Turner v. City of Memphis

PETITIONER:Turner
RESPONDENT:City of Memphis
LOCATION:U.S. District Court for the District of Columbia

DOCKET NO.: 84
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 369 US 350 (1962)
ARGUED: Feb 27, 1962
DECIDED: Mar 16, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – February 27, 1962 in Turner v. City of Memphis

Earl Warren:

Number 84, Jesse Turner, Appellant, versus City of Memphis, et al.

Mrs. Motley.

Constance Baker Motley:

Mr. Chief Justice, may it please the Court.

Appellant appealed to this Court pursuant to Title 28, Section 1253 from an order entered by a three-judge District Court for the Western District of Tennessee, Western Division on February 10th, 1961.

The order which was entered after a trial on the merits state all further proceedings in this cause pending suit for declaratory judgment by the appellant for construction of the state statute under consideration.

In this case, appellant challenges the refusal of the appellee, City of Memphis and its lessee, Dobbs Houses to serve Negroes in the main dining room of the Dobbs Houses’ Restaurant which is located in the Memphis Municipal Airport.

The appellant’s claim is that such refusal in the light of the conceded facts in this case and set of law violates rights secured to him and members of his class by the Equal Protection Clause of the Fourteenth Amendment of the Federal Constitution and that he was entitled to the issuance of an immediate permanent injunction.

However, in view of this Court’s decision on yesterday in the case of Bailey against Patterson, holding that three judges are not required, when as here, prior decisions by this Court make frivolous any claim that a state statute is not unconstitutional on its face, appellant request this Court to dispose of this case in the same manner in which it disposed of the Bailey case or in the alternative to consider the papers on this appeal as a petition for certiorari to the Court of Appeals of the Sixth Circuit before judgment where there is presently pending an appeal from the same order sought to be reviewed by this Court.

And in support of this request, appellant —

William J. Brennan, Jr.:

Have you stated those facts?

Constance Baker Motley:

Pardon me.

William J. Brennan, Jr.:

All the types of appeals in the Court of Appeals?

Constance Baker Motley:

Yes, sir.

Potter Stewart:

At the same time as you file a petition for certiorari?

Constance Baker Motley:

Now, we have not filed —

Potter Stewart:

Or man — mandamus here, is that it?

Constance Baker Motley:

Pardon me.

Potter Stewart:

I’m — tell me what is here.

Constance Baker Motley:

Please let’s go down the line.

The only thing which is here is the appeal from the order entered below.

Potter Stewart:

An appeal here?

Constance Baker Motley:

That’s right.

Potter Stewart:

And a petition for certiorari to the Court of Appeals?

Constance Baker Motley:

No, sir.

Potter Stewart:

A — appeal in the Court of Appeals.

Constance Baker Motley:

That’s right.

William J. Brennan, Jr.:

Upon the same order that’s what I’m what trying to point out.

Constance Baker Motley:

Yes, sir, the exact same order and the same record is now before the Court of Appeals because we had some doubt that this was properly a three-judge court case.

It’s to protect ourselves.

We perfected an appeal to the Court of Appeals.

William J. Brennan, Jr.:

And now, I gather your position is, therefore our decision yesterday is satisfied that an appeal here has not lied that should have been a single judge determination.

Constance Baker Motley:

Yes, sir.

William J. Brennan, Jr.:

And therefore the proper appeals to the Court of Appeals.

Constance Baker Motley:

That’s right sir.

However, we would like the Court, as I indicated to treat this case as it did the Bailey case that is, to determine the authority of the District Court which we say in this case, the only authority the District Court had in view of the fact — that the view of the fact that the facts were considered and the law was settled was to enter permanent injunction.

And there really would be no purpose served in sending this case or sending us to the Court of Appeals because there is nothing to the Court of Appeals to do, we say, except to direct the entry of a permanent injunction.

Tom C. Clark:

Does the case been sent in the Court of Appeals?

Constance Baker Motley:

No, sir.

We asked the Court of Appeals to stay all proceedings pending the disposition of this appeal and they granted that motion.

William J. Brennan, Jr.:

Now what the trial judge did here, I gather, was to abstain and send it to the state court, is that it?

Constance Baker Motley:

That’s right.

William J. Brennan, Jr.:

And your position is that there’s no more reason for a state court determination of this statute and ordinances than there was in the Bailey case (Voice Overlap)?

Constance Baker Motley:

That’s right, Your Honor.

Potter Stewart:

And this was a three-judge court hearing?

Constance Baker Motley:

Yes, sir.

Three-judge court was complete.

Potter Stewart:

Again before Judge Marion and Boyd and then —

Constance Baker Motley:

The Ci — the Circuit Judge Martin and Judge Miller from Nashville.

John M. Harlan II:

Where is this —

Potter Stewart:

William Miller from Nashville or —

Constance Baker Motley:

Yes, I think it is.

William —

John M. Harlan II:

(Inaudible) from Nashville is state rule (Inaudible).

This is a regulation and follows (Inaudible) statute (Inaudible) regulation as to whether or not (Inaudible).

Constance Baker Motley:

Well, you know, the regulation here on its face, either required or permitted segregation and we say that there is no construction which the state court could give to that regulation.

John M. Harlan II:

How can the regulation — supposing the state court said that this regulation not authorized by the statute?

Constance Baker Motley:

Well, we would still have the constitutional question here that is the reference of the state court would not dispose of a constitutional question whether this lessee is subject to the Fourteenth Amendment so that we say there was no need to refer to the state court for that construction.

