MIZE, District Judge.
The plaintiffs in this case are Samuel Bailey, Joseph Broadwater and Burnett L. Jacob, each of whom is an adult Negro citizen of the United States and the State of Mississippi, who filed their complaint herein on June 9, 1961. The defendants in the case as shown by the amended complaint are Joe T. Patterson, The City of Jackson, Allen C. Thompson, Douglas L. Luckey, W. D. Rayfield, Jackson Municipal Airport Authority, Continental Southern Lines, Inc., Southern Greyhound Lines, Illinois Central Railroad, Inc., Jackson City Lines, Inc., Cicero Carr. Each of the defendants has filed an answer to the amended complaint, setting out their defenses. The issues are clearly defined by these pleadings. The amended complaint was in substance a substitution of the original complaint.
It is the contention of the plaintiffs that Sections 2351, 2351.5, 2351.7, 7784, 7785, 7786, 7786-01, 7787, and 7787.5 of ^the Code of Mississippi of 1942 are un- ' constitutional; that the defendants are seeking to enforce these statutes; and that a preliminary injunction should be issued enjoining the defendants and each of them and their successors from enforcing any of these statutes or any other statutes requiring racial segregation on common carriers or in the facilities maintained by common carriers. Plaintiffs further contend that the defendant City of Jackson and its officials are enforcing an ordinance of the City of Jackson adopted January 12, 1956, and contend that this ordinance of the City is unconstitutional on its face, but that notwithstanding its unconstitutionality, the defendants, City of Jackson and its officials, have threatened to enforce this ordinance against the plaintiffs and members of their class. Plaintiffs further contend that the defendants and each of them, acting under color of the laws of the State of Mississippi and under color of Sections 2087.5, 2087.7 and 2089.5 of Mississippi Code of 1942, have pursued and will continue to pursue a policy and custom of segregation of Negro and white persons on common carriers in the State of Mississippi unless restrained, and they contend further that they have no other speedy or adequate remedy at law other than by injunction. Plaintiffs pray for the organization of a three-judge court as required by Title 28 U.S. [597]*597C. § 2284, and pray for the issuance of a preliminary and permanent injunction enjoining each of the defendants from enforcing or attempting to enforce any of the aforementioned statutes or any other statute of the State of Mississippi requiring segregation; pray for an injunction enjoining the City of Jackson or any of its officers from enforcing any of the ordinances of the City of Jackson hereinabove referred to; to enjoin the defendants and each of them from continuing to enforce any policy or custom under color of State law or City ordinances of segregating Negro and white passengers on common carriers or in facilities maintained by any common carrier, from continuing to enforce any policy or custom of segregating the races in the facilities and services of the Jackson Municipal Airport or its restaurant operated by Cicero Carr, and from continuing to arrest, intimidate or threaten to arrest members of their class in connection with the exercise of their Federally protected right to use inter and intra state transportation and services without segregation or discrimination because of .their race.
The defendants and each of them in their answers deny that they are enforcing or attempting to enforce any of the ^statutes against the plaintiffs or any of their class because of their race. Defendants contend that this is the type of action wherein the Federal Court should abstain from passing on these statutes until the State courts have first had an opportunity to pass on its own laws and city ordinances.
All the defendants contend that no injunction should issue against either of the defendants. More specifically, the defendant Joe T. Patterson contends that this is not properly a class action; that the amended complaint raises factual and legal controversy involving unsettled questions of state law which should properly be decided first by the Supreme Court of Mississippi in order to avoid unnecessarily deciding constitutional questions, and that there is a full and adequate procedure existing in the state tribunals of the state for the plaintiffs to assert all of their rights and privileges claimed by this suit; and that none of the laws of the State of Mississippi that are complained of in the amended complaint have ever been presented to the highest tribunal or any other court of the State of Mississippi for adjudication. The Attorney Genera] further contends that in effect this suit against the Attorney General in his official capacity is an action against the State of Mississippi, which, under the provisions of the Eleventh Amendment to the Constitution could not be maintained without its consent, and further, that the complaint attacks the enforcement of parts of the criminal laws of the State of Mississippi which have been passed in the sovereign capacity of the State for the purpose of protecting all persons of the state against domestic violence, and undertakes to prevent the enforcement of the ordinances of the City of Jackson and to prevent the State officials of Mississippi from enforcing Sections 2087.5,2087.7 and 2089.5 of the Mississippi Code of 1942. (These statutes are set out in Appendix I) He contends that these statutes are constitutional and are not being unconstitutionally enforced. He further contends that this action constitutes an attempt to control the law enforcemet officials of the City of Jackson, as well as the State of Mississippi in the exercise of their valid discretionary powers and authority.
