WALTER E. HOFFMAN, District Judge.
In this class action plaintiffs seek a declaration of their rights and injunctive relief to restrain the enforcement of § 18-327 and § 18-328 of the Code of Virginia, 1950. The language of the two statutes appears in the footnote
The facts may be briefly stated. The four plaintiffs are citizens, residents and taxpayers of the City of Norfolk and State of Virginia. Three of the plaintiffs are Negroes. One (Abbot) is a white person.
Defendants admit that, under color of law, policy, custom and usage, and especially by virtue of § 18-327 of the Code of Virginia, 1950, they have segregated, and required the segregation of, persons by race in all public gatherings held in the Arena and Theatre for a period of years, and that they are now requiring such segregation. They further state that they will continue such compliance with the state law. They insist, however, that plaintiffs and the class they represent have not suffered, nor will they in the future suffer, irreparable harm, damage and injury.
From the allegations of the complaint which, for the purposes herein stated we accept as true, the four plaintiffs purchased, on December 15, 1958, tickets allowing them to attend a function being held at the Arena. They took the seats designated by the purchased tickets. Within a matter of minutes the plaintiffs
The defendants have filed a motion to dismiss alleging, in substance, that a three-judge district court should not exercise jurisdiction for (1) the action is to restrain the enforcement of certain state criminal statutes, (2) this is not a case involving clear and imminent irreparable injury which would justify the interference by a federal court in the exercise of discretionary equity powers, (3) no actual controversy exists, and (4) the state courts should initially be given an opportunity to pass upon the validity of the controverted statutes in light of the many decisions pronounced since Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, and other related cases.
The request for an injunction restraining the enforcement, operation or execution of a state statute is a prerequisite for action by a three-judge district court. 28 U.S.C.A. § 2281. As a corollary to such action, there must be shown that plaintiffs will sustain irreparable injury which is clear, imminent and substantial, unless relief is granted. We are not prepared to say at this time that the enforcement of mandatory segregated seating statutes at recreational functions is essentially of "immediate" interest so as to constitute irreparable injury requiring the interference by a federal court by way of injunction restraining the enforcement of criminal statutes enacted by the Commonwealth of Virginia. More especially is this true where it appears that plaintiffs have an appropriate remedy in the state court by way of declaratory judgment under §§ 8-578 to 8-585 of the Code of Virginia, 1950, in which parties are entitled to a declaration of rights
We are not unmindful of the decisions of federal courts in public school cases, the public bus transportation cases, and matters involving the outright denial to Negroes of entrance to, or admission in, public places owned, operated or leased by governmental authorities with funds provided by taxpayers, such as parks, golf courses, bathing beaches, etc. The public school cases furnish abundant evidence of irreparable injury. Similarly, the public transportation cases strike at the right to earn a means of livelihood
Indeed, it may be that this controversy would not call for a three-judge district court in any event, for, if the statutes are plainly unconstitutional and require no
For many years it has been an established principle of law that courts of the United States have no power to enjoin state officers from instituting criminal actions unless (1) it is absolutely necessary for protection of constitutional rights, and (2) extraordinary circumstances exist where the danger of irreparable loss is both great and immediate. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714; Fenner v. Boykin, 271 U.S. 240, 46 S.Ct. 492, 70 L.Ed. 927; Spielman Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed. 1322; Beal v. Missouri Pacific R. Corp., 312 U.S. 45, 61 S.Ct. 418, 85 L.Ed. 577; Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971; Watson v. Buck, 313 U.S. 387, 61 S.Ct. 962, 85 L.Ed. 1416; Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138.
It is argued that the doctrine pronounced in the foregoing cases has been impliedly overruled by later decisions involving public transportation in which federal court intervention was sought. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222; Browder v. Gayle, D.C., 142 F.Supp. 707, affirmed without opinion, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114; Morrison v. Davis, 5 Cir., 252 F.2d 102, certiorari denied 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1075. Our attention is also directed to Crown Kosher Super Market of Mass., Inc. v. Gallagher, D.C., 176 F.Supp. 466, in which it is said that a three-judge district court may not decline, as a matter of discretion, to take jurisdiction of an action to enjoin the operation of a state criminal statute resulting in the denial of civil rights of a citizen where state officials intend to enforce the statute unless and until its constitutionality has been finally adjudicated.
