James Sharp, Jr. v. Mrs. May Lucky, Registrar of Voters, Ouachita Parish , 252 F.2d 910 ( 1958 )

TUTTLE, Circuit Judge.

This is an appeal from an order dismissing appellant’s suit for violation of his civil rights for want of jurisdiction and for failure to state a claim upon which relief can be granted.

The complaint alleges that Sharp, a Negro lawyer, went to the office of defendant, Mrs. Lucky, Registrar of Voters of Ouachita Parish, Louisiana, on legal business for his client, another Negro, Willie L. Tillman, who had been notified that his voter’s registration was challenged; that Mrs. Lucky told him that only white persons were waited on in her office, and that her assistant took care of all colored people in the police jury room; that Mrs. Lucky “refused to let plaintiff and his clients [sic] see his card and comply with her letter in her office soley [sic] because they are Negroes, and that she is at present segregating Negroes in office soley [sic] on the basis of their race”; that because of these acts of appellee, appellant’s client has lost his status as a voter in Ouachita Parish, all because plaintiff was prevented from representing his client solely because of his race, for which he seeks damages; defendant has violated the 14th and 15th Amendments of the Constitution of the United States in the arbitrary, capricious and discriminatory manner as hereinabove set out; that plaintiff and persons of the class they [sic] represent have been and are being refused the right to registrar [sic] and vote and/or answer correspondence from the registrar in her office solely because of their color and race.” The complaint alleged that it was a class action,¹ and sought the following relief: that “

“2. That after all legal delays and due proceedings had, that this Court render judgment herein in favor of plaintiff and against the defendant decreeing that the defendant has refused to permit plaintiff and the class he represent [sic] to register vote and answer, reply or adjust matters pertaining thereto in her office solely because of their color and race in violation of the Fourteenth (14th) and Fifteenth (15th) Amendments of the Constitution of the United States.

“3. That the defendant and her successors in office be ordered to cease, desist and refrain from arbitrarily and capriciously discriminating and segregating against plaintiff and any members of the class he represent [sic] and Negroes generally in her office solely because of their color and race.

“4. That a permanent injunction issue herein, after proper hearing, enjoining the defendant and her successors in office from segregating and discriminating and denying to Negroes the use of her office because of their color and race.

•X X -XXX*

“6. That plaintiff herein have judgment against the defendant in the sum of Twenty-Fice [sic] Thousand and no/100 ($25,000.00) Dollars, damages.

“7. That this Court will allow plaintiff his cost herein, and such further, other, additional relief as may appear to the Court to be just and equitable.”

The case was heard below on the defendant’s motion to dismiss, no answer having been made on the merits. The grounds urged for dismissal were: (1) That the court lacked jurisdiction over the subject matter; (2) The court lacked jurisdiction of the person; (3) The complaint failed to state a claim on which relief could be granted.

The suit must stand, if at all, upon a federally created right, for there is no diversity of citizenship. The applicable statutes, generally known as the Civil Rights Statutes, are 42 U.S.C.A. § 1981,² § 1983,³ and 28 U.S.C.A. § 1343.⁴ The applicable provision of the Constitution is § 1 of the Fourteenth Amendment.

The trial court, construing the complaint simply as a suit for damages for the interference with plaintiff’s right to practice law, determined that the prevention of such interference by state officials was not a violation of a civil right. In this connection the court cited several cases for the proposition that the right to practice law is not a light protected by the civil rights statutes. Whatever may have been thought to be the law with respect to this right formerly, it has now been authoritatively decided by the Supreme Court that “a state cannot exclude a person from the practice of law or from any other occupation in a manner or for reasons that contravene the Due Process or Equal Protection Clause of the Fourteenth Amendment. * * *" Schware v. Board of Bar Examiners, 353 U.S. 232, 238, 77 S.Ct. 752, 756, 1 L.Ed.2d 796. However, we do not believe the alleged interference here amounted to such interference with Sharp’s activities as would amount to “excluding” him from the practice of law. The alleged interference here with Sharp’s activities was directed to him as a member of the Negro public; if he accepted the restrictions, or special requirements, that Mrs. Lucky applied to all Negro registrants (according to the allegations of the complaint) plaintiff would not in any manner have been interfered with in serving his client.

This brings us then to this question: Does the complaint plainly set out a cause of action, that is, does it charge with sufficient clarity action by the defendant, in the operation of her office, which denies to the plaintiff, as a Negro, and to others of that race, solely on account of race, rights which are guaranteed them under the Constitution and laws of the United States?

We think it plain that this suit alleges that when Sharp and his client, Tillman, went to Mrs. Lucky’s office on business, for which her office existed and for which it was maintained by the State and Parish, she, in her official capacity, refused to deal with them “in her office” solely because they were Negroes, and sent them to another room in the courthouse. It is not necessary to make an extended statement in light of all of the related cases decided by this Court and the Supreme Court, to support our conclusion that such official conduct is not permissible. Having decided, as we have, that Harris County, Texas may not operate a segregated cafeteria, Der-rington v. Plummer, 5 Cir., 240 F.2d 922; that St. Petersburg, Florida may not operate a segregated swimming pool, City of St. Petersburg v. Alsup, 5 Cir., 238 F.2d 830; and the Supreme Court having decided that the City of Atlanta may not operate a segregated golf course, Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776, it is too plain for argument that Ouachita Parish, Louisiana may not, through its registrar of voters, operate a segregated registrar’s office.

Moreover, we think it quite clear that the complaint alleged a proper case for a class action. Since, as we have stated, this is not to be construed as a suit for interference with plaintiff Sharp’s rights as a lawyer, but as a Negro citizen, he may properly sue on behalf of all other Negro citizens, since they all have an identity of interest in having access to the public offices of the Parish on a non-segregated basis. Rule 23 F.R.C.P.; cf. City of St. Petersburg v. Alsup, supra; Orleans Parish School Board v. Bush, 5 Cir., 242 F.2d 156, certiorari denied 354 U.S. 921, 77 S.Ct. 1380, 1 L.Ed. 1436.

We do think it appropriate to state that appellant misconceives the effect of the alleged acts of defendant upon his right or duty to represent his client as to the measure of damages, if any, that he may be entitled to. There was no interference with plaintiff’s adequately serving his client if he had been willing to subject himself to the restraints that were applicable, according to his allegations, to all Negroes; his damages, therefore, would not be augmented by any failure of his to obtain the relief which he sought for his client. Any damages to which he might be entitled are those to which any member of the class he represents would be entitled, in light of the circumstances, by reason of the alleged illegal segregation applicable to all Negroes.

The judgment is reversed for further proceedings not inconsistent with this opinion.

CAMERON, Circuit Judge.

I dissent.

1 . Paragraph 3 of the Complaint follows:

“That this is a class action authorized by rule 23(a) of the rules of Civil Procedure [28 U.S.C.A.] for the District Courts of the United States. The rights involved are of common and general interest to the members of the class represented by plaintiff, namely, Negro citizens of the State of Louisiana, similarly situated, who are fully qualified electors under the constitution and laws of the United States and of the State of Louisiana. That members of this class are so numerous as to make it imprac-ticablo to bring them all before the Court and for this reason plaintiff prosecutes this action in his own behalf and in behalf of the class without specifical-. ly naming them in this petition.”

2 . “Equal rights under the law

“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and ex-actions of every kind, and to no other.” 42 U.S.C.A. § 1981.

3 . “Civil action for deprivation of rights

“Every person who, under the color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” 42 U.S.C.A. § 1983.

4 . “Civil rights

“The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

*****

“(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of- the United States.”

28 U.S.C.A. § 1343.