Brown v South Carolina Electric Gas Company Appellants Brief

    United States Cttourl at Appeals
For the Fourth Circuit

No. 7276

SARAH MAE FLEMMING- BROWN,

vs.
Appellant.

SOUTH CAROLINA ELECTRIC AND GAS 
COMPANY, a corporation,

Appellee.

A ppeal F bom the  U nited States D istrict Court 
for the E astern D istrict of South Carolina

APPELLANT’S BRIEF

L incoln C. J enkins, Jr.,
1107% Washington Street, 

Columbia, South Carolina,

R obert L. Carter,
T hurgood Marshall,

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

Attorneys for Appellant.

Supreme Printing Co., Inc,, 114 W orth Street, N. Y, 13, BEekman 3-2320



I N D E X

PAGE

Statement .........................................................................  1
Statutes Involved............................................................ 4
Questions Presented ...................................................... 6
Argument:

Appellant has a valid cause of action for which 
relief should be granted in the federal courts...  7

Conclusion .................................................................   10

Table of Cases

Brown v. Board of Education, 347 U. S. 483 ............. 7
Chicot County Drainage District v. Baxter State 

Bank, 308 U. S. 371.................................................... 8
Ex parte Virginia, 100 U. S. 339, 347 ..........................  9
Fleming v. South Carolina Gas & Electric Co., 224 

F. 2d 752 ..... ................................................................ 7

Henderson v. United States, 339 U. S. 816...............  7
Iowa Des Moines National Bank v. Bennett, 284 

U. S. 239 .....................................................................  10
Norton v. Shelby Co., 118 U. S. 425 ............................  8
Plessy v. Ferguson, 163 IT. S'. 537 ..............................  3, 7, 9
Raymond v. Chicago Union Traction Co., 207 U. S.

20 ................................................................................... 9
Screws v. United States, 325 U. S. 91 ....................... 10
Slaker v. O’Connor, 278 U. S. 188..............................  7



11

Other Authorities
PAGE

Moore, Commentary on the United States Judicial 
C ode.....................................................  rj

Robeitson & Kirkham, Jurisdiction of the Supreme 
Court of the United States..........................................  7

United States Code:
Title 28 Secs. 1254-7 ................................................  7

Federal Rules of Civil Procedure:
Rule 41b ............................................... g

Code of Laws of South Carolina:
Sections 58, 1491, 1496 ...................................... 2, 4, 5, 6



MnxUh States (Enurt nf Appeals
For the Fourth Circuit

No. 7276

■o-

Sabah Mae F lemming B rown,

vs.
Appellant,

S outh Carolina E lectric and Gas Company, 
a corporation,

Appellee.

A ppeal F rom the U nited States D istrict Court 
for the E astern D istrict of South Carolina

--------------------------------------------------------- O '-------------------------------------------------—

APPELLANT’S BRIEF

Statement

This case was here last term sub num Flemming v. South 
Carolina Gas <& Electric Co., No. 6995, and is here again 
from a dismissal of the cause and a withdrawal of the case 
from the jury by the court below after appellant, plaintiff 
below, had rested her case and prior to the presentation 
of any evidence by appellee. The facts are essentially the 
same as before except that now there is testimony in the 
record (9A et seq.) to support appellant’s contentions.

This is an action for damages for denial of civil rights 
secured under the Constitution and laws of the United 
States. Appellant is an American citizen of Negro origin, 
and appellee is a common carrier for hire engaged in the



2

business of transporting the public on motor vehicles 
within Columbia, South Carolina, pursuant to a certificate 
of convenience and necessity granted by the state. Under 
Sections 58-1491-1496, Code of Laws of South Carolina, 
1952, segregation of the races on motor carriers operating 
within the state is required. Enforcement of this state 
policy is necessarily delegated to the motor vehicle carrier, 
and Section 58-1493 specifically empowers the bus driver 
to change the designation of space on the bus so as to 
increase or decrease the amount of space allocated to the 
races in order to make certain that no white or Negro 
passengers sit side by side. In the enforcement of the 
company’s regulation and the state’s policy in this regard, 
the controversy now in litigation arose.

