Bailey v. Patterson

• Citation: 323 F.2d 201
• Decision Date: 08 November 1963
• Docket Number: No. 20372.,20372.
• Parties: Samuel BAILEY et al., Appellants, v. Joe T. PATTERSON, Attorney General of the State of Mississippi, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

323 F.2d 201 (1963)

Samuel BAILEY et al., Appellants, v. Joe T. PATTERSON, Attorney General of the State of Mississippi, et al., Appellees.

No. 20372.

United States Court of Appeals Fifth Circuit.

September 24, 1963.

Rehearing Denied November 8, 1963.

Derrick A. Bell, Jr., Jack Greenberg, Constance Baker Motley, New York City, R. Jess Brown, Vicksburg, Miss., for appellants.

Elizabeth W. Grayson, Jackson, Miss., Wence F. Cerne, Atty. (I. C. C. RR.), Chicago, Ill., Thomas H. Watkins, Joe T. Patterson, Atty. Gen. of Miss., John M. Kuykendall, Jr., Jackson, Miss., for appellee Illinois Central R. Co. Joseph H. Wright, Chicago, Ill., of counsel.

Junior O'Mara, Robert C. Cannada, Jackson, Miss., for appellees, Greyhound Corp. and Continental Southern Lines, Inc., Butler, Snow, O'Mara, Stevens & Cannada, Jackson, Miss., of counsel.

E. W. Stennett, City Atty., Jackson, Miss., for the City of Jackson and others.

Before CAMERON, WISDOM and HAYS,^* Circuit Judges.

HAYS, Circuit Judge.

Plaintiffs, Negroes living in Jackson, Mississippi, appeal from judgments of the United States District Court for the Southern District of Mississippi, S. C. Mize, Judge, which declared unconstitutional both the so-called Segregation Statutes of the State of Mississippi,¹ and a similar ordinance of the City of Jackson, and declared that each of the plaintiffs had a right to unsegregated transportation service from each of the carrier defendants,² but denied to appellants injunctive or class relief against any of the defendants. We hold that appellants are entitled to injunctive relief and reverse the judgments, pro tanto.

Jurisdiction was invoked under the Civil Rights Act, 28 U.S.C. § 1343, and 42 U.S.C. § 1983. Plaintiffs alleged that defendants, acting under color of state law, policy, and custom, denied to plaintiffs and the class of all others similarly situated, their right to transportation service free from racial discrimination. They based their claim on the Fourteenth Amendment and the Commerce Clause of the Constitution of the United States, and on the Interstate Commerce Act, 49 U.S. C. §§ 3(1), 316(d). Plaintiffs sought to enjoin the enforcement of state and municipal segregation laws affecting common carriers, and to enjoin all defendants from maintaining racial segregation in any manner, by the use of signs or otherwise, on the carriers³ or in or around their terminals or other facilities anywhere in the state. Plaintiffs also sought to enjoin the municipal authorities from continuing to arrest, harass, intimidate, threaten or coerce plaintiffs or members of their class in the exercise of their federally protected rights.

A three judge court, convened pursuant to 28 U.S.C. § 2281, invoked the doctrine of equitable abstention "to give the State Courts of Mississippi a reasonable opportunity to act." 199 F.Supp. 595, 603 (S.D.Miss.1961) (Rives, C. J., dissenting). On a direct appeal, the Supreme Court vacated the judgment, and remanded the case to the district court "for expeditious disposition * * * of appellants' claims of right to unsegregated transportation service." 369 U.S. 31, 34, 82 S.Ct. 549, 551, 7 L.Ed.2d 512 (1962). The Supreme Court held that the abstention doctrine was inapplicable, and that there was no justification for convening a three judge court.

"We have settled beyond question that no State may require racial segregation of interstate or intrastate transportation facilities. Morgan v. Com. of Virginia, 328 U.S. 373 66 S.Ct. 1050, 90 L.Ed. 1317; Gayle v. Browder, 352 U.S. 903 77 S.Ct. 145, 1 L.Ed.2d 114; Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206. The question is no longer open; it is foreclosed as a litigable issue. Section 2281 does not require a three-judge court when the claim that a statute is unconstitutional is wholly insubstantial, legally speaking non-existent. * * * We hold that three judges are similarly not required when, as here, prior decisions make frivolous any claim that a state statute on its face is not unconstitutional." 369 U.S. at 33, 82 S.Ct. at 550-551, 7 L.Ed.2d 512.

The Court also disposed of the argument that plaintiffs lacked standing to bring the action.

