Bailey v. Patterson

RIVES, Circuit Judge

(dissenting).

The complaint seeks to enjoin state-imposed racial segregation in public travel facilities in the State of Mississippi and the City of Jackson, Mississippi. It seeks relief against two types of statutes and ordinances: (1) laws which on their face require the segregation of the races, and (2) laws which purport to deal with the maintenance of law and order but which, according to the complaint, are used to maintain segregation.

The plaintiffs are three adult Negro citizens residing in Jackson, Mississippi, who sue on behalf of themselves and of other Negroes similarly situated and affected by the statutes and ordinances complained of.1 The defendants are the Attorney General of Mississippi; the City of Jackson, its Mayor, Commissioners and Chief of Police; Jackson Municipal Airport Authority; Continental Southern Lines, Inc.; Southern Greyhound Lines; Illinois Central Railroad, Inc.; Jackson City Lines, Inc.; and Cicero Carr d/b/a Cicero’s Airport Restaurant.

The original complaint and motion for preliminary injunction were filed on June 9, 1961. A hearing on the plaintiffs’ motion for preliminary injunction was set for July 10, 1961. That hearing was continued because of the illness of an Assistant Attorney General of Mississippi. The hearing was reset for August 7,1961.

Meanwhile, an Amended Complaint was filed on July 17, 1961. The hearing set for August 7,1961 was confined to the argument of motions to dismiss, motions to dissolve the three-judge court, motions to abstain, motions for more definite statements, motions to require the plaintiffs to furnish security for costs, and to the plaintiffs’ insistence upon a hearing of their motion for preliminary injunction. By order entered on that date, August 7, 1961, the court allowed the Amended Complaint which had been filed July 17, 1961; allowed the plaintiffs to join as an additional party defendant the Jackson Municipal Airport Authority; provided for service upon that party and for the filing of any motions and answers on its behalf; denied the motions to dismiss for lack of indispensable parties; denied, on conditions immediately met, the motions for more definite statements and the motions to require the plaintiffs to furnish security for costs; and carried with the case for later disposition the other motions to dismiss, the motions to dissolve the three-judge court, and the motions to abstain.

Over the plaintiffs’ objection, their request to be heard on their motion for preliminary injunction was denied “in view of the broadening of the issues 2 by the Amended Complaint filed on July 17,1961, and of the bringing in on this date of a new party defendant,” and the hearing of the motion for preliminary injunction was passed until September 25, 1961. It was further ordered that on that date the *610court would hear the case, both on said motion and on the prayer for permanent relief. The court stated its intention finally to dispose of the case following the hearing set for September 25,1961.

On September 25, 1961, over certain objections noted in the transcript of testimony, the court did proceed with the hearing of the case both on the motion for preliminary injunction and on the prayer for permanent relief. The taking of testimony consumed three days — Monday, Tuesday and Wednesday, September 25, 26 and 27. On Thursday, September 28, oral arguments of counsel were heard, and a further exhibit of the plaintiffs (No. 36) was received. The defendant Greyhound Corporation was permitted to take the deposition of A. W. Wilson, which was filed on October 10, 1961. The testimony has now been transcribed and was filed on October 20, 1961, and additional briefs have been filed by the parties and by the amicus curiae, the United States of America.

The evidentiary disputes are not very material. The formal allegations of the complaint, the identity and residence of the plaintiffs, their use of the transportation facilities in question, the identification of the carrier defendants, their use of the busses, cars, terminals, depots, rest rooms, drinking fountains, etc., were all either admitted or established by undisputed evidence. Continental Southern and Greyhound admitted that in their Jackson terminals or depots there are signs on the outside doors of one waiting room which read: “Colored Waiting Room — Intrastate Passengers,” and signs on the outside doors of another waiting room which read: “White Waiting Room —Intrastate Passengers,” and on the sidewalks outside the respective waiting rooms are signs which read: “Waiting Room for Colored Only — by Order Police Dept.” and “Waiting Room for White Only — by Order Police Dept.” Each bus company claimed that it did not place the signs on the sidewalks, and that the signs on or over the doors were placed “pursuant to the provisions of Chapter 258, Laws of 1956, Regular Session of Mississippi Legislature.” The bus companies further admitted that similar signs on or over the doors appear on waiting rooms in all terminals or depots in the State of Mississippi.

Illinois Central admitted that in its railroad terminal or depot in Jackson it maintains two separate waiting rooms, on the sidewalk outside of one of which are signs reading respectively: “Waiting Room for Colored Only, by Order Police Dept.” and “Waiting Room for White Only, by Order Police Dept.,” and that similar signs are located in the railroad terminal at the bottom of the stairs leading from the trains.

The Chief of Police of Jackson in his testimony admitted that the signs on the sidewalk were placed by the Police Department pursuant to the City segregation ordinance.

Both the two Bus Companies and the Railroad denied enforcing segregation on busses or cars.

The Jackson City Lines admitted that, pursuant to State law, it maintains signs on its busses directing that Negroes and whites sit in separate parts, and that, when those directions are not observed and a “breach of the peace is imminent,” it has a policy of stopping the bus and proceeding no further.

The Jackson Municipal Airport Authority admitted segregation of the rest rooms and drinking fountains in its waiting rooms. Cicero Carr, the lessee of the restaurant at the Airport, admitted that he would not serve Negroes in the main dining room, but would serve them on a back counter in a room partially used for storage.

