Bailey v. Patterson

Zysset patent 4. 2 of the mounted. Claim are on which the blades head any posi- part suit includes all of thereof knives remain The blades or Zysset not they do defined Claim 1 stopped and elements tion where again. patent operated as well as the limita- additional until the shaft is return & Mc- tions set forth in Claim 2. in Wilson The Callay or knives blades parallel each device are 5. Plaintiffs to re- are entitled any- wedging of that results covery attorneys’ oc- of costs and fees thing coming parallel sides between the casioned defendant’s motion. chopping shredding or rather than the Mitigation 6. Defendant’s Motion cut. to be in small size of material Damages Application McCallay device 5. &Wilson The De Minimis Non Lex should Rule Curat plates have no slots series of fixed be denied. op- plates blades but between which discharge portions of the erate to cut

plug spaces rise into the between clearing & plates. In the Wilson clearing McCallay plates are patent the position and moved

fixed in cannot be blades, rotated movement of wiper Zysset whereas in the invention cup turns and as the blade is rotatable cutting position another from one BAILEY, Joseph Samuel Broadwater and wiper cup. fact This rotates the Jacob, Burnett L. on behalf of them the trial. demonstrated at situated, similarly selves and others McCallay patent is & 6. Wilson Plaintiffs, pertinent herein issues no more 'the patents prior considered than other art PATTERSON, Attorney Joe T. General including trial, Suter the court at Mississippi, al., the State of et patent 2,- 155,720, patent Hanel Swiss Defendants. patent 2,623,563. 140,010, and Zeller' Civ. A. No. 3133. McCallay patent 7. The Wilson & United States District Court , 207,146 Office the .same Patent Mississippi S. D. classification, namely, Sub- Class Jackson Division. Zysset patent in suit class as the Nov. 1961. 1923. so classified since and has been expert witness testified Defendant’s anyone place in and interested the first investigating patent would in suit class and subclass search would investigation. patent under Law

Conclusions of McCallay patent & The Wilson

1. equivalent disclose not does Zysset patent in suit.

machine McCallay patent & Wilson 2. anticipate combination of does Zysset patent claimed

elements

suit. McCallay patent & Wilson scope 2 of limit the of Claim does Judge, Rivés, dissented. Circuit patent in suit. Zysset

