Sellers v. Browder Motion to Affirm

    IN  T H E

Ihtprm? Gkimt nf %  Mnltib States
O cto b e r T erm , 1956

No. 343

W. A. GAYLE, CLYDE SELLERS, and FRANK PARKS', 
individually, and as members of tbe Board of Commis­
sioners, of the City of Montgomery, Alabama, and 
GOODWYN J. RUPPENTHAL, individually, and as 
Chief of Police of the City of Montgomery, Alabama, 
and the MONTGOMERY CITY LINES, INC., a Cor­
poration, and JAMES F. BLAKE and ROBERT 
CLEERE, and C. C. (Jack) OWEN, JIMMY HITCH­
COCK, and SIBYL POOLE, as members of the ALA­
BAMA PUBLIC SERVICE COMMISSION,

Appellants,
v.

AURELIA S. BROWDER, and SUSIE McDONALD, and 
CLAUDETTE COLVIN, by Q. Colvin, next friend, and 
MARY LOUISE SMITH, by Frank Smith, next friend, 
and others similarly situated,

Appellees.

O n A p p e a l F ro m  th e  U n ited  S ta te s  D istric t C o u rt fo r  th e  
M idd le  D istric t o f  A lab a m a , N o rth e rn  D ivision

MOTION TO AFFIRM

R obert L. Carter,
T hurgood Marshall,

107 West 43rd Street,
New York 36, New York, 

F red D. Gray,
Charles D. L angford,

Attorneys for Appellees.



i N D E X

PAGE

Statement .................................................................... 2
Argument ................................................................,. §
Conclusion...................................................................   7

Fable of Cases Cited

Bolling v. Sharpe, 347 IT. S. 497 ...............................  4, 6
Brown v. Board of Education, 347 IT. S. 483 ............. 4, 6
Buchanan v. Warley, 245 IT. S. 6 0 .............................  6
Cleveland v. United States, 323 U. S. 329 ..................  4
.Douglass v. Jeannette, 319 U. S. 157 ........................ 3
Fleming v. South Carolina. Gas & Electric Co., 224 

F. 2d 852 (4th Cir. 1955) ........................................  6, 7
Henderson v. United States, 339 U. S. 816 ............... 7
Holmes v. City of Atlanta, 350 U. S. 879 .................. . 4,: 6
Keyes, Sarah, v. Carolina Coach Co., -— I, C. C. —, . ' - 

decided November 7,, 1955 .....................................   7
Mayor & City of Baltimore, et al. v. Dawson, 350 

U. S. 877 ....................   4,6
McLaurin v. Oklahoma State Regents, 339 U. S. 637 4
National Association for the Advancement of Col­

ored People, et al. v. St. Louis-San Francisco Rail­
way Company, et al., — I. C. C. —■, decided Novem­
ber 7, 1955 .....................................................  7

Plessy v. Ferguson, 163 U. S. 537 .............................  6, 7
Shelley v. Kraemer, 334 U. S. 1 ...............................  6
Smith v. Allwright, 321 U. S. 649 .............................  4
South Carolina Gas & Electric Co. v. Flemming, 351

U. S. 9 01 .................................................................. 2
Spielman Motor Sales Co. v. Dodge, 295 U. S. 189 . . 4



n

Statutes and Rules Cited
PAGE

Code of Alabama, Title 48., 1940, as amended.........  2, 3
Code of the City of Montgomery, Chapter 6, Sections 

10 and 1 1 .................................................................. 2, 3
Interstate Commerce Act (Title 49, U. S. Code):

Section 3 (1) ........................................................ 6,7
Section 316 (d) ....................................................  7

United States Constitution, Fourteenth Amendment 4
Rule 16 of the Rules of U. S. Supreme C ourt........... 1

Authorities Cited

Moore, “ Commentary on the U. S. Judicial Code,” 
page 554 ............................................................... 7

Note 114 at pp. 552 and 554 with Robertson and Kirk- 
ham, “ Jurisdiction of the Supreme Court of the 
United States, Section 125 ” .................................. 7