The Mayor of the City of Jackson, the chief law enforcement official of the City, and the State Attorney General were questioned on their racial policy with respect to public transportation facilities. The majority ruled that such testimony was inadmissible, and I dissented. The testimony was admitted under Rule 43 (c) of the Federal Rules of Civil Procedure, 28 U.S.C. as a specific offer of evidence. The statement of the Mayor is *611so pertinent it should be quoted at length. (The ordinance under discussion in his testimony is the City ordinance requiring the segregation of transportation facilities.)

“Q. * * * State your understanding of the racial policy of the City of Jackson with respect to transportation facilities in the City of Jackson. A. * * * It has been the policy of mine as chief law enforcement officer, and the members of the city council and the police department and of the people of Jackson, to maintain what has worked over the last hundred years to bring happiness and peace and prosperity to everyone within our city. That has been done by a separation of the races, not segregation. We never refer to it as segregation. Now, of course, you know and I know the State law upon which the City ordinance was patterned in 1956, with the preamble put in as ours, showing why — to maintain peace and order and to keep down disturbances. Since I have been Mayor I do not recall one incident where there has been an arrest under this ordinance or any segregation ordinance. We have at all times tried to maintain peace and keep down disturbances. That is the policy. Our policy calls for a great deal of give and take. It is agreeable to both the white and the colored. * * * So you see that laws can come and laws can go and laws can be changed, but the policy adopted here is to maintain happiness and contentment between the races, within the law, and at the same time giving the benefit of the great advantage over the years of living together in peace and quiet.
“Q. Does this ordinance accurately reflect this policy, in effect, which you have just stated? * * * A. I think so * * *. However, as Your Honors have read it, you read the last paragraph there, it says, ‘The Council of the said City of Jackson owes the duty to its citizens, regardless of race, color, creed or station in life, to maintain good order and to prevent breaches of the peace, and thereby to promote the health and general welfare of all its citizens,’ and then of course we adopted the State ordinance in this. * * *
“Q. * * * Does the body of the ordinance, apart from the preamble, reflect the policy of the City of Jackson as you have stated it? A. The policy of the City of Jackson is certainly adopted in the ordinance, which is based on State law, that is taken from State law, and is based on exactly what I have said, the matter of separation of the races.”

The State Attorney General testified on direct examination that it was his duty to enforce all of the laws in the State. He was extremely evasive on answering whether the State segregation laws affected his duty as Attorney General; however, he did say that they were laws of the State, that they had not been declared unconstitutional, and that he would enforce them “if conditions arise to such a point that I thought it was necessary to bring them into effect.” He said in a concluding statement:

“My sole purpose since the beginning of these instigated troubles that were instigated outside our State and brought to our State, has been the preservation of peace and order within the borders of the State of Mississippi. I have undertaken that, along with all other public officials and law enforcement officers of this State.”

Part of such undertakings were meetings prior to and just after the arrival of the first group of Freedom Riders on May 24, 1961, attended by himself, the Mayor and Chief of Police of Jackson. Plans were discussed at these meetings for dealing with the Freedom Riders. On this point he testified:

“Q. Did you discuss with the Chief of Police what steps he was *612going to take to preserve law and order? A. Yes, we discussed plans.
“Q. What were those plans? A. The plan was to do exactly what they did, first of all to keep down riot and disorder, and these arrests necessarily followed. They could have been easily avoided had your clients only wanted them avoided * *

The Attorney General is not responsible for the enforcement of state law in the local courts; he is, nevertheless, the chief policymaker of state law enforcement.

The plaintiffs offered evidence of the arrests for breach of the peace of passengers on the defendant carriers. There is evidence of two incidents on the busses of the Jackson City Lines. (In fact, the records of the City Lines contain reports on only two incidents.) Plaintiff Bailey testified to the arrest of one Charles Patterson, a Negro, for refusing to move when a white man got on the bus and sat down next to him. Witness Doris Gray-son testified to the arrest of herself and three companions who got on a City Lines bus in the center of the City and sat in a front seat. The bus was stopped for 10 minutes before a policeman came along. In neither instance is there any evidence in the record of an actual or threatened breach of the peace. The driver in the Grayson incident testified:

“Q. Were there any white persons on the bus ? A. Yes.
“Q. At the time these four Negroes were on the bus? A. Yes.
“Q. Was there any disturbance on the bus? A. Not a bit.
“Q. Was there any disturbance outside the bus ? A. No, not any.”

The record also includes evidence on the arrests of approximately 300 Freedom Riders in the terminals of the defendant interstate carriers. Captain Ray of the Jackson Police Department, who personally made the majority, if not all, of the arrests, testified as follows with respect to the activities of the Negroes arrested the white waiting room of the Illinois Central Railroad:

“Q. What were the Negroes doing that you arrested in there ? * * A. They came in the terminal.
“Q. What did they do ? A. They came in and some of them had seats and some of them stood.
“Q. What else did they do? A. That is about all.
“Q. Were they armed? A. I never found any of them armed.
“Q. Were they loud? A. No.
“Q. Did they use any curse words? A. No.
"Q. Did they strike anybody? A. No.
“Q. Did they threaten anybody? A. No.
“Q. Did you arrest them? A. I sure did.
“Q. For what? A. Because their presence provoked people and caused them to become disturbed, and I felt it best to maintain law and order and to order them to leave there. When they refused to obey my order, they were arrested.
“Q. Would you explain what you mean by ‘their presence there provoked people’? A. Well, as I stated earlier, we had advance notice that they were coming to Jackson to create an incident similar to what has happened in other cities, and my duty there was to maintain law and order, and I felt it best to get the root of the trouble out of there, and that is when I ordered them to leave.
“Q. What did they do in violation of law and order? A. When I ©rdered them to leave, they just stood there, as though they hadn’t heard me say a word. I repeated that order several times, and they refused to obey, and that is when I arrested them.”

