Petition for Writ of Certiorari — Dresner v. City of Tallahassee

Giiice-Supreme Court, U.S.

Riese m@RY . *3 FILED

Wier e: COURT. U. Be NOV 13 1962

JOHN F. DAVIS, CLERK

IN THE

Supreme Court of the United States

October Term, 10625

No. = SS

ISRAEL DRESNER, AUSTIN M. WARNER, ‘

ROBERT M. BROWN, PETTY D. McKINNEY,

MARTIN FREEDMAN, ARTHUR L. HARDGE,

ROBERT J. STONE, WAYNE C. HARTMIRE,

J. W. COLLIER, JR., RALPH L. ROY,

Petitioners,

vs.

CITY OF TALLAHASSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF THE SECOND JUDICIAL

CIRCUIT, IN AND FOR LEON COUNTY,

FLORIDA. ~

TOBIAS SIMON and HOWARD W. DIXON

Attorneys for Petitioners

706 Ainsley Building

Miami 32, Fila.

INDEX

Page

RIN ee noma Roe te Kir ENE = 2

EST et ene aR : 2

Question Presented —.....____-_. : 3

Constitutional Provisions Involved ______. ens Dw 4

ates of Ge Coe COC

perenne ee Rie baer eta a WLM OU) 10

RE ERCARS LR ni tetas Re Nore AE ROR a Neat ea 15

Cee ae ree oe 16

Appendix A — Opinion of Supreme Court of

2, pendence cen Cause ne . App. 1

B — Opinion of Circuit Court of Second

Judicial Circuit, in and for Leon

County, Florida \ Seeuecaainpeecocace Sam

© — Motion to Quash and Dismiss _. App. 17

D — Assignments of Error... App. 20

CITATIONS

Page

Boynton v. Virginia,

364 U.S. 454, 5 L.Ed.2d 206, 81 S.Ct. 182

(1960) ica : 13

Burton v. Wilmington Parking Authority,

365 U.S. 715, 6 L.Ed.2d 45, 81 S.Ct. 856

ER - mt OE eae es 14

Cooper v. Aaron,

358 U.S. 1, 3 L.Ed.2d 5, 78 S.Ct. 1401 (1958) _ 12

Crandall v. Nevada,

73 U.S. 35, 18 L.Ed. 745 (1868)... 13

Edwards v. California,

314 U.S. 160, 86 L.Ed. 119, 62 S.Ct. 164

Garner v. Louisiana,

368 U.S. 157, 7 L.Ed.2d 207, 82 S.Ct. 248

Morgan v. Virginia,

328 U.S. 373, 90 L.Ed. 1817, 55 S.Ct. 1050

EOS SE SE eee, ace eR 13

Rockwell v. Morris,

211 N.Y.S.2d 25, affirmed 215 N.Y.S.2d 502

(1961), cert-den 368 U.S. 913, 7 L.Ed.2d. 131,

- I a O nennsantnammmenvanannise 12

Taylor v. Louisiana,

370 TS. 154, 8 LeEd.2d 395, 82 S.Ct. 1188 Lies 11

/

/

CITATIONS (cont.)

The Slaughter-House Cases,

83 U.S. 36, 21 L.Ed. 394 (1873)...

Thompson v. City of Louisville,

362 U.S. 199, 4 L.Ed.2d 654, 80 S.Ct. 624

eg SSE RESON ero nee Meee pceoeintis

Thornhill v. Alabama,

310 U.S. 88, 84 L.Ed. 1093, 60 S.Ct. 736

(1940)

Twining v. New Jersey,

211 U.S. 78, 53 L.Ed. 97, 29 S.Ct. 14 (1908) _

Yick Wo v. Hopkins,

118 U.S, 356, 30 L.Ed. 220, 6 S.Ct. 1064

(1886)

13

10

12

13

14

IN THE

Supreme Court of the United States

October Term, 1962

No.

ISRAEL DRESNER, AUSTIN M. WARNER,

ROBERT M. BROWN, PETTY D. McKINNEY,

MARTIN FREEDMAN, ARTHUR L. HARDGE,

ROBERT J. STONE, WAYNE C. HARTMIRE,

J. W. COLLIER, JR., RALPH L. ROY,

Petitioners,

US.

CITY OF TALLAHASSEE,

f Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

CIRCUIT COURT OF THE SECOND JUDICIAL

CIRCUIT, IN AND FOR LEON COUNTY,

FLORIDA.

Petitioners pray that a Writ of Certiorari issue to

review the judgment of the Circuit Court of the Second

Judicial Circuit, in and for Leon County, Florida, entered

on August 16, 1962.

2

OPINIONS BELOW

Upon the conviction of the Petitioners in the Mu-

nicipal Court of the City of Tallahassee, an appeal was

taken to the Supreme Court of Florida. On November 1,

1961, the Supreme Court of Florida entered its opinion

transferring the appeal to the Circuit Court of the Sec-

* ond Judicial Circuit, in and for Leon County, Florida.

That opinion was reported in 134 So.2d 228 (Fla. 1961)

(Appendix A). The Circuit Court of the Second Judicial

Circuit, in and for Leon County, Florida, affirmed the

convictions below on August 16, 1962. An opinion was

rendered but not reported. (Appendix B)

6 JURISDICTION

The judgment of affirmation of the Circuit Court of

the Second Judiciai Circuit, in and for Leon County, Flor-

ida, was pronounced on August 16, 1962. Jurisdiction of

the Supreme Court of the United States is invoked under

28 U.S.C.A. $1257 (3).

Article V. Section 6 (3), of the Constitution of the

State of Florida provides:

“Section 6. Circuit Courts.—

a

“(3) Jvrsidiction. The circuit courts shall have

. . . final appellate jurisdiction in all civil and

criminal cases arising in the county court, or be-

fore county judges’ c.urts, of all misdemeanors

tried in criminal courts of record, and of all cases

arising in municipal courts, small claims courts,

and courts of justices of the peace... ”

6

3

From the final judgment of affirmation by the Cir-

cuit Court of the Second Judicial Circuit, in and for

Leon County, Florida, after the taking of an appeal from

the Municipal Court, Petitioners have no further appel-

late remedy under the Constitution and laws of the State

of Florida.

