Bailey v. Patterson Mimeographed Record Vol. IV

    UNITED STATES

COURT of APPEALS
F I F T H  C I R C U I T

No.

SAMUEL BAILEY, ET AL,

APPELLANTS

VERSUS

JOE T. PATTERSON, ET AL,

APPELLEES

Volume IV

Appeal from the United States District Court 
for the Southern District of Mississippi, 

Jackson Division

MIMEOGRAPHED RECORD



I N D E X

SAMUEL BAILEY, ET AL 
VERSUS
JOE T. PATTERSON, ET AL
Volume IV Page No.
Transcript of Testimony Continues

Testimony of EVERETT RENEGAR, Recalled 
" " PHILIP A. DOBBINS, Recalled

Plaintiffs* Exhibit 36: Judge Johnson's Order 
on the Ku Klux Klan 

Opinion of Three-Judge Court 
Dissenting Opinion of Judge Rives 
Order
Notice of Appeal 
Appeal Bond
Opinion of The Supreme Court of The United States 
Order In Accord With Opinion of The Supreme Court 

of The United States
Motion For Immediate Relief in Accordance With

Opinion and Judgment of The Supreme Court of the 
United States 

Affidavit of A. B. SMITH 
Affidavit of EVERETT RENEGAR 
Affidavit of SAM C. WATTS 
Findings of Fact, Conclusions of Law, and 

Declaratory Judgment
Copy of Letter from U.S.District Judge S. C. Mize

590
590
608
627
629
667
705
706 
712 
714 
718

719

727
729
731
732

741



(R-1351)
590

TRANSCRIPT OF TESTIMONY CONTINUED 
VOLUME IV

After Recess

EVERETT RENSGAR, RECALLED AS A WITNESS for further examina­
tion and having previously been duly sworn, testified as 
follows:

EXAMINATION
BY MR. O ’MARA:
Q. Your name is Everett Rsnegar?
A. That’s right.
Q. I believe you testified several days ago as a witness for 

the plaintiffs in this case?
A. I did, yes, sir.
(R-1352)Q. I will ask you first if you made an investigation with 

regards to an occurrence that took place at the Grey­
hound Bus Station here in Jackson on or about September 

1961, involving a party by the name of Helen O'Neal? 
A. Yes, I did.
Q,. Who was the driver cf the bus involved?
A. Operator A. W. Wilson.
Q. Where is he stationed?
A, His home terminal is in Memphis, Tennessee.
Q. Have you made any effort to contact or locate this driver 

during the past few days?
A. Yes, sir, continually since Monday evening.



591
(R-1352)
Q. What have you done, Mr, Renegar?
A, I have called his superintendent in Memphis, and he has 

been trying to locate him.
Q. Did you make your first call Monday?
A, Made it Monday night.
Q. Have you made any calls since then?
A. Made three Tuesday and two this morning.
Q. Whom did you talk to when you made those calls?
A. I talked to Mr. Roy Tucker, superintendent of the drivers 

in Memphis, Tennessee,
Q. Those, of course, were long distance telephone calls?
A, Yes, sir,
Q. Have you had people trying to locate this driver?
A. Yes, sir. He has been trying to locate him since I called 

him Monday night.
(R-1353)
Q. Did this driver go off from work this past Monday evening? 
A, Yes, sir, he went off duty.
Q. When does he return to duty?
A, He is due back on a run tonight at Is 15 to Birmingham, 

Alabama.
Q. And you haven't located him yet?
A. Haven't as yet located him, no, sir.

BY MR. O'MARA; If it please the Court, in order to be 
fair with the Courtand counsel, the reason I have asked
those questions of this witness is this; The Court will



592
(R-1353)

recall that the name of Helen O'Neal was not furnished 
to us, to the Greyhound Corporation, by the plaintiffs 
when the plaintiffs answered the interrogatories pro­
pounded to them by Greyhound, We objected to the tes­
timony of Helen O'Neal when she was offered as a witness. 
As I understand it, the Court allowed the plaintiffs to 
question the witness but reserved a ruling on the objec­
tion we made on behalf of Greyhound Corporation to that 
witness' testimony. We have now shown that we have done 
everything that we could in an effort to locate and have 
this driver present to testify in this case. I am 
certain that Your Honors realize that thus far we have 
had every driver present to testify about any of the 
instances about which the plaintiffs or their witnesses 
have complained. We of course are in a situation where 
we can't get this driver because we cannot locate him. 
First, as this witness Benegar has testified, he made 

(R-1354)an investigation, and we now request the Court to let 
us interrogate Ms?. Renegar from the standpoint of the 
investigation of this occurrence that he made. I am 
frank to say to Your Honors that Mr. Renegar was not 
present when the occurrence took place. That is to 
say, he has no personal knowledge of what took place.
He can only testify as to what he found out, making his 
Investigation.
BY JUDGE RIVES: Do you have the written report he



593
(R-1354)

made to him?
BY MR. O ’MARA: He made a written report, but that re­
port was sent to Memphis and is probably in the office 
in Georgia now.
BY <J0DGE RIVES: He would be testifying as to his recol­
lection for the record?
BY MR. O ’MARA: Yes, sir.
BY JUDGE RIVES: Is there any objection to his testimony? 
BY MRS. MOTLEY: We have only this objection: that It 
appears that this witness testified Monday morning; at 
least they were advised by us as this case began at 
9:30 A.M. Monday that we had this additional witness, 
and I understood him to say just now that the driver 
didn’t go off until Monday night. I ’d like to point 
out also in the interrogatories we pointed out that we 
had searched the police records and had discovered a 
number of people arrested in the Greyhound terminal, 
and suggested to them they might do the same thing, and 

(R-1355)
I think that an incident like this and all these 
recent arrests are knowledge within the company.
The know all the people who have been arrested in 
their terminals or involved in these recent incidents. 
This was one incident involving an arrest that I feel 
sure they must have known about and would have that 
information already at hand. We clearly indicated in 
the interrogatories, and I think it was well known,



594
(R-I355)

we Intended to use testimony of that kind in this case. 
BST JUDGE RIVES: And you do object to the testimony as 
hearsay?
BY MRS. MOTLEY: Yes, we do.
BY JUDGE RIVES: The Court probably will not decide 
this case within the nert ten days, and we will permit 
you to take the deposition of the witness within ten 
days and file it with the Court. We prefer not to have 
the hearsay testimony.
BY MR. O'MARA: We will be given the right to take the 
deposition of this driver within 10 days after adjourn­
ment?
BY JUDGE RIVES: Yes, and of course, you would have 
to give notice to the other side.
BY MR. O'MARA: But we will be given the right to take 
the deposition.
BY JUDGE RIVES: That is what I said.

(R-1356)
Q. (Mr. O'Mara continues:) Mr. Renegar, the witness Johnny 

Frazier has testified that he boarded a bus on August 
26, i960, in Atlanta, Georgia —  that he boarded a 
Greyhound bus in Atlanta, Georgia on that date —  and 
that he traveled in that bus from Atlanta, Georgia to 
Montgomery, Alabama, and then traveled in that same 
Greyhound bus from Montgomery, Alabama, to Columbus, 
Mississippi. I will ask you if it was possible for 
Frazier to have done that?



595
(R-1356)
A. No, he could not have done that.
Q. Why?
A, Because we do not have service between Montgomery and 

Columbus, Mississippi.
Q. Do you have any buses at all running Into Columbus, 

Mississippi?
A. We have only one Greyhound bus operating in Columbus, 

Mississippi, and that Is a weekend operation.
Q. Where does that bus originate?
A. That originates at Tupelo —  . I beg your pardon. 

Memphis.

BY JUDGE RIVES: What date did you put Frazier as —  

BY MR. O'MARA: August 26th, i960.
BY JUDGE RIVES: This ticket you introduced, wasn't 
that August l6th?
BI WITNESS: The ticket was issued on August 16th.
BY MR. O'MARA: The ticket was issued on August l6th.
BY JUDGE RIVES: Oh, It was a round trip and he was

(R-1357)coming back,
BY MR. 0 ‘MARA: That is right.

Q. You say you have only one route that runs into Columbus, 
Mississippi?

A. That is right.
Q. And that is from Memphis, Tennessee?
A. To Columbus, yes.



596

(R-1357)
q . How many times a week does that bus run from Memphis to 

Columbus?
A. That is one day a week, a Saturday operation.
Q. Just one day a week?
A. Yes, sir.
Q, If a passenger got on a Greyhound bus or attempted to get 

on a Greyhound bus with that ticket, would you honor tha 
ticket and allow him to ride a Greyhound bus?

A. No, sir, Greyhound would not honor this ticket.
Q,. Whose ticket is that?
A. This is on Continental Trailways.
Q. Mr. Renegar, has the Greyhound Corporation or its repre­

sentatives given the drivers of buses any oral instruc­
tions or orders with regard to the seating of passengers 
on the buses?

A. Yes, we have.
Q. What are those orders or instructions?
A. Those orders are to not interfere with the seating of any 

passengers, that they may take any seat available on 
the bus.

£R-1358)Does that apply to a passenger, regardless of his color?
A. It does, sir.
Q,. How long has that rule or regulation been in effect?
A. I don’t know the exact date. I would estimate to be pro­

bably six or seven years.
Q. Are you around the Greyhound bus terminal here in Jackson



597
(R-1358)

very much?
A. Yes, sir.
Q. Do you ever see any Negroes riding buses of the Greyhound 

company coming Into or leaving that station where they 
are sitting up at or near the front of the bus?

A, Yes, very often.
Q. Have you ever done anything about it?
A, No, sir.
Q, Have you ever attempted to do anything about it?
A. No, sir.
Q. Has the driver that was operating?
A. Not to my knowledge.
Q. Have you ever seen any Negroes enter the waiting room at 

the bus station here which opens out onto North Lamar 
Street?

A, I have.
Q. Has anything happened to those Negroes?
A. No, there hasn't.
Q. Have you ever sold any tickets to any Negroes in that 

wait ingroom?
A. We have.
(R-1359)
Q. Did anything happen to them?
A. Did not.
Q. In testifying on your direct examination, you described a 

sign that was on the sidewalk in front of the Greyhound 
terminal here. I have forgotten the exact wording,



598
(R-1359)

but it is on the sign the words "By Order of Police 
Department." Is that sufficient, the way I identified 
the sign I am talking about?

A. Yes, sir.
Q. I believe you testified that sign is out on the sidewalk? 
A. That’s right.
Q. Did you put it there or did any representative of Grey­

hound put it there?
A. No, sir, we didn’t.
Q, Who put it there if you know?
A. I do not know who put it there.
Q. Have you maintained or kept that sign out there?
A. No, sir, I have not.
Q. Is it out on the public sidewalk?
A. It is on the public sidewalk.
Q. There are signs over the waitingroom door or doors at the 

terminal building here in Jackson, which you have 
already testified to on your direct examination in this 
case, and I believe you said those signs read to this 
effect: "WHITE WAITING ROOM, INTRASTATE PASSENGERS," 
or "COLORED WAITING ROOM, INTRASTATE PASSENGERS," and 
that there were similar signs at other terminals of 
the Greyhound Corporation here in this state. Do you 

(R-1360)
know about when those signs were placed over the doors?

A. No, sir, I really don’t know the date. I would say around 
’56 or *7. I’m not positive about that date at all.



599
(R-1360)
Q. Why were they placed there?
A. They were placed there because of the Mississippi State 

Statute requiring them to be there.
Q. Is that the statute we have been referring to that was 

passed in 1956 by the Mississippi legislature?
A. Yes, sir.
Q. Is that the only reason they were so placed?
A, That is the only reason, yes.
Q, Have you as a representative of the Greyhound Corporation 

or any other representative of the Corporation that 
you know of made any effort, or has the corporation 
itself made any effort, to see that passengers obey 
those signs?

A. We have not.
Q. Suppose that the Court should declare that the statutes 

to which you refer are unconstitutional. What would 
you then do with regard tc those signs?

A. They would be removed.
Q. Have you or any other representative of the Greyhound

Corporation, or has the Greyhound Corporation ever had a 
Negro passenger arrested because that passenger went 
into a certain area or a certain waiting room in the 
bus terminal?

A. No, sir, we have not.
(R-I36I)
Q. Have you caused such a passenger to be arrested for that

reason?



600

(1361)
A. No., sir, we have not.
Q. Have you ever caused a white passenger to be arrested 

because of his or her going into a particular portion 
of the terminal building of a certain waiting room in 
one terminal?

A. No, sir,
Q. Have you ever made any charge of any kind against a pas­

senger on chat ground,, regardless of whether the 
passenger was white or colored?

A. We have not.
Q. You were asked earlier when counsel for plaintiffs put 

you on the witness stand if some passengers had not 
been arrested while in the terminal building here in 
Jackson by officers of the local police department.
Did you or any representative of the Greyhound Corpor­
ation participate or take any part in those arrests?

A. No, we did not.
Q. Did you make any charges or file any charges against any 

of those passengers?
A. No, sir.
Q,. Did you attend any trial of those passengers, if any 

trial was had, as a witness?
A. Did not.
Q. Or spectate?
A. No.
Q. Do you know what happened, of your own knowledge?



601
(R-1362)
A. No, sir, I do not,
Q. —  to those persons who were allegedly so charged?
A. No, sir, I do not.
Q. Have you In any way participated in the prosecution of 

those individuals?
A. No, sir.
Q. On the inside of the stations where you have lunch coun­

ters, do you have signs of any kind around those lunch 
counters or on them?

A. No, sir, there is not.
Q. Where there are water fountains in the stations, do you 

have signs of any kind around them?
A. No signs at all,
Q. Do you have signs of any kind that you know about in

these stations? I*m not talking about the signs over the 
doors.

A. None other than the restroom signs, signs which distin­
guish men and woman.

Q. What do you have on the doors to the restrooms?
A. That is "Men" and "Women."
Q. Do you know that this state statute that we have been 

talking about requires a rather severe penalty against 
the bus company If the signs are not placed over the 
doors?

A. That is my understanding, yes.

BY MR. O'MARA: That is all.



602

(R-1363)
EXAMINATION

BY MRS. MOTLEY:
Q. Did anyone direct you to put these signs up? —  which 

you just referred to, over the doors?
A. Yes, I was directed by ray regional manager in Memphis, 

Tennessee.
Q. Did any state official direct you to put these up?
A. No state official,, no.
Q. Did anybody tell you that if you dicin'*; put them up you 

would be fined?
A. I was informed by ray regional manager I would be.
Q* Your regional manager told you you would be?
A. Yes.
Q. "Where is he located?
A. He is located in Memphis, Tennessee. He has charge of 

this particular district.

BY MR. CLARK: On behalf of the Attorney General, we ob­
ject to hearsay as to what the manager told Mr. Renegar. 
BY JUDGE RIVES: Reserve the ruling.

Q. Who did your manager tell you would impose the fine on 
you if you didn't put the signs up there?

A. I don’t remember whether he told me he would impose the 
fine or not. He only gave me the instructions to put 
the signs up, and I put them up, as he is my immediate 
supervisor.



605

(R-1564)
Q. You said that you made no effort to enforce the require­

ment of these signs?
A. I have not.
Q. Why would you take them down if the Court should say it 

was unconstitutional?
A. We are abiding by the law.
Q. You said that you had put up these signs there pursuant 

to the state law at the direction of your manager. Did 
your manager tell you anything about the city ordinance 
which required you to put them up there?

A. No, didn't have anything to do with the city ordinance 
at all_

Q, He never heard about it?
A. I don't suppose he did.
Q,. And you never heard of it?
A. I don't even know the city ordinances.
Q. You abide by the city ordinances?
A* I suppose I do.
Q» You don't know anything about this one?
A. I don't know anything about it. I carry out the instruc­

tions of the regional manager.
Q. When you saw the police arresting these Negroes in the

waiting room of the Greyhound terminal, did you make any 
protest to the police against arresting these people?

BY MR. O ’MARA: We object to that for the reason counsel 
interrogated this witness on those pointes when she



604-
(R-1364)

put him on a few days ago,
BY JUDGE RIVES: I think that has already been gone into.

(R-1365)BY MRS. MOTLEY: All right, Your Honor. I withdraw that. 
BY JUDGE RIVES: Sustain the objection.

Q. I believe you testified you have seen Negroes in the 
white waiting room of this terminal who were not ar­
rested? Is that right?

A. Are you referring as they are indicated by the signs?
Q. Yes.
A. Yes, I have.
Q, When was that?
A. I don’t know the exact date. It is very often that they 

come in and we will wait on them at the ticket window.
Q. Do they sit down in there?
A. I don’t think I have seen anyone take a seat in the 

waiting room.
Q. Did you ever see one use the restroom in the white wait­

ing room?
A. Over a period of years I have seen It.
Q. When was that?
A. I couldn’t say. That Is over a period of years. I 

couldn’t give you the exact date.
Q, Did you ever see one eat at the lunch counter in that 

white waiting room?
A. I don’t believe I have.
Q. So all ohey have done is to come in and buy tickets?



605
(H-1365)

Isn't that right?
A. Yes.
Q. Wasn't that when the colored ticket office was closed?
(R-1566)
A. Both waiting rooms are open at all times, 24 hours a day.
Q. Were the ticket people In there?
A. Wot 24 hours. The ticket office Is not open 24 hours.

The waiting room Is open 24 hours.
Q. Is there a period of time when the colored office is 

closed and the white open?
A. The ticket office is open to botn waiting rooms at all 

times the waiting room is open; that is, it is not a 
waiting room closed down separate from the other.

Q. Let me show you this defendant' 3 exhibit No. 2, which is 
a ticket that you had in your hard a moment ago, and 
ask you to explain what this "Dixie Greyhound Lines" 
means on the back?

A. This, as I said before, is a Continental Trailways ticket 
that was originally sold in a terminal at Greenville, 
Mississippi, and is a round trip ticket from Greenville 
to Augusta, Georgia. That terminal in Greenville is 
a Union terminal; both Continental and Greyhound use 
thi3 terminal, as well as 2 or 3 other bus companies. 
This is one cf our dies that is used by the ticket 
agent that sells the ticket.

Q. This is one cf your whet?
A. What we call a die. That is a stamp.



606
(R-1566)
Q. Yes?
A. And this terminal is controlled by Greyhound. This is 

the Greyhound agents stamp, and this agent sold this 
ticket.

Q. So that a customer using that ticket might think he was on
(R-1367)

a Greyhound bus if he just looked at the back of that, 
wouldn't he?

A. I don't see any reason why he should.
Q. Does it say "Greyhound" on there?
A. It says "Greyhound" on the bock, but the transportation 

Is Continental.
Q. But the customer might think he had ridden a Greyhound 

bus a few weeks later if he looked at that?
A. I don't know what the customer would think. Wouldn't 

take long to get straightened out if he tried to board 
a Greyhound bus.

BY MRS, MOTLEY: 1 believe those are all the questions.
BY JUDGE RIVES: Any further questions?

FURTHER EXAMINATION
BY MR. O'MARA:
Q. When I asked you a question a few minutes ago about what 

you would do if the court declares the state statutes 
unconstitutional, that is, whet you would do with regard 
to the signs, your answer was you would remove the 
signs?



607
(R-1367)
A. That Is right.
Q. I meant to include but did not, in the question, any city 

ordinances. Is your answer the same with regard to 
any city ordinances?

A. It would be, yes.
(R-1368)
q . Counsel has asked If a person using thatticket» which 

has been introduced as an exhibit, might not think he 
was on a Greyhound bu3. Is there any similarity in 
color and so on between a Continental Southern bus 
and a Greyhound bus?

A. Yes, the Greyhound colors are blue and white. You will 
find some blue and white on all Greyhound buses. On the 
Continental it is more or less red.

Q. They are not the same color or appearance at all, are 
they?

A. No, they are not. In fact, they are different type 
buses, a good many.

Q. And on the face of that ticket, if you will take it, what 
bus company5s name is printed in big red letters on 
the very face of that ticket?

A. Right in the center is "Continental Trailways" and at
the bottom is "Continental Southern Lines, Inc., Alexan­
dria, Louisiana."

BY MR. 0*MARA: I believe that is all.

(Witness excused)



608

(R-1368)
PHILIP A, DOBBINS, RECALLED AS A WITNESS and having pre­
viously been duly sworn, testified as follows;

EXAMINATION
m  MR. O'MARA;
£>. Your name?
A, Philip A. Dobbins.
(R-1369)Q. You are the same Mr. Dobbins who testified as a witness 

for the plaintiffs in the case a few days ago?
A. Yes, sir.
Q, There has been testimony in this case by a witness named 

Mildred Cosey with regard to her not being allowed to 
sit on a bus coming from Memphis, Tennessee, to Jackson 
Mississippi on July 1, 1959# and that she had a re­
served seat and a ticket for a reserved seat for which 
she and two companions paid, and that the hostess on 
that bus did not allow these three passengers to occupy 
the three seats for which they had reserved tickets.
Did you make an investigation of that occurrence?

A. I did.
Q. Did the hostess on that bus on that occasion have the

right insofar as the rules of the company are concerned 
to assign passengers to seats?

A. No, sir.
Q, Was a passenger supposed, to occupy the seat for which his 

ticket called?
A  She was.



609
(R-1369)
Q. Is that hostess working for Continental Southern Lines 

at this time?
A. No, sir,
Q. Did she voluntarily leave her employment or did she leave 

involuntarily?
A, She left involuntarily,
Q* In other words, she was fired?
A, She wa3 discharged, yes,
(R-1370)
Q. State to the Court whether or not that was one of the

reasons that entered into the company’s discharging her?
A, That was one of the reasons, along with other occasions 

where she failed to carry out company instructions and 
company policy and she was discharged,

Q. It has been testified by this same witness, Cosey, that 
after this occurrence she employed Attorney Jess Brown, 
who made a claim against Continental Southern for dama­
ges on this occasion. Did you handle that?

A. I worked with the attorney that did handle it,
Q. The witness Cosey says that she was paid a sum of money 

in settlement of that case, but did not give the amount 
she was paid. Tell the Court the amount she was paid.

A. Two of the passengers were paid $37.50 each.
Q* And that was the end of the claim?
A, So far as we know, yes.
Q* I hand you an instrument that has been introduced as an 

exhibit, Defendant’s 2, and ask ycu if you can tell me



610
(R-1370)

what it is.
A. Yes, that is the last coupon of a round trip ticket 

issued by Continental Trailways, with its origin at 
Greenville, Mississippi! destination, Augusta, Georgia.

Q, You say that is the return trip portion of a ticket?
A. Yes, sir, the return portion reading "Atlanta to Green­

ville* "
Q. What company issued that?
A. Continental Trailways.
(R-1371)
Q. There are a good many Continental Trailways companies, 

aren’t there?
A. Yes, sir, this is Continental Southern Lines, Incorporated.
Q. Johnny Frazier has testified that he rode a Greyhound bus 

on August 26, I960, from Atlanta, Georgia, to Mongomery, 
Alabama, and from Montgomery, Alabama, on the same 
bus to Columbus, Mississippi. I will ask you if it 
was possible for him to have ridden a Greyhound bus 
over that route on that date.

A. It was not.
Q. Why wasn’t it?
A, 'There is no such service available between Atlanta and 

Columbus, Mississippi, by Greyhound by way of Montgo­
mery, Alabama.

Q. If you used the ticket which you hold in your hand, De­
fendant’s No. 2, what buses would he have used in making 
that return trip from Atlanta, to Columbus, Mississippi?



611

(R-1371)
A. He would have used Continental Crescent Lines from At­

lanta, to Birmingham; and Continental Southern Lines 
from Birmingham to Columbus, Mississippi.

Q. What about to Montgomery, Alabama?
A. This ticket would not have been honored by way of Mont­

gomery, Alabama.
Q. In other words, he wouldn’t have traveled through Mont­

gomery, Alabama, on this trip with that ticket?
A. No, sir, he could not have.
Q. He would have had to come through Birmingham instead of 

Montgomery?
(R-1372)
A. Yes, the only through service from Atlanta through to 

Columbus is through Birmingham.
Q» What ticket would he use from Birmingham to — ?
A, Continental Crescent Lines.
Q. That company is not a defendant in this case?
A. That is correct.
Q. What bus company would he have used in coming from Bir­

mingham, Alabama, to Columbus, Mississippi?
A. Continental Southern Lines.
Q. You notice these little marks on this ticket that are 

clipped out marks?
A. Yes, sir.
Q. What are those?
A. Those are the driver’s punch mark, and that identifies 

the driver that handled this particular ticket.



