Statements by Professor Donald Horowitz RE: Bloc Voting/Dilution

    IN  THE

lihtprme (Emtrt of tin  Mntfofi States
No. 127

October Term, 1958

ALBERTIS S. HARRISON, JR., Attorney General of Virginia, et al.,
Appellants,

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED 
PEOPLE, a Corporation, and NAACP LEGAL DEFENSE AND EDU­
CATIONAL FUND, INC., a Corporation,

Appellees.

APPEAL PROM THE UNITED STATES DISTRICT COURT FOR THE 
EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

BRIEF FOR APPELLEES

ROBERT L. CARTER 
20 West 40th Street 
New York, New York

OLIVER W. HILL 
118 East Leigh St.
Richmond, Virginia

Attorneys for Appellee National 
Association for the Advancement 
of Colored People

THURGOOD MARSHALL 
10 Columbus Circle 
New York, New York

SPOTTSWOOD W. ROBINSON, I I I  
623 North Third Street 
Richmond, Virginia

Attorneys for Appellee NAACP 
Legal Defense and Educational 
Fund, Inc.

CHARLES L. BLACK, JR. 
ELWOOD H. CHISOLM 
WILLIAM T. COLEMAN, JR. 
IRMA R. FEDER 
JACK GREENBERG 
CONSTANCE BAKER MOTLEY 
LOUIS H. POLLAK

O f Counsel



I N D E X

Table of Cases..... ...................................................... - iii

Other Authorities .............................................   vii

Statement of the Case................................................  1-14
1. Proceedings Below.........................................  1-2
2. Statutes Involved ........................................ 2-4
3. Statement of Facts .......................................  4-14

“The Association” ........................................   4-10
“The Fund” .........     10-14

SUMMARY OF ARGUMENT .......    14-16

Argument ..................................................................  17-52
I. These Virginia statutes not only curtail law­

ful activities of two membership corpora­
tions and of their members, contributors, 
and attorneys, but also strike at basic civil 
rights and liberties guaranteed by the Con­
stitution .................................   - 17-36
A. Compulsory Disclosure of Organizational

Affiliates Where Economic Reprisals and 
Other Manifestations of Public Hostility 
Will Ensue Violates the Fourteenth 
Amendment .....       18-22

B. Denial of Access to the Courts...............  22-23
C. Deprivation of Liberty ..........................  23-25
D. Virginia Has Shown No Justification for

Chapter 35 .......   — 25-33
E. Denial of Equal Protection.....................  33-36

PAGE



PAGE

II. There were no legally sufficient reasons to 
deny appellees injunctive relief or postpone 
action in deference to the state courts........  36-52
A. The District Court Properly Enjoined

Enforcement of the Statutes Without 
Their Previous Consideration by the 
State Courts .................................... ..... . 36-48

B. The Cases at Bar Present Circumstances
Which Warranted Enjoining the Crim­
inal Statutes in Suit ................ ..... .... . 48-52

C o n c lu sio n 52-53



I l l

T able o r  C ases

page

Adams v. Tanner, 244 U. S. 590 ................ ................... 50
Air-Way Electric Appliance Corp. v. Day, 266 U. S. 71 35 
Alabama Public Service Commission v. Southern By.,

341 U. S. 341 ............ ............................... ..........37,38,39
Albertson v. Millard, 345 U. S. 242 ............................ 42, 47
Alston v. School Board of the City of Norfolk, 112 F.

2d 992 (4th Cir. 1940) ....... ................ ......................  30
American Federation of Labor v. Watson, 327 U. S.

582 ................. .............. ......................................... -.38, 47

Barbier v. Connally, 113 U. S. 27 .............................. . 22
Bartels v. Iowa, 262 U. S. 404 .................. ................... 24
Baskin v. Brown, 174 F. 2d 391 (4th Cir. 1949) ..........  45
Bolling v. Sharpe, 347 U. S. 497 ....................................  24
Brannon v. Stark, 185 F. 2d 871 (D. C. Cir. 1950), affd.

342 U. S. 451 ............ ........................................... 29, 30,31
Brown v. Board of Education, 347 U. S. 483, 349 U. S.

294 ....... .............. .............. .........................................22, 45
Brush v. Carbondale, 299 111. 144, 82 N. E. 252

(1907) .................. - ..............................................27,30,31
Bryan v. Austin, 148 F. Supp. 563 (E. I). S. C. 1957),

vacated as moot 354 U. S. 933 .......... .............. ....... 43
Buchanan v. Warley, 245 IT. S. 60 ............................ 15, 21
Burford v. Sun Oil Co., 319 U. S. 315............................  37

Cantwell v. Connecticut, 310 IT. S. 296 ........................ - 30
Carter v. Carter Coal Co., 298 IT. S. 238 .....................  50
Chicago v. Atchison, T. & S. F. B. Company, 357 U. S.

77 .....................................................................16,42,43,46
Chicago v. Fieldcrest Dairies, 316 IT. S. 168.................  42
Concordia Fire Ins. Co. v. Illinois, 292 IT. S. 535 ......  35
Cooper v. Aaron, 358 IT. S. 1 ...... ................. -..........15, 21
Crandall v. Nevada, 6 Wall. 36 ............................ ....... 22



IV

Davies v. Stowell, 77 Wis. 334, 47 N. W. 370 .............. 31
Davis v. Sclmell, 81 F. Sapp. 872 (S. D. Ala. 1949),

aff’d 336 U. S. 933 ...................................................... 45
Dorchy v. Kansas, 264 U. S. 286 ............... ..................... 48
Doud v. Hodge, 350 U. S. 485 ....... ............................... 16, 46

Euclid v. Ambler Realty Co., 272 U. S. 365 ................. 50, 51
Ex parte Yarbrough, 110 U. S. 651...... .........................  23
Ex parte Young, 209 U. S. 123......................................  49

Gayle v. Browder, 352 U. S. 903, affirming 142 F. Supp.
707 (M. D. Ala. 1956) ...............................................16, 50

General Box Company v. United States, 351 U. S.
159 ...............................................................................  42

Government & Civic Employees Organizing Committee
v. Windsor, 353 U. S. 364 ................................... 37, 42, 47

Gunnels v. Atlanta Bar Ass’n, 191 Ga. 366, 12 S. E.
2d 602 (1940)  ...................................... 24,28,29,30,31

Hartford Co. v. Harrison, 301 U. S. 459 .....................  35
Hurd v. Hodge, 334 U. S. 24..... ..................................... 30
Hygrade Provision Co. v. Sherman, 266 U. S. 497 ......  50
Hynes v. Grimes Packing Co., 337 U. S. 86 .................  50

In re Ades, 6 F. Supp. 467 (D. Md. 1934) ............25, 30, 31
In re Neagle, 135 U. S. 1 ....... ....................................... 23

Konigsberg v. State Bar of California, 353 U. S. 252 .... 24

Lane v. Wilson, 307 U. S. 268 .......................................  45
Logan v. United States, 144 U. S. 263 ......................... 23

PAGE

Marsh v. Alabama, 326 U. S. 501...................................  30
Mayflower Farms, Inc. v. Ten Eyck, 297 U. S. 266 ___  35
McCloskey v. Tobin, 252 U. S. 107................................ 25



V

Meridian v. Southern Bell T. & T. Co., 27 U. S. L.
Week 3235 (February 24, 1959) .........................36, 38, 39

Meredith v. Winter Haven, 320 U. S. 228 ..............16, 37, 46
Meyer v. Wells Fargo & Co., 223 U. S. 298.....................  48
Meyers v. Nebraska, 262 U. S. 390 ........ -......................  ^4
Morey v. Bond, 354 U. S. 457 ...... - - - - - ........16,35,42,48
Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958), ceit.

denied 356 U. S. 968 .........-........................................
Myers v. Anderson, 238 U. S. 368 ....- ..........................

National Association for the Advancement of Colored
People v. Alabama, 357 U. S. 449 .....-......—............ 15>18

Nixon v. Herndon, 273 U. S. 536 ............ -........-.............  35

Packard v. Banton, 264 U. S. 140 ............... - .................~
Pennsylvania v. West Virginia, 262 U. S. 553 .............. 59
Pennsylvania v. Williams, 294 U. S. 176 ............-........ 37
Philadelphia Co. v. Stimson, 323 IT. S. 605 ...... - ......... 50
Pierce v. Society of Sisters, 268 U. S. 510...... 15,16, 24,
Propper v. Clark, 337 U. S. 472 ........... - ............. - .....38
Public Utilities Commission v. United States, 355 U. S.
~ 534 ............................................................................. 42’46

Railroad Commission of Texas v. Pullman Co., 312
u . s. 496 ..............................................-.................

Royal Oak Drainage Dist. v. Keefe, 87 F. 2d 786 (6th
Cir. 1937) ................................................................ 3

Schware v. Board of Bar Examiners of State of New
Mexico, 353 U. S. 232 .............................................. 4^’

Shanks Village Committee Against Rent Increases v.
Cary, 103 F. Supp. 566 (S. D. N. Y. 1952) ..............

Shelley v. Kraemer, 334 U. S. 1 -----............................. "
Skinner v. Oklahoma, 316 U. S. 535 ~~~...... -...............  ’
Slaughter House Cases, 16 Wall. 36 --------- ------------

PAGE



VI

Smith v. Cahoon, 283 U. S. 553 .................................... 35
Southern Railway Co. v. Greene, 216 U. S. 400 ..........  35
Spector Motor Co. v. McLaughlin, 323 U. S. 101 ....38, 39,

42, 47
Sterling v. Constantin, 287 U. S. 378 ............................  49

PAGE

Tenney v. Brandhove, 341 U. S. 367 ............................  45
Terrace v. Thompson, 263 U. S. 197 ............................  50
Terra! v. Burke Construction Co., 257 U. S. 529 ...... 15, 22
Thallheimer v. Brinekerhoff, 3 Cow. 623, 15 Am. Dec.

308 (N. Y. Court of Errors 1824) .........................16, 27
Thornhill v. Alabama, 310 U. S. 89................................  29
Toomer v. Witsell, 334 U. S. 385 ..................... 16, 42, 43, 46
Truax v. Corrigan, 257 U. S. 312 ................................  22
Truax v. Raich, 239 U. S. 33 ............................ 16, 35, 49, 50
Tyson & Bro. v. Blanton, 273 U. S. 418......................... 50

United States v. Lancaster, 44 Fed. 855 .....................  23
Utah Fuel Co. v. National Bituminous Coal Comm.,

306 U. S. 56 ................................................................  50

Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 65 .. 50 
Vitaphone Corp. v. Hutchison Amusement Co., 28 F. 

Supp. 528 (D. Mass. 1939) .......................................  31

Watson v. Buck, 313 U. S. 387 ................................... 50, 51
Western Union Telegraph Co. v. Andrews, 216 U. S.

165 ...............................................................................  49
Williams v. Standard Oil Co., 278 U. S. 235 ..............47, 48

Yick Wo v. Hopkins, 118 U. S. 356 35



O t h e b  A u t h o r i t i e s

139 A. L. E. 622-623, 10 Am. Jur., Champerty and 
Maintenance, §3 (1956) .............................................

Association of the Bar of the City of New York and 
the New York County Lawyer’s Association, 
Opinions of the Committees on Professional Ethics 
(1956) ...................................................................30,31,

Brownell, Legal Aid in the United States (1951) ......

“Champion of the Indian,” N. Y. Times, March 3, 
1958 .............................................................................

Church, “Trade Unionism and Crime,” New York 
Times, Oct. 1, 1922 ......................................................

Davis, Ripeness of Governmental Action for Judicial 
Review, 68 Harv. L. Rev. 1122 (1955) .....................

National Ass’n of Manufacturers, The Crime of the 
Century and Its Relation to Politics .....................

National Committee for the Defense of Political
Prisoners, News You Don’t Get .............................. 29,

Radin, “Maintenance by Champerty,” 24 Calif. L. Rev. 
48 (1935) ......... .........................................................26,

Schlesinger, Crisis of the Old Order (1957) ..............29,
Smith, Justice and the Poor (1921) .....................29,30,

43 Ya. L. Rev. 1241 (1957) ................................. ..........

Winfield, The History of Conspiracy and Abuse of
Legal Procedure (1921) ............................................

Winfield, “The History of Maintenance and Cham­
perty,” 35 Law Q. Rev. 50 (1919) ............................

