Bailey v. Patterson Jurisdictional Statement
Public Court Documents
January 1, 1961
Cite this item
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Brief Collection, LDF Court Filings. Bailey v. Patterson Jurisdictional Statement, 1961. 1c3ed391-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7379d293-87b5-46f0-a03e-d0743ee1bf6a/bailey-v-patterson-jurisdictional-statement. Accessed November 23, 2025.
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(Emtrt of % Mnitxh £>tatT,0
Octobee Teem, 1961
No.............
Samuel Bailey, et al.,
— v.
Appellants,
J oe T. P atterson, et al.,
Appellees.
OH APPEAL FBOM T H E U N ITED STATES DISTBICT COURT POE T H E
SO U TH ERN DISTRICT OF M IS SIS SIPP I
JA CK SO N DIVISION
JURISDICTIONAL STATEMENT
Constance Baker Motley
J ack Greenberg
J ames M. Nabrit, I I I
Derrick A. Bell, J r.
10 Columbus Circle
New York 19, N. Y.
R. J ess Brown
1105% Washington Street
Vicksburg, Mississippi
Attorneys for Appellants
Michael Meltsner
Of Counsel
I N D E X
PAGE
Opinions Below ............................................................. 2
Jurisdiction ............................................... 2
Questions Presented ... .................................................. 5
Statutes Involved ..................... 6
Statement of Pacts ................. 7
The Questions Are Substantial
I. State Compelled Racial Segregation in the Use
of the Public Transportation Facilities of Com
mon Carriers Is Clearly Repugnant to the Con
stitution and Laws of the United States ........... 22
II. The Principles of Equitable Abstention Invoked
by the Court Below Were Inappropiiately Ap
plied in This Case ................................................ 25
III. Federal Judicial Power May Be Exercised to
Enjoin State Criminal Prosecutions During the
Pendency of a Federal Action on the Same
Subject Matter ............................. 26
IV. The District Court Abused Its Discretion.......... 30
Appendix
Opinion Below ....................................... la
Appendix to Opinion .......... .............................. . 17a
Statutes ............................................ .........17a, 21a
Dissenting Opinion .................................... ............. 32a
Judgment Below ................................................ ..— 64a
Order of December 2, 1961 ................. .................. 65a
Ordinance of the City of Jackson ........................ 67a
11
Table oe Cases
p a g e
Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958) ..... 22
Baldwin v. Morgan, 287 F. 2d 750 (5th Cir. 1961) ..... 22
Barrows v. Jackson, 346 U. S. 249 .............. 29
Boman v. Birmingham Transit Co., 280 F. 2d 531
(5th Cir. 1960) ........................................................... 22
Boynton v. Virginia, 364 U. S. 454 ................................ 22
Brown v. Board of Education of Topeka, 347 U. S. 483 22
Bryan v. Austin, 354 U. S. 933 ..................................... 3,4
Burns v. United States, 287 U. S. 216 ....... 30
Burton v. Wilmington Parking Authority, 365 U. S.
715 ............................................................................... 23
Coke v. Atlanta, 184 F. Supp. 579 (N. D. Ga. 1960) ..... 23
Douglas v. Jeanette, 319 U. S. 157 ...............................27, 28
Enelow v. New York Life Insurance Co., 293 U. S. 379 4
Ettleson v. Metropolitan Life Insurance Co., 317 U. S.
188 ............................... ............................................... 5
Evers v. Dwyer, 358 U. S. 202 ........................................ 28
Garner v. Louisiana, 30 U. S. L. Week 4070 .............. 23, 28
Gayle v. Browder, 352 U. S. 903 ............................ 22, 28, 29
Glen Oaks Utilities, Inc. v. City of Houston, 280 F. 2d
330 (5th Cir. 1960) ..................................................... 4
Gov’t & Civic Employees Organization Com. v. Wind
sor, 347 U. S. 901, aff’d 116 F. Supp. 354 (N. D. Ala.
1953) (Order reprinted at 146 F. Supp. 214) .......... 4
Harrison v. NAACP, 360 U. S. 167 ..................... ....... 26, 30
Henry v. Greenville Airport Commission, 284 F. 2d
631 (4th Cir. 1960) 23
Ill
PAGE
Lewis v. Greyhound Corp. (M. D. Ala., C. A. No. 1724-n,
November 1, 1961, not yet reported) ...... .................. 22
Monroe v. Pape, 365 U. S. 167................................... . 24
Morgan v. Virginia, 328 U. S. 373 ............................... 22
Morrison v. Davis, 252 F. 2d 102 (5th Cir. 1958) ...... 27
NAACP v. Bennett, 360 U. S. 471................................. 3, 4
NAACP v. Alabama, 357 U. S. 449 ............................ 29
Napue v. Illinois, 360 U. S. 264 ..... ............................. 24
In Re Sawyer, 124 U. S. 200 .................................... . 26
Pierce v. Society of Sisters, 268 U. S. 510 ................. 29
Thompson v. City of Louisville, 362 U. S. 199 ..........23, 28
Truax v. Raich, 239 U. S. 33, aff’g 219 Fed. 273 (D.
Ariz. 1915) ... ................................ ........................... 26,29
Union Tool Co. v. Wilson, 259 U. S. 107............................ 30
United States v. City of McComb (unreported, S. D.
Miss. C. A. No. 3215, November 21, 1961) .............. 22
United States v. John J. Fraiser, County Attorney
(unreported, N. D. Miss. C. A. No. G-C-27-61, No
vember 20, 1961) ....................................... .............. 23
Yick Wo v. Hopkins, 118 U. S. 356 .............................. 23
Ex Parte Young, 209 U. S. 123 ................................... 26
State Statutes
Section 2351 of the Mississippi Code (1942) ....1, 2, 5, 6, 7,19
Section 2351.5 ...... ...........................................1, 2, 5, 6, 8,19
Section 2351.7 ...... ............................................1, 2, 5, 6, 8,19
IV
PAGE
Section 7784 ...................................................1,2,5,6,9,19
Section 7785 ................ 1,2,5,6,9,19
Section 7786 .......... ........................................1,2,5,6,9,19
Section 7786-01 .................................................1, 2, 5, 6,10,19
Section 7787 ..................... ,.......... ,................. 1,2,5,6,10,19
Section 7787.5 ................................... ............ 1, 2, 5, 6,10,19
Section 2087.5 ..................................................... 2, 3, 5, 6,19
Section 2087.7 ..................................................... 2, 3, 5, 6,19
Section 2089.5 .......................................,..............2, 3, 5, 6,19
Section 4065.3 ....................................... ........................_ 7
Ordinance of the City of Jackson, Mississippi, Janu
ary 12, 1956 .................................................. 2,3,6,11,20
U nited States Statutes
28 U. S. C. §2281 ...
28 U. S. C. §2283 ...
28 U. S. C. §2284 ...
28 U. S. C. §1253 ...
42 U. S. C. §1983 ...
49 U. S. C. §3(1) ...
49 U. S. C. §316(d)
... 2
.21, 27
. . . 2
... 3
... 27
. . . 6
... 6
Code oe F edekal Regulations
49 C. F. R., Part 180, Sections 180(a)(1) et seq. 23
I n t h e
Ikipnmtp ( ta r t of % Staten
No.............
October T erm, 1961
Samuel Bailey, et al.,
Appellants,—v.—
J oe T. P atterson, et al.,
Appellees.
on appeal from the united states district court foe the
SO U TH ERN DISTRICT OF M ISSISSIPPI
JA CKSO N DIVISION
---------------------- ---------------- —---------
JURISDICTIONAL STATEMENT
Appellants appeal from the judgment of the United
States District Court for the Southern District of Mis
sissippi, Jackson Division, entered on November 17, 1961,
which denied appellants’ application for preliminary in
junctions against the Attorney General of the State of
Mississippi, the City of Jackson, Mississippi, the Mayor,
Commissioners and Chief of Police of the City of Jackson,
the Jackson Municipal Airport Authority, the operator of
a restaurant under a lease from the Jackson Municipal
Airport Authority, and several common carriers, namely,
Continental Southern Lines, Inc., Southern Greyhound
Lines a division of the Greyhound Corporation, Illinois
Central Railroad, Inc., and Jackson City Lines, Inc. Ap
pellants sought injunctive relief to restrain appellees from
continuing to enforce racial segregation on transportation
facilities pursuant to Sections 2351, 2351.5, 2351.7, 7784,
7785, 7786, 7786-01, 7787 and 7787.5 of the Code of Mis-
2
sissippi of 1942. Appellants also sought to restrain ap
pellee law enforcement officials from continuing to enforce
such segregation by enforcing an ordinance of the City of
Jackson adopted January 12, 1956 and by acting under
color of Sections 2087.5, 2087.7 and 2089.5 of the Missis
sippi Code of 1942. Appellants submit this statement to
show that the Supreme Court of the United States has
jurisdiction of this appeal and that substantial questions
are presented.
Opinions Below
The majority opinion of Judges Mize and Clayton and
the dissenting opinion of Judge Rives are not yet re
ported and are reprinted in the Appendix hereto at pages
la, 32a, infra.
Jurisdiction
This suit was brought in the United States District
Court for the Southern District of Mississippi, Jackson
Division, under 28 U. S. C. Sections 2281, 2284 to secure
preliminary and final injunctions against the Attorney Gen
eral of the State of Mississippi, the City of Jackson, Mis
sissippi, the Mayor, Commissioners and Chief of Police
of the City of Jackson, the Jackson Municipal Airport Au
thority, the operator of a restaurant under a lease from
the Jackson Municipal Airport Authority, and several com
mon carriers, namely, Continental Southern Lines, Inc.,
Southern Greyhound Lines a division of the Greyhound
Corporation, Illinois Central Railroad, Inc., and Jackson
City Lines, Inc. Appellants sought injunctive relief to
restrain the appellees from continuing to enforce racial
segregation pursuant to Sections 2351, 2351.5, 2351.7, 7784,
7785, 7786, 7786-01, 7787 and 7787.5 of the Code of Mis
sissippi of 1942. Appellants also sought to restrain ap-
3
pellee law enforcement officials from continuing to enforce
racial segregation by enforcing an ordinance of the City
of Jackson adopted January 12, 1956 and acting under
color of Sections 2087.5, 2087.7 and 2089.5 of the Missis
sippi Code of 1942. The order of the District Court was
entered on November 17, 1961 and Notice of Appeal was
filed in that court on November 21, 1961. On December 5,
1961, appellants presented to this Court an application for
a stay injunction pending appeal. On December 18, 1961,
this application was denied.
The jurisdiction of the Supreme Court to review this
decision by direct appeal is conferred by 28 IT . S. C. Sec
tion 1253 which provides:
“Except as otherwise provided by law, any party
may appeal to the Supreme Court from an order
granting or denying, after notice and hearing, an in
terlocutory or permanent injunction in any civil action,
suit or proceeding required by any Act of Congress
to be heard and determined by a district court of three
judges.”
The following decisions sustain the jurisdiction of the
Supreme Court to review the judgment on direct appeal
in this case: Bryan v. Austin, 354 U. S. 933. There this
Court took jurisdiction of and vacated a similar order;1
likewise, in NAACP v. Bennett, 360 U. S. 471, this Court
1 The Order in the Bryan ease, which is on file in this Court,
No. 931, October Term, 1956, provided:
“ . . . it is ordered that the case be retained and remain pending
upon the docket hut that proceedings therein be stayed to per
mit the plaintiffs a reasonable time for the exhaustion of state
administrative and judicial remedies, after which such further
proceedings, if any, will be had by this court as may then
appear proper in the premises.” (Jurisdictional Statement,
page 43a.) There was no statement that the injunction was
“denied.”
4
vacated a similar order, and remanded the case to the trial
court.2
There appears to be no question but that stay orders
issued by three judge district courts applying the absten
tion doctrine in cases where injunctive relief has been
sought are directly appealable to this Court.3 Cf. Gov’t &
Civic Employees Organization Com. v. Windsor, 347 U. S.
901, aff’d 116 F. Supp. 354 (N. D. Ala. 1953) (Order re
printed at 146 F. Supp. 214, 215).
While the order in Windsor, supra, which was affirmed
here, did recite that “the final relief for which plaintiffs
prayed in their complaint is hereby denied,” before reciting
that jurisdiction was retained pending state court con
struction of the statute, it is obvious that the actual legal
operation and effect of that order was the same as the
effect of the abstention orders in the Bryan case, supra,
the Bennett case, supra, and in the instant case, none of
which contained the words injunction “denied”. See also
Glen Oaks Utilities Inc. v. The City of Houston, 280 F. 2d
2 The Order in the Bennett case is on file in this Court as No. 757,
October Term 1958, and it provided:
“On this day, pursuant to the opinion of the Court rendered by
Judge Sanborn, it is O r d e r e d , That the motion for a stay of
proceedings filed herein by the defendant, Bruce Bennett,
Attorney General of the State of Arkansas, and joined in by
certain other defendants, be, and the same is, granted, and
that this Court will retain jurisdiction of this cause until
efforts to obtain an appropriate adjudication in the state courts
have been exhausted.”
3 The only stay orders issued by three-judge courts which might
not be appealable are those issued pursuant to Title 28, §2284
requiring a stay in those instances where the state courts have
stayed enforcement of statutes attacked as unconstitutional pend
ing a state court test, and perhaps also stay orders which are merely
a procedural step (for example a short continuance) in the exer
cise of the inherent power of a court to control the progress of a
cause. Cf. Enelow v. New York Life Insurance Co., 293 TJ. S. 379,
382.
5
330, 333 (5th Cir. 1960); Ettelson v. Metropolitan Life Ins.
Co., 317 U. S. 188, 192.
Questions Presented
The following questions are presented by this appeal:
1. Whether the court belowq in an action to enjoin en
forcement of Mississippi statutes and an ordinance of the
City of Jackson, requiring racial segregation on common
carriers and in common carrier waiting room and rest
room facilities as contrary to the Fourteenth Amendment
to the United States Constitution, erred in refusing to
issue a preliminary injunction.4
2. Whether the court below erred in refusing to enjoin
the restaurant-lessee in the Jackson Municipal Airport
from refusing to serve and from segregating Negroes as
contrary to the Fourteenth Amendment!
3. Whether the court below erred in refusing to enjoin
the Jackson Mississippi Airport Authority, Inc., from con
tinuing to enforce, as contrary to the Fourteenth Amend
ment a policy, practice, custom, and usage of segregation,
including but not limited to the airport restaurant, rest
rooms, and drinking fountains!
4. Whether the court below erred in refusing to enjoin,
as contrary to the Fourteenth Amendment all prosecutions
begun in the courts of Mississippi after the filing of the
original complaint in this action of persons arrested and
charged with violation of Sections 2087.5, 2087.7 and 2089.5
4 Mississippi Code (1942) Title 11, §§2351, 2351.5 and 2351.7,
and Title 28, §§7784, 7785, 7786, 7786-01, 7787 and 7787.5, ap
pended hereto at pages 21a et seq., infra.
6
of the Mississippi Code (1942) and all future arrests for
purportedly violating the state’s breach of the peace and
disorderly conduct statutes of persons peacefully using
transportation facilities in violation of Jackson and Mis
sissippi segregation requirements?5
5. Whether the court below erred in refusing to enjoin
appellee public officials from, contrary to the Fourteenth
Amendment, posting signs, designating facilities for colored
passengers exclusively and facilities for white passengers
exclusively, on doors, walls, sidewalks, and other places
connected with stations, terminals, depots, and other pas
senger facilities and services?
6. Whether appellants herein also have been denied
rights secured by the Commerce Clause, Article 1, Section
8, Clause 3 of the United States Constitution and by the
Interstate Commerce Act, Title 49 United States Code,
Section 3(1) and 316(d).
7. Whether the court below erred in applying the doc
trine of equitable abstention to the facts of this case?
Statutes Involved
Sections 2087.5, 2087.7, 2089.5, 2351, 2351.5, 2351.7, 7784,
7785, 7786, 7786-01, 7787, 7787.5 of the Code of Mississippi,
1942, reprinted herein at pages 21a et seq., infra. An
ordinance of the City of Jackson, adopted January 12,
1956 and recorded in Minute Book “FF,” page 149, is
reprinted at page 67a, infra.
5 Mississippi Code (1942) Title 11, §§2087.5, 2087.7 and 2089.5
appended hereto at pages 17a et seq., infra.
7
Statement o f Facts
M ethods by which M ississipp i and the C ity o f Jackson
en force segregation in tran sporta tion
Mississippi has required and enforced racial segregation
in intrastate and interstate transportation and related
terminal facilities by a diversified arsenal of weapons. The
overriding state policy is expressed in 17 Miss. Code Ann.,
Section 4065.3:
The entire executive branch of the government of
the State of Mississippi, and of its subdivisions, and
all persons responsible thereto, including the governor
. . . mayor . . . chiefs of police, policemen . . . be and
they and each of them, in their official capacity are
hereby required, and they and each of them shall give
full force and effect in the performance of their offi
cial and political duties, to the Eesolntion of Interposi
tion . . . and are further directed and required to pro
hibit, by any lawful, peaceful and constitutional means,
the implementation of or the compliance with the In
tegration Decisions of the United States Supreme Court
of May 17, 1954 . . . and to prohibit by any lawful,
peaceful, and constitutional means, the causing of a
mixing or integration of the white and Negro races in
public schools, public parks, public waiting rooms,
public places .of amusement, recreation or assembly in
this state, by any branch of the federal government . . .
More specific Mississippi statutes exclusively govern
transportation. Section 2351, Miss. Code (Segregation on
railroads):
If any person or corporation operating a railroad
shall fail to . . . secure separate accommodations for
8
the white and colored races, as provided by law, or if
any railroad passenger conductor shall fail to assign
each passenger to the car or compartment of the car
used for the race to which the passenger belongs he or
it shall be guilty of a misdemeanor . . .
Section 2351.5 (Segregation in rail and bus terminals):
Every railroad company, bus company or other com
mon carrier for hire owning, maintaining or operating
a passenger depot. . . shall cause to be constructed and
maintained . . . two . . . rest rooms . . . : “Rest Room
white female only in Intrastate Travel” and likewise
two . . . rest rooms . . . for colored passengers . . .
Section 2351.7 (Segregation of intrastate passengers in
rail, bus, air terminals):
1. Any person traveling in intrastate travel by rail,
bus, airline or other common carrier for hire who
knowingly or wilfully enters or attempts to enter the
waiting room not marked and provided for persons
other than his or her race as required by law shall be
guilty of a misdemeanor . . .