612
(R-1372)
Q. Do all of your drivers have one or the same punch?
A. No, sir. Each driver has an individual punch marker.
Q. You were questioned by counsel for plaintiffs when she

had you on the stand as her witness a few days ago about 
certain signs that are on the doors of Trailwey stations 
here in Jackson and some other stations of Continental 
Southern here in the state, which read to this effect,; 
"WHITE WAITING ROOM, INTRASTATE PASSENGERS," or 
"COLORED WAITING ROOM, INTRASTATE PASSENGERS." Do you 
know about when those signs were put up?

A. In 1956.
Q. Do you know why they were put on the doors of the sta­

tions9

A. In compliance with state statute that was passed in that 
year,

■ou know that those statutes carry a rather severe 
penalty for a bU3 company not to comply with them?

A. Yes.
Q. I want to ask you if Continental Southern, during the time 

that these signs have been over those doors, have made 
any effort to enforce obedience to the signs?

A, None whatsoever.
Q. Suppose that the Courc should declare the applicable 

state statutes or any applicable city ordinances un­
constitutional, what would Continental Southern do inso­
far as the signs are concerned?



613
(R-1373)
A. The signs would be removed,
Q. You also testified when you were on the stand a few days 

ago about some signs that had been placed out on the 
sidewalk there in front of the station that had words 
to this effect, and some other words, on them, "By 
Order of Police Department." Do I sufficiently identify 
the signs I am talking about?

A. Yes.
Q. Did Continental Southern Lines place those signs there?
A. No, sir.
Q, Has Continental Southern Lines maintained those signs?
A. No, sir.
Q, Have you had anything to do with the placing or main­

taining of the signs?
A. No, sir.
Q. I will ask you to state whether or not the bus company

has any oral orders or instructions that have been given 
(R-137^-)to the drivers of the company*s buses with regard to 

seating of passengers on the buses?
A. We do have.
Q. What is it?
A. Our instruction to our drivers is that the passenger be 

allowed to sit where they desire on coaches.
Q. In the first part of 1958, did you have e different rule 

or order?
A. Yes, we did have.



6l4
(R-1574)
Q,. What was that rule at that time?
A. In the early part of 1958 our Instructions were to the 

effect that intrastate passengers be requested to move 
to the rear of the coach; interstate passengers be 
allowed to remain where they might be seated.

Q. What was the rule with regard to intrastate passengers at 
that time if the intrastate passengers refused to remove 
from the seat?

A. That he call his supervisor before taking any action what 
ever.

Q. And you say that rule or order has been changed?
Ac Yes, in 1958.
Q. In the latter part of 1958?
A. Yes.
Q. At the present time, what orders or instructions do the 

drivers give to the passengers occupying seats on the 
buses?

A. Give no orders whatever.
Q. If you catch a driver trying tc seat a passenger on a bus 

would you reprimand him?
(R-1575)A. Very severely, yes.
Qc Are you around the terminal here in Jackson from time to 

time, of the Continental Southern lines?
A. I am,
Q. Have you ever seen any Negroes in the west waiting room 

of the terminal?



615
(R-I375)
A. Yes, sir.
Q. And have you seen any Negroes in that waiting room 

where nothing at all happened to them?
A. Yes.
Q, Have you ever seen any buses come into or leave the ter­

minal?
A. Yes,
Q. Do you see them rather frequently?
A. Yes, very frequently.
Q. Have you ever seen any Negroes riding on the front of the 

buses, that is the seats in the front of the buses?
A. I have.
Q. Has anything happened to them?
A. No, sir.
Q. No arrests made or anything?
A. No, sir.
Q. Counsel for plaintiffs asked you the other day about 

certain arrests of passengers in the terminal buildup; 
of Continental Southern. Did any representative of Con­
tinental Southern Lines make any charge against those 
passengers?

A. No, sir.
(E-1376)
Q. Did Continental Southern or any of its representatives 

have anything to do with those arrests?
A. No, sir.
Q, Did they have anything to do with the making of any



6l6
(R-1376)

criminal charges against those passengers?
A. No, sir.
Q. Did they have anything to do with the trial of those

passengers, if any trials were had on any such charges? 
A. No, sir, they did not.
Q. Did you appear as a witness in any of those cases?
A. No, sir.
Q, Or as a spectator?
A. No, sir.
Q. Do you have any personal knowledge as to the outcome?
A„ No, sir.
Q. Not speaking of signs on the sidewalk, "By Order of the 

Police Department," over the entrance doers of the 
waiting rooms, do you have any signs in there around 
the water fountains?

A. No, sir.
Q. Do you have any signs in there around the lunch counters? 
A. No, sir.
Q. Do you have ary signs in the building around or on the 

restroom doors?
A. Yes, sir.
Q,. What are those?
A. We have restrooms marked "Men" or "Women."
Q. That is the only sign on those?
(R-1377)A, Yes, sir.
Q. Do you have any other signs inside the terminal?



617
(R-1377)
A. No.

EXAMINATION 
BY MRS, MOTLEY:

Q. When was It you saw Negroes in the white waiting room — ?
A. The first time was — . May I ask you if you were re­

ferring—
Q,, —  who were not arrested,
A. I would say five or six weeks ago I saw a young Negro

'man come in the west waiting room and present his ticket 
at the window for inspection, as all passengers on the 
bus are told to do, and his ticket was examined and he 
was told where his bus was loading. He walked on out 
and boarded his bus.

Q,. Did he take a seat in the white waiting room?
A. He did not, did not attempt to.
Q. Did he go in the menfs waiting room?
A. He did not.
Q. Did he eat at the counter?
A. He did not.
Q. Have you seen any other Negroes in there who were not 

arrested?
A. No. I have from time to time, one would walk through or 

just pass through the station is all. That has been 
some time back.

Q. You have never seen one sitting there that wasn't airest­
ed, have you?

A. I don't believe.



618
(R-1378)

El MR. O'MARA: That is all we have, with the exception 
of the deposition.

(Witness excused)

El JUDGE RIVES: Do any other defendants have any 
witnesses? —  The defendants all rest?
Any defendant have any documentary evidence? —
Any further evidence from the plaintiffs?
BY MRS. MOTLEY: He, Your Honor, except that we have 
arranged to have the clerk of the district court at 
Montgomery send the clerk of this coart a certified 
copy of Judge Johnson's Opinion and Order in United 
States against Ku Klux Elan, which we referred to this 
morning, and 1 assume it is all right for that to come 
in and the defendants make any objections tothe ad­
mission of that in evidence they might desire, but we 
would like the understanding that would be admitted 
in evidence as one of our exhibits.
BY MR. CLARK: We have an objection to that. Is it 
necessary for us to renew at this time?
BY JUDGE RIVES: We will take the ruling with the case. 
As I -understand it, you already have an objection, and 
we will take the ruling with the case.
BY MR. J. WILL YOUNG: I have a statement to make for 
the purpose of the record, and I make it in view of 
the Court' 3 announcement that it would probably be 
ten days before there is a decision rendered in this



619
(R-1378)

case. There Is a situation here that I think the
(R-1379)Court should be apprised of, to this extent:

This suit is against the Attorney General and the 
chief law enforcement officers, the city law enforce­
ment department, and the transportation companies.
There are four of us for the transportation companies. 
The other three companies operate under the Interstate 
Commerce Commission, and their rates are so fixed.
My company operates under a franchise with the City of 
Jackson. We are purely a local company operating only 
in the City of Jackson. The same identical statute 
that required the railroad and the bus companies to 
put up a sign, in another part of the same section re­
quires us to do that exactly which we are doing.
The city ordinance is an exact copy of the state law, 
which required us to do that which we are doing. I 
want to make this statement now because I think that 
the responsibility for what may happen should be shifted 
to some extent from my shoulders. The Illinois Central 
Railroad and both the bus lines have, according to 
the testimony here and I have every reason to be­
lieve every word cf it —  ceased to make any effort 
to enforce any of these statutes except to have the 
signs there which they have no control of. I have 
the signs in buses, and those drivers are instructed 
just as this driver told you, because I am the man that



620

(R-1379)
wrote the instructions to park the buses in the event 
someone fails to operate on the basis of those signs. 
When we leave here this afternoon and this court 

(R-1380)
adjourns, in the present state of this situation, by 
nine o ’clock I don’t believe there will be a bus ope­
rating, because this is a serious matter. There is a 
great deal of heat in this thing, a great deal of heat 
behind the lawsuit on both sides. Okie heat is not 
generated by my company or the transportation companies; 
it is a matter, as you said, Judge Rives, in the 
Tamiami case, of local custom, tradition, and use, and 
something that you nor I can’t control. If this court 
this afternoon would enjoin me from putting the signs 
up in the buses and from stopping the buses, you may 
prevent a complete breakdown of the transit system.
If you would tell me this afternoon that in your opinion 
those statutes are unconstitutional, I would take the 
signs out of my buses and tell my buses to operate like 
the railroads and the other two bus companies. I am 
standing here between the horns of dilemma with no 
knowledge of which way to go. If it takes this court 
ten days to reach a decision, I don’t believe there will 
be any buses operating in Jackson tomorrow morning.
BY MR. WATKINS: I certainly would like to be heard 
before you act on any such suggestion as made to the 
Court. On behalf of the City of Jackson, I strenously



621
(R-1J80)

object to any injunction issuing in this case and would 
ask for a reasonable opportunity to submit briefs, if 
the Court wants briefs, on it.
BY MR. J. WILL YOUNG: I don't want to be enjoined,
I don't think I should be enjoined. But I have brought

s matter to this Court for attention because it is 
a situation that is explosive and I can't control it.
I don't think any injunction should issue against me, 
but I need some relief because if I go pull the signs 
out of the buses, I am pulling them out in the face of 
the statute and an ordinance created by my own rate­
making body, and I am in trouble either way I go.
BY MR, SHANDS: We too oppose any issuance of any in­
junction in this case and would like very much to brief 
this matter fully.
BY MR. O'MAFIA: On behalf of Greyhound Corporation and 
Continental Southern, we desire to file a written brief 
before any order is issued.
BY JUDGE RIVES: The Court is not going to make any 
ruling until it makes an official ruling. I think, 
so far as the views of the presiding judge of the Court 
are concerned, you may ascertain them from City of 
Montgomery againstBrowder. and the Supreme Court's 
affirmance of that decision. I think you would have to 
make up your own mind as a lawyer what the law is on 
that.



622
(R-138 1)

BY JUDGE MIZE: I might say that I too am not ready 
to render any decision or Injunction, but if you want 
to take down the signs, the testimony thus far shows 
pretty well in this case that state authorities nor 
anybody has prosecuted anyone under itj so, if you 

(R-1382)
want to take them down it is for you to decide your­
self, Apparently, under the testimony in this case, 
there haven't been any prosecutions, at the present 
time, anyway.
BY MR. YOUNG: This situation makes me feel peculiar.
I seem to be standing here alone, but I am the only one 
standing here operating under anything other than the 
Interstate Commerce Commission, and it has always been 
my policy and the company's policy to cooperate wher­
ever possible, and we are now in an impossible situation. 
From what you have said, Judge Mize, --  I am fami­
liar with the Montgomery case and I know Judge Rives 
participated in it —  I feel there is now, at least, 
two members of your three-judge court who feel the 
sign statute is unconstitutional, so it gives me that 
much, and If I don't change my mind in the next hour,
I will make a move to take the signs out of the buses.
BY MR. WATKINS: I object to counsel's construction on 
what Judge Mize said. He said, as I understood him, 
that according to the evidence there was no evidence of 
prosecutions under these statutes, and, therefore, it



625
(R-1J82)

looked like it would be safe to take the signs down.
That statement and the statement to the effect that the 
statutes or any of them are unconstitutional are two 
different things.
BY JUDGE MIZE: Yes* I am not going to pass on it with 
that speed. I want to study these questions. It Is a

(R-1383)very important question, and as far as I am concerned,
I want a full argument, within reasonable bounds. I 
am sure the court will announce when it wants the 
argument, but I want to hear argument and want some time 
in which to study the argument.
BY MR. CLARK: May the record show, on behalf of the 
Attorney General, we do net agree with the remarks of 
Mr. Young in regard to the situation that would result 
in the City of Jackson, or elsewhere in the State of 
Mississippi. I want to make that, because we specifi­
cally objected to the case being taken beyond the city 
limits of Jackson, to which the parties are confined.
BY JUDGE RIVES: I am afraid you have gotten about as 
much out of the Court as you can.
BY MR. J. WILL YOUNG: I am afraid I have, Sir.

(Whereupon the court was recessed until the following 
morning.)



624
(H-1583)
(THURSDAY, September 28, 1961, at 9 0 0  A.M. :)

BY JUDGE RIVES: I want to remove a possible misappre­
hension of the Court's statement It gave yesterday.

This case was continued from August 7th, when it 
heard motions for a hearing at this time upon both the 
preliminary injunction and tbs application for a perma- 
ment injunction. It was not my intention yesterday in 
Indicating tliat we wait twenty days for briefs to 
indicate that we wculd wait that long before ruling upon

(R-1384}
the preliminary injunction. It is my intention, 
speaking for myself —  Well, I speak for the Court —  
that we will at the conclusion of this case have a 
conference as to whether a ruling should be given at 
this time, or ruled hereafter, upon a preliminary in­
junction. Now, after that much, the Court is not 
bound to wait on the 20-day briefs before ruling upon 
the preliminary injunction. As far as myself is con­
cerned, I think you are entitled to those views before 
reaching a final decision in this case. My statement 
merely is to the preliminary injunction, and it is my 
tentative view that the plaintiffs are entitled to a 
preliminary injunction to take down the signs in the 
City Lines buses, take the signs down in the Greyhound 
terminals and in the Continental terminals, and also 
at the airport lines 1 and I think they are entitled 
to an injunction against all of the parties except the



625
(R-1384)

Attorney General, X am not of the opinion at this time 
that the plaintiffs are entitled to any injunction 
against the Attorney General. I don't think the 
Attorney General is shown to have any official connec­
tion with the enforcement of the statutes and ordinances 
in question.

X would say the plaintiffs are entitled to a pre­
liminary injunction forbidding arrests of persons who 
conduct themselves orderly and without themselves 
breaching the peace, no matter which facilities they use, 

(R-1385)
in stations or on carriers. I would not state that 
the plaintiffs are entitled to any preliminary injunc­
tion against the Greyhound lines nor the Continental 
lines in the operation of the buses in transportation 
on its lines. I am of the tentative view that violation 
of any rule as to segregation by the buses has been, 
not on the bus lines, but at the terminals. That is 
not true as to JacksonCity Lines. As to Jackson City 
Lines, they are entitled to a preliminary injunction 
preventing segregation on these lines.

Those are my tentative views, for whatever help they 
may be to you in arguing the case. I particularly 
wanted to call your attention that we are now bound to 
withhold any ruling in this case after the close of the 
argument when we have been enlightened as much as we 
can be by the argument in this case. That is all I



626

(R-1385)
have to say.
BY JUDGE MIZE: I am not prepared to express an opinion 
as to what action should be taken at this particular 
time, or within a short time, upon any of the questions 
that are involved. That is one of the reasons I desire 
to hear full argument on the law and the facts in this 
particular case this morning —  for the reason that I 
have not had the opportunity or time to study this case 
as fully and completely as I desire. I am not prepared 
at this moment to express any views as to what should be 
done or how soon it should be done, but prefer to re­
serve my opinion until the oral argument has been 

(R-1386)
completed and until I have had an opportunity to study 
the briefs that have already been filed; so I will 
withhold the expression of any opinion one way or the 
other, because I am not prepared so to do.
BY JUDGE RTVES: You may proceed with the argument.
BY MRS. MOTLEY: Before commencing we might complete 
the record. We have received Judge Johnson's Order 
on the Ku KLux Klan.
BY MR. CLARK: A copy of this Order lias been furnished 
to us now. We adhere to our previous objection to the 
Order in toto, since we understood the ruling of this 
Court to be, as far as any question of Alabama incident 
was concerned, it would not be the purpose of this Court 
to re-try Alabama lawsuits here, and we think the



627
(R-1386)

injection of this Order in an Alabama lawsuit means 
simply that. We would, however, point out to the Court, 
this order also points out that persons have been 
sponsoring and financing and encouraging groups to come 
into the area in Alabama with the knowledge that the 
publicity that would accompany those trips would foment 
violence in and around bus terminals, and the same 
judge that acted in this case also directed and enjoined 
the continuance of those publicized agitations. Wo 
would actually have no objection to that portion of the 
Order, but because we don’t want to be found in the 
position of accepting some and not the others, we 
continue our objection to the entire Order as having 
no materiality or purpose to this proceeding.

(R-1387)BY MR. WATKINS: The City of Jackson objects to the 
Order for the same reasons, and for additional reason 
that the Order of the District Court is meaningless 
without the testimony upon which the Order was based, 
and we submit on that additional ground it should not be 
accepted in evidence.
BY JUDGE RIVES: The Court will resreve ruling.

(Same was received and marked as Plaintiffs’ Exhibit No. J>6. 
This exhibit is not copied here because upon order of the 
Court all original exhibits are sent up with the mimeograph­
ed record.)

(.Arguments of counsel)



628

# * * * # # # # # # #
(R-1388)___

UNITED STATES DISTRICT COURT FOR THE SOUTHERN 
DISTRICT OF MISSISSIPPI, JACKSON DIVISION

SAMUEL BAILEY, JOSEPH BROADWATER and 
BURNETT L. JACOB, on behalf of themselves 
and others similarly situated,

Plaintiffs
Vs. Civil No. 3133

JOE T. PATTERSON, Attorney General of the 
State of Mississippi, Jackson, Mississippi, 
et al,

Defendants

COURT REPORTER»S CERTIFICATE 
I, D. B. JORDAN, Official Court Reporter for the 

United States District Court for the Southern District of 
Mississippi, hereby certify that the foregoing Five Hundred 
and Thirty pages (531) constitute a true and correct trans­
cript of the testimony and proceedings had upon the trial of 
this cause on the 25th day of September, 1961, and subsequent 
days, at Jackson, Mississippi, in the Jackson Division.

This the 20th day of October 1961.

/s/ D. B. Jordan
~ T > 7  armsm-------------------------------------------------------

# * * * # * * « • * * *



(R-727)
629

IN THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF MISSISSIPPI 

JACKSON DIVISION

SAMUEL BAILEV, JOSEPH BROADWATER and 
BURNETT L, JACOB, on behalf of themselves 
and others similarly situated,

V. Plaintiffs
; CIVIL ACTION

JOE T. PATTERSON, Attorney General of the 
State of Mississippi, Jackson, Mississippi, 

and
THE CITY OF JACKSON, MISSISSIPPI, a Munici­
pal Corporation organised and existing under 
the laws of the State of Mississippi, Serve: 
Alien C. Thompson, Mayor of the City of 
Jackson,

and
ALLEN C, THOMPSON, Mayor of the City of 
Jackson, Mississippi, '

and
DOUGLAS L, LUCKEY, Commissioner of the City 
of Jackson and THOMAS B. MARSHALL, Com­
missioner of the City of Jackson, Mississippi,] 

and
W. D. RAYFIELD, Chief of Police in the ]
City of Jackson, Mississippi, 

and
JACKSON MUNICIPAL AIRPORT AUTHORITY, a ]
public body corporate, Serve: T. A. TURNER, 
Secretary and Manager of the Jackson (
Municipal Airport Authority, c/o Jackson ,
Municipal Airport, Jackson, Mississippi, }

And )
CONTINENTAL SOUTHERN LINES, INC., Serve:
J. T. Vickers, 201 East Pascagoula Street, 
Jackson, Mississippi,

and )
SOUTHERN GREYHOUND LINES, a division of )
GREYHOUND CORP. Serve: Everett Renegar,
219 No. Lamar Street, Jackson, Mississippi,

and ,
ILLINOIS CENTRAL RAILROAD, INC., Serve:
H, T. Lewis, or any other agent, at 
Illinois Central Passenger Station,
300 ¥. Capitol Street, Jackson, Mississippi 

and

NO. 3133



6^0

(R-727)
JACKSON C M  LINES, INC. Serve: Alton B.
Smith, 800 West Monument Street, Jackson.
Mississippi,

and '
CICERO CARR, Serve: Cicero Carr at
Cicero1s Airport Restaurant, Jackson ‘
Municipal Airport, Jackson, Mississippi, ^

Defendants '
Before RIVES, Circuit Judge, and MIZE and CLAYTON, District 
Judges.

OPINION OP THREE-JUDGE COURT 
(Plied Nov. 17, 1961)

(R-728)
MIZE, District Judge:

The plaintiffs in this case are Samuel Bailey, Joseph 
Broadwater and Burnett L. Jacob, each of whom is an adult 
Negro citizen of the United States and the State of Missis­
sippi, who filed their complaint herein on June 9, 1961.
Hie defendants in the case as shown by the amended complaint 
are Joe T, Patterson, The City of Jackson, Allen C. Thompson, 
Douglas L. Luckey, W. D. Rayfield, Jackson Municipal Airport 
Authority, Continental Southern Lines, Inc., Southern Grey­
hound Lines, Illinois Central Railroad, me., Jackson City 
Lines, Inc., Cicero Carr. Each of the defendants has filed 
an answer to the amended complaint, setting cut their de­
fenses. The Issues arc clearly defined by these pleadings. 
The amended complaint was in substance a substitution of the 
original complaint.

It is the contention of the plaintiffs that Sections



631
(R-728)
2351, 2351.5, 2351.7, 77&^, 7785, 7786, 7786-01, 7787, and
7787.5 of the Code of Mississippi of 1942 are unconstitu­
tional j that the defendants are seeking to enforce these sta­
tutes; and that a preliminary injunction should be issued 
enjoining the defendants and each of them and their successors 
from enforcing any of these statutes or any other statutes 
requiring racial segregation on common carriers or in the 
facilities maintained by common carriers. Plaintiffs further 
contend that the defendant, City of Jackson and its officials 
are enforcing an ordinance of the City of Jackson adopted 
January 12, 1956, and contend that this ordinance of the 
City is unconstitutional on its face, but that notwithstand­
ing its unconstitutionality, the defendants, City of Jackson 
and its officials, have threatened to enforce this ordinance 
against the plaintiffs and members of their class. Plain-
(R-729)tiffs further contend that the defendants and each of them, 
acting under color of the laws of the state of Mississippi 
and under color of Sections 2087.5, 2087.7 and 2089.5 of 
Mississippi Code of 1942, have pursued and will continue to 
pursue a policy and custom of segregation of negro and white 
persons on common carriers in the State of Mississippi unless 
restrained, and they contend further that they have no other 
speedy or adequate remedy at law other than by injunction. 
Plaintiffs pray for the organization of a three-judge court 
as required by Title 28 USC, Section 2284, and pray for the 
issuance of a preliminary and permanent injunction enjoining



6?2

(R-729)
each of the defendants from enforcing or attempting to en­
force any of the aforementioned statutes or any other statute 
of the State of Mississippi requiring segregation! pray for 
an injunction enjoining the City of Jackson or any of its 
officers from enforcing any of the ordinances of the City of 
Jackson hereinabove referred to; to enjoin the defendants and 
each of them from continuing to enforce any policy or custom 
under color of State law or City ordinances of segregating 
negro and white passengers on common carriers or in facili­
ties maintained by any common carrier, from continuing to 
enforce any policy or custom of segregating the races in the 
facilities and services of the Jackson Municipal Airport or 
its restaurant operated by Cicero Carr, and from continuing 
to arrest, intimidate or threaten to arrest members of their 
class in connection with the exercise of their Federally pro­
tected right to use inter and intra state transportation and 
services without segregation or discrimination because of 
their race.

The defendants and each of them in their answers deny 
that they are enforcing or attempting to enforce any of the 
statutes against the plaintiffs or any of their class be­
cause of their race. Defendants contend that this is the 
type of action wherein the Federal Court should abstain from 
(R-750)
passing on these statutes until the State courts have first 
had an opportunity to pass on its own laws and city ordi­
nances.



