Telegram: Jack Greenberg to John F. David Clerk

    I f  the

§> up rrm ?  (K n u rl n t the M n itriJ P l a t t s
October T erm, 1965 

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

F red W allace,

— v.—
Petitioner,

Commonwealth of V irginia,
Respondent.

L eah B. M orris, H ollis B. M orris,
H erman T rent and F rank B rown,

Petitioners,
— v.—

Commonwealth of V irginia,
Respondent.

PETITION FOR W RIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

MOTION TO ADVANCE ARGUMENT IF 
CERTIORARI GRANTED

Jack Greenberg 
James M. Nabrit, III 
Charles H. Jones, Jr.
Charles Stephen Ralston 
Melvyn Zarr

10 Columbus Circle 
New York, New York 10019

S. W. Tucker 
H enry L. Marsh, III 

214 East Clay Street 
Richmond, Virginia 23219

George E. A llen, Sr.
204 East Broad Street 
Richmond, Virginia

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104
Attorneys for Petitioners



TABLE OF CONTENTS

Citations to Opinions Below .............................................. 2

Jurisdiction .........................................................................  3

Questions Presented .......    3

Statutes Involved ...............................................................  4

Statement ....... ........................................  5

Reasons for Granting the W rit ..........................................  11

I. As Congress and This Court Have Recognized, 
the Questions Here Presented Are of Wide­
spread Importance, Involving the Relations of 
the State and Federal Courts in Matters of 
Civil Rights and Urgently Demanding the 
Court’s Consideration .......................................... 11

II. The Decision Below Puts the Fourth Circuit 
in Conflict With the Second, Fifth and Ninth 
Circuits ..................................   14

III. The Present Cases Afford Additional Perspec­
tives on Issues Presently Pending Before the 
Court ..............................................   18

IV. The Decision Below Is Wrong and Unduly Re­
stricts the Power of the Federal District Courts
to Protect Federal Civil R ights..........................  20

Conclusion ...................    21

PAGE

Motion to Advance Argument If Certiorari Granted .... 22



11

A ppendices :

Appendix I—
Orders of Remand and Opinions of the District 
Court ............... .............................................................  la

Appendix II—
Opinions of the Court of Appeals ..........................  20a

Appendix III—
Opinion of the Court of Appeals in Baines v. City 
of Danville .........................................................—.....  31a

Appendix IV—
State Statutes Involved .........    102a

T able op Cases

Anderson v. City of Chester, No. 443 ..........................14,18

Baines v. City of Danville (4th Cir. No. 9080) .......2,10,13,
14,15,18

Baines v. City of Danville (No. 959, 34 U. S. L. Week
3267) ..............................   2

Brown v. City of Meridian, No. 21730, decided January 
26, 1966 ............................................................................  14

Calhoun v. City of Meridian, 5th Cir., No. 21991 (slip
op. 1/26/66) ...................... ...................................... ....... 9,15

City of Greenwood v. Peacock, No. 471 .............. ....2,11, 22
Cooper v. Alabama, No. 22424, decided December 6,

1965 ..................................................................................  14

Dombrowski v. Pfister, 380 U. S. 479 (1965) .............   18

PAGE



m

Georgia v. Rachel, No. 147.............................. 2,11,14,18, 22
Gibson v. Florida Legislative Investigation Committee,

372 U. S. 539 (1963) .............................. ................... . 19
Griffin v. County School Board of Prince Edward 

County, 337 U. S. 218 (1964) ......................................  6

Kentucky v. Powers, 201 U. S. 1 (1906) ...................... 11, 20

McMeans v. Mayor’s Court of Fort Deposit, 247 F. 
Supp. 606 (M. D. Ala. 1965) ......................................  16

N. A. A. C. P. v. Button, 371 U. S. 415 (1963) ........... 19
New York v. Galamison, 342 F. 2d 255, 271 (2nd Cir. 

1965) cert. den. 380 U. S. 977 (1965) ..........................  15

Peacock v. City of Greenwood, No. 649 ............... ....... ....2,11
Peacock v. City of Greenwood, 347 F. 2d 679 (5th Cir. 

1965) cert, granted January 17, 1966 (Nos. 471,
649) ......................................  13,14,16,20

Rachel v. Georgia, 342 F. 2d 336 (5th Cir. 1965) cert.
granted, 382 U. S. 808 (1965) (No. 147) .......13,14,17, 20

Rogers v. City of Tuscaloosa, 353 F. 2d 78 (5th Cir. 
1965) ................................................................................  14

Steele v. Superior Court, 164 F. 2d 781 (9th Cir. 1948),
cert. den. 333 U. S. 861 (1948) .................................   16

Strauder v. West Virginia, 100 U. S. 303 (1880) ........... 19

PAGE

Virginia v. Rives, 100 U. S. 313 (1880) .....11, 20



IV

F ederal Statutes

28 U. S. C. §1254(1) (1964) .......................... ................... 3

28 U. S. C. §1443 ..................................... 11,12,13,15,16,18

28 U. S. C. §1443(1) ........................................... 3, 4, 8,10,11,
15,17,19, 20

28 U. S. C. §1443(2) ......................................... 3,8,10,15,19

28 U. S. C. §1447(d) (1958) .......................... ...................  12

42 U. S. C. §1981 (1964) ................................................ 15,19

Act of March 3, 1887, eh. 373, §2, 24 Stat. 553 ............... 12

Act of August 13, 1888, ch. 866, 25 Stat. 435 ...................  12

Act of May 24, 1949, ch. 139, §84 (b), 63 Stat. 102 ....... 12

Civil Rights Act of 1964, §901, 78 Stat. 266 .................. 12, 20

Civil Rights Act of 1964, Title II ..................................  18

Judicial Code of 1911, §28, 36 Stat. 1095 ......................  12

Judicial Code of 1911, §31, 36 Stat. 1087, 1096 ............... 15

Revised Statutes, §641 ....... ..............................................  15

State Statutes

Code of Va., Tit. 18.1 §§18.1-65 ...................................... 5

Code of Va. §18.1-254 .......................................................  5

Code of Va. §18.1-255 ........................................................ 5

Code of Va. §18.1-310 .......................................................  5

PAGE



V

Other A uthorities

Amsterdam, Criminal Prosecutions Affecting Federally 
Guaranteed Civil Rights: Federal Removal and
Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. R ev. 793, 843-863 (1965) ........... 11

110 Cong. Rec. 6551 (remarks of Senator Humphrey, 
3/30/64) ........................................................................... 12

110 Cong. Rec. 6564 (remarks of Senator Kuchel, 
3/30/64)   12

110 Cong. Rec. 6955 (4/6/64) ........................................  12

PAGE



In the

g>itpn*nu' (Court of tljr Httttrii ^tatrs
October T erm , 1965 

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

F red W allace,
Petitioner,

Commonwealth of V irginia,
Respondent.

L eah B. M orris, H ollis B. M orris,
H erman T rent and F rank B rown,

Petitioners,

Commonwealth of V irginia,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

MOTION TO ADVANCE ARGUMENT IF 
CERTIORARI GRANTED

Petitioners pray that a writ of certiorari issue to review 
judgments of the United States Court of Appeals for the 
Fourth Circuit entered in the above entitled cases Janu­
ary 21, 1966, Judges Sobeloff and Bell dissenting. The 
cases were not consolidated below for argument or decision, 
but were argued consecutively and decided simultaneously,



2

the majority in Morris relying upon the Wallace decision, 
and in Wallace relying upon the decision in Baines v. City 
of Danville (4th Cir. No. 9080) filed the same day. Appli­
cation was made to this Court January 28, 1966, to review 
the Baines decision by writ of certiorari (No. 959, 34 
U. S. L. Week 3267). Wallace and Morris present closely 
related questions, and their review here is sought by a 
single petition for certiorari as authorized by Supreme 
Court Rule 23(5).

Petitioners also move to advance the argument in this 
case, if certiorari is granted, to permit argument immedi­
ately following Georgia v. Rachel, No. 147, City of Green­
wood v. Peacock, No. 471 and Peacock v. City of Greenwood, 
No. 649.

Citations to Opinions Below

The orders of the United States District Court for the 
Eastern District of Virginia are unreported and are set 
forth in Appendix I hereto, pp. 16a, 19a, infra. The opin­
ions of the Court of Appeals, en banc, affirming the district 
court, together with the dissenting opinions of Judges 
Sobelotf and Bell, are as yet unreported and are set forth 
in Appendix II hereto, pp. 20a-30a, infra. The opinion of 
the Court of Appeals in Baines v. City of Danville (4th Cir. 
No. 9080), together with the dissenting opinion of Judges 
Sobelotf and Bell, is as yet unreported and is set forth 
in Appendix III hereto, at pp. 31a-101a, infra.



3

Jurisdiction

The judgments of the Court of Appeals were entered 
January 21, 1966, Appendix II, pp. 23a, 26a, infra. The 
jurisdiction of this Court is invoked under 28 U. S. C. §1254 
(1) (1964).

Questions Presented

1. Did the Court of Appeals err in holding that peti­
tioner Wallace’s petition for removal of criminal cases 
pending in the Circuit Court for Prince Edward County, 
Virginia failed to sustain federal removal jurisdiction 
under 28 U. S. C. §1443(1), (2) (1964), the civil rights 
removal statute, when:

(a) Wallace alleged that his arrest and the state prose­
cutions sought to be removed were effected and maintained, 
contrary to the Fourteenth Amendment, solely on account 
of his race and to prevent and interfere with his working- 
in the comity courthouse as a law clerk assisting lawyers 
in the representation of persons arrested for protests 
against racial discrimination;

(b) Wallace alleged that his equal civil rights could not 
be enforced in the Virginia state courts by reason of in­
tense prejudice and animosity of public officials and white 
citizens in Prince Edward County against persons advocat­
ing the termination of racial discrimination, and particu­
larly against the law firm with which Wallace was 
associated;

(c) Wallace alleged that his equal civil rights could not 
be enforced in the Virginia state courts by reason of a



4

2. Did the Court of Appeals err in holding that the re­
moval petition of petitioners Morris, et al. failed to sustain 
federal removal jurisdiction under 28 U. S. C. §1443(1) 
(1964) when the petition alleged that petitioners’ equal 
civil rights could not be enforced in the Virginia state 
courts by reason of the prevailing practice of systematic 
exclusion of Negroes from Amelia County, Virginia juries 
pursuant to a decision of the Supreme Court of Appeals 
of Virginia?

Statutes Involved

The cases involve 28 U. S. C. §1443 (1964), which reads 
as follows:

§1443. Civil rights cases

Any of the following civil actions or criminal prose­
cutions, commenced in a State court may be removed 
by the defendant to the district court of the United 
States for the district and division embracing the place 
wherein it is pending:

(1) Against any person who is denied or cannot 
enforce in the courts of such State a right under any 
law providing for the equal civil rights of citizens of 
the United States, or of all persons within the juris­
diction thereof;

(2) For any act under color of authority derived 
from any law providing for equal rights, or for re­

prevailing practice of systematic exclusion of Negroes from
Prince Edward County, Virginia juries pursuant to a
decision of the Supreme Court of Appeals of Virginia?



5

fusing to do any act on the ground that it would be 
inconsistent with such law.

The cases also involve Code of Va., Tit. 18.1 §§18.1-65 
(wounding with intent to maim), 18.1-254 (disorderly con­
duct in a public place), 18.1-255 (using abusive language) 
and 18.1-310 (obstructing justice). They are printed in 
Appendix IV, infra, pp. 102a, 103a.

Statement

A. Petitioner Fred Wallace

January 31, 1964, petitioner Wallace, a Negro, filed his 
petition in the United States District Court for the Eastern 
District of Virginia seeking to remove four criminal prose­
cutions arising out of his arrest on Sunday, July 28, 1963 
(R. 1-4). In his petition, he alleged that on that date he 
was acting as a law clerk for the Richmond, Virginia law 
firm of Tucker and Marsh, and that at the time of his 
arrest he was assisting his employer in the legal defense 
of several persons who had been arrested the same day 
for participating in protest demonstrations against racial 
discrimination (id., p. 2). While so engaged, and while in 
a Prince Edward County public building housing the county 
jail, sheriff’s office, courtrooms and offices of several county 
officials, “ [wjithout any just cause . . . P. F. Day [Gay] 
a Deputy Sheriff for said county . . . did interfere and 
prevent . . . [him] from proceeding with his aforesaid 
business” (ibid.). Wallace “ sought to continue his mis­
sion” and was “with varying and increasing degrees of 
force” arrested and detained (id., p. 3). His removal peti­
tion asserted that Prince Edward County had been and



6

was a locale with intense prejudice and animosity against 
any person who advocates the termination of racial dis­
crimination or segregation in phases of community life ; 
that the law firm of Tucker and Marsh “ represents the 
view which the officials and white citizens do not favor” 
(ibid.); that petitioner’s prosecution arose as an expression 
of such community disfavor (id., pp. 3-4); that a white 
citizen would not have been interfered with or otherwise 
prevented from proceeding with what was entirely lawful 
business (id., p. 4 ); and that no white person would be 
identified with the dissident views represented by the law 
firm employing petitioner at the time of his arrest (ibid.). 
From an attachment to the petition (id., pp. 16-25), incor­
porated in it by reference (id., p. 4), it appeared that 
Tucker and Marsh had represented the Negro plaintiffs in 
the Prince Edward County, Virginia school desegregation 
litigation (id., p. 18) ;x that local white animosity toward 
the firm and its position in that litigation was extreme (id., 
pp. 16-18); that following a minor scuffle incident to peti­
tioner Wallace’s arrest, Wallace was charged only with 
misdemeanors, but that as soon as the prosecutor learned 
that Wallace was employed as a law clerk by Tucker and 
Marsh, he caused the warrant to be amended to charge 
a felony punishable by twenty years’ imprisonment (and 
incidentally by ineligibility for admission to the bar) (id., 
p. 19); and that the examining magistrate had bound Wal­
lace over on the felony charge although there was no evi­
dence whatever presented at the preliminary hearing to 
support such a charge (id., pp. 19-24). From the same 
attachment it also appeared that TVallace’s association with 
Tucker and Marsh, and with racial protest demonstrations,

1 Griffin v. County School Board of Prince Edward County, 377 
U. S. 2i8 (1964).



7

had been publicized in Prince Edward County (id., p. 24); 
that local sentiment against Wallace was so strong that 
all Prince Edward County lawyers approached by Wallace’s 
counsel had refused to associate with his defense on the 
explicit ground that such an association would be harmful 
to their practice (ibid. ) ; and that a motion for change of 
venue from Prince Edward County had been made and 
denied by the state trial court (id., p. 4).

On February 7, 1964, petitioner Wallace amended the 
removal petition to add the allegation that he would be 
unable to enforce in the Virginia state courts rights under 
the Equal Protection Clause of the Fourteenth Amend­
ment, in that Negroes were and for many years had been 
systematically excluded from grand and petit juries in 
Prince Edward County, or so limited in inclusion that 
seldom, if ever, did the number of Negroes on petit jury 
panels exceed the number of peremptory challenges of the 
prosecution, with the result that the prosecutor could ex­
clude all Negroes from any jury before which petitioner 
would be tried in the Circuit Court (id., pp. 26, 27). It 
was alleged that this practice of racial exclusion from juries 
had been approved by the Supreme Court of Appeals of 
Virginia (id., p. 28).

Three misdemeanor charges—disorderly conduct (id., 
p. 7), using abusive language (id., pp. 7, 13), obstructing 
justice (id., pp. 10, 13)—and one felony charge—wounding 
with intent to maim (id., p. 6)—arising out of Wallace’s 
arrest were sought to be removed.

On February 20, 1964, the Commonwealth of Virginia 
answered and moved to remand (id., pp. 31, 32). In its 
remand motion the Commonwealth asserted, in essence, that 
the petition failed to state a sufficient claim for removal.



8

The United States District Court remanded without a 
hearing, holding Wallace’s petition insufficient under 28 
U. S. C. §1443(1) because it failed to allege that Virginia 
sanctioned discrimination in jury selection by constitution 
or statute, and insufficient under §1443(2) because it failed 
to allege that Wallace had any warrant or commission con­
ferred upon him by the federal government, which would 
afford him “ color of authority” of any law providing for 
equal rights (Tr. 3, 4-10, 11-18).

The United States Court of Appeals for the Fourth Cir­
cuit, en banc, affirmed the remand order, Judges Sobeloff 
and Bell dissenting.

B. Petitioners Leah Morris, Herman Trent,
Hollis B. Morris and Frank Brown

June 3, 1964, these petitioners filed substantially identical 
petitions for removal in the United States District Court for 
the Eastern District of Virginia seeking to remove prosecu­
tions for assault and battery (R. 1-5).

The facts alleged in their petitions for removal are 
as follows: On April 18, 1964, the petitioners, Negro resi­
dents of Powhatan County, Virginia, were riding in an 
automobile along a highway in the County of Amelia. They 
stopped their car because one Lewis Easter had stopped his 
automobile in such a way as to block the highway. Lewis 
Easter was then engaged in conversation with one Roy T. 
Jackson; both Easter and Jackson were white persons and 
residents of the County of Amelia (id., pp. 1-2).

One of the petitioners, assuming that Easter was having- 
difficulty with his car, got out of petitioners’ automobile 
and made an inquiry that was intended as an offer of as­
sistance. However, he received an uncivil and belligerent



9

reply. Then, without any provocation, Roy T. Jackson went 
over to petitioners’ car and struck the right forearm of 
petitioner Leah Morris with a hoe he was carrying, with 
such violence that her arm was broken. Petitioners did not 
commit any battery or any other act of violence {id., p. 2).

On the next day, April 19, petitioners were arrested and 
on April 28, 1964, they were convicted by the Amelia 
County Court on charges of assault and battery. They 
appealed from these convictions to the Circuit Court for the 
County of Amelia, in which they were entitled to a trial 
de novo. Before this trial took place, the petitions for re­
moval were filed in the Federal District Court.2

The petitions further alleged that the petitioners could 
not enforce in the courts of Virginia their rights under the 
Fourteenth Amendment against systematic discrimination 
against Negroes, or limitation of the number of Negroes 
upon the petit jury by which they would be tried {id., p. 3). 
In support of this allegation, it was alleged that for many 
years it had been the custom, usage, and practice of the 
jury officials in the County , of Amelia to deliberately limit 
the number of Negroes who might be summoned for jury 
duty so that “never has the concurrence of a Negro member 
of a grand jury been essential to an indictment.” Seldom, 
if evei*, have more than four Negroes been included in a 
panel of twenty from which each side strikes four to leave 
a-jury of twelve for the trial of a felony charge, and seldom, 
if ever, have more than three Negroes been included in a 
panel of eleven from which each side strikes three to leave 
a panel of five for the trial of a misdemeanor charge. This

2 No issue was raised below as to the timeliness of petitioners’ 
removal prior to their trial de novo in the Circuit Court. The 
removal was timely under Calhoun v. City of Meridian, 5th Cir., 
No. 21991 (slip op. 1/26/66).



10

It was further alleged that the Supreme Court of Appeals 
of Virginia had approved this practice of limiting the num­
ber of Negroes. Therefore, by the laws of the State of 
Virginia, as declared by its highest court, the petitioners 
could not enforce in the courts of the State their rights to be 
tried by a jury free of discrimination against persons of 
their race (id., pp. 3-4). It was also alleged that a fair 
trial could not be had because of the acquaintance of all 
prospective white jurors with the witnesses for the Com­
monwealth (id., p. 4).

On June 25, 1964, the Commonwealth of Virginia filed a 
motion to remand which asserted that the petition for re­
moval failed to state a sufficient claim for removal (id., p. 7). 
The United States District Court remanded to the state 
court without a hearing on the grounds set forth in its 
opinion in Wallace. The Court of Appeals for the Fourth 
Circuit, en banc, with Judges Sobeloff and Bell dissenting, 
affirmed the remand order on authority of its Wallace de­
cision, which in turn rested on its opinion in Baines v. City 
of Danville, No. 9080. The majority held that the Four­
teenth Amendment is not a “ law providing for . . . equal 
civil rights,” within the meaning of 28 U. S. C. §1443; that, 
absent a claim of facial invalidity of a state prosecution, 
not dependent upon disputable questions of fact, no basis 
for removal could be asserted under subsection 1443(1); 
and that no person save a federal officer or person assist­
ing him in the enforcement of federal civil rights law could 
claim “ color of authority” of such law within subsection 
1443(2).

practice of deliberate limitation would enable the prosecu­
tor to exclude all Negroes from the jury which would try
petitioners (id., p. 3).



11

REASONS FOR GRANTING THE WRIT

I.
As Congress and This Court Have Recognized, the 

Questions Here Presented Are of Widespread Impor­
tance, Involving the Relations of the State and Federal 
Courts in Matters of Civil Rights and Urgently Demand­
ing the Court’s Consideration.

These cases present additional aspects of the important 
questions of construction of the civil rights removal stat­
ute, 28 U. S. C. §1443 (1964), which is now before the 
Court in Georgia v. Rachel, No. 147, City of Greenwood v. 
Peacock, No. 471, and Peacock v. City of Greenwood, No. 
649. That statute was originally enacted by the Reconstruc­
tion Congress in 1866 to make the federal courts havens of 
the freedmen against anticipated persecution by state crimi­
nal and civil process. Following initial restrictive inter­
pretation by this Court,3 however, the statute became a dead 
letter. The Court last construed it in Kentucky v. Powers, 
201 U. S. 1 (1906). During the following sixty years, lower 
court adherence to and extension of Powers uniformly to 
deny civil rights removal, coupled with an apparent bar to

3 The portion of the civil rights removal statute which is now 
subsection 1443(1) (1964) was given scant scope by the opinion in 
Virginia v. Rives, 100 U. S. 313 (1880). Although that opinion was 
ambiguous and its successors somewhat less significant than has 
commonly been supposed, see Amsterdam, Criminal Prosecutions 
Affecting Federally Guaranteed Civil Rights: Federal Removal and 
Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. 
L. Rev. 793, 843-863 (1965), the view was widely held— and un- 
deviatingly expressed by the federal district courts, see id. at 850, 
n.222— that this Court had confined removal to cases in which a 
state statute or constitutional provision was federally unconstitu­
tional on its face.



12

appellate review of remand orders in civil rights cases/1 de­
prived the Court of opportunity to clarify or reconsider 
its early inhospitable holdings.

In 1964, facing the most significant civil rights issues of 
our time, Congress saw the crucial importance of the re­
moval cjuestion. It saw that “ the scope of this right of 
removal is in doubt, and the present unappealability of an 
order of remand prevents the Federal appellate courts 
from passing on the question.” 110 Cong. Eec. 6551 (re­
marks of Senator Humphrey, 3/30/64). In order to “pro­
vide an opportunity to reexamine, in the light of existing 
conditions, the scope of the right to remove in certain civil 
rights cases,” ibid.; see also id. at 6564 (remarks of Sena­
tor Kuehel, 3/30/64), Congress expressly authorized ap­
peal from remand orders in cases removed under 28 
U. S. C. §1443. Civil Rights Act of 1964, §901, 78 Stat. 266. 
This Court was thus called upon to reconsider the removal 
question. Senator Dodd accurately described the charge 
which the Court was given by Congress (110 Cong. Rec. 
6955 (4 /6 /64 )):

Due to the absolute finality given to . . . remand 
orders of district judges the removal statute has been 
rendered practically useless. This is in very large part 
the result of some old Supreme Court decisions which 
appear to hold that removal is proper only if the case 
involves a provision of a State constitution or a statute 
which on its face denies equal civil rights. *

A :. v f  March 3. b ? .. eh. 3*3. 52. 24 Star. 5-53. as amended 
•ccrr-:-" -nrollm-nt. A-:*t of August 13. 1888. eh. 563. 2-5 Star. 