herein on June defendants com- as shown the amended case City plaint Patterson, of are Joe T. Douglas Jackson, Thompson, L. Allen C. Luckey, Rayfield, Munic- W. D. Jackson ipal Airport Authority, Continental Grey- Lines, Inc., Southern Southern Railroad, Lines, hound Illinois Central Inc., City Lines, Inc., Jackson Cicero Carr. filed Each of the defendants has complaint, an answer ting set- amended are out their The issues defenses. clearly pleadings. The defined these complaint amended inwas substance original complaint. substitution of plaintiffs It is the contention of the Motley Derrick Baker and Constance 2351, 2351.5, 2351.7, Sections Brown, City, R. Jess Bell, York A. New 7785, 7786, 7786-01, of and 7787.5 Miss., plaintiffs. Vicksburg, for Mississippi of un- Code of 1942 are ^the ' Dugas Atty. Gen., Patterson, constitutional; Joe T. are the defendants Cates, Shands, seeking statutes; and Charles Edward L. and to enforce these Atty. Gen., Clark, and P. preliminary injunction Assts. that a should Gen., Atty. Jr., Stoekett, Sp. for enjoining M. Asst. issued each and the defendants Joe T. Patterson. of them and their from en- successors forcing any of other these statutes Jackson, Miss., Watkins, H. Thomas segregation requiring racial statutes City for of Jackson. main- commoncarriers in the facilities City Atty., Rob- Travis, Jr., Pros. J. A. tained Plaintiffs common carriers. Atty., Nichols, Jr., E. G. Asst. Pros. ert City further defendant contend that the Miss., City Jackson, Stennett, Atty., W. enforcing of its Jackson and officials are Jackson, Mayor, City Commis- for City an ordinance of Jackson Police. and Chief of sioners January adopted and contend O’Mara, and Junior C. Cannada Robert City uncon- ordinance this Greyhound Miss., Jackson, for Southern face, on its notwith- stitutional but that Continental. Lines and standing unconstitutionality, de- Miss., Sydney Smith, Jr., Jackson, for City officials, fendants, and its of Jackson R. Co. Cent. Illinois enforce ordi- have threatened to this Young Young, Jack- and James J. W. against plaintiffs and members nance Miss., son, Lines. for Jackson their Plaintiffs further contend class. Miss., Jackson, Stockdale, them, for Colin L. and each of the defendants acting Carr. under color of the laws of the Cicero Mississippi and under color State Jackson, Miss., Phillips, L. Rubel 2087.5, 2087.7 2089.5 of Sections Authority. Airport Jackson pursued Mississippi Code have Judge, RIVES, Circuit Before pursue policy will continue Judges. CLAYTON, District MIZE Negro custom persons on common carriers in white Judge. MIZE, District Mississippi restrained, unless State they case further contend plaintiffs Samuel and remedy speedy adequate Joseph Bailey, Burnett other Broadwater and no by injunction. Negro than Plaintiffs Jacob, adult law each whom L. organization of a three- pray and the the United States citizen required complaint judge Title Mississippi, their who filed plaintiffs to state for bunals pray the issuance C. § rights privileges injunction all of assert permanent preliminary and suit; and that none of claimed defendants enjoining each are of the that laws State of enforcing attempting to enforce or any complained complaint of in the amended or statutes aforementioned the of highest Mississippi presented been ever the of of the State statute any in- tribunal or of other court the State pray an segregation; requiring Mississippi adjudication. of torney At- City or enjoining Jackson junction of the Genera] any enforcing of further that contends any from of its officers against Attorney City effect this the Gen- suit Jackson of of the the ordinances capacity enjoin to; eral against his action the official an referred hereinabove which, Mississippi, the State of con- them from and each of defendants tinuing provisions any under the of the policy Eleventh or custom to enforce City Amendment to the Constitution could ordi- law or under color of State consent, Negro maintained its and segregating white without of and nances further, complaint that the in fa- the attacks passengers carriers or on common parts any of by enforcement laws car- criminal common maintained cilities Mississippi continuing any pol- of rier, of the State which have from to enforce sovereign passed segregating capacity icy in been of races or custom of the purpose protecting the State the of of Jackson the facilities and services the against persons op- all of Municipal Airport the its domestic restaurant state violence, prevent by Carr, and undertakes to and contin- the erated Cicero from uing City of arrest, enforcement the ordinances intimidate threaten prevent Jackson and of in connec- offi- arrest members of class Federally Mississippi enforcing of cials from tion with of their Sec- the exercise 2087.5,2087.7 right protected and 2089.5 Mis- to use and intra tions inter sissippi (These transportation Code of and services statutes without segregation I) Appendix are set out He contends or discrimination because of these race. that statutes and .their are constitutional being unconstitutionally are not enforced. The defendants and each of them in He further contends this action con- deny their answers enforc- attempt an stitutes to control law en- attempting any to enforce City Jackson, forcemet officials of the against plaintiffs ^statutes Mississippi well State of their class of their De- because race. discretionary pow- of their valid exercise type fendants contend that this is the authority. and ers action wherein the Federal Court should passing abstain from on these statutes defendants, City of Jackson and until the State courts have first had Thompson, Mayor, Allen the Commis- opportunity pass on its own laws Chief Police sioners contend that city ordinances. complaint primarily amended raises All primary defendants no in- contend that factual issues and that the issue against junction complaint should issue either of raised amended involves specifically, the defendants. More arrest the so-called Freedom Riders seq. defendant Joe T. Patterson contends that under Section 2087.5 et of the Code action; properly this is not the arrest of class and that Free- complaint legitimate amended factual and raises Riders was in accord dom legal controversy involving sections, unsettled and that these these sec- questions prop- unconstitutionally of state law which should were not en- tions erly Supreme They specifically decided first contend forced. Mississippi no effort to enforce in order to avoid un- Court there arrests, simply necessarily deciding to main- ques- laws prevent- order law tions, tain and that there is full ade- They peace. existing further con- quate procedure state tri- breaches sippi By pro- should be abstain exhausted. should this Court tend that constitutionality comity existing these cedure the between passing on the Supreme Federal Courts and passed the State Courts until Acts also, contend, would be Mississippi maintained without serious injury agency anyone. exception is an With the of Jackson therefore, and, Sections 2351 and Mississippi the sections the State complained Code subject to suit. constitutionality of which under defendants, Southern Continental passed up- attack herein have never been Lines, Greyhound Inc., Lines, Southern Supreme Mississippi. Court of Railroad, Inc., Jackson Central Illinois 2351, 2351.5,2351.7, 7784, These sections Municipal Air- Inc., Lines, Jackson 7785, 7786, 7786-01, 7787, and 7787.5 of Authority contend Carr and Cicero port Mississippi the of 1942 Code as amended arrest they caused the not that Appendix are set out in opinion. II to this seeking to are not anyone that pass Before upon this Court should the of the State laws the enforce this, constitutionality of these statutes in in- Mississippi, that no and contend of junction particular case, wherein it is shown against them, for issue should the parties contentions of the that there full, plaintiffs have a the reason the bewill factual issues as well as the con- remedy adequate at law complete and stitutionality statutes'involved, the redress, they may grievances have. should, courts of Mississippi State of the main contentions Briefly, these opportunity pass be afforded (cid:127) parties respective as reflected . them. pleadings this case. abstention, equitable principle This majority supported by has reached is well the Court the decisions of the Supreme issues as that under the Court States; the conclusion United as. by many pleadings in case is well as this raised the decisions of the- duty abstain from various Appeal court to Courts of this ahd District. issues, necessary Courts. It will retain the cause not be passing but to refer to all the decisions that have docket and remit adhered to- on its action doctrine, quotations but the from a. of Missis- plaintiffs to the State Courts leading few the adjudication cáses will prior of the is- sippi be decisive.. for a Probably meaning scope nearly the one poiiit of its most and of is. sues Harrison, Attorney defined. the case of as so This Court statutes own General of stay Virginia simply its hand until the ade- et al. v. National should Association for provided proper quate remedies Advancement of People al., Colored et 167, 1025, 360 79 1030, of the State of Missis- U.S. S.Ct. the statutes 3 L.Ed.. 1912, Supreme Mississippi Mississippi Supreme In Court Lou 1. The Court held, Ry. State, isville, Morris, in Alabama & & T. R. Co. v. 66 V. Co. N. O. v. 511, 11, 203, 132, 662, 103 Miss. So. 6 So. L.R.A. held Miss. Sections 1351, Mississippi 2, Mississippi 1888, 1906, 4059 and Act of March Code now 7784, 7784, applied 2351 and 2351 and Sections now Sections inter- applied Recompiled, solely 1942, state travelers was a reasonable ex- Code police power state, ercise of the state and affirmed within the commerce 1919, and, Mississippi Supreme violation of based conviction Act. affirming, Supreme 4059, Mississippi Court held that United Section States In 1906, Louisville, held, 7784, Mississippi. now Code Section N. O. & T. R. Court 1942, Recompiled, Mississippi, Code did v. U.S. violate Co. ei- of, ther the commerce clause 33 L.Ed. that a the Four- to, sepa may require provide teenth Amendment the federal railroads Consti- tution. mond, Illinois Central R. Co. accommodations white and Red- rate violating 119 Miss. 81 So. races without the com colored long clause of the Constitution merce so applies only as the statute to commerce within the state. 983]; the Su- S.Ct. [73 held Gov- it was '2d in which Employees Windsor, ernment & Civic preme the United States Court of adjudicate [77 S.Ct. 1 L.Ed.2d should the Federal Courts principle constitutionality not, course, This 894]. enactments does of state jurisdic- involve tion, fairly interpretation until the abdication of open federal postponement a reason- afforded ex- have been Courts ; policy comity ercise it serves pass in- opportunity them. able abstention; herent in the doctrine of said: (cid:127)Court spares and it the federal courts of un- “According every consideration necessary adjudication. n opinionof the majority below, arewe Chicago See Dairies, Inc., v. Fieldcrest District view that the nevertheless supra, pages [316 at U.S.] 172-173 [62 from decid- should have abstained page 988]. it, the issues tendered merits present case, “The Virginia view, in our a rea- courts is one so as to afford the application calls opportunity three to construe the sonable * * * n statutes principle, agree since we are question. unable to the terms of these three statutes procedure is now well-established “This leave no reasonable room for a construc- unnecessary at the avoidance aimed by Virginia tion the might courts which by courts with the federal interference part avoid in whole necessity or in the validly con- proper and administered state for federal adjudication, constitutional cerns, the bal- a course so essential materially change at least nature the working system. federal To of our anced problem.” possibility of inter- the such minimize said, regard Court ‘scrupulous further: for the “We do not ference slightest intimate govern- the rightful independence view as to what state * * * any might effect such actu- determinations should at all times ments upon validity have the courts,’ of these statutes. federal Matthews v. ate the Rodgers, All we hold is 217, that 521, these enactments 284 U.S. 525 S.Ct. [52 exposed should be 447], to state ‘contribution construction L.Ed. 76 as * * * limiting interpretation furthering harmonious the before the federal upon au- courts asked to between federal relation state decide their con- * * thority *.’ Railroad Comm. v. stitutionality, judgment so that federal Co., 496, 501 Pullman 312 U.S. S.Ct. [61 something be based will on that is a com- 643, In 85 L.Ed. the service of this 971]. product State, plete the enactment doctrine, applied which this Court has legislature phrased as as con- contexts, many principle different no highest by its court.” strued expression more consistent or clear found Supreme was said Just the Court the federal that courts should not than States, supra, United we do not in constitutionality adjudicate the of state pass undertake to this case fairly open interpretation enactments raised, have that been nor do issues state courts have been afforded until whether the statutes are con- we intimate opportunity pass upon a reasonable unconstitutional, for stitutional g., Railroad e. Comm. Pull- See v. them. courts of the State of Mis- reason that sissippi Chicago supra; Co., v. Fieldcrest man permitted pass upon should Dairies, Inc., 168 316 U.S. [62 S.Ct. by any questions, uninfluenced ad- these 1355]; Spector Service, Motor L.Ed. 86 intimation of ours judication as to McLaughlin, 323 U.S. Inc., S. [65 v. given have careful We con- statutes. 101]; L.Ed. American Fed- opinion to the Ct. sideration Watson, Labor v. 327 U.S. in that case and majority the Court eration by it, 873]; Shipman announced governing rule we 90 L.Ed. S.Ct. [66 thinking of Mr. considered DuPre, L. U.S. 321 S.Ct. also [70 dissented, Douglas, in who 877]; Millard, Albertson Justice U.S. Ed. ought sponte sua to have and trial court Justice joined the Chief he was parties opinion re- Brennan, withheld action ‘while the set Justice whose Mr. considering paired) an au- doctrine, a state tribunal for history and out the dissenting applicable declaration of thoritative cited in the decisions also ” then, very rule, general law.’ The Court opinion, in a able However, opinion. as a many exhaustive, cited the every must be determined lawsuit authorities, quoting par from a pleadings in number raised in issues them to the courts effect the trial case, it is our view ticular should case, particular constitu have abstained. We shall not where length quote opinion more tionality is of the statutes of say adopt passed up than to announc- we questioned and has never been controlling State, principles highest of the law governing us requires fed in abstention in this case. discretion sound Comm, Spec In the earlier case of Railroad In the case courts abstain. eral McLaughlin, 323 Company al., Motor Co. v. Texas et al. v. Pullman tor et 152, 154, 89 L.Ed. 643, 645, 312 U.S. language: Supreme used this Court Supreme the United deeply more there one doctrine “If said: States process than other in rooted public higher “Few interests have a adjudication, it is that we claim the discretion of a federal ought pass questions of consti- not to chancellor than the avoidance of needless tutionality the distribution —here policies, friction with state whether the taxing power the State and as between policy relates enforcement adjudication Nation—unless law, Boykin, criminal Fenner v. 271 U.S. so, questions of fed- And unavoidable. 492, Spiel 927]; 240 S.Ct. 70 [46 L.Ed. power have constitutional become eral Dodge, man Motor Co.v. 295 89 U.S. [55 prelimi- intertwined with more more 678, 1322]; S.Ct. 79 L.Ed. or the admin law, nary we in- local doubts about specialized of a istration liq scheme for not decide that federal courts do sisted uidating embarrassed business enter constitutionality questions of on the basis Pennsylvania prises, Williams, v. 294 U. guesses regarding preliminary local of 380, 841]; S. 176 S.Ct. 79 [55 L.Ed. authorities.) (Citing law.” authority the final terpret aof state court to in connection with Harrison v. N. In A. regulatory doubtful of laws the many P., supra, see the authorities A. C. state, Interborough Co., Gilchrist v. 279 dissenting opinion Judge of cited the 282, ; U.S. 159 [49 S.Ct. 73 L.Ed. 652] Sterling Hutcheson, A. N. A. C. P. v. Hamill, cf. 52, Hawks v. 288 61 [53 Patty, Fed.Supp. 535, 503, 159 with ref- S.Ct. 77 L.Ed. 610]. These re cases to abstention. In that erence exhaustive appropriate flect a doctrine of abstention page 540, seq., he reviews at et dissent system whereby to our federal the federal many upholding authorities the doc- ‘exercising courts, discretion,’ a wise re of abstention. trine authority strain their ‘scrupu of because thorough regard rightful independence are in accord with the lous the We governments’ opinion of of the Fifth Court Circuit state the and for the working Empire case of Pictures smooth judiciary. the Distrib- of the federal City Cavanaugh uting Company, Looney, of Inc. et al. v. Fort See 248 U.S. 529, 531, al., 354]; F.2d et Worth L.Ed. [39 Di upheld doctrine of Ass’n, Court the absten- v. Camden the Ins. Giovanni 64, 296 U.S. length many quotes 47], at S.Ct. 80 L.Ed. [36 tion use This applicable powers equitable authorities to that doc- is a the trine, contribution furthering particularly applicable the courts the the harmonious In raised in the case here. relation between state and issues that federal author rigorous ity congres the “At the without the need said: threshold of ease Court question powers.” case whether sional restriction of the lies the the those heard before The matter was that court. authorities above the We think District along the Court of the men Southern those below those cited Mississippi She denied. opinions in eases the writ the various tioned Ap- immediately petitioned require fed Court ample that supra are appeal peals for Fifth Circuit for court abstain. eral petition pauperis, in forma granted that the Moreover, abstention doctrine of advanced. case because peculiarly applicable case in this Appeals petition Court of denied the 2087.5, upon Sections attack made published, opinion since not been Mississippi Code 2087.7 and 2089.5of copy opinion rendered generally known as the Appendix III. Court is attached hereto in hereinbe- authorities All statutes. statutes, In the court it trial before the lower applicable to these are fore cited by petitioner she had we was contended authorities are other "but there remedy adequate law, no which conten- applicable just and for at are think separately. upheld, that par- treating tion was it shown as was these reason we are plaintiffs under the statutes of pleadings, the As shown ticularly full, adequate contending are she did have a defendants are segrega- remedy speedy using statutes at law and these statutes enforce these contending opinion of District are out in the are set tion and the defendants Wyckoff, Application 196 F. and Court. statutes are that these segregation, Supp. being Court 517. In that case the are not used to enforce pro- jurisdiction, peti- being purpose did since the retain used but are remedy law, against tecting adequate public and tioner did have violence Court, opinion peace. in the writ This was denied. In disturbance stated, Wykcoff, occasion to Court said: “As heretofore had an the case very petition corpus pass upon for habeas Federal Courts reluctant indeed growing orderly process one out of the arrest of interfere with the n “FreedomRiders” involving Jack- a State matters.” Burke, son, peti- contended And cited cases Davis wherein was 249; Ex U.S. parte Hawk, tioner in that case this statute was 448, 114, 321 64 88 U.S. S.Ct. being segregation. Her used enforce 1, 572; Boyle, 342 72 L.Ed. Stack v. U.S. corpus petition for of habeas the writ Allen, 1, 3; 344 L.Ed. Brown v. S.Ct. 96 alleged of viola- was convicted she 443, 397, 469. 97 L.Ed. U.S. 73 S.Ct. tion of Section 2087.5 of the any rem- did not have Code and she application for It is true that an edy of habeas at law other than the writ corpus a federal a writ habeas there is corpus release, her and that her to secure prohibits statute which the federal courts imprisonment of her due denial interfering courts, from with the state process law the Fifth and Four- under except in specifically those cases author- Amendments to the Constitution teenth by Congress. However, ized principle respondent, the the United States. The same, gen- involved since it is the answering County, in Sheriff of Hinds eral doctrine that the federal courts petition writ, averred that equitable powers lend should having ju- in a injunctive she was convicted powers until the state holding passed pe- he risdiction and that was courts first the consti- by tutionality titioner virtue of commitment from of its own 2283, acts. Section Creasy, 219, 553; Employees v. 360 79 Martin U.S. S.Ct. Government and Civic 1186; County 1034, Organization Windsor, 3 L.Ed.2d of Al v. C. I. O. 353 al., 838, legheny 664, 894; v. Frank Mashuda Co. et 77 S.Ct. 1 360 U.S. L.Ed.2d 1060, Guys 185, 1163; from 79 S.Ct. 3 L.Ed.2d Two Harrison —Allentown U.S. v. Buck, 387, McGinley, 582, 589, 61 366 v. 313 U.S. S.Ct. U.S. 81 Watson S.Ct. 962, 1416; Callaway Benton, 1135, L.Ed. v. 6 L.Ed.2d 551. 132, 142, 435, 93 60 S.Ct. L.Ed. by prohibits a court of the Hence the arrest the federal Title U.S.C.A. granting injunc- processes courts of from of the crimi- United States stay nal proceedings states, a state court law tion to except within and the expressly questions Act authorized determination of of crimi- necessary liability Congress, aid nal or when under state a fed- law jurisdiction, protect equity, eral sup- and ef- court of of its or to ported only showing danger judgments. In view of fectuate its on a irreparable great corpus injury was de- statute the writ of habeas ‘both * * * citing Wyckoff case, -in nied in immediate.’ “ * * * thereof; Empire support Dis- Pictures from, appear It does not tributing City Worth, 5 of Fort Co. v. petitioners the record that have been Douglas City Cir., 529; 273 F.2d any injury threatened with Jeannette, 157, 877, 87 319 U.S. 63 S.Ct. every than that incidental to crimi- L.Ed. 1324. proceeding brought lawfully nal good faith, or that a federal court pages At 163-164 of the of Jean- equity by withdrawing the deter- U.S., page case in 319 880 of nette guilt mination of from S.Ct., supra, Supreme Court of the rightly petition- courts could afford United States said: any protection ers could power “The reserved to the states by prompt ap- secure trial and provide under the Constitution to peal pursued to this Court.” for the controver- determination of principles announced in Jean sies their courts restricted nette ease have been reaffirmed on the- federal district courts basis of case, that case and the Stefanelli Congressional legisla- obedience to Minard, Stefanelli v. 342 U.S. 123- conformity Judiciary tion in S.Ct. in two- Article of Con- the Constitution. Supreme year: Court eases decided this gress, legislation, adopted Wilson al., 381,. v. Schnettler et 365 U.S. policy, the statutory defined certain well Pugach 5 L.Ed.2d leaving gen- exceptions, of Dollinger, 365 U.S. erally to the state courts the trial of 5 L.Ed.2d 678. These are discussed cases arising cases criminal under state length Wyckoff more at case, 196 F. subject laws to review this Court Supp. 522-523. questions federal involved. *3fr -Jfr # question The whole of State-Federal' “ * * * relationships history and their is dis- person is No immune in a cussed recent decision of the Court of prosecution good faith for Appeals for the Fifth Circuit in Smith. alleged his nence, criminal acts. Its immi- Son, Williams, Inc. v. 275 F.2d 396. though alleged even to be in Beginning page 402 will be found a. guaran- violation of constitutional large applicable ties, ground number of cases equity to the- not a relief questions since before us. lawfulness or constitu- tionality of the statute or ordinance generally known Statutes stat- prosecution on which the based in utes exist most of the States of the may readily determined be applied have been Union under a. injunc- criminal case as in a suit for variety of circumstances in recent times. * * * tion. Where the threatened They by have been used the officers of prosecution is state officers for subdivisions States thereof to- alleged law, violations of a state prevent violence and more of- serious state courts are the final people arbiters of gathered, where fenses or meaning application, subject threatening gather its only to in are númbers un- to review pressure this Court on fed- of emotional der stress. The grounds appropriately eral press public recently asserted. carried an account large circumstances that a breach number of such congregation aof a -of peace may thereby: sought Negroes to be occasioned people when white ' near bathing at or beaches make use “(1) congregates with oth- crowds or (cid:127)Chicago. state stated It was protecting in ers or structure shore (cid:127) speakers to or- loud use of officers made structures, public public or or or a street or be scene leave the (cid:127)der crowd to sidewalk, highway, public or or a laws. subject under state imprisonment . to any any hotel, public place, other inor col-, who had those It hinted that was not motel, store, counter, restaurant, lunch right be full to Elected did not have cafeteria, shop, picture sandwich motion Acting state under 'where were. theatre, beauty parlor, drive-in, swim- simply re- statutes, .peace the officers ming pool area, any sports recrea- or or on, in their quired because to move them any place place, tional area or or other likely judgment presence their serving engaged selling of business or scope peace. lead a breach public, members of the or in or around from varies -and statutes reach of such any any place free entrance to such application state, to a state and their any public building, or business building or given peculiar a call situation makes individual, owned another or judgment of tribunals before :the corporation, partnership or or an as- application in a be tested should sociation, and who fails or refuses to dis- court of States. the United perse on, disperse and move or or move any on, when do facts ordered so to law disclosed situation directly any municipality, opinion, enforcement fall, in our officer this record county, or scope which such act acts within the decisions of or are committed, by any Supreme requiring or un- law abstention enforcement Court Mississippi, any officer of the decided full State of or til the courts have meaning person, respective and other authorized or their statutes application to the situations which “(2) insults makes or or obscene rude presented to us. gestures, profane remarks or or uses lan- guage, physical pro- pend- acts, or indecent The record before us or shows the posals ency others, proceedings to or toward another or a number of before or or disturbs obstructs or interferes with State Courts of under the others, peace statutes, or another or and the class plaintiffs purport here al- act is (cid:127) “(3) any public bus, while in or on ready participating pro- in state court taxicab, engaged or vehicle in trans- other ceedings questions where all of the raised porting public for a members of the fare fully presented before us with the charge; causes a disturbance or or does right Supreme appeal says, any respectively, matters the United States. things (2) mentioned in subsection su- or pra, entered, therefore, any to, toward, presence An will order or in (cid:127) abstaining vehicle, passenger from further action in this on said give cause person State Courts of Missis- outside of said vehicle or boarding sippi opportunity departing process reasonable ei- act engaged vehicle, already employee pending cases ther or in said operation vehicle, about the of such any any parties new- case which of the or may elect to commence. refusing premises “(4) to leave the of I by APPENDIX requested any to do when so another any employee lessee, thereof, owner, or Involved Statutes disorderly guilty conduct, be of “shall Code misdemeanor, and, upon is made a which punished thereof, by shall be Whoever intent conviction 2087.5—“1. § hundred peace, of not more than two dol- fine or under a