653
(R-750)

All the defendants contend that no Injunction should 
issue against either of the defendants. More specifically, 
the defendant Joe T. Patterson contends that thi3 is not 
properly a class action,* that the amended complaint raises 
factual and legal controversy involving unsettled questions 
of state law which should properly be decided first by the 
Supreme Court of Mississippi in order to avoid unnecessarily 
deciding constitutional questions, and that there is a full 
and adequate procedure existing in the state tribunals of the 
state for the plaintiffs to assert all of their rights and 
privileges claimed by this suitj and that none of the laws of 
the State of Mississippi that are complained of in the amended 
complaint have ever been presented to the highest tribunal or 
any other court of the State of Mississippi for adjudication. 
The Attorney General further contends that in effect this 
suit against the Attorney General in his official capacity is 
an action against the State of Mississippi, which, under the 
provisions of the Eleventh Amendment to the Constitution 
could not be maintained without its consent, and further, that 
the complaint attacks the enforcement of parts of the criminal 
laws of the State of Mississippi which have been passed in 
the sovereign capacity of the State for the purpose of pro­
tecting all persons of the state against domestic violence, 
and undertakes to prevent the enforcement of the ordinances 
of the City of Jackson and to prevent the State officials of 
Mississippi from enforcing Sections 2087.5,, 2087.7 and
2089.5 of the Mississippi Code of 1942. (These statutes are



654
(R-730)
set out In Appendix I) He contends that these statutes are 
constitutional and are not being unconstitutionally enforced. 
He further contends that this action constitutes an attempt 
to control the 1aw enforcement officials of the City of Jack- 
(R-731)son, as well as the State of Mississippi in the exercise of 
their valid discretionary powers and authority.

The defendants, City of Jackson and Allen Thompson, its 
Mayor, the Commissioners and Chief of Police contend that the 
amended complaint raises primarily factual issues and that 
the primary issue raised by the amended complaint involves 
the arrest of the so-called Freedom Riders under Sections
2087.5 et seq. of the Code of 1942 and that the arrest of the 
Freedom Riders was legitimate and in accord with these sec­
tions, and that these sections were not unconstitutionally 
enforced. They contend specifically that there was no effort 
to enforce segregation laws by the arrests, but simply to 
maintain law and order and to prevent breaches of the peace. 
They further contend that this Court should abstain from 
passing on the constitutionality of these Acts until passed 
upon by the Supreme Court of Mississippi and contend, also, 
that the City of Jackson Is an agency of the State of Missis­
sippi and, therefore, not subject to suit.

The defendants, Continental Southern Lines, Inc., 
Southern Greyhound Lines, Illinois Central Railroad, Inc., 
Jackson City Lines, Inc., Jackson Municipal Airport Authority 
and Cicero Carr contend that they have not caused the arrest



635
(R-731)
of anyone and that they are not seeking to enforce the segre­
gation laws of the State of Mississippi, and contend that 
no injunction should issue against them, for the reason that 
the plaintiffs have a full, complete and adequate remedy at 
law to redress any grievances they may have.

Briefly, these are the main contentions of the res- 
spective parties as reflected by the pleadings in this case.

The majority of the Court has reached the conclusion 
that under the issues as raised by the pleadings in this case 
it is the duty of this court to abstain from passing on the 
issues, but retain the cause of action on its docket and re­
mit the plaintiffs to the State Courts of Mississippi for 
(R-732)
a prior adjudication of the issues and of the scope and mean­
ing of its own statutes as so defined. This Court should 
simply stay its hand until the adequate and proper remedies 
provided for by the statutes of the State of Mississippi 
should be exhausted. By this procedure the comity existing 
between the Federal Courts and the State Courts would be 
maintained without any serious injury to anyone. With the 
exception of Sections 2351 and 7784 A/, the sections of the

1/ The Mississippi Supreme Court in Louisville, N. 0. & T.R. 
Co. v„ State. 6o Mi3S. 662, 6 So. 203',’ held that the 'Mis'- 
sissippl Act of March 2, 1888, now Sections 2351 and 7784, 
Mississippi Code 1942, Recompiled, applied solely to 

(R-733)
commerce within the state and affirmed a conviction based 
on a violation of the Act. In affirming, the United States 
Supreme Court held, in Louisville, N. 0. & T. R. Co, v, 
Mississippi. 1889, 133 tJ. S. 587, that s state may require



636

(R-732)
Mississippi Code complained of and the constitutionality of 
which is under attack herein have never been passed upon by 
the Supreme Court of Mississippi. These sections 2351# 
2351.5# 2351.7, 7784, 7785# 7786, 7786-01, 7787# and 7787-5 
of the Mississippi Code of 1942 as amended are set out in 
Appendix II to this opinion. Before this Court should pass 
upon the constitutionality of these statutes in this particu­
lar case, wherein it is shown by the contentions of the 
parties that there will be factual issues as well as the 
constitutionality of the statutes involved, the courts of the 
State of Mississippi should be afforded an opportunity to 
pass upon them.

Tills equitable principle of abstention is well sup­
ported by the decisions of the Supreme Court of the United 
States, as well as by many of the decisions of the various 
Courts of Appeal and District Courts. It will not be neces­
sary to refer to all the decisions that have adhered to this

1/ railroads to provide separate accommodations for the 
white and colored races without violating the commerce 
clause of the Constitution so long as the statute applies 
only to commerce within the state.

In 1912, the Mississippi Supreme Court held, in 
Alabama & V. Ry. Co, v, Morris, 103 Miss. 511# 60 So. 11, 
that-Sections 4059 and 1351, Mississippi Code 1906, now 
Sections 2357 and 7784, applied to interstate travelers 
and was a reasonable exercise of the police power of the 
state, and, in 1919, the Mississippi Supreme Court held 
that Section 4059# Mississippi Code 1906, now Section 7784, 
Mississippi Code 1942, Recompiled, did not violate either 
the commerce clause of, or the Fourteenth Amendment to, 
the federal Constitution. Illinois Central R. Co, v, Red­
mond, 119 Miss. 785# 8l So.' lip."



637
(R-732)
doctrine, but the quotations from a few of the leading cases 
will be decisive. Probably the one most nearly in point is 
the case of Harrison, Attorney General of Virginia, et al v. 
National Association for the Advancement of Colored People, 
et al, 360 U. S. 167, in which it was held by the Supreme 
Court of the United States that the Federal Courts should 
not adjudicate the constitutionality of state enactments 
fairly open to interpretation until the State Courts have 
been afforded a reasonable opportunity to pass upon them.

irt saidj
"According every consideration to the opinion of the 

majority below, we are nevertheless of the view that the 
District Court should have abstained from deciding the merits 
of the issues tendered it, so as to afford the Virginia 
courts a reasonable opportunity to construe the three sta­
tutes in question. * * * *

"This now well-established procedure is aimed at the 
avoidance of unnecessary interference by the federal courts 
with proper and validly administered state concerns, a 
course so essential to the balanced working of our federal 
system. To minimize the possibility of such interference a 
’scrupulous regard for the rightful independence of state 
governments. . . should at all times actuate the federal 
courts.’ Matthews v. Rodgers, 284 U. S. 521, 525, as their 
’contribution . . .  in furthering the harmonious relationship 
between state and federal authority . . .  * Railroad Comm’n v.



638
(R-754)
Pullman Co., 312 U. S. 496,501. In the service of this 
doctrine, which this Court has applied In many different 
contexts, no principle has found more consistent or clear 
expression than that the federal courts should not adjudicate 
the constitutionality of state enactments fairly open to in­
terpretation until the state courts have been afforded a 
reasonable opportunity to pass upon them. See e.g., Rail­
road Commfn v. Pullman Co., supra; Chicago v. Pieldcrest 
Dairies, Inc., 316 U. S. 168; Spector Motor Service, Inc., 
v. McLaughlin, 323 U. S. 101; American Federation of Labor 
v. Watson, 327 U. S. 582; Shipman v. DuPre, 359 U. S. 321; 
Albertson v. Millard, 345 U. S. 242; Government & Civic 
Employees v. Windsor, 355 U, S. 364. This principle does 
not, of course, involve the abdication of federal jurisdic­
tion, but only the postponement of its exercise; it serves 
the policy of comity Inherent in the doctrine of abstention; 
and it spares the federal courts of unnecessary constitu­
tional adjudication. See Chicago v. Pieldcrest Dairies,
Inc., supra, at 172-175.

"The present case, in our view, Is one which calls for 
(R-T35)
the application of this principle, since we are unable to 
agree that the terms of these three statutes leave no rea­
sonable room for a construction by the Virginia courts which 
might avoid in whole or in part the necessity for federal 
constitutional adjudication, or at least materially change 
the nature of the problem."



639
(R-735)

The Court said, further: "We do not Intimate the 
slightest view as to what effect any such determinations 
might have upon the validity of these statutes. All we 
hold is that these enactments should be exposed to state 
construction or limiting interpretation before the federal 
courts are asked to decide upon their constitutionality, so 
that federal judgment will be based on something that is a 
complete product of the state, the enactment as phrased by 
its legislature and as construed by its highest court."

Just as was said by the Supreme Court of the United 
States, supra, we do not in this case undertake to pass upon 
any of the issues that have been raised, nor do we intimate 
whether the statutes are constitutional or unconstitutional, 
for the reason that the courts of the State of Mississippi 
should be permitted to pass upon these questions, uninfluenced 
by any adjudication or intimation of ours as to the statutes. 
We have given careful consideration not only to the opinion 
of the majority of the Court in that case and the governing 
rule announced by it, but we also have considered the think­
ing of Mr. Justice Douglas, who dissented, in which he was 
joined by the Chief Justice and Mr. Justice Brennan, whose 
opinion set out the history and doctrine, considering also 
the decisions cited in the dissenting opinion. However, as 
a general rule, every lawsuit must be determined by the 
issues raised in the pleadings in the particular case, and 
it is our -view that in this particular case, where the con-



640
(B-725)
stltutionallty of the statutes of Mississippi is questioned 
and has never been passed upon by the highest court of the 
(R-736)
State, a sound discretion requires that the federal courts 
abstain. In the case of Specter Motor Co. v. McLaughlin,
323 U. S. 101, the Supreme Court used this language:

"If there is one doctrine more deeply rooted than any 
other in the process of constitutional adjudication, it is 
that we ought not to pass on questions of constitutionality—  

here the distribution of the tailing power as between the 
State and the Nation— unless such adjudication in unavoid­
able. And so, as questions of federal constitutional power 
have become more and more intertwined with preliminary doubts 
about local law, we have insisted that federal courts do not 
decide questions of constitutionality on the basis of preli­
minary guesses regarding local law." (Citing authorities).

In connection with Harrison v, N.A.A.C.P., supra, see 
the many authorities cited in the dissenting opinion of 
Judge Sterling Hutcheson, 159 Fed* Sup. 535* with reference 
to abstention* In that exhaustive dissent he reviews, at 
page 540, et seq., the many authorities upholding this doc­
trine of abstention.

We are in thorough accord with the opinion of the Court 
of the Fifth Circuit in the case of Empire Pictures Distribu­
ting Company, Inc., et al v. City of Fort Worth, et al,
273 Fed. (2) 529, in which the Court upheld the doctrine of 
abstention and quotes at length from many of the applicable



64i
(R-736)
authorities to that doctrine, and particularly applicable to 
the issues raised in the case here. In that case the Court 
said: "At the threshold of the case lies the question whe­
ther the trial court ought not sua sponte to have withheld 
action ’while the parties repaired to a state tribunal for 
an authoritative declaration of applicable state law*." The 
Court then, in a very able opinion, aid. exhaustive, cited 
the many authorities, quoting from a number of them to the 
effect that the trial courts should have abstained. We shall 
not quote at length from that opinion more than to say that m  
adopt it as announcing the controlling principles of the law
govern us in abstention in this case. In the earlier case 
of Railroad Comm’n of Texas, et al v. Pullman Company, et al, 
312 U. S. 496, the Supreme Court of the United States said: 

"Pew public interests have a higher claim upon the 
discretion of a federal chancellor than the avoidance of 
needless friction with state policies, whether the policy 
relates to the enforcement of the criminal law, Fenner v. 
Boykin, 271 U. S. 240, Spielman Motor Co. v. Dodge, 295 U.S. 
89j or the administration of a specialized scheme for liqui­
dating embarrassed business enterprises, Pennsylvania v. 
Williams, 294 U. S. 176; or the final authority of a state 
court to interpret doubtful regulatory laws of the state, 
Gilchrist v. Interborough Co., 279 U. S, 159; Of. Hawks v. 
Hamill, 288 U. S. 52.61. These cases reflect a doctrine of 
abstention appropriate to our federal system whereby the

(R-737



642
(R—737)
federal courts, 'exercising a wise discretion,' restrain their 
authority because of 'scrupulous regard for the rightful in­
dependence of the state governments' and for the smooth 
working of the federal judiciary. See Cavanaugh v. Looney,
248 U. S. 453, 457; Di Giovanni v. Camden Ins, Assn,, 296 
U. S. 64, 73. This use of equitable powers is a contribution 
of the courts in furthering the harmonious relation between 
state and federal authority without the need of rigorous 
congressional restriction of those powers.11

We think the above authorities and those cited below ^  
along with those mentioned in the various opinions in the 
cases supra are atqple to require that the federal court 
abstain.

(R-738)
Moreover, the doctrine of abstention is peculiarly appli­

cable in this case because of the attack made upon Sections 
2087,5, 2087.7 and 2089,5 of the Mississippi Code of 1942, 
generally known as the peace statutes. All the authorities 
hereinbefore cited are applicable to these statutes, but 
there are other authorities which we think are just as appli­
cable and for that reason we are treating these separately.

2/ Martin v. Creasy, 360 U. S. 219; County of Allegheny v. 
Mashuda Co., et al, 360 U. S. 185; Watson v. Buck, 313 
U. S, 387; Callaway v, Benton, 336 U. S. 142; Govern­
ment and Civic Employees Organization of C.I.O. v. 
Windsor, 353 U. S. 654; Two Guys from Harrison— Allen­
town v. McGinley, 366 U. S. 589.



64-3
(R-738)
As shown hy the pleadings, the plaintiffs are contending 
that the defendants are using these statutes to enforce se­
gregation and the defendants are contending that these sta­
tutes are constitutional and are not being used to enforce 
segregation, but are being used for the purpose of protecting 
the public against violence and disturbance of the peace.
This Court, in the case of Wykcoff, had an occasion to pass 
upon a petition for habeas corpus growing out of the arrest 
of one of the "Freedom Riders" in the City of Jackson, 
wherein it was contended by the petitioner in that case that 
this statute was being used to enforce segregation. Her 
petition for the writ of habeas corpus alleged that she was 
convicted of violation of Section 2087.5 of the Mississippi 
Code and that she did not have any remedy at law other than 
the writ of habeas corpus to secure her release, and that 
her imprisonment was a denial of her due process of law 
under the Fifth and Fourteenth Amendments to the Constitu­
tion of the United States, The respondent, the Sheriff of 
Hinds County, in answering the petition for the writ, averred 
that she was convicted in a court having jurisdiction and 
that he was holding the petitioner by virtue of a commitment 
from that court. The matter was heard before the Court of the 
Southern District of Mississippi and the writ denied. She 
immediately petitioned the Court of Appeals for the Fifth 
Circuit for an appeal in forma pauperis, that the petition 
be granted and the case advanced. The Court of Appeals



m
(R-738)
denied the petition and since the opinion has not been 
published, a copy of the opinion rendered by the Court is 
attached hereto in Appendix III.
(R-739)

In the trial before the lower court it was contended by 
petitioner that she had no adequate remedy at law, which con­
tention was not upheld, as it was shown that under the sta­
tues of Mississippi particularly she did have a full, ade­
quate and speedy remedy at law and. these statutes are set out 
in the opinion of the District Court. 1$6 P. Supp. 515.
In that case the Court did retain jurisdiction, but since the 
petitioner did have adequate remedy at law, the writ was 
denied. In that opinion theCourt said;: "As heretofore 
stated, the federal courts are very reluctant indeed to in­
terfere with the orderly process of a state court involving 
state matters," And cited the cases of Davis v. Burke,
179 U. S. 3991 Ex Parte Hawk, 321 U. S. 114; Stock v. Boyle, 
5^2 U. S. 1; Brown v. Allen, 344 U. S. 443.

It is true that upon an application for a writ of 
habeas corpus there is a federal statute which prohibits the 
federal courts from interferring with the state courts, 
except in those cases specifically authorized by Congress. 
However, the principle involved is the same, since it is the 
general doctrine that the federal courts should not lend 
their equitable powers and injunctive powers until the state 
courts first have passed upon the constitutionality of its 
own acts. Section 2233, Title 28, U. S. C. A. prohibits a



645
(R-739)
court of the United States from granting an injunction to 
stay proceedings in a state court except as expressly 
authorized by the Act of Congress, or when necessary in aid 
of its jurisdiction, or to protect and effectuate its 
judgments. In view of that statute the writ of habeas cor­
pus was denied in the Wykcoff case, and citing in support 
thereof: Empire Pictures Distributing Co. v. City of Fort 
Worth, 273 Fed. 2d 529; Douglas v. City of Jeannette, 319 
U. S. 157.

At pages 163-164 of the City of Jeannette case, supra, 
the Supreme Court of the United States said:
(R-740)

"The power reserved to the states under the Constitution 
to provide for the determination of controversies in their 
courts may be restricted by federal district courts only in 
obedience to Congressional legislation in conformity to the 
Judiciary Article of the Constitution. Congress, by its 
legislation, has adopted the policy, with certain well de­
fined statutory exceptions, of leaving generally to the 
state courts the trial of criminal cases arising under state 
laws, subject to review by this Court of any federal questions 
involved. * * *

"* * * No person is immune from prosecution in good 
faith for his alleged criminal acts. Its imminence, even 
though alleged to be in violation of constitutional guaran­
ties, is not a ground for equity relief since the lawfulness



646
(R-740)
or constitutionality of the statute or ordinance on which the 
prosecution is based may be determined as readily in the 
criminal case as in a suit for injunction. * * * Where the 
threatened prosecution is by state officers for alleged 
violations of a state law, the state courts are the final 
arbiters of its meaning and application, subject only to 
review by this Court on federal grounds appropriately asser­
ted. Hence the arrest by the federal courts of the processes 
of the criminal law within the states, and the determination 
of questions of criminal liability under state law by a 
federal court of equity, are to be supported only on a show­
ing of danger of irreparable injury ‘both great and immediate*. 

*
"* * * it does not appear from the record that petition­

ers have been threatened with any injury other than that in­
cidental to every criminal proceeding brought lawfully and in 
good faith, or that a federal court of equity by withdrawing 
the determination of guilt from the state courts could rightly 
afford petitioners any protection which they could not secure 
by prompt trial and appeal pursued to this Court."
(R-741)

The principles announced in the Jeannette case have 
been reaffirmed on the basis of that case and the Stefanelli 
case, 342 U. S. 117, 123-124, in two Supreme Court cases de­
cided this year: Wilson v. Schnettler, et al, 365 U. 3. 381, 
and Tugach v. Dollinger, 365 U. S. 458. These cases are dis­
cussed more at length in the Wyckoff case, 196 P. Supp. 522-



647
(R-741)
52?.

The whole question of State-Federal relationships and 
their history is discussed in a recent decision of the Court 
of Appeals for the Fifth Circuit in Smith & Son, Inc. v. 
Williams, 275 F. 2d 396. Beginning on page 402 will be found 
a large number of cases applicable to the questions before 
us.

Statutes generally known as peace statutes exist in 
most of the States of the Union and have been applied under 
a variety of circumstances in recent times. They have been 
used by the officers of the States and subdivisions thereof 
to prevent violence and more serious offenses where people 
have gathered, or are threatening to gather in numbers under 
pressure of emotional stress. The public press carried an 
account recently of a congregation of a large number of white 
people when Negroes sought to make use of bathing beaches 
at or near Chicago. It was stated that the state officers 
made use of load speakers to order the crowd to leave the 
scene or be subject to imprisonment under state laws. It 
was not hinted that those who had collected did not have the 
full right to be where they were. Acting under state peace 
statutes, the officers simply required them to move on, 
because in their judgment their presence was likely to lead 
to a breach of the peace. The scope and reach of such sta­
tutes varies from state to state, and their application to 
a given situation makes a peculiar call on the judgment of 
state tribunals before such application should be tested in



a court of the United States,
(R-742)

The situation disclosed by the facts in this record 
fall, in our opinion, directly within the scope of the de­
cisions of the Supreme Court requiring abstention until the 
State courts ha/e decided the full meaning of their respect­
ive statutes and their application to the situations which 
are presented to us.

The record before us shows the pendency of a number of 
proceedings before the State Courts of Mississippi under the 
peace statutes, and the class for which the plaintiffs here 
purport to act is already participating in state court pro­
ceedings where all of the questions raised before us may be 
fully presented with the right of appeal to the Supreme Court 
of the United States.

An order will be entered, therefore, abstaining from 
further action in this cause to give the State Courts of 
Mississippi a reasonable opportunity to act either in the 
cases already pending or in any new case which any of the 
parties may elect to commence.

Mr #  *  *

(R-743)
APPENDIX I 

STATUTES INVOLVED

Mississippi Code of 1942
p. 2087.5 - "1. Whoever with intent to provoke a breach of

the peace, or under circumstances such that a breach of



649
(R-743)

the peace may he occasioned thereby:

"(1) crowd or congregates with others in or upon 
shore protecting structure or structures, or a public 
street or public highway, or upon a public sidewalk, 
or any other public place, or in any hotel, motel, 
store, restaurant, lunch counter, cafeteria, sandwich 
shop, motion picture theatre, drive-in, beauty parlor, 
swimming pool area, or any sports or recreational area 
or place, or any other place of business engaged in 
selling or serving members of the public, or in or 
around any free entrance to any such place of business 
or public building, or to any building owned by another 
individual, or a corporation, or a partnership or an 
association, and who fails or refuses to disperse and 
move on, or disperse or move on, when ordered so to do 
by any law enforcement officer of any municipality, or 
county, in which such act or acts are committed, or 
by any law enforcement officer of the State of Missis­
sippi, or any other authorized person, or

"(2) insults or makes rude or obscene remarks 
or gestures, or used profane language, or physical 
acts, or indecent proposals to or toward another 
or others, or disturbs or obstructs or interferes 
with another or others, or

"(3) while in or on any public bus, taxicab, or



650
( R - 7 W

other vehicle engaged in transporting members of 
the public for a fare or charge, causes a disturbance 
or does or says, respectively, any of the matters 
or things mentioned in subsection (2) supra, to, 
toward, or in the presence or any ether passenger 
on said vehicle, or any person outside of said 
vehicle or in the process of boarding or departing 
from said vehicle, or any employee engaged in and 
about the operation of such vehicle, or

"(4) refusing to leave the premises of another 
when requested so to do by any owner, lessee, or any 
employee thereof,

"shall be guilty of disorderly conduct, which is made 
a misdemeanor, and, upon conviction thereof, shall be 
punished by a fine of not more than two hundred dollars 
($200.00), or imprisonment in the county jail for not 

(R-744)
more than four (4) months, or by both such fine and im­
prisonment; and if any person shall be guilty of dis­
orderly conduct as defined herein and such conduct 
shall lead to a breach of the peace or incite a riot 
in any of the places herein named, and as a result of 
said breach of the peace or riot another person or 
persons shall be maimed, killed or injured, then the 
person guilty of such disorderly conduct as defined 
herein shall be guilty of a felony, and upon conviction



651
(R-744)

such person shall he imprisoned in the Penitentiary 
not longer than ten (10) years,

"2, The provisions of this act are supplementary 
to the provisions of any other statute of this state.

