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a common carrier of passengers in said The members of the Alabama Public City and its police jurisdiction.

Service Commission deny that they, in The plaintiffs are four Negro citizens their official capacities as such members who bring this action for themselves and have any jurisdiction over, or have issued on behalf of all other Negroes similarly any orders relating to the separation of situated. The defendants are the mem- the races on buses operated wholly within bers of the Board of Commissioners and the City of Montgomery and its police the Chief of Police of the City of Mont- jurisdiction. On information and belief gomery, the members of the Alabama they allege that the members of the Public Service Commission, The Mont Board of Commissioners and the Chief of gomery City Lines, Inc., and two of its Police of said City "have sought to enemployee drivers.

force by legal means constitutional and Each of the four named plaintiffs has valid statutes and ordinances providing either been required by a bus driver or

for separate but equal seating arrangeby the police to comply with said segre- ments on buses operated in the City of gation laws or has been arrested and fined Montgomery, Alabama, and its police jufor her refusal so to do. The plaintiffs,

risdiction". along with most other Negro citizens of The Montgomery City Lines, Inc., adthe City of Montgomery, have since De- mits that it has operated, and pursuant cember 5, 1955, and up to the present to orders of a State Court, continues to time, refrained from making use of the operate “its buses as required by the transportation facilities provided by Statutes and Ordinances set out in the Montgomery City Lines, Inc. Plaintiffs Complaint requiring it to provide equal and other Negroes desire and intend to but separate accommodations for the resume the use of said buses if and when white and colored races". Without disthey can do so on a non-segregated ba- pute the evidence is to the effect that, sis without fear of arrest.

other than being separate, such accomThe members of the Board of Commis- modations are equal. sioners and the Chief of Police of the The defendants, Blake and Cleere, adCity of Montgomery in their answers to mit they are employees of the Montgomthe complaint admit “that they seek toery City Lines and drivers of its buses, enforce the statutes of the State of Ala- that as such they have acted pursuant to bama and the ordinances of the City of orders of said Company which “has opMontgomery, Alabama”, and further aver erated its buses on the basis of racial that “segregation of privately owned segregation as required by said statutes buses within cities within the State of and ordinances". They deny that as drivAlabama is in accordance with the laws ers of said buses they are exercising the of the State of Alabama and the City of powers of police officers in the enforceMontgomery."

ment of said statutes and ordinances.

employees in charge thereof to assiga passengers seats on the vehicles under their cbarge in such manner as to separate the white people from the negroes,

where there are both white and negroes on the same car; provided, however, that negro purses having in charge white children or sick or infirm white persons, may be assigned seats among white people.

"Nothing in this section shall be construed as probibiting the operators of such bus lines from separating the races by means of separate vehicles if they see fit.”

Section 11 of Chapter 6, Montgomery City Code of 1952, further provides:

"Any employee in charge of a bus operated in the city shall have the powers of a police officer of the city while in actual charge of any bus, for the pur. pose of carrying out the provisions of the preceding section, and it shall be unlaw. ful for any passenger to refuse or fail to take a seat among those assigned to the race to which he belongs, at the request of any such employee in charge, it

there is such a seat vacant." 3. Rule 23(a), Fed. Rules Civ.Proc. 28 U.S.

C.A.

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CIVIL RIGHTS

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The complaint prays for the convening stitutional and in conflict with said Pesca of a three-judge district court as pro- eral statutes. vided by Title 28 of the United States

Federal Jurisdiction Code, $ 2284; for a declaratory judge ment as to whether the enforcement of under Title 28, United States Code

,

(1) Federal jurisdiction is invoked said statutes and ordinances abridges the 1331 and 1343(3), and under Title 42 privileges and immunities of plaintiffs as United States Code, &$ 1981 and 1983

, citizens of the United States, or deprives footnote 6, supra. We think that the them of liberty without due process of validity of both the State statutes and the law, or denies to them the equal protec- City ordinances is in question, but if only tion of the laws, as secured by the Four. the City ordinances are involved, Federal teenth Amendment to the Constitution jurisdiction would still exist because the of the United States, and the rights and Constitution and statutes of Alabama auprivileges secured to them by Title 42, thorize the adoption of City ordinances United States Code, $8 1981 and 1983.6 “not inconsistent with the laws of the The complaint further prays that the de

state," ? and because the constitutional fendants be both temporarily and perma- refers to City ordinances adopted under

phrase "equal protection of the laws" nently enjoined from enforcing the stat- State authority as well as to State statutes and ordinances claimed to be uncoß- utes.

