"The application of [Plessy v. Ferguson Decision] cannot be justified as a proper execution of the state police power."- Judge Rives
Browder v. Gayle
Courtesy of Rosa Parks Facts.
Plaintiffs: Browder, McDonald, Smith, Colvin
Defendants: Mayor Gayle, Commissioners Sellers and Parks, Police Chief Ruppenthal, Bus Drivers Blake and Cleere
Purpose: Asking the court to declare the segregation laws of Alabama unconstitutional
Result: The federal court recognized the right to equal treatment. The segregation of public transportion was abolished.
original court case below
Defendants: Mayor Gayle, Commissioners Sellers and Parks, Police Chief Ruppenthal, Bus Drivers Blake and Cleere
Purpose: Asking the court to declare the segregation laws of Alabama unconstitutional
Result: The federal court recognized the right to equal treatment. The segregation of public transportion was abolished.
original court case below
browder_v._gayle_court_case.rtf | |
File Size: | 92 kb |
File Type: | rtf |
Primary Documents:
Browder v. Gayle (1956)
June 5, 1956
OPINION BY: RIVES
Statement of the Case
The purpose of this action is to test the constitutionality of
both the statutes of the State of Alabama n1 and the ordinances of the City of
Montgomery n2 which require the segregation of the white and colored races on
the motor buses of the Montgomery City Lines, Inc., a common carrier of
passengers in said City and its police
jurisdiction.
[Footnote]
n1. Title 48, § 301(31a, b, c), Code of
Alabama of 1940, as amended, which provide:
' § 301(31a). Separate accommodations for white and colored
races. -- All passenger stations in this state operated by any motor
transportation company shall have separate waiting rooms or space and separate
ticket windows for the white and colored races, but such accommodations for the
races shall be equal. All motor transportation companies or operators of
vehicles carrying passengers for hire in this state, whether intrastate or
interstate passengers, shall at all times provide equal but separate
accommodations on each vehicle for the white and colored races. The conductor
or agent of the motor transportation company in charge of any vehicle is
authorized and required to assign each passenger to the division of the vehicle
designated for the race to which the passenger belongs; and, if the passenger
refuses to occupy the division to which he is assigned, the conductor or agent
may refuse to carry the passenger on the vehicle; and, for such refusal,
neither the conductor or agent of the motor transportation company nor the
motor transportation company shall be liable in damages. Any motor
transportation company or person violating the provisions of this section shall
be guilty of a misdemeanor and, upon conviction, shall be fined not more than
five hundred dollars for each offense; and each day's violation of this section
shall constitute a separate offense.
'The provisions of this section shall be administered and
enforced by the Alabama public service commission in the manner in which
provisions of the Alabama Motor Carrier Act of 1939 are administered and
enforced. (1945, p. 731, appvd. July 6,
1945.)
' § 301(31b). Operators of passenger stations and carriers
authorized to segregate white and colored races. -- All passenger stations in
this state operated by or for the use of any motor transportation company shall
be authorized to provide separate waiting rooms, facilities, or space, or
separate ticket windows, for the white and colored races but such
accommodations for the races shall be equal. All motor transportation companies
and operators of vehicles, carrying passengers for hire in this states, whether
intrastate of interstate passengers, are authorized and empowered to provide
separate accommodations on each vehicle for the white and colored races. Any
officer or agent of such motor transportation company or operator, in charge of
any vehicle, is authorized to assign or reassign each passenger or person to a
division, section or seat on the vehicle designated by such company or
operator, or by such officer or agent, for the race to which the passenger or
person belongs; and if the passenger or person refuses to occupy the division,
section or seat to which he is so assigned, such officer or agent may refuse
further to carry the passenger on the vehicle. For such refusal neither the
officer nor agent, nor the motor transportation company, nor operator, shall be
liable in damages. (1947, p. 40, § 1, appvd. July 18,
1947.)
'301(31c). Failure to comply with rules and regulations as to
segregation of white and colored races. -- It shall be unlawful for any person
willfully to refuse or fail to comply with any reasonable rule, regulation, or
directive of any operator of a passenger station in this state operated by or
for the use of any such motor transportation company, or of any authorized
officer or agent of such operator, providing separate waiting rooms,
facilities, or space, or separate ticket windows, for white and colored races;
or willfully to refuse or fail to comply with any reasonable assignment or
reassignment by any officer or agent in charge of any vehicle of any such motor
transportation company or of any operator of vehicles carrying passengers for
hire, of any passenger or person to a division, section, or seat on such
vehicle designated by such officer or agent for the race to which such
passenger or person belongs; any person so refusing or failing to comply with
any such reasonable rule, regulation, or assignment, as aforesaid, shall be
guilty of a misdemeanor and upon conviction shall be fined not more than $
500.00 for such offense. (1947, p. 40, § 2, appvd. July 18, 1947.)'
n2. Section 10, Chapter 6, Code of the City of Montgomery,
1952, which provides:
'Every person operating a bus line in the city shall provide
equal but separate accommodations for white people and negroes on his buses, by
requiring the employees in charge thereof to assign passengers seats on the
vehicles under their charge in such manner as to separate the white people from
the negroes, where there are both white and negroes on the same car; provided,
however, that negro nurses having in charge white children or sick or infirm
white persons, may be assigned seats among white
people.
'Nothing in this section shall be construed as prohibiting the
operators of such bus lines from separating the races by means of separate
vehicles if they see fit.'
Section 11 of Chapter 6, Montgomery City Code of 1952, further
provides:
'Any employee in charge of a bus operated in the city shall
have the powers of a police officer of the city while in actual charge of any
bus, for the purpose of carrying out the provisions of the preceding section,
and it shall be unlawful for any passenger to refuse or fail to take a seat
among those assigned to the race to which he belongs, at the request of any
such employee in charge, if there is such a seat vacant.'
[End
Footnote]
The plaintiffs are four Negro citizens who bring this action
for themselves and on behalf of all other Negroes similarly situated. n3 The
defendants are the members of the Board of Commissioners and the Chief of
Police of the City of Montgomery, the members of the Alabama Public Service
Commission, The Montgomery City Lines, Inc., and two of its employee
drivers.
[Footnote]
n3. Rule 23(a), Fed.Rules Civ.Proc. 28
U.S.C.A.
[End Footnote]
Each of the four named plaintiffs has
either been required by a bus driver or by the police to comply with said
segregation laws or has been arrested and fined for her refusal so to do. The
plaintiffs, along with most other Negro citizens of the City of Montgomery,
have since December 5, 1955, and up to the present time, refrained from making
use of the transportation facilities provided by Montgomery City Lines, Inc.
Plaintiffs and other Negroes desire and intend to resume the use of said buses
if and when they can do so on a non-segregated basis without fear of
arrest.
The members of the Board of Commissioners and the Chief of
Police of the City of Montgomery in their answers to the complaint admit 'that
they seek to enforce the statutes of the State of Alabama and the ordinances of
the City of Montgomery, Alabama', and further aver that 'segregation of
privately owned buses within cities within the State of Alabama is in
accordance with the laws of the State of Alabama and the City of
Montgomery.'
The members of the Alabama Public Service Commission deny that
they, in their official capacities as such members have any jurisdiction over,
or have issued any orders relating to the separation of the races on buses
operated wholly within the City of Montgomery and its police jurisdiction. On
information and belief they allege that the members of the Board of
Commissioners and the Chief of Police of said City 'have sought to enforce by
legal means constitutional and valid statutes and ordinances providing for
separate but equal seating arrangements on buses operated in the City of
Montgomery, Alabama, and its police
jurisdiction'.
The Montgomery City Lines, Inc., admits that it has operated,
and pursuant to orders of a State Court, continues to operate 'its buses as
required by the Statutes and Ordinances set out in the Complaint requiring it
to provide equal but separate accommodations for the white and colored races'.
Without dispute the evidence is to the effect that, other than being separate,
such accommodations are equal.
The defendants, Blake and Cleere, admit they are employees of
the Montgomery City Lines and drivers of its buses, that as such they have
acted pursuant to orders of said Company which 'has operated its buses on the
basis of racial segregation as required by said statutes and ordinances'. They
deny that as drivers of said buses they are exercising the powers of police
officers in the enforcement of said statutes and
ordinances.
The complaint prays for the convening of a three-judge district
court as provided by Title 28 of the United States Code, § 2284; for a
declaratory judgment as to whether the enforcement of said statutes and
ordinances abridges the privileges and immunities of plaintiffs as citizens of
the United States, or deprives them of liberty without due process of law, or
denies to them the equal protection of the laws, as secured by the Fourteenth
Amendment to the Constitution of the United States, n4 and the rights and
privileges secured to them by Title 42, United States Code, §§ 1981 and 1983.
n5 The complaint further prays that the defendants be both temporarily and
permanently enjoined from enforcing the statutes and ordinances claimed to be
unconstitutional and in conflict with said Federal
statutes.
[Footnote]
n4. Fourteenth Amendment, §
1:
'All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.'
n5. ' § 1981. Equal rights under the
law
'All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no
other.'
' § 1983. Civil action for deprivation of
rights
'Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress.'
[End Footnote]
Federal Jurisdiction
Federal jurisdiction is invoked under Title 28, United States
Code, §§ 1331 and 1343(3), n6 and under Title 42, United States Code, §§ 1981
and 1983, footnote 5, supra. We think that the validity of both the State
statutes and the City ordinances is in question, but if only the City
ordinances are involved, Federal jurisdiction would still exist because the
Constitution and statutes of Alabama authorize the adoption of City ordinances
'not inconsistent with the laws of the state,' n7 and because the
constitutional phrase 'equal protection of the laws' refers to City ordinances
adopted under State authority as well as to State statutes.
n8
[Footnote]
n6. ' § 1331. Federal question; amount in
controversy
'The district courts shall have original jurisdiction of all
civil actions wherein the matter in controversy exceeds the sum or value of $
3,000, exclusive of interest and costs, and arises under the Constitution, laws
or treaties of the United States.'
