Georgia v. Rachel Brief for Respondents
Public Court Documents
January 1, 1965
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Brief Collection, LDF Court Filings. Georgia v. Rachel Brief for Respondents, 1965. aa42d022-b39a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2a0f29d6-18c4-4736-bc2a-5ca0412d0652/georgia-v-rachel-brief-for-respondents. Accessed June 01, 2025.
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I n t h e
(Eimrt of % InttTft
October T er m , 1965
No. 147
G eorgia,
—y.—
Petitioner ,
T homas R ach el , et al.,
Respondents.
on w r it of certiorari to t h e u n ited states court of appeals
for t h e f if t h circuit
BRIEF FOR RESPONDENTS
D onald L. H ollow ell
H oward M oore, J r .
859% Hunter Street
Atlanta, Georgia 30314
J ack Green berg
J am es M. Na brit , I I I
M elvyn Zarr
10 Columbus Circle
New York, New York 10019
A n th on y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys fo r Respondents
I N D E X
Opinions Below .................................................................... 1
Jurisdiction .......................................................................... 1
Constitutional Provisions, Statutes and Rules In
volved ................................................................................... 2
Questions Presented............................................................ 9
Statement of the C ase ........................................................ 10
Summary of Argument..................................................... 13
Argument ................................................................................... 17
I. The Court of Appeals Did Not Lack Jurisdic
tion of the Appeal by Reason of Asserted Un
timeliness in Filing the Notice of Appeal....... 17
A. As Rule 37(a)(2) Has No Application to
Pre-Verdict Appeals, the Notice of Appeal
Was Timely F ile d ........................................... 18
B. The Court of Appeals Had Jurisdiction to
Review the Remand Order by Proceedings
in the Nature of Mandamus, as to Which
No Time Is Limited by R u le........................ 27
1. The Remand Order Is Reviewable by
Mandamus................................................... 27
2. The Court of Appeals Might Permissi
bly Entertain the Present Proceeding
as on Petition for Mandamus................ 32
PAGE
11
C. This Court May Review the Remand Or
der as on Original Petition for Mandamus 34
II. Defendants Criminally Prosecuted for Con
duct Protected by Title I I of the Civil Rights
Act of 1964 May Remove Their Prosecutions
Under 28 U. S. C. § 1443 Without Showing
That the State Criminal Statutes Underlying
Their Prosecutions Are Facially Unconstitu
PAGE
tional or the State Courts Unfair ...„................ 35
A. The Background of 28 U. S. C. § 1443 ........ 36
1. Legislative Background.......................... 36
2. Judicial Background................................ 73
B. The Construction of 28 U. S. C. § 1443 .... 87
1. The Court of Appeals Correctly Held
That Persons Prosecuted for Exercis
ing Their Right to Equal Public Ac
commodations Under the Civil Rights
Act of 1964 Are Thereby Denied and
Unable to Enforce Those Rights,
Within the Meaning of § 1443(1), Not
withstanding the Statutes Underlying
the Prosecutions Are Not Unconstitu
tional on Their Face and the State
Courts Are Not Alleged to Be Unfair 90
2. Persons Prosecuted for Exercising
Their Right to Equal Public Accom
modations Under the Civil Rights Act
of 1964 Are Thereby Prosecuted for
Ill
an Act Under Color of Authority De
rived from the Civil Rights Act, With
in the Meaning of § 1443(2) .................. 104
III . Defendants’ Removal Petition Was Not Defi
cient as a Pleading ............................................. 114
IV. The Court of Appeals’ Directions Governing
Hearing on Remand Were P rop er.................. 118
Conclusion.............................................................................. 119
Appendix
Motion for Stay Pending Appeal................................. la
Order and Judgment on R em itter............................ 4a
T able of Cases
Alabama v. Boynton, S. D. Ala., C. A. No. 3560-65,
April 16,1965 .................................................................... 26, 87
Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900),
dism’d, 22 S. Ct. 930 (1902)........................................... 41
Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark.
1963) 86
Arnold v. North Carolina, 376 U. S. 773 (1964) .......... 75
The Astorian, 57 F. 2d 85 (9th Cir. 1932) .................... 33
Babbitt v. Clark, 103 U. S. 606 (1880)............................ 30
Baggett v. Bullitt, 377 U. S. 360 (1964)........................ 98,112
Bankers Life & Cas. Co. v. Holland, 346 U. S. 379
(1953).................................................................................. 31
Bantam Books, Inc. v. Sullivan, 372 U. S. 58 (1963) .. 98
PAGE
IV
Birsch v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929) ..... 41
Blyew v. United States, 80 U. S. (13 Wall.) 581 (1871) 65
Bowles v. Strickland, 151 F. 2d 419 (5th Cir. 1945) .... 25
Brazier v. Cherry, 293 F . 2d 401 (5th Cir. 1961) ........ 71
Brown v. Cain, 56 F . Supp. 56 (E. D. Pa. 1944) ........ 41, 42
Brunei- v. United States, 343 U. S. 112 (1952) ............ 24
Bush v. Kentucky, 107 U. S. 110 (1883) ........................ 80, 82
California v. Chue Fan, 42 Fed. 865 (C. C. N. D. Cal.
1890) .................................................................................. 86
California v. Lamson, 12 F . Supp. 813 (N. D. Cal.
1935), petition for leave to appeal denied, 80 F. 2d
388 (Wilbur, Circuit Judge, 1935) .............................. 86
Carter v. Campbell, 285 F. 2d 68 (5th Cir. 1960) ....... 33
Castle v. Lewis, 254 Fed. 917 (8th Cir. 1918) .............. 41
City of Birmingham v. Croskey, 217 F. Supp. 947
(N. D. Ala. 1963) .............................................................. 86
City of Chester v. Anderson, 347 F. 2d 823 (3d Cir.
1965) ..................................................................................... 89
City of Clarksdale v. Gertge, 237 F. Supp. 213 (N. D.
Miss. 1964) ........................................................................ 85
Cobbledick v. United States, 309 U. S. 323 (1940) ..... 24
Cohens v. Virginia, 19 U. S. (6 Wheat.) 264 (1821) .. 39
Colorado v. Symes, 286 U. S. 510 (1932) ...................... 117
Cooper v. Alabama, 5th Cir., No. 22424, December 6,
1965 ......................................................................................... 87
Coppedge v. United States, 369 U. S. 438 (1962) ....... 32
Cox v. Louisiana, 348 F. 2d 750 (5th Cir. 1965) ........ 86
Cramp v. Board of Public Instruction, 368 U. S. 278
(1961) ....................................................................................... 97
Crump v. Hill, 104 F. 2d 36 (5th Cir. 1939) ................ 32
Cutting v. Bullerdick, 178 F. 2d 774 (9th Cir. 1949) .. 34
PAGE
V
Des Isles v. Evans, 225 F. 2d 235 (5th Cir. 1955) ..... 33
DiBella v. United States, 369 U. S. 121 (1962) .......... 24
Dickey v. United States, 332 F. 2d 773 (9th Cir. 1964) 33
Dilworth v. Riner, 343 F. 2d 226 (5th Cir. 1965) .... 96
Dombrowski v. Pfister, 380 U. S. 479 (1965) ............98,112
Edwards v. South Carolina, 372 U. S. 229 (1963) .... 97
Employers Reinsurance Corp. v. Bryant, 299 U. S.
374 (1937) .................... ................................................... 30
England v. Louisiana State Board of Medical E x
aminers, 375 U. S. 411 (1964) .....................................92, 111
Eubanks v. Louisiana, 356 U. S. 584 (1958) ................ 75
Ex parte Collett, 337 U. S. 55 (1949) ................ 25
Ex parte Fahey, 332 U. S. 258 (1947) ............... 30
Ex parte McCardle, 73 U. S. (6 Wall.) 318 (1868) .. 54
Ex parte Newman, 81 U. S. (14 Wall.) 152 (1871) .. 30
Ex parte Peru, 318 U. S. 578 (1943) ............................ 2, 34
Ex parte Tilden, 218 Fed. 920 (D. Ida. 1914) . 41
Ex parte United States, 287 U. S. 241 (1932) ... 35
Ex parte United States ex rel. Anderson, 67 F. Supp.
374 (S. D. Fla. 1946) ................................................... 42
Ex parte Warner, 21 F. 2d 542 (N. D. Okla. 1927) .... 41
Ex parte Wells, 29 Fed. Cas. 633 (No. 17368) (1878) 86
Farmer v. State, 161 So. 2d 159 (1964) .................... 97
Fay v. Noia, 372 U. S. 391 (1963) ................................ 54,91
Feiner v. New York, 340 U. S. 315 (1951) ................ 112
Fields v. South Carolina, 375 U. S. 44 (1963) ............ 97
Foman v. Davis, 371 U. S. 178 (1962) ........................ 33
Freedman v. Maryland, 380 U. S. 51 (1965) ................ 112
PAGE
VI
Galloway v. City of Columbus, 5th Cir., No. 22935,
November 24, 1965 ....................................................... 87
Gay v. Ruff, 292 U. S. 25 (1934) .................................. 30
Gibson v. Mississippi, 162 TJ. S. 565 (1896) ....79, 80, 81,102
Georgia v. Tuttle, 377 U. S. 987 (1964) ................12, 28, 32
Georgia Hardwood Lumber Co. v. Compania de
Navegacion Transmar, S.A., 323 TJ. S. 334 (1945) 32
Hadjipateras v. Pacifica, S.A., 290 F. 2d 697 (5th Cir.
1961) .................................................................................. 33
Hamm v. City of Rock Hill, 379 U. S. 306 (1964) ..12,13, 36,
88,103,116,118
Heflin v. United States, 358 U. S. 415 (1959) ............ 23, 34
Henry v. City of Rock Hill, 376 U. S. 776 (1964)........ 97
Hernandez v. Texas, 347 U. S. 475 (1954) ............ 75
Hill v. Pennsylvania, 183 F. Supp. 126 (W. D. Pa.
1960) ............................ -..................................................... 86
Hoadley v. San Francisco, 94 U. S. 4 (1876) ............ 25,30
Hughley v. City of Opelika, M. D. Ala., Cr. No. 2319E,
November 19, 1965 .......................................................... 87
Hull v. Jackson County Circuit Court, 138 F . 2d 820
(6th Cir. 1943) .................................................................. 85
Hulson v. Atchison, Topeka & Santa Fe Ry. Co., 289
F. 2d 726 (7th Cir. 1961) ............................................. 33
In re Fair, 100 Fed. 149 (C. C. D. Neb. 1900) ............ 41
In re Hohorst, 150 U. S. 653 (1893) ............................ 32
In re Kaminetsky, 234 F. Supp. 991 (E. D. N. T.
1964) 85
In re Leigh, 139 F. 2d 386 (D. C. Cir. 1943) .............. 33
In re Matthews, 122 Fed. 248 (E. D. Ky. 1902) ........ 42
In re Miller, 42 Fed. 307 (E. D. S. C. 1890) ............ 42
PAGE
V ll
In re Neagle, 135 U. S. 1 (1890) ................................ .41, 43, 54
In re Pennsylvania Co., 137 U. S. 451 (1890) ............ 30
In re Wright, M. D. Ala., Cr. No. 11739N, August
3, 1965 ............................................................................... 87
Insurance Co. v. Comstock, 85 U. S. (16 Wall.) 258
(1872) ................................................................................ 30
Kentucky v. Powers, 201 U. S. 1 (1906) ........60, 61, 82, 84,
85, 86, 89, 90,
92, 93, 95, 96, 98,
99,100,101,102
Knight v. State, 161 So. 2d 521 (1964) ........................ 97
La Buy v. Howes Leather Co., 352 U. S. 249 (1957) 29
Lefton v. City of Hattiesburg, 333 F. 2d 280 (5th Cir.
1964) ................................:.................... ............................. 71
Lima v. Lawler, 63 F. Supp. 446 (E. D. Ya. 1945) .... 41, 42
Local No. 438 v. Curry, 371 U. S. 542 (1963) ............ 28
Lott v. United States, 367 U. S. 421 (1961) ............ 23, 25
Louisiana v. Murphy, 173 F. Supp. 782 (W. D. La.
1959) ................................................................................... 86
Maryland v. Kurek, 233 F. Supp. 431 (D. Md. 1964) 85
Maryland v. Soper (No. 1), 270 U. S. 9 (1926) ....89,116,117
McClellan v. Carland, 217 U. S. 268 (1910) ................ 29
McMeans v. Mayor’s Court of Fort Deposit, M. D.
Ala., Cr. No. 11759N, September 30, 1965 .... 87
McNair v. City of Drew, 351 F. 2d 498 (5th Cir.
1965) .................................................................................. 86
McNeese v. Board of Education, 373 U. S. 668 (1963) 67,112
Mercantile National Bank v. Langdeau, 371 U. S. 555
(1963)
PAGE
28
V l l l
PAGE
Metropolitan Cas. Ins. Co. v. Stevens, 312 U. S. 563
(1941) ................................................................................. 77
Meyers v. United States, 116 F. 2d 601 (5th Cir.
1940) ........... 23
Missouri Pacific Ey. Co. v. Fitzgerald, 160 U. S. 556
(1896) ................................................................................. 30
Monroe v. Pape, 365 U. S. 167 (1961) ............................ 67,112
Murray v. Louisiana, 163 U. S. 101 (1896) ................ 79, 80
N.A.A.C.P. v. Button, 371 U. S. 415 (1963) ................ 97
Neal v. Delaware, 103 U. S. 370 (1881) .... .......77, 80, 81,82,
92,101,102
New Jersey v. Weinberger, 38 F . 2d 298 (D. N. J .
1930) ................................................................................... 86
New York v. Galamison, 342 F. 2d 255 (2d Cir.
1965) ...........................................33, 89,105,108,109,110, 111
Norris v. Alabama, 294 U. S. 587 (1935) .................... 75
North Carolina v. Alston, 227 F. Supp. 887 (M. D.
N. C. 1964) ........................................................................ 85
North Carolina v. Jackson, 135 F. Supp. 682 (M. D.
N. C. 1955) ........................................................................ 86
Nye v. United States, 313 U. S. 33 (1941) .................... 18,23
O’Neal v. United States, 272 F. 2d 412 (5th Cir. 1959) 33
Orr v. United States, 174 F. 2d 577 (2d Cir. 1949) 25
Parr v. United States, 351 U. S. 513 (1956) ................ 24
Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir.
1965) ................................................. 86,104,105,108,109, 111
People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y.
1841) ................................................................................... 42
Platt v. Minnesota Mining & Mfg. Co., 376 U. S. 240
(1964) ................................................................................ 29,31
Pritchard v. Smith, 289 F . 2d 153 (8th Cir. 1961) .... 71
IX
Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), re
hearing denied, 343 F. 2d 909 (5th Cir. 1965) ....... 1
Railroad Co. v. Wiswall, 90 U. S. (23 Wall.) 507
(1874) ................................................................... ............. 28, 30
Rand v. Arkansas, 191 F. Snpp. 20 (W. D. Ark. 1961) 86
Reconstruction Finance Corp. v. Prudence Securities
Advisory Group, 311 U. S. 579 (1941) ...................... 34
Reece v. Georgia, 350 U. S. 85 (1955) ............................ 75
Reed v. Madden, 87 F . 2d 846 (8th Cir. 1937) ............ 41
Robinson v. Florida, 345 F. 2d 133 (5th Cir. 1965) .... 86
Roche v. Evaporated Milk Assn., 319 U. S. 21 (1943) 31
Roth v. Bird, 239 F. 2d 257 (5th Cir. 1956) ................ 33
Schlagenhauf v. Holder, 379 U. S. 104 (1964) .... ....... 31
Schoen v. Mountain Producers Corp., 170 F. 2d 707
(3d Cir. 1948) .................................................................. 25
Scott v. Sandford, 60 U. S. (19 How.) 393 (1857) .... 56
Semel v. United States, 158 F. 2d 229 (5th Cir. 1946) 26
Smith v. California, 361 U. S. 147 (1959) .................... 97
Smith v. Mississippi, 162 U. S. 592 (1896) ................ 79,80
Snypp v. Ohio, 70 F . 2d 535 (6th Cir. 1934) ................ 86
Societe Internationale Pour Participations Indus-
trielles et Commerciales, S.A., v. McGrath, 180 F.
2d 406 (D. C. Cir. 1950) ............................................. 33
Strauder v. West Virginia, 100 U. S. 303 (1880) ....73, 78, 93,
94,100,103
Tennessee v. Davis, 100 U. S. 257 (1880) .................... 41
Texas v. Dorris, 165 F. Supp. 738 (S. D. Tex. 1958) .... 86
Thomas v. Mississippi, 380 U. S. 524 (1965) ................ 97
Thomas v. State, 160 So. 2d 657 (1964) .................... 97
PAGE
X
Townsend v. Sain, 372 U. S. 293 (1963) ....................92, 111
Turner v. Farmers’ Loan & Trust Co., 106 U. S. 552
(1882) ................................................................................. 30
United States v. Healy, 376 U. S. 75 (1964) ............ 23
United States v. Lipsett, 156 Fed. 65 (W. D. Mich.
1907) ................................................................................... 41
United States v. Rice, 327 U. S. 742 (1946) ................ 30
United States v. Roth, 208 F. 2d 467 (2d Cir. 1953) 26
United States v. Smith, 331 U. S. 469 (1947) ............ 29
United States v. Stromberg, 227 F. 2d 903 (5th Cir.
1955) ................................................................................... 33
United States v. Williams, 227 F . 2d 149 (4th Cir.
1955)..................................................................................... 26
United States v. Wood, 295 F. 2d 772 (5th Cir. 1961) 29
United States ex rel. Coy v. United States, 316 U. S.
342 (1942) .............................. 23
United States ex rel. Drury v. Lewis, 200 U. S. 1
(1906).................................................................................. 41
United States ex rel. Flynn v. Fuelhart, 106 Fed. 911
(C. C. W. D. Pa. 1901) ................................................... 41
United States Alkali Export Assn. v. United States,
325 U. S. 196 (1945) ......................................... 31
Van Dusen v. Barrack, 376 U. S. 612 (1964) ............ 31
Van Newkirk v. District Attorney, 213 F. Supp. 61
(E. D. N. Y. 1963) ................................................... 86
Virginia v. Rives, 100 U. S. 313 (1880) ....60, 61, 74, 76, 77,
78, 81, 82, 89, 90,
92, 93, 95, 96, 98,
99,100,101,102,103
PAGE
X I
PAGE
Walker v. Georgia, 381 U. S. 355 (1965) .................... 103
Weehsler v. County of Gadsden, 351 F. 2d 311 (5th
Cir. 1965) .......................................................................... 86
West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904) 41
Williams v. Mississippi, 170 IT. S. 213 (1898) ............ 80
Con stitutional and S tatutoky P rovisions
IT. S. Const., Art. VI, el. 2 ..................... -........................... 2
IT. S. Const., Amend. X I I I ........................................... - 62,70
IT. S. Const., Amend. X IV ...................... ..........2, 66, 67, 70, 77
IT. S. Const., Amend. X V .............................................66, 70, 77
18 U. S. C. §242 (1964) ..................................................... 57
18 U. S. C. §1404 (1964) ................................................. 22, 24
18 IT. S. C. §3731 (1964) ................................................. 22, 26
18 IT. S. C. §3771 (1964) ................................................... 19
18 IT. S. C. §3772 (1964) ................................................... 18
28IT.S. C. §1257 (1964) ..................................................... 91
28 U. S. C. §1291 (1964) ................................................... 26,29
28 IT. S. C. §1331 (1964) ................................ 69
28 U. S. C. §1343(3) (1964) ......................................... 68
28 U. S. C. §1441 (1964) ........................................... 37,69
28 IT. S. C. §1442(a) (1) (1964) .............................. 41,107
28 IT. S. C. §1443 (1964) ............2, 9,16, 24, 25, 28, 29, 35, 36,
55, 70, 87, 89, 99,117,118
28 U. S. C. §1443(1) (1964) ....... 11,13,14,15, 35, 60, 72, 73,
76, 78, 88, 89, 90,103,104,105,
107,108,110, 111, 114
28 U. S. C. §1443(2) (1964) ....11,13,15,57,60,73,88,89,
90,104,105,107,108,110,
111, 113,114
XU
28 U. S. C. §1444 (1964) ................................................. 37
28 U. S. C. §1446(a) (1964) .....................................2, 3, 89,117
28 U. S. C. §1446(c) (1964) ............................................. 74
28 U. S. C. §1446(e) (1964) ............................................. 17
28 U. S. C. §1447(d) (1964) .................................2, 3,12, 24, 28
28 U. S. C. §1651 (1964) ................................................. 2, 29, 34
28 IT. S. C. §2106 (1964)..................................................... 25,116
28 IT. S. C. §2107 (1964).................. 23
28 IT. S. C. §2241(c) (2) (1964) ........................... 41
28 U. S. C. §2251 (1964) ............................ 53
42 I '. S. C. §1981 (1964) ...................... 65
42 U. S. C. §1983 (1964) ................................................. 65, 68
42 U. S. C. §1988 (1964) ............ 71
42 U. S. C. §2000a (1964) ..... 2
42 IT. S. C. §2000a-2 (1964) ............................................. 2, 6
Eev. Stat. §641 (1875) .......................... ..64,69,70,73,74,77,
78, 85,106
Eev. Stat. §643 (1875) ...................................................... 106
Eev. Stat. §722 (1875) ...................................................... 71
Eev. Stat. §1977 (1875) ..................................................... 65
Eev. Stat. §1979 (1875) ...................... ............................... 65, 68
28 U. S. C. §74 (1940) ..................................................... 64, 70
28 U. S. C. §76 (1940) ..................................................... 117
28 IT. S. C. §230 (1940) ..................................................... 23
28 U. S. C. §1447(d) (1958) ................................ 25,27,30,73
Act of September 24, 1789, eh. 20, 1 Stat. 73 ............ 38
Act of September 24,1789, ch. 20, §11, 1 Stat. 7 8 ...... 38
Act of September 24, 1789, ch. 20, §12, 1 Stat. 7 9 ....... 39
Act of September 24,1789, ch. 20, §14, 1 Stat. 8 1 ....... 39
Act of February 13, 1801, ch. 4, §11, 2 Stat. 89, 92,
repealed by Act of March 8, 1802, ch. 8, 2 Stat. 132 38
PAGE
X l l l
Act of February 4, 1815, ch. 31, §8, 3 Stat. 198 ........ 40
Act of March 3, 1815, ch. 93, §6, 3 Stat. 233 ..... 40
Act of March 3, 1817, ch. 109, §2, 3 Stat. 396 ............ 40
Act of March 2, 1833, ch. 57, §1, 4 Stat. 632 . 40
Act of March 2, 1833, eh. 57, §2, 4 Stat. 632 . 40
Act of March 2, 1833, ch. 57, §3, 4 Stat. 633 . 40
Act of March 2, 1833, ch. 57, §5, 4 Stat. 634 . 40
Act of March 2, 1833, ch. 57, §7, 4 Stat. 634 . 41
Act of August 29, 1842, ch. 257, 5 Stat. 539 ................ 42
Act of March 3, 1863, ch. 81, 12 Stat. 755 .................... 43, 74
Act of March 3, 1863, ch. 81, §5, 12 Stat. 755 ....... 43, 48,107
Act of March 7, 1864, ch. 20, §9, 13 Stat. 1 7 ................ 44
Act of June 30, 1864, ch. 173, §50, 13 Stat. 241 ............ 44
Act of April 9, 1866, ch. 31, §1, 14 Stat. 2 7 ................ 56
Act of April 9, 1866, ch. 31, §2, 14 Stat. 27 .......... 22, 57, 63
Act of April 9, 1866, ch. 31, §3, 14 Stat. 27 ....... 55, 56, 57
Act of May 11, 1866, ch. 80, 14 Stat. 4 6 ........................ 49
Act of May 11, 1866, ch. 80, §3, 14 Stat. 46 ................ 74
Act of July 13, 1866, ch. 184, 14 Stat. 9 8 .................... 44
Act of July 13,1866, §67,14 Stat. 171 .......... 44
Act of July 13,1866, §68,14 Stat. 172 ................... 44
Act of July 16, 1866, ch. 200, §14, 14 Stat. 176 ............ 45,46
Act of February 5, 1867, ch. 27, 14 Stat. 385 ................ 48
Act of February 5, 1867, ch. 28, 14 Stat. 385 ................ 53
Act of February 5, 1867, ch. 28, §1, 14 Stat. 386 ....... 53, 71
Act of May 31, 1870, ch. 114, 16 Stat. 1 4 0 ......... 66
Act of May 31, 1870, ch. 114, §1, 16 Stat. 1 4 0 .............. 66
Act of May 31, 1870, ch. 114, §§2-7, 16 Stat. 1 4 0 ........ 66
Act of May 31, 1870, ch. 114, §8, 16 Stat. 1 4 2 .............. 66
Act of May 31, 1870, ch. 114, §16, 16 Stat. 1 4 4 ............ 65
Act of May 31, 1870, ch. 114, §17, 16 Stat. 1 4 4 ............ 67
PAGE
XIV
Act of May 31, 1870, ch. 114, §18, 16 Stat. 1 4 4 ............ 67
Act of February 28, 1871, ch. 99, §16, 16 Stat. 438 .... 68
Act of April 20, 1871, ch. 22, 17 Stat. 13 ..... .............. 66, 68
Act of April 20, 1871, ch. 22, §1, 17 Stat. 1 3 ................ 65
Act of March 1,1875, ch. 114, 18 Stat. 335 .................... 68
Act of March 3, 1875, ch. 137, §§1-2, 18 Stat. 470 ........ 68
Act of March 3, 1887, ch. 373, §2, 24 Stat. 553, as
amended, Act of August 13, 1888, ch. 866, 25 Stat.
435 ....................................................................................... 82
Judicial Code of 1911, ch. 231, §31, 36 Stat. 1096........64, 70,
77,106
Judicial Code of 1911, ch. 231, §33, 36 Stat. 1097, as
amended by Act of August 23, 1916, ch. 399, 39
Stat. 532 ............................................................................ 117
Judicial Code of 1911, ch. 231, §297, 36 Stat. 1168 .... 70
Act of September 6, 1916, ch. 448, §2, 39 Stat. 726 .... 91
Act of February 24, 1933, ch. 119, §1, 47 Stat. 904 .... 18, 20
Act of March 8, 1934, ch. 49, 48 Stat. 399 .................... 18
Act of June 7, 1934, ch. 426, 48 Stat. 926 .................... 18
Act of June 25, 1936, ch. 804, 49 Stat. 1921 ...... 18
Act of June 29, 1940, ch. 445, 54 Stat. 688 .................... 19
Act of November 21,1941, ch. 492, 55 Stat. 779 ........ . 18,19
Act of June 25, 1948, ch. 645, 62 Stat. 846 ................18,19, 22
Act of May 24, 1949, ch. 139, §60, 63 Stat. 98 ............ 18,19
Act of May 10,1950, ch. 174, §1, 64 Stat. 158 ................ 19
Act of July 18, 1956, ch. 629, §201, 70 Stat. 573 ........ 24
Act of July 7, 1958, Pub. L. 85-508, §12, 72 Stat. 348 19
Act of March 18, 1959, Pub. L. 86-3, §14, 73 Stat. 11 19
PAGE
XV
Civil Eights Act of 1964, Pub. L. 88-352, §201, 78
Stat. 243 ...........................................3, 6,12,13,14, 95, 96,116
Civil Eights Act of 1964, Pub. L. 88-352, §203, 78
Stat. 244 ................................................. 7,12,13,14, 95, 97, 98
Civil Eights Act of 1964, Pub. L. 88-352, §901, 78
Stat. 266 ........................................................................ 3,12,14,
24, 27, 73
Ga. Code Ann., §26-3005 (1965 Cum. Supp.) ....... 7,11,115
Acts of Virginia, 1865-1866 (Act of Jan. 15, 1866) .... 62
E xiles of C ourt
PAGE
Fed. Eule Civ. Pro. 1 ......................................................... 23, 29
Fed. Eule Civ. Pro. 8(a) ................................................. 117
Fed. Eule Civ. Pro. 73(a) ................................................. 23
Fed. Eule Civ. Pro. 81(b) ............................................... 29
Fed. Eule Grim. Pro. 32(d) ............................................ 22
Fed. Eule Crim. Pro. 3 3 ............................. 22
Fed. Eule Crim. Pro. 3 4 .................................................. 22
Fed. Eule Crim. Pro. 35 ..... ............................................ 22
Fed. Eule Crim. Pro. 37(a)(1) ..................................... 20,24
Fed. Eule Crim. Pro. 37(a) (2) ........................ 7,13,17,18, 20,
22, 24, 25, 26
Fed. Eule Crim. Pro. 37 (b) ............................................ 24
Fed. Eule Crim. Pro. 37(c) ............................................ 24
Fed. Eule Crim. Pro. 38(a) ............................................ 24
Fed. Eule Crim. Pro. 38(b) ....................................... 24
Fed. Eule Crim. Pro. 38(c) ............................................ 24
Fed. Eule Crim. Pro. 39 .................................................. 24
Fed. Rule Crim. Pro. 54(b)(1) .......................... 17
Fed. Rule Crim. Pro. 57(b) ................................ 24
Fed. Rule Crim. Pro. 59 ....................................... 17
Orders Prescribing Rules of Court:
292 U. S. 661 ................................................................ 19
327 U. S. 825 ......................................................8,20,21,23
335 IT. S. 917 ................................................................ 21
335 IT. S. 949 ................................................................ 21
346 IT. S. 941 ................................................................ 21
350 U. S. 1019 .............................................................. 21, 22
Letter of Transmittal of Federal Criminal Rules
(1944), 327 IT. S. 823 ...................................................... 21
L egislative M aterials
H. Rep. No. 304, 80th Cong., 1st Sess. (1947) ........18,19, 23
H. Rep. No. 308, 80th Cong., 1st Sess. (1947) ............ 70
H. Rep. No. 352, 81st Cong., 1st Sess. (1949), 2 IT. S.
Code Cong. Serv., 81st Cong., 1st Sess. (1949) ..... 18,19
9 Cong. Deb. (1833) ......................................................... 42
Cong. Globe, 27th Cong., 2d Sess. (1942) .... 43
Cong. Globe, 37th Cong., 3d Sess. (Jan. 27, 1863) .... 44
Cong. Globe, 39th Cong., 1st Sess. (1866)....45, 46, 47, 48, 49,
50, 53, 57, 58, 61, 62,
63, 64, 65,108,112
110 Cong. Rec. (1964) ..................................................... 72,91
xvi
PAGE
X V II
Ot h e r S ources
ALI Study of the Division of Jurisdiction Between
State and Federal Courts, Commentary, General
Diversity Jurisdiction (Tent. Draft No. 1, 1963) .... 38
Amsterdam, Criminal Prosecutions Affecting Fed
erally Guaranteed Civil Rights: Federal Removal
and Habeas Corpus Jurisdiction to Abort State
Court Trial, 113 U. Pa. L. Rev. 793 (1965) ............ 54,89
3 Blackstone, Commentaries (6th ed., Dublin 1775) .. 71
2 Commager, Documents of American History (6th
ed. 1958) .................... 61
Dunning, Essays on the Civil War and Reconstruc
tion (1898) ........................................................................ 46
3 Elliot’s Debates (1836) ................................................. 39
1 Farrand, The Records of the Federal Convention
of 1787 (1911) .................................................................. 37
The Federalist, No. 80 (Hamilton) (Warner, Phila
delphia ed. 1818) ............................................................. 37, 39
1 Fleming, Documentary History of Reconstruction
(photo reprint 1960) ....................................................... 61
Frankfurter & Landis, The Business of the Supreme
Court (1927) .............. 70
Galphin, Judge Pye and the Hundred Sit-Ins, The
New Republic, May 30, 1964 ....................................... 103
Hart & Wechsler, The Federal Courts and the Fed
eral System (1953) ......... .................... .................... 36,37,38
PAGE
XV111
Lusky, Racial Discrimination and the Federal Law:
A Problem in Nullification, 63 Colum. L. Rev. 1163
(1963) ................................................................................ 28
McPherson, Political History of the United States
During the Period of Reconstruction (1871) ........ 61
Mishkin, The Federal “Question” in the District
Courts, 53 Colum. L. Rev. 157 (1953) ...................... 69
1 Morison & Commager, Growth of the American
Republic (4th ed. 1950) ............................................... 39, 40
1 Warren, The Supreme Court in United States His
tory (rev. ed. 1932) ....................................................... 39
Brief for Respondents Rachel et al., in Georgia v.
