Holmes v. Wallace, Civ. A. No. 75-390-N.

• Decision Date: 12 February 1976
• Docket Number: Civ. A. No. 75-390-N.
• Citation: 407 F. Supp. 493
• Parties: Alvin A. HOLMES, Individually and as a Representative in the Alabama State Legislature, Plaintiff, v. George C. WALLACE, Individually and as Governor of the State of Alabama, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

407 F. Supp. 493

Alvin A. HOLMES, Individually and as a Representative in the Alabama State Legislature, Plaintiff, v. George C. WALLACE, Individually and as Governor of the State of Alabama, et al., Defendants.

Civ. A. No. 75-390-N.

United States District Court, M. D. Alabama, N. D.

February 12, 1976.

Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., for plaintiff.

Charles M. Crook, Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., for defendants.

ORDER

VARNER, District Judge.

This cause is now presented upon the motion to dismiss filed herein November 18, 1975, as amended January 7, 1976, upon which oral argument was heard in this Court on January 16, 1976. The action is brought upon two theories of liability. Plaintiff alleges that the flying of the flag of the former Confederate States of America immediately below that of the State of Alabama on a halyard atop the Alabama State Capitol in Montgomery, Alabama, together with the flying of the United States flag elsewhere on the Capitol grounds at an elevation lower than that occupied by the Confederate flag, constitutes a violation of 36 U.S.C. § 175 which provides, in pertinent part, as follows:

"No person shall display the flag of the United Nations or any other national or international flag equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States or any Territory or possession thereof: Provided, That nothing in this section shall make unlawful the continuance of the practice heretofore followed of displaying the flag of the United Nations in a position of superior prominence or honor, and other national flags in positions of equal prominence or honor, with that of the flag of the United States at the headquarters of the United Nations."

Plaintiff alleges that this Court has jurisdiction by virtue of 28 U.S.C. § 1331 to remedy this alleged violation of the Federal Flag Code. He further alleges that the display of flags above described is also a violation of his rights under the Thirteenth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 and § 1985, claiming jurisdiction pursuant to 28 U.S.C. § 1343.

In reply to Plaintiff's claim that the Defendants are in violation of § 175(c) which constitutes a part of the so-called "flag code" of the United States, Defendants maintain among other contentions that § 175(c) provides no sanctions against violators and was not intended to proscribe but merely to prescribe conduct and that Plaintiff has no standing to complain of the alleged violation of this section.

It appears that § 175(c) has been considered by only three reported cases, only two of which are federal cases, even though it has been on the law books in its present form since 1953. Both federal cases, however, have concerned the same portion of the section involved in this action.

Concerning the absence of statutory sanctions against noncompliance with the usages prescribed in § 175(c) and other provisions of the United States Flag Code (36 U.S.C. §§ 173-178), the Court in State of Delaware ex rel. Trader v. Hodsdon, 265 F.Supp. 308 (D.Del.1967), made the following analysis:

"There is yet another reason for dismissing the complaint herein. The action is founded upon the defendant's alleged violation of 36 U.S.C.A. § 175(c) (1953). Title 36 is not intended to proscribe behavior. It is fashioned as an expression of prevalent custom regarding the display of the American flag. Section 173 thereof so stated: `The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States.'

"It is apparent that the sections are a codification of existing `rules and customs' and are intended for the `use' of people not required to conform with other regulations. If the purpose is to compel certain behavior then the selection of the word `use' is odd draftsmanship. Further, § 175(c) provides that `no other flag * * * should be placed above' the American flag. Again, a strange choice of language if the codification is intended to mandate behavior and not merely to influence it.

"Further, whenever in Title 36 certain behavior was intended to be absolutely proscribed a specific section followed attaching penalties. For example, § 182(a-c) relates to service lapel buttons and who is entitled to wear them. Immediately following these sub-sections appears § 182d which provides the penalties for violation of § 182(a-c). If Congress specifically provided for penalties to attach to § 182(a-c) and did not so provide with regard to § 175 then the implication is clear that § 175 was intended merely as an expression of proper usage, not to mandate behavior." At page 310.

