Cummings v. City of Charleston Brief and Appendix for Appellants
Public Court Documents
January 1, 1960

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Brief Collection, LDF Court Filings. Cummings v. City of Charleston Brief and Appendix for Appellants, 1960. 0a94b1bb-ae9a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/fd6ffc63-c857-4163-8f41-acbb6341debb/cummings-v-city-of-charleston-brief-and-appendix-for-appellants. Accessed April 29, 2025.
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Itutpfc (Hour! nf A p p a l s F oe the F ourth Circuit I n t h e John H. Cummings, J ohn L. Chisolm, W illiam Cromwell, A rthur P rice, E dward V. P ayne, R obert J ohnson, Dan Nowell, E rnest Cromwell, J ames N. F orest, H enry B oyd, B enjamin W right, Clarence Brown and H orace Gross, for themselves and all other persons similarly situated, Plaintiff's-Appellants, T he City op Charleston, a Municipal Corporation, T he Charleston Municipal Golp Course Commission, Gerald M. Carter, Chairman, A lfred 0 . H alsey, Cornelious 0 . T hompson, T. Moultrie M cK evlin, W illiam A. Dotterer, Leroy Nelson and C. D issell Jenkins, members of the Charleston Municipal Golf Course Commission; and J ohn E. A dams, Manager of the Charleston Municipal Golf Course, Defendants-Appellees. BRIEF AND APPENDIX FOR APPELLANTS Matthew J. P erry L incoln C. J enkins, J r. 1107% Washington Street Columbia, S. C. T hurgood Marshall J ack Greenberg J ames M. Nabrit, III 10 Columbus Circle New York 19, N. Y. Attorneys for Appellants Norman C. A maker, Of Counsel. INDEX TO BRIEF Statement of the Case ...................................................... 1 Question Presented ....... 5 How the Question Arises .................................................. 5 Statement of the Facts .................................................... 5 Argument .............................................................................. 6 Conclusion ....................................................... 10 T able oe Cases: Boyd v. United States, 116 U.S. 616 ............................... 9 Boynton v. Virginia,------U .S .---------, 5 L.ed. 2 d -----.... 9 Brown v. Board of Education, 349 U.S. 295 ................. 7 Danner v. Holmes (5th Cir. January 9, 1961) .... .......... 8 Dawson v. Mayor of the City of Baltimore, 220 F.2d 386 (4th Cir. 1955), aff’d 350 U.S. 877 ..................... 4 Hawkins v. Board of Control of Florida, 350 U.S. 413 (1956) ................................................................................... 7 Henry v. Greenville Airport Commission (4th Cir. 8247) .................................................................................. 7, 9 Holmes v. City of Atlanta, 350 U.S. 879 ......................... 4 Lucy v. Adams, 350 U.S. 1 (1955) .................................... 8 McLaurin v. Oklahoma State Regents, 339 U.S. 637 (1950) PAGE 7 11 Sipuel v. Board of Regents, 332 U.S. 631 (1948) ......... 7 Sweatt v. Painter, 339 U.S. 629 (1950) ..... ....... .......... 7 Tate v. Dep’t of Conservation and Development etc., 352 U.S. 838 ................................. ..................................... 4 United States v. Louisiana,------ U .S .------- , 5 L.ed. 2d ....... . ........ - ............. -...... .................................................... 8 INDEX TO APPENDIX Complaint .............................. ......... .............. ............... . la Answer .................................................................................. 8a Motion for Preliminary Injunction ........ ........................ 14a Affidavit of John H. Cummings ............... ................ ...... 15a Affidavit of John L. Chisolm ............................... 17a Affidavit of Benjamin Wright ......................................... 19a Hearing on Motion for Preliminary Injunction .... 21a James L. White Direct ................................ 21a Cross .............................................................. 30a John L. Chisolm Direct .... 34a Cross ...................................................................... 35a Colloquy ......... 35a PAGE John E. Adams Direct .................................................................... 38a Cross ...................................................................... 39a Colloquy on Granting of M otion............................... 39a Order Denying Motion for Preliminary Injunction .... 46a Hearing on Trial ................................................................ 48a Colloquy ........................................................................ 48a John E. Adams Direct .................................................................. 49a Cross ...................................................................... 51a Redirect ................................................................ 52a Colloquy on Supreme Court’s 1954 Decision ....... 53a Order Granting Permanent Injunction........................... 60a Notice of Appeal ................................................................ 66a Ill PAGE 1 st t h e I n M (Orwrt of A p p e a ls F ob the F ourth Circuit --------....— ..... — ........... .......................... .............................. . J ohn H. Cummings, J ohn L. Chisolm, W illiam Cromwell, A rthur P rice, E dward Y. P ayne, R obert J ohnson, Dan Nowell, E rnest Cromwell, J ames N. F orest, H enry B oyd, Benjamin W right, Clarence Brown and H orace Gross, for themselves and all other persons similarly situated, Plaintiffs-Appellants, T he City oe Charleston, a Municipal Corporation, T he Charleston Municipal Gole Course Commission, Gerald M. Carter, Chairman, A lfred 0 . H alsey, Cornelious 0 . T hompson, T. Moultrie McK evlin, W illiam A. Dotterer, L eroy Nelson and C. D issell Jenkins, members of the Charleston Municipal Golf Course Commission; and J ohn E. A dams, Manager of the Charleston Municipal Golf Course, Defendants-Appellees. BRIEF FOR APPELLANTS Statement o f the Case This civil action brought by plaintiffs (John H. Cum mings, John L. Chisolm, Robert Johnson, and Benjamin Wright), Negro citizens and residents of the City and County of Charleston, South Carolina and of the United States on behalf of themselves and others similarly situ ated, seeks to secure immediate access to the recreational 2 facilities of the Charleston municipal golf course, a public facility of the City of Charleston, South Carolina. Plain tiffs have been denied the use of those facilities because of their race and color. The court below permanently enjoined defendants (The City of Charleston, The Charleston Munic ipal Golf Course Commission, and the Manager of the golf course) from enforcing those sections of the Code of Laws of South Carolina of 1952 (§§51-182-51-184) which require segregation of the races in parks and recreational areas in any County of South Carolina having a city with a popula tion of more than sixty thousand persons and the concomi tant policy and practice of racial discrimination based upon those sections, declaring those sections unconstitutional and void under the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. The court below entered judgment approxi mately three months after hearing on the merits but decreed that the injunction should not become effective until eight (8) months from the date thereof and it is from this portion of the order of injunction that plaintiffs appeal. Previously, essentially the same evidence had been adduced on hearing for preliminary injunction, which was denied. Hearing on the merits was scheduled for approximately six weeks fol lowing the preliminary hearing. This action was commenced by filing a complaint, July 6, 1959 in the United States District Court for the Eastern District of South Carolina, Charleston Division. Jurisdic tion was invoked under 28 U.S.C. §§1331,1343 and 42 U.S.C. 1983 alleging deprivation of rights protected under Section One of the Fourteenth Amendment to the Constitution of the United States and by 42 U.S.C. §1981. The action was brought as a class suit pursuant to Rule 23(a) (3) of the Federal Rules of Civil Procedure. The com plaint (App. p. la) alleged that the defendants had es 3 tablished and were maintaining the Charleston Municipal Golf Course “ as a part of the recreational facilities and advantages to citizens and residents of the City of Charles ton;” that “white residents of Charleston County are per mitted to use said course” but that in accordance with the requirements of certain sections of the South Carolina Code of Laws for 1952 “the named plaintiffs and the class of persons they represent . . . have been and will continue to be excluded by the defendants from the use of these fa cilities because they are Negroes . . . unless the relief prayed in this complaint is granted.” Alleging denial of rights under the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States, the complaint prayed for the relief of de claratory judgment and injunction pursuant to 28 U.S.C. §§2201, 2202 and Eule 57, F.E.C.P., for temporary and permanent injunctions to restrain defendants from enforc ing certain sections of the Code of Laws of South Carolina for 1952 pursuant to 28 U.S.C. §§2281, 2284, and for a declaration of the unconstitutionality of those sections. The defendants answered (App. p. 8a) admitting the material allegations of the complaint but denying that the policy, custom, and usage of the defendants in providing separate golfing facilities for white and Negro residents of Charleston was unlawful and constituted a denial of plaintiffs’ constitutional rights. Defendants also denied that the specified sections of the South Carolina Code were un constitutional. The answer prayed for dismissal of the complaint. Thereafter plaintiffs moved with affidavits for a prelim inary injunction to restrain defendants from “making any distinctions based upon color in regard to the use of the Charleston Municipal Golf Course.” After a hearing held on June 28, 1960 in the City of Charleston, S. C. (a tran 4 script of relevant portions appears App. p. 21a), this was denied on June 29,1960. The cause then came on for a full hearing on the merits on September 7, 1960. (A transcript of relevant portions appears App. p. 48a.) The transcript of the hearing on motion for preliminary injunction was made a part of the record and additional testimony was taken. The Court below, after hearing decided to recuse itself stating that it disagreed with the United States Supreme Court decisions governing this question (App. p. 57a). Thereafter, how ever, the court did in fact undertake to decide the cause. It issued an opinion and order dated 26 November 1960 which, as set forth above, enjoined defendants from en forcing their policy of racial discrimination and declared Sections 51-182 through 51-184 of the Code of Laws of South Carolina for 1952 unconstitutional on the authority of Holmes v. City of Atlanta, 350 U.S. 879; Dawson v. Mayor of the City of Baltimore, 220 F. 2d 386 (4th Cir. 1955), aff’d 350 U.S. 877 and Tate v. Department of Con servation and Development, etc., 352 U.S. 838. The court however, concluded that it would be “ equitable” to grant the defendants a reasonable period of time to comply with its order and therefore postponed the effective date of its order until eight months from the date thereof. The text of the opinion and order attached is set out in the Ap pendix, infra, p. 60a. Notice of appeal was filed on December 9, 1960. 5 Question Presented Whether an eight month delay imposed by the court below in making effective its order enjoining defendants from denying the use of municipally owned and operated recreational facilities is a denial of equal protection of the laws secured by the Fourteenth Amendment to the Con stitution of the United States where such delay was im posed without any evidentiary support demonstrating its necessity. How the Question Arises The question arises in the record from the trial court’s determination that its order dated 26 November 1960 en joining the defendants from enforcing the statutes, policy, custom and practice pursuant to which plaintiffs had been refused permission to use the facilities of defendant golf course should not be made effective until eight (8) months from the date of its issuance. Statement o f Facts The facts appear from the complaint, the admissions in the answer, from the record of testimony at the hearing- on the motion for preliminary injunction, and from the record of the trial. None of the material allegations of the complaint or evidence has been controverted. On or about November 23, 1958, plaintiffs appeared at defendant golf course with other Negro residents of the City of Charleston and requested permission to play. The request was made to Mr. John E. Adams, Manager, and a defendant herein (Comp., App. p. 5a). Mr. Adams quoted to defendants from sections 51-181-51-184 of the South 6 Carolina Code of Laws for 1952 which require segregation of the races in the use of public recreational facilities and informed them that because of this law he was rejecting their request for permission to play golf (E l, App. p. 24a*). He also stated that his refusal was because of the plaintiffs’ race (El, Id.). “White only” signs were posted at the entrance to the course pursuant to Section 51-182 of the Code of Laws (Comp., App. p. 5a). The plaintiffs felt that as taxpayers of the City of Charleston, they were entitled to play on the defendants’ course (El, App. p. 26a). The manager, Mr. Adams, has testified that the policy, custom and usage of excluding Negroes still persists and that signs which read “ white only” are still posted at the entrance to the course (El, App. p. 39a). He further tes tified that he and other officials still consider themselves bound by Sections 51-181, 51-182, 51-183 and 51-184 of the Code of Laws of South Carolina for 1952 (ET, App. p. 50a). Argument The eight months’ delay of relief imposed by the Court below denies plaintiffs the equal protection of the laws, by arbitrarily postponing the enforcement of their constitu tional rights. Not a shred of evidence was introduced to support this delay. We need not speculate what evidence, if any, could support a delay of this sort for it is clear that in this case no facts alleged to justify a delay were even presented to the court below. The Supreme Court has held that the rights protected by the equal protection clause of the Fourteenth Amend- # RI refers to the record of the hearing on motion for preliminary injunction. RT refers to the record of the trial on the merits. 