"3. If any paragraph, sentence, or clause of 
this act shall he held to he unconstitutional or 
invalid, the same shall not affect any other part, 
portion or provision of this act, but such other part 
shall remain in full force and effect."
Source: Laws of i960.

p, 2087.7 - "1. It shall be unlawful for any person or 
persons, while in or on the premises of another, 
whether that of an individual person, or a corpora­
tion, or a partnership, or an association, and on 
which property any store, restaurant, sandwich shop, 
hotel, motel, lunch counter, bowling alley, moving 
picture theatre or drive-in theatre, barber shop or 
beauty shop, or any other lawful business is operated 
which engaged in selling articles of merchandise or 
services or accommodation to members of the public, 
or engages generally in business transactions with 
members of the public, to:

"(1 ) prevent or seek to prevent, or interfere with, 
the owner or operator of such place of business, or 
his agents or employees, serving or selling food and



652
( R - 7 W

drink, or either, or rendering service or accommoda­
tion, or selling to or showing merchandise to, or other­
wise pursuing his lawful occupation or business with, 
customers or prospective customers, or other members 
of the public who may then be in such building, or

"(2 ) prevent or seek to prevent, or interfere 
with, or seek to interfere with, other persons, ex­
pressly or impliedly invited upon said premises, or 
prospective customers, coming into or frequenting 
such premises in the normal course of the operation 
of the business conducted and carried on upon said 
premises,
"shall be guilty of disorderly conduct, a misdemeanor, 
and upon conviction thereof, shall be punished by a 
fine of not more than five hundred dollars ($500.00), 

(R-745)or by imprisonment in the county jail for not more than 
six (6) months, or by both such fine and imprisonment.

"2. The provisions of this act are supplementary 
to the provisions of any other statute of this 
state.

"3. If any paragraph, sentence, or clause of this 
act shall be held to be unconstltutio rial, or invalid, 
the same shall not affect any other part, portion 
or provision thereof, but such other part shall re­
main in full force and effect." Source: Laws of i960.



653
(R-7^5)
p. 2089.5 “ "1. Any person who disturbs the public peace, 

or the peace of others, by violent, or loud, or insult­
ing, or profane, or indecent, or offensive, or boisterous 
conduct or language, or by intimidation, or seeking to 
intimidate any other person or persons, or by conduct 
either calculated to provoke a breach of the peace, 
or by conduct which may lead to a breach of the peace, 
or by any other act, shall be guilty of 3 misdemeanor, 
and upon conviction thereof, shall be punished by a 
fine of not more than five hundred dollars ($500.00), 
or by imprisonment in the county jail not more than 
six (6) months, or both.

"2. The provisions of this act are supplementary 
to the provisions of any other statute of this state.

"3. If any paragraph, sentence or clause of this 
act shall be held to be unconstitutional or invalid, 
the same shall not affect any other part, portion 
or provision thereof, but such other part shall remain 
in full force and effect." S ource: Laws of i960.

*  *  #  #

(R-746)
APPENDIX II 

STATUTES INVOLVED 
Mississippi Code of 1942

P* 2351 - "If any person or corporation operating a railroad 
shall fail to provl.de two or more passenger cars for



654
(R-746)

each passenger train, or to divide the passenger cars 
by a partition, to secure separate accommodations for 
the white and colored races, as provided by law, or 
if any railroad passenger conductor shall fail to 
assign each passenger to the car or compartment of 
the car used for the race to which the passenger 
belongs, he or it shall be guilty of a misdemeanor, 
and, on conviction shall be fined not less than 
twenty dollars nor more than five hundred dollars." 
Sources Code of 1892.

p. 2551.5 - "Every railroad company, bus company or other 
common carrier for hire owning, maintaining or oper­
ating a passenger depot, bus station or terminal 
where a waiting room for passengers is maintained 
and operated shall cause to be constructed and main­
tained in connection with such reception or waiting 
room two closets or retiring or pest rooms to be 
exclusively used by white passengers in intrastate 
commerce arriving and departing from such depot, 
bus station or terminal and the following notice 
shall be painted or shown in bold letters on the 
door of one: "Rest room, white female only in intra­
state travel", and on the other: "Rest room, white 
male only in intrastate travel"; and likewise two 
closets or retiring or rest rooms shall be con­
structed and maintained for colored passengers in



655
(H-7^6)

intrastate travel with like signs painted or shown 
in bold letters on the doors thereof, substituting 
the word "colored" for "white", and such owner or 
operator shall see that the closets or rest rooms 
are equally clean and in equally good sanitary con­
dition.
"No white person shall enter, frequent, occupy or 
use the colored closets or rest rooms required by 
this act, and no colored person shall enter, fre­
quent or occupy or use the white closets or rest 
rooms required by this act, except, however, regu­
larly employed persons of the owner or operator of 
the passenger depots, bus stations or terminals may 
enter such closets or rest rooms in the discharge 
of their assigned duties.
".Any person violating the provisions of this act

(R-74?)shall be guilty of a misdemeanor and upon conviction 
thereof shall be fined not more than one thousand 
dollars ($1 ,000.00) or confined in jail for not more 
than one year, or both." Source: Laws of 1956

P* 2351.7 - "1 . Any person traveling in intrastate travel 
by rail, bus, airline or other common carrier for hire 
who knowingly or wilfully enters or attempts to enter 
the waiting room not marked and provided for persons 
other than his or her race as required by law, shall



656

(H-7^7)
be guilty of a misdemeanor and upon conviction 
thereof shall be fined not more than one thousand 
dollars ($1 ,000.00) and imprisoned in jail not more 
than sixty (60) days, or both such fine and imprison­
ment.

,:2. No white person shall enter, frequent, occupy 
or use the colored waiting room of any depot, bus 
station or terminal when such waiting room is marked 
in bold letters as required by law; and no colored 
person shall enter, frequent, occupy or use the white 
waiting room of any depot, bus station or terminal 
when same is marked in bold letters as required by law, 
except, however, regularly employed persons of the 
owner or operator of depots, bus stations or terminals 
may enter same in the discharge of their assigned and 
required duties.

’’Any person violating the provisions of this sec­
tion shall be guilty of a misdemeanor and upon con­
viction thereof shall be fined not more than one 
thousand dollars ($1 ,000.00) and imprisoned in jail 
for not more than one year, or both.

"3. No action or suit in law or in equity may be 
brought in any court of this state against any law 
enforcement officer for damages for false arrest of 
any passenger because of a violation of this act, nor 
shall any common carrier of passengers, or its employees



657
(3-747)

be subject to suit for damages on account of sued 
common carrier of passengers ir its employees com­
plying with the provisions of this act.

"4. In the event any part cr parts of this act 
shall be held unconstitutional, the- remaining por­
tion of this act shall remain in full force and 
effect." Source; Laws of 1956.

p. 778^ - "Every railroad carrying passengers in this state 
shall provide equal but separate accommodations for 
the white and colored races by providing two cr more 
passenger cars for each passenger train, or by divid­
ing the passenger cars by a partition to secure se­
parate accommodations^ and the conductor of such passen­
ger train shall have power, and is required, to assign

(R-748)
each passenger to the car, or the compartment of a 
car, used for the race to which such passenger belongs! 
and should any passenger refuse to occupy the car towhich 
he or she is assigned by the conductor, the conductor 
shall have power to refuse to carry such passenger on 
the train, and for such refusal neither he nor the 
railroad company shall be liable for damages in any 
court." Source: Code of 1892.

P* 7785 - "All persons or corporations operating street
railways and street or municipal buses, carrying pas­
sengers in this state, and every common carrier by



658
(3-748)

motor vehicle of passengers in this state as ae- 
fined by section 5(e) of chapter 142 of the laws of 
1938 (p, 7634* Code of 1942)a shall provide equal, 
but separate* accommodations for the white and colored 
races,
"Every common carrier by motor vehicle of passengers 
in this state* as defined by section 3(e) of chapter 
142 of the laws of 1938 (p, 7631* Code of 1942), by 
buses or street cars operated entirely within the 
corporate limits of a municipality, or within a radius 
of 5 miles thereof, shad divide its passengers by the 
use of an appropriate sign 4 x 9  inches, for the 
purpose of, and in s manner that will "suitably pro­
vide for, a separation of the races, and all other 
buses and motor vehicles carrying passengers for hire 
in the state of Mississippi shall use a latticed 
movable partition extending from the top of the seat 
to the ceiling of the vehicle, said partition not to 
obstruct the view of the driver of the vehicle to 
secure such separate accommodations; provided, how­
ever, that this act shall not apply to buses operated 
exclusively for the carrying of military personnel; 
and the operators of such passenger buses shall have 
power, and are required, to assign each passenger to 
the compartment of the bus used for the race to which 
such passenger belongs; and in no case shall eny



659
(R-*748)

passenger be permitted tc stand In the aisle of the 
compartment in which he does not belong and is not so 
assigned; and should any passenger refuse to occupy 
the compartment to which he or she belongs and is 
assigned, the operator shall have power to refuse to 
carry such passenger on the bus; or should either com­
partment become so loaded in transit as not to permit 
the taking on of ary further passengers for that com­
partment, then the bus operator shall not be required 
and shall refuse to take on any further passengers in 
violation of this act. Even though such additional 
passengers may have purchased and may held tickets 
for transportation on the said bus, the only remedy 
said passengers shall have for failure or refusal to 
carry them under such circumstances is the right to 
a refund of the cost of his ticket, and for said re­
fusal in either case neither the operator nor the 

(R-7^9)
common carrier shall be liable for damages in any 
court. Such partition may be made movable sc as to 
allow adjustment of the space in the bus to suit the 
requirements of traffic." Source: Code of 1956.

p. 7786 - "The operators of such street cars and street 
buses and motor vehicles, as defined by chapter 142 
of the laws of 1958 (p.p. 7632-7687, Code of 1942) 
shall have power and are required to assign each pas sen-



66 0
(R-7^9)

ger to the space or compartment used for the race 
to which such passenger belongs.
"Any passenger undertaking or attempting to go into 
the space or compartment to which by race he or she 
does not belong shall be guilty of a misdemeanor, 
and upon conviction, shall be liable to a fine of 
twenty-five dollars ($25.00), or, in lieu thereof, by 
imprisonment for a period of not more than thirty (30) 
days in the county jail; and any operator of any street 
car or street bus or motor vehicle as herein defined, 
assigning or placing a passenger to the space or com­
partment othern than the said one set aside for the 
race to which said passenger belongs shall be guilty 
of a misdemeanor and, upon conviction, shall be liable 
to a fine of twenty-five dollars ($25.00), or, in lieu 
thereof, to imprisonment for a period of not more than 
thirty (30) days in the county jail."
Source: Code of 1906

p. 7786.01 - "Every person or corporation operating street 
railways and street or municipal buses, carrying pas­
sengers in this state, and every common carrier of 
passengers in this state by motor vehicle, as defined 
by section 3 (e) of chapter 1^2 of the laws of 1938 

(p* 763^, Code of 19j!-2), guilty of wilful and continued 
failure to observe or comply with the provisions of 
this act shall be liable to a fine of twenty-five



661

(H-749)
dollars ($2.5 ,00) for each offense., and each day's 
violation, of the provision hereof shall constitute a 
separate violation of this act.; provided, however, 
that in the case of persons or corporations operating 
street railways and street or municipal fuses, the 
fine shall be ten dollars ($10.00) instead of twenty- 
five ($25.00). Sources, Laws of ISM.

p. 773? - '’All officers and directors cf street railway 
companies who shall refuse or neglect tn comply with 
the provisions and requirements of the two preceding 
sections shall be deemed guilty of a misdemeanor, 
on conviction shall be fined rot less than one hundred 
dollars or be imprisoned in the county jail not less 
than sixty, and not more than six months, and any con­
ductor or other employee of such street car company 
having charge of the same, who shall refuse or neglect 
to carry out the provisions of this chapter shall, on 
conviction, be fined not less than twenty-five dollars

(R-750)or be imprisoned in. the ccanty jail for not less than 
ten days nor more than thirty days for each and every 
offense; provided, that nothing herein contained shall 
be construed as applying to nurses attending children 
of the other race." Source: Code of 1906.

p. 7787.5 - "1. In all passenger depots, bus stations or
terminals owned, operated or leased in the State of



662

(a-750)
Mississippi by a railroad company, bus company or any 
other common carrier of passengers, the owner or 
operator thereof shall cause to be constructed and 
maintained waiting or reception rooms as will secure 
the comfort of the passengers.

"In such depots, bu3 stations or terminals there 
shall be constructed, provided and maintained for 
the whiwe Intrastate passengers a separate waiting 
or reception room, on each entrance to which shall 
be painted or sho\m in bold letters the following 
"White waiting room,, intrastate passengers".; and in. 
such depot, bus station or terminal there shall be 
constructed, provided and maintained a separate wait- 
ing or reception room for the color intrastate passen­
gers, on each entrance to which shall be painted or 
shown in bold letters the following:- "Colored wait­
ing room, intrastate passengers."

"2. Any common carrier of passengers for hire or 
any railroad or bus company, whether an individual or 
corporation, which fails or refuses to comply with 
the provisions of this act shall be liable in the penal 
sum of one thousand dollars ($1 ,000.00) per day for 
each day of such failure or refusal, to be recovered 
by suit filed in the county in which such depot, bus 
station or terminal is situated, by either the attorney 
general, the district attorney of the district, or the



663
(H-750)

county attorney of the county In which said passenger 
depot, bus station or terminal is situated. 
riIn addition to the penalty provided herein, the 
Attorney General of the State of Mississippi or 
the district attorney cf tne district, or county 
attorney in the county in which said depot, bus 
station or terminal is situated may file suit in 
the chancery court cf such county for a mandatory 
injunction to compel compliance with the provisions 
of this act, and the chancery court of any county 
wherein the provisions of this act are not complied 
with shall have jurisdiction to issue an injunction 
to require compliance with this act, and to hold 
in contempt of court any railroad company, bus com­
pany or any other common carrier of passengers fail­
ing to comply with the orders and decrees of the 
court directing compliance with this act.
"3. The requirements of this act shall not be 

(R-751)applicable to any person, firm or corporation 
operating a place of business wherein said person, 
firm or corporation acts only as ticket agent for 
a bus company or other common carrier in addition 
to his regular business and wherein no passenger 
waiting room or reception room is maintained.11 
Source: Laws of 1956



664

(R-752)
APPENDIX III

IN THE UNITED STATES CQi IRT OF APPEAI'S 
TOR THE FIFTH CIRCUIT

In the Matter of:
ELIZABETH PORTER WYCKOFF 
For a Writ of Habeas Corpus

Before TUTTLE, Chief Judge, JONES and WISDOM, Circuit 
Judges.
BY THE COURT?

The petitioner herein seeks an order authorizing 
her to appeal from an order entered July 6, 1961, entered 
by the United States District Court for the Southern Dis­
trict of Mississippi, and moves for permission to proceed 
on her appeal upon the original papers filed in said Dis­
trict Court. Petitioner further moves for an immediate 
hearing of said appeal.

Petitioner asserts that she was arrested "for 
entering the white waiting room at the Continental Bus 
Terminal, Jackson, Mississippi, in the company of ether 
interstate passengers of the Negro race, was sentenced on 
June 5, 1961, to two months imprisonment in the Hinds County 
jail, suspended, and a fine of $200 for violating Section 
2087.5# Mississippi Code of 1942, As amended.

Petitioner asserts that because of the short term 
of her detention, and "the clear 'violation by respondent 
of the constitution and laws of the United States, the



665
(H-752)
requirements that she must first exhaust her state remedies 
would, in effect, deny her the right of habeas corpus, in 
a situation where it was the sole effective remedy with 
(R-753)
which to safeguard her statutory and constitutional rights 
and liberties."

It no where appears in the petition that the 
petitioner has attempted to exhaust remedies available to 
her in the courts of the state of Mississippi, or that 
there is either an absence of available state remedies 
or that other circumstances exist which render such state 
remedies ineffective to protect the rights of the prisoner. 

The jurisdiction of a federal court is fixed by 
the Acts of Congress. 28 U.S.C.A. p. 2254 provides as 
follows:

p, 2254. Sbate custodyj remedies in State courts. 
An application for a writ of habeas corpus in 
behalf of a person in custody pursuant to the 
judgment, of a State Court shall not be granted 
unless it appears that the applicant has ex­
hausted the remedies available in the courts of 
the State, or that there is either an absence 
of available State corrective process or the 
existence of circumstances rendering such pro­
cess ineffective to protect the rights of the 
prisoner.
An applicant shall not be deemed to have ex-



666

(R-753)
hausted the remedies available in the courts of 
the State, within the meaning of this section, 
if he has the right under the law of the State 
to raise, by any available procedure, the ques­
tion presented."

It not appearing from anything asserted in the peti­
tion in this case that petitioner sought to appeal her con- 

(R-754)viction, which she alleges to have been void and unconstitu­
tional, or that she is financially unable to make bond 
pending such appeal, and it not appearing that petitioner 
has no right to test her detention by habeas corpus in the 
state courts of Mississippi, there appears to be no sound 
reason for this Court to grant petitioner’s motion for 
expediting the hearing in this Court. There thus appears 
to be no sound reason for granting petitioner’s motion for 
permission to appeal upon the original papers, since no 
allegations are contained in the petition asserting peti­
tioner’s financial inability to cause the record to be pre­
pared in accordance with the rules of this Court.

The motions are, therefore, DENIED



(R~8ll)
667

DISSENTING OPINION OP JUDGE RIVES 
(Filed - Nov. 17, 1961)

C.A. No. 3133 - SAMUEL EAILET, at al. v. JOE T. PATTERSON, 
Attorney General of the State of Mississippi, Jackson, Miss., 
et al.
RIVES, Circuit Judge, dissenting;

The complaint seeks to enjoin state-Imposed racial 
segregation in. pullic travel facilities in the State of 
Mississippi and the City of Jackson, Mississippi. It seeks 
relief against two types of statutes and ordinances: (1 ) 
laws which on their face require the segregation of the 
races, and (2 ) laws which purport to deal with the mainte­
nance of law and order tut which, according to the complaint, 
are U3ed to maintain, segregation.

The plaintiffs are three adult Negro citizens 
residing in Jackson, Mississippi, who sue on behalf of them­
selves and of other Negroes similarly situated and affected 
by the statutes and ordinances complained of. The defen-

1/ According to the complaint, "the class is composed 
of Negro citizens and residents of the State of 
Mississippi and other states who utilize the facilities 
and services of the defendant carriers located in the 
City of Jackson, and located in other cities of the 
State of Mississippi, and who travel in both intrastate 
and interstate commerce."

dants are the Attorney General of Mississippi; the City of 
Jackson, its Mayor, Commissioners and Chief of Police; Jack- 
son Municipal .Airport Authority; Continental Southern Lines, 
Ins.; Southern Greyhound Lines; Illinois Central Railroad,



668

(R-8 11)
Inc.; Jackson City Lines, Inc.; and Cicero Carr d/fa/a 
Cicero's Airport Restaurant.

The original complaint and motion for preliminary 
injunction were filed on June 9, 1961. A hearing on the 
plaintiffs* motion for preliminary injunction was set for 
July 10, 1961, That hearing was continued because of the 
illness of an Assistant Attornay General of Mississippi.
The hearing ^es reset for August 7, l$6l.
(R-812)

Meanwhile, an Amended Complaint was filed on 
July 17, 1961. The hearing set for August 7, 1961 was 
confined to the argument of motions to dismiss, motions to 
dissolve the three-judge court, motions to abstain, motions 
for more definite statements, motions tc require the plain­
tiffs to furnish security for costs, and to the plaintiffs* 
insistence upon a hearing of their motion for preliminary 
injunction. By order entered on that date, August 7> 19^1, 
the court allowed the Amended Complaint which had been filed 
July 17, 196I; allowed the plaintiffs to join as an addi­
tional party defendant the Jackson Municipal Airport Autho­
rity; provided for service upon that party and for the filing 
of any motions and answers on its behalf; denied the motions 
to dismiss for lack of indispensable parties; denied, on 
conditions immediately met, the motions for more definite 
statements and the motions to require the plaintiffs to 
furnish security for costs; and carried with the case for 
later disposition the other motions to dismiss, the motions



669
(R-812)
to dissolve the three-judge court, and the motions to abstain.

Over the plaintiffs1 objection, their request to
be heard on their motion for preliminary injunction was de-2/
nied "in view of the broadening of the issues by the

2/ Paragraph 15 of tie complaint was amended so as to 
make specific reference to the disorderly conduct and 
breach of rhe peace statutes. Secs, 2087.5, 208?.7 and 
2089.5 cf the Mississippi Code Annotated (19^2), as 
among those under color of which the defendants pursued 
a policy, practice, custom and usage of segregating 
Negro and white passengers.

Mended Complaint filed on July 17, 1961, and of the bringing 
in on this date of a new party defendant," and the hearing 
of the motion for preliminary injunction was passed until 
September 25, 1961. It wa3 further ordered that on that 
date the court would hear the case, both on said motion and 
on the prayer for permanent relief.
(R-813)The court stated its intention finally to dispose of the 
case following the hearing set for September 25, 1961.

On September 25, 1961, over certain objections 
noted in the transcript of testimony, the court did proceed 
with the hearing of the case both on the motion for prelimi­
nary injunction and on the prayer for permanent relief. The 
taking of testimony consumed three days —  Monday, Tuesday 
and Wednesday, September 25, 26 and 27. On Thursday, Septem­
ber 28, oral arguments of counsel were heard, and a further 
exhibit of the plaintiffs (No.. 36) was received. The defen- 
dant Greyhound Corporation was permitted to take the deposi-



6?0
(R-813)
ticn of A. W. Wilson, which was filed on October 10, 1961.
The testimony has now been transcribed and was filed on 
October 20, 1961, and additional briefs have been filed by 
the parties and by the amicus curiae, the United States of 
America.

The evidentiary disputes are not very material.
The formal allegations of the complaint, the Identity and 
residence of the plaintiffs, their use of the transportation 
facilities in question, the identification of the carrier 
defendants, their use of the busses, cars, terminals, depots, 
rest rooms, drinking fountains, etc., were all either ad­
mitted or established by undisputed evidence. Continental 
Southern and Greyhound admitted that in their Jackson termi­
nals or depots there are signs on the outside doors of one 
waiting room which read; "COLORED WAITING ROOM —  INTRASTATE 
PASSENGERS," and signs on the outside doors of another 
waiting room which read; "WHITE WAITING ROOM —  INTRASTATE 
PASSENGERS," and on the sidewalks outside the respective 
waiting rooms are signs which read: "WAITING ROOM FOR 
COLORED ONLY —  BY ORDER POLICE DEPT," and "WAITING ROOM 
FOR WHITE ONLY —  BY ORDER POLICE DEPT." Each bus company 
claimed that it did not place the signs on the sidewalks, 
and that the signs on or over the doors were placed "pursuant 
to the provisions of Chapter 258# Laws of 1958, Regular 
Session of Mississippi Legislature."
(R-814)
The bus companies further admitted that similar signs on or



671
(R-8l4)
over the doors appear on waiting rooms in all terminals or 
depots in the State of Mississippi.

Illinois Central admitted that in its railroad 
terminal or depot in Jackson it maintains two separate wait­
ing rooms, on the sidewalk outside of one of which are signs 
reading respectively: "WAITING ROOM FOR COLORED ONLY, BY 
ORDER POLICE DEPT." and "WAITING ROOM FOR WHITE ONLY, BY 
ORDER POLICE DEPT.," and that similar signs are located in 
the railroad terminal at the bottom of the stairs leading 
from the trains.

The Chief of Police of Jackson in his testimony 
admitted that the signs on the sidewalk were placed by the 
Police Department pursuant to the City segregation ordinance.

Both the two Bus Companies and the Railroad denied 
enforcing segregation on busses or cars.

The Jackson City Lines admitted that, pursuant to 
State law, it maintains signs on its busses directing that 
Negroes and whites sit in separate parts, and that, when those 
directions are not observed and a "breach of the peace is 
imminent," It has a policy of stopping the bus and pro­
ceeding no further.

The Jackson Municipal Airport Authority admitted 
segregation of the rest rooms and drinking fountains in its 
waiting rooms. Cicero Carr, the lessee of the restaurant at 
the Airport, admitted that he would not serve Negroes in the 
main dining room, but would serve them on a back counter in 
a room partially used for storage.



