Rachel v. Georgia Brief for Appellants

    Ix  THE

HiutrEs S t a t e s  C im r t  n !  A p p e a l s

F or the F ifth Circuit

No. 21354

T homas 'Raciiel, et al.,

-v.-

T he S tate of Georgia,

Appellant i

Appellee

OX A1’PEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA

BRIEF FOR APPELLANTS

D onald L. H ollowell 
H oward M oore, Jr.

859% Hunter Street, N.Y\. 
Atlanta, Georgia 30314

Jack Greenberg
10 Columbus Circle
New York, New York 10019

Attorneys for Appellants

Of Counsel

A nthony G. A msterdam 
Mi.i.YYN Z aur 
A x x Cooper 
John Q uarles, J r.

\



^ .**>.■** aii

I n the

'i lu i t i i i  f^ ta trn  (d m ir t  n f  A p o n t h i

P’ok the  F ifth  Circuit 

No. 21354

T homas R achel, et al.,
Appellants,

T he S tate of Georgia,
Appellee.

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

BRIEF FOR APPELLANTS

Statement of ilie Case

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

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

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



the City of Atlanta in the spring and early summer of 
1963 had been “ effected for the sole purpose of aiding, 
abetting, and perpetuating customs, and usages which have 
deep historical and psychological roots in the mores and 
attitudes which exist within the City of Atlanta with re­
spect to serving and seating members of the Negro race 
in . . . places of public accommodation and convenience 
upon a racially discriminatory basis and upon terms and 
conditions not imposed upon members of the so-called white 
or Caucasian race. Members of the white . . . race are 
similarly treated and discriminated against when accom­
panied by members of the Negro race” (R. 2-5).

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

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

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

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

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

2



i ■i.Yr i iViunTr̂  ■’■■■*<* ***-■ it.

3

Circuit to which was annexed a copy of the verified re­
moval petition and the removal order. The motion recited 
tint Judge Pye had ordered defendants m othei ca. . 
pnidin- on his calendar involving alleged violations o 
Title 26-3005 to show cause why their appearance bonds 
should not he increased and why fresh surety si on no. 
bo given and that movants (Appellants herein) stood 
threatened with the immediate prospect of their bom s 
being increased. Judge Pye had already increased the bond
of one accused niisdenH-ari02i££I!Lf22^J°j!L^-ia :- ^ ^ - _  
lants’ bonds were increased, many oH lim w o u ia  ̂  re­
quired to remain in jail because of inability to make the 
increased bond. Their motion further recited that the enm 
inal prosecutions prevented them from exercising rights 
under the federal Constitution and laws, that if the Dis 1 
Tmb-e had granted a hearing appellants herein would have 
shown facts sustaining federal removal jurisdiction, and 
that unless a stay were granted substantial issues raised 
by appellants would become moot (App. ©-•-) ------------ '

Also on March 12th, the State of Georgia moved to dis­
miss the appeal and to deny the stay, arguing that the 
Court of Appeals was without jurisdiction of the case (R.
2(1-30).

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

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



________________„ ___ w .  ------ -------- . . — - ̂

4

On April 1, 1961, Judge Pye ordered the Solicitor Gen­
eral, Atlanta Judicial Circuit, to apply to the Supreme 
Court of the United States for writs of mandamus and 
prohibition against this Court directing the Court to vacate 
its stay order and to proceed no further with the case. In 
a memorandum order, appellee’s application tor leave to 
file a petition for extraordinary relief was denied by the 
Supreme Court of the United States on June 22, 1964. 
State of Georgia, v. Tuttle, et al., 32 U. S. L. Week 3446 
(U. S. 6/22/64).*

Statutes and Rules

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

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

28 U. S. C. §1443 (195S):
§1443. Civil rights cases.

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

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

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



0

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

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

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

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

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

28 U. S. C. §2241 (1958):

§2241. Power to grant writ.

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

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



6

(e) The writ of habeas corpus shall not extend to 
a prisoner unless—

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

28 U. S. C. §2254- (195S):
§2254. State custody; remedies in State Courts.

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

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

Fed. Rule Civ. Pro. 81 (b ) :

(b) Scire Facias and Mandamus. The writs of scire 
facias and mandamus are abolished. Relief heretofore 
available by mandamus or scire facias may be obtained 
by appropriate action or by appropriate motion under 
the practice prescribed in these rules.

Fed. Rule Grim. Pro. 37:

Rule 37.

(a) Talcing Appeal to a Court of Appeals.

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



7

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

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

Ga. Code Ann. §20-3005 (1963 Supp.):

20-3005. Refusal to leave premises of another when 
ordered to do so by owner or person in charge.—It 
shall be unlawful for any person, who is on the prem­
ises of another, to refuse and fail to leave said prem­
ises when requested to do so by the owner or any 
person in charge of said premises or the agent or em­
ployee of such owner or such person in charge. Any 
person violating the provisions of this section shall be 
guilty of a misdemeanor and upon conviction thereof 
shall he punished as for a misdemeanor. (Acts I960, 
p. 142.)

<r Civil Rights Act of 1964, 78 Slat. 241 (P. L. SS-352):

T itle I X — I ntervention and P rocedure A fter 
R emoval in  C ivil R ights Cases

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

An order remanding a case to the State court from 
which it was removed is not reviewable on appeal or 
othenvise, except that an order remanding a case to 
the State court from which it was removed pursuant 
to section 1443 of this title shall be reviewable by ap­
peal or otherwise.”



. ____ Tiif >■ n _____________ ...

8

Statutory History

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

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

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

2 The F ederalist, No. 80 (Hamilton) (Warner, Philadelphia cd. 
1818), at 429.

3 Id., No. 81, at 439.
4 1 F ar r axd , R ecords of t h e  F eder al  C o n v e n t io n  125 (1 9 1 1 ) .  

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



, , , ....._■ . _____- ____ * 4,____

9

appeal would not in many oases be a remedy. What 
was to be done after improper Verdicts in State tri­
bunals obtained under the biassed directions of a de­
pendent Judge, or the local prejudices of an undirected 
jury? To remand the cause for a new trial would an­
swer no purpose. To order a new trial at the supreme 
bar would oblige the parties to bring up their wit­
nesses, tlio’ ever so distant from the seat of the Court. 
An effective Judiciary establishment commensurate to 
the legislative authority, was essential. A Government 
without a proper Executive & Judiciary would be the 
mere trunk of a body without arms or legs to act or 
move.” 5 *

The Judiciary Act of 17S9 allowed removal in specified 
classes of cases where it was particularly thought that 
local prejudice would impair national concerns," and exten­
sions of the removal jurisdiction were employed in 1815 
and 1833 to shield federal customs officials, respectively, 
against New England’s resistance to the War of 1812 and 
South Carolina’s resistance to the tariff.7 The 1815 act al­

51 id. 124.
0 The Act of September 24, 1780, eh. 20, §12, 1 Stat. 73, 79-80, 

authorized removal in three classes of cases where more than $500 
was in dispute: suits by a citizen of the forum state against an out- 
stater; suits between citizens of the same state in which the title 
to land was disputed and the removing party set up an outstate 
land grant against his opponent’s land grant from the forum state; 
suits against an alien. The first two classes were specifically de­
scribed by Hamilton as situations “ in which the state tribunals 
cannot be supposed to be impartial,”  T h e  F eder alist , No. 80  
(Warner, Philadelphia ed. 1818), at 432; and Madison, speaking 
of state courts in the Virginia convention, amply covered the 
third: “ We well know, sir, that foreigners cannot get justice done 
them in these courts. . . . ”  I l l  E lliot’s D ebates 583 (1836).

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



10

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

Congress was thus acting within a tradition of enforcing 
national policies against resistant localities by use of the 
removal jurisdiction when, in 1863, it provided “ That if 
any suit or prosecution, civil or criminal, has been or shall 
be commenced in any state court against any officer, civil 
or military, or against any other person, for any arrest or 
imprisonment made, or other trespasses or wrongs done 
or committed, or any act omitted to be done, at any time 
during the present rebellion, by virtue or under color of 
any authority derived from or exercised by or under the 
President of the United States, or any act of Congress,” 
the defendant might remove the proceeding into a circuit 
court of the United States. Act of March 3, 1863, ch. 81, 
§5, 12 Stat. 755, 756. Certain procedural amendments to 
the 1863 act were effected by the Act of May 11,1866, ch. 80, 
14 Stat. 46, which also provided in its fourth section “ That 
if the State court shall, notwithstanding the performance

Convention of 1814-1815, see 1 Morison & Commager, Growth 
of THE A merican Republic 426-429 (4th ed. 1950).

Act of March 2, 1833, ch. 07, §3, 4 Stat. G32, 633. Concerning 
South Carolina’s resistance to the successive tariffs, culminating 
in the nullification ordinance, see 1 Morison & Commager, supra 
470-485. The Force Act of March 2, 1833, responded to the South­
ern threat not merely by extending the removal jurisdiction of the 
federal courts, but by establishing a new head of habeas corpus 
jurisdiction. Section 7, 4 Stat. 632. 634. See Fay v. Noia, 372 U. S. 
391, 401 n. 9 (1963).



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

Earlier in the same 18(16 session, Congress passed, over 
the presidential veto, the first civil rights act, Act of April 
9, 1866, eh. 31, 14 Stat. 27. The first and third sections of 
the Act, reproduced below, significantly expanded federal 
removal jurisdiction within the traditions of the 1815, 1833 
and 1863 enforcement legislation:

“Be it evaded by the Senate and House of Repre­
sentatives of the United States of America in Congress 
assembled, That all persons burn in the United States 
and not subject to any foreign power, excluding Indians 
not taxed, are hereby declared to be citizens of the 
United States; and such citizens, of every race and 
color, without regard to any previous condition of 
slavery or involuntary servitude, except as a punish­
ment for crime whereof the party shall have been duly 
convicted, shall have the same right, in every State and 
Territory in the United States, to make and enforce 
contracts, to sue, be parties, and give evidence, to 
inherit, purchase, lease, sell, hold, and convey real and 
personal property, and to full and equal benefit of all 
laws and proceedings for the security of person and 
property, as is enjoyed by white citizens, and shall 
be subject to like punishment, pains, and penalties, and 
to none other, any law, statute, ordinance, regulation, 
or custom, to the contrary notwithstanding.

