Ex Parte Gene Mitchell Gray Response to Rule to Show Cause

    IN THE

Supreme Court of the United States
October Term, 1951.

No. 159 Miscellaneous.

EX PARTE GENE MITCHELL GRAY, LINCOLN 
ANDERSON BLAKENEY, JOSEPH HUTCH 

PATTERSON a n d  JACK ALEXANDER,
Petitioners.

RESPONSE TO RULE TO SHOW CAUSE.

SHACKELFORD MILLER, JR.,
U. S. Circuit Judge,

LESLIE R. DARK,
U. S. District Judge,

ROBERT L. TAYLOR,
U. S. District Judge.

Respondents.

W E S T E R F IE L D -B Q N T E  C O .,  IN C O R P O R A T E D , L O U IS V IL L E , K Y .



SUBJECT INDEX.

PAGE

The respondents, constituting the three-judge Dis­
trict Court, ruled that such Court lacked jurisdiction 
to decide the case on its merits, in that the case in- . 
volved alleged discrimination against the petitioners 
under the 14th Amendment rather than the constitu­
tionality of the Tennessee Statutes, making 28 U. S. 
Code 2281 inapplicable................ ..............................  1-2

Such ruling is reviewable by this Court on appeal, 
which appeal has been taken, making it inappropriate 
and unnecessary to proceed by the present application
for Writ of Mandamus...............................................  4

Mandamus may not be used as a substitute for an 
appeal in cases where the Court has acted, even though 
erroneously . . ........................................................ . 4-5



Cases and Statutes.
PAGE

Berea College v. Kentucky, 211 U. S. 45....................  2
City of Paducah v. Shelbourne, Judge, 341 U. S. 902.. 5
Ex parte Bransford, 310 U. S. 354............................. 2,5
Ex parte Collins, 277 U. S. 565.................................  2
Gong Lum v. Rice, 275 U. S. 78...................................  2
Gray v. Board of Trustees, etc. (Appendix A, page 19, 

of petitioner’s motion for leave to file the present 
proceeding) .........................................................  3

Gray v. University of Tennessee, 97 Fed. Supp. 463... 3
I. C. C. v. United States, 289 U. S. 385........................ 5
McCabe v. Atchison, T. & S. F. Ry. Co., 235 U. S. 151.. 2
McLaurin v. Oklahoma State Regents, 339 U. S. 637.. . 2
Missouri v. Canada, 305 U. S. 337.....................   2
Plessy v. Ferguson, 163 U. S. 537..............................  2
Rescue Army v. Municipal Court, 331 U. S. 549..........  3
Sipuel v. Board of Regents, 332 U. S. 631.  .............  2
State, ex rel. Michael v. Witham, 179 Tenn. 250..........  2
Sweatt v. Painter, 339 U. S. 629............................... 2
U. S., ex rel. Chicago, etc. v. I. C. C., 294 U. S. 50........  5
U. S., ex rel. Girard Trust Co. v. Helvering, 301 U. S.

540 ......................................................................  4
Wilentz v. Sovereign Camp, 306 U. S. 573................... 4
28 U. S. Code, Secs. 2281, 2284..................................  2



IN  THE

Supreme Court of the United States
October Term, 1951.

No. 159 Miscellaneous.

EX PARTE GENE MITCHELL GRAY, LINCOLN 
ANDERSON BLAKENEY, JOSEPH HUTCH 

PATTERSON a n d  JACK ALEXANDER, 
Petitioners.

RESPONSE TO RULE TO SHOW CAUSE.

The respondents, Shackelford Miller, Jr., Circuit 
Judge of the United States Court of Appeals for the 
Sixth Circuit; Leslie R. Darr and Robert L. Taylor, 
Judges of the United States District Court for the 
Eastern District of Tennessee, in compliance with the 
Rule to Show Cause, issued herein on October 15,1951, 
why the petition for W rit of Mandamus should not 
he granted, make the following response to said Rule.

Following the filing by petitioners of a complaint 
in the United States District Court for the Eastern 
District of Tennessee against the Board of Trustees 
of the University of Tennessee and others, being Civil 
Action No. 1567 in said court, referred to in paragraph 
5 of the petition for W rit of Mandamus herein, the



Honorable Xen Hicks, Chief Judge of the Court of 
Appeals for the Sixth Circuit, on February 20, 1951,: 
acting under the provisions of Title 28 IT. S. Code, 
Sections 2281 and 2284, designated the respondents 
as members of a three-judge court to hear and deter­
mine the said action or proceeding. Said respondents 
complied with said designation, convened and sat as 
said three-judge court in the IX. S. District Court for 
the Eastern District of Tennessee in Knoxville, Ten­
nessee, on March 13, 1951, and at said time held a 
hearing of approximately two hours in said proceeding.