John M. Harlan II:

(Inaudible)

Constance Baker Motley:

The — yes, the constitutional issue would be not be mooted or eliminated from the case if the state court should hold that the regulatory agency was without power to issue such regulation because, you see, Dobbs Houses says, quite apart from any state order or statute, we segregate on our own as a matter of business practice.

So the question here is whether they can being this kind of lessee.

Felix Frankfurter:

Mrs. Motley, is this case, in your view, ruled by Burton against the Wilmington Parking Association?

Constance Baker Motley:

Yes, sir.

Felix Frankfurter:

Well, that’s what I had assumed and in that regard, the difference from the Bailey case because in Bailey case we were dealing with the conceded public utilities.

In the Burton case, the Court had to go through an examination of the relationship between the restaurant and (Inaudible) and the question of statutory authorization or direction was — did not trouble the majority, it was not involved in the majority but Court ruled in that case.

Now, in this case, are there any questions, could any questions arise similar to those which had to be canvassed in Burton before the decision was reached?

Constance Baker Motley:

I think in this case, they conceded in effect that this was Burton because they conceded that this was a restaurant in a municipally owned airport, the purpose of which was to serve the public.

There was no question here that the public was served in this restaurant.

They attach to their answer a copy — the city attached to its answer a copy of the lease and —

Felix Frankfurter:

The — the court of — the District Court, the three-judge court, am I right, doesn’t — was this decided, was this ruling made with the decision of the District Court before or after the Burton decision here?

Constance Baker Motley:

This decision was rendered before Burton, I believe.

Felix Frankfurter:

Before?

Constance Baker Motley:

Yes, sir, but I think that this Court’s —

Felix Frankfurter:

Of course, there’s no reference — there’s no reference, I’m right, am I not, I usually look through that, there’s no reference to the Burton decision in the — in the lower court.

Constance Baker Motley:

That’s right.

Because it was — the decision was rendered prior to this Court’s decision in Burton, but we say that —

Felix Frankfurter:

Yes, then — I said it — there was no reference to the District Court to the — related to the Delaware decision is that the —

Constance Baker Motley:

No, sir —

Felix Frankfurter:

— state decision.

Constance Baker Motley:

No, the state co — well, I think yes.

There was a discussion of —

Felix Frankfurter:

For all we know — for all we know, the District Court in this case might have acted otherwise than it did, if it had the Burton-Albertson decision before it, is that right?

Constance Baker Motley:

Well, all they did here, well they might have, but all they did here was to refer to state court for that.

Felix Frankfurter:

I understand that.

I understand that and therefore, they might have done one of these three things.

They might have done what they did.

They might have Dobbs — Burton was governing or they might have thought Burton was not governing, is that right?

Constance Baker Motley:

Well, yes.

Felix Frankfurter:

I’m just trying to find out whether this is like Bailey in that — the starting point of Bailey was a series of decisions which didn’t leave the question open that deemed to be open by the District Court in Mississippi.

Now, what you are saying is the same situation is here?

Constance Baker Motley:

Yes.

Felix Frankfurter:

But as Justice Harlan pointed out, there are differences and I’m pointing out some more differences.

Constance Baker Motley:

Well, I think here, the — it’s like Bailey because this Court had decided the Muir case which again was a lease of a public —

Felix Frankfurter:

What’s this?

Constance Baker Motley:

The Muir versus Louisville Park Theatrical Association in the same Circuit.

This si — was a Sixth Circuit case and that case involved the lease of amphitheater in a public park.

The Sixth Circuit held that the lessee in that case was not subject to the Fourteenth Amendment and this Court in 1954 immediately following Brown reversed or vacated the Sixth Circuit’s decision and sent it back for consideration in the light of Brown, and the provisions which then prevailed.

So that it was settled, I think that any lease of public property used for public purpose, there is no question if you were using this facility for public purpose, has been settled.

Felix Frankfurter:

But when say the Court — when you say the Court sent it back to reconsider in the light of Brown, you’re implying, are you not, that this Court didn’t say this is so, didn’t do in that case but we did in Bailey yesterday?

Constance Baker Motley:

Well in Bailey, yesterday, there was also an airport restaurant involved and the lessee and this Court —

Felix Frankfurter:

Yes, but —

Constance Baker Motley:

— did the same thing.

You see, the Jackson Municipal Airport is a party defendant in Bailey.

Felix Frankfurter:

But if —

Constance Baker Motley:

They have, likewise, leased their restaurant to a private lessee.

Felix Frankfurter:

Oh, that was said in Bailey unless I’m mistaken, the Government transportation.

I’m not saying you’re not right.

All I’m saying that — that one does have to establish that the thing is had been so established that — that — is a fiction of them.

Constance Baker Motley:

Well, I think —

Felix Frankfurter:

Fiction.

Constance Baker Motley:

I think Bailey dealt with transportation facilities and this is transportation facility, also. And I think the Court intended to say that any state enforced segregation in any transportation facility is settled by the decisions of this Court.

William J. Brennan, Jr.:

And it was the restaurant that the airport attack in Mississippi say involved in the —

Constance Baker Motley:

Yes, sir.

William J. Brennan, Jr.:

— party, party at –.

Constance Baker Motley:

— Party; the lessee as well as the airport authority.

Hugo L. Black:

The same rules apply, wasn’t it?

Constance Baker Motley:

Yes, sir.

