Opinion
No. 43369.
June 7, 1965.
1. Injunction — prohibiting the organizing and conducting of planned demonstrations — temporary injunction properly granted.
Evidence of imminent, perilous, and dangerous circumstances sustained decree granting temporary injunction.
2. Injunction — same — permanent injunction dissolved.
Court erred in making temporary injunction permanent where meanwhile emergency situation had substantially diminished and relative peace and quiet prevailed in city.
Headnotes as approved by Patterson, J.
APPEAL from the Chancery Court of Hinds County, S.V. ROBERTSON, JR., Chancellor.
Jack H. Young, Carsie A. Hall, R. Jess Brown, Jackson; Robert L. Carter, A. Morris, Patricia Harkins Zeserson, New York City; Frank D. Reeves, Washington, D.C., for appellants.
I. Appellant's conduct was in lawful exercise of the rights of free speech, assembly and petition, and did not constitute sufficient cause to justify the issuance of the instant injunction.
A. General welfare. Buchanan v. Warley, 245 U.S. 60; Cantwell v. Connecticut, 310 U.S. 296; DeJonge v. Oregon, 299 U.S. 353; Edwards v. South Carolina, 372 U.S. 229, 9 L.Ed.2d 697; Hague v. Committee of Industrial Organizations, 307 U.S. 496, 83 L.Ed. 1423, 59 S.Ct. 954; Kunz v. New York, 340 U.S. 268; National Assn. for Advancement of Colored People v. Button, 371 U.S. 415, 9 L.Ed.2d 405; Niemotko v. Maryland, 340 U.S. 268; Pierce v. Society of Sisters, 268 U.S. 510; Schenk v. United States, 249 U.S. 47; Sellers v. Johnson, 163 F.2d 877; Staub v. Baxley, 355 U.S. 313; Sweezey v. New Hampshire, 354 U.S. 234; United States v. Carolina Products, 304 U.S. 144, 82 L.Ed. 1235; Yick Wo v. Hopkins (1886), 118 U.S. 536.
B. The Anti-Trust Statute. Gano v. Delmas, 140 Miss. 323, 105 So. 535; Hughes v. Superior Court, State of Cal., 339 U.S. 460, 94 L.Ed. 985; Jackson v. Price, 140 Miss. 249, 105 So. 538; Martin v. Struthers, 319 U.S. 141; New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552; Ready-Mix Concrete Concrete Products Co. v. Perry, 239 Miss. 329, 123 So.2d 241; Sec. 542.01 et seq., F.S.A.; Sec. 20, Georgia Code Annotated; Secs. 51, 121-126, LSA.
C. Appellees have failed to establish the existence of a conspiracy. Apex Hosiery Co. v. Leader, 336 U.S. 460; Association of Bailey v. Masters Plumbers, 103 Tenn. 89, 52 S.W. 853; Douglas General Drivers v. Wamix, Inc., 156 Tex. 408[ 156 Tex. 408], 295 S.W.2d 873; Edwards v. South Carolina, supra; Fields v. South Carolina, 375 U.S. 44; Henry v. Rock Hill, 376 U.S. 776; Lineberger v. Colonial Ice Co., 220 N.C. 444, 17 S.E.2d 502; Mississippi Power Light Co. v. Town of Coldwater, 234 Miss. 615, 106 So.2d 375; National Assn. for Advancement of Colored People v. Alabama, 357 U.S. 449; Rice v. Asheville Ice Co., 204 N.C. 768, 169 S.E. 707.