He testified that all the other arrests in the waiting rooms of the remaining depots were virtually identical.

The testimony with respect to the circumstances surrounding the arrests is equally explicit. Chief of Police Rayfieid *613was questioned on the existence of crowds of people around any of the terminals when a group of Riders arrived and were arrested. He testified that there were two such occasions, one on the first arrival at the Trailways terminal on May 24 when he was present, and another when the first group came to the Illinois Central terminal, of which he had a report. At the Trailways terminal, he testified that a number of people were waiting in cars and others congregated outside the terminal. To his knowledge none of them were fighting, loud or armed; their attitude, however, he termed hostile. The ones not in cars were asked to disperse, and they did. At the Illinois Central terminal, Rayfield had reports that 10 or 15 people were milling about in the street exhibiting a hostile and disturbed attitude. They were asked to move, they complied and were gone by the time the Riders arrived. He then testified;

“Q. Did you receive any other reports from your police officers of this nature? A. That’s the only two.
“Q. The only two reports you know about?” A. The only two I received where there could have been any situation like you were just discussing. Now, the others I don’t recall that there has been any other trouble around any of the terminals.”

Captain Ray testified that the events within the terminal were roughly similar for all the arrests: Before the arrival of a group, people inside the terminal would make remarks, none of which particularly threatened violence. If necessary, he would order all those who did not have tickets or some business in the terminal to leave; they always complied. When the group arrived, some remarks were made, people in the terminal would follow them around, but no acts of violence ever took place. Captain Ray ventured the opinion that there might have been incidents of violence had he not arrested the Riders, but there is no indication that the situation could not have been handled by restraining or arresting the offending party. „

This is the extent of the evidence in the record on potential breaches of the peace.

This action was brought by three Negro plaintiffs from the City of Jackson as a class action, on behalf of themselves and other Negroes similarly situated, under the Civil Rights Act, 42 U.S.C.A. § 1983, which creates an equitable cause of action against

“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 * *

The jurisdiction of the three-judge court is invoked pursuant to 28 U.S.C. § 2281, § 2284 because the constitutionality of state statutes has' been attacked. The statutes attacked are the so-called segregation statutes of the State of Mississippi which require'racial segregation in all common carriers and in waiting room and rest room facilities used by the carriers, and provide criminal penalties for carriers and persons refusing to abide by these laws.3

The defendants attacked the jurisdiction of the three-judge court on the ground that these statutes have never been enforced and no arrests have been made under their provisions. Under the recent case of Poe v. Ullman, 1961, 367 U. S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989, the complete failure to enforce a state law, coupled with its open and notorious violation, prevents the federal courts from reaching the constitutionality of the statute since no case or controversy is presented. If such were the case here, the three-judge court would not have juris*614diction. The evidence shows, however, that the defendant carriers and the Jackson police maintain signs pursuant to the command of these statutes. This is sufficient evidence of enforcement to create a case or controversy and maintain the jurisdiction of the three-judge court.

In the alternative, the defendants argue that jurisdiction over the segregation statutes may not extend to the collateral problem of enforcement of segregation by means of the breach of the peace statutes on the grounds: (1) there is no authority under § 2284, and (2) the court may not consider issues of fact. The concept of federal jurisdiction is by no means this narrow. In Sterling v. Constantin, 1932, 287 U.S. 378, 53 S.Ct. 190, 193, 77 L.Ed. 375, the jurisdiction of the three-judge court, originally invoked to test a state statute limiting oil production, extended to the Governor of Oklahoma’s attempt to institute the same production limitations by fiat under martial law. The three-judge court made extensive findings and concluded: “The evidence shows no insurrection nor riot; in fact, existing at any time in the territory, no closure of the courts, no failure of civil authorities.” On this basis, the court held that the invocation of martial law was invalid and that the military orders enforcing the production limitations were a denial of due process. The Supreme Court upheld the district court and specifically approved the extensive findings of fact: ,

“Accordingly, it has been decided * in a great variety of circumstances that, when questions of law and fact are so intermingled as to make it necessary, in order to pass upon the federal question, the court may, and should, analyze the facts.” (287 U.S. at p. 398, 53 S.Ct. at p. 195.)

The Court went on to say that the jurisdiction of the three-judge court

“ * * * extends to every question involved, whether of state or federal law, and enables the court to vest its judgment on the décision of such of the questions as in its opinion effectively dispose of the case.” (287 U.S. at pp. 393-394, 53 S.Ct. at p. 193.)

See also, Hurn v. Oursler, 1933, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148; Florida Lime & Avacado Growers v. Jacobsen, 1960, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568; Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222.

The City of Jackson, its Mayor, Commissioners and Chief of Police urge that the City cannot be sued in this action. They rely upon Monroe v. Pape, 1961, 365 U.S. 167, 191 n. 50, 81 S.Ct. 473, 5 L. Ed.2d 492, and Egan v. City of Aurora, 1961, 365 U.S. 514, 81 S.Ct. 684, 5 L.Ed. 2d 741. The question is also relevant to relief against the Jackson Airport Authority.