On the morning of June 22, 1954, appellant, enroute 
to work, boarded one of the appellee’s buses at Main and 
Taylor Streets. She paid her fare and walked onto a very 
crowded bus (13A). Negro passengers, who were in the 
majority, were seated as far forward as the second seat 
from the front while others could not find seats and were 
standing (14A). There were no vacant seats when appel­
lant boarded the bus, and she stood in the forward section 
of the bus next to the second seat from the front (14A). 
This seat was occupied by a white woman who reached her 
destination shortly after appellant boarded the bus (15A), 
and when this woman left her seat, appellant took the seat 
vacated (15A). The bus driver, seeing her take the seat, 
made a rude remark and ordered her to get up (15A). At 
this point, appellant testified that she pulled the cord to 
leave the bus at the next stop, although she had not reached 
her destination, and attempted to follow two white people 
out of the front door but was ordered to get out through 
the back (19A). In enforcing this command, the bus driver 
hit appellant, making her lose her balance. A friend of 
hers kept her from falling, and the two of them left the 
bus by the back door, pushing through the crowd (20A).



3

Appellant testified that she was in pain, cancelled going 
to her job, went to a hospital and from there went home 
where, pursuant to the instructions given at the hospital, 
she treated herself (21A). Appellant’s story was cor­
roborated by two other witnesses (32A-50A). Pursuant to 
law, custom, regulation and usage, colored passengers fill 
appellee’s buses from the rear and white passengers fill 
the buses from the front, and no Negro passengers could 
sit beside a white passenger (34A).

After appellant had rested her case, appellee moved to 
dismiss pursuant to Rule 41b of the Federal Rules of Civil 
Procedure on the ground that no right to relief had been 
shown (51A). The motion was at first refused (51A), but 
on the next morning with the jury present, the court recon­
sidered its prior decision and withdrew the case from the 
jury and dismissed it on the ground that no person had a 
civil right to violate a valid and subsisting state law; that 
at the time the action complained of occurred, the segrega­
tion law under which appellee acted was constitutional and 
complied with the construction of the Fourteenth Amend­
ment given by the Supreme Court in Plessy v. Ferguson, 
163 U. S. 537; that while this Court repudiated the Plessy 
doctrine, it did not express such disagreement until some 
time after the events which are the subject of this litigation 
took place, and the effect of its disagreement was not retro­
active so as to render appellee liable under the facts dis­
closed by this record (52A, 53A).

As a further reason for granting the motion to dismiss, 
the court said that the evidence showed that the Negro 
and white passengers used the same door to enter and 
leave the buses; that it was the custom for white passengers 
to occupy the front seats and Negroes rear seats Avith no 
established line marking a division in the seating arrange­
ment; and that appellant was not sitting or attempting to 
sit among white passengers; that no white passenger was 
standing and appellant Avas sitting behind white passengers,



4

lienee the bus driver was not acting under color of state 
law in enforcing racial segregation when he ordered appel­
lant to change her seat. For this reason, the court held 
that the federal court was without jurisdiction.

Statutes Involved

§ 58-1491. Segregation required.

All passenger motor vehicle carriers operating in this 
State shall separate the white and colored passengers in 
their motor buses and set apart and designate in each bus 
or other vehicle a portion thereof, or certain seats therein, 
to be occupied by white passengers and a portion thereof, 
or certain seats therein, to be occupied by colored pas­
sengers, any such carrier that shall fail, refuse, or neglect 
to comply with the provisions of this section shall be guilty 
of a misdemeanor and, upon indictment and conviction, 
shall be fined not less than fifty dollars nor more than 
two hundred and fifty dollars for each offense.
§ 58-1492. D iscrimination in accommodations prohibited.

Such carriers shall make no difference or discrimination 
in the quality or convenience of the accommodations pro­
vided for the two races under the provisions of § 58-1491.

§ 58-1493. Changing space assigned or requiring change
OF SEATS.

The driver, operator, or other person in charge of any 
such motor vehicle shall at any time when it may be neces­
sary or proper for the comfort and convenience of pas­
sengers so to do, change the designation so as to increase 
or decrease the amount of space or seats set apart for 
either race and may require any passenger to change his 
seat as it may be necessary or proper. But no contiguous 
seats on the same bench shall be occupied by white and 
colored persons at the same time. Any driver, operator



5

or other person in charge of any such vehicle who shall 
fail or refuse to carry out the provisions of this section 
shall be guilty of a misdemeanor and upon conviction there­
of shall be lined not less than five dollars nor more than 
twenty-five dollars for each offense.

§"58-1494. D river a special, policeman.

