June 5, 1956
OPINION BY: RIVES
Statement of the Case
The purpose of this action is to test the
constitutionality of both the statutes of the State of Alabama
n1 and the ordinances of the City of Montgomery n2 which require
the segregation of the white and colored races on the motor
buses of the Montgomery City Lines, Inc., a common carrier of
passengers in said City and its police jurisdiction.
n1. Title 48, § 301(31a, b, c), Code of Alabama of 1940,
as amended, which provide:
' § 301(31a). Separate accommodations
for white and colored races. -- All passenger stations in this
state operated by any motor transportation company shall have
separate waiting rooms or space and separate ticket windows
for the white and colored races, but such accommodations for
the races shall be equal. All motor transportation companies
or operators of vehicles carrying passengers for hire in this
state, whether intrastate or interstate passengers, shall at
all times provide equal but separate accommodations on each
vehicle for the white and colored races. The conductor or agent
of the motor transportation company in charge of any vehicle
is authorized and required to assign each passenger to the division
of the vehicle designated for the race to which the passenger
belongs; and, if the passenger refuses to occupy the division
to which he is assigned, the conductor or agent may refuse to
carry the passenger on the vehicle; and, for such refusal, neither
the conductor or agent of the motor transportation company nor
the motor transportation company shall be liable in damages.
Any motor transportation company or person violating the provisions
of this section shall be guilty of a misdemeanor and, upon conviction,
shall be fined not more than five hundred dollars for each offense;
and each day's violation of this section shall constitute a
'The provisions of this section shall be administered
and enforced by the Alabama public service commission in the
manner in which provisions of the Alabama Motor Carrier Act
of 1939 are administered and enforced. (1945, p. 731, appvd.
July 6, 1945.)
' § 301(31b). Operators of passenger
stations and carriers authorized to segregate white and colored
races. -- All passenger stations in this state operated by or
for the use of any motor transportation company shall be authorized
to provide separate waiting rooms, facilities, or space, or
separate ticket windows, for the white and colored races but
such accommodations for the races shall be equal. All motor
transportation companies and operators of vehicles, carrying
passengers for hire in this states, whether intrastate of interstate
passengers, are authorized and empowered to provide separate
accommodations on each vehicle for the white and colored races.
Any officer or agent of such motor transportation company or
operator, in charge of any vehicle, is authorized to assign
or reassign each passenger or person to a division, section
or seat on the vehicle designated by such company or operator,
or by such officer or agent, for the race to which the passenger
or person belongs; and if the passenger or person refuses to
occupy the division, section or seat to which he is so assigned,
such officer or agent may refuse further to carry the passenger
on the vehicle. For such refusal neither the officer nor agent,
nor the motor transportation company, nor operator, shall be
liable in damages. (1947, p. 40, § 1, appvd. July 18, 1947.)
'301(31c). Failure to comply with rules and
regulations as to segregation of white and colored races. --
It shall be unlawful for any person willfully to refuse or fail
to comply with any reasonable rule, regulation, or directive
of any operator of a passenger station in this state operated
by or for the use of any such motor transportation company,
or of any authorized officer or agent of such operator, providing
separate waiting rooms, facilities, or space, or separate ticket
windows, for white and colored races; or willfully to refuse
or fail to comply with any reasonable assignment or reassignment
by any officer or agent in charge of any vehicle of any such
motor transportation company or of any operator of vehicles
carrying passengers for hire, of any passenger or person to
a division, section, or seat on such vehicle designated by such
officer or agent for the race to which such passenger or person
belongs; any person so refusing or failing to comply with any
such reasonable rule, regulation, or assignment, as aforesaid,
shall be guilty of a misdemeanor and upon conviction shall be
fined not more than $ 500.00 for such offense. (1947, p. 40,
§ 2, appvd. July 18, 1947.)'
n2. Section 10, Chapter 6, Code of the City
of Montgomery, 1952, which provides:
'Every person operating a bus line in the
city shall provide equal but separate accommodations for white
people and negroes on his buses, by requiring the employees
in charge thereof to assign passengers seats on the vehicles
under their charge in such manner as to separate the white people
from the negroes, where there are both white and negroes on
the same car; provided, however, that negro nurses having in
charge white children or sick or infirm white persons, may be
assigned seats among white people.
'Nothing in this section shall be construed
as prohibiting the operators of such bus lines from separating
the races by means of separate vehicles if they see fit.'
Section 11 of Chapter 6, Montgomery City Code
of 1952, further provides:
'Any employee in charge of a bus operated
in the city shall have the powers of a police officer of the
city while in actual charge of any bus, for the purpose of carrying
out the provisions of the preceding section, and it shall be
unlawful for any passenger to refuse or fail to take a seat
among those assigned to the race to which he belongs, at the
request of any such employee in charge, if there is such a seat
The plaintiffs are four Negro citizens who
bring this action for themselves and on behalf of all other
Negroes similarly situated. n3 The defendants are the members
of the Board of Commissioners and the Chief of Police of the
City of Montgomery, the members of the Alabama Public Service
Commission, The Montgomery City Lines, Inc., and two of its
n3. Rule 23(a), Fed.Rules Civ.Proc. 28 U.S.C.A.
