Appendix — National Ass'n for the Advancement of Colored People v. Claiborne Hardware Co.

| Oftice Supreme Court, WS,

FILED

81-202 wl $2 1981

Ne. 81- ALEXAND STEVAS

Se — —

IN THE

Supreme Court of the United States

OCTOBER TERM, 1981

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE, et al.,

. Petitioners,

CLAIBORNE HARDWARE COMPANY, et al.,

Respondents.

On Writ of Certiorari to the Supreme Court of Mississippi

APPENDICES TO

PETITION FOR WRIT OF CERTIORARI

LLOYD N. CUTLER

JAMES ROBERTSON

WILLIAM R. RICHARDSON, JR.

DRAKE CUTINI

WILMER, CUTLER & PICKERING

1666 K Street, N.W.

Washington, D.C. 20006

(202) 872-6000

Of Counsel: Tuomas I. ATKINS

WILLIAM L. ROBINSON CHARLES E. CARTER

FRANK R. PARKER NATIONAL ASSOCIATION Fon

LAWYERS COMMITTEE For THE ADVANCEMENT OF COLORED

CrviL RIGHTS UNDER LAW PEOPLE

733 Fifteenth Street, N.W. 1790 Broadway

Washington, D.C. 20005 New York, New York 10019

(202) 628-6700 (202) 245-2100

Counsel for Petitioners

July 31, 1981

SS TE TS

INDEX OF APPENDICES

Appendix A—Opinion of the Supreme Court of Mis-

r mee ae

Appendix B—Opinion of the Chancery Court of the

First Judicial District of Hinds County,

Zr

Appendix C—Judgment of the —— Court of Mis-

c re vee

Appendix D—Letter Extending Time to File a Petition

for Rehearing in the Supreme Court of

Mississippi to and Including January

r

Appendix E— Decision by the Supreme Court of Mis-

sissippi Denying Petition for Rehearing..

Appendix F—Order Extending Time to File a Petition

for Writ of Certiorari to and Including

.

Appendix G— Final Decree of the Chancery Court of

the First Judicial District of Hinds

County, Mississippi ..................................

Appendix H—Petition for Rehearing in the Supreme

Court of Mississippi and Brief in Sup-

... ee

Page

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APPENDIX A

SUPREME COURT OF MISSISSIPPI

No. 51488

NATIONAL ASSOCIATION FOR THE ADVANCEMENT

OF COLORED PEOPLE et al.

V.

CLAIBORNE HARDWARE COMPANY et al.

Dec. 10, 1980

Rehearings Denied March 4, 1981

Before SMITH, P. J., and SUGG and COFER, JJ.

COFER, Justice, for the Court:

Beginning April 1, 1966, a boycott of retail merchants

of Port Gibson and Claiborne County was in effect for

some length of time. This suit, in the Chancery Court of

the First Judicial District of Hinds County, resulted

from the boycott. The suit, brought by Claiborne Hard-

ware Company and twenty-three other complainants, re-

tail merchants in Claiborne County, and filed October

31, 1969, named as defendants the National Association

for the Advancement of Colored People (NAACP), Mis-

sissippi Action for Progress (MAP), a domestic non-

profit corporation and 146 individual defendants (indi-

viduals), (NAACP, and individuals, NAACP, et al.),

these individual defendants largely making common cause

with defendant NAACP in the suit. The bill of complaint

charged defendants with conspiracy to injure and ruin

the businesses of the several complainants by tortious

involvement with complainants’ rights to pursue their

lawful trade and business through defendants’ conspiracy,

2a

boycott, interference, and restraint of trade. In their

suit complainants alleged and charged:

1. The complainants charge that beginning on or

about April 1, 1966, and continuing daily thereafter

each, every and all of the defendants, corporate, and

individual defendants, hereinbefore set forth, com-

bined and entered into an agreement and conspiracy,

with a unity of design and purpose and a precon-

ceived plan, the malicious and unlawful object of

which was to ruin and cause injury to the herein-

before named businesses of the complainants and

others; that said defendants did not enter into said

conspiracy and combination for the purpose of pro-

tecting or advancing any legitimate interests of their

own; and that said act constituted an unlawful con-

spiracy.

2. The complainants charge that the means em-

ployed by the defendants, and each of them in carry-

ing out and to effect the purpose of the iliegal and

unlawful combination, plan, scheme, and conspiracy,

was and is likewise malicious, illegal and unlawful;

that the defendants have since April 1, 1966, daily

engaged in and committed malicious, illegal and

unlawful acts of injurious falsehoods, deception,

force, intimidation, threats, coercion and violence

against the customers and prospective customers of

the complainants. .

3. The complainants charge that in pursuance of

the aforesaid conspiracy to injure the businesses of

complainants and others, that the defendants and

each of them executed and are continuing to carry

out said malicious, illegal and unlawful plan and

scheme to the great damage of complainants; and

that said conspiracy on the part of all and each of

said defendants was induced in malice toward the

complainants and was and is without justification

3a

or lawful purpose; and that its objects as aforesaid

have been and are being accomplished by illegal

means and in an unlawful manner.

4. The complainants charge that on or about

April 1, 1966, and daily thereafter, the defendants

and each of them entered into an unlawful combina-

tion among themselves and others who are unknown

to complainant to illegally bring about a secondary

boycott to the businesses of the complainants and

others with the intent and purpose of causing loss

to the complainants and others by coercing the cus-

tomers and prospective customers, against their will,

to withdraw and withhold their beneficial business

intercourse from the complainants by the infliction

of physical injury to said customers and prospective

customers on their person and property; by the

threat of physical injury; by intimidation so as to

put said customers and prospective customers in

fear of such injury; through the fear of incurring

the displeasure persecution and vengeance of said

combination; and by threats to said customers that

unless they withdrew or withheld their beneficial

business intercourse from the complainants and

others against whom the conspiracy, combination

and concert of action is directed, that said combina-

tion would cause injury to said customers in their

person, property and business. Complainants further

charge that by the use of threats, intimidation, and

coercion, the said defendants intended to overcome

and did overcome the will of the customers and

prospective customers of the complainants, and by

such unlawful and illegal means, intended to and

did compel said customers to refrain from trading

with the complainants. Complainants further charge

that said defendants committed acts and spoke words

to said customers and prospective customers of com-

plainants that caused them to fear for their lives

4a

and safety; and that they were in such apprehension

of damage that said customers were and are so in-

fluenced thereby as to prevent them from freely trad-

ing with complainants, as said customers so desire to

do; and that the complainants assert that they at no

time material hereto had any dispute, disagreement

or controversy with any of the defendants herein

or the combination thereof. Complainants further

charge that the said illegal secondary boycott was

and is an unlawful invasion of their property rights;

that complainants have been caused to suffer great

harm and damage as a result thereof; and that com-

plainants, because of said malicious attempt to ir-

reparably injure them and each of them, without

purpose, by said secondary boycott, are entitled to

recover damages jointly and severally from said

defendants.

(These allegations were used as complainants’ basis for

charging interference and restraint of trade on defend-

ants’ part, also.)

After delay in the United States District Court and

the Fifth Circuit Court of Appeals [Henry v. First Na-

tional Bank of Clarksdale, 50 F.R.D. 251 (N.D.Miss.

1970), 444 F.2d 1300 (5th Cir. 1971), cert. denied, 405

U.S. 1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 (1972), re-

hearing denied, 406 U.S. 963, 92 S.Ct. 2057, 32 L.Ed.2d

351 (1972)], trial was begun on June 11, 1973, on the

Bill of Complaint and Cross Bills of some of the defend-

ants. After testimony was taken over a long period of

time, the chancellor rendered opinion August 9, 1976,

which was followed by decree consistent therewith dated

and filed on August 19, 1976.

The complainants had prayed for actual damages al-

leged to be in the amount of $3,542,466.04. The chancel-

lor awarded aggregate money decree to them in the

amount of $950,699 plus solicitor fees in the amount of

5a

$300,000, a total recovery of $1,250,699. Chancery juris-

diction was availed of for use of the attachment in

chancery statute (Miss. Code Ann., § 11-31-1 (1972) j and

for injunction. Injunction against use of guards at

stores, persuading or otherwise procuring potential cus-

tomers to withhold their patronage, and against individ-

ual activity by the defendants was ordered by the decree.

(Although the granting of injunction has been assigned

as error, the error has not been argued, and NAACP,

et al. say, at the conclusion of their brief ... the injunc-

tive aspects of the case are now moot... .”).

Appeal was taken therefrom to this Court. Defendants-

appellants successfully invoked the aid of the federal

court for relief against full compliance with our appeals

supersedeas statute [Henry v. First National Bank of

Clarksdale, 424 F.Supp. 633 (N.D.Miss.1976), aff'd 595

F.2d 291 (5th Cir. 1979)]. Appellants do not assign as

error the chancellor’s failure to award relief on their

cross bills, nor is there a cross appeal by the complainants

as to amount of the decree nor as to the court’s dismissal

of the cause as to certain of the defendants.

On appeal, twenty-eight errors are assigned, but ap-

pellants’ arguments are made as to the following prop-

ositions:

1. The appeals for a boycott to protest racial

discrimination were lawful communications protected

by the First Amendment.

A. The allegedly “secondary” character of

the boycott is both irrelevant and unproven.

B. The chancellor’s conclusions regarding in-

timidation are unsupported by record and Con-

stitutional limitations.

2. All of the three theories of liability adopted

by the chancellor were erroneous.

6a

A. Mississippi’s anti-boycott statute cannot

support the finding of liability.

1. The statute purports to forbid activity

protected by the First Amendment and is there-

fore unconstitutional on its face.

2. Retroactive application of the anti-boy-

cott statute was erroneous under state law and

deprived appellants of due process of law.

B. Mississippi’s trade restraint statutes do

no apply to the Port Gibson boycott.

C. The common law of conspiracy to com-

mit tortious interference with business does

not support the finding of liability.

3. The chancellor erred in awarding damages

without first separating out the amount of loss

resulting from Constitutionally protected ac-

tivity.

4. The award of damages was speculative

and improper in many respects.

A. The chancellor erred in awarding dam-

ages for goodwill.

B. The chancellor erroneously depended upon

indirect evidence of lost profits where more

reliable evidence was available.

C. In obvious ways, the appellees’ theories

for calculating lost profits were improper and

yield only speculative results.

D. The chancellor erred in failing to correct

for appellees’ mitigation of their losses.

E. The chancellor erred in awarding damages

representing prejudgment interest on lost earn-

ings.

7a

5. The award of attorneys’ fees was error

because the anti-boycott statute was inapplicable

and for cther reasons.

A. It was error to include in the award at-

torneys’ fees incurred in federal litigation.

B. The record contains no evidence and the

chancellor made no findings to permit appellate

review of the attorneys’ fee award.

6. The chancellor abused his discretion in

denying appellants’ motion for a change of

venue.

On liability, we affirm the Chancellor’s decision as to

some defendants, and reverse it as to others, as herein-

after indicated. We reverse as to damages and remand

the case to the lower court for trial on the issue of

damages only.

(MAP has filed its own assignment of errors and

separate brief, all of which will be noticed later in this

opinion. )

Reaching early appellants’ Point VI, attacking the

Chancery Court’s failure to grant appellants’ request for

a change of venue to Claiborne County, we find no error

in the retention of the case in the Chancery Court of the

First Judicial District of Hinds County.

The suit might properly have been brought “in the

Chancery Court of any county where the defendant, or

any necessary party defendant, may reside or be found.”

Mississippi Code Annotated, Section 11-5-1 (1972). The

suit was for injunction and recovery of damages against

multiple defendants largely resident of Claiborne County.

However, at least three defendants, including NAACP

and MAP “resided” in the First Judicial District of

Hinds County.

8a

Appellants, in support of this assignment of error

have cited Gillard v. Great Southern Mortgage & Loan

Corp., 354 So.2d 794 (Miss. 1978), and Illinois Central

Gulf RR v. Stedman, Admrz., 344 So.2d 468 (Miss. 1977).

The Gillard case involved no resident of the county

wherein the suit was brought. The Stedman case was

brought in a county permissible for venue purposes by

Section 11-5-1, but far from the county of the accident

claiming the life of Mrs. Stedman’s deceased. This Court

did not hold it to be error not to grant a change of

venue on that account, but pointed out that, on retrial,

the reversal being on faulty instruction, the circuit court

should again consider the motion for change of venue

under the doctrine of forum non conveniens.

The granting of the motion was addressed to the sound

discretion of the court, and, in order to assert error in

refusing the change, it is necessary for the movant to

show prejudice to him in the refusal, such prejudice not

appearing here. Gillard, supra; Mississippi State High-

way Comm. v. Rogers, 240 Miss. 529, 128 So.2d 353

(4961); Stokes v. State, 240 Miss. 453, 128 So.2d 341

(1961).

No reversible error was committed in the court’s denial

of the requested change of venue.

Black people number more than three-fourths of the

population of Claiborne County. With the momentous

weight of civil rights progress augmented in great meas-

ure by federal civil rights laws and led by dedicated

activists, by the time the boycott here involved had begun

the blacks had obtained overpowering authority in the

ballot box. In the elections which took place in 1967 they

from their number elected the chancery clerk, and might

easily have put members of their ranks in practically all

of the county’s elective offices.

Late in 1965, a group of their numbers, whether

spontaneously or by authority of some group is not clear,

had put together certain complaints and areas of relief

which concerned them. About the same time, the NAACP

movement had taken hold in Claiborne County which

movement ;wsulted in the organization of a chapter

whose power and desires were being expressed. The late

1965 points of relief and the exponents of them were

silenced or otherwise replaced by a group which had the

leadership of Charles Evers, Field Secretary for the

NAACP. In two missives they delineated and articu-

lated to the addressees thereof their immediate concerns.

The first of the communications, dated March 14, 1966,

was addressed to the mayor and board of aldermen (ob-

viously of the City of Port Gibson), the Claiborne County

Board of Supervisors, the Board of Education and Sheriff

McKay (both obviously of Claiborne County). The needs

therein expressed were prefaced by a frank consideration

of what may be correctly regarded as an alternative or

an option probably facing those who had the power to

satisfy those needs:

We hope it will not be necessary to resort to the

kind of peaceful demonstrations and selective buying

campaigns which have had to be used in other com-

munities. It takes manpower, time and energy which

could be better directed at solving these problems

which exist in Port Gibson and Claiborne County by

mutual cooperation and efforts at tolerant under-

standing.

No one likes to have to resort to picketing and

other kinds of demonstrations . . . Just as no one

likes to be the target of this kind of demonstration.

But this sort of thing is inevitable unless there can

be real progress toward giving all citizens their equal

rights. There seems to be no other alternative.

There followed twenty-one needs (less two left blank

therein, Numbers 4 and 5), as follows:

10a

1. A community affairs committee, made up of

both races, needs to be officially constituted by the

Mayor and Board of Aldermen, the Board of Super-

visors and the undersigned, so that future problems

may be anticipated and solved before they reach a

breaking point.

2. All public schools of Claiborne County and Port

Gibson should be desegregated, both faculty, staff

and student body this coming September, 1966.

3. Three Negro policemen should be employed in

Port Gibson so that there will be impartial enforce-

ment of the laws. The Negro policemen should be

assigned to work with the white policemen on an

integrated basis, with power to arrest any law-

breaker.

4. (Omitted)

5. (Omitted)

6. Negroes should be employed in the welfare

office so that the County may demonstrate its good

faith and impartiality.

7. All business houses in the county should com-

ply with the spirit and letter of the Civil Rights Act

of 1964 by treating all customers alike and accord-

ing them the use of all facilities.

8. Verbal or physical abuse of citizens by law

enforcement officers must cease and Negroes are not

to be addressed by terms as “boy,” “girl,” “shine,”

“uncle,” or any other offensive term, but as “Mr.,”

Mrs.,“ or “Miss,” as is the case with other ¢ ens.

9. Crossing guards are to be posted at all schools,

not just the white schools.

10. All funerals shall be accorded police escort.

lla

11. Negroes should be named to the Board of

Education. And they should be Negroes satisfactory

to Negro leadership.

12. Public improvements should [sic] as roads,

street, lights and sewer system are most needed in

predominately Negro residential areas now because

of past neglect. A program for remedying this situ-

ation should be embarked on immediately.

13. The Mayor, Board of Aldermen, County offi-

cials, businessmen and church leaders should de-

nounce all extreme groups.

14. The courtroom and all other public facilities

are to be desegregated immediately by order of the

proper officials. This applies to all educational, rec-

reational and other public-owned facilities.

15. Immediate steps must be taken te insure the

selection of Negroes for jury duty in as close a rela-

tionship to the population breakdown as possible.

16 Provision must be made for the use of Negroes

as election officials and for all other public duties.

17. Official and semi-official boards and commis-

sions, now and in the future, must include appropri-

ate numbers of Negro citizens.

18. The immediate desegregation of the Claiborne

County Hosj,ial, staff, and patients.

19. Bus stations must be integrated so that Ne-

groes may be able to use all facilities.

20. All snack bars should be removed from class-

rooms.

21. Salesmen should be barred from entering

classrooms interrupting classes.

The letter closed with the request, “Please communi-

cate with the undersigned so that we may arrange a

12a

meeting to discuss the details of solutions to these prob-

lems.” It was signed by Calvin C. Williams, Chairman,

Alexander Collins, Secretary, and James N. Dorsey,

Floyd D. Rollins, Nathaniel H. Jones, Walter L. Griffin,

Sr., and Mack Tisdale.

