JOHN R. BROWN, Circuit Judge.
This case presents again the question of asserted unlawful segregation of races in the Railroad Terminal Station at Birmingham, Alabama. After a trial following our remand, Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, the District Court denied all relief sought by the Negro plaintiffs against the City Commissioners, the Alabama Public Service Commission, and the Birmingham Terminal Company, a private corporation.
The fact findings after a full trial come here with the insulation of F.R.Civ.P. 52(a), 28 U.S.C.A. While we reach a conclusion contrary to that of the District Court, we do so on the basis of the facts which are substantially without controversy. We do not credit any evidence either expressly or impliedly rejected py the District Judge.
We think that a basic error in the District Court’s action was the assumption that all that was involved was forcible segregation of the races and not other practices related to race and color which were equally impermissible under the Fourteenth Amendment and the Civil Rights Acts, 42 U.S.C.A. § 1981, § 1983. As to each defendant this led the Court to focus on the issue of whether segregation was compulsory. Finding, as it did, that while separate facilities were to be and were furnished for the use of the races, neither the Commission, the City nor the Terminal coercively compelled occupancy of one to the exclusion of the other, the Court concluded that no case was made out. No doubt this was the main thrust of the plaintiff’s complaint as the analysis of it in our prior opinion reflects. But this approach failed to take into account or properly evaluate in the light of federal constitutional requirements the virtually uncontradict-ed state action in which race was the significant factor. It also seems quite clear that despite Browder v. Gayle, D.C.M.D. Ala.1956, 142 F.Supp. 707, affirmed 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, the defendants, if not the Court, labored under the misconception that race as an impermissible basis for distinction related to
interstate
commerce only and not to
intrastate
passengers.
The significant physical facts are simple and undisputed. The Terminal, a private corporation owned by specified railroads serving Birmingham, maintains a passenger station for arriving and departing passengers. This includes waiting rooms and the usual facilities for travelers as well as those of the public who are there awaiting the arrival or departure of passengers. There are two main but separate waiting rooms. Each is directly accessible through separate entrances on the track side of the depot and the street side. Over at least one entrance on the track concourse side, and again on the street side, signs were posted marking one as the Negro waiting room and the other for whites. As to one, the legend in large letters read:
“Colored Intrastate Passengers Waiting Room.”
Over the other the sign read:
“Waiting Room Interstate and White Intrastate Passengers.”
The Public Service Commission.
Whether, as suggested by the Terminal, the signs are merely intended by it as an invitation to each of the races to occupy these facilities separately provided in order to permit voluntary acceptance of traditional social customs of the South is not significant so far as the Commission is concerned. The Commission, an arm of the State of Alabama, pursuant to a specific statute is authorized to
require
separate waiting rooms.
And it has done so by mandatory official regulation published as early as 1923
Moreover, because of intervening decisions forbidding racial discrimination as to facilities employed in interstate commerce
the Commission in 1956 made the requirement even more emphatic. Of dominant significance for our purposes, the Commission’s new Order T-21 required, for the first time, the posting of signs — in lettering of “contrasting color” clearly visible for at least fifty feet — to mark the separate rooms maintained for each of the races.
The Commission both in its contentions generally and in objections to admissibility of the regulations,
recognized that as to interstate commerce neither the statute nor the regulations could survive in the face of the contrary and superior rulings (see note 5, supra). But as to intrastate passengers it either took the view that somehow the regulation was valid or at least the Baldwins as victims of discrimination during interstate commerce were not in a position to assert this as a class suit for intrastate travelers.
