G.S. 7-64.
The Legislature, in the exercise of its discretion, has denied to
the Superior Court sitting in the counties named in the proviso
to G.S. 7-64 the right to exercise concurrent jurisdiction with
inferior courts in the trial of misdemeanors. Because of the
limitations so imposed on the jurisdiction of the Superior Court
of Guilford County, it could not exercise original jurisdiction
of the crime charged, namely, trespass after being forbidden,
and if defendants were to be prosecuted for the trespass
presently charged, the prosecution had to originate in a court
inferior to the Superior Court. Th is is made dear in the con
curring opinion of Justice Parker, who said: " It seems plain
44
that a verdict of conviction or acquittal on the warrants in
this case as drawn would not be a bar to the new warrants
in the form to which they were changed by the amendments."
The third and final reason assigned for quashing the war
rants is the refusal of the court to take judicial notice of a
judgment in a suit by defendants against the City of Greens
boro, the Greensboro City Board of Education, and Gillespie
Park Golf Club, Inc. (Simkins v. City of Greensboro, 149 F
Supp. 562) which adjudged the plaintiffs in that suit had been
denied the privilege of using the property involved in that
litigation because of their color or race. A motion to quash is
a proper method of testing the sufficiency of the warrant,
information, or bill of indictment to charge a criminal offense.
It is not a means of testing the guilt or innocence of the de
fendant with respect to a crime properly charged. "The
court, in ruling on the motion, is not permitted to consider
extraneous evidence. Therefore, when the defect must be
established by evidence aliunde the record, the motion must
be denied." S. v. Cochran, 230 NC 523, 53 SE 2d 663; Rich
ardson v. State, 4 SW 2d 79; 27 Am Jur 695.
Since none of the reasons nor all combined sufficed to
sustain the motion to quash, the court correctly overruled the
motion and put defendants on trial for the offense with which
they were charged.
To invade property in the possession of another is a crime
under our laws. The severity of the punishment for such
invasion is measured by the character of the entry. But the
essential ingredient in the crime is possession by the person
named in the warrant. If the possession is actual, the State
need only establish that fact, but if the State fails to establish
actual possession, it must establish a right to possession which
by operation of law implies possession. S. v. Clyburn, 247
NC 455; S. v. Cooke, supra; S. v. Baker, 231 NC 136, 56 SE
2d 424.
Defendants do not controvert the fact that the corporation
named in the warrant had physical possession of the property
nor do they deny that over the protest of the agent of the
corporation they took possession. The conduct depicted and
45
not denied would suffice to convict defendants of a forcible
trespass. G.S. 14-126. It could easily have resulted in a
serious breach of the peace. The State did not, however,
charge them with that offense. It charged only the less grave
offense of entry after being forbidden. As a defense to that
charge, it is sufficient for defendants to establish that they
entered under a bona fide belief of a right to so enter,
which belief had a reasonable foundation in fact. S. v. Pag-
gart, 170 NC 737, 87 SE 31; S. v. W ells, 142 NC 590; S. v.
Fisher, 109 NC 817, but the burden is on the defendant to
establish facts sufficient to excuse his wrongful conduct. S. v.
Durham, 121 NC 546; S. v. W ells, supra. There was nothing
in the State's evidence showing or tending to show any right
on the part of defendants to enter after having been forbidden
to do so. Hence the court correctly refused to allow defend
ants' motion for nonsuit.
Defendants offered in evidence a lease dated 19 April
1949 from the Board of Trustees of the Greensboro City Ad
ministrative Unit to Gillespie Park Golf Club, Inc. Th is lease
recited that the property therein described had in 1947 been
leased to the City of Greensboro so that the city might operate
a golf course thereon, that Greensboro had agreed to cancel
its rights under the lease, that lessor was of the opinion that
it would not need the property for school purooses during
the next ensuing five years and "since a nine-hole golf course
has been laid out thereon, the Board of Trustees is of the
opinion that it is advisable to lease the property to the Golf
Club in order that its use as a golf course may be continued
during the term of this lease, such use being, in the opinion of
the Board of Trustees, a public or semioublic use." The lease
was for a period of five years at a rental of 31000 per annum,
but with a provision that lessor might cancel upon sixty days'
notice if the property was needed for school purposes or if
lessor desired to sell. An extension agreement was put in
evidence extending lessee's term. The asserted trespass oc
curred during the extended term.
There is evidence that lessee had, during its term, ex
pended more than $100,000 in enlarging the course from a
nine-hole course to an eighteen-hole course, constructing a
46
club house, and making other improvements. Defendants of
fered in evidence by-laws adopted by lessee. The only two
which may have any pertinency to this action are sections 1 and
2 of article 1. They provide: "SEC TIO N 1 — Membership.
Membership in this corporation shall be restricted to members
who are approved by the Board of Directors for membership
in this Club. There shall be two types of membership,- one,
the payment of a stipulated fee of $30.00 or more, plus tax,
shall cover membership and greens fees. The other type of
membership shall be $1.00, plus tax, but this type of member
shall pay greens fees each time he uses the course. The greens
fees and the amount of membership fees may be changed by
the Board of Directors at any time upon two-thirds vote of the
members of the Board. SECTION 2 — Use of Golf Facilities.
The golf course and its facilities shall be used only by mem
bers, their invited guests, members in good standing of other
golf clubs, members of the Carolina Golf Association, pupils of
the Professional and his invited guests."
The City Administrative Unit, a governmental agency sepa
rate and distinct from the City of Greensboro, had no authority
to operate recreational facilities which were not in some way
related to the operation of the public school system. The
Legislature created both County and City Administrative Units
"fo r purposes of school administration." G.S. 115-4. The
Administrative Unit, having acquired more land than was
presently needed for school purposes, had legislative authority
to lease the surplus. G.S. 115-126(5), Cline v. Hickory, 207
NC 125, 176 SE 250, 38 Am Jur 169. In the exercise of its
discretion it could in good faith lease for a public or a private
purpose. Prior to its lease to Gillespie Park Club, it had leased
the property to the City of Greensboro. The City had ap
parently used it for recreational purposes and had erected
a golf course thereon. When that lease terminated, the school
authorities leased to a private corporation, but in their lease
were careful to state that lessee was taking and would use
it for public or semipublic purposes, namely, the operation of
a golf course. Having expressly declared that the use which
the lessee would make was a public or semipublic use, the
law w ill presume the parties intended and contemplated that
47
the property should be used without unlawful discrimination
because of race, color, religion, or other illegal classification.
" It is an elementary rule of construction that parties w ill be
presumed to have used language effectuating a lawful pur
pose rather than one which is unlawful." Beasley v. R.R., 145
NC 272; Newberry v. City of Andalusia, 57 So 2d 629. Since
the operator of the golf club was charged with making a
public or semipublic use of the property, it could not deny the
use of the property to citizens simply because they were
Negroes. This Court gave definite recognition to the principle
of equality of treatment as between whites and Negroes near
ly three-quarters of a century ago. Puitt v. Commissioners,
94 NC 709.
Dawson v. Mayor and City Council of Baltimore City, 220
F 2d 386; Lawrence v. Hancock, 76 F Supp. 1004; Tate v.
Department of Conservation and Development, 133 F Supp
53; Culver v. City of Warren, 83 NE 2d 82, cited and relied
upon by appellants are but applications of an established
legal principle to the factual situations found to exist in each
of those cases. Th is case in no wise questions the soundness
of the legal principles there enunciated.
