Holmes v. Wallace, Civ. A. No. 75-390-N.
| Court | United States District Courts. 11th Circuit. Middle District of Alabama |
| Citation | 407 F. Supp. 493 |
| Docket Number | Civ. A. No. 75-390-N. |
| Parties | Alvin A. HOLMES, Individually and as a Representative in the Alabama State Legislature, Plaintiff, v. George C. WALLACE, Individually and as Governor of the State of Alabama, et al., Defendants. |
| Decision Date | 12 February 1976 |
407 F. Supp. 493
Alvin A. HOLMES, Individually and as a Representative in the Alabama State Legislature, Plaintiff,
v.
George C. WALLACE, Individually and as Governor of the State of Alabama, et al., Defendants.
Civ. A. No. 75-390-N.
United States District Court, M. D. Alabama, N. D.
February 12, 1976.
Solomon S. Seay, Jr., Gray, Seay & Langford, Montgomery, Ala., for plaintiff.
Charles M. Crook, Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., for defendants.
ORDER
VARNER, District Judge.
This cause is now presented upon the motion to dismiss filed herein November 18, 1975, as amended January 7, 1976, upon which oral argument was heard in this Court on January 16, 1976. The action is brought upon two theories of liability. Plaintiff alleges that the flying of the flag of the former Confederate States of America immediately below that of the State of Alabama on a halyard atop the Alabama State Capitol in Montgomery, Alabama, together with the flying of the United States flag elsewhere on the Capitol grounds at an elevation lower than that occupied by the Confederate flag, constitutes a violation of 36 U.S.C. § 175 which provides, in pertinent part, as follows:
"No person shall display the flag of the United Nations or any other national or international flag equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States at any place within the United States or any Territory or possession thereof: Provided, That nothing in this section shall make unlawful the continuance of the practice heretofore followed of displaying the flag of the United Nations in a position of superior prominence or honor, and other national flags in positions of equal prominence or honor, with that of the flag of the United States at the headquarters of the United Nations."
Plaintiff alleges that this Court has jurisdiction by virtue of 28 U.S.C. § 1331 to remedy this alleged violation of the Federal Flag Code. He further alleges that the display of flags above described is also a violation of his rights under the Thirteenth and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983 and § 1985, claiming jurisdiction pursuant to 28 U.S.C. § 1343.
In reply to Plaintiff's claim that the Defendants are in violation of § 175(c) which constitutes a part of the so-called "flag code" of the United States, Defendants maintain among other contentions that § 175(c) provides no sanctions against violators and was not intended to proscribe but merely to prescribe conduct and that Plaintiff has no standing to complain of the alleged violation of this section.
It appears that § 175(c) has been considered by only three reported cases, only two of which are federal cases, even though it has been on the law books in its present form since 1953. Both federal cases, however, have concerned the same portion of the section involved in this action.
Concerning the absence of statutory sanctions against noncompliance with the
"There is yet another reason for dismissing the complaint herein. The action is founded upon the defendant's alleged violation of 36 U.S.C.A. § 175(c) (1953). Title 36 is not intended to proscribe behavior. It is fashioned as an expression of prevalent custom regarding the display of the American flag. Section 173 thereof so stated: `The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States.'
"It is apparent that the sections are a codification of existing `rules and customs' and are intended for the `use' of people not required to conform with other regulations. If the purpose is to compel certain behavior then the selection of the word `use' is odd draftsmanship. Further, § 175(c) provides that `no other flag * * * should be placed above' the American flag. Again, a strange choice of language if the codification is intended to mandate behavior and not merely to influence it.
"Further, whenever in Title 36 certain behavior was intended to be absolutely proscribed a specific section followed attaching penalties. For example, § 182(a-c) relates to service lapel buttons and who is entitled to wear them. Immediately following these sub-sections appears § 182d which provides the penalties for violation of § 182(a-c). If Congress specifically provided for penalties to attach to § 182(a-c) and did not so provide with regard to § 175 then the implication is clear that § 175 was intended merely as an expression of proper usage, not to mandate behavior." At page 310.
In Doyle v. Fleming, 219 F.Supp. 277 (D.Canal Zone, 1963), the Court considered a challenge to the practice of the Governor of the Canal Zone in flying the flag of the Republic of Panama at an equal height with and alongside that of the United States of America. The Court concluded that, because the practice alleged by plaintiff did not come within the prohibition of § 175(c), plaintiff did not make out a cause of action under the statute:
"It is therefore quite clear that the `equal height' interpretation of the plaintiff is erroneous and the position of honor at the right of the Panamanian flag is in compliance with the statute. As plaintiff complains only of the `equal height', he has not made out a cause of action and his complaint must fail on...
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Murphree v. Tides Condo. at Sweetwater, Case No. 3:13-cv-713-J-34MCR
...its counterclaim." Id. In reaching its decision, the Dimmitt court cited with approval the district court decision in Holmes v. Wallace, 407 F. Supp. 493 (D. Ala. 1976), aff'd, 540 F.2d 1083 (5th Cir. 1976);16 see Dimmitt, 985 F.2d at 1573.17 In Holmes, the court held that the Flag Code pro......
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N.A.A.C.P. v. Hunt, 89-7245
...1 the Thirteenth Page 1559 and Fourteenth Amendments, and 42 U.S.C.A. §§ 1983 and 1985. 2 The district court held in Holmes v. Wallace, 407 F.Supp. 493 (M.D.Ala.), aff'd without published opinion, 540 F.2d 1083 (5th Cir.1976) that: (1) section 175 of the Flag Code was merely intended to be ......
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Sadlier v. Payne, 2:97-CV-0527J.
...flag. This part of Title 36, commonly known as the "flag code," is not, however, intended to proscribe conduct. See Holmes v. Wallace, 407 F.Supp. 493, 496 (M.D.Ala.), aff'd, 540 F.2d 1083 (5th Cir.1976) (Mem.). The repeated use of the word "should" throughout § 176 indicates a lack of pena......
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Dimmitt v. City of Clearwater, 92-2060
...may found its counterclaim. 7 The district court therefore properly dismissed Count I of the City's counterclaim. See Holmes v. Wallace, 407 F.Supp. 493, 495 (M.D.Ala.), aff'd without published opinion, 540 F.2d 1083 (5th Cir.1976) (NAACP had no remedy under 36 U.S.C. § 175(c) against displ......