But the vice here is not the impermissible distinction between
inter
and mirastate commerce or even the absence of an explicit purpose coercively to compel segregated occupancy (as distinguished from the maintenance of separate rooms). What is forbidden is the state action in which color (i. e., race) is the determinant. It is simply beyond the constitutional competence of the state to command that any facility either shall be labeled as or reserved for the exclusive or preferred use of one rather than the other of the races. Certainly the state may not directly or through a municipality prescribe that a certain area of the city is to be inhabited by Negroes, another by whites, or that such areas are to be so marked even though no sanctions are imposed as to occupancy. Cf. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Harmon v. Tyler, 1926, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing 160 La. 943, 107 So. 704, first appeal 158 La. 439, 104 So. 200; Buchanan v. Warley, 1917, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. The factor of race is irrelevant from a constitutional viewpoint. Boson v. Rippy, 5 Cir., 1960, 285 F.2d 43 and see especially supplemental opinion [December 7, 1960]. And in testing state action, we have recognized that there may be need of the “protection of a court order making certain that the factor of race would not be a consideration. * * * ” and that there be “a decree of the trial court prohibiting the consideration of * * * race * * * as a relevant factor * * * ” Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370, 375.
This is not to say that integration in all activities must be govemmentally compelled. We, and others, have clearly indicated to the contrary. City of Montgomery, Alabama v. Gilmore, 5 Cir., 1960, 277 F.2d 364, at page 369 and notes 5 and 6. But the State may not either compel segregation in use or the maintenance or making of separate facilities where the criteria is race or color.
Free access — add to your briefcase to read the full text and ask questions with AI
JOHN R. BROWN, Circuit Judge.
This case presents again the question of asserted unlawful segregation of races in the Railroad Terminal Station at Birmingham, Alabama. After a trial following our remand, Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, the District Court denied all relief sought by the Negro plaintiffs against the City Commissioners, the Alabama Public Service Commission, and the Birmingham Terminal Company, a private corporation.
The fact findings after a full trial come here with the insulation of F.R.Civ.P. 52(a), 28 U.S.C.A. While we reach a conclusion contrary to that of the District Court, we do so on the basis of the facts which are substantially without controversy. We do not credit any evidence either expressly or impliedly rejected py the District Judge.
We think that a basic error in the District Court’s action was the assumption that all that was involved was forcible segregation of the races and not other practices related to race and color which were equally impermissible under the Fourteenth Amendment and the Civil Rights Acts, 42 U.S.C.A. § 1981, § 1983. As to each defendant this led the Court to focus on the issue of whether segregation was compulsory. Finding, as it did, that while separate facilities were to be and were furnished for the use of the races, neither the Commission, the City nor the Terminal coercively compelled occupancy of one to the exclusion of the other, the Court concluded that no case was made out. No doubt this was the main thrust of the plaintiff’s complaint as the analysis of it in our prior opinion reflects. But this approach failed to take into account or properly evaluate in the light of federal constitutional requirements the virtually uncontradict-ed state action in which race was the significant factor. It also seems quite clear that despite Browder v. Gayle, D.C.M.D. Ala.1956, 142 F.Supp. 707, affirmed 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, the defendants, if not the Court, labored under the misconception that race as an impermissible basis for distinction related to
interstate
commerce only and not to
intrastate
passengers.
The significant physical facts are simple and undisputed. The Terminal, a private corporation owned by specified railroads serving Birmingham, maintains a passenger station for arriving and departing passengers. This includes waiting rooms and the usual facilities for travelers as well as those of the public who are there awaiting the arrival or departure of passengers. There are two main but separate waiting rooms. Each is directly accessible through separate entrances on the track side of the depot and the street side. Over at least one entrance on the track concourse side, and again on the street side, signs were posted marking one as the Negro waiting room and the other for whites. As to one, the legend in large letters read:
“Colored Intrastate Passengers Waiting Room.”
Over the other the sign read:
“Waiting Room Interstate and White Intrastate Passengers.”
The Public Service Commission.
Whether, as suggested by the Terminal, the signs are merely intended by it as an invitation to each of the races to occupy these facilities separately provided in order to permit voluntary acceptance of traditional social customs of the South is not significant so far as the Commission is concerned. The Commission, an arm of the State of Alabama, pursuant to a specific statute is authorized to
require
separate waiting rooms.