Tuttle, 377 U. S. 987 (1964) .................................. 12, 25,103
Petition for Certiorari, Anderson v. City of Chester,
0 . T. 1965, No. 443
PAGE
3 5
I n t h e
Supreme (Emtrt of % luttefc States
October T erm , 1965
No. 147
Georgia,
T homas R achel, et al.,
Petitioner ,
Respondents.
on w rit of certiorari to t h e u n ited states court of appeals
for t h e f if t h circuit
BRIEF FOR RESPONDENTS
Opinions Below
The opinions below are appropriately referred to in
Georgia’s Brief (Br. 1-2). The opinion supporting the
judgment here for review is reported as Rachel v. Georgia,
342 F. 2d 336 (5th Cir. 1965) (R. 20). Rehearing was
denied at 343 F. 2d 909 (5th Cir. 1965) (R. 51).
Jurisdiction
The grounds on which the jurisdiction of this Court rests
are appropriately stated in the first paragraph and the
first sentence of the second paragraph of the section titled
“Jurisdiction” in Georgia’s Brief (Br. 2). This Court might
2
also review the remand order of the district court (R. 5-9)
as on petition for an original writ of mandamus directed
to that court. 28 U. S. C. §1651 (1964); E x parte Peru,
318 U. S. 578 (1943). Should this Court deem the exercise
of the latter jurisdiction appropriate, respondents respect
fully request that the Court consider this Brief as a peti
tion for mandamus, together with a motion for leave to file
the petition. See pp. 34-35 infra.
Constitutional Provisions, Statutes
and Rules Involved
1. The case involves the Supremacy Clause, Art. Y I,
cl. 2, of the Constitution of the United States and the Four
teenth Amendment to the Constitution.
2. The following statutes and rules are also involved:
28 U. S. C. §1443 (1964):
§1443. Civil rights cases.
Any of the following civil actions or criminal prose
cutions, commenced in a State court may be removed
by the defendant to the district court of the United
States for the district and division embracing the place
wherein it is pending:
(1) Against any person who is denied or cannot en
force in the courts of such State a right under any
law providing for the equal civil rights of citizens of
the United States, or of all persons within the jurisdic
tion thereof;
(2) For any act under color of authority derived
from any law providing for equal rights, or for refus
3
ing to do any act on the ground that it would be in
consistent with such law.
28 U. S. C. §1446(a) (1964):
§1446. Procedure fo r removal.
(a) A defendant or defendants desiring to remove
any civil action or criminal prosecution from a State
court shall file in the district court of the United States
for the district and division within which such action
is pending a verified petition containing a short and
plain statement of the facts which entitle him or them
to removal together with a copy of all process, plead
ings and orders served upon him or them in such action.
28 U. S. C. §1447(d) (1964) (as amended by Civil Eights
Act of 1964, Pub. L. 88-352, §901, 78 Stat. 266):
§1447. Procedure a fter rem oval generally.
(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise, except that an order remanding a case
to the State court from which it was removed pursuant
to section 1443 of this title shall be reviewable by ap
peal or otherwise.
Civil Rights Act of 1964, Pub. L. 88-352, §§201, 203, 78 Stat.
243-244, 42 U. S. C. §§2000a, 2Q0Ga-2 (1964):
§2000a. Prohibition against discrimination or segrega
tion in places o f public accommodation.
(a) E qual access.
All persons shall be entitled to the full and equal
enjoyment of the goods, services, facilities, privileges,
4
advantages, and accommodations of any place of public
accommodation, as defined in this section, without dis
crimination or segregation on the ground of race, color,
religion, or national origin.
(b) Establishm ents affecting interstate commerce or
supported in their activities by State action as
places o f public accom modation; lodgings; facili
ties principally engaged in selling food fo r con
sumption on the prem ises; gasoline stations;
places o f exhibition or entertainment; other cov
ered establishments.
Each of the following establishments which serves
the public is a place of public accommodation within
the meaning of this subchapter if its operations af
fect commerce, or if discrimination or segregation by
it is supported by State action:
(1) any inn, hotel, motel, or other establishment
which provides lodging to transient guests, other
than an establishment located within a building
which contains not more than five rooms for rent
or hire and which is actually occupied by the pro
prietor of such establishment as his residence;
(2) any restaurant, cafeteria, lunchroom, lunch
counter, soda fountain, or other facility principally
engaged in selling food for consumption on the prem
ises, including, but not limited to, any such facility
located on the premises of any retail establishment;
or any gasoline station;
(3) any motion picture house, theater, concert hall,
sports arena, stadium or other place of exhibition
or entertainment; and
5
(4) any establishment (A) (i) which is physically
located within the premises of any establishment
otherwise covered by this subsection, or (ii) within
the premises of which is physically located any such
covered establishment, and (B) which holds itself
out as serving patrons of such covered establishment.
(c) Operations affecting com m erce; criteria; “com
m erce” defined.
The operations of an establishment affect commerce
within the meaning of this subchapter if (1) it is one
of the establishments described in paragraph (1) of
subsection (b) of this section; (2) in the case of an
establishment described in paragraph (2) of subsec
tion (b) of this section, it serves or offers to serve
interstate travelers of [sic] a substantial portion of
the food which it serves, or gasoline or other products
which it sells, has moved in commerce ; (3) in the case
of an establishment described in paragraph (3) of sub
section (b) of this section, it customarily presents films,
performances [,] athletic teams, exhibitions, or other
sources of entertainment which move in commerce;
and (4) in the case of an establishment described in
paragraph (4) of subsection (b) of this section, it is
physically located within the premises of, or there is
physically located within its premises, an establishment
the operations of which affect commerce within the
meaning of this subsection. For purposes of this sec
tion, “commerce” means travel, trade, traffic, commerce,
transportation, or communication among the several
States, or between the District of Columbia and any
State, or between any foreign country or any territory
or possession and any State or the District of Colum
6
bia, or between points in the same State but through
any other State or the District of Columbia or a for
eign country.
(d) Support by State action.
Discrimination or segregation by an establishment
is supported by State action within the meaning of this
subchapter if such discrimination or segregation (1) is
carried on under color of any law, statute, ordinance,
or regulation; or (2) is carried on under color of any
custom or usage required or enforced by officials of the
State or political subdivision thereof; or (3) is re
quired by action of the State or political subdivision
thereof.
(e) Private establishments.
The provisions of this subchapter shall not apply
to a private club or other establishment not in fact
open to the public, except to the extent that the facili
ties of such establishment are made available to the
customers or patrons of an establishment within the
scope of subsection (b) of this section. (Pub. L. 88-
352, title II, §201, July 2, 1964, 78 Stat. 243.)
§20Q0a~2. Prohibition against deprivation of, in terfer
ence with, and punishment fo r exercising rights and
privileges secured by section 2000a or 2000a-l o f this
title.
No person shall (a) withhold, deny, or attempt to
withhold or deny, or deprive or attempt to deprive,
any persons of any right or privilege secured by sec
tion 2000a or 2000a-l of this title, or (b) intimidate,
threaten, or coerce, or attempt to intimidate, threaten,
7
or coeree any person with the purpose of interfering
with any right or privilege secured by section 2000a or
2000a-l of this title, or (c) punish or attempt to punish
any person for exercising or attempting to exercise any
right or privilege secured by section 2000a or 2000a-l
of this title. (Pub. L. 88-352, title II, §203, July 2, 1964,
78 Stat. 244.)
Ga. Code Ann. §26-3005 (1965 Cum. Supp.):
26-3005. R efusal to leave prem ises o f another when
ordered to do so by owner or person in charge.—It
shall be unlawful for any person, who is on the prem
ises of another, to refuse and fail to leave said prem
ises when requested to do so by the owner or any
person in charge of said premises or the agent or em
ployee of such owner or such person in charge. Any
person violating the provisions of this section shall be
guilty of a misdemeanor and upon conviction thereof
shall be punished as for a misdemeanor. (Acts 1960,
p. 142.)
Fed. Rule Grim. Pro. 37 (a) (2):
(2) Time fo r Taking A ppeal. An appeal by a defen
dant may be taken within 10 days after entry of the
judgment or order appealed from, but if a motion for a
new trial or in arrest of judgment has been made with
in the 10-day period an appeal from a judgment of
conviction may be taken -within 10 days after entry of
the order denying the motion. When a court after trial
imposes sentence upon a defendant not represented
by counsel, the defendant shall be advised of Ms right
to appeal and if he so requests, the clerk shall prepare
8
and file forthwith a notice of appeal on behalf of the
defendant. An appeal by the government when au
thorized by statute may be taken within 30 days after
entry of the judgment or order appealed from.
Order of this Court, February 8, 1946, prescribing Rule
37(a)(2), 327 U. S. 825:
I t I s Ordered on this eighth day of February, 1946,
that the annexed Rules governing proceedings in
criminal cases after verdict, finding of guilty or not
guilty by the court, or plea of guilty, be prescribed
pursuant to the Act of February 24, 1933, c. 119, as
amended (47 Stat. 904; IT. S . Code, Title 18, §688)
for the District Courts of the United States, the United
States Circuit Courts of Appeals, the United States
Court of Appeals for the District of Columbia, and the
Supreme Court of the United States, and that said
Rules shall become effective on the twenty-first day of
March, 1946.
I t I s F u r th er Ordered that these Rules and the
Rules heretofore promulgated by order dated Decem
ber 26, 1944, governing proceedings prior to and in
cluding verdict, finding of guilty or not guilty by the
court, or plea of guilty, shall be consecutively num
bered as indicated and shall be known as the Federal
Rules of Criminal Procedure.
F ebruary 8, 1946.
9
Questions Presented
I. Whether the court of appeals had jurisdiction to
review an order of the district court remanding to the
appropriate state court state criminal cases removed pur
suant to 28 U. S. C. §1443 (1964) where notice of appeal
was tiled sixteen days after the date of the remand order.
II. Whether a removal petition which alleges that the
petitioners are being prosecuted on state criminal trespass
charges for their conduct in attempting to obtain equal
service without racial discrimination in restaurants covered
by the public accommodations title of the Civil Eights Act
of 1964 thereby states a case for removal under 28 U. S. C.
§1443 (1964).
I I I . Whether, as a matter of pleading, respondents’ re
moval petition sufficiently alleges that they are being
prosecuted on state criminal trespass charges for their
conduct in attempting to obtain equal service without racial
discrimination in restaurants covered by the public accom
modations title of the Civil Eights Act of 1964.
IV. Whether the court of appeals properly directed the
district court, in remanding the case to it for hearing on the
allegations of the removal petition, to assume jurisdiction
if it were proved that respondents had been arrested and
charged for seeking service which was denied them “for
racial reasons” at the places of public accommodation
named in their petition.
10
Statement of the Case
February 17, 1964, the twenty respondents (hereafter
called defendants as they were in the district court) filed
in the United States District Court for the Northern Dis
trict of Georgia their petition for removal of state criminal
trespass charges pending against them for trial in the
Superior Court of Fulton County, Georgia (R. 1-5). The
petition alleged that defendant Rachel and seven other de
fendants “were arrested on June 17,1963 when they sought
to obtain service, food, entertainment and comfort at Lebco,
Inc., d/b/a Leb’s, a privately owned restaurant opened to
the general public, 66 Lucid e Street, Atlanta, Fulton
County, Georgia” (R. 2). The remaining defendants were
arrested at Leb’s on other dates in May or June of 1963, or
at one of four other restaurants, cafeterias or hotels opened
to the general public on dates between March and June
of 1963 (R. 2-3). Each establishment where arrests were
made was identified in the petition by name and street
location in the city of Atlanta (R. 2-3), except that no
street location was recited for the Henry Grady Hotel,
which was alleged to be “built on real estate owned by the
State of Georgia but leased for a term of years to the
H. & G. Hotel Corporation” (R. 3). Several of the defen
dants were arrested in attempts to obtain service at more
than one of these establishments and/or on more than one
date (R. 2-3). “ [T]heir arrests were effected for the sole
purpose of aiding, abetting, and perpetuating customs, and
usages which have deep historical and psychological roots
in the mores and attitudes which exist within the City of
Atlanta with respect to serving and seating members of the
Negro race in such places of public accommodation and con
11
venience upon a racially discriminatory basis and upon
terms and conditions not imposed upon members of the so-
called white or Caucasian race. Members of the so-called
white or Caucasian race are similarly treated and dis
criminated against when accompanied by members of the
Negro race” (R. 1-2). Each defendant was subsequently
indicted under Georgia’s 1960 criminal trespass statute,
Ga. Code Ann. §26-3005 (1965 Cum. Supp.), penalizing re
fusal to leave premises on request of the owner (see p. 7
supra) (R. 3-4).
Prosecutions growing out of these arrests and indictments
were sought to be removed to the federal court under au
thority of 28 U. S. C. §§1443(1), (2) (1964), p. 2 supra
(R. 4), “to protect the rights guaranteed . . . under the
due process and equal protection clauses of [the] . . .
Fourteenth Amendment . . . and to protect the right of
free speech, association and assembly guaranteed by the
F irst Amendment . . . ” (R. 4). I t was alleged that the
defendants were prosecuted for acts under color of au
thority derived from the federal Constitution and laws (R.
4), and that they were denied and could not enforce in the
Georgia courts their rights under federal law providing for
equal rights, “in that, among other things, the State of
Georgia by statute, custom, usage, and practice supports
and maintains a policy of racial discrimination” (R. 4).
February 18,1964, District Judge Royd Sloan, sua sponte
and without hearing, remanded the prosecutions to the Su
perior Court of Fulton County (R. 5-9). March 5, 1964, de
fendants filed a notice of appeal from that order (R. 9).
March 12, they filed in the Court of Appeals for the Fifth
Circuit a motion for a stay of the remand order (App. la-3a,
in fra). The same day, Georgia filed a motion to dismiss
12
the appeal (R. 10-13). That date, March 12, 1964, the court
of appeals granted defendants’ motion for a stay and
postponed the disposition of Georgia’s motion to dismiss
until hearing on the merits (R. 13-14). Georgia there
upon moved this Court for leave to file a petition for pre
rogative writs, commanding the judges of the court of
appeals to vacate their stay order and proceed no further
with the appeal. June 22, 1964, the Court denied the mo
tion without opinion. Georgia v. Tuttle, 377 U. S. 987
(1964).*
July 2, 1964, the Civil Rights Act of 1964 was enacted
into law. Pub. L. 88-352, 78 Stat. 241. December 14, 1964,
this Court held in Hamm v. City o f Rock Hill, 379 U. S. 306
(1964), that sections 201 and 203 of that act, portions of the
public accommodations title, see pp. 3-7 supra, precluded
state criminal trespass conviction of sit-in demonstrators
who had refused to leave covered establishments from which
they were ordered for racial reasons, even though the sit-
ins occurred, and their prosecutions had been instituted,
prior to the effective date of the 1964 act. March 5,1965, the
court of appeals rendered its opinion and judgment in the
present case, reversing the remand order of the district
court (R. 20-36). Sustaining its appellate jurisdiction under
28 U. S. C. §1447(d) (1964), as amended by section 901 of
the Civil Rights Act of 1964, 78 stat. 266, the court held that
defendants’ removal petition adequately alleged that their
prosecutions were in violation of sections 201 and 203 of
the act as construed in Hamm. The court concluded that, if
these allegations were true, criminal prosecution of de
fendants in the Georgia courts denied them their rights
* For the events leading up to this prerogative writ proceeding,
see the documents in the Appendix to Brief for Respondents Rachel
et al., Georgia v. Tuttle, 377 U. S. 987 (1964), pp. 24-51.
13
under §§201 and 203, and made them unable to enforce these
rights, within the meaning of the civil rights removal stat
ute’s first subsection, 28 U. S. C. §1443(1). Without reach
ing any question of the removal petition’s sufficiency under
§1443(2), the court of appeals therefore remanded the case
to the district court for hearing, instructing the district
court to give the defendants “an opportunity to prove the
allegations in the removal petition as to the purpose of the
arrests and prosecutions, and in the event it is established
that the removal of the [defendants] . . . from the various
places of public accommodations was done for racial rea
sons, then under authority of the Hamm case,” to accept
removal jurisdiction and dismiss the prosecutions (R. 31-
32). Georgia’s petition for rehearing en banc (R. 37-49) was
denied April 19, 1965 (R. 51), and this Court granted
Georgia’s petition for certiorari October 11, 1965 (R. 52).
Summary of Argument
I.
The court of appeals did not lack jurisdiction to review
the remand order by reason of untimeliness in filing defen
dants’ notice of appeal. The notice was timely filed. The
ten-day appeal period limited by F ed . R u le Cr im , P ro.
37(a)(2) was prescribed under this Court’s post-verdict
criminal rule-making power and, by the terms of the order
prescribing it, has no application to appeals before verdict
in criminal cases.
Even were Criminal Rule 37(a)(2) applicable, the court
of appeals had jurisdiction to proceed as on petition for
mandamus, without limitation of time. The prerogative writ
14
is the traditional and accepted mode of review of remand
orders, and section 901 of the Civil Eights Act of 1964 pre
serves it as an alternative to appeal. The court of appeals
had the power to treat the present proceeding as before
it on petition for the writ. Should its appellate jurisdiction
be held wanting, the case ought to be remanded to that
court for its determination whether to entertain it as a
prerogative writ proceeding.
However, this Court need not decide any question of the
jurisdiction of the court of appeals in order to reach the
significant and pressing question of removability which the
case presents. The Court might review the remand order
of the district court as on an original petition for mandamus
to that court. The importance of expeditious construction
of the civil rights removal statute justifies the exercise
of the Court’s discretion to so proceed.
n.
Persons criminally prosecuted for attempts to obtain de
segregated restaurant service in the exercise of their equal
civil rights under the public accommodations title of the
Civil Eights Act of 1964 are thereby denied these rights,
and made unable to enforce them, within the meaning of 28
U. S. C. §1443(1). Pending prosecution constitutes intimida
tion and punishment forbidden by section 203 of the 1964
act and an impermissible repression of' the right to restau
rant service free of racial discrimination given by section
201. Federal removal jurisdiction is required to protect
this right from destruction by mesne process during the
delays incident to state court criminal proceedings. There
fore, persons prosecuted may sustain removal under
§1443(1) without inquiry into the questions whether the
1 5
state statute under which they are charged is unconstitu
tional on its face or whether the state courts will not
fairly entertain their federal defenses. The former inquiry
is required by the decisions of this Court only where fed
eral procedural rights, not where federal substantive rights,
are implicated in the state prosecution. The latter inquiry
is entirely impracticable, and is never required under
§1443(1).
Persons prosecuted for the exercise of their right to equal
public accommodations under the Civil Rights Act of 1964
are also thereby prosecuted for an act under color of au
thority derived from the 1964 legislation, within the mean
ing of 28 U. S. C. §1443(2). The legislative history of
§1443(2) and its context in the present Judicial Code in
dicate that its protection is available to private individuals,
not merely to federal officers and those acting under them.
As applied to private individuals, “color of authority” de
rived from civil rights law means the license to act which
these laws give, free of every sort of repression. In no
other sense do federal civil rights laws give authority
to private conduct.
Narrow construction of the civil rights removal juris
diction would defeat the great purpose of the Reconstruc
tion Congresses to extend effective federal judicial protec
tion to the civil liberties which the post-war Amendments
guaranteed. The liberties secured by these Amendments
and by federal civil rights legislation are perpetually in
jeopardy so long as state criminal proceedings may be
used to harass the individuals who dare exercise them.
The civil rights removal jurisdiction is a needed shield
against such harassment.
16
III.
Defendants’ removal petition was not deficient as a plead
ing. It sufficiently alleged each of the three elements re
quired for removal under a proper construction of 28
U. S. C. §1443: that defendants were (1) prosecuted for
criminal trespass for refusal to leave (2) places of public
accommodation covered by the Civil Eights Act of 1964, (3)
where they were ordered out and then arrested by reason
of racial discrimination.
IV.
The court of appeals properly directed the district court,
in remanding the case to it for hearing on the allegations
of the petition, to determine whether the trespass charges
against defendants arose from their refusals to leave places
of public accommodation which they were ordered to leave
for racial reasons. Such a showing brings defendants
within the protection of the public accommodations sec
tions of the Civil Eights Act of 1964, hence of the removal
statute. Georgia does not and cannot seriously contest
coverage of the restaurants in question under the 1964 act,
and the attack made on the foreclosing of other issues on
remand demonstrates only Georgia’s misconstruction of the
removal statute or the court of appeals’ opinion.
17
A R G U M E N T
I.
The Court of Appeals Did Not Lack Jurisdiction of the
Appeal by Reason of Asserted Untimeliness in Filing
the Notice of Appeal.
Because defendants’ notice of appeal, March 5, 1964 (R.
9), was filed more than ten days after the district court’s
order of February 18, 1964 (R. 5-9) remanding their prose
cutions to the state trial court, Georgia urges that the
court of appeals lacked jurisdiction to entertain any pro
ceeding by defendants for review of that order (Br. 13-29).
The argument is that these removed prosecutions are crimi
nal proceedings (Br. 21); that the Federal Rules of Crimi
nal Procedure apply to them by virtue of Rules 54(b)(1)
and 59 (Br. 21-28); that therefore the ten-day appeal period
of Rule 37(a)(2) governs the case (Br. 13-21); and that
failure to file a notice of appeal within the ten-day period is
fatal to the jurisdiction of the court of appeals (Br. 29).
Defendants have no controversy with any but the essential
part of this. They agree that their prosecution is criminal,
that the Federal Criminal Rules govern it at every stage
subsequent to the perfection of federal removal jurisdic
tion by filing and service of their removal petition (see 28
U. S. C. §1446(e) (1964)) on February 17, 1964 (R. 1-5),
and that any applicable appeal period fixed by those rules
goes to the jurisdiction of the circuit court. They share the
view of that court, however, that the ten-day period of
Rule 37(a)(2) does not apply to pre-verdict appeals in any
criminal case, removed or original, governed by the Crimi
nal Rules. And they assert, in any event, that the court
1 8
of appeals clearly had jurisdiction to review the remand
order by prerogative writ, unencumbered by the time
limited by any rule governing appeal.
A. As R u le 3 7 ( a ) ( 2 ) Hag No A pplication to Pre-V erd ict
A ppeals, th e Notice o f A ppeal W as T im ely F iled .
This Court’s power to make rules governing practice and
procedure in federal criminal proceedings derives from two
distinct sources. By the Act of February 24, 1933, ch. 119,
§1, 47 Stat. 904, amended by the Act of March 8, 1934, ch.
49, 48 Stat. 399, the Court was authorized to promulgate
“rules of practice and procedure with respect to any or all
proceedings after verdict, or finding of guilt by the court if
a jury has been waived, or plea of guilty, in criminal cases.
. . . ” That authority is presently codified, substantially
unchanged, in 18 U. S. C. §3772 (1964), as amended.1 Buies
1 The 1933 act authorized rule-making with respect to proceed
ings “after verdict.” Its 1934 amendment expanded the authority
to proceedings “after verdict, or finding of guilt by the court if
a jury has been waived, or plea of guilty,” apparently for the
reason that no distinction seemed justified in post-conviction rules
for jury-tried and jury-waived eases. See Nye v. United States,
313 U. S. 33, 44 (1941). The Nye case held that this language failed
to reach proceedings for criminal contempt. Congress responded
by the Act of November 21, 1941, ch. 492, 55 Stat. 779, extending
the 1933 authorization to criminal contempt eases. These three
statutes were the basis for present 18 U. S. C. §3772, enacted in
the criminal code revision of 1948. Act of June 25, 1948, eh. 645,
62 Stat. 846-847. (The revisers’ note also mentions the Act of
June 7, 1934, eh. 426, 48 Stat. 926, and the Act of June 25, 1936,
ch. 804, 49 Stat. 1921, which changed the names of the trial and
appellate courts in the District of Columbia; the 1948 revision
itself made some other changes in phraseology but none in sub
stance. See H. R ep . No. 304, 80th Cong., 1st Sess. A177-A178
(1947).) Section 3772 was amended by the Act of May 24, 1949,
ch. 139, §60, 63 Stat. 98, to correct the nomenclature of several
courts and a typographical error, see II. R ep . No. 352, 81st Cong.,
1st Sess. (1949), 2 U. S. Code Cong. S erv., 81st Cong., 1st Sess.,
1949, 1264; amendments in 1958 and 1959 merely accommodated
19
announced under it (which we may call in shorthand “post
verdict rules”) become effective without submission to Con
gress. By the Act of June 29, 1940, ch. 445, 54 Stat. 688,
the Court was authorized to prescribe “rules of pleading,
practice, and procedure with respect to any or all proceed
ings prior to and including verdict, or finding of guilty or
not guilty by the court if a jury has been waived, or plea
of guilty, in criminal cases . . . . ” This second authority is
presently codified, substantially unchanged, in 18 IT. S. C.
§3771 (1964), as amended.2 Rules announced under it
(which we may call in shorthand “pre-verdict rules”) be
come effective only upon submission to Congress.
The Court first exercised its post-verdict rule-making
authority by an order dated May 7, 1934 which explicitly
invoked the 1933-1934 legislation, see 292 IT. 8 . 661, in
adopting eleven rules “as the Rules of Practice and Pro
file admission to statehood of Alaska and Hawaii respectively. Act
of July 7, 1958, Pub. L. 85-508, §12(1), 72 Stat. 348: Act of
March 18, 1959, Pub. L. 86-3, §14 (h), 73 Stat. 11.
2 The Act of November 21, 1941, ch. 492, 55 Stat. 779, extended
the pre-verdict 1940 authorization, as well as the post-verdict 1933
authorization, to criminal contempt cases. See note 1 supra. The
1940 and 1941 acts were codified in 1948 as 18 U. S. C. §3771. Act
of June 25, 1948, ch. 645, 62 Stat. 846; see H. R ep . No. 304, 80th
Cong., 1st Sess. A-177 (1947). The Act of May 24, 1949, ch. 139,
§59, 63 Stat. 98, made some changes in judicial nomenclature and
authorized transmission of the rules to Congress by the Chief Jus
tice instead of by the Attorney General as theretofore, see H. R ep .
No. 352, 81st Cong., 1st Sess. (1949), 2 U. S. Code Cong. S erv.,
81st Cong., 1st Sess., 1949, 1264. The Act of May 10, 1950, ch. 174,
§1, 64 Stat. 158 altered the time at which the rules might be
submitted to Congress and the period after submission when they
were to take effect. Acts in 1958 and 1959 amended language in
the section to accommodate the admission to statehood of Alaska
and Hawaii respectively. Act of July 7, 1958, Pub. L. 85-508
§12 (k), 72 Stat. 348; Act of March 18, 1959, Pub. L. 86-3, §14(g )’
73 Stat. 11.
20
cedure in all proceedings after plea of guilty, verdict of
guilt by a jury or finding of guilt by the trial court where
a jury is waived, in criminal cases . . . . ” Ibid. Rule III,
governing appeals, prescribed that appeal should be “taken
within five (5) days after entry of judgment of conviction”
(except where a motion for new trial was pending), abol
ished petitions for allowance of appeal and citations, pro
vided that appeal should be taken by filing a notice of
appeal in duplicate in the district court and serving it on
the government, and described its contents. 292 U. S. 662-
663. In 1946, by order dated February 8, the Court pre
scribed Rules 32 to 39 of the new Federal Rules of Criminal
Procedure, effective March 21, 1946. 327 U. S. 821, 825.
It was thereby ordered that these “Rules governing pro
ceedings in criminal cases after verdict, finding of guilty
or not guilty by the court, or plea of guilty, be prescribed
pursuant to the Act of February 24,1933, c. 119, as amended
(47 Stat. 904, U. S. Code, Title 18, §688).” 327 U. S. 825.
Rule 37(a)(2) prescribed that appeal by a defendant should
be “taken within 10 days after entry of the judgment or
order appealed from” (unless a motion for new trial or in
arrest of judgment was pending), required the court to
advise an unrepresented defendant of his right to appeal
following sentence after trial and the clerk to prepare and
file a notice of appeal on request of such a defendant, and
prescribed that an appeal by the government when author
ized by statute should be “taken within 30 days after entry
of the judgment or order apealed from.” 327 U. S. 857-858.