672

(R-814)
The Mayor of the City of Jackson, the chief law 

enforcement official of the City, and the State Attorney 
General were questioned on their racial policy with respect 
to public transportation facilities. The majority ruled that 
such testimony was inadmissible, and I dissented.
(R-815)

The testimony was admitted under Rule 4j(c) of 
of Civil Procedure

the Federal Rules/ as a speciTTc offer of evidence. The 
statement of the Mayor is so pertinent it should be quoted 
at length. (The ordinance under discussion in his testimony 
is the City ordinance requiring the segregation of transpor­
tation facilities.)

"Q. . . . State your understanding of the racial policy
of the City of Jackson with respect to transporta­
tion facilities in the City of Jackson.

!,A ......... It has been the policy of mine as chief
law enforcement officer, and the members of the 
city council and the police department and of the 
people of Jackson, to maintain what has worked 
over the last hundred years to bring happiness 
and peace and prosperity to everyone within our 
city. That has been done by a separation of the 
races, not segregation. We never refer to it as 
segregation. Row, of course, you know and I know 
the State law upon which the City ordinance was 
patterned in 1956, with the preamble put in as 
ours, shewing why —  to maintain peace and order



673
(R-815)

and to keep down disturbances. Since I have been 
Mayor I do not recall one incident where there has 
been an arrest under this ordinance or any segre­
gation ordinance. We have at all times tried to 
maintain peace and keep down disturbances. That 
is the policy. Our policy calls for a great deal 
of give and take. It is agreeable to both the 
white and the colored. . . . .  So you see that 
laws can come and laws can go and laws can be 
changed, but the policy adopted here is to main­
tain happiness and contentment between the races, 
within the law, and at the same time giving the 
benefit of the great advantage over the years of 
living together in peace and quiet.

"Q. Does this ordinance accurately reflect this policy, 
in effect, which you have just stated?
• • o •

"A. I think so. . . . However, as Your Honors have
read it, you read the last paragraph there, it 
says, 'The Council of the said City of Jackson 
owes the duty to its citizens, regardless of 
race, color, creed or station in life, to main­
tain good order and to prevent breaches of the 
peace, and thereby to promote the health and 
general welfare of all its citizens,* and then 
of course we adopted the State ordinance in this.

"Q. ! ! ! ! Does the body of the ordinance, apart



674
(r -815)

from the preamble, reflect the policy of the 
City of Jackson as you have stated it?

"A. The policy of the City of Jackson is certainly
adopted in the ordinance, which is based on State 
law, that is taken from State law, and is based 
on exactly what I have said, the matter of sepa­
ration of the races,"

(R-816)
The State Attorney General testified on direct examination 
that it was bis duty to enforce all of the laws in the State. 
He was extremely evasive on answering whether the State segre 
gation laws affected his duty as Attorney Generals however, 
he did say that they were laws of the State, that they had 
not been declared unconstitutional, and that he would enforce 
them "if conditions arise to such a point that I thought it 
was necessary to bring them into effect." He said in a con­
cluding statement:

"My sole purpose since the beginning of these insti­
gated troubles that were instigated outside our 
State and brought to our State, has beer the preserva­
tion of peace and order within the borders of the 
State of Mississippi, I have undertaken that, along 
with all other public officials and law enforcement 
officers of this State."

Part of such undertakings were meetings prior to and just 
after the arrival of the first group of Freedom Riders on 
May 24, 1961, attended by himself, the Mayor and Chief of



675
(R-8l6)
Police of Jackson. Plans were discussed at these meetings 
for dealing with the Freedom Riders. On this point he testi­
fied:

"Q. Did you discuss with the Chief of Police what 
steps he was going to take to preserve law and 
order?

"A. Yes, we discussed plans.
"Q. What were those plans?
"A. The plan was to do exactly what they did, first 

of all to keep down riot and disorder, and these 
arrests necessarily followed- They could have 
been easily avoided had your clients only wanted 
them avoided, . .

The Attorney General is not responsible for the enforcement 
of state law in the local courts: he is, nevertheless, the 
chief policymaker of 3tate law enforcement.

The plaintiffs offered evidence of the arrests for 
breach of the peace of passengers on the defendant carriers. 
There is evidence of two incidents on the busses of the Jack- 
son City Lines, (in fact, the records of the City Lines con­
tain reports on only two incidents.) Plaintiff Bailey testi­
fied to the arrest of one Charles Patterson, a Negro, for re- 
(R-817)
fusing to move when a white man got on the bus and sat down 
next to him. Witness Doris Grayson testified to the arrest 
°f herself and three companions who got on a City Lines bus 
iu the center of the City and sat in a front seat. The bus



676
(R-817)
was stopped for 10 minutes before a policeman came along.
In neither instance is there any evidence in the record of 
an actual or threatened breach of the peace. The driver 
in the Grayson Incident testified:

"Q. Were there any white persons cn the bus?
"A. Yes.
"Q. At the time these four Negroes were on the bus?
"A. Yes.
"Q. Was there any disturbance on the bus?
nA. Wot a bit.
"0,. Was there any disturbance outside the bus?
"A. No, not any.

The record also includes evidence cn the arrests of 
approximately 300 Freedom Riders in the terminals of the 
defendant interstate carriers. Captain Ray of the Jackson 
Police Department, who personally made the majority, if not 
all, of the arrests, testified as follows with respect to 
the activities of the Negroes arrested in the white waiting 
room of the Illinois Central Railroad: in

"Q. What were the Negroes doing that you arrested/there?
"A. They came in the terminal.
"Q. What did they do?
"A. They came in and some of them had seats and some 

of them stood.
"Q. What else did they do?
"A. That is about all.
"Q. Were they armed?



(R~8l7)
"A. I never found any of them armed. 
"Q. Were they loud?
"A. No.
11Q. Did they use any curse words?
"A. No.
"Q. Did they strike anybody?
"A. No.
"Q. Did they threaten anybody?
"A. No.

6?7

"Q. Did you arrest them?
"A. I sure did.
"Q. For what?
"A. Because their presence provoked people and caused 

them to become disturbed,, and I felt it best to 
maintain law and order and to order them to leave 
there. When they refused to obey my order, they 
were arrested.

"Q. Would you explain what you mean by 'their presence 
there provoked people'?

(R-818)
"A. Well, as I stated earlier, we had advance notice 

that they were coming to Jackson to create an 
incident similar to what has happened in other 
cities, and my duty there was to maintain law and 
order, and I felt it best to get the root of the 
trouble out of there, and that is when I ordered 
them to leave.



678

(2-818)
"Q, What did. they do in violation of law and order?
"A. When I ordered them to leave, they just stood

there, as though they hadn’t heard me say a word.
I repeated that order several times, and they 
refused to obey, and that is when I arrested them." 

He testified that all the other arrests in the waiting rooms 
of the remaining depots were virtually identical.

The testimony with respect to the circumstances 
surrounding the arrests is equally explicit. Chief of Police 
Rayfisld was questioned on the existence of crowds of people 
around ary of the terminals when a group of Riders arrived 
and were arrested. He testified that there were two such 
occasions, one on the first arrival at the Trailways terminal 
on May 24 when he was present, and another when the first 
group cams to the Illinois Central terminal, of which he had 
a report. At the Trailways terminal, he testified that a 
number of people were waiting in cars and others congregated 
outside the terminal. To his knowledge none of them were 
fighting, loud or armed; their attitude, however, he termed 
hostile. The ones not in cars were asked to disperse, and 
they did. At the Illinois Central terminal, Rayfield had 
reports that 10 or 15 people were milling about in the street 
exhibiting a hostile and disturbed attitude. They were asked 
to move, they complied and were gone by the time the Riders 
arrived. He then testified:

"Q. Did you receive any other reports from your 
police officers of this nature?



679
(R-818)

"A, That's the only two.
"Q. The only two reports you know about^
!IA. The only two I received where there could have 

been any situation like you were just discussing. 
Now, the others I don't recall that there has 
been any other trouble around any of the terminals." 

Captain Ray testified that the events within the terminal were 
roughly similar for all the arrests: Before the arrival of a 
(R-819)
group, people inside the terminal would make remarks, none of 
which particularly threatened violence. If necessary, he 
would order all those who did not have tickets or some busi­
ness in the terminal to leavej they always complied. When 
the group arrived, some remarks were made, people in the 
terminal would follow them around, but no acts of violence 
ever took place. Captain Ray ventured the opinion that there 
might have been incidents of violence had he not arrested 
the Riders, but there is no indication that the situation 
could not have been handled by restraining or arresting the 
offending party.

This is the extent of the evidence in the record on 
potential breaches of the peace.

This action was brought by three Negro plaintiffs 
from the City of Jackson as a class action, on behalf of them­
selves and other Negroes similarly situated, under the Civil 
Rights Act, 42 U.S.C. p.1983, which creates an equitable 
cause of action against



680

(R—819)
"Every person who, under color of any statute, 
ordinance, regulation, custom, or usage, or any 
State or Territory, subjects, or causes to be sub­
jected, any citizen of the United States, or other 
person within the jurisdiction thereof to the depri­
vation of any rights, privileges, or immunities 
secured by the Constitution and laws . . .

The jurisdiction of the three-judge court is invoked pursuant 
to 28 U. S„C„ p.2281, p.2234 because the constitutionality of 
state statutes has been attacked. The statutes attacked are 
the so-called segregation statutes of the State of Mississip­
pi which require racial segregation in all common carriers 
and in waiting room and rest room facilities used by the 
carriers, and provide criminal penalties for carriers and

Vpersons refusing to abide by these laws.

Title 11, Sections 2351,These statutes are: n w c  j.j., .
1 5, 2351.7, and Title 28, Sections 7784, 778"

7786, 7786-01, 7787, 7787.5, Miss. Code Ann. (1942).

(R-820)
The defendants attacked the jurisdiction of the 

three-judge court on the ground that these statutes have 
never been enforced and no arrests have been made under 
their provisions. Under the recent case of Poe v, Oilmant 
1961, 367 U. S, 497, the complete failure to enforce a 
state law, coupled with its open and notorious violation, 
prevents the federal courts from reaching the constitutional­
ity of the statute since no case or controversy is presented.



681
(R-820)
If such were the case here, the three-judge court would not 
have jurisdiction. The evidence shows, however, that the 
defendant carriers and the Jackson police maintain signs 
pursuant to the command of these statutes. This is suffi­
cient evidence of enforcement to create a case or contro­
versy and maintain the jurisdiction of the three-judge court.

In the alternative, the defendants argue that juris­
diction over the segregation statutes may not extend to 
the collateral problem of enforcement of segregation by 
means of the breach of the peace statutes on the grounds:
(1 ) there is no authority under p.2284, and (2 ) the court 
may not consider issues of fact. The concept of federal 
jurisdiction is by no means this narrow. In Sterling v. 
Constantin. 1952, 287 U.S. 578, the jurisdiction of the 
three-judge court, originally invoked to test a state statute 
limiting oil production, extended to the Governor of Okla­
homa's attempt to institute the same production limitations 
by fiat under martial law. The three-judge court made ex­
tensive findings and concluded: "The evidence shows no in­
surrection nor riot, in fact, existing at any time in the 
territory, no closure of the courts, no failure of civil 
authorities." On this basis, the court held that the invo­
cation of martial law was invalid and that the military orders 
enforcing the production limitations were a denial of due 
Process. The Supreme Court upheld the district court and
(R-821)
specifically approved the extensive findings of fact:



68 2
(R-821)

"Accordingly, it has been decided in a great variety 
of circumstances that when questions of law and fact 
are so intermingled as to make it necessary, in order 
to pass upon the federal question, the court; may, 
and should, analyze the facts," (287 U.S. at p. 398.) 

The Court went on to say that the jurisdiction of the three- 
judge court

" . . .  extends to every question involved, whether 
of state or federal law, and enables the court to 
rest its judgment on the decisions of such of the 
questions as in its opinion effectively dispose of 
the case." (287 U.S. at pp. 393-94.)

See also, H u m  v. Pursier. 1933, 289 U. S. 238; Florida Lime 
Growers v. Jacobsen, i960, 362 U.S. 73 J Evers v, Dwyer.
1958, 358 U.S. 202.

The City of Jackson, its Mayor, Commissioners and 
Chief of Police urge that rhe City cannot be sued in this 
action. They rely upon Monroe v. Pane. 1961, 365 U.S. 167, 
191 n. 50, and Egan v. City of Aurora., 1961, 365 U.S. 514.
The question is also relevant to relief against the Jackson 
Airport Authority.

The direct holding in Monroe v. Pane is that a 
municipal corporation is not a "person" within the meaning 
of Section 1983 for the purpose ofJholding it liable for 
damages, and is based upon the finding that Congress re­
jected an amendment which would have made such corporations 
liable for money damages in specific cases. 385 U.S. at 188.



683
(R-821)
The defendants argue that if the City is not a "person" for 
purposes of damages, it cannot he a "person" for purposes 
of an injunction, and further argue that the Supreme Court 
specifically so held in footnote 50 of Monroe v. Pape, supra 
at p. 191, when it said:

"In a few cases in which equitable relief has been 
sought, a municipality has been named, along with 
city officials, as defendant where violations of 
42 U.S.C. p,1983 were alleged. See, e.g.» Douglas v. 
City of Jeannette, 319 U.S. 157; Holmes v. City of 
Atlanta, 350 U.S, 879. The question dealt with in 
our opinion was not raised in those cases, either by 
the parties or by the Court, Since we hold a 

(R-822)
municipal corporation is not a 'person' within the 
meaning of P-I983, no inference to the contrary can 
any longer be drawn from those cases,"

The question of whether a municipality could be sued under 
P .2983 for equitable relief, however, was not before the 
Court, and I do not believe that the Court intended in a 
footnote to overrule prior cases Indicating that a municipal 
corporation could be so sued. See Douglas v, Jeannette, 
supraj Holmes v. City of Atlanta, supra; Mayor and City 
Council of Baltimore City v, Dawson, 350 U.S. 877, affirming 
220 F, 2d 386 (4 Cir.j 1955). This is especially true when 
the legislative history upon which the Court relies is 
directed solely to the question of damages. We are not here



684
(R-822)
concerned with the question of tortious action and the lia­
bility of the City taxpayers for such actions over which they 
had little possible control. The question here is one of 
prospective equitable relief for the protection of the plain­
tiffs1 constitutional rights against not just the tortious 
activity of individuals, but the enforcement of City ordi­
nances, officially declaring City policy, and officially 
recorded on the City Journal. This same issue has been be­
fore the Seventh Circuit Court of Appeals since Monroe v.
Papea and that Court held:

"None of the reasons which support a city‘ 3 immunity 
from an action for danages for tortious injuries 
already inflicted by its officers, agents or servants 
applies to this case. No reason is apparent why a 
city and its officials should not be restrained 
from prospectively violating plaintiffs' constitu­
tional rights pursuant to its own legislative enact­
ment, and an injunction not be granted as provided 
in p.1983."

Mams v. City of Perk Ridge, 7 Cir., 1961, 293 F.2d 585, 587. 
For these reasons, I believe that footnote 50 in Monroe v. 
Pape may be construed to say that, whether or not a munici­
pal corporation is subject to equitable relief under p.1983, 
no inference from cases indicating that it may is relevant 
to the issue of its liability for damages.
(R-823) More fundamentally, however, the plaintiffs * right



685
(R-823)
of action against the City does not depend alone upon p.1933. 
The rights asserted here are based on the Constitution which 
itself creates the cause of action for equitable relief and, 
within the meaning of 28 U.S.C. p. 1345(3) (the jurisdictional 
provision upon which this suit is based), authorises this 
suit. Cf. Bell v. Hood. 1946, 527 U. S. 678; Brewer v. Hoxie 
School District No. 46, 8 Cir., 1956, 258 P.2d 91, 105;
Hart & Wechsler, The Federal Courts And The Federal System 
794-97 (1953). Doctrines of immunity can have no application 
to suits in equity brought to restrain invasions of federal 
constitutional rights. Sterling v, Constantin, 1952, 287 U. S. 
378, 593; Ex parte Young, 1908, 209 U.S. 155# 156; Graves v, 
Texas Company. 1936, 298 U.S. 393# 403-04; Georgia RR v. 
Redwine. 1952, 342 U.S. 299# 305 n. 17.

I would hold that the City of Jackson and the Jack- 
son Airport Authority are proper parties.

All motions attacking this court's jurisdiction 
should be overruled.

Nor should this court abstain from considering the 
merits. The court may not rely on Harrison v. N.A.A.C.P,, 
1959# 360 U.S. 167, which approves abstention where the state 
law attacked might be construed by the state courts to 
avoid the constitutional question, since the segregation 
statutes are incapable of a valid construction. No authority 
whatsoever may be found for the proposition that, where a 
state statute is clearly and unavoidably unconstitutional 
on its face, comity requires that state courts be allowed the



686
(R-823)
privilege of so declaring. Such a rule would be, not ab­
stention, but abdication of our judicial function. Nor may 
this court rely on Douglas v. Jeannette, 1943, 319 U.S. 157* 
which held that federal courts, as a natter of comity and 
equitable discretion, should not interfere with state crimi­
nal proceedings and law enforcement officials when an ade­
quate remedy is provided in the state proceedings for the 
(R-824)
protection and assertion of all constitutional rights. The 
primary requirement of Douglas v. Jeannette is that there be 
an adequate state remedy! that is not the case here. An ex­
ception to Jeannette has developed in favor c-f class actions 
on behalf of Negroes combating state supported segregation. 
As stated by the Court of Appeals in Morrison v. Davis,
5 Cir., 1958, 252 F.2d 102, 103:

"This is not such a case as requires the withholding 
of federal court action for reason of comity, since for 
the protection of civil rights of the kind asserted 
Congress has created a separate and distinct federal 
cause of action. 42 U.S.C.A.. p.1983. 'Whatever may be 
the rule as to other threatened prosecutions, the 
Supreme Court in a case presenting an identical factual 
issue affirmed the judgment of the trial court in the 
Browder case (Browder v. Gayle, D.C. Ala., 142 P.Supp. 
707, aff’d 352 U.S. 903) in which the same contention 
was advanced. To the extent that this is inconsistent 
with Douglas v. City of Jeannette, Pa., 319 U.S. 157*



687
(R-824)

63 S.Ct. 877* 87 L.Ed. 1324, we must consider the
earlier case modified,"

Actually, this is not so much an exception as a practical 
application of the Jeanette requirement of "adequacy." For 
the alternative to this suit is that a great number of indi­
vidual Negroes would have to raise and protect their consti­
tutional rights through the myriad procedure of local police 
courts, county courts and state appellate courts, with little 
prospect of relief before they reach the United States 
Supreme Court. That Court already has a heavy docket with­
out numerous such cases. Moreover, the proof of segregation 
may not be a straightforward proposition. As in the case 
here, the true nature of state policy and practice may be­
come apparent only after proof of a pattern and practice 
over an extended period of time. Such a record can only be 
prepared in a single suit which finally settles the issue 
once and for all. The some 300 citizens arrested in Jackson 
since May cannot be expected to provide at their trials a 
record similar to the one in this case; and yet, without it, 
there may be no way for them to assert and protect their con­
stitutional rights. All these

X -5f *

(The following letter is an explanation of a correction 
on Record Page No. 826.)



(R-825)

688

UNITED STATES COURT OF APPEALS 
Fifth Judicial Circuit

Richard C. Rives
Judge ^

Montgomery 2, Alabama November 30# 19ol
(Filed -Dec. 1, 1961)

Miss Loryce E. Wharton, Clerk 
United States District Court 
Southern District of Mississippi 
Jackson, Mississippi

Re: Samuel Bailey, et el. v. Patterson, et al.
Civil Action No. 3133.

Dear Miss Wharton:

We have been advised that there is a technical error in 
Judge Rives’ dissenting opinion in the above case. At 
page 15, line 12, of the typed opinion which we submitted, 
"de novo circuit court trial11 should read ,!de novo county 
court trial." Will you please make this change wherever 
necessary.

Sincerely yours,

/s/ Feter R. Taft
Peter R. Taft
Law Clerk to Judge Rives.

PRT/ef

cc: Honorable Sidney C, Mize
Honorable Claude F. Clayton

* *



689
(r-826)
factors go to the "adequacy" of the breach of the peace 
criminal proceedings and weigh against it. Equally important 
under the circumstances of this case is that, for some of the 
reasons above, Negro citizens in Mississippi will not even 
attempt to exercise their constitutional rights because their 
state remedies possibly "adequate in theory" are wholly in­
adequate in practice.

Another factor bearing on the adequacy of the state 
criminal proceedings is that the Freedom Riders arrested in 
this case were travelers in interstate commerce. For such 
travelers to be delayed by arrest and trial, to be required 
to return for a de novo circuit court trial, and perhaps 
again for an appeal, is an unreasonable burden on interstate 
commerce when their only crime is the assertion of undisputed 
statutory and constitutional rights. This burden makes the 
state criminal proceedings wholly inadequate as an alterns-, 
tive to the present suit.

Any further doubts as to the validity of the dis­
tinction drawn in Morrison v. Davis j or the refutation of 
Douglas v. Jeannettet are put to rest by considering the 
bearing of the Fourteenth Amendment and 42 U.S. C.A. p . 1983 
on the duty of this court. The Supreme Court had an oppor­
tunity to pass on the basic thrust and purpose of the Four­
teenth Amendment soon after it was adopted. In the Slaughter 
-House Cases. l8?2, 83 U.S. 36, 71-72, the Court saidj

"We repeat, then, in tho light of this recapitula­
tion of events, almost too recent to be called history,



690

(R-826)
bat which are familiar to us all; and on the most 
casual examination of the language of these amendments, 
no one can fail to be impressed with the one pervading 
purpose found in them all, lying at the foundation of 
each, and without which none of them would have been 
even suggested; we mean the freedom of the slave race, 
the security and firm establishment of that freedom, 
and the protection of the newly-made freemen and citi­
zen from the oppressions of those who had formerly 
exercised unlimited dominion over him. It is true that 
only the fifteenth amendment, in terms, mentions the 
negro by speaking of his color and his slavery. But 
it is just as true that each of the other articles was 
addressed to the grievances of that race, and designed 
to remedy them as the fifteenth.

(R-827) "We do not say that no one else but tne negro can 
share in this protection. ,■ . . But what we do say, 
and what we wish to be understood is, that in any 
fair and just construction cf any section or phrase 
of these amendments, it is necessary to look to the 
purpose which we have said was the pervading spirit 
of them all, the evil which they were designed to 
remedy . . . ."

The last section of the Fourteenth Amendment provides that 
"The Congress shall have power to enforce, by appropriate 
legislation, the provisions of this article." Such legisla-



691
(R-027)
tlon was already on the hooks when the Slaughter-House Cases 
were decided, and the very section under which the plaintiffs 
have brought this suit, 42 U.S.C.A, p.1983, may be traced 
to section 1979 of the Revised Statutes and section 1 of the 
Ku KLux Act of April 20, 1871, 17 Stat. 13. This section 
was recently before the Supreme Court in Monroe v. Pane, 
supra* where the Court discussed in detail its legislative 
history and purposes. As with the Fourteenth Amendment, 
this section was passed by Congress to secure the newly-won 
freedom of the Negro population in the South; it was intended 
to deal more specifically, however, with the securing of 
these rights in an atmosphere of violence caused by the un­
leashing of passions and prejudices which the mere assertion 
of these rights engendered in a portion of the white popula­
tion, The Congressional solution was to create a remedy 
through the federal courts. The Court states;

"The debates are long and extensive. It is 
abundantly clear that one reason the legislation 
was passed was to afford a federal right in federal 
courts because, by reason of prejudice, passion, 
neglect, intolerance or otherwise, state laws might 
not be enforced and the claims of citizens to the 
enjoyment of rights, privileges, and immunities 
guaranteed by the Fourteenth Amendment might be 
denied by the state agencies." (365 U.S. at 180.)

Mr. Justice Frankfurter adds to this in his separate opinion



692
(R-827)
what might he called the substantive right to the exercise of 
federal jurisdiction:

" . . .  the theory that the Reconstruction Congress 
could not have meant p.1979 principally as a ’juris­
dictional* provision granting access to an original 

(R-828)
federal forum in lieu of the slower, more costly, 
more hazardous route of federal appeal from fact­
finding state courts, forgets how important providing 
a federal trial court was among the several purposes 
of the Eu KLux Act . . . .  Section 1979 does create 
a * substantive * right to relief. But this dees not 
negative the fact that a powerful impulse behind 
the creation of this 1 substantive; right was the 
purpose that it be available in, and be shaped 
through, original federal tribunals." (>65 U.S. at 
251-52.)

