Before BIGGS, Chief Judge, and GOODRICH and O'CONNELL, Circuit Judges.
The complaint in the instant case originally consisted of twenty-six counts and is unnecessarily long and prolix. Jurisdiction is based on R.S. Sections 1977, 1978, and 1979, §§ 41, 42 and 43 of Title 8 U.S.C.A.,*fn1 and on Section 41(12) of Title 28 U.S.C.A.*fn2 The plaintiffs allege that they were denied rights guaranteed to them by the Fourteenth Amendment and by Article IV, Section 2, clause 1, or the Constitution of the United States. In count 26 the plaintiffs seek an injunction restraining the defendants from denying to the plaintiffs or any of them rights guaranteed them by the Constitution on the ground of race or color. They ask damages in the other counts. The plaintiffs have abandoned on this appeal counts 17, 24 and 25. Counts 18 to 23 were amended and consolidated. The complaint was dismissed as not stating a cause of action.*fn3 The plaintiffs have appealed.
The following appears from the pertinent allegations. The corporate defendant, Rosecliff Realty Co., Inc. (Rosecliff), operated Palisade Amusement Park in the Boroughs of Fort Lee and Cliffside Park, New Jersey. The individual defendants, the Rosenthals and Halpin, were managers of the park. The individual defendant, Stengel, was the Chief of Police of the Borough of Fort Lee. The plaintiffs, Valle, Scott, Taylor and Cox, are Negroes. The plaintiffs Horowitz, Chase and Peck are white persons. The plaintiff Ravin was a newspaper reporter and his racial origin is not indicated nor is that of the plaintiffs, Robinson and Young. All the plaintiffs are citizens of the State of New York. Palisade Amusement Park is a "private" park; that is to say, it is not operated by the State of New Jersey or any governmental agency. The park was one, however, which admitted members of the public upon the payment of fees. The part contained a swimming pool and persons who were admitted to the park were admitted to the pool upon the payment of an additional fee.*fn4
The plaintiffs, both Negroes and white persons, were admitted to the park. They sought admission to the pool. It is alleged that admission was refused them on the ground that the party included Negroes. Valle was in possession of "a duly purchased ticket" to the pool as was Scott. Nonetheless they were not admitted. The defendant, Stengel, as Chief of Police of the Borough of Fort Lee, "aided and abetted" the corporate defendant and the managing defendants in refusing the plaintiffs admission to the pool and "aided and abetted" in the ejectment of the plaintiffs from the park, assaulting them and imprisoning them "falsely".
In every count relied on by the plaintiffs it is alleged that the defendant, Stengel, was the Chief of Police of the Borough of Fort Lee, and that his subordinate policemen were acting pursuant to his orders. In the consolidated and amended counts it is alleged that "* * * Stengel was the Chief of Police of the Borough of Fort Lee in the State of New Jersey and as such was an officer and agent and representative of the * * * Borough [of Fort Lee] and of the State of New Jersey, charged with the enforcement of the customs, usages, laws and statutes of the said State; and in all the events and actions herein set forth he was acting under color and pretense of law and was enforcing and applying the unlawful and discriminatory practices herein mentioned against Negroes in New Jersey and against the plaintiffs as citizens and residents of New York State, the laws of New Jersey and of the United States to the contrary notwithstanding."*fn5
We will endeavor first to classify the issues presented by the prolix complaint. The plaintiffs state in their brief:*fn6 "The gist of the complaint's various original and amended counts is that the plaintiffs were denied the right to make and enforce the same contracts which whites were allowed to make." This statement does not cover the pleading. The complaint as amended alleges (1) refusal to permit the plaintiffs to make contracts (i.e., to purchase tickets) for the use of the swimming pool, which other persons were permitted to make, on the ground that some of the plaintiffs were Negroes;*fn7 (2) refusal to honor contracts (i.e., swimming pool tickets, "duly purchased") because the persons tendering them and seeking admission to the pool were Negroes;*fn8 (3) assaults upon the plaintiffs, both Negroes and white persons, because the Negroes, accompanied by the white persons, were seeking admission to the pool,*fn9 and (4) false imprisonment.*fn10
It is asserted by the plaintiffs that grounds (1) and (2), supra, find support in R.S. Section 1977,*fn11 and in R.S. Section 1978,*fn12 and that the statutes cited are bottomed in turn on the equal protection of the laws clause of the Fourteenth Amendment and on Clause 1 of Section 2 of Article IV of the Constitution of the United States providing that "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." It would seem, though it is not clear from the briefs of the plaintiffs or from their oral argument, that points (3) and (4), supra, are also based by the plaintiffs on R.S. Sections 1977 and 1978.
The plaintiffs contend, first, that the complaint alleges that the defendants acted under color and pretense of law which is enough to give validity to their suit, and, second, that under Article IV, Section 2, clause 2 of the Constitution, Section 43 of Title 8 U.S.C.A., R.S. Section 1979, it is unnecessary to allege in the complaint that the defendants acted under color or pretense of law. The second ground asserted by the plaintiffs, however, is not in the case for it is alleged in the complaint in respect to every plaintiff that Stengel, the Chief of Police aided and abetted the managing defendants in consummating the acts of which the plaintiffs complain. We, therefore, will not discuss the second ground.