QUESTION PRESENTED

Where a group of Negro and white citizens traveling

in interstate commerce arrive at a municipally-owned and

operated airport terminal with the publicly announced

pur of determining whether a restaurant and other

public facilities in that terminal are available to Negroes

on a racially unsegregated Basis; and where said res-

taurant is segregated for the exclusive use of white per-

sons; and where said group seeks food and drink at said

restaurant but finds said restaurant closed to them; and

where a hostile crowd, which resents the presence and the

purposes of said group of Negro and white persons, gath-

ers outside said terminal building; and where said group

of Negro and white persons are peaceable and quiet in

their words and conduct; and where police and other

City officials arrest said group for unlawful assembly,

but arrest no one in the hostile crowd; did the arrest and

subsequent convictions of the members of said group con-

stitute a denial of due process of law and equal protection

of law, an abridgement of privileges and immunities, a de-

nial of freedom of speech and assembly under the Four-

teenth Amendment to the Constitution of the United States,

a denial of rights under Article I, Section 8, Clause 3 (In-

terstate Commerce Clause) of the Constitution of the

United States, as also a violation of 72 Stat. 737, 49

U.S. .A. See. 1301 et seq (Federal Aviation Act of 1958).

4

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution Cited:

(1) The Fourteenth Amendment to the Constitution

of the United States provides as follows:

“Section 1. All persons born or naturalized

in the United States, and subject to the jurisdic-

tion thereof, are citizens of the United States and

of the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizenship of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.”

(2) The Interstate Commerce Clause of the Consti-

tution of the United States ( Article I, Section 8, Clause 3}

provides as follows:

“Section 8. The Congress shall have power

ae

“To regulate commerce with foreign Nations,

and among the several States, and with the

indian Tribes; ....”

(3) Article IV, Section 2, of the Constitution of the

United States provides as follows:

“Section 2. The citizens of each State shall

be entitled to all privileges and immunities of

citizens in the several States.

Florida Constitution Cited:

Article ¥, Section 6 (3), of the Constitution of the

State of Florida as above set forth.

Statutes Cited:

(1) FS. 870.04 (Laws of Fla. 1961, c. 61-237) pro-

vides as follows:

“870.04. Magistrate to disperse riotous as-

sembly.

“If any number of persons, whether armed or

not, are unlawfully, riotously or tumultuously

assembled in any county, city or municipality,

the sheriff or his deputies, or any constable or

justice of the peace of the county, or the mayor,

or any commissioner, councilman, alderman or

police officer of tiie said city or municipality, or

any officer or member of the Florida highway

patrol, shall go among the persons so /assembled,

or as near to them as may be with safety, and

shall in the name of the State command all the

persons so assembled immediately and peaceably

to disperse; and if such persons do not thereupon

immediately and peaceably disperse, said officers

shall command the assistance of all persons in

seizing, arresting and securing such persons in

custody; and if any person present being so

commanded to aid and assist in seizing and se-

curing such rioter or persons so unlawfully as-

sembled, or in suppressing such riot or unlawful

assembly, refuses or neglects to obey such com-

>

‘6

mand, or. when required by such officers to de-

part from the place, refuses and neglects to do

sc, he shall be deemed one of the rioters or per-

sons unlawfully assembled, and may be prose-

cuted and punished accordingly. As amended

Laws 1961, c. 61-223, §1; Laws 1961, c. 61-237,

1

(2) 72 Stat. 737, 49 U.S.C.A. Sec. 1301 is set forth

below.

STATEMENT OF THE CASE

A. Petitioners, comprising a party of Negro and

white clergymen, had set forth together from Washing-

ton, D. C., to cities in several southern States for the

purpose of determining whether certain interstate trans-

portation facilities were available on an integrated basis

for persons of the colored race. Petitioners arrived at the

Greyhound Bus terminal in Tallahassee on June 15, 1961,

and were met by hostile persons who resented their pres-

ence and the purpose of their trip. At this time, Petitioners

were protected by the local police from any violence. Pe-

titioners procured airline tickets for their return trip

to their final destination at New York, New York, and

Newark, New Jersey, and then left the bus terminal for

the City-owned and operated Tallahassee Municipal Air-

port preparatory to embarking upon their return flight,

and they arrived at the airport in the early afternoon

on June 15, 1961.

Upon their arrival, Petitioners sought to be served

food and drink at the restaurant located in the terminal,

the same being an integral part of the terminal facilities

7

designed primarily for service to passengers in interstate

transportation. The Petitioners discovered, however, that

this restaurant was closed to circumvent the necessity for

service on a non-segregated basis. Petitioners decided to

wait until the restaurant re-opened and in connection

therewith they cancelled their reservations for their re-

turn trip. They waited in the terminal building until

approximately 11:00 p.m. that evening and thereafter

returned to the airport on the morning of June 16, 1961.

The restaurant was still closed. Petitioners thereupon

again cancelled their reservations and made new reserva-

tions for their return flight for later that day. While

Petitioners were seated in the termina! building await-

ing the operfing of the restaurant, the City Attorney for

the City of Tallahassee approached the Petitioners and

demanded that they disperse. Petitioners declined to

disperse, and they were thereupon arrested by the police

and taken into custody.

The Petitioners’ conduct was peaceable at the time

of their arrival in Tallahassee, during the time they were

at the bus terminal, while they were at the airport ter-

minal, and at the time of their arrest; and at all times

material to the matter herein they were quiet, dignified,

and polite in their words and acts.

The Petitioners were charged as follows:

“BEFORE ME, JOHN A. RUDD, Judge of

the Municipal Court of the City of Tallahassee,

Florida, personally appeared JAMES MESSER,

JR., and EDW. J. HILL, who, being duly sworn,

say that on, to-wit: the 16th day of June, 1961,

upon property owned and operated by the City of

8

Tallahassee, Florida, and located in Leon Countv,

Florida, namely, the Tallahassee Municipal Air-

port, ISRAEL DRESNER, AUSTIN M. WAR-

NER, ROBERT M. BROWN, PETTY D. Mc-

KINNEY, MARTIN FREEDMAN, ARTHUR

L. HARDGE,- ROBERT J. STONE, WAYNE

C. HARTMIRE, J. W. COLLIER, JR., RALPH

L. ROY, CHAS. A. HUNTER, JOHN J. PO-

LAND, JR., and PRISCILLA G. STEPHENS:

COUNT I, Did then and there unlawfully as-

semble in that they did, and they being more

than three (3) persons, meet together to commit

a breach of the peace, acting together and con-

certediy to occupy and to continuously occupy

certain chairs and seating facilities in the Talla-

hassee Municipal Airport, making and cancelling

group airline reservations on the two {2) operat-

ing airline schedules departing Tallahassee on

the said date, and on June 15, 1961, and meeting

together in concert attendant with circumstances

calculated to excite alarm, éndanger the. public

peace and excite fear, and in such nature as to

inspire well-grounded fear in persons of reason-

able courage, of riot, or other breaches of public

peace, and while so unlawfully assembled a police

officer of said City did go among these persons

so assembled, and making himself known to them

and each of them, did, in the name of the State

and City, command those so unlawfully assembled

to immediately and peaceably disperse, and they

and each of them did then and there refuse

and/or neglect to obey such command when

given, contrary to the laws and ordinances of said

<

9

City in such cases made and provided, and

against the peace and dignity of the said City

of Tallahassee, Florida.”

