Hawkins v. Town of Shaw, Mississippi

• Citation: 303 F. Supp. 1162
• Decision Date: 18 September 1969
• Docket Number: No. DC 6737-K.,DC 6737-K.
• Parties: Andrew HAWKINS et al., Plaintiffs, v. TOWN OF SHAW, MISSISSIPPI, et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

303 F. Supp. 1162

Andrew HAWKINS et al., Plaintiffs, v. TOWN OF SHAW, MISSISSIPPI, et al., Defendants.

No. DC 6737-K.

United States District Court N. D. Mississippi, Delta Division.

September 18, 1969.

Reuben V. Anderson, Jackson, Miss., Jonathan Shapiro, New York City, for plaintiffs.

Ancil L. Cox, Jr., Cleveland, Miss., William Allain, Asst. Atty. Gen., Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

In this suit plaintiffs, who bring a class action for Negro citizens of the Town of Shaw, Mississippi, seek injunctive relief against defendants, the Town's Mayor, Clerk and five Aldermen,¹ under 42 U.S.C. § 1983, to restrain defendants from discriminating because of race and poverty in providing the inhabitants with certain municipal services, namely: street paving and street lighting, sanitary sewers, water mains and fire hydrants, and surface water drainage.² Defendants entered a denial to the charge that disparity of municipal services afforded to the town's inhabitants was the result of racial or economic discrimination. Following the adoption of a pre-trial order, a three day evidentiary hearing was conducted.

Incorporated in 1886, the Town of Shaw consisted originally of one square mile located in Bolivar County, Mississippi. Its territorial limits were not changed until 1965 when new subdivisions were added to the south and east of the original town extending into Sunflower County. The municipality is largely surrounded by Delta farms and plantations and its economy is almost wholly oriented to agriculture. The town's present population is estimated to be approximately 2500 persons, of which 1500 are Negroes and 1000 whites. There are approximately as many Negro citizens who are qualified to vote as there are white voters. The town's population was for years relatively static, showing little gain for the twenty year period, 1940-1960.³

Operating under a Code charter adopted pursuant to §§ 3374-34 et seq. of the Miss.Code of 1942, the town elects its Mayor, Clerk and Board of Aldermen to serve for terms of four years. Because of deaths and resignation, only two of defendant Aldermen have remained in office since the inception of their terms in July 1965.

There are various patterns of residential neighborhoods in the town. In some instances white and Negro residents live on the same streets, yet in other instances, particularly in the oldest and newest subdivisions, there are separate white and Negro neighborhoods. A significant portion of the Negro population resides in the town's peripheral or outer area, with substantial numbers of white people residing near the town's business or commercial center. Prior to 1965, many years had elapsed since the dedication of any new residential subdivisions for either race. Some of the older Negro neighborhoods were in subdivisions laid out many years ago, without zoning regulations, which resulted in houses being erected on exceedingly small lots abutting upon dedicated streets and alleys of inadequate narrow width. To some extent, the older white neighborhoods suffer from the same planning deficiency.

The town has sought to provide its inhabitants certain services, such as street paving and street lighting, a system of surface water drainage, water mains with fire hydrant protection, and since 1963 a sanitary sewerage system. The town's services and facilities are paid from revenues derived by imposition of ad valorem taxes and the sale of water and electricity to its citizens. There are no bonds outstanding, and the town has a $145,000 operating surplus.