Each driver, operator or person in charge of any such 
vehicle, in the employment of any company operating it, 
while actively engaged in the operation of such vehicle, 
shall be a special policeman and have all the powers of a 
conservator of the peace in the enforcement of the provi­
sions of this article and in the discharge of his duty as 
such special policeman in the enforcement of order upon 
such vehicle. Such driver, operator or person in charge 
of such, vehicle shall likewise have the powers of a con­
servator of the peace and of a special policeman while in 
pursuit of persons for disorder upon such vehicles or for 
violating the provisions of this article and until such per­
sons as may be arrested by him shall have been placed in 
confinement or delivered over to the custody of some other 
conservator of the peace or police officer. Acting in good 
faith, he shall be for the purposes of this article the judge 
of the race of each passenger whenever such passenger has 
failed to disclose his race.

§ 58-1495. V iolations of article, by passengers.

All persons who fail while on any motor vehicle carrier 
to take and occupy the seat or seats or other space assigned 
to them by the driver, operator or other person in charge 
of such vehicle or by the person whose duty it is to take 
up tickets or collect fares from passengers therein or who 
fail to obey the directions of any such driver, operator or 
other person in charge as aforesaid to change their seats 
from time to time as occasions may require, pursuant to 
any lawful rule, regulation or custom in force by such



6

lines as to assigning separate seats or other space to white 
and colored persons, respectively, having been first advised 
of the fact of such regulation and requested to conform 
thereto, shall be guilty of a misdemeanor and upon con­
viction thereof shall be fined not less than five dollars nor 
more than twenty-five dollars for each offense.

§ 58-1496. E jection of such passengers.

Any person who shall violate any of the provisions of 
58-1495 may be ejected from any such vehicle by any 

driver, operator or person in charge of such vehicle or by 
any police officer or other conservator of the peace and, if 
any such person ejected shall have paid his fare upon such 
vehicle, he shall not be entitled to the return of any part 
of it. For the refusal of any such passenger to abide by 
the request of the person in charge of the vehicle, as afore­
said, and his consequent ejection from the vehicle, neither 
the driver, operator, person in charge, owner, manager, or 
bus company operating the vehicle shall be liable for dam­
ages in any court.

Questions Presented

1. Whether appellant’s contention that the enforcement 
of a state policy requiring the segregation of Negro and 
white passengers in intrastate carriers has violated her 
rights under the Fourteenth Amendment and her claim for 
damages for injuries resulting therefrom constitute a valid 
cause of action cognizant in the federal courts!

2. Whether the fact that the South Carolina state policy 
requiring the segregation of races on motor vehicle carriers 
was declared unconstitutional by this Court after the events 
herein complained of took place deprives the appellant of 
the right to suit for damages against appellee for injuries 
sustained in its enforcement of an unconstitutional statute!



7

ARGUM ENT

Appellant Has A  Valid Cause of Action For Which 
Relief Should be Granted in the Federal Courts.

1. The state policy requiring the segregation of races 
is unconstitutional. In Flemming v. South Carolina Gas & 
Electric Co., 224 F. 2d 752, this Court held that the South 
Carolina statutes were unconstitutional and that appellant 
had a valid cause of action over which federal courts had 
jurisdiction. This Court reasoned that in the light of the 
principles enunciated in Brown v. Board of Education, 347 
U. S. 483, and Henderson v. United States, 339 IT. S. 816, 
that the “ separate but equal” doctrine of Plessy v. Fer­
guson was no longer controlling and that segregation of 
the races in intrastate commerce pursuant to state law 
was unconstitutional. Appellee took a direct appeal to the 
United States Supreme Court. That Court dismissed the 
appeal (351 IT. S. 901) in a terse opinion citing Slaker v. 
O’Connor, 278 IT. S. 188. Authorities on federal jurisdic­
tion disagree as to the import and meaning of Slaker v. 
0 Connor. Moore, “ Commentary on the United States 
Judicial Code,” finds no basis for a holding that direct 
appeals from decisions of the United States Courts of Ap­
peal to the Supreme Court of the United States will not lie 
under Title 28, United States Code, § 1254, except from a 
final judgment. See page 554, and Note 114 at page 552, 
where Moore indicates that Slaker v. O’Connor is authority 
for the proposition that direct appeals will be dismissed 
when based on frivolous grounds. On the other hand, 
Robertson & Kirkham, “Jurisdiction of the Supreme Court 
of the United States,” § 125, cites Slaker v. O’Connor as 
authority for the proposition that a direct appeal will not 
lie to the United States Supreme Court from decisions of 
United States Courts of Appeal except from a final judg­
ment.