provoke a breach “(2) prevent prevent, in- imprisonment or seek or ($200.00), or lars with, (4) with, county or seek to interfere jail four terfere not more than impris- persons, expressly impliedly by in- months, other or fine and or such both guilty upon prospective premises, ; any vited said or person shall be onment and if coming customers, frequenting disorderly into or herein as defined conduct premises such in the normal course lead to a breach and such conduct shall operation any of the business conducted peace incite a riot in or upon premises, carried on named, said places result of herein and as a peace riot another said breach of or guilty disorderly conduct, “shall be persons maimed, person killed or shall be misdemeanor, upon conviction there- guilty injured, person such or then of, punished by shall be a fine of not more disorderly shall conduct as defined herein ($500.00), than five hundred dollars or guilty felony, of a conviction be imprisonment county jail for not person imprisoned such shall (6) months, more than six or both longer Penitentiary (10) than ten imprisonment. such fine years. provisions “2. of this act are provisions “2. of this act any supplementary provisions any supplementary provisions to the other statute of this state. other statute of this state. any sentence, paragraph, If “3. or any paragraph, sentence, If or “3. clause of this act shall un- be held of this act un- clause shall be held to be constitutional, invalid, or same shall invalid, or constitutional shall same any portion part, pro- not affect or other any part, portion pro- not affect other or thereof, part vision but shall such other act, part vision other such remain in force and full effect.” Source: shall in full force and effect.” remain Laws of c. 260. Laws of Source: c. Any person 2089.5—“1. dis- who § 2087.7—“1. It shall be unlawful public peace, turbs the or the any person persons, or while in or on the by violent, insulting, others, loud, or or premises another, an whether that of profane, offensive, indecent, or or or or corporation, person, or or a individual language, boisterous conduct or in- or association, and on partnership, or seeking any timidation, or intimidate restaurant, any store, property which person persons, other or conduct or shop, hotel, motel, lunch coun- sandwich provoke either calculated to breach moving bowling picture alley, theatre ter, peace, or conduct lead beauty theatre, shop barber or drive-in or peace, by any to a breach of or other any shop, other lawful business or act, guilty misdemeanor, shall be aof selling engaged articles operated thereof, conviction shall be or accommoda- or services of merchandise punished by a of not more than five fine engages public, or to members of the tion by impris- ($500.00), dollars or hundred generally in business transactions with county jail not more than onment public, to: members months, (6) or both. six “(1) prevent, prevent or or seek provisions sup- with, operator “2. The this act are the owner or interfere provisions plementary agents business, other place of or or his serving selling statute this state. employees, or food and rendering either, drink, or service any paragraph, If “3. sentence or selling showing accommodation, or to or this act shall clause of be held un- to be to, pursuing or otherwise merchandise his invalid, the same shall occupation with, or business lawful cus- part, portion pro- not affect prospective customers, thereof, part or or tomers oth- vision such other shall public may who full members in force er then remain and effect.” Source: building, or in such c. be Laws larly employed persons II of the owner or APPENDIX operator passenger depots, sta- bus Involved Statutes may closets tions or enter such terminals discharge or rest in rooms Code of assigned duties. corporation any person or 2351—“If § “Any violating provisions person provide operating fail a railroad shall guilty a this act shall be of misdemeanor pas- passenger cars for each two or more and thereof fined conviction be shall senger passenger train, or to divide ($1,- dollars more than one thousand separate partition, ac- a to secure cars jail 000.00) not more or confined in for colored- white and commodations for the year, than one or Source: Laws both.” any by law, races, provided rail- or if c. 259. passenger fail to as- shall road conductor sign passenger or com- to the car traveling each Any person 2351.7—“1. § race partment used for the of the car by rail, bus, travel airline intrastate or belongs, passenger or it shall he other common carrier for hire who know- misdemeanor, and, guilty on con- of a be ingly wilfully attempts or or enters twenty less viction be fined not than shall waiting enter the room not marked and five dollars nor more than hundred dol- provided persons other or her for than his 1892, 1276. lars.” Code of Source: required by law, guilty race as shall be aof and misdemeanor conviction company, “Every railroad § 2351.5— thereof shall be fined not than one more company or common carrier bus impris- ($1,000.00) thousand dollars and maintaining owning, operat- for hire or jail sixty (60) oned in not more than ing passenger depot, or ter- bus station days, imprisonment. or such fine and both waiting passen- room for minal where gers operated person enter, “2. is maintained shall No white shall fre- quent, waiting occupy cause to constructed and maintained in or be use the colored reception any connection with or wait- depot, such room of bus or termi- station retiring waiting nal when closets or such room marked in room two or rest exclusively by law; required bold letters as rooms to be used white no passengers enter, frequent, in intrastate oc- person commerce ar- shall colored cupy riving waiting departing depot, such the white room of use or following bus or any station terminal or terminal when depot, bus station painted required in bold letters notice shall be or marked shown bold same however, regularly room, except, em- by law, letters door of one: ‘Rest only operator travel,’ or persons white female of the owner ployed in intrastate may room, depots, or terminals white male bus stations ‘Rest the other: discharge travel;’ of their as- and likewise in intrastate enter same signed retiring required duties. rooms shall or or rest two closets colored and maintained for constructed be violating provisions “Any person like passengers in intrastate travel with guilty shall be of mis- of this section signs painted or letters on shown bold upon conviction thereof demeanor substituting thereof, word the doors than not more one thousand fined be shall ‘white,’ and such owner or ‘colored’ for imprisoned jail ($1,000.00) and dollars operator or shall see that the closets rest year, one than or both. more for not equally equally clean and in rooms suit in law or No action “3. good sanitary condition. brought any equity against any law person enter, frequent, enforcement “No white shall this damages occupy false arrest of or use colored closets rest officer act, of a violation of required passenger because this rooms no colored pas- enter, occupy act, carrier person frequent, common nor shall shall subject employees sengers, closets or rooms use the white quired rest re- damages regu- com- act, except, however, on account suit extending top partition passengers movable or its em- from the xnon carrier of ployees complying vehicle, ceiling provisions of of the seat to the of the partition said of not to this act. obstruct the view of such the driver separate the vehicle to secure any part parts “4. or In the event accommodations; provided, unconstitutional, this act shall held be however, apply to this act shall not remaining portion act shall this operated carry- exclusively buses for the remain in full and effect.” Source: force ing military personnel; oper- and the Laws of c. 260. passenger ators of have such buses shall “Every carrying pas- § railroad 7784— power, assign required, each to sengers provide equal in state shall passenger compartment to the of the bus separate but for accommodations passenger used to race which such by providing white and colored races two belongs; any pas- and in no case shall passenger passen- or more ger cars for each senger permitted in aisle to stand dividing train, by passenger or compartment in which he does by partition separate cars to secure ac- belong assigned; and is not so and should ; commodations and the conductor of such any passenger occupy refuse to com- passenger power, train shall have and is partment belongs to which he or she assign required, passenger to each assigned, operator power shall have car, compartment car, or of a used for carry passenger to refuse to such on the passenger belongs; the race to which such bus; compartment or should either be- any passenger and should refuse oc- permit comeso loaded transit as cupy the ear to which he or she is as- taking any passengers further signed by conductor, the conductor compartment, oper- for that then the bus power carry have shall such refuse required ator shall not be and shall refuse passenger train, on the and for such re- any passengers to take on further in vio- company the railroad neither he nor fusal though lation of this act. Even ad- damages court.” be liable for shall passengers may purchased ditional have 3562. § Code Source: transportation hold tickets bus, only remedy on the said said persons corporations or 7785—‘‘All § passengers shall have for failure or re- railways operating and passengers street street or carry fusal to them under such circum- carrying buses, municipal right stances is the to a refund state, every by common carrier ticket, cost of his and for said refusal passengers vehicle of motor this state operator either case neither the nor the 3(e) by chapter defined section as common carrier shall be liable for dam- (§ 7634, laws of 1938 Code ages partition may court. Such provide equal, 1942), separate, shall adjustment made as movable to allow so for the white and accommodations colored space require- in the bus suit the races. ments of traffic.” Source: Code of “Every common carrier motor vehi- § passengers state, in this cle of defined operators 7786—“The such street 3(e) chapter section of the laws vehicles, cars street buses and motor (§ 1942), Code buses by chapter defined laws entirely operated street cars within 7632-7687, (§§ 1942) shall Code corporate municipality, of a limits power assign required and are thereof, of miles radius shall within passenger space compart- each passengers divide of an use pas- used for the race to ment which such sign appropriate inches, pur- 4x9 for senger belongs. of, pose and in a manner that will ‘suit- ably provide for, separation “Any passenger undertaking of or at- races, go space and all other tempting compart- buses motor vehi- into the carrying passengers cles hire in the ment to which race he or she does not belong guilty misdemeanor, shall use a shall be of a latticed nothing every offense; provided, conviction, liable a to shall be ($25.00), or, in herein twenty-five contained shall be construed dollars of fine attending applying of peri- by a children thereof, imprisonment for nurses lieu days thirty (30) in of the other race.” Source: Code od not more than of any any operator 4062. county jail; § motor vehicle or street car or street bus depots, passenger In all 7787.5—“1. § assigning placing defined, a or as herein oper- owned, bus stations or terminals compartment passenger space or ated or leased in the State of the race for than the one aside other set company company, or a railroad bus belongs passenger shall be said any passengers, other common carrier guilty and, con- misdemeanor of a operator the owner cause or thereof shall twenty- viction, to a fine shall be liable waiting to be constructed and maintained thereof, ($25.00), or, lieu in five dollars reception or rooms as will secure imprisonment period not more for a passengers. comfort of the county jail.” thirty (30) days in than depots, termi- “In bus stations or such Code of 4061. Source: § constructed, provided there nals shall be “Every corpora- person or § 7786.01— intrastate and maintained for the white railways operating and street tion street waiting recep- separate passengers or carrying passengers municipal buses, or room, shall tion on each entrance to which every state, and carrier in this common painted in be or shown bold letters passengers in motor vehi- this state following: room, waiting intra- —‘White 3(e) chapter cle, defined section passengers’; depot, bus and in such (§ 142 of the laws Code of con- or there shall be station terminal guilty 1942), of wilful and fail- continued sepa- structed, provided maintained comply provi- or with ure to observe waiting reception for the rate room or act shall liable a fine sions of this be passengers, each en- color intrastate twenty-five ($25.00) for each dollars painted trance which shall be or shown day’s offense, and each violation of the following: in bold letters the —‘Colored provision sepa- hereof shall constitute waiting room, passengers.’ intrastate act; provided, rate violation ever, how- Any persons passen- or “2. common the case of cor- carrier railways gers porations operating for street hire or railroad or bus com- pany, corpora- whether an municipal individual or buses, the fine shall street or tion, comply which fails or refuses ($10.00) twenty- dollars instead of ten be provisions act ($25.00). shall be liable Source: Laws of c. five penal sum of one thousand dollars day ($1,000.00) per day each of such 7787—“All officers and directors of n failureor refusal, to be recovered suit railway companies who shall street refuse county depot, filed in which such neglect comply provisions or with the situated, station or terminal is bus ei- preceding requirements of the two attorney general, ther the district guilty shall be deemed of a mis- sections attorney district, county or the at- demeanor, on conviction shall be fined not torney county passen- in which said than one hundred dollars or im- less be ger depot, bus station or terminal is sit- county jail prisoned in not less than uated, brought shall suit be sixty days, months, and not more than six county circuit court of the employee conductor passenger depot, bus said station or ter- having charge company car such street minal is situated. neglect same, who refuse or shall provisions carry chapter penalty provided of this out “In addition to Attorney herein, shall, conviction, fined not General of the less than attorney twenty-five imprisoned Mississippi or the district dollars county attorney district, county jail days less than ten county depot, thirty days for each in which said bus station than nor more ty jail, suspended, suit in the and a fine of file $200 situated terminal is violating county 2087.5, Mississippi chancery a man- for Section Code of such court compliance datory compel As injunction amended.” to act, and the provisions of this with the Petitioner asserts that because of the any county chancery wherein detention, term of her and “the short complied provisions this act are by respondent clear violation of the con- an jurisdiction issue to shall have with States, stitution and laws of the United injunction compliance this require to requirements first ex- that she must contempt act, of court in and to hold effect, would, haust her state in remedies company company, bus railroad right deny corpus, her of habeas fail- passengers carrier of other common ing a situation where it was the sole effective remedy decrees comply with the orders to safeguard stat- with which to her directing compliance with of the court rights utory and and lib- this act. erties.” requirements act shall The “3. appears petition It no where in the any person, firm or applicable to not be corporation operating petitioner attempted to exhaust has place business to in the courts remedies available her corporation person, firm or said wherein Mississippi, there is the state of or that agent com- for a bus as ticket acts pany either an absence state reme- of available in addi- other common carrier exist dies or that circumstances regular and wherein tion to his business ineffec- which render such remedies reception waiting passenger room no rights protect prisoner. to tive Laws room is maintained.” Source: jurisdiction of a federal court is 1956, c. 258. Congress. 28 fixed the Acts of 2254, provides C.A. as follows: III