' § 1343. Civil rights
'The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any
person:
'(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of all persons within the
jurisdiction of the United States.'
n7. Constitution of Alabama of 1901, § 89; Alabama Code of
1940, Title 37, § 455.
n8. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149;
Cf. 42 U.S.C.A. § 1983; Carlson v. People of State of California, 310 U.S. 106,
60 S.Ct. 746, 84 L.Ed. 1104; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct.
666, 82 L.Ed. 949; North American Cold Storage Co. v. City of Chicago, 211 U.S.
306, 29 S.Ct. 101, 53 L.Ed. 195; City of El Paso v. Texas Cities Gas Co., 5
Cir., 100 F.2d 501.
[End Footnote]
Jurisdiction of Three Judge District
Court
A three judge district court is required for the granting of
'An interlocutory or permanent injunction restraining the enforcement,
operation or execution of any State statute by restraining the action of any
officer of such State'. 28 U.S.C.A. § 2281. According to the complaint and the
answers, the separation of the races on the buses is required both by State
statutes and by City ordinances. Admittedly, therefore, State statutes are
involved. The defendants claim, however, that the statutes and ordinances are
being enforced by municipal officers only, and not by 'any officer of such
State'. 28 U.S.C.A. § 2281, supra.
If the members of the Alabama Public Service Commission are
proper parties defendant, a matter to be hereinafter discussed, then it must be
conceded that the objection to the jurisdiction of the three judge district
court fails. Irrespective of the answer to that question, however, we think
that the three judge district court has
jurisdiction.
The State statutes, footnote 1, supra, vest in the defendant
bus drivers the authority to enforce, and, notwithstanding their insistence to
the contrary, we think that when so engaged the bus drivers clearly are
officers of the State.
The City Commissioners have important duties to perform in
connection with the enforcement, operation, and execution of State statutes.
Under Alabama law, a municipal corporation 'is essentially a public agency, a
local unit of government, invested with a portion of the sovereign power of the
state, for the benefit of its inhabitants.' Cooper v. Town of Valley Head, 212
Ala. 125, 101 So. 874, 875. The defendant Chief of Police has authority to make
arrests for violations of State statutes, 1940 Code of Alabama, Title 15, §
152. The City Recorder in criminal cases has the power of an exofficio justice
of the peace. 1940 Code of Alabama, Title 37, § 585. All of the City officials
admit in their answers that they are enforcing the State statutes. An official,
though localized by his geographic activities and the mode of his selection,
is performing a State function when he enforces a statute which 'embodies a
policy of state-wide concern'. n9
[Footnote]
n9. Spielman Motor Sales Co. v. Dodge, 295 U.S.
89, 55 S.Ct. 678, 680, 79 L.Ed. 1322; Rorick v. Board of Commissioners, 307
U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States,
323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274; Watch Tower Bible & Tract
Society v. City of Bristol, D.C.Conn., 24 F.Supp. 57, affirmed 305 U.S. 572, 59
S.Ct. 246, 83 L.Ed. 361; Suncrest Lumber Co. v. North Carolina Park Commission,
4 Cir., 29 F.2d 823.
[End Footnote]
Very clearly, the three judge district court has jurisdiction.
n10
[Footnote]
n10. If, however, the proceedings were not such
as to require the presence of three judges, the judgment would still be valid
as the act of the court of one judge, since that judge concurs and joins in the
rendition of the judgment. Public Service Commission v. Brasher Freight Lines,
Inc., 312 U.S. 621, 626, 61 S.Ct. 784, 85 L.Ed. 1083; O'Malley v. U.S., 8 Cir.,
128 F.2d 676, 687.
[End Footnote]
Comity
The defendants, relying on Alabama Public Service Commission v.
Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, insist that
even if the Federal court has jurisdiction, it should, in its discretion as a
court of equity, and for reasons of comity, decline to exercise such
jurisdiction until the State courts have ruled on the construction and validity
of the statutes and ordinances. The short answer is that doctrine has no
application where the plaintiffs complain that they are being deprived of
constitutional civil rights, for the protection of which the Federal courts
have a responsibility as heavy as that which rests on the State courts.
n11
[Footnote]
n11. Lane v. Wilson, 307 U.S. 268, 274, 59
S.Ct. 872, 83 L.Ed. 1281; Mitchell v. Wright, 5 Cir., 154 F.2d 924, 926; Romero
v. Weakley, 9 Cir., 226 F.2d 399, 402; Wilson v. Beebe, D.C.Del., 99 F.Supp.
418, 420. Cf. Doud v. Hodge, 350 U.S. 485, 487, 76 S.Ct. 491.
[End
Footnote]
Parties
Without repeating the averments of the complaint we hold that
they are clearly sufficient to constitute this a class action on behalf of the
four individual plaintiffs and of all other Negro citizens similarly situated.
See Rule 23(a), F.R.C.P.
It was probably not necessary for the plaintiffs to sue the
members of the Board of Commissioners and the Chief of Police, not only as such
but also individually, when no relief is sought against them by way of damages.
If, however, the plaintiffs' contentions are sustained, these defendants are
acting not only in their capacities as municipal officers, but also as officers
of the State; and, further, are possibly transcending the scope of their office
in any capacity when they compel obedience to statutes and ordinances attacked
as unconstitutional. Moreover, in issuing and enforcing an injunction, a court
of equity acts in personam. If, as we trust will be true, no relief becomes
necessary against any of them in their individual capacities, their joinder as
individuals will prove harmless. The motion to strike said parties in their
individual capacities is therefore denied.
The members of the Alabama Public Service Commission object to
their joinder as parties defendant and move to dismiss the action as against
them because they say that neither they nor the Commission have any
jurisdiction over the buses which are being operated within the City of
Montgomery and its police jurisdiction. n12
[Footnote]
n12. Compare Code of Alabama 1940, Title 48, §
239 with 2 of the Alabama Motor Carrier Act of 1939 carried into the pocket
supplement of the Alabama Code as Title 48, § 301(2).
[End Footnote]
In the Act approved July 6, 1945, General Acts of Alabama 1945,
p. 731, now carried into the pocket supplement of the 1940 Code of Alabama as
Title 48, 301(31a), see footnote 1, supra, appears the following significant
paragraph: 'The provisions of this section shall be administered and enforced
by the Alabama public service commission in the manner in which provisions of
the Alabama Motor Carrier Act of 1939 are administered and
enforced.'
Testifying as a witness, the President of the Alabama Public
Service Commission admitted that on April 24, 1956, he sent a telegram to the
National City Lines of Chicago, of which the Montgomery City Lines, Inc., is a
subsidiary, reading as follows:
'As President of the Alabama Public Service Commission, elected
by the people of Alabama, sworn to uphold the segregation laws of this state,
which include all forms of public transportation, I hereby defy ruling handed
down by the United States Supreme Court ordering desegregation on public
carriers. Alabama state law requiring segregation of the races on buses still
stands. All public carriers in Alabama are hereby directed to strictly adhere
to all present existing segregation laws in our state or suffer the
consequences.
'(s) C. C. (Jack) Owen, President Alabama Public
Service'
That telegram was sent without the knowledge or concurrence of
the other two Commissioners.
Since the 1945 Act expressly imposes on the Alabama Public
Service Commission the duty of administering and enforcing its requirements as
to segregation of the races, and since the President of the Commission has
acted so positively and affirmatively to that end, the motion to dismiss the
action as against the members of the Alabama Public Service Commission should
be and the same is hereby denied. n13
[Footnote]
n13. If, in law and fact, the Commission has no
jurisdiction over the operation of the buses here involved, the retention of
the members of the Commission as parties defendant will be harmless to them,
even if erroneous.
[End Footnote]
Validity of Separate But Equal Doctrine as Applied to
Intrastate Transportation
The ultimate question is whether the statutes and ordinances
requiring the segregation of the white and colored races on the common carrier
motor buses in the City of Montgomery and its police jurisdiction are
unconstitutional and invalid. Unless prohibited by the Constitution of the
United States, the power to require such segregation is reserved to the States
or to the people. -- See Tenth Amendment.
In their private affairs, in the conduct of their private
businesses, it is clear that the people themselves have the liberty to select
their own associates and the persons with whom they will do business,
unimpaired by the Fourteenth Amendment. The Civil Rights Cases, 109 U.S. 3, 3
S.Ct. 18, 27 L.Ed. 835. Indeed, we think that such liberty is guaranteed by the
due process clause of that Amendment.
There is, however, a difference, a constitutional difference,
between voluntary adherence to custom and the perpetuation and enforcement of
that custom by law. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed.
1161. The Fourteenth Amendment provides that 'No State shall deprive any person
of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.'
Those provisions do not interfere with the police power of the
States so long as the state laws operate alike upon all persons and property
similarly situated. Barbier v. Connolly, 113 U.S. 27, 31, 32, 5 S.Ct. 357, 28
L.Ed. 923. That Amendment 'merely requires that all persons subjected to such
legislation shall be treated alike, under like circumstances and conditions,
both in the privileges conferred and in the liabilities imposed.' Marchant v.
Pennsylvania Railroad Co., 153 U.S. 380, 390, 14 S.Ct. 894, 897, 38 L.Ed. 751.
The equal protection clause requires equality of treatment before the law for
all persons without regard to race or color. See e.g. Strauder v. West
Virginia, 100 U.S. 303, 25 L.Ed. 664; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct.
16, 62 L.Ed. 149; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172;
Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161.
In Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
256, decided in 1896, the Supreme Court held as to intrastate commerce that a
Louisiana statute, LSA-R.S. 45:528 et seq., requiring railway companies to
provide equal but separate accommodations for the white and colored races was
not in conflict with the provisions of the Fourteenth Amendment. That holding
was repeatedly followed in later cases. Chesapeake & Ohio Ry, Co. v.
Kentucky, 1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake
& Ohio Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v.
Atchison, T. & S.F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed.
169.
In Morgan v. Virginia, 1946, 328 U.S. 373, 66 S.Ct. 1050, 90
L.Ed. 1317, the Court held that a state statute requiring segregated seats for
Negro passengers on interstate buses was an unconstitutional burden of
interstate commerce. In Henderson v. United States, 1950, 339 U.S. 816, 70
S.Ct. 843, 94 L.Ed. 1302, the Court held that interstate railroad regulations
and practices assigning a separate table in a dining car to Negroes contravened
the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The Court referred to the
statutory right as 'a fundamental right of equality of treatment,' and cited
cases construing the Fourteenth Amendment, see 339 U.S. 825, 70 S.Ct. 847,
though the Court did not reach the constitutional question. The reasoning
applied was similar to that employed in Shelley v. Kraemer, 334 U.S. 1, 22, 68
S.Ct. 836, 92 L.Ed. 1161, where the Court recognized that the underlying
philosophy of the Fourteenth Amendment is the equality before the law of each
individual.
In the field of college education, beginning in 1938 and
continuing to the present time, the Court has first weakened the vitality of,
and has then destroyed, the separate but equal concept. State of Missouri ex
rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel
v. Board of Regents of University of Oklahoma, 1948, 332 U.S. 631, 68 S.Ct.
299, 92 L.Ed. 247; Fisher v. Hurst, 1948, 333 U.S. 147, 68 S.Ct. 389, 92 L.Ed.
604; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114;
McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed.
1149; State of Florida ex rel. Hawkins v. Board of Control of Florida, 1954,
347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Tureaud v. Board of Supervisors of
Louisiana State University, 1954, 347 U.S. 971, 74 S.Ct. 784, 98 L.Ed. 1112;
Lucy v. Adams, 1955, 350 U.S. 1, 76 S.Ct. [**19] 33; State of Florida ex rel.
Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464; Board of Trustees of
University of North Carolina v. Frasier, 1956, 350 U.S. 979, 76 S.Ct.
467.
The separate but equal concept had its birth prior to the
adoption of the Fourteenth Amendment in the decision of a Massachusetts State
court relating to public schools. Roberts v. City of Boston, 1849, 5 Cush. 198,
59 Mass. 198. The doctrine of that case was followed in Plessy v. Ferguson,
supra. In the School Segregation Cases, Brown v. Board of Education of Topeka,
1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 1954, 347
U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, the separate but equal doctrine was
repudiated in the area where it first developed, i.e., in the field of public
education. On the same day the Supreme Court made clear that its ruling was not
limited to that field when it remanded 'for consideration in the light of the
Segregation Cases and conditions that now prevail' a case involving the rights
of Negroes to use the recreational facilities of city parks. Muir v. Louisville
Park Theatrical Association, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed.
1112.
Later the Fourth Circuit expressly repudiated the separate but
equal doctrine as applied to recreational centers. Dawson v. Mayor and City
Council of Baltimore, 4 Cir., 220 F.2d 386, 387. Its judgment was affirmed by
the Supreme Court, 350 U.S. 877, 76 S.Ct. 133. The doctrine has further been
repudiated in holdings that the cities of Atlanta and of Miami cannot meet the
test by furnishing the facilities of their municipal golf courses to Negroes on
a segregated basis. Rice v. Arnold, 340 U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621;
Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct.
141.
Even a statute can be repealed by implication. A fortiori, a
judicial decision, which is simply evidence of the law and not the law itself,
may be so impaired by later decisions as no longer to furnish any reliable
evidence. n14
[Footnote]
n14. This principle is aptly illustrated by the
difference with which the Fourth Circuit treated Plessy v. Ferguson as a
binding precedent in 1950, Boyer v. Garrett, 183 F.2d 582 and in 1955, Flemming
v. South Carolina Electric p Gas Co., 224 F.2d 752. In their change of views
that distinguished Court headed by Chief Judge Parker was governed by the rule
best stated by Judge Parker himself, speaking for a three judge district court
in Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251,
252-253:
'Ordinarily we would feel constrained to follow an unreversed
decision of the Supreme Court of the United States, whether we agreed with it
or not. It is true that decisions are but evidences of the law and not law
itself; but the decisions of the Supreme Court must be accepted by the lower
courts as binding upon them if any orderly administration of justice is to be
attained. The developments with respect to the Gobitis case (Minersville School
District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375) however, are
such that we do not feel that it is incumbent upon us to accept it as binding
authority. Of the seven justices now members of the Supreme Court who
participated in that decision, four have given public expression to the view
that it is unsound, the present Chief Justice in his dissenting opinion
rendered therein and three other justices in a special dissenting opinion in
Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The
majority of the court in Jones v. City of Opelika, moreover, thought it worth
while to distinguish the decision in the Gobitis case, instead of relying upon
it as supporting authority. Under such circumstances and believing, as we do,
that the flag salute here required is violative of religious liberty when
required of persons holding the religious views of plaintiffs, we feel that we
would be recreant to our duty as judges, if through a blind following of a
decision which the Supreme Court itself has thus impaired as an authority, we
should deny protection to rights which we regard as among the most sacred of
those protected by constitutional
guaranties.'
To like effect is the opinion of Judge Frank for the Second
Circuit in Perkins v. Endicott Johnson Corporation, 128 F.2d 208,
217-218:
'We would stultify ourselves and unnecessarily burden the
Supreme Court if -- adhering to the dogma, obviously fictional to any reader of
its history, that alterations in that court's principles of decision never
occur unless recorded in explicit statements that earlier decisions are
overruled -- we stubbornly and literally followed decisions which have been,
but not too ostentatiously, modified. 'The life of the law,' as Mr. Justice
Holmes said, 'has been experience.' Legal doctrines, as first enunciated, often
prove to be inadequate under the impact of ensuing experience in their
practical application. And when a lower court perceives a pronounced new
doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be
sure, to follow not to resist it.' See also United States v. Girouard, 1 Cir.,
149 F.2d 760, 765, dissenting opinion of Judge Woodbury, reversed 328 U.S. 61,
66 S.Ct. 826, 90 L.Ed. 1084; New England Mutual Life Ins. Co. v. Welch, 1 Cir.,
153 F.2d 260, 262; Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636;
opinion by Judge Learned Hand; Spector Motor Service v. Walsh, 2 Cir., 139 F.2d
809, 814, opinion by Circuit Judge Clark; Gardella v. Chandler, 2 Cir., 172
F.2d 402, 409; United States v. Ullmann, 2 Cir., 221 F.2d 760, 762; 'The
Attitude of Lower Courts to Changing Precedents', 50 Yale L.J. 1448.
[End
Footnote]
We cannot in good conscience perform our duty as judges by
blindly following the precedent of Plessy v. Ferguson, supra, when our study
leaves us in complete agreement with the Fourth Circuit's opinion n15 in
Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, appeal
dismissed April 23, 1956, 351 U.S. 901, 76 S.Ct. 692, that the separate but
equal doctrine can no longer be safely followed as a correct statement of the
law. In fact, we think that Plessy v. Ferguson has been impliedly, though not
explicitly, overruled, and that, under the later decisions, there is now no
rational basis upon which the separate but equal doctrine can be validly
applied to public carrier transportation within the City of Montgomery and its
police jurisdiction. The application of that doctrine cannot be justified as a
proper execution of the state police power.
n16
[Footnote]
n15. That opinion is entitled to great respect,
especially in view of the distinction and learning of the judges who compose
that Court, Circuit Judges Parker, Soper and
Dobie.
n16. Shelley v. Kraemer, 334 U.S. 1, 21, 68 S.Ct. 836, 92
L.Ed. 1611; Morgan v. Virginia, 328 U.S. 373, 380, 66 S.Ct. 1050, 90 L.Ed.
1317; Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct. 16, 62 L.Ed. 149; City of
Birmingham v. Monk, 5 Cir., 185 F.2d 859, 862.
[End
Footnote]
We hold that the statutes and ordinances requiring segregation
of the white and colored races on the motor buses of a common carrier of
passengers in the City of Montgomery and its police jurisdiction violate the
due process and equal protection of the law clauses of the Fourteenth Amendment
to the Constitution of the United States. This holding does not, however,
become effective until the entry of formal judgment. The parties are requested
to submit to the Court in writing within two weeks from the date of this
opinion their views as to the form of judgment to be entered, and as to whether
such judgment should be stayed in the event of an
appeal.
DISSENT BY: LYNNE
DISSENT: LYNNE, District Judge
(dissenting).
Only a profound, philosophical disagreement with the ultimate
conclusion of the majority 'that the separate but equal doctrine can no longer
be safely followed as a correct statement of the law' would prompt this, my
first dissent. But I should consider myself recreant both to conscience and
duty in withholding my views because of the affection and esteem which I bear
for my associates.
For many years as a trial judge in the state and federal
systems I have endeavored faithfully to understand and apply precedents
established by the opinions of appellate courts. This was not a blind obedience
to a legalistic formula embodied in the rule of stare decisis. It was the
result of a simple belief that the laws which regulate the conduct, the
affairs, and sometimes the emotions of our people should evidence not only the
appearance but also the spirit of stability.
Judges of trial courts frequently find themselves in
disagreement with the rationale of an old, but clearly controlling precedent.
That is so because their positions do not insulate them from those changing
physical and metaphysical concepts which form a part of the life process. But
they are neither designed nor equipped to perform the legislative function of
putting off the old and putting on the new. To arrogate to themselves this
prerogative, in my humble opinion, would be the first, fatal step in making
hollow the proud boast that ours is a 'government of laws and not of
men.'
