Answer in Opposition to Plaintiffs' Motion Requiring Defendants to Cooperate and Pay for a Desegregation Plan Prepared by Plaintiffs

    1st the

(Emtrt of %  Mnitxh £>tatT,0
Octobee Teem, 1961 

No.............

Samuel Bailey, et al.,

— v.
Appellants,

J oe T. P atterson, et al.,
Appellees.

OH APPEAL FBOM T H E  U N ITED  STATES DISTBICT COURT POE T H E  

SO U TH ERN  DISTRICT OF M IS SIS SIPP I 

JA CK SO N  DIVISION

JURISDICTIONAL STATEMENT

Constance Baker Motley 
J ack Greenberg 
J ames M. Nabrit, I I I  
Derrick A. Bell, J r.

10 Columbus Circle 
New York 19, N. Y.

R. J ess Brown 
1105% Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants

Michael Meltsner

Of Counsel



I N D E X
PAGE

Opinions Below ............................................................. 2

Jurisdiction ...............................................  2

Questions Presented ... ..................................................  5

Statutes Involved .....................    6

Statement of Pacts .................   7

The Questions Are Substantial
I. State Compelled Racial Segregation in the Use 

of the Public Transportation Facilities of Com­
mon Carriers Is Clearly Repugnant to the Con­
stitution and Laws of the United States ........... 22

II. The Principles of Equitable Abstention Invoked 
by the Court Below Were Inappropiiately Ap­
plied in This Case ................................................  25

III. Federal Judicial Power May Be Exercised to
Enjoin State Criminal Prosecutions During the 
Pendency of a Federal Action on the Same 
Subject Matter .............................    26

IV. The District Court Abused Its Discretion..........  30

Appendix

Opinion Below .......................................     la
Appendix to Opinion .......... .............................. . 17a

Statutes ............................................ .........17a, 21a
Dissenting Opinion .................................... .............  32a
Judgment Below ................................................ ..— 64a
Order of December 2, 1961 ................. .................. 65a
Ordinance of the City of Jackson ........................  67a



11
Table oe Cases

p a g e

Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) ..... 22
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ..... 22
Barrows v. Jackson, 346 U. S. 249 ..............      29
Boman v. Birmingham Transit Co., 280 F. 2d 531

(5th Cir. 1960) ...........................................................  22
Boynton v. Virginia, 364 U. S. 454 ................................ 22
Brown v. Board of Education of Topeka, 347 U. S. 483 22
Bryan v. Austin, 354 U. S. 933 .....................................  3,4
Burns v. United States, 287 U. S. 216 .......     30
Burton v. Wilmington Parking Authority, 365 U. S.

715 ............................................................................... 23

Coke v. Atlanta, 184 F. Supp. 579 (N. D. Ga. 1960) ..... 23

Douglas v. Jeanette, 319 U. S. 157 ...............................27, 28

Enelow v. New York Life Insurance Co., 293 U. S. 379 4
Ettleson v. Metropolitan Life Insurance Co., 317 U. S.

188 ............................... ...............................................  5
Evers v. Dwyer, 358 U. S. 202 ........................................ 28

Garner v. Louisiana, 30 U. S. L. Week 4070 .............. 23, 28
Gayle v. Browder, 352 U. S. 903 ............................ 22, 28, 29
Glen Oaks Utilities, Inc. v. City of Houston, 280 F. 2d

330 (5th Cir. 1960) ..................................................... 4
Gov’t & Civic Employees Organization Com. v. Wind­

sor, 347 U. S. 901, aff’d 116 F. Supp. 354 (N. D. Ala. 
1953) (Order reprinted at 146 F. Supp. 214) ..........  4

Harrison v. NAACP, 360 U. S. 167 ..................... ....... 26, 30
Henry v. Greenville Airport Commission, 284 F. 2d 

631 (4th Cir. 1960) 23



Ill
PAGE

Lewis v. Greyhound Corp. (M. D. Ala., C. A. No. 1724-n, 
November 1, 1961, not yet reported) ...... .................. 22

Monroe v. Pape, 365 U. S. 167................................... . 24
Morgan v. Virginia, 328 U. S. 373 ...............................  22
Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ......  27

NAACP v. Bennett, 360 U. S. 471................................. 3, 4
NAACP v. Alabama, 357 U. S. 449 ............................  29
Napue v. Illinois, 360 U. S. 264 ..... .............................  24

In Re Sawyer, 124 U. S. 200 .................................... . 26

Pierce v. Society of Sisters, 268 U. S. 510 .................  29

Thompson v. City of Louisville, 362 U. S. 199 ..........23, 28
Truax v. Raich, 239 U. S. 33, aff’g 219 Fed. 273 (D. 

Ariz. 1915) ... ................................ ........................... 26,29

Union Tool Co. v. Wilson, 259 U. S. 107............................  30
United States v. City of McComb (unreported, S. D.

Miss. C. A. No. 3215, November 21, 1961) .............. 22
United States v. John J. Fraiser, County Attorney 

(unreported, N. D. Miss. C. A. No. G-C-27-61, No­
vember 20, 1961) ....................................... ..............  23

Yick Wo v. Hopkins, 118 U. S. 356 .............................. 23
Ex Parte Young, 209 U. S. 123 ...................................  26

State Statutes

Section 2351 of the Mississippi Code (1942) ....1, 2, 5, 6, 7,19
Section 2351.5 ...... ...........................................1, 2, 5, 6, 8,19
Section 2351.7 ...... ............................................1, 2, 5, 6, 8,19



IV
PAGE

Section 7784 ...................................................1,2,5,6,9,19
Section 7785 ................  1,2,5,6,9,19
Section 7786 .......... ........................................1,2,5,6,9,19
Section 7786-01 .................................................1, 2, 5, 6,10,19
Section 7787 ..................... ,.......... ,................. 1,2,5,6,10,19
Section 7787.5 ................................... ............ 1, 2, 5, 6,10,19
Section 2087.5 ..................................................... 2, 3, 5, 6,19
Section 2087.7 ..................................................... 2, 3, 5, 6,19
Section 2089.5 .......................................,..............2, 3, 5, 6,19
Section 4065.3 ....................................... ........................_ 7
Ordinance of the City of Jackson, Mississippi, Janu­

ary 12, 1956 .................................................. 2,3,6,11,20

U nited States Statutes

28 U. S. C. §2281 ... 
28 U. S. C. §2283 ... 
28 U. S. C. §2284 ... 
28 U. S. C. §1253 ... 
42 U. S. C. §1983 ... 
49 U. S. C. §3(1) ... 
49 U. S. C. §316(d)

... 2 

.21, 27 

. . .  2 

... 3

... 27 

. . .  6 

... 6

Code oe F edekal Regulations

49 C. F. R., Part 180, Sections 180(a)(1) et seq. 23



I n  t h e

Ikipnmtp ( ta r t  of %  Staten
No.............

October T erm, 1961

Samuel Bailey, et al.,
Appellants,—v.—

J oe T. P atterson, et al.,
Appellees.

on appeal from the united states district court foe the
SO U TH ERN  DISTRICT OF M ISSISSIPPI 

JA CKSO N DIVISION 

----------------------  ---------------- —---------

JURISDICTIONAL STATEMENT

Appellants appeal from the judgment of the United 
States District Court for the Southern District of Mis­
sissippi, Jackson Division, entered on November 17, 1961, 
which denied appellants’ application for preliminary in­
junctions against the Attorney General of the State of 
Mississippi, the City of Jackson, Mississippi, the Mayor, 
Commissioners and Chief of Police of the City of Jackson, 
the Jackson Municipal Airport Authority, the operator of 
a restaurant under a lease from the Jackson Municipal 
Airport Authority, and several common carriers, namely, 
Continental Southern Lines, Inc., Southern Greyhound 
Lines a division of the Greyhound Corporation, Illinois 
Central Railroad, Inc., and Jackson City Lines, Inc. Ap­
pellants sought injunctive relief to restrain appellees from 
continuing to enforce racial segregation on transportation 
facilities pursuant to Sections 2351, 2351.5, 2351.7, 7784, 
7785, 7786, 7786-01, 7787 and 7787.5 of the Code of Mis-



2

sissippi of 1942. Appellants also sought to restrain ap­
pellee law enforcement officials from continuing to enforce 
such segregation by enforcing an ordinance of the City of 
Jackson adopted January 12, 1956 and by acting under 
color of Sections 2087.5, 2087.7 and 2089.5 of the Missis­
sippi Code of 1942. Appellants submit this statement to 
show that the Supreme Court of the United States has 
jurisdiction of this appeal and that substantial questions 
are presented.

Opinions Below

The majority opinion of Judges Mize and Clayton and 
the dissenting opinion of Judge Rives are not yet re­
ported and are reprinted in the Appendix hereto at pages 
la, 32a, infra.

Jurisdiction

This suit was brought in the United States District 
Court for the Southern District of Mississippi, Jackson 
Division, under 28 U. S. C. Sections 2281, 2284 to secure 
preliminary and final injunctions against the Attorney Gen­
eral of the State of Mississippi, the City of Jackson, Mis­
sissippi, the Mayor, Commissioners and Chief of Police 
of the City of Jackson, the Jackson Municipal Airport Au­
thority, the operator of a restaurant under a lease from 
the Jackson Municipal Airport Authority, and several com­
mon carriers, namely, Continental Southern Lines, Inc., 
Southern Greyhound Lines a division of the Greyhound 
Corporation, Illinois Central Railroad, Inc., and Jackson 
City Lines, Inc. Appellants sought injunctive relief to 
restrain the appellees from continuing to enforce racial 
segregation pursuant to Sections 2351, 2351.5, 2351.7, 7784, 
7785, 7786, 7786-01, 7787 and 7787.5 of the Code of Mis­
sissippi of 1942. Appellants also sought to restrain ap-



3

pellee law enforcement officials from continuing to enforce 
racial segregation by enforcing an ordinance of the City 
of Jackson adopted January 12, 1956 and acting under 
color of Sections 2087.5, 2087.7 and 2089.5 of the Missis­
sippi Code of 1942. The order of the District Court was 
entered on November 17, 1961 and Notice of Appeal was 
filed in that court on November 21, 1961. On December 5, 
1961, appellants presented to this Court an application for 
a stay injunction pending appeal. On December 18, 1961, 
this application was denied.

The jurisdiction of the Supreme Court to review this 
decision by direct appeal is conferred by 28 IT . S. C. Sec­
tion 1253 which provides:

“Except as otherwise provided by law, any party 
may appeal to the Supreme Court from an order 
granting or denying, after notice and hearing, an in­
terlocutory or permanent injunction in any civil action, 
suit or proceeding required by any Act of Congress 
to be heard and determined by a district court of three 
judges.”

The following decisions sustain the jurisdiction of the 
Supreme Court to review the judgment on direct appeal 
in this case: Bryan v. Austin, 354 U. S. 933. There this 
Court took jurisdiction of and vacated a similar order;1 
likewise, in NAACP v. Bennett, 360 U. S. 471, this Court

1 The Order in the Bryan ease, which is on file in this Court, 
No. 931, October Term, 1956, provided:

“ . . .  it is ordered that the case be retained and remain pending 
upon the docket hut that proceedings therein be stayed to per­
mit the plaintiffs a reasonable time for the exhaustion of state 
administrative and judicial remedies, after which such further 
proceedings, if any, will be had by this court as may then 
appear proper in the premises.” (Jurisdictional Statement, 
page 43a.) There was no statement that the injunction was 
“denied.”



4

vacated a similar order, and remanded the case to the trial 
court.2

There appears to be no question but that stay orders 
issued by three judge district courts applying the absten­
tion doctrine in cases where injunctive relief has been 
sought are directly appealable to this Court.3 Cf. Gov’t & 
Civic Employees Organization Com. v. Windsor, 347 U. S. 
901, aff’d 116 F. Supp. 354 (N. D. Ala. 1953) (Order re­
printed at 146 F. Supp. 214, 215).

While the order in Windsor, supra, which was affirmed 
here, did recite that “the final relief for which plaintiffs 
prayed in their complaint is hereby denied,” before reciting 
that jurisdiction was retained pending state court con­
struction of the statute, it is obvious that the actual legal 
operation and effect of that order was the same as the 
effect of the abstention orders in the Bryan case, supra, 
the Bennett case, supra, and in the instant case, none of 
which contained the words injunction “denied”. See also 
Glen Oaks Utilities Inc. v. The City of Houston, 280 F. 2d

2 The Order in the Bennett case is on file in this Court as No. 757, 
October Term 1958, and it provided:

“On this day, pursuant to the opinion of the Court rendered by 
Judge Sanborn, it is O r d e r e d , That the motion for a stay of 
proceedings filed herein by the defendant, Bruce Bennett, 
Attorney General of the State of Arkansas, and joined in by 
certain other defendants, be, and the same is, granted, and 
that this Court will retain jurisdiction of this cause until 
efforts to obtain an appropriate adjudication in the state courts 
have been exhausted.”

3 The only stay orders issued by three-judge courts which might 
not be appealable are those issued pursuant to Title 28, §2284 
requiring a stay in those instances where the state courts have 
stayed enforcement of statutes attacked as unconstitutional pend­
ing a state court test, and perhaps also stay orders which are merely 
a procedural step (for example a short continuance) in the exer­
cise of the inherent power of a court to control the progress of a 
cause. Cf. Enelow v. New York Life Insurance Co., 293 TJ. S. 379, 
382.



5

330, 333 (5th Cir. 1960); Ettelson v. Metropolitan Life Ins. 
Co., 317 U. S. 188, 192.