The defendants, City of Jackson and Allen Thompson, its Mayor, the Commissioners and Chief of Police contend that the amended complaint raises primarily factual issues and that the primary issue raised by the amended complaint involves the arrest of the so-called Freedom Riders under Section 2087.5 et seq. of the Code of 1942 and that the arrest of the Freedom Riders was legitimate and in accord with these sections, and that these sections were not unconstitutionally enforced. They contend specifically that there was no effort to enforce segregation laws by the arrests, but simply to maintain law and order and to prevent-breaches of the peace. They further con[598]*598tend that this Court should abstain from passing on the constitutionality of these Acts until passed upon by the Supreme Court of Mississippi and contend, also, that the City of Jackson is an agency of the State of Mississippi and, therefore, not subject to suit.
The defendants, Continental Southern Lines, Inc., Southern Greyhound Lines, Illinois Central Railroad, Inc., Jackson City Lines, Inc., Jackson Municipal Airport Authority and Cicero Carr contend that they have not caused the arrest of anyone and that they are not seeking to enforce the segregation laws of the State of Mississippi, and contend that no injunction should issue against them, for the reason that the plaintiffs have a full, complete and adequate remedy at law to redress, any grievances they may have.
Briefly, these are the main contentions of the respective parties as reflected by the pleadings in this case.
The majority of the Court has reached the conclusion that under the issues as raised by the pleadings in this case it is the duty of this court to abstain from passing on the issues, but retain the cause of action on its docket and remit the plaintiffs to the State Courts of Mississippi for a prior adjudication of the issues and of the scope and meaning of its own statutes as so defined. This Court should simply stay its hand until the adequate and proper remedies provided for by the statutes of the State of Mississippi should be exhausted. By this procedure the comity existing between the Federal Courts and the State Courts would be maintained without any serious injury to anyone. With the exception of Sections 2351 and 7784 1, the sections of the Mississippi Code complained of and the constitutionality of which is under attack herein have never been passed upon by the Supreme Court of Mississippi. These sections 2351, 2351.5, 2351.7, 7784, 7785, 7786, 7786-01, 7787, and 7787.5 of the Mississippi Code of 1942 as amended are set out in Appendix II to this opinion. Before this Court should pass upon the constitutionality of these statutes in this, particular case, wherein it is shown by the contentions of the parties that there will be factual issues as well as the constitutionality of the statutes'involved, the courts of the State of Mississippi should, be afforded an opportunity to pass upon them. . •
This equitable principle of abstention, is well supported by the decisions of the Supreme Court of the United States; as. well as by many of the decisions of the-various Courts of Appeal ahd District. Courts. It will not be necessary to refer to all the decisions that have adhered to-this doctrine, but the quotations from a. few of the leading cáses will be decisive.. Probably the one most nearly in poiiit is. the case of Harrison, Attorney General of Virginia et al. v. National Association for the Advancement of Colored People et al., 360 U.S. 167, 79 S.Ct. 1025, 1030, 3 L.Ed.. [599]*599'2d 1152, in which it was held by the Supreme Court of the United States that the Federal Courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the State Courts have been afforded a reasonable opportunity to pass upon them. The •Court said:
“According every consideration to the ■opinion of the majority below, we are nevertheless of the view that the District Court should have abstained from deciding the merits of the issues tendered it, so as to afford the Virginia courts a reasonable opportunity to construe the three ■statutes in question. * * *
“This now well-established procedure is aimed at the avoidance of unnecessary interference by the federal courts with proper and validly administered state concerns, a course so essential to the balanced working of our federal system. To minimize the possibility of such interference a ‘scrupulous regard for the rightful independence of state governments * * * should at all times actuate the federal courts,’ Matthews v. Rodgers, 284 U.S. 521, 525 [52 S.Ct. 217, 76 L.Ed. 447], as their ‘contribution * * * in furthering the harmonious relation between state and federal authority * * *.’ Railroad Comm. v. Pullman Co., 312 U.S. 496, 501 [61 S.Ct. 643, 85 L.Ed. 971]. In the service of this doctrine, which this Court has applied in many different contexts, no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them. See e. g., Railroad Comm. v. Pullman Co., supra; Chicago v. Fieldcrest Dairies, Inc., 316 U.S. 168 [62 S.Ct. 986, 86 L.Ed. 1355]; Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101 [65 S. Ct. 152, 89 L.Ed. 101]; American Federation of Labor v. Watson, 327 U.S. 582 [66 S.Ct. 761, 90 L.Ed. 873]; Shipman v. DuPre, 339 U.S. 321 [70 S.Ct. 640, 94 L. Ed. 877]; Albertson v. Millard, 345 U.S. 242 [73 S.Ct. 600, 97 L.Ed. 983]; Government & Civic Employees v. Windsor, 353 U.S. 364 [77 S.Ct. 838, 1 L.Ed.2d 894]. This principle does not, of course, involve the abdication of federal jurisdiction, but only the postponement of its exercise ; it serves the policy of comity inherent in the doctrine of abstention; and it spares the federal courts of unnecessary constitutional adjudication. See Chicago v. Fieldcrest Dairies, Inc., supra, [316 U.S.] at pages 172-173 [62 S.Ct. at page 988].
