Thomason v. Cooper Brief for Appellees

    BRIEF FOR APPELLEES WILLIAM G. COOPER, 
ET AL., AND LITTLE ROCK SCHOOL DISTRICT.

United States Court of Appeals
EIGHTH CIRCUIT.

No. 15915.

Q rm ,.

MRS. CLYDE THOMASON, APPELLANT, 
vs.

WILLIAM G. COOPER, M. D., AS PRESIDENT OF 
B O A R D  OF T R U S T E E S ,  L I T T L E  R O C K  
INDEPENDENT SCHOOL DISTRICT, ET AL. 
( D E F E N D A N T S ) ,  AND JOHN AARON, A 
MINOR, AND THELMA AARON, A MINOR, BY 
THEIR MOTHER AND NEXT FRIEND, (MRS.) 
THELMA AARON, A FEME SOLE, ET AL., 
(PLAIN TIFFS), APPELLEES.

A p p e a l  fr o m  t h e  U n it e d  S tates  D istr ic t  C ourt  
for  t h e  E aste rn  D istr ic t  of A r k an sa s

A. F. HOUSE,
Attorney for Appellees

William G. Cooper, el al., 
and Little Rock School District.

BUXTON & SKINNER, PRINTERS, ST. LOUIS



INDEX.
Page

Statement of the C ase ..........................   1
Argument.....................................................................................................  4
Conclusion ...................................................................................................  7

Table of Cases:
Capella v. Zurich General Accident & Liability Insurance Co.,

194 F. (2d) 558 ....................................................................................  6
Fort Worth & D. Railway Co. v. Harris, 230 F. (2d) 680 ................. 6

Other Authority:
Rule 46, Federal Rules of Civil Procedure.......................................  6



United States Court of Appeals
FOR THE EIGHTH CIRCUIT.

No. 15915.

MRS. CLYDE THOMASON, APPELLANT,

vs.

WILLIAM G. COOPER, M. D., AS PRESIDENT OF 
B O A R D  OF T R U S T E E S ,  L I T T L E  R O C K  
INDEPENDENT SCHOOL DISTRICT, ET AL. 
( D E F E N D A N T S ) ,  AND JOHN AARON, A 
MINOR, AND THELMA AARON, A  MINOR, BY 
THEIR MOTHER AND NEXT FRIEND, (AIRS.) 
THELMA AARON, A FEAfE SOLE, ET AL,, 
(PLAIN TIFF), APPELLEES.

BRIEF FOR APPELLEES. WILLIAM G. COOPER, 
ET AL., AND LITTLE ROCK SCHOOL DISTRICT.

STATEMENT OF THE CASE.

We have here not a preliminary injunction but a perma- 
ment injunction, and that part of Rule 65, Federal Rules of 
Civil Procedure, relied on by appellant is not applicable.

The schools operated by appellee Little Rock School 
District, hereinafter referred to as ‘ ‘ District, ’ ’ were to



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open on September 3, 1957. Instead of intervening in the 
United States District Court, hereinafter referred to as 
“ District C ourt/’ to show cause why operations under the 
plan of integration approved by the District Court on Au­
gust 15, 1956, should be. postponed, the appellant filed suit 
on August 27, 1957, in the Chancery Court of Pulaski Coun­
ty, a court of the State of Arkansas hereinafter referred to 
as the “ Chancery Court.”

Under State court procedural rules the District would 
have been entitled to a reasonable time in which to plead 
and prepare for a hearing. Counsel for appellant and coun­
sel for the District realized that they must move rapidly if 
the question involved were to be finally settled before the 
opening of schools on September 3rd. Counsel for the Dis­
trict realized that if the Chancery Court decree interfered 
with the operation of the plan as approved by the District 
Court it would be required to go to the District Court for 
injunctive relief. In view of the existing emergency, coun­
sel for appellant and counsel for the District agreed that 
the District would immediately file its Answer and be ready 
for a hearing in the Chancery Court on September 29, 1957, 
and that if the Chancery Court did enter an order forbid­
ding operations under the plan, and if the District deemed 
it advisable to go to the District Court for relief, counsel 
for appellant would waive all formalities and appear before 
the District Court for a hearing on the District’s petition 
to enjoin appellant from endeavoring to enforce the Chan­
cery Court order.

On August 28th the District filed its Answer and on the 
29th there was a trial in the Chancery Court. On that date 
an order was entered by the Chancery Court forbidding 
integration of the races in the schools of the District. On 
the afternoon of the 29th the District applied to the District 
Court for a permanent injunction (R. 7) and asked for a 
hearing on August 30th.

Inasmuch as under the agreement of counsel all proce­
dural formalities were to be waived, it was not contempla­
ted that a summons would be issued. However, it was



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deemed proper to enter an order fixing the time of the 
hearing in the District Court. The Order (R. 16-17) uses 
the phrase “ temporarily enjoined.”  This is the only sug­
gestion in the record of an application for a temporary 
order. The Petition asked for a permanent order (R. 5) 
and the order which was entered was of a permanent na­
ture (R. 17-18). The Court of its own motion suggested the 
provision that the petitioner would not be required to file a 
bond (R. 18), but that did not change the nature of the pro­
ceeding. It only emphasized the fact that there was per­
manency in the restraint placed on appellant.