Rule 37(a)(1) provided that appeal should be taken by
filing a notice of appeal in duplicate in the district court,
described its form and contents, abolished petitions for al
lowance of appeal, citations and assignments of error, and
directed the clerk of the district court to notify the adverse
21
party of the appeal and to forward the duplicate notice to
the appellate court with a statement of docket entries. 327
U. S. 857. The rule, which was never submitted to Congress,
is in substance present Rule 3 7 (a ); two subsequent amend
ments—both put into effect without submission to Con
gress—have not changed it in any respect material here.3
On March 21, 1946 Rules 1 to 31 and 40 to 60 of the Fed
eral Rules of Criminal Procedure also became effective.
These had been prescribed to govern “proceedings in crimi
nal cases prior to and including verdict, finding of guilty
or not guilty by the court, or plea of guilty . . . pursuant
to Act of June 29, 1940, ch. 445, 54 Stat. 688.” (Letter of
transmittal from Chief Justice Stone to Attorney General
Biddle, December 26, 1944, 327 IT. S. 823; see id. at 821.)
They became effective following submission to Congress
as required of pre-verdict rules by the 1940 act; subsequent
amendments to them have similarly been submitted.4
Thus the procedural history and explicit language of the
order promulgating Rule 37 make clear that it applies—
because it can only apply—to appeals “after verdict, find
ing of guilty or not guilty by the court, or plea of guilty.”
327 U. S. 825. To apply it to pre-verdict appeals would
attribute to this Court disregard of the specific command
of Congress that pre-verdict rules be submitted to its
scrutiny before they take effect. Georgia’s suggestion (Br.
8 By order dated December 27, 1948, effective January 1, 1949,
the Court substituted the language “court of appeals” for “circuit
court of appeals,” conforming the rule to the phraseology of the
Judicial Code revision of 1948. 335 U. S. 917-918. By order of
April 12, 1954, effective July 1, 1954, contemporaneous with its
adoption of Revised Rules of the Supreme Court, the Court rewrote
Criminal Rule 37 to provide that appeals and petitions for cer
tiorari to the Court were governed by its revised rules. 346 U. S.
941-942.
4 E.g., 335 U. S. 949; 350 IT. S. 1019.
22
16-17) that the codifiers’ cross-reference to Rule 37 in the
1948 Criminal Code, Act of June 25, 1948, ch. 645, 62 Stat.
845, satisfies the submission requirement is extravagant.
Apart from the consideration that this Court has since
amended the Rule without resubmission, 346 U. S. 941-942;
see note 3 supra, the cross-reference is palpably devoid of
substantive effect and—even were it given such effect—
could mean nothing more than acceptance of the rule in the
form in which the Court promulgated it : as a post-verdict
rule. Georgia also has the argument (Br. 17-19) that the
30-day limitation for government appeals in Rule 37(a)(2)
compels construction of that rule as applicable to pre-verdict
appeals. This would be the case only if all government
appeals allowed by statute were pre-verdict appeals, but of
course they are not. See 18 U. S. C. §3731 para. 7 (1964).
Rule 37(a)(2) is, as Georgia suggests, “a nullity as to ‘be
fore verdict’ appeals” by the government (Br. 18), where
such appeals are authorized by statute. See 18 U. S. C.
§§1404, 3731 para. 6 (1964). Its sole purpose is to assure
that the 30-day limitations prescribed by each of these
statutes, see the last sentence of §1404 and paragraph 8
of §3731, are not deprived of force by any implication
derived from Rule 37. See 18 U. S. C. §3772, para. 3 (1964).
Georgia’s contention (Br. 19) that the limitation by Rule
37(a)(2) of a period of ten days “after entry of the judg
ment or order appealed from”-—as contrasted with the
limitation by former Rule I I I of a period “after entry of
judgment of conviction,” 292 U. S. 662,—comports a pur
pose of Rule 37(a)(2) to reach some pre-verdict “order,”
exhibits the same vice of reasoning. The contention would
be tenable if no appealable “order” could be made in a
criminal case after verdict; but see Rules 32(d), 33, 34,
35. The specification of “order” in Rule 37(a)(2) is un
2 3
doubtedly designed principally to reach orders denying
motions for correction of sentence under Eule 35, see Heflin
v. United States, 358 IT. S. 415, 418 n. 7 (1959), in light of
the revelations of United States ex rel. Coy v. United
States, 316 TJ. S. 342 (1942), and M eyers v. United States,
116 F. 2d 601 (5th Cir. 1940).
Indeed, Georgia’s arguments in this aspect would hardly
merit debate5 but for the awkward circumstance that they
point up a casus omissus in the Criminal Eules.6 I f Eule
37(a) (2) is properly read as applicable only to post-verdict
appeals, there is no time limited by the Eules for pre
verdict appeals.7 The omission is of scant practical signifi
6 The order promulgating Rule 37 and its companion rules, con
taining an explicit restriction of their operation to post-verdict
proceedings, 327 U. S. 825, came five years after Nye v. United
States, 313 U. S. 33 (1941), had clearly established that such
explicit restrictions “describe the kinds of cases to which [the rules]
. . . are to be applied.” Id. at 44.
6 Obviously, foresight of every case which may arise in admin
istration of a system of criminal rules is impossible, and it has
previously occurred that lacunae have been discovered in the
Federal Rules. See United States ex rel. Coy v. United States, 316
U. S. 342 (1942) ; Lott v. United States, 367 U. S. 421 (1961) ;
United, States v. Healy, 376 U. S. 75 (1964). One cardinal virtue of
judicial rule-making is that such problems may be effectively cor
rected by the judiciary, whose concern they principally are, and
that correction may be made without unfair surprise to individual
litigants.
7 Defendants agree with Georgia (Br. 27) that neither F ed.
R ule Civ. P eo. 73(a) nor 28 TJ. S. C. §2107 (1964) can be applied
to limit the time for pre-verdict appeals in criminal cases. The
reach of Rule 73 is restricted to civil actions by F ed. Rule Civ. P ro.
1; and the similar restriction of §2107, in contrast to its predecessor,
28 TJ. S. C. §230 (1940), is not inadvertent. See IT. Rep . No. 308,
80th Cong., 1st Sess. A174 (1947). The exclusion of criminal
appeals from the latter section by reason of the revisers’ view that
Criminal Rule 37 governed such appeals, cannot of course be taken
to imply that the revisers or Congress thought Rule 37 applicable
to pre-verdict criminal appeals. They, like this Court in promul
2 4
cance, because the strong tradition against interlocutory
criminal appeals in federal practice disallows pre-verdict
appeal altogether except where expressly authorized by
statute, see DiBella v. United States, 369 U. S. 121 (1962);
Cobbledick v. United States, 309 IT. S. 323 (1940); P arr v.
United States, 351 IT. S. 513 (1956), and each of the few
extant statutory authorizations has a built-in limitations
period. See 18 U. S. C. $§1404, 3731 (1964).8 The sole
exception is the statute under which the present case
arises: 28 IT. S. C. §1447(d) (1964), as amended by §901 of
the Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 266,
to provide that “an order remanding a case to the State
court from which it was removed pursuant to section 1443
of [title 28] . . . shall be reviewable by appeal or otherwise.” 9
gating the Criminal Rules, had no occasion to direct their attention
to pre-verdict appeals—a rare form of proceeding whose timeliness
was otherwise regulated by statute. When Congress did subse
quently address the question—authorizing interlocutory appeals
from suppression orders in narcotics cases by the Act of July 18,
1956, ch. 629, §201, 70 Stat. 573, 18 IT. S. C. §1404 (1964)—it did
not assume the applicability of Criminal Rule 37, but included a
thirty-day limitation in the act.
8 It is true, of course, that if Rule 37(a)(2) does not govern
pre-verdict proceedings, neither do any of the provisions of Rules
32-39. This is not a matter of moment, however. Rules 32-36, the
second sentence of Rule 37 (a )(2 ), and Rule 38(a) are, by the
nature of their provisions, inapplicable at pre-verdict stages. Rules
37(b), (c) and 38(b) are merely cross-references to other rules
applicable of their own force. Rules 37 (a )(1 ), 38(c) and 39 are
chiefly housekeeping regulations; authority to proceed in the few
rare pre-verdict appeals with respect to the matters covered by
these rules is amply conveyed by Rule 57(b).
9 The present case was removed, remanded, and an appeal from
the remand order taken prior to the enactment of §901. The court
below held that the statute nevertheless governed the case (R.
20-21), under the ordinary principle that procedural legislation—
including legislation affecting the jurisdiction of particular courts
e.g., Bruner v. United States, 343 U. S. 112 (1952)—is applied to
2 5
Even in §1443 (civil rights removal) cases, absence of a
provision limiting the time for appeal of remand orders is
of little importance because, as indicated in the next section
of this brief, the traditional mode of review of remand
orders by prerogative writ which was revived by the “other
wise” clause of the 1964 act is available beyond any time
which might be limited for review by appeal. Whether re
view is sought by appeal or prerogative writ, the review
ing court does not lack power to refuse its process in eases
of abusive delay by the party seeking review.10 But if, in
any event, some specific limitation of time for pre-verdict
appeal should be thought desirable, “that problem and its
kindred ones, brought to the fore in this case, [should be
left] for resolution by the rule-making process,” L ott v.
United States, 367 U. S. 421, 425 (1961), rather than solved
in jury-rig fashion by a judicial decision expanding present
Rule 37(a)(2) beyond the plain scope of the order promul
gating it and in violation of a plain legislative restriction
litigation pending at the time of its passage. E.g., Ex parte Collett,
337 U. S. 55 (1949) ; Orr v. United States, 174 F. 2d 577 (2d Cir.
1949) ; Schoen v. Mountain Producers Corp., 170 F. 2d 707 (3d
Cir. 1948) ; Bowles v. Strickland, 151 F. 2d 419 (5th Cir. 1945) ;
and see Hoadley v. San Francisco, 94 U. S. 4 (1876). Georgia has
not challenged that ruling (see Petition for Certiorari 3-6 ; Br. 4-7),
and defendants see no need to labor the point or their alternative
contention, urged when this case was last here prior to the Civil
Rights Act of 1964, that former 28 U. S. C. §1447(d) (1958) did
not prohibit review of the remand order by the court of appeals.
See Brief for Respondents Rachel et al., in Georgia v. Tuttle, 377
U. S. 987 (1964), pp. 9-28, 32-44.
10 As indicated at p. 32 in fra , principles of laches would govern
the timeliness of a petition for mandamus to review a remand order.
Defendants see no reason why the same principles might not be
applied, under 28 U. S. C. §2106 (1964), to refuse relief on appeal
from a remand order in a case in which a criminal defendant
inexcusably delayed taking his appeal until after the commence
ment of (or, perhaps, until the eve of) his post-remand state-court
trial. No such ease is presented by this record.
2 6
on the pre-verdict rule-making power. This solution pro
posed by Georgia is at best a partial one, half-sighted and
unfair. Application of Eule 37(a) (2) to pre-verdict appeals
in civil rights removal cases would impose a ten-day limit
only on appeals “by a defendant.” I f a federal district
court accepted removal jurisdiction and dismissed a prose
cution—as was done, for example, in the Selma, Alabama
cases, on authority of the decision below in the present
case11-—any state appeal from such an order within the
jurisdiction given by 28 U. S. C. §1291 (1964) would re
main unlimited as to time.12 If the Civil Eights Act of
1964 has occasioned new sorts of interlocutory appeals, this
Court by rules duly submitted to Congress can and should
regulate them by prescriptions specifically and compre
hensively addressed to their particular nature. Defendants
submit that under the present rules there is no authority
for holding their appeal untimely.13
11 Alabama v. Boynton, S. D. Ala. C. A. No. 3560-65, decided
April 16, 1965.
12 The thirty-day limitation upon appeals “by the government”
in Rule 37(a)(2) could hardly be thought applicable to appeal
by a State in a removed criminal case. As the advisory committee
note on the rule indicates, that limitation was intended simply to
reflect the thirty-day rule of the Criminal Appeals Act, 18 U. S. C.
§3731 (1964).
13 United States v. Williams, 227 F. 2d 149 (4th Cir. 1955), cited
at Br. 18-19, is not persuasive. It is true that the Fourth Circuit,
there dismissing a government appeal noted more than thirty days
after dismissal of an indictment, assumed that Rule 37 governed
the ease. But the assumption is not supported by reasoning, and
the dismissal was in any event compelled by the thirty-day limi
tation of 18 U. S. C. §3731 (1964). Cf. United States v. Both,
208 F. 2d 467 (2d Cir. 1953). Semel v. United States, 158 F.
2d 229, 231 (5th Cir. 1946) (alternative ground), does apply
Rules 37 and 39 to a pre-verdict appeal, but, again, without con
sidered discussion.
27
B . T h e C ourt o f Appeals Had Ju risd ictio n to Review the
R em and O rd er by Proceedings in the N ature o f M an
dam us, as to W hich No T im e Is L im ited by R ule.
But even should this Court accept Georgia’s contention
that the court of appeals lacked power to entertain defen
dants’ appeal by reason of untimely filing, it could not
properly reverse the decision below. The court of appeals
plainly had jurisdiction to review the district court’s re
mand order by proceedings in the nature of mandamus in
stituted more than ten days after the order. (See subsec
tion (1) in fra.) Defendants in their brief below invoked
the discretion of that court to hear their case, in the event
appeal proved abortive, by the prerogative writ. The court
failed to consider such an exercise of discretion only be
cause it sustained the appeal. I f its holding on this latter
point is now upset, the case must be remanded to the court
of appeals for its determination, in light of its prior prac
tice in such matters (see subsection (2) in fra), whether it
will ignore technical imperfections in the presentation of
the proceeding and will entertain the attempted appeal
as on petition for mandamus.
1. T h e R em and O rder Is R eview able hy Mandam us.
The court below rested its competence to review the
remand order on 28 U. S. C. §1447(d), as amended by the
Civil Bights Act of 1964, §901, 78 Stat. 266. Georgia has
not challenged that ruling in this Court and it appears
clearly correct.14 Prior to the 1964 act, §1447(d) provided
that “An order remanding a case to the State court from
which it was removed is not reviewable on appeal or other
14 See note 9 supra.
28
wise.” 15 The 1964 act added the language: “except that
an order remanding a case to the State court from which
it was removed pursuant to section 1443 of this title shall
be reviewable by appeal or otherwise.” By this somewhat
blunderbuss language, Congress obviously intended princi
pally to make the exception for §1443 cases coextensive
with the general bar which §1447(d) imposes in all other
removal cases:16 the effect of the provision is to authorize
review by any fit legal mode. “Appeal” is specified:17 ac
15 There is very substantial reason to believe that this section
had no application to removed criminal cases, or to any cases
removed under 28 U. S. C. §1443. See Brief for Respondents
Rachel et al., in Georgia v. Tuttle, 377 U. S. 987 (1964), pp. 9-28,
32-44. Nevertheless, even those who held this belief recognized the
desirability of explicit congressional exception of §1443 cases
from the review bar. See Lusky, Racial Discrimination and the
Federal Law : A Problem in Nullification, 63 Colum. L. Rev. 1163,
1189-1190 (1963). Congress provided this explicit exception by the
1964 act.
16 Dissatisfied with the restrictive reading which the district
courts were giving §1443 on authority of “some old Supreme Court
decisions which appear to hold that removal is proper only if the
case involves a provision of a State constitution or a statute which
on its face denies equal civil rights,” 110 Cong. Rec . 6955 (April 6,
1964) (remarks of Senator Dodd), and convinced that such a
reading rendered the civil rights removal statute “practically use
less,” ibid., Congress sought to give this Court “an opportunity to
reexamine, in the light of existing conditions, the scope of the right
to remove in certain civil rights cases,” id. at 6551 (March 30,
1964) (remarks of Senator Humphrey) ; see also id. at 6564
(March 30, 1964) (remarks of Senator Kuchel). No attention was
paid in the debates to the mode of review.
17 It is hardly debatable that, following the 1964 act, remand
orders are reviewable by appeal. Such orders were held non-final,
hence not reviewable by writ of error in Railroad Co. v. Wiswall,
23 Wall. 507 (1874), note 19 infra. However, this Court’s recent
decisions in Local No. 438 v. Curry, 371 U. S. 542 (1963), and
Mercantile National Bank v. Langdeau, 371 U. S. 555 (1963), point
to broader modern concepts of finality, and the latter case particu
larly suggests that an order is “final” which sends a litigant for
trial into a forum where Congress has given him a specific right
2 9
cepted doctrine and history make clear that mandamus
is equally available under the “otherwise” clause.
Under the all writs section of the Judicial Code, 28
U. S. C. §1651 (1964), the courts of appeals have power
to issue orders in the nature of mandamus18 in aid of their
appellate jurisdiction. Since, pursuant to 28 U. S. C. §1291
(1964), the Court of Appeals for the Fifth Circuit could
review final decisions of the District Court for the Northern
District of Georgia in these removed criminal actions, Fifth
Circuit review “agreeable to the usages and principles of
law” (§1651) of interlocutory orders in the cases is al
lowable, United S tates v. Smith, 331 U. S. 469 (1947);
L a Buy v. Howes L eather Co., 352 U. S. 249 (1957); Platt
v. Minnesota Mining & Mfg. Co., 376 U. S. 240 (1964) (by
implication), particularly where the interlocutory order
prevents the cases from coming to final judgment in the
district court and thus defeats the normal appellate juris
diction of the court of appeals under §1291. McClellan v.
Carland, 217 U. S. 268 (1910).
“Applications for a mandamus to a subordinate court
are warranted by the principles and usages of law in cases
not to be tried. See also United States v. Wood, 295 F. 2d 772
(5th Cir. 1961). In view of the extended notion of finality ex
pressed in these decisions, and the explicit statutory specification
of “appeal” as a mode of review in the 1964 act, appeal from
remand orders in §1443 cases ought now be allowed under the
general jurisdictional grant of 28 U. S. C. §1291 (1964).
18 F ed. Rule Civ. P ro. 81(b), formally abolishing the writ of
mandamus and providing that all relief previously available by
mandamus may be obtained by appropriate action or motion, does
not affect the scope of relief in the nature of mandamus which a
federal appellate court may give. La Buy v. Howes Leather Go.,
352 U. S. 249 (1957) (by implication). Indeed, in view of F ed.
Rule Civ. Pro. 1, the application of Rule 81 to original proceedings
in the courts of appeals is questionable.
30
where the subordinate court, having jurisdiction of a case,
refuses to hear and decide the controversy. . . . ” E x parte
Newman, 14 Wall. 152, 165 (1871) (dictum). See Insurance
Co. v. Comstock, 16 Wall. 258 (1872) (issuing advisory
opinion to do service for mandamus). Relying on Newman
and Comstock, this Court in R ailroad Co. v. Wiswall, 23
Wall. 507 (1874), decided that an order of a federal trial
court remanding a removed case to the state court was
reviewable by mandamus.19 That ruling has never been
questioned in subsequent cases. See H oadley v. San Fran
cisco, 94 U. S. 4, 5 (1876); Babbitt v. Clark, 103 U. S. 606,
610 (1880); Turner v. Farm ers’ Loan & Trust Co., 106 IJ. S.
552, 555 (1882); Gay v. Ruff, 292 U. S. 25, 28 n. 3 (1934);
Em ployers Reinsurance Corp. v. Bryant, 299 U. S. 374, 378
(1937); also Missouri Pacific Ry. Co. v. Fitzgerald, 160 U. S.
556, 580 (1896); United S tates v. Rice, 327 U. S. 742, 749-
750 (1946). I t is accordingly clear that, but for any ques
tion arising from former 28 U. S. C. §1447(d), “the power
of the court to issue the mandamus would be undoubted.”
In re Pennsylvania Co., 137 U. S. 451, 453 (1890). Excep
tion of civil rights removal cases from the review bar of
the section therefore makes the writ available.
The availability of an appeal from the remand order does
not affect that of the writ. The two remedies are alterna
tively available under the 1964 amendment. Mandamus is
not here invoked to perform a function customarily per
formed by appeal. Compare E x parte Fahey, 332 U. S. 258
19 The Wiswall case was decided before the creation of the
courts of appeals in 1891, at a time when this Court had the
same immediate appellate superintendence over the old circuit
courts that the courts of appeals now have over the district
courts. In Wiswall the Court dismissed a writ of error to the
circuit court on the ground that the proper remedy was an
application to the Court for mandamus.
3 1
(1947). Bather, of the remedies, mandamus is the more
settled, the more traditional in this use. For that reason,
the principle that mandamus “is not to be used as a sub
stitute for appeal,” Schlagenhauf v. H older, 379 U. S. 104,
110 (1964), has no application. The principle is an aphoris
tic expression for the related considerations that this Court
will not ordinarily permit use of the writ to obtain inter
locutory review unauthorized by Congress, see e.g., Roche
v. E vaporated Milk Assn., 319 U. S. 21 (1943); Bankers L ife
and Cas. Co. v. Holland, 346 U. S. 379 (1953), and that
the pervasive federal policy against such interlocutory re
view will only yield in cases of plain abuse of discretion or
legal error by a district court, see Schlagenhauf v. Holder,
supra; P latt v. Minnesota Mining <& Mfg. Co., 376 U. S. 240
(1964). Neither of these considerations is involved in the
present use of the prerogative writ—the first, because Con
gress has explicitly authorized interlocutory review of re
mand orders; the second, for that reason and because, in
any event, the present ease presents a question of first im
pression concerning federal jurisdiction turning on con
struction of an important federal statute, see Schlagenhauf
v. H older, supra; Van Dusen v. Barrack, 376 U. S. 612, 615
n. 3 (1964). The aphorism has never been thought to mean
that in an otherwise fitting case mandamus would not lie
for the sole reason that the question sought to be raised
by the writ was raisable on an appeal, see United States
A lkali E xport Assn. v. United States, 325 U. S. 196 (1945);
and an unbroken line of authority supports the fitness of
mandamus for the specialized purpose of requiring a lower
court to assume a jurisdiction which it has wrongly de
clined. See pp. 29-30 supra.
Nor, since both appeal and mandamus are available
modes of review, were these defendants obligated to seek
3 2
the latter within the time limited for the former. See
Coppedge v. United States, 369 U. S. 438, 445 n. 10 (1962),
where this Court held that a federal criminal defendant’s
application to a court of appeals for leave to proceed on
appeal in form a pauperis was timely as an original applica
tion to that court notwithstanding the defendant did not
within ten days file an available appeal from the district
court’s denial of such leave. The question of timeliness
in application for the writ is governed by principles of
laches, see In re H ohorst, 150 U. S. 653 (1893); and neither
in its motion to dismiss the appeal below (see R. 10-13)
nor in its original petition for prerogative writs previously
filed in this Court (see Petition in Georgia v. Tuttle, 377
U. S. 987 (1964)) has Georgia ever asserted facts which
would support a finding of laches on the part of these de
fendants.
2 . T h e Court o f A ppeals M ight P erm issibly Entertain the
P resen t P ro ceed in g as on Petition fo r M andam us.
Defendants have never filed in the court of appeals any
paper specifically denominated a petition for mandamus,
although in their brief below they urged that the court
treat their motion of March 12, 1964 (App. la-3a) seeking
stay of the district court’s remand order, as such a peti
tion. Clearly it would lie within the power of the court of
appeals so to treat the motion; liberal treatment would
comport with prior practice both of this Court and of
the Fifth Circuit. E.g., Georgia H ardw ood Lum ber Co. v.
Compania de Navegacion Transmar, S.A., 323 U. S. 334
(1945) (notice of appeal treated as application for allow
ance of appeal in admiralty in order to save appeal); Crump
v. Hill, 104 F. 2d 36 (5th Cir. 1939) (filing in Court of Ap
peals of acknowledgment of service of notice of appeal and
3 3
designation of record treated as filing of notice of appeal in
order to save appeal); Des Isles v. Evans, 225 F. 2d 235
(5th Cir. 1955) (application for leave to appeal in form a
pauperis treated as notice of appeal in order to save ap
peal) ; B oth v. Bird, 239 F . 2d 257 (5th Cir. 1956) (sam e);
O’Neal v. United States, 272 F. 2d 412 (5th Cir. 1959)
(appeal bond treated as notice of appeal in order to save
appeal); Garter v. Campbell, 285 F. 2d 68 (5th Cir. 1960)
(securing of District Court order transmitting exhibits
to Court of Appeals, and filing in Court of Appeals a
motion for leave to prosecute appeal on typed record treated
as filing notice of appeal in order to save appeal); and for
an extreme instance see H adjipateras v. Pacifica, S.A., 290
F. 2d 697 (5th Cir. 1961) (motion in District Court for
allowance of appeal in admiralty and motion in Court of
Appeals for expedited hearing treated as petitions to the
respective courts for allowance of interlocutory appeal)
(alternative ground).20 Treatment of the March 12 motion
or of the other appeal papers (see New YorJc v. Qalamison,
20 The clear weight of federal authority supports the Fifth Cir
cuit decisions cited. E.g., In re Leigh, 139 F. 2d 386 (D. C. Cir.
1943) (petition to Court of Appeals for special appeal treated as
notice of appeal in order to save appeal) ; Societe Internationale
Pour Participations Industrielles et Commerdales, 8.A. v. McGrath,
180 F. 2d 406 (D. C. Cir. 1950) (same) ; The Astoria-n, 57 F. 2d 85
(9th Cir. 1932) (petition for libel of review treated as petition for
rehearing in order to extend appeal time and save appeal) ; Dickey
v. United States, 332 F. 2d 773 (9th Cir. 1964) (notice of motion
for new trial treated as motion for new trial in order to extend
appeal time and save appeal). By contrast, the Seventh Circuit
tends to insist on technical perfection. Hulson v. Atchison, Topeka
<& Santa F e By. Co., 289 F. 2d 726 (7th Cir. 1961). But the court
below had previously adopted “the more liberal rule” in such
matters, United States v. Stromberg, 227 F . 2d 903, 904 (5th Cir.
1955) (notice of appeal from denial of post-trial motions treated
as addressed to underlying judgment as well), as has this Court
since, Foman v. Davis, 371 U. S. 178 (1962) (same).
3 4
342 F. 2d 255, 257 (2d Cir. 1965) (dictum)) as petitions for
mandamus would be the more justifiable here because,
should review be denied on technical grounds, defendants
can readily file a second removal petition and return this
case to its present posture with all technical defects cured.
Cf. Heflin v. United States, 358 U. S. 415, 418 n. 7 (1959).21
At the least, then, if this Court concludes that defendants’
attempted appeal was untimely, the Court should remand
the case to the Fifth Circuit so that that court may exer
cise its discretion to review the remand order as on petition
for a prerogative writ.
C. This Court May Review the Remand Order as on
Original Petition for Mandamus.
Finally, it should be noted that this Court need not re
solve any issue of the jurisdiction of the court of appeals
in order to reach the important substantive question here
presented. Under 28 U. S. C. §1651 (1964), the Court at
its discretion might treat the case as properly before it
within its original jurisdiction to issue a writ of mandamus
to the district court without limitation of time. See E x
parte Peru, 318 U. S. 578 (1943). In view of the volume
21 Defendants’ counsel would be worse than disingenuous not to
concede that their papers were badly styled and that they are
now in the graceless posture, as Georgia puts it, of “trying fran
tically to . . . ‘stay in court’ ” (Br. 29). In February and March,
1964 the manner of obtaining review of a district court remand
order was far from clear and, while this does not excuse counsel’s
technical failures, it does suggest the harshness of visiting irrepar
able consequences on defendants. Cf. Reconstruction Finance Corp.
v. Prudence Securities Advisory Group, 311 U. S. 579 (1941)
(notice of appeal treated as petition to Court of Appeals for leave
to appeal where method of appeal was unsettled) ; Cutting v.
Bullerdick, 178 F. 2d 774 (9th Cir. 1949) (notice of motion for
a stay of execution pending posting of a supersedeas bond treated
as notice of appeal where manner of a notice of appeal was un
settled).
3 5
of litigation pending in the lower federal courts, see Peti
tion for Certiorari, Anderson v. City o f Chester, 0 . T. 1965,
No. 443, and the obvious “public importance” of expedi
tious construction of the civil rights removal statute, see
E x parte United States, 287 U. S. 241 (1932), the exercise
of that discretion in this case—already briefed and ripe for
argument—would seem appropriate.
II.
Defendants Crim inally Prosecuted fo r Conduct P ro
tected by T itle II o f the Civil Rights Act o f 1 9 6 4 May
Rem ove T heir Prosecutions Under 2 8 U. S. C. § 1 4 4 3
W ithout Showing That the State Crim inal Statutes
Underlying T h eir Prosecutions Are Facially Unconstitu
tional or the State Courts U nfair.
Part I I of Georgia’s brief (Br. 30-50) appears to make
two different points. The first involves construction of 28
U. S. C. §1443 (1964): Georgia contends that removal tinder
subsection (1) of that section is not available unless the
party seeking to remove is charged under, or otherwise
affected by, state legislation unconstitutional on its face
(Br. 30, 31-34, 42-43, 46); and that removal nnder subsec
tion (2) of the section is limited to federal officers and
persons acting under their authority (Br. 35-41, 43-46). The
second point is one of pleading: Georgia contends that the
removal petition was insufficient for lack of detailed factual
allegations (Br. 30-31, 34-35), hence did not require hearing
(Br. 47-50). Part I I I of Georgia’s brief (Br. 50-54) also
makes two points. The first concerns statutory construc
tion: subsection 1443(1) is said not to authorize removal
except upon a showing that the state courts will not fairly
entertain a petitioner’s federal claim (Br. 51-54). The
36
second questions the court of appeals* construction of Hamm
v. City o f B ock Hill, 379 U. S. 306 (1964), and consequently
the propriety of its directions to the district court on re
mand (Br. 50-51). Defendants will deal with the two points
of statutory construction in this Part I I of their brief, will
deal in Part I I I in fra with the sufficiency of their removal
petition as a pleading, and will deal in Part IV in fra with
the scope of the court of appeals’ remand directions.