Questions Presented

The following questions are presented by this appeal:
1. Whether the court belowq in an action to enjoin en­

forcement of Mississippi statutes and an ordinance of the 
City of Jackson, requiring racial segregation on common 
carriers and in common carrier waiting room and rest 
room facilities as contrary to the Fourteenth Amendment 
to the United States Constitution, erred in refusing to 
issue a preliminary injunction.4

2. Whether the court below erred in refusing to enjoin 
the restaurant-lessee in the Jackson Municipal Airport 
from refusing to serve and from segregating Negroes as 
contrary to the Fourteenth Amendment!

3. Whether the court below erred in refusing to enjoin 
the Jackson Mississippi Airport Authority, Inc., from con­
tinuing to enforce, as contrary to the Fourteenth Amend­
ment a policy, practice, custom, and usage of segregation, 
including but not limited to the airport restaurant, rest 
rooms, and drinking fountains!

4. Whether the court below erred in refusing to enjoin, 
as contrary to the Fourteenth Amendment 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

4 Mississippi Code (1942) Title 11, §§2351, 2351.5 and 2351.7, 
and Title 28, §§7784, 7785, 7786, 7786-01, 7787 and 7787.5, ap­
pended hereto at pages 21a et seq., infra.



6

of the Mississippi Code (1942) and all future arrests for 
purportedly violating the state’s breach of the peace and 
disorderly conduct statutes of persons peacefully using 
transportation facilities in violation of Jackson and Mis­
sissippi segregation requirements?5

5. Whether the court below erred in refusing to enjoin 
appellee public officials from, contrary to the Fourteenth 
Amendment, posting signs, designating facilities for colored 
passengers exclusively and facilities for white passengers 
exclusively, on doors, walls, sidewalks, and other places 
connected with stations, terminals, depots, and other pas­
senger facilities and services?

6. Whether appellants herein also have been denied 
rights secured by the Commerce Clause, Article 1, Section 
8, Clause 3 of the United States Constitution and by the 
Interstate Commerce Act, Title 49 United States Code, 
Section 3(1) and 316(d).

7. Whether the court below erred in applying the doc­
trine of equitable abstention to the facts of this case?

Statutes Involved

Sections 2087.5, 2087.7, 2089.5, 2351, 2351.5, 2351.7, 7784, 
7785, 7786, 7786-01, 7787, 7787.5 of the Code of Mississippi, 
1942, reprinted herein at pages 21a et seq., infra. An 
ordinance of the City of Jackson, adopted January 12, 
1956 and recorded in Minute Book “FF,” page 149, is 
reprinted at page 67a, infra.

5 Mississippi Code (1942) Title 11, §§2087.5, 2087.7 and 2089.5 
appended hereto at pages 17a et seq., infra.



7

Statement o f Facts

M ethods by which M ississipp i and the C ity o f Jackson  
en force  segregation  in  tran sporta tion

Mississippi has required and enforced racial segregation 
in intrastate and interstate transportation and related 
terminal facilities by a diversified arsenal of weapons. The 
overriding state policy is expressed in 17 Miss. Code Ann., 
Section 4065.3:

The entire executive branch of the government of 
the State of Mississippi, and of its subdivisions, and 
all persons responsible thereto, including the governor 
. . . mayor . . . chiefs of police, policemen . . .  be and 
they and each of them, in their official capacity are 
hereby required, and they and each of them shall give 
full force and effect in the performance of their offi­
cial and political duties, to the Eesolntion of Interposi­
tion . . . and are further directed and required to pro­
hibit, by any lawful, peaceful and constitutional means, 
the implementation of or the compliance with the In­
tegration Decisions of the United States Supreme Court 
of May 17, 1954 . . . and to prohibit by any lawful, 
peaceful, and constitutional means, the causing of a 
mixing or integration of the white and Negro races in 
public schools, public parks, public waiting rooms, 
public places .of amusement, recreation or assembly in 
this state, by any branch of the federal government . . .

More specific Mississippi statutes exclusively govern 
transportation. Section 2351, Miss. Code (Segregation on 
railroads):

If any person or corporation operating a railroad 
shall fail to . . . secure separate accommodations for



8

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 . . .

Section 2351.5 (Segregation in rail and bus terminals):
Every railroad company, bus company or other com­

mon carrier for hire owning, maintaining or operating 
a passenger depot. . . shall cause to be constructed and 
maintained . . . two . . . rest rooms . . . : “Rest Room 
white female only in Intrastate Travel” and likewise 
two . . . rest rooms . . . for colored passengers . . .

Section 2351.7 (Segregation of intrastate passengers in 
rail, bus, air terminals):

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 be 
guilty of a misdemeanor . . .

2. No white person shall enter, frequent, occupy or 
use the colored waiting rooms of any depot, bus sta­
tion or terminal when such waiting room is marked 
in bold letters as required by law and no colored per­
son shall enter, frequent, occupy or use the white wait­
ing room of any depot, bus station or terminal when 
same is marked in bold letters as required by law . . .

3. No action . . . 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 viola­
tion of this act. . . .



9

Section 7784 (Segregation on railroads):
Every railroad carrying passengers in this state 

shall provide equal but separate accommodations for 
the white and colored races by providing two or more 
passenger cars for each passenger train, or by dividing 
the passenger cars by a partition to secure separate 
accommodations. . . .

Section 7785 (Segregation on railroads, buses, movable 
signs):

All persons or corporations operating street rail­
ways and street or municipal buses . . . shall provide 
equal but separate accommodations for the white and 
colored races.

Every common carrier by motor vehicle of pas­
sengers in this state . . . shall divide its passengers 
by the use of an appropriate sign 4 x 9  inches, for the 
purpose of, and in a manner that will suitably provide 
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 parti­
tion extended 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 . . . 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. . . .

Section 7786 (Operators empowered to assign seats):
The operators of such street cars and street buses 

and motor vehicles . . . shall have power and are re­
quired to assign each passenger to the space or com­
partment used for the race to which such passenger 
belongs.



10

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 . . .

Section 7786.01 (Penalties):
Every person or corporation operating street rail­

ways and street or municipal buses . . . 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 dollars ($25.00) for each offense. . . .

Section 7787 (Penalties):
All officers and directors of street railway companies 

who shall refuse or neglect to comply . . . shall be 
deemed guilty of a misdemeanor . . .

Section 7787.5 (Segregated depots, signs):
. . .  in such depots . . . there shall be constructed . . . 

for the white intrastate passengers a separate waiting 
or reception room, on each entrance to which shall be 
painted or shown in bold letters the following: “White 
Waiting Room, Intrastate Passengers” ; and in such 
depot, bus station or terminal there shall be con­
structed, provided and maintained a separate waiting 
or reception room for the colored intrastate passen­
gers, on each entrance to which shall be painted or 
shown in bold letters the following: “Colored Waiting 
Room Intrastate Passengers.”

2. Any common carrier of passengers . .. which fails 
or refuses to comply .. . shall be liable in the penal sum 
of $1,000.00 (one thousand dollars) per day for each 
day of such failure. . . .



11
in addition to the state statutes, tlie City of Jackson 

also has enacted an ordinance requiring segregation in car­
rier terminals. The Jackson ordinance (Plaintiffs’ Exhibit 
No. 31, R. 430) is based upon the state transportation segre­
gation statute of 1956 (R. 445) and requires:

All common carriers of persons which have hereto­
fore provided and maintained separate waiting rooms 
. . . are hereby required to continue to maintain similar 
but separate waiting rooms . . .

It shall be unlawful for any person of the white race 
to use . . . accommodations . . . provided for . . . per­
sons of the colored races only.

It shall be unlawful for any person of the colored 
races to use . . . accommodations provided for . . . the 
white race only.

The policy of the City of Jackson is, in the words of the 
Mayor (R. 441), one of segregation, but not described as 
such: “to bring happiness and peace and prosperity to 
everyone within our city. That has been done by a separa­
tion of the races, not segregation. We never refer to it as 
segregation.” The city ordinance, he explained, “was pat­
terned in 1956” on the state law (R. 442). The ordinance 
and the statute reflect the City of Jackson’s policy (R. 442, 
443, 444).

The Attorney General of Mississippi testified that “if 
conditions arise to such a point that I thought it was neces­
sary to bring them [the state segregation laws] into effect. 
. . . ” he would enforce them (R. 515; and see R. 522-523), 
but “I have not prosecuted anybody under those statutes; 
I haven’t threatened to prosecute anybody” (R. 505-506). 
He has never announced or written an opinion recognizing 
the unconstitutionality of the segregation laws (R, 527-528). 
Other means are employed, however, to perpetuate segrega-



12

tion. For, as the Mayor of Jackson testified “there can be 
ordinances and there can be laws, but actual operation, ac­
tual interpretation and the actual performance under those 
laws are the controlling thing” (E. 444). “Since I have been 
Mayor I do not recall one incident where there has been 
an arrest under this ordinance or any segregation ordi­
nance” (E. 442).

State and municipal segregation policy have been im­
plemented in these ways: Police department orders mani­
fested in signs—“WAITING- EOOM FOE WHITE ONLY; 
WAITING EOOM FOE COLOBED ONLY; BY OEDEE 
OF THE POLICE DEPAETMENT”—posted on the side­
walks outside terminals by the police direct passengers to 
waiting room facilities for their respective races (E. 218 
(railroad station), E. 259 (Greyhound), E. 277 (Trail- 
ways)). The interstate carriers admittedly operate under 
state and local segregation law in their terminals and, in 
addition to Police Department signs, have signs of their 
own stating “White Waiting Boom—Intrastate Passen­
gers” and “Colored Waiting Boom—Intrastate Passengers” 
(E. 186 (railroad station), E. 258, 267-268 (Greyhound), 
E. 276-278 (Trailways); with respect to the airport see 
E. 206-207; 309-310).

Aboard the local buses movable signs, four by nine inches, 
are suspended from the top as on a curtain traverse rod 
(E. 606) as required by statute. The drivers have been 
instructed that if they pick up more Negroes than whites 
they should move the sign towards the front; if more whites 
than Negroes, to the rear (E. 605). Should a Negro sit 
out of place the driver is directed to stop the bus (E. 300). 
Otherwise he would face arrest (E. 616; and see E. 267, 
287, 298).

The carriers have been obedient to the statutes, ordi­
nances, and municipal and state policy under apprehension



13

that they will be enforced. One local Greyhound official 
wrote to the President of the Greyhound Corporation:

“As you know the City placed a sign at the front of 
our Terminal designating the white waiting room, 
which was also done at Trailway and Railroad Stations 
at the same time and if the occasion should occur where 
the police does order the passengers that certain wait­
ing room and they refuse I am sure they would be 
arrested as it happened several months ago at the Rail­
road Station.

“As you know Mississippi has a law which requires 
us to place signs over our waiting rooms designating 
white and colored waiting rooms which we of course 
have at all our stations in Mississippi and I feel that 
the N.A.A.C.P. is hitting at these signs which read 
‘WHITE OR COLORED WAITING ROOMS INTRA­
STATE PASSENGERS’.

“Since I have been in Jackson Mississippi which has 
been ten years we have never had any trouble with 
the local police treating our colored passengers rough, 
in fact it is very seldom that we see a police in the 
Terminal during the day but they do drop around at 
night on their regular rounds but bother no one unless 
they are out of line.

“I will say this, if the N.A.A.C.P. does start using 
the waiting rooms at any Terminal in Jackson Missis­
sippi there will be plenty of trouble, because the police 
department has the backing of the City Officials and 
it appears they will go all the way to keep the races 
segregated in Mississippi.” (Emphasis supplied.) (R. 
204; Plaintiffs’ Exhibit No. 6).

If, however, the statutes were to be declared unconstitu­
tional and their enforcement enjoined, the carriers aver 
that they would cease segregating (R. 677, 690, 697).



14

But, while the carriers and police enforce state law and 
policy, and while some Negroes who have made an effort 
to enjoy their right to non-segregated travel facilities have 
been subjected to physical violence under color of law and 
by private citizens (R. 316, 378), the principal mode for 
effecting state and municipal policy has been to arrest 
persons asserting these rights and to prosecute them for 
breach of the peace. Such arrests and prosecutions ante­
dated the “Freedom Rides” and took place on local buses 
as well as with respect to interstate facilities after the 
“Freedom Rides,” as appears infra.

Breach of the peace arrests have been effected pursuant 
to a policy worked out between the Attorney General of 
Mississippi and local law enforcement officers. The At­
torney General testified:

“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 fol­
lowed. They could have been easily avoided had your 
clients only wanted them avoided . . .” (R. 521).

The breach of the peace arrests were effected even though 
the only breach that occurred was in Mississippi’s policy 
of segregation in travel. In connection with such arrests 
on a local Jackson bus a driver testified:

“Q. Were there any white persons on 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? A. Not 
a bit.



15

Q. Was there any disturbance outside the bus? A. 
No, not any” (R. 610).

In connection with the arrests in the various interstate 
terminals a police officer testified:

“Q. What were the Negroes doing that you arrested 
in 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? A. I never found any of 

them armed.
Q. Were they loud? A. No.
Q. Did they use any curse words? A. No.
Q. Did they strike anybody? A. No.
Q. Did they threaten anybody? A. No.
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’? A. Well, as I stated 
earlier, we had advance notice that they were coming 
to Jackson to create an incident similar to what had 
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.

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” (R. 532- 
534).



