292 F.2d 4 (5th Cir. 1961), 18187, Boman v. Birmingham Transit Co.

Docket Nº:18187.
Citation:292 F.2d 4
Party Name:Lillie BOMAN et al., Appellants, v. BIRMINGHAM TRANSIT COMPANY, Appellee.
Case Date:April 14, 1961
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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292 F.2d 4 (5th Cir. 1961)

Lillie BOMAN et al., Appellants,

v.

BIRMINGHAM TRANSIT COMPANY, Appellee.

No. 18187.

United States Court of Appeals, Fifth Circuit.

April 14, 1961

Rehearing Denied April 25, 1961.

Appeal from the United States District Court for the Northern District of Alabama; Harlan Hobart Grooms, Judge.

Arthur D. Shores, Birmingham, Ala., Thurgood Marshall, Jack Greenberg, James M. Babrit, III, New York City, of counsel, for appellants.

James C. Barton, J. M. Breckenridge, Birmingham, Ala., Deramus, Fitts & Johnston, Birmingham, Ala., of counsel, for appellee.

Before TUTTLE, CAMERON and WISDOM, Circuit Judges.

CAMERON, Circuit Judge (dissenting).

I noted my dissent from the opinion rendered in this case July 12, 1930 and published in 280 F.2d 531. Following are the grounds upon which my dissent is based.

I.

A clear understanding of the issues presented by this appeal requires that their statement in the majority opinion be supplemented. The thirteen Negroes who filed this action met at a place of business in Birmingham to formulate plans for riding a city bus. 1 Written instructions had been drawn up and passed out outlining the deportment the group should adhere to in riding the bus. The meeting was noticed by one of the traffic officers of the City of Birmingham who also observed the group en route from the place of meeting to the place of boarding the bus.

When the bus pulled in to the regular stop at the curb the members of the group boarded it, took their seats at the front of the bus and were, as shown in the majority opinion, requested by the bus driver to seat themselves from the rear forward in compliance with the stenciled sign at the front of the bus: 'White Passengers Seat from Front, Colored Passengers from Rear.' The court below found from undisputed proof, and the majority recognizes, that the approach was made in a courteous manner and was in the form of a request, and that there were no untoward incidents attendant upon the request of the bus driver and the refusal of appellees to comply with it. Pursuant to written instructions theretofore given him, the bus driver left the vehicle standing, and went to a nearby telephone and called the dispatcher's office reporting what had happened. An assistant superintendent answered the call, going immediately to the bus. He did not enter it, but talked with the driver through a window at his side. About that time the traffic officer came, in company with a captain of police of the City of Birmingham whom he had called. The latter ordered the two Transit Company employees to take the bus to the Company's garage. This order was given by the police because a crowd of several hundred people has gathered around the bus.

The police arrived ahead of the bus and when it reached the garage they, and probably two other members of the police force, boarded it. The driver was directed to repeat to each individual Negro the request that he move to the back of the bus. Four or five complied with this request, but these plaintiffs refused.

The police, on their own motion and without any suggestion from the transit Company employees, arrested nine members of the group, and this ended whatever

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connection the Transit Company had with the episode. The court below found on undisputed evidence that all bus drivers were instructed not to call police, that nobody connected with the Transit Company had called the police, and that the Transit Company had no connection at all with what the police did (except as above set out). The court further found that, for a period of at least five years, no employee of the Transit Company had, under like circumstances, ever called the police (and the evidence showed without contradiction that requests similar to those made here had been promptly observed over the years).

The court below further found that the new buses, which had the signs stenciled on the front and rear ends, had been ordered some months before the change of ordinances by the City Commission of Birmingham; and found that no provision had been made in the new buses for color boards such as had formerly been used. This was an economy move based upon the fact that about one hundred fifty boards per month had theretofore been removed by passengers from the buses.

