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ent time, the Court has first weakened v. Sharpe, 1954, 347 U.S. 497, 74 S.Ct. the vitality of, and has then destroyed, 693, 98 L.Ed. 884, the separate but equal the separate but equal concept. State of doctrine was repudiated in the area Missouri ex rel. Gaines v. Canada, 1938, where it first developed, i. e., in the field 305 U.S. 337, 69 S.Ct. 232, 83 L.Ed. 208; of public education. On the same day the Sipuel v. Board of Regents of University Supreme Court made clear that its rulof Oklahoma, 1948, 332 U.S. 631, 68 S.Ct. ing was not limited to that field when it 299, 92 L.Ed. 247; Fisher v. Hurst, 1948, remanded "for consideration in the light 333 U.S. 147, 68 S.Ct. 389, 92 L.Ed. 604; of the Segregation Cases

and Sweatt v. Painter, 1950, 339 U.S. 629, 70 conditions that now prevail” a case in. S.Ct. 848, 94 L.Ed. 1114; McLaurin v. volving the rights of Negroes to use the Oklahoma State Regents, 1950, 339 U.S. recreational facilities of city parks. Muir 637, 70 S.Ct. 851, 94 L.Ed. 1149; State v. Louisville Park Theatrical Associaof Florida ex rel. Hawkins v. Board of tion, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 Control of Florida, 1954, 347 U.S. 971, L.Ed. 1112. 74 S.Ct. 783, 98 L.Ed. 1112; Tureaud v. Later the Fourth Circuit expressly Board of Supervisors of Louisiana State repudiated the separate but equal docUniversity, 1954, 347 U.S. 971, 74 S.Ct. trine as applied to recreational centers. 784, 98 L.Ed. 1112; Lucy v. Adams, 1955, Dawson v. Mayor and City Council of 350 U.S. 1, 76 S.Ct. 33; State of Flori- Baltimore, 4 Cir., 220 F.2d 386, 387. Its da ex rel. Hawkins v. Board of Con- judgment was affirmed by the Supreme trol, 350 U.S. 413, 76 S.Ct. 464; Board Court, 350 U.S. 877, 76 S.Ct. 133. The of Trustees of University of North doctrine has further been repudiated in Carolina v. Frasier, 1956, 350 U.S. 979, holdings that the cities of Atlanta and of 76 S.Ct. 467.

Miami cannot meet the test by furnishThe separate but equal concept had its ing the facilities of their municipal golf birth prior to the adoption of the Four- courses to Negroes on a segregated basis. teenth Amendment in the decision of a Rice v. Arnold, 340 U.S. 848, 71 S.Ct. 77, Massachusetts State court relating to 95 L.Ed. 621; Holmes v. City of Atlanta, public schools. Roberts v. City of Bos. 350 U.S. 879, 76 S.Ct. 141. ton, 1849, 5 Cush. 198, 59 Mass. 198. The (14, 15) Even a statute can be repealdoctrine of that case was followed in ed by implication. A fortiori, a judicial Plessy v. Ferguson, supra. In the School decision, which is simply evidence of the Segregation Cases, Brown v. Board of law and not the law itself, may be so imEducation of Topeka, 1954, 347 U.S. 483, paired by later decisions as no longer to 74 S.Ct. 686, 98 L.Ed. 873 and Bolling furnish any reliable evidence. 16

14. This principle is aptly illustrated by

the difference with which the Fourth Cir. cuit treated Plessyv. Ferguson as binding precedent in 1950, Boyer v. Gar. rett, 183 F.2d 582 and in 1955, Flem. ming v. South Carolina Electric & Gas Co., 224 F.2d 752. In their change of views that distinguished Court headed by Chief Judge Parker was governed by the rule best stated by Judge Parker himself, speaking for a three judge district court in Barpette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251, 252253:

"Ordinarily we would feel constrained to follow an apreversed decision of the Supreme Court of the United States, whether we agreed with it or not. It is truo that decisions are but evidences of the law and not the law itsell; but the

decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The derelopments with respect to the Gobitis case (Minersville School District V. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375) however, are such that we do not feel that it is incumbent upon us to acrept it as binding authority. Of the seven justices now members of the Supreme Court who participated in that decision, four have given public expression to the view that it is unsound, the present Chief Justice in his dissenting opinion rendered therein and three other justices id & spe. cial dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The majority of the court in Jones v. City of Opelika, more

