Rachel v. Georgia Brief for Appellants

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Topic
- Criminal Justice
Notable Person
- Jack Greenberg
Organization
- NAACP Legal and Educational Defense Fund, Inc.
Collection
- Brief Collection
Taxonomy
Identifier
- 47fde2bd-c19a-ee11-be36-6045bdeb8873

Cite this item

Brief Collection, LDF Court Filings. Rachel v. Georgia Brief for Appellants, 1964. 47fde2bd-c19a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/744a6136-ad0c-402d-9a59-450cfff823f7/rachel-v-georgia-brief-for-appellants. Accessed October 10, 2025.

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In the

li&niUb tour! ni Appals
F ob, the F ifth Cibcuit

No. 21354

T homas Rachel, et al.,

T he State of Georgia,

Appellants,

Appellee.

ON APPEAL FBOM THE UNITED STATES DISTBICT COUBT
FOB THE NOBTHEBN DISTBICT OF GEOBGIA

BRIEF FOR APPELLANTS

D onald L. H ollowell
H owaed M oose, Jb.

859% Hunter Street, N.W.
Atlanta, Georgia 30314

Jack Gbeenbebg
10 Columbus Cirele
New York, New York 10019

Attorneys for Appellants

Of Counsel
A nthony G. A msterdam
Melvyn Zabr
A nn C ooper
John Quarles, Jb.

INDEX

Statement of the Case.......................................... ........... 1

Statutes and Rules ......................................-.................... 4

Statutory History ................................ -.......................... 8

Specifications of E rror.................................................... 27

Summary of Argument........-........................................... 28

A rgument

I.
(A) Reserving questions presented by Section

1447(d), the remand order is reviewable
in proceedings in the nature of mandamus
which are properly before the court........ 30

(B) §1447(d) does not bar review of the re
mand order .................................................. 32

(C) If review of the remand order is not avail
able by a proceeding in the nature of man
damus, the individual judges of this court
have power to issue writs of habeas corpus
in this case................ ................................... 43

(D) The Court of Appeals has jurisdiction in
this case as on appeal from the denial of a
petition for writ of habeas corpus............ 44

(E) Relief was not untimely sought in the
Court of Appeals...................................— 48

PAGE

II. Appellants’ Verified Removal Petition States
Facts Sufficient to Authorize Removal Under
Section 1443(1) and (2) .......................... .......... 49

(A) Sufficient facts were alleged to support re
moval on the basis of the authority relied
upon by the District Court to remand....... 49

(B) The substantially probable case doctrine
adhered to by the court below is too re
strictive a construction of Section 1443(1)
to justify remand.............................. 49

(C) Appellants are persons “ acting under color
of authority” within the meaning of 1443(2)
authorized to remove criminal prosecu
tions to the United States District Court.. 58

(D) Appellants alleged sufficient facts, if
proved, sustaining removal under 1443(2) 65

III. Failure to Bring Over Indictments Does Not
Justify Remand .................................................. 66

Conclusion .................................................................................. 68

A ppendix

Motion for Stay Pending Appeal............................... 71

T able oe Cases

Aetna Casualty & Surety Co. v. Flowers, 330 U. S. 464
(1947) ................. 33

Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark.
1963) ................. 56

PAGE

Babbitt v. Clark, 103 U. S. 606 (1880) ........................... 31
Baker v. Carr, 369 U. S. 186 (1962) ................... ......... - 65
Baker v. Grice, 169 U. S. 284 (1898) ............................... 45
Bigelow v. Forrest, 9 Wall. 339 (1869) .......................... 63
Birmingham v. Croskey, 217 F. Supp. 947 (N. D. Ala.

1963) .............................................................................. 56
Bowles v. Strickland, 151 F. 2d 419 (5th Cir. 1945) ....... 27
Braun v. Saverwein, 10 Wall. 218 (1869) ....................- 58
Brazier v. Cherry, 293 F. 2d 401 (5th Cir. 1961) .......... 65
Brotherhood of Bailroad Trainmen v. Virginia ex rel.

Va. State Bar,------IT. S .------- , 12 L. ed. 2d 89 (1964) 67
Bruner v. United States, 343 U. S. 112 (1952) .............. 27
Bush v. Kentucky, 107 U. S. 110 (1882) ......................... 53
California v. Chue Fan, 42 Fed. 865 (N. D. Cal. 1890) .... 56
California v. Damson, 12 F. Supp. 813 (N. D. Cal. 1935) 56
Carroll v. United States, 354 U. S. 394 (1957) ............. 35
Cleary v. Bolger, 371 IT. S. 392 (1963) .......................... 46
Cole v. Garland, 107 Fed. 759 (7th Cir. 1901), writ of

error dism’d, 183 U. S. 693 (1901) .......... ................— 41
Congress of Bacial Equality v. City of Clinton, Louisi

ana (Fifth Circuit, appeal pending) ...................... . 3
Coppedge v. United States, 369 U. S. 438 (1962) .......32,48
Durfee v. Duek, 375 U. S. 106 (1963) ............................. 38
Employers Beinsurance Corp. v. Bryant, 299 U. S. 374

(1937) .......................................................................-.... 31
Ex parte Bain, 121 U. S. 1 (1887) .................................. - 44
Ex parte Collett, 337 U. S. 55 (1949) ............ ..... ........... 27
Ex parte Newman, 14 Wall. 152 (1871) — ..................... 31
Ex parte Boyall, 117 U. S. 241 (1886) .......................... - 45
Ex parte Siebold, 100 U. S. 371 (1879)................. -......... 44
Fay v. Noia, 372 U. S. 391 (1963) ..........................10,38,43,

44,45, 47

I l l

PAGE

Gay v. Ruff, 292 U. S. 25 (1934) ........................31, 33, 40, 41
German Nat’l Bank v. Speckert, 181 IT. S. 405 (1901) .... 41
Gibson v. Mississippi, 162 U. S. 565 (1896) .................... 53
Griffin v. Maryland, No. 6, Oct. Term, 1963, IT. S. S. Ct.

June 22, 1964 ......................... ....................................... 65
Heflin v. United States, 358 U. S. 415 (1959) ................ 32
Hill v. Pennsylvania, 183 F. Supp. 126 (W. D. Pa. 1960) 56
Hoadley v. San Francisco, 94 U. S. 4 (1876) .............. 27, 31
Hodgson v. Millward, 12 F. 2d Cas. 285, No. 6, 568

(1863) ..............................................................-............58,59
Hornsby v. Allen, 326 F. 2d 605 (5th Cir. 1964) ............ 65
Hull v. Jackson County Circuit Court, 138 F. 2d 820

(6th Cir. 1943) .................... ........................................... 56
In re Hohorst, 150 U. S. 653 (1893).................. ............... 48
In re Loney, 134 U. S. 372 (1890) ................................... 46
In re Neagle, 135 U. S. 1 (1890) ............................... —.... 46
In re Pennsylvania Co., 137 U. S. 451 (1890) ............... 31, 35
In re Snow, 120 U. S. 274 (1887) -..........—.................... - 44
Insurance Co. v. Comstock, 16 Wall. 258 (1872) .......... 31

Jones v. Cunningham, 371 U. S. 236 (1963) .................. 43
Kentucky v. Powers, 201 U. S. 1 (1906) ........................29, 53
LaBuy v. Howes Leather Co., 352 U. S. 249 (1957) —.30,48
Lefton, et al. v. City of Hattiesburg, Miss., No. 21441

(5th Cir., decided June 4, 1964) ...............-................... 66
Logeman v. Stock, 81 F. Supp. 337 (D. Neb. 1949) ....... 59
Lombard v. Louisiana, 373 U. S. 267 (1963) .............. 65
McClellan v. Caraland, 217 U. S. 268 (1910) .............. 31
McLaughlin Bros. v. Hallowell, 228 U. S. 278 (1913) .... 42
Metropolitan Casualty Ins. Co. v. Stevens, 312 U. S.

563 (1941) _______ ___ —...... -................................... 16,42
Miller v. Soule, 221 F. 493 (3rd Cir. 1915) .................. 66

Missouri Pacific Ey. Co. v. Fitzgerald, 160 U. S. 556
(1896) .................................. - ...........-...........-...........31,37

Mitchell v. United States, 368 U. S. 439 (1962) ........ 32
Monroe v. Pape, 365 U. S. 167 (1961) .............. ............... 65
Morey v. Lockhart, 123 U. S. 56 (1887) .......................... 37
Murray v. Louisiana, 163 U. S. 101 (1896) .................. 53
Neal v. Delaware, 103 U. S. 370 (1880) ................. ....... 51
New Jersey v. Weinberger, 38 F. 2d 298 (D. N. J.

1930) ................ .............................................................. 56
New York v. Eno, 155 U. S. 89 (1894) ......................... 45
Nielsen, Petitioner, 131 U. S. 176 (1889) ......... .......— 44
North Carolina v. Jackson, 135 F. Supp. 626 (E. D.

Ark. 1963) .................................................................... 56
Ohio v. Thomas, 173 U. S. 276 (1899) ..........................- 46
Orr v. United States, 174 F. 2d 577 (2d Cir. 1949) ..... 27
Peppers v. Balkcom, 331 F. 2d 150 (5th Cir. 1964) 48
Peterson v. Greenville, 373 U. S. 244 (1963) ................ 65
Petition of Hagewood, 200 F. Supp. 140 (E. D. Mich.

1961) ....................... ............- ....... ......................... -....... 56
Platt v. Minnesota Mining & Mfg. Co., 84 S. Ct. 769

(1964) ............................................................................ 30
Polito v. Molasky, 123 F. 2d 528 (1941), cert, denied

315 U. S. 804......... ......................................................... 66
Potts v. Elliot, 61 F. Supp. 378 (E. D. Ky. 1945) 59
Railroad Co. v. Wiswall, 23 Wall. 507 (1874) ________ 31
Rand v. Arkansas, 191 F. Supp. 20 (W. D. Ark. 1961) 56
Reece v. Georgia, 350 U. S. 85 (1955) .................... ......... 50
Schoen v. Mountain Producers Corp., 170 F. 2d 707

(3rd Cir. 1948) _____ ______________ ______ _______ 27
Smith v. Mississippi, 162 U. S. 592 (1896) ....— ........ 53
Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) ...........36, 40, 56
Stack v. Boyle, 342 U. S. 1 (1951) ................................... 43

PAGE

State of Georgia v. Tuttle, et al., 32 U. S. L. Week 3446
(IT. S. 6/22/64) -............... .......... -.................. -............ 4

Stefanelli v. Minard, 342 U. S. 117 (1951) ............-..... 46
Strauder v. West Virginia, 100 IT. S. 303 (1879) ....... 49
Taylor v. Louisiana, 370 IT. S. 156 (1962) — ................ 65
Texas v. Doris, 165 F. Supp. 738 (S. D. Tex. 1958) .... 56
Townsend v. Sain, 372 IT. S. 293 (1963) ........... -..... - ..... 66
Travelers’ Protective Ass’n of America v. Smith, et al.,

71 F. 2d 511 (4th Cir. 1934) ....... ................................. 28
Turner v. Farmers’ Loan & Trust Co., 106 IT. S. 552

(1882) ............................................................................. 31
United States v. Borden Co., 308 U. S. 188 (1939) ....... 40
United States v. Jackson, 302 U. S. 628 (1938) .............. 40
United States v. Morgan, 346 U. S. 502 (1954) ......... 32
United States v. Morgan, 358 U. S. 415 (1959) .......... 32
United States v. Noce, 268 U. S. 613 (1925) ................. 40
United States v. Bice, 327 U. S. 742 (1946) ..... 31, 35, 37, 40
United States v. Sanges, 144 U. S. 310 (1892) ....... 33
United States v. Smith, 331 U. S. 469 (1947) ...... ....... 30
United States Alkali Export Assn. v. United States,

325 U. S. 196 (1945) ...................................................... 40
Van Newkirk v. District Attorney, 123 F. Supp. 61

(E. D. N. Y. 1963) ......... ..............................................- 56
Virginia v. Rives, 100 U. S. 313 (1879) ........................ 50
Waley v. Johnston, 316 U. S. 101 (1942) ...................... 44
Waugamann v. United States, 331 F. 2d 189 (5th Cir.

1964) _____________- ..............- ................................. 43
Wells, Ex parte, 3 Wood. 128 (1878) ............................. 56
Wildenhus’s Case, 120 U. S. 1 (1887) ........ .................. 46
Williams v. Mississippi, 170 U. S. 213 (1898) .........— 53
Wright v. Georgia, 373 U. S. 284 (1963) ........ ............-45, 65
Yick Wo v. Hopkins, 118 U. S. 356 (1886) .................. 65

PAGE

V ll
PAGE

F ederal Statutes and Rules

28 U. S. C. §1291 (1958) ...
28 IT. S. C. §1331 (1958) ...
28 U. S. C. §1332 (1958) ...
28 U. S. C. §1354 (1958) ...
28 U. S. C. §1441 (1958) ....
28 U. S. C. §1442 (1958) ...
28 U. S. C. §1443 (1958) ....

28 IT. S. C. §1444 (1958) ...
28 U. S. C. §1446 (1958) ....
28 IT. S. C. §1447 (1958) ..

28 IT. S. C. §1651 (1958) ....
28 IT. S. C. §2107 (1958) ...
28 U. S. C. §2241 (1958) ...
28 II. S. C. §2253 (1958) ...
28 IT. S. C. §2254 (1958) ....
28 IT. S. C. §2283 (1958) ...
42 IT. S. C. §1981-86 (1958)
42 IT. S. C. §1988 (1958) ...

......................... 4, 30, 31
............................ 18

........................................ 18
......................................... 18
...................................8, 25-26
............ ...................... ............. . . . 8, 25, 59, 64
1, 4, 5, 8,16,18, 25, 28, 29, 39,

43, 51, 58, 59, 61, 62, 64, 65
..................................... 8
......................16-17, 26, 68
.5, 26, 27, 28, 30, 32, 33, 34,

36, 38, 40, 43, 66, 67, 68
....................... 5, 28, 30, 42
.................... ....... ...... 48

.5, 29, 38, 43
.........29, 48
...........6,46
.......... 17
.......... 39
.........39,65

Civil Rights Act of 1964, 78 Stat. 241:
Title II, §201 (d) ................ ................. -................. 65
Title II, §205(a) ........................................................ 65
Title IX, §901 ........................................................... 7, 27

Fed. Rule Civ. Pro. 73(a) ----------------------- --------- -------- 48
Fed. Rule Civ. Pro. 81...... ... .......— .... - ...... ..........6, 30, 32,48
Fed. Rule Crim. Pro. 37 .......................................6, 28, 29, 48
Fed. Rule Crim. Pro. 52(a) ... ......................................... 32
Fed. Rule Crim. Pro. 54(b)(1) ....—..... - ..................... — 28
28 IT. S. C. §71 (1940) .................. ....... -......... -................ 25
28 IT. S. C. §72 (1940) ................................................... 25
28 U. S. C. §73 (1940) ...................................................... 25
28 U. S. C. §74 (1940) ..............................................15-16, 61

vm
PAGE

Eev. Stat. §563 ................ ..... ........................................... 18
Eev. Stat. §629 .............. ......... ......................................... 18
Eev. Stat. §641......................................... .13-15,17, 23, 39,41,

42, 49, 52, 61
Eev. Stat. §642 ................................................................. 22
Eev. Stat. §643 .......... ....................................................... 22
Eev. Stat. §716 ............. ..... ...... ........................ ............... 42
Eev. Stat. §722 ..........................................................22, 39, 42
Eev. Stat., Title 24 ............... ..........................................22, 39
Act of September 24, 1789, eh. 20, §12, 1 Stat. 73, 79-80 9
Act of February 13,1801, ch. IV, §11, 2 Stat. 89, 92 ....... 18
Act of March 8,1802, ch. VIII, 2 Stat. 132...................... 18
Act of February 4, 1815, ch. 31, §8, 3 Stat. 195, 198 .....9,10,

