Simkins v. City of Greensboro, Civ. No. 1058.

• Decision Date: 20 March 1957
• Docket Number: Civ. No. 1058.
• Citation: 149 F. Supp. 562
• Court: U.S. District Court — Middle District of North Carolina
• Parties: George SIMKINS, Jr., Phillip W. Cook, Leonidas Wolf, Samuel Murray, Arthur Lee, Jr., Lonnie Reynolds, William Holmes, Elijah Herring, Joseph Studivent, James Hagins, Plaintiffs, v. The CITY OF GREENSBORO, The Greensboro City Board of Education, and the Gillespie Park Golf Club, Incorporated, Defendants.

149 F. Supp. 562

George SIMKINS, Jr., Phillip W. Cook, Leonidas Wolf, Samuel Murray, Arthur Lee, Jr., Lonnie Reynolds, William Holmes, Elijah Herring, Joseph Studivent, James Hagins, Plaintiffs, v. The CITY OF GREENSBORO, The Greensboro City Board of Education, and the Gillespie Park Golf Club, Incorporated, Defendants.

Civ. No. 1058.

United States District Court M. D. North Carolina, Greensboro Division.

March 20, 1957.

Kennedy & Kennedy, Winston Salem, N. C., for plaintiffs.

Herman C. Wilson, City Atty., H. J. Elam, III, John F. Yeattes, Jr., Robert F. Moseley, and Robert S. Cahoon, Greensboro, N. C., for defendants.

HAYES, District Judge.

The City of Greensboro and the Greensboro City Board of Education concede that they cannot own and operate the Gillespie Park Golf Course for the public and exclude the plaintiffs and other Negro citizens of Greensboro from these privileges on account of their color.

Although the golf course has been available to the public for many years, whether by design of otherwise, Negroes have been denied the enjoyment of the privilege.

The City of Greensboro, before Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, in an effort to comply with Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, erected in the City of Greensboro a nine hole golf course for Negroes, known as Nocho Park Golf Course but it cannot be deemed the equivalent of an 18 hole golf course like Gillespie Park Course which was restricted to white people.

The Board of Education leased the land it did not need for school purposes at the time to the City of Greensboro. Through Works Progress Administration, which furnished 65% of the cost, the City of Greensboro built the last nine holes and agreed not to sell or lease for private use this public property during its life of usefulness.

Some of the Negro citizens applied to the city authorities for permission to play on the Gillespie Park Course in 1949 and, because of opposition on the part of local citizens against Negroes playing on the course, after some negotiation, the City of Greensboro and City Board of Education entered into a lease contract whereby the entire golf course was leased to Gillespie Park Golf Club, a non-profit corporation which was organized solely for the purpose of taking the lease and maintaining and operating the course as a public golf course. G.S.N.C. § 55-11.

It is true the directors met with a quorum at first and fixed $60 for annual membership which permitted them to play without paying additional fees; also authorized $1 membership who would pay $1.25 green fees on holidays and weekends, and 75¢ on other days.

The records of the corporation do not disclose sufficient data to show if rules were really established and enforced in respect to membership. The evidence does clearly show that white people were allowed to play by paying the green fees without any questions and without being members. When Negroes asked to play, they were told they would have to be members before they could play and it clearly appears that there was no intention of permitting a Negro to be a member or to allow him to play, solely because of his being a Negro.

The six plaintiffs presented themselves at the desk of the man in charge of the golf course and laid down 75¢ each and asked to play, the first named plaintiff being a dentist and practicing his profession in Greensboro. But they were not given permission to play. They insisted on their right to play and played three holes. While playing the third hole, the manager came and ordered them to leave and they refused to go unless an officer arrested them. Whereupon the manager swore out a warrant charging each with trespass upon which they were tried, convicted and sentenced to 30 days in jail, the statutory limit, from which an appeal is pending in the Supreme Court of North Carolina.

The Negroes have not only been denied the privilege of the golf course but there is no intention on the part of the defendants to permit them to do so unless they are compelled by order of court.

This case presents two questions for determination. First are plaintiffs, being citizens and taxpayers of the City of Greensboro, entitled to the privilege of playing on the defendant's golf course as long as it is owned and used for the convenience of the citizens of Greensboro? Second. Can the defendants avoid giving equal treatment to the plaintiffs in the use of the facility by leasing it to a private corporation or can the lessee deny plaintiffs the right to play solely on account of color and thereby accomplish a result which is denied to the owner.

It is conceded that the defendants ordinarily are not required to furnish a golf course for its citizens. If, however, it undertakes to do it out of the public treasury, it cannot constitutionally furnish the facility to a part of its citizens and deny it to others similarly situated. The plaintiffs as citizens of the City of Greensboro are entitled to the equal protection of the law and cannot be deprived of their rights solely on account of color. The doctrine of Plessy v. Ferguson, supra, of equal but separate facility has been overruled in Brown v. Board of Education, supra.

Before Brown v. Board of Education, supra, the Supreme Court held that the election laws of the State could not be delegated to a political organization and empower it to deny Negroes the right to participate in the primary, and the action of such an agency was State action within the meaning of the Fourteenth Amendment and that the discrimination against the Negroes violated the Amendment. Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 484, 487, 76 L.Ed. 984. The members of the Supreme Court who declared that law were Chief Justice Hughes, and Associate Justices Brandeis, Stone, Roberts and Cardozo. It is appropriate to quote from Justice Cardozo's opinion:

"The test is whether they are to be classified as representatives of the state to such an extent and in such a sense that the great restraints of the Constitution set limits to their action.

"With the problem thus laid bare and its essentials exposed to view, the case is seen to be ruled by Nixon v. Herndon, supra 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759, Delegates of the State's power have

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