“The present case, in our view, is one which calls for the application of this principle, since we are unable to agree that the terms of these three statutes leave no reasonable room for a construction by the Virginia courts which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.”
The Court said, further: “We do not intimate the slightest view as to what effect any such determinations might have upon the validity of these statutes. All we hold is that these enactments should be exposed to state construction or limiting interpretation before the federal courts are asked to decide upon their constitutionality, so that federal judgment will be based on something that is a complete product of the State, the enactment as phrased by its legislature and as construed by its highest court.”
Just as was said by the Supreme Court of the United States, supra, we do not in this case undertake to pass upon any of the issues that have been raised, nor do we intimate whether the statutes are constitutional or unconstitutional, for the reason that the courts of the State of Mississippi should be permitted to pass upon these questions, uninfluenced by any adjudication or intimation of ours as to the statutes. We have given careful consideration not only to the opinion of the majority of the Court in that case and the governing rule announced by it, but we also have considered the thinking of Mr. Justice Douglas, who dissented, in which [600]*600he was joined by the Chief Justice and Mr. Justice Brennan, whose opinion set out the history and doctrine, considering also the decisions cited in the dissenting opinion. However, as a general rule, every lawsuit must be determined by the issues raised in the pleadings in the particular case, and it is our view that in this particular case, where the constitutionality of the statutes of Mississippi is questioned and has never been passed upon by the highest court of the State, a sound discretion requires that the federal courts abstain. In the case of Spector Motor Co. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 154, 89 L.Ed. 101, the Supreme Court used this language:
“If there is one doctrine more deeply rooted than any other in the process of constitutional adjudication, it is that we ought not to pass on questions of constitutionality — here the distribution of the taxing power as between the State and the Nation — unless such adjudication is unavoidable. And so, as questions of federal constitutional power have become more and more intertwined with preliminary doubts about local law, we have insisted that federal courts do not decide questions of constitutionality on the basis of preliminary guesses regarding local law.” (Citing authorities.)
In connection with Harrison v. N. A. A. C. P., supra, see the many authorities cited in the dissenting opinion of Judge Sterling Hutcheson, N. A. A. C. P. v. Patty, 159 Fed.Supp. 503, 535, with reference to abstention. In that exhaustive dissent he reviews at page 540, et seq., the many authorities upholding this doctrine of abstention.
We are in thorough accord with the opinion of the Court of the Fifth Circuit in the case of Empire Pictures Distributing Company, Inc. et al. v. City of Fort Worth et al., 273 F.2d 529, 531, in which the Court upheld the doctrine of abstention and quotes at length from many of the applicable authorities to that doctrine, and particularly applicable to the issues raised in the case here. In that ease the Court said: “At the threshold of the case lies the question whether the trial court ought not sua sponte to have withheld action ‘while the parties repaired) to a state tribunal for an authoritative declaration of applicable state law.’ ” The Court then, in a very able opinion, and exhaustive, cited the many authorities, quoting from a number of them to the effect that the trial courts should have abstained. We shall not quote at length from that opinion more than to say that we adopt it as announcing the controlling principles of the law governing us in abstention in this case. In the earlier case of Railroad Comm, of Texas et al. v. Pullman Company et al., 312 U.S. 496, 61 S.Ct. 643, 645, 85 L.Ed. 971, the Supreme Court of the United States said:
“Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, Fenner v. Boykin, 271 U.S. 240 [46 S.Ct. 492, 70 L.Ed. 927]; Spielman Motor Co. v. Dodge, 295 U.S. 89 [55 S.Ct. 678, 79 L.Ed. 1322]; or the administration of a specialized scheme for liquidating embarrassed business enterprises, Pennsylvania v. Williams, 294 U. S. 176 [55 S.Ct. 380, 79 L.Ed. 841]; or the final authority of a state court to interpret doubtful regulatory laws of the state, Gilchrist v. Interborough Co., 279 U.S. 159 [49 S.Ct. 282, 73 L.Ed. 652] ; cf. Hawks v. Hamill, 288 U.S. 52, 61 [53 S.Ct. 240, 77 L.Ed. 610]. These cases reflect a doctrine of abstention appropriate to our federal system whereby the federal courts, ‘exercising a wise discretion,’ restrain their authority because of ‘scrupulous regard for the rightful independence of the state governments’ and for the smooth working of the federal judiciary. See Cavanaugh v. Looney, 248 U.S. 453, 457 [39 S.Ct. 142, 63 L.Ed. 354]; Di Giovanni v. Camden Ins. Ass’n, 296 U.S. 64, 73 [36 S.Ct. 1, 80 L.Ed. 47], This use of equitable powers is a contribution of the courts in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers.”