16
P arties

Defendants. The defendants are the City of Jackson 
(which requires segregation in travel and terminal facili­
ties through its ordinances and by its police department 
orders and whose law enforcement officers, chief of whom 
is its Mayor (R. 431-432) are empowered to enforce the 
state segregation laws and the state breach of the peace 
statutes which, on this record, systematically are the means 
by which segregation is effectuated in Jackson), the Mayor 
of the City of Jackson and two of its Commissioners; the 
Jackson Municipal Airport Authority (R. 329), which is 
within the city limits of Jackson (R. 334), and the restau­
rant of which is leased on a month to month basis—which 
extends a prior lease—to the defendant restaurant oper­
ator, Cicero Carr (R, 370, 372; Plaintiff’s Exhibit 29); 
Jackson City Lines, a Mississippi corporation which oper­
ates local buses under franchise granted by the City of 
Jackson (R. 451); the Illinois Central Railroad, Conti­
nental Southern Lines (Trailways), the G-reyhound Cor­
poration, all of which maintain terminals in the City of 
Jackson for the serving of interstate and intrastate pas­
sengers who use their respective trains and buses; and the 
Attorney General of Mississippi. The United States was 
represented as amicus curiae.

Plaintiffs. The named plaintiffs are residents of Mis­
sissippi and Negroes who have used the various travel 
facilities involved. Plaintiff Broadwater has used the Jack- 
son City Lines, Illinois Central Railroad, Greyhound Buses, 
Continental Trailways Buses, and the Jackson Municipal 
Airport (R. 181, 206). He has been segregated in the use 
of these various carriers and their terminals (R. 185-189, 
192-194, 195, 206, 207, 208-210) but made no effort to vio­
late the segregation statutes, ordinance, or police depart-



17

ment orders before bringing this suit and was never 
arrested or prosecuted (R. 215).

Plaintiff Broadwater as early as 1957 wrote to the car­
riers, complaining of their segregation policy, but to no 
avail (Plaintiffs’ Exhibits Nos. 1, 2, 3, 4, 5, 6, 7, 8). Indeed, 
his complaint provoked Plaintiffs’ Exhibit No. 6, quoted 
in part, supra (p. 13).

Plaintiff Jacob has used the Greyhound Buses, Illinois 
Central Railroad, Trailways Buses, and the Jackson City 
Lines. He has been directed by appropriate signs posted 
by the carriers and by the order of the police department 
to confine himself to the use of facilities for Negroes only 
(R. 220-225). Like plaintiff Broadwater, he has tested the 
validity of segregation only by this suit and has not sub­
mitted to arrest and prosecution (R. 226). Should this 
suit, however, eventuate in a judgment according him the 
right to employ nonsegregated travel accommodations, he 
will exercise the right (R. 230).

Plaintiff Bailey also has traveled Trailways Buses, Illi­
nois Central Railroad, Greyhound Buses, and the Jackson 
City Lines, and he too has been directed by the signs 
posted by the carriers as well as those posted by the police. 
So far as arrest and conviction for violating segregation 
law is concerned, his situation is the same as that of the 
other named plaintiffs (R. 230-237).

Numerous witnesses, members of the class (see Rule 23 
(a)(3) Federal Rules Civil Procedure), on whose behalf 
this action is prosecuted, testified concerning the means 
by which racial segregation has been imposed upon them 
and others in the use of the various travel facilities which 
are the subject of this suit. Witness Evers testified that 
he uses the airport fifteen to twenty times a year and that 
segregation was imposed upon him by means of various



18
signs in the restrooms, at the fountains, and at the restau­
rant (R. 312-315), that on a Trailways Bus when he did 
not move from a front seat the bus was stopped, the police 
were summoned and later he was physically assaulted by 
a private citizen (R. 316); that he had witnessed other 
Negroes board the bus and that they were ordered to the 
back (E. 324).

Witness Grayson testified that on April 19, 1961, she was 
arrested for breach of the peace for sitting on the front 
seat on a Jackson City bus (E. 342, 347, 353).

Witness Armstrong testified that on June 23, 1961, he 
was arrested for entering the white intrastate passenger 
waiting room of the Trailways Bus Company. He was 
convicted of breach of the peace, although there was neither 
fighting, loud talk, cursing or any other disturbance in­
volved (E. 353, 358-361, 364, 367).

Witness Frazier testified that he was ordered by the 
driver to the rear of a Trailways bus in Columbus, Mis­
sissippi but declined to move (E. 376), and in Winona, 
Mississippi was beaten to unconsciousness by the sheriff 
and his deputies (R. 378) who told him that he had no 
business sitting in the front of the bus (E. 379). Frazier 
was charged with disturbing the peace (E. 381-383).

Witness O’Neal testified that while she was riding a 
Greyhound bus between Jackson and Clarksdale, Labor 
Day 1961, she was asked by the driver to move to the 
Negro section and a police officer removed her and took 
her to the police station where she was kept four hours, 
then released (R. 397-398,402-403).

Witness Jones testified that in riding the Illinois Central 
from Clarksdale to Memphis, August 23, 1961, she was ar­
rested for using the white waiting room (E. 410-415).



19

Other witnesses testified similarly to the enforcement of 
segregation on carriers and in terminals (R. 418, 423).

Plaintiffs introduced into evidence Exhibits Nos. 32, 33, 
34, and 35, four volumes of approximately 190 affidavits 
and judgments of breach of the peace convictions of other 
members of the class on whose behalf this suit seeks relief, 
persons arrested in waiting rooms of defendant carriers 
(R. 569). These warrants are of arrests described in the 
testimony of Captain of Police J. L. Ray, who discussed 
them in response to the following question: “I would like 
to . . . ask you if in the last six months you have arrested 
any Negroes in that waiting room?” (R. 532 and see 536, 
541-542, 544). He described the arrestees conduct as en­
tirely peaceable. See extract from his testimony, supra, 
p. 15.

The named plaintiffs and various witness members of 
the class were aware of the policy of the State and 
municipality to arrest and prosecute for breach of the 
peace persons who violate segregation statutes, ordinances, 
and customs. Plaintiff Bailey personally witnessed a co­
worker arrested for sitting in the white section of a bus 
(R. 250 and see R. 346). Others, as described, supra, were 
themselves arrested.

T he class on behalf o f  w h om  this su it seeks re lief

The original complaint filed on June 9, 1961, prayed 
for preliminary and permanent injunctions enjoining de­
fendants from:

a) continuing to enforce certain statutes of the State 
of Mississippi requiring racial segregation on common car­
riers, in waiting rooms used by common carriers, and rest 
room facilities maintained by common carriers, i.e., Title 
11, Sections 2351, 2351.5 and 2351.7, and title 28, 7784, 
7785, 7786, 7786-01, 7787, 7787.5, Mississippi Code An-



20

notated (1952) and any other statute of the State of Mis­
sissippi requiring or permitting such segregation.

b) continuing to enforce ordinances of the City of Jack- 
son, Mississippi, requiring racial segregation in waiting 
rooms and rest room facilites owned and/or maintained 
and utilized by common carriers.

c) continuing to enforce a policy, practice, custom, regu­
lation or usage, under color of state law of 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 utilized by carriers in 
connection with their businesses of transporting inter­
state and intrastate passengers for hire.

d) continuing to enforce a policy, practice, custom and 
usage of segregation in the facilities and services of the 
Jackson Municipal Airport including but not limited to the 
airport restaurant owned and operated by the City of 
Jackson or owned and leased by the City of Jackson to 
a private individual for the benefit of airline passengers 
and the general public.

e) continuing to arrest, harass, intimidate, threaten or 
coerce the plaintiffs and members of their class in connec­
tion 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.

The amended complaint contained a similar prayer with 
an additional paragraph “f” :

f) continuing to post, or permit to be posted, signs 
designating facilities set aside for colored and white pas­
sengers on the doors, walls, sidewalks or other places con­
nected with or in the terminals, depots, stations, rest rooms,



21

waiting rooms, lunch rooms or any other passenger facility 
or service.

Thus the original and amended complaints were broad 
enough to cover all of the methods employed by the state 
and city to enforce segregation—all of which methods 
threaten the named plaintiffs. At the hearing, however, 
with respect to enjoining state court prosecutions, plaintiffs 
pressed only for an injunction against the proceedings 
commenced subsequent to the time federal jurisdiction at­
tached in this suit (under the exception contained in 28 
U.S.C., §2283)6 which was on June 9, the date of the filing 
of the complaint. The class, therefore, consists of persons7 
threatened by the segregation statutes or ordinances and 
practices (including arrest and prosecution for breach of 
the peace) of the State and the City of Jackson and who 
have been subjected to segregation by the carriers and 
their terminals. The named plaintiffs fall in all of these 
categories.

They have been and are continuously threatened by all 
the techniques of imposing segregation employed by the 
City of Jackson and State of Mississippi in all of the 
travel facilities and terminals involved in this case. While 
they have not themselves been arrested and prosecuted 
the threat against them is immediate. Indeed, as of the 
filing of this suit, those persons arrested and prosecuted 
after June 9, had—like the named plaintiffs—themselves 
not been arrested and prosecuted.

6 Section 2283 states that “a court of the United States may 
not grant an injunction to stay proceedings in a state court,” ex­
cept “where necessary in aid of its jurisdiction, or to protect or 
effectuate its judgment.”

7 The original complaint sought relief only on behalf of 
“Negroes” who were being segregated. The evidence demonstrated, 
however, that segregation was being enforced against white per­
sons, especially those associated with Negroes (R. 318).



If the status (as a threatened but not arrested person) 
of any of the members of the class has been changed, it 
has been changed by the appellees state and city in the 
course of making arrests and pressing prosecutions after 
June 9, which impinge on the subject matter of this suit 
over which a federal court already had taken jurisdiction.

THE QUESTIONS ARE SUBSTANTIAL

I. State Compelled Racial Segregation in  the Use o f  
the Public Transportation Facilities o f Common 
Carriers Is Clearly Repugnant to the Constitution  
and Laws o f the United States.

The racial segregation laws of the State of Mississippi 
which have been attacked as unconstitutional and which are 
set forth in Appendix II to the opinion of the majority 
below, page 21a, infra, are clearly invalid under applicable 
federal constitutional and statutory law. The invalidity of 
state laws requiring racial segregation in interstate and 
intrastate commerce is so clearly established by prior deci­
sions of this Court as not to present any real issue. Gayle 
v. Browder, 352 U. S. 903, affirming 142 F. Supp. 707 (M. D. 
Ala. 1956); Brown v. Board of Education, 347 U. S. 483; 
Morgan v. Virginia, 328 U. S. 373; Boynton v. Virginia, 364 
U. S. 454; Baldivin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) 
and 287 F. 2d 750 (5th Cir. 1961); Boman v. Birmingham 
Transit Co., 280 F. 2d 531 (5th Cir. 1960); Lewis v. Grey­
hound Corp. (M. D. Ala. C. A. No. 1724-N, November 1, 
1961, not yet reported). Indeed, Mississippi’s segregation 
statutes were recently declared invalid in relation to an 
interstate carrier’s facilities in McComb, Mississippi, 
United States v. City of McComb (unreported, S. D. Miss. 
C. A. No. 3215, November 21, 1961) (Circuit Judges Tutle 
and Rives wrote the majority opinion; District Judge Mize



23

dissented). There is a similar recent decision affecting 
Greenville, Mississippi: United States v. John J. Fraiser, 
County Attorney (unreported, N. D. Miss. C. A. No. G-C- 
27-61, November 20, 1961) (Circuit Judges Tutle and Eives 
were in the majority; District Judge Clayton dissented). 
The last mentioned cases are actions brought by the United 
States to implement a recent order of the Interstate Com­
merce Commission relating to segregation in motor carrier 
facilities. I. C. C. Docket No. MC-C-3358, decided Septem­
ber 22, 1961; see Regulations adopted in 49 C. F. R., Part 
180, Sections 180(a)(1), et seq.

Racial segregation by the Jackson Municipal Airport 
Authority and its restaurant-lessee is clearly unconstitu­
tional “state action”. Burton v. Wilmington Parking Au­
thority, 365 U. S. 715; Henry v. Greenville Airport Commis­
sion, 284 F. 2d 631 (4th Cir. 1960); Coke v. Atlcmta, 184 F. 
Supp. 579 (D. C. N. D. Ga.).

Enforcement of segregation by means of arrests and 
prosecutions for breach of the peace where the only breach 
is of segregation law or custom and defendants’ only wrong 
was “their presence” (R. 534), has been held a violation 
of the Fourteenth Amendment by this Court in Gamer v.
Louisiana,----- U. S .------ , 30 U. S. L. Week 4070, Dec. 11,
1961, and see Thompson v. City of Louisville, 362 U. S. 199.

The actions of the appellee law enforcement officials in 
enforcing segregation in public transportation facilities 
are equally in violation of the Constitution and laws of the 
United States. State officers can no more enforce racial 
discrimination through their administration of laws, which 
do not require such discrimination, than they can do so in 
obedience to a legislative mandate to discriminate. Yick Wo 
v. Hopkins, 118 U. S. 356.

It is settled that police officers acting to deny equal pro­
tection of the laws, with or without the approval of state



24

law, violate the Fourteenth Amendment. Monroe v. Pap-e, 
365 U. S. 167. Public prosecutors are likewise subject to the 
inhibitions of the Fourteenth Amendment in their actions 
in conducting criminal cases. Napue v. Illinois, 360 U. S. 
264.

Appellants seek to enjoin the continuation of the scheme 
or program of the appellee officers of the City of Jackson 
to enforce segregation by making arrests and conducting 
a series of vexatious multiple criminal prosecutions of per­
sons who refuse to submit to their segregation require­
ments. This scheme and plan is an obvious violation of the 
Fourteenth Amendment and federal statutory rights of 
appellants and the members of the class they represent, 
and should have been enjoined for the reasons stated in the 
dissenting opinion of Judge Rives.