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



12

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

“ Sec. 3. And be it further enacted, That the district 
courts of the United States, within their respective 
districts, shall have, exclusively of the courts of the 
several States, cognizance of all crimes and offences 
committed against the provisions of this act, and also, 
concurrently with the circuit courts of the United 
States, of all causes, civil and criminal affecting per­
sons who are denied or cannot enforce in the courts or 
judicial tribunals of the State or locality where they 
may be any of the rights secured to them by the first 
section of this act; and if any suit or prosecution, civil 
or criminal, has been or shall be commenced in any 
State court, against any such person, for any cause 
whatsoever, or against any officer, civil or military, or 
other person, for any arrest or imprisonment, tres­
passes, or wrongs done or committed by virtue or un­
der color of authority derived from this act or the act 
establishing a Bureau for the relief of Freedmen and 
Refugees, and all acts amendatory thereof, or for re­
fusing to do any act upon the ground that it rvould 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



13

the ‘Act relating to habeas corpus and regulating ju­
dicial proceedings in certain cases,’ approved March 
three, eighteen hundred and sixtv-three, and all acts 
amendatory thereof. The jurisdiction in civil and crim­
inal matters hereby conferred on the district and cir­
cuit courts of the United States shall be exercised and 
enforced in conformity with the laws of the United 
States, so far as such laws are suitable to carry the 
same into effect; but in all cases where such laws are 
not adapted to the object, or are deficient in the pro­
visions necessary to furnish suitable remedies and 
punish offences against law, the common law, as modi­
fied and changed by the constitution and statutes of 
the State wherein the court having jurisdiction of the 
cause, civil or criminal, is held, so far as the same is 
not inconsistent with the Constitution and laws of the 
United States, shall be extended to and govern said 
courts in the trial and disposition of such cause, and, 
if of a criminal nature, in the infliction of punishment 
on the party found guilty.”

The 186(1 statute was reenacted by reference in the civil
rights act of 187fl,s and, with stylistic changes, became
Rev. Stat. §641; 8

8 The Enforcement Act of Mav 31, 1870, eh. 114, 5516-18, 16 
Slat. 140, 144:

“ Sec. 16. And hr it further mar,ted, That all persons with­
in the jurisdiction of the United States shall have the same 
right in every State and Territory in the United States to 
make and enforce contracts, to sue, be parties, give evidence, 
and to the full and equal benefit of all laws and proceedings 
for the security of person and property as is enjoyed by white 
citizens, and shall be subject to like punishment, pains, pen­
alties, taxes, licenses, and exactions of every kind, and none 
other, any law, statute, ordinance, regulation, or custom to 
the contrary notwithstanding. No tax or charge shall be im­
posed or enforced by any State upon any person immigrating 
thereto from a foreign country which is not equally imposed 
and enforced upon every person immigrating to such State



14

“ Sec. 641. When any civil suit or criminal prose­
cution is commenced in any State court, for any cause 
-whatsoever, against any person who is denied or can­
not enforce in the judicial tribunals of the State, or in 
the part of the State where such suit or prosecution is 
pending, any right secured to him by any law provid­
ing for the equal civil rights of citizens of the United 
States, or of all persons within the jurisdiction of the 
United States, or against any officer, civil or military, 
or other person, for any arrest or imprisonment or 
other trespasses or wrongs, made or committed by 
virtue of or under color of authority derived from any 
law providing for equal rights as aforesaid, or for 
refusing to do any act on the ground that it would be 
inconsistent with such law, such suit or prosecution 
may, upon the petition of such defendant, filed in said 
State court, at any time before the trial or final hearing 
of the cause, stating the facts and verified by oath, be 
removed, for trial, into the next circuit court to be

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

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

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



massu m ... —
■

15

liold in the district where it is pending. Upon the tiling 
of such petition all further proceedings in the State 
courts shall cease, and shall not be resumed except as 
hereinafter provided. . . . ”

In 1911, in the course of abolishing the old Circuit Courts, 
Congress technically repealed Rev. Stat. §6419 but carried 
its provisions forward without change (except that removal, 
jurisdiction was given the district courts in lieu of the cir­
cuit courts) as §31 of the Judicial Code.10 Section 31 ver­
batim became 2S U. S. C. §74 (1940),11 and in 194S, with

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

“ Sec. 31. ’When any civil suit or criminal prosecution is 
commenced in any State court, for any cause whatsoever, 
against any person who is denied or cannot enforce in the, 
judicial tribunals of the State, or in the part of the State where 
such suit or prosecution is pending, any right secured to him 
by any law providing for the equal civil rights of citizens of 
the United States, or of all persons within the jurisdiction of 
the United States, or against any officer, civil or military, or 
other person, for any arrest or imprisonment or other tres­
passes or wrongs made or committed by virtue of or under 
color of authority derived from any law providing for equal 
rights as aforesaid, or for refusing to do any act on the ground 
that it would be inconsistent with such law, such suit or prose­
cution may, upon the petition of such defendant, filed in said 
State court at any time before the trial or final hearing of 
the cause, stating the facts and verified by oath, be removed 
for trial into the next district court to be held in the district 
where it is pending. Upon the filing of such petition all fur­
ther proceedings in the State courts shall cease, and shall not 
be resumed except as hereinafter provided. . . . ”

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

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

in any State court, for any cause whatsoever, against any 
person who is denied or cannot enforce in the judicial tri­
bunals of the State, or in the part of the State where such 
suit or prosecution is pending, any right secured to him by 
any law providing for the equal civil rights of citizens of the



16

changes in phraseology,12 it assumed its present form as 
28 U. S. C. §1443 (195S) :13

‘•§1443. Civil rights cases.

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

United States, or of all persons within the jurisdiction of the 
United States, or against any officer, civil or military, or other 
person, for any arrest or imprisonment or other trespasses or 
wrongs made or committed by virtue of or under color of 
authority derived from any law providing for equal rights 
as aforesaid, or for refusing to do any act on the ground 
that it would be inconsistent with such law, such suit or prose­
cution may, upon the petition of such defendant, filed in said 
State court at any time before the trial or final hearing of 
the cause, stating the facts and verified by oath, be removed 
for trial into the next district court to be held in the district 
where it is pending. Upon the filing of such petition all fur­
ther proceedings in the State courts shall cease, and shall not 
be resumed except as hereinafter provided.. . . ”

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

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

“ Changes were made in phraseology.”
13 -Act of June 25, 1948, eh. G4G, §1443, 62 Stat. SG9, 93S. The 

1948 Code made important changes in removal procedure. Prior 
to 1948, a party seeking to remove a case or prosecution filed a 
removal petition in the state court where the case was pending. 
The state court passed upon the propriety of removal and granted 
or denied the petition. Its denial was subject to direct review in 
the state appellate courts and ultimately in the Supreme Court of 
the United States, or to collateral attack by the filing of the record 
in the lower federal court to which removal was authorized by 
statute. See Metropolitan Casualty his. Co. v. Stevens, 312 U. S. 
5G3 (1941). Under the 1948 Code the removal petition in “ any 
civil action or criminal prosecution” is filed in the first instance in 
the federal district court, 28 U. S. C. §1446(a) (1958), which alone



_____  --------------------------------------------  _ - . . . . . . . .  — ■.; rP frU W fafct iwm.H »«*!<■• - m siid a tm iid  j J

17

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

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

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

decides whether or not removal is allowable. Removal petitions in 
civil actions must be fded within 20 days following receipt of the 
initial pleading (or the first subsequent pleading stating a remov­
able ease, where the case stated by the initial pleading is not re­
movable), but removable petitions in criminal prosecutions may be 
tded at any time before trial. 28 U. S. C. §1440(b), (c) (195S). 
Filing of a copy of the removal petition with the clerk of the state 
court effects removal and deprives the state court of jurisdiction 
to proceed. 28 U. S. C. §1440(e) (1958). As under earlier practice, 
the federal court to which removal is effected may stay subsequent 
state proceedings, 28 U. S. C. §2283 (1958), and, in criminal prose­
cutions, takes the defendant into federal custody by habeas corpus 
28 U. S. C. §1446(f) (1958). * '



-xaaiiut .

jurisdiction in quite different directions and for quite dif- 
ferent purposes, This was the Judiciary Act of 1S75 which, 
beginning as a bill to expand the diversity jurisdiction,11 * * 14 
was enacted as a regulation of the general civil (non- 
civil-rights) jurisdiction of the circuit courts of the United 
States. Act of March 3, 1S75, ch. 137, 18 Stat. 470. This 
act for the first time15 gave the lower federal courts origi­
nal federal-question jurisdiction; its first section gave 
the circuit courts jurisdiction “ of all suits of a civil nature 
at common law or in equity” involving the requisite juris­
dictional amount and “ arising under” federal law, or be­
tween citizens of different states, or citizens of a State and 
foreign states or subjects, or between citizens of the same 
State claiming under land grants of different States, or 
where the United States was plaintiff. 18 Stat. 470. No 
original civil-rights jurisdiction was given; this had been 
specially created by the civil rights acts and was codified, 
in pertinent part, in Rev. Stat. §629, Sixteenth, Seventeenth, 
Eighteenth,16 now 28 U. S. C. §1343(1), (2), (3) (1958).17 
Section 1 of the 1875 Judiciary Act also gave the circuit 
courts exclusive criminal jurisdiction “ of all crimes and 
offenses cognizable under the, authority of the United 
States, except as otherwise provided by law, and concur­
rent jurisdiction with the district courts of the crimes and 
offenses cognizable therein.” 18 Stat. 470. Sections 2

11 F rankfurter & L andis, The Business of the Supreme Court
66-68 (1928).

15 Excepting the short-lived federalist Act of February 13, 1801, 
ch. , 0  , §11, 2 Stat. 89, 92, repealed by the Act of March 8, 1802,
ch. Q  , 2 Stat. 132.

1G The civil rights jurisdiction of the district courts was sepa­
rately codified in Rev. Stat. §563, Eleventh, Twelfth.

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



19

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

The Act of March 3, 1887, ch. 373, 24 Stat. 552, amended 
to correct enrollment by the Act of August 13, 188S, ch. 
86G, 25 Slat. 433, extensively amended the Judiciary Act 
of 1875. Although it left the original jurisdiction largely 
unaltered (the jurisdictional minimum was raised- from 
$500 to $2,000, and creation of diversity jurisdiction by

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



. a i i l iK iK M tt i

20

assignment of a negotiable instrument was precluded), the 
Act of 3887 fundamentally rewrote the jurisdictional 
grounds for, and the procedure in, civil removal cases. 
Section 1, 25 Stat. 434-435, in pertinent part, provided:

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

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



, , r'• il’i «n»n , m.m, - ’■ ■ •-"*••• ̂ ---A., ._____________

21

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

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

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



22

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

Section (i of the 1S87 act provided: “ That the last para-___. f cj
graph of section five of the act [of 1875; th^rid'ererrci'TTs 
to the review provision of §5, supra p. 0  , n. 18] . . . and 
all laws and parts of laws in conflict with the provisions of 
this act, he, and the same are hereby repealed. . . . ” 25 
Stat. 436-437. But §5 of the 1887 act contained this saving 
clause:

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

Like the Act of 1875 which it amended, the Act of 1S87 did 
not affect federal removal jurisdiction in criminal cases.