And it has done so by mandatory official regulation published as early as 1923
Moreover, because of intervening decisions forbidding racial discrimination as to facilities employed in interstate commerce
the Commission in 1956 made the requirement even more emphatic. Of dominant significance for our purposes, the Commission’s new Order T-21 required, for the first time, the posting of signs — in lettering of “contrasting color” clearly visible for at least fifty feet — to mark the separate rooms maintained for each of the races.
The Commission both in its contentions generally and in objections to admissibility of the regulations,
recognized that as to interstate commerce neither the statute nor the regulations could survive in the face of the contrary and superior rulings (see note 5, supra). But as to intrastate passengers it either took the view that somehow the regulation was valid or at least the Baldwins as victims of discrimination during interstate commerce were not in a position to assert this as a class suit for intrastate travelers.
But the vice here is not the impermissible distinction between
inter
and mirastate commerce or even the absence of an explicit purpose coercively to compel segregated occupancy (as distinguished from the maintenance of separate rooms). What is forbidden is the state action in which color (i. e., race) is the determinant. It is simply beyond the constitutional competence of the state to command that any facility either shall be labeled as or reserved for the exclusive or preferred use of one rather than the other of the races. Certainly the state may not directly or through a municipality prescribe that a certain area of the city is to be inhabited by Negroes, another by whites, or that such areas are to be so marked even though no sanctions are imposed as to occupancy. Cf. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Harmon v. Tyler, 1926, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing 160 La. 943, 107 So. 704, first appeal 158 La. 439, 104 So. 200; Buchanan v. Warley, 1917, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. The factor of race is irrelevant from a constitutional viewpoint. Boson v. Rippy, 5 Cir., 1960, 285 F.2d 43 and see especially supplemental opinion [December 7, 1960]. And in testing state action, we have recognized that there may be need of the “protection of a court order making certain that the factor of race would not be a consideration. * * * ” and that there be “a decree of the trial court prohibiting the consideration of * * * race * * * as a relevant factor * * * ” Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370, 375.
This is not to say that integration in all activities must be govemmentally compelled. We, and others, have clearly indicated to the contrary. City of Montgomery, Alabama v. Gilmore, 5 Cir., 1960, 277 F.2d 364, at page 369 and notes 5 and 6. But the State may not either compel segregation in use or the maintenance or making of separate facilities where the criteria is race or color.
It follows that the orders of the Commission as well as the underlying statute (note 3, supra) are constitutionally invalid insofar as they require that the Terminal provide, maintain and mark separate facilities on the basis of race. This is so without regard to whether in fact the segregated use or occupancy of such waiting rooms is coercively compelled either by the Commission, the City or the Terminal. On remand, appropriate injunctive and declaratory orders should issue.
The Birmingham Terminal Company.
In assaying the position of the Terminal the trial seemed preoccupied with efforts to tie the Terminal into action by police officers of the City. Presumably this was to make out State action. See, e. g., 251 F.2d 780, 788 and notes 8-11. This was in response to the contention and proof offered by the Terminal that it was indifferent to where Negroes sat — ■ either in the “Interstate and White” or “Colored Intrastate” waiting rooms — and without regard to their status as inter or intra-state travelers. We accept
the District Court’s finding that the proof did not show a sufficient connection between acts of City officers and the Terminal concerning any custom or practice or usage to compel Negroes to occupy the waiting room.
But again this approach was too narrow. The Terminal was admittedly a public utility holding itself out to serve all of the traveling public desiring to use the railroads operating through
this station in Birmingham.
As we pointed out at some length in Boman v. Birmingham Transit Company, 5 Cir., 1960, 280 F.2d 531, 535, one engaged in Alabama as a public utility “is doing something the state deems useful for the public necessity or convenience.” When in the execution of that public function it is the instrument by which state policy is to be, and is, effectuated, activity which might otherwise be deemed private may become state action within the Fourteenth Amendment. And whether it is state policy is to be determined by the nature of the activity in terms of the governmental nature of the function and not the mere presence or absence of power in the state’s vicarious “agent” to impose criminal sanctions. So much is clear from Smith v. Allwright, 1944, 321 U.S. 649, 658, 663, 64 S.Ct. 757, 88 L.Ed. 987, 994, 997. To this may be added Terry v. Adams, 1952, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 and many others.