435. carried forward by Judicial Code of 1911. 528. 36 Sta* 1095* 
and by Aet of May 24. 1949. eh. 139. §M (b). 63 Stat. 102 IB 
U. SL C. 51441 d 1958 .



13

Needless to say, by far the most serious denials of 
equal rights occur as a result not of statutes which deny 
equal rights upon their face, but as result of unconsti­
tutional and invidiously discriminatory administration 
of such statutes.

An examination of the legislative history of the act 
of 1866, which first authorized such removals [,] of the 
language of that act and its successors, and of the ap­
parent congressional purpose clearly suggests that 
these old interpretations are erroneous. Because dis­
trict judges feel bound to follow the early precedents, 
the effect of precluding an appeal from orders of re­
mand is to freeze into law these early nullifying inter­
pretations of the removal act.

Accordingly the removal statute, intended by Con­
gress to be, along with the civil and criminal civil rights 
provisions of that early act, one of the great bulwarks 
of equality, is of little or no value today.

Except for a very few early removals, I know of no 
case successfully removed under section 1443. If an 
appeal is allowed from orders to remand, the appellate 
courts will be able to consider what the removal statute 
means and what Congress intended when it enacted the 
statute.

Under the jurisdiction conferred by the 1964 act, the 
Court of Appeals for the Fifth Circuit, in the leading cases 
of Ra-cliel v. Georgia, 342 F. 2d 336 (5th Cir. 1965), cert, 
granted, 382 U. S. 808 (1965) (No. 147), and Peacock v. 
City of Greenwood, 347 F. 2d 679 (5th Cir. 1965), cert, 
granted January 17, 1966 (Nos. 471, 649), undertook the 
first fresh consideration of the civil rights removal statute 
during this century. This Court has agreed to review those 
cases. The present cases, together with Bain-es v. City of



14

Danville (4th Cir. No. 9080), represent the Fourth Circuit’s 
decisions of first impression on many of the same issues. 
Because the cases are quite similar to Peacock and come 
to the Court at about the same time, it seems appropriate 
that certiorari be granted so that these petitioners, by 
their own counsel, may be heard on the vital questions which 
the Fourth and Fifth Circuit cases share.5 Such a grant 
of certiorari is the more fitting because of the inconsistency 
of the views of the Fourth and Fifth Circuits (see Part II, 
infra), and because the present cases present factual cir­
cumstances and contentions sufficiently different from those 
aired in Rachel and Peacock to provide the Court a broader 
and more comprehensive context within which the removal 
question may be examined (see Part III, infra).

II.

The Decision Below Puts the Fourth Circuit in Con­
flict With the Second, Fifth and Ninth Circuits.

There is no need to labor the matter of inter-Circuit 
conflict between the Wallace case here and the Fifth Cir­
cuit’s Peacock decision. A mere reading of the allegations 
held sufficient in the Peacock opinion, and in the Fifth Cir­
cuit’s subsequent opinions in Rogers v. City of Tuscaloosa, 
353 F. 2d 78 (5th Cir. 1965); Cooper v. Alabama, No. 22424, 
decided December 6, 1965; Rrown v. City of Meridian, No. 
21730, decided January 26, 1966; and Calhoun v. City of

5 Some of petitioners’ counsel are also counsel for the removing 
parties in Georgia v. Rachel, No. 147. The issues in Rachel, how­
ever, are considerably narrower than those in Peacock, Baines, 
or the present cases. One of petitioners’ counsel is also counsel in 
Anderson v. City of Chester, No. 443, a case quite similar to Peacock 
and Baines, in which a petition for certiorari is pending.



15

Meridian, No. 21991, decided January 26, 1966, makes it 
immediately apparent that had Wallace’s petition for re­
moval been filed in a district court in the Fifth Circuit, it 
would have been held to state adequate grounds for removal 
under 28 U. S. C. §1443.

One component of this conflict between the Fourth and 
Fifth Circuits involves construction of the phrase “ any law 
providing . . . for equal civil rights . . .  ” , an issue central 
to the construction of 28 U. S. C. §1443.6 As both the ma­
jority and dissenting opinions below recognize,7 the ma­
jority’s decision that the equal protection clause of the 
Fourteenth Amendment is not a “ law providing for . . . 
equal civil rights” is at odds not only with decisions of 
the Fifth Circuit, but with decisions of the Second and 
Ninth Circuits as well. New York v. Galamison, 342 F. 2d 
255, 271 (2nd Cir. 1965), cert, den. 380 U. S. 977 (1965) ;8

6 This phrase in 28 U. S. C. §1443(1) clearly means the same 
thing as the phrase “any law providing for equal rights” in 28 
U. S. C. §1443(2). In the Revised Statutes, §641, the removal 
provision extended to any person who could not enforce in the 
state courts “ any right secured to him by any law providing for 
the equal civil rights of citizens of the United States, or o f all 
persons within the jurisdiction of the United States,” and to officers 
or persons charged with wrongs done under color of authority 
“ derived from any law providing for equal rights as aforesaid.” 
These two removal authorizations (now respectively subsections 
(1) and (2) of §1443) appeared in the 1911 Judicial Code, §31, 
36 Stat. 1087, 1096, exactly as they had appeared in the Revised 
Statutes, with the “ color of authority” passage referring explicitly 
back to the “as aforesaid” laws described in the “ cannot enforce” 
passage. Omission of “as aforesaid” in the 1948 revision effected 
no substantive change, for as indicated by the Revisor’s Note, the 
1948 revision intended only “ Changes . . .  in phraseology.”

7Baines, majority opinion, note 30 and accompanying text; 
Baines, dissenting opinion, note 13 and accompanying text.

8 In Galamison a divided panel of the Second Circuit held that, 
although the equal protection clause and 42 U. S. C. §1981 are laws



16

Steele v. Superior Court, 164 F. 2d 781 (9th Cir. 1948), 
cert. den. 333 U. iS. 861 (1948).

Moreover, the majority opinion below conflicts with deci­
sions of the Fifth Circuit on the question whether an evi­
dentiary hearing should be permitted a removal petitioner 
in order that he may prove jurisdictional facts under §1443. 
The Fourth Circuit here flatly holds removal unauthorized 
in any case where a petitioner’s claim depends upon con­
testable issues of fact:

If removability does not readily appear without a 
factual inquiry tantamount to a trial on the merits, 
removal should not be allowed. (Appendix III, p. 48a 
infra.)

The Fifth Circuit, on the other hand, made clear in Peacock 
that just such a “ factual inquiry” was required under §1443:

Of course, such allegations must be proved if they 
are challenged. Consequently, removal based on the 
misapplication of a statute may fail for want of proof. 
However, we deal here only with what allegations are 
sufficient to prevent remand without a hearing . . . 
It follows that the district court erred in remanding 
these cases to the state court without a hearing, and 
we reverse and remand for a hearing on the truth of 
appellants’ allegations (347 F. 2d at 684).9

providing for equal rights, the removal petitioners therein had not 
acted “ under color of authority derived from” these laws within 
the meaning of §1443(2). Removability under §1443(1) was not 
there considered.

9 Since Peacock, the district courts in the Fifth Circuit have been 
routinely holding such evidentiary hearings. See, e.g., McMeans 
v. Mayor’s Court of Fort Deposit, 247 F. Supp. 606 (M. D. Ala. 
1965).



17

Finally, there is a serious doctrinal conflict between the 
Fourth and Fifth Circuits. The majority opinion in Baines 
asserts that even were the equal protection clause a “ law 
providing for . . . equal civil rights” , federal civil rights 
removal jurisdiction would not be available in the service 
of a factually contestable equal protection claim, because 
that claim “may be asserted in the state court and, if un­
successful in the trial court, it may be considered by the 
Virginia Supreme Court of Appeals and, on certiorari, by 
the United States Supreme Court” Appendix III, p. 47a, 
infra. This approach was thoroughly repudiated by Chief 
Judge Tuttle in Rachel v. Georgia, 342 F. 2d 336, 342 (5tli 
Cir. 1965):

Congress, while carving out rights and immunities 
in the area of civil rights, has provided a jurisdictional 
basis for efficiently and appropriately protecting those 
rights and immunities in a federal forum. The provi­
sion of this protective forum is not limited by the 
States’ obligation, under the Supremacy Clause, to pro­
tect federally guaranteed civil rights as zealously as 
would a federal court. That there is such an obligation 
on State tribunals is true, and vital, but it is irrelevant 
here. Theoretically, there is no need for any federal 
jurisdiction at all— except that of the Supreme Court 
—because State courts are required to protect fed­
erally created rights. Nevertheless, the power of Con­
gress to provide a federal forum also to protect such 
rights is undoubted. Such power was exercised in en­
acting §1443(1).



18

III.

The Present Cases Afford Additional Perspectives on 
Issues Presently Pending Before the Court.

During the past few years—a period of intense civil 
rights activity and of equally intense state repression of 
civil rights activity—the confrontation of those claiming 
national civil rights with the repressive agencies of state 
criminal process has spawned widespread and varied at­
tempts to invoke the civil rights removal jurisdiction. The 
volume of litigation under 28 U. S. C. ^1443, and the 
variousness of the situations in which it has been invoked, 
are demonstrated by the many cases collected in Petition 
for Certiorari, Anderson v. City of Chester, No. 443, at 
pp. 12-14. One common situation—that of trespass prosecu­
tions arising out of sit-ins in places of public accommoda­
tion covered by Title II of the Civil Rights Act of 1964— 
is presented in Georgia v. Rachel, supra. Another—that of 
prosecutions arising out of demonstrations in the public 
thoroughfares—is presented in the Peacock cases, supra, 
and in Baines v. City of Danville, supra. The present cases 
pose two additional and different situations. Wallace in­
volves the harassment prosecution of an aide to a civil rights 
lawyer, designed by his intimidation to curb his own effec­
tiveness in representing demonstrators and through him to 
repress the civil rights movement which he represents. Cf. 
Dombrowski v. Pfister, 380 U. S. 479 (1965). Morris in­
volves a criminal proceeding arising out of an incident of 
interracial assault, in which Negroes prosecuted in a South­
ern state court are confronted with the prospect of Jim 
Crow justice administered by all-white juries which today



19

—as since the times preceding Strauder v. West Virginia, 
100 U. S. 303 (1880)—invariably fill the Southern jury box, 
the Fourteenth Amendment to the contrary notwithstand­
ing.

In Wallace, removal is sought under both §1443(1) and 
§1443(2). The rights which Wallace claims he is denied and 
cannot enforce in the courts of Prince Edward County, Vir­
ginia, within the meaning of §1443(1), are rights against 
racially discriminatory state prosecution under the Equal 
Protection Clause of the Fourteenth Amendment and 42 
U. S. C. §1981 (1964), and rights as a lawyer lawfully to ad­
vocate the cause of civil rights demonstrators, affirmed in 
N.A.A.C.P. v. Button, 371 U. S. 415 (1963). Because his 
prosecution has the effect of repressing the demonstrators 
whom he is representing, their rights too are denied and 
made unenforcible by the state-court proceeding—itself 
tainted by hostility—which he seeks to remove. Cf. Gibson 
v. Florida Legislative Investigation Committee, 372 U. S. 
539 (1963). His asserted rights—particularly in their de­
rivative or representational aspect—differ from those of 
the other removal petitioners in cases now pending before 
this Court, and so pose somewhat different questions re­
specting the scope of §1443(1). Similarly, his claim that his 
conduct as a lawyer in enforcing the civil rights of demon­
strators is conduct “ under color of authority” of federal 
civil rights law, presents a significant variant of the issue 
raised under §1443(2) by the sit-ins or the demonstrators 
themselves involved in the other pending cases.

Moreover, both Wallace and Morris present the ques­
tion, explicitly ruled upon by the court below, whether sys­
tematic exclusion of Negroes from grand and petit juries 
under the sanction of a practice approved by the highest



20

court of Virginia, provides an adequate basis for removal 
under §1443(1). The question—amplified in Wallace’s case 
by allegations of local jury hostility by reason of Wallace’s 
race and association with racial desegregationists—re­
quires reexamination by this Court of the decisions in 
Virginia v. Rives, 100 U. S. 313 (1880), supra note 3, and 
subsequent cases abutting at Kentucky v. Powers, 201 U. S. 
1 (1906), p. 11 supra. Such a reexamination was the precise 
aim of §901 of the Civil Rights Act of 1964. See pp. 12-13 
supra. In the present cases, the Fourth Circuit has affirmed 
the continuing vitality of those precedents—a question not 
addressed by the Fifth Circuit in Rachel or Peacock—and 
this issue justifies the Court’s consideration both for its 
own sake and for the light which it necessarily throws 
upon the general purpose, scope and operation of the civil 
rights removal statute.

IV.

The Decision Below Is Wrong and Unduly Restricts 
the Power of the Federal District Courts to Protect Fed­
eral Civil Rights.

The majority below concedes that it is “ partially true” 
that its construction of §1443 “ leaves little room for ef­
fective removal. . . ” See Appendix III, p. 50a infra. That is 
egregious understatement. If allowed to stand, its construc­
tion entails the plain consequence that “ the removal statute, 
intended by Congress to be . . . one of the great bulwarks of 
equality, is of little or no value today.” See p. 13 supra. 
Certainly, this Court should not permit such a consequence 
to go unreviewed.



21

CONCLUSION

The writ of certiorari should be granted to review 
and reverse the judgments of the Court of Appeals.

Respectfully submitted.

Jack Greenberg

James M. N abrit, III
Charles H. J ones, Jr.
Charles Stephen Ralston

M elvyn Zarr

10 Columbus Circle 
New York, New York 10019

S. W . T ucker

H enry L. M arsh, III
214 East Clay Street 
Richmond, Virginia 23219

George E. A llen , Sr.
204 East Broad Street 
Richmond, Virginia

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners



22

Motion to Advance Argument If Certiorari Granted

Pursuant to Rule 43(4) of the Rules of this Court, peti­
tioners respectfully move the Court to advance argument 
in this case if certiorari is granted, so that this case may be 
argued immediately following Georgia v. Rachel, No. 147 
and City of Greenwood v. Peacock (and reverse title) (Nos. 
471 and 649).

In support of this motion, petitioners assign the Reasons 
for Granting the Writ presented above.

Respectfully submitted,

Jack Greenberg

James M. N abrit, III
Charles IJ. J okes, Jr.
C harles Stephen R alston

M elvyn Zarr

10 Columbus Circle 
New York, New York 10019

iS. W. T ucker
H enry L. M arsh, III

214 East Clay Street 
Richmond, Virginia 23219

George E. A llen , Sr.
204 East Broad Street 
Richmond, Virginia

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pa. 19104

Attorneys for Petitioners



A P P E N D I C E S



la

APPENDIX I

Orders of Remand and Opinions 
of the District Court

I n  the

UNITED STATES DISTRICT COURT 

F oe the E astern D istrict of V irginia 

R ichmond D ivision 

No. 7429 (Criminal)

... .i ' ■ ■■

Commonwealth of V irginia,
Plaintiff,

— vs.—

F red W allace,
Defendant.

Opinion, Filed April 22 , 1964

T he Court : Gentlemen, before I begin my brief remarks 
in this case, I wish to express on behalf of the Bench and, if 
I may presume to do so, the Bar, our appreciation to Mr. 
Allen who has appeared to represent defendant in this 
case. It is a difficult matter to represent defendants in 
causes which are not always considered to be popular, and 
Mr. Allen deserves all of our thanks.

In saying that, I do not mean to in any way overlook 
the services that have been rendered by his co-counsel, Mr. 
Tucker and Mr. Marsh, who also have the responsibility of



2a

defending the case, and I realize the burden that is placed 
upon Mr. Watkins and Mr. Blandford.

Turning now to the motion before the Court to remand 
the case of Commonwealth v. Fred Wallace to the Circuit 
Court of Prince Edward County, the Court points out that 
its jurisdiction to entertain the case is entirely dependent 
upon the statutes passed by the Congress conferring juris­
diction upon the United States Court.

In Tennessee v. Davis, 100 U.S. 257, 271 (1879), the Court 
said:

“ It ought, therefore, to be considered as settled that 
the constitutional powers of Congress to authorize 
the removal of criminal cases for alleged offences 
against State laws from State courts to the circuit 
courts of the United States, when there arises a fed­
eral question in them, is as ample as its power to au­
thorize the removal of a civil case.”

Many of the cases to which reference has been made set 
out with great force the indispensability of such a power 
to the enforcement of federal law. We are not concerned 
with the constitutional power of Congress with respect to 
the motion which we are considering. The statement in 
Tennessee v. Davis is not to be doubted, but it is not the 
guide which we must follow today. The question is not 
ascertaining the power of the Congress, but what the 
Congress has done in exercising that power. It may or may 
not have gone to the limit of its powers. That is not the 
issue before the Court today.

Appendix I—Opinion, Filed April 22, 1964



3a

The question before the Court today is one of statutory 
interpretation of 28 United States Code, Section 1443, 
which provides:

“Any of the following civil actions or criminal prose­
cutions, commenced in a State court may be removed 
by the defendant to the district court of the United 
States for the district and division embracing the place 
wherein it is pending:

“ (1) against any person who is denied or cannot 
enforce in the courts of such State a right under any 
law providing for the equal civil rights of citizens 
of the United States, or of all persons within the 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 no the ground that it would be in­
consistent with such law.”

The procedure which we are following today has been 
sanctioned by two cases decided by the United States Su­
preme Court. The first of those is Virginia v. Rives, 100 
U. S. 313 (1879). There, the defendants had been indicted 
for murder and challenged the venire on the ground of its 
racial composition and prejudice.

Turning to the procedure upon which Virginia v. Rives, 
supra, reached the Supreme Court, it is interesting to 
notice that the petition for removal was made and the 
Circuit Court of the United States issued a writ of habeas 
corpus cum causa.

Appendix I—Opinion, Filed April 22, 1964



4a

“ No motion— ” the Court said at page 316—“has 
been made in the Circuit Court to remand the prose­
cutions to the State court, but the Commonwealth of 
Virginia has applied to this court for a rule to show 
cause why a mandamus should not issue commanding 
the judge of the District Court of the Western Dis­
trict of Virginia, the Honorable Alexander Rives, to 
cause to be redelivered by the marshal of the said 
district to the jailer of Patrick County the bodies of 
the said Lee and Burwell Reynolds, to be dealt with 
according to the laws of the Commonwealth. The rule 
has been granted, and Judge Rives has returned an 
answer * *

The Court goes on to say, page 317:

“ It is, therefore, a material inquiry whether the pe­
tition of the defendants set forth such facts as made 
a case for removal, and consequently arrested the 
jurisdiction of the State court and transferred it to 
the Federal Court— ” and then cites Section 641, which 
is the genesis of the law which we are considering.

The case, as you can see, came up on mandamus without 
the Supreme Court hearing evidence, but considering only 
the allegations of the petition.

In Kentucky v. Powers, a similar situation existed. The 
Court pointed out, page 33:

“ The Commonwealth of Kentucky has not filed a 
reply to said petition for removal, or in any way taken 
issue with the defendant as to any of the allegations 
thereof.”—

Appendix I—Opinion, Filed April 22, 1964



5a

The Court realizes that in this case there has been an 
answer filed denying some of the allegations, but that 
answer is not before us at this time. The issue of fact 
is not before us. And the Court said:

—“ Said allegations must, therefore, be accepted as 
true, save in so far as they may be contradicted by 
the transcript on file herein.”

And they went on to show that there was no contra­
diction.

On page 35, the Court said:

“ Taking then the facts to be as represented in the 
petition for removal, still the remedy of the accused 
was not to have the prosecution removed into the Fed­
eral court—that court not being authorized to take 
cognizance of the case upon removal from the State 
court.”

In the present case the Court, without at this time recit­
ing the facts set forth in the petition and amended petition, 
takes all well pleaded facts as established.

We turn now to the Act, Section 1443 of Title 28, United 
States Code. The Court understands from the argument 
and from the briefs that it is not seriously contended that 
prejudice alone is cause for removal even though that 
prejudice results from racial differences. There are many 
cases which support that proposition. The serious question 
under section (1) is the allegation in the petition that the 
defendant in Prince Edward County cannot secure a jury 
constituted according to the requirements of the United

Appendix I—Opinion, Filed April 22, 1964



6a

States Constitution. That is, that the jury is selected in 
a discriminatory manner, and does not provide him with 
the nondiscriminatory jury to which he is entitled.

There are a number of cases which consider this subject. 
Possibly, the leading case— certainly one that reviews 
many of the others—is Kentucky v. Powers, 201 U.S. 1 
(1905). There, the Court pointed out that the mischief 
which section (1) sought to remedy was that which might 
be provided by state law, or state constitutional provision. 
The Court said, at page 29:

“When a statute of the state denies his right, or 
interposes a bar to his enforcing it, in the judicial tri­
bunals, the presumption is fair that they will be con­
trolled by it in their decisions; and in such a case 
a defendant may affirm on oath what is necessary for 
a removal. Such a case is clearly within the provisions 
of Section 641. But when a subordinate officer of the 
State, in violation of state law, undertakes to deprive 
an accused party of a right which the statute law 
accords to him, as in the case at bar, it can hardly be 
said that he is denied, or cannot enforce, ‘in the judicial 
tribunals of the State’ the rights which belong to 
him. In such a case it ought to be presumed the 
court will redress the wrong. If the accused is deprived 
of the right, the final and practical denial will be in 
the judicial tribunal which tries the case, after the 
trial has commenced. If, as in this case, the sub­
ordinate officer, whose duty it is to select jurors, fails to 
discharge that duty in the true spirit of the law; if he 
excludes all colored men solely because they are col­

Appendix 1—Opinion, Filed April 22, 1964



7a

ored; or if the sheriff to whom a venire is given, 
composed of both white and colored citizens, neglects 
to summon the colored jurors only because they are 
colored; or if a clerk whose duty it is to take the 
twelve names from the box rejects all the colored 
jurors for the same reason—it can with no propriety 
be said the defendant’s right is denied by the State 
and cannot be enforced in the judicial tribunals. The 
court will correct the wrong, will quash the indictment 
or the panel, or, if not, the error will be corrected in a 
superior court. We cannot think such cases are within 
the provisions of Section 641. Denials of equal rights 
in the action of the judicial tribunals of the State are 
left to the revisory powers of this court.”

The Court quoted extensively from Virginia v. Rives, 
supra, in reaching that conclusion.

At page 31, the Court goes on to say:

“ 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, 
with respect to his equal rights, was due to the illegal 
or corrupt acts of administrative officers, unauthor­
ized by the Constitution or laws of the State, as inter­
preted by its highest court. For wrongs of that char­
acter the remedy, it was held, is in the state court, 
and ultimately in the power of this court, upon writ 
of error, to protect any right secured or granted to an 
accused by the Constitution or laws of the United 
States, and which has been denied to him in the highest

Appendix 1—Opinion, Filed April 22, 1964



8a

court of the State in which the decision, in respect of 
that right, could be had.”

Now, undoubtedly the petitioner recognizes that the 
above-mentioned cases set forth the applicable law. They 
buttress their recognition by saying that in the case of Com­
monwealth v. Bailey, 71 S. E. 2d 368, the Supreme Court of 
Appeals countenanced or approved discriminatory practices 
in the selection of a jury, and, therefore, the Virginia 
Statutes and Constitution must be considered to permit 
such discrimination. The petitioner urges that Bailey 
brings the case at bar squarely within the proposition 
cited in Kentucky v. Powers, supra, and the cases upon 
which its reasoning is based. If Bailey can be read to 
allow such discrimination, then it follows that under more 
recent decisions of the Supreme Court the Virginia Con­
stitution and Statutes do fall within the purview of section
( i ) .

