Baldwin v. Morgan

• Citation: 287 F.2d 750
• Decision Date: 17 February 1961
• Docket Number: No. 18280.,18280.
• Parties: Carl L. BALDWIN and Alexinia Baldwin, Appellants, v. J. W. MORGAN et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

287 F.2d 750 (1961)

Carl L. BALDWIN and Alexinia Baldwin, Appellants, v. J. W. MORGAN et al., Appellees.

No. 18280.

United States Court of Appeals Fifth Circuit.

February 17, 1961.

Oscar W. Adams, Jr., Birmingham, Ala., for appellant.

J. Asa Rountree, Jos. F. Johnston, Birmingham, Ala., for appellee, Birmingham Terminal Co., Cabaniss & Johnston, Birmingham, Ala., of counsel.

Gordon Madison, Asst. Atty. Gen., MacDonald Gallion, Atty. Gen., William F. Black, Montgomery, Ala., for Morgan, Connor and Waggoner.

J. M. Breckenridge, Asst. City Atty., Birmingham, Ala., for Alabama Public Service Comm.

Before RIVES, BROWN and WISDOM, Circuit Judges.

JOHN R. BROWN, Circuit Judge.

This case presents again the question of asserted unlawful segregation of races in the Railroad Terminal Station at Birmingham, Alabama. After a trial following our remand, Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780, the District Court denied all relief sought by the Negro plaintiffs against the City Commissioners, the Alabama Public Service Commission, and the Birmingham Terminal Company, a private corporation.¹ The fact findings after a full trial come here with the insulation of F.R.Civ.P. 52(a), 28 U.S.C.A. While we reach a conclusion contrary to that of the District Court, we do so on the basis of the facts which are substantially without controversy. We do not credit any evidence either expressly or impliedly rejected by the District Judge.²

We think that a basic error in the District Court's action was the assumption that all that was involved was forcible segregation of the races and not other practices related to race and color which were equally impermissible under the Fourteenth Amendment and the Civil Rights Acts, 42 U.S.C.A. § 1981, § 1983. As to each defendant this led the Court to focus on the issue of whether segregation was compulsory. Finding, as it did, that while separate facilities were to be and were furnished for the use of the races, neither the Commission, the City nor the Terminal coercively compelled occupancy of one to the exclusion of the other, the Court concluded that no case was made out. No doubt this was the main thrust of the plaintiff's complaint as the analysis of it in our prior opinion reflects. But this approach failed to take into account or properly evaluate in the light of federal constitutional requirements the virtually uncontradicted state action in which race was the significant factor. It also seems quite clear that despite Browder v. Gayle, D.C.M.D. Ala.1956, 142 F.Supp. 707, affirmed 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114, the defendants, if not the Court, labored under the misconception that race as an impermissible basis for distinction related to interstate commerce only and not to intrastate passengers.

The significant physical facts are simple and undisputed. The Terminal, a private corporation owned by specified railroads serving Birmingham, maintains a passenger station for arriving and departing passengers. This includes waiting rooms and the usual facilities for travelers as well as those of the public who are there awaiting the arrival or departure of passengers. There are two main but separate waiting rooms. Each is directly accessible through separate entrances on the track side of the depot and the street side. Over at least one entrance on the track concourse side, and again on the street side, signs were posted marking one as the Negro waiting room and the other for whites. As to one, the legend in large letters read:

"Colored Intrastate Passengers Waiting Room."

Over the other the sign read:

"Waiting Room Interstate and White Intrastate Passengers."

The Public Service Commission.

Whether, as suggested by the Terminal, the signs are merely intended by it as an invitation to each of the races to occupy these facilities separately provided in order to permit voluntary acceptance of traditional social customs of the South is not significant so far as the Commission is concerned. The Commission, an arm of the State of Alabama, pursuant to a specific statute is authorized to require separate waiting rooms.³ And it has done so by mandatory official regulation published as early as 1923.⁴ Moreover, because of intervening decisions forbidding racial discrimination as to facilities employed in interstate commerce⁵ the Commission in 1956 made the requirement even more emphatic. Of dominant significance for our purposes, the Commission's new Order T-21 required, for the first time, the posting of signs — in lettering of "contrasting color" clearly visible for at least fifty feet — to mark the separate rooms maintained for each of the races.⁶ The Commission both in its contentions generally and in objections to admissibility of the regulations, recognized that as to interstate commerce neither the statute nor the regulations could survive in the face of the contrary and superior rulings (see note 5, supra). But as to intrastate passengers it either took the view that somehow the regulation was valid or at least the Baldwins as victims of discrimination during interstate commerce were not in a position to assert this as a class suit for intrastate travelers.