Adequate consideration of the questions of construction
posed by this case requires a somewhat extended discus
sion of the legislative and judicial backgrounds of the civil
rights removal statute, 28 U. S. C. §1443 (1964). The
road of inquiry is long but leads straight to the conclusion
that state criminal defendants charged with offenses based
on conduct protected by the public accommodations sections
of the Civil Rights Act of 1964 may remove their prosecu
tions to a federal district court on that ground alone, with
out showing that the state statute under which they are
charged is facially unconstitutional, or that the state courts
will not fairly hear their federal defense.
A. T h e B ack g rou n d o f 2 8 U, S. C. § 1 4 4 3
1. Legislative B a ck gro u n d
Increasingly since the inception of the Government, fed
eral removal jurisdiction has been expanded by Congress22
22 See H art & W echsler, T he F ederal Courts and the F ederal
S ystem 1147-1150 (1953). Before 1887, the requisites for removal
jurisdiction were stated independently of those for original federal
jurisdiction; since 1887, the statutory scheme has been to author
ize removal generally of cases over which the lower federal courts
have original jurisdiction and, additionally, to allow removal in
special classes of cases particularly affecting the national interest:
suits or prosecutions against federal officers, military personnel,
persons unable to enforce their equal civil rights in the state courts,
37
to protect national interests in cases “in which the State
tribunals cannot be supposed to be impartial and un
biassed [sic],” 23 for history has increasingly taught the
wisdom of Hamilton’s insight: “The most discerning can
not foresee how far the prevalency of a local spirit may be
found to disqualify the local tribunals for the jurisdiction
of national causes . . . ” 24 In the Constitutional Convention
Madison pointed out the need for such protection just be
fore he successfully moved the Committee of the Whole to
authorize the national legislature to create inferior federal
courts.25
Mr. [Madison] observed that unless inferior tri
bunals were dispersed throughout the Republic with
final jurisdiction in m any cases, appeals would be multi
plied to a most oppressive degree; that besides, an
appeal would not in many cases be a remedy. WThat
was to be done after improper Verdicts in State tri
bunals obtained under the biased directions of a depen
dent Judge, or the local prejudices of an undirected
jury? To remand the cause for a new trial would an
swer no purpose. To order a new trial at the supreme
bar would oblige the parties to bring up their wit
nesses, tho’ ever so distant from the seat of the Court.
persons acting under color of authority derived from federal law
providing for equal rights or refusing to act inconsistently with
such law, the United States (in foreclosure actions), etc. 28 TJ. S. C.
§§14.41-1444 (1964) ; see Hart & Wechsuer, supra , at 1019-1020.
23 The F ederalist, No. 80 (Hamilton) ( Warner, Philadelphia ed.
1818), at 429.
24 Id., No. 81, at 439.
251 F arrand, T he Records op the F ederal Convention op 1787,
at 125 (1911). Mr. Wilson and Mr. Madison moved the matter
pursuant to a suggestion of Mr. Dickinson.
3 8
An effective Judiciary establishment commensurate to
the legislative authority, was essential. A Government
without a proper Executive & Judiciary would be the
mere trunk of a body without arms or legs to act or
move.20
The early Congresses made very sparing use of the power
which was thus given them by the Constitution; during
nearly three quarters of a century following the Judiciary
Act of 1789,26 27 they acted largely on the principle “that pri
vate litigants must look to the state tribunals in the first
instance for vindication of federal claims, subject to limited
review by the United States Supreme Court.” 28 The fed
eral trial courts were employed only for the limited federal
specialties; no general federal question jurisdiction was
created.29 Original civil diversity jurisdiction was given30
—responding then, as today, to “the possible shortcomings
of State justice,” particularly the localization of trial in
parochial communities where “justice is likely to be im
peded by the provincialism of the local judge and jury, the
tendency to favor one of their own against an outsider, and
the machinations of the local ‘court house gang’ ” 31—and
26 Id. at 124.
27 Act of Sept. 24, 1789, ch. 20, 1 Stat. 73.
28 Hart & W echsler, T he F ederal Courts and the F ederal
System 727 (1953).
29 Except by the federalist Act of Feb. 13, 1801, ch. 4, §11, 2
Stat. 89, 92, quickly repealed by the Act of March 8, 1802, eh. 8,
2 Stat. 132.
80 Act of Sept. 24, 1789, ch. 20, §11, 1 Stat. 78.
31A LI S tudy op the D iv is io n op J urisdiction B etween S tate
and F ederal Courts, Commentary, General Diversity Jurisdic
tion, at 41 (Tent. Draft No. 1, 1963).
39
civil removal jurisdiction was given in three sorts of cases32
where it was particularly feared that local prejudice might
impair national concerns. In criminal cases, however, the
federal trial courts were entirely excluded from incursion
into state proceedings,33 section 14 of the Judiciary Act
expressly excepted state prisoners from the federal habeas
corpus authority.34 35
Experience soon showed, however, the potential of the
state criminal process for destruction of vital national con
cerns. Congress responded with limited grants of federal
trial court jurisdiction, in removal and habeas corpus. In
1815, confronted by New England’s resistance to the War
of 1812,85 Congress in a customs act allowed removal of suits
or criminal prosecutions
32 The Act of Sept. 24, 1789, eh. 20, §12, 1 Stat. 79, authorized
removal in the following classes of eases where more than $500
was in dispute: suits by a citizen of the forum state against an
outstater; suits between citizens of the same state in which the
title to land was disputed and the removing' party set up an
outstate land grant against his opponent’s land grant from the
forum state; suits against an alien. The first two classes were
specifically described by Hamilton as situations “in which the state
tribunals cannot be supposed to be impartial,” The Federalist
No. 80, at 432 (Warner ed. 181). Madison speaking of state
courts in the Virginia convention, amply covered the third: “We
well know, sir, that foreigners cannot get justice done them in
these courts. . . . ” 3 Elliot’s Debates 583 (1836).
33 The jealousy of the States as regards their criminal process
is indicated by the furor aroused by Supreme Court assumption
of jurisdiction to review federal questions in state criminal cases
as late as 1821. Cohens v. Virginia., 19 U. S. (6 Wheat.) 264
(1821) ; see 1 W arren, T he S upreme Court in United S tates
H istory 547-59 (rev. ed. 1932).
34 Except where it was necessary to bring them into court to
testify. Act of Sept. 24, 1789, ch. 20, §14, 1 Stat. 81.
35 See 1 Morison & Commager, Growth o f the American Repub
lic 426-29 (4th ed. 1950).
40
against any collector, naval officer, surveyor, inspector,
or any other officer, civil or military, or any other per
son aiding or assisting, agreeable to the provisions of
this act, or under colour thereof, for any thing done,
or omitted to be done, as an officer of the customs, or
for any thing done by virtue of this act or under colour
thereof.36
In 1833, confronted by South Carolina’s opposition to the
tariff,37 Congress enacted the famed Force Act, giving the
President extensive power to use the military forces of the
United States to protect federal customs officers and sup
press resistance to the customs laws;38 extending the civil
jurisdiction of the federal courts to all cases arising under
the revenue laws;39 authorizing removal of any suit or
prosecution
against any officer of the United States, or other per
son, for or on account of any act done under the rev
enue laws of the United States, or under colour there
of, or for or on account of any right, authority, or title,
set up or claimed by such officer, or other person under
any such law of the United States;40
and adding to the federal habeas corpus jurisdiction
36 Act of Feb. 4, 1815, ch. 31, §8, 3 Stat. 198; Act of March 3,
1815, ch. 93, §6, 3 Stat. 233. Both enactments were temporary
legislation. Their removal provisions were extended four years
by Act of March 3, 1817, ch. 109, §2, 3 Stat. 396.
37 See 1 Morison & Commager, op. cit., supra, note 35, 475-85.
38 Act of March 2, 1833, ch. 57, §§1, 5, 4 Stat. 632, 634.
39 Act of March 2, 1833, ch. 57, §2, 4 Stat. 632.
40 Act of March 2, 1833, ch. 57, §3, 4 Stat. 633. Section 2 of the
act envisioned that under certain circumstances private individ
uals, as well as federal officers, might take or hold property pur
suant to the revenue laws.
41
power to grant writs of habeas corpus in all cases of
a prisoner or prisoners, in jail or confinement, where
he or they shall be committed or confined on, or by any
authority or law, for any act done, or omitted to be
done, in pursuance of a law of the United States, or
any order, process, or decree, of any judge or court
thereof."
The act’s evident purpose was to exclude state court juris
diction in cases affecting the tariff,41 42 and to give the federal
41 Act of March 2,1833, ch. 57, §7, 4 Stat. 634.
42 This purpose is apparent as respects the removal jurisdiction,
which was sustained in Tennessee v. Davis, 100 U. S. 257 (1880),
against constitutional complaints that “it is an invasion of the
sovereignty of a State to withdraw from its courts into the courts
of the general government the trial of prosecutions for alleged
offenses against the criminal laws of a State.” Id. at 266. The
revenue officer removal provisions were continued in successive
judiciary acts until 1948, when they were extended to encompass
all federal officers and persons acting under them. 28 IT. S. C.
§1442(a) (1) (1964). As for the habeas corpus grant, continued
in substance in present 28 U. S. C. §2241(c)(2) (1964), this has
always been construed as directing the federal courts to entertain
petitions for the writ in advance of state trial in cases where
federal officers are prosecuted, see the authorities collected in the
briefs and opinion in In re Neagle, 135 IT. S. 1 (1890) ; e.g., Beed
v. Madden, 87 F. 2d 846 (8th Cir. 1937); In re Fair, 100 Fed. 149
(C. C. D. Neb. 1900) ; United States ex rel. Flynn v. Fuelhart,
106 Fed. 911 (C. C. W. D. Pa. 1901); United States v. Lipsett,
156 Fed. 65 (W. D. Mich. 1907) ; Ex parte Warner, 21 F. 2d 542
(N. D. Okla. 1927) ; Brown v. Cain, 56 F. Supp. 56 (E. D. Pa.
1944) ; Lim a v. Lawler, 63 F. Supp. 446 (E. D. Va. 1945), or
where private citizens acting under federal officers are prosecuted,
Anderson v. Elliott, 101 Fed. 609 (4th Cir. 1900), dism’d 22 S. Ct.
930 (1902) ; West Virginia v. Laing, 133 Fed. 887 (4th Cir. 1904).
Discharge of federal officers has sometimes been denied after evi
dentiary hearing where the evidence did not preponderantly show
that the officer was acting within the scope of his federal authority.
United States ex rel. Drury v. Lewis, 200 U. S. (1906); Birsch
v. Tumbleson, 31 F. 2d 811 (4th Cir. 1929); Castle v. Lewis, 254
Fed. 917 (8th Cir. 1918) ; Ex parte Tilden, 218 Fed. 920 (D. Ida.
42
courts plenary power to enforce the tariff against concerted
state resistance, including state judicial resistance: it was
“apparent that the constitution of the courts in South Caro
lina makes it necessary to give the revenue officers the
right to sue in the federal courts.” 43
The federal habeas corpus jurisdiction was extended
again in 1842 to authorize release of foreign nationals and
domiciliaries held under state law or process on account of
any act claimed to have been done under color of foreign
authority depending on the law of nations.44 This extension
was occasioned by the M cLeod case,45 in which the New
York courts nearly provoked an international incident by
refusing to relinquish jurisdiction over a British subject
held for murder who claimed that the acts with which he
was charged were done under British authority. McLeod
was acquitted at his trial, but the need for an expeditious
federal remedy to short-cut the state court process in such
cases was strongly felt: “I f satisfied of the existence in
fact and validity in law of the [plea in] bar, the federal
jurisdiction will have the power of administering prompt
1914). The evidentiary standard is discussed in Brown v. Gain
and Lima v. Lawler, supra. These cases do not reflect hesitation
to use the federal writ to abort state trial in any case in which
the interests of the federal government are affected; they indicate
only that, in each ease, the federal interest was not sufficiently
shown on the facts. See In re Matthews, 122 Fed. 248 (E. D. Ky.
1902), and particularly In re Miller, 42 Fed. 307 (E. D. S. C.
1890) ; cf. Ex parte United States ex rel. Anderson, 67 F. Supp.
374 (S. D. Fla. 1946), decided on same grounds without a hearing.
43 9 Cong. Deb. 260 (Jan. 29, 1833). The speaker is Senator
Wilkins, who reported the bill, id. at 150 (Jan. 21, 1833), and
managed it in the Senate, id. at 246 (Jan. 28, 1833). See also,
id. at 329-32 (Feb. 2, 1833) (remarks of Senator Frelinghuysen).
44 Act of August 29,1842, ch. 257, 5 Stat. 539.
45 See People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y. 1841).
43
relief.” 46 Again, as in 1815 and 1833, the scope of federal
intrusion was narrow.
But the Civil War and its aftermath changed the con
gressional temper sharply. During and after the War, Con
gress multiplied the uses of the federal courts and, in par
ticular, their uses to anticipate the state criminal process.
By the Habeas Corpus Suspension Act of 186347 it immu
nized from state civil and criminal liability persons making
searches, seizures, arrests and imprisonments under presi
dential orders during the existence of the rebellion; to in
sure this protection, it provided in section 5 of the act for
removal of all suits and criminal prosecutions
against any officer, civil or military, or against any
other person, for any arrest or imprisonment made, or
other trespasses or wrongs done or committed, or any
act omitted to be done, at any time during the present
rebellion, by virtue or under color of any authority de
rived from or exercised by or under the President of
the United States, or any act of Congress.48
The debates preceding passage of the act reflected congres
sional concern that federal officers could not receive a fair
trial in hostile state courts, and that the appellate super
vision of the Supreme Court of the United States would
46 Senator Berrien, at Cong. Globe, 27th Cong., 2d Sess. 444
(4/26/42). Mr. Berrien, chairman of the Senate Judiciary Com
mittee, reported and managed the bill which became the act. Id.
at 443. See the discussion of the act in In re Neagle, 135 U. S. 1,
71-72, 74 (1890).
47 Act of March 3, 1863, ch. 81, 12 Stat. 755.
4812 Stat. 756.
44
be inadequate to rectify the decisions of lower state tri
bunals having the power to find the facts.49 50
In 1864 and 1866,60 Congress also extended the customs-
officer removal provisions of the 1833 Force Act to cover
civil and criminal cases involving internal revenue collec
tion. In their final 1866 form, these provisions authorized
federal removal of suits and prosecutions “against any
officer of the United States appointed under or acting by
authority of [the revenue laws] . . . or against any person
acting under or by authority of any such officer on account
of any act done under color of his office,” or against persons
claiming title from such officers, where the cause concerned
the property and affected the validity of the revenue laws.
During the first months of the Thirty-Ninth Congress,
Union military commanders in the defeated South trans
ferred from the state courts to national military tribunals
civil and criminal jurisdiction over cases involving Union
49 Cong. Globe, 37th Cong., 3d Sess. 534-38 (Jan. 27, 1863).
50 Act of March 7, 1864, eh. 20, §9, 13 Stat. 17; Act of June 30,
1864, ch. 173, §50, 13 Stat. 241; Act of July 13, 1866, eh. 184, 14
Stat. 98. By the 1866 act Congress (a) generally amended the
revenue provisions of the act of June 30, 1864; (b) in §67, 14
Stat. 171, authorized removal of any civil or criminal action
against any officer of the United States appointed under or
acting by authority of [the Act of June 30, 1864, and amend
ments thereto] . . . or against any person acting under or
by authority of any such officer on account of any act done
under color of his office, or against any person holding prop
erty or estate by title derived from any such officer, con
cerning such property or estate, and affecting the validity
of [the revenue laws] . . . ;
and (c) in §68, 14 Stat. 172, repealed the removal provisions
(§50) of the Act of June 30, 1864, and provided for the remand
to the state courts of all pending removed cases which were not
removable under the new 1866 removal provisions.
4 5
soldiers, loyalists and Negroes.51 52 Recognizing the wisdom
of this transfer, and intensely aware of the hostility and
anti-Union prejudice of the Southern state courts,62 whose
process was being used to harass the unionists and freed-
men,53 that Congress took four important steps to curb
the state courts.
First, by the Amendatory Freedmen’s Bureau Act,54 it
approved and expressly authorized the supersession of
51 See General Sickles’ order, set out at Cong. Globe, 39th Cong.,
1st Sess. 1834 (April 7, 1866), providing that military courts
“shall have, as against any and all civil courts, exclusive juris
diction in all cases where freedmen and other persons of color
are directly or indirectly concerned, until such persons shall be
admitted to the State courts as parties and witnesses with the same
rights and remedies accorded to all other persons,” unless the
Negroes concerned filed a written stipulation submitting the pro
ceeding to the state court. Cf. id. at 320 (Jan. 19, 1866) (General
Grant’s order).
52 E.g., id. at 1526 (March 20, 1866) (remarks of Representative
McKee, of Kentucky), 1527 (remarks of Representatives Garfield
and Smith, of Kentucky), 1529 (remarks of Representative Cook)
2054, 2063 (April 20, 1866) (remarks of Senator Clark). Clark
pointed out that hostile state legislatures could not be looked
to for redress of the discriminations practiced by hostile state
judges. Id. at 2054. The only relief for the Union men was access
to the federal courts: “There is where they are most likely to
have their rights protected. There is where local prejudices are
frowned down.” Id. at 1526 (March 20, 1866) (remarks of Rep
resentative McKee, of Kentucky) ; see id. at 1528 (remarks of
Representative Smith, of Kentucky), 1529-30 (remarks of Rep
resentative Cook) ; cf. id. at 1387 (March 14, 1866) (remarks of
Representative Cook). See also the debates on the amendatory
freedmen’s bureau bills: id. at 320 (Jan. 19, 1866) (remarks of
Senator Trumbull), 339 (Jan. 22, 1866) (remarks of Senator
Cresswell), 744 (Feb. 8, 1866) (remarks of Senator Sherman),
941 (Feb. 20, 1866) (remarks of Senator Trumbull), 657 (Feb. 5,
1866) (remarks of Representative Eliot), 2774-77 (May 23, 1866)
(remarks of Representative Eliot).
53 See text and notes at notes 61-67, infra.
54 Act of July 16, 1866, ch. 200, §14, 14 Stat. 176. Concerning
supersession of state civil and criminal jurisdiction by military
4 6
state courts by Union military tribunals throughout the
South until the rebellious States were restored to order and
their representatives readmitted to Congress.55 In this, the
tribunals under the act, see Dunning, E ssays on the Civil War
and Reconstruction 147, 156-63 (1898).
55 Section 14 of the Amendatory Freedmen’s Bureau Act, note 54
supra, provided that in every State where “the ordinary course of
judicial proceedings has been interrupted by the rebellion,” or
where the State’s “constitutional relations to the government have
been practically discontinued by the rebellion,” certain enumerated
rights—an enumeration substantially identical to that of §1 of the
Civil Rights Act—should be secured to all citizens without respect
to race or color. Where the course of judicial proceedings had
been interrupted, the President through the Freedmen’s Bureau
was to “extend military protection and have military jurisdiction
over all cases and questions concerning the free enjoyment of such
immunities and rights,” this jurisdiction to cease in every State
when the state and federal courts therein were no longer disturbed
in the peaceable course of justice, and after the State was re
stored to its constitutional relations and its representatives seated
in Congress. The jurisdiction appears of slightly different scope
than that given by the first amendatory freedmen’s bureau bill,
S. 60 of the Thirty-ninth Congress, a companion bill to the civil
rights bill, infra, which failed of passage over President
■ Johnson’s veto. The predecessor bill authorized military jurisdic
tion over all cases affecting the Negroes, but only when in a State
the ordinary course of judicial proceedings had been interrupted
by the rebellion and the same enumerated rights were discrimina-
torily denied to Negroes; this jurisdiction to cease “whenever the
discrimination on account of which it is conferred ceases,” and
in any event so soon as the state and federal courts were no longer
disturbed and the State’s constitutional relations were restored.
In debate on the first bill, Senator Trumbull, who introduced,
reported and managed it, Cong. Globe, 39th Cong., 1st Sess. 129
(Jan. 5, 1866), 184 (Jan. 11, 1866), 209 (Jan. 12, 1866), resisted
attacks on the jurisdiction by repeated insistence that the bill
operated only where the civil courts were overthrown. Id. at 320-22
(Jan. 19, 1866), 347 (Jan. 22, 1866), 937-38 (Feb. 20, 1866). In
this he manifested no deference to the state courts, for the princi
pal attack was upon the institution of military tribunals, as distin
guished from federal civil tribunals, see, e.g., the President’s veto
messages set out id. at 915-17 (Feb. 19, 1866), 3849-50 (July 16,
1866), and it was to this attack that Trumbull replied. See id. at
4 7
Thirty-Ninth Congress—like the military commanders be
fore it—intended that nationally responsible courts should
sit at the trial level, so that the unionists and freedmen
might be protected not only against explicitly discrimina
tory Southern state statutes, but also against Southern
state judicial maladministration of statute law apparently
fair on its face.56
322 (Jan. 19, 1866), 937-38 (Feb. 20, 1866). He explained that
the civil rights bill applied, and could be enforced, only in parts
of the country where the civil courts were functioning; that the
amendatory freedmen’s bureau bill applied only where they were
not. Id. at 3412 (June 26, 1866) (debate on the second bill). See
also id. at 2773 (May 23, 1866) (remarks of Bepresentative Eliot,
who reported and managed the second bill, id. at 2743 (May 22,
1866), 2772 (May 23, 1866)). And in a speech concerned with
both the civil rights and first amendatory freedmen’s bureau bills,
Trumbull appears to view them as having substantially similar
scope. Id. at 322-23 (Jan. 19, 1866).
66 Particularly significant is an order of General Terry in Vir
ginia, March 12, 1866, set out at Cong. Globe, 39th Cong., 1st
Sess. 1834 (April 7, 1866). The Virginia legislature on February
28, 1866, had passed a statute providing that all laws respecting
crimes, punishments, and criminal proceedings should apply equally
to Negroes and whites, and that Negroes should be competent wit
nesses in all eases in -which Negroes were involved. General Terry’s
order thereupon restored to the civil courts the jurisdiction there
tofore exercised by the military tribunals in all criminal matters
affecting the freedmen, but provided an elaborate system of pro
tection to assure that the Virginia laws would be fairly admin
istered as they were written. Under part I I I of the order, assistant
superintendents of the Freedmen’s Bureau were required to attend
in person all criminal trials or preliminary hearings in which
Negroes were parties or witnesses. Under part IV, the duties of
the assistants were spelled out: they were not to interfere with
the court, or act as attorneys, although they might make friendly
suggestions to the Negroes concerned. “They will, however, make
immediate report of any instance of oppression or injustice against
a colored party, whether prosecutor or defendant, and also in
case the evidence of colored persons should be improperly rejected
or neglected.” Under part V, the assistants were to examine and
report if in any instance a prosecutor, magistrate, or grand jury
had refused justice to a colored person by improperly neglecting
4 8
Second, the same Congress substantially amended the
removal procedures under the Habeas Corpus Suspension
Act of 1863, supra, in order to prevent their obstruction by
the state courts. The Act of May 11, 1866, chapter 80,* 57
facilitated removal practice;58 the Act of February 5, 1867,
a complaint or refusing to receive a sworn information, so that,
by reason of partiality a trial or prosecution was avoided. Part VI
required the assistants to make monthly detailed reports con
cerning the effect of the order on the interests of Negroes, “whether
they have been treated with impartiality and fairness, and the
law respecting their testimony carried out in good faith or other
wise.” General Grant’s order of January 12, 1866, had directed
the commanders to protect Negroes from prosecution in the rebel
States “charged with offenses for which white persons are not
prosecuted or punished in the same manner and degree.” Id. at 320
(Jan. 19, 1866). Senator Trumbull, questioned concerning Grant’s
order, said that he did “indorse the order and every word in it.”
Ibid.
5714 Stat. 46.
58 Section 1 of the Act of May 11, 1866, declared that any act or
omission under authorized military order came within the purview
of the sections of the act of 1863 which made acts or omissions un
der presidential order immune from civil and criminal liability and
allowed removal to the federal courts by defendants charged in
state courts in respect of such acts. 14 Stat. 46. The section was
responsive to state court decisions requiring that a defendant pro
duce an order from the President himself in order to come within
the 1863 act. Cong. Globe, 39th Cong., 1st Sess. 1387 (March 14,
1866) (remarks of Representative Cook, who reported the bill, id.
at 1368 (March 13, 1866), and was its floor manager, id. at 1387
(March 14, 1866)). Section 2 of the 1866 act specified the means
by which the millitary order relied on might be proved. Section 3
extended the time for removal up to the point of empaneling a jury
in the state court, and eliminated the 1863 requirement of a re
moval bond. Section 4 directed that upon the filing of a proper
removal petition all state proceedings should cease, and that any
state court proceedings after removal should be void and all
parties, judges, officers, or other persons prosecuting such pro
ceedings should be liable for damages and double costs to the re
moving party. 14 Stat. 46. Section 5 directed the clerk of the
state court to furnish copies of the state record to a party seeking
to remove, and permitted that party to docket the removed case
49
chapter 27,59 authorized the issuance of writs of habeas
corpus cum causa by the federal courts to bring before
them any imprisoned defendants whose cases had been re
moved.60 The debates on the first of these remedial enact
ments are particularly revealing: they demonstrate be
yond peradventure Congress’ distrust of, and unwilling
ness to leave the vindication of federal interests to, the
state judiciary. “Now, it so happens, as the rebellion is
passing away, as the rebel soldiers and officers are return
ing to their homes, that I may say thousands of suits are
springing up all through the land, especially where the
rebellion prevailed, against the loyal men of the country
in the federal court without attaching the state record in case of
refusal or neglect by the state court clerk. 14 Stat. 46-47. These
latter provisions were intended to alter procedural requirements
upon which the state courts had seized to obstruct removal. E.g.,
Cong. Globe, 39th Cong., 1st Bess. 1387-88 (March 14, 1866) (re
marks of Representative Cook), 2054 (remarks of Senator Clark,
who reported the bill, id. at 1753 (April 4, 1866), and was its floor
manager, id. at 1880 (April 11, 1866)).
5914 Stat. 385.
60 The act was reported by the Judiciary Committee in each
house. Cong. Globe, 39th Cong., 1st Sess. 4096 (July 24, 1866)
(House), 4116 (Senate). Its purpose was to take from state cus
tody defendants whose cases had been removed into the federal
courts, id. at 4096 (July 25, 1866) (remarks of Representative Wil
son, who reported the bill and was its floor manager, ibid.) ; Cong.
Globe, 39th Cong., 2d Sess. 729 (Jan. 25, 1867) (remarks of Sena
tor Trumbull, chairman of the Judiciary Committee, who reported
the bill, Cong. Globe, 39th Cong., 1st Sess. 4116 (July 24, 1866),
and was its floor manager, Cong. Globe, 39th Cong., 2d Sess. 729
(Jan. 25, 1867)), and thereby to permit the federal court to de
termine the validity of the defendant’s detention under arrest,
ibid, (remarks of Senator Johnson).
The civil rights removal provisions of the Act of April 9, 1866,
ch. 31, §3, 14 Stat. 27, infra, adopted the procedures of the 1863 re
moval sections “and all acts amendatory thereof.”
5 0
who endeavored to put the rebellion down.” 61 “ [S]uits are
springing up from one end to the other; and these rebel
courts are ready to decide against your Union men and
acquit the rebel soldier.” 62 “A great many vexatious suits
have been brought, and they are still pending, and instances
have been known—they exist now—where Federal officers
have been pushed very hard and put to great hardships
and expense, and sometimes convicted of crime, for doing
things which were right in the line of duty, and which they
were ordered to do and which they could not refuse to
do.” 63 In Kentucky, “they are harassing, annoying, and
61 Cong. Globe, 39th Cong., 1st Sess. 2021 (April 18, 1866) (re
marks of Senator Clark). Senator Clark reported and managed the
bill which became the act. Note 58 supra.
The oppressive volume of state litigation against Union men was
frequently noted in debate. E.g., Cong. Globe, 39th Cong., 1st Sess.
1880 (April 11, 1866) (remarks of Senator Clark), 1983 (April 17,
1866) (remarks of Senator Trumbull, Chairman of the Judiciary
Committee) : I t was said that there were over 3000 cases pending
in Kentucky alone. Id. at 1526, 1529 (March 20, 1866) (remarks of
Representative McKee, of Kentucky), 1983 (April 17, 1866) (re
marks of Senator Clark), 2021 (April 18, 1866) (remarks of Sena
tor Clark), 2054 (April 20, 1866) (remarks of Senator Wilson).
62 Id. at 2021 (April 18, 1866) (remarks of Senator Clark).
63 Id. at 1880 (April 11, 1866) (remarks of Senator Clark).
Recognition that the cost of defending suits and prosecution might
itself be ruinous to defendant Union men found strong expression
in the comments of Senators Edmunds, id. at 2063, 2064 (April 20,
1866), and Howe, id. at 2064, in debate of an amendment offered
by Edmunds providing that the Secretary of War should defend
all actions within the scope of the bill at government expense, and
should indemnify the individual defendant for damages, costs, fines
and expenses. The amendment was opposed on the ground that it
would overburden the Government’s financial resources, encourage
litigation, encourage collusive actions, result in larger jury verdicts
in damage actions, and that defendants could be adequately pro
tected by private indemnifying bills. Both Edmunds’ amendment
and one by Howe providing for government defense of removed
actions, were defeated. Id. at 2064-66. Apart from questions of
expense, the injury to state-court defendants resulting from delay
5 1
even driving out of the State the men who stood true to
the flag by suits under the legislation and judiciary rulings
of Kentucky. There no protection is guaranteed to a Fed-
in the vindication of their federal rights was pointed up by the
debate between Senators Doolittle and Hendricks, who opposed the
provision making state judges civilly liable for proceeding after
removal of a cause to the federal court, and Senators Stewart and
Clark, who supported it. Senator Doolittle said that it should not
be presumed state judges would flout the federal removal statute.
Senator Stewart asked, in effect, what relief there was for an in
dicted defendant if the state court did flout removal, pointing out
that a state judge could force an indictment to trial even without
the cooperation of the state prosecutor.
Mb . Hendricks. The Senator as a lawyer knows that this
will be the effect of i t : if the application takes away the juris
diction of the State courts then the remedy, of course, if the
plaintiff persists in the case, is in the appellate courts, and
finally, on an appeal, in the Supreme Court of the United
States, inasmuch as the validity of this law, an act of Congress,
would be in question.
