Curtis v. Tozer

• Decision Date: 15 January 1964
• Docket Number: Nos. 31777,s. 31777
• Citation: 374 S.W.2d 557
• Parties: In the Matter of Robert B. CURTIS et al., Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City of St. Louis, Respondents. In the Matter of Louis FORD, Ian Grand, Benjamin Goins, Roberta Tournour, Taylor Jones, Kenneth Lee and Ronald Glenn, Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City of St. Louis, Respondents. In the Matter of Michela GRAND, Daniel Pollack, and James Peake, Jr., Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City of St. Louis, Respondents. to 31779.
• Court: Missouri Court of Appeals

Page 557

374 S.W.2d 557

In the Matter of Robert B. CURTIS et al., Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City

of St. Louis, Respondents.

In the Matter of Louis FORD, Ian Grand, Benjamin Goins,

Roberta Tournour, Taylor Jones, Kenneth Lee and Ronald Glenn, Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City

of St. Louis, Respondents.

In the Matter of Michela GRAND, Daniel Pollack, and James

Peake, Jr., Petitioners, v. Martin L. TOZER, Sheriff of the City of St. Louis, and William Boeger, Warden of the Municipal Jail, City

of St. Louis, Respondents.

Nos. 31777 to 31779.

St. Louis Court of Appeals, Missouri.

Jan. 15, 1964.

Robert E. Wilson, Jr., Robert L. Witherspoon, Clyde S. Cahill, Jr., Joseph S. McDuffie, Wyvetter Hoover Younge, Emanuel Williams, Robert E. Ratermann, Margaret Bush Wilson, St. Louis, for petitioners in Nos. 31777, 31778.

Wyvetter Hoover Younge, St. Louis, Billy Jones, East St. Louis, Ill., for petitioners Michela Grand, Daniel Pollack and James Peake, Jr.

Wayne L. Millsap, John P. Montrey, Wm. M. Howard, St. Louis, for respondents.

PER CURIAM.

Original proceedings in habeas corpus. Petitioners seek their release from detention by the respondent Sheriff and the respondent Warden who hold the petitioners in compliance with certain orders of the circuit court following an adjudication by that court that petitioners were guilty of criminal contempt. The sentences and fines imposed vary among the 19 petitioners and will be fully set out later herein.

The circuit court had issued an injunction pertaining to certain activities at or near the Jefferson Bank and Trust Company in the City of St. Louis, and the contempt citations arose out of alleged violations of that injunction. These alleged violations occurred upon different dates and involved different petitioners on each date. Thus, our No. 31,777 encompasses the 9 petitioners who are alleged to have first violated the injunction; No. 31,778 refers to the 7 petitioners who are alleged to have next committed contemptuous acts; and No. 31,779 encompasses the petitions for habeas corpus filed by the 3 alleged contemnors whose acts, in point of time, last occurred.

It seems wise to place those facts applicable to all 3 consolidated files in some sort of chronological perspective. The petitioner Curtis wrote a letter dated August 14, 1963 to the Jefferson Bank and Trust Company which he signed 'Chairman of CORE.' The first paragraph of that letter reads as follows: 'As a result of our conversation last week and the report given by Rev. Charles Perkins and me, the Saint Louis Committee of Racial Equality voted to take direct action against Jefferson Bank if four full time Negroes are not hired in clerical or teller positions within two weeks.' Under date of August 27th, the bank replied in a letter signed by its attorney in which it stated reasons for rejecting the proposal that it hire 4 Negro employees within the time stated in Curtis' letter. Briefly put, these were that it did not need 4 additional employees to do the work it had; that it did not have applications from 4 qualified Negroes seeking such employment; that it was unwilling to discharge other employees to make room for these 4 Negro employees; that to do so would in itself be discrimination, rendering the demands in violation of the Fair Employment Practices Act of the City of St. Louis. The courts of events is illustrated by a paragraph in that letter stating: 'The bank has now been informed, through the local press, that your organization intends to take 'direct action' against the Jefferson Bank from 4:00 to 6:00 p. m. on Friday, August 30th. This 'direct action' has been described by you to include sit-ins, stand-ins and lie-ins which may interfere with the conduct of the business of the bank during critical hours of its operation.' The letter concluded by urging CORE not to hold such demonstrations.

