Dilworth v. Riner

• Citation: 343 F.2d 226
• Decision Date: 18 March 1965
• Docket Number: No. 22008.,22008.
• Parties: Lee F. DILWORTH et al., Appellants, v. T. N. RINER, Owner of Tom's Restaurant, et al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

343 F.2d 226 (1965)

Lee F. DILWORTH et al., Appellants, v. T. N. RINER, Owner of Tom's Restaurant, et al., Appellees.

No. 22008.

United States Court of Appeals Fifth Circuit.

March 18, 1965.

COPYRIGHT MATERIAL OMITTED

Melvin Zarr, New York City, Henry M. Aronson, R. Jess Brown, Jackson, Miss., Michael Meltsner, New York City, Harold H. Greene, Atty., Dept. of Justice, Washington, D. C., Jack Greenberg, New York City, for appellants.

C. R. Bolton, Tupelo, Miss., Robert D. Patterson, Aberdeen, Miss., for appellees. Burke Marshall, Asst. Atty. Gen., H. M. Ray, U. S. Atty., Harold H. Greene, Peter S. Smith, Bernard J. Haugen, Attys., Dept. of Justice, Washington, D. C., for the United States as amicus curiae.

Before BROWN and BELL, Circuit Judges and HUNTER, District Judge.

GRIFFIN B. BELL, Circuit Judge.

This appeal is from the denial of a temporary restraining order by the District Court. It was sought under a complaint filed by eighteen Negro citizens on September 22, 1964. The complaint was based on activity which occurred on September 5, 1964. The appeal presents a question of first impression under the Civil Rights Act of 1964, i. e., whether the Act constitutes congressional authorization for the staying of state prosecutions by federal courts. The question is presented within the context of 28 U.S. C.A. § 2283, in pertinent part as follows:

"A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, * * *."

On September 5, 1964 appellants requested service in Tom's Restaurant in Aberdeen, Mississippi. Their purpose in going to the restaurant was to enforce their right of access to places of public accommodation under the Civil Rights Act of 1964. They were told by the waitress that they would only be served in that section of the restaurant reserved for Negroes. They refused to go to that section and were thereupon requested to leave. Upon their refusal to leave, they were arrested by city police and a deputy sheriff, and incarcerated. They were charged with having refused to leave premises after having been requested to do so in violation of § 2087.5 of the Mississippi Code, a crime of the breach of the peace type, and were to be tried therefor in the Justice of the Peace Court in Aberdeen.

This action was instituted against the Monroe County sheriff and deputy sheriff, the Chief of Police of Aberdeen, the judge and prosecuting attorney of the court in which the charges were pending, and the owner of the restaurant. The relief sought included prayers for a temporary restraining order enjoining the further prosecution of appellants, their trial being set for October 7, 1964, and for a permanent injunction against the withholding of their right under Title II of the Civil Rights Act of 1964 to the accommodations of the restaurant. The District Court was of the view that it was proscribed in the premises by § 2283, supra, and denied the temporary restraining order after a full hearing. It was stipulated during the hearing, for the purposes of the motion, that Tom's Restaurant was a place of public accommodation subject to the Civil Rights Act. And the evidence was clear that the sit-ins in question were peaceable. Thereafter, and after notice of appeal to this court, an informal agreement was reached between the parties that prosecution of appellants would be withheld pending the appeal.

Two issues, to be discussed seriatim, are presented for decision. First, it is urged that the order denying the temporary restraining order is non-appealable and hence this court is without jurisdiction. The second involves the merits, whether the District Court was empowered to issue a temporary restraining order, assuming that it was otherwise warranted. This latter issue involves not only the inhibitions of § 2283, but the additional contention that the requested restraining order was barred by the rules of comity. Douglas v. City of Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 877, 87 L. Ed. 1324.

I.