7 ment are “personal and present” (emphasis added). Sweatt v. Painter, 339 U.S. 629, 635 (1950); McLaurin v. Oklahoma State Regents, 339 U.S. 637, 642 (1950). Cf. Sipuel v. Board of Regents, 332 U.S. 631 (1948). Only in connection with elementary and high school desegregation has the Supreme Court sanctioned any delay in the realization of the right to equal protection of the laws. Brown v. Board of Education, 349 U.S. 295, 300 (1955). But even in such cases delay must be reasonably related to administrative obstacles in the task of changing from a biracial to a nonracial school system. Indeed, in connection with de segregation at the university level, no delay has been found justified by the Supreme Court of the United States. As that Court said in Hawkins v. Board of Control of Florida, 350 U.S. 413, 414 (1956): As this case involves the admission of a Negro to a graduate professional school, there is no reason for delay. He is entitled to prompt admission under the rules and regulations applicable to other qualified can didates. Sweatt v. Painter, 339 U.S. 629, 94 L.ed. 1114, 70 S.Ct. 848; Sipuel v. University of Oklahoma, 332 U.S. 631, 92 L.ed. 247, 68 S.Ct. 299; cf. McLaurin v. Oklahoma State Begents for Higher Education, 339 U.S. 637, 94 L.ed. 1149, 70 S.Ct. 927. Moreover, this Court has recently held that there may be no delay in granting access to governmentally owned public accommodations, even before a trial on the merits, where the right to relief is clearly established on motion for preliminary injunction. Henry v. Greenville Airport Commission (4th Cir. 8247), decided in this Court on De cember 1, 1960, held that the trial court “ has no discretion to deny relief by preliminary injunction to a person who clearly establishes by undisputed evidence that he is being denied a constitutional right” . It is submitted that there 8 is even less reason for delay when constitutional rights have been finally adjudicated as in the case at bar. This case is, perhaps, illuminated by reference to the similar problem of the considerations governing stays of injunctive orders pending appeals on the merits. While the defendants in this case have not appealed, and appar ently see no way of overturning the injunctive decree, they have, nevertheless, been granted a stay. But this is a case where no stay would be justified even if an appeal from the injunction had been filed, for a stay may not be granted without any legal or factual basis therefor. See Lucy v. Adams, 350 U.S. 1 (1955) where a stay pending appeal was vacated. The rule of the Lucy case has been applied as recently as January 9, 1961, in Danner v. Holmes (5th Cir. unreported), where Chief Judge Tuttle vacated a stay pending an appeal of an order of the United States District Court for the Middle District of Geor gia, which required that Negro students be admitted to the University of Georgia. The only ground urged in support of the stay, which was a recognition of the right of every litigant to appeal an adverse decision, was held to be insufficient be cause there was no “ substantial likelihood of a reversal of the District Court.” The Supreme Court on January 10, 1961, unanimously rejected an application to vacate Judge Tuttle’s order. The Supreme Court also applied the same principle in denying a requested stay where the ground of appeal was “ obviously without merit” in United States v. Louisiana,------ U .S .------- , 5 L.ed. 2d 245 (1960). Thus, it is submitted that in this case where no appeal has been taken, no grounds are urged for reversal of the injunctive decree, and there is no factual showing in support of the delay of enforcement, it is plain that the injunctive decree should be implemented forthwith. 9 The right, which plaintiffs seeks to assert in this case, that of equal access to public recreation, perhaps may be deemed hardly as significant as the right of equal access to, for example, public educational facilities. But more is involved here than the right to play golf before expiration of the eight months’ tstay. If this constitutional right can be de nied with no factual or legal basis, there is no reason why eight months may not in another case become twelve months — or more, or why the present stay may not be extended. The decision below might apply with equal logic to an air port terminal, see Henry v. Greenville Airport Comm., supra, a bus terminal, see Boynton v. Virginia, ------ U.S. ------ , 5 L.ed. 2d------ , and every other public facility. As the Supreme Court of the United States said in Boyd v. United States, 116 U.S. 616, 635: . . . illegitimate and unconstitutional practices get their first footing in that way, namely: by silent ap proaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to gradual depreciation of the right, as if it consisted more in sound than in sub stance. It is the duty of courts to be watchful for the constitutional rights of the citizens, and against any stealthy encroachments thereon. It is therefore important not merely for the vindication of plaintiffs’ rights in this case, but for the integrity of the constitutional principle at stake, that the decision below be reversed insofar as it postpones the enforcement of ap pellants’ constitutional rights. 10 CONCLUSION It is respectfully submitted that the decree of the Court below should be reversed insofar as it postpones the effective date of its order. Appellants further pray that if this relief be granted the Court accelerate the issuance of its mandate and for such other and further relief as may be just and proper. Respectfully submitted, Matthew J. P erry L incoln C. J enkins, Jr. 1107% Washington Street Columbia, S. C. T hurgood Marshall Jack Greenberg J ames M. Nabrit, III 10 Columbus Circle New York 19, N. Y. Attorneys for Appellants Norman C. A maker, Of Counsel. A P P E N D I X F oe the Eastern District of South Carolina Charleston Division UNITED STATES DISTRICT COURT J ohn H. Cummings, J ohn L. Chisolm, W illiam Cromwell, A rthur Price, E dward V. P ayne, R obert J ohnson, Dan Nowell, E rnest Cromwell, J ames N. F orest, Henry B oyd, B enjamin W right, Clarence Brown and H orace Gross, for themselves and all other persons similarly situated, Plaintiffs, T he City of Charleston, a Municipal Corporation, T he Charleston Municipal Golf Course. Commission, Gerald M. Carter, Chairman, A lfred 0 . H alsey, Cornelious 0. T hompson, T. Moultrie M cK evlin, W illiam A. D otterer, L eroy Nelson and C. D issell J enkins, members of the Charleston Municipal Golf Course Commission; and J ohn E. A dams, Manager of the Charleston Municipal Golf Course, Defendants. Complaint The plaintiffs respectfully represent to the Court as follows: 1. (a) The jurisdiction of this Court is invoked under Title 28, United States Code, Section 1331. This action arises under the Fourteenth Amendment to the Constitution of the United States, Section 1, and under the Act of Con gress, Revised Statutes, Section 1977, derived from the Act of May 31, 1870, Ch. 14, Section 16, 16 Stat. 144 (Title 2a 42, United States Code Section, Section 1981), as hereafter more fully appears. The matter in controversy, exclusive of interest and costs, exceeds the sum of Ten Thousand ($10,000.00) Dollars. (b) Jurisdiction is also invoked under Title 28, United States Code, Section 1343. This action is authorized by the Act of Congress, Revised Statutes, Section 1979, derived from the Act of April 20, 1871, Ch. 22, Section 1, 17, Stat. 13 (Title 42 United States Code, Section 1983), to be com menced by any citizen of the United States or other person within the jurisdiction thereof, to redress the deprivation under color of state law, statute, ordinance, regulation, custom or usage of rights, privileges and immunities secured by the Fourteenth Amendment to the Constitution of the United States and by Act of Congress, Revised Statutes, Section 1977, derived from the Act of May 31, 1870, Ch. 14, Section 16, 16 Stat. 144 (Title 42, United States Code, Section 1981) providing for the equal rights of citizens and of all persons within the jurisdiction of the United States, as hereafter more fully appears. (c) Jurisdiction is further invoked under Title 28, United States Code, Sections 2281 and 2284. This is an action for temporary and permanent injunctions to restrain defen dants, as officials of the State of South Carolina, their agents and servants, in the enforcement of Sections 51-181, 51-182, 51-183 and 51-184, Code of Laws of South Carolina for 1952, on the ground that the aforesaid statutes deny rights secured by the Fourteenth Amendment of the Con stitution of the United States. 2. This is a class action authorized under Rule 23(a) (3) of the Federal Rules of Civil Procedure. The rights here Complaint 3a involved are of common and general interest to the members of the class represented by plaintiffs, namely, Negro citizens and residents of the City and County of Charleston, South Carolina and of the United States who have been denied the use of public golfing facilities in the City of Charleston, South Carolina, The members of the class are so numerous as to make it impracticable to bring them all before the Court individually as parties plaintiff. The plaintiffs and those they represent as a class all seek common relief based upon common questions of law and fact affecting their several rights. 3. This is a proceeding for declaratory judgment and injunction under Title 28, United States Code, Sections 2201 and 2202, and Rule 57, Rule of Civil Procedure, for the purpose of having this Court declare the rights and legal relationships of the parties and for an injunction im plementing the rights so declared, to w it: Whether, under the equal protection and due process clauses of the Fourteenth Amendment to the United States Constitution defendants may enforce against plaintiffs and others similarly situated Sections 51-181, 51-182, 51-183 and 51-184 of the Code of Laws of South Carolina and enforce the custom, practice and usage of racial segregation, each of which deny to plaintiffs the right of using the Charleston Municipal Golf Course maintained by the City of Charleston for white persons only. 4. The plaintiffs are all citizens and residents of the City of Charleston, South Carolina and of the United States, and are classified as Negroes under the laws of the State of South Carolina, except that James L. White is a resident of Charleston County. Complaint 4a 5. The City of Charleston, South Carolina is a Municipal Corporation, created and existing under and pursuant to the laws of the State of South Carolina. 6. The Charleston Municipal Golf Course Commission is an official organ of the City of Charleston, having the power to supervise and promulgate rules concerning the Charleston Municipal Golf Course pursuant to authority vested and accorded it under the ordinances of the City of Charleston, South Carolina; that Gerald M. Carter is Chair man of the Charleston Municipal Golf Course Commission and that Alfred 0. Halsey, Cornelious 0. Thompson, T. Moultrie McKevlin, William A. Dotterer, Leroy Nelson and C. Dissell Jenkins, are members thereof; and that John E. Adams is the Manager of said Charleston Municipal Golf Course. Said defendants are sued in their official and in dividual capacity. 7. Defendants have established and are maintaining and operating a golf course known as the Charleston Municipal Golf Course as a part of the recreational facilities and advantages to citizens and residents of the City of Charles ton, and the Defendants herein are charged with the duty of maintaining, operating and supervising same. White residents of Charleston County are permitted to use said course. As a part of their supervisory control and authority with respect to said golf course, the Defendants are vested with the power to promulgate and enforce rules and regu lations concerning the use, availability and admission to said Charleston Municipal Golf Course, to the person who desires to use same, provided the said rules and regulations are not in conflict with the sections of the statutes mentioned above in paragraph 3. Complaint 5a 8. On or about November 23,1958 the plaintiffs presented themselves at the Charleston Municipal Golf Course and sought permission to play golf, directing their request to the defendant, John E. Adams, Manager of said Golf Course, whereupon said defendant refused to grant per mission to plaintiffs. In accordance with the requirement of Section 51-182 of the Code of Laws of South Carolina for 1952, signs which read “ white only” were posted at the entrance to the Charleston Municipal Golf Course. 9. The plaintiffs properly presented themselves and re quested permission to use the facilities of the Charleston Municipal Golf Course, and were denied the use of these facilities by the defendants solely because of their race or color, as required by the provisions of Sections 51-181, 51- 182, 51-183, and 51-184 of the Code of Laws of South Carolina for 1952. The Charleston Municipal Golf Course is operated by the defendants solely for the use of white persons. The named plaintiffs and the class of persons they represent in this action, have been and will continue to be excluded by the defendants from the use of these facilities because they are Negroes, in accordance with the provisions of the statutes mentioned above, unless the relief prayed in this complaint is granted. 10. The policy, custom and usage of the defendants of providing, maintaining and operating golfing facilities for the white citizens and residents of the City and County of Charleston out of the public funds while failing and refusing to admit Negroes to these facilities on account of their race and color is unlawful and constitutes denial of their rights under the equal protection and due process clause of the Fourteenth Amendment to the Constitution of the Complaint 6a United States. Sections 51-181, 51-182, 51-183 and 51-184 of the Code of Laws of South Carolina for 1952 are un constitutional and are therefore null and void under the equal protection and due process clauses of the Fourteenth Amendment. 