We cannot in good conscience perform white and colored races on the motor our duty as judges by blindly following buses of a common carrier of passengers the precedent of Plessy v. Ferguson, su- in the City of Montgomery and its police pra, when our study leaves us in complete jurisdiction violate the due process and agreement with the Fourth Circuit's equal protection of the law clauses of the opinion 15 in Flemming v. South Carolina Fourteenth Amendment to the ConstituElectric & Gas Co., 224 F.2d 752, appeal tion of the United States. This holding dismissed April 23, 1956, 351 U.S. 901, 76 does not, however, become effective unS.Ct. 692, that the separate but equal til the entry of formal judgment. The doctrine can no longer be safely followed parties are requested to submit to the as a correct statement of the law. In Court in writing within two weeks from fact, we think that Plessy v. Ferguson the date of this opinion their views as to has been impliedly, though not explicitly, the form of judgment to be entered, and overruled, and that, under the later deci- as to whether such judgment should be sions, there is now no rational basis upon stayed in the event of an appeal. which the separate but equal doctrine can be validly applied to public carrier

LYNNE, District Judge (dissenting). transportation within the City of Mont- Only a profound, philosophical disgomery and its police jurisdiction. The agreement with the ultimate conclusion application of that doctrine cannot be of the majority “that the separate but justified as a proper execution of the equal doctrine can no longer be safely state police power.16

followed as a correct statement of the

law” would prompt this, my first dissent. (16) We hold that the statutes and But I should consider myself recreant ordinances requiring segregation of the both to conscience and duty in withhold

over, thought it worth while to distinguish the decision in the Gobitis case, instead of relying upon it as support. ing authority. Under such circumstances and believing, as we do, thint the fing solute here required is violative of religious liberty when required of persons holding the religious views of plaintiffs, we feel that we would be recreant to our duty as judges, it through a blind follow. ing of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by con. stitutional guaranties."

To like effect is the opinion of Judge Frank for the Second Circuit in Perkins v. Endicott Johnson Corporation, 128 F. 20 208, 217-218:

“We would stultify ourselves and un. necessarily burden the Supreme Court it-ndhering to the dogma, obviously fictional to any reader of its history, that alterations in that court's principles of decision never occur unless recorded in ex. plicit statements that carlier decisions nrc overruled-we stubbornly and literally followed decisions which have been, but not too ostentatiously, modified. "The life of the law,' as Mr. Justice Holmes anid, 'bas been experience.' Legal doc. trince. As first enunciated, often prove to be inadequate under the impact of en.

suing experience in their practical application. And when a lower court per: ceives a pronounced new doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be sure, to follow not to resist it." See also United States v. Gi. rouard, 1 Cir., 149 F.2d 760, 765, dissenting opinion of Judge Woodbury, reversed 328 U.S. 61, 66 S.Ct. 826, 90 L. Ed. 1084; New England Mutual Life Ins. Co. v. Welch, 1 Cir., 153 F.2d 260, 262; Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636; opinion by Judge Learned Iland; Spector Motor Service v. Walsh, 2 Cir., 139 F.2d 809, 814, opinion by Circuit Judge Clark; Gardella v. Chandler, 2 Cir., 172 F.2d 402, 409; United States v. Ullmann, 2 Cir., 221 F.2d 700, 762; "The Attitude of Lower Courts to Changing Prece.

dents", 50 Yale L.J. 1448. 15. That opinion is entitled to great respect,

especially in view of the distinction and learning of the judges who compose that Court, Circuit Judges Parker, Soper and

Dobie. 16. Shelley v. Kraemer, 334 U.S. 1, 21, 68

S.Ct. 836, 92 L.Ed. 1161; Morgan v. Virginin, 328 U.S. 373, 380, 66 S.Ct. 1050, 90 L.Ed. 1317; Buchanan v. War. ley, 245 U.S. 60, 74, 38 S.Ct. 16, 62 L Ed. 149; City of Birmingham v. Monk, 5 Cir., 183 F.2d 859, 802.

ing my views because of the affection and lows the law as stated by the Suesteem which I bear for my associates. preme Court and leaves any need for

For many years as a trial judge in the modification thereof to that Court. state and federal systems I have en

*" (Emphasis supplied.) deavored faithfully to understand and The majority recognize, it was concedapply precedents established by the opin- ed in oral arguments by counsel for plainions of appellate courts. This was not a tiffs, that Plessy v. Ferguson, 1896, 163 blind obedience to a legalistic formula U.S. 637, 16 S.Ct. 1138, 41 L.Ed. 256, is embodied in the rule of stare decisis. It precisely in point, and that its holding was the result of a simple belief that the has been repeatedly followed in later laws which regulate the conduct, the af- transportation cases. Its authority obfairs, and sometimes the emotions of our viously was unaffected by the action of people should evidence not only the ap- the Supreme Court in dismissing the appearance but also the spirit of stability. peal in South Carolina Electric & Gas Co.