28

32

31

29

29

50

29

30

27

30
31

44

26

26



I n  t h e

i$>upr£m£ (ftmirt nf tlw UmfrJi #tatps
No. 127

October Term, 1958

A lb er tis  S. H a rrison , J r., Attorney General 
of Virginia, et al.,

Appellants,

N a tio n a l  A ssociation  eob t h e  A d v a n c em en t  of C olored 
P e o pl e , a Corporation, and NAACP L egal D e f e n s e  and 
E d u cational  F u n d , I n c ., a Corporation,

________  Appellees.

a ppea l  fro m  t h e  u n it e d  states d istrict  court for  t h e
EASTERN DISTRICT OF VIRGINIA, RICHMOND DIVISION

BRIEF FOR APPELLEES

Statement o f the Case

1. Proceedings Below

On November 28, 1956, appellees National Association 
for the Advancement of Colored People (the Association) 
and N. A. A. C. P. Legal Defense and Educational Fund, 
Inc. (the Fund) brought separate actions for declaratory 
and injunctive relief against the Attorney General of 
Virginia and five Commonwealth Attorneys upon the claim 
that Chapters 31, 32, 33, 35 and 361 of the Acts enacted

1 “These Acts have been respectively codified in the Code of 
Virginia at §§18-349.9, et seq., 18-349.17 et seq., 54-74, 78, 79; 
18-349.25 et seq., and 18-349.31 et seq.” (E. 44).



2

by the General Assembly of Virginia at the 1956 Extra 
Session are unconstitutional and in violation of the Com­
merce Clause, and the First and Fourteenth Amendments 
to the Constitution of the United States (R. 1-15, 24-37, 44).

Appellants responded with identical motions to dismiss 
which, inter alia, urged the District Court to withhold ex­
ercise of its jurisdiction (R. 17, 39); and, after the denial 
of these motions following a consolidated hearing thereon, 
answers were filed which renewed the contentions of these 
motions (R. 20 et seq., 40 et seq., 64). Trial on the merits 
was set and heard September 16-19, 1957 (R. 129, 457). 
Thereafter, on January 21, 1958, the District Court, one 
judge dissenting, filed an opinion which declared Chapters 
31, 32 and 35 unconstitutional and enjoined their enforce­
ment as violative of the requirements of equal protection 
and due process; but remitted appellees to the state courts 
for an interpretation of Chapters 33 and 36 (R. 43 et seq.). 
Judgment was entered on April 30, 1958 (R. 122-23).

Thereupon this appeal was perfected (R. 124-26); and 
this Court noted probable jurisdiction on October 13, 
1958 (R. 647).

2. Statutes Involved

Full texts of the lengthy statutes involved on this 
appeal, i.e., Chapters 31, 32 and 35, have been set out in 
Appellants’ Appendix I. The “cardinal provisions” of the 
legislation assailed below, however, are succinctly sum­
marized by the District Court (R. 52-53), as follows:

The five statutes against which the pending suits 
are directed, that is Chapters 31, 32, 33, 35 and 36 
of the Acts of the General Assembly of Virginia, 
passed at its Extra Session in 1956, were enacted for 
the express purpose of impeding the integration of 
the races in the public schools of the state which the



3

plaintiff corporations are seeking to promote. The 
cardinal provisions of these statutes are set forth 
generally in the following summary.

Chapters 31 and 32 are registration statutes. They 
require the registration with the State Corporation 
Commission of Virginia of any person or corporation 
who engages in the solicitation of funds to be used 
in the prosecution of suits in which it has no pecuniary 
right or liability, or in suits on behalf of any race 
or color, or who engages as one of its principal ac­
tivities in promoting or opposing the passage of legis­
lation by the General Assembly on behalf of any race 
or color, or in the advocacy of racial integration or 
segregation, or whose activities tend to cause racial 
conflicts or violence. Penalties for failure to register 
in violation of the statutes are provided.

Chapters 33, 35 and 36 relate to the procedure for 
suspension and revocation of licenses of attorneys at 
law, to the crime of barratry and to the inducement 
and instigation of legal proceedings. It is made un­
lawful for any person or corporation: to act as an 
agent for another who employs a lawyer in a proceed­
ing in which the principal is not a party and has no 
pecuniary right or liability; or to accept employment 
as an attorney from any person known to have vio­
lated this provision; or to instigate the institution of 
a law suit by paying all or part of the expenses of 
litigation, unless the instigator has a personal interest 
or pecuniary right or liability therein; or to give or 
receive anything of value as an inducement for the 
prosecution of a suit, in any state or federal court 
or before any board or administrative agency within 
the state, against the Commonwealth, its departments, 
subdivisions, officers and employees; or to advise, 
counsel, or otherwise instigate the prosecution of such



4

a suit against the Commonwealth, etc., unless the in­
stigator has some interest in the subject or is related 
to or in a position of trust toward the plaintiff. 
Penalties for the violation of these statutes are pro­
vided.

The legislative history of these statutes to which we 
now refer conclusively shows that they were passed 
to nullify as far as possible the effect of the decision 
of the Supreme Court in Brown v. Board of Education, 
347 U. S. 483 and 349 U. S. 294.

3. Statem ent o f Facts

Although appellees know that this Court previously con­
sidered the functioning of the Association in National 
Association for the Advancement of Colored People v. 
Alabama, 357 U. S. 449, and even though we believe that 
the opinion of the .District Court contains a concise state­
ment of the material facts (R. 45-52, 53-60, 61), we feel 
obliged to present our statement of facts because appel­
lants’ presentation of the case does not state all that is 
material to the consideration of the questions raised on 
this appeal.

The Association and the Fund are each non-profit New 
York membership corporations (R. 45, 49, 276, 498-99). 
Both are registered in the Commonwealth of Virginia as 
foreign corporations (R. 45, 49, 191-92, 276-77). The ac­
tivities engaged in pursuant to their charters, their organi­
zational structure and their mode of operation, however, 
differ.

“The Association”

Organized in 1909, the Association was incorporated in 
1911 (R. 45, 165, 496-502) for the following principal 
purposes:



5

. . . voluntarily to promote equality of rights and 
eradicate caste or race prejudice among the citizens 
of the United States; to advance the interest of 
colored citizens; to secure for them impartial suffrage; 
and to increase their opportunities for securing justice 
in the courts, education for their children, employ­
ment according to their ability, and complete equality 
before the law.

To ascertain and publish all facts bearing upon 
these subjects and to take any lawful action thereon; 
together with any and all things which may lawfully 
be done by a membership corporation organized under 
the laws of the State of New York for the further ad­
vancement of these objects (R. 45-46, 498-99).

And its ultimate goal, in short, may be said to be the eradi­
cation of those twin viruses of second class citizenship— 
segregation and discrimination based on race or color 
(R. 170).

To these ends the Association engages in three broad 
types of activity: one, contributing monies to defray the 
costs of litigation, including attorneys’ fees, which chal­
lenges the validity of governmentally imposed or enforced 
segregation and discrimination on account of race or color; 
two, promoting legislation which would tend to eliminate 
such segregation or discrimination and opposing legisla­
tion which would restrict the opportunities/of the Negro 
minority for equalitarian status or deny them rights secured 
under the law of the land; and, three, disseminating through 
public speeches and printed publications information which 
advocates racial nonsegregation in the enjoyment of pub­
lic facilities and which also publicizes the Association’s 
objectives and activities (R. 170-71, 172, 179, 180). To con­
duct these activities, income and fund raising, of necessity, 
are constant ingredients in the program of the Association 
(R. 172).



6

N.A.A.C.P. activities are carried on in Virginia by 
local members of the Association and such officers or em­
ployees of the Association as are requested to supply their 
talents by the local membership (R. 172-73). This member­
ship, in conformity with the charter and constitution of the 
Association (R. 498-99, 503), is organized into 89 chartered 
affiliates called Branches which, jointly with the Associa­
tion, contribute toward the support of a statewide sub­
ordinate unit named the Virginia State Conference of 
N.A.A.C.P. Branches (the State Conference) (R. 46, 134, 
135-36, 168-70).

The State Conference is the spearhead of the Associa­
tion’s activities in Virginia; for it not only coordinates 
the activities of the Branches and supervises local member­
ship and fund raising campaigns but it also represents and 
acts for the entire Virginia membership on matters of state­
wide importance (B. 47, 134, 135-36). It appears before 
the General Assembly and State Commissions to voice 
support of, or opposition to, measures which, according to 
its construction, advance or retard the status of the Negro 
in Virginia (R. 47, 134, 136). It conducts intensive educa­
tional programs designed to encourage Negroes to satisfy 
voting requirements and vote (R, 47, 134, 135), to acquaint 
the people of Virginia with the facts regarding the harmful 
aspects of racial segregation and discrimination (R. 47, 
134), and to instill in Negroes a knowledge of their legal 
rights and encourage their assertion when violations 
occur (R. 47, 135, 148). In carrying out this program all 
of the media of free expression of ideas are used, e.g., 
public meetings, conferences, distribution of pamphlets, 
letter writing, etc. (R. 47-48, 147-48).

Furthermore, the State Conference contributes, or obli­
gates itself to contribute, financial assistance for defraying 
all or part of the counsel fees and costs incurred in litiga­



7

tion involving racial discrimination or segregation (E. 48, 
135, 136, 142-43). Before the Conference obligates itself 
in a case, several criteria must be met. First, there must 
be a genuine grievance involving discrimination on account 
of race or color; secondly, the complaint must involve of dis­
crimination or segregation imposed under the color of state 
authority and it must present a justiciable controversy (R. 
48,150-52,156,184, 207, 210).

In the furtherance of its legal program the State Con­
ference has established a legal committee, commonly re­
ferred to as the Legal Staff; and, at present, it is composed 
of thirteen members located in seven different communi­
ties scattered over most of the state (R. 48, 157). The 
members of the Legal Staff are elected at the annual con­
vention of the State Conference and they in turn elect a 
Chairman (Id.).

Cases usually arise by the aggrieved parties contacting 
a member or members of the Legal Staff, but in a number 
of instances the grievance is brought to the attention of 
the Executive Secretary of the Conference who refers the 
complaining parties to the Chairman of the State Legal 
Staff if there appears to be a genuine grievance involving 
racial discrimination or segregation (R. 48, 149-50, 207). 
The Chairman confers with the aggrieved party and then 
decides whether the discrimination or segregation suffered 
is imposed under color of state authority and presents a 
justiciable controversy (R. 48, 150, 209, 210). If the deci­
sion is that the complaint squares with these criteria, the 
Chairman informs the complainant that he will recommend 
that the Conference assist him in his ease (R. 48, 150, 209).

The Chairman communicates his recommendations to the 
President of the State Conference and upon his concur­
rence the Conference obligates itself to defray in whole 
or part the costs and expenses of the litigation (R. 48,



8

150). Counsel for the complainants, either by choice or 
acquiescence, has usually been a member or members of 
the Conference’s Legal Staff (E. 48, 152, 153, 159, 324).

Finally, when the Conference honors its obligation, it 
reimburses the litigant’s counsel for out-of-pocket expendi­
tures (for travel, stenographic service, etc.) and pays 
him a per diem compensation for the days spent in prepara­
tion and trial of the litigation (R. 48, 209-10, 646-47). Com­
pensation of counsel on such a basis is not only modest but 
far out of proportion to the actual time and energy spent 
in civil rights litigation (R. 321, 325, 329); and counsel 
have accepted even less than due under this formula (R. 
331).

The principal source of income for the Association and 
its units is derived from membership fees solicited during 
the various local membership drives; other sources of in­
come are public fund raising rallies or meetings and con­
tributions, some of which are not solicited direetly/(R. 46, 
148, 163, 169). The Association enrolled 13,595 mem­
bers in Virginia during the first eight months of 1957 
(R. 46, 136, 137, 174), and the majority of the Branches in 
Virginia conduct their annual membership drives in the 
spring and summer months (R. 176). By contrast, mem­
bership figures for the same eight month period for the 
previous three years were 19,436 in 1956, 16,130 in 1955 and 
13,583 in 1954 (R. 46, 137, 174).

The income of the Association from its Virginia Branches 
for the first eight months of 1957 was $37,470.60 as com­
pared with $43,612.75 for the same period in 1956 (R. 46-47, 
68, 173, 642, 643).

Of the $38,469.59 which the Association received from 
all sources in Virginia during the first eight months of 
1957, $37,470.60 came from Branches (R. 46, 68, 173, 642).