Judge Rives, just the other day, delivering the opinion of the
Court of Appeals for the Fifth Circuit, sitting en banc, in Howard v. United
States, 232 F.2d 274, 275, stated my position, clearly and concisely:
'In the face of such recognition by the Supreme Court of a test
of criminal responsibility, we do not feel at liberty to consider and decide
whether in our opinion the recent modification of such test in the District of
Columbia is sound or unsound, nor whether some other test should be adopted.
This Circuit follows the law as stated by the Supreme Court and leaves any need
for modification thereof to that Court.' (Emphasis
supplied.)
The majority recognize, it was conceded in oral arguments by
counsel for plaintiffs, that Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct.
1138, 41 L.Ed. 256, is precisely in point, and that its holding has been
repeatedly followed in later transportation cases. n1 Its authority obviously
was unaffected by the action of the Supreme Court in dismissing the appeal in
South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692.
The citation of Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258,
is convincing that it did not place the stamp of its approval upon the decision
of the Fourth Circuit in Flemming v. South Carolina Electric & Gas Co., 224
F.2d 752, but simply concluded that its judgment was not final and hence that
[**25] the appeal did not lie. 28 U.S.C.A. §
1254(2).
[Footnote]
n1. Chesapeake & Ohio Ry. Co. v. Kentucky,
1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio
Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison, T
& S.F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169.
[End
Footnote]
In complete agreement with the Fourth Circuit's opinion in
Flemming that the separate but equal doctrine can no longer be safely followed
as a correct statement of the law, the majority conclude that Plessy v.
Ferguson, in which that doctrine made its first appearance sixty years ago, has
been impliedly, though not explicitly overruled. While I share their great
respect for Judges Parker, Soper and Dobie, I do not at all
agree.
A comparatively new principle of pernicious implications has
found its way into our jurisprudence. n2 Lower courts may feel free to
disregard the precise precedent of a Supreme Court opinion if they perceive a
'pronounced new doctrinal trend' in its later decisions which would influence a
cautious judge to prophesy that in due time and in a proper case such
established precedent will be overturned explicitly. Peculiarly appropriate in
this context is the following language of Judge Woodbury, writing for the First
Circuit in New England Mutual Life Inc. Co. v. Welch, 153 F.2d 260,
262:
[Footnote]
n2. Barnette v. West Virginia State Board of
Education, D.C.1942, 47 F.Supp. 251; Perkins v. Endicott Johnson Corporation, 2
Cir., 1942, 128 F.2d 208; Spector Motor Service v. Walsh, 2 Cir., 1943, 139
F.2d 809; Gardella v. Chandler, 2 Cir., 1949, 172 F.2d 402, 409; United States
v. Ullmann, 2 Cir., 1955, 221 F.2d 760; United States v. Girouard, 1 Cir.,
1945, 149 F.2d 760; 50 Yale Law Journal 1448.
[End
Footnote]
'Furthermore we find no indication from anything said therein
of a purpose to depart from the rule of the earlier decisions cited above.
Under these circumstances we see no occasion even to consider the basic
question whether we would adopt the doctrine of Barnette v. West Virginia State
Board of Education, D.C., 47 F.Supp. 251, 253, and Spector Motor Service v.
Walsh, 2 Cir., 139 F.2d 809, 817, 823, and in extraordinary situations
disregard controlling decisions of the Supreme Court not yet explicitly
overruled. It will suffice to say that we would feel disposed to consider
taking such a course only when there are the clearest indications that the
controlling decision of the Supreme Court, though not formally overruled, would
no longer be followed by that Court and we find no such indications
here.'
In 1950, the Fourth Circuit had before it the case of Boyer v.
Garrett, 183 F.2d 582, involving an officially adopted rule providing for the
segregation of races in athletic activities in the public parks and playgrounds
in the City of Baltimore. In affirming the judgment of the District Court, the
same judges who decided Flemming held:
'The contention of plaintiffs is that, notwithstanding this
equality of treatment, the rule providing for segregation is violative of the
provisions of the federal Constitution. The District Court dismissed the
complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256; and the principal argument made on appeal is that the authority
of Plessy v. Ferguson has been so weakened by subsequent decisions that we
should no longer consider it as binding. We do not think, however, that we are
at liberty thus to disregard a decision of the Supreme Court which that court
has not seen fit to overrule and which it expressly refrained from reexamining,
although urged to do so, in the very recent case of Sweatt v. Painter, (339
U.S. 629) 70 S.Ct. 848 (94 L.Ed. 1114). It is for the Supreme Court, not us, to
overrule its decisions or to hold them
outmoded.'
In 1955, in Flemming, an intrastate transportation case,
reversing the district judge, the court
wrote:
'We do not think that the separate but equal doctrine of Plessy
v. Ferguson, supra, can any longer be regarded as a correct statement of the
law. That case recognizes segregation of the races by common carriers as being
governed by the same principles as segregation in the public schools; and the
recent decisions in Brown v. Board of Education (of Topeka), 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98
L.Ed. 884, which relate to public schools, leave no doubt that the separate but
equal doctrine approved in Plessy v. Ferguson has been repudiated. That the
principle applied in the school cases should be applied in cases involving
transportation, appears quite clearly from the recent case of Henderson v.
United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in
dining cars was held violative of a section of the interstate commerce act
providing against discrimination.'
Within this five year interval the Supreme Court had spoken
pertinently but once, in the case of Brown v. Board of Education of Topeka, 347
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, since Bolling v. Sharpe, 347 U.S. 497, 74
S.Ct. 693, 98 L.Ed. 884, did not discuss Plessy v. Ferguson and appears to have
been decided on a parity of reasoning. My study of Brown has convinced me that
it left unimpaired the "separate but equal" (347 U.S. 483, 74 S.Ct. 688)
doctrine in a local transportation case and I perceive no pronounced new
doctrinal trend therein.
Of course I appreciate the care with which the Supreme Court
limits its pronouncements upon great constitutional questions to the narrow
issues before it and the only issue in Brown involved a collision between the
Fourteenth Amendment and state laws commanding segregation in the public
schools. But in Brown the Court's opinion referred to Plessy v. Ferguson six
times and to its "separate but equal" doctrine on four occasions. It epitomized
its concept of that doctrine as follows: 'Under that doctrine, equality of
treatment is accorded when the races are provided substantially equal
facilities, even though these facilities be separate.' Its ultimate conclusion
was, and this I conceive to be the rationale of its decision, 'that in the
field of public education the doctrine of 'separate but equal' has no place.
Separate educational facilities are inherently
unequal.'
It seems to me that the Supreme Court therein recognized that
there still remains an area within our constitutional scheme of state and
federal governments wherein that doctrine may be applied even though its
applications are always constitutionally suspect and for sixty years it may
have been more honored in the breach than in the observance. Granted that the
trend of its opinions is to the effect that segregation is not to be permitted
in public facilities furnished by the state itself and the moneys of the state,
as in the case of public schools, or public parks, cf. Muir v. Louisville Park
Theatrical Association, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Dawson v.
Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350 U.S.
877, 76 S.Ct. 133, or municipal golf courses, cf. Rice v. Arnold, 340 U.S. 848,
71 S.Ct. 77, 95 L.Ed. 621; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct.
141, on the plain theory that if the state is going to provide such facilities
at all, it must provide them equally to the citizens, it does not follow that
it may not be permitted in public utilities holding nonexclusive
franchises.
If that doctrine has any vitality, this is such a case in which
it has been applied fairly. According to its teaching not absolute, but
substantial equality is required. Such equality is not a question of dogma, but
one of fact. Under the undisputed evidence adduced upon the hearing before us
practices under the laws here attacked have resulted in providing the races not
only substantially equal but in truth identical
facilities.
In my opinion the holding of the Court in Morgan v. Virginia,
328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, that the attempt of a state to
require the segregation of passengers on interstate buses results in the
imposition of an undue burden on interstate commerce is wholly irrelevant to
the issue before us. And equally inapposite is reference to Henderson v. United
States, 339 U.S. 816, 70 S.Ct. 843, 844, 94 L.Ed. 1302 which held that rules
and practices of interstate railroad carriers requiring the segregation of
passengers in dining cars were offensive to Section 3(1) of the Interstate
Commerce Act making it unlawful for a railroad in interstate commerce "to
subject any particular person, to any undue or unreasonable prejudice or
disadvantage in any respect whatsoever:
The supremacy of the federal government in matters affecting
interstate commerce is axiomatic. Cases involving the exercise of its power in
that realm shed no light on Fourteenth Amendment problems. It does seem quite
clear that by its terms the Congress is given the power and duty to enforce the
Fourteenth Amendment by legislation. Thus the Congress would have the power,
thus derived, to proscribe segregation in intrastate transportation. It is
worthy of note that for sixty years it has not seen fit to do
so.
While any student of history knows that under our system of
government vindication of the constitutional rights of the individual is not,
and ought not to be, entrusted to the Congress, its reticence to intrude upon
the internal affairs of the several states should caution us against doing so
where the path of duty is not plainly marked and when we must hold a clear
precedent of the Supreme Court outmoded.
Because I would dismiss the action on the authority of Plessy
v. Ferguson, I do not reach the procedural questions discussed in the majority
opinion. I respectfully dissent.
Source: Browder v. Gayle, 142 F. Supp. 707,
(1956).
Browder v. Gayle (1956)
June 5, 1956
OPINION BY: RIVES
Statement of the Case
The purpose of this action is to test the constitutionality of
both the statutes of the State of Alabama n1 and the ordinances of the City of
Montgomery n2 which require the segregation of the white and colored races on
the motor buses of the Montgomery City Lines, Inc., a common carrier of
passengers in said City and its police
jurisdiction.