After giving the matter full and careful consider­
ation, said respondents, acting as said three-judge 
court, were of the opinion that the statutes of the State 
of Tennessee, under which the defendants acted, were 
not unconstitutional; State ex rel. Michael v. Witharn, 
179 Tenn. (15 Beeler) 250; Plessy v. Ferguson, 163 
U. S. 537; McCabe v. Atchison, T. & S. F. Ry. Co., 235 
IT. S. 151; Gong Bum v. Rice, 275 II. S. 78; Berea Col­
lege v. Kentucky, 211 II. S. 45; that the issue involved 
was a question of alleged discrimination on the part 
of the defendants under the equal protection clause of 
the 14th Amendment, rather than the unconstitution­
ality of the statutory law of Tennessee; Missouri v. 
Canada, 305 U. S. 337; Sipuel v. Board of Regents, 
332 H. S. 631; Sweatt v. Painter, 339 IT. S. 629; Mc- 
Laurin v. Oklahoma State Regents, 339 IT. S. 637; and 
that as such it was not one in which the three-judge 
court had jurisdiction to adjudicate the issue under 
the provisions of Title 28 IT. S. Code, Sec. 2281; Ex 
parte Bransford, 310 IT. S. 354; Ex parte Collins, 277

2



3

U. 8. 565; Rescue Army v. Municipal Court, 331 IT. S. 
549, 568-574; and on or about April 13, 1951, banded 
down an opinion to that effect which included reasons 
for such conclusion with citation of authorities relied 
upon, and entered an order by which the respondents, 
Shackelford Miller, Jr., and Leslie R. Darr, withdrew 
from said case and directed that the case proceed be­
fore the respondent, Robert L. Taylor, the IT. S. Dis- 

. trict Judge in the District in which the action was 
filed. Said opinion and order are set out in full in 
Appendix A at pages 19 through 24 of the printed 
motion of the petitioners herein for leave to file their 
petition for W rit of Mandamus, and petition for a 
W rit of Mandamus and their brief in support of said 
motion and petition, to which reference is now made 
for a more complete statement of the case and the 
reasons for the ruling and the order referred to.

Thereafter, on April 20, 1951, the respondent, Rob­
ert L. Taylor, LT. S. District Judge for the Eastern 
District of Tennessee, Northern Division, before whom 
and in which District and Division the proceeding was 
originally filed, acting separately and by himself as 
District J  udge in said District and Division, ruled on 
the case, handing down an opinion in which it was 
held that petitioners had been denied the equal pro­
tection of the laws and that they were entitled to be 
admitted to the University of Tennessee. Said opinion 
is reported in 97 Federal Supplement 463, to which 
reference is now made for a more complete statement 
of the ruling. Although no injunction was issued by 
said District Judge at that time, the case-was retained



4

on the docket for such orders as would appear proper 
thereafter. Petitioners have not requested the entry 
of any further order to enforce said ruling, although 
they have obtained by said ruling the right to the entry 
of such an order granting them the relief prayed for 
in said proceeding.

Respondents state that the petitioners appealed 
from the order and judgment of the three-judge court 
of April 13, 1951, to this Court pursuant to Title 28 
United States Code, Sections 1253 and 2101(b). Such 
appeal is now pending before this Court as case No. 
120. The question of the jurisdiction of said three- 
judge court in said proceeding can be reviewed and 
decided by this Court in considering and disposing of 
said appeal. Wilentz v. Sovereign Camp, 306 U. S. 
573. I f  jurisdiction to hear the cause did not exist in 
said three-judge court, the ruling of said Court was 
not erroneous and these respondents should not be re­
quired to act further as said court in said matter. If  
jurisdiction to hear said cause did exist in said three- 
judge court, the ruling of said Court can be reversed 
and set aside by this Court in disposing of the appeal 
and said Court can then proceed to act further in the 
matter and consider the cause on its merits. Accord­
ingly, petitioners have a complete and adequate remedy 
at law, making it unnecessary and inappropriate to 
proceed by application for W rit of Mandamus. U. S. 
ex rel. Girard Trust Co. v. Helvering, 301 U. S. 540, 
544.

Errors of law in the discharge of a judicial func­
tion are not subject to be corrected through the W rit



5

of Mandamus. See City of Paducah v. Shelbourne, 
U, S. District Judge, No. 415 Misc., 341 U. S. 902. 
Although mandamus is an appropriate remedy to com­
pel a judicial officer to act, Ex parte Bransford, 310 
U. S. 354, 355, it is not the function of the writ to com­
pel an adjudication in a particular way, and may not 
be used as a substitute for an appeal, in cases where 
action has been taken. I. C. C. v. United States, 289 
U. S. 385, 393-394. See U. S. ex rel. Chicago, etc., v. 
I. C. C., 294 IT. S. 50, '61-63.

Wherefore, respondents, having fully responded to 
the Rule to Show Cause, respectfully pray that the 
W rit of Mandamus prayed for herein by said peti­
tioners be dismissed, and for all other appropriate 
relief to winch they may be entitled.

S hackelford M iller, J r .,
U. S. Circuit Judge.

L eslie R. D are,
U. S. District Judge.

R obert L . T aylor,
U. S. District Judge.

Respondents.