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up a controversy under the laws oi the unit the power to act as exclusive re;eL'nited States within its jurisdiction under sentatives of all the employees in the un!! Section 1331.
for the purjuses of collective bargaining ::: [4,5) The second basis upon which ju
respect to rates of pay, wages, hours oi risdiction is claimed is Section 1343 of Title employment and other conditions or com28, United States Code, commonly known of the appellant has already been given. ili
ploynient. The answer to this content:1:9 as the Civil Rights Act, the relevant portion oi which is set out in a note." The Civil ion the Union was acting as bring
we have demonstrated earlier in this opus Rights Act was originally enacted to enforce the Fourteenth Amendment. It has agent for its members, including the legro
taxicab drivers, pursuan: to their consent long been settled that the Fourteenth
as its menibers and not by virtue oi any .Amendnient is directed only to state action and that the invasion by individuals of the power conierred upon it by slaute, either
federal or state. rights of other individuals is not within its purview. 12 It necessarily follows that the
The appellant cites the primary clectie! jurisdiction conferred upon the federal dis- cases in which the Supreme Court 1;;he!? frict courts by Section 1343 is similarly the right of Negro citizens to vote in prilimited and that redress for the invasion by mary elections which were held so!ciy unan individual of the civil rights of another der the rules of a political party and 117: 11must be sought in the state courts, 1.3 unless,
out any authority oi a stilte stitute. 15 Thus of course, Jiversity of citizenship is pres
cases are clearly listinguishalle, however, in that the party oric!s involved in item?!.
although not acting unders!!!116ry :!:!livr. (6) The defendants in this case obvi- ily, were participating in princesses cose 111.41 ously are not state officers. The plaintiffs to the conduct of state elections, a 10.00 isscrt, however, that the Union acted inder
stilte function. Finally the inppellant rie color of state law in agreeing on their be icrs to the decision of this court in licking hali to the discriinina:ory working regu- ". Pennsylvania R. (0., 3 Cir., 19.15, 15! lations in controversy and thus brought it. 21 210. That case, however, Joe's 11011 self within the terms of Section 1,34.. The support their contention since it was the?' irgument is that the Union was acting un- averrel that tlic private corporale ale ledi. cler authority coníerred upon it by the ants conspired with state oficials in deyirure l'ennsylvania Labor Relations Act. The the plaintilis of their civil righuis. is jopellant points to Section 7(:) of the lle conclude that the district couri rigti:Pennsylvaniii Act which confcrs upon repou ly held that it did not live jurisdice..?? 110:resentatives designated or selected for the der Section 1313. pourprises of collective bargaining for the The judgment of the district court will in majority of the employees in a bargaining affirmeil.
13. Collins i. 11:1runn, 1951, 11 is
fil. il se't. 9:7, ..; LEI. 1.1.1; lat 1 (millor, 8 l'ir. 1991. 1:1 EZIT 77.
"(:) To redress the deprivation, under color of any St:11.. 1:14, ST:1111.., urilin!!16, regulation, custoin or us:18", of :iny riclit. prawdog or immunity Coutood by the (onstitution of the I'mitood Stitle or liv any set of l'ongresy providing foor qual rights of citizens or of all goversaills willos
in tlim jurisdiction of the l'nited St1!««." 12. Inicodd States v. Cruikshank, Ini !
1.3 113. 11, LEI. 38;
14. 1: P.S.l'l. 9 211.1 et $0.
15. Smith, Allwriglie, 1911, 1:1.5. 61!".
rii Str. 757, SLE, 957; Risos i El thony, l'ir. 19117, 11:57,"ptionari do nivel 3 US sich, OS S.L. :0.7, 1L Eu 1131.
Robert M. DAWSON, Jr., et al.,
Robert L. Carter, New York City (LinAppellants,
wood Koger, Jr., Tucker R. Dearing, Balv.
timore, Md., Jack Greenberg and ThurMAYOR AND CITY COUNCIL OF BAL- good Marshall, New York City, on the TIMORE CITY, James C. Anderson, brief), for appellants. President, et al., Appellees.
Francis X. Gallagher, Asst. City Sol., Milton LONESOME et al., Appellants,
Baltimore, Md., and W. Giles Parker,
N. Biddison, City Sol., Edwin Harlan, R. Brooke MAXWELL, Chairman, Ber Deputy City Sol., Hugo Ricciuti, Asst. nard I. Gonder, H. Lee Hoffman, Sr., d. City Sol., Baltimore, Md., and C. FerdiMiles Lankford, J. Wilson Lord, consti. tuting the Commissioners of Forests nand Sybert, Atty. Gen., of Maryland, on and Parks of Maryland, et al., Appellees. the brief), for appellees. Nos. 6903, 6904.
Before PARKER, Chief Judge, and (220 F. 2d 386)
SOPER and DOBIE, Circuit Judges.
