# Opposition Brief — Adickes v. S. H. Kress & Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0192%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1970 - **Citation:** 398 U.S. 144 ## Text 4 tes : —— ; ) -~ i i é ai AS : 7 e # ts ® = ; . E —_ x y LIBRARY ° DS ee ae VE =!)PREME COURT. U. & 3 .. fe APR 22 1989 JOHN Fe DAViS, CLES IN THE _ Supreme Court’ of the ited States , October Term, 4 /7¢ 7 oon 79 SANDRA ADICKES; — ae | } ' Petitioner, agamst —— & . S. H. KRESS ann COMPANY, .. — | SE ey peal 7 Respondent. RESPONDENT’S BRIEF IN OPPOSITION TO — PETITION FOR WRIT OF CERTIORARI TO .. THE UNITED STATES COURT OF APPEALS ° | FOR THE SECOND CIRCUIT Sanvorp M. Lrrvack, ge 2 Wall Street, 7 New York, N. Y. 10005, 7 Attorney for Respondent, © S. H. Kress and Company. . ; Jamzs R. Wirurow, Jr., : v AuFrep H. Hoporxort, in,, . .- ~ * Rosgrt L. Smpson, Jr., Donovan LersurE Newron & Inveng, . - Of Counsel . - we “" aia! 2d 591 (2d Cir. > Meerrrrrs rect S ie CAT acavevnaetisnua kee ee 19 : i First Nat. Bank v. Cities 4 Service Co., 391 U. 8. 253 C988) Sans Mase sateen cence erence eeeeceeees 10 Globe Cavett Mills v. Scrivener, 240 F. 2d 330° (10th CEE cis canvcuvcioan ses encbanseceecn 19 Gordon v. Illinois Bell Telephone Co., 330 F. 2d 103 ° tel .(7th Cir. )s cert. denied, 379 U. S. 909 (1964) . 16 Shenction v. Murda. 205 F. Supp. 449 (D. Del. 1962) 14 \ Heart of Atlanta. Motel, Inc. v. United. States, 379 \ ae | PR area Sucre mug wee a wt Hoeppner Const. Co. v. United States, 287 ¥. 2d. 108 (10th Cir. 1960) ........ bags teas OCR aks 4 a ee Hunter-Wilson Distilling Co. v. Foust ‘Distilling Cb, ee 84 F. Supp. 996 (MD. Pa. _ egttegeees 16 Seti City of’v. Wallace, 189 Miss. 252, 196 ‘So. | Se!) en eee ne: Senne er = Jahn v. Pedrick, 229 F.2d 71 (24 Cir. 1956) ....... °19 Katzenbach v. McClung, 379 U. 8. 294: (1964) ...:.. ' 212 Ma ¢ P PAGE ‘ Layne & Bowler- pais v. Western Well Works, Inc., 261 U. S. 387 (1923) can ieey fete seees ek w athe - 20 - Mahoney ©. N. Y. Cent. R. B., 234 F. (2d. 923 (2d Cir. a Seen Seca nN Se ea ian ae 19 ° Morgan v. Sylvester, .125 F. Supp. 380 (S. D. N. Y. 1954), aff'd 220 F. 2d 758 (2d Cir.), cert. denied, | 800 U.S. shh com ee ae 89° _ Nance v. Mayflower. Tavern, Inc., 106 Utah 517, 150. P. 2d 773 (1944) .......... ee ca aces 13 New York Times Co. v. Pe, 376 U. S. 254 CE) aes sere scons a ee ac, 12 "Orchard v. ~~ Co., [1898] 2 Q. B. es. 13 Parkway Baking Co. v. | Frethofer Baking Co, 255 F. 2d 641 (3d Cir. 1958) ......... REE hs 08 tikes a Reitman v. * Mulkey, 387 U. S. 369 (1967) '.....%. oo 15 | Rice v. Sioux City Cemetery, 349 U. 8. 70 (1955) ... > 20- Robin Const. Co. v. United States, 345 Fe2d 610 sa es ee ruin ick eciss oe R. v. Rymer [1877] 2 Q.B. 136 - Fe plea Keee a whew ede é 13 "+ Schneider v. McKesson & Robbins, tee: 254. F. 2d OO CO I iiss va i kaanes ccaveassss a Scolnick v. Lefkowitz, 329 F. 2d 716 (2d Cir. ), cert. denied, 379 U. S. 825 a RS I 5 na i 5 ‘Taggart v. Vermont Transp. Co. > 82: F.R.D. 587 (E. D. Pa. 1963), aff’d per curiam, 325 E. 2d ee ee es oes 5a Thompson v. ( Yalmar S. S. Corp: 331 F. 2d 657 (83d Cir.), cert. denied 379 U. 8. 913 (1964) ........ - 18,19 e _iv "INDEX a PAGE Thompgon v. Lacy, 3 B. & Ald. 283 (K.'B. 1820) .... 18 United States y. Classic, 313 U. S. 299 (1941) ...... 3fn Ulteen v. PAC B. 92 «1.0 e eee eee eee dé Western Union Telegraph Co. v. asdnen: 166 Miss sae 782, 146 So. 128 (1933) ..... Eh See 14 | Williams v. Howard Johnson's Inc. 323 F. 2d 102 (4th Cir. ivi PP eOee Meester beeeeeeeeees pe Statutes and Rules Cited os * California Constitution, Article I, §26 ........1... 14,15 Civil Rights Act of 1871, Ch. 22, 61, 17 Stat 13, 2 Ge! ere 2, 4, 11, 12, 17 Civil Rights Act of 1875, Ch. 114, 18 Stat. 335 . 10 Civil Rights Act of 1964, 78 Stat. | 241,. 42, U. 5. C. ; i 7 ce eiotekenKs Cie wal Miditadnc Code, Section 2046. “s St fe Bee Le seeees 13, 15 Mississippi Code, Section 2056 (7) | —ererree ; Eee 12fn Mississippi Cody, Section 4065.3 ..... an + .t. 12fn Rule 13(b)(1) and 16(a-b), Calendar Rules of. the United States District. Court. for the Southern pS > EE ee ee 17,19 Rale 19, Rules of the U. 8. Supreme ‘Court Sete sins 1 Rule 56, Féderal Rules of Civil. Pisibirs Tees oP 3 duds Congarrent Resolution No. 125 ensoted T956 12fn * e Y ES a . INDEX : ° v > Authorities Cited c "3 Blackstone, Commentaries 164 ¢Lewis ed. 1902) at- 166 Pr orer Pe ty POP eee Pree Ee PTT epee eee 13 21 Halsbury’ s Laws of England, Bn, p. a7. (QE OB) sve cenccccse renee i ee ee, 13 Beale, Innkeepers and Hotels, 635, p. 26 (1906)-.... 14 Nimmer, ‘‘A Proposal for Judicial Validation of a Previously Unconstitutional Law: The Civil: Rights Act of 1875,”’ =. Col. LL. Rev. 1394 (1965) oes sesesemeeetereeeetereeeeey a a w a » Tt oe tee een teen ten nmmenen IN THE Supreme Court of the inited | States OctoseR TzeM, 1968 soa . e ; ri 1223 dy. Sanpra ApIcEEs, Ceo ere has + — . + Petitioner, & against S. H. Kress and Company, ites takes arene, ali bg RESPONDENT’S BRIEF IN OPPOSITION TO. PETITION FOR WRIT OF CERTIORARI TO a THE UNITED STATES COURT‘OF APPEALS | FOR THE SECOND CIRCUIT | aiid S. i. Kress and Qompany (heteinatier re- ferred to as ‘‘Kress’’), defeydant below, opposes the - granting of the Petition @or Writ of Certiorari to review the decision of the UnitedeStates Court of Appeals for the Second Circuit on the grounds thatthe Petition fails to ¥ satisfy the requirements of Rule 19 of the Rules-of this *% ourt, and, further; fails t6“set forth any special, ‘impor- tant or extraordinary grounds for the Court’s exercise of its discretionary ie | jurisdiction. Opinions Below. i On oe 14, 1966, the United States District Court for the Southern District of New York, after the completion (— of full discovery, ordered sumfhary judgment with respect to petitioner’s claim that Kress had entered, into a con- F “Ne .. bo v spiracy to deprive petitioner, the plaintiff below, of iar ~ civil — finding that there was o evidence in: the: complaint or in the affidavits d other papers from whiclt a ‘reasonably-minded _ person’ might draw an inference “Sf ' conspiracy. ie The opinion (Honorable Dudley B. Bonéal, U.S. D. J.), reported in. 252 F. Supp. 140 (S. D. N.Y. 1966), is’ con- “33 ° _, tained in Appendix B.