[Footnote]
n1. Title 48, § 301(31a, b, c), Code of
Alabama of 1940, as amended, which provide:
' § 301(31a). Separate accommodations for white and colored
races. -- All passenger stations in this state operated by any motor
transportation company shall have separate waiting rooms or space and separate
ticket windows for the white and colored races, but such accommodations for the
races shall be equal. All motor transportation companies or operators of
vehicles carrying passengers for hire in this state, whether intrastate or
interstate passengers, shall at all times provide equal but separate
accommodations on each vehicle for the white and colored races. The conductor
or agent of the motor transportation company in charge of any vehicle is
authorized and required to assign each passenger to the division of the vehicle
designated for the race to which the passenger belongs; and, if the passenger
refuses to occupy the division to which he is assigned, the conductor or agent
may refuse to carry the passenger on the vehicle; and, for such refusal,
neither the conductor or agent of the motor transportation company nor the
motor transportation company shall be liable in damages. Any motor
transportation company or person violating the provisions of this section shall
be guilty of a misdemeanor and, upon conviction, shall be fined not more than
five hundred dollars for each offense; and each day's violation of this section
shall constitute a separate offense.
'The provisions of this section shall be administered and
enforced by the Alabama public service commission in the manner in which
provisions of the Alabama Motor Carrier Act of 1939 are administered and
enforced. (1945, p. 731, appvd. July 6,
1945.)
' § 301(31b). Operators of passenger stations and carriers
authorized to segregate white and colored races. -- All passenger stations in
this state operated by or for the use of any motor transportation company shall
be authorized to provide separate waiting rooms, facilities, or space, or
separate ticket windows, for the white and colored races but such
accommodations for the races shall be equal. All motor transportation companies
and operators of vehicles, carrying passengers for hire in this states, whether
intrastate of interstate passengers, are authorized and empowered to provide
separate accommodations on each vehicle for the white and colored races. Any
officer or agent of such motor transportation company or operator, in charge of
any vehicle, is authorized to assign or reassign each passenger or person to a
division, section or seat on the vehicle designated by such company or
operator, or by such officer or agent, for the race to which the passenger or
person belongs; and if the passenger or person refuses to occupy the division,
section or seat to which he is so assigned, such officer or agent may refuse
further to carry the passenger on the vehicle. For such refusal neither the
officer nor agent, nor the motor transportation company, nor operator, shall be
liable in damages. (1947, p. 40, § 1, appvd. July 18,
1947.)
'301(31c). Failure to comply with rules and regulations as to
segregation of white and colored races. -- It shall be unlawful for any person
willfully to refuse or fail to comply with any reasonable rule, regulation, or
directive of any operator of a passenger station in this state operated by or
for the use of any such motor transportation company, or of any authorized
officer or agent of such operator, providing separate waiting rooms,
facilities, or space, or separate ticket windows, for white and colored races;
or willfully to refuse or fail to comply with any reasonable assignment or
reassignment by any officer or agent in charge of any vehicle of any such motor
transportation company or of any operator of vehicles carrying passengers for
hire, of any passenger or person to a division, section, or seat on such
vehicle designated by such officer or agent for the race to which such
passenger or person belongs; any person so refusing or failing to comply with
any such reasonable rule, regulation, or assignment, as aforesaid, shall be
guilty of a misdemeanor and upon conviction shall be fined not more than $
500.00 for such offense. (1947, p. 40, § 2, appvd. July 18, 1947.)'
n2. Section 10, Chapter 6, Code of the City of Montgomery,
1952, which provides:
'Every person operating a bus line in the city shall provide
equal but separate accommodations for white people and negroes on his buses, by
requiring the employees in charge thereof to assign passengers seats on the
vehicles under their charge in such manner as to separate the white people from
the negroes, where there are both white and negroes on the same car; provided,
however, that negro nurses having in charge white children or sick or infirm
white persons, may be assigned seats among white
people.
'Nothing in this section shall be construed as prohibiting the
operators of such bus lines from separating the races by means of separate
vehicles if they see fit.'
Section 11 of Chapter 6, Montgomery City Code of 1952, further
provides:
'Any employee in charge of a bus operated in the city shall
have the powers of a police officer of the city while in actual charge of any
bus, for the purpose of carrying out the provisions of the preceding section,
and it shall be unlawful for any passenger to refuse or fail to take a seat
among those assigned to the race to which he belongs, at the request of any
such employee in charge, if there is such a seat vacant.'
[End
Footnote]
The plaintiffs are four Negro citizens who bring this action
for themselves and on behalf of all other Negroes similarly situated. n3 The
defendants are the members of the Board of Commissioners and the Chief of
Police of the City of Montgomery, the members of the Alabama Public Service
Commission, The Montgomery City Lines, Inc., and two of its employee
drivers.
[Footnote]
n3. Rule 23(a), Fed.Rules Civ.Proc. 28
U.S.C.A.
[End Footnote]
Each of the four named plaintiffs has
either been required by a bus driver or by the police to comply with said
segregation laws or has been arrested and fined for her refusal so to do. The
plaintiffs, along with most other Negro citizens of the City of Montgomery,
have since December 5, 1955, and up to the present time, refrained from making
use of the transportation facilities provided by Montgomery City Lines, Inc.
Plaintiffs and other Negroes desire and intend to resume the use of said buses
if and when they can do so on a non-segregated basis without fear of
arrest.
The members of the Board of Commissioners and the Chief of
Police of the City of Montgomery in their answers to the complaint admit 'that
they seek to enforce the statutes of the State of Alabama and the ordinances of
the City of Montgomery, Alabama', and further aver that 'segregation of
privately owned buses within cities within the State of Alabama is in
accordance with the laws of the State of Alabama and the City of
Montgomery.'
The members of the Alabama Public Service Commission deny that
they, in their official capacities as such members have any jurisdiction over,
or have issued any orders relating to the separation of the races on buses
operated wholly within the City of Montgomery and its police jurisdiction. On
information and belief they allege that the members of the Board of
Commissioners and the Chief of Police of said City 'have sought to enforce by
legal means constitutional and valid statutes and ordinances providing for
separate but equal seating arrangements on buses operated in the City of
Montgomery, Alabama, and its police
jurisdiction'.
The Montgomery City Lines, Inc., admits that it has operated,
and pursuant to orders of a State Court, continues to operate 'its buses as
required by the Statutes and Ordinances set out in the Complaint requiring it
to provide equal but separate accommodations for the white and colored races'.
Without dispute the evidence is to the effect that, other than being separate,
such accommodations are equal.
The defendants, Blake and Cleere, admit they are employees of
the Montgomery City Lines and drivers of its buses, that as such they have
acted pursuant to orders of said Company which 'has operated its buses on the
basis of racial segregation as required by said statutes and ordinances'. They
deny that as drivers of said buses they are exercising the powers of police
officers in the enforcement of said statutes and
ordinances.
The complaint prays for the convening of a three-judge district
court as provided by Title 28 of the United States Code, § 2284; for a
declaratory judgment as to whether the enforcement of said statutes and
ordinances abridges the privileges and immunities of plaintiffs as citizens of
the United States, or deprives them of liberty without due process of law, or
denies to them the equal protection of the laws, as secured by the Fourteenth
Amendment to the Constitution of the United States, n4 and the rights and
privileges secured to them by Title 42, United States Code, §§ 1981 and 1983.
n5 The complaint further prays that the defendants be both temporarily and
permanently enjoined from enforcing the statutes and ordinances claimed to be
unconstitutional and in conflict with said Federal
statutes.
[Footnote]
n4. Fourteenth Amendment, §
1:
'All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United States and of
the State wherein they reside. No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.'
n5. ' § 1981. Equal rights under the
law
'All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal benefit of all
laws and proceedings for the security of persons and property as is enjoyed by
white citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no
other.'
' § 1983. Civil action for deprivation of
rights
'Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper proceeding for
redress.'
[End Footnote]
Federal Jurisdiction
Federal jurisdiction is invoked under Title 28, United States
Code, §§ 1331 and 1343(3), n6 and under Title 42, United States Code, §§ 1981
and 1983, footnote 5, supra. We think that the validity of both the State
statutes and the City ordinances is in question, but if only the City
ordinances are involved, Federal jurisdiction would still exist because the
Constitution and statutes of Alabama authorize the adoption of City ordinances
'not inconsistent with the laws of the state,' n7 and because the
constitutional phrase 'equal protection of the laws' refers to City ordinances
adopted under State authority as well as to State statutes.
n8
[Footnote]
n6. ' § 1331. Federal question; amount in
controversy
'The district courts shall have original jurisdiction of all
civil actions wherein the matter in controversy exceeds the sum or value of $
3,000, exclusive of interest and costs, and arises under the Constitution, laws
or treaties of the United States.'
' § 1343. Civil rights
'The district courts shall have original jurisdiction of any
civil action authorized by law to be commenced by any
person:
'(3) To redress the deprivation, under color of any State law,
statute, ordinance, regulation, custom or usage, of any right, privilege or
immunity secured by the Constitution of the United States or by any Act of
Congress providing for equal rights of citizens or of all persons within the
jurisdiction of the United States.'
n7. Constitution of Alabama of 1901, § 89; Alabama Code of
1940, Title 37, § 455.
n8. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149;
Cf. 42 U.S.C.A. § 1983; Carlson v. People of State of California, 310 U.S. 106,
60 S.Ct. 746, 84 L.Ed. 1104; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct.
666, 82 L.Ed. 949; North American Cold Storage Co. v. City of Chicago, 211 U.S.
306, 29 S.Ct. 101, 53 L.Ed. 195; City of El Paso v. Texas Cities Gas Co., 5
Cir., 100 F.2d 501.