APPENDIX custody; remedies State “§ Appeals In United States Court application courts. An for State Fifth for the Circuit corpus a writ of habeas in behalf Matter of: In the custody person pursuant a judgment court shall not of State ELIZABETH PORTER WYCKOFF granted appears that the unless it For a Writ of Habeas Corpus_ applicant has exhausted the remedies TUTTLE, Judge, Chief Before State, available in courts Judges. WISDOM, Circuit JONES or that there is either an absence process or available State corrective BY THE COURT. ren- existence circumstances petitioner an order herein seeks dering process to such ineffective authorizing appeal from an order her rights prisoner. protect the July entered entered applicant District Court for the deemed States “An shall not be United Mississippi, District of exhausted remedies avail- to have Southern permission proceed State, her for with- moves appeal able in courts original meaning section, papers filed in if he of this right further law the Court. Petitioner has the under the District said hearing by any raise, pro- said available for an moves immediate cedure, question presented.” appeal. anything appearing from assert- that she was arrested It not asserts Petitioner waiting entering petition peti- room at ed in this case that white “for sought Jackson, appeal conviction, Terminal, her tioner Bus Continental alleges company void and Mississippi, in- have been of other which she financially Negro race, unconstitutional, passengers she is terstate pending appeal, make bond to two unable to was sentenced June petitioner appearing that imprisonment it not Hinds Coun- and months hearing plaintiffs’ right habeas 1961. A on the mo- her detention to test no Mississippi, injunction preliminary corpus courts of tion for was set in the state hearing July 10, appears reason for con- no sound 1961. That to be there grant petitioner’s motion tinued an because of the illness of As- hearing Attorney Mississippi. expediting in this Court. sistant General of hearing August appears 7,1961. rea- be no sound There thus was reset for granting petitioner’s motion for son Meanwhile, Complaint Amended original permission appeal hearing July 17, was filed 1961. The allegations papers, contained are no since August 7,1961 set for confinedto the was asserting petitioner’s fi- petition argument dismiss, motions of motions to inability record to cause the nancial court, three-judge motions dissolve the rules prepared in accordance with abstain, for more definite motions of this Court. plain- statements, require the motions to therefore, are, denied. The motions security costs, tiffs to for and to furnish hearing plaintiffs’ insistence injunc- preliminary Judge (dissenting). their for RIVES, motion Circuit By date, Au- tion. order entered on that enjoin complaint state-im- seeks to gust 7, 1961, allowed the court segregation public posed travel in racial Complaint had filed Amended been Mississippi and facilities the State 1961; July plaintiffs allowed the City Jackson, Mississippi. It seeks join party as an additional defendant against types and of statutes relief two Authority; Airport Municipal Jackson provided (1) face laws which on ordinances: require party and for service races, and filing answers and for the motions (2) purport with to deal laws behalf; dis- motions to on its denied the which, law and order but maintenance parties; indispensable for lack miss according complaint, used are to the immediately met, denied, on conditions segregation. maintain statements for definite the motions more Negro plaintiffs three adult are require plaintiffs and the motions to residing Mississippi, Jackson, citizens security costs; to furnish for and car- who sue on of themselves and behalf disposition ried with the for case later Negroes similarly and af- situated dismiss, the other motions to the motions fected and ordinances the statutes three-judge court, and the dissolve complained are the of.1 The defendants motions to abstain. Attorney Mississippi; General of City Jackson, Mayor, its Commission- objection, plaintiffs’ their re- Over the Police; and Munici- ers Chief of Jackson pre- quest motion for to be heard on their pal Airport Authority; Continental liminary injunction denied “in view was Grey- Lines, Inc.; Southern Southern broadening of the issues Lines; Railroad, hound Illinois Central Complaint July 17,1961, Amended filed on Inc.; City Inc.; Lines, Jackson bringing and of the in on this date of a Airport Cicero Carr Cicero’s Res- d/b/a party defendant,” hearing new and the taurant. preliminary injunction the motion for passed original September complaint until was motion for 1961. It injunction preliminary further ordered were filed on that on that date June was According complaint, Paragraph complaint 1. 15 of “the class specific Negro composed so as to citizens and residents amended make refer- disorderly Mississippi conduct and and other ence to the breach 2087.5, statutes, who Secs. states utilize the facilities and serv 2087.7 Mississippi 2089.5 of the Code An- ices of the defendant carriers located in among Jackson, (1942), as those under and located in other notated pursued Mississippi, which the defendants cities of the State of color of who usage practice, seg- policy, custom and travel both intrastate interstate Negro passengers. regating and white commerce.” Legislature.” case, The bus com- on said both court would hear panies prayer permanent further admitted that similar

