Baldwin v. Morgan

• Decision Date: 14 January 1958
• Docket Number: No. 16717.,16717.
• Citation: Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958)
• Parties: Carl L. BALDWIN and Alexinia Baldwin, Appellants, v. J. W. MORGAN, R. E. Lindbergh, J. T. Waggoner, Individually and as Members of the Board of Commissioners of the City of Birmingham, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

251 F.2d 780 (1958)

Carl L. BALDWIN and Alexinia Baldwin, Appellants, v. J. W. MORGAN, R. E. Lindbergh, J. T. Waggoner, Individually and as Members of the Board of Commissioners of the City of Birmingham, et al., Appellees.

No. 16717.

United States Court of Appeals Fifth Circuit.

January 14, 1958.

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Oscar W. Adams, Jr., Demetrius C. Newton, Birmingham, Ala., for appellants.

Jos. F. Johnston, James H. Willis, City Atty., Birmingham, Ala., Gordon Madison, Asst. Atty. Gen. of Alabama, J. M. Breckenridge, Thad Holt, Jr., Cabaniss & Johnston, Birmingham, Ala., John Patterson, Atty. Gen. of Alabama, William F. Black, Montgomery, Ala., for appellees.

Before RIVES, JONES and BROWN, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

The question here is whether the complaint for injunction and declaratory relief, filed as a class action by Negroes complaining of discriminatory segregation in the Birmingham Railroad Terminal, stated a Civil Rights case against the three groups of defendants, the Alabama Public Service Commissioners, the City of Birmingham Commissioners, and Birmingham Terminal Company. The District Court held that it did not and dismissed¹ the case.

Leaving to later discussion the more troublesome point of the sufficiency of the complaint against the Terminal because it has no direct status as an agency of the state, we think that, under the applicable principles of federal pleadings, it sufficiently charged a violation of one or more Civil Rights. The complaint expressly referred to the jurisdictional statute, 28 U.S.C.A. § 1343(3), to the Civil Rights Statute, 42 U.S.C.A. §§ 1981, 1983, (under its former codification as 8 U.S.C.A. §§ 41, 43), the Fourteenth Amendment and Art. 1, Sec. 8, of the Constitution, presumably to comprehend Clause 3 granting to Congress the power "To regulate Commerce with foreign Nations, and among the several States * * *."

Reading the complaint as a whole, as we must, the principal question² framed for declaratory relief, 28 U.S.C.A. §§ 2201, 2202, became a part of later allegations and this spelled out that the grievance the plaintiffs had was that the defendants, under color of practice, custom, usage or state law, were denying Negroes equal privileges and immunities by depriving them of their right to use the "Interstate and White Waiting Room" or any other waiting room, because of their race and color.

This was followed by specific allegations as to each of the three defendant groups. After describing the status of the City Commissioners (one of whom was Police Commissioner), it charged in positive terms that the Commissioners "* * * are pursuing a * * * custom, statute or usage which denies the plaintiffs and all other Negroes similarly situated their right to use the waiting room at the * * * Terminal * * * designated, `Interstate and White Waiting Room', and under color of Section 186, Tit. 48, 1940 Code of Alabama; and pursuant to their orders, plaintiffs and other Negroes who fail to observe said policy, custom, statute or usage are subject to arrest and confinement in jail." It elaborates on this by then asserting that the Commissioners "seek and have agreed among themselves to require obedience by the plaintiffs and others similarly situated, of a policy, custom, statute or usage, which requires segregation of the plaintiffs, or other Negro citizens similarly situated in the Terminal * * *."

Similarly, after describing the function and status of the Public Service Commission and the Commissioners, it charged in equally direct terms that such Commissioners, charged by law with the responsibility for administration and enforcement of Title 48, Section 186, of the 1940 Code of Alabama, a copy of which was annexed³ to the complaint, "* * * acting as State Officers and under the color of said provision of said Code of Alabama, have issued or caused to be issued, orders directing and requiring the segregation of Negroes in railroad waiting rooms."