Mr. Stewart. But suppose the judge goes on and convicts
the man and sends him to the penitentiary, he must lie there
until the case can be heard in the Supreme Court, three or four
years hence.
Mr . Doolittle. H ow can he send him to the penitentiary?
No officer is allowed to do it. W ill the judge put him there
himself ?
Mr. Stewart. The judge can order the officer to put him
there.
Mr. Doolittle. What if he does if the officer cannot put
him there? I f every officer to execute a decree of the court
is made responsible, how can the judge do it?
Mr . Stewart. The judge has jurisdiction over the officer,
and he can order him to do it, and if he does not do it the
judge can call upon the power of the State if he has juris
diction.
Mr. Clark. I desire to make but one suggestion in answer
to the Senator from Wisconsin, and that is one of fact. He
says if it were necessary that these judges should be proceeded
against he would not object. I hold in my hand a communica
tion from a member of the other House from Kentucky, in
which he says that all the judicial districts of Kentucky, with
the exception of one, are in the hands of sympathizing judges.
(footnote continued on following page)
5 2
eral soldier.” 6i * * 64 “ [I]n another county of that State the
grand jury indicted every Union judge, sheriff, and clerk
of the election of August, 1865. In addition to that every
loyal man who had been in the Army and had, under the
order of his superior officer, taken a horse, was indicted.” 65
Discrimination against the Union men “is the rule in Ken
tucky, except in one solitary district, and the Legislature
at its last session inaugurated means of removing that
judge, simply because he dared to carry out this act of the
Federal Congress [the 1863 removal statute].” 66 “There
must be some way of remedying this crying evil, and these
men who have been engaged in the defense of the country
cannot be permitted to be persecuted in this sort of way.
Their life becomes hardly worth having, if, after having
driven the rebels out of their country and subdued them,
those rebels are to be permitted to return and harass them
from morning until night and from night till morning, and
make their life a curse for that very defense which they
have given your country.” 67
They entirely disregard the act to which this is an amendment.
They refuse to allow the transfer, and proceed against these
men as if nothing had taken place. Here is not the assumption
that these judges will not do this; here is the fact that they do
not do it, and it is necessary that these men should be pro
tected.
Id. at 2063 (April 20, 1866). Senators Stewart and Clark prevailed
in the vote on an amendment seeking to strike the provision making
the state judges liable. I bid.
64 Id. at 1526 (March 20, 1866) (remarks of Representative
McKee, of Kentucky).
65 Id. at 1527 (remarks of Representative Smith, of Kentucky).
See id. at 1526 (remarks of Representative McKee, of Kentucky).
66 Id. at 1526; see id. at 2063 (April 20, 1866) (remarks of Sena
tor Clark).
67 Id. at 2054,
5 3
Third, the Thirty-Ninth Congress extended the federal
habeas corpus jurisdiction to “all cases where any person
may be restrained of his or her liberty in violation of
the constitution, or of any treaty or law" of the United
States . . . , ” 68 made elaborate provision for summary
hearing and summary disposition by the federal judges,
and provided th at:
pending such proceedings or appeal, and until final
judgment be rendered therein, and after final judgment
of discharge in the same, any proceeding against such
person so alleged to be restrained of his or her liberty
in any State court, or by or under the authority of any
State, for any matter or thing so heard and deter
mined, or in process of being heard and determined,
under and by virtue of such writ of habeas corpus,
shall be deemed null and void.69
This statute was designed “to enlarge the privilege of the
writ of hoheas [sic] corpus, and make the jurisdiction of
the courts and judges of the United States coextensive with
all the powers that can be conferred upon them,” 70 to give
68 Act of February 5,1867, ch. 28, 14 Stat. 385.
69 Act of February 5, 1867, ch. 28, §1, 14 Stat. 386. The successor
to this provision is present 28 U. S. C. §2251 (1964), which au
thorizes any federal justice or judge before whom a habeas corpus
proceeding is pending, to “stay any proceeding against the person
detained in any State court or by or under the authority of any
State for any matter involved in the habeas corpus proceeding,”
before judgment, pending appeal, or after final judgment of dis
charge in the habeas case. State proceedings after granting of a
stay are declared void, but if no stay is granted state proceedings
are “as valid as if no habeas corpus proceedings or appeal were
pending.”
70 Cong. Globe, 39th Cong., 1st Sess. 4151 (July 25, 1866) (re
marks of Representative Lawrence, who reported the bill and was
its manager in the House).
5 4
any person “held under a State law in violation of the
Constitution and laws of the United States . . . recourse to
United States courts to show that he was illegally impris
oned in violation of the Constitution or laws of the United
States.” 71 It was “legislation . . . of the most comprehen
sive character [bringing] . . . within the habeas corpus
jurisdiction of every court and of every judge every pos
sible case of privation of liberty contrary to the National
Constitution, treaties, or laws. It is impossible to widen
this jurisdiction.” 72 Recent exhaustive study of the his
tory of the 1867 habeas corpus statute confirms that its
purpose was to give a summary and imperious federal
judicial procedure for the pretrial abortion of state crimi
nal proceedings,73 and thoroughly supports this Court’s
observation that “Congress seems to have had no thought
. . . that a state prisoner should abide state court deter
mination of his constitutional defense—the necessary pred
icate of direct review by [the Supreme Court] . . .—before
resorting to federal habeas corpus. Rather, a remedy al
most in the nature of rem oval from the state to the federal
courts of state prisoners’ constitutional contentions seems
to have been envisaged.” F ay v. Noia, 372 U. S. 391, 416
(1963). See also, In re Neagle, 135 U. S. 1 (1890).
71 Id. at 4229 (July 27, 1866) (remarks of Senator Trumbull,
Chairman of the Judiciary Committee, who reported the bill and
was its manager in the Senate, id. at 4228).
72 E x parte McCardle, 73 U. S. (6 Wall.) 318, 325-26 (1868).
73 Amsterdam, Criminal Prosecutions Affecting Federally Guar
anteed Civil B ights: F ederal Removal and Habeas Corpus Ju ris
diction to Abort State Court Trial, 113 U. Pa. L. Rev. 793 (1965).
This article is concerned with the federal civil rights removal juris
diction as well as with federal habeas corpus power to anticipate
state criminal trials. The historical materials and some of the argu
ments in this brief are supported by the article.
5 5
Fourth, and most significant, on April 9, 1866, Congress
enacted the first major civil rights act.74 Its third section,
the ancestor of the present 28 U. S. C. §1443 (1958), on
which defendants rely to sustain removal, provided:
Sec. 3. And he it further enacted, That the district
courts of the United States, within their respective
districts, shall have, exclusively of the courts of the
several States, cognizance of all crimes and offences
committed against the provisions of this act, and also,
concurrently with the circuit courts of the United
States, of all causes, civil and criminal, affecting per
sons who are denied or cannot enforce in the courts
or judicial tribunals of the State or locality where
they may be any of the rights secured to them by the
first section of this act; and if any suit or prosecution,
civil or criminal, has been or shall be commenced in
any State court, against any officer, civil or military,
or other person, for any arrest or imprisonment, tres
passes, or wrongs done or committed by virtue or under
color of authority derived from this act or the act estab
lishing a Bureau for the relief of Freedman and Refu
gees, and all acts amendatory thereof, or for refusing
to do any act upon the ground that it would be incon
sistent with this act, such defendant shall have the
right to remove such cause for trial to the proper
district or circuit court in the manner prescribed by
the “Act relating to habeas corpus and regulating
judicial proceedings in certain cases,” approved March
three, eighteen hundred and sixty-three, and all acts
amendatory thereof. The jurisdiction in civil and
criminal matters hereby conferred on the district and
74 Act of April 9, 1866, eh. 31,14 Stat. 27.
5 6
circuit courts of the United States shall be exercised
and enforced in conformity with the laws of the United
States, so far as such laws are suitable to carry the
same into effect; but in all cases where such laws are
not adapted to the object, or are deficient in the pro
visions necessary to furnish suitable remedies and
punish offences against law, the common law, as modi
fied and changed by the constitution and statutes of
the State wherein the court having jurisdiction of the
cause, civil or criminal, is held, so far as the same is
not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern said
courts in the trial and disposition of such cause, and,
if of a criminal nature, in the infliction of punishment
on the party found guilty.75
The purpose of this 1866 act—“An Act to protect all
Persons in the United States in their Civil Rights and to
furnish the Means of their Vindication”—was to upset
the Dred Scott decision76 by declaring the Negroes citizens,
to establish as an incident of that citizenship “the same
right” to contract, hold property, etc., and “to full and
equal benefit of all laws and proceedings for the security
of person and property” as enjoyed by whites (section l ) , 77
76 Act of April 9, 1866, eh. 31, §3, 14 Stat. 27.
76 Scott v. Sandford, 60 U. S. (19 How.) 393 (1857).
77 Act of April 9, 1866, eh. 31, §1, 14 Stat. 27, provided:
That all persons born in the United States and not subject to
any foreign power, excluding Indians not taxed, are hereby
declared to be citizens of the United States; and such citizens,
of every race and color, without regard to any previous condi
tion of slavery or involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly con
victed, shall have the same right, in every State and Territory
5 7
to deter by criminal penalties the deprivation of that
“right” (section 2),78 and to give the Negroes access to
federal courts for protection of the right (section 3).79 The
structure of section 3 was: (1) to create original federal
jurisdiction in the case of persons who were denied or could
not enforce their §1 rights in the state courts; (2) to create
removal jurisdiction in cases where any “such person” was
sued or prosecuted in a state court; and (3) to create addi
tional removal jurisdiction over suits or prosecutions
against persons on account of alleged wrongs committed
under color of the 1866 act or the Freedmen’s Bureau Acts.
Little appears in the legislative history, however, that is
helpful in precise construction of any of these jurisdic
tional grants.80 Since the basic substantive right given by
in the United States, to make and enforce contracts, to sue, be
parties, and give evidence, to inherit, purchase, lease, sell,
hold and convey real and personal property, and to full and
equal benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens, and shall
be subject to like punishment, pains, and penalties, and to none
other, any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding.
78 Act of April 9, 1866, ch. 31, §2, 14 Stat. 27, made it criminal
for any person, acting under color of law, to subject another to
deprivation of any right secured or protected by the act (see §1,
note 77, supra), or to different punishments, pains, or penalties by
reason of race, color, or previous servitude. The section is the fore
bear of present 18 U. S. C. §242 (1964).
79 Act of April 9, 1866, ch. 31, §3, 14 Stat. 27.
80 Except for the words which now appear as the last clause of
28 U. S. 0. §1443(2) (1964), allowing removal of actions or prose
cutions “for refusing to do any act on the ground that it would be
inconsistent with [federal] . . . law [providing for equal civil
rights].”
The language “or for refusing to do any act on the ground that
it would be inconsistent with this act” was added to the Senate bill
by a House amendment. Cong. Globe, 39th Cong., 1st Sess., 1366
5 8
section 1 of the act was a right of equal treatment under
state laws and proceedings, it was an obvious shorthand
description of the scope of section 3 to say that it covered
“the cases of persons who are discriminated against by
State laws or customs,” 81 persons “whose equal civil rights
are denied . . . in the State courts,” 82—and these were the
expressions used by Senator Trumbull, who more than any
other one man was the guiding force behind the Civil Rights
Act,83 and who gave the only systematic exposition of its
judiciary provisions found in the debates.84 In the con
(March 13, 1866); see id., at 1413 (March 15, 1866). Compare id.
at 211 (Jan. 12, 1866) (original Senate bill). The purpose of the
amendment was stated by Representative Wilson, House Judiciary
Committee chairman and floor manager of the bill, in reporting it
from his committee, as follows:
Mr. Wilson, of Iowa.
I will state that this amendment is intended to enable State
officers, who shall refuse to enforce State laws discriminating
in reference to these rights on account of race or color, to re
move their cases to the United States courts when prosecuted
for refusing to enforce those laws . . .
Id. at 1367 (March 13, 1866). There was no other pertinent discus
sion of the provision.
81 Id. at 475 (Jan. 29, 1866) (remarks of Senator Trumbull).
82 Ibid.
83 Senator Trumbull, who was Chairman of the Judiciary Com
mittee, introduced the bill (S. 61), and had it referred to his com
mittee. Id. at 129 (Jan. 5, 1866). He reported the bill from com
mittee, id. at 184 (Jan. 11, 1866), and managed it on the Senate
floor, see id. at 474 (Jan. 29, 1866). Throughout the debates he
played a leading role, fully commensurate with his moral and
political ascendancy over the Thirty-Ninth Congress.
84 See Senator Trumbull’s key speech urging the bill’s passage
over veto, Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 1866) :
The President objects to the third section of the bill . . .
[H]e insists [that it] gives jurisdiction to all cases affecting
persons discriminated against, as provided in the first and
5 9
text of Congress’ concern with the substantive question of
denials of equality, this language plainly does not mean
that the removal jurisdiction depended upon a showing of
actual denial or discrimination by the state courts: the
very text of the statute reaches prosecutions both against
second sections of the b ill; and by a strained construction the
President seeks to divest State courts, not only of jurisdiction
of the particular case where a party is discriminated against,
but of all cases affecting him or which might affect him. This
is not the meaning of the section. I have already shown, in
commenting on the second section of the bill, that no person
is liable to its penalties except the one who does an act which
is made penal; that is, deprives another of some right that he
is entitled to, or subjects him to some punishment that he
ought not to bear.
So in reference to this third section, the jurisdiction is given
to the Federal courts of a case affecting the person that is dis
criminated against. Now, he is not necessarily discriminated
against, because there may be a custom in the community dis
criminating against him, nor because a legislature may have
passed a statute discriminating against him; that statute is
of no validity if it comes in conflict with a statute of the
United States; and it is not to be presumed that any judge of
a State court would hold that a statute of a State discrimi
nating against a person on account of color was valid when
there was a statute of the United States with which it was in
direct conflict, and the case would not therefore rise in which
a party was discriminated against until it was tested, and
then if the discrimination was held valid he would have a right
to remove it to a Federal court—or, if undertaking to enforce
his right in a State court he was denied that right, then he
could go into the Federal court; but it by no means follows
that every person would have a right in the first instance to
go to the Federal court because there was on the statute-book
of the State a law discriminating against him, presumption
being that the judge of the court when he came to act upon the
case, would, in obedience to the paramount law of the United
States, hold the State statute to be invalid.
I f it be necessary in order to protect the freedmen in his
rights that he should have authority to go into the Federal
courts in all cases where a custom prevails in a State, or where
there is a statute-law of the State discriminating against him,
60
persons “who are denied” and those who “cannot enforce”
their rights in the state tribunals. In any event, it is plain
that Trumbull was summarizing only part of the jurisdic
tion granted by section 3: the jurisdiction under the clauses
affecting persons “who are denied or cannot enforce” their
federal claims (now 28 U. S. C. §1443(1) (1964)).86 The
jurisdiction over persons acting “by virtue or under color
of authority” of the 1866 Act or the Freedmen’s Bureau
Acts (now 28 IT. S. C. §1443(2) (1964)), remains unillumi
nated.
However, one point does emerge clearly from the debates
and from the original statutory language. Contrary to the
construction which this Court was subsequently to put on
the “denial” clause (present §1443(1)) in a series of cases
between Virginia v. Rives, 100 U. S. 313 (1880), and K en
tucky v. Powers, 201 IT. S. 1 (1906), see pp. 74-85, infra,
Congress did not intend that removal be allowed only where
state statutory law, federally unconstitutional on its face,
denied a criminal defendant’s federally protected rights.
Certainly it is true that Southern resistance to the Thir
teenth Amendment first took the form of Black Codes—
statutory regulations directed expressly against the freed
I think we have the authority to confer that jurisdiction under
the second clause of the constitutional amendment, which au
thorizes Congress to enforce by appropriate legislation the
article declaring that “neither slavery nor involuntary servi
tude, except as a punishment for crime where of the party shall
have been duly convicted, shall exist within the United States
or in any place subject to their jurisdiction.” That clause au
thorizes us to do whatever is necessary to protect the freed-
man in his liberty. The faith of the nation is bound to do that;
and if it cannot be done without, w'ould have authority to al
low him to come to the Federal courts in all cases.
85 See note 84, supra.
61
man.86 It is also true that a major purpose of the act of
1866 was to counteract the Black Codes,87 and although the
Rives-Powers doctrine was never put on this ground by
the Court, congressional concern over the Codes might be
thought to support the doctrine. It does not, for several
reasons.
First, the Black Codes were viewed by the 1866 Congress
as overwhelming evidence that the Southern States, unless
restrained by the federal government, would discriminate
against the Negro and deprive him of his rights; in this
light they were discussed as proof of the need for federal
action, but not as its exclusive target.88 Plainly, Congress
86 For typical Black Code provisions, see 2 Commager, Docu
ments of American History 2-7 (6th ed. 1958); 1 F leming,
Documentary History of Reconstruction 273-312 (photo reprint
1960); McPherson, P olitical History of the United States
During the Period of Reconstruction 29-44 (1871).
87 The Codes were often referred to in debate. In the Senate:
Cong. Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (Trum
bull) ; 602 (Feb. 2, 1866) (Lane), 603 (Wilson), 605 (Trumbull),
1759 (April 4, 1866) (Trumbull) ; in the House: id. 1118 (March
1, 1866) (Wilson), 1123-24 (Cook), 1151 (March 2, 1866)
(Thayer), 1160 (Windom), 1267 (March 8, 1866) (Raymond).
See also, id. at 340 (Jan. 22, 1866) (remarks of Senator Wilson on
the amendatory freedmen’s bureau bill).
88 See the portions of the debates cited in note 87 supra, espe
cially Cong. Globe, 39th Cong., 1st Sess. 603, 605, 1118, 1160.
See also id. at 744-45 (Feb. 8, 1866) (remarks of Senator Sherman
on the amendatory freedmen’s bureau bill). And see id. at 1124,
1125 (March 1, 1866) (remarks of Representative Cook) :
Can any member here say that there is any probability, or
any possibility, that these States will secure him in those
rights ? They have already spoken through their Legislatures;
we know what they will do; these acts, which have been set
aside by the military commanders, are the expressions of
their will.
* # # # #
. . . Every act of legislation, every expression of opinion
on their part proves that these people would be again enslaved
if they were not protected by the military arm of the Federal
Government; without that they would be slaves today.
62
anticipated massive Southern resistance to the Thirteenth
Amendment, resistance not alone by legislation but by
every means at southern state command.
It was easy to foresee, and of course we foresaw,
that in case this scheme of emancipation was carried
out in the rebel States it would encounter the most
vehement resistance on the part of the old slaveholders.
It was easy to look far enough into the future to per
ceive that it would be a very unwelcome measure to
them, and that they would resort to every means in
their power to prevent what they called the loss of
their property under this amendment. We could fore
see easily enough that they would use, if they should
be permitted to do so by the General Government, all
the powers of the State governments in restraining
and circumscribing the rights and privileges which are
plainly given by it to the emancipated negro.89
Second, the Black Codes which concerned Congress were
not all discriminatory and hence unconstitutional90 on their
face. Much mention was made in the debates of the South
ern vagrancy laws91 and particularly of the vagrancy law
of Virginia,92 for example, which was a color-blind statute93
89 Id. at 503 (Jan. 30, 1866) (remarks of Senator Howard).
90 The legislators who enacted the 1866 act regarded discrimina
tory legislation as unconstitutional by force of the thirteenth
amendment.
91 See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1123-24 (March 1,
1866) (remarks of Representative Cook), 1151 (March 2, 1866)
(remarks of Representative Thayer).
92 Id,, at 1160 (March 2, 1866) (remarks of Representative Win-
dom), 1759 (March 4, 1866) (remarks of Senator Trumbull).
93 See Acts of Virginia, 1865-1866, at 91 (1866) (Act of Jan. 15,
1866).
6 3
whose evil lay in its systematically discriminatory applica
tion to the Negroes.94
Third, there is affirmative evidence that Congress was
aware of and intended to redress nonstatntory denials of
federal constitutional rights. Senator Trumbull told the
Senate in his principal speech urging passage of the bill
over President Johnson’s veto:
In some communities in the South a custom prevails
by which different punishment is inflicted upon the
blacks from that meted out to whites for the same
offense. Does [section 2 of the 1866 act] . . . propose
to punish the community where the custom prevails?
Or is it to punish the person who, under color of the
custom, deprives the party of his right? It is a mani
fest perversion of the meaning of the section to assert
anything else.95
Congress knew, as we have heretofore seen, that the Union
military commanders, recognizing the susceptibility to un
fair and discriminatory application of Southern laws ap
parently fair on their faces, had taken steps to protect the
freedmen against such maladministration by the provision
of military tribunals to supersede the civil courts in freed-
94 Senator Wilson told the Senate that General Terry, as com
mander in Virginia, “seeing that the vagrant laws of that State
were used to make slaves of men whom we have made free,”
had prohibited the enforcement of the law against Negroes. Cong.
Globe, 1st Sess., 603 (Feb. 2, 1866). Terry’s order is found in
McPherson, op. cit. supra, note 86 at 41-42.
95 Cong. Globe, 39th Cong., 1st Sess. 1758 (April 4, 1866). See
also id. at 623 (Feb. 3, 1866) (remarks of Representative Kelley
on the amendatory freedmen’s bureau bill).
64
men’s cases.96 Congress adopted this policy itself in the
Amendatory Freedmen’s Bureau Act (companion legisla
tion to the Civil Rights Act of 1866),97 and it is implausible
to suppose that the permanent civil rights legislation was
intended to give the freedmen less substantial protection.
Section 3 of the Civil Rights Act provided that removal
might be had by persons “who are denied or cannot enforce
in the courts or judicial tribunals of the State or locality
where they may he any of the rights secured to them by the
first section of this act.” (Emphasis added.) This reference
to locality strongly suggests that something less than statu
tory obstruction to the enforcement of federal rights in the
State courts was thought sufficient to support removal.98
The rights enumerated in section 1, included “full and equal
benefit of all laws and proceedings for the security of per
son and property, as is enjoyed by white citizens . . . , any
law, statute, ordinance, regulation, or custom, to the con
96 See text and notes at notes 51-56, supra.
97 The Amendatory Freedmen’s Bureau Act was H. R. 613 of the
Thirty-Ninth Congress. A predecessor bill, S. 60, was introduced
by Senator Trumbull and reported by the Senator from the Judi
ciary Committee contemporaneously with S. 61, which became the
Civil Rights Act of 1866. Cong. Globe, 39th Cong., 1st Sess. 129
(Jan. 5,1866), 184 (Jan. 11,1866).
9S The “locality” provision was rephrased in Rev. Stat. §641
(1875), pp. 69-70, infra, which turned removal on the inability to
enforce federal rights “in the judicial tribunals of the State, or
in the part of the State where such suit or prosecution is pending
. . . ” This wording was carried forward in §31 of the Judicial
Code of 1911, and appears in 28 U. S. C. §74 (1940). In the 1948
revision it was “omitted as unnecessary,” Reviser’s Note, p. 70
infra, presumably on the theory that one who may remove from “a
State Court” may thereby remove from the court of any locality
of a State. The omission tokens no substantive change in the
statute.
6 5
trary notwithstanding.” (Emphasis added.)93 “Proceed
ings” was certainly intended to add something to “laws,”
and the inelnsion of reference to “custom” was not inad
vertent. Senator Trumbull several times told the Senate
that it was intended to allow removal “in all cases where
a custom prevails in a State, or where there is a statute-law
of the State discriminating against [the freedmen] . . . .”99 100
The Senator expressly said that it was not the existence of
a statute, any more than of a custom discriminating against
the freedman, that constituted such a failure of state proc
ess as would authorize removal; but in each case, custom or
statute, it was the probability that the state court would
fail adequately to enforce federal guarantees.101 Senator
Lane of Indiana similarly said that the evil to be remedied
was not unconstitutional state legislation, but the probabil
ity that the state courts would not enforce the constitu
tional rights of the freedmen.102
99 Section 1 of the 1866 act was re-enacted, with its “notwith
standing” clause, by §§16 and 18 of the Enforcement Act of 1870
Act of May 31, 1870, 16 Stat. 144. It appears in Rev. Stat. §1977
(now 42 U. S. C. §1981 (1964)), without the “notwithstanding”
clause. A similar clause was omitted by the revisers in carrying
forward §1 of the Act of April 20, 1871, 17 Stat. 13, as Rev. Stat.
§1979 (now 42 U. S. C. §1983 (1964)). In neither case does any
intention appear to effect a substantive change. The “notwithstand
ing” clauses, although indicative of legislative purpose in respect
of some applications of the statute—as here—never were effective
provisions, since the supremacy clause of the Constitution made
them unnecessary.
100 Cong. Globe, 39th Cong., 1st Sess. 1759 (April 4, 1866); id.
at 475 (Jan. 29, 1866); cf. id. at 1758 (April 4, 1866). See also
Blyew v. United States, 80 U. S. (13 Wall.) 581, 593 (1871).
101 See note 84, supra.
102 Cong. Globe, 39 Cong., 1st Sess. 602-03 (Feb. 2, 1866). See
also id. at 1265 (March 8, 1866) (remarks of Representative
Broomall).
66
One of the distinguished Senators from Kentucky [Mr.
Gnthrie] says that all these slave laws have fallen with
the emancipation of the slave. That, I doubt not, is
true, and by a court honestly constituted of able and
upright lawyers, that exposition of the constitutional
amendment would obtain.
But why do we legislate upon this subject now?
Simply because we fear and have reason to fear that
the emancipated slaves would not have their rights in
the courts of the slave States. The State courts al
ready have jurisdiction of every single question that
we propose to give to the courts of the United States.
Why then the necessity of passing the law? Simply
because we fear the execution of these laws if left to
the State courts. That is the necessity for this pro
vision.
In 1870 and 1871, Congress enacted the second and third
Civil Rights Acts.103 The 1870 statute was primarily F if
teenth Amendment legislation; it declared the right of all
otherwise qualified citizens to vote without racial discrimi
nation,104 penalized interference with the franchise,105 and
created federal civil and criminal jurisdiction in all cases
arising under the act.106 In its sixteenth and seventeenth
sections, designed to reestablish on Fourteenth Amend
ment footing the pre-Fourteenth Amendment Civil Rights
Act of 1866, it reenacted with some extensions the first and
103 Act of May 31, 1870, ch. 114, 16 Stat. 140; Act of April 20,
1871, eh. 22, 17 Stat. 13.
Act of May 31, 1870, eh. 114, §1,16 Stat. 140.
105 Act of May 31, 1870, ch. 114, §§2-7, 16 Stat. 140.
106 Act of May 31, 1870, ch. 114, §8, 16 Stat. 142.
67
second sections of that Act,107 and in its eighteenth section,
it reenacted by reference the whole of the 1866 act, “Sec
tions sixteen and seventeen hereof [to] . . . be enforced
according to the provisions of said act.”108
The 1871 statute went further, putting the remedial pro
visions of the 1866 act to broad new uses. This “Act to
enforce the Provisions of the Fourteenth Amendment . .
was designed to establish general federal civil rights juris
diction superseding state judicial processes without respect
to exhaustion of state remedies, “because, by reason of
prejudice, passion, neglect, intolerance or otherwise, state
laws might not be enforced and the claims of citizens to
the enjoyment of rights, privileges, and immunities guar
anteed by the Fourteenth Amendment might be denied by
the state agencies.”109 Its first section provided:
That any person who, under color of any law, statute,
ordinance, regulation, custom, or usage of any State,
shall subject, or cause to be subjected, any person
within the jurisdiction of the United States to the
deprivation of any rights, privileges, or immunities
secured by the Constitution of the United States, shall,
any such law, statute, ordinance, regulation, custom, or
usage of the State to the contrary notwithstanding, be
liable to the party injured in any action at law, suit
in equity, or other proper proceeding for redress; such
107 Act of May 81, 1870, eh. 114, §§16-17, 16 Stat. 144.
108 Act of May 31, 1870, ch. 114, §18, 16 Stat. .144.
109 Monroe v. Pape, 365 U. S. 167, 180 (1961). The purpose of the
1871 act to provide a federal forum for the vindication of federal
civil rights notwithstanding failure to exhaust state remedies was
reaffirmed in McNeese v. Board of Educ., 373 U. S. 668 (1963)
(alternative ground).
68
proceeding to be prosecuted in the several district or
circuit courts of the United States, with and subject
to the same rights of appeal, review upon error, and
other remedies provided in like cases in such courts,
under the provisions of the act of the ninth of April,
eighteen hundred and sixty-six, entitled “An Act to
protect all persons in the United States in their civil
rights, and to furnish the means of their vindication” ;
and the other remedial laws of the United States which
are in their nature applicable in such cases.110
Also, in 1871, Congress amended the Second Civil Eights
Act of 1870, adding detailed administrative provisions for
the enforcement of voting rights. Here again it authorized
removal of suits or prosecutions against officers or persons
acting under the amendatory statute.111
Four years later the last major Civil Eights Act of the
Nineteenth Century was enacted, affirming the right of Ne
groes to equal public accommodation. Like its predecessors,
the statute contained jurisdictional provisions making the
federal trial courts the agencies of its enforcement.112 In
the same year the Judiciary Act created general federal
question jurisdiction in original and removed civil actions,113
thereby for the first time permanently establishing a fed
eral trial forum for every litigant engaged in a significant
civil controversy based on a claim arising under the federal
110 Act of April 20, 1871, ch. 22, §1, 17 Stat. 13. These provisions
are carried forward in part in present 28 U. S. C. §1343(3) (1964);
Rev. Stat. §1979 (1875), 42 U. S. C. §1983 (1964).
