(dissenting in part).
I can go along with the majority in holding that the action should not have been dismissed as to the Board of Commissioners of the City of Birmingham and the Members of the Alabama Public Service Commission. I part with them when they find a claim stated against Birmingham Terminal Company over which a Federal Court has jurisdiction.
Obviously there is no jurisdiction under 28 U.S.C.A. § 1331. If jurisdiction *792exists it is under 28 U.S.C.A. § 1343(1) or § 1343(3) which provide:
“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:
“(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 47 of Title 8 [42 U.S.C.A. § 1985];
******
“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States.”
As to the Terminal Company the complaint alleges it operates a railway terminal and that it
“has pursued and is pursuing a policy, custom or usage of denying your plaintiffs and other Negroes similarly situated, the use of the waiting room * * * designated ‘Interstate and White Passengers Waiting Room’, and has pursued a policy of providing your plaintiffs and other Negroes similarly situated of waiting rooms on a segregated basis, all of which actions have been under color of and purported compliance with, section 186, Tit. 48, 1940 Code of Alabama, and the orders of the Public Service Commission pursuant thereto, all of which is in violation * * * 0f their right to use the facilities of the Birmingham Terminal Station on an unsegregated basis.”
The foregoing may state a justiciable claim but not all such are in the Federal orbit. The majority say:
“If the case were one for false arrest or imprisonment, it might well fail for want of any allegation connecting the Terminal Company with that incident. But that is not the case. The case is that the Service Commission and the Terminal Company, under color of Alabama law, custom or usage, have established compulsory segregation and that it is carried out, in part at least, by subjecting those ‘* * * who fail to observe said * * * custom, statute or usage * * * to arrest and confinement in jail’ ”.
The part of the above language relating to arrest and jail which is under quotes in the majority opinion was lifted from a paragraph dealing with the Birmingham City Commissioners. The complaint alleged that failure to observe the policy, custom, statute or usage of the City Commission, not those of the Terminal Company, would result in jail and arrest.
So far as concerns interstate passengers, the Alabama statute and any orders of the Alabama Public Service Commission to the extent they may require segregation in waiting rooms, were superseded by the Interstate Commerce Commission ruling. In the complaint can be found statements that the Alabama Commission had issued orders requiring segregation in waiting rooms which the City Commission would enforce by arrest and confinement. No such allegation is made as to the Terminal Company. It is to be noted that there is no charge of any concert of plan or action of the Terminal Company with the other appellees. The Terminal Company had no express powers to enforce segregation. I find nothing said to indicate that any were assumed. We do not have a case here where state officers exceed their authority or where a conspiracy existed. There is no basis in this case for the aider and abettor doctrine. The majority hold, and I think of necessity must hold to sustain jurisdiction, that the Alabama statute, which has been superseded *793as to interstate passengers, requires the Terminal Company to enforce segregation in waiting rooms and has clothed it with police powers as an arm of the State. The majority say that the now invalid order of the Alabama Public Service Commission cannot be enforced unless the Terminal Company does something to carry it out. The record shows the appellants were arrested by city police and does not show that the Terminal Company had anything to do with it.
There is no allegation that the Terminal Company made any agreement or had any understanding with any of the other appellees regarding the policy attributed to it. There is no charge that it committed any overt act. There is no averment that it was a party to any concerted plan. Where there is no agreement or plan, and where there is no act done to further the “policy”, I can see no averment as to any conspiracy under 42 U.S.C.A. § 1985. Under 28 U.S.C.A. § 1343 (1) the jurisdiction is limited to actions to recover damages. Here there are no damages sought and no allegations of damages made. The complaint seeks declaratory and injunctive relief and such other relief as may be equitable and just. The appellants did not, as I read their complaint, seek to invoke jurisdiction under 28 U.S.C.A. § 1343(1), and do not before us, by brief or argument, assert such jurisdiction. I can see no basis for any such claim as to the Terminal Company.
Nor can I find any basis for jurisdiction under 28 U.S.C.A. § 1343(3). I am unable, with my eyes, to detect the color of state law, statute, ordinance, regulation, custom or usage under which the Terminal Company has deprived the appellants of any of the rights enumerated in the jurisdictional grant.
In the majority opinion it is said, “Three times, under the Interstate Commerce Act, 49 U.S.C.A. § 3(1), compulsory discrimination on account of color or race has been proscribed.” Three cases are cited. Mitchell v. United States, 313 U.S. 80, 61 S.Ct. 873, 85 L.Ed. 1201, and Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed. 1302, are cases where appeals were taken from three-judge court decisions ruling on the validity of Interstate Commerce Commission orders. The third case, NAACP v. St. Louis-San Francisco Ry. Co., 297 I.C.C. 335, is, as the citation shows, an Interstate Commerce Commission decision. The majority opinion continues, “And once, Morgan v. Commonwealth of Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317, resting upon Article I, Section 8, of the Constitution (which the plaintiffs here expressly invoke), compulsory segregation on account of race in interstate motor transportation was held to be an unconstitutional burden upon that commerce itself.” This was an appeal from a decision of the Supreme Court of Appeals of Virginia.
We are not here concerned with the jurisdiction of the Interstate Commerce Commission nor with the jurisdiction of a Three-Judge District Court to review orders and decisions of the Commission. We are not confronted with any question as to the jurisdiction of state courts. We do have a question as to the original jurisdiction of United States district courts, a question which I think the majority have wrongly decided.
The question should not be resolved by any measure of the complaint as to its sufficiency as a pleading. I am not troubled as to whether a claim is stated with adequate factual allegation. We are here applying jurisdictional tests and in Federal courts the party invoking the jurisdiction must make that jurisdiction appear by clear and positive averments. This I do not think the appellants have done.
From so much of the majority opinion as sustains jurisdiction of the Terminal Company, I dissent.