Petitioners moved to quash the aforesaid charges, but

. the said motions were denied. Fojlowing the trial, the Mu-

nicipal Court of the City of Tallahassee found the Peti-

tioners guilty of unlawful assembly as charged and or-

dered them to pay fines of $500.00 eech or, alternatively,

to serve sixty ‘50) days each in the City Jail. Petitioners

thereupon filed an appeal in the Supreme Court of Florida.

The Supreme Court of Fiorida ruled that it lacked juris-

diction to entertain the appeal and transferred the appeal

to the Circuit Court of the Second Judicial Circuit, in and

for Leon County, Florida, said court having final appellate

jurisdiction on all appeals from Municipal Courts in the

State of Florida. The Circuit Court subsequently entered

its order affirming the judgment of conviction of the Mu-

nicipal Court.

B. Federai Questions Raised Below in the Trial

Court and Before the Circuit Court of the Second Judicial

Circuit, in and for Leon County, Florida, having Appel-

late Jurisdiction.

The Federal questions were first raised prior to ar-

raignment on the day of the trial when the Petitioners

moved to quash and dismiss the charges on the grounds

that they were being deprived of their rights as guaran-

teed by the First and Fourteenth Amendments to the Con-

stitution of the United States, and that Chapter 61-237

(F.S. 870.04) was unconsitutional under the said provi-

sions of the United States Constitution (Appendix C).

Ca

10

Subsequent to the convictions in the Municipal Court,

the Petitioners appealed to the Circuit Court of the Sec-

ond Judicial Circuit, in and for Leon County, Florida, In

their Assignments of Error, they again raised their de-

fenses of denial of rights under the First and Fourteenth

Amendments to the Constitution of the United States (Ap-

pendix D).

ARGUMENT

I.

Petitioners submit that their arrests and convictions

violate the guarantees of due process of law contained in

the Fourteenth Amendment to the Federal Constitution

for the reason that there was no evidence whatsvever sup-

porting a conviction for unlawful assembly.

In Thompson v. City of Louisville, 362 U.S. 199, 4

L.Ed.2d 654, 80 S.Ct. 624 (1960), the petitioner had been

charged with loitering and with disorderly conduct arising

out of his allegedly being ‘“‘argumentative” with the police

over his arrest. The United States Supreme Court reviewed

the entire record and found that there was no evidence

to convict the petitioner. The Court stated categorically

that it is a “violation of due process to convict and punish

a man without evidence of his guilt” (4 L.Ed.2d 654, 659).

As to the charge of disorderly conduct, the Court noted

that: y

“There is no testimony that petitioner raised

his voice, used offensive language, resisted the

officers or engaged in any conduct of any kind

likely in any way to adversely affect the good

11

order and tranquility of the City of Louisville.”

(4 L.Ed.2d 654, 659)

This principle was re-affirmed by the United States

Supreme Court in Garner v. Louisiana, 368 U.S. 157, 7 L.

Ed.2d 997, 82 S.Ct. 248 (1961), wherein the Supreme

Court set aside convictions of “sit-in’’ demonstrators who

had been charged with unlawful assembly and which con-

victions were not based upon evidence to support the find-

ings of any violations of the State’s unlawful assembly

statute.

In Taylor v. Louisiana, 370 U.S. 154, 8 L.Ed.2d 395,

82 S.Ct. 1188, the Supreme Court of the United States

held that a State conviction for disturbing the peace was

based on constitutionally insufficient evidence where proof

showed only the entiy of a Negro into a white waiting

room at an interstate transportation facility.

Petitioners submit that their arrests and convictions

violate their freedom of speech and assembly as guaran-

teed under the due process clause of the Fourteenth

Amendment to the United States Constitution. The an-

nounced purpose of Petitioners’ trip was to determine

whether restaurant and other faciljies in interstate trans-

portation terminals were available to Negroes on an un-

segregated basis, and they peacefully assembled and peace-

fully demonstrated to communicate their opposition to the

admitted practice of racial segregation.

Petitioners’ activities are entitled to the same protec-

_tion as that given to peaceful picketing, and their conduct

12

is protected by,the principles announced by the United

States Supreme Court in Thornhill v. Alabama, 310 .U.S.

88, 84 L.Ed. 1093, 60 S.Ct. 736 41940).

The conditions obtaining in’ the case at Bar have a

striking analogue in the case of Cooper v. Aaron, 358 U.S.

1, 3 L.Ed.2d 5, 78 S.Ct. 1401 (1958), where the School

Board of Little Rock, Arkansas, petitioned the Federal!

courts for delay in the program of school desegregation

at that city’s Central High School because of community

hostility and violence towards Negroes. The Supreme

Court of the United States refused to suspend the desegre-

gation order and held that such violence did not afford a

basis for denying the Negro students their civil rights.

The Court stated that:

“The constitutional rights of respondents are

not to be sacrificed or yielded to the violence and

disorder which have followed upon the actions of

the Governor and Legislature (of Arkansas) .”

In Rockwell v. Morris, 211 N.Y.S.2d 25, affirmed 215

N.Y.S.2d 502 (1961), cert den 368 U.S. 913, 7 L.Ed.2d.

131, 82 S.Ct. 194 (1961), the appellant, a self-styled Amer-

ican Nazi, ha dapplied for a permit to use a public park in

New York City to make a public political speech and had

been denied the permit on the ground that if he spoke it

was “inevitable that public disorder and rioting will result”

(211 N.Y.S.2d 25, 28). The New York Court, however, held

that the denial of the permit was an unconstitutional prior

restraint on freedom of speech. The Court was presented

with a community situation much like that in the case at

Bar. New York City, with two and one-half million Jews,

13

was obviously a hostile ambiance for a neo-nazi propagan-

dist. Tallahassee, a city practicing apartheid in many re-

spects, has been anything but hospitable to those who have

urged a change in its attitudes in its race relations.

III.