On March 23, 1966, a letter was addressed to all

addressees of the March 14, 1966, letter, and to the

Chamber of Commerce. It conveyed to its addressees the

needs 4 and 5, omitted in the March 14, 1966, letter,

expressed as follows:

4. All stores must employ Negro clerks and cash-

iers.

A. Two or more deputy sheriffs must be

hired.

B. The city limits be extended to include

Thompson Sub Division and all other areas

where there is a concentrated group of citizens

of Port Gibson.

C. A strong housing code should be adopted

and enforced.

D. The teacher’s lounge should be restored

for teachers use rather than a centralize area

for selling.

5. That a Negro County Agent be employed, since

there is more than 8,239 Negroes in Claiborne

County.

A. That a full time home demonstration

agent be employed to assist the farm women

and young ladies to become effective Home-

makers, including, planning, feeding, and car-

ing for the farm families.

It ended with the statement, “We shall be awaiting your

answer by April 1, 1966.”

13a

In addition to the signatories to the earlier letter it

was signed by Charles Evers.

This group and these objectives appear from the

record to have been duly appointed and to have been

arrived at and adopted by the NAACP in regular meet-

ing.

Satisfactory response was not made during the inter-

val prior to April 1, 1966, and, led by Evers, the boycott

was begun on April 1, 1966, with a march along the

white business urea of Port Gibson and with a speech

by Mr. Evers on the undertaking being launched. Up-

ward of a hundred witnesses were put on the stand

during the trial (most of them defendants called ad-

versely by the complaints), and testified, and as to be

expected in such case, varying accounts of the boycott

were discussed from which the conclusion is overwhelm-

ingly warranted that it was conducted in serious fashion

with planning, and expertise in control.

The NAACP met about weekly at First Baptist Church

of which the Reverend Dorsey, one of the signatories of

the March 14, 1966, and March 23, 1966, letters noticed

above, was pastor. There were the marches and the pep

speeches usually a part of such undertaking. There were

the pickets with their signs; the group of men almost

fifty in number who were specially conspicuous because

they wore black headwear and perhaps other black cloth-

ing, so that they would be easily distinguishable. There

were the “Black Times” publications, enshrouded by very

little mystery as to editorship, etc., wherein the names

of those being boycotted periodically appeared as well as

names of some observed breaking the boycott. Eastern

States Retail Lbr. Dealers v. United States, 234 U.S. 600,

34 S.Ct. 951, 58 L.Ed. 1490 (1913). There came into

being the successful black store, “Our Mart.”

The picket signs, among other messages, gave infor-

mation that the boycott was that of the NAACP. Many

of the picketing personnel were young children.

l4a

Regrettable and lamentable events which took place

during the boycott, including the following: Dr. Martin

Luther King, Jr. was assassinated on April 4, 1968, at

Memphis under circumstances of common knowledge. On

April 18, 1969, one Roosevelt Jackson was accused of

interfering with law enforcement officers of Port Gibson

in their effort to make an arrest of another. Later in

that day policemen, one black and the other white, went

to arrest him on the charge and a struggle resulted, de-

tails of which are clouded, ending in the fatal shooting

of Jackson. At Dr. King’s slaying there arose generally

an attitude of frustration among the blacks for whom

he had worked and lived. This sense of loss is shown to

have intensified the Claiborne County boycott as it also

gained expression in incidents of significance. (It should

be said here that there is evidence also in the record

from which it might be concluded that the unfortunate

event caused not even a ripple in the blacks’ undertak-

ing.) The Jackson occurrence caused the boycotting

blacks to become highly incensed resulting in their de-

mand that the policemen involved be instantly discharged

and even in their requirement that the entire police force

be removed. Black activity took place at Jackson’s home,

at the hospital to which he was taken in an act of futil-

ity, at the Courthouse, and at First Baptist Church.

Members of the Mississippi State Highway Patrol were

sent in to help control the situation. There was weapons’

firing, by whom is not clearly detailed in the record.

Physical searches netted nothing in the way of weapons,

but a search of a musical instrument in the church un-

covered a number of weapons. The boycott which had

reduced itself to some extent by the time of Jackson’s

death was then intensified and the entire Claiborne

County’s group of white merchants were brought within

its prohibitions.

The group of men above noticed came into organized

being about a month after the boycott was begun. They

15a

were variously called Black Hats,“ watchers,“

“guards,” “enforcers,” “Deacons,” or “Deacons for De-

fense.” Their assignment, or their reasons for existence,

was described as for the purpose of seeing to it that

blacks who would trade with the boycotted white mer-

chants were made aware of the boycott and that their

cooperation was desired, and for the blacks’ protection.

There is testimony that these “watchers” organized

themselves into a quasi-military group, drilled, bought

weapons and ammunition, had target practice, two-way

radios (automobile and “walkie-talkie” types), and they

were sufficiently shown to have stood at corners or

walked assigned areas, and stopping and interviewing

would-be customers entering stores, within the area of

the “watchers’ ” assigned patrols.

The chancellor rendered an able, detailed, analyzing

opinion, fully covering the voluminous testimony. His

portrayal, well supported in the record, presents a facet

of the enforcement of the boycott:

The thread of fear and violence is woven through-

out this case. Sheriff McKay testified that many

times black people who wanted to trade with whites

appealed to him for protection. He said at least 100

blacks complained to him that they had been inter-

fered with when attempting to trade with white

merchants. He said that when the “store watchers”

relaxed the boycott would “loosen up,” particularly

on the outskirts of Port Gibson and in Hermanville

and Pattison.

Very shortly after the boycott started, Sheriff

McKay was near Hudson’s Store when he noticed

a group of black people gathered around a car

parked in front of the store. McKay approached

the crowd and said he heard the defendant Calvin

Williams tell a black man named Darden that he

(Darden) could not go into the store because it was

16a

under boycott. McKay intervened, whereupon, he

said, he heard Calvin Williams say to Darden: “You

can go in, but the sheriff here isn’t going to sleep

with you at night.” Darden did not go into the

white store.

The atmosphere of fear that prevailed among

blacks from 1966 until 1970 is strikingly revealed

in the testimony of many of the witnesses.

James Gilmore, a black man, ignored the boycott.

On the night of August 22, 1966, Gilmore’s home was

shot into. Elmo Scott, Jr., a member of the NAACP

and of the “Deacons”, together with two other

young black men, Calvin Bailey and James Whitney,

were arrested for this act and were convicted. The

Mississippi Supreme Court reversed and remanded

the case, because of exclusion of Negroes from the

grand jury. On retrial the jury was unable to agree.

At the time of the trial, these people had not been

retried. ‘

Defendant Rudolph J. (Rudy) Shields, formerly

of Chicago, was the principal figure in several alter-

cations. He boasted that he was the “most jailed

person in the Claiborne County boycott.” This man

was the acknowledged leader of the “Deacons.”

Laura Cullens testified that she lived about a quar-

ter-mile from the city limits of Port Gibson on High-

way 18. She refused to join the NAACP, and she

ignored the boycott. Her name, among many others,

was called out at the NAACP meetings, and she was

derisively referred to as an “uncle Tom.” She was

vilified and abused. In November 1966 shotgun pel-

lets were fired into her home.

Muriel Cullens, a son of Laura Cullens, did not

observe the boycott and was the target of harassment

1 Whitney v. State, 205 So.2d 284 (Miss. 1967).

17a

by blacks. Cullens’ car was run into and badly dam-

aged, and a brick was thrown through the wind-

shield.

In April 1966 soon after the boycott was started,

Johnny Cox, a black man, and his wife were stopped

by “store watchers” who attempted to prevent Mrs.

Cox from going into the O. K. Cleaners, a white-

owned business, to get some clothing. They had to

get police protection in order to go into this cleaning

establishment. About a week later, shotgun blasts

were fired into the Cox home near Hermanville. Pis-

tol shots were fired at Cox.

James Bailey, a 200-pound ex-football player, testi-

fied regarding his activities as a “store watcher.”

He was instructed to stop any black person he saw

about to enter a white business house. He said that

he had been a “bad boy” and had been convicted for

molesting a child, resulting in sentence to the State

Penitentiary. He was instructed to take the name

of any black person going into a white-owned busi-

ness and report same to defendant Pete Gusta. On

one occasion, he stopped Willie Butler, an elderly

black female whom Bailey referred to as “Nig” But-

ler, as she was going into the Piggly-Wiggly Store.

Despite his warnings, she went into the store and

purchased some items of groceries. He watched her

house and saw groceries delivered there by a white-

owned store. He instructed her to stop trading with

whites, whereupon she told him she would trade with

whom she pleased. Bailey went into this elderly

woman’s yard and destroyed her flower garden by

way of punishing her.

There is evidence in the record that an elderly

black man called “Preacher” White (Deceased at the

time of trial) was stripped of his clothing and

18a

whipped by a group of young blacks because he re-

fused to honor the boycott.

Eddie Lewis, a black man, refused to join the

NAACP and refused to honor the boycott. He was

warned by Rudolph Shields to stay out of white-

owned stores. Lewis purchased a bottle of whiskey

at a white-owned liquor store, and was observed by

Alfred Lee “Fats” Davis, a NAACP member and

activist in the black boycott. Davis took the whiskey

away from Lewis and denounced him in highly-un-

complimentary language for dealing with white peo-

ple.

Willie Myles testified that he refused to stop trad-

ing with white stores. His name was read out at

NAACP meetings as a “boycott breaker.” He said

he received threatening telephone calls. On one occa-

sion, the Port Gibson police had to give him an escort

when a carload of young blacks began following him.

He received a warning that he was going to be

whipped for buying gasoline at a white-owned service

station.

Jasper Coleman, a black man, testified that he did

not join the NAACP and continued to trade with

white merchanis after being warned by Walter Grif-

fin and Calvin Bailey. The tires on Coleman’s auto-

mobile were slashed.

Emerson Davis, a black commercial fisherman,

testified that he refused to join the boycott. He testi-

fied that Rudolph Shields, Jimmy Ellis and three

other blacks grabbed him, carried him down a street

and beat him. He was denounced as an “uncle Tom.”

He said that he received threats on his life. James

Bailey told him that he was going to kill him

(Davis).

19a

Unquestionably, the word “got around” in Port

Gibson and Claiborne County that physical harm,

as well as vilification and ostracism, could very well

be the lot of any black person observed trading with

whites. As a matter of fact, these things were

promised by the Field Secretary of the National

NAACP, Charles Evers, on at least two occasions,

and it is apparent that the black people believed him.

This NAACP-sponsored boycott was a definite suc-

cess insofar as economic damage to the white mer-

chants was concerned, even though the victims—

the white merchants—had no power to grant the

demands made on the county and municipal au-

thorities.

The testimony revealed that the defendant NAACP

provided attorneys to defend black persons arrested

and charged with violating the laws of Mississippi

in connection with acts arising from the boycott;

and this nonresident corporation posted bail bonds

and on occasion paid fines of black persons convicted

of criminal charges.

[It should be here noted that Evers promised, in what

appears to have been a nationwide televised speech, that

“if we catch you going in any of them racists white

stores, we're gonna break your. . . neck.”’]

Mrs. Leesco Guster, one of the appellants, testifying

as to Preacher White’s alleged experience as a boycott

breaker, said, “It was just talk, and I can’t recall where

it came from, because when talk starts in a smail town,

it goes everywhere.”

Testimony by some of the appellant MAP’s witnesses

tended to show fright on the part of the cooks in the

kitchens of Head Start, a service supplied by MAP,

causing them to refrain from handling groceries from

white grocers. Attorneys for appellees put into the rec-

ord that they “will stipulate that all of the Head Start

20a

MAP employees in Claiborne County were afraid to do

business with white merchants.”

The chancellor found, as he was bound to do from the

record, that:

certain

In carrying out the agreement and design, of the

defendants, acting for all others, engaged in acts

of physical force and violence against the persons

and property of certain customers and prospective

customers. Intimidation, threats, social ostracism,

vilification, and traduction were some of the devices

used by the defendants to achieve the desired results.

Most effective, also, was the stationing of guards

(“enforcers,” “deacons,” or “black hats”) in the

vicinity of white-owned businesses. Unquestionably,

the evidence shows that the volition of many black

persons was overcome out of sheer fear, and they

were forced and compelled against their personal

wills to withhold their trade and business intercourse

from the complainants. (Emphasis added).

In Southern Bus Lines, Inc. v. Amalgamated Associa-

tion of Street, Electric Railway and Motor Coach Em-

ployees, 205 Miss. 354, 38 So.2d 765 (1949), a decision

involving a labor strike attended by violence against

which, in part, an injunction was being sought by appel-

lant, this Court said in quoting from Milk Wagon Driv-

ers Union of Chicago, Local No. 753 v. Meadowmoor

Dairies, 312 U.S. 287, 295, 61 S.Ct. 552, 555, 556, 85

L.Ed. 836, 842 (1941):

. . Judges need not be so innocent of the actualities

oi such an industrial conflict as to find in the Con-

stitution, state or federal, a denial of the right of

Mississippi to conclude that the use of force was not

the conduct of a few irresponsible outsiders. The

Fourteenth Amendment still leaves the state ample

21a

discretion in dealing with manifestations of force in

the settlement of industrial conflicts.

(205 Miss. at 361, 362, 38 So.2d at 770).

It appears from the demand letters noticed herein-

above that some of the areas for remedial action were

within the power of the boycotted, and that others of

them were public in their nature within the purview

of the Port Gibson officials, the Claiborne County officials,

and the Chancery Court. As to these public complaints,

the merchants could only use the power of their influ-

ence to whatever degree such influence reached. The

blacks expected the application of that influence and

pressed into operation the boycott of the white merchants

with that goal in mind. On April 18, 1969, when Jackson

was killed, as noted above, at the hands of two police-

men, one black and the other white, there was demand

articulated that these officers be discharged, and the boy-

cott was intensified and made again applicable county-

wide. Ira Thomas testified that, “the white merchants

didn’t have anything to do with Jackson’s death—but

you’ve got to hurt who you an

There was extended testimony relative to the demands

for the employment of black citizens at responsible jobs,

and witnesses expressed the view that these demands

should be met even if either it meant the discharge of

white employees already on these jobs or that there would

be two employees doing the job requiring only one em-

ployee to do, demands for reverse racial discrimination,

as found to be true in Hughes v. Superior Court of Cali-

fornia, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950).

Appellees rely in part on Mississippi Code Annotated,

section 97-23-85 (1972), which was adopted by the 1968

session of the Legislature and became effective July 30,

1968. Its constitutionality is vigorously attacked by ap-

pellants who assert that it is contrary to the right of

22a

free speech guaranteed by the First Amendment to the

United States Constitution.

The boycott began April 1, 1966. Section 97-23-85 was

adopted in the 1968 legislative session, and went into

effect July 30, 1968, when the boycott had been in opera-

tion for upward of two years. The statute clearly reflects

no retrospective force, but only prospective. Mladinich v.

Kohn, 186 So.2d 481 (Miss. 1966), and the many deci-

sions therein contained. We are of the opinion that the

statute is not applicable to the present decision.

Appellees likewise, in part, rely upon our restraint of

trade statute, section 75-21-1, et seg., and argue that the

activity complained of operated to restrain their trade

and their right to trade. The United States Supreme

Court has seen fit to hold boycotts to achieve political

ends are not a violation of the Sherman Act, 15 U.S.C.

§ 1 (1970), after which our statute is patterned. We, in

turn, have been influenced by the decisions of that Court

in interpreting and applying it. While economic goals

were sought by appellants and while economic good was

challenged and endangered in and caused to suffer by, the

boycott, we find that the present decision may be made

without application of the restraint of trade statute.

United Mine Workers v. Pennington, 381 U.S. 657, 85

S.Ct. 1585, 14 L.Ed.2d 626 (1965); Eastern Railroad

Presidents Conf. v. Noerr Motor Freight, Inc., 365 U.S.

127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961). See also,

State of Missouri v. National Organization for Women,

Inc., 620 F.2d 1301 (8th Cir. 1980), appeal for cert. filed,

49 U.S.L.W. 3005 (June 25, 1980), No. 79-2039; and

Machesky v. Bizzell, 414 F.2d 283 (5th Cir. 1969).

The bill of complaint relies in part upon the common

law protections which had formed the base for this

Court’s decisions in Southern Christian Leadership Conf.

v. A. G. Corp., 241 So.2d 619 (Miss. 1970), and Southern

Bus Lines, Inc., supra. We regard that law as determi-

native here.

23a

Judge (now Chief Judge) Coleman of the Fifth Cir-

cuit Court of Appeals clearly stated in Smith v. Grady,

411 F.2d 181, 187 (5th Cir. 1969), that: “Any kind of

boycott is unlawful if executed with force or violence or

threats. If any of these factors—force, violence,

or threats—is present, then the boycott is illegal regard-

less of whether it is primary, secondary, economical,

political, social or other. All of these factors are here

present, and the boycott was illegally operated and we

do not need to examine into its type, whether primary or

other.

The presence of a conspiracy is beyond peradventure.

Southern Christian Leadership Conf., supra; Wagley v.

Colonial Baking Co., 208 Miss. 815, 45 So.2d 717 (1950) ;

New York Mailers Unions v. National Labor Relations

Board, 316 F.2d 371 (D.C.Cir. 1963).

