*1 * * charged facts from the mined bring may pleaded facts as charged one stat- within offense although ute, another statute Masi in the indictment.” ferred (5 States, F.2d 132 United v. 1955). any prejudice
Appellant not cite does above
against a result himself as
rule. properly overruled
The District Court
appellant’s his motion to correct sentence. judgment
Therefore, its
Affirmed. al., Appellants, ANDERSONet
W. G. al., Appellees. ALBANY
CITY OF et
No. 20501. Appeals Court of
United States Circuit. Fifth
July 1963.
Rehearing Sept. Denied *2 privately in races is enforced the owned
transportation facilities, theatres and practices ap- taxicabs. It is these which pellants sought enjoin by their suit.1 hearings by After extended conducted separate the trial on court occa- three sions, the court four named held the represent did class the they brought suit, whose behalf because they the record in- did not disclose dividually had ever been denied access public the facilities in had been suit or compelled to use them on a thereupon basis. The court held that they could not recover own on their be- they half because had not shown Ga., Hollowell, Atlanta, C. B. D. L. individually denial to themselves and Ga., Albany, King, Baker Constance could not recover on the class behalf of Motley, appellants. City, New York because had not shown Burt, Albany, Ga., Rawls, G.H. P.H. were members the a care- of class. On appellees. light ful of in review of all the evidence TUTTLE, Judge, Before Chief and of decided this Court cases both Judges. GEWIN, Supreme Court, RIVES and Circuit we conclude that dismissing the trial in court erred complaint failing grant in- in and Judge. TUTTLE, Chief junction sought. appeal appellants, This is an Negro city of Al- residents of Much of record four was consumed Georgia, appears bany, officials the so-called of what have been an effort “Albany Movement,” first, from an of prove, order behalf defendants to dismissing com- no demand had been made which, plaint, action, policies as a class for an end to the about continuing enjoin they complained, second, that, and, from the defendants which alleged segregation segregation fact, policies to enforce certain of racial practices publicly owned which about hundreds citizens operated city Albany protested, facilities and and in connection and privately public- protests frequent- owned, other certain but ly regulated, ly really arrested, facilities. did not exist at all. alleged during of the races is fact is that several times by police city Mayor enforced officers of course of the trial the Albany public library, touching recreational, in the that a stated demand policies auditorium facilities and these racial and through representative the existence of ordinances made to him as the city Albany, segregation Commission, and that plaintiffs prayed places Specifically, public the de- and other amuse- theatres enjoined “(1) ment; (2) threatening and be restrained From to ar- fendants alleged rest, arresting harassing enforcement of racial Plaintiffs From segregation publicly op- utilizing owned and class for and members of their publicly libraries, attempting parks, in owned and to utilize li- erated auditorium, publicly operated braries, depots, stations, buses, owned train bus operated parks playgrounds, taxicabs, places theatres other thereof, pri- to recreational facilities claimed amusement Plaintiffs vately operated persons by presently owned and buses and de- limited to white rea- privately operated policies pots, owned and son Defendants’ taxicabs, privately operated owned and ordinances.” meeting or was at a recall whether it declined change policy had been us.” Then “to whether it was delivered Commission. representing the him following testimony place: took respect to each Moreover, with complaint, mentioned seeing yes. facilities this, I recall *3 usually evidence, undisputed was “Q. matter or docu- And that is the themselves, to given by the defendants say requested you ment which segregation policies of the the effect that desegregation public facil- relates far effect so as then in were ities ? required facilities, and were public the documents “A. This is one not en- City Ordinance, by whether desegregation requests which defendants, by forced yes. facilities, of all regulated private businesses. “Q. taken What action been First, petition? to whether reference that them, had them appellants, or presented It was aggrieved by the selves been the feel- Commission. It was (assuming city Albany, policies ing Commission policies did that such the moment for exist) request too that the much, embraced question, response “When long-term on the based you received a ever the first time was area, customs of this knowledge gained any communication time to was feasible this not Albany Move existence of the of the ment?”, desegrega- complete