(dissenting).
I agree that a mere conspiracy, to fall within the ban of 8 U.S.C.A. § 47(3), must be “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws”, or for some other purpose specified in that section, and which does not include a purpose of denying to a person due process of law. . Collins v. Hardyman, 341 U.S. 651, 660, 71 S.Ct. 937, 95 L.Ed. 1253. Section 43 on the other hand protects against the deprivation under color of law “of any rights, privileges, or immunities secured by the.- Constitution and laws,” and that, of course, includes the Fourteenth Amendment’s provision, “nor shall any State deprive any person of life, liberty, or property, without due process of law”.
The complaint charges that the defendants knowingly, willfully and maliciously conspired to have plaintiff wrongfully confined to the Bryce Insane Hospital while she was sane. That is not enough, but the complaint goes further. It charges that, under color of the laws of Alabama, the plaintiff was deprived of her liberty without notice to her and without giving her an opportunity of being heard or defending herself, and that the defendants “willfully, knowingly, wantonly, unlawfully, maliciously and wrongfully subjected and caused to be subjected the Plaintiff, a citizen of the United States and of the State of Alabama to the deprivation of rights, privileges, and immunities secured to her by the Constitution of the United States, Section 1 of the Fourteenth Amendment”. The complaint seeks recovery under the Fourteenth Amendment and under the Civil Rights Acts, 8 U.S.C.A. §§ 43 and 47(3), and very *813clearly, it seems to me, brings the case within the jurisdiction of the federal court. Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 90 L.Ed. 939; Mitchell v. Greenough, 9 Cir., 100 F.2d 184, 185.
It is said, however, that the alleged claim under the Constitution and federal statutes is so patently without merit as to justify the court’s dismissal for want of jurisdiction, because it is claimed that 8 U.S.C.A. § 43 does not cover acts by a private individual who is not a state officer. That claim cannot stand the test of comparison with the plain words of the statute:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 8 U.S.C.A. § 43.
It is significant that all the language which can be found that tends to restrict the operation of the Civil Rights Acts to ■officers comes from the cases and not from the statutes. The statute now undér consideration employs the very broadest language to designate the persons covered. Formerly “any person” (see footnote 8, 325 U.S. 99), the expression is now “every person”, 8 U.S.C.A. § 43.1 When that expression can be constitutionally applied as written, it would be judicial legislation to change the word “person” to “officer”.
This section, as it originally appeared, was Section 1 of “the Act of April 20, 1871,, 17 Stat. 13 [28 U.S.C.A. § 1343] (the so-called Ku-Klux Act)” 325 U.S. at page 99, 65 S.Ct. at page 1034, 90 L.Ed. 939. Members of the original Ku Klux Klan to whom this statute was intended to have application were not necessarily officers. Indeed, the federal government was doing its best to exclude them from office.
“Color” of law means pretense of law “mere semblance of legal right”, “appearance as distinguished from reality”. Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495; United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368; Williams v. United States, 5 Cir., 179 F.2d 656; Id., 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774. In the Classic case the defendants were election officials required to count the ballots in a Democratic primary election. The Court said, “Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law, is action taken ‘under color of’ state law.” I do not think that there was any intention to say that only officers can act under “color of” law. In this Country a rigid officer class is foreign to our institutions, the private citizen takes an active part in the affairs of his government and is not uncommonly clothed with authority of law. For example, in many cases in Alabama a private citizen may make arrests, Alabama Code 1940, Title 15, § 158; Suell v. Derricott, 161 Ala. 259, 49 So. 495, 23 L. R.A.,N.S., 996 ; 4 Am.Jur., Arrests, Sec. 35.
The Alabama statute, Alabama Code 1940, Title 45, § 210, requires that before committing. a person to the insane hospital, “the judge of probate shall examine witnesses, at least one of whom shall be a physician”. The complaint charges that the defendant Dr. Johnston signed a medical certificate that plaintiff was insane without having made any examination of her, and that by his act in signing such certificate plaintiff was declared insane and deprived of her liberty without a hearing. The complaint thus charges Dr. Johnston with professional or “official” action necessary under Alabama law to the plaintiff’s commitment.