9

The corresponding amounts for the same period in 1956 
are $44,138.71 and $43,612. (R. 46, 68, 643). From the 
country as a whole—the Association has branches in 44 
states and the District of Columbia (R. 46, 67)—the Asso­
ciation’s income for the first eight months of 1957 and 1956 
was $425,608.13 and $598,612.84, respectively (R. 46-47, 68, 
173, 642, 643).

The fall off in Virginia memberships and drop in income 
from Branches tiled to the impact of
the challenged legislation/(R. 61, 62-63, 140, 141). Inquiries 
made by solicitors working in Branch membership cam­
paigns and samplings made by the Executive Secretary of 
the State Conference revealed that/individuals who failed 
to renew their memberships, as well as former campaign 
workers, were generally apprehensive as to the application 
of the assailed legislation to themselves and feared that 
reprisals would be directed against them should their mem­
bership in the Association be made a matter of public 
record (R. 61, 137, 139-41, 236-38).

Public identification of Virginians as members of the 
Association (R. 61, 234-35, 251, 254, 263), or as plaintiffs 
in the antisegregation suits in which the Association is 
identified (R. 230, 239, 252, 258), or as advocating compli­
ance with the antisegregation decisions of federal courts 
(R. 244-45, 264-65) has exposed them and their families to 
threats of violence to person and property (R. 61, 232, 246, 
260-61, 265, 266), various forms of intimidation such as 
cross-burning (R. 61, 246-47, 265-66) and the hanging of 
an effigy (R. 61, 255), social ostracism (R. 61, 248, 266), 
economic reprisals (R. 239-41, 248) and a variety of per­
sonal annoyances such as persistent insulting or obscene 
anonymous telephone calls, letters and “bus stop editorials” 
(R. 61, 230-32, 234-36, 245-46, 251-52, 253-54, 258-61, 265-66). 
The experiences of most of these “exposed persons” and



1 0

many others, too, have been given widespread publicity in 
Virginia newspapers (E. 61, 127, 269-72, 459-63), including 
Negro as well as white publications (E. 269-72, 459-63, 
492).

The local press, by publishing news stories and columns 
which described the assailed legislation as being anti- 
N.A.A.C.P. measures with grave penalties for any violation 
thereof, again gave cause for the apprehensiveness regard­
ing the application of the challenged legislation to members, 
contributors and all other persons who associate themselves 
with the activities of either the Association or the Fund 
(E. 61, 140, 191, 236-38, 269-72, 274, 459-63). Laymen were 
not alone in this boat; similar analyses made members 
of the legal profession hesitant and apprehensive, too 
(E. 61, 321-22, 326, 330).

“The Fund”

The Fund was incorporated in 1940 (E. 49, 276) and its 
charter describes its principal purposes as follows:

(a) To render legal aid gratuitously to such Negroes 
as may appear to be worthy thereof, who are suffer­
ing legal injustices by reason of race or color and 
unable to employ and engage legal aid and assistance 
on account of poverty.

(b) To seek and promote the educational facilities for 
Negroes who are denied the same by reason of race 
or color.

(c) To conduct research, collect, collate, acquire, compile 
and publish facts, information and statistics concern­
ing educational facilities and educational opportuni­
ties for Negroes and the inequality in the educational



1 1

facilities and education opportunities provided for 
Negroes out of public funds; and the status of the 
Negro in American life (R. 49, 277-78, 304).

Moreover, inasmuch as the Fund’s purposes include ren­
dering legal aid and services, its activities as a legal aid 
society have been approved by the Appellate Division of 
the Supreme Court of New York, First Judicial Depart­
ment, without objections from any of the several bar asso­
ciations (R. 49-50, 314).

Unlike the Association, the Fund has no affiliated or 
subordinate units (R. 50, 278); its one office is located in 
New York City (Id.). In order to implement its objec­
tives, the Fund employs a full-time staff of six resident 
attorneys and three research attorneys, all of whom are 
stationed in New York (R. 50, 279, 281), two educational 
specialists (R. 303), one of whom is in the field, and a social 
scientist who does non-legal research (R. 303). The Fund 
has also secured the services of four lawyers on annual 
retainers (R. 50, 279); they reside in and conduct their 
private practices at Richmond, Dallas, Los Angeles and 
Washington, D. C. (R. 50, 279, 288, 301-02). Moreover, 
the Fund has engaged other counsel on a case-by-case fee 
basis for investigations and research (R. 50, 285-86, 298, 
319). And the Fund has on call about a hundred attorneys 
(R. 50, 278) and a large number of social scientists (R. 50, 
286, 292) whose services are available on a volunteer or 
expenses-only basis.

Participation in litigation which falls within the scope 
of its charter, legal and general research, the dissemina­
tion of information and fund raising are the activities car­
ried on by the Fund (R. 49, 50, 277-78, 279, 281)./With 
respect to litigation, the Fund’s policy forbids it from tak­
ing any part in a case unless a request for services or funds 
is made by either the party in interest or his attorney (R.



1 2

280, 290). If this is done, and the case not only involves 
a threatened or actual denial of civil rights hut is basically 
meritorious, the Fund furnishes the requested assistance— 
advice, services or finances including the entire cost of 
litigation and lawyers fees (R. 279, 284-85, 318-19).

Since its inception, the Fund has been associated in some 
way with about every leading civil rights case (R. 50, 
281-83). Moreover, it is unique in that no other organiza­
tion provides gratuitously the assistance and services 
which it does either on a national basis or in Virginia 
(R. 50, 283, 292, 293).

A considerable amount of the Fund’s efforts is devoted 
to research (R. 51, 281, 298, 319). In the main, the legal 
research done by staff members and volunteers is utilized 
in connection with pending litigation although it is avail­
able for use by lawyers and law schools (R. 50, 279, 287).

The educational activities of the Fund are varied. In 
addition to disseminating research materials, staff members 
do considerable public speaking at meetings sponsored by 
community organizations as well as lecturing in colleges 
and universities on various topics, ranging from constitu­
tional law through civil rights to patterns of human rela­
tions (R. 50, 281). Moreover, the staff disseminates the 
fruit of case experience and field studies in the form of 
memoranda and articles published by professional journals 
and general periodicals (R. 279, 287).

Fund raising for the support of its activities is limited 
to the solicitation of contributions; the principal fund rais­
ing activity consists of four quarterly mailings sent out by 
a group of volunteers called the Committee of One Hun­
dred, but solicitations are also made at social affairs and 
public meetings sponsored by other volunteer groups for 
the benefit of the Fund (R. 51, 293, 295, 313). fContribu-



13

tions are its sole source of income since neither fees nor 
dues are requirements for Fund membership (B. 51, 294).

For four or five years prior to 1957, the Fund’s income 
rose steadily i in 1956, it totaled $351,283.32 (B. 51, 294, 
318). Beginning September 1956, due to the fact that the 
Fund’s volunteer solicitors had to drop Texas from the 
list of states in which services and assistance were avail­
able—the state having restrained its operations during 
that time, income dropped off steadily (B. 68, 294-95). 
Another drop is reflected in the comparative income for 
the first eight months of 1957 and that for the same period 
in 1956: $152,000 and $246,000, respectively (B. 51, 68,
294) , i.e., after the precariousness of Fund operations in 
Virginia was widely publicized ( B. 68-69).

While studies by professional fund raising advisors re­
veal that^he Fund’s income from Virginia cannot be deter­
mined precisely because many Virginia contributors wmrk 
in and mail their contributions from Washington, Fund 
income from Virginia to the extent that is shown on the 
books shows a decline from/$6,256.19 in 1955 to $1,859.20 
in 1956 to $424.00 for the first two-thirds of 1957 (B. 51,
295) .

As to the Fund expenditures for services in Virginia, 
exclusive of the services and personal counsel contributed 
by the New York Staff in Virginia litigation (e.g., see B. 
51, 318), the amounts are $6,344.39 in 1954, $6,000.00 in 
1955, $6,490.00 in 1956 and $3,500.00 in 1957 for the first 
eight months (B. 296).

There is no dispute on the record as to the effect of the 
assailed statutes upon the operations of the Fund in Vir­
ginia, especially in the present atmosphere of fear and un­
easiness: contributions have dwindled and would cease (B. 
51, 68, 295, 296, 297-99) with a resulting cessation of con­
tributions from the intransigent South (B. 297); many law­



14

yers, white as well as Negro, would not work for or with the 
Fund (R. 298, 322, 326, 330); and the Fund would be re­
strained from participating in civil rights litigation and 
utterly destroyed (R. 298-99).

It is on the basis of the foregoing facts, plus a considera­
tion of companion enactments passed by the General As­
sembly of Virginia (R. 54-60, 131-32, 506 et seq.),"ttet the 
District Court concluded (R. 61-62):

In view of all the evidence, we find that the activities 
of the State authorities in support of the general plan 
to obstruct the integration of the races in schools in 
Virginia, of which plan the statutes in suit form an 
important part, brought about a loss of members and 
a reduction of the revenues of the [appellees] and made 
it more difficult to accomplish [their] legitimate aims.

Summary o f Argument

Immediately after the 1954 decision in the Brown case, 
the Commonwealth of Virginia acting through its Governor 
and legislature set out to prevent compliance with that 
decision. Thus, Virginia embarked on its plan of “massive 
resistance”, which included resolutions of “Interposition” 
and other attacks on this Court followed by the convening 
of the 1956 Extra Session of its General Assembly to con­
sider recommendations “to continue our system of segre­
gated public schools.” The General Assembly responded 
by promptly adopting legislation (1) prohibiting use of 
public funds for integrated schools, closing of integrated 
schools and establishing a pupil assignment law; and (2) 
the statutes here complained of “as parts of the general 
plan of massive resistance to the integration of schools 
of the state under the Supreme Court’s decrees.”



15

The combined effect of the statutes in suit is to prevent 
Negroes in Virginia from effectively securing compliance 
with the Brown decision. In so doing, these statutes deny 
and curtail First Amendment rights of freedom of expres­
sion and other rights protected by the equal protection and 
due process clauses of the Fourteenth Amendment.

Chapters 31 and 32, requiring appellees to annually file 
membership lists and, if requested, to file lists of contribu­
tors as a prerequisite to continuing their activities, run 
afoul of the protections guaranteed by the Fourteenth 
Amendment. National Association for the Advancement of 
Colored People v. Alabama, 357 U. S. 449.

All three statutes deny free access to the courts, a right 
which has long been recognized and protected by the Con­
stitution. Terral v. Burke Construction Co., 257 U. S. 529.

While Chapters 31 and 32 seriously impair effective liti­
gation by destroying the posibility of obtaining necessary 
funds, Chapters 32 and 35 go a step further and prevent 
lawyers from continuing to participate in group sponsored 
racial segregation cases. The prohibitions in these statutes 
apply to pending as well as future litigation to bring about 
compliance with this Court’s decisions in racial segregation 
cases. Such state interference with these lawful practices 
denies liberty within the meaning of the Constitution. 
Pierce v. Society of Sisters, 268 U. S. 510; Sckware v. 
Board of Bar Examiners, 353 U. S. 232.

Appellants have not and cannot show any overriding 
justification for state interference with lawful activities. 
Their claims that these statutes are necessary to preserve 
peace and order in regard to racial matters has long since 
been declared to be without constitutional significance. 
Cooper v. Aaron, 358 U. S. 1; Buchanan v. War ley, 245 
U. S. 60.



<

The barratry statutes, while defended as expressions of 
the common law, are in fact in derogation thereof. Thall- 
heimer v. Brinckerhoff, 3 Cow. 623, 15 Am. Dec. 308 (N. T. 
Court of Errors 1824).

To an unprecedented degree in Chapter 35, and to a lesser 
degree in Chapters 31 and 32, Virginia deliberately ex­
cluded every conceivable group other than appellants from 
the restrictions of freedom of expression, enforcement of 
barratry provisions and other repressive measures. Such 
unwarranted classifications certainly deny equal protection. 
Morey v. Doud, 354 U. S. 457.

The District Court was not required by the doctrine of 
equitable abstention to postpone decision of the constitu­
tional issues pending previous consideration of the statutes 
by the state courts. The cases did not present issues 
peculiar to the state’s jurisprudence, or necessitate resolu­
tion of local law questions preliminary to consideration of 
the federal issues. The statutes are clear and unambiguous, 
and remission for definitive construction was unnecessary. 
Chicago v. Atcheson, T. & S. F. R. Co., 357 U. S. 77; 
Toomer v. Witsell, 334 U. 38. 385. There being no recognized 
policy that remission could serve, the District Court prop­
erly decided the issues here on appeal. Meredith v. Winter 
Haven, 320 U. S. 228; Doud v. Hodge, 350 U. S. 485.

