McCain v. Davis, Civ. A. No. 12937

Decision Date15 May 1963
Docket NumberCiv. A. No. 12937,12940.
Citation217 F. Supp. 661
PartiesJames T. McCAIN, Plaintiff, v. James H. DAVIS et al., Defendants. Daisy BATES, Plaintiff, v. SHERATON CORPORATION OF AMERICA, a Corporation, et al., Defendants.
CourtU.S. District Court — Eastern District of Louisiana


Benjamin E. Smith, Robert Collins, Nils R. Douglas, Alvin B. Jones, New Orleans, La., for plaintiff, James T. McCain.

A. P. Tureaud, Ernest N. Morial, A. M. Trudeau, Jr., New Orleans, La., Leroy D. Clark, New York City, for plaintiff, Daisy Bates.

L. K. Clement, Jr., Henry J. Roberts, Jr., Asst. Attys. Gen., for state of Louisiana.

Waverly A. Henning, Gretna, La., for Frank H. Langridge in Civ. A. 12940.

Harry McCall, Jr., New Orleans, La., for Hilton Inns, Inc. and Sheraton Corp. of America.

Ernest L. Salatich, Beuker Amann, New Orleans, La., for Jos. Giarrusso, Victor H. Schiro, James H. Fitzmorris, and others.

Dean A. Andrews, New Orleans, La., for John J. Fitzgerald, Sheriff of Jefferson Parish in Civ. A. 12940.

Robert E. LeCorgne, Jr., New Orleans, La., for Royal Orleans, Inc.

Frank J. Shea, Philip J. Foto, New Orleans, La., for Jim Garrison.

Before WISDOM, Circuit Judge, and CHRISTENBERRY and WEST, District Judges.

WISDOM, Circuit Judge.

These two cases raise an important Fourteenth Amendment question: the applicability of the Equal Protection and Due Process Clauses to a state law forbidding "white" hotels to provide accommodations for Negroes. It was in the cards that sooner or later the question would someday be put to the Court. It was in the cards too that the Court would give the answer we give here.

The Negro plaintiffs in these two class actions allege that certain New Orleans hotels, acting under the compulsion of a Louisiana criminal statute, LSA-R.S. 14:317, refused them accommodations because they were Negroes. The defendant hotel companies admit this. They say that the statute gave them no alternative.

Each complaint joins as co-defendants certain public officials responsible for law enforcement. These officials neither affirm nor deny the plaintiffs' allegations of fact. The State of Louisiana, through the Attorney General, and the Sheriff and the District Attorney of Jefferson Parish construe the law as inapplicable to hotels. The City of New Orleans, the Superintendent of Police, and the District Attorney for the Parish of Orleans argue that the statute applies to hotels and contend that it is constitutional.

The plaintiffs ask for a declaratory judgment declaring LSA-R.S. 14:317 unconstitutional and for a preliminary and permanent injunction enjoining the defendants from acting under LSA-R.S. 14:317 to deny accommodations to Negroes at hotels. On the application of plaintiff McCain, a three-judge court was invoked and convened under 28 U.S.C. §§ 2281 and 2284. Plaintiff Bates opposes such a court on the ground that there is no substantial question as to the unconstitutionality of the statute. Because of common questions of law arising from substantially similar fact-patterns, the cases were consolidated. All of the parties stipulated to submit the case on the admissions in the pleadings. May 3, 1962, in open court, with all of the parties present through counsel, the three-judge court heard oral argument on the legal issues.

The Court dismisses the members of the Commission Council of the City of New Orleans as parties defendant, individually and as Councilmen, because individually and collectively they are unable to give the relief sought. The Court holds that LSA-R.S. 14:317 is unconstitutional and, except as to the members of the Commission Council, grants the injunction as prayed for by the plaintiffs.


The Court has misgivings as to the necessity for a three-judge Court.

The Supreme Court has held that when the first issue is one of "Statutory construction even though perhaps eventually leading to a constitutional question", the case should be decided by a single judge. Kesler v. Department of Public Safety, 1962, 369 U.S. 153, 82 S.Ct. 807, 7 L.Ed.2d 641. The three-judge procedure is a drain on federal judicial manpower, and should not be invoked on a constitutional question that is merely contingent. See, for example, International Ladies' Garment Workers Union v. Donnelly Garment Co., 1938, 304 U.S. 243, 251, 58 S.Ct. 875, 82 L.Ed. 1316. Moreover, Section 2281 does not require a three-judge court when there is no substantial constitutional question. Turner v. Memphis, 1962, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762; Bailey v. Patterson, 1962, 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512; Ex parte Poresky, 1933, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152.

On the other hand, the three-judge procedure is designed as a safeguard against "improvident state-wide doom by a federal court of a state's legislative policy."1 The Court's decision in this case dooms the long-standing state-wide custom, sanctioned by statute, that "white" hotels may not accept Negro guests. Doors closed to Negroes in Louisiana since Reconstruction will be opened. Although the narrow question before the Court relates only to the constitutionality of LSA-R.S. 14:317, the application of the Equal Protection Clause to such public accommodations as hotels is certain to suggest new and now only dimly discernible questions having far-reaching legal and social consequences.