Boman v. Birmingham Transit Co., supra, is not to the contrary.
Here the statute infuses the Commission with power to prescribe that carriers shall maintain separate waiting rooms and this power has been effectuated by the issuance of regulations that leave nothing to the imagination. The last order compels the posting of visible signs clearly indicating which waiting room is for whites and which is for colored. The state does not physically post the signs, but it does so just as effectively through the instrument of the Terminal. The very act of posting and maintaining separate facilities when done by the Terminal as commanded by these state orders is action by the state.
As we have pointed out above the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so. The action of the Terminal — a public utility and an arm of the State in the execution of this State policy — in posting and maintaining the signs and the separate waiting rooms on the basis of color is equally forbidden. On remand this should be appropriately proscribed by suitable injunctive and declaratory orders.
Board of Commissioners of the City of Birmingham.
In the District Court’s memorandum opinion it formally found that the “city commissioners * * * are not pursuing a custom, statute or usage which denies plaintiffs and all other Negroes similarly situated the right to use the waiting room at the Terminal designated ‘Interstate and White Waiting Room.’ They have issued no orders during the year 1956, or subsequently thereto, pursuant to which plaintiffs and other Negroes who use such waiting room are subject to arrest and confinement in jail.”
In arriving at that conclusion we may assume that the Court rejected altogether the testimony of Michel and Dr. Pitts, see note 2, supra, showing four specific incidents where Negroes were either arrested by city policemen or required by a policeman to move from the “Interstate and White” waiting room. Of course, the Court could not, nor did it attempt to, reject the uncontradicted testimony that on December 22, 1956, the Baldwins were arrested and taken to jail because they were in the white waiting room though in possession of interstate travel tickets. Presumably it thought these “regrettable arrests * * * which indubitably triggered this litigation * * * ” was but an isolated incident and would serve no basis for declaratory or injunctive orders since on the trial of the criminal charges against the Baldwins, the state court on motion of the City entered a
nolle prosequi.
We think, however, that the balance of the evidence — coming as it did entirely either from the Commissioner who was called as an adverse witness or by witnesses proffered by the City — demonstrates without any dispute whatsoever that there is a custom, practice and usage of the City and its policemen acting under color of office which denies equal protection of the law. As to such actions the plaintiffs are entitled to a positive declaration and apropriate injunctive orders. In reaching this conclusion, we again stress that we do not credit any testimony discredited. We do not accept any testimony rejected. We take the testimony of the City’s witnesses, its Police Commissioner, its Chief of Police, another supe
rior officer, and a patrolman precisely at its face value.
At the outset it seems quite plain that despite the extended discussion of this in our prior opinion, 251 F.2d 780, especially at pages 786-787, the District Court in its ruling seemed to believe that some specific ordinance or formally promulgated policy had to be established before the City and its agents could be said to be acting under color of office. But this is not the test. If city policemen, with the color of office which their uniform, badge, display of authority and available arms reflects, undertake as policemen to subject persons to treatment which denies them a constitutionally protected right, it is state action. It is state action though in excess of actual legal authority or even if done without formal authorization. The record must therefore be examined to see whether the police department and its employees are undertaking to use race as the basis for determining the right of occupancy of either of the waiting rooms in the Terminal. To answer that inquiry it is necessary to take into account what was done before 1956 and that which was done (or not done) after 1956. The year 1956 has dominant significance because it was in that year that the Alabama Public Service Commission issued its order, note 6, supra, on signs. This in turn was precipitated by the final authoritative rulings which eliminated all doubt as to interstate commerce, see note 5, supra.
Prior to that time it was considered an offense — at least sufficient to call for action by a policeman in the Terminal— for a Negro to occupy the white waiting room.