Jurisdiction of Three Judge District

Court A three judge district court is required efit a for the granting of “An interlocutory or of Va permanent injunction restraining the en. 875. forcement, operation or execution of any auth State statute by restraining the action of of St any officer of such State”. 28 U.S.C.A. § Title 2281. According to the complaint and the crimi answers, the separation of the races on offici the buses is required both by State stat. Alab utes and by City ordinances. Admitted- officia ly, therefore, State statutes are involved. are e The defendants claim, however, that the cial, statutes and ordinances are being en- activ forced by municipal officers only, and not perfc by “any officer of such State". 28 U.S. force

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of st C.A. $ 2281, supra.

If the members of the Alabama Public Ve Service Commission are proper parties

court defendant, a matter to be hereinafter discussed, then it must be conceded that the objection to the jurisdiction of the three judge district court fails. Irrespective

bama of the answer to that question, however,

Sout we think that the three judge district

S.Ct. court has jurisdiction.

if th The State statutes, footnote 1, supra, shou vest in the defendant bus drivers the au

uity, thority to enforce, and, notwithstanding

to e their insistence to the contrary, we think

State that when 80 engaged the bus drivers

tion clearly are officers of the State.

(2-4) The City Commissioners have trine important duties to perform in connection tiffs with the enforcement, operation, and exe- prive cution of State statutes. Under Alabama the law, a municipal corporation "is essen- court tially a public agency, a local unit of gove that

4. Fourteenth Amendment, $ 1:

"Al persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein tbey re. side. No State sball make or epforco any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, with. out due process of law; nor deny to any person within its jurisdiction the equal

protection of the laws." 5. "f 1981. Equal rights under the law

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to mako and enforce contracte, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and propo erty as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex. actions of every kind, and to no other."

"§ 1983 Civil action for deprivation of rights

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or im. munities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

nanc

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons with

in the jurisdiction of the United States." 7. Constitution of Alabama of 1901, $ 89;

Alabama Code of 1940, Title 37, 455. 8. Buchanan v. Warley, 245 U.S. 60, 38

S.Ct. 16, 62 L.Ed. 149; C1. 42 U.S.C.A. $ 1983; Carlson v. People of State of California, 310 U.S. 108, 60 S.Ct. 746, 84 L.Ed. 1104; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 688, 82 L.Ed. 949; North American Cold Storage Co. v. City of Chicago, 211 U.S. 306, 29 S.Ct. 101, 63 L.Ed. 185; City of El Paso v. Tesas Cities Gas Co., 3 Cir., 100 F.2d 501

9. Spielman Motor Sales Co. v. Dodge, 295

U.S. 89, 55 S.Ct. 678, 680, 79 L.Ed.
1322: Rorick v. Board of Commissioners,
307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed.
1242; City of Cleveland v. United States,
323 U.S. 320, 332, 65 S.Ct. 280, 80 L.Ed.
274; Watch Tower Bible & Tract So-
ciety v. City of Bristol, D.C.Conn., 24 F.
Supp. 57, affirmed 305 U.S. 572, 50 S.Ct.
246, 83 L.FA. 361; Supcrest Lumber Co.
1. North Carolina Park Commission, 4

Cir., 29 F.2d 823.
10. If, however, the proceedings were not

as the tio Со Inc 8.5

Cir II. I

S.C

such as to require the presence of three judges, the judgment would still be valid

142 F.Supp. 4540

mo 40 Su tis

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Jurisdiction of Three Judge District ernment, invested with a portion of the
Court

sovereign power of the state, for the benA three judge district court is required efit of its inhabitants.” Cooper v. Town for the granting of "An interlocutory or of Valley Head, 212 Ala. 125, 101 So. 874, permanent injunction restraining the en- 875. The defendant Chief of Police has forcement, operation or execution of any authority to make arrests for violations State statute by restraining the action of of State statutes, 1940 Code of Alabama, any officer of such State”. 28 U.S.C.A. s Title 15, § 152. The City Recorder in 2281. According to the complaint and the criminal cases has the power of an exanswers, the separation of the races on officio justice of the peace. 1940 Code of the buses is required both by State stat- Alabama, Title 37, § 585. All of the City utes and by City ordinances. Admitted- officials admit in their answers that they ly, therefore, State statutes are involved. are enforcing the State statutes. An offiThe defendants claim, however, that the cial, though localized by his geographic statutes and ordinances are being en- activities and the mode of his selection, is forced by municipal officers only, and not performing a State function when he enby “any officer of such State". 28 U.S. forces a statute which "embodies a policy C.A. § 2281, supra.

of state-wide concern”! If the members of the Alabama Public

Very clearly, the three judge district Service Commission are proper parties court has jurisdiction. 10 defendant, a matter to be hereinafter discussed, then it must be conceded that the

Comity objection to the jurisdiction of the three judge district court fails. Irrespective bama Public Service Commission v.