19 The provisions to which reference is made are as follows: 
§G41 is the civil rights (civil and criminal) removal statute set 
out supra p p ^ -Q  ; §642 requires the clerk of the circuit court to 

>—issiie'a writ of habeas corpus cum causa for the body of the defen­
dant. who has removed any suit or prosecution under §641; §643 
authorizes removal of “any civil suit or criminal prosecution” 
against a federal revenue officer, or any officer or person acting 
under the federal voting laws; §722 describes the law to be applied 
in civil rights (civil and criminal) removed eases; title 24 of the 
Revised Statutes is the civil rights title; §8 of the Judiciary Act 
of 1875 provides for service of process ou absent defendants in civil 
actions to enforce or remove liens or incumbrances on property 
within the court’s jurisdiction; the Act of March 1, 1875, is the 
fourth civil rights act. supra pij. Q  .



........................................................ ........................*  -

23

As indicated above, the Judicial Code of 1911 technically 
repealed Rev. Stat. '§041, for the purpose of abolishing the 
jurisdiction of the circuit courts. It carried forward §G41’s 
exact provisions as a grant of civil rights (civil and crim­
inal) removal jurisdiction to the district courts by virtue 
of Judicial Code §31, supra, p. Q"7"nTl0. The civil (non- 
civil-rights) removal provisions of the Judiciary Act of 
1887, amending that of 1875, Avere carried forward virtu­
ally unchanged as Judicial Code §§28-30. Section 28, the, 
principal provision, reenacted inter alia the 1887 prohibi­
tion of appellate revieAv of remand orders, supra pp. Q .20

20 3G Stat. 1094-1095. Italicized in pertinent part, §28 reads:
Sec. 28. Any suit of a civil nature, at law or in equity, 

arising under the Constitution or Ihavs of tire United States, 
or treaties made, or which shall be made, under their authority, 
of which the district courts of the United States are given 
original jurisdiction by this title, which may now be pending 
or AA’hieh may hereafter be brought, in any State court, may 
be removed by the defendant or defendants therein to the 
district court of the United States for the proper district. 
Any other suit of a civil nature, at law or in equity, of which 
the district courts of the United States are given jurisdiction 
by this title, and which arc now pending or which may here­
after be brought, in any State court, may be remo\red into the 
district court of the United States for the proper district by 
the defendant or defendants therein, being non-residents of 
that State. And Avhen in any suit mentioned in this section 
there shall be a controversy which is wholly between citizens 
of different States, and which can be fully determined as be­
tween them, then either one or more of the defendants actu­
ally interested in such contnrversy may remo\7e said suit into 
the district court of the United States for the proper district. 
And where a suit is now pending, or may hereafter be brought, 
in any Slate court, in which there is a controA’ersy between 
a citizen of the State in which the suit is brought and a citizen 
of another State, any defendant, being such citizen of another 
State, may remove such suit into the district court of the 
United States for the proper district, at any time before the 
trial thereof, when it shall be made to appear to said district 
court that from prejudice or local influence he will not be able 
to obtain justice in such State court, or in any other State court 
to which the said defendant may, under the laAvs of the State, 
have the right, on account of such prejudice or local influence,



24

Section 297 of the Code, 36 Stat. 11GS, specifically repealed 
the Judiciary Act of 1875 and §§1, 2, 3, 4, 6 and 7 of the 
Judiciary Act of 1887—that is, every part of the act of 1887 
except the civil rights saving clause, section 5, supra p. O r -  ~L 
Section 297 further provided, 36 Stat. 1169:

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

to remove said cause: Provided, That if it further appear that 
said suit can be fully and justly determined as to the other 
defendants in the State court, without being affected by such 
prejudwe or local influence, and that no party to the suit 
will lie prejudiced by a separation of the parties, said district 
™“ ,rt "?ay direct the suit to be remanded, so far as relates to 
such other defendants, to the State court, to be proceeded with 
theiein. At any time before the trial of any suit which is now 
pending in any district court, or may hereafter be entered 
therein, ana which has been removed to said court from a 
State court on the affidavit of any party plaintiff that he had
i'n?Wn I0 0''"  and ,d,id belicve that- prejudice or local nfluence, he was unable to obtain justice in said State court 
the distuct court shall, on application of the other party’ 
examine into the truth of said affidavit and the grounds there- 
of, and, unless it shall appear to the satisfaction of said court
eonrtSTfd iPanty W11 >110t bc abl° to obtain justice in said State court, it shall cause the same to be remanded thereto. Whenever

Sl allr lJiC rTcTni0Ved f rom anV state court into any 
dfni l t >C Umted States, and the district court .shall

, , le CaltSC, was '^Properly removed, and order the 
sa ne to he remanded to the State court from whence it came,
Z fannZl vnn\cdinidV ™rried into execution, and
no appeal or writ of error from the decision of the district court 
so remanding such cause shall bc allowed: Provided That no 
case arising under an Act entitled “ An Act relating to the lia- 
b lty of common carriers by railroad to their employees in 
c i tan, cases approved April twenty-second, nineteen hun-
a iiv s  l  ei? ' l ° V “y amendl!1(mt thereto, and brought in 

}  Sta<( ™ " r\ of competent jurisdiction shall be removed
to any court of the United States.

-'Section 297 of the Judicial Code of 1911 was not affected bv 
thc enactment of Title 28, U. S. C. in 1948. See 02 Stat 869 996.



rtr’-'i iiri -1 -- - -— ^ - «iV,;irn'l iTn

25

Sections 2S, 29 and 30 of the Judicial Code appear as 28 
U. S. C. §§71, 72 and 73 (1940), respectively. By reason 
of the abolition of the writ of error in all cases, civil and 
criminal, in 1928," the sentence in §28 (ffsarryrng: :fon v a rd ^  
the 1887 preclusion of review by “ appeal or writ of error,” 
supra p ]v ,0 , n. 20. omits reference to the writ. It reads: 

~~'t\ rT\T hen ever any cause shall be removed from any State 
court into any district court of the United States, and the 
district court shall decide that the cause was improperly 
removed, and order the same to be remanded to the State 
court from whence it came, such remand shall be immedi­
ately carried into execution, and no appeal from the deci­
sion of the district court so remanding such cause shall be 
allowed.'” 28 II. S. C. §71 (1940). No other significant 
change appears.23

The 1948 Code (A) reenacted the civil rights (civil and 
criminal) removal jurisdiction without substantive change, 
28 IT. S. C. §1443 (1958), supra■ pp. © f ‘ (B) significantly 
broadened the scope of removal jurisdiction (civil and 
criminal) in cases involving federal officers and persons 
acting under them, 2S U. S. C. §1442 (1958); (C) substan­
tially rewrote the jurisdictional bases of general civil re­
moval jurisdiction (descendant from the Judiciary Acts of 
1875,1887, the Judicial Code of 1911, §§28-30 and 28 U. S. C. 
§§71-73 (1940)), 28 U. S. C. §1441 (195S) ;24 (D) con-

t c  n

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

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

21 §1441. Actions removable generally.
(a) Except as otherwise expressly provided by Act of Con­

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



26

\1

siderably altered the removal procedures for both civil and 
criminal actions, 2S U. S. C. §§1446, 1447 (195S), see supra 
pp. J®, n. 13, and (E) inadvertently omitted the provi­

s ion  of the earlier general civil removal statutes which pro­
hibited appellate review of remand orders. The Act of 
May 24, 1949, ch. 139, §84(b), 63 Stat. 89, 102, supplied 
the latter omission by adding a new subsection (d) to 28 
U. S. C. §1447. The 1949 act was an omnibus technical 
amendment statute, intending no “ enactment of substantive 
law, but merely correction of errors, misspellings, and in­
accuracies in revision.” '*5 The House Report says that the 
purpose of the new subsection is “ to remove any doubt 
that the former law as to the finality of an order of remand 
to a State court is continued.” 28 U. S. C. §1447(d) reads:

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

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

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

25 Mr. O’Connor in the Senate, 95 Cong. lice. 5827 (81st Cong., 
1st Sess. 5 /6 /4 0 ). Senator O’Connor reported the bill from the 
Senate Committee on the Judiciary. 05 Cong. Rec. 5020 (81st 
Cong., 1st Sess. 4 /26 /49 ).

20II. R. Rep. No. 352, 81st Cong., 1st Sess. (1949), 2 U. S. Code 
Cong. Serv., 81st Cong., 1st Sess., 1949. 1254, 1268 (1949).



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

By Title^ff) Section 901 of the Civil Rights Act of 1964, 
passed in each house by an overwhelming vote, Congress 
has amended 2S USC 1447 (d) to expressly provide for 
review of remand orders in civil rights d^by appeal or 
otherwise,”  (Emphasis added.) ________ ____

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

Specifications of Error

The District Court erred in:

(1) remanding the case to the state court on the au­
thority cited;

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

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

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

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

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

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



I

1

I
|

28

(2) remanding the case to the state court sua sponte;

(3) remanding the case to the state court without first 
hearing evidence and argument as to the correctness of the 
uncontradicted allegations of the verilied removal petition.

Summary of Argument

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

Appellants take the position that: (A )(1) the remand 
order is reviewable by a proceeding in the nature of' man-  ̂
damns under 28 IT. S. C., Sec. 1651(1958); (2) on the 
record before the Court the case may be properly enter­

tained as on petition for writ of mandamus -^Apfi.
(B) 28 U. S. C., Sec. 1447(d)(1958) does not 

apply to (1) criminal cases or (2) cases sought to be re­
moved under the civil rights acts, 28 U. S. C., Sec. 1443 
(1958); (C) whether or not the remand order is reviewable 
by proceedings in the nature of mandamus under Sec. 1651, 
the validity of appellants’ custody following remand of 
their cases to the state court is cognizable by petition for 
writs of habeas corpus to the judges of this Court under

,v r -* y

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

zs The statute precluding review of an order of remand is ex­
pressly limited in its operation to instances where the district 
court determines prior to final judgment that the cause was “ im­
properly removed” ; i.e., where the removal petition fails to aver 
the requisite jurisdictional facts. Traveler's Protective Ass’n of 
America v. Smith, ct ah, 71 F. 2d 511 at 512 (4th Cir. 1934) (ap­
peal dismissed; leave to fde petition for mandamus allowed). See 

_ If. ©  , supra.