[601]*601We think the above authorities and those cited below 2 along with those mentioned in the various opinions in the eases supra are ample to require that the federal court abstain.
Moreover, the doctrine of abstention is peculiarly applicable in this case because of the attack made upon Sections 2087.5, 2087.7 and 2089.5 of the Mississippi Code of 1942, generally known as the peace statutes. All the authorities hereinbefore cited are applicable to these statutes, "but there are other authorities which we think are just as applicable and for that reason we are treating these separately. As shown by the pleadings, the plaintiffs are contending that the defendants are using these statutes to enforce segregation and the defendants are contending that these statutes are constitutional and are not being used to enforce segregation, but are being used for the purpose of protecting the public against violence and disturbance of the peace. This Court, in the case of Wykcoff, had an occasion to pass upon a petition for habeas corpus growing out of the arrest of one of the ■“Freedom Riders” in the City of Jackson, wherein it was contended by the petitioner in that case that this statute was being used to enforce segregation. Her petition for the writ of habeas corpus alleged that she was convicted of violation of Section 2087.5 of the Mississippi Code and that she did not have any remedy at law other than the writ of habeas corpus to secure her release, and that her imprisonment was a denial of her due process of law under the Fifth and Fourteenth Amendments to the Constitution of the United States. The respondent, the Sheriff of Hinds County, in answering the petition for the writ, averred that she was convicted in a court having jurisdiction and that he was holding the petitioner by virtue of a commitment from that court. The matter was heard before the Court of the Southern District of Mississippi and the writ denied. She immediately petitioned the Court of Appeals for the Fifth Circuit for an appeal in forma pauperis, that the petition be granted and the case advanced. The Court of Appeals denied the petition and since the opinion has not been published, a copy of the opinion rendered by the Court is attached hereto in Appendix III.
In the trial before the lower court it was contended by petitioner that she had no adequate remedy at law, which contention was not upheld, as it was shown that under the statutes of Mississippi particularly she did have a full, adequate and speedy remedy at law and these statutes are set out in the opinion of the District Court. Application of Wyckoff, 196 F. Supp. 515, 517. In that case the Court did retain jurisdiction, but since the petitioner did have adequate remedy at law, the writ was denied. In that opinion the Court said: “As heretofore stated, the Federal Courts are very reluctant indeed to interfere with the orderly process of a State Court involving state matters.” And cited the cases of Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469.
It is true that upon an application for a writ of habeas corpus there is a federal statute which prohibits the federal courts from interfering with the state courts, except in those cases specifically authorized by Congress. However, the principle involved is the same, since it is the general doctrine that the federal courts should not lend their equitable powers and injunctive powers until the state courts first have passed upon the constitutionality of its own acts. Section 2283, [602]*602Title 28 U.S.C.A. prohibits a court of the United States from granting an injunction to stay proceedings in a state court except as expressly authorized by the Act of Congress, or when necessary in aid of its jurisdiction, or to protect and effectuate its judgments. In view of that statute the writ of habeas corpus was denied in the Wyckoff case, and citing -in support thereof; Empire Pictures Distributing Co. v. City of Fort Worth, 5 Cir., 273 F.2d 529; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324.
At pages 163-164 of the City of Jeannette case in 319 U.S., at page 880 of 63 S.Ct., supra, the Supreme Court of the United States said:
“The power reserved to the states under the Constitution to provide for the determination of controversies in their courts may be restricted by federal district courts only in obedience to Congressional legislation in conformity to the Judiciary Article of the Constitution. Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws subject to review by this Court of any federal questions involved. *3fr # -Jfr
“ * * * No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guaranties, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for injunction. * * * Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury ‘both great and immediate.’ * * *
“ * * * It does not appear from, the record that petitioners have been threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith, or that a federal court of equity by withdrawing the determination of guilt from the state courts could rightly afford petitioners any protection which they could not secure by prompt trial and appeal pursued to this Court.”
The principles announced in the Jeannette ease have been reaffirmed on the-basis of that case and the Stefanelli case, Stefanelli v. Minard, 342 U.S. 117, 123-124, 72 S.Ct. 118, 96 L.Ed. 138, in two-Supreme Court eases decided this year: Wilson v. Schnettler et al., 365 U.S. 381,. 81 S.Ct. 632, 5 L.Ed.2d 620, and Pugach v. Dollinger, 365 U.S. 458, 81 S.Ct. 650, 5 L.Ed.2d 678. These cases are discussed more at length in the Wyckoff case, 196 F. Supp. 522-523.