Since the decision in Brown v. Board of Education, 347
US 483, 98 L ed 873, 74 S Ct 686, separation of the races in
the use of public property cannot be required. Judge Foun
tain expressly charged the jury that defendants could not be
discriminated against because of color. He charged: "Now
as to that question which arises upon the evidence, I instruct
you then, ladies and gentlemen of the jury, that under the
law as determined by the United States Court and as pro
nounced by them, the Gillespie Gojf Club, Inc., by leasing the
land from the City of Greensboro to use as a golf course
was subjected to the same obligations as the City of Greens
boro would have been had it operated a golf course itself.
It was subjected to the same rights as the City would have had,
the same obligations and same responsibilities; that is to say,
the law would not permit the City and, therefore, would not
permit its lessee, the Gillespie Park Golf Club, Inc., to dis
criminate against any citizen of Greensboro in the mainten
ance and operation and use of a golf course. It could not
48
exclude either defendant because of his race or for any other
reason applicable to them alone; that is to say, they were
entitled to the same rights to use the golf course as any other
citizen of Greensboro would be, provided they complied with
the reasonable rules and regulations for the operation and
maintenance and use of the golf course. They would not be
required to comply with any unreasonable rules and regula
tions for the operation and maintenance and use of the golf
course."
It w ill be observed that Judge Fountain, in his charge,
treated the lease as though it were made by the City of
Greensboro in the exercise of one of its corporate functions.
In fact the lease was made by the school unit which had no
duty or right to operate a golf course but which voluntarily
provided for public use.
The court further charged: " If the corporation organized
and known as the Gillespie Park Golf Club, Inc., if it main
tained property and operated and used it for a golf course
belonging to the City of Greensboro, and if the defendant
was a resident of the City of Greensboro, then he had the
same right to become a member of the golf club as any other
resident of Greensboro, if he was a member of another golf
club which had a reciprocal agreement with the Gillespie Park
Golf Club to permit members on one course or members of
one club playing on the other course, then such defendant
and each of them had the same right or had the right to play
upon the Gillespie Park Course. If the defendants, or either of
them, were guests of some members of the Gillespie Park
Golf Club, then they had a right to play upon that course.
"In other words, ladies and gentlemen of the jury, they
had the same right under the laws as interpreted by the
United States Courts to play on the golf course as any other
citizen of the City of Greensboro provided they complied with
the reasonable rules and regulations designed for the orderly
maintenance and use of the golf course by the citizens of
Greensboro."
He further charged, after stating defendants' contentions
with respect to their right to play: " I instruct you, members of
49
the jury, if a party entering upon the land has a legal right
to do so, of course he may not be convicted of a trespass."
Defendants moved to set aside the verdict of guilty. As
the basis for their motion they rely on Simkins v. City of
Greensboro, supra, decided by the United States District
Court in March 1957. Although defendants had the record in
that case identified, they did not offer it in evidence. It is
not a part of the record presented to us. Our knowledge of
the facts in that case is limited to what appears in the pub
lished opinion.
Examining the opinion, it appears that ten people, s ix of
whom are defendants in this action, sought injunctive relief on
the assertion that Negroes were discriminated against and
were not permitted to play on what is probably the property
involved in this case. We do not know what evidence plaintiffs
produced in that action. It is, however, apparent from the
opinion that much evidence was presented to Judge Hayes
which was not before the Superior Court when defendants
were tried. It would appear from the opinion that the entry
involved in this case was one incident on which plaintiffs there
relied to support their assertion of unlawful discrimination, but
it is manifest from the opinion that that was not all of the
evidence which Judge Hayes had. We are left in the dark as
to other incidents happening prior or subsequent to the con
duct here complained of, which might tend to support the
assertion of unlawful discrimination. On the facts presented
to him, Judge Hayes issued an order enjoining racial discrimi
nation in the use of the golf course. Presumably that order
has and is being complied with. No assertion is here made to
the contrary.
To support their motion, defendants say in their brief:
"That to allow the verdict to stand would amount to a collateral
attack on the Federal decision." The mere assertion that a
court of this State has not given due recognition to a judg
ment rendered by one of our Federal courts merits serious
consideration.
The State challenges the assertion that there has been an
attack, collateral or otherwise, on the judgment rendered by
50
the District Court. It maintains that the questions to be an
swered are these: (1) Should a court take judicial knowledge
of facts found at another time by another court in another
action; and if this question be answered in the affirmative,
(2) is the State, in a criminal prosecution, concluded by facts
found in a civil action to which it is not a party?
Since defendants for reasons best known to themselves
elected not to offer in evidence the record in the Federal
court case, it is apparent that the first question propounded
must be answered. Unless we are to depart from previous
adjudications by this Court and sim ilar decisions by the Fed
eral courts and the courts of sister States, the answer to that
question must be no.
Speaking with respect to judicial notice, Chief Justice
Marshall said: "The looseness which would be introduced into
judicial proceedings would prove fatal to the great principles
of justice, if the judge might notice and act upon facts not
brought regularly into the cause. Such a proceeding, in
ordinary cases, would subvert the best established principles,
and overturn those rules which have been settled by the wis
dom of ages." U.S. v. W ilson, 7 Pet. 150, 8 L ed 640.
Mr. Justice M iller said: "W hile it is certainly true that
the pendency of a suit in one court is not a defense, though
it may sometimes be good in abatement, to another suit on
the same cause of action in another court of concurrent ju ris
diction, it may be considered as established that when a
judgment is recovered against the defendant in one of those
courts, if it is a full and complete judgment on the whole
cause of action, it may be pleaded as a defense to the action
in that court where it is pending and undecided. Neither
court would be bound to take notice of the judgment in the
other court judicially." Schuler v. Israel, 120 US 506, 30
L ed 707. To like effect see S. v. McMilliam, 243 NC 775,
92 SE 205; Reid v. Holden, 242 NC 408, 88 SE 2d 125;
Hampton v. Pulp Co., 223 NC 535, 27 SE 2d 538; Daniel v.
Bellamy, 91 NC 78; Bluthenthal v. Jones 208 US 64, 52 L ed
390; W illiam s-Perry v. Reeder, 17 N W 2d 98; Naffah v. City
Deposit Bank, 13 A 2d 63; Belyeu v. Bowman, 41 So 2d 290;
51
James v. Unknown Trustees, Etc., 220 P 2d 831; Swak v. De
partment of Labor & Industries, 240 P 2d 560; Paridy v. Cater
p illar Tractor Co., 48 F 2d 166; Morse v. Lewis, 54 F 2d 1027;
Flelms v. Holmes, 129 F 2d 263; Atlantic Fruit Co. v. Red Cross
Line, 5 F 2d 218; Polzin v. National Co-op Refinery Ass'n.,
266 P 2d 293; Divide Creek Irrig. Dist, v. Hollingsworth, 72
F 2d 859, 96 ALR 937, with annotations,- White v. Central
Dispensary & Emergency Hospital, 99 F 2d 355, 1 19 ALR 1002;
Robinson v. Baltimore & O. R. Co., 222 US 506, 56 L ed 288;
31 CJS 627; 20 Am Jur 102.
Because the judgment in the case of Simkins v. Greensboro
was not in evidence, the court had no knowledge in a legal
sense of any facts there determined, and could make no
pronouncement of law with respect to facts which were not
in evidence. Judge Hayes' published opinion was available.