Insane persons are 'Committed to the state hospital in Alabama upon the application of “a relative, friend, or other party interested”. Alabama Code 1940, Title 45, § 208. I think that it sufficiently appears from the complaint that the defendants other than Dr. Johnston come within the *814classes permitted by Alabama law to institute the. proceedings. In the present case, the physician and the friends, relatives and interested persons had authority to institute and prosecute the commitment proceedings. If they exercised that authority vested in them by law with a purpose of depriving the plaintiff of her liberty without düe process of law and that' result ensued, then, under the statute, 8 U.S.C.A. § 43, they are liable to the party injured.
Irrespective, however, of any direct official connection of any of the defendants with the commitment proceedings, it seems to me, under 8 U.S.C.A. § 43, that is not essential. That Act makes liable “Every person who, under color of any statute * * * of any State * * *, subjects, or causes to be subjected, any citizen of the United States * *, * to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws”. (Emphasis supplied.) If the defendants caused the state officers to deprive the plaintiff of her liberty without notice to her and without giving her an opportunity of being heard or defending herself, they would be liable under 8 U.S.C.A. § 43.
Some meaning must be ascribed to the phrase “or causes to be subjected”. As I understand the position of the majority, it is that only an officer can “cause to be subjected”, that the ‘‘color of office” must clothe the initial causative wrongdoer as distinguished.from the one whom he causes to act. It might b.e claimed that the order of the statutory language tends toward that position.2 The. criminal counterpart of the statute, now 18 Ú.S.C.A. § 242, formerly followed the .same order of expression. See 341 U.S. 98, 71 S.Ct. 576, 95. L.Ed. 774, and Footnote 6, 325 U.S. 99, 65 S.Ct. 1031, 89 L.Ed. 1495.3 That order is changed in the present Code, 18 U.S.C.A. § 242, and the place of the expression “or causes to be subjected” is omitted and supplied only by the general definition of a principal to any crime, 18 U.S.C.A. 2.4 Up to the present time, however, it has not been suggested that any change in the meaning of the criminal statute was intended by the revision.
Qui facit per alium facit per se with the added element 1 of willfullness thus aptly describes the rule made applicable to -civil rights offenses, as well as to other federal1 crimes, by 18 U.S.C.A. § 2. Ordinarily, to constitute a crime more is required than to amount to a civil- wrong; for example, in civil rights offenses the added “willfully”. See 325 U.S. at 100, 65 S.Ct. 1031, 89 L. Ed. 1495. If one may -commit the criminal' offense through another, it is hard for me to see why he may not commit the civil wrong, especially in view of the alternative provision, “or causes to be subjected”.
It is said, however, that the defendants, merely instituted the lunacy proceeding and left its -conduct to the state officers, that the defendants were entitled to act upon the presumption that the state officers would proceed in accordance with the essential-requirements of law. If I -could agree that that is all that the -complaint charges, I would agree with the conclusion that, “The mere institution of the lunacy proceedings without more, is too remote in the chain of -causation to support an action under 8 U. S.C.A. § 43 for ‘causing’ plaintiff to be-deprived of the right to due process.” With deference, I submit that the allegations of the complaint -charge more; they -charge a. willful, and active participation by the defendants not merely in instituting the proceedings but in causing the plaintiff to be-deprived of her liberty without due process-of law. For example, some of the aver-*815merits of Count 3 are quoted in the margin.5 Under the averments of the complaint it seems to me that the causal connection is not too remote between the wrongful acts of the defendants and the plaintiff’s deprivation of her liberty without due process of law. The defendants willfully 6 caused the state statute to be used in such a manner as to deprive the plaintiff of her liberty without a hearing and without due process of law. The state statute was peculiarly susceptible of such misuse, because it did not give an alleged insane person an absolute right to notice and hearing before being committed, Ala. Code of 1940, Title 45, Sections 208, 210. In Moses v. Tarwater, 257 Ala. 361, 58 So.2d 757, the Alabama Supreme Court, with one justice dissenting, pretermitted a decision on the constitutionality of those sections, and I do not think that such a decision is necessary in this case. It is sufficient to give rise to a cause of action under 8 U.S.C.A. § 43> that the acts of the defendants proximately caused state action depriving the plaintiff ■of her liberty without notice to her and without giving her an opportunity of being heard or defending 'herself.
