Barnes v. City of Gadsden, Alabama

• Decision Date: 04 September 1959
• Docket Number: No. 17534.,17534.
• Citation: 268 F.2d 593
• Parties: E. F. BARNES, J. C. Carson, J. Jelks and J. Robertson, Appellants, v. CITY OF GADSDEN, ALABAMA, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

268 F.2d 593 (1959)

E. F. BARNES, J. C. Carson, J. Jelks and J. Robertson, Appellants, v. CITY OF GADSDEN, ALABAMA, et al., Appellees.

No. 17534.

United States Court of Appeals Fifth Circuit.

June 30, 1959.

Rehearing Denied September 4, 1959.

Arthur Burns, Gadsden, Ala., for appellants.

John A. Lusk, Jr., W. B. Dortch, Gadsden, Ala., Dortch, Allen & Meighan, Lusk, Swann & Burns, Gadsden, Ala., of counsel, for appellees.

Before RIVES, CAMERON and JONES, Circuit Judges.

RIVES, Circuit Judge.

This appeal is from a final judgment for defendants. The plaintiffs seek a declaration and injunction against the execution and putting into effect of certain urban redevelopment plans of the City of Gadsden, Alabama, attacked upon the ground that they foster enforced racial segregation. The district court entered judgment in favor of defendants pursuant to findings of fact and conclusions of law, now reported in 174 F.Supp. 64, with which all of the members of this Court were tentatively in agreement in our first conference following the argument and submission of this appeal. After further study and more mature deliberation, Judges Cameron and Jones adhere to that view while the writer concurs in part and dissents in part for reasons separately stated. The judgment is therefore

Affirmed.

RIVES, Circuit Judge (concurring in part and dissenting in part).

A careful study of the record and exhibits has convinced me that there are controlling additional facts, themselves either undisputed or conclusively established, which were not noted in the district court's findings of fact. Recognizing the importance of this litigation to the public, as well as to the litigants, I have set forth those facts at considerable length in an appendix to this opinion. Excluding those items of doubtful value or of questionable admissibility, but otherwise carefully considering the entire record, I cannot escape the conclusion that actual segregation is contemplated. So long as that is voluntary, rather than governmentally enforced, there can be no constitutional objection. As we said in Cohen v. Public Housing Administration, 5 Cir., 1958, 257 F.2d 73, 78:

"Mr. Stillwell\'s testimony has been noted (footnote 7, supra) to the effect that in his opinion actual segregation is essential to the success of a program of public housing in Savannah. If the people involved think that such is the case and if Negroes and whites desire to maintain voluntary segregation for their common good, there is certainly no law to prevent such cooperation. Neither the Fifth nor the Fourteenth Amendment operates positively to command integration of the races but only negatively to forbid governmentally enforced segregation.11

"11. Cf. Avery v. Wichita Falls Independent School District, 5 Cir., 1957, 241 F.2d 230, 233; Rippy v. Borders, 5 Cir., 1957, 250 F.2d 690, 692."

That governmentally enforced segregation in housing is unconstitutional has now been settled beyond controversy.¹ The cases just cited in footnote 1 make clear that a State agency has no constitutional power to oust persons of one race from their homes and thereafter forcibly to restrict the land to the exclusive occupancy of persons of another race. Ultimately then, the issue on its merits must turn upon whether the contemplated actual segregation is to be voluntary or governmentally enforced. At the present stage the plaintiffs and the defendants face real, though different, dilemmas in reaching that issue. The plaintiffs feel that they cannot wait longer. As their attorney stated to the district court:

"Mr. Burns: That is the very reason why we have to do this now. If we wait until the private developers get it into their hands, it\'s too late.

"In that Levitown case, where the Court said that the Court would not require the private developer to sell; allowed him to discriminate, where it was without dispute that he was discriminating and the Court let him do it."