11. The plaintiffs and those similarly situated and affected and on whose behalf this suit is brought, will suffer irreparable injury and are threatened with irreparable injury in the future by reason of the acts herein complained of. They have no plain adequate . or complete remedy to redress the wrongs and illegal acts herein complained of other than by this suit for declaration of rights and injunc tion. Any other remedy which plaintiffs might seek to use would be attended by such uncertainties as to deny sub stantial relief, would involve a multiplicity of suits, would cause further irreparable injury and would occasion damage and inconvenience to the plaintiffs and those similarly situated. W herefore, plaintiffs respectfully pray that, upon filing of this Complaint, as may appear proper and convenient to the Court: 1. The Court convene a three-judge District Court, as required by Title 28, United States Code, Sections 2281 and 2284. 2. The Court advance this action, on the docket and order a speedy hearing of this action according to law, and upon such hearing, (a) This Court enter a judgment or decree declaring Sections 51-181, 51-182, 51-183 and 51-184 of the Code of Laws of South Carolina for 1952 to be unconstitutional and Complaint 7a void in that they require separation of the races in public parks and recreational facilities, thus denying plaintiffs and other Negroes similarly situated the equal protection and due process guaranteed by the Fourteenth Amendment of the Constitution of the United States. (b) That the Court enter a judgment or decree declaring that the policy, custom, usage and practice of the defendants in denying to plaintiffs and other Negroes similarly situated the use of the Charleston Municipal Golf Course, while permitting white persons to use said facilities, solely on account of race and color, is in violation of the equal protection clauses of the Fourteenth Amendment to the Constitution of the United States. (c) That the Court issue a temporary injunction, re straining and enjoining defendants, their agents and servants from enforcing or executing the aforesaid statutes, or by custom, usage or practice, from prohibiting plaintiffs and other Negroes similarly situated from making use of the facilities of the Charleston Municipal Golf Course. (d) That the Court issue a permanent injunction, re straining and enjoining defendants, their agents and servants from enforcing or executing said statutes, or by custom, usage or practice, from prohibiting plaintiffs and other Negroes similarly situated from making use of the facilities of the Charleston Municipal Golf Course. (e) That the Court allow plaintiffs their costs herein, and grant such further, other, additional or alternative relief as may appear to the Court to be equitable and just in the premises. Complaint 8a Civil Action 7048 The above named Defendants, answering the complaint herein, say: 1. They deny each and every allegation in said Com plaint not hereinafter specifically admitted. 2. They admit, upon information and belief, that Plain tiffs invoke the jurisdiction of this Court and seek de claratory judgment under the provisions referred to in paragraphs 1 and 3 of the Complaint, but deny that the Court has or should assume jurisdiction of this action, for the following reasons: (a) That the defendants deny that the matter in con troversy, exclusive of interest and costs, exceeds the sum of Ten Thousand ($10,000.00) Dollars, and this Honorable Court should not take jurisdiction. (b) That it appears affirmatively from the allegations of the Complaint that the requisite jurisdictional amount of the sum of Ten Thousand ($10,000.00) Dollars, exclusive of interest and costs, is not in volved, and said Complaint should be dismissed. (c) That the Plaintiffs have not exhausted their remedies in the Courts of South Carolina, nor have the said Courts had before them, nor have they passed upon, the constitutionality of Sections 51-181, 51-182, 51- 183, and 51-184, Code of Laws of South Carolina, 1952, and that, therefore, this Honorable Court should not assume jurisdiction of the matter until the question has been decided by the Courts of this State. Answer 9a (d) That the Sections of the Law of the State of South Carolina referred to in paragraphs 1 and 3 of the Complaint are limited in their application to counties of the State of South Carolina containing cities of a population of 60,000 according to the United States census of 1930, which confines the application of said Sections to Charleston County only, in which County the City of Charleston is situate, presenting a purely local question not within the jurisdiction of any three-judge Federal Court. 3. They admit that the averments of paragraph 2 of the Complaint allege that the action is a class action, but, on information and belief, deny that the Plaintiffs represent any large number or majority of the class which they claim to represent, these defendants specifically alleging that very few Negro citizens and residents of the City of Charleston, South Carolina and of the United States, are interested in the existence or non-existence of the Charles ton Municipal Golf Course or have any interest in the sub ject matter of the action. 4. They have no knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 4 of the Complaint. 5. They admit the allegations of paragraph 5 of the Complaint. 6. Answering the allegations of paragraph 6 of the Com plaint, defendants say that the Charleston Municipal Golf Course Commission is a board created and established by Section 26-1 of the 1952 Code of City of Charleston, charged with the duty of maintaining, managing and operating a Answer 10a municipal golf course under authority accorded by the laws of the State of South Carolina and ordinances of the City Council of Charleston, requiring proper rules and police regulations for the protection of property and preserva tion of peace; that Gerald M. Carter, Alfred 0. Halsey, Cornelious 0. Thompson, T. Moultrie McKevlin, William A. Dotterer, Leroy Nelson and C. Bissell Jenkins are hold over members of the Charleston Municipal Golf Course Commission in that, their term of office having expired, no successor to any of them has been appointed and no appropriation of any kind has been made to or in behalf of the Charleston Municipal Golf Course Commission for the calendar year of 1959; that Gerald M. Carter is Chairman and John E. Adams is manager of the said Charleston Municipal Golf Course; and said defendants deny any and all allegations of paragraph 6 inconsistent therewith, and have no knowledge or information to form a belief that the defendants are sued in their official and individual capacity. 7. Answering paragraph 7 of the Complaint, they admit that the defendants have established and are maintaining and operating a golf course known as the Charleston Municipal Golf Course, and that the defendants are charged with the duty of maintaining, operating and supervising same. That, as a part of their supervisory control and authority with respect to the said golf course, the defen dants are vested with the power to promulgate and en force rules and regulations concerning the use, availability and admission to said Charleston Municipal Golf Course to the person who desires to use same, as are not in conflict with the 1952 Code of City of Charleston, the ordinances of the City of Charleston, the Constitution and Laws of the State of South Carolina and of the United States; and the Answer 11a defendants deny any and all allegations of paragraph 7 inconsistent therewith. 8. Answering the allegations of paragraph 8 of the Complaint, they admit that, on or about November 23, 1958, on information and belief, plaintiffs presented themselves at the Charleston Municipal Golf Course and sought per mission to play golf, directing their request to the defen dant, John E. Adams, Manager of the said Golf Course, and said defendant refused to grant permission, on infor mation and belief, to plaintiffs. They also admit that signs reading “W HITE ONLY” were posted at the entrance of the Charleston Municipal Golf Course; and said defendants deny any and all allegations of paragraph 8 inconsistent therewith. 9. Answering the allegations contained in paragraph 9 of the Complaint, they admit, upon information and belief, that plaintiffs presented themselves and requested to use the facilities of the Charleston Municipal Golf Course, and were denied the use of the facilities by the defendant, John E. Adams, who, as Manager of the Golf Course and an employee, is responsible to the Charleston Municipal Golf Course Commission for maintaining, managing and operat ing such Golf Course, and that the said Golf Course is operated by the defendants for such golfers who, in the judgment of the defendants, will use said course without creating a threat to peace and good order; and the defen dants deny any and all other allegations contained in para graph 9 inconsistent therewith. 10. They deny the allegations contained in paragraphs 10 and 11 of the Complaint. Answer 12a Further Answering Said Complaint and as a Further Defense Thereto, Defendants Allege: 11. That this action involves questions of purely political or governmental nature, confined to the legislative and executive branches of the government, which have acted within their constitutional powers, and that any interference therewith is beyond the jurisdiction of this Honorable Court in the exercise of its equity powers, the questions raised touching a sensitive area of social policy of the City of Charleston and of the State of South Carolina and its political subdivisions, properly exercised under the powers reserved to them in the use of their police powers. Further Answering Said Complaint and as a Further Defense Thereto, Defendants Allege: 12. That they are informed and believe that plaintiffs did not seek the use of the facilities of the Charleston Municipal G-olf Course in good faith but only in a concerted effort and as part of a plan to harass and embarrass the defendants in the performance of their duties and to en force their wills upon the majority of the people of the City of Charleston; that plaintiffs are careless of the public welfare and know full well that the integration of the races at the public golf course of the City of Charleston will wreck the Charleston Municipal Golf Course to the detri ment of both races; that the plaintiffs do not come into Court with clean hands and have no equities with them. Further Answering Said Complaint and as a Further Defense Thereto, Defendants Allege: 13. That the granting of the relief sought by the plain tiffs would require the closing of the Charleston Municipal Answer 13a Golf Course for the reason that the defendants verily believe that the said facilities would not be utilized on an integrated basis, and would no longer be self-supporting, and, as an economical necessity, would be compelled to be closed; and that such would result in the denial of the benefits to either race derived from the Golf Course as now operated, to the detriment of public interest and convenience, and against any possible balance of the equities of the situation. Further Answering Said Complaint and as a Further Defense Thereto, Defendants Allege: 14. That they deny that any irreparable injury is being, or will be, suffered by the plaintiffs because of the acts complained of, said defendants specifically alleging that if plaintiffs prevail, it will then be impracticable and im possible to operate the Golf Course and the same will have to be closed to all, upon which event a substantial portion of the Course will revert to the grantor, its successors or assigns, which conveyed the property to the City Council of Charleston on or about the 11th day of June, 1929, as pro vided in the deed making such conveyance only for the use as a municipal golf course, causing the loss of much costly improvements made by the City of Charleston. W herefore, having answered, defendants pray that this action be dismissed. Answer 14a Motion for Preliminary Injunction Plaintiffs move the court to grant a preliminary injunc tion against defendants and each of them and their agents, servants and attorneys and all persons in active concert and participation with them pending the final determination of this action and until the further order of this court re straining them from making any distinctions based upon color in regard to the use of the Charleston Municipal Golf Course on the ground that unless restrained by this court defendants will commit the acts referred to which will result in irreparable injury, loss and damage to plaintiffs during the pendency of this action, as more fully appears from the affidavits of plaintiffs attached hereto and made a part hereof. Matthew J. Perry 371% S. Liberty Street Spartanburg, South Carolina L incoln C. Jenkins, J r . 1107% Washington Street Columbia, South Carolina J ack Greenberg 10 Columbus Circle New York, New York Thurgood Marshall 10 Columbus Circle New York, New York Attorneys for Plaintiffs 15a J ohn H. Cummings being duly sworn hereby disposes and says: 1. He is one of the plaintiffs in the above-entitled case. 2. This is an action for interlocutory and permanent in junction to restrain defendants from making any distinc tions based upon color at the Charleston Municipal Golf Course. 3. Plaintiff is a resident of the City of Charleston, South Carolina and a citizen of the United States. 4. Plaintiff is informed that the defendant Charleston Municipal Golf Course Commission is a board created and established by Section 26-1 of the 1952 Code of the City of Charleston, and that it operates the Charleston Municipal Golf Course and that the chairman of said board is Gerald M. Carter; and that Alfred 0. Halsey, Cornelious 0. Thompson, T. Moultrie McKevlin, William A. Dotterer, Leroy Nelson and C. Bissell Jenkins are members of the Charleston Municipal Golf Course Commission. Plaintiff is further informed that John E. Adams is manager of said Charleston Municipal Golf Course. 5. On or about November 23, 1958, plaintiff sought per mission to play golf at the Charleston Municipal Golf Course and was denied permission by John E. Adams, Manager of said Golf Course. 