Finally, whatever may be the rule as to enjoining en­
forcement of state criminal statutes in other circumstances, 
the District Court properly restrained appellants from 
enforcing Chapters 31, 32 and 35 under the circumstances 
shown in these cases. See Truax v. Raich, 239 U. S. 33; 
Pierce v. Society of Sisters, 268 IT. S. 510; Gayle v. Browder, 
352 U. S. 903, affirming 142 F. Supp. 707 (M. D. Ala. 1956).

16



17

A R G U M E N T

I.
These Virginia statutes not only curtail lawful activi­

ties o f two m em bership corporations and o f their m em ­
bers, contributors, and attorneys, but also strike at basic 
civil rights and liberties guaranteed by the Constitution.

Chapters 31 and 32 violate rights secured to appellees, 
their members, contributors and attorneys, by the due 
process and equal protection clauses of the Fourteenth 
Amendment. Chapters 31 and 32 accomplish this by re­
quiring disclosures, from the making of which appellees 
are constitutionally immune, as conditions precedent to the 
exercise of all of their major functions. Chapter 35 addi­
tionally operates to totally prohibit activities vital to their 
continued existence.

Chapter 31 provides that before appellees may solicit or 
expend funds to defray the expenses of civil rights litiga­
tion they must annually file with the State Corporation 
Commission a certified list of the names and addresses of 
their members and, if requested, the names and addresses 
of their contributors.

Chapter 32 requires registration and similar disclosures 
before either appellee may advocate compliance with the 
decision of this Court in the Brown ease or raise or expend 
funds to aid in civil rights litigation toward that end, and 
before the appellee Association may promote or oppose 
legislation in behalf of any race or color.

Chapter 35 unqualifiedly prohibits either organization 
from paying any part or all of the expenses of litigation in 
which it is not personally or pecuniarly involved.



18

The effect of these laws is to abridge, not merely one, 
but each of several constitutional freedoms to which the 
appellees may justly lay claim. Each, in the exercise 
of its right of free speech, advocates the abolition of govern- 
mentally-imposed racial discrimination, by aiding litigation 
in the civil rights field as well as by more traditional 
media, and, in the case of the Association, by promoting 
legislation according to its views. They have for many 
years exercised a liberty, inherent in due process, by as­
sisting others in their litigation to obtain protection from 
state abridgements of their federally-protected rights. 
In so doing, and by necessary exercise of their freedom of 
association, appellees, their members, contributors and 
others of a like mind have pooled their efforts and financial 
resources with a view to making possible the attainment of 
these objectives.

The legislative mandates of Chapters 31, 32 and 35 pro­
hibit the appellees, and all persons affiliated with them, 
either absolutely, or on pain of disclosure of affiliation that 
due process renders inviolate, from taking collective action 
to effectively vindicate the constitutional principles they 
each espouse. And, this is sought to be accomplished by 
legislation so framed, not only as to leave similar group 
sponsored suasion and litigation activities free from regula­
tion, but also to put the appellees “out of business by for­
bidding them to encourage and assist colored persons to 
assert rights established by the decisions” (R. 90).

A. C om pu lsory  D isclosure o f  O rganisational Affiliates W here  
E conom ic R eprisa ls and O th er M anifestations o f Public  
H o stility  W ill E nsue V iolates the F ourteen th  A m en dm en t.

There can no longer be doubt as to the protection ex­
tended by the Fourteenth Amendment against “compelled 
disclosure of affiliation with groups engaged in advocacy.” 
National Association for the Advancement of Colored Peo-



19

pie v. Alabama, 357 U. S. 449, 462. This Court there held 
invalid an Alabama court order similar to the membership 
disclosure requirements of Chapters 31 and 32, and said:

Effective advocacy of both public and private points 
of view, particularly controversial ones, is undeniably 
enhanced by group association, as this Court has more 
than once recognized by remarking upon the close nexus 
between the freedoms of speech and assembly. . . .  It 
is beyond debate that freedom to engage in association 
for the advancement of beliefs and ideas is an insep­
arable aspect of the “liberty” assured by the Due Proc­
ess Clause of the Fourteenth Amendment, which em­
braces freedom of speech.. . .  Of course, it is immaterial 
whether the beliefs sought to be advanced by associa­
tion pertain to political, economic, religious or cultural 
matters, and state action which may have the effect of 
curtailing the freedom to associate is subject to the 
closest scrutiny (at pp. 460-461).

These considerations apply with peculiar force to appel­
lees—organizations which are media of expression for those 
who affiliate to oppose racial discrimination. In Alabama, 
this Court recognized “the vital relationship between free­
dom to associate and privacy in one’s associations” (at 
p. 462) and stated:

Inviolability of privacy in group association may in 
many circumstances be indispensable to preservation 
of freedom of association, particularly where a group 
espouses dissident beliefs.

There, this Court also held that:
We think that the production order, in the respects 

here drawn in question, must be regarded as entailing 
the likelihood of a substantial restraint upon the exer­
cise by petitioner’s members of their right to freedom



2 0

of association. Petitioner has made an uncontroverted 
showing that on past occasions revelation of the iden­
tity of its rank-and-file members has exposed these 
members to economic reprisal, loss of employment, 
threat of physical coercion, and other manifestations 
of public hostility. Under these circumstances, we think 
it apparent that compelled disclosure of petitioner’s 
Alabama membership is likely to affect adversely the 
ability of petitioner and its members to pursue their 
collective effort to foster beliefs which they admittedly 
have the right to advocate, in that it may induce mem­
bers to withdraw from the Association and dissuade 
others from joining it because of fear of exposure of 
their beliefs shown through their associations and of 
the consequences of this exposure (at pp. 462-463).

Similarly, in the cases at bar, the District Court found:
[T]he Acts now before the court were passed as parts 
of the general plan of massive resistance to the integra­
tion of schools of the state under the Supreme Court’s 
decrees. The agitation involved in the widespread dis­
cussion of the subject and the passage of the statutes 
by the Legislature have had a marked effect upon the 
public mind which has been reflected in hostility to the 
activities of the plaintiffs in these cases. This has been 
shown not only by the falling off of revenues, indicated 
above, but also by manifestations of ill will toward 
white and colored citizens who are known to be sympa­
thetic with the aspirations of the colored people for 
equal treatment, particularly in the field of public edu­
cation (R. 60-61).

and that the statutes will bring about the imposition of
hostile sanctions on appellees’ members:



2 1

Begistration of persons engaged in a popular cause 
imposes no hardship while, as the evidence in this case 
shows, registration of names of persons who resist the 
popular will would lead not only to expressions of ill 
will and hostility but to the loss of members by the 
plaintiff Association (B. 79).

Here, as in Alabama, the record falls short of demonstrat­
ing “a controlling justification for the deterrent effect on 
the free enjoyment of the right to associate” which the dis­
closures required by Chapters 31 and 32 will have./To sup­
port Chapter 32, appellants say that its purposes are “ (1) to 
help in selection of deputies, and prevent deputizing a per­
son participating actively in an organization agitating vio­
lence ; (2) to identify certain known troublemakers as mem­
bers of particular organization, and to thereby identify their 
leaders; (3) to keep a check on agitators from outside the 
community; (4) a list of the members of a local organiza­
tion would apprise sheriffs of the possibilities of violence 
from such organization; and (5) a possible deterrent to 
persons against joining organizations under irresponsible 
leadership or engaged in unlawful activities” (Brief for 
Appellants, p. 58).

Chapter 31 is sought to be justified “as an aid to detect 
those persons who are engaged in barratry, maintenance, 
unauthorized practice of law and related offenses” (Brief 
for Appellants, p. 59).

Assuming arguendo that the above “justifications rep­
resent the statutes’ true purposes, and conceding the desira­
bility of a state being able to detect law violators, and sup­
press racial conflicts or violence, nevertheless such ends 
may not be achieved by denying rights secured by the Con­
stitution. Cooper v. Aaron, 358 II. S. 1; Buchanan v. War- 
ley, 245 U. S. 60, 81. Furthermore the legislative history of



2 2

the statutes, as well as their explicit exemptions for all 
but those seeking racial equality before the law, casts the 
gravest doubt on whether these considerations are in fact 
the State’s basis for having enacted the laws in question.

B . D enial o f Access to  the C ourts.

As the court below found: “The legislative history of 
these statutes to which we now refer conclusively shows 
that they were passed to nullify as far as possible the effect 
of the decision of the Supreme Court in Brown v. Board of 
Education . . . ” (R. 53). When these statutes were adopted 
there were several cases pending in federal courts in Vir­
ginia seeking compliance with the Brown decision (R. 82), 
including the Prince Edward County Case (one of the four 
cases consolidated in the Brown decision) (R. 82).

Each appellee is well known for its willingness to 
assist in litigation and to protect Negroes from unlawful 
racial discrimination (R. 82). Most of the money by which 
appellees are enabled to render charitable aid by defraying 
court costs (and, in the case of the Fund, providing legal 
assistance) is raised by public fund solicitation.

Chapters 31 and 32 require disclosure of membership 
lists, etc., as a prerequisite for such public solicitation 
as well as for such charitable aid. Chapter 35 expressly for­
bids such charitable assistance. What Chapter 35 does 
directly is also indirectly accomplished by Chapters 31 and 
32. The three statutes together effectively block access to 
the courts by Negroes in Virginia who are desirous of se­
curing judicial protection for their constitutional rights.

Unfettered access to the courts is the right of every citi­
zen. Terral v. Burke Construction Co., 257 U. S. 529. See 
Truax v. Corrigan, 257 U. S. 312, 334; Barbier v. Connolly, 
113 U. S. 27, 31; Slaughter House Cases, 16 Wall. 36; Cran­
dall v. Nevada, 6 Wall. 36, 44. The primary right of Virginia



23

residents to resort to the federal courts to secure relief 
from state-imposed racial segregation stems from the Con­
stitution itself (Article III, Section 2, Clause 1). Cases 
involving state enforced racial segregation arise under the 
Fourteenth Amendment to the Constitution and the civil 
rights statutes enacted by the Congress pursuant thereto, 
e.g., Title 42, United States Code, §§1971, 1981-83. And 
see, Title 28, United States Code, §1343(3).

Implied in this right of access to the federal courts is 
the right to assist and the right to accept assistance neces­
sary to adequately present the issues to these courts.2 The 
cases against state-imposed racial segregation are too 
costly for the average individual Negro litigant, Arrayed 
against such litigant is the state treasury, the attorney- 
general, his staff and an unlimited number of special assist­
ants, as well as attorneys-general from other southern 
states anxious “to lend a hand in the fight against the 
NAACP” (E. 472). To leave the federal courts open to 
only those litigants individually able to finance such a case 
and the appeals involved is to effectively close the door to 
the great majority of aggrieved Negro citizens.

C. D ep riva tion  o f  L iberty .

Although the Court has not assumed to define 
“liberty” with any great precision, that term is not con­
fined to mere freedom from bodily restraint. Liberty

2 As in the case of all other constitutional rights, powers, and 
duties, there are a number of rights which clearly arise by neces­
sary implication, e.g., Logan v. United States, 144 U. S. 263, held 
that there was an implied duty on the part of the United States 
to protect prisoners in its custody against lawless violence (at 
285) ; United States v. Lancaster, 44 Fed. 855, where the court 
upheld an indictment charging interference with the right to 
bring an action in the federal court. Ex parte Yarbrough, 110 
U. S. 651, involving protection of federal elections from violence 
and corruption and In re Neagle, 135 U. S. 1, involving protection 
of federal judges in the exercise of their judicial function.



24

under law extends to the full range of conduct which 
the individual is free to pursue, and it cannot be re­
stricted except for a proper governmental objective. 
Bolling v. Sharpe, 347 TJ. S. 497, 499-500.

The right to engage in lawful activities or to pursue a 
profession free from arbitrary governmental restraint is 
protected by the Constitution. Appellees’ activities are 
aimed at the eradication of racial discrimination from 
public life in America through peaceful persuasion and 
the securing of rights guaranteed Negroes by the Constitu­
tion and laws of the United States by aiding these persons 
to obtain vindication thereof in the courts.