* ; ne J On February :15, 1967, the United States District Court for the Southern District of New York (Honorable | Charles H. Tenney, U. S. D. J.) enteréd an ofder and judgment directing a verdict in favor of respondent. on the ~ round. that petitioner had failed to offer proof of a violation of the Civil Rights Act of 1871, Ch. 22, §1, 17 Stat. 18, 42 U.S.C. 91988, oo. nr On “December ‘27, 1968, i United States Cetext of Appeals for the Second Circuit affirmed both decisions of - the District Court, finding that (a) there had been no proof of a violation of Seo/ tion 1983; and ‘(b) the claim of conspiracy was unsupported by any facts tending ‘‘to suggest a conspiracy’’. The opinion of the Court of — is contained in, Appendix B. Jurisdiction = | ‘ ~Petitioner seeks a writ of certiorari to review the deci- sion of the Court’of Appeals affirming the District Court’s judgment dismissing the complaint; discretionary juris- diction would be founded on 28 U. 8. ©. §1254(1). _ ® References to the “Appendix” are to ical > Appendix sub- mitted as part of the ses Petition. _ 4 ne Statutes and Rales Involved ‘The Statutes and Bules pertinent. here are: - Civil Rights Act of 1871, Ch. 22, §1, i Stat. 13, 42 U.S. C. $1983; . Rule 56, Federal Rules of Civil Procedure ; :- -Rules 13(b)(1) and 16 (a-b), Calendar Bules of fie United States District, Court for the Southern - District of New York. Questigns Presented ‘Respondent submits that the Petition does not pce any ‘‘special and important’’ question, or, indeed, any question of substance. This action was decided by the -- Courts below on the unique fact situation involved. The questions presented to the Court of Appeals. Gere: 1. Whether the District Court eee exer-, ——— discretion in granting summary judgment dismissing a claim of conspiracy where, after full discovery, petitioner produced no facts to support the claimed conspiracy and there was specifie proof negating such aclaim. _. ~— 2. Whether the District Court correctly exor- cised its discretion in refusing to allow an amend-. ment of the complaint to allege a claim under a te, declared unconstitutional almost 90 years age. by this Court, where the statute had no appli- cability , to Xhe facts p sented, irrespective - its. constitutionality. \. 3.. Whetiler in an action for damages, brought . pursuant to 42 U. S. §1983, for failure to serve - a person at a lunch counter, th¢ District Court cor- rectly ruled that there was no state action,* oO * The phrase “state action” is ‘used by re courts and in this brief as the equivalent of, and interchangeable with, “under color ef state law.” See e.g.; United States v. Classic, 313 U. S. 299 ssh - % 80 sippi Code; §2046.5, of refusing service to whites in-the company of Negroes”—this, Said J udge Bonsal, “will satisfy * the state action requirement of 42 U.S.C. §1983” (A. 183). Judge Bonsal’s, pPinion sets out the further dictum that, as ‘to the enforcement of the “custom,” petitioner would have to show, in addition that respondent’s: stdre manager had knowledge of or was influenced ‘by Mississippi Code §2046,5 [See Point I-supra] in ordering the waitress not to serve petitioner (A. 183). J udge Bonsal’s interpretation did violence to the lan-. guage of §1983 which grants a cause of action to a person subjected to a deprivation of his rights “under ,color* of _ any statute, ordinance, regulation, custom, or usage, of any. state...” The statutory lan@uage clearly fends federal support to: the individual’s assertion of his constitutional ~ rights against either state law or against custom that, would deny him such rights., Judge Bonsal derived his interpre- tation by reference to the Civil Rights Act of 1964 which defines “custom. or usage” as that “fequired or enforced: by ‘Officials of the state” [42 U.S.C. §2000a(d) ]- (A. 182). The effect of this interpretation is to narrow and limit the. right: to a cause of action and to require proof that, a tustom of re- fusing service to whites in the company of Negroes—which, in expression of a state policy against the “mixing” of the races, might be yniversally followed in a state by its resi- dents, citizens and inhabitants—must not only be followed _° but enforced by state officials. Judge Bonsal further - ‘sug- gested that the enforcement by state officials must be known to the charged violator sie the — has a cause of action. This Court in Jones v. Mayer Co., 392 U.S. 409, 423 | (ftnote) (1968), has recently underlined the distinction Rights Act of 1866 (42 U.S.C. §1982). 5 j 7S intended by tiiemeiien as. between “State or. local law” and ° “custom or prejudice” as shown,in the debate on the Civil 2 Judge Waterman in his dissent in the coum, below con- ~ sulted-“The Reconstruction Amendments. Debates” as ré published by. the Virginia Commission on Constitutionat Government (1967) in seeking a contemporaneous inter- | pretation and meaning ‘for custom as it appeared im 42 U.S.C. §1983 in 1871 when the language - became law; he concluded that the meaning expressed in Black’s Law Die- tionary 4th edition, 1951, “would haye boem acceptable -to . that Congress (A. (213): . _“A usage or practice of the Rares which, by common ’ adoption and acquiescence, and by long unvarying ~~ habit, has become.compulsory, and has aé¢quired the force of law with respect to th- place or subject mat- ter to which it relates. ah: ‘ Judge. Wilde further assailed the Bonsal logic which defines the custom as the refusal to serve whites in the company of Negroes. Such a “custom” could not obtain in a state so historically prejudiced against the acceptance of Negroes in public places in the company of whites. that, until the Civil Rights Act of 1964, despite the language of : the "thirteenth, fourteenth and fifteenth amendments to the constitution, whites and blacks risked their very lives in any attempt to mingle (A. 214). Yet “that refusal on August 14, 1964, was unequivocally. an expression. of the custom against public integration." ieee , : * Black’s Lai Dictionary, 461 (4th Ed. 1951) (A. 214) * The subtlety of the discrimination in the case at bar was not overlooked by ee Waterman who quoted Judge Fuld of. the : e oe 3 a ’ $2 The framers of §1983 must have had this very custom or psage | in mind when the law was passed. It was well known that the white “trouble maker” who advocated the cause of the black was doubly suspect. In the period immediately preceding the 1871 legislation, custom, prejudice and law — in the- ‘South: imposed sanctions on the white person who "was friendly to the Negro. Viz.: '* “The laws were particularly harsh on white persons who broke the prohibitions of the slave codes; the death penalty for whites was not infrequently the ‘ punishment for aiding a slave to rebel.” st Se The Era of Reconstruction, Be os . “Mr, ‘President, the suniilicn which the thirteenth 2 ’. Amendment imposed on the late insurrectionary State was one which demanded the serious consideration and attention of this government. The equality which by the thirteenth, fourteenth and fifteenth amendments has been attempted’to be secured for the colored men, _has not only subjected them to the operation of preju- * dices-which had theretofore existed, but it has raised | against them still stronger feelings-in order to. fight - down the equality by which it is claimed they are to control the legislation-of that section of the: country. They were turned loose among those people weak ignorant and poor. Those among the white citizens + _ Court of Appeals of N.Y. in ‘Holland v. Edwards, 307 N. Y. 38, 45 A 1954) : “One intent on violating [laws prohibiting discrimination] cannot be expected to declare or announce-his purpose. For more likely is it that he will pursue his: subtle and las practices in ways that are devious, by methods subtle and elusive—for we deal with an area in which ‘subleties of conduct . . play no small part’.” (A. 216). ; there who. have ner to sositaitisbe the rights which you have thrown upon that class of people, have to endure every species of proscription, \ of opposition, _ and of vituperation in drder to carry out the policy of Congress, in order to lift up and to. uphold the . rights which fou have conferred upon that class. “It is for that’ reason not onl¥ ‘necessary for the freed ‘man, but it is necessary for the white people of that section that there should be stringent and effective ‘legislation on the part of Congress in regard’ to thede measures of reconstruction.” .