Anderson v. City of Albany

• Decision Date: 12 September 1963
• Docket Number: No. 20501.,20501.
• Parties: W. G. ANDERSON et al., Appellants, v. CITY OF ALBANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 649 (1963)

W. G. ANDERSON et al., Appellants, v. CITY OF ALBANY et al., Appellees.

No. 20501.

United States Court of Appeals Fifth Circuit.

July 26, 1963.

Rehearing Denied September 12, 1963.

D. L. Hollowell, Atlanta, Ga., C. B. King, Albany, Ga., Constance Baker Motley, New York City, for appellants.

H. G. Rawls, H. P. Burt, Albany, Ga., for appellees.

Before TUTTLE, Chief Judge, and RIVES and GEWIN, Circuit Judges.

TUTTLE, Chief Judge.

This is an appeal by the appellants, four Negro residents of the city of Albany, Georgia, officials of the so-called "Albany Movement," from an order of the trial court dismissing their complaint, which, as a class action, sought to enjoin the defendants from continuing to enforce certain alleged segregation practices with respect to publicly owned and operated facilities of the city and certain other privately owned, but publicly regulated, facilities. The complaint alleged that segregation of the races is enforced by police officers of the city of Albany in the public recreational, library, and auditorium facilities of the city and that through the existence of ordinances of the city of Albany, segregation of the races is enforced in the privately owned transportation facilities, theatres and taxicabs. It is these practices which appellants sought to enjoin by their suit.¹

After extended hearings conducted by the trial court on three separate occasions, the court held that the four named plaintiffs did not represent the class on whose behalf they brought suit, because the record did not disclose that they individually had ever been denied access to the public facilities in suit or had been compelled to use them on a segregated basis. The court thereupon held that they could not recover on their own behalf because they had not shown such denial to themselves individually and could not recover on behalf of the class because they had not shown that they were members of the class. On a careful review of all of the evidence in light of the decided cases both by this Court and the Supreme Court, we conclude that the trial court erred in dismissing the complaint and in failing to grant the injunction sought.

Much of the record was consumed by what appears to have been an effort on behalf of the defendants to prove, first, that no demand had been made by the appellants for an end to the policies about which they complained, and, second, that, in fact, the policies of racial segregation about which hundreds of Negro citizens of Albany protested, and in connection with which protests they were frequently arrested, really did not exist at all. The fact is that several times during the course of the trial the Mayor of the City of Albany stated that a demand touching on these racial policies of the city had been made to him as the representative of the City Commission, and that any change in the policy had been declined by him representing the Commission. Moreover, with respect to each of the facilities mentioned in the complaint, there was undisputed evidence, usually given by the defendants themselves, to the effect that the policies of segregation were then in effect so far as relates to the public facilities, and were required by City Ordinance, whether or not enforced by the defendants, with respect to the regulated private businesses.

First, with reference to whether the appellants, or any of them, had themselves been aggrieved by the segregation policies of the city of Albany, (assuming for the moment that such policies did exist) in response to the question, "When was the first time you ever received a communication or gained any knowledge of the existence of the Albany Movement?", Mayor Kelly answered as follows: "That's rather difficult to answer, in that I don't recall when the organization was first identified as the Albany Movement. I do recall that Dr. Anderson, and I believe Marion Page, and I think C. B. King, and perhaps Slater King (both Dr. Anderson and Slater King are plaintiffs in this suit), I'm not sure, came to see me as early as February, 1961, to discuss the feelings of certain members of the Negro community; and I believe presented at that time a request to be submitted to the City Commission; which, in substance if I recall correctly, sought complete desegregation of all public facilities, but I am not clear as to exactly what the demand was at that time. At that time I indicated to Dr. Anderson and to the others present that in my judgment the proper forum for the relief they sought was in the Federal Court (Emphasis Added)."