The Court, however, concludes that the case of Bailey 
v. Commonwealth cannot be cited to establish the propo­
sition that in Virginia improper racial discrimination in 
the selection of jurors is permitted. That case must be 
considered solely upon the facts that were presented in it 
and upon the concessions made by counsel in argument. It 
cannot be considered as precedent for the proposition that 
if the defendant establishes in Prince Edward County 
factual racial discrimination, the Virginia courts will hold 
as a matter of law that such discrimination is permissible.

The Court reaches that conclusion not only from reading 
Bailey, but largely from the case of Bailey v. Smyth in 220

Appendix I—Opinion, Filed April 22, 1964



9a

F. 2d 954 (4th Cir. 1955). Of course, as we all know, the 
petitioner in Bailey v. Smyth was the appellant in Bailey 
v. Commonwealth.

The Court of Appeals for the Fourth Circuit, at 220 
F. 2d 955, points out that one of the grounds upon which a 
writ of habeas corpus was sought was “ that there had 
been discrimination on the ground of race in the selection 
of the jury by which he had been tried.” They found 
that such discrimination had not been established and 
refused to grant the writ.

They went further and held that the issues could be 
determined from the state record.

Therefore, this Court does not see how it can determine 
that the case of Bailey v. Commonwealth in 71 S. E. 2d 
368 establishes the proposition which counsel for the peti­
tioner urges upon this Court. To do so, the Court would 
have to disregard the plain holding of the Court of Appeals 
for the Fourth Circuit in Bailey v. Smyth, which was based 
not on the redetermination of the facts, but on the law. 
And this Court is not, of course, in a position to do so.

Judge Hayes pointed out in North Carolina v. Jackson, 
135 F. Supp. 682 (M. D. N. C. 1955), that there was no 
showing that the North Carolina Supreme Court had con­
sidered the constitutionality of the statute with respect to 
the Fourteenth Amendment of the Federal Constitution. 
He remanded the case to the state courts.

The Court cannot hold at this time that the Supreme 
Court of Appeals of Virginia would determine what con­
stituted, or did not constitute, a proper jury without giving 
proper effect to the Fourteenth Amendment.

Appendix I —Opinion, Filed April 22, 1964



10a

Turning now to section (2), which really is a more dif­
ficult phase of this case, the Court, as well as counsel, is 
handicapped by the fact that section (2) has received such 
slight judicial consideration. There are only two cases per­
taining to it and several cases closely related to it.

The first of these is Hodgson v. Millward, 12 Fed. Cas. 
285, No. 6,568 (Circuit Court E. D. Pa. 1863). In that 
case, an officer acting under a warrant was charged with 
a crime in the state court. The court sanctioned removal. 
The court said at page 286:

“ The order or warrant under which the defendants 
justify purported to have been issued by virtue of an 
authority derived from the president. This was ‘color 
of authority,’ whether the substance existed or not. 
The argument that ‘color’ being an accident, cannot 
exist without substance, may be metaphysically cor­
rect, but has too much subtlety for practical appli­
cation in the construction of statutes. We do not think 
it necessary to give a definition of ‘color of authority’ 
to suit all cases. For the purpose of this case it is 
enough to say, that an officer, acting in good faith 
under a warrant purporting to come from his su­
perior, whom he is bound to obey, is acting under 
‘color of authority,’ whether his superior transgresses 
his power, or the warrant be irregular or not. 
This is the question to be tried under proper pleadings 
and evidence before a jury.”

Appendix I—Opinion, Filed April 22, 1964



11a

Separated, as counsel have pointed out, by the span of a 
century is State of Arkansas v. Howard, 218 F. Supp. 626 
(E. D. Ark. 1963). There, the Court held that the peti­
tioner who sought removal was acting as a private citizen, 
and was not acting under any “ color of authority.” Specif­
ically, he was acting under no “ color of authority” con­
ferred by the federal court in the implementation of a 
decree pertaining to the desegregation of the schools.

The petition here does not allege that Mr. Wallace was 
acting under any warrant or commission conferred upon 
him by the federal government, or by any person acting in 
behalf of the federal government. The complaint under 
section (2) is based on the contention that the rights which 
are conferred by the Civil Rights Acts and by the Four­
teenth Amendment are such that a defendant may inter­
pose them for removal of the prosecution. He argues his 
acts are derived from a law providing for equal rights, 
“ or for refusing to do any act on the ground that it would 
be inconsistent with such law.” 28 U. S. C. 1443 (2).

Now, I realize the petitioner doesn’t base his argu­
ment only on that broad proposition. He is much more 
specific. He points out that he was acting as an assistant 
to a lawyer who was defending cases which arose out of 
the demonstrations asserting civil rights, and that those 
persons had a right to counsel under the Sixth Amendment; 
that he was a citizen of Ohio, and as such, he had all rights 
of a citizen of Virginia to walk through the courthouse; 
and that a white citizen acting as he had acted would not 
have been accosted in the first place, and subsequently 
would not have been arrested.

Appendix I— Opinion, Filed April 22, 1964



12a

Basically, it appears to the Court that petitioner is con­
tending that his case may be removed because it is a crim­
inal prosecution for any act derived from any law provid­
ing for equal rights, or for refusing to do any act on the 
ground that it would be inconsistent with such law.

Now, that is reading the statute verbatim with one ex­
ception—elimination of the phrase “under color of au­
thority.” If the petitioner is correct in his contention, the 
phrase “ under color of authority” plays no part in the Act, 
It is surplusage. It is unnecessary. The Court believes that 
it cannot disregard that phrase.

“Authority” in the law has many definitions, but in the 
context in which it is used here it means a lawful delega­
tion of power by one person to another, and ordinarily 
the phrase “ color o f” allows assertion of the right even 
though the authority is irregular or legally deficient,

The language in Tennessee v. Davis, 100 U. S. 257 (1879), 
is broad enough to sanction removal in this case. 
That is the language which was very forceably argued to 
the Court by Mr. Allen, but that language is concerned 
with the power of Congress to provide for removal, and 
not with what Congress has actually done.

In Tennessee v. Davis, the removal was granted under 
another section because the petitioner in that case was an 
officer, or claimed to be an officer of the United States, 
acting in his official capacity, when he was arrested for 
acts which he had committed in that capacity.

No case has been cited to the Court which would permit 
the Court to allow removal of a criminal prosecution for 
any act which was simply derived from any law providing

Appendix I—Opinion, Filed April 22, 1964



13a

for equal rights, or refusing to do any act on the ground 
that it would be inconsistent with such law. To follow the 
argument of the petitioner, the Court would have to con­
strue the statute without giving effect to the phrase “ under 
color of authority.”

In other words, section (2) does not embrace all prose­
cutions in which the defense interposes an act derived from 
any law providing for equal rights, or refusing to do any 
act on the ground that it would be inconsistent, with such 
law.

This is not to say that the defendant’s constitutional 
rights cannot be claimed and finally adjudicated in a fed­
eral court.

Possibly, the best statement of this right is found in the 
last paragraph of Virginia v. Rives, 100 XL S. 338:

“ Undoubtedly, if in the progress of a criminal prose­
cution, as well as in the progress of a civil action, a 
question arises as to any matter under the Constitution 
and laws of the United States, upon which the de­
fendant may claim protection, or any benefit in the 
case, the decision thereon may be reviewed by the Fed­
eral judiciary, which can examine the case so far, and 
so far only, as to determine the correctness of the 
ruling. If the decision be erroneous in that respect, it 
may be reversed and a new trial had. Provision for 
such revision was made in the Twenty-Fifth Section 
of the Judiciary Act of 1789, and is retained in the 
Revised Statutes. That great act was penned by Oliver 
Ellsworth, a member of the convention which framed 
the Constitution, and one of the early chief justices of

Appendix I —Opinion, Filed April 22, 1964



14a

this court. It may be said to reflect the views of the 
founders of the Republic as to the proper relations 
between the Federal and State courts. It gives to 
the Federal courts the ultimate decision of Federal 
questions, without infringing upon the dignity and 
independence of State courts. By it harmony between 
them is secured, the rights of both Federal and State 
governments maintained, and every privilege and im­
munity which the accused could assert under either 
can be enforced.”

Mr. Justice Douglas, concurring in England v. Louisiana 
State Board of Medical Examiners, 375 U. S. 411, 434 
(1963), restated that proposition: “ Cases where Negroes 
are prosecuted and convicted in state courts can find their 
way expeditiously to this Court provided they present 
constitutional questions.”

The motion to remand is granted.
The Court requests counsel to present an order properly 

endorsed.
Now, much has been said about the right to appeal. Of 

course, that is not a question for this Court to decide. It 
has been suggested that upon that question there are two 
viewpoints. I believe counsel mentioned to me that they 
contemplate an appeal.

Gentlemen, if you decide to appeal, the Court will stay 
the execution of this order pending determination on ap­
peal.

M r. T u cker : If Your Honor please, we move for such a 
stay of the execution of an order pending an appeal.

Appendix I— Opinion, Filed April 22, 1964



15a

The Court: The stay will be granted, and I ask
these gentlemen to prepare a very simple order: For the 
reasons stated from the bench, the motion to remand is 
granted. And send it along to counsel so they can put in 
the provision concerning the stay. You gentlemen can get 
together, I am sure. It is not difficult to work out, and I 
don’t want you to have to come and find a time on my docket 
when I can hear you on it. I am sure you will reach agree­
ment.

Appendix I— Opinion, Filed July 22, 1964



16a

[Caption omitted]

Order

This cause having come on this day to be heard on Peti­
tion for Removal filed by Fred Wallace and on Petition 
for Remand filed by the Commonwealth of Virginia, it 
being argued before the Court on the questions of law 
therein contained, it appearing to the Court for the reasons 
set forth in its Opinion that this cause should not be trans­
ferred to this Court, but should be remanded to the Circuit 
Court of the County of Prince Edward.

It is, therefore, adjudged, ordered and decreed that the 
above cause be and is hereby remanded to the Circuit Court 
for the County of Prince Edward, Virginia.

But counsel for the defendant Wallace, having indicated 
their intention to appeal to the United States Court of 
Appeals for the Fourth Circuit, it is ordered that the 
execution of this order be suspended until the United States 
Court of Appeals for the Fourth Circuit acts upon said 
appeal.

Seen:

/ s /  S. W. T ucker

Of Counsel for Defendant

Order of the District Court



17a

I n  the

UNITED STATES DISTRICT COURT 

F oe the E astern D istrict oe V irginia 

R ichmond D ivision

Criminal Actions Nos. 7472, 7473, 7475, 7475

Opinion, Filed July 22 , 1964

Com m onw ealth  of V irginia,

— vs.—
Plaintiff,

L eah B. M orris, H ollis B. M orris, H erman T rent 
and F rank B rown,

Defendants.

July 22, 1964

T he Court: Gentlemen, it appears that the issue in this 
case present the same questions raised in Commonwealth 
of Virginia v. Fred Wallace, Criminal No. 7429, Eastern 
District of Virginia, April 10, 1964. That opinion has not 
been published. However, of course is on file with the 
papers in the Wallace case.

I believe it is more accurate to state, is it not, Mr. Marsh, 
that this case raises the questions decided only in the part 
of that opinion pertaining to Section (1) of the Act?

* * * * *



18a

Appendix I—Opinion, Filed April 22, 1964

T he Court: The appellate rules require that the memo­
randum of the Court be printed. For that reason, the Court 
adopts as its decision in this case the Wallace opinion, or 
at least that part of it which deals with Section (1).

[That part of the Ruling of the Court in Commonwealth 
of Virginia v. Fred Wallace, Crim. No. 7429, E. D. Va. 
April 10, 1964 which pertains to point (1) appears at pp. 
2a-9a, supra.]

* * * # *



19a

[Caption omitted]

Order

[Filed July 22, 1964]

Upon consideration of the petition for removal filed by 
the defendants in each of these cases and on petition for 
remand filed by the Commonwealth of Virginia, upon mo­
tion of all parties, it is A djudged and Ordered that these 
cases are consolidated for disposition in this Court and for 
appeal.

For reasons stated by the Court from the bench and iu 
the Memorandum of the Court in deciding the case of Com­
monwealth of Virginia v. Fred Wallace, Criminal #7429 
(E. D. Va. April 10, 1964), it is A djudged and Ordered that 
these cases are remanded to the Circuit Court of Amelia 
County, Virginia.

The defendants, by counsel, having indicated their inten­
tion to appeal to the United States Court of Appeals for 
the Fourth Circuit, it is Ordered that the execution of this 
order be suspended until the United States Court of Ap­
peals for the Fourth Circuit acts upon said appeal.

/ s /  Jornsr D. B utzuer, Jr.
United States District Judge

Order of the District Court

July 22, 1964



20a

APPENDIX II

Opinions of the Court of Appeals

UNITED STATES COUKT OF APPEALS 

F or th e  F ourth  Clrcuit 

No. 9462

Com m on w ealth  of V irginia ,

Appellee,

versus

F red W allace,

Appellant.

Appeal from the United States District Court for the 
Eastern District of Virginia, at Bichmond. John D. 
Butzner, Jr., District Judge.

Argued January 11, 1965

Before H ayn sw o rth , Chief Judge, and S obeloff, B ore- 
m a n , B ryan  and J. S pencer B ell, Circuit Judges, sitting 
en banc.



21a

Appendix II—Opinions of the Court 

Opinion of the Court

(Filed January 21, 1966)

H ayn sw o rth , Chief Judge:

We agree with the District Judge that this case, involving 
state charges of assault, disorderly conduct and related 
offenses, was not removable under the provisions of 28 
U. S. C. A. § 1443.

Wallace, a law school student, had accepted a summer 
clerkship with Messrs. Tucker and Marsh of Richmond, 
Virginia. That firm had represented Negroes in a number 
of school and other cases with racial significance. It sent 
their clerk, Wallace, to Prince Edward County in connec­
tion with their representation of some civil rights demon­
strators who had been arrested there. In the court house, 
he became involved in a fracas with two deputy sheriffs, 
out of which the charges grew.

In the removal petition, Wallace alleges that he was 
accosted because of his race and that he only resisted an 
effort to interfere with his conduct of his lawful business.

He claims to have been exercising his constitutional 
rights in aid of the constitutional rights of the clients of 
his employer. He undertook removal under both 1443(1) 
and (2).

What we have said in Baines v. City of Danville, decided 
today, substantially disposes of this case. Here, however, 
two contentions, which we had no occasion to consider in 
Baines, are advanced.

Because the Court in Barney v. City of New York, 193 
U. S. 430, attributed to Virginia v. Rives, 100 U. S. 313, 
a very restrictive concept of state action and because



22a

Barney’s formulation was later rejected,1 it is said that 
Virginia v. Rives and Kentucky v. Powers, 201 TJ. S. 1, 
must also have been rejected. The obvious answer is that 
Rives is susceptible of no such reading. Discrimination in 
the selection of a jury, though unsanctioned by state law, 
is state action and, because it is, a judgment tainted 
with such discrimination will be reversed on certiorari to 
the state court.1 2 It is not removable in advance, however, 
because the basis of removal cannot then be demonstrated 
with that certainty contemplated by the Civil Rights Act 
of 1866 and its sponsors, as we have undertaken to show 
in our opinion in Baines.

Here, it is also contended that the jury commissioners 
in Prince Edward County limit the number of Negroes so 
that seldom, if ever, are there so many that all may not 
be removed by peremptory challenges. This, of course, is 
the same contention which the Rives-Powers line of cases 
has held insufficient to support removal. Here, however, 
it is said that discrimination by the commissioners has the 
sanction of Virginia’s Supreme Court of Appeals. The 
opinion in Bailey v. Commonwealth, 193 Va. 814, 71 S. E. 2d 
368 is cited as that sanction.

We cannot construe that opinion as having any such 
meaning. Particularly when read in the light of the opinion 
in Bailey’s first appeal3 and of our opinion in Bailey’s 
subsequent habeas corpus case,4 it is apparent that Vir-

1 United States v. Raines, 362 U. S. 17.
2 See e.g. Bush v. Kentucky, 107 U. S. 110.
3 Bailey v. Commonwealth, 191 Va. 510, 62 S. E. 2d 28.
4 Bailey v. Smyth, 4 Cir., 220 F. 2d 954.

Appendix II— Opinions of the Court



23a

ginia’s Supreme Court of Appeals follows the approved 
doctrine.5

Since the case was not removable under 28 U. S. C. A. 
§ 1443, we affirm the remand order.

Affirmed.
*  *  *  *  *

Sobeloff and J. Spencer B ell, Circuit Judges, dissenting:

This case arises out of what could have been a common­
place visit to the Prince Edward Comity court house. Ap­
pellant Wallace was a young Negro student at Harvard 
Law School who during the summer months was assisting 
a firm of Negro lawyers serving as counsel for Negroes 
arrested in civil rights demonstrations. On the day in ques­
tion appellant entered the court house intending to visit 
one of the firm’s clients. He was intercepted by a deputy 
sheriff and other officers. After a scuffle Wallace was locked 
up. One of the officers sustained a bruised shin and a cut 
finger. Wallace was fined $25 for resisting arrest and he 
paid the fine.

This was only the beginning. The officers lodged seven 
additional charges, proliferated from this episode, one of 
which was assaulting the deputy sheriff. Wallace alleges 
that when the Commonwealth’s Attorney discovered his 
association with a Negro civil rights law firm, this minor 
“ assault” was raised to a charge of “ malicious maiming,” 
a felony carrying a permissible penalty of twenty years in 
the penitentiary, and incidentally a possible bar to admis­
sion to the practice of law.

Appendix II— Opinions of the Court

5 See also, Clark v. Commonwealth, 167 Va. 472,189 S. E. 143.



24a

The petition for removal alleges the local prejudice in 
Prince Edward County and the improbability of securing 
a fair trial, particularly for one associated with the move­
ment to terminate racial discrimination. The tenor of his 
petition is that the prosecutions against him are a part 
of the community plan to frustrate the movement. This 
was to be achieved by suppressing persons willing to assist 
those arrested for protesting existing conditions and seek­
ing equal civil rights. He cites, by way of illustration, the 
fact that lawyers in Prince Edward County and neigh­
boring counties have consistently declined to participate 
in the defense of civil rights cases on the ground that local 
sentiment would prove harmful to any lawyer who did so.1

We think that the circumstances and the atmosphere rep­
resented in the petition for removal, if established, con­
stitute a “ denial and inability to enforce” the equal civil 
rights of both Wallace and the Negro defendants he was 
attempting to assist. He is within section 1443 for the 
reasons more fully discussed in our dissent in Baines v. 
City of Danville, No. 9080. 1

Appendix II— Opinions of the Court

1 The difficulty of securing legal representation in civil rights 
cases in Prince Edward County was highlighted by the award
recently given to George E. Allen. Sr., of the Richmond Bar. who 
was prevailed upon to enter this ease. The ‘ ‘Award for Courageous 
Advocacy" was given him by the College o f American Trial 
Lawyers. American Bar Association Xews, vol. 10. No. 9 (Septem­
ber 15r 1965 .



25a

Appendix II— Opinions of the Court 

Opinion of the Court

(Filed January 21,1966)

UNITED STATES COURT OF APPEALS 

F oe the F ourth Circuit 

No. 9587

Commonwealth op V irginia,
Appellee,

—versus—

L eah B. M orris, H ollis B. M orris, H erman T rent 
and F rank B rown,

Appellants.

Appeal from the United States District Court for the 
Eastern District of Virginia, at Richmond. John D. 
B utzner, Jr., District Judge.

Argued January 11,1965

Before H aynsworth, Chief Judge, and S obeloff, B ore- 
m an , B ryan and J. Spencer B ell, Circuit Judges, sitting 
en banc.

H aynsworth, Chief Judge:

The defendants, charged in the state court with assault 
and battery upon two white men,1 sought to remove their

1 The incident had no other racial connotation.



26a

Appendix II— Opinions of the Court

cases under Title 28 U. S. C. A. § 1443(1). The sole ground 
is a claim of jury discrimination with which we dealt in 
Commonwealth of Virginia v. Wallace, decided this day.

For the reasons there stated, remand of these cases to 
the state court was proper.

Affirmed.

S obeloff and J. S pencer B ell, Circuit Judges, dissenting:

In their petition for removal, these Negro appellants 
state that while travelling with friends to a wedding in 
Amelia County, Virginia, their car was forced to stop be­
cause the road was blocked by another vehicle, operated by 
two white men. Thinking that these persons might be in 
some difficulty, the appellants offered assistance. The white 
men became “ vile and belligerent” and one of them struck 
Mrs. Morris with a hoe, breaking her arm. The following 
day the Negroes were arrested, charged with assault and 
battery, and convicted by the Amelia County court.

After docketing an appeal for a trial de novo in the 
Circuit Court for Amelia County, petitioners removed their 
eases to the United States District Court for the Western 
District of Virginia under 2S IT. S. C. A. § 1443. on the 
ground that due to the svstematie exclusion of Negroes

•  C r

from juries in Amelia County, they would be unable to re­
ceive a fair trial as guaranteed by the Equal Protection 
Claus- :: the Fourteenth Anter intent to the Constitution. 
The restrict Court remanded, motir.g from the District

ion in 2 t r  e ase of C:mmc'KiceaJ\ - HTfjZLic >.

dsehdei on appeal by our court today in No. 
inmi-rhues reded cr were t. Fosrers,
1 ?y. - m d F  , ■ t y . 1C r  S 31.' IF which



27a

removal was refused because the asserted denial of equal 
rights did not appear on the face of a state statute.

Here, unlike Baines v. City of Danville, No. 9080, and 
Commonwealth v. Wallace, No. 9462, the defendants made 
no allegations that these and other arrests and pending 
prosecutions were part of a program to suppress the equal 
civil rights of the petitioners and the entire Negro com­
munity. Yet the habitual exclusion of Negroes from juries 
which try members of that race is an equally effective means 
of denying them equality before the law. In Baines and 
Wallace we said that if the petitioners could establish in 
advance of their trials that by the unconstitutional appli­
cation of valid state laws, through the practice of a policy 
of discrimination, they would be unable to enforce their 
equal civil rights at trial, they were entitled to have their 
cases heard in the federal forum. The question here is 
whether the plaintiffs are entitled to have their cases re­
moved under section 1443, in the absence of allegations, as 
were present in Baines, of a design to suppress the Negro 
minority by wholesale arrests and prosecutions, if there 
nevertheless appears a strong likelihood that the appellants 
will be denied equal civil rights by reason of the prevailing 
systematic practice of excluding Negroes from Amelia 
County juries.

Concededlv, the doctrine of Rives-Powers suggests a 
negative answer. But the doctrine of these cases is the 
fruit of a misunderstanding of the basic requirement for 
removability as expounded in Strauder v. TFes£ Virginia, 
100 U. S. 303 (1879), where the Court emphasized that 
“ inability to enforce equal rights” must appear in advance 
of trial. Evidence of this inability was there found in the

Appendix II—Opinions of the Court



28a

existence of a state statute which was unconstitutional 
on its face; but later cases transmuted this particular ap­
plication into a limitation on the principle itself, holding 
that a statute invalid on its face was the only evidence by 
which “ inability to enforce” could be shown.

In any event, Congress has recently plainly indicated 
its expectation that the appellate courts shall interpret the 
removal statute in accord with its original meaning and 
restore life to its plain language.1 The time has come for a 
frank recognition that the Rives-Poivers restrictions on 
removability are justified neither by the language of the 
statute nor by its legislative history.1 2

We would hold these cases removable if appellants can 
show at a hearing in advance of their trials that Negroes 
have been consistently and systematically excluded from

Appendix II— Opinions of the Court

1 See 110 Cong. Rec. 6955 (1964) (remarks of Senator Dodd, 
floor manager of section 901 of the 1964 Civil Rights Act, allowing 
appeal of remand orders) ; 110 Cong. Rec. 2770 (1964) (remarks 
of Rep. Ivastenmeir, manager of section 901 in the House).