The lawyers who cooperate with appellees toward achieve­
ment of these aims are of course engaged in the pursuit 
of their professions. Cf. Konigsberg v. State Bar of Cali­
fornia, 353 U. S. 252; Schwure v. Board of Bar Examiners 
of the State of New Mexico, 353 U. S. 232; Pierce v. Society 
of Sisters, 268 U. S. 510; Bartels v. Iowa, 262 U. S. 404; 
Meyers v. Nebraska, 262 U. S. 390.

The destructive impact of Chapter 35 on the right of 
attorneys associated with appellees to practice their pro­
fession and of appellees to render charitable legal aid is 
clear. Lawyers who volunteer their professional services 
in cases which appellees support are restricted by the 
burdensome disclosure provisions of Chapters 31 and 32, 
and, far more serious, are subject to disbarment as well 
as original penalties under Chapter 35.

In addition, as the court below held, Chapter 35 violates 
the right of appellees and the lawyers associated with them 
without due process of law by its failure to take into ac­
count the well established rule that lawyers may volunteer 
their services to the poor and exploited, Gunnels v. Atlanta 
Bar Association, 191 da. 366, 12 S. E. 2d 602, even in



25

controversial causes, In re Ades, 6 F. Supp. 467, 475 (D. 
Md. 1934), when acting for benevolent purposes, and may- 
act for charitable societies without violating the ethics of 
the profession (Canon 35, Canons of Professional Ethics, 
ABA). And as the court below found, “the activities of 
the plaintiff corporations are not undertaken for profit or 
for the promotion of ordinary business purposes, but, 
rather, for the securing of the rights of citizens without 
any possibility of financial aid.” Their activities are also 
covered by Canon 35. Finally, the court below held that 
Chapter 35 violates due process “for it is designed to put 
the plaintiff corporations out of business by forbidding 
them to encourage and assist the colored persons to assert 
rights established by the decisions” of this court (R. 281, 
298, 319).

D. V irgin ia  Has Show n No ju stifica tio n  fo r  C h apter 35 .

Appellants’ sole justification for Chapter 35 is “that the 
State is merely regulating the activities that have long 
been prohibited by the common law and condemned by the 
legal profession” (Appellants’ Brief, p. 63). Unlike the 
statute in McCloskey v. Tobin, 252 U. S. 107, Chapter 35 
is not simply a reaffirmation of a common lawT principle of 
wide acceptance. Rather, it is an undertaking to innovate 
upon the common law by introducing a prohibition of con­
duct heretofore considered valid.

Common law and statutory barratry contain two ele­
ments: (1) continuously stirring up groundless judicial 
proceedings; (2) doing so either for one’s own profit or for 
the purpose of vexing the defendants.3 Barratry, says one

3 For common law definitions see Winfield, P. H., The History 
of Conspiracy and Abuse of Legal Procedure (Cambridge 1921), 
p. 200. For a typical statutory definition see Consolidated Laws 
of New York §320 “common barratry is the practice of exciting 
groundless judicial proceedings,” and §322 “No person can be



26

writer, is closely related to maintenance; one common 
law definition holds it to be continuous maintenance.4 Pre­
cise statutory definitions of maintenance as a separate 
offense are rare,5 but at common law it was generally 
defined as the offense of officiously aiding another in his 
suit.6 Champerty is said to be a species of maintenance.7 
Widely condemned by statute,8 champerty is the offense of 
maintaining another’s suit pursuant to agreement to re­
ceive part of the proceeds.9

Barratry, maintenance and champerty reached their 
zenith in England as a concomitant of the feudal system.

convicted of common barratry except upon proof that he has 
excited actions or legal proceedings, in at least three instances, 
with a corrupt or malicious intent to vex and annoy.” See also 
Arizona Revised Statutes (1956) §13-261; California Ann. Code 
1954 §§158-159; Colorado Revised Statutes (1953) §40-7-40;
Georgia Code Ann. (1935) §26-4701; Idaho Code Ann. (1940) 
§18-1001; Illinois Statutes Ann. Chapter 38, §65; Montana Revised 
Code (1947) §94-3533-34; Nevada Revised Statutes (1957)
§199,320; New Mexico Statutes (1953) Chapter 40-26-1; North 
Dakota Revised Code (1943) Chapter 12-1716 and 1717; Okla­
homa Statutes Ann. (i937) Title 21, §§550 and 552; Pennsyl­
vania Statutes Ann. (1945) Title 18, §4306.

4 Radin, Max, “Maintenance by Champerty,” 24 California Law 
Review 48, 64 (1935).

5 See Illinois Statutes Annotated, Ch. 38, §66 and Colorado Re­
vised Statutes (1953) §40-7-41.

6 Winfield, P. H., “The History of Maintenance and Champerty,” 
35 Law Quarterly Rev. 50, 56 (1919).

7 Winfield, op. cit., supra, ftn. 3, at 131, 140.
8 Ala. Code (1940) Title 16, §53; Del. Code Annotated (1953) 

11 §371; Kentucky Revised Statutes Annotated (1955) §§372.060, 
372.080, 372.110; Maine Revised Statutes (1954) C. 135, §18; 
Michigan Statutes Annotated (1937) §27.94; New Jersey Statutes 
Annotated (1952) 2A:170-83; N. Y. Penal Law §274; Oklahoma 
Statutes Annotated (1937) Title 21, §§547, 548, 554, 558, 562-564; 
Tennessee Code Annotated (1956) 64-406, 64-407; Utah Code 
Annotated (1953) §78-51-27; Virginia Code (1950) §54-70.

9 Winfield, op. cit., supra, ftn. 3, at 131.



27

The evil consisted primarily of “support given by a feudal 
magnate to his retainers in all their suits, without any refer­
ence to their justification.” 10 “This type of support be­
came in fact one of the means by which powerful men 
aggrandized their estates and the background was unques­
tionably that of private war.” 11 The need for heavy crimi­
nal sanctions ceased with the decline of feudalism.12 Con­
sequently, although barratry and champerty remain on 
the books, convictions nowadays are rare.13

The common law soon recognized exceptions to mainte­
nance, Thallheimer v. Brinckerhoff, 3 Cow. 623, 15 Am. Dec. 
308 (New York Court of Errors 1824) noted these excep­
tions :

. . . consanquinity or affinity between the suitor and 
him who gives aid to the suit . . . relation of landlord 
and tenant, that of master and servant, acts of charity 
to the poor and the exercise of the legal profession, . . . 
(Emphasis added.)
[The laws] were intended to prevent the interference 
of strangers having no pretense of right in the subjects 
of the suit, and standing in no relation of duty to the 
suitor . . .  to prevent traffic in doubtful claims, and to 
operate upon buyers of pretended rights, who had no 
relation to the suitor or the subject, otherwise than 
as purchasers of the profits of litigation (at 647-648).

See also, Brush v. Carbondale, 299 111. 144, 82 N. E. 252 
(1907).

10 Radin, supra, ftn. 4, at 64.
11 Ibid.
12 Ibid.
13 Id. at 67.



28

With the development of a mercantile society, champerty 
has been modified to permit contingent free arrangements, 
etc.14

Statutory barratry remains essentially as set forth 
above, but an exception has developed: “ . . . the offense 
of barratry does not consist in promoting either private 
suits or public prosecutions when the sole object is the at­
tainment of public justice or private rights, but on the 
prostitution of these remedies to mean and selfish pur­
poses.” 10 See also Gunnels v. Atlanta Bar Assn., 191 Gla. 
336,12 S. E. 2d 602 (1940).

Disregarding the basic elements of barratry and the 
well established exceptions thereto, Virginia, under the 
guise of protecting the administration of justice, now de­
fines barratry in such a way as to put appellees out of 
business.16 Virginia’s definition of barratry seems never 
to have appeared before, and individual or group financing 
of litigation founded on bona fide charitable motives seems 
never to have been condemned in the past.

Because of the severity of the opposition of states offi­
cially resisting desegregation Negro citizens must act col­
lectively to secure their constitutional rights. No indi­
vidual Negro can effectively pit his strength against the 
organized resistance of state governments. Consequently, 
the challenge to state-enforced racial segregation is being 
made on a group basis. In view of this, civil rights cases

14 Id. at 68.
15139 A. L. R. 622-623, quoted in 10 Am. Jur., Champerty and 

Maintenance, §3, p. 551 (1956) (Supp. p. 53 “add, following note 
19” ) .

16 Chapter 35, Acts of Special Session, General Assembly of 
Virginia, 1956, does not make, as essential elements of the crime 
of barratry, stirring up (1) groundless suits (2) for one’s own 
profit or for the purpose of vexing the defendant.



29

have become group-sponsored litigation—an American free 
speech phenomenon.17

Group sponsorship of litigation is as indigenous to twen­
tieth century America as group sponsorship of welfare and 
charities. Groups which engage in such activity are too 
numerous to mention individually. However, they may be 
placed in the following general classifications: labor
unions,18 trade associations,19 consumer organizations,20 
nationality groups,21 bar associations,22 racial groups,23

17 Cf. Thornhill v. Alabama, 310 U. S. 88.
18 E.g., thg following publications describe cases in which labor 

unions supplied counsel or funds for members involved in litiga­
tion: _ See reprint of testimony of Walter Drew before Senate 
Judiciary Committee (1914) in “The Crime of the Century and 
Its Relation to Politics”, p. 24 (Nat’l Assn, of Manufacturers 
publication); News You Don’t Get, August 11. 1936, April 27 and 
May 5, 1938 (published by National Committee for the Defense of 
Political Prisoners), pages unnumbered; Church, S. H., “Trade 
Unionism and Crime,” New York Times, Oct. 1, 1922.

19 E.g., The National Erector’s Association retained Walter Drew 
to represent it in litigation. See reprint referred to in note 17, 
supra. It is virtually impossible to document the fact that trade 
associations support litigation involving the applicability and con­
stitutionality of laws affecting the trade since the reports of the 
cases do not give such information. Brannon v. Stark, 185 F 2d 
871 (D. C. Cir. 1950).

20 E.g., The Consumer’s League sponsored litigation involving 
the constitutionality of social welfare legislation in the 1930’s. 
Schlesinger, A. M., Crisis of the Old Order (1957) pp. 113 and 419.

21 E.g., between 1856 and 1875 the German Society provided a
special legal committee to protect newly arrived immigrants. 
Smith, R. H., Justice and the Poor (1921) p. 134, American Com­
mittee for the Defense of Puerto Rican Political Prisoners. News 
You Don’t Get, May 7, 1935, pages unnumbered, op. eit., supra 
ftn. 18. ’

22 E.g., The Atlanta Bar Association in the 1940’s sponsored liti­
gation for persons who had been victims of unscrupulous money 
loaning businesses. Gunnels v. Atlanta Bar Association, 191 Ga 
366, 12 S. E. 2d 602 (1940).

23 See New York Times feature article “Champion of the Indian ” 
March 3, 1958.



30

religious groups,24 labor defense committees,25 child welfare 
organizations,26 civil liberties groups,27 property owners,28 
tenants,29 professional groups,30 committees for protection 
of immigrants,31 and hoc committees32.

It appears that no court in the United States has ever 
denied the right of individual or group sponsorship of 
litigation as involved here where there is no agreement to 
share the proceeds and where the members of the group 
have a common or general or patriotic interest in the 
principle of law to be established. Indeed, the courts have 
expressly upheld it. Brannon v. Stark, 185 P. 2d 871 (D. C. 
Cir. 1950), aff’d 342 U. S. 451; Gunnels v. Atlanta Bar 
Assn., 191 Ga. 366, 12 S. E. 2d 602 (1940); Brush v. Car-

24 E.g., Jehovah’s Witnesses apparently sponsored a number of 
cases in this Court, e.g., Marsh v. Alabama, 326 U. S. 501, and 
Cantwell v. Connecticut, 310 U. S. 296. The Methodist Federa­
tion for Social Service provided financial assistance in the Scotts- 
boro case. News You Don’t Get, Jan. 3, 1936, pages unnumbered, 
op. cit., supra, ftn. 18.

25 International Labor Defense sponsored cases as evidenced by 
In re Ades, 6 F. Supp. 467 (D. Md. 1934).

26 E.g., The Children’s Aid Society of Boston, Smith R. H., 
Justice and the Poor (1921) p. 223.

27 E.g.,The American Civil Liberties Union. See the annual 
reports of this organization for any year.

28 E.g., Opinions of the Committees on Professional Ethics of the 
Association of the Bar of the City of New York and the New York 
County Lawyers’ Association, Columbia Univ. Press, 1956, Op. No. 
113. Hurd v. Hodge, 334 U. S. 24.