That opinion is a declaration of the law on the facts which
Judge Hayes found.
Since the court was not required to take judicial notice
of the judgment in the civil action, we are not called upon to
determine the effect which should have been given if offered
in evidence.
When the doctrine of collateral estoppel should be applied
is not always easily solved. In Van Schuyver v. State, 8 P 2d
688, it was held that a judgment in a civil action between
prosecuting witness and defendant which determined the
ownership of domestic fowl could not be used by the de
fendant in a criminal action to estop the State from prose
cuting him on a charge of larceny. Sim ilar conclusions have
been reached in other jurisdictions with respect to the owner
ship of property. State v. Hogard, 12 Minn 293; People v,
Leland, 25 NYS 943; H ill v. State, 3 SW 764 (Tex.)
It is said in the annotation to Mitchell v. State, 103 AM
St Rep 17: "When the previous judgment arose in a case in
which the state or commonwealth was the prosecutor or
plaintiff and the defendant in the case at bar was also the
defendant, and the judgment was with reference to a subject
which is material to the case at bar, the doctrine of res judicata
applies, (citations) But where the judgment to which it is sought
52
to apply the doctrine of res judicata was rendered in a civil
proceeding to which the state was not a party, or in a criminal
proceeding to which the defendant in the case at bar was
not a party, the doctrine of res judicata does not apply,
(citations)"
The Supreme Court of the United States has recognized
and applied the law as there announced to differing factual
situations. Compare U. S. v. Baltimore & O. R. Co., 229 US
244, 57 L ed 1169, and W illiam s v. N. C„ 325 US 226, 89 L ed
1577. Other illustrations may be found in: S. v. Dula, 204
NC 535, 168 SE 836; Warren v. Ins. Co., 215 NC 402, 2 SE
2d 17; Powers v. Davenport, 101 NC 286; S. v. Boland, 41
N W 2d 727; People v. McKenna, 255 P 2d 452; S. v. Morrow,
75 P 2d 737; S. v. Cornwell, 91 A 2d 456; S. v. Greenberg,
109 A 2d 669. Extensive annotations appear as a note to
Green v. State, 87 ALR 1251; 30A Am Jur 518. Defendants
were not, as a matter of right, entitled to have the verdict set
aside.
The exceptions to the admission and exclusion of evidence
have been examined. We have found none which indicates
prejudicial error or appears to warrant discussion.
We find
No error.
53
JUDGMENT - SUPREME COURT OF NORTH CAROLINA
SPRING TERM, 1958 NO. 582 GUILFORD COUNTY
S T A T E
vs.
Phillip Cooke, Leon Wolfe, George Simkins, Jr.,
Joseph Sturdivent, Samuel Murphy, Elijah H. Herring
This cause came on to be argued upon the transcript of
the record from the Superior Court Guilford County: Upon
consideration whereof, this Court is of opinion that there is
no error in the record and proceedings of said Superior Court.
It is therefore considered and adjudged by the Court here
that the opinion of the Court, as delivered by the Honorable
W illiam B. Rodman Justice, be certified to the said Superior
Court, to the intent that the proceedings be had therein in
said cause according to law as declared in said opinion. And
it is considered and adjudged further, that the defendants and
surety to the appeal bond, Southern Fidelity Mutual Insurance
Company, do pay the costs of the appeal in this Court incurred,
to wit, the sum of One Hundred and 20/100 dollars ($100.20),
and execution issue therefor.
A TRUE COPY
Adrian Newton
Clerk of the Supreme Court.
A P P E N D IX " B "
54
A P P E N D IX "C "
S T A T E
vs.
PHILLIP COOKE
S T A T E
vs.
LEON WOLFE
S T A T E
vs.
GEORGE SIM KIN S, JR.
S T A T E
vs.
JOSEPH STURD IVEN T
S T A T E
vs.
SAMUEL MURRAY
S T A T E
vs.
ELIJAH H. HERRING
(Filed 28 June, 1957.)
Appeals by defendants from Burgwyn, E. J., December
1956 Criminal Term of Guilford (Greensboro Division).
On 7 December 1955 s ix warrants issued from the Greens
boro Municipal-County Court on affidavit of Ernest Edwards
charging the defendants therein named "did unlawfully and
w illfu lly trespass upon the property of Gillespie Park Golf
Course, Greensboro, North Carolina, after having been for
bidden to do so." The cases were heard in the Municipal-
County Court on 6 February 1956. Each defendant was found
guilty, and from the sentence imposed each appealed to the
Superior Court. The cases were by consent consolidated for
trial in the Superior Court.
Ernest Edwards, on whose affidavit the warrants issued,
testified: "I'm employed as a golf professional manager of
55
the Gillespie Park Golf Club, incorporated. The golf club is an
18-hole club with club house. It's located on Asheboro Street
and Randolph Avenue on the new Super Highway . . . . Back
on the 7th day of December, 1955, I was employed as mana
ger of Gillespie Park Golf Course, Incorporated. At that time
one of my functions was to operate the Gillespie Park Golf
Course."
He was asked: "On that date, the 7th day of December,
1955, state whether or not the corporation was in possession
of the Gillespie Park Golf Course. A. It was."
Witness testified that defendants, on the date named,
over his protest, played golf on the course.
When the State rested, defendants moved for nonsuit.
Before the motion was heard, the solicitor asked the court
to reopen the case so that he might make a motion to amend
the warrants. His request was granted; whereupon, over
the objection of defendants, the warrants were amended to
read: "D id unlawfully and w illfu lly enter and trespass upon the
premises of Gillespie Park Golf Club, Inc., after having been
forbidden to enter said premises and not having a license to
enter said premises against the statute in such cases made and
provided and against the peace and dignity of the State."
After the warrants were amended, defendants offered a
lease by the City of Greensboro to Gillespie Park Golf Course,
Inc., dated 7 April 1949, for a term of one year, of the city's
club house and golf course. Renewals of this lease were of
fered in evidence, the last renewal bearing date 2 April 1953
extending lessee's term to 6 April 1958.
The jury returned a verdict of guilty as to each defendant.
Judgments were entered on the verdicts and defendants ap
pealed.
Attorney-General Patton and Assistant Attorney-General
Giles for the State.
J. Kenneth Lee, Major S. High, C. O. Pearson, and W illiam
A. Marsh, Jr., for defendant appellants.
56
RODMAN, J. The crime of which defendants stand con
victed is the entrance without a bona fide claim of right on
land in the possession of another after having been forbidden
to so enter. The act is made a crime by statute, G.S. 14-134.
The statute carries the heading "Trespass on land after being
forbidden . . . "
. . every unauthorized, and therefore unlawful, entry into
the close of another, is a trespass." Dougherty v. Stepp, 18
N.C. 371; Armstrong v. Armstrong, 230 N.C. 201, 52 S.E. 2d
362; Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804; Brame v.
Clark, 148 N.C. 364.