"As passengers using the segregated transportation facilities they are aggrieved parties and have standing to enforce their rights to nonsegregated treatment. Mitchell v. United States, 313 U.S. 80, 93 61 S.Ct. 873, 85 L.Ed. 1201; Evers v. Dwyer, 358 U.S. 202 79 S.Ct. 178, 3 L.Ed.2d 222." 369 U.S. at 33,⁴ 82 S.Ct. at 550-551, 7 L.Ed.2d 512.

Upon the remand, the district court, on the original record before the three judge court, entered judgment declaring the statutes and ordinance unconstitutional, and stating that "each of the three plaintiffs has a right to unsegregated transportation service from each of the carrier defendants." It ruled, however, that the action was "not a proper class action, and no relief may be granted other than that to which the plaintiffs are personally entitled." The district court found that the segregation statutes were no longer enforced, that the record disclosed only "isolated instances" of improper behavior by law enforcement officials, that segregation signs had been removed from the premises of the carrier defendants, and that all terminal facilities of the carriers were now being fully used by members of all races. It therefore denied injunctive relief, but retained jurisdiction for the entry of further orders as might subsequently appear appropriate.

Appellants promptly moved to amend the findings, and for further relief on the basis of affidavits showing continuing segregation. A hearing was held, and the court found that signs referring to race had remained posted, and that certain other discrimination had continued after the initial order, but that the situation had now been corrected. Injunctive and class relief was again denied.

Upon a subsequent motion again alleging continued segregation, injunctive relief was denied for a third time.⁵

Plaintiffs appeal from all three orders, insofar as they (a) refused to grant injunctive relief, (b) refused to recognize the class nature of the action, and (c) refused to enjoin the City of Jackson from maintaining racial signs on the sidewalks outside the waiting rooms at the terminals of the carrier defendants. These signs had been ignored in the findings and orders of the district court.

Our decision in United States v. City of Jackson, 5 Cir., 318 F.2d 1, after the notice of appeal herein was filed, renders moot the third of the three bases of the appeal. We ordered that an injunction should issue against the City of Jackson, its Commissioners, and its Chief of Police directing the removal of these same signs and any others indicating or suggesting that any of the terminal facilities are for the use of persons of any particular race or color. We further directed that the defendants be enjoined from "otherwise seeking to enforce or encourage racial segregation in the use of terminal facilities of the carriers."

Only the first two bases for the appeal herein remain for our consideration.

We find it unnecessary to set forth the evidence in detail. Suffice it to say that appellants, all Negro residents of Jackson, Mississippi, have experienced racial segregation in using the facilities of each of the carrier appellees. Separate wating rooms, drinking fountains, rest rooms and other terminal facilities were maintained by the carrier appellees, and signs directed to race were posted in the terminals of the interstate carrier defendants, and on the buses of the Jackson City Lines. The latter signs directed Negroes to the rear of the bus. Negro witnesses, other than appellants, testified to instances in which they had been ordered by drivers of each of the bus company appellees to sit in the rear of the bus, and in which police had been called and the witnesses arrested upon their refusal to comply. Appellants introduced in evidence approximately 190 judgments of conviction for breach of the peace entered against persons arrested in waiting rooms of the interstate carrier appellees in Jackson at the time of the so-called Freedom Ride demonstrations in the summer of 1961. Appellants themselves have neither been arrested nor threatened with arrest for refusal to comply with the segregation laws or policies of the appellees. They were, however, users of appellees' segregated facilities and thus acquired standing to sue. Bailey v. Patterson, supra, 369 U.S. at 33, 82 S.Ct. at 550-551, 7 L.Ed.2d 512. The law is crystal clear that they were not required to subject themselves to arrest in order to maintain this suit. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958); Morrison v. Davis, 252 F.2d 102 (5th Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1075 (1958); Baldwin v. Morgan, 251 F.2d 780, 787 (5th Cir., 1958).

Even after the entry of judgment in the present case, separate facilities for white and Negro passengers continued to be maintained by all carrier defendants, and racial signs remained posted. The lessees of restaurants at the Jackson Municipal Airport and at a Continental (Trailways) bus terminal in Meridian, Mississippi, continued to refuse unsegregated service to Negroes.

I.

Appellees insist that these practices have now ceased, that all racial signs in and around the facilities of the carrier defendants have now been removed, and that state and municipal segregation laws are no longer enforced. Even assuming this to be so, appellants are entitled to injunctive relief. Notwithstanding the clear pronouncements of the Supreme Court in the present case, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, and in Boynton v. Com. of Virginia, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (1960); Gayle v. Browder, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956); and Morgan v. Com. of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317 (1946); of this Court in Boman v. Birmingham...