Not only is it apparent that the purpose of these provisions 
is to protect the very kind cf rights the plaintiffs assert, 
but the legislative history of section 1983 makes clear that 
the greater the danger of violence, the more important it is 
that the federal courts should accept and exercise jurisdic­
tion. Thus, the major portion of the defense of the City of 
Jackson and of the Attorney General of Mississippi, attempting 
to justify their actions because of the danger of violence, 
actually provides the most powerful argument for this court 
to exercise its jurisdiction and grant a federal remedy to



695
(R-828)
protect the plaintiffs* rights.

The majority takes the position that the major 
issue in this case is the questionable use of the breach of 
the peace statutes, and that under the Harrison case we 
should abstain to allow the state courts to construe them.
The plaintiffs* attack, however, is upon the segregation 
statutes, not the breach of the peace statutes, and they 
allege that the State is practicing the simplest of all eva­
sions —  it makes arrests under the breach of the peace 
statutes for violations of the segregation statutes. If 
there is substance to this allegation, it would be a fraud 
upon the jurisdiction of this court to abstain and give re­
cognition to such an evasion. When the constitutionality of 
a state statute is attacked, we are under a duty to inquire 
into the law as it is actually applied. In Poe v. Oilman, 
supra „ such an inquiry demonstrated that there was no case 
or controversy. In an earlier case, Nashville, C. & St.
L. Ry. Co. v. Browning, 19^0, 510 U. S. 562, such an inquiry 
uncovered a valid administrative amendment to a tax-assessing 
statute and the alleged discrimination was found to be a

ii/valid distinction.
(R-8221__________ _____ - - -_____________

V  "Here, according to petitioner's own claim, all 
the organs of the state are conforming to a practice, 
systematic, unbroken for more than forty years, and 
now questioned for the first time. It would be a 
narrow conception of jurisprudence to confine the 
notion of ’laws' to what is found written on the 
statute books, and to disregard the gloss which life 
has written upon it. Settled state practice cannot



(R-829) 694

supplant constitutional guarantees, but it can estab­
lish what is state law. The Equal Protection Clause 
did not write an empty formalism into the Constitution. 
Deeply embedded traditional ways of carrying out state 
policy, such as those of which petitioner complains, 
are often tougher and truer law than the dead words 
of the written text." Nashville, C.& St. L. Ry. Co. 
v. Browning, 1940, 310 U. 3. 362, 369,

In Sterling v. Constantin, supra, the inquiry uncovered the 
evasion of the Governor of Oklahoma. As a later Supreme Court 
case interpreted Sterling v. Constantin,

"There martial law was employed in support of an order 
of the Texas Railroad Commission limiting production 
of oil in the East Texas field. The Governor was 
sought to be restrained as part of the main objective 
to enjoin’the execution of an order made by an admin­
istrative , . . commission,’ and as such was indubitably

5/within p.266 (now p.2284)."

,5/ Phillips v. United States, 1941, 312 U.S. 246, 253.

In this case, under the facts shown after a full trial and 
the law applicable to these facts, I am unable to find a bona 
fide breach of the peace issue. Rather, the facts clearly 
show that the arrests are a simple evasion to enforce segre­
gation. This evasion provides no ground for abstention.

6/ See also Evers v, Dwyer, 1958, 358 U.S. 202, where 
the Court ordered a three-judge court, whose jurisdic­
tion was invoked to enjoin Tennessee transportation 
statutes requiring segregation, to hear that and any



695
(R-829)

other method of state-enforced segregation on Memphis 
transportation facilities."

The Court has continually struck down state- 
enforced schemes of segregation, whether they were done 
directly or "ingeniously or ingenuously." Cooper v. 
Aaron, 1958, 358 U.S. 1, 17; Smith v. Texas, 1940, 311 
U.S. 128, 132; Lane v. Wilson, 1939* 307 U.S. 268, 275; 
see Bush v. Orleans Parish School Board, E.D.La., 194 
pT~Supp„ 182, aff:d sub nom, Gremillion v. United States, 
30 L.W. 3120 (Sup.Ct. 1961). It is not uncommon for 
the states to attempt to enforce segregation through 
general police power statutes. Boynton v. Virginia, 

(B-830)I960, 364 U.S. 454 (trespass); Boron v. Birmingham 
Transit Co., 5 Cir., 1980, 2o0 P.2d 531 (breach of 
the peace).

The statutes and ordinances which on their face 
require the segregation of the races in any transportation 
facility should be declared unconstitutional, null, and void. 
Brown v. Board of Education, 1954, 34? U.S. 483; Browder„v.- 
Gayle , M.D. Ala., 142 P.Supp. 707, aff'd 352 U.S. 903 (1954); 
Baldwin v. Morgan. 5 Cir., 1958, 251 P.2d 78O; Bpman_y,__ 
Birmingham Transit Co., 5 Cir., i960? 280 P.2d 531.

It should be declared impermissible to use laws 
which purport to deal with the maintenance of law and order, 
or any ether laws, to maintain segregation of the races in 
any transportation facility. To that end, it should be 
declared that no passenger or Intended passenger is subject 
to arrest for disorderly conduct or breach of the peace 
unless the passenger is himself disorderly or does something 
more than to occupy some facility or piece intended for use 
by persons of another race and to refuse to remove himself 
from such place or facility. To arrest a passenger under



696

(R-830)
such circumstances Is state-enforced segregation and there­
fore unconstitutional.

The defendants argue strongly on this last point 
that the State has merely been assorting its rights under 
the police power to maintain law and order. The evidence 
clearly shows, however, that none of the passengers arrested 
was ever himself disorderly. This poses the question of 
whether a passenger, whose only crime is tho exercise of an 
undisputed constitutional right, may he arrested because 
this exercise provokes others to threaten or actually commit 
disorderly acts. That this Is the substance of the defen­
dants 1 position is clearly inferred from the facts to which 
they themselves testified —  the signs on the sidewalk 
outside the waiting rooms pursuant to the segregation ordi­
nance, the arrest of all those who attempted to "crack the
(^831 jlaws" of Mississippi (to use the words of the State Attorney 
General), and the complete lack of disorderly conduct on the 
passengerTs part at the time of arrest. This inference is 
made solicit, however, by the testimony of the Mayor, who 
states that, by definition, anyone who attempts to test the 
"separation of the races" creates a breach of the peace and 
provokes disorder.

This issue must be met head on for the evidence 
shows that on at least two occasions there was a danger of 
riots and disorder. Although past disorder does not concern 
us as far as a prospective Injunction is concerned, there is



697
(R-831)
a strong possibility that a similar situation would arise 
after an injunction did go into effect.

The issue is decided by again returning to the 
basis of this suit, the Fourteenth Amendment and section 1985. 
The Amendment was adopted and this section passed soon after 
the completion of the Civil War. A glance at the legislative 
h1s tory of section 1985* cited in Monroe v. Pane, supra, 
demonstrates that Congress had before it extensive evidence 
of the violence caused in the South by the newly-won Negro 
rights. Yet, no where, either in the Amendment or in sec­
tion 1983, can there be found an intimation that either the
danger or the existence of such violence is grounds for the

granted primarily to Negroes. 
revocation of constitutional'TTghts/ father, the answer
of Congress was to provide federal jurisdiction and a
federal remedy for their protection. From this it can only
be concluded that the provocation of violence in others is
no defense to the denial of these plaintiffs1 constitutional
rights. If it were, the defendants and this court know that
this case would spell the postponement of full enjoyment of
constitutional rights by Negroes In the Deep South for many
years to come. The Supreme Court faced and decided this
issue in Cooper v. Aaron, 195S> 358 U. S. 1, 16, when it said:
(R-832)

"The constitutional rights of respondents are 
not to be sacrificed or yielded to the violence and 
disorder which have followed upon the actions of the 
Governor and Legislature. As this Court said some



698

(R-832)
41 years ago In a unanimous opinion in a case 
involving another aspect of racial segregation:
* It is urged that this proposed segregation will 
promote the public peace by preventing race con­
flicts. Desirable as this is, and important as 
is the preservation of the public peace, this aim 
cannot be accomplished by laws or ordinances which 
deny rights created or protected by the Federal 
Constitution.* Buchanan v. Warley, 245 U.S. 60, 8l.
Thus law and order are not here to be preserved by 
depriving the Negro children of their constitutional 
rights."

See also, Sterling v. Constantly 1932, 287 U.S. 378; Sellers 
v. Johnson. 8 Cir., 1947, 163 F.2d 877; Rockwell v. Morris, 
1961, 211 N.Y. S.2d 25.

A police officer would be justified in requiring 
a person to move from a transportation facility because of a 
sudden, unexpected, and extreme danger of bloodshed which 
could not be otherwise avoided. There is no evidence in this 
record, however, of such a situation having arisen. In the 
case of the incidents oh the Jackson City Lines buses, there 
is not even the intimation of potential disorder. Except for 
the two Freedom Rider arrivals where crowds gathered outside 
the transportation terminals, there is no evidence of an 
actual breach of the peace or a potential which a minimum 
of police officers could not have readily handled by arrest­
ing the individual actually creating the disorder. In the



699
(R-832)
case where the crowd surrounded the Illinois Central, it 
was easily dispersed before the Riders even arrived, putting 
it in the same situation as all the others. On May 24, the 
day of the first Rider group, although the crowd was sizable, 
and their attitude hostile, they never created an actual 
disturbance or reached proportions beyond the ability of the 
police to handle, even had the Riders been allowed to remain 
in the terminal. It should, at this point, be noted that 
the Mayor of Jackson had been notified by the Attorney 
General of the United States before the Riders' arrival that, 
if, in the Mayor's opinion, the situation could not be hand- 
(R-853)led by local authorities, he stood ready to send in Federal 
Marshals to aid the enforcement of order as had been done 
in Montgomery, Alabama. And I think it can be said with 
assurance that, if at any future time the law enforcement 
officials of Mississippi find that they cannot themselves 
handle the provocation of violence caused by the Negroes' 
exercise of their constitutional rights, the Attorney General 
of the United States would stand ready to send in Federal 
Marshals or any stronger force necessary to enforce order. 
There is no necessity to forego the exercise of rights 
guaranteed by the Constitution and laws of the United States 
in order to prevent violence on the part of persons opposed 
to the exercise of such rights. Any such surrender to mob 
rule would tremendousely encourage mob spirit. ¥e must con­
tinue to be ruled not by the mob, but by the Constitution



700

(R-833)
and laws of our Country.

It is ray opinion that a permanent injunction should 
issue against the City of Jackson, its Mayor. Commissioners 
and Chief of Police, and the Jackson Municipal Airport 
Authority to restrain them from acting contrary to the fore­
going declarations and to protect to the best of their abi­
lity the right of any passenger or intended passenger to 
exercise his constitutional rights on public transportation 
facilities.

This permanent injunction should extend to the 
State Attorney General. While he is not responsible for the 
enforcement of State laws through the local courts, and 
has prosecuted none of the arrests found in the record, he 
partook in meetings both before and after the arrival of the 
Freedom Riders on May 24, which determined the manner in 
which the situation would be, and thereafter was, handled.
As the State official primarily charged with the duty to 
enforce State law, he must be held responsible for the plans 
made at these meetings and the way in which they have been 
carried out.
(R-834) A permanent injunction should issue^against Cicero 

requiring him to serve without discrimination 
Carr/ at the Airport Restaurant all members of the public
who use and frequent the Jackson Municipal Airport and re­
quest service.

The carriers, Continental Southern Lines, Inc., 
Southern Greyhound Lines, Illinois Central Railroad, Inc.,



701

(R-824)
and Jackson City Lines, Inc., have stated that they are act­
ing under apparent compulsion of City ordinance or State 
statute in any maintenance of segregation of the races in 
their transportation facilities of which they may he guilty; 
and, that, promptly upon this court’s declaration that such 
statutes and ordinances are unconstitutional, they will re­
move all signs indicating that any place or facility is 
intended for the use of persons of any particular race and 
will not further enforce or have any part in enforcing se­
gregation of the races in any transportation facility. A 
simple declaratory judgment is therefore all that seems 
necessary as to said earlier defendants. This court should 
retain jurisdiction, however, so that further orders and 
judgments could be entered if it should thereafter be 
necessary or advisable.

In their prayer for relief, the plaintiffs ask 
that the enforcement of the segregation statutes and any 
other statutes used to enforce segregation be enjoined. They 
include in this prayer not only the restraining of future 
enforcement, but also the continued enforcement of these 
statutes against all of those arrested after the filing of 
this suit. According to the evidence, this includes some 
190 persons. The power of the court to grant this request 
is supported fully by law. In Ex parte Young, 1908, 209 
U.S. 123, the Supreme Court reaffirmed the principle that a 
court of equity could enjoin criminal proceedings commenced 
after the filing of a suit in federal court to enforce the



702

(R-834)
same right. The Court stated:
(R-835) „It is further objected . . . that a court of 

equity has no jurisdiction to enjoin criminal 
proceedings, by indictment or otherwise, under the 
state law. This, as a general rule, is true. But 
there are exceptions. When such indictment or pro­
ceeding is brought to enforce an alleged unconsti­
tutional statute, which is the subject matter of 
inquiry in a suit already pending in a Federal court, 
the latter court having first obtained jurisdiction 
over the subject matter, has the right, in both civil 
and criminal cases, to hold and maintain such juris­
diction, to the exclusion of all other courts, until 
its duty is fully performed . . . .  Where one commences 
a criminal proceeding who is already party to a suit 
then pending in a court of equity, if the criminal 
proceedings are brought to enforce the same right 
that is in issue before that court, the latter may 
enjoin such criminal proceedings.”

209 U.S. at 161-162. See also, In re Sawyer, 1888, 124 U.S. 
200, 211; Truax v. Raich. 1915, 239 U.S. 33, aff'g 219 Fed. 
273 (D. Ariz., 1915)- In terms of the anti-injunction sta­
tute, 28 U.S.C. p.2283, it is a power "in aid of our juris­
diction" to prevent state courts from interfering with the 
determination of issues properly before the federal court. 
The propriety of granting such a request, however, is dis-



703
(R-835)
cretlonary, and only the strongest equities will support 
such outright interference with state proceedings already 
commenced. Z am of the opinion that such equities exist in 
this case.

The plaintiffs have had a motion for preliminary 
in ju nction  pending since the filing of the original complaint 
on June 9, 1961, Although the plaintiffs filed an amended 
complaint on July 17 to make more explicit their attack upon 
the breach of peace arrests, the original complaint is 
broadly enough framed to include them. When a motion for 
preliminary injunction has been made, a three-judge court 
is directed by statute to give an expeditious hearing and 
decision. 28 U.S.C. p.2284(4) provides, "the application 
shall be given precedence and assigned for hearing at the 
earliest practicable day." 28 U.S.C. p.1253 provides that 
the granting or denial of this motion may be appealed di­
rectly to the Supreme Courts the appeal lies as a matter of
(R-836)
right. R.C.A. v. Uhited States, H.D. HI., 1950, 95 F.Supp.

1 •plaintiffs
660, aff*d, 341 U.S. 412 (1951). Thus, not only were the/
entitled to an early hearing and decision, but, in my
opinion, they were entitled to a preliminary injunction.
As Mr. Justice Brandeis wrote in Union Tool Co. v. Wilson.
1922, 259 U.S. 107, 112: "Legal discretion . . . does not
extend to refusal to apply well-settled principles of law

essential
to a conceded state of facts." The? Facts' in this case 
are undisputed, the law to be applied is clear, irreparable



704
(R-836)
injury is established by evidence of a clear and continued 
deprivation of constitutional rights. The defendants* 
argument that such an Injunction would have changed the 
status quo and therefore should not have been granted was 
before the Fourth Circuit Court of Appeals in a very similar 
case involving segregation of transportation facilities, and 
was decided adversely to the defendants. Henry v* Green­
ville Airport Commission* 4 Cir., i 960, 284 F.2d 6 31. The 
defendants should not be allowed to rely upon their own 
continued unconstitutional behavior for the purposes of de­
feating a motion for preliminary injunction. I would follow 
the ruling in the Henry case* See also Clemons v. Board of 
Education. 6 Cir., 1956, 228 F.2d 853, 857; Board of Super­
visors v. Wilson. 340 U.S. 909, affirming 92 F.Supp. 986 

(ELD.La., 1950) (preliminary injunction granting admission 
to L.S.TJ.). Had such an Injunction issued, arrests and 
prosecution of those arrested would have been terminated, 
starting at the very latest with the date of the first hear­
ing, July 10, 1961.

The continued refusal to rule on this motion, al­
though it has been pending since the 9th of June, is

court1s
in violation of this/ duty under the law, and the refusal 
should therefore be construed as a de facto denial. The 
reason for continuing the first hearing until August 8,
1961, due to the sickness of an A ssistant M ississip p i 
Attorney General, may have been warranted with respect to 
re lie f against his superior, but the City was present and,



705
(R-837)
as subsequent events have shown, i t  was both w illin g  and 
able to carry on a vigorous defense in  it s  own behalf.

Thus, because o f the undisputed fa cts, the clear 
vio latio n  of the p la in tiffs*  r ig h ts , and the unreasonable 
delay in  ru lin g  on the prelim inary in junction , a ll prosecu­
tions o f passengers or intended passengers who were arrested 
for breach of the peace a fte r the f ilin g  of the o rig in a l 
complaint on June 9# 1961# but who, as the evidence in  th is 
case shows, were not themselves d iso rd erly, should be en­
joined.

Since th is  d issenting opinion was w ritten, I  have 
had the opportunity to read the memorandum opinion of Judge 
Prank M. Johnson, J r . , in  Lew is, et a l. v. The Greyhound 
Corporation, et a l . . M, D. A la ., C.A. 1724-N, tty's, file d  
November 1 , 19 6 1, and find  m yself in  agreement with nearly 
a ll of the views expressed by Judge Johnson in  that opinion.

I  resp ectfu lly  d issent.

* * * * * *

(R-838)

O R D E R
(T it le  Omitted - F ile d  Nov. 17, 1961)

Pursuant  to the opinion of the Court file d  herein 
on November 17, 19 6 1, i t  is  now ordered by the Court that 
ju risd ictio n  of th is  action is  retained, but that a ll further



706

(R-838)
proceedings herein be stayed fo r a reasonable length of 
time fo r the p arties to repair to the State Court in  which 
such issues may be now pending, or in  any court of the state 
where any of the p arties hereto may e lect to in stitu te  an 
action fo r the adjudication of the issues.

ORDERED, th is the 17th day of November, 19 6 1.

tMIMtf T5EM& ClftCOT "J0E5E ' 

/s/ Sidney C. Mize
unii f 'M

/■/ Claude P. Clayton 
TMIf^STi&ESDlSlklC^ JQlXir

Order Book 1961 at page 5^2.
* * * *

(R-839)
NOTICE OP APPEAL

(T it le  Omitted - F ile d  Nov. 22, 19 6 1)

I
Notice is  hereby given that Samuel B a ile y, Joseph 

Broadwater and Burnet L . Jacob, p la in t iffs  above named, 
hereby appeal to the Supreme Court of the United States 
from the order entered in  th is  case on the 17th day of 
November, 19 6 1, which in  effect denies the in junction  prayed



707
(R-839)
for by retain in g ju risd ictio n  but staying a ll further pro­
ceedings herein "for a reasonable length of time for the 
parties to repair to the State Court in  which such issues 
may be now pending, or in  any court o f the State where any 
of the p arties hereto may e lect to In stitu te  an action for 
the adjudication of the Issu es."

This appeal is  taken pursuant to T it le  28, United States 

Code, Section 1255.
(R-840)

I I
The C lerk w ill please prepare a tran scrip t of the re­

cord in  th is  cause fo r transm ission to the C lerk of the 
Supreme Court of the United States and include in  said  
transcrip t the follow ing:

1 . Complaint and motion for prelim inary in junction  

file d  June 9 ,  1961.
2. Amended complaint and amended motion fo r prelim inary 

injunction file d  Ju ly  14, 1961.
5. The answer of the Attorney General of the State of

M ississip p i.
Answers of the C ity  of Jackson, M ississip p i; A llen 

C. Thompson, Mayor of the C ity  of Jackson, M ississip p i, 
Douglas L . Luckey, a Commissioner of the C ity  of Jackson, 
M iss.; Thomas B. M arshall, a Commissioner of the C ity  of 
Jackson, M iss.; W. D. R ayfie ld , Chief of Police of the C ity  

of Jackson, Miss.
5. Answer of the Continental Southern Lin es, Inc.



708

(R-840)
6. Answer of the Southern Greyhound Lin es.
7. Answer of the I llin o is  Central Railroad, In c.
8 . Answer of the Jackson C ity  Lin es, In c.
9 . Answer of the Jackson M unicipal A irport Authority,

Inc.
10. Answer of Cicero Carr.
11. Motion of the State of M ississip p i to dism iss, of 

June 50, 1961.
12. Motion of the C ity  of Jackson to dism iss of June 

50, 19 6 1 .
15. Motion of the Illin o is  Central Railroad to dism iss 

file d  Ju ly  5* 1961.
14. Transcript of hearing, Ju ly  10, 19 6 1 .
15. Order entered August 7* 1S61, follow ing hearing of 

a ll prelim inary motions.
16. Transcript of testimony of hearing on prelim inary 

and fin a l in junction , September 25* 1961 et seq., and a ll 
Exh ib its.
(R-841)

17. Motion of C ity  of Jackson to dism iss, September 

27, 1961.
18. Motion of the Illin o is  Central Railroad to dism iss, 

of September 27* 1961.
19. Order of November 17* 1961.
20. Opinion of the Court and d issenting opinion of 

November 17* 19 6 1 .
21. This Notice of Appeal.



(R-841)
709

I I I
The follow ing questions are presented by th is appeal:
1, Whether the court below, In  an action to enjoin the 

enforcement of M ississip p i statutes requiring ra c ia l segre­
gation on common ca rrie rs and in  common ca rrie r w aiting room 
and re st room fa c ilit ie s  as contrary to the Fourteenth 
Amendment to the United States Constitution, erred in  re­
fusing to issue a prelim inary in junction  enjoining the en-

1 /
forcement of sa id  statutes?

2 ,  Whether the court below erred in  refusing to enjoin 
the enforcement o f an ordinance of the C ity  of Jackson, 
M ississipp i requiring ra c ia l segregation in  common ca rrie r 
waiting room and rest room fa c ilit ie s  as contrary to the 
Fourteenth Amendment to the Constitution of the United 
States?

3 , Whether the court below erred in  refusing to enjoin 
the lessee of the restaurant fa c ilit ie s  in  the Jackson Muni­
cip al A irport from refusing to serve Negroes and from segre­
gating Negroes in  the service of food in  said  restaurant as 
contrary to the Fourteenth Amendment to the Constitution of

the United States.
4. Whether the court below erred in  refusing to enjoin 

the Jackson Municipal A irport Authority, Inc*, from contin­
uing to enforce, as contrary to the Fourteenth Amendment to 
(R-842)
the Constitution of the United States, a p o licy , p ractice ,

1/ M ississip p i Code (1942) T it le  11, p.p.2351> 
2351.7* and T it le  28, p.p.7784, 7785, 77«6, 
and 7787.5.

1 . 5  and
6 -0 1 , 7787



710
(R-S42)
custom, and usage of segregation in facilities of the Jackson 
Municipal Airport, including hut not limited to the airport 
restaurant, rest rooms, and drinking fountains?

5. Whether the court below erred in refusing to enjoin,
as violating the Fourteenth Amendment to the Constitution of
the United States, all future arrests, under color of breach
of the peace and disorderly conduct statutes of the State of
Mississippi, of persons peacefully using transportation
facilities in violation of Jackson and Mississippi aegrega-

2/
tion requirements?

6. Whether the court below erred in refusing to enjoin, 
as violating the Fourteenth Amendment to the Constitution of 
the United States, all prosecutions begun in the courts of 
Mississippi after the filing of the original complaint in 
this action of persons arrested and charged with violation
of Sections 2087.5> 2087.7 and 2089.5 of the Mississippi 
Code (19^2) for peacefully using transportation facilities 
in Jackson, Mississippi in violation of segregation require­
ments?