[5] The defendants, relying on Alaof the answer to that question, however, Southern Railway Co., 341 U.S. 341, 71 we think that the three judge district S.Ct. 762, 95 L.Ed. 1002, insist that even court has jurisdiction.

if the Federal court has jurisdiction, it The State statutes, footnote 1, supra, should, in its discretion as a court of eqvest in the defendant bus drivers the au- uity, and for reasons of comity, decline thority to enforce, and, notwithstanding to exercise such jurisdiction until the their insistence to the contrary, we think State courts have ruled on the constructhat when so engaged the bus drivers tion and validity of the statutes and ordiclearly are officers of the State.

The short answer is that doc(24) The City Commissioners have trine has no application where the plainimportant duties to perform in connection tiffs complain that they are being dewith the enforcement, operation, and exe- prived of constitutional civil rights, for cution of State statutes. Under Alabama the protection of which the Federal law, a municipal corporation "is essen- courts have a responsibility as heavy as tially a public agency, a local unit of gove that which rests on the State courts. 11

nances.

9. Spielman Motor Sales Co. v. Dodge, 295

U.S. 89, 55 S.Ct. 678, 680, 79 L.Ed. 1322; Rorick v. Board of Commissioners, 307 U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274; Watch Tower Bible & Tract So. ciety v. City of Bristol, D.C.Conn., 24 F. Supp. 57, affirmed 305 U.S. 572, 59 S.Ct. 246, 83 L.Fd. 301; Suncrest Lumber Co. v. North Carolina Park Commission, 4

Cir., 29 F.2d 823. 10. 11, however, the proceedings were not

such as to require the presence of three Judges, the judgment would still be valid

112 F.Supp.-1540

as the act of the court of one judge, since
that judge concurs and joins in the rendi-
tion of the judgment. Public Service
Commission v. Brasher Freight Lines,
Inc., 312 U.S. 621, 626, 61 S.Ct. 784,
85 L.Ed. 1083; O'Malley v. U. S., 8

Cir., 128 F.2d 676, 687.
II. Lane v. Wilson, 307 U.S. 268, 274, 50

S.Ct. 872, 83 L.Ed. 1281; Mitchell v.
Wright, 5 Cir., 154 F.2d 924, 926; Ro-
mero v. Weakley, 9 Cir., 226 F.2d 399,
402; Wilson v. Beebe, D.C.Del., 99 P.
Supp. 418, 420. Cf. Doud v. Hodge, 350
U.S. 485, 487, 76 S.Ct. 491.

Parties

following significant paragraph: “The [6] Without repeating the averments provisions of this section shall be adminof the complaint we hold that they are istered and enforced by the Alabama pubclearly sufficient to constitute this a class lic service commission in the manner in action on behalf of the four individual which provisions of the Alabama Motor plaintiffs and of all other Negro citizens Carrier Act of 1939 are administered and similarly situated. See Rule 23(a), F.R. enforced.” C.P.

Testifying as a witness, the President [7,8] It was probably not necessary of the Alabama Public Service Commisfor the plaintiffs to sue the members of sion admitted that on April 24, 1956, he the Board of Commissioners and the sent a telegram to the National City Chief of Police, not only as such but also Lines of Chicago, of which the Montgomindividually, when no relief is sought ery City Lines, Inc., is a subsidiary, readagainst them by way of damages. If, ing as follows: however, the plaintiffs' contentions are “As President of the Alabama Public sustained, these defendants are acting Service Commission, elected by the people not only in their capacities as municipal of Alabama, sworn to uphold the segreofficers, but also as officers of the State; gation laws of this state, which include and, further, are possibly transcending all forms of public transportation, I herethe scope of their office in any capacity by defy ruling handed down by the Unitwhen they compel obedience to statutes ed States Supreme Court ordering deand ordinances attacked as unconstitu- segregation on public carriers. Alabama tional. Moreover, in issuing and enforc- state law requiring segregation of the ing an injunction, a court of equity acts races on buses still stands. All public in personam. If, as we trust will be true, carriers in Alabama are hereby directed no relief becomes necessary against any to strictly adhere to all present existing of them in their individual capacities, segregation laws in our state or suffer the their joinder as individuals will prove consequences. harmless. The motion to strike said par

"78/ C. C. (Jack) Owen, President ties in their individual capacities is therefore denied.