In its conclusion of law the district court recognized, if it did not resolve, the plaintiffs' dilemma 174 F.Supp. 67:

"The Court concludes from an analysis of plaintiffs\' complaint, evidence and arguments that their claim for relief is grounded primarily on the apprehension that when the two areas are cleared and rehabilitated and sold to private interests under legitimate restrictions as to use that plaintiffs and members of their class will not be able to purchase property in the Birmingham Street Area because of their race or color, Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, 14 A.L.R.2d 133, certiorari denied 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385, and that if they purchase homes in the North Fifth Street Area they will be racially segregated in that area, and, therefore, they should be delivered from the apprehension of this possible dilemma by injunctive relief, preventing the carrying out of the plans which, they insist, constitute a scheme and design for initiating, enforcing, extending and perpetuating racial segregation in residential areas of Gadsden in violation of their constitutional rights. Otherwise, they see no escape from their anticipated predicament once the properties are sold to private interests; and they are fearful in that event that their last state will become worse than their first.

* * * * * *

"If the Court assumes that private interests will restrict sales in the Birmingham Street Area to white people and the North Fifth Street Area to colored people, such sales would not be actions under color, authority, or constraint of state law, nor would they be the performances of functions of a governmental character. Dorsey v. Stuyvesant Town Corp., supra, Johnson v. Levitt & Sons, Inc., D.C.E.D.Pa., 131 F.Supp. 114."

The defendants, on their part, stoutly deny that any enforced segregation is contemplated. Their brief states:

"In this case no one is compelled to occupy the new houses to be constructed, and no one is prohibited from purchasing such houses; anyone buying any of the property will have to buy it with full knowledge that there can be no discrimination in the future.

* * * * * *

"The court should assume that the defendants, their agents and successors in office, after receiving the federal assistance in this public project, will, upon completion of this project, or in carrying it out, recognize the law to the effect there can be no governmentally enforced segregation solely because of race or color. Tate v. City of Eufaula Alabama, D.C., 165 F.Supp. 303."

The defendants point out that the plaintiffs may not, when the time comes, want to move back into either of the Areas:

"* * * it boils down to the question of whether a complaint based on plaintiffs\' alleged fears that they may not be able to repurchase land in the redeveloped area states a cause of action upon which relief can be granted. It is obvious that such redevelopment cannot be accomplished in a short period of time. It is equally obvious that not only plaintiffs but all occupants of the North Fifth Street area and the Birmingham Street area must be moved and relocated pending such clearance. It is by no means clear that plaintiffs or any of the occupants of these areas will even want to move back into such areas after redevelopment. Yet these plaintiffs are insisting that the entire slum clearance project be stopped on such a complaint."

I agree that the serious injury which the public may suffer from the stoppage of the slum clearance projects, and the desire to afford every opportunity for the voluntary cooperation of the members of all races for their common welfare and betterment are potent factors tending to cause the Court to exercise its discretion to deny an injunction at the present stage of development of the plans. As said by Judge Sibley, speaking for this Court in Kelliher v. Stone & Webster, 5 Cir., 1935, 75 F.2d 331, 333, 334:

"* * * and when a public improvement is sought to be stopped, the inconvenience to the public, as weighed against a slight or remediable wrong to the plaintiff, may determine the court of equity against this discretionary remedy."

The injury which the plaintiffs anticipate, namely, that they may be forced to dispose of their homes for an unconstitutional purpose, cannot be called slight. Rather, the questions are whether the plaintiffs will suffer a legal wrong and whether, at the present stage, their plight is irremediable. If irreparable injury to the plaintiffs will ensue, and if such injury cannot be otherwise prevented, then a suit for injunction restraining the carrying out of the plans is appropriate to present the question of a proposed unlawful exercise of the power of eminent domain for the purpose of subjecting the property taken to a racially discriminatory and unconstitutional use.²

The "Controls on Redevelopment," including the requirement of an anti-racial covenant, go a long way to protect the plaintiffs from governmentally enforced segregation. They do not, however, afford adequate protection if the redeveloper is free to restrict sales in the Birmingham Street Area to white people and in the North Fifth Street Area to Negroes. Enforced segregation might well be the practical result, whether or not so intended by the defendants. The plaintiffs might derive some small comfort from hearing a court tell them that their segregation was privately enforced rather than governmentally enforced. They might still feel that they stood equal before the law.

While the district court entered formal judgment for the defendants, it did not in fact decline to make any declaration of the rights of the parties, but in those parts of its conclusions of law which I have quoted, 174 F.Supp. at page 68, as construed in connection with the cases cited, it held that the redeveloper is a mere private individual and as such free to discriminate in sales to persons of different races. For reasons presently to be stated, I do not agree with that conclusion, but, by the same...