It should be reemphasized, particularly in the light of 
the majority’s disposition of the case below, that there is 
no claim by appellants here that either of the disorderly 
conduct and breach of the peace laws, under which the 
prosecutions of persons who have refused to obey the segre­
gation orders are brought, is unconstitutional on its face. 
Neither is there any request for, or issue necessitating, a 
construction of these laws. For the purposes of appellants’ 
claim here there is no need even to determine whether, as 
a matter of state law, the disorderly conduct laws are appli­
cable to the conduct of the persons arrested and prosecuted 
by the appellees. No matter how this question is ultimately 
decided, the members of appellants’ class charged and 
prosecuted in furtherance of appellees’ plan of arrest and 
prosecution will have been denied constitutional rights by 
having been subjected to the vexatious and unwarranted 
arrests and prosecutions. The evil which appellants seek 
to enjoin is the systematic use of the processes of the crim­
inal law to arrest and prosecute every person who violates



25

appellees’ segregation orders. Even if the persons arrested 
and prosecuted by appellees are eventually vindicated in 
the state courts (or in this Court on review of the criminal 
prosecutions), they will have been already subjected to the 
discriminatory scheme of penalizing persons who refuse 
to obey the segregation orders.

II. The Principles o f E quitab le  A bstention Invoked 
by the C ourt Below W ere In ap p ro p ria te ly  A pplied  
in  This Case.

Appellants submit that the reliance by the court below 
upon principles of equitable abstention pending adjudica­
tion of the issues presented in this case by state courts, 
was not required or authorized by the applicable precedents. 
In brief, appellants submit that since there is no claim of 
the invalidity of the disorderly conduct laws involved here, 
and no necessity for their construction, the principle of 
abstention is inapplicable. This case involves no “prelimi­
nary guess” as to the meaning of the disorderly conduct 
laws, but rather, a claim that state officials are arresting 
people and prosecuting them to enforce segregation. Wheth­
er the disorderly conduct law does or does not authorize 
this conduct of the state officials is not decisive of the claim 
for relief from segregation enforced by the harassment 
program of appellees. This conduct is proscribed by the 
Constitution in either event. With regard to the state’s 
segregation laws, the equitable abstention doctrine is equal­
ly inapplicable, for, as Judge Hives said below:

“ . . . 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 privilege of



26

so declaring. Such, a rule would be, not abstention, but 
abdication of our judicial function.” (Emphasis in 
original.)

The denial of preliminary injunctive relief to avoid irrep­
arable harm to the appellees’ class (consisting of both 
the continued clear violation of their constitutional rights 
through maintenance of the segregation requirement, and 
the great injury suffered because of the continuation of 
the criminal prosecutions) was improper, even assuming 
that there was a need for state court clarification of an issue 
of state law. The court below relied heavily upon Harri­
son v. N. A. A. C. P., 360 U. S. 167, to support its abstention. 
But in the Harrison case both this Court and the trial court 
abstained only after being assured that the criminal laws 
there involved would not be enforced, and that plaintiffs 
would not suffer further injury, pending clarification of 
the state law issues (360 U. S. at 179; 159 F. Supp. 503, 534). 
And here, unlike Harrison, the actual prosecutions are 
proceeding against over 300 individuals. Harrison involved 
only threatened prosecutions.

III. Federal Judicial Power May Be Exercised to En­
join  State Criminal Prosecutions During the Pen­
dency o f a Federal Action on the Same Subject 
Matter.

Judge Rives’ opinion below sets forth the principles gov­
erning the federal judicial power to enjoin state criminal 
prosecutions commenced during the pendency of a federal 
action on the same subject matter. The cases cited by Judge 
Rives support this doctrine. See, e.g., Ex parte Young, 209 
U. S. 123, 161-162; In Re Sawyer, 124 U. S. 200, 211; Truax 
v. Raich, 239 U. S. 33, affirming, 219 Fed. 273 (D. Ariz. 
1915). Judge Rives said:



27

In terms of the anti-injunction statute, 28 U. S. C. 
§2283, it is a power “in aid of our jurisdiction” to pre­
vent state courts from interfering with the determina­
tion of issues properly before the federal court. The 
propriety of granting such a request, however, is dis­
cretionary, and only the strongest equities will support 
such outright interference with state proceedings al­
ready commenced. I  am of the opinion that such 
equities exist in this case.

Judge Rives’ opinion also makes apparent the inadequacy 
of any remedy at law. He pointed out, among other rea­
sons for this, that individual defendants in the state courts 
would have great difficulty in establishing the patterns or 
practices over extended periods which demonstrate in this 
record that racial discrimination was the basis of these 
arrests and prosecutions.

Douglas v. Jeannette, 319 U. S. 157, which held that fed­
eral courts as a matter of comity and equitable discretion 
should not interfere with state criminal proceedings and 
law enforcement officials when an adequate remedy is pro­
vided in the state proceedings for the protection and asser­
tion of all constitutional rights is not to the contrary. 
As Judge Rives pointed out, the primary requirement of 
Douglas v. Jeannette is “that there be an adequate state 
remedy; that is not the case here”. Cf. Morrison v. Davis, 
5th Cir. 1958, 252 F. 2d 102, 103, wherein the Court stated:

“This is not such a case as required 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. §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 F. Supp. 707, aff’d 
352 U. S. 903] in which the same contention was ad­
vanced. To the extent that this is inconsistent with 
Douglas v. City of Jeanette, Pa., 319 U. S. 157, 63 
8. Ct. 877, 87 L. Ed. 1324, wTe must consider the earlier 
ease modified.”

As set forth supra pp. 16-22, the class on behalf of whom 
this suit was filed under Buie 23(a)(3), Federal Rules of 
Civil Procedure, consists of persons subjected to segrega­
tion in the City of Jackson and State of Mississippi in the 
various ways such segregation is imposed. This includes 
persons arrested and prosecuted for breach of the peace 
whose only wrong was to violate existing state required 
segregation patterns. See Garner v. Louisiana, supra; 
Thompson v. Louisville, supra.

While appellants have not pressed for relief against 
prosecution on behalf of those arrested prior to June 9, 
1961, so far as persons arrested thereafter are concerned 
there is no reason why they should not be entitled to the 
fruits of any decree in this case. If the preliminary injunc­
tion prayed had been granted when originally sought al­
most all of these arrests and prosecutions could never have 
occurred. Moreover, any change in status from being an 
unarrested person to becoming an arrested and prosecuted 
person has been the doing of the appellees, not of the 
appellants. It is ironical in the extreme, that because of 
their own unconstitutional action appellees should claim 
that those against whom they are proceeding are not en­
titled to protection of any decree in this case, or that the 
named appellants, threatened by the same arrest and prose­
cution cannot raise this issue. As this Court held in Evers 
v. Dwyer:



29

. . .  We do not believe that appellant, in order to 
demonstrate the existence of an “actual controversy” 
over the validity of the statute here challenged, was 
bound to continue to ride the Memphis buses at the 
risk of arrest if he refused to seat himself in the space 
in such vehicles assigned to colored passengers. A 
resident of a municipality who cannot use transporta­
tion facilities therein without being subjected by statute 
to special disabilities necessarily has, we think, a sub­
stantial, immediate, and real interest in the validity 
of the statute which imposes the disability. See Gayle 
v. Browder, 352 US 903; 1 L ed 2d 114, 77 S Ct 145, 
affirming the decision of a three-judge District Court 
(Ala) reported at 142 F Supp 707.
(358 U. S. at 204)8

In addition, the relationship between the named appel­
lants and others whose rights are asserted herein and 
whom, it is submitted, the decree should protect, is suffi­
ciently close that the rights of the latter may be raised by 
the litigation prosecuted by the former. Barrows v. Jack- 
son, 346 U. S. 249; Pierce v. Society of Sisters, 268 U. S. 
510; NAACP v. Alabama, 357 U. S. 449; Truax v. Raich, 239 
U. S. 33.

8 See also Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th 
Cir. 1960); Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958).



30

IV. The District Court Abused Its Discretion.

The Court below abused its discretion in remitting appel­
lants to state judicial remedies and in not granting the 
relief prayed by appellants. As Mr. Justice Brandeis has 
stated, the esercise of discretion “does not extend to a re­
fusal to apply well-settled principles of law to a conceded 
state of facts,” Union Tool Company v. Wilson, 259 U. S. 
107,112. Considering the uncontradicted facts and the clear 
law, the segregation statutes of the State of Mississippi are 
clearly unconstitutional; there was absolutely no justifica­
tion to remit appellants to the State Courts and refuse to 
issue a preliminary injunction. As to the disorderly conduct 
and breach of the peace statutes, the Court below abused 
its discretion in remitting appellants to the State Courts 
and in failing to grant the relief prayed by appellants in 
that the Court failed to enjoin the systematic use of the 
processes of the criminal law to arrest and prosecute per­
sons who violated appellees’ segregation orders. The exer­
cise of discretion “implies conscientious judgment, not arbi­
trary action,” Burns v. United States, 287 U. S. 216, 222- 
223. As appellants’ rights, guaranteed by the Constitution 
and Laws of the United States, would be violated regardless 
of the construction put on these statutes by the State courts, 
the Court below abused its discretion in not entering a pre­
liminary injunction. The doctrine of abstention was im­
properly invoked since no construction placed on the state 
statutes in question would have avoided the constitutional 
issue pleaded and proved. Harrison v. NAACP, 360 U. S. 
167, was improperly relied upon below as justifying absten­
tion under the facts of this case. As full testimony had 
been taken, argument had and briefs submitted, the pre­
liminary injunction should have also been made final.



31

We believe, therefore, that the questions presented by the 
appeal are substantial and that they are of public impor­
tance.

Respectfully submitted,

Constance B aker Motley 
J ack Greenberg 
J ames M. N abrit, I I I  
Derrick A. B ell, J r.

10 Columbus Circle 
New York 19, N. Y.

R. J ess Brown 
1105% Washington Street 
Vicksburg, Mississippi

Attorneys for Appellants

Michael Meltsner 
Of Counsel



Opinion o f the United States District Court, 
Southern District o f Mississippi

Filed November 17, 1961

IN THE UNITED STATES DISTRICT COURT 
F oe the Southern District of Mississippi 

J ackson Division 

Civil Action No. 3133

[ same title]

Before R ives, Circuit Judge, and Mize and Clayton,
District Judges.

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 Mississippi, who filed their complaint herein on June 
9, 1961. The 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, Continen­
tal Southern Lines, Inc., Southern Greyhound Lines, Il­
linois Central Railroad, Inc., Jackson City Lines, Inc., 
Cicero Carr. Each of the defendants has filed an answer 
to the amended complaint, setting out their defenses. The 
issues are clearly defined by these pleadings. The amended 
complaint was in substance a substitution of the original 
complaint.



2a

Opinion of the United States District Court

It is the contention of the plaintiffs that Sections 2351,
2351.5, 2351.7, 7784, 7785, 7786, 7786-01, 7787, and 7787.5 
of the Code of Mississippi of 1942 are unconstitutional; 
that the defendants are seeking to enforce these statutes; 
and that a preliminary injunction should be issued en­
joining the defendants and each of them and their suc­
cessors from enforcing any of these statutes or any other 
statutes requiring racial segregation on common carriers 
or in the facilities maintained by common carriers. Plain­
tiffs 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 notwithstanding its unconstitutionality, the defen­
dants, City of Jackson and its officials, have threatened 
to enforce this ordinance against the plaintiffs and mem­
bers of their class. Plaintiffs further contend that the de­
fendants 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. Plain­
tiffs 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 en­
joining each of the defendants from enforcing or attempt­
ing to enforce any of the aforementioned statutes or any 
other statute of the State of Mississippi requiring segrega­
tion; pray for an injunction enjoining the City of Jack- 
son or any of its officers from enforcing any of the



3a

Opinion of the United States District Court

ordinances of the City of Jackson hereinabove referred 
to; to enjoin the defendants and each of them from con­
tinuing 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 facilities main­
tained by any common carrier, from continuing to enforce 
any policy or custom of segregating the races in the facil­
ities 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 Fed­
erally protected right to use inter and intra state trans­
portation and services without segregation or discrimina­
tion 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 oftheir race. Defendants contend that this is the 
type of action wherein the Federal Court should abstain 
from passing on these statutes until the State courts have 
first had an opportunity to pass on its own laws and city 
ordinances.

All the defendants contend that no injunction should 
issue against either of the defendants. More specifically, 
the defendant Joe T. Patterson contends that this is not 
properly a class action; that the amended complaint raises 
factual and legal controversy involving unsettled ques­
tions 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 suit; and that none



4a

Opinion of the United States District Court

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 fur­
ther 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 com­
plaint 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 
protecting all persons of the state against domestic vio­
lence, 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 set out in Appendix I.) He contends that these 
statutes are constitutional and are not being unconsti­
tutionally enforced. He further contends that this action 
constitutes an attempt to control the law enforcement of­
ficials of the City of Jackson, as well as the State of Mis­
sissippi in the exercise of their valid discretionary powers 
and authority.

The defendants, City of Jackson anl Allen Thompson, 
its Mayor, the Commissioners and Chief of Police con­
tend 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 
Eiders under Sections 2087.5 et seq. of the Code of 1942 
and that the arrest of the Freedom Eiders was legitimate 
and in accord with these sections, and that these sections 
were not unconstitutionally enforced. They contend spe-



5a

Opinion of the United States District Court

cifically 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 con­
tend 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 Mississippi 
and, therefore, not subject to suit.