2. No white person shall enter, frequent, occupy or
use the colored waiting rooms of any depot, bus sta
tion or terminal when such waiting room is marked
in bold letters as required by law and no colored per
son shall enter, frequent, occupy or use the white wait
ing room of any depot, bus station or terminal when
same is marked in bold letters as required by law . . .
3. No action . . . may be brought in any court of this
state against any law enforcement officer for damages
for false arrest of any passenger because of a viola
tion of this act. . . .
9
Section 7784 (Segregation on railroads):
Every railroad carrying passengers in this state
shall provide equal but separate accommodations for
the white and colored races by providing two or more
passenger cars for each passenger train, or by dividing
the passenger cars by a partition to secure separate
accommodations. . . .
Section 7785 (Segregation on railroads, buses, movable
signs):
All persons or corporations operating street rail
ways and street or municipal buses . . . shall provide
equal but separate accommodations for the white and
colored races.
Every common carrier by motor vehicle of pas
sengers in this state . . . shall divide its passengers
by the use of an appropriate sign 4 x 9 inches, for the
purpose of, and in a manner that will suitably provide
for a separation of the races, and all other buses and
motor vehicles carrying passengers for hire in the
State of Mississippi shall use a latticed movable parti
tion extended from the top of the seat to the ceiling
of the vehicle, said partition not to obstruct the view
of the driver of the vehicle to secure such separate
accommodations . . . the only remedy said passengers
shall have for failure or refusal to carry them under
such circumstances is the right to a refund of the cost
of his ticket. . . .
Section 7786 (Operators empowered to assign seats):
The operators of such street cars and street buses
and motor vehicles . . . shall have power and are re
quired to assign each passenger to the space or com
partment used for the race to which such passenger
belongs.
10
Any passenger undertaking or attempting to go into
the space or compartment to which by race he or she
does not belong, shall be guilty of a misdemeanor . . .
Section 7786.01 (Penalties):
Every person or corporation operating street rail
ways and street or municipal buses . . . guilty of wilful
and continued failure to observe or comply with the
provisions of this act shall be liable to a fine of twenty-
five dollars ($25.00) for each offense. . . .
Section 7787 (Penalties):
All officers and directors of street railway companies
who shall refuse or neglect to comply . . . shall be
deemed guilty of a misdemeanor . . .
Section 7787.5 (Segregated depots, signs):
. . . in such depots . . . there shall be constructed . . .
for the white intrastate passengers a separate waiting
or reception room, on each entrance to which shall be
painted or shown in bold letters the following: “White
Waiting Room, Intrastate Passengers” ; and in such
depot, bus station or terminal there shall be con
structed, provided and maintained a separate waiting
or reception room for the colored intrastate passen
gers, on each entrance to which shall be painted or
shown in bold letters the following: “Colored Waiting
Room Intrastate Passengers.”
2. Any common carrier of passengers . .. which fails
or refuses to comply .. . shall be liable in the penal sum
of $1,000.00 (one thousand dollars) per day for each
day of such failure. . . .
11
in addition to the state statutes, tlie City of Jackson
also has enacted an ordinance requiring segregation in car
rier terminals. The Jackson ordinance (Plaintiffs’ Exhibit
No. 31, R. 430) is based upon the state transportation segre
gation statute of 1956 (R. 445) and requires:
All common carriers of persons which have hereto
fore provided and maintained separate waiting rooms
. . . are hereby required to continue to maintain similar
but separate waiting rooms . . .
It shall be unlawful for any person of the white race
to use . . . accommodations . . . provided for . . . per
sons of the colored races only.
It shall be unlawful for any person of the colored
races to use . . . accommodations provided for . . . the
white race only.
The policy of the City of Jackson is, in the words of the
Mayor (R. 441), one of segregation, but not described as
such: “to bring happiness and peace and prosperity to
everyone within our city. That has been done by a separa
tion of the races, not segregation. We never refer to it as
segregation.” The city ordinance, he explained, “was pat
terned in 1956” on the state law (R. 442). The ordinance
and the statute reflect the City of Jackson’s policy (R. 442,
443, 444).
The Attorney General of Mississippi testified that “if
conditions arise to such a point that I thought it was neces
sary to bring them [the state segregation laws] into effect.
. . . ” he would enforce them (R. 515; and see R. 522-523),
but “I have not prosecuted anybody under those statutes;
I haven’t threatened to prosecute anybody” (R. 505-506).
He has never announced or written an opinion recognizing
the unconstitutionality of the segregation laws (R, 527-528).
Other means are employed, however, to perpetuate segrega-
12
tion. For, as the Mayor of Jackson testified “there can be
ordinances and there can be laws, but actual operation, ac
tual interpretation and the actual performance under those
laws are the controlling thing” (E. 444). “Since I have been
Mayor I do not recall one incident where there has been
an arrest under this ordinance or any segregation ordi
nance” (E. 442).
State and municipal segregation policy have been im
plemented in these ways: Police department orders mani
fested in signs—“WAITING- EOOM FOE WHITE ONLY;
WAITING EOOM FOE COLOBED ONLY; BY OEDEE
OF THE POLICE DEPAETMENT”—posted on the side
walks outside terminals by the police direct passengers to
waiting room facilities for their respective races (E. 218
(railroad station), E. 259 (Greyhound), E. 277 (Trail-
ways)). The interstate carriers admittedly operate under
state and local segregation law in their terminals and, in
addition to Police Department signs, have signs of their
own stating “White Waiting Boom—Intrastate Passen
gers” and “Colored Waiting Boom—Intrastate Passengers”
(E. 186 (railroad station), E. 258, 267-268 (Greyhound),
E. 276-278 (Trailways); with respect to the airport see
E. 206-207; 309-310).
Aboard the local buses movable signs, four by nine inches,
are suspended from the top as on a curtain traverse rod
(E. 606) as required by statute. The drivers have been
instructed that if they pick up more Negroes than whites
they should move the sign towards the front; if more whites
than Negroes, to the rear (E. 605). Should a Negro sit
out of place the driver is directed to stop the bus (E. 300).
Otherwise he would face arrest (E. 616; and see E. 267,
287, 298).
The carriers have been obedient to the statutes, ordi
nances, and municipal and state policy under apprehension
13
that they will be enforced. One local Greyhound official
wrote to the President of the Greyhound Corporation:
“As you know the City placed a sign at the front of
our Terminal designating the white waiting room,
which was also done at Trailway and Railroad Stations
at the same time and if the occasion should occur where
the police does order the passengers that certain wait
ing room and they refuse I am sure they would be
arrested as it happened several months ago at the Rail
road Station.
“As you know Mississippi has a law which requires
us to place signs over our waiting rooms designating
white and colored waiting rooms which we of course
have at all our stations in Mississippi and I feel that
the N.A.A.C.P. is hitting at these signs which read
‘WHITE OR COLORED WAITING ROOMS INTRA
STATE PASSENGERS’.
“Since I have been in Jackson Mississippi which has
been ten years we have never had any trouble with
the local police treating our colored passengers rough,
in fact it is very seldom that we see a police in the
Terminal during the day but they do drop around at
night on their regular rounds but bother no one unless
they are out of line.
“I will say this, if the N.A.A.C.P. does start using
the waiting rooms at any Terminal in Jackson Missis
sippi there will be plenty of trouble, because the police
department has the backing of the City Officials and
it appears they will go all the way to keep the races
segregated in Mississippi.” (Emphasis supplied.) (R.
204; Plaintiffs’ Exhibit No. 6).
If, however, the statutes were to be declared unconstitu
tional and their enforcement enjoined, the carriers aver
that they would cease segregating (R. 677, 690, 697).
14
But, while the carriers and police enforce state law and
policy, and while some Negroes who have made an effort
to enjoy their right to non-segregated travel facilities have
been subjected to physical violence under color of law and
by private citizens (R. 316, 378), the principal mode for
effecting state and municipal policy has been to arrest
persons asserting these rights and to prosecute them for
breach of the peace. Such arrests and prosecutions ante
dated the “Freedom Rides” and took place on local buses
as well as with respect to interstate facilities after the
“Freedom Rides,” as appears infra.
Breach of the peace arrests have been effected pursuant
to a policy worked out between the Attorney General of
Mississippi and local law enforcement officers. The At
torney General testified:
“Q. Did you discuss with the Chief of Police what
steps he was going to take to preserve law and order?
A. Yes, we discussed plans.
Q. What were those plans? A. The plan was to
do exactly what they did, first of all to keep down
riot and disorder, and these arrests necessarily fol
lowed. They could have been easily avoided had your
clients only wanted them avoided . . .” (R. 521).
The breach of the peace arrests were effected even though
the only breach that occurred was in Mississippi’s policy
of segregation in travel. In connection with such arrests
on a local Jackson bus a driver testified:
“Q. Were there any white persons on the bus? A.
Yes.
Q. At the time these four Negroes were on the bus?
A. Yes.
Q. Was there any disturbance on the bus? A. Not
a bit.
15
Q. Was there any disturbance outside the bus? A.
No, not any” (R. 610).
In connection with the arrests in the various interstate
terminals a police officer testified:
“Q. What were the Negroes doing that you arrested
in there ? . . . A. They came in the terminal.
Q. What did they do? A. They came in and some
of them had seats and some of them stood.
Q. What else did they do? A. That is about, all.
Q. Were they armed? A. I never found any of
them armed.
Q. Were they loud? A. No.
Q. Did they use any curse words? A. No.
Q. Did they strike anybody? A. No.
Q. Did they threaten anybody? A. No.
Q. Did you arrest them? A. I sure did.
Q. For what? A. Because their presence provoked
people and caused them to become disturbed, and I
felt it best to maintain law and order and to order
them to leave there. When they refused to obey my
order, they were arrested.
Q. Would you explain what you mean by ‘their
presence there provoked people’? A. Well, as I stated
earlier, we had advance notice that they were coming
to Jackson to create an incident similar to what had
happened in other cities, and my duty there was to
maintain law and order, and I felt it best to get the
root of the trouble out of there, and that is when I
ordered them to leave.
Q. What did they do in violation of law and order?
A. When I ordered them to leave, they just stood
there, as though they hadn’t heard me say a word.
I repeated that order several times, and they refused
to obey, and that is when I arrested them” (R. 532-
534).
16
P arties
Defendants. The defendants are the City of Jackson
(which requires segregation in travel and terminal facili
ties through its ordinances and by its police department
orders and whose law enforcement officers, chief of whom
is its Mayor (R. 431-432) are empowered to enforce the
state segregation laws and the state breach of the peace
statutes which, on this record, systematically are the means
by which segregation is effectuated in Jackson), the Mayor
of the City of Jackson and two of its Commissioners; the
Jackson Municipal Airport Authority (R. 329), which is
within the city limits of Jackson (R. 334), and the restau
rant of which is leased on a month to month basis—which
extends a prior lease—to the defendant restaurant oper
ator, Cicero Carr (R, 370, 372; Plaintiff’s Exhibit 29);
Jackson City Lines, a Mississippi corporation which oper
ates local buses under franchise granted by the City of
Jackson (R. 451); the Illinois Central Railroad, Conti
nental Southern Lines (Trailways), the G-reyhound Cor
poration, all of which maintain terminals in the City of
Jackson for the serving of interstate and intrastate pas
sengers who use their respective trains and buses; and the
Attorney General of Mississippi. The United States was
represented as amicus curiae.
Plaintiffs. The named plaintiffs are residents of Mis
sissippi and Negroes who have used the various travel
facilities involved. Plaintiff Broadwater has used the Jack-
son City Lines, Illinois Central Railroad, Greyhound Buses,
Continental Trailways Buses, and the Jackson Municipal
Airport (R. 181, 206). He has been segregated in the use
of these various carriers and their terminals (R. 185-189,
192-194, 195, 206, 207, 208-210) but made no effort to vio
late the segregation statutes, ordinance, or police depart-
17
ment orders before bringing this suit and was never
arrested or prosecuted (R. 215).
Plaintiff Broadwater as early as 1957 wrote to the car
riers, complaining of their segregation policy, but to no
avail (Plaintiffs’ Exhibits Nos. 1, 2, 3, 4, 5, 6, 7, 8). Indeed,
his complaint provoked Plaintiffs’ Exhibit No. 6, quoted
in part, supra (p. 13).
Plaintiff Jacob has used the Greyhound Buses, Illinois
Central Railroad, Trailways Buses, and the Jackson City
Lines. He has been directed by appropriate signs posted
by the carriers and by the order of the police department
to confine himself to the use of facilities for Negroes only
(R. 220-225). Like plaintiff Broadwater, he has tested the
validity of segregation only by this suit and has not sub
mitted to arrest and prosecution (R. 226). Should this
suit, however, eventuate in a judgment according him the
right to employ nonsegregated travel accommodations, he
will exercise the right (R. 230).
Plaintiff Bailey also has traveled Trailways Buses, Illi
nois Central Railroad, Greyhound Buses, and the Jackson
City Lines, and he too has been directed by the signs
posted by the carriers as well as those posted by the police.
So far as arrest and conviction for violating segregation
law is concerned, his situation is the same as that of the
other named plaintiffs (R. 230-237).
Numerous witnesses, members of the class (see Rule 23
(a)(3) Federal Rules Civil Procedure), on whose behalf
this action is prosecuted, testified concerning the means
by which racial segregation has been imposed upon them
and others in the use of the various travel facilities which
are the subject of this suit. Witness Evers testified that
he uses the airport fifteen to twenty times a year and that
segregation was imposed upon him by means of various
18
signs in the restrooms, at the fountains, and at the restau
rant (R. 312-315), that on a Trailways Bus when he did
not move from a front seat the bus was stopped, the police
were summoned and later he was physically assaulted by
a private citizen (R. 316); that he had witnessed other
Negroes board the bus and that they were ordered to the
back (E. 324).
Witness Grayson testified that on April 19, 1961, she was
arrested for breach of the peace for sitting on the front
seat on a Jackson City bus (E. 342, 347, 353).
Witness Armstrong testified that on June 23, 1961, he
was arrested for entering the white intrastate passenger
waiting room of the Trailways Bus Company. He was
convicted of breach of the peace, although there was neither
fighting, loud talk, cursing or any other disturbance in
volved (E. 353, 358-361, 364, 367).
Witness Frazier testified that he was ordered by the
driver to the rear of a Trailways bus in Columbus, Mis
sissippi but declined to move (E. 376), and in Winona,
Mississippi was beaten to unconsciousness by the sheriff
and his deputies (R. 378) who told him that he had no
business sitting in the front of the bus (E. 379). Frazier
was charged with disturbing the peace (E. 381-383).
Witness O’Neal testified that while she was riding a
Greyhound bus between Jackson and Clarksdale, Labor
Day 1961, she was asked by the driver to move to the
Negro section and a police officer removed her and took
her to the police station where she was kept four hours,
then released (R. 397-398,402-403).
Witness Jones testified that in riding the Illinois Central
from Clarksdale to Memphis, August 23, 1961, she was ar
rested for using the white waiting room (E. 410-415).
19
Other witnesses testified similarly to the enforcement of
segregation on carriers and in terminals (R. 418, 423).
Plaintiffs introduced into evidence Exhibits Nos. 32, 33,
34, and 35, four volumes of approximately 190 affidavits
and judgments of breach of the peace convictions of other
members of the class on whose behalf this suit seeks relief,
persons arrested in waiting rooms of defendant carriers
(R. 569). These warrants are of arrests described in the
testimony of Captain of Police J. L. Ray, who discussed
them in response to the following question: “I would like
to . . . ask you if in the last six months you have arrested
any Negroes in that waiting room?” (R. 532 and see 536,
541-542, 544). He described the arrestees conduct as en
tirely peaceable. See extract from his testimony, supra,
p. 15.
The named plaintiffs and various witness members of
the class were aware of the policy of the State and
municipality to arrest and prosecute for breach of the
peace persons who violate segregation statutes, ordinances,
and customs. Plaintiff Bailey personally witnessed a co
worker arrested for sitting in the white section of a bus
(R. 250 and see R. 346). Others, as described, supra, were
themselves arrested.
T he class on behalf o f w h om this su it seeks re lief
The original complaint filed on June 9, 1961, prayed
for preliminary and permanent injunctions enjoining de
fendants from:
a) continuing to enforce certain statutes of the State
of Mississippi requiring racial segregation on common car
riers, in waiting rooms used by common carriers, and rest
room facilities maintained by common carriers, i.e., Title
11, Sections 2351, 2351.5 and 2351.7, and title 28, 7784,
7785, 7786, 7786-01, 7787, 7787.5, Mississippi Code An-
20
notated (1952) and any other statute of the State of Mis
sissippi requiring or permitting such segregation.
b) continuing to enforce ordinances of the City of Jack-
son, Mississippi, requiring racial segregation in waiting
rooms and rest room facilites owned and/or maintained
and utilized by common carriers.
c) continuing to enforce a policy, practice, custom, regu
lation or usage, under color of state law of city ordinance,
of segregating Negro and white passengers on common
carriers and in the facilities and services of the depots,
stations, terminals, owned and/or utilized by carriers in
connection with their businesses of transporting inter
state and intrastate passengers for hire.
d) continuing to enforce a policy, practice, custom and
usage of segregation in the facilities and services of the
Jackson Municipal Airport including but not limited to the
airport restaurant owned and operated by the City of
Jackson or owned and leased by the City of Jackson to
a private individual for the benefit of airline passengers
and the general public.
e) continuing to arrest, harass, intimidate, threaten or
coerce the plaintiffs and members of their class in connec
tion with the exercise of their federally protected right
to use interstate and intrastate transportation facilities
and services without segregation or discrimination against
them solely because of race and color.
The amended complaint contained a similar prayer with
an additional paragraph “f” :
f) continuing to post, or permit to be posted, signs
designating facilities set aside for colored and white pas
sengers on the doors, walls, sidewalks or other places con
nected with or in the terminals, depots, stations, rest rooms,
21
waiting rooms, lunch rooms or any other passenger facility
or service.
Thus the original and amended complaints were broad
enough to cover all of the methods employed by the state
and city to enforce segregation—all of which methods
threaten the named plaintiffs. At the hearing, however,
with respect to enjoining state court prosecutions, plaintiffs
pressed only for an injunction against the proceedings
commenced subsequent to the time federal jurisdiction at
tached in this suit (under the exception contained in 28
U.S.C., §2283)6 which was on June 9, the date of the filing
of the complaint. The class, therefore, consists of persons7
threatened by the segregation statutes or ordinances and
practices (including arrest and prosecution for breach of
the peace) of the State and the City of Jackson and who
have been subjected to segregation by the carriers and
their terminals. The named plaintiffs fall in all of these
categories.
