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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 958

## Text

| 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-
i

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_2119%3A02. Public record. Not legal advice.