IN  T H E

Iktprem? (ftmtrt of %  Initeft States
O cto b e r T erm , 1956 

No, 343

------- ------------- o---------------------

W. A. Gayle, Clyde Sellers, and F rank P arks, individu­
ally, and as members of the Board of Commissioners, 
of the City of Montgomery, Alabama, and Goodwyn J. 
R uppenthal, individually, and as Chief of Police of the 
City of Montgomery, Alabama, and the Montgomery 
City L ines, I nc.,, a Corporation, and J ames F . Blake 
and R obert Cleere, and C. C. (Jack) Owen, J immy 
Hitchcock, and S ibyl P oole, as members of the A la­
bama P ublic Service Commission,

Appellants. 
v.

Aurelia S'. Browder, and S usie McDonald, and Claudette 
Colvin, by Q, Colvin, next friend, and Mary L ouise 
Smith , by Frank Smith, next friend, and others simi­
larly situated,

Appellees.
o-

O n  A p p e a l F ro m  th e  U n ited  S ta te s  D istric t C o u rt fo r  th e  
M idd le  D istric t o f A lab a m a , N o rth e rn  D ivision

MOTION TO AFFIRM

Pursuant to Rule 16 of the Revised Rules of the 
Supreme Court of the United States, appellees move that 
the judgment and decree of the court below be affirmed on 
the ground that the questions raised in this appeal are 
without substance in law and in fact, and that the judg­
ment of the court below is clearly correct in that it accords 
with this Court’s interpretation of the meaning and scope 
of equal protection and due process of law.



Statement

Appellees are American citizens of Negro origin and 
are residents of Montgomery, Alabama. Solely because of 
their race and color, they and other Negroes who use public 
transportation facilities operating within the City of Mont­
gomery have been forced to submit to discriminatory treat­
ment in the use of these facilities pursuant to state statutes 
and ordinances requiring the segregation of Negro and 
white passengers on public transportation facilities within 
the. state. The statutes and ordinances in question are 
Section 301 (31a, 31b and 31c), Title 48, Code of Alabama, 
19401, as amended, and Sections 10 and 11 of Chapter 6 of 
the Code of the City of Montgomery.

Appellees instituted the action below seeking to enjoin 
the enforcement of the state’s policy, as evidenced by the 
statutes and ordinances heretofore cited, by appellants on 
the ground that racial segregation in the use of transpor­
tation facilities constituted an infringement of rights 
secured under the equal protection and due process clauses 
of the Fourteenth Amendment.

Appellants, the Board of Commissioners of the City of 
Montgomery and members thereof, the Chief of Police and 
the Montgomery City Lines conceded in answer to the com­
plaint that they enforce the segregation of the races on the 
Montgomery City Lines pursuant to state law. Appel­
lants, the Alabama. Public Service Commission and mem­
bers thereof, submitted that they have no authority to en­
force segregation on said lines, but it is conceded that the 
Chairman of said Commission, C. C. (Jack) Owen, one of 
the appellants here, did seek to assert such authority.

On April 23 past, this Court dismissed the appeal in 
Siouth Carolina Gas & Electric Co. v. Flemming, 351 U. S. 
901. The Montgomery City Lines, Inc., interpreted that 
decision as barring the segregation of passengers in intra­



state commerce and announced that it would no longer 
enforce segregation over its lines. On April 24, appellant, 
C. C. (Jack) Owen, as President of the Alabama Public 
Service Commission, sent a telegram to the National City 
Bus Lines of Chicago, of which the Montgomery City Lines, 
Inc. is a subsidiary, and to other operators of bus com­
panies in Alabama, directing them “ to strictly adhere to 
all present existing segregation laws in our state or suffer 
the consequences.”

The court below found the statutes and ordinances in 
question unconstitutional and void and enjoined their en­
forcement on the ground that they violated the require­
ments of the equal protection and due process clauses of 
the law. Execution of the injunction, however, was stayed 
pending the filing of an appeal to this Court.