[Remarks of Senator Pool of N. Carolina in Cong. Globe 41st Cong. 2nd Sess. pp. 3611-3613 cited in appendix to U.S..v.. Price, 383 U.S. sieht cae Pag and again: af uinall part of that anueri but the worst part of it, banded themselves into, felonious © conspiracies, _ which take advantage of the unsettled condition 6f» Southern society to commit assassinations, mutilations and other crimes . . . The most intelligent and prob-. able explanation of motives imputes to them a ran- ‘eorous and implacable discontent on account of the political and civil rights conferred on colored people by the constitutional amendments. Their operations .are, therefore, directed “chiefly 163 U.S. 537, .in 1896. See A. Kinoy, “The: Constitutional es of Negro 7 Freedom,” 21 Rutgers L.R. 387 (1967)... a . Brown. v. Board of Education, supra, this Court con- sulted contemporary congressional debate and the cireym- stances ‘surrounding the adoption. of the fourteenth amendment in 1868¥and concluded that “although , Ahese . sources cast some light, it is not enough to resolve the preblem with which we are faced.” Reference to Recon- struction history andthe Act of 1875 finds extensive debate, ~ » commencing in 1871, on the role of the federal govern- ment that was to evaluate in the passage of the Act of 1875 in securing and protecting the civil rights of indi- | viduals. The force of this Act was limited to the rights of ~z, the individual to public accommodations—but only after “the Act had lost specific provisions as to equality in educa- tion and jury selection. See “The Reconstruction Amend- ~ ments Debates”, supra pp. 654-6, srsol so, 671, 736-7, 740-3. Cf. A. Avins, “The Civil Rights Act of 1875: Some Reflected Light on the Fourteenth Amendment and Public Accommodations,” 66 Col. L.R. 873 (1966). | In the light of this history, it is ironic that J nudge Resial, . . today, should supply a gloss to the Act .of 1875 distin- guishing the respondent’s lunch counter from an “inn” and, on this narrow ground, should deny petitioner’s motion to add a third cause of action to her complaint. a e . s — iJ . "As to the definition of an “inn”, Justice Harlan in his : ‘Civil Rights Case dissent stated: ; “The word ‘inn’ has a technical legal + aegis. | It means, in the act of 1875, just what it meant at- , common law. -A mere private boarding-house is ‘not an inn, nor is its keeper subject to the responsibilities, or entitled to the privileges of a common innkeeper, ‘To constitute one an innkeeper, wi witHin the legal force a of that term, he must keep a house of entertainment | or lodging for all travellers or wayfarers who might. choose td accept the same, being of good character or. conduct.’ Redfield on ergs etc., $575. Says J udge > Story: EN _ ‘An innkeeper may be “defined to be the ‘keeper of a common inn for the lodging and entertainment of travellers and passengers, their horses and attendants. - An innkeeper is bound to take in all travellers and - wayfaring persons, and to entertain them, if he can - ~ . aecommedate them, for a reasonable compensation; and-he must guard their goods with proper dili- - gence . ... If an innkeeper improperly refuses to receive or provide for a guest, he is liable to be in-. dicted therefor. ... They (carriers of passengers) are no more at liberty to°refuse a passenger, if they have sufficient room and accommodations, than an inn- - keepér is to refuse suitable room and accommodations to a guest.’ 2 Story. on Bailments, §§475-6. - In Rex v. Ivens, 7 Carrington & Payne, 213, 32 E. C.L.. 495, the court, aces by, Mr. Justice Cole- ridge, said: 7 __. ‘An indictment lies akan an ’ ginkeaper who re- fuses to receive a guest, he having at the time room ® ° © Ee | 2 : in his house; and either the price of the guest’s en- tertainment. being tendered to him, or ‘such circufn- stances occurring as. will dispense with that tender. This law is founded in good sense. The innkeeper is not to select his guests. He has no right to say to + one, you shall come to my inn, and to another ¥ou - shall\got, as every one coming and conducting: him- & self in a) proper manne has~a_-right to be received; ‘and for this purpose innkeepers are-a sort of public servants, they hawing in return a kind of . privilege of entertaining travellers and supplying them with. what they want.’ 2 Bites “These authorities are sufficient to show that ee ‘keeper of an inn is in the exercise of a quasi public employment. .The law gives him special privileges and -he is charged with certain duties ind responsi- bilities to the public. The public nature of his em- ployment forbids him from discriminating against any. person asking admission as a guest, on account of the ; “race or color of that person.” . Reference to. the common law duty of thie pinnkeeper to serve all without raciak distinction is reaffirmed as pre- dating the thirteenth amendment was made by this Court in Heart of Atlanta, supra p. 261. ag Petitidner maintains that a reading of the preamble of _ the Civil Rights Act of 1875 in conjunction with-the spe- cific language of the Act would bring the respondent es- ' tablishment under its terms—as either an “inn” or a place - 0'The public nature of the innkeeper and/or victualler’s duty refers to Point II, supra, and the common law duty that Mississigpi Code. §2046.5 changed. eager Ail e » , 3 . . of “public ‘amusement” both of which are covered by lan- _ guage in the statute. ictets > In this connéction, incidentally, Nimmer expresses the misgivings that courts today ‘might be inclined to distin- guish lunch counters, shoppers’ luncheon booths and res- taurants as we know them from an “inn” as designated in the Act of 1875. Judge Bonsal below fully justifies this , - misgiving by making just such, a distinction in refusing the plaintiff the:right to sue under the Act of 1875, in an opinion that otherwise over-rides Nimmer’s useful histori- . . cal review (A. 185). This limitation. on the, 1875 Act ‘would not seem to be consistent with its purpose nor with a reasonable ‘con- _ struction. in the light. of the nature of a luncheon service | ~ attached to a store where, according to stipulated fact, a part. of,.its products’ travelled in interstate commerce (A. 192). Cf. Williams v..Howard Johnson’s Restaurants, 268 F. 2d 845 (CA 4, 1959) (before passage of the 1964 Civil Rights Act). In addition to her right under 42 U.S.C. §1983, petitioner - had an independent right to assert a claim for liquidated damages under the 1875 Act. a 44 j “ POINT IV . Judge Bonsal’s summary judgment on the basis of affidavits and