Seeking to avoid what it considered to be the harmful effect of such demonstrations, the bank made a verified application on August 29th to the circuit court for a temporary restraining order. The style of the proceedings in which all of the orders herein referred to were entered is of some importance. It reads:

'JEFFERSON BANK AND TRUST COMPANY, a corporation,

'-vs- 57945-E

'ROBERT B. CURTIS, WILLIAM L. CLAY, CHARLES R. OLDHAM and MARIAN OLDHAM, LUCIEN RICHARDS, RICHARD DALY, WALTER HAYS, REV. CHARLES PERKINS, NORMAN SEAY, HERMAN THOMPSON, MELVIN WEST, Individually and as representatives of a class known as St. Louis Committee of Racial Equality.'

The temporary restraining order was issued and the defendants ordered to show cause on September 26th why a temporary injunction should not be granted. The Sheriff's return shows that on August 30th his office served a copy of this temporary restraining order upon the petitioners Curtis, Clay, Marian Oldham, Richards, Perkins, Seay, and Thompson. The return also recites the service upon 3 other persons not herein petitioners, and that he also delivered copies to '* * * eleven unknown persons (John Doe) located in the vicinity * * *' of the bank.

The temporary restraining order required the defendants to 'desist and refrain' from the following acts until the hearing of and ruling upon the order to show cause:

'(a) Physically hindering, obstructing, interfering with, delaying, molesting or harassing other persons desiring to enter plaintiff's banking premises, from entering said premises for the purpose of conducting their business with plaintiff or for any other purpose.

'(b) Congregating or loitering individually or in groups inside plaintiff's banking premises and therein engage in any acts or conduct of whatsoever character which interferes with, intimidates, harasses, hinders and annoys plaintiff's employees in the performance of their duties or other persons in the conduct of their business with plaintiff or which in any way interferes with the proper and normal conduct of plaintiff's banking business.

'(c) Physically hindering, obstructing, interfering with, intimidating or in any other manner preventing customers or plaintiff and other members of the public from having the usual and customary access to tellers' windows located in plaintiff's banking premises or access to any other department or portion of said banking premises wherein plaintiff conducts its banking business.'

The temporary restraining order required a bond in the amount of $10,000.00 and the records of the court show this bond posted and approved. The injunction bond need not herein be set out, but will be specifically referred to later in connection with the petitioners' contentions that it was fatally defective.

We pass now to a consideration of the nine applications consolidated in 31,777. On the 29th of August when the bank filed its verified petition for the temporary restraining order, the court caused the petitioner Charles R. Oldham to be notified. He appeared before the court and, being an attorney, entered his appearance as attorney for the St. Louis Committee of Racial Equality. The court, by agreement with Oldham and the bank's attorney, set a hearing on the restraining order for 10 a. m., August 30th. At that hearing the petitioner, Raymond Howard, an attorney and also a member of the St. Louis Committee of Racial Equality, entered his appearance on behalf of petitioners Charles and Marian Oldham, Curtis, and also on behalf of 3 others not now petitioners.

The verified petition for the citation for contempt recites the application for a restraining order and the entry of appearance by Oldham and that by Howard. It further states that the court had issued a restraining order, the bond had been posted, and Howard advised that the restraining order was in full force and effect by 4 p. m. on August 30th. It then reads as follows:

'7. That at approximately 4 o'clock P.M. August 30, 1963, certain of the defendants appeared at plaintiff's place of business accompanied by more than one hundred persons, including children, and acting in concert and under the direction and supervision of the defendants herein named, sang, paraded, chanted and shouted in and around plaintiff's place of business, locked arms in front of the entrance to plaintiff's place of business, entered in and upon plaintiff's place of business and did then and there walk in, sit in and lie in the lobby of plaintiff's place of business so that the customers of the plaintiff were prevented, hindered and delayed from having access to the tellers' windows at plaintiff's bank and congregated and loitered individually and in groups forcefully and unlawfully inside plaintiff's banking premises, all in violation of the Temporary Restraining Order of this Court entered as aforesaid.'

The petition for the citation then alleges that the petitioners were each personally served with a copy of the restraining order or, in the alternative, had notice of that order by having it read to him or her; that these petitioners intentionally violated the restraining order even though they had full and complete knowledge of the order; that acts which where performed by petitioners were accomplished while the petitioners had full knowledge that those acts constituted a violation of the restraining order; and that the petitioners' acts were for the deliberate purpose of 'defeating' the restraining order and constituted a 'direct, willful and deliberate violation' of that order. The prayer was that a citation for contempt be issued, directing the petitioners Curtis, Clay, Oldham, Mrs. Oldham, Richards, Perkins, Seay, Thompson and Howard to appear on September 3, 1963 and show cause why they '* * * should not be punished for said contempt and why your petitioner should not recover its costs and expenses herein and in its behalf, including attorney's fees to be...