6. At the time plaintiff sought permission to play golf as aforesaid, signs which read “ white only” were posted at the entrance to the Charleston Municipal Golf Course. The said signs are still posted at the entrance thereof, and plaintiff is informed that the policy of excluding Negroes Affidavit o f John H. Cummings 16a from the golf course while at the same time permitting white persons to enter and use the facilities of said golf course is still being pursued by the Charleston Municipal Golf Course Commission and the Manager thereof. 7. Plaintiff is informed that the said John E. Adams and the Charleston Municipal Golf Course Commission are acting pursuant to certain statutes of the State of South Carolina and certain customs which prevail in excluding plaintiff and other Negroes from the Charleston Municipal Golf Course, which statutes and customs are unconstitu tional and cause plaintiff and other persons similarly situated to suffer irreparable injury and harm on account of the enforcement thereof. 8. Plaintiff and other persons similary situated will continue to suffer irreparable injury and harm each day the above statutes and customs are enforced unless enjoined from so doing. Affidavit of John II. Cummings 17a J ohn L. Chisolm, being duly sworn hereby deposes and says: 1. He is one of the plaintiffs in the above-entitled ease. 2. This is an action for interlocutory and permanent in junction to restrain defendants from making any distinc tions based upon color at the Charleston Municipal Golf Course. 3. Plaintiff is a resident of the City of Charleston, South Carolina and a citizen of the United States. 4. Plaintiff is informed that the defendant Charleston Municipal Golf Course Commission is a board created and established by Section 26-1 of the 1952 Code of the City of Charleston, and that it operates the Charleston Municipal Golf Course and that the chairman of said board is Gerald M. Carter; and that Alfred 0. Halsey, Cornelious 0. Thompson, T. Moultrie McKevlin, William A. Dotterer, Leroy Nelson and C. Bissell Jenkins are members of the Charleston Municipal Golf Course Commission. Plaintiff is further informed that John E. Adams is manager of said Charleston Municipal Golf Course. 5. On or about November 23, 1958, plaintiff sought per mission to play golf at the Charleston Municipal Golf Course and was denied permission by John E. Adams, Manager of said Golf Course. 6. At the time plaintiff sought permission to play golf as aforesaid, signs which read “ white only” were posted at the entrance to the Charleston Municipal Golf Course. The said signs are still posted at the entrance thereof, and plaintiff is informed that the policy of excluding Negroes Affidavit o f John L. Chisolm 18a from the golf course while at the same time permitting white persons to enter and use the facilities of said golf course is still being pursued by the Charleston Municipal Golf Course Commission and the Manager thereof. 7. Plaintiff is informed that the said John E. Adams and the Charleston Municipal Golf Course Commission are acting pursuant to certain statutes of the State of South Carolina and certain customs which prevail in excluding plaintiff and other Negroes from the Charleston Municipal Golf Course, which statutes and customs are unconstitu tional and cause plaintiff and other persons similarly situated to suffer irreparable injury and harm on account of the enforcement thereof. 8. Plaintiff and other persons similary situated will continue to suffer irreparable injury and harm eac-h day the above statutes and customs are enforced unless enjoined from so doing. Affidavit of John L. Chisolm 19a B enjamin W eight being duly sworn hereby deposes and says: 1. He is one of the plaintiffs in the above-entitled ease. 2. This is an action for interlocutory and permanent in junction to restrain defendants from making any distinc tions based upon color at the Charleston Municipal Golf Course. 3. Plaintiff is a resident of the City of Charleston, South Carolina and a citizen of the United States. 4. Plaintiff is informed that the defendant Charleston Municipal Golf Course Commission is a board created and established by Section 26-1 of the 1952 Code of the City of Charleston, and that it operates the Charleston Municipal Golf Course and that the chairman of said board is Gerald M. Carter; and that Alfred 0. Halsey, Cornelious 0. Thompson, T. Moultrie McKevlin, William A. Dotterer, Leroy Nelson and C. Bissell Jenkins are members of the Charleston Municipal Golf Course Commission. Plaintiff is further informed that John E. Adams is manager of said Charleston Municipal Golf Course. 5. On or about November 23, 1958, plaintiff sought per mission to play golf at the Charleston Municipal Golf Course and was denied permission by John E. Adams, Manager of said Golf Course. 6. At the time plaintiff sought permission to play golf as aforesaid, signs which read “ white only” were posted at the entrance to the Charleston Municipal Golf Course. The said signs are still posted at the entrance thereof, and plaintiff is informed that the policy of excluding Negroes Affidavit o f Benjamin Wright 20a from the golf course while at the same time permitting white persons to enter and use the facilities of said golf course is still being pursued by the Charleston Municipal Golf Course Commission and the Manager thereof. 7. Plaintiff is informed that the said John E. Adams and the Charleston Municipal Golf Course Commission are acting pursuant to certain statutes of the State of South Carolina and certain customs which prevail in excluding plaintiff and other Negroes from the Charleston Municipal Golf Course, which statutes and customs are unconstitu tional and cause plaintiff and other persons similarly situated to suffer irreparable injury and harm on account of the enforcement thereof. 8. Plaintiff and other persons similary situated will continue to suffer irreparable injury and harm each day the above statutes and customs are enforced unless enjoined from so doing. Affidavit of Benjamin Wright 21a Hearing on Motion for Preliminary Injunction The hearing in this matter was held in the Judge’s — [p. 1]— Chambers at the Temporary Headquarters of the United States District Court at No. 1 Broad Street, Charleston, South Carolina, on the 28th day of June, 1960, at 3:30 p. m. o ’clock, B e f o e e : H onorable A shton H. W illiams, United States District Judge. # # # # # Mr. Perry: May it please the Court, I am Matthew — [p. 2]— Perry of Spartanburg. Your Honor has before you, I believe, our Notice of Motion for a Preliminary Injunc tion which was issued and which originally set the date for a hearing in this cause for June 15, and pursuant to the requestion of counsel, the matter was continued until today. And we are now ready to proceed. Present from the plaintiffs are myself, Matthew Perry, and Lin coln C. Jenkins, Jr., of Columbia. # # # # # J ames L. W hite, sworn. — [p. 9]— Direct examination by Mr. Jenkens: Q. Mr. White, you are not one of the plaintiffs in this case, are you? A. No, sir. Q. Speak loudly enough so we may hear you. A. No, sir. Q. Tell us where you live? A. I live at No. 8 Leola Street in Charleston Heights. Q. Is that a part of the corporate limits of the City of Charleston? A. No, sir. 22a Q. So you live outside of Charleston? A. Yes, sir. Q. You are familiar with this suit, is that correct? A. I am. Q. Are you familiar with some of the circumstances leading up to the filing of this particular suit? A. Eight from the beginning, sir. Q. State whether or not you were a part of a group of other persons who made application on or about No vember 23, 1958, to use the facilities of the golf course, the Charleston Municipal Golf Course? A. Yes, sir. Before — [p. 10]— the whole thing started, I wrote a letter to the Chairman of the Golf Course Commission, requesting him permis sion for me, myself, and a group of other fellows to be able to play on the Municipal Golf Course. And he in turn did not answer the letter. And then I wrote him another letter and stating that he didn’t answer the first letter and I would like to have some answer on this second letter. In the second letter he stated that the Golf Course Commission meets—I think it is the second Tuesday in every month. I can’t remember correctly, but I think it was the second or third Tuesday in every month. Mr. Eosen: Your Honor, I think the letters would be the best evidence of their contents. Mr. Jenkins: Thank you. Q. Let me interrupt you a couple of minutes. Let us change the line of testimony just a minute. You now do not live within the City Limits of Charleston, is that correct? A. Correct. Q. On November 23, 1958, where did you live? A. In the City. Q. You lived within the City of Charleston? A. Yes, sir. James L. White—for Plaintiffs—Direct 23a Q. Now, on November 23, 1958, did you go to the Charleston Municipal Golf Course at all? A. Yes, sir. — [p. 11]— Q. Now were you accompanied by any other persons? A. Yes, sir. Q. Do you know approximately the number of persons in that group? A. Between 18 and 20 of us. Q. Do you know the race of those persons? A. All Negroes. Q. All Negroes? A. Yes, sir. Q. Now, do you know the plaintiffs in this case? A. Yes, sir. Q. Are these plaintiffs Negroes? A. All Negroes. Q. Were these plaintiffs or any of them among the group which went with you on November 23, 1958 to the Charleston Municipal Golf Course? A. Yes, sir. Q. They were? A. That’s right, sir. Q. Now, on that date was any request made to use the facilities of the Charleston Municipal Golf Course? A. Yes, sir. Q. Did you make such a request? A. Yes, sir. — [p. 12]— The Court: That was 1958? Mr. Jenkins: 1958, if your Honor please. Q. Of whom did you make such a request? A. Mr. Johnny Adams, the Professional at the Golf Course. Q. Mr. Adams at that time was in what capacity? A. The Professional at the Golf Course and also Manager. Q. He was also Manager of the Golf Course? A. Yes, sir. Q. He was the person in charge of the greens of the Golf Course,—the use of the Golf Course, is that correct? A. Yes, sir. Q. Now, prior to November 23, 1958, had you made any James L. White—for Plaintiffs—Direct 24a effort to use the facilities of the Charleston Municipal Golf Course? A. Only through correspondence. Q. Through correspondence? A. Yes, sir. Q. Now, as a result of that correspondence, have you been allowed the use of the Municipal Golf Course? A. No, sir, I never have. Q. On November 23, 1958, when you made this request of Mr. Adams to use the Golf Course, were you allowed to use such facilities ? A. No, sir. — [p. 13]— Q. You were not. A. No, sir. Q. At the time you made your request, were the other persons who accompanied you in the immediate vicinity of you? A. Yes, sir. Q. Did you hear any of them make a similar request as yours? A. Yes, sir. Q. Do you know whether or not they were refused such permission? A. Yes, sir, they were refused. Q. They were refused that permission by Mr. Adams? A. Yes, sir. Q. Did Mr. Adams state to you any reason why you were refused permission to use the Golf Course? A. Yes, sir. — [p. 14]— Q. Mill you state to the Court what that refusal was based upon? A. Mr. Adams quoted from a law, a state ment from the law, in effect that the State of South Carolina refused the Negroes and whites to play together on the Golf Course at the same time. Q. Did Mr. Adams state that he was following this statute in refusing you permission to play on the Golf Course? A. Well he quoted it from this State law, so evidently he was going by the State law that he was reading to me. Q. Did he state that he was refusing you permission because of your race? A. Yes, sir. James L. White—for Plaintiffs—Direct 25a Q. Now at the time that you sought permission to use the Golf Course, did you seek permission for yourself and on behalf of the other persons with you! A, I seek it for myself and also for whoever wanted to play that was with me in the group. Q. At the time you sought permission to use the Golf Course, did you know of any other Negroes who had ex pressed any desire to use the Golf Course? A. Would you rephrase that question once more. Q. On November 23, 1958—that is the day I believe you testified that you sought permission to use the Golf Course? A. Yes, sir. Q. Now, as of that date, had you heard of any other Negroes who had expressed a desire to use the facilities of the Charleston Municipal Golf Course? A. Yes, sir. Q. You had? A. Yes, sir. — [p. 15]— Q. Do you recall any of them giving any reason why they had not used the Golf Course? Mr. Rosen: Your Honor, I don’t want to inter rupt counsel, but of course this is hearsay here. The Court: You object, but I am going to let the testimony in, subject to your objection, and I will rule on it at a subsquent time. Q. Do you remember the question? A. No, I don’t. Q. The question was: Those persons that you had heard express a desire to use the Charleston Municipal Golf Course, and who were Negroes, and who were not allowed to use the Golf Course, had you heard them ex press any reason as to why they had not been able to use the Golf Course? A. No, sir. We just talked around. We always wanted to have a place to play, and, well, no one ever attempted to play over there and no one over there James L. White—for Plaintiffs—Direct 26a ever answered us in the affirmative that we would be able to play, nor did they deny that we would be able to play. So we had to go out and try to find out if they would let us play over there. Q. Now, do you recall seeing any signs posted anywhere near the Gulf Course on November 23 with reference to race at all? A. Yes, sir. That was the first time I ever seen it there, but I used to go through there very often — [p. 16]— and I never saw it there before. Q. Do you recall what the sign perhaps said? A. Golf Course for white only. Q. Or words to that effect? A. To that effect. Q. Even though you saw that sign which says in effect “ The use of this Golf Course restricted to whites only,” you nonetheless attempted to use the Golf Course? A. I did. Q. Under what right did you attempt to use the Golf Course facilities? A. At that time I was a taxpaying citizen of the City of Charleston and I felt that I was entitled to some of the privileges, and that was one of them. Q. Do you play golf? A. Yes, sir. Q. Do you play regularly? A. As often as I can. Q. Do you play golf now? A. Yes, sir. Q. Prior to November 23, 1958, did you play golf? A. Yes, sir. Q. What was your purpose on November 23, 1958, in going to the Charleston Municipal Golf Course and request- — [p. 17] — ing to use that course? A. I felt that