They have been and are continuously threatened by all
the techniques of imposing segregation employed by the
City of Jackson and State of Mississippi in all of the
travel facilities and terminals involved in this case. While
they have not themselves been arrested and prosecuted
the threat against them is immediate. Indeed, as of the
filing of this suit, those persons arrested and prosecuted
after June 9, had—like the named plaintiffs—themselves
not been arrested and prosecuted.
6 Section 2283 states that “a court of the United States may
not grant an injunction to stay proceedings in a state court,” ex
cept “where necessary in aid of its jurisdiction, or to protect or
effectuate its judgment.”
7 The original complaint sought relief only on behalf of
“Negroes” who were being segregated. The evidence demonstrated,
however, that segregation was being enforced against white per
sons, especially those associated with Negroes (R. 318).
If the status (as a threatened but not arrested person)
of any of the members of the class has been changed, it
has been changed by the appellees state and city in the
course of making arrests and pressing prosecutions after
June 9, which impinge on the subject matter of this suit
over which a federal court already had taken jurisdiction.
THE QUESTIONS ARE SUBSTANTIAL
I. State Compelled Racial Segregation in the Use o f
the Public Transportation Facilities o f Common
Carriers Is Clearly Repugnant to the Constitution
and Laws o f the United States.
The racial segregation laws of the State of Mississippi
which have been attacked as unconstitutional and which are
set forth in Appendix II to the opinion of the majority
below, page 21a, infra, are clearly invalid under applicable
federal constitutional and statutory law. The invalidity of
state laws requiring racial segregation in interstate and
intrastate commerce is so clearly established by prior deci
sions of this Court as not to present any real issue. Gayle
v. Browder, 352 U. S. 903, affirming 142 F. Supp. 707 (M. D.
Ala. 1956); Brown v. Board of Education, 347 U. S. 483;
Morgan v. Virginia, 328 U. S. 373; Boynton v. Virginia, 364
U. S. 454; Baldivin v. Morgan, 251 F. 2d 780 (5th Cir. 1958)
and 287 F. 2d 750 (5th Cir. 1961); Boman v. Birmingham
Transit Co., 280 F. 2d 531 (5th Cir. 1960); Lewis v. Grey
hound Corp. (M. D. Ala. C. A. No. 1724-N, November 1,
1961, not yet reported). Indeed, Mississippi’s segregation
statutes were recently declared invalid in relation to an
interstate carrier’s facilities in McComb, Mississippi,
United States v. City of McComb (unreported, S. D. Miss.
C. A. No. 3215, November 21, 1961) (Circuit Judges Tutle
and Rives wrote the majority opinion; District Judge Mize
23
dissented). There is a similar recent decision affecting
Greenville, Mississippi: United States v. John J. Fraiser,
County Attorney (unreported, N. D. Miss. C. A. No. G-C-
27-61, November 20, 1961) (Circuit Judges Tutle and Eives
were in the majority; District Judge Clayton dissented).
The last mentioned cases are actions brought by the United
States to implement a recent order of the Interstate Com
merce Commission relating to segregation in motor carrier
facilities. I. C. C. Docket No. MC-C-3358, decided Septem
ber 22, 1961; see Regulations adopted in 49 C. F. R., Part
180, Sections 180(a)(1), et seq.
Racial segregation by the Jackson Municipal Airport
Authority and its restaurant-lessee is clearly unconstitu
tional “state action”. Burton v. Wilmington Parking Au
thority, 365 U. S. 715; Henry v. Greenville Airport Commis
sion, 284 F. 2d 631 (4th Cir. 1960); Coke v. Atlcmta, 184 F.
Supp. 579 (D. C. N. D. Ga.).
Enforcement of segregation by means of arrests and
prosecutions for breach of the peace where the only breach
is of segregation law or custom and defendants’ only wrong
was “their presence” (R. 534), has been held a violation
of the Fourteenth Amendment by this Court in Gamer v.
Louisiana,----- U. S .------ , 30 U. S. L. Week 4070, Dec. 11,
1961, and see Thompson v. City of Louisville, 362 U. S. 199.
The actions of the appellee law enforcement officials in
enforcing segregation in public transportation facilities
are equally in violation of the Constitution and laws of the
United States. State officers can no more enforce racial
discrimination through their administration of laws, which
do not require such discrimination, than they can do so in
obedience to a legislative mandate to discriminate. Yick Wo
v. Hopkins, 118 U. S. 356.
It is settled that police officers acting to deny equal pro
tection of the laws, with or without the approval of state
24
law, violate the Fourteenth Amendment. Monroe v. Pap-e,
365 U. S. 167. Public prosecutors are likewise subject to the
inhibitions of the Fourteenth Amendment in their actions
in conducting criminal cases. Napue v. Illinois, 360 U. S.
264.
Appellants seek to enjoin the continuation of the scheme
or program of the appellee officers of the City of Jackson
to enforce segregation by making arrests and conducting
a series of vexatious multiple criminal prosecutions of per
sons who refuse to submit to their segregation require
ments. This scheme and plan is an obvious violation of the
Fourteenth Amendment and federal statutory rights of
appellants and the members of the class they represent,
and should have been enjoined for the reasons stated in the
dissenting opinion of Judge Rives.
It should be reemphasized, particularly in the light of
the majority’s disposition of the case below, that there is
no claim by appellants here that either of the disorderly
conduct and breach of the peace laws, under which the
prosecutions of persons who have refused to obey the segre
gation orders are brought, is unconstitutional on its face.
Neither is there any request for, or issue necessitating, a
construction of these laws. For the purposes of appellants’
claim here there is no need even to determine whether, as
a matter of state law, the disorderly conduct laws are appli
cable to the conduct of the persons arrested and prosecuted
by the appellees. No matter how this question is ultimately
decided, the members of appellants’ class charged and
prosecuted in furtherance of appellees’ plan of arrest and
prosecution will have been denied constitutional rights by
having been subjected to the vexatious and unwarranted
arrests and prosecutions. The evil which appellants seek
to enjoin is the systematic use of the processes of the crim
inal law to arrest and prosecute every person who violates
25
appellees’ segregation orders. Even if the persons arrested
and prosecuted by appellees are eventually vindicated in
the state courts (or in this Court on review of the criminal
prosecutions), they will have been already subjected to the
discriminatory scheme of penalizing persons who refuse
to obey the segregation orders.
II. The Principles o f E quitab le A bstention Invoked
by the C ourt Below W ere In ap p ro p ria te ly A pplied
in This Case.
Appellants submit that the reliance by the court below
upon principles of equitable abstention pending adjudica
tion of the issues presented in this case by state courts,
was not required or authorized by the applicable precedents.
In brief, appellants submit that since there is no claim of
the invalidity of the disorderly conduct laws involved here,
and no necessity for their construction, the principle of
abstention is inapplicable. This case involves no “prelimi
nary guess” as to the meaning of the disorderly conduct
laws, but rather, a claim that state officials are arresting
people and prosecuting them to enforce segregation. Wheth
er the disorderly conduct law does or does not authorize
this conduct of the state officials is not decisive of the claim
for relief from segregation enforced by the harassment
program of appellees. This conduct is proscribed by the
Constitution in either event. With regard to the state’s
segregation laws, the equitable abstention doctrine is equal
ly inapplicable, for, as Judge Hives said below:
“ . . . the segregation statutes are incapable of a valid
construction. No authority whatsoever may be found
for the proposition that, where a state statute is clearly
and unavoidably unconstitutional on its face, comity
requires that state courts be allowed the privilege of
26
so declaring. Such, a rule would be, not abstention, but
abdication of our judicial function.” (Emphasis in
original.)
The denial of preliminary injunctive relief to avoid irrep
arable harm to the appellees’ class (consisting of both
the continued clear violation of their constitutional rights
through maintenance of the segregation requirement, and
the great injury suffered because of the continuation of
the criminal prosecutions) was improper, even assuming
that there was a need for state court clarification of an issue
of state law. The court below relied heavily upon Harri
son v. N. A. A. C. P., 360 U. S. 167, to support its abstention.
But in the Harrison case both this Court and the trial court
abstained only after being assured that the criminal laws
there involved would not be enforced, and that plaintiffs
would not suffer further injury, pending clarification of
the state law issues (360 U. S. at 179; 159 F. Supp. 503, 534).
And here, unlike Harrison, the actual prosecutions are
proceeding against over 300 individuals. Harrison involved
only threatened prosecutions.
III. Federal Judicial Power May Be Exercised to En
join State Criminal Prosecutions During the Pen
dency o f a Federal Action on the Same Subject
Matter.
Judge Rives’ opinion below sets forth the principles gov
erning the federal judicial power to enjoin state criminal
prosecutions commenced during the pendency of a federal
action on the same subject matter. The cases cited by Judge
Rives support this doctrine. See, e.g., Ex parte Young, 209
U. S. 123, 161-162; In Re Sawyer, 124 U. S. 200, 211; Truax
v. Raich, 239 U. S. 33, affirming, 219 Fed. 273 (D. Ariz.
1915). Judge Rives said:
27
In terms of the anti-injunction statute, 28 U. S. C.
§2283, it is a power “in aid of our jurisdiction” to pre
vent state courts from interfering with the determina
tion of issues properly before the federal court. The
propriety of granting such a request, however, is dis
cretionary, and only the strongest equities will support
such outright interference with state proceedings al
ready commenced. I am of the opinion that such
equities exist in this case.
Judge Rives’ opinion also makes apparent the inadequacy
of any remedy at law. He pointed out, among other rea
sons for this, that individual defendants in the state courts
would have great difficulty in establishing the patterns or
practices over extended periods which demonstrate in this
record that racial discrimination was the basis of these
arrests and prosecutions.
Douglas v. Jeannette, 319 U. S. 157, which held that fed
eral courts as a matter of comity and equitable discretion
should not interfere with state criminal proceedings and
law enforcement officials when an adequate remedy is pro
vided in the state proceedings for the protection and asser
tion of all constitutional rights is not to the contrary.
As Judge Rives pointed out, the primary requirement of
Douglas v. Jeannette is “that there be an adequate state
remedy; that is not the case here”. Cf. Morrison v. Davis,
5th Cir. 1958, 252 F. 2d 102, 103, wherein the Court stated:
“This is not such a case as required the withholding of
federal court action for reason of comity, since for the
protection of civil rights of the kind asserted Congress
has created a separate and distinct federal cause of
action. 42 U. S. C. A. §1983. Whatever may be the rule
as to other threatened prosecutions, the Supreme Court
in a case presenting an identical factual issue affirmed
the judgment of the trial court in the Browder case
[Browder v. Gayle, D. C. Ala., 142 F. Supp. 707, aff’d
352 U. S. 903] in which the same contention was ad
vanced. To the extent that this is inconsistent with
Douglas v. City of Jeanette, Pa., 319 U. S. 157, 63
8. Ct. 877, 87 L. Ed. 1324, wTe must consider the earlier
ease modified.”
As set forth supra pp. 16-22, the class on behalf of whom
this suit was filed under Buie 23(a)(3), Federal Rules of
Civil Procedure, consists of persons subjected to segrega
tion in the City of Jackson and State of Mississippi in the
various ways such segregation is imposed. This includes
persons arrested and prosecuted for breach of the peace
whose only wrong was to violate existing state required
segregation patterns. See Garner v. Louisiana, supra;
Thompson v. Louisville, supra.
While appellants have not pressed for relief against
prosecution on behalf of those arrested prior to June 9,
1961, so far as persons arrested thereafter are concerned
there is no reason why they should not be entitled to the
fruits of any decree in this case. If the preliminary injunc
tion prayed had been granted when originally sought al
most all of these arrests and prosecutions could never have
occurred. Moreover, any change in status from being an
unarrested person to becoming an arrested and prosecuted
person has been the doing of the appellees, not of the
appellants. It is ironical in the extreme, that because of
their own unconstitutional action appellees should claim
that those against whom they are proceeding are not en
titled to protection of any decree in this case, or that the
named appellants, threatened by the same arrest and prose
cution cannot raise this issue. As this Court held in Evers
v. Dwyer:
29
. . . We do not believe that appellant, in order to
demonstrate the existence of an “actual controversy”
over the validity of the statute here challenged, was
bound to continue to ride the Memphis buses at the
risk of arrest if he refused to seat himself in the space
in such vehicles assigned to colored passengers. A
resident of a municipality who cannot use transporta
tion facilities therein without being subjected by statute
to special disabilities necessarily has, we think, a sub
stantial, immediate, and real interest in the validity
of the statute which imposes the disability. See Gayle
v. Browder, 352 US 903; 1 L ed 2d 114, 77 S Ct 145,
affirming the decision of a three-judge District Court
(Ala) reported at 142 F Supp 707.
(358 U. S. at 204)8
In addition, the relationship between the named appel
lants and others whose rights are asserted herein and
whom, it is submitted, the decree should protect, is suffi
ciently close that the rights of the latter may be raised by
the litigation prosecuted by the former. Barrows v. Jack-
son, 346 U. S. 249; Pierce v. Society of Sisters, 268 U. S.
510; NAACP v. Alabama, 357 U. S. 449; Truax v. Raich, 239
U. S. 33.
8 See also Boman v. Birmingham Transit Co., 280 F. 2d 531 (5th
Cir. 1960); Baldwin v. Morgan, 251 F. 2d 780 (5th Cir. 1958).
30
IV. The District Court Abused Its Discretion.
The Court below abused its discretion in remitting appel
lants to state judicial remedies and in not granting the
relief prayed by appellants. As Mr. Justice Brandeis has
stated, the esercise of discretion “does not extend to a re
fusal to apply well-settled principles of law to a conceded
state of facts,” Union Tool Company v. Wilson, 259 U. S.
107,112. Considering the uncontradicted facts and the clear
law, the segregation statutes of the State of Mississippi are
clearly unconstitutional; there was absolutely no justifica
tion to remit appellants to the State Courts and refuse to
issue a preliminary injunction. As to the disorderly conduct
and breach of the peace statutes, the Court below abused
its discretion in remitting appellants to the State Courts
and in failing to grant the relief prayed by appellants in
that the Court failed to enjoin the systematic use of the
processes of the criminal law to arrest and prosecute per
sons who violated appellees’ segregation orders. The exer
cise of discretion “implies conscientious judgment, not arbi
trary action,” Burns v. United States, 287 U. S. 216, 222-
223. As appellants’ rights, guaranteed by the Constitution
and Laws of the United States, would be violated regardless
of the construction put on these statutes by the State courts,
the Court below abused its discretion in not entering a pre
liminary injunction. The doctrine of abstention was im
properly invoked since no construction placed on the state
statutes in question would have avoided the constitutional
issue pleaded and proved. Harrison v. NAACP, 360 U. S.
167, was improperly relied upon below as justifying absten
tion under the facts of this case. As full testimony had
been taken, argument had and briefs submitted, the pre
liminary injunction should have also been made final.
31
We believe, therefore, that the questions presented by the
appeal are substantial and that they are of public impor
tance.
Respectfully submitted,
Constance B aker Motley
J ack Greenberg
J ames M. N abrit, I I I
Derrick A. B ell, J r.
10 Columbus Circle
New York 19, N. Y.
R. J ess Brown
1105% Washington Street
Vicksburg, Mississippi
Attorneys for Appellants
Michael Meltsner
Of Counsel
Opinion o f the United States District Court,
Southern District o f Mississippi
Filed November 17, 1961
IN THE UNITED STATES DISTRICT COURT
F oe the Southern District of Mississippi
J ackson Division
Civil Action No. 3133
[ same title]
Before R ives, Circuit Judge, and Mize and Clayton,
District Judges.
Mize, District Judge:
The plaintiffs in this case are Samuel Bailey, Joseph
Broadwater and Burnett L. Jacob, each of whom is an
adult Negro citizen of the United States and the State
of Mississippi, who filed their complaint herein on June
9, 1961. The defendants in the case as shown by the
amended complaint are Joe T. Patterson, The City of
Jackson, Allen C. Thompson, Douglas L. Luckey, W. D.
Rayfield, Jackson Municipal Airport Authority, Continen
tal Southern Lines, Inc., Southern Greyhound Lines, Il
linois Central Railroad, Inc., Jackson City Lines, Inc.,
Cicero Carr. Each of the defendants has filed an answer
to the amended complaint, setting out their defenses. The
issues are clearly defined by these pleadings. The amended
complaint was in substance a substitution of the original
complaint.
2a
Opinion of the United States District Court
It is the contention of the plaintiffs that Sections 2351,
2351.5, 2351.7, 7784, 7785, 7786, 7786-01, 7787, and 7787.5
of the Code of Mississippi of 1942 are unconstitutional;
that the defendants are seeking to enforce these statutes;
and that a preliminary injunction should be issued en
joining the defendants and each of them and their suc
cessors from enforcing any of these statutes or any other
statutes requiring racial segregation on common carriers
or in the facilities maintained by common carriers. Plain
tiffs further contend that the defendant, City of Jackson
and its officials are enforcing an ordinance of the City of
Jackson adopted January 12, 1956, and contend that this
ordinance of the City is unconstitutional on its face, but
that notwithstanding its unconstitutionality, the defen
dants, City of Jackson and its officials, have threatened
to enforce this ordinance against the plaintiffs and mem
bers of their class. Plaintiffs further contend that the de
fendants and each of them, acting under color of the laws
of the State of Mississippi and under color of Sections
2087.5, 2087.7 and 2089.5 of Mississippi Code of 1942, have
pursued and will continue to pursue a policy and custom
of segregation of negro and white persons on common
carriers in the State of Mississippi unless restrained, and
they contend further that they have no other speedy or
adequate remedy at law other than by injunction. Plain
tiffs pray for the organization of a three-judge court as
required by Title 28 USC, Section 2284, and pray for the
issuance of a preliminary and permanent injunction en
joining each of the defendants from enforcing or attempt
ing to enforce any of the aforementioned statutes or any
other statute of the State of Mississippi requiring segrega
tion; pray for an injunction enjoining the City of Jack-
son or any of its officers from enforcing any of the
3a
Opinion of the United States District Court
ordinances of the City of Jackson hereinabove referred
to; to enjoin the defendants and each of them from con
tinuing to enforce any policy or custom under color of
State law or City ordinances of segregating negro and
white passengers on common carriers or in facilities main
tained by any common carrier, from continuing to enforce
any policy or custom of segregating the races in the facil
ities and services of the Jackson Municipal Airport or its
restaurant operated by Cicero Carr, and from continuing
to arrest, intimidate or threaten to arrest members of
their class in connection with the exercise of their Fed
erally protected right to use inter and intra state trans
portation and services without segregation or discrimina
tion because of their race.