consider Mayor Kelly fol as answered ; Albany tion and answer, difficult to “That’s rather : lows people repre- Movement or the senting organiza recall when the I don’t in that Albany Movement Albany first identified as the tion was properly should resort Ander I recall that do Dr. Movement. Federal Courts for redress.” I son, and Page, I Marion and believe dispute no There is real here but King, perhaps and Slater C. B. think literally in the thousands King (both Dr. Anderson and Slater Albany associated in the themselves suit), King not plaintiffs in I’m parties activities that all suit early sure, see me as as Feb came to repeatedly “Al- trial court called the the bany feelings ruary, discuss Possibly the Movement.” clearest Negro com members of the certain reply published in a indication of this is presented munity; at that I believe City Commission in one of the request to be submitted to time City newspapers purporting local to be an- Commission; which, in substance if requests swer to made the Move- sought complete correctly, de I recall reply ment above indicated. This as public facilities, I but all addressed “To the of the Al- Leaders exactly de what the as to am not clear bany reply Movement.” The did time that time. At that was at mand requests specific deal with con- Anderson and to the to Dr. indicated petition above, quoted tained in the but my judgment present others proper progress called attention to the which for the relief forum Negro made citizens. It (Emphasis Federal Court was following paragraph: included Added).” recognizes ques- “This response Commission Later, a further community composed Kelly Mayor of white that exhibit testified tion, peace citizens, and that presented him he did but was “THE ALBANY MOVEMENT in the form of exhibit Albany meeting November Move- of a Minutes 17, 1961, Minutes: November the first dated ment Opening remarks were made W. page as follows: P'r. of which objectives concerning Anderson G. and co-' harmony exist demands must and endure. made them defendants on the goals, how- of these achievement shows the evidence ever, flagrant rejected. vio- does not lie in the ordinances, lation laws purpose Assuming, as we do for the profane church, use of the testing here, the action of the trial religion ministry fur- for the justiciable order for there to be a objectives.” political therance of controversy there must be a demand following speak paragraphs ten racially there be an natory practices end discrimi- by Negroes enjoyed a class benefits as the class respon- within the or the some members which the class of Negroes sibilities of ended a class and *4 members, named are can there Negro statement, with the “If lead- light testimony nobe doubt in the of Albany ers of a sincere desire Mayor Albany of the of the of help acceptance people, earn for their was, fact, such demand in made accomplish can far en- more plaintiffs least two of the this suit. couraging improvement their Moreover, replete the record is with tes- moral and ethical It is thus standards.” timony period that over an con- extended plain only plaintiffs here, that not did the picketing stant car- demonstrations representatives both as the elected plaintiffs ried on these named unincorporated association called many repeatedly others made the same also, “The Movement” city officials, demands on the who recognized Negro leaders commu- uniformly by arresting plain- acted these nity, truly represent Negro citizen- many tiffs and others thus en- while ship city Albany of the demands gaged.3 being that were government. conclude, therefore, nothing Bailey We There dispute Patterson, there is no factual but that 369 U.S. 82 S.Ct. plaintiffs the four requires particular of a were members L.Ed.2d a plaintiff proceeding class whose interests were the basis a as this to previously temporary towards ordination efforts tie break- officers the being named segregation. ing given Also neces- down of tenure of office. These of- bonding sary preparations named, along facilities. Slater H. ficers were with naming King, followed was to serve as a committee to meet Anderson, temporary Mayor officex-s: Chairman and his an at- with the aides Page, Secretary. tempt previously negotiate the issues Open recording secretary, followed with reference discussion listed. A to tran- employed achieving negotiations spot, to be to methods desegregation. scribe the on the was authorized. also (in Tuesday meeting TARGETS the order PRINCIPAL be held Novem- Next appearance) FOLLOW: ber at 604 Mercer. Anderson, Station 1. Bus G. Chairman W. Page, Secretary.” Station 2. Train M. S. 3. Library litigation par- 4. Parks between 3. Other these same 5. Hospitals seeks a determination of the issue ties 6. City enjoined Buses to 6 NUMBERS 3 arrests should whether such be interfering appellants’ inclusions with the First rights mu- combined