These appeals were taken from orders
of the District Court dismissing actions
brought by Negro citizens to obtain deDecided March 14, 1955.
claratory judgments and injunctive relief
against the enforcement of racial segreActions by Negro citizens for declar- gation in the enjoyment of public beaches atory judgments and injunctive relief. and bathhouses maintained by the public The United States District Court for the authorities of the State of Maryland and District of Maryland, R. C. Thomsen, J., the City of Baltimore at or near that city. 123 F. Supp. 193, dismissed actions and Notwithstanding prior decisions of the plaintiffs appealed. The Court of Ap- Supreme Court of the United States peals held that enforcement of racial striking down the practice of segrerile segregation in enjoyment of public beach- tior of the races in certain fields, the Dises and bathhouses maintained by public trict Judge, as shown by his opinion, 12:3 authorities of state and city was not a F.Supp. 193, did not feel free to disres proper exercise of police powers.
gard the decision of the Court of .11
peals of Maryland in Durkee v. Murphy. Reversed.
181 Md. 259, 29 A.2d 253, and the des cision of this court in Bover v. Garrett, 4
Cir., 183 F.2d 582. Both of these citse's 1. Civil Rights Cl Segregation of races cannot be justi.
are directly in point since they relited fied as a means to preserve publie peace
to the field of public recreation and hell.
on the authority of Plessy v. Ferguson, merely because tangible facilities fur
163 L.S. 537, 16 S.Ct. 1138, 41 L.Ed. 2:, nished to one race are equal to those furnished to the other. U.S.C...Const.
that sekretation of the races in athl.tips
activities in public parks or playerounka Amend. 14.
did not violate the 14th Amendment if 2. Civil Rights 6
substantially qual facilities and services Enforcement of racial segregation in were furnished both races. enjoyment of public beaches and bath- Our views is that the authority of these houses mainti:ined by public authorities case. was sisoptiling by the subsequit.' of state and city was not il proper caps dernsions of the Supreme Court. In.. cise of police powers.
U.S.C..1. Const. Lwin 1. Oblichonit State Remedies, Amend. 14.
U.S. 67, 79 S.(1.851, 9:1 L.Ed. 11-19, the
Supreme Court had held that it was a to the other. The Supreme Court exdenial of the equal protection guaranteed pressed the opinion in Erown v. Board by the Fourteenth Amendment for a of Education of Topeka, 347 U.S. 492 to state to segregate on the ground of race 494, 74 S.Ct. 690 to 691, that it must a student who had been admitted to an consider public education in the light of institution of higher learning. In Hen- its full development and its present place derson v. United States, 339 U.S. 816, 70 in American life, and therefore could S.Ct. 843, 94 L.Ed. 1302, segregation on not turn the clock back to 1896 when the ground of race in railway dining cars Plessy v. Ferguson was written, or base had been held to be an unreasonable reg- its decision on the tangible factors only ulation violative of the provisions of the of a given situation, but must also take Interstate Commerce Act, 49 U.S.C.A. § into account the psychological factors 1 et seq. Subsequently, in Brown v. recognized at this time, including the Board of Education of Topeka, 347 U.S. feeling of inferiority generated in the 483, 74 S.Ct. 686, 98 L.Ed. 873, segrega- hearts and minds of Negro children, tion of white and colored children in the when separated solely because of their public schools of the state was held to be race from those of similar age and qualia denial of the equal protection clause of fication. With this in mind, it is obvious the 14th Amendment; and in Bolling v. that racial segregation in recreational Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 activities can no longer be sustained as L.Ed. 884, segregation in the public a proper exercise of the police power of schools of the District of Columbia was the State; for if that power cannot be held to be violative of the due process invoked to sustain racial segregation in clause of the Fifth Amendment. In the schools, where attendance is comthese cases, the "separate but equal" pulsory and racial friction may be apdoctrine adopted in Plessy v. Ferguson prehended from the enforced commin(163 U.S. 537, 16 S.Ct. 1144) was held gling of the races, it cannot be sustained to have no place in modern public edu- with respect to public beach and bathcation.
house facilities, the use of which is The combined effect of these decisions entirely optional. of the Supreme Court is to destroy the The decision in Bolling v. Sharpe also basis of the decision of the Court of Ap- throw's strong light on the question bepeals of Maryland in Durkee v. Murphy, fore us for it admonishes us that in apand the decision of this court in Bover v. proaching the solution of problems of Garrett. The Court of Appeals of Mary- this kind we should keep in mind the land based its decision in Durkee v. Mur- ideial of equality before the law which phy on the theory that the segregation characterizes our institutions. The court of the races in the public parks of Balti- said, 347 U.S. at pages 499-500, 74 S.Ct. more was within the power of the Board at page 694: of Park Commissioners of the City to
"Classifications based solely upon make rules for the preservation of order
race must be scrutinized with parwithin the parks; and it was said that
ticular care, since they are contrary the separation of the races was normal
to our traditions and hence constitutreatment in Maryland and that the recru
tionally supect. As long ito as lation before the court was justified as aul
1890, this court declared the princicffort on the part of the authorities to
ple that the constitution of the avoid any contlict which might arise
United States, in its present form, from racial antipathies.
forlids, so far as civil and political (1, 2) It is now obvious, however, rights are concerned, discrimination thint sikre gittion cannot be justified as a by the general government, or by meds to preserve the public peace merely the states, against any citize'n bebecause the tangible facilities furnished Caiuse of his race.' And in Buchan'nonerace ille equal to those furnished in 1. Wirles. 2.10 US. 17. & S.Ct.
and injunctive relief. The District Court, Per Curiam, held that equal protections clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals.