The defendants and each of them in their answers deny
that they are enforcing or attempting to enforce any of the
statutes against the plaintiffs or any of their class be
cause oftheir race. Defendants contend that this is the
type of action wherein the Federal Court should abstain
from passing on these statutes until the State courts have
first had an opportunity to pass on its own laws and city
ordinances.
All the defendants contend that no injunction should
issue against either of the defendants. More specifically,
the defendant Joe T. Patterson contends that this is not
properly a class action; that the amended complaint raises
factual and legal controversy involving unsettled ques
tions of state law which should properly be decided first
by the Supreme Court of Mississippi in order to avoid
unnecessarily deciding constitutional questions, and that
there is a full and adequate procedure existing in the state
tribunals of the state for the plaintiffs to assert all of their
rights and privileges claimed by this suit; and that none
4a
Opinion of the United States District Court
of the laws of the State of Mississippi that are complained
of in the amended complaint have ever been presented to
the highest tribunal or any other court of the State of
Mississippi for adjudication. The Attorney General fur
ther contends that in effect this suit against the Attorney
General in his official capacity is an action against the
State of Mississippi, which, under the provisions of the
Eleventh Amendment to the Constitution could not be
maintained without its consent, and further, that the com
plaint attacks the enforcement of parts of the criminal
laws of the State of Mississippi which have been passed
in the sovereign capacity of the State for the purpose of
protecting all persons of the state against domestic vio
lence, and undertakes to prevent the enforcement of the
ordinances of the City of Jackson and to prevent the State
officials of Mississippi from enforcing Sections 2087.5,
2087.7 and 2089.5 of the Mississippi Code of 1942. (These
statutes are set out in Appendix I.) He contends that these
statutes are constitutional and are not being unconsti
tutionally enforced. He further contends that this action
constitutes an attempt to control the law enforcement of
ficials of the City of Jackson, as well as the State of Mis
sissippi in the exercise of their valid discretionary powers
and authority.
The defendants, City of Jackson anl Allen Thompson,
its Mayor, the Commissioners and Chief of Police con
tend that the amended complaint raises primarily factual
issues and that the primary issue raised by the amended
complaint involves the arrest of the so-called Freedom
Eiders under Sections 2087.5 et seq. of the Code of 1942
and that the arrest of the Freedom Eiders was legitimate
and in accord with these sections, and that these sections
were not unconstitutionally enforced. They contend spe-
5a
Opinion of the United States District Court
cifically that there was no effort to enforce segregation
laws by the arrests, but simply to maintain law and order
and to prevent breaches of the peace. They further con
tend that this Court should abstain from passing on the
constitutionality of these Acts until passed upon by the
Supreme Court of Mississippi and contend, also, that the
City of Jackson is an agency of the State of Mississippi
and, therefore, not subject to suit.
The defendants, Continental Southern Lines, Inc., South
ern Greyhound Lines, Illinois Central Railroad, Inc.,
Jackson City Lines, Inc., Jackson Municipal Airport Au
thority and Cicero Carr contend that they have not caused
the arrest of anyone and that they are not seeking to
enforce the segregation laws of the State of Mississippi,
and contend that no injunction should issue against them,
for the reason that the plaintiffs have a full, complete and
adequate remedy at law to redress any grievances they
may have.
Briefly, these are the main contents of the respective
parties as reflected by the pleadings in this case.
The majority of the Court has reached the conclusion
that under the issues as raised by the pleadings in this
case it is the duty of this court to abstain from passing on
the issues, but retain the cause of action on its docket and
remit the plaintiffs to the State Courts of Mississippi for
a prior adjudication of the issues and of the scope and
meaning of its own statutes as so defined. This Court
should simply stay its hand until the adequate and proper
remedies provided for by the statutes of the State of Mis
sissippi should be exhausted. By this procedure the comity
existing between the Federal Courts and the State Courts
would be maintained without any serious injury to any-
6a
Opinion of the United States District Court
one. With the exception of Sections 2351 and 7784,1 the
sections of the Mississippi Code complained of and the
constitutionality of which is under attack herein have
never been passed upon by the Supreme Court of Mis
sissippi. These sections 2351, 2351.5, 2351.7, 7784, 7785,
7786, 7786-01, 7787, and 7787.5 of the Mississippi Code of
1942 as amended are set out in Appendix II to this opinion.
Before this Court should pass upon the constitutionality
of these statutes in this particular case, wherein it is
shown by the contentions of the parties that there will be
factual issues as well as the constitutionality of the stat
utes involved, the courts of the State of Mississippi should
be afforded an opportunity to pass upon them.
This equitable principle of abstention is well supported
by the decisions of the Supreme Court of the United States,
as well as by many of the decisions of the various Courts
of Appeal and District Courts. It will not be necessary
1 The Mississippi Supreme Court in Louisville, N. 0. & T. B.
Co. v. State, 66 Miss. 662, 6 So. 203, held that the Mississippi Act
of March 2, 1888, now Sections 2351 and 7784, Mississippi Code
1942, Recompiled, applied solely to commerce within the state and
affirmed a conviction based on a violation of the Act. In affirming,
the United States Supreme Court held, in Louisville, N. 0. & T. B.
Co. v. Mississippi, 1889, 133 U. S. 587, that a state may require
railroads to provide separate accommodations for the white and
colored races without violating the commerce clause of the Con
stitution so long as the statute applies only to commerce within
the state.
In 1912, the Mississippi Supreme Court held, in Alabama &
V. By. Co. v. Morris, 103 Miss. 511, 60 So. 11, that Sections 4059
and 1351, Mississippi Code 1906, now Sections 2357 and 7784, ap
plied to interstate travelers and was a reasonable exercise of the
police power of the state, and, in 1919, the Mississippi Supreme
Court held that Section 4059, Mississippi Code 1906, now Section
7784, Mississippi Code 1942, Recompiled, did not violate either
the commerce clause of, or the Fourteenth Amendment to, the
federal Constitution. Illinois Central B. Co. v. Bedmond, 119 Miss.
765, 81 So. 115.
7a
Opinion of the United States District Court
to refer to all the decisions that have adhered to this
doctrine, bnt the quotations from a few of the leading cases
will be decisive. Probably the one most nearly in point is
the case of Harrison, Attorney General of Virginia, et al.
v. National Association for the Advancement of Colored
People, et al., 360 U. S. 167, in which it was held by the
Supreme Court of the United States that the Federal
Courts should not adjudicate the constitutionality of state
enactments fairly open to interpretation until the State
Courts have been afforded a reasonable opportunity to
pass upon them. The Court said:
“According every consideration to the opinion of
the majority below, we are nevertheless of the view
that the District Court should have abstained from
deciding the merits of the issues tendered it, so as to
afford the Virginia courts a reasonable opportunity
to construe the three statutes in question. * # *
“This now well-established procedure is aimed at the
avoidance of unnecessary interference by the federal
courts with proper and validly administered state con
cerns, a course so essential to the balanced working
of our federal system. To minimize the possibility of
such interference a ‘scrupulous regard for the right
ful independence of state governments . . . should at
all times actuate the federal courts.’ Matthews v. Rodg
ers, 284 U. S. 521, 525, as their ‘contribution . . . in
furthering the harmonious relationship between state
and federal authority . . . ’ Railroad Comm’n v. Pull
man Co., 312 U. S. 496, 501. In the service of this
doctrine, which this Court has applied in many dif
ferent contexts, no principle has found more consis
tent or clear expression that the federal courts should
8a
Opinion of the United States District Court
not adjudicate the constitutionality of state enact
ments fairly open to interpretation until the state
courts have been afforded a reasonable opportunity to
pass upon them. See e.g., Railroad Comm’n v. Pull
man Co., supra; Chicago v. Fieldcrest Dairies, Inc.,
316 U. S. 168; Speetor Motor Service Inc. v. Mc
Laughlin, 323 TJ. S. 101; American Federation of La
bor v. Watson, 327 U. S. 582; Shipman v. DuPre, 339
TJ. S. 321; Albertson v. Millard, 345 U. S. 242; Gov
ernment & Civic Employees v. Windsor, 353 U. S.
364. This principle does not, of course, involve the
abdication of federal jurisdiction, but only the post
ponement of its exercise; it serves the policy of comity
inherent in the doctrine of abstention; and it spares
the federal courts of unnecessary constitutional ad
judication. See Chicago v. Fieldcrest Dairies, Inc.,
supra, at 172-173.
“The present case, in our view, is one which calls
for the application of this principle, since we are un
able to agree that the terms of these three statutes
leave no reasonable room for a construction by the
Virginia Courts which might avoid in whole or in
part the necessity for federal constitutional adjudica
tion, or at least materially change the nature of the
problem.”
The Court said, further: “We do not intimate the slight
est view as to what effect any such determinations might
have upon the validity of these statutes. All we hold is
that these enactments should be exposed to state construc
tion or limiting interpretation before the federal courts
are asked to decide upon their constitutionality, so that
federal judgment will be based on something that is a com-
9a
Opinion of the United States District Court
plete product of the state, the enactment as phrased by its
legislature and as construed by its highest court.”
Just as was said by the Supreme Court of the United
States, supra, we do not in this case undertake to pass
upon any of the issues that have been raised, nor do we
intimate whether the statutes are constitutional or uncon
stitutional, for the reason that the courts of the State of
Mississippi should be permitted to pass upon these ques
tions, uninfluenced by any adjudication or intimation of
ours as to the statutes. We have given careful considera
tion not only to the opinion of the majority of the Court
in that case and the governing rule announced by it, but
we also have considered the thinking of Mr. Justice Doug
las, who dissented, in which he was joined by the Chief
Justice and Mr. Justice Brennan, whose opinion set out
the history and doctrine, considering also the decisions
cited in the dissenting opinion. However, as a general
rule, every lawsuit must be determined by the issues raised
in the pleadings in the particular case, and it is our view
that in this particular case, where the constitutionality of
the statutes of Mississippi is questioned and has never been
passed upon by the highest court of the State, a sound
discretion requires that the federal courts abstain. In the
case of Spector Motor Co. v. McLaughlin, 323 U. S. 101,
the Supreme Court used this language:
“If there is one doctrine more deeply rooted than
any other in the process of constitutional adjudication,
it is that we ought not to pass on questions of constitu
tionality—here the distribution of the taxing power
as between the State and the Nation—unless such ad
judication is unavoidable. And so, as questions of
federal constitutional power have become more and
10a
Opinion of the United States District Court
more intertwined with preliminary doubts about local
law, we have insisted that federal courts do not de
cide questions of constitutionality on the basis of pre
liminary guesses regarding local law.” (Citing au
thorities).
In connection with Harrison v. N. A. A. C. P., supra,
see the many authorities cited in the dissenting opinion of
Judge Sterling Hutcheson, 159 Fed. Sup. 535, with refer
ence to abstention. In that exhaustive dissent he reviews,
at page 540, et seq., the many authorities upholding this
doctrine of abstention.
We are in thorough accord with the opinion of the Court
of the Fifth Circuit in the case of Empire Pictures Dis
tributing Company, Inc., et al. v. City of Fort Worth, et
al., 273 Fed. (2) 529, in which the Court upheld the doc
trine of abstention and quotes at length from many of the
applicable authorities to that doctrine, and particularly
applicable to the issues raised in the case here. In that
case the Court said: “At the threshold of the case lies the
question whether the trial court ought not sua sponte to
have withheld action ‘while the parties repaired to a state
tribunal for an authoritative declaration of applicable state
law’.” The Court then, in a very able opinion, and exhaus
tive, cited the many authorities, quoting from a number
of them to the effect that the trial courts should have ab
stained. We shall not quote at length from that opinion
more than to say that we adopt it as announcing the con
trolling principles of the law governing us in abstention
in this case. In the earlier case of Railroad Comm’n of
Texas, et al. v. Pullman Company, et al., 312 U. S. 496,
the Supreme Court of the United States said:
11a
Opinion of the United States District Court
“Few public interests have a higher claim upon the
discretion of a federal chancellor than the avoidance
of needless friction with state policies, whether the
policy relates to the enforcement of the criminal law,
Fenner v. Boykin, 271 U . S. 240, Spielman Motor Co.
v. Dodge, 295 U . S. 89; or the administration of a
specialized scheme for liquidating embarrassed busi
ness enterprises, Pennsylvania v. Williams, 294 U . S.
176; or the final authority of a state court to interpret
doubtful regulatory laws of the state, Gilchrist v.
Interborough Co., 279 U. S. 159; cf. Hawks v. Hamill,
288 IT. S. 52.61. These cases reflect a doctrine of ab
stention appropriate to our federal system whereby
the federal courts, ‘exercising a wise discretion,’ re
strain their authority because of ‘scrupulous regard
for the rightful independence of the state governments’
and for the smooth worldng of the federal judiciary.
See Cavanaugh v. Looney, 248 U. S. 453, 457; Di Gio
vanni v. Camden Ins. Assn., 296 U. S. 64, 73. This use
of equitable powers is a contribution of the courts in
furthering the harmonious relation between state and
federal authority without the need of rigorous con
gressional restriction of those powers.”
We think the above authorities and those cited below2
along with those mentioned in the various opinions in the
cases supra are ample to require that the federal court
abstain.
2 Martin v. Creasy, 360 XT. S. 219; County of Allegheny v. Mas-
huda Co., et al., 360 U. S. 185; Watson v. Buck, 313 U. S. 387;
Callaway v. Benton, 336 U. S. 142; Government and Civic Em
ployees Organization of G. I. 0. v. Windsor, 353 U. S. 664; Two
Guys from Harrison—Allentown v. McGinley, 366 U. S. 589.
12a
Opinion of the United States District Court
Moreover, the doctrine of abstention is peculiarly appli
cable in this case because of the attack made upon Sections
2087.5, 2087.7 and 2089.5 of the Mississippi Code of 1942,
generally known as the peace statutes. All the authorities
hereinbefore cited are applicable to these statutes, but
there are other authorities which we think are just as
applicable and for that reason we are treating these sep
arately. As shown by the pleadings, the plaintiffs are con
tending that the defendants are using these statutes to
enforce segregation and the defendants are contending
that these statutes are constitutional and are not being
used to enforce segregation, but are being used for the
purpose of protecting the public against violence and dis
turbance of the peace. This Court, in the case of Wykcoff,
had an occasion to pass upon a petition for habeas corpus
growing out of the arrest of one of the “Freedom Riders”
in the City of Jackson, wherein it was contended by the
petitioner in that case that this statute was being used to
enforce segregation. Her petition for the writ of habeas
corpus alleged that she was convicted of violation of Sec
tion 2087.5 of the Mississippi Code and that she did not
have any remedy at law other than the writ of habeas
corpus to secure her release, and that her imprisonment
was a denial of her due process of law under the Fifth
and Fourteenth Amendments to the Constitution of the
United States. The respondent, the Sheriff of Hinds
County, in answering the petition for the writ, averred
that she was convicted in a court having jurisdiction and
that he was holding the petitioner by virtue of a commit
ment from that court. The matter was heard before the
Court of the Southern District of Mississippi and the writ
denied. She immediately petitioned the Court of Appeals
for the Fifth Circuit for an appeal in forma pauperis,
13a
Opinion of the United States District Court
that the petition be granted and the case advanced. The
Court of Appeals denied the petition and since the opin
ion has not been published, a copy of the opinion rendered
by the Court is attached hereto in Appendix III.
In the trial before the lower court it was contended by
petitioner that she had no adequate remedy at law, which
contention was not upheld, as it was shown that under
the statutes of Mississippi particularly she did have a full,
adequate and speedy remedy at law and these statutes
are set out in the opinion of the District Court. 196 F.
Supp. 515. In that case the Court did retain jurisdiction,
but since the petitioner did have adequate remedy at law,
the writ was denied. In that opinion the Court said: “As
heretofore stated, the federal courts are very reluctant
indeed to interfere with the orderly process of a state
court involving state matters.” And cited the cases of
Davis v. Burke, 179 U. S. 399; Parte Hawk, 321 U. S. 114;
Stock v. Boyle, 342 U. S. 1; Brown v. Allen, 344 U. S. 443.
It is true that upon an application for a writ of habeas
corpus there is a federal statute which prohibits the fed
eral courts from interfering with the state courts, except
in those cases specifically authorized by Congress. How
ever, the principle involved is the same, since it is the gen
eral doctrine that the federal courts should not lend their
equitable powers and injunctive powers until the state
courts first have passed upon the constitutionality of its
own acts. Section 2283, Title 28, U. S. C. A. prohibits a
court of the United States from granting an injunction to
stay proceedings in a state court except as expressly au
thorized by the Act of Congress, or when necessary in aid
of its jurisdiction, or to protect and effectuate its judg
ments. In view of that statute the writ of habeas corpus
was denied in the Wykcoff case, and citing in support
14a
Opinion of the United States District Court
thereof: Empire Pictures Distributing Co. v. City of
Fort Worth, 273 Fed. 2d 529; Douglas v. City of Jean
nette, 319 U. S. 157.
At pages 163-164 of the City of Jeannette case, supra,
the Supreme Court of the United States said:
“The power reserved to the states under the Con
stitution to provide for the determination of contro
versies in their courts may be restricted by federal
district courts only in obedience to Congressional
legislation in conformity to the Judiciary Article of
the Constitution. Congress, by its legislation, has
adopted the policy, with certain well defined statu
tory exceptions, of leaving generally to the state
courts the trial of criminal cases arising under state
laws, subject to review by this Court of any federal
questions involved. * * *
“ * * * No person is immune from prosecution in
good faith for his alleged criminal acts. Its imminence,
even though alleged to be in violation of constitutional
guaranties, is not a ground for equity relief since the
lawfulness or constitutionality of the statute or ordi
nance on which the prosecution is based may be
determined as readily in the criminal case as in a
suit for injunction. # * Where the threatened pros
ecution is by state officers for alleged violations of a
state law, the state courts are the final arbiters of
its meaning and application, subject only to review
by this Court on federal grounds appropriately as
serted. Hence the arrest by the federal courts of the
processes of the criminal law within the states, and
the determination of questions of criminal liability
under state law by a federal court of equity, are to be
15a
Opinion of the United States District Court
supported only on a showing of danger of irreparable
injury ‘both great and immediate’. * * *
u * m m ^ (}oeg ri0t appear from the record that
petitioners have been threatened with any injury other
than that incidental to every criminal proceeding
brought lawfully and in good faith, or that a federal
court of equity by withdrawing the determination of
guilt from the state courts could rightly afford peti
tioners any protection which they could not secure by
prompt trial and appeal pursued to this Court.”
