369 F.2d 795
SUNFLOWER COUNTY COLORED BAPTIST ASSOCIATION, Appellant,
TRUSTEES OF INDIANOLA MUNICIPAL SEPARATE SCHOOL DISTRICT, Appellee.
United States Court of Appeals Fifth Circuit.
December 1, 1966.
L. H. Rosenthal, Jackson, Miss., Smith, Waltzer, Peebles & Jones, Benjamin Smith, Bruce Waltzer, New Orleans, La., for appellant.
Oscar B. Townsend, Indianola, Miss., for appellee.
Before RIVES, GEWIN and GODBOLD, Circuit Judges.
GEWIN, Circuit Judge.
Eminent domain proceedings were brought in the Special Court of Eminent Domain for Sunflower County, Mississippi, Justice of the Peace, D. C. Wiggins, presiding, against the Sunflower County Colored Baptist Association, the City of Indianola, Mississippi, and Mable Lloyd Crawford, et al., owners of three separate tracts of land, by the Trustees of Indianola Municipal Separate School District in order to acquire land for schools and playground purposes. The tract of land owned by the Sunflower County Colored Baptist Association was being used by the Council of Federated Organizations, "COFO", one of the civil rights organizations engaged in integration activities in Mississippi, to conduct a freedom school which offered instruction to Negro children and adults on various subjects.
Although the condemnation suit was instituted against all three of the above owners, only the Association filed a removal petition in the United States District Court for the Northern District of Mississippi alleging jurisdiction under 28 U.S.C. § 1443 because under the condemnation proceeding in Mississippi courts, it will be denied a fair trial, equal protection of the laws and particularly will be denied its federal rights arising under 42 U.S.C. §§ 1981, 1982 and 1983.
The School District filed a motion to remand which was granted by the district court. We find that the allegations of jurisdictional facts are insufficient to meet the conditions of 28 U.S.C. § 1443 as set forth in State of Georgia v. Rachel, et al., 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966) but present a factual situation clearly controlled by City of Greenwood v. Peacock, et al., 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966) and therefore the judgment of the district court is affirmed.
The Association's right to a fair trial and equal protection of the laws and its rights under 42 U.S.C. § 1983 do not arise from legislation providing for specific civil rights in terms of racial equality and therefore such legislation cannot support a valid claim for removal under § 1443. State of Georgia v. Rachel, et al., supra, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925, at 933-934. Even though 42 U.S.C. §§ 1981 and 1982 qualify as racial equality legislation these statutes do not prohibit a condemnation suit by a Mississippi school district and they do not confer an absolute right on private citizens not to be subjected to eminent domain actions. City of Greenwood v. Peacock, et al., supra, 384 U.S. 780, 86 S.Ct. 1800, 16 L.Ed.2d at 955-956. Although the Court held in Peacock that 42 U.S.C.A. § 1981 did qualify under the phrase "any law providing for * * * equal civil rights" in Section 1443(1) it concluded:
"It is not enough to support removal under § 1443(1) to allege or show that the defendant's federal equal civil rights have been illegally and corruptly denied by state administrative officials in advance of trial, that the charges against the defendant are false, or that the defendant is unable to obtain a fair trial in a particular state court. The motives of the officers bringing the charges may be corrupt, but that does not show that the state trial court will find the defendant guilty if he is innocent, or that in any other manner the defendant will be `denied or cannot enforce in the courts' of the State any right under a federal law providing for equal civil rights. The civil rights removal statute does not require and does not permit the judges of the federal courts to put their brethren of the state judiciary on trial. Under § 1443(1), the vindication of the defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted by reason of the operation of a pervasive and explicit state or federal law that those rights will inevitably be denied by the very act of bringing the defendant to trial in the state court. State of Georgia v. Rachel, supra [384 U.S. 780, 16 L.Ed.2d 925, 86 S.Ct. 1783]; Strauder v. State of West Virginia, 100 U.S. 303, 25 L.Ed. 664." (86 S.Ct. p. 1812, 16 L.Ed.2d pp. 956-957)
Later in its opinion the Court clearly delineates the limited circumstances in which the rule announced in Rachel is applicable:
"And in Rachel we have concluded that removal to the federal court in the narrow circumstances there presented would not be a departure from the teaching of this Court's decisions, because the Civil Rights Act of 1964, in those narrow circumstances, `substitutes a right for a crime.' Hamm v. City of Rock Hill, 379 U.S. 306, 315, 85 S.Ct. 384, 13 L.Ed.2d 300, 307, 85 S.Ct. 384." (86 S.Ct. at p. 1814, 16 L.Ed.2d at p. 959)
Finally, the Association's claim that their federal civil rights will be denied must be based on the state constitution, a statute, municipal ordinance, rule of court or regulatory provisions binding on the court which expressly deny such federal rights. See State of Georgia v. Rachel, supra, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d at 940. No Mississippi statute, including the eminent domain statute, Mississippi Code Ann. § 2781, which confers on municipal separate school districts the power to acquire property for school purposes, or the Mississippi constitutional provision allowing the taking of property for public use, Art. 3, § 17, precisely conflicts and conclusively denies the federal rights of the Association. In addition, the Association's intimation and argument that at some point in the future there will be operated on the acquired property a racially segregated school system does not transform the eminent domain suit into a direct and immediate denial of the Association's federal rights. If such a denial does eventually come to pass, the remedy is clear. See Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) and the host of desegregation cases which followed including many in this Circuit. Appropriate remedies for claims of unfair proceedings, denial of equal protection and rights under § 1983 are indicated in City of Greenwood v. Peacock, supra, 384 U.S. 780, 86 S.Ct. 1800, 16 L.Ed.2d at 957.
The judgment is affirmed.