unsworn statements against petitioner’s conspiracy count, which was supported by circumstan- tial evidence, tlenied petitioner the right of triat on this issue. ° ; | Judes. Bonsal, set up trial stAndards rather than the . appropriate pleading standards when he dismissed on sum- - nary, judgment the conspiracy count in which petitioner alleged that the respondent Kress had engaged: in con- spiracy with the police department of ‘Hattiesburg. ‘In supp t of its motion respondent relied upon the . denials by the manager in his deposition and by two mem- bers of the ‘police force and of the Chief of Police in their affidavits. Respondent, however, offered two unsworn state- . ‘ments of its employees which did not corroborate and were : in apparent contradiction of the respondent’s denial and of the testimony set forth in the deposition and affidavits of - Fespondent’s ather witnesses. Dolores Freeman, the wait- . ress who refused service to’ petitioner does not refer to any a “explosive” situation and explained her _Tefusal . as merely - in compliance with policy set by her supervisor (A. 178): Irene Sullivan, another employee of respondent, stated that | Patrolman Hillman entered the>store after petitioner arid ~ her students had come into the store and. that she (Miss ’ Sullivan) spoke to him (A. 179).. Hillman was the officer who -arrested petitioner ee upon her ae : from the store. The facts of any such conspiracy are peculiarly within the knowledge of the respondent. Petitioner should have 2 45° | had the opportunity at trial to draw. wel such facts beais, the respondent and to make use of the factual inferences sur- rounding the events of her first being discriminated against ’ by respondent and then, immediately. thereafter, being ar- — — J ural Gas Corp., 321 U.S. 620, 628 (1944): | , rested by the police. See Poller v. Columbia Broadcasting Co., 368 U.S. 464 (1962). . Respondent should not have been oetinitiad to rely upon the ex parte affidavits of the police officers and Chief of Police; this action by the trial court deprived plaintiff of the Aight of cross-examination. As this Court said in re- versing ‘a summary judgment in Sartor. v.. Arkansas Nat- ae ee TE a | may, well be that the weight of the eviden} would be found on a trial to be with the defendant} But it may not withdraw these witnesses from cross-exami- ¢ nation, the best. method yet devised for testing trust- worthiness of testimony. And their credibility and the “ weight given to their opinions is to be determined _ after trial, in the regular manner.” See Arnstein v. Porter, 154 F. 2d 464 (CA 2, 1946) ; Colby v. Klune; 178 F. 2d 872. (CA 2, 1949). Petitioner maintains that the conspiracy between respon- dent and the police department can, without more, be in- ferred from the sequence of events. As to such contention, this Court. nas stated: gt >. y “On summary judgment the inferences to be drawn eal . from the undgrlying facts contained in such materials. ‘must be-viewed in the light most favorable to the party . ~ opposing the motion.” United States v. Diebold, Inc., 369 U. 8. a 655 igen’ 46 ‘To the same effect is Poller v. Columbia Broadcasting Co., 368 U.S. 464 (1962). e | Judge Bonsal placed great reliance on Morgan, v. Syl- . vester, 125 F. Supp..380 (S.D.N.Y. 1954) affd. 220 F. 2d 758 (CA 2, 1955) cert. den. 350 U.S. 867 (1955) (A. 183). : There a summary judgment was granted and affirmed in’ an action by a plaintiff ander the Civil Rights Act {Title 42 U.S.C. §§1983, 1985) against various judicial, execu- tive, and legislative officials of the ‘State of New York. That: summary judgment was predicated on the immunity accorded under the law to public officials. acting in the - course of their official duties and further upon the ground | that there was no issue of* genuine fact—no plausible ground for the’ maintenance. of the cause of action n alleged in plaintiff’s complaint. : os __» Morgan was not a case, as is the case at bar, whan: one "unlawful act followed upon another—police action discrimi- nating against petitioner and group at the library, respon- dent’s act of discrimination against petitioner, and this . act followed immediately by the illegal arrest of aparece on the.trumped-up charge of vagrancy. _ ‘The finding by the trial court in the present case that the refusal of service was not based upon race and was not “conspiratorial” is predicated exclusively on the self-serv-— ing statements of store manager Powell. It ignores peti- tioner’s testimony that she was told by the waitress she was not being served because she was in the company of _ Negrags. Moreover, it callously accepts respondent’s -al- . legation that the situation. was “explosive,” «: justification for respondent’s invasion of the “petitioner's civil rights and for the subsequent police action against the petitioner. / we OH IE ne. eee © 47 ‘ Such. inverted reasoning —historically invoked again -and again to justify deprivation of personal liberty by “pro- - tective. eustody”—cannot be appropriately invoked. here. . _——The facts before the trial court—supplied by thé respon- ‘dent: as well as by the petitioner—warranted a trial of. petitioner’s allegation of conspiracy against her civil rights. This Court has repeatedly held that, on appeal from a grant of summary judgment, factual disputes must be re- . solved in a manner most favorable to the party opposing the motion and thig?is particularly true with regard to the invocation, of rights under the federally created civil rights = Cf. Jobson v. raise 355 F. 2d 129 (CA 2, 1966). ‘POINT V_ It was error and an abuse.of discretion by the trial court to deny- petitioner e benefit of expert testimony - on the issue of custom and usage when the testimony pf ’. experts was contemplated in the pre-trial order and due ‘notice of their identity was — given one day be- fore trial. - . One rei before trial, petitioner gave tia orally and in writing of her intention to “call two expert witnesses to the custom and usage in Mississippi on the issue of the ““mixing” of the races in public places (A. 227). She also filed a written aera nac to the trial memorandum (this brief p., : é The pre-trial order » specie that no more than two ex- pert witnesses would be called by either side and that prompt notice of: their identity’ would be given (A. 195). Petitioner maintains that she was unable to ascertain who would be available until she knew certainly when the ° . . ? P ~~ 48 case was to be tried, and petitioner’s counsel protested her diligence in going about finding the appropriate expert from the momént the case was definitely set for trial. The "names of the witness¢s—Reverend Robert Beech and An- — drew Gordon—were known to the respondent the day be- © fore the case was to go to trial (A. 229, 230). 