2 The debates preceding enactment of the present section 1443 
show primary concern with discrimination against Negroes from 
the unconstitutional application of state laws, particularly the 
so-called “Black Codes.” Many of these codes were valid on their 
face but were employed with great effectiveness to suppress the 
Negro. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 1123-24 (March 
1, 1866) (remarks of Rep. Cook). In the major speech urging 
passage of the Act over presidential veto, Senator Trumbull 
pointed out:

“ In some communities in the South a custom prevails by which 
different punishment is inflicted upon the blacks from that 
meted out to whites for the same offense.” Cong. Globe, 39th 
Cong., 1st Sess. 1759 (April 4, 1866).

Congress knew that only by permitting Negroes to show discrimina­
tion in advance of their trials could there be any assurance that 
the effect of such customs would be ameliorated.



29a

juries in Amelia County for many years, and that there is a 
strong probability that they will be excluded at the trial of 
these cases.

Swain v. Alabama, 380 U. S. 202 (1965), is not to the con­
trary. As we read the majority opinion in that case it 
was not meant to retract the Court’s oft repeated holdings 
condemning racial exclusion from juries.3 It merely con­
cluded upon that record that the Negro defendant had failed 
to show systematic exclusion of Negroes from jury panels 
in Talledega County, Alabama. The plain intimation was 
that if there had been such a showing the conviction could 
not stand. We do not overlook the fact that the Supreme 
Court review in Swain was on appeal from the state Su­
preme Court; removal to a federal district court had not 
been sought in that case. The present appellants did make 
the required allegations for removal,4 and they should be

3 See, e.g., Arnold v. North Carolina, 376 U. S. 773 (1965) ; Norris 
v. Alabama, 294 U. S. 587 (1935).

4 As Justice White was careful to emphasize in the majority 
opinion in Swain:

“ [W ]hen the prosecutor in a county, in case after case, what­
ever the crime and whoever the defendant or victim may be, 
is responsible for the removal of Negroes who have been selected 
as qualified jurors by the jury commissioners and who have 
survived challenges for cause, with the result that no Negroes 
ever serve on petit juries, the Fourteenth Amendment claim 
takes on added significance. Cf. Yiclc Wo v. Hopkins, 118 U. S. 
356. In these circumstances, giving even the widest leeway to 
the operation of irrational but trial-related suspicions and 
antagonisms, it would appear that the purposes of the peremp­
tory challenge are being perverted. I f the State has not seen 
fit to leave a single Negro on any jury in a criminal case, the 
presumption protecting the prosecutor may well be overcome.” 
Swain v. Alabama, 380 U. S. at 223-24 (Emphasis added).

Here, appellants allege that “ seldom, if  ever,”  have Negroes 
served on Amelia County juries, and if this contention is proven, 
they will clearly be entitled to relief under Swain.

Appendix II— Opinions of the Court



30a

Appendix II— Opinions of the Court

afforded an opportunity to prove their allegations. If the 
proof measures up to the allegations they will indeed have 
demonstrated before trial, as required by section 1443, then- 
inability to enforce their equal civil right to be tried before 
a jury lawfully chosen.



31a

APPENDIX III

UNITED STATES COURT OF APPEALS 

F or the F ourth Circuit 

No. 9080

Opinion of the Court of Appeals in
Baines v. City of Danville

B ruce B aines, et al., 

versus

City oe Danville, V irginia,

Appellants,

Appellee.

No. 9082

H ildreth G. M cG hee , et al., 

versus

City of Danville, V irginia,

Appellants,

Appellee.

Appeals from the United States District Court for the 
Western District of Virginia, at Danville.

Thomas J. Michie, District Judge.

Reargued January 11, 1965

Before H aynsworth, Chief Judge, and Sobeloff, Bore- 
m an , B ryan and J. Spencer B ell, Circuit Judges, sitting 
en banc.



32a

Opinion of the Court

(Filed January 21, 1966)

H aynsworth , Chief Judge:

In Baines v. City of Danville, 4 Cir., 337 F. 2d 579, we 
held, among other things, that orders remanding to the 
state court 105 removed criminal cases were not reviewable 
on appeal or by mandamus.1 In the interval between the 
preparation of the opinion and the entry of the final judg­
ment, however, the Civil Rights Act of 1964 was enacted, 
providing in its Section 901 that 28 U. S. C. A. § 1447(d) 
be amended to authorize review, “by appeal or otherwise,” 
of remand orders in civil rights cases removed under the 
provisions of 28 U. S. C. A. $ 1443. Because of the interven­
tion of the Civil Rights Act of 1964, we granted a petition 
for rehearing.1 2

I.

We have no doubt that Section 901 of the Civil Rights 
Act of 1964 should be applied to appeals such as these which 
were still pending in this Court on the effective date of 
the act.3 And we agree with the Second Circuit4 that Sec­
tion 901 should be construed as authorizing review through 
direct appeals rather than by mandamus only, despite the 
fact that remand orders may be interlocutory.

1 See Section II of the opinion beginning- at page 596.
2 337 F. 2d at 602.

3 See Congress of Racial Equality v. Town of Clinton, 5 Cir., 
346 F. 2d 911; Rachel v. Georgia, 5 Cir., 342 F. 2d 336.

4 New York v. Galamison, 2 Cir., 342 F. 2d 255.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



33a

II.

We turn then to the propriety of the remand orders.
The defendants were charged in the Corporation Court 

of the City of Danville, Virginia, with violations of an in­
junction and temporary restraining order, which had issued 
in response to alleged violence and excesses during racial 
demonstrations in Danville. The general background suffi­
ciently appears in our earlier opinion.5

The injunctive order proscribed participation in mob 
violence and rioting and incitement to such conduct. It pro­
hibited other conduct such as carrying deadly weapons, as­
sembling, and obstructing traffic, but all of such prohibi­
tions, by the repeated use of the words “ unlawful” and 
“ unlawfully,” were limited to conduct in violation of other 
statutes or ordinances.

Removal of each of the 105 cases was effected by one 
of two removal petitions, a number of the petitioners join­
ing in one, while the remainder joined in the other. Except 
that one of the petitions contains allegations designed to 
show that a trial in the Corporation Court of Danville is 
likely to be unduly restrictive and unfair, the two peti­
tions are substantially alike. In conclusionary terms, they 
allege that the petitioners were being prosecuted for demon­
strating in the streets of Danville in protest against cus­
toms and practices perpetuating racial segregation, that the 
injunctive order is unconstitutional for “making criminal” 
conduct which is constitutionally protected and that the 
injunction is in violation of their civil rights. Each peti­
tion also contains an allegation, paraphrasing 28 U. S. C. A.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

5 See particularly 337 F. 2d 579, 583-5.



34a

§ 1443, that the petitioners are denied or cannot enforce 
in Virginia’s courts rights under laws of the United States 
providing for equal rights and that they are being prose­
cuted for acts done under color of authority of such laws.

The relevant statute, as now codified in 28 U. S. C. A. 
§ 1443, has been described as a “ text of exquisite obscu­
rity.” 6 It reads:

Any of the following civil actions or criminal prosecu­
tions, 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 jurisdiction 
thereof;

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

The statute is derived from the Civil Rights Act of 1866. 
The relevant language there is not so obscure, or its obscu­
rity is not so exquisite as that of the present codification. 
That language is illumined by its immediate context in the 
Civil Rights Act of 1866, and by the context of that Act

6 Amsterdam, Criminal Prosecutions Affecting Federally Guar­
anteed ( ivil Rights: Federal Removal And Habeas Corpus Juris­
diction To Abort State Court Trial, 113 U. Pa. L. Rev. 793, 843.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



35a

in its historical setting. Against that background, sub­
sequent authoritative opinions of the Supreme Court are 
largely dispositive of the questions presented, and they are 
not properly subject to criticism as being ungenerous. 
Those Supreme Court decisions do not reflect the intention 
of the Thirty-ninth Congress, but the fact that they do 
not is the necessary consequence of a radical alteration of 
the congressional intention when the Congress prohibited 
post-trial removal of cases from state courts.

III.

Initially, we should closely examine the Civil Rights Act 
of 1866,7 the antecedent of the present 28 U. S. C .A. § 1443.

Section 1 of that act declared that all native born people, 
except those subject to foreign powers and Indians, were 
citizens. It conferred upon the former slaves the

same right . . .  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 punish­
ment, pains, and penalties, and to none other, any law, 
statute, ordinance, regulation, or custom, to the con­
trary notwithstanding.8

Section 2 made it a crime for anyone acting under color 
of any state law, regulation or custom to subject any per-

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

7 Act of April 9, 1866,14 Stat. 27.
8 Now 42 U. S. C. A. §§ 1981-82.



36a

son to the deprivation of rights conferred npon him by 
Section l .9

Section 3 is the removal section10 and is in the following 
language:

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 persons 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, trespasses, or wrongs done or 
committed by virtue or under color of authority de­
rived from this act or the act establishing a Bureau for 
the relief of Preedmen and Refugees, and all acts 
amendatory thereof, or for refusing 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

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

9 Now 18 U. S. C. A. § 242.
10 Now 28 U. S. C. A. § 1443(1), (2).



37a

Appendix III— Opinion of the Court of Appeals 
in Baines v. City of Danville

corpus and regulating judicial proceedings in certain 
cases/ approved March three, eighteen hundred and 
sixty-three, and all acts amendatory thereof. . . .

Then followed Sections 4 through 10, which are the en­
forcement provisions. They illuminate the antecedents of 
the clause which is now 28 U. S. C. A. § 1443(2). Section 4 
provided that every district attorney, marshal, deputy 
marshal and United States commissioner and all agents of 
the Freedmen’s Bureau were charged with the enforcement 
of the act and authorized to arrest and institute proceed­
ings against persons charged with its violation.11 If the 
need should occur, the courts were authorized to increase 
the number of commissioners for the purpose of arrest and 
examination of persons charged with violations of Section 
2.11 12 In Section 5 the commissioners were authorized to 
appoint “ one or more suitable persons” to serve warrants 
and other process and the persons so appointed were au­
thorized to execute them. Moreover, any such suitable 
person appointed by a commissioner was authorized to call 
to his aid all bystanders or posse comitatus, and even the 
land and naval forces of the United States to assure com­
pliance with this act.13

It thus appears that the statute contemplated that lit­
erally thousands of persons would be drawn into its en­
forcement and that some of them otherwise would have 
little or no appearance of official authority.

11 Now 42 U. S. C. A. § 1987.
12 Now 42 U. S. C. A. § 1989.
13 Now 42 U. S. C. A. § 1989.



38a

By Section 6 it was made a crime to wilfully hinder 
“ any officer, or other person charged with the execution of 
any warrant or process . . .  or any person or persons 
lawfully assisting him or them. . . . ” Section 7 gave to 
the person or persons authorized to execute process a fee 
of five dollars for each person arrested.14

The Civil Rights Act of 1866 was reenacted by Section 18 
of the Civil Rights Act of 1870.15 In that act, after making 
provision for voting rights and their enforcement, Section 
16 redeclared the rights conferred by Section 1 of the Civil 
Rights Act of 1866. The right of equality was extended 
as to taxes, licenses and other exactions as well as to pun­
ishments, pains and penalties. Also, discrimination in state 
charges upon immigrants was prohibited. So far as is rele­
vant here, however, the rights conferred by Section 16 of 
the Civil Rights Act of 1870 are identical to those conferred 
by Section 1 of the Civil Rights Act of 1866.

Section 17 of the Civil Rights Act of 1870 is comparable 
to Section 2, the penal provision of the Civil Rights Act 
of 1866, and Section 18 provided that enforcement of Sec­
tions 16 and 17 of the act shall be in accordance with the 
Civil Rights Act of 1866, which was then reenacted by 
reference.16

In compiling the Revised Statutes of 1875, when the sec­
tions conferring substantive rights were transferred to

14 Now 42 U. S. C. A. § 1991.
15 Act of May 31,1870. 16 Stat. 140.
16 It would be supposed that ratification of the Fourteenth 

Amendment in 1866 would have validated §§ 1 and 3 o f the Civil 
Rights Act of 1866. There is no room for questioning their con­
stitutionality after their reenactment in 1870.

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



39a

other places, it became necessary to rephrase the removal 
provisions of Section 3 of the Civil Rights Act of 1866. 
They appear in Section 641 of the Revised Statutes, which 
was in the following language:

When any civil suit or criminal prosecution is com­
menced 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 pro­
viding for equal rights as aforesaid, or for refusing 
to do any act on the ground that it would be incon­
sistent 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 
held in the district where it is pending. . . .

The language remained in substantially that form until 
the code revision of 1948 when it was changed to read as 
it now does. The 1948 Reviser made substantial changes 
in the language,17 all of which the Second Circuit has no­

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

17 To read as it now does, see Section II of this opinion.



40a

ticed with care in New York v. G-alamison, 2 Cir., 342 F. 2d 
255. He disclaimed, however, any intention to alter its 
meaning and it seems appropriate to accept him at his 
word. In all of the material now appearing on the subject, 
there seems to be general agreement that the meaning of 
Section 1443 in its present form may be more reliably de­
termined if attention is focused upon the language as it 
appeared in Section 3 of the Civil Rights Act of 1866 and 
Section 641 of the Revised Statutes of 1875.

Section 641 of the Revised Statutes of 1875 effected one 
significant change which requires our attention. It limited 
the right of removal to the pre-trial stage in the state court 
proceedings. Earlier, the Civil Rights Act of 1866 per­
mitted post-judgment removal,18 and it was post-judgment 
removal which the Thirty-ninth Congress envisioned as the 
primary means of effectuation of the purposes of Sec­
tion 3.19

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

Section 3 o f the Civil Rights Act o f 1566 adopted the removal 
procedure o f the Habeas Corpus Suspension A ct o f 1563. Section 
5 o f the Act of 1~53. 12 5tat. 754. 756-7. made the specified eases 
removable by a petition filed by a defendant in the state court “ at 
the time o f entering his appearance in such court.”  or "after final 
judgm ent" either party could remove the ease to the Circuit Court 
by an "appeal" filed curing the term m which the state court 
judgment ~as entered. Thereupon the Circuit Court was required. 
ntwiHwhiM ting the stair court judgment, to  try  the ease de novo, 
as if  originally brought there.

b u  r n t  if  pest-judgment removal was specifically rwwsdirmed

Aefc m  May 11. 1966.14 Stai. 4®. a—rudiag the re®auial proraaon 
■ - the Haaea.e herpes SuBf^-nsiou Art t>f 1563. which supplied the 
ureeednre f :t  removal under the Civil Eights Act or 15cc. ~

3 'See. infra Seetucn. IT.



41a

There is one final item in the formal legislative history 
which may be noticed. When the Congress provided in 
Section 901 of the Civil Rights Act of 1964 for appellate 
review of orders remanding removed civil rights cases, its 
attention was drawn to the judicial construction of the 
“ cannot enforce” portion of the removal statute. In the 
Senate20 and in the House,21 there were expressions of 
opinion that the Rives-Powers cases in the Supreme Court 
were too narrow and that the Supreme Court should or 
would relax their rule. Those expressions reflect no ap­
preciation of the fact that the reason §1441(1) was not 
as useful and available as the Thirty-ninth Congress 
may have intended was congressional prohibition of post­
conviction removal and not judicial penuriousness in the 
effectuation of congressional intention. If a majority of 
the Congress in 1964 thought the Supreme Court had mis­
interpreted the predecessors of 28 U. S. C. A. § 1443, it 
did nothing about it, though attention had been clearly 
focused on the subject. Minority expressions of an expecta­
tion of judicial reconsideration of congressional intent is 
not the equivalent of congressional redefinition of its inten­
tion. The absence of the latter is significant.

IV

The contention that the cases are removable under 28 
U. S. C. A. § 1443(1), the “ cannot enforce” clause, is prem­
ised upon (1) allegations that they cannot expect a full

20110 Cong. Ree. 6344 (Senator Kuehel), 6551 (Senator Hum­
phrey) and 6739-40 (Senator Dodd).

21110 Cong. Ree. 2770 (Representative Kastenmeir).

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



42a

and fair trial in the Corporation Court of Danville,22 (2) 
that they were engaged in conduct protected by the first 
amendment in protest against denial to them of rights 
which, in part at least, were protected by the fourteenth 
amendment, and (3) that the injunction which they are 
charged with having violated is unconstitutional on its face 
or as applied. These contentions considered alternatively, 
as presented, or collectively cannot be sustained.

This requires us to determine (1) whether the statutory 
phrase ‘Taw providing for equal civil rights” encompasses 
general first and fourteenth amendment rights, and (2) 
with what clarity removability must appear at the time the 
removal petition is filed.

It is readily apparent that the Civil Rights Act of 1866 
was directed principally to the “ Black Codes” and to those 
disabilities of slavery which had been firmly interwoven in 
the law of the Southern states. Those basic rights, the 
right to contract, to sue, to testify, to own property, to 
the protection of the law and its remedies, may have been 
inferentially conferred by the abolition of slavery, for their 
denial was its dependent, but they had not been widely or 
generally confirmed affirmatively. The Thirty-ninth Con­
gress did that, but the Civil Rights Act’s removal section 
was limited to those “ who are denied or cannot enforce in 
the courts or judicial tribunals of the state or locality 
where thev mav be anv of the rights secured to them bv 
the first section of this act.”  It was then plain, beyond

:: A paraphrase of the statute appears in both petitions. Factual 
allegations are included in only one. but they are made the prin­
cipal thrust of the briefs. They are based upon alleged events 
'•••: re and during the trial o f two of their arrested fellows. We will 
treat such allegations as having been made by all of the petitioners.

Appendix III— Opinion of the Court of Appeals
in Barnes v. City of Danville



43a

question, that removal would be available only upon a 
showing of denial of one of the rights enumerated in Sec­
tion 1 of that act.

As we have seen in the preceding section, its reenact­
ment in 1870 did not, in any relevant respect, enlarge the 
class of rights the denial of which would warrant removal. 
This was two years after ratification of the fourteenth 
amendment, but the Civil Rights Act of 1870 limited re­
moval, in this aspect of the case, to instances in which one 
of the rights enumerated in the statute was denied or could 
not be enforced in the state courts. These were not the 
broad due process and equal protection rights of the four­
teenth amendment, and assuredly not the rights of the 
first amendment. The statutes as they existed before the 
1875 revision are susceptible to no other interpretation 
than that the rights, denial of which would warrant re­
moval, are those rights specified in Section 1 of the Civil 
Rights Act of 1866 and Section 16 of the Civil Rights Act 
of 1870.

The difficulty arises out of the phrasing of Section 641 
of the Revised Statutes of 1875. The revisers placed the 
substantive rights declared in Sections 1 and 16, respec­
tively, of the Acts of 1866 and 1870, in Sections 1977 and 
1978 of the Revised Statutes, separated from Section 641, 
the removal section. It thus became necessary to describe 
the rights in some other manner than by the words ‘Tights 
secured to them by the first section of this act.” The re­
visers could, of course, have referred to “ the rights secured 
by sections 1977 and 1978.” They chose instead the generic 
language, “ any right secured to him by any law providing 
for the equal rights of the citizens of the United States,

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



44a

or of all persons within the jurisdiction of the United 
States. . . . ” This choice justifies the conclusion that the 
revisers intended Section 641 to be open-ended so that it 
would then include later acts couched in egalitarian terms, 
such as the Civil Eights Act of 1964. This is the view of 
the Second Circuit.23

The suggestion that the general reference to rights se­
cured by any law providing for equal civil rights includes 
those guaranteed by the Constitution would attribute to 
the revised statutes a radical expansion of the removal 
provision. Against this we have the general intention of 
the Congress that the codification should not work sub­
stantive change, and the fact that the postwar Congresses 
clearly indicated an intention to keep the removal sections 
more limited.

When the Civil Rights Act of 1870 was enacted, the four­
teenth amendment had been ratified two years earlier. 
But, as we have noted, the Congress in 1870 clearly re­
stricted the right of removal to instances in which the rela­
tively narrow rights that the statute specified were denied. 
They did not broaden them to include denial of the other 
rights sweepingly guaranteed by that amendment. The 
omission is made more pointed by the act of April 20, 
1871.24 Section 1 of that act created a civil remedy for 
deprivation under color of state law of any right, privilege 
or immunity secured by the Constitution.25 In providing

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

23 New York v. Galamison, 2 Cir., 342 F. 2d 255; see also City 
of Chester v. Anderson, 3 Cir., 347 F. 2d 823.

2417 Stat. 13.
25 Now 42 U. S. C. A. § 1983.



45a

the civil remedy, there is a reference to the Civil Rights 
Act of 1866. In contrast to what had been done the year 
before in the Civil Rights Act of 1870, there was no reen­
actment of the removal provision to include within it those 
substantive rights granted in Section 1 of the Act of 1871. 
The choice appears deliberate.

The revisers of 1875 knew this, for in Section 1979 of 
the revised statutes, incorporating the provisions of Sec­
tion 1 of the Act of 1871, now carried forward to 42 
[T. S. C. A. § 1983, the reference is to “ the deprivation of 
rights secured by the Constitution and laws.” Clearly, 
there, the word “ law” was not intended to include the Con­
stitution. It was used in the same sense in the related Sec­
tion 641.26 That is a natural construction of the word, and 
the only one consistent with the general congressional pur­
pose in 1875 not to work substantive change. There are 
substantially contemporaneous uses of the word in the 
same sense, as in the opinion in Strauder v. West Virginia, 
100 U. S. 303, 04. The 1875 revisers, as shown by Section 
1979, and Mr. Justice Strong in Strauder thought the 
“ Constitution” above mere “ laws” and employed the latter 
word in a sense exclusive of the former.

Nor can we find any reason to suppose that the revised 
statute was intended to expand the removal right in cases 
where the right denied was one secured by the Act of 1871 
but not by the Acts of 1866 and 1870. The Congress had 
made a choice. The rights secured by the two earlier acts

26 Professor Amsterdam in his scholarly article written with such 
sympathy for demonstrators such as these petitioners expresses the 
same conclusion. Amsterdam, supra note 6, at 873. However, he 
would expand the removal provisions to include a denial of any 
right secured by what is now 42 U. S. C. A. § 1983.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



46a

would support removal, if denied, while those secured by 
the Act of 1871 would not. There is no affirmative evidence 
anywhere that the Congress of 1875 intended to change 
this. The marginal references to the derivation of Section 
641, otherwise complete, do not refer to the Act of 1871. 
The most reasonable explanation of the choice of language 
would appear to be that the revisers understood that the 
laws were not static and that the Congress in the future 
might enact additional legislation similar to the Civil 
Rights Acts of 1866 and 1870, with an intention to expand 
the removal rights. Their use of generic language in Sec­
tion 641 would take care of that situation. It is reasonably 
susceptible to that construction without attributing to the 
revisers an intention to reverse the deliberate choice the 
Congress had so recently made.

We can discover nothing in Strauder v. West Virginia, 
100 U. S. 303, in conflict with this construction. In answer­
ing the first question, whether exclusion of Negroes from 
the jury was a denial of Strauder’s constitutional rights,27 
the Court necessarily considered the terms of the four­
teenth amendment. When it reached the second question, 
however, removability, the Court expressly stated of the 
phrase “ law providing for . . . equal civil rights,” as used 
in Section 641, “ This act plainly has reference to sects. 
1977 and 1978. . . . ” 28 It concluded that there was a right 
of removal under Section 641, because, “by the constitu­
tional amendment and sect. 1977 of the Revised Statutes, 
he was entitled to immunity from discrimination (in jury

27 See the statement of the two questions, 100 U. S. at 305.
28 See page 311.

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



47a

selection).” 29 That recognition of Sections 1977 and 1978 
as the referents of Section 641 cannot be ignored.