But the vice here is not the impermissible distinction between inter and intrastate commerce or even the absence of an explicit purpose coercively to compel segregated occupancy (as distinguished from the maintenance of separate rooms). What is forbidden is the state action in which color (i. e., race) is the determinant. It is simply beyond the constitutional competence of the state to command that any facility either shall be labeled as or reserved for the exclusive or preferred use of one rather than the other of the races. Certainly the state may not directly or through a municipality prescribe that a certain area of the city is to be inhabited by Negroes, another by whites, or that such areas are to be so marked even though no sanctions are imposed as to occupancy. Cf. Shelley v. Kraemer, 1948, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161; Harmon v. Tyler, 1926, 273 U.S. 668, 47 S.Ct. 471, 71 L.Ed. 831, reversing 160 La. 943, 107 So. 704, first appeal 158 La. 439, 104 So. 200; Buchanan v. Warley, 1917, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149. The factor of race is irrelevant from a constitutional viewpoint. Boson v. Rippy, 5 Cir., 1960, 285 F.2d 43 and see especially supplemental opinion December 7, 1960. And in testing state action, we have recognized that there may be need of the "protection of a court order making certain that the factor of race would not be a consideration. * * *" and that there be "a decree of the trial court prohibiting the consideration of * * * race * * * as a relevant factor * * *" Mannings v. Board of Public Instruction, 5 Cir., 1960, 277 F.2d 370, 375.

This is not to say that integration in all activities must be governmentally compelled. We, and others, have clearly indicated to the contrary. City of Montgomery, Alabama v. Gilmore, 5 Cir., 1960, 277 F.2d 364, at page 369 and notes 5 and 6. But the State may not either compel segregation in use or the maintenance or making of separate facilities where the criteria is race or color.

It follows that the orders of the Commission as well as the underlying statute (note 3, supra) are constitutionally invalid insofar as they require that the Terminal provide, maintain and mark separate facilities on the basis of race. This is so without regard to whether in fact the segregated use or occupancy of such waiting rooms is coercively compelled either by the Commission, the City or the Terminal. On remand, appropriate injunctive and declaratory orders should issue.

The Birmingham Terminal Company.

In assaying the position of the Terminal the trial seemed preoccupied with efforts to tie the Terminal into action by police officers of the City. Presumably this was to make out State action. See, e. g., 251 F.2d 780, 788 and notes 8-11. This was in response to the contention and proof offered by the Terminal that it was indifferent to where Negroes sat — either in the "Interstate and White" or "Colored Intrastate" waiting rooms — and without regard to their status as inter or intra-state travelers. We accept⁷ the District Court's finding that the proof did not show a sufficient connection between acts of City officers and the Terminal concerning any custom or practice or usage to compel Negroes to occupy the waiting room.

But again this approach was too narrow. The Terminal was admittedly a public utility holding itself out to serve all of the traveling public desiring to use the railroads operating through this station in Birmingham.⁸ As we pointed out at some length in Boman v. Birmingham Transit Company, 5 Cir., 1960, 280 F.2d 531, 535, one engaged in Alabama as a public utility "is doing something the state deems useful for the public necessity or convenience." When in the execution of that public function it is the instrument by which state policy is to be, and is, effectuated, activity which might otherwise be deemed private may become state action within the Fourteenth Amendment. And whether it is state policy is to be determined by the nature of the activity in terms of the governmental nature of the function and not the mere presence or absence of power in the state's vicarious "agent" to impose criminal sanctions. So much is clear from Smith v. Allwright, 1944, 321 U.S. 649, 658, 663, 64 S.Ct. 757, 88 L.Ed. 987, 994, 997. To this may be added Terry v. Adams, 1952, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 and many others.⁹ Boman v. Birmingham Transit Co., supra, is not to the contrary.

Here the statute infuses the Commission with power to prescribe that carriers shall maintain separate waiting rooms and this power has been effectuated by the issuance of regulations that leave nothing to the imagination. The last order compels the posting of visible signs clearly indicating which waiting room is for whites and which is for...