The defendants, Continental Southern Lines, Inc., South­
ern Greyhound Lines, Illinois Central Railroad, Inc., 
Jackson City Lines, Inc., Jackson Municipal Airport Au­
thority and Cicero Carr contend that they have not caused 
the arrest of anyone and that they are not seeking to 
enforce the segregation 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 contents of the respective 
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 
remit the plaintiffs to the State Courts of Mississippi for 
a prior adjudication of the issues and of the scope and 
meaning 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 Mis­
sissippi 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 any-



6a

Opinion of the United States District Court

one. With the exception of Sections 2351 and 7784,1 the 
sections of the Mississippi Code complained of and the 
constitutionality of which is under attack herein have 
never been passed upon by the Supreme Court of Mis­
sissippi. 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 particular case, wherein it is 
shown by the contentions of the parties that there will be 
factual issues as well as the constitutionality of the stat­
utes involved, the courts of the State of Mississippi should 
be afforded an opportunity to pass upon them.

This equitable principle of abstention is well supported 
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 necessary

1 The Mississippi Supreme Court in Louisville, N. 0. & T. B. 
Co. v. State, 66 Miss. 662, 6 So. 203, held that the Mississippi Act 
of March 2, 1888, now Sections 2351 and 7784, Mississippi Code 
1942, Recompiled, applied solely to 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. B. 
Co. v. Mississippi, 1889, 133 U. S. 587, that a state may require 
railroads to provide separate accommodations for the white and 
colored races without violating the commerce clause of the Con­
stitution so long as the statute applies only to commerce within 
the state.

In 1912, the Mississippi Supreme Court held, in Alabama & 
V. By. Co. v. Morris, 103 Miss. 511, 60 So. 11, that Sections 4059 
and 1351, Mississippi Code 1906, now Sections 2357 and 7784, ap­
plied 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 B. Co. v. Bedmond, 119 Miss. 
765, 81 So. 115.



7a

Opinion of the United States District Court

to refer to all the decisions that have adhered to this 
doctrine, bnt 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. The Court said:

“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 statutes 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 con­
cerns, a course so essential to the balanced working 
of our federal system. To minimize the possibility of 
such interference a ‘scrupulous regard for the right­
ful independence of state governments . . . should at 
all times actuate the federal courts.’ Matthews v. Rodg­
ers, 284 U. S. 521, 525, as their ‘contribution . . .  in 
furthering the harmonious relationship between state 
and federal authority . . . ’ Railroad Comm’n v. Pull­
man Co., 312 U. S. 496, 501. In the service of this 
doctrine, which this Court has applied in many dif­
ferent contexts, no principle has found more consis­
tent or clear expression that the federal courts should



8a

Opinion of the United States District Court

not adjudicate the constitutionality of state enact­
ments fairly open to interpretation until the state 
courts have been afforded a reasonable opportunity to 
pass upon them. See e.g., Railroad Comm’n v. Pull­
man Co., supra; Chicago v. Fieldcrest Dairies, Inc., 
316 U. S. 168; Speetor Motor Service Inc. v. Mc­
Laughlin, 323 TJ. S. 101; American Federation of La­
bor v. Watson, 327 U. S. 582; Shipman v. DuPre, 339 
TJ. S. 321; Albertson v. Millard, 345 U. S. 242; Gov­
ernment & Civic Employees v. Windsor, 353 U. S. 
364. This principle does not, of course, involve the 
abdication of federal jurisdiction, but only the post­
ponement of its exercise; it serves the policy of comity 
inherent in the doctrine of abstention; and it spares 
the federal courts of unnecessary constitutional ad­
judication. See Chicago v. Fieldcrest Dairies, Inc., 
supra, at 172-173.

“The present case, in our view, is one which calls 
for the application of this principle, since we are un­
able to agree that the terms of these three statutes 
leave no reasonable room for a construction by the 
Virginia Courts which might avoid in whole or in 
part the necessity for federal constitutional adjudica­
tion, or at least materially change the nature of the 
problem.”

The Court said, further: “We do not intimate the slight­
est 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 construc­
tion 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 com-



9a

Opinion of the United States District Court

plete 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 uncon­
stitutional, for the reason that the courts of the State of 
Mississippi should be permitted to pass upon these ques­
tions, uninfluenced by any adjudication or intimation of 
ours as to the statutes. We have given careful considera­
tion 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 thinking of Mr. Justice Doug­
las, 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 constitutionality of 
the statutes of Mississippi is questioned and has never been 
passed upon by the highest court of the State, a sound 
discretion requires that the federal courts abstain. In the 
case of Spector 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 constitu­
tionality—here the distribution of the taxing power 
as between the State and the Nation—unless such ad­
judication is unavoidable. And so, as questions of 
federal constitutional power have become more and



10a

Opinion of the United States District Court

more intertwined with preliminary doubts about local 
law, we have insisted that federal courts do not de­
cide questions of constitutionality on the basis of pre­
liminary guesses regarding local law.” (Citing au­
thorities).

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 refer­
ence to abstention. In that exhaustive dissent he reviews, 
at page 540, et seq., the many authorities upholding this 
doctrine of abstention.

We are in thorough accord with the opinion of the Court 
of the Fifth Circuit in the case of Empire Pictures Dis­
tributing Company, Inc., et al. v. City of Fort Worth, et 
al., 273 Fed. (2) 529, in which the Court upheld the doc­
trine of abstention and quotes at length from many of the 
applicable 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 whether 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, and exhaus­
tive, cited the many authorities, quoting from a number 
of them to the effect that the trial courts should have ab­
stained. We shall not quote at length from that opinion 
more than to say that we adopt it as announcing the con­
trolling principles of the law governing 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:



11a

Opinion of the United States District Court

“Few 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. 89; or the administration of a 
specialized scheme for liquidating embarrassed busi­
ness 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; cf. Hawks v. Hamill, 
288 IT. S. 52.61. These cases reflect a doctrine of ab­
stention appropriate to our federal system whereby 
the federal courts, ‘exercising a wise discretion,’ re­
strain their authority because of ‘scrupulous regard 
for the rightful independence of the state governments’ 
and for the smooth worldng of the federal judiciary. 
See Cavanaugh v. Looney, 248 U. S. 453, 457; Di Gio­
vanni 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 con­
gressional restriction of those powers.”

We think the above authorities and those cited below2 
along with those mentioned in the various opinions in the 
cases supra are ample to require that the federal court 
abstain.

2 Martin v. Creasy, 360 XT. S. 219; County of Allegheny v. Mas- 
huda Co., et al., 360 U. S. 185; Watson v. Buck, 313 U. S. 387; 
Callaway v. Benton, 336 U. S. 142; Government and Civic Em­
ployees Organization of G. I. 0. v. Windsor, 353 U. S. 664; Two 
Guys from Harrison—Allentown v. McGinley, 366 U. S. 589.



12a

Opinion of the United States District Court

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 
applicable and for that reason we are treating these sep­
arately. As shown by the pleadings, the plaintiffs are con­
tending that the defendants are using these statutes to 
enforce segregation and the defendants are contending 
that these statutes are constitutional and are not being 
used to enforce segregation, but are being used for the 
purpose of protecting the public against violence and dis­
turbance 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 Sec­
tion 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 Constitution 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 commit­
ment 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,



13a

Opinion of the United States District Court

that the petition be granted and the case advanced. The 
Court of Appeals denied the petition and since the opin­
ion has not been published, a copy of the opinion rendered 
by the Court is attached hereto in Appendix III.

In the trial before the lower court it was contended by 
petitioner that she had no adequate remedy at law, which 
contention was not upheld, as it was shown that under 
the statutes of Mississippi particularly she did have a full, 
adequate and speedy remedy at law and these statutes 
are set out in the opinion of the District Court. 196 F. 
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 the Court said: “As 
heretofore stated, the federal courts are very reluctant 
indeed to interfere with the orderly process of a state 
court involving state matters.” And cited the cases of 
Davis v. Burke, 179 U. S. 399; Parte Hawk, 321 U. S. 114; 
Stock v. Boyle, 342 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 fed­
eral courts from interfering with the state courts, except 
in those cases specifically authorized by Congress. How­
ever, the principle involved is the same, since it is the gen­
eral 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 2283, Title 28, U. S. C. A. prohibits a 
court of the United States from granting an injunction to 
stay proceedings in a state court except as expressly au­
thorized by the Act of Congress, or when necessary in aid 
of its jurisdiction, or to protect and effectuate its judg­
ments. In view of that statute the writ of habeas corpus 
was denied in the Wykcoff case, and citing in support



14a

Opinion of the United States District Court

thereof: Empire Pictures Distributing Co. v. City of 
Fort Worth, 273 Fed. 2d 529; Douglas v. City of Jean­
nette, 319 U. S. 157.

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

“The power reserved to the states under the Con­
stitution to provide for the determination of contro­
versies 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 defined statu­
tory 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 
guaranties, is not a ground for equity relief since the 
lawfulness or constitutionality of the statute or ordi­
nance on which the prosecution is based may be 
determined as readily in the criminal case as in a 
suit for injunction. # * Where the threatened pros­
ecution 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 as­
serted. 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



15a

Opinion of the United States District Court

supported only on a showing of danger of irreparable 
injury ‘both great and immediate’. * * *

u * m m ^  (}oeg ri0t appear from the record that 
petitioners have been threatened with any injury other 
than that incidental 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 peti­
tioners any protection which they could not secure by 
prompt trial and appeal pursued to this Court.”

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. Sehnettler, et al., 365 U. S. 381, 
and Tugach v. Bollinger, 365 U. S. 458. These eases are 
discussed more at length in the Wyckoff case, 196 F. Supp. 
522-523.

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 peo­
ple have gathered, or are threatening to gather in numbers 
under pressure of emotional stress. The public press car­
ried an account recently of a congregation of a large num­
ber of white people when Negroes sought to make use of



16a

Opinion of the United States District Court

bathing beaches at or near Chicago. It was stated that 
the state officers made use of loud 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 re­
quired 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 statutes varies from state to state, 
and their application to a given situation makes a peculiar 
call on the judgment of state tribunals before such applica­
tion should be tested in a court of the United States.

The situation disclosed by the facts in this record fall, 
in our opinion, directly within the scope of the decisions 
of the Supreme Court requiring abstention until the State 
courts have decided the full meaning of their respective 
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 
proceedings 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 fur­
ther action in this cause to give the State Courts of Mis­
sissippi a reasonable opportunity to act either in the cases 
already pending or in any new case which any of the par­
ties may elect to commence.



17a

APPENDIX I

Statutes Involved

Mississippi Code of 1942
§ 2087.5—

“1. Whoever with intent to provoke a breach of the 
peace, or under circumstances such that a breach of 
the peace may be 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, swim­
ming 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 indi­
vidual or a corporation, or a partnership or an asso­
ciation, 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 Mississippi, 
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 other 
vehicle engaged in transporting members of the pub-



18a

Appendix I—Statutes Involved

lie 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 other passenger on said vehicles 
or any person outside of said vehicle or in the proc­
ess 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 em­
ployee 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 more than four (4) months, or by both such 
fine and imprisonment; and if any person shall be 
guilty of disorderly 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 such person shall be 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 be held to be unconstitutional or invalid, the 
same shall not affect any other part, portion or pro-



19a

Appendix I—Statutes Involved

vision of this act, but such other part shall remain in 
full force and effect.” Source: Laws of 1960.

§ 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 corporation, or a partner­
ship, 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 accom­
modation to members of the public, or engages gen­
erally 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 
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, expressly 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



20a

Appendix I—Statutes Involved

fine of not more than five hundred dollars ($500.00), 
or by imprisonment in the county jail for not more 
than six (6) months, or by both such fine and im­
prisonment.

“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.” Source: Laws of 1960.

§ 2089.5—
“1. Any person who disturbs the public peace, or 

the peace of others, by violent, or loud, or insulting, 
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 con­
duct 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 a 
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 pro­
vision thereof, but such other part shall remain in 
full force and effect.” Source: Laws of 1960.



21a

APPENDIX II

Statutes Involved

Mississippi Code op 1942

§ 2351—

“If any person or corporation operating a railroad 
shall fail to provide two or more passenger cars for 
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 as­
sign each passenger to the ear 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 con­
viction shall be fined not less than twenty dollars nor 
more than five hundred dollars.” Source: Code of 
1892.

§ 2351.5—
“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 op­
erated shall cause to be constructed and maintained 
in connection with such reception or waiting room two 
closets or retiring or rest 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 intrastate travel”, and on the other: 
“Rest Room, white male only in intrastate travel” ;



22a

Appendix II—Statutes Involved

and likewise two closets or retiring or rest rooms shall 
be constructed and maintained for colored passengers 
in 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 opera­
tor shall see that the closets or rest rooms are equally 
clean and in equally good sanitary condition.

“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, frequent or occupy 
or use the white closets or rest rooms required by this 
act, except, however, regularly 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 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.

§ 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 
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.



23a

Appendix II—Statutes Involved

“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 per­
son 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 termi­
nals may enter same in the discharge of their assigned 
and required duties.

“Any person violating the provisions of this section 
shall be guilty of a misdemeanor and upon conviction 
thereof shall be fined not more than one thousand dol­
lars ($1,000.00) and imprisoned in jail for not more 
than one year, or both.

“3. No action or suit in low 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 em­
ployees be subject to suit for damages on account of 
such common carrier of passengers or its employees 
complying with the provisions of this act.