The arrests and convictions of the Petitioners consti-

tute an undue burden on passengers in interstate commerce

in violation of the Interstate Commerce Clause (| Article I,

Section 8, Clause 3) of the United States Constitution un-

der the principles announced by the Supreme Court of the

United States in Morgan v. Virginia, 328 U.S. 373, 90 L.

Ed. 1317, 55 S.Ct. 1050 (1946); Edwards v. California,

314 U.S. 160, 86 L.Ed. 119, 62 S.Ct. 164 (1941) ; Boynton

v. Virginia, 364 U.S. 454, 5 L.Ed.2d 206, 81S.Ct. 182

( 1960.)

Iv.

The aforesaid arrests and convictions deprived Peti-

tioners of one of the basic privileges and immunities of

Federal citizenship, namely, the right to travel throughout

the nation free of unreasonable restraint imposed by the

States and unfettered by unlawful arrests. This right of

national citizenship, guaranteed by Article IV, Section 2,

of the United States Constitution, was announced by the

Supreme Court long ago in Crandall v. Nevada, 73 U.S.

35, 18 L.Ed. 745 (1868), and was re-affirmed in The

Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394 (3873);

Twining v. New Jersey, 211 U.S. 78, 53 L.Ed. 97, 29 S.Ct.

14 (1908).

14

Zs v.

The arrests and convictions constitute state denial of

the equal protection of the laws guaranteed by the Four-

teenth Amendment to the United States Constitution?be-

cause the police and city officials arrested the Petitioners

who were peacefully demonstrating against unlawful racial

segregation ; instead of arresting a single one of the violent

demonstrators outside the terminal; and this discrimi-

natorily applied c. 61-227, Acts of Florida 1961 (F-.S.

870.04) in contravention of the principles announced by ©

the United States Supreme Court in Yick Wo v. Hopkins,

118 U.S. 356, 30 L.Ed. 220, 6 S.Ct. 1064 (1886) and in

Burton v. Wilmington Parking Authority, 365 U.S. 715,

6 L.Ed.2d 45, 81 S.Ct. 856 (1961). a

“(j

The Petitioners’ arrests and convictions for unlawful

assembly, while interstdte passengers awaiting service

integrated service at the food counter which had previously

been given to other interstate passengers only on a segre-

gated basis, deprived them of equal protection of the laws

as guaranteed by the Fourteenth Amendment to the United

States Constitution. Cooper v. Aaron, supra, held that the

petitioner’s constitutional rights could not be annihilated

by muricipal or State officials. In Burton v. Wilmington

Parking Authority, 365 U.S. 715, 6 L.Ed.2d 45, 81 S.Ct.

856 (1961), the Supreme Court of the United States held

that a restaurant owned by a municipality but leased to

and operated by private persons cannot discriminate in

the service of food to the public on the basis of color.

VI.

The arrests and convictions are invalid for the rea-

15

son that they are in conflict with the provisions of the

Federal Aviation Act of 1958 (72 Stat. 737, 49 U.S.C.A.

Sec. 1301 et. seq.), and in particular Section 404 of said

Act (72 Stat. 760, 49 U.S.C.A. Sec. 1374) which provides,

in pertinent part, that: ;

“No air carrier or foreign air ‘carrier shalf

" make, give, or cause any undue or unreasonable

preference or advantage to any particular persong;

port, locality, or description of-traffic in air

transportation in any respect whatsoever or Sub-

ject any particular person, port, locality, or de---" +.

scription of traffic in air transportation to °

unjust discrimination or any undue or u

sonable prejudice or disatlvantage in any“ resect

whatsoever.”

CONCLUSION

For the foregoing reasons, this Petition for Writ of |

Certiorari should be granted.

Respectfully submitted,

TOBIAS SIMON -and HOWARD W. DIXON

Attorneys for Petitioners

706 Ainsley Building

Miami 32, Fla.

By a

16

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing

Petition for Writ of Certiorari has, pursuant ~o Rule

33 (1) of the Revised Rules of The Supreme Court of

The United States, been servetl by mail upon EDWARD

J. HILL, Attorney for Respondent, 216 East Jefferson

Street, Tallahassee, Florida, by air mail this — __. day

of November, 1962. ea

APPENDIX A

(TITLE OMITTED]

OPINION OF THE SUPREME COURT OF FLORIDA

Filed November 1, 1961.

An Appeal from the Municipal, Court, in and for the

City of Tallahassee, John A. Rudd, Judge.

THORNAL, J.

We have for consideration a motion to dismiss a di-

rect appeal from the Municipal Court of the City of Talla-

hassee.

We must decide whether this Court has jurisdiction

to consider the appeal.

The City charged that the appellants did “unlawfully

assemble . .. contrary to the laws and ordinances of.said

City in such cases made and provided, and against the

peace and dignity of the said City of Tallahassee, Flor-

ida.” A trial in the municipal court culminated in a find-

ing of guilt and a sentence to pay a fine wéth an alterna-

tive term in the city jail. At the outset of the trial the

appellants moved to dismiss the complaint with the con-

tention that Section 870.04, Florida Statutes, as amended

by Chapter 61-237, Laws of Florida, 1961, was being in-

validly applied against them. The City Judge announced

that “the statute is not unconstitutional on its face.”

Coming here directly from the municipal court appellants

contend that the trial judge passed directly on the validity

of a state statute and that we, therefore, have jurisdic-

tion pursuant to Section 4, Article V, Florida Constitu-

tion, The appellee’s motion to dismiss questions the juris-

App. 2

diétion of this Court to determine the matter on a direct

appeal. This motion has been argued and is now here

for disposition.

The appellants were charged with the violation of the

municipal ordinances of the City of Tallahassee. Nowhere

in the complaint were they charged with a violation of a

state statute. A reference to Section 870.04, supra, as

‘amended, will reveal that the statute condemns a riotous

assembly and provides a penalty under Section 870.02,

Florida Statutes. The offense described in the statute is

a misdemeanor triable in the state courts. The statute

does not even impliedly define a municipal offense. This

distinction is important in determining our jurisdiction.

It is perfectly clear that the municipal judge was not con-

fronted by the necessity of passing directly on the validity

of a state statute. The most that could be said would be

that he was called upon to pass upon the validity of a mu-

nicipal ordinance. In actuality, the record indicates that

he was merely revuested to decide that “the statute” was

invalid “as applied to the appellants.” The real contention

asserted before the trial judge questioned the application

of the statute, rather than its fundamental validity. .

This Court derives its appellate jurisdiction from

Article V, Florida Constitution. By Section 4/2), Article

V, supra, appeals from trial courts may be taken directly

to this Court from certain specified types of judgments.