Each of the four named plaintiffs has either been required by
a bus driver or by the police to comply with said segregation
laws or has been arrested and fined for her refusal so to do.
The plaintiffs, along with most other Negro citizens of the
City of Montgomery, have since December 5, 1955, and up to the
present time, refrained from making use of the transportation
facilities provided by Montgomery City Lines, Inc. Plaintiffs
and other Negroes desire and intend to resume the use of said
buses if and when they can do so on a non-segregated basis without
fear of arrest.
The members of the Board of Commissioners
and the Chief of Police of the City of Montgomery in their answers
to the complaint admit 'that they seek to enforce the statutes
of the State of Alabama and the ordinances of the City of Montgomery,
Alabama', and further aver that 'segregation of privately owned
buses within cities within the State of Alabama is in accordance
with the laws of the State of Alabama and the City of Montgomery.'
The members of the Alabama Public Service
Commission deny that they, in their official capacities as such
members have any jurisdiction over, or have issued any orders
relating to the separation of the races on buses operated wholly
within the City of Montgomery and its police jurisdiction. On
information and belief they allege that the members of the Board
of Commissioners and the Chief of Police of said City 'have
sought to enforce by legal means constitutional and valid statutes
and ordinances providing for separate but equal seating arrangements
on buses operated in the City of Montgomery, Alabama, and its
The Montgomery City Lines, Inc., admits that
it has operated, and pursuant to orders of a State Court, continues
to operate 'its buses as required by the Statutes and Ordinances
set out in the Complaint requiring it to provide equal but separate
accommodations for the white and colored races'. Without dispute
the evidence is to the effect that, other than being separate,
such accommodations are equal.
The defendants, Blake and Cleere, admit they
are employees of the Montgomery City Lines and drivers of its
buses, that as such they have acted pursuant to orders of said
Company which 'has operated its buses on the basis of racial
segregation as required by said statutes and ordinances'. They
deny that as drivers of said buses they are exercising the powers
of police officers in the enforcement of said statutes and ordinances.
The complaint prays for the convening of a
three-judge district court as provided by Title 28 of the United
States Code, § 2284; for a declaratory judgment as to whether
the enforcement of said statutes and ordinances abridges the
privileges and immunities of plaintiffs as citizens of the United
States, or deprives them of liberty without due process of law,
or denies to them the equal protection of the laws, as secured
by the Fourteenth Amendment to the Constitution of the United
States, n4 and the rights and privileges secured to them by
Title 42, United States Code, §§ 1981 and 1983. n5
The complaint further prays that the defendants be both temporarily
and permanently enjoined from enforcing the statutes and ordinances
claimed to be unconstitutional and in conflict with said Federal
n4. Fourteenth Amendment, § 1:
'All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens
of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor
shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its
jurisdiction the equal protection of the laws.'
n5. ' § 1981. Equal rights under the
'All persons within the jurisdiction of the
United States shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give evidence,
and to the full and equal benefit of all laws and proceedings
for the security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, penalties,
taxes, licenses, and exactions of every kind, and to no other.'
' § 1983. Civil action for deprivation
'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
Federal jurisdiction is invoked under Title
28, United States Code, §§ 1331 and 1343(3), n6 and
under Title 42, United States Code, §§ 1981 and 1983,
footnote 5, supra. We think that the validity of both the State
statutes and the City ordinances is in question, but if only
the City ordinances are involved, Federal jurisdiction would
still exist because the Constitution and statutes of Alabama
authorize the adoption of City ordinances 'not inconsistent
with the laws of the state,' n7 and because the constitutional
phrase 'equal protection of the laws' refers to City ordinances
adopted under State authority as well as to State statutes.
n6. ' § 1331. Federal question; amount in controversy
'The district courts shall have original jurisdiction
of all civil actions wherein the matter in controversy exceeds
the sum or value of $ 3,000, exclusive of interest and costs,
and arises under the Constitution, laws or treaties of the United
' § 1343. Civil rights
'The district courts shall have original jurisdiction
of any civil action authorized by law to be commenced by any
'(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.'
n7. Constitution of Alabama of 1901, §
89; Alabama Code of 1940, Title 37, § 455.
n8. Buchanan v. Warley, 245 U.S. 60, 38 S.Ct.
16, 62 L.Ed. 149; Cf. 42 U.S.C.A. § 1983; Carlson v. People
of State of California, 310 U.S. 106, 60 S.Ct. 746, 84 L.Ed.
1104; Lovell v. City of Griffin, 303 U.S. 444, 58 S.Ct. 666,
82 L.Ed. 949; North American Cold Storage Co. v. City of Chicago,
211 U.S. 306, 29 S.Ct. 101, 53 L.Ed. 195; City of El Paso v.
Texas Cities Gas Co., 5 Cir., 100 F.2d 501.