Hugo L. Black:

The other — the other kinds of transportation facility, or bus transportation.

Felix Frankfurter:

Railroad.

Hugo L. Black:

Railroad.

Constance Baker Motley:

Railroad, that’s right.

Constance Baker Motley:

The air — the terminal facilities in these cases were involved not just the carrier facility.

Hugo L. Black:

Right.

Constance Baker Motley:

So that we think it is governed by Bailey because Bailey had the same facility involved.

Hugo L. Black:

How many separate cases are there on the airports segregation here?

Constance Baker Motley:

I believe there is only the Hendrik case and the Coke, District Court decision.

In the Coke case in Atlanta, the same restaurant was involved Dobbs Houses and the District Court there ruled that that lessee arrangement was subject to the Fourteenth Amendment.

In the Hendrick case which we cited in our brief that involved an airport facility in South Carolina in which the Court ruled that we were entitled to an immediate injunction in that case.

Felix Frankfurter:

What is it that you — you ask of this Court, Mrs. Motley?

Constance Baker Motley:

We ask this Court to do one of two things; either refer this case back to the District Court pursuant to its power to determine the authority of the District Court and say to the District Court, “Your only authority here was to issue the injunction prayed for because the facts were conceded.

This was a public restaurant in a public airport” and the law was settled that where or is now settled by Burton that where you have a public facility which has been leased for public purpose or public use concededly then that lessee is subject to the Fourteenth Amendment.

We think as this Court pointed out in Bailey yesterday, although it doesn’t have jurisdiction of this appeal, it does have jurisdiction to determine the authority of the District Court.

Felix Frankfurter:

Well that — I didn’t — I didn’t hear and therefore could not — couldn’t understand what are answer was to Justice Harlan’s question that if the District Court now, in light of Bailey and all that preceded, might pose that in fact Memphis didn’t have power, that the regulation is ultra vires to specific powers and go on that ground which is a very different thing from striking down as invalid an exercise of power.

So, the District Court might do that, would it not?

Constance Baker Motley:

Well, he might that but he would still have to say, in addition, I think, that this lessee is — is a Burton case that wouldn’t be —

Felix Frankfurter:

As I — I (Voice Overlap) — All I am saying it doesn’t make a difference.

The ground on which the Court goes may make a difference though the result maybe the same.

Constance Baker Motley:

That’s true.

Yes.

Potter Stewart:

This would go back to the District Court in Memphis?

Constance Baker Motley:

That’s right, Your Honor.

Potter Stewart:

You’re now —

Constance Baker Motley:

Or — well, yes, if the Court didn’t do that pursuant to what it did in Bailey than to treat the papers to search for or before judgment in the Sixth Circuit that we say first, that this Court under — as they did in Bailey should determine the authority of the District Court in this case.

Felix Frankfurter:

There’s a — there’s certain that another thing might be done if parties on both sides, if there is a consensual withdrawal of this appeal then your — your appeal because the Court of Appeals would go forward, wouldn’t it?

Constance Baker Motley:

Yes, I sho —

Felix Frankfurter:

I’m not trying to manifest litigation.

I’m just suggesting all possibilities that are open.

Constance Baker Motley:

That — that — that is true, but we say there’s nothing for the Court of Appeals to do in this case and that —

Felix Frankfurter:

The same thing that you are asking us to agree.

Constance Baker Motley:

Yes.

Felix Frankfurter:

Mainly to reverse what the District Court has done.

Constance Baker Motley:

Well, let me —

Felix Frankfurter:

If you are right to the District Court — didn’t give you the injunction your declaration you prayed for.

There was error and for the Court of Appeals said it right.

The point is that if your starting point is right, this appeal is improperly here.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

You, in fact, have an appeal pending in the Court of Appeals.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

So I must suppose that the ordinary thing is that the Court of Appeals should do or it properly should have been asked to do and you did ask to do but you naturally are two straight steel (Inaudible)

Constance Baker Motley:

Yes, but we say that’s — we think that this Court can under Bailey, direct the entry of a judgment which is all the Court of Appeals would be doing and that we should be saved the necessity of going through an appeal through the Sixth Circuit because there’s nothing for them do.

Felix Frankfurter:

You’re there now, aren’t you?

You’re there now.

Constance Baker Motley:

Yes, sir, we are.

William J. Brennan, Jr.:

I take it too, you’d be long while getting reach to it.

Constance Baker Motley:

Pardon me.

William J. Brennan, Jr.:

It’d be quite a while getting reached, wouldn’t you in the Sixth Circuit?

Constance Baker Motley:

Well, we have the come up in a normal cause.

We’ve only docketed the record there and we haven’t filed any briefs and they haven’t sent any arguments.

Potter Stewart:

And you affirmatively asked them to hold it, haven’t you?

Constance Baker Motley:

Yes, we (Voice Overlap).

That’s right.

Felix Frankfurter:

I’m not suggesting you should do this.

I’m trying to explore all the alternatives that confronted Court when an appeal is improperly before it, if you are right.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

Did you — did you, in your appeal, to the Court of Appeals say that it was not court of three-judge court?

Is that your ground?

Constance Baker Motley:

Well, yes, we appealed on the ground that we felt that there was some doubt but then we thought that this was properly an appeal from a one judge court.

But since there was some question and we had taken this appeal, we ask them to hold it and see what this Court would do with it.

We say — we just filed a notice of appeal and we haven’t filed any brief for anything but the reason for appealing was that we felt that this Court might rule that it was properly a single judge case.