By the common law an unauthorized entry on the lands
of another was redressed by civil action, but where the
entry was made by means of force or threats apt to disrupt
the peace, the trespass was made a crime in England prior to
S ir Walter Raleigh's ill-fated attempt to establish a colony on
our shores. Such a disturbance of possession is a statutory
crime under our laws. G.S. 14-126. To convict one of the
crime of forcible trespass, it is essential for the State to estab
lish an entry with such force as to be "apt to strike te rro r" to
the prosecutor whose possession was disturbed. It is necessary
to allege and establish actual possession in the prosecutor. S. v.
Simpson, 12 N.C. 504; S. v. McCauless, 31 N.C. 375; S. v.
Ray, 32 N.C. 39; S. v. Laney, 87 N.C. 535; S. v. Davenport,
156 N.C. 597, 72 S.E. 7. Whether the right to possession was
a good defense at common law was left unsettled in S. v. Ross,
49 N.C. 315.
In 1866 the Legislature made it a crime to invade posses
sion even though the forbidden entry was made without force
or threats. Good faith in making the entry is a defense. S. v.
W ells, 142 N.C. 590; S. v. Crosset, 81 N.C. 579; S. v. House,
71 N.C. 518; S. v. Hanks, 66 N.C. 612. But possession is an
essential element of the crime. If the State fails to establish
that prosecutor has possession (actual or constructive) no crime
has been established. S. v. Baker, 231 N.C. 136, 56 S.E. 2d
424; S. v. Faggart, 170 N.C. 737, 86 S.E. 31; S. v. Yellowday,
152 N.C. 793, 67 S.E. 480; S. v. Whitehurst, 70 N.C. 85.
Where an interference with the possession of property is
57
a crime, it is necessary to allege in the warrant or bill of in
dictment the rightful owner or possessor of the property, and
the proof must correspond with the charge. If the rightful
possession is in one other than the person named in the war
rant or b ill, there is a fata! variance. Such has been the hold
ing in forcible trespass, S. v. She rrill, 81 N.C. 550; in trespass
after being forbidden, S. v. Baker, supra, and in malicious
injury to property, S. v. Hicks, 233 N.C. 31, 62 S.E. 2d
497; S. v. Mason, 35 N.C. 341; in larceny, S. v. Law, 227
N.C. 103, 40 S.E. 2d 699; S. v. Harris, 195 N.C. 306, 141
S.E. 883; S. v. Herbert, 185 N.C. 760, 118 S.E. 6. See also
Adams v. State, 119 So. 189 (Miss.); Brown v. State, 85 S.E.
262 (Go.); 87 C.J.S. 1113; 42 C.J.S. 1054; 27 Am. Jur 649.
On the appeal defendants could only be tried for the
crime for which they were convicted in the Municipal-County
Court, v iz., disturbing the possession of Gillespie Park Golf
Course. The Superior Court could try them for a different
crime upon a bill found or waived. S. v. M ills, 242 N.C. 604,
89 S.E. 2d 141; S. v. Banks, 241 N.C. 572, 86 S.E. 2d 76; S. v.
Hall, 240 N.C. 109, 81 S.E. 2d 189; S. v. Thomas, 236 N.C.
454, 73 S.E. 2d 283; S. v. M ills, ante, 237.
The Superior Court has broad power to allow amendments
to warrants. Th is power to amend is the power to make ac
curate and sufficient the statement of the crime asserted or at
tempted to be asserted. The court has no power to permit a
warrant to be amended so as to charge an entirely different
crime from the one on which defendant was convicted in the
lower court. S. v. McHone, 243 N.C. 231, 90 S.E. 2d 536; S. v.
Clegg, 214 N.C. 675, 200 S.E. 371; S. v. Goff, 205 N.C. 545,
172 S.E. 407; S. v. Taylor, 118 N.C. 1262.
When the court permitted the warrants to be amended so
as to charge a trespass on property of a person (Gillespie
Park Golf Club, Inc.) other than property of the person named
in the original warrant, it substituted one criminal charge for
another criminal charge. Th is different crime could only be
charged by bill found or waived. The defendants have not
waived bills.
The record discloses the fatal variance. It is our duty to
58
note it. S. v. Scott, 237 N.C. 432, 75 S.E. 2d 154; S. v. Stone-
street, 243 N.C. 28, 89 S.E. 2d 734; S. v. Strickland, 243 N.C.
100, 89 S.E. 2d 781. Defendants may, of course, now be tried
under the original warrant since the court was without au
thority to allow the amendment changing the crime charged;
or they may be tried on bills found in the Superior Court for
the crime attempted to be charged by the amendment. S. v.
Strickland, supra; S. v. Hicks, 233 N.C. 511, 64 S.E. 2d 871;
S. v. She rrill, 82 N.C. 694.
The judgment is
Arrested.
Parker, J., concurring: In considering the amendments to
the warrants the difficulty is in determining whether the
amendments are as to a matter of form or go to the substance
of the charge. I find in Annotations in 7 A.L.R., p 1526 et
seq., and in 68 A.L.R., p. 930 et seq., the statement that "the
allowance by the court of an amendment to an indictment as
to the name of the person alleged therein to be the owner
of the property which is the subject of the crime is generally
authorized, as the correction of a defect in form." In support
of the text, cases are cited from Iowa, Louisiana, Mississippi,
New York, Pennsylvania, Vermont, Canada and England. An
examination of a number of the cases cited discloses that the
decisions were based on statutes of the various jurisdictions
permitting in substance an amendment when a variance de
velops between the allegations in an indictment and the testi
mony as to the ownership of property.
Our statute G.S. 15-148—Manner of alleging joint owner
ship of property—does not permit the amendments allowed in
the instant case. Nor do I know of any statute of ours that
does so.
Warrants are, in most instances, drafted by laymen who
are not learned in the technicalities of the law, and are not
familiar with the necessity of stating in the warrant the correct
name of the owner of property. The essence of the offense
here is a trespass upon land after being forbidden. G.S.
14-134. The correct name of the lessee of the golf course was
59
not stated in the original warrants. A study of the Record
and defendants' brief discloses that the amendment to the
warrants so as to allege the correct name of the lessep of the
golf course did not affect the defense, or take the defendants
at a disadvantage in any respect, as shown by the fact that
their brief does not contend the allowance of the amendments
to the original warrants was error. Yet, because of the defect
in the name of the lessee, and by reason of the fact that we
have no statute to permit an amendment in such a case, the
judgment is arrested. The time of the trial has been wasted,
and if the State desires to proceed further, it must start anew
with new warrants.
One test to determine whether the change made was
material is whether a verdict of conviction or acquittal on the
warrant as drawn would be a bar to a warrant in the form
in which it stood after the amendment. Com. v. Snow, 269
Mass. 598, 169 N.E. 542, 68 A.L.R. 920. It seems plain that
a verdict of conviction or acquittal on the warrants in this case
as drawn would not be a bar to the new warrants in the form
to which they were changed by the amendments. It follows
from these considerations that the change made in the war
rants was one of substance and not of form.
in my opinion, the General Assembly, in its wisdom, should
consider the advisability of enacting a statute that warrants
issued by Justices of the Peace, Municipal or County Criminal
Courts, can be amended on or before the tria l, when there
shall appear to be any variance between the allegations in
the warrant and the evidence in setting forth the ownership
of property, if the court should be of opinion that the amend
ment w ill not prejudice the defendant in his defense. Various
states have done so, as appears in the cases cited in the A.L.R.
Annotations referred to above.