8

Whatever the import of the Supreme Court’s dismissal 
in this case, it is dear that the decision of this Court as 
to the unconstitutionality of the South Carolina statute 
was left undisturbed and is now the law of this case.

Appellant has a valid cause of action for damages. The 
effect of declaring a statute unconstitutional is as stated 
in Norton v. Shelby Co., 118 U. S. 425, 442: “ An unconsti­
tutional Act is not a law; it confers no rights; it imposes 
no duties; it affords no protection; it creates no office; it is, 
in legal contemplation, as inoperative as though it has 
never been passed.” And there has never been any direct 
holding of the United States Supreme Court of the United 
States disagreeing with or repudiating the doctrine enun­
ciated in Norton v. Shelby. True, in Chicot Co. Drainage 
District v. Baxter State Bank, 308 U. S. 371, 374, the court 
said:

The courts below have proceeded on the theory 
that the Act of Congress, having been found to be 
unconstitutional, was not a law; that it was inopera­
tive, conferring no rights and imposing no duties. 
. . .  it is quite clear, however, that such broad state­
ments as to the effect of a determination of uncon­
stitutionality must be taken with qualifications. The 
actual existence of a statute, prior to such determina­
tion, is an operative fact and may have consequences 
which cannot justly be ignored. The past cannot 
always be erased by a judicial declaration. The 
effect of the subsequent ruling as to invalidity may 
have to be considered in various aspects—with re­
spect to certain relations, individual and corporate, 
and particular conduct, private and official.

In that case, the court held that bondholders who were 
parties to a proceedings establishing the liability of the 
defendant were bound by that decision despite the fact that 
subsequent thereto the statute under which defendant was 
operating was declared unconstitutional. The effect of the



9

court’s holding was merely that a party could not make a 
collateral attack upon the jurisdiction of a court as to pro­
ceedings in which he had been a party. As to him, the 
matter was res judicata since he could have, but did not, 
directly raise there any question of invalidity in the pro­
ceedings in which he was involved. In short, all the court 
was holding was that the petitioner was bound by res 
judicata and could not collaterally relitigate the contro­
versy already settled after a subsequent declaration of 
unconstitutionality.

But that is not the case here. In this case this appellant 
has brought a suit for damages against defendant for vio­
lation of her constitutional rights. This Court has held 
that the statutes under which defendant was operating Was 
in conflict with the Constitution of the United States and 
that a prima facie case for a violation of appellant’s civil 
rights within the jurisdiction of the federal court was 
present. It should be remembered that the case was here 
on a motion to dismiss when that decision was rendered. 
While the court below granted the motion to dismiss on 
the theory that there was no valid cause of action existing 
in that Plessy v. Ferguson was controlling, if the present 
view of the court below had been correct, this Court would 
have disagreed with its rationale but would have affirmed 
its judgment for the reasons now given by the court below.

2. The further basis on which the court dismissed the 
case was that the bus driver was not acting under color of 
state law in ordering appellant to move from her seat. 
This, we submit, will not stand. The bus driver, as the 
agent, of the company, was acting under color of state law 
and his action becomes state action, nonetheless, despite 
the fact that he might have been acting contrary to state 
law or outside of his authority. As the United States 
Supreme Court indicated in Ex parte Virginia, 100 U. S. 
339, 347, that fact does not keep the ease from being state 
action. See in accord, Raymond v. Chicago Union Traction



10

Co., 207 U. S. 20; Iowa-Des Moines National Bank v. Ben­
nett, 284 U. S. 239 ; Screws v. United States, 325 U. S. 91. 
The crux of the matter is that the officer is so clothed with 
power so that even though acting contrary to state law, 
he acts under color of law. Such is the situation here. 
When ordering a person to change his seat, the driver was 
acting under color of law in enforcing the state’s policy, 
and there is federal jurisdiction.

CONCLUSION

We submit, therefore, that the judgment of the 
court below was in error for the reasons hereinabove 
cited and should be reversed.

L incoln C. J enkins, J r .,
1107-̂ 2 Washington Street, 

Columbia, South Carolina,

R obert L. Carter,
T hurgood Marshall,

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

Attorneys for Appellant.