Argument

1. The issue in this case is whether the state policy of 
Alabama, as set forth in Section 301 (31a, 31b and 31c), 
Title 48, Code of Alabama 1940, as amended, and Sections 
10 and 11 of Chapter 6 of the Code of the City of Mont­
gomery, requiring the segregation of the races in public 
transportation conforms to requirements of the Fourteenth 
Amendment to the Constitution of the United States. The 
doctrine that the federal courts will not interfere to enjoin 
state criminal prosecution asserted by appellants, the Board 
of Commissioners, et al., citing Douglass v. Jeannette, 319 
U. S. 157, is not applicable here. Appellees did not seek to 
enjoin the enforcement of a criminal prosecution as was 
the case in Douglass v. Jeannette. All appellees have been 
subjected to embarrassment and humiliation in the enforce­
ment of the state law and some have been jailed and con­
victed for violation thereof. Appellees, however, did not 
seek to enjoin prosecution of any sort. Nor did they assert 
or seek to assert that the state could be enjoined from prose-



4

outing persons for a violation of its laws. Appellees merely 
sought a declaratory judgment that the state policy was 
unconstitutional and an injunction barring its enforcement. 
As such, appellees were doing merely what had been held 
to be appropriate in a long line of cases rendered by this 
Court. See McLaurin v. Oklahoma State Regents, 339 
IT, S. 637; Brown v. Board of Education, 347 IT. S. 483 ; 
Bolling v. Sharpe, 347 IT. S. 497; Spielman Motor Sales Co. 
v. Dodge, 295 IT. S. 189; Cleveland v. United States, 323 
IT. S. 329.

The questions raised in this case are not such as to war­
rant a federal court withholding jurisdiction on the ground 
that the questions involved are of such peculiar local con­
cern that they should be left to determination of the state 
courts. The extent to which the equal protection and duo 
process clauses of the Fourteenth Amendment restrict state 
power to regulate public facilities so as to impose distinc­
tions based upon race is a question of national concern 
which must ultimately be determined by this Court. And 
there has been shown here no peculiar local circumstances 
which would warrant a federal court, once its jurisdiction 
had been properly invoked as here, in holding that a state 
court is more equipped to settle that question. Certainly 
this is no greater question of local concern raised here than 
was present in Brown v. Board of Education, supra; 
McLaurin v. Oklahoma State Regents, supra; Smith v. 
Allwright, 321 U. S. 649; Mayor & City of Baltimore, et al, 
v. Dawson, 350 U. S. 877; or Holmes v. City of Atlanta, 
350 IT. S’. 879.

The Alabama Public Service Commission asserts that 
the Public Service Commission has never attempted to en­
force the statutes and ordinances relating to segregation of 
the races on buses operated by the Montgomery City Lines, 
and that the Motor Carriers Act specifically does not apply 
to motor vehicles for hire while operating wholly within 
the limitations of a city or incorporated town or within the



police jurisdiction thereof. The court below, we submit, 
answered that objection completely when it said:

The members of the Alabama Public Service 
Commission object to their joinder as parties de­
fendant and move to dismiss the action as against 
them because they say that neither they nor the 
Commission have any jurisdiction over the buses 
which are being operated within the City of Mont­
gomery and its police jurisdiction.

In the Act approved July 6, 1945, General Acts 
of Alabama 1945, p. 731, now carried into the pocket 
supplement of the 1940 Code of Alabama as Title 48, 
§301 (31a), see footnote 1, supra, appears the fol­
lowing significant paragraph: ‘The provisions of 
this section shall be administered and enforced by 
the Alabama Public Service Commission in the man­
ner in which provisions of the Alabama Motor Car­
rier Act of 1939 are administered and enforced.’