[End Footnote]
Jurisdiction of Three Judge District
Court
A three judge district court is required for the granting of
'An interlocutory or permanent injunction restraining the enforcement,
operation or execution of any State statute by restraining the action of any
officer of such State'. 28 U.S.C.A. § 2281. According to the complaint and the
answers, the separation of the races on the buses is required both by State
statutes and by City ordinances. Admittedly, therefore, State statutes are
involved. The defendants claim, however, that the statutes and ordinances are
being enforced by municipal officers only, and not by 'any officer of such
State'. 28 U.S.C.A. § 2281, supra.
If the members of the Alabama Public Service Commission are
proper parties defendant, a matter to be hereinafter discussed, then it must be
conceded that the objection to the jurisdiction of the three judge district
court fails. Irrespective of the answer to that question, however, we think
that the three judge district court has
jurisdiction.
The State statutes, footnote 1, supra, vest in the defendant
bus drivers the authority to enforce, and, notwithstanding their insistence to
the contrary, we think that when so engaged the bus drivers clearly are
officers of the State.
The City Commissioners have important duties to perform in
connection with the enforcement, operation, and execution of State statutes.
Under Alabama law, a municipal corporation 'is essentially a public agency, a
local unit of government, invested with a portion of the sovereign power of the
state, for the benefit of its inhabitants.' Cooper v. Town of Valley Head, 212
Ala. 125, 101 So. 874, 875. The defendant Chief of Police has authority to make
arrests for violations of State statutes, 1940 Code of Alabama, Title 15, §
152. The City Recorder in criminal cases has the power of an exofficio justice
of the peace. 1940 Code of Alabama, Title 37, § 585. All of the City officials
admit in their answers that they are enforcing the State statutes. An official,
though localized by his geographic activities and the mode of his selection,
is performing a State function when he enforces a statute which 'embodies a
policy of state-wide concern'. n9
[Footnote]
n9. Spielman Motor Sales Co. v. Dodge, 295 U.S.
89, 55 S.Ct. 678, 680, 79 L.Ed. 1322; Rorick v. Board of Commissioners, 307
U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland v. United States,
323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed. 274; Watch Tower Bible & Tract
Society v. City of Bristol, D.C.Conn., 24 F.Supp. 57, affirmed 305 U.S. 572, 59
S.Ct. 246, 83 L.Ed. 361; Suncrest Lumber Co. v. North Carolina Park Commission,
4 Cir., 29 F.2d 823.
[End Footnote]
Very clearly, the three judge district court has jurisdiction.
n10
[Footnote]
n10. If, however, the proceedings were not such
as to require the presence of three judges, the judgment would still be valid
as the act of the court of one judge, since that judge concurs and joins in the
rendition of the judgment. Public Service Commission v. Brasher Freight Lines,
Inc., 312 U.S. 621, 626, 61 S.Ct. 784, 85 L.Ed. 1083; O'Malley v. U.S., 8 Cir.,
128 F.2d 676, 687.
[End Footnote]
Comity
The defendants, relying on Alabama Public Service Commission v.
Southern Railway Co., 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, insist that
even if the Federal court has jurisdiction, it should, in its discretion as a
court of equity, and for reasons of comity, decline to exercise such
jurisdiction until the State courts have ruled on the construction and validity
of the statutes and ordinances. The short answer is that doctrine has no
application where the plaintiffs complain that they are being deprived of
constitutional civil rights, for the protection of which the Federal courts
have a responsibility as heavy as that which rests on the State courts.
n11
[Footnote]
n11. Lane v. Wilson, 307 U.S. 268, 274, 59
S.Ct. 872, 83 L.Ed. 1281; Mitchell v. Wright, 5 Cir., 154 F.2d 924, 926; Romero
v. Weakley, 9 Cir., 226 F.2d 399, 402; Wilson v. Beebe, D.C.Del., 99 F.Supp.
418, 420. Cf. Doud v. Hodge, 350 U.S. 485, 487, 76 S.Ct. 491.
[End
Footnote]
Parties
Without repeating the averments of the complaint we hold that
they are clearly sufficient to constitute this a class action on behalf of the
four individual plaintiffs and of all other Negro citizens similarly situated.
See Rule 23(a), F.R.C.P.
It was probably not necessary for the plaintiffs to sue the
members of the Board of Commissioners and the Chief of Police, not only as such
but also individually, when no relief is sought against them by way of damages.
If, however, the plaintiffs' contentions are sustained, these defendants are
acting not only in their capacities as municipal officers, but also as officers
of the State; and, further, are possibly transcending the scope of their office
in any capacity when they compel obedience to statutes and ordinances attacked
as unconstitutional. Moreover, in issuing and enforcing an injunction, a court
of equity acts in personam. If, as we trust will be true, no relief becomes
necessary against any of them in their individual capacities, their joinder as
individuals will prove harmless. The motion to strike said parties in their
individual capacities is therefore denied.
The members of the Alabama Public Service Commission object to
their joinder as parties defendant and move to dismiss the action as against
them because they say that neither they nor the Commission have any
jurisdiction over the buses which are being operated within the City of
Montgomery and its police jurisdiction. n12
[Footnote]
n12. Compare Code of Alabama 1940, Title 48, §
239 with 2 of the Alabama Motor Carrier Act of 1939 carried into the pocket
supplement of the Alabama Code as Title 48, § 301(2).
[End Footnote]
In the Act approved July 6, 1945, General Acts of Alabama 1945,
p. 731, now carried into the pocket supplement of the 1940 Code of Alabama as
Title 48, 301(31a), see footnote 1, supra, appears the following significant
paragraph: 'The provisions of this section shall be administered and enforced
by the Alabama public service commission in the manner in which provisions of
the Alabama Motor Carrier Act of 1939 are administered and
enforced.'
Testifying as a witness, the President of the Alabama Public
Service Commission admitted that on April 24, 1956, he sent a telegram to the
National City Lines of Chicago, of which the Montgomery City Lines, Inc., is a
subsidiary, reading as follows:
'As President of the Alabama Public Service Commission, elected
by the people of Alabama, sworn to uphold the segregation laws of this state,
which include all forms of public transportation, I hereby defy ruling handed
down by the United States Supreme Court ordering desegregation on public
carriers. Alabama state law requiring segregation of the races on buses still
stands. All public carriers in Alabama are hereby directed to strictly adhere
to all present existing segregation laws in our state or suffer the
consequences.
'(s) C. C. (Jack) Owen, President Alabama Public
Service'
That telegram was sent without the knowledge or concurrence of
the other two Commissioners.
Since the 1945 Act expressly imposes on the Alabama Public
Service Commission the duty of administering and enforcing its requirements as
to segregation of the races, and since the President of the Commission has
acted so positively and affirmatively to that end, the motion to dismiss the
action as against the members of the Alabama Public Service Commission should
be and the same is hereby denied. n13
[Footnote]
n13. If, in law and fact, the Commission has no
jurisdiction over the operation of the buses here involved, the retention of
the members of the Commission as parties defendant will be harmless to them,
even if erroneous.
[End Footnote]
Validity of Separate But Equal Doctrine as Applied to
Intrastate Transportation
The ultimate question is whether the statutes and ordinances
requiring the segregation of the white and colored races on the common carrier
motor buses in the City of Montgomery and its police jurisdiction are
unconstitutional and invalid. Unless prohibited by the Constitution of the
United States, the power to require such segregation is reserved to the States
or to the people. -- See Tenth Amendment.
In their private affairs, in the conduct of their private
businesses, it is clear that the people themselves have the liberty to select
their own associates and the persons with whom they will do business,
unimpaired by the Fourteenth Amendment. The Civil Rights Cases, 109 U.S. 3, 3
S.Ct. 18, 27 L.Ed. 835. Indeed, we think that such liberty is guaranteed by the
due process clause of that Amendment.
There is, however, a difference, a constitutional difference,
between voluntary adherence to custom and the perpetuation and enforcement of
that custom by law. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed.
1161. The Fourteenth Amendment provides that 'No State shall deprive any person
of life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.'
Those provisions do not interfere with the police power of the
States so long as the state laws operate alike upon all persons and property
similarly situated. Barbier v. Connolly, 113 U.S. 27, 31, 32, 5 S.Ct. 357, 28
L.Ed. 923. That Amendment 'merely requires that all persons subjected to such
legislation shall be treated alike, under like circumstances and conditions,
both in the privileges conferred and in the liabilities imposed.' Marchant v.
Pennsylvania Railroad Co., 153 U.S. 380, 390, 14 S.Ct. 894, 897, 38 L.Ed. 751.
The equal protection clause requires equality of treatment before the law for
all persons without regard to race or color. See e.g. Strauder v. West
Virginia, 100 U.S. 303, 25 L.Ed. 664; Buchanan v. Warley, 245 U.S. 60, 38 S.Ct.
16, 62 L.Ed. 149; Gong Lum v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172;
Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed.
1161.
In Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
256, decided in 1896, the Supreme Court held as to intrastate commerce that a
Louisiana statute, LSA-R.S. 45:528 et seq., requiring railway companies to
provide equal but separate accommodations for the white and colored races was
not in conflict with the provisions of the Fourteenth Amendment. That holding
was repeatedly followed in later cases. Chesapeake & Ohio Ry, Co. v.
Kentucky, 1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake
& Ohio Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v.
Atchison, T. & S.F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed.
169.