as Amendment under the Federal nicipal purpose facilities For Constitution. opinion, Brutality issue need not 7. Police be resolved. sought employment plain, however, Municipal that, to be It whether 8. emphasis pri- legal Illegal, all areas were with arrests repeated ority police amply put force utili- on on the notice of the represented by of the class demands ties. Jury appellants representation. there be an end to the 9. privately policies opportunities in owned 10. Job catering negro matters over which the trade. those defendants facilities named, next had control. officers were Permanent complaint as not to dismiss he can court arrest before subject himself to justiciable properly presenting class policy of municipal or state attack determination. in action for the Court’s enforcement continued public decision In fact facilities. turn to a determination We next right very recognized appel- be accorded the that should relief behalf on assert here posture present of the case. lants in the The Court’s statement class. “they represent a class seeking injunc- cannot preliminary The suit only part,” related permanent injunction whom was filed tion and plaintiffs who named finally effort July 25,1962. down It set prosecuted to arrested or been hearing had not court and sub- the trial prosecutions state enjoin actual September mitted the evidence Negro who citizens hundreds courts of opportunity This was the first many arrested, actually hearing full for a afforded and convicted. tried had been injunc- whom They preliminary on their motion class— of that not members matter The trial took the tion. however, class were, members four advisement for more than under adversely af- who were citizens dismissing its order months entered *5 policy racial by the State’s fected segregation. February 14, 1963. A the subsequent requirement, There no is clarifying entered order was Davis, Morrison v. have stated we filing as 15, 1963. After notice on March page 102, 103: at 252 F.2d 5al., et record, perfecting appeal the the of appellants filed a Court motion this requiring ar- incidents “[T]o or, injunction pending appeal, for an rights the to have rests hearing alternative, the that the the declared.” case on merits be accelerated. The the these not shown that it need be Thus taken the case was latter action was subjected hearing actually for final merits set down the individual reading bring Court. Our of the record this order to to arrest themselves clearly that, upon applica- so convincesus Supreme dealt action. Court legal proper principles, tion the the just a in the case such situation deny page trial court was discretion to Dwyer, 202, without at of Evers v. U.S. sought injunction the that we think it page 179, at 3 L.Ed.2d S.Ct. 204, 79 appropriate dealing right to direct that remand where, the a substantially issue validity City as Ordi- to attack the prayed. segregated requiring buses, the nances Court said: first We deal with the facilities municipality “A resident the operated by the of Al owned transportation use facil- who cannot bany. public parks, are These the in being subjected ities therein without cluding facilities, the recreational such as special statute to disabilities nec- swimming pools, courts tennis essarily substantial, has, think, a we Carnegie City library, known as immediate, and real interest in the City Library, and auditorium. While validity imposes of the statute which testimony much there is record disability.” City appear to make which swimming City pools paraphrasing in fact the ap- It takes but little to operated any publicly ply not on a supported tennis courts test to fa- segregated basis, racially there can be no Albany, and none cilities all, at dispute apply bus, but that and have think, real we toit taxi- operated. fact date so cab, and theatre been ordinances in Mayor required testified that the swim operated trial ming pools closed, clearly racially segregated been be hold, basis. We testified, he felt that it therefore, cause, he was as that it error was swimming disputed
impracticable
Anderson,
operate
Dr.
one of
desegregated
plaintiffs,
occasions,
pool
racially
basis.
had on at
on a
least four
required
after
been
Equally,
that until
in the
ac-
it was clear
sit
auditorium
Carnegie Library,
cording
trial,
pattern
time of
seat-
ing.
pa-
exclusively by
until
While the
used
then
white
evidence is
clear
racially segregated.
trons,
occasions,
A trustee
the nature
was
of some of the
Board,
Library
having testified he testified
that at least on
occasion
one
attending
program open
he was
inwas
that the custom of
public. It
clear
was
he
thus
effect,
it was dictated
whether
asked
attempting
patronize it on an occasion
answered,
He
the Board Trustees.
when the auditorium
had been leased
for me
answer
“That would be hard
private
otherwise turned
over to
or-
appointed
specifically.