Jurisdiction of Three Judge District Court
A three judge district court is required for
the granting of 'An interlocutory or permanent injunction restraining
the enforcement, operation or execution of any State statute
by restraining the action of any officer of such State'. 28
U.S.C.A. § 2281. According to the complaint and the answers,
the separation of the races on the buses is required both by
State statutes and by City ordinances. Admittedly, therefore,
State statutes are involved. The defendants claim, however,
that the statutes and ordinances are being enforced by municipal
officers only, and not by 'any officer of such State'. 28 U.S.C.A.
§ 2281, supra.
If the members of the Alabama Public Service
Commission are proper parties defendant, a matter to be hereinafter
discussed, then it must be conceded that the objection to the
jurisdiction of the three judge district court fails. Irrespective
of the answer to that question, however, we think that the three
judge district court has jurisdiction.
The State statutes, footnote 1, supra, vest
in the defendant bus drivers the authority to enforce, and,
notwithstanding their insistence to the contrary, we think that
when so engaged the bus drivers clearly are officers of the
The City Commissioners have important duties
to perform in connection with the enforcement, operation, and
execution of State statutes. Under Alabama law, a municipal
corporation 'is essentially a public agency, a local unit of
government, invested with a portion of the sovereign power of
the state, for the benefit of its inhabitants.' Cooper v. Town
of Valley Head, 212 Ala. 125, 101 So. 874, 875. The defendant
Chief of Police has authority to make arrests for violations
of State statutes, 1940 Code of Alabama, Title 15, § 152.
The City Recorder in criminal cases has the power of an exofficio
justice of the peace. 1940 Code of Alabama, Title 37, §
585. All of the City officials admit in their answers that they
are enforcing the State statutes. An official, though localized
by his geographic activities and the mode of his selection,
is performing a State function when he enforces a statute which
'embodies a policy of state-wide concern'. n9
n9. Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct.
678, 680, 79 L.Ed. 1322; Rorick v. Board of Commissioners, 307
U.S. 208, 212, 59 S.Ct. 808, 83 L.Ed. 1242; City of Cleveland
v. United States, 323 U.S. 329, 332, 65 S.Ct. 280, 89 L.Ed.
274; Watch Tower Bible & Tract Society v. City of Bristol,
D.C.Conn., 24 F.Supp. 57, affirmed 305 U.S. 572, 59 S.Ct. 246,
83 L.Ed. 361; Suncrest Lumber Co. v. North Carolina Park Commission,
4 Cir., 29 F.2d 823.
Very clearly, the three judge district court
has jurisdiction. n10
n10. If, however, the proceedings were not such as to require
the presence of three judges, the judgment would still be valid
as the act of the court of one judge, since that judge concurs
and joins in the rendition of the judgment. Public Service Commission
v. Brasher Freight Lines, Inc., 312 U.S. 621, 626, 61 S.Ct.
784, 85 L.Ed. 1083; O'Malley v. U.S., 8 Cir., 128 F.2d 676,
The defendants, relying on Alabama Public
Service Commission v. Southern Railway Co., 341 U.S. 341, 71
S.Ct. 762, 95 L.Ed. 1002, insist that even if the Federal court
has jurisdiction, it should, in its discretion as a court of
equity, and for reasons of comity, decline to exercise such
jurisdiction until the State courts have ruled on the construction
and validity of the statutes and ordinances. The short answer
is that doctrine has no application where the plaintiffs complain
that they are being deprived of constitutional civil rights,
for the protection of which the Federal courts have a responsibility
as heavy as that which rests on the State courts. n11
n11. Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed.
1281; Mitchell v. Wright, 5 Cir., 154 F.2d 924, 926; Romero
v. Weakley, 9 Cir., 226 F.2d 399, 402; Wilson v. Beebe, D.C.Del.,
99 F.Supp. 418, 420. Cf. Doud v. Hodge, 350 U.S. 485, 487, 76
Without repeating the averments of the complaint
we hold that they are clearly sufficient to constitute this
a class action on behalf of the four individual plaintiffs and
of all other Negro citizens similarly situated. See Rule 23(a),
It was probably not necessary for the plaintiffs
to sue the members of the Board of Commissioners and the Chief
of Police, not only as such but also individually, when no relief
is sought against them by way of damages. If, however, the plaintiffs'
contentions are sustained, these defendants are acting not only
in their capacities as municipal officers, but also as officers
of the State; and, further, are possibly transcending the scope
of their office in any capacity when they compel obedience to
statutes and ordinances attacked as unconstitutional. Moreover,
in issuing and enforcing an injunction, a court of equity acts
in personam. If, as we trust will be true, no relief becomes
necessary against any of them in their individual capacities,
their joinder as individuals will prove harmless. The motion
to strike said parties in their individual capacities is therefore
The members of the Alabama Public Service
Commission object to their joinder as parties defendant and
move to dismiss the action as against them because they say
that neither they nor the Commission have any jurisdiction over
the buses which are being operated within the City of Montgomery
and its police jurisdiction. n12
n12. Compare Code of Alabama 1940, Title 48, § 239 with
2 of the Alabama Motor Carrier Act of 1939 carried into the
pocket supplement of the Alabama Code as Title 48, § 301(2).