“4. In the event any part or parts of this act shall 
be held unconstitutional, the remaining portion of this 
act shall remain in full force and effect.” Source: 
Laws of 1956.

§ 7784—
“Every railroad carrying passengers in this state 

shall provide equal but separate accommodations for



24a

Appendix II—Statutes Involved

the white and colored races by providing two or more 
passenger cars for each passenger train, or by dividing 
the passenger cars by a partition to secure separate 
accommodations; and the conductor of such passenger 
train shall have power, and is required, to assign 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 ear to 
which he or she is assigned by the conductor, the con­
ductor shall have power to refuse to carry such pas­
senger 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,

§ 7785—
“All persons or corporations operating street rail­

ways and street or municipal buses, carrying passen­
gers in this state, and every common carrier by motor 
vehicle of passengers in this state as defined by sec­
tion 3 (e) of chapter 142 of the laws of 1938 (§ 7634, 
Code of 1942), shall provide equal, but separate, ac­
commodations 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 (§7634, Code of 1942), by 
buses or street cars operated entirely within the cor­
porate limits of a municipality, or within a radius of 
5 miles thereof, shall divide its passengers by the use 
of an appropriate sign 4 x 9  inches, for the purpose 
of, and in a a manner that will “suitably provide for, 
a separation of the races, and all other buses and 
motor vehicles carrying passengers for hire in the



25a

Appendix II—Statutes Involved

state of Mississippi shall use a latticed movable par­
tition 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, however, 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 re­
quired, to assign each passenger to the compartment 
of the bus used for the race to which such passenger 
belongs; and in no case shall any passenger be per­
mitted to 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 compart­
ment to which he or she belongs and is assigned, the 
operator shall have the power to refuse to carry such 
passenger on the bus; or should either compartment 
become so loaded in transit as not to permit the taking 
on of any further passengers for that compartment, 
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 hold tickets for trans­
portation on the said bus, the only remedy said pas­
sengers 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 refusal in either case 
neither the operator nor the common carrier shall be 
liable for damages in any court. Such partition may 
be made movable so as to allow adjustment of the 
space in the bus to suit the requirements of traffic.” 
Source: Code of 1956.



Appendix II—Statutes Involved

§ 7786—
“The operators of such street cars and street buses 

and motor vehicles, as defined by chapter 142 of the 
laws of 1938 (§§ 7632-7687, Code of 1942) shall have 
power and are required to assign each passenger 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, assign­
ing or placing a passenger to the space or compart­
ment other than the said one set aside for the race to 
which said passenger belongs shall be guilty of a mis­
demeanor 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.

§ 7786.01—
“Every person or corporation operating street rail­

ways 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 142 of the laws of 1938 
(§7634, Code of 1942), 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 dollars



27a

Appendix II—Statutes Involved

($25.00) for each offense, and each day’s violation of 
the provision hereof shall constitute a separate vio­
lation of this act; provided, however, that in the case 
of persons or corporations operating street railways 
and street or municipal buses, the fine shall be ten 
dollars ($10.00) instead of twenty-five dollars ($25.00).” 
Source: Laws of 1944.

% 7787—
“All officers and directors of street railway com­

panies who shall refuse or neglect to comply with the 
provisions and requirements of the two preceding 
sections shall be deemed guilty of a misdemeanor, on 
conviction shall be fined not less than one hundred dol­
lars or be imprisoned in the county jail not less than 
sixty, and not more than six months, and any conduc­
tor or other employee of such street ear 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 
or be imprisoned in the county 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.

§ 7787.5—
“1. In all passenger depots, bus stations or termi­

nals owned, operated or leased in the State of Mis­
sissippi by a railroad company, bus company or any 
other common carrier of passengers, the owner or 
operator thereof shall cause to be constructed and



28a

Appendix II—Statutes Involved

maintained waiting or reception rooms as will secure 
the comfort of the passengers.

“In such depots, bus stations or terminals there shall 
be constructed, provided and maintained for the white 
intrastate passengers a separate waiting or reception 
room, on each entrance to which shall be painted or 
shown in bold letters the following:—“White waiting 
room, intrastate passengers” ; and in such depot, bus 
station or terminal there shall be constructed, pro­
vided and maintained a separate waiting or reception 
room for the colored intrastate passengers, on each 
entrance to which shall be painted or shown in bold 
letters the following:—“Colored waiting room, intra­
state 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 
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 
county attorney of the county in which said passenger 
depot, bus station or terminal is situated.

“In addition to the penalty provided herein, the At­
torney General of the State of Mississippi or the dis­
trict attorney of the district, or county attorney in the 
county in which said depot, bus station or terminal is 
situated may file suit in the chancery court of such 
county for a mandatory injunction to compel compli­
ance with the provisions of this act, and the chancery



29a

Appendix II—Statutes Involved

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 company or any other common carrier of passen­
gers failing to comply with the orders and decrees of 
the court directing compliance with this act.

“3. The requirements of this act shall not be ap­
plicable to any person, firm or corporation operating 
a place of business wherein said person, firm or cor­
poration 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.” Source: Laws of 1956.



30a

APPENDIX III

Opinion o f  the United States Court o f Appeals

I n the

UNITED STATES COURT OF APPEALS 
F or the F ifth  Circuit

In the Matter of:
E lizabeth P orter W yckoff 

For a Writ of Habeas Corpus

Before T uttle, Chief Judge, J ones and W isdom, 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 District of 
Mississippi, and moves for permission to proceed on her 
appeal upon the original papers filed in said District 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 other 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.”



31a

Appendix III—Opinion of the United States Court 
of Appeals

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 require­
ments that she must first exhaust her state remedies would, 
in effect, deny her the right of habeas corpus, in a situa­
tion where it was the sole effective remedy with which to 
safeguard her statutory and constitutional rights and 
liberties.”

It nowhere 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 circum­
stances 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. §2254 provides as follows:

§2254. State custody; 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 exhausted 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 process ineffective 
to protect the rights of the prisoner.
An applicant shall not be deemed to have exhausted 
the remedies available in the courts of the State, with­
in the meaning of this section, if he has the right under 
the law of the State to raise, by any available pro­
cedure, the question presented.”



32a

Dissenting Opinion

It not appearing from anything asserted in the petition 
in this case that petitioner sought to appeal her conviction, 
which she alleges to have been void and unconstitutional, 
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 petitioner’s financial 
inability to cause the record to be prepared in accordance 
with the rules of this Court.

The motions are, therefore, Denied.

C. A. No. 3133—Samuel Bailey, et al. v. Joe T. Patterson, 
Attorney General of the State of Mississippi, Jackson, 
Miss., et al.

R ives, Circuit Judge, dissenting:
The complaint seeks to enjoin state-imposed racial seg­

regation in public travel facilities in the State of Missis­
sippi 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 maintenance 
of law and order but which, according to the complaint, 
are used to maintain segregation.

The plaintiffs are three adult Negro citizens residing in 
Jackson, Mississippi, who sue on behalf of themselves and



33a

Dissenting Opinion

of other Negroes similarly situated and affected by the 
statutes and ordinances complained of.1 The defendants 
are the Attorney General of Mississippi; the City of Jack- 
son, its Mayor, Commissioners, and Chief of Police; Jack- 
son Municipal Airport Authority; Continental Southern 
Lines, Inc.; Southern Greyhound Lines; Illinois Central 
Railroad, Inc.; Jackson City Lines, Inc.; and Cicero Carr 
d/b/a Cicero’s Airport Restaurant.

The original complaint and motion for preliminary in­
junction were filed on June 9, 1961. A hearing on the 
plaintiff’s motion for preliminary injunction was set for 
July 10, 1961. That hearing was continued because of the 
illness of an Assistant Attorney General of Mississippi. 
The hearing was reset for August 7, 1961.

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 to require the plaintiffs 
to furnish security for costs, and to the plaintiffs’ in­
sistence upon a hearing of their motion for preliminary in­
junction. By order entered on that date, August 7, 1961, 
the court allowed the Amended Complaint which had been 
filed July 17, 1961; allowed the plaintiffs to join as an 
additional party defendant the Jackson Municipal Airport 
Authority; provided for service upon that party and for 
the filing of any motions and answers on its behalf; de-

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 inter­
state commerce.”



34a

Dissenting Opinion

nied the motions to dismiss for lack of indispensable par­
ties; 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 to dissolve the three-judge court, and 
the motions to abstain.

Over the plaintiffs’ objection, their request to be heard 
on their motion for preliminary injunction was denied 
“in view of the broadening of the issues2 by the Amended 
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 Sep­
tember 25, 1961. It was further ordered that on that date 
the court would hear the case, both on said motion and on 
the prayer for permanent relief. The court stated its in­
tention 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 preliminary 
injunction and on the prayer for permanent relief. The 
taking of testimony consumed three days—Monday, Tues­
day and Wednesday, September 25, 26, and 27. On Thurs­
day, September 28, oral arguments of counsel were heard, 
and a further exhibit of the plaintiffs (No. 36) was received. 
The defendant Greyhound Corporation was permitted to

2 Paragraph 15 of the complaint was amended so as to make 
specific reference to the disorderly conduct and breach of the peace 
statutes, Secs. 2087.5, 2087.7 and 2089.5 of the Mississippi Code 
Annotated (1942), as among those under color of which the de­
fendants pursued a policy, practice, custom and usage of segre­
gating Negro and white passengers.



35a

Dissenting Opinion

take the deposition 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 resi­
dence of the plaintiffs, their use of the transportation 
facilities in question, the identification of the carrier de­
fendants, their use of the busses, cars, terminals, depots, 
rest rooms, drinking fountains, etc., were all either admitted 
or established by undisputed evidence. Continental South­
ern and Greyhound admitted that in their Jackson ter­
minals or depots there are signs on the outside doors of one 
waiting room which read: “Colored W aiting R oom—I ntra­
state P assengers,” and signs on the outside doors of an­
other waiting room which read: “W hite W aiting R oom— 
I ntrastate P assengers,” and on the sidewalks outside the 
respective waiting rooms are signs which read: “W aiting 
R oom F or Colored Only—B y Order P olice Dept.” and 
“W aiting R oom F or W hite Only—By Order P olice 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 1956, Regular Session of Mississippi Legislature.” 
The bus companies further admitted that similar signs on 
or 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 waiting 
rooms, on the sidewalk outside of one of which are signs 
reading respectively: “W aiting R oom F or Colored Only,



36a

Dissenting Opinion

By Order P olice Dept.” and “W aiting R oom F or W hite 
Only, By Order P olice 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.

The Mayor of the City of Jackson, the chief law enforce­
ment 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.

The testimony was admitted under Rule 43 (c) of the 
Federal Rules of Civil Procedure as a specific offer of evi­
dence. 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 segrega­
tion of transportation facilities.)



37a

Dissenting Opinion

“Q. . . . State your understanding of the racial 
policy of the City of Jackson with respect to transpor­
tation 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 de­
partment 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 with­
in our city. That has been done by a separation of 
the races, not segregation. "We never refer to it as 
segregation. Now, of course, you know and I know7 
the State law upon which the City ordinance w7as pat­
terned in 1956, with the preamble put in as ours, show­
ing why—to maintain peace and order 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 segregation ordinance. 
We have at all times tried to maintain peace and keep 
dowm 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 lavTs can go and laws can be 
changed, but the policy adopted here is to maintain 
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?

# # # # #

A. I think so . . . However, as Your Honors have 
read it, you read the last paragraph there, it says,



38a

Dissenting Opinion

‘The Council of the said City of Jackson owes the duty 
to its citizens, regardless of race, color, creed or sta­
tion in life, to maintain 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 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 
separation of the races.”

The State Attorney General testified on direct examination 
that it was his duty to enforce all of the laws in the State. 
He was extremely evasive on answering whether the State 
segregation laws affected his duty as Attorney General; 
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 concluding statement:

“My sole purpose since the beginning of these insti­
gated troubles that were instigated outside our State 
and brought to our State, has been the preservation 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.”



39a

Dissenting Opinion

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 
Police of Jackson. Plans were discussed at these meetings 
for dealing with the Freedom Riders. On this point he 
testified:

“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 fol­
lowed. They could have been easily avoided had your 
clients only wanted them avoided.. . . ”

The Attorney General is not responsible for the enforce­
ment of state law in the local courts; he is, nevertheless, 
the chief policymaker of state 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 Jackson 
City Lines. (In fact, the records of the City Lines contain 
reports on only two incidents.) Plaintiff Bailey testified 
to the arrest of one Charles Patterson, a Negro, for refus­
ing to move when a white man got on the bus and sat down 
next to him. Witness Doris Grayson testified to the arrest 
of herself and three companions who got on a City Lines 
bus in the center of the City and sat in a front seat. The 
bus 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:



40a

Dissenting Opinion

“Q. Were there any white persons on 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? A. Not 
a bit.

“Q. Was there any disturbance outside the bus? A. 
No, not any.”

The record also includes evidence on the arrests of ap­
proximately 300 Freedom Eiders in the terminals of the 
defendant interstate carriers. Captain Eay 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 Eailroad:

“Q. What were the Negroes doing that you arrested 
in 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? A. I never found any of 

them armed.
“Q. Were they loud? A. No.
“Q. Did they use any curse words? A. No.
“Q. Did they strike anybody? A. No.
“Q. Did they threaten anybody? A. No.
“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



41a

Dissenting Opinion

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’? A .  Well, as I stated 
earlier, we had advance notice that they were coming 
to Jackson to create an incident similar to what had 
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.

