Turner v. Goolsby

• Decision Date: 20 May 1966
• Docket Number: Civ. A. No. 1226.
• Citation: 255 F. Supp. 724
• Parties: Calvin TURNER, Joseph Turner, James T. Bates, Moses King, Robert L. Billingsley, Collins King, Albert L. King, Evans H. Harris, J. W. Combs, and Frank Bates, Minor, by Mrs. Mary Bates, his mother and next friend, on behalf of themselves and all others similarly situated, Plaintiffs, v. Kenneth E. GOOLSBY, individually, and as Solicitor General, Toombs Judicial Circuit, Milton B. Moore, Individually, and as Sheriff and Custodian of the Common Jail of Taliaferro County, Georgia, Harold F. Richards, Individually, and as Attorney for Taliaferro County, Georgia, Lola Williams, individually, and as Superintendent of Schools of the Taliaferro County School System, H. E. Williams, Jr., Mrs. Willie Mae Fambrough, Carl Chapman, and J. M. Taylor, individually, and as Members of the Board of Education of Taliaferro County, Georgia, and the Board of Education of Taliaferro County, their agents, servants, employees, successors, representatives, and all persons in active concert and participation with them, Defendants.
• Court: U.S. District Court — Southern District of Georgia

255 F. Supp. 724

Calvin TURNER, Joseph Turner, James T. Bates, Moses King, Robert L. Billingsley, Collins King, Albert L. King, Evans H. Harris, J. W. Combs, and Frank Bates, Minor, by Mrs. Mary Bates, his mother and next friend, on behalf of themselves and all others similarly situated, Plaintiffs, v. Kenneth E. GOOLSBY, individually, and as Solicitor General, Toombs Judicial Circuit, Milton B. Moore, Individually, and as Sheriff and Custodian of the Common Jail of Taliaferro County, Georgia, Harold F. Richards, Individually, and as Attorney for Taliaferro County, Georgia, Lola Williams, individually, and as Superintendent of Schools of the Taliaferro County School System, H. E. Williams, Jr., Mrs. Willie Mae Fambrough, Carl Chapman, and J. M. Taylor, individually, and as Members of the Board of Education of Taliaferro County, Georgia, and the Board of Education of Taliaferro County, their agents, servants, employees, successors, representatives, and all persons in active concert and participation with them, Defendants.

Civ. A. No. 1226.

United States District Court S. D. Georgia Augusta Division.

October 22, 1965.

Supplemental Opinion May 20, 1966.

E. Freeman Leverett, Deputy Asst. Atty. Gen., Elberton, Ga.; E. Lloyd Lewis, Greensboro, Ga.; Walton Harden and Wilbur A. Orr, Washington, Ga.; Charles L. Bloch, Macon, Ga.; Kenneth E. Goolsby, Sol. Gen., Thomson, Ga.; E. Purnell Davis, Warrenton, Ga., for defendants.

Jack Greenberg, Derrick Bell, Howard Moore and Donald Hollowell, for plaintiffs.

Arthur K. Bolton, Atty. Gen. for Georgia and Alfred L. Evans, Jr., Asst. Atty. Gen., Atlanta, Ga., for receivers.

Before BELL, Circuit Judge, and SCARLETT and MORGAN, District Judges.

OPINION

PER CURIAM:

Plaintiffs, Negro citizens of Taliaferro County, Georgia, brought an action, as amended, against defendants in four counts. In Count One they contend that Georgia Code § 26-6901 is unconstitutional and seek to restrain its enforcement. That statute provides generally that any person disturbing religious worship shall be guilty of a misdemeanor. In Count Two they contend that Georgia Code § 26-3914, the Georgia forgery statute, is also unconstitutional and seek to restrain its enforcement. Count Three alleges that the defendants have conspired to deny plaintiffs and the class they represent their civil rights, and several overt acts pursuant to the conspiracy are set out. Count Four was added by amendment. It seeks the desegregation of the public school system of Taliaferro County, Georgia.

A three judge district court was convened in light of the claims of Count One and Two, and the cause came on for hearing on the question of temporary injunctive relief. The Court declined to hear evidence relating to Count Two of the complaint for the reason that the rights of only one person are involved and the relief sought does not relate to the civil rights of the class. The essence of the complaint is to secure relief relative to the civil rights of Negro citizens in Taliaferro County as a class. No evidence was adduced on Count Four and the Court is of the opinion that the desegregation of the public school system other than in the degree hereinafter discussed is a matter over which the Department of Health, Education and Welfare of the Executive Department of the federal government has already assumed jurisdiction. It appears without dispute that the school board of Taliaferro County has submitted a plan of desegregation to that department. Thus, the Court confined the hearing on the motion for interlocutory injunction to Counts One and Three insofar as the relief sought by plaintiffs is concerned.