Testifying as a witness, the President of the 
Alabama Public Service Commission admitted that 
on April 24, 1956, he sent a telegram to the National 
City Lines of Chicago, of which the Montgomery 
City Lines, Inc., is a subsidiary, reading as follows:

‘As President of the Alabama Public Service 
Commission, elected by the people of Alabama, 
sworn to uphold the segregation laws of this state, 
which include all forms of public transportation, I 
hereby defy ruling handed down by the United 
States Supreme Court ordering* desegregation on 
public carriers. Alabama state law requiring seg­
regation of the races on buses still stands. All pub­
lic carriers in Alabama, are hereby directed to 
strictly adhere to all present existing segregation 
laws in our state or suffer the consequences.

/ s /  C. C. (Jack) Owen, President, 
Alabama Public Service.’



That telegram was sent without the knowledge or 
concurrence of the other two Commissioners.

Since the 1945 Act expressly imposes on the 
Alabama Public Commission the duty of administer­
ing and enforcing its requirements as to segregation 
of the races, and since the President of the Commis­
sion has acted so positively and affirmatively to that 
end, the motion to dismiss the action as against the 
members of the Alabama Public Service Commis­
sion should be and the same is hereby denied.

2. The basic question in this case is whether the statute 
and ordinance in question can be upheld as valid and con­
stitutional enactments under the doctrine of Plessy v. Fer­
guson, 163 U. S. 537. It is true, of course, that this Court 
has not specifically overruled Plessy v. Ferguson in respect 
to intrastate commerce, but the Court has so defined and 
interpreted equal protection and due process in other areas 
as to make it evident that Plessy v. Ferguson is no longer 
controlling. This Court has struck dovm racial discrimina­
tion and segregation in housing, Buchanan v. Warley, 245 
[J. S. 60; Shelley v. Kraemer, 334 II. S. 1; in the field of 
public education, Brown v. Board of Education, supra; 
Bolling v. Sharpe, supra; and in respect to recreational 
facilities, Mayor and City of Baltimore v. Dawson, supra; 
Holmes v. City of Atlanta, supra. In Flemming v. South 
Carolina Gas S  Electric Co., 224 F2d 852 (4th Cir. 1955), 
the Court of Appeals held, as did the court below, that the 
separate but equal doctrine was no longer a correct state­
ment of the law and struck down the South Carolina stat­
utes requiring the segregation of the races on public trans­
portation vehicles as violative of the Fourteenth Amend­
ment.

Racial discrimination with respect to the use of common 
carrier facilities operating in interstate commerce was 
found to be a violation of Section 3(1) of the Interstate



Commerce Act (Title 49, United States Code). Henderson 
v. United States, 339 U. S. 816. More x’ecently the Inter­
state Commerce Commission has held racial segregation 
per se to he contrary to the requirements of Sections 3(1) 
and 3.16 (d) of the Interstate Commerce Act in respect to 
all common carrier facilities subject to regulation by the 
Commission. See National Association for the Advance­
ment of Colored People, et al. v. St. Louis-San Francisco 
Railway Company, et al., — I. C. C. — decided November
7, 1955; Sarah Keyes v. Carolina Coach Co., —-1. C. C ._,
decided November 7, 1955.

While this Court dismissed the appeal in the Flemming 
case, the import of that ruling is somewhat in doubt. Com­
pare Moore, “ Commentary on the U. S. Judicial Code,” 
p. 554 and note 114 at pp. 552 and 554 with Robertson and 
Kirkham, “ Jurisdiction of the Supreme Court of the United 
States, § 125. Whatever the correct interpretation of that 
holding may be, it is submitted that this Court in other deci­
sions has impliedly overruled Plessy v. Ferguson and that 
there now remains no rationale in the decisions of this Court 
upon which a state policy which enforces segregation in 
public transportation can be sustained.

Conclusion

W herefore, it is respectfully  subm itted th a t the deci­
sion of the court below should be affirmed.

R obert L. Carter, 
T hurgood Marshall, 
F red D. Gray,
Charles D. L angford, 

Attorneys for Appellees.

Dated September 20, 1956.



S upreme P rinting Co., Inc., 114 W orth Street, N. Y. 13, BEekman 3 - 2320