motion and on signs appear on or the doors on wait- intention over court stated relief. The finally following depots in rooms all terminals or dispose of the case Mississippi. 25,1961. hearing September the State of set Illinois in its Central admitted that certain September over On depot railroad terminal Jackson transcript objections of testi- noted waiting rooms, separate maintains two proceed mony, did are the sidewalk outside of of which hearing one motion on the case both “Waiting signs reading respectively: injunction preliminary and on the for prayer Only, Police taking Room for Order Colored permanent relief. The “Waiting Dept.” for White days Room testimony three consumed —Mon- Only, Dept.,” Police September Order Tuesday Wednesday, day, signs railroad similar located in the September Thursday, 25, 26 and 27. On lead- heard, terminal at of the stairs the bottom arguments of counsel were oral ing from the trains. plaintiffs the and a further exhibit of (No. 36) defendant was The received. in his The Chief of Police of Jackson Greyhound permitted Corporation was testimony signs the on that the admitted Wilson, deposition take of A. W. the placed De- Police sidewalk were the 10, 1961. The segrega- which was filed on October testimony City partment pursuant to the and now been transcribed tion ordinance. 20, 1961, and addi- October was filed on Companies and the Both the Bus two parties the tional briefs been filed enforcing segregation on Railroad denied curiae, the United and amicus the busses cars. America. States of City admitted The Jackson Lines very evidentiary disputes are not The that, pursuant law, maintains to State it allegations formal of the The material. Negroes signs directing on its busses that identity complaint, of the and residence that, separate parts, and and whites sit transporta- plaintiffs, their use of the the are not observed when those directions question, identifica- tion facilities the imminent,” peace and a “breach of the is defendants, their of carrier use tion the policy stopping it has of the bus and busses, cars, terminals, depots, rest of proceeding no further. drinking etc., rooms, fountains, were all Municipal Airport The Jackson Au- undis- either admitted established segregation thority admitted of the rest puted Continental Southern evidence. drinking and rooms fountains in its wait- Greyhound in their and admitted Carr, rooms. of Cicero the lessee depots terminals or there are Jackson Airport, at the restaurant admitted waiting signs on the outside doors of one Negroes he not would serve in the Waiting read: room which “Colored dining room, would main serve them signs Passengers,” and Room—Intrastate partially a back counter in a room on used waiting doors of another on outside storage. Waiting read: Room room which “White Passengers,” Mayor City —Intrastate and on the Jackson, of The waiting respective outside City, sidewalks law enforcement officialof chief signs “Waiting Attorney rooms are read: the State General were and Only by Room for Colored Order Police policy questioned on their racial with re- — “Waiting Dept.” public Room White transportation spect to facilities. Only by Dept.” Police Each Order bus majority testimony ruled — place company claimed inadmissible, it did I dissented. The signs sidewalks, testimony on the and that was admitted under Rule 43 signs placed (c) over the Rules of on or doors were Federal Civil Pro- provisions cedure, specific “pursuant Chapter U.S.C. offer of Regular Mayor Laws of Session evidence. The statement is ties.) testimony so (The order and to with the showing why Since ordinance was Now, bring happiness never refer to it as perity Jackson, ed forcement transportation department standing That has been done City pertinent “Q. Jackson. A. over the ordinance policy I have been races, * * city is course, to maintain what Jackson preamble put everyone law of mine officer, keep should —to the racial council last City * under discussion in facilities you patterned * * * maintain down disturbances. transportation Mayor State hundred segregation. and the ordinance know and know as chief within quoted policy segregation. your under- I do not re- It has been respect separation people has work- peace members our years law en- requiring I police pros- ours, City city. length. City and facili- We his clared whether the State however, was fected his enforce all direct taken from ter of tainly policy reflect ordinance, apart health and ^[*] adopted son as peace, citizens,’ and then of course we zens, regardless order “Q. exactly extremely station in ^[*] unconstitutional, examination that it was his State, separation ^[*] he did you adopted in the * * * Attorney based on duty what have policy have stated it? A. general the laws thereby State State ordinance prevent life, say evasive on I they Does the from the of the races.” law, General testified State to maintain Attorney welfare of race, in and that breaches had Jackson said, they and is City the State. promote law, color, body of the not been ordinance, preamble, answering were he would General; laws is of the all based Jack- creed duty mat- good this. cer- laws de- af- He call to such one incident where there has them “if conditions enforce arise necessary been an arrest thought under this ordinance point I it was any segregation ordinance. We bring in a effect.” He said them into have at all times maintain tried to concluding statement: peace keep and down disturbances. begin- “My purpose since the sole policy. policy That is the Our calls instigated ning troubles of these great give for a deal of and take. It instigated were outside our State agreeable to both the white and brought State, and to our has been * * * you the colored. So see that preservation peace order and go can laws come and laws can within the borders of State of changed, policy laws can be but the Mississippi. that, I have undertaken adopted happi- here to maintain along public with all other officials ness races, contentment between the and law enforcement officers of this law, within the and at the State.” giving same time the benefit of the great advantage years undertakings meetings over the Part of such were together living quiet. just prior to and after the arrival of the May group first of Freedom Riders “Q. this Does ordinance accu- by himself, Mayor 1961, attended rately policy, effect, reflect * * * of Police of Chief Jackson. Plans you just were have stated? * * meetings at these dealing discussed However, A. I think so *. Freedom Riders. point On you it, as Your Honors read have testified: he paragraph read the last there, says, City “Q. you ‘The Council of the said Did discuss with the duty of Jackson steps owes to its citi- Chief of Police what he “Q. Negroes going preserve were the do- law and What to take to * * you plans. ? in there arrested Yes, we discussed A. order? They the terminal. A. came in “Q. plans? A. those What were they They “Q. they exactly plan do A. did ? do what was to What did, keep riot and came in and them had seats of all down some of first disorder, sarily neces- arrests some of them stood. these They could followed. “Q. they A. did What else do? your easily clients had been avoided That is about all. * * only avoided wanted them “Q. they IA. armed? Were responsible Attorney is not General never found them armed. law state for the enforcement “Q. they No. loud? A. Were nevertheless, courts; chief is, local he “Q. they curse Did use policymaker enforcement. law A. words? No. plaintiffs evidence offered anybody? "Q. they Did strike pas- peace of for breach of arrests sengers A. No. There carriers. on the defendant anybody? they “Q. Did threaten the busses incidents on of two is evidence A. No. fact, City (In Lines. of the Jackson you I reports “Q. A. City them? Did arrest Lines contain records of the Bailey incidents.) Plaintiff did. two sure Pat- one Charles testified to terson, Negro, arrest of “Q. Because A. what? For refusing move people and presence provoked got and sat bus when a on the white man disturbed, to become them caused Gray- down Witness next him. Doris law maintain I it best felt arrest of herself son testified to leave them and to order and order City got companions Lines on a three who obey they refused there. When my order, ain and sat bus the center arrested. were stopped front The was seat. bus you you explain “Q. what Would along. policeman came minutes before pro- presence there ‘their mean any evidence In neither instance is there Well, I stated people’? A. voked threatened actual or in record an earlier, we had advance notice that peace. driver breach of The they coming to Jackson were to cre- Grayson incident testified: an incident similar to what has ate cities, my happened duty and other any “Q. per- white there Were to maintain and there was law or- A. on the bus ? Yes. sons get der, I felt it best to the root “Q. the time At these four Ne- there, of the trouble out groes bus? were A. Yes. I them is when ordered to leave. any “Q. Was there disturbance “Q. they What did do in violation Not a on the bus? A. bit. A. I of law and order? When ©r- they leave, just any “Q. dered them stood Was there disturbance though they there, hadn’t heard No, any.” bus ? A. outside the say repeated word. I me order also includes evidence on The record they times, and refused several obey, approximately arrests Freedom when I arrested in the terminals of the defendant Riders them.” Captain Ray carriers. interstate all the testified that other arrests He person- Department, Police who Jackson waiting remaining rooms of de- ally majority, all, if not made virtually pots were identical. arrests, respect with as follows testified testimony respect Negroes The to the cir- activities of the arrested waiting surrounding room of the Illinois cumstances white arrests Rayfieid explicit. equally Chief Police Railroad: Central questioned on the of crowds situation could existence the by restraining not have been handled any arresting people offending terminals around „ party. group arrived and were of Riders when a were He testified that there arrested. This is the extent of the evidence in occasions, ar- first one on the two such potential the record on breaches May Trailways terminal rival at the peace. present, and another he was when brought by This action was three Ne- group Illinois first came to the when the gro plaintiffs from the of Jackson terminal, a re- he had of which Central action, as a class on behalf of themselves Trailways terminal, port. tes- he At the Negroes similarly situated, other un- people wait- were tified a number Rights Act, der the Civil 42 U.S.C.A. congregated out- in cars and others equitable § creates cause knowledge none To his side the terminal. against of action armed; fighting, loud or of them were “Every person who, attitude, however, hos- under color of he termed any statute, regulation, ordinance, were asked tile. The ones not cars custom, usage, any Illinois disperse, State did. At the reports Territory, subjects, Rayfield terminal, had or causes to be Central milling any subjected, people about citizen of United that 10 or 15 were exhibiting person ju- and dis- States or other within the the street hostile They deprivation asked to risdiction thereof to the turbed attitude. were gone by any move, they rights, privileges, complied immuni- and were arrived. then ties secured the time the Riders the Constitution He * * testified; laws “Q. you any jurisdiction three-judge Did receive other re- your ports police pursuant officers of is invoked to U.S.C. § only constitutionality nature? A. That’s two. 2284 because the attacked. statutes has' been “Q. only you reports two segre- statutes attacked the so-called know I about?” A. The two gation of Missis- statutes received where there could have been sippi require'racial any you just like dis- situation were waiting all common carriers and in room cussing. Now, the others I re- don’t room facilities used rest the car- call that there has been riers, provide penalties criminal trouble around of the terminals.” persons refusing carriers and to abide Ray Captain testified that the events laws.3 these roughly within the terminal were similar all for arrests: the Before the arrival jurisdic- The defendants attacked the group, people a three-judge inside the terminal would tion of the court on the remarks, particularly ground none of which make that these statutes have never necessary, threatened If he violence. been enforced and no arrests have been would order those provisions. all who did not have made under their Under the or some tickets business in the terminal Ullman, recent case of Poe v. 1961, 367 U. leave; they always complied. 497, When 1752, 81 S. S.Ct. 6 989, L.Ed.2d the arrived, group the remarks were complete some failure to enforce a law, made, people in the terminal would fol- coupled open with its and notorious vio- around, low them prevents but no acts of violence lation, the federal courts from place. Ray Captain reaching ever took constitutionality ventured the of the stat- might opinion controversy since no that there ute case or pre- been incidents violence had he not If such were here, arrested sented. case Riders, three-judge juris- there is no indication court would not have 7784, 11, 7785, 7786, 7786-01, 7787, 3. These statutes are: Title Sections tions 28, 2351, 2351.5, 2351.7, 7787.5, (1942). and Title See Ann. Miss.Code 614 however, shows, effectively dispose ion The evidence of the case.” diction. (287 pp. Jack- 393-394, U.S. at 193.) carriers the defendant 53 S.Ct. signs pursuant p. at police maintain son suffi- This is command of these statutes. also, 1933, See Oursler, Hurn v. 289 U.S. a to create enforcement cient evidence 238, 1148; 586, 53 S.Ct. 77 Florida L.Ed. ju- controversy maintain case or Jacobsen, Lime & Avacado v. Growers three-judge court. risdiction 1960, 73, 568, 362 U.S. 80 4 L.Ed.2d 568; Dwyer, 1958, 202, Evers v. 358 U.S. alternative, ar- defendants In 178, 79 S.Ct. 3 L.Ed.2d 222. segregation gue jurisdiction over may to the collateral extend statutes City Mayor, Jackson, The Com- problem of enforcement urge that missioners and Chief Police stat- means breach City cannot be this action. sued in grounds: (1) au- is no there utes on the They rely 1961, Pape, v. Monroe (2) thority 2284, the court under 473, 167, 50, U.S. n. 81 S.Ct. L. The con- of fact. not consider issues Egan Aurora, 492, City Ed.2d jurisdiction means cept no of federal 365 U.S. 81 S.Ct. Constantin, Sterling v. In this narrow. question 2d 741. The relevant to is also 1932, 287 against Airport relief Au- the Jackson jurisdiction three- L.Ed. thority. originally a court, test judge invoked to holding Pape The direct Monroe v. limiting production, ex- oil state statute municipal corporation is that a is not a at- of Oklahoma’s Governor tended tempt ‘'person” meaning within the of Section production same institute the holding purpose 1983 for the liable it law. martial under limitations fiat damages, is based find- three-judge made extensive court Congress rejected an amendment findings “The and concluded: evidence corporations which would have made such riot; fact, nor no insurrection shows money damages specific liable for cases. territory, existing no time 365 U.S. at S.Ct. 473. de- courts, civil no failure of closure of argue fendants “person” that if the is not a basis, court On this authorities.” purposes damages, it can- law the invocation martial held that “person” purposes of an in- military invalid and that the orders argue junction, and further Su- enforcing production limitations specifically preme so held foot- Court process. denial of due Su-