J *

:



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

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

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

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



j« ; ( 'i! * i iY* i<Tr* “ ■—— « T> i ,MttWn-ffi1ir:'ri itfrtfriWi1~^i—*4-' ̂ ; -  * v-* ~ ̂  - k - — ■«$

30

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

Appellants’ position on this appeal as stated supra, 
p age j©  , makes it unnecessary for them to respond to / ,  . . .

^appellee’s point 5 (Tv. 24).

A R G U M E  NT  

I
(A) Reserving questions presented by Section 1447(d), 

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

(1) Under the all writs section of the Judicial Code,
28 U. S. C. Section 1651 (1958), this Court has power to 
issue orders in the nature of mandamus29 in aid of its ap­
pellate jurisdiction. Pursuant to 28 U. S. C. Section 1291 
(1958) this Court has authority to review final decisions 
entered in the Court below in removed criminal prosecu­
tion. Hence, review “ agreeable to the usages and principles 
of law” (section 1651) of interlocutory orders in the cases 
is allowable, United States v. Smith, 331 U. S. 469 (1947);
LaBuy v. IJotces Leather Co., 352 IT. S. 249 (1957); Platt 
v. Minnesota Mining tC Mfg. Co., 84 S. Ct. 769 (1964) (by 
implication), particularly where the interlocutory order 
prevents the cases from coming to final judgment in the 
District Court and thus defeats the normal appellate juris-

2,1 Rule 81(h) Fed. R. Civ. Pro., formally abolishing the writ of 
mandamus and providing that all relief previously available by 
mandamus may be obtained by appropriate action or motion, does 
not. affect the scope of relief in the nature of mandamus which 
a federal appellate court may order. LaBuy v. Howes Leather Co., 
•152 U. S. 249 (1957) (by implication).



■ - - - - - -  w»: „1. i .» r»-fJ l..Mi»'

31

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

“Applications for a mandamus to a subordinate coui t 
are warranted by the principles and usages of law in cases 
where the subordinate court, having jurisdiction of a case 
refuses to hear and decide the controversy . . . ” Ex parte 
Newman, 14 Wall. 152, 165 (1877) (dictum). See Insurance 
Co. v. Comstock, 16 AYal.U© (1872) (issuing advisory opin- 

—ton'Td do service for mandamus). Grounding its rationale 
upon Newman and Comstock, the United States Supieme 
Court in Railroad Co. WiswaU, 23 A Call. 507 (1874), decided 
that an order of a federal trial court remanding a removed 
case to the state court was reviewable by mandamus.30 That 
ruling lias never been questioned in subsequent cases. See 
Hoadley v. San Francisco, 94 U. S. 4, 5 (1875); Babbitt v. 
Clark, 103 U. S. 606 (1880); Tamer v. Farmers’ Loan <C 
Trust Co., 106 U. S. 552, 555 (1882); Gay v. Ruff, 292 II. S. 
25, 28 n. 3 (1934); Employers Reinsurance Corp. v. Bryant, 
299 U. S. 374, 378 (1937); also Missouri Pacific Ry. Co. v. 
Fitzgerald, 160 U. S. 556, 580 (1896); United States v. 
Rice, 327 U. S. 742, 749-750 (1946). It is accordingly clear 
that, but for any question arising from 28 U. S. C. Section 
1447 (d), “ the power of the court to issue the mandamus 
would be undoubted.” In re Pennsylvania Co., 137 U. S. 
451, 453 (1890).

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

The WiswaU case was decided before the creation of the Courts 
of Appeals in 1831. at a time when the Supreme Court of the United 
States had the same immediate appellate superintendence over the 
old Circuit Courts that the Courts of Appeals now have over the 
District Courts. In Wiswall the Court dismissed a writ of error 
to the Circuit Court on the ground that the proper remedy was 
an application to the Court for mandamus.



32

relief in the nature of mandamus. Fed. Rules Civ. Pro. 
81 (b) provides that “ Relief heretofore available bj’’ man­
damus . . . may be obtained by appropriate action or by 
appropriate motion under the practice prescribed in [the] 
. . . rules.” Appellants’ motion for stay pending appeal 
(App. ]). ), to which were attached copies of the

rverTfieclremova] petition and the remand order (R. 2, 10), 
adequately served to put before this Court a proceeding in 
the nature of mandamus. It is unimportant that the motion 
did not speak in terms of mandamus. See United States 
v. Morgan, 346 U. S. f>02 (1954); Heflin v. United States, 
358 U. S. 415 (1959); United Slates v. Morgan, 358 U. S. 
415 (1959); Mitchell y. United Stales, 368 U. S. 439 (1962); 
Coppedge v. United States, 369 U. S. 438, 442 n. 5 (1962); 
Fed. Rule Crim. Pro. 52(a).

(It) §1447 (d) does not bar review of 
the remand order

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

31 Senator O’Connor at 95 Cone. Rec. 5827 [8]st Cong., 1st Sess. 
5/6/49), quoted in part supra p. at n.(X.



iwrrmnn^i
'S£k-ua---------------a o u ri-aitfiMn. — •—- ........ . .............  •■-■ ■ ■■' -■ -  ■ :--i „

33

to overrule the long-standing doctrine that orders of a Court 
of Appeals directing remand of a removed case are re- 
viewable by the Supreme Court on certiorari. E.g., Gay 
v. Ruff, 292 F. S. 25 (1934); Aetna Casualty <6 Surety Co. 
v. Flowers, 330 V. S. 404 (1947). The sweeping language 
of the 1949 enactment plainly seems to have this unintended 
overreach, for it omits the limitation of the original 1887 
statute to “decision of the circuit court” (sec p. 
and the limitation of the 1911 Judicial Code to “decision 
of the district court” (see pp. 20 supra), ujtoiu-
which limitation Gay and Flowers rested. BiiTThe statute 
cannot rationally be given the effect which its words appear 
to command. Plainly §1447(d) looks broader than it is.

The statutory history set out at pp. ©' supra also dem­
onstrates that when Congress barred review of a remanded 
“ case” in §1447(d) it meant a civil ease and did not mean 
to preclude review of remand orders by mandamus in crim­
inal cases. The criminal removal jurisdiction of the federal 
courts was 1he creature of a series of relatively limited 
and specific enactments throughout the nineteenth century 
—principally the acts of 1815, 1833, and 1866, and related 
enactments.32 These concerned federal officers, persons act­
ing under them, and civil rights defendants; the statutes 
invariably spoke of “ suit or prosecution,” or “ suit or prose- 
eution, civil or criminal.” See pp. 0 "7  ^The general 
civil removal jurisdiction was created, and its scope altered 
from time to time, by an entirely different line of statutes,33 
of which the Judiciary Acts of 1875 and 1887 are the most 

See pp.important. See pp. © — supra. The removal 
of these statutes are in terms limited to civil actions: 
suit of a civil nature, at law or in equity.” See pp

/

2 3

a - a ?

-  C  -  >

provisions 
“ any 

G - / ? ,

32 Citations to the statutes are collected in H art  & W e c h sl e r , 
T in : F ederal  Courts  a n d  t h e  F ederal  S y s t e m  1147-1150 (1 9 5 3 ) .

33 See H art & W e c h sl e r , su p ra  note">t5))Ht 1019-1020.

% /
3 2



•>____ I. « = ^ H

84

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

31 As amended to correct enrollment l>v the act of 1888. See 
pp. O  supra.



35

decision of (he circuit court so remanding such cause shall 
be allowed.” See pp. O  supra.

— Snch a disallowance of “appeal or writ of error” in 1887 
could not conceivably have been intended to apply to crimi­
nal cases, because prior to 1889 there was in the federal 
courts “no jurisdictional provision for appeal or writ of 
error in criminal cases.” Carroll v. Untied Stales, 354 II. S. 
394, 400 n. 9 (1957); Bator, Finality in Criminal Law and 
Federal Habeas Corpus for State Prisoners, 76 H arv. L. 
Rev. 441, 473 n. 75 (19G3). The act of 1875 had given none, 
and there was no other.35 Moreover, the exclusive preoccu­
pation of the 1887 statute with matters of civil removal is 
evident. The act was a compromise between the House and 
Senate as to the means of relieving the lower federal courts 
which were “ overloaded with business.” 30 The overload 
had been a subject of Congressional agitation during a 
number of years preceding 1887, and the agitation had con­
cerned civil cases.36 37 All of the changes of law worked by 
the jurisdictional provisions of the act of 1887 were changes

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

30II. R. Rep. No. 1078, 49th Cong., 1st Sess. (1886), p. 1.
37 The story is told in F rankfurter & Landis, The Business of 

tiie Supreme Court 56-102 (1928).



J W U  -

IS
J

, 2 3

affecting civil cases.38 Contemporary comment on the act, of 
1SS7 is concerned exclusively with civil cases.30 In this con­
text, the provision barring review of remanded “ cause[s] 
can only plausibly be read to refer to civil causes. Con­
gress dealt with nothing else, considered nothing else, in 
1887. The Judicial Code of 1911 merely carried forward the 
1887 provision without change,40 and this was the “ former 
law” 41 which Congress reinstated when it enacted §141-7 (d) 
in 1949.

None of the authorities cited by the appellee in its mo­
tion to dismiss (R. 28) holds that §1447(d) applies to crim­
inal cases, and appellants have been unable to find any case 
so holding. Snypp v. Ohio, 70 F. 2d o35 (6th Cir. 1934), 
seems to be the only criminal case in which the issue 
might have been raised and, although the court in Snypp 
appears tentatively disposed to reject the specific con­
tention that the 1887 provision precluding review of re­
mand orders applies only to cases removed under the 18S7 
removal provisions, the court leaves the issue undecided 
and affirms the remand order on the merits. Of course, 
it is not appellants’ contention, as it was Snypp’s, that the 
§1447(d) bar is limited to cases sought to be removed 
under so much of the removal statutes as presently continue

/
J

r<>
1 7

J
■iH

V

It,

3S See P IV /O  supra.
•— See D u st y , T he R e m o v a l  of C a u s e s  F rom  S t a t e  to F ederal  

C ourts 207 (3d ed. 1893); D il l o n , R e m o v a l  of C au ses  F rom  
S t a t e  C ourts to F ederal  C ourts 81 (5th ed. 1889) ; S peer , R e ­
m o val  of C au ses  F rom  t h e  S t a t e  to F ederal  C ourts  59 (1888). 
These discussions concern the removal provisions oi the 188/ net 
find do not address themselves specifically to construction ot the 
passage barring review of remand orders. "W hat is significant hero 
is that all the writers agree in assuming that the act of 1887 affects 
onlj' civil cases.

Except that “ district court” was substituted for “ circuit court” , 
see pp. O  supra.

"  See pp. Q  supra.