An examination of our statute, section 97-1-1, and our

decisions in Southern Christian Leadership Conf., supra;

Mississippi Power & Light Co. v. Town of Coldwater, 234

Miss. 615, 106 So.2d 375 (1958); and Southern Bus

Lines, Inc., supra, will reveal the fact that a conspiracy

to be a conspiracy, must be tainted with illegality, there

must be an agreement to accomplish an illegal objective,

or an agreement to accomplish a legal objective by the use

of illegal means. The agreed use of illegal force, violence,

and threats against the peace to achieve a goal makes

the present state of facts a conspiracy. We know of no

instance, and our attention has been drawn to no deci-

sion, wherein it has been adjudicated that free speech

guaranteed by the First Amendment includes in its pro-

tection the right to commit crime.

The SLC opinion, supra, brought under unfavorable

study the matter of boycotts without advance warning

as to grievances held against the boycott victim, the

same as here exists.

24a

Mississippi Code Annotated, section 97-23-83 (1972),

adopted and effective from February 9, 1966, a date

antedating the beginning of the boycott, makes it a crimi-

nal offense to threaten with bodily harm, intimidate, or

coerce a person to prevent the offended person from do-

ing business with another. This statute was applied in

Shields v. State, 203 So.2d 78 (Miss. 1967). Shields was

one of those activists helping in the boycott, and was

convicted of violating this statute. His case was re-

versed, however, because of deficiency in the jury list

from which the convicting jury had been drawn.

That statute declares it to be a misdemeanor and

punishable:

If any person shall in any manner threaten with

bodily harm, intimidate or coerce another person to

prevent said person from lawfully trading, or carry-

ing on business, including buying or selling, he shall

be guilty of a misdemeanor and, upon conviction

thereof, shall be punished by imprisonment for not

more than one (1) year in the county jail or be

fined not more than one thousand dollars ($1,000.00),

or both.

That statute applied to, and was violated in, the

coercion, intimidation, and threats which were a part of

the boycott activity and contributed to its almost com-

plete success.

The present case, in the relief sought and granted, the

conduct of the boycott, and the applicable law, is so strik-

ingly similar to this Court’s decision in Southern Chris-

tian Leadership Conference, supra, that that decision and

the law therein held to be applicable are compelling here,

and hy it we are impelled to find that liability for dam-

ages attached to NAACP and, subject to some exceptions

hereinafter noticed, to the individual de‘: ndants.

25a

MAP, as earlier herein noticed, filed its own assign-

ments of error incorporating those of NAACP, et al. It

also assigned as error the holding that MAP was a part

of the conspiracy to boycott illegally, and the chancellor’s

rejection of its defense of duress, and further assigned

as error the failure of appellees to furnish bill of par-

ticulars and the Court’s finding that it was subject to

suit and damages award in the absence of consent by the

United States Government.

MAP is a creature of Mississippi statute as a nonprofit

corporation. Mississippi Code Annotated, section 79-11-1,

et seg. (1972). It was incorporated on September 13,

1966, for implementation of the government’s Head Start

program, 42 U.S.C. § 2928, et seg., its participation

therein being the provision of food, educational and other

services to needy children in twenty counties of the state

of which Claiborne County is one. The program is aimed

specially at pre-school children of low-income families.

It began operation in Claiborne County on January 16,

1967, with the intention to buy groceries from black and

white stores, which groceries would be needed for meals

for the children being benefited by the program. This

plan was immediately foundered by the boycott, causing

inquiries, investigations, conferences, and planning within

MAP and between MAP and boycott leaders and others.

A program arrived at to buy from four black groceries

and four white groceries was immediately abandoned

because the Head Start cooks were afraid to do business

with the white merchants (this fact established in the

record by stipulation of counsel for appellees), and Evers

threatened to banish the program from the county

rather than to permit the expenditure of government

money with white merchants contrary to the very boycott

itself. Finally, MAP adopted formally a course of action

which required the purchase of all groceries from black

stores, and, if these could not meet the MAP needs, then

urchases would be made outside the county.

26a

MAP sought and obtained an opinion or opinions from

its attorneys, upon which it issued non-participation

guidelines in political matters.

The record does not warrant a finding that MAP con-

spired with any of the co-conspirators, nor that it acted

as a principal or as a willing participant in the boycott

program. Rather, in our view, it operated as it did

through fear on the part of its cooks (all black) for their

safety, and to avoid the destruction or great impairment

of its beneficial program in the county. We are of the

view that the able chancellor erred in including it as a

judgment defendant, and, as to it, the decree will be

reversed and judgment will be rendered here for MAP.

An adequate search of the record reveals to our satis-

faction, also, that for insufficient proof, lack of proof, or

otherwise, appellees did not establish their case against

certain of the defendants, and that including them among

those against whom money decree and injunction were

awarded was erroneous. As to them, the cause will be

reversed and judgment will be rendered here for them.

These are: Priscilla Brooks, Mack Louis Davis, Ethel

Graise, Charlie Harris, Albert Jackson, Bessie Newman,

D. A. Newman, Henry Otis Preston, Roman Shorter,

Leon Tarleton, Alex Dorsey, Ella Dorsey, Bobby Kelly,

Beatrice Atlas, Lela Jones, Viola Robinson, Dora Shorter,

Rosa Shorter, Annie B. Smith, Alonzo Warner, Bonnie

Wells, Eli Brooks, Maggie Clark, Mary Durham, John

Eggleston, John Ellis, Rachel Ellis, Mrs. E. J. Jennings,

Clarence Lucas, Early Wren, Roosevelt Owens, Delores

Smith, Lessie Mae Walls, Ethel Warner, Gussie Pearl

Wilson, Willie Wilson, and Ruby Wren.

We next consider the amount of damages awarded by

the chancellor to 12 complainants as detailed in the fol-

lowing schedule:

27a

Loss of

Earnings Loss of Loss of

From Interest on Goodwill

Business Earnin as of Penal-

1966-1972 1966-1972 12/31/72 ties TOTAL

Claiborne H

Company, Inc. $ 10,874 $ 3,313 $ - $ 500 $ 14,687

2. H. McDaniel, Jr.

/b/a McDaniel

armacy 117,653 21,438 26,460 500 166,051

James E. & Geo

Hudson, d/b/a

Hudson B rs’

Piggley Wiggly

Store 174,315 40,882 -0- 500 215,697

Joe Ellis, Mrs. Ben

e

ae a

George Ellis Food

Store 27,101 7,040 -0- 500 34,641

Waddy and Rosalie

Abraham, d/b/a

Jitney J 70,351 12,213 59,153 500 142,217

Norman N. Ellis &

Barbara B. Ellis,

d/b/a Ellis Variety

Store 52,447 4,236 96,633 500 153,816

W. H. Hay, d/b/a

OK Cleaners &

Shirt Laundry 47,889 7,951 26,740 500 83,080

Murad & Mildred

Nasif, d/b/a M&M

Superstore and

Washateria 75,463 16,950 -0- 500 92,913

Port Gibson Lumber

& Supply Co., Inc. 2,500 850 -0- 500 3,850

Charles R. Dobbs,

d/b/a Western

Auto Associate

Store 13,994 2,859 -0- 500 17,353

Allen Motor Co., Inc. 2,468 839 -0- 500 3,807

Mrs. Egard A.

McCaa, d/b/a Town

& Country 11,302 2,458 8,327 500 22,587

$606,357 $121,029 $217,313 $6,000 $950,699

In addition,

the chancellor allowed complainants

$300,000 attorneys’ fees under section 93-23-85, Missis-

sippi Code Annotated (1972). The award of attorneys’

fees was improper because the statute has no retroactive

effect as stated earlier in this opinion.

28a

We also hold that the chancellor was in error in allow-

ing a penalty of $500 to each of the 12 complainants

under section 75-21-9, Mississippi Code Annotated

(1972), because our restraint of trade statute, section

75-21-1, et seg., Mississippi Code Annotated (1972), has

no application to boycotts to achieve political goals.

The chancellor also allowed $121,029 for loss of inter-

est on earnings from 1966 to 1972. Reduced to its es-

sential elements, this is simply an allowance for

pre-judgment interest and is not permitted under our

decisions. In cases involving unliquidated claims for

damages, interest can be allowed only from the time of

judgment. Alton v. Wood, 300 So.2d 786 (Miss.1974) ;

McDaniel Bros. Construction Co. v. Jordy, 195 So.2d 922

(Miss. 1967).

The chancellor allowed the 12 complainants $606,357

for loss of earnings from business for the years 1966 to

1972 in the exact dollar amount set forth in Exhibit C-63

entitled, “Special Report Determination of Losses of 12

Business Establishments of Port Gibson, Mississippi, for

the years 1966-1972 inclusive.” The report was prepared

by a firm of CPA’s who calculated lost earnings upon

the projection by Dr. Paul T. Oliver of the sales lost

during the period. Complainants’ claim for damages

must stand or fall on the accuracy of Dr. Oliver’s projec-

tion of sales, the underlying data upon which the projec-

tion was based, and the application by the accountants

to each of the individual businesses.

Dr. Oliver, an associate professor of Economics at the

University of Mississippi, testified as an expert and

explained the graphs and computations made by him. Dr.

Oliver made graphs of sales for the years 1960-65 and

projected the sales for each business for the years 1966-

72. The graphs depiete“ a trend line for sales which

included an inflation fu..or of 3.2%. The difference be-

tween actual sales and the trend line sales represent his

29a

conclusions as to the dollar amount of lost sales for the

years 1966-72. The accounting firm of Chapman, Redditt

and Grantham then converted lost sales into lost earnings.

The accountants explained the basis for converting lost

sales into earnings as follows:

BASIS FOR CONVERTING LOST

SALES INTO LOST EARNINGS

The percentage of net earnings to gross sales was

computed for the six year period 1960-65 and

averaged in order to determine the means of con-

verting lost sales into lost earnings for 1966 and

the years thereafter.

This percentage represents the average earnings

which resulted from sales during a span of normal

years without the influence of extraordinary events.

The six year period (assuming the business was

operating in the six prior years) gives a broad base

for an accurate measurement of earnings. Accepted

accounting procedures normally call for at least a

five-year base in measuring business performance

for other purposes.

METHOD OF COMPUTING LOST EARNINGS

RESULTING FROM LOST SALES

In computing lost earnings resulting from lost

sales, the following major assumptions were made:

(1) Each business should be viewed as a “going

concern” which would have continued in business

until the present (12/31/72) without a boycott.

(2) Lost sales as computed by Dr. Oliver are

the basis for computing lost earnings.

(3) If recovery of sales is made above the trend

line in any of the years subsequent to the initial

period of loss, total recovery is assumed to have

30a

been made. Therefore, any losses of sales sub-

sequent to such recovery are not used in deter-

mining lost earnings.

In computing lost earnings resulting from lost sales,

the accountants added the gross sales for the base period,

1960-65, and divided this into the total net earnings for

the base period resulting in a percentage representing

net earnings. The projected sales with inflation were

multiplied by the percentage of net earnings for the

base period, the result being projected earnings. Actual

earnings for each year, where applicable, were deducted

from the projected earnings leaving the earnings lost.

This method did not take into consideration any change

in the pricing structure or mark-up of goods for sale.

We note that gross profit, which is sales less cost of

goods sold, decreased in some of the businesses for the

period 1966-1972, which leads us to the conclusion that

pricing structure of some of the businesses must have

changed. When gross profits are reduced net earnings

are affected. In order for the computation of lost earn-

ings to be accurate, pricing policies of the businesses

involved must be taken into consideration.

The conversion of lost sales into lost earnings was

based on Dr. Oliver’s calculations of projected sales with

inflation. Dr. Oliver was furnished gross sales for each

of the businesses for the base period and from this date

projected sales with an inflation factor added.

Dr. Oliver candidly admitted that he made no study

of all facts relevant to management of the businesses

to determine what caused deviations in the base period.

He said his study showed that something happened to

all 12 businesses almost simultaneously, and if he were

to make a study to discover all facts relevant to the

fluctuation in gross sales he would consider population

growth, disasters, and other things of like nature. He

stated he would have included a number of factors other

31a

than gross sales and specifically listed: managerial skills,

a change in amounts spent on advertising, increases in

fixed costs of employees and decline in the availability

of money to spend. He said the only factor communicated

to him was the boycott and that there might well be

other factors. He assumed the impact on sales was

caused by the boycott and concluded the boycott, as an

economic sanction, had a very dramatic impact, which

was its goal. He testified that there was a recession in

1970 and he would not exclude this factor from the trend

sales line but did not show that the effect of the recession

was included. He stated the recession would have had a

dramatic effect on the business of Claiborne Hardware.

One of the problems with the projected sales as calcu-

lated by Dr. Oliver is that his calculations failed to take

into consideration other facts which we feel would affect

the estimate of future sales. (1) Would additional in-

ventory be required to increase sales? (2) Would the

individual complainants have the capital necessary to

increase the inventory, if necessary? (3) What would

the additional capital cost? (4) Would the physical plant

of each business be large enough to house an increased

inventory or would additions be necessary? (5) Was

there any change in management or employees that would

affect the volume of sales?

We are of the opinion that these factors, together with

the factors mentioned by Dr. Oliver, should be taken into

consideration in making an estimate of future sales and

that inclusion of all of these factors, or their exclusion

with an explanation, if not applicable, is necessary for

one attempting to prove lost earnings.

Another problem with the projected sales with infla-

tion is that the gross sales furnished Dr. Oliver for the

base period are not consistent. In some gross sales in-

cluded sales taxes, in other sales taxes were excluded,

and in some the inclusion or exclusion of sales tax varied

*

82a

from year to year. We recognize that these variations

might have a minimal effect on the projections, but since

this case is being reversed for retrial on the issue of

damages, the gross sales for the base period should be

stated accurately and consistently.

The chancellor also allowed some of the complainants

damages for the loss of good will. Good will was defined

in the transmittal letter as follows:

. . Goodwill is an intangible asset which exists

when the actual or expected earnings produced by

the assets of a business, exclusive of goodwill, are

in excess of a normal return. Goodwill is generated

by any causes of attractive earnings results, such

as satisfactory customer relations, location, good em-

ployee relations, or “know-how.”

The measurement of goodwill is most commonly

necessitated when a business is purchased in order

to determine a suitable purchase price for the entire

business entity and is, therefore, often determined

by sheer bargaining.

When a business was sold by a willing buyer to a

willing seller, good will is the amount of the purchase

price in excess of the tangible assets of the business.

The accountants also explained, in their letter of trans-

mittal, their method of arriving at good will.

(3) Capitalization of Excess Earnings—a percentage

return on the average annual value of the tangible

assets of a business is determined, using a period

of years immediately prior to the valuation date.

The amount of the percentage return on tangible

assets, thus determined, is deducted from the average

earnings of the business for such period and the re-

mainder is considered to be the amount of the

average annual earnings from the intangible assets

(goodwill) of the business. This amount capitalized

33a

at an applicable percentage is the value of the

goodwill.

The Capitalization of Excess Earnings Method is

considered the most theoretically sound approach by

standard accounting texts and is established by the

Internal Revenue Service as its accepted guideline

in Revenue Ruling 68-609. (Revenue Ruling 68-609

is cited in its entirety in Appendix A of this report).

We have, therefore, used this method as the basis

for our computation of lost goodwill. A brief sum-

mary of our computation follows. For a more tech-

nical explanation of our application of this method,

see Note 4 on page 8.

Our computation is made as of December 31, 1972,

and is based on the earnings of the most recent year.

We have basically considered the loss of the asset,

goodwill, to the business as of that date as if a

valuation were made for the sale of each concern.

The reason we have used the most recent year’s

results rather than an average of prior years, is that

in this particular case, a potential purchaser would

evaluate the current degree of recovery from prior

losses. The use of 3 to 5 years prior earnings aver-

age would tend to overstate the amount of goodwill

lost and would also result in a loss of goodwill for

many businesses which have fully recovered per Dr.

Oliver’s computations.

Recovery from the boycott impact, according to

Dr. Oliver, is evidenced by the crossing of the actual

sales line above the “trend line” in any year after

the initial boycott impact in 1966. For example, in

the case of Hudson on page 34, actual sales exceed

“trend line sales” for the year 1972. Therefore,

according to Dr. Oliver, Hudson has recovered from

the boycott impact, and no ‘oss of goodwill can be

determined in his case (See page 39).

34a

Since earnings lost in the year 1972 resulted from

unfavorable external events, they were, therefore, a

loss of return on the intangible asset of goodwill,

(i. e., satisfactory customer relations, etc.). We have,

therefore, capitalized the amount of earnings lost

in 1972 at 15%, the rate of expected return from

intangible assets as set forth in Revenue Ruling

68-609 for businesses with a relatively small risk

factor and stable earnings. The resulting amount

is the lost goodwill as measured at 12/31/72. (See

the computation for McDaniel on page 30).

As we understand the exhibits and testimony of the ac-

countants they did not employ the method set forth in

their transmittal letter. We fail to find that the account-

ants computed the percentage return on the tangible

assets of the businesses involved in this case and deducted

this amount from net earnings. We also note that Rev-

enue Ruling 68-609 requires sole proprietorships or

partnerships to deduct from earnings a reasonable

amount for services performed by the owners or partners

engaged in the business. This was not done.