I was
When
ganization
non-public
for a
use. While
Board,
It has
custom
in force.
requiring
no
Ordinance
time. That’s
force since that
segregated seating
Auditori-
say.”
following questions
Then the
can
um,
it was
we
owned
and answers occurred:
think the record
shows
practice
“Q.
and custom
out
carried
custom has been in force
City required
seating.
?
the Board
Trustees
Supreme
Since the
Court affirmed the
“A. That
correct.
Mayor
Fourth Circuit case of Dawson v.
“Q.
Carnegie Library
Of the
?
City Baltimore,
U.S.
774, affirming
S.Ct.
100 L.Ed.
Yes.
*6
386,
F.2d
it has been “obvious that racial
“Q. And,
fact,
a
as matter
it
segregation in recreational activities can
being
presently is
enforced. Is
longer
proper
no
be sustained as a
exer
correct ?
that
police power
cise of the
of the State.”
arising
except
Library
Yes,
For
Circuit,
similar cases
not
“A.
in this
you
City Atlanta,
see
open, as
Holmes
know. Neither
v.
350 U.S.
879,
141,
776;
76 S.Ct.
the downtown branch nor the
100 L.Ed.
Tate v.
(Negro)
Department
the Lee Street
branch.
of Conservation and De
838,
velopment,
352 U.S.
77 S.Ct.
1
“Q.
up until
Then
such time was
56; City
Petersburg
L.Ed.2d
of St.
Al
v.
it was maintained?
closed
sup, 5
lina, confidence U.S. S.Ct. sword; in violence and use of 2d 965. demanding impatience excessive for and court the trial In view of the fact overnight change; unreasonable obsti- findings deal- of fact made has not nacy refusing yield any point ing ar- particular incidents with the whatever; negative over-emphasis on the course, no rest, thus, and wrongs society”, and “the with little legal application principles thought good or no inher- is inappropriate facts, for us think it we people. in all demon- hatred, ent Neither street undertake deal with time to this resulting strations in violence and injunctive relief appellants’ claim nor the calm decrees a court can suit. in the other that has been made emotions of side of those on either the cases The trial court consolidated long question, so as those emotions testimony permitting purpose prompted kept and alive hate blind and we of them to be considered in both good others, refuses to see the given testimony have considered thus wrongs actually do exist. It is wheth- cases. We need not consider both good regardless too citizens, late for as consolidated the cases have been so er begin color, emphasize those rules granting permit our relief good conduct which manners, result in suit, specifically this other courtesy, and a reasonable consideration injunction. Proper judicial administra- rights of sharp wrongs; bring and into requires first matter be tion this good focus conscience that is light passed upon the trial court. patriotic common to most American citi- us in the case here before of our decision It late, zens. say, not too I but time legal of, principles disposed we running out. When all the demonstra- say appel- appropriate think it tions, mob actions and violence in the prompt to a decision on lants are entitled ended; streets have and when all of the hands of the matter at the this rendered, decrees have been court. problem solved; will not have been it will not be solved until judgment of the trial court themselves, spirit good in a will, un- and the versed case remanded with direc- price dertake solution. pay junction we tions that an in issue consistent prejudice, hate, obstinacy and opinion. violence is this high. They too nothing, are worth Having disposition accelerated the any -price paid for those unlawful and dep- this ease reason of the fact that distasteful elements is too much. We rights rivation of constitutional is con- democracy must realize that is not a appropriate tinuing, to, we consider it grab bag strong where the and swift are do, direct that the mandate long entitled the most. So con- we Court issue forthwith. protect tinue to and nurture the tree turbulence, strange we must eat its bitter fruit. This is not intended GEWIN, Judge (dissenting)^ Circuit preachment a idea, or the assertion of newa For the reasons hereinafter stated I plea but an earnest to embrace agree my again cannot spirit Brothers with a more fervent say courtesy, respect, past, responsi- ideals case. As tried say again may citizenship, justice, future, people bilities domestic blessings tranquility, liberty sides of troublesome both social *10 problems every- that seem so to all of now well known the United imminent bloody realize, fail, late, must before it If we ob- where is too States. entirely right neither will that side contest continue. nor en- stinate
659
73.07(3);
why
2B Barron &
8129
Holtzoff,
Vol.