59, 64
Act of March 3,1815, ch. 93, §6, 3 Stat. 231, 233 ............ 60
Act of March 2,1833, ch. 57, 4 Stat. 632 .................. 10, 60, 64
Act of March 3,1863, ch. 81, §5,12 Stat. 755, 756 ....10, 59, 61,

62, 63
Act of March 7, 1864, ch. 20, §9, 13 Stat. 14, 1 7 ......... 60, 64
Act of June 30,1864, ch. 173, §50,13 Stat. 223, 241 ......60, 64
Act of March 3, 1865, ch. 90, 13 Stat. 507 ...................... 63
Act of April 9, 1866, ch. 31, 14 Stat. 27 .......11-13, 39, 42,47,

49, 61, 62, 63, 64
Act of May 11,1866, ch. 80,14 Stat. 46 ......................... 10, 64
Act of July 13,1866, ch. 184, 14 Stat. 98 ........................ 60
Act of July 16,1866,14 Stat. 173..................................... 63
Act of February 5, 1867, ch. 28, §1, 14 Stat. 385 .......... 38, 47
Act of May 31, 1870, ch. 114, §16-18, 16 Stat. 140, 144

(Enforcement Act) .......................................... 13-14, 39, 61
Act of March 1, 1875, ch. 114, 18 Stat. 335 ..................17, 22
Act of March 3,1875, ch. 137,18 Stat. 470 ....18,19, 20, 22, 23,

24, 25, 33, 34, 41
Act of March 3,1885, ch. 353, 23 Stat. 437 ...................... 38

Act of March 3,1887, ch. 373, 24 Stat. 552 ...19-22, 23, 24, 25,
33, 34, 35, 36, 38,

39, 40, 41, 42
Act of August 13, 1888, ch. 866, 25 Stat. 433 .......... 19-22, 34
Act of January 20,1914, ch. 11, 38 Stat. 278 .................. 25
Act of January 31, 1928, ch. 14, 45 Stat. 54 .................. 25
Act of June 25,1948, ch. 646, §1443, 62 Stat. 869, 938 ...16, 24
Act of May 24, 1949, ch. 139, §84(b), 63 Stat. 89, 102 .... 26
Judicial Code of 1911, §28-30, 36 Stat. 1087, 1094-

1095 ....................................................... ..... 23-24, 25, 33, 36
Judicial Code of 1911, §31, 36 Stat. 1087,1096 ....15, 23, 39, 61
Judicial Code of 1911, §297, 36 Stat. 1087, 1168 ....15, 23, 24,

40, 61

State Constitutions and Statutes

PAGE

Ark. Const., Art. 2, §§8 and 10 ......................................... 67
Ark. Const. Amend. 21 .................................................... 67
Ark. Stat, Ann. §§43-1204 and 43-1205 .......................... 67
Fla. Const. Art. 5, § 9 ........................................................ 67
Fla. Stat, Ann. §§32.18 and 906.18 ................................. 67
Ga. Const. Art, 1, §§1, 5 .................................................... 67
Ga. Code Ann. §26-3005 (1963 Supp.) ..........................1, 3, 7
Ga. Code Ann. §27-704 ........... ........................................ 67
Ga. Code Ann. §27-1403 .................................................... 67
La, Const. Art. 1, §9 ........................................................ 67
La. Stat, Ann., §15:332.1 .................... .............................. 67
Miss. Const. Art. 3, §§26 and 2 7 ..................................... 67
Miss. Code Ann. §2505 .................................................... 67
S. C. Const,, Art. 1, §17.................... - ....................... -..... 67
Code of S. C., Titles 17-401 and 17-408 .......................... 67
Tenn. Const. Art. 1, §9 ................. .................................. 67
Tenn. Code Ann. §40-1703 and 40-2008 ......................... 67
Tex. Const. Art. 1, §10 ........................... -....................... 67

PAGE

Vernon’s Ann. C. C. P., Arts. 413, 415, 487-490 .............. 67
W. Va. Const., Art. 3, §§4 and 14 ..................................... 67
W. Va. Code c. 6190.......................................................... 67

Other A uthorities

Bator, Finality in Criminal Law and Federal Habeas
Corpus for State Prisoners, 76 Harv. L. Rev. 441
(1963) ......... 35

Cong. Globe, 39th Cong., 1st Sess. 4150-51 (7/25/1866) 45
95 Cong. Rec. 5020 (1949) ................................................ 26
95 Cong. Rec. 5827 (1949) ............................................ 26, 32
Desty, The Removal of Causes From State to Federal

Courts (3d ed. 1893) .................................................... 36
Dillon, Removal of Causes From State Courts to Fed

eral Courts (5th ed. 1889) ............................................ 36
III Elliot’s Debates (1836) ............................................... 9
I Farrand, Records of the Federal Convention (1911) .. 8
The Federalist, No. 80 (Hamilton) (Warner, Phila

delphia ed. 1818) ............................................................. 8, 9
The Federalist, No. 81 (Hamilton) (Warner, Philadel

phia ed. 1818) ........... 8
Frankfurter & Landis, The Business of the Supreme

Court (1928) ............................................................... 18,35
Hart & Wechsler, The Federal Courts and the Fed

eral System (1953) ........................................................8,33
H. R. Rep. No. 352, 81st Cong., 1st Sess. (1949) .......... 26
H. R, Rep. No. 1078, 49th Cong., 1st Sess. (1886) .......... 35
McKitrick, Andrew Johnson and Reconstruction (1960) 46
1 Morrison & Commager, Growth of the American Re

public (4th ed. 1950) .................................................... 10
Randall, The Civil War and Reconstruction (1937) ..... 46
Speer, Removal of Causes From the State to Federal

Courts (1888) ............................................................... 36

I n the

UxnUh (Hxtwt nf K p p m b
F or the F ifth Circuit

No. 21354

T homas Rachel, et al,
Appellants,

T he State of Georgia,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

Statement of the Case

Appellants are twenty Negro and white persons charged
by special presentment of the July-August, 1963 Term of
the Grand Jury of Fulton County, Georgia with violating
Title 26, Georgia Code Annotated, Section 3005, refusing
and failing to leave the premises of another when requested
to do so, a misdemeanor (R. 2-3).

On February 17, 1964, prior to their cases being reached
for trial before the Honorable Durwood T. Pye, Judge,
Fulton Superior Court, Atlanta Judicial Circuit, appel
lants tiled a verified removal petition in the United States
District Court for the Northern District of Georgia,
Atlanta Division (R. 2-5, 7). Removal was sought pur
suant to Title 28, U. S. C. A., 1443(1) and (2) (R. 6).

In their verified removal petition, appellants alleged that
their arrests by members of the Atlanta Police Depart
ment at various hotels, cafeterias, and restaurants within

the City of Atlanta in the spring and early summer of
1963 had been “ 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 re
spect to serving and seating members of the Negro race
in . . . places of public accommodation and convenience
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 white . . . race are
similarly treated and discriminated against when accom
panied by members of the Negro race” (R. 2-5).

Appellants sought removal “to protect rights guaranteed”
under the due process and equal protection clause of the
Fourteenth Amendment and to protect First Amendment
rights “ of free speech, association, and assembly . . . ”
(R, 6).

Appellants, also, averred that they were “being prose
cuted for acts done under color of authority derived from
the Constitution and laws of the United States and for
refusing to do acts inconsistent with the Constitution and
laws of the United States” (R. 6).

The following day, without hearing or argument, United
States District Judge Boyd Sloan remanded sua sponte
and held that “the petition for removal to this Court does
not allege facts sufficient to justify . . . removal.” Judge
Sloan construed section 1443 to be inapplicable “where a
party is deprived of any civil right by reason of discrimi
nation or illegal acts of individuals or judicial or adminis
trative officers” (R. 14).

On March 5, 1964, appellants filed notice of appeal from
the District Judge’s order (R. 16).

Appellants herein, on March 12, 1964, filed a motion for
stay pending appeal in the Court of Appeals for the Fifth

Circuit, to which was annexed a copy of the verified re
moval petition and the removal order. The motion recited
that Judge Pye had ordered defendants in other cases
pending on his calendar involving alleged violations of
Title 26-3005 to show cause why their appearance bonds
should not be increased and why fresh surety should not
be given and that movants (Appellants herein) stood
threatened with the immediate prospect of their bonds
being increased. Judge Pye had already increased the bond
of one accused misdemeanant from $500 to $7000. If appel
lants’ bonds were increased, many of them would be re
quired to remain in jail because of inability to make the
increased bond. Their motion further recited that the crim
inal prosecutions prevented them from exercising rights
under the federal Constitution and laws, that if the District
Judge had granted a hearing appellants herein would have
shown facts sustaining federal removal jurisdiction, and
that unless a stay were granted substantial issues raised
by appellants would become moot (App. 71).#

Also on March 12th, the State of Georgia moved to dis
miss the appeal and to deny the stay, arguing that the
Court of Appeals was without jurisdiction of the case (R.
26-30).

The same day, on the authority of Congress of Racial
Equality v. City of Clinton, Louisiana (now pending for
decision on the merits in this Court), the Court of Appeals
ordered the remand order “ stayed pending final disposition
of this appeal on the merits or the earlier order of [the]
Court” (R. 32). District Judge Carswell, sitting by desig
nation, dissented (R. 32). *

* Through inadvertence the appellants’ motion for stay pending
appeal was omitted from the printed record and is reproduced as
an appendix to the appellants’ brief in order to expedite the appeal
and to avoid the costs of preparing a supplemental record. The
motion for stay is properly before this Court since it was timely
designated as a part of the record on appeal (R. 18).

On April 1, 1964, Judge Pye ordered the Solicitor Gen
eral, Atlanta Judicial Circuit, to apply to the Supreme
Court of the United States for writs of mandamus and
prohibition against this Court directing the Court to vacate
its stay order and to proceed no further with the case. In
a memorandum order, appellee’s application for leave to
file a petition for extraordinary relief was denied by the
Supreme Court of the United States on June 22, 1964.
State of Georgia v. Tuttle, et al., 32 U. S. L. Week 3446
(U. S. 6/22/64).*

Statutes and Rules

28 U. S. C. §1291 (1958):
§1291. Final decisions of district courts.

The courts of appeals shall have jurisdiction of ap
peals from all final decisions of the district courts of
the United States, . . .

28 U. S. C. §1443 (1958):
§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; *

* On this appeal, appellants substantially repeat their argument
first made in opposition to the motion of the State of Georgia in
the Supreme Court of the United States for extraordinary relief
in State of Georgia v. Tuttle, et al., supra.

(2) For any act under color of authority derived
from any law providing for equal rights, or for refus
ing to do any act on the ground that it would be in
consistent with such law.

28 TJ. S. C. §1447(d) (1958):
%1447. Procedure after removal generally.

(d) An order remanding a case to the State court
from which it was removed is not reviewable on appeal
or otherwise. . . .

28 IT. S. C. §1651 (1958):
§1651. Writs.

(a) The Supreme Court and all courts established
by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.

28 U. S. C. §2241 (1958):
§2241. Power to grant writ.

(a) Writs of habeas corpus may be granted by the
Supreme Court, any justice thereof, the district courts
and any circuit judge within their respective jurisdic
tions. The order of a circuit judge shall be entered in
the records of the district court of the district wherein
the restraint complained of is had.

(b) The Supreme Court, any justice thereof, and any
circuit judge may decline to entertain an application
for a writ of habeas corpus and may transfer the ap
plication for hearing and determination to the district
court having jurisdiction to entertain it.

(3) He is in custody in violation of the Constitu
tion or laws or treaties of the United States; . . .

28 U. S. C. §2254 (1958):
§2254. State custody; remedies in State Courts.

An application for a writ of habeas corpus in behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that
the applicant has exhausted the remedies available in
the courts of the State, or that there is either an ab
sence of available State corrective process or the exist
ence of circumstances rendering such process ineffec
tive to protect the rights of the prisoner.

An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under
the law of the State to raise, by any available pro
cedure, the question presented.

Fed. Eule Civ. Pro. 81 (b ) :
(b) Scire Facias and Mandamus. The writs of scire

facias and mandamus are abolished. Eelief heretofore
available by mandamus or scire facias may be obtained
by appropriate action or by appropriate motion under
the practice prescribed in these rules.

Fed. Eule Crim. Pro. 37:
Eule 37.
(a) Taking Appeal to a Court of Appeals.

(1) Notice of Appeal. An appeal permitted by law
from a district court to a court of appeals is taken by

filing with the clerk of the district court a notice of
appeal in duplicate. . . .

(2) Time for Taking Appeal. An appeal by a defen
dant may be taken within 10 days after entry of the
judgment or order appealed from. . . .

Ga. Code Ann. §26-3005 (1963 Supp.):
26-3005. Refusal to leave premises of 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 I960,
p. 142.)

Civil Rights Act of 1964, 78 Stat. 241 (P. L. 88-352):

T itle IX— Intervention and Procedure A fter
Removal in Civil Rights Cases

Sec. 901. Title 28 of the United States Code, section
1447(d), is amended to read as follows:

“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.”

Statutory History

Since the inception of the Government, federal removal
jurisdiction has been progressively expanded by Congress1
to protect national interests in eases “ in which the state
tribunals cannot be supposed to be impartial and un
biassed,” 2 for, as Hamilton wrote in The Federalist, “The
most discerning cannot foresee how far the prevalency of
a local spirit may be found to disqualify the local tribunals
for the jurisdiction of national causes. . . . ” 3 In the fed
eral convention Madison pointed out the need for such
protection, just before he successfully moved the Commit
tee of the Whole to authorize the national legislature to
create inferior federal courts:4

“ Mr. [Madison] observed that unless inferior tri
bunals were dispersed throughout the Eepublic with
final jurisdiction in many cases, appeals would be
multiplied to a most oppressive degree; that besides, an

1 See H art & W echsler, T he F ederal Courts and the F ederal
System 1147-1150 (1953). Before 1887, the requisites for removal
jurisdiction were stated independently of those for original fed
eral jurisdiction; since 1887, the statutory scheme has been to
authorize 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 inter
est: suits or prosecutions against federal officers, military per
sonnel, persons unable to enforce their equal civil rights in the
state courts, person acting under color of authority derived from
federal law providing for equal rights or refusing to do an act
inconsistent with such law, the United States (in foreclosure ac
tions), etc. 28 U. S. C. §§1441-1444 (1958); see H art & W echsler,
supra, at 1019-1020.

2 T he F ederalist, N o. 80 (Hamilton) (Warner, Philadelphia ed.
1818), at 429.

3 Id., No. 81, at 439.
41 F arrand, Records of the F ederal Convention 125 (1911).

Mr. Wilson and Mr. Madison moved the matter in pursuance of
a suggestion of Mr. Dickinson.

appeal would not in many cases be a remedy. Wliat
was to be done after improper Verdicts in State tri
bunals obtained under the biassed directions of a de
pendent 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.
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.” 5

The Judiciary Act of 1789 allowed removal in specified
classes of cases where it was particularly thought that
local prejudice would impair national concerns,6 and exten
sions of the removal jurisdiction were employed in 1815
and 1833 to shield federal customs officials, respectively,
against New England’s resistance to the War of 1812 and
South Carolina’s resistance to the tariff.7 The 1815 act al

51 id. 124.
6 The Act of (September 24, 1789, ch. 20, §12, 1 Stat. 73, 79-80,

authorized removal in three classes of cases where more than $500
was in dispute: suits by a citizen of the forum state against an out-
stater; 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 de
scribed by Hamilton as situations “ in which the state tribunals
cannot be supposed to be impartial,” T he F ederalist, No. 80
(Warner, Philadelphia ed. 1818), at 432; and 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. . . . ” I l l E lliot ’s D ebates 583 (1836).

7 Act of February 4, 1815, ch. 31, §8, 3 Stat. 195, 198. Concern
ing Northern resistance to the War culminating in the Hartford

lowed removal of “any suit or prosecution” (save prosecu
tions for offenses involving corporal punishment) com
menced in a state court against federal officers or other
persons acting under color of the act or as customs officers,
3 Stat. 198; the 1833 act allowed removal in any case where
“ suit for prosecution” was commenced in a state court
against any federal officer or other person acting under
color of the revenue laws, or on account of any authority
claimed under the revenue laws, 4 Stat. 633.