60
APPENDIX "D "
IN THE SUPREME COURT OF THE STA TE OF
NORTH CAROLINA
Phillip Cooke, Leon Wolfe, George Simkins, Jr.,
Joseph Sturdivant, Samuel Murray, and Elijah H. Herring,
Appellants
v.
State of North Carolina
No. 582 — Guilford
NOTICE OF APPEAL TO THE SUPREME COURT OF THE
UN ITED STA TES
I. Notice is hereby given that Phillip Cooke, Leon Wolfe,
George Simkins, Jr., Joseph Sturdivant, Samuel Murray, and
Elijah H. Herring, the appellants above named, hereby ap
peal from the final order of the Supreme Court of North
Carolina affirming and finding no error in the judgment of
conviction and sentence of said appellants, which judgment
and sentence were entered by the Superior Court of Guilford
County, North Carolina, on February 10, 1958, and the
opinion of the Supreme Court of North Carolina affirming
and finding no error in said judgment of conviction and sen
tence having been filed in the office of the Clerk of the Su
preme Court of North Carolina on June 4, 1958, and the
final order pursuant to said opinion having been entered as
of the same date as said opinion.
Th is appeal is taken pursuant to 28 USC Sec. 1257 (2).
Appellants have been tried twice upon two separate and
successive sets of warrants in the Municipal-County Court of
Greensboro, Guilford County, North Carolina, for the same
acts of playing golf on the public municipal Gillespie Park
Golf Course, the crime charged on each occasion being that
of simple trespass under Section 14-134 of the General
Statutes of North Carolina (1953). The first trial resulted in
conviction and sentence to a fine of $15. On appeal and trial
de novo in the Superior Court of Guilford County, North Caro
lina, there was a jury trial and verdict of guilty and a sentence
61
of 30 days in jail. On appeal to the Supreme Court of North
Carolina the judgment of the Superior Court was arrested,
not upon any ground set up by appellants, but because the
Supreme Court found that the Superior Court lost jurisdiction
and its actions were a nullity when it permitted the warrants
to be amended to change the name of the prosecuting witness
from Gillespie Park Golf Course to Gillespie Park Golf Club,
Inc. No further action was taken either by the Supreme Court
or the Superior Court with reference to the original warrants
and judgment and sentence in the Municipal-County Court.
Thereafter, on December 2, 1957, entirely new warrants
charging appellants with the same offense were issued in
the Municipal-County Court of Greensboro, Guilford County,
North Carolina. The trial in Municipal-County Court resulted
again in conviction and the sentence was 30 days in jail, to
be suspended upon the payment by each appellant of a fine
of $1. Upon a trial de novo upon appeal to the Superior
Court of Guilford County, North Carolina, there was a jury
verdict of guilty and the Court's judgment and sentence of
15 days in jail. On appeal the Supreme Court of North Caro
lina affirmed and found no error in the tria l, judgment and
sentence.
Appellants are presently enlarged upon bail in the sum
of $200 each and a stay of execution by a Justice of the
Supreme Court of North Carolina.
II. The Clerk of the Supreme Court of North Carolina w ill
please prepare a transcript of the record in this cause, for
transmission to the Clerk of the Supreme Court of the United
States, and include in said transcript the following:
1. The Record in this cause as printed and filed for use
of the Supreme Court of North Carolina upon appeal during
the Spring Term of 1958, No. 582, coming from the Superior
Court of Guilford County, North Carolina, and all other
papers which were before said Supreme Court upon said
appeal.
2. The Opinion of the Supreme Court of North Carolina
which was filed in this cause on June 4, 1958.
62
3. The final order affirming and finding no error in the
proceedings of the Superior Court of Guilford County, entered
as of June 4, 1958.
4. Any and all orders staying execution in this cause.
5. Th is Notice of Appeal to the Supreme Court of the
United States, with Proof of Service of same.
III. The following questions are presented by this appeal:
1. Is Section 14-134 of the General Statutes of North
Carolina (1953), as construed and applied by the State
Courts in this case, unconstitutional under the Constitution of
the United States, including the Supremacy Clause (Art. 6, Cl.
2), and also including the Fourteenth Amendment as inter
preted by the United States District Court for the Middle
District of North Carolina in George Simkins et al. v. City of
Greensboro et al., 149 Fed. Supp. 562, and by the Court of
Appeals for the Fourth Circuit affirming in City of Greens
boro et al. v. George Simkins et al. 246 Fed. 2d 425?
2. Could the State agencies in this case, namely, City of
Greensboro, Greensboro City Board of Education, and G il
lespie Park Golf Club, Inc., consistent with the Equal Protec
tion Clause of the Fourteenth Amendment of the Constitution
of the United States, promulgate written regulations convert
ing the public municipal Gillespie Park Golf Course, originally
constructed with the Federal Government providing 65 per
cent of the cost, into a private-club membership-only golf
course, excluding all citizens who did not meet the member
ship rules? and do the membership rules as set out in the
record thus limiting the use and enjoyment of this public
municipal golf course, having been promulgated by State
agencies, violate the Equal Protection Clause of the Fourteenth
Amendment? and, said State agencies having adopted a
written rule making eligible to play on said public municipal
golf course "members in good standing of other golf clubs,"
could the State agencies operating the golf course, consistent
with the Equal Protection Clause of the Fourteenth Amendment,
arb itrarily in practice limit use and enjoyment of the golf
course to those "members in good standing of other golf clubs"
63
whose golf clubs were members of the Carolina Golf Associa
tion?
3. Was it the duty of the State Courts in this case to accept
as true the allegations asserting appellants' Federal rights in
their motion to quash the warrants and in their motion to set
aside the verdict and for judgment notwithstanding the verdict,
in view of the fact that the State did not answer to deny or
controvert any of said allegations?
4. In its opinion in this case the Supreme Court of North
Carolina having said, with reference to the Federal case cited
in Question No. 1 above, that "O ur knowledge of the facts
in that case is limited to what appears in the published
opinion," and having also said that " It would appear from
the opinion that the entry involved in this case was one in
cident on which plaintiffs there relied to support their as
sertion of unlawful discrimination," was it the duty of the
State Courts in this case, under the Supremacy Clause (Art.
6, Cl. 2) of the Constitution of the United States, to consider
and give effect to all of the facts set forth in said opinion of
the Federal Court, and having taken judicial notice of said
opinion, was it also the duty of the State Courts under the
Supremacy Clause to take judicial notice of the Federal Court's
Findings of Fact, Conclusions of Law, and Declaratory Judg
ment, in order to determine the extent to which the acts and
conduct held by the State Courts to be a crime in this case
were held by the Federal Courts to be protected by the Four
teenth Amendment to the Constitution of the United States?
5. The Supreme Court of North Carolina having held on
May 7, 1958 in State v. Perry, 248 N.C. 334, that the uncon
stitutionality of a jury panel under the Constitution of the
United States could be shown by evidence upon a motion to
quash the indictment, was it a discrimination against the
Federal rights asserted by appellants in this case for the
State Courts to deny the request made by the appellants in
their motion to quash the warrants and again in their motion
to set aside the verdict, for an opportunity to present the
record in the Federal case cited in Question No. 1 above
upon the hearing of said motions?
64
6. Was it a d iscrimination against and an infringement
upon the Federal rights asserted by appellants in this case
for the State Courts to refuse to give effect to Finding of
Fact No. 30 and Finding of Fact No. 33 in the Federal case
cited in Question No. 1 above, both of which Findings of
Fact were quoted verbatim in appellants' motion to set aside
the verdict, and the State not having answered to deny or
controvert the allegations of said motion in any way?