Felix Frankfurter:

I just opened your brief which I haven’t done before not out of disrespect but I don’t do it normally, but I noticed that here you claim that is a proper three-judge court.

Constance Baker Motley:

Well, we did appeal here and I say that this Court settled that matter yesterday with the Bailey case.

Felix Frankfurter:

All I am saying it wasn’t clear to you until yesterday.

Constance Baker Motley:

That’s right.

William J. Brennan, Jr.:

Well, I guess it wasn’t clear to a lot of people —

Constance Baker Motley:

That’s right.

John M. Harlan II:

You have definition with that so — you have a definition (Inaudible) before Bailey (Inaudible) under the Court’s (Inaudible)

Constance Baker Motley:

Yes.

John M. Harlan II:

The problem is there isn’t (Inaudible), I wonder the (Inaudible)

Constance Baker Motley:

Yes.

John M. Harlan II:

(Inaudible)

Constance Baker Motley:

That’s right.

Felix Frankfurter:

Well, I don’t — I don’t follow that before.

Constance Baker Motley:

Well —

Felix Frankfurter:

— your claim has been all — all the way through what you conce — I’m not — I’m not remotely criticizing you or any body else, but as a tangled procedure or situation, for me, it’s — it’s perhaps it goes on because that — that is in need likes to understand it fully without disposing of it quickly.

You did claim the basis of your litigation was that the regulation is in violation of the Fourteenth Amendment.

Constance Baker Motley:

That’s our —

Felix Frankfurter:

And that’s your claim now.

It has been all the way through.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

And you said that’s a three-judge court business.

Constance Baker Motley:

Well, when we filed a complaint, we’ve —

John M. Harlan II:

I can’t understand what it was.

Felix Frankfurter:

Well, what was your complaint?

Tell us.

Don’t let me guess.

Constance Baker Motley:

Our — our complaint — that complaint preceded on the 12 — 1343 (3) an alleged that acting on the power of state laws, city ordinances, the defendants were segregating Negroes in the airport.

Felix Frankfurter:

And you did not — that — the statutory materials?

Constance Baker Motley:

No, we did not set out in the complaint that there was statute so and so and so.

Felix Frankfurter:

Oh, but —

Constance Baker Motley:

The defendants in their answer said, “We rely on this order as giving us the authority to segregate them.”

They were later permitted to rely on another statute which they claim authorized the segregation.

Felix Frankfurter:

To me, that makes no difference.

Not that I don’t know that the plaintiff, the complaint determines what you litigate, but since the State — the Federal Court sitting in the State takes judicial notice of the state law, they would know that the state law is against you.

William J. Brennan, Jr.:

As I understand, it was not judicial notice.

It was an affirmative defense.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

I underst —

William J. Brennan, Jr.:

Either the defendants?

Constance Baker Motley:

That’s right.

Felix Frankfurter:

I understand that.

I understand all that.

It isn’t too obscure for me to understand it.

What I’m saying is that a state court in Mississ — where is it, in Georgia.

Constance Baker Motley:

It’s Tennessee.

Felix Frankfurter:

In Tennessee, I beg your pardon.

That the — that state court would take judicial notice of the local law and the Federal Court takes judicial notice of the local law.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

And they would understand what you did just as to whether you do understood it namely that you regard the state law as non-existing —

Constance Baker Motley:

That’s right.

Felix Frankfurter:

— because it subverts the federal law.

Constance Baker Motley:

That’s right.

Felix Frankfurter:

Therefore, this is a case in which you asked for a declaration of rights as against the existing state law.

Earl Warren:

Ms. Motley, do you — do you know whether counsel objects to hear the pro — procedure you now propose?

Constance Baker Motley:

No, sir.

I do not know what I’m —

Earl Warren:

You — you do not?

Constance Baker Motley:

— object to this — this proposal.

Earl Warren:

I see.

Can I ask the counsel without asking for your argument, now, if counsel does object to — to sending it back under Bailey to the District Court?

Frank B. Gianotti, Jr.:

Mr. Chief Justice, as Your Honor well knows the city attorney had available authority to — to be merely seeing anybody and after that it was not tried in every way possible could be helpful but I just don’t know if counsel will fully explain and hand down just exactly what their position is, it may leave with their answers in some doubt away which you read last night the Bailey case.

Earl Warren:

Yes.

Earl Warren:

Well, we won’t ask you to make your argument now.

We — I just thought that if there was no disagreement that we probably were using up valuable time.

Frank B. Gianotti, Jr.:

If I could this at — some change in some issue in this.

Earl Warren:

Yes, yes.

That’s alright.

Excuse me, Ms. Motley.

Constance Baker Motley:

I’d like to save the remaining time for rebuttal.

I think I only have about five minutes.

Earl Warren:

You may do that.

Mr. Gianotti.

Frank B. Gianotti, Jr.:

May it please, Your Honor and Members of the Court.

A attention has been called to the rule of court. Perhaps, we should’ve made a previous application since Mr. Heiskell, who represents Dobbs Houses, and I who represents the City of Memphis, while in some respect, we’re on the same side, he still has his position and the City of Memphis has its position.

If — if I may make application this time on behalf of myself and also Mr. Heiskell, we can arrange a division of time anyway that will suit, Your Honor.

Earl Warren:

Well, we only — don’t usually do it to summary case but we will do it in this —

Frank B. Gianotti, Jr.:

Thank you, Your Honor.