We conclude therefore that to the extent that the peti­
tioners claim defensively that their conduct was protected 
by the first amendment and that they were acting in aid 
of fourteenth amendment rights furnishes no basis for re­
moval. Even if we could read the equal protection clause 
of the fourteenth amendment into the phrase “ law provid­
ing for . . . equal civil rights” as used in § 641,30 it would 
avail these defendants nothing in aid of their first amend­
ment claim. The defense may be asserted in the state 
court and, if unsuccessful in the trial court, it may be con­
sidered by the Virginia Supreme Court of Appeals and, 
on certiorari, by the United States Supreme Court. And 
in the habeas corpus jurisdiction, the contention may 
ultimately be presented to the lower federal courts where 
the fairness of the state court’s resolution of factual issues 
involved in the application of the constitutional require­
ments, as well as its conception of those requirements, will 
be open to review.

Neither does the contention that the injunction is un­
constitutional facially or as applied warrant removal. The

29 See page 312. In this extract there is a reference to the “ con­
stitutional amendment” as well as to Section 1977, but only because 
the statement came at the conclusion of the discussion of the 
constitutionality of Section 641, itself. The Court was stating, in 
a conclusionary way, that there was a right of removal under 
Section 641 because the state denied a right protected by Section 
1977, which, with Section 641, was a valid implementation of the 
fourteenth amendment.

30 That is the stated position of the Second, Fifth and Ninth 
Circuits. See Peacock v. City of Greenwood, 5 Cir., 347 F. 2d 679, 
682; New York v. Galamison, 2 Cir., 342 F. 2d 255, 265, 271; Steele 
v. Superior Court, 9 Cir., 164 F. 2d 678.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



48a

injunction is not obviously facially unconstitutional as ap­
plied to actual rioters. The constitutional question, if it 
arises, would come out of its application. Of course, it 
would be unconstitutional if it became the basis of a con­
viction of a peaceful man whose conduct was within the 
protection of the first amendment. This cannot be known 
until the cases are tried. Who among the petitioners, if 
any of them, were rioters cannot be known until there has 
been a factual hearing in every case. This is not the sort 
of inquiry which ought to be required as an incident of 
determining removability. If removability does not readily 
appear without a factual inquiry tantamount to a trial on 
the merits, removal should not be allowed.31

It has been consistently held in the Supreme Court that 
the right of removal must appear in advance of trial. The 
right of removal cannot be predicated upon the supposi­
tion that during the course of the trial or the sentencing, a 
protected right would be denied or the defendant would 
find himself unable to enforce it.32

These Supreme Court cases, most of them in the nine­
teenth century, reviewed state court refusals of removal, 
or were decided on a petition for mandamus. Until the 
present there have been no further cases in the Supreme

31 See infra, the type of showing which the Reconstruction Con­
gress thought, necessary for removal, pp. 22-23. Removability here 
is predicated upon factual assertions of innocence which are con­
troverted by the Commonwealth’s charges of guilt of offenses cog­
nizable in the courts of the states.

32 Kentucky v. Powers, 201 U. S. 1; Williams v. Mississippi, 170 
U. S. 213; Murray v. Louisiana, 163 U. S. 101; Smith v. Mississippi, 
162 U. S. 592; Gibson v. Mississippi, 162 U. S. 565; Bush v. Ken­
tucky, 107 U. S. 110; Neal v. Delaware, 103 U. S. 370; Virginia v. 
Rives, 100 U. S. 313; Strauder v. West Virginia, 100 U. S. 303.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



49a

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville

Court because of the change in the practice to make re­
moval effective without state court approval or acquiescence, 
coupled with the statutory prohibition of appeals from 
orders of remand. With the repeal of that provision pro­
hibiting appeals, insofar as civil rights cases are concerned, 
it has become an active field of litigation and the Supreme 
Court soon may be expected to turn its attention to it. Most 
of the lower courts have consistently applied the rule pro­
nounced in the Supreme Court cases and have held that 
the denial or inability must result from a state statute 
or a decision of the highest court of the state.33 * * * * 38

It is not a substantial extension of this rule, but an ap­
plication of it, to hold that, if the facts are undisputed or 
the state’s allegations accepted as true, the case is remov­
able if the Constitution would preclude any conviction.

33 See Steele v. Superior Court of California, 9 Cir., 164 F. 2d 
781; Hull v. Jackson County Circuit Court, 6 Cir., 138 F. 2d 820; 
Maryland v. Kurek, D. Md., 233 F. Supp. 431; Anderson v. 
Tennessee, E. D. Tenn., 228 F. Supp. 887; Levitt & Sons, Inc. v. 
Prince George County Congress of Racial Equality, D. Md., 221 
F. Supp. 541; Alabama ex rel. Flowers v. Robinson, N. D. Ala., 220 
F. Supp. 293; Arkansas v. Howard, E. D. Ark., 218 F. Supp. 626;
City of Birmingham v. Croskey, N. D. Ala., 217 F. Supp. 947; 
Van Newkirk v. District Attorney, E. D. N. Y., 213 F. Supp. 61; 
Petition of Hagewood, E. D. Mich., 200 F. Supp. 140; Rand v. 
Arkansas, W. D. Ark., 191 F. Supp. 20; Hill v. Pennsylvania,
W. D. Pa., 183 F. Supp. 126; Louisiana v. Murphy, W. D. La.,
173 F. Supp. 782; Texas v. Dorris, S. D. Tex., 165 F. Supp. 738; 
North Carolina v. Jackson, M. D. N. C., 135 F. Supp. 682; Bennett 
v. Roberts, W. D. N. Y., 31 F. Supp. 825; California v. Lamson,
N. D. Cal., 12 F. Supp. 813; New Jersey v. Weinberger, D. N. J.,
38 F. 2d 298; White v. Keown, D. Mass., 261 Fed. 814; California v. 
Cheu Fan, N. D. Cal., 42 Fed. 865; Alabama v. Wolffe, M. D. Ala., 
18 Fed. 836; New York v. Galamison, 2 Cir., 342 F. 2d 255, 271 
(dictum). But cf. Cox v. Louisiana, 5 Cir., 348 F. 2d 750; Peacock 
v. City of Greenwood, 5 Cir., 347 F. 2d 679; Rachel v. Georgia, 5 
Cir., 342 F. 2d 336.



50a

This is the conclusion of the Fifth Circuit in two recent 
cases .R em ovab ility  may appear with certainty from 
other circumstances. The principle thus far accepted is 
that removability must appear with some certainty when 
removal is undertaken and be not dependent upon the res­
olution of factual differences that also will determine the 
question of guilt or innocence or upon debatable assump­
tions that state courts will ignore the paramount authority 
of the Constitution.

It is objected that the rule of the Supreme Court cases 
leaves little room for effective removal under 1443(1). This 
is partially true,35 but the rule’s insistence that removal 
may be had only when denial of the right appears with 
clarity and certainty is consistent with the original inten­
tion of the statute. The restriction comes not from judicial 
lack of sympathy with the congressional purpose but from 
congressional revocation of the right of post-judgment 
removal.

As we have seen in Section III of this opinion, the Civil 
Rights Act of 1866 permitted post-judgment as well as 
pretrial removal, and post-judgment removal was very 
much in the mind of Congress when considering the Civil 
Rights Act of 1866.

In his veto message, President Johnson had read the 
removal section very expansively, but that interpretation * 35

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

jl Cox v. Louisiana, supra note 33; Rachel v. Georgia, supra 
note 33.

35 Rachel and Cox, cited in the preceding footnote are recent 
examples of the effectiveness of § 1443(1), but they are of no 
help to the removing defendants here, for the facts are far from 
settled.



51a

was disowned when the Congress was considering passage 
of the bill over the veto. Senator Trumbull,36 the bill’s 
manager, made a speech in which he described the kind of 
showing of discrimination which was requisite for re­
moval.37 He said there would be no pretrial removal even 
in the face of a discriminatory state statute, for it should

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

36 Senator Trumbull was the chairman of the Senate Committee 
on the Judiciary and one of the principal architects of the con­
gressional plan, hotly debated with Lincoln and Johnson, for 
reconstruction of the seceding states. Later, after the Reconstruc­
tion Acts’ transfer of all judicial authority in the seceding states 
to military tribunals was threatened by the Supreme Court’s de­
cision in Ex Parte Milligan, 71 U. S. 2, it was he who undertook 
the representation of the United States in McCardle’s case. 
McCardle, a newspaperman, had been convicted in a military tri­
bunal of sedition because of articles he had published in his news­
paper. Attorney General Stanberry declined to appear for the 
United States because of his announced opinions that the Recon­
struction Acts were unconstitutional. Senator Trumbull was called 
upon to fill the breach. He met the issue head on by objecting that 
the application below had been made in the Circuit Court rather 
than in the District Court. He lost. Ex parte McCardle, 73 U. S. 
318, and the Supreme Court proceeded to hear the case on the 
merits.

Trumbull then succeeded in having the Congress pass an act 
depriving the Supreme Court of appellate jurisdiction in habeas 
corpus cases appealed from the Circuit Courts. Though the im­
peachment proceedings were then underway, Johnson promptly 
vetoed the measure. He thought the Supreme Court should decide 
such constitutional questions. As promptly, Congress overrode his 
veto, and the Supreme Court acquiesced. It held the limitation 
upon its jurisdiction within the power of Congress. Ex parte 
McCardle, 74 U. S. 506. Its opinion on the merits was never 
announced.

Anyone interested in knowing what then happened to McCardle 
may consult Arthur John Keefe’s columns in the May and Novem­
ber, 1964 issues of the American Bar Association Journal, 50 
A. B. A. J. 500, 1093. (There are other references, but those give 
the essentials).

37 Cong. Globe, 39th Cong. 1st Sess. 1759 (April 4, 1866).



52a

not be presumed in advance that the state court would 
apply a state statute which was in conflict with paramount 
federal law. If, in the state courts, the discriminatory 
statute was applied, then there would be a right of removal, 
post-judgment removal, for then the petitioner could show 
denial of his protected right. And if a freedinan sought to 
enforce one of his protected rights in the state court, and 
it was denied him, then he could resort to the federal court. 
Removal would follow actual testing in each case.38

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

38 Aside from a grand look at the historical context and a pene­
trating exploration of the contest between the Congress and the 
White House which opened with Lincoln’s Reconstruction Proc­
lamation of December 8, 1863, which was widened by the answering 
enactment of the Davis Bill and further defined by Lincoln’s 
proclamation of July 8, 1864 in explanation of his disapproval and 
which ended only with Grant’s inauguration, Senator Trumbull’s 
speech is the only really relevant legislative history evident at the 
time the Act was first passed or at the time the presidential veto 
was overridden. What Senator Trumbull said, insofar as here 
pertinent, was:

“ • • • [H ]e is not necessarily discriminated against, because 
there may be a custom in the im m unity discriminating 
against him, nor because a legislature may have passed a 
statute discriminating against him; that statute is o f no 
validity if it comes in conflict with a statute of the United 
States; and it is not to be presumed that any judge of a State 
court would hold that a statute of a State discriminating 
against a person on account of color was valid when there was 
a statute of the United States with which it was in direct con­
flict, and the case would not therefore rise in which a party 
was discriminated against until it was tested, and then if the 
discrimination was held valid he would have a right to remove 
it to a Federal court— or, if undertaking to enforce his right 
in a State court he was denied that right, then he could go 
into the Federal court; but it by no means follows that every 
person would have a right in the first instance to go to the 
Federal court because there was on the statute-book of the 
State a law discriminating against him, the presumption being 
that the judge of the court when he came to act upon the case, 
would, in obedience to the paramount law of the United States, 
hold the State statute to be invalid.”



53a

The rale applied in the Supreme Court is thus a liber­
alization of the original intention of the Congress, for it 
indulges the assumption that a discriminatory state statute 
will be applied in the state court.39 The rale’s insistence 
that the denial of the right he clearly shown, however, even 
though it goes to the extent of requiring an assumption 
that there will be no denial of the right in the absence of 
a discriminatory state statute, decision or something of 
that nature,40 is thoroughly consistent with the original in­
tention of the Civil Rights Act of 1866 and of its sponsors. 
Senator Trumbull was plainly of the opinion that the right 
to remove would not exist unless the impediment had some 
formal state sanction. Mr. Justice Bradley in 1874 ex­
pressed the same view in Texas v. Gaines, Fed. Cas. No. 
13,847, 2 Woods 342, in which it was held that local prej­
udice was not a ground for removal by a Negro charged 
with bigamy. When the Supreme Court was called upon in 
1879 to interpret the statute, its reading was well antici­
pated and entirely consistent with the intention of the 
original act’s chief proponent.

The relative inutility of the statute is the necessary result 
of elimination of the right of post-judgment removal, not 
of judicial emasculation.

The scheme of the Thirty-ninth Congress had consist­
ency. If removability clearly appeared before trial, the 
case could be removed then. If it did not and the trial was 
discriminatory and the state court’s judgment unfair, it

39 Unless the statute predates the constitutional provision Avhich 
invalidates it. Neal v. Delaware, 103 U. S. 370. This may have 
been the situation which Senator Trumbull had in mind.

40 See the text, supra at footnote 34.

Appendix III—Opinion of the Court of Appeals
in Baines v. City of Danville



54a

could be removed after the judgment and retried in the 
United States Circuit Court. A short while later, however, 
it turned to other means to achieve its immediate objec­
tives and a subsequent Congress repealed the most effec­
tive part of the removal provision of the Civil Rights Act 
of 1866.

The Civil Rights Act had been enacted over President 
Johnson’s veto on April 9, 1866. The Thirty-ninth Con­
gress then turned to an expansion and extension of the 
Freedmen’s Bureau Bill. The Bill, finally enacted over 
President Johnson’s veto on July 16, 1866, provided in its 
Section 1441 that in each of the Southern states, until fully 
restored in its relations with the national government and 
fully represented in the Congress, Negroes should have 
equal rights defined in terms closely paralleling those of 
Section 1 of the Civil Rights Act. Those rights were made 
enforceable by Bureau agents with military authority and 
protection and in military tribunals.

There followed a succession of Reconstruction Acts. The 
first of those, finally enacted over the presidential veto on 
March 2, 1867,42 placed the Southern states under martial 
law. Civilian courts could function only if, and to the ex­
tent that, the military commander allowed them. In August 
1867, General Sickles in his Order No. 10 suspended the 
operation of the federal courts in the Carolinas as well as 
that of the courts of those two states.

It thus appears that in the nine years during which the 
removal rights as enacted in 1866 remained intact, they

4114 Stat. 173,176-77.
4214 Stat. 428.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



55a

were largely superseded by more direct enforcement means 
under military authority. There was little opportunity for 
their exercise. They might have become both useful and 
available after the final termination of the Reconstruction 
period in 1876, but, as we have seen, they were radically 
restricted in 1875 by the elimination of the right of post­
judgment removal.

Under these circumstances, the judiciary cannot restore 
what the Congress struck from the statute or construe what 
remains to approximate the congressional intention before 
it struck the most important part of its earlier scheme. The 
Congress, of course, can act again. It can undo what it did 
in 1875; it can reduce the requirements for a showing of 
removability before trial, or it can leave matters as they 
are. The choice must be its, and the choice will inevitably 
involve many considerations of policy in the context of the 
present which are the exclusive province of the Congress.

Before acting definitively, and there certainly was no 
definitive congressional action in the minority suggestion 
in 1964 of judicial reconsideration of the Rives-Powers 
interpretation,43 the Congress would certainly explore in 
depth a number of matters as to which, with its investiga­
tory powers, it has far greater competence than the judi­
ciary. These include an appraisal of the efficiency of the 
present scheme under which state courts are required to 
enforce federally guaranteed rights, with direct review of 
their interpretation and enforcement of such rights in the 
Supreme Court and with rights of collateral review in the 
habeas corpus jurisdiction of the federal courts where the

43 See the ultimate paragraph of Section III, supra, for a dis­
cussion of this.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



56a

adequacy and fairness of the state courts’ fact-finding- 
processes are also open to review. When, and under what 
circumstances, pretrial removal is necessary or appropriate 
for the protection of federally guaranteed rights should he 
considered in the light of alternative procedures, trouble­
some problems of federalism, the capacity of the federal 
courts to discharge added responsibilities, and the means 
by which responsible state action may be most effectively 
encouraged. These are policy considerations for which 
judges may have some competence, but in no case in our 
adversary system can the courts explore them on a review- 
able record with the competence and the thoroughness of 
the Congress.

There are subordinate questions which are much more 
appropriately for the Congress. If the removal jurisdiction 
is to be expanded and federal courts are to try offenses 
against state laws, cases not originally cognizable in the 
federal courts, what law is to govern, who is to prosecute, 
under what law is a convicted defendant to be sentenced 
and to whose institution is he to be committed—these are 
all questions to which there should be a congressional 
answer.

These are the very practical problems posed as long ago 
as Mr. Justice Field’s dissenting opinion in Virginia v. 
Rives. There have been no answers, for congressional revo­
cation of the right of post-judgment removal has substan­
tially avoided the necessity for them. If the removal right 
is now to be greatly enlarged, such questions must be an­
swered. Aside from the fundamental and incontrovertible 
proposition that enlargement of congressional purpose 
must be by the Congress, underlying problems of the de­
sirability of enlargement and the incidental practical prob­

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



57a

lems ought to have careful congressional consideration 
before any change is made.

It is thus idle to speak of judicial implementation of the 
original, unmodified intention of the Thirty-ninth Congress. 
Who can say to what alternative that Congress would have 
resorted had it not made explicit provision for post- 
judgment removal? If it were known, however, it would 
be an irrelevance, for judges cannot ignore the major 
surgery wrought by subsequent Congresses. A  court must 
take a statute in the form in which it was left by the last 
Congress that substantively reshaped it. Otherwise, it 
would arrogate to itself congressional authority.

A  further word needs to be said about the contention 
that the petitioners cannot obtain a fair trial in the Cor­
poration Court for the City of Danville. They do not sug­
gest, of course, any unfairness in Virginia’s Supreme Court 
of Appeals, a Court which showed its courage and faithful­
ness to constitutional principles when, in Harrison v. Day, 
200 Va.. 439, 106 S. E. 2d 636, it struck down Virginia’s 
massive resistance laws which had been enacted in an effort 
to avoid desegregation of its schools. It would appear that 
the requirement of a showing of inability to enforce pro­
tected rights in the courts would require us to view all of 
its courts vertically, and that even a successful showing of 
unfairness in the trial court would not be sufficient unless 
it were also shown that the appellate court was unfair, too, 
or that the unfairness of the trial court was not correctable 
on appeal or avoidable by a change of venue. In Virginia 
v. Rives, 100 U. S. 313, 322, for instance, the court appears 
to have looked at the state courts vertically, saying that 
if the anticipated wrong was done in the state trial court,

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



58a

it may be expected that “ the error will be corrected in a 
superior court.” Moreover, Kentucky v. Powers, 201 U. S. 
1, supplies an emphatic answer. Powers, who had been the 
Republican candidate for the office of Secretary of State 
for Kentucky, had been charged with murder of the Demo­
cratic candidate for Governor. He had been thrice tried 
and thrice convicted, but each time his conviction had been 
reversed by the Kentucky Court of Appeals in four to three 
decisions. Powers charged that the machinery of the trial 
court was in the hands of Democrats, inflamed against him 
because of the killing, and that they had stacked the juries 
with Democrats, systematically excluding Republicans and 
Independents. On each appeal the Court of Appeals held 
that certain rulings of the trial court were unreviewable 
and those decisions became the law of the case binding upon 
the trial court at the fourth trial. Powers had also unsuc­
cessfully sought to have introduced a pardon which had 
been given to him by the Republican Governor of the State, 
and that ruling had been affirmed and was binding as the 
law of the case upon the trial judge who was presiding at 
the fourth trial. If anyone was ever able to show unfair­
ness in advance of the trial, Powers was. Nevertheless, the 
Supreme Court held that the District Court should have 
remanded the case to the state courts, for corrupt or illegal 
acts would furnish a ground for removal only if done in 
accordance with a statute as construed by the highest state 
court. In the absence of such a statute the only remedy 
was in the state courts, subject ultimately to review on 
certiorari by the Supreme Court of the United States.44

44 Now, of course, Powers’ claims, to the extent founded on the 
federal constitution, would be reviewable in the lower federal 
courts on habeas corpus.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



59a

Powers, of course, was able to make a much stronger 
showing than the petitioners here and the Powers decision 
requires the remand of their cases.45

While Powers may seem hard, it is the kind of claim 
which ought not to be made the basis of removal. It would 
require the federal judge to try the state court. When the 
question is what the state court will do in the future, as 
it must be, it is usually incapable of any certain answer. It 
is the kind of inquiry which would be most disruptive of 
federal-state relations and the greatest hindrance to state 
court processes. If there is any element of unfairness in 
the trial subsequently to be conducted in the Corporation 
Court of Danville, it ought to be corrected by Virginia’s 
Supreme Court of Appeals, which readily recognizes its 
responsibilities.

Again, Professor Amsterdam appears to agree that this 
sort of claim ought not to be made the basis of removal.46

The Court of Appeals for the Fifth Circuit has recently 
allowed removals under Section 1443(1) in situations in

45 Prior to 1875, when post-judgment removal was permissible, 
removal could be had after a trial if  the judgment of the trial 
court was discriminatory or if there had been a denial of one of 
the protected rights. The judgment of the trial court was a suffi­
ciently formal state sanction of the discrimination. Exhaustion of 
any right of direct appeal was not a prerequisite to removal. When 
that procedure is unavailable, however, when we are called upon 
in advance of trial to consider a claim of unfairness in the trial 
court, it is not unreasonable to look, as the Supreme Court did in 
Rives and Powers, at the whole state court system. I f  unfairness in 
the state trial court clearly appeared, it ought not warrant removal 
if readily avoidable by a motion for a change of venue or cor­
rectable on appeal. I f a defendant is able to make with clarity and 
certainty a pretrial showing of unfairness in a state trial court, 
he should encounter no difficulty in establishing that unfairness 
after a trial.

46 Amsterdam, supra note 6, at 857-59, 862-63, 911-12.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



60a

which it appeared that under no circumstances could the 
state constitutionally convict the defendants.47 When the 
state statute upon which the prosecution is founded is 
facially unconstitutional, or if the facts are so settled that 
it is clear that the state statute cannot he constitutionally 
applied to the defendants’ conduct, most of the difficulties 
are avoided. Thus in Rachel v. Georgia the prosecutions 
were for trespass in connection with sit-ins occurring be­
fore the Supreme Court’s decision in Hamm v. City of 
Rock Hill, 379 U. S. 306, and in Cox v. Louisiana the effort 
to prosecute the defendant for attempting to do what the 
'Supreme Court had already held he could not constitu­
tionally be convicted of doing was obviously a fruitless and 
unconstitutional harassment. In such cases the only real 
problem is whether or not the petitioner is able to show 
that his rights will be denied or cannot be enforced in the 
state courts. But those cases furnish no basis for our reach­
ing a conclusion of removability here.48

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

47 Cox v. Louisiana, 5 Cir., 348 F. 2d 750; Rachel v. Georgia, 
5 Cir., 342 F. 2d 336; cf. Peacock v. City of Greenwood, 5 Cir., 
347 F. 2d 679.

48 Rachel and Cox are clearly distinguishable because of the ab­
sence in those cases of any factual dispute and the clear showing 
that the Constitution foreclosed a successful prosecution in the 
state court, The opinions in those eases elide the other facet of 
the “ cannot enforce”  problem, however: the sufficiency of a pre­
trial showing that the state court will not enforce the clearly estab­
lished right. See Neal v. Delaware, 100 U. S. 370. One month 
before Rachel, for instance, the Supreme Court of Georgia had 
held in Bolton v. State, 220 Ga. 632, 140 S. E. 2d 866, that sen­
tences imposed upon participants in “ sit-ins” must be vacated. It. 
recognized the paramount authority of Hamm v. City of Rock Hill.