The direct holding in Monroe v. Pape is that a municipal corporation is not a ‘'person” within the meaning of Section 1983 for the purpose of holding it liable for damages, and is based upon the finding that Congress rejected an amendment which would have made such corporations liable for money damages in specific cases. 365 U.S. at 188, 81 S.Ct. 473. The defendants argue that if the City is not a “person” for purposes of damages, it cannot be a “person” for purposes of an injunction, and further argue that the Supreme Court specifically so held in footnote 50 of Monroe v. Pape, supra in 365 U.S. at p. 191, 81 S.Ct. at p. 486 when it said :

“In a few cases in which equitable relief has been sought, a municipality has been named, along with city officials, as defendant where violations of 42 U.S.C. § 1983, 42 U.S.C.A. § 1983, were alleged. See, e. g., Douglas v. City of Jeannette, 319 U. S. 157 [63 S.Ct. 882, 87 L.Ed. 1324]; Holmes v. City of Atlanta, 350 U.S. 879 [76 S.Ct. 141, 100 L.Ed. 776], The question dealt with in our opinion was not raised in those cases, either by the parties or by the Court. Since we hold that a municipal corporation is not a ‘person’ within the meaning of § 1983, no inference to *615the contrary can any longer be drawn from those cases.”

The question of whether a municipality could be sued under § 1983 for equitable relief, however, was not before the Court, and I do not believe that the Court intended in a footnote to overrule prior eases indicating that a municipal corporation could be so sued. See Douglas v. Jeannette, supra; Holmes v. City of Atlanta, supra; Mayor and City Council of Baltimore City v. Dawson, 350 U.S. 877, 76 S.Ct. 133,100 L.Ed. 774, affirming 220 F.2d 386 (4 Cir., 1955). This is especially true when the legislative history upon which the Court relies is directed solely to the question of damages. We are not here concerned with the question of tortious action and the liability of the City taxpayers for such actions over which they had little possible control. The question here is one of prospective equitable relief for the protection of the plaintiffs’ constitutional rights against not just the tortious activity of individuals, but the enforcement of City ordinances, officially declaring City policy, and officially recorded on the City Journal. This same issue has been before the Seventh Circuit Court of Appeals since Monroe v. Pape, and that Court held:

“None of the reasons which support a city’s immunity from an action for damages for tortious injuries already inflicted by its officers, agents or servants applies to this case. No reason is apparent why a city and its officials should not be restrained from prospectively violating plaintiffs’ constitutional rights pursuant to its own legislative enactment, and an injunction not be granted as provided in § 1983.”

Adams v. City of Park Ridge, 7 Cir., 1961, 293 F.2d 585, 587. For these reasons, I believe that footnote 50 in Monroe v. Pape may be construed to say that, whether or not a municipal corporation is subject to equitable relief under § 1983, no inference from cases indicating that it may is relevant to the issue of its liability for damages.

More fundamentally, however, the plaintiffs’ right of action against the City does not depend alone upon § 1983. The rights asserted here are based on the Constitution which itself creates the cause of action for equitable relief and, within the meaning of 28 U.S.C. § 1343(3) (the jurisdictional provision upon which this suit is based), authorizes this suit. Cf. Bell v. Hood, 1946, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939; Brewer v. Hoxie School District No. 46, 8 Cir., 1956, 238 F.2d 91, 103; Hart & Wechsler, The Federal Courts And The Federal System 794-97 (1953). Doctrines of immunity can have no application to suits in equity brought to restrain invasions of federal constitutional rights. Sterling v. Constantin, 1932, 287 U.S. 378, 393, 53 S.Ct. 190, 77 L.Ed. 375; Ex parte Young, 1908, 209 U.S. 123, 155, 156, 28 S.Ct. 441, 52 L.Ed. 714; Graves v. Texas Company, 1936, 298 U.S. 393, 403-404, 56 S.Ct. 818, 80 L.Ed. 1236; Georgia R. R. & Banking Co. v. Redwine, 1952, 342 U.S. 299, 305 n. 17, 72 S.Ct. 321, 96 L.Ed. 335.

I would hold that the City of Jackson and the Jackson Airport Authority are proper parties.

All motions attacking this court’s jurisdiction should be overruled.

Nor should this court abstain from considering the merits. The court may not rely on Harrison v. N. A. A. C. P., 1959, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152, which approves abstention where the state law attacked might be construed by the state courts to avoid the constitutional question, since the segregation statutes are incapable of a valid construction. No authority whatsoever may be found for the proposition, that, where a state statute is clearly and unavoidably unconstitutional on its face, comity requires that state courts be allowed the privilege of so declaring. Such a rule would be, not abstention, but abdication of our judicial function. Nor may this court rely on Douglas v. Jeannette, 1943, 319 U.S. 157, 63 S.Ct. 882, 87 L.Ed. 1324, which held that federal courts, as a matter of comity and equitable discretion, *616should not interfere with state criminal proceedings and law enforcement officials when an adequate remedy is provided in the state proceedings for the protection and assertion of all constitutional rights. The primary requirement of Douglas v. Jeannette is that there be an adequate state remedy; that is not the case here. An exception to Jeannette has developed in favor of class actions on behalf of Negroes combating state supported segregation. As stated by the Court of Appeals in Morrison v. Davis, 5 Cir., 1958, 252 F.2d 102, 103:

“This is not such a case as requires the withholding of federal court action for reason of comity, since for the protection of civil rights of the kind asserted Congress has created a separate and distinct federal cause of action. 42 U.S.C.A. § 1983. Whatever may be the rule as to other threatened prosecutions, the Supi'eme Court in a case presenting an identical factual issue affirmed the judgment of the trial court in the Browder case [Browder v. Gayle, D.C.Ala., 142 F.Supp. 707, aff' d 352 U.S. 903, 77 S.Ct. 145,1 L.Ed.2d 114] in which the same contention was advanced. To the extent that this is inconsistent with Douglas v. City of Jeannette, Pa., 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, we must consider the earlier case modified.”