I must
§
reasons
several
There are
Procedure,
&
ma-
Federal Practice
disagree
my
of
Brothers
with
contrary
(Rev. Wright)
1133, p.
The trial
opinion
jority:
(1)
§
relating
ac- court found as follows:
to class
law
the established
tions;
(2)
in favor
presumption
much
“We will next consider so
findings
has
of fact
necessary
deter-
evidence as
clearly erroneous
disregarded, the
been
proper class
mine whether this is a
followed,
ma-
rule
not been
has
to main-
action. For the Plaintiffs
from a
jority
facts
made a choice
tain this action under consideration
large
testimony
where
volume of
appear
more of
it must
one or
that
conflict; (3)
of law
rules
facts are
rights or
them had been denied the
injunc-
granting
respect
they
injuries
al-
suffered the
(4)
followed; and
tions
not been
have
lege
to and suffered
have been denied
the case is moot.
they purport the class which
represent. Upon
examination
to issue
The trial court refused
testimony
pages
65 ex-
1338
case,
stated
in this
because
a com-
find
there is
hibits we
plete
that
of all of
an examination
that
lack of evidence sufficient
testimony
testimony (1338 pages
any
one
sustain a contention that
exhibits):
65
ever been
more of the
have
Plaintiffs
complete
evi-
a
lack of
“There is
any
the facil-
denied
the use
a conten-
sustain
dence sufficient to
complaint
to in the
ities referred
any
or more
tion that
plaintiffs
one
any
other
of their race or
because
use of
have
been denied
using
reason,
nor that when
any
to in
facilities referred
they
com-
have been
facilities
pelled
of their race
because
their
segregated
to use them on
reason,
any
nor that
other
any evidence
Nor
basis.
using
such facilities
when
any
one or more of the Plaintiffs
compelled
use them on
have been
arrested, threatened
ever
have
basis.”
utilizing
arrest or harassed
public
attempting
is fundamental
It
to utilize
libraries,
depots,
parks,
buses,
Amendment
cannot enforce Fourteenth
bus
rights
stations, taxicabs,
in a class action if
for others
theatres
train
prove
places
amusement
have failed
rights
other
Albany.
denied.
individuals have been
There
four
Bailey Patterson,
31, 82
369 U.S.
S.Ct.
never
v.
Two
them
testi-
Plaintiffs.
512;
concerning
during
Atchison
McCabe v.
7 L.Ed.2d
matter
fied
Ry. Co.,
151, 35
235 U.S.
S.Ct.
trial. The testi-
T. & S. F.
69,
the course
mony
169;
testify
Brown
Board of
59
v.
two who did
L.Ed.
20;
Trustees,
5th,
187 F.2d
Kan-
above indi-
C.A.
deficient
Williams,
al.,
City, Mo.,
et
et al. v.
The Court finds
cated.
sas
47;
Thomp-
8th,
F.2d
Clark v.
been denied the
C.A.
Plaintiffs
(D.C.S.D.Miss.
injuries
F.Supp.
rights
son,
suffered the
nor
1962)
complaint.