The whole question of State-Federal' relationships and their history is discussed in a recent decision of the Court of Appeals for the Fifth Circuit in Smith. 6 Son, Inc. v. Williams, 275 F.2d 396. Beginning on page 402 will be found a. large number of cases applicable to the-questions before us.
Statutes generally known as peace statutes exist in most of the States of the Union and have been applied under a. variety of circumstances in recent times. They have been used by the officers of the States and subdivisions thereof to-prevent violence and more serious offenses where people have gathered, or are threatening to gather in númbers under pressure of emotional stress. The public press carried an account recently [603]*603-of a congregation of a large number of white people when Negroes sought to make use of bathing beaches at or near •Chicago. It was stated that the state • officers made use of loud speakers to or•der the crowd to leave the scene or be . subject to imprisonment under state laws. It was not hinted that those who had col-, Elected did not have the full right to be 'where they were. Acting under state .peace statutes, the officers simply required them to move on, because in their judgment their presence was likely to lead to a breach of the peace. The scope -and reach of such statutes varies from state to state, and their application to a given situation makes a peculiar call on :the judgment of state tribunals before such application should be tested in a court of the United States.
The situation disclosed by the facts in this record fall, in our opinion, directly within the scope of the decisions of the Supreme Court requiring abstention until the State courts have decided the full meaning of their respective statutes and their application to the situations which are presented to us.
The record before us shows the pend-ency of a number of proceedings before the State Courts of Mississippi under the peace statutes, and the class for which the plaintiffs here purport to act is already participating in state court proceedings where all of the questions raised before us may be fully presented with the right of appeal to the Supreme Court of the United States.
An order will be entered, therefore, abstaining from further • action in this cause to give the State Courts of Mississippi a reasonable opportunity to act either in the cases already pending or in any new- case which any of the parties may elect to commence.
APPENDIX I
Statutes Involved
Mississippi Code of 1942
§ 2087.5 — “1. Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby:
' “(1) crowds or congregates with others in or upon shore protecting structure or structures, or a public street or public highway, or upon a public sidewalk, or any other public place, or in any hotel, motel, store, restaurant, lunch counter, cafeteria, sandwich shop, motion picture theatre, drive-in, beauty parlor, swimming pool area, or any sports or recreational area or place, or any other place of business engaged in selling or serving members of the public, or in or around any free entrance to any such place of business or public building, or to any building owned by another individual, or a corporation, or a partnership or an association, and who fails or refuses to disperse and move on, or disperse or move on, when ordered so to do by any law enforcement officer of any municipality, or county, in which such act or acts are committed, or by any law enforcement officer of the State of Mississippi, or any other authorized person, or
“(2) insults or makes rude or obscene remarks or gestures, or uses profane language, or physical acts, or indecent proposals to or toward another or others, or disturbs or obstructs or interferes with another or others, or
• “(3) while in or on any public bus, taxicab, or other vehicle engaged in transporting members of the public for a fare or charge; causes a disturbance or does or says, respectively, any of the matters or things mentioned in subsection (2) supra, to, toward, or in the presence of any other passenger on said vehicle, or any person outside of said vehicle or in the process of boarding or departing from said vehicle, or any employee engaged in and about the operation of such vehicle, or
“(4) refusing to leave the premises of another when requested so to do by any owner, lessee, or any employee thereof, “shall be guilty of disorderly conduct, which is made a misdemeanor, and, upon conviction thereof, shall be punished by a fine of not more than two hundred dol[604]*604lars ($200.00), or imprisonment in the county jail for not more than four (4) months, or by both such fine and imprisonment ; and if any person shall be guilty of disorderly conduct as defined herein and such conduct shall lead to a breach of the peace or incite a riot in any of the places herein named, and as a result of said breach of the peace or riot another person or persons shall be maimed, killed or injured, then the person guilty of such disorderly conduct as defined herein shall be guilty of a felony, and upon conviction such person shall be imprisoned in the Penitentiary not longer than ten (10) years.
“2. The provisions of this act are supplementary to the provisions of any other statute of this state.
“3. If any paragraph, sentence, or clause of this act shall be held to be unconstitutional or invalid, the same shall not affect any other part, portion or provision of this act, but such other part shall remain in full force and effect.” Source: Laws of 1960, c. 250.