Congress was thus acting within a tradition of enforcing
national policies against resistant localities by use of the
removal jurisdiction when, in 1863, it provided “ That 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 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 derived from or exercised by or under the
President of the United States, or any act of Congress,”
the defendant might remove the proceeding into a circuit
court of the United States. Act of March 3, 1863, ch. 81,
■§5, 12 Stat. 755, 756. Certain procedural amendments to
the 1863 act were effected by the Act of May 11,1866, ch. 80,
14 Stat. 46, which also provided in its fourth section “ That
if the State court shall, notwithstanding the performance

Convention of 1814-1815, see 1 M oeison & Commager, Grow th
of th e A merican R epublic 426-429 (4th ed. 1950).

Act of March 2, 1833, ch. 57, §3, 4 Stat. 632, 633. Concerning
South Carolina’s resistance to the successive tariffs, culminating
in the nullification ordinance, see 1 M orison & Commager, supra
475-485. The Force Act of March 2, 1833, responded to the South
ern threat not merely by extending the removal jurisdiction of the
federal courts, but by establishing a new head of habeas corpus
jurisdiction. Section 7, 4 Stat. 632, 634. See Fay v. Noia, 372 U. S.
391,401 n. 9 (1963).

of all things required for the removal of the ease to the
circuit court . . . , proceed further in said cause or prose
cution [before receipt of a certificate from the circuit court
stating that the removal has not been perfected] . . . , then,
in that case, all such further proceedings shall be void and
of none effect. . . . ”

Earlier in the same 1866 session, Congress passed, over
the presidential veto, the first civil rights act, Act of April
9, 1866, ch. 31, 14 Stat. 27. The first and third sections of
the Act, reproduced below, significantly expanded federal
removal jurisdiction within the traditions of the 1815, 1833
and 1863 enforcement legislation:

“Be it enacted by the Senate and House of Repre
sentatives of the United States of America in Congress
assembled, 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 condition of
slavery or involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly
convicted, shall have the same right, in every State and
Territory 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.

“ Sec. 2. And be it further enacted, That any person
who, under color of any law, statute, ordinance, regu
lation, or custom, shall subject, or cause to be subjected,

any inhabitant of any State or Territory to the depriva
tion of any right secured or protected by this act, or
to different punishment, pains, or penalties on account
of such person having at any time been held in a condi
tion of slavery or involuntary servitude, except as a
punishment for crime whereof the party shall have
been duly convicted, or by reason of his color or race,
than is prescribed for the punishment of white persons,
shall be deemed guilty of a misdemeanor, and, on con
viction, shall be punished by fine not exceeding one
thousand dollars, or imprisonment not exceeding one
year, or both, in the discretion of the court,

“ Sec. 3. And be 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 such person, for any cause
whatsoever, or against any officer, civil or military, or
other person, for any arrest or imprisonment, tres
passes, or wrongs done or committed by virtue or un
der color of authority derived from this act or the act
establishing a Bureau for the relief of Freedmen and
Refugees, and all acts amendatory thereof, or for re
fusing to do any act upon the ground that it would be
inconsistent 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 ju
dicial proceedings in certain cases,’ approved March
three, eighteen hundred and sixty-three, and all acts
amendatory thereof. The jurisdiction in civil and crim
inal matters hereby conferred on the district and cir
cuit 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.”

The 1866 statute was reenacted by reference in the civil
rights act of 1870,8 and, with stylistic changes, became
Rev. Stat. §641:

8 The Enforcement Act of May 31, 1870, ch. 114, §§16-18, 16
Stat. 140,144:

“ Sec . 16. And he it further enacted, That all persons with
in the jurisdiction of the United States shall have the same
right in every State and Territory in the United States to
make and enforce contracts, to sue, be parties, give evidence,
and to the 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, pen
alties, taxes, licenses, and exactions of every kind, and none
other, any law, statute, ordinance, regulation, or custom ̂ to
the contrary notwithstanding. No tax or charge shall be im
posed or enforced by any State upon any person immigrating
thereto from a foreign country which is not equally imposed
and enforced upon every person immigrating to such State

“ Sec. 641. When any civil snit or criminal prose
cution 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, or in
the part of the State where such suit or prosecution is
pending, any right secured to him by any law provid
ing 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 defendant, 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

from any other foreign country; and any law of any State in
conflict with this provision is hereby declared null and void.

“ Sec . 17. And be it further enacted, That any person who,
under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant
of any State or Territory to the deprivation of any right
secured or protected by the last preceding section of this act,
or to different punishment, pains, or penalties on account of
such person being an alien, or by reason of his color or race,
than is prescribed for the punishment of citizens, shall be
deemed guilty of a misdemeanor, and, on conviction, shall be
punished by fine not exceeding one thousand dollars, or im
prisonment not exceeding one year, or both, in the discretion of
the court.

“ Sec . 18. And be it further enacted, That the act to pro
tect all persons in the United States in their civil rights, and
furnish the means of their vindication, passed April nine,
eighteen hundred and sixty-six, is hereby re-enacted; and sec
tions sixteen and seventeen hereof shall be enforced according
to the provisions of said act.”

held in the district where it is pending. Upon the filing
of such petition all further proceedings 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 Ilev. Stat. §6419 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.10 Section 31 ver
batim became 28 U. S. C. §74 (1940),11 and in 1948, with

9 Judicial Code of 1911, §297, 36 Stat. 1087,1168.
10 Judicial Code of 1911, §31, 36 Stat. 1087,1096:

“ Sec. 31. When any civil suit or criminal prosecution is
commenced in any State court, for any cause whatsoever,
against any person who is denied or cannot enforce in the
judicial tribunals of the State, or in the part 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 tres
passes 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 prose
cution may, upon the petition of such defendant, 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 district court to be held in the district
where it is pending. Upon the filing of such petition all fur
ther proceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided. . . . ”

11 28 U. S. C. §74 (1940) :
“ §74. (Judicial Code, section 31.) Same; causes against

persons denied civil rights.
“When any civil suit or criminal prosecution is commenced

in any State court, for any cause whatsoever, against any
person who is denied or cannot enforce in the judicial tri
bunals of the State, or in the part 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

changes in phraseology,12 it assumed its present form as
28 U. S. C. §1443 (1958) :13

“§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:

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 prose
cution may, upon the petition of such defendant, 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 district court to be held in the district
where it is pending. Upon the filing of such petition all fur
ther proceedings in the State courts shall cease, and shall not
be resumed except as hereinafter provided. . . . ”

12 Revisor’s Note to 28 U. S. C. §1443 (1958) :
U
“Words ‘or in the part of the State where such suit or

prosecution is pending’ after ‘courts of such States,’ [sic]
were omitted as unnecessary.

“ Changes were made in phraseology.”
13 Act of June 25, 1948, ch. 646, §1443, 62 Stat. 869, 938. The

1948 Code made important changes in removal procedure. Prior
to 1948, a party seeking to remove a case or prosecution filed a
removal petition in the state court where the case was pending.
The state court passed upon the propriety of removal and granted
or denied the petition. Its denial was subject to direct review in
the state appellate courts and ultimately in the Supreme Court of
the United States, or to collateral attack by the filing of the record
in the lower federal court to which removal was authorized by
statute. See Metropolitan Casualty Ins. Co. v. Stevens, 312 U. S.
563 (1941). Under the 1948 Code the removal petition in “ any
civil action or criminal prosecution” is filed in the first instance in
the federal district court, 28 U. S. C. §1446(a) (1958), which alone

“ (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 juris
diction thereof;

“ (2) For any act under color of authority derived
from any law providing for equal rights, or for refus
ing to do any act on the ground that it would be in
consistent with such law.”

All of the statutes thus far traced from 1815 to the 1948
codification dealt with the removal of civil and criminal
actions against federal officers and others acting under
federal authority; and after 1866 specifically with the re
moval of civil and criminal actions against officers and
persons enforcing, or obedient to, federal civil rights legis
lation or who could not enforce their equal civil rights
in the state courts. In 1875, the fourth and last nineteenth
century civil rights act was enacted, granting to all per
sons within the United States further “ equal civil rights”
(Rev. Stat. §641, supra) enforceable under inter alia the
removal provisions of the act of 1866 codified in §641.
Act of March 1, 1875, ch. 114, 18 Stat. 335. In the same
year, a distinct statutory development extended the removal

decides whether or not removal is allowable. Removal petitions in
civil actions must be filed within 20 days following receipt of the
initial pleading (or the first subsequent pleading stating a remov
able case, where the case stated by the initial pleading is not re
movable), but removable petitions in criminal prosecutions may be
filed at any time before trial. 28 U. S. C. §1446 (b), (e) (1958).
Filing of a copy of the removal petition with the clerk of the state
court effects removal and deprives the state court of jurisdiction
to proceed. 28 U. S. C. §1446(e) (1958). As under earlier practice,
the federal court to which removal is effected may stay subsequent
state proceedings, 28 U. S. C. §2283 (1958), and, in criminal prose
cutions, takes the defendant into federal custody by habeas corpus,
28 U. S. C. §1446(f) (1958).

jurisdiction in quite different directions and for quite dif
ferent purposes. This was the Judiciary Act of 1875 which,
beginning as a bill to expand the diversity jurisdiction,
was enacted as a regulation of the general civil (non-
civil-rights) jurisdiction of the circuit courts of the United
States. Act of March 3, 1875, ch. 137, 18 Stat. 470. This
act for the first time14 15 gave the lower federal courts origi
nal federal-question jurisdiction; its first section gave
the circuit courts jurisdiction “ of all suits of a civil nature
at common law or in equity” involving the requisite juris
dictional amount and “ arising under” federal law, or be
tween citizens of different states, or citizens of a State and
foreign states or subjects, or between citizens of the same
State claiming under land grants of different States, or
where the United States was plaintiff. 18 Stat. 470. No
original civil-rights jurisdiction was given; this had been
specially created by the civil rights acts and was codified,
in pertinent part, in Eev. Stat. §629, Sixteenth, Seventeenth,
Eighteenth,16 now 28 U. S. C. §1343(1), (2), (3) (1958).17
Section 1 of the 1875 Judiciary Act also gave the circuit
courts exclusive criminal jurisdiction “ of all crimes and
offenses cognizable under the authority of the United
States, except as otherwise provided by law, and concur
rent jurisdiction with the district courts of the crimes and
offenses cognizable therein.” 18 Stat. 470. Sections 2

14 F rankfurter & L andis, The B usiness op th e Supreme Court
66-68 (1928).

15 Excepting the short-lived federalist Act of February 13, 1801,
ch. IV, §11, 2 Stat. 89, 92, repealed by the Act of March 8, 1802,
ch. V lil , 2 Stat. 132.

16 The civil rights jurisdiction of the district courts was sepa
rately codified in Rev. Stat. §563, Eleventh, Twelfth.

17 Original federal jurisdiction in federal question, diversity, and
diversity land grant cases is now provided respectively by 28
u. S. C. §§1331,1332,1354 (1958).

through 7 of the act dealt with removal jurisdiction. They
authorized removal of “ any suit of a civil nature, at law
or in equity” involving the requisite jurisdictional amount
and “ arising under” federal law, or between citizens of
different States, or citizens of a State and foreign states
or subjects, or between citizens of the same State claiming
under land grants of different States, or where the United
States was plaintiff. 18 Stat. 470-471. No civil-rights
removal jurisdiction was given, nor any removal jurisdic
tion over criminal cases. Section 5 of the act provided
that, whenever it appeared that jurisdiction of an original
or removed suit was lacking, the circuit court should dis
miss or remand the suit to the state court as justice might
require; “ but the order of said circuit court dismissing or
remanding said cause to the State court shall be reviewable
by the Supreme Court on writ of error or appeal, as the
case may be.” 18 Stat. 472.18

The Act of March 3, 1887, ch. 373, 24 Stat. 552, amended
to correct enrollment by the Act of August 13, 1888, ch.
866, 25 Stat. 433, extensively amended the Judiciary Act
of 1875. Although it left the original jurisdiction largely
unaltered (the jurisdictional minimum was raised from
$500 to $2,000, and creation of diversity jurisdiction by

18 “ Sec. 5. That if, in any suit commenced in a circuit court or
removed from a State court to a circuit court of the United States,
it shall appear to the satisfaction of said circuit court, at any time
after such suit has been brought or removed thereto, that such
suit does not really and substantially involve a dispute or con
troversy properly within the jurisdiction of said circuit court, or
that the parties to said suit have been improperly or collusively
made or joined, either as plaintiffs or defendants, for the purpose
of creating a case cognizable or removable under this act, the said
circuit court shall proceed no further therein, but shall dismiss
the suit or remand it to the court from which it was removed as
justice may require, and shall make such order as to costs as shall
be just; but the order of said circuit court dismissing or remanding
said cause to the State court shall be reviewable by the Supreme
Court on writ of error or appeal, as the case may be.”

assignment of a negotiable instrument was precluded), tbe
Act of 1887 fundamentally rewrote the jurisdictional
grounds for, and the procedure in, civil removal eases.
Section 1, 25 Stat. 434-435, in pertinent part, provided:

“ That the second section of said act [of 1875] be,
and the same is hereby, amended so as to read as fol
lows :

“ Sec. 2. That any suit of a civil nature, at law or
in equity, arising under the Constitution or laws of
the United States, or treaties made, or which shall be
made, under their authority, of which the circuit courts
of the United States are given original jurisdiction
by the preceding section, which may now be pending,
or which may hereafter be brought, in any State court,
may be removed by the defendant or defendants therein
to the circuit court of the United States for the proper-
district. Any other suit of a civil nature, at law or
in equity, of which the circuit courts of the United
States are given jurisdiction by the preceding section,
and which are now pending, or which may hereafter
be brought, in any State court, may be removed into
the circuit court of the United States for the proper
district by the defendant or defendants therein, being
non-residents of that State. And when in any suit
mentioned in this section there shall be a controversy
which is wholly between citizens of different States, and
which can be fully determined as between them, then
either one or more of the defendants actually inter
ested in such controversy may remove said suit into
the circuit court of the United States for the proper
district. And where a suit is now pending, or may be
hereafter brought, in any State court, in which there
is a controversy between a citizen of the State in which
the suit is brought and a citizen of another State, any

defendant, being snch citizen of another State, may
remove snch suit into the circuit court of the United
States for the proper district, at any time before the
trial thereof, when it shall be made to appear to said
circuit court that from prejudice or local influence he
will not be able to obtain justice in such State court, or
in any other State court to which the said defendant
may, under the laws of the State, have the right, on
account of such prejudice or local influence, to remove
said cause: Provided, That if it further appear that
said suit can be fully and justly determined as to the
other defendants in the State court, without being
affected by such prejudice or local influence, and that
no party to the suit will be prejudiced by a separation
of the parties, said circuit court may direct the suit
to be remanded, so far as relates to such other defen
dants, to the State court, to be proceeded with therein.

“At any time before the trial of any suit which is
now pending in any circuit court or may hereafter be
entered therein, and which has been removed to said
court from a State court on the affidavit of any party
plaintiff that he had reason to believe and did believe
that, from prejudice or local influence, he was unable
to obtain justice in said State court, the circuit court
shall, on application of the other party, examine into
the truth of said affidavit and the grounds thereof,
and, unless it shall appear to the satisfaction of said
court that said party will not be able to obtain justice
in such State court, it shall cause the same to be re
manded thereto.

“Whenever any cause shall be removed from any
State court into any circuit court of the United States,
and the circuit court shall decide that the cause was
improperly removed, and order the same to be re
manded to the State court from whence it came, such

2 2

remand shall be immediately carried into execution,
and no appeal or writ of error from the decision of the
circuit court so remanding such cause shall be allowed.”