111 Act of Feb. 28, 1871, ch. 99, §16, 16 Stat. 438.
112 Act of March 1,1875, ch. 114, 18 Stat. 335.
113 Act of March 3, 1875, ch. 137, §§1-2, 18 Stat. 470.
6 9
constitution and laws.114 Save for petty controversies, fed
eral trial jurisdiction was now made coextensive with the
concern for effective enforcement of national law; on the
widest front, Congress gave expression to the assumption
of Hamilton and Madison that federal judges “are more
likely to give full scope to any given Supreme Court deci
sion and particularly ones unpopular locally, than are their
state counterparts.”115
The Revised Statutes of 1875, then, carried forward ex
tensive new grants of federal trial jurisdiction created dur
ing the preceding dozen years, among them the civil rights
removal statutes, codified with some change of language in
section 641:
Sec. 641. When any civil suit or criminal prosecu
tion is commenced in any State court, for any cause
whatsoever, against any person who is denied or can
not enforce in the judicial tribunals of the State where
such suit or prosecution is pending, any right secured
to him by any law providing for the equal civil rights of
citizens of the United States, or of all persons within
the jurisdiction of the United States, or against any
officer, civil or military, or other person, for any arrest
or imprisonment or other trespasses or wrongs, made
or committed by virtue of or under color of authority
derived from any law providing for equal rights as
aforesaid, or for refusing to do any act on the ground
that it would be inconsistent with such law, such suit
or prosecution may, upon the petition of such defen
114 See 28 U. S. C. §§1331, 1441 (1964).
115 Mishkin, The Federal “Question” in the District Courts, 53
Colum. L. Rev. 157, 158 (1953).
70
dant, filed in said State court at any time before the
trial or final hearing of the cause, stating the facts
and verified by oath, be removed, for trial, into the next
circuit court to be held in the district where it is pend
ing. Upon the filing of such petition all further pro
ceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided.
In 1911, in the course of abolishing the old Circuit Courts,
Congress technically repealed Rev. Stat. §641 (Judicial
Code of 1911, ch. 231, §297, 36 Stat. 1168), but carried its
provisions forward without change (except that removal
jurisdiction was given the district courts in lieu of the cir
cuit courts) as §31 of the Judicial Code (Judicial Code of
1911, ch. 231, §31, 36 Stat. 1096). Section 31 verbatim be
came 28 U. S. C. §74 (1940), and in 1948, with changes in
phraseology, it assumed its present form as 28 U. S. C.
§1443 (1964). The reviser’s note to §1443 indicates that no
substantive changes were intended. H. R. Rep. No. 308,
80th Cong., 1st Sess. A134 (1947).
There is no blinking the message of this history. As a
result of the Reconstruction legislation, representing a
radical change of Congressional attitude toward the States
and particularly the state courts, the federal trial courts as
sumed the role in which the most foresighted members of
the Constitutional Convention had cast them—as the neces
sary, the indispensable instruments for the enforcement of
federal rights.116 The Thirteenth, Fourteenth, and Fifteenth
Amendments had now written into the Constitution broad
new national guarantees of liberty and equality, committing
116 Frankfurter & Landis, The Business o f the Supreme Court
64-65 (1927).
71
the federal government to protect the individual against
the States. The four major civil rights acts had undertaken
to establish the new liberties and each of the acts made the
federal trial courts the front line of federal protection.
Power had been given those courts in civil actions to en
join or redress every deprivation by the States of “rights,
privileges, or immunities secured by the Constitution,”
using every remedial device known to federal law.117 Habeas
corpus, “the most celebrated writ in the English law,” 118
“the great and efficacious writ in all manner of illegal con
finement,” 119 was given the federal judges “in all cases
where any person may be restrained of his or her liberty
in violation of the constitution, or of any treaty or law.” 120
No longer reluctant to disrupt state criminal prosecutions
which had proved potent instruments of harassment, Con
gress had enacted criminal removal statutes in 1863 and
1866 covering cases arising out of the Civil War, in 1864
and 1866 covering cases arising out of enforcement of the
wartime revenue acts, in 1866 covering cases of all persons
prosecuted for acts under color of authority of civil rights
law and all persons who could not enforce their newly given
civil rights in the state courts, in 1871 covering voting en
forcement cases. Plainly, it seemed that the Reconstruction
Congresses had accomplished their principal nationalizing
117 Section 1 of the Ku Klux Klan Act of 1871. See also the broad
authorization of Rev. Stat. §722 (1875), 42 U. S. C. §1988 (1964),
deriving from §3 of the first Civil Rights Act; Lefton v. Hatties
burg, 333 P. 2d 280 (5th Cir. 1964) ; Brazier v. Cherry, 293 F. 2d
401 (5th Cir.), (1961) ; Pritchard v. Smith, 289 F. 2d 153 (8th Cir.
1961).
118 3 B lackstone, Commentaries 129 (6th ed., Dublin 1775).
119 Id. at 154.
120 Act of February 5, 1867, ch. 28, §1, 14 Stat. 386.
72
purpose: the effective protection of freedoms won in battle
and secured against state action by the post-war constitu
tional amendments and statutes, through the extension of
the sheltering arm of a plenary federal trial court jurisdic
tion.
Yet what the Reconstruction Congresses had painstak
ingly achieved was beclouded by a series of decisions of
the post-Reconstruction Supreme Court of the United
States. Those decisions are far narrower than has fre
quently been supposed—all, as will be shown in the next
section of this brief, speak to a single, very limited issue—
but the opportunity which the Court’s opinions gave to the
federal district courts to disembarrass themselves of un
wanted business was widely seized upon; the district courts
extended the Supreme Court’s removal decisions unwar-
rantedly; the result was virtual judicial repeal of what is
now 28 U. S. C. §1443(1) (1964). And, because remand
orders were thought to be nonappealable between 1887 and
1964, the lower courts’ construction of the removal statute
stood and froze.
In the Civil Rights Act of 1964, congressional reaction to
that construction was expressed. With the palpable purpose
of undoing the district courts’ decisions which had made a
worthless nullity of the civil rights removal statute,121 Con
121 See, e.g., 110 Cong. R ec. 6551 (March 30, 1964) (remarks of
Senator Humphrey), 6564 (remarks of Senator Kuchel). And see
particularly id. at 6955 (April 6, 1964) (remarks of Senator
Dodd):
An examination of the legislative history of the act of 1866,
which first authorized such removals, of the language of that
act and its successors, and of the apparent congressional pur
pose clearly suggests that these old interpretations are erro
neous . . .
Accordingly the removal statute, intended by Congress to
be . . . one of the great bulwarks of equality, is of little or
73
gress made civil rights remand orders appealable.122 The
freeze was broken, and the invocation of that new appel
late jurisdiction brings the present cases to this Court.
2 . Ju dicial B a ck gro u n d
The body of this Court’s decisions dealing with civil
rights removal remains to be considered. All are concerned
with the predecessor of present 28 U. S. C. §1443(1) (1964).
The provision that is now §1443(2) has never been before
the Court.
The predecessor of §1443(1)123 was first construed by the
Supreme Court in 1880, in Strauder v. W est Virginia, 100
U. S. 303 (1880). There, the Court sustained removal on
the petition of a Negro indicted for murder in a West V ir
ginia court which alleged that by reason of an 1873 AVest
Virginia statute restricting eligibility for jury service to
white males, Negroes were excluded from grand and petit
juries in the courts of that State. Strauder was adjudged a
person who is “denied” or who “cannot enforce” his federal
equal civil rights. Since his removal petition was filed (as
no value today . . . I f an appeal is allowed from orders
to remand, the appellate courts will be able to consider what
the removal statute means and what Congress intended when
it enacted the statute.
In recent months and years a number of cases have arisen
which could properly have been removed from State to Fed
eral court if the original intention of Congress had been
permitted to govern.
122 28 U. S. C. §1447 (d), as amended by §901, Civil Eights Act
of 1964, 78 Stat. 241, 266.
123 The provision was then Eev. Stat. §641 (1875). In the con
cept presently material—the concept of a person “denied or [who]
cannot enforce” rights in the state courts—the statute has remained
unchanged from 1866 to the present.
74
it had to be) before state trial124 and was sufficient, if ever,
at that time, the Court clearly held that the potential ap
plicability of an unconstitutional state statute to his case
gave Strauder grounds for removal without inquiry into
possibility that the state courts might sustain his constitu
tional claim and void the unconstitutional state legislation,
as the supremacy clause obliged them to do. The state
statute directed the state judges to an unconstitutional
conclusion, and the Supreme Court found the conditions of
removability satisfied.
But, in Virginia v. Rives, 100 U. S. 313 (1880), decided
the same day, removal was denied. In Rives a federal trial
court assumed removal jurisdiction on a petition alleging
that petitioners were Negroes charged with murder of a
white man; that there was strong race prejudice against
them in the community; that the grand jury which indicted
them and the jurors summoned to try them were all white;
124 Bev. Stat. §641 (1875) required that a petition for removal
be filed “at any time before the trial or final hearing of the cause.”
Present 28 U. S. C. §1446 (c) (1964) requires filing “at any time
before trial.” This pretrial character of the removal procedure,
which played a significant part in the construction given the civil
rights removal statute in and following Virginia v. Rives, 100 U. S.
313 (1880), appears not to have been an incident of the procedure
authorized by the original 1866 act. That act contained no inde
pendent procedural provisions, but adopted by reference the
removal procedures of the Habeas Corpus Suspension Act of March
3, 1863, ch. 81, §5, 12 Stat. 755, 756. The 1863 act had authorized
removal either before trial, 12 Stat. 756, or after judgment, 12
Stat. 757; from the 1866 language, lo th these forms of removal
were meant to be carried over to civil rights cases. See Senator
Trumbull’s speech set out in note 84 supra. The Act of May 11,
1866, ch. 80, §3, 14 Stat. 46 amended the 1863 procedures to
authorize pretrial removal at any time before empaneling of a jury
in the state court. Although this act explicitly provided that it did
not affect post-judgment removal, Bev. Stat, §641 failed to carry
that form of removal forward in civil rights cases.
7 5
that the prosecutor and judge had refused petitioners’ re
quest that one-third of the trial jury be composed of
Negroes; that, notwithstanding the state laws required
jury service of males without discrimination of race,
Negroes had never been allowed to serve as jurors in the
county in any case in which their race was interested.
The State of Virginia sought a writ of mandamus in the
Supreme Court to compel the lower federal court to remand
the case, and the Supreme Court issued the writ. Its opin
ion, read narrowly, found that petitioners’ allegations “fall
short of showing that any civil right was denied, or that
there had been any discrimination against the defendants
because of their color or race. The facts may have been
as stated, and yet the jury which indicted them, and the
panel summoned to try them, may have been impartially
selected.” 125 126 There was wanting, as a matter of pleading
(in those early days before the Court’s experience in the
trial of jury discrimination claims bred the “prima facie”
showing doctrine),126 an allegation of purposeful or inten
tional discrimination, and the Court said that this might
have been supplied by averment that a statute of the State
barred Negroes from jury service. “When a statute of the
State denies his right, or interposes a bar to his enforcing
it, in the judicial tribunals, the presumption is fair that
they will be controlled by it in their decisions; and in such
a case a defendant may affirm on oath what is necessary
for a removal.” 127 Thus, by reason of the requirement of
125 1 00 U. S. at 322.
126 See, e.g., Norris v. Alabama, 294 U. S. 587 (1935) ; Hernandez
v. Texas, 347 U. S. 475 (1954) ; Beece v. Georgia, 350 U. S. 85
(1955) ; Eubanks v. Louisiana, 356 TJ. S. 584 (1958) ; Arnold v.
North Carolina, 376 U. S. 773 (1964).
127 100 U. S. at 321.
76
a factual showing under the removal statute that a defen
dant could not enforce his federal rights in the state court,128
the Court said that the inability to enforce federal rights of
which the removal statute speaks “is primarily, if not exclu
sively, a denial of such rights, or an inabilit}7 to enforce
them, resulting from the Constitution or laws of the State,
rather than a denial first made manifest at the trial of the
case.” 129
So construed, Rives held no more than that the removal
petitioners’ allegations were insufficient to state a claim of
unconstitutional jury discrimination under the standards
then prevailing, and its comments on the existence or non
existence of discriminatory legislation were merely specu
lation on sorts of allegations which would be sufficient. But
the case could also be read rather loosely as saying that
unless a state constitution or statute on its face denied a
defendant’s federal constitutional rights, his case was not
removable under present subsection 1443(1).130
128 But in the absence of constitutional or legislative impedi
ments he cannot swear before his case comes to trial that his
enjoyment of all his civil rights is denied to him. When he
has only an apprehension that such rights will be withheld
from him when his case comes to trial he cannot affirm that
they are actually denied, or that he cannot enforce them. Yet
such an affirmation is essential to his right to remove his case.
Id. at 320. Elsewhere the Court treated the problem as one of
showing that a defendant’s rights are denied “in the judicial
tribunals o f the State,” id. at 321 (emphasis in original), within
the meaning of the statute, merely another manner of stating the
same concern.
129 Id. at 319.
i3° rphg Qourt aig0 said; “In other words, the statute has refer
ence to a legislative denial or an inability resulting from it.” Id.
at 319-320.
77
Without adequate consideration of the point, the Court
in Neal v. D elaware131 took this latter view of Rives. Like
Rives, the Neal case involved a Negro defendant indicted
for a capital offense. His removal petition alleged that
Negroes were systematically excluded from grand and petit
juries in the state courts, and that this exclusion was by
reason of an 1831 constitutional provision of the State of
Delaware, disqualifying Negroes as electors, hence as
jurors. The Delaware court in which, pursuant to the re
moval practice then in force, Neal filed his removal peti
tion132 took the view that the 1831 provision had been ren
dered void by the supervention of the Fourteenth and
Fifteenth Amendments, so that, if there was any jury dis
crimination in Delaware—which, in any event, the Dela
ware court found that Neal had failed to prove—such dis
crimination was unauthorized by state constitution or
statute. On writ of error to the Delaware court, the Su~
131103 U. S. 370 (1881).
132 prior to 1948, removal procedure differed under the various
federal removal statutes. In a civil rights case, the petition for
removal was filed in the state court in which the case originated.
See Rev. Stat. §641 (1875), continued by Judicial Code of 1911,
§31, 36 Stat. 1096. If the state court declined to allow the removal,
exception to that ruling could be preserved for examination by
the Supreme Court of the United States on review of the final state
court judgment, as in Neal. Alternatively, petition could be made
to the federal trial court to which removal had been sought and
disallowed by the state court, and that court might effect the
removal by issuance of process which terminated the state pro
ceeding, as in Rives. See the description of similar procedures in
Metropolitan Cos. Ins. Co. v. Stevens, 312 U. S. 563 (1941).
The 1948 Code revision made removal practice uniform; under
the uniform procedure, the petition for removal is filed in the
first instance in the federal district court to which removal is
sought, and this filing (with appropriate service on the state court
and opposing party) effects removal, ousting the state court of
jurisdiction unless and until the federal court remands. 28 U. S. C.
§§1446-47 (1964).
7 8
preme Court disagreed that Neal had failed to show sys
tematic exclusion of Negroes from the grand jury, and it
reversed Neal’s conviction for error in overruling his mo
tion to quash the indictment and jury panels. But the Su
preme Court agreed with the court below that this discrimi
nation was unauthorized by statute and, in extended dictum,
sustained denial of the removal petition. As the Court read
Strauder and Rives, those cases held
that the constitutional amendment was broader than
the provisions of sect. 641 [present subsection 1443(1)]
. . . ; that since that section only authorized a re
moval before trial, it did not embrace a case in which
a right is denied by judicial action during the trial, or
in the sentence, or in the mode of executing the sen
tence; that for denials, arising from judicial action,
after the trial commenced, the remedy lay in the re
visory power of the higher courts of the State, and,
ultimately, in the power of review which this court may
exercise over their judgments, whenever rights, privi
leges, or immunities, secured by the Constitution or
laws of the United States, are withheld or violated;
and that the denial or inability to enforce in the judicial
tribunals of the States, rights secured by any law pro
viding for the equal civil rights of citizens of the United
'States, to which sect. 641 refers, is, primarily, if not
exclusively, a denial of such rights, or an inability to
enforce them, resulting from the Constitution or laws
of the State, rather than a denial first made manifest
at the trial of the case. We held that Congress had not
authorized a removal where jury commissioners or
other subordinate officers had, without authority de
rived from the Constitution and laws of the State,
79
excluded colored citizens from juries because of their
race. (103 U. S. at 386-87.)
“The essential question, therefore,” said the Court, was
whether Negroes were excluded from Delaware juries “by
reason of the Constitution and laws of Delaware” ; 133 and,
finding that “the alleged discrimination in the State of
Delaware, against citizens of the African race, in the mat
ter of service on juries, does not result from her Constitu
tion and laws,” 134 the Court ruled removal unauthorized.
This ruling was repeated in a series of substantially iden
tical cases at the end of the nineteenth century. In each
case the defendant was a Negro charged with murder in a
state court who based his removal petition upon allegations
of systematic exclusion of Negroes from the grand and
petit juries. In Gibson v. Mississippi, 162 U. S. 565 (1896);
Smith v. M ississippi, 162 U. S. 592 (1896); and Murray v.
Louisiana, 163 U. S. 101 (1896), it was alleged that this
exclusion was practiced by local officials without authority
of statute or state constitution. Smith and Murray moved
to quash the indictment, petitioned the state court for re
moval, and challenged the venire or panel of trial jurors,
all on the same equal protection grounds. Gibson did not
move to quash the indictment but did petition for removal
and challenged the petit jury. In all three cases, this
Court affirmed the convictions, sustaining the denial of
the removal petitions on the ground that no state statute or
constitution denied the defendants their equal civil rights,
and sustaining denial of the respective motions to quash or
133 Id. at 387.
134 Id. at 389.
80
challenges to the petit jury on the ground that no sufficient
case of discrimination was established. The Gibson and
Murray opinions repeated substantially the passage from
N eal quoted above, and Smith relied on Gibson.
In Bush v. Kentucky, 107 U. S. 110 (1883), the exclusion
of Negro jurors was allegedly practiced under an 1873 Ken
tucky statute making only whites competent to serve as
grand and petit jurors. Motions to quash the indictment,
petitions for removal, and a challenge to the panel of petit
jurors (the last being formally inadequate to raise a federal
claim) were made and overruled. On review, this Court
found that prior to Bush’s indictment and trial the Ken
tucky Court of Appeals had declared the 1873 statute un
constitutional and void; the ruling put Bush in a posture
identical to Neal’s in Delaware, and the Court sustained
denial of the removal petition on authority of Neal. As in
Neal, the Court found the claim of grand jury discrimina
tion supported on the record and reversed the conviction
for error in denying the motion to quash.
In Williams v. M ississippi, 170 U. S. 213 (1898), defen
dant claimed not merely that administrative officials had
systematically excluded Negroes from juries, but also that
the provisions of the Mississippi constitution and statute
prescribing the procedures for qualifying electors and
jurors (only electors being competent jurors) were
but a scheme on the part of the framers of that con
stitution to abridge the suffrage of the colored elec
tors in the State of Mississippi on account of the previ
ous condition of servitude by granting a discretion
to the said officers as mentioned in the several sections
of the constitution of the State and the statute of the
81
State adopted under the said constitution, the use of
said [sic: which] discretion can be and has been used
in the said . . . County to the end complained of. (Id.
at 214.)
It was alleged that the constitution was drawn by a con
stitutional convention of 133 white and one Negro members,
which refused to submit the new constitution to popular
vote for adoption, because of the heavy preponderance of
Negro voters qualified under prior law; and that the legis
lature acted immediately under the new constitution, with
a purpose to discriminate against Negroes in the franchise,
by passing a statute which gave local election managers
wide discretion in judging the qualifications of persons reg
istering to vote. Motions to quash the indictment and for
removal were made and denied. Williams was convicted;
the Mississippi Supreme Court and the Supreme Court of
the United States affirmed. Sustaining denial of the motion
for removal, the Court began by quoting from Gibson the
standard paragraph from Neal. It noted that no claim was
made that the Mississippi constitution or statute was dis
criminatory on its face; and it concluded that the well-
pleaded factual averments of the defendant’s motions failed
to present “sufficient allegation of an evil and discrimi
nating administration” of the State’s laws. 170 U. S. at
222. On these grounds, the motion to quash, as well as
that for removal, was held correctly denied.
Obviously, as a technical matter, none of the cases after
Rives held or could hold anything on the question of con
struction of the removal statute. Each case came to this
Court on review of state court judgments of conviction (see
note 132 su p ra ) ; in each, the same jury-exclusion claim
8 2
which was the basis for a removal petition was, on an
identical record, the basis for a motion to quash or other
attack on the grand or petit jury; where (as in all cases
save Bush and Neal) this Court affirmed, it necessarily
rejected the jury-exclusion claim on substantive grounds
and therefore made it unnecessary to decide whether a valid
claim of this sort would sustain removal; and where (as
in Bush and N eal) this Court reversed on grounds that the
substantive claim supported a motion to quash, rejection
of the removal claim was equally unnecessary to decision.
Rives itself—the only responsible holding on the issue of
removal—was, of course, ambiguous. Notwithstanding this,
by 1898 the Court clearly supposed it had long since settled
that removal under present §1443(1) was allowable only
on a claim of facial unconstitutionality of a state statute
or constitutional provision.
In Kentucky v. Powers, 201 U. S. 1 (1906), the Court
handed down its last decision discussing the removal sec
tion.135 Following three trials for murder in a Kentucky
court, each resulting in conviction reversed on appeal by
the Kentucky Court of Appeals, Powers, prior to his fourth
trial, filed his petition alleging (1) that the killing with
which he was charged had occurred during the course of a
135 Between 1887 and 1964 it was generally supposed that orders
of a lower federal court remanding to a state court proceedings
sought to be removed from it were not reviewable by the federal
appellate courts. See Act of March 3, 1887, ch. 373, §2, 24 Stat.
553, as amended, Act of Aug. 13, 1888, ch. 8 6 6 , 25 Stat, 435.
Preservation of a removal point through state appeals following
adverse final judgment, was generally bootless, for the reason that
it added nothing to other federal claims so preserved. When the
lower courts began to deny civil rights removal generally on the
authority of Powers and its immediate predecessors, there was
therefore no occasion for Supreme Court consideration of the issues
decided below.
8 3
factional dispute, accompanied by widespread political ex
citement and animosity, involving contested elections for
all of the major state offices; (2) that Powers had been the
Republican candidate for secretary of state; one Taylor
the Republican candidate for governor; and Goebel, the
man with whose murder Powers was charged, the Demo
cratic candidate for governor; (3) that Goebel’s killing
aroused intense hostility toward Powers on the part of
Goebel Democrats and inflamed them against him; and
that this hostility continued throughout his three trials and
still existed; (4) that in each of Powers’ three trials the
sheriff and deputies charged with jury selection, all being
Goebel Democrats, connived with the trial judge to violate
the regular state procedures for selecting juries, and instead
systematically excluded Republicans and Independents from
the jury panels and selected Goebel Democrats for the pur
pose of assuring Powers’ conviction; (5) that the judge at
each trial denied Powers’ requests that the jury be selected
equally from both political parties (approximating the
roughly equal popular vote each had polled at the last elec
tion), or that the jury be selected without reference to
party, and overruled Powers’ objections to jurors selected
by systematic exclusion of Republicans and Independents;
(6) that on each appeal, by force of a Kentucky statute
which made certain trial court rulings unreviewable, the
Kentucky Court of Appeals had held it had no power to
upset the trial judge’s rulings on the jurors-—which deci
sions were the law of the case and as binding on the Ken
tucky courts as statutes; (7) that at each trial, Powers had
pleaded in bar a pardon issued to him by Governor Tay
lor, who at the time of its issuance was the duly elected
and acting governor of the State; that the trial judge had
refused to admit the pardon as a defense (this being the
84
first time in Kentucky jurisprudence that a Kentucky court
refused to give effect to an executive pardon); and on each
appeal the court of appeals had sustained this ruling—
which decisions also were the law of the case and binding
on the Kentucky courts; (8) that Powers was confined in
jail without bail awaiting a fourth trial and for all the fore
going reasons was unable to obtain a fair trial in the Ken
tucky courts.136 The lower federal court assumed jurisdic
tion on removal, concluding
that the prior action of the Scott Circuit Court deny
ing the defendant the equal protection of the laws is
a real hindrance and obstacle to his asserting his right
thereto in a future trial therein—just as real as an un
constitutional statute would be—and that the defendant
is denied the equal protection of the laws in said court,
within the meaning of said section, and entitled to a
removal on account thereof.137
On the State’s appeal and petition for mandamus, this
Court held that such a ruling was error, that removal was
improper, and it ordered the case remanded to the state
court. The Court noted that, notwithstanding the state
court of appeals would not entertain Powers’ claims of
denial of his federal rights, review of those claims could
be had by writ of error issued from this Court to the
136 Although this fact is not mentioned in the Supreme Court’s
opinion, it appears that each of the previous reversals of Powers’
convictions by the Court of Appeals of Kentucky had been by 4-3
vote of that court; that, following the third reversal one judge
who had on each occasion voted to reverse retired from the bench,
and was succeeded by the judge who had presided at each of
Powers’ first two trials. See Kentucky v. Powers, 139 Fed. 452,
458-59 (C. C. E. D. Ky. 1905), rev’d 201 U. S. 1 (1906).
137 139 Fed. at 487.
8 5
state trial court after conviction. And as the Court read
its earlier cases, those cases
expressly held that there was no right of rem oval un
der section 641, where the alleged discrimination against
the accused, in respect of his equal rights, was due
to the illegal or corrupt acts of administrative officers,
unauthorized by the constitution or laws of the State,
as interpreted by its highest court. For wrongs of
that character the remedy, it was held, is in the state
court, and ultimately in the power of this court, upon
writ of error, to protect any right secured or granted
to an accused by the Constitution or laws of the United
States, and which has been denied to him in the highest
court of the State in which the decision, in respect of
that right, could be had.138
For almost sixty years after Powers, the lower federal
courts consistently held that unless a state constitutional
or statutory provision unconstitutional on its face was
alleged to deprive a defendant of his federal rights, re
moval under present section 1443(1) was unauthorized.139
138 201 U. S. at 31.
139 Hull v. Jackson County Circuit Court, 138 F. 2d 820 (6 th
Cir. 1943) (alternative ground) (prejudiced judge in state post
conviction proceeding, semble) ; Maryland v. Kurek, 233 F. Supp.
431 (D. Md. 1964) (denial of speedy trial) ; North Carolina v.
Alston, 227 F. Supp. 887 (M. D. N. C. 1964) (trespass charges
unconstitutional under equal protection clause as applied to sit-ins;
state supreme court has previously rejected this claim) ; City of
Clarksdale v. Gertge, 237 F. Supp. 213 (N. D. Miss. 1964) (prose
cution of civil rights worker for taking photographs in city hall
without mayor’s permission is designed to harass voter registration;
hostile and racially discriminatory state courts; Negro exclusion
from juries and from electorate electing state judges) ; In re
Kaminetsky, 234 F. Supp. 991 (B. D. N. Y. 1964) (state contempt
8 6
The decision below, in the exercise of the appellate juris
diction given by the Civil Rights Act of 1964, was the first
to distinguish Pow ers and to authorize removal in the
absence of a facially unconstitutional state statute.140
proceeding will compel self-incriminating testimony) ; Arkansas
v. Howard, 218 F. Supp. 626 (E. D. Ark. 1963) (hostile and
racially prejudiced prosecutor and community; discriminatory
prosecution; Negro jury exclusion; offense charged for conduct
protected by federal court order); City o f Birmingham v. Croskey,
217 F. Supp. 947 (N. D. Ala. 1963) (state policy of racial dis
crimination ; Negro exclusion from juries and electorate electing
state judges; jury hostility; charges void for vagueness and
unconstitutional as applied apparently on first amendment and
equal protection grounds) ; Van Newkirk v. District Attorney, 213
F . Supp. 61 (E. D, N. Y. 1963) (trial delay and pretrial hospital
commitment without hearing) ; Petition o f Hagewood, 200 F. Supp.
140 (E. ,D Mich. 1961) (prejudiced jury and trial judge; dis
criminatory enforcement of recidivist statute; various procedural
errors) ; Band, v. Arkansas, 191 F. Supp. 20 (W. D. Ark. 1961)
(prejudiced jury) ; Hill v. Pennsylvania, 183 F. Supp. 126 (W. D.
Pa. 1960) (alternative ground) (denial of speedy trial) ; Louisiana
v. Murphy, 173 F . Supp. 782 (W. D. La. 1959) (charge under
licensing statute discriminatorily administered); Texas v. Dorris,
165 F. Supp. 738 (S. D. Tex. 1958) (prosecutor, judge, and jury
controlled by complainant) ; California v. Lamson, 12 F. Supp. 813
(N. D. Cal.), petition for leave to appeal denied, 80 F. 2d 388
(Wilbur, Circuit Judge, 1935) (prejudiced jury) ; New Jersey v.
Weinberger, 38 F. 2d 298 (D. N. J . 1930) (prejudiced trial judge).
And see California v. Chue Fan, 42 Fed. 865 (C. C. N. D. Cal.
1890), and Ex parte Wells, 29 Fed. Cas. 633 (No. 17368) (Bradley,
Circuit Justice, 1878), anticipating Powers.
Even claims that the statute under which the defendant was
charged was facially unconstitutional were held insufficient to
support removal in Snypp v. Ohio, 70 F. 2d 535 (6 th Cir. 1934)
(alternative ground) (Blue Sky law), and North Carolina v.
Jackson, 135 F. Supp. 682 (M. D. N. C. 1955) (statute requiring
racial segregation on buses), on the ground that it was not shown
that the state courts would not fairly entertain the federal claim.
140 The decision below has been followed in this regard by Rob
inson v. Florida, 345 F. 2d 133 (5th Cir. 1965) ; Peacock v. City
of Greenwood, 347 F. 2d 679 (5th Cir. 1965) ; Cox v. Louisiana,
348 F. 2d 750 (5th Cir. 1965) ; Wechsler v. County o f Gadsden,
351 F. 2d 311 (5th Cir. 1965) ■ McNair v. City o f Drew, 351 F . 2d
8 7
B. T h e C o n tra c t io n o f 2 8 U. S. C. § 1 4 4 3
28 U. S. C. §1443 (1964) provides:
§1443. Civil Rights Cases.
Any of the following civil actions or criminal prose
cutions, commenced in a State court may be removed
by the defendant to the district court of the United
States for the district and division embracing the place
wherein it is pending:
(1) Against any person who is denied or cannot
enforce in the courts of such State a right under any
law providing for the equal civil rights of citizens
of the United States, or of all persons within the
jurisdiction thereof;
(2) For any act under color of authority derived
from any law providing for equal rights, or for re
fusing to do any act on the ground that it would be
inconsistent with such law.