Among these are “final judgments or decrees directly

passing upon the validity of/a state statute .. . or con-

struing a controlling provision of the Florida or federal

constitution ...” We must look te this constitutional

provision as the source of our furisdiction to entertain

the instant appeal.

App. 3

It is clear that the trial judge, at most, was called

upon to pass upon the validity of a municipal ordinance.

This is so because the appellants were charged with a

violation of the municipal ordinances, rather than with a

violation of a state statute. We have long ago held under

Section 4(2), Article V, supra, that this Court did not

have the power to entertain a direct appeal from a judg-

ment of a trial court which merely passes upon the

validity of a municipal ordinance. For purposes of de-

termining the jurisdiction of this Court, a municipal ordi-

nance cannot be classified as a “state statute.” Arm-

strong et al v. City of Tampa, Fla. 1958, 106 So. 2d 407.

While conceivably a municipal court could be considered

as a “trial court! from which a direct appeal could come

here if in some peculiar situation the municipal court

passed directly upon the validity of a state statute, such

is not and could not have been the instant situation. Boyd

v. County of Dade, Fla. 1960, 123 So. 2d 323. Moreover,

even though the appellants attempted to question the

validity of the application of the cited statute, they did

not in any fashion assault the fundamental validity of

the statute itself. Jurisdiction comes to us by direct ap-

peal when the validity of the statute is assaulted and

passed upon. When the problem involves the.validity of

the application of an otherwise valid statute, a direct

appeal here is not available unless there be a final judg-

ment or decree which construes a controlling provision

of the State or federal constitutions. Stein v. Darby, et

al., opinion filed October 11, 1961. In the instant case there

was certainly no such construction. The final judgment

of the municipal judge merely contained a finding of

guilt and the assessment of the fine. Nowhere in the

record is there a construction of the constitution. Arm-

strong v. City of Tampa, supra.

an

App. 4

Although ordinarily motions of the type involved

here would be disposed of without opinion, we deemed

it appropriate to elaborate on our reasons for the future

guidance of the Bar.

Finding as we do that this Court is without jurisdic

tion to hear the instant appeals, the motion to dismiss is

well-taken. However, we will treat the motion as a motion

to transfer an appeal improvidently lodged in this Court.

Rule 2.la (5)(d), Florida Appellate Rules. Under Section

6, Article V, Florida Constitution, the circuit courts have

jurisdiction to hear appeals. from municipal courts when

they involve questions such as those presented here. It is,

therefore, ordered that within five days from the filing

of this opinion all papers, records, briefs and other docu-

ments, including the notice of appeal, be and the same are

hereby transferred to the Circuit Court, Second Judicial

Circuit for appropriate disposition. Our opinion is not

to be construed as in any fashion pass ng upon the merits

of the appeal or the sufficiency of the record, including

the notice of appeal. These are matters to be disposed of

by the circuit court in the exercise of its appellate juris-

diction.

It is so ordered.

ROBERTS, C. J.. HOBSON, DREW and O’CONNELL,

JJ., concur

App. 5

APPENDIX B

[TITLE OMITTED]

ORDER AFFIRMING JUDGMENTS OF THE

CIRCUIT COURT OF LEON COUNTY, FLORIDA

This is an appeal from convictions in the Municipal

Court of the City of Tallahassee, Florida of the ten appel-

lants named in the caption who were charged with unlaw-

ful assembly. A fine was assessed against each of them

with an alternate jail sentence.

The formal charge is in a single count naming the

ten appellants and three others* as defendants and alleges

an unlawful assembly on June 16, 1961 “in that, they be-

ing more than three (3) persons, met together to commit

a breach of the peace, acting together and concertedly to

occupy and continuously occupy certain chairs and seating

facilities in the Tallahassee Municipal Airport, making

and cancelling group airline reservations on the two (2)

operating airline schedules departing Tallahassee on said

date, and on June 15, 1961, and meeting together in con-

cert attendant with circumstances calculated to excite

alarm, endanger the public peace and excite fear, and in

such nature as to inspire well-grounded fear in persons of

reasonable courage, of riot, or other breaches of public

peace, and while so unlawfully assembled” were com-

manded by a police officer of the city, after identifying

himself: as such, to immediately and peaceably disperse,

and they refused or neglected to do so.

*Of these three one was acquitted and the other two were granted

a nolle prosequi.

App. 6

The appellants contend that the judgments pursuant

to convictions violate their rights guaranteed by the Flor-

ida and United States Constitutions in that they have

been denied the equal protection of the laws and have been

deprived of liberty or property without due process of law.

They contend that the state statute, Chap. 61-237, Laws

of 1961, (F. S. 870.04), (which, by reference adoption in

a municipal ordinance,* is made an ordinance of the City

of Tallahassee) is unconstitutional and void, either on its

face or as it has been applied to the appellants in this case.

The pertinent portions of the statute, adopted as an

ordinance, are: e

“If any number of persons .. . are unlawfully,

riotously or tumultuously assembled in any...

city or municipality ... any ... police officer of

said city or municipality . . . shall go among the

persons so assembled . . . and shall, in the name

of the state command all the persons so assem-

bled immediately and peaceably to disperse; and

if such persons do not thereupon immediately

and peaceably disperse, said [officer] shall com-

mand the assistance of all persons in seizing, ar-

resting and securing such persons in custody; and

if any person present ... when required by such

[officer] to depart from the place, refuses or neg-

lects to do so, he shall be deemed one of . . . the

persons unlawfully assembled and may be prose-

cuted and punished accordingly.”

‘Sec. 23-38, Tallahassee Code, provides that it shall be unlawful

for any person to commit any act which is or shall be recognized by

the laws of the state as a misdemeanor. The penalty is a maximum

fine of $500.00 or 60 days imprisonment or both.

App. 7

The facts.in the case are not in dispute and squarely

present the question as to whether or not the conduct of

the appellants was an exercise by them of rights they hold

under state and federal constitutional provisions, which

would preclude their prosecution, conviction and sentence

for unlawful assembly in the trial court.

The appellants are clergymen, two being rabbis and

the others being ordained ministers of several Protestant

denominations. They are residents of New Jersey, New

York, Massachusetts or Connecticut. Some of them are

of the white race and some are negroes. About June 12

or 13, 1961 they, together with eight other clergymen

from the same general area, departed from Washing-

ton, D. C. by interstate common carrier bus for a so-

called “Freedom Ride” into Virginia, the Carolinas,

Georgia, and Florida. The bus ride terminated in Talla-

hassee June 15, 1961. The “Freedom Riders” left their

buses at the Greyhound bus terminal there and went into

the terminal lunch room to obtain food which was served

them.