29 E.g., Shanks Village Committee Against Bent Increases v. 
Cary, 103 F. Supp. 566 (S. D. N. Y. 1952).

30 E.g., Alston v. School Board of the City of Norfolk, 112 F. 2d 
992 (4th Cir. 1940).

31 E.g., American Committee for the Protection of the Foreign 
Born assisted Otto Richter, a German refugee seeking political 
asylum. News You Don’t Get, Feb. 25, 1935, pages unnumbered, 
op. cit., supra, ftn. 18.

32 E.g., Sacco-Vanzetti Defense Committee, Schlesinger, A. M., 
Crisis of the Old Order, 1957, p. 113.



31

bondale, 299 111. 144, 82 N. E. 252 (1907); Davies v. Stowell, 
78 Wis. 334, 47 N. W. 370; Royal Oak Drain. Dist. v. Keefe, 
87 F. 2d 786 (6tli Cir. 1937); Vita-phone Corp. v. Hutchison 
Amusement Co., 28 F. Supp. 526 (D. Mass. 1939). In re 
Ades, 6 F. Supp. 467 (D. Md. 1934).33 Moreover, a 
species of such cooperative activity has been approved by 
bar associations. The Committee on Professional Ethics 
of the Association of the Bar of the City of New York 
says: “A litigant may solicit the cooperation of persons 
interested in the same question, or in establishing the 
same principle of law; and such solicitation may properly 
be done by his attorney, when it is primarily and funda­
mentally in the interest of the client . . 34 And the same
committee says: “under proper circumstances and where 
real interests are involved, lawyers may act for one party 
where legal fees and other expenses are defrayed by 
another.” 35

33 Brannon v. Stark, supra, upheld the right of certain handlers 
of milk to finance the litigation of certain milk producers. Gunnels 
v. Atlanta Bar Assn., supra, upheld the right of the Atlanta Bar 
Association to furnish counsel for the litigation of those who had 
been victims of the loan sharks. Brush v. Carhondale upheld the 
right of a citizen to finance an appeal by the city in a test case. 
Davis v. Stowell upheld the right of buyers of worthless stock 
to prosecute a test ease brought by plaintiff to determine defen­
dant’s case. Royal Oak Drain. Dist. v. Keefe upheld the right of 
a bondholders’ protective committee to bring a class suit to deter­
mine validity of bonds. Vitasphone Corp. v. Hutchison upheld the 
maintenance of a copyright protection bureau by a group of movie 
producers and distributors to protect their copyrights by bringing 
suit where necessary. In re Ades upheld the right of a lawyer, 
who had been employed by the International Labor Defense, a 
group which sponsored litigation, to volunteer his services to 
persons accused of crimes.

84 Opinions of the Committees on Professional Ethics of the 
Association of the Bar of the City of New York and the New York 
County Lawyers’ Association, Columbia University Press, 1956 
Opinion No. 343. See also Nos. 113, 170, 281, 321, 363, and 586.

35 Id, Op. No. 707. In this instance the expense bearer was merely 
interested in a final determination of the question of law as he 
might have a similar case in the future.



32

The Canons of Professional Ethics of the American Bar 
Association expressly recognize the activities of charitable 
societies in paying the expenses of the litigation of others. 
Canon 35. See also, Opinions of ABA Committee on Pro­
fessional Ethics and Grievances, Opinion 148 (1935).

The development of the law has always been toward ex­
panding the opportunities of litigants to present their cases 
as fully and completely as justice may require and to avail 
themselves of whatever assistance they need in their pre­
sentation.36 There has been continued liberalization of rules 
of procedure which has facilitated the development of 
group sponsored litigation, e.g., rules permitting class 
actions, intervention and permissive joinder. Recognizing 
that large groups of people are often interested in a deter­
mination of common questions of law and fact, the Federal 
Rules of Civil Procedure permit one member of the group 
to sue on behalf of all.37 If Virginia fears that its courts 
will become overburdened with frivolous contentions, it 
has only to look to the admonition of this Court: “The ex­
penses of litigation deter frivolous contentions. If numer­
ous parallel cases are filed, the courts have ample authority 
to stay useless litigation until the determination of a test 
case.” Stark v. Wickard, 321 U. S. 288, 310.

Virginia now seeks to reverse this trend by prohibiting 
certain activity with respect to the conduct of litigation 
which is the antithesis of this development and which has 
the singular effect, in the circumstances of this case, of 
divesting indigent Negro litigants of their only means of

3( Brownell, Emery, Legal Aid in the United States (1951); 
Smith, R. H., Justice and the Poor (1921).

37 Rule 23(a) (3) F. R. C. P. See also Opinions of the Committee 
on Professional Ethics, etc., op. cit., supra, ftn. 35, Op. No. 113 
where the Bar Association’s Committee on Professional Ethics 
affirmed the right of an attorney to ask each member of the group 
to contribute to the payment of his fee.



access to the courts. Virginia can hardly claim that this 
anomaly constitutes due process in that it merely codifies 
existing law or custom of the bar.

Virginia’s real purpose in prohibiting contributions to 
litigation is not to safeguard the administration of justice, 
but to erect an economic barrier to the courts on questions 
of racial discrimination. The exemptions contained in 
Chapter 35 support this assertion.

E. D enial o f  E qual P ro tec tion .

The Virginia legislature, recognizing the sweep of these 
statutes and the wide variety of situations in which group 
sponsorship is a necessary ingredient, has endeavored to 
exempt from their operation every conceivable type of 
group sponsored activity which does not involve a state 
imposed color restriction.

Although Chapter 35 would totally prohibit either ap­
pellee from in any way assisting the litigation of others, it 
provides an exemption from its prohibitions broad to the 
extent that all other group-sponsored litigation activities 
remain lawful:

This act shall not be applicable to attorneys who are 
parties to contingent fee contracts with their clients 
where the attorney does not protect the client from 
payment of the costs and expenses of litigation, nor 
shall this act apply to any matter involving annexa­
tion, zoning, bond issues, or the holding or results of 
any election or referendum, nor shall this act apply 
to suits pertaining to or affecting possession of or 
title to real or personal property, regardless of owner­
ship, nor shall this act apply to suits involving the 
legality of assessment or collection of taxes or the 
rates thereof, nor shall this act apply to suits involv­
ing rates or charges or services by common carriers



34

or public utilities, nor shall this act apply to criminal 
prosecutions, nor to the payment of attorneys by legal 
aid societies approved by the Virginia State Bar, nor 
to proceedings to abate nuisances. Nothing herein 
shall be construed to be in derogation of the constitu­
tional rights of real parties in interest to employ coun­
sel or to prosecute any available legal remedy under 
the laws of this State (Section 1 (f)).

In similar vein, while Chapter 32 undertakes to prohibit 
either organization from advocating racial integration, and 
from raising or expending funds for use in civil rights 
litigation, and would prohibit appellee Association from 
promoting or opposing racial legislation, it similarly con­
tains broad exemptions from its operation:

This act shall not apply to persons, firms, partner­
ships, corporations or associations who or which carry 
on such activity or business solely through the medium 
of newspapers, periodicals, magazines or other like 
means which are or may be admitted under United 
States postal regulations as second-class mail matter 
in the United States mails as defined in Title 39, 
§224, United States Code Annotated, and/or through 
radio, television or facsimile broadcast or wire service 
operations. This act shall also not apply to any per­
son, firm, partnership, corporation, association, or­
ganization or candidate in any political election cam­
paign, or to any committee, association, organization 
or group of persons acting together because of activi­
ties connected with any political campaign (Section 9).38

38 While the language in Chapter 32 attempts to place the disclo­
sure requirement on persons who support segregation as well as 
those who oppose it, such a requirement is transparent and of no 
legal significance. “Equal protection of the laws is not achieved 
through the indiscriminate imposition of inequalities.” Shelley v. 
Kraemer, 334 U. S. 1, 22.



Likewise, Chapter 31 applies only to a person or organi­
zation soliciting or expending funds to assist litigation in 
which the person or organization is neither personally nor 
pecuniarily interested or involved, and is not applicable 
to any other kind of solicitation or any other kind of ex­
penditure of funds. Section 2. The record in this case 
establishes that civil rights litigation in Virginia is usually 
by group sponsorship and that the appellees are the only 
organizations engaged as a major activity in soliciting or 
expending funds to support such activities (E. 93).

More than 70 years ago this Court declared that the 
equal protection of the laws is “a pledge of the protection 
of equal laws.” Yick Wo v. Hopkins, 118 IT. ,S. 356, 369. 
State statutory classifications violate the equal protection 
clause if based upon nonexistent differences or if the dif­
ferences are not reasonably related to a proper legislative 
objective. Morey v. Doud, 354 IT. S. 457; Skinner v. Okla­
homa, 316 IT. S. 535; Hartford Steam Boiler Inspection & 
Insurance Co. v. Harrison, 301 U. S. 459; Mayflower Farms 
v. Ten Eyck, 297 IT. S. 266; Concordia Fire Insurance Co. 
v. Illinois, 292 IT. S. 535; Smith v. Cahoon, 283 IT. S. 553; 
Nixon v. Herndon, 273 U. S. 536; Air-Way Electric Appli­
ance Corp. v. Day, 266 U. S. 71; Truax v. Raich, 239 IT. S. 
33; Southern Railway Co. v. Greene, 216 IT. S. 400. Dis­
criminations of the character outlawed by the equal pro­
tection provision are epitomized in the legislation under 
consideration. It operates to create a class embracing only 
the appellees, their members and associates, and leaves all 
others free to carry on to pursue the same character of 
activities. While the state’s alleged objective is to safe­
guard the administration of justice, it is obvious that the 
discrimination in favor of all groups except the two whose 
similar activities concern only the advancement of minority 
rights cannot meet the test of the Constitution.



36

The three-part statutory scheme places appellees in an 
insoluble dilemma: They may refuse to comply with the 
disclosure requirements, but will then be forced to operate 
under the cloud of criminal and injunctive frustration of 
their activities; at the same time the statutes’ mere exist­
ence will deter persons from joining them. On the other 
hand, appellees may register their associates’ names and 
addresses, thereby identifying their personal “political” 
beliefs and subjecting them to “barratry” prosecutions. 
Either way, the constitutional rights of appellees, their 
members, and their associates become a nullity. “Massive 
resistance” thereby becomes a legal reality.

II.

There were no legally sufficient reasons to deny ap­
pellees injunctive relief or postpone action in deference 
to the state courts.

A. T he D istric t C ourt P ro p e r ly  E n jo in ed  E n fo rcem en t o f the  
S ta tu tes W ith ou t T h eir P rev iou s C onsidera tion  by  th e  
S ta te  C ourts.

The District Court was plainly right1]n deciding the con­
stitutional issues presented by Chapters 31, 32 and 35 with­
out prior treatment of those statutes by the Virginia courts.

This position is unaffected by the doctrine of equitable 
abstention, recently restated in Meridian v. Southern Bell 
T. <& T. Co., 27 U. S. L. Week 3235 (February 24, 1959), 
that

Proper exercise of federal jurisdiction requires that 
controversies involving unsettled questions of state law 
be decided in the state tribunals preliminary to a fed­
eral court’s consideration of the underlying federal 
constitutional questions.



37

Properly applied, this principle undoubtedly promotes 
considerations of the highest order. As this Court declared 
in Government and Civic Employees Organizing Committee 
v. Windsor, 353 U. S. 364, 366,

One policy served by that practice is that of not pass­
ing on constitutional questions in situations where an 
authoritative interpretation of state law may avoid the 
constitutional issues. . . . Another policy served bŷ  
that practice is the avoidance of the adjudication of 
abstract, hypothetical issues. Federal courts will not 
pass upon constitutional contentions presented in an 
abstract rather than in a concrete form.

But these underlying policies at once define both the scope 
given the doctrine and the limitations imposed upon its use. 
While it appropriately finds expression when applied in 
furtherance of the policies it is designed to serve, its opera­
tion, by the same token, is confined to situations justifying 
its existence. See Propper v. Clark, 337 U. S. 472; Meredith 
v. Winter Haven, 320 U. S. 228. And appellees’ position, in 
sum, is that the cases at bar did not present issues demand­
ing or justifying anterior local determinations, and that the 
District Court did not abuse its discretion by deciding the 
constitutional questions.