In that situation, as in Cox, since the constitutional immunity 
from prosecution was clearly apparent, it may have been appro­
priate to consider the harassing effect of the pendency o f the prose-



61a

V

The contention that removal may be had under the provi­
sions of 28 U. S. C. A. § 1443(2) need not now detain us 
long. In comparable situations it has been consistently 
rejected in every case in which it has been advanced.49

Relatively early in the history of this country, statutes 
were enacted giving federal officials the right to remove to 
the federal courts state proceedings instituted as a result 
of their official acts. In 1815 a statute50 was enacted provid­
ing for removal of suits and prosecutions “ against any col­
lector, naval officer, surveyor, inspector, or any other 
officer, civil or military, or any other person aiding or 
assisting, agreeable to the provisions of this act, or under 
colour thereof, for anything done . . .  by virtue of this act, 
or under colour thereof.” This was a customs act, and, 
eighteen years later, South Carolina’s resistance to the 
tariff acts provoked another.51 It authorized removal of 
any “ suit or prosecution . . . against any officer of the

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

eution upon the defendants’ exercise of protected rights, though 
here, again, one may suppose that the prosecution might have been 
terminated more readily by a motion to dismiss in the state court 
than by the uncharted route of removal. Consideration of the 
effect of the pendency of the prosecution can be of no assistance, 
however, on the other branch of the problem when the facts are 
unsettled and removability cannot be determined until they are 
resolved.

49 Though not always on precisely the same ground, see Peacock 
v. City of Greenwood, 5 Cir., 347 F. 2d 679; Board of Educ. v. 
City-Wide Comm. For the Integration of Schools, 2 Cir., 342 F. 2d 
284; New York v. Galamison, 2 Cir., 342 F. 2d 255; City of Clarks- 
dale v. Gertge, N. D. Miss., 237 F. Supp. 213; Arkansas v. Howard, 
E. D. A rk , 218 F. Supp. 626.

50 Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198.
51 Act of March 2, 1833, Ch. 57, § 3, 4 Stat. 633.



62a

United States, or other person, for or on account of any act 
done under the revenue laws of the United States, or under 
colour 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 . . . There were 
other revenue acts with removal provisions, though they 
add nothing to the pattern established by the acts of 1815 
and 1833. Federal officials charged with violations of state 
statutes in the exercise of their official duties under federal 
statutes were entitled to remove the case to the federal 
courts. So was one defending a title derived from such a 
customs or revenue officer under the act of 1833. The statu­
tory language explicitly reached him.

It was against this background that the Civil Rights Act 
of 1866 was enacted, in  its “ color of authority” clause it 
authorized the removal of any proceeding against “ any 
officer, civil or military, or other person, for any arrest or 
imprisonment, trespasses, or wrongs done or committed by 
virtue or under 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, . . . .” Its 
reference to the Freedmen’s Bureau Act was appropriate, 
for, as we have noticed, the agents of the Freedmen’s 
Bureau were charged with the duty of enforcement of the 
Civil Rights Act. There was, however, no language com­
parable to that of the Revenue Act of 1833, giving removal 
rights to occupants of “ abandoned” or confiscated lands 
who resorted to self help to defend tlieir possessions. 
Clearly, the “ color of authority” provisions of the Civil 
Rights Act of 1866 were limited to officials engaged in its 
enforcement and to those other persons who assisted them. 
This is apparent not only from the omission of language

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



63a

of earlier statutes in aid of those claiming under official 
grants of estates but, more emphatically, in the concur­
rence of the language in the removal section and in the 
enforcement sections.

As we have observed earlier in Section III, the enforce­
ment provisions of the Civil Bights Act of 1866 authorized 
the commissioners to appoint any number of “ suitable 
persons” to assist those officers, and the “ suitable persons” 
were authorized to serve warrants and make arrests. The 
“ suitable persons” could call upon bystanders to assist 
them and even call out the military forces of the United 
States. In the enforcement sections those unofficial “ suit­
able persons,” and those other civilians whom they were au­
thorized to command, are consistently referred to as “ other 
persons.” Those “ other persons” authorized to make ar­
rests in the name of the United States and to collect their 
fees of five dollars for each arrest are obviously the same 
“ other persons” mentioned in Section 3. The suggested 
ambiguity in the reference in Section 3 to “ other persons” 
vanishes with a look at the enforcement sections.

The enforcement provisions of the Civil Bights Act of 
1866 have been carried into the 1948 Code. Commissioners 
are still authorized to appoint “ suitable persons” to serve 
warrants and make arrests of persons charged with violat­
ing rights initially secured by the Civil Bights Act of 1866, 
and those suitable persons are still authorized to “ call to 
their aid all bystanders or posse comitatus” and the land 
and naval forces of the United States or of the militia.52 
Every such person is still entitled to the five dollar fee 
for each person he arrests.53

52 42 U. S. C. A. § 1989.
53 42 U. S. C. A. § 1991.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



64a

The revisers of the 1948 Code enlarged 28 U. S. C. A. 
1442(a) (1) to include all officers engaged in law enforce­
ment. That enlargement did not make Section 1443(2) 
tautological under the construction that we give to the 
latter section. It protects so many persons whose status 
as officers under Section 1442 (a) (1) would he highly dubi­
ous, to say the least, that it could not reasonably have been 
deleted. While the 1948 revisers’ omissions and changes 
are subject to criticism,54 it was stated that no change in 
meaning was intended, and we find none.

VI

Finally, the petitioners claim that they may remove 
under the “ refusal” clause of 28 U. S. C. A. § 1443(2). 
They say they refused to desist from their demonstrations 
on the ground that it was protected conduct.

Though the First Amendment can hardly be said to com­
mand one to express whatever views he has, this provision 
of the statute is available only to state officers. The refusal 
language was added by amendment in the House with the 
explanation that it was intended to enable state officers 
who refused to enforce discriminatory state laws in conflict 
with Section 1 of the Civil Eights Act of 1866 and who were 
prosecuted in the state courts because of their refusal to 
enforce state law, to remove their proceedings to the 
federal court.55

We conclude that these cases were properly remanded.
Affirmed.

-------------* -------------

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

54 See New York v. Galamison, 2 Cir., 342 F. 2d 255.
55 Cong. Globe, 39th Cong., 1st Session, 1366-67 (March 13, 

1886), 1413 (March 15, 1886).



65a

Sobeloff and J. Spencer Bell, Circuit Judges, dissenting:

The extremely narrow construction which the majority 
gives to the removal statute comports neither with its his­
torical context, nor its present language, nor with the 
spirit of those decisions of the Supreme Court which have 
given new breadth and meaning to the constitutional guar­
anty of equal rights to all our citizens, nor with the intent 
and purposes of the 1964 Civil Rights Act,1 

We would hold these cases removable under paragraph 
(1) of 28 U. S. C. A. § 1443 if the petitioners can satisfy 
the District Court of the truth of their allegations: that
(a) they are unable to enforce their equal racial civil rights 
in the state court (discussed in Part I of this opinion), or
(b) they have been denied these rights by state officials 
prior to trial (discussed in Part III).

I. R emoval U nder Section 1443 (1)— Inability of Civil 
R ights Demonstrators to E nforce R ights at Trial

The petition recites that the injunction and the ordi­
nances under which they were arrested, jailed and prose­
cuted are vague, indefinite and unconstitutional both fa­
cially and as applied. It also alleges that the arrests, even 
without the trials, were preventing the exercise of First 
and Fourteenth Amendment rights by the Negro commu­

1 See language of the House Judiciary Committee Report, U. S. 
Code, Cong. & Adm. News, 88 Cong., vol. 2, p. 2518, explaining 
the amendment to § 1447(d) allowing appeal from remand orders 
in civil rights cases. The report points out that the absence of 
an appeal had been used “by many southern federal judges to 
deny judicial relief for citizens who have been prosecuted in the 
state courts for exercising their rights guaranteed by the Con­
stitution.”

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



66a

nity. Finally, it claims that the wholesale arrests and trials 
were part of a conspiracy of the white power structure 
of Danville to enforce a policy of racial segregation and 
discrimination. The majority in its original opinion2 recog­
nized that the petitioners alleged that they were seeking 
to exercise their First and Fourteenth Amendment rights 
in order to free themselves from official discrimination; 
that among other objectives they were seeking further de­
segregation of the public schools, theatres, and restaurants 
of Danville, the employment of Negroes by the city, and 
their representation on boards and commissions. The opin­
ion conceded that “ [ i]f  Danville discriminated against 
them in employment, of course, Fourteenth Amendment 
rights would be involved * * * .”

The evidence taken in the District Court on the city’s 
motion to remand—however conflicting on the question of 
which side used violence—leaves no doubt that the arrests 
grew out of demonstrations in which the Negro minority 
sought to protest what they believed to be a denial of their 
equal civil rights. It is further alleged, and must be taken 
as true for present purposes, that the arrests and threat­
ened prosecutions were motivated by a desire to intimidate 
the entire Negro community of Danville; the newspaper 
editorials at the time voiced the hope that the Negroes 
would be “ suppressed” and “ put down.” The sweeping in­
junction and complementary ordinance, put into effect 
after the first demonstrations, were allegedly applied to 
this end.

After their removal petitions had been filed in the fed­
eral district court, two of the present petitioners were

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

2 Baines v. City of Danville, 337 F. 2d 579 (4th Cir. 1964).



67a

tried in the Corporation Court of Danville, fined, and sen­
tenced to 45 to 90 days for their participation in the demon­
strations. The conduct of these two trials affords a strik­
ing illustration of the treatment to be expected by these 
petitioners in the state courts. Policemen were stationed 
at every corner of the room; lawyers were searched on en­
tering and leaving the courtroom; and petitioners were 
required to appear in court from day to day for roll call, 
although the prosecutor could have had no expectation of 
trying more than a few of them on any one day. Thus any 
organized protests were effectively silenced and the de­
fendants’ ability to earn a living impaired. Then, all the 
cases were transferred to various courts throughout the 
state, some as far as 250 miles away.

The assumption that these Negroes’ rights could be 
vindicated in the state courts was dramatically under­
mined by a ruling that flatly barred constitutional defenses 
to the charges against the demonstrators. The presiding 
judge announced from the bench, prior to the taking of 
any evidence, that he would not permit any such defense 
to be raised. By stripping appellants of any opportunity 
to show in the record that their conduct was protected from 
state interference, this prohibition shows a clear inability 
to enforce their rights in the local tribunals.

These allegations clearly bring the petitioners within the 
first paragraph of 28 U. S. C. A. § 1443. We agree with the 
rationale of our brethren in the Fifth Circuit in Rachel v. 
Georgia, 345 F. 2d 336 (5th Cir.), cert, granted, 382 U. S. 
808 (Oct. 11, 1965), and Peacock v. City of Greenwood, 347 
F. 2d 679 (5th Cir. 1965). See Note, 51 Va. L. Kev. 950,

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



68a

958-60, 971-72 (1965). In Rachel removal was held neces­
sary in order to protect against discriminatory misuse of 
a facially constitutional statute to deny the petitioners 
their equal rights specifically derived from the 1964 Civil 
Rights Act.3 In Peacock this principle was applied to per­
mit removal where a facially valid statute was assertedly 
used to deny the petitioners rights to equal protection 
specified in the Fourteenth Amendment.4

As the Fifth Circuit correctly points out, the pre-trial 
application of state statutes to suppress demonstrators’ 
equal civil rights distinguishes these cases from Rives v. 
Virginia, 100 U. S. 313 (1880) and Kentucky v. Powers, 
201 U. S. 1 (1906), where the alleged inability to enforce 
rights could not be shown until the trial itself. (See Part 
TV for fuller discussion of this distinction.) Indeed, the 
experience of these petitioners, some of whom have already 
been told that federal constitutional defenses could not be 
raised, presents even more compelling grounds for removal 
than in Peacock.

We turn now to an analysis of the principles underlying 
the removal statute, and the reasoning of the majority 
opinion. * *

3 Act of July 2, 1964, Pub. L. 88-351, 78 Stat. 246.
* To the extent that these demonstrators were seeking' enforce­

ment of rights guaranteed by the Civil Rights Act of 1964, their 
prosecutions would clearly be abated. Hamm v. City of Rock Hill, 
379 U. S. 306 (1965). The present opinion of the majority accepts 
the holding of Rachel that prosecutions for conduct protected by 
the Civil Rights Act are removable to the federal forum. Thus, at 
the very least, there must be a hearing to determine whether any 
of these petitioners are entitled to removal under Rachel, since the 
District Judge made no findings of fact. See 337 F. 2d at 583.

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



69a

II. S cope of P rotected R ights

(a) The Civil Rights Act of 1866

Our brethren argue that the rights to be protected by re­
moval were “ limited” to those specified in section 1 of the 
1866 Civil Rights Act, as contrasted to those guaranteed 
by the later enactment of the Fourteenth Amendment, and 
assume without further analysis that the rights asserted 
by these petitioners were not encompassed within section 
l .5 However, the evidence is overwhelming that from the 
time Congress took the initial step in 1866, it envisaged a 
broad understanding of the protections section 1 afforded 
the Negro. In addition to the right to make and enforce 
contracts, sue, give evidence, etc., the statute gave to all 
persons

“ the same right [to] * * * full and equal benefit of all 
laws and proceedings for the security of person and 
property, as is enjoyed by white citizens, * * * ”

and further provided that such persons

“ shall be subject to like punishment, pains and penal­
ties, and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwithstand­
ing.” Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.

Both supporters and opponents of the measure under­
stood that the civil rights granted in section 1 were to be

5 The majority frame the issue to be whether “ law providing for 
equal civil rights” encompasses “ general First and Fourteenth 
Amendment rights.” (Emphasis added.) But the inquiry is not 
so broad— the issue is only whether that phrase encompasses the 
denial of “ egalitarian civil rights” asserted here.

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



70a

given the broadest possible scope,6 and it was only to dis­
pel any doubts concerning the authority of Congress to 
grant such sweeping rights to the Negro7 that the Four­
teenth Amendment was proposed and submitted to the 
States by the same Congress that enacted section 1 of the

6 See 43 Cong. Globe, 39th Cong., 1st Sess. at 599-60 (remarks 
of Senator Trumbull) ; id. at 1151 (remarks of Representative 
Thayer). In response to a question by Senator McDougall of Cali­
fornia, opposing the bill, Senator Trumbull, manager of the bill 
in the Senate, stated:

“ These I understand to be civil rights, fundamental rights be­
longing to every man as a free man, and which under the 
Constitution as it now exists we have a right to protect every 
man in.” 43 Cong. Globe, 39th Cong., 1st Sess. at 476.

Mr. M cDougall: “Allow me to remark that I think all these 
rights should be conceded. Do I understand that this bill 
does not go further than to give protection to the enjoyment 
of life and liberty and the pursuit of happiness and the pro­
tection of the courts, and to have justice administered to all? 
Do I understand that it is not designed to involve the question 
of political rights?” Ibid.

Mr. Trumbull: “ The bill has nothing to do with the political 
rights or status of parties. It is confined exclusively to their 
civil rights, such rights as should appertain to every free man.” 
Ibid.

The contrast drawn between civil and political rights in this ex­
change highlights the encompassing scope intended for section 1 
in the civil sphere.

7 See 43 Cong. Globe, 39th Cong., 1st Sess. at 474-81, 497-507, 
522-30, 569-78, 594-606 (Senate debates); id. at 1115-25, 1151-62, 
1262-72 (House debates). The opposition argued that the bill 
invaded areas previously reserved to the states, by giving, for 
example,

“ * * * authority over the judicial tribunals in the administra­
tion of law in the states; [and] denying to the states of their 
power of regulation.”  Id. at 478 (remarks of Senator Sauls- 
bury).

And of particular significance to these cases was the expressed 
concern that any time “ after the indictment,” cases might be 
removed to the federal courts. Ibid.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



71a

Civil Rights Act.* 1 * * * * * * 8 9 The enactment of the Equal Protection 
Clause, in language closely paralleling section 1 of the 1866 
statute,® legitimated beyond question Congress’ attempt to 
protect the type of rights granted in the statute, and there 
is no reason to think that the rights contemplated by sec­
tion 1 are of less breadth than those contemplated by the 
Equal Protection Clause.10 Contemporary legislators11 and

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

The proponents of the bill replied that the granting of section
1 rights was authorized by the enabling clause of the Thirteenth
Amendment, and by the general power to grant citizenship to
foreigners. See also Bickel, The Original Understanding and the
Segregation Decision, 69 Harv. L. Rev. 1 (1955) (reprinted in
appendix to Bickel, “ Politics and the Warren Court” (1965)).

8 See Hurd v. Hodge, 334 U. S. 24, 32-33 (1948); Slaughterhouse
cases, 83 U. S. (16 Wall.) 93, 96-97 (1873) (dissenting opinion of 
Field, J.) ; Maslow and Robinson, Civil Rights Legislation and the 
Quest for Equality, 20 U. Chi. L. Rev. 363, 368-69 (1953). The
Joint Resolution submitting the Fourteenth Amendment to the 
states passed the Senate on June 8, 1866, and the House on June 
13, barely two months after the enactment of the 1866 Civil Rights 
Act. 43 Cong. Globe, 39th Cong., 1st Sess. 3042, 3148.

9 The statute gave to all persons
“ the same right * * * [to] full and equal benefit of all laws 
and proceedings for the security of persons and property, as 
is enjoyed by white citizens, * * * ” ,

while the Equal Protection Clause provides:
“ [N ]or shall any State * * * deny to any person within its 
jurisdiction the equal protection of the laws.” U. S. Const. 
Amend. X IV , § 1.

10 In Hurd v. Hodge, supra, n.6, the question was whether sec­
tion 1 of the 1866 Civil Rights Act prohibited enforcement of a 
restrictive covenant. Chief Justice Vinson, for the Court, said 
without dissent:

“ In considering whether judicial enforcement of restrictive 
covenants is the kind of governmental action which the first 
section of the Civil Rights Act of 1866 was intended to pro­
hibit, reference must be made to the scope and purposes of



72a

the Supreme Court11 12 have consistently read the two provi­
sions together, and the Courts of Appeals have all assumed 
that a deprivation of equal protection rights would support 
removal.13

Here the Negroes assert that the rights they were at­
tempting to secure by means of the aborted demonstra­

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

t e  Fourteenth Amendment;  for that statute and the Amend­
ment were closely related both in inception and in the objec­
tives which Congress sought to achieve.

“Both the Civil Rights Act of 1866 and the joint resolution 
which was later adopted as the Fourteenth Amendment were 
passed in the first session of the Thirty-Ninth Congress. Fre­
quent references to the Civil Rights Act are to be found in the 
legislative debates on the adoption of the Amendment. It is 
clear that in many significant respects the statute and the 
Amendment were expressions of the same general congres­
sional policy. Indeed, as the legislative debates reveal, one 
of the primary purposes of many members of Congress in 
supporting the adoption of the Fourteenth Amendment was to 
incorporate the guarantees of the Civil Rights Act of 1866 in 
the organic law of the land. Others supported the adoption of 
the Amendment in order to eliminate doubt as to the con­
stitutional validity of the Civil Rights Act as applied to the 
States.” Id. at 31-33. (Emphasis added.)

11 See Cong. Globe, 42d Cong., 1st Sess., at 568 (remarks of 
Senator Edmunds). Commenting on the purpose of the 1871 Civil 
Rights Act, see infra n.14, Senator Edmunds said

“ it is merely carrying out the principles of the [1866] civil 
rights bill, which has since become a part of the Constitution.”

12 See Hurd v. Hodge, supra n .6 ; Buchanan v. Warley, 245 U. S. 
60, 78-79; Virginia v. Rives, 100 U. S. 313, 319 (1880).

13 See Peacock v. City o f Greenwood, 347 F. 2d 679, 682 (5th 
Cir. 1965) ; Steele v. Superior Court of California, 164 F. 2d 781 
(9th Cir. 1947) ; People v. Galamison, 342 F. 2d 255, 271 (2d Cir. 
1965) (dictum) :

“ There is no possible doubt that § 1443(1) applies to the 
grantees of equal rights under the equal protection clause 
and egalitarian statutes # * * (Friendly, J.)



73a

tions were their “ equal civil rights”—rights to desegre­
gated schools, libraries, etc. They further allege that the 
arrests, threatened arrests, and pending prosecutions were 
not only part of the systematic suppression of these rights 
by the local government and community, but were also, in 
themselves, a deprivation on racial grounds of equal pro­
tection of the law. If substantiated, these allegations would 
clearly establish that petitioners were denied the same 
right to “ equal benefit of all laws and proceedings for the 
security of person * * * as is enjoyed by white persons.” 14 
Such a showing would entitle them to remove under the 
plain words of the original statute.
(b) Subsequent History

The majority traces the subsequent history of the re­
moval provision in support of its narrow view of the class 
of rights protected, but we have already shown that from 
the beginning Congress took a broad view of section 1. 
Thus, while it is true that the 1870 re-enactment of sec­
tion 315 did not specifically add “ constitutional” rights to 
the class of protected rights, this re-enactment was merely 
by reference, and there is no indication that Congress 
meant in any way to limit the scope of the 1866 coverage. 
Similarly, use of the phrase “ rights * * * secured by the

Appendix III—Opinion of the Court of Appeals
in Baines v. City of Danville

14 Act of April 9,1866, ch. 31 § 1, 14 Stat. 27.
15 Act of May 31, 1870, cli. 114, § 16, 16 Stat. 144. This is the 

provision conferring jurisdiction on federal courts for the enforce­
ment of rights protected by the Act. The entire 1866 statute was 
re-enacted, following ratification of the Fourteenth Amendment, 
to insure constitutionality.



74a

Constitution and laws” in the 1871 Civil Rights Act,16 with­
out revision of the removal provisions to include such ex­
panded coverage, does not affect the broad meaning to be 
given the “ equal civil rights” in the 1866 Act. The 1866 
statute covered only egalitarian civil rights, while the 1871 
statute provided a civil remedy encompassing the entire 
range of constitutional guarantees, egalitarian and other­
wise. But insofar as the later statute secured equal pro­
tection rights, the two statutes protect the same class of 
rights. See Monroe v. Pape, 365 U. S. 167 (1961).17

Finally, the majority suggests that use of the generic 
phrase “ laws providing for equal civil rights” in the 1875 
recodification meant only that future “statutory” rights 
could be included among those rights the violation of which

16 Act of April 20, 1871, eh. 99, § 1, 17 Stat. 13:
“Every person who, under color of any statute, ordinance, 
regulation, custom, or usage, of any State or Territory, sub­
jects, or causes to be subjected, any citizen of the United States 
or other person within the jurisdiction thereof to the depriva­
tion of any rights, privileges, or immunities secured by the 
Constitution and laws, shall be liable to the party injured in 
an action at law, suit in equity, or other proper proceeding for 
redress.”

This provision now appears as 42 U. S. C. A. § 1983 (1958).
17 Both statutes were enacted in response to the difficulties faced 

by the newly-emancipated Negro, particularly through the inequal 
enforcement of state laws, see infra n.23 and accompanying text. 
And while the 1871 Act covered a much wider scope of rights,

“ [t]he model for it will be found in the second section of the 
act of April 9, 1866, known as the ‘civil rights act.’ * * * 
This section of this [1871] bill, on the same state of facts 
not only provides a civil remedy for persons whose former 
condition may have been that of slaves, but also to all people 
where, under color of State law, they or any of them may be 
deprived of rights * * * .” Cong. Globe, 42 Cong., 1st Sess. 
App. 68. (Report by Mr. Shellabarger, reporting out the bill 
which became the 1871 Act.) (Emphasis added.)