In the Act approved July 6, 1945, General
Acts of Alabama 1945, p. 731, now carried into the pocket supplement
of the 1940 Code of Alabama as Title 48, 301(31a), see footnote
1, supra, appears the following significant paragraph: 'The
provisions of this section shall be administered and enforced
by the Alabama public service commission in the manner in which
provisions of the Alabama Motor Carrier Act of 1939 are administered
Testifying as a witness, the President of
the Alabama Public Service Commission admitted that on April
24, 1956, he sent a telegram to the National City Lines of Chicago,
of which the Montgomery City Lines, Inc., is a subsidiary, reading
'As President of the Alabama Public Service
Commission, elected by the people of Alabama, sworn to uphold
the segregation laws of this state, which include all forms
of public transportation, I hereby defy ruling handed down by
the United States Supreme Court ordering desegregation on public
carriers. Alabama state law requiring segregation of the races
on buses still stands. All public carriers in Alabama are hereby
directed to strictly adhere to all present existing segregation
laws in our state or suffer the consequences.
'(s) C. C. (Jack) Owen, President Alabama
That telegram was sent without the knowledge
or concurrence of the other two Commissioners.
Since the 1945 Act expressly imposes on the
Alabama Public Service Commission the duty of administering
and enforcing its requirements as to segregation of the races,
and since the President of the Commission has acted so positively
and affirmatively to that end, the motion to dismiss the action
as against the members of the Alabama Public Service Commission
should be and the same is hereby denied. n13
n13. If, in law and fact, the Commission has no jurisdiction
over the operation of the buses here involved, the retention
of the members of the Commission as parties defendant will be
harmless to them, even if erroneous.
Validity of Separate But Equal Doctrine as
Applied to Intrastate Transportation
The ultimate question is whether the statutes
and ordinances requiring the segregation of the white and colored
races on the common carrier motor buses in the City of Montgomery
and its police jurisdiction are unconstitutional and invalid.
Unless prohibited by the Constitution of the United States,
the power to require such segregation is reserved to the States
or to the people. -- See Tenth Amendment.
In their private affairs, in the conduct of
their private businesses, it is clear that the people themselves
have the liberty to select their own associates and the persons
with whom they will do business, unimpaired by the Fourteenth
Amendment. The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27
L.Ed. 835. Indeed, we think that such liberty is guaranteed
by the due process clause of that Amendment.
There is, however, a difference, a constitutional
difference, between voluntary adherence to custom and the perpetuation
and enforcement of that custom by law. Shelley v. Kraemer, 334
U.S. 1, 13, 68 S.Ct. 836, 92 L.Ed. 1161. The Fourteenth Amendment
provides that 'No State shall deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.'
Those provisions do not interfere with the
police power of the States so long as the state laws operate
alike upon all persons and property similarly situated. Barbier
v. Connolly, 113 U.S. 27, 31, 32, 5 S.Ct. 357, 28 L.Ed. 923.
That Amendment 'merely requires that all persons subjected to
such legislation shall be treated alike, under like circumstances
and conditions, both in the privileges conferred and in the
liabilities imposed.' Marchant v. Pennsylvania Railroad Co.,
153 U.S. 380, 390, 14 S.Ct. 894, 897, 38 L.Ed. 751. The equal
protection clause requires equality of treatment before the
law for all persons without regard to race or color. See e.g.
Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664; Buchanan
v. Warley, 245 U.S. 60, 38 S.Ct. 16, 62 L.Ed. 149; Gong Lum
v. Rice, 275 U.S. 78, 48 S.Ct. 91, 72 L.Ed. 172; Shelley v.
Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161.
In Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct.
1138, 41 L.Ed. 256, decided in 1896, the Supreme Court held
as to intrastate commerce that a Louisiana statute, LSA-R.S.
45:528 et seq., requiring railway companies to provide equal
but separate accommodations for the white and colored races
was not in conflict with the provisions of the Fourteenth Amendment.
That holding was repeatedly followed in later cases. Chesapeake
& Ohio Ry, Co. v. Kentucky, 1900, 179 U.S. 388, 21 S.Ct.
101, 45 L.Ed. 244; Chiles v. Chesapeake & Ohio Ry. Co.,
1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936; McCabe v. Atchison,
T. & S.F. Ry. Co., 1914, 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed.
In Morgan v. Virginia, 1946, 328 U.S. 373,
66 S.Ct. 1050, 90 L.Ed. 1317, the Court held that a state statute
requiring segregated seats for Negro passengers on interstate
buses was an unconstitutional burden of interstate commerce.
In Henderson v. United States, 1950, 339 U.S. 816, 70 S.Ct.
843, 94 L.Ed. 1302, the Court held that interstate railroad
regulations and practices assigning a separate table in a dining
car to Negroes contravened the Interstate Commerce Act, 49 U.S.C.A.
§ 1 et seq. The Court referred to the statutory right as
'a fundamental right of equality of treatment,' and cited cases
construing the Fourteenth Amendment, see 339 U.S. 825, 70 S.Ct.