37

the removal jurisdiction granted by the 1887 act. Appel­
lants concede that other civil cases fall within the bar 
because they fall within the range of concern of the 1887 
Congress which undertook a general revision of the cnnl 
removal jurisdiction, United Stales v. Rice, 327 U. S. 742 
(1U46); cf. Morey v. Lockhart, 123 IT. S. 56 (1887), and 
within the policy to which that Congress gave effect. “ Con­
gress, by the adoption of these provisions, . . . established 
the policy of not permitting interruption of the litigation 
of the merits of a removed cause by prolonged litigation 
of questions of jurisdiction of the district court to which 
the cause is removed.” United States v. Rice, supra, at 751. 
“ So far as the mere question of the forum was concerned, 
Congress was manifestly of opinion that the determination 
of the Circuit Court [now district court] that jurisdiction 
could not be maintained should be final,” since, even in 
the case of applications for removal on the ground that the 
case involved questions of federal law, “ finality was . . . 
expedient as questions of the latter character if decided 
against the claimant would be open to revision [on direct 
review by the Supreme Court of the state court’s judg­
ment] . . . , irrespective of the ruling of the Circuit Court 
in that regard in the matter of removal.” Missouri Pacific 
Ry. Co. v. Fitzgerald, 160 II. S. 556, 583 (1896). It must 
be remembered that when Federal questions arise in causes 
pending in the state courts, those courts aie perfectly com­
petent to decide them, and it is their duty to do so. Ibid.

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



matters. Compare Durfce v. Duke, 375 U. S. 106 (1963), 
with Fay v. Noia, 372 U. S. 391 (1963). The protection of 
the federal rights and interests of the civil litigant may 
perhaps he committed to the unreviewahle decision of a 
single federal district judge on the theory that the mere 
question of tin; forum” is not worth the inconvenience of 
more extended litigation, in view of the competency of 
state tribunals to decide federal questions. B\it, at least 
since 1867, Congress has manifested a particular unwilling­
ness to commit to the state courts the final disposition 
of factual issues underlying those questions in criminal 
eases. Act of February 5. 1S67, ch. 28, §1, 14 Stat. 385, 
now 28 U. S. C. §2241 (c) (3 ); Fay v. Now, supra; Townsend 
v. Sain, 372 IT. S. 293 (1963). By the habeas corpus juris­
diction, it has expressed “ the manifest federal policy that 
federal constitutional rights of personal liberty shall not be 
denied without tin* fullest opportunity for plenary federal 
judicial review.’ ' Fay v. Noia, supra, at 424. And since 
1885, when it restored the Supreme Court’s jurisdiction 
over habeas appeals. Act of March 3, 1885, ch. 3o3, 23 Stat. 
437, it has shown itself unwilling to leave the federal 
judicial protection of state criminal defendants to a-single 
federal judge in a court of first instance. Against a back­
ground of history and context which unambiguously demon­
strates the exclusively civil direction of the 1887 removal 
provisions, it is in the last degree implausible to attribute 
to a portion of those provisions'—now §1447(d)—a purpose 
to strip of all federal appellate redress the state criminal 
defendant who unsuccessfully asserts before trial a color­
able claim for removal.

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



** n * c* x \ i .

39

provided: “ That nothing in this act shall be held, deemed, 
or construed to repeal or affect any .jurisdiction or right 
mentioned either in sections six hundred and forty-one
. . .  or in seven hundred and twenty-two, or in title twenty- 
four of the Revised Statutes . . . ” or in other enumerated 
statutes principally affecting civil rights. Seep. CT^supra. 
Section 641, the civil rights act (civil and criminal) re­
moval provision, was carried forward without substantive 
change as $31 of the Judicial Code of 1911, see pp. O—
supra, and in 1918 was reenacted with changes in phrase­
ology as 28 U. S. C. $1413 (1958), see pp. ®''5?7p7HT"Sec- ' 
lion 722 of the Revised Statutes was the present 42 U. S. C. 
$1988 (1958), set out below.42 Title 24 comprised the sub­
stantive civil rights act provisions, Rev. Stat. $$1977-1981, 
now found in 42 U. S. C. $$1981, 1982, 1983, 1985 and 1986 
(1958), see p..p .  n. together with certain enforce­
ment provisions. Thus, the provisions saved by $5 in 1887 
remain extant. And the saving clause itself was preserved

/C-/7

42 Rev. Stat. §722 derived from the same Act of April 9. 180(5, 
ch. 21, §3, 14 Stat. 27. reenacted by the Act of May 31, 1870, ch. 
114, §18, 10 Stat. 140, 144, which created the civil rights removal 
jurisdiction, present 28 IJ. S. C. §1443 (1958), invoked by respon­
dents in the present cases. See pp. Q  supra. Section 722 is^_~.

“ Sec. 722. The jurisdiction in civil and criminal matters 
conferred on the district and circuit courts by the provisions 
of this title, and of Title ‘Civil R ights,’ and of Title ‘Crimes,’ 
for the protection of all persons in the United States in their 
civil rights, and for their vindication, shall be exercised and 
enforced in conformity with the laws of the United States, so 
far as such laws are suitable to carry the same into effect; but 
in all eases where they are not adapted to the object, or are 
deficient in the provisions necessary to furnish suitable reme­
dies and punish offenses against law, the common law, as 
modified and changed by the constitution and statutes of the 
State wherein the court having jurisdiction of such civil or 
criminal cause is held, so iar as the same is not inconsistent 
with the Constitution and laws of the United States, shall be 
extended to and govern the said courts in the trial and dis­
position of the cause, and, if it is of a criminal nature, in the 
infliction ol punishment on the party found guilty.”



’iM <wwMiw£ii Jittiiu iktiiU

40

bv §297 of the 1911 Code, which expressly repealed every 
section of the 1887 act save §5, and further provided that 
“ all other . . . parts of Acts, in so far as they aie embraced 
within and superseded by this Act, are hereby repealed; 
the remaining portions thereof to be and remain in force 
with the same effect and to the same extent as if this Act 
had not been passed.” P. G , supra. It is difficult to Jim , 
agine what more affirmative indication Congress could have~ - r'*

~given~of its purpose to retain uninterrupted the protec­
tions of the civil rights acts’ removal provisions in and 
after 1887. Neither §5 of the 1887 act nor §297 of the Judi­
cial Code have ever been expressly repealed (indeed, §297 
continues §5 in force); and, in view of the legislative his­
tory of 28 V. S. C. §144.7 (d) enacted in 1949 with a pur- 
pose to continue former law, see pp. O  supra, appel­
lants hardly need the benefit of the usual presumption43 to 
resist any contention of implied repeal.

Authorities relied upon for the proposition that the 
saving clauses of 1887 and 1911 do not preserve a right to 
review of remand orders in civil rights removal cases 
do not survive close analysis. United Slates v. Rice, 327 
IT. S. 742 (1946), may be put aside, for the case involved 
no issue under the saving clause and did not puipoit to 
discuss its effect. The footnote in Gay v. Tluj], 292 U. S. 
2o, pp. 29-30, n. 5 (1934), is dictum, expresses only a tenta­
tive judgment, and overlooks the force of §297 of the Ju 
dicial Code of 1911. Snypp v. Ohio, 70 F. 2d 535 (6th Cir.

' 1934), is still more tentative and altogether-unreasoned; 
the court in fact exercises jurisdiction over the appeal and 
affirms the remand order, apparently on the ground that the

2  i

«  K R United Mates v. Noce, 268 U. S. 613, 619 (1925) ; United 
States vl Jackson, 302 U. S. 628, 631 (1938); United Slates v. 
Borden Co., 30S U. S. 188, 195-206 (1939); United States Alkali 
E.epori Assn. v. United States. 325 U. S. 196. 204-210 (194;.)).



41

substance of the appeal is more easily disposed of than the 
jurisdictional question. There remains Cole v. Garland, 101 
Fed. 759 (7th Cir. 1901), writ of error disin'd, 183 U. S. 693 
(1901). The Supreme Court’s disposition in Cote is not 
presently pertinent41 but the lower court s opinion does 
support the proposition for which it is cited. The case is 
somewhat of an instance of an easy case making bad law, 
both because the removal in Cole was patently unsupport- 
able as a civil rights matter and because Mr. Cole, a plain­
tiff in the state court, could not in any event have invoked 
the civil rights removal jurisdiction, which is limited to 
defendants—a point which the Seventh Circuit made an 
alternative ground of disposition. But the court’s reason­
ing is, in any event, wrong on its face. Its argument is 
that because §641 of the Revised Statutes does not contain 
within its four corners any provision for review of remand 
orders, any right to review of such orders depended in 
1887 upon the appeal provisions of the act of 1875; so that 
repeal in 1887 of the 1875 act abolished the right of appeal 
without “ affecting” any right given by §641. This is un- 
supportable on several grounds. First, it is clear that prior
to 1875 orders remanding removed cases to a state .court__n
were reviewable on mandamus. See pp. ©  supra. This 
was so by virtue of the appellate superintendence exer­
cised by the Supreme Court over the inferior federal courts, 
in the ordinary course of which a lower court’s wrongful 
refusal to assume jurisdiction would be reviewed. The 
only obstacle to this ordinary appellate review is the act 
of 1887, and to the extent that it makes unreviewable a 
usually reviewable decision defeating the right of removal 
given by §641, it “affects” that light. Second, the “ right”

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



42

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

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



43

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

Under 28 U. S. C. §2241 (a), the judges of this Court 
have authority to issue writs of habeas corpus, aud in this 
case they .may appropriately treat appellants’ papers of 
March 12, 1964 (App. p. Q  ), as applications to them in­
dividually for the writ. Waugaman v. United States, ft Hi 

No.-210Z7.,.decided- April-2U-1964; and see authorities 
cited supra p. Q  . The requirement of custody is satisfied 
by the restraints incident to respondents’ bail status^ cf. 
Jones v. Cunningham, 371 U. S. 236 (1963), particularly in 
view of appellants’ allegations of imminent danger that 
their bonds would be raised and that they were unable to 
make the raised bonds (App. p. ©  ). Because the legality 
of their continued state detention depends upon the validity 
of the order of the District Court, the case is an appropri­
ate one for discretionary retention of jurisdiction under 
28 U. S. C. §2241 (b) (1958).

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



44

*~> >

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

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

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



M - i .ItM ftL u

45

cannot enforce in the state courts their federal constitu­
tional rights, including rights of free expression and rights 
under the Due Process and Equal Protection Clauses of 
the Constitution (R. p. 236). Such assertions state a case of 

/  detention in violation of the federal Constitution, see cases 
cited mprc-ih. Q  ; Wright v. Georgia, 373 U. S. 284 (1963), 

i a f 1' ° v-> and would make a case for hearing but for the exhaustion 
doctrine of Ex parte Royall, 117 U. S. 241 (1886), and its 
progeny. E.g., New York v. Euo, 155 II. S. 89 (1894); 
Baker v. Grice, 169 U. S. 284 (1898).