Failure to compute good will properly resulted in an

overvaluation of good will. For example, Barbara B.

Ellis and Norman N. Ellis, doing business as Ellis

Variety Store, were awarded $96,633 for loss of good

will. The income tax returns for these complainants

show a beginning inventory for the years 1960-68 as

follows:

1960 $7,058.27

1961 4,774.15

1962 3,174.08

1963 4,595.96

1964 6,146.34

1965 7,659.26

1966 8,479.32

1967 6,794.19

1968 9,998.93

35a

The tax return for 1968 also showed other tangible

assets used in the business amounted to $3,000. Adding

these tangible assets to the beginning inventory for 1968

makes a total of $12,998.93 of tangible assets used in

the business. An allowance of $96,633 damages for loss

of good will is a gross overvaluation of good will.

We reverse the allowance for loss of good will to each

complainant and remand for further evidence on loss

of good will. On retrial the court should determine

whether a business should be permitted to recover profits

on lost sales plus loss of good will. It appears to us

there is a strong probability that allowing recovery of

profits on lost sales plus loss of good will would pyramid

damages and amount to double recovery. We express no

opinion on this question but expert testimony should

deal with the question on retrial.

We are satisfied that complainants suffered some

damages resulting from the boycott but are of the opinion

that the amount allowed was excessive under the evidence

presented.

We hold the chancellor erred in failing to reduce the

award of damages to complainants McDaniel, Norman N.

Ellis and Barbara B. Ellis for the amount earned by

them while they were out of business. Southern Christian

Leadership Conference, Inc. v. A. G. Corp., 241 So.2d 619

(Miss. 1970).

Complainants were under a duty to mitigate damages

and any award made to complainants shall be reduced

by their earnings.

AFFIRMED IN PART AND REVERSED AND

RENDERED IN PART ON LIABILITY; REVERSED

AND RENDERED IN PART ON DAMAGES; RE-

VERSED AND REMANDED IN PART ON DAM-

AGES.

PATTERSON, C. J., SMITH and ROBERTSON, P.

JJ., and SUGG, WALKER, BROOM, LEE and BOW.

ING, JJ., concur.

1b

APPENDIX B

IN THE CHANCERY COURT

OF THE FIRST JUDICIAL DISTRICT

OF HINDS COUNTY, MISSISSIPPI

No. 78,353

CLAIBORNE HARDWARE COMPANY, et al.

Complainants

vs.

THE NATIONAL ASSOCIATION FOR THE

ADVANCEMENT OF COLORED PEOPLE, et al.

Defendants

[Filed Aug. 9, 1976]

OPINION OF THE COURT

This cause was commenced in this court as an attach-

ment in chancery. The bill of complaint also seeks in-

junctive relief. Twenty-four complainants, both individ-

ual and corporate, all of whom reside or are domiciled

in Claiborne County, Mississippi, brought this action

against the National Association for the Advancement

of Colored People (NAACP), a New York corporation

authorized to carry on its activities in Mississippi, Mis-

sissippi Action for Progress, Inc. (MAP), a Mississippi

corporation, and 146 individual defendants. Fifty-five

banks within this state were made attachment defend-

ants. Answers filed by eleven banks reported a total of

$16,831.67 in their hands belonging to the NAACP.

Sixteen of the attachment defendants did not file answers.

The remaining twenty-eight banks filed answers show-

ing no funds of the NAACP in their possession.

2b

THE PROCEDURAL BACKGROUND

This lengthy procedure began on October 31, 1969,

when the bill of complainant was filed in this court. One

week later (November 7, 1969) Aaron Henry, one of the

individual defendants, filed a complaint in the United

States Court for the Northern District of Mississippi,

at Clarksdale, against three Clarksdale banks seeking

an injunction against the detention of funds arising

from the attachment process of this court.“ The federal

court ordered the state court complainants to be made

parties defendant and permitted the NAACP and MAP

to intervene as plaintiffs. On June 10, 1970, the federal

court enjoined the state court complainants from proceed-

ing with their action in this court. On June 23, 1971,

the United States Court of Appeals for the Fifth Circuit

reversed the judgment of the district court, vacated the

injunction, and remanded the cause with a directive to

the district court to dismiss for lack of jurisdiction. On

September 7, 1971, the Court of Appeals for the Fifth

Circuit denied a petition for rehearing. On November 1,

1971, the plaintiffs, Henry, et al., petitioned the United

States Supreme Court for a writ of certiorari. The

Supreme Court denied certiorari in March, 1972. The

Court of Appeals for the Fifth Circuit issued its man-

date to the district court on April 4, 1972, and on

June 14, 1972, the district court dismissed the com-

plaint. The district court also refused to consider any

issue of damages for the wrongful suit for injunction,

holding that it had been found to be without jurisdiction

in the matter.

Trial in this court began on June 11, 1973. The testi-

mony of 144 witnesses was presented to this court. The

1 Aaron Henry, et al. v. First National Bank of Clarksdale, 444

F.2d 1300 (1971), cert den 405 U.S. 1019, 92 S. Ct. 1284, 31 L.

Ed. 2d 483 (1972), reh den 406 U.S. 963, 92 S. Ct. 2057, 32 L. Ed.

2d 351 (1972).

3b

trial lasted approximately eight months, after which

the parties filed voluminous briefs. Several extensions

of time for filing briefs were granted.

THE PLEADINGS

In the bill of complaint the complainants charged that

beginning on or about April 1, 1966, and continuing

daily thereafter, the principal defendants conspired to

injure and ruin complainants’ businesses. It was alleged

that to carry out their illegal objectives the defendants

employed injurious falsehoods, deception, force, intimida-

tion, threats, coercion and violence against customers and

prospective customers of complainants, and thereby

brought about an effective and injurious common-law

secondary boycott; that the principal defendants utilized

mass picketing, made public speeches, stationed guards

in the vicinity of complainants’ business houses, phy-

sically attacked complainants’ patrons and obstructed the

entrances of their stores, preventing customers from

entering and trading; and that they threatened, coerced

and abused complainants’ customers and prospective cus-

tomers, using demeaning, offensive and insulting language

toward them, and destroyed their property.

The bill of complaint further alleged that all of the

complainants were caused to suffer great and irreparable

harm, loss and damages because of the acts of the prin-

cipal defendants. The complainants charged the prin-

cipal defendants, individually and collectively, with the

tortious interference with their rights to pursue a lawful

trade and business; with restraining trade in Claiborne

County in violation of Sections 1088, 1089 and 1092 of

the Mississippi Code of 1942 (Secs. 75-21-1, 75-21-3,

and 15-2-9, Miss. Code 1972). Complainants asked at-

tachment of funds of the defendant NAACP, pursuant

to Section 2729, et seq., Miss. Code 1942 (Sec. 11-3-1,

et seq., Miss. Code 1972). Various banks were named

4b

as having in their possession funds of the NAACP, a

nonresident corporation.

The bill of complaint asked that the principal de-

fendants be enjoined from: (1) picketing the premises of

the various white-owned business establishments; (2)

stationing guards in the vicinity of such businesses; (3)

soliciting, threatening, coercing or restraining any per-

son from trading with complainants; (4) continuing with

the secondary boycott; (5) asking others to cease doing

business with the complainants; and (6) restraining

trade in violation of the laws of this State. The com-

plainants asked damages against the defendants in the

total sum of $3,542,466.06, jointly and severally; and

prayed that damages, penalties and attorneys’ fees be

awarded each of the complainants, together with general

and special relief.

On April 30, 1970, Harold J. Barkley, Jr. moved the

Court for authority to intervene as a complainant, as

the trustee in bankruptcy in the matter of Radford

S. Jones, d/b/a “Jones’ Five ‘n’ Ten Store.” There was

no objection and the Court entered its order sustaining

the motion. No evidence was presented at the hearing to

support the allegations of intervention and this inter-

venor was dismissed.

On December 27, 1969, the NAACP filed a general and

a special demurrer alleging that the demands of the

bill of complainant were unconstitutional because they

are violative of the rights of defendants under the First

and Fourteenth Amendments of the Constitution of the

United States. All of the individual defendants joined

in these demurrers, with the exception of the defendant

Rev. Dominic Cangemi who joined in the special de-

murrer, only. The Court overruled the demurrers.

On February 23, 1970, defendant NAACP filed a

motion for a bill of particulars. The individual de-

fendants joined in this motion. Defendant MAP filed

5b

its own “Motion and Affidavit for Bill of Particulars.”

The Court directed complainants to furnish the bill of

particulars.

Defendant NAACP answered the bill on June 8, 1970,

admitting that it was a New York corporation authorized

to do and doing business in the State of Mississippi,

and that it had funds in the First National Bank of

Jackson, Mississippi. It denied the other allegations of

the bill of complainant. It filed a cross-bill in which it

prayed for actual and punitive damages in the sum of

$1,000,000.00. On June 8, 1970, the individual de-

fendants, except Rev. Dominic Cangemi, filed their an-

swer and cross-bill. They asked that each individual

defendant be awarded $160,000.00 as damages, except

defendants Evers, Ross, Collins, Martin, Smith, Light-

foot, Wyatt, Allen and Thompson, for whom the sum

of $250,000.00 each was asked.

On June 8, 1970, the defendant MAP mailed to the

Clerk of this Court, with copies to all counsel, its sepa-

rate answer, wherein it denied ail of the allegations

of the bill of complainant and the bill of particulars,

except the allegations relating to its purposes, identity,

domicile, ete., which were admitted.

MAP set out affirmative matter in its answer to the

effect that it was a part of a federal program to elimi-

nate poverty and to provide a means for low-income

persons to participate in that program.

FACTS IN THE RECORD

At the threshold, this Court accords judicial notice

to the Mississippi Statistical Abstract (1971), prepared

by the College of Business and Industry of Mississippi

State University, and the Mississippi Official and Statisti-

cal Register, compiled by the Secretary of State, for

the purpose of comparative statistics relative to the

white-to-black ratio of population in Claiborne County,

6b

Mississippi, and in the United States and the State of

Mississippi as a whole. Since this case, most unfor-

tunately, has a racial background, this comparison is

highly important. In the decade commencing in 1960 the

United States were comprised of 88.8 per cent white and

10.6 per cent black (with “other” races comprising .6

per cent). At that time the State of Mississippi had a

total population of 2,178,141, of which 57.7 per cent were

white and 42 per cent were black (with “other” races

comprising the fraction of one per cent remainder).

However, in Claiborne County, Mississippi, of the total

population of 10,900 persons, only 2,500 were white;

thus, the ratio was approximately 76 per cent non-white

to 24 per cent white. It follows that the white merchants

of Claiborne County were highly susceptible to economic

ruin when faced with a boycott (or “selective buying

campaign”) against them by over three-fourths of the

population of the county.

It is a historical and undeniable fact that whites had

exercised complete control of government at all levels

in the State of Mississippi from the time this area be-

came a part of the United States and until the time of

the occurrences herein, with the possible exception of a

relatively short period immediately following the Ameri-

can Civil War. Claiborne County was no exception,

although its population was comprised of less than one-

fourth white people. It was precisely because of such

conditions in Mississippi and several other states that

Congress was prompted to enact the Voting Rights Act

of 1965. That Act was the law at the time the boycott

sponsored by the NAACP was instigated (i.e., on April 1,

1966). The evidence adduced at the hearing showed

that blacks had no difficulty in becoming registered

voters of Claiborne County under the terms of the Act.

As a matter of fact, the preamble to the list of “de-

mands” precipitating the boycott (which will be dis-

cussed further infra) contains this paragraph:

7b

“Because Negroes now constitute a majority of

the registered voters in Port Gibson and Claiborne

County, it is obvious chat Negroes will have a power-

ful voice in the future affairs of the City and

County.” (Emphasis added).

The demands of the blacks were principally addressed to

governmental changes. In the year 1967 a general elec-

tion was to be held. It was entirely within the grasp of

this three-fourths black majority to elect whomever they

desired to fill all county and municipal offices and thereby

effectuate whatever changes or reforms they saw fit and

proper without the necessity of rancor, ill-will, threats,

violence, or the visitation of economic ruin on the white

merchants of the area.

The county seat and largest municipality in Claiborne

County is the City of Port Gibson. In the latter part

of the year 1965, a group of black leaders in Port

Gibson and other areas of Claiborne County formed a

“Human Relations Committee.” This committee was

comprised of twelve blacks, one of them an educator,

three of them businessmen, and eight of them Christian

ministers. This group presented a petition containing

thirteen demands to the Port Gibson Chamber of Com-

merce. These demands were overwhelmingly of a public

and governmental nature, and were beyond the power of

the Chamber of Commerce to grant. It is apparent that

the petition should have been presented to the governing

authorities for redress of any grievances.

In late 1965 or early 1966 the NAACP began or-

ganizing a chapter in Claiborne County. The dominant

figure in this effort was Charles Evers, the Field Sec-

retary of the NAACP in Mississippi. Organizational

meetings were held in the First Baptist Church in Port

Gibson. Upon completion of the organization, the Rev-

erend James N. Dorsey, the pastor of the church, was

elected as the first president of the Claiborne County

8b

Branch of the NAACP (Claiborne NAACP). Thereafter,

regular meetings were held each Tuesday evening at the

First Baptist Church of Port Gibson.

The petition of the Human Relations Committee was

considered by the Claiborne NAACP, and was deemed

insufficient by Charles Evers and the other leaders of

the organization. On March 14, 1966, a new set of

“immediate needs,” in letter form, was addressed to:

The Mayor and Board of Aldermen (of Port Gibson),

the Claiborne County Board of Supervisors and Board

of Education, and Sheriff Dan S. McKay (Sheriff of

Claiborne County). Apparently it was delivered to the

officials to whom it was addressed on March 17, 1966.

This letter is highly important in this case, and is here

set out in its entirety as follows (except for date and

addressees set out above) :

“Gentlemen:

“This letter is addressed to you as elected officials

and as leaders in business, religious and civic affairs.

We hope you will communicate its contents to other

citizens of the county and city also.

“We plan to make this letter public by release

to the press so that the issues may be aired

thoroughly and so that everyone may contribute to

the solution of difficulties in Port Gibson and Clai-

borne County.

“Because Negroes now constitute a majority of

the registered voters in Port Gibson and Claiborne

County, it is obvious that Negroes will have a power-

ful voice in the future affairs of the City and County.

“But progress in inter-racial cooperation cannot

wait for elections of the future, since all citizens

now are entitled to free exercise of their rights

to public accommodations, public facilities, public

services and entry into hospitals, schools, recreational

9b

facilities, ete., protection of the law, participation

in the election machiner (sic), service as jurors

and all other rights which are ours by law, logic

and American ethic.

“We hope it will not be necessary to resort to

the kind of peaceful demonstrations and select e

buying campaigns which have had to be used in

other communities. It takes manpower, time and

energy which could be better directed at solving

these problems whic. exist in Port Gibson and Clai-

borne County by mutual cooperation and efforts at

tolerant understanding.

“No one likes to have to resort to picketing and

other kinds of demonstration—just as no one likes

to be the target of this kind of demonstration. But

this sort of thing is inevitable unless there can be

real progress toward giving all citizens their equal

rights. There seems sometimes to be no other

alternative.

“Objectives of Negro citizens of Port Gibson and

Claiborne County are, simply put, to have equality

of opportunity, in every aspect of life, and to end

the white supremacy which has pervaded community

life. This implies many long-range objectives such

as participation in decision-making at every level

of community, civic, business and political affairs.

“The following are immediate needs, which should

be met without delay so that all of us, white and

Negro, may progress together and so that we may

meet other community problems together as they

arrive in the future.

“1. A community affairs committee, made up

of both races, needs to be officially con-

stituted by the Mayor and Board of Alder-

men, the Board of Supervisors and the

1 1

=.

4.

45.

46.

.

48.

9.

10b

undersigned, so that future problems may

be anticipated and solved before they

reach a breaking point.

All public schools of Claiborne County

and Port Gibson should be desegregated,

both (sie) faculty, staff and student body

this coming September, 1966.

Three Negro policemen should be em-

ployed in Port Gibson so that there will

be impartial enforcement of the laws. The

Negro policemen should be assigned to

work with the white policemen on an in-

tegrated basis, with power to arrest any

lawbreaker.

(Omitted. See letter of March 23, 1966,

infra).

(Omitted. See letter of March 23, 1966,

infra).

Negroes should be employed in the welfare

office so that the County may demonstrate

its good faith and impartiality.

All business houses in the county should

comply with the spirit and letter of the

Civil Rights Act of 1964 by treating all

customers alike and according them the

use of all facilities.

Verbal or physical abuse of citizens by

law enforcement officers must cease and

Negroes are not to be addressed by terms

as ‘boy,’ ‘girl,’ ‘shine,’ ‘uncle,’ or any other

offensive term, but as “Mr.,’ ‘Mrs,’ or

‘Miss,’ as is the case with other citizens.

Crossing guards are to be posted at all

schools, not just the white schools.

“10.

“11.

“12.

“13.

14.

“15.

“16.

“17.

“18.

11b

All funeral (sic) shall be accorded police

escort.

Negroes should be named to the Board of

Education. And they should be Negroes

satisfactory to Negro leadership.

Public improvements should (sic) as roads,

street (sic), lights and sewer system are

most needed in predominately (sic) Negro

residential areas now because of past

neglect. A program for remedying this

situation should be embarked on immedi-

ately.