Alabama Public Service" (9) The members of the Alabama That telegram was sent without the Public Service Commission object to their knowledge or concurrence of the other joinder as parties defendant and move to two Commissioners. dismiss the action as against them be

Since the 1945 Act expressly imposes cause they say that neither they nor the

on the Alabama Public Service ComCommission have any jurisdiction over the buses which are being operated with mission the duty of administering and in the City of Montgomery and its police tion of the races, and since the President

enforcing its requirements as to segregajurisdiction.12

of the Commission has acted so positively In the Act approved July 6, 1945, Gen- and affirmatively to that end, the motion eral Acts of Alabama 1945, p. 731, now to dismiss the action as against the memcarried into the pocket supplement of the bers of the Alabama Public Service Com1940 Code of Alabama as Title 48, § 301 mission should be and the same is here (31a), see footnote 1, supra, appears the by denied.13

12. Compare Code of Alabama 1940, Title

48, § 239 with | 2 of the Alabnma Motor Carrier Act of 1939 carried into the pocket supplement of the Alabama Codo as Title 48, $ 301 (2).

13. If, in law and fact, the Commission has

Do jurisdiction over the operation of the buses here involved, the retention of the members of the Commission as parties defendant will be harmless to them, even it erroneous.

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Validity of Separate But Equal Doc- ment before the law for all persons withtrine as Applied to Intrastate out regard to race or color. See e. g. Transportation

Strauder v. West Virginia, 100 U.S. 303, The ultimate question is whether the 25 L.Ed. 664; Buchanan v. Warley, 245 statutes and ordinances requiring the U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Gong segregation of the white and colored Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 races on the common carrier motor buses L.Ed. 172; Shelley v. Kraemer, 334 U.S. in the City of Montgomery and its police 1, 68 S.Ct. 836, 92 L.Ed. 1161. jurisdiction are unconstitutional and in- In Plessy v. Ferguson, 163 U.S. 537, valid. Unless prohibited by the Consti- 16 S.Ct. 1138, 41 L.Ed. 256, decided in tution of the United States, the power 1896, the Supreme Court held as to intrato require such segregation is reserved state commerce that a Louisiana statute, to the States or to the people.—See Tenth LSA-R.S. 45:528 et seq., requiring railAmendment.

way companies to provide equal but sep[10] In their private affairs, in the arate accommodations for the white and conduct of their private businesses, it is colored races was not in conflict with clear that the people themselves have the the provisions of the Fourteenth Amendliberty to select their own associates and ment. That holding was repeatedly folthe persons with whom they will do busi- lowed in later cases. Chesapeake & Ohio ness, unimpaired by the Fourteenth Ry. Co. v. Kentucky, 1900, 179 U.S. 388, Amendment. The Civil Rights Cases,

21 S.Ct. 101, 45 L.Ed. 244; Chiles v. 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835. In- Chesapeake & Ohio Ry. Co., 1910, 218 deed, we think that such liberty is guar

U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; Mcanteed by the due process clause of that Cabe v. Atchison, T. & S. F. Ry. Co., 1914, Amendment.

235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169.

In Morgan v. Virginia, 1946, 328 U.S. (11] There is, however, a difference, 373, 66 S.Ct. 1050, 90 L.Ed. 1317, the a constitutional difference, between vol- Court held that a state statute requiring untary adherence to custom and the per- segregated seats for Negro passengers petuation and enforcement of that cus

on interstate buses was an unconstitutom by law. Shelley v. Kraemer, 334 U.S. tional burden of interstate commerce. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161. The In Henderson v. United States, 1950, 339 Fourteenth Amendment provides that U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, the "No State shall

deprive any Court held that interstate railroad regperson of life, liberty, or property, with- ulations and practices assigning a sepout due process of law; nor deny to any arate table in a dining car to Negroes person within its jurisdiction the equal contravened the Interstate Commerce protection of the laws."

Act, 49 U.S.C.A. § 1 et seq. The Court (12, 13] Those provisions do not in- referred to the statutory right as "a terfere with the police power of the fundamental right of equality of treatStates so long as the state laws operate ment,” and cited cases construing the alike upon all persons and property sim- Fourteenth Amendment, see 339 U.S. 825, ilarly situated. Barbier v. Connolly, 113 70 S.Ct. 847, though the Court did not U.S. 27, 31, 32, 5 S.Ct. 357, 28 L.Ed. reach the constitutional question. The 923. That Amendment "merely requires reasoning applied was similar to that emthat all persons subjected to such legis- ployed in Shelley v. Kraemer, 334 U.S. lation shall be treated alike, under like 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161, where circumstances and conditions, both in the the Court recognized that the underlying privileges conferred and in the liabilities philosophy of the Fourteenth Amendimposed.” Marchant v. Pennsylvania ment is the equality before the law of Railroad Co., 153 U.S. 380, 390, 14 S.Ct. each individual. 894, 897, 38 L.Ed. 751. The equal pro- In the field of college education, begintection clause requires equality of treat- ning in 1938 and continuing to the pres

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