had I went over there and asked them could I be able to play, they might have let me play. I really felt that they would let us play. I didn’t see at that time that there would be any integration. I didn’t felt that I was trying to close the James L. White—for Plaintiffs—Direct 27a place up. I was just trying to find out would they let us play. Q. Did you have a sincere desire to play golf on that course? A. Yes, sir, I really did. Q. Now, there was a group of about 18 or 19 other persons with you f A. Yes, sir. Q. Did you hear them express any feeling they may have had with reference to the use of the Golf Course? A. Well they would not have been there had they not feel that they would be able to gain admission themselves. They felt too that the Commission—since they didn’t answer in the affirmative to the letters—they just felt that if they come they would let them play, if they got nerve enough. And with the sign sticking out there, they figured—I felt that they felt they could just scare us off, and I thought I would just go in and try. I didn’t intend to get far down there below the driveway they had there, but I was amazed and very much surprised that when I walked down there nothing happened until I got to the — [p. 1 8 1 - club house and Mr. Adams told me—quoted this code of law to me. Q. Have you played golf with any of this group of persons that was there with you? A. Yes, sir. Q. Did you know all of them ? A. Yes, sir. Q. Had you played golf at some time or another with all of them? A. Yes, sir. Q. Since November 23, 1958, have you had occasion to play golf with any of those persons? A. Yes, sir. Q. Do you know the latest occasion on which you played golf? A. Yes, sir. Q. What was that date? A. On the 26th. That was Sunday past. Q. The 26th of June, 1960? A. Yes, sir. James L. White—for Plaintiffs—Direct 28a James L. White—for Plaintiffs—Direct The Court: Where did you play? A. Parris Island. Q. Did you play in a group last Sunday? A. Yes, sir, a group, just 4 of us. One of us wasn’t a plaintiff, but one were, and two military personnel went there. — [p. 19]— Q. Now, you are a civilian, I believe, is that correct? A. Yes, sir, but I am in the reserves, in a reserve status. Q. Did you use that facility as a civilian? A. With this reserve status I am privileged to go and play and be a guest of these other military personnel. Q. And you say you did play, accompanied by at least one person who is a plaintiff in this suit? A. Yes, sir. Q. Have you had occasion to use that golf facility on previous occasions? A. Yes, sir, on the Sunday before then. Q. On the Sunday before then? A. Yes, sir. Q. Did you play with Negroes at that time? A. Yes, sir. Q. I assume that the other military personnel on last Sunday were Negroes as well, is that true? A. White and Negro. Q. White and Negro. Now, have you seen other Negroes using that facility on Parris Island? A. Yes, sir. Q. Have you seen any persons that you know to be — [p. 2 0 1 - citizens and residents of the City of Charleston using that facility? Negroes, I mean. A. Not outside of our group. Q. Just your particular group? A. Yes, sir. Q. Do you know whether or not there are other Negroes in Charleston, other than this group of 19, who play golf? A. Yes, sir, there were many of us, many golfers that I didn’t even know until the incident about the golf course in November, sir, that mentioned golf. I didn’t even know 29a they played golf until they came out and said “We cer tainly hope you get the Golf Course.” Mr. Eosen: Your Honor, may I renew my ob jection at this time? I don’t want to waive it. The Court: Yes. Go ahead. Q. Have you played on golf courses any place other that the golf course on Parris Island? A. Yes, sir. Q. Can you state where you may have played golf on some other course? A. Yes, sir. I played golf at Wilming ton, North Carolina, the Municipal Golf Course there. Q. At Wilmington, North Carolina. The Municipal Golf Course? A. Yes, sir. — [p. 21]— Q. Do you recall when you played there? A. Approx imately five weeks ago, sir. Q. Approximately five weeks ago ? A. Yes, sir. Q. Now do golfers use that facility on an integrated basis, on a racially integrated basis? A. On a racially integrated basis. Q. And on the Sunday that you used this facility, were Negroes and whites using it at the same time? A. Yes, sir. Q. Did it cause any undue occurrence or incidents as far as you were concerned? A. As far as I was concerned, I didn’t see any. Q. Were there any other Negroes with you who played at that facility at that time at Wilmington, North Carolina? A. I beg your pardon? Q. On the Sunday that you played on the golf course at Wilmington, North Carolina, were there other Negroes that you saw using that golf facility? A. Yes, sir. Q. Were some of them in your company? A. Yes, sir. Q. I have no further questions at present. If you will James L. White—for Plaintiffs—Direct 30a James L. White—for Plaintiffs—Cross answer any questions that Mr. Rosen may ask you. He is - [ p . 22]— counsel for the other side. Cross examination by Mr. Rosen: Q. Mr. White, you are not a citizen and resident of the City of Charleston, is that correct? A. That is correct. Q. And when did you leave the City of Charleston? A. In April 1959. Q. And you don’t contend that the City ovTes you any right to let you as a non-resident play on the Coif Course, do you? A. Mr. Rosen, I would like to answer that just like this: They let other residents in the county play. Q. Mr. White, do you understand that the motion before this Court, upon which you are testifying, is for a tem porary type of order? A. Yes, sir. Q. And not for a main order in the litigation? A. Yes, sir. Q. You understand that? A. Yes, sir. Q. How many times have you played golf in the last 30 days? A. I play golf every Sunday, to begin with, and as often through the week as I can. — [p. 23] — Q. Would you say you have been averaging twice a week for the last several weeks? A. (nods yes). And a little more, sometimes, I imagine. Q. And has that been a hardship on you? A. No, sir. Q. So you personally have been suffering no harm that an order which was delayed would affect you in any way? You have not been suffering any harm now, any damage? A. Yes, sir. Q. You have been playing your golf regularly? A. But I had to go far away. Q. Where have you had to go ? A. I had to go to Wilm ington and I had to go to Parris Island. 31a Q. And how far is Parris Island! A. 71 miles from the Guard Gate to Charleston. Q. I see. But you are playing in the meantime! A. I am playing golf in the meantime. Q. Now do you think it would be any terrible incon venience to you if the temporary restraining order were not granted,—to you personally! A. I think it would be something wrong to me if I would have to go there and not play here, at the Municipal Golf Course here. — [p. 24]— Q. But you wouldn’t feel any particular harm that you would not recover from, would you? A. Well it depends on the type of harm you are insisting on. Q. Do you feel any physical harm? A. Well I would be tired from the trips. Q. I see. But that would be the extent of your harm? A. Yes, sir, and hurt from paying this—not that I am paying this City tax now, but the taxes that I have paid and wasn’t able to pay. Q. Would you say that whatever irreparable harm you personally would claim would be more of a psychological nature than of a physical nature? A. Would you just ask that once more, sir? Q. You say you will be harmed if this order is not granted? A. Yes, sir. Q. You will be harmed? A. Yes, sir. Q. And you say physically it won’t hurt you but you would just be a little tired once or twice a week? A. Well that physical will hurt me. Q. Physically it will hurt you? A. Yes, sir. Q. Is that the only harm that you foresee if an order — [p. 25]— is not granted? A. Well that is one of the reasons. Q. What are the others? A. I feel the City has been unfair to me because I started this thing. I wrote the James L. White—for Plaintiffs—Cross 32a letter to the Commission, and since then I have moved out of the City, it is true, but I still play golf, you see. Q. So your irreparable harm is that the City has not been fair to you? That is the extent of the harm to you personally? A. To me personally, yes. Q. In addition to this tiredness? A. In addition to be ing physically tired in making these trips. Q. Now this temporary situation that you say you have at Parris Island, do a lot of people use that course? A. Well at times. Q. Is it as crowded as the metropolitan golf course would be? A. Yes, sir, I think it would be, with the area around Beaufort and Savannah also. I remember seeing one person from Savannah there,—two to be correct. Q. And you have to wait in line to play at Parris Island? A. Yes, sir. — [p. 26]— Q. We have no further questions. The Court: You don’t claim that you would have any right to play on this golf course if this tem porary injunction were granted, do you? A. I beg your pardon, sir? The Court: I say, you don’t claim that you would have any right to play on this golf course if this temporary injunction were granted? A. Sir, let me try to get this “ temporary injunction” cor rectly. James L. White—for Plaintiffs—Cross The Court: You live outside the City? A. Yes, sir. 33a The Court: The City could pass a resolution limiting the use of the golf course to City residents of Charleston and excluding anybody that lives out side the City? A. Well if they should do that then I— The Court: Then you would have no right ? A. I would have no right. The Court: All right, that is all. Mr. Jenkins: At this time, I would like to call Mr. John Chisolm. The Court: Is he one of the plaintiffs? Mr. Jenkins: Yes, sir. James L. White—for Plaintiffs—Cross J ohn Chisolm, sworn. [p. 27]— The Court: I think you can curtail the witnesses’ testimony. There has been some effort to do that. There isn’t any use to bring out all of the details, because most of the things are in the pleadings here, and I will take judicial notice of those. Mr. Jenkins: Yes, sir. Mr. Smythe: I think, your Honor, that the in cident of November 23 is admitted in the answer. The Court: You mean, November 23,1958? Mr. Smythe: Yes, sir. The Court: That is my impression, that they were admitted. If they are admitted, there isn’t any use to bring them out in the testimony on that point. 34a Mr. Jenkins: If your Honor please, frankly, what we are going to do is to ask this witness whether or not he heard the previous testimony and whether he agrees that that would be his testimony if he testified. The Court: That will be fine. Mr. Jenkins: I think, however, that there are just a couple of other questions that should be asked of this witness. — [p. 28]— The Court: That will be all right. Direct examination by Mr. Jenkins: Q. Mr. Chisolm, you have heard the previous testimony, is that correct? A. I have. Q. Speak louder, please. A. I have. Q. Now, if you were to testify, would you testify sub stantially along the same lines ? A. I will. Q. Now, just a couple of other questions. You are one of the plaintiffs in this case, is that correct? A. Iam. Q. You presently live within the City of Charleston, is that correct? A. Yes, 255 St. Phillips Street, Charleston. Q. Now, do you presently have a desire to use the Charleston Municipal Golf Course? A. Yes. Q. Do you have a desire to use it on the basis of—a similar basis with all other citizens of the City of Charles ton? A. I do. Q. State whether or not you believe that in being denied — [p. 29] — the use of this golf facility presently, you are suffering an irreparable injury? A. I am, because I have got to go to Wilmington. I cannot go on the Parris Island or Navy Yard Golf Courses, because I am not a service man in or out of the reserves. I mean, I have never been in the service and I have got to go to Wilmington, which is John Chisolm—for Plaintiffs—Direct 35a 181 miles from Charleston, to play on the regulated golf course. Q. You do play golf, is that correct? A. Ido. Q. I have no further questions. Cross examination by Mr. Rosen: Q. Mr. Chisolm, how long have you been a resident of the City of Charleston! A. About 42 years. Q. And do you realize that until two weeks ago no motion had been made to relieve you from this irreparable injury that you just testified to? A. I realize that, but it is no fault of mine. Q. Aren’t you a plaintiff in the case? A. I am a plain tiff. Q. Well a motion was made in the plaintiff’s name, Mr. Chisolm, so from the time of the commencement of this suit until now, you didn’t feel that you were being harmed — [p. 30]— to such an extent that you had to apply to this Court for temporary relief, did you? A. Oh, yes. Q. You did feel that way? A. Yes, sir. Q. But in spite of that feeling, you delayed l ly 2 months to bring it to a motion? A. Well we thought that we would get an answer that we could play on the golf course. We were living in hopes to play on the golf course without bringing a restraining order. Q. Mr. Chisolm, your position hasn’t deteriorated in any way since the commencement of this suit, has it? A. Oh, yes. Q. It hasn’t changed? A. Ask that question again, Mr. Rosen. Q. Your position hasn’t changed since July of 1959, has it? A. Yes, it has changed somewhat. Q. Now what is the nature of that change? A. Because I can’t get to Wilmington as often as I used to. John Chisolm—for Plaintiffs—Cross 36a Q. I see. Is that the only change? A. That is the only change, and I am a great lover of golf, and I can’t golf as often as I used to. — [p. 31]— Q. So your condition today is, for all practical purposes, the same as it was a year ago, isn’t that correct? A. Yes. Q. And there is no great urgency that is going to cause you any great harm, is there? A. Could I answer that the way I want to answer you ? Q. Yes. A. I like golf. I have got a lot of money in vested in a golf outfit, I want to play golf near to home. So it will hurt me if I have still got to go to Wilmington, North Carolina, to play golf. Q. But you understand that your testimony is pursuant and in furtherance of a motion for a temporary restrain ing order? It has nothing to do with the merits of the litigation. You do understand that, don’t you, Mr. Chisolm? A. Yes. John Chisolm—for Plaintiffs—Cross The Court: Is there anything further. Mr. Jenkins: There are no further questions for this witness. The Court: All right. Do you have any further witnesses? Mr. Perry: One further, sir. Mr. John Adams. John E. A dams, sworn. Mr. Perry: May it please the Court, before I — [p. 32]— proceed with the examination of this witness, may I make a statement to the Court, and ask the Court’s position with reference to it. We have subpoenaed Mr. Adams. He is one of the defendants in this case. And, of course, your 37a Colloquy Honor has read the pleadings. As I understand the position of the City, the events of November 23 essentially are agreed by the City in the City’s answer. I don’t know whether in every particular of the testimony which has come out here, but es sentially the events of November 23 seem to be ad mitted. Mr. Rosen: Insofar as the answer admits them, Mr. Perry. I couldn’t go beyond the answer. Mr. Perry: Yes, sir. I see. Actually, it is our purpose to further strengthen our case to show that there is no dispute as to the events of November 23, by propounding certain questions to Mr. Adams. If, however, it appears that there is no dispute whatsoever concerning* the events of November 23, then of course we might very well forego the examination. The Court: I don’t know of any dispute as to that. Mr. Rosen: Your Honor, I know of no essential — [p. 3 3 3 - dispute. You mean, to vary from your witnesses today? Mr. Perry: Yes, sir, that is right. Mr. Rosen: Insofar as the pleadings are con cerned, that answer was filed about a year ago, your Honor. The Court: It was filed in July. Mr. Rosen: Yes, sir, in 1959, and I think it admits the incident. The Court: And I think that all of the other events that this other witness was talking about are admitted. Mr. Rosen: I think they are. Mr. Smythe: Paragraph 8 of the answer admits Paragraph 8 of the complaint. 