Unlike Bur ford v. Sun Oil Company, 319 U. S. 315, and 
Pennsylvania v. Williams, 294 U. S. 176, the District Court 
was not called upon to address itself to “a specialized aspect 
of a complicated system of local law outside the normal 
competence of a federal court,” Alabama Public Service 
Commission v. Southern By., 341 U. S. 341, 360 (concurring 
opinion). The complaints addressed the Court to a con­
sideration of the limitations imposed upon the state’s legis­
lative power by the due process and equal protection clauses 
of the Fourteenth Amendment and implementing Civil 
Rights Acts, 42 U. S. C. §§1981, 1983. They presented is­



38

sues, well within the recognized talents of federal judges, 
which the district courts by explicit legislation are pecu­
liarly endowed to entertain, 28 U. S. C. §§1331, 1343. As 
the District Court stated:

It must be remembered, however, that Congress has 
not seen fit to restrict the jurisdiction of the district 
courts by imposing as a condition precedent to action 
by the federal courts, the judicial pronouncement by the 
state court in cases where the constitutionality of a 
state statute is presented and injunctive relief is re­
quested. Concurrent jurisdiction still exists until modi­
fied in the wisdom of the legislative branch of our gov­
ernment (R. 73).

And as this Court in Propper v. Clark, 337 U. S. 472, 492, 
was careful to point out:

The submission of special issues is a useful device 
in judicial administration in such circumstances as 
existed in the . . . Spector Case [Spector Motor Service 
v. McLaughlin, 323 U. S. 101] . .. and the Pullman Case 
[Railroad Commission of Texas v. Pullman Co., 312 
U. S. 496] . . . but in the absence of special circum­
stances . . .  it is not to be used to impede the normal 
course of action where federal courts have been granted 
jurisdiction of the controversy.

These cases did not encounter problems in local law to 
be preliminarily resolved before the constitutional questions 
were reached. Cf. Meridian v. Southern Bell T. <& T. Co., 
27 U. S. L. Week 3235; American Federation of Labor v. 
Watson, 327 U. S. 582; Spector Motor Service v. Mc­
Laughlin, 323 II. S. 101; Railroad Commission of Texas v. 
Pullman Company, 312 U. S. 496; Alabama Public Service 
Commission v. Southern Railroad Company, 341 U. S. 341. 
Unlike American Federation of Labor v. Watson, supra,



39

the District Court was not faced with preliminary question 
as to whether the legislation was self-executing, or, as in 
Meridian v. Southern Bell T. <& T. Co., supra, Railroad Com­
mission of Texas v. Pullman Company and Alabama Public 
Service Commission v. Southern Railroad Company, supra, 
as to whether, in terms of state law, the action complained 
of was authorized. The issues before it were not “in­
tertwined with preliminary doubts about local law,” nor was 
the court called upon to decide “questions of constitution­
ality on the basis of preliminary guesses regarding local 
law.” Spector Motor Service v. McLaughlin, supra, 323 
U. S. at 105. Consideration of the statutes here involved 
did not in any way necessitate “a tentative answer which 
may be displaced tomorrow by a state adjudication.” Rail­
road Commission of Texas v. Pullman Company, supra, 312 
U. S. at 500.

Nor could constitutional adjudication be aided by a de­
finitive construction of the statutes involved. The only 
adjudication sought or made by the District Court was the 
constitutional validity of the laws in question in their ap­
plication to the complaining organizations, and the only 
claim of ambiguity advanced by appellants (Brief, pp. 
37-40) is as to whether they did so apply. The language 
of these statutes creates no uncertainty as to their require­
ments or their prohibitions, or as to whom they are directed.

Compliance with Chapter 31 explicitly demands informa­
tion, which appellees assert is constitutionally protected 
against disclosure, of every “person” soliciting or expend­
ing funds to support litigation “unless such person is a 
party” or “has a pecuniary right or liability therein” (§2).39

39 Chapter 31, §2 provides that “No person shall engage in the 
solicitation of funds from the public or any segment thereof when 
such funds will be used in whole or in part to commence or to 
prosecute further any original proceeding, unless such person is 
a party or unless he has a pecuniary right or liability therein, nor



40

“Person” is defined as meaning “any . . . corporation or as­
sociation, whether formally or informally organized” (§1). 
We see no uncertainty in this language, and it was clear 
from the evidence that both appellees regularly solicit and 
expend funds for litigation to which neither is a party and 
in which neither has a pecuniary right or liability.

The application of Chapter 32 is equally clear. It under­
takes to require registration by, and information which 
appellees claim to be constitutionally immune from supply­
ing, of “every . . . corporation or association . . . which 
engages as one of its principal functions or activities in 
the promoting or opposing in any manner the passage of 
legislation by the General Assembly in behalf of any race 
or color,” or “which has as one of its principal functions 
or activities the advocating of racial integration or segrega­
tion” or “which is engaged or engages in raising or expend­
ing funds for the employment of counsel or payment of 
costs in connection with litigation in behalf of any race or 
color in this state” (§2).40 Again, we see nothing ambiguous

shall any person expend funds from whatever source received to 
commence or to prosecute further any original proceeding, unless 
such person is a party or has a pecuniary right or liability therein, 
until any person shall first” comply with the disclosure require­
ments set forth therein.

40 §2. Every person, firm, partnership, corporation or associa­
tion, whether by or through its agents, servants, employees, officers, 
or voluntary workers or associates, who or which engages as one 
of its principal functions or activities in the promoting or opposing 
in any manner the passage of legislation by the General Assembly 
in behalf of any race or color, or who or which has as one of its 
principal functions or activities the advocating of racial integra­
tion or segregation or whose activities cause or tend to cause racial 
conflicts or violence, or who or which is engaged or engages in 
raising or expending funds for the employment of counsel or pay­
ment of costs in connection with litigation in behalf of any race 
or color in this State, shall, within sixty days after the effective 
date of this act and annually within sixty days following the first 
of each year thereafter, cause his or its name to be registered with



41

in the language of this statute in terms of application to the 
appellees, or of its prohibition when its demands are not 
satisfied.

Similarly, Chapter 35 clearly applies to the appellees 
and prohibits their activities in support of litigation. These 
are accomplished by meticulous phrasing of the definitions 
and components of the “barratry” it undertakes to pro­
scribe.41 “Barratry” is “the offense of stirring up litiga­

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

41 §1. Definitions.
(a) “Barratry” is the offense of stirring up litigation.
(b) A “barrator” is an individual, partnership, association or 

corporation who or which stirs up litigation.
(c) “Stirring up litigation” means instigating or attempting to 

instigate a person or persons to institute a suit at law or equity.
(d) “Instigating” means bringing it about that all or part of 

the expenses of the litigation are paid by the barrator or by a 
person or persons (other than the plaintiffs) acting in concert 
with the barrator, unless the instigation is justified.

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



42

tion” which, in turn, means “instigating or attempting to 
instigate a person or persons to institute a suit at law or 
equity” (§lc). “Instigating” means “bringing it about that 
all or part of the expenses of the litigation are paid by 
the barrator or by a person or persons (other than the 
plaintiffs) acting in concert with the barrator, unless the 
instigation is justified” (§ld). “Justified” is given a defini­
tion which by no process of construction could exempt ap­
pellees from the operation of the act. We see no need for, 
or possibility of, refinement of these exacting definitions 
by process of “construction” by a state court.

These cases did not present a situation where decision of 
the constitutional questions could be avoided or aided by 
state court interpretation of the legislation in question. Cf. 
Albertson v. Millard, 345 U. S. 242; Chicago v. Fielderest 
Dairies, 316 U. S. 168; Government and Civic Employees 
Organizing Committee v. Windsor, 353 U. S. 364; Spector 
Motor Service v. McLaughlin, 323 U. S. 101. The propriety 
of remission for state court construction is limited by the 
need for interpretation as a firm predicate for constitutional 
determination, or as a possibility of avoiding such deter­
mination, and the rule applied in these cases has no legiti­
mate operation where, as here, the applicability, scope and 
impact of the statutes are clear. Chicago v. Atchison, T. & 
S. F. R. Company, 357 U. S. 77; Public Utilities Commission 
v. United States, 355 U. S. 534; Toomer v. Witsell, 334 U. S. 
385; Bryan v. Austin, 148 F. Sujjp. 563, 567-568 (E. D. S. C. 
1957, dissenting opinion), vacated as moot 354 U. S. 933. 
See also General Box Company v. United States, 351 U. S. 
159; Morey v. Dowd, 354 U. S. 457. Consequently, in Chi­

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

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



43

cago v. Atchison, T. <& 8. F. R. Co., supra, the majority of 
this Court declined to apply the abstention doctrine where 
it saw “no ambiguity in the section which calls for interpre­
tation by the state courts,” and pointed out that “remission 
to those courts would involve substantial delay and ex­
pense, and the chance of a result different from that reached 
below, on the issue of applicability, would be slight” (357 
U. S. at 84). Likewise, in Toomer v. Witsell, supra, this 
Court disposed of constitutional issues where there was 
“neither need for interpretation of the statutes nor any 
other special circumstance requiring the federal courts to 
stay action pending proceedings in the State courts” (334 
U. S. at 392, ftn.). The late Judge John J. Parker, in Bryan 
v. Austin, supra, delineated this principle in the following 
language:

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



44

The District Court was fully reverent to the admonition 
of this Court that “federal courts should avoid passing on 
constitutional questions in situations where an authorita­
tive interpretation of state law may avoid the constitutional 
issues” (R. 70-71). It also recognized that it was free to 
pass upon the constitutional questions “if the state statutes 
at issue are free from doubt or ambiguity” (R. 72). It felt 
that this Court “has endeavored to grant cautious discretion 
to district courts in determining whether jurisdiction should 
be exercised and the matter considered on its merits, as 
contrasted with the acceptance of jurisdiction as such” (R. 
73). And it concluded, rightly we submit, that the circum­
stances of the case did not warrant the application of the 
doctrine of absention:

We are advised that Virginia is not alone in enacting- 
legislation seriously impeding the activities of the 
plaintiff corporations through the passage of similar 
laws (43 Va. L. Rev. 1241). As heretofore noted, the 
problem for determination is essentially a federal ques­
tion with no peculiarities of local law. Where the stat­
ute is free from ambiguity and there remains no rea­
sonable interpretation which will render it constitu­
tional, there are compelling reasons to bring about an 
expeditious and final ascertainment of the constitu­
tionality of these statutes to the end that a multiplicity 
of similar actions may, if possible, be avoided (R. 73).

We do not understand, as appellants contend (Brief, 
pp. 29-37), that the District Court felt that stay of the pro­
ceedings before it would be in order only if the statutes 
in question were ambiguous. On the contrary, it stated that 
it should abstain “where an authoritative interpretation 
of state law may avoid the constitutional issues” (R. 70-71), 
and that there might be occasion to do so either because 
“the interpretation of a state statute is doubtful” (R. 71),



45

or “a question of law remains undecided” (R. 71), or be­
cause of “the necessity of maintaining the delicate balance 
between state and federal courts under the concept of 
separate sovereigns” (R. 72), or because of circumstances 
“requiring special competency in interpretation of local 
law” (R. 72). We submit that the District Court considered 
the full range of possibilities of state court remission under 
the decisional doctrine of this Court.

Nor do we understand, as appellants urge (Brief, pp. 37- 
38), that the District Court undertook to interpret the 
statutes in suit, or felt that it needed to do so. I t was care­
ful to point out42 that it examined the legislative history of 
these statutes (R. 53-60) merely to ascertain “legislative 
purpose” which, in its view, is “of primary importance in 
determining the propriety of legislative action” (R. 60), 
and it concluded that this examination, which it denominated 
“a study of legislative purpose” (R. 60), “conclusively 
shows that they were passed to nullify as far as possible 
the effect of the decision of the Supreme Court in Brown

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



46

v. Board of Education, 347 U. S. 483 and 349 U. S. 294” (E. 
53). “Usually a court looks into legislative history to clear 
up some statutory ambiguity,” it said, “but such ambiguity 
is not the sine qua non for a judicial inquiry into legisla­
tive history” (E. 60). And when it measured the statutes 
by constitutional requirements, it addressed itself to their 
plain language, it concluded that “the two registration stat­
utes, Chapters 31 and 32, are free from ambiguities which 
require a prior interpretation by the courts of the state” 
(E. 73-74) and that “Chapter 35 . . . contains a carefully 
phrased definition of the crime of barratry and is free from 
ambiguity” (E. 85). We do not find here a resort to legisla­
tive background as a means of resolving doubt as to what 
these laws were intended to accomplish.