Street paving. Six different paving projects, financed solely out of general revenues and without special assessments, have occurred at irregular intervals during the past 23 years. Of the approximately 11.8 miles of residential streets in the town, about one-half traverse white neighborhoods and one-half serve Negro neighborhoods. Some streets in both types of neighborhoods are not hard surfaced, but almost all those are gravelled. The streets yet remaining unpaved are largely those in the peripheral or outer areas of the town furthest removed from the central or business section. Initially, concrete paving was afforded to those streets serving commercial and industrial interests and to the areas nearest the town's center. In some cases this resulted in more street paving in white than Negro neighborhoods, but the paving actually done in the municipality was on the basis of general usage, traffic needs and other objective criteria. Residential neighborhoods not facing principal streets or thoroughfares long remained unpaved, regardless of their character as white or black neighborhoods. Also, these heavily traveled streets were later repaired and resurfaced in subsequent asphalt paving programs. The town employs a consulting engineer to study street improvement programs and make recommendations to the Mayor and Board of Alderman for priority of additional street paving projects. Modern street paving, beginning in 1956, included the paving that year of at least six streets located in predominantly black neighborhoods.⁴ In 1960, involving a small paving project, Doran Street was paved to benefit both black and white residents. The 1966 paving program included asphalting of Scott and Gale Streets in Negro neighborhoods, several streets in white neighborhoods, and resurfacing again of the older, more heavily traveled downtown streets. In 1967 street paving included, within Negro neighborhoods, the resurfacing of Gale Street, new paving on Scott, Lampton, Buckhalter and Cleveland Streets in the northeast section of the town. In the 1968 paving project, completed since this suit was filed, three additional Negro neighborhood streets, Rogers, Lipe and Kelly, in the same northeast sector have been paved with asphalt.⁵

The evidence shows that all street paving since 1956 has been with double surface asphalt of like quality in all neighborhoods and it must, for proper maintenance, be resealed every five years.

Street lights. The evidence shows that the town has ample lighting provided for the streets; that for the commercial streets and principal thoroughfares such lighting is provided by high intensity mercury vapor fixtures; that in some areas largely occupied by white residents the lighting fixtures house medium intensity mercury vapor lamps, while in the outlying and largely Negro neighborhoods bare bulb lighting is predominantly used. The brighter lights are provided for those streets forming either a state highway, or serving commercial, industrial or special school needs, or otherwise carrying the heaviest traffic load. While the more powerful equipment, only recently installed, does provide superior lighting, there is no showing that the lighting provided by bare bulbs is practically inadequate or that an insufficient number of such lights has been erected, or that detriment of any kind has been sustained by the town's inhabitants, white or Negro, as the result of inferior or inadequate street lighting.

Sanitary sewers. Prior to 1963 the town had no municipal sanitary sewerage system, and its more prosperous inhabitants relied upon septic tanks and privately installed facilities. The greater portion of the Negro families were without indoor plumbing and open ditch sewage existed, to a large degree, throughout the town. In 1963 a modern system complete with lagoon was constructed with drainage lines routed to practically all of the white residential areas as well as the more recent Negro subdivisions having better housing and indoor toilet facilities. Since 1965 the central sewerage system has been extended into various additional Negro neighborhoods. The only "Negro" areas presently remaining unserved by sanitary sewers are sections described generally as the Reeder Addition (Bryant and Dorsey Streets), Canal Street from Gale to the railroad, South Elm extended (1000 feet) and Rogers Street east of Highway 61. Part of the problem in reaching all older unserved areas has been the necessity for bringing this service into newer subdivisions developed for both races and brought into the town, as it is the town's firm policy to make sewer installations for all such new areas. The great majority of the town's Negro residents is afforded sewerage facilities although many such residences actually continue without indoor plumbing, not yet required by local law. The town's policy is to make additions to the sewerage system for extension of the service to all desiring to take advantage of it.

Surface water drainage. Having flat, nonporous soil with slow run-off conditions, Shaw suffers from drainage problems common to the Delta area. In the town proper, rain water is ultimately channeled into a bayou known as Porters Bayou,⁶ which intersects the middle of the town and some miles away empties into Sunflower River. The bayou's capacity is easily over-taxed due to inherent limitations, and frequent overflows occur in the town and impede drainage of storm waters. No basic relief to this situation will come about without major channel improvement and dredging to the mouth of the Sunflower River, which is well outside the town's corporate limits. Underground storm sewers exist largely in the town's areas south of Porters Bayou and drainage ditches have also been constructed, but these afford inadequate relief because of the inferior outlet sources for rain and storm water.

Water mains and fire hydrants. Water is supplied from several deep wells to all town inhabitants. A flat consumer's charge is made; there are no water meters, nor any effective control for possible water waste. No inhabitant is without water brought to his residence. Water mains have been laid throughout the town, consisting of 4" and 6" water pipes. As the municipal water wells are located in the south-central portion, water mains must radiate from this point and diameter of mains increased from the well to outlet....