The principles announced in the Jeannette case have been
reaffirmed on the basis of that case and the Stefanelli case,
342 U. S. 117, 123-124, in two Supreme Court cases de
cided this year: Wilson v. Sehnettler, et al., 365 U. S. 381,
and Tugach v. Bollinger, 365 U. S. 458. These eases are
discussed more at length in the Wyckoff case, 196 F. Supp.
522-523.
The whole question of State-Federal relationships and
their history is discussed in a recent decision of the Court
of Appeals for the Fifth Circuit in Smith & Son, Inc. v.
Williams, 275 F. 2d 396. Beginning on page 402 will be
found a large number of cases applicable to the questions
before us.
Statutes generally known as peace statutes exist in most
of the States of the Union and have been applied under a
variety of circumstances in recent times. They have been
used by the officers of the States and subdivisions thereof
to prevent violence and more serious offenses where peo
ple have gathered, or are threatening to gather in numbers
under pressure of emotional stress. The public press car
ried an account recently of a congregation of a large num
ber of white people when Negroes sought to make use of
16a
Opinion of the United States District Court
bathing beaches at or near Chicago. It was stated that
the state officers made use of loud speakers to order the
crowd to leave the scene or be subject to imprisonment
under state laws. It was not hinted that those who had
collected did not have the full right to be where they were.
Acting under state peace statutes, the officers simply re
quired them to move on, because in their judgment their
presence was likely to lead to a breach of the peace. The
scope and reach of such statutes varies from state to state,
and their application to a given situation makes a peculiar
call on the judgment of state tribunals before such applica
tion should be tested in a court of the United States.
The situation disclosed by the facts in this record fall,
in our opinion, directly within the scope of the decisions
of the Supreme Court requiring abstention until the State
courts have decided the full meaning of their respective
statutes and their application to the situations which are
presented to us.
The record before us shows the pendency of a number of
proceedings before the State Courts of Mississippi under
the peace statutes, and the class for which the plaintiffs
here purport to act is already participating in state court
proceedings where all of the questions raised before us
may be fully presented with the right of appeal to the
Supreme Court of the United States.
An order will be entered, therefore, abstaining from fur
ther action in this cause to give the State Courts of Mis
sissippi a reasonable opportunity to act either in the cases
already pending or in any new case which any of the par
ties may elect to commence.
17a
APPENDIX I
Statutes Involved
Mississippi Code of 1942
§ 2087.5—
“1. Whoever with intent to provoke a breach of the
peace, or under circumstances such that a breach of
the peace may be occasioned thereby:
“ (1) crowd or congregates with others in or upon
shore protecting structure or structures, or a public
street or public highway, or upon a public sidewalk,
or any other public place, or in any hotel, motel, store,
restaurant, lunch counter, cafeteria, sandwich shop,
motion picture theatre, drive-in, beauty parlor, swim
ming pool area, or any sports or recreational area or
place, or any other place of business engaged in selling
or serving members of the public, or in or around any
free entrance to any such place of business or public
building, or to any building owned by another indi
vidual or a corporation, or a partnership or an asso
ciation, and who fails or refuses to disperse and move
on, or disperse or move on, when ordered so to do by
any law enforcement officer of any municipality, or
county, in which such act or acts are committed, or by
any law enforcement officer of the State of Mississippi,
or any other authorized person, or
“ (2) insults or makes rude or obscene remarks or
gestures, or used profane language, or physical acts,
or indecent proposals to or toward another or others,
or disturbs or obstructs or interferes with another
or others, or
“ (3) while in or on any public bus, taxicab, or other
vehicle engaged in transporting members of the pub-
18a
Appendix I—Statutes Involved
lie for a fare or charge, causes a disturbance or does
or says, respectively, any of the matters or things
mentioned in subsection (2) supra, to, toward, or in
the presence or any other passenger on said vehicles
or any person outside of said vehicle or in the proc
ess of boarding or departing from said vehicle, or
any employee engaged in and about the operation of
such vehicle, or
“ (4) refusing to leave the premises of another when
requested so to do by any owner, lessee, or any em
ployee thereof,
“shall be guilty of disorderly conduct, which is made
a misdemeanor, and, upon conviction thereof, shall
be punished by a fine of not more than two hundred
dollars ($200.00), or imprisonment in the county jail
for not more than four (4) months, or by both such
fine and imprisonment; and if any person shall be
guilty of disorderly conduct as defined herein and
such conduct shall lead to a breach of the peace or
incite a riot in any of the places herein named, and
as a result of said breach of the peace or riot another
person or persons shall be maimed, killed or injured,
then the person guilty of such disorderly conduct as
defined herein shall be guilty of a felony, and upon
conviction such person shall be imprisoned in the
Penitentiary not longer than ten (10) years.
“2. The provisions of this act are supplementary
to the provisions of any other statute of this state.
“3. If any paragraph, sentence, or clause of this
act shall be held to be unconstitutional or invalid, the
same shall not affect any other part, portion or pro-
19a
Appendix I—Statutes Involved
vision of this act, but such other part shall remain in
full force and effect.” Source: Laws of 1960.
§ 2087.7—
“1. It shall be unlawful for any person or persons,
while in or on the premises of another, whether that
of an individual person, or a corporation, or a partner
ship, or an association, and on which property any
store, restaurant, sandwich shop, hotel, motel, lunch
counter, bowling alley, moving picture theatre or
drive-in theatre, barber shop or beauty shop, or any
other lawful business is operated which engaged in
selling articles of merchandise or services or accom
modation to members of the public, or engages gen
erally in business transactions with members of the
public, to :
“ (1) prevent or seek to prevent, or interfere with,
the owner or operator of such place of business, or
his agents or employees, serving or selling food and
drink, or either, or rendering service or accommoda
tion, or selling to or showing merchandise to, or other
wise pursuing his lawful occupation or business with,
customers or prospective customers, or other members
of the public who may then be in such building, or
“ (2) prevent or seek to prevent, or interfere with,
or seek to interfere with, other persons, expressly or
impliedly invited upon said premises, or prospective
customers, coming into or frequenting such premises
in the normal course of the operation of the business
conducted and carried on upon said premises,
“shall be guilty of disorderly conduct, a misdemeanor,
and upon conviction thereof, shall be punished by a
20a
Appendix I—Statutes Involved
fine of not more than five hundred dollars ($500.00),
or by imprisonment in the county jail for not more
than six (6) months, or by both such fine and im
prisonment.
“2. The provisions of this act are supplementary
to the provisions of any other statute of this state.
“3. If any paragraph, sentence, or clause of this
act shall be held to be unconstitutional, or invalid,
the same shall not affect any other part, portion or
provision thereof, but such other part shall remain
in full force and effect.” Source: Laws of 1960.
§ 2089.5—
“1. Any person who disturbs the public peace, or
the peace of others, by violent, or loud, or insulting,
or profane, or indecent, or offensive, or boisterous
conduct or language, or by intimidation, or seeking
to intimidate any other person or persons, or by con
duct either calculated to provoke a breach of the
peace, or by conduct which may lead to a breach of
the peace, or by any other act, shall be guilty of a
misdemeanor, and upon conviction thereof, shall be
punished by a fine of not more than five hundred
dollars ($500.00), or by imprisonment in the county
jail not more than six (6) months, or both.
“2. The provisions of this act are supplementary
to the provisions of any other statute of this state.
“3. If any paragraph, sentence or clause of this
act shall be held to be unconstitutional or invalid, the
same shall not affect any other part, portion or pro
vision thereof, but such other part shall remain in
full force and effect.” Source: Laws of 1960.
21a
APPENDIX II
Statutes Involved
Mississippi Code op 1942
§ 2351—
“If any person or corporation operating a railroad
shall fail to provide two or more passenger cars for
each passenger train, or to divide the passenger cars
by a partition, to secure separate accommodations for
the white and colored races, as provided by law, or
if any railroad passenger conductor shall fail to as
sign each passenger to the ear or compartment of the
car used for the race to which the passenger belongs,
he or it shall be guilty of a misdemeanor, and, on con
viction shall be fined not less than twenty dollars nor
more than five hundred dollars.” Source: Code of
1892.
§ 2351.5—
“Every railroad company, bus company or other
common carrier for hire owning, maintaining or oper
ating a passenger depot, bus station or terminal where
a waiting room for passengers is maintained and op
erated shall cause to be constructed and maintained
in connection with such reception or waiting room two
closets or retiring or rest rooms to be exclusively used
by white passengers in intrastate commerce arriving
and departing from such depot, bus station or terminal
and the following notice shall be painted or shown in
bold letters on the door of one: “Rest Room, white
female only in intrastate travel”, and on the other:
“Rest Room, white male only in intrastate travel” ;
22a
Appendix II—Statutes Involved
and likewise two closets or retiring or rest rooms shall
be constructed and maintained for colored passengers
in intrastate travel with like signs painted or shown
in bold letters on the doors thereof, substituting the
word “colored” for “white”, and such owner or opera
tor shall see that the closets or rest rooms are equally
clean and in equally good sanitary condition.
“No white person shall enter, frequent, occupy or use
the colored closets or rest rooms required by this act,
and no colored person shall enter, frequent or occupy
or use the white closets or rest rooms required by this
act, except, however, regularly employed persons of
the owner or operator of the passenger depots, bus
stations or terminals may enter such closets or rest
rooms in the discharge of their assigned duties.
“Any person violating the provisions of this act shall
be guilty of a misdemeanor and upon conviction thereof
shall be fined not more than one thousand dollars
($1,000.00) or confined in jail for not more than one
year, or both.” Source: Laws of 1956.
§ 2351.7—
“1. Any person traveling in intrastate travel by
rail, bus, airline or other common carrier for hire who
knowingly or wilfully enters or attempts to enter the
waiting room not marked and provided for persons
other than his or her race as required by law, shall
be guilty of a misdemeanor and upon conviction
thereof shall be fined not more than one thousand
dollars ($1,000.00) and imprisoned in jail not more
than sixty (60) days, or both such fine and imprison
ment.
23a
Appendix II—Statutes Involved
“2. No white person shall enter, frequent, occupy
or use the colored waiting room of any depot, bus
station or terminal when such waiting room is marked
in bold letters as required by law; and no colored per
son shall enter, frequent, occupy or use the white
waiting room of any depot, bus station or terminal
when same is marked in bold letters as required by
law, except, however, regularly employed persons of
the owner or operator of depots, bus stations or termi
nals may enter same in the discharge of their assigned
and required duties.
“Any person violating the provisions of this section
shall be guilty of a misdemeanor and upon conviction
thereof shall be fined not more than one thousand dol
lars ($1,000.00) and imprisoned in jail for not more
than one year, or both.
“3. No action or suit in low or in equity may be
brought in any court of this state against any law
enforcement officer for damages for false arrest of
any passenger because of a violation of this act, nor
shall any common carrier of passengers, or its em
ployees be subject to suit for damages on account of
such common carrier of passengers or its employees
complying with the provisions of this act.
“4. In the event any part or parts of this act shall
be held unconstitutional, the remaining portion of this
act shall remain in full force and effect.” Source:
Laws of 1956.
§ 7784—
“Every railroad carrying passengers in this state
shall provide equal but separate accommodations for
24a
Appendix II—Statutes Involved
the white and colored races by providing two or more
passenger cars for each passenger train, or by dividing
the passenger cars by a partition to secure separate
accommodations; and the conductor of such passenger
train shall have power, and is required, to assign each
passenger to the car, or the compartment of a car,
used for the race to which such passenger belongs;
and should any passenger refuse to occupy the ear to
which he or she is assigned by the conductor, the con
ductor shall have power to refuse to carry such pas
senger on the train, and for such refusal neither he
nor the railroad company shall be liable for damages
in any court.” Source: Code of 1892,
§ 7785—
“All persons or corporations operating street rail
ways and street or municipal buses, carrying passen
gers in this state, and every common carrier by motor
vehicle of passengers in this state as defined by sec
tion 3 (e) of chapter 142 of the laws of 1938 (§ 7634,
Code of 1942), shall provide equal, but separate, ac
commodations for the white and colored races.
“Every common carrier by motor vehicle of passengers
in this state, as defined by section 3 (e) of chapter
142 of the laws of 1938 (§7634, Code of 1942), by
buses or street cars operated entirely within the cor
porate limits of a municipality, or within a radius of
5 miles thereof, shall divide its passengers by the use
of an appropriate sign 4 x 9 inches, for the purpose
of, and in a a manner that will “suitably provide for,
a separation of the races, and all other buses and
motor vehicles carrying passengers for hire in the
25a
Appendix II—Statutes Involved
state of Mississippi shall use a latticed movable par
tition extending from the top of the seat to the ceiling
of the vehicle, said partition not to obstruct the view
of the driver of the vehicle to secure such separate
accommodations; provided, however, that this act
shall not apply to buses operated exclusively for the
carrying of military personnel; and the operators of
such passenger buses shall have power, and are re
quired, to assign each passenger to the compartment
of the bus used for the race to which such passenger
belongs; and in no case shall any passenger be per
mitted to stand in the aisle of the compartment in
which he does not belong and is not so assigned; and
should any passenger refuse to occupy the compart
ment to which he or she belongs and is assigned, the
operator shall have the power to refuse to carry such
passenger on the bus; or should either compartment
become so loaded in transit as not to permit the taking
on of any further passengers for that compartment,
then the bus operator shall not be required and shall
refuse to take on any further passengers in violation
of this act. Even though such additional passengers
may have purchased and may hold tickets for trans
portation on the said bus, the only remedy said pas
sengers shall have for failure or refusal to carry them
under such circumstances is the right to a refund of
the cost of his ticket, and for said refusal in either case
neither the operator nor the common carrier shall be
liable for damages in any court. Such partition may
be made movable so as to allow adjustment of the
space in the bus to suit the requirements of traffic.”
Source: Code of 1956.
Appendix II—Statutes Involved
§ 7786—
“The operators of such street cars and street buses
and motor vehicles, as defined by chapter 142 of the
laws of 1938 (§§ 7632-7687, Code of 1942) shall have
power and are required to assign each passenger to
the space or compartment used for the race to which
such passenger belongs.
“Any passenger undertaking or attempting to go into
the space or compartment to which by race he or she
does not belong shall be guilty of a misdemeanor, and
upon conviction, shall be liable to a fine of twenty-five
dollars ($25.00), or, in lieu thereof, by imprisonment
for a period of not more than thirty (30) days in the
county jail; and any operator of any street car or
street bus or motor vehicle as herein defined, assign
ing or placing a passenger to the space or compart
ment other than the said one set aside for the race to
which said passenger belongs shall be guilty of a mis
demeanor and, upon conviction, shall be liable to a
fine of twenty-five dollars ($25.00), or, in lieu thereof,
to imprisonment for a period of not more than thirty
(30) days in the county jail.” Source: Code of 1906.
§ 7786.01—
“Every person or corporation operating street rail
ways and street or municipal buses, carrying pas
sengers in this state, and every common carrier of
passengers in this state by motor vehicle, as defined
by section 3 (e) of chapter 142 of the laws of 1938
(§7634, Code of 1942), guilty of wilful and continued
failure to observe or comply with the provisions of
this act shall be liable to a fine of twenty-five dollars
27a
Appendix II—Statutes Involved
($25.00) for each offense, and each day’s violation of
the provision hereof shall constitute a separate vio
lation of this act; provided, however, that in the case
of persons or corporations operating street railways
and street or municipal buses, the fine shall be ten
dollars ($10.00) instead of twenty-five dollars ($25.00).”
Source: Laws of 1944.
% 7787—
“All officers and directors of street railway com
panies who shall refuse or neglect to comply with the
provisions and requirements of the two preceding
sections shall be deemed guilty of a misdemeanor, on
conviction shall be fined not less than one hundred dol
lars or be imprisoned in the county jail not less than
sixty, and not more than six months, and any conduc
tor or other employee of such street ear company
having charge of the same, who shall refuse or neglect
to carry out the provisions of this chapter shall, on
conviction, be fined not less than twenty-five dollars
or be imprisoned in the county jail for not less than
ten days nor more than thirty days for each and every
offense; provided, that nothing herein contained shall
be construed as applying to nurses attending children
of the other race.” Source: Code of 1906.
§ 7787.5—
“1. In all passenger depots, bus stations or termi
nals owned, operated or leased in the State of Mis
sissippi by a railroad company, bus company or any
other common carrier of passengers, the owner or
operator thereof shall cause to be constructed and
28a
Appendix II—Statutes Involved
maintained waiting or reception rooms as will secure
the comfort of the passengers.
“In such depots, bus stations or terminals there shall
be constructed, provided and maintained for the white
intrastate passengers a separate waiting or reception
room, on each entrance to which shall be painted or
shown in bold letters the following:—“White waiting
room, intrastate passengers” ; and in such depot, bus
station or terminal there shall be constructed, pro
vided and maintained a separate waiting or reception
room for the colored intrastate passengers, on each
entrance to which shall be painted or shown in bold
letters the following:—“Colored waiting room, intra
state passengers.”
“2. Any common carrier of passengers for hire
or any railroad or bus company, whether an individual
or corporation, which fails or refuses to comply with
the provisions of this act shall be liable in the penal
sum of one thousand dollars ($1,000.00) per day for
each day of such failure or refusal, to be recovered by
by suit filed in the county in which such depot, bus
station or terminal is situated, by either the attorney
general, the district attorney of the district, or the
county attorney of the county in which said passenger
depot, bus station or terminal is situated.
“In addition to the penalty provided herein, the At
torney General of the State of Mississippi or the dis
trict attorney of the district, or county attorney in the
county in which said depot, bus station or terminal is
situated may file suit in the chancery court of such
county for a mandatory injunction to compel compli
ance with the provisions of this act, and the chancery
29a
Appendix II—Statutes Involved
court of any county wherein the provisions of this act
are not complied with shall have jurisdiction to issue
an injunction to require compliance with this act, and
to hold in contempt of court any railroad company,
bus company or any other common carrier of passen
gers failing to comply with the orders and decrees of
the court directing compliance with this act.