After the order of August 29th was entered, counsel for 
appellant, in keeping with the agreement to dispense with 
procedural delays, waived official service on the appellant, 
and on the day fixed for the hearing both appellant and her 
counsel were before the Court, On September 17, 1957, 
appellant filed her Notice of Appeal. It recites that the 
appeal is from the final order dated August 30, 1957, “ issu­
ing an injunction against her. ’ ’ It is significant that it was 
not termed a temporary injunction. It should be added that 
the agreement herein discussed was made with Arthur 
Frankel who filed the Complaint in the Chancery Court. 
Counsel who appears here for appellant first came into 
the proceeding on August 29th, but later he was informed 
of the agreement and courteously waived service of a copy 
of the order of August 29th and appeared on August 30th.



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ARGUMENT.

As stated, the hearing on the Petition which asks for a 
permanent injunction was held on August 30, 1957. Coun­
sel for appellees Aaron, et ah, the plaintiffs in the original 
suit, was present. He also had waived service of a copy of 
the order of August 29th. Appellant and her counsel were 
present. Counsel for appellant took no exception to the 
order fixing the date of hearing. He took no exception to 
the Petition, and he did not ask for an opportunity to pre­
sent testimony. He realized that within the confines of the 
original order of the District Court and the Complaint and 
the Answer filed in the Chancery Court, and the Decree of 
the Chancery Court, the solution to the only question pre­
sented would be found. As background material for consid­
eration by the District Court, counsel for appellant sum­
marized the testimony in the Chancery Court and argued at 
length that non-acceptance of the plan by residents of the 
District and the possibility of danger were sufficient to jus­
tify the Chancery Court’s decree. A stenographic tran­
script of his argument was taken by the official reporter of 
the District Court. Counsel did not question the accuracy 
of the exhibits attached to the Petition (R. 11-13). As a 
matter of fact, Exhibit “ C ”  was prepared by counsel for 
appellant and he knew that Exhibit “ B ”  was a true copy 
of the Answer filed by the District in the Chancery Court 
and that Exhibit “ A ”  was a true copy of the Complaint 
filed by Mr. Frankel in behalf of the appellant.

Only a question of law was presented to the District 
Court, to-wit, whether it was proper for a State court to 
interfere with the operation of the plan of integration which 
was to be put into effect in accordance with the order of the 
District Court, such court having retained jurisdiction of 
the original suit. No question was involved as to the sover­
eign power of a State, acting through its chief executive, to



take measures to preserve the peace. The question was 
whether a State court could order the District to disobey 
the order of the Federal Court. The impropriety of enjoin­
ing the District from doing what it had been ordered to do 
by the District Court was manifest, and it was a plain viola­
tion of the rule of comity and in disregard of the suprem­
acy clause of the Federal Constitution. To avoid repetition, 
we adopt and cite in support of the foregoing proposition 
the cases cited in Subdivision I of the Brief for Appellees, 
Aaron, et al.

The appellant is in no position to argue here that there 
was “ no adequate presentation of the facts.”  There was 
full opportunity to present any facts appellant deemed 
material, but that opportunity was deliberately waived. 
Counsel well knew that no conceivable testimony from wit­
nesses could affect the application of the rule of law which 
the District and Aaron et al contended was controlling. He 
well knew the exhibits attached to the Petition presented 
the one and only issue in the contest, to-wit, whether the 
Chancery Court had imposed upon the District a command 
in direct conflict with the command imposed by the District 
Court’s order of August 15,1956.

The Judge of the District Court did not act precipitantly, 
He heard all counsel had to say. He saw in the exhibits an 
undermining of the principle of federal supremacy, and he 
acted accordingly. The appellant did not even see fit to file 
a response to the Petition. The only point he could have 
stated in a response was implicitly raised in the exhibits 
which were attached to the Petition, and that was one of 
law and not fact. In the decree which was entered in the 
Chancery Court and which was prepared by counsel for 
appellant, he endeavored to put into words the idea that a 
State court, in the exercise of State sovereignty, can impair 
a Federal Court order on the premise that it is necessary to 
do so to preserve the peace. The allegations in the Com­
plaint filed in the State court reveal that the idea of State 
sovereignty being exercised by a trial court was in a meas­
ure extracted from a constitutional amendment and certain 
State statutes which were designed to “ prevent federal en­



[ 6 ]

croachment on the operation of public schools in Arkan­
sas”  (R. 9). The appellant speaks too late. Having been 
given every opportunity to offer proof and except to pro­
cedural orders, she was willing to rest her case on the 
exhibits to the Petition and her counsel’s oral argument. 
Under Rule 46 of the Federal Rules of Civil Procedure, for­
mal exception to rulings and orders of the court are unnec­
essary, but no litigant will be heard on appeal who has not 
made known to the trial court the action he desires the trial 
court to take. Without timely objections and an opportu­
nity to make corrections, a trial court may not be put in 
error. Capella v. Zurich General Accident & Liability Insur­
ance Co., 194 F.(2d) 558; Ft. Worth & D. Railway Co. v. 
Harris, 230 F. (2d) 680.

Were this case to be remanded, it would again be submit­
ted on the Petition and its exhibits, and testimony from in­
numerable witnesses as to why the Chancery Court entered 
its decree of August 29th could not possibly change the re­
sult.



[ 7 ]

CONCLUSION.

Affirmance is proper.

Respectfully submitted,

A. F. HOUSE,
Attorney for Appellees 

William G. Cooper, et al., 
and Little Rock School District.