3 Although the trial court considered. the main issue in . / _ the case to be that dn which these experts were to testify | and subsequently non-suited the petitioner for insufficient ~ proof on this issue; the trial court nonetheless ruled against ‘permitting them to testify (A. 233). Before petitioner rested, she reapplied to the court for © | permission to call one of the experts and made an offer ‘~ ‘of proof (A. 303, 304) > Permission to call the witness, _ Andrew Gordon, was again denied (A. 305). It is petitioner’s contention here that expert evidence . would have strengthened her case if it had been permitted to go to the jury ahd, accordingly, it was an abus¢ of dis- cretion for the court: not to permit the expert testimony. As it was, the trial court through-the testimony of the petitioner and other witnesses to the events admitted evi- dence bearing on the customs against the “mixing” of the races in Hattiesburg, Mississippi, in 1964. Nonetheless, the trial court disregarded this evidence as it applied to the -” issues and as they’should have been ee gars Point I and © Poirit II of this brief). . This refusal of the trial court to receive expert testimony | on the issue as erroneously framed—i.e.: whether in Hat- \ ee tiesburg i in 1964 it was “the custom” to. serve Negroes and refuse service to whites in their company—compounde the error and underlined the unfairness of the proceeding ,. - 49 as to petitioner. a ing pos of this kind of sudicial cond ‘as constituting an abtise of discretion the Court of Appeals _ Sfor the Sixth Circuit has said in Cohen v. ¥ oung, 127 F. 2d 719, 726 (1942) : “The term dineretion’ implied the absence df a ye : and fast rule. The establishment of a clearly defined rule of action would be the end of discretion and yet discretion should not be a word for arbitrary will or inconsiderate action. ‘Discretion means thé equitable © decision of what is just and proper under the circum- stances.’ ” “Whither aétion taken by the court lies within its © ‘sound discretion is ordinarily a question of fact } _., whether-under the rules of law and the established © ts principles of practice, having regard to the rights and interests of all parties, justice and equity require the action in question. Langnes v. Green, 282 US. 531, 51 — S. Ct. 243, 75 L.. Ed. 520. The exercise of discretion . does not permit the court to dissegard the substantive - principles of law established for the protection of liti- -- gants. One of these pringiples is that judgments and decrees: which make findings of fact shall be founded on evidence. Thus it is an abuse of discretion to refuse to receive and consider evidertce by which the court’s discretion should be guided or controlled. Goodyear .Tire & Rubber Co. y. National Labor Relations Board, 6 Cir., 122 F. 2d: “450, 453, 136 -A.L.R. 883; Common- wealth v. White, 147 Mass. 76, 78, 16 N.E. 107. ‘6 Cf. Springfield Crusher, Inc.-v. : Pramsedalinenal ea Co., 372 F. 2d 125 (CA 3; 1967). : . ae . CONCLUSION The judgment of the court below or be reversed | and the case remanded to the District Court under ap- propriate instructions permitting petitioner to sue for 42 OAs §1983 and the Civil Rights Act of 1875. Respectfully submitted, . a ‘Exzanor Jackson. Pier 36 West 44th St. ¢ _ New York, N. Y. 10036 Attorney for Petitione¥ Metvin L. Wor 156 Fifth Avenue New York, N. Y. 10010 Of Counsel July, 1969 “9 51 ‘TEXT OF CONSTITUTIONAL AND STATUTORY. PROVISIONS INVOLVED ‘CONSTITUTION OF UNITED STATES , AMENDMENT XUL ~ } § i. Suaveny ABOLISHED" Section 1. Neither divans nor involuntary servitude,. except as a punishment for erime whereof the party shall have been duly convicted, shall exist within the United _- States, or r any place subject to their Jurisdiction. ae § 2; ENFoRcEMENT Section 2, Congress shall have power to enforce this “article by SEIN legislation. ' AMENDMENT XIV. ee ae §1.. CiTIZENSHIP. — Nor 70 o Br Axriwcep By STATES Section 1. All persons born or naturalized i in.the United ' States, and subject to the jurisdiction thereof, are citizens . of the United States and of the State wherein they reside. No State, shall make or enforce any law which shall abridge the privifeges or immunities of citizens’ of the United States; nor shall any State ‘deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its eccamib, e equal protection of the laws. | ! (Sections, 2-4 omitted) - §2 $6. Power TO ENrorce ARTICLE Section 5. The Congress shall have power to ntects by appropriate meen, the provisions i san arvana ° . AMENDMENT XV. . 64, ions TO Vora Nor 10 Br ABRIDGED. Section 1, The right of citizens of the United + fikates to vote shall not be denied or abridged by the United States .° or by any State on account of ae color, or previous *” condition of servitude. ee, « Powsn to Exronce Arricux Section 2, The Congress shall have power to enforce this article by appropriate legislation. | ee STATUTES tad ( * US. C. §1983., Civil action for deprivation of rights Every person who, under color of any statute, . ordinance, regulation, custom, or usage, of any State or F Territory, subjects, or causes to be- subjected, any ', Citizen of the United States or other _kerson within the x jurisdiction thereof. to the deprivation of any rights, privileges, or immunities secured by the Constitution . and laws, shall be liable to the party injured in an - action at law, -suit, in equity, or other proper proceed- : __. ing fo? redress. R.S. $1979. Act Apr. 20, 1871, c. 22. $1, Kh Stat. 13. Civil Rights Act of 1875: ee | Chap. 114—An Act to protect all citizens in their eivil ’ and legal rights. Mp > wit ; On : ad 7 . . ° Whereas, it is essential to just government we recog- | nize the equality of all'men before the law, and hold that it is the duty of government in its dealings with ' the people to mete out equal and exact justice to all, | of whatever nativity, race, color, or persuasion, re- j — ligious or political; and it being the appropriate ob-_ . ject of legislation to enact great: fundamental — : - ples into laws. Therefore; ” . Be rr ENACTED BY THE SznaTe AND Hovss OF REPRE- SENTATIVES or THE Unrrep States or AMErica In Con- GRESS ASSEMBLED, That all persons within the jurisdic- _tion of the United States shall be entitled to the full and- equal enjoyment of the accommodations, advan- . tages, facilities, and privileges of inns, public convey- ances on land. or water, theaters, and‘other places of ° public amusement; subject only to the conditions and limitations established by law, and applicable alike to . eitizens of every race and color, regardless of any ony condition of servitude. Sec. 2. That any person who shall violate the fore- going section ‘by denying to any citizen, except for rea- ‘ sons by law applicable to citizens of every, race and color, and regardless of any previous condition of | servitude, the full enjoyment of any of the accommo- dations, advantages, facilities, or privileges in said section enumerated, or by aiding or inciting such de- - nial, shall, for every such offense, forfeit and pay the sum of five hundred dollars to the person aggrieved thereby, to be recovered in an action, of debt, with full costs; and shall also, for every such offense, be deemed guilty of.a misdemeanor, and, upon conviction thereof, - shall be fined not less than five hundred nor more than - _“one thousand dollars, or shall be imprisoned not