“3. The requirements of this act shall not be ap
plicable to any person, firm or corporation operating
a place of business wherein said person, firm or cor
poration acts only as ticket agent for a bus company
or other common carrier in addition to his regular
business and wherein no passenger waiting room or
reception room is maintained.” Source: Laws of 1956.
30a
APPENDIX III
Opinion o f the United States Court o f Appeals
I n the
UNITED STATES COURT OF APPEALS
F or the F ifth Circuit
In the Matter of:
E lizabeth P orter W yckoff
For a Writ of Habeas Corpus
Before T uttle, Chief Judge, J ones and W isdom, Circuit
Judges.
By the Court:
The petitioner herein seeks an order authorizing her to
appeal from an order entered July 6, 1961, entered by the
United States District Court for the Southern District of
Mississippi, and moves for permission to proceed on her
appeal upon the original papers filed in said District Court.
Petitioner further moves for an immediate hearing of said
appeal.
Petitioner asserts that she was arrested “for entering
the white waiting room at the Continental Bus Terminal,
Jackson, Mississippi, in the company of other interstate
passengers of the Negro race, was sentenced on June 5,
1961, to two months imprisonment in the Hinds County
Jail, suspended, and a fine of $200 for violating Section
2087.5, Mississippi Code of 1942, As amended.”
31a
Appendix III—Opinion of the United States Court
of Appeals
Petitioner asserts that because of the short term of her
detention, and “the clear violation by respondent of the
constitution and laws of the United States, the require
ments that she must first exhaust her state remedies would,
in effect, deny her the right of habeas corpus, in a situa
tion where it was the sole effective remedy with which to
safeguard her statutory and constitutional rights and
liberties.”
It nowhere appears in the petition that the petitioner
has attempted to exhaust remedies available to her in the
courts of the state of Mississippi, or that there is either an
absence of available state remedies or that other circum
stances exist which render such state remedies ineffective
to protect the rights of the prisoner.
The jurisdiction of a federal court is fixed by the Acts
of Congress. 28 U. S. C. A. §2254 provides as follows:
§2254. State custody; remedies in State courts. An
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence
of available State corrective process or the existence
of circumstances rendering such process ineffective
to protect the rights of the prisoner.
An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, with
in the meaning of this section, if he has the right under
the law of the State to raise, by any available pro
cedure, the question presented.”
32a
Dissenting Opinion
It not appearing from anything asserted in the petition
in this case that petitioner sought to appeal her conviction,
which she alleges to have been void and unconstitutional,
or that she is financially unable to make bond pending such
appeal, and it not appearing that petitioner has no right
to test her detention by habeas corpus in the state courts
of Mississippi, there appears to be no sound reason for
this Court to grant petitioner’s motion for expediting the
hearing in this Court. There thus appears to be no sound
reason for granting petitioner’s motion for permission to
appeal upon the original papers, since no allegations are
contained in the petition asserting petitioner’s financial
inability to cause the record to be prepared in accordance
with the rules of this Court.
The motions are, therefore, Denied.
C. A. No. 3133—Samuel Bailey, et al. v. Joe T. Patterson,
Attorney General of the State of Mississippi, Jackson,
Miss., et al.
R ives, Circuit Judge, dissenting:
The complaint seeks to enjoin state-imposed racial seg
regation in public travel facilities in the State of Missis
sippi and the City of Jackson, Mississippi. It seeks relief
against two types of statutes and ordinances: (1) laws
which on their face require the segregation of the races,
and (2) laws which purport to deal with the maintenance
of law and order but which, according to the complaint,
are used to maintain segregation.
The plaintiffs are three adult Negro citizens residing in
Jackson, Mississippi, who sue on behalf of themselves and
33a
Dissenting Opinion
of other Negroes similarly situated and affected by the
statutes and ordinances complained of.1 The defendants
are the Attorney General of Mississippi; the City of Jack-
son, its Mayor, Commissioners, and Chief of Police; Jack-
son Municipal Airport Authority; Continental Southern
Lines, Inc.; Southern Greyhound Lines; Illinois Central
Railroad, Inc.; Jackson City Lines, Inc.; and Cicero Carr
d/b/a Cicero’s Airport Restaurant.
The original complaint and motion for preliminary in
junction were filed on June 9, 1961. A hearing on the
plaintiff’s motion for preliminary injunction was set for
July 10, 1961. That hearing was continued because of the
illness of an Assistant Attorney General of Mississippi.
The hearing was reset for August 7, 1961.
Meanwhile, an Amended Complaint was filed on July
17, 1961. The hearing set for August 7, 1961 was confined
to the argument of motions to dismiss, motions to dissolve
the three-judge court, motions to abstain, motions for
more definite statements, motions to require the plaintiffs
to furnish security for costs, and to the plaintiffs’ in
sistence upon a hearing of their motion for preliminary in
junction. By order entered on that date, August 7, 1961,
the court allowed the Amended Complaint which had been
filed July 17, 1961; allowed the plaintiffs to join as an
additional party defendant the Jackson Municipal Airport
Authority; provided for service upon that party and for
the filing of any motions and answers on its behalf; de-
1 According to the complaint, “the class is composed of Negro
citizens and residents of the State of Mississippi and other states
who utilize the facilities and services of the defendant carriers
located in the City of Jackson, and located in other cities of the
State of Mississippi, and who travel in both intrastate and inter
state commerce.”
34a
Dissenting Opinion
nied the motions to dismiss for lack of indispensable par
ties; denied, on conditions immediately met, the motions
for more definite statements and the motions to require
the plaintiffs to furnish security for costs; and carried
with the case for later disposition the other motions to
dismiss, the motions to dissolve the three-judge court, and
the motions to abstain.
Over the plaintiffs’ objection, their request to be heard
on their motion for preliminary injunction was denied
“in view of the broadening of the issues2 by the Amended
Complaint filed on July 17, 1961, and of the bringing in on
this date of a new party defendant,” and the hearing of the
motion for preliminary injunction was passed until Sep
tember 25, 1961. It was further ordered that on that date
the court would hear the case, both on said motion and on
the prayer for permanent relief. The court stated its in
tention finally to dispose of the case following the hearing
set for September 25, 1961.
On September 25, 1961, over certain objections noted
in the transcript of testimony, the court did proceed with
the hearing of the case both on the motion for preliminary
injunction and on the prayer for permanent relief. The
taking of testimony consumed three days—Monday, Tues
day and Wednesday, September 25, 26, and 27. On Thurs
day, September 28, oral arguments of counsel were heard,
and a further exhibit of the plaintiffs (No. 36) was received.
The defendant Greyhound Corporation was permitted to
2 Paragraph 15 of the complaint was amended so as to make
specific reference to the disorderly conduct and breach of the peace
statutes, Secs. 2087.5, 2087.7 and 2089.5 of the Mississippi Code
Annotated (1942), as among those under color of which the de
fendants pursued a policy, practice, custom and usage of segre
gating Negro and white passengers.
35a
Dissenting Opinion
take the deposition of A. W. Wilson, which was filed on
October 10, 1961. The testimony has now been transcribed
and was filed on October 20,1961, and additional briefs have
been filed by the parties and by the amicus curiae, the
United States of America.
The evidentiary disputes are not very material. The
formal allegations of the complaint, the identity and resi
dence of the plaintiffs, their use of the transportation
facilities in question, the identification of the carrier de
fendants, their use of the busses, cars, terminals, depots,
rest rooms, drinking fountains, etc., were all either admitted
or established by undisputed evidence. Continental South
ern and Greyhound admitted that in their Jackson ter
minals or depots there are signs on the outside doors of one
waiting room which read: “Colored W aiting R oom—I ntra
state P assengers,” and signs on the outside doors of an
other waiting room which read: “W hite W aiting R oom—
I ntrastate P assengers,” and on the sidewalks outside the
respective waiting rooms are signs which read: “W aiting
R oom F or Colored Only—B y Order P olice Dept.” and
“W aiting R oom F or W hite Only—By Order P olice Dept.”
Each bus company claimed that it did not place the signs
on the sidewalks, and that the signs on or over the doors
were placed “pursuant to the provisions of Chapter 258,
Laws of 1956, Regular Session of Mississippi Legislature.”
The bus companies further admitted that similar signs on
or over the doors appear on waiting rooms in all terminals
or depots in the State of Mississippi.
Illinois Central admitted that in its railroad terminal
or depot in Jackson it maintains two separate waiting
rooms, on the sidewalk outside of one of which are signs
reading respectively: “W aiting R oom F or Colored Only,
36a
Dissenting Opinion
By Order P olice Dept.” and “W aiting R oom F or W hite
Only, By Order P olice Dept.,” and that similar signs are
located in the railroad terminal at the bottom of the stairs
leading from the trains.
The Chief of Police of Jackson in his testimony admitted
that the signs on the sidewalk were placed by the Police
Department pursuant to the City segregation ordinance.
Both the two Bus Companies and the Railroad denied
enforcing segregation on busses or cars.
The Jackson City Lines admitted that, pursuant to State
law, it maintains signs on its busses directing that Negroes
and whites sit in separate parts, and that, when those
directions are not observed and a “breach of the peace is
imminent,” it has a policy of stopping the bus and pro
ceeding no further.
The Jackson Municipal Airport Authority admitted
segregation of the rest rooms and drinking fountains in its
waiting rooms. Cicero Carr, the lessee of the restaurant
at the Airport, admitted that he would not serve Negroes
in the main dining room, but would serve them on a back
counter in a room partially used for storage.
The Mayor of the City of Jackson, the chief law enforce
ment official of the City, and the State Attorney General
were questioned on their racial policy with respect to
public transportation facilities. The majority ruled that
such testimony was inadmissible, and I dissented.
The testimony was admitted under Rule 43 (c) of the
Federal Rules of Civil Procedure as a specific offer of evi
dence. The statement of the Mayor is so pertinent it should
be quoted at length. (The ordinance under discussion in
his testimony is the City ordinance requiring the segrega
tion of transportation facilities.)
37a
Dissenting Opinion
“Q. . . . State your understanding of the racial
policy of the City of Jackson with respect to transpor
tation facilities in the City of Jackson. A . . . . It has
been the policy of mine as chief law enforcement officer,
and the members of the city council and the police de
partment and of the people of Jackson, to maintain
what has worked over the last hundred years to bring
happiness and peace and prosperity to everyone with
in our city. That has been done by a separation of
the races, not segregation. "We never refer to it as
segregation. Now, of course, you know and I know7
the State law upon which the City ordinance w7as pat
terned in 1956, with the preamble put in as ours, show
ing why—to maintain peace and order and to keep
down disturbances. Since I have been Mayor I do not
recall one incident where there has been an arrest
under this ordinance or any segregation ordinance.
We have at all times tried to maintain peace and keep
dowm disturbances. That is the policy. Our policy
calls for a great deal of give and take. It is agreeable
to both the white and the colored. . . . So you see that
laws can come and lavTs can go and laws can be
changed, but the policy adopted here is to maintain
happiness and contentment between the races, within
the law, and at the same time giving the benefit of the
great advantage over the years of living together in
peace and quiet.
“Q. Does this ordinance accurately reflect this policy
in effect, which you have just stated?
# # # # #
A. I think so . . . However, as Your Honors have
read it, you read the last paragraph there, it says,
38a
Dissenting Opinion
‘The Council of the said City of Jackson owes the duty
to its citizens, regardless of race, color, creed or sta
tion in life, to maintain good order and to prevent
breaches of the peace, and thereby to promote the
health and general welfare of all its citizens,’ and then
of course we adopted the State ordinance in this.
* # # * #
“Q. . . . Does the body of the ordinance, apart from
the preamble, reflect the policy of the City of Jackson
as you have stated it? A. The policy of the City of
Jackson is certainly adopted in the ordinance which is
based on State law, that is taken from State law and
is based on exactly what I have said, the matter of
separation of the races.”
The State Attorney General testified on direct examination
that it was his duty to enforce all of the laws in the State.
He was extremely evasive on answering whether the State
segregation laws affected his duty as Attorney General;
however, he did say that they were laws of the State, that
they had not been declared unconstitutional, and that he
would enforce them “if conditions arise to such a point that
I thought it was necessary to bring them into effect.” He
said in a concluding statement:
“My sole purpose since the beginning of these insti
gated troubles that were instigated outside our State
and brought to our State, has been the preservation of
peace and order within the borders of the State of
Mississippi. I have undertaken that, along with all
other public officials and law enforcement officers of
this State.”
39a
Dissenting Opinion
Part of such undertakings were meetings prior to and just
after the arrival of the first group of Freedom Riders on
May 24, 1961, attended by himself, the Mayor and Chief of
Police of Jackson. Plans were discussed at these meetings
for dealing with the Freedom Riders. On this point he
testified:
“Q. Did you discuss with the Chief of Police what
steps he was going to take to preserve law and order?
A. Yes, we discussed plans.
“Q. What were those plans? A. The plan was to
do exactly what they did, first of all to keep down
riot and disorder, and these arrests necessarily fol
lowed. They could have been easily avoided had your
clients only wanted them avoided.. . . ”
The Attorney General is not responsible for the enforce
ment of state law in the local courts; he is, nevertheless,
the chief policymaker of state law enforcement.
The plaintiffs offered evidence of the arrests for breach
of the peace of passengers on the defendant carriers. There
is evidence of two incidents on the busses of the Jackson
City Lines. (In fact, the records of the City Lines contain
reports on only two incidents.) Plaintiff Bailey testified
to the arrest of one Charles Patterson, a Negro, for refus
ing to move when a white man got on the bus and sat down
next to him. Witness Doris Grayson testified to the arrest
of herself and three companions who got on a City Lines
bus in the center of the City and sat in a front seat. The
bus was stopped for 10 minutes before a policeman came
along. In neither instance is there any evidence in the
record of an actual or threatened breach of the peace. The
driver in the Grayson incident testified:
40a
Dissenting Opinion
“Q. Were there any white persons on the bus? A.
Yes.
“Q. At the time these four Negroes were on the
bus? A. Yes.
“Q. Was there any disturbance on the bus? A. Not
a bit.
“Q. Was there any disturbance outside the bus? A.
No, not any.”
The record also includes evidence on the arrests of ap
proximately 300 Freedom Eiders in the terminals of the
defendant interstate carriers. Captain Eay of the Jackson
Police Department, who personally made the majority, if
not all, of the arrests, testified as follows with respect to
the activities of the Negroes arrested in the white waiting-
room of the Illinois Central Eailroad:
“Q. What were the Negroes doing that you arrested
in there?
^
A. They came in the terminal.
“Q. What did they do? A. They came in and some
of them had seats and some of them stood.
“Q. What else did they do? A. That is about all.
“Q. Were they armed? A. I never found any of
them armed.
“Q. Were they loud? A. No.
“Q. Did they use any curse words? A. No.
“Q. Did they strike anybody? A. No.
“Q. Did they threaten anybody? A. No.
“Q, Did you arrest them? A. I sure did.
“Q. For what? A. Because their presence provoked
people and caused them to become disturbed, and I
41a
Dissenting Opinion
felt it best to maintain law and order and to order them
to leave there. When they refused to obey my order,
they were arrested.
“Q. Would you explain what you mean by ‘their
presence there provoked people’? A . Well, as I stated
earlier, we had advance notice that they were coming
to Jackson to create an incident similar to what had
happened in other cities, and my duty there was to
maintain law and order, and I felt it best to get the
root of the trouble out of there, and that is when I
ordered them to leave.
“Q. What did they do in violation of law and order?
A. When I ordered them to leave, they just stood
there, as though they hadn’t heard me say a word. I
repeated that order several times, and they refused
to obey, and that is when I arrested them.”
He testified that all the other arrests in the waiting rooms
of the remaining depots were virtually identical.
The testimony with respect to the circumstances sur
rounding the arrests is equally explicit. Chief of Police
Bayfield was questioned on the existence of crowds of
people around any of the terminals when a group of Eiders
arrived and were arrested. He testified that there were
two such occasions, one on the first arrival at the Trailways
terminal on May 24 when he was present, and another
when the first group came to the Illinois Central terminal,
of which he had a report. At the Trailways terminal, he
testified that a number of people were waiting in cars and
others congregated outside the terminal. To his knowledge
none of them were fighting, loud or armed; their attitude,
however, he termed hostile. The ones not in ears were
42a
Dissenting' Opinion
asked to disperse, and they did. At the Illinois Central
terminal, Bayfield had reports that 10 or 15 people were
milling about in the street exhibiting a hostile and disturbed
attitude. They were asked to move, they complied and
were gone by the time the Biders arrived. He then testi
fied:
“Q. Did you receive any other reports from your
police officers of this nature? A. That’s the only two.
“Q. The only two reports you know about! A. The
only two I received where there could have been any
situation like you were just discussing. Now, the others
I don’t recall that there has been any other trouble
around any of the terminals.”
Captain Bay testified that the events within the terminal
were roughly similar for all the arrests: Before the arrival
of a group, people inside the terminal would make re
marks, none of which particularly threatened violence.
If necessary, he would order all those who did not have
tickets or some business in the terminal to leave; they
always complied. When the group arrived, some remarks
were made, people in the terminal would follow them
around, but no acts of violence ever took place. Captain
Bay ventured the opinion that there might have been inci
dents of violence had he not arrested the Biders, but there
is no indication that the situation could not have been
handled by restraining or arresting the offending party.
This is the extent of the evidence in the record on poten
tial breaches of the peace.
This action was brought by three Negro plaintiffs from
the City of Jackson as a class action, on behalf of them
selves and other Negroes similarly situated, under the
43a
Dissenting Opinion
Civil Eights Act, 42 U. S. C. §1983, which creates an equi
table cause of action against
“Every person who, under color of any statute, ordi
nance, regulation, custom, or usage, or any State or
Territory, subjects, or causes to be subjected, any citi
zen of the United States, or other person within the
jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution
and laws. . . ”
The jurisdiction of the three-judge court is invoked pur
suant to 28 U. S. C. §2281, §2284 because the constitu
tionality of state statutes has been attacked. The statutes
attacked are the so-called segregation statutes of the State
of Mississippi which require racial segregation in all com
mon carriers and in waiting room and rest room facilities
used by the carriers, and provide criminal penalties for
carriers and persons refusing to abide by these laws.3
The defendants attacked the jurisdiction of the three-
judge court on the ground that these statutes have never
been enforced and no arrests have been made under their
provisions. Under the recent case of Poe v. Oilman, 1961,
367 U. S. 497, the complete failure to enforce a state law,
coupled with its open and notorious violation, prevents
the federal courts from reaching the constitutionality of
the statute since no case or controversy is presented. If
such were the case here, the three-judge court would not
have jurisdiction. The evidence shows, however, that the
defendant carriers and the Jackson police maintain signs
3 These statutes are: Title 11, Sections 2351, 2351.5, 2351.7, and
Title 28, Sections 7784, 7785, 7786, 7786-01, 7787, 7787.5, Miss.