38a Mr. Rosen: Your Honor, we would agree— The Court: Paragraph 8? Mr. Smythe: Yes, sir. The Court: What is that Paragraph 8? Yes, that is right. In other words, you admit that they sought permission to play golf, directing their request to the defendant John E. Adams, Manager of the said Golf Course, and the said defendant refused to grant permission on information and belief to plaintiffs. — [p. 34]— They also admit that there was a sign posted For White Only at the entrance of the Charleston Mu nicipal Golf Course. The said defendants deny any and all other allegations inconsistent therewith. But you do admit that Mr. Adams refused to per mit them to play golf ? Mr. Rosen: We do, your Honor, and I believe that is before you, and we might save the time of this witness. Mr. Perry: I think so. And of course I apologize to the witness for having inconvenienced him. We, of course, in an effort to be thorough and to present the case thoroughly, thought perhaps we had better protect ourselves by placing Mr. Adams under sub poena. The Court: I don’t think there is any question about that particular fact. Mr. Perry: There is, perhaps, one question which I think Mr. Adams might clarify for the Court. Direct examination by Mr. P erry : Q. Mr. Adams, you are Mr. John Adams, the Manager of the Charleston Municipal Golf Course? A. Yes. — [p. 35]— Q. Back in July of 1959, the City admitted essentially John E. Adams—for Plaintiffs—Direct 39a that the plaintiffs in this action had presented themselves before yon to play golf on the Golf Course on the date alleged in their action. A. That is correct. Q. Do you subscribe to that answer as filed by the City? A. Ido. Q. Sir, does this situation substantially exist today? A. The conditions haven’t changed. Q. The conditions have not changed. Negroes still are not permitted to play golf on the Charleston Municipal Golf Course? A. That is correct. Q. Are there signs limiting admission to white persons only still posted at the entrance? A. There are, sir. Q. Sir, do you still invoke the same statute which you relied upon in November 1958? A. Yes. Mr. Perry: You may examine the witness. Cross examination by Mr. Rosen: Q. Mr. Adams, I have just one question. Has any Negro — [p. 36]— presented himself to play golf at your Golf Course since the incident in 1958 ? A. No, sir. The Court: Are there any further witnesses? Mr. Perry: There are no further witnesses for the plaintiffs. The Court: Do you have any? Mr. Rosen: Your Honor, we will reply upon our affidavits which we have filed with you, and pre sented Mr. Perry copies of. The Court: You gentlemen for the plaintiffs, about the only question I see for me to consider is whether you will suffer irreparable harm if the in junction isn’t granted right now7. I am willing to fix a date for the trial of the case on its merits in John E. Adams—for Plaintiffs—Cross 40a August or September, and try it and render a decision that will wind up the whole thing at that time. But I am a little doubtful whether you have made out a case for a preliminary injunction, because I don’t see, since the case will be tried within a month or two on the merits, where you can suffer any ir reparable harm by the refusal to grant this motion. If you have anything to say on that point, I will — [p. 37]— be glad to hear you. Mr. Perry: Very good, sir. May it please the Court, the evidence which has been adduced, the answer of the defendants, the status of all of the pleadings, seem to leave no doubt but what the plaintiffs are denied access to mu nicipally-owned facilities, to wit, the Charleston Mu nicipal Golf Course facilities. The plaintiffs— The Court: You are well aware of the hesitancy of federal courts particularly to grant injunctions. I think in my eight years I have never granted but one or two preliminary injunctions. Mr. Perry: Well, sir, there is hesitancy; however, under Rule 65 of the Federal Rules of Civil Pro cedure, the Court has the— The Court: Upon what grounds would I base the granting of an injunction? Wouldn’t I have to base it on irreparable harm? Mr. Perry: On the ground that these plaintiffs are being denied equal protection of the laws as protected to them by the 14th Amendment. These being personal rights, each day these rights are denied to them, they suffer irreparable harm. Each day the City of Charleston operates a golf course facility out of the public funds and does so and Motion for Preliminary Injunction 41a excludes these persons on the ground of race, we — [p. 38]— respectfully submit, they suffer irreparable injury and harm. It so happens that in a situation where the facts are clear and where there is no dispute concerning the facts, one way or the other, this Court has the authority under Rule 65 to grant the preliminary injunction. And while this authority is based upon sound judicial discretion, we respectfully submit that the discretion of the Court is not unfettered. It is to be reckoned, it is to be applied by the status of the law which has been adjudged by the Supreme Court of the United States, and we respectfully sub mit that the Court has decided in a long list of cases after Brown v. Board of Education; Dawson v. Mayor was the first pronouncement on this point. Holmes v. City of Atlanta decided pretty much along the same— at the same time established once and for all that the plaintiffs in these cases are entitled to an injunction when they present themselves and show facts which are undisputed. Here we take the position that the City has erected and does maintain this facility at taxpayers’ expense. It is a governmentally-owned facility there fore. And the status of the law is such that the plaintiffs are entitled to the relief. We come to court asking for a preliminary injunction. The Court: If I grant a preliminary injunction, what more would you want? — [p. 39]— Mr. Perry: Well, sir, of course, I believe that your Honor— The Court: You wouldn’t care for anything in addition to that, would you? Motion for Preliminary Injunction 42a Mr. Perry: Well, of course, it would be, I believe, up to the City to make some effort in having your Honor— The Court: In other words, you would sit down then and wait for the City to move. Mr. Perry: Well, absolutely, sir. The plaintiffs, of course, each day they are denied access to these facilities, are denied access to tax-supported facil ities. The Court: The fact that this matter has been pending over a year,— I believe one witness said he went before the City officials two years ago. The fact that nothing has been done in the way of urging a decision on the case would indicate that nobody has suffered any irreparable harm. Mr. Perry: In that event, sir, perhaps we should put on additional evidence to show the efforts that have been made. I respectfully submit that we have made inquiries to the Clerk of Court, to your Honor. We received a reply from your Honor stating that the matter could be heard in April or possibly in June. Your Honor will recall these series of letters. — [p. 40]— The letter of your Honor is dated October 19, in response to an inquiry on my behalf. The Court: Well I am tied up in courts from October until February, and the only time I have open is in March, and at that time I was in the hospital. Mr. Perry: I realize that, sir, and of course I make no effort to criticize the Court. The Court: This is the earliest moment that I could hear it. When I got out of the hospital, we had three weeks of court in Florence, and three weeks of court in Charleston. Motion for Preliminary Injunction 43a Mr. Perry: Of course. The Court: And we just finished those courts just a few weeks ago, and this is the earliest moment that it could possibly be heard. Mr. Perry: While we recognize that, sir, may I interrupt the Court to say, of course, we simply take the position that we have not been sitting idly by. And I think that since Mr. Rosen inherited the file in this matter— Mr. Rosen: I did, and in all fairness to the Court, I want to say this, Mr. Perry: This motion was just made two weeks ago. And your Honor heard it very promptly, much more promptly than the City was prepared to actually handle it. The Court: There wasn’t any other motion for a — [p. 41]— preliminary injunction? Mr. Rosen: This is the first one that I find in the file, now. Mr. Perry: That is true, sir. The Court: When was the motion for a prelimi nary injunction made ? The Clerk: June 8th, 1960, your Honor. Mr. P erry: That is correct. Mr. Rosen: The suit was for a temporary and for a permanent injunction, 11 y2 months ago, and until June 8, there was no motion ever made to carry out that part of the original complaint. Mr. Perry: That is correct, sir, but we rather took the position that if we had been given a speedy heaxing in our case on the merits, that it would not have been necessary to present a motion for a preliminary injunction. The Court: Well the only way I could have given you a speedy hearing would have been to have Motion for Preliminary Injunction 44a refused to go to Greenville, where I go every year for several weeks, and to have refused to hold the courts in Florence, Orangeburg and Charleston, and just to give this precedence over all of the other courts. Mr. Perry: That certainly was not our intention, sir. The Court: I don’t judge, from what you say, that — [p. 42]— that was your intention or has been your intention. The point I am making is: What showing have you made that the parties have suffered and are now suffering irreparable harm, when your action was brought a year ag*o and nothing was done to wards getting a preliminary injunction until just a few weeks ago ? Mr. Perry: Your Honor, of course our only answer to that is that if we had been given the hearing, which we think perhaps—at least we had reason to believe should have been given during* the interim of one year, during the pendency of this action, then of course it would not have been necessary to present the motion for a preliminary injunction. The motion for a preliminary injunction was filed— The Court: As far as I am concerned, the hearing is just about as early as I could have given you. I was in the hospital from August until September, the latter part of September of last year, and I was holding court all during October and November, and then I commenced holding court again—a three or four weeks term of court in Charleston in January. Then I went back to Greenville in February. And March was the only time that I had any time off, and unfortunately I was in the hospital then for two weeks, in March. And after I came out, I had Motion for Preliminary Injunction 45a court in Orangeburg, three weeks of court in Florence and three weeks of court in Charleston. I just finished a few weeks ago. — [p. 4 3 ] - Mr. Perry: Nevertheless, sir, we respectfully sub mit that a case for a preliminary injunction has been made out, and we respectfully urge the is suance of a preliminary injunction, enjoining the discriminatory practices which are pursued by the Manager and the members of the Charleston Mu nicipal Golf Course Commission. The Court: Well I am going to deny your motion for a preliminary injunction, but I think under the circumstances that we should arrange to set some date when the matter can be heard on its merits. And from just reading the papers here, there ap pears to be some very serious questions that will come up on the hearing on the merits. And I can give you sometime in August or the first part of September. Mr. Perry: Of course we would want as speedy a hearing as possible, sir, under those circumstances. Mr. Rosen: Your Honor, we would prefer Sep tember, because Council meets only once a month in the summer, and that would give us the benefit of two meetings prior to the hearing. I don’t guess there is too much difference between the latter part of August and the first part of September to you. The Court: I couldn’t hold it until the latter part of August, because I have let some of my relatives have my house. What about the first two weeks in — [p. 44]— September ? I can give you the first Monday in Sep tember. Motion for Preliminary Injunction # * # * # 46a Order UNITED STATES DISTRICT COURT F oe the E astern D istrict of South Carolina Charleston D ivision Civil Action No. 7048 -----------------------------------------------— ------------ -------------------------------------- J ohn H. Cummings, J ohn L. Chisolm, R obert Johnson, B enjamin W right, for themselves and all other persons similarly situated, Plaintiffs, T he City of Charleston, a Municipal Corporation, T he Charleston Municipal Golf Course Commission, Gerald M. Carter, Chairman, A lfred 0 . H alsey, Cornelious 0. Thompson, T. Moultrie M cK evlin, W illiam A. D otteree, Leroy Nelson and C. B issell Jenkins, members of the Charleston Municipal Golf Course Commission; and J ohn E. A dams, Manager of the Charleston Municipal Golf Course, Defendants. The complaint in this ease was filed on July 6, 1959. No further action was taken until June 8, 1960 when the plain tiffs filed their motion for a preliminary injunction. At a hearing before me on June 28, 1960 it was clear that the pleadings and the evidence did not make out a case where a preliminary injunction should be granted. It is therefore 47a Order Ordered that the motion for a preliminary injunction is refused. So Ordered. Ashton H. Williams United States District Judge Signed at Charleston, S. C. on this 29th day of June, 1960 [S eal] A T rtje C opy. A ttest. / s / E rnest L. A llen Clerk of U. S. District Court East Dist. So. Carolina 48a — [p. 1]— C /A 7048 Transcript o f Hearing The above entitled case came on to be heard in the Court room of the Charleston County Court House, in the City of Charleston, South Carolina, on the 7th day of September, 1960, at 11 o’clock a. m., with H onorable A shton H. W illiams, Presiding United States District Judge. # * # # # - t p . 