This trip was sponsored and at least partially fi-

nanced by an organization known as CORE (Congress

on Racial Equality) which has been aggressive in pro-

moting racial integration and desegration. The trip was

well publicized, having been given wide coverage in all

news media including radio and television. The time and

place of arrival in Tallahassee was heralded and well

known.

The purposes of the “Freedom Ride”, as stated by

appellant Collier, who was the spokesman for the group,

were two-fold: (1) To ascertain whether or not there were

-

App. 8

facilities available on an integrated basis to interstate

passengers in waiting rooms, in rest rooms, in eating

facilities in the terminals through which they would pass;

and (2) To bear witness as ministers, rabbis and clergy-

men to the struggle to obtain those rights “guaranteed

us by the Constitution.”

Shortly priur to the time the buses bearing the “Free-

dom Riders” were scheduled to arrive at about noon on

June 15, there had gathered in the vicinity of the bus

station a number of persons and groups of persons. Law

enforcement officers, including city police, had been dis-

patched to the area to prevent any disturbance. It was

suspected that resentment against the “Freedom Riders”

might result in some attempts at violence toward them or

precipitate other disorders. When the buses arrived, law

enforcement personnel moved in and gave protection to

the passengers as they left the bus and entered the lunch

room in the terminal. Apparently they were served in

the lunch room under circumstances and policies satis-

factory to them.

In approximately an hour after arrival at the bus

terminal the eighteen “Freedom Riders” proceeded to the

Tallahassee Municipal Airport ostensibly for the purpose

of boarding a 3:25 P. M. Eastern Air Lines plane for

passage to Washington, Newark, or New York. They

were transported to the airport in private cars presumably

furnished by local sympathizers with their objectives.

Upon arrival at the airport they found that the res-

taurant there had been closed. When the time approached

for arrival of the 3:25 plane the ten appellants cancelled

the reservation they had previously made for the flight.

App. 9

The other eight boarded the plane when it arrived and

departed for their destinations in the East.

At that time, the airport arrangement provided sep-

arate waiting rooms, or areas, for white and negro; also

separate rest rooms; and separate areas for serving food,

the white area being a glassed-in place and the negro

consisting of a counter with several stools. However, as

mentioned before, the eating service had been discontinued

by the closing of the restaurant facilities. A sandwich

vending machine was in the lobby, but the prices on same

hed been marked up from previous prices.

The appellants stayed together in a more or less

compact group in the lobby area most of the time and

no attempt was made to enforce separation of the races in

the waiting room. Rest rooms were used by them without

observing the designation of the segregated facilities.

After cancelling their reservations for the 3:25 P. M.

flight they sought and ultimately obtained reservations

for a flight the next morning at 8:25 on an E. A. L. plane.

They remained in the airport until about 11:00 P. M.

that evening for the purpose of observing if the restaurant

would open and service be granted to them. The restaurant

remained closed.

Law enforcement officers, including city police, were

detailed to keep order. The activities and objectives of the

appellants had been the subject of news reporting and

groups of people were seen to be gathering or attempting

to gather in the vicinity of the airport. There were

critical and hostile comments made about the appellants.

The police turned away some of those gathering when it

: App. 10

was apparent such persons had no airport business or in-

terest. Persons were even screened at the entrance and

turned away by officers if they had no business to trans-

act at the airport.

The chief of police advised the appellants that the air-

port terminal would close for the night at approximately

11:45 P. M. and a spokesman for appellants requested

protection as they moved from the airport into the city

and also on the return to the airpert the next morning.

Such protection by escort of law enfercement officers was

provided. r

The appellants thus left the airport at about 11:00

P. M. on the 15th to return the next morning prior to the

scheduled departure at 8:25 A. M. of the plane on which

they had cbtained reservations. They were given escort

security protection on both the occasions of leaving and

returning to the terminal.

The restaurant was also clesod on the morning of

June 16. At 8:15 A. M! all ten of the appellants cancelled

their reservations for the 8:25 flight and remained in

the waiting room after that flight had departed. At 8:20

A. M. they sought, and ultimately obtained, reservations

on a National Airlines flight scheduled to depart at 1:47

P. M. that day, but cancelled just prior to noon.

During these periods there continued to be move-

ments and gathering of groups of people in cars and there

was a hostility and épen resentment against the conduct

and attitudes of the appellants. A considerable number

of police, sheriff's deputies and highway patrolmen had

been detailed to prevent disorder. City, county and state

App. 11

officials, including the Governor, were apprehensive and

moved to provide necessary law enforcement personnel to

preserve order.

At about 12:15 P. M., Mr. James Messer, Jr., city

attorney of Tallahassee and a special police officer of the

city, after conferring with the mayor and chief of police

of the city, approached the appellants who were together

and inquired if there was a leader of the group. Appellant

Collier arose and identified himself and assumed to act

as spokesman. Mr. Messer identified himself and his

official positions, exhibiting his police badge. Others in

the group gathered around Mr. Messer and Rev. Collier

and Mr. Messer read to them a proclamation. He stated

that the assembly of the appeilants at the Municipal Air-

port of Tallahassee will tend to create a disturbance or

incite a riot or disorderly conduct within the City of Talla-

hassee at its Municipal Airport over which the city had

jurisdiction. He mentioned incidents of the previous night

and fears of more unrest. He then commanded them in

the name of the state and city to immediately and peace-

ably disperse, and -xplained that such meant from the

airport property. He then added that failure to so dis-

perse would result in arrest for unlawful assembly. Collier

asserted that they were interstate passengers, to which

Messer replied that he did not consider them to be bona

fide passengers in view of their reservation cancellations.

Severa! local sympathizers with the appellants dis-

persed, but appellants failed to do so. After about 11%

minutes, Mr. Messer turnedego the Chief of Police and

remarked “Chief, you can carry out your orders.” The

appellants were arrested and taken into custody.

The appellants take the view that the segregation

App. 12

practices with regard to waiting rooms, rest room facil-

ities, and restaurant or eating facilities at the airport

were violative of constitutional guarantees of equal pro-

tection of the law. They would also inject ‘into the case

the ingtallation of sandwich and cigarette machines, at or

just prior to their arrival, which inflated the prices of

merchandise vended to double what it had been. The

closing of the restaurant on the day of their arrival and

its opening shortly after their departure is viewed as an

¢mportant factor.

These facts are, in the view of this Court, not at all

significant in the legal problems involved in the charge

against the appellants and the disposition of such charge

by the trial court.