Earl Warren:

You has — you may divide your time.

Frank B. Gianotti, Jr.:

May it please the Court.

The —

Hugo L. Black:

I hope that as soon as you can as far I am concerned if you respond to the suggestion that Bailey case covers it or that you state — state your position on it.

Frank B. Gianotti, Jr.:

Well, we will, of course, concern as to the position that counsel would take.

I’m not quite sure that I — I fully understand it.

On the first reading or second reading or three readings of the Bailey case, it might appear that — that part of the ground had been lifted out from under our position.

On the other hand, we would like briefly to make this statement, in an attempt to point out the difference as we see, as indicated already by Justice Frankfurter in the Burton case, which as has been stated, was not on the books at the time Judges Martin, Boyd and Miller filed the decision in this case which closely followed Harrison versus NAACP.

In other words, the District Court, three-judge court felt that on the basis of the expressions contained in the Harrison case, the fact that the — all sides of the case were apparently fully discussed among the members of this Court, that the premise seem to be present to the three-judge court, that Harrison should be followed.

We’re having at some concern frankly in — in trying to analyze the case decided on yesterday where no mention is made of Harrison.

And the language used not only in the majority opinion but also in the dissenting opinion in the Harrison case, it seemed to leave no doubt but that where you had statutes that had not been authoritatively decided by a state court and to meet the test usually applied in abstention cases, some three or four are member.

There hasn’t a friction for instance.

There’s one, as I remember, and some others at the — the matter should be decided by a state court.

If I may digress for just a moment —

Hugo L. Black:

Well, that wouldn’t be —

Frank B. Gianotti, Jr.:

Sir?

Hugo L. Black:

That wouldn’t be necessary, would it, if in the facts to both sides who admit it, showed beyond dispute that the situation existed in connection with the transportation facilities which existed in the Bailey case?

I could begin —

Frank B. Gianotti, Jr.:

I necessarily, Your Honor, it’s already been indicated here.

May it please Your Honor that for example, it might well be contended that the regulation, you see there two statutes involved.

Originally, it was a city ordinance which is out of the record.

Well, I will be gladly explaining it if the Court —

Hugo L. Black:

Would it — would it bother you — would it bother you to state precisely at this time what you think the record shows that we have to consider as the facts from each sides?

Frank B. Gianotti, Jr.:

From each what?

Hugo L. Black:

From both parties.

The common ground between them as to the effects on how this is operated, this facility, is it an interstate facility?

Frank B. Gianotti, Jr.:

Yes, it takes on both interstate and intrastate.

In other words, the rest of it and Mr. Heiskell, of course, will speak for himself on that but, briefly, patrons use it who are not in interstate commerce.

Hugo L. Black:

Do interstate —

Frank B. Gianotti, Jr.:

It is an attractive place for people who go and dine and watch airplanes take off and land.

So — this complaint made no point that the plaintiff Turner was an interstate commerce.

There is no statement in the record other than in the affidavit in connection with an application for summary judgment.

The original complaint as filed made no mention of the interstate commerce whatsoever.

Now, the point I was trying to get to in order to develop our thinking on this one point and has been briefly have mentioned I think by Justice Frankfurter or one of the other justices when they talk about the — the basis for the regulation.

Now, it could very well be that this regulation as adopted by the Department of Conservation in the State of Tennessee has nothing to do with sanitation.

In other words, it’s distinctly unconnected with it or completely unconnected with it in every way so that it is quite possible as did happen in the Streetcar case which this Court had in New Orleans, Evers versus Dwyer.

The facts briefly veiled that when this Court sent in it back because of this standing, and by the way Evers versus Dwyer, as Your Honors well know is referred to in the Bailey case.

It’s one of the points, but when it went back, the transit company which was then owned by a private operation, decided voluntarily to desegregate.

I — I’m trying to point out, may it please, Your Honor, just how quickly sometimes these things will resolve and you don’t have quite problem that you think you do but you have to do it under a judicial manner.

As elected or as appointed officials, it is in my very humble opinion, almost impossible to take a position.

You neither agree — you neither satisfy my friends on the left nor do you satisfy your friends on the right.

Hugo L. Black:

May I ask you if the record shows by your admission that this is an airport that people come in there on interstate union to eat at this place that the city has leased it, the city has — the city’s agent has passed the regulation that (Voice Overlap) required segregation.

Frank B. Gianotti, Jr.:

No, sir.

The city has not passed the regulation.

Hugo L. Black:

What — what is the —

Frank B. Gianotti, Jr.:

And if the state law, sir that —

Hugo L. Black:

The state law?

Frank B. Gianotti, Jr.:

Yes, the state —

Hugo L. Black:

The state — the commissioner?

The — the —

Frank B. Gianotti, Jr.:

Department of Conservation of the State of Tennessee.

Hugo L. Black:

State of Tennessee?

Frank B. Gianotti, Jr.:

Yes.

Hugo L. Black:

Well, I — I don’t care which one it is.

Frank B. Gianotti, Jr.:

I understand.

Hugo L. Black:

The state has bar — has required segregation under law of the State in this airport which people use by interstate and then transit passengers to come into and get served?

Frank B. Gianotti, Jr.:

On that particular sta — statute, the answer is yes.

The other statute involved is a permissive type statute which gives to Dobbs House its right to serve whomsoever it may choose to serve.

Now, we would like to keep in mind the fact that the cases cited in counsel’s brief and the cases alluded to by this Court, the Boynton case and the Burton case have both been state cases.