“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 sur­
rounding the arrests is equally explicit. Chief of Police 
Bayfield was questioned on the existence of crowds of 
people around any of the terminals when a group of Eiders 
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 came 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 ears were



42a

Dissenting' Opinion

asked to disperse, and they did. At the Illinois Central 
terminal, Bayfield 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 Biders arrived. He then testi­
fied:

“Q. Did you receive any other reports from your 
police officers of this nature? A. That’s the only two.

“Q. The only two reports you know about! A. 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 Bay testified that the events within the terminal 
were roughly similar for all the arrests: Before the arrival 
of a group, people inside the terminal would make re­
marks, none of which particularly threatened violence. 
If necessary, he would order all those who did not have 
tickets or some business in the terminal to leave; 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 
Bay ventured the opinion that there might have been inci­
dents of violence had he not arrested the Biders, 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 poten­
tial 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



43a

Dissenting Opinion

Civil Eights Act, 42 U. S. C. §1983, which creates an equi­
table cause of action against

“Every person who, under color of any statute, ordi­
nance, regulation, custom, or usage, or any State or 
Territory, subjects, or causes to be subjected, any citi­
zen of the United States, or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws. . . ”

The jurisdiction of the three-judge court is invoked pur­
suant to 28 U. S. C. §2281, §2284 because the constitu­
tionality of state statutes has been attacked. The statutes 
attacked are the so-called segregation statutes of the State 
of Mississippi which require racial segregation in all com­
mon carriers and in waiting room and rest room facilities 
used by the carriers, and provide criminal penalties for 
carriers and persons refusing to abide by these laws.3

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. Oilman, 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 constitutionality of 
the statute since no case or controversy is presented. 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

3 These statutes are: Title 11, Sections 2351, 2351.5, 2351.7, and 
Title 28, Sections 7784, 7785, 7786, 7786-01, 7787, 7787.5, Miss. 
Code Ann. (1942).



44a

Dissenting Opinion

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 jurisdiction 
over the segregation statutes may not extend to the col­
lateral problem of enforcement of segregation by means of 
the breach of the peace statutes on the grounds: (1) There 
is no authority under §2284, and (2) the court may not 
consider issues of fact. The concept of federal jurisdic­
tion is by no means this narrow. In Sterling v. Constantin, 
1932, 287 U. S. 378, the jurisdiction of the three-judge court, 
originally invoked to test a state statute limiting oil pro­
duction, extended to the Governor of Oklahoma’s attempt 
to institute the same production limitations by fiat under 
martial law. The three-judge court made extensive findings 
and concluded: “The evidence shows no insurrection 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 invocation of martial laws was 
invalid and that the military orders enforcing the produc­
tion limitations were a denial of due process. The Supreme 
Court upheld the district court and specifically approved 
the extensive findings of fact:

“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



45a

Dissenting Opinion

“ . . . 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, Hum  v. Oursler, 1933, 289 U. S. 238; Florida 
Limn Growers v. Jacobsen, 1960, 362 U. S. 73; Evers v. 
Dwyer, 1958, 358 U. S. 202.

The City of Jackson, its Mayor, Commissioners and Chief 
of Police urge that the City cannot be sued in this action. 
They rely upon Monroe v. Pape, 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 Air­
port Authority.

The direct holding in Monroe v. Pape is that a municipal 
corporation is not a “person” within the meaning of section 
1983 for the purpose of holding it liable for damages, and 
is based upon the finding that Congress rejected an amend­
ment which would have made such corporations liable for 
money damages in specific cases. 365 U. S. at 188. The 
defendants argue that if the City is not a “person” for 
purposes of damages, it cannot be 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. 
§1983 were alleged. See, e.g., Douglas v. City of Jean­
ette, 319 TJ. S. 157; Holmes v. City of Atlanta, 350 IT. S. 
879. The question dealt with in our opinion was not



46a

Dissenting Opinion

raised in those cases, either by the parties or by the 
Court. Since we hold a municipal corporation is not 
a ‘person’ within the meaning of §1983, no inference 
to the contrary can any longer be drawn from those 
cases.”

The question of whether a municipality could be sued under 
§1983, 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. Jeanette, 
supra; Holmes v. City of Atlanta, supra; Mayor and City 
Council of Baltimore City v. Dawson, 350 U. S. 877, affirm­
ing 220 F. 2d 386 (4 Cir., 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 concerned with the question of tortious action and the 
liability 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 
plaintiffs’ constitutional rights against not just the tor­
tious activity of individuals, but the enforcement of City 
ordinances, officially declaring City policy, and officially 
recorded on the City Journal. This same issue has been 
before the Seventh Circuit Court of Appeals since Monroe 
v. Pape, and that Court held :

“None of the reasons which support a city’s immunity 
from an action for damages for tortious injuries al­
ready inflicted by its officers, agents or servants ap­
plies to this case. No reason is apparent why a city 
and its officials should not be restrained from pros­
pectively violating plaintiffs’ constitutional rights



47a

Dissenting Opinion

pursuant to its own legislative enactment, and an 
injunction not be granted as provided in §1983.’

Adams v. City of Park 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 
municipal corporation is subject to equitable relief under 
§1983, no inference from cases indicating that it may is 
relevant to the issue of its liability for damages.

More fundamentally, however, the plaintiffs’ right of 
action against the City does not depend alone upon §1983. 
The rights asserted here are based on the Constitution 
which itself creates the cause of action for equitable re­
lief and, within the meaning of 28 U. S .  C. §1343(3) (the 
jurisdictional provision upon which this suit is based), 
authorizes this suit. Cf. Bell v. Hood, 1946, 327 U .  S .  6<8; 
Brewer v. Hoxie School District No. 46, S  Cir., 19o6, 238 
F. 2d 91, 103; Hart & Wechsler, The Federal Courts And 
The Federal System 794097 (1953). Doctrines of immunity 
can have no application to suits in equity brought to re­
strain invasions of federal constitutional rights. Sterling v. 
Constantin, 1932, 287 TJ. S. 378, 393; Ex parte Young, 
1908, 209 U. S. 155, 156; Graves v. Texas Company, 1936, 
298 U. S. 393, 403-04; Georgia RB v. Redwine, 1952, 342 
TJ. S. 299, 305 n. 17.

I would hold that the City of Jackson and the Jackson 
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 TJ. S. 167, which approves abstention where the



48a

Dissenting Opinion

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 privilege of so declaring. Such a rule would be, not 
abstention, but abdication of our judicial function. Nor 
may this court rely on Douglas v. Jeanette, 1943, 319 U. S. 
157, which held that federal courts, as a matter of comity 
and equitable discretion, should not interfere with state 
criminal proceedings and law enforcement officials when 
an adequate remedy is provided in the state proceedings 
for the protection and assertion of all constitutional rights. 
The primary requirement of Douglas v. Jeanette is that 
there be an adequate state remedy; that is not the case 
here. An exception to Jeanette has developed in favor of 
class actions on behalf of Negroes combating state sup­
ported segregation. As stated by the Court of Appeals in 
Morrison v. Davies, 5 Cir., 1958, 252 F. 2d 102, 103:

“This is not such a case as required 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. §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 F. 
Supp. 707, aff’d 352 U. S. 903] in which the same con­
tention was advanced. To the extent that this is in-



49a

Dissenting Opinion

consistent with Donglas v. City of Jeanette, Pa., 319 
U. S. 157, 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 
individual Negroes would have to raise and protect their 
constitutional 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 without 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 become 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 constitutional rights. All these factors go 
to the “adequacy” of the breach of the peace criminal pro­
ceedings 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 inade­
quate in practice.

Another factor bearing on the adequacy of the state 
criminal proceedings is that the Freedom Eiders arrested



50a

Dissenting Opinion

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 county court trial, and perhaps 
again for an appeal, is an unreasonable burden on inter­
state commerce when their only crime is the assertion of 
undisputed statutory and constitutional rights. This bur­
den makes the state criminal proceedings wholly inadequate 
as an alternative to the present suit.

Any further doubts as to the validity of the distinction 
drawn in Morrison v. Davis, or the refutation of Douglas 
v. Jeanette, are put to rest by considering the bearing 
of the Fourteenth Amendment and 42 U. S. C. A. §1983 
on the duty of this court. The Supreme Court had an op­
portunity to pass on the basic thrust and purpose of the 
Fourteenth Amendment soon after it was adopted. In the 
Slaughter-Eouse Cases, 1872, 83 U. S. 36, 71-72, the Court 
said:

“We repeat, then, in the light of this recapitulation 
of events, almost too recent to be called history, but 
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 Avould have been 
even suggested; we mean the freedom of the slave 
race, the security and firm establishment of that free­
dom, and the protection of the newly-made freeman and 
citizens 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



51a

Dissenting Opinion

it is just as true that each of the other articles was ad­
dressed to the grievances of that race, and designed 
to remedy them as the fifteenth.

“We do not say that no one else but the 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 of 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 ap­
propriate legislation, the provisions of this article.” Such 
legislation was already on the books when the Slaughter- 
House Cases were decided, and the very section under which 
the plaintiffs have brought this suit, 42 U. S. C. A. §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. Pape, supra, where the Court discussed 
in detail its legislative history and purposes. As with the 
Fourteenth Amendment, this section was passed by Con­
gress to secure the newly-won freedom of the Negro popula­
tion 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 unleashing of passions and preju­
dices which the mere assertion of these rights engendered 
in a portion of the white population. The Congressional 
solution was to create a remedy through the federal courts. 
The Court states:



52a

Dissenting Opinion

“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 Amend­
ment might be denied by the state agencies.” (365 U. S. 
at 180.)

Mr. Justice Frankfurter adds to this in his separate opinion 
what might be called the substantive right to the exercise 
of federal jurisdiction:

“ • • • the theory that the Reconstruction Congress could 
not have meant §1979 principally as a ‘jurisdictional’ 
provision granting access to an original 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 Ku Klux Act 
. . . Section 1979 does create a ‘substantive’ right to re­
lief. But this does not negative the fact that a power­
ful impulse behind the creation of this ‘substantive’ 
right was the purpose that it be available in, and be 
shaped through, original federal tribunals.” (365 U. S. 
at 251-52.)

Not only is it apparent that the purpose of these provi­
sions is to protect the very kind of rights the plaintiffs as­
sert, 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



53a

Dissenting Opinion

jurisdiction. Thus, the major portion of the defense of 
the City of Jackson and of the Attorney General of Missis­
sippi, 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 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 ease 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 joeace stat­
utes 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 recognition 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. Ullman, supra, 
such an inquiry demonstrated that there was no ease or 
controversy. In an earlier case, Nashville, G. & St. L. By. 
Co. v. Browning, 1940, 310 IT. S. 362, such an inquiry un­
covered a valid administrative amendment to a tax-assess­
ing statute and the alleged discrimination was found to be 
a valid distinction.4 In Sterling v. Constantin, supra, the

4 “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 supplant constitutional guarantees, but it



54a

Dissenting Opinion

inquiry uncovered the evasion of the Governor of Okla­
homa. 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 en­
join ‘the execution of an order made by an administra­
tive . . . commission, and as such was indubitably 
within §266 [now §2284].” 5

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 en­
force segregation. This evasion provides no ground for 
abstention.6

can establish what is state law. The Equal Protection Clause did 
not write an empty formalism into the Constitution. Deeply em­
bedded 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.S. 362, 369.

5 Phillips v. United States, 1941, 312 U.S. 246, 253.
6 See also Evers v. Dwyer, 1958, 358 U.S. 202, where the Court 

ordered a three-judge court, whose jurisdiction was invoked to 
enjoin Tennessee transportation statutes requiring segregation, 
to hear that and “any 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 
F.Supp. 182, aff’d sub nom. Gremillion v. United States, 30 L.W.



55a

Dissenting Opinion

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, 347 IT. S. 483; Browder v. 
Gayle, M. D. Ala., 142 F. Supp. 707, aff’d 352 IT. S. 903 
(1954); Baldwin v. Morgan, 5 Cir., 1958, 251 F. 2d 780; 
Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 F. 2d 
531.

It should be declared impermissible to use laws which 
purport to deal with the maintenance of law and order, or 
any other laws, to maintain segregation of the races in 
any transportation facility. To that end, it should be de­
clared 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 some­
thing more than to occupy some facility or place intended 
for use by persons of another race and to refuse to remove 
himself from such place or facility. To arrest a passenger 
under such circumstances is state-enforced, segregation and 
therefore unconstitutional.

The defendants argue strongly on this last point that 
the State has merely been asserting its rights under the 
police power to maintain law and order. The evidence 
clearly shows, however, that none of the passengers ar­
rested was ever himself disorderly. This poses the ques­
tion of whether a passenger, whose only crime is the exer­
cise of an undisputed constitutional right, may be arrested 
because this exercise provokes others to threaten or aetu-

3120 (Sup. Ct. 1961). It is not uncommon for the states to attempt 
to enforce segregation through general police power statutes. Boyn­
ton v. Virginia, 1960, 364 U.S. 454 (trespass) ; Boman v. Birming­
ham Transit Co., 5 Cir., 1960, 280 F.2d 531 (breach of the peace).