were preme supra Pape, note 50 of Monroe upheld the district p. 191, p. U.S. at S.Ct. at 486 when it approved specifically extensive : , said findings of fact: * equitable cases in “In a few “Accordingly, been decided sought, municipal- has been relief great variety of in a that, circumstances ity along named, city has been questions of law when and fact officials, as defendant where viola- intermingled as to are so make it 1983, 42 U.S.C. 42 § tions U.S.C.A. necessary, pass upon in order to alleged. 1983, See, were g., § e. question, may, the court federal City Douglas Jeannette, v. 319 U. analyze (287 should, the facts.” U.S. 882, 1324]; S. 157 S.Ct. 87 [63 L.Ed. 195.) 398, p. p. 53 at S.Ct. City Atlanta, Holmes v. 350 U.S. say juris- went on that the The Court 141, 776], 879 S.Ct. 100 L.Ed. [76 three-judge court diction question opin- dealt The our “ * * * every ques- extends not cases, ion was raised in those involved, whether state or tion parties either the Court. law, and enables court municipal federal we hold that a Since cor- judgment ‘person’ poration not a décision of within vest its meaning questions opin- 1983, as in its no inference §

615 however, any longer fundamentally, contrary drawn More can be City right against plaintiffs’ of action those cases.” from depend The does not alone 1983. § municipality question of whether a The rights Con- asserted are based on the here equitable 1983 for could relief, under sued § be stitution which itself creates cause Court, however, was not before equitable and, action for relief within in- Court and I believe that do not meaning (the 1343(3) of 28 U.S.C. § prior a footnote to overrule tended in jurisdictional provision upon which corpo- indicating municipal eases based), suit is Cf. authorizes this suit. Douglas v. sued. ration could so See Hood, 1946, 678, Bell v. 327 S.Ct. U.S. 66 City At- Jeannette, supra; Holmes v. 773, 939; 90 L.Ed. Brewer Hoxie v. City Mayor supra; lanta, Council 1956, 46, School Cir., No. 8 238 District 877, City Dawson, U.S. v. 350 Baltimore 103; 91, Wechsler, F.2d Hart Fed- & affirming 220 133,100 774, L.Ed. 76 S.Ct. System eral Courts And 794- The Federal especial- (4 Cir., 1955). This is F.2d 386 (1953). immunity 97 can Doctrines of history legislative ly true when the application equity have no suits solely is directed which the relies brought to restrain invasions of federal damages. question are We rights. Sterling constitutional Con- question of tor- with the here concerned stantin, 1932, 378, 393, 287 S.Ct. U.S. 53 City liability and the tious action taxpayers 375; 190, parte 1908, 77 L.Ed. Young, Ex which for such over actions 123, 155, 156, 441, 209 U.S. 52 S.Ct. possible little had control. 714; Company, L.Ed. Graves v. Texas equi- prospective question here is one of 1936, 393, 818, 403-404, 298 U.S. 56 S.Ct. protection plain- relief table 1236; Banking Georgia R. &R. rights against not tiffs’ constitutional just Redwine, 1952, v.Co. U.S. individuals, activity tortious n. 96 L.Ed. 335. City ordinances, enforcement of but the City I declaring would hold that officially City policy, Jackson and offi- Airport Authority and the Jackson cially City are This recorded on Journal. proper parties. has been same issue Seventh before the Appeals Circuit Court of since Monroe v. attacking ju- All motions this court’s Pape, and that Court held: risdiction should be overruled. sup- “None reasons Nor should this court con- abstain from city’s immunity port a from an ac- sidering may merits. damages tion juries in- tortious rely on Harrison v. N. A. A. P.,C. already officers, inflicted its 3 L.Ed.2d agents applies or servants to this approves abstention where why apparent No case. city reason is might the state law attacked be construed officials should its not be re- by the state courts to avoid the consti- prospectively violating strained question, tutional since the rights plaintiffs’ pur- incapable statutes a valid construc- legislative to its own suant enact- authority No tion. whatsoever injunction ment, and an not be proposition, that, found for where granted provided in 1983.” clearly statute unavoidably a state Ridge, Cir., 1961, of Park Adams face, comity unconstitutional re- reasons, F.2d For these I quires courts be allowed the footnote 50 in believe that Monroe v. declaring. privilege of so Such a rule may say that, Pape be construed to be, abstention, would but abdication municipal corporation or not a judicial whether may of our function. Nor this equitable Douglas subject rely 1983, to relief Jeannette, under 1943, court v. § is indicating 157, 882, 1324, from cases 63 S.Ct. U.S. inference that it L.Ed. no may courts, liability held that federal relevant issue of its is as a mat- damages. comity equitable discretion, and ter of for pattern practice an criminal and over extended interfere with state should not proceedings only period a officials of time. Such record can and law enforcement finally single remedy prepared provided in adequate be in a suit which an is when protection settles the issue and for all. proceedings the state for the once rights. some in Jackson 300 citizens arrested and assertion of all constitutional Douglas May expected provide v. cannot primary requirement since be adequate the one at their a similar to be an trials record Jeannette is that there case; yet, it, here. in there remedy; this and without case state not the is developed may way and exception be no for them to assert An has to Jeannette protect rights. All their behalf constitutional in favor of class actions on seg- go “adequacy” Negroes supported these factors combating state Ap- proceedings regation. criminal breach the Court stated As against Equally weigh important Davis, Cir., and peals it. in Morrison v. is under cricumstances of this case 252 F.2d 103: above, that, of the reasons some re a case as “This is not such Negro will citizens in withholding quires of federal attempt even their constitu- to exercise comity, court action reason rights tional their remedies because state protection of civil since for rights wholly possibly theory” “adequate in are Congress the kind asserted inadequate practice. separate distinct has a created bearing Another on the ade- factor 42 U.S.C.A. federal cause of action. proceedings quacy may criminal as state the rule be Whatever § arrested Freedom Riders prosecutions, the is to other threatened this case were travelers interstate Supi'eme presenting case Court a de- commerce. For such travelers layed by affirmed issue an identical factual trial, required to be arrest court trial judgment county Gayle, to return for a de novo trial, v. [Browder case Browder again appeal, perhaps an F.Supp. aff' d D.C.Ala., 142 114] is interstate 145,1 L.Ed.2d an unreasonable burden on 903,77 S.Ct. U.S. only ad is the was commerce when their crime contention same in which statutory undisputed is this assertion of To the extent vanced. rights. Douglas v. constitutional This burden inconsistent Jeannette, makes wholly proceedings the state Pa., 319 U.S. criminal inadequate consider must an we alternative present suit. modified.” case earlier Any excep- validity an further Actually, much doubts as not so application of the Jean- of the distinction practical drawn in Morrison tion Davis, Douglas or the refutation of “adequacy.” For requirement of nette Jeannette, put by considering great are to rest that a to this suit the alternative bearing Negroes Fourteenth Amend would of individual number duty ment and U.S.C.A. 1983 on the protect raise Supreme of this court. opportunity myriad through procedure Court had rights pass on the basic thrust county courts, police courts and of local purpose of the Fourteenth Amend courts, prospect appellate with little adopted. soon after it ment In the they reach the United before of relief Slaughter-House Cases, 1872, 16 Wall. Supreme That Court. Court al- States 36, 71-72, L.Ed. heavy ready docket without numer- said: Moreover, proof cases. ous straightforward may not be a repeat, then, light “We here, in the case As proposition. recapitulation true events, almost policy practice of state history, recent too called nature apparent proof all; after familiar to us become securing however, the specifically, casual examination most the vio- rights atmosphere of in an amendments, of these no language of these unleashing pas- the lence caused impressed with to be fail can one as- mere prejudices which sions in them purpose found pervading one all, engendered a rights each, sertion these lying foundation at the population. The portion of white them none and without Congressional create was to solution suggested; we even have been would remedy through courts. the federal race, slave freedom of mean Court states: security and firm establishment protection freedom, and the that long “The and exten- debates were newly-made and citi- freeman abundantly sive. It clear that is of those oppressions from the zen legislation passed: one reason the was formerly unlim- exercised had who right was to in fed- afford a federal It is true him. dominion over ited because, eral courts reason amendment, only the fifteenth that prejudice, neglect, passion, intoler- negro by speak- terms, mentions the might otherwise, ance state laws slavery. and his of his color not be enforced and the claims just is that each But it as true enjoyment rights-, citizens to articles addressed other grievances was privileges, guaran- and immunities designed race, that teed the Fourteenth Amendment remedy fifteenth. them as the might agen- be denied the state (365 cies.” 480) say U.S. at at do not no one else “We negro pro- this can but share * * we tection *. But what do Mr. Justice Frankfurter adds to this in say, and what to be under- we wish separate might opinion his called what just is, stood that in fair and right the substantive exercise phrase construction of section or jurisdiction: federal amendments, necessary it is these “ * * * theory Re- that the purpose to look to the which we have Congress construction could have pervading spirit was the said principally ‘juris- meant § all, them designed evil were provision granting * * dictional’ access- remedy original federal forum in lieu- The last section of the Fourteenth slower, costly, more more provides Congress Amendment “The appeal route of hazardous federal power enforce, by appro- shall have fact-finding courts, for- priate legislation, provisions of this gets providing important how a fed- legislation already article.” Such was among trial eral the sev- Slaughter-House on the books when the purposes Ku Klux Act. eral decided, very were Cases and the section *** create Section does plaintiffs brought under which the right suit, 1983, may But a ‘substantive’ relief. U.S.C.A. negative traced section 1979 of the Revised the fact this does Statutes section of the Ku Klux Act impulse powerful behind the crea- April 20, 1871, 17 Stat. 13. This sec- right ‘substantive’ of this was- tion recently tion was Supreme before in, purpose it be available Pape, supra, in Monroe v. where through, original shaped fed- and be legis- Court discussed in detail its (365 U.S. tribunals.” at 251— eral history purposes. As lative with the 518.) Amendment, Fourteenth section was apparent Congress purpose newly- passed Not to secure protect very provisions Negro population these freedom of won in of rights plaintiffs assert, South; kind it was intended to deal more

618 legislative history the supra, inquiry of 1983 such section an demonstrated that danger greater makes controversy. clear that the the was case there no an In violence, important case, of Nashville, it Ry. more is earlier C. & St. L. Co. accept Browning, 1940, federal and ex- v. courts should 362, 310 U.S. 60 S.Ct. jurisdiction. major por- 968, ercise Thus, 1254, 84 inquiry L.Ed. an un such tion of defense Jack- of covered a valid administrative amend Attorney son and of the tax-assessing of Mis- ment to a General statute and the sissippi, alleged attempting justify ac- discrimination found was to be danger violence, tions a Sterling because valid distinction.4 *In v. Con actually argu- provides powerful santin, supra, inquiry most uncovered the juris- ment for evasion exercise the Governor of Oklahoma. grant remedy diction and Supreme a federal to As a later inter case protect rights. preted plaintiffs’ Sterling Constantin, v. majority position takes the “There employed martial law was major ques- support issue this case is the of an order of the Texas peace limiting tionable the breach Railroad pro use Commission statutes, and that Harrison duction of under the inoil the East Texas field. sought case we should abstain to allow the Governor was to be re plaintiffs’ part i-eourts to construe strained objec them. The main segregation (.attack, however, upon enjoin is tive to ‘the execution of an statutes, peace breach of stat- order * * * made administrative ' utes, they allege commission,’ the State is evasions— n practicing simplest indubitably all within § [now it makes arrests under .”5 § 2284] the breach peace seg- statutes for violations of case, In this under the facts after shown statutes. If there substance regation a full applicable trial and the law to these allegation, to this a fraud would be facts, I am find unable to a bona fide jurisdiction of to ab- this court Rather, breach issue. give recognition stain and such an clearly facts show that are constitutionality arrests evasion. When the segregation. simple a evasion to enforce attacked, a state statute is under we are ground provides duty This evasion for ab- inquire no into as it is the law actually' stention.6 applied. Ullman, In Poe v. Phillips States, 1941, 5. v. United “Here, according petitioner’s U.S. 4. own 484, 246, 253, 480, 85 L.Ed. organs S.Ct. claim, all the are con- the state forming practice, 800. systematic, unbrok- to a forty years, than and now en for more question Dwyer, 1958, 6. also Evers v. 358 U.S. See the first time. It would be 222, 202, 178, 179, L.Ed.2d 79 S.Ct. conception jurisprudence narrow three-judge the Court ordered where notion of what ‘laws’ to confine jurisdiction court, was invoked to whose books, written the statute found enjoin transportation Tennessee statutes gloss disregard the has writ- segregation, life requiring to hear that and practice “any Settled state cannot it. other method ten state-enforced Memphis transportation guarantees, supplant but it facilities.” what is state law. The establish can continually Court has struck down equal protection did clause not write an segregation, schemes state-enforced empty into the Constitution. formalism directly were done “in- whether ways Deeply traditional of car- embedded ingenuously.” Cooper geniously or policy, rying out state such as those Aaron, 1, 17, 1958, 358 U.S. 78 S.Ct. complains, petitioner often 1409, 5; 1401, Texas, L.Ed.2d Smith tougher truer law than the dead 128, 132, 311 U.S. Nashville, written text.” 84; Wilson, 1939, words L.Ed. Lane v. Ry. Browning, 1940, Co. v. & St. L. C. 59 S.Ct. 307 1281; Parish Bush v. School 310 U.S. see Orleans