The defendants filed a counterclaim against plaintiffs and the class they represent seeking injunctive relief against various activities of plaintiffs and their class including those which allegedly disturbed Murden School, the Negro school of Taliaferro County and the students therein while school was in session, and also those which interfered with school buses being used to transport white students to the schools of several surrounding counties.

COUNT ONE

The defendants contend at the outset that Code Section 26-6901 is not unconstitutional on its face and that no question is therefore presented for a three judge district court. The rule is that the statute must be sufficiently clear to furnish a guide to anyone who proposes to act in light of the statute. Cf. Baggett v. Bullitt, 1964, 377 U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377; and Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093. At first blush the language of this statute seems clear. It operates against any person who by cursing or using obscene or profane language or by otherwise indecently acting interrupts or disturbs a congregation of persons lawfully assembled for divine service.¹ The facts of this case may be used as a hypothesis to test the clarity of this statute, and when so used it appears that whether or not the statute is unconstitutionally vague presents a substantial question. This is particularly so where First Amendment rights, as is the case, are involved.

The facts are that plaintiffs and their class marched in double file from the Friendship Baptist Church in Crawfordville, Taliaferro County, Georgia, on August 22, 1965, and took their place together, there being about 125 of them, on the courthouse lawn. They there sang "God Bless America", were led in prayer by one of their number, and then another one of their number made a statement. They thereupon marched in double file back to the church. At the time of their assembly on the courthouse lawn it appears that a retired or itinerant minister by the name of Reverend Whitney Ward was occupying another position on an adjacent quarter of the courthouse square where he was engaged in playing phonograph records, thought by some to have been religious in nature, over a loud speaker. There was also some testimony that he had a Bible in his hand and perhaps read from the Bible. The estimates placed the number of people assembled on the steps of the courthouse, on the adjacent sidewalks, on the lawn, and on automobile fenders along the street together at no more than fifteen persons. This was the congregation purportedly to have been lawfully assembled for divine service.

This assembly of plaintiffs and their group set off a chain of events resulting in a flagrant unconstitutional application of the statute proscribing the disturbance of divine worship. The grand jury of Taliaferro County met and indicted nine members of the group of Negroes for violating the statute. They were arrested, incarcerated, some over night, and are presently at liberty on bonds of $750.00.

The Reverend Ward was present in the courtroom during the three-day hearing on the motion for temporary relief, but failed to take the stand to contradict or amplify the above-stated facts and circumstances. A deputy sheriff who is also chairman of the Board of County Commissioners of Taliaferro County and the son-in-law of Sheriff Moore, one of the defendants, testified on behalf of defendants as to the circumstances surrounding the alleged disturbance of divine worship. However, his testimony did not seriously contradict what we have above recited.

We need not now decide whether this Georgia statute is unconstitutional on its face. It is enough in granting interlocutory relief to hold that a substantial question is presented, and to reserve the question for final hearing. It was unconstitutionally applied and such application will be considered by way of relief.

COUNT THREE

This count presents a question ancillary to those set out in Counts One and Two which are subject to three-judge action. The Court in its discretion, having assumed jurisdiction on the basis of Count One, determined to consider and grant relief, if indicated, on the cause or causes of action set out in Count Three, the conspiracy count. The plaintiffs contended that the defendants, acting in concert, unlawfully combined and conspired to deprive them of their federal civil rights.

One of the defendants is the solicitor general of the Toombs Judicial Circuit and he resides in McDuffie County. All the other defendants reside in Taliaferro County. One, as stated, is sheriff; another, Harold F. Richards, is county attorney and also attorney for the school board. The superintendent of schools is a defendant as are the members of the school board.

There are only two schools in the county; Murden which is populated by Negroes, and Alexander Stephens Institute which was populated by whites during the last school term. It appears without dispute that Alexander Stephens Institute has been closed since the beginning of this school term on or about September 1st, and that all white children in Taliaferro County are attending school in adjoining counties with most being transported on Taliaferro County school buses. The role that the school superintendent and the school board are alleged to have played in the conspiracy is to have secretly and covertly arranged for all the white children to leave the county for school in other counties so as to eliminate the only white school available to 87 Negro children who sought transfers to a desegregated school. The transfers were sought pursuant to a plan of desegregation filed with the Health, Education and Welfare Department. The transfer applications of these Negro students had never, up until the time of hearing, been considered by the superintendent and the school board. Instead, the school superintendent concluded that some of the applications for transfer were not bona fide and thereupon called upon the school board attorney, defendant Richards, to conduct an investigation as to whether some of the applications were forged.

The conduct of the investigation by Mr. Richards must be considered in the light of the fact that he is the same Mr. Richards who called on Defendant Goolsby, the...