In their petition for removal, defendants invoked both
subsections of the statute, asserting that they were denied
and could not enforce in the Georgia courts certain federal
rights (R. 4), and that they were being prosecuted for acts
under color of authority of federal law providing for those
rights {ibid.). The rights referred to did not include those
498 (5th Cir. 1965) ; Galloway v. City o f Columbus, 5th Cir., No.
22935, decided November 24, 1965; Cooper v. Alabama, 5th Cir.,
No. 22424, decided December 6 , 1965; and, e.g., Alabama v. Boyn
ton, S. D. Ala., C. A. No. 3560-65, decided April 16, 1965; In re
Wright, M. D. Ala., Cr. No. 11739N, decided August 3, 1965;
McMeans v. Mayor’s Court o f Fort Deposit, M. D. Ala., Cr. No.
11759N, decided September 30, 1965; Hughley v. City o f Opelika,
M. D. Ala., Cr. No. 2319E, decided Nov. 19, 1965.
8 8
given by the public accommodations title of the Civil Rights
Act of 1964, which had not been passed at the time of filing
of the petition. Nevertheless, by virtue of this Court’s
decision in Hamm v. City o f Rock Hill, 379 IT. S. 306
(1964), the court of appeals read the petition in light of
the supervening rights given by that title; it held that
the petition sufficiently alleged that the trespass prosecu
tions sought to be removed were based upon defendants’
failure to leave covered establishments whose owners re
fused them service solely on account of race; it concluded
that the maintenance of such prosecutions denied defen
dants’ rights, and made them unable to enforce rights, pro
vided by sections 201 and 203 of the act; and it therefore
sustained removal under §1443(1), without reaching any
question of the application of §1443(2). Georgia has not
challenged here the propriety of the court of appeals’ in
voking the public accommodations provisions of the 1964
act, if the factual allegations of the petition adequately
bring defendants within the protection of those sections.141
Nor does it contend that the public accommodations title of
the Civil Rights Act of 1964 is not a “law providing for
equal rights” within §1443(2), or that the rights given by
sections 201 and 203 are not rights “under any law provid
ing for the equal civil rights of citizens . . . or of all per
sons” within §1443(1). These issues seem hardly question
able.142 Georgia does contend, however, that, consistently
141 Georgia does contend that the allegations are inadequate. This
contention is addressed in Part I I I of this brief, infra.
142 eour ̂ 0f appeals was plainly right in testing the suffi
ciency of the petition in light of the public accommodations title
of the Civil Rights Act of 1964. If the petition’s factual allega
tions brought defendants within the protection of that title as con
strued in Hamm, no reason appears for denying them its benefit.
Surely, after the supervening statute, the court of appeals might
with Rives and Powers, the defendants cannot he said to
be denied or unable to enforce their rights (§1443(1))
unless the statute under which they are charged is uncon-
have remanded the case to permit amendment of the petition, cf.
Maryland v. Soper (No. 1), 270 U. S. 9, 36 (1926) ; but this would
have been a wasted and profitless procedure. Under the notice
pleading provisions of 28 U. S. C. §1446 (a) (1964), see Part I II
infra, a petition filed after the passage of the public accommoda
tions title and “containing a short and plain statement of the facts
which entitle [the petitioners] . . . to removal” under the title
would not be deficient for lack of a statutory citation; and the
same petition cannot be the less sufficient because filed before the
title was enacted.
The court of appeals was also plainly right in holding that the
public accommodations title of the Civil Rights Act of 1964 is a
“law providing for the equal civil rights of citizens . . . or of all per
sons,” within §1443(1), and a “law providing for equal rights”
within §1443(2). (The two phrases have the same meaning. See
Amsterdam, Criminal Prosecutions Affecting Federally Guaran
teed Civil B ights: F ederal Removal and Habeas Corpus Jurisdic
tion to Abort State Court Trial, 113 U. P a . L. R e v . 793, 864 n.
270 (1965).) The construction of the quoted language is at issue
in several cases now pending in this Court, e.g., City of Chester v.
Anderson, 347 F . 2d 823 (3d Cir. 1965), petition for certiorari
filed as 0 . T. 1965, No. 443, and in numerous others now in the
lower federal courts; but neither those authorities which have
given it a narrow compass nor those who view it more liberally have
supported any meaning which would not include the Civil Rights
Act of 1964. Compare New York v. Galamison, 342 F. 2d 255, 268
(1965), with Amsterdam, supra, at 869. Since the act’s inclusion
is clear and is not challenged by Georgia in this case, further dis
cussion here seems unnecessary. Defendants’ counsel, however—
being counsel in a number of cases in the lower courts as well as
in the Anderson case, supra—hope this Court will not think it
amiss for them respectfully to suggest that the Court’s opinion here
can avoid any risk of improper inference possibly affecting those
cases if the opinion makes it clear that no issue is contested in the
present ease requiring decision of the question what federal laws
are laws “providing for . . . equal rights” within §1443. The num
ber of cases in the courts below, and the eagerness of those courts
for enlightenment with respect to the several unsettled issues of
construction of the civil rights removal statute makes it particu
larly likely that any opinion of this Court discussing §1443 will be
taken to shed light on those issues far beyond its intendment.
90
stitutional on its face—or unless, at least, it is alleged that
the Georgia courts will not fairly enforce those rights.
And it asserts that defendants’ act in the exercise of rights
given by the public accommodations title are not
thereby “under color of authority derived from” that title
(§1443(2)). Both contentions are untenable.
1. T h e C ourt o f A ppeals C orrectly H eld That P erso n s P ro se
cuted fo r E xercisin g T h e ir R ight to E qu a l P ublic A cco m
m odations U n d er the Civil Rights Act o f 1 9 6 4 A re T h ereb y
D enied and U nable to E n fo rc e T h o se R ights , W ithin the
M eaning o f § 1 4 4 3 ( 1 ) , Notwithstanding the Statutes U n d er
lying the Prosecutions A re Not Unconstitutional on T h e ir
F a ce and the State Courts A re Not A lleged to B e U nfair.
Georgia argues that this Court’s decisions from Vir
ginia v. Rives to Kentucky v. Pow ers disallow removal
under present §1443(1) unless a criminal defendant seeking
to remove can point to some state statutory or constitu
tional provision, applicable to his prosecution in the state
courts, which is unconstitutional on its face (Br. 30, 31-
34, 42-43, 46). These decisions, the State urges, have lim
ited the denials of and the inabilities to enforce federal
rights, of which the statute speaks, to denials and inabil
ities by reason of facially unconstitutional state legislation.
Any inquiry concerning application of the Rives-Powers
doctrine to this case must begin with inquiry into the na
ture and provenience of that doctrine.
Nothing in the language of §1443(1) as it now is or ever
was written supports the limitation of its operation to
instances of state legislation which on its face denies fed
eral rights. Indeed, the wording of the original 1866 en
actment strongly suggests that no such, limitation was
intended, see pp. 64-65 supra, and the pertinent legislative
91
history is plain as a pikestaff against the limitation, see
pjj. 56-66 supra. Experience has not suggested that statu
tory denials of federal civil rights are more numerous or
more grievous than non-statutory denials; to the contrary,
as Senator Dodd recently put it, “by far the most serious
denials of equal rights occur as a result not of statutes
which deny equal rights upon their face, but as a result of
unconstitutional and invidiously discriminatory adminis
tration of such statutes.” 110 Cong. Rec. 6955 (April 6,
1961). The obvious justification for congressional creation
of a federal trial jurisdiction on removal is not that facially
unconstitutional state statutes may be so declared. Such
statutes, bearing their defect in the written word, have
been and can always be readily disarmed by this Court
on direct review of the final judgments of the state
courts.143 Rem oval is needed and justified to ward against
impingements on federal rights which are less obvious,
143 This Court’s jurisdiction on direct review was mandatory in
such eases under the First Judiciary Act, of 1789, and continued
so under the 1867 amendatory act. Act of Feb. 5, 1867, eh. 28, §2,
14 Stat. 386. Since the Act of Sept. 6 , 1916, ch. 448, §2, 39 Stat. 726,
the Court has mandatory jurisdiction by appeal to review the judg
ment of the highest court of a State in which decision can be had in
any case in which that court sustains a state statute against federal
constitutional challenge, 28 U. S. C. §1257(2) (1964) ; the Court’s
jurisdiction to review eases in which a state court has rejected
a federal constitutional claim not involving challenge to a state
statute is limited to certiorari, 28 U. S. C. §1257(3) (1964). Under
this pattern, there is all the more reason why a state criminal
defendant who demonstrates that there exists a non-statutory bar
to effective enforcement of his federal rights in the state courts
should be permitted removal; unlike the defendant whose claim
of deprivation of federal rights is directed against a state statute,
he has no review as of right by this Court if he remains in the state
system. (The workings of the Court’s appeal and certiorari juris
diction, dating from 1916, were given significant consideration in
Fay v. Noia, 372 U. S. 391, 412-13 (1963), in applying 1867 habeas
corpus legislation.)
92
more immune against appellate correction, as where state
court hostility to a federal claim, or bias against its claim
ant, warp the process by which the facts underlying the
claim are found. This is the case where local prejudice,
local resistance, pitch the risk of error, always incident in
fact finding,144 strongly against federal contentions; it was
to meet such situations that Congress had utilized removal
prior to 1866145 and utilized it in civil rights cases in and
after that year.146
The construction put on the removal statute by the Hives-
Pow ers line of cases, therefore, has no very evident cre
dentials of history or reason. Nor are its credentials of
authority much better. Beginning as an ambiguous ob
servation in Rives (see pp. 75-76 supra), translated into
rigid doctrine by a series of opinions which neither needed
to discuss the question nor undertook to cast much illumina
tion on it (see pp. 77-82 supra), and finally treated in
Pow ers as long settled (see pp. 82-85 supra), the doctrine
lacks the support of any single, decisive exposition by this
Court. The Court’s only attempts to explain it, in Rives
and N eal v. Delaware, have consisted of the reasoning that
(a) Congress, in authorizing removal before trial on a
showing of denial or inability to enforce federal civil rights,
must have meant by those terms some sort of denial or
inability which could ordinarily be shown before tria l; that
(b) prior to state trial, a removal petitioner cannot ordi
narily show that he will be denied or unable to enforce
144 See Townsend v. Sain, 372 U. S. 293, 312 (1963); England
V. Louisiana State Board of Medical Examiners, 375 U. S. 411,
416-417 (1964).
145 See pp. 39-44, supra.
146 See pp. 44-68, 70-72, supra.
9 3
Ms federal civil rights in the state courts, unless those
rights are explicitly repudiated by state legislation; there
fo re that (c) the denial or inability intended was a denial
or inability occasioned by facially unconstitutional state
legislation. Both premises of the syllogism are manifestly
defective. The first ignores the circumstance that the statu
tory language “are denied or cannot enforce” derives from
the 1866 act, which permitted removal both before and
after state trial.147 Omission of the post-trial removal
provision in the 1875 Revised Statutes may have made
the necessary showing of denial or inability more difficult
by precipitating the time when denial or inability had to
be shown, but it hardly provides a basis for inference as
to what constitutes denial or inability. The second premise
—that, absent legislation, it cannot be known what a state
court will do—simply confounds the common law tradition
and daily legal experience. Strauder had authorized re
moval on less than absolute certitude that federal civil
rights would be denied—that is, notwithstanding the possi
bility that the West Virginia judges, obedient to the su
premacy clause, would void unconstitutional state legisla
tion. Surely the same degree of certitude is attainable in
situations where no facially unconstitutional state legisla
tion is involved.
I f the Rives-Pow ers doctrine is explicable, it is so only
as the resolution of an intensely practical difficulty. What
ever the original form of the removal statute, the statute
as it came before the Court in Rives and later cases per
mitted removal exclusively before state trial. The difficulty
lay in determining how a removal petitioner’s denial of or
147 See note 124 supra.
94
inability to enforce bis federal civil rights could be litigated
at this stage. Several alternatives were open to the Court.
I t might have said that the state courts would always be
presumed responsive to their Supremacy Clause obliga
tions, hence that no state defendant was denied his federal
rights so long as those courts might entertain his claim
for their vindication. This approach would read Strauder
and the removal statute together off the books. I t might
have said that the federal district court to which removal
was sought should take evidence on the issue of the actual
probability that the state judges would disobey the su
premacy clause—the probability, that is, that they would
not fairly entertain defendant’s federal claims. This ap
proach would usually require an extended evidentiary hear
ing in the federal court on a complicated and speculative
factual question—itself an undesirable practice for resolv
ing a preliminary question of jurisdiction—and, in addition
would plunge the federal judges into an embarrassing and
politically unfeasible trial of the constitutional fidelity of
their state counterparts. Or the Court might have said
that a state litigation was removable whenever a federal
civil rights issue could possibly arise in it and whenever
the state judges could possibly resolve it wrongly against
the defendant. This would have made the federal removal
jurisdiction virtually coextensive with the state criminal
process, and carried off many civil cases as well.
Faced with the various unpalatable alternatives, the
Court seems to have hit upon an unsatisfactory but neces
sary compromise: removal was to be allowed whenever
state courts would probably deny a federal civil right; but
the sole acceptable-—and at the same time wholly sufficient
-—showing of such probability was the existence of a facially
9 5
unconstitutional state statute. Protracted preliminary liti
gation of the jurisdictional question was thus avoided; trial
of state judges by federal judges eschewed; some little
piece of the civil rights removal statute preserved.
Defendants need not in this case ask reconsideration of
the Bives-Pow ers compromise. For the compromise struck
in those cases was struck with respect to a very different
sort of federal civil right than they claim here. With
monotonous sameness the cases from Rives to Pow ers are
concerned with a single substantial federal right: the right
against systematic discrimination in jury selection. That is
a federal procedural guarantee, a right or immunity against
a particular form of state judicial proceeding. By contrast,
defendants here claim denial of a federal substantive right
or immunity, an insulation against the underlying state
criminal charge which is the basis of the prosecution. The
difference between this case and Bives-Pow ers is critical
for several reasons. Those reasons, we submit, compel the
conclusion that defendants prosecuted for the exercise of
the rights to equal public accommodations granted by the
Civil Eights Act of 1964 may remove the prosecutions to a
Federal District Court whether the statute under which they
are charged violates those rights on its face or as applied.
First, the sort of procedural right involved in Bives-
Pow ers is essentially a guarantee against conviction in a
proceeding in which certain federally required procedures
are not followed. The sort of substantive right involved
here is a guarantee against prosecution. Section 201 of the
Civil Eights Act of 1964 gives the defendants a right to
equal service in places of public accommodation. Section
203 gives them a right against intimidation or coercion,
punishment or any “attempt to punish” them in respect of
96
their exercise of rights under section 201. It is these rights
which they claim they are denied and cannot enforce by
reason of the pending state prosecution against them.
These rights—unlike the Rives-Pow ers right against con
viction without constitutional process—may be denied or
rendered unenforcible by the very fact of prosecution, an
terior to and irrespective of conviction. As the Fifth Cir
cuit has said in a related context, under the Civil Rights
Act of 1964 the defendants “simply may not be punished
and prosecution is punishment.” Dihvorth v. Riner, 343 F.
2d 226, 231 (5th Cir. 1965).
The truth of the observation that prosecution for a
federally protected act is punishment for that act should
be obvious. Persons under prosecution are restrained of
their liberty pending trial and appeal, or in the alternative
compelled to post financial security for their appearance.
I f professional bonds are not available or availed of, their
property or that of their friends and relatives is encum
bered; if available and availed of, a defendant pays suc
cessive fines—in the form of irrecoverable bond premiums
—as the cost of proceeding court by court until his federal
claim is recognized. The defendant’s time and money—if
he has it—and those of his lawyers are eaten up by his
defense. In the course of the proceeding, he is exposed to
further risks of penalty by hostile courts: contempt pro
ceedings for procedural defaults; perjury prosecutions
whose success depends on trials of credibility. His misstep
or his lawyer’s in their progress through the criminal pro
ceeding may default or forfeit his substantively valid fed
eral claim; or that claim, valid in fact, may be destroyed
by unsympathetic but unreviewable adverse fact-finding
by the state courts. In any event, as unresolved criminal
97
charges hang over his head for years,148 his mobility, ac
ceptability at educational and other institutions (including
the national armed services), eligibility for various state-
conferred benefits, and willingness to risk the further dis
pleasure of the state authorities are clogged.149
Second, as this last consideration makes evident, much
more is involved in a prosecution aimed at conduct pro
tected by substantive federal guarantees than the punish
ment of an individual defendant for a single past act or
occurrence. The design and inevitable consequence of such
a prosecution is to deter the defendant and all others like
him from engaging in the sort of conduct with which he
is charged—to “intimidate . . . or coerce” them, in the
words of section 203 of the Civil Rights Act of 1964, from
engaging in the conduct which it is the purpose of federal
law to protect. In numerous contexts involving federal
guarantees of personal freedoms, this Court has recognized
that “The threat of sanctions may deter their exercise
almost as potently as the actual application of sanctions.”
N.A.A.C.P. v. Button, 371 U. S. 415, 433 (1963); see
Smith v. California, 361 U. S. 147, 151 (1959); Cramp v.
148 In February and March, 1964, the Supreme Court of Mis
sissippi reached, and affirmed, convictions in harassment prosecu
tions arising out of the May, 1961 Freedom Rides. See Thomas v.
State, 160 So. 2d 657 (Miss. 1964) ; Farm er v. State, 161 So. 2d
159 (Miss. 1964), and companion cases,- Knight v. State, 161 So. 2d
521 (Miss. 1964). And more than another year was to pass before
the Supreme Court of the United States reached, and reversed,
these convictions. Thomas v. Mississippi, 380 U. S. 524 (1965).
Compare Edwards v. South Carolina, 372 U. S. 229 (1963) (two
years from arrest to Supreme Court reversal of conviction) ; Fields
v. South Carolina, 375 U. S. 44 (1963) (three and a half years
from arrest to Supreme Court reversal of conviction); Henry v.
Bock Hill, 376 U. S. 776 (1964) (more than four years from arrest
to Supreme Court reversal of conviction).
149 See Amsterdam, note 142 supra, at 796-799.
98
B oard o f Public Instruction, 368 U. S. 278, 286-288 (1961);
Bantam Boohs, Inc. v. Sullivan, 372 U. S. 58, 66-70 (1963) ;
Baggett v. Bullitt, 377 IT. S. 360, 378-379 (1964). Indeed,
a cardinal objective of the criminal law is just this sort
of general deterrence. Particularly during the pendency of
a prosecution, the assertion of state prohibitive power
which it embodies and advertises overhangs, threatens and
represses conduct of the kind prosecuted. Federal protec
tion of the conduct, if it is to be meaningful, must include
protection against this repression. “The assumption that
defense of a criminal prosecution will generally assure
ample vindication of constitutional rights is unfounded in
such cases.” Dombrowshi v. Pfister, 380 U. S. 479, 486
(1965).150
Congress, by the Civil Rights Act of 1964, has given
Negroes the right to equal service in restaurants, the
right to sit and eat in Leb’s and in the Ship Ahoy of
Atlanta. It has given them the right to enter, sit and eat
without fear of prosecution or intimidation. It is these
rights, not the right to have a trespass conviction reversed
by the Supreme Court of Georgia or the Supreme Court
of the United States long after they have been excluded
from Leb’s and from the Ship Ahoy which the present
prosecutions threaten. It is these rights—unlike the rights
of criminal procedure involved in the Rives-Powers de
cisions—which must be vindicated immediately, vindicated
i5° caseg cited in text all involve First Amendment freedoms
which, as this Court has recognized, are freedoms of particular
vulnerability and significance requiring extraordinary protection
against repression. But Congress in the Civil Rights Act of 1964
has made the judgment that the rights to equal public accommoda
tions protected by that act are similarly vulnerable and significant;
hence, section 203 of the act, casting about them a broad range
of insulation.
99
by entire insulation from the state criminal process, if
they are to be vindicated at all. It is these rights, then,
within the meaning of 28 U. S. C. §1413 (1) which the de
fendants are denied and unable to enforce so long as the
present prosecution persist unabated.
Third, where, as here, the federal rights claimed by state
criminal defendants go to the very roots of their prosecu
tion, not merely to its form, the State’s interest in retain
ing the pro section within its own courts is inconsiderable.
I f this sort of federal right is to be made meaningful, the
State must eventually relinquish or be deprived of the
power to begin criminal proceedings which repress it.
The Rives-Powers doctrine responds to concern with fed
eral-state relations by refusing to deprive the state courts
of competence over federal issues, even though they may
decide those issues wrongly. To accept this response and
to run the risk of error with respect to one sort of federal
claim does not compel the same response, the same willing
ness to run the risk with respect to others. Federal sub
stantive civil rights, federal immunities of personal liberty
against prosection, can tenably be claimed in far fewer
cases than federal procedural rights. Their removal
therefore involves considerably smaller intrusion of fed
eral power into the state criminal process. It involves no
intrusion in matters of state judicial procedure itself,
leaves the federal law regulating such procedure in the
hands of the state courts in the first instance. That is
consistent with the judgment made in Rives and Powers
that the primary responsibility of the state courts for such
matters of their own procedure is best left to them. The
cases taken from their competence are only those which
federal law has decreed should not be in court at all. And
100
these cases are, precisely, the cases in which the risk of
state court error is most destructive of federal rights,
because that risk not only jeopardizes the rights of the
individual before the court but also—when taken into ac
count by those wrho think of venturing to exercise their
rights—serves as a substantial repressing force. It makes
little difference to the state criminal defendant that his
claim of Negro exclusion from the grand or petit jury is
rejected by the trial judge, so long as it is accepted by this
Court or by a post-conviction habeas corpus court. I t
makes a great deal of difference to the Negro deciding
whether to enter Leb’s in Atlanta whether he is hauled on
trespass charges before the Superior Court of Fulton
County or the United States District Court.
Fourth, the very arguments put forth in the Rives-
Pow ers decisions to distinguish Strauder v. W est Virginia,
supra, point to the conclusion that a proper case for re
moval is stated by a defendant who asserts that the statute
under which he is prosecuted is unconstitutional as applied
to his conduct,151 although not unconstitutional on its face.
Strauder, concerned with the sufficiency of a pretrial show
ing of denial of or inability to enforce federal civil rights,
held the showing sufficient where a state statute required
jury discrimination, although it was not shown that the
state courts would obey the statute in preference to the
Constitution. Rives and its successors held a showing insuf
ficient “where jury commissioners or other subordinate
officers had, without authority derived from the Constitu
tion and laws of the State, excluded colored citizens from
151 The term “unconstitutional” as used in the text includes state
statutes voided by the supremacy clause because in conflict with
federal civil rights legislation.
101
juries because of their race.” Neal v. Delaware, pp. 78-79,
supra. The test of removability, then, based on the sup
posed degree of certitude with which it could be said before
trial that the state courts would improperly reject a fed
eral claim, was whether state statutory law directed the
federally impermissible result complained of, so that that
result was produced by statute and not simply by state
judicial action unconstrained by the State’s legislation.
Under this test, it cannot matter whether the state statute
involved is unconstitutional on its face (i.e., in all applica
tions to a described class) or unconstitutional as applied
(i.e., insofar as it condemns particular defendants’ federally
protected conduct). In both cases, equally, it is the statute
which compels the state courts to the constitutionally unal
lowable result and thus brings it about that the defendant
“cannot enforce in the courts of [the] . . . State” his fed
erally protected rights. The critical characteristic of the
Rives-Powers cases was not lack of a facially unconstitu
tional state statute, but lack of a statute which had any
thing to say about the constitutional denial whose future
occurrence was the proffered basis for removal. The cases
involved a matter of trial procedure unregulated by statute;
in none of them did the defendant claim that the substantive
criminal statute on which the prosecution was bottomed was
invalid, either on its face or as applied, by reason of fed
eral limitations on the kind of conduct which a State may
punish. This latter sort of claim asserts that, under the
Constitution, no matter what procedures may he forthcom
ing at trial, the State cannot constitutionally apply the
statute relied on to the conduct with which the defendant
is charged. Neal v. Delaware and subsequent cases explain
the Rives-Pow ers line as holding that “since [the removal]
. . . section only authorized a removal before trial, it did not
102
embrace a case in which a right is denied by judicial action
during the trial . 152 But a defendant who attacks the
underlying criminal statute as unconstitutional does not
predicate his attack on “judicial action during the trial.”
He says that if he is convicted at all under the statute his
conviction will be federally illegal. Nothing about his con
tention is contingent upon the nature of “judicial action,
after the trial commenced . . . . ” 153
When a statute of the State denies his right, or inter
poses a bar to his enforcing it, in the judicial tribunals,
the presumption is fair that they will be controlled
by it in their decisions; and in such a ease a defen
dant may affirm on oath what is necessary for a re
moval. Such a case is clearly within the provisions of
[present subsection 1443(1)]. . . . (Virginia v. Rives,
100 U. S. 313, 321 (1880).)
Since Georgia’s prosecution of the defendants rests upon the
theory that the Georgia trespass statute makes their con
duct criminal, and since the Georgia trespass statute cannot
make their conduct criminal consistently with the Civil
Bights Act of 1964 and the supremacy clause under the
152 Neal v. Delaware, 103 U. S. 370, 386 (1881); see, e.g., Gibson
v. Mississippi, 162 U. S. 565, 581 (1896).
153 Neal v. Delaware, supra note 152 at 387. Of course, the state
court may hold that the statute does not apply, or may hold it
unconstitutional and enforce the defendant’s federal claims. But
it is always possible that a state court may do these things, and
if the possibility precludes removal, the removal statute is read
entirely off the books. This would require repudiation of Strauder,
and rejection of the assumption on which the Hives-Powers line
of cases was decided: that if an unconstitutional state statute were
found, removal would be proper.
1 0 3
circumstances alleged in their removal petition,154 Georgia’s
statute—whether or not unconstitutional in other applica
tions—denies defendants’ right within the meaning of Rives
and §1443(1).
What has already been said is sufficient to answer
Georgia’s alternative argument (Br. 51-54) that removal
under §1443(1) is unavailable unless the defendants demon
strate that the Georgia courts will not fairly entertain
their federal claim. Acceptance of this argument would
require overruling Strauder v. West Virginia. I t would
also require that a federal district judge, on petition for
removal, try the constitutional fidelity of the state judiciary.
This is inconceivable. The present case demonstrates the
difficulty. I f the district court below were required to try
the Georgia courts, it could hardly stop with the Bolton
opinion of the Georgia Supreme Court, described at pp.
52-54 of Georgia’s brief. I t would have to make a some
what more searching inquiry to discover whether—whatever
the attitude of the Supreme Court of Georgia—Judge Dur-
wood T. Pye has acquiesced in this Court’s Hamm decision.
Compare this Court’s decision in W alker v. Georgia, 381
U. S. 355 (1965), with Judge Pye’s order on remand, set
out at App. 4a-7a. It would have to evaluate Judge Pye’s
demonstrated attitude in other civil rights matters as a
basis for prediction of his probable fairness in this case.
See Galphin, Ju dge Pye and the Hundred Sit-Ins, 150 T h e
New R epu blic 8 (No. 22, Issue 2584, May 30, 1964). It
would have to similarly evaluate Judge Pye’s attitude
toward the present case, as evidenced by his orders and
opinions set out in the Appendix to Brief for Respondents
Rachel et al., Georgia v. Tuttle, 377 U. S. 987 (1964). Such
an inquiry is palpably impossible.
154 See Part I I I infra.
1 0 4
2 . P ersons P rosecuted fo r E xercisin g T h e ir R ight to E qu al
P u blic A ccom m odations U n der the Civil Rights Act o f 1 9 6 4
A re T h ereb y P rosecu ted fo r an Act U n der C olor o f A u
thority D erived F ro m the Civil Rights Act, W ithin the M ean
ing o f % 1 4 4 3 (2 ) .
I f this Court agrees with the construction of §1443(1)
by the court of appeals, no question regarding §1443(2)
need be reached. As an alternative ground for affirmance
of that court’s judgment, however, defendants submit that
their petition for removal ought be held sufficient under the
latter subsection. Their position, simply, is that a state
criminal defendant charged with an offense for an act in the
exercise of his right to equal public accommodations given
by section 201 of the Civil Eights Act of 1964 is thereby
prosecuted “For [an] . . . act under color of authority de
rived from” section 201, within the meaning of §1443(2).
As Georgia notes (Br. 44-46), the Court of Appeals for
the Fifth Circuit, which did not reach the issue in the
present case, has since decided it adversely to defendants’
contention, in part on the ground that §1443(1), construed
as the Fifth Circuit construes it, “is an adequate vehicle for
the protection and vindication of the rights of [removal
petitioners] . . . ,” P eacock v. City o f Greenwood, 347 F. 2d
679, 686 (5th Cir. 1965). Should this Court reverse the
Fifth Circuit’s construction of §1443(1), ample scope must
be given §1443(2) in order to realize the removal statute’s
protective purposes.
Georgia urges on the Court (Br. 44-46) the Peacock con
struction of §1443(2), which limits removal under that sub
section to “federal officers and those assisting them or
otherwise acting in an official or quasi-official capacity.”
347 F. 2d at 686. “Color of authority” is thus read to mean
“color of office.” Georgia also relies (Br. 40-42) upon the
1 0 5
construction given §1443(2) by New Y ork v. Galamison,
342 F. 2d 255 (2d Cir, 1965)—although the reliance is ren
dered more than a little precarious by the Second Circuit’s
explicit distinction of public accommodations cases like the
present one, whose removability under §1443(2) the court
leaves open. See 342 F. 2d at 265, 271!55 The Galamison
construction, in essence, holds that an act is done under
color of authority derived from federal law providing for
equal civil rights only if federal civil rights law commands
that the act be done, as distinguished from commanding
that the actor be left free to do it. Both Peacock and Galami
son , however, take an inappropriately narrow view of
§1443(2).
The subsection authorizes removal of prosecutions “For
any act under color of authority derived from any law
providing for equal [civil]155 156 rights.” As a matter of lan
guage, this might cover (i) only federal officers enforcing
laws providing for equal civil rights; or (ii) federal officers
enforcing such laws and also private persons authorized
by the officers to assist them in enforcement; or (iii) the
preceding class and also all persons exercising privileges
or immunities under such laws.157 Construction (i) is shortly
155 The quotation from the Galamison opinion at Br. 40-41 is
misleading in suggesting that the Second Circuit would have rele
gated removal petitioners who—-like defendants here—invoked the
Civil Rights Act of 1964 to the exclusive protection of §1443(1).
