Samuel Bailey v. Joe T. Patterson, Attorney General of the State of Mississippi

323 F.2d 201

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 8, 1963
• Docket: 20372
• Status: Published

Opinions

HAYS, Circuit Judge.

Plaintiffs, Negroes living in Jackson, Mississippi, appeal from judgments of the United States District Court for the Southern District of Mississippi, S. C. Mize, Judge, which declared unconstitutional both the so-called Segregation Statutes of the State of Mississippi,¹ and a similar ordinance of the City of Jackson, and declared that each of the plaintiffs had a right to unsegregated transportation service from each of the carrier defendants,^{2 3} but denied to appellants in-junctive or class relief against any of the defendants. We hold that appellants are entitled to injunctive relief and reverse the judgments, pro tanto.

Jurisdiction was invoked under the Civil Rights Act, 28 U.S.C. § 1343, and 42 U.S.C. § 1983. Plaintiffs alleged that defendants, acting under color of state law, policy, and custom, denied to plaintiffs and the class of all others similarly situated, their right to transportation service free from racial discrimination. They based their claim on the Fourteenth Amendment and the Commerce Clause of the Constitution of the United States, and on the Interstate Commerce Act, 49 U.S. C. §§ 3(1), 316(d). Plaintiffs sought to enjoin the enforcement of state and municipal segregation laws affecting common carriers, and to enjoin all defendants from maintaining racial segregation in any manner, by the use of signs or otherwise, on the carriers ³ or in or around their terminals or other facilities anywhere in the state. Plaintiffs also sought to enjoin the municipal authorities from continuing to arrest, harass, intimidate, threaten or coerce plaintiffs or members of their class in the exercise of their federally protected rights.

A three judge court, convened pursuant to 28 U.S.C. § 2281, invoked the doctrine of equitable abstention “to give the State Courts of Mississippi a reasonable opportunity to act.” 199 F.Supp. 595, 603 (S.D.Miss.1961) (Rives, C. J., dissenting). On a direct appeal, the Supreme Court vacated the judgment, and remanded the case to the district court “for expeditious disposition * * * of appellants’ claims of right to unsegregated transportation service.” 369 U.S. 31, 34, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962). The Supreme Court held that the abstention doctrine was inapplicable, and that there was no justification for convening a three judge court.

“We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. [Com. of] Virginia, 328 U.S. 373 [66 S.Ct. 1050, 90 L.Ed. 1317]; Gayle v. Browder, 352 U.S. 903 [77 S.Ct. 145, 1 L.Ed.2d 114]; Boynton v. [Com. of] Virginia, 364 U.S. 454, [81 S.Ct. 182, 5 L.Ed.2d 206]. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking non-existent. * * * We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional.” 369 U.S. at 33, 82 S.Ct. at 550-551, 7 L.Ed.2d 512.

The Court also disposed of the argument that plaintiffs lacked standing to bring the action.

“[A]s passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U.S. 80, 93 [61 S.Ct. 873, 85 L.Ed. 1201] ; Evers v. Dwyer, 358 U.S. 202 [79 S.Ct. 178, 3 L.Ed.2d 222].” 369 U.S. at 33,⁴ 82 S.Ct. at 550-551, 7 L.Ed.2d 512.

Upon the remand, the district court, on the original record before the three judge court, entered judgment declaring the statutes and ordinance unconstitutional, and stating that “each of the three plaintiffs has a right to unsegregated transportation service from each of the carrier defendants.” It ruled, however, that the action was “not a proper class action, and no relief may be granted other than that to which the plaintiffs are personally entitled.” The district court found that the segregation statutes were no longer enforced, that the record disclosed only “isolated instances” of improper behavior by law enforcement officials, that segregation signs had been removed from the premises of the carrier defendants, and that all terminal facilities of the carriers were now being fully used by members of all races. It therefore denied injunctive relief, but retained jurisdiction for the entry of further orders as might subsequently appear appropriate.

Appellants promptly moved to amend the findings, and for further relief on the basis of affidavits showing continuing segregation. A hearing was held, and the court found that signs referring to race had remained posted, and that certain other discrimination had continued after the initial order, but that the situation had now been corrected. Injunc-tive and class relief was again denied.

Upon a subsequent motion again alleging continued segregation, injunctive relief was denied for a third time.⁵

Plaintiffs appeal from all three orders, insofar as they (a) refused to grant in-junctive relief, (b) refused to recognize the class nature of the action, and (c) refused to enjoin the City of Jackson from maintaining racial signs on the sidewalks outside the waiting rooms at the terminals of the carrier defendants. These signs had been ignored in the findings and orders of the district court.