The Mayor, Board of Aldermen, County

officials, businessmen and church leaders

should denounce all extreme groups.

The courtroom and all other public fa-

cilities are to be desegregated immediately

by order of the proper officials, recrea-

tional and other public-owned facilities.

Immediate steps must be taken to insure

the selection of Negroes for jury duty in

as close a relationship to the population

breakdown as possible.

Provision must be made for the use of

Negroes as election officials and for all

other public duties.

Official and semi-official boards and com-

missions, now and in the future, must in-

clude appropriate numbers of Negro

citizens.

The immediate desegregation of the Clai-

borne County Hospital, staff and patients.

12b

“19. Bus stations must be integrated so that

Negroes may be able to use all facilities.

“20. All snack bars should be removed from

classrooms.

“21. Salesmen should be bared (sic) from en-

tering classrooms interrupting classes.

“Please communicate with the undersigned so that

we may arrange a meeting to discuss the details of

solutions to these problems.

“Very truly yours,

(Signed)

“Calvin C. Williams, Chairman

“Alexancer Collins, Sec.

“James N. Dorsey

“Floyd D. Rollins

“Nathaniel H. Jones

“Walter L. Griffin Sr.

“Mack Tisdale”

It must be observed that these objectives are laudable,

commendable and highly praiseworthy for the most part.

The purpose was to gain equal rights and opportunities

for Negro citizens. The fallacy, of course, was the

veiled threat of a “selective buying campaign” directed

against the business community unless the addressees,

that is to say, the public officials, acceded to these “im-

mediate needs.” The merchants in Port Gibson and

Claiborne County, although having the possibility or

onus of “demonstrations and selective buying campaigns

which have had to be used in other communities” cast

upon them, nevertheless had no power whatever to grant

13b

any of these requests or demands of a public or govern-

mental nature.

It will be noted that demands (or “immediate needs”)

4 and 5 were omitted from the letter of March 14, 1966.

Under date of March 23, 1966, the following letter was

written:

“March 23, 1966

“Mayor and Board of Aldernien

“Claiborne County Board of Supervisors and

Board of Education

“Chamber of Commerce

“Sheriff Dan S. McKay

“Port Gibson, Mississippi

“Gentlemen:

“We are submitting the fourth and fifth items

that were off the pertition (sic) that was presented

March 17, 1966.

“4. All stores must employ Negro clerks and

cashiers.

“A. Two or more deputy sheriffs must be

B.

7.

D.

hired.

The city limits be extended to include

Thompson Sub Division (sic), and all

other areas where there is a concen-

trated group of citizens of Port Gib-

son.

A strong housing code should be

adopted and enforced.

The teacher’s (sic) lounge should be

restored for teachers use rather than

a centralize (sic) area for selling.

14b

“5. That a Negro County Agent be employed,

since there is (sic) more than 8,239 Ne-

groes in Claiborne County.

“A. That a full time home demonstration

agent be employed to assist the farm

women and young ladies to become

effective Homemakers, including plan-

ning, feeding, and caring for the

farm families.

“We shall be awaiting your answer by April 1,

1966.

“Very Truly yours,

(Signed)

“C. C. Williams

“Alexander Collins

“Walter L. Griffin Sr.

“Nathaniel H. Jones

“Rev. Mack Tisdale

F. D. Rollins

James N. Dorsey

Charles Evers“

It will be noted that one addressee was added in this

letter, i. e. the Chamber of Commerce. Further, this

letter contained one additional signature, that of Charles

Evers.

Although there was no reference to any initiating

group or organization in either of these letters, the testi-

mony at the hearing clearly established that the persons

whose signatures appear thereon were selected by the

Claiborne NAACP, as its representatives. Nathaniel H.

15b

Jones, a member of this committee, testified that the

committee was appointed by the “Board of the NAACP”

and by certain concerned black people. He said that the

list of demands was “mostly prepared at Mr. Collins’

barber shop” (having reference to Alexander Collins, a

member of the Claiborne NAACP, who was selected as

the Secretary of the committee). He further testified

that the list of grievances, or demands, dated March 14,

1966, was presented for approval at the Claiborne

NAACP meeting held on the first Tuesday evening in

March, 1966, by James N. Dorsey, President, and that

the list was read to the meeting by Dorothy Brandon,

Claiborne NAACP Secretary, and that the approximately

500 people present voted their approval unanimously.

Other testimony in the record bears out Jones’ testimony.

Walter Griffin, Sr., another member of the committee,

testified concerning the addenda prepared on March 23,

1966; he said that the committee discussed these de-

mands with Charles Evers, and that he signed it at a

Tuesday evening mating of the Claiborne NAACP.

The deadline for action to be taken by the Mayor and

Board of Aldermen of Port Gibson, the Claiborne County

Board of Supervisors, the Claiborne County Board of

Education, the Port Gibson Chamber of Commerce, and

Sheriff Dan S. McKay was April 1, 1966.

No favorable answer was forthcoming from the ad-

dressees on April 1, 1966. The Claiborne NAACP held a

meeting that morning at the First Baptist Church, under

the leadership of the national NAACP Field Secretary

for Mississippi, Charles Evers. Several hundred black

people attended the meeting, and the purpose was to

decide what action should be taken relative to the twenty-

one demands. Speeches were made by Evers and others,

and a vote was taken. It was the unanimous vote of

those present, without dissent, to place a boycott on the

white merchants of Port Gibson and Claiborne County.

16b

Although the white merchants were not addressees of

the aforesaid demands, nevertheless the direct action of

this group of black people was aimed at them. The pur-

pose was to coerce them to bring pressure to bear on

the municipal and county governments so that the de-

mands would be satisfied. The alternative was economic

ruin. This was an established tactic of the NAACP.

The testimony of many of the defendants clearly shows

this purpose. For example: Nathaniel Jones, one of the

committeemen who signed the demand letters, said under

oath that the blacks involved “expected white business

people to put pressure on the Board of Aldermen and

the Board of Supervisors to grant the demands;” he

further said it was all right for blacks to buy from white

merchants “as long as they are not in Claiborne County.”

Walter Griffin, Sr., another of the signers, testified that

it was the intention to picket the white merchants if the

public officials didn’t grant the demands; and this man’s

testimony showed that this plan was a _ preconceived

thing, even before the April 1, 1966, meeting was held.

He also testified that the purpose of the boycott was to

force the white merchants to bring pressure to bear on

the public officials so that the demands would be met.

Geneva Collins, one of the defendants, whe was elected

as Chancery Clerk of Claiborne County in 19€7, and who

is the wife of Alexande~ Collins, secretary of the

NAACP-appointed committee, testified that the white

merchants, perhaps, “could have some influence” in see-

ing that the demands were met, and that the boycott

was placed on them for that reason. James Whitney, a

defendant who testified that he was one of the “store

watchers” about whom more will be said later, said that

to him a boycott means to “demand someone to do some-

thing you want done,” and he further said that the rea-

son for the boycott was because the twenty-one demands

were not met, and they expected the white merchants

to go to the public authorities and get them to grant the

17b

demands. Charles Evers, unquestionably the leader of

this endeavor in his capacity as the Field Secretary of

the NAACP in Mississippi, testified that the demands

were almost identical to those made in Fayette (Jeffer-

son County) and Natchez (Adams County), Mississippi,

which resulted in NAACP-sponsored boycotts. Evers

proclaimed in his testimony that “I am the best thing

that ever happened to them (black people) ;” he said his

actions were aimed at “mean, racist white folks;“ he

said the white merchants could exert influence on the

public officials, and that “power in the community was

the business man, no question about that.” It would be

redundant and superfluous to recount all of the testi-

mony given by NAACP members in this regard. It was

amply shown by the testimony that the purpose was

simply to bring financial ruin to the white merchants

unless they forced the local governmental officials to

grant those demands.

Evers made a speech to several hundred black people

from the steps of the Claiborne County Courthouse in

Port Gibson on April 1, 1966. The boycott began im-

mediately thereafter.

Early in the boycott the NAACP designated a group

of young black males as “store watchers” or “enforcers.”

In his speech of April 1, 1966, Evers told his audience

that they would be watched and that the blacks who

traded with white merchants would be answerable to

him. According to Sheriff Dan McKay,’ who was present

2 Sheriff Dan McKay is a Caucasian. It is most noteworthy

that even though he had a black opponent in the election for

Sheriff of Claiborne County in 1971, and even though the electorate

was overwhelmingly black, he was elected. He had served as

Sheriff from 1964 to 1968, and in the general elections of 1967 his

wife was elected as Sheriff although she had black opposition

and although black voters far outnumbered white voters. From

1968 to 1972, he served as his wife’s chief deputy. It is most

apparent that this man was trusted by the black people of the

18b

during the speech, Evers told the assembled black people

that any “uncle toms” who broke the boycott would “have

their necks broken” by their own people. Evers’ remarks

were directed to all 8,000-plus black residents of Clai-

borne County, and not merely the relatively few mem-

bers of the Claiborne NAACP. The evidence shows that

the presence of “store watchers” or “enforcers” in the

vicinity of the white merchants’ business houses was

highly effective as a deterrent to black patronage of

those merchants.

The individual defendants who were members of the

NAACP, and who testified, approved of the demands

made upon the public officials, and the evidence shows

that they agreed to, and did participate in, the boycott

by withdrawing and withholding their trade and patron-

age from the white merchants. However, none of these

witnesses testified that he or she had a personal dispute

with any white merchant in Claiborne County. None of

these witnesses testified that he or she ever asked for

or sought a job from any white merchant; nor did any

of these witnesses represent any other black person who

was seeking a job.

On the afternoon of the day the boycott began, i. e.,

on April 1, 1966, the NAACP staged the first of a great

number of marches and demonstrations through the busi-

ness district of Port Gibson to inform the white mer-

chants and other white citizens, as well as all black

members of the community, that the NAACP had called

upon the Negro citizens te withdraw and withhold all

trade from the white merchants. After the initial march,

pickets carrying signs walked along the sidewalks ..

front of the white business houses. Periodic marches

and speeches continued in Port Gibse Pickets were

often present in the vicinity of whi owned stores on

county, and that they had faith in his fairness. The court must

take the position that his testimony was unbiased and accurate.

19b

the outskirts of Port Gibson. The legend on the signs

carried by them advised that the NAACP had Port Gib-

son under boycott. Although less frequent, there was

marching and picketing in the small Claiborne County

communities of Hermanville and Pattison.

The “store watchers” or “enforcers” on occasion physi-

cally stopped and blocked black customers and instructed

them not to trade with white merchants. Black people

were threatened with physical violence, and threatening

and abusive telephone calls were made to blacks who

were seen trading with white merchants. Some blacks

were physically assaulted for continuing to trade with

white merchants after being warned. Personal property

purchased in white-owned stores by blacks was taken

from them and destroyed. On at least two occasions gun-

shots were fired into the houses of black people who con-

tinued to trade with white-owned business establishments.

The names of black citizens who were seen trading

with Wü is were read out at NAACP meetings, and

these names were published in a mimeographed tabloid

called the “Black Times.” They were branded as traitors

to the black cause, called demeaning names, and socially

ostracized for merely trading with whites.

In July, 1966, a group of young black men organized

a militant unit called the “Deacons” or “Black Hats.”

They armed themselves and purchased radio transmitters

and receivers (“walkie-talkies”) for automobile and foot

patrol. They used this radio equipment to communicate

with each other in surveillance of the white business

houses. There is contradictory evidence as to whether

or not this unit openly engaged in military drills, but

the minutes of the organization showed that they carried

weapons, purchased ammunition, and engaged in prac-

tice-shooting on a target range south of Port Gibson.

The minutes showed that the membership of the “Deac-

ons” or “Black Hats” was comprised of the following:

20b

Atlas, Alonzo Henry, Roosevelt Scott, Elmo

Atlas, Morris Johnson, Lewis Scott, James

Anderson, Roosevelt Johnson, Hugh Shicids, Rudolph

Bailey, Calvin Jenkins, George Shorter, Willie

Barnes, Timothy Jones, Ernest Smith, Bill B.

Booker, John Jones, Nathaniel Thomas, Merritt

Butler, Robert Kilcrease, Melvin Trevillion, Jody

Davis, Alfred Lipscomb, Carl Walker, George

Ellis, Jimmy Lipscomb, Charles Warner, Julius

Goldsberry, James Minor, Nathaniel Whitney, James

Greer, James Noble, Phenix Wilson, Walter

Grove, Charles Odom, James Wilson, Leonard

Gusta, Andrew Porter, Frank Wood, Bobby

Harris, Robert Rice, Lawrence Miller, Charlie

The “prime mover” of this group was Rudolph Shields,

who came to this area of Mississippi from Chicago.

Shields said that the organization was for the purpose

of “frightening the Klan” and to protect blacks. The

evidence is silent as to whether a unit of the Ku Klux

Klan even existed in Claiborne County. But it is clear

that this group of “Deacons” or “Black Hats” was a

cause of pervasive fear among black citizens of Claiborne

County, at least to the extent of preventing trade with

white businesses.

Some time in the month of September, 1966, in Yazoo

City, Mississippi, Owen Cooper, LeRoy Percy, and Hod-

ding Carter, III, met and resolved to secure a charter

from the State of Mississippi for a corporation called

“Mississippi Action for Progress, Inc.” (MAP). The

purpose of MAP was to develop a community action pro-

gram in twenty counties within the state “to eliminate

the paradox of poverty.” The charter of incorporation

was approved on September 13, 1966.

Claiborne is one of the twenty counties in which MAP

operates. Many of *%e leaders of the NAACP and the

21b

boycott were initially employed by, or served on advisory

boards of, MAP in its Claiborne County operations. Cal-

vin Williams, secretary of the NAACP committee that

prepared and submitted the demands on the public offi-

cials, and who was one of the black leaders in the boycott

of the white merchants, became the chief executive officer

of the MAP operation in the area encompassing Clai-

borne County.

The executive director of MAP, Walter D. Smith,

advised against the employment of Calvin Williams be-

cause of his leadership activities in the Claiborne County

boycott. This advice was disregarded.

Complaints were lodged with MAP officials concerning

the activities of MAP employees in Claiborne County in

behalf of the NAACP-sponsored hoycott, but apparently

those complaints were ignored.

On January 25, 1967, the MAP Board of Directors

held a special meeting in Jackson. Among the matters

coming before that meeting was the effect of the boycott

on MAP’s Claiborne County operation. The purchase of

food for the feeding of children at the Head Start Cen-

ters in Claiborne County was discussed. Price, a white

person and assistant nutritionist, reported the attempt

to formulate a plan to purchase food from both white

and black merchants in Claiborne County. Walter D.

Smith listed the four white-owned stores selected as:

Piggly-Wiggly, M & M Grocery, Jitney Jungle, and Ellis

Grocery; and the four black-owned stores selected as:

Lee’s Grocery, Ross’s Grocery, Wyatt’s Store, and Park-

er’s Store.

Directors of MAP made a telephone call to Charles

Evers, who, as mentioned herein above, was at that time

serving as the Field Secreta:y of the NAAUP in Missis-

sippi, to attempt to get an agreement to the proposed

“revolving plan” for food purchases in Claiborne County.

Evers was adamant in his objection to the plan, and

22b

MAP was unable to reach an agreement with him.

Evers’ own testimony substantiates this. He said, “We

threatened to run them out of there,” (speaking of MAP

when he found out that groceries were being purchased

from white merchants for the children in the Head Start

Program). He (Evers) said he called MAP headquar-

ters and strenuously objected; he said he told them that

if they were going to spend federal funds with whites

they (the NAACP) had rather not have the MAP pro-

gram.

At the regular meeting of the MAP Board of Directors

held in Jackson on February 16, 1967, Walter D. Smith,

on that date MAP’s executive director, made a report

on the Claiborne County problem. He reported that on

January 26, newspapers had published articles to the

effect that the NAACP had lifted its boycott of the white

merchants. Price, MAP’s assistant nutritionist, met with

the Reverend James N. Dorsey, President of the Clai-

borne NAACP, in Port Gibson on Friday, January 27,

1967. Price and Dorsey worked out a “revolving plan”

whereby food for the Head Start Program would be pur-

chased alternately from both white-owned and black-

owned stores. This plan was considered by MAP te be

satisfactory until it was discovered that although some

white businesses had been released from the boycott by

the NAACP, the white stores involved in the “revolving

plan” had not been so released and were still under the

boycott.

In the following week, MAP was informed that the

cooks at the Head Start Centers in Claiborne County

were afraid to go into the white-owned stores; they were

fearful of being subjected to violence. However, during

the course of the trial, the only Head Start cooks called

to the witness stand testified that they refused to go into

white-owned stores to purchase groceries for the children

in the program for the reason that they were in favor of

the boycott and wanted to honor it.

23b

The MAP Board of Directors did not seek help from

local law-enforcement officers, nor did they complain to

United States authorities for protection of their cooks

from possible reprisals arising from trade with the white

merchants. They most apparently decided to go along

with Evers’ demands. They simply adopted a policy to

cease all trading with white merchants in Claiborne

County, and directed the Head Start officials to purchase

food only from black-owned stores. MAP specified that

if the black merchants were unable to supply the Head

Start Centers with necessary merchandise, then the

needed items should be purchased from merchants out-

side Claiborne County. In other words, MAP joined the

boycott against the white-owned businesses and aided and

abetted the NAACP in its avowed purpose of coercing

the white merchants to force the governing authorities

to grant their demands or face economic disaster. In

fact, MAP was continuing that practice at the time of

the trial of this cause.