7. The Supreme Court of North Carolina having held
consistently prior to this case that said Section 14-134 of
the General Statutes of North Carolina did not apply to pub
lic lands but only to "the possession or right of possession of
real estate privately held," (State v. Clyburn, 247 N.C. 455),
was it a discrimination against the Federal rights asserted by
appellants for the North Carolina Supreme Court to depart
from this rule and hold that the statute did apply to the
alleged trespass upon the public municipal golf course involved
in this case?
8. The Supreme Court of North Carolina having approved
in its opinion in this case the charge to the jury that " i f a
party entering upon the land has a legal right to do so, of
course he may not be convicted of a trespass," and the De
claratory Judgment in the Federal case cited in Question No. 1
above having declared that the interference with and causing
appellants to be arrested for playing on the golf course "was
done solely because of the race and color of the" appellants
"and constitutes a denial of their constitutional rights," (said
Declaratory Judgment being quoted verbatim in appellants
motion to set aside the verdict, and the State having not
answered to deny or controvert said motion), was it a violation
of the duty of the State Courts under the Supremacy Clause
and of the rights of appellants under the Fourteenth Amend
ment of the Constitution of the United States for the Supreme
Court of North Carolina to hold in this case that the State
Courts were not concluded by the Federal Court's determina
tion of the "constitutional rights" of the appellants, and to
submit to the State's jury the determination of this Federal
"legal right" of appellants under the Constitution of the United
States to play on this public municipal golf course?
65
9. The Supreme Court of North Carolina having gone
outside the record before it to find in its opinion in this case
the true fact concerning the Federal case cited in Question
No. ] above that "defendants had the record in that case
identified," did the Equal Protection Clause of the Fourteenth
Amendment require the Court to note the further true fact
that the records in said Federal case were in fact identified
as "Defendants' Exhibits 6 and 7 ," in order that the Court
might see the further true fact that said Exhibits 6 and 7
were in fact offered in evidence and their admission refused
by the Tria l Judge, as shown on Page 77 of the printed record
before the Supreme Court of North Carolina?
10. Appellants having been tried twice upon two separate
and different sets of warrants for the same alleged offense
in the Municipal-County Court of Greensboro, Guilford County,
North Carolina, and the first set of warrants and the convic
tion and sentence thereunder being still outstanding and un
disposed of at the time of the issuance of the second set of
warrants and the tria l and conviction thereunder, does the
second tria l and conviction and sentence amount to the kind
of double jeopardy which the 14th Amendment forbids as a
denial of due process?
Dated this 27th day of August, 1958.
Harold L. Kennedy
C. O. Pearson
PROOF OF SERVICE
I, T. W. Bruton, Assistant Attorney General of the State
of North Carolina, hereby acknowledge receipt of a copy of
the foregoing Notice of Appeal to the Supreme Court of
the United States, this the 27 day of August, 1958.
T. W . Bruton
66
APPENDIX "E "
FIND ING S OF FACT AND CONCLUSIONS OF LAW
Upon due consideration of the evidence and argument
of counsel the court makes the following findings of fact:
1. In 1927 the school board purchased approximately
70 acres of land in the southwestern part of the city for school
purposes, this land being thereafter known as the Gillespie
school property or land. Th is was more land than was im
mediately needed for school purposes, but the excess was
held for future needs. In 1940 the City had an opportunity
to secure from the Works Progress Administration 6 5 % of
the cost of constructing a nine-hole public golf course for the
citizens of Greensboro. An arrangement was thereupon made
between the City and the school board whereby the school
board, sometime between August 20, 1940, and July 6, 1942,
leased to the City a portion of the Gillespie School property
in order that a public golf course might be constructed and
operated thereon. The lease was made for a term of five
years and thereafter from year to year, subject to the provision
that it might be terminated by either party thereto upon ninety
days written notice to the other, but that such right should not
be exercised by the school board during the first five years
unless the land was needed for school purposes. The rental
was fixed at $1.00 a year, plus $40.00 a month for the dwell
ing house located on the land beginning when the house was
made available for the City. The lease provided that the city
should have full charge of the golf course and the operation
thereof without interference on the part of the school board
and that the city might make such charges for the use thereof
as it might deem advisable.
(Note. Th is lease is the school board's Exhibit No. 1. It
is not dated, and there is nothing to show when it was
executed except by reference to the acknowledgments.
It was acknowledged for the school board on August 20,
1940, and for the city on July 6, 1942. For that reason
the lease is referred to as having been executed between
August 20, 1940, and July 6, 1942. For findings suggested
67
in the above paragraph, see also paragraph 15(b) of the
school board's answer and the stipulation relating there
to.)
2. The golf course was constructed and was operated un
der that lease by the city until April 1, 1947, when a new
lease to the city was executed by the school board, the
provisions of the lease being substantially as in the original
lease, except that the rental was fixed at $1,000.00 a year,
and the term of the lease was for one year and thereafter
from year to year. On April 7, 1949, that lease was in effect
and the then term would have expired April 1, 1950.
(See school board's Exhibit No. 2, also paragraph 15(b)
of the school board's answer and the stipulations relating
thereto.)
3. About this time the city constructed or assisted in the
construction of an additional nine holes of the golf course
upon a tract of land which was adjacent to the tract on which
the original nine holes had been constructed.
(See amendment to paragraph 15(b) of the school board's
answer and the stipulation relating thereto.)
4. On April 7, 1949, the city executed a lease whereby it
leased to Gillespie Park Golf Course, Inc., the portion of the
golf club owned by the City.
(See plaintiffs' exhibit No. , lease dated April 7, 1949.)
5. On April 13, 1949, the City Council of the City of
Greensboro adopted a resolution reciting that the city council
was of the opinion that the best interest of the city would be
served by the operation of the municipal golf course by a
non-profit corporation instead of by the city and that the
best interest of the city would be served by the leasing of
that portion of the golf course owned by the school board to
Gillespie Park Golf Club, Inc., and requesting the school
board to join the city in the leasing of the whole of the golf
course to the golf club.
(See the school board's Exhibit No. 3 and paragraph 15(b)
of the school board's answer and the stipulation relating
thereto.)
68
6. Pursuant to such request of the city council, the school
board, under date of April 19, 1949, leased to the golf club
that portion of the golf course owned by the school board for
a term of five years, with the provision that the school board,
if it needed the property for school purposes or if it desired
to offer it for sale, might terminate the lease upon sixty days
written notice to the other party. The lease fixed the rent at
$1,000.00 a year provided that the property should be used
only as a golf course.
7. That lease was extended until April 20, 1955, and on
April 20, 1955, it was extended for another term of three
years, which term w ill expire April 20, 1958.
8. The rental due the school board at the rate of $1,000.00
a year has been paid, and for several years past it has been
allocated equally between the Senior High School and the
Dudley High School for their respective athletic programs.
(See paragraph 15(b) of the school board's answer and
the stipulation relating thereto.)