847, though the Court did not reach the constitutional question.
The reasoning applied was similar to that employed in Shelley
v. Kraemer, 334 U.S. 1, 22, 68 S.Ct. 836, 92 L.Ed. 1161, where
the Court recognized that the underlying philosophy of the Fourteenth
Amendment is the equality before the law of each individual.
In the field of college education, beginning
in 1938 and continuing to the present time, the Court has first
weakened the vitality of, and has then destroyed, the separate
but equal concept. State of Missouri ex rel. Gaines v. Canada,
1938, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Sipuel v. Board
of Regents of University of Oklahoma, 1948, 332 U.S. 631, 68
S.Ct. 299, 92 L.Ed. 247; Fisher v. Hurst, 1948, 333 U.S. 147,
68 S.Ct. 389, 92 L.Ed. 604; Sweatt v. Painter, 1950, 339 U.S.
629, 70 S.Ct. 848, 94 L.Ed. 1114; McLaurin v. Oklahoma State
Regents, 1950, 339 U.S. 637, 70 S.Ct. 851, 94 L.Ed. 1149; State
of Florida ex rel. Hawkins v. Board of Control of Florida, 1954,
347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Tureaud v. Board
of Supervisors of Louisiana State University, 1954, 347 U.S.
971, 74 S.Ct. 784, 98 L.Ed. 1112; Lucy v. Adams, 1955, 350 U.S.
1, 76 S.Ct. [**19] 33; State of Florida ex rel. Hawkins v. Board
of Control, 350 U.S. 413, 76 S.Ct. 464; Board of Trustees of
University of North Carolina v. Frasier, 1956, 350 U.S. 979,
76 S.Ct. 467.
The separate but equal concept had its birth
prior to the adoption of the Fourteenth Amendment in the decision
of a Massachusetts State court relating to public schools. Roberts
v. City of Boston, 1849, 5 Cush. 198, 59 Mass. 198. The doctrine
of that case was followed in Plessy v. Ferguson, supra. In the
School Segregation Cases, Brown v. Board of Education of Topeka,
1954, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v.
Sharpe, 1954, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884, the
separate but equal doctrine was repudiated in the area where
it first developed, i.e., in the field of public education.
On the same day the Supreme Court made clear that its ruling
was not limited to that field when it remanded 'for consideration
in the light of the Segregation Cases and conditions that now
prevail' a case involving the rights of Negroes to use the recreational
facilities of city parks. Muir v. Louisville Park Theatrical
Association, 1954, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112.
Later the Fourth Circuit expressly repudiated
the separate but equal doctrine as applied to recreational centers.
Dawson v. Mayor and City Council of Baltimore, 4 Cir., 220 F.2d
386, 387. Its judgment was affirmed by the Supreme Court, 350
U.S. 877, 76 S.Ct. 133. The doctrine has further been repudiated
in holdings that the cities of Atlanta and of Miami cannot meet
the test by furnishing the facilities of their municipal golf
courses to Negroes on a segregated basis. Rice v. Arnold, 340
U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621; Holmes v. City of Atlanta,
350 U.S. 879, 76 S.Ct. 141.
Even a statute can be repealed by implication.
A fortiori, a judicial decision, which is simply evidence of
the law and not the law itself, may be so impaired by later
decisions as no longer to furnish any reliable evidence. n14
n14. This principle is aptly illustrated by the difference with
which the Fourth Circuit treated Plessy v. Ferguson as a binding
precedent in 1950, Boyer v. Garrett, 183 F.2d 582 and in 1955,
Flemming v. South Carolina Electric p Gas Co., 224 F.2d 752.
In their change of views that distinguished Court headed by
Chief Judge Parker was governed by the rule best stated by Judge
Parker himself, speaking for a three judge district court in
Barnette v. West Virginia State Board of Education, D.C., 47
F.Supp. 251, 252-253:
'Ordinarily we would feel constrained to follow
an unreversed decision of the Supreme Court of the United States,
whether we agreed with it or not. It is true that decisions
are but evidences of the law and not law itself; but the decisions
of the Supreme Court must be accepted by the lower courts as
binding upon them if any orderly administration of justice is
to be attained. The developments with respect to the Gobitis
case (Minersville School District v. Gobitis, 310 U.S. 586,
60 S.Ct. 1010, 84 L.Ed. 1375) however, are such that we do not
feel that it is incumbent upon us to accept it as binding authority.