7. Whether the court below erred in refusing to enjoin 
appellee public officials from, contrary to the Fourteenth 
Amendment to the Constitution of the United States, posting 
signs designating facilities for colored passengers exclu­
sively and facilities for white passengers exclusively on 
doors, walls, sidewalks and other places connected with sta-

17 Mississippi Code (19^2) Title 11, p.p.2087.5> 2087-7 and 
2089.5.



711
(R-842)
tians, terminals, depots, and other passenger facilities 
and services?

8. Whether plaintiffs herein also have been denied 
rights secured by the Commerce Clause, Article 1, Section 8, 
Clause 5 of the United States Constitution and by the Inter­
state Commerce Act, Title 49 United States Code, Section 
5(1) and 516(d).
(p_345)

9. Whether the court below erred in  applying to the 
facts of th is  case the doctrine of equitable abstention?

/s/  Constance Baker Motle y ______
Constance baker 'Motley 
10 Columbus C irc le  
New York 19, New York

D errick A. B e ll 
10 Columbus C irc le  
New York 19, New York

R." ‘f .  Brown 
Suites 5 and 4 
Abraham Build ing 
1105f Washington Street 
Vicksburg, M ississip p i

Attorneys for P la in t iffs

(This instrument carries proper c e rtific a te  of Service, 
which is  not copied h ere .)

* * * *



712

(R-847)
APPEAL BOND

(F ile d  - Nov. 24, 19 6 1 )
NOTE:

Cash Appeal Bond in  amount of TWO HUNDRED FIFTY 
DOLLARS ($250.00) paid into the re g istry  of the court 
by R. Jess Brown, 11052 Washington Street, Vicksburg, 
M ississippi, on th is  the 24th day of November, 19 6 1 .

LOKYCE E. WHARTON, CLERK

/s/  E. Mathison
(M rs.) Elizabeth Mathison 

Deputy Clerk

CERTIFICATE OF DEPOSIT FOR CHECKINS ACCOUNT
Deposited ' DEPOSIT NO. j

with F irs t  National Bank. Jackson, Miss. llj^24-_bl . [
-----~ X m me“ind' lo c it io n ^  d ip o ii- (Ifete seEEf]

tary)
the sum shown opposite for cre d it, 1 $250.00 *'
subject to check, in  the disbursing *_______ _________ *
account o f—
Loryce E. Wharton. C lerk. U.S. D is tr ic t Court 'SYMBOL NOf^ 
(Name and address of' o ffice r to be credited.; 1' 4724 '
On account o f—

R egistry Fund » SPACE BELOW TO'M  TTSED—  
'BY DEPOSITARY ONLY 
* I  c e rtify  that the above 
'amount has been received 
'fo r cred it in  the account 
'o f the Treasurer of the 
'United States on the date 
'shown, subject to adjust­
ment for unco llectib le

(Depositor w ill in sert below 
his name, t it le ,  Department 
°* Agency concerned, and h is 
address)
Loryce E. Wharton, Clerk 
U.S. D is tr ic t Court 
Southern D is tr ic t of M ississip p i 
Jackson, M ississip p i



715

(R-847)
Items included therein.
F irs t  National Bank, Jackson, Miss. 
By (Authorized signatureJ T e lle r

(The follow ing appears on the reverse side of the above 
C e rtifica te  of Deposit)

Cash $250.00
paid into court by R. Jess Brown,
1105̂  Washington S t ., Vicksburg, M iss., 
as cash bond on appeal in  case:
Samuel B a iley et a l 
vs
Joe T. Patterson et a l Jackson 3 1 5 > C iv il
LP 246

* * * *

(R-1400)
O ffice of the C lerk,

Supreme Court of the United States, 
Washington 25# D. C.
February 26, 1962

(F ile d  - Feb. 28, 1962 )

RE: BAILEY, ET AL. v. PATTERSON, ET A L.,
No. 645. OCT. TERM. 1961:................... .
(tour Bo. 3133)

Dear Miss Wharton:
The enclosed opinion of th is  Court in  the above 

case was announced on the date shown thereon.
A ce rtifie d  copy of the judgment or mandate



714

(R-1400)
w ill Issue to you a fte r the expiration of 25 days from the 
date of the opinion, or a fte r a tim ely p e titio n  fo r rehearing 
has been acted upon by the Court. When the 25-day period 
expires in  vacation, the f ilin g  of a tim ely p etitio n  for 
rehearing w ill not stay the issuance of the judgment. (See 

Rule 59).
Very tru ly  yours,
JOHN F. DAVIS, Clerk
By
/s/ R. deB. Waggaman

RJB:ht Deputy
Enclosure
Miss Loryce E. Wharton, Clerk 
United States D is tr ic t Court 

for the Southern D is tr ic t of M ississip p i 
P. 0. Box 769 
Jackson, Miss.

AIRMAIL

# *  # *  * *

(R-1401) SUPREME COURT OP THE UNITED STATES

No. 645.—October Term, 1961.

Samuel B a iley, et a l.,  ) On Appeal From the United 
Apnellants, ) States D is tr ic t Court

v. ) fo r the Southern D is-
Joe T. Patterson, et a l . ) t r ic t  of M ississip p i.

(February 26, 1962.)
OPINION OP THE SUPREME COURT OF THE UNITED STATES 

(F ile d  - Feb. 2B /T 9W
Per Curiam.

Appellants, Negroes liv in g  in  Jackson, M ississip p i,



715
(R-14QX)
brought th is  c iv il  rig h ts action, 28 U .S.C, p, 1343 (3 ), in  
the United States D is tr ic t Court for the Southern D is tr ic t 
of M ississip p i, on behalf of themselves and others s im ila rly  
situated, seeking temporary and permanent injunctions to 
enforce th e ir co n stitutio n al rig h ts to non-segregated ser­
vice in  in terstate  and in trastate  transportation, a lle g in g  
that such rig h ts had been denied them under color of state 
statutes, m unicipal ordinances, and state custom and usage.* 
A three-judge D is tr ic t Court was convened, 28 U .S.C. p .228l, 
and, C irc u it Judge Rives d issenting, abstained from further 
proceedings pending construction of the challenged laws by 
the state courts.
— P, Supp. — . P la in t iffs  have appealed, 28 U .S.C. p.1253; 
N.A.A.C.P. v. Bennett, 360 U.S. 471. We denied a motion to 
stay the prosecution of a number of crim inal cases pending 
disposition of th is  appeal. 368 U.S. 346.

Appellants la ck  standing to enjoin crim inal prosecu­
tions under M ississip p i!s breach of peace statutes, since 
they do not a llege that they have been prosecuted or 
threatened with prosecution under them. They cannot 
(R-1402)
represent a class of whom they are not a part. McCabe v. 
Atchison, T. & S. P. R. Co., 235 U. S. 151, 162-163. But 
9s passengers using the segregated transportation fa c ilit ie s  
they are aggrieved p arties and have standing to enforce

~~Mrhe statutes in  question are M iss. Code, 1942, T it . I I ,  
P.P.2351, 2351.5, 2351.7,and T it .28, p.p.7784, 7785, 7786, 
7786-0 1 , 7787, 7787.5.



716
(R-1402)
their rights to nonsegreated treatment. Mitchell v. United 
States# 313 U. S. 80# 93; Evers v. Dwyer, 358 U.S. 202.

We have settled "beyond question that no State may 
require racial segregation of interstate or intrastate trans­
portation facilities. Morgan v. Virginia, 328 U. S. 3731 

Gayle v. Browder, 352 U. S. 903; Boynton v. Virginia, 364 
U, S. 454. The question is no longer open; it is foreclosed 
as a litigable issue. Section 2281 does not require a 
three-judge court when the claim that a statute is uncon­
stitutional is wholly insubstantial, legally speaking non­
existent. Ex parte Poresky, 290 U. S. 30j Bell v. Water­
front Comm’n, 279 F. 2d 853, 857-858. We hold that three 
judges are similarly not required when, as here, prior 
decisions make frivolous any claim that a state statute 
on its face is not unconstitutional. Willis v. Walker,
136 F.Supp. l8l; Bush v. Orleans Parish School Board, 138 F. 
Supp. 336; Kelley v. Board of Education, 139 F. Supp. 578.
We denied leave to file petitions for mandamus in Bush, 351 
U.S. 948, and from a similar ruling in Booker v. Tennessee 
Board of Education, 351 U. S. 948. The reasons for convening 
an extraordinary court are inapplicable in such cases, for 
the policy behind the three-judge requirement— that a single 
judge ought not to be empowered to invalidate a state sta­
tute under a federal claim— does not apply. Hie three-judge 
Requirement is a technical one to be narrowly construed, 
Phillips v. United States, 312 U.S. 246, 251. The statute



717
(R-1402)
comes into play only when an injunction is sought "on the 
ground of the unconsti tut tonality" of a statute. There 
is no such ground when the constitutional issue presented 
is essentially fictitious.
{R-1403)

This case is therefore not one "required . . .  to be 
heard and determined by a district court of three judges,"
28 U.S.C. p.1253* and therefore cannot be brought here 
on direct appeal. However, we have jurisdiction to deter­
mine the authority of the court below and "to make such 
corrective order as may be appropriate to the enforcement 
of the limitations which that section imposes," Gully v. 
Interstate Natural Gas Co., 292 U. S. 16, 18; Oklahoma Gas 
& Elec. Co. v. Oklahoma Packing Co., 292 U. S. 386, 392; 
Phillips v. United States, 312 U. S. 246, 254. Accordingly, 
we vacate the judgment and remand the case to the District 
Court for expeditious disposition, in light of this opinion, 
of the appellants* claims of right to unsegregated transpor­
tation service.

Vacated and remanded.

# * * * * *



(R-14Q5)
718

SUPREME COURT OP THE UNITED STATES 
No. 6 4 3 ----~t October Term, 1961

Samuel Bailey, et al.,
Appellants,

vs.
Joe T. Patterson, et al.

ORDER IN ACCORD WITH OPINION OP THE SUPREME COURT OF 
_____________ THE UNITED STATES_______________________

(Filed - March 26, 1962)

APPEAL from the United States District Court for 
the Southern District of Mississippi.

THIS CAUSE came on to be heard on the transcript 
of the record from the United States District Court for the 
Southern District of Mississippi.

ON CONSIDERATION WHEREOF, It is ordered and ad­
judged by this Court that the judgment of the said United 
States District Court in this cause be, and the same is 
hereby, vacated with costsj and that this cause be, and the 
same is hereby, remanded to the United States District Court 
for the Southern District of Mississippi for expeditious 
disposition of appellant’s claims of right to unsegregated 
transportation service.

It is further ordered that the said appellants, 
Samuel Bailey, et al., recover from Joe T. Patterson, et al.



719
(R-1405)
One Hundred Dollars ($100) for their costs herein expended.

February 26, 1962

Clerk's costs $100 
(SEAL)

A true copy
Test: /s/ John F. Davis

Clerk of the Supreme Court of the United 
States

0 B 1961 P 125

* It * * *

(R-1407)
MOTION FOR IMMEDIATE RELIEF IN ACCORDANCE 
WITH OPINION AND JUDGMENT OF THE SUPREME 
COURT OF THE UNITED STATES
(Title Omitted - Filed April 19, 1962)

Plaintiffs, by their undersigned attorneys, move this 
Court for an order granting the relief prayed for in their 
amended complaint in this cause in accordance with the 
opinion of the United States Supreme Court rendered on 
February 26, 1962 and judgment of the Court issued on March
23, 1962.

Plaintiffs assign the following grounds for granting 
this motion:

1. The original complaint in this cause was filed



720

(R-1407)
June 9, 1961. An amended complaint, filed July 17th, named 
as an additional party defendant the Jackson Municipal Air­
port Authority. The amended complaint alleged that defen­
dants Continental Southern Lines, Inc., Southern Greyhound 
(R-1408)
Lines, and Jackson City Lines, Inc., were enforcing racial 
segregation aboard carriers and in the depots, stations, 
and terminals owned and/or operated by them in the City of 
Jackson, Mississippi and State of Mississippi; that defendant 
Illinois Central Railroad, Inc. was enforcing segregation 
in its depots, stations, and terminals located in Mississip­
pi; that defendant Jackson Municipal Airport Authority main­
tained segregated facilities at its airport terminal in the 
City of Jackson and the lessee of its restaurant facility, 
defendant Cicero Carr, denied food service to Negroes; that 
defendant Joe T. Patterson as Attorney General of Mississip­
pi, is under a duty and threatens to enforce the transporta­
tion segregation statutes of Mississippi against the plain­
tiffs and members of their class; that defendant corporation 
City of Jackson, Mississippi, and certain of its officials 
named as defendants, Allen Thompson, Mayor, Douglas Luckey, 
and Thomas Marshall, City Commissioners, and W. D. Rayfield, 
Chief of Police threatened to enforce a municipal ordinance 
requiring segregation in waiting rooms and rest rooms main­
tained by common carriers against plaintiffs and members of 
their class. The amended complaint also alleged that defen­
dant carriers, Jackson City Lines, Continental Southern Lines



721

(R-l408)
and the Greyhound Corporation, placed or allowed to be 
placed signs above and/or on the outside door of their 
waiting room facilities designating a portion of said faci­
lities as exclusively reserved for one or the other of the 
races,

2. The amended complaint prayed for a temporary and 
permanent injunction against defendants, their agents, em­
ployees, attorneys, successors, and all persons in active 
concert and participation with them, enjoining them from 
continuing these practices.
(R-140Q)

3. Simultaneously with the filing of the original and 
amended complaints there were filed motions for a preliminary 
injunction.

4. September 25> 1961, the amended motion for prelimi­
nary injunction and prayer for permanent injunction were 
heard. Plaintiffs produced evidence sufficient to establish 
the truth of the allegations of the amended complaint with 
respect to defendants’ denial of plaintiffs’ constitutional 
and statutory rights. The state policy of segregation of the 
races in the use of transportation facilities was shown by 
reference to the statutes of the State of Mississippi 
requiring segregation. The Jackson City ordinance of 1956 
which required carriers to maintain separate facilities for 
the white and Negro races was introduced in evidence. The 
state’s Attorney General testified to the effect that he 
would enforce the State’s transportation segregation statutes.



722

(R-1409)
Plaintiffs proved that the Jackson police department caused 
signs to be posted on sidewalks outside carrier terminals 
directing passengers to the facilities for their respective 
race; that each carrier posted signs labeling facilities 
for separate use and that Jackson City Lines had signs 
aboard its buses to control the seating of its passengers 
according to race. The evidence adduced at the hearing 
showed that the principal means of enforcing segregation 
was to arrest on charges of breach of the peace persons 
seeking to use travel facilities in disregard of the segre­
gation policy.

5. Shortly before the hearing of this cause, the 
Interstate Commerce Commission issued a ruling banning segre­
gation aboard interstate carriers and the maintenance of 
segregated facilities at carrier depots or terminals. Signs 
designating these facilities for use by a given race were
proscribed.
(R-1410)

6. On November 17, 1961, this court entered an order 
invoking the doctrine of federal abstention "to give the 
State Courts of Mississippi a reasonable opportunity to act." 
Plaintiffs appealed.

7. A motion for an Injunction enjoining certain state 
court breach of the peace prosecutions to which these plain­
tiffs were not parties was denied by this court and the
United States Supreme Court pending appeal,._____U. S._____ J
L.ed. 2d 332.

8. February 26, 1962, the United States Supreme Court



723
(R-1410)
vacated the judgment of November IT# 1961 U. S. 7 L.ed
2d 512, 82 S. Ct._____ . The Court's opinion made clear
that Mississippi's transportation segregation statutes, the 
Jackson City ordinance requiring segregated transportation 
facilities, and the policies and actions of defendants in 
enforcing racial segregation are unconstitutional since past 
decisions of the Court "have settled beyond question that 
no State may require racial segregation of interstate or 
intrastate transportation facilities." Since, as the Supreme 
Court held, "the constitutional issue presented is essentially 
fictitious," and these plaintiffs have standing to enforce 
their undisputed legal right to nonsegregated use of the 
transportation facilities in Mississippi, this Court's duty 
to grant the relief sought by plaintiffs is beyond dispute 
inasmuch as the necessary factual showing has been made.

9. Moreover, to put plaintiffs to the expense and sub­
ject them to the harrassment and obloquy of defending crimi­
nal cases in the state courts founded solely upon the fact 
that they seek to use interstate and intrastate travel faci­
lities without being subjected to racial discrimination is, 
in itself, an interference with their liberty contrary to 
the due process clause of the Fourteenth Amendment to the 
United States Constitution.
(R-1411)

10. Similarly, March 26, 1962, the United States
Supreme Court decided Turner v. City of Memphis, ______ U.S.__
______30 U.S. Law Week 4262. That case involved racial



724
(R-1411)
segregation in the restaurant in the Memphis Municipal Air­
port which had been leased to a private corporation. Defen­
dants relied upon an administrative regulation made pursuant 
to state statute which favored segregated seating in the 
restaurant. The District Court there also abstained from 
decision pending construction of the Tennessee statutes and 
regulation by the State courts. The Supreme Court held that 
insofar as the regulation "expressed an affirmative State 
policy fostering segregation in publicly operated facilities", 
it could not "stand consistently with the Fourteenth Amend­
ment." The Court further declared: "On the merits, no issue 
remains to be resolved. This is clear under prior decisions 
and the undisputed facts of the case. Accordingly no occa­
sion is presented for abstention, and the litigation should be 
disposed of as expeditiously as is consistent with proper 
judicial administration." Accordingly, the Supreme Court 
vacated the District Courtls judgment and directed entry of 
a decree granting immediate injunctive relief against the 
complained of discrimination.

11. March 23, 1962, a certified copy of the Supreme 
Court’s judgment in this cause issued from the office of 
the clerk of that Court in accordance with Rule 59 of the 
Supreme Court Rules. That judgment has remanded this case 
to this court for "expeditious disposition" in light of the 
opinion of February 26, 1962.

WHEREFORE, in accordance with the opinion and judgment of



725
(R-1411)
the United States Supreme Court, plaintiffs pray that this 
court immediately grant the injunctive relief requested in 
their amended complaint viz., a permanent injunction en­
joining the defendants, and each of them, their agents, 
employees, attorneys, successors and all persons in active 
concert and participation with them, from:
(R-1412)

a) continuinlng to enforce statutes of the State 
of Mississippi requiring racial segregation on common 
carriers, in waiting rooms used by common carriers, and 
rest room facilities maintained by common carriers, i.e., 
Title 11, Sections 2551, 2551.5 and 2551.7, and Title 28 
p.p*7784, 7785, 7786, 7786-01, 7787, 7787.5 Mississippi Code 
Annotated (1942), and any other statute of the State of 
Mississippi requiring or permitting such segregation;

b) continuing to enforce ordinances of the City 
of Jackson, Mississippi, requiring racial segregation in 
waiting rooms and rest room facilities owned and/or main­
tained and/or utilized by common carriers;

c) continuing to enforce a policy, practice, 
custom, regulation or usage, under color of state law or 
city ordinance, of segregating Negro and white passengers on 
common carriers and in the facilities and services of the 
depots, stations, terminals, owned and/or operated and/or 
utilized by common carriers in connection with their busi­
nesses of transporting interstate and Intrastate passengers 
for hire;



726

(R-1412)
d) continuing to enforce a policy, practice, 

custom and usage of segregation in the facilities and ser­
vices of the Jackson Municipal Airport including but not 
limited to the airport restaurant owned and/or operated and/or 
controlled by the Jackson Municipal Airport Authority or 
owned and leased by the Jackson Municipal Airport Authority
to a private individual for the benefit of airline passen­
gers and the general public;

e) continuing, under color of state law, city 
ordinance, state policy, custom, usage, or regulation, to 
arrest, harass, intimidate, threaten or coerce plaintiffs, 
and members of their class, in connection with the exercise 
of their federally protected right to use interstate and in­
trastate transportation facilities and services without 
(R-1415)segregation or discrimination against them solely because 
of race and color; J

f) continuing to post, or permit to be posted, 
signs designating facilities set aside for colored and white 
passengers on the doors, walls, sidewalks, or other places 
connected with or in the terminals, depots, stations, rest 
rooms, waiting rooms, lunch rooms or any other passenger 
facility or service.

Plaintiffs also pray that this Court grant them their 
costs herein and such other, additional, or further reliefs 
as may appear to the Court to be equitable and just.



(R-1413)
727

r ;  g " M O T ---------------------

1105? Washington Street 
Vicksburg, Mississippi

WHilAM R. MING, JR., Esq, 
Moore, Ming & Leighton 
123 W. Madison Avenue 
Chicago 2, Illinois

/s/ Constance Eaker Motley
TmmMiFBsmrmw
JACK GREENBERG 
DERRICK A. BELL 
10 Columbus Circle 
New York 19, New York

Attorneys for Plaintiffs
NORMAN C. AMAKER 

Of Counsel

April 17, 1962

(This instrument carries proper Notice and Certificate of 
Service, which are not copied here.)

* * # * * 
(R-1418)

AFFIDAVIT OP A. B. SMITH 
(Title Omitted - Filed April 26, 1962)

Personally came and appeared before me, the under- 
signed Notary Public in and for Hinds County, Mississippi,
A. B. SMITH, who, being by me first duly sworn, on oath



72 8

(R-1418)
deposes and says as follows:

1 . That he has read the Motion for Immediate 
Relief now pending in Civil Action No. 3133* aod has espe­
cially noted the prayer for relief contained therein.

2. This affiant further states that subsequent to 
the opinion of the United States Supreme Court and the 
judgment thereon issued on March £3, 1962, and further based 
upon the reported statements of the public officials of the 
city of Jackson, Mississippi to the Federal District Court 
sitting in Biloxi, Mississippi, on another motion in the 
said cause to the effect that the City of Jackson and its 
officials were not enforcing or attesting to enforce the 
(R-1^19)segregation laws and ordinances of the State of Mississippi

<
and the City of Jackson; that this affiant, as the manager 
of defendant, Jackson City Lines, Inc., has caused to be 
removed from each and every bus of this defendant, Jackson 
City Lines, Inc., every sign of every nature, kind and charan 
ter which would indicate any separate seating for the races; 
and this affiant further states that as such manager, and 
acting on authority of the officers of this defendant, that 
every driver and operator of a bus of this defendant has been 
instructed to operate the buses and equipment of this de­
fendant without regard to race, color or creed, and that this 
defendant is not, either by itself or in active concert and 
participation with others, making any effort to enforce any 
of the statutes or ordinances which have been declared



729
(R-14X9)
invalid by the Supreme Court of the United States of America, 
and that this defendant is not and will not, either by itself 
or in concert with others, make any effort to enforce any 
policy, practice, custom or usage of segregation in, on 
and about its facilities, buses, and/or equipment.

And further this affiant sayeth nothing.

/s/ A. B, Smithx"srmrEEr
Sworn to and subscribed before me, this the 26 

day of April, 1962.
/s/ Jeanette S. Hood 

"'Notary Public
My Commission Expires July 12, 1962

(SEAL)

(This instrument carries proper Notice and Certificate of 
Service, which are not copied here.)

* # * * * *

(R-1441) AFFIDAVIT OF EVERETT RENEGAR
AFFIDAVIT

(Title Omitted - Filed April 28, 1962)
UNITED STATES OF AMERICA 
STATE OF MISSISSIPPI 
COUNTY OF HINDS: : x

This day personally came and appeared before me, 
the undersigned authority in and for the aforesaid jurisdic-



750
(R-1441)
tions, the within named Everett Renegar, who, after being 
first duly sworn by me, says on his oath:

That he is Local Manager in the City of Jackson, 
Mississippi for The Greyhound Corporation and has been 
acting and employed in such capacity for a goodly period of 
time prior to this date.

All signs which have been heretofore placed by 
The Greyhound Corporation on the bus terminal used by it 
in the City of Jackson, Mississippi in accordance with the 
statutes and ordinances of the State of Mississippi and the 
said City of Jackson complained of in the original and 
amended complaints in the above entitled cause were removed 
from said bus terminal before November 1, 1961, in accordance 
with a certain order or regulation of the Interstate Com­
merce Commission and no such signs have been in existence 
since before November 1, 1961, and are not presently existing 
on the bus terminal or premises used by The Greyhound Corpo­
ration in the City of Jackson, Mississippi.