§ 2087.7 — “1. It shall be unlawful for any person or persons, while in or on the premises of another, whether that of an individual person, or a corporation, or a partnership, or an association, and on which property any store, restaurant, sandwich shop, hotel, motel, lunch counter, bowling alley, moving picture theatre or drive-in theatre, barber shop or beauty shop, or any other lawful business is operated which engaged in selling articles of merchandise or services or accommodation to members of the public, or engages generally in business transactions with members of the public, to:
“(1) prevent or seek to prevent, or interfere with, the owner or operator of such place of business, or his agents or employees, serving or selling food and drink, or either, or rendering service or accommodation, or selling to or showing merchandise to, or otherwise pursuing his lawful occupation or business with, customers or prospective customers, or other members of the public who may then be in such building, or
“(2) prevent or seek to prevent, or interfere with, or seek to interfere with, other persons, expressly or impliedly invited upon said premises, or prospective customers, coming into or frequenting such premises in the normal course of the operation of the business conducted and carried on upon said premises,
“shall be guilty of disorderly conduct, a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail for not more than six (6) months, or by both such fine and imprisonment.
“2. The provisions of this act are supplementary to the provisions of any other statute of this state.
“3. If any paragraph, sentence, or clause of this act shall be held to be unconstitutional, or invalid, the same shall not affect any other part, portion or provision thereof, but such other part shall remain in full force and effect.” Source: Laws of 1960, c. 260.
§ 2089.5 — “1. Any person who disturbs the public peace, or the peace of others, by violent, or loud, or insulting, or profane, or indecent, or offensive, or boisterous conduct or language, or by intimidation, or seeking to intimidate any other person or persons, or by conduct either calculated to provoke a breach of the peace, or by conduct which may lead to a breach of the peace, or by any other act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished by a fine of not more than five hundred dollars ($500.00), or by imprisonment in the county jail not more than six (6) months, or both.
“2. The provisions of this act are supplementary to the provisions of any other statute of this state.
“3. If any paragraph, sentence or clause of this act shall be held to be unconstitutional or invalid, the same shall not affect any other part, portion or provision thereof, but such other part shall remain in full force and effect.” Source: Laws of 1960, c. 254.
[605]*605APPENDIX II
§ 2351 — “If any person or corporation operating a railroad shall fail to provide two or more passenger cars for each passenger train, or to divide the passenger cars by a partition, to secure separate accommodations for the white and colored-races, as provided by law, or if any railroad passenger conductor shall fail to assign each passenger to the car or compartment of the car used for the race to which the passenger belongs, he or it shall be guilty of a misdemeanor, and, on conviction shall be fined not less than twenty dollars nor more than five hundred dollars.” Source: Code of 1892, § 1276.
§ 2351.5 — “Every railroad company, bus company or other common carrier for hire owning, maintaining or operating a passenger depot, bus station or terminal where a waiting room for passengers is maintained and operated shall cause to be constructed and maintained in connection with such reception or waiting room two closets or retiring or rest rooms to be exclusively used by white passengers in intrastate commerce arriving and departing from such depot, bus station or terminal and the following notice shall be painted or shown in bold letters on the door of one: ‘Rest room, white female only in intrastate travel,’ and on the other: ‘Rest room, white male only in intrastate travel;’ and likewise two closets or retiring or rest rooms shall be constructed and maintained for colored passengers in intrastate travel with like signs painted or shown in bold letters on the doors thereof, substituting the word ‘colored’ for ‘white,’ and such owner or operator shall see that the closets or rest rooms are equally clean and in equally good sanitary condition.
“No white person shall enter, frequent, occupy or use the colored closets or rest rooms required by this act, and no colored person shall enter, frequent, occupy or use the white closets or rest rooms required by this act, except, however, regularly employed persons of the owner or operator of the passenger depots, bus stations or terminals may enter such closets or rest rooms in the discharge of their assigned duties.
“Any person violating the provisions of this act shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars ($1,-000.00) or confined in jail for not more than one year, or both.” Source: Laws of 1956, c. 259.
§ 2351.7 — “1. Any person traveling in intrastate travel by rail, bus, airline or other common carrier for hire who knowingly or wilfully enters or attempts to enter the waiting room not marked and provided for persons other than his or her race as required by law, shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars ($1,000.00) and imprisoned in jail not more than sixty (60) days, or both such fine and imprisonment.
“2. No white person shall enter, frequent, occupy or use the colored waiting room of any depot, bus station or terminal when such waiting room is marked in bold letters as required by law; and no colored person shall enter, frequent, occupy or use the white waiting room of any depot, bus station or terminal when same is marked in bold letters as required by law, except, however, regularly employed persons of the owner or operator of depots, bus stations or terminals may enter same in the discharge of their assigned and required duties.
“Any person violating the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not more than one thousand dollars ($1,000.00) and imprisoned in jail for not more than one year, or both.
“3. No action or suit in law or in equity may be brought in any court of this state against any law enforcement officer for damages for false arrest of any passenger because of a violation of this act, nor shall any common carrier of passengers, or its employees be subject to suit for damages on account of such com[606]*606xnon carrier of passengers or its employees complying with the provisions of this act.