Actually, this is not so much an exception as a practical application of the Jeannette requirement of “adequacy.” For the alternative to this suit is that a great number of individual Negroes would have to raise and protect their constitutional rights through the myriad procedure of local police courts, county courts and state appellate courts, with little prospect of relief before they reach the United States Supreme Court. That Court already has a heavy docket without numerous such cases. Moreover, the proof of segregation may not be a straightforward proposition. As in the case here, the true nature of state policy and practice may become apparent only after proof of a pattern and practice over an extended period of time. Such a record can only be prepared in a single suit which finally settles the issue once and for all. The some 300 citizens arrested in Jackson since May cannot be expected to provide at their trials a record similar to the one in this case; and yet, without it, there may be no way for them to assert and protect their constitutional rights. All these factors go to the “adequacy” of the breach of the peace criminal proceedings and weigh against it. Equally important under the cricumstances of this case is that, for some of the reasons above, Negro citizens in Mississippi will not even attempt to exercise their constitutional rights because their state remedies possibly “adequate in theory” are wholly inadequate in practice.

Another factor bearing on the adequacy of the state criminal proceedings is that the Freedom Riders arrested in this case were travelers in interstate commerce. For such travelers to be delayed by arrest and trial, to be required to return for a de novo county court trial, and perhaps again for an appeal, is an unreasonable burden on interstate commerce when their only crime is the assertion of undisputed statutory and constitutional rights. This burden makes the state criminal proceedings wholly inadequate as an alternative to the present suit.

Any further doubts as to the validity of the distinction drawn in Morrison v. Davis, or the refutation of Douglas v. Jeannette, are put to rest by considering the bearing of the Fourteenth Amendment and 42 U.S.C.A. § 1983 on the duty of this court. The Supreme Court had an opportunity to pass on the basic thrust and purpose of the Fourteenth Amendment soon after it was adopted. In the Slaughter-House Cases, 1872, 16 Wall. 36, 83 U.S. 36, 71-72, 21 L.Ed. 394, the Court said:

“We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on *617the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.
“We do not say that no one else but the negro can share in this protection * * *. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy * *

The last section of the Fourteenth Amendment provides that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” Such legislation was already on the books when the Slaughter-House Cases were decided, and the very section under which the plaintiffs have brought this suit, 42 U.S.C.A. § 1983, may be traced to section 1979 of the Revised Statutes and section 1 of the Ku Klux Act of April 20, 1871, 17 Stat. 13. This section was recently before the Supreme Court in Monroe v. Pape, supra, where the Court discussed in detail its legislative history and purposes. As with the Fourteenth Amendment, this section was passed by Congress to secure the newly-won freedom of the Negro population in the South; it was intended to deal more specifically, however, with the securing of these rights in an atmosphere of violence caused by the unleashing of passions and prejudices which the mere assertion of these rights engendered in a portion of the white population. The Congressional solution was to create a remedy through the federal courts. The Court states:

“The debates were long and extensive. It is abundantly clear that one reason the legislation was passed: was to afford a federal right in federal courts because, by reason of prejudice, passion, neglect, intolerance or otherwise, state laws might not be enforced and the claims of citizens to the enjoyment of rights-, privileges, and immunities guaranteed by the Fourteenth Amendment might be denied by the state agencies.” (365 U.S. at 180, 81 S.Ct. at 480)

Mr. Justice Frankfurter adds to this in his separate opinion what might be called the substantive right to the exercise of federal jurisdiction:

“ * * * the theory that the Reconstruction Congress could not have meant § 1979 principally as a ‘jurisdictional’ provision granting access-to an original federal forum in lieu-of the slower, more costly, more hazardous route of federal appeal from fact-finding state courts, forgets how important providing a federal trial court was among the several purposes of the Ku Klux Act. * * * Section 1979 does create a ‘substantive’ right to relief. But this does not negative the fact that a powerful impulse behind the creation of this ‘substantive’ right was-the purpose that it be available in, and be shaped through, original federal tribunals.” (365 U.S. at 251— 252, 81 S.Ct. at 518.)

Not only is it apparent that the purpose of these provisions is to protect the very kind of rights the plaintiffs assert, but *618the legislative history of section 1983 makes clear that the greater the danger of violence, the more important it is that the federal courts should accept and exercise jurisdiction. Thus, the major portion of the defense of the City of Jackson and of the Attorney General of Mississippi, attempting to justify their actions because of the danger of violence, actually provides the most powerful argument for this court to exercise its jurisdiction and grant a federal remedy to protect the plaintiffs’ rights.