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

40 Cong. Globe, 39th Cong., 1st Sess. 4151 (7/25/1866) (Repre­
sentative Lawrence). Representative Lawrence reported the House 
Bill from the Committee on the Judiciary. Id. at 4150. 47

47 Id. at 4151.



46

teenth and Fifteenth Amendments were written into law 
to overcome fierce Southern resistance to the emancipa­
tion.'18 Its exercise was inappropriate in normal times, 
and the exhaustion doctrine responded to the sense of in- 
appropriateness, as well as to the justified fear, reflected 
also in the doctrine of Stefanelli v. Minard, 342 U. S. 117, 
123 (1951), that the assertion of anticipatory federal power 
“would expose every State criminal prosecution to insup­
portable disruption.” “ Such direct intrusion in state proc­
esses does not comport with proper federal-state relation­
ships.” Cleary v. Bolger, 371 IT. S. 392, 401 (1963). The 
practice accordingly grew of withholding federal relief in 
the ordinary case until the ordinary state channels for 
raising federal claims had been in due course of the state 
trial exhausted.

Of course, the exhaustion doctrine was never a doctrine 
entirely denying the legitimacy of federal intervention in 
advance of a state criminal trial. Where the federal in­
terest asserted was sufficiently weighty or the probable 
efficacy of state remedies fully to protect that federal in­
terest insufficiently sure, pretrial federal habeas corpus 
was available."19 When Congress partially50 codified the ex­
haustion doctrine in 1948, 28 U. S. C. §2254 (1958), it 
recognized the validity of the exceptions to the ordinary 
rule and carefully preserved substantial authority for 
extraordinary exercises of federal judicial power where 
needed. Under §2254, an application for a writ of habeas

48 See Randall, T iie Civil W ar and Reconstruction (1937); 
M cK itrick, A ndrew Johnson and Reconstruction (1960).

49 E.g., Wildcnhus’s Case, 120 U. S. 1 (1887); Iv re Lonci/, 134 
U. S. 372 (1890); In re Ncaejlc, 135 U. S. 1 (1890); Ohio v. Thomas, 
173 U. S. 276 (1899) (after justice’s trial).

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



47

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

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



___ ~ ~ * i* * a . ------------------------ ini - L

48

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

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

As the case is properly before this Court as on peti­
tion for an order in the nature of mandamus, see pp. O —1 
supra, the 10-day appeal period of Fed. Rule Crim. Pro. " "  °
37(a)(2) has no application, 'flic matter is cognizable on 
original application to the Court of Appeals, whose juris­
diction is not confined by the appeal provisions of the 
Criminal Rules. Cf. Coppedge v. United Slates, 369 U. S.
438, 445n. 10 (1962). The timeliness of an application for 
mandamus is governed by principles of laches, In re 
Iloliorsl, 150 U. S. 653 (1893), within the broad discretion 
which is commonplace to the extraordinary writ, La Buy 
x. Howes Leather Co., 352 V. S. 249 (1957).

_ 81 The appeal was timely within 30 days. Fed. Rules Civ. Pro. 
73(a), 8 1 (a )(2 ); 28 U. S. C. §2107 (1058). Concededly, appel­
lants have not yet obtained a certificate of probable cause under 
28 IJ. S. C. §2253 (1958), but the judges of the Court of Appeals, 
may, m their discretion, issucya certificate in the proceeding before 
them. See Peppers v. BajAxtm/.>331 F. 2d 150 (5tli Cir. 1964) 



49

II
Appellants’ Verified Removal Petition States Facts 

Sufficient to Authorize Removal Under Section 
1143(1) and (2).

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

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

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

b
(B) The substantially probable case doctrine adhered 

_____ ""—to hy the court below is too restrictive a construction
of Section 1443(1) to justify remand

Section 3 of the Act of 1S6G, codified as Rev. Stat. Sec.
641, first reached the Supreme Court in 1879. Strauder v. 
TFc.sY Virfjiiiia, 100 U. S. 303 (1S79) sustained its constitu­
tionality and held that under it a sufficient case for re­
moval was stated hy the petition of a Negro charged with 
murder in a West Virginia state court which alleged that 
by reason of an 1873 West Virginia statute restricting



-  -  -------•. a i^ itr ia m fiH u  ■...-. . tu**  ------ ' i h i ii'Wf«<r»----------------------- ———— <_

50

eligibility for jury service to white males, Negroes were 
excluded from grand and petit juries in the state courts. 
Virginia v. Rives, 100 U. S. 313 (1879), decided with 
Straudcr, is a key case in the evaluation of present Sec. 
1443(1). In Rives, a federal trial court had assumed re­
moval jurisdiction on a petition alleging that petitioners 
were Negroes charged with murder of a white man; that 
there was strong race prejudice against them in the com­
munity; that the grand jury which indicted them and the 
jurors summoned to try them were all white; that the 
prosecutor and judge had refused petitioners’ request that 
one third ol the trial jury hi* composed of Negroes; that, 
notwithstanding the state laws required jury service of 
males without discrimination of race, Negroes had never 
been allowed to serve as jurors in the county, in any case 
in which their race was interested. The State of Virginia 
sought a wTrit of mandamus in the Supreme Court to com­
pel the lower federal court to remand the case, and the 
Supreme Court issued the writ. Reading its opinion nar- 
Jowly, it appears that the Court found petitioners’ allega­
tion.-. fall short of showing that any civil right wras denied, 
or that there had been any discrimination against the de­
fendants because of their color or race. The facts may 
ha\e been as stated, and yet the jury which indicted them, 
and the panel summoned to try them, may have been im­
partially selected.” Id. at 322. What was wanting as a 
matter of pleading (jn those early days before the Court’s 
experience in the trial of jury discrimination claims bred 
the “ prima facie” showing doctrine of, e.g., Reece v. Geor­
gia, 3,)0 IT. S. 85 (1955) was an allegation of purposeful 
or intentional discrimination, and the Court said that this 
might have been supplied by averment that a statute law 
of the State barred Negroes from jury service. “ When a 
statute of the State denies his'right, or interposes a bar



51

to his enforcing it, in the judicial tribunals, the presumption 
is fair that they will be controlled by it in their decisions; 
and in such a case a defendant may affirm on oath what is 
necessary for a removal.” 100 U. S. at 321. Thus, by rea­
son of the requirement of factual showing under the re­
moval statute that a defendant could not enforce his federal 
rights in the state court, the Court said that the inability 
to enforce federal rights of which the removal statute 
spoke “ is primarily, if not exclusively, a denial of such 
rights, or an inability to enforce them, resulting from the 
Constitution or laws of the States rather than a denial first 
made manifest at the trial of the case.” Id. at 319.

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



rfU .

52

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

“ [103 U. S. 3SG] . . . that the constitutional amendment 
was broader than the provisions of sect. 641 of the 
Revised Statutes; that since that section only author­
ized a removal before trial, it did not embrace a case 
in which a right is denied by judicial action during the 
trial, or in the sentence, or in the mode of executing the 
sentence; that for [387] denials, arising from judicial 
action, after the trials commenced, the remedy lay in 
the revisory power of the higher courts of the State, 
and, ultimately, in the power of review which this court 
may exercise over their judgments, whenever rights, 
privileges, or immunities, secured by the Constitution 
or laws of the United States, are withheld or violated, 
and that the denial or inability to enforce in the judi­
cial tribunals of the States, rights secured by any law 
providing for the equal civil rights of citizens of the 
United States, to which Sect. 641 refers, is, primarily, 
if not exclusively, a denial of such rights, or an inability 
to enforce them, resulting from the Constitution or 
laws of the State, rather than a denial first made mani­
fest at the trial ot the case. AVe held that Congress had 
not authorized a removal where jury commissioners or



53

other subordinate officers had, without authority de­
rived from the. Constitution and laws of the State, 
excluded colored citizens from juries because of their 
race.”

“ The essential question, therefore,” said the Court, was 
whether Negroes were excluded from Delaware juries “ by 
reason of the Constitution and laws of Delaware” (103 
IT. S. 387); and, finding that “ the alleged discrimination 
in the State of Delaware, against citizens of the African 
race, in the matter of service on juries, does not result 
from her Constitution and laws” {id., at 389), the Court 
found removal unauthorized. This ruling was repeated in a 
series of substantially identical cases at the end of the 
nineteenth century.52

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

** I)i each case Negro defendant was charged with murder in a 
state court and based his removal petition upon allegations of 
systematic exclusion of Negroes from the grand and petit juries 
Gibson v. Mississippi, 102 U. S. 565 (1896); Smith v. Mississippi, 
362 U. S. 592 (1896) ; Murray v. Louisiana, 163 U. S. 101 (1896) • 
Bush v. Kentucky, 107 IT. S. 110 (1882); Williams v. Mississippi 
170 U.S. 213 (1898).



------ i___ idob .3JXJ—___

54

candidate for Governor; (3) that Goebel’s killing aroused 
intense hostility toward Powers on the pax-t of Goebel 
Democrats and inflamed them against him; and that this 
hostility continued throughout his three trials and still 
existed; (4) that in each of Powers’ three trials the sheriff 
and deputies charged with jury selection, all being Goebel 
Democrats, connived with the trial judge to violate the 
regular state procedure for selecting juries, and instead 
systematically excluded Republicans and Independents 
from the jury panels and selected Goebel Democrats for the 
purpose of assuring Powers’ conviction; (5) that the judge 
at each trial denied Powers’ requests that the jury be 
selected equally from both political parties (approximat­
ing roughly equal popular vote each had polled at the 
last election), or that the jury be selected without refer­
ence to party, and overruled Powers’ objections to the 
jurors on the ground of systematic exclusion of Republicans 
and Independents; (6) that on each appeal, by force of 
a Kentucky statute which made decisions upon challenges 
to the panel and for cause, and upon motions to quash an 
indictment, unrevicwable, the Kentucky Court of Appeals 
had held that it had no power to upset the trial court’s 
rulings on the jurors—which decisions were the law of the 
case and as binding on the Kentucky courts as statutes; (7) 
that at each trial, Powers had pleaded in bar a pardon 
issued to him by Governor Taylor, who at the time of its 
issuance was the duly elected and acting Governor of the 
State; that the trial judge had refused to admit the pardon 
as a defense (this being the first time in Kentucky juris- 
piudence that a Kentucky court refused to give effect to 
an executive pardon); and that on each appeal the Court 
of Appeals had sustained this ruling—which decisions also 
were the law of the case and binding on the Kentucky 
courts; (8) that Powers was confined in jail without bail 
awaiting a fourth trial and, for all the foregoing reasons,