9. The North Carolina General Assembly of 1949 validated
the lease dated April 1, 1947, from the school board to the
city covering a portion of the golf course and specifically
authorized the school board to lease any real property owned
by the board and which, in the opinion of the board, would
not be needed for school purposes, but in no case for a term
exceeding five years, with a further provision that any such
original lease might contain a provision for the extension or
renewal thereof, with the approval of the board for an ad
ditional term not exceeding five years. The act also provided
that any such lease might be made privately by the school
board or publicly after such notice in such manner and for
such length of time as might be prescribed by the board.
(See paragraph 15(b) of the school board's answer and
the stipulation relating thereto.)
10. Neither the lease of April 19, 1949, from the school
board to the golf club nor either of the two extensions thereof
by which it has been continued in effect up to the present
time contains any provisions restricting the use of the leased
69
property to citizens of the white race or otherwise limiting
the use thereof in such way as to prevent its use by the
plaintiffs or the class which they represent.
11. There is no evidence that the school board, or any
person or organization acting with the authority, consent, or
knowledge of the school board, ever denied the plaintiffs or
any of them or any Negro citizen permission to use the golf
course, or ever deprived them or any of them of any rights
or privileges they may have with respect thereto, but it leased
said property for public use as a golf course and its tenant has
denied plaintiffs and others of their race, solely on account
of their race, the equal privilege of using it. There is an actual
controversy between the plaintiffs and the school board and
its tenant with respect to the golf course.
12. That the City of Greensboro, with aid from the W orks
Progress Administration, constructed a nine hole golf course
in Gillespie Park, part of which was on land owned by the
Greensboro City Board of Education and leased to City of
Greensboro;
13. That until 7 April 1949, City of Greensboro operated
the Gillespie Park golf course for the use of White Citizens
of Greensboro;
14. That City of Greensboro, pursuant to a request from
a group of Negro citizens, and upon the recommendation of
the Greensboro Recreation Commission, constructed a nine-
hole golf course in Nocho Park for the exclusive use of Negro
citizens of Greensboro in an effort to follow the doctrine
established in Plessy v. Ferguson, 163 U.S. 537.
15. That on April 7, 1949, respectively, City of Greensboro
and Greensboro City Board of Education leased the Gillespie
Park golf course to Gillespie Park Golf Club, Inc. and that
this lease does not require that the golf course be operated by
lessee on a racially segregated basis, but does require it to be
used as a public golf course, the sole purpose for the lease,
the lease is hereby made a part of this finding.
16. That on September 16, 1950, City of Greensboro
leased the Nocho Park golf course to Nocho Park Golf Club,
70
Inc.; and that this lease does not require that the golf course
be operated by lessee on a racially segregated basis, but
does require it to be used as a public golf course, the sole
purpose for the lease, the lease is hereby made a part of
this finding.
17. That the leases of the Gillespie Park Course by the
City and the school board have been extended from time
to time, so that the lease by the city expires on April 6, 1958,
unless it is renewed, and the lease by the school board ex
pires on April 20, 1958, unless it is renewed.
18. That this is a class action brought under and pursuant
to Rule 23 of the Federal Rules of Civil Procedure.
19. That each of the plaintiffs is an adult Negro citizen
of the United States, and of the State of North Carolina, re
siding in the City of Greensboro, North Carolina; that the
defendant City of Greensboro is a municipal corporation, duly
organized and existing under the Constitution and laws of
North Carolina; that the defendant Greensboro City Board
of Education, is a body politic and corporate, duly organized
and existing under the Constitution and laws of North Caro
lina; that the defendant Gillespie Park Golf Club, Incorpo
rated, is a body corporate, incorporated under the laws of
the State of North Carolina, having received its charter on
March 26, 1949.
20. On the 15th day of February, 1940, the defendant
City of Greensboro and the defendant Greensboro City
Board of Education entered into an agreement with the
Government of the United States for the construction of a
golf course on land, part of which was owned by the City
of Greensboro and part by the Greensboro City Board of
Education, under which agreement the United States Govern
ment provided 6 5 % of the cost of constructing said golf
course. That in order to induce the United States Government
to provide 6 5 % of the cost, the defendants City of Greens
boro and Greensboro City Board of Education agreed with
the United States Government that (1) this golf course was
"fo r the use or benefit of the public." (2) that the City of
Greensboro would maintain and operate said golf course
71
for the use and benefit of the public during the useful life of
said golf course and (3) that said golf course would not "be
leased, sold, donated, or otherwise disposed of to a private
individual or corporation, or quasi-public corporation, during
the useful life o f" said golf course. Said golf course became
known as the Gillespie Park Golf Course and is the golf
course involved in this action.
21. That the City of Greensboro operated the Gillespie
Park Golf Course from 1941 until 1949 for the comfort and
convenience of white citizens only.
22. That on or about February 1, 1949, the plaintiff,
Arthur Lee, Jr., together with three other Negro citizens of
the City of Greensboro, sought the use of the facilities of
Gillespie Park Golf Course and were denied said use.
23. On or about February 15, 1949, representatives of the
Greensboro Men's Club, an organization of Negro citizens of
the City of Greensboro, appeared before the City Council of
the City of Greensboro and requested that Negro Citizens be
given the right to play golf at the Gillespie Park Golf Course
in as much as the city provided no facilities for Negro golfers.
24. That on or about February 17, 1949, a group of Negro
citizens of the City of Greensboro appeared before the City
Parks and Recreation Commission and requested the use of
all of the facilities at the Gillespie Park Golf Course. On
March 2, 1949, the City Parks and Recreation Commission
adopted a resolution recommending to the City Council of
Greensboro "that the City of Greensboro provide golf facilities
for the exclusive use of Negro citizens" and that "the golf
course located off Asheboro Street, now used by White not
be used by Negroes." That the resolution embodying these
recommendations was presented to the City Council of Greens
boro on March 15, 1949 by John R. Hughes, Chairman of the
Greensboro Parks and Recreation Commission and that the
recommendations were approved by the City Council on said
date.
25. That the Greensboro Parks and Recreation Commission
formulates a park and recreation program for the City and
72
serves the City in an advisory capacity in the formulation of
park and recreation budget and policy.
26. That the said John R. Hughes who appeared before
the City Council on March 15, 1949 became the chief promoter
and prime negotiator of the leases involved in this case. That
at the first meeting of the Board of Directors of the corporation
he was "authorized and directed to meet with the Greensboro
City Council and to have full authority to act on behalf of the
corporation in securing a lease of the club house, golf equip
ment, and as much land as might be leased from the city,"
and also he "was further instructed and empowered to con
tact the Greensboro school board and to negotiate an agree
ment for the lease of the nine-hole golf course on the school
property off of Asheboro Street." That the said John R. Hughes
did in fact appear before the City Council and the School
Board and did persuade them to authorize the leases involved
in this case, and at all times involved in these negotiations,
the said John R. Hughes was chairman of the Greensboro
Parks and Recreation Commission.
27. That the said John R. Hughes who appeared before
the City Council on March 15, 1949 became the chief pro
moter and organizer of the defendant Gillespie Park Golf
Club, Inc. That the meetings of the corporation were held
in his office and he successively became a director, vice-
president, secretary and president of the corporation. That
he has been the attorney for the corporation from its inception
to the present time.