661 Trial case. depots, this court in Brown buses, train sta libraries, bus traditionally very City dis broad courts in the tions, taxicabs theatres granting injunctions. originally cretion as to Albany. docket This case was ap Motors Mack, also See Inc. v. General of the a motion in this Court ed 886; Corp., Miami pending appeal, 7 260 injunction Cir. F.2d pellants an for Savings Cal argued, Beach Asso. v. actually Fed. & Loan submitted but it was lender, 256 for Cir. F.2d motion The merits. heard however, appeal, pending forthrightly Counsel "brought number the court before argument all of in oral that admitted relating of the status affidavits relating segregation the ordinances Al mentioned various facilities library repealed; had had been that the argu Georgia, bany, of oral at the time desegregated; parks been that certain all ordinances admitted that ment. It is swimming pool facilities which segrega Albany requiring City of of the segregated, heretofore been had been mentioned have been tion of the facilities sold; company closed and the bus justify repealed. unreasonable to It is out about which injunction on of an the issuance business, requiring ordinance but the ground majority asserted repealed; on buses been repeal con of the ordinances effect that depot problem no exists as the bus they may proof be re-enact stitutes station; or train and that ordinances There evidence in the record ed. no lating segregation in theatres showing part intention on the repealed. have been The case taxicabs Georgia, Albany, re authorities Gilmore, City Montgomery segregation ordinances. As stated enact majority, F.2d cited Brown, supra: this court authority by the is no for the action taken majority support in this case. of its injunction requiring detail- “Such citing City position in of Mont- supervision over ed continuous gomery case, opinion of the District political of a subdivision the conduct case, F.Supp. in the Court same congenial equitable prin- is not By opinion, cited. reference to that ciples practices and will not it will be seen that the ordinance there granted.” usually be repealed. not been The under attack had Injunctions sparingly subject parks should be issued to the de- had been closed times; greater City open at but caution and at termination of the them political care should be exercised where moment while ordi- City pointed subdivisions involved as out nance still remained the law the by Negro groups words, policy well as white “Q. easions In otber and, course, we turn down the use lessee determine wheth- is to let the applications segregated or the use of the au- will be or inte- er the affair occasions; done, grated, hut ditorium on it’s is that it? integregation segrega- policy City. on the basis “A. I know of no tion, practice but it’s because we fol- think That’s been the that’s been organization trying lowed, yes.” to use it would do any possible opinion Negroes (c) more harm to than asserts “ * * * good merely that could be served. were arrested they because present in the bus station’s * ** formerly per- asked the Man- reserved white areas presence ager morning, completely ignores in the one sons.” This assertion Commissioners, police or two of the officer had refresh the fact recent- my person vicinity goes ly how recollection as to killed getting auditorium; temper about the use of the of the bus station. pointed place and it at out time that time and did not organization group using delay it deter- for debate on the niceties tolerate mines whether will law. Police officers had in- of Constitutional you quick tegrated, if that’s mean? act in order what to act and to avoid and bloodshed. violence *13 Montgomery. is not Such the case Petitioner, MAHURIN, Clarence here. my opinion, raised all of the issues NASH, E. V. Warden, appeal on this Missouri have now become moot. State Penitentiary, Respondent. There is no evidence the record which leads to a No. conclusion that there is probability such conditions will come United States Appeals Court of again. pointed about As out the Su- Eighth Circuit. preme Court in United v. W. T. States Sept. 3, 1963. Co., al., Grant et 629, U.S. 73 S.Ct. Rehearing Sept. 20,1963. Denied involving L.Ed. in a case situation, different rule is follows: moving party satisfy
“But the must the court relief is needed. The
necessary determination is cognizable there exists some dan- ger violation, of recurrent some- thing possibility more than the mere keep
which serves to the case alive.” (Emphasis added.) Flory, recent case Clark v. 4 Cir. directly point. 237 F.2d
It was there held: “ * * * in view of the fact park had been closed act of legislature, there was no basis
for the issuance of an regard its use. Under such
circumstances, the case had become proper.”
moot and its dismissal was justification requiring injunc-
As action,
tive counsel for the duty assert that require the state has a
private operate any type individuals who facility desegre- used gate facility by means affirmative part action on the of the state. When asked if such idea awas one, readily counsel new admitted that new;
the idea is but referred to a New provides pen- York statute which for a alty imposed private to be individuals segregation. practice
who Even if such
a statute could be considered constitu-
tional, is not the function of the legislate. segrega- Voluntary
courts to legally permissible; JOHNSEN, Judge, Before tion and'. law Chief Judge. require compulsory integration. MATTHES, Circuit does not on the Based facts now known PER CURIAM. court, stated, and for the reasons judgment Petitioner, prisoner,, would affirm a Missouri lower state court. seeks to have us review District.