55

was unable to obtain a fair trial in the Kentucky courts. 
The lower federal court assumed jurisdiction on removal, 
concluding " ‘that the prior action of the Scott Circuit 
Court denying the defendant the equal protection of the 
laws is a real hindrance and obstacle to his asserting his 
right thereto in a future trial therein—just as real as an 
unconstitutional statute would be—and that the defendant 
is denied the equal protection of the laws in said court, 
within the meaning of said section, and entitled to a re­
moval on account thereof.’ ” 201 U. S. at 36. On the State’s 
appeal and petition for mandamus, the Supreme Court held 
that this was error, that removal was improper, and it 
ordered the case remanded to the state court. The Court 
noted that, notwithstanding the state Court of Appeals 
would not entertain Powers’ claims of error in denial of 
his federal rights, review of those claims could be had by 
writ of error issued from the Supreme Court to the state 
trial court after conviction. And as the Court read its 
earlier cases as holding that the statute

‘‘ [201 U. S. 30] . . . did not give the right of removal, 
unless [31] the constitution or the laws of the State 
in which the criminal prosecution was pending denied 
or prevented the enforcement in the judicial tribunals 
of such State ol the equal rights of the accused as se­
cured by any law of the United States. Those cases, as 
did the prior ones, expressly held that there was no 
right of removal under section 641, where the alleged 
discrimination against the accused, in respect of his 
equal rights, was due to the illegal or corrupt acts of 
administrative officers, unauthorized by the constitution 
or laws of the State, as interpreted by its highest 
court. For wrongs of that character the remedy, it was 
held, is in the state court, and ultimately in the power 
of this court, upon writ of error, to protect any right 
secured or granted to an accused by the Constitution



56

or laws of the United States, and which has been de­
nied to him in the highest court of the State in which 
the decision, in respect of that right, could be had.”

Before and particularly following Powers, the lower federal 
courts have consistently held that unless a slate constitu­
tional or statutory provision unconstitutional on its face 
is alleged to deprive a defendant of his federal rights, 
removal under present Sec. 1443(1) is unauthorized.58

L

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

California v. Damson, 12 F. Supp. 813 (N. D. Cal. 1935) _4"peti- 
tion for leave to appeal denied, 80 F. 2d 388 (jury prejudice aris­
ing from presence on jury panel of jurors called at two prior 
trials of defendant for m urder);

Petition of ITagewood, 200 F. Supp. 140 (E. D. Mich. 1961) 
(inter alia, defendant charged with prison break is deprived of 

s' fair trial by reason of local prejudice in prison break eases) ;
Texas v. Doris, 105 F. Supp. 738 (S. D. Tex. 1958) (inability to 

obtain fair trial where complainants control the county);
W cllx jp  parte, 3 Wood 128 (Bradley, C.J., 1878) (local preju­

dice) 7"
New Jersey v. Weinberger. 38 F. 2d 298 (I). N. J. 1930)-(trial 

judge prejudice);
Hull v. Jackson County Circuit Court, 138 F. 2d 820 (Gth Cir. 

1943) (removal of state habeas corpus alleging trial judge adverse 
to petitioners’ claims) ;

Hill v. Pcnnsyhania. 183 F. Supp. 126 (AY. D. Pa. I960) (re­
fusal of state prosecutor to accord speedy tria l);

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

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

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

Sntjpp v. Ohio, 70 F. 2d 535 (6th Cir. 1934) (Blue Sky L aw ); 
North Carolina v. Jackson, 135 F. Supp. 682 ((ft. 4). N. C., 1955) 

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

(prejudice against Xegro defendant from school desegregation).



0 1

Distinguishing Poivers from anything is not easy be­
cause Powers is"so senseless-a-decision that It 'offers- mr 
logic with, whicli to-workr The Powers opinion does not 
purport to support its holding, but merely relies on previ­
ous cases which in turn rely on Rives. Rives—the only 
case in whicli an attempt was made to explain what the 
Court was doing—seems to rest on the reasoning that be­
fore a prosecution may be removed a substantially prob­
able case must be made that the state courts will indeed not 
adequately protect the defendant’s federal rights, and that 
such a case is made if a state constitution or statute on its 
face infringes those rights. But this is dubious reason­
ing because (a) only unreasonable assumptions about state 
judges—-assumptions even in Rives, apparently contrary 
to those which caused Congress to enact the removal pro­
visions5*—could support the conclusion that those judges 
will ordinarily be astute to protect federal constitutional 
rights in the absence of an unconstitutional state statute: 
and (b), if those unreasonable assumptions are indulged, 
there is no sufficient reason for refusing also to assume that 
the state judges will perform their obligation under the 
Supremacy Clause to ignore an unconstitutional state stat­
ute. And in Powers, where the lower federal court reason­
ably found a clearly demonstrated probability that the 

^state courts would violate defendant’s federal rights, thenŜ '/‘ 
C £oint applied and extended the Rives doctrine in entire 

disregard of its rationale.

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

‘"’HSernotr—



58

is taken of Powers, it is easy enough to explain away the 
earlier cases, supra pp. ©""and "note" d r 'o ^ flio 'llie o ry  "
that in none of them did there appear an adequately sub- S  21
stantial probability that federal rights could not be en­
forced in these state courts, because none of the grounds 
alleged for removal sufficiently impugned the state judges, 
in whose hands—notwithstanding attempts by jury com­
missioners and other subordinate officials, defendants’ con­
stitutional rights might have been safe. This interpreta­
tion is supported by language in Neal, where the Court 
said, 103 U. S. 392, that “ had its [the State’s] judicial 
tribunals, by their decisions, repudiated that amendment 
[the Fourteenth] as a part of the supreme law of the land, 
or declared the acts passed to enforce its provisions to be 
inoperative and void, there would have been just ground 
to hold that there was such a denial, upon its part, of equal 
civil rights, or such an inability to enforce them in those 
tribunals, as, under the Constitution and within the mean­
ing of that section, would authorize a removal of the suit 
or prosecution to the Circuit Court of the United States.”

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

Title 2S U. S. C. Sec. 1443(2) (195S) allows removal by 
a defendant of any civil action or prosecution “ [1] For 
any act under color of authority derived from any law 
providing for equal rights, or [2] for refusing to do any 
act on the ground that it would be inconsistent with such 
law.” Neither half of this authorization has been defini­
tively construed.55

85 In Hodgson v. Millward, 12 Fed. Cas. 285, No. 6, 568 (Grier. 
C.J., E. D. Pa. 1863), approved in Braun v. Saucrwcin, 10 Wall.



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

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

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



/

60

Slat. 105, 19S; also Act of March 3, 1815, cli. 93, Sec. 6, 3 
Slat. 231, 233. InJSSS,' responding to South Carolina’s re- 

rligainst thefariff, Congress enacted the Force Act 
of March 2, 1S33, c.h. 57, 4 Stat. 632, whose second section 
envisioned that private individuals, as well as federal of­
ficers, might take or hold property pursuant to the revenue 
laws; and whose Sec. 3, 4 Stat. 633 allowed removal of any 
“ suit or prosecution . . . against any officer of the United 
States, or other person, for or on account of any act done 
under the revenue laws of the United States, or under color 
thereof, or for or on account of any right, authority, or 
title, set up or claimed by such officer, or other person 
under any such law of the United States. . . . ” The 1S831. 
act was applied to other revenue laws by the Act of March 
1, 1864, ch. 20, Sec. 9, 13 Stat. 14, 17, and the Act of June 
30, 1S64, ch. 173, Sec. 50, 13 Stat. 223, 241. By the Act of 
July 13, 1866, eh. 184, 14 Stat. 98, Congress (a) generally 
amended the revenue provisions of the Act of June 30, 
1864; (b) in Sec. 67, 14 Stat. 171, authorized removal of 
any civil or criminal action “against any officer of the 
United States appointed' under or acting by authority of 
[the Act of June 30, 1804, and' the amendments thereto]
. . . or against any person acting under or by authority of 
any such officer on account of any act. done under color of 
his office, or against any person holding property or estate 
by title derived from any such officer, concerning such prop­
erty or estate, and affecting the validity of [the revenue 
laws] . . . and (c) in Sec. 68, 14 Stat. 172, repealed the 
removal provisions (Sec. 50) of the Act of June 30, 1864, 
and provided for the remand to the state courts of all pend­
ing removed cases which were not removable under the 
new I860 removal provisions.

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

J
2 3 S

i



61

Act of March 3, 1863, ch. 81, 12 Slat. 755, was a Civil War 
measure. It undertook principally to authorize Presiden­
tial suspension of the writ of habeas corpus, and to im­
munize from civil and criminal liability persons making 
searches, seizures, arrests and imprisonments under Presi­
dential orders during the existence of the rebellion. Sec­
tion 5, 12 Stat. 756, allowed removal of all suits or prose­
cutions “against any office]-, civil or military, or against 
any other person, for any arrest or imprisonment made, 
or other trespasses or wrongs done or committed, or any 
act omitted to be done, at any time during the present 
rebellion, by virtue or under color of any authority derived 
from or exercised by or under the President of the United 
States, or any act of Congress.” This was the predecessor 
of the removal provisions of the Act of April 9, 1866, ch. 
31, Sec. 3, 14 Stat. 27, the first Civil Rights Act. The 1866 
statute was reenacted by reference in the civil rights act 

< of 1870 (The Enforcement Act of May 31, 1870, supra, 
), and, with stylistic changes, became Rev. Stat. Sec. 

j  " 641; supra, p,__© . In 1911, in the course of abolishing 
j y' .-'the old Circuit Courts, Congress technically repealed Rev. 

Stat. Sec. 641 (Judicial Code of 1911, Sec. 297, 36 Stat. 
1087, 1168) but carried its provisions forward without 
change (except that removal jurisdiction was given the 
district courts in lieu of the circuit courts) as Sec. 31 of 
the Judicial Code (Judicial Code of 1911, Sec. 31, 36 Stat. 
1087, 1096). Section 31 verbatim became 28 U. S. C. Sec. 
74 (1940). and in 1948, with changes in phraseology,56 it 

/  assumed its present form as 28 IT. S. C. Sec. 1443 (1958), 
i supra, pp, Q  .