56a

Dissenting Opinion

ally commit disorderly acts. That this is the substance of 
the defendants’ position is clearly inferred from the facts 
to which they themselves testified—the signs on the side­
walk outside the waiting rooms pursuant to the segregation 
ordinance, the arrest of all those who attempted to “crack 
the laws” of Mississippi (to use the words of the State 
Attorney General), and the complete lack of disorderly 
conduct on the passenger’s part at the time of arrest. 
This inference is made explicit, 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 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 1983. 
The Amendment was adopted and this section passed soon 
after the completion of the Civil War. A glance at the 
legislative history of section 1983, cited in Monroe v. Pape, 
supra, demonstrates that Congress had before it extensive 
evidence of the violence caused in the South by the newly- 
won Negro rights. Yet, nowhere, either in the Amendment 
or in section 1983, can there be found an intimation that 
either the danger or the existence of such violence is 
grounds for the revocation of constitutional rights granted 
primarily to Negroes. Rather, the answer of Congress 
was to provide federal jurisdiction and a federal remedy 
for their protection. From this it can only be concluded



57a

Dissenting Opinion

that the provocation of violence in others is no defense to 
the denial of these plaintiffs’ constitutional rights. If it 
were, the defendants and this court know that this ease 
would spell the postponement of full enjoyment of constitu­
tional rights by Negroes in the Deep South for many years 
to come. The Supreme Court faced and decided this issue 
in Cooper v. Aaron, 1958, 358 U. S. 1, 16, when it said:

“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 41 years ago 
in a unanimous opinion in a ease involving another 
aspect of racial segregation: ‘It is urged that this 
proposed segregation will promote the public peace 
by preventing race conflicts. 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, 81. 
Thus law and order are not here to be preserved by 
depriving the Negro children of their constitutional 
rights.”

See also, Sterling v. Constantin, 1932, 287 U. S. 378; Sel­
lers v. Johnson, 8 Cir., 1947, 163 F. 2d S77; 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 rec­
ord, however, of such a situation having arisen. In the case 
of the incidents on the Jackson City Lines buses, there is



58a

Dissenting Opinion

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 arresting the individual actually creating the disorder. 
In the case where the crowd surrounded the Illinois Cen­
tral, it was easily dispersed before the Riders even ar­
rived, 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 be­
yond 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 situa­
tion could not be handled 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 tremendously 
encourage mob spirit. We must continue to be ruled not



59a

Dissenting Opinion

by the mob, but by the Constitution and laws of our Coun­
try.

It is my opinion that a permanent injunction should issue 
against the City of Jackson, its Mayor, Commissioners and 
Chief of Police, and the Jackson Municipal Airport Au­
thority to restrain them from acting contrary to the fore­
going declarations and to protect to the best of their ability 
the right of any passenger or intended passenger to exer­
cise his constitutional rights on public transportation facili­
ties.

This permanent injunction should extend to the State 
Attorney General. While he is not responsible for the en­
forcement of State laws through the local courts, and has 
prosecuted none of the arrests found in the record, he par­
took 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.

A permanent injunction should issue against Cicero Carr 
requiring him to serve without discrimination at the Air­
port Restaurant all members of the public who use and 
frequent the Jackson Municipal Airport and request ser­
vice.

The carriers, Continental Southern Lines, Inc., Southern 
Greyhound Lines, Illinois Central Railroad, Inc., and Jack- 
son City Lines, Inc., have stated that they are acting 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 be guilty; and,



60a

Dissenting Opinion

that, promptly upon this court’s declaration that such stat­
utes and ordinances are unconstitutional, they will remove 
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 segregation 
of the races in any transportation facility. A simple de­
claratory judgment is therefore all that seems necessary 
as to said carrier 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 en­
forcement of the segregation statutes and any other stat­
utes used to enforce segregation be enjoined. They include 
in this prayer not only the restraining of future enforce­
ment, 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 same 
right. The Court stated:

“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 proceeding is brought to en­
force an alleged unconstitutional statute, which is the 
subject matter of inquiry in a suit already pending in



61a

Dissenting Opinion

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 
jurisdiction, 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. 8. at 161-162. See also, In re Sawyer, 1888, 124 
U. S. 200, 211; Tr-uax v. Raich, 1915, 239 U. S. 33, afPg 
219 Fed. 273 (D. Ariz., 1915). In terms of the anti-injunc­
tion statute, 28 U. S. C. §2283, it is a power “in aid of 
our jurisdiction” to prevent state courts from interfering 
with the determination of issues properly before the fed­
eral court. The propriety of granting such a request, how­
ever, is discretionary, and only the strongest equities will 
support such outright interference with state proceedings 
already commenced. I am of the opinion that such equities 
exist in this case.

The plaintiffs have had a motion for preliminary injunc­
tion 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. 23 U. S. C. §2284(4) provides, “the appli­
cation shall be given precedence and assigned for hearing



62a

Dissenting Opinion

at the earliest practicable day.” 28 U. S. C. §1253 pro­
vides that the granting or denial of this motion may be 
appealed directly to the Supreme Court; the appeal lies 
as a matter of right. R. C. A. v. United States, N. D. III., 
1950, 95 F. Supp. 660, aff’d, 341 U. S. 412 (1951). Thus, 
not only were the plaintiffs 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 to a conceded state of facts.” The 
essential facts in this case are undisputed, the law to be 
applied is clear, irreparable injury is established by evi­
dence 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. Greenville Airport Commission, 4 
Cir., 1960, 284 F. 2d 631. The defendants should not be 
allowed to rely upon their own continued unconstitutional 
behaviour for the purposes of defeating a motion for pre­
liminary injunction. I would follow the ruling in the Henry 
case. See also Clemons v. Board of Education, 6 Cir., 1956, 
228 F. 2d 853, 357; Board of Supervisors v. Wilson, 340 
U. S. 909, affirming 92 F. Supp. 986 (E. D. La., 1950) 
(preliminary injunction granting admission to L. S. U.). 
Had such an injunction issued, arrests and prosecution of 
of those arrested would have been terminated, starting at 
the very latest with the date of the first hearing, July 10, 
1961.



63a

Dissenting Opinion

The continued refusal to rule on this motion, although 
it has been pending since the 9th of June, is in violation 
of this court’s 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 Assistant Mississippi Attorney Gen­
eral, may have been warranted with respect to relief 
against his superior, but the City was present and, as sub­
sequent events have shown, it was both willing and able 
to carry on a vigorous defense in its own behalf.

Thus, because of the undisputed facts, the clear violation 
of the plaintiffs’ rights, and the unreasonable delay in 
ruling on the preliminary injunction, all prosecutions of 
passengers or intended passengers who were arrested for 
breach of the peace after the filing of the original com­
plaint on June 9,1961, but who, as the evidence in this case 
shows, were not themselves disorderly, should be enjoined.

Since this dissenting opinion was written, I have had 
the opportunity to read the memorandum opinion of Judge 
Frank M. Johnson, Jr., in Lewis, et al. v. The Greyhound 
Corporation, et al, M. D. Ala., C. A. 1724-N, rn/s, filed 
November 1,1961, and find myself in agreement with nearly 
all of the views expressed by Judge Johnson in that opinion.

I respectfully dissent.



64a

Order Dated November 17, 1961

I n the

UNITED STATES DISTRICT COURT
F ob the Southern District of Mississippi 

J  ackson Division 

Civil Action No. 3133

Samuel Bailey, et al.,

J oe T. P atterson, Attorney General 
of the State of Mississippi, et al.

Pursuant to the opinion of the Court filed herein on 
November 17, 1961, it is now ordered by the Court that 
jurisdiction of this action is retained, but that all further 
proceedings herein be stayed 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 of the 
state where any of the parties hereto may elect to institute 
an action for the adjudication of the issues.

Ordered, this the 17th day of November, 1961.

Sidney C. Mize 
United States District Judge

Claude F. Clayton 
United States District Judge



65a

Order Dated Decem ber 2 , 1961

I n the

UNITED STATES DISTRICT COURT 
F oe the Southern District of Mississippi 

J ackson D ivision 

Civil Action No. 3133

Samuel Bailey, et al.,
Plaintiffs,

J oe T. P atterson, Attorney General 
of the State of Mississippi, et al.,

Defendants.

Plaintiffs have filed herein a motion for injunction to­
gether with accompanying affidavit pending appeal under 
Rule 62(c) F. R. C. P., and the defendant, Joe T. Patter­
son, has filed as a counter affidavit the affidavit of Jack 
Travis, one of the attorneys for the City of Jackson. This 
motion has been considered by each member of this Court, 
and Judges Mize and Clayton, constituting a majority of the 
Court, are of the opinion that the opinion and order of this 
Court filed herein on November 17, 1961, did not, as re­
quired under Rule 62(c), F. R. C. P., either grant, dissolve 
or deny the issuance of an injunction as required under 
Rule 62(c), F. R. C. P. Judges Mize and Clayton are of 
the opinion that all further proceedings in this cause, 
including this motion, should be stayed for a reasonable 
length of time to permit plaintiffs to proceed in a State 
Court as authorized by the order of November 17, 1961.



66a

Order Dated December 2, 1961

It is therefore o r d e r e d , a d j u d g e d  and d e c r e e d  by the 
Court that pursuant to the opinion and order of this Court 
filed herein on November 17, 1961, that said action to­
gether with said motion for injunction pending appeal, be 
and the same are hereby retained on the docket of this 
Court, but that all further proceedings therein and thereon 
be stayed for a reasonable length of time to permit the 
parties to repair to the State Courts in which issues may 
now be pending, or to any court of the State of Mississippi 
which any of the parties hereto may elect to institute an ac­
tion for the adjudication of the issues.

Judge Hives dissents from this holding and will ex­
press his views herein below.

This, 28th day of November, 1961.

S idney C. Mize 
United States District Judge

Claude F. Clayton 
United States District Judge

(Handwritten)

I think that the judgment of November 17, 1961, is ap­
pealable. In my view it certainly has the effect of denying 
the plaintiffs’ long pending motion for a preliminary in­
junction. While I dissented and would have granted both 
a preliminary and a final injunction, I am at this stage 
bound by the judgment of November 17, 1961, concurred in 
by the majority, and I now vote to deny an injunction 
pending appeal. I respectfully dissent from the action 
of the majority purportedly refusing either to grant or 
to deny an injunction pending appeal.

This 2nd day of December, 1961.

R ichard T. R ives 
United States Circuit Judge



67a

City O rd inance R equ iring  C arrie r to 
M aintain  Separate  Facilities

An Ordinance R equiring Common Carriers of P ersons to 
Maintain in  the City of J ackson Separate W aiting Room 
and R est R oom A ccommodations and F acilities for the 
W hite and Colored R aces ; Making I t U nlawful for A ny 
P erson of the W hite R ace to U se Such A ccommodations 
and F acilities Designated and Set Apart for P ersons of 
the Colored R aces ; Making I t U nlawful for A ny P erson 
of the Colored R aces to U se Such A ccommodations and 
F acilities Designated and Set Apart for P ersons of the 
W hite Race; P rescribing P enalty for V iolation H ereof;

and Making T his Ordinance I mmediately E ffective.

W hereas, the citizens of the City of Jackson, Mississippi, 
have been accustomed for many generations to separation 
of the White race from the Colored races in the use of 
waiting room and rest room facilities and accommodations 
provided by common carriers of persons; and

W hereas, a sudden interm ingling of the races necessarily 
involved in the common use of such w aiting room and rest 
room accommodations and facilities would likely result in 
disturbances, breaches of the peace, disorder and con­
fusion; and

W hereas, the Council of the said City of Jackson owes 
the duty to its citizens, regardless of race, color, creed or 
station in life, to maintain good order and to prevent 
breaches of the peace, and thereby to promote the health 
and general welfare of all its citizens, and it has power 
to adopt and enforce ordinances to accomplish such pur­
poses ;



68a

City Ordinance Requiring Carriers to 
Maintain Separate Facilities

Now, T herefore, B e I t Ordained by the Council of the 
City of J ackson, Mississippi:

Section 1 . That all common carriers of persons which 
have heretofore provided and maintained separate wait­
ing rooms, rest rooms and like accommodations and facili­
ties be and they are hereby required to continue to main­
tain similar but separate waiting rooms, rest rooms and 
like accommodations and facilities for the White and for 
the Colored races, and to appropriately designate one of 
the said waiting rooms, rest rooms accommodations and 
facilities for use by persons of the White race only, and 
the other for use of persons of the Colored races only.

Section 2. That it shall be unlawful for any person of 
the White race to use as such the said accommodations so 
thus provided for use by persons of the Colored races only.

Section 3. That it shall be unlawful for any person of 
the Colored races to use as such the said accommodations 
so thus provided for use by persons of the ’White race only.

Section 4. That any person convicted of a violation of 
this ordinance shall be guilty of a misdemeanor and shall be 
punished by a fine of not less than twenty-five dollars 
($25.00), nor more than one-hundred dollars ($100.00), or 
by imprisonment in the City Jail not to exceed thirty (30) 
days, or by both such fine and imprisonment.

Section 5. It having been found by the Council of the 
said City of Jackson, Mississippi, that in the preservation 
of good order and peace of the municipality, and in the 
promotion of the general welfare of its citizens, it is neces­
sary for this ordinance to become immediately effective, 
and the same having been adopted by the unamimous vote



69a

City Ordinance Requiring Carriers to 
Maintain Separate Facilities

of all the members of the governing body of said city, it is 
further ordained that this ordinance shall be and become 
effective immediately.

Approved:

Allen C. Thompson, Mayor
C. W. Alexander, Commissioner
D. L. Luckey, Commissioner

Attest :

Mrs. J. R. Skinner 
City Clerk

(Seat.)

I, Mrs. J. R. Skinner, the duly appointed, qualified and 
acting City Clerk and lawful custodian of the minutes of 
the Council and seal of said city, certify that the forego­
ing is a true and exact copy of an Ordinance passed by 
the City Council at its regular meeting on January 12, 
1956, and recorded in Minute Book “FF”, page 149.

W itness my signature and official seal of office, this 
12th day of January, 1956.

(Seal)

Mrs. J. R. Skinner, 
City Clerk



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