Our decision in United States v. City of Jackson, 5 Cir., 318 F.2d 1, after the notice of appeal herein was filed, renders moot the third of the three bases of the appeal. We ordered that an injunction should issue against the City of Jackson, its Commissioners, and its Chief of Police directing the removal of these same signs and any others indicating or suggesting that any of the terminal facilities are for the use of persons of any particular race or color. We further directed that the defendants be enjoined from “otherwise seeking to enforce or encourage racial segregation in the use of terminal facilities of the carriers.”

Only the first two bases for the appeal herein remain for our consideration.

We find it unnecessary to set forth the evidence in detail. Suffice it to say that appellants, all Negro residents of Jackson, Mississippi, have experienced racial segregation in using the facilities of each of the carrier appellees. Separate wating rooms, drinking fountains, rest rooms and other terminal facilities were maintained by the carrier appellees, and signs directed to race were posted in the terminals of the interstate carrier defendants, and on the buses of the Jackson City Lines. The latter signs directed Negroes to the rear of the bus. Negro witnesses, other than appellants, testified to instances in which they had been ordered by drivers of each of the bus company appellees to sit in the rear of the bus, and in which police had been called and the witnesses arrested upon their refusal to comply. Appellants introduced in evidence approximately 190 judgments of conviction for breach of the peace entered against persons arrested in waiting rooms of the interstate carrier appellees in Jackson at the time of the so-called Freedom Ride demonstrations in the summer of 1961. Appellants themselves have neither been arrested nor threatened with arrest for refusal to comply with the segregation laws or policies of the appel-lees. They were, however, users of ap-pellees’ segregated facilities and thus acquired standing to sue. Bailey v. Patterson, supra, 369 U.S. at 33, 82 S.Ct. at 550-551, 7 L.Ed.2d 512. The law is crystal clear that they were not required to subject themselves to arrest in order to maintain this suit. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); Morrison v. Davis, 252 F.2d 102 (5th Cir.), cert, denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1075 (1958); Baldwin v. Morgan, 251 F.2d 780, 787 (5th Cir., 1958).

Even after the entry of judgment in the present case, separate facilities for white and Negro passengers continued to be maintained by all carrier defendants, and racial signs remained posted. The lessees of restaurants at the Jackson Municipal Airport and at a Continental (Trailways) bus terminal in Meridian, Mississippi, continued to refuse unsegregated service to Negroes.

I.

Appellees insist that these practices have now ceased, that all racial signs in and around the facilities of the carrier defendants have now been removed, and that state and municipal segregation laws are no longer enforced. Even assuming this to be so, appellants are entitled to in-junctive relief. Notwithstanding the clear pronouncements of the Supreme Court in the present case, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, and in Boyn-ton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956); and Morgan v. Com. of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946) ; of this Court in Boman v. Birmingham Transit Co., 280 F.2d 531 (5th Cir., 1960); Morrison v. Davis, supra; and Baldwin v. Morgan, supra; of the district courts in United States v. City of Montgomery, 201 F.Supp. 590 (M.D.Ala.1962); Brooks v. City of Tallahassee, 202 F.Supp. 56 (N.D.Fla.1961); and Lewis v. Greyhound Corp., 199 F.Supp. 210 (M.D.Ala.1961); and of the Interstate Commerce Commission in N.A.A.C.P. v. St. Louis S. F. Ry., 297 I.C.C. 335 (1955), to name but some of the pertinent cases, appellees continued to maintain their policies and practices of racial segregation. The record here shows that these policies and practices were continued even after the entry of judgment by the district court in the present case. The recent statement of this court in United States v. City of Jackson, supra, is pertinent:

“We again take judicial notice that the State of Mississippi has a steel-hard, inflexible, undeviating official policy of segregation. The policy is stated in its laws. It is rooted in custom. The segregation signs at the terminals in Jackson carry out that policy. The Jackson police add muscle, bone, and sinew to the signs.”

318 F.2d at 5-6 (footnotes omitted). See also Meredith v. Fair, 298 F.2d 696, 701 (5th Cir.), cert. denied, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed.2d 66 (1962).