Judges of trial courts frequently find v. Flemming, 351 U.S. 901, 76 S.Ct. 692. themselves in disagreement with the The citation of Slaker v. O'Connor, 278 rationale of an old, but clearly controlling U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258, is precedent. That is so because their posi- convincing that it did not place the tions do not insulate them from those stamp of its approval upon the decision changing physical and metaphysical con- of the Fourth Circuit in Flemming v. cepts which form a part of the life proc- South Carolina Electric & Gas Co., 224 ess. But they are neither designed nor F.2d 752, but simply concluded that its equipped to perform the legislative func- judgment was not final and hence that the tion of putting off the old and putting on appeal did not lie. 28 U.S.C.A. § 1254(2). the new. To arrogate to themselves this

In complete agreement with the Fourth prerogative, in my humble opinion, would Circuit's opinion in Flemming that the be the first, fatal step in making hollow

separate but equal doctrine can no long. the proud boast that ours is a “gov- er be safely followed as a correct stateernment of laws and not of men."

ment of the law, the majority conclude Judge Rives, just the other day, deliv- that Plessy v. Ferguson, in which that ering the opinion of the Court of Appeals doctrine made its first appearance sixty for the Fifth Circuit, sitting en banc, years ago, has been impliedly, though not in Howard v. United States, 232 F.2d explicitly overruled. While I share their 274, 275, stated my position, clearly and great respect for Judges Parker, Soper concisely:

and Dobie, I do not at all agree. "In the face of such recognition A comparatively new principle of perby the Supreme Court of a test of nicious implications has found its way criminal responsibility, we do not into our jurisprudence. Lower courts feel at liberty to consider and de may feel free to disregard the precise cide whether in our opinion the re- precedent of a Supreme Court opinion if cent modification of such test in the they perceive a “pronounced new doctrinDistrict of Columbia is sound or un- al trend" in its later decisions which sound, nor whether some other test would influence a cautious judge to should be adopted. This Circuit fol- prophesy that in due time and in a proper

1. Chesa peake & Ohio Ry. Co. v. Ken

tucky, 1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio Ry. Co., 1910, 218 U.S. 71. 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison, T & S. F. Ry. Co., 1914, 235

U.S. 151, 35 S.Ct. 69, 59 L.Ed. 109. 2. Barnette v. West Virginia State Board

of Education, D.C.1942, 47 F.Supp. 251;

Perkins v. Endicott Johnson Corporation, 2 Cir., 1942, 128 F.2d 208; Spector Jio. tor Service v. Walsh, 2 Cir., 1943, 139 F. 2d 809: Gardella v. Chandler, 2 Cir.. 1949, 172 F.2d 402, 409: l'oited States v. Ullmann, 2 Cir., 1937, 221 F.2d 700; United States v. Girouard, i Cir., 1945, 149 F.2d 700; 50 Yale Law Journal 1448.

case such established precedent will be overturned explicitly. Peculiarly appropriate in this context is the following language of Judge Woodbury, writing for the First Circuit in New England Mutual Life Ins. Co. v. Welch, 153 F.2d 260, 262:

"Furthermore we find no indication from anything said therein of a purpose to depart from the rule of the earlier decisions cited above. Under these circumstances we see no uccasion even to consider the basic question whether we would adopt the doctrine of Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251, 253, and Spector Motor Service v. Walsh, 2 Cir., 139 F.2d 809, 817, 823, and in extraordinary situations disregard controlling decisions of the Supreme Court not yet explicitly overruled. It will suffice to say that we would feel disposed to consider taking such a course only when there are the clearest indications that the controlling decision of the Supreme Court, though not formally overruled, would no longer be followed by that Court and we find no such indications here."

In 1950, the Fourth Circuit had before it the case of Boyer v. Garrett, 183 F.2d 582, involving an officially adopted rule providing for the segregation of races in athletic activities in the public parks and playgrounds in the City of Baltimore. In affirming the judgment of the District Court, the same judges who decided Flemming held:

"The contention of plaintiffs is that, notwithstanding this equality of treatment, the rule providing for segregation is violative of the provisions of the federal Constitution. The District Court dismissed the complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; and the principal argument made on appeal is that the authority of Plessy v. Ferguson has been so weakened by subsequent decisions that we should no longer consider it as binding. We do not

think, however, that we are at liberty thus to disregard a decision of the Supreme Court which that court has not seen fit to overrule and which it expressly refrained from reexamining, although urged to do so, in the very recent case of Sweatt v. Painter, [339 U.S. 629) 70 S.Ct. 848 [94 L.Ed. 1114). It is for the Supreme Court, not us, to overrule its decisions or to hold them outmoded."