less a than thirty days nor more than one year: Provided, _ That alkpersons may elect to sue for the penalty afore- said or to proceed under their Yights at common law _ and by State statutes; and having $0 elected to proceed in the one fhode or the other, theiy right to proceed in the other jurisdiction shall be barred. But this proviso shall not apply to criminal proceedings, either under ‘ this act or the criminal law of any State: And pro- vided further, That a judgment for the penalty in. - favor of the party aggrieved, ora judgment upon an indictment, shall be a bar to either prosecution re- spectively. | ae a Sec. 3. That the district and circuit courts of the United States shall have, exclusively of the courts of — the ‘several States, cognizance of all crimes and of- fenses against, and violations*f, the provisions of this act; and actions for the penalty given by the preced- ing section may..be prosecuted in the territorial, dis- trict, or circuit’ courts. of. the United States where- ever the defendant may be found, without regard to the other party; and the district attorneys, marshals, and deputy marshals of the United States, and eommis- siuners appointed by the circuit and territorial courts of the United States, with powers of arresting and im- prisoning or bailing offenders against the laws of the . United States, are hereby specially authorized and re- quifed to institute proceedings against every person who shall violate the provisions of this“act, and cause. him to be arrested and imprisoned of bailed, as the case may be, for trial before such court of the United States, or territorial court, as by law has cognizance of - _the offense, except in respect of the right of action ac- -* eruing to the person aggrieved; and such district at- . 55 wisn shall cause such siesta to be seiainiees to their termination as in other cases: Provided, That nothing contained in this section shall be construed to deny or defeat any right of civil action accruing to _ any person, whether by \;eason of this act or other- _ -wise; and any district attorney who shall willfully. fail to institute and prosecute the proceedings. herein re- qtired, shall, for every such offense, forfeit and pay the’sum of five hundred dollars to the person aggrieved thereby, to be recovered’ by an action of debt, with full costs, and shall, on conviction thereof, be deemed _ guilty of a misdemeanor, and be fined not less than one — thousand nor more than five thousand dollars: And ‘provided further, That a judgment for the penalty in. favor of the party aggrieved against any such district , attorney, or a judgment upon an indictment against any such district attprney, shall: be a: ‘bar to either praseeution respectively. See. 4, That no citizen Ossessing all other q fications which are or may be eribed by law sh be disqualified for service as grand or petit juror in any vourt of the United States, or of any State, on ac- coum of race; color, or previous condition of servitude; and any officer or other person charged with any duty in the seonon or summoning of jurors who shall ex- clude or fail to summon any citizen for the cause afore- _ said shall, on conviction thereof, be deemed guilty of . _ misdemeanor, and be fined not more than five thousand dollars. : @- _ See: 5. That all cases“Grising ein the provisions of this act in the courts of the United States shall be “ . reviewable by the Supreme Court of the United States, 56 ora | without regard to the sum in controversy, under the same proviSions and regulations as are now provided by law for the review of other causes in said court. Approved, March .1, 1875. [48rd Cong. Sess. II, + pp. 335 et seq.] | | ‘GENERAL LAWS OF MISSISSIPPI—1956, Chapter 466—Stenate Concurrent Resolution No. 125 A Concurrent Resoiution condemning and protesting ‘the usurpation and encroachment on the reserved powers of the states by the Supreme Court of the United States . and declaring that its decisions of May 17, 1954,-and May 31,,1955, and all similar decisions are in violation of the - Constitution of the United States and the State of, Mis- sissippi, and are therefore? unconstitutional and of no lawful effect within the territorial limits of the,State of Mis- sissippi; declaring that a contest of vette has arisen be- tween the State. of Mississippi and said Supreme Court and invoking the historic doctrine of interposition to pro- tect the sovereignty ‘of this and the other states of the Union; and calling on our sister states and the Congress. for redress of grievances as provided by law; and for other. purposes. _ ee Be it Resolved by the Senate. of the State of Mississppi,; _ the House of Representatives concurring therein, That the Legislature of Mississippi unequivocally expresses a firm’ ° determination to maintain and defend the Constitution’ of the United Stages, and the Constitution of this State, against every ttempt, whether foreign or domestic, to - undermine and destroy the fundamental principles: em- bodied in our basic law by which this government was established, and by which ‘the liberty of the people and ¢ Sapee | 7 /% : 57: — ; 2 See te the sovereignty ofthe States, in their: proper spheres, have ; been long protected and guaranteed; “That the Legislature of Mississippi explicitly ve peremptorily declares and maintains that the powers of the — Federal Government emanate. solely from the compact, to which*the States are principals, as limited: by the’ plain _sense and long recognized intention of the instrument cre- ating that compact; 3 ~ Bi That the Legislature of Mississippi firmly asserts that. the powers of the Federal Government are limited, and valid only to the extent that these powers have been con- > ferred as enumerated in the compact to which the various -_ states assented originally and to which the states have. consented in subsequent amendments validly ratified ; That the inherent nature of this basic compact, apparent upon its face, is that the ratifying states, parties thereto, . have agreed voluntarily to confer certain of their sovereign rights, but only specific sovereign rights, to a Kederal Gov- ernment thus constituted ; and that aH powers not delegated to the United States by the Constitution, nor prohibited by it to the states, have been reserved to the states respec- tively, or to the people ; ‘That the State of Mississippi had at no hea through the Fourteenth Amendment to the Constitution of the United States, or in any manner whatsoever, delegated to the Federal Government its right to educate and nurture its youth and its power and right of control over its schools, colleges, educational and other public institutions and facil- ities, and to prescribe the rules, regulations and conditions under which they shall be conducted ; : That-the aggrandizement of. powers by the Federal Gov- ernment has grown far beyond that ever conceived by the 3 ‘authors of our Constitution, that the seizure and concen- . tration therein of powers not granted by the compact under - which the several states entered this Union, and particu- . larly that by