In Morgan v. Virginia, 1946, 328 U.S. 373, 66 S.Ct. 1050, 90
L.Ed. 1317, the Court held that a state statute requiring segregated seats for
Negro passengers on interstate buses was an unconstitutional burden of
interstate commerce. In Henderson v. United States, 1950, 339 U.S. 816, 70
S.Ct. 843, 94 L.Ed. 1302, the Court held that interstate railroad regulations
and practices assigning a separate table in a dining car to Negroes contravened
the Interstate Commerce Act, 49 U.S.C.A. § 1 et seq. The Court referred to the
statutory right as 'a fundamental right of equality of treatment,' and cited
cases construing the Fourteenth Amendment, see 339 U.S. 825, 70 S.Ct. 847,
though the Court did not reach the constitutional question. The reasoning
applied was similar to that employed in Shelley v. Kraemer, 334 U.S. 1, 22, 68
S.Ct. 836, 92 L.Ed. 1161, where the Court recognized that the underlying
philosophy of the Fourteenth Amendment is the equality before the law of each
individual.
In the field of college education, beginning in 1938 and
continuing to the present time, the Court has first weakened the vitality of,
and has then destroyed, the separate but equal concept. State of Missouri ex
rel. Gaines v. Canada, 1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel
v. Board of Regents of University of Oklahoma, 1948, 332 U.S. 631, 68 S.Ct.
299, 92 L.Ed. 247; Fisher v. Hurst, 1948, 333 U.S. 147, 68 S.Ct. 389, 92 L.Ed.
604; Sweatt v. Painter, 1950, 339 U.S. 629, 70 S.Ct. 848, 94 L.Ed. 1114;
McLaurin v. Oklahoma State Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed.
1149; State of Florida ex rel. Hawkins v. Board of Control of Florida, 1954,
347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Tureaud v. Board of Supervisors of
Louisiana State University, 1954, 347 U.S. 971, 74 S.Ct. 784, 98 L.Ed. 1112;
Lucy v. Adams, 1955, 350 U.S. 1, 76 S.Ct. [**19] 33; State of Florida ex rel.
Hawkins v. Board of Control, 350 U.S. 413, 76 S.Ct. 464; Board of Trustees of
University of North Carolina v. Frasier, 1956, 350 U.S. 979, 76 S.Ct.
467.
The separate but equal concept had its birth prior to the
adoption of the Fourteenth Amendment in the decision of a Massachusetts State
court relating to public schools. Roberts v. City of Boston, 1849, 5 Cush. 198,
59 Mass. 198. The doctrine of that case was followed in Plessy v. Ferguson,
supra. In the School Segregation Cases, Brown v. Board of Education of Topeka,
1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 1954, 347
U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, the separate but equal doctrine was
repudiated in the area where it first developed, i.e., in the field of public
education. On the same day the Supreme Court made clear that its ruling was not
limited to that field when it remanded 'for consideration in the light of the
Segregation Cases and conditions that now prevail' a case involving the rights
of Negroes to use the recreational facilities of city parks. Muir v. Louisville
Park Theatrical Association, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed.
1112.
Later the Fourth Circuit expressly repudiated the separate but
equal doctrine as applied to recreational centers. Dawson v. Mayor and City
Council of Baltimore, 4 Cir., 220 F.2d 386, 387. Its judgment was affirmed by
the Supreme Court, 350 U.S. 877, 76 S.Ct. 133. The doctrine has further been
repudiated in holdings that the cities of Atlanta and of Miami cannot meet the
test by furnishing the facilities of their municipal golf courses to Negroes on
a segregated basis. Rice v. Arnold, 340 U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621;
Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct.
141.
Even a statute can be repealed by implication. A fortiori, a
judicial decision, which is simply evidence of the law and not the law itself,
may be so impaired by later decisions as no longer to furnish any reliable
evidence. n14
[Footnote]
n14. This principle is aptly illustrated by the
difference with which the Fourth Circuit treated Plessy v. Ferguson as a
binding precedent in 1950, Boyer v. Garrett, 183 F.2d 582 and in 1955, Flemming
v. South Carolina Electric p Gas Co., 224 F.2d 752. In their change of views
that distinguished Court headed by Chief Judge Parker was governed by the rule
best stated by Judge Parker himself, speaking for a three judge district court
in Barnette v. West Virginia State Board of Education, D.C., 47 F.Supp. 251,
252-253:
'Ordinarily we would feel constrained to follow an unreversed
decision of the Supreme Court of the United States, whether we agreed with it
or not. It is true that decisions are but evidences of the law and not law
itself; but the decisions of the Supreme Court must be accepted by the lower
courts as binding upon them if any orderly administration of justice is to be
attained. The developments with respect to the Gobitis case (Minersville School
District v. Gobitis, 310 U.S. 586, 60 S.Ct. 1010, 84 L.Ed. 1375) however, are
such that we do not feel that it is incumbent upon us to accept it as binding
authority. Of the seven justices now members of the Supreme Court who
participated in that decision, four have given public expression to the view
that it is unsound, the present Chief Justice in his dissenting opinion
rendered therein and three other justices in a special dissenting opinion in
Jones v. City of Opelika, 316 U.S. 584, 62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The
majority of the court in Jones v. City of Opelika, moreover, thought it worth
while to distinguish the decision in the Gobitis case, instead of relying upon
it as supporting authority. Under such circumstances and believing, as we do,
that the flag salute here required is violative of religious liberty when
required of persons holding the religious views of plaintiffs, we feel that we
would be recreant to our duty as judges, if through a blind following of a
decision which the Supreme Court itself has thus impaired as an authority, we
should deny protection to rights which we regard as among the most sacred of
those protected by constitutional
guaranties.'
To like effect is the opinion of Judge Frank for the Second
Circuit in Perkins v. Endicott Johnson Corporation, 128 F.2d 208,
217-218:
'We would stultify ourselves and unnecessarily burden the
Supreme Court if -- adhering to the dogma, obviously fictional to any reader of
its history, that alterations in that court's principles of decision never
occur unless recorded in explicit statements that earlier decisions are
overruled -- we stubbornly and literally followed decisions which have been,
but not too ostentatiously, modified. 'The life of the law,' as Mr. Justice
Holmes said, 'has been experience.' Legal doctrines, as first enunciated, often
prove to be inadequate under the impact of ensuing experience in their
practical application. And when a lower court perceives a pronounced new
doctrinal trend in Supreme Court decisions, it is its duty, cautiously to be
sure, to follow not to resist it.' See also United States v. Girouard, 1 Cir.,
149 F.2d 760, 765, dissenting opinion of Judge Woodbury, reversed 328 U.S. 61,
66 S.Ct. 826, 90 L.Ed. 1084; New England Mutual Life Ins. Co. v. Welch, 1 Cir.,
153 F.2d 260, 262; Picard v. United Aircraft Corp., 2 Cir., 128 F.2d 632, 636;
opinion by Judge Learned Hand; Spector Motor Service v. Walsh, 2 Cir., 139 F.2d
809, 814, opinion by Circuit Judge Clark; Gardella v. Chandler, 2 Cir., 172
F.2d 402, 409; United States v. Ullmann, 2 Cir., 221 F.2d 760, 762; 'The
Attitude of Lower Courts to Changing Precedents', 50 Yale L.J. 1448.
[End
Footnote]
We cannot in good conscience perform our duty as judges by
blindly following the precedent of Plessy v. Ferguson, supra, when our study
leaves us in complete agreement with the Fourth Circuit's opinion n15 in
Flemming v. South Carolina Electric & Gas Co., 224 F.2d 752, appeal
dismissed April 23, 1956, 351 U.S. 901, 76 S.Ct. 692, that the separate but
equal doctrine can no longer be safely followed as a correct statement of the
law. In fact, we think that Plessy v. Ferguson has been impliedly, though not
explicitly, overruled, and that, under the later decisions, there is now no
rational basis upon which the separate but equal doctrine can be validly
applied to public carrier transportation within the City of Montgomery and its
police jurisdiction. The application of that doctrine cannot be justified as a
proper execution of the state police power.
n16
[Footnote]
n15. That opinion is entitled to great respect,
especially in view of the distinction and learning of the judges who compose
that Court, Circuit Judges Parker, Soper and
Dobie.
n16. Shelley v. Kraemer, 334 U.S. 1, 21, 68 S.Ct. 836, 92
L.Ed. 1611; Morgan v. Virginia, 328 U.S. 373, 380, 66 S.Ct. 1050, 90 L.Ed.
1317; Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct. 16, 62 L.Ed. 149; City of
Birmingham v. Monk, 5 Cir., 185 F.2d 859, 862.
[End
Footnote]
We hold that the statutes and ordinances requiring segregation
of the white and colored races on the motor buses of a common carrier of
passengers in the City of Montgomery and its police jurisdiction violate the
due process and equal protection of the law clauses of the Fourteenth Amendment
to the Constitution of the United States. This holding does not, however,
become effective until the entry of formal judgment. The parties are requested
to submit to the Court in writing within two weeks from the date of this
opinion their views as to the form of judgment to be entered, and as to whether
such judgment should be stayed in the event of an
appeal.
DISSENT BY: LYNNE
DISSENT: LYNNE, District Judge
(dissenting).
Only a profound, philosophical disagreement with the ultimate
conclusion of the majority 'that the separate but equal doctrine can no longer
be safely followed as a correct statement of the law' would prompt this, my
first dissent. But I should consider myself recreant both to conscience and
duty in withholding my views because of the affection and esteem which I bear
for my associates.
For many years as a trial judge in the state and federal
systems I have endeavored faithfully to understand and apply precedents
established by the opinions of appellate courts. This was not a blind obedience
to a legalistic formula embodied in the rule of stare decisis. It was the
result of a simple belief that the laws which regulate the conduct, the
affairs, and sometimes the emotions of our people should evidence not only the
appearance but also the spirit of stability.
Judges of trial courts frequently find themselves in
disagreement with the rationale of an old, but clearly controlling precedent.