The issue necessarily preliminary is whether the order here complained of is appealable. The request for relief was framed in terms of a temporary restraining order. It went only to the question of the prosecutions. The relief directed to acquiring public accommodation rights, in the form of a prayer for permanent injunction, was not considered at the hearing on the motion for temporary relief. The motion before us was referred to by the parties and the court as a motion for temporary restraining order. This terminology is to be distinguished from interlocutory orders such as those granting or denying preliminary injunctions which are appealable. 28 U.S.C.A. § 1292(a) (1); Deckert v. Independent Share Corp., 1941, 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed.2d 189; Stell v. Savannah-Chatham County Board of Education, 5 Cir., 1963, 318 F.2d 425. And while a temporary restraining order as such is not appealable, there is respectable authority for the proposition that the appealability of an order does not necessarily depend upon the terminology used by the parties or the court, but upon the substance of the proceeding below. Western Union Telegraph Co. v. United States & Mexican Trust Company, 8 Cir., 1915, 221 F. 545, 553; Connell v. Dulien Steel Products, 5 Cir., 1957, 240 F.2d 414, 418, (rule recognized but not applied).

It is urged that the substance of the proceedings below was to deny a preliminary injunction and not merely to deny a temporary restraining order. It is true that a temporary restraining order is generally issued ex parte or after a hearing of a summary character. Connell v. Dulien Steel Products, supra; 7 Moore, Federal Practice, pp. 1642-1643; 3 Federal Practice and Procedure, Barron and Holtzoff, Wright Ed., § 1432. There are two practical reasons for not allowing an appeal from such an order. Under Rule 65(b), F.R.Civ.P., such an order expires not later than twenty days after issuance during which time an appeal is not normally feasible; and the trial judge has not normally had the advantage of a hearing on the facts and the applicable law. Orderly procedure requires that the trial judge be permitted to pass on the question presented before his decision is reviewed by a higher court. Connell v. Dulien Steel Products, supra; Pan American World Airlines v. Flight Engineers International Association, 2 Cir., 1962, 306 F.2d 840, 842-843; and see 3 Federal Practice and Procedure, supra, § 1440. As Professor Wright noted in § 1432, where the opposing party has notice of the application for a temporary restraining order, "* * * such order does not differ functionally from a preliminary injunction, * *"

In the Dulien Steel Products case the order was issued on the day the complaint was filed and after only a summary hearing. Here the District Court held a full scale hearing on the third day after the filing of the complaint. Five witnesses for appellants and three for appellees testified, and the court heard argument of counsel before denying the request for the temporary restraining order. It was in substance and result a hearing on and the denial of a preliminary injunction, and we treat the order as such and hence as appealable under 28 U.S.C.A. § 1291.

Another valid ground of appealability of the order is the fact that the result of the denial of the relief sought by appellants was to immediately send them to trial in the state court. Thus their substantial rights, the nature of which will be discussed hereinafter, were determined in a manner that would have rendered their federal cause of action moot, and the denial of the relief sought may be equated with a pro tanto dismissal of the complaint. This is the rationale of United States v. Wood, 5 Cir., 1961, 295 F.2d 772, 778, certiorari denied, 369 U.S. 850, 82 S.Ct. 933, 8 L.Ed.2d 9; and Woods v. Wright, 5 Cir., 1964, 334 F.2d 369, 372-374. See also Cohen v. Beneficial Industrial Loan Corp., 1949, 337 U. S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528, where the Supreme Court approved a practical construction of § 1291.

II.

The next questions to be determined go to the merits. Does Title II of the Civil Rights Act of 1964, the public accommodations section of the Act, constitute the requisite express authorization for a federal court to enjoin the prosecution in a state court of conduct limited to claiming rights under the Act? Title II consists of §§ 201 through 207.

The right which appellants were attempting to secure arose under § 201(a) of the Act:

"All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination or segregation on the ground of race, color, religion, or national origin."

Section 201(b) (2) includes restaurants. § 203(c) provides:

"No person shall * * * punish or attempt to punish any person for exercising or attempting to exercise any right or privilege secured by section 201 * * *."

Section 204(a) provides:

"Whenever any person has engaged * * * in any act or practice prohibited by Section 203, a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved * * *."

Section 207(a) vests jurisdiction of such actions in the District Courts of the United States.

However, before going further, we must dispose of the contention of appellees that the Civil Rights Act would not serve to avoid the state prosecutions for the reason that the prosecutions were unrelated to the rights being claimed under the Act. This argument proceeds on the theory that the assertion or claim of accommodation rights by appellants had ended upon the refusal of the waitress to serve them, and that it was their duty then to enforce their rights in court and not through the medium of self-help by...