Of the seven justices now members of the Supreme Court who participated
in that decision, four have given public expression to the view
that it is unsound, the present Chief Justice in his dissenting
opinion rendered therein and three other justices in a special
dissenting opinion in Jones v. City of Opelika, 316 U.S. 584,
62 S.Ct. 1231, 1251, 86 L.Ed. 1691. The majority of the court
in Jones v. City of Opelika, moreover, thought it worth while
to distinguish the decision in the Gobitis case, instead of
relying upon it as supporting authority. Under such circumstances
and believing, as we do, that the flag salute here required
is violative of religious liberty when required of persons holding
the religious views of plaintiffs, we feel that we would be
recreant to our duty as judges, if through a blind following
of a decision which the Supreme Court itself has thus impaired
as an authority, we should deny protection to rights which we
regard as among the most sacred of those protected by constitutional
To like effect is the opinion of Judge Frank
for the Second Circuit in Perkins v. Endicott Johnson Corporation,
128 F.2d 208, 217-218:
'We would stultify ourselves and unnecessarily
burden the Supreme Court if -- adhering to the dogma, obviously
fictional to any reader of its history, that alterations in
that court's principles of decision never occur unless recorded
in explicit statements that earlier decisions are overruled
-- we stubbornly and literally followed decisions which have
been, but not too ostentatiously, modified. 'The life of the
law,' as Mr. Justice Holmes said, 'has been experience.' Legal
doctrines, as first enunciated, often prove to be inadequate
under the impact of ensuing experience in their practical application.
And when a lower court perceives a pronounced new doctrinal
trend in Supreme Court decisions, it is its duty, cautiously
to be sure, to follow not to resist it.' See also United States
v. Girouard, 1 Cir., 149 F.2d 760, 765, dissenting opinion of
Judge Woodbury, reversed 328 U.S. 61, 66 S.Ct. 826, 90 L.Ed.
1084; New England Mutual Life Ins. Co. v. Welch, 1 Cir., 153
F.2d 260, 262; Picard v. United Aircraft Corp., 2 Cir., 128
F.2d 632, 636; opinion by Judge Learned Hand; Spector Motor
Service v. Walsh, 2 Cir., 139 F.2d 809, 814, opinion by Circuit
Judge Clark; Gardella v. Chandler, 2 Cir., 172 F.2d 402, 409;
United States v. Ullmann, 2 Cir., 221 F.2d 760, 762; 'The Attitude
of Lower Courts to Changing Precedents', 50 Yale L.J. 1448.
We cannot in good conscience perform our
duty as judges by blindly following the precedent of Plessy
v. Ferguson, supra, when our study leaves us in complete agreement
with the Fourth Circuit's opinion n15 in Flemming v. South Carolina
Electric & Gas Co., 224 F.2d 752, appeal dismissed April
23, 1956, 351 U.S. 901, 76 S.Ct. 692, that the separate but
equal doctrine can no longer be safely followed as a correct
statement of the law. In fact, we think that Plessy v. Ferguson
has been impliedly, though not explicitly, overruled, and that,
under the later decisions, there is now no rational basis upon
which the separate but equal doctrine can be validly applied
to public carrier transportation within the City of Montgomery
and its police jurisdiction. The application of that doctrine
cannot be justified as a proper execution of the state police
n15. That opinion is entitled to great respect, especially in
view of the distinction and learning of the judges who compose
that Court, Circuit Judges Parker, Soper and Dobie.
n16. Shelley v. Kraemer, 334 U.S. 1, 21, 68 S.Ct. 836, 92 L.Ed.
1611; Morgan v. Virginia, 328 U.S. 373, 380, 66 S.Ct. 1050,
90 L.Ed. 1317; Buchanan v. Warley, 245 U.S. 60, 74, 38 S.Ct.
16, 62 L.Ed. 149; City of Birmingham v. Monk, 5 Cir., 185 F.2d
We hold that the statutes and ordinances requiring
segregation of the white and colored races on the motor buses
of a common carrier of passengers in the City of Montgomery
and its police jurisdiction violate the due process and equal
protection of the law clauses of the Fourteenth Amendment to
the Constitution of the United States. This holding does not,
however, become effective until the entry of formal judgment.
The parties are requested to submit to the Court in writing
within two weeks from the date of this opinion their views as
to the form of judgment to be entered, and as to whether such
judgment should be stayed in the event of an appeal.
DISSENT BY: LYNNE
DISSENT: LYNNE, District Judge (dissenting).
Only a profound, philosophical disagreement
with the ultimate conclusion of the majority 'that the separate
but equal doctrine can no longer be safely followed as a correct
statement of the law' would prompt this, my first dissent. But
I should consider myself recreant both to conscience and duty
in withholding my views because of the affection and esteem
which I bear for my associates.
For many years as a trial judge in the state
and federal systems I have endeavored faithfully to understand
and apply precedents established by the opinions of appellate
courts. This was not a blind obedience to a legalistic formula
embodied in the rule of stare decisis. It was the result of
a simple belief that the laws which regulate the conduct, the
affairs, and sometimes the emotions of our people should evidence
not only the appearance but also the spirit of stability.
Judges of trial courts frequently find themselves
in disagreement with the rationale of an old, but clearly controlling
precedent. That is so because their positions do not insulate
them from those changing physical and metaphysical concepts
which form a part of the life process. But they are neither
designed nor equipped to perform the legislative function of
putting off the old and putting on the new. To arrogate to themselves
this prerogative, in my humble opinion, would be the first,
fatal step in making hollow the proud boast that ours is a 'government
of laws and not of men.'