“4. In the event any part or parts of this act shall be held unconstitutional, the remaining portion of this act shall remain in full force and effect.” Source: Laws of 1956, c. 260.
§ 7784 — “Every railroad carrying passengers in this state shall provide equal but separate accommodations for the white and colored races by providing two or more passenger cars for each passenger train, or by dividing the passenger cars by a partition to secure separate accommodations ; and the conductor of such passenger train shall have power, and is required, to assign each passenger to the car, or the compartment of a car, used for the race to which such passenger belongs; and should any passenger refuse to occupy the ear to which he or she is assigned by the conductor, the conductor shall have power to refuse to carry such passenger on the train, and for such refusal neither he nor the railroad company shall be liable for damages in any court.” Source: Code of 1892, § 3562.
§ 7785 — ‘‘All persons or corporations operating street railways and street or municipal buses, carrying passengers in this state, and every common carrier by motor vehicle of passengers in this state as defined by section 3(e) of chapter 142 of the laws of 1938 (§ 7634, Code of 1942), shall provide equal, but separate, accommodations for the white and colored races.
“Every common carrier by motor vehicle of passengers in this state, as defined by section 3(e) of chapter 142 of the laws of 1938 (§ 7634, Code of 1942), by buses or street cars operated entirely within the corporate limits of a municipality, or within a radius of 5 miles thereof, shall divide its passengers by the use of an appropriate sign 4x9 inches, for the purpose of, and in a manner that will ‘suitably provide for, a separation of the races, and all other buses and motor vehicles carrying passengers for hire in the state of Mississippi shall use a latticed movable partition extending from the top of the seat to the ceiling of the vehicle, said partition not to obstruct the view of the driver of the vehicle to secure such separate accommodations; provided, however, that this act shall not apply to buses operated exclusively for the carrying of military personnel; and the operators of such passenger buses shall have power, and are required, to assign each passenger to the compartment of the bus used for the race to which such passenger belongs; and in no case shall any passenger be permitted to stand in the aisle of the compartment in which he does not belong and is not so assigned; and should any passenger refuse to occupy the compartment to which he or she belongs and is assigned, the operator shall have power to refuse to carry such passenger on the bus; or should either compartment become so loaded in transit as not to permit the taking on of any further passengers for that compartment, then the bus operator shall not be required and shall refuse to take on any further passengers in violation of this act. Even though such additional passengers may have purchased and may hold tickets for transportation on the said bus, the only remedy said passengers shall have for failure or refusal to carry them under such circumstances is the right to a refund of the cost of his ticket, and for said refusal in either case neither the operator nor the common carrier shall be liable for damages in any court. Such partition may be made movable so as to allow adjustment of the space in the bus to suit the requirements of traffic.” Source: Code of 1906, § 4060.
§ 7786 — “The operators of such street cars and street buses and motor vehicles, as defined by chapter 142 of the laws of 1938 (§§ 7632-7687, Code of 1942) shall have power and are required to assign each passenger to the space or compartment used for the race to which such passenger belongs.
“Any passenger undertaking or attempting to go into the space or compartment to which by race he or she does not belong shall be guilty of a misdemeanor, [607]*607and upon conviction, shall be liable to a fine of twenty-five dollars ($25.00), or, in lieu thereof, by imprisonment for a period of not more than thirty (30) days in the county jail; and any operator of any street car or street bus or motor vehicle as herein defined, assigning or placing a passenger to the space or compartment other than the one set aside for the race to which said passenger belongs shall be guilty of a misdemeanor and, upon conviction, shall be liable to a fine of twenty-five dollars ($25.00), or, in lieu thereof, to imprisonment for a period of not more than thirty (30) days in the county jail.” Source: Code of 1906, § 4061.
§ 7786.01 — “Every person or corporation operating street railways and street or municipal buses, carrying passengers in this state, and every common carrier of passengers in this state by motor vehicle, as defined by section 3(e) of chapter 142 of the laws of 1938 (§ 7634, Code of 1942), guilty of wilful and continued failure to observe or comply with the provisions of this act shall be liable to a fine of twenty-five dollars ($25.00) for each offense, and each day’s violation of the provision hereof shall constitute a separate violation of this act; provided, however, that in the case of persons or corporations operating street railways and street or municipal buses, the fine shall be ten dollars ($10.00) instead of twenty-five ($25.00). Source: Laws of 1944, c. 267.