That is so because their positions do not insulate them from those changing
physical and metaphysical concepts which form a part of the life process. But
they are neither designed nor equipped to perform the legislative function of
putting off the old and putting on the new. To arrogate to themselves this
prerogative, in my humble opinion, would be the first, fatal step in making
hollow the proud boast that ours is a 'government of laws and not of
men.'
Judge Rives, just the other day, delivering the opinion of the
Court of Appeals for the Fifth Circuit, sitting en banc, in Howard v. United
States, 232 F.2d 274, 275, stated my position, clearly and concisely:
'In the face of such recognition by the Supreme Court of a test
of criminal responsibility, we do not feel at liberty to consider and decide
whether in our opinion the recent modification of such test in the District of
Columbia is sound or unsound, nor whether some other test should be adopted.
This Circuit follows the law as stated by the Supreme Court and leaves any need
for modification thereof to that Court.' (Emphasis
supplied.)
The majority recognize, it was conceded in oral arguments by
counsel for plaintiffs, that Plessy v. Ferguson, 1896, 163 U.S. 537, 16 S.Ct.
1138, 41 L.Ed. 256, is precisely in point, and that its holding has been
repeatedly followed in later transportation cases. n1 Its authority obviously
was unaffected by the action of the Supreme Court in dismissing the appeal in
South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901, 76 S.Ct. 692.
The citation of Slaker v. O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258,
is convincing that it did not place the stamp of its approval upon the decision
of the Fourth Circuit in Flemming v. South Carolina Electric & Gas Co., 224
F.2d 752, but simply concluded that its judgment was not final and hence that
[**25] the appeal did not lie. 28 U.S.C.A. §
1254(2).
[Footnote]
n1. Chesapeake & Ohio Ry. Co. v. Kentucky,
1900, 179 U.S. 388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio
Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison, T
& S.F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169.
[End
Footnote]
In complete agreement with the Fourth Circuit's opinion in
Flemming that the separate but equal doctrine can no longer be safely followed
as a correct statement of the law, the majority conclude that Plessy v.
Ferguson, in which that doctrine made its first appearance sixty years ago, has
been impliedly, though not explicitly overruled. While I share their great
respect for Judges Parker, Soper and Dobie, I do not at all
agree.
A comparatively new principle of pernicious implications has
found its way into our jurisprudence. n2 Lower courts may feel free to
disregard the precise precedent of a Supreme Court opinion if they perceive a
'pronounced new doctrinal trend' in its later decisions which would influence a
cautious judge to prophesy that in due time and in a proper case such
established precedent will be overturned explicitly. Peculiarly appropriate in
this context is the following language of Judge Woodbury, writing for the First
Circuit in New England Mutual Life Inc. Co. v. Welch, 153 F.2d 260,
262:
[Footnote]
n2. Barnette v. West Virginia State Board of
Education, D.C.1942, 47 F.Supp. 251; Perkins v. Endicott Johnson Corporation, 2
Cir., 1942, 128 F.2d 208; Spector Motor Service v. Walsh, 2 Cir., 1943, 139
F.2d 809; Gardella v. Chandler, 2 Cir., 1949, 172 F.2d 402, 409; United States
v. Ullmann, 2 Cir., 1955, 221 F.2d 760; United States v. Girouard, 1 Cir.,
1945, 149 F.2d 760; 50 Yale Law Journal 1448.
[End
Footnote]
'Furthermore we find no indication from anything said therein
of a purpose to depart from the rule of the earlier decisions cited above.
Under these circumstances we see no occasion even to consider the basic
question whether we would adopt the doctrine of Barnette v. West Virginia State
Board of Education, D.C., 47 F.Supp. 251, 253, and Spector Motor Service v.
Walsh, 2 Cir., 139 F.2d 809, 817, 823, and in extraordinary situations
disregard controlling decisions of the Supreme Court not yet explicitly
overruled. It will suffice to say that we would feel disposed to consider
taking such a course only when there are the clearest indications that the
controlling decision of the Supreme Court, though not formally overruled, would
no longer be followed by that Court and we find no such indications
here.'
In 1950, the Fourth Circuit had before it the case of Boyer v.
Garrett, 183 F.2d 582, involving an officially adopted rule providing for the
segregation of races in athletic activities in the public parks and playgrounds
in the City of Baltimore. In affirming the judgment of the District Court, the
same judges who decided Flemming held:
'The contention of plaintiffs is that, notwithstanding this
equality of treatment, the rule providing for segregation is violative of the
provisions of the federal Constitution. The District Court dismissed the
complaint on the authority of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138,
41 L.Ed. 256; and the principal argument made on appeal is that the authority
of Plessy v. Ferguson has been so weakened by subsequent decisions that we
should no longer consider it as binding. We do not think, however, that we are
at liberty thus to disregard a decision of the Supreme Court which that court
has not seen fit to overrule and which it expressly refrained from reexamining,
although urged to do so, in the very recent case of Sweatt v. Painter, (339
U.S. 629) 70 S.Ct. 848 (94 L.Ed. 1114). It is for the Supreme Court, not us, to
overrule its decisions or to hold them
outmoded.'
In 1955, in Flemming, an intrastate transportation case,
reversing the district judge, the court
wrote:
'We do not think that the separate but equal doctrine of Plessy
v. Ferguson, supra, can any longer be regarded as a correct statement of the
law. That case recognizes segregation of the races by common carriers as being
governed by the same principles as segregation in the public schools; and the
recent decisions in Brown v. Board of Education (of Topeka), 347 U.S. 483, 74
S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98
L.Ed. 884, which relate to public schools, leave no doubt that the separate but
equal doctrine approved in Plessy v. Ferguson has been repudiated. That the
principle applied in the school cases should be applied in cases involving
transportation, appears quite clearly from the recent case of Henderson v.
United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, where segregation in
dining cars was held violative of a section of the interstate commerce act
providing against discrimination.'
Within this five year interval the Supreme Court had spoken
pertinently but once, in the case of Brown v. Board of Education of Topeka, 347
U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, since Bolling v. Sharpe, 347 U.S. 497, 74
S.Ct. 693, 98 L.Ed. 884, did not discuss Plessy v. Ferguson and appears to have
been decided on a parity of reasoning. My study of Brown has convinced me that
it left unimpaired the "separate but equal" (347 U.S. 483, 74 S.Ct. 688)
doctrine in a local transportation case and I perceive no pronounced new
doctrinal trend therein.
Of course I appreciate the care with which the Supreme Court
limits its pronouncements upon great constitutional questions to the narrow
issues before it and the only issue in Brown involved a collision between the
Fourteenth Amendment and state laws commanding segregation in the public
schools. But in Brown the Court's opinion referred to Plessy v. Ferguson six
times and to its "separate but equal" doctrine on four occasions. It epitomized
its concept of that doctrine as follows: 'Under that doctrine, equality of
treatment is accorded when the races are provided substantially equal
facilities, even though these facilities be separate.' Its ultimate conclusion
was, and this I conceive to be the rationale of its decision, 'that in the
field of public education the doctrine of 'separate but equal' has no place.
Separate educational facilities are inherently
unequal.'
It seems to me that the Supreme Court therein recognized that
there still remains an area within our constitutional scheme of state and
federal governments wherein that doctrine may be applied even though its
applications are always constitutionally suspect and for sixty years it may
have been more honored in the breach than in the observance. Granted that the
trend of its opinions is to the effect that segregation is not to be permitted
in public facilities furnished by the state itself and the moneys of the state,
as in the case of public schools, or public parks, cf. Muir v. Louisville Park
Theatrical Association, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Dawson v.
Mayor and City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350 U.S.
877, 76 S.Ct. 133, or municipal golf courses, cf. Rice v. Arnold, 340 U.S. 848,
71 S.Ct. 77, 95 L.Ed. 621; Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct.
141, on the plain theory that if the state is going to provide such facilities
at all, it must provide them equally to the citizens, it does not follow that
it may not be permitted in public utilities holding nonexclusive
franchises.
If that doctrine has any vitality, this is such a case in which
it has been applied fairly. According to its teaching not absolute, but
substantial equality is required. Such equality is not a question of dogma, but
one of fact. Under the undisputed evidence adduced upon the hearing before us
practices under the laws here attacked have resulted in providing the races not
only substantially equal but in truth identical
facilities.
In my opinion the holding of the Court in Morgan v. Virginia,
328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, that the attempt of a state to
require the segregation of passengers on interstate buses results in the
imposition of an undue burden on interstate commerce is wholly irrelevant to
the issue before us. And equally inapposite is reference to Henderson v. United
States, 339 U.S. 816, 70 S.Ct. 843, 844, 94 L.Ed. 1302 which held that rules
and practices of interstate railroad carriers requiring the segregation of
passengers in dining cars were offensive to Section 3(1) of the Interstate
Commerce Act making it unlawful for a railroad in interstate commerce "to
subject any particular person, to any undue or unreasonable prejudice or
disadvantage in any respect whatsoever:
The supremacy of the federal government in matters affecting
interstate commerce is axiomatic. Cases involving the exercise of its power in
that realm shed no light on Fourteenth Amendment problems. It does seem quite
clear that by its terms the Congress is given the power and duty to enforce the
Fourteenth Amendment by legislation. Thus the Congress would have the power,
thus derived, to proscribe segregation in intrastate transportation. It is
worthy of note that for sixty years it has not seen fit to do
so.
While any student of history knows that under our system of
government vindication of the constitutional rights of the individual is not,
and ought not to be, entrusted to the Congress, its reticence to intrude upon
the internal affairs of the several states should caution us against doing so
where the path of duty is not plainly marked and when we must hold a clear
precedent of the Supreme Court outmoded.
Because I would dismiss the action on the authority of Plessy
v. Ferguson, I do not reach the procedural questions discussed in the majority
opinion. I respectfully dissent.
Source: Browder v. Gayle, 142 F. Supp. 707,
(1956).