Later, in response to a further question, Mayor Kelly testified that exhibit 7² was presented to him but he did not recall whether it was at a meeting or whether it was delivered "to us." Then the following testimony took place:

"A. I recall seeing this, yes.

"Q. And that is the matter or document which you say requested desegregation of public facilities?

"A. This is one of the documents which requests desegregation of all public facilities, yes.

"Q. What action has been taken on that petition?

"A. It was presented to the City Commission. It was the feeling of the City Commission that the request embraced too much, based on the long-term customs of this area, that it was not feasible at this time to consider complete desegregation; and that the Albany Movement or the people representing the Albany Movement should properly resort to the Federal Courts for redress."

There is no real dispute here but that literally thousands of people in the city of Albany associated themselves in the activities that all parties to this suit in the trial court repeatedly called the "Albany Movement." Possibly the clearest indication of this is in a reply published by the City Commission in one of the local newspapers purporting to be an answer to the requests made by the Movement as above indicated. This reply is addressed "To the Leaders of the Albany Movement." The reply did not deal with any of the specific requests contained in the petition quoted above, but called attention to the progress which had been made by the Negro citizens. It included the following paragraph:

"This Commission recognizes that the community is composed of white and Negro citizens, and that peace and harmony must exist and endure. The achievement of these goals, however, does not lie in the flagrant violation of laws and ordinances, and the profane use of the church, the ministry and religion for the furtherance of political objectives."

The following ten paragraphs all speak of benefits enjoyed by Negroes as a class within the city of Albany or the responsibilities of Negroes as a class and ended with the statement, "If the Negro leaders of Albany have a sincere desire to help earn acceptance for their people, they can accomplish far more by encouraging the improvement of their moral and ethical standards." It is thus plain that not only did the plaintiffs here, both as the elected representatives of the unincorporated association called "The Albany Movement" and also, the recognized leaders of the Negro community, truly represent the Negro citizenship of the city of Albany in the demands that were being made upon the City government. We conclude, therefore, that there is no factual dispute but that the four plaintiffs were members of a class whose interests were the basis of demands made by them on the defendants and which the evidence clearly shows were rejected.

Assuming, as we do for the purpose of testing the action of the trial court here, that in order for there to be a justiciable controversy there must be a demand that there be an end to the racially discriminatory practices made by the class or some members of the class of which the named plaintiffs are members, there can be no doubt in the light of the testimony of the Mayor of the City of Albany that such demand was, in fact, made by at least two of the plaintiffs in this suit. Moreover, the record is replete with testimony that over an extended period constant picketing and demonstrations carried on by these named plaintiffs and many others repeatedly made the same demands on the city officials, who reacted uniformly by arresting these plaintiffs and many others while thus engaged.³

There is nothing in Bailey v. Patterson, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512, that requires a particular plaintiff in such a proceeding as this to subject himself to arrest before he can attack the municipal or state policy of continued enforcement of segregation in public facilities. In fact that decision recognized the very right which the plaintiffs here sought to assert on behalf of the class. The Court's statement there that "they cannot represent a class of whom they are not a part," related only to the effort by the named plaintiffs who had not been arrested or prosecuted to enjoin actual prosecutions in the state courts of hundreds of Negro citizens who had actually been arrested, many of whom had been tried and convicted. They were not members of that class — they were, however, members of the class of Negro citizens who were adversely affected by the State's policy of racial segregation. There is no requirement, as we have stated in Morrison v. Davis, et al., 5 Cir., 252 F.2d 102, at page 103:

"To have incidents requiring arrests to have the rights of people declared."

Thus it need not be shown that these individual plaintiffs actually subjected themselves to arrest in order to bring this action. The Supreme Court dealt with just such a situation in the case of Evers v. Dwyer, 358 U.S. 202, at page 204, 79 S.Ct. 178, at page 179, 3 L.Ed.2d 222, where, dealing with the right of a Negro to attack the validity of City Ordinances requiring segregated buses, the Court said:

"A resident of the municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the

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