2 ] - Mr. Perry: The plaintiffs are ready, your Honor. The Court: All right, you may proceed. Mr. Perry: May it please the Court, we have taken up with the corporation counsel the proposition of using the testimony which comprises the record in the hearing which was held before your Honor on June 28 of 1960, which was the hearing on the motion for a preliminary injunction,—to be used in the pro ceedings of this morning. In other words, it is our desire to stipulate that the record of those proceed ings be made the record of this hearing on the merits this morning. The Court: I f there is no objection, that will be done. Mr. Rosen: We have no objection, your Honor. Mr. Perry: It was further agreed that possibly some additional testimony would be taken. The plaintiffs desire to place on the witness stand again Mr. John Adams, the Manager of the Golf Course. The Court: All right. Mr. Perry: Your Honor, I assume that your feel ing is still the same with regard to the reading of the pleadings ? The Court: That is all right. There is no use to read them. 49a Mr. Perry: Are the pleadings considered in evi dence, sir ? — [p. 3] — The Court: Yes. You have no objection to that, do you? Mr. Rosen: We have none, your Honor. I don’t think they would constitute evidence. That would be my only point of disagreement with counsel. The Court: Well of course they wouldn’t be evi dence, but they will be taken just as if you had read them. Mr. Perry: Merely as a part of the record, your Honor. The Court: A part of the record, yes. John E. Adams—for Plaintiffs'—Direct Testimony for Plaintiffs J ohn E. A dams, Sworn Direct Examination by Mr. Perry : Q. Your name is Mr. John Adams? A. Yes, sir. Q. Mr. Adams, I believe that you are the Manager of the Charleston Municipal Gulf Course? A. That’s correct, sir. Q. How long have you been in that employment, sir? A. 31 years, sir. Q. Mr. Adams, what is the policy of the Charleston Municipal Golf Course with reference to permitting persons - [ p . 4 ] - of different races to play on its premises? A. It is re stricted. Q. Restricted to what race? A. To white only. Q. To white only? A. (nods yes). Q. And I believe, Mr. Adams, that in so doing, the Charleston Municipal Golf Course Commission relies upon the statutes of the State of South Carolina, which are recorded at Title 51, Sections 181, 182, 183 and 184. Is that correct, sir? Mr. Rosen: Your Honor, we object to that question on the ground that the Commission does not consist of Mr. Adams as a member. He is not a member of the Commission, and I doubt that he could answer for the Commission. The Court: Objection sustained. Q. May I ask you, s ir : do you know whether the Commis sion feels that it is governed by any applicable law of the State of South Carolina? Mr. Rosen: Same objection, your Honor. He wouldn’t know how the Commission felt, I don’t be lieve. The Court: Objection sustained. Q. Mr. Adams, have your superiors stated to you the — [p. 5 1 - policy under which they are operating and have they quoted to you any regulations which they are following? A. Yes, sir. Q. And what is that information, sir? A. That I was to follow the State Code of Laws that you quoted, 51-181, 182 and 183, and to use that procedure. Q. And as of this time, Mr. Adams, is it not still the policy of the Charleston Municipal Golf Course Commis sion to refuse to perimt Negroes to use the facilities of the Golf Course? A. That is correct, sir. Q. Do you still have signs posted at the entrance of the John E. Adams—for Plaintiffs—Direct 51a Golf Course limiting admission to white persons only? A. Yes, sir. Q. Now, Mr. Adams, I believe you testified in the hear ing on the motion for a preliminary injunction in this matter. A. (nods yes). Q. You stated at that time that you recalled the incident during which these plaintiffs sought permission to play golf ? A. I did. Q. You do recall that incident? A. Yes, sir. Q. And these are the persons who sought permission to — [p. 6 1 - play golf on the date alleged in the complaint? A. Which ones? Q. The persons named as plaintiffs in this action, John H. Cummings— A. Yes, sir. Q. John L. Chisolm? A. Yes, sir. Q. Bobert Johnson? A. Yes, sir. Q. And Benjamin Wright? A. Yes, sir. Q. You do recognize that those are the persons, along with others, who sought permission to play? A. Yes, sir. Q. And I believe that that permission was refused by you? A. It was, sir. Q. And you were operating under the regulations which you have just now mentioned? A. I did, sir. Q. Thank you. Mr. Perry: You may examine the witness. Cross Examination by Mr. Rosen: Q. Mr. Adams, what physical facilities do you have for — [p. 7 1 - checking in golfers at the Golf Course ? A. I operate from the main Club House, which is a brick building, that has an upstairs rest room for ladies, and downstairs we have a men’s locker room, consisting of 35 lockers. We have three John E. Adams—for Plaintiffs—Cross 52a showers, and we have two toilets and one urinal, and a small lobby. Q. You say a small lobby? A. Yes. Q. Are there any other buildings on the Municipal Golf Course? A. There is leased to the Stono Golf Club a build ing adjoining No. 9 fairway, which has been leased for 30 years to them, which is a private club chartered in the State of South Carolina, which we have no control of. Q. All golfers are not members of that Club, is that correct? A. No, sir. It is a private club, with restricted membership. Q. Mr. Adams, approximately how many people play golf at the Municipal Golf Course during the average year? A. Possibly between 35,000 and 40,000, sir. Q. Would that be the number of people or would that be the number of games played? A. No that would be the total number of rounds played. That does not indicate the number of players, because it is all repeat play. — [p. 8]— Q. I see. And has the play increased tremendously during the last several years? A. It has, sir. Q. Has the Course about reached the saturation point from the standpoint of the ability to take any additional golfers ? A. At times it is. Q. At what times? A. Especially in the spring of the year, and Saturdays and Sundays. Q. It has reached the saturation point from the stand point of additional persons, is that correct? A. Yes, sir, for satisfactory play. Mr. Rosen: The witness is with you. Redirect Examination by Mr. P erry: Q. Mr. Adams, I have one or two more questions, please. Did I understand you to say, sir, that a portion of the Golf John E. Adams—for Plaintiffs—Redirect 53a Course premises is leased to a private corporation? A. One building, sir. Q. And it is leased to that private corporation by whom, please? A. By the City of Charleston. Q. By the City of Charleston. So the City of Charleston is actually the owner of those premises still, isn’t it? A. — [p. 9 ] - It is, sir. Q. Thank you. The Court: Who decides who shall play golf? Do you have to be a member of the Golf Club? A. No, sir. It is open to any citizen. The Court: It is open to every citizen? A. Every citizen, going under the jurisdiction of the rules set down by the Golf Course Commission as of the date. The Court: Is there anything else? Mr. Perry: Nothing further for the plaintiffs, your Honor. Mr. Rosen: Your Honor, we had planned to place on the witness stand Mr. Adams, but since he has already taken the stand, we will have no other witnesses. However, we would like to introduce into evidence a copy of a deed. I have agreed with Mr. Perry as to the introduction of this deed. Would you allow me a second, your Honor? The Court: Yes, sir. Mr. Rosen: Your Honor, this is a deed from Edisto Realty Company to the City Council of Charleston, which deed conveys to the City the major part of the John E. Adams—for Plaintiffs—Redirect 54a present Municipal Golf Course. The defendants — [p. 10]— would like to introduce this as a defendants’ exhibit. Mr. Perry: No objection, your Honor. Deed from Edisto Realty Company to City Council of Charleston, dated July 26, 1929, marked in evidence as Defendants’ Exhibit A. Mr. Rosen: Your Honor, I won’t take up the time of the Court in reading the contents of that deed, which is now in evidence, but it provides that in the event this Course is not used as a Municipal Golf Course that the title to the same reverts to the grantor of the deed, who is the Edisto Realty Com pany, on which I will have something further to say a little later on in the proceedings. The Court: All right. Mr. Rosen: We have no further testimony. The Court: Do you gentlemen have anything to say in argument ? # * # # — [p- 15]— Mr. Rosen: We of course take the position that the public welfare and the goal of amicable race relations require that the races be segregated in publicly owned facilities. I certainly understand that many courts have taken a contrary position. The Court: Haven’t all of them taken that posi tion? Mr. Rosen: Yes, sir, I believe all of them have. Your Honor, I would like to say this, however,— The Court: And they have taken that position based upon the belief that the decision of the Supreme Court of the United States was a proper decision, Colloquy 55a which I don’t take. I don’t think the Supreme Court had any right to read into the constitution what they did in the 1954 decision. Mr. Rosen: Your Honor, may I state something in connection with your equity powers! I would like to cite to you two or three decisions with regard to your Honor’s possible adverse holding, if the Court was constrained to hold that the State statutes are unconstitutional. At least I think the issue is clearly presented in this case, probably for the first time. If your Honor were constrained to hold that, I would like to point out to your Honor that in many of — [p. 16]— the District Court decisions in the southeast, since 1956, the courts have recognized the importance to the community the problems of a city in adjusting to whatever requirement is made by the order and have generally given to the municipalities involved a reasonable time to work out the problems which of necessity would be involved, either in a closing of the golf course or in the allowing of all citizens to play. We feel, the City of Charleston feels, that in these particular cases which I am about to cite to your Honor there was not the additional ground that is present in this case; namely, the City of Charleston holds title to this property under a deed of reverter, which means that in the event this Court issued a preemptory order that had to be obeyed at once, and the citizens and the City felt it. could not be obeyed, property, valued at tremendous sums of money, would be completely lost to the City. Your Honor, in the case of Simpkins v. The City of Greensboro, 149 Fed. Supp., 562, the Court there, after hearing the case on the merits delayed the Colloquy 56a imposition of a mandatory injunction for a period of 76 days, which was of course close to three months. In Hampton v. The City of Jacksonville, which was in 1959,—I don’t have the Federal Supplement annotation, your Honor,—it is 4 Race Relations Law Reporter, Page 339,—from the time of the hearing on the motion for summary judgment,—I don’t think —• [p- 17]— that case was tried on the merits, your Honor,— there was a total delay of six months. Your Honor, in other cases, such as Hayes v. The City of Nashville, 137 Fed. Supp., 853, the Court made its ruling and then provided that the injunc tion would not go into effect until a reasonable time had expired, during which conferences would be held with the District Judge, and so forth. I am unable to tell from the reported decision exactly how long the delay was. I assume from reading it that a delay of several months was contemplated. And to the same effect is the case of Augustus v. The City of Pensacola, Florida, 1 Race Relations Law Re porter, Page 681, and in this ease also a reasonable time was granted. Your Honor, in this particular case, the hardship here probably would be greater than in those decisions because some of the cities are in a position to close the course and then decide, in an atmosphere not charged with all of the passions that these things bring forth,—they would then be in a position to coldly decide just what they are going to do. We can’t do that. If your Honor were to issue an order today, and if we wanted to study it and decide what to do, and close it temporarily, as they did in the Edisto Beach case, we would lose the course. I point that out to your Honor, because in spite of the United Colloquy 57a States Supreme Court decisions, and in spite of the — [p. 1 8 3 - Circuit Courts of Appeals decisions, and in spite of the District Courts decisions, all of them recognize the right in equity, to allow a reasonable time, de pending upon the factual situation. We feel that a reasonable time here, your Honor, would certainly be not less than six months. There are cases that give that, where the cities are not faced with the problem that we are faced with here. And we point these out to your Honor in the hope that they will be taken into consideration if the Court decides that the State statutes in question do not meet the test of constitutionality. The Court: Well there isn’t any question, about