They’re going up through the state processes and that was a way I was trying — a point I was trying to make just a moment ago.

When the criminal courts of Shelby County refused to issue warrants against local transit officials for violating the segregation bus laws, still on the books of the State of Tennessee, segregation on buses automatically ended in that particular case much quicker, much faster than the method suggested by Ms. Motley in this case.

In other words, we found ourselves in an entirely different position that is the City of Memphis, we were abiding by the — the three-judge court of Martin — Judges Martin, Miller and Boyd in Evers versus Dwyer which also was an abstention ruling and an order to that effect in that case.

It is out of the picture.

It has since — the case has since been disposed off by a motion to dismiss it, but my point is that the action which terminated bus segregation in Memphis came about as the result of the action of a state court rather than a federal court.

Potter Stewart:

Or — as a result of inaction of the — of the executive part of your municipality, is that it?

Frank B. Gianotti, Jr.:

Well, the faith — no, well, in action, yes, on the part from a recommending standpoint on the office of the City Attorney.

In other words, if I may briefly say, it — it felt — we felt that it was more than we should assume to say to the Chief of Police or to his honor or anyone, “Yes, you have a right to issue a warrant charging X with viola — violating the segregation laws of the State of Tennessee.”

We would not make such a statement.

When we refused to make it, those who have different ideas from the ideas expressed and contended for by Ms. Motley and her clients, they went into and attempted to get warrant issued but our local courts refused to issue the warrant. It’s been the policy of Tennessee in numerous cases.

Judge Neill in the Old United Artist case and the famous Curley case, which came to this Court by a certiorari, certiorari was denied but Judge Neill in that case specifically point out that color was not a factor and would not be considered by the Supreme Court of the State of Tennessee.

In a very recent case where (Inaudible) which was cited to the briefs and a covenant involving the sale to colored people, the same position was taken by the Supreme Court of Tennessee.

So I think we should have no fear if the Courts of Tennessee will decide these statutes, both of them, the permissive type statute somewhat similar to the Burton statute in Delaware and the other statute.

If that statute on its face is — is bad, then, they should have no hesitancy in doing what the three-judge court directed that they do, simply file the suit in the state court.

Felix Frankfurter:

Are you saying — let’s see if I understand you.

Are you saying that if state officials take action under what they think is state law when in fact the action they take is violative of state law, does not give a right of — of — does not bring a case to the Federal Court because the State as a state, thinking of it that way, and apart from the official who disregarded the — the governing law of the State, the State has not deprived anybody of anything, is that what you say?

Frank B. Gianotti, Jr.:

In a way, yes, sir.

Yes, sir.

Felix Frankfurter:

We — we — to me — I’m afraid — I’m afraid that the decisions of the Court in that argument has never been able to understand the answer to that argument, but the answer has been made by controlling decisions.

That was way back in cases in which I have dissented in which if state officials violate what is deemed to be state law, in the opinion by Justice Holmes, how can you say the State has done anything.

It’s — because all you have to do is to get your right recognized but I’m afraid that has ceased to be the law of this Court.

Frank B. Gianotti, Jr.:

Well, the point that we’re trying to make is, may it please Your Honor, if given —

Felix Frankfurter:

May I give a fraction of knowing that you’ve made of —

Frank B. Gianotti, Jr.:

If given an opportunity —

Felix Frankfurter:

— a good ordinance —

Frank B. Gianotti, Jr.:

If given an opportunity, we say that the public officials of the City of Memphis have acted in good faith and within the terms of this Court’s opinion in the Brown case.

Now, we feel that — that is officials feel that we are entitled to a consideration based on the leverage field.

When the record shows, in the City of Memphis, that there has been desegregation on buses, that there has been desegregation on the school placement law in the Board of Education, there has been desegregation in the libraries, there has been a plan submitted in the Park Commission.

We’ve had some six to seven of these cases, the city officials have moved along with this policy in mind that we will work within the law as determined by the Courts.

Felix Frankfurter:

Are you —

Frank B. Gianotti, Jr.:

And we will then uphold the law as declared by the Courts.

Yes, sir?

Felix Frankfurter:

— can I add that — can — can I add that up to say that what you’re saying is the these particular officials of this restaurant — these officials had been disobedient of your state law, is that what you say?

Frank B. Gianotti, Jr.:

On the face of it — on the face of it, yes, if they served these people, they are disobedient to the state law.

Mr. Heiskell, I don’t think I want to take all of his time and he will speak for that, may it please the Court.

Felix Frankfurter:

But it’s all in the city — against whom is this bill?

Frank B. Gianotti, Jr.:

It’s against both the City of Memphis and Dobbs House.

May I take the position Justice Frankfurter that they are sending to a rare —

Felix Frankfurter:

Well are you saying —

Frank B. Gianotti, Jr.:

— if they op — if they operate in a manner not authorized by the state law. We say that if we permit them to operate then, we are being subjected, that is the official to the City of Memphis are being subjected to criticisms.

Not more than a week ago, if I make — make this brief (Inaudible), they were over a hundred people at the Mayor’s office asking the Mayor and the City Attorney why the licenses of some six or seven large department stores in the Mem — in the City of Memphis who have — which had opened their restaurants on a non-segregated basis why their licenses to serve food were not revoked.

The only answer we could give, may it please the Court was that this matter set in the Supreme Court of the United States next Monday and that Court will note them from under decision.