Code Ann. (1942).
44a
Dissenting Opinion
pursuant to the command of these statutes. This is suffi
cient evidence of enforcement to create a case or contro
versy and maintain the jurisdiction of the three-judge court.
In the alternative, the defendants argue that jurisdiction
over the segregation statutes may not extend to the col
lateral problem of enforcement of segregation by means of
the breach of the peace statutes on the grounds: (1) There
is no authority under §2284, and (2) the court may not
consider issues of fact. The concept of federal jurisdic
tion is by no means this narrow. In Sterling v. Constantin,
1932, 287 U. S. 378, the jurisdiction of the three-judge court,
originally invoked to test a state statute limiting oil pro
duction, extended to the Governor of Oklahoma’s attempt
to institute the same production limitations by fiat under
martial law. The three-judge court made extensive findings
and concluded: “The evidence shows no insurrection nor
riot, in fact, existing at any time in the territory, no closure
of the courts, no failure of civil authorities.” On this basis,
the court held that the invocation of martial laws was
invalid and that the military orders enforcing the produc
tion limitations were a denial of due process. The Supreme
Court upheld the district court and specifically approved
the extensive findings of fact:
“Accordingly, it has been decided in a great variety
of circumstances that when questions of law and fact
are so intermingled as to make it necessary, in order
to pass upon the federal question, the court may, and
should, analyze the facts.” (287 U. S. at p. 398.)
The Court went on to say that the jurisdiction of the three-
judge court
45a
Dissenting Opinion
“ . . . extends to every question involved, whether of
state or federal law, and enables the court to rest
its judgment on the decisions of such of the questions
as in its opinion effectively dispose of the case.” (287
U. S. at pp. 393-94.)
See also, Hum v. Oursler, 1933, 289 U. S. 238; Florida
Limn Growers v. Jacobsen, 1960, 362 U. S. 73; Evers v.
Dwyer, 1958, 358 U. S. 202.
The City of Jackson, its Mayor, Commissioners and Chief
of Police urge that the City cannot be sued in this action.
They rely upon Monroe v. Pape, 1961, 365 U. S. 167, 191
n. 50, and Egan v. City of Aurora, 1961, 365 U. S. 514. The
question is also relevant to relief against the Jackson Air
port Authority.
The direct holding in Monroe v. Pape is that a municipal
corporation is not a “person” within the meaning of section
1983 for the purpose of holding it liable for damages, and
is based upon the finding that Congress rejected an amend
ment which would have made such corporations liable for
money damages in specific cases. 365 U. S. at 188. The
defendants argue that if the City is not a “person” for
purposes of damages, it cannot be a “person” for purposes
of an injunction, and further argue that the Supreme Court
specifically so held in footnote 50 of Monroe v. Pape, supra
at p. 191, when it said:
“In a few cases in which equitable relief has been
sought, a municipality has been named, along with city
officials, as defendant where violations of 42 U. S. C.
§1983 were alleged. See, e.g., Douglas v. City of Jean
ette, 319 TJ. S. 157; Holmes v. City of Atlanta, 350 IT. S.
879. The question dealt with in our opinion was not
46a
Dissenting Opinion
raised in those cases, either by the parties or by the
Court. Since we hold a municipal corporation is not
a ‘person’ within the meaning of §1983, no inference
to the contrary can any longer be drawn from those
cases.”
The question of whether a municipality could be sued under
§1983, for equitable relief, however, was not before the
Court, and I do not believe that the Court intended in a
footnote to overrule prior cases indicating that a municipal
corporation could be so sued. See Douglas v. Jeanette,
supra; Holmes v. City of Atlanta, supra; Mayor and City
Council of Baltimore City v. Dawson, 350 U. S. 877, affirm
ing 220 F. 2d 386 (4 Cir., 1955). This is especially true
when the legislative history upon which the Court relies
is directed solely to the question of damages. We are not
here concerned with the question of tortious action and the
liability of the City Taxpayers for such actions over which
they had little possible control. The question here is one
of prospective equitable relief for the protection of the
plaintiffs’ constitutional rights against not just the tor
tious activity of individuals, but the enforcement of City
ordinances, officially declaring City policy, and officially
recorded on the City Journal. This same issue has been
before the Seventh Circuit Court of Appeals since Monroe
v. Pape, and that Court held :
“None of the reasons which support a city’s immunity
from an action for damages for tortious injuries al
ready inflicted by its officers, agents or servants ap
plies to this case. No reason is apparent why a city
and its officials should not be restrained from pros
pectively violating plaintiffs’ constitutional rights
47a
Dissenting Opinion
pursuant to its own legislative enactment, and an
injunction not be granted as provided in §1983.’
Adams v. City of Park Ridge, 7 Cir., 1961, 293 F. 2d 585,
587. For these reasons, I believe that footnote 50 in Monroe
v. Pape may be construed to say that, whether or not a
municipal corporation is subject to equitable relief under
§1983, no inference from cases indicating that it may is
relevant to the issue of its liability for damages.
More fundamentally, however, the plaintiffs’ right of
action against the City does not depend alone upon §1983.
The rights asserted here are based on the Constitution
which itself creates the cause of action for equitable re
lief and, within the meaning of 28 U. S . C. §1343(3) (the
jurisdictional provision upon which this suit is based),
authorizes this suit. Cf. Bell v. Hood, 1946, 327 U . S . 6<8;
Brewer v. Hoxie School District No. 46, S Cir., 19o6, 238
F. 2d 91, 103; Hart & Wechsler, The Federal Courts And
The Federal System 794097 (1953). Doctrines of immunity
can have no application to suits in equity brought to re
strain invasions of federal constitutional rights. Sterling v.
Constantin, 1932, 287 TJ. S. 378, 393; Ex parte Young,
1908, 209 U. S. 155, 156; Graves v. Texas Company, 1936,
298 U. S. 393, 403-04; Georgia RB v. Redwine, 1952, 342
TJ. S. 299, 305 n. 17.
I would hold that the City of Jackson and the Jackson
Airport Authority are proper parties.
All motions attacking this court’s jurisdiction should
be overruled.
Nor should this court abstain from considering the
merits. The court may not rely on Harrison v. N.A.A.C.P.,
1959, 360 TJ. S. 167, which approves abstention where the
48a
Dissenting Opinion
state law attacked might be construed by the state courts
to avoid the constitutional question, since the segregation
statutes are incapable of a valid construction. No authority
whatsoever may be found for the proposition that, where a
state statute is clearly and unavoidably unconstitutional
on its face, comity requires that state courts be allowed
the privilege of so declaring. Such a rule would be, not
abstention, but abdication of our judicial function. Nor
may this court rely on Douglas v. Jeanette, 1943, 319 U. S.
157, which held that federal courts, as a matter of comity
and equitable discretion, should not interfere with state
criminal proceedings and law enforcement officials when
an adequate remedy is provided in the state proceedings
for the protection and assertion of all constitutional rights.
The primary requirement of Douglas v. Jeanette is that
there be an adequate state remedy; that is not the case
here. An exception to Jeanette has developed in favor of
class actions on behalf of Negroes combating state sup
ported segregation. As stated by the Court of Appeals in
Morrison v. Davies, 5 Cir., 1958, 252 F. 2d 102, 103:
“This is not such a case as required the withholding
of federal court action for reason of comity, since
for the protection of civil rights of the kind asserted
Congress has created a separate and distinct federal
cause of action. 42 U. S. C. A. §1983. Whatever may
be the rule as to other threatened prosecutions, the
Supreme Court in a case presenting an identical factual
issue affirmed the judgment of the trial court in the
Browder case [Browder v. Gayle, D. C. Ala., 142 F.
Supp. 707, aff’d 352 U. S. 903] in which the same con
tention was advanced. To the extent that this is in-
49a
Dissenting Opinion
consistent with Donglas v. City of Jeanette, Pa., 319
U. S. 157, 63 S. Ct. 877, 87 L. Ed. 1324, we must consider
the earlier case modified.”
Actually, this is not so much an exception as a practical
application of the Jeanette requirement of “adequacy.”
For the alternative to this suit is that a great number of
individual Negroes would have to raise and protect their
constitutional rights through the myriad procedure of local
police courts, county courts and state appellate courts,
with little prospect of relief before they reach the United
States Supreme Court. That Court already has a heavy
docket without numerous such cases. Moreover, the proof
of segregation may not be a straightforward proposition.
As in the case here, the true nature of state policy and
practice may become apparent only after proof of a pattern
and practice over an extended period of time. Such a record
can only be prepared in a single suit which finally settles the
issue once and for all. The some 300 citizens arrested in
Jackson since May cannot be expected to provide at their
trials a record similar to the one in this case; and yet,
without it, there may be no way for them to assert and
protect their constitutional rights. All these factors go
to the “adequacy” of the breach of the peace criminal pro
ceedings and weigh against it. Equally important under the
circumstances of this case is that, for some of the reasons
above, Negro citizens in Mississippi will not even attempt
to exercise their constitutional rights because their state
remedies possibly “adequate in theory” are wholly inade
quate in practice.
Another factor bearing on the adequacy of the state
criminal proceedings is that the Freedom Eiders arrested
50a
Dissenting Opinion
in this case were travelers in interstate commerce. For such
travelers to be delayed by arrest and trial, to be required
to return for a de novo county court trial, and perhaps
again for an appeal, is an unreasonable burden on inter
state commerce when their only crime is the assertion of
undisputed statutory and constitutional rights. This bur
den makes the state criminal proceedings wholly inadequate
as an alternative to the present suit.
Any further doubts as to the validity of the distinction
drawn in Morrison v. Davis, or the refutation of Douglas
v. Jeanette, are put to rest by considering the bearing
of the Fourteenth Amendment and 42 U. S. C. A. §1983
on the duty of this court. The Supreme Court had an op
portunity to pass on the basic thrust and purpose of the
Fourteenth Amendment soon after it was adopted. In the
Slaughter-Eouse Cases, 1872, 83 U. S. 36, 71-72, the Court
said:
“We repeat, then, in the light of this recapitulation
of events, almost too recent to be called history, but
which are familiar to us all; and on the most casual
examination of the language of these amendments, no
one can fail to be impressed with the one pervading
purpose found in them all, lying at the foundation of
each, and without which none of them Avould have been
even suggested; we mean the freedom of the slave
race, the security and firm establishment of that free
dom, and the protection of the newly-made freeman and
citizens from the oppressions of those who had formerly
exercised unlimited dominion over him. It is true that
only the fifteenth amendment, in terms, mentions the
negro by speaking of his color and his slavery. But
51a
Dissenting Opinion
it is just as true that each of the other articles was ad
dressed to the grievances of that race, and designed
to remedy them as the fifteenth.
“We do not say that no one else but the negro can
share in this protection . . . But what we do say and
what we wish to be understood is, that in any fair
and just construction of any section or phrase of these
amendments, it is necessary to look to the purpose
which we have said was the pervading spirit of them all,
the evil which they were designed to remedy . . . ”
The last section of the Fourteenth Amendment provides
that “The Congress shall have power to enforce, by ap
propriate legislation, the provisions of this article.” Such
legislation was already on the books when the Slaughter-
House Cases were decided, and the very section under which
the plaintiffs have brought this suit, 42 U. S. C. A. §1983,
may be traced to section 1979 of the Revised Statutes
and section 1 of the Ku Klux Act of April 20, 1871. 17
Stat. 13. This section was recently before the Supreme
Court in Monroe v. Pape, supra, where the Court discussed
in detail its legislative history and purposes. As with the
Fourteenth Amendment, this section was passed by Con
gress to secure the newly-won freedom of the Negro popula
tion in the South; it was intended to deal more specifically,
however, with the securing of these rights in an atmosphere
of violence caused by the unleashing of passions and preju
dices which the mere assertion of these rights engendered
in a portion of the white population. The Congressional
solution was to create a remedy through the federal courts.
The Court states:
52a
Dissenting Opinion
“The debates are long and extensive. It is abundantly
clear that one reason the legislation was passed was
to afford a federal right in federal courts because, by
reason of prejudice, passion, neglect, intolerance or
otherwise, state laws might not be enforced and the
claims of citizens to the enjoyment of rights, privileges,
and immunities guaranteed by the Fourteenth Amend
ment might be denied by the state agencies.” (365 U. S.
at 180.)
Mr. Justice Frankfurter adds to this in his separate opinion
what might be called the substantive right to the exercise
of federal jurisdiction:
“ • • • the theory that the Reconstruction Congress could
not have meant §1979 principally as a ‘jurisdictional’
provision granting access to an original federal forum
in lieu of the slower, more costly, more hazardous
route of federal appeal from fact-finding state courts,
forgets how important providing a federal trial court
was among the several purposes of the Ku Klux Act
. . . Section 1979 does create a ‘substantive’ right to re
lief. But this does not negative the fact that a power
ful impulse behind the creation of this ‘substantive’
right was the purpose that it be available in, and be
shaped through, original federal tribunals.” (365 U. S.
at 251-52.)
Not only is it apparent that the purpose of these provi
sions is to protect the very kind of rights the plaintiffs as
sert, but the legislative history of section 1983 makes clear
that the greater the danger of violence, the more important
it is that the federal courts should accept and exercise
53a
Dissenting Opinion
jurisdiction. Thus, the major portion of the defense of
the City of Jackson and of the Attorney General of Missis
sippi, attempting to justify their actions because of the
danger of violence, actually provides the most powerful
argument for this court to exercise its jurisdiction and
grant a federal remedy to protect the plaintiffs’ rights.
The majority takes the position that the major issue
in this case is the questionable use of the breach of the
peace statutes, and that under the Harrison ease we
should abstain to allow the state courts to construe them.
The plaintiffs’ attack, however, is upon the segregation
statutes, not the breach of the peace statutes, and they
allege that the State is practicing the simplest of all eva
sions—it makes arrests under the breach of the joeace stat
utes for violations of the segregation statutes. If there is
substance to this allegation, it would be a fraud upon the
jurisdiction of this court to abstain and give recognition to
such an evasion. When the constitutionality of a state
statute is attacked, we are under a duty to inquire into
the law as it is actually applied. In Poe v. Ullman, supra,
such an inquiry demonstrated that there was no ease or
controversy. In an earlier case, Nashville, G. & St. L. By.
Co. v. Browning, 1940, 310 IT. S. 362, such an inquiry un
covered a valid administrative amendment to a tax-assess
ing statute and the alleged discrimination was found to be
a valid distinction.4 In Sterling v. Constantin, supra, the
4 “Here, according to petitioner’s own claim, all the organs of
the state are conforming to a practice systematic, unbroken for
more than forty years, and now questioned for the first- time. It
would be a narrow conception of jurisprudence to confine the
notion of ‘laws’ to what is found written on the statute books,
and to disregard the gloss which life has written upon it. Settled
state practice cannot supplant constitutional guarantees, but it
54a
Dissenting Opinion
inquiry uncovered the evasion of the Governor of Okla
homa. As a later Supreme Court case interpreted Sterling
v. Constantin:
“There martial law was employed in support of an order
of the Texas Railroad Commission limiting production
of oil in the East Texas field. The Governor was sought
to be restrained as part of the main objective to en
join ‘the execution of an order made by an administra
tive . . . commission, and as such was indubitably
within §266 [now §2284].” 5
In this case, under the facts shown after a full trial and
the law applicable to these facts, I am unable to find a
bona fide breach of the peace issue. Rather, the facts
clearly show that the arrests are a simple evasion to en
force segregation. This evasion provides no ground for
abstention.6
can establish what is state law. The Equal Protection Clause did
not write an empty formalism into the Constitution. Deeply em
bedded traditional ways of carrying out state policy, such as
those of which petitioner complains, are often tougher and truer
law than the dead words of the written text.” Nashville, C. &
St. L. Ry. Co. v. Browning, 1940, 310 U.S. 362, 369.
5 Phillips v. United States, 1941, 312 U.S. 246, 253.
6 See also Evers v. Dwyer, 1958, 358 U.S. 202, where the Court
ordered a three-judge court, whose jurisdiction was invoked to
enjoin Tennessee transportation statutes requiring segregation,
to hear that and “any other method of state-enforced segregation
on Memphis transportation facilities.”
The Court has continually struck down state-enforced schemes
of segregation, whether they were done directly or “ingeniously
or ingenuously.” Cooper v. Aaron, 1958, 358 U.S. 1, 17; Smith
v. Texas, 1940, 311 U.S. 128, 132; Lane v. Wilson, 1939, 307 U.S.
268, 275; see Bush v. Orleans Parish School Board, E.D. La., 194
F.Supp. 182, aff’d sub nom. Gremillion v. United States, 30 L.W.
55a
Dissenting Opinion
The statutes and ordinances which on their face require
the segregation of the races in any transportation facility
should be declared unconstitutional, null, and void, Brown
v. Board of Education, 1954, 347 IT. S. 483; Browder v.
Gayle, M. D. Ala., 142 F. Supp. 707, aff’d 352 IT. S. 903
(1954); Baldwin v. Morgan, 5 Cir., 1958, 251 F. 2d 780;
Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 F. 2d
531.
It should be declared impermissible to use laws which
purport to deal with the maintenance of law and order, or
any other laws, to maintain segregation of the races in
any transportation facility. To that end, it should be de
clared that no passenger or intended passenger is subject
to arrest for disorderly conduct or breach of the peace
unless the passenger is himself disorderly or does some
thing more than to occupy some facility or place intended
for use by persons of another race and to refuse to remove
himself from such place or facility. To arrest a passenger
under such circumstances is state-enforced, segregation and
therefore unconstitutional.
The defendants argue strongly on this last point that
the State has merely been asserting its rights under the
police power to maintain law and order. The evidence
clearly shows, however, that none of the passengers ar
rested was ever himself disorderly. This poses the ques
tion of whether a passenger, whose only crime is the exer
cise of an undisputed constitutional right, may be arrested
because this exercise provokes others to threaten or aetu-
3120 (Sup. Ct. 1961). It is not uncommon for the states to attempt
to enforce segregation through general police power statutes. Boyn
ton v. Virginia, 1960, 364 U.S. 454 (trespass) ; Boman v. Birming
ham Transit Co., 5 Cir., 1960, 280 F.2d 531 (breach of the peace).