28. That about seven years have expired under the leases
and that during the time a total cumulative membership did
not exceed 162 persons, and not more than 60 persons have
membership in the corporation at this time. That no meeting
of the membership of the corporation has ever been held
during the life of the corporation, and that only the members
who are also on the board of directors have any voice in the
affairs of the corporation. That the board of directors undet
the by-laws of the corporation is constituted of seven self-
perpetuating members who have the sole power and authority
to approve persons for membership and to amend or change
73
the by-laws. That no formal, recorded vote by the board of
directors has ever been taken approving any person or per
sons as members and no meeting held for this purpose, all
members appearing on the roll having been approved by
telephone conversations between the Golf Professional and an
undetermined number of the members of the board of di
rectors.
29. That all of the funds which have been paid out for
operating the golf course under the leases have ultimately
come from income which the City would have received direct
except for the existence of the leases, and that the members
and directors of the corporation have not invested a single
cent of their own money in the corporation, while at the same
time some of them have profited through compensation as
officers and employees of the corporation. That during the
life of the lease, funds of the defendant City of Greensboro
from sources other than the golf course have been invested
in the property.
30. That the leases in this case undertook to turn over to a
corporation having no assets or income highly v a l u a b l e
income-producing property belonging to the City and the
school board, the chief officer and promoter of said corpora
tion being an official of the city, and the city having no pro
spect of getting anything from said leases except out of the
income which the leased property was already bringing in,
and with the city reserving the right to put into the property
further investments from other sources than said income and
that under these circumstances said corporation was in fact an
agency of the city and the school board for the continued
maintenance and operation of the golf course for the con
venience of the citizens of Greensboro.
31. That at no time has the City Council of the City of
Greensboro either by resolution or by any statement in the
leases or in any other formal way, made a finding that this
golf course "in the judgment of the City Council w ill not be
needed by the City within a period of ten years."
32. While the defendants disclaimed before the court
any intent to exclude Negroes from using Gillespie Park Golf
74
Course they assumed that they have the right to exclude
Negroes if they wish to do so, and it is a fact that no Negro
has ever been permitted the privilege of playing on the golf
course.
33. White citizens of Greensboro are given the privilege
of becoming permanent members by paying $60.00 per year
without greens fees and others not permanent members by
paying $1.00 per year and greens fees of $.75, except on
holidays and weekends, when it is more. On days other than
holidays or weekends when greens fees are $1.25 white citi
zens are permitted to play without being members by paying
the fees above set forth and without paying the extra $1.00
and without any questions being put to them.
When the plaintiffs applied to be given the same privilege
they were refused on the ground that they were not mem
bers but primarily because of their color. Plaintiffs laid the
greens fees on the table in the club house, went out to play
and after they had gotten to the 3rd hole the "p ro " in charge
of the golf course ordered them off and they insisted that
they had a right to play and would not get off unless they
were arrested by an officer, whereupon the "p ro " had them
arrested and they were tried and convicted and sentenced to
imprisonment for a period of 30 days, which is the maximum
under the law for the State of North Carolina for trespassing.
75
A P P E N D IX " F "
CONCLUSIONS OF LAW
1. The court has jurisdiction of the parties and the subject
matter of this action. Title 28 U.S.C.A., Sections 2201 and
1343, this action arising under the Constitution and laws
of the United States and seeks redress for the deprivation of
civil rights guaranteed by the Fourteenth Amendment.
2. That the plaintiffs and other Negroes sim ilarly situated
cannot be denied, on account of race, the equal privileges
to the park, notwithstanding the lease.
3. The said agreement between the City of Greensboro,
the Greensboro City Board of Education, and the United States
Government imposed a duty upon the defendants in this
case to maintain and operate the Gillespie Park Golf Course
during its useful life for the benefit of public, including the
Negro public, and that duty could not be voided by the
execution of the leases involved in this case.
4. Under the existing lease from the school board the
golf club took the school board's portion of the golf course
subject to all applicable provisions of law.
5. The school board was not required as a matter of law
to include in the lease to the golf club any provision to the
effect that in the operation of the golf course there should be
no discrimination between the races.
6. The lease from the school board to the golf club is
not made invalid by reason of the omission in the lease of
any requirement that the golf club comply with the law.
7. That the City of Greensboro has the power to lease land
which it owns, for a period not exceeding ten years, under
Section 79(e) of Chapter 37, Private Laws of North Carolina,
1923;
8. That City of Greensboro is not required by law, statu-
76
tory or otherwise, to provide golfing facilities for the use of
its citizens,- but when it provides such facilities for the citizens,
it cannot deny the privilege to Negroes solely because of their
race.
This the 24th day of April, 1957.
/s/ Johnson J. Hayes
United States District Judge.
77
A P P E N D IX " G "
DECREE AND INJUNCTIO N:
Th is cause coming on for hearing and the court having
heard the evidence and argument of counsel and carefully
considered the same and the briefs filed, and having made
the findings of fact and conclusions of law which appear of
record:
It is now ORDERED, ADJUDGED and DECREED that de
fendants have unlawfully denied the plaintiffs as residents
of the City of Greensboro, N. C. the privileges of using the
Gillespie Park Golf Course, and that this was done solely
because of the race and color of the plaintiffs, and constitutes
a denial of their constitutional rights, and unless restrained,
will continue to deny plaintiffs and others sim ilarly situated:
And be it further ORDERED, ADJUDGED and DECREED:
1. The defendants and each of them, and the officials,
servants and employees of each of said defendants are hereby
forever restrained and enjoined from disposing of the public
property described and used as the Gillespie Park Golf Course,
except by a bona fide sale.
Reservation. Th is court w ill retain jurisdiction and the
power to modify this paragraph upon application and on ten
days notice to the plaintiff.
2. The defendants and each of them, and the officers,
agents, servants and employees of each of said defendants
are hereby forever restrained and enjoined against any dis
crimination against the plaintiffs or any other Negro resident
of the City of Greensboro in the use of said golf course,- No
restrictions or conditions shall be imposed against the Negroes
except those imposed against the White residents of the City
of Greensboro. Th is paragraph shall become effective 40
days after this decree is filed in the office of the Clerk of this
court at Greensboro.
3. The application by the City of Greensboro and the
Gillespie Park Golf Club, Inc., for a stay pending appeal is
78
denied because of the delay of the effective date of para
graph 2 hereof, in which time the defendants can apply to
the Circuit Court for a stay. It has been known by the de
fendants since March 18, 1957, that the decree would be en
tered and time was allowed by the court for the parties to
agree on a date, as this court was unwilling to deny the
plaintiffs their constitutional rights except by their consent.
Except as stated above this decree shall take effect upon
its filing in the office of the Clerk of this court at Greensboro,
N. C. ~
It is ORDERED that the costs be taxed against the de
fendants City of Greensboro and The Gillespie Park Golf
Club, Inc. No cost is to be taxed against the School Board
because it had leased the property to the City and the City
induced the School Board to transfer the lease to the Golf
Club. It does not appear that the School Board promoted
or encouraged the discriminatory conduct of the co-defendants.
Entered April 24, 1957.
/ s / Johnson J. Hayes
U. S. District Judge.
79
Proof of Service f\
3 T ^ y o m l Assistant Attorney
General of the Slate of North CarolinaAhereby acknowledge
receipt of a copy of the within STA TEM EN T AS TO JURISDIC
TIO N in the case of Phillip Cooke et al., Appellants, vs State
of North Carolina (No. 582-Guilford in the Supreme Court
of North Carolina), on appeal to the Supreme Court of the
United States, this the day of October, 1958.