The argument on the first point is as follows: Stengel was Chief of Police of the Borough of Fort Lee and both he and his subordinate policemen acted in official capacities clothed with the authority of the State of New Jersey lawfully transmitted by it to the Borough of Fort Lee as a subordinate governing body; that the acts of Stengel and his subordinates in aiding and abetting the corporate defendant and the managing defendants in refusing to permit the plaintiffs to contract to use the pool, in denying the plaintiffs access to the pool when some of them had already contracted to use it, and in ejecting the plaintiffs from the park and assaulting and falsely imprisoning them or some of them, necessarily were acts done under color or pretense of law.
The plaintiffs particularize by asserting that by aiding and abetting the managing defendants and the corporate defendant, Stengel and his subordinates denied the plaintiffs the right to make and enforce contracts within the purview of R.S. Section 1977, and that the use of the swimming pool under a ticket of admission held by one of them, i.e., under a ticket "duly purchased", is the equivalent of a lease, however temporary, of the real and personal property constituting the pool within the purview of Section 1978; or is at least a holding*fn13 within the terms of the statute.
The trial court referring to the first*fn14 and second sections of the Fifth Civil Rights Act, Act of March 1, 1875, 18 Stat. 335, observed that these sections had been declared unconstitutional by the Supreme Court in the Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L. Ed. 835, and concluded that the plaintiffs had not stated a cause of action because the defendants had not acted under color of law. The court said, 75 F.Supp. at page 545, that "It cannot be seriously urged that the action of the defendants was 'under color of statute'", because their actions violated the laws of New Jersey, in particular R.S. 10:1-3, N.J.S.A., which provides that no proprietor of a place of public resort or amusement "* * * shall directly or indirectly refuse, withhold from, or deny to, any person any of the accommodations, advantages, facilities or privileges thereof, * * * on account of race, creed or color.", R.S. 10:1-6, N.J.S.A., providing substantial penalties for violation of the statute just quoted.*fn15 In short the court below held that a borough police officer could not act under color of law when he acted in violation of a state statute.
We think the decision of the court below must be reversed. The allegations of the complaint as amended and the inferences to be drawn therefrom, upon a motion to dismiss, must be taken most favorably to the plaintiffs. It is a fair inference to be drawn from the pleading that Stengel as Chief of Police of the Borough of Fort Lee and his subordinates were acting in an official capacity and purportedly pursuant to State law and that if Stengel had not been Chief of Police he would not have been called upon to act by his co-defendants and would not have acted. It is to be presumed on a motion to dismiss that an individual who is alleged to be the chief of police of a New Jersey borough is lawfully in office. A person who acts by virtue of an office conferred upon him under the authority of State law and purportedly pursuant to State law is acting under "color of law".*fn16 It is not alleged and we do not know, of course what law or statute of New Jersey Chief of Police Stengel was purportedly acting under when he subjected some of the plaintiffs to arrest and imprisonment. The provisions of R.S. 2:206-2, N.J.S.A., come immediately to mind as do those of R.S. 40:174-195, 196, N.J.S.A. These relate generally to arrests by police officers for minor breaches of the peace. On motion to dismiss, as here, the inferences are to be taken most strongly in the plaintiffs' favor and it is reasonable to infer that Stengel was acting pursuant to one of the statutes referred to in the previous sentence or under some similar act of the New Jersey Legislature. The pertinent facts must be developed at the trial.*fn17
That a person who acts by virtue of an office conferred on him under the authority of State law and purportedly pursuant to State law acts under "color of law" was decided by the Supreme Court in Screws v. United States, 325 U.S. 91, 111, 65 S. Ct. 1031, 1040, 89 L. Ed. 1495, 162 A.L.R. 1330, Mr. Justice Douglas saying, "It is clear that under 'color' of law means under 'pretense' of law. Thus acts of officers in the ambit of their personal pursuits are plainly excluded. Acts of officers who undertake to perform their official duties are included whether they hew to the line of their authority or overstep it." See United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 1043, 85 L. Ed. 1368, in which it was stated, "Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with authority of state law, is action taken 'under color of' state law." While the prosecutions in both the Screws and Classic cases were based on Section 20 of the Criminal Code, Section 52, 18 U.S.C., 1940 ed. [now 18 U.S.C.A.§ 242], this point is presently immaterial. Section 20 was Section 17 of the Second Civil Rights Act, Act of May 31, 1870, 16 Stat. 140. This is a criminal statute. The suit at bar is based on Section 1 of the Fourth Civil Rights Act, act of April 20, 1871, 17 Stat. 13, now R.S. Section 1979, which is the civil counterpart of Section 20 of the Criminal Code. As we said in Picking v. Pennsylvania R. Co., 3 Cir., 151 F.2d 240, 248, the decision of the Supreme Court in the Screws case gave virile meaning to the phrase "under color of any law." The fact that ...