The complaint next sets forth the status of the Terminal Company. Then, in a similar way, both affirmatively and negatively, it charges discriminatory compulsory segregation by the Terminal in the waiting rooms. It asserts that the Terminal "* * * has pursued and is pursuing a policy, custom, or usage of denying * * * plaintiffs and other Negroes similarly situated, the use of the waiting room at the * * * Terminal * * * designated `Interstate and White Passengers Waiting Room', and has pursued a policy of providing * * * plaintiffs and other Negroes similarly situated of waiting rooms on a segregated basis, all of which actions have been under color of and purported compliance with, Section 186, Tit. 48, 1940 Code of Alabama, and the orders of the Public Service Commission pursuant thereto, all * * * in violation of the rights guaranteed * * * Negroes under the Constitution * * *".

The District Judge, stating that "No * * * federal court has a right to adjudicate a difference or dispute of a hypothetical or abstract character," 149 F.Supp. 224, 225, apparently thought that these allegations presented only those of a proscribed hypothetical or abstract moot case. But under the rules so often repeated⁴ by us, and even more recently restated⁵ in Conley v. Gibson, 78 S.Ct. 99, 102, we see nothing hypothetical or academic about this claim as a pleading. In straightforward language which the plaintiffs seek to prove by evidence, they charge that pursuant to orders of the Public Service Commission acting presumably under Section 186, note 3, supra, the Public Service Commissions, the City Commissioners, and the Terminal are now following the custom, practice and usage of enforcing compulsory segregation by race in the Terminal waiting rooms.

The complaint is not, as the defendants urged and the Court apparently thought, subject to dismissal for formal deficiencies because, for example, it did not set forth the terms of the Commission's order or more fully describe the custom or usage. In the Federal civil procedure if these are general, there are ample discovery weapons to fill them out or in.

As a matter of fact, one could not more categorically charge that an order has been issued than to say just that. That is no conclusion, but an everyday statement of fact. So, too, is the charge that there is a custom and usage to compel segregation. If that is the custom and usage, how better could it be stated?⁶ It does not become an allegation of a mere conclusion simply because, when it comes to proof, there may be problems in marshaling evidence to support the claim of custom or usage. But it is not the less an adequate statement of the "fact" because the supporting evidence is not detailed or somehow described.

Once we are over the hurdle of the formal sufficiency of the pleading as a pleading, there can be no question that as to the Public Service Commissioners and City Commissioners, it states a justiciable claim within the Court's jurisdiction under The Civil Rights Acts. There is no intimation that these two groups of named individuals are doing what is complained of as individuals. On the contrary, it is clear that the opposite is charged — that these acts are being done by them as public servants. They are not therefore the "* * * acts of officers in the ambit of their personal pursuits which are plainly excluded." Screws v. United States, 325 U.S. 91, 111, 65 S.Ct. 1031, 1040, 89 L.Ed. 1495, 1508.

The Public Service Commissioners, as state officers, were obviously agents of the State of Alabama. Browder v. Gayle, D.C.Ala., 142 F.Supp. 707, affirmed 352 U.S. 903, 77 S.Ct. 145, 1 L. Ed.2d 114. So, too, were the City Commissioners since, in Alabama, 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. As to these, therefore, there was the requisite state action under the Fourteenth Amendment or 42 U.S.C.A. § 1983.

Nor can there be any serious question on the sufficiency of the allegations that these state acts were being done by each "under color of * * * statute" or "under color of any * * * custom, or usage, of a state * * *," 42 U.S.C.A. § 1983. The difficulty of the District Judge, on this point stems, we think, from his mistaken notion, several ways implied, that an action of a person cannot be state action (under color of law) if it is contrary to or in excess of authority granted under state law, or if the state law were invalid. On this approach, he then reasoned that since only the offending railroad can be criminally punished, Title 48, Alabama Code 1940, Section 428, for failure to obey the Section 186 Order of the Public Service, and the order could under no circumstance apply to interstate passengers and terminal facilities in view of the contrary ruling in N. A. A. C. P. v. St. Louis-San Francisco Ry. Co., 297 I.C.C. 335, and no Birmingham ordinance purported to forbid unsegregated waiting rooms, these officials could not have been acting under color of law.

But that is not the test. The Public Service Commission clearly had the general authority to issue orders. And the City Commissioners and policemen subordinate to them had general authority to make arrests.⁷ If these powers are being misused, either because beyond the power invested in them by the local law or because the use of that power deprives one of a constitutionally protected right, it is still under color of state law. For, "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken `under color of' state law." United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368, 1383.

If Public Service Commissioners issued orders as Commissioners to compel segregation, if City...