Under these circumstances, the threat of continued or resumed violations of appellant’s federally protected rights remains actual. Denial of injunctive relief might leave the appellees “free to return to [their] old ways.” United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953). “It is the duty of the courts to beware of efforts to defeat injunctive relief by protestations of repentance and reform, especially when abandonment seems timed to anticipate suit, and there is probability of resumption.” United States v. Oregon State Medical Soc’y, 343 U.S. 326, 333, 72 S.Ct. 690, 695-696, 96 L.Ed. 978 (1952). In the Grant case, supra, the Court said:

“Along with its power to hear the case, the court’s power to grant in-junctive relief survives discontinuance of the illegal conduct. Hecht Co. v. Bowles, supra [321 U.S. 321, 64 S.Ct. 587, 88 L.Ed. 754] ; Goshen Mfg. Co. v. [Hubert A.] Myers Mfg. Co., 242 U.S. 202 [37 S.Ct. 105, 61 L.Ed. 248] (1916). The purpose of an injunction is to prevent future violations, Swift & Co. v. United States, 276 U.S. 311, 326 [48 S.Ct. 311, 72 L.Ed. 587] (1928), and, of course, it can be utilized even without a showing of past wrongs. But the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation * *

345 U.S. at 633, 73 S.Ct. at 897-898, 97 L.Ed. 1303. On the present record, it is clear that such danger exists. Cf. Derrington v. Plummer, 240 F.2d 922, 925 (5th Cir., 1956) and cases cited, cert. denied, sub nom. Casey v. Plummer, 353 U.S. 924, 77 S.Ct. 680, 1 L.Ed.2d 719 (1957).

II.

The decisions of this court are divided on the question of whether appellants have standing to represent not only themselves but the class of all Negroes similarly situated. Fed.R. Civ.P. 23(a). Compare Shuttlesworth v. Gaylord, 202 F.Supp. 59, 62 (N.D.Ala.1961), aff’d sub nom. Hanes v. Shuttlesworth, 310 F.2d 303 (5th Cir., 1962), and Derrington v. Plummer, 240 F.2d 922 (5th Cir., 1956), cert. denied, sub nom. Casey v. Plummer, 35§ U.S. 924, 77 S.Ct. 680, 1 L.Ed.2d 719 (1957), with Clark v. Thompson, 313 F.2d 637 (5th Cir., 1963). The remand by the Supreme Court in the present case would seem to indicate an affirmative answer. The Court specifically noted that this is a class action (369 U.S. at 32, 82 S.Ct. at 550, 7 L.Ed.2d 512). While it distinguished and denied appellants’ attempt to enjoin certain criminal prosecutions against members of a class of which appellants are not members (id. 369 U.S. at 33-36, 82 S.Ct. at 550-551, 7 L.Ed.2d 512)⁶, it cited Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), also a class action, in remanding the present claims for expeditious disposition. See also Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762: (1962).

We find it unnecessary to determine, however, whether this action was. properly brought under Rule 23(a), for whether or not appellants may properly represent all Negroes similarly situated,, the decree to which they are entitled is the same. Appellants do not seek the right to use those parts of segregated, facilities that have been set aside for use by “whites only.” They seek the right to use facilities which have been desegregated, that is, which are open to all persons, appellants and others, without regard to race. The very nature of the rights appellants seek to vindicate requires that the decree run to the benefit, not only of appellants but also for all persons similarly situated.

In Potts v. Flax, 313 F.2d 284, 289-290' (5th Cir., 1963), a school segregation case, this Court said:

“There is at least considerable doubt that relief confined to individual specified Negro children either could be granted or, if granted, could be so limited in its operative effect.. By the very nature of the controversy, the attack is on the unconstitutional practice of racial discrimination. Once that is found to exist, the Court must order that it be discontinued. Such a decree, of course, might name the successful plaintiff as the party not to be discriminated against. But that decree may not —either expressly or impliedly — affirmatively authorize continued discrimination by reason of race against others. Cf. Shelley v. Kraemer,. 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. Moreover, to require a school system to admit the specific successful plaintiff Negro child while others, having no such protection, were required to attend schools in a racially segregated system, would be for the court to contribute actively to the class discrimination proscribed by Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, 499, on rehearing 308 F.2d . 503; see also Ross v. Dyer, 5 Cir., 1962, 312 F.2d 191. The effect of this last consideration is to afford additional basis for affirmance. In this light, if it was an error to treat the case as a class suit and enter such a decree, such error, if any, was harmless since the decree for all practical purposes would have been the same had it been confined to the Teal or Flax children.” ⁷

These principles are fully applicable here.⁸

III.

There remains to be considered which defendants shall be enjoined.