In Doyle v. Fleming, 219 F.Supp. 277 (D.Canal Zone, 1963), the Court considered a challenge to the practice of the Governor of the Canal Zone in flying the flag of the Republic of Panama at an equal height with and alongside that of the United States of America. The Court concluded that, because the practice alleged by plaintiff did not come within the prohibition of § 175(c), plaintiff did not make out a cause of action under the statute:

"It is therefore quite clear that the `equal height' interpretation of the plaintiff is erroneous and the position of honor at the right of the Panamanian flag is in compliance with the statute. As plaintiff complains only of the `equal height', he has not made out a cause of action and his complaint must fail on this point." At page 282.

Plaintiff in the instant case cites Doyle for the proposition that a district court has jurisdiction to hear a cause arising under this section. This contention is apparently in response to the alternative holding of Delaware ex rel Trader, supra, that the district court had no jurisdiction under § 1331 because of a lack of a sufficient amount in controversy and that no special jurisdiction statute exists relative to § 175(c). The Doyle court did not discuss the question of jurisdiction or jurisdictional amount. It is to be noted that in Doyle the § 175(c) claim was only one of several practices complained of. In the course of its opinion, the Doyle court did find, moreover, that:

"The `United States District Court for the District of the Canal Zone' is not a United States district court within the meaning of Title 28, U.S.C., Chapter 5. Congress has defined `district courts' to be those courts enumerated in 28 U.S.C. §§ 81-144 and the Canal Zone court is not included.

"In establishing the jurisdiction and venue of the District Court of the Canal Zone further evidence is found on the part of Congress to differentiate * * *." At page 280.

This conclusion is one basis upon which the Delaware ex rel Trader Court distinguished Doyle:

"The plaintiff cites the case of Doyle v. Fleming, 219 F.Supp. 277 (D.Canal Zone 1963), for the proposition that the District Courts have jurisdiction over Title 36 violations. The Court therein did not consider the jurisdictional question, nor did it expressly pass on the interpretation to be given to § 175(c). However, as pointed out in the Court's opinion, the District Court for the Canal Zone is not a regularly constituted District Court. 219 F.Supp. at 280. The customary limitations upon the jurisdiction of United States District Courts do not apply to such territorial courts. For this reason the Doyle case is distinguishable." At page 310.

If there are no available sanctions for violation of § 175(c) or if Plaintiff has no standing to complain of its violation (see below), it will be unnecessary for this Court to confront the issue of jurisdiction in any greater detail.

The conclusion of the District Court of Delaware, which as demonstrated above is not in conflict with the Doyle case, that no sanctions exist for violation of § 175(c), which is not intended to proscribe conduct, is also the conclusion of the New York Supreme Court as to the flag code generally. Lapolla v. Dullaghan, 63 Misc.2d 157, 311 N.Y.S.2d 435 (N.Y.1970).

An examination of the flag code section of Title 36 as a whole leads to the conclusion that §§ 173-178, as well as the associated §§ 170-173, are not intended to proscribe conduct but are merely declaratory or advisory. The language of § 173 and the recurrent use of the word "should", as pointed out by the Court in Delaware ex rel. Trader v. Hodsdon, supra, are indicative of a lack of penal purpose.

It might be argued, however, that the pertinent part of § 175(c), which although imbedded in the flag code was independently added by amendment in 1953, represents an exception to the general non-penal intent, as suggested by its use of the word "shall" and its proviso that the customary display of flags at U.N. Headquarters in New York shall not be made "unlawful" by the terms of the amendment. Senate Bill 694, approved as Public Law 107 (Chapter 183) on July 9, 1953, which embodies the relevant words of § 175(c), stated in its subtitle that it was: "An Act to prohibit the display of flags of international organizations or other nations in equal or superior prominence or honor to the flag of the United States except under specified circumstances, and for other purposes." Senate Report No. 258 (May 12, 1953), in support of S. 694, contained the following language:

"It would appear, therefore, that Federal laws would or should have been enacted long since making it an offense against the United States for anyone to show disrespect, or to fail to show proper respect, toward the United States flag anywhere within the jurisdiction of this Government, but that has not been done. It now has become a sad necessity to take positive action to protect and

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