MAP attorneys Eddie H. Tucker and Francis B.

Stevens, by letter dated February 16, 1967, advised

Walter D. Smith that based on a ruling by General

Counsel of the OEO, MAP was not a Community Action

Agency, but instead was a “single purpose grantee,” i. e.,

a private agency, as opposed to a public agency, and

that as a result the Hatch Act had only limited applica-

tion regarding MAP employees. Messrs. Tucker and

Stevens advised, however, that MAP’s programs were

not to be carried out in a manner supporting or identi-

fying with partisan political activities.

MAP employees in Claiborne County continued to take

an active part in the NAACP activities and to support

the boycott by picketing and marching.

The Reverend R. L. T. Smith, Sr., a black Christian

minister, was an officer and director of MAP. It was

he who made the motion which unanimously carried at

24b

the MAP board meeting of February 16, 1967, whereby

the Head Start program was restricted to food pur-

chases from black-owned stores, only. He also owned the

largest number of shares in, and was a director of, “Our

Mart, Inc.“, a black-owned retail business organized

about two weeks later in Port Gibson, which will be

more fully discussed hereinafter. Morris K. Lewis, the

executive director of MAP at the time of trial, was the

auditor of Our Mart, Inc., and attended its board meet-

ings and gave financial advice to this business. The

manager of Our Mart, Inc., Nathaniel Jones *, and others,

were permitted to use the WATS telephone line paid for

by MAP to secure business advice from Lewis.

On February 1, 1967, the mayor and board of alder-

men employed William Holt as the first black poli- aan

on the Port Gibson force. During the month of Febru-

ary, 1967 the boycott was lifted on some of the white

merchants, viz.: Allen Motor Company, Segrest Service

Station, Triangle Service Station, Port Gibson Service

Station, McFatter’s Drug Store, People’s Clothing Store,

Smith’s Package Store, Jones’ 5 & 10 Cent Store, Sher-

man Furniture Company, Patterson Furniture Company,

H. Frishman Clothing Store, Easley Seed Store, and

Standard Service Station.

On March 1, 1967, a certificate of incorporation was

issued to Our Mart, Ine. This corporation was organized

for the purpose of engaging in the wholesale and retail

grocery and clothing business in Port Gibson. Defendant

Marguerite Thompson initiated the organization of this

business, and at the regular NAACP meetings she urged

the members to purchase stock shares in this enterprise

at $25.00 per share. Defendants Julia Jones, Bessie

3 Nathaniel Jones was also a member of the NAACP-appointed

committee that submitted the twenty-one demands to the public

officials. His signature appears on both of the documents compris-

ing the demands.

25b

Buck and Marguerite Thompson were the original direc-

tors. All of the stock was owned by black people, and

all of its officers were black. The black citizens of Clai-

borne County were urged to do their trading with Our

Mart, Inc.

With the boycott in progress, the evidence shows that

Our Mart, Inc. became an instant success. Similar white

businesses lost sales and profits during this period.

On April 4, 1967, Dr. Martin Luther King was mur-

dered in Memphis, Tennessee. The utterly senseless and

tragic killing of this nationally known and respected

black leader had a depressing effect on the black com-

munity of Claiborne County, and was disruptive, to say

the least, of whatever cordial relations remained between

the black and white races. It is difficult for this court

to understand how the white people of Claiborne County,

Mississippi, could be deemed responsible in any sense

for a barbaric murder in Memphis, Tennessee; neverthe-

less, the evidence shows that as a result of this unfortu-

nate event the boycott aginst the white merchants of

Port Gibson and Claiborne County was intensified or

“tightened.”

On April 8, 1967, the Trace Theatre in the business

district of Port Gibson burned. During the summer of

1967, there were several other fires in and near Port

Gibson.

In August, 1967, the regular quadrennial primary elec-

tions were held, with black candidates running for nomi-

nation for public office. In the general elections follow-

ing, several black candidates were successful, including

the defendant Geneva Collins, who was elected Chancery

Clerk of Claiborne County.

Early on the evening of Friday, April 18, 1969, J. L.

Wolf, the white assistant chief of police of Port Gibson,

and Henery McQuein, a black policerran, went to the

26b

home of Roosevelt “Dusty” Jackson, a young black man,

to arrest him on the charge that he had interfered ear-

lier in the day with a police officer who was attempting

to arrest another black person. There were conflicting

accounts of the events that occurred at Jackson’s home.

It was established, however, that some sort of struggle

took place and that Jackson was shot and killed by Wolf.

A large crowd of black people gathered at the Jackson

home. Apparently the crowd was not aware that Jackson

was dead. His body was removed to a local hospital. A

crowd of blacks then gathered at the hospital. When the

crowd learned that Jackson was dead, it dispersed and

later gathered at the First Baptist Church. NAACP

leaders made speeches to the crowd.

As the night wore on, the situation in Port Gibson

became tense. Violence became eminent when a black

person threw an object of some sort at an automobile in

which some white people were riding. At the request

of the sheriff, a detachment of State Highway Patrol

officers was sent to Port Gibson to augment the small

group of law enforcement officers.

Shooting erupted at the church. A black man named

Horace Lightfoot was beaten and had to be hospitalized.

A State Highway Patrolman, Jim Taylor, was shot in

the thigh. Another highway patrolman was hit in the

face by a brick and had to have medical treatment. A

black man named Tullos Brown was shot with a .22

caliber weapon.* When the situation was under contro’,

sheriff’s officers searched the blacks in the church and

found no weapons; however, stashed in the church piano

the officers found five handguns (one .32 caliber pistol

and four .22 caliber pistols), two razors, and some pocket

knives.

4 Officers of the Mississippi State Highway Patrol are armed

with .357 Magnum revolvers. Apparently the bullet that wounded

Brown came from another source during the melee.

27b

On Saturday, April 19, 1969, the NAACP held a

meeting at the church and then marched to the court-

house where Evers again spoke. Evers and other NAACP

leaders called for the discharge of Wolf, McQuein, and

the entire Port Gibson police force. When this demand

was refused by the mayor and aldermen, the NAACP

reimposed the boycott on all white merchants.

The situation was such that the mayor and board of

aldermen put a dawn to dusk curfew into effect.

Aaron Henry, State NAACP President and a Director

of the National NAACP, came to Port Gibson on Sun-

day, April 20, 1969, and spoke to a group of black

people at Addison High School. He then joined local

NAACP leaders in a protest march to the Jackson house.

Henry sent a telegram to the Attorney General of the

United States protesting Jackson’s slaying.

On Monday, April 21, 1969, several hundred black

people gathered at the home of Roosevelt Jackson. Charles

Evers delivered an address from the front porch of the

Jackson house. He called for an intensification of and

a total and complete boycott of all white-owned business

establishments in Claiborne County. The evidence shows

that on this occasion he stated to the crowd: “If we

catch any of you going in any of them racist stores,

we’re gonna break your damn neck.”

In an obvious effort to cause the white merchants to

bring pressure to bear on the mayor and board of alder-

men to discharge Wolf and McQuein and, indeed, the

entire Port Gibson police force, the NAACP intensified

the boycott, together with marching, picketing and in-

flammatory speeches.

It was stipulated by respective counsel for the parties

that defendant Addie Speed is a person non compos

mentis and that defendants Ed Brandon, Ed Coleman,

Jim Jones, Carrence Newsome, Floyd Rollins, Jim Smith,

28b

Lawrence Speed, and Milton Trevillion had all died be-

tween the time of service of process in 1969 and the

start of the trial in this court. They were all dismissed

from the bill of complaint and the cross-bill by agree-

ment. Defendants Maxine Brandon and Henry Hyder

were minors at the time of the attempted service of

process directly on them; by stipulation they were dis-

missed as defendants and cross-complainants. The Rev-

erend Dominic Cangemi was also dismissed as a defend-

ant and cross-complainant by agreement of counsel. De-

fendant James Mallory was dismissed by complainants

when the court ruled that “Mallory” could not be changed

to “Mallett” under the idem sonans rule. Therefore, the

above named defendants will be dismissed as defendants

and cross-complainants.

The evidence shows that the defendant Aaron Henry

individually took no part in the secondary boycott of the

complainants, engaged in no violence or threatening con-

duct toward anyone, joined no conspiracy as an individ-

ual to destroy the businesses of complainants, nor did he

interfere with the businesses of the complainants except

as a member of the board of directors of the defendant

MAP. Therefore, the Court finds that the complainants

failed to meet the burden of proof as to wrongdoing on

the part of the defendant Aaron Henry, individually, and

he will be, accordingly, dismissed as a defendant.

The Court finds that complainants met the burden of

proof and established by an overwhelming preponderance

of the evidence that the defendants set forth hereinbelow

wrongfully combined and colluded in civil conspiracy, en-

gaged in a secondary boycott against complainants, il-

legally created a monopoly, unlawfully interfered with

the business relations of the complainants, and unlaw-

fully conspired to and did destroy and damage the busi-

nesses of complainants, for which they are jointly and

severally liable in damages and penalties:

=

9 2H GX mH HO fo

SRESRESSRARRS:

29b

National Association for the Advancement

Colored People;

Mississippi Action for Progress, Inc. ;

Fred Allen;

Ike Allison ;

Henry Anderson ;

Alonzo Atlas;

Beatrice Atlas;

Calvin Bailey;

James Bailey;

McLawrence Bailey;

. Joseph M. Barber;

Kenneth C. Barber;

Bill Beasley ;

Helen Beasley ;

Calvin Blackburn;

Marjorie W. Brandon;

Eli Brooks;

Priscilla Brooks;

Janie Brown;

Tullos Brown;

Eddie Burrell;

James Burrell;

Robert Butler, Jr.;

Arthur Lee Camphor ;

Irma Rae Camphor;

W. E. Camphor;

Maggie Clark;

Alberta Coleman;

Charles Collier;

James Collier;

Alexander Collins;

Geneva Collins;

Scott Crowder ;

Thelma Crowder;

Dan Currie (a/k/a Dan Curry) ;

Sarah Jane Currie (a/k/a Curry) ;

of

. Charles Davis;

Mack Louis Davis;

Mary Ella Dee;

. James Devoaual;

. Alex Dorsey;

. Sally Dorsey;

. Geneva Durham;

. Johnny Durham;

. Mary Durham;

John Eggleston ;

. Harvey Ellis;

Jim Ellis, Jr.;

. John Ellis;

Katie Ellis;

. Rachael Ellis;

Charles Evers;

. Ethel Graise;

James Gray;

Walter L. Griffin, Sr.;

. Bernard Gusta;

. Leesco Gusta (Guster) ;

Charlie Harris;

Cline Harvey ;

Jim Holt;

Albert Jackson;

Willie Jackson;

E. J. Jennings;

Jesse Johnson;

. Roscoe Johnson;

. Julia Coleman Jones;

. Lela Jones;

. Marcus Jones;

Nathaniel H. Jones;

Samuel Jones, Jr.;

. Bobby Kelly;

Bernice Lee;

. Edward Lee;

31b

Margaret Liggan (Liggins);

Horace Lightfoot;

Teddy Lipscomb;

Clarence Lucas;

Julia Lucas;

Nathaniel Martin;

Leander Monroe;

Johnny Moore;

Mary Lee Moore;

Willie V. Moore;

Ellis Neal;

Bessie Newman;

. D. A. Newman;

. Amos Newsome, Jr.;

James Odem;

Leona Owens;

Roosevelt Owens;

. William Owens;

Henry Patton, Jr.;

Henry Otis Preston;

. Evens Roberson;

Viola Robinson;

. William (Willie) Robinson;

. Mary Ross;

. Odessa Ross;

William M. Matt Ross;

Elmo Scott;

101.

102.

103.

104.

105.

106.

107.

108.

109.

110.

Rudolph Shields;

Oliver Shinall;

Dora Shorter ;

Roman Shorter;

Rosa Shorter ;

Annie B. Smith;

Bilbo Smith;

Deloris Smith;

Leon Tarleton;

Ira Thomas;

32b

111. Carl Thompson, Jr.;

112. Marguerite Thompson;

113. (Rev.) Mack Tisdale;

114. George Henry Walker;

115. Thelma K. Walker;

116. Eddie Walls;

117. Dessie Mae Walls;

118. Alex Warner;

119. Alonzo Warner;

120. Ethel Warner;

121. Albert Weathers;

122. Bome Wells;

123. Carl Lee Wells;

124. Eddie Lee Wells;

125. Katie Wells;

126. James Whitney;

127. Calvin Williams;

128. Ernestine Williams;

129. Aaron Wilson;

130. Gussie Pearl Wilson;

131. (Rev.) Willie Wilson;

132. Early Wren;

133. Ruby Wren;

134. Arthur Wyatt.

There is no issue of fact relative to the boycotting

and picketing directed against the white merchants of

Port Gibson and Claiborne County. The evidence is over-

whelming that the primary dispute and controversy was

between the public officials and the defendants. The

testimony is without contradiction that the white mer-

chants were conscripted in the controversy because the

defendants believed them to be in a position of control

or having the power to exert pressure to compel the

public officials to grant the demands of the defendants.

The only alternative was economic ruin. The overwhelm-

ing majority of the defendants called as adverse wit-

nesses stated wiequivocally that they had no dispute with

33b

any white merchant. The overwhelming majority of the

defense witnesses substantiated that the boycott tactic

was utilized for the purpose of pressuring the white

merchants to use their influence to persuade, or force,

the municipal and county officials to forthwith meet the

demands of the defendants. The evidence is clear that

the defendants engaged in a secondary boycott.

The evidence in the record is clear, and defendants

have asserted in their post trial memorandum addressed

to the court, that because the merchants placed under

boycott were members of the Caucasian race, they were

automatically and conclusively guilty of discrimination

against the defendants and all black citizens of Claiborne

County. Defendants contend that the boycott would have

been avoided if the merchants had discussed the hiring

of blacks. This assertion simply does not square with

the record. Although some of the demands, e.g., Demand

No. 4 in the demand letter of March 23, 1966 (i.e., “All

stores must employ Negro clerks and cashiers”), stand-

ing alone, might avoid the aspects of a secondary boy-

cott, nevertheless the principal thrust of the twenty-one

demands is directed solely to the governing officials, and

it was asserted throughout the trial that the primary

purpose was to force the white merchants to bring pres-

sure to bear on the public officials under threat of eco-

nomic ruin. Those few demands made directly against

the white merchants do not. cleanse the defendants’ ac-

tions of the taint of secondary boycott. Moreover, the

evidence in the record shows that virtually all white

merchants had black employees. But the hiring of black

employees was no guarantee that the boycott would be

lifted. For example, according to the testimony com-

plainants Norman and Barbara Ellis hired a black em-

Including the Chancery Court of Claiborne County. See De-

mand No. 4(B) contained in the demand letter of March 23,

1966, infra. See also Sec. 3374-11, as amended, et seq., Miss.

Code 1942 (Sec. 21-1-29, et seq., MCA 1972).

34b

ployee as a clerk, but despite such action the boycott

was placed on them and continued until they were forced

out of business.

The record reveals that virtually none of the defend-

ants took the trouble to determine whether the individ-

ual complainants employed black persons. Some of the

defendants testified that they expected the complainants

to discharge their white clerks and cashiers and hire

blacks. They said they expected the white merchants to

go so far as to discharge members of their own families

and put blacks in their places as clerks and cashiers.

Virtually every defendant testified that the blacks should

continue the boycott until it was officially taken off by

the NAACP.

It will be noted that at the time of Roosevelt Jack-

son’s death, the boycott had been lifted as to certain

of the white merchants. In his inflammatory speech re-

garding this episode, Evers again imposed the boycott

on all white merchants, regardless of whether or not they

were employing black persons, for the very apparent pur-

pose of forcing the city authorities to fire Wolf and

McQuein. The complainants had absolutely nothing to do

with Jacason’s death, but were threatened with finan-

cial ruin unless the municipal authorities granted the

NAACP’s demand in this connection.

The thread of fear and violence is woven throughout

this case. Sheriff McKay testified that many times black

people who wanted to trade with whites appealed to him

for protection. He said at least 100 blacks complained

to him that they had been interfered with when attempt-

ing to trade with white merchants. He said that when

the “store watchers” relaxed the boycott would “loosen

up,” particularly on the outskirts of Port Gibson and in

Hermanville and Pattison.

Very shortly after the boycott started, Sheriff McKay

was near Hudson’s Store when he noticed a group of

35b

black people gathered around a car parked in front of

the store. McKay approached the crowd and said he

heard the defendant Calvin Williams tell a black man

named Darden that he (Darden) could not go into the

store because it was under boycott. McKay intervened,

whereupon, he said, he heard Calvin Williams say to

Darden: “You can go in, but the sheriff here isn’t going

to sleep with you at night.” Darden did not go into the

white store.

The atmosphere of fear that prevailed among blacks

from 1966 until 1970 is strikingly revealed in the testi-

mony of many of the witnesses.