To justify the issuance of an injunction against the Attorney General, appellants refer to Patterson’s testimony herein that “if conditions arise to such a point that I thought it was necessary to bring them into effect,” he would enforce the Mississippi segregation laws. Those laws have now been declared unconstitutional, however, and we cannot assume that the highest legal officer of the state would nevertheless seek their enforcement. Under these circumstances, we cannot say that the denial of injunctive relief against the Attorney General constituted an abuse of discretion. Cf. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); Com. of Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 67 L.Ed. 1078 (1923).

As indicated above, we directed in United States v. City, of Jackson, 318 F.2d 1 (5th Cir.', 1963) that an injunction issue against the City, its Commissioners, and its Chief of Police, all of whom are appellees herein, enjoining the maintenance of racial signs or “otherwise seeking to enforce or encourage racial segregation in the use of the terminal facilities of the carriers.” Although the injunction has not yet issued, we assume that persons using the carrier appellees’ terminals in the exercise of their federal rights will, by its terms, be protected against arrest, harassment, intimidation, threats, or coercion by the City, or its police or other officials. To that extent, the injunction prayed for is unnecessary. The mandate in United States v. City of Jackson, supra, does not relate, however, to persons using the facilities of the Jackson Municipal Airport Authority, or the buses of the bus company appellees. To this extent, we direct that the injunction against the City and appellees Thompson, Lucky, Marshall and Rayfield issue as prayed for.

An injunction shall issue as prayed for against all carrier appellees.⁹

As against Cicero Carr,¹⁰ it appears that further injunctive relief is unnecessary, and the order of August 24, 1962, is affirmed.

Affirmed in part, reversed and remanded in part for the entry of judgment in accordance with this opinion.

1 . Miss.Code Ann. tit. 11, §§ 2351, 2351.5, 2351.7, and tit. 28, §§ 7784, 7785, 7786, 7786-01, 7787, 7787.5 (1942).

2 . The defendants-appellees, Jackson City Lines, Inc., Jackson Municipal Airport Authority, Continental Southern Lines, Inc. (Trailways), Southern Greyhound Lines, and Illinois Central Railroad, Inc. are referred to hereafter as the carrier defendants or carrier appellees. The latter four are referred to as the interstate carriers. Jackson City Lines, Inc., Continental Southern Lines, Inc. and Southern Greyhound Lines are referred to as bus company defendants or bus company appellees.

3 . While the complaint does not allege that seating on the trains of the Illinois Central Railroad is segregated, this exception does not extend to its depots.

4 . Plaintiffs had also sought to enjoin certain criminal prosecutions under Mississippi’s breach of peace statutes. The Supreme Court held that siuce plaintiffs did not allege that they had been prosecuted or threatened with prosecution under these statutes, they lacked standing to sue. 369 U.S. at 32, 82 S.Ct. at 550, 7 L.Ed.2d 512.

5 . The moving papers alleged that Negroes were still being discriminated against in the restaurant at the Jackson Municipal Airport. The court found that the manager of the restaurant, the defendant, Cicero Carr, had continued to discriminate against Negroes in the restaurant, but that his lease had terminated and he would no longer have any interest in or control over the restaurant facilities. It ordered that Carr should not be employed by those facilities in the future, but denied further relief.

6 . See note 4, supra.

7 . In a footnote to its opinion, id. 313 F.2d at 289, n. 5 the Court said:

“[A]s we have recently pointed out, a school segregation suit presents more than a claim of invidious discrimination to individuals by reason of a universal policy of segregation. It involves a discrimination against a class as a class, and this is assuredly appropriate for class relief. Bush v. Orleans Parish School Board, 5 Cir., 1962, 308 F.2d 491, 499, modified on rehearing, 308 F.2d 503. See also Boss v. Dyer, 5 Cir., 1962, 312 F.2d 191.”

8 . The cases relied on by the appellees, McCabe v. Atchison, T. & S. F. R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Brown v. Board of Trustees, 187 F.2d 20 (5th Cir., 1951); and see note 4 supra, which denied class relief where plaintiffs were not members of the class for which relief was sought, are obviously beside the point.

9 . At the appellate argument, appellants suggested that in addition to the relief prayed for, the decree should require that the waiting rooms formerly set aside for Negroes be closed. Alternatively, it may be appropriate to require appellees to post public signs to the effect that all facilities are now available to all passengers without regard to race. On the present record, however, we can express no opin-.i ion on the need for such relief. The question, is properly addressed to the sound discretion of the district court.

10 . See note 5 supra.