Reverting for a moment to the ground of dismissal, the fact that the complaint is subject to the differing interpretations indicated emphasizes the error of the court in basing its order of dismissal on a lack of federal jurisdiction.
While the decided cases are not directly in point, it seems to me that they support the proposition that 8 U.S.C.A. § 43 covers acts by one not a state officer hut done under color of state law.
In Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, the defendants simply broke up plaintiff’s meeting. “There is not the slightest allegation that defendants were conscious of or trying to- influence the law, or were endeavoring to obstruct or interfere with it.” 341 U.S. at page 661, 71 S.Ct. at page 942. The necessary “color” of law, present in this case, was absent in that. Further, the controversy arose under 8 U.S.C.A. § 47(3), 341 U.S. at page 652, 71 S.Ct. 937, rather than under 8 U..S.C.A. § 43, as here.
In McCartney v. State of West Virginia, 4 Cir., 156 F.2d 739, the principal insistence of the plaintiff was that he had a right to sue the State of West Virginia. He made some incidental complaint of lack of due process, but showed no apparent reason for a charge of lack of due process.
In Williams v. United States, 5 Cir., 179 F.2d 656, affirmed 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774, a private detective who held a special police officer’s card issued by *816the City of Miami, Florida, and had taken an oáth and qualified as a special police officer, when showing his badge and accompanied by a regular policeman was held to be acting “under color” of law within the meaning of -18 U.S.C.A. § 242, or at least that the jury could properly so find. Significantly the Supreme Court said: “Moreover, this was an investigation conducted under the aegis of the State, as evidenced by the fact that a regular police officer was detailed to attend it.” 341 U.S. at pages 99, 100, 71 S.Ct. at page 578, 95 L.Ed. 774. Likewise, this Court, in the course of its opinion, said:
“In the present case the policeman, Ford, although not in uniform, was present in an official capacity as a policeman of the City of Miami, acting under the authority of the City, and giving, under our holding in Crews v. U. S., [5 Cir., 160 F.2d 746], supra, official color to the investigation. * * “Ford was sent to the scene by a superior police officer of the City of Miami. Williams, the appellant, who personally committed most of the assaults and did most of the beating, did so in the presence of this duly constituted, or lawful, officer, who at least, lent color of law to the occasion.” 179 F.2d 656, 660.
In Charlton v. City of Hialeah, 5 ,Cir., 188 F.2d 421, the complaint failed to name the individual officers of the municipality with whom the defendant Faircloth conspired. The Court held that the civil rights statute, 8 U.S.C.A. § 43, did not create a liability on the part of a municipality or of one who conspired with no individual but with the municipality. It seems to- me. clearly indicated that a charge that Fair-cloth conspired with officers of the law would have brought the case within the statute.7
In United States v. Lynch, D.C., 94 F. Supp. 1011, 1013, affirmed by this Court on an appeal by the sheriff and deputy sheriff in Lynch v. United States, 5 Cir., 189 F. 2d 476, District Judge Hooper said in the course of a well considered opinion, 94 F. Supp. at page 1013:
"Violation of Civil Rights Statute by Private Individuals. It was insisted by movants that the six named defendants who were not officers of the State could not violate this civil rights statute because it related only to deprivations by a state. True, Section 242 was enacted pursuant to the Fourteenth Amendment and relates to deprivations by states (acting through state officials) and not to acts of private individuals. It does not follow, however, that private individuals cannot be guilty' as principals if they aid and abet state officers in such violations. Section 2, Title 18, United States Code annotated.