The quoted passage does distinguish the showings needed for re
moval under subsections (1) and (2) respectively of §1443, but
in other passages the court reserves the question whether peti
tioners like the present defendants are entitled to removal under
subsection (2). See pages cited in text.
156 See note 142 supra.
157 Private persons not authorized by federal officers to enforce
federal laws could not claim “color of authority derived from”
such laws in any other manner than by exercising privileges or
immunities given them by the laws.
1 0 6
disposed o f : the Civil Rights Act of 1866 allowed removal
of suits and prosecutions “against any officer, civil or mili
tary, or other person, for any arrest or imprisonment, tres
passes, or wrongs done or committed by virtue or under
color of authority derived from . . . ” the act or the Freed-
men’s Bureau legislation;158 this “officer . . . or other per
son” formula survived successive codifications159 until
1948; all words limiting the nature or character of the
petitioner were then dropped, the reviser’s note disclaim
ing substantive change.160
Three technical considerations support rejection also of
alternative construction (ii). First, the “color of authority”
clause of the 1866 act applied to “persons” without ex
plicit limitation to persons acting under federal officers.
The same Congress which passed the act put such an ex
plicit limitation in the “authority” clause of the revenue-
officer removal statute of that year.161 Second, the “color
of authority” provision of 1866 was carried forw~ard with
the “denial” provision in section 641 of the Revised S tat
utes. Other removal provisions applying to federal officers
and persons acting under them—including the provisions
of the 1871 amendatory act to the Second Civil Rights Act
—were carried forward in section 643. This is some evi
dence of a relatively contemporary understanding that, un
like the section 643 provisions, the “color of authority”
clause of the civil rights removal section applies to persons
who are neither federal officers nor acting under federal
158 The statute is set out in the text at pp. 55-56, supra.
169 See Rev. Stat. §641 (1875) ; Judicial Code of 1911, ch. 231,
§31, 36 Stat. 1096.
160 See p. 70, supra.
161 See p. 44, supra.
1 0 7
officers. Finally, evidence of a similar congressional
understanding is seen in the continuation of the civil rights
“color of authority” provision in subsection 1443(2) in
1948. The 1948 revision of Title 28 of the United States
Code expanded the earlier revenue-officer removal statutes
to cover in section 1442(a)(1) all srdts or prosecutions
against any federal “officer . . . or person acting under him,
for any act under color of such office.” I f subsection 1443(2)
reaches only federal officers and persons acting under them,
it is wholly tautological in the 1948 Code.
This last consideration does not suggest attributing to
the Code revision any purpose to change the meaning of the
law. But in view of the ambiguities in language and his
tory of prior law, the desirability of giving subsection
1443(2) some meaningful place in the context of present
judiciary legislation does strongly support construction
(iii). More important, construction (iii) is supported by
the context of the Civil Bights Act of 1866.
Unlike the Habeas Corpus Suspension Act of 1863, on
whose language the “color of authority” clause of 1866 was
modeled,162 the 1866 act granted extensive private privileges
and immunities, including some whose exercise would fore-
seeably provoke state law charges of trespasses and wrongs.
Section 1, for example, gave all citizens the equal right to
acquire and hold real and personal property and to full
and equal benefit of all laws for the security of persons and
property. In the exercise of ordinary self-help measures to
defend their property or resist arrest under the discrimina
tory Black Codes, freedmen asserting their equal rights
under these sections would likely commit acts for which
162 See p. 43, supra.
108
they might be civilly or criminally charged in the state
courts.
The “color of authority” clause of the removal section,
present subsection 1443(2), covers such cases in terms.
By the clause Congress seems to have meant to authorize
removal of cases of this sort without requiring the state
defendant to demonstrate in addition that he was denied
or could not enforce his equal civil rights in the state courts,
within the meaning of the “denial” clause which is now
subsection 1443(1). The reason why “denial” was not de
manded in subsection (2) cases is apparent. While subsec
tion (1) protects all federal civil rights, substantive and
procedural, subsection (2) isolates and separately treats
cases involving substantive federal claims. In such cases,
as defendants have shown at pp. 95-103 supra, there was
and is a particularly imperative need for immediate and
noncontingent federal jurisdiction and for the confidence
given by the assurance of such a jurisdiction, lest exercise
of the federally guaranteed substantive rights be deterred
by fear that those rights may later have to come to the test
in an unsympathetic state court. Like the right of equal
public accommodations given by the Civil Bights Act of
1964, the privileges given the freedmen in 1866 to have an
equal enjoyment of property and to move about uncon
strained by racially discriminatory regulations163 would
have been seriously impaired if the freedmen had thought
that they could be haled before the state courts in the first
163 One of the clear purposes of the 1866 act was to assure the
freedmen the freedom of movement which they were denied the
“pass” system of the Southern States. Senator Trumbull persist
ently recurred to the evils of the “pass” system, in debate on the
civil rights bill, C o n g . G l o b e , 39th Cong., 1st Sess. 474 (Jan. 29,
1866), 1759 (April 4, 1866), and on the amendatory freedmen’s
bureau bill, id. at 941 (Feb. 20, 1866).
1 0 9
instance on charges of exercising those freedoms. Exercise
of the freedoms must have been within congressional con
templation an act “under color of authority” of the Civil
Rights Act.
This is to say that any act which is protected by a law
providing for equal civil rights is an act done “under color
of authority derived from” the law. Such a view rejects
P eacock’s equation of “authority” with “office” and leaves
no room for the construction advanced in Galamison that
federal civil rights law must “direct” the actor to act.
Judge Friendly, writing for the majority in Galamison,
concluded that, in order for a law to provide an actor “color
of authority,” that law must “direct” or “encourage” him
to act. Assuming that a private individual not acting under
a federal officer might sometimes be given “color of au
thority” by federal law, Judge Friendly insisted that this
could be so only if such a private individual could “point
to some law that directs or encourages him to act in a cer
tain manner, not merely to a generalized constitutional pro
vision that will give him a defense or to an equally general
statute that may impose civil or criminal liability on per
sons interfering with him.” 342 F. 2d at 264. Judge Mar
shall (as he then was) disagreed with the majority’s test
of “color of authority.” Dissenting, he stated his own test:
“Any individual acts under ‘color of authority’ of a law
at least when his conduct is protected by that law, when
interferences with that activity are unlawful and the sub
ject of civil or criminal legal remedies.” 342 F. 2d at 276.
He reasoned that the most familiar technique for encourag
ing certain private activity was to provide protection for
that activity or to make interferences with the activity un
lawful. Ibid. His position seems plainly correct.
110
To support its construction, the Oalamison majority said
that “color of authority” in subsection 1443(2) must have
a narrower meaning that “a right under” in subsection
1443(1), “since otherwise, in almost all cases covered by
the first clause . . . , the requirement of showing denial or
inability to enforce would be avoided by resort to the sec
ond.” 342 F . 2d at 264. But under any construction of
“color of authority,” subsection (2) has a narrower reach
than subsection (1 ); the “act” requirement of subsection
(2) limits that subsection to cases presenting substantive
federal claims. The court’s argument therefore has several
weaknesses. First, its phrase “almost all cases” makes
the extraordinarily implausible assumption that the inci
dence of colorable substantive federal civil rights claims
far outstrips the incidence of colorable procedural claims.
Second, subsection (2) appears to be designed precisely
to avoid “the requirement of showing denial or inability to
enforce” in the case of substantive claims—and for good
and sufficient reason. Third, as Judge Marshall persua
sively points out, the majority’s insistence on a statutory
directive wholly defeats its assumption that subsection
1443(2) may reach private, unofficial action. Id. at 277. No
federal law providing for equal civil rights (however that
phrase be construed) directs anyone other than a federal
officer to do a protected act. Hence, the conclusion that
§1442 reaches private individuals in any case compels a
conception of “authority” within that subsection as “au
thorization,” “license,” “protection”—entirely natural mean
ings of the term. The majority also says that, because in
the cases “at which §1443(2) was primarily aimed and to
which it indubitably applies—acts of officers or quasi
officers”—the removal petitioner would have acted “on a
specific statute or order telling him to act,” a “private per
I l l
son claiming the benefit of §1443(2) can stand no better
. . . ” 342 F. 2d at 264. Again Judge Marshall’s response
is compelling: “The manner in which a private person
acts under the authority of a law need not be the same as
that of an officer.” Id. at 276. The law applies to each
according to his nature; the assumption or conclusion that
it applies to private individuals at all precludes the holding
that it applies only when a private individual meets some
condition which private individuals never meet.
The trouble with both the Peacock and Galamison read
ings of “color of authority” is that they largely render
§1443(2) a dead letter. The subsection might indeed be
relatively unimportant if ample scope were given §1443(1).
But Georgia’s position here nullifies that subsection as well
and thereby relegates civil rights removal to the ash
heap. Defendants submit this would be intolerable.
Instructed by bitter experience that the state courts
could not and would not be the efficient organs for vindicat
ing federally guaranteed civil rights—that, to the contrary,
they could and would be instruments for the destruction by
harassment of the previous liberties secured by battle and
the post-Civil War amendments—the Reconstruction Con
gresses did no vain act in the creation of the federal civil
rights removal jurisdiction. That jurisdiction responded,
basically, to two critical concerns. First, the same Con
gresses which made a high national commitment to protect
individual freedom and equality against the States knew
that federal fact-finding forums were absolutely indispen
sable to the effective enforcement of those guarantees.164
164 See Townsend v. Sain, 372 II. S. 293, 312 (1963) ; ef. England
v. Louisiana State Board of Medical Examiners, 375 U. S. 411
(1964).
112
Second, those Congresses well understood that immedi
ate, nndelayed enforcement was imperative if the guar
antees were to survive.165 166 These concerns are equally com
pelling today. Federal guarantees of civil rights, turning as
they ordinarily do upon contested issues of fact, will be of
only academic value to the citizen unless the facts are found
in a federal tribunal.166 And delays of the sort customary
to the heavy-handed state criminal process-—delays of
years, coupled with the onerous burdens and perilous vicis
situdes of litigation in the state courts—threaten to annihi
late the promised freedoms and convert eternal liberties
into eternal lawsuits. Meanwhile, those persons who dare
to exercise their rights are fettered with the clogs of pend
ing prosecutions, while others-—threatened with the same
fate—forego even the attempt at freedom.
Repression of precious federal rights is no new or fleet
ing phenomenon. Repression is endemic to the popular,
localized, politics-dominated state criminal administration.
Today, as in Reconstruction times, those who control the
state criminal process are “harassing, annoying and even
driving out of the State” 167 persons to whose safe conduct
the national faith is pledged. There are thousands of such
harassment prosecutions in the South today. There are
fewer outside the South, but not few. Today the defendants
are Negroes. Thirty years ago they were Jehovah’s W it
nesses or labor union organizers. Sixty, Orientals on the
165 See Dom.browski v. Pfister, 380 U. S. 479 (1965) ; Baggett v.
Bullitt, 377 U. S. 360 (1964); Freedm an v. Maryland, 380 U. S.
51 (1965); cf. Monroe v. Pape, 365 U. S. 167 (1961); McNeese v.
Board of Education, 373 IJ. S. 668 (1963).
166 See, e.g., Feiner v. New York, 340 U. S. 315 (1951).
167 C o n g . G l o b e , 39th Cong., 1st Sess. 1526 (March 20, 1866)
(remarks of Representative McKee, of Kentucky).
1 1 3
Coast. Before that, the Unionists, the Cherokees, the Freed-
men—history has followed one such group with another.
And if the past is prelude, the probability is strong that the
popular organs of state prosecution will never effectively
protect federal civil liberties: that they will remain, rather,
weapons of harassment, not vindication, of persons who
exercise the unpopular rights which the Constitution gives.
Yet, the right to live free of racial discrimination must
be not merely the right to have one’s state conviction for
attempting to exercise that right eventually overturned
by this Court on direct review or by a federal court exercis
ing post-conviction habeas corpus jurisdiction. The right
to equal public accommodations must be not merely the
right to secure a favorable federal ruling some years later.
I f these rights are to be anything more than paper rights
they must be exercisable free of state interference in the
real world; and such interference must be stopped as soon
as it begins. That is the basic justification of a federal
civil rights removal jurisdiction. State harassment works,
for the most part, not by final judgments of conviction
but by mesne process. I t can be stopped only by a federal
anticipatory jurisdiction as broad as the evil itself. Al
though federal trial procedure guarantees may be vindi
cated at the conclusion of state process, the power of re
pression by mesne process allows no such accommodation
in the case of substantive guarantees. When individuals
are prosecuted for their exercise of federally guaranteed
freedoms—when they are prosecuted, in the words of
§1443(2), for acts under color of authority of federal civil
rights law—then the respective interests of the Nation and
the States can be reconciled only by federal intervention at
the outset of the prosecution.
1 1 4
III.
Defendants’ Removal Petition Was Not Deficient as
a Pleading.
I f defendants are correct in the view they take of either
§1443(1) or §1443(2), their prosecutions are removable on
a showing, without more, that they are being prosecuted for
attempting to exercise their rights to equal public accom
modations under the Civil Rights Act of 1964. This requires
that they allege (and prove if the allegations are con
tested)168 that they are being prosecuted (a) for trespass
for refusing to leave (b) establishments covered by the pub
lic accommodations title of the Civil Rights Act of 1964, (c)
where they were excluded and consequently prosecuted by
reason of race.169
The petition adequately alleges these three elements. It
states that the defendants have been indicted under, and
are presently charged with violations of, Ga. Code Anx .
168 Defendants take pp. 47-50 of Georgia’s Brief to mean that no
hearing was required on the present removal petition because the
facts alleged were insufficient if true to support removal—just as,
in a civil action, a complaint may be dismissed without evidentiary
hearing for failure to state a claim within the jurisdiction of the
court. It is hard to conceive that Georgia is asserting also the
converse of this proposition: that if the allegations are sufficient
they are not subject to denial and removal is allowed without in
quiry into their truth where disputed. Defendants would be ad
vantaged by such a rule in this case, but hardly think themselves
entitled to it. Rather, it seems obvious that controversies as to
facts pertinent to removability must be in some manner resolved
by the district court, whether on affidavit, evidentiary hearing or
other method of trying facts.
169 All of the other sorts of allegations which Georgia says de
fendants’ removal petition lacks (Br. 30-31) are immaterial if
this Court agrees with defendants’ construction of the removal
statute.
1 1 5
§26-3005, Georgia’s 1960 refusal-to-leave statute (R. 1-4).
It states that defendant Rachel and some of the other de
fendants “were arrested . . . when they sought to obtain
service, food, entertainment and comfort at Lebco, Inc.,
d/b/a Leb’s, a privately owned restaurant opened to the
general public, 66 Luckie Street, Atlanta, Fulton County,
Georgia” (R. 2). Similarly, for each defendant other than
Rachel and his companions, the petition states that he or
she was arrested while seeking service at a named restau
rant, cafeteria or hotel, opened to the general public (R.
2-8). A street location which the district court could notice
was in downtown Atlanta was given for each establishment
except the Henry Grady Hotel, and that was alleged to be
“built on real estate owned by the State of Georgia but
leased for a term of years to the H. & G. Hotel Corpora
tion.” {Ibid.) These arrests “were effected for the sole pur
pose of aiding, abetting and perpetuating customs, and
usages which have deep historical and psychological roots
in the mores and attitudes which exist within the City of
Atlanta with respect to serving and seating members of the
Negro race in such places of public accommodation and con
venience upon a racially discriminatory basis and upon
terms and conditions not imposed upon members of the
white or Caucasian race” (R. 1). And “the State of Georgia
by statute, custom, usage, and practice supports and main
tains a policy of racial discrimination” (R. 4).
Trespass prosecutions for refusal to leave restaurants
at which the defendants were refused service on account
of race are plainly alleged.170 The only regard in which the
170 Georgia contends at Br. 41-42 that the allegation that “Mem
bers of the so-called white or Caucasian race are similarly treated
[i.e., treated as are Negroes] and discriminated against when ac
companied by members of the Negro race” (R. 1-2) is in effect
116
allegations might be challenged relates to their sufficiency
in alleging coverage of the restaurants by the public accom-
motions title of the 1964 act. Failure in terms to allege
coverage is not surprising, of course, inasmuch as the peti
tion predated the 1964 act; and if the facts set forth did
not sufficiently allege coverage, the supervention of the act
would plainly warrant this Court’s remand of the case to the
district court to permit amendment. 28 U. S. C. §2106
(1964); cf. Maryland v. S oper (No. 1), 270 IT. S. 9, 36
(1926). But the facts appear sufficient. I t is incredible to
suppose that any restaurant in downtown Atlanta, opened
to the general public, is not one which “serves or offers to
serve interstate travelers,” within sections 201(b)(2),
(c) (2) of the act. See Hamm v. City o f B ock Hill, 379 U. S.
306, 309-310 (1964). Additionally, the allegations that de
fendants were arrested for the sole purpose of aiding cus
toms of racial discrimination and that the State of Georgia
supports and maintains a policy of racial discrimination
bring the case within sections 201(b), (d)(2), as one in
which discrimination “is carried on under color of any cus
tom or usage required or enforced by officials of the State
or political subdivision thereof”—particularly as to the
Henry Grady Hotel, which is alleged to occupy state-owned
land. I f Georgia seriously disputes coverage in this Court,
defendants would not object to the Court’s leaving the mat
ter for amendment and hearing on the remand ordered by
the court of appeals. See Part IY infra. I f not, the matter
seems an academic quibble.
an allegation that Negroes and whites are similarly treated in
Atlanta. This is bizarre. Defendants think it indisputable that a
white man excluded from a covered establishment on the sole
ground that he is accompanied by a Negro is thereby discriminated
against “on the ground of race” within section 201(a) of the Civil
Eights Act of 1964.
1 1 7
Under 28 U. S. C. §1446 (a) (1964), a removal petition is
required to contain “a short and plain statement of the
facts which entitle [the petitioner] . . . to removal.” This
provision, enacted in the 1948 Judicial Code revision to unify
and simplify the statutory provisions theretofore govern
ing procedure in invoking the various heads of federal re
moval jurisdiction, adopts the practical and non-technical
approach to pleading previously taken by this Court in
promulgating F ed . R u l e Civ . P ro. 8(a).171 Pre-1948 deci
sions requiring great specificity and detail in criminal re
moval petitions under the old statutes, see Maryland v.
S oper (No. 1), 270 U. S. 9 (1926); Colorado v. Symes, 286
U. S. 510 (1932), have no application under §1446(a), which
governs alike civil and criminal eases.172 Given the few,
simple facts required to sustain removal under proper con
struction of §1443, defendants’ petition would probably pass
muster even under the old pleading requirements. Under
present §1446(a), the sufficiency of the petition should be
clear.
171 In pertinent part, F e d . R u l e C i v . P e o . 8(a), promulgated b y
this Court to take effect in 1938, provided (and still provides) :
“A pleading which sets forth a claim for relief . . . shall contain
(1) a short and plain statement of the grounds upon which the
court’s jurisdiction depends . . . , (2) a short and plain statement
of the claim showing that the pleader is entitled to relief, and
(3) a demand for judgment for the relief to which he deems him
self entitled.”
172 The statute under which Soper and Symes were decided, Ju
dicial Code of 1911, ch. 231, §33, 36 Stat. 1097. as amended by
Act of August 23, 1916, ch. 399, 39 Stat. 532-533, 28 U. S. C. §76
(1940), provided in pertinent part: “Said petition shall set forth
the nature of the suit or prosecution and be verified by affidavit
and, together with a certificate signed by an attorney . . . stating
that, as counsel for the petitioner, he has examined the proceedings
against him and carefully inquired into all the matters set forth
in the petition, and that he believes them to be true, shall be pre
sented to the said district court . . . . ”
1 1 8
IV.
The Court of Appeals’ Directions Governing Hearing
on Remand Were Proper.
Under proper construction of 28 U. S. C. §1443, Georgia’s
contention that the court of appeals should have directed
the district court on remand to inquire whether the “Georgia
Courts will not apply Hamm fairly” (Br. 52) must be re
jected. Fairness of the state courts in entertaining defen
dants’ federal claim is not in issue. See p. 103 supra.
There remain Georgia’s contentions that the court of
appeals should have left open on remand (1) the issue
whether the restaurants in which defendants were arrested
were covered by the public accommodations title of the Civil
Rights Act of 1964, and (2) the issue of “violence or vandal
ism” by defendants which, Georgia says, would take them out
of the protection of Hamm (Br. 51-52). As to the first issue,
it should be noted that Georgia’s brief carefully avoids
asserting that there is any real question of coverage of the
restaurants. The court of appeals’ direction to the district
court to try the issues “as to the purpose for the arrests
and prosecutions, and in the event it is established that the
removal of the [defendants] . . . from the various places
of public accommodation was done for racial reasons,” to
accept jurisdiction (R. 31-32), doubtless uses the phrase
“places of public accommodation” in its statutory sense.
Therefore, if Georgia should represent to this Court that it
seriously means to contest coverage, defendants would have
no objection to the Court’s making clear in its opinion that
it construes the remand direction as leaving the question
of coverage open. As for the issue of “violence or vandal
119
ism,” Georgia misreads the court of appeals’ opinion. That
court has instructed the district court to inquire whether
defendants were excluded from service in the restaurants
“for racial reasons.” I f they were, the question of violence
or vandalism is simply not in the case. The Civil Rights Act
of 1964, of course, permits a restaurateur to deny service
to vandals because they are vandals, and so does the court
of appeals’ judgment. Neither allows the restaurateur to
deny service “for racial reasons.” That is properly the issue
on remand.
CONCLUSION
For the foregoing reasons, the judgment of the Court
of Appeals for the Fifth Circuit should be affirmed.
Respectfully submitted,
D onald L. H ollow ell
H oward M oore, J r .
859% Hunter Street
Atlanta, Georgia 30314
J ack Green berg
J ames M. Na brit , I I I
M elvyn Zarr
10 Columbus Circle
New York, New York 10019
A n th on y G. A msterdam
3400 Chestnut Street
Philadelphia, Pa. 19104
Attorneys fo r Respondents
A P P E N D I X
la
APPENDIX
Motion for Stay Pending Appeal
Filed March 12, 1964
I n t h e
UNITED STA TES COURT OF A PPEA LS
F ob th e F if t h Cir c u it
No...... ............
T homas R ach el , e t al.,
— v .—
Appellants,
T h e S tate of G eorgia,
Appellee.
Appellants respectfully move this Court for a stay of
further proceedings and for a stay of the prosecution
of the criminal cases against them presently pending in
the Superior Court of Fulton County, Georgia, in the
matters individually entitled State of Georgia v. Thomas
Rachel, Jerry Walker, Larry Crawford Fox, Debbie Amis,
Willie Paul Berrien, Jr ., Lynn Pfuhl, Michael Sayer, Julian
M. Samstein, Ralph M. Moore, Ronald Franklin Turner,
Carl C. Arnold, James F. Thompson, Archer Columbus
Black, Carl Vincent Hill, Jeanette Stockton Hume, James
Arthur Cherry, Russell C. Campbell, Allen R. Elliott, Anna
Jo Weaver, and Charles Edward Wells. These prosecu
tions should be stayed pending hearing and determination
2a
of petitioners’ appeal herein from the order of Judge Boyd
Sloan remanding said matters to the aforesaid state court
after they had been removed to the United States District
Court for the Northern District of Georgia, Atlanta Divi
sion.
Appellants respectfully show that some eighteen (18)
defendants who are on the same Calendar in the Criminal
Division of the Fulton Superior Court and who are charged
with the same misdemeanor offense as the appellants, were
ordered to show cause before the said trial judge at 9:30
A.M., Thursday, March 12, 1964, as to why their bonds
should not be increased and, also, as to why they should
not be required to give further surety. Though only one
of the appellants had his bond increased from $500.00 to
$7,000.00, the appellants stand threatened with the immedi
ate prospect of their bonds being so raised and with their
being required to give further security. That should such
demands be made upon the appellants, many of them would
be required to remain in jail because of their inability to
make said bond; also, as a result of such incarceration, the
appellants would have the effectiveness of their right to
counsel substantially minimized.
Had the Honorable Judge Sloan granted the appellants
a hearing prior to remanding the subject cases, appellants
would have been able to show facts at the hearing sustain
ing the allegations of their removal petition sufficiently to
justify the exercise of the jurisdiction of the said Court to
hear and try the indictments pending in the state court
against the appellants.
The matters will be tried in the immediate future by the
Honorable Durwood T. Pye, Judge, Fulton Superior Court,
unless the proceedings are stayed pending a hearing in this
matter, otherwise the issues raised and to be raised herein
will become moot.
3a
In view of the fact that criminal prosecutions which
appellants seek to stay prevents them from exercising the
rights, privileges and immunities of United States citizens
under the United States Constitution and Laws, appellants
make the following requests in connection with this mo
tion :
A. That the Court by one of its Judges, issue the re
quested stay forthwith and on the basis of the record herein.
B. I f the Court deems it improper to determine this mo
tion by one of its judges that the Court, by a three judge
panel, issue the requested stay forthwith and on the basis
of the record herein.
C. Whether the Court is to determine this motion by one
of its judges or by a three-judge panel, and if the Court is
not to determine the motion on the basis of the record
herein, that the Court set down the motion for argument on
the shortest possible notice that the Court deems proper in
the premises, and grant leave to defendants to serve notice
of argument on plaintiffs by telephone, telegraph, or any
other proper and expeditious means.
To expedite the proceedings a copy of the petition for
removal and remand order are attached hereto as exhibits
“A” and “B ” respectively.
This 12th day of March, 1964.
D oxald L. H ollowell
H oward M oore, J r .
Attorneys for Appellants
P. 0 . Address:
859y2 Hunter St., N.W.
Atlanta 14, Gfa.
JA . 5-8372
4a
Order and Judgment on Remitter
Case N u m ber 85028
I n dictm en t eor M isdemeanor
T ru e B il l R eturn ed b y t h e Grand J u ry
on J anuary 2 8 ,1 9 6 4
F ulton S u perior C ourt
T h e S tate
v e r s u s
M ardon R. W alker
The remitter of the Honorable Supreme Court of Georgia
in the above stated case has been filed in the Office of the
Clerk of this court, as follows, to-wit:
This case came before this court upon a writ of
error from the Superior Court of Fulton County; and,
after argument had, it is considered and adjudged
that the judgment of the court below be reversed for
the reason stated in the opinion this day filed.
Accompanying the remitter is said opinion of the Su
preme Court of Georgia, as follows, to-wit:
22656. Mardon R. W a lk er v . T h e S tate
M obley , Justice. Whereas the Supreme Court of the
United States did by judgment of that court entered
on May 24, 1965, reverse the judgment of this court
5a
in W alker v. State, 220 Ga. 415 (139 SE2d 278), where
in this court had affirmed the judgment of the Superior
Court of Fulton County convicting the defendant of a
misdemeanor, to-wit, the violation of the anti-trespass
law (Ga. L. 1960, p. 142, Code Ann. Section 26-3005)
of this state, the judgment of this court is vacated and
the judgment of the trial court is reversed.
Judgment Reversed. All the Justices Concur.
Upon examination of the decision of the Supreme Court
of Georgia reported at 220 Georgia 415, it appears that the
rulings of this Court denying the plea in abatement were
held correct, that it was held that the motion in arrest of
judgment raised no question for consideration, and that it
was further held that the motion for new trial -was properly
overruled. It also appears that the Supreme Court of
Georgia further ruled, in headnote five of said opinion, as
follows, to-wit:
5. This court has no original jurisdiction and is
limited to the trial and correction of errors of law
from the superior courts and other enumerated courts
of this State. Code Ann. Section 2-3704. Thus the con
tention made in the general grounds of the motion for
new trial that the enactment into law of the Civil
Rights Act of 1964 by the Congress abates defendant’s
conviction and prevents her punishment for violating
the Georgia anti-trespass Act raises no question for
consideration by this court, as this question was not
raised or passed upon in the trial court.
Upon examination of the decision of the Supreme Court
of the United States entered May 24, 1965, reported in
6a
Suprem e Court R eporter, Volume 85, Number 15, for June
15, 1965, at page 1557, it appears that upon consideration
of the petition for certiorari filed in the Supreme Court
of the United States to the Supreme Court of Georgia it
was ordered by the Supreme Court of the United States
that said petition for certiorari be granted and that the
judgment of the Supreme Court of Georgia be reversed.
I t further appears that dissenting from this order were Mr.
Justice Stewart, Mr. Justice Black, Mr. Justice Harlan,
and Mr. Justice White.
Upon receipt of the aforesaid remitter in this court, said
case is now in the following posture: The conviction of
defendant, Mardon R. Walker, in this court has been or
dered reversed by the Supreme Court of Georgia by rea
son of the reversal of its affirmance thereof by the Su
preme Court of the United States.
The rulings and judgments of the Supreme Court of
Georgia and the Supreme Court of the United States do
not extend beyond this. No question as to the effect of the
Civil Rights Act of 1964 enacted by the Congress has been
made by either the Supreme Court of Georgia or the Su
preme Court of the United States by any judgment in re
lation to this case. Indeed, no such ruling could be made
for no issue in that regard was before this Court, and the
Supreme Court of Georgia was without jurisdiction to pass
thereon and the Supreme Court of the United States, like
wise, was without jurisdiction as to any such matter which
was not in issue in the case.
While previous rulings of the Supreme Court of the
United States were cited by the majority of that court in
its opinion reversing the decision of the Supreme Court of
Georgia, said citations of authority do not constitute rul
7a
ings or judgments and in no way serve to constitute any
adjudication in this case with reference to the aforesaid
Civil Eights Act of 1964 enacted by the Congress of the
United States in that year.
The case thus before this Court is simply one in which
the conviction of defendant, Mardon R. Walker, under the
indictment against her in this court has been set aside
and reversed, and the result is that the case stands for
trial upon said indictment de novo in this court.
It is, therefore, considered, ordered, and adjudged by the
Court that the aforesaid conviction of Mardon R. Walker
be, and the same is hereby set aside, and a new trial is
granted her upon said indictment.
This, the 28th day of July, 1965.
D urwood T. P ye
Judge, Superior Court
Atlanta Judicial Circuit