The majority takes the position that the major issue in this case is the questionable use of the breach of the peace statutes, and that under the Harrison case we should abstain to allow the state i-eourts to construe them. The plaintiffs’ (.attack, however, is upon the segregation statutes, not the breach of the peace stat- ' utes, and they allege that the State is practicing the simplest of all evasions — ■ it makes arrests under the breach of the peace statutes for violations of the segregation statutes. If there is substance to this allegation, it would be a fraud upon the jurisdiction of this court to abstain and give recognition to such an evasion. When the constitutionality of a state statute is attacked, we are under a duty to inquire into the law as it is actually' applied. In Poe v. Ullman, supra, such an inquiry demonstrated that there was no case or controversy. In an earlier case, Nashville, C. & St. L. Ry. Co. v. Browning, 1940, 310 U.S. 362, 60 S.Ct. 968, 84 L.Ed. 1254, such an inquiry uncovered a valid administrative amendment to a tax-assessing statute and the alleged discrimination was found to be a valid distinction.4 *In Sterling v. Consantin, supra, the inquiry uncovered the evasion of the Governor of Oklahoma. As a later Supreme Court case interpreted Sterling v. Constantin,

“There martial law was employed in support of an order of the Texas Railroad Commission limiting production of oil in the East Texas field. The Governor was sought to be restrained as part of the main objective to enjoin ‘the execution of an order made by an administrative * * * commission,’ and as such was indubitably within § 266 [now § 2284] .”5

In this case, under the facts shown after a full trial and the law applicable to these facts, I am unable to find a bona fide breach of the peace issue. Rather, the facts clearly show that the arrests are a simple evasion to enforce segregation. This evasion provides no ground for abstention.6

*619The statutes and ordinances which on their face require the segregation of the races in any transportation facility should be declared unconstitutional, null, and void. Brown v. Board of Education, 1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873; Browder v. Gayle, M.D.Ala., 142 F. Supp. 707, aff’d 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1954); Baldwin v. Morgan, 5 Cir., 1958, 251 F.2d 780; Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 F.2d 531.

It should be declared impermissible to use laws which purport to deal with the maintenance of law and order, or any other laws, to maintain segregation of the races in any transportation facility. To that end, it should be declared that no passenger or intended passenger is subject to arrest for disorderly conduct or breach of the peace unless the passenger is himself disorderly or does something more than to occupy some facility or place intended for use by persons of another race and to refuse to remove himself from such place or facility. To arrest a passenger under such circumstances is state-enforced segregation and therefore unconstitutional.

The defendants argue strongly on this last point that the State has merely been asserting its rights under the police power to maintain law and order. The evidence clearly shows, however, that none of the passengers arrested was ever himself disorderly. This poses the question of whether a passenger, whose only crime is the exercise of an undisputed constitutional right, may be arrested because this exercise provokes others to threaten or actually commit disorderly acts. That this is the substance of the defendants’ position is clearly inferred from the facts to which they themselves testified — the signs on the sidewalk outside the waiting rooms pursuant to the segregation ordinance, the arrest of all those who attempted to “crack the laws” of Mississippi (to use the words of the State Attorney General), and the complete lack of disorderly conduct on the passenger’s part at the time of arrest. This inference is made explicit, however, by the testimony of the Mayor, who states that, by definition, anyone who attempts to test the “separation of the races” creates a breach of the peace and provokes disorder.

This issue must be met head on for the evidence shows that on at least two occasions there was a danger of riots and disorder. Although past disorder does not concern us as far as a prospective injunction is concerned, there is a strong possibility that a similar situation would arise after an injunction did go into effect.

The issue is decided by again returning to the basis of this suit, the Fourteenth Amendment and section 1983. The Amendment was adopted and this section passed soon after the completion of the Civil War. A glance at the legislative history of section 1983, cited ih Monroe v. Pape, supra, demonstrates that Congress had before it extensive evidence of the violence caused in the South by the newly-won Negro rights. Yet, nowhere, either in the Amendment or- in section 1983, can there be found an intimation that either the danger or the existence of such violence is grounds for the revocation of constitutional rights granted primarily to Negroes. Rather, .the answer of Congress was to provide federal jurisdiction and a federal remedy for their protection. From this it can only be concluded that the provocation of violence in. others..is-no-def-ense. to__the deñlaTof these plaird±ffs’..c.onstitu±ional rights. If it were, the defendants and this court know that this case would spell the postponement of full enjoyment of constitutional rights by Negroes in, the Deep South for many years to come. The Supreme Court faced and decided this is*620•sue in Cooper v. Aaron, 1958, 358 U.S. 1, 16, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5, when it said:

“The constitutional rights of respondents are not to be sacrificed or yielded to the violence and disorder which have followed upon the actions of the Governor and Legislature. As this Court said some 41 years ago in a unanimous opinion in a case involving another aspect of racial segregation : ‘It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the federal Constitution. Buchanan v. Warley, 245 U.S. 60, 81 [38 S.Ct. 16, 62 L.Ed. 149]. Thus law and order are not here to be preserved by depriving the Negro children of their constitutional rights.”

See also, Sterling v. Constantin, 1932, 287 U.S. 378, 53 S.Ct. 190, 77 L.Ed. 375; Sellers v. Johnson, 8 Cir., 1947, 163 F.2d 877; Rockwell v. Morris, 1961, 12 A.D. 2d 272, 211 N.Y.S.2d 25.

