any capacity when they compel obedience to statutes and ordinances attacked as unconstitutional. Code Ala.1940, Tit. 48, §§ 801 (31a) to 301 (31c). 9. Declaratory Judgment 303 Where Act, which required segregation of white and colored races on motor buses of municipality, provided that such act would be administered and enforced by the Alabama Public Service Commission in manner that provisions of Alabama Motor Carrier Act of 1939 are administered and enforced, and president of Public Service Commission acted positively and affirmatively to that end, Commission did have jurisdiction over buses operated within City of Montgomery and members of Commission were properly joined as parties defendant in action to have Act declared unconstitutional. Code Ala.1940, Tit. 48, §§ 239, 301(2). 10. Constitutional Law 251 In the conduct of private businesses and private affairs, people themselves have liberty to select their own associates and persons with whom they will do business unimpaired by the Fourteenth Amendment to the Federal Constitution, and such liberty is guaranteed by due process clause of that amendment. U.S. C.A.Const. Amend. 14. 11. Constitutional Law 215 There is a constitutional difference between voluntary adherence to custom and perpetuation and enforcement of that custom by law. 12. Constitutional Law 212, 253 Provision of Fourteenth Amendment 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 equal protection of laws, does not interfere with police power of states so long as state laws operate alike upon all persons and property similarly situated. U.S.C.A. Const. Amend. 14. 13. Constitutional Law 215 The Fourteenth Amendment to the Constitution of the United States re Charles D. Langford, Fred D. Gray, Montgomery, Ala., and Robert L. Carter, New York City, for plaintiffs. Walter J. Knabe, Drayton N. Hamilton, and Herman H. Hamilton, Jr., Montgomery, Ala., for defendants Gayle, Sellers, Parks, and Ruppenthal. Robert Thrun, New York City, for defendants Blake, Cleere, and Montgomery City Lines. John Patterson, William N. McQueen, Gordon Madison, William F. Black, Montgomery, Ala., for defendants Owen, Hitchcock and Pool. Before RIVES, Circuit Judge, and LYNNE and JOHNSON, District Judges. RIVES, Circuit Judge. Statement of the Case The purpose of this action is to test the constitutionality of both the statutes 1. Title 48, § 301 (31a, b, c), Code of Alabama of 1940, as amended, which provide: or " 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 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 separate offense. "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 of the State of Alabama1 and the ordinances of the City of Montgomery 2 which require the segregation of the white and colored races on the motor buses of the Montgomery City Lines, Inc., passengers for hire in this state, whether intrastate or 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.)" 2. 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 a common carrier of passengers in said City and its police jurisdiction. The plaintiffs are four Negro citizens who bring this action for themselves and on behalf of all other Negroes similarly situated. 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 employee drivers. 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." employees in charge thereof to assign "Nothing in this section shall be con- Section 11 of Chapter 6, 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 police ju risdiction". 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. "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 vacant." 3. Rule 23(a), Fed. Rules Civ.Proc. 28 U.S. C.A. Federal Jurisdiction The complaint prays for the convening stitutional and in conflict with said Fedof a three-judge district court as pro- eral statutes. vided 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, and the rights and privileges secured to them by Title 42, United States Code, §§ 1981 and 1983.5 The complaint further prays that the defendants be both temporarily and permanently enjoined from enforcing the statutes and ordinances claimed to be uncon 4. 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." 5. " 1981. Equal rights under the law "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 of rights "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." under Title 28, United States Code, §§ [1] Federal jurisdiction is invoked 1331 and 1343(3), 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 phrase "equal protection of the laws” refers to City ordinances adopted under State authority as well as to State statutes. state," and because the constitutional 6. " 1331. Federal question; amount in controversy "The district courts shall have orig. inal 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 States." " 1343. Civil rights "The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: "(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." 7. Constitution of Alabama of 1901, § 89; Alabama Code of 1940, Title 37, § 455. 8. 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 State. [2-4] 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 gov 9. 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. 10. If, however, the proceedings were not such as to require the presence of three judges, the judgment would still be valid 142 F.Supp.-45% ernment, 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". Very clearly, the three judge district court has jurisdiction.10 Comity V. [5] The defendants, relying on Alabama Public Service Commission 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 ordi nances. 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,11 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, 687. II. Lane v. Wilson, 307 U.S. 268, 274, 50 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 S.Ct. 491. |