II. The injunction is unconstitutional on its face, in that its proscription is so broad that it prohibits lawful as well as unlawful conduct; its language is in part so vague as to fail to give proper notice of the acts prohibited; these defects amount to a denial of rights guaranteed appellants by the Fourteenth Amendment to the United States Constitution. Buchanan v. Warley, supra; Cantwell v. Connecticut, supra; Communication Workers of America A.F.L.-C.I.O. Local 4372 v. National Labor Relations Board, 362 U.S. 479; Congress of Racial Equality v. Douglas, 318 F.2d 95; Connally v. General Construction Co., 269 U.S. 385; Eastern R.R. Presidents Conference v. Noar Motor Freezer, Inc., 365 U.S. 127; Edwards v. South Carolina, supra; Fields v. South Carolina, supra; Hamm v. City of Rock Hill, 33 Law Week 4079; Heart of Atlanta Motel v. United States, 35 Law Week 4059; Henry v. Rock Hill, supra; Hughes v. Superior Court of the State of California, supra; Kovac v. Cooper, 336 U.S. 77, 95; Kunz v. New York, supra; Lombard v. State of Louisiana, 373 U.S. 257; Milk Wagon Drivers v. Meadow Moor Dairies, 321 U.S. 287; Near v. Minnesota, 283 U.S. 697; Niemotko v. Maryland, supra; New Haven Railroad v. Interstate Commerce Comm., 200 U.S. 361; New Negro Alliance v. Sanitary Grocery Co., supra; People v. Barkel, 36 N.Y.S.2d 1011; People v. Kiernan, 26 N.Y.S.2d 291; Peterson v. City of Greenville, 373 U.S. 244; Plumbers Union v. Graham, 345 U.S. 192; Schneider v. Irvington, 308 U.S. 147, 84 L.Ed. 155, 60 S.Ct. 146; Teamsters Union v. Vogt, 354 U.S. 284; Thornhill v. Alabama, 310 U.S. 86, 84 L.Ed. 1093, 60 S.Ct. 736; United States v. Carolina Products, supra; United States v. Cohn Grocery Co., 255 U.S. 81; Watchtower Bible Tract Society v. Dougherty, 337 Pa. 286, 11 A.2d 147.
III. The issuance of the injunction in its present form and the earlier refusal to stay execution or to dissolve the temporary injunction constitute illegal official enforcement of a policy of racial segregation in the City of Jackson. Such state action is an abuse of process, violating both the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution. Bolling v. Sharpe, 347 U.S. 497; Buchanan v. Warley, supra; Congress of Racial Equality v. Douglas, supra; Edwards v. South Carolina, supra; Gayle v. Browder, 352 U.S. 903; Lombard v. State of Louisiana, supra; Monroe v. Pape, 365 U.S. 167; Peterson v. City of Greenville, supra; Screws v. United States, 325 U.S. 91; Sellers v. Johnson, supra; Shelly v. Kraemer, 334 U.S. 1.
IV. The appellant, National Association for Advancement of Colored People, named in this proceeding should have been dismissed as party defendant. Lightbourn v. Walsh, 97 App. Div. 187, 89 N.Y.S. 856; McCabe v. Goodfellow, 133 N.Y. 89; Martin v. Curran, 303 N.Y. 276; Niven v. Stickerman Staver (N.Y.), 12 John's 401; Ostron v. Green, 161 N.Y. 353; Schouth v. Alpine, 215 N.Y. 225; Sizer v. Daniel (N.Y.), 66 Barb. 426.
V. The Board of Trustees of Tougaloo Christian College and Dr. A.D. Beittel should be dismissed as party defendants and the preliminary injunction dissolved as to them. Gomillion v. Lightfoot, 364 U.S. 339; Hague v. Committee of Industrial Organizations, supra; Kunz v. New York, supra; Near v. Minnesota, supra; Ross v. Texas, 341 U.S. 918; Shepard v. Florida, 341 U.S. 50.
VI. The injunction is invalid because based upon statutes and ordinances unconstitutional on their face or unconstitutional in application.
VII. Admission of the testimony of the Mayor was prejudicial reversible error.
VIII. Disclosure of membership in the National Association for Advancement of Colored People cannot be compelled by a court without violation of First Amendment rights. Bates v. Little Rock, 361 U.S. 516; National Assn. for Advancement of Colored People v. Alabama, supra; National Assn. for Advancement of Colored People v. Louisiana, 366 U.S. 293.