The second section of the 1866 Act provided a criminal penalty 
against any state official who, acting under color of authority of a

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



75a

would be grounds for removal.18 But the phrase is not so 
limited. It is more reasonable to say that the failure in 
1875 either to refer to the specific recodifications of section 
l 19 or to use the term “ statutes providing for equal civil 
rights” evidences the revisor’s understanding of the broad 
view taken by the 1866 Congress of the rights protected by 
removal. This does not impart a new meaning to the stat­
ute; it simply recognizes the full scope of the original 
provision.20

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

state law, statute, ordinance, regulation or custom, deprived a 
person of any of the rights granted in section 1. See n.25 infra, 
and it was this same set of facts that authorized removal under 
section 3. See infra nn.25-32 and accompanying text.

With respect to denials of equal civil rights, the 1871 Act was 
thus the third leg of a triangle. A person deprived of rights secured 
by section 1 of the 1866 Act could: (a) have the offending official 
subjected to criminal prosecution under section 2 of the 1866 
Act, cf., e.g., Screws v. United States, 325 U. S. 91 (1945) (denial 
of broad due process rights) ; (b) protect the affected rights 
against further intrusions under section 3 of the same Act by 
removal to a federal court, see Peacock v. City of Greenwood, 347 
F. 2d 679 (5th Cir. 1965) (suppression of equal civil rights by 
mass arrests) ; and (c) secure a civil remedy under section 1 of 
the 1871 Act against the offending state official. See, e.g., Dom- 
browski v. Pfister, 381 U. S. 479 (1965) (injunction against con­
tinuing suppression of equal civil rights under color of state law).

18 Use of the term “ laws” in a broad sense to include “ constitu­
tions” as well as “statutes” was not unusual in the Reconstruction 
Congress. Section 2 of the 1866 Civil Rights Act, which established 
the preconditions for a section 3 removal, referred to deprivations 
of rights by any person under color of “ any law, statute, ordinance, 
regulation or custom.” “Laws” in this sense clearly embraces state 
constitutions. When the 1875 revisor came to recodify the various 
provisions of the 1866 Act, it was therefore natural for him to 
employ “ laws” in section 641 in a similarly inclusive sense.

19 Rev. Stat. §§ 1977, 1978 (1875).
20 In fact, if our brethren’s initial assumption of the restricted 

nature of protected rights is accepted, their suggestion that the



76a

III. R emoval U nder Ŝection 1443(1) : D enial of D emon­
strators’ E qual Civil R ights by State Officials 
P rior to T rail

The majority suggests that in 1866 Congress was pri­
marily concerned with posUjudgment removal, and that its 
excision in 1875 is responsible for the present “ inutility” 
of the statute. However, a careful reading of the entire 
1866 Act makes plain that removal was contemplated both 
for an inability to enforce rights at trial, as alleged here 
and discussed in Part I, supra; and also where state offi­
cials have denied the equal civil rights of Negroes before 
their trials. Section 2 of the original statute imposed 
criminal penalties against uany person” who, acting under 
color of authority of any state law, ordinance or custom, 
deprived another person of any right secured by section 1. 
Section 3 further provided that anyone who had been 
denied such a right could, at any time after a prosecution 
was commenced in the state courts, remove the cause to the 
federal court for trial. Thus, Congress anticipated pre­
trial removal whenever a petitioner could show that he had 
been denied his equal civil rights by the actions of any state 
official proceeding under color of law. This portion of our 
opinion examines more closely the affinity between the 
criminal provisions of section 2 and the removal provisions 
of section 3, particularly in clarification of the debates over 
the bill.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

term “ laws” would permit future statutory grants to come within 
the removal clause would attribute to the 1875 revisor an intention 
to expand section 3 beyond its original scope, an intention stead­
fastly denied in the majority opinion.



77a

(a) The Present Statute

Section 1443(1) provides that, after a criminal prosecu­
tion has been commenced in a state court, it may be re­
moved if the defendant is

“ is denied” contemplates a denial of rights at any time, or 
only denials which occur “ in the courts of such State.” The 
clause may be paraphrased in either of the following ways: 

Removal is permissible b y :

(i) any person who is denied [,] or cannot enforce [,] 
in the courts of such State a right under any 
law * * *.

or

(ii) any person who is denied [,] or cannot enforce in 
the courts of such State [,] a right under any 
law * * *.

Interpretation (i) limits removal to something that occurs 
or may occur only at the trial itself, while interpretation 
(ii) contemplates removal at any time after commencement 
of a prosecution, either where the affected person “ is 
denied” a right (before or during the trial), or where he 
“ cannot enforce [the right] in the courts of such State.” 21

21 Much of the difficulty in the interpretation of the statute is 
attributable to a failure to recognize the presence of these alter­
native constructions. As originally proposed by Senator Trumbull, 
the bill protected

“persons Avho 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 a c t 43 Cong. Globe, 
39th Cong., 1st Sess. at 211 (Jan. 4, 1866).

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



78a

As a matter of original statutory interpretation, alterna­
tive (i) renders “ is denied” and “ cannot enforce” tautologi­
cal, for the inability to enforce a right at trial is precisely 
what constitutes its denial. On the other hand, alternative 
(ii) gives substance to both phrases: removal is appro­
priate whenever a protected right has been denied before 
the trial, and where it cannot be enforced at the trial itself. 
Moreover, the overall structure of the original statute and 
its legislative history plainly contemplated removal in both 
situations embraced by interpretation (ii).

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

The identical language, without clarifying punctuation, appears 
in section 3 of the original statute, Act of April 9, 1866, ch. 31, 
§ 3, 14 Stat. 27. In the 1875 revision, it was slightly reworded 
to protect

“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 * * # .” Rev. Stat. § 641 (1875). (Bracketed 
material added in 1875 statute.)

Despite the absence of any clarifying punctuation, the Court stated 
without discussion in Virginia v. Rives, 100 U. S. 313, 321 (1880), 
that “ that act gives the right of removal only to a person ‘who is 
denied, or cannot enforce, in the judicial tribunals of the State 
his equal civil rights.’ ” No explanation is given of the source of 
this punctuation, and it can only be explained by the concentration 
in Rives on the problem of showing a denial of rights which in 
that case was alleged would occur at the trial itself. See infra 
n.40. The additional punctuation supplied by the Court served only 
to illustrate the statutory meaning in the context there discussed, 
not in all cases which might arise under the removal provisions.

Nevertheless, this may explain the assumption made by Pro­
fessor Amsterdam that removal relates only to events or conditions 
in the actual trial itself, rather than to “ denials” of equal civil 
rights occurring before trial. Compare Amsterdam, Criminal Pros­
ecutions Affecting Federally Guaranteed Civil Rights: Federal 
Removal and Habeas Corpus Jurisdiction to Abort State Court 
Trial, 113 U. Pa. L. Rev. 793, 851 (1965) (hereinafter cited as 
A msterdam). See also Note, 51 Va. L. Rev. 950, 952, 971 (1965).



79a

(b) The Original Statute

Congress anticipated heavy resistance to the exercise of 
the rights granted the freedmen, not only from statutes 
which on their face discriminate against the N egro/2 but 
also from state officials acting under cover of facially valid 
state laws,22 23 and the 1866 Civil Rights Act clearly reflected 
this latter concern. Following the broad grant of equal 
rights in section 1, section 2 imposed criminal penalties

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

22 These Avere the so-called “ Black Codes.” See, e.g., 43 Cong. 
Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (remarks of Sen­
ator Trumbull) ; id. at 1151 (March 2, 1866) (remarks of Repre­
sentative Thayer). It is clear from examination of the debates that 
these Codes were not the exclusive targets of the federal legislation; 
they were cited primarily as evidence of the inability of Southern 
Negroes to enforce their rights. See, e.g., id. at 603, 605, 1118, 1160.

23 See particularly Senator Trumbull's speech urging passage of 
the Act over President Johnson’s veto, 43 Cong. Globe, 39th Cong., 
1st Sess. at 1759 (April 4, 1866). See also id. at 1123 (remarks 
of Representative Cook) ; 1151 (remarks of Representative Thayer). 
A  prime example Avas Virginia’s vagrancy law, AAdiich General 
Terry, Commandant of the Virginia Military District, reported 
was being administered in such a way that

“ [i] ts ultimate effect * * * will be to reduce the freedmen to 
a condition of servitude Avorse than that from which they have 
been emancipated— a condition which will be slavery in all 
but its name.” 43 Cong. Globe 1759.

Therefore, Terry ordered that “ no magistrate, civil officer, or other 
person, shall, in any way or manner, apply or attempt to apply the 
provision of said statute to any colored person in his department.” 
Ibid.

And in his discussion of Congress’ authority to subject state 
officials to criminal sanctions under section 2 of the 1866 Act, 
Senator Trumbull adverted time and again to deprivations of civil 
rights by both “ State judges and other officials”  and by “ judges or 
Governors or ministerial officers.”  Id. at 1758, a clear indication 
that Congress was concerned with more than just facial statutory 
denials of equal civil rights, occurring at the trial itself.



80a

against “any person” who, acting under “ color24 of author­
ity of any law, statute, ordinance, regulation or custom,” 
deprived a person of the rights secured by section l .25 
Section 2 thus applied in terms to any state official;26 and 
the deprivation of rights constituting an element of the

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

24 As originally introduced, this portion of the bill referred to 
persons acting under “ cover” of authority; “ cover” was changed 
to “ color” in the final version, with no apparent change in meaning.

25 This is now 18 U. S. C. A. § 242 (1958). Original section 2 pro­
vided :

“Any person who, under color of any law, statute, ordi­
nance, 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 this act, or 
to different punishment, pains or penalties on account of such 
person having at any time been held in a condition 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.”

Originally concerned only with the equal civil rights secured by 
section 1 of the 1866 Act, section 2 was expanded in 1874 to 
impose the same criminal sanctions for deprivations of any “ rights, 
privileges and immunities” secured by the Constitution. See Rev. 
Stat. § 5510 (1875). In 1909, Congress added the requirement that 
such deprivations be made “willfully,”  Act of March 4, 1909, 35 
Stat. 1092, although Senator Trumbull had expressed the view in 
the original debates that there could be no convictions under the 
section without a showing of criminal intent. 43 Cong. Globe, 39th 
Cong., 1st Sess. at 1758. See generally Screws v. United States, 
325 U. S. 91, 98-100 (1945). In all other respects, including the 
reference to “persons” acting “under color of any law,” 18 U. S. C. 
§ 242 is identical to section 2 of the 1866 Act.

26 See, e.g., Williams v. United States, 341 U. S. 97 (1951) 
(special policeman coercing confession) ; Screws v. United States, 
325 U. S. 91 (1945) (sheriff beating arrested Negro). In both 
instances the Supreme Court applied 18 U. S. C. § 242, the successor 
to section 2 of the Civil Rights Act, to penalize illegal activities of 
police officials unrelated to any occurrences in the judicial process 
itself.



81a

section 2 offense could arise both before and during the 
trial.27

A criminal sanction having been provided in section 2 
against the state official who deprived the Negro of his 
rights, section 3 of the statute established the judicial 
machinery for its enforcement. At the same time it opened 
a federal forum in which the person affected could assert 
the rights denied him. First, the district courts were given 
exclusive jurisdiction over the trials of state officials 
charged under section 2,28 Second, those denied their rights 
were permitted to file original suits for their enforcement 
in the federal courts.29 Third, in the language which with

27 Concern was not merely with denial of rights in the court­
room. Congressional preoccupation with the role of state officials 
in the denial of Negroes’ equal civil rights was demonstrated in 
still another way. Congress was aware that state officials who were 
unwilling to join in denying Negroes their equal civil rights might 
subject themselves to the possibility of prosecution in the state 
courts. For the protection of such officials the hill was therefore 
amended in the House to permit any state official to remove to the 
federal court any prosecution brought against him in the state 
court “ for refusing to do any act on the ground that it would be 
inconsistent with [the Civil Rights] act.” 43 Cong. Globe, 39th 
Cong., 1st Sess. 1366 (March 13, 1866); see id. at 1367 (remarks 
of Representative Wilson, House Judiciary Chairman and floor 
manager of the hill). Thus, had any state or local policeman been 
prosecuted for failure to enforce the Danville ordinances against 
these demonstrators, on the grounds that such sweeping arrests 
and prosecutions were effectively denying equal civil rights, his 
case would have been removable to the federal courts.

28“ [T]he district courts * * * shall have, exclusively of the 
courts of the several States, cognizance of all crimes and offences 
committed against this act * * *

29 “ [The district courts shall have cognizance] of all causes, 
civil and criminal, affecting persons 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; * * * .”

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



82a

minor changes is now section 1443(1), Congress provided 
for the situation where rights had been, or would be, denied, 
but prosecutions had already been instituted in the state 
courts:

“ [I ] f  any suit or prosecution, civil or criminal, has been 
or shall be commenced in any state court against any 
such person # * such defendant is to have the right
to remove such cause for trial to the proper district or 
circuit court * * * Act of April 9, 1866, ch. 31, § 3, 
14 Stat. 27.

The phrase “ any such person” refers back to the “ persons 
affected” in the second part of section 3—those who could 
have brought an original action to enforce the rights de­
nied them; and this “ denial” in turn refers to a denial by 
some state officer, either a judge or some other state official, 
who had acted “ under color of authority of a state law, 
statute, ordinance, regulation or custom.”

The denial of rights, to support removal after commence­
ment of proceedings, was not limited to denials at the trial 
itself. Congress had two purposes in mind. It not only 
penalized the state officials who deprived a man of his 
rights; it sought at the same time to protect such affected 
person by giving him a federal forum for the trial of the 
matter in which those rights were involved.30 In order to 
remove under section 3 of the Act, it was necessary only to 
show the deprivation of some “ equal civil rights,” protected

30 See note 17, supra, for discussion of the civil remedy against 
an offending state official, added in 1871 as the third leg of this 
triangle.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



83a

by section 1 of the Act, by any person acting under color 
of state law.31

This interrelation between sections 2 and 3 of the orig­
inal statute bears emphasis. Congress32 and the President33 
both understood that the conditions for section 3 jurisdic­
tion, including removal, were the same as those which could 
subject “ any person acting under color of [state] laws, 
statutes, ordinances or customs” to liability under section 
2. If a Negro’s rights were denied by the actions of such 
state officer, the aggrieved party was permitted to have 
vindication in the federal court; either by tiling an original 
claim or, if a prosecution had already been commenced 
against him, by removing the case to the federal forum.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

31 Nevertheless, the statute did not contemplate wholesale removal 
of all cases alleging denials of any equal civil right. In contrast 
to the broad class of rights subsequently protected by the criminal 
provisions of the Act of 1874, now 18 U. S. C. A. § 242 (1958), and 
the 1871 civil remedy against the offending state official, now 42 
U. S. C. A. § 1983 (1958), Congress specifically qualified the re­
moval rights in section 1 of the 1866 statute by the phrase “as 
enjoyed by white persons.” The suggestion that section 1443(1) 
might permit greatly expanded removal is thus unfounded: the 
statute applies only to deprivations, under color of law, of equal 
racial civil rights. Compare A msterdam, 874.

32 See Senator Trumbull’s analysis of the two sections at 43 Cong. 
Globe, 39th Cong., 1st Sess. 1758-59 (April 4, 1866). In the House 
the point was made most clearly by Representative Kerr, who 
opposed the bill:

“Viewing [section 2] and the first section of the bill together, 
we learn that the proposed statute will be both remedial and 
penal in its character. It purposes to protect certain rights 
and to punish for the failure to protect them.” Id. at 1270.

33 Id. at 1680; see n.35, infra.



84a

When Congress authorized removal of causes “ affecting 
persons 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,” the use of the disjunctive “ or” between “ are de­
nied” and “ cannot enforce” focused on two separate stages 
at which rights might be affected: before trial, when the 
rights were denied; and at the trial, where those rights 
could not be enforced. Thus, the statute clearly covers the 
allegations in these petitions that officials acting under 
color of authority of state statutes, ordinances and injunc­
tions have suppressed appellants’ equal civil rights by 
mass arrests and threatened prosecutions. If this be shown 
at their hearing, the cases are removable.

(c) The Johnson-Trumbull Debate

In his message accompanying the veto of the 1866 Civil 
Rights Act, President Johnson expressed concern that the 
jurisdictional provisions of section 3 would divest the state 
courts “ not only of jurisdiction of the particular case where 
a party is discriminated against, but of all cases affecting 
him or which might affect him.” 34 It was in reply to this

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

34 See 43 Cong. Globe, 39th Cong., 1st Sess. at 1759 (April 4, 
1866). This was Senator TrumbuH’s characterization of President 
Johnson’s attack on the statute.

In reading the veto message, id. at 1680, it is important to 
realize that the President’s view of section 3’s coverage depended 
on his concept of the type of state officers who might be subject 
to criminal liability under section 2. Johnson feared that the 
bill would divest the state judiciary of discretion to interpret and



85a

contention that Senator Trumbull employed the language 
quoted in part by the majority in support of its restricted

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

apply state laws; thus his statement that the measure could subject 
to liability

“ judges of the State courts who should render judgments in 
antagonism with (the bill’s) terms; and * * * marshals and 
sheriffs, who should, as ministerial officers, execute processes, 
sanctioned by state laws and issued by State judges, in execu­
tion of their judgments.” Ibid.

Trumbull replied that while state judges were indeed among those 
who might be affected by section 2, no state official would be subject 
to its penalties unless he had acted with criminal intent, see id. 
at 1758; and the Senator did not address himself to the types of 
state officials involved. However, the courts have consistently given 
this provision its natural meaning, as applying to any state official 
before, during or after the trial. Supra, n.27.

To support the construction of section 2 as applicable only to 
state officials acting in a judicial or post-judicial setting, the Presi­
dent read section 3 in a similar vein:

“ The construction which I have given to the second section 
[which has since been rejected by the courts] is strengthened 
by this third section, for it makes clear what kind of denial 
or deprivation of the rights secured by the first section was 
in contemplation. It is a denial or deprivation of such rights 
in the courts or judicial tribunals of the State. It stands, 
therefore, clear of doubt that the offence and the penalties 
provided in the second section are intended for the State 
judge, # 43 Cong. Globe, 39th Cong., 1st Sess. at 1680.
(Bracketed words supplied.)

Since the President was concerned with the effect of the bill on 
state courts, it was natural to emphasize its application to the 
judiciary; but this was not its only application. The subsequent 
broad reading of the re-enactments of section 2 of the 1866 Act 
demonstrates that the two provisions, §§ 2 and 3, were intended to 
apply to all instances of deprivations of equal civil rights by any 
person acting under color of state law.



86a

view of pre-trial removal.35 He first pointed out that a state 
official could not be liable under section 2 (present 18 
U. S. C. § 242) unless he had actually committed some act

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

35 See note 38 and accompanying text of the majority opinion. 
The complete speech, insofar as it discussed section 3, was as 
follow s:

“ The President objects to the third section of the bill that it 
gives the district courts exclusive jurisdiction of all crimes 
and offenses committed against the act. Well, sir, that is no 
new thing. The United States courts have always had juris­
diction of crimes and offenses committed against United States 
laws. But it further, he insists, gives jurisdiction to all cases 
affecting persons discriminated against, as provided in the 
first and second sections of the bill; and by a strained con­
struction the President seeks to divest State courts, not only of 
jurisdiction of the particular case where a party is discrim­
inated against, but of all cases affecting him or which might 
affect him. This is not the meaning of the section. I have 
already shown, in commenting on the second section of the 
bill, that no person is liable to its penalties except the one 
who does an act which is made penal; that is, deprives another 
of some right that he is entitled to, or subjects him to some 
punishment that he ought not to bear.

“ So, in reference to this third section, the jurisdiction is 
given to the Federal courts of a ease affecting the person that 
is discriminated against. Now, he is not necessarily discrim­
inated against, because there may be a custom in the com­
munity discriminating against him, nor because a legislature 
may have passed a statute discriminating against him; that 
statute is o f no validity if it comes in conflict with a statute 
of the United States; and it is not to be presumed that any 
judge of a State court would hold that a statute of a State 
discriminating against a person on account of color was valid 
when there was a statute of the United States with which it 
was in direct conflict, and the case would not therefore rise 
in which a party was discriminated against until it was tested, 
and then if the discrimination was held valid he would have 
a right to remove it to a Federal court— or, if undertaking to 
enforce his right in a State court he was denied that right, 
then he could go into the Federal court; but it by no means 
follows that every person would have a right in the first 
instance to go to the Federal court because there was on the 
statute book of the State a law discriminating against him,



87a

in deprivation of a person’s equal civil rights. Conversely, 
the federal jurisdiction could attach only after the statute 
or the custom was actually applied to the complaining 
party, through the action of some state official. Since Presi­
dent Johnson had expressed concern about the bill’s effect 
on the state judiciary, Senator Trumbull illustrated his 
point with the example of the unconstitutional state statute 
which, until applied by a judge to deny enforcement of 
rights, could not be said to have “affected” the defendant. 
Similarly, the mere existence of a local custom of dis­
crimination would not support federal jurisdiction until it 
was applied against the party.36

Of course, since the main point under discussion was the 
possible criminal liability of a state judge arising from the 
application of state law, the Senator’s statement that there

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

the presumption being that the judge of the court, when he 
came to act upon the case, would, in obedience to the para­
mount law of the United States, hold the State statute to be 
invalid.”  43 Cong. Globe, 39th Cong., 1st Sess. at 1759 (April 
4, 1866).

36 Section 3 also provided original federal jurisdiction for the 
assertion of rights denied by the actions of state officials, note 29, 
supra, but unless this were limited to persons who had actually been 
affected by a denial, it would have been possible for anyone to file 
such original action on a bare allegation of the existence of a dis­
criminatory custom. This was clearly part of Johnson’s concern; 
a concern answered by Trumbull’s requirement that the person 
show a causal relation between the discriminatory statute or custom 
and the right sought to be enforced.

And as the majority suggests in its footnote 39, Senator Trum­
bull may only have been referring to a case where the state statutes 
predated the 1866 Act, which would be presumed to be a nullity 
under the supremacy clause. See Neal v. Delaware, 103 U. S. 370 
(1881). Under this view, pre-trial removal would be possible by 
a showing of state action under any state law which, after 1866, was 
either enacted or applied in deprivation of section 1 rights.



88a

would be no ground for removal until the statute was tested 
referred only to the in-court application of such a statute 
by the judge.37 The Senator’s comment, quoted by our 
brethren, is not inconsistent with the pattern of the statute 
as a whole, for until the judge applied a state statute he 
could not bring into operation either section 2 or section 3. 
The Senator did not say, as the majority would infer, that 
these sections could not be brought into play by the action 
of other officials, such as sheriffs and policemen, who might 
deny equal civil rights prior to the court proceedings.38

IV. T he R ives-P owers D octrine

We may agree with the majority that the Supreme 
Court’s indulgence of the presumption that a facially un­
constitutional state statute will be applied at the trial was a 
liberal construction of the 1866 Act, but it does not follow 
that this is the only situation in which removal was con­
templated. In all the cases denying removal in the late 19th 
Century, the complaint alleged some defect in the trial pro­
ceeding itself, arising from the anticipated application of a 
statute.39 Until the petitioner was actually tried, therefore,

37 Compare Texas v. Gaines, Fed. Cas. No. 13,847, 2 Woods 342 
(1874), where Justice Bradley denied a removal petition contain­
ing only general averments of local prejudice; with no specification 
of how the petitioner had been affected at the time of removal.

38 The statute contemplated removal “ for trial”  at any time 
“ after the commencement of proceedings.” These phrases are ren­
dered meaningless by an interpretation that prohibits removal at 
any time prior to trial.

39 See, e.g., Kentucky v. Powers, 201 U. S. 1 (1906); Bush v. 
Kentucky, 107 U. S. 110 (1882) ; Neal v. Delaware, 103 U. S. 370 
(1881) ; Virginia v. Rives, 100 U. S. 313 (1880).

