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cation, 1954, 847 U.S. 488, 74 S.Ct. 686, 98 L.Ed. 873 and 1955, 849 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, do not compel the mixing of the different races in the public schools. No general reshuffling of the pupils in any school system has been commanded. The order of that Court is simply that no child shall be denied admission to a school on the basis of race or color. Indeed, just so a child is not through any form of compulsion or pressure required to stay in a certain school, or denied transfer to another school, because of his race or color, the school heads may allow the pupil, whether white or Negro, to go to the same school as he would have attended in the absence of the ruling of the Supreme Court. Consequently, compliance with that ruling may well not necessitate such extensive changes in the school system as some anticipate.

Order Granting Injunction

This cause came on to be heard on the 30th day of July, 1956 upon the complaint, upon the motion of the defendants to dismiss the complaint and the affidavits in support thereof, upon the motions of the plaintiffs to drop certain persons and add others as parties plaintiff, upon the stipulation of the parties that the action not be heard before July 23, 1956, and upon the documents offered in evidence at said hearing by agreement, and was argued by counsel.

Upon consideration whereof, after granting the said motions for the dropping and adding of parties, the court finds, concludes, and orders as follows:

1. The court treats said motion to dismiss as a motion for summary judgment and is of the opinion thereon as follows:

[2] (a) That the defendant, County School Board of Arlington County, is suable in this court, because if acting as charged in the complaint, it is not acting as an agency of the State of Virginia;

(b) That the defendant, T. Edward Rutter, Division Superintendent of Schools of the County of Arlington, is

suable in this action for the same reason as the said board is suable;

(c) That the complaint states a claim against each of said defendants upon which, if proved, relief can be granted;

(d) That, as appears from the said documentary evidence, the plaintiffs before instituting this suit had exhausted all administrative remedies then and now available to them, including the administrative steps set forth in section 22-57 Code of Virginia 1950, in that, they have since July 28, 1955, in effect maintained a continuing request upon the defendants, the County School Board and the Division Superintendent of Schools, for admission of Negro children to the public schools of Arlington County on a non-racial basis, and said request has been denied, or no action taken thereon, the equivalent of a denial thereof;

(e) That this suit is not otherwise premature; and

(f) That the granting of the relief prayed in the complaint would not constitute the regulation and supervision by this court of the public schools of Arlington County:

Therefore, it is adjudged, ordered and decreed that said motion to dismiss the complaint, including summary judgment for the defendants, be, and it is hereby, denied.

[3] 2. The court proceeding to inquire if final judgment may now be entered in the action, it appears to the court from an examination of the pleadings, the said affidavits, and the said documentary evidence, as well as from the interrogation of counsel, that there is no genuine issue as to any material fact in this case, and that on the admissions of record and the uncontrovertible allegations of the complaint, summary judgment should be granted the plaintiffs:

Therefore, it is further adjudged, ordered, and decreed that effective at the times and subject to the conditions hereinafter stated, the defendants, their successors in office, agents, representatives, servants, and employees be, and each of them is hereby, restrained and enjoined

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from refusing on account of race or color to admit to, or enroll or educate in, any school under their operation, control, direction, or supervision any child otherwise qualified for admission to, and enrollment and education in, such school.

and decision of such complaint, before applying to this court for a decision on whether any such rule or assignment violates said injunction.

3. Considering the total number of children attending the public schools of Arlington County, Virginia, and the number of whites and Negroes, respectively, in the elementary schools, junior high schools, and senior high schools, the relatively small territorial size of the County, its compactness and urban character, and the requisite notice to the school officials, as well as the period most convenient to the children and school officials, of and for making the transition from a racial to a nonracial school basis, and weighing the public considerations, including the time needed by the defendants to conform to any procedure for such transition as may be prescribed by the General Assembly of Virginia at its extra session called by the Governor for August 27, 1956, and weighing also the personal interests of the plaintiffs, the court is of the opinion that the said injunction hereinbefore granted should be, and it is hereby made, effective in respect to elementary schools at the beginning of the second semester of the 1956-1957 session, to-wit, January 31, 1957, and in respect to junior and senior high schools at the commencement of the regular session for 19571958 in September 1957.