16, 62 L.Ed. 149, the Court held that a statute which limited the right of a property owner to convey his property to a person of another race was, as in unreasonable discrimination, a denial of due process of law.
"Although the Court has not assumed to define liberty' with any great precision, that term is not contined to mere freedom from bodily restraint. Liberty under law extends to the full range of conduct which the individual is free to pursue, and it cannot be restricted except for a proper governmental objective. Segregation in public cducation is not reasonably related to any proper governmental objective, and thus it imposes on Negro children of the District of Columbia a burden that constitutes an arbitrary deprivation of their liberty in violation of the Due Process Clause." Reversed.
1. Constitutional Law 220
State may not, either directly or indirectly, deny to any person on account of race the right to attend any school maintained by such state. 2. Constitutional Law 220
If schools maintained by state are open to children of all races, no violation of equal protection of laws is involved, even though children of races voluntarily attend different schools. U.S.C.A.Const. Amend. 14. 3. Constitutional Law 220
Equal protection clause of constitution does not require integration of schools, but merely forbids discrimination, and does not forbid such segregation as occurs as result of voluntary action. U.S.C.A.Const. Amend. 14.
4. Constitutional Law 209
Equal protection clause of constitution is limitation upon exercise of power by state or state agencies, and is not limitation upon freedom of individuals. U.S.C.A.Const. Amend. 14.
Thurgood Marshall, New York, N. Y., Action against board of trustees of Harold R. Boulware, Columbia, S. C., for school district for declaratory judgment plaintiffs.
S. E. Rogers, Summerton, S. C., Rob- maintains. This, under the decision ou ert McC. Figg, Jr., Charleston, S. C., for the Supreme Court, the state may not do defendants.
directly or indirectly; but if the schools Before PARKER ind DOBIE, Circuit which it maintains are open to children Judges, and TIMMERMAN, District
of all races, no violation of the ConstituJudge.
tion is involved even though the children
of different races voluntarily attend difPER CURIAM.
ferent schools, as they attend different This Court in its prior decisions in
churches. Nothing in the Constitution this case, 98 F.Supp. 529; 103 F.Supp. takes away from the people freedom to
or in the decision of the Supreme Court 920, followed what it conceived to be the choose the schools they attend. The Conlaw as laid down in prior decisions of stitution, in other words, does not rethe Supreme Court, Plessy v. Ferguson; quire integration. It merely forbids dis163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256;
crimination. It does not forbid such Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172, that nothing in the segregation as occurs as the result of Fourteenth Amendment to the Consti- voluntary action. It merely forbids the tution of the United States forbids segre
use of governmental power to enforce gation of the races in the public schools
segregation. The Fourteenth Amendprovided equal facilities are accorded the ment is a limitation upon the exercise of children of all races. Our decision has power by the state or state agencies, not been reversed by the Supreme Court, a limitation upon the freedom of individ
uals. Brown v. Board of Education of Topeka, 349 U.S. 294, 75 S.Ct. 753, 757, which
The Supreme Court has pointed out has remanded the case to us with direc- that the solution of the problem in accord jon "to take such proceedings and enter with its decisions is the primary responach orders and decrees consistent with sibility of school authorities and that the this opinion as are necessary and proper function of the courts is to determine to admit to public schools on a racially whether action of the school authorities non-discriminatory basis with all delib- constitutes “good faith implementation erate speed the parties to these cases”. of the governing constitutional princiWhatever may have been the views of taken under its decision the Supreme
ples”. With respect to the action to be this court as to the law when the case Court said: was originally before us, it is our duty now to accept the law as declared by the
"Full implementation of these
constitutional principles may reSupreme Court.
quire solution of varied local school (1-4) Having said this, it is impor- problems. School authorities have tant that we point out exactly what the the primary responsibility for eluci. Supreme Court has decided and what it dating, assessing, and solving these has not decided in this case. It has not problems; courts will have to condecided that the federal courts are to sider whether the action of school take over or regulate the public schools of authorities constitutes good faith the states. It has not decided that the implementation of the governing states must mix persons of different constitutional principles. Because races in the schools or must require them of their proximity to local conditions to attend schools or must deprive them and the possible need for further of the right of choosing the schools they hearings, the courts which originally tend. What it has decided, and all that heard these ca an best perform
has decided, is that a state may not this judicial appraisal. Accordingly, deny to any person on account of race we believe it appropriate to remand the right to attend any school that it the cases to those courts.