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

56 Revisor’s Note to 28 U. S. C. Sec. 1443 (1958), p. 0  supra.



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

The history also suggests grounds for rejecting alterna­
tive (13), which would restrict that class of “ persons” to 
persons authorized by federal officers to assist in the en­
forcement of the Civil Rights Acts. The strongest basis 
for such a restriction of removal is that the 1866 act desig­
nates as removable any suit or prosecution of officers or 
persons “ for any arrest or imprisonment, trespasses, or 
wrongs done or committed by virtue or under color of au­
thority derived from this act or the act establishing a 
Bureau for the relief of Preedmen and Refugees, and all 
acts amendatory thereof . . . ” [emphasis added]. This 
language, which on its face might seem directed rather to 
actions arising from law enforcement activity than to ac­
tions arising from exercise of the rights given by the law, 
is patterned on the identical phraseology of the 1863 
habeas corpus act, where the authorization of removal of 
actions against officers or persons “ for any arrest or im­
prisonment made, or other trespasses or wrongs done or 
committed, or any act omitted to be done, at any time dur­
ing the present rebellion, by virtue or under color of any 

r 'authority derived from or exercised by or under tbo Presi- 
h dent of the. United States, or any act of Congress” .pretty 

clearly was addressed to actions arising from arrests, sei­
zures and injuries inflicted by Union officers and persons



63

acting under them.57 However, conceding that the 1866 act 
adopts the basic framework of the act of 1S63, it is evi­
dent that it adopts it for oilier and broader purposes. 
\A hereas the 1863 legislation was concerned principally 
with protecting Union officers in their conduct of wartime 
activities, and gave no rights or immunities to private in­
dividuals, the later statutes to the “ color of authority” of 
which the 1866 act refers—the 1866 Civil Rights Act itself, 
the Freedmen's Bureau Act of March 3, 1S65, ch. 90, 13 
Stat. 507, and the amendatory Freedmen’s Bureau Act of 
July 16, 1866, 14 Stat. 173 (which Avas debated by the 1866 
Congress as companion legislation to the 1866 Civil Rights 
-Act) did grant to private individuals extensive rights 
and immunities in the assertion of which it was foreseeable 
that “ trespasses or wrongs” might be charged against 
them. Section 1 of the 1866 Civil Rights Act, 14 Stat. 27, 
and Sec. 14 of the amendatory Freedmen’s Bureau Act, 
14 Stat. 176, for example, gave all citizens the right to

"Section 4 of the 1863 act, 12 Stat. 756, provided that any order 
of the President, or under his authority, made during the rebellion, 
should be a defense to any suit or prosecution for any search’ 
seizure, arrest or imprisonment done, or acts omitted to be done’ 
under the order or act of Congress. Section 7, 12 Stat. 757, pro­
vided a two-year statute of limitations for any suit or prosecution 
for any arrest or imprisonment or other trespasses or wrongs done, 
or act omitted, during the rebellion under presidential order or 
act of Congress. Section 5, 12 Stat. 756 authorized removal of 
suits or prosecutions against any officer or other person for any 
arrest or imprisonment or other trespasses or wrongs done or act 
omitted, during the rebellion, by virtue or under color ’of any 
authority derived from or exercised by or under presidential order 
or act of Congress. These provisions were obviously an integrated 
packet, and the Court in Bigelow v. Forrest, .0 Wall. 339 (1 8 6 9 )  
(holdmg that actions of ejectment were not removable under the 
J863 act, but that the act reached only actions for personal wromrsl 
said that: _“ [9 Wall. 348] The specification which all of these sec­
tions contain, of arrests and imprisonments, or, as in the fourth 
section or searches [3 4 9 ], seizures, arrests, and imprisonments, 
followed by more general words, justifies the inference that the 
other trespasses and wrongs mentioned are trespasses and wroiws 
ejusdem generis, or of the same nature as those which had been 
previously specified.”



64

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

1

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



<£. t o > » — i..

civil rights. Tims, demon'-t rahly, Sec. 1442(2) authorizes

( I ) )  Aj)ji< Hunts alleged sufficient fuels, if proved, 
sustaining remowd under 1 4 1 2 (2 )

Claimed denials of the full enjoyment of equal civil 
rights by state officers acting under color of law are

y'  cognizable in the Fnited States District Courts as matters 
of first impression. Tick II’o v. Ila/ikins, 118 U. S. dad

) I'ape, 2(5.") F. S. 1(17 (10(51); flornshft v. Allen, 2d
(;">111 Cir., 19(54). See also Title 11, Sections 201(d) and 

! 20r.(a),-Civil Rights Act of 19(54.

interpretation to civil rights statutes so as to shape an ap­
propriate remedy for the vindication of the equal rights

Appellants allegations (1) that their arrests were effected 
for the sale purpose of furthering a racially discriminatory 
practice, (2) that they could not enforce their equal civil 
rights “ in the Courts of the State of Georgia . . . because 
the State of Georgia by statute, custom, usage and prac­
tice supports and maintains a policy of racial discrimina­
tion" states a removal claim. Taplor v. Louisiana, .‘170 U. S.

Lombard v. Louisiana, .‘>7.1 C. S. lit>7 (19(52); l'elersan v.

Appellants’ verified r moval petition alleged the requisite 
Section 14411(2) jurisdictional facts which, if proved, would 
entitle them to proceed to trial in the federal court, and the 
district court has the power to receive evidence and try

removal hi/ ana /arson exercising rights granted by “any 
law providing for equal rights."

Federal courts have statutory authority to give elastic

of citizenship. Iirucier v. Ckenu. 2!).'l F. 2d 401 (f)th Cir. 
19(51); 42 II. S. C. 198.8 (1!).'>8)) see p. Q  supra.

(ire, neille,:\7.\ F. S. 214 (19(52); (Irit)in v. Mari/laml, No. (>. 
October Term. 19(!.‘l, F. S. Sup. Ft., decided, June 22, 19(14.



cs

(lit' jurisdictional facts. /V>/i'to v. .l/o/usAp/, 1-3 I'. 2d .>_’S 
(1941), ccrt. denied 313 V. S. SOI. See also Tomisrml v. 
Sain, 372 IT. S. at 313 (10C.3).

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

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

Ill

Failure to Bring Over Indictments Poes Not Justify 
Heinnml.

Appellants’ failure to attach the indictments returned 
against them is not such an omission which renders the re­
moval petition legally insufficient as urged by the appellees. 
Tn the circumstances of the ease, that is a matter wholly 
committed “ to thr infnrwnl discretion of the District 
Court". See Lofton, cf at. v. ('it u of If attiesburfi, Missis- 
si ppi. No. JJI ttl (f>th Cir. decided dune 4, 11X14).

Manifestly, the district judge considered the removal 
petition sufficient in all formal particulars, since nowhere 
in his opinion does he suggest any modal or formal defect 
(It. 10-13).

Failure to bring over the indictments does not justify 
remand, hut remedy is by statutory writ of certiorari or 
other appropriate order of the Court. Miller v. Soulr, 221 
F. 403 (3rd Cir., 1013); 2̂  V. K. ('. 1447(h).



Tide -JS, V. S. 1147(a) null/ requires removal peti­
tioners to fill' together with the petition all process, plead 
n,r> and orders s e tie  11 upon them in the action. H\ i on- 
stitiitional provision in Georgia and in every state in the 
old conlederacv, one accused ol crime may obtain a cop\ 
of the accusation or indictment on hi upon demand. Article 
I, paragraph f>, Constitution of the State of Georgia of 
1047)”  ( Emphasis added.) Obviously, imposition of such 
a requirement would effectively bar or severely handicap 
resort to the United States District Court to vindicate fed­
eral equal civil rights. See Brotherhood of Iiatffond I tain- 
men v. Virginia ex rel. Virginia State Bar, U. S. . 
12 L. ed; 2d SO (10(14).

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

'•‘‘ Nine states lmvc constitutional or code provisions allowing the 
accused a copy of the indict incut in various cases.

]. Upon request, Florida, Georgia and West Virginia allow 
a copy in all eases. (Fla. Const, art. f>, See. !>; Fla. Slat. Ann. 
Sees. 32.18 and 2()<ilS; Ga. Const, art. 1, see. 1; Ga. Code 
Ann. e. ‘27-7. See. 27-704 and e. 27-14, See. 27-1402; \V. X a. 
Const, art. 2, Secs. 4 and 14, XX . X a. ( ode e. 0120.)

2. Upon request, Mississippi, South Carolina and Tennessee 
allow a copy in capital eases. (Miss. Const, art. 2, Sees. 20 
and 27; Miss. Code Ann. See. 27)07); S. C. Const, art. 1. See. 
17; Code of Laws of S. C. titles 17-101 and 17-404; Tcni). 
Const, art. 1, See. 9; Term. Code Ann. Sees. 40-1702 and 
40-200H.)

2. Arkansas. Louisiana and Texas provide a copy without 
request in capital eases and require a request in all other 
eases. (Ark. Const, art. 2, Sees, h and 10; Ark. Const, amend. 
21; Ark. St.it, Ann. Sees. 42-1201 and 12-1207); La. Const, art. 
1, See. !l; La. Stat. Aim. Nee. 17i;222.1; Tex. Const, art. 1. 
See. 10; X’ernoii s Ann C. C 1’. arts. 412. 4L>, 447-420.)

(17

'■J*



.> <'1*. w. ifal idlUtLbk i ->

6 s

To construe Title 2s U. K. ('. 1440(a) os requiring n copy 
of tlic indictment nnd/or informution to ho attached to each 
removal petition would result in the subversion of the statu­
tory scheme by emasculation of L’s 1’ . S. ( ’. 1447(h) (10.>s). 
The Reviser’s notes make it unequivocally certain that (lie 
latter provision was drafted and designed so as to ''pro­
vide the utmost simplicity and flexibility of procedure .in 
hr in y in y the State court record to the district court." His­
torical and Revisor Notes, 2̂  I -. S. ('. A.. Sec. 1447. p. 440. 
(Emphasis added.)

CONCLUSION

The Motion to Dismiss This Appeal Should Re Denied 
and the Order o f Remand Vacated With Directions.

Respectfully submitted,

Donai.o 1,. lIou.nwKt.n 
HowAun Moot!!:, Jit.

KbDlo Hunter Klroet, N.W.  
Atlanta, (ieorgin 00014

J a c k  ( J i t i . K N m i a ;

10 Columbus Circle
New York, New York 10010

Attorneys for A pprllnnts

Of Counsel

A n t h o n y  («. A mstkudam 
Mi.uvyn Ztiut 
A n n  Coon.u  
.To ns  (Ji Aiu.rs, ,Tu.



% aWSAaEfeiiBti

()!»

Certificate of Service

Tliis is to certify that on the day of ,!nlv, 10(>4,
I served a ropy of the foregoing Brief for Appellants 
upon Koliert Sparks, Assistant Solicitor General, Atlanta 
Judicial Circuit, Boom M01, Fulton County Courthouse 
Building, Atlanta, Georgia, Attorney for Appellee, hy mail­
ing a copy thereof to him at the above address via U. S. 
mail, postage prepaid.

Attornrii for ApprUonts