“Thus, in the case of United States v. Trierweiler, D.C., 52 F.Supp. 4, the court pointed out that it is immaterial that a private citizen may not have the capacity to commit the offense, if he aids an officer to do so. In other civil rights cases under Section 242 private individuals have been joined as defendants. Williams v. United States, 5 Cir.r 179 F.2d 644; Williams v. United States, 5 Cir., 179 F.2d 656. The same principle is applied in other cases. Haggerty v. United States, 7 Cir., 5 F. 2d 224 (aiding a prohibition agent) ; United States v. Orr, D.C., 223 F. 220 222 (aiding a manufacturer of olemargarine).”
See also Valle v. Stengel, 3 Cir., 176 F. 2d 697; McShane v. Moldovan, 6 Cir., 172 F.2d 1016; Picking v. Pennsylvania Railroad Company, 3 Cir., 151 F.2d 240; Robeson v. Fanelli, D.C., 94 F.Supp. 62; Wat*817kins v. Oaklawn Jockey Club, 8 Cir., 86 F. Supp. 1006, affirmed, 8 Cir., 183 F.2d 440.
With deference, it seems to me that the decision in the present case constitutes a serious abridgment of the protection provided by Congress to the constitutional rights, privileges and immunities of citizens of the United States, and I, therefore respectfully dissent.
Rehearing denied; RIVES, Circuit Judge, dissenting., It may be noted that the criminal couni broad expression, “whoever”. irpart, 18 U.S.C.A. § 242, uses an equally
. “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected * * 8 U.S.C.A. § 43.
. “Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes-to be-sub-, jected * *
. “Reference to persons causing or procuring was omitted as unnecessary in view of definition of ‘principal’ in section 2 of this title.” Reviser’s note to Sec. 242, Title 18 U.S.C.A.
Section 2(b) reads: “Whoever willfully causes an act to be done which if' directly performed by him or another would be. an offense against the United. . States, is punishable as a. principal.”
. “The Defendants, under color of laws, statutes, customs, or usages of the State of Alabama, Code of Alabama of 1940, Title 15, Section 432, and Title 45, Sections 208, 209, 210, on, to-wit, January 5, 1951, in the Northern Division of the Middle District of Alabama, willfully, knowingly, wantonly, unlawfully, maliciously, and wrongfully subjected and caused to be subjected the Plaintiff, a citizen of the United States and of the ■State of Alabama to the deprivation of rights, privileges, and immunities secured to her by the Oonstitution of the United States (Section 1 of the Fourteenth Amendment); that is to say to-wit that ■during all of the time herein referred to Plaintiff was sane but, that on, to-wit .January 5, 1951, at Troy, Alabama, the Defendants, under color of Code of Alabama, Title 15, Section 432, and Title 45, Sections 208, 209, and 210 did cause Plaintiff to be declared insane, and to .be •ordered committed to Bryce Insane Hospital, all without notice to her, and without giving her the opportunity of being hoard or defending herself and thereby caused her to be arrested and confined in the County jail of Pike County, Alabama, while awaiting incarceration in said Bryce Insane Hospital, from January 5 to 9, 1951, inclusive, a period of five days time, and in so doing, did subject and cause to be subjected the Plaintiff to the deprivation of her liberty without due process of law and in violation of her rights, privileges, and immunities secured to her by the Fourteenth Amendment of the Constitution of the United States, all without right or cause * *
. Willfullness is not required to support a civil action under 8 U.S.C.A. § 43, but when averred, as here, it may have a bearing upon causal connection. “The intentional tort, of course, creates liability for consequences which were intended.” 38 Am.Jur., Negligence, See. 52.
. “The complaint fails to name any individuals or officers of the municipality with whom the defendant Faircloth conspired. The reasonable deduction is that, since he conspired with no individual, he must have conspired with the municipality. It is easy to understand how officers exercising the authority delegated to a town or city might, in their individual capacity, be a party to a conspiracy; but a municipal corporation, which is limited by law to the purposes and objects of its-creation, namely, the maintaining and exercising of the powers of local government, cannot in its sovereign or municipal capacity be a party to a conspiracy.” 188 F.2d 421, 422.