Along came the ICC Order which put an end to discrimination as to interstate passengers. The police department became aware of this
and it brought about the discussion of the steps to be taken by the police which resulted finally in the issuance of an authoritative order
to check the tickets of Negro
travelers to see whether they were for an interstate trip. As understood by the man on the beat, the lone patrolman called as a witness (by the City) translated this order into plain terms: On receipt of a complaint that a Negro was in the “Interstate and White” waiting room the ticket should be checked and if it was not an interstate ticket the person would be required to move.
This establishes two things. First, a Negro is treated differently and solely because of his race. He, unlike a white traveler, is required to establish his “right” to sit in the room marked “Interstate and White Intrastate Passengers.” Second, the test is whether the Negro is an interstate traveler. This latter has special significance in the light of the uncontradicted pre-1956 practice, custom and usage of the Birmingham police to treat occupancy by a Negro of the white waiting room as an offense. More than that, when the impact of the ICC order led the police to conclude that it forbade any action as to interstate travelers, no order of any kind was given affecting the previous custom and usage concerning intrastate passengers.
Of course, the intrastate as distinguished from interstate status is wholly irrelevant. Certainly since Browder v. Gayle, D.C.M.D.Ala.1956, 142 F.Supp. 707, affirmed 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, it is too late now to question the absolute right of Negroes engaged in intrastate commerce to be free
from discrimination by police officers on the basis of race.
And yet it is plainly evident that whenever a complaint is received reporting that a Negro is sitting in the “Interstate and White Intrastate” waiting room, the police officer is required to, and does, demand to see the tickets to verify the interstate status. As to those in interstate status, this is itself a denial of equal protection by policemen since white interstate travelers are not subjected to like treatment. As to those in intrastate status, it is likewise a clear violation of the Constitution for a policeman, simply because the traveler is a Negro, to require that he prove his right to be there. And it only becomes more aggravated if, after determination of status as an intrastate passenger, the policemen in accordance with the long standing custom, practice and usage not to this date rescinded requires the intrastate passenger to leave. The briefs undertake to assert that the record shows no such discrimination toward intrastate Negro travelers. But on close examination it does no such thing. All it shows is that no intrastate Negro passenger has ever been seen in the white waiting room; only interstate Negro passengers have been found there and no interstate Negro passenger has ever been required to move.
Indeed, the sign sets up the basis of separation as to intrastate passengers. If white they go to one room, if colored to the other.
The sum of it is that on this uncon-tradicted record the police of Birmingham consider that the right to remain in the “Interstate and White Intrastate” waiting room requires one of two conditions: (a) the person be white or (b) if colored, he be an interstate traveler. The obverse is just as obvious: if not white or colored with an interstate status, the person must move. Negroes are entitled to be free of that discrimination at the hands of state, city and police officials. The City has, to be sure, recognized that as to interstate passengers it may not enforce its prior practices. But in the very execution of that policy, by the demand for examination of the tickets it inescapably violates the demands of the Constitution that a Negro traveler sitting in the waiting room be treated as would a white traveler on the next bench. The Negro plaintiffs and those for whom they sue as a class are entitled to appropriate injunctive and declaratory orders that will obliterate the supposed distinction between interstate and intrastate passenger status as well as the use of race or color as the basis for occupancy of either one or both of the waiting rooms of the Terminal.
The result is that the cause must be reversed and remanded for further appropriate orders as to each of the separate defendants adapted to the actions of each which we find to be in violation of the Fourteenth Amendment and the Civil Rights Acts. In reaching this conclusion
we certainly do not disagree with the principles so well stated by the District Court. “While no law, or custom or usage which is the equivalent of law, may compel the segregation of races in the area of public transportation, it is equally clear that people of good will of both races are free to observe traditions which for genei'ations have been an intimate part of their way of life.” Similar and related factors set forth as reasons in support of our action led us to the modification of the decree in City of Montgomery, Alabama v. Gilmore, 5 Cir., 1960, 277 F.2d 364, 368-370.
Reversed and remanded.