56a
Dissenting Opinion
ally commit disorderly acts. That this is the substance of
the defendants’ position is clearly inferred from the facts
to which they themselves testified—the signs on the side
walk outside the waiting rooms pursuant to the segregation
ordinance, the arrest of all those who attempted to “crack
the laws” of Mississippi (to use the words of the State
Attorney General), and the complete lack of disorderly
conduct on the passenger’s part at the time of arrest.
This inference is made explicit, however, by the testimony
of the Mayor, who states that, by definition, anyone who
attempts to test the “separation of the races” creates a
breach of the peace and provokes disorder.
This issue must be met head on for the evidence shows
that on at least two occasions there was a danger of riots
and disorder. Although past disorder does not concern us
as far as a prospective injunction is concerned, there is a
strong possibility that a similar situation would arise after
an injunction did go into effect.
The issue is decided by again returning to the basis of
this suit, the Fourteenth Amendment and section 1983.
The Amendment was adopted and this section passed soon
after the completion of the Civil War. A glance at the
legislative history of section 1983, cited in Monroe v. Pape,
supra, demonstrates that Congress had before it extensive
evidence of the violence caused in the South by the newly-
won Negro rights. Yet, nowhere, either in the Amendment
or in section 1983, can there be found an intimation that
either the danger or the existence of such violence is
grounds for the revocation of constitutional rights granted
primarily to Negroes. Rather, the answer of Congress
was to provide federal jurisdiction and a federal remedy
for their protection. From this it can only be concluded
57a
Dissenting Opinion
that the provocation of violence in others is no defense to
the denial of these plaintiffs’ constitutional rights. If it
were, the defendants and this court know that this ease
would spell the postponement of full enjoyment of constitu
tional rights by Negroes in the Deep South for many years
to come. The Supreme Court faced and decided this issue
in Cooper v. Aaron, 1958, 358 U. S. 1, 16, when it said:
“The constitutional rights of respondents are not
to be sacrificed or yielded to the violence and disorder
which have followed upon the actions of the Governor
and Legislature. As this Court said some 41 years ago
in a unanimous opinion in a ease involving another
aspect of racial segregation: ‘It is urged that this
proposed segregation will promote the public peace
by preventing race conflicts. Desirable as this is, and
important as is the preservation of the public peace,
this aim cannot be accomplished by laws or ordinances
which deny rights created or protected by the Federal
Constitution.’ Buchanan v. Warley, 245 U. S. 60, 81.
Thus law and order are not here to be preserved by
depriving the Negro children of their constitutional
rights.”
See also, Sterling v. Constantin, 1932, 287 U. S. 378; Sel
lers v. Johnson, 8 Cir., 1947, 163 F. 2d S77; Rockwell v.
Morris, 1961, 211 N. Y. S. 2d 25.
A police officer would be justified in requiring a person
to move from a transportation facility because of a sudden,
unexpected, and extreme danger of bloodshed which could
not be otherwise avoided. There is no evidence in this rec
ord, however, of such a situation having arisen. In the case
of the incidents on the Jackson City Lines buses, there is
58a
Dissenting Opinion
not even the intimation of potential disorder. Except for
the two Freedom Rider arrivals where crowds gathered
outside the transportation terminals, there is no evidence
of an actual breach of the peace or a potential which a
minimum of police officers could not have readily handled
by arresting the individual actually creating the disorder.
In the case where the crowd surrounded the Illinois Cen
tral, it was easily dispersed before the Riders even ar
rived, putting it in the same situation as all the others.
On May 24, the day of the first Rider group, although the
crowd was sizable, and their attitude hostile, they never
created an actual disturbance or reached proportions be
yond the ability of the police to handle, even had the Riders
been allowed to remain in the terminal. It should, at this
point, be noted that the Mayor of Jackson had been notified
by the Attorney General of the United States before the
Riders’ arrival that, if, in the Mayor’s opinion, the situa
tion could not be handled by local authorities, he stood
ready to send in Federal Marshals to aid the enforcement
of order as had been done in Montgomery, Alabama. And
I think it can be said with assurance that, if at any future
time the law enforcement officials of Mississippi find that
they cannot themselves handle the provocation of violence
caused by the Negroes’ exercise of their constitutional
rights, the Attorney General of the United States would
stand ready to send in Federal Marshals or any stronger
force necessary to enforce order. There is no necessity to
forego the exercise of rights guaranteed by the Constitution
and laws of the United States in order to prevent violence
on the part of persons opposed to the exercise of such
rights. Any such surrender to mob rule would tremendously
encourage mob spirit. We must continue to be ruled not
59a
Dissenting Opinion
by the mob, but by the Constitution and laws of our Coun
try.
It is my opinion that a permanent injunction should issue
against the City of Jackson, its Mayor, Commissioners and
Chief of Police, and the Jackson Municipal Airport Au
thority to restrain them from acting contrary to the fore
going declarations and to protect to the best of their ability
the right of any passenger or intended passenger to exer
cise his constitutional rights on public transportation facili
ties.
This permanent injunction should extend to the State
Attorney General. While he is not responsible for the en
forcement of State laws through the local courts, and has
prosecuted none of the arrests found in the record, he par
took in meetings both before and after the arrival of the
Freedom Riders on May 24, which determined the manner
in which the situation would be, and thereafter was,
handled. As the State official primarily charged with the
duty to enforce State law, he must be held responsible for
the plans made at these meetings and the way in which
they have been carried out.
A permanent injunction should issue against Cicero Carr
requiring him to serve without discrimination at the Air
port Restaurant all members of the public who use and
frequent the Jackson Municipal Airport and request ser
vice.
The carriers, Continental Southern Lines, Inc., Southern
Greyhound Lines, Illinois Central Railroad, Inc., and Jack-
son City Lines, Inc., have stated that they are acting under
apparent compulsion of City ordinance or State statute
in any maintenance of segregation of the races in their
transportation facilities of which they may be guilty; and,
60a
Dissenting Opinion
that, promptly upon this court’s declaration that such stat
utes and ordinances are unconstitutional, they will remove
all signs indicating that any place or facility is intended
for the use of persons of any particular race and will not
further enforce or have any part in enforcing segregation
of the races in any transportation facility. A simple de
claratory judgment is therefore all that seems necessary
as to said carrier defendants. This court should retain
jurisdiction, however, so that further orders and judgments
could be entered if it should thereafter be necessary or
advisable.
In their prayer for relief, the plaintiffs ask that the en
forcement of the segregation statutes and any other stat
utes used to enforce segregation be enjoined. They include
in this prayer not only the restraining of future enforce
ment, but also the continued enforcement of these statutes
against all of those arrested after the filing of this suit.
According to the evidence, this includes some 190 persons.
The power of the court to grant this request is supported
fully by law. In Ex parte Young, 1908, 209 U. S. 123, the
Supreme Court reaffirmed the principle that a court of
equity could enjoin criminal proceedings commenced after
the filing of a suit in federal court to enforce the same
right. The Court stated:
“It is further objected . . . that a court of equity
has no jurisdiction to enjoin criminal proceedings, by
indictment or otherwise, under the state law. This,
as a general rule, is true. But there are exceptions.
When such indictment or proceeding is brought to en
force an alleged unconstitutional statute, which is the
subject matter of inquiry in a suit already pending in
61a
Dissenting Opinion
a Federal court, the latter court having first obtained
jurisdiction over the subject matter, has the right, in
both civil and criminal cases, to hold and maintain such
jurisdiction, to the exclusion of all other courts, until
its duty is fully performed . . . Where one commences
a criminal proceeding who is already party to a suit
then pending in a court of equity, if the criminal
proceedings are brought to enforce the same right that
is in issue before that court, the latter may enjoin
such criminal proceedings,”
209 U. 8. at 161-162. See also, In re Sawyer, 1888, 124
U. S. 200, 211; Tr-uax v. Raich, 1915, 239 U. S. 33, afPg
219 Fed. 273 (D. Ariz., 1915). In terms of the anti-injunc
tion statute, 28 U. S. C. §2283, it is a power “in aid of
our jurisdiction” to prevent state courts from interfering
with the determination of issues properly before the fed
eral court. The propriety of granting such a request, how
ever, is discretionary, and only the strongest equities will
support such outright interference with state proceedings
already commenced. I am of the opinion that such equities
exist in this case.
The plaintiffs have had a motion for preliminary injunc
tion pending since the filing of the original complaint on
June 9, 1961. Although the plaintiffs filed an amended
complaint on July 17 to make more explicit their attack
upon the breach of peace arrests, the original complaint is
broadly enough framed to include them. When a motion
for preliminary injunction has been made, a three-judge
court is directed by statute to give an expeditious hearing
and decision. 23 U. S. C. §2284(4) provides, “the appli
cation shall be given precedence and assigned for hearing
62a
Dissenting Opinion
at the earliest practicable day.” 28 U. S. C. §1253 pro
vides that the granting or denial of this motion may be
appealed directly to the Supreme Court; the appeal lies
as a matter of right. R. C. A. v. United States, N. D. III.,
1950, 95 F. Supp. 660, aff’d, 341 U. S. 412 (1951). Thus,
not only were the plaintiffs entitled to an early hearing
and decision, but, in my opinion, they were entitled to a
preliminary injunction. As Mr. Justice Brandeis wrote in
Union Tool Co. v. Wilson, 1922, 259 U. S. 107, 112: “Legal
discretion . . . does not extend to refusal to apply well-
settled principles of law to a conceded state of facts.” The
essential facts in this case are undisputed, the law to be
applied is clear, irreparable injury is established by evi
dence of a clear and continued deprivation of constitutional
rights. The defendants’ argument that such an injunction
would have changed the status quo and therefore should
not have been granted was before the Fourth Circuit Court
of Appeals in a very similar case involving segregation of
transportation facilities, and was decided adversely to the
defendants. Henry v. Greenville Airport Commission, 4
Cir., 1960, 284 F. 2d 631. The defendants should not be
allowed to rely upon their own continued unconstitutional
behaviour for the purposes of defeating a motion for pre
liminary injunction. I would follow the ruling in the Henry
case. See also Clemons v. Board of Education, 6 Cir., 1956,
228 F. 2d 853, 357; Board of Supervisors v. Wilson, 340
U. S. 909, affirming 92 F. Supp. 986 (E. D. La., 1950)
(preliminary injunction granting admission to L. S. U.).
Had such an injunction issued, arrests and prosecution of
of those arrested would have been terminated, starting at
the very latest with the date of the first hearing, July 10,
1961.
63a
Dissenting Opinion
The continued refusal to rule on this motion, although
it has been pending since the 9th of June, is in violation
of this court’s duty under the law, and the refusal should
therefore be construed as a de facto denial. The reason
for continuing the first hearing until August 8, 1961, due
to the sickness of an Assistant Mississippi Attorney Gen
eral, may have been warranted with respect to relief
against his superior, but the City was present and, as sub
sequent events have shown, it was both willing and able
to carry on a vigorous defense in its own behalf.
Thus, because of the undisputed facts, the clear violation
of the plaintiffs’ rights, and the unreasonable delay in
ruling on the preliminary injunction, all prosecutions of
passengers or intended passengers who were arrested for
breach of the peace after the filing of the original com
plaint on June 9,1961, but who, as the evidence in this case
shows, were not themselves disorderly, should be enjoined.
Since this dissenting opinion was written, I have had
the opportunity to read the memorandum opinion of Judge
Frank M. Johnson, Jr., in Lewis, et al. v. The Greyhound
Corporation, et al, M. D. Ala., C. A. 1724-N, rn/s, filed
November 1,1961, and find myself in agreement with nearly
all of the views expressed by Judge Johnson in that opinion.
I respectfully dissent.
64a
Order Dated November 17, 1961
I n the
UNITED STATES DISTRICT COURT
F ob the Southern District of Mississippi
J ackson Division
Civil Action No. 3133
Samuel Bailey, et al.,
J oe T. P atterson, Attorney General
of the State of Mississippi, et al.
Pursuant to the opinion of the Court filed herein on
November 17, 1961, it is now ordered by the Court that
jurisdiction of this action is retained, but that all further
proceedings herein be stayed for a reasonable length of
time for the parties to repair to the State Court in which
such issues may be now pending, or in any court of the
state where any of the parties hereto may elect to institute
an action for the adjudication of the issues.
Ordered, this the 17th day of November, 1961.
Sidney C. Mize
United States District Judge
Claude F. Clayton
United States District Judge
65a
Order Dated Decem ber 2 , 1961
I n the
UNITED STATES DISTRICT COURT
F oe the Southern District of Mississippi
J ackson D ivision
Civil Action No. 3133
Samuel Bailey, et al.,
Plaintiffs,
J oe T. P atterson, Attorney General
of the State of Mississippi, et al.,
Defendants.
Plaintiffs have filed herein a motion for injunction to
gether with accompanying affidavit pending appeal under
Rule 62(c) F. R. C. P., and the defendant, Joe T. Patter
son, has filed as a counter affidavit the affidavit of Jack
Travis, one of the attorneys for the City of Jackson. This
motion has been considered by each member of this Court,
and Judges Mize and Clayton, constituting a majority of the
Court, are of the opinion that the opinion and order of this
Court filed herein on November 17, 1961, did not, as re
quired under Rule 62(c), F. R. C. P., either grant, dissolve
or deny the issuance of an injunction as required under
Rule 62(c), F. R. C. P. Judges Mize and Clayton are of
the opinion that all further proceedings in this cause,
including this motion, should be stayed for a reasonable
length of time to permit plaintiffs to proceed in a State
Court as authorized by the order of November 17, 1961.
66a
Order Dated December 2, 1961
It is therefore o r d e r e d , a d j u d g e d and d e c r e e d by the
Court that pursuant to the opinion and order of this Court
filed herein on November 17, 1961, that said action to
gether with said motion for injunction pending appeal, be
and the same are hereby retained on the docket of this
Court, but that all further proceedings therein and thereon
be stayed for a reasonable length of time to permit the
parties to repair to the State Courts in which issues may
now be pending, or to any court of the State of Mississippi
which any of the parties hereto may elect to institute an ac
tion for the adjudication of the issues.
Judge Hives dissents from this holding and will ex
press his views herein below.
This, 28th day of November, 1961.
S idney C. Mize
United States District Judge
Claude F. Clayton
United States District Judge
(Handwritten)
I think that the judgment of November 17, 1961, is ap
pealable. In my view it certainly has the effect of denying
the plaintiffs’ long pending motion for a preliminary in
junction. While I dissented and would have granted both
a preliminary and a final injunction, I am at this stage
bound by the judgment of November 17, 1961, concurred in
by the majority, and I now vote to deny an injunction
pending appeal. I respectfully dissent from the action
of the majority purportedly refusing either to grant or
to deny an injunction pending appeal.
This 2nd day of December, 1961.
R ichard T. R ives
United States Circuit Judge
67a
City O rd inance R equ iring C arrie r to
M aintain Separate Facilities
An Ordinance R equiring Common Carriers of P ersons to
Maintain in the City of J ackson Separate W aiting Room
and R est R oom A ccommodations and F acilities for the
W hite and Colored R aces ; Making I t U nlawful for A ny
P erson of the W hite R ace to U se Such A ccommodations
and F acilities Designated and Set Apart for P ersons of
the Colored R aces ; Making I t U nlawful for A ny P erson
of the Colored R aces to U se Such A ccommodations and
F acilities Designated and Set Apart for P ersons of the
W hite Race; P rescribing P enalty for V iolation H ereof;
and Making T his Ordinance I mmediately E ffective.
W hereas, the citizens of the City of Jackson, Mississippi,
have been accustomed for many generations to separation
of the White race from the Colored races in the use of
waiting room and rest room facilities and accommodations
provided by common carriers of persons; and
W hereas, a sudden interm ingling of the races necessarily
involved in the common use of such w aiting room and rest
room accommodations and facilities would likely result in
disturbances, breaches of the peace, disorder and con
fusion; and
W hereas, the Council of the said City of Jackson owes
the duty to its citizens, regardless of race, color, creed or
station in life, to maintain good order and to prevent
breaches of the peace, and thereby to promote the health
and general welfare of all its citizens, and it has power
to adopt and enforce ordinances to accomplish such pur
poses ;
68a
City Ordinance Requiring Carriers to
Maintain Separate Facilities
Now, T herefore, B e I t Ordained by the Council of the
City of J ackson, Mississippi:
Section 1 . That all common carriers of persons which
have heretofore provided and maintained separate wait
ing rooms, rest rooms and like accommodations and facili
ties be and they are hereby required to continue to main
tain similar but separate waiting rooms, rest rooms and
like accommodations and facilities for the White and for
the Colored races, and to appropriately designate one of
the said waiting rooms, rest rooms accommodations and
facilities for use by persons of the White race only, and
the other for use of persons of the Colored races only.
Section 2. That it shall be unlawful for any person of
the White race to use as such the said accommodations so
thus provided for use by persons of the Colored races only.
Section 3. That it shall be unlawful for any person of
the Colored races to use as such the said accommodations
so thus provided for use by persons of the ’White race only.
Section 4. That any person convicted of a violation of
this ordinance shall be guilty of a misdemeanor and shall be
punished by a fine of not less than twenty-five dollars
($25.00), nor more than one-hundred dollars ($100.00), or
by imprisonment in the City Jail not to exceed thirty (30)
days, or by both such fine and imprisonment.
Section 5. It having been found by the Council of the
said City of Jackson, Mississippi, that in the preservation
of good order and peace of the municipality, and in the
promotion of the general welfare of its citizens, it is neces
sary for this ordinance to become immediately effective,
and the same having been adopted by the unamimous vote
69a
City Ordinance Requiring Carriers to
Maintain Separate Facilities
of all the members of the governing body of said city, it is
further ordained that this ordinance shall be and become
effective immediately.
Approved:
Allen C. Thompson, Mayor
C. W. Alexander, Commissioner
D. L. Luckey, Commissioner
Attest :
Mrs. J. R. Skinner
City Clerk
(Seat.)
I, Mrs. J. R. Skinner, the duly appointed, qualified and
acting City Clerk and lawful custodian of the minutes of
the Council and seal of said city, certify that the forego
ing is a true and exact copy of an Ordinance passed by
the City Council at its regular meeting on January 12,
1956, and recorded in Minute Book “FF”, page 149.
W itness my signature and official seal of office, this
12th day of January, 1956.
(Seal)
Mrs. J. R. Skinner,
City Clerk
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