In decisions requiring the adjustment of federal-state relations three heads are better than one. So, at least, is the policy underlying the statutory requirement that the United States District Court consist of three judges when plaintiffs ask the Court to go so far as to set aside the statute of a state. The members of this Court agree that the policy in favor of a three-judge court applies in this proceeding.

In order to eliminate uncertainty as to the legal effect of the judgment because of a three-judge court having been convened, Judge Herbert W. Christenberry, the single district judge who would otherwise have heard this case, adopts as his findings, conclusions, and decree the findings, conclusions and decree of the majority of this three-judge court. In United States v. Manning, W.D.La.1962, 206 F.Supp. 623 and United States v. Lassiter, W.D.La.1962, 203 F.Supp. 20, three-judge courts used a similar solution to the same problem.2


The statute attacked reads as follows:

"No person or the agent of any person owning or having in charge any apartment house, tenement house, or other buildings in any city, which is used for dwelling purposes, shall rent any part of any such building to a negro person or negro family when the building is already in whole or in part in occupancy by a white person or white family, or vice versa when the building is in occupancy by a negro person or negro family.
"Whoever violates this Section shall be fined not less than twenty-five dollars nor more than one hundred dollars, or imprisoned for not less than ten days nor more than sixty days, or both.
"It shall not be a defense that the buildings are provided with partitions, or separate entrances, or other features of separation between the races.
"This Section shall not apply to white and negro employees in hotels, lodging houses, boarding houses, or private homes, or otherwise where it can be shown to the satisfaction of the court that the housing of the two races under the same roof is a necessary part of the requirements of the employment."

Giving the words their ordinary meaning, a hotel is "a building * * * used for dwelling purposes". Any doubt as to the inclusion of hotels within the coverage of the law is resolved by the exclusion clause in the last paragraph. There is no reason for excluding "Negro employees in hotels", unless the law applies to hotels.

The express reference to "any apartment house" is additional evidence of legislative intent. We cannot impute to the Louisiana legislature the irrational intention to make the Act applicable to "apartment houses" but not to hotels.

The Act must be read in context. It is one part of an elaborate, developed, overall legislative plan for dealing with the racial problem in Louisiana. Louisiana laws forbid the mixing of races in every activity in almost every phase of life from birth to death. Louisiana never lacked for segregation laws before Brown v. Board of Education. Promptly after that decision the legislature systematically mended and expanded its segregation laws.3 The notion that the legislature intended to give hotels a special dispensation from segregation is out of character for the Louisiana legislature,4 inconsistent with the statutory scheme for total segregation in the state, and wholly without any rational basis. As Judge Christenberry said from the bench during the oral argument:

"Do you expect this Court to hold that a legislature which has insisted on the segregation of the races in the wide open spaces of a park would have intended that there could be mixing of the races in hotels?"

This statute gives the Court no elbowroom in which to apply the doctrine of abstention, a doctrine sometimes applied when a statute requires threshold interpretation. The meaning of the law is too clear to this Court for us to believe that Louisiana courts would interpret Section 317 as exempting hotels from the anti-mixing prohibition.


The plain meaning of the statute is that the State requires separation of the races in hotel accommodations. Although the law is enforced by penalizing the white owners and their agents, the effect of the statute is to enable the State, by legislative mandate, to discriminate against Negroes seeking accommodations at hotels patronized by white persons. State-imposed separation of races is unconstitutional without regard to the fact that Negroes may have separate but equal facilities. A statute "authorizing discriminatory classification based exclusively on color" clearly violates the Fourteenth Amendment. Burton v. Wilmington Parking...

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    ...v. Driver, 411 F.2d 436, 447 (2d Cir. 1969); United States v. Cantrell, 307 F.Supp. 259, 267 (E.D. La. 1969); McCain v. Davis, 217 F.Supp. 661, 666 (E.D. La. 1963). The Reitman case is a clear authority on which to find the defendants herein amenable to jurisdiction under Section 1983. Not ......
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    ...Union v. Donnelly, 304 U.S. 243, 251, 58 S.Ct. 875, 82 L.Ed. 1316 (1938); Bauer v. Acheson, 106 F.Supp. 445 (D.C.1952); McCain v. Davis, 217 F.Supp. 661 (E.D.La.1963). Adjudication by a three judge court is improper if the first issue to be reached is one of statutory construction even thou......
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    • March 15, 1974
    ...Improvement Ass'n v. Deteige, 252 F.2d 122 (5th Cir. 1958); Barthe v. City of New Orleans, 219 F.Supp. 788 (E.D.La.1963); McCain v. Davis, 217 F.Supp. 661 (E.D.La.1963). 267 See Morrison v. Davis, 252 F.2d 102 (5th Cir.), cert. denied, 356 U.S. 968, 78 S. Ct. 1008, 2 L.Ed.2d 1075 (1958). Se......
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