But we were not in the position to say to His Honor or to the city commissioners, “Yes, you have a right to revoke those licenses,” I said that if the City Attorney’s office said that, it would not be the right thing to do in — in my opinion and we have not said it.

Earl Warren:

Your name sir?

I didn’t —

John M. Heiskell:

Heiskell, John Heiskell.

John M. Heiskell:

Representing the —

Earl Warren:

Mr. Heiskell, you may — you may proceed.

John M. Heiskell:

The Dobbs House restaurants operate the airport restaurant in Memphis under a lease from the City of Memphis.

One of the provisions of that lease provides that it shall be used — both portion of it shall be used for an unlawful purpose.

In the third offense set up by the City of Memphis in answer to the complaint filed in this cause, they state the regulation issued pursuant to statute by the Department of State Government which requires the segregation of restaurants in Tennessee, which regulation may not be constitutional but which has not then passed on at this point by any court with regard to its constitutionality.

The city sets up that regulation as existing state law and says as a part of their defense that if Dobbs Houses desegregates their restaurants, they will consider it a violation of Clause 20 of the lease which is the Unlawful Use Clause and that the lease will be subject to forfeiture.

Now, we have sought on behalf of Dobbs Houses and we thought the doctrine announced by the three-judge court was appropriate in that the constitutionality of that regulation should be decided by a state court.

We are still at that opinion, but we have been brought in — in the position and are in the position that if we desegregate the restaurant without having that regulation passed upon, the city has announced in the formal pleadings filed below that it will seek a forfeiture of the lease which Dobbs Houses holds.

Now, we have said that we think it is appropriate for the state courts to pass on it.

The ju — declaratory judgment procedures are available to these plaintiffs that we — we don’t want to be in the position of litigating with the city or being prosecuted in the state courts if that procedure is followed then it has been declared that they consider it violative of the law of the State of Tennessee if we permit the restaurant to be operated in that manner.

And we say that we are very definitely of the opinion that this is a matter for the state courts.

The State Courts of Tennessee have shown no reluctance to follow the mandates of constitutional law laid down by this Court and other cases and we think that is the simple and expeditious way to dispose it.

Thank you.

Earl Warren:

Well, let me ask you this.

I notice that in the fourth defense in the city’s answer and the third defense of the — no, fourth defense of — of your answer on behalf of the restaurants is that regardless of what the Courts of Tennessee do in declaring that — that law unconstitutional, you will still maintain your restaurant in this manner because you have a private right to — right to do it and you will not be governed by that by any subsequence because the Fourteenth Amendment doesn’t apply to you.

John M. Heiskell:

I cannot argue that in view of subsequent decisions of this Court that we have that right.

Earl Warren:

Yes.

John M. Heiskell:

I think that the cases that have been decided by these Court, the Delaware case —

Earl Warren:

Yes.

John M. Heiskell:

— is — deprives me of being able to make any argument to that effect or to sue it by as my client.

Earl Warren:

But the city still maintains that?

John M. Heiskell:

I can’t —

Earl Warren:

They do in their answer.

John M. Heiskell:

Yes, sir but I say we —

Felix Frankfurter:

But the answers were all filed before Burton, is that correct?

John M. Heiskell:

Yes, sir.

That’s correct.

All of the answers were filed before Burton.

We did not have it — I cannot persist in any defense that has been made other than the dilemma of having what is presumed to be a constitutional statute on the books of Tennessee which the city has said, if we violate, they will consider it a forfeiture of our lease.

Now, so far as the personal right to determine that in an airport restaurant, we do not persist in that position and I could not so advice the point.

William J. Brennan, Jr.:

Well, I gather Mr. Heiskell, if the City were now to say, we agree Burton and Bailey or both means that we can’t sustain the constitutionality of the regulation and therefore, our defense — your defense now would fall, wouldn’t it?

John M. Heiskell:

I would say thi —

William J. Brennan, Jr.:

Because everybody concedes that.

John M. Heiskell:

I would say this now that we would still be subject to arrest by state authority for violating what is on the books as a valid state statute until judicially declared unconstitutional.

William J. Brennan, Jr.:

And you want a court decision to say it?

John M. Heiskell:

Yes, sir.

William J. Brennan, Jr.:

You prefer the state court rather than a federal court?

John M. Heiskell:

We thought that that would be the way that these matters should be handled expeditiously that — rather than burden this Court with each of the —

William J. Brennan, Jr.:

But we have it here now.

We have the burden.

John M. Heiskell:

I — very — please –[Laughter]

Felix Frankfurter:

Mr. Heiskell, as I understand it, you now withdraw your claim of right to segregate on racial lines and accept the Burton decision —

John M. Heiskell:

Yes.

Felix Frankfurter:

And say you’re within it, is that right?

John M. Heiskell:

I — I cannot say to the contrary.

Felix Frankfurter:

As I understand it, you can’t defer but as I understood you, after the position of the city solicitor, with reference to the city.

John M. Heiskell:

I —

Earl Warren:

Let us ask — let us ask if that is the situation.

John M. Heiskell:

We have no right to rely on that statute.

The City of Memphis does not have that in its defense.

That is his defense without having the — on this statute

Felix Frankfurter:

No, no, no, but as I understood you, as I have listen to you to no effect and no avail, as I understood you, it was your position that in view of the decisions of this Court and the responses made with reference of them by the Supreme Court of Tennessee it is your position that segregation on racial law with any of the governmental authorities of the State of Tennessee are no longer within — are no longer defensible by state law — under state law.