The municipality of Tallahassee operates in a pro-

prietary capacity and in a governmental capacity. Among

its proprietary functions is the ownership and operation

of a municipal airport and supervision over the conces-

sions there. Assuming, but not deciding, that its policies

of segregation of the races.in its facilities are unlawful

and did constitute a violation of some duty to the ap-

pellants if enforced against*therh, and further assuming,

without deciding, that the closing of the restaurant under

the circumstances violated some duty to them, do such cir-

cumstances justify a concerted protest demonstration by

appellants of their views and convictions over a protracted

period of time during which tensions and tempers rise

in the community which threaten to erupt into disorder

and thus render the city, in its governmental capacity,

powerless to terminate the demonstration in the exercise

of its police power?

App. 13

_Stated another way, may not a lawful assembly for

the purpose of protesting and demonstrating epposition

to a course of policy practiced by the municipality become

an unlawfully assembly when pursued to unreasonable

lengths imposing unreasonable burdens on others, after the

lawful objectives of the demonstration had been fairly

accomplished? — ‘

It is fundamental that our constitutions accord to

the citizen of the Unite States the right of freedom of

speech and of assembly and to peaceably petition for a

redress of grievances, Such freedoms are jealously guarded

and when exercised in good faith and in good order may

not be lawfully interfered with by governmental action.

However, it is not a license to take into one’s own hands

the enforcement of law or by excessive harassment, effect

coercion and acceptance of one’s convictions and interpre-

tations of legal rights by governmental entities whose

policies are in conflict. Such procedures wholly ignore

the very machinery provided by the constitutions and

laws of the nation and state for the declaring, securing

and enforcement of constitutional and other legal rights.

It is the courts, both state and federal, to whom resort

is readijy available for citizens to seek recognition and

enforcement of legal rights and immunities. That such

courts may not move as swiftly as the individual would

wish does not authorize pursuit of personal means which

unnecessarily create or threaten public disturbance or

disorder, or which substantially interfere with normal,

orderly functions of a public facility.

Such a procedure is a form of anarchy which, if it

becomes an accepted practice, can have only the effect

of seriously weakening orderly government.

App. 14

/

The appellants, prior to the reading of the riot act

to them, had achieved their announced objectives. They

had observed both at the bus station and the airport the

integration or lack of it of the waiting room, rest room

and restaurant facilities. They had very effectively borne

witness as clergymen and otherwise of their sympathy

with the struggle to obtain desegregation of the various

facilities of interstate travel. \

To aecommodate and facilitate those legitimate ob-

jectives the law enforcement agencies of city, county and

state had given protection against potential violence or

other disorder from groups or individuals who resented

the activities of the appellants. This protection was af-

forded at the bus station, at the airport on the afternoon

of June 15, on the evening of June 15 when the appel-

lants left the airport to come into town and on the fol-

lowing morning when they returned to the airport pur-

portedly to take an early plane. However, instead of

using the reservations they had obtained they made a

cancellation. This was thrice they had made last minute

cancellations of reservations for the sole reason that they

wished to eat in the restaurant, which was closed. In the

meantime their conduct and persistence was arousing in-

creased resentment and anger in the community with

threats of violence and disorder toward the appellants. .

pattern. They would make reservations for travel, wait

in the lobby until just before the plane they were sched-

uled to take arrived’ and then cancel, make reservations

on a later flight and then again cancel at the last minute,

at all times remaining in the airport but never taking a

plane. The effect is obvious. The seats and other facilities

Obviously, the conduct of appellants had revealed a

i l,

App. 15

are occupied by them and their use denied to those who

actually .wished to travel. The use of rest rooms and

wash rooms by them partakes more of lodging than a

comfort feature for those whose sole purpose is some air-

port business. The reservation of space and last minute

cancellation prevented the use of that space of the flights

involved, resulting in loss and inconvenience to the air

line involved and probable denial to other would-be travel-

ers of the use of that space. The sole purpose of such a

course of harassment was to goad the municipality and

its restaurant lessee to open the restaurant and gratify

the appellants’ wishes that they be served in the style and

manner they deemed to be their right.

Controversies between citizens and governmental units

are not unique. In nearly every instance there is a con-

flict in what the citizen contends he has a right to claim

and the governmental entity which would deny the validity

of such claim. The citizen may freely express his views

and seek to cultivate converts to them with a view of

bringing moral or political pressures on the officers of

the public body to accord his demands. However, such

means must be exercised in a manner that is reasonable

and not harmful to the rights of others or the peace and

good order of the community. Especially is this true

when the controversy is one of public interest in which

there are strong and emotional feelings on the part of a

substantial number of persons in the community.

The courts, both state and federal, are open to re-

solve controversies on constitutional issues in duly in-

stituted and processed civil actions. Indeed, the very issue

in the demonstrations of the appellants was subsequently

presented to and adjudicated by the United States Dis-

App. 16

trict Court for the Northern District of Florida. Brooks,

et al v. Tallahassee, 202 Fed. Supp. 56. When citizens

press their demonstrations in behalf of 4 cause (however

worthy they deem their objectives to be) beyond the bounds

of fully and effectively delivering their message and reach

the stage that they materially and harmfully interfere

with the orderly business and lawful activities of others,

who are acting in public or private capacities, then the

conduct is disorderly and assembly for carrying it out

is unlawful. Such was the case here.

The judgments appealed from are hereby affirmed.

Affirmed.

BEN C. WILLIS

Circuit Judge

App. 17

)

APPENDIX C

MOTION TO QUASH AND DISMISS PRIOR TO AR-

RAIGNMENT BEFORE THE MUNICIPAL COURT IN

AND FOR THE CITY OF TALLAHASSEE, a Municipal

corporation of Florida. —

MR. SIMON: At this time, if your Honor please,

the defense will move to quash and to dismiss the charges

against these defendants on the following grounds:

First, that the charges of the City of Tallahassee do

not state an offense against the defendants under the ordi-

nances of the City of Tallahassee or the statutes of the

State of Florida.

: Second, the alleged offenses occurred beyond the city

limits of the City of Tallahassee and this Court is without

jurisdiction to try these offunses.

Third, the statute pursuant to which the defendants

were arrested and with which the defendants are charged

and which they are charged with having violated, namely

Florida Statutes, Chapter 61-237, is invalid and is un-

constitutional, constitutes a denial of rights under the

Declaration of Rights of the Florida Constitution and con-

stitutes a denial of rights under the Federal Constitution

to the United States and the First and Fourteenth Amend-

ments thereto and as a consequence these arrests were un-

lawful and the charges based thereon are without founda-

tion.