Judge Rives, just the other day, delivering
the opinion of the Court of Appeals for the Fifth Circuit, sitting
en banc, in Howard v. United States, 232 F.2d 274, 275, stated
my position, clearly and concisely:
'In the face of such recognition by the Supreme
Court of a test of criminal responsibility, we do not feel at
liberty to consider and decide whether in our opinion the recent
modification of such test in the District of Columbia is sound
or unsound, nor whether some other test should be adopted. This
Circuit follows the law as stated by the Supreme Court and leaves
any need for modification thereof to that Court.' (Emphasis
The majority recognize, it was conceded in
oral arguments by counsel for plaintiffs, that Plessy v. Ferguson,
1896, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256, is precisely
in point, and that its holding has been repeatedly followed
in later transportation cases. n1 Its authority obviously was
unaffected by the action of the Supreme Court in dismissing
the appeal in South Carolina Electric & Gas Co. v. Flemming,
351 U.S. 901, 76 S.Ct. 692. The citation of Slaker v. O'Connor,
278 U.S. 188, 49 S.Ct. 158, 73 L.Ed. 258, is convincing that
it did not place the stamp of its approval upon the decision
of the Fourth Circuit in Flemming v. South Carolina Electric
& Gas Co., 224 F.2d 752, but simply concluded that its judgment
was not final and hence that [**25] the appeal did not lie.
28 U.S.C.A. § 1254(2).
n1. Chesapeake & Ohio Ry. Co. v. Kentucky, 1900, 179 U.S.
388, 21 S.Ct. 101, 45 L.Ed. 244; Chiles v. Chesapeake &
Ohio Ry. Co., 1910, 218 U.S. 71, 30 S.Ct. 667, 54 L.Ed. 936;
McCabe v. Atchison, T & S.F. Ry. Co., 1914, 235 U.S. 151,
35 S.Ct. 69, 59 L.Ed. 169.
In complete agreement with the Fourth Circuit's
opinion in Flemming that the separate but equal doctrine can
no longer be safely followed as a correct statement of the law,
the majority conclude that Plessy v. Ferguson, in which that
doctrine made its first appearance sixty years ago, has been
impliedly, though not explicitly overruled. While I share their
great respect for Judges Parker, Soper and Dobie, I do not at
A comparatively new principle of pernicious
implications has found its way into our jurisprudence. n2 Lower
courts may feel free to disregard the precise precedent of a
Supreme Court opinion if they perceive a 'pronounced new doctrinal
trend' in its later decisions which would influence a cautious
judge to prophesy that in due time and in a proper case such
established precedent will be overturned explicitly. Peculiarly
appropriate in this context is the following language of Judge
Woodbury, writing for the First Circuit in New England Mutual
Life Inc. Co. v. Welch, 153 F.2d 260, 262:
n2. Barnette v. West Virginia State Board of Education, D.C.1942,
47 F.Supp. 251; Perkins v. Endicott Johnson Corporation, 2 Cir.,
1942, 128 F.2d 208; Spector Motor Service v. Walsh, 2 Cir.,
1943, 139 F.2d 809; Gardella v. Chandler, 2 Cir., 1949, 172
F.2d 402, 409; United States v. Ullmann, 2 Cir., 1955, 221 F.2d
760; United States v. Girouard, 1 Cir., 1945, 149 F.2d 760;
50 Yale Law Journal 1448.
'Furthermore we find no indication from anything
said therein of a purpose to depart from the rule of the earlier
decisions cited above. Under these circumstances we see no occasion
even to consider the basic question whether we would adopt the
doctrine of Barnette v. West Virginia State Board of Education,
D.C., 47 F.Supp. 251, 253, and Spector Motor Service v. Walsh,
2 Cir., 139 F.2d 809, 817, 823, and in extraordinary situations
disregard controlling decisions of the Supreme Court not yet
explicitly overruled. It will suffice to say that we would feel
disposed to consider taking such a course only when there are
the clearest indications that the controlling decision of the
Supreme Court, though not formally overruled, would no longer
be followed by that Court and we find no such indications here.'
In 1950, the Fourth Circuit had before it
the case of Boyer v. Garrett, 183 F.2d 582, involving an officially
adopted rule providing for the segregation of races in athletic
activities in the public parks and playgrounds in the City of
Baltimore. In affirming the judgment of the District Court,
the same judges who decided Flemming held:
'The contention of plaintiffs is that, notwithstanding
this equality of treatment, the rule providing for segregation
is violative of the provisions of the federal Constitution.
The District Court dismissed the complaint on the authority
of Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
256; and the principal argument made on appeal is that the authority
of Plessy v. Ferguson has been so weakened by subsequent decisions
that we should no longer consider it as binding. We do not think,
however, that we are at liberty thus to disregard a decision
of the Supreme Court which that court has not seen fit to overrule
and which it expressly refrained from reexamining, although
urged to do so, in the very recent case of Sweatt v. Painter,
(339 U.S. 629) 70 S.Ct. 848 (94 L.Ed. 1114). It is for the Supreme
Court, not us, to overrule its decisions or to hold them outmoded.'