Section 6 of the 1887 act provided: “That the last para
graph of section five of the act [of 1875; this reference is
to the review provision of §5, supra p. 19, n. 18] . . . and
all laws and parts of laws in conflict with the provisions of
this act, be, and the same are hereby repealed. . . . ” 25
Stat. 436-437. But §5 of the 1887 act contained this saving
clause:

“ Sec. 5. That nothing in this act shall be held,
deemed, or construed to repeal or affect any juris
diction or right mentioned either in sections six hun
dred and forty-one, or in six hundred and forty-two, or
in six hundred and forty-three, or in seven hundred and
twenty-two, or in title twenty-four of the Revised Stat
utes of the United States, or mentioned in section eight
of the act of Congress of which this act is an amend
ment, or in the act of Congress approved March first,
eighteen hundred and seventy-five, entitled ‘An act to
protect all citizens in their civil and legal rights.’ ” 19

Like the Act of 1875 which it amended, the Act of 1887 did
not affect federal removal jurisdiction in criminal cases. 10

10 The provisions to which reference is made are as follows:
§641 is the civil rights (civil and criminal) removal statute set
out supra pp. 14-15; §642 requires the clerk of the circuit court to
issue a writ of habeas corpus cum causa for the body of the defen
dant who has removed any suit or prosecution under §641; §643
authorizes removal of “any civil suit or criminal prosecution”
against a federal revenue officer, or any officer or person acting
under the federal voting laws; §722 describes the law to be applied
in civil rights (civil and criminal) removed cases; title 24 of the
Revised Statutes is the civil rights title; §8 of the Judiciary Act
of 1875 provides for service of process on absent defendants in civil
actions to enforce or remove liens or incumbrances on property
within the court’s jurisdiction; the Act of March 1, 1875, is the
fourth civil rights act, supra p. 17.

As indicated above, the Judicial Code of 1911 technically
repealed Rev. Stat. §641, for the purpose of abolishing the
jurisdiction of the circuit courts. It carried forward §641’s
exact provisions as a grant of civil rights (civil and crim
inal) removal jurisdiction to the district courts by virtue
of Judicial Code §31, supra, p. 15, n. 10. The civil (non-
civil-rights) removal provisions of the Judiciary Act of
1887, amending that of 1875, were carried forward virtu
ally unchanged as Judicial Code §§28-30. Section 28, the
principal provision, reenacted inter alia the 1887 prohibi
tion of appellate review of remand orders, supra pp. 21, 22.20

20 36 Stat. 1094-1095. Italicized in pertinent part, §28 reads:
Sec. 28. Any suit of a civil nature, at law or in equity,

arising under the Constitution or laws of the United States,
or treaties made, or which shall be made, under their authority,
of which the district courts of the United States are given
original jurisdiction by this title, which may now be pending
or which may hereafter be brought, in any State court, may
be removed by the defendant or defendants therein to the
district court of the United States for the proper district.
Any other suit of a civil nature, at law or in equity, of which
the district courts of the United States are given jurisdiction
by this title, and which are now pending or which may here
after be brought, in any State court, may be removed into the
district court of the United States for the proper district by
the defendant or defendants therein, being non-residents of
that State. And when in any suit mentioned in this section
there shall be a controversy which is wholly between citizens
of different States, and which can be fully determined as be
tween them, then either one or more of the defendants actu
ally interested in such controversy may remove said suit into
the district court of the United States for the proper district.
And where a suit is now pending, or may hereafter be brought,
in any State court, in which there is a controversy between
a citizen of the State in which the suit is brought and a citizen
of another State, any defendant, being such citizen of another
State, may remove such suit into the district court of the
United States for the proper district, at any time before the
trial thereof, when it shall be made to appear to said district
court that from prejudice or local influence he will not be able
to obtain justice in such State court, or in any other State court
to which the said defendant may, under the laws of the State,
have the right, on account of such prejudice or local influence,

Section 297 of the Code, 36 Stat. 1168, specifically repealed
the Judiciary Act of 1875 and §§1, 2, 3, 4, 6 and 7 of the
Judiciary Act of 1887—that is, every part of the act of 1887
except the civil rights saving clause, section 5, supra p. 22.
Section 297 further provided, 36 Stat. 1169:

“ Also all other Acts and parts of Acts, in so far as
they are embraced within and superseded by this Act,
are hereby repealed; the remaining portions thereof
to be and remain in force with the same effect and to
the same extent as if this Act had not been passed.” 21

to remove said cause: Provided, That if it further appear that
said suit can be fully and justly determined as to the other
defendants in the State court, without being affected by such
prejudice or local influence, and that no party to the suit
will be prejudiced by a separation of the parties, said district
court may direct the suit to be remanded, so far as relates to
such other defendants, to the State court, to be proceeded with
therein. At any time before the trial of any suit which is now
pending in any district court, or may hereafter be entered
therein, and which has been removed to said court from a
State court on the affidavit of any party plaintiff that he had
reason to believe and did believe that, from prejudice or local
influence, he was unable to obtain justice in said State court,
the district court shall, on application of the other party,
examine into the truth of said affidavit and the grounds there
of, and, unless it shall appear to the satisfaction of said court
that said party will not be able to obtain justice in said State
court, it shall cause the same to be remanded thereto. Whenever
any cause shall be removed from any State court into any
district court of the United States, and the district court shall
decide that the cause was improperly removed, and order the
same to be remanded to the State court from whence it came,
such remand, shall be immediately carried into execution, and
no appeal or writ of error from the decision of the district court
so remanding such cause shall be allowed: Provided, That no
case arising under an Act entitled “An Act relating to the lia
bility of common carriers by railroad to their employees in
certain cases,” approved April twenty-second, nineteen hun
dred and eight, or any amendment thereto, and brought in
any State court of competent jurisdiction shall be removed
to any court of the United States.

21 Section 297 of the Judicial Code of 1911 was not affected by
the enactment of Title 28, U. S. C. in 1948. See 62 Stat. 869, 996.

Sections 28, 29 and 30 of the Judicial Code appear as 28
U. S. C. §§71, 72 and 73 (1940), respectively. By reason
of the abolition of the writ of error in all cases, civil and
criminal, in 1928,22 the sentence in §28 carrying forward
the 1887 preclusion of review by “ appeal or writ of error,”
supra pp. 23, 24, n. 20, omits reference to the writ. It reads:
“ . . . Whenever any cause shall be removed from any State
court into any district court of the United States, and the
district court shall decide that the cause was improperly
removed, and order the same to be remanded to the State
court from whence it came, such remand shall be immedi
ately carried into execution, and no appeal from the deci
sion of the district court so remanding such cause shall be
allowed.” 28 U. S. C. §71 (1940). No other significant
change appears.23

The 1948 Code (A) reenacted the civil rights (civil and
criminal) removal jurisdiction without substantive change,
28 U. S. C. §1443 (1958), supra pp. 16, 17; (B) significantly
broadened the scope of removal jurisdiction (civil and
criminal) in cases involving federal officers and persons
acting under them, 28 U. S. C. §1442 (1958); (C) substan
tially rewrote the jurisdictional bases of general civil re
moval jurisdiction (descendent from the Judiciary Acts of
1875,1887, the Judicial Code of 1911, §§28-30 and 28 U. S. C.
§§71-73 (1940)), 28 U. S. C. §1441 (1958) ;24 (D) con

22 Act of January 31, 1928, ch. 14, 45 Stat. 54. The enactment
is general and has no special pertinence to removal cases.

23 Apart from the omission of reference to the writ of error, the
1940 sections differ from those of the 1911 Judicial Code only in
that 28 U. S. C..§71 (1940) reflects the Act of January 20, 1914,
ch. 11, 38 Stat. 278, limiting removal in actions brought against
railroads and common carriers for damages for delay, loss of, or
injury to property received for transportation.

24 §1441. Actions removable generally.
(a) Except as otherwise expressly provided by Act of Con

gress, any civil action brought in a State court of which the

siderably altered the removal procedures for both civil and
criminal actions, 28 U. S. C. §§1446, 1447 (1958), see supra
pp. 16, 17, n. 13, and (E) inadvertently omitted the provi
sion of the earlier general civil removal statutes which pro
hibited appellate review of remand orders. The Act of
May 24, 1949, ch. 139, §84(b), 63 Stat. 89, 102, supplied
the latter omission by adding a new subsection (d) to 28
U. S. C. §1447. The 1949 act was an omnibus technical
amendment statute, intending no “ enactment of substantive
law, but merely correction of errors, misspellings, and in
accuracies in revision.” 25 The House Report says that the
purpose of the new subsection is “ to remove any doubt
that the former law as to the finality of an order of remand
to a State court is continued.” 26 28 U. S. C. §1447 (d) reads:

district courts of the United States have original jurisdiction,
may he removed by the defendant or the defendants, to the
district court of the United States for the district and division
embracing the place where such action is pending.

(b) Any civil action of which the district courts have origi
nal jurisdiction founded on a claim or right arising under the
Constitution, treaties or laws of the United States shall be
removable without regard to the citizenship or residence of
the parties. Any other such action shall be removable only if
none of the parties in interest properly joined and served as
defendants is a citizen of the State in which such action is
brought.

(c) Whenever a separate and independent claim or cause
of action, which would be removable if sued upon alone, is
joined with one or more otherwise non-removable claims or
causes of action, the entire case may be removed and the dis
trict court may determine all issues therein, or, in its discre
tion, may remand all matters not otherwise within its original
jurisdiction.

25 Mr. O’Connor in the Senate, 95 Cong. Rec. 5827 (81st Cong.,
1st Sess. 5/6 /49). Senator O’Connor reported the bill from the
Senate Committee on the Judiciary. 95 Cong. Ree. 5020 (81st
Cong., 1st Sess. 4/26/49).

26 H. R. Rep. No. 352, 81st Cong., 1st Sess. (1949), 2 U. S. Code
Cong. Serv., 81st Cong., 1st Sess., 1949, 1254, 1268 (1949).

“ (d) An order remanding a case to the State court
from which it was removed is not reviewable on ap
peal or otherwise.”

By Title IX, Section 901 of the Civil Bights Act of 1964,
passed in each house by an overwhelming vote, Congress
has amended 28 USC 1447 (d) to expressly provide for
review of remand orders in civil rights cases “ by appeal or
otherwise.” (Emphasis added.)

Ordinarily, unless a contrary legislative purpose affirma
tively appears, statutes not affecting substantive rights,
“but related only to the procedural machinery provided
to enforce such rights” are “ applied to pending as well as
to future suits.” Bowles v. Strickland, 151 F. 2d 419, at
420 (5th Cir. 1945). Hence, 28 USC 1447(d) is completely
extinguished as even an arguable bar to the exercise of
this Court’s authority to review the order of remand “by
appeal or otherwise.” 27

Specifications of Error

The District Court erred in :
(1) remanding the case to the state court on the au

thority cited;

27 For other examples of cases following this rule see:
Bruner v. United States, 343 U. S. 112 (1952) (statute with

drawing jurisdiction of District Court over Tucker Act claims
did not affect Government’s liability in pending legislation) ;

Ex parte Collett, 337 U. S. 55 (1949) (statute authorizing trans
fer of venue) ;

Orr v. United States, 174 F. 2d 577 (2d Cir.) 1949 (statute sav
ing from dismissal cases in which venue is improperly laid) ;

Schoen v. Mountain Producers Corp., 170 F. 2d 707 (3d Cir.
1948) (statute authorizing transfer of venue, applied to avoid
forum non conveniens dismissal);

Hoadley v. San Francisco, 94 U. S. 4 (1876), 1875 (statute mak
ing remand orders in civil removal cases reviewable by appeal or

(2) remanding the ease to the state court sua sponte;
(3) remanding the case to the state court without first

hearing evidence and argument as to the correctness of the
uncontradicted allegations of the verified removal petition.

Summary of Argument

By its motion to dismiss the appeal, the appellee attacks
the jurisdiction of this Court on the grounds (i) 28 U. S. C.,
Sec. 1447(d) (1958) bars all appellate review of the Dis
trict Court’s remand order,28 and (ii) appellants’ attempts
to secure review in the Court were untimely under Fed.
Buies Crim. Pr. (37) (a) (2), and 54(b)(1) (B. 26, 27).

Appellants take the position that: (A )(1) the remand
order is reviewable by a proceeding in the nature of man
damus under 28 U. S. C., Sec. 1651(1958); (2) on the
record before the Court the case may be properly enter
tained as on petition for writ of mandamus; (B) 28 U. S. C.,
Sec. 1447(d)(1958) does not apply to (1) criminal cases
or (2) cases sought to be removed under the civil rights
acts, 28 U. S. C., Sec. 1443(1958); (C) whether or not the
remand order is reviewable by proceedings in the nature
of mandamus under Sec. 1651, the validity of appellants’
custody following remand of their cases to the state court
is cognizable by petition for writs of habeas corpus to the
judges of this Court under 28 U. S. C., Sec. 2241(c)(3)

writ of error applied to authorize Supreme Court review of a
remand in a case pending in the state courts at the time of pas
sage of the act and subsequently removed and remanded).

28 The statute precluding review of an order of remand is ex
pressly limited in its operation to instances where the district
court determines prior to final judgment that the cause was “ im
properly removed” ; i.e., where the removal petition fails to aver
the requisite jurisdictional facts. Traveler’s Protective Ass’ll of
Am.erica v. Smith, et al., 71 F. 2d 511 at 512 (4th Cir. 1934) (ap
peal dismissed; leave to file petition for mandamus allowed). See
pp. 25-27, supra.

(1958), and in such proceeding, which this Court may enter
tain as timely and properly before it, the validity of the
order of remand may be tested; or (D), alternatively to
all of the foregoing, appellants’ verified petition for re
moval may properly be construed as a petition for writs
of habeas corpus under 28 U. S. C., Sec. 2241(c) (3) (1958),
the denial of which is appealable to this Court under 28
U. S. C., Sec. 2253(1958); or (E )(1) the ten day appeal
time allowable under Criminal Rule 37(a)(2) has no ap
plication to review of the remand orders by proceedings in
the nature of mandamus.

Appellants’ verified removal petition stated a removal
claim cognizable under both subsections (1) and (2) of
28 U. S. C. 1443(1958). Sufficient facts were alleged to
support removal upon the basis of the authority relied
upon by the District Court to remand. The removal peti
tion stated facts adequate to show that appellants are per
sons acting “under color of authority” within the meaning
of subsection (2), Section 1443, authorized to remove crim
inal prosecutions. The facts averred, if proved, authorize
removal under this subsection.

The substantially probable case doctrine adhered to by
the Court below is too restrictive a construction of sub
section (1) Section 1443, because (1) it is founded upon
unreasonable assumptions about state judges, and (2) if
those unreasonable assumptions are indulged, the Suprem
acy Clause renders them untenable. Thus, the authorities
relied upon to support remand are only plausible if no
more than a common sense view of their rationale is taken,
limiting each case, especially Kentucky v. Powers, 201
U. S. 1 (1906), to its own peculiar facts.

Failure to attach copies of the indictments does not jus
tify remand because (1) remedy is available by certiorari
or other appropriate order, and (2) absent abuse of dis

cretion, such matter is wholly committed to district judges’
discretion, and (3) such requirement would unduly frus
trate resort to federal courts to vindicate equal civil rights.

Appellants’ position on this appeal as stated supra,
page 3, makes it unnecessary for them to respond to
appellee’s point 5 (E. 24).

A R G U M E N T

I
(A ) Reserving questions presented by Section 1 4 4 7 (d ),

the remand order is reviewable in proceedings in
the nature of mandamus which are properly before
the court

(1) Under the all writs section of the Judicial Code,
28 U. S. C. Section 1651 (1958), this Court has power to
issue orders in the nature of mandamus29 in aid of its ap
pellate jurisdiction. Pursuant to 28 U. S. C. Section 1291
(1958) this Court has authority to review final decisions
entered in the Court below in removed criminal prosecu
tion. Hence, review “ agreeable to the usages and principles
of law” (section 1651) of interlocutory orders in the cases
is allowable, United States v. Smith, 331 U. S. 469 (1947);
LaBuy v. Howes Leather Co., 352 U. S. 249 (1957); Platt
v. Minnesota Mining & Mfg. Co., 84 S. Ct. 769 (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

29 Rule 81(b) Fed. R. Civ. Pro., 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 order. LaBuy v. Howes Leather Co.,
352 U. S. 249 (1957) (by implication).

diction of this Court under section 1291. McClellan v.
Carland, 217 U. S. 268 (1900).