A police officer would be justified in requiring a person to move from a transportation facility because of a sudden, unexpected, and extreme danger of bloodshed which could not be otherwise avoided. There is no evidence in this record, however, of such a situation having arisen. In the case of the incidents on the Jackson City Lines buses, there is not even the intimation of potential disorder. Except for the two Freedom Rider arrivals where crowds gathered outside the transportation terminals, there is no evidence of an actual breach of the peace or a potential which a minimum of police officers could not have readily handled by arresting the individual actually creating the disorder. In the case where the crowd surrounded the Illinois Central, it was easily dispersed before the Riders even arrived, putting it in the same situation as all the others. On May 24, the day of the first .Rider group, although the crowd was sizable, and their attitude hostile, they never created an actual disturbance or reached proportions beyond the ability of the police to handle, even had the Riders been allowed to remain in the terminal. It should, at this point, be noted that the Mayor of Jackson had been notified by the Attorney General of the United States before the Riders’ arrival that, if, in the Mayor’s opinion, the situation could not be handled by local authorities, he stood ready to send in Federal Marshals to aid the enforcement of order as had been done in Montgomery, Alabama. And I think it can be said with assurance that, if at any future time the law enforcement officials of Mississippi find that they cannot themselves handle the provocation of violence caused by the Negroes’ exercise of their constitutional rights, the Attorney General of the United States would stand ready to send in Federal Marshals or any stronger force necessary to enforce order. There is no necessity to forego the exercise of rights guaranteed by the Constitution and laws of the United States in order to prevent violence on the part of persons opposed to the exercise of such rights. Any such surrender to mob rule would tremendously encourage mob spirit. We must continue to be ruled not by the mob, but by the Constitution and laws of our Country.

It is my opinion that a permanent injunction should issue against the City of Jackson, its Mayor, Commissioners and Chief of Police, and the Jackson Municipal Airport Authority to restrain them from acting contrary to the foregoing declarations and to protect to the best of their ability the right of any passenger or intended passenger to exercise his constitutional rights on public transportation facilities.

This permanent injunction should extend to the State Attorney General. While he is not responsible for the enforcement of State laws through the local courts, and has prosecuted none of the arrests found in the record, he partook in meetings both before and after the arrival of the Freedom Riders on May *62124, which determined the manner in which the situation would be, and thereafter was, handled. As the State official primarily charged with the duty to enforce State law, he must be held responsible for the plans made at these meetings .and the way in which they have been carried out.

A permanent injunction should issue against Cicero Carr requiring him to serve without discrimination at the Airport Restaurant all members of the public who use and frequent the Jackson Municipal Airport and request service.

The carriers, Continental Southern Lines, Inc., Southern Greyhound Lines, Illinois Central Railroad, Inc., and Jackson City Lines, Inc., have stated that they are acting under apparent compulsion of City ordinance or State statute in any maintenance of segregation of the races in their transportation facilities of which they may be guilty; and, that, promptly upon this court’s declaration that such statutes and ordinances are unconstitutional, they will remove all signs indicating that any place or facility is intended for the use of persons of any particular race and will not further enforce or have any part in enforcing segregation of the races in any transportation facility. A simple declaratory judgment is therefore all that seems necessary as to said carrier defendants. This court should retain jurisdiction, however, so that further orders and judgments could be entered if it should thereafter be necessary or advisable.

In their prayer for relief, the plaintiffs ask that the enforcement of the segregation statutes and any other statutes used to enforce segregation be enjoined. They include in this prayer not only the restraining of future enforcement, but also the continued enforcement of these statutes against all of those arrested after the filing of this suit. According to the evidence, this includes some 190_. persons. The power of the court to grant this request is supported fully by law. In Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, the Supreme Court reaffirmed the principle that a court of equity could enjoin criminal proceedings commenced after the filing of a suit in federal court to enforce the same right. The Court stated:

“It is further objected * * * that a court of equity has no jurisdiction to enjoin criminal proceedings, by indictment or otherwise, under the state law. This, as a general rule, is true. But there are exceptions. When such indictment or proceeding is brought to enforce an. alleged unconstitutional statute, which is the subject-matter of inquiry in a suit already pending in a Federal court, the latter court having first obtained jurisdiction over the subject-matter, has the right, in both civil and criminal cases, to hold and maintain such jurisdiction, to the exclusion of all other courts, until its duty is fully performed. * * * Where one commences a criminal proceeding who is already party to a suit then pending in a court of equity, if the criminal proceedings are brought to enforce the same right that is in issue before that court, the latter may enjoin such criminal proceedings.”

209 U.S. at 161-162, 28 S.Ct. at 454. See also, In re Sawyer, 1888, 124 U.S. 200, 211, 8 S.Ct. 482, 31 L.Ed. 402; Truax v. Raich, 1915, 239 U.S. 33, 36 S.Ct. 7, 60 L.Ed. 131, aff’g 219 F. 273 (D.Ariz., 1915). In terms of the anti-injunction statute, 28 U.S.C. § 2283, it is a power “in aid of its jurisdiction” to prevent state courts from interfering with the determination of issues properly before the federal court. The propriety of granting such a request, however, is discretionary, and only the strongest equities will support such outright interference with state proceedings already commenced. I am of the opinion that such equities exist in this case.