Next, the defendants which constitute a party of

Negroes and whites who were located in a municipally-

App. 18

owned airport in the City of Tallahassee and were attempt-

ing to use the public facilities of this airport on a racially

unsegregated basis acted at all times in a peaceful and

dignified manner; their arrests constitute a denial to the

defendants of the equal protection of the law under the

Fourteenth Amendment to the Federal Constitution and

a denial of due process of law, a denial of privileges and

immunities of State citizenship guaranteed thereby; a de-

nial of the privileges and immunities of Federal citizenship

since they were at all times on and in an instrumentality

of the municipality of Tallahassee and were attempting

to use the facilities thereof, which facilities are required

by Federal law to be made available to all citizens with-

out regard to their race or color.

Next the defendants at the time of the arrests were

passengers in interstate commerce awaiting departure at

the \Municipal Airport of Tallahassee of their plane from

Tallahassee to points beyond the State of Florida and

their arrests constitute a violation of their rights of un-

fettered travel free of racial discrimination under the

Interstate Commerce Clause of the Federal Constitution,

namely Article I, Section 8, Clause 3, and a violation of

their privileges and immunities of Federal citizenship, a

violation of the Federal Aviation laws and a violation of

the Federai Aviation Act of 1958 and, in particular, Sec-

tion 404 of said act, same being 72 Statute 760, 49 U.S.

Code, Section 1374-B.

The arresis of the defendants and their prosecution

constitute a violation of their liberty of contract as guar-

anteed by the Fourteenth Amendment to the Federal Con-

stitution.

App. 19

Next, the acts of the City officials in arresting and

in participating in the arrests of these defendants and

these prosecutions based thereon and the concomitant fail-

ure of the City officials to arrest certain other persons in

the vicinity who were threatening to exhibit acts of vio-

lence because of the defendants’ presence at the aforesaid

airport and because of the defendants’ endeavor to use the

airport facilities on an unsegregated basis constitutes

racial discrimination in violation of the due process

clause —

THE COURT: Hold on a minute.

Are you making a motion, arguing a motion or are

you testifying?

MR. SIMON: I am making a motion.

THE COURT: Leave out your facts and make the

motion according to law.

MR. SIMON: (Continuing) —in violation of the

Due Process Clause and the Equal Protection Clause of

the Fourteenth Amendment to the Constitution of the

United States and corresponding provisions of the Florida

Constitution whereby the defendants respectfully move

this Court to quash and dismiss the information and

charges herein filed.

App. 20

i

APPENDIX D

ASSIGNMENTS OF ERROR.

1. The Court erred in entering its judgment against

the defendants for the reason that the statute pursuant to

which the defendants were arrested and which the de-

fendants are charged with having -violated, namely, F.S.

Chapter 61— is invalid and unconstitutional and violates

the rights of the defendants under the Florida and Fed-

eral Constitutions and denies to them the due process of

law and the equal protection of laws and consequently,

the defendants were unlawfully and illegally arrested and

the charges placed against them were without foundation.

2. The Court erred in entering its judgment against

the defendants for the further reason that the said arrests

and charges constitute a denial to the defendants of the

equal protection of the law under the Fourteenth Amend-

ment to the Federal Constitution: a denial of due process

of law guaranteed thereby; a denial of the privileges and

immunities of State citizenship guaranteed thereby; and

a denial of the privileges and immunities of Federal citi-

zenship since the defendants were deprived of restaurant

facilities in the Tallahassee Municipal Airport owned and

operated as an instrumentality of the City of Tallahassee,

by reason of their color or association with persons of

color, and the said facilities were not made available to

them without regard to their race or color.

3. The Court erred in entering its judgment against

the defendants for the reason that the defendants were

passengers in interstate commerce awaiting departure of

their plane from .Tallahassee to points outside the State

App. 21

of Florida, and consequently the racially discriminatory

arrests and prosecutions brought against the defendants,

constitute a violation of their rights of unfettered travel

free of racial discrimination under the Interstate Com-

merce Clause of the Federal Constitution (Article I, Sec-

tion 8, Clause 3), a violation of their privileges and im-

munities of Federal citizenship, a violation of the Federal

Aviation Laws, and a violation of the Federal Aviation

Act of 1958, and in particular, Section 404 of said Act (72

Stat. 760; 49 U.S.C.A., Section 1374 (b)).

4. The Court erred in entering judgment against

the defendants for the reason that the arrests of the de-

fendants and their prosecution in view of the evidence

constitutes a violation of their liberty of contract as guar-

anteed by the Fourteenth Amendment to the Federal Con-

stitution.

5. The Court erred in entering its judgment against

the defendants for the reascn that the acts of the City of-

ficials in arresting and prosecuting the defendants who

constituted a party of Negroes and persons in association

with Negroes and who were peaceable, quiet, and dignified

at ail times, constitute patent racial discrimination by a

municipality in violation of the due/process clause and

“équal protection clauses of the Fourteenth Amendment

to the Constitution of the United States.

6. The Court erred in entering its judgment against

the defendants for the reason that the same was contrary

to the weight of the evidence.

7. The Court erred in entering its judgment against

_ the defendants for the reason that the same was contrary

to law.

. 8. The Court erred in entering its judgment against

the defendants for tHe reason that the arrests of the de-

fendants and their subsequent trial and conviction by the

Municipal Court in and for the City of Tallahassee con-

stituted racial discrimination against the defendants by

reason solely of their color or association with persons of

color in violation of the obligations placed upon the States

by the Fourteenth Amendment to the Constitution of the

United States not to discriminate against any person or

persons solely by reason of their color or associations with

persons of color.

9. The Court erred in entering its judgment against

the defendants for the reason that the arrests of the de-

fendants by peace officers and public officials of the City

of Tallahassee and the defendants’ subsequent trial and

conviction in and by the Municipal Court in and for the

City of Tallahassee, constituted State aid of racial dis-

crimination against the defendants by reason solely of

their color or association with persons of color by a lessee-

restauranteur (at the airport) of the City of Tallahassee,

in violation of the obligations placed upon the States by

the Fourteenth Amendment to the Constitution of the

United States not to discriminate against any person or

persons solely by reason of their color or association with

persons of color, and also in violation of the Federal Avia-

tion Act of 1958 and in particular, Section 404 of said

Act (72 Stat. 760; 49 U.S.C.A., Section 1374 (b)), .and

in further violation of the obligations placed upon the City

of .Tallahassee, a Florida Municipal Corporation, by the

provisions of F.S. 332.08 (3).