John M. Heiskell:

But I said, may it please the Court, that that should be determined by a state court, —

Felix Frankfurter:

I understand that.

But — but you are not here to argue affirmative defense there.

You’re not here —

John M. Heiskell:

Except the Burton case and the Bailey where decisions of a state court and as I remember the well, as Your Honor’s remarks in the Burton case, Ms Motley that I would always thought to defend would — was make it slowly and I think, Your Honor used his words generally to that effect in the Burton case.

Felix Frankfurter:

Well are you still standing on the defense to which the Chief Justice referred?

John M. Heiskell:

On the state statute, yes sir.

Felix Frankfurter:

You mean you — you defend that as Court —

John M. Heiskell:

If the Court please the defense that we have in there is the regulation of the Department of Conservation.

We have not pleaded in the other section that Mr. Heiskell has pleaded because that’s a permissive type of statute though.

Felix Frankfurter:

What’s the relevant —

John M. Heiskell:

Not applicable to the City of Memphis.

Felix Frankfurter:

What’s the relevance and as before the — the references you made to the various decisions by your Supreme Court accepting Brown against the Board and all that followed?

What is the —

John M. Heiskell:

I used Brown, may it please Your Honor —

Felix Frankfurter:

I’m not — I’m just trying to find out what your position was.

John M. Heiskell:

— was left for deliberate speed argument only not with the other.

Hugo L. Black:

I understood you to say you did not have authority to agree —

John M. Heiskell:

That was the first question that Chief Justice asked me —

Hugo L. Black:

And you were pointing this out that you had tried — the city had tried to make the law in other respect but you didn’t have authority to commit it here on this proceeding.

John M. Heiskell:

That’s correct.

Earl Warren:

Now, may I ask you specifically then, please, whether you stand on — on your fourth defense or whether you are prepared to withdraw it at this time.

That fourth defense reads as follows, “this defendant averse that even if the above cited regulation of the State of Tennessee should be voided, Dobbs Houses Incorporated operates the restaurant at the Memphis Municipal Airport as a private ci — facility to which the Fourteenth Amendment does not apply and the operator has the legal right to enforce any rules and policies which it deems desirable in regard to the seating of patrons including the right to seek and serve patrons in separate areas because of race and color.

This defendant as above stated is advised that Dobbs Houses Incorporated does maintain separate eating areas for the Negro and white races in its dining room.”

John M. Heiskell:

If I — I understand Your Honor, I think that do what Dobbs House does under that defense, is Dobbs House business, we exercise no control on them.

Earl Warren:

I beg your pardon?

John M. Heiskell:

I say, what Dobbs House does under a similar defense that they have raised is a choice, it’s a permissive.

The City of Memphis can exercise no control over.

Earl Warren:

Well, but you’ve raised it as the defense.

I asked you —

John M. Heiskell:

Well, on —

Earl Warren:

I asked you if you waive that —

John M. Heiskell:

— is advised.

Earl Warren:

— if you waive that defense.

John M. Heiskell:

Well, It’s — it’s not strictly speaking that defense may it please Your Honor because he says this defendant as above stated is advised that they are doing it under the 1875 Act.

It’s not anything that the City of Memphis does.

Earl Warren:

No, you don’t say advice.

You say this defendant averse that even if the ordinance is voided, that Dobbs operates the restaurant at the Memphis Airport as a private facility to which the Fourteenth Amendment does not apply and the operator has the legal right to enforce any rules and policies which it deems desirable to regard in the seating of patrons and so on.

John M. Heiskell:

I’m like — is an officer to this Court, if I can limit my position that way, I am bound by the same statement that Mr. Heiskell is bound.

Of course, that defense was raised prior to other decisions of this Court.

Does that answer Your Honor?

Earl Warren:

Well, that answers it all.

Constance Baker Motley:

May it please the Court.

I would just like to summarize the appellant’s position and that is that we feel that this case is governed by Bailey in that here also is involved a transportation facility and that as this Court pointed out in Bailey, its prior decisions which were in existence when this answer was filed made clear that any state enforced segregation in a transportation facility was unconstitutional.

So that we think that the law was settled at the time this answer was filed in this case as result of the prior decisions of this Court.

So that we are asking the Court to dispose of this case in the same manner in which it disposed of the Bailey case by sending it to the District Court and saying your own — your only authority in this case, in light of our prior decisions and certainly now, in the light of Bailey and Burton is to grant the criminal injunction requested because the facts are conceded.

And we’ve set forth in our brief all of the facts which we think make this case almost identical with Burton.

These are the facts which the Court sees from the lease in this case which the city attached to its answer.

And when the city attached that to its answer we moved for summary judgment that there was no dispute that this was a public restaurant.

Now, the plaintiff got a three-judge court in this case over his objection.

The record makes it clear that we argued that this was not a three-judge court case and the argument and summaries that’s in the record and we pointed out that we — we thought the law was settled that no three-judge court was required here so that they — when we got these three-judge court, we got to delay in the enforcement of the constitutional right involved here which was not the full to the plaintiff.

And we think that they require us to now pursue the appeal in the Court of Appeals when the question here is well settled and will only penalize this plaintiff or appellant further with more delay which was not caused by the plaintiff in his original pleading.

We argued against it.

We did not ask for a three-judge court.

We got it as a consequence.

We got this long delay in the enforcement of a simple constitutional right which I think was clear from the day we filed this complaint that this appellant was entitled to.