4. The foregoing injunction shall not be construed as nullifying any State or local rules, now in force or hereafter promulgated, for the assignment of children to classes, courses of study, or schools, so long as such rules or assignments are not based upon race or color; nor, in the event of a complaint hereafter made by a child as to any such rule or assignment, shall said injunction be construed as relieving such child of the duty of first fully pursuing any administrative remedy now or hereafter provided by the defendants or by the Commonwealth of Virginia for the hearing

And jurisdiction of this cause is retained with the power to enlarge, reduce, or otherwise modify the provisions of said injunction or of this decree, and this cause is continued generally.

KEY BUMBER SYSTEM

Aurelia S. BROWDER, and Susie McDonald, and Claudette Colvin, by Q. P. Col. vin, next friend, and Mary Louise Smith, by Frank Smith, next friend, and others similarly situated, Plaintiffs,

V.

W. A. GAYLE, Clyde Sellers and Frank Parks, individually and as members of the Board of Commissioners of the City of Montgomery, Alabama, and Goodwyn J. Ruppenthal, individually and as Chief of Police of the City of Montgomery, Alabama, and The Montgomery City Lines, Inc., a Corporation, and James F. Blake, and Robert Cleere, and C. C. (Jack) Owen, Jimmy Hitchcock, and Sibyl Pool, as members of the Alabama Public Service Commission, Defendants.

No. 1147.

United States District Court M. D. Alabama, N. D.

June 5, 1956.

(Cite as 142 F. Supp. 707)

Action for declaratory judgment that statutes of state and ordinances of City of Montgomery, Alabama, requiring segregation of white and colored races on motor buses of the City of Montgomery and its police jurisdiction were unconstitutional and also to enjoin enforcement of such statutes and ordinances. The District Court, Rives, Circuit Judge, held that statutes and ordinances requiring segregation violated due process and equal protection of law clauses of fourteenth amendment to Constitution of United States.

Order accordingly.

Lynne, District Judge, dissented.

1. Courts 282.2(6)

Where action was brought in federal district court for declaratory judgment that segregation statutes and ordinances were unconstitutional and in conflict with federal statutes, and also to enjoin enforcement of those statutes and ordinances and statutes involved authorized adoption of city ordinances not inconsistent with laws of state, federal district court would have jurisdiction of the suit even if only city ordinances were involved, as constitutional phrase "equal protection of the laws" refers to city ordinances adopted under state authority as well as to state statutes. Code Ala.

1940, Tit. 37, § 455; Tit. 48, §§ 301(31a) to 301 (31c); 28 U.S.C.A. §§ 1331, 1343 (3); 42 U.S.C.A. §§ 1981, 1983; Const. Ala.1901, § 89.

2. Municipal Corporations 53, 57

Under Alabama law, a municipal corporation is essentially a public agency, a local unit of government, invested with a portion of the sovereign power of the state, for the benefit of its inhabitants. 28 U.S.C.A. § 2281; Code Ala.1940, Tit. 15, § 152; Tit. 37, § 585.

3. Officers 110

An official, though localized by geographic activities and mode of his selection, is performing a state function when he enforces a statute which embodies a policy of statewide concern.

4. Courts 101

Where action for declaratory judgment that segregation statutes and ordinances were unconstitutional and also to enjoin enforcement of such statutes and ordinances was brought against city commissioners of Montgomery, Alabama, and such city officials admitted in their answers they were enforcing state segregation statutes, three judge federal district court had jurisdiction of the action under statute providing a three judge district court is required for granting of an interlocutory or permanent injunction restraining an enforcement of any state statute by restraining action of any officer of state. 28 U.S.C.A. § 2281.

5. Courts 490

Where plaintiffs brought action in which they alleged they were being deprived of constitutional civil rights, for the protection of which the federal courts have a responsibility as heavy as that which rests on state courts, federal district court would not in its discretion as a court of equity, and for reasons of comity, decline to exercise jurisdiction until state courts ruled on construction and validity of statutes and ordinances involved. Code Ala.1940, Tit. 48, §§ 301 (31a) to 301 (31c).