Appellants’ real position seems to be fairly summarized 
in the following statement:

A federal court of equity should not decide that a 
state statute is constitutional or unconstitutional until 
definite determinations have been made by a state court. 
This is true though the provisions of such statutes ap­
pear to be free of doubt or ambiguity. (Appellants’ 
Brief, p. 30.)

If by this statement appellants mean that a federal court 
should not undertake to pass upon the constitutionality of 
a statute until it has first been edited by a state court, the 
contention is doomed to failure. Doud v. Hodge, 350 U. S. 
485; Chicago v. Atchison, T. & S. F. R. Company, 357 U. S. 
77; Public Utilities Commission v. United States, 355 U. S. 
534; Toomer v. Witsell, 334 U. S. 385. Moreover, federal 
courts of equity withhold their relief only “in furtherance 
of a recognized, defined public policy,” Meredith v. Winter 
Haven, 320 U. S. 228, 235, and appellants point to no such 
policy to be served by remission, or as to what “definite



47

determinations” are essential to proper consideration of the 
questions.

The proposition upon which appellants rely is not sus­
tained by the cases they cite. In Albertson v. Millard, 345 
U. S. 242, the Michigan statutes contained definitions sus­
ceptible of more than a single interpretation, so that the 
case had to be remitted to the state court for constructional 
purposes. Similarly, in Government and Civil Employees 
Organising Committee v. Windsor, 353 U. S. 364, it was un­
certain whether the plaintiff organization was a “labor 
union or labor organization” within the meaning of the 
Alabama statute under attack, and, similarly, the case was 
held in abeyance pending that determination in the state 
courtroom. Likewise, in American Federation of Labor v. 
Watson, 327 U. S. 582, it was necessary to resolve, prior to 
reaching the constitutional issues, the questions whether 
Florida’s right-to-work constitutional amendment was self­
executing, and other important issues of state law as well, 
to take the guesswork out of the decisions. And in Spector 
Motor Service v. McLaughlin, 323 U. S. 101, it was neces­
sary to construe a Connecticut tax statute to determine 
whether it was at all applicable to the party complaining. 
None of these problems is present in the cases at bar.

Appellants’ additional claim (Brief, pp. 36-37), that the 
constitutional determinations should have been postponed 
pending state court determination of the possibilities of 
severability of these laws, is equally without merit. Chap­
ter 35 is a statute single both in purpose and prohibition; 
as to it, the occasion for severance is foreclosed. See Wil­
liams v. Standard Oil Co., 278 U. S. 235. Chapter 31 con­
tains no legislative suggestion of separability, and is pre­
sumptively unseverable. Williams v. Standard Oil Co., 
supra, 278 U. S. at 241-242. Nor is the issue as to Chapter 
32 resolved by its severability clause—“an aid merely; not



48

an inexorable command,” Dorchy v. Kansas, 264 U. S. 286, 
290; Williams v. Standard Oil Co., supra, 278 IT. S. at 241— 
which could not save any part which might be held unob­
jectionable and separable unless it appears that “standing 
alone, effect can be given to it, and that the legislature in­
tended the provision to stand in case others included in the 
act and held bad should fall.” Williams v. Standard Oil 
Co., supra, 278 U. S. at 241. Here, as in Meyer v. Wells, 
Fargo d  Co., 223 U. S. 298, 302, there is “no possible 
construction on which it could be upheld without being 
so remodeled that it would be a mere speculation whether 
the legislature would have passed it in the new form.” 
See also Williams v. Standard Oil Co., supra; Myers v. 
Anderson, 238 U. S. 368. In any event, the action of 
the District Court is free from criticism. Absent a con­
trolling state decision, it properly determined for its pur­
poses the severability issue, Dorchy v. Kansas, supra, 264 
U. S. at 291; Williams v. Standard Oil Co., supra; Myers 
v. Anderson, supra; and the decisions of this Court make it 
plain that the possibility of a state decision favorable to 
separability of a law, whether or not it contains a sever­
ability clause, is not sufficient to require postponement of 
the federal court’s decision on the constitutional issues. 
Dorchy v. Kansas, supra; Williams v. Standard Oil Co., 
supra; Meyer v. Wells, Fargo d Co., supra. See also Morey 
v. Doud, 354 U. S. 457; Skinner v. Oklahoma, 316 U. S. 535.

B. T he Cases at B ar P resen t C ircum stances W hich W arran ted  
E n jo in in g  th e C rim inal S ta tu tes in Suit.

The remaining contention advanced in support of appel­
lant’s argument that the District Court should have withheld 
exercise of its jurisdiction in the cases at bar is bottomed 
upon the time-honored rule that equity will not enjoin en­
forcement of criminal statutes. Appellants answer that this 
rule is not inflexible and submit that, under the circum­



49

stances presented here, its application was neither required 
nor warranted.

The circumstances of these cases have already been de­
tailed in our Statement of the Case, suprh at 8-10, 13-14, 
where appellees showed great present and greater potential 
injury to their property and the personal rights of their 
members, contributors and attorneys. This showing is not 
controverted. And appropros its consideration of the argu­
ment made here, the District Court summarized:

The penalties prescribed by the statutes are heavy 
and they are applicable not only to the corporation[s] 
but to every person responsible for the management of 
[their] affairs, and under Chapter 32 of the statutes 
each day’s failure to register and file the required 
information constitutes a separate punishable offense. 
The deterrent effect of the statutes upon the acquisi­
tion of members, and upon the activities of the lawyers 
of the plaintiffs under the threat of disciplinary ac­
tion has already been noted, and the danger of immedi­
ate and persistent efforts on the part of the state au­
thorities to interfere with the activities of the plaintiffs 
has been made manifest by the repeated public state­
ments (R. 70).

And concluded:
The facts of the cases abundantly justify the exercise 
of the equitable powers of the court. Ex parte Young, 
209 U. S. 123, 147; Truax v. Raich, 239 U. S. 33; West­
ern Union Telegraph Co. v. Andrews, 216 TJ. S. 165; 
Sterling v. Constantin, 287 U. S. 378 (Id.).

Circumstances such as these prompted this Court to 
announce and frequently follow the rule that equitable 
jurisdiction will be exercised to enjoin the threatened en­



50

forcement of state criminal statutes which contravene the 
Federal Constitution whenever it is essential in order to 
protect property rights and the rights of persons against 
injury otherwise irremediable. See, e.g., Tyson & Bro. v. 
Blanton, 273 U. S. 418; Pierce v. Society of Sisters, 268 
TJ. S. 510; Hygrade Provision Co. v. Sherman, 266 U. S. 
497; Packard v. Banton, 264 U. S. 140; Terrace v. Thomp­
son, 263 U. S. 197; Adams v. Tanner, 244 U. S. 590; Truax 
v. Raich, 239 U. S. 33.43

Appellants do not dispute the vitality of this, but they 
say that it may not be relied upon here because “appellees 
merely alleged in their complaints that appellants were 
charged with the enforcement of Chapters 31, 32 and 35” 
(App. Brief, p. 23). To this we say that the threat to 
enforce these statutes is no less real and imminent than 
that sustained by this Court in Euclid v. Ambler Realty Co., 
272 U. S. 365; Pierce v. Society of Sisters, supra; Truax 
v. Raich, supra; Pennsylvania v. West Virginia, 262 U. S. 
553; and Vicksburg Waterworks Co. v. Vicksburg, 185 U. S. 
65. See Carter v. Carter Coal Co., 298 U. S. 238, 284, 287- 
288.44

True, as appellees stress, the Court has observed that 
the fact that “state officials stood ready to enforce their 
duties should they acquire knowledge of violations” was 
not sufficient for the exercise of equity jurisdiction in the 
circumstances of Watson v. Buck, 313 U. S. 387. But, we 
submit that Watson v. Buck, neither in terms nor in effect 
overruled those authorities. For in Gayle v. Browder, 352

43 Cf. Hynes v. Grimes Packing Co., 337 U. S. 86; Utah, Fuel Co. 
v. National Bituminous Coal Comm., 306 U. S. 56; Philadelphia 
Co. v. Stimson, 223 U. S. 605, all of which involved federal statutes 
or regulations with punitive sanctions.

44 And see Davis, Ripeness of Governmental Action for Judicial 
Review, 68 Harv. L. Rev. 1122 (1955).



51

U. S. 903, a later case presenting the same factual issue, 
this Court affirmed 142 F. Supp. 707 (M. D. Ala. 1956) 
over the state officials’ declaimers of threatened enforce­
ment and an argument based upon Watson v. Buck (Juris­
dictional Statement for Appellants in Mo. 343, October 
Term 1956, pp. 3, 6-8; Jurisdictional Statement for Appel­
lants in No. 342, October Term 1956, pp. 3-4, 7, 12, 15; 
Petition For Rehearing in No. 342, pp. 2-3). See Morrison 
v. Davis, 252 F. 2d 102 (5th Cir. 1958), cert, denied 356 
U. S. 968.

Moreover, whatever may be the rule as to threatened 
enforcement in other circumstances, this Court, when faced 
with a factual situation not unlike this in Euclid v. Ambler 
Realty Co., 272 U. S. 365, ruled that where legislation pre­
scribing penalties for violations is assailed on grounds of 
repugnance to the Fourteenth Amendment and there is a 
showing that legislation of its own force operates to de­
stroy rights secured thereunder and the attack is directed 
against the legislation in its entirety rather than any spe­
cific provision or provisions

the existence and maintenance of the [legislation], in 
effect constitutes a present invasion of [appellants’] 
property rights and a threat to continue it. Under 
these circumstances, the equitable jurisdiction is clear 
(Id., at 386).

Finally, what we have here is legislation making the 
further prosecution of litigation in federal courts a crime 
under the laws of the Commonwealth of Virginia. This is 
in effect an effort to curtail the jurisdiction of federal 
courts—litigation in the federal courts of the type thwarted 
by these statutes can only be maintained by litigants sup­
ported by appellees. Such a calculated interference with 
the right to maintain litigation in federal courts is not the



52

proper subject for state court determination. Rather, it 
should be the particular province of the federal courts to 
protect their jurisdiction.

CONCLUSION

Failure to affirm the judgment of the court below would 
produce the same results as would have occurred on failure 
to issue the injunction herein involved:

We have come perforce to these final conclusions 
since the contrary position cannot be justly entertained. 
If the Acts of the General Assembly of Virginia should 
be held to outlaw the activities of the plaintiff cor­
porations, the Commonwealth would be free to use all 
of its resources in its search for lawful methods to 
postpone and, if possible, defeat the established con­
stitutional rights of a body of its citizens, while the 
colored people of the state would be deprived of the 
resources needed to resist the attack in the state and 
federal courts. The duty of this court to avoid such 
a situation, if possible, is manifest (R. 93).



53

W i-ie r b f o e e , appellees respectfully submit the judgment 
of the district court should be affirmed.

Respectfully submitted,

R obert L . C arter

20 West 40th Street 
New York, New York

Oliv er  W. H il l
118 East Leigh St.
Richmond, Virginia

Attorneys for Appellee National 
Association for the Advancement 
of Colored People

T hurgood  M a rshall  
10 Columbus Circle 
New York, New York

S pottsw ood  W. R o b in so n , III 
623 North Third Street 
Richmond, Virginia

Attorneys for Appellee NAACP 
Legal Defense and Educational 
Fund, Inc.

C h a rles  L . B la c k , J r . 
E lwood H. C h iso l m  
W il l ia m  T . C o lem a n , J r . 
I rm a  R . F eder 
J ack  Green berg  
C o n sta n ce  B a k er  M otley  
L ouis  H. P ollak  

Of Counsel



54

Certificate of Service

I hereby certify that copies of the foregoing Brief for 
Appellees have been served by depositing the same in a 
United States mail box, with first class postage prepaid, 
to the following counsel for appellants:

Albertis S. Harrison, Jr.
Attorney General of the Common­

wealth of Virginia 
Richmond, Virginia
David J. Mays 
Henry T. Wickham 
1407 State-Planters Bank Building 
Richmond 19, Virginia
J. Segar Gravatt
Blackstone
Virginia
Tucker, Mays, Moore & Reed 
1407 State-Planters Bank Building 
Richmond 19, Virginia

on this 13th day of March, 1959.

T htjegood M arsh a ll  
Counsel for Appellees



3a