that, is there ? Mr. Rosen: No, sir, I don’t think there is. The Court: According to the decision of the Supreme Court in 1954. The thing that bothers me more than anything else, I am so absolutely convinced that the Supreme Court of the United States in 1954 was merely legislating and not interpreting the constitution. They have taken an oath to sustain the constitution and I have taken an oath to do the same thing. And I have in mind that I cannot conscientiously follow the Su preme Court in this particular case, because I am so convinced—and practically all of the lawyers in the United States are so convinced—that the Supreme Court was wrong. And I feel that I would be violating — [p. 19]— my oath of office if I attempted to follow the Supreme Court of the United States in this particular case. Now the only thing that I can think of is to state my position and disqualify myself to hear a case of Colloquy 58a this kind, because of my conviction that the Supreme Court was wrong in 1954, and that I cannot con scientiously, under my oath, follow that decision of the Supreme Court. Is there anything further? Mr. Perry: I would merely like to say, sir: did I understand that you have made your ruling, sir, or is further comment indicated? The Court: You can comment. I am always open to reason. Mr. Perry: Thank you, sir. Of course we recognize that there is diversity of opinion on the Supreme Court decision, but it never theless has been decided, and I respectfully urge that this Court is bound to follow that decision. The Court: I am either bound to follow it or dis qualify myself. Mr. Perry: Well of course, sir, if that is what you intend to do. The Court: I can’t overrule the Supreme Court, If I could, I would. But that is impossible. And if I decide this case, I will have to follow the Supreme — [p. 2 0 1 - Court decision. But I cannot in good conscience, as I see it now—I am open to argument,—I cannot in good conscience follow this decision under my oath. I took an oath to support the constitution, and I don’t think this is the constitution. The Supreme Court was conscientious in its decision. I make no aspersions as to the motive of the Supreme Court in rendering such a decision. But I am absolutely con vinced that there is absolutely nothing in the con stitution that authorizes this decision. And under my oath, I don’t think I have to follow it. Colloquy 59a Is there anything further! Mr. Perry: Would you indulge me a moment, your Honor? The Court: All right. Mr. Perry: There is perhaps one additional obser vation that we would like to make. Your Honor, may we request that whatever course your Honor takes, and I believe you have practically indicated what you may decide to do— The Court: I think that I should disqualify myself. I can’t follow the Supreme Court conscientiously in the 1954 decision. Mr. Perry: Well, sir, what position would we be in? Is this morning’s hearing a nullity? The Court: I don’t know what position you would — [p. 21]— be in. Mr. Smythe: Your Honor, you are not disqualify ing yourself at this time, as I understand it. You are taking the question of disqualification under advisement, is that correct? The Court: Yes. I am willing to hear from you on that question. Mr. Perry: May we request a speedy ruling from your Honor? The Court: I will give you a speedy ruling. I don’t know exactly when it will be, but I will make the ruling in a very short time. Is there anything further? Mr. Rosen: We have nothing further, your Honor. Mr. Perry: We have nothing further, your Honor. The Court: Court will recess. # * # # * Colloquy 60a Order Civil Action No. 7048 This is an action in which the plaintiffs, all of whom are Negro residents of the City of Charleston, South Carolina, on behalf of themselves and all other Negro citizens sim ilarly situated, seek a judgment declaring that Sections 181, 182, 183 and 184, Title 51 of the 1952 Code of Laws of South Carolina and the policy, custom and usage of denying to these Negro plaintiffs and the members of the class they represent permission to use the Charleston Mu nicipal Golf Course, owned, operated, supervised and maintained by the City of Charleston, South Carolina, while at the same time permitting and granting white per sons the right, privilege and permission to use said golf course, deprive these persons and members of their class of their constitutional rights as secured by the Fourteenth Amendment to the Constitution of the United States. Plaintiffs also seek an injunction against the operation of the Charleston Municipal Golf Course on a basis that requires segregation solely because of race or color. I have held two hearings in this matter, one of which was the consideration of plaintiffs motion for preliminary injunction. I concluded, after hearing the evidence, that the preliminary injunction should not issue and proceeded thereafter to hear the matter on its merits. The Complaint alleges among other things that on or about November 23, 1958 the plaintiffs presented them selves at the Charleston Municipal Golf Course and sought permission to play golf, directing their request to the de fendant, John E. Adams, manager of said golf course. It is further alleged that the defendant, John E. Adams, refused to grant permission to the plaintiffs to play golf on the golf course facilities. In accordance with the require- 61a Order ment of Section 51-182 of the Code of Laws of South Carolina for 1952, signs which read “ white only” were posted at the entrance of the golf course. The answer of the defendants, though rather lengthy and detailed, admits the material allegations of the com plaint, particularly the events of November 23, 1958. De fendants deny, however, that the policy, custom and usage of the defendants in providing golfing facilities for the white citizens and residents of the City of Charleston out of the public funds, while failing and refusing to admit Negroes to these facilities on account of their race and color, is unlawful and constitutes a denial of their rights under the equal protection and due process clauses of the Fourteenth Amendment to the Constitution of the United States. Defendants further deny that Sections 51-181, 51- 182, 51-183 and 51-184 of the Code of Laws of South Caro lina for 1952 are unconstitutional. From the evidence, there is no dispute between the parties concerning the events of November 23, 1958. Further, according to the testimony of the manager of the golf course, Mr. John E. Adams, the policy, custom and usage of denying Negroes the privilege of using the Charleston Municipal Golf Course still persists, and signs which read “white only” are still posted at the entrance to the golf course. He further testified that the golf course officials still consider themselves bound by Section 51-181, 51-182, 51-183 and 51-184, Code of Laws of South Carolina for 1952. The statutes involved prohibit the joint use of public parks, public recreation centers, public amusement centers or public bathing beaches by members of both the colored and white races in any county in South Carolina having a City with a population of more than sisty thousand 62a Order (60,000) persons, according to the 1930 Census of the United States. These statutes apply only to Charleston County and the Charleston Municipal Golf Course is the only public recreational facility involved in this suit. The same statutes were before this Court in Clark v. Flory, 141 F. supp. 248 (1956) and I stated at that time that in my opinion they were unconstitutional. However, in that action, which involved the Edisto Beach Park, the legislature of South Carolina closed the park to all per sons prior to the hearing of the suit, and I held that the closing of the park had rendered the issues of that case moot under the decision of Utah v. Wycoff Co., 344 U. S. 237, 97 L. Ed. 291 and Michael v. Cockerell, 161 F. 2d 163. The statutes in this case are clearly unconstitutional under Holmes v. City of Atlanta, 124 F. supp. 290, 223 F. 2d 93, 350 U. S. 879. See also Dawson v. Mayor, 220 F. 2d 386 (4th Cir. 1955), aff’d. 350 U. S. 877 and Tate v. De partment of Conservation and Development, etc., 133 F. Supp. 53, 231 F. 2d 615, and 352 U. S. 838. This Court further concludes that the policy, practice, custom and usage of denying these Negro plaintiffs and other members of the class they represent the right and privileges of admission to use the facilities of the Charles ton Municipal Golf Course is a denial to these plaintiffs and members of the class they represent the equal pro tection of the laws as secured to them by the Fourteenth Amendment to the Constitution of the United States, and such practice, policy, custom and usage is, therefore, un constitutional. During the hearing in this matter, counsel for the City introduced into evidence the deed to the golf course premises and stated that should the City of Charleston cease to operate the golf course as a municipal golf course, 63a Order under the terms of the deed, the premises will immediately revert to the grantor or its successors. It was further stated that the City of Charleston has invested a large sum of money into the golf course facilities and that there are many issues which will have to be resolved by the City of Charleston and the Golf Course Commission, in cluding public acceptance of the operation of the golf course facilities on a non-segregated basis. In view of the foregoing, I have concluded that it will be equitable for this Court to grant the defendants’ a reasonable period of time within which to resolve the matters which they have presented. Now, in accordance with this opinion it is, Ordered, adjudged and decreed that Sections 51-181, 51- 182, 51-183 and 51-184 of the Code of Laws of South Carolina for 1952, which require segregation of the races in the use of parks and recreational areas in any County of South Carolina having a City with a population of more than sixty thousand (60,000) persons according to the 1930 Census of the United States, are unconstitutional and void in that they deny and deprive plaintiffs and other Negro citizens similarly situated of the equal protection of the laws and due process of law secured by the Fourteenth Amendment to the Constitution of the United States and rights and privileges secured by Title 42, United States Code, Section 1981 and 1983. It is fu rth er ordered, adjudged astd decreed that the policy, practice, custom and usage of denying these Negro plaintiffs, and other members of the class they represent, the right and privilege of admission to use the facilities of the Charleston Municipal Golf Course is a denial to these plaintiffs and the members of the class they represent the equal protection of the laws as secured to them by 64a Order the Fourteenth Amendment to the Constitution of the United States and such practice, policy, custom and usage is, therefore, unconstitutional. It is fu rth er ordered, adjudged ahd decreed that the defendants, their successors in office, assigns, agents, serv ants, employees and persons acting on their behalf, be and they are hereby permanently enjoined from enforcing the aforesaid statutes and the policy, custom and usage of denying to these plaintiffs and other Negroes similarly situated the right to use the Charleston Municipal Golf Course on a basis which requires discrimination on ac count of race or color. It is fu rth er ordered, adjudged aud decreed that this judgment shall become effective eight (8) months from the date hereof. It is fu rth er ordered that the defendants pay all costs in this matter. In concluding the Court wishes to add that it is not in agreement with the famous “ 1954 Decision” of the Supreme Court and its flow of case law which has necessarily guided this opinion. It has always been the belief of this Court that the decisions of our highest Court which first as certain and define the intent of the framers and adopters of the Constitution and its amendments have the effect of becoming an integral part of the Constitution itself. As such these first interpretations, like the Constitution, can be lawfully altered and modified only by the amending process. Plessey v. Ferguson, 163 U. S. 537 (1896) announced that separate but equal provisions for races was not violative of the Equal Protection Clause of the Fourteenth Amendment. Upon this pronouncement, it is my opinion 65a Order that the Court should have closed its doors to further in terpretation on the point. The cases are clear and I am bound by my judicial oath to follow them. I do so with reluctance, and with the hope and belief that Congress will some day pass legislation forbidding the Supreme Court from rendering decisions not supported by the Constitution. Let a copy of this order be served upon each of the defendants. /s / A shton H. W illiams Ashton Id. Williams United States District Judge A T rue Copy, A ttest, E rnest L. A llen Clerk of U. S. District Court Eastern Dist. So. Carolina Signed at Charleston, S. C., this 26th day of November 1960 [Seal] 66a Notice o f Appeal UNITED STATES DISTRICT COURT F oe the E astern D istrict of South Carolina Charleston Division Civil Action No. 7048 J ohn H. Cummings, J ohn C. Chisolm, R obert J ohnson, Benjamin W right, for themselves and all other persons similarly situated, Plaintiffs, T he City of Charleston, a Municipal Corporation, The Charleston Municipal Golf Course Commission, Gerald M. Carter, Chairman, A lfred 0 . H alsey, Cor- nelious 0 . T hompson, T. Moultrie M cK evlin, W illiam A. D otterer, Leroy Nelson and C. D issell Jenkins, members of the Charleston Municipal Golf Course Com mission ; and John F. A dams, Manager of the Charleston Municipal Golf Course, Defendants. Notice of A ppeal to the United States Court of A ppeals for the F ourth Circuit Notice is hereby given that the plaintiffs above-named hereby appeal to the United States Court of Appeals for the Fourth Circuit from that portion of the Order of No vember 26, 1960 and filed herein on November 28, 1960 which provides that the judgment shall become effective eight (8) months from the date thereof. 67a December Notice of Appeal , 1960. Matthew J. P erky 371% South Liberty Street Spartanburg, South Carolina L incoln C. Jenkins, J r. 1107% Washington Street Columbia, South Carolina T hurgood Marshall J ack Greenberg 10 Columbus Circle New York, New York Attorneys for Plaintiffs