James Gilmore, a black man, ignored the boycott. On

the night of August 22, 1966, Gilmore’s home was shot

into. Elmo Scott, Jr., a member of the NAACP and of

the “Deacons,” together with two other young black men,

Calvin Bailey and James Whitney, were arrested for

this act and were convicted. The Mississippi Supreme

Court reversed and remanded the case,“ because of ex-

clusion of Negroes from the grand jury. On retrial the

jury was unable to agree. At the time of this trial,

these people had not been arrested.

Defendant Rudolph J. (Rudy) Shields, formerly of

Chicago, was the principal figure in several altercations.

He boasted that he was “the most jailed person in the

Claiborne County boycott.” This man was the acknowl-

edged leader of the “Deacons.”

Laura Cullens testified that she lived about a quarter-

mile from the city limits of Port Gibson on Highway 13.

She refused to join the NAACP, and she ignored the

boycott. Her name, among many others, was called

out at the NAACP meetings, and she was derisively re-

ferred to as an “uncle tom.” She was vilified and abused.

James Bernard Whitney, et al v. State, 205 So. 2d 284 (Miss.

1967).

36b

In November, 1966, shotgun pellets were fired into her

home.

Murriel Cullens, a son of Laura Cullens, did not ob-

serve the boycott and was the target of harrassment by

blacks. Cullens’ car was run into and badly damaged,

and a brick was thrown through the windshield.

In April, 1966, soon after the boycott was started,

Johnny Cox, a black man, and his wife were stopped

by “store watchers” who attempted to prevent Mrs.

Cox from going into the O. K. Cleaners, a white-owned

business, to get some clothing. They had to get police

protection in order to go into this cleaning establish-

ment. About a week later, shotgun blasts were fired

into the Cox home near Hermanville. Pistol shots were

fired at Cox.

James Bailey, a 200-pound ex- football player, testi-

fied regarding his activities as a “store watcher.” He

was instructed to stop any black person he saw about

to enter a white business house. He said that he had

been a “bad boy” and had been convicted for molesting

a child, resulting in sentence to the State Penitentiary.

He was instructed to take the name of any black person

going into a white-owned business, and report same to

defendant Pete Gusta. On one occasion, he stopped Willie

Butler, an elderly black female whom Bailey referred

to as “Nig” Butler, as she was going into the Piggly-

Wiggly store. Despite his warning, she went into the

store and purchased some items of groceries. He watched

her house and saw groceries delivered there by a white-

owned store. He instructed her to stop trading with

whites, whereupon she told him she would trade with

whom she pleased. Bailey went into this elderly woman’s

yard and destroyed her flower garden by way of punish-

ing her.

There is evidence in the record that an elderly black

man called “Preacher” White (deceased at the time of

37

trial) was stripped of his clothing and whipped by a

group of young blacks because he refused .o honor the

boycott.

Eddie Lewis, a black man, refused to join the NAACP

and refused to honor the boycott. He was warned by

Rudolph Shields to stay out of white-owned stores. Lewis

purchased a bottle of whiskey at a white-owned liquor

store, and was observed by Alfred Lee “Fats” Davis, an

NAACP member and activist in the black boycott. Davis

took the whiskey away from Lewis and denounced him

in highly-uncomplimentary language for dealing with

white people.

Willie Myles testified that he refused to stop trading

with white stores. His name was read out at NAACP

meetings as a “boycott breaker.” He said he received

threatening telephone calls. On one occasion, the Port

Gibson police had to give him an escort when a carload

of young blacks began following him. He received a

warning that he was going to be whipped for buying

gasoline at a white-owned service station.

Jasper Coleman, a black man, testified that he did not

join the NAACP and continued to trade with white mer-

chants after being warned by Walter Griffin and Calvin

Bailey. The tires on Coleman’s automobile were slashed.

Emerson Davis, a black commercial fisherman, testified

that he refused to join the boycott. He testified that Ru-

colph Shields, Jimmy Ellis, and three other blacks grabbed

him, carried him down a street and beat him. He was

denounced as an “uncle tom.” He said that he received

threats on his life. James Bailey told him that he was

going to kill him (Davis).

Unquestionably, the word “got around” in Fort Gibson

and Claiborne County that physical harm, as well as vili-

fication and ostracism, could very well be the lot of any

black person observed trading with whites. As a matter

38b

of fact, these things were promised by the Field Secre-

tary of the National NAACP, Charles Evers, on at least

two occasions, and it is apparent that the black people

believed him. This NAACP-sponsored boycott was a defi-

nite success insofar as economic damage to the white mer-

chants was concerned, even though the victims—the white

merchants—had no power to grant the demands made on

the county and municipal authorities.

The testimony revealed that the defendant NAACP

provided attorneys to defend black persons arrested and

charged with violating the laws of Mississippi in connec-

tion with acts arising from the boycott; and this non-

resident corporation posted bail bonds and on occasion

paid fines of black persons convicted of criminal charges.

APPLICATION OF THE LAW

Facts are set forth hereinabove which establish that on

April 1, 1966, the NAACP and certain individuals, all of

whom are members of the black race, entered into an

agreement to withdraw and withhold their trade, and to

induce all other members of the black race in Claiborne

County to withdraw and withhold their trade, from the

complainants, who are white individuals or corporations

owned by white persons. The facts are beyond dispute

that the purpose of the agreement was to interfere mas-

sively with the businesses of complainants and other white

merchants of Claiborne County. Economic coercion by

way of interjacence was the objective. These coercive ef-

forts were designed and calculated to conscript the aid of

the white merchants of Claiborne County by way of com-

pelling them to influence, persuade, or force the public

officials of Fort Gibson and Claiborne County to accede

to the demands of the NAACP.

It is beyond dispute that the defendant MAP agreed to,

and did, join with the NAACP and certain of the individ-

ual defendants in their plan of massive interference with

39b

the businesses of complainants. Thereafter the officers and

employees of MAP actively assisted the NAACP in carry-

ing out the scheme of withholding business from all white

merchants in Claiborne County.’

In carrying out the agreement and design, certain of

the defendants, acting for all others, engaged in acts of

physical force and violence against the persons and prop-

erty of certain customers and prospective customers. In-

timidation, threats, social ostracism, vilification, and tra-

duction were some of the devices used by the defendants

to achieve the desired results. Most effective, also, was

the stationing of guards (“enforcers,” “deacons,” or “black

hats”) in the vicinity of white-owned businesses. Un-

questionably, the evidence shows that the volition of many

black persons was overcome out of sheer fear, and they

were forced and compelled against their personal wills to

withhold their trade and business intercourse from the

complainants.

The evidence in this record shows that no defendant

had any direct or primary dispute or controversy with

any complainant or other white merchant of Claiborne

County, except perhaps a few of the defendant witnesses

who said they simply did not like white people generally.

The evidence in the record clearly establishes that the

defendants by their acts interfered with the right of each

of the complainants to pursue a lawful business. The evi-

dence also clearly establishes that the defendants com-

bined to commit, and certain defendants acting for all

did commit, overt acts which were injurious to the trade

and business of the complainants; and by such acts the

The evidence clearly established that the Head Start Centers

in Claiborne County were directed to trade exclusively with certain

black-owned stores in the county; except in the event any needed

items were unavailable at those stores, they were under orders to

leave Claiborne County to make such purchases so as to com-

pletely avoid trading with white merchants in Claiborne County.

40b

defendants hindered the sale and purchase of commodi-

ties in Claiborne County in violation of the laws of the

State of Mississippi.

The evidence in the record clearly establishes that de-

fendants engaged in a conspiracy.

A criminal or a civil conspiracy is a combination of

two or more persons by some concerted action to accom-

plish some criminal or unlawful purpose, or to accomplish

some purpose not in itself unlawful by criminal or un-

lawful means. 16 Am. Jur. 2d, Conspiracy, Sec. 43, p.

149. Our Court has defined a conspiracy as “a combina-

tion of persons to accomplish an unlawful purpose or a

lawful purpose unlawfully.” Mississippi Power & Light

Company v. Town of Coldwater, 234 Miss. 615, 636, 106

So. 2d 375, 381 (1958); Southern Christian Leadership

Conference, Inc., et al. v. A. G. Corporation, 241 So. 2d

619, 623 (Miss. 1970).

The difference between civil conspiracy and criminal

conspiracy is that in criminal conspiracy the agreement

or conspiracy is the gravamen of the offense, but in civil

actions the conspiracy is not the gravamen of the charge,

but the gravamen of the tort is the damage resulting to

the complainant from any overt act done pursuant to the

common design. 15A C.J.S., Conspiracy, Sec. 1 (1), pp.

596-598. The primary purpose of a civil conspiracy must

be to cause injury to another. In a civil action the con-

spiratorial agreement need not be in any particular form,

and need not extend to all the details of the conspiratorial

scheme. In general, the essential elements required to

establish a civil conspiracy are that there must be: (1)

two or more persons, «nd for this purpose a corporation

is a person; (2) an object to be accomplished; (3) a

meeting of minds on the object or course of action; (4)

one or more unlawful overt acts; and (5) damages as the

proximate result thereof. Jd. Sec. 1 (2), p. 599.

41b

Under the laws of Mississippi, it is an unlawful con-

spiracy if two or more persons conspire to prevent an-

other from exercising a lawful trade or calling, or doing

any other lawful act, by force, threats, or intimidation;

to interfere or threaten to interfere with the property

belonging to or used by another, or with the use or em-

ployment thereof; to permit any act injurious to public

morals, trade or commerce; to violate the laws of this

state through force, violence, threats, intimidation, or

otherwise; or to accomplish any unlawful purpose, or a

lawful purpose by unlawful means. Section 97-1-1, MCA

1972.

The law permits great latitude in the admission of

circumstantial evidence tending to establish a conspiracy,

and to connect those advising, encouraging, aiding, abet-

ting, and ratifying the overt acts committed for the pur-

pose of carrying into effect the object of the conspiracy.

This court, as the trier of fact, must consider every fact

in issue which will enable it to arrive at a satisfactory

conclusion. Wagley v. Colonial Baking Company, et al.,

208 Miss. 815, 45 So. 2d 717, 725 (1950); Southern

Christian Leadership Conference, Inc., et al. v. A. G. Cor-

poration (cited supra; see 241 So. 2d at page 625).

Where two or more persons conspire together, the con-

spiracy makes the wrongful act of each person the joint

acts of them all. Southern Bus Lines, Inc. v. Amalga-

mated Association of Street, Electrical, Railway and Mo-

tor Coach Employees, et al., 205 Miss. 354, 38 So. 2d 765,

769 (1949) ; State ex rel Rice v. Hasson Grocery Co., 177

Miss. 204, 170 So. 234 (1936); Globe & Rutgers Fire

Insurance Co. v. Firemen’s Fund Insurance Co., et al.,

97 Miss. 148, 52 So. 454 (1910). It follows that each act

done in pursuance of the conspiracy by one of several

conspirators is, in contemplation of the law, an act for

which each is jointly and severally liable. This joint and

several liability of a conspirator applies to damages ac-

42b

eruing prior to his joining the conspiracy as well as dam-

ages thereafter resulting, regardless of whether he took

a prominent or an inconspicuous part in the execution of

the conspiracy. This liability of each member of a con-

spiracy for the damage resulting therefrom, exists whether

or not the conspirator profited from the result of the con-

spiracy. 16 Am. Jur. 2d, Conspiracy, Section 48, pp. 151-

152.

The malicious * interference by the defendants with the

businesses of the complainants as shown by the evidence

in this case is tortious per se, and this would be true

even without the element of conspiracy. Memphis Steam

Laundry-Cleaners, Inc. v. Lindsey, 192 Miss. 224, 5 So.

2d 227, 232 (1941). The motives and malice of Charles

Evers, the Field Secretary of the NAACP in Mississippi,

together with the plenipotentiary authority accorded the

Mississippi contingents of that New York Corporation

while they were engaged in carrying out the efforts of

attempting to destroy the businesses of complainants,

were the motives and malice of the NAACP itself.“ The

national NAACP was well-advised of Evers’ actions, and

it had the option of repudiating his acts or ratifying

them. It never repudiated those acts, and therefore, it

This term is used here in the legal sense, and not necessarily

in the ordinary sense. Malice in law has been defined as the

intentional performance of an act harmful to another without just

or lawful cause or excuse. Brown v. Guaranty Estates Corp., 239

N.C. 595, 80 S.E. 2d 645, 40 A.L.R. 2d 1094.

Aaron E. Henry, a prominant black leader in the State of

Mississippi, who was president of the Mississippi State Confer-

ence of the NAACP, president of the Coahoma County Branch

of the NAACP, and a member of the Board of Directors of the

national NAACP, testified that the NAACP “absolutely did not

approve of the way the boycott was being conducted in Port

Gibson.” There is also evidence in the record tending to show that

Evers was called to account by the national NAACP because of the

manner in which the boycott was conducted. However, the NAACP

took no action whatever to curb Evers’ activities in this connection.

43b

is deemed by this Court to have affirmed them. A case on

all fours with this proposition is National Association

For the Advancement of Colored People, et al. v. Haldred

Overstreet, 384 U.S. 118, 86 S. Ct. 1306, 16 L. Ed. 2d

409, reh den 384 U.S. 981, 86 S. Ct. 1857, 16 L. Ed. 692

(1966), quod vide.

In 16 Am. Jur. 2d, Conspiracy, Section 47, p. 151, the

general rule is stated that (A) Corporation may be

liable for damage to a third person resulting from a

conspiracy among its directors or stockholders or a con-

spiracy of its agents with other persons or corporations.

It is held, though, that a corporation cannot be a party

to a conspiracy consisting of the corporation and the

persons engaged in the management, direction, and con-

trol of the corporate affairs, where the individuals are

acting only for the corporation and not for any personal

purpose of their own . . .” Under this rule, the question

has been raised as to whether or not Charles Evers, as

an individual, could be deemed a conspirator, since, it is

argued, he was acting only for the NAACP in instigat-

ing the boycott. In answering this question, this Court

is of the opinion that clear and decidedly strong evidence

shows that Evers acted not only for the NAACP but

also for personal purposes of his own. But, arguendo,

let it be supposed that at the time the boycott was com-

menced he (Evers) was, in fact, acting solely as an

agent of the NAACP. The record shows that under ad-

verse examination by counsel for complainants, Evers

testified that he terminated his relation as Field Secre-

tary of the NAACP in February or March, 1969. Never-

theless, the record clearly reveals that for quite some

time after he terminated his position as Field Secretary

of the NAACP, he was still very intensely engaged in

the boycott against the white merchants of Claiborne

County and Port Gibson, in his individual capacity. In

fact, it was on Monday, April 21, 1969, that he called

for an intensification of and a total and complete boycott

44b

of all white-owned business establishments in Claiborne

County, and warned a large audience of black people:

“If we catch any of you going in any of them racist

stores, we’re gonna break your damn neck.”

As to all of the other individual defendants named

above, it is the opinion of the Court that they had no

voice whatever in the management, direction, or control

of the national NAACP, nor were they in any sense

agents of that New York corporation. They were acting

for personal purposes of their own, even though they

may have been members of the local Claiborne NAACP.

They, along with Evers as an individual, and along with

MAP, were engaged in a conspiracy with the NAACP,

and among themselves, to subject the white merchants

of Port Gibson and Claiborne County to an illegal boy-

cott.

SECONDARY BOYCOTT

The uncontradicted evidence introduced into the record

established that defendants conducted a secondary boy-

cott against complainants and other white merchants of

Port Gibson and Claiborne County.

The Mississippi law recognizes two classes of boycotts,

i. e., (1) primary and (2) secondary. Southern Chris-

tian Leadership Conference v. A. G. Corporation, supra

(which will be referred to hereinafter as the SCLC

Case). A primary boycott is a combination of two or

more persons by concerted action to cease dealing either

socially or in a business way with a person with whom

the combination has a direct dispute. A secondary boy-

cott is a combination, not merely to refrain from dealing

with such person or to advise or by peaceful means per-

suade his customers to refrain, but to exercise coercive

pressure upon such customers, actual or prospective, in

order to cause them to withdraw or withhold their pa-

tronage through fear of loss or damage to themselves.

45b

Those acting in concert to bring about a secondary boy-

cott are also engaged in a conspiracy. 15 A C. J. S., Con-

spiracy, Section 12, p. 631.

A common law primary boycott is a boycott applied

directly and alone to the offending party by withdrawing

from him all social and business relations on the part of

the party initiating the boycott. Booker Kinnaird v.

Louisville Board of Fire Underwriters, 188 Ky. 771, 224

S. W. 451, 21 A.L.R. 531.

A secondary boycott occurs when a combination directs

pressure upon a neutral party to induce or coerce the

neutral party to take action against, or cease doing busi-

ness with, the person with whom the combination has a

dispute. The gravamen of the secondary boycott is that

its sanctions press not upon the person with whom the

combination has the primary dispute, bué upon some

third party who has no concern with the controversy.

National Woodworkers Manufacturing Association v.

NLRB, 386 U. S. 612, 87 S. Ct. 1250, 18 L. Ed. 2d 357

(1967); Local 761, International Union of Electrical,

Radio and Machine Workers, AFL-CIO, v. NLRB, 366

U. S. 667, 81 S. Ct. 1285, 6 L. Ed. 2d 592 (1961); In-

ternational Brotherhood of Electrical Workers, Local 501,

et al. v. NLRB, 181 F 2d 34 (1950).