E.W. Stennett, J.A. Travis, Jr., Robert G. Nichols, Jr., Thomas H. Watkins, Jackson, for appellee.
I. The City of Jackson was entitled to the injunctive relief granted by the lower court. City of Tupelo v. Walton, 237 Miss. 892, 116 So.2d 808; Paramount-Richards Theatres, Inc. v. City of Hattiesburg, 210 Miss. 271, 49 So.2d 574; State, Ex Rel. Rice v. Allen, 180 Miss. 659, 177 So. 763; Sec. 3374-133, Code 1942.
II. City ordinances requiring a permit to use the city sidewalks and streets for parades and similar public demonstrations are valid. Cox v. New Hampshire, 312 U.S. 569, 85 L.Ed. 1049, 61 S.Ct. 762; Hague v. Committee for Industrial Organization, 307 U.S. 496, 83 L.Ed. 1423, 59 S.Ct. 954; Poulos v. New Hampshire, 345 U.S. 395, 97 L.Ed. 1105, 73 S.Ct. 760; Schneider v. Irvington, 308 U.S. 147, 84 L.Ed. 155, 60 S.Ct. 146; Secs. 135, 136, Uniform Traffic Regulation Code of City of Jackson.
III. There is no legal right to picket or boycott for an illegal purpose even though such picketing or boycotting may be peaceful in nature. Hughes v. Superior Court, State of Cal., 339 U.S. 460, 94 L.Ed. 985; Southern Bus Lines v. Amalgamated Assn. of Street, Electric Railway and Motor Coach Employees, 205 Miss. 354, 38 So.2d 765; State v. Hasson Grocery Co., 177 Miss. 204, 170 So. 234; Thornhill v. Alabama, 310 U.S. 88, 84 L.Ed. 1093, 60 S.Ct. 736; Wagley v. Colonial Baking Co., 208 Miss. 815, 45 So.2d 717; Sec. 1088, Code 1942; 15 C.J.S., Conspiracy, 1101.
IV. Activities normally considered legal may become illegal as a part of organized demonstrations which threaten public peace, order and tranquility. Edwards v. South Carolina, 372 U.S. 229, 9 L.Ed.2d 697; Feiner v. New York, 340 U.S. 315, 95 L.Ed. 295; National Assn. for Advancement of Colored People v. Button, 371 U.S. 415, 9 L.Ed.2d 405; United States v. Carolina Products, 304 U.S. 144, 82 L.Ed. 1235; United States v. U.S. Klans (Ala.), 195 F. Supp. 897; United States v. W.T. Grant Co., 345 U.S. 629, 97 L.Ed. 1303.
(Hn 1) After a careful examination of the record in this case, we are of the opinion that the evidence sustains the decree of the chancery court in granting a temporary injunction against the defendant named in the original bill because of the imminent, perilous and dangerous circumstances revealed by the testimony. Paramount-Richards Theatres, Inc. v. City of Hattiesburg, 210 Miss. 271, 49 So.2d 574 (1950); Southern Bus Lines, Inc. v. Amalgamated Ass'n. of Street, Electric Railway Motor Coach Employees of America, 205 Miss. 354, 38 So.2d 765 (1949). We do not pass upon the lack of specificity in the temporary injunction, as the same was superseded by a permanent injunction of May 22, 1964.
(Hn 2) However, we are of the opinion that since the issuance of the temporary injunction on June 6, 1963, and the issuance of the permanent injunction on May 22, 1964, the emergency situation had substantially diminished and that relative peace and quiet prevailed in the city, as noted by the chancellor in his separate opinion and finding of fact. Under these improved circumstances, the exigency of the situation having passed, we hold that the injunction should not have been made permanent and the court erred in so doing.
The order of May 22, 1964, making the injunction permanent is reversed and the injunction is hereby dissolved.
All Justices concur.