The plaintiffs have had a motion for preliminary injunction pending since the filing of the original complaint on June *6229, 1961. Although-the plaintiffs filed an amended complaint on July 17 to make more explicit their attack upon the breach of peace arrests, the original complaint is broadly enough framed to include them. When a motion for preliminary injunction has been made, a three-judge court is directed by statute to give an expeditious hearing and decision. 28 U.S. C. § 2284(4) provides, “the application shall be given precedence and assigned for hearing at the earliest practicable day.” 28 U.S.C. § 1253 provides that the granting or denial of this motion may be appealed directly to the Supreme Court; the appeal lies as a matter of right. R. C. A. v. United States, N.D.Ill., 1950, 95 F.Supp. 660, aff’d, 341 U.S. 412, 71 S.Ct. 806, 95 L.Ed. 1062 (1951). Thus, not only wére the plaintiffs entitled to an early hearing and decision, but, in my opinion, they were entitled to a preliminary injunction. As Mr. Justice Brandeis wrote in Union Tool Co. v. Wilson, 1922,:259 U.S. 107, 112, 42 S.Ct. 427, 429, 66 L.Ed. 848: “Legal discretion * * * does not extend to a refusal to apply well-settled principles of law to a conceded state of facts.” The essential facts 'in this' case are undisputed,' the law to be applied is clear, irreparable injury is established by evidence of a clear and continued deprivation of constitutional rights. The defendants’ argument that such an injunction would have changed the status quo and therefore should not have been granted was before the Fourth Circuit Court of Appeals in a very similar case involving segregation of transportation facilities, and was decided adversely to the defendants. Henry v. Greenville Airport Commission, 4 Cir., 1960, 284 F.2d 631. The defendants should not be allowed to rely upon their own continued unconstitutional behavior for the purposes of defeating a motion for preliminary injunction. I would follow the ruling in the Henry case. See also Clemons v. Board of Education, 6 Cir., 1956, 228 F.2d 853, 857; Board of Supervisors v. Wilson, 340 U.S. 909, 71 S.Ct. 294, 95 L.Ed. 657, .affirming 92 F. Supp. 986 (E.D.La., 1950) (preliminary injunction granting admission to L.S.U.). Had such an injunction issued, arrests and prosecution of those arrested would have been terminated, starting at the very latest with the date of the first hearing, July 10, 1961.

The continued refusal to rule on this motion, although it has been pending since the 9th of June, is in violation of this court’s duty under the law, and the refusal should therefore be construed as. a de facto denial. The reason for continuing the first hearing until August 8„ 1961, due to the sickness of an Assistant Mississippi Attorney Genéral, may have-been warranted with respect to relief' against his superior, but the City was. present and, as subsequent events have-shown, it was both willing and able to-carry on a vigorous defense in its own. behalf.

Thus, because of the undisputed facts, the clear violation of the plaintiffs” rights, and the unreasonable delay in ruling on the preliminary injunction, all prosecutions of passengers or intended' passengers who were arrested for breach, of the peace after the filing of the original complaint on June 9, 196.1, but who, as the evidence in this case shows, were-not themselves disorderly, should be enjoined.

Since this dissenting opinion was written, I have had the opportunity to read' the memorandum opinion of Judge Frank M. Johnson, Jr., in Lewis et al. v. The-Greyhound Corporation et al., M.D.AIa., 199 F.Supp. 210, and find myself in agreement with nearly all of the views, expressed by Judge Johnson in that opinion.

I respectfully dissent.

. According to the complaint, “the class is composed of Negro citizens and residents of the State of Mississippi and other states who utilize the facilities and services of the defendant carriers located in the City of Jackson, and located in other cities of the State of Mississippi, and who travel in both intrastate and interstate commerce.”

. Paragraph 15 of the complaint was amended so as to make specific reference to the disorderly conduct and breach of the peace statutes, Secs. 2087.5, 2087.7 and 2089.5 of the Mississippi Code Annotated (1942), as among those under color of which the defendants pursued a policy, practice, custom and usage of segregating Negro and white passengers.

. These statutes are: Title 11, Sections 2351, 2351.5, 2351.7, and Title 28, Seetions 7784, 7785, 7786, 7786-01, 7787, 7787.5, Miss.Code Ann. (1942).

. “Here, according to petitioner’s own claim, all the organs of the state are conforming to a practice, systematic, unbroken for more than forty years, and now question for the first time. It would be a narrow conception of jurisprudence to confine the notion of ‘laws’ to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law. The equal protection clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” Nashville, C. & St. L. Ry. Co. v. Browning, 1940, 310 U.S. 362, 369, 60 S.Ct. 968, 972.

. Phillips v. United States, 1941, 312 U.S. 246, 253, 61 S.Ct. 480, 484, 85 L.Ed. 800.

. See also Evers v. Dwyer, 1958, 358 U.S. 202, 79 S.Ct. 178, 179, 3 L.Ed.2d 222, where the Court ordered a three-judge court, whose jurisdiction was invoked to enjoin Tennessee transportation statutes requiring segregation, to hear that and “any other method of state-enforced segregation on Memphis transportation facilities.”

The Court has continually struck down state-enforced schemes of segregation, whether they were done directly or “ingeniously or ingenuously.” Cooper v. Aaron, 1958, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5; Smith v. Texas, 1940, 311 U.S. 128, 132, 61 S.Ct. 164, 85 L.Ed. 84; Lane v. Wilson, 1939, 307 U.S. 268, 275, 59 S.Ct. 872, 83 L.Ed. 1281; see Bush v. Orleans Parish School *619Board, E.D.La., 194 E.Supp. 182, ail’d sub nom. Gremillion v. United States, 1961, 82 S.Ct. 119. It is not uncommon for the states to attempt to enforce segregation through general police power statutes. Boynton v. Virginia, 1960, 364 U.S. 454, 81 S.Ct. 182, 5 L.Ed.2d 206 (trespass) ; Boman v. Birmingham Transit Co., 5 Cir., 1960, 280 E.2d 531 (breach of the peace).