In 1955, in Flemming, an intrastate transportation case, reversing the district judge, the court wrote:

"We do not think that the separate but equal doctrine of Plessy v. Ferguson, supra, can any longer be regarded as a correct statement of the law. That case recognizes segregation of the races by common carriers as being governed by the same principles as segregation in the public schools; and the recent decisions in Brown v. Board of Education (of Topeka), 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, which relate to public schools, leave no doubt that the separate but equal doctrine approved in Plessy v. Ferguson has been repudiated. That the principle applied in the school cases should be applied in cases involving transportation, appears quite clearly from the recent case of Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in dining cars was held violative of a section of the interstate commerce act providing against discrimination."

Within this five year interval the Supreme Court had spoken pertinently but once, in the case of Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L. Ed. 884, did not discuss Plessy v. Ferguson and appears to have been decided on a parity of reasoning. My study of Brown has convinced me that it left unimpaired the “'separate but equal'” (347 U.S. 483, 74 S.Ct. 688) doctrine in a

40361 0—59—pt. 44-29

local transportation case and I perceive be permitted in public utilities holding no pronounced new doctrinal trend there- nonexclusive franchises. in.

If that doctrine has any vitality, this Of course I appreciate the care with is such a case in which it has been apwhich the Supreme Court limits its pro- plied fairly. According to its teaching nouncements upon great constitutional not absolute, but substantial equality is questions to the narrow issues before it required. Such equality is not a question and the only issue in Brown involved a of dogma, but one of fact. Under the uncollision between the Fourteenth Amend- disputed evidence adduced upon the hearment and state laws commanding segre- ing before us practices under the laws gation in the public schools. But in here attacked have resulted in providing Brown the Court's opinion referred to the races not only substantially equal Plessy v. Ferguson six times and to its but in truth identical facilities. “'separate but equal'” doctrine on four In my opinion the holding of the Court occasions. It epitomized its concept of in Morgan v. Virginia, 328 U.S. 373, 66 that doctrine as follows: "Under that S.Ct. 1050, 90 L.Ed. 1317, that the atdoctrine, equality of treatment is accord- tempt of a state to require the segregaed when the races are provided substan- tion of passengers on interstate buses tially equal facilities, even though these results in the imposition of an undue burfacilities be separate." Its ultimate con- den on interstate commerce is wholly irclusion was, and this I conceive to be the relevant to the issue before us. And rationale of its decision, “that in the field equally inapposite is reference to Henderof public education the doctrine of 'sep- son v. United States, 339 U.S. 816, 70 S. arate but equal' has no place. Separate Ct. 843, 844, 94 L.Ed. 1302 which held educational facilities are inherently un- that rules and practices of interstate railequal."

road carriers requiring the segregation It seems to me that the Supreme Court of passengers in dining cars were offentherein recognized that there still re- sive to Section 3(1) of the Interstate mains an area within our constitutional Commerce Act making it unlawful for a scheme of state and federal governments railroad in interstate commerce “ 'to subwherein that doctrine may be applied ject any particular person,

to even though its applications are always any undue or unreasonable prejudice or constitutionally suspect and for sixty disadvantage in any respect whatsoever: years it may have been more honored in the breach than in the observance. The supremacy of the federal governGranted that the trend of its opinions is ment in matters affecting interstate to the effect that segregation is not to be commerce is axiomatic. Cases involving permitted in public facilities furnished the exercise of its power in that realm by the state itself and the moneys of the shed no light on Fourteenth Amendment state, as in the case of public schools, or problems. It does seem quite clear that public parks, cf. Muir v. Louisville Park by its terms the Congress is given the Theatrical Association, 347 U.S. 971, 74 power and duty to enforce the Fourteenth S.Ct. 783, 98 L.Ed. 1112; Dawson v. Amendment by legislation. Thus the Mayor and City Council of Baltimore, Congress would have the power, thus de4 Cir., 220 F.2d 386, affirmed 350 U.S. rived, to proscribe segregation in intra877, 76 S.Ct. 133, or municipal golf state transportation. It is worthy of courses, cf. Rice v. Arnold, 340 U.S. 848, note that for sixty years it has not seen 71 S.Ct. 77, 95 L.Ed. 621; Holmes v. fit to do so. City of Atlanta, 350 U.S. 879, 76 S.Ct. While any student of history knows 141, on the plain theory that if the state that under our system of government is going to provide such facilities at all, vindication of the constitutional rights it must provide them equally to the citie of the individual is not, and ought not to zens, it does not follow that it may not be, entrusted to the Congress, its ret

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