which Mississippi’ entered the Union on De- cember 10, 1817, threaten to reduce these sovereign states - ‘to mere satellites, and to subject us to the tyranny of cen- tralized government, so rightfully abhorred by the fgund- ers, and for the prevention of which they exercised t finest genius; $ That in late years the encroachment 8 the reserved rights of the States and of thg people has grown apace, and the proponents of the acts of encroachment have grown so emboldened that not one of the sister states and its people have escaped the oppressive hand thereof: In the destruc- tion of their vested property rights; abridgments. of their liberties ; control of their institutions, habits, manners and morals by centralized bureaucratic instrumentalities ; and ' in fact by various wrongful and obtrusive acts, too nu- merous to be here documented, but so consistently char- . acterized by an oppressive course of action so as to seri- ously threaten to completely destroy our constitational processes and substitute in lieu thereof pasa foreign to the soil of our beloved land; “a That one of the noblest characteristics of our people is . the réverent respect for an obedience to the courts of law _ and justice, and that which more than any other has en- . mobled our institutions of government, and ought to be challenged only with the most dreadful -rgltictance, still _it should be-solemnly and firmly declared that the hand of "tyranny ought to be stayed from whatsoever source it might strike; i 4 * f 69. - a That we profess an undying attachment to and a warm - . regard and respect for the sister states, and for this Union, which, through unwarranted and unconstitutional action of the Supreme Court, is fastly being dissolved by usur- pation of powers reserved to the states and transferring ‘them to an all-powerful centralized government which, un- less halted, will reduce the state to impotent vassals, sheared of all rights and powers except those received at the sufferance of the Federal Government; That a question of contested power has arisen; the Su- preme Co the United States asserts, for its part, that the states did in fact prohibit unto themselves the power to maintain racially separate public institutions, and the State of Mississippi, for its part, asserts that it. and its sister states have never delegated. such rights; That the flagrant assertion upon the part of the Supreme Court of the United States, accompanied by threats of coércion and compulsion against the sovereign states of this attempt by bag court to waiaai the exercise of powers s not granted to'it; - _ That the. Legislature of Missi ppi asserts that when- _ever the Federal Government dttempts to engage ‘in the deliberate, palpable and dangerous exercise of powers not grant it, the states who are parties to the compact have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for’maintaining, within their respective limits, the authorities, rights and liberties appertaining to them; _ ae That failure on the part of- ‘this state thus to assert its clear rights. would be construed as acquiescence in the . surrender thereof, and that such submissive acquiescence ? - 60 3 ° ¢ to the seizure of one right. would in the end lead to the surrender of all rights, and inevitably: to- the consolida- tion of the states into. one sovereignty, contrary “to the’ sacred compact by which this Union of States was created; That the question of contested power asserted in this resolution is not within the province of the court to de- termine because the court itself seeks to usurp the powers which have been reserved to the states, and, therefore, ‘under these circumstances, the judgment of fll of the parties to the compact must be sought to resolve the ques- .tion; that the Supreme Court is not a party to this compact, but a creature of the compact, and the question of contested power cannot be settled by the creature seeking to usurp, the power, but by the. parties to the. compact who are the people of the respective states in whom ultimate sover- eignty finally reposes. Bre ir ruRTHER RESOLVED THAT: ‘In order .that relief be obtained and the wrongs and injuries inflicted be alleviated, we invite all of our sister . states to join in taking such steps as are necessary to settle the®grave question of contested sovereignty herein raised; the State of Mississippi declares that the Congress ‘has the duty and authority to protect the rights of the states from the unwarranted encroachment upon their re- served powers to govern the internal and domestic affairs- of the states; the State of Mississippi further asserts — that the Congress has, on many occasions in the past,. curbed the attempted encroachment by the judigiary upon - _the legislative and.executive branches of government, “it is the responsibility of the Congress likewise to protect. the states when their constitutional rights and privileges are endangered; The State of Mississippi declares emphatically that the sovereign states of ,the Nation have neygr surrendered 61. their rights and powers to control their public schools, eolleges and other public institutions; therefore, when an attempt is made to ‘usurp these powers, the people of Mississippi object and refuse to be so deprived, remindirig the Congress that the preservation of this Union of States, \ as the compact intended it should be, depends upon the - preservation pf the’ sovereignty of the states; The compact intended ours to be a ‘government of the people, for the people and, above all, a government by the people; if the right to govern and control the local affairs to decide questions 9f public health, morals, education and “safety are taken from the states, then a fatal blow has been dealt stdté Sovereignty and the states are nothing more than vassal ——— subject to a central govern- ment; . | . : The State of Mississippi declarés that it is the duty — i and privilege of a state to object to the aforesaid invasion of its rights.and does hereby interpose its sovereignty to protect these rights; it is the duty of the Congress to halt such practices and save.these rights;.and if such cannot be obtained other than by amendment to the Fedefal Con-. stitution, we appeal to thé\Congress, in the exércise of the power granted under Article 5 of the Constitution, - to inifiate and submit an appropriate amendment dirett to the forty-eight states for ratification by three fourths (34). of the Legislatures thereof, declaring that the states’. have never surrendered their rights and powers to control ‘their public schools, colleges and other public institutions and facilities to the Federal Government, or any depart. © ment or agency thereof, but such powers are reserved to the states; and until such time as these wrongs are righted, we do hereby declare the decisions and order’ of the Su- e . ¥ ¢ 62 preme Court of the United States of May 17, 1954, and May 31, 1955, to be a usurpation of power‘ reserved to the - several states: and do declare, as a matter of right, that said decisions are in violation of the Constitutions of the United States and the State of Mississippi, and therefore, are considered unconstitutional, ‘invalid and of no lawful - effect within’ the conics of the State of Mississippi; _ "We declare, further, our firm intention to take all appro- priate measures honorably ‘and constitutionally available to us, to void this illegal encroachment upon our rights, and we do hereby urge our sister states to take prompt . _ and deliberate action to check:further encroachment by _ the Federal Government, through judicial legislation, upon . the reserved powers of all states. , The Governor of Mississippi is respectfully requested to transmit’a copy of this resolutign to the President of the United States, the Governor of each of the other states, and to the members of Congress and the Supreme Court of the United States. . Adopted by the Senate, Febraary 09, 1956. Adopted by the House of ‘Representatives, February 29, 1956. ah ; | onan - MISSISSIPPI CODE, SECTION 2046.5 (1956) Business customers, patrons or chents—right to choose— _ penalty for violation. 