6. Federal Civil Procedure ←181

Where action for declaratory judgment that statutes and ordinances which require segregation of white and colored races on motor buses of certain city were unconstitutional and also to enjoin enforcement of such statutes and ordinances, was brought by four Negro citizens, such action was a class action on behalf of four individual plaintiffs, who had suffered arrests because of violations of statutes and ordinances, and also on behalf of all other Negro citizens similarly situated. Fed.Rules Civ.Proc. rule 23(a), 28 U.S.C.A.; Code Ala.1940, Tit. 48, §§ 301 (31a) to 301 (31c).

7. Injunction ☞1

In issuing and enforcing an injunction, a court of equity acts in personam. 8. Federal Civil Procedure 388

Where action for declaratory judgment that statutes and ordinances requiring the segregation of white and colored races on motor buses in certain municipality were unconstitutional and to enjoin enforcement of such statutes and ordinances was brought against members of board of commissioners of municipality and chief of police not only in their official capacity but also individually, although no relief was sought against defendants by way of damages, motion to strike parties as defendants in their individual capacities would be denied, in view of fact such officers were acting as officers of state and also might possibly be transcending scope of their office in

any capacity when they compel obedience to statutes and ordinances attacked as unconstitutional. Code Ala.1940, Tit. 48, §§ 301 (31a) to 301 (31c).

303

quires that all persons subjected to state legislation affecting their individual rights and property rights shall be treated alike, under like circumstances and conditions, both in privileges conferred and in liabilities imposed and the equal protection clause of that amendment requires equality of treatment before the law for all persons without regard to

9. Declaratory Judgment

Where Act, which required segregation of white and colored races on motor buses of municipality, provided that such act would be administered and enforced by the Alabama Public Service Commission in manner that provisions of Alabama Motor Carrier Act of 1939 are administered and enforced, and president of Public Service Commission acted positively and affirmatively to that end, Commission did have jurisdiction over buses operated within City of Montgomery and members of Commission were properly joined as parties defendant in action to have Act declared unconstitutional. Code Ala.1940, Tit. 48, §§ 239, 301(2).

race or color. U.S.C.A.Const. Amend. 14.

10. Constitutional Law 251

In the conduct of private businesses and private affairs, people themselves have liberty to select their own associates and persons with whom they will do business unimpaired by the Fourteenth Amendment to the Federal Constitution, and such liberty is guaranteed by due process clause of that amendment. U.S. C.A.Const. Amend. 14.

11. Constitutional Law 215

There is a constitutional difference between voluntary adherence to custom and perpetuation and enforcement of that custom by law.

12. Constitutional Law 212, 253

Provision of Fourteenth Amendment that no state shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction equal protection of laws, does not interfere with police power of states so long as state laws operate alike upon all persons and U.S.C.A. property similarly situated. Const. Amend. 14.

14. Statutes 158

A statute can be repealed by implication.

15. Courts 90 (1)

A judicial decision, which is simply evidence of law and not the law itself, may be so impaired by later decisions as no longer to furnish any reliable evidence.

13. Constitutional Law 215

The Fourteenth Amendment to the Constitution of the United States re

16. Carriers 2

Constitutional Law 218, 297

Statutes and ordinances requiring segregation of white and colored races on motor buses of a common carrier of passengers in City of Montgomery, Alabama, and its police jurisdiction, violate due process and equal protection of law clauses of fourteenth amendment to ConU.S.C.A. stitution of United States. Const. Amend. 14.

Charles D. Langford, Fred D. Gray, Montgomery, Ala., and Robert L. Carter, New York City, for plaintiffs.

Walter J. Knabe, Drayton N. Hamilton, and Herman H. Hamilton, Jr., Montgomery, Ala., for defendants Gayle, Sellers, Parks, and Ruppenthal.

Robert Thrun, New York City, for defendants Blake, Cleere, and Montgomery City Lines.