In 1955, in Flemming, an intrastate transportation
case, reversing the district judge, the court wrote:
'We do not think that the separate but equal
doctrine of Plessy v. Ferguson, supra, can any longer be regarded
as a correct statement of the law. That case recognizes segregation
of the races by common carriers as being governed by the same
principles as segregation in the public schools; and the recent
decisions in Brown v. Board of Education (of Topeka), 347 U.S.
483, 74 S.Ct. 686, 98 L.Ed. 873 and Bolling v. Sharpe, 347 U.S.
497, 74 S.Ct. 693, 98 L.Ed. 884, which relate to public schools,
leave no doubt that the separate but equal doctrine approved
in Plessy v. Ferguson has been repudiated. That the principle
applied in the school cases should be applied in cases involving
transportation, appears quite clearly from the recent case of
Henderson v. United States, 339 U.S. 816, 70 S.Ct. 843, 94 L.Ed.
1302, where segregation in dining cars was held violative of
a section of the interstate commerce act providing against discrimination.'
Within this five year interval the Supreme
Court had spoken pertinently but once, in the case of Brown
v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686,
98 L.Ed. 873, since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct.
693, 98 L.Ed. 884, did not discuss Plessy v. Ferguson and appears
to have been decided on a parity of reasoning. My study of Brown
has convinced me that it left unimpaired the "separate
but equal" (347 U.S. 483, 74 S.Ct. 688) doctrine in a local
transportation case and I perceive no pronounced new doctrinal
Of course I appreciate the care with which
the Supreme Court limits its pronouncements upon great constitutional
questions to the narrow issues before it and the only issue
in Brown involved a collision between the Fourteenth Amendment
and state laws commanding segregation in the public schools.
But in Brown the Court's opinion referred to Plessy v. Ferguson
six times and to its "separate but equal" doctrine
on four occasions. It epitomized its concept of that doctrine
as follows: 'Under that doctrine, equality of treatment is accorded
when the races are provided substantially equal facilities,
even though these facilities be separate.' Its ultimate conclusion
was, and this I conceive to be the rationale of its decision,
'that in the field of public education the doctrine of 'separate
but equal' has no place. Separate educational facilities are
It seems to me that the Supreme Court therein
recognized that there still remains an area within our constitutional
scheme of state and federal governments wherein that doctrine
may be applied even though its applications are always constitutionally
suspect and for sixty years it may have been more honored in
the breach than in the observance. Granted that the trend of
its opinions is to the effect that segregation is not to be
permitted in public facilities furnished by the state itself
and the moneys of the state, as in the case of public schools,
or public parks, cf. Muir v. Louisville Park Theatrical Association,
347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112; Dawson v. Mayor and
City Council of Baltimore, 4 Cir., 220 F.2d 386, affirmed 350
U.S. 877, 76 S.Ct. 133, or municipal golf courses, cf. Rice
v. Arnold, 340 U.S. 848, 71 S.Ct. 77, 95 L.Ed. 621; Holmes v.
City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, on the plain theory
that if the state is going to provide such facilities at all,
it must provide them equally to the citizens, it does not follow
that it may not be permitted in public utilities holding nonexclusive
If that doctrine has any vitality, this is
such a case in which it has been applied fairly. According to
its teaching not absolute, but substantial equality is required.
Such equality is not a question of dogma, but one of fact. Under
the undisputed evidence adduced upon the hearing before us practices
under the laws here attacked have resulted in providing the
races not only substantially equal but in truth identical facilities.
In my opinion the holding of the Court in
Morgan v. Virginia, 328 U.S. 373, 66 S.Ct. 1050, 90 L.Ed. 1317,
that the attempt of a state to require the segregation of passengers
on interstate buses results in the imposition of an undue burden
on interstate commerce is wholly irrelevant to the issue before
us. And equally inapposite is reference to Henderson v. United
States, 339 U.S. 816, 70 S.Ct. 843, 844, 94 L.Ed. 1302 which
held that rules and practices of interstate railroad carriers
requiring the segregation of passengers in dining cars were
offensive to Section 3(1) of the Interstate Commerce Act making
it unlawful for a railroad in interstate commerce "to subject
any particular person, to any undue or unreasonable prejudice
or disadvantage in any respect whatsoever:
The supremacy of the federal government in
matters affecting interstate commerce is axiomatic. Cases involving
the exercise of its power in that realm shed no light on Fourteenth
Amendment problems. It does seem quite clear that by its terms
the Congress is given the power and duty to enforce the Fourteenth
Amendment by legislation. Thus the Congress would have the power,
thus derived, to proscribe segregation in intrastate transportation.
It is worthy of note that for sixty years it has not seen fit
to do so.
While any student of history knows that under
our system of government vindication of the constitutional rights
of the individual is not, and ought not to be, entrusted to
the Congress, its reticence to intrude upon the internal affairs
of the several states should caution us against doing so where
the path of duty is not plainly marked and when we must hold
a clear precedent of the Supreme Court outmoded.
Because I would dismiss the action on the
authority of Plessy v. Ferguson, I do not reach the procedural
questions discussed in the majority opinion. I respectfully
Source: Browder v. Gayle, 142 F. Supp. 707,