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 59, 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.

8. 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).

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).

9. Declaratory Judgment 303

Where Act, which required segrega

tion 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).

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 property similarly situated. U.S.C.A. Const. Amend. 14.

13. Constitutional Law 215

The Fourteenth Amendment to the Constitution of the United States re

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 Owen, Hitchcock and Pool.

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

ог

"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 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 accommodations 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

a common carrier of passengers in said City and its police jurisdiction.

The plaintiffs are four Negro citizens who bring this action for themselves and on behalf of all other Negroes similarly situated. The defendants are the members of the Board of Commissioners and the Chief of Police of the City of Montgomery, the members of the Alabama Public Service Commission, The Mont gomery City Lines, Inc., and two of its employee drivers.

Each of the four named plaintiffs has either been required by a bus driver or by the police to comply with said segregation laws or has been arrested and fined for her refusal so to do. The plaintiffs, along with most other Negro citizens of the City of Montgomery, have since December 5, 1955, and up to the present time, refrained from making use of the transportation facilities provided by Montgomery City Lines, Inc. Plaintiffs and other Negroes desire and intend to resume the use of said buses if and when they can do so on a non-segregated baIsis without fear of arrest.

The members of the Board of Commissioners and the Chief of Police of the City of Montgomery in their answers to the complaint admit "that they seek to enforce the statutes of the State of Alabama and the ordinances of the City of Montgomery, Alabama", and further aver that "segregation of privately owned buses within cities within the State of Alabama is in accordance with the laws of the State of Alabama and the City of Montgomery."

employees in charge thereof to assign
passengers seats on the vehicles under
their charge 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
nurses 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 prohibiting 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:

The members of the Alabama Public Service Commission deny that they, in their official capacities as such members have any jurisdiction over, or have issued any orders relating to the separation of the races on buses operated wholly within the City of Montgomery and its police jurisdiction. On information and belief they allege that the members of the Board of Commissioners and the Chief of Police of said City "have sought to enforce by legal means constitutional and valid statutes and ordinances providing for separate but equal seating arrangements on buses operated in the City of Montgomery, Alabama, and its police ju

risdiction".

The Montgomery City Lines, Inc., admits that it has operated, and pursuant to orders of a State Court, continues to operate "its buses as required by the Statutes and Ordinances set out in the Complaint requiring it to provide equal but separate accommodations for the white and colored races". Without dispute the evidence is to the effect that, other than being separate, such accommodations are equal.

The defendants, Blake and Cleere, admit they are employees of the Montgomery City Lines and drivers of its buses, that as such they have acted pursuant to orders of said Company which "has operated its buses on the basis of racial segregation as required by said statutes and ordinances". They deny that as drivers of said buses they are exercising the powers of police officers in the enforcement of said statutes and ordinances.

"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 purpose of carrying out the provisions of the preceding section, and it shall be unlawful 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, if there is such a seat vacant."

3. Rule 23(a), Fed.Rules Civ.Proc. 28 U.S. C.A.