1. Every person, firm or corporation elignned's in public business, trade or profession ‘of any kind whatsoever in the State of Mississippi, including, but not restricted to, ‘hotels, motels, tourist courts, lodging houses, restaurants, dining room or lunch edunters, barber shops, beauty par- EE ES —o37V—V—_—”_™” 63 lors, theatrés, moving pipture hie, or other places of - entertainment and amusement, ineluding public parks and : swimming pools, stores of any kind wherein merchandise is offered for sale, is hereby authorized and empowered to choose or select the. person or persons he or it desires to , do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place ‘of busi- . ness does not desire to sell to, wait upon or serve; provided, however, the provisions of this section shall not apply to _ corporations or associations engaged in the -business of selling electricity, natural gas, or water to the general pub- - or. furnishing telephone service to the public. © 2. Any public place of business may, if it so desires, dis- play a sign posted in said place of business serving notice ~ upon the general public that “the management reserves pe right to refuse to sell to, wait upon or serve any person,” however, the display of such a sign shall not be a prerequi-. site to exercising the authority conferred by this act. 3. Any person who enters a public place of business in this state, or upon the premises thereof, and is requested “or ordered to leave therefrom by the owner, manager or any employee thereof, and after having been so ‘requested or ordered to leave, refuses so to do, shall be guilty of a . trespass and upon conviction therefor shall be fined not more than five hundred dolalrs ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. , ‘4, If any paragraph, sentence, clause, phrase, or word of this act shall be held to be unconstitutional for any rea- ; — « son, such holding ot\meonsttutionality sh shall not affect any | other portion of this act. MISSISSIPPI CODE, SECTION 2056 (7) (1954) Conspiracy. ; If two (2) or more persons pave ae e*: 2s ¢ 814 (7 ) To overthrow or violate the segregation heme of this state through force, violence, threats, intimidation, or otherwise ; \ of * * such persons, and.each. of them, shall be guilty of a misde- eae meanor, and, on conviction, Shall be fined not less than : “twenty-five dollars ($25.00), or shall be imprisoned not lessthan one month or more than six (6) months, or both. + MISSISSIPPI CODE, SECTION 4065.8. (1956). Compliance with the principles of segregation of the races. ° 1g That the entire executive branch of. the government of the State of Mississippi, and of its subdivistons, and all persons responsible thereto, including the governor, the: - lieutenant governor, the heads of state departments, a sheriffs, boards of supervisors, constables, mayors, boards of aldermen and other governing officials of municipalities by whatever name known, chiefs of police, policemen, high- © mt way patrolmen, all boards of county superintendents of ~ . . education and all other persons falling within the) executive branch of said state and. local Sovernment. in the State of - Mississippi, whether ‘speaptally named herein or not, as < 65 | and they and each of them, in their official capacity are hereby required, and they and each of them shall give full force and effect in the performance of their official and - political duties, to the Resolution of Interposition, Senate Concurrent Resglaftion No. 125, adopted by the Legislature of the Sly in on the 29th day of February, 1956, whieli Resolution of Interposition was adopted by virtue of and under authority of the reserved rights of the State of Mississippi, as guaranteed by the Tenth Amend~ ment to the Constitution of the United States; and all of said‘members of the executive branch be and they are hereby directed to comply fully with-the Constitution of the | State of Mississippi, the Statutes of the State of Missis- sippi; and said Resolution of Interposition, and,are further directed and required to prohibit, by any lawful, peaceful | poise constitutional means, the implementafion of or the liance with the Integration Decisions of the United . Staten Supreme Court of May 17, 1954 (347 U.S.’ 483, 74 S. Ct. 686, 98 IL. ed: 873) and of May 31, 1955 (349 U.S. . 294, 75S. Ct. 753, 99 L. ed. 1083), arid to, prohibit by any. : lawful, peaceful and constitutional means, the causing of. a mixing or integration.of the white and Negro races in pub- lic schools, public parks, public waiting rooms, public places of amusement, recreation or assembly i in this state, by any © branch of the federal government, any commission, board or agency of the federal government, or any subdivision of the federal, government, and to prohibit, by any. lawful, : peaceful and constitutional means, the implementation of any orders, rules or regulations of any board, commission or agency of the federal government, based on the supposed . authority pf said Integration Decisions, to cause a mixing or integration of the white and Negro races in public ~ ee a IN 66. schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state. 2. The prohibitions and mandates of this act are directed _ ta the aforesaid executive branch of the government of the - State of Mississippi, all aforesaid: subdivisions, boards, and all individuals thereof in their official capacity only. Compliancé with said prohibitions and mandates of this _act by all of aforesaid executive officials shall be and is a full and complete defense to any suit whatsoever in law or equity, or of a civil or criminal nature which may here- after be brought against the aforesaid -executive officers, officials, agents or employees of the executive branch of State Government of Mississippi by any person, real or corporate, State of Mississippi or any other state or by the federal government of the United States, any commission, ' agency, subdivision or’ employee thereof. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0192%3A2. Public record. Not legal advice.