Plaintiffs rely upon the brief statement in N. A. A. C. P. v. Bennett, 360 U.S. 471, 79 S.Ct. 1192, 3 L.Ed.2d 1375, as authority for the proposition that a reference by a federal district court to a state court should not be automatically made where the validity of a state statute, challenged under the United States Constitution, is properly before a United States District Court. We do not believe that Bennett is applicable as the issue of irreparable damage was not considered —indeed, the district court apparently assumed that the danger of irreparable loss was both great and immediate.
Our attention is directed to the fact that the constitutionality of the statutes under attack is, of recent date, the subject of state court action. On January 13, 1958, the Circuit Court of Arlington County, Virginia, held that § 18-327 of the Code of Virginia, 1950, was unconstitutional.
We note in passing that the United States Supreme Court maintains the same right, and observes the same duty, to review a decision of the highest court of a state as it does in considering the actions of a federal court. It is equally the duty of a state court to protect the rights of its citizens arising under the Constitution of the United States. To require these plaintiffs to pursue their remedies in the state court on the issues here involved is, at best, a slight sacrifice which must yield to the principles of comity where irreparable damage is not clearly shown to be immediate.
We will deny defendants' motion to dismiss and retain the case upon the docket, postponing the exercise of jurisdiction to enable plaintiffs, should they be so advised, to institute an action in the state court for declaratory judgment, in which proceeding we assume that defendants will cooperate, to obtain a prompt decision of the merits if the case is properly presented. At the time of argument, and in the brief, defendants abandoned the contention that no actual controversy exists under the state of facts here presented; we assume that defendants will make a like concession in the state court. To appropriately test the constitutionality of the statutes in a civil court of Virginia, we see no necessity of plaintiffs being required to subject themselves to criminal process, but if the decision is grounded upon this point, we may then entertain a motion to exercise jurisdiction.
An order will be entered staying further proceedings herein for a period of sixty (60) days to enable the plaintiffs, and the class they represent, to institute an appropriate action in the state court. If no action is taken by the plaintiffs within said period of sixty (60) days, this cause will stand dismissed with costs
Counsel for defendants will prepare and present order.
"Every person, firm, institution or corporation operating, maintaining, keeping, conducting, sponsoring or permitting any public hall, theatre, opera house, motion picture show or any place of public entertainment or public assemblage which is attended by both white and colored persons shall separate the white race and the colored race and shall set apart and designate in each such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage certain seats therein to be occupied by white persons and a portion thereof, or certain seats therein, to be occupied by colored persons and any such person, firm, institution, or corporation that shall fail, refuse or neglect to comply with the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars for each offense."
"§ 18-328. Failure to take space assigned in pursuance of preceding section. —
"Any person who fails, while in any public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, to take and occupy the seat or other space assigned to them in pursuance of the provisions of the preceding section by the manager, usher or other person in charge of such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage or whose duty is to take up tickets or collect the admission from the guests therein, or who shall fail to obey the request of such manager, usher, or other person, as aforesaid, to change his seat from time to time as occasion requires, in order that the preceding section may be complied with, shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than ten dollars nor more than twenty-five dollars for each offense. Furthermore such person may be ejected from such public hall, theatre, opera house, motion picture show or other place of public entertainment or public assemblage by any manager, usher or ticket taker, or other person in charge of such public hall, theatre, opera house, motion picture show or place of public entertainment or public assemblage, or by a police officer or any other conservator of the peace, and if such person ejected shall have paid admission into such public hall, theatre, opera house, motion picture show or other place of public entertainment or public assemblage, he shall not be entitled to a return of any part of the same."
These statutes have existed for many years and are not the product of resistance efforts of recent date.