The episode, planned and provoked by appellants, occurred about one week after the repeal of the old ordinance and passage of the new. Some three weeks later this action was filed against appellee, Birmingham Transit Company and the three City Commissioners of Birmingham in their individual and official capacities. The City of Birmingham was not sued, although it was included in the answer of the Commissioners. It was eliminated as a party, however, by pretrial order of the court. 2 The relief asked against the remaining parties was a declaratory judgment defining the rights of the parties, adjudging Ordinance No. 1487-F of the Birmingham City Code as applied to the plaintiffs and others similarly situated, to be unconstitutional as in violation of the Fourteenth Amendment, awarding plaintiffs money damages in the sum of $100,000, and an injunction against the defendants from enforcing said ordinance 'and any custom, practice, or usage which requires segregation of the races * * *' From this outline of the complaint it is plain that plaintiffs were not primarily seeking a judgment annulling the ordinance because of its unconstitutionality, but were making incidental reference to this claim as the basis for the other relief sought.

The gravamen of the complaint is that appellee Transit Company was conspiring and acting in concert with city officials to enforce segregation under the ordinance quoted in the majority opinion. 3

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No proof at all was made tending to sustain these averments. The proof was all the other way; and the court below found that there had been no concert of action or conspiracy between the Transit Company and the other defendants or the policemen. 4

The appellants argue before us that the over-all facts here warrant or compel the finding that there was collaboration. The majority, however, apparently rejects that argument. It bases it opinion entirely on the fact that the Transit Company held a franchise from the City of Birmingham to use the streets and that this fact made the acts of the Transit Company, in asking the appellees to change their seats, State action.

It is pertinent to observe the averments of the complaint with respect to the franchise feature. The only mention of a franchise is contained in these words: 'The defendant, Birmingham Transit Company, Incorporated, is a corporation organized and existing under the laws of the State of Alabama, with its principal place of business in the City of Birmingham, and is engaged in operating within the corporate limits and police jurisdiction of said city, a bus line for transportation of passengers for hire, pursuant to a franchise issued by said City of Birmingham.' Appellee admitted these averments in its answer. No evidence was introduced concerning the franchise, and there is no showing whether it was exclusive, mandatory or merely permissive, whether it was terminable at will, or as to any of the terms of the franchise. 5

The point is that there is no evidence that the Transit Company had anything to do with the passage of this ordinance, or that it was advised of its existence, and certainly none that it had any notice that the policemen intended to invoke the ordinance or mark any arrests, or that appellee collaborated in any way in such actions. The court below, based upon the only evidence in the record, found that appellee was not acting under the ordinance, but was proceeding pursuant to the written instructions it had given its bus operators in which it was stated that the ordinances having to do with separation of passengers on buses had been repealed. 6 The entire bulletin, quoted in full in Note 2 of the majority opinion (280 F.2d 533-534), shows that bus operators were to go no further than to 'request the cooperation of such passenger in complying with Company rules to further the safe and peaceful handling of passengers.' This request was to be made in a low voice and in a tactful manner. Reference was made,

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not to any ordinance, but 'the reasonable rules that are now in effect with reference to seating in buses.'

Based upon these facts and in the face of the finding by the court below which the majority opinion does not challenge, and without the citation of any authority, 7 the majority here concludes that the promulgation and enforcement by polite request only of the rule set forth in the bulletins quoted in the majority opinion constituted a denial of plaintiffs' constitutional rights. The paragraph epitomizing the majority's conclusion reads thus:

'Of course, the simple company rule that the Negro passengers must sit in back and white passengers must sit in front, while an unnecessary affront to a large group of patrons, would not effect a denial of constitutional rights if not enforced by force or by threat of arrest and criminal action. Where, as here, the city delegated to its franchise holder the power to make rules for seating of passengers and made the violation of such rules criminal, no matter how peaceable, quiet or rightful (as the court here held), such violation was, we conclude that the bus company to that extent became an agent of the State and its actions in promulgating and enforcing the rule constituted a denial of plaintiffs' constitutional rights.'

This language of the majority, applied to the facts in this case, in my opinion, required that the decision of the court below be affirmed, not reversed. In Shelley v. Kraemer...

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