In order to protect unoffending, or neutral, parties

from pressures in controversies not their own, the Mis-

sissippi Legislature enacted Section 97-23-85, MCA

1972. The intent of this statute is to prohibit action

10 Section 97-23-85. If two (2) or more persons conspire to

prevent another person or other persons from trading or doing

business with any merchant or other business and as a result of

said conspiracy said persons induce or encourage any individual

or individuals to cease doing business with any merchant or other

person, and when such conspiracy is formed and effectuated be-

cause of a reasonable grievance of the conspirators over which the

said merchant or place of business boycotted or against which a

boycott is attempted has no direct control or no legal authority to

46b

which is calculated to enlist the aid in a controversy of

a person who is himself not engaged in the dispute. It

has the effect of confining the action to the sphere of

communication directly related to the dispute and ban-

ning any action which could be utilized to conscript, in

a given struggle or controversy, a person who is not him-

self a party thereto.

Defendants contend that Section 97-23-85 is unconsti-

tutional under the First and Fourteenth Amendments of

the United States Constitution. This contention is with-

out merit, for the reason that conduct and communica-

tion which are illegal are not protected by the constitu-

tional provisions relating to freedom of speech. Giboney

v. Empire Storage and Ice Co., 336 U. S. 490, 69 S. Ct.

684, 93 L. Ed. 834 (1949). If the basic premise that

secondary boycotts are unlawful under both United

States and Mississippi law can be upheld, as it has been,

then the provisions of Section 97-23-85 making activities

of parties in furtherance of such boycotts illegal will not

be invalid because freedom of speech and expression are

thereby restricted. NLRB v. Wine L & D Union, (CA2,

1949) 584 F. 2d 584, 16 ALR 2d 762, 767-769 *.

correct, or when the conspiracy results from such alleged grievance

against the merchant or other person boycotted when no notice

of such grievance has been given the merchant or party boycotted

and no reasonable opportunity to correct such alleged grievance

has been given such merchant or other person against whom the

conspiracy was formed, then each of such persons shall be guilty

of the crime of unlawful restraint of trade and shall be fined

not more than one thousand dollars ($1,000.00) or imprisoned for

not more than two (2) years and in addition each such person

shall be liable in civil action for any damages suffered by said

merchant or place of business so wrongfully boycotted and also for

attorney fees incurred by said merchant or person boycotted in a

civil action to recover damages.

1 Annotation 16 ALR 2d 769: Constitutionality and Construc-

tion of provision of Labor Management Relations Act (Taft-

Hartley) making it unfair labor practice for labor organization

to engage in secondary boycott.

47b

Section 97-23-85 also takes into its purview the illegal-

ity of a primary boycott under the following circum-

stances:

“

*

. . or when the conspiracy reswis from such al-

leged grievance against the merchant or other person

boycotted when no notice of such grievance has been

given the merchant or party boycotted and no rea-

sonable opportunity to correct such alleged grievance

has been given such merchant or other person against

whom the conspiracy was formed. (Emphasis

added. )

This statutory language does not prevent articulation,

conduct or communication growing out of a grievance,

nor does it proscribe a primary boycott. It simply states

that such a merchant or other party must have notice

of the thing or circumstance giving rise to the grievance,

so as to afford him the opportunity of escaping the dire

and ruinous effects of a boycott through correcting the

cause of the grievance. It is simple Hornbook law that

a person has the right to pursue any valid calling, voca-

tion or business without unreasonable hindrance. These

things are property rights, and they also have the pro-

tective cloak of the Constitution placed around them. If

the grievance is valid, and the merchant or other person

does nothing by way of correction, then the statute in

no sense bans a primary boycott.

In the SCLC Case, the Court found that the Appel-

lants were, in fact, conducting a secondary boycott, since

the appellee was. . . in effect an innocent bystander

who ultimately became the innocent victim of this strug-

gle for political and economic power.. (See 241 So.

2d at page 624). But the appellants (defendants in the

lower court) contended that they were also conducting a

primary boycott, and that this somehow erased the prin-

cipal purpose of the boycott and bestowed upon them a

respectable aura of legality, just as the defendants in

48b

the case sub judice have contended. In SCLC the defend-

ants argued that they were only exercising rights vouch-

safed them by the First and Fourteenth Amendments,

just as the defendants in the case at bar have done. In

SCLC, one of the assignments of error was (241 So. 2d

at page 624) :

“The Court erred in holding that defendants had

acted in concert against complainant for an unlaw-

ful purpose because:

“a) Defendants’ right to boycott complainant for

the purpose of protesting its racially discriminatory

employment practices and other discriminatory treat-

ment of Negroes is protected by the First and Four-

teenth Amendments to the United States Constitu-

tion ;”

In response to this assignment of error, the Court said:

But the truth of the matter was that no complaint

of any kind, oral or written, was ever made by any

of these defendants or by any employee or any cus-

tomer to the appellee, its officers or agents.” (Em-

phasis supplied.)

In so saying, the Court upheld the premise that a griev-

ance or demand must be made known to the person

against whom a primary boycott is directed before such

person’s constitutionally vouchsafed property rights can

be invaded by such a boycott. This is precisely the statu-

tory rule that is laid down in Section 97-23-85 in this

regard. This rule does not violate the right of primary

boycott, and therefore is not violative of the First and

Fourteenth Amendments. Rather, it upholds the right

to legally engage in a primary boycott, but at the same

time it protects the rights of the target of an intended

boycott. In short, it does not prohibit freedom of speech,

and at the same time it protects the property rights of

the person against whom the proposed boycott is aimed

49b

by affording him the opportunity of correcting the cir-

cumstances giving rise to the grievance so as to avoid

the economically ruinous effects of a boycott.

As has been mentioned above, the defendants take the

position that since two of their demands (i. e., No. 7 in

the letter of March 14, 1966, and No. 4 in the letter of

March 23, 1966 ) arose from grievances they had

against the white-owned businesses, the boycott lost its

“secondary” nature and became “primary.” The Court,

of necessity, resorted to cases involving labor disputes

to ascertain the rule in this regard.

In International Brotherhood of Electrical Workers,

Local 480, AFL-CIO v. National Labor Relations Board

(CA DC, 1969), 413 F. 2d 1085, the question to be

resolved was whether the union was engaging in a

“primary activity” or a “secondary activity,” since cer-

tain aspects of both procedures were present. The Court

held that the N.L.R.B. had the duty in such cases of

determining the true objective, and in so holding said

(413 F. 2d at page 1089) :

“It has been well recognized that the prohibitions

of Section 8 (b) (4) (i) and (ii) (B) u cannot be in-

terpreted literally; what is rather called for is fine

line-drawing between primary and secondary ac-

tivity. General Electric, supra “. Further, (i) mpor-

tant as is the distinction between legitimate ‘pri-

mary activity’ and banned ‘secondary activity,’ it

12 These demand letters are copied in full hereinabove, q.v. It will

be noted that these letters were not addressed to any of the com-

plainants or any other white merchants of Claiborne County.

18 National Labor Relations Act, Section 8 (b) (4) (i, ii) (B) as

amended 29 U.S. C. A. 158 (b) (4) (i, ii) (B).

1 This refers to Local 761, International Union of Electrical

Workers v. N. L. R. B., 366 U.S. 667, 677, 81 S. Ct. 1285, 6 L. Ed. 2d

592 (1961).

50b

does not present a glaringly bright line.’ Id., 366

U.S. at 673, 81 S. Ct. at 1289. The Supreme Court,

and this court, have made clear that the key factor

is the objective of the union activity, whether it is

aimed at the primary employer or whether it is also

aimed at pressuring the secondary employer. . .”

(Emphasis added.)

“Although the union picketing appeared to square

with the Moore Drydock requirements, the Board

was correct in finding from external evidence that

the picketing had the unlawful secondary object of

coercing neutral employers ...” (Emphasis added.)

See also Gulf Coast Building & Supply Company, Inc. v.

International Brotherhood of Electrical Workers, Local

No. 480, AFL-CIO, (CA5, 1970), 428 F. 2d 121, wherein

the Court discussed the rule relative to the distinction

between a legitimate primary object and an illegal

secondary boycott in these words (423 F. 2d at page

124):

“If Local 480’s sole object was to force Gulf Elec-

tric to pay area standards and its actions were not

intended to pressure neutral employers such as Gulf

Coast to cease doing business with Gulf Electric

and were reasonably limited to accomplish its pri-

mary object, then Local 480’s actions did not con-

stitute a secondary boycott. If, however, Local 480

did have the purpose of forcing Gulf Coast to sever

its ties with Gulf Electric, and its picketing was

designed to accomplish that purpose, its actions

amounted to a secondary boycott in violation of (the)

15 Sailors Union of the Pacific (Moore Drydock), 92 N.L.R.B.

547 (1950). In Moore Drydock the Board set out four standards

for picketing in (common situs) situations which would be pre-

sumptive valid primary activity.

51b

National Labor Relations Act . . .” (Emphasis

added. )

The testimony in the case at bar clearly shows that

the principal objective of the boycott was to force the

white merchants of Port Gibson and Claiborne County

to bring pressure upon governing authorities to grant

defendants’ demands or, in the alternative, to suffer eco-

nomic ruin. The two grievances aimed directly at the

complaints“ notwithstanding, the key factor in making

this determination is the objective of the boycott. In

applying the criteria employed by the United States

Courts of Appeals for the Fifth Circuit and for the

District of Columbia, supra, and, indeed, by the United

States Supreme Court, this Court must conclude that

defendants were carrying out an illegal secondary boy-

cott.

Aside from what has been found and set out above,

the Court is of the opinion that perhaps the most im-

portant aspect of this case in making a determination

of whether the boycott was legal or illegal concerns

the employment of tactics designed to keep the black

people of Claiborne County out of the white-owned busi-

nesses through the use of threats, intimidation, abusive

language, ridicule, coercion and, in some cases, outright

violence. There is no need to reiterate these incidents

16 There is no evidence in the record clearly establishing that

the defendants made any demands whatever directly on complain-

ants in this regard. The letters were not addressed to any of the

complainants, and except possibly through general rumors through-

out the community and newspaper articles in this connection, they

were never placed on notice. Moreover, the record shows that

several of the complainants were kept under boycott even after

they employed blacks in their businesses. After the Roosevelt

Jackson incident, the boycott was imposed on all white merchants

to force them to cause the governing authorities to discharge

Wolf and McQuein, regardless of whether they employed black

people.

52b

here. Suffice it to say that the means used in this con-

nection were highly successful and, unquestionably,

brought about the ends that defendants set about to

achieve. Fear and apprehension were powerful deterrents.

In the SCLC Case, Justice Robertson, speaking for the

Court, very aptly said (241 So. 2d at page 625) :

“‘When any individual or organization under

whatsoever name attempts to use force to gain his or

her ends, they are attempting to usurp a govern-

mental function. When a picket line becomes a

picket fence, it is time for the government to act.

Carnegie-Illinois Steel Corporation v. United Steel-

workers of America, 353 Pa. 420, 45 A. 2d 857.’

(Southern Bus Lines, Inc. v. Amalgamated Ass’n.,

ete.), 205 Miss. at 374 and 376, 38 So. 2d at 768

and 769.

“The Fourteenth Amendment to the United States

Constitution, among other things, specifically pro-

vides: nor shall any State deprive any per-

son of life, liberty, or property, without due process

of law * *

“Surely this prohibition should apply with equal

or greater force to private persons or organizations.

“In condemning a conspiracy of private persons to

destroy the business and livelihood of another, we

said, in Southern Bus Lines, Inc., supra:

Private persons cannot conspire to illegally

destroy the business of another, and where two

or more persons conspire together, the conspiracy

makes the wrongful acts of each the joint acts

of all of them. Globe & Rutgers Fire Ins. Co. v.

Firemen’s Fund Ins. Co. et al., 97 Miss. 148,

52 So. 454, 29 L.R.A., N.S., 869; State ex rel.

Rice v. Hasson Grocery Co., 177 Miss. 204, 170

53b

So. 234, 107 A.L.R. 663.’ 205 Miss. at 375, 38

So. 2d at 769.”

Accordingly, since an illegal boycott is an invasion of

a property right, the members of the boycotting combina-

tion are liable for the resulting damages. This was an

unlawful boycott. The fact that the claimed ultimate pur-

pose of the boycott was to advance the interests of the

combination does not cleanse it of its unlawful character.

The direct and overriding purpose was to injure and de-

stroy the businesses of the complainants; and the fact

that it is contended that the boycott was designed as a

means to an end, and the end in itself might be consid-

ered lawful, does not render the boycott in this case

lawful.

RESTRAINT OF TRADE

The evidence in the record reveals that the defendants

sought to restrain and eliminate all trade between the

white merchants in Claiborne County and their black cus-

tomers, and to direct black trade to black stores in the

county or, in the alternative, to merchants out of Clai-

borne County.“ The combination forged by the defend-

ants unreasonably limited competition between the black

merchants and the white merchants of the county, which

had theretofore traditionally existed. The suppression of

the competition between black and white merchants nec-

essarily restrained commerce.

The purpose of this state’s restraint of trade laws is

to secure equality of opportunity. This purpose was

thwarted when the group power of the NAACP, MAP

and the individual defendants was utilized to eliminate

the white merchants as competitors of the black mer-

17This was specifically required by MAP in cases where the

necessary commodities for its Head Start units could not be ob-

tained from black-owned stores in Claiborne County.

54b

chants. In order to establish a violation of Mississippi

law, it is not necessary for complainants to show that

the com’) nation arranged by defendants suppressed all

competition between black and white merchants. The in-

terest of the public in the preservation of competition is

the primary consideration.

As a legal principle, it is sufficient to show that the

concert of action on the part of the defendants was de-

liberately invited, and that the defendants gave their

adherence to the scheme and participated in it. Retail

Lumber Dealers Association v. State ex rel. Attorney

General, 95 Miss. 337, 48 So. 1021, 1023 (1909) ; Stand-

ard Oil Co. of Ky. v. State ex rel. Attorney General, 104

Miss. 886, 61 So. 981 (1913) ; Grenada Lumber Co. et al.

v. State ex rel. Attorney General, 98 Miss. 536, 54 So. 8

(1911).

Section 75-21-1, et seq., MCA 1972, declares that com-

binations or agreements between two or more persons,

corporations or associations, the effect of which is to

create or attempt to create monopolies or restraints of

trade and commerce in the State, are inimical to the pub-

lic welfare and are unlawful.

As has been stated hereinabove, the defendants con-

spired to, and did, engage in an unlawful boycott of com-

plainants’ businesses. It follows that the combination of

the defendants and the agreements and understandings

between the NAACP, MAP and the individua! defend-

ants, as revealed in the record in this case, are within

the express prohibitions of the Mississippi statutes re-

lating to restraints of trade. Under the laws of this

state, any private person or corporation may sue for

damages of every kind growing out of such restraints of

55b

trade, and in addition may recover a penalty of 8500.00

in each instance of injury.“

The NAACP, a nonresident corporation, was a party

to the combination, agreement and understanding of de-

fendants. The NAACP was a party to the unlawful boy-

cott. Under the laws of Mississippi relative to attach-

ments in chancery, the funds of the NAACP in the hands

of attachment defendants within this state are subject

to attachment.“

After a careful consideration of the constitutional

claims of defendants, the Court finds that none of the

acts or conduct of defendants was shielded or protected

18 Section 75-21-9, MCA 1972:

“Private persons and corporations may sue.

Any person, natural or artificial, injured or damaged by a

trust and combine as herein defined, or by its effects direct or

indirect, may recover all damages of every kind sustained by

him or it and in addition a penalty of five hundred dollars

($500.00), by suit in any court of competent jurisdiction. Said

suit may be brought against one or more of the parties to the

trust or combine and one or more of the officers and representa-

tives of any corporation a party to the same, or one or more of

either. Such penalty may be recovered in each instance of

injury. All recoveries herein provided for may be sued for

in one suit.”

19 Section 11-31-1, MCA 1972:

“The chancery court shall have jurisdiction of attachment

suits based upon demands founded upon any indebtedness,

whether the same be legal or equitable, or for the recovery of

damages for the breach of any contract, express or implied, or

arising ex delicto against any nonresident, absent or abscond-

ing debtor, who has lands and tenements within this state,

or against any such debtor and persons in this state who have

in their hands effects of, or are indebted to, such nonresident,

absent or absconding debtor. The court shall give a decree

in personam against such nonresident, absent or absconding

debtor if summons has been personally served upon him, or

if he has entered an appearance.”

56b

by the Constitution of the United States or the Consti-

tution of the State of Mississippi.

Moreover, the Court finds that Sections 11-31-1 through

11-31-11, MCA 1972 (attachments in chancery), Sections

75-21-1 through 75-21-39, MCA 1972 (trusts and com-

bines in restraint or hindrance of trade), and Section

97-23-85 (unlawful restraint of trade—boycott) are all

constitutional as written and as applied in this case.

The Court finds that, as a matter of law, the defend-

ants were not entitled to a jury trial in the chancery

court. This is a court of equity; this suit came within

the exclusive jurisdiction of this court through the in-

junctive process and through the complainants’ prayer

for an attachment in chancery. It was incumbent upon

this court to hear the case in full once jurisdiction was

assumed. To have heard the portions of tiis matter

sounding in equity, only, and to have transferred the

questions of tort liability and damages to the circuit

court would have been contrary to the maxim “equity

delights to do complete justice, and not by halves.” Al-

though this court has the power to empanel

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