/s/ Everett Renegar____________
Sworn to and subscribed before me, this April 24,

1962.

[ m L )  ----------------------------
%  Commission expires:
- April 18. 1964

(This instrument carries proper Notice and Certificate of
Service, which are not copied here.)* * * # *



(R-1443) AFFIDAVIT OF SAM C. WATTS
AFFIDAVIT

751

(Title Omitted - Filed April 28, 1962)
UNITED STATES OF AMERICA 
STATE OF MISSISSIPPI 
COUNTY OF HINDS: : :

This day personally came and appeared before me, 
the undersigned authority In and for the aforesaid jurisdic­
tions, the within named Sam C. Watts, who, after being first 
duly 3 w o m  by me, says on his oath:

That he is Vice-President of Continental Southern 
Lines, Inc. and has been acting and employed in such capacity 
for a goodly period of time prior to this date.

All signs which have been heretofore placed by 
Continental Southern Lines, Inc. on the bus terminal used 
by it in the City of Jackson, Mississippi in accordance 
with the statutes and ordinances of the State of Mississippi 
and the said City of Jackson complained of in the original 
and amended complaints in the above entitled cause were re­
moved from said bus terminal before November 1, 1961, in 
accordance with a certain order or regulation of the Inter­
state Commerce Commission and no such signs have been in 
existence since before November 1, 1961, and are not pre­
sently existing on the bus terminal or premises used by 
Continental Southern Lines, Inc. in the City of Jackson, 
Mississippi.



752

(R-1W3)
/s/ Sam 0. Watts ________

Sworn to and subscribed before me, this April 24,
1962.
(SEAL) /s/ Mary Ella Barnett________

NOTARY PUBLIC
My Commission expires: 

April l8, 196^

(This Instrument carries proper Notice end Certificate of 
Service, which are not copied here,)

$ % •» * * 

(R-1470)
FINDINGS OF FACT, CONCLUSIONS
OF LAN, AND DECLARATORY JUDGMENT
(Title Omitted - Filed May 3, 1962)

This action was brought by three Negro citizens 
and residents of Jackson, Mississippi, to enjoin the 
alleged enforcement of certain Mississippi statutes which 
are alleged to be unconstitutional. The statutes sought 
to be enjoined are Title 11, Sections 2351, 2351.5 and 
2351.7, and Title 28, Secs. 7784, 7785, 7786, 7786-01, 
7787, 7787.5, Mississippi Code Annotated (1942), herein­
after referred to as Mississippi segregation statutes. 
Plaintiffs attack the constitutionality of said statutes.

The plaintiffs also seek to enjoin the arrests 
and prosecutions of persons other than the plaintiffs



733
(R-1470)
under Sections 2087.5, 2087.7 and 2089.5 of the Mississippi 
Code Annotated (1942), as amended in i960, hereinafter re­
ferred to as Mississippi breach of peace statutes.
(R-1471)Plaintiffs do not contend that these statutes are unconsti­
tutional. A three-judge District Court was convened in this 
case under Title 28 U.S.C. Section 2281. A hearing on 
plaintiffs’ motion for a preliminary injunction was consoli­
dated with a hearing on the merits. The three-judge Court 
abstained from further proceedings pending construction of 
the challenged laws by the state courts, 199 F.Supp. 595. 
Plaintiffs appealed, and the Supreme Court of the United 
States denied a motion for an injunction pending disposition 
of the appeal. 368 U.S. 346. The Supreme Court of the 
United States held that this was not a proper matter for 
a three-judge District Court, vacated the judgment, and 
remanded the case to this Court for expeditious disposition 
of plaintiffs’ claims of right to unsegregated transportation
service. _______ U.S. _______, 7 L.Bd.2d 512. Accordingly,
an order has been entered herein dissolving the three-judge 
Court.

FINDINGS OF FACT

1. None of the plaintiffs has been arrested 
or threatened with arrest under any of the segregation 
statutes attacked in this case. The plaintiffs have not 
been arrested or threatened with arrest under any of the 
Mississippi breach of peace statutes referred to in the



734
(R-1471)
amended complaint. The plaintiffs have not been denied 
any right, privilege or immunity claimed by them by virtue 
of said segregation statutes.

2. The interests of the plaintiffs are antago­
nistic to and not wholly compatible with the interests of 
(R-1472)
those whom they purport to represent. They do not belong 
to a class which would include the persons arrested and 
prosecuted in the Mississippi Coarts under the breach of 
peace statutes.

3. There have been no arrests or prosecutions 
under the segregation statutes attacked in this case for 
many years, and said statutes have not been enforced in 
Mississippi.

4. Evidence offered by the plaintiffs affirma­
tively establishes as a fact that none of the defendants 
has made any effort to control the action of Negroes in 
any of the terminals or on any of the carriers involved 
In this case.

5. The evidence discloses isolated instances 
of improper behavior on the part of certain law enforce­
ment officers. The fact that they are relatively few in 
number emphasizes their absence as a general practice or 
policy. As much as we would like to see it otherwise,
law enforcement officers are not infallible. Being human, 
there are those who are guilty of improper conduct, but 
the evidence in this case proves that such conduct is a



735
(R-1472)
rare exception rather than the general practice, While 
we cannot condone the mistakes made by a few law enforce­
ment officers, we cannot indict a municipality or a State 
because of isolated errors in judgment on the part of such 
officers. For Instance,one of plaintiffs1 witnesses testi­
fied that he used the Jack3on airport from fifteen to 
twenty times a year. On one occasion an unidentified 
waitress refused to 3erve him in the restaurant. He did 
not report this incident to anyone in authority with the 
(R-1473)airport or with the City. Plaintiffs1 witness, Dr. Jane 
McAllister, testified that she had commuted daily by bus 
from Jackson to Vicksburg, Mississippi, for ten years.
As a colored person, she had always sat where she wished 
on the bus. On one occasion she was treated rudely by a 
Jackson policeman. The same is true of several other iso­
lated instances reflected by plaintiffs1 evidence.

6. There was no evidence of any arrest in the 
City of Jackson of a Negro prior to April, 1961, when the 
Freedom Riders began their much publicized visits to that 
City. The arrests of those persons involved both white 
and colored people who were arrested at the same place 
and for the same reason. Neither race nor color nor 
location of facility being used had anything to do with 
those arrests. No such arrest was made under any of 
Mississippi's segregation statutes. The cases arising 
out of those arrests are now pending in the Courts of the



736
(R-1473)
State of Mississippi, and this Court should not attempt 
to determine the merits of those State Court actions.

7. All segregation signs have been removed from 
the premises of all of the carrier defendants. All 
facilities in all terminals of the carrier defendants are 
now being freely used by members of all races, and there 
is no justification for the issuance of an injunction in 
this case.
(R-lW)

CONCLUSIONS OP LAW

1. This Court has jurisdiction of the parties 
hereto and the subject matter hereof.

2. This is not a proper class action, and no 
relief may be granted other than that to which the plain­
tiffs are personally entitled. In the complaint plaintiffs 
purported to represent themselves and "other Negroes 
similarly situated". In the amended complaint plaintiffs 
purported to represent "Negro citizens and residents of
the State of Mississippi and other states". Plaintiffs* 
right to represent anyone but themselves was put in issue 
by the pleadings. The testimony of the plaintiffs was 
conflicting as to the identity of the class purported to 
be represented. They proved no authority to represent 
any other person and admitted that other Negroes did not 
approve of this action. On appeal an attempt was made to 
broaden the alleged class to include white and colored



737
(R-1474)
freedom riders* Whether this is a proper class action 
involves a question of fact. Flaherty v. McDonald. D.C. 
Cal.* 178 F.Supp. 544. The plaintiffs cannot make this 
a legitimate class action by merely calling it such.
Pacific Fire Ins. Co. v. Reiner. D.C.La., 45 F.Supp. 703. 
The burden of proof on this issue was on the plaintiffs. 
Qppenhelmer v. F.J, Young & Co.. D.C. N.Y., 3 F.K.D. 220. 
The plaintiffs failed to meet this burden. In addition, 
a class action cannot be maintained where the interests of 
the plaintiffs are antagonistic to and not wholly compatible 
with the interests of those whom they purport to represent. 
Flaherty v. McDonald. D.C. Cal., 178 F.Supp. 544; Redmond.
(R-1475)et al v. Commerce Trust Co.. C.C.A. 8th, 144 F.2d 140; 
Brotherhood of Locomotive Firemen and Bnginemen v. Graham, 
et al.. C.C.A. Dist, of Columbia, 175 F.2d 802; Kentucky 
Home Mut. Life Ins. Co. v. Puling. C.C.A.6th, 190 F.2d 797; 
Advertising Specialty National Association v. Federal Trade 
Commission. C.C.A. 1st, 238 F.2d 106; and Troup v, McCart. 
C.C.A.5th, 238 F.2d 289. The efforts of the plaintiffs to 
bring white and colored freedom riders within the class 
represented make it clear that this Is not a proper class
action. Bailey v. Patterson. __________ U. S. _________ ,
7 L.ed.2d 512.

3. The three plaintiffs are entitled to an 
adjudication of their personal claims of right to unsegre­
gated transportation service by a declaratory judgment



738
(H-1475)
herein.

4. It Is mandatory upon this Court to declare 
the Mississippi segregation statutes and City ordinance 
attacked in this case to be unconstitutional and void as 
violative of the Fourteenth .Amendment to the Constitution
of the United States. Bailey v, Patterson, ____U.S.______ ,
7 L.Ed,2d 512.

5. Under the facts of this case, the plaintiffs 
are not now entitled to injunctive relief. In so holding, 
this Court is seeking to observe a vital and fundamental 
policy which for many years has been pronounced and 
followed by the United States Supreme Court end by other 
Federal Courts to the effect that Federal Courts of equity 
shall conform to clearly defined Congressional policy by 
refusing to interfere with or embarrass threatened prose­
cution in State Courts except in those exceptional cases 
(R-1476)which call for interposition of a Court of equity to 
prevent irreparable injury which is clear and imminent.
The issuance of a writ of injunction by a Federal Court 
sitting in equity is an extraordinary remedy. Bailey v. 
Patterson (on motion for stay injunction pending appeal), 
368 U.S. 346. Injunctive relief will never be granted 
where the parties seeking same have adequate remedies at 
law. Douglas v. City of Jeannette, 319 U.S. 157* 87 L.Ed. 
1324] Cobb v. City of Malden, C.C.A.lst, 202 F.2d 701;
Brown v. Board of Trustees^ U.S.C.A.5th, 187 F.2d 20; and



759
(R-1476)
State of Mo. ex rel Gaines v. Canada,, 305 U.S. 337, 83 L.Ed. 
208. It is discretionary with the Court as to whether it 
will enjoin enforcement of an unconstitutional statute., 
and it will not do so in the absence of a strong showing 
that the plaintiffs will suffer immediate and irreparable 
Injury in the absence of injunctive relief. Kingsley 
International Pictures Coro, v. City of Providence, 166 
F.Supp. 456. The Court will not enjoin enforcement of an 
unconstitutional statute In the absence of evidence that 
said statute is being enforced. Poe v« Ullman, 387 U.S,
497, 6 L.Ed.2d 989. In Bailey v. Patterson, ______ U.S._____
7 L.Ed.2d 512, the Supreme Court of the United States 
correctly held that plaintiffs were not entitled to enjoin 
the criminal prosecutions of the freedom riders, and said: 

"Appellants lack standing to enjoin criminal 
prosecutions under Mississippi’s breach of peace 
statutes, since they do not allege that they 
have been prosecuted or threatened with prose­
cution under them."

(R-1477)
6. The desire to obtain a sweeping injunction 

cannot be substituted for compliance with the general 
rule that the plaintiffs must present facts sufficient 
to show that their individual needs require injunctive
relief. Bailey v. Patterson,______ U.S. , 7 L.Ed.2d
512; McCabe v. Atchison T« & S. F. Ry. Co.. 235 U.S. 151,



740
(R-1477)
59 L,Ed. 1695 Brown v. Board of Trustees, U. S.C.A.5th,
I87 F.2d 201 and Kansas City, Mo., et al v. Williams, et al, 
U.S.C. A.8th, 205 F.2d 47.

7. Although no injunctive relief should now be 
granted, this Court should retain jurisdiction over this 
action and each of the defendants for such further orders 
and relief as may subsequently be appropriate.

This May 1st, 1962.

(R-1478)
/s/ S. C. Mine

DECLARATORY JUDGMENT

IT IS ORDERED. ADJUDGED AND DECLARED as follows,
to-wit:

(1) That this Is not a proper class action, 
and no relief may be granted other than that to which 
the plaintiffs are personally entitled.

(2) That each of the three plaintiffs has
a right to unsegregated transportation service from each 
of the carrier defendants.

(5) That the Mississippi segregation statutes 
and City ordinance attacked in this case are unconstitu­
tional and void as violative of the Fourteenth Amendment 
to the Constitution of the United States of America.

(4) That the plaintiffs are not now entitled 
to any injunctive relief, but jurisdiction over this



741
(R-1478)
action and each of the defendants is hereby retained for 
the entry of such further orders and relief as may be 
subsequently appropriate.

(5) That all Court costs incurred herein be 
and the same are hereby taxed against the defendants.

ORDERED, ADJUDGED AND DECLARED, -chis 1st day 
of May, 1962.

/a/ S. Co Mize
Th E M T  STASES”DISTRICtXUDGE

ENTERED JACKSON DIVISION
OP THE SOUTHERN DISTRICT OP MISSISSIPPI
ORDER BOOK 1962, pages 208 through 216.

JACKSON DIVISION OP THE SOUTHERN DISTRICT OP 
MISSISSIPPI CIVIL ACTION NO. 5135

UNITED STATES DISTRICT CGURT 
Southern District of Mississippi 

Gulfport, Mississippi
May 3, 1962

Chambers of X  /
SIDNEY C. MIZE 
District Judge

/  XMrs. Constance Baker Motley 
Attorney at Law- 
10 Columbus Circle 
New York 19, New York

Re: Bailey, et al v. Patterson, et al 
Dear Mrs. Motley:

(Piled - May 4, 1962)

/
Your letter of May 1 enclosing proposed judgment

crossed in the malls with my letter of May 1 to you and all



742
(H-1479)
Interested parties enclosing copies of my findings of fact 
and conclusions of law and judgment entered in the above 
styled case. Doubtless you have received my letter and 
ooples by this time.

I might say that I gave most thorough consider­
ation to the case, the record and the briefs, and after that 
thorough consideration I reached the conclusions expressed 
in the judgment. I am firmly convinced that there will be no 
violation of the declaratory judgment issued by me by any of 
the defendants. If there should be a violation I have re­
tained jurisdiction to enter such further orders as may be 
warranted. There is no doubt but what the court has power 
to retain jurisdiction to enforce judgments of this type 
entered by it.

I am filing in the record your proposed judgment, 
along with your letter.

I would like to take this opportunity to express 
to you and all opposing counsel my thanks for the very 
thorough manner in which you have briefed this case.

With kfndest regards to all of you, I am 
Sincerely yours,

/s/ S. C. Mize
S. C, MIZE

cc; Hon. Tom Watkins 
Hon. Joe Patterson 
Hon. Junior 0*Mara 
Miss Loryce Wharton* * # * * *



743
(R-1480)
May 1, 1962 (Received - May 4, 1962)

The Hon. Sidney Mize 
United States District Judge 
Southern District Mississippi 
Gulfport, Mississippi
Dear Judge Mize;
Thank you for your letters of April 20 and April 26. I 
am indeed sorry to learn of your illness. I wish you a 
speedy recovery.

At your suggestion, we have prepared a proposed judgment, 
enclosed herewith. (Copies served on defendants.)

We respectfully oppose the Attorney General's motion for 
an extension cf time to reply to our motion until June 1, 
since we believe that such an extension, if granted for 
the reasons assigned, would preclude the "expeditious 
disposition" of this case directed by the Supreme Court.

We also respectfully suggest that the filing of affidavits 
by defendant carriers setting forth their cessation of 
segregation practices has no legal effect on the proposed 
judgment. See, United States v. W. T. Grant Co., 345 U.S. 
629 at p. 633 and United States v. Parke, Davis & Co.,
365 u.S. 125. Particularly are the rules set forth in 
these cases applicable here where defendants have pursued 
or acquiesced in segregation policies and practices for 
decades and have continued or permitted to continue such 
policies and practices several years after they had been



744
(R-1480)
declared unconstitutional by the United States Supreme 
Court.

Also, the Insistence of the Attorney General and the city
officials that the transportation segregation statutes and
ordinance will not be enforced are of course contrary to
the record (Tr. pp. 270, 341) and the requirements of
state law (Miss Code, 1942, p.4063.5). Thus, both the
threat of future enforcement of invalid laws and the fact 
(R-1481)
that the policy of the City of Jackson and the State of 
Mississippi is "separation" of the races takes this case 
outside the rule of Poe v. Oilman, 367 0,S. 497.

Finally, that plaintiffs need not subject themselves to 
arrest in order to maintain this suit was settled by the 
Supreme Court in Evers v. Dwyer, 358 U. S. 202, and by the 
Fifth Circuit in Morrison v. Davis, 252 F.2d 102, 103 (5th 
Cir. 1958) and Baldwin v. Morgan,, 251 F.2d 780, 787 (5th 
Cir. 1958).

Yours truly,

/s/ Constance B. Motley
Constance B. Motley 
Attorney for Plaintiffs
ec

10 COLUMBUS CIRCLE 214
* *

NEW YORK 19, N. Y.
* *



745
(R-1482)

JUDGMENT
(Denied - 
S. C. Mize)

(Title Omitted - Received - May 4, 1962)

The Supreme Court having vacated the judgment entered 
by the three**judge court and remanded this case for expedi­
tious disposition, in light of its opinion, of appellants' 
claims of right to unsegregated transportation service, it 
is hereby

ORDERED:
1. Permanent injunction against the defendant JOE T. 

PATTERSON, Attorney General of the State of Mississippi, 
is hereby granted and said defendant, his agents, employees, 
attorneys, successors and assigns are hereby enjoined under 
order of this Court from:

a. enforcing any statute of the State of Missis­
sippi requiring or permitting racial segregation on common 
carriers, in waiting rooms, rest rooms and other facilities
used by common carriers, and are further enjoined from en- 
(R-1483)
forcing or threatening to enforce Title 11, Sections 2551# 
2551.5 and 2551.7, and Title 28, Sections 7784, 7785, 7786, 
7786-01, 7787, 7787.5, Mississippi Code Annotated (1942).

b. continuing to enforce a policy, practice, cus­
tom, regulation or usage, under color of state law, of 
Requiring, authorizing or permitting by signs or otherwise 
the segregation or separation of Negro and white persons
on common carriers and in the facilities and services of the



746
(R-1483)
depots, stations and terminals, owned and/or operated and/or 
utilized by common carriers in connection with their busi­
ness cf transporting interstate and intrastate passengers 
for hire, and

c. continuing (under color of state law, city 
ordinance, state policy, custom, usage, or regulation) to 
arrest, harass, intimidate, threaten or coerce the plaintiffs, 
and members of their class, in connection with the exercise 
of their federally protected right to use interstate and 
intrastate transportation facilities and services without 
segregation or discrimination against them solely because 
of race and color.

2, Permanent injunction against the defendants, the 
CITY OP JACKSON, a Municipal Corporation, ALLEN C. THOMPSON, 
Mayor of the City of Jackson, Mississippi, DOUGLAS L. LUCKEY, 
THOMAS B. MARSHALL, Commissioners of the City of Jackson, 
Mississippi, and W. D. RAYFIELD, Chief of Police in the City 
of Jackson, Mississippi, their agents, employees, attorneys, 
successors and assigns is hereby granted and said defendants 
are hereby enjoined under order of this Court from:

a. enforcing the ordinance of the City of Jackson, 
Mississippi, of January 12, 1956 (Minute Book "PP", p. 149) 
(R-1484)
requiring racial segregation in common carrier waiting rooms, 
rest rooms and other carrier accommodations in the City of 
Jackson;



747
(R-1484)

b. continuing to enforce a policy, practice, 
custom, regulation or usage, under color of state law of 
requiring, authorizing or permitting by signs or otherwise 
the segregation or separation of Negro and white persons 
on common carriers and in the facilities and services of
the depots, stations, terminals, owned and/or operated and/or 
utilized by common carriers in connection with their busines­
ses of transporting interstate and intrastate passengers 
for hirej

c. continuing (under color of state law, city 
ordinance, state policy, custom, usage, or regulation) to 
arrest, harass, intimidate, threaten or coerce the plaintiffs, 
and members of their class, in connection with the exercise
of their federally protected right to use interstate and 
intrastate transportation facilities and services without 
segregation or discrimination against them solely because 
of race and color,

3 . Permanent injunction against the defendant JACKSON 
MUNICIPAL AIRPORT AUTHORITY, a public body corporate, is 
granted and defendant, its agents, employees, lesses, attor­
neys, successors and assigns, are hereby restrained from 
continuing to enforce by the posting of signs or otherwise 
a policy, practice, custom and usage of racial segregation 
in the public facilities and services of the Jackson Munici­
pal Airport including but not limited to the airport res­
taurant, rest rooms and drinking fountains.



748
(r -1484)

4. Permanent injunction against the defendant CICERO 
CARR, of Cicero*s Airport Restaurant, is granted and defen­
dant, his agents, employees, lessees, attorneys, successors 
and assigns are hereby restrained from continuing to main­
tain a policy, practice, custom and usage of refusing to 
serve Negroes except in racially segregated areas in the
eating facilities located in the concession leased from de- 
(R-1485)
fendant JACKSON MUNICIPAL AIRPORT AUTHORITY.

5- Permanent injunctions against the defendants CON­
TINENTAL SOUTHERN LINES, INC., and SOUTHERN GREYHOUND LINES 
are granted and said defendants, their agents, employees, 
lessees, attorneys, successors and assigns are hereby en­
joined from continuing to maintain and operate separate 
waiting rooms, rest rooms and lunch counters for Negro and 
white passengers in the bus depots, stations or terminals 
owned, operated or utilized by them in the State of Missis­
sippi, in connection with their intrastate and interstate 
passenger transportation services, and are further enjoined 
from posting signs on said bus depots, stations or terminals 
in the State of Mississippi designating certain facilities 
for the exclusive use of Negro or white passengers, and are 
further restrained from permitting such signs to be posted 
on said bus depots, stations and terminals in the State of 
Mississippi or placed on the sidewalks in front of or in 
back of said bus depots, stations or terminals, and are 
further restrained and enjoined from enforcing, encouraging,



749
(R-1485)
oi* permitting any segregation of passengers on buses or other 
vehicles operated by said defendants in the State of Missis­
sippi.

6. Permanent injunction against the defendant ILLINOIS
CENTRAL RAILROAD, INC.* is granted and said defendant, its
agents, employees, lessees, attorneys, successors and assigns
are hereby enjoined from continuing to maintain and operate
separate waiting rooms in depots, stations or terminals
owned, operated, leased or utilized by them in connection
with this defendant’s business of transporting interstate 
(R-1486)
and intrastate passengers throughout the State of Mississippi, 
and are further enjoined from posting any signs on said de­
pots, stations or terminals designating certain facilities 
for the exclusive use of Negro or white passengers or members 
of the public using said facilities, and are further res­
trained from permitting such signs to be posted by others 
either inside said depots, stations or terminals or on 
the sidewalk in front of or in back of or on the side of 
said depots, stations of terminals designating certain 
facilities as either for white persons or Negro persons.

7. Permanent injunction against the defendant JACKSON 
CITY LINES, INC., Is granted and said defendant, its agents, 
employees, lessees, attorneys, successors and assigns are 
hereby restrained from continuing or permitting any policy, 
practice, custom or usage of racial segregation in the 
carriers and facilities owned or operated by them, and



750
(R-1486)
defendant la further enjoined from continuing to post, or 
permit to be posted, signs designating facilities set aside 
for colored and white passengers in their carriers or other 
facilities.

8. Defendants will bear the costs of this action.

mam wmm Tmsmrirms

* * •> ■»