§ 7787 — “All officers and directors of street railway companies who shall refuse or neglect to comply with the provisions and requirements of the two preceding sections shall be deemed guilty of a misdemeanor, on conviction shall be fined not less than one hundred dollars or be imprisoned in the county jail not less than sixty days, and not more than six months, and any conductor or other employee of such street car company having charge of the same, who shall refuse or neglect to carry out the provisions of this chapter shall, on conviction, be fined not less than twenty-five dollars or be imprisoned in the county jail for not less than ten days nor more than thirty days for each and every offense; provided, that nothing herein contained shall be construed as applying to nurses attending children of the other race.” Source: Code of 1906, § 4062.
§ 7787.5 — “1. In all passenger depots, bus stations or terminals owned, operated or leased in the State of Mississippi by a railroad company, bus company or any other common carrier of passengers, the owner or operator thereof shall cause to be constructed and maintained waiting or reception rooms as will secure the comfort of the passengers.
“In such depots, bus stations or terminals there shall be constructed, provided and maintained for the white intrastate passengers a separate waiting or reception room, on each entrance to which shall be painted or shown in bold letters the following: — ‘White waiting room, intrastate passengers’; and in such depot, bus station or terminal there shall be constructed, provided and maintained a separate waiting or reception room for the color intrastate passengers, on each entrance to which shall be painted or shown in bold letters the following: — ‘Colored waiting room, intrastate passengers.’
“2. Any common carrier of passengers for hire or any railroad or bus company, whether an individual or corporation, which fails or refuses to comply with the provisions of this act shall be liable in the penal sum of one thousand dollars ($1,000.00) per day for each day of such ■failure or refusal, to be recovered by suit filed in the county in which such depot, bus station or terminal is situated, by either the attorney general, the district attorney of the district, or the county attorney of the county in which said passenger depot, bus station or terminal is situated, and such suit shall be brought in the circuit court of the county in which said passenger depot, bus station or terminal is situated.
“In addition to the penalty provided herein, the Attorney General of the State of Mississippi or the district attorney of the district, or county attorney in the county in which said depot, bus station [608]*608or terminal is situated may file suit in the chancery court of such county for a mandatory injunction to compel compliance with the provisions of this act, and the chancery court of any county wherein the provisions of this act are not complied with shall have jurisdiction to issue an injunction to require compliance with this act, and to hold in contempt of court any railroad company, bus company or any other common carrier of passengers failing to comply with the orders and decrees of the court directing compliance with this act.
“3. The requirements of this act shall not be applicable to any person, firm or corporation operating a place of business wherein said person, firm or corporation acts only as ticket agent for a bus company or other common carrier in addition to his regular business and wherein no passenger waiting room or reception room is maintained.” Source: Laws of 1956, c. 258.
APPENDIX III
In the United States Court of Appeals for the Fifth Circuit
In the Matter of: ELIZABETH PORTER WYCKOFF For a Writ of Habeas Corpus_
Before TUTTLE, Chief Judge, and JONES and WISDOM, Circuit Judges.
BY THE COURT.
The petitioner herein seeks an order authorizing her to appeal from an order entered July 6, 1961, entered by the United States District Court for the Southern District of Mississippi, and moves for permission to proceed on her appeal upon the original papers filed in said District Court. Petitioner further moves for an immediate hearing of said appeal.
Petitioner asserts that she was arrested “for entering the white waiting room at the Continental Bus Terminal, Jackson, Mississippi, in the company of other interstate passengers of the Negro race, was sentenced on June 5, 1961, to two months imprisonment in the Hinds County jail, suspended, and a fine of $200 for violating Section 2087.5, Mississippi Code of 1942, As amended.”
Petitioner asserts that because of the short term of her detention, and “the clear violation by respondent of the constitution and laws of the United States, the requirements that she must first exhaust her state remedies would, in effect, deny her the right of habeas corpus, in a situation where it was the sole effective remedy with which to safeguard her statutory and constitutional rights and liberties.”
It no where appears in the petition that the petitioner has attempted to exhaust remedies available to her in the courts of the state of Mississippi, or that there is either an absence of available state remedies or that other circumstances exist which render such state remedies ineffective to protect the rights of the prisoner.
The jurisdiction of a federal court is fixed by the Acts of Congress. 28 U.S. C.A. § 2254, provides as follows:
Ҥ 2254. State custody; remedies in State courts. An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.
“An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.”
It not appearing from anything asserted in the petition in this case that petitioner sought to appeal her conviction, which she alleges to have been void and unconstitutional, or that she is financially unable to make bond pending such appeal, and it not appearing that petitioner has [609]*609no right to test her detention by habeas corpus in the state courts of Mississippi, there appears to be no sound reason for this Court to grant petitioner’s motion for expediting the hearing in this Court. There thus appears to be no sound reason for granting petitioner’s motion for permission to appeal upon the original papers, since no allegations are contained in the petition asserting petitioner’s financial inability to cause the record to be prepared in accordance with the rules of this Court.
The motions are, therefore, denied.