619 (to the on of the use words The statutes and ordinances segregation Attorney General), require the the com- their face the facility plete disorderly the any transportation lack of conduct on races null, passenger’s part unconstitutional, arrest. time of at the should be declared however, Education, explicit, This inference is made Board of and void. Brown v. testimony 686, Mayor, states L.Ed. the who 483, 98 1954, 74 the 347 U.S. S.Ct. attempts that, anyone definition, 873; M.D.Ala., F. who Gayle, 142 Browder v. 145, “separation races” 903, to test of the 707, Supp. 77 aff’d U.S. S.Ct. 352 pro- peace Mor- creates a breach of the (1954); 114 Baldwin v. 1 L.Ed.2d 780; Cir., gan, Boman vokes 1958, F.2d disorder. 5 251 1960, Birmingham Co., Cir., 5 v. Transit for This met head on issue must be 280 F.2d 531. oc- two evidence on at least shows that danger riots impermissible to casions there was It should declared Although past does disorder purport disorder. laws to use deal prospective in- order, not concern us far as a or maintenance of law strong junction concerned, segregation is there laws, is to maintain facility. possibility would To situation transportation that a similar races in go ef- injunction into after an did end, no arise that be declared that should it fect. passenger passenger is sub- or intended disorderly ject to arrest conduct for by again return- The issue decided is passenger unless the breach suit, Four- to the basis of this something disorderly himself or does is and section teenth Amendment facility place occupy than to some more adopted this The Amendment by persons for another intended use completion passed after the section soon to himself legis- race and refuse remove glance the Civil A War. facility. place arrest To from such history ih cited lative of section is passenger under such circumstances Pape, supra, v. demonstrates Monroe segregation therefore state-enforced Congress had evidence before it extensive unconstitutional. in the South of the violence caused nowhere, rights. Yet, newly-won Negro argue strongly The defendants or- in section merely in the Amendment either point been last that the State an intimation rights can found asserting police there be under danger either or the power existence law order. maintain grounds is violence clearly shows, however, revoca- evidence rights granted of constitutional pri- tion passengers was ever arrested none marily Negroes. Rather, disorderly. poses ques- answer This .the himself Congress provide only juris- towas passenger, federal of whether a whose tion remedy and a diction federal undisputed for their is the exercise of crime protection. From it right, can be- be arrested provocation concluded provokes violence this exercise others cause to__the actually disorderly in. commit others..is-no-def-ense. threaten deñlaTof plaird±ffs’..c.onstitu±ionalrights. these is the substance If That this acts. were, clearly position inferred it defendants and this court defendants’ spell post- know this case would facts to which themselves ponement enjoyment signs of full out- sidewalk of constitu- testified —the in, rights Negroes waiting pursuant Deep rooms tional side many years segregation ordinance, all the arrest of South come. The Su- attempted preme “crack the laws” Court faced and who decided this is- those E.Supp. 182, Boynton Virginia, 1960, E.D.La., Board, v. 194 ail’d statutes. 364 States, nom. v. United L.Ed.2d Gremillion sub 1961, ; (trespass) Birmingham Boman It uncommon 82 S.Ct. 119. attempt Co., Cir., to enforce states Transit E.2d police power (breach peace). through general (cid:127) Cooper Aaron, 1958, group, although sue in 358 U.S. sizable, the crowd was 1, 16, 3 L.Ed.2d hostile, they their attitude never when said: created an actual proportions beyond or reached disturbance ability rights “The constitutional of re police handle, to even had the Riders been spondents are not to sacrificed be allowed to remain in terminal. It the yielded the violence and disorder to should, point, at this noted be that the upon the actions which have followed Mayor by of Jackson had been notified Legislature. of the Governor Attorney the General of the United ago years As this Court said some if, that, States before arrival the Riders’ in opinion in a in a case unanimous Mayor’s opinion, the seg the situation volving aspect of racial another authorities, by could be not handled local regation urged pro that this : ‘It is ready he stood Mar- to send in Federal promote the posed will shals to aid the enforcement of order by public peace preventing race con Montgomery, had been done in Alabama. is, im this flicts. Desirable as And I think it can be said with assurance preservation of the portant as is the that, if at the law en- future time ac be public peace, cannot aim forcement officials by complished find that laws ordinances they cannot pro provo- themselves rights handle deny the created which cation of by Negroes’ violence caused federal Constitution. tected exercise of their rights, constitutional Warley, 245 U.S. Buchanan v. Attorney General of the Thus United States 149]. [38 ready would stand pre to send in Federal here be and order law are any stronger necessary Marshals or Negro chil force by depriving the served rights.” necessity enforce order. There no of their dren forego rights guaran- exercise Constantin, 1932, Sterling also, v. See teed the Constitution and laws of the 375; L.Ed. prevent States in United order to violence F.2d Cir., Johnson, 8 Sellers part persons opposed on the ex- 1961, A.D. Morris, 877; Rockwell rights. Any ercise of such such sur- 211 N.Y.S.2d 2d tremendously render to mob rule would justified in be police would officer A encourage spirit. mob We must con- a trans- from person move requiring a mob, tinue to be ruled not sudden, facility aof portation because Country. the Constitution and laws our danger unexpected, extreme blood- my opinion permanent It is in- could not otherwise avoid- which shed junction against City should issue record, evidence in There is no ed. Jackson, Mayor, Commissioners and having however, a situation of such Police, Chief of and the Jackson Munic- In the case the incidents on arisen. ipal Airport Authority to restrain them buses, Lines there is the Jackson acting contrary foregoing potential the intimation of dis- even protect and to declarations to the best of Except for the two Freedom order. ability right passenger gathered where crowds arrivals Rider passenger or intended to exercise his con- transportation terminals, outside rights public stitutional transporta- anof actual is no evidence breach there tion facilities. potential min- which a permanent injunction police This could officers not have imum should ex- by arresting readily Attorney tend to the handled the individ- State General. creating actually responsible the disorder. In the While he is not ual for the en- forcement of through the crowd surrounded where case laws easily courts, Central, dispersed prosecuted local it was and has Illinois none of arrived, putting even arrests found record, par- Riders before he meetings all others. took the same situation both before and after day May of the first .Rider the arrival of the Freedom May Riders on On principle that a court reaffirmed the manner determined proceed- equity enjoin could criminal be, there- would situation ings filing aof suit after the commenced official the State As was, handled. after primarily right. duty in federal court to enforce the same en- charged respon- The Court stated: held law, he must force State meetings at these plans made sible * * * objected “It is further been way in which .and juris- equity no that a court of carried out. enjoin proceed- diction to criminal issue injunction should permanent otherwise, ings, A un- indictment or requiring him against gen- Carr Cicero This, der the as a state law. Air- at the discrimination without rule, serve ex- eral is true. But there pub- members port all ceptions. Restaurant When indictment such Mu- frequent the Jackson proceeding brought lic who use an. is to enforce request Airport service. alleged statute, nicipal unconstitutional subject-matter in- is the carriers, Southern Continental quiry already pending in a in a suit Lines, Greyhound Lines, Inc., Southern having court, Federal court latter Inc., Jack- Railroad, Illinois Central jurisdiction first obtained over the they City Lines, Inc., have stated son subject-matter, right, has the in both compulsion of acting apparent under are City civil cases, and criminal to hold and any statute or State ordinance maintain jurisdiction, such to the ex- segregation races maintenance clusion courts, of all other until its of which transportation facilities in their * * * duty fully performed. is guilty; and, that, promptly they may be Where one commences a criminal that such court’s declaration proceeding already party who is unconstitu- and ordinances statutes pending a suit then in a court of signs in- all tional, will remove equity, proceedings if the criminal facility dicating place is in- brought are right to enforce the same any par- persons of for the use of tended is in issue before that enforce further race and will not ticular court, may enjoin the latter such enforcing segregation any part or have proceedings.” criminal any transportation fa- races declaratory judgment cility. simple A 161-162, 209 atU.S. 28 S.Ct. 454. See at necessary as to all that is therefore seems also, Sawyer, 200, 1888, re In 124 U.S. This court said carrier defendants. 211, 482, 402; 8 S.Ct. 31 Truax v. L.Ed. however, jurisdiction, so should retain Raich, 1915, 33, 239 U.S. 7, 60 judgments could that further orders aff’g 131, L.Ed. 219 (D.Ariz., F. 273 be nec- be entered if it should thereafter 1915). In anti-injunction terms of the essary or advisable. statute, 28 2283, U.S.C. power § it is a prayer relief, plain- In their jurisdiction” “in aid of prevent seg- tiffs ask that the enforcement state courts from interfering with the regation statutes and other statutes determination of properly issues before enjoined. used to enforce be the federal court. The propriety of They only prayer include in this granting such request, however, is dis- restraining enforcement, future cretionary, strongest also the continued enforcement of these equities support will outright such inter- against all statutes of those arrested proceedings ference with state already filing According after the of this suit. I am opinion commenced. of evidence, 190_. this includes some equities exist in this case. grant power persons. the court to plaintiffs fully by have had a supported motion for request law. is injunction pending 123, preliminary 1908, since the parte Young, 209 U.S. In Ex filing original 441, complaint 714, Supreme June 52 L.Ed. S.Ct. Although-the plaintiffs 9, Education, filed an also 1961. Clemons v. Board of July Cir., 857; complaint make 17 to amended 228 F.2d Board of Supervisors explicit breach Wilson, their attack more 340 U.S. original complaint peace arrests, .affirming S.Ct. 92 F. enough broadly Supp. them. (E.D.La., 1950) (preliminary framed to include injunc preliminary injunction granting L.S.U.). When a motion for admission three-judge made, a injunction issued, tion been Had such an arrests give prosecution an ex is directed statute to would those arrested hearing peditious decision. 28 starting terminated, have been at 2284(4) application provides, very C. “the § latest with the first hear- date of the assigned given precedence ing, July shall hearing practicable earliest The continued refusal to rule on this day.” provides 28 U.S.C. 1253 motion, although pending has been granting this motion or denial of June, since the 9th of in violation of Court; directly appealed Supreme duty law, this court’s under and the right. appeal R. as a matter of lies refusal should construed as. therefore be States, N.D.Ill., C. United A. v. facto de denial. The for con- reason F.Supp. 660, aff’d, 341 U.S. tinuing August hearing 8„ the first until Thus, (1951). L.Ed. 1062 1961, due to the an Assistant sickness of plaintiffs to an wére entitled Mississippi Attorney Genéral, may have- my early hearing but, decision, respect been warranted with to relief' prelim opinion, were entitled ato against superior, his but was. inary injunction. Bran Mr. Justice As present and, subsequent events have- Wilson, Tool deis wrote Union Co. shown, willing it was both able to- 107, 112, 1922,:259 carry vigorous on a defense its own. * * * “Legal 848: discretion behalf. apply well- extend does not to refusal Thus, undisputed facts, because of the principles law a conceded settled plaintiffs” clear violation of 'in facts facts.” essential state of rights, delay in rul- the unreasonable undisputed,' this' case the law to be preliminary injunction, on the all irreparable applied clear, injury prosecutions passengers or intended' by evidence of a established clear and passengers breach, who were arrested for deprivation of continued filing after the orig- rights. argument defendants’ complaint 196.1, inal on June who, injunction changed would such an as the evidence shows, case were- quo and the status therefore should not disorderly, not themselves should be en- granted was before have been the Fourth joined. very Appeals in a sim Circuit Court dissenting opinion Since this was writ- involving segregation ilar case of trans ten, I opportunity have had the to read' facilities, portation and was decided ad opinion Judge the memorandum Frank versely Henry the defendants. Johnson, Jr., M. in Lewis et al. v. The- Airport Cir., Commission, Greenville Greyhound Corporation al., et M.D.AIa., F.2d 631. The defendants F.Supp. 210, myself and find rely upon allowed to should agreement views, nearly all of the own continued unconstitutional behavior Judge expressed Johnson in opin- defeating purposes motion ion. injunction. preliminary I would fol ruling Henry respectfully low case. I dissent. See

Case Details

Case Name: Bailey v. Patterson

Court Name: District Court, S.D. Mississippi

Date Published: Nov 17, 1961

Citation: 199 F. Supp. 595

Docket Number: Civ. A. 3133

Court Abbreviation: S.D. Miss.