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



89a

he could not be said to have been “ affected” by the illegal 
actions of “ any person acting under color of any law, stat­
ute, ordinance, regulation or custom.” 40

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

40 This was clearly the concern of the Court in the pivotal case 
of Virginia v. Rives, 100 U. S. 313 (1880). In their removal peti­
tions filed before trial, petitioners had alleged that their right to 
equal protection of the laws would be denied in their state trials 
because of systematic exclusion of Negroes from the jury. The 
Court pointed out that the 1875 version of the removal statute 
anticipated only pre-trial removal, id. at 319,

“ [b]ut the violation of the constitutional provisions, when made 
by the judicial tribunals of a State, may be, and generally 
will be, after the trial has commenced.” Ibid. (Emphasis 
added.)

Thus, a defendant would not be able to affirm until at or after the 
trial itself that the equal protection of the laws would not be 
extended to him, and

“ [i]t  is obvious, therefore, that to such a case— that is, a 
judicial infraction of the constitutional inhibitions, after trial 
or final hearing has commenced— see. 641 has no applicability. 
It was not intended to reach such eases.” Ibid. (Emphasis 
added.)

Consequently, with respect to denials of rights which would not 
be manifested until the trial, the only way in which removal could 
be invoked would be by showing that the state had already acted 
to deny these rights through specific legislation affecting the pend­
ing trial. Such legislation alone, in the Rives view, would support 
an affirmation of “ inability to enforce” rights in the state court. 
Id. at 321.

The particular factual setting of Rives— claims of prospective 
denial of equal rights in the state court— explains the Court’s 
later dictum that the act

“gives the right of removal only to a person ‘who is denied [,] 
or cannot enforce [,] in the judicial tribunals of the State 
his equal civil rights.’ ” Ibid. -(Brackets added; emphasis in 
original.)

Since the defendants had relied on claimed denials that would arise, 
if at all, in the courts of the state, the punctuation added to the 
Court’s quoted excerpt from the 1875 Act indicates no more than



90a

These cases clearly have no application where the denial 
of equal civil rights on which removal is based on assertions 
relating, not to some future stage of the proceedings, but 
to the very arrests and prosecutions which give rise to 
those proceedings. In our concern with the fate of the 105 
defendants in the pending prosecutions, we note the in­
timidating effect of wholesale arrests and threatened ar­
rests and prosecutions on the good faith efforts of all the 
demonstrators to secure equal civil rights for the Negro 
community of Danville. This feature sets the case apart 
from Rives and Powers heavily relied on by the majority. 
To borrow a phrase from the later case of Douglas v. City 
of Jeanette, 319 U. S. 157, 164 (1943), Powers was “ [not] 
threatened with any injury other than that incidental to 
every criminal proceeding brought lawfully and in good 
faith.” Powers presented no problem of the protection of 
civil rights against erosion by the very pendency of the 
prosecution. The answer given Powers, namely, that ulti­
mately his rights might be fully vindicated in the Supreme 
Court of the United States, is no answer to these petitioners 
and the Negro community of Danville. The suppression of 
their freedom of speech and their right of protest in the 
endeavor to obtain equality of treatment is irremediable.41

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

an emphasis on the particular allegations involved in the case. 
The Court did not purport to deal with the case where the denial 
of rights itself— not the evidence of a prospective denial— occurred 
prior to trial; its earlier emphasis on the elimination o f post­
judgment removal, and the availability of pre-trial removal, clearly 
contemplates removal for denials other than those arising in the 
courts.

41 “ This harassment is endemic to the popular, localized, politics- 
dominated state criminal administration. It is worked, for the most



91a

In Dombrowski v. Pfister, 380 U. S. 479 (1965), a statute 
was attacked as void on its face and also under 42 U. S. C. 
§ 1983 as it was being applied to discourage constitution­
ally protected activities. Answering the contention that the 
state court should first pass on these claims, the Court em­
phasized :

“ But the allegations in this complaint depict a 
situation in which defense of the State’s criminal prose­
cution will not assure adequate vindication of con­
stitutional rights. They suggest that a substantial loss 
or impairment of freedoms of expression will occur if 
appellants must await the state court’s disposition and 
ultimate review in this Court of any adverse deter­
mination. These allegations, if true, clearly show 
irreparable injury.

“A  criminal prosecution under a statute regulating 
expression usually involves imponderables and con­
tingencies that themselves may inhibit the full exercise 
of First Amendment freedoms. See, e.g., Smith v. 
California, 361 U. S. 147 [1959]. When the statutes 
also have an overbroad sweep, as is here alleged, the 
hazard of loss or substantial impairment of those pre­
cious rights may be critical. For in such cases, the 
statutes lend themselves too readily to denial of those 
rights. The assumption that defense of a criminal 
prosecution will generally assure ample vindication of

part, not by final judgment of conviction but by mesne process. It 
can be stopped only by a federal anticipatory jurisdiction as broad 
as the evil itself.”  A msterdam, 909-10.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



92a

constitutional rights is unfounded in such cases. See 
Baggett v. Bullitt, [377 U.S.] at 379.” Id. at 485-86.

Moreover, Dombrowski sanctioned an injunction, the 
effect of which was to terminate all prosecutions in the state 
court—there could be none in the federal court—while here 
removal would merely substitute a federal forum for the 
trial of the criminal prosecutions.42

Prior to Dombrowski the use of federal injunctions to 
stay state court proceedings was severely inhibited by the 
abstention doctrine.43 The parallel is obvious between that 
doctrine and the Bives-Powers insistence that federal con­
stitutional rights be first litigated in state courts. Both 
restrictions rest on the assumption that federal constitu­
tional rights will be vindicated by the states, or if not, then 
the Supreme Court will be in a position eventually to give 
full effect to those rights. In carving out an exception to

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

42 We are advertent to the affirmance by the Supreme Court of 
Wells v. Hand, 238 F. Supp. 779 (M. D. Ga. 1965), sub nom. Wells 
v. Reynolds, 34 U. S. L. Week 3131 (Oct. 18, 1965), where an 
injunction against a state prosecution was denied; but that case 
is different from Dombrowski, and from the instant case, which 
seeks only removal. In Wells the court found after plenary hearing 
that there was no denial of the plaintiffs’ civil rights, or any 
scheme to arrest for the purpose of depriving them or others of 
any constitutional rights, or any misuse o f the criminal process, 
or any reason to believe that they could not receive a fair trial 
in the state court. To the contrary, the petition in this case, as we 
show, alleges all of these grounds for removal.

43 See, e.g., Harrison v. NAACP, 360 U. S. 167 (1957) ; Railroad 
Comm’n of Texas v. Pullman Co., 312 U. S. 496 (1941); cases cited 
in W right, F ederal Courts, 170 n.6 (1963). See generally 1 
Barron & H oltzoff, Federal Practice & Procedure (Wright ed.) 
§ 64. But cf. McNeese v. Board of Education, 373 U. S. 668 (1963).



93a

the strict application of the abstention doctrine, Dombrow- 
ski recognizes a set of circumstances in which the assump­
tion underlying both abstention and iHives-Bowers is with­
out validity, as where “ [t]he chilling effect upon the 
exercise of First Amendment rights may derive from the 
fact of the prosecution, unaffected by the prospects of its 
success or failure.” 380 U. S. at 487. Cf. United States v. 
Woods, 295 F. 2d 772, 781 n.9 (5th Cir. 1961). Equally 
without validity is the underlying assumption in the pres­
ent removal cases, for “ ‘ [t]he threat of sanctions may 
deter [the effective enforcement of rights] almost as 
potently as the actual application of sanctions. * * * ’ 
NAACP  v. Button, 371 U. S. 415, 433.” Quoted at 380 U. S. 
479,486.44

It was on this principle that our court in Jordan v. 
Hutcheson, 323 F. 2d 597 (4th Cir. 1963), authorized an in­
junction against a Virginia legislative committee which al­
legedly used its powers to deny Negro attorneys their con­
stitutional rights.

In none of the lower court cases cited by the majority in 
support of its restrictive reading of section 1443(1) was 
removal sought in order to avoid the destruction of con­
stitutional rights resulting from the actual arrests, threat­
ened arrests, and pending prosecutions. See, e.g., Steele 
v. Superior Court of California, 164 F. 2d 781 (9th Cir. 
1948) (complaint that alleged illegally-seized evidence

44 Judicial eradication of this common underlying assumption is 
even more significant in light of the close relation between the 
original injunction provisions, Act of 1871, and the original re­
moval provisions. See note 17, supra, and accompanying text.

Appendix III—Opinion of the Court of Appeals
in Baines v. City of Danville



94a

would be introduced against petitioner at his tria l); Hull 
v. Jackson Cou/uty Circuit Court, 138 F. 2d 820 (6th Cir. 
1943) (petitioner’s claim that removal automatically ousted 
state court of jurisdiction rejected under pre-1948 provi­
sions). And People v. Galamison, 342 F. 2d 255, 271 (2d 
Cir. 1965) (dictum), while noting the restrictive Rives- 
Powers interpretations of 1443(1), acknowledged the con­
gressional expectation that those interpretations would be 
re-examined by the courts.

The majority notes the Fifth Circuit’s recognition of the 
efficacy of 1443(1) in civil rights cases, but attempts to dis­
tinguish only Rachel v. Georgia, supra, and Cox v. Louisi­
ana, 348 F. 2d 750 (5th Cir. 1965). Rachel is distinguished 
on the ground that it involved sit-ins—conduct which the 
Supreme Court had declared protected under the Civil 
Rights Act of 1964; Cox on the ground that the defendant 
was being prosecuted for conduct which the Supreme Court 
had already declared to be no proper basis for prosecu­
tion. Notably, however, the majority does not undertake 
to distinguish Peacock v. City of Greenwood, 347 F. 2d 679 
(5th Cir. 1965), which on its facts precisely parallels the 
present case. There the Fifth Circuit applied section 
1443(1) despite the fact that the conduct was alleged to 
be protected only under the Equal Protection Clause, not 
by any specific statute or Supreme Court decision. In so 
doing, that circuit, speaking through Judge Griffin Bell, 
who had also sat in Rachel, reaffirmed the broad interpreta­
tion of section 1443(1) and rejected the narrow construc­
tion applied by the majority here.

Appendix 111— Opinion of the Court of Appeals
in Baines v. City of Danville



95a

V . “ V ertical U nenforceability”

Under 1443(1) the denial of, or inability to enforce, pro­
tected rights must appear in advance of the trial, but our 
colleagues would require these petitioners to show that 
they would labor under a similar inability in the state ap­
pellate courts.45 True, the present section 1443(1) refers 
to unenforceability in “ the courts of the state,” but it is 
clear from the history of the statute that the 1866 Con­
gress did not mean to require a showing of “ inability to 
enforce” in all the courts of the state. The original provi­
sion, section 3 of the 1866 Act, allowed removal to persons 
“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.” 
(Emphasis added.) If the 1875 statute retained this lan­
guage and eliminated post-judgment removal intentionally 
it must have envisioned other causes for removal than 
facially unconstitutional state statutes.

We think the majority’s construction ignores the whole 
thrust of the legislation, which was to protect the freed- 
man from the denial of his rights by the use of state power 
—whether statutory or administrative. The language of 
the 1866 Act permitted removal “ at the time of entering 
his appearance in such court * * * or after final judgment,” 
and in the debates preceding passage of the 1866 Act, the 
concern of Congress was directed not so much to state

45 Insofar as removal is authorized solely by the denial of rights 
before trial, the question of vertical enforceability is clearly mooted; 
once a right has been denied, the statute contemplates removal 
independent of what may occur in the courtroom.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



96a

statutes unconstitutional on their face, as to the denial of 
equal protection of the law within local communities.46 
Moreover, since removal under 1443(1) is predicated on a 
showing of discriminatory application of facially constitu­
tional statutes,47 the delay incident to appeals through the 
state appellate process would effectively destroy the orig­
inal purpose of the statute. It has been well said, ‘ ‘litiga­
tion is not a meaningful avenue to the enjoyment of federal 
rights,” 48 and common observation confirms the difficulties 
inherent in the effort to correct through the state appellate 
process abuses occurring at the trial level.49

Perhaps the most effective answer to the majority’s re­
quirement of a showing of “ vertical” unfairness lies in the 
practicalities of framing a record. Assuming the disposi­
tion of state appellate courts to enforce federal constitu­
tional rights in civil rights cases, still the determination of 
the facts on which cases will ultimately turn is within the 
ambit of the trial court. Abuses occurring at that level

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

46 In the principal speech urging passage of the 1866 Act over 
President Andrew Johnson’s veto, Senator Trumbull pointed out 
that “ in some communities in the South a custom prevails by which 
different punishment is inflicted upon the blacks from that meted 
out to whites for the same offense.”  Cong. Globe, 39th Cong., 1st 
Sess. 1758 (April 4, 1866). (Emphasis added.) Recent history indi­
cates that 100 years have not entirely eliminated these local 
customs.

47 See Peacock v. City of Greenwood, supra, and our discussion 
of the 1964 Congress’ view of the proper interpretation of 1443(1), 
infra, Part VII.

48 Lusky, “Racial Discrimination and The Federal L aw : A Prob­
lem in Nullification,” 63 Colum. L. Rev. 1163, 1182 (1963).

49 For a striking portrayal see A msterdam, 113 U. Pa. L. Rev. at 
796-99.



97a

are largely uncorrectible on appeal. Evidence may be ex­
cluded as irrelevant; cross-examination may be cut o f f ; 
and witnesses may be intimidated in a coercive atmosphere. 
In such circumstances direct review of the state trial courts 
is no guarantee that constitutional rights will be effectively 
protected.50 This very case provides an extreme example: 
the presiding judge who refused to entertain federal con­
stitutional questions would hardly facilitate the prepara­
tion of a suitable record for the review of federal claims 
(see Part I).

VI. N ature of the R emoval H earing

It is suggested by the majority that the hearing on 
removability would be equivalent to a hearing on the 
merits, and that this is not the sort of inquiry which should 
be indulged as an incident of removal, since the cause for 
the removal must appear in advance of the trial. The short 
answer is that since Congress has authorized removal on 
a pre-trial showing of a denial of, or inability to enforce, 
equal civil rights, under color of state law, it is immaterial 
that such inquiry may involve some of the same questions 
that will arise in the trial of the merits. Inescapably the 
District Court must consider the entire atmosphere and 
consequences of the arrests and pending prosecutions.

Moreover, a determination that these cases are properly 
subject to removal does not absolve any defendant who has

50 In the analogous area of federal habeas corpus, the Supreme 
Court has emphasized the importance of the record formulation 
in litigation over constitutional claims. See Fay v. Noia, 3/2 U. S. 
391 (1963); Townsend v. Sain, 372 U. S. 293, 312 (1963).

Appendix III—Opinion of the Court of Appeals
in Baines v. City of Danville



98a

violated the law. The District Court must still consider 
each case on its merits to determine whether the individual 
conduct of any of the demonstrators exceeded proper 
bounds. The preliminary decision on removability merely 
determines the forum of the trial. This is precisely the 
congressional design—to afford a fair trial in the federal 
courts if it is shown that the defendants have been denied 
their equal civil rights by the actions of state officials under 
color of local laws, or that these rights cannot be enforced 
in the state courts. These petitions show on their face 
that both conditions are satisfied.

VII. T he N ational Concern T oday

Completely ignored in the majority opinion are the 
broader considerations unfolded by recent events and ex­
pounded in the latest decisions of the Supreme Court. In 
the full century since the Civil War, Congress has enacted 
ten civil rights statutes, three of them within the past ten 
years.51 The national purpose, as declared by Congress and 
the Court, has been made manifest. It is to make freedom 
a reality for the Negro, to secure him against the destruc­
tion of his most precious constitutional rights, and gen­
erally to permit him to enjoy the guarantees of citizenship 
equally with members of the white race. Nothing compels 
the continuance of a narrow legalistic interpretation of the 
removal provision, a statute which forms an indispensable 
link in the congressional plan to effectuate equal rights. It 
is stultifying to the recently enacted section 901, permitting

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

51 See Civil Eights Acts of 1964, Pub. L. 88-352, 78 Stat. 241; 
1960, Pub. L. 86-449, 74 Stat. 90; 1957, Pub. L. 85-315, 71 Stat. 637.



99a

appellate review of remand orders, to persist in the devi­
talizing constriction of section 1443. Legislating a right of 
appeal would be of little worth if Congress did not mean 
to give section 1443 new force.

The authors of section 901 of the 1964 Civil Rights Act 
disavowed styptic interpretations of 1443(1). Senator 
Humphrey, the floor manager of the Civil Rights bill, noted 
the apparent limitations imposed by the Rives-Powers 
doctrine, and added the significant comment that

“ the real problem at present is not a statute which is 
on its face unconstitutional; it is the unconstitutional 
application of a statute. When a state statute has been 
unconstitutionally applied, most Federal District 
Judges presently believe themselves bound by these 
old decisions * * * . Enactment of [section 901] will 
give the appellate courts an opportunity to re-examine 
the question.” 110 Cong. Rec. 6551 (1964). (Emphasis 
added.)

The point was put even more strongly by Senator Dodd, 
who had primary responsibility in the Senate for the en­
actment of section 901, see id. at 6953. In his words,

“ An examination of the legislative history of the 
act of 1866 * # * and of the apparent Congressional 
purpose clearly suggests that these old interpretations 
are erroneous. * * *

“ Accordingly the removal statute, intended by Con­
gress to be * * * one of the great bulwarks of equality, 
is of little or no value today.” Id. at 6955.

Appendix III—-Opinion of the Court of Appeals
in Baines v. City of Danville



100a

It was precisely for the purpose of correcting the unwar­
ranted interpretation of 1443 that section 901 was enacted, 
since under its provisions, again in Senator Dodd’s words, 
“ the appellate courts will be able to consider what the 
removal statute means and what Congress intended when 
it enacted the statute.” Ibid. He observed:

“ In particular, I think cases to be tried in state courts 
in communities where there is a pervasive hostility to 
civil rights, and cases involving efforts to use the court 
process as a means of intimidation, ought to be remov­
able under this section [1443].” Ibid. (Emphasis 
added).

This is precisely the distinguishing feature stressed by the 
Fifth Circuit in Peacock.52

Thus, it is plain that in enacting section 901, it was the 
congressional purpose that the Rives-Powers interpreta­
tion, if not explicitly rejected by the appellate courts, 
should nevertheless not stand in the way of removal in

52 In the House a similar view was expressed by Representative 
Kastenmeir, manager of section 901. He stated that one of the 
prime purposes of the section was “ that the Court [s] of appeals be 
authorized to reinterpret these [removal] laws.” 110 Cong. Rec. 
2770 (1964). He anticipated that

“under reinterpretation of section 1443 cases involving State 
criminal prosecution brought to intimidate the petitioner, 
[and] cases involving such community hostility that a fair 
trial in the State or local courts is unlikely or impossible * * * 
might now well be construed to be within the scope of said 
section. I f so, once again we will breathe life into the Civil 
Rights Act of 1866 and give meaning to the purpose intended.” 
Ibid.

For further discussion, see A msterdam, 113 U. Pa. L. Rev. at 859.

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville



101a

cases like those now before us—where the claim is that 
state criminal prosecutions have been brought to intimidate 
petitioners, and community hostility to the assertion of 
equal rights makes a fair trial in the local courts unlikely. 
The legislative history plainly calls on the federal courts 
to extend removal to minority groups who can show that 
local prejudice, expressed through the unconstitutional 
application of state laws, affects their rights.53 The un­
witting effect of the majority’s clinging to the gloss placed 
by Rives-Powers upon paragraph 1 is to put our circuit in 
the cynical position of saying to the petitioners: “ Remand 
orders may now be reviewed on appeal, but this will do 
you no good, for we will adhere to a paralyzing construc­
tion of section 1443.” We do not think the 'Supreme Court 
today would acquiesce in such a reading.54

Appendix III— Opinion of the Court of Appeals
in Baines v. City of Danville

53 See Note, 43 N. C. L. Rev. 628, 635 (1965).
54 Because we conclude that removal of these cases is authorized 

under section 1443(1), we need not now consider Avhether para­
graph (2) of the section, which authorizes removal of state 
prosecutions for acts done under “ color of authority of laws pro­
viding for equal civil rights,” applies to private persons.

The Fifth Circuit in Peacock states in dictum that paragraph (2) 
does not apply to private persons, and the rationale of the ma­
jority opinion in People of State of New York v. Galamison, 342 
F. 2d 255 (2d Cir. 1965), leads to the same result. See also City 
of Chester v. Anderson, 347 F. 2d 823 (3d Cir. 1965) (per curiam 
opinion, with Judge Biggs dissenting). On the other hand, Judge 
Marshall’s dissent in Galamison argues persuasively that, when 
applied to particular situations, paragraph (2) allows removal of 
prosecutions against private individuals; and Professor Amster­
dam, after a meticulous analysis of the legislative history of the 
statute, agrees with Judge Marshall. See A msterdam, 113 U. Pa. 
L. Rev. at 874-78.



102a

APPENDIX IV

State Statutes Involved

Code of Va., 1950, tit. 18, § 18.1-9

§ 18.1-9. How misdemeanors punished.—A misdemeanor 
for which no punishment or no maximum punishment is 
prescribed by statute shall be punished by fine not exceed­
ing five hundred dollars or confinement in jail not exceed­
ing twelve months, or both, in the discretion of the jury or 
of the court trying the case without a jury. (Code 1950, 
§ 19-265; 1960, c. 358.)

Code of Va., 1950, tit. 18, § 18.1-65

§ 18.1-65. Shooting, stabbing, etc., with intent to maim, 
kill, etc.—If any person maliciously shoot, stab, cut, or 
wound any person or by any means cause him bodily injury, 
with the intent to maim, disfigure, disable, or kill, he shall, 
except where it is otherwise provided, be confined in the 
penitentiary not less than three nor more than twenty 
years. If such act be done unlawfully but not maliciously, 
with the intent aforesaid, the offender shall, at the discre­
tion of the jury, be confined in the penitentiary not less 
than one nor more than five years or be confined in jail not 
exceeding twelve months, and fined not exceeding five hun­
dred dollars. (Code 1950, §18-70; 1958, c. 219; 1960, e. 
358.)

Code of Va., 1950, tit. 18, § 18.1-254

§ 18.1-254. Riotous or disorderly conduct in other public 
places; disturbance in public conveyance; local ordinances. 
—If any person behaves in a riotous or disorderly manner



103a

Appendix IV—State Statutes Involved

in any street, highway, public building, or any other public 
place, other than those mentioned in the preceding section, 
or causes any unnecessary disturbance in or on any public 
conveyance, by running through it, climbing through win­
dows or upon the seats, failing to move to another seat 
when lawfully requested to so move by the operator, or 
otherwise annoying passengers or employees therein, he 
shall be guilty of a misdemeanor.

Cities, towns and counties are hereby authorized and 
empowered to adopt ordinances or resolutions prohibiting 
and punishing the above acts, or any of them, when com­
mitted in such cities, towns, or counties, and such ordi­
nances or resolutions shall provide the same punishment 
for a violation thereof as is provided by this section, any­
thing in the charters of such cities or towns to the contrary 
notwithstanding. All fines imposed for the violation of 
such ordinances or resolutions shall be paid to and retained 
by such cities, towns and counties, and the Commonwealth 
shall not be chargeable with any costs in connection with 
any prosecution for the violation of any such ordinances 
or resolutions. (Code 1950, §18-131; 1950, p. 36; 1960, c. 
358.)

Code of Va., 1950, tit. 18, § 18.1-310

S 18.1-310. Obstructing justice by threats or force.—If any 
person, by threats, or force, attempt to intimidate or im­
pede a judge, justice, juror, witness, or an officer of a 
court, or any sergeant or other peace officer, or any revenue 
officer, in the discharge of his duty, or to obstruct or im­
pede the administration of justice in any court, he shall be 
deemed to be guilty of a misdemeanor. (Code 1950, § 18- 
272; 1960, c. 358.)



38