“Applications for a mandamus to a subordinate court
are warranted by the principles and usages of law in cases
where the subordinate court, having jurisdiction of a case
refuses to hear and decide the controversy . . . ” Ex parte
Newman, 14 Wall. 152, 165 (1877) (dictum). See Insurance
Co. v. Comstock, 16 Wall. 258 (1872) (issuing advisory opin
ion to do service for mandamus). Grounding its rationale
upon Newman and Comstock, the United States Supreme
Court in Railroad Co. 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.30 That
ruling has never been questioned in subsequent cases. See
Hoadley v. San Francisco, 94 U. S. 4, 5 (1875); Babbitt v.
Clark, 103 U. S. 606 (1880); Turner v. Farmers’ Loan d
Trust Co., 106 U. S. 552, 555 (1882); Gay v. Ruff, 292 U. S.
25, 28 n. 3 (1934); Employers Reinsurance Corp. v. Bryant,
299 U. S. 374, 378 (1937); also Missouri Pacific Ry. Co. v.
Fitzgerald, 160 IT. S. 556, 580 (1896); United States v.
Rice, 327 U. S. 742, 749-750 (1946). It is accordingly clear
that, but for any question arising from 28 U. S. C. Section
1447 (d), “ the power of the court to issue the mandamus
would be undoubted.” In re Pennsylvania Co., 137 U. S.
451, 453 (1890).

(2) It is evident also that this Court may properly
treat the present case as though before it on application for

30 The Wiswall case was decided before the creation of the Courts
of Appeals in 1891, at a time when the Supreme Court of the United
States 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.

relief in the nature of mandamus. Fed. Rules Civ. Pro.
81 (b) provides that “Relief heretofore available by man
damus . . . may be obtained by appropriate action or by
appropriate motion under the practice prescribed in [the]
. . . rules.” Appellants’ motion for stay pending appeal
(App. p. 71), to which were attached copies of the veri
fied removal petition and the remand order (R. 2, 10),
adequately served to put before this Court a proceeding in
the nature of mandamus. It is unimportant that the motion
did not speak in terms of mandamus. See United States
v. Morgan, 346 U. S. 502 (1954); Heflin v. United States,
358 U. S. 415 (1959); United States v. Morgan, 358 U. S.
415 (1959); Mitchell v. United States, 368 U. S. 439 (1962);
Coppedge v. United States, 369 U. S. 438, 442 n. 5 (1962);
Fed. Rule Grim. Pro. 52(a).

(B ) §1 4 4 7 (d) does not bar review of
the remand order

(1) Section 1447(d) provides broadly: “An order re
manding a case to the State court from, which it was re
moved is not reviewable on appeal or otherwise.” On its
words alone the statute appears so sweeping as to bar re
view of any remand order issued by any federal court in
any case. But, as shown by the only pertinent legislative
document, the purpose of this undebated technical enact
ment of 1949 was to “ remove any doubt that the former
law as to the finality of an order of remand to a State
court is continued.” See p. 26 supra. Thus, notwithstand
ing the comprehensive statutory wording, it would be ab
surd, for example, to suppose that an enactment which the
Senate was told by the floor manager of the bill “ [i]n no
sense is . . . any enactment of substantive law,” 81 meant 31

31 Senator O’Connor at 95 Cong. Ree. 5827 (81st Cong., 1st Sess.
5 /6 /49), quoted in part supra p. 26 at n. 25.

to overrule the long-standing doctrine that orders of a Court
of Appeals directing remand of a removed case are re-
viewable by the Supreme Court on certiorari. E.g., Gay
v. Ruff, 292 U. S. 25 (1934); Aetna Casualty & Surety Co.
v. Flowers, 330 U. S. 464 (1947). The sweeping language
of the 1949 enactment plainly seems to have this unintended
overreach, for it omits the limitation of the original 1887
statute to “decision of the circuit court” (see p. 22 supra)
and the limitation of the 1911 Judicial Code to “decision
of the district court” (see pp. 23, 24, n. 20 supra), upon
which limitation Gay and Flowers rested. But the statute
cannot rationally be given the effect which its words appear
to command. Plainly §1447(d) looks broader than it is.

The statutory history set out at pp. 8-27 supra also dem
onstrates that when Congress barred review of a remanded
“ case” in §1447(d) it meant a civil case and did not mean
to preclude review of remand orders by mandamus in crim
inal cases. The criminal removal jurisdiction of the federal
courts was the creature of a series of relatively limited
and specific enactments throughout the nineteenth century
—principally the acts of 1815, 1833, and 1866, and related
enactments.32 These concerned federal officers, persons act
ing under them, and civil rights defendants; the statutes
invariably spoke of “ suit or prosecution,” or “ suit or prose
cution, civil or criminal.” See pp. 9-13. The general
civil removal jurisdiction was created, and its scope altered
from time to time, by an entirely different line of statutes,33
of which the Judiciary Acts of 1875 and 1887 are the most
important. See pp. 18-23 supra. The removal provisions
of these statutes are in terms limited to civil actions: “any
suit of a civil nature, at law or in equity.” See pp. 19, 20

82 Citations to the statutes are collected in H art & W echsler,
The F ederal Courts and the F ederal System 1147-1150 (1953).

33 See H art & W echsler, supra note 32, at 1019-1020.

supra. Section 5 of the 1875 act for the first time authorized
review of remand orders by appeal or writ of error: it pro
vided that “ in any suit commenced in a circuit court or
removed from a State court to a circuit court of the United
States,” a circuit court finding that “ such suit does not
really and substantially involve a dispute or controversy
properly within the jurisdiction of said circuit court,”
should “dismiss the suit or remand it to the court from
which it was removed,” “but the order of said circuit court
dismissing or remanding said cause to the State court shall
be reviewable by the Supreme Court on writ of error or
appeal, as the case may be.” See p. 19, n. 18 supra (em
phasis added). “ Cause” is used interchangeably with “ suit”
and refers to the only “ suits” with which the act deals:
civil suits. This is clear beyond dispute, for the same
provisions of §5 which authorize review of an “ order . . .
remanding” a removed suit also authorize review of an
“ order . . . dismissing” a removed or original suit, and it
has never been supposed that the act of 1875 gave the
Government a right of appeal in criminal cases. See United
States v. Sanges, 144 U. S. 310 (1892). Like the act of
1875, the act of 1887 dealt, in its removal provisions, only
with suits “ of a civil nature, at law or in equity.” See
p. 20 supra. It was in these provisions that the Congress,
reversing its decision of 1875, for the first time enacted the
preclusion of review which is the predecessor of the present
§1447(d). Section 1 of the act of 188734 amended §2 of the
1875 act substantially to circumscribe the civil removal
jurisdiction of the circuit courts and, in so doing, provided
that whenever a circuit court remanded a cause as improp
erly removed, “ such remand shall be immediately carried
into execution, and no appeal or writ of error from the

34 As amended to correct enrollment by the act of 1888. See
pp. 19-22 supra.

decision of the circuit court so remanding such cause shall
be allowed.” See pp. 21-22 supra.

Such a disallowance of “appeal or writ of error” in 1887
could not conceivably have been intended to apply to crimi
nal cases, because prior to 1889 there was in the federal
courts “no jurisdictional provision for appeal or writ of
error in criminal cases.” Carroll v. United States, 354 U. S.
394, 400 n. 9 (1957); Bator, Finality in Criminal Law and
Federal Habeas Corpus for State Prisoners, 76 H arv. L.
R ev. 441, 473 n. 75 (1963). The act of 1875 had given none,
and there was no other.35 Moreover, the exclusive preoccu
pation of the 1887 statute with matters of civil removal is
evident. The act was a compromise between the House and
Senate as to the means of relieving the lower federal courts
which were “ overloaded with business.” 36 The overload
had been a subject of Congressional agitation during a
number of years preceding 1887, and the agitation had con
cerned civil cases.37 All of the changes of law worked by
the jurisdictional provisions of the act of 1887 were changes

35 Of course in civil cases, which were clearly within the scope
of preclusion of review (being in 1887 reviewable either by appeal
or writ of error, and the class of case with which the 1887 statute
was concerned), this Court subsequently held that the effect of the
statute was to bar mandamus in those cases where it barred appeal
or writ of error. In re Pennsylvania Co., 137 U. S. 451 (1890) ; cf.
United States v. Bice, 327 IT. S. 742 (1946). This was concluded on
reasoning that, where Congress had shut one door tight, it did not
intend that another stand open. Neither the cases nor the reasoning
have pertinency to the question of the applicability of the review
bar to criminal removal proceedings unless it can be shown on
independent grounds that, with respect to such proceedings, Con
gress did intend to shut one door tight. Such an intent is the more
doubtful because the only door then open in criminal eases was
mandamus, and the statute does not speak of mandamus.

36 H. R. Rep. No. 1078, 49th Cong., 1st Sess. (1886), p. 1.
37 The story is told in F rankfurter & L andis, The B usiness of

the Supreme Court 56-102 (1928).

affecting civil cases.38 Contemporary comment on the act of
1887 is concerned exclusively with civil cases.39 In this con
text, the provision barring review of remanded “ cause[s]”
can only plausibly be read to refer to civil causes. Con
gress dealt with nothing else, considered nothing else, in
1887. The Judicial Code of 1911 merely carried forward the
1887 provision without change,40 and this was the “ former
law” 41 which Congress reinstated when it enacted §1447(d)
in 1949.

None of the authorities cited by the appellee in its mo
tion to dismiss (R. 28) holds that §1447 (d) applies to crim
inal cases, and appellants have been unable to find any case
so holding. Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934),
seems to be the only criminal case in which the issue
might have been raised and, although the court in Snypp
appears tentatively disposed to reject the specific con
tention that the 1887 provision precluding review of re
mand orders applies only to cases removed under the 1887
removal provisions, the court leaves the issue undecided
and affirms the remand order on the merits. Of course,
it is not appellants’ contention, as it was Snypp’s, that the
§1447 (d) bar is limited to cases sought to be removed
under so much of the removal statutes as presently continue

38 See pp. 18-23 supra.
39 See D esty , T he R emoval op Causes F rom State to F ederal

Courts 207 (3d ed. 1893); D illon , R emoval op Causes F rom
State Courts to F ederal Courts 81 (5th ed. 1889) ; Speer, R e
moval op Causes F rom the State to F ederal Courts 59 (1888).
These discussions concern the removal provisions of the 1887 act
and do not address themselves specifically to construction of the
passage barring review of remand orders. What is significant here
is that all the writers agree in assuming that the act of 1887 affects
only civil cases.

40 Except that “district court” was substituted for “circuit court” ,
see pp. 15, 23-24 supra.

41 See pp. 26, 33 supra.

the removal jurisdiction granted by the 1887 act. Appel
lants concede that other civil cases fall within the bar
because they fall within the range of concern of the 1887
Congress which undertook a general revision of the civil
removal jurisdiction, United States v. Rice, 327 U. S. 742
(1946); cf. Morey v. Lockhart, 123 U. S. 56 (1887), and
within the policy to which that Congress gave effect. “ Con
gress, by the adoption of these provisions, . . . established
the policy of not permitting interruption of the litigation
of the merits of a removed cause by prolonged litigation
of questions of jurisdiction of the district court to which
the cause is removed.” United States v. Rice, supra, at 751.
“ So far as the mere question of the forum was concerned,
Congress was manifestly of opinion that the determination
of the Circuit Court [now district court] that jurisdiction
could not be maintained should be final,” since, even in
the case of applications for removal on the ground that the
case involved questions of federal law, “ finality was . . .
expedient as questions of the latter character if decided
against the claimant would be open to revision [on direct
review by the Supreme Court of the state court’s judg
ment] . . . , irrespective of the ruling of the Circuit Court
in that regard in the matter of removal.” Missouri Pacific
Ry. Co. v. Fitzgerald, 160 U. S. 556, 583 (1896). “ It must
be remembered that when Federal questions arise in causes
pending in the state courts, those courts are perfectly com
petent to decide them, and it is their duty to do so.” Ibid.

But congressional adoption of such a policy in civil eases
hardly supports the inference that the Congress meant to
adopt it in criminal cases as well. Recognition of the
unique needs of the criminal defendant for adequate safe
guards in the proceedings by which his liberty or life is
put in jeopardy runs deep in our traditions. Under the
Constitution and laws, the relationship of the federal to
the state courts appropriately differs in civil and criminal

matters. Compare Durfee v. Duke, 375 U. S. 106 (1963),
with Fay v. Noia, 372 U. S. 391 (1963). The protection of
the federal rights and interests of the civil litigant may
perhaps be committed to the nnreviewable decision of a
single federal district judge on the theory that “ the mere
question of the forum” is not worth the inconvenience of
more extended litigation, in view of the competency of
state tribunals to decide federal questions. But, at least
since 1867, Congress has manifested a particular unwilling
ness to commit to the state courts the final disposition
of factual issues underlying those questions in criminal
cases. Act of February 5, 1867, ch. 28, §1, 14 Stat. 385,
now 28 U. S. C. §2241 (c) (3); Fay v. Noia, supra; Townsend
v. Sain, 372 U. S. 293 (1963). By the habeas corpus juris
diction, it has expressed “the manifest federal policy that
federal constitutional rights of personal liberty shall not be
denied without the fullest opportunity for plenary federal
judicial review.” Fay v. Noia) supra, at 424. And since
1885, when it restored the Supreme Court’s jurisdiction
over habeas appeals, Act of March 3, 1885, ch. 353, 23 Stat.
437, it has shown itself unwilling to leave the federal
judicial protection of state criminal defendants to a single
federal judge in a court of first instance. Against a back
ground of history and context which unambiguously demon
strates the exclusively civil direction of the 1887 removal
provisions, it is in the last degree implausible to attribute
to a portion of those provisions—now §1447(d)—a purpose
to strip of all federal appellate redress the state criminal
defendant who unsuccessfully asserts before trial a color
able claim for removal.

(2) If, however, criminal cases are reached at all by the
1887 statute, criminal cases sought to be removed under
the civil rights acts—as well as civil cases sought to be
removed under the same authority—are expressly excepted
from the statute’s operation. Section 5 of the act of 1887

provided: “That nothing in this act shall be held, deemed,
or construed to repeal or affect any jurisdiction or right
mentioned either in sections six hundred and forty-one
. . . or in seven hundred and twenty-two, or in title twenty-
four of the Revised Statutes . . . ” or in other enumerated
statutes principally affecting civil rights. See p. 22 supra.
Section 641, the civil rights act (civil and criminal) re
moval provision, was carried forward without substantive
change as §31 of the Judicial Code of 1.911, see pp. 14-15
supra, and in 1948 was reenacted with changes in phrase
ology as 28 U. S. C. §1443 (1958), see pp. 16-17 supra. Sec
tion 722 of the Revised Statutes was the present 42 U. S. C.
§1988 (1958), set out below.42 Title 24 comprised the sub
stantive civil rights act provisions, Rev. Stat. §§1977-1981,
now found in 42 U. S. C. §§1981, 1982, 1983, 1985 and 1986
(1958), together with certain enforcement provisions.
Thus, the provisions saved by §5 in 1887 remain extant.
And the saving clause itself was preserved by §297 of the

42 Rev. Stat. §722 derived from the same Act of April 9, 1866,
ch. 21, §3, 14 Stat. 27, reenacted by the Act of May 31, 1870, ch.
114 §18 16 Stat. 140, 144, which created the civil rights removal
jurisdiction, present 28 U. S. C. §1443 (1958), invoked by respon
dents in the present eases. See pp. 11-17 supra. Section 722 is :

“ Sec. 722. The jurisdiction in civil and criminal matters
conferred on the district and circuit courts by the provisions
of this title, and of Title ‘Civil R ights,’ and of Title ‘Crimes,’
for the protection of all persons in the United Statesin their
civil rights, and for their vindication, 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 intô effect; but
in all cases where they are not adapted to the object, or are
deficient in the provisions necessary to furnish suitable reme
dies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the
State wherein the court having jurisdiction of such civil or
criminal cause 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 the said courts in the trial and dis
position of the cause, and, if it is of a criminal nature, in the
infliction of punishment on the party found guilty.”

1911 Code, which expressly repealed every section of the
1887 act save §5, and farther provided that “ all other
. . . parts of Acts, in so far as they are embraced within
and superseded by this Act, are hereby repealed; the re
maining portions thereof to be and remain in force with
the same effect and to the same extent as if this Act had
not been passed.” P. 24, supra. It is difficult to imagine
what more affirmative indication Congress could have
given of its purpose to retain uninterrupted the protec
tions of the civil rights acts’ removal provisions in and
after 1887. Neither §5 of the 1887 act nor §297 of the Judi
cial Code have ever been expressly repealed (indeed, §297
continues §5 in force); and, in view of the legislative his
tory of 28 U. S. C. §1447(d) enacted in 1949 with a pur
pose to continue former law, see pp. 26, 32, supra, appel
lants hardly need the benefit of the usual presumption43 to
resist any contention of implied repeal.

Authorities relied upon for the proposition that the
saving clauses of 1887 and 1911 do not preserve a right to
review of remand orders in civil rights removal cases
do not survive close analysis. United States v. Rice, 327
U. S. 742 (1946), may be put aside, for the case involved
no issue under the saving clause and did not purport to
discuss its effect. The footnote in Gay v. Ruff, 292 U. S.
25, pp. 29-30, n. 5 (1934), is dictum, expresses only a tenta
tive judgment, and overlooks the force of §297 of the Ju
dicial Code of 1911. Snypp v. Ohio, 70 F. 2d 535 (6th Cir.
1934); is still more tentative and is not persuasive; the
court in fact exercises jurisdiction over the appeal and
affirms the remand order, apparently on the ground that the

43 E.g., United States v. Noce, 268 U. S. 613, 619 (1925) ; United
States v. Jackson, 302 U. S. 628, 631 (1938); United States v.
Borden Co., 308 U. S. 188, 195-206 (1939); United States Alkali
Export Assn. v. United States, 325 U. S. 196, 204-210 (1945).

substance of the appeal is more easily disposed of than the
jurisdictional question. There remains Cole v. Garland, 107
Fed. 759 (7th Cir. 1901), writ of error dism’d, 183 U. S. 693
(1901). The Supreme Court’s disposition in Cole is not
presently pertinent44 but the lower court’s opinion does
support the proposition for which it is cited. The ease is
somewhat of an instance of an easy case making bad law,
both because the removal in Cole was patently unsupport-
able as a civil rights matter and because Mr. Cole, a plain
tiff in the state court, could not in any event have invoked
the civil rights removal jurisdiction, which is limited to
defendants—a point which the Seventh Circuit made an
alternative ground of disposition. But the court’s reason
ing is, in any event, wrong on its face. Its argument is
that because §641 of the Revised Statutes does not contain
within its four corners any provision for review of remand
orders, any right to review of such orders depended in
1887 upon the appeal provisions of the act of 1875; so that
repeal in 1887 of the 1875 act abolished the right of appeal
without “ affecting” any right given by §641. This is un-
supportable on several grounds. First, it is clear that prior
to 1875 orders remanding removed cases to a state court
were reviewable on mandamus. See pp. 30-32 supra. This
was so by virtue of the appellate superintendence exer
cised by the Supreme Court over the inferior federal courts,
in the ordinary course of which a lower court’s wrongful
refusal to assume jurisdiction would be reviewed. The
only obstacle to this ordinary appellate review is the act
of 1887, and to the extent that it makes unreviewable a
usually reviewable decision defeating the right of removal
given by §641, it “ affects” that right. Second, the “ right”

44 The Court dismissed on authority of German National Bank v.
Speckert, 181 U. S. 405 (1901), that is, on the ground that the
Court of Appeals’ order was not final for purposes of review on
writ of error. See Gay v. Buff, 292 U. S. 25, 29 (1934).

given by §641 is not a “ right” to have an nnreviewable
wrong decision of a federal judge remanding a case to the
state courts, but a “ right” to have the case removed where
removal is proper under the statute. To the extent that
the 1887 enactment is put forward to substitute the former
“ right” for the latter, it “ affects” the §641 right. Third,
the act of 1887 saves not only §641, but also §722, a por
tion of the original civil rights removal statute of 1866.
Section 722 provides that the jurisdiction conferred upon
the inferior federal courts by, inter alia, §641 “ 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 they are not
adapted to the object, or are deficient in the provisions
necessary to furnish suitable remedies . . ., ” resort may be
had in the trial and disposition of cases to state law con
sistent with the federal Constitution and laws. The purpose
of this provision amply to implement the aims of the re
moval jurisdiction is obvious. And one of the “ laws” in
conformity with which the lower federal courts’ jurisdic
tion was to be exercised suitably “ to carry the [removal
jurisdiction] . . . into effect” was Rev. Stat. §716, present
28 U. S. C. §1651 (1958), the all writs provision, under
which the Supreme Court, and now intermediate Courts of
Appeals, in proper cases review and regulate the exercise
of jurisdiction by the lower courts. Thus, quite apart from
Cole’s additional erroneous assumption that the propriety
of the remand order might be tested on review of the state
court’s decision on the merits, 107 Fed. at 762,45 Cole is a
wholly unpersuasive authority which this Court may prop
erly reject.

45E.g., Metropolitan Casualty Ins. Co. v. Stevens, 312 U. S. 563
(1941) ; McLaughlin Bros. v. Hallowell, 228 U. S. 278 (1913).

(C) If review of the remand order is not available
by a proceeding ill the nature of mandamus,
the individual judges of this court have power
to issue writs of habeas corpus in this case

Under 28 U. S. C. §2241 (a), the judges of this Court
have authority to issue writs of habeas corpus, and in this
case they may appropriately treat appellants’ papers of
March 12, 1964 (App. p. 71), as applications to them in
dividually for the writ. Waugaman v. United States,
331 Fed. 189 (5th Cir. 1964); and see authorities cited
supra p. 32. The requirement of custody is satisfied
by the restraints incident to respondents’ bail status, cf.
Jones v. Cunningham, 371 U. S. 236 (1963), particularly in
view of appellants’ allegations of imminent danger that
their bonds would be raised and that they were unable to
make the raised bonds (App. p. 72). Because the legality
of their continued state detention depends upon the validity
of the order of the District Court, the case is an appropri
ate one for discretionary retention of jurisdiction under
28 U. S. C. §2241 (b) (1958).

Appellants have argued that the remand order of the
District Court is reviewable by a proceeding in the nature
of mandamus. If it is not, appellants have no other ade
quate remedy available, compare Stack v. Boyle, 342 U. S.
1, 7 (1951), and habeas corpus lies to challenge their deten
tion by the appellants “ in violation of the Constitution
[and] . . . laws . . . of the United States,” 28 U. S. C.
§2241(c) (3) (1958),—that is, of 28 U. S. C. §1443 (1958),
the civil rights removal statute, and the federal constitu
tional guarantees which it implements. Such a use of the
writ does not contravene the bar of 28 U. S. C. §1447(d)
(1958), because the judges on habeas do not “ revise the
[district] . . . court judgment; [they] can act only on the
body of the [habeas] petitioner.” Fay v. Noia, 372 U. S.
391, 431 (1963). And appellants’ detention for trial in a

state court where by their allegations they cannot enforce
their federal constitutional and statutory rights, in viola
tion of the removal statute designed by Congress to pro
tect them from such a trial, and upon a remand order issued
without hearing or argument, fails “ to conform with the
fundamental requirements of law.” Fay v. Noia, supra, at
402. Intolerable exercises of an unreviewable power by a
single federal judge spurred judicial expansion of the
scope of the writ of habeas corpus throughout the nine
teenth century. E.g., Ex parte Siebold, 100 U. S. 371 (1879);
In re Snow, 120 U. S. 274 (1887); Ex parte Bain, 121 U. S.
1 (1887); Nielsen, Petitioner, 131 U. S. 176 (1889). If
28 U. S. C. §1447(d) (1958) is construed to insulate similar
abuses against review today, “ the writ is the only effective
means of preserving [appellants’] . . . rights,” Waley v.
Johnston, 316 IT. S. 101, 105 (1942), and its issuance is
proper.

(D ) The Court of Appeals has jurisdiction in
this case as on appeal from the denial of a
petition for writ of habeas corpus

Another ground sustains the jurisdiction of this Court.
Viewing appellants’ verified removal petition with the lib
erality authorized by prior decisions of the Supreme Court,
supra p. 32, the petition may appropriately be treated as an
application to the District Court for a writ of habeas cor
pus. 28 U. S. C. §2241 (1958). So treated, its essential alle
gations are that petitioners are held on bail to answer
criminal trespass charges following their arrests for the
sole purpose of perpetuating local customs and usages of
racial discrimination in places of public accommodation;
that these charges grow out of appellants’ attempts to secure
service at segregated restaurants; and that by reason of
a policy of racial discrimination which the State of Georgia
supports by statute, custom, usage and practice, appellants

cannot enforce in the state courts their federal constitu
tional rights, including rights of free expression and rights
under the Due Process and Equal Protection Clauses of
the Constitution (R. p. 236). Such assertions state a case of
detention in violation of the federal Constitution, see cases
cited infra p. 65; Wright v. Georgia, 373 U. S. 284 (1963),
and would make a case for hearing but for the exhaustion
doctrine of Ex parte Royall, 117 U. S. 241 (1886), and its
progeny. E.g., New York v. Eno, 155 U. S. 89 (1894);
Baker v. Grice, 169 U. S. 284 (1898).

The exhaustion doctrine was a judicially developed canon
of discretionary self-restraint in the exercise of an ad
mitted jurisdiction. Ex parte Royall, supra, at 250-252.
Its enunciation in Royall was the product of milder times
following the Reconstruction Era at whose pitch the Con
gress acted by the Act of February 5, 1867, ch. 28, §1, 14
Stat. 385, now 28 U. S. C. §2241(c)(3) (1958), to “ enlarge
the privilege of the writ of hobeas [sic] corpus, and make
the jurisdiction of the courts and judges of the United
States coextensive with all the powers that can be con
ferred upon them” 46 47 responsive to demands “to enforce
the liberty of all persons.” 47 Fay v. Noia, supra at 416,
recognized that “ Congress seems to have had no thought
. . . that a state prisoner should abide state court deter
mination of his constitutional defense . . . before resorting
to federal habeas corpus. Rather, a remedy almost in the
nature of removal from the state to the federal courts of
state prisoners' constitutional contentions seems to have
been envisaged” (original emphasis). Such a sweeping
grant of power was essential to enforce “ the liberty of all
persons” during the period when the Thirteenth, Four

46 Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/1866) (Repre
sentative Lawrence). Representative Lawrence reported the House
Bill from the Committee on the Judiciary. Id. at 4150.

47 Id. at 4151.

teenth and Fifteenth Amendments were written into law
to overcome fierce Southern resistance to the emancipa
tion.48 Its exercise was inappropriate in normal times,
and the exhaustion doctrine responded to the sense of in
appropriateness, as well as to the justified fear, reflected
also in the doctrine of Stefanelli v. Minard, 342 U. S. 117,
123 (1951), that the assertion of anticipatory federal power
“would expose every State criminal prosecution to insup
portable disruption.” “ Such direct intrusion in state proc
esses does not comport with proper federal-state relation
ships.” Cleary v. Bolger, 371 U. S. 392, 401 (1963). The
practice accordingly grew of withholding federal relief in
the ordinary case until the ordinary state channels for
raising federal claims had been in due course of the state
trial exhausted.

Of course, the exhaustion doctrine was never a doctrine
entirely denying the legitimacy of federal intervention in
advance of a state criminal trial. Where the federal in
terest asserted was sufficiently weighty or the probable
efficacy of state remedies fully to protect that federal in
terest insufficiently sure, pretrial federal habeas corpus
was available.49 When Congress partially50 codified the ex
haustion doctrine in 1948, 28 U. S. C. §2254 (1958), it
recognized the validity of the exceptions to the ordinary
rule and carefully preserved substantial authority for
extraordinary exercises of federal judicial power where
needed. Under §2254, an application for a writ of habeas

48 See R andall, T he Civil W ar and R econstruction (1937);
M cK itrick , A ndrew J ohnson and R econstruction (1960).

49 E.g., Wildenhus’s Case, 120 U. S. 1 (1887) ; In re Loney, 134
U. S. 372 (1890); In re Neagle, 135 IT. S. 1 (1890) ; Ohio v. Thomas,
173 U. S. 276 (1899) (after justice’s trial).

50 28 U. S. C. §2254 (1958) applies only to persons “ in custody
pursuant to the judgment of a State court.”

corpus is not to be granted on behalf of a state prisoner
“unless it appears that the applicant has exhausted the
remedies available in the courts of the State, or that there
is either an absence of available State corrective process
or the existence of circumstances rendering such process
ineffective to protect the rights of the prisoner.” The
statute appears fairly to reflect the judicial development
of the doctrine in pretrial as well as postconviction cases.
And the Court’s likening of the 1867 habeas corpus juris
diction to the 1866 civil rights removal jurisdiction in
Fay v. Noia, supra, at 416, suggests that the same condi
tions in the state court which would authorize removal on
behalf of a criminal defendant who alleges that he “ cannot
enforce in the courts of [the] . . . State” his federally
protected rights, see II infra, would also authorize antic
ipatory federal habeas to try the validity of his federal
contentions, on the ground that there exist “ circumstances
rendering [state corrective] . . . process ineffective to pro
tect the rights of the prisoner.”

Under the allegations of appellants’ petition, the issue
is fairly raised whether by reason of Georgia’s maintenance
through statute, custom, usage and practice of a constitu
tionally impermissible state policy of racial discrimination,
trial in the state court on charges of criminal trespass
arising out of sit-in demonstrations will adequately protect
appellants’ rights of free expression and to due process
and equal protection of the laws. At a hearing it is open
to appellants to show that there exist in Georgia today
conditions more nearly akin to those of Southern resistance
at the time of enactment .of the Reconstruction-era habeas
corpus statute than have existed in this country since that
time. Respondents were denied their opportunity to make
a showing by the District Court’s summary disposition of
the petition. But the petition on its face is sufficient, and it

follows that, on timely51 appeal the Court has jurisdiction
to review the action of the District Court. 28 U. S. C. §2253
(1958).

(E ) Relief was not untimely sought in
the Court of Appeals

As the case is properly before this Court as on peti
tion for an order in the nature of mandamus, see pp. 30-32
supra, the 10-day appeal period of Fed. Eule Crim. Pro.
37(a)(2) has no application. The matter is cognizable on
original application to the Court of Appeals, whose juris
diction is not confined by the appeal provisions of the
Criminal Rules. Cf. Coppedge v. United States, 369 U. S.
438, 445n. 10 (1962). The timeliness of an application for
mandamus is governed by principles of laches, In re
Hohorst, 150 U. S. 653 (1893), within the broad discretion
which is commonplace to the extraordinary writ, La Buy
v. Howes Leather Co., 352 U. S. 249 (1957).

51 The appeal was timely within 30 days. Fed. Rules Civ. Pro.
73(a), 81(a) (2 ) ; 28 U. S. C. §2107 (1958). Concededly, appel
lants have not yet obtained a certificate of probable cause under
28 U. S. C. §2253 (1958), but the judges of the Court of Appeals,
may, in their discretion, issue a certificate in the proceeding before
them. See Peppers v. Balkcom, 331 F. 2d 150 (5th Cir. 1964).

Appellants’ Verified Removal Petition States Facts
Sufficient to Authorize Removal Under Section
1 4 4 3 (1 ) ant! ( 2 ) .

(A ) Sufficient facts were alleged to support removal
on the basis of the authority relied upon by
the District Court to remand

Based upon the authority relied upon by the District
Court to remand these criminal prosecutions to the state
court, the appellants’ verified removal petition sets out a
removal cause. The District Court stated that removal
under Section 1443(1) and (2) is proper only where the
removal petitioner’s claimed inability to enforce his fed
eral rights in the state court arises “ out of the destruction
of such rights by the Constitution or statutory laws of the
state wherein the action is pending” (R. 13).

Apparently, the District Court overlooked the allegation
that appellants “ cannot enforce in the Courts of the State
of Georgia rights under the Constitution and laws . . ., in
that, among other things, the State of Georgia by statute,
custom, usage, and practice supports and maintains a
policy of racial discrimination” (R. 6) (emphasis added).

(B ) The substantially probable case doctrine adhered
to by the court below is too restrictive a construction
of Section 1 4 4 3 (1 ) to justify remand

Section 3 of the Act of 1866, codified as Rev. Stat. Sec.
641, first reached the Supreme Court in 1879. Strauder v.
West Virginia, 100 U. S. 303 (1879) sustained its constitu
tionality and held that under it a sufficient case for re
moval was stated by the petition of a Negro charged with
murder in a West Virginia state court which alleged that
by reason of an 1873 West Virginia statute restricting

eligibility for jury service to white males, Negroes were
excluded from grand and petit juries in the state courts.
Virginia v. Rives, 100 U. S. 313 (1879), decided with
Strauder, is a key ease in the evaluation of present Sec.
1443(1). In Rives, a federal trial court had assumed re
moval 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 com
munity; that the grand jury which indicted them and the
jurors summoned to try them were all white; that the
prosecutor and judge had refused petitioners’ request 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 com
pel the lower federal court to remand the case, and the
Supreme Court issued the writ. Reading its opinion nar
rowly, it appears that the Court found petitioners’ allega
tions “ fall short of showing that any civil right was denied,
or that there had been any discrimination against the de
fendants 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 im
partially selected.” Id. at 322. What 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 of, e.g., Reece v. Geor
gia, 350 U. S. 85 (1955) was an allegation of purposeful
or intentional discrimination, and the Court said that this
might have been supplied by averment that a statute law
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.” 100 U. S, at 321. Thus, by rea
son of the requirement of factual showing under the re
moval statute that a defendant could not enforce his federal
rights in the state court, the Court said that the inability
to enforce federal rights of which the removal statute
spoke “ is primarily, if not exclusively, a denial of such
rights, or an inability to enforce them, resulting from the
Constitution or laws of the States rather than a denial first
made manifest at the trial of the case.” Id. at 319.

So construed, Rives holds no more than that the removal
petitioners’ allegations were insufficient to state a case of
unconstitutional jury discrimination under the then pre
vailing standards, and its comments on the existence or non
existence of discriminatory legislation are merely specu
lation on sorts of allegations which would be sufficient.
But the case may also be read as saying categorically that
unless a state Constitution or statute on its face denies a
defendant his federal constitutional rights, his case is not
removable under present Sec. 1443(1). Without any ade
quate consideration of the point, the Court in Neal v. Dela
ware, 103 U. S. 370 (1880), began to take this latter view
of Rives. Like Rives, the Neal case involved a Negro de
fendant tried for a capital offense in a state court where,
as alleged in his removal petition, Negroes were sys
tematically excluded from grand and petit juries. Neal al
leged that this exclusion was by reason of an 1831 Consti
tutional provision of the State of Delaware disqualifying
Negroes as jurors. The Delaware courts in which, pursuant
to the removal practice in force prior to 1948 (see paras,
pp. 52, 53 infra), Neal filed his removal petition, took the
view that the 1831 provision had been rendered void and
wholly nugatory by the supervention of the Fourteenth and

Fifteenth Amendments, so that, if there were any jury dis
crimination in Delaware—which, in any event, the Delaware
courts found that Neal had failed to prove—such discrim
ination was unauthorized by state constitution or statute.
On writ of error to the Delaware court the Supreme Court
of the United States disagreed that Neal had failed to show
systematic exclusion of Negroes from the grand jury, and
it reversed Neal’s conviction for error in overruling his
motion to quash the indictment and jury panels. But the
Supreme Court agreed with the court below that this dis
crimination was unauthorized by statute and, in extended
dictum, sustained denial of the removal petition. As the
Court read Strauder and Rives, those cases held:

“ [103 U. S. 386] . . . that the constitutional amendment
was broader than the provisions of sect. 641 of the
Devised Statutes; that since that section only author
ized a removal 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
sentence; that for [387] denials, arising from judicial
action, after the trials commenced, the remedy lay in
the revisory 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,
privileges, 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 judi
cial tribunals of the States, rights secured by any law
providing 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 mani
fest 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,
excluded colored citizens from juries because of their
race.”

“ The essential question, therefore,” said the Court, was
whether Negroes were excluded from Delaware juries “by
reason of the Constitution and laws of Delaware” (103
U. S. 387); and, finding that “ the alleged discrimination
in the State of Delaware, against citizens of the African
race, in the matter of service on juries, does not result
from her Constitution and laws” (id., at 389), the Court
found removal unauthorized. This ruling was repeated in a
series of substantially identical cases at the end of the
nineteenth century.62

Kentucky v. Powers, 201 U. S. 1 (1906), is the Court’s
most recent, and most restrictive construction of the re
moval section. 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 for removal. The
petition alleged (1) that the killing with which he was
charged had occurred during the course of a factional dis
pute, accompanied by widespread political excitement and
animosity, involving contested elections for all of the
major state offices; (2) that Powers had been the Re
publican candidate for Secretary of State; one Taylor
the Republican candidate for Governor; and Goebel, the man
with whose murder Powers was charged, the Democratic

. 62 In each ease Negro defendant was charged with murder in a
state court and based his removal petition upon allegations of
systematic exclusion of Negroes from the grand and petit juries.
Gibson v. Mississippi, 162 U. S. 565 (1896); Smith v. Mississippi,
162 U. S. 592 (1896) ; Murray v. Louisiana, 163 U. S. 101 (1896) ;
Bush v. Kentucky, 107 U. S. 110 (1882) ; Williams v. Mississippi,
170 U. S. 213 (1898).

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 procedure for selecting juries, and instead
systematically excluded Republicans and Independents
from the jury panels and selected Goebel Democrats for the
purpose of assuring Powers’ conviction; (5) that the judge
at each trial denied Powers’ requests that the jury be
selected equally from both political parties (approximat
ing the roughly equal popular vote each had polled at the
last election), or that the jury be selected without refer
ence to party, and overruled Powers’ objections to the
jurors on the ground of systematic exclusion of Republicans
and Independents; (6) that on each appeal, by force of
a Kentucky statute which made decisions upon challenges
to the panel and for cause, and upon motions to quash an
indictment, unreviewable, the Kentucky Court of Appeals
had held that it had no power to upset the trial court’s
rulings on the jurors—which decisions were the law of the
case and as binding on the Kentucky courts as statutes; (7)
that at each trial, Powers had pleaded in bar a pardon
issued to him by Governor Taylor, 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 first time in Kentucky juris
prudence that a Kentucky court refused to give effect to
an executive pardon); and that 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 foregoing reasons,

was unable to obtain a fair trial in the Kentucky courts.
The lower federal court assumed jurisdiction on removal,
concluding “ ‘that the prior action of the Scott Circuit
Court denying the defendant the equal protection of the
lawTs is a real hindrance and obstacle to his asserting his
right thereto in a future trial therein—just as real as an
unconstitutional 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 re
moval on account thereof.’ ” 201 U. S. at 36. On the State’s
appeal and petition for mandamus, the Supreme Court held
that this 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 error in denial of
his federal rights, review of those claims could be had by
writ of error issued from the Supreme Court to the state
trial court after conviction. And as the Court read its
earlier cases as holding that the statute

“ [201 U. S. 30] . . . did not give the right of removal,
unless [31] the constitution or the laws of the State
in which the criminal prosecution was pending denied
or prevented the enforcement in the judicial tribunals
of such State of the equal rights of the accused as se
cured by any law of the United States. Those cases, as
did the prior ones, expressly held that there was no
right of removal under 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 de
nied to him in the highest court of the State in which
the decision, in respect of that right, could be had.”

Before and particularly following Powers, the lower federal
courts have consistently held that unless a state constitu
tional or statutory provision unconstitutional on its face
is alleged to deprive a defendant of his federal rights,
removal under present Sec. 1443(1) is unauthorized.53

63 Band v. Arkansas, 191 F. Supp. 20 (W. D. Ark., 1961) (in
ability to obtain fair trial due to widely publicized inflammatory
evidence deliberately introduced at prior trial) ;

California v. Damson, 12 F. Supp. 813 (N. D. Cal. 1935) peti
tion for leave to appeal denied, 80 F. 2d 388 (jury prejudice aris
ing from presence on jury panel of jurors called at two prior
trials of defendant for murder) ;

Petition of Hagewood, 200 F. Supp. 140 (E. D. Mich. 1961)
(inter alia, defendant charged with prison break is deprived of
fair trial by reason of local prejudice in prison break cases);

Texas v. Doris, 165 F. Supp. 738 (S. D. Tex. 1958) (inability to
obtain fair trial where complainants control the county) ;

Wells, Ex parte, 3 Wood 128 (Bradley, C.J., 1878) (local preju
dice) ;

New Jersey v. Weinberger, 38 F. 2d 298 (D. N. J. 1930) (trial
judge prejudice) ;

Hull v. Jackson County Circuit Court, 138 F. 2d 820 (6th Cir.
1943) (removal of state habeas corpus alleging trial judge adverse
to petitioners’ claims) ;

Hill v. Pennsylva?iia,, 183 F. Supp. 126 (W. D. Pa. 1960) (re
fusal of state prosecutor to accord speedy tria l);

Van Newkirk v. District Attorney, 123 F. Supp. 61 (E. D. N. Y.,
1963) (commitment without notice after failure to try in seven
years) ;

California v. Chue Fan, 42 Fed. 865 (N. D. Cal. 1890) (discrimi
natory application of lottery statute against Chinese);

Birmingham v. Croskey, 217 F. Supp. 947 (N. D. Ala. 1963)
(“segregated system of justice” rendered impossible vindication of
federal rights in state courts) ;

Snypp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) (Blue Sky Law) ;
North Carolina v. Jackson, 135 F. Supp. 682 (M. D. N. C., 1955)

(statute requiring racial segregation on buses) ; and
Arkansas v. Howard, 218 F. Supp. 626 (E. D. Ark., 1963)

(prejudice against Negro defendant from school desegregation).

Distinguishing Powers is not easy because Powers is an
unconvincing decision which offers no reasoning with
which to work. The Powers opinion does not purport
to support its holding, but merely relies on previous
cases which in turn rely on Rives. Rives-—the only case
in which an attempt was made to explain what the Court
was doing—seems to rest on the reasoning that before
a prosecution may be removed a substantially probable
case must be made that the state courts will indeed not
adequately protect the defendant’s federal rights, and that
such a case is made if a state constitution or statute on its
face infringes those rights. But this is dubious reason
ing because (a) only unreasonable assumptions about state
judges—assumptions even in Rives, apparently contrary
to those which caused Congress to enact the removal pro
visions—could support the conclusion that those judges
will ordinarily be astute to protect federal constitutional
rights in the absence of an unconstitutional state statute;
and (b), if those unreasonable assumptions are indulged,
there is no sufficient reason for refusing also to assume that
the state judges will perform their obligation under the
Supremacy Clause to ignore an unconstitutional state stat
ute. And in Powers, where the lower federal court reason
ably found a clearly demonstrated probability that the
state courts would violate defendant’s federal rights, the
Supreme Court applied and extended the Rives doctrine in
disregard of its rationale.

About the only satisfactory explanation for the Powers
decision is that Powers had already had convictions three
times reversed by the Kentucky Court of Appeals, albeit
on non-federal grounds, and it was hard for the Supreme
Court to believe that Powers would not ultimately make
out all right in the state courts. If this common sense view

is taken of Powers, it is easy enough to explain away the
earlier cases, supra pp. 50-53 and note 52, on the theory
that in none of them did there appear an adequately sub
stantial probability that federal rights could not be en
forced in these state courts, because none of the grounds
alleged for removal sufficiently impugned the state judges,
in whose hands—notwithstanding attempts by jury com
missioners and other subordinate officials, defendants’ con
stitutional rights might have been safe. This interpreta
tion is supported by language in Neal, where the Court
said, 103 U. S. 392, that “had its [the State’s] judicial
tribunals, by their decisions, repudiated that amendment
[the Fourteenth] as a part of the supreme law of the land,
or declared the acts passed to enforce its provisions to be
inoperative and void, there would have been just ground
to hold that there was such a denial, upon its part, of equal
civil rights, or such an inability to enforce them in those
tribunals, as, under the Constitution and within the mean
ing of that section, would authorize a removal of the suit
or prosecution to the Circuit Court of the United States.”

(C) Appellants are persons “ acting under color of
authority” within the meaning of 1 4 4 3 (2 )
authorized to remove criminal prosecutions to
the United States District Court

Title 28 U. S. C. Sec. 1443(2) (1958) allows removal by
a defendant of any civil action or prosecution “ [1] For
any act under color of authority derived from any law
providing for equal rights, or [2] for refusing to do any
act on the ground that it would be inconsistent with such
law.” Neither half of this authorization has been defini
tively construed.55

55 In H od g son v. M illw ard, 12 Fed. Cas. 285, No. 6, 568 (Grier,
C.J., E. D. Pa. 1863), approved in B rau n v. S au erw ein , 10 Wall.

On its face, the authorization of removal by a defendant
prosecuted for “any act under color of authority derived
from any law providing for equal rights” might mean to
reach (A) only federal officers enforcing the Civil Eights
Acts, (B) federal officers enforcing the Civil Eights Acts
and also private persons authorized by the officers to assist
them in its enforcement, or (C) all persons exercising rights
granted by Civil Eights Acts.

Prior to the enactment of 28 U. S. C. Sec. 1442(a)(1)
(1958), there was no statutory provision generally author
izing removal of cases against federal officers. Prom early
in the nineteenth century, Congress had enacted specific,
narrow statutes allowing removal by designated kinds of
officers only. In 1815, in the face of New England’s re
sistance to the War of 1812, it provided in a customs act
for removal of suits or prosecutions “ against any collector,
naval officer, surveyor, inspector, or any other officer, civil
or military, or any other person aiding or assisting, agree
able to the provisions of this act, or under color thereof,
for any thing done by virtue of this act or under color
thereof . . . ” Act of February 4, 1815, ch, 31, Sec. 8, 3

218, 224 (1869), Justice Clifford held that a sufficient showing of
“color of authority” was made to justify removal under the 1863
predecessor of 28 U. S. C. Sec. 1443(2) (1958) where it appeared
that the defendants in a civil trespass action, the United States
marshal and his deputies, seized the plaintiff’s property under a
warrant issued by the federal district attorney, purportedly under
authority of a Presidential order, notwithstanding the order might
have been invalid. For the facts of the case, see Hodgson v. Mill-
ward, 3 Grant (Pa.) 412 (Strong, J. at nisi prius, 1863). This
establishes that “ color of authority” may be found where a federal
officer acts under an order which is illegal. See Potts v. Elliott,
61 F. Supp. 378, 379 (B. D. Ky. 1945) (court officer civil removal
case); Logemann v. Stock, 81 F. Supp. 337, 339 (D. Neb.
1949) (federal officer civil removal case). But it does not ad
vance inquiry as to whether “ color of authority” exists in any
other than the evident case of a regular federal officer acting under
express warrant of his office.

Stat. 195, 198; also Act of March 3, 1815, ch. 93, Sec. 6, 3
Stat. 231, 233. In 1833, responding to South Carolina’s re
sistance against the tariff, Congress enacted the Force Act
of March 2, 1833, ch. 57, 4 Stat. 632, whose second section
envisioned that private individuals, as well as federal of
ficers, might take or hold property pursuant to the revenue
laws; and whose Sec. 3, 4 Stat. 633 allowed removal of any
“ suit or prosecution . . . against any officer of the United
States, or other person, for or on account of any act done
under the revenue laws of the United States, or under color
thereof, 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. . . . ” The 1833
act was applied to other revenue laws by the Act of March
7, 1864, ch. 20, Sec. 9, 13 Stat. 14, 17, and the Act of June
30, 1864, ch. 173, Sec. 50, 13 Stat. 223, 241. By the Act of
July 13, 1866, ch. 184, 14 Stat. 98, Congress (a) generally
amended the revenue provisions of the Act of June 30,
1864; (b) in Sec. 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 SO, 1 8 6 4 , and the amendments 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 property or estate
by title derived from any such officer, concerning such prop
erty or estate, and affecting the validity of [the revenue
laws] . . . ” ; and (c) in Sec. 68, 14 Stat. 172, repealed the
removal provisions (Sec. 50) of the Act of June 30, 1864,
and provided for the remand to the state courts of all pend
ing removed cases which were not removable under the
new 1866 removal provisions.

In 1863, Congress enacted the first removal provision
applicable to other than revenue-enforcement cases. The

Act of March 3, 1863, ch. 81, 12 Stat. 755, was a Civil War
measure. It undertook principally to authorize Presiden
tial suspension of the writ of habeas corpus, and to im
munize from civil and criminal liability persons making
searches, seizures, arrests and imprisonments under Presi
dential orders during the existence of the rebellion. Sec
tion 5, 12 Stat. 756, allowed removal of all suits or prose
cutions “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 derived
from or exercised by or under the President of the United
States, or any act of Congress.” This was the predecessor
of the removal provisions of the Aet of April 9, 1866, ch.
31, Sec. 3, 14 Stat. 27, the first Civil Eights Act. The 1866
statute was reenacted by reference in the civil rights act
of 1870 (The Enforcement Act of May 31, 1870, supra,
p. 13), and, with stylistic changes, became Eev. Stat. Sec.
641; supra, p. 14. In 1911, in the course of abolishing
the old 'Circuit Courts, Congress technically repealed Rev.
Stat. Sec. 641 (Judicial Code of 1911, Sec. 297, 36 Stat.
1087, 1168) but carried its provisions forward without
change (except that removal jurisdiction was given the
district courts in lieu of the circuit courts) as Sec. 31 of
the Judicial Code (Judicial Code of 1911, Sec. 31, 36 Stat.
1087, 1096). Section 31 verbatim became 28 U. S. C. Sec.
74 (1940), and in 1948, with changes in phraseology,56 it
assumed its present form as 28 U. S. C. Sec. 1443 (1958),
supra, pp. 5, 15-17.

This history clearly indicates that, of the three suggested
alternative constructions of Sec. 1443(2), alternative (A),
reading “ color of authority” as restricted to federal officers,

56Revisor’s Note to 28 U. S. C. See. 1443 (1958), p. 16 supra.

is untenable. Tlxe 1866 Act in terms authorized removal by
“ any officer . . . or other person, for [enumerated wrongs]
. . . by virtue or under color of authority derived from this
act . . . ” and the language “ officer . . . or jjerson” was re
tained in the Revised Statutes and the Judicial Code of
1911. Both “ officer” and “person” were dropped in the 1948
revision, and, as the Revisor’s Note indicates, no substan
tive change in the section was intended. Clearly, Sec.
1443(2) reaches “persons” other than “ officers.”

The history also suggests grounds for rejecting alterna
tive (B), which would restrict that class of “persons” to
persons authorized by federal officers to assist in the en
forcement of the Civil Rights Acts. The strongest basis
for such a restriction of removal is that the 1866 act desig
nates as removable any suit or prosecution of officers or
persons “ for any arrest or imprisonment, trespasses, or
wrongs done or committed by virtue or under color of au
thority derived from this act or the act establishing a
Bureau for the relief of Freedmen and Refugees, and all
acts amendatory thereof . . . ” [emphasis added]. This
language, which on its face might seem directed rather to
actions arising from law enforcement activity than to ac
tions arising from exercise of the rights given by the law,
is patterned on the identical phraseology of the 1863
habeas corpus act, where the authorization of removal of
actions against officers or persons “ for any arrest or im
prisonment made, or other trespasses or wrongs done or
committed, or any act omitted to be done, at any time dur
ing the present rebellion, by virtue or under color of any
authority derived from or exercised by or under the
President of the United States, or any act of Congress”
clearly was addressed to actions arising from arrests, sei
zures and injuries inflicted by Union officers and persons

acting under them.57 However, conceding that the 1866 act
adopts the basic framework of the act of 1863, it is evi
dent that it adopts it for other and broader purposes.
Whereas the 1863 legislation was concerned principally
with protecting Union officers in their conduct of wartime
activities, and gave no rights or immunities to private in
dividuals, the later statutes to the “ color of authority” of
which the 1866 act refers—the 1866 Civil Eights Act itself,
the Freedmen’s Bureau Act of March 3, 1865, eh. 90, 13
Stat. 507, and the amendatory Freedmen’s Bureau Act of
July 16, 1866, 14 Stat. 173 (which was debated by the 1866
Congress as companion legislation to the 1866 Civil Eights
Act)—did grant to private individuals extensive rights
and immunities in the assertion of which it was foreseeable
that ‘‘'trespasses or wrongs” might be charged against
them. Section 1 of the 1866 Civil Eights Act, 14 Stat. 27,
and Sec. 14 of the amendatory Freedmen’s Bureau Act,
14 Stat. 176, for example, gave all citizens the right to

57 Section 4 of the 1863 act, 12 Stat. 756, provided that any order
of the President, or under his authority, made during the rebellion,
should be a defense to any suit or prosecution for any search,
seizure, arrest or imprisonment done, or acts omitted to be done,
under the order or act of Congress. Section 7, 12 Stat. 757, pro
vided a two-year statute of limitations for any suit or prosecution
for any arrest or imprisonment or other trespasses or wrongs done,
or act omitted, during the rebellion under presidential order or
act of Congress. Section 5, 12 Stat. 756 authorized removal of
suits or prosecutions against any officer or other person for any
arrest or imprisonment or other trespasses or wrongs done, or act
omitted, during the rebellion, by virtue or under color of any
authority derived from or exercised by or under presidential order
or act of Congress. These provisions were obviously an integrated
packet, and the Court in Bigelow v. Forrest, 9 Wall. 339 (1869)
(holding that actions of ejectment were not removable under the
1863 act, but that the act reached only actions for personal wrongs)
said that: “ [9 Wall. 348] The specification which all of these sec
tions contain, of arrests and imprisonments, or, as in the fourth
section, or searches [349], seizures, arrests, and imprisonments,
followed by more general words, justifies the inference that the
other trespasses and wrongs mentioned are trespasses and wrongs
ejusdem generis, or of the same nature as those which had been
previously specified.”

acquire and hold real and personal property, and to full
and equal benefit of all laws for the security of person
and property. In the exercise of self-help to defend their
property or resist arrest under discriminatory state legis
lation, citizens asserting their federally-granted rights
would doubtless commit acts for which they might be civilly
or criminally charged in the state courts. Arguably, Con
gress by Sec. 3 of the 1866 act meant to authorize removal
in such cases, and not merely cases in which the freedmen
acted under the authority of a federal officer. The argu
ment is strengthened by the absence of any words of limi
tation in the allowance of removal of actions against any
persons for “wrongs done or committed by virtue or under
color of authority derived from” the various acts granting
civil rights. When Congress wanted in removal statutes to
limit “persons” acting “ under color of” law or authority
to persons assisting or authorized by a federal officer, Con
gress several times stated this limitation expressly. It did
so in the revenue act of 1815 and again in the revenue act
of 1866, by which the same Congress which passed the
Civil Eights Act of 1866 limited the broader removal provi
sions of the 1833 and 1864 revenue acts. See pp. 9-11, 59-60,
supra. Comparison of the revenue-act removal provisions
with those of the Civil Rights Acts strongly supports the
conclusion that the latter are not limited to persons acting
under the directions of a federal enforcement officer.

Moreover, this interpretation is the most plausible under
the pattern of removal jurisdiction presently in force by
virtue of the 1948 Code. Section 1442, supra-, p. 25,, author
izes removal of suits or prosecutions against any federal
officer or person acting under him for any act under color
of office. If the separate removal provision of Sec. 1443(2),
“For any act under color of authority derived from any
law providing for equal rights” is not entirely redundant,
it must reach cases of action by private individuals not
“acting under” a federal officer in the assertion of their

civil rights. Thus, demonstrably, Sec. 1443(2) authorizes
removal by any person exercising rights granted by “any
law providing for equal rights.”

(D ) Appellants alleged sufficient facts, if proved,
sustaining removal under 1 4 4 3 (2 )

Claimed denials of the full enjoyment of equal civil
rights by state officers acting under color of law are
cognizable in the United States District Courts as matters
of first impression. Tick Wo v. Hopkins, 118 U. S. 356
(1886); Baker v. Carr, 369 U. S. 186 (1962); Monroe v.
Pape, 365 U. S. 167 (1961); Hornsby v. Allen, 326 F. 2d
605, 612 (5th Cir., 1964). See also Title II, Sections 201(d)
and 205(a), Civil Rights Act of 1964.

Federal courts have statutory authority to give elastic
interpretation to civil rights statutes so as to shape an ap
propriate remedy for the vindication of the equal rights
of citizenship. Brazier v. Cherry, 293 F. 2d 401 (5th Cir.
1961); 42 U. S. C. 1988 (1958), see p. 39 supra.

Appellants’ allegations (1) that their arrests were effected
for the sole purpose of furthering a racially discriminatory
practice, (2) that they could not enforce their equal civil
rights “ in the Courts of the State of Georgia . . . because
the State of Georgia by statute, custom, usage and prac
tice supports and maintains a policy of racial discrimina
tion” states a removal claim. Taylor v. Louisiana, 370 U. S.
156 (1962); see also Wright v. Georgia, 373 U. S. 284 (1963);
Lombard v. Louisiana, 373 U. S. 267 (1963); Peterson v.
Greenville, 373 U. S. 244 (1963) ; Griffin v. Maryland, No. 6,
October Term, 1963, U. S. Sup. Ct, decided, June 22, 1964.

Appellants’ verified removal petition alleged the requisite
Section 1443(2) jurisdictional facts which, if proved, would
entitle them to proceed to trial in the federal court, and the
district court has the power to receive evidence and try

the jurisdictional facts. Polito v. Molashy, 123 F. 2d 528
(1941), cert, denied 315 U. S. 804. See also Townsend v.
Sain, 372 TJ. S. at 313 (1963).

The district court’s denial of hearing or argument re
sults in an appellate record which is utterly inadequate to
support litigation of the important statutory questions
raised by appellants’ attempt to remove. The precise
scope of the issues raised by the jurisdictional averments
remained undefined and undetermined.

The remanded order by the district judge, without hear
ing, and without allowing arguments to explore the substan
tial issues raised and clarify them for the appellate record,
was therefore prejudicial error properly reversible by this
Court.

Ill

Failure to Bring Over Indictments Does Not Justify
Remand.

Appellants’ failure to attach the indictments returned
against them is not such an omission which renders the re
moval petition legally insufficient as urged by the appellees.
In the circumstances of the case, that is a matter wholly
committed “ to the informed discretion of the District
Court” . See Lefton, et al. v. City of Hattiesburg, Missis
sippi, No. 2 1 4 4 1 (5th Cir. decided June 4, 1964).

Manifestly, the district judge considered the removal
petition sufficient in all formal particulars, since nowhere
in his opinion does he suggest any modal or formal defect
(R 10-15).

Failure to bring over the indictments does not justify
remand, but remedy is by statutory writ of certiorari or
other appropriate order of the Court. Miller v. Soule, 221
F. 493 (3rd Cir., 1915); 28 U. S. C. 1447(b).

Title 28, U. S. C., 1447(a) only requires removal peti
tioners to file together with the petition all process, plead
ings and orders served upon them in the action. By con
stitutional provision in Georgia and in every state in the
old confederacy, one accused of crime may obtain a copy
of the accusation or indictment only upon demand. Article
I, paragraph 5, Constitution of the State of Georgia of
1945.58 (Emphasis added.) Obviously, imposition of such
a requirement would effectively bar or severely handicap
resort to the United States District Court to vindicate fed
eral equal civil rights. See Brotherhood of Railroad Train
men v. Virginia ex rel. Virginia State B ar,------U. S .------
12 L. ed. 2d 89 (1964).

Even a slight delay in procuring copies of indictments,
oft-times from not too friendly state court officials, could
“ so delay matters as to operate to deprive the [appellants]
of effective access to the federal courts,” in a class of liti
gation where the public interest is such that “neither in
direct nor direct” techniques are permitted. Ibid.

68 Nine states have constitutional or code provisions allowing the
accused a copy of the indictment in various cases.

1. Upon request, Florida, Georgia and West Virginia allow
a copy in all cases. (Fla. Const, art. 5, See. 9; Fla. Stat. Ann.
Secs. 32.18 and 906.18; Ga. Const, art. 1, sec. 1; Ga. Code
Ann. c. 27-7. Sec. 27-704 and c. 27-14, Sec. 27-1403; W. Va.
Const, art, 3, Secs. 4 and 14, W. Va. Code c. 6190.)

2. Upon request, Mississippi, South Carolina and Tennessee
allow a copy in capital cases. (Miss. Const, art. 3, Secs. 26
and 27; Miss. Code Ann. Sec. 2505; S. C. Const, art. 1, Sec.
17; Code of Laws of S. C. titles 17-401 and 17-408; Term.
Const, art. 1, Sec. 9; Tenn. Code Ann. Secs. 40-1703 and
40-2008.)

3. Arkansas, Louisiana and Texas provide a copy without
request in capital cases and require a request in all other
cases. (Ark. Const, art. 2, Secs. 8 and 10; Ark. Const, amend.
21; Ark. Stat. Ann. Secs. 43-1204 and 43-1205; La. Const, art.
1, Sec. 9; La. Stat. Ann. Sec. 15:332.1; Tex. Const, art. 1,
Sec. 10; Vernon’s Ann. C. C. P. arts. 413, 415, 487-490.)

To construe Title 28 U. S. C. 1446(a) as requiring a copy
of the indictment and/or information to be attached to each
removal petition would result in the subversion of the statu
tory scheme by emasculation of 28 U. S. C. 1447(b) (1958).
The Revisor’s notes make it unequivocally certain that the
latter provision was drafted and designed so as to “ pro
vide the utmost simplicity and flexibility of procedure in
bringing the State court record to the district court.” His
torical and Revisor Notes, 28 U. S. C. A., Sec. 1447, p. 440.
(Emphasis added.)

CONCLUSION

The Motion to Dismiss This Appeal Should Be Denied
and the Order of Remand Vacated With Directions.

Respectfully submitted,

D onald L. H ollowell
H oward Mooee, Jr.

859% Hunter Street, N.W.
Atlanta, Georgia 30314

J ack Greenberg
10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

Of Counsel
A nthony G. A msterdam
Melvyn Zare
A nn Cooper
J ohn Quarles, Jr.

Certificate of Service

This is to certify that on the day of July, 1964,
I served a copy of the foregoing Brief for Appellants
upon Robert Sparks, Assistant Solicitor General, Atlanta
Judicial Circuit, Room 301, Fulton County Courthouse
Building, Atlanta, Georgia, Attorney for Appellee, by mail
ing a copy thereof to him at the above address via U. S.
mail, postage prepaid.

Attorney for Appellants

A P P E N D I X

Motion for Stay Pending Appeal

1st the

UNITED STATES COURT OF APPEALS
F oe the F ifth Cieguit

No.................

T homas R achel, et at.,
Appellants,

— v .—

T he State of Geobgia,
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 Saver, 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
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.

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. If 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.

Donald L. H ollowell
H owaed Moose, Je.

Attorneys for Appellants

P. 0. Address:
859% Hunter St., N.W.
Atlanta 14, Gfa.

JA. 5-8372

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Rachel v. Georgia Brief for Appellants

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