John Patterson, William N. McQueen, Gordon Madison, William F. Black, Montgomery, Ala., for defendants Hitchcock and Pool.

Owen,

Before RIVES, Circuit Judge, and and JOHNSON, District LYNNE

Judges.

RIVES, Circuit Judge.

Statement of the Case

The purpose of this action is to test the constitutionality of both the statutes

1. Title 48, § 301 (31a, b, c), Code of Alabama of 1940, as amended, which provide:

" 301(31a). Separate accommodations for white and colored races.-All passenger stations in this state operated by any motor transportation company shall have separate waiting rooms or space and separate ticket windows for the white and colored races, but such accommodations for the races shall be equal. All motor transportation companies or operators of vehicles carrying passengers for hire in this state, whether intrastate or interstate passengers, shall at all times provide equal but separate accommodations on each vehicle for the white and colored races. The conductor or agent of the motor transportation company in charge of any vehicle is authorized and required to assign each passenger to the division of the vehicle designated for the race to which the passenger belongs; and, if the passenger refuses to occupy the division to which he is assigned, the conductor or agent may refuse to carry the passenger on the vehicle; and, for such refusal, neither the conductor or agent of the motor transportation company nor the motor transportation company shall be liable in damages. Any motor transportation company or person violating the provisions of this section shall be guilty of a misdemeanor and, upon conviction, shall be fined not more than five hundred dollars for each offense; and each day's violation of this section shall constitute a separate offense.

"The provisions of this section shall be administered and enforced by the Alabama public service commission in the manner in which provisions of the Alabama Motor Carrier Act of 1939 are administered and enforced. (1945, p. 731, appvd. July 6, 1945.)

"301(31b). Operators of passenger stations and carriers authorized to segregate white and colored races.-All passenger stations in this state operated by or for the use of any motor transportation company shall be authorized to provide separate waiting rooms, facilities, or space, or separate ticket windows, for the white and colored races but such ac commodations for the races shall be equal. All motor transportation companies and operators of vehicles, carrying

of the State of Alabama1 and the ordinances of the City of Montgomery' which require the segregation of the white and colored races on the motor buses of the Montgomery City Lines, Inc.,

passengers for hire in this state, whether intrastate or interstate passengers, are authorized and empowered to provide separate accommodations on each vehicle for the white and colored races. Any officer or agent of such motor transportation company or operator, in charge of any vehicle, is authorized to assign or reassign each passenger or person to a division, section or seat on the vehicle designated by such company or operator, or by such officer or agent, for the race to which the passenger or person belongs; and if the passenger or person refuses to occupy the division, section or seat to which he is so assigned, such officer or agent may refuse further to carry the passenger on the vehicle. For such refusal neither the officer nor agent, nor the motor transportation company, nor operator, shall be liable in damages. (1947, p. 40, § 1, appvd. July 18, 1947.)

"301 (31c). Failure to comply with rules and regulations as to segregation of white and colored races.-It shall be unlawful for any person willfully to refuse or fail to comply with any reasonable rule, regulation, or directive of any operator of a passenger station in this state operated by or for the use of any such motor transportation company, or of any authorized officer or agent of such operator, providing separate waiting rooms, facilities, or space, or separate ticket windows, for white and colored races; or willfully to refuse or fail to comply with any reasonable assignment or reassignment by any officer or agent in charge of any vehicle of any such motor transportation company or of any operator of vehicles carrying passengers for hire, of any passenger or person to a division, section, or seat on such vehicle designated by such officer or agent for the race to which such passenger or person belongs; any person so refusing or failing to comply with any such reasonable rule, regulation, or assignment, as aforesaid, shall be guilty of a misdemeanor and upon conviction shall be fined not more than $500.00 for such offense. (1947, p. 40, § 2, appvd. July 18, 1947.)" 2. Section 10, Chapter 6, Code